Petition — JACKSON v. UNITED STATES (Nos. 76-1360, 76-1314)

Supreme Court brief1976

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IN THE

Supreme Court of the United States

October._Term, 1976

No. _ b re ()

EDDIE JACKSON, RONALD GARRETT,

FAIRH LEE RIGGS, CHARLES RUDOLPH,

and CHARLES CAVANAUGH,

Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

> APPEALS FOR THE SIXTH CIRCUIT

HENRY ROTHBLATT

232 West End Avenue

New York, N.Y. 10023

Attorney for Petitioners

JON G. ROTHBLATT

Of Counsel

April 1977

(6227)

COUNSEL PRESS. wc., 55 Went 42nd Sereet, Mow York, W.Y. 10006 « PE 60000

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INDEX

OPINIONS BELOW. . « «+ «© «© © © @ »

JURISDICTION . . . . . . . . . . .

QUESTIONS PRESENTED ...++-s-s

STATUTES INVOLVED ....++ + «© «© «

STATEMENT OF THE CASE ...+ +s «+

Cc.

Bmeweeguetiewm « « es ec ee

Electronic Surveillance .

1. The wiretap .... .

2. Pre-trial suppression

motions . « « «© «© « e

3. Trial disclosures of

government informant .

4. Renewal of suppression

motion . . « « e« ee e

5. Facial insufficiency

@f orGer ..« « © « «

Application of the Pinker-

tom Bul@ «2c ce ec ec ec ee

REASONS FOR GRANTING THE WRIT... . 22

I. This case raises important

issues concerning 18 U.S.C.

§ 2518(1) (Cc) . «© « © © « « 22

II. In failing to require sup-

pression where a wiretap

order was insufficient on

its face, the court below

has misconstrued and render-

ed meaningless 18 U.S.C. §

2518(10) (a) (ii) « «© «© «© » + GI

III. This case should be remand-

ed for proper determination

of petitioners’ liability

under the substantive counts

of the indictment ..... 38

CONCL US I ON . . . * . . *. . . . . . . 4 2

APPENDIX--

Opinion of the Court of Appeals la

Order Denying Petition for Re-

hearing ..+<«+e¢eeeeee 928

Excerpt of Memorandum Opinion

and Order Denying Motion to

Suppress Wiretap Evidence . . 53a

Excerpt of Memorandum Opinion

Denying Defendants’ Motion

For Rehearing Re: Suppression

of Wiretap Evidence... .. 55a

iii

Excerpt of Memorandum Opinion

and Order Concerning Trial

Issues 7 7 * . * 7 7 7 7. .

Findings and Conclusions Pur-

suant to Rule 23(c) ...

Affidavit of Ronald S. Gari-

botto >. . J >. . * . . * 7

TABLE OF AUTHORITIES

Cases:

Pinkerton v. United States,

United States v. Acon,

U.S. 928 (1970) . ae 2 at - - a

Aguilar v. Texas, 378 U.S. 108 (1964)

Glazerman v. United States, 421 F.2d

r.), cert. denied, 398

Levine v. United States, 383 U.S. 265

328 U.S.

Berger v. New York, 388 U.S. 41 (1967)

63a

89a

) = a a ae . 20,21,22,38,

39,41

r. . . * . * . . *

r. . * * . . .

r. . . . * . . . .

United States v. Anderson, 542 F.2d

United States v. Bobo, 477 F.2d 974

513 F.2d 513

United States v. Chavez,

(1974 ) . = .2 2 ae

United States v. Curreri, 388 F.Supp. 607

1974).

United States v. DiMuro, 540 F.2d 503

(Ist

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

r. ° .

Page

416 U.S. 562

30,32,35,36,38

>> eee 26

. ee + 2

(1974)

» 23,24,30,32,36,37

United States v. Kalustian, 529 F.2d

United States v. Pellicci, 504 F.2d 1106

, cert. denied, 419

(Ist

Ir.

U.S. 1122 (1975)...

United States v. Schwartz, 535 F.2d 160

> *

United States v.

urt,

United States v.

r. - >.

United States v. vig P

“Cir.), cert.

(1975)

Statutes:

18 U.S.C.

§ 2516(1) .

§ 2518(1) (a)

Vento,

515 F.2d 209

enied, 432 U.S. 912

United States v. Knippenberg, 502 F.2d

United States District

535 F.2d 838

(6th

«+ 26

- 34

o © © « « 34,35

» « 6,13,20,31,34

6,31

Page

18 U.S.C. § 2518(1)(c) . . 4,7,8,13,14,18,22,

24,25,27, 30

18 U.S.C. § 2518(3)(c) . ~~. + + + ~~ 7,23

18 U.S.C. § 2518(4) (4) . ~~... « 7,31,37

18 U.S.C. § 2518(10)(a) . .. ~~. ~~ ~ 8,35

18 U.S.C. § 2518(10) (a) (i) . 4,8,24,32,33, 35,36

18 U.S.C. § 2518(10) (a) (ii) . 5,8,19,31,34,35,

36,37,38

18 U.S.C. § 2518(10) (a) (iii) . «~~ « « « 8,37

21 U.S.C. § 841 . 2. we we we © eee eve F

21 U.S.C. § 846 .. «© © © © © e wo « 9

Other Authorities:

ABA Standards Relating To Electronic

Surveillance (Approved Draft 1971) .. 24

Note, Electronic Survet) tances Title 7it

And The irement o ecessity,

Hastings Const. L.Q. 571 [ . «23,24,27

e - y= i

a ° é a

: 4

e 4

pie ee

ri pres

a. s

e *.

bd a?

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: on i hy part eee

- Pv

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

EDDIE JACKSON, RONALD GARRETT,

FAIRH LEE RIGGS, CHARLES RUDOLPH,

and CHARLES CAVANAUGH,

Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioners, Eddie Jackson,

Ronald Garrett, Fairh Lee Riggs, Charles

Rudolph and Charles Cavanaugh, respectfully

request that a writ of certiorari issue to

review the judgment and opinion of the

United States Court of Appeals for the

Sixth Circuit entered in this proceeding

on October 8, 1976.

OPINIONS BELOW./

‘The opinion of the court of appeals

is reported at 544 F.2d 242 and is set

forth in the Appendix hereto (Pet. App. la).

1/ During the course of this proceeding

the district court issued several written

opinions on various issues. Included in

the Appendix hereto are those portions of

opinions believed necessary for consider-

ation of this petition. We will promptly

file any additional portions of the

record upon request of the Court.

Relevant portions of the opinions

of the district court, and its findings and

conclusions of law, which are not reported,

are set forth in the Appendix hereto (Pet.

App. 53a, 55a, 58a, and 63a).

JURISDICTION

The judgment of the court of ap-

peals was entered on October 8, 1976.

A timely petition for rehearing, with a

suggestion for rehearing en banc, was de-

nied on February 2, 1977 (Pet. App. 52a).

On timely application, Mr. Justice Stewart,

On February 28, 1977, extended the time for

filing this petition to and including April

4, 1977. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether 18 U.S.C. § 2518(1)(c),

which requires an application for an order

authorizing the interception of wire com-

munications to include a full and complete

statement regarding other investigative

procedures, is violated where an appli-

cation erroneously states that normal ave-

nues of investigation are closed, and fails

to disclose the availability of signifi-

cant investigative alternatives.

2. Whether the factual statements

in an application for an order authorizing

the interception of wire communications

may be impeached.

3. Whether a violation of 18 U.S.C.

§ 2518(1)(c) requires suppression of

evidence pursuant to 18 U.S.C. § 2518(10)

(a) (i).

EE EE

SOUS OPO <4 Oe eee eer

4. Whether an order authorizing

the interception of wire communications,

which states that the individual who auth-

orized the application was an Acting Assis-

tant Attorney General, is insufficient on

its face within the meaning of 18 U.S.C. §

2518(10) (a) (ii) so as to require the sup-

pression of evidence obtained pursuant

thereto.

5. Whether a co-conspirator can

be held criminally liable for substantive

offenses committed by other members of

the conspiracy before he had joined or

after he had withdrawn from the con-

spiracy.

STATUTES INVOLVED

18 U.S.C. § 2516

(1) The Attorney General, or any

Assistant Attorney General specially

designated by the Attorney General,

may authorize an application to a

Federal judge of competent juris-

diction for, and such judge may

grant in conformity with section

2518 of this chapter an order

authorizing or approving the inter-

ception of wire or oral communi-

cations by the Federal Bureau of

Investigation, or a Federal agency

having responsibility for the in-

vestigation of the offense as to

which the application is made...

18 U.S.C. § 2518

(1) Each application for an order

authorizing or approving the inter-

ception of a wire or oral communic-

ation shall be made in writing upon

oath or affirmation to a judge of

competent jurisdiction and shall

state the applicant's authority

to make such application. Each

application shall include the

following information:

(a) the identity of the in-

vestigative or law enforce-

ment officer making the

application, and the officer,

authorizing the application.

——— ——-_-«

* 7 oJ o *

ment 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;

* « « “ *

(3) Upon such application the judge

may enter an ex parte order, as re-

quested or as modified, authorizing

or approving interception of wire

or oral communications within the

territorial jurisdiction of the

court in which the judge is sit-

ting, if the judge determines on

the basis of the facts submitted by

. the applicant that --

7 o . 7 7

cedures have been tried and

have failed or reasonably ap-

pear to be unlikely to succeed

if tried or to be too danger-

ous;

oJ ” * * oF

(4) Each order authorizing or

approving the interception of any

wire or oral communications shall

specify --

o * * * +

(ad) the identity of the

agency authorized to intercept

e communications, and of

the person authorizing the

application;

7 * os * *

(10) (a) Any aggrieved person in

any trial, hearing, or proceeding

in or before any court, department,

officer, agency, regulatory body,

or other authority of the United

States, a State, or a political

subdivision thereof, may move to

suppress the contents of any inter-

cepted wire or oral communication,

or evidence derived therefrom, on

the grounds that --

(i) the communication was

unlawfully intercepted;

(ii) the order of author-

ization or approval under

which it was intercepted is

insufficient on its face; or

(iii) the interception was

not made in conformity with

the order of authorization

or approval.

Such motion shall be made before

the trial, hearing, or proceeding

unless there was no opportunity

to make such motion or the person

was not aware of the grounds of

the motion. If the motion is grant-

ed, the contents of the intercept-

ed wire or oral communication, or

evidence derived therefrom, shall

be treated as having been obtained

in violation of this chapter. The

judge, upon the filing of such mo-

tion by the eggnseves person, may

in his f* on make available

to the aggrieved person or his coun-

sel for inspection such portions of

the intercepted communication or

evidence derived therefrom as the

judge determines to be in the in-

terests of justice.

« « o oF 7

STATEMENT OF THE CASE

A. Introduction

Petitioners were indicted on Jan-

vary 4, 1972, in the United States Dist-

rict Court for the Eastern District of

Michigan. Count One of the 16-count in-

dictment, No. 46597, charged a single con-

spiracy to manufacture, distribute and

possess heroin and cocaine in violation of

21 U.S.C. § 846, and named 17 defendants

and 15 unindicted co-conspirators. Counts

Two through Sixteen charged each defendant

with substantive violations of 21 U.S.C.

§ 841 in connection with possession of

narcotics. In a companion indictment, No.

46598, the 15 unindicted co-conspirators

in indictment No. 46597 were charged with

the identical offenses, and the 17 defen-

dants in indictment No. 46597 were named as

unindicted co-conspirators.

Following consolidated pre-trial

proceedings, jury trials were waived and

both indictments were tried simultaneously

before two district judges. Each of the

petitioners herein was found guilty of

conspiracy and 13 of the substantive

counts.2/ Eddie Jackson was sentenced to

concurrent fifteen-year terms of imprison-

ment on ten counts to be served consec-

utively with concurrent five-year terms of

imprisonment on four counts, plus a com-

mitted fine of $5,000 on each count and a

/ Of the 32 individuals named in the two

ndictments, 17 were convicted of multiple

counts, 10 were acquitted of all counts,

and five were severed prior to trial.

special three-year parole term. Ronald

Garrett received concurrent terms of

twelve and one half years' imprisonment on

each count, with a special parole term of

three years and a committed fine of $1,000

on each count. Fairh Lee Riggs received

concurrent terms of seven years’ imprison-

ment on each count, with a special parole

term of three years. Charles Rudolph was

sentenced to ten years’ imprisonment on

each count, with a special parole term of

three years and a committed fine of $1,000

on each count. Charles Cavanaugh was given

concurrent terms of seven years' imprison-

ment on each count, with a special parole

term of three years and a committed fine of

$1,090 on each count. Each petitioner is

presently in custody serving the above-

mentioned sentence.

B. Electronic Surveillance

1. The wiretap.

During the investigation preced-

ing the indictments in this case, the

government obtained an order in the United

States District Court for the Eastern Dis-

trict of Michigan which authorized the in-

terception of wire communications from a

telephone located at 19315 Hubbell Street,

Detroit, a private house that was the

alleged headquarters of a large narcotics

conspiracy. The order, authorizing 20

days of interception, was issued on Novem-

ber 11, 1971, and was extended for an ad-

ditional 15 days on December 1, 1971.

Conversations intercepted pursuant to this

order were a major portion of the govern-

ment's evidence at trial.

2. Pre-trial suppression motions.

Prior to trial, petitioners filed

motions to suppress the wiretap evidence

on a number of grounds, including, inter

alia, (a) the government's failure to ob-

tain prior authorization for the appli-

cation from the "Attorney General, or any

Assistant Attorney General specifically

designated by the Attorney General,” as

prescribed in 18 U.S.C. § 2516(1); and

(b) the failure to satisfy the require-

ment of 18 U.S.C. § 2518(1)(c) that the

application contain "a full and complete

statement as to whether or not other in-

vestigative procedures have been tried and

failed or why they reasonably appear to be

unlikely to succeed if tried or to be too

dangerous." (Joint App. at 760-773, 849-

852, 665-670) .2/

A "Joint App.” refers to "Appellants'

oint Appendix on Appeal,” consisting of

seven separate volumes filed by petition-

ers in the court below.

As to the latter ground, petition-

ers contended that the supporting affida-

vit of Agent Ronald Garibotto,-/ upon which

the application was primarily based, was

too general and conclusory, and failed to

allege specific facts sufficient to satis-

fy the "full and complete statement" re-

quirement of § 2518(1)(c). The district

court dismissed this contention, finding

the Garibotto affidavit sufficient on its

face (Pet. App. 53a-57a).

3. Trial disclosures of government

informant.

The government's principal inform-

4/ The affidavit of Agent Garibotto is

set forth in the Appendix hereto (Pet.

App. 89a).

ant during its investigation of petitioners

was Roosevelt Nabors. Referred to in

the Garibotto affidavit as "S-1," it was

Nabors' activities in connection with two

undercover narcotics sales which provided

the basis of the government's showing of

probable cause in the wiretap application.

He was also called as a government wit-

ness at trial, where he testified exten-

sively concerning his dealings with the

so-called "Jackson/Blair® narcotics organ-

ization.

While he was being examined by

government counsel at trial, Nabors dis-

closed that during his undercover activ-

ities on behalf of the government in No-

vember-December, 1971, he was asked by

George Blair (allegedly one of four key

figures in the narcotics conspiracy),

whether he wished to become a "“lieuten-

ant" in the Jackson/Blair organization.

Nabors testified that upon reporting this

to Agent Garibotto, he was specifically in-

structed to decline the invitation. There-

after, pursuant to this directive, Nabors

informed Blair that he did not wish to

accept the position in the organization. At

that point, having declined the offer, Nabors

was asked to leave the organization's head-

quarters because a “lieutenant's meeting" of

the major figures in the operation was about

to take place (Joint App. at 1178-1183).

The above events, the occurrence of

which is not disputed by the government

(see Brief for the United States at 54,

80), took place during the same period of

the investigation described in the Garibotto

affidavit. Yet the affidavit, and partic-

ularly paragraphs 19 & 20 thereof dealing

with the exhaustion of normal investig-

ative procedures (Pet. App. 102a-104a), —

makes no mention of this opportunity that

was presented for Nabors ("S-1") to

infiltrate the organization at the highest

level. No reason is given as to why it

was not exploited. The affidavit, sub-

mitted just days after the offer to Nabors

was turned down, is completely silent as to

the entire matter.

4. Renewal of suppression motion.

After these disclosures at trial,

petitioners immediately renewed their

motion to suppress the wiretap evidence on

grounds that Nabors' testimony refuted

critical representations that had been made

in obtaining the interception order, to wit,

that "all normal avenues of investigation

are closed” (Pet. App. 104a); that normal

investigative procedures were unlikely to

succeed in establishing the identity of

Jackson's and Blair's confederates or other

details of their operation (Pet. App. 102a-

103a); and that there was an inability to

"move any further vertically or horizon- -

tally in the JACKSON/BLAIR operation” (Pet.

App. 103a). Petitioners contended that in

light of the actual facts, the Garibotto

affidavit was false and misleading, had

suppressed highly relevant information,

and had therefore clearly failed to satis-

fy the "full and complete statement” re-

quirement of 18 U.S.C. § 2518(1)(c).

However, the district court denied

the motion, stating that the above facts do

not “substantially detract" from the Gari-

- botto affidavit, because, in the opinion of

the court, "[nJarcotics distribution oper-

ations are extremely complex. . . [t]hus

it would be unlikely that Nabors could

learn the extent of the alleged conspir-

acy even if he .. . infiltrated the organ-

ization. ..,°" and that "with his lenghty

prior criminal record, Nabor's [sic]

reliability, both during the investiga-

tion and as a witness at trial, was mar-

ginal at best." (Pet. App. 60a). In ad-

dition, the district court held that the

Garibotto affidavit was not sufficiently

"tainted" so as to justify reconsideration

of the issuing judge's finding that normal

investigative procedures were unlikely to

succeed. (Pet. App. 6la). In affirming,

the court of appeals essentially adopted

the district court's analysis. (Pet. App.

26a).

5. Facial insufficiency of order.

As to the other ground for suppres-

sion, petitioners contended that the inter-

ception order was insufficient on its

face, requiring suppression of the wiretap

evidence pursuant to 18 U.S.C. § 2518(10) (a)

(ii), because the order stated that Acting

Assistant Attorney General Henry E. Peterson

had approved the application. Since 18

U.S.C. § 2516(1) limits the authorization

power to "(t]he Attorney General, or any

Assistant Attorney General specifically

designated by the Attorney General," pe-

titioners argued that an Acting Assistant

Attorney General is not a proper official.

The court below rejected this argu-

ment because the district court had found

that in spite of what was stated in the

application and order, the Attorney Gen-

eral himself had given the approval in

this case. (Pet. App. 24a).

C. Application of the Pinkerton Rule

After finding each of the petition-

ers guilty of the conspiracy count, the

district court applied the rule of Pinker-

ton v. United States, 328 U.S. 640 (1946),

and found petitioners guilty of each of

thirteen substantive counts held to have

been committed in furtherance of the con-

spiracy.>/ (pet. App. 84a~-85a).

In a post-trial memorandum opinion

and order, the court described its inter-

pretation of the Pinkerton rule as follows:

In Pinkerton v. United States, 328

U.S. 640 (1946), the Supreme Court

held that each co-conspirator may

be held accountable for all sub-

stantive offenses committed in fur-

therance of a conspiracy. There-

fore, as applied in the present

cases, once a defendant is shown to

be a member of the conspiracy, he

may be found guilty of not only

Count One but also of each substan-

tive offense charged in Counts Two

through Sixteen which were commit-

ted in furtherance of the conspir-

acy.

(Joint App. at 125).

Petitioners argued that Pinkerton

5 Petitioner Eddie Jackson was also

ound guilty of counts three, four, thir-

teen, fourteen, fifteen and sixteen as a

principal. (Pet. App. 86a-87a).

had been misapplied because the district

court failed to consider the period each

defendant was a member of the conspiracy

in relation to the time a particular sub-

stantive offense was committed. The court

below did not address this argument, say-

ing only that it was “constitutionally re-

quired to follow the Supreme Court's de-

cision in Pinkerton." (Pet. App. 39a).

REASONS FOR GRANTING THE WRIT

THIS CASE RAISES IMPORTANT ISSUES

CONCERNING 18 U.S.C. § 2518(1) (c)

As a precondition to the use of

electronic surveillance, Congress provided,

in 18 U.S.C. § 2518(1)(c), that an appli-

cation for an interception order must

include:

a full and complete statement as

to whether or not other investi-

gative procedures have been tried

and failed or why they reason-

ably appear to be unlikely to

succeed if tried or to be too

dangerous; ...

In turn, the judge to whom the

application is submitted must determine,

prior to issuing an interception order,

that:

normal investigative procedures

have been tried and have failed

Or reasonably appear to be unlikely

to succeed if tried to be too

dangerous; ...

18 U.S.C. § 2518(3)(c). See United States

v. Giordano, 416 U.S. 505, 515 (1974);

Note, Electronic Surveillance, Title III,

And The Requirement of Necessity, 2 Hast-

ings Const. L.Q. 571 (1975).

The issue raised in this petition

is whether the application upon which the

government obtained a wiretap order in

this case satisfied this requirement.

Petitioners contend that it did not, and

that accordingly, the evidence obtained as

a result of the wiretap should have been

suppressed pursuant to 18 U.S.C. § 2518(10)

(a) (4) .&/

Petitioners argued in the courts be-

low, ana still maintain, that the appli-

cation here, based upon the affidavit of

Special Agent Ronald S. Garibotto (Pet.

App. 89a), does not on its face satisfy

6/ There is no question here of standing,

at least as to petitioners Jackson,

Garrett, Cavanaugh and Rudolph (see Brief

for United States at 42 n.24). Nor do we

believe it can seriously be argued that the

§ 2518(1)(c) requirement does not "direct-

ly and substantially implement the con-

gressional intention to limit the use of

intercept procedures to those situations

clearly calling for the employment of this

extraordinary device," United States v.

Giordano, supra, at 527, so as to require

the sanction of suppression. Indeed,

§ 2518(1)(c) has strong Fourth Amendment

underpinnings. See Berger v. New York,

388 U.S. 41, 60 (1967); -ABA Standards Re-

lating to Electronic Surveillance at 139-

140 (Approved Draft 1971); Note, Electron-

ic Surveillance, Title III, And re-

ment o , Supra, a

the requirements of § 2518(1)(c). The

relevant paragraphs (19 & 20) consist

primarily of general statements about the

agent's experience with narcotics conspir-

acies, and his conclusions concerning the

likely course of the investigation. By

failing to present sufficient details con-

cerning this caze, he deprived the issuing

judge of the facts necessary to arrive at

a neutral and detached determination of

the necessity for electronic surveillance.

Cf. Aguilar v. Texas, 378 U.S. 108 (1964).

Moreover, the practice of permit-

ting interception applications to be based

upon the general nature of the criminal

activity being investigated, rather than

the facts of the particular case, virtually

guarantees approval of the application for

certain categories of crime (e.g., gam-

bling and narcotics). Certainly this was

not the Congressional intent in enacting

Title III. See United States v. Kalustian,

529 F.2d 585, 589 (9th Cir. 1976) (affi-

davit held insufficient where it contained

mere conclusions and failed to set forth

facts adequately showing why traditional

investigating techniques of alleged gam-

bling activities were not sufficient) ;

United States v. Curreri, 388 F.Supp. 607,

622) (D. Md. 1974) (affidavit which failed

to state reasons why investigative tech-

niques other than wiretaps were not con-

sidered likely to succeed held not suf-

ficient to warrant issuance of wiretap

order). As one student of the subject has

observed (prior to the above decisions):

[The] lack of explanation of the

necessity requirement has permit-

ted courts to interpret its mean-

ing with few restrictions and has

led to the virtual "reading out”

of the requirement from Title III.

Research has revealed no case

holding that the showing of neces-

sity required by Title III has

not been met in an application for

an interception order. Boilerplate

allegations of necessity are fre-

quently accepted as sufficient show-

ings. Judicial opinions dealing

with the necessity issue usually

have treated the requirement and

the factual situation in which the

application arises in a cursory

manner, simply finding that the

requirement has been met.

Note, Electronic Surveillance, Title III,

And The Requirement of Necessity, supra, at

573 (footnotes citing cases omitted).

But here, even if the Garibotto

affidavit had been adequate on its face,

subsequent disclosures made at trial con-

tradicted its principal averments dealing

with normal investigative procedures, and

made it quite apparent that Agent Garibotto

had withheld extremely relevant information

from the applicetion (see pp. 13-17, supra).

This certainly cannot be the “full and com-

plete statement" that Conmraress found essen-

tial when it enacted § 2518(1)(c).

However, the court below found no

error because it acreed with the district

court that “even as a lieutenant, Nabors

would have had difficulty in learning all

the complex details of the widespread or-

ganization,” and "in view of Nabors’ lengthy

prior criminal record, the government would

have had great difficulty in establishing

criminal liability by his testimony alone"

(Pet. App. 26a).

Perhaps Judge Kennedy (the issuing

judge), had she been made aware of all of

the facts, would have taken a similar

position, and found an adequate necessity

for the interception notwithstanding the

opportunity for further investigation

through the use of Nabors.— But the

7/ And perhaps not. The facts withheld

from Judge Kennedy indicated that Nabors

[cont'd next page]

critical point, which the court below

apparently failed to consider, is that

Judge Kennedy was not presented with these

7/ [cont'd] had gained the confidence of

the most important members of the so-called

Jackson/Blair narcotics organization. It

was Blair himself who invited Nabors to

become a "lieutenant." In addition, there

was no indication that Nabors, whom the

government's application described as

having provided “consistently reliable and

valuable information” (Pet. App. 92a),

was unwilling to testify. (Nabors did in

fact testify, both before the grand jury

and at trial). These are both factors

which have been considered significant in

determining the potential for success of

normal investigative procedures. Compare

United States v. DiMuro, 540 F.2d 503

(Ist Cir. I576) (informants ‘unwilling to

testify); United States v. Schwartz, 535

F.2d 160 (2d Cir. 1576) (informant not

taken into confidence of conspirators and

unwilling to testify); United States v.

Vento, 535 F.2d 838 (3rd Cir. 1576) (in-

formants unwilling to testify); United

States v. Bobo, 477 F.2d 974 (4th Cir.

1973) (informants refused to testify).

United States v. Anderson, 542 F.2d 432

nformants would not

testify).

facts. That is the defect here, and spec-

ulation as to what action the issuing judge

might have taken had she been properly

advised is simply besides the point.

This Court has made it clear that

"strict adherence by the Government to the

provisions of Title III" is required.

United States v. Chavez, 416 U.S. 562, 580

(1974). Also see United States v. Giordano,

416 U.S. 505 (1974); United States v. United

States District Court, 407 U.S. 297 (1972).

Here the government failed to comply with

18 U.S.C. § 2518(1)(c) because its wiretap

application did not include a full and

complete statement concerning the further

investigative procedures that were avail-

able through continued use of its infor-

mant, and the reasons, if any, these pro-

cedures appeared unlikely to succeed.

The court below has misconstrued an

important federal statute which is in need

of definitive interpretation by this Court.

II.

IN FAILING TO REQUIRE SUPPRESSION

WHERE A WIRETAP ORDER WAS INSUFFICIENT

ON ITS FACE, THE COURT BELOW HAS MIS-

CONSTRUED AND RENDERED MEANINGLESS

18 U.S.C. § 2518 (10) (a) (ii)

Pursuant to 18 U.S.C. §2516(1),

an application for a wiretap order may be

authorized by "[t]he Attorney General, or

any Assistant Attorney General specially

designated by the Attorney General ...."

It is further provided that the officer

authorizing the application must be iden-

tified in both the application and the en-

suing court order. 18 U.S.C. § 2518(1) (a),

(4) (d).

In United States v. Giordano, 416

U.S. 505 (1974), this Court held that where

a wiretap application and order indicated

that approval had been given by an Assistant

Attorney General, when in fact the appli-

cation had been approved by the Attorney

General's Executive Assistant, the evidence

obtained pursuant to the order had to be

suppressed because the communications were

"unlawfully intercepted" within the mean-

ing of 18 U.S.C. 2518(10) (a) (i).

In United States v. Chavez, 416

U.S. 562 (1974), the wiretap application

and order also misidentified the author-

izing official. They indicated that

authorization had been given by Assistant

Attorney General Will Wilson, when in fact

it was the Attorney General himself who

had given the approval. Distinguishing

United States v. Giordano, supra, the Court

held that mere misidentification~of the

authorizing official on the application

and order, when authorization has in fact

been made by the Attorney General, does

not render interceptions conducted under

the order “unlawful” within the meaning of

§ 2518(10) (a) (i). 416 U.S. at 579.

In the present case the application

and order indicated that approval had been

given by Acting®/ Assistant Attorney General

Henry Peterson. It was later revealed,

however, that Mr. Peterson had not approved

the application, and following proceedings

on this issue, the district court found

that approval had been made by Attorney

8/ Henry Peterson became an Acting

Assistant Attorney General on October 15,

1971, upon the resignation of Will Wilson.

He was appointed by President Nixon and

confirmed by the Senate on February 14,

1972 (Joint App. at 736).

General Mitchell himself.

Petitioners contend that an “Acting”

Assistant Attorney General is not empowered

under § 2516(1) to authorize a wiretap

esptinensin.™ They argue therefore, that

regardless of who actually approved the

application, the order was “insufficient

on its face" and the wiretap evidence was

subject to suppression under § 2518(10) (a)

(ii).

The court below rejected this con-

tention on the basis of its prior decision

in United States v. Vigi, 515 F.2d 290(6th

Cir.), cert. denied, 432 U.S. 912 (1975),

9/ It was so held in United States v.

Acon, 513 F.2d 513 (3r Be

Contra, United States v. Pellicci, "504

F.2d 1106 (ist Cir. 1974), cert, denied,

T- U.S. 1122 (1975).

which involved the same circumstances.

In Vigi, the court held that United States

v. Chavez, supra, was controlling, and

without reaching the question of the

authority of an Acting Assistant Attorney

General to approve a wiretap application,

found that none of the grounds set forth in

§ 2518(10) (a) required suppression because

the Attorney General had actually given

approval.

However, in Chavez this Court

clearly distinguished suppression under

paragraph (10) (a) (i) from paragraph (10)

(a) (ii). With regard to (10) (a) (i) the

Court held (416 U.S. at 579):

When it is clearly established ...

that authorization . .. has been

given by the Attorney General him-

self, but the application, and,

as a result, the interception order,

incorrectly state that approval

has instead been given by a specially

designated Assistant Attorney Gen-

eral, the misidentification, by

itself, will not render inter-

ceptions conducted under the order

"unlawful" within the meaning of

§ 2518(10) (a) (i) ....

The Court had previously noted,

with respect to (10) (a) (ii), that:

Here, the interception order

Clearly identified "on its face”

Assistant Attorney General Wilson

as the person who authorized the

application to be made. Under

§ 2516(1), he properly could

give such approval had he been

specially designated to do so by

the Attorney General, as the

order recited. That this has

subsequently been shown to be

incorrect does not detract from

the facial sufficiency of the

order.

416 U.S. at 573-574 (footnote omitted).

Also see United States v. Giordano, supra,

at 525 n.14.

In United States v. Giordano, supra,

the Court held that the words "unlawfully

intercepted" in paragraph (10) (a)(i) are

not limited to constitutional violations,

but apply to those failures to satisfy the

statutory requirements of Title III "that

directly and substantially implement the

congressional intention to limit the use

of intercept procedures to those situations

clearly calling for the employment of this

extraordinary investigative device." 416

U.S. at 527. As a necessary corollary,

paragraphs (10) (a) (ii) and (10) (a) (iii)

must be deemed to require suppression for

less substantial violations that do not

render the interceptions "unlawful." See

416 U.S. at 526-527.

Petitioners contend that where an

interception order fails to correctly specify

the identity of the person authorizing the

application, as expressly required by

§ 2518(4) (ad), and names instead an indivi-

dual who, as a matter of law, lacks the

capacity to authorize the application,

such an order is insufficient on its face.

Under the plain meaning of § 2518(10) (a)

(ii), evidence obtained pursuant to such an

order is to be suppressed, regardless of

whether the interception procedure is other-

wise lawful. In failing to reach this con-

clusion, the court below misread this

Court's decision in United States v. Chavez,

supra, and rendered § 2518(10) (a) (ii)

meaningless. Review is necessary to cor-

rect this error.

Iit.

THIS CASE SHOULD BE REMANDED FOR

PROPER DETERMINATION OF PETITIONERS'

LIABILITY UNDER THE SUBSTANTIVE

COUNTS OF THE INDICTMENT

Applying the rule of Pinkerton v.

United States, 328 U.S. 640 (1946), the

district court found each of the petition-

ers guilty of 13 substantive counts (Pet.

App. 84a-85a). In a post-trial memorandum

opinion and order, the court indicated

that under Pinkerton, “once a defendant

is shown to be a member of the conspiracy,

he may be found guilty of not only Count

One but also of each substantive offense

charged in Counts Two through Sixteen

which were committed in furtherance of

the conspiracy." (Joint App. at 125).

The above statement omits an es-

sential element of criminal liability

under the Pinkerton doctrine, namely, that

the particular defendant was a member of

the conspiracy at the time the substantive

offense was committea.10/ See Levine v.

United States, 383 U.S. 265 (1966); United

States v. Knippenberg, 502 F.2d 1056 (7th

10/ Thus a defendant's criminal liability

under Pinkerton for substantive offenses

committed in furtherance of a conspiracy is

to be distinguished from his liability for

the conspiracy itself, where it is frequent-

ly held that he is responsible for acts com-

mitted by co-conspirators prior and subse-

quent to his joinder.

Cir. 1974); Glazerman v. United States,

421 F.2d 547 (10th Cir.), cert. denied,

398 U.S. 928 (1970).

Here the period of the conspiracy,

as alleged in Count One of the indictment,

was from September 26 to December 15, 1971.

The substantive offenses were alleged to

have occurred on October 18 (Count Two),

October 22 (Count Three), November 4 (Count

Four), November 8 (Count Five) and Decem-

ber 15 (Counts Six through Sixteen) of

1971. While the district court found each

petitioner guilty of Count One, and held

that all substantive offenses except

Counts Two and Five were committed in fur-

therance of the conspiracy, there were no

findings as to when each of the petitioners

joined the conspiracy, or whether there had

been withdrawl therefrom. 11/

1II7 Withdrawl is particularly relevant as

to petitioner Riggs, who was arrested in

[cont'd next page]

In view of the district court's mis-

interpretation of the law and failure to

make proper findings, as well as the na-

ture of the government's proof with regard

to petitioners Garrett, Riggs, Rudolph and

Cavanaugh, 12/ the validity of their con-

victions for the substantive offenses is

highly questionable.

The court below failed to address

this issue, except to note that it was

bound by this Court's decision in Pinkerton

(Pet. App. 39a), a point with which we ob-

viously do not quarrel.

Because Pinkerton was misapplied,

11/{cont'd] New York on September 26, 1971,

and remained in federal custody until No-

vember 22, 1971. All of the substantive

offenses charged in the indictment occur-

red during or subsequent to this period.

12/ These petitioners, none of whom di-

rectly participated in any of the substan-

tive offenses, vigorously contended in the

court below that the evidence was insuf-

ficient to support their conviction of con-

spiracy.

this case should be remanded for proper

determination of liability for the sub-

stantive offenses.

CONCLUSION

For the foregoing reasons, the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

HENRY ROTHBLATT

232 West End Avenue

New York, N.Y. 10023

Attorney for Petitioners

JON G. ROTHBLATT

Of Counsel

April 1977

‘la

Nos. 74-2337-53

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNrrep STATES oF AMERICA, )

| Plaintiff-Appellee,| -

Vv.

Cara Wooons, Jr., Witte Lee Kn - On A —

PATRICK, JOSEPH LEON WEAVER, United States District

James Recinacp Weaver, Eppie Court for the East

Jacxson, Courtney Brown, HeEr-{ District of Michigan,

BERT BELL, RoNALD GARRETT, SAM- Southern Divisi

vEL Horne, ALPHONZO JONES, FaIRH : ;

Lee Rices, CuHarces Rupovpu, La-

Ticla Burns, Maurice THOMPSON,

Leo Hurt, Georce Biam, CHARLES

CAVANAUGH,

_ Defendants-Appellants. |

Decided and Filed October 8, 1976.

Before: Ceesnezze, McCree, and Muuer,* Circuit

Judges.

McCrez, Circuit Judge. We have consolidated for consid-

eration the appeals of seventeen defendants from their con-

victions in the Eastern District of Michigan. Each appellant

had been charged in one of two similarly worded indictments

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

not participate in this opinion.

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

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

indictment, named fifteen uuindicted co-conspirators and sev-

enteen defendants, including appellants Eddie Jackson, Her-

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

Lee Riggs, Charles Rudolph, Charles Cavanaugh, Laticia

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

ney Brown. The other indictment, hereinafter the Kilpatrick

indictment, named as defendants the fifteen persons who were

unindicted co-conspirators in the earlier indictment, including

appellants Willie Kilpatrick, Joseph Weaver, James Weaver,

and Cara Woods. The persons named as defendants in the

first indictment were named as unindicted co-conspirators in

the second indictment. Cov: 1 of both indictments charged

a single conspiracy that continued from September to Decem-

ber 1971 to manufacture, distribute, and possess heroin and

cocaine in violation of 21 US.C. § 846. Counts 2 through

16 charged substantive violations of 2) U.S.C. § 841 com-

mitted during the period from October to December 1971.

One of these cases was assigned to. District Judge John

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

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

Consolidated pretrial evidentiary hearings were held to con-

sider various motions raised by appellants. In addition to

waiving their right to trial by jury, the various defendants

also agreed to proceed with a simultaneous bench trial before

Judges Feikens and Pratt in order to avoid the necessity of

two separate trials involving identical proofs.

Although the proceedings in the two separate cases were

conducted simultaneously, each judge was solely responsible

for all rulings affecting each defendant in the case assigned

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

sions regarding the guilt or innocence of each defendant in the

case assigned to him.

At the conclusion of their joint bench trial, all appellants

were found guilty on multiple counts and received sentences

ranging from three years’ imprisonment to twenty years’ im-

prisonment.' Appellants Kilpatrick, James Weaver, Joseph

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

Jones, Rudolph, Cavanaugh, and Hurt were convicted on

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

counts 8 and 9. And appellants Burns and Thompson were

convicted on counts 2 and 5.

The simultaneous trial conducted in the district court was

an understandable effort to accommodate indictments of the

magnitude and complexity that were obtained here by the

government. Nevertheless, this procedure has produced an

appellate record of extraordinary size with the consequence

that oral argument has been of less than usual assistance to

us in analyzing and deciding the issues presented on appeal.

Instead of beginning our opinion with a narration of the

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

appellate issue in our discussion of it.

1 The following appellants were convicted and sentenced by Judge

Pratt: Willie Lee Kilpatrick was convicted on counts 1, 3, 4, 6 through

16, and sentenced to concurrent terms of six years’ imprisonment on

each count, subject to the wf ~~ of 18 U.S.C. § 4208(a) (2),

with a special le term of years. In addition, the court

imposed a $2, committed fine on count 1. James Reginald Weaver

and Joseph Leon Weaver were convicted on counts 1, 3, 4, 6 through

16, and sentenced to concurrent terms of four years’ imprisonment on

each count, subject to the parole provisions of 18 U.S.C. § 4208(a) (2),

with a special parole term of three years. Cara Woods, Jr. was con-

victed on counts 8 and 9, and sentenced to concurrent terms of six

ears’ a on each count under the parole provisions of 18

usc. § (a) (2), with a special parole term of three years. The

court also im a $1,000 committed fine on each count.

The remaining appellants were convicted and sentenced by Judge

Feikens. Ap fants Jackson, Brown, Blair, Bell, Riggs, Garrett,

Horne, Jones, "ey Cavanaugh, and Hurt were convicted on counts

1, 3, 4, 6 through 16, and received the following sentences. Eddie

Jackson was sentenced to concurrent fifteen-year terms of imprison-

fifteen years’ imprisonment on each of counts 1, 3, 4, 6, 7, 8, 9, 10, 11,

and 12, to be served consecutively with concurrent terms of 2%

years’ imprisonment on each of counts 13 through 16, with a special

three-year term of parole, and a committed fine of $5,000 on each

I. WERE DEFENDANTS PROPERLY INDICTED?

the

tha

placed

complied with 18 U.S.C. § 2518

government

appellants’ criminal trials.

Third, they argue that the government misused

the grand jury to intimidate persons whom the

validity

contend

they con

ps was

intended to call later as witnesses in

jury before the government

, appellants urge that the indictments were multipli-

citous. |

(10) (a).

tion intercepted by

Finally

of 1968, 28 U.S.C.

Appellants argue that the selection of the grand jury venire

as well as the selection plan adopted in the

violated the Jury Selection and Service Act

§ 1861 et seq

A. The Selection of the Grand Jury.

HL Hele :

eit 1.

jaltarines

naitiss it

Eastern District of Michigan because an improper voting list

was used, an unauthorized person took part in the compilation

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

out of the office to her home.

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

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

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

stipulated that precisely the same challenges to the grand

jury venire had already been submitted to Judge Feikens

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

parties in McNeal agreed to be bound at the district court

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

in accordance with their rulings, the district court denied the

motion to quash the indictment in McNeal. On review we

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

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

determination in McNeal is dispositive of these appeals as well,

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

rise to them are before us again.

B. The Presentation of Wire Interception Evidence Before the

Grand Jury.

Immediately after their arrest, several appellants filed a

motion to suppress the wiretap evidence that they believed

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

disclosure of the applications and orders for the interceptions.

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

ing a preliminary hearing or presenting the wiretap evidence

‘ to a grand jury until ten days after obtaining the disclosure

they sought. The government opposed the motions, but

neither admitted nor denied the legality of the wire intercep-

tions. After hearing oral arguments, the district court held

that the government could not present wire interception evi-

dence at a preliminary hearing without disclosure, but other-

wise the district court denied the motions.

On the day scheduled for the preliminary hearing, appel-

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

mony of Special Agent Garibotto and evidence from the wire

interceptions. The return of the indictments made it unneces-

sary to conduct the preliminary hearing.

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

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

(9) provides that:

The contents of any intercepted wire or oral com-

munication or evidence derived therefrom shall not be

received in evidence or otherwise disclosed in any trial,

hearing, or other proceeding in a Federal or State court

unless each party, not less than ten days before the

PERSE

chat!

gge®

53 F

proceeding and that the party will

the delay in receiving such information.

Section 2518(10)(a) provides:

(i) the communication was unlawfully intercept-

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Finally, § 3504 states:

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

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

regulatory body, or other authority of the United States—

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

dence is inadmissible because it is the primary prod-

uct of an unlawful act or because it was obtained

by the exploitation of an unlawful act, the opponent

of the claim shall affirm or deny the occurrence of

Appellants contend that these sections authorized their mo-

tions to suppress, required the government to affirm or deny

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

ernment from relying on the evidence gathered as a result

of the interceptions until these requirements were satisfied.

Accordingly, they contend that their indictments must be

quashed because the government presented this evidence to

the grand jury before it replied to their challenge to the

interceptions. 18 U.S.C. § 2515 provides that no intercepted

wire communication or evidence derived therefrom may be

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

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

would be in violation of this chapter.”

We hold that the government was not required to comply

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

ception before it could introduce the intercepted communica-

tions before the grand jury, nor were appellants entitled to

prevent the presentation of this evidence to the grand jury

even if the interception were unlawful.

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

gress did not intend the ten-day disclosure requirement to

apply to grand jury proceedings. The Senate Report section-

by-section analysis provides that:

“Proceeding” is intended to include all adversary type

hearings. It would include a trial itself, a probation

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

duction of sentence. It would not include a grand jury

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

384 U.S. 251 (1966).

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

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

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

dant to challenge the evidence presented to the grand jury:

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

with sections 2515 and 2517, discussed above, which it

limits. It provides the remedy for the right created by

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

grand jury proceeding, the provision does not envision

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

a proceeding itself. Normally, there is no limitation on

the character of evidence that may be presented to a

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

v. United States, 8 S.Ct. 1416, 384 U.S. 251 [1966].)

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

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

press is granted in another context, its scope may include

use in a future grand jury proceeding.

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

added.

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

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

and supports the conclusion that they do not authorize a

defendant to suppress evidence before the grand jury on the

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

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

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

could refuse to answer questions that were based upon illegal

interceptions, and could defend against a contempt charge

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

dence before official bodies of the contents and the fruits of

9a:

illegal interceptions. The Court held that in the context of

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

sons may challenge illegally procured evidence, a “party

aggrieved”

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

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

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

ness’ potential testimony is inadmissible.

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

The Supreme Court drew a careful distinction between a

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

answer questions based upon illegal interceptions, and a de-

fendant or potential defendant. The Court held that:

The congressional concern with the applicability of

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

discernible from the Senate report, was apparently that

defendants and potential defendants might be able to util-

ize suppression motions to impede the issuance of indict-

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

of evidence that may Soe = sie

is eaforcible by on individual. [United States v ban

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

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

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

that a defendant is not entitled to have his indictme

dismissed before trial simply because the ee

[d] incriminating evidence in violation of the

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

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

v. United States, 355 U. §. 330 (1958): Costello v. United

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

whatever to do with the situation of a grand jury witness

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

sequent charge of contempt.

408 U.S. 59-60.

_ 10a

Accordingly, we hold that appellants were not entitled to

contest the legality of the intercepted communications before

the communications were submitted to the grand jury. Ap-

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

the admissibility of wiretap evidence at the scheduled pre-

liminary hearing, and that the government could not deprive

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

ment.

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

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

whole purpose and justification of the preliminary hearing has

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

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

preliminary hearing if a grand jury indictment is returned.

Although we have recognized that a preliminary hearing may

as a practical matter provide a defendant with an irreplace-

able opportunity for discovery, a defendant has no absolute

right to these ancillary benefits. For example, in Mulligan

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

government witness prior to trial, suffered no prejudice when

their preliminary hearing was continued to permit the govern-

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

cordingly, we hold that appellants suffered no legal prejudice

when the government proceeded by indictment, rather than

by a preliminary hearing at which appellants could have

contested the legality of the wire interceptions pursuant to 18

U.S.C. §§ 2518(10)(a) and 3504.

C. Improper Use of the Grand Jury.

Appellants also assert that the government improperly used

the grand jury to discover and preserve evidence to be used

at the trial of their already pending indictments. They assert

that both Burt and Nabors were called before the grand jury

to testify against appellants after appellants’ indictment. The

government concedes that it is improper to use a grand jury

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

lla.

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

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

support for appellants’ claim that Burt and Nabors were called

only to prepare pending indictments for trial. Additionally,

the government urges that appellants have not demonstrated

that any prejudice resulted from the alleged misconduct, and

it contends that only Nabors and Burt have standing to raise

the issue.

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

ceedings and appellants have the burden of demonstrating that

an irregularity occurred. Universal Manufacturing Co. v.

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

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

with the observation made by the First Circuit that:

grand jury proceedings cannot be policed in any detail.

It is a price we pay for grand jury independence that

sometimes people are indicted on the basis of evidence

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

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

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

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

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

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

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

(1919).

United States v. Doe, 455 F.2d 1270, 1274 (1st Cir. 1972).

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

abuse of the grand process which are t in the

counse!’s tion, or in the case of a tive

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

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

l2a

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

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

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

not interfere with the grand jury’s investigation.”

Neither appellants nor the government have cited to us

any portion of the record in which appellants presented this

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

uminous record to no avail. However, assuming that this~

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

sented nothing beyond their own unproved suspicions to prove

that Burt and Nabors were improperly summoned before the

grand jury for the sole or dominant purpose of preparing the

pending indictments for trial. Portions of the testimony at

trial suggest that after appellants were indicted, Burt and

Nabors did testify before the grand jury regarding some of

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

have made no showing that Burt and Nabors were not called

in order to determine whether other persons not yet indicted

were also involved in the conspiracy under investigation. The

indictments charged that appellants conspired with “divers

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

and the grand jury could properly call witnesses in an attempt

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

D. Multiplicity.

Appellants allege that they were improperly indicted and

convicted of five separate acts of possession with intent to

distribute a controlled substance,* when the proofs showed

of 5.1

Count a — Sia tes treet Seat

Count 16 — 83 grams of heroin hydrochloride

+ 16 —‘arength of B81%. =,"

l3a

that all the narcotics in question were found at the Hubbell

Street house, and that the intercepted wire communications

indicated that appellants had just received a single shipment.

Accordingly, appellants contend that the fragmentation into

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

lated their right to due process.

Apparently appellants raise this contention for the first

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

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

the indictment was multiplicitous by pretrial motion constituted

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

that “[d]efenses and objections based on defects . . . in the in-

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

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

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

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

constitute waiver thereof, but the court for cause shown may

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

Since it is not entirely clear from the general averments in

the indictments that the narcotics referred to in counts 12

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

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

this issue before the district court until the government pre-

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

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

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

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

Crim. P. 12(f).

Appellants also argue that counts 6 and 10 and counts 7

and 11 are multiplicitous, because they charge both distribu-

tion and possession with intent to distribute the same quanti-

ties of drugs. They urge that possession with intent to dis-

tribute is a lesser offense included within distribution. Again,

it appears that appellants did not raise this contention before

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

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

l4a

Il. WAS THERE GOVERNMENT MISCONDUCT THAT

REQUIRES REVERSAL?

Appellants contend that shocking governmental misconduct

requires the reversal of their convictions. They contend first

that a sham defendant was indicted in order to penetrate

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

the government improperly disclosed critical information to

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

erly intruded into the marital relationship of appellant Blair

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

Finally, they argue that the government improperly met with

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

A. The Sham Defendant.

Appellants contend that the government's misconduct in

indicting Roosevelt Nabors as a “sham defendant” requires

the reversal of their convictions. They contend that the sham

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

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

continued even after the indictment. Further, he was called

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

was charged after he had been indicted, and defense counsel

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

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

Appellants argue that the sham indictment of Nabors violated

the fundamental fairness guaranteed by the due process clause,

and violated their right to counsel by introducing a govern-

ment agent into the defense.

- Nabors testified that when he first began working with the

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

told that his cooperation would be communicated to the court

in connection with charges pending against him for attempted

murder and the unlawful driving away of an automobile. He

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

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

15a

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

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

government special agents could make purchases directly from

members of the Jackson organization. He was not authorized

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

testified that without the knowledge or authorization of the

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

from the Jackson organization on consignment. He said that

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

cuted because of this independent transaction.

Agent Garibotto testified that during a review of tape re-

cordings of the intercepted communications after the Decem-

ber 15 arrests at Hubbell Street, government agents discovered

that, without government authority, Nabors had called and

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

he had sold it. Garibotto testified that Nabors was indicted

in good faith for this unauthorized part in the conspiracy.

Although he had been severed from the other defendants

before trial, Garibotto testified that the government retained

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

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

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

he planned to make no recommendations one way or the

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

after his testimony before the grand jury so that Nabors could

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

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

that others in the BNDD might have done so.

Although appellants claim that Nabors was indicted in order

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

sented little evidence that Nabors was involved in appellants’

common defense. Although Attorney Milton Henry filed an

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

defendants, the court’s records demonstrate that counsel was

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

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

l6a

Nabors’ trial was severed from that of the other defendants

on the ground that the government expected to call him as

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

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

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

of the appellants, Kilpatrick.

We do not think that the record shows any government

misconduct. Appellants have not sustained their burden of

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

the district court appointed separate counsel shortly after his

arrest, actually intruded into the attorney-client relationship

between appellants and their counsel.

B. Pretrial Publicity Resulting from Governmental Disclo-

sures.

Appellants make two contentions about pretrial publicity.

First, they contend that the government improperly disclosed

to the press information gathered by wire interceptions. Sec-

ond, they contend that the volume of pretrial publicity made

it impossible for them to receive a fair trial.

1. Pretrial Disclosure of Intercepted Communications.

Appellants strenuously contended both in the district court

and in briefs and argument on appeal that the government

made improper pretrial disclosures of critical information to

the press. They urge that pretrial newspaper articles con-

tained “detailed recitals of wire interceptions, which could

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

paper article principally relied upon to support this contention

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

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

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

for prosecutorial misconduct, appellants specifically argued

that it was improper for the government to use information

from wire interceptions in an affidavit for a search warrant,

17a

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

without first making provision for its protection from disclo-

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

Thus we understand the gist of appellants’ argument to be

that the government had a duty to prevent unauthorized dis-

closures of their intercepted communications, and that the

government's failure to prevent disclosure of the information

recited in the affidavit requires the dismissal of the charges

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

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

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

has obtained knowledge of the contents of any wire or oral

communication” may disclose or use the information. Sub-

section (1) permits disclosure to another investigative or law

enforcement officer to the extent necessary for the performance

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

erally that intercepted information and communications may

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

official duties. And subsection (3) permits disclosure where

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

criminal or grand jury proceeding.’

Appellants contend that any disclosure not explicitly au-

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

not authorize either investigative or court personnel to dis-

close the contents of their intercepted communications to the

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

papers was illegal and that the only appropriate remedy is

the dismissal of the indictments.

The government argues that subsection (2) authorized gov-

ernment agents to disclose the contents of intercepted com-

$ Subsection (5) provides: ,

Such contents and any evidence derived therefrom may be used

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

roved by a judge of competent jurisdiction where such judge

on subsequent application that the contents were otherwise

intercepted in accordance with the provisions of this chapter.

Such application shall be made as soon as practicable.

18a

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

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

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

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

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

ment argues that dismissal of the charges against appellants

is not warranted merely because of the government's failure

to take extraordinary measures to seek restriction of access

to the court files, especially when appellants made no request

for such a restriction of access. The government notes that

the wiretap statutes provide three remedies — suppression,®

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

unlawful disclosure of intercepted communications are civil

damages and criminal penalties. The detailed provisions of

the Act contain no provision for the dismissal of pending

criminal charges.

We agree with the government that appellants have failed

to demonstrate any circumstances that warrant dismissal of

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

gressional intention to protect individual privacy, it would be

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

course, that the district court restrict access to documents

filed with the court that contain intercepted communications.

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

Appellants also contend that the pretrial publicity about

their cases was so pervasive and inflammatory that they could

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

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

cumstances appellants must show that the pretrial publicity

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

618 U.S.C. § 2515.

718 U.S.C. § 2520.

818 US.C. § 2511.

19a

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

district judges could not try them impartially, the remedy

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

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

Burt.

Appellant George Blair contends that in violation of the

public policy that protects marriage, government agents in-

tentionally broke up his marriage with Ruth Ann Burt in order

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

tends that the convictions of all the appellants rest in large

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

Blair first presented this objection to the district court in

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

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

who testified that the government “alienated” his marriage to

Burt. The district court held that:

there was no credible evidence indicating any improper

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

ible evidence, including testimony of defendant's former

wife, Ruth Ann Burt, indicated the government did not

act improperly.

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

finding, which is not clearly erroneous.

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

Both before the district court and on appeal, appellants

argue that the government improperly met with appellant

George Blair.and his then wife Ruth Ann Burt without the

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

lants urge that the meeting in the absence of counsel was

fundamentally unfair. Moreover, since this was a complex

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

20a

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

pellants argue that the meeting violated the right to counsel

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

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

as authority for reversing a conviction when the prosecution

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

contend that the circumstances of the secret meeting with

Blair and Burt “irremediably tainted” her testimony.

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

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

Agent Garibotto communicated with her about testifying be-

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

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

telling him that she would bring Blair. When they met, she

said that she wanted to negotiate immunity for Blair, and Gari-

botto replied that he would have to consult the government

attorney handling the case. The critical meeting was held at

the Ramada Inn. Blair, Burt, Garibotto, and government

attorney Wampler were all present. Burt stated that no one

took notes, and she did not believe that the conversation was

recorded. She did not recall whether anyone gave Blair the

Miranda warnings. In Blair's presence she told the govern-

ment agents a good deal about her knowledge of the narcotics

organization and Blair's activities. When she was asked if

Blair took part in the conversation, she said, “in some areas,

yes.” She stated that he answered some questions. Burt

said that she then asked if Blair could be given immunity in

return for her testimony, but that they were told that Blair

would not be given immunity unless he testified himself.

At the time of the meeting, Blair and virtually all of those

indicted were being represented by one attorney, Milton

Henry. The government did not inform Henry of the meeting,

nor was Blair asked to contact Henry himself.

® Blair did not testify at the trial.

2la

The district court conducted an inquiry into this matter at

a post-trial hearing. Government attorney Wampler testified

that he had believed that it was Blair’s wish that neither his

co-defendants nor their common counsel learn of his efforts to

obtain immunity in return for Burt’s testimony. Moreover,

he stated that Blair said little at the meeting, and that the gov-

ernment “didn’t rely on anything that was said at the meeting

and that’s very true.”

The trial court held that the government “offered no evi-

dence at trial resulting from any statements made by Miss Burt

or defendant Blair at the meeting . . . . [C]learly the testimony

of Miss Burt at trial was in no way the fruit of the Ramada

Inn discussion.” The court recognized the dangers of meeting

with a defendant without his counsel, especially when co-

defendants are represented by the same counsel, but it held

that in this case the contact with Blair was not “improper.”

The meeting was sought by Burt and not by the government,

and it was arranged with Burt, not Blair, who made only

“gratuitous” comments that were not used at trial.

We agree with the district court. We are satisfied with

the district court's careful inquiry to determine whether any

evidence derived from the meeting was used by the govern-

ment, and with its conclusion that no evidence presented at

trial was gained from the meeting. Accordingly, any error

committed by the government was harmless whether measured

by the ordinary or by the constitutional standard.

Of course, as a general matter, an attorney should not com-

municate directly with a party whom he knows to be repre-

sented by an attorney without the consent of the lawyer. See

American Bar Association Code of Professional Responsibility,

Canon 7, D.R. 7-104(a)(1). Here, however, the meeting was

arranged primarily between government agents and Burt, who

was not under indictment. The government did not seek

the meeting. Arrington v. Maxwell, 40° F.2d 849 (6th Cir.

1969). Government attomey Wampler testified that he be-

lieved that Blair particularly wanted to keep his attempts to

22a...

secure immunity from the other defendants and the counsel

who represented them all jointly. Cf. Arrington, supra. How-

ever, the government did not take the precautions that were

possible. It did not encourage or even suggest to Blair that

he should either notify Henry or arrange for the appointment

of independent counsel who could be present. Although we

disapprove of this practice, it bears little resemblance to the

outrageous prosecutorial conduct which required reversal in

cases cited by appellants. E.g., United States v. Rispo, 460 F.

2d 965 (3rd Cir. 1972).

Ill. DID THE DISTRICT COURT ERR IN ADMITTING

CHALLENGED EVIDENCE?

Appellants also seek to overturn their convictions on the

basis of several rulings by the district court admitting chal-

lenged evidence. They contend that the wiretap evidence that

figured so prominently in the prosecution’s case was inad-

missible, first because the government's application was not

properly authorized, and also because the application did not

meet several statutory requirements. Appellants seek the sup-

pression of the evidence seized at the Hubbell Street house,

and from appellants Jones, Hurt, and Woods at the time of

their arrests, on Fourth Amendment grounds. Appellants con-

tend that voice exemplars that they were required to give

were inadmissible on both Fourth and Fifth Amendment

grounds. And finally, they contend that the testimony of

Agent Garibotto identifying the voices on the tapes was inad-

missible because it was the fruit of informal “aural showups”

which violated appellants’ Fourth, Fifth, and Sixth Amend-

ment rights.

A. Wiretap Evidence.

The intercepted communications were critical items of proof

in the government's case, and appellants contend that the dis-

trict court erred in refusing to suppress the evidence seized by

23a

the interception. They challenge the validity of the authoriza-

tion for the government's application for a wiretap order.'®

They also argue that the application did not demonstrate that

normal investigative procedures would have been inadequate,

nor did it afford the district judge probable cause to believe

that the telephone to be tapped was being used or was about

to be used for one of the offenses specified in the wiretap

statute.

1. The Authorization for the Application for the Wiretap

Order.

Appellants argue that the wiretap evidence should have

been suppressed because the government's application for

the interception order lacked the authorization required by

the statute. 18 U.S.C. $2516(1) provides that:

The Attorney General, or any Assistant Attorney General

specially designated by the Attorney Genersl, may autho-

rize an application to a Federal judge of competent juris-

diction for . . . an order authorizing or approving the

interception of wire or oral communications. . . .

In this case, the written application and the application for

un extension stated that Attorney General Mitchell had special-

ly designated Acting Assistant Attorney General Henry Peter-

son to authorize the application to the federal court, and

Peterson's letter was attached.

After their indictment, appellants moved to suppress the

wiretap evidence on the ground that an acting assistant attor-

ney general had no authority to authorize wiretaps pursuant

to $2516. Appellants argue that the applications were in-

sufficient ‘on their face. Section 2518(10)(ii) provides that

the contents of intercepted communications may be suppressed

18 Appellants’ chall applies both to the original application

— to the yectenten or the extension. Our discussion applies to

as wel

24a

on the ground that “the order of authorization or approval

under which it was intercepted is insufficient on its face.”

In United States v. Vigi, 515 F.2d 290 (6th Cir.), cert

denied, 432 U.S. 912 (1975), our court considered this argu-

ment and held that it was unnecessary to determine whether

an acting assistant attorney general who signed the letter

authorizing the application could give effective approval under

§ 2516, because the Attorney General himself had actually

approved the application. Accord, United States v. Swann,

526 F.2d 147 (9th Cir. 1975); United States v. Acon, 513

F.2d 513 (3d Cir. 1975); United States v. Robertson, 504

F.2d 289 (5th Cir. 1974), cert. denied, 421 U.S. 913 (1975).

The same situation is present in this case. The district court

found that Peterson had submitted the papers supporting the

request for authorization to Attorney General Mitchell, and

that Mitchell himself approved the application. The govern-

ment submitted the affidavit of Sol Lindenbaum who stated

that the Attorney General had approved the request for autho-

rization to apply for wiretap orders. Attached to this affida-

vit were copies of a memorandum from Mitchell to Peterson.

In his deposition Lindenbaum identified the handwritten in-

itials on the memos as Mitchell’s. Judge Kennedy, who issued

the wiretap orders, was told that Mitchell had approved the

application. Appellants also contend, however, that Attorney

General Mitchell’s internal memoranda were ineffective be-

cause 28 C.F.R. §0.180 required the designation of formal

orders. Appellants contend that this section is applicable by

its own terms to all documents relating to “the assignment

. . . or delegations of authority, functions, or duties by the

Attorney General.” These documents are to be designated as

formal “orders” to be issued by the Attorney General in a

numbered series. This section is not applicable to delega-

tions of the special authority over applications for inter-

ception orders, or to the Attorney General’s personal approval

of an application for an interception order. Other courts have

found even verbal approval by the Attorney General to be

25a

sufficient. United States v. Falcone, 505 F 2d 478 (3d Cir.

1974), cert. denied, 420 U.S. 955 (1975).

Appellants also contend that the affidavit in support of

the application for the wiretap failed to make the averments

required by 18 U.S.C. § 2518(1)(c). Section 2518(1)(c) re-

quires that an application for an electronic surveillance order

contain a “complete statement as: to whether or not other

investigative procedures have been tried and failed or why

they appear to be unlikely to succeed if tried or to be too

dangerous. ...” We hold that the affidavit of Agent Garibotto

was a satisfactory statement of the investigative steps taken

to date, and that it affords a sufficient reason why normal

investigative procedures “appear to be unlikely to succeed.”"'

1t Agent Garibotto’s affidavit stated in part:

19. Normal investigative ures have not succeeded in

establishing the full extent of the activities of Eddie JACKSON

and BLAIR relating to their ase or sale of con-

nor has Eddie JACKSON’s and Ceorge

lished. Based

us Drugs.

Pages reasonably vg be unlikely to succeed

the identities of JACKSON’s and George

BLAIR’s co-conspirators, aiders and abettors, their places of

Detroit,

tribution of con substances within the Detroit, Michigan

area, and their times, places, schemes, and manners for selling,

distributors do not keep records of their controlled substance

actions. It is the experienced belief of ts of Region

VI that additional surveillances of JA N’s and BLAIR’s

. 26a

However, appellants argue that the averments were false

and misleading because a government informant, Roosevelt

Nabors, had been asked to become a lieutenant in the organ-

ization, but had refused on the advice of government agents.

This opportunity for infiltration, they argue, would have per-

mitted the government to investigate the organization by nor-

mal procedures. The affidavit did not discuss the invitation

for Nabors to become a lieutenant. The district judge re-

jected this argument because, even as a lieutenant, Nabors

would have had difficulty in learning all the complex details

of the widespread organization, and its aiders and abettors.

Moreover, in view of Nabors’ lengthy prior criminal record,

the government would have had great difficulty in establish-

ing criminal liability by his testimony alone.

We agree with the district court’s analysis. The availability

of an informant who was offered and declined an opportunity

to penetrate deeper into a criminal organization under in-

vestigation did not render insufficient Garibotto’s statements

of the need for wiretaps to discover and prove the liability of

the conspirators. See United States v. Pacheco, 489 F.2d

554, 564-565, cert. denied, 421 U.S. 909 (1975).

Appellants’ final contention regarding the wire interception.

is that the affidavit submitted with the application for the .

wiretap order did not meet the requirement of 18 U.S.C.

§ 2518(3)(d) that it afford the district court “probable cause

vertically or horizontally in the JACKSON/BLAIR

because of JACKSON’s and BLAIR’s extreme caution. S-1 does

not personally know anymore facts concerning the JACKSON/

BLAIR operation.

20. For the reasons set out hereinabove, all normal avenues

of investigation are closed, and it is my belief that the only

the necessarv evidence to

reasonable way to develop discover

the other involved in the JACKSON/BLAIR manu-

facture distribution of controlled and

prelbees rer dhy hg yw Be Be os FBO

and BLAIR lected wham ty 19518, Flabbot

on and telephone

been, is being. is about be used by Eddie

27a

for the belief that the facilities from which, or the place

where, the wire or oral communications are to be intercepted

are being used, or are about to be used, in connection with

the commission of [an offense specified] ....” Appellants

contend that the application failed to establish probable cause

to believe that the telephone in the house on Hubbell Street

was being, or was about to be, used to facilitate the distribu-

tion of narcotics.

The affidavit recited that on two separate occasions, on

October 22 and November 4, a government informant, who

consented to having government agents monitor his conver-

sation, called the number registered to the Hubbell Street

address and set up a sale at the Hubbell Street house, and

the purchased substance was tested and found to be heroin.

During the exchange, the agent observed the telephone ring

a number of times. He saw appellants Blair and Brown

answer the calls. Additionally, Garibotto averred that based

upon his experience in narcotics investigations, a telephone

was regularly used to negotiate the time, place, and manner

of “selling, buying, possessing, concealing, delivering, dis-

tributing, or paying for controlled substances.”

On review, we must view the affidavit in a common sense

fashion, and we think that it afforded probable cause to be-

lieve that the telephone at the Hubbell Street address was

being used to make the arrangements for a series of narcotics

transactions. This is sufficient to satisfy the requirement of

$ 2518(3)(d).

2. The Arrests of Appellants Jones, Hurt, and Woods.

We next consider the legality of the arrests of appellants

Jones, Hurt, and Woods as they left Hubbell Street on the

night of December 15. Appellants argue that the govern-

ment lacked probable cause to make these arrests, and that

the evidence seized at the time of the arrests must be sup-

pressed. Earlier in the evening of the night of the arrests,

28a

the agents monitoring the Hubbell Street telephone tap over-

heard conversations indicating that an expected shipment of

narcotics had arrived. Accordingly, a large number of gov-

ernment agents took up surveillance posts near the Hubbell

Street house and arrested appellants as they left the structure.

The government intercepted a call from Joe Weaver to

appellant Jones about 9 p.m. Weaver told Jones that “Court-

ney [Brown] wants to see you.” Garibotto was ioformed of

this call, and he instructed Agent Smelter that Jones was a

close associate of Jackson, and that he should be arrested as

he left Hubbell Street.

Agent Dockery testified that he actually arrested Jones.

There was no evidence that Dockery knew that Garibotto had

identified Jones as a close associate of Jackson’s who should

be arrested. Dockery testified that when he arrested Jones,

he knew that the wire interception indicated that a large

shipment of narcotics was concealed at 19315 Hubbell Street,

that Weaver had called Jones and told him that Courtney

wanted to see him, and that Jones was identified by another

agent when he arrived at Hubbell Street. Dockery testified

that based on their knowledge of the large quantity of nar-

cotics hidden on the premises, he and the other agents had

conferred and determined that anyone seen entering and then

leaving 19315 Hubbell would -be stopped and searched “on

the probable cause that they would be carrying narcotics.”

He observed Jones’ car pull up to the house, and saw its two

passengers enter 19315 Hubbell. They departed about five

minutes later. Dockery followed them for a short distance,

then arrested them. A search revealed that Jones had con-

cealed four cellophane bags containing about one pound of

heroin each inside his shirt at the waistband. The evidence

of the 1,924.5 grams of heroin was the basis for counts 6 and

10, distribution and possession without intent to distribute

heroin.

Agents also intercepted a call from Blair to appellant Hurt

on December 15. Blair stated that the heroin was on hand.

———eeeee

-~_<-——_—— - = . - OC ESO

29a

Hurt wanted a kilogram, and he was told that he would

have to pay cash. Hurt asked the price, and Blair stated

that he would call him back. CGaribotto was informed of

the call, and he stated that Hurt was a substantial customer,

and if he came he should be arrested as he left.

Hurt was arrested by Agent Cigich, who testified that

“supervisory agents” told him to maintain surveillance at Hub-

bell Street, and

should any individual that had arrived at that address

get back into their [sic] vehicles and depart, to appre-

hend and place under arrest the individual.

Hurt arrived and entered 19315 Hubbell. When he departed,

Agent Cigich followed and arrested him some distance away.

Cigich testified that he found a small packet of white powder

“inside the car, lying on the floor next to the driver's front

” The powder was tested and found to be .268 grams of

heroin. Apparently Hurt was the driver and only person

in the car at the time of the arrest. The heroin was offered

into evidence in support of appellants’ convictions on counts

7 and 11, possession and possession with intent to distribute

.268 grams of heroin.

There was testimony that agents observed Woods arrive at

19315 Hubbell at about 9:40, and leave a few minutes later.

He was arrested by Agent Goldenbaum. Goldenbaum testi-

fied that he had been informed by agents monitoring the wire-

taps that a narcotics shipment had arrived at Hubbell Street

and was being rapidly distributed. He was told to get into

a radio car and take up a surveillance position. He learned

that at about 9:30 two persons had been arrested leaving the

premises, and were found to have suspected narcotics in their

possession. At about 9:40, he was informed by radio that a

1969 Chrysler was parked in front of the Hubbell Street house,

and he was told to follow it when it left and to arrest appellant

Woods. A package containing 37.66 grams of cocaine and

137.5 grams of heroin was found in the pocket of his jacket.

30a

Additionally agents seized $4,809 in cash and a pistol. This

evidence was the basis of counts 8 and 9 charging distributing

the heroin and cocaine, and supported the conspiracy charge.

The district court upheld each of these arrests. The court

held that it was reasonable for the arresting officers to assume

that the Jones who was identified arriving at Hubbell Street

was the Jones who had called earlier and whom Garibotto

had ordered arrested. The court held that although no one

actually identified Hurt prior to his arrest, “the officers had

enough facts to determine that the man they arrested was

Leo Hurt, Jr., and probably he was violating federal narcotics

statutes.” Although there was no intercepted telephone call

to Woods, the district court held that the agents had probable

cause because they knew that the Hubbell Street house was

being used as a distribution site for narcotics on the night of

December 15. The court reasoned that it was extremely un-

likely that a person would come to the distribution center on

that night except for the purpose of illegal narcotics trafficking.

Moreover, the agents knew that it was common practice in

the narcotics trade to dispense a shipment quickly. Accord-

ingly, when they saw Woods arrive and depart after only a

few minutes — just as Jones and Hurt had done a few minutes

earlier — they had probable cause to believe that Woods, too,

would have narcotics in his possession when he left.

Neither Garibotto’s knowledge about Jones and Hurt nor

his orders for their arrest can be relied upon to provide prob-

able cause for their arrests, because there was no evidence that

any of his comments had been communicated to the agents on

the scene who actually made or ordered their arrests.

The government contends that the information known to a

superior officer may be imputed to the arresting officer, citing

United States v. Trabucco, 424 F.2d 1311, 1315 (5th Cir.

1970), cert. denied, 399 U.S. 918 (1970), and that the col-

lective knowledge of agents working as a team is to be con-

sidered together in determining probable cause. E.g., United

States v. Caniesco, 470 F.2d 1224, 1230 n. 7 (2d Cir. 1972);

3la

United States v. Stratton, 453 F.2d 36 (8th Cir. 1972), cert.

denied, 405 U.S. 1069 (1972). When a superior officer orders

another officer to make an arrest, it is proper to consider the

superior's knowledge in determining whether there was prob-

able cause. Likewise, when a group of agents in close com-

munication with one another determines that it is proper to

arrest an individual, the knowledge of the group that made

the decision may be considered in determining probable cause,

not just the knowledge of the individual officer who physically

effected the arrest. But here, in contrast, because there was

no evidence that Garibotto’s order to arrest either Jones or

Hurt was the basis of their arrests, his knowledge cannot be

considered in determining probable cause. On the other

hand, we do mutually impute the knowledge of all the agents

working together on the scene and in communication with

each other. Therefore it was proper to consider not only

the facts kuown to Agent Goldenbaum when he arrested

Woods, but also the information known to the officers who

saw Woods visit 19315 Hubbell and ordered Goldenbaum to

follow and arrest him.

When Dockery arrested Jones, he knew that Jones had re-

ceived a call from the Hubbell Street telephone that evening,

that narcotics were believed to be concealed on the premises,

and that the person he saw enter and leave the premises

was known to another agent on the scene as Alphonzo

Jones. Dockery testified that he had conferred with the

other agents on the scene and determined that anyone who

visited 19315 Hubbell Street was likely to be carrying nar-

cotics when he left. The district court’s discussion of Woods’

arrest indicates that it determined that the agents on the

scene knew that 19315 was being used as a narcotics distri-

bution center that evening, and we assume that Dockery

learned as much from his conference with the other agents.

These facts are sufficient to afford probable cause to believe

that Jones had been trafficking in heroin. Of course if the

32a

government had offered evidence that the agents on the scene

were aware of Jones’ close association with Jackson at the

time of the arrest, this additional evidence would have

strengthened the probable cause. Mere presence at a place

where the government believes illegal drugs will be dis-

tributed will not provide probable cause for an arrest on

narcotics charges. See Sibron v. New York, 392 U.S. 40

(1968). But here we think that the agent who made the

arrest did have reason to believe that it was more likely than

not that Jones was in possession of narcotics when he left

19315 Hubbell. 19315 was a story-and-one-half bungalow,

and agents knew that it was used as a headquarters and dis-

tribution site for narcotics. They also knew that a large

shipment of narcotics had arrived. Since Dockery had a

conference with the other agents, and knew of the call to

Jones, we think that it is legitimate to assume that he knew

that the wiretap indicated that the shipment was to be dis-

tributed to callers that evening. In this circumstance, as the

district court reasoned in connection with Woods, it was more

likely than not that a visitor on the night of December 15

was there to pick up narcotics, especially when he had been

called earlier that night from the Hubbell Street address. Ac-

cordingly, the arrest was lawful and the evidence seized from

Jones was properly admitted.

In the case of appellant Hurt, the same reasoning ap-

plies. Agent Cigich testified that he made the arrest

because of a general order by his supervisors to arrest

anyone leaving 19315 Hubbell that evening. Although

the government did not prove that the call from Blair

to Hurt negotiating the sale of a kilogram had been com-

municated to Cigich or to the other agents on the scene, we

assume that the supervisory agents who gave these orders

knew of the anticipated distribution from the Hubbell Street

house that evening. As in the case of appellant Jones, there

was probable cause to arrest Hurt immediately after his brief

visit to the house. The totality of the circumstances suggested

33a

no reason for his presence other than to engage in narcotics

traffic.

In the case of appellant Woods, moreover, the agents had

more than simply the expectation that 19315 Hubbell was to

serve as a distribution site that evening. They also knew

that two other persons who had arrived shortly before Woods

had been arrested and were found to have suspected narcotics

in their possession. Additionally, as the district court noted,

the agents knew that once a narcotics shipment arrives, it is

distributed very quickly. In these circumstances, we agree

with the district court that the facts known to the officers who

ordered the arrest of Woods, and of which they had reasonably

trustworthy information, “ ‘were sufficient to warrant a prudent

man in the belief that [Woods] had committed or was com-

mitting an offense.” Adams v. Williams, 407 U.S. 143, 148

(1972), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964).

Accordingly, we hold that the evidence seized at the arrests

of appellants Hurt, Jones, and Woods was legally seized, and

was admissible to prove their guilt. Since we find that there

was probable cause for the arrest of Cara Woods, the evidence

seized at the time of the arrest was admissible, and we have

no occasion to consider whether the statements he later made

were independent of his arrest.

B. The Evidence Seized from the Hubbell Street Premises.

A large quantity of narcotics was seized from the house

on Hubbell Street on December 15, shortly after the arrests

of appellants Jackson, Brown, Blair, and Joseph and Reginald

Weaver. Appellants contend that these arrests were purpose-

ly delayed until appellants were inside the Hubbell Street

house, and that they were used as a pretext for making a

search of the premises without a warrant.

The arrests were made at approximately 10 p.m. on Decem-

ber 15. According to the testimony at the suppression hear-

ing, about 6 p.m. that evening, government agents who were

34a

monitoring the Hubbell Street wiretaps informed Agent Gari-

the others found in the Hubbell Street house. At approxi-

mately 10 p.m. at the home of the district judge, when he

was notified that the arrests had been made, and that sus-

pected narcotics had heen found in plain view, he added this

information to the affidavit. The district judge issued a search

warrant for the house on Hubbell Street, and a full search

arrests to be made at the Hubbell Street house as a subterfuge

to permit a search of the premises without a warrant. Gari-

botto denied that he delayed the arrests for that reason. Both

appellants and the government rely upon Garibotto’s statement

of his purpose for ordering the arrests at that time. He testi-

fied:

Well, the circumstances at the Hubbell address mandated

that the arrest be made at that time. Our forces were

diffused at the time. We knew there were a great num-

ber of customers heading to the Hubbell address to pur-

‘

been arrested prior to his entering the house on Hubbell.

Additionally, the court held that even assuming that the agents

had improperly delayed the arrests to gain entry into the

house without a warrant, the search that was later conducted

pursuant to a warrant was not tainted.- The court reasoned

that the district judge, who received lengthy affidavits pre-

pared before the arrests (to which only one handwritten para-

graph had been added after the arrests), had before her suffi-

cient unchallenged facts to afford probable cause for a search.

The improper addition could therefore be ignored.

Our court has repeatedly made it clear that:

An arrest may not be used as a pretext or subterfuge

for making a search of premises without a search warrant

where ordinarily one would be required under the Fourth

Amendment. If, in fact, the primary purpose of forcibly

entering a person's home is to search for evidence with

which to convict him of crime, the evidence so obtained

is not admissible in court.

United States v. Harris, 321 F.2d 739, 741 (6th Cir. 1963),

quoted in United States v. Carriger, No. 74-1901 (6th Cir.

1976, decided and filed, August 25, 1976) [Footnote omitted].

As Chief Judge Cecil stated in Harris,

The real purpose of the agents must be determined

from all of the facts and circumstances surrounding the

36a

arrest of the defendant and the search of his apartment.

The court is not bound to accept the purpose as stated

by the agents as controlling.

321 F.2d 741.

Appellants argue that probable cause to arrest Jackson,

Brown, and Blair existed after the October 22 and November

4 sales to the undercover agent. Moreover, they emphasize

that Jackson was under government surveillance before he

arrived at Hubbell Street, but he was not arrested until after

he was on the premises. They argue that Garibotto’s state-

ment quoted above admits that his purpose in ordering the

arrests was to permit the warrantless search and seizure of

narcotics.

Although the district court did not focus on the issue as

stated in Harris, its determination that the defendants did not

prove that Jackson could have been arrested sooner implies

that ‘the government did not make the arrests as a pretext for

a warrantless search. The arrests were ordered as soon as the

buyers who had called earlier left the premises, were arrested,

and were found to be in possession of narcotics. Taken with

the reports of the outgoing calls from Hubbell setting up addi-

tional sales, this firmly established that the narcotics shipment

had arrived, and that the occupants of the house were dis-

tributing it rapidly. This knowledge afforded probable cause

to arrest all the occupants of the house, not just Jackson.

Moreover, we think that Garibotto’s testimony indicates that

there was real concern for preventing the unlawful distribution

of a large shipment of narcotics to other purchasers, as well

as a desire to effect the arrests while there was sufficient man-

power available. The record does not indicate that the gov-

ernment was trying to avoid getting a warrant to search Hub-

beil Street. In fact, when Garibotto ordered the arrests he

was on his way to the home of a district judge with detailed

affidavits, and he added only a brief handwritten statement

after he learned of the arrests. The district judge actually

37a

issued a warrant within minutes of the entry and arrests. No

search of the premises was made until the warrant was issued.

The facts and circumstances surrounding the arrests thus

demonstrate that the government did not manipulate the ar-

rests in order to avoid the Fourth Amendment warrant re-

quirement, and we hold that the evidence seized from Hubbell

Street was properly admitted.

C. Formal Voice Exemplars.

Appellants contend that the district court's order requiring

them to give formal voice exemplars violated their privilege

against self-incrimination and constituted an illegal search

and seizure. Accordingly, they argue that neither the ex-

emplars nor identification testimony based upon the exemplars

was admissible. In United States v. Franks, 511 F.2d 25, 33

(6th Cir.), cert. denied, 422 U.S. 1042 (1975) we rejected

these arguments, holding:

Mitchell and Britton claim that the court order com-

pelling them to give voice exemplars violated their con-

stitutional right against unreasonable searches and seizures

and their constitutional privilege against self-incrimina-

tion. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764,

35 L.Ed.2d 67 (1973), established that compelling voice-

prints even of the same words used in the crime does not

violate the constitutional privilege against self-incrimina-

tion. Accord, United States v. Rogers, 475 F.2d 821,

825-826 (7th Cir. 1973). Moreover, compelling a voice-

print is neither a “search” nor a “seizure.” Dionisio, 410

U.S. at 14-15, 93 S.Ct. 764. We reject Mitchell's attempt

to limit Dionisio to the grand jury context in that, so long

as the underlying seizure of the person is proper, requir-

ing that person to submit voice exemplars violates no con-

stitutional right. See United States v. Rogers, 475 F.2d

821 (7th Cir. 1973) (court-ordered submission); United

States v. Sanders, 477 F.2d 112 (5th Cir.), cert. denied,

414 US. 870, 94 S.Ct. 88, 38 L.Ed.2d 88 (1973) (legally

in custody on another matter).

38a

D. Informal “Aural Show Ups.”

Appellants also contend that their Fourth Amendment rights

and their privilege against self-incrimination were violated,

and their Sixth Amendment right to counsel denied, at a series

of informal “aural show ups.” mace ae a

ment agents created opportunities to speak to each of the ap-

pellants both in person after their arrests, and later over the

telephone by setting up a lengthy procedure for the return

of their seized property. Agents testified that they did not

give the warnings detailed in Miranda v. Arizona, 386 U.S.

436 (1966) when they spoke to appellants on these occa-

sions,'* and appellants did not have their counsel present.

As we stated in connection with the formal voice exemplars,

supra, neither the Fourth Amendment nor the privilege against

self-incrimination is violated by the disclosure, even if com-

pelled, of a person’s voice. Appellants’ complaint is not that

their statements were used to incriminate them in a testi-

monial sense, but that the agents were able to recognize their

voices on the tapes after having heard them in person and

over the telephone.

Appellants also claim, however, that because the “aural

show ups” formed the basis for the critical testimony identify-

ing their voices on the tapes, they were critical stages at

which the Sixth Amendment guaranteed appellants’ right to

counsel. A review of the testimony indicates that Agent Gari-

botto did speak to several of appellants briefly after their

arrests, and later over the telephone. These conversations ap-

pear to have been brief and matter of fact, concerning such

routine matters as the return of property which had been

seized. There is no requirement that counsel be present for

conversations about such routine matters when no effort at

interrogation is made.

12 Appellants do not contend that they were not given their Miranda

warnings before formal custodial interrogations.

39a

IV. WAS THERE SUFFICIENT PROOF OF APPEL-

LANTS’ GUILT ON EACH OF THE COUNTS?

Next we consider the sufficiency of the proofs supporting

appellants’ convictions on the various counts of the indictment.

First, appellants assert that the Pinkerton rule should not be

applied to convict defendants, found to be conspirators, of

each of the substantive counts without proof that each defen-

dant actually took part in the individual transactions. Second,

several appellants challenge the sufficiency of the evidence

linking them to the conspiracy. Last, we will consider chal-

lenges to the proofs on counts 3, 4, 8 and 9.

A. The Pinkerton Rule.

Appellants vigorously attack the validity of the rule an-

nounced in Pinkerton v. United States, 328 U.S. 640 (1946)

that even if he did no more than join a conspiracy, a conspira-

tor can be convicted of any substantive offense committed in

furtherance of the conspiracy and as a part of it. Appellants

contend that the Pinkerton rule is bad law, and that this court

should not follow it. Our court, however, is constitutionally

required to follow the Supreme Court's decision in Pinkerton

and the cases following it, which have never been overruled,

or even questioned by the Supreme Court.

B. The Sufficiency of the Evidence of Conspiracy.

Appellants Kilpatrick, Riggs, Rudolph, Cavanaugh, Horne,

Hurt, and Garrett challenge the sufficiency of the evidence sup-

porting their convictions. Since each of them was found

guilty of conspiracy, count 1, under the Pinkerton rule, they

could also be convicted of counts 3 and 4 and counts 6

through 16, which charged crimes that were part of and in

furtherance of the conspiracy. Appellants contend, however,

that there was insufficient evidence to support their convic-

tions on the conspiracy charge.

40a

In reviewing the sufficiency of the proof of appellants’ guilt,

we will be guided by the following general principles. The

evidence will be viewed in the light most favorable to the

government. Glasser v. United States, 315 U.S. 60 (1942).

Moreover, there are special evidentiary rules applicable to

conspiracy cases. As we stated in United States v. Mayes,

512 F.2d 637, 651 (6th Cir.), cert. denied, 422 U.S. 1008

(1975):

ae. =» en eee

beyond a reasonable doubt; indeed, it is less than a pre-

ponderance. . . . Moreover, the prima facie case need not

be established before the proffered hearsay may be ad-

mitted; the judge may admit it conditionally. mt is suff

cient if at the close of the government's proofs, a. prima

Willie Lee Kilpatrick

Appellant Kilpatrick was convicted of conspiracy, count 1,

by Judge Pratt, and under the Pinkerton rule he was also

convicted on counts 3, 4, and 6 through 16. We hold that the

evidence was adequate to support his conviction on the con-

spiracy count, and we have already discussed the Pinkerton

rule supra. The following evidence supported the district

court’s conclusion that Kilpatrick “was involved in narcotic

trafficking, was clearly associated with defendant Jackson and

connected with the other conspirators . . . [and] was in the

‘lieutenant’ echelon of the Jackson organization... .” Kil-

ll eel at le i

eee i Ml Nematic -

— -

4la

patrick flew to New York with appellant Riggs (Jackson's

girlfriend), who was arrested carrying a quantity of narcotics

when she attempted to return to Detroit. Informant Nabors

testified that he observed Kilpatrick at 19315 Hubbell Street

at the time scheduled for a meeting of the Jackson organiza-

tion lieutenants. When Nabors refused the organization's in-

vitation to become a lieutenant, he was not allowed to stay.

A search of Kilpatrick’s apartment produced substances used

to dilute heroin, narcotics paraphernalia, and firearms. Kil-

patrick’s address book listed the names of other conspirators,

and he was likewise found listed in their books.

wholesale distribution. The district court took special note of

a call that Hurt made by Blair in which Hurt stated that his

piteit

fui

tel

Holt

sete

pitt

iqfeths

te Ble

the

by the driver's seat. This evidence is sufficient to support

conclusion that Hurt, like Cavanaugh and Rudolph, was

major distributor for and a member of the conspiracy. Ac-

cordingly, we affirm Hurt’s conviction on count 1. Under the

zB.

42a

that there was insufficient evidence to convict him on count

7, although we conclude that even without the Pinkerton rule,

there was sufficient evidence to sustain his conviction on this

charge.

Hurt also contends, relying upon Kotteakos v. United States,

328 U.S. 750 (1946), that the evidence shows only a “hub and

spoke” cluster of several conspiracies, each between an in-

dividual dealer and the “hub” consisting of Jackson and his

lieutenants. In Kotteakos, however, defendant Brown special-

ized in obtaining loans from the Federal Housing Administra-

tion by false and fraudulent applications. Several defendants,

each of whom had obtained such a loan falsely and fraudu-

lently, were charged with and convicted of a single all-encom-

passing conspiracy. The Supreme Court held that there was

proof, not of a single, but of several conspiracies, and reversed

the convictions.

Hurt, however, was a distributor with an ongoing relation-

ship with the conspiracy to distribute illegal narcotics. He

depended for his success upon the continuing vitality of the

entire conspiracy. This is particularly true in the narcotics

business, because new customers of each seller may become,

by reason of addiction, a lifetime potential market for all other

sellers. :

Fairh Lee Riggs

Judge Feikens convicted appellant Riggs of conspiracy, count

1, concluding that she knowingly and intentionally joined the

conspiracy, and that she was “an important courier in the

transportation of narcotics” as well as “an intimate associate

of Jackson.” We hold that the evidence was sufficient to con-

vict Riggs of conspiracy. Riggs had travelled to New York

with appellant Kilpatrick and defendant Reynolds in Septem-

ber 1971. All three used assumed names. When airlines

personnel examined appellant Riggs’ carry-on luggage, they

observed an estimated $30,000 in cash in a paper bag. Riggs

|e lt lhe tl Ae A ae

43a

was arrested later that day when she returned to the New

York airport for a return flight to Detroit. Her luggage con-

tained 1,917 grams of heroin and almost $5,000 in cash. She

was convicted of possession of the heroin in the Eastern Dis-

trict of New York, and the conviction was affirmed. United

States v. Riggs, 474 F.2d 699 (2d Cir.), cert. denied, 414 U.S.

820 (1973). By stipulation, the record in the New York case

was incorporated into these proceedings. Riggs was Jackson's

girlfriend. He arranged to take calls from another

at her house. Riggs’ name and telephone number, along with

those of several other appellants, were found in appellant Ru-

dolph’s address book. This evidence was adequate to estab-

lish a prima facie case that appellant Riggs knowingly joined

the conspiracy. Accordingly, other evidence of hearsay state-

ments by other ‘conspirators was admissible to strengthen the

case against Riggs. Burt’s testimony indicated that the Jack-

son organization procured several large shipments of narcotics

from a source in New York. Additionally Jackson told Burt

that he believed the Riggs arrest must have been a “set-up”

because the two men with her were not arrested. Jackson

tried to raise a large sum because his “old lady” was in jail in

New York, and Blair told Burt that Jackson was trying to find

a lawyer for Riggs. This evidence amply supports the con-

viction of Riggs on count 1.

Samuel (Eugene) Horne

Judge Feikens concluded. that it was “clear beyond a rea-

sonable doubt that defendant Samuel Horne knowingly and

intentionally joined the conspiracy.” He concluded that

Horne’s “principal activity” for the organization was “whole-

sale distribution of narcotics.” The government intercepted

telephone conferences between Horne and Joseph Weaver,

Brown, Blair, and Jackson. In particular, Judge Feikens noted

that on December 9 Horne called Jackson and attempted to

arrange a sale to a customer who wanted a “full thing” for

44a

$15,000. This evidence was more than ample to support

Horne’s conviction of conspiracy.

Charles Cavanaugh

Judge Feikens convicted Cavanaugh of count 1, conspiracy,

holding that he was one of the organization’s “wholesale dis-

tributors,” and that he “engaged in other kinds of supply

activity for the group.” Burt testified that she and Blair

delivered cocaine to Cavanaugh in exchange for three outfits

of clothing. The wiretap intercepted a number of calls from

Cavanaugh to the Hubbell Street telephone inquiring about

the availability of narcotics. Cavanaugh indicated his famil-

iarity with various key members of the organization by calling

and asking to speak to “George [Blair], Brown, or the big

man [Jackson].” In these calls Cavanaugh made arrangements

for sales, complained about the quality of the narcotics that

he had received, saying at one point that he had had to return

his customers’ money. On December 14 Jackson agreed to sell

Cavanaugh 13 quarters of heroin.

This evidence was more than sufficient to prove Cavanaugh’s

part in the conspiracy. See, e.g., United States v. Tramunti,

513 F.2d 1087, 1112 (2d Cir.); cert. denied, 423 US. 832

(1975); United States v. Varelli, 407 F.2d 735, 748 (7th Cir.

1969), cert. denied, sub nom. Saletko v. United States, 405

U.S. 1040 (1972); United States v. Aviles, 274 F.2d 179, 188

(2d Cir. 1960).

Charles Rudolph

Judge Feikens also convicted appellant Rudolph on the con-

spiracy count. He held that Rudolph was “deeply involved in

wholesale distribution of drugs for the group.” Judge Feikens

cited as evidence Rudolph’s telephone calls, his account rec-

ords, and his automatic telephone dialing cards for other con-

spirators, as well as the fact that Rudolph was listed in the

telephone and address books of other conspirators. In one

ee mee we ee eee =

Se a oa

45a

telephone call, Rudolph told Brown he was “getting low,”

and he would take a quantity of narcotics being held for

another buyer if that transaction did not go through. Brown

called Rudolph a few days before the last big delivery to tell

him that the narcotics would be around in a few days, and

Rudolph said that he would wait. An outgoing call to Ru-

dolph’s telephone was made from Hubbell Street on December

15 when the expected shipment was being distributed, but

_ there was no answer. A search of appellant’s home yielded

417 grams of heroin, common diluents, guns, ammunition, and

a record book including the names of other conspirators and

sums of money. This evidence established a prima facie

showing of his status as a conspirator, and made admissible

Burt's testimony that Blair told her Rudolph had once been a

Jackson lieutenant, but that he “broke away” and now spe-

cialized in selling “quarters” of heroin and cocaine. It is

imm: terial that Rudolph no longer served the Jackson organ-

ization as a licutenant, since he still acted as a major distribu-

tor for the organization. The evidence adequately supports

his conviction.

Ronald Garrett

Judge Feikens found appellant Garrett guilty of conspiracy

on the basis of the following evidence: Garrett's telephone

number was listed in Kilpatrick's address book and in Ru-

dolph’s telephone and address book, and he had a substan-

tial account listed in Rudolph’s account book. Additionally,

Garrett figured prominently in a number of intercepted tele-

phone conversations. Since Garrett was not one of the speak-

ers in these conversations, they are admissible to prove the

truth of the matters asserted only if a prima facie case is made

that Garrett was one of the conspirators. However, Judge

Feikens properly relied upon the fact that several of the con-

spirators mentioned Garrett repeatedly in the course of dis-

cussions regarding their narcotics transactions. Evidence that |

46a

his name was mentioned repeatedly in the context of the nar-

cotics transactions was not hearsay, and was competent evi-

dence tending to show that he was a conspirator. It should

be unnecessary to emphasize that proof of an illegal conspiracy

is seldom direct. More often, there is only indirect proof of

the unlawful agreement. We are required by Glasser to view

the evidence in the light most favorable to the government.

Accordingly, we hold that a prima facie case of conspiracy,

although a minimal one, is established by the evidence of the

telephone calls, considered together with the address books

and Rudolph’s account book, which indicated a substantial sum

of money for Garrett, as well as for other persons shown to

be conspirators. Accordingly, the substance of the telephone

conversations, in which other conspirators’ statements indicated

Garrett’s deep involvement, was admissible. In addition,

Burt’s hearsay testimony that she helped Blair make a de-

livery which he said was for “Five-O” was admissible to prove

Garrett's complicity. Burt identified Garrett as “Five-O” at

trial. This evidence was adequate to support Garrett's convic-

tion on count 1.

C. Counts 3 and 4

Appellants Brown, Bell, Riggs, Horne, Garrett, Jones, and

Rudolph challenge the sufficiency of the evidence to support

their convictions of count 3, the October 22 sale to Special

Agent Smith, and of count 4, the November 4 sale. Since we

have affirmed their convictions of conspiracy under count 1,

appellants were properly convicted of the substantive charges

in these counts as well under the Pinkerton rule.

D. Counts 8 and 9

Appellants challenge the validity of convicting them on

count 8 (distribution of 137.35 grams of heroin) and count 9

(distribution of 37.66 grams of cocaine) in view of the fact

that the district court acquitted Cara Wc ds, in whose posses-

47a

heroin

charge. Appellants contend that since Woods was not a mem-

of the conspiracy, his statement to Agent Garibotto re-

garding the source of the narcotics was hearsay and therefore

not admissible to prove the guilt of the conspirators. Accord-

ingly, they argue that there was no proof that Woods had

obtained the narcotics from 19315 Hubbell. We disagree.

There was compelling circumstantial evidence that the heroin

and cocaine referred to in counts 8 and 9 were procured from

the Jackson organization at 19315 Hubbell. Woods visited

the Hubbell Street address briefly on the night of the 15th of

December when a large shipment of narcotics was being

rapidly distributed, and when he was arrested just as he left

he was found in possession of the narcotics. Minutes before

two other persons had entered briefly, and when they left they

too had been arrested and were found to be in possession of

narcotics. We thing that this is ample evidence to support a

finding that the narcotics seized from Cara Woods were dis-

tributed by the Jackson organization, and that therefore all

of the conspirators could be convicted of counts 8 and 9 under

the Pinkerton rule.

sion the and cocaine were found, of the conspiracy

ber

V. WERE BLAIR AND HURT DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL?

Appellant Blair argues that although the two defense at-

torneys who represented all defendants at the trial were very

well qualified, he did not receive effective assistance of counsel

because of the inherent conflict of interest between their

representation of Jackson, the “kingpin” or “boss,” and that of

minor defendants such as Blair. He argues that he did not

even have a fee-paying relationship with the defense attorneys,

who were primarily concerned with Jackson. He also contends

that conflict arose between himself and the other defendants

when proof was introduced about his secret efforts to secure

immunity in return for the testimony of Ruth Ann Burt.

48a

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We have determined that the contention, which we have

en See at mete Geant, WS dee eae

rare for a lengthy trial not to produce some

We have examined this record

ee ee

spite

with that possibility in mind and have concluded that in

of minor errors, this was a fair trial for all appellants.

For the foregoing reasons, the judgments of conviction are

AFFIRMED.

52a

ORDER DENYING PETITION

FOR REHEARING

NOS. 74-2338 thru 74-2353

UNITED STATES COURT OF APPEALS

POR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee ORDER

> @ o

WILLIE LEE KILPATRICK, et al.,

Defendants-Appellants

BEFORE: CELEBREZZE and MC CREE, Circuit

Judges.

The petition for rehearing «i‘u

suggestion for en banc consideration 1v-

ing come on to be heard, and llee's

response to the petition for ing hav-

ing been received and considered, and no

me having requested a vote on the sug-

gestion for rehearing en banc, and the

motion having therefore been referred to

the panel that heard the case, upon con-

sideration, it is ORDERED that the petition

be, and it hereby is, DENIED.

Entered by order of the court

/8/ John P. Hehman

{Filed February 2, 1977)

53a

EXCERPT OF

MEMORANDUM OPINION AND ORDER

DENYING MOTION TO SUPPRESS

WIRETAP EVIDENCE

UNITED STATES DISTRICT COUPT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA,

Plaintiff, CRIMINAL ACTION

vs. NO. 46597

EDDIE JACKSON, et al.,

Defendants.

UNITED STATES OF

AMERICA,

Plaintiff, CRIMINAL ACTION

vs. NO. 46598

WILLIE LEE

KILPATRICK, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendants in the above captioned

cases have moved to suppress all evidence

S4a

obtained from Wire Inte tion Orders No.

ll-11-71-CK and No. 12-1-7 ~CK. pa

Defendants also contend that the

wire tap orders are defective because they

do not contain a finding that:

Normal investigative procedures have

been tried and failed...

However, the applications, affidavits in

support thereof, and the orders themselves

contain an equally acceptable finding

that:

[N)ormal investigative procedures

reasonably appear to be unlikely

to succeed.

Such a finding satisfies the requirements

for a wire tap order. 18 U.S.C. § 2518(3)

(c). Likewise, the factual recitation in

the affidavits in support of the applic-

ations fully support such a finding in ful-

fillment of 18 U.&.C. § 2518(1) (c).

For the reasons given the defen-

dants' motion to suppress the evidence

procured by wire tap orders in the above-

captioned case is hereby ORDERED DENIED.

/a/ John Feikens

~JOUN PETRENS

United States District Judge

Dated: June 16, 1972

55a

EXCERPT OF

MEMORANDUM OPINION DENYING DEFENDANTS'

MOTION FOR REHEARING RE: SUPPRESSION

OF WIRETAP EVIDENCE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA,

Piaineife, CRIMINAL NO. 46597

vs.

EDDIE JACKSON, et al.,

Defendants.

UNITED STATES OF

AMERICA,

Plaintiff, CRIMINAL NO. 46598

vs.

WILL LEE

KILPATRICK, et al.,

Defendants.

MEMORANDUM OPINION DENYING DEFENDANTS'

MOTION FOR REHEARING RE: SUPPRESSION

OF WIRETAP EVIDENCE

Defendants have moved for a rehearing

56a

on their Motion to Suppress Wiretap Evid-

ence. This Motion is denied; but the Court

does, however, wish to amplify its reason-

ing expressed on some of the issues in the

earlier opinion on this subject issued

June 16, 1972.

. * *

Defendants next contend that the

applications presented to Judge Kennedy on

November ll, and December 1, 1971 were

fatally defective because they did not al-

lege that “normal investigative procedures

have been tried and .. . reasonably ap-

pear unlikely to succeed." The relevant

statutory section here is § 2518(3)(c),

which reads as follows:

"(c) normal investigative pro-

cedures have been tried and have

failed or reasonably appear to be

unlikely to succeed if tried or to

be too dangerous."

Althougn Congress might have more artfully

drafted the subsection, the two words "if

tried" at the end of the phrase “or reason-

ably appear to be unlikely to succeed if

tried" clearly indicate that wach of the

three phrases in the subsection are to be

construed alternatively. Thus, there are

three permisible findings: (1) normal

investigative procedures have been tried

and have failed; (2) normal investiga-

tive procedures reasonably appear to be

unlikely to succeed if tried; or (3) nor-

mal investigative procedures [appear] to

be too dangerous. Judge Kennedy here found

the second. The orders and applications

are sufficient on their face and, there-

fore, withstand the exclusionary rule of

§ 2518(10) (a) (ii).

* : ”

57a

The other arguments presented by

defendants were adequately discussed in

the June 16, 1972 opinion and are with-

out merit. Finally, since no allegations

of facts contrary to those in the two or-

iginal applications and supporting affid-

avits sworn to before Judge Kennedy have

been made by defendants, no evidentiary

hearing on the validity of the allegations

made therein is appropriate.

Defendants’ Motion for Rehearing on

the Motion to Suppress Wiretap Evidence is,

therefore, DENIED.

IT IS SO ORDERED.

/s/ Philip Pratt

United States District Judge

/s/ John Feikens

~ JOHN FEIKENS

United States District Judge

Dated June 5, 1973.

58a

EXCERPT OF

MEMORANDUM OPINION AND ORDER

CONCERNING TRIAL ISSUES

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA,

Plaintiff, CRIMINAL NO. 46597

vs.

EDDIE JACKSON, et al.,

Defendants.

UNITED STATES OF

AMERICA,

Plaintiff, CRIMINAL NO. 46598

vs.

WILLIE LEE

KILPATRICK, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

These cases are currently before

the Court for decision after a bench trial.

59a

In this memorandum the legal issues which

arose during and after trial will be dis-

cussed. Before proceeding to a discussion

of those issues, however, a brief factual

summary of these cases and the trial should

be helpful.

I. Wire Interceptions

Throughout these proceedings defen-

dants have challenged the lawfulness of

wire interceptions made under the provis-

ions of Title III of the Omnibus Crime Con-

trol and Safe Streets Act of 1968 (18 U.S.

C. § 2511 et seq.). Defendants now raise

three additional arguments in seeking to

suppress all evidence derived from these

interceptions.

7 7 *

Defendants further contend that the

evidence produced at trial clearly indic-

ated that electronic surveillance was not

necessary in this case and that normal in-

vestigative procedures would have been

satisfactory. This argument is founded

upon 18 U.S.C. § 2518(3) which requires a

showing that normal investigative procedures

are inadequate before wire interception

methods may be utilized.

At trial one of the defendants in

Number 46598, Roosevelt Nabors, testified

for the government. Defendants assert

that Nabors could have infiltrated the

organization allegedly formed by defen-

dant Jackson and that a wiretap on Jackson's

telephone at 19315 Hubbell Street was un-

necessary.

60a

In the previous opinions. we fully

discussed this issue and heid that there

had been a sufficient showing in each ap-

plication and supporting affidavit sub-

mitted to Judge Kennedy to support her

finding that normal investigative proced-

ures would reasonably appear to be unlikely

to succeed. Absent a showing that the

averments relied upon by Judge Kennedy in

making this determination were knowingly

- false or made in bad faith, her finding ‘is

necessarily conclusive.

Defendants contend, however, that

Nabors had an opportunity to become a lieu-

tenant in “the Jackson organization."

While this may well be true, it does not

substantially detract from the averments

of Special Agent Ronald S. Garibotto in

his affidavits submitted to Judge Kennedy

in support of the two wiretap applications.

Narcotics distribution operations are ex-

tremely complex. Thus it would be unlikely

that Nabors could learn the extent of the

alleged conspiracy even if he could have,

in fact, infiltrated the organization.

Additionally, with his lengthy prior.crim-

inal record, Nabor's reliability, both |

during the investigation and as a witness

at trial, was marginal at best.

In United States v. Pacheco, 489

F.2d 554 (1574), the Fifth Circuit, in a

case similar to the case at bar, held that

the availability of an informant is not

sufficient to eliminate the need for a

wiretap when the investigation involves a

complex illicit operation.

"In no realistic sense could it be

said that Mrs. Matthews had infor-

mation that would eliminate, or, in

6la

some instances, even lessen,

the need for the Fox tap. With-

out the Fox tap, there would have

been at least seven defendants

who would not have appeared in the

case at all, and the sole evidence

as to several others would have

been the uncorroborated testimony

for an accomplice previously con-

victed of purjury[sic]. Finally, we

note that the purpose of the req-

uirement in section 2518(1)(c) is

not to foreclose electronic surv-

eillance until every other imagin-

able method of investigation has

been unsuccessfully attempted, but

simply to inform the judge of the

difficulties involved in the use

of conventional techniques."

489 F.2d at 565.