# Petition — JACKSON v. UNITED STATES (Nos. 76-1360, 76-1314) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1496%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 ## Text \ Supreme Court, U. S MriLeD } | APR 4 )9TT 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 a. eo i j ice nae ie BO Lica are > j ¢ e 7) ‘ a4 s @’ 5r- 4 \q ¢ i) : ° ; . 4 79 - > ? ® . . ey ’ 4 - ‘ . y ‘ ; 3 ; , } . : . : INDEX OPINIONS BELOW. . « «+ «© «© © © @ » JURISDICTION . . . . . . . . . . . QUESTIONS PRESENTED ...++-s-s STATUTES INVOLVED ....++ + «© «© « STATEMENT OF THE CASE ...+ +s «+ A. B. 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 19 20 ii 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 25 24 40 39 ) = 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 34 29 iv 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 r. 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. 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 29 30 29 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 >t a ° é a : 4 e 4 pie ee * ri pres é , a. s e *. bd a? ‘a + t | eee : 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 * (c) a full and complete state- 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 (c) normal investigative pro- 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 10 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. ll 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. 12 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 13 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. 14 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). 15 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. 16 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 17 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- 18 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] 19 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 20 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 21 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). 22 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 I. 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: 23 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. 24 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 25 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 26 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 27 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). 28 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 7/ through the use of Nabors.— But the 7/ And perhaps not. The facts withheld from Judge Kennedy indicated that Nabors [cont'd next page] 29 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 r. testify). 30 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 31 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). 32 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 33 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). 34 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). 35 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 36 "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 37 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) 38 (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 39 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. 40 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] 41 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. 42 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. wa 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 3a 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 4a I. WERE DEFENDANTS PROPERLY INDICTED? the 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 Hi He Pi 5a 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. 6a On the day scheduled for the preliminary hearing, appel- lants were indicted by the grand jury, which heard the testi- mony of Special Agent Garibotto and evidence from the wire interceptions. The return of the indictments made it unneces- sary to conduct the preliminary hearing. Appellants contend that this procedure violated 18 U.S.C. § 2518(9) and (10)(a) and 18 U.S.C. § 3504 Section 2518 (9) provides that: The contents of any intercepted wire or oral com- munication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the : : E | PERSE : e 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. 7a 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, : i 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 at 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 1 | ! : | 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 8 i zB. ¢ i : a] 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 ev [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1496%3A1. Public record. Not legal advice.