Petition — Mims v. United States

Supreme Court brief1977

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

— %6-1557

SPENCER MIMS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH JUDICIAL CIRCUIT

MILTON R. HENRY

2211 E. Jefferson Ave.

Detroit, Michigan 48207

Phone: 313-393-0100

Bar No. P-14884

Attorney for Petitioner

Warmegon OC @ CLO PUBLISHERS « LAW PRINTING CO « (202) 19306275

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS INVOLVED ............ 4

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TABLE OF AUTHORITIES

Cases

United States v. Addison, 498 F.2d 741 (D.C. Cir.,

Ditch be biceiehcbededetecasnekenheneeesanen cet 17

United States v. Arroyave, 477 F.2d 157, cca 5, 1979......... 1]

United States v. Ash, 413 U.S. 300, 32 L.Ed.2d 619, 93

ID i oi baie oe de eee ceveboebees 8

United States v. Baller, 519 F.2d 463, cca 4, 1975 ........... 3.17

United States v. Dionisio, 410 U.S. 1, 35 L.Ed.2d 67, 93

SM WE ba hbtdcbhacdecebeccacrdoccecsecddivessecosecs 8.9

United States v. Epperson, 485 F.2d 514, cca 9, 1973........ 11

United States v. Frank, 511 F.2d 25, cca 6, 1975 ............ 3.17

United States v. Martin, 483 F.2d 1974, cca 5, 1973........... 1]

United States v. Stifel, 433 F.2d 431, cert. den. 401

Te eee oe kn a hr ee 17

United States v. Suarez & Chiong, 487 F.2d 236, cca 5,

DSi bccht teeth ein ehicddeedéh4deeieeekhecees o6¥ee 10

United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149,

EE pei di ded cc duendeusds kabodeesdeoes 8.9

United States v. Whitman, 469 F.2d 1370, cca 9, 1972 ........ 11

(ii)

Page

Brewer v. Williams, —— U.S. ——, 51 L.Ed.2d 424........... 9

Brown v. Mississippi, 297 U.S. 278, 80 L.Ed. 682, 56

i Gs WE hn 56. bn 0 0045.4040460wssebbeeesseeteGeetrcoceces 11

Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178,

Ge We Mk EE a. ncn uh ndnedkdckde dea bendbiaksdeccceseses 8

Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246,

ee ey. EE hace vind 0scucd be nddediaedtuewenissanseses 9

Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d

Ss es Gs No Shh 60350 Cedeercdocaccdstocceccsecs 7

Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199,

Sh CD <ccchcewepeundesehssenesds.cobvetsssesusas 8

Treatises

Herman Schwartz, “Judges as Tyrants,” 7 Crim. Law

abotin, Bar. ESTE, BD. ESD cc cccccccccccccvcccccccceccess 15

Voice Print Admissibility, Fall, 1975 issue, ‘The

American Criminal Law Review” at p. 171 .........6600005 17

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1976

No.

SPENCER MIMS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH JUDICIAL CIRCUIT

Petitioner, SPENCER MIMS, respectfully prays that a Writ of

Certiorari will issue to review the Judgment of the United States

Court of Appeals for the 8th Circuit, entered in this proceeding on

February 8, 1977, and to review the denial of a rehearing of said

proceeding, dated March 10, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals, as well as the District

Court opinion, have not been printed, but the said District Court

findings and rulings are contained in the original record which has

been supplied to the Court of Appeals in connection with the

proceedings had therein. Counsel is requesting that the record be

certified and transmitted to this Court on behalf of the instant

petitioner.

JURISDICTION

The judgment of the Court of Appeals for the Eighth Circuit was

entered on February 8, 1977. A timely petition for rehearing was

denied on March 10, 1977. The jurisdiction of the Supreme Court

is invoked under the provisions of Section 1254(1), Title 28

U.S.C., and Rules 19(b) and 22(c) of the Rules of the Supreme

Court of the United States. An Order extending the time for the

filing of the within petition for certiorari to May 9, 1977.

QUESTIONS PRESENTED

I. Can a Conviction for violation of the United States’

Controlled Substances Laws stand, where the sole evidence

establishing the appellant’s knowing involvement in an alleged

drug distribution conspiracy derives from the wire interception of a

voice identified as being that of the appellant, SPENCER MIMS,

by a DEA Agent, lacking aural expertise, whose only opportunity

for observation of the specific aural character of the appellant’s

voice arose during conversations with the appellant upon his

arrest, and, while listening to his testimony given in connection

with a pre-trial suppression hearing, the fruits of which are by law

inadmissible on the trial in chief; and, did such surreptitious

obtaining of voice exemplars by the government agent, violate the

petitioner's right to the effective assistance of counsel under the

Sixth Amendment to the United States Constitution, as well as his

right to procedural and substantive due process under the Fifth

Amendment, and accordingly void his conviction?

II. Can a conviction, based solely on circumstantial evidence,

stand, as constitutionally valid, where the trial record reviewed

does not support the ultimate inference of guilt beyond a

reasonable doubt, and where the Court of Appeals clearly

misinterpreted the testimony adduced on the trial, in order to make

plausible its affirmance of the conviction, and in order to give

validity to a clearly erroneous judgment in the face of a record,

which viewed in accordance with the actual proofs, is totally

incapable of supporting the inference of guilty knowledge or

participation, required in such cases of conspiracy, or involvement

in any of the substantive offenses charged?

III. Can a jury trial be considered a “‘fair” one, before a “fair,

impartial,unhurried jury,” within the meaning of the Fifth and

Sixth Amendments to the United States Constitution, where the

jurors drawn to try the case are subjected, during the pre-

Christmas holiday season, to sequestration, and to a trial schedule

requiring their attendance upon the trial from 9:15 A.M. to 7:00

o'clock P.M., Monday thru Friday, and from 9:15 A.M. to 5:00

o'clock P.M., on Saturday; and when the case was submitted to

them at 3:24 P.M. of Saturday, December 13, 1976, and they

were required to reach a judgment, as to five separate defendants

under a complex 15 count indictment, and where they returned

guilty. verdicts against all defendants without exception, on all

counts, within five and one half hours, and by 8:57 P.M. of

December 13, 1975; and, whether the setting of such a schedule

by the trial judge, under the circumstances appertaining,

constituted an unlawful abuse of discretion, and a perversion of the

Speedy Trial provisions of the law, all in derogation of the

defendant’s indefeasible rights, ensured him by the Fifth and

Sixth Amendments to the United States Constitution, to a fair

trial, before a fair tribunal, uninfluenced and unaffected by

judicially created artificial pressures?

IV. Whether the setting of the schedule outlined above

constituted a denial to the defendant of his right to the effective

assistance of counsel, in violation of rights guaranteed by the Sixth

Amendment to ithe United States Constitution?

V. Whether a conviction which rests upon lay opinion as

regards voice identification, can stand, absent a voice print, or

spectogram, in light of the considerations discussed in the cases of

United States v. Baller, cca4, 1975,519 F.2d 463; United States

v. Frank, 511 F.2d 25, cca 6, 1975; and United States v.

McDaniel, CA DC, 538 F.2d 408; and whether this conflict

among respectable judicial authority should be settled?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V to the United States Constitution, provides:

“No person . . . shall be deprived of life, liberty, or property,

without due process of law. . .”

Amendment VI to the United States Constitution, provides:

“In all criminal prosecutions, the accused shall enjoy the

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

State and district wherein the crime shall have been

committed . . . and to have the assistance of counsel for his

defence.”

RULES OF COURT

Rule 45 of the Federal Rules of Criminal Procedure:

“In computing any period of time . . . . The last day of the

period so computed shall be included, unless it is a

Saturday, a Sunday, or a Legal holiday . .. . “legal holiday,”

includes .... Christmay Day... .”

Rule 50 of the Federal Rules of Criminal Procedure:

“To minimize undue delay . . . each district court . . . shall

prepare a plan for the prompt disposition of criminal cases

which shall include rules relating to the time limits within

which . . . the trial itself. . . , must take place... .”

STATEMENT OF THE CASE

On or about July 30, 1975, SPENCER MIMS was charged,

along with five other co-defendants, in a 15 count indictment, with

the offenses of conspiring to distribute heroin and cocaine, and to

possess with intent to distribute these substances, and with 14

separate offenses of distribution of heroin and cocaine, Schedule I

and II, Controlled substances.

Wire tap interception orders had been obtained, and, for

purposes of this petition, only two of the interceptions related to

the petitioner, Mims; one on May 9, 1975, and one on May 13,

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1975. Neither of these calls was clearly, on the face, narcotics

related. The call of May 9th was one in which the recipient of the

call informed the caller (allegedly Mims) that he (Mims) had

dropped off some suits which “they liked.” (App. p. 39A)

The call of May 13, 1975, was again from the defendant, James

Jackson to (ostensibly) Mims, in which Jackson stated that he

wanted the “same suit all the way up.” (App. p. 24 of opinion) The

opinion of the Court of Appeals recited that Mims agreed to

deliver immediately; and premised its judgment that the evidence

against Minis was sufficient, upon surveillance which established

that Mims, “shortly thereafter” drove to Jackson’s home, and that

Jackson thereafter delivered an ounce of heroin to the DEA agent,

Vaughn.

The record however does not reflect that Mims went to

Jackson’s home. (As shown on pp. 1, 2, 3A, appendix) The

testimony indicated that Mims drove to 5622 Highland Ave.,

Kansas City, Mo., was there 2 or 3 minutes; and no one ever saw

the co-conspirator, Jackson, enter those premises, or exit them;

but, Jackson was seen driving a car some 4 blocks distant from the

premises, “‘in the area of 54th St.” The record is totally devoid of

any testimony even remotely suggestive of any delivery of

contraband to Jackson, by Mims on this, or any other occasion.

The dates of May 9, and May 13, 1975, have significance

because, on November 20, 1975, Mims, took the stand, in open

court, in support of a motion to suppress and to quash and dismiss

the indictment, at which time DEA Agent VAUGHN was

surreptitiously listening to the aural peculiarities and char-

acteristics of Mims’ voice in order to obtain voice exemplars for

comparison purposes to use on the trial. No notice of this activity

was given either the defendant, or his attorney, at the time.

On the trial, DEA Agent, VAUGHN, who admitted having no

aural expertise, undertook to identify Mims as being one of the

callers in the May 9th and 1 3th calls described above. He admitted

his identification was predicated upon his having heard Mims

voice while testifying on the pre-trial motions in open court. .

(Appendix, pp. 8A, 9A)

The trial of the cause began December 1, 1975. The jury was

ordered sequestered for the term of the trial. Additionally, the

Court ordered the case to be tried from 9:15 A.M. of each day until

7:00 o'clock P.M. of each day, except Saturday, when the trial

time was 9:15 A.M. till 5:00 o’clock P.M. (Appendix, p. 10A)

Objection was made to this procedure, as imposing upon the

defendants’ rights to confer with their counsel; to research the

problems which might arise; and to rest. The defendants urged that

the trial schedule itself was a strain on all parties concerned, and in

truth a miscarriage of justice. (Appendix, pp. 11A to 14A) The

court persisted in maintaining the schedule, citing among other

things, his crowded docket. (Appendix, p. 15A)

At 3:24 P.M. of Saturday, December 13, 1975, the jury retired

for its deliberations. At 8:35 P.M. the jury had reached its verdict

as to all defendants. At 8:57 P.M. the jury formally returned its

verdicts of guilt as against all of the defendants. Mims was found

guilty of the conspiracy count, and of counts 8 and 10,

additionally, which counts related to the transactions of May 9th

and 1 3th, to which the telephone interceptions about which Agent

Vaughn testified, related. .

The foregoing facts sufficiently circumscribe the issues herein

raised upon review via certiorari.

ARGUMENT ON THE LAW

THE CONDUCT OF A SURREPTITIOUS

AURAL SHOW UP, IN THE ABSENCE OF

NOTICE TO THE PETITIONER, OR HIS

COUNSEL, BY DEA AGENT VAUGHN, AND

HIS USE OF VOICE EXEMPLARS SO

OBTAINED IN FIRMING UP HIS IDENTI-

FICATION TESTIMONY ON THE TRIAL IN

CHIEF, AS VOIDING THE CONVICTION

OBTAINED, UNDER THE FIFTH AND

SIXTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

In the within case, the petitioner, SPENCER MIMS, testified

in connection with his motion to suppress and quash prior to trial.

On the trial in chief, two crucial wire interceptions, supposedly

involving the petitioner as a participant therein, were introduced

against the defendant.

The identification of one of the voices participant as being

SPENCER MIMS, was brought about through the testimony of

DEA Agent, Harold T. Vaughn, who stated that he was able to

identify the voice on the phone as being that of Mims, because he

talked with him for 45 minutes, on the occasion of his arrest:

listened to several tapes of him, and compared what he heard on

the tapes with his recollection of Mims’ voice as he had heard him

testify on the pre-trial hearings.

What this identification testimony amounted to was an aural

show up, made possible only because of the officer’s exploitation

of a proceeding to which the defendant was required to resort in

vindication of rights which he believed he possessed under the

constitution; and a proceeding which, by any fair reading of

Simmons v. United States, 390 U.S. 377, 394, 19 L.Ed.2d 1247,

1259, 88 S. Ct. 967, 976, 1968, could not be so exploited.

Aural show ups are legally akin to line-ups. They are one and

the same animal.

Thus, what is said of line-ups, and the fairness of their conduct,

applies with equal force to aural show-ups. First, a line-up cannot

be fatally suggestive. It is axiomatic, and needs actually no citation”

of authority to suggest that a line-up which has but one suspect in it

would violate the constitution, as being improperly suggestive. Cf.

Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S. Ct.

1967.

Likewise, an aural show-up, in which the identified person sits

in a witness box and is viewed by his trial identifier, and is listened

to as he speaks, is constitutionally defective; and any identifi-

cation, in court, which is premised upon such a show up is tainted.

Cf. United States v. Ash, 413 U.S. 300, 312, 37 L.Ed.2d 619,

628, 93 S. Ct. 2568.

The precise issue here raised, as to the suggestibility of an aural

show up, and as to it being held surreptitiously, without order of

court, or notice to the defendant or his attorney, has never been

before the Supreme Court.

United States v. Dionisio, 410 U.S. 1,35 L.Ed.2d67, 93 S. Ct.

764, affirmed that aural show ups are akin to visual show ups. On

pp. 14 of 410 U.S. and 79 of 35 L.Ed.2d, the Supreme Court

suggested, ““The physical characteristics of a person’s voice. . .

(are) like a man’s facial characteristics . . . .”” United States v.

Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S. Ct. 1926, 1967,

affirmed that a conviction resting on a suspect pre-trial

identification procedure, which the accused was helpless to

protect himself against, voids a conviction as a deprivation of Fifth

Amendment rights.

In this age of increasing utilization of wire tap evidence in

Criminal cases, the procedure employed for identification of

unknown and suspect voices, must be every bit as subject to the

rule of Wade, supra, and Gilbert v. California, 388 U.S. 263, 18

L.Ed.2d 1178, 87 S. Ct. 1951, as a pre-trial viewing of a suspect’s

“facial characteristics.”

At the very least, the attorney representing the suspect must be

informed of the fact that a pre-trial identification procedure is

being conducted. See Gilbert v. California, supra. That was not

done here.

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Wade turned upon the fact that the identification procedure was

defective because “the lineup was conducted without notice to,

and in the absence of his counsel,” (p. 223 of 388 U.S.), in

derogation of the defendant’s right to the effective assistance of

counsel.

In this case, counsel was present at the pre-trial hearings when

his client testified, but, he had no notice given him of the fact that

_ an aural show up was being simultaneously conducted.

The Sixth Amendment right to the effective assistance of

counsel required the giving of such notice to counsel, so that steps

could be taken to assure the fair conduct of the prospective trial,

and to preserve to the defendant a meaningful defense to the

government’s charges.

It is clear from other situations, that the surreptitious eliciting of

evidence, cannot be resorted to by the government, from a

constitutional standpoint. Such activity is absolutely proscribed.

Cf. Brewer v. Williams, ___ U.S. __, 51 L.Ed.2d 424, on p.

437; Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246,

84S. Ct. 1199.

Thus, here, where the only evidence relied upon by the Court of

Appeals to sustain the conviction, and to connect the petitioner to

the government’s charges, rests on an aural show-.p, sur-

reptitiously conducted, in derogation of the petitioner’s Sixth

Amendment rights, without notice to him or his attorney, certiorari

should be granted to define, in so important an area, the procedural

requirements necessary for validation of aural identification

testimony.

Petitioner believes the import of the line-up cases, supra

coupled with United States v. Dionisio, supra, compels the

conclusion that voice comparison, and the taking of voice

exemplars should be accomplished with all of the safeguards

attendant any other type of physical viewing, and, that in the

within case, certiorari should be granted to clarify the limits which

exist in this area.

Il.

THE EVIDENTIARY INSUFFICIENCY OF

THE EVIDENCE AGAINST THE PETI-

TIONER, AND THE CONFLICT OF VicW

REGARDING THE SUFFICIENCY OF THE

PROOFS, AS BETWEEN THE CIRCUITS.

As a part of the circumstantial case against the appellant,

MIMS, the Court took the position that Mims circumstantially

delivered drugs to the co-defendant, James Jackson, who in turn

delivered the same drugs to Agent Vaughn. Yet the transcript does

not support that thesis. On p. 1A of the appendix, testimony

indicates that at about 3:30 P.M. of May 13th, Mims left his home

and drove to an address known as 5622 Highland Ave., and that

he was there for 2 or 3 minutes; and that while surveillance was

being conducted on that premises, Mr. Jackson was never seen to

enter it, or exit it; but that Jackson was seen driving a car some four

blocks away, “in the area of 54th Street.”

Accordingly, the finding of the Appeals court that ‘Surveillance

revealed that Mims then drove to Jackson's home, and that

shortly thereafter Jackson went from his home to Agent Vaughn's

apartment and sold him one ounce of heroin,” is not supported by

the record at all. 5622 Highland Ave. was not the home of James

Jackson, rather 4033 Oak St., Kansas City, Mo. (See p. 4A,

appendix) As the record stands on this date, there was not even the

opportunity for Mims to have any contact with Jackson prior to the

delivery of heroin by Jackson to Agent Vaughn, and the Appeals

Court erred grievously on this point.

Additionally, each and every other averment set forth in the

opinion as a basis for sustaining Mims’ conviction goes to mere

association, and to circumstances which cannot be used to

establish a case, if the law of other circuits were followed.

For example, in the Fifth Circuit, in United States v. Suarez

and Lester Chiong, 487 F.2d 236, cca 5, 1973, cert. den. 415

U.S. 981, 39 L.Ed.2d 878, 94 S. Ct. 1572, the defendant Chiang

was seen leaving and entering the house of a known dealer in

narcotics, carrying a small bag. The court held this circumstance

to be insufficient to premise guilt upon.

To the same effect, the Ninth Circuit, in United States v.

Epperson, 485 F.2d 514, cca 9, 1973, said that even presence ina

room where Mescaline was found, coupled with association with

the actual wrong-doer, was not enough to constitute one a

conspirator.

To like effect was the Fifth Circuit's case of United States v.

Martin, 483 F.2d 974, cca 5, 1973; and that of United States v.

Arroyave, 477 F.2d 157, cca 5, 1973, where the Court struck

down a conviction based upon the fact that his pick-up truck had

been seen at other co-defendants’ homes, when marijuana was

delivered there. And, again, the Ninth Circuit, in United States v.

Whitman, 469 F.2d 1370, cca 9, 1972, held that even being in a

vehicle where narcotics might be carried is not enough to convict a

person of involvement in a conspiracy.

Yet, in the within case, there is not a scintilla of direct proof of

the petitioner having ever had his hand on any drugs. Certainly, in

accord with the above-cited opinions, if the petitioner had been

tried in the Fifth or Ninth Circuits, his conviction could not be

maintained, for there is nothing claimed in this case occurred,

which did not occur in the cases from other sister circuits; and thus,

there is a conflict among the circuits upon what is substantially a

common place fact situation. That conflict should be resolved by

granting certiorari to review the judgment of the Eighth Circuit.

Il & IV.

THE COERCIVE TRIAL SETTING; AND ITS

EFFECT UPON THE TRIAL JURORS, AT-

TORNEYS, & DEFENDANTS.

42 years ago in Brown v. Mississippi, 297 U.S. 278, 80 L.Ed.

682, 56 S. Ct. 128, 1935, Chief Justice Hughes wrote in a highly

relevant fashion of the constitutional meaning of the term “fair

a He said, beginning on page 285 of 297 U.S. (p. 686 of 80

.Ed.):

“The State is free to regulate the procedure in its courts in

accordance with its own conceptions of policy, unless in

doing so, it offends some principle of justice so rooted in the

tradition of conscience of our people as to be ranked as

fundamental . . . The freedom of the State in establishing its

policy is the freedom of Constitutional government, and is

limited by the requirement of due process of law. Because a

State may dispense with a jury trial, it does not follow that it

may substitute trial by ordeal. The rack and the torture

chamber may not be substituted for the witness stand. The

State may not permit an accused to be hurried to conviction

under mob domination (here we substitute the words, “by sly

artificially created coercion”)... Nor may a State, through

the action of its officers, contrive a conviction through the

pretense of a trial which in truth is “but used as a means of

depriving a defendant of liberty through a deliberate

deception of court...

The due process clause requires that State action whether

through one agency or another, shall be consistent with the

fundamental principles of liberty and justice which lie at the

base of all our civil and political institutions... .

The duty of maintaining the constitutional rights of a person

on trial... rises above mere rules of procedure, and whenever

the court is clearly satisfied that such violations exist, it will

refuse to sanction such violation, and will apply the

corrective... .”

The Federal Rules of Criminal Procedure, in Rule 45 thereof,

make clear, by inference at least, that Saturday is not a working

day of Federal Courts. They also impliedly recognize the sanctity

of Sundays, and legal holidays, including Christmas, as being non-

working days. The underlying policy considerations flowing from

the adoption of the Rule are manifest.

But, even apart from any formal Rules which might have been

adopted for the conduct of court trials, the limitations of the human

creature are well known and self-evident. Attorneys, defendants,

and jurors are all mortal. None of them can be presumed to possess

special or extraordinary powers of attention-span,comprehension

or physical endurance.

No trial should ever be conducted under conditions which could

be described as an “ordeal.”

In a practical and realistic sense then, the appraisal of any given

situation depends largely upon the appraiser's sensitivity. As

Edward Markham, the poet, so well observed of the Man with the

Hoe, “What to him are the Pleadides, . . . the sunset - the rose?”

The true character of “sophisticated coercion” has to be

appreciated by equally as sophisticated minds. A Judge who, in

the Christmas season, sequesters a trial jury, and then compels it

to work 10 hours a day for 5 days a week, and 8 hours on the

following Saturday of each week, when he should appreciate the

anxieties experienced by the “average” juror, for his family, and

the coming holiday, all during the month of December, and who

keeps them locked up, for an undefined period of time, unable to

shop for gifts, or to communicate with friends and family, or to

organize their personal plans, has to be nothing less than callous,

and at best cunning and devious.

The foregoing scenario did not involve a statement of certainty

as to the length of any possible sequestration or service. It did not

take into account the physical needs, or conditions, of the jurors, or

their families. The jurors were in truth made to suffer an “‘ordeal”’

in every sense of the word.

Then, as to the defendants, and their counsel. Certainly, as Mr.

Holliday, the attorney for Mr. Muhammad pointed out, the

schedule imposed insuperable physical demands upon them. He

indicated that he was physically unable to stand up under so

grueling a schedule. He spoke for all of the attorneys when he

pointed out to the trial judge that research upon issues presented

during the trial of the case was rendered impossible.

Certainly a lawyer could not reflect upon the days’ occurrences,

and bring his best attention to newly arising events in the trial. He

could not carry out any meaningful research into those issues.

After 7:00 P.M., assuming some time to depart from the court

room and confer with the client, the lawyer could find no library

open to him. i.e. unless he had a complete federal library in his

office, and such a circumstance is indeed rare. And then the lawyer

would have to eat and loosen up - i.e. unless he was some sort of

bionic man.

The court must take judicial knowledge of the fact that lawyers

are not automatons; and that being so, what occurred here was

clearly a destruction of the client’s right to the effective assistance

of counsel.

Surely the trial judge knew this to be the case; but, under the

excuse that the speedy trial act over-rode all of these

considerations, he persisted in maintaining the schedule he had

begun, over the attorneys’ objections. (See pp. 11 to 15,

Appendix)

Then finally, on a Saturday, virtually one week before

Christmas Eve. he instructed the jury, after 3:25 P.M. Their rapid

return with guilty verdicts as against all of the defendants, on a 15

count indictment, bespeaks graphically, the jury’s desire to get rid

of “‘the case,” and go home.

The trial judge had communicated his wish to swiftly determine

the cause, by deliberate acts and tokens, which were far stronger

than any words he might have uttered.

His calculated aim was to “obtain a conviction through the

pretense of a fair trial which was in truth but used as a means of

depriving the defendants of their liberty.”

Had the trial judge walked into the jury room and said, “ Hurry

up with your verdict of guilt,” there would be no difficulty

apprehending what should be done here. Had there been a mob in

the Court, or any other more obvious display of coercive pressure,

designed to influence and speed up the jury’s verdict, there would

likewise be no difficulty apprehending what should be done. And,

to the same extent, notwithstanding the subtlety of the trial judge’s

approach, he deprived the petitioner of a fair trial by subjecting all

of the litigants and the jury to improper pressures aimed at

coercing a judgment of guilt.

Nothing about the Speedy Trial Act, or the exigencies of the

mouting volume of criminal cases, can ever justify the jettisoning

of basic constitutional rights, and especially that of the right to a

fair trial in a fair tribunal - in which - as Prime Minister Trudeau

says, “a calm, impartial, unhurried atmosphere” must exist in

order that a jury of 12 ordinary persons taken from the situs of the

commission of the crime, can solemnly, and without coercion,

deliberate upon the evidence and the law affecting a given case.

Herman Schwartz, wrote in his article entitled, “Judges as

Tyrants,” 7 Crim. Law Bulletin, Mar. 1971, page 129, on page

130:

‘A judge’s power does verge on the absolute. Most of what

trial judges do... is quite unreviewable... And. ..even when

the judicial conduct becomes so flagrant that a decision is

reversed, the defendant still has to endure the tension, the

expense, and the fear of punishment, that a trial produces —

and all he gets is a new trial with more of the same. Thus, the

existence of appellate review simply is not an adequate

respons ‘o the problem.”

Here, the trial judge virtually abused everyone on hand. He

evinced no concern for the problems of busy trial attorneys who

had to maintain offices, re-arrange other trial schedules, pay the

secretary and the phone bill and the rent; keep in touch with other

clients and preserve their affairs intact.

He had no decent regard for the defendants who had to silently

endure his ordeal, and wonder about the effect of the procedure

being employed upon their lives and fates.

He had no decent regard for the jurors, and their peace of mind,

and/or personal domestic and other problems. He made no effort

whatever to assure them of the time of termination of the cause, or

any possible recessing of the cause to permit them to prepare for,

or enjoy, the Christmas holidays. No attention was given to any

possible means of ameliorating these concerns.

Rather, the jury was placed in a vice, and straight-jacket, of the

court’s creation, and was made aware of the court’s determination

to just “finish the case,”’ and clear the docket.

Such an attitude, apart from being destructive of the atmosphere

which ought to prevail in American courts, is equivalent to an

instruction to the jury upon the relative unimportance of the

persons on trial, and concerns, as viewed against some other,

presumably more important and paramount concern. And,

nothing should be more important to any jury, than the

responsibility before them. They should not be made to think that

there is any reason why the case before them should not require

their most careful and considered judgment.

More and more this writer is becoming aware of the manner in

which the judicial obsession with clearing dockets has acted to

destroy the constitutional character of the American trial arena - in

both State and Federal Courts.

Somewhere, somehow, someday, someone has to have the guts

tocry, “Halt,” to it all, and to walk up to, and re-define priorities. It

is not up to the Courts to do the impossible, and to solve a problem

not of its own creation.

Society must accept responsibility for the swelling tide of

criminal cases and proceedings, and accept its role again in the

whole of things. Society must once again create the atmosphere in

which a calm, impartial, unhurried deliberation upon cases can be

again had.

Until the People at large assume this responsibility, and provide

institutions that can stem the tide of crime, courts ought to just

plain stand firm on being “Courts,” and preserving the Rule of

Law in the criminal justice system, at the very least.

What was done in the within case, clearly deprived the

defendants of a fair trial, within the meaning of the Fifth

Amendment to the United States Constitution. A line should be

drawn somewhere for the guidance of all participants in these

proceedings; and appellate courts owe the American people a

responsibility to stop apologizing for clearly inappropriate judicial

action. Decisions which are not decisions upon issues of such

moment, which are likely to occur again and again, do a disservice

to the Criminal Justice system as a whole. |

Cases are legion, where appellate courts have shown their

willingness to protect judges, rather than the people, or the

institutions which the judges are supposed to assist in maintaining.

It is easy enough for an appellate court to pretend that there is no

discernable or definable line, or point, of no return, and to validate

the actions of trial judges by saying they acted within their rightful

discretion; but even children know when they are doing wrong, and

surely learned appellate judges, appointed for life, so that they can

speak freely, do.

No body works 10 hours a day, and six days a week, even on less

skillful jobs. Bus drivers, or pilots, or persons having responsibility

for maintaining power lines, etc.

Neither should lawyers.

What was done in the within case clearly deprived the

defendants of a fair trial, within the meaning of the Constitution. A

line should be drawn somewhere. The trial had below went beyond

permissible limits. It was an ordeal - and certiorari should be

granted the petitioners to right what was Clearly a wrong.

THE NEED FOR EXPERT AURAL IDENTI-

FICATION TESTIMONY

In United States v. Frank, 511 F.2d 25, cca 6, 1975, n.13.

the propriety of the voice print method of confirming voice

identifications was passed upon with considerable reflection.

viewing the leading cases on the subject, such as U.S. v.

Addison, 498 F.2d 741 (D.C. Cir., 1974) (denying admission);

and U.S. v. Stifel, 433 F.2d 431, 437, cert. den., 401 U.S. 994,

approving admission.

The case of U.S. v. Baller, 519 F.2d 463, cca 4, 1975,

affirmed the spectrographic method of identification as the

appropriate method.

The law review article on voice print identification, contained

in the Fall 1975 issue of Vol. 13, “The American Criminal Law

Review,” p. 171, leans towards the admissibility of voice prints

as a mode of primary voice identification.

The thrust of all these cases is away from ad hoc lay opinions

of voice identifications.

Apart from that which the petitioner has written in the first part

of his petition regarding the safeguards which must procedurally

attend the obtaining of voice exemplars, it would seem, in light of

the present posture of the law and the technology surrounding the

Spectrograph, that lay opinion evidence such as was used to

sustain the conviction in the within case, should not be permitted

to furnish an identification beyond a reasonable doubt.

Accordingly, for all of the foregoing reasons, a Writ of

Certiorari should issue to the Eighth Judicial Circuit reviewing

that court’s judgment below.

CONCLUSION

For the foregoing reasons, the indictment against the petitioner

should be dismissed, and the conviction reversed.

Respectfully submitted,

MILTON R. HENRY

2211 E. Jefferson Ave.

Detroit, Michigan 48207

Phone: 313-393-0100

Bar No. P-14884

Attorney for Petitioner

INDEX TO APPENDIX

Page

Trial Testimony re May 9th & May 13th

Transactions and surveillance of Spencer Mims ......... la

Trial Testimony of agent Vaughn on Aural Show

Diskdetelsceiedesanaenannnaccaddaichickaseiicase Sa

Trial Judge’s fixing of Court schedule.................. 7a

Defendants’ objection to Trial Schedule ................ Sa

Trial Judge’s Response on Trial Schedule .............. 94

ae nn te eee Ib

Order extending time for rehearing...................... 35b

Order denying petition for Ee 35b

Order extending time for filing of Petition for

Ge ic chs Wu sibbeeaedeswaiectasnetadberesece 36b

APPENDIX

* * *

Q_ And, sir, you have a piece of paper in front of you. Are

you referring to that?

A Yes.

Q_ Will you please put the paper away and testify from your

recollection?

Now, where were you working your surveillance on

y 13?

I was in the area of 3219 Meyer Boulevard.

Did you know whose home that was?

It was the home of Spencer Mims.

What time did you begin your surveillance there?

I began my surveillance at approximately 3:25 p.m.

Now, what did you observe thereafter?

I had received information from another agent over the

radio that Spencer Mims —

MR. PIERCE: We object to this as hearsay.

MR. ALTO: I would agree to that, Your Honor.

Q_ (By Mr. Alto) Officer, without going into the information,

did you receive certain information?

A Yes, sir, I did.

Q What did you observe thereafter?

A Approximately 3:30 p.m. I observed Spencer Mims exit

the residence at 3219 Meyer Boulevard and enter a black over

green Cadillac.

Q What time was that, sir?

A That was approximately 3:30. I am sorry, approximately

4:30 he exited the residence.

Q_ Did you follow him?

A_ Yes, sir, I did.

Q Where did he go?

A_ He proceeded down Meyer Boulevard, and up Paseo, and

ended up at 5622 Highland, Kansas City, Missouri.

Q_ When he arrived at 5622 Highland Avenue, what did he

do?

>FO>O>rO>

A He got out of his vehicle and entered the residence at that

location.

Q How long did he stay in the residence?

A. He was in the residence just a short while, approximately

two to three minutes, maybe.

Q Then what did you see him do?

A He came out of the residence, got back into the Cadillac

and left the area.

Q Did you follow him?

A I started to follow him, and then was called off.

Q Where did you go?

A | again returned to the area of 5622 Highland and began

following a white, 1975 Mercury Cougar.

Q Let me ask you this: When you got back to owe

Highland, when you first got back there, did you see anybody’

A No, sir, I didn’t when I first got back there.

Q What did you do, just sit there? .

A. No. The surveillance was already moving at that time, and

I caught up with the surveillance and began following the

ar.

“— Did you see anybody exit the house at 5622 Highland?

No, sir, | was unable to see anyone.

Where did you first pick up the Cougar?

On Paseo; probably in the area of 54th Street.

How far is that from 5622 Highland?

Approximately four blocks.

Okay. Did you follow that Cougar?

Yes, sir, I did.

How many people were in the Cougar?

Only one person in the Cougar at that time.

Where did you follow the Cougar to?

The Cougar went to the area of 4033 Oak.

What happened there?

When I got to the area — I had been stopped by some

traffic signals, and when I got to the area I observed the white

Cougar parked right in the general vicinity of 4033 Oak.

>POPFO FO FO PO FO FO

Did you stay on the Cougar; watch the Cougar?

Yes, sir, I did.

How long did the Cougar stay there?

The subject was there about fifteen minutes.

Did you see the subject leave the location?

Yes, sir, I did observe the subject exit the residence at

4033 Oak and enter the white Cougar.

Q Do you know who the subject was?

A Yes, sir, the subject was James Jackson.

Q_ Did you follow him, then, when he left the Oak Street

address?

Yes, sir, I did.

Where did you follow him to?

Followed him to 8707 Crystal Lane.

.What did you know that address to be?

That was the apartment or the address of the apartment

which was being used as an undercover apartment at that time.

Q After Mr. Jackson arrived there, what did you see him do?

A_ I saw him park in front of the building at 8707 Crystal

Lane. He exited the vehicle and entered the front door of the

building at that location.

Q The person you have identified by name as Spencer

Mims, do you see him here in the courtroom?

A Yes, sir, I do.

Q Would you point to him, please, and describe what he is

wearing?

A He is the gentleman on the far corner in the maroon-

colored suit with a maroon-and-white-colored tie.

THE COURT: The record will show that he has

described this defendant.

Q (By Mr. Alto) Let me ask you this: Did you see Mr. Mims

leave his residence and get in his car?

A Yes, sir, I did observe Mr. Mims come out of the

residence.

Q_ Was he carrying any suit of clothing or any clothing with

him?

>O>D >

> OP>D >

A_ No, he was not.

Q Did you see Mr. Mims leave his car when he arrived at

5622 Highland and enter that address?

A Yes, sir, I did.

Q Was he carrying any suit or articles of clothing with him?

A_ No, sir, he was not.

Q The person you have identified as James Jackson, do you

see him here in the courtroom?

A Yes, sir, I do.

Q Will you point to him, please, and describe what he is

wearing?

A He is the gentleman in the tan-colored suit with the tan

vest.

THE COURT: The record will show he has described

this defendant.

Q (By Mr. Alto) Now, you last testified that you saw Mr.

Jackson go in 8707 Crystal Lane. Did you stay there at the

undercover apartment?

A Yes, sir, I did. I maintained surveillance at that location.

MR. ALTO: At the present time, I have no further

questions, Your Honor.

THE COURT: Cross-examination.

CROSS-EXAMINATION BY MR. RUSSELL:

Q Officer Searcy, on this date of May 13, how long had you

been involved in this particular investigation?

Approximately one month, I would say.

Had you been involved in other surveillances of homes?

Yes, I had been assisting in other surveillances.

Had you followed Mr. Jackson prior to that date?

Yes, sir, I had.

Can you tell me, on May 13, 1975, what was Mr. Jackson

ring?

I believe he had on a tan suit and white hat at that time.

You mean a suit like what he is wearing today?

Something similar; more of a leisure-type suit.

Would you refer to that tan suit as a brown suit?

It is brown, tan; yes, sir, 1 would say.

DOPrArA >

>OPFrAO YS

Q_ And so you had seen him on occasion wearing a brown

Suit or tan-type suit?

A Yes.

(2 It may have been a different style than the suit he has on

today; is that right?

A_ Very possibly.

Q_ So he has more than one brown suit, if I can throw it into

that category?

A_ I couldn’t testify as to whether he does have more or not:

he could possibly.

Q You have seen him in more than one?

A_ I am not certain whether the suit he has on is exactly the

same one or not.

Q Okay. You indicated that you were actually following Mr.

Mims and you didn’t see Mr. Jackson come in and out of his

house; is that right?

A Not at the area of 5622 Highland.

Q_ So, to your personal knowledge, you don't know whether

the contact was ever made between Mr. Mims and Mr. Jackson:

is that right?

A Not to my own personal knowledge.

Q You didn’t see them together or hear them talking together

or see them make any kind of transfers or have any conversation;

is that right?

A_ No, sir, I didn’t.

Q_ Now, you said you saw Mr. Jackson go to 8707 Crystal

* * *

I knew — where I didn’t personally make a recording, but I did

know it was your client, yes.

Q_ Where you knew? You mean someone told you they knew

it was my client?

A_ Both. Someone would tell me plus I would know when I

listened.

Q Do you get any differences between one wiretap in the

quality which would change the sound of the voice?

A Not change the sound of the voice. There would be

variance in the quality of the tapes.

Q_ But as far as you know — I think there are four individual

wire interceptions from one on the other. Every time one is

intercepted they sound the same over the wire intercepts?

A_ To the best of my knowledge, the person would sound the

same, yes.

MR. WILLIAMS: Thank you.

THE COURT: Mr. Vaughan, you said something

about having heard someone in court. Which one?

THE WITNESS: Well, I have heard Mr. Jackson in

court. I have heard Mr. Mims in court, and I have heard Mr.

Jardan in court.

THE COURT: For how long a period of time have you

heard them?

THE WITNESS: It was a brief period of time during

the motion hearings.

THE COURT: Any further questions, gentlemen?

RECROSS-EXAMINATION BY MR. PIERCE:

Q I take it from your answer that that exposure, in and of

itself, would not allow you to identify anyone’s particular voice;

is that correct?

A Would you ask the question again?

Q_ Surely. In respect to the court proceedings that you have

just talked about, having had exposure to any particular voice

from ten to fifteen minutes in your expertise of having done this

before, that would not be enough, in your opinion, would it, to be

able to clearly identify that voice when you heard it again?

A_ If the only time I had ever heard it — for example, Mr.

Jackson's voice — was the time that I heard him in court and I

had never talked to him or listened to him on the phone, it would

probably be more difficult.

MR. PIERCE: I understand. Thank you, sir.

MR. RUSSELL: Mr. Vaughan, I take it, since this is

the first time you have testified in this regard, you have no formal

training in making voice comparisons, voice prints?

THE WITNESS: No, sir, I have had no formal

training.

MR. RUSSELL: Thank you.

MR. PIERCE: Just one more question. Would you

is that the things that we normally will be discussing in those

conferences has nothing at all to do with your function as the jury

in the case.

So, please, simply regard those conferences as a

necessary, usual and customary part of any trial and disregard

them.

If anything should arise during those conferences that

touches on your function as jurors you may be assured I will tell

you all about it at that time. Otherwise, as I say, simply disregard

those conferences as necessary and routine.

There may be a time or two during the trial of this case

when I think it will be helpful to you if I give you some further

instructions, and if such an occasion should arise I will do that.

I believe, then, with that very brief statement of it, plus

my reminder to you that the hours we will plan on keeping in this

case are that we will be in the trial of this case from

approximately 9:15 each day until approximately 7:00 P.M.

each day except for Saturday. On Saturday we will start at

approximately 9:15 in the moming and we will stop at

approximately 5:00 P.M. Saturday afternoon.

I know that you folks are prevented from going about

your ordinary functions and duties so we are going

There are two Jacksons in this case, as you well know. There are

five defendants in this case. And it was only after your man was

thoroughly described where there could be no mistake, and you

know there is no mistake, that I simply asked him to rise and sit

down so the jury can begin to put these people together in their

minds.

If you think that is error, so be it. I do not. And if I ask

one of them to rise, don’t tell him not to.

MR. HOLLIDAY: I have one other motion.

THE COURT: Yes, sir. You have two more minutes.

We will take the rest of them up at the noon recess.

MR. HOLLIDAY: I want to, at this time, move that

the trial schedule of this case be revised. I base that on the

announced trial schedule that we will be here from Mondays

through Saturdays from 9:00 to 7:00.

THE COURT: 9:15 to 7:00.

MR. HOLLIDAY: A period of ten hours per day. I say

that these defendants are entitled to time to confer with counsel.

Counsel is entitled to time to do some research and counsel is

also entitled to some time to go home and rest, as well as some

time to visit with their friends and family.

I say that it has been recognized in this country, at least

since the administration of Franklin Roosevelt, that forty hours a

week was a normal work week for an ordinary person. I call the

Court's attention to the fact that I, for one, am fifty-seven years

old. Other counsel in this case may not be as old, but also have

some physical problems. I, for one, suffer from high blood

pressure, as most people do when they get fifty-seven years old.

I think it is an undue strain upon me, an undue strain on

counsel, an undue strain on the defendants. We have no way of

knowing how long this case will last, and I will say this, Your

Honor, that defendant Nathaniel Muhammad intends to put on

extensive evidence in this case, and I don’t know how long

defendant Muhammad's evidence is going to last. I say that it is

an unfair burden and it makes it most difficult, if not impossible,

for these defendants to receive a fair trial when they are required

to remain in the courtroom ten hours a day, six days a week,

without any opportunity to confer with counsel and without their

counsel having any opportunity to research some of these

questions.

I come from a little, three-man firm. Many others here

are single practitioners. No one on this case representing the

defendants has any extensive number of people working with

them. The United States, on the other hand, has God knows, I

don’t know how many attorneys or people, or other people they

can call upon to help them.

We noticed, for instance, yesterday that Mr. Tetrick

walked into the courtroom and handed Mr. Alto a brief which

had been prepared. We have no such facilities as those. And in

addition to that, the United States, Your Honor, has been

working on this case since January. We came into the case in

September when the indictment was filed. The Court gave us

until the first day of December to be ready to go to trial.

It has utilized all of the resources that we have,

certainly utilized all the resources I have, in order to be prepared

to go to trial in such a short period of time on a case which has

taken the Government so long to prepare.

We are not complaining about the fact that we are

having a speedy trial, because this is required, but we are

complaining about the fact of the schedule which the Court has

set. And the justification for the schedule, Judge, is the thing,

when you compare it in terms of the rights of the defendants,

cannot stand.

What is the justification? Expediency? Time? Money?

What does money have to do when it comes to dispensing

justice? What does time have to do in comparison with the rights

of these defendants? It is an entirely unreasonable thing, and,

really, Judge, I have never in my twenty-five years of practice, I

have never known of an occasion where a judge has so arbitrarily

set such a schedule as this.

THE COURT: Well, you just may not be conversant

with what the judges now do. First of all, you have not asked for a

continuance. Secondly, at an earlier time, you did tell me you

had commenced some preparation even before the indictment.

Third, no one in this case has, as of yet, although you have made

these overly broad charges and assertations, has requested of me

for any time to have a private consultation with their client.

Nobody has asked for an hour’s continuance, minute’s

continuance, or anything else.

10a

We have had only one day of trial, and that did not start

until 2:00 o’clock in the afternoon and ended at 7:00. That was

yesterday. ,

I do intend to follow the schedule of having my jury

here at 9:15 each morning and trying to get started by 9:30 each

morning and run until approximately 7:00 each evening. I do

intend to have the usual and customary recesses that one would

have. I do intend to grant emergency recesses. I do intend to

grant some time continuances if anybody makes a special request

for them and can tell me why they need it. I will be very fair

about that, or at least as fair as I can.

Up to now, I have had no such requests. I have made

no denials. Several times during the voir dire of this jury,

although nobody else asked it, at the time you suggested your

client needed to go to the bathroom, and we simply took recesses

at that time. But because I have to be responsible for the jury, I

forewent any recess and sat through the entire period without

leaving the courtroom.

I am following the same schedule you all are plus,

because, believe me, while this case is moving, the other 650

cases I have on my docket from time to time have to have some

emergency attention. While you gentlemen were sleeping

yesterday, I was down here taking changes of pleas and doing

other matters so I could start promptly on this case at 2:00 p.m.

So there is no problem about it. This is not the first

week I have ever worked or planned to work a six-day week. It is

customary. I work that much. If you knew the overwhelming

volume of federal cases that we have, all of which must be

properly processed or the whole system would fall down, you

would have a little better understanding.

There is nothing special about this case with me. It is

just another case. It is going to receive the usual treatment that

any case receives. It is going to get the appropriate considera-

tions when timely requests are made. There is nothing different

about it at all. I work practically every Saturday in the fall and

wintertime, with the exception of, perhaps, three or four times

lla

when I manage to see a football game. I work every Saturday,

and it is not unusual for me to have a jury down here on

Saturday; nothing at all.

So, gentlemen, your complaints, insofar as I am

concerned, that this case is being treated differently, my

+ * *

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 76-1093

No. 76-1094

No. 76-1095

No. 76-1105

No. 76-1112

United States of America,

Appellee,

v. Appeai from the United

States District Court for

the Western District of

Missouri.

James Jackson, Harold Hudson,

Lushrie Jardan, Spencer Mims,

and Nathaniel Muhammad,

Appellaiits.

2 ok ee SS Sa

Submitted: October 11, 1976

Filed: February 8, 1977

Before GIBSON, Chief Judge, HEANEY and WEBSTER,

Circuit Judges.

GIBSON, Chief Judge.

This case involves a major drug distribution scheme

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

fifteen count indictment was returned against James Jackson,

Nathaniel Muhammad, Lushrie Jardan, Harold Hudson,

Spencer Mims and Juan Pablo Garcia,' charging a conspiracy

to distribute heroin and cocaine and to possess heroin and

cocaine with intent to distribute in violation of 21 U.S.C. §§

841(al) and 846. In addition to the single count of

conspiracy, Jackson was also charged with ten substantive

counts alleging distribution of heroin or cocaine in violation

of 21 U.S.C. §841(a)1) and with three counts alleging

distribution of heroin in violation of 21 U.S.C. §841(a)(1)

and 18 U.S.C. §2.2, Muhammad and Mims were each charged

with two substantive counts of uclawful distribution of heroin

in violation of 21 U.S.C. §841’a)(1) and 18 U.S.C. §2.

Hudson was charged only with conspiracy, as was Juan Pablo

Garcia, who pled guilty prior to trial. The remaining five

defendants, appellants here, were tried jointly and convicted

as charged after an extensive jury trial.

The evidence portrays a well organized illegal conspiracy

for the sale and distribution of controlled substances

extending at least from early January, 1975 until July 23,

1975. Probative evidence of at least 6! overt acts, thirteen of

which constituted substantive violations of federal narcotics

law, was presented to the jury. Starting on March 7, 1975,

Jackson made a series of seventeen sales of heroin or cocaine

to federal agents or informants. Fifteen of these sales were

'We note, because defendants make constant reference to the fact in

their briefs, that all defendants except Garcia are members of the Nation

of Islam, commonly known as the Black Muslim faith. Muhammad serves

as the local leader of this faith in the Kansas City area. Jackson was, at

least prior to his arrest, a Captain of Security for the Temple of Islam.

Mims was one of Muhammad's assistant ministers and a Supervising

Captain in the Black Muslim hierarchy. Hudson and Jardan subscribe to the

Black Muslim faith, but apparently did not figure in the upper echelons of

the religious organization prior to their arrests.

2Count Il of the indictment charged Jackson with the alleged

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

violation of 21 U.S.C. §§841(aX1) and 845. That count was not

submitted to the jury, however, and was dismissed by the trial court, the

Honorable Elmo B. Hunter, United States District Judge for the Western

District of Missouri.

made to Harold T. Vaughan, a special agent for the Drug

Enforcement Administration (DEA). Jackson was the sole

conspirator present at these illegal sales. His conduct during

the course of the conspiracy, however, estabiished a salient

pattern of frequent contacts with Muhammad, particularly

during negotiations for sales of narcotics and before and after

these sales. On May 9, 1975, for example, Jackson visited

Muhammad’s residence both before and immediately after a

sale of three ounces of heroin to Agent Vaughan. On both

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

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

On June 5, 1975, Jackson bifurcated a sale of seven ounces of

heroin by first delivering five ounces to Agent Vaughan, then

meeting with Muhammad and Mims, and finally returning to

Vaughan with the remaining two ounces. Jackson visited

Muhammad's residence immediately after completing the

second part of the sale. On June 13, Jackson proceeded from

a sale of twelve grams of cocaine directly to Muhammad's

residence. On June 30, after Jackson sold 50 grams of heroin

to Vaughan for $3,000 and boasted of “his man’s” ability to

bring a large quantity of 80% pure heroin to Kansas City, he

immediately drove to Muhammad’s residence. On July 9,

Jackson went directly from Muhammad's residence to

Vaughan’s apartment, where a sale of 26 grams of heroin was

made, and then returned to Muhammad's residence by a

circuitous route. When, on July 11, Vaughan paid Jackson the

balance of $1,300 due on the July 9 purchase, Jackson

proceeded straight to Muhammad's residence. Finally, on July

23, Muhammad met with Jackson at Jackson’s residence prior

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

$1,600. Following this sale, Jackson drove to Muhammad’s

residence. When Muhammad was arrested on July 23, agents

discovered on his person $1,000 in bills with pre-recorded

serial numbers which had been given by Vaughan to Jackson

for the thirteen grams of heroin. When Jackson was arrested

on that same day, the remaining $600 in bills with

pre-recorded serial numbers was recovered from him.

Court-approved wiretaps of the telephones of Jackson,

Mims and Jardan produced evidence of various conversations

between Jackson and Mims and between Mims and Jardan

which were interpreted by federal agents to relate to sales of

narcotics. Mims, Jardan and Hudson were participants in an

arrangement with Garcia which involved the purchase of a

large amount of heroin. Mims and Jardan traveled to El Paso,

Texas, on June 14, 1975, where they obtained approximately

one kilogram of brown heroin from Garcia, a citizen of

Mexico. Although they paid Garcia only $7,000 of the

$40,000 purchase price, he allowed them to take the heroin

back to Kansas City, on the understanding that Jardan would

quickly acquire the additional money, return to El Paso and

pay Garcia in full. After a fruitless three day wait in El Paso,

Garcia telephoned Jardan, who quibbled over the quality of the

heroin and sought to obtain a lower price. It was agreed that

the heroin would be returned to Garcia by a man with a

missing finger, defendant Hudson. On June 17, Hudson

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

approximately one-quarter kilo. Hudson stated that he “really

[didn’t] know anything about that,’ but called Jardan, talked

to him and then allowed Garcia to talk to him. Eventually

Jardan and Garcia reached a new agreement for the purchase

of twenty ounces of the heroin. They were arrested on July

10, 1975 in New Orleans, Louisiana, where they were meeting

to consummate the first step of the new deal. A search of

Garcia’s hand luggage following his arrest revealed twenty

ounces of heroin.

Defendants’ joint jury trial commenced on December 1,

1975, and ended on December 13, 1975, with their

convictions on all charges. All defendants appeal.

Muhammad, Mims and Jackson challenge the validity of the

voir dire examination conducted by the trial court. They

contend that this case was “unusually sensitive’ because of its

concurrent racial anJ religious aspects and that a “most

searching and most thorough” examination of jurors was,

accordingly, required in order to reveal prejudice. It is

defendants’ position that the only adequate means of voir dire

examination under the circumstances of this case would have

been an in camera questioning of individual veniremen by

defense attorneys.

All defendants requested permission to conduct voir dire

examination themselves, assisted by experts. Muhammad filed

a written pretrial motion requesting in camera voir dire by

defense counsel. An evidentiary hearing was held at which

defendants presented expert testimony on the question of

racial prejudice. The trial court subsequently overruled

defendants’ motions and determined that it would adhere to

the usual practice in the Western District of Missouri and

conduct the voir dire examination itself. The trial court

solicited initial and follow-up questions from defense counsel.

Counsel for Jardan and Muhammad proffered and the court

considered a total of 252 voir dire questions. The court also

announced its willingness to question jurors individually and

in camera where general questioning revealed that a particular

venireman might be prejudiced.

The form and scope of voir dire examination are matters

left to the broad discretion of the trial court. Hamling y.

United States, 418 U.S. 87 (1974): United States vy. Cosby,

§29 F.2d 143, 147 (8th Cir.), cert. denied, i a=

(1976); Fed. R. Crim. P. 24(a). The trial court here asked

most of the approximately 250 questions submitted by

defendants, many of which went to the issues of racial

prejudice and exposure to pretrial publicity. Where general

questioning revealed potential prejudice, follow-up questioning

of individual veniremen was conducted by the trial court in

camera. Examination was particularly penetrating with regard

to the sensitive issues of exposure to pretrial publicity and

racial prejudice. See Ham vy. South Carolina, 409 U.S. 524

(1973); United States v. Crow Dog, §32 F.2d 1182, 1198 (8th

Cir. 1976), petition for cert. filed, 44 U.S.L.W. 3749 (U.S.

June 21, 1976) (No. 75-1843); United States v. Bear Runner,

502 F.2d 908 (8th Cir. 1974). A review of the record shows

that the trial court’s voir dire examination combined careful

attention to the identification of possible prejudice with

skillful avoidance of the confusion and delay that may arise

when a jury is selected in a multiple defendant case where

there is the potential of conflicting defenses. We conclude

that the trial court did not abuse its discretion in its conduct

of the voir dire examination.*

Many contentions raised on this appeal relate to the

question of whether defendants were so prejudiced by the

joint trial as to require severance. Defendants were joined

pursuant to Fed. R. Crim. P. 8 and the propriety of this

initial joinder has not been contested. Rather, each defendant

*In the designation of issues on appeal, defendants also challenge the

validity of jury selection. They contend that the Government's striking of

several blacks from the jury panel was part of a systematic practice by the

Government to strike blacks from juries in the Western District of

Missouri. An identical contention was raised in United States v. Carter,

528 F.2d 844, 848 (8th Cir. 1975), cert. denied, US. (1976),

concerning the Government's use of jury strikes in the Western District of

Missouri in 1974. The court in Carter found that the defendant had failed

to establish that the Government's use of jury strikes in the Western

District of Missouri in 1974 constituted an impermissible practice under

Swain v. Alabama, 380 U.S. 202 (1965). In the instant case, a post-trial

hearing was held on this issue. The trial court determined that the evidence

there presented failed to show any systematic practice on the

Government's part of striking blacks from jury panels in the Western

District of Missouri in 1973, 1974 or 1975. The court further found that

there was no systematic or arbitrary striking of blacks from the jury panel

from which the jury in this case was selected. Nothing defendants have

presented on appeal convinces us that the trial court's resolution of this

issue did not rest on a firm factual and legal basis.

a os

contends th: although the initial joinder was _ proper,

prejudice resulted thereform during the joint trial, mandating

a severance under Fed. R. Crim. P. 14.

It is the general rule that persons charged in a conspiracy

should be tried together, particularly where proof of the

charges against the defendants is based upon the same

evidence and acts. United States vy. Kirk, 534 F.2d 1262,

1269 (8th Cir. 1976): United States vy. Hutchinson, 488 F.2d

484, 492 (8th Cir. 1973), cert. denied, 417 U.S. 915 (1974):

United States v. Kahn, 381 F.2d 824, 838 (7th Cir.), cert.

denied, 389 U.S. 1015 (1967). Severance will be allowed

upon a showing of real prejudice to an individual defendant.

United States vy. Hutchinson, supra, at 492. However, the

motion to sever is addressed to the discretion of the trial

court, Williams vy. United States, 416 F.2d 1064 (8th Cir.

1969), and a denial of severance is not grounds for reversal

unless clear prejudice and an abuse of discretion are shown.

Johnson yv. United States, 356 F.2d 680 (8th Cir.), cert.

denied, 385 U.S. 857 (1966). A defendant must show

something more than the mere fact that his chances for

acquittal would have been better had he been tried separately.

Williams vy. United States, supra at 1070. He must “affirma-

tively demonstrate that the joint trial prejudiced [his] right to

a fair trial.” Golliher v. United States, 362 F.2d 594, 603

(8th Cir. 1966). Thus, before the refusal to sever may be

deemed an abuse of discretion on the part of the trial court,

prejudice to a defendant’s right to a fair trial must be

established. Relying upon these principles, we now turn to

defendants’ numerous severance claims.

Muhammad contends that the denial of his motion for

severance deprived him of the exonerating testimony of his

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

Muhammad's four co-defendants testified that he had infor-

mation that might exonerate Muhammad and that he would

be willing to give that information at trial so long as no

waiver of his Fifth Amendment rights was required. At the

hearing, each co-defendant then exercised his Fifth Amend-

ment privilege and refused to divulge the nature of this

allegedly exculpatory information. The trial court declined to

sever Muhammad from the forthcoming trial on this basis.

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

mad’s behalf. Hudson and Mims expressed to the trial court

their intention to exercise their Fifth Amendment privileges if

called and they were not, therefore, called at trial to testify

on Muhammad's behalf. Muhammad argues that the denial of

his severance motion caused Hudson and Mims not to testify

in his favor and that this denial prejudiced his right to a fair

trial.

At the pretrial hearing, Muhammad supported his motion

for severance solely by the statements of his co-defendants

that they had or believed that they had information “which

may tend to exonerate’’ Muhammad. No details of the nature,

extent or materiality of this purportedly exculpatory evidence

were placed before the trial court. Nor did any of the

co-defendants, who had affirmatively stated an unwillingness

to waive their Fifth Amendment rights, specifically express a

willingness to testify in the event Muhammad was tried

separately. Severance of Muhammad would not automatically

have created an environment in which his co-defendants could

have testified without waiving their Fifth Amendment rights.

If Muhammad had been severed and tried first, his co-

defendants would have had to waive their Fifth Amendment

rights in order to testify on his behalf. United States vy.

Carella, 411 F.2d 729, 731 (2d Cir.), cert. denied, 396 US.

860 (1969). Thus, the co-defendants’ pretrial stance, that they

would not waive their Fifth Amendment rights at the

forthcoming joint trial, could not be considered equivalent to

assurances that they would testify for Muhammad at a

separate trial.

The trial court was, accordingly, asked to take the extreme

step of severing Muhammad without any knowledge of the

nature or extent of purportedly exculpatory evidence and

without any indications that co-defendants would in fact be

A oe

willing to offer such evidence in the event of severance. The

bald and conclusory assertions of Muhammad's co-defendants

that they possessed potentially exculpatory evidence did not

provide adequate grounds for pretrial severance in this

multi-defendant trial. The trial court did not abuse its

discretion in refusing to grant Muhammad’s motion for

severance.*

The fact that two co-defendants chose to testify on

Muhammad’s behalf at trial serves to vitiate any claim of

prejudice on his part as well as to highlight the purely

speculative nature of the basis on which the trial court was

asked to grant a severance. Despite their pretrial posture, that

they would only exonerate Muhammad if they could do so

without waiving their Fifth Amendment rights, Jardan and

Jackson, the central figure in this case, offered allegedly

exculpatory evidence for Muhammad at trial. Hudson and

Mims chose not to so testify, and prior to trial the court was

offered no reason to believe that they would testify in the

*We note that where an appropriate record concerning the exculpatory

evidence that would be available from a co-defendant in the event of

separate trials has been offered, some courts have isolated certain

circumstances under which severance is deemed obligatory. United States

v. Sica, 20 Crim. L. Rep. (BNA) 2170 (3d Cir. Oct. 20, 1976); United

States v. Martinez, 486 F.2d 15 (Sth Cir. 1973); United States v. Shuford,

454 F.2d 772 (4th Cir. 1971): Byrd v. Wainwright, 428 F.2d 1017 (Sth

Cir. 1970); United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). Where,

as here, the record has simply shown an unsupported contention that

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

have consistently declined to grant severance. United States v. Evans, 526

F.2d 701 (Sth cir.), cert. denied, U.S. (1976); United States v.

Ellsworth, 481 F.2d 864 (9th Cir.), cert. denied, 414 U.S. 1041 (1973):

United States v. Nakaladski, 481 F.2d 289 (Sth cir.), cert. denied, 414

U.S. 1064 (1973); United States v. Kilgore, 403 F.2d 627 (4th Cir. 1968),

cert. denied, 394 U.S. 932 (1969); United States v. Kahn, 38) F.2d 824

(7th Cir.), cert. denied, 389 U.S. 1015 (1967); United States v. Kahn, 366

F.2d 259 (2d Cir.), cert. denied, 385 U.S. 948 (1966); United States v.

Fluellen, 396 F. Supp. 1168 (E.D. Pa. 1975), aff'd, 530 F.2d 965 (3rd Cir.

1976).

10b

event of separate trials, for a grant of separate trials would

not necessarily have allowed Mims and Hudson to testify for

Muhammad without foregoing their Fifth Amendment rights.

United States vy. Carella, supra at 731; United States vy.

Frazier, 394 F.2d 258, 261 (4th Cir. 1968). While it is

impossible to ascertain the nature of the evidence that Mims

and Hudson* might have offered, we note that this is not a

case where refusal to sever denied a defendant all potentially

exculpatory evidence or the only means of attacking or

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

the record does not support a finding that severance was

mandated prior to trial or that denial of severance utlimately

prejudiced Muhammad at trial.

Muhammad, Mims, Jardan and Hudson contend that the

overwhelming evidence of Jackson’s guilt overflowed pre-

judicially onto them and resulted in convictions based upon

their assocation with him during the joint trial. The

preference for joint trials of defendants jointly indicted,

particularly where conspiracy is charged, United States vy.

Hutchinson, supra at 492, is not limited by any requirement

that the quantum of evidence of each defendant’s culpability

-*The value of any allegedly exculpatory evidence that Hudson could

have offered is questionable in light of the fact that the Government's

evidence did not connect Hudson directly to Muhammad in the criminal

scheme.

*In conjunction with this contention, defendants make the bare and

unsupported allegation that severance was necessary because of their

reliance on inconsistent defenses. In order to demonstrate an abuse of

discretion, defendants must show more than the fact that co-defendants

whose strategies were generally antagonistic were tried together. United

States v. Robinson, 432 F.2d 1348 (D.C. Cir. 1970). All that the

defendants here have shown is that each defendant relied on general

denial, except for Jackson, who claimed entrapment. The reliance of only

one of several co-defendants on an entrapment defense does not establish a

right to a severance. United States v. Eastwood, 489 F.2d 818 (Sth Cir.

1973). The trial court did not abuse its discretion in refusing to sever on

the basis of inconsistent defenses.

en ee ee ee eee |

eee en a

or ed

l1b

be equal. It is indeed hard to imagine a multiple defendant

case in which the evidence against individual defendants is

either quantitatively or qualitatively equivalent. A defendant

is not entitled to severance merely because the evidence

against a co-defendant is more damaging than the evidence

against him. United States v. DeLarosa, 450 F.2d 1057, 1065

(3d Cir. 1971), cert. denied, 405 U.S. 927 (1972). Severance

becomes necessary where the proof is such that a jury could

not be expected to compartmentalize the evidence as it relates

to separate defendants. United States v. DeLarosa, supra at

1065.

A review of the record does not persuade us that this

situation existed in the present case. Jackson was charged

with a greater number of substantive offenses than were his

co-defendants. Because the Government undertook to

establish his complicity by showing his participation in this

greater number of offenses, there was necessarily more

evidence adduced against Jackson that against his co-

defendants. The presentation of more evidence applicable to

one defendant than to his co-defendants is simply a fact of

life in multiple defendant cases. The greater amount of

evidence introduced against Jackson here was not far more

damaging than the evidence relating to his co-defendants, but

only more from a quantitative standpoint. The quantitative

inequality of evidence adduced provides no ground for a

severance. Nor does the record support a finding that the

evidence presented at trial was of such a nature that the jury

could not compartmentalize it to the particular defendant or

defendants to whom it was applicable. The cases cited by

defendants in support of this contention are largely inap-

posite, for they involve the peculiar circumstance, not present

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

groups of individuals have participated in a number of

separate and distinct conspiracies. Kotteakos vy. United States,

328 U.S. 750 (1946): United States v. Butler, 494 F.2d 1246

(10th Cir. 1974); United States v. Varelli, 407 F.2d 735 (7th

Cir. 1969).

12b

The Government’s method of presenting its evidence,

discussed below, served to carefully delineate separate events

and occurrences and thus to protect against confusion by the

jury as to the applicability of any given evidence to a

particular defendant. Each defendant was represented by his

own counsel. The limited applicability of evidence adduced to

individual defendants was clearly explained to the jury during

the progress of the trial. Moreover, a review of the jury

instructions shows that the jury was carefully instructed in a

manner that protected defendants from any improper over-

flow of evidence from one to another and there is nothing in

the record indicating that the jury was confused or failed to

follow the court's instructions.

Jackson, Jardan, Mims and Hudson contend that they were

prejudiced by the security measures in effect during the trial

which, they argue, would have been unnecessary had their

motions for severance been granted. It is their allegation that

the jury was constantly exposed to “extraordinary security

measures” throughout the trial and that this exposure created

in the jury a misimpression that defendants were dangerous

individuals. Defendants rely upon the principle that the

fundamental presumption of innocence may be weakened

when a criminal defendant is not clothed with the physical

indicia of innocence at trial. Kennedy v. Cardwell, 487 F.2d

101 (6th Cir. 1973), cert. denied, 416 U.S. 959 (1974). Thus.

where, as here, maximum security measures are taken during a

particular trial, it may be necessary to determine whether

these measures denied defendants the right to a fair trial by

depriving them of the physical indicia of innocence.

The security measures utilized at trial included the presence

of five plain clothes United States Marshals in the courtroom,

the posting of several Marshals outside the front doors of the

courtroom and the use of an electronic metal detec ‘ing device

on all spectators entering the courtroom.’ We note initially

’These measures were undertaken pursuant to a general order of the

District Court en bane filed on July 30, 1975, which required maximum

security in any case that was likely to be widely publicized and thus

attended by many persons and curiosity seekers, some of whom might be

inclined to cause disruption.

—

22S er

DARN Ute ile OS hae

13b

that under the circumstances of this case, where three of five

defendants were incarcerated during trial, several Government

witnesses were in state of federal custody and a large number

of spectators were constantly in attendance, these measures

were neither undue, United States v. Howell, 514 F.2d 710,

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

the sound discretion of the trial court. Gregory y. United

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

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

the crux of defendants’ contention, that the jury was

constantly exposed to these measures, to be unfounded. To

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

from contact with or awareness of the security measures in

effect during the course of the trial. Aside from the security

measures to which all veniremen were exposed when they

arrived at the courthouse on December 1, 1975, the jury was

not exposed to any security measures other than those

normally utilized in a case where the jury is sequestered.”

Thus, not only were the security measures utilized here

appropriate under the circumstances and well within the

discretion of the trial court, Gregory vy. United States, supra

at 205, but they were implemented in a manner which did

®The jurors entered and left both the courthouse and courtroom

through back entrances, thus avoiding contact with the security measures

in effect at the entrances to the building and courtroom. The United

States Marshals in the courtroom were nonuniformed.

14b

not deprive defendants of the physical indicia of innocence to

which they were entitled.’

Mims, Jardan, Jackson and Hudson «contend that they

should have been granted separate trials because of the

prejudice they suffered in the eyes of the largely Christian

jury as a result of the introduction into evidence by

Muhammad of a video-tape critical of Christians. A major part

of Muhammad’s defense consisted of evidence of his public

Opposition, as a religious leader, to the use of narcotics. As

part of this evidence, videotaped excerpts of five of

Muhammad's sermons were played for the jury. Prior to their

introduction, Muhammad's counsel advised the court that the

tapes in question related to Muhammad’s position on narcotics

and a witness who had chosen the tapes testified that this was

their subject matter.

On the fifth tape played, Muhammad denounced Christians

as sinners and hypocrites. At the conclusion of this tape,

counsel for Mims moved for a mistrial on the grounds that

the content of the tape had offended the jury, composed

mostly of Christians, and thus prejudiced his client. The trial

court immediately charged the jury that the last tape was

irrelevant to any issue in the case and instructed that it be

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

woman juror had seen defendants in jail garb and handcuffs in the

courthouse parking lot as some point during the course of the trial.

Questioning revealed that Jardan was not sure whether the woman was a

juror or security person. Moreover, none of Jardan’s co-defendant’s

corroborated his allegation and it was not brought to the trial court's

attention until after the conclusion of the trial. Assuming arguendo that

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

uniforms and handcuffs and that this incident is now cognizable on appeal,

we find that no prejudice has been shown to have resulted. United States

v. Leach, 429 F.2d 956, 962 (8th Cir. 1970), cert. denied, 402 U.S. 986

(1971). Unlike the situation where a defendant is tried in jail garb, Estelle

v. Williams, 425 U.S. 501 (1976), far less danger of prejudice inheres in a

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

and outside the courtroom.

1Sb «

disregarded. After a short recess, the court again instructed ~

the jury to disregard the last tape, stating that the tape had

been offered by Muhammad alone “and not by anyone else.

The playing of this videotape interjected a brief but

unfortunate interlude of irrelevance into the trial. We note, as

did the trial court, that there was.no reference in the

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

indication that «they personally endorsed the views expressed

in the sermon. We are convinced that the trial court's

immediate and firm curative instructions served to prevent

any prejudicial effect on Muhammad's co-defendants.°

Mims, Jardan and Hudson moved for continuances on

December 1, 1975, the “date set. for<the commencement of

trial. Muhammad and Jackson, who were satisfied with the

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

Hudson contend that the defendants’ disparate positions on

the desirability of a continuance mandated Severances. We

find this contention to be lacking in merit. A motion for a

continuance is addressed to the sound discretion of the trial

court. United States v. Webb, 533 F.2d 391, 395 (8th Cir.

1976): Kansas Citv Star Co. v. United States, 240 F.2d 643,

651 (8th Cir.), cert. denied, 354 U.S. 923 (1957). A review of

the record shows that the trial court did not abuse its

discretion in denying the motion for continuance.

"Closely allied to defendants’ contentions concerning the pvc apt

videotape are allegations that severance should have been a . -

Muhammad's co-defendants were prejudiced by the religious underton |

of the trial. It appears that defendants base this ae bly

assumpaion, unsupported by any evidence, that the rc and re

so unpopular that to be associated with it Is eutomstical y ~~ 7

Even if we assume arguendo that the present trial was perva - -

religious “undertones” and that the Black Muslim faith is ~— : :

defendants have failed to show that the trial court abused its — ms m4

refusing to grant motions for severance on this basis. The un — “

impression created by a defendant's identification with an = . -

group does not require severance. United States eae, - a

1057. 1065 (3d Cir. 1971), cert. denied, 405 U.S. 927 (1972).

16b

All defendants contend that the manner in which the

testimony of Special Agent Vaughan was elicited at trial

prejudiced them to a degree requiring reversal.'' Agent

Vaughan was a key Government witness, who was personally

involved in many of the narcotics sales at issue. Rather than

placing Agent Vaughan on the witness stand only once, the

Government proposed to the trial court a presentation of

Agent Vaughan’s testimony whereby he would be recalled

from time to time in order to testify about individual

transactions in chronological order. Despite defendants’ objec-

tions, the trial court agreed to permit Agent Vaughan to be

recalled a number of times to testify chronologically. A

special system of cross-examination was devised by the trial

court to insure that the defendants’ rights under the Sixth

Amendment would not be diminished in any way by this

somewhat novel presentation of evidence. After each appear-

ance, Agent Vaughan was subject to cross-examination on the

subject matter of that appearance as well as to cross-

examination on the issue of credibility. On his final

appearance, Agent Vaughan was subject to full cross-exami-

nation covering all his trial testimony. Thus, the chronological

presentation of Agent Vaughan’s testimony provided each

defendant with numerous opportunities for cross-examination

as to both credibility and the subject matter of his testimony.

The mode and order of interrogation and presentation of

evidence are matters placed within the discretion of the trial

court. Brinlee vy. United States, 496 F.2d 351, 355 (8th Cir.),

cert. denied, 419 U.S. 878 (1974): Fed. R. Ev. 611(a). A

review of the record shows that the manner in which Agent

Vaughan was called to testify lent a praiseworthy degree of

''Hudson and Jardan raise this contention as an aspect of their

severance contention. Mims, Muhammad and Jackson do not tie their

claim of prejudice on this basis to the severance issue. Whether the matter

of Vaughan’s testimony is deemed an aspect of trial management or a part

of the question of severance, it must be analyzed in terms of its impact on

defendants’ rights to a fair trial.

ee ea

17b

order to this complicated trial. Clearly, a desire for the

orderly presentation of evidence does not outweigh a

defendant's right to a fair trial. We find nothing in the record

to indicate, however, that the chronological presentation of

Agent Vaughan’s testimony diminished defendants’ rights to

cross-examination or prejudiced their rights to a fair trial in

any way. The trial court carefully exercised its discretion in

managing the presentation of Vaughan’s testimony in such a

way as to fully protect defendants’ rights.'* There was no

abuse of discretion in permitting the Government to present

its evidence chronologically through the repeated recall of

Agent Vaughan as a witness. In fact, this procedure is

commended as one way to clearly present an organized

factual recital in an extended conspiracy trial.

Hudson, Jardan and Mims contend that severance should

have been granted because of the prejudice they suffered as a

result of heated colloquy between counsel for Muhammad and

Jackson and the prosecutor. The record does reveal a certain,

not uncommon, amount of professional enmity between

counsel for Muhammad and Jackson and Government counsel.

The purportedly prejudicial colloquy cited by defendants as

grounds for severance did not occur within the hearing of the

jury, however, for in its management of the trial the court

required that objections be made at the bench and out of the

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

protect the jury from exposure to colloquy between counsel

that the jury was excused for a brief recess during an

objection by Government counsel to defense cross-exami-

nation of Agent Vaughan. Contrary to defendants’ con-

tentions, the jury was not exposed to heated colloquy

between Muhammad's and Jackson’s counsel and_ the

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

could become so piecemeal as to confuse rather than clarify matters. Thus,

when on one occasion the Government proposed to recall Vaughan several

times to establish a single transaction, the court required a consolidation

of all his testimony with respect to a given date and count.

18b

prosecutor. The jury’s mere observation of various defense

counsel approaching the bench from time to time in order to

voice Objections can hardly be deemed equivalent to the jury’s

exposure to colloquy between counsel prejudicial to co-

defendants. Accordingly, severance was not mandated on this

basis.

Hudson raises two severance contentions in which he is not

joined by other defendants. First, Hudson contends that part

of Muhammad's cross-examination of Agent Vaughan pre-

judiced him and required severance. We have carefully

reviewed the cross-examination which Hudson now challenges.

It consists of a very brief series of questions relating to

surveillance of Hudson’s arrival in El Paso. Agent Vaughan did

not purport to answer these questions on the basis of

first-hand knowledge. He specifically qualified his responses in

terms of what he “imagined” had happened in El Paso.

Moreover, his responses were consistent with previous testi-

mony from other witnesses and did not conflict in any way

with Hudson's defense, which contained no denial of the trip

to El Paso. Thus, we find the cross-examination challenged by

Hudson to have had no prejudicial effect upon him.

Secondly, Hudson contends that even if the individual

reasons he cites for severance are insufficient, they cumulate

to a level of prejudice that mandates severance. The cases

Hudson relies upon in support of this contention stand simply

for the principle that a trial judge has a continuing duty to

grant severance if prejudice appears. The close scrutiny which

we have directed to the record in this case in weighing the

myriad severance contentions of Hudson and his co-

defendants convinces us that the trial court admirably

exercised its continuing duty to prevent prejudice to

individual defendants as a result of the joint trial and that

prejudice requiring severance did not materialize at trial. Thus,

the court did not abuse its discretion in refusing to grant

severance on the basis of any of the individual grounds

advanced by defendants or on the basis of the combined

effect of these grounds.

19b

Hudson, Mims and Muhammad attack the sufficiency of the

evidence supporting their convictions. Certam well known

principles apply to the appellate review of the sufficiency of

evidence underlying jury verdicts of guilty. It is our duty to

view the evidence in the light most favorable to the verdict

rendered. Glasser vy. United States, 315 U.S. 60, 80 (1942).

We must accept as established all reasonable inferences from

the evidence that tend to support the jury’s verdict. United

States v. Overshon, 494 F.2d 894 (8th Cir.), cert. denied, 419

U.S. 853 (1974). It is the general rule that the evidence need

not “exclude every reasonable hypothesis except that of guilt,

but simply that it be sufficient to convince the jury beyond a

reasonable doubt that the defendant is guilty.” United States

vy. Shahane, $17 F.2d 1173, 1177 (8th Cir.), cert. denied, 423

U.S. 893 (1975). Furthermore, since circumstantial evidence is

intrinsically as probative as direct evidence, Holland v. United

States, 348 U.S. 121, 140 (1954), this standard also applies

where a conviction rests entirely on circumstantial evidence.

United States v. Carlson, No. 76-1363, slip op. at 22 (8th Cir.

Dec. 17, 1976). Relying upon these familiar principles, we

will now address defendants’ attacks upon the sufficiency of

the evidence supporting their convictions.

The threshold question is whether the existence of a

conspiracy was established. “The offense of conspiracy

consists of an agreement between the conspirators to effect

the object of the conspiracy.” United States v. Skillman 422

F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833 (1971).

The agreement need not be express or formal. It may be

established by circumstantial evidence. United States.

Hutchinson, supra at 490; Koolish vy. United States, 340 F.2d

$13, 523-24 (8th Cir.), cert. denied, 381 U.S. 951 (1965). A

review of the record here reveals abundant evidence from

which the jury could find the existence of a conspiracy to

distribute heroin and cocaine. The tacts of this case have

already been recited and need not be repeated in detail here.

20b

It will suffice to say that the testimony of Agent Vaughan,

Juan Pablo Garcia and Anderson Jackson and the evidence

derived from extensive surveillance and from court-authorized

wiretaps was more than sufficient to establish the nature and

existence of a well organized and adroitly conducted

conspiracy to distribute heroin and cocaine.

Hudson, who was charged only with conspiracy, contends

that evidence of his involvement therein was legally insuf-

ficient. The principal evidence probative of his participation in

the conspiracy was established by the testimony of Juan

Pablo Garcia, a co-defendant who had pled guilty prior to

trial. After the partial credit transaction between Garcia and

Jardan for one kilogram of heroin went sour, Garcia

demanded the return of the narcotics. Jardan informed Garcia

that the heroin would be returned to him in El Paso, Texas,

by a man with a missing finger.'? Following this telephone

conversation, Hudson took a commercial flight to El Paso.

Upon his arrival at Garcia’s motel room in El Paso, Garcia

asked Hudson “if he had the stuff with him.” Hudson replied

affirmatively, removed a package containing heroin from his

suitcase and handed it to Garcia. Garcia immediately

perceived that the package did not contain the original full

kilogram of heroin and confronted Hudson with the obvious

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

whole kilo.” Hudson replied: “Well, | don’t know anything

about it. They just gave me this to give back to you.” Hudson

then offered to call Jardan in Kansas City in order to find out

what was going on. He made a telephone call during which

first he and then Garcia talked to Jardan. Garcia expressed his

anger at the “rip-off” to Jardan, who denied any shortage.

Upon Garcia’s announcement that he was going to leave,

Hudson asked for the money. Garcia responded that he could

‘At trial, Hudson was required to display his left hand, which has a

missing index finger, to the jury. Garcia also identified Hudson at trial as

the man who returned the heroin to him in El Paso.

21b

not give the money back as a result of the shortage. Garcia

then left with the narcotics and Hudson subsequently

returned to Kansas City.

Hudson does not deny his participation in the return of the

heroin to Garcia in El Paso. He contends, however, that he

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

courier contained narcotics and that consequently the

requisite element of his knowledge of the conspiracy was not

established.'* In support of this contention, he cites his

response of “I don’t know anything about it” to Garcia's

allegation that the kilo of heroin was short. The jury could

have reasonably inferred that this disclaimer applied to

knowledge of the shortage, which was the topic of their

conversation, and not to the identity of the substance that

was delivered by Hudson. Hudson had not, after all,

disclaimed knowledge when he responded affirmatively to

Garcia’s initial inquiry as to whether he had “the stuff,” a

commonly used name for heroin. Also, Hudson’s instruction

to recover the $7,000 partial payment for the drugs, coupled

with all the circumstances surrounding his trip to El Paso,

conveyed knowledge of illicit activity. Knowledge may be

inferred by the jury from the circumstances, acts and conduct

of the parties. Jacobs v. United States, 395 F.2d 469, 472

(8th Cir. 1968). There was sufficient evidence establishing

Hudson’s knowing role as a courier of narcotics to convince

the jury beyond a reasonable doubt that he was guilty of

participating in a conspiracy to distribute heroin.

'SHudson relies chiefly on United States v. Amato, 495 F.2d 545 (Sth

Cir.), cert. denied, 419 U.S. 1013 (1974) and Miller v. United States, 382

F.2d 583 (9th Cir. 1967), cert. denied, 390 U.S. 984 (1968), in support of

his contention that knowledge of the conspiracy was not established. The

holdings in Amato and Miller that knowledge had not been established

devolved from findings that there was an insufficient factual basis from

which knowledge could be inferred. We find the factual basis in the

present case, which shows Hudson to have been a cog in a finely tuned

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

inference that Hudson knowingly participated in the illegal conspiracy.

22b

Mims was convicted of participation in the conspiracy to

distribute narcotics and of two substantive counts of

which consisted mainly of circumstantial evidence, was

derived from testimony of a co-conspirator, Juan Pablo

Garcia, surveillance by Government agents and interception of

certain of Mims telephone conversations by means of

court-authorized wiretaps. It is axiomatic that a conviction for

conspiracy may be supported by purely circumstantial

evidence. In fact, this court has iong- recognized that “[a]

conspiracy is rarely susceptible of proof by direct evidence. It

may be adduced from the conduct of the parties and the

attending circumstances.” Rizzo v. United States, 304 F.2d

810, 825 (8th Cir.), cert. denied, 371 U.S. 890 (1962); Goode

v. United States, 58 F.2d 105, 107 (8th Cir. 1932). Similarly,

because circumstantial evidence is intrinsically as probative as

direct evidence, Holland v. United States, supra, it may clearly

be the sole basis for convictions for substantive offenses. See,

e.g., United States v. Diggs, 527 F.2d 509, 512 (8th Cir.

1975). While Mims does not contest these well-settled

principles, his attack on the sufficiency of the evidence

nevertheless consists of little more than an attempt to belittle

the largely circumstantial nature of the Government's case.

The circumstantial evidence against Mims was, however,

substantial and the jury could reasonably have concluded that

Mims participated in two substantive distributions of heroin

which furthered the criminal conspiracy charged. Insofar as

Count VIIi, the illegal distribution of 28 grams of heroin by

Mims and Jackson on May 13, 1975, is concerned, the record

reveals the following salient evidence of Mims’ complicity. On

May 9, 1975, a telephone conversation between Jackson and

Mims was intercepted in which Jackson informed Mims that

he had dropped off some suits'S which “they liked.” On May

'SAgent Vaughan testified that in narcotics deals with Jackson the term

“suit” was sometimes used to refer to narcotics. The use of such

terminology, often designated a “laundry code,” is not unique to this case.

See United States v. Manfredi, 488 F.2d 588, 592 (2d Cir. 1973), cert.

denied, 417 U.S. 936 (1974).

23b

13, Agent Vaughan arranged to buy one ounce of heroin from

Jackson. Approximately fifteen minutes after this purchase

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

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

immediately. Surveillance revealed that Mims then drove to

Jackson’s home, and that shortly thereafter Jackson went

from his home to Agent Vaughan’s apartment and sold him

one ounce of heroin. The jury could reasonably infer that

Mims was instrumental in this distribution of heroin to Agent

Vaughan on May 13.

Count X involves the distribution of 138 grams of heroin

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

showed that Jackson agreed to sell Agent Vaughan seven

ounces of heroin on that date. After telling Vaughan that he

was still in the process of putting things together, Jackson

met with Mims and Muhammad at Muhammad's residence.

Mims and Jackson proceeded to drive each other's cars from

Muhammad’s residence to a motel parking lot, where they

talked and then switched cars. Shortly after this meeting and

car exchange, Jackson delivered five of the seven ounces of

heroin agreed upon to Agent Vaughan. He promised to return

with the remaining two ounces as quickly as possible. Jackson

then returned to the motel parking lot and met Mims again.

After a conversation and another exchange of cars wich Mims,

Jackson drove Mims car to the residence of Muhammad.

Mims and Jackson then returned to the motel parking lot for

another rendezvous and car exchange. Immediately thereafter

Jackson delivered the remaining two ounces of heroin to

Agent Vaughan. He then returned directly to the motel

parking lot where he again spoke with Mims. We believe that

as to Count X, the jury could reasonably have concluded that

Mims participated in the distribution of seven ounces of

heroin to Agent Vaughan on June 5, 1975. The evidence in

this case, although circumstantial, is sufficient to have

convinced the jury beyond a reasonable doubt that Mims was

guilty not only of Counts VIII and X but also of the

conspiracy to distribute narcotics for which these substantive

24b

offenses served as overt acts. In addition, there is direct

evidence of Mims’ participation in the conspiracy. Garcia

testified that Mims was present when he and Jardan

negotiated the deal in El Paso for the purchase of one

kilogram of heroin.

Muhammad was convicted of engaging in the conspiracy to

distribute narcotics and of two _ substantive counts of

distribution of heroin. Count X charged Muhammad, Jackson

and Mims with the distribution of seven ounces of heroin to

Agent Vaughan on June 5, 1975. Some details of this

transaction have been set forth above in connection with

Mims attack on the sufficiency of the evidence. Insofar as

Muhammad is concerned, the Government's evidence estab-

lished that after Jackson had agreed to sell Vaughan seven

ounces of heroin on June 5 and had described himself to

Vaughan as “still putting things together,” he met with

Muhammad and Mims at the residence of Muhammad.

Jackson then delivered only five of the seven ounces of heroin

due Agent Vaughan, agreeing to return with the remainder as

quickly as possible. Jackson drove to Muhammad’s residence

shortly after leaving Agent Vaughan’s apartment and sub-

sequently delivered the remaining two ounces to Agent

Vaughan. Upon completion of the sale, Jackson returned to

Muhammad's residence. Based on this evidence, the jury could

reasonably infer that Muhammad was instrumental in this

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

Count XV charged Muhammad and Jackson with the

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

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

Jackson arranged to meet later in the day to consummate a

sale of heroin. Surveillance revealed that at about 9:45 a.m.,

Muhammad drove his car in front of Jackson’s residence,

sounded the horn and then drove on. Several hours later

Muhammad returned to and entered Jackson’s residence,

where he stayed for a short period of time. After Muham-

mad’s departure, Jackson went from his residence to Agent

Vaughan’s apartment and there sold him approximately

25b

fourteen grams of heroin for $1,600. Jackson drove directly

to Muhammad’s residence after the sale and conferred with

Muhammad for a few minutes. Muhammad was arrested

shortly after this meeting with Jackson. The serial numbers of

each of the bills used by Agent Vaughan to pay Jackson for

the fourteen grams of heroin had been pre-recorded. A search

of Muhammad’s person following his arrest produced $1,000

in pre-recorded bills. The other $600 from the sale was found

on Jackson. The $1,000/$600 split of the proceeds between

Muhammad and Jackson approximated the 60/40 supplier-

seller split, discussed below, used by James Jackson when his

brother sold narcotics for him, except that in this instance

Muhammad received the 60% supplier's share. From the basis

of circumstantial and direct evidence presented, the jury could

reasonably infer that Muhammad participated in the July 23,

1975, sale of heroin to Agent Vaughan.'®

The jury was presented with sufficient evidence to have

convinced it beyond a reasonable doubt that Muhammad was

guilty of these two substantive narcotics offenses, which were

also overt acfs in furtherance of the conspiracy to distribute

narcotics. The Government's evidence of Muhammad's partici-

pation in the conspiracy was not limited to proof of these

two acts, however. There was also abundant evidence of

frequent contacts between Muhammad and Jackson during

negotiations by Jackson for sales of narcotics and preceding

and following these sales. The details of these contacts, which

were not limited to June 5 and July 23, have been set forth

previously and need not be repeated here. Finally, a

We note that Muhammad offered an exculpatory explanation of his

possession of the money as well as of certain other facts underlying the

indictment. These explanations raised a question of credibility, the

resolution of which rested solely in the province of the jury. Petschel v.

United States, 369 F.2d 769, 711 (8th Cir. 1966). The jury was not

required to believe Muhammad's story. United States v. Miller, No.

76-1584 (8th Cir. Nov. 4, 1976); United States v. Ordones, 469 F.2d 70

(9th Cir. 1972).

26b

co-conspirator’s statement implicating Muhammad in_ the

conspiracy was introduced into evidence by the Government.

Anderson Jackson, the brother of defendant James Jackson,

testified that James, for whom he was distributing heroin, had

told him that Muhammad was involved in selling drugs.

The rule is well established that a statement by a

co-conspirator made during the course and in furtherance of a

conspiracy is not hearsay and may be admitted against the

declarant and his co-conspirators so long as a conspiracy is

established by independent evidence. United States v. Kelley,

526 F.2d 615, 618 (8th Cir. 1975), cert. denied, 424 U.S.

971 (1976); United States v. Frol, 518 F.2d 1134, 1136 (8th

Cir. 1975). There is no requirement that the independent

evidence of conspiracy be introduced prior to the intro-

duction of the co-conspirator’s statement. The order of proof

is a matter left to the discretion of the trial court. United

States vy. Kelley, supra; Brinlee v. United States, 496 F.2d

351, 354 (8th Cir.), cert. denied, 419 U.S. 878 (1974).

Accordingly, the co-conspirator’s statement may be con-

ditionally admitted subject to being “‘connected up” subse-

quently by independent proof of conspiracy, which may be

totally circumstantial. United States v. Sanders, 463 F.2d

1086, 1088 (8th Cir. 1972). This was the manner in which

James Jackson's statement about Muhammad’s involvement in

the sale of narcotics was admitted.

The record in the present case is replete with independent

proof of conspiracy sufficient to “connect up” James

Jackson’s statement as to Muhammad’s involvement in

narcotics transactions. Moreover. prior.to Anderson Jackson's

testimony, the trial court instructed the jury with extreme

care and at considerable length that a conspirator’s statement

could be considered against his co-defendants only if their

participation in the conspiracy was established by independent

evidence. A similar instruction was repeated at the close of

the trial. Thus, we find no error in the manner in which

Anderson Jackson’s testimony was admitted.

27b

Not every extra-judicial statement by a conspirator is

admissible against his co-conspirators, however, no matter how

abundant the independent evidence of a conspiracy. In

addition, under the Federal Rules of Evidence, the statement

must have been made during the course of the conspiracy and

in furtherance thereof. Fed. R. Ev. 801 (d)(2)(E). There is no

general agreement as to the wisdom of the “in furtherance”

requirement. The drafters of the Model Code of Evidence

eliminated this requirement. Model Code of Evidence Rule

508 (1942). Following strenuous debate, it was retained by

Congress in the Federal Rules of Evidence.'’ The fact that the

federal courts have not applied the “in furtherance” require-

ment uniformly reflects the long-standing divergence of

opinion over the validity of this requirement. Interpretations

range from its strict application, see United States y.

Birnbaum, 337 F.2d 490 (2d Cir. 1964), to its reduction to a

concept of relevancy, see I/nternational Indemnity Co. y.

Lehman, 28 F.2d 1 (7th Cir.), cert. denied, 278 U.S. 648

(1928). The approach in this circuit has been to retain the “in

furtherance” requirement, while acknowledging a tendency on

the part of commentators to construe this provision broadly.

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

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

denied, U.S. _._ (1976): United States v. Overshon,

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

(1974).

We must, therefore, determine whether the statement of

James Jackson introduced into evidence through the testi-

mony of Anderson Jackson was “in furtherance” of the

conspiracy to distribute narcotics. Anderson testified that in

December, 1974, he had begun to sell narcotics supplied to

'"See Hearings on the Proposed Rules of L:vidence Before the Special

Subcommittee on Reform of Federal Criminal Laws of the House

Committee on the Judiciary , 941d Cong., Ist Sess., House Hearings Supp.

at 56, 58, 59 (1973), reported in Am. Jur 2d Federal Rules of tvidence,

Appendix 4 at 314, 316, 317 (1975).

28b

him by his brother James, who took 60% of the proceeds and

left 40% for Anderson. In February, 1975, Anderson was

arrested for anon-narcotics offense and incarcerated for a few

days. Upgn his release, he renewed his narcotics selling

activities. In early March, Anderson entered a hospital in

order to receive treatment for his narcotics habit. He

recommenced using and selling narcotics shortly after his

release. In mid-March, 1975, Anderson was again incarcerated

for a non-narcotics offense. He remained in jail for approxi-

mately two weeks. It was during a visit with Anderson shortly

after his release from jail that James made the statement

implicating Muhammad in the narcotics conspiracy. Anderson

testified that:

{James} told me he got demoted from captain in the

Muslims because he was selling drugs and that Nathaniel

Muhammad was involved in selling drugs; that he

demoted him from captain where it would look good for

the Muslims in case something came down.

It is reasonable to conclude that this statement was made

in an effort by James to again enlist Anderson as a seller of

narcotics for the conspiracy. Anderson had previously re-

turned to this occupation following release from each

incarceration or institutionalization. Thus, after a longer than

usual stay in jail, it would be reasonable for James to want to

assure Anderson’s continued participation in the conspiracy

and to apprise him of developments that Anderson might be

unaware of because of his incarceration. Cf. United States vy.

Overshon, supra. Thus, although it is a close question, we

believe that James Jackson’s statement to Anderson con-

cerning Muhammad’s involvement in the sale of narcotics was

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

the course of the conspiracy and was “connected up” by

sufficient independent evidence of conspiracy, this statement

was properly admitted under Rule 801(d)(2)(E). We conclude

that the Government’s evidence was sufficient to have

convinced the jury beyond a reasonable doubt that Muham-

mad was guilty of conspiring to distribute narcotics and of

participating in two sales of heroin.

29b

The Government introduced into evidence eleven taped

conversations intercepted pursuant to three court orders

authorizing the interception of wire communications. All

defendants moved unsuccessfully to suppress the introduction

of these conversations into evidence. On appeal, however,

only Hudson and Jardan have asserted error in the trial

court’s denial of their motions to suppress. They challenge the

legality of the wiretaps on two grounds. First, Jardan

contends that pursuant to 18 U.S.C. §2518(1)(b)(iv) (1970)

and 18 U.S.C. §2518(4)(a)(1970) he should have been named

as a party whose communications would be intercepted by

the wiretaps authorized on May 9, 1975, and May 29, 1975.

Hudson makes an identical contention as to the wiretap

authorized on June 24, 1975. Secondly, both Jardan and

Hudson contend that the wiretaps were improper under 18

U.S.C. §2518(3),(c) (1970) because normal investigative

techniques would have sufficed under the circumstances of

this case.

Naming Requirements

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

an order authorizing the interception of a wire communica-

tion include “the identity of the person, if known, commit-

ting the offense and whose communications are to be

intercepted.” Section 2518(4)(a) requires that the order of

authorization specify “the identity of the person, if known,

whose communications are to be intercepted.” Jardan chal-

lenges WT-1975-1, May 9, 1975, and WT-1975-2, May 29,

1975, on the grounds that he was not named in the

applications or authorization orders as a person whose

communications were to be intercepted, despite the fact that

at the time of the applications the Government allegedly had

knowledge of him which required his identification under

§ §2518(1)(b)iv) and 2518(4)(a).

30b

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

telephone of James Jackson, sought authorization to intercept

communications of Jackson, Muhammad and “others as yet

unknown” concerning various narcotics offenses. Jardan’s

name was not mentioned in the application or in the order

authorizing WT-1975-1. The May 29, 1975, application for

WT-1975-2, a tap on the telephone of Spencer Mims, sought

authorization to intercept communications of Mims, Jackson

and “others as yet unknown” concerning various narcotics

offenses. Jardan was not identified as a person whose

communications were to be intercepted. The application did

state, however, as did the order authorizing the wiretap, that

there was probable cause to believe that Mims, Jackson,

Muhammad and Jardan, inter alia, were involved in com-

mitting narcotics offenses. Conversations by Jardan were

intercepted pursuant to both wiretaps.

Hudson's contention involves a third wiretap not challenged

by Jardan, WT-1975-3. The June 24, 1975, application for

WT-1975-3, taps on the telephones of Spencer Mims and

Lushrie Jardan, sought authorization to intercept communica-

tions of Muhammad, Mims, Jardan, Jackson and “others as

yet unknown” concerning various narcotics offenses. Hudson

was not identified as a person whose communications were to

be intercepted. The application, was well as the order

authorizing the wiretap, did state, however, that there was

probable cause to believe that Mims, Jackson, Muhammad,

Jardan and Hudson, inter alia, were involved in_ the

commission of narcotics offenses. Conversations of Hudson

were intercepted on WT-1975-3.

Jardan and Hudson contend that the Government had

probable cause to name them in its applications pursuant to

§2518(1)(b\iv) as known individuals whose communications

were to be intercepted. Accordingly, they argue that they

should have been so designated in the wiretap orders under

§2518(4)(a) and that their non-identification in the applica-

tions and orders required suppression of the conversations

intercepted. We note that since it is only through reference to

31b

the Government’s applications that the authorizing judge can

be expected to learn of the target individuals, the identifica-

tion requirements of § §2518(1)(b)(iv) and 2518(4)(a) have

been deemed to be of equal breadth. United States v. Kahn,

415 U.S. 143, 152 (1974).

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

tion, the Government specify “the identity of the person, if

known, committing the offense and whose communications

are to be intercepted.” This provision has been interpreted to

require that the Government name an individual in an

application if it has probable cause to believe (1) that the

individual is engaged in the criminal activity under investiga-

tion and (2) that the individual’s conversations will be

intercepted over the target telephone.'* United States ».

Kahn, supra; see United States v. Donovan, 45 U.S.L.W. 4115,

4118 (U.S. Jan. 18, 1977). This latter requirement applies to

persons placing calls to or from the target telephone. United

States v. Donovan, supra at 4118.

'’We note that United States v. Donovan, supra, appears to contain two

Slightly divergent interpretations of the naming requirement of

§2518(1 Kb\Miv). The Court initially cites United States v. Kahn, 415 US.

143 (1974) for the proposition that §2518(1)(b\iv) requires probable

cause to believe that the individual is engaged in the criminal activity

under investigation and probable cause to believe that the individual's

conversations will be intercepted over the target telephone. United States

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

application must name an individual if the Government “has probable

cause to believe that the individual is engaged in the criminal activity

under investigation and expects to intercept the individual's conversations

over the target telephone.”’ Assuming that probable cause to believe differs

from expectation, we do not believe that the Supreme Court intended to

depart from the probable cause standard set forth in United States v.

Kahn, supra. This interpretation is supported by the partial dissent of

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

that an application for a wiretap “must name all individuals whom the

Government has probable cause to believe are committing the offense

being investigated and will be overheard.” United States v. Donovan, supra

at 41 24.

32b

Jardan and Hudson each allege that the Government failed

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

cause to do so. Even if we assume arguendo that the

Government did have probable cause to believe that Hudson

and Jardan were engaged in the criminal activity under

investigation, we do not believe that the record sustains a

finding that there was probable cause to believe that their

communications would be intercepted over the target tele-

phone. A close reading of the record reveals that the only

knowledge that can fairly be attributed to the Government

related to Hudson’s and Jardan’s mere association with

persons under investigation. We find knowledge of mere

association insufficient, under the facts of this case, to

support the conclusion that the Government had probable

cause to believe that Hudson and Jardan would be intercepted

over the target telephone.

The Government lacked probable cause to believe that

Hudson and Jardan were persons “committing the offense and

whose communications [would] be intercepted” and did not,

therefore, violate §2518(1)(b)(iv) in omitting Hudson's and

Jardan’s names from the wiretap applications challenged.

Thus, the wiretap orders based on these applications were

valid and in conformance with §2518(4)(a) and the trial

court did not err in refusing to suppress the conversations

intercepted pursuant to these wiretaps.'’

We note that even had the Government possessed probable cause to

believe Jardan and Hudson were engaged in the criminal activity under

investigation and that they would be intercepted on the target telephones,

suppression would not be mandated here. There is no suggestion that

Government agents knowingly failed to identify Jardan and Hudson in

order to keep relevant information from the District Court. Accordingly,

because identification in an intercept application of all those likely to be

overheard in incriminating conversations does not play a “substantive

role” with respect to judicial authorization of intercept orders and thus

does not impose a limitation on the use of intercept proceedings,

suppression is not warranted under §2518(10(ai). United States v.

Donovan, supra at 4121-22.

33b

Utilization of Normal Investigative

Techniques

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

order authorizing the interception of a wire communication

include ‘“‘a full and complete statement as to whether or not

other investigative procedures have been tried and failed or

why they reasonably appear to be unlikely to succeed if tried

or to be too dangerous.” 18 U.S.C. §2518(3)(c) requires that

the judge to whom the wiretap application is directed

authorize a wiretap only if he determines on the basis of the

facts submitted by the applicant that “normal investigative

procedures have been tried and have failed or reasonably

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

dangerous.” Jardan and Hudson both contend that the

applications for the wiretaps at issue here were deficient

under §2518(1)(c) and that there was, therefore, an insutf-

ficient basis for their authorization under §2518(3)\(c).

The Supreme Court has stated that the language of

§ §2518(1)(c) and 2518(3)(c) “is simply designed to assure

that wiretapping is not resorted to in situations where

traditional investigative techniques would suffice to expose

the crime.”” United States vy. Kahn, 415 U.S. 143, 153 n. 12

(1974). In enacting Title IIl, Congress did not require the

exhaustion of “specific” or “all possible’ investigative

techniques before wiretap orders could issue. United States v.

Smith, 519 F.2d 516, 518 (9th Cir. 1975). Congress

prohibited wiretapping only when normal investigative techni-

ques were likely to succeed and not too dangerous, United

States v. Daly, 535 F.2d 434, 438 (8th Cir. 1976), and

“[mlerely because a normal investigative technique is theo-

retically possible, it does not follow that it is likely.” S. Rep.

No. 90-1097, 90th Cong., 2d Sess. . reprinted ir [1968]

U.S. Code Cong. and Admin. News, 2190. Thus,

§§2518(1)(c) and 2518(3)(c) have been deemed to be

designed only to ensure that wiretapping is not “routinely

employed as the initial step in criminal investigation.” United

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

34b

The issue of whether the provisions of § §2518(1)(c) and

2518(3\(c) heve been complied with must be determined by

viewing the facts contained in the Government’s sworn

applications and supporting affidavits. These applications and

affidavits must be tested in a “practical and commonsense

fashion.” United States v. Brick, 502 F.2d 219, 224 n. 14

(8th Cir. 1974): see United States v. Kirk, 534 F.2d 1262,

1274 (8th Cir. 1976). Moreover, as in other suppression

matters, the judge to whom the wiretap application is made is

entrusted with broad discretion. United States v. Daly, supra.

In the present case, each application for a wiretap was

supported by an affidavit of Agent Vaughan, the key

investigative figure involved. We have carefully reviewed the

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

the affidavits of Agent Vaughan that accompany them. These

affidavits establish unequivocally that traditional investigative

techniques had been used extensively before authorization for

wiretaps was sought. Agent Vaughan’s affidavits also detail the

reasons why these normal investigative techniques had failed

and were likely to continue to fail. Moreover, the affidavits

cited specific instances of failures which established that the

utilization of normal techniques was not only unlikely to

succeed but also likely to create risks of unreasonable danger.

We conclude that the applications for the wiretaps at issue

here were sufficient under §2518(1)(c) and that the wiretap

authorization orders met the requirement of §2518(3)\(c).

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

motions to suppress the communications intercepted pursuant

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

Judgment affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

35b

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

76-1105 | September Term, 1976

The United States, )

Appellee, )

VS. ) Appeal from the United States

) District Court for the Western

Spencer Mims, ) District of Missouri

Appellant. )

On motion of counsel for appellant, it is now here ordered

that appellant may have to and including February 28, 1977, in

which to serve and file petition for rehearing.

February 22, 1977

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

76-1105 September Term, 1976

The United States,

)

“ aor. | Appeal from the United States

) District Court for the Western

Spencer Mims, ) District of Missouri

Appellant. )

The Court having considered petition for rehearing en banc

filed by counsel for appellant and, being fully advised in the

premises, it is ordered that the petition for rehearing en banc

be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

March 10, 1977

36b

SUPREME COURT OF THE UNITED STATES

No. A-184

SPENCER MIMS.

Petitioner,

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner(s),

IT IS ORDERED that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same is

hereby, extended to and including May 9, 1977.

/s/ Harry A. Blackmun

Associate Justice of the Supreme

Court of the United States

Dated this 6th day of April, 1977.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.