# Petition — Mims v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1617%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 968 ## Text 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 (i) TABLE OF CONTENTS Page ee eid ce mabaciew chee Sadesede G60b¥s 1 ee ec i cde cabbcedeuseeioses 2 SE IIIS, « coccecccccccccescductoceceas si 2 CONSTITUTIONAL PROVISIONS INVOLVED ............ 4 ee eee ci ca eesatbesndncees ieee 4 EW In oc ccc cvastandcvcectevectodes 4 SE GE HE AME oc ccdccrccccncccccccccccsesece 7 ee dd iz leek dgddtiedaecenie 18 RE RR ASR QA deed aa eA Ep la.lb 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 FO>O>rO> 2a 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 3a 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 > 4a 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 > we >OPFrAO YS Sa 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? 6a 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? 7a 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. 8a 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 9a 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 + * * Ib 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, 2b 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. oe 3b 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. 4b 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 Sb 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 6b 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 ee 7b 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 8b 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 9b 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