Petition — Costey v. United States

Me FIL E D

MAY 19 1977

IN THE

| MICHAEL — . GLERK |

SUPREME COURT OF THE

October Term, 1976

No. 7 6- ] 618

WILLIAM ESCARSEGA COSTEY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ cf Certiorari

Directed to the United States Court of

Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MORRIS LAVINE

617 S. Olive St.,

Suite 510

[err

Supreme Court. U. 4

5

Los Angeles, Ca. 90014

(213) 627-3241

Attorney for Petitioner

=

TOPICAL INDEX

Page

Jurisdiction 4

Constitutional Provisions

and Statutes Involved 4

The Facts 4

Questions Presented 9

Reasons for Granting the Writ 10

=

I

Whether the verdicts and

judgments of conviction of

all counts against petitioner

Costey, and the sentences

thereunder, without evidence in

support thereof beyond a reason-

able doubt, were violations of

due process of law guaranteed

by the Fifth Amendment to the

Constitution of the United

States, and plain error on the

face of the entire record and

a violation of the right to a

fair and impartial trial. (In

re Winship, 397 US 358, 25 L.ed.

2d 368) The government failed

to establish any knowledge or

intent to be a part of a conspir-

acy or to support a conspiracy

or to establish any conspira-

torial agreement by petitioner

Costey. | 10

-ii-

11

Whether in a case of conspir-

acy or aiding and abetting a

conviction may be had on only

slight evidence and whether

such slight evidence measures

up to the standard of proof be-

yond a reasonable doubt, re-

quired to convict a defendant

in any criminal case, or whether

a conviction based on slight

evidence violates due process

of law as guaranteed by the

Fifth Amendment to the Con-

stitution of the United States.

(U.S. X. Crimmins, 123 F.2d

271; Miller v. U.S., 382 F.2d

583) 11

111

Whether the concurrent sen-

tence doctrine, as construed

and applied in this case, de-

prived the petitioner of due

process of law, requiring no-

tice and an opportunity to be

heard, and under the facts of

this case requires a review of

all of petitioner's concurrent

sentences. 14

IV

Whether the petitioner was

highly prejudiced by the failure

of the District Court to sever

the cocaine conspiracy charges

from the heroin charges in the

interests of fair trial. :

: -iii-

22

Page TABLE OF AUTHORITIES CITED

V Cases Page

of fact in the opinion of 784, 23 L. ed. 2d 707 1516,17

the Court of Appeals re- |

quires reversal. 18 Brinegar v. U.S., 338 US

VI 160, 93 L.ed. 1879 20

Chapman v. California, 386 US

Whether the opinion of the 18 17 1.64.84 705 21

Court of Appeals is contrary

to this Court's holding in Daily v. U.S., 282 F. 2d 818 21

In re Winship, 397 US 358, Nay Be

25 L.ed.2d 368. 19 Direct Sales Co. v. U.S., 319

03, ~~ oo 21

88 22 5 US 703, 87 L. ed 674

i Evans v. U.S., 257 F. 2d 121 22

0 Falcone v. U.S., 311 US 205,

APPENDIX 85 L.ed. 128 11

Gault, Re, 387 US 1, 18 L.ed.

Opinion of the United States 2d 527 15

Court of Appeals for the

Ninth Circuit 1 Gregory v. Chicago, 394 US 111,

23 L.ed.2d 134 11

Kotteakos v. U.S., 328 US 750,

90 L.ed. 1557 17,18

Krulewitch v. U.S., 336 US 454,

93 L.ed. 790 13

Leary v. U.S., 395 US 6, 23 L.

ed.2d 57 14

Miller v. U.S., 382 F.2d

583 9,11,12

-V-

Cases Page

Ong Way Jong v. U.S., 245

F.2d 392 22

Putnam v. U.S., 162 US 687,

40 L.ed. 1118 : 16

‘Rothrock, In re, 14 Cal.2d 34 19

Shuttlesworth v. Birminghan,

394 US 147, 22 L.ed.2d 162 11

Sibron v. New York, 392 US 40,

20 L.ed.2d 917 17

Thompson v. Louisville, 362 US

199, 4 L.ed.2d 654 11

U.S. v. Crimmins, 123 F. 2d 271 9,12

U.S. v. Murray, 492 F.2d 186 14

Winship, In re, 397 US 358, :

25 L.ed.2d 368 9,10,11,14,20

| Constitution

United States Constitution

Fifth Amendment 2,3,4,9

10,11,12,15

Statutes

United States Codes

Title 18, Section 2 . 2,4,12

Title 18, Section 371 4

-vi-

Statutes

United States Codes (cont'd)

Title 21, Section 841(a) (1)

Title 21, Section 846

Title 28, Section 1254

Rules

Federal Rules of Criminal

Procedure, Rule 14

17

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

WILLIAM ESCARSEGA COSTEY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

Directed to the United States Court of

Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE WARREN BURGER AND

TO THE HONORABLE ASSOCIATE JUSTICES OF

THE SUPREME COURT OF THE UNITED STATES:

Your petitioner, William Escarsega

Costey, respectfully petitions this Honor-

able Court for a writ of certiorari dir-

ected to the United States Court of

Appeals for the Ninth Circuit to review

*

*

and reverse judgments of conviction of

Counts One, Four and Five of the indict-

ment on which he was convicted in a non-

jury trial. Costey was indicted along

with several others for alleged conspir-

acy to possess with intent to distribute

heroin in violation of 21 U.S.C. Sec. 846

for possession, together with one Thomas

Timothy Mika, aka Riggio, and others, with

intent to distribute in violation of 21

U.S.C. Sec. 841(a)(1), on April 7, 1975,

and for aiding and abetting Riggio in

the distribution of heroin in violation

of 21 U.S.C. Sec. 841(a) (1) and 18 U.S.C.

Sec. 2 (aiding and abetting). Costey

appeals from the convictions following

the non-jury trial and concurrent sen-

tences on all three counts.

Costey's contention is that there is

a total lack of evidence to sustain the

judgments and conviction and that his

conviction, therefore, is violative of

due process cf law guaranteed by the

Fifth Amendment tw the Constitution of

the United States. Costey also contends

that the Court of Appeals, as well as

the trial Court erred in holding that in

a conspiracy case only "slight" evidence

is needed for a jury to find participation

in a conspiracy. Costey contends that

Title 18, Section 2, defining who is an

aider and abettor, or in effect an alleg-

ed co-conspirator, must be proved by evi-

dence beyond a reasonable doubt, the same

as every other element in the entire crim-

inal case. (In re Winship, 397 US 358)

He further contends that the Court

of Appeals denied him due process of law

when it did not consider the issues of

insufficiency of the evidence and total

lack of evidence raised in the possession

count.

The Court of Appeals said:

"Costey's primary contention on

appeal is that the evidence was

insufficient to sustain the judg-

ment of conviction. As to the po-

session counts, he makes a persua-

sive argument. See United States

v. Gardner, 475 F.2d 1273 (9th Cir.),

cert. denied, 414 U.S. 835 (1973),

and United States v. Epperson,

485 F.2d 514 (th Cir. 1973). How-

ever, Costey received a concurrent

sentence on all three counts.

Therefore, if we affirm the con-

spiracy count, we need not consider

the issues raised as to the posses-

sion counts. United States v. Rod-

riguez, . ad „ (9th Cir.

Nov. 18, 1976); United States v.

Murray, 492 F.2d 178, 186 (9th Cir.

1973), cert.denied, 419 U.S. 854

(1974); see Benton v. Maryland,

395 U.S. 784 (1969).

Petitioner contends that failure

of the Court of Appeals to consider the

total lack of evidence on all three

counts to sustain his conviction is a

denial of due process of law guaranteed

by the Fifth Amendment to the Constitu-

tion of the United States.

Petitioner further contends that

this case raises important questions of

criminal law which this Court has not

passed upon but should pass upon in this

case. 7

The Court of Appeals said in its

opinion "According to our research, the

slight evidence rule has never been

*

applied in this context“.

JURISDICTION

Jurisdiction is conferred by Title

28, Section 1254, U.S.C.

The opinion of the Court of Appeals

was rendered and filed in the Ninth Cir-

cuit on January 31, 1977 (No. 75-3566).

A copy is attached hereto as Appendix "A".

A petition for rehearing was duly

filed and denied on April 21, 1977.

This petition for writ of certiorari

is filed within 30 days of the denial of

the petition for rehearing.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fifth Amendment, U.S. Constitu-

tion; Title 18 U.S.C. Sec. 371 (conspir-

acy); Title 18 U.S.C. Sec. 2 (aiding and

abetting; Title 21 U.S.C. Sec. 846;

Title 21 U.S.C. Sec. 84l(a)(1).

THE FACTS

On April 7, 1975 defendant Thomas

Timothy Mika, aka Riggio, met with Spec-

ial Agent William Dean of the Drug En-

forcement Administration at the Copper

Penny Restaurant in Hollywood. Agent

Dean was accompanied by one Eugene Mc-

Donnell. (R.T. 31-32) While having lunch

at the restaurant, Agent Dean informed

afin

Givens that he wanted to buy three

pounds of cocaine. Givens replied

that he knew a guy named Jeff who had

high quality cocaine for $1400 an

ounce and that he would make arrange-

ments with Jeff for Dean to buy pounds

and that Jeff wanted to sell a pound to

them before he did a larger transaction.

(R.T. 32) A sample of cocaine was de-

livered to Agent Dean, who tested it

and concluded that it was positive for

cocaine. The agent also said that he

wanted to purchase a kilogram of co-

caine, which he was told would cost

$40,000. (R.T. 39-41)

The next contact between Agent

Dean and the defendant Givens took

place on April 9, 1975, when the Agent

and McDonald and defendant Givens went

to Michael's Restaurant on Los Feliz in

Los Angeles and met Larry Williams and

one Thomas Riggio. (R.T. 65-66)

On April 22, Agent Tarillo placed a

telephone call to Riggio, who told him

he did not have any cocaine left but did

sell Tarillo one-half kilo of heroin for

$1050 an ounce. Agent Tarillo and Rig-

gio engaged in a telephone conversation.

The government offered no testimony to

connect petitioner with the cocaine

transaction.

On April 29, 1975 the Drug Enforce-

ment Administration began an intensive

surveillance of Riggio's activities. The

previous day; April 28, 1975, a narcotic

transaction was purportedly finalized

between Riggio and Agent Kareem and the

transaction was to purportedly take place

at the Universal Sheraton Hotel. (R.T.

-6-

160) On this date three Special

Agents were surveilling 15344 Wedding-

ton Street, in Van Nuys, an apartment

house. (R.T. 167, 197, 205) A Special

Agent named Day was instructed to con-

duct a surveillance on Riggio. He was

not told to conduct a surveillance on

or follow any other person. (R.T. 68—

176) Riggio was seen by another Agent

to leave the Weddington address and to

go to 2611 Bellevue Avenue in the City

of Los Angeles. About 20 minutes later

he was seen leaving the Bellevue address

carrying his coat over his right arm

and hand. Another Agent stated that it

was a rather warm day and he did not

see Riggio hide anything under the coat

or place any packages on the seat of

the car. (R.T. 189)

Agent Day testified to obs rving

and becoming aware of the existence of

petitioner for the first time on April

29, 1975, when he saw petitioner driving

a car behind that of Riggio (R.T. 167,

174); that petitioner was driving a white

Chevrolet Monte Carlo (R.T. 174) and

that he pulled in directly behind Rig-

gio's Pontiac and thereafter stayed close

to the Pontiac. Agent Day was informed

that there was no second vehicle involv-

ed in the surveillance. Agent Day tes-

tified that petitioner's white Monte

Carlo was observed to continue to drive

behind Riggio's car and change lanes

when Riggio changed lanes over a period

of four or five minutes. (R.T. 172)

Upon nearing the Lankershim Boulevard

turnoff of the Hollywood Freeway, Agent

Day testified that he observed Riggio

make a motion out of the window with his

hand, pointing toward the Lankershim

* *

turnoff. (R. T. 172-173) Agent Day fur-

ther testified that he observed petition-

er raise up his hand from the steering

wheel of the Monte Carlo and thereafter

exit the freeway at Lankershim behind

Riggio's car. No other activity between

Riggio and petitioner was observed by

Agent Day on the freeway.

Another Agent observed Riggio en-

ter the hotel carrying the coat over his

arm and that there was some kind of a

bulge underneath the coat but it could

have been his hand. The Agent also ob-

served a person in a white Chevrolet

Monte Carlo park near Riggio's car and

remain within the parked vehicle for

about 15 minutes and they were observed

to drive out of the parking lot and re-

turn in about 2 minutes. None of the

Agents apparently followed petitioner's

car when it left the lot.

After returning, the two occupants

exited the car and entered the hotel.

Riggio did not have any conversation or

exchange anything with the party in the

white Monte Carlo. Petitioner was

arrested a short time later while sit-

ting in the hotel lobby. No narcotics

were found on him or his companion.

(R.T. 272-273)

The day after the April 29, 1975

arrest of petitioner, Agent Dean spoke

with petitioner and was told by petition-

er that he, petitioner, was at the Shera-

ton Hotel on the prior day to collect a

debt from Riggio. Further, it was for

purposes of collecting this debt that

petitioner had followed Riggio to the

hotel. At the time petitioner made these

~

statements to Agent Day, co-defendant

Riggio confirmed said statement as to

the purpose for petitioner's meeting

Riggio at the hotel on April 29, 1975.

(R.T. 110) On a later date, Agent Dean

inquired of Riggio if he, Riggio, had

yet paid petitioner back the loan. (R.

T. 112)

The government, during the trial,

introduced Riggio's home telephone num-

ber, (213) 789-2591, listed under the

name of Denise Sly, at 15344 Weddington

Street, Van Nuys, California (Exhibit

13). At the time of his arrest, peti-

tioner Costey gave his address as being

2611 Bellevue Avenue, Apartment 102, Los

Angeles, California. The telephone for

that apartment was listed under the

name of Virginia Garcia and the number

was (213) 484-8537. The government in-

troduced evidence regarding telephone

calls between the two addresses. No-

thing in the evidence identified who

called, who the callers were or who spoke,

or what they said. There was no proof

that the calls related to narcotics.

Without any proof, the government specu-

lated that the conversations were be-

tween petitioner and Riggio.

Motions for judgments of acquittal

were made on September 18, 1975 and de-

nied by the Court on September 29, 1975.

Petitioner was convicted on Counts One,

Four and Five, and sentenced to four

years in prison on ea count, to run

concurrent, three LEA of special

parole. Notice of appeal was duly filed

= bond fixed on appeal on November 17,

75.

At no time was petitioner Costey

found in possession of any narcotic.

At no time during the trial was there

any evidence introduced of a conspira-

torial agreement between petitioner

Costey and any other person. There were

no conversations between petitioner and

any other defendant.

QUESTIONS PRESENTED

1. Whether the verdicts and judg-

ments of conviction of all counts

against petitioner Costey, and the sen-

tences thereunder, without evidence in

support thereof beyond a reasonable

doubt, were violations of due process of

law guaranteed by the Fifth Amendment to

the Constitution of the United States,

and plain error on the face of the entire

record and a violation of the right to a

fair and impartial trial. (In re Winship,

397 US 358, 25 L.ed.2d 368) The govern-

ment failed to establish any knowledge or

intent to be a part of a conspiracy or

to support a conspiracy or to establish

any conspiratorial agreement by peti-

tioner Costey.

2. Whether in a case of conspiracy

or aiding and abetting a conviction may

be had on only slight evidence and whe-

ther such slight evidence measures up to

the standard of proof beyond a reasonable

doubt, required to convict a defendant

in any criminal case, or whether a con-

viction based on slight evidence violates

due process of law as guaranteed by the

Fifth Amendment to the 8 of

the United States. (U.S. v. Cr ns,

123 F.2d 271; Miller v. ULT, 382 F.2d

-10-

583)

3. Whether the concurrent sentence

doctrine, as construed and applied in

this case, deprived the petitioner of

due process of law, requiring notice and

an opportunity to be heard, and under

the facts of this case requires a re-

view of all of petitioner's concurrent

sentences.

4. Whether the petitioner was high-

ly prejudiced by the failure of the Dis-

trict Court to sever the cocaine conspir-

acy charges from the heroin charges in

the interests of fair trial.

5. Whether the misstatement of

fact in the opinion of the Court of

Appeals requires reversal.

6. Whether the opinion of the Court

of Appeals is contrary to this Court's

holding in In re Winship, 397 US 358, 25

L.ed.2d 368.

REASONS FOR GRANTING THE WRIT

I

WHETHER THE VERDICTS AND JUDG-

MENTS OF CONVICTION OF ALL COUNTS

AGAINST PETITIONER COSTEY, AND

THE SENTENCES THEREUNDER, WITHOUT

EVIDENCE IN SUPPORT THEREOF BEYOND

A REASONABLE DOUBT, WERE VIOLATIONS

OF DUE PROCESS OF LAW GUARANTEED

BY THE FIFTH AMENDMENT TO THE CON-

STITUTION OF THE UNITED STATES,

AND PLAIN ERROR ON THE FACE OF

THE ENTIRE RECORD AND A VIOLATION

wht «

OF THE RIGHT TO A FAIR AND IM-

PARTIAL TRIAL. (IN RE WINSHIP,

397 US 358, 25 L.ED.2d 368)

THE GOVERNMENT FAILED TO ESTAB-

LISH ANY KNOWLEDGE OF INTENT TO

BE A PART OF A CONSPIRACY OR TO

SUPPORT A CONSPIRACY OR TO ESTAB-

LISH ANY CONSPIRATORIAL AGREEMENT

BY PETITIONER COSTEY.

Failure of the government to sustain

its burden of proof beyond a reasonable

doubt on all of the evidence of the charg-

ed offenses resulted in a failure to es-

tablish the charges against petitioner as

to the crime charged, and entitled him

to judgments of acquittal. (In re Win-

ship, 397 US 358, 25 L.ed.2d 368; Miller

v. U.S., 382 F.2d 583; Falcone v. U.S.,

311 U.S. 205-211, 85 L.ed. 128-132)

The conviction of a person not guilty

of a crime is a substantial denial of due

process of law guaranteed by the Fifth

Amendment to the Constitution of the Unit-

ed States. (Shuttlesworth v. Birmingham,

394 US 147, 22 L.ed.2d 162; Thompson v.

Louisville, 362 US 199, 4 L.ed.2d 654;

Gregory v. Chicago, 394 US 111, 23 L. ed.

2d 134)

11

WHETHER IN A CASE OF CONSPIR-

ACY OR AIDING AND ABETTING A

CONVICTION MAY BE HAD ON ONLY

SLIGHT EVIDENCE AND WHETHER SUCH

SLIGHT EVIDENCE MEASURES UP TO

THE STANDARD OF PROOF BEYOND A

REASONABLE DOUBT, REQUIRED TO

CONVICT A DEFENDANT IN ANY CRIM-

x ™

INAL CASE, OR WHETHER A CONVIC-

TION BASED ON SLIGHT EVIDENCE

VIOLATES DUE PROCESS OF LAW AS

GUARANTEED BY THE FIFTH AMEND-

MENT TO THE CONSTITUTION OF THE

UNITED STATES. (U.S. V. CRIMMINS,

123 F.2d 271; MILLER V. U.S., 382

F.2d 583)

It is important in the interests of

justice and fair play to clear a defendant

convicted on speculation and conjecture

and who suffers the consequences thereof.

This Court has never construed the slight

evidence rule into conspiracy cases nor

any other criminal cases, as superseding

proof of guilt beyond a reasonable doubt.

Proof of conspiracy in both civil

and criminal cases requires clear and

convincing evidence of every element.

In criminal cases, Congress has not dif-

ferentiated the quantity of evidence re-

quired between principal and an aider

and abettor or conspirator and has not

specified that slight evidence is suffic-

ient to connect a person with conspiracy

and its dragnet consequences, and this

Court should grant a hearing and so hold.

Section 2 of Title 18 puts all par-

ticipants in an alleged crime on the

same footing and requires the same amount

of evidence as to every element of the

crime charged. Petitioner Costey contends,

in effect, that the evidence is insuffic-

ient to establish that he participated

in a single over-all conspiracy of the

crime charged.

We have found no support in this

Court for the doctrine adopted by the

ah Ds

Court of Appeals that only slight evi-

dence is sufficient in a criminal case

to make one a defendant in a conspiracy

case, and the language of Krulewitch v.

U. S., 336 US 454, 458, 93 Led. 790,

801, says:

"True, the modern law of con-

spiracy was largely evolved by

the judges. But it is well and

wisely settled that there can be

no judge-made offenses against

the United States and that every

federal prosecution must be sus-

tained by statutory authority. No

statute authorizes federal judges

to imply, presume or construct a

conspiracy except as one may be

found from evidence. To do so

seems to approximate creation of

a new offense and one that I would

think of doubtful constitutional-

ity even if it were created by Con-

gress. And, at all events, it is

one fundamentally and irreconcil-

ably at war with our presumption

of innocence.

"There is, of course, strong temp-

tation to relax rigid standards

when it seems the only way to sus-

tain convictions of evildoers. But

statutes authorize prosecution for

substantive crimes for most evildoing

without the dangers to the libery of

the individual and the integrity of

the judicial process that are inher-

ent in conspiracy charges. We

should disapprove the doctrine of

implied or constructive crime in its

entirety and in every manifestation."

alge

The government must still prove

every element of the offense beyond a

reasonable doubt. This includes the

very important element of evidence of

Costey's participation. Nothing in the

rules of evidence nor the statutes says

that all that is required is "slight

evidence", (Leary v. U.S., 395 US 6,

23 L.ed.2d 57)

111

WHETHER THE CONCURRENT SEN-

TENCE DOCTRINE, AS CONSTRUED

AND APPLIED IN THIS CASE, DE-

PRIVED THE PETITIONER OF DUE

PROCESS OF LAW, REQUIRING

NOTICE AND AN OPPORTUNITY TO

BE HEARD, AND UNDER THE FACTS

OF THIS CASE REQUIRES A RE-

VIEW OF ALL OF PETITIONER'S

CONCURRENT SENTENCES.

It is necessary for this Court to

grant a hearing because the Court of

Appeals, having accepted the slight evi-

dence view of Count One, has not passed

on Counts Four and Five in which there

is a total lack of any substantial evi-

dence beyond a reasonable doubt (In re

Winship, supra) of the petitioner's par-

ticipation in a conspiracy or being

connected with it.

In U.S. v. Murray, 492 F.2d 186, the

Court said:

"Under the concurrent sentence

doctrine we could, in the exercise

of our discretion, decline to reach

this issue. See Benton v. Maryland,

23

ain

395 U.S. 784, 791, 89 S.Ct. 2056,

23 L.Ed.2d 707 (1969)

"However, we have elected to

consider this question. San

Diego County facilities were

necessarily used for any tele-

phone calls from California to

Tijuana, and for sending Western

Union money orders from Califor-

nia to Tijuana. But no direct

evidence of calls made, or money

orders sent, by Roberts or Walker

to Tijuana was introduced."

In Benton v. Maryland, 395 US 784,

L.ed.2d 707, 715. th, the Court said:

"Because of the special cir-

cumstances in this case, we find

it unnecessary to resolve this

dispute. For even if the concur-

rent sentence doctrine susvives

as a result of judicial conveni-

ence, we find good reason not to

apply it here."

The basic requirements of due pro-

cess of law guaranteed by the Fifth

Amendment to the Constitution of the

United States are notice and an opportun-

ity to be heard, and receive a fair trial.

This encompasses a fair hearing on notice.

18

In a footnote in Re Gault, 387 US l,

L.ed.2d 527, 549, the Court said:

"For application of the due pro-

cess requirement of adequate no-

tice in a criminal context, see,

e.g., Cole v. Arkansas, 333 US 196,

92 L ed 644, 68 S Ct 514 (1948);

In re Oliver, 333 US 257, 273-278,

-16-

92 L ed 682, 694-696, 68 S Ct

499 (1948). ..."

IV

WHETHER THE PETITIONER WAS

HIGHLY PREJUDICED BY THE

FAILURE OF THE DISTRICT

COURT TO SEVER THE COCAINE

CONSPIRACY CHARGES FROM THE

HEROIN CHARGES IN THE INTER-

ESTS OF FAIR TRIAL.

The Court of Appeals says:

"As to the possession counts, he

makes a persuasive argument. See

United States v. Gardner, 475 F.2d

1273 (9th Cir.), cert. denied, 414

U.S. 835 (1973), and United States

v. Epperson, 485 F.2d 514 (9th Cir.

1973)."

In Benton v. Maryland, 395 US 784,

791, 23 L.ed.2d 714, the Court said:

"It is sufficient for present

purposes to hold that there is

no jurisdictional bar to consid-

eration of challenges to multiple

convictions even though concurrent

sentences were imposed."

The Court in the Benton case has

discussed the applicability of the con-

current sentence doctrine and said that

on at least one occasion the Court had

ignored the rule entirely and decided

an issue that affected only one count,

even though there were concurrent sen-

tences. (Putnam v. U.S., 162 US 687,

-17-

40 L.ed. 1118; 23 L.ed.2d 1113)

It is an unfair rule to deprive

a defendant-petitioner of his right to

be cleared on counts in which there is

a total lack of substantial evidence of

his guilt or criminality.

In Sibron v. New York, 392 US 40,

20 L.ed.2d 917, the Court considered

the collateral legal consequences re-

sulting from the release of a defendant

prior to argument on appeal and it de-

termined that the case was not moot be-

cause the defendant has served his sen-

tence and the Court held it would review

the question of mootness where it goes

to the very essence of the controversy

for the Court to adjudicate.

A defendant in a criminal appeal

has a right to have the fundamental

question of his innocence and lack of

any proof of his guilt to be adjudicat-

ed on appeal on all counts.

Rule 14, Federal Rules of Criminal

Procedure, provides:

"If it appears that a defendant

or the government is prejudiced

by a joinder of offenses or of de-

fendants in an indictment or an

information or by such joinder for

trial together, the court may order

an election or separate trials of

counts, grant a severance of de- 8

fendants or provide whatever other

relief justice requires.

In Kotteakos v. U. S., 328 US 750,

90 L.ed. 1557, 1571, the Court said:

atin

"The dangers of transferrance

of guilt from one to another a-

cross the line separating conspir-

acies, subconsciously or other-

wise, are so great that no one

really can say prejudice to sub-

stantial right has not taken place."

This quotation out of the Kotteakos

case, and the holding of that opinion, is

applicable here. The error in joining

the petitioner here on an event that

allegedly occurred on April 29 was clear-

ly the different offense than the charge

in the earlier part of the indictment

and permeated error which affected sub-

stantial rights of the petitioner - the

right not to be tried en masse for the

conglomeration of separate offenses

allegedly committed by others and not

this petitioner. The prejudice is appar-

ent.

V

WHETHER THE MISSTATEMENT OF

FACT IN THE OPINION OF THE

COURT OF APPEALS REQUIRES RE-

VERSAL.

The Court of Appeals in its opinion

stated: "The telephone records demon-

strate substantial communication between

Riggio and Costey".

A communication, as referred to in

this opinion, is a conversation or conver-

sations. There is not a word in the rec-

ord to support this misstatement of fact.

There is no proof of any conversation

between Riggio and Costey. The opinion

-19-

based upon this statement is a mis-

statement of the facts and the Court

of Appeals fell into error by reason

of the presentation to the Court of an

incomplete investigation and report

regarding the telephone.

Nothing was produced or shown that

the petitioner at any time talked on the

telephone or that he was even present on

the day of the alleged conversations nor

is there any evidence as to who used the

telephone nor any substantial evidence

as to any names on the bills and the en-

tire subject matter of the use of the

telephone was entirely speculative and

conjectural and could not form the basis

of any inference that petitioner had

made the calls. The telephone company

records and Agent Philip M. Tucker,

assigned to the Drug Enforcement Admin-

istration, furnished no evidence con-

necting the petitioner.

Agent Tucker testified he did not

recall whose name was on the bell at the

addresses 2611 Bellevue Avenue, Apart-

ment 102. (R.T. 283)

In In re Rothrock, 14 Cal.2d 34, 40,

the Court held that where it fell into

error by reason of a fact that counsel

failed to properly brief and present the

question under consideration, that the

Court would remand the case to trial

for a new trial.

VI

WHETHER THE OPINION OF THE

COURT OF APPEALS IS CONTRARY

~20-

TO THIS COURT'S HOLDING IN

IN RE WINSHIP, 397 US 358,

25 L.ED. 2d 368.

The Court of Appeals erroneously

held that only slight evidence is neces-

Sary to convict a defendant of being

guilty of a conspiracy and it sustained

the convictions in ignorance of the re-

quirement that in criminal cases due

process in the courts of the United

States demands that proof of a criminal

charge be established beyond a reason-

able doubt. (In re Winship, 397 US 358,

25 L.ed.2d 368)

The Winship case holds that proof

of a criminal charge, beyond a reason-

able doubt, is constitutionally required.

(397 US 362 )

In the Winship case the Court said,

quoting from Brinegar v. U.S., 338 US 160,

174, 93 L.ed. 1879, 1889:

"In a similar vein, the Court

said in Brinegar v United States,

Supra, at 174, 93 L Ed at 1889,

that '(g)uilt in a criminal case

must be proved beyond a reasonable

doubt and by evidence confined to

that which long experience in the

common-law tradition, to some ex-

tent embodied in the Constitution,

has crystallized into rules of evi-

dence consistent with that standard.

These rules are historically ground-

ed rights of our system, developed

to safeguard men from dubious and

unjust convictions, with resulting

forfeitures of life, liberty and

property. Davis v. United States,

-21- -22-

supra, at 488, 40 L Ed at 506, knowledge and intent, but this is not

stated that the requirement is the only reasonable inference which may

implicit in ‘constitutions ... be drawn from such conduct. (Evans v.

(which) recognize the fundamen- . U.S., 257 F.2d 121, 126; Ong Way Jong v.

tal principles that are deemed U.S., 245 F.2d 392, 394) .

essential for the protection of

life and liberty.' ..."

WHEREFORE, petitioner prays that

The Court of Appeals has taken this Honorable Court grant certiorari

trifles light as air and given them and reverse the judgments on all counts

the weight of Holy Writ. None of the and order judgments of acquittal.

items discussed in their opinion prove

facts which, if believed, would show Dated: May 18, 1977

guilt on the part of Costey beyond a

reasonable doubt, nor has the Court cer- Respectfully submitted,

tified that the evidence showed guilt

beyond a reasonable doubt, as required

by Chapman v. California, 386 US 18, MORRIS LAVINE

17 L.ed.2d 705.

Attorney for Petitioner

The motions for judgments of acquit- °

tal as to Costey should have been grant-

ed and should be ordered by this Honor-

able Court.

In a conspiracy and in the crimes

charged, in order to establish a person

as a participant in a conspiracy, the

evidence must show that the accused in-

tended to join and cooperate in the

illegal venture. Knowledge that a con-

spiracy exists is a minimum requirement

for establishing the requisite intent.

Furthermore, to establish the intent,

the evidence of knowledge must be clear,

not equivocal. (Direct Sales Co. v.

U.S., 319 US 703, 711, 87 L.ed. 1674.

See: Daily v. U.S., 282 F.2d 818, 821-

822.)

Association with an alleged co-con- ‘

spirator may raise a strong suspicion of

APPENDIX "A"

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ;

es.

WILLIAM ESCARSEGA COSTEY, N 5

Defendant-Appel lant. ;

No. 75-3566

MEMORANDUM

(January 31, 1977)

Appeal from the United States

District Court for the Central

District of California

Before: CHAMBERS and WALLACE, Circuit

Judges, and JAMESON,* District

Judge

Costey was indicted, along with several

others, for conspiracy to possess with intent

to distribute heroin in violation of 21 U.S.C.

Sec. 846, for possession, together with Rig-

gio, of heroin with intent to distribute in

violation of 21 U.S.C. Sec. 84l(a)(1), and

*Honorable William J. Jameson, United

States District Judge, District of Montana,

sitting by designation.

* *

for aiding and abetting Riggio in the dis-

tribution of heroin in violation of 21

U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

Costey appeals from a conviction following

a non-jury trial. We affirm.

Costey's primary contention on appeal

is that the evidence was insufficient to

sustain the judgment of conviction. As to

the possession counts, he makes a persua-

Sive argument. See United States v. Gardner,

475 F.2d 1273 (9th Cir.), cert.denied, 414

U.S. 835 (1973), and United States v. Epp-

erson, 485 F.2d 514 (9th Cir. 1973). How-

ever, Costey received a concurrent sentence

on all three counts. Therefore, if we

affirm the conspiracy count, we need not

consider the issues raised as to the pos-

session counts. United States v. Rodriguez,

F. 2d, [9th Cir. Nov. 18, 1976);

United States v. Murray, 492 F.2d 178, 186

(9th Cir. 1973), cert. denied, 419 U.S.

854 (1974); see Benton v. Maryland, 395 U.S.

784 (1969)

The conspiracy was clearly established

and Riggio was obviously a member of it.

Where a conspiracy is clearly proven, only

Slight evidence is needed for a jury to find

participation in the conspiracy. United

States v. Turner, 528 F.2d 143, 162 (9th

Cir. 1975); United States v. Westover, 511

F.2d 1154, 1157 (9th Cir.), cert. denied,

422 U.S. 1009 (1975); United States v. See,

505 F.2d 845, 856 (9th Cir. 1974), cert.

denied, 420 U.S. 992 (1975). In this case,

the trial was held before a judge sitting

without a jury. According to our research,

the slight evidence rule has never been

applied in this context. However, the bur-

den of proof for a finding of guilt is the

same whether trial is held before a judge

or before a jury. Guilt must be proven

-3-

beyond a reasonable doubt. Holland v.

United States, 348 U.S. 121, 138 (1954);

United States v. Lake, 482 F.2d 146, 149

(9th Cir. 1973). Because slight evidence

of participation is sufficient for a jury

to determine beyond a reasonable doubt that

a defendant was guilty of participating in

a proven conspiracy, the same quantum of

evidence is sufficient to find guilt where

trial is held before a judge.

Thus the question on review in this

case is whether the record shows the neces-

Sary slight evidence of Costey's partici-

pation. In making this determination, we

must view the evidence and all reasonable

inferences arising therefrom in a light most

favorable to the government as the prevail

ing party. United States v. Hood, 493 F.2d

677, 680 (9th Cir.), cert.denied, 419 U.S.

852 (1974).

There are several items of relevant

evidence. Riggio indicated that he was not

the top man. The telephone records demon-

strate substantial communication between

Riggio and Costey. There were a total of

77 telephone calls between the residences

of the two men during the month of April

1975, including 11 calls on April 28 and 29,

the day before and the day of the attempted

sale of one pound of heroin.

On his way to the hotel where the sale

was to occur, Riggio stopped at Costey's

apartment building for 20 minutes and left

with a cogt over his hand and arm.

On the freeway leading to the hotel,

Costey was seen to pull in directly behind

Riggio's car and stay unusually close.

While still on the freeway, Riggio signalled

to Costey to indicate the proper turnoff;

etn

Costey signalled back, indicating receipt

of the message.

When the two cars arrived at the hotel,

Riggio parked in the hotel parking lot.

Costey parked nearby but there was no con-

versation between the two men. Riggio en-

tered the hotel with a coat over his hand

and arm. During the time period while Rig-

gio was in the hotel, Costey waited in his

car for 15 minutes, drove off for a period

of two minutes, returned to the same park-

ing space and then left his car and entered

the hotel lobby.

We find that this constitutes the nec-

essary slight evidence of participation.

The evidence in the aggregate indicates

that Costey intended to join and cooperate

in the illegal venture. Miller v. United

States, 382 F.2d 583, 587 (9th Cir. 1967).

AFFIRMED.