Petition — Lustig v. United States

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IN THE

Supreme Court of the United Dtates

OCTOBER TERM, 1977

No. 977405

GEORGE H. LUSTIG,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP P. WEIDNER

DRATHMAN, WEIDNER & BRYSON

333 W. Fourth Avenue

Suite 35

Anchorage, Alaska 99501

(907) 276-7000

Attorney for Petitioner

September 12, 1977

TT SE TET TT TEAC ATE,

Ken Wray’s Print Shop, Inc., 323 East Fireweed, Anchorage, Alaska 99503, 907-276-4535

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TABLE OF CONTENTS

7 | I rc eae ch coe vheseeasecexean)

I]. NS ne aera waits ay aie lw rieg aa rae ]

® IT. Questions Presented for Review... 000000000 0.00000. |

I\. Constitutional, Statutory, and Regulators

PN te ies cea bee eannbawe 2

\. I I oa oxo 60 kod 5 Rb nF eeh ie vewee

VI. Reasons for Granting the Writ of Certiorari ......... 7

\. The Common-Law Marital Privilege and Equal

Protection. Due Process. and the Right to

PE Gon eee ge nn Cai aale ieee oA 66 oo 7

1. The Newton Lustig Marriage has not

as view awe p's owes oes 7

2. Callie Newton Lustig Violated

Confidential Communications... .......... 8

3. The Court of Appeals has Decided the

Important State Question of the

Protection Afforded Common-Law

Marriage Under the Constitutional

Rights to Equal Protection and Privacy

in Conflict with Applicable Alaskan

RO i oa ena ee eR Ch A ea w Ew Oo ee 9

4. The Court of Appeals Opinion

Decides the Important Question of the

> Scope of the Federal Marital Privilege

: in Conflict with Applicable Decisions

of the U.S. Supreme Court, and Federal

Statutes which Establish a Common-Law

Marital Privilege that Exists Untila

Marriage is Terminated by Divorce

Through Judicial Decree... .............. 10

The Opinion has Decided an Important

Federal Question by Denving Equal

Protection, the Right to Privacy, or

the Protection of Rule 501 to the

c..

Petitioner's Common-Law Marriage and

the Issue has not Been. But Should be.

Ne eas eenwaw ere

The Jury Instruction “...Very Little

Kv idence is Necessary to Show that a

Particular Defendant was Part...(ot a

Conspiracy )...Slight Ev idence is

RN gtr iote Oe Ot a

|. There is a Direct Conflict Between

the Ninth Circuit and the Fifth Circuit

with Regard to Whether this Instruction

Constitutes Reversible Error. ............

2. The Instruction Conflicts with Decisions

of this Court with Regard to Requiring

Proof Bevond a Reasonable Doubt as to

Each Element of the Offense Under the

eer Peewee CAMP. oc ccc ecess

The Denial of Effective Assistance of

Counsel of One's Choice... ..........0.06.

|. The Opinion Conflicts with Other

Ninth Circuit and D.C. Circuit

Decisions and Decisions of this

Court with Regard to the Test for

Prejudice from Arbitrary Interference

with the Right to Counsel of One's

PPR or rt Pere TTT erate

2. The Important Federal Question of

the Impact of the Speedy Trial Act on

the Right to Counsel has not Been,

But Should be, Settled by this Court... ....

D. The Warrantless Seizure of the Opaque

Parcel from Mr. Lustig’s Truck and the

Warrantless Search of the Parcel at Police

IID. 6 o.o.'ak-0 ton basa kas sss 0h oes

1. The Opinion Decides the Important

State Question of the Permissible

Scope of an Inventory Search and

_ 16

‘sae

‘ts,

e,Y

z..

Summary and Conclusion

Appendix

ill

Seizure in Conflict with Applicable

Alaska Law and South Dakota V.

Opperman, 428 U.S. 364 (1976) 2.0000...

2. The Opinion Decides the Important

Federal Question of a Permissible

Warrantless Seizure and Search

Pursuant to an Arrest in Direct

Conflict with U.S. V. Chadwick, 97

S.Ct. 2476, 45 L.W. 4798 (1977)

The Denial of Confrontation for Bias

and the Denial of a Two Hour Continuance

to Produce a Critical Witness

The Refusal to Allow an Individual Poll

as to Each Count Where the Petitioner had

Admitted One Count in his Testimony

Present, or a Record, at the Communication

with and Excusal of aJuror.................

1. The Opinion is in Conflict with the

Other Courts of Appeals, and this

Court with Regard to the Right to be

Present at Critical Stages of the

Proceedings Including Communications

I ino o4.d5 bso 6doen sess ce kiuws

2. Certiorari Should be Granted Since the

Opinion Sanctions the Departure by the

Trial Court from the Accepted and Usual

Course of Judicial Proceedings so as to

Call for an Exercise of this Court's

ek ko

>. The Arbitrary Refusal of the Right to be

ras & 6 6.6 83-4686 6 6 6.0.86 a

tetas 6.8688 8 © 6 & oe 6

TABLE OF CASES AND AUTHORITIES

ord c. U.S... 202 U.S. GBT CIDE 2. ccc cv er ccctecnsesess 25

Altman v. State. 19 Cr. Rptr $82 (9 176) (Ct. of App..

ee RE rr rr 22

{nderson v. State. 555 P.2d 251 (AK 1976)... 22... 24

trlington v. Robertson. 114 F.2d $21 (3rd Cir. 1940)... .... 30

Blumenthal v. U.S.. 332 U.S. 539, 559-560 (1948). ......... 21

Breese v. Smith, 501 P.2d 159 (AK 1972) ...........26005- 10

Brodsky v. U.S.. 339 F2d 180, 182 (9th Cir. 1964) ......... 4

Brown vc. State. 372 P.2d 785. 788 (AK 1962) ...........-. 29

Breton c. U.S... 900 U.S. 1SSCHRBD... 6 cee ccccewsvencers 25

Burgess Const. Co. v. Lindley, 504 P.2d 1023 (AK 1972).... 9

Chapman v. State of California, 315 U.S. 75 1967)... 6... 20

Cooper v. U.S. 282 F.2d 527 (9th Cir. 1966). ...........-. 8

Davis v. State of Alaska. 415 U.S. 308 (1974). .00.0...0....-. 25

Daygee v. State. 514 P.2d LIS59¢(AK 1973).........-..26-. 22

Dutton c. Ecans. 400 US. 74 (IGG) . ww ccc cv eccsunwnuens 25

Erickson v. State. 507 P.2d 508 (AK 1973). ...........6.4-- 24

Evans v. State. 550 P.2d 830 (AK 1976) .........-.----4-- 25

Faubion v. U.S... 424 F.2d 437, 440 (10th Cir. 1970)... ..... 24

Fina v. U.S.. 46 F.2d 643, 644 (10th Cir. 1931)............ 30

Geders c. U.S... 425 U.S. SOCIDTED . occ ccscccvassussusenes 20

Glasser c. U.S.. 318 U.S. GO UID4OZ) .. 0. ecw ccccscssees 20, 21

Glenn v. U.S.. 303 F.2d 536, 543 (Sth Cir. 1962)........... 18

Gray v. State, 525 P.2d 524 (AK 1974)... 2.666 ee eee 10

In re Groban, 352 U.S. 330, 332 (1957) . 0.2... eee eee ee eee 21

Hager v. Hager, 558 P.2d 919 (AK 1976)... 2 ee eee q

Hawkins v. U.S., 358 U.S. 74 (19589)... 2... ee ee eee 11,12

Hendrickson v. Harry. 200 Mich. 41, 164 N.W., 393, 166

\.W. 8023. 1007 ... ec cvcccccscesee nue eee 12

Hoss v. Purinton, 229 F.2d 104 (9th Cir. 1955) ............ 8

Hughes v. U.S.. 427 F.2d 66 (9th Cir. 1970)... 0.0.2. eee. 25

Humphries v. Dist. of Columbia, 174 U.S. 190 (1899) .. . 26. 27

Hutchings v. State. 518 P.2d 767 (AK 1974)............... 25

Jones v. U.S... 299 F.2d 661 (10th Cir. 1962)...............30

mets ¢.t.S.. 309 .S. 3471(1087).................... ...14

Kotteakos v. U.S. 328 U.S. 750, 774.773 (1946)... 0... wr

Labine v. Vincent, 401 U.S. 532 (1971)................... 13

Lee v. State, 509 P.2d 1088 (AK 1973) ....00000 0. 27

Lemon v. State, 514 P.2d 1156(AK 1973) ................ 25

Levy v. Louisana, 391 U.S. 68 (1969) ..0000 0 13

DME MEEE Se Cas elbeea wb sveccscsccevcerec i9

George H. Lustig v. The Honorable James Von Der Heydt.

EE 4

Lutwak v. U.S.. 344 U.S. 604,615(1953)................. 1]

Mardian v. U.S.. 546 F.2d 973 (D.C. Cir. 1977) ........ 15.2]

Marvin v. Marvin. No. L.A. 30520, 50 Cal. App.3d 84

EE Ng 13

McCoy v. State, 491 P.2d 120(AK 1971) ................. 23

McKissick v. U.S. 379 F.2d 762 (5th Cir. 1967) ........... 30

Metropolitan Paving Company v. Int. Union of Op. Eng..

Ne cee cwncccee 30

Moss v. Moss, Q.B.D. (1963) AIL E.R. 829 (England)........ 12

Parker v. U.S., 184 F.2d 488, 490 (4th Cir. 1950) .......... 30

Pederson v. U.S... U.S. Sup. Ct. No. 77-5118 ..0.0.......... 15

People v. Marshall, 69 Cal. Rptr. 558, 442 P.2d 668........ 24

Pereria v. U.S., 347 U.S. 1,6(1964) ...................... 12

Posey v. U.S., 416 F.2d 545, 553 (Sth Cir. 1969)........... 27

Powell v. Alabama, 287 U.S. 45(1932)................... 20

poweten ©. U.S. 376 U.S. af 967 ...... 2... ew ee eee. 23

R.L.R. tv. State 487 P.2d 27 (AK 1971).................... 25

Ravin v. State, 537 P.2d 494 (AK 1975) .................. 10

Releford v. U.S.. 288 F.2d 298 (9th Cir. 1961)

Schraff v. State. 544 P.2d 834 (AK 1975) .................

Shibley v. U.S... 237 F.2d 327, 334 (9th Cir. 1956)

Snyder v. Commonwealth of Mass., 78 L.Ed 674 (1927) ..

South Dakota v. Opperman, 428 U.S. 364 (1976)... 2... .3,!

State v. Spietz. 531 P.2d 521 (AK 1975)

Tarnef v. State. 512 P.2d 923 (AK 1973)..................

Tarnef v. State. 429 P.2d 109 (AK 1971)

Torres V. U.S.. 270 F.2d 252, 255 (9th Cir. 1959)

S. v. Apodaca, 522 F.2d 568, 571 (10th Cir. 1975)

“S. v. Arrigada. 451 F.2d 487 (4th Cir. 1971) ............

S.v. Ashby. 245 F.2d 684, 686 (5th Cir. 1957)

S.v. Brasseaux. 509 F.2d 157, 161 (Sth Cir. 1975)... .....

S.v. Burks. 470 F.2d 482 (D.C. Cir. 1972)

"S. v. Cameron, 464 F.2d 333, 335 (7th Cir.).... 2.2.22...

S.v. Chadwick. 97 S.Ct. 2476, 45 L.W. 4798

S. v Chrisco. 493 F.2d 232 (C.A. Mo. 1974).............

Colandra, 414 U.S. 338 (1974)

Crisona. 416 F.2d 107, 119 (2nd Cir. 1969)

Crockett. 534 F.2d 589, 604 (5th Cir. 1976)

Crutcher. 405 F.2d 339, 244 (2nd Cir. 1968)

Decoster. 487 F.2d 1197 (D.C. Cir. 1973) ..........

S. ex. rel Baskerville v. Deegan, 428 F.2a 734

716 (2nd Cir. 1970)

“S. v. Domenech. 475 F.2d 1

“S. v. Edwards. 489 F.2d !362 (Sth Cir. 1972)

.S. v. Farries. 328 F.Supp. 1074 (6th Cir. 1971)

». Fisher. 518 F.2d 836. 838 (2nd Cir. 1972)

_v. Freie, 545 F.2d 1217, 1221 (9th Cir. 1976)

». t. Goodman, 457 F.2d 68, 73

_v. Hall, 525 F.2d 1254, 1255 (5th Cir. 1976)

». v. Harris. 501 F.2d 1 (9th Cir. 1974)

werchenrprsuertew >

etetwaoeeaeer

ee ee Gbnnee OO ee & CD Ss

See eg<eeaanawseaeéckeaesvees «

.-e886'6608 28 28 8 a

7, PST ee ePe eer Ss Cee ee Se

[cae ee ee ee ee |

2 (2nd Cir. 1973)....2

“ee 8 © © © ee

eeseeeaeeaenée

SBeeceeeaneeee 666688690606 6 €

(ce A a ee ee

Vil

U.S. v. Houilhan, 332 F.2d $13 (2nd Cir. 1964). ........... 28

U.S. v. Lockhart, 366 F.Supp. 843 (D. Ct. Penn 1973) ...... 27

U.S. v. Lusk, A-75-104 Cr. (U.S.D.C. AK 1/7/76). 2.2.2.2... 22

U.S. ©. Laatie, U.S.A at. Mo. AlUS-7TOC2. ... wo. cece cc ccee de

U.S. v. Lustig et. al.. slip op. no. 1260, 76-2661 2... 00.0..... |

U.S. v. Marionneaux, 514 F.2d 1244, 1249 (5th Cir. 1975)... 6

U.S. v. Martin, 21 Cr. Rptr. 2045 (D.C. Cir. 1977) ......... 4

U.S. v. McElrath, 377 F.2d 508, 510 (6th Cir. 1967) ....... 1]

U.S. v. Miller, 463 F.2d 600 (Ist Cir. 1972) ............... 30

U.S. v. Mitchell, 354 F.2d 767 (2nd Cir. 1966)............. 2)

U.S. v. Murray. 527 F.2d 401, 409 (5th Cir. 1976) ......... 15

U.S. v. Neeley, 475 F.2d 1136, 1137 (4th Cir. 1973)........ }

U.S. v. Pederson, slip op. no. 1260 (9th Cir. 6/15/77)... .. “7

U.S. v. Cheryl Rae Pederson, C.A. 9th No. 76-2725.......... 3

U.S. v. Seale, 461 F.2d 345 (7th Cir. 1972)................ 2)

U.S. v. See, 505 F.2d 845 (9th Cir. 1974) ................. 15

U.S. v. Sexton, 456 F.2d 961 (5th Cir. 1972) ........... 26. 27

U.S. v. Simmons, 357 F.2d 763, 764 (9th Cir. 1972)........ 19

U.S. v. Smith, 533 F.2d 1077 (8th Cir. 1966) .............. 12

U.S. v. Visuana, 395 F.Supp. 352 (1975).................. 27

U.S. v. Westover, 511 F.2d 1154. 1157 (9th Cir. 1975). ..... 15

U.S. v. Woodner, 217 F.2d 649, 652 (2nd Cir. 1963) ....... 28

Volintias v. Immigration and Naturalization Service.

Se © ewe FO, CU IGT. CUNO oo vc ccc cccdeccsccncss 8

Wade v. U.S., 441 F.2d 1046 (D.C. Cir. 1971)............. 30

Ware v. U.S., 376 F.2d 717, 721 (7th Cir. 1967) ........... 30

Whitton v. State, 479 P.2d 302 (AK 1970) ................ 25

Williams v. U.S., 419 F.2d 740 (1970).................... 27

In the Matter of Samuel Winship, 397 U.S. 358, 364.

25 L.Ed.2d 368, 90 S.Ct. 1068 (1970).................. 17

Yoder v. U.S., 80 F.2d 665 (10th Cir. 1935). .......00.0..... 8

Vill

CONSTITUTION ANDSTATU TES:

L nited States Constitution:

First Amendment .............. Sgr Rea ee hee ye to .2

Fourth Amendment ......00....... -

Sith Amendment . . ee ee ?

EPR eee reer re Se ee ee, 9

United States Code:

i ns otha a a ak aa eb oie es ae Tite). Tih Ue

a caw alekuudiie bon eeewes 27

21.U S.C. S4hia aT ee Sea “A ee eens 2 3

21 S.C. $46 EL a en PEEL a 5a Pa anal SG ~~

Statutes:

or koe at ek ee ee le g

re ie oo i ee ee eee i)

Sta ane ao ale veg ecCkineeenen er.

\S 13.11.045 a re ay eer er ae )

\S 20.15.040 Vere ee err ey tre eee eee PeTree eT Tee Y

Pe ar Ere are ae" i)

Ee eee Cea eae 5.9

I kn Ra ah 6a ek eh RA ROS Oe ee a 5.9

DEE <0) ct kcaunschnb.ss eases ae sane nana ie 5.9

Miscellaneous:

Se, MEE naa -6 on soa 64d ase Neaea ea kuve tue meees 22

EMS kb eee See Tenner meee Tee ee 22.23

IN THE

Supreme Court of the United States

OCTOBER TERM. 1977

No.

GEORGE H. LUSTIG,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TO: THE HONORABLE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

The Petitioner, GEORGE H. LUSTIG, respectfully prays that

a Writ of Certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Ninth Circuit

entered in this proceeding on June 15, 1977, Petition for Re-

hearing En Banc denied August 12, 1977.

1 OPINION BELOW.

The opinion of the Ninth Circuit. in U.S. 0. Lustig. et. at.. Slip

Opinion No. 1260. No. 76-2661, F.2d

1977). Rehearing En Banc denied August 12. 1977. is not vet

. (June 15,

reported: a copy is attached as Appendix A. No District Court

opinion was reported: any written memorandum decisions are

reproduced as Appendix B.

II. JURISDICTION.

The opinion in the Court of Appeals was entered June 15.

1977. A timely Petition for Rehearing and Suggestion of the

Appropriateness of Rehearing En Banc. filed June 30. 1977.

was denied August 12, 1977. Jurisdiction is invoked under 25

U.S.C. 1254 (1). The instant Petition is timely under Supreme

Court Rule 22 (2), since filed within thirty davs after entry of

final judgment.

III. QUESTIONS PRESENTED FOR REVIEW.

A. Whether the Denial of the Protection of the Common

Law Marital Privilege and the Federal Marital Privi-

lege Under Rule 501 as to Mr. Lustig’s Common Law

Wife Violated His United States and Alaska Constitu-

tional Rights to Due Process, Equal Protection, and

Privacy?

B. Whether Instructing the Jury that “Verv Little Evi-

dence is Necessary to Show that a Particular Defendant

was a Part” of a Conspiracy Violated the Right to

Proff Bevond Reasonable Doubt as to Each Element of

an Offense as Mandated by the Due Process Clause of

the Fifth Amendment?

C. Whether the Freezing of All of the Defendant's Assets

and the Denial of a Severence or Reasonable Continu-

ance to Enable Petitioner's Counsel of Choice to Investi-

gate, Prepare, and Subpoena Witnesses Denied the

Sixth Amendment Rights to Counsel, Cross-Examination,

Confrontation, and to Call Witnesses?

D. Whether the Warrantless Search of an Opaque Parcel

Seized From Mr. Lustig’s Vehicle Absent) Probable

Cause or the Necessity for an Inventory Search, Vio-

lated the Rights to Privacy and Freedom From Illegal

Search and Seizure Under the United States and Alaska

Constitutions, United States vr. Chadwick, 97 S.Ct.

2476. 45 L.W. 4798, (6/21/77) and South Dakota v.

Opperman, 428 U.S. 364 (1976), Where the Search

Occurred at Police Headquarters?

. Whether the Refusal to Allow Cross-Examination as to

Motive for Bias and the Denial of a Two Hour Continu-

ance to Enable the Petitioner to Confront and Cross-

Examine the Source of Damaging Hearsay Statements

and to Produce Evidence of Bias, Violated the Sixth

Amendment Rights to Confrontation and to Call

Witnesses?

F. Whether the Refusal to Allow an Individual Poll as to

Fach Count of a Multiple Count Indictment Where the

Petitioner had Admitted All the Elements of One

Count. Violated the Constitutional Right to a Jury

Trial?

(;. Whether the Arbitrary Refusal of the Right to be

Present, or a Record. at a Communication by the Trial

Judge with a Juror, and the Excusal of Said Juror,

Violated the Right to be Present, the Right to Due

Process, and the Right to a Jury Trial?

IV. CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED.

This case involves the due process clause of the Fifth Amend-

ment, the equal protection clause of the Fourteenth Amend-

ment, the warrant clause and unreasonable search and seizure

clause of the Fourth Amendment, the right to counsel, con-

frontation, and witness clause of the Sixth Amendment, and the

right to privacy from the First, Fourth, and Ninth Amendments

to the U.S. Constitution. Rule 501, 603, 605 of the Federal

Rules of Evidence, and Rules 26, 31, and 43 of the Federal

Rules of Criminal Procedure are involved, as well as Article 1.

$14 and §22 of the Alaska Constitution. 15 U.S.C. 3164 (Speeds

Trial Act), 21 U.S.C. $46 (conspiracy), AS 25.05.011, 25.05.261,

25.05.31) (Alaskan common-law marriage), and 13° AAC.

§$2.375 and 2.350 (Alaskan impound law). The pertinent text

of each is set forth in Appendix C.

V. STATEMENT OF THE CASE.

The Petitioner, George H. Lustig. is serving fourteen vears

pursuant to jury convictions for distribution of a controlled

substance (cocaine), in violation of 21 USC §S4 10. and con-

spiracy to distribute a controlled substance (cocaine), in viola-

tion of 21 USC §$46.!

Mr. Lustig was charged in a superseding indictment on

March 24, 1976. with co-defendants Gregory D. Pederson and

e )

Chery] Rae Pederson.”

|. Mr. Lustig received 9 vears incarceration for the instant convictions. and

five vears incarceration, to be served consecutively. in a probation revocation

proceeding in U.S. v. Lustig, No. A 115-73 Cr.. (U.S. Dist. Ct.. AKA.)

(September 15, 1976), based on the conviction and alleged conduct in the

instant proceeding. The revocation and sentence were appealed to the Ninth

Circuit, and affirmed in U.S. v. Lustig. slip. Op. No. 1277, No. 76-3146,

F.2d (June 15, 1977), Petition for Rehearing En Banc denied

August 12, 1977. A Petition for a Writ of Certiorari with regard to said opin-

ion is being filed simultaneously with the instant Petition, and the Court is

respectfully requested to take judicial notice of said Petition and the record

below.

2. The co-defendant Gregory D. Pederson. filed a Petition for A Writ of

Certiorari to the United States Court of Appeals for the Ninth Circuit, on the

18th dav of July, 1977. with regard to U.S. « Pederson, slip. Op. No. 1260,

a (9th Cir. 615.77) with regard to the instruction that very

little evidence is necessary to show that a particular defendant was a part of a

conspiracy. Said Petition, Case No. 77-5115. is still pending before this Court.

The appeal of Chery! Rae Pederson, in U.S. v. Cheryl Rae Pederson, No.

76-2725 is still pending in the Ninth Circuit with regard to the questioned

instruction and other points.

\lter posting bail in the instant proceeding. Mr. Lustig was

rearrested on a Petition to Revoke Probation and held without

bail. in a substandard pretrial detention facility. severely ham-

pering his efforts to obtain counsel. All of his assets were frozen

by an injunction issued against transferring or encumbering

said assets

Despite the difficulties engendered by the frozen assets and

the conditions of incarceration, Mr. Lustig. after substantial

effort. obtained counsel of choice four days betore trial. The

trial judge. mistakenly believing that he was bound by a rigid

reading of the Speedy Trial Act. 1S USC §3164. denied re-

peated motions for continuance, or severance. and the Ninth

Circuit Court of Appeals denied an Application for Writ of

Prohibition. °

Mr. Lustig’s original counsel, after entering a limited appear-

ance for purposes of arraignment. moved to withdraw due to

non-availability of his partner, whom Mr. Lustig initially ex-

pected to retain, and due to a conflict with Mr. Lustig. The

record is replete with references to the difficulty Mr. Lustig

encountered obtaining counsel of choice, and the conflict exist-

ing between Mr. Lustig and his initial attorney.

The evidence against the Petitioner was largely circumstan-

tial. At his arrest. the police seized a brown paper bag contain-

ing a scale and a “seal-a-meal’ machine tied by scientific

evidence to the bags of cocaine sold by the co-defendant

Pederson to an undercover officer. The “seal-a-meal” machine

was discovered in a search of the opaque brown paper bag at

3. Entitled George H. Lustig v. The Honorable James Von Der Heydt. filed

42676 (9th Cir. No. 76-1919). (Denied, 4 2676). An Appeal from Order

Respecting Conditions of Release, in A 115-73 Cr. was filed in the Ninth

Circuit on 42676 and denied after the trial as being moot. (R. A 115-73

Cr. at 323-369)

police headquarters, alter said bag was seized from Mr. Lustig’s

truck. despite the fact he had friends standing by to move the

vehicle, as is his right under the applicable Alaska Statutes

governing the State Troopers making the arrest.

The most damaging testimony was given by his common law

wife, Callie Newton Lustig, who had lived with him in a

common-law marriage for seven vears and bore him two chil-

dren. She testified over objection, she had personally used the

“seal-a-meal” machine to bag cocaine. and sold cocaine at

George's direction, “taking care of business” while he was

hospitalized. The District Court. and the Ninth Circuit, both

incorrectly held Rule 501, of the Federal Rules of Evidence, is

governed by State law and both incorrectly held that in Alaska.

AS 25.05.011, 25.05.2611, and 25.05.311, totally prohibit com-

mon law marriage.

The District Court denied a hearing on whether the Lustig

Newton common law relationship had been terminated with no

chance of reconciliation, and the Court of Appeals made a de

novo finding an irreconcilable termination had occurred, to

defeat the equal protection aspects of the “‘anti-marital facts”

privilege.’

Both the District Court and the Court of Appeals incorrectly

held that no confidential communications had been revealed.

The primary reason for Callie Newton Lustig’s testimony and

bias, was a lesbian relationship existing between herself and

Phyllis Resnek, a police informant. The court restricted cross-

4. Both the District Court and the Court of Appeals were aware Callie

Newton Lustig had served Mr. Lustig with a “common-law divorce” com-

plaint asking for custody of the children and one half of his property only a

few days prior to trial, that no final decree has vet been entered in said action.

and that negotiations with regard to reconciliation were. and are still. on-

going between Mr. Newton Lustig and Mr. Lustig.

examination of Callie as to bias. and refused a two hour con-

tintiance to enable the defense to subpoena Phy ilis Resnek to

establish said bias. and turther to confront and cross-examine

the source of 27 phone calls made by Ms. Resnek to the police to

the effect that Mr. Lustig was a “big fish” in dealing drugs.

The trial court refused confrontation of the informant Tarnet,

who had purportedly identified Mr. Lustig as being at the scene

of one of the sales, and had linked his name to the conspiracy.

as to whether he was currently under investigation or charges,

with respect to the felony murder of a local policeman. arson.

perjury. or narcotics.

On the second day of testimony, the trial judge intormed

counsel in chambers that he had met ex parte with one of the

jurors. and had decided to excuse him. Despite repeated de-

mands for an evidentiary hearing. and the right to be present at

any further questioning of the juror, the Judge further examined

the juror in chambers without a record, and excused him in the

absence of Mr. Lustig or counsel.” No exigent circumstances

existed.

The jury was instructed, over objection, that:

“Once a conspiracy is shown to exist. very little evidence is

necessary to show that a particular defendant was a part of

it. Slight evidence is enough.... (Certified Record 537).

5 Cathe Newton Lustig was induced to testify by “relax” of information

from Lee Peterson. a former United States Attornes to Phyilis Resnek. to

Cathe. to the effect that Mr. Lustig purportedly “implicated” Callie in his

defense. Note that in fact Tarnef, another government informant. implicated

Callie

While the opinion incorrectly indicates that the alternate juror seated

was approved by the defendant. in fact. said alternate was not so approved

Peremptors challenges as to the alternates were exhausted. and the defense

reserved one peremptory challenge as to the main trial jury to avoid seating

the juror Mrs Scott. who was the alternate eventually seated over objection

Although Mr. Lustig admitted Count Vo (possession) of the

multiple count indictment, an indisidual poll as to each juror as

to each count was denied.

By court order, Mero Lustig has been prohibited trom = con-

tucting the juror interrogated ex parte by the Judge. or contact-

ing the other jurors as to whether said juror communicated any

alleged bias

The civil suit filed by Mir. Lustig’s common-law wife asking

for a “common-law divorce” remains pending. Mr. Larstig’s

assets remain frozen. Mr. Lustig remains incarcerated.

This Petition for Writ of Certiorart Follows

VI. REASONS FOR GRANTING THE WRIT OF

CERTIORARI

\. The Common Law Marital Privilege and Equal Protec-

tion, Due Process, and the Right to Privacy.

The opinion holds: (1) Under Rule 501 of the Federal Rules of

Evidence the “anti-marital facts” privilege is controlled by

state law and Alaska state law totally prohibits common-law

marriage: (2) The common-law marriage had been “terminated

with no chance of reconciliation”: (3) None of the testimony of

the defendant's common-law wife reveal confidential communi-

cations. U.S. v. Lustig, supra, at 1271-1273.

At Footnote 11. the opinion concedes the existence of a

common-law marriage in accordance with common-law

principles.

1. The Newton Lustig Marriage has not Been Terminated.

The Newton Lustig Complaint was filed two davs prior to the

trial they had separated five months prion to his arrest. abter

coven Vears ob marrage. They have two children clr 1963-1965)

Niro Laistig repeatedds. demanded that a show ing be made out-

side the presence of the jury as to termination (Pr L926. 1927,

193)? 1933). The Court was aware negotiations for recone

from were still Hh Prowress

\tter refusing a hearing. the trial Judge failed to make find-

ings as to termination of the marriage. and the Ninth Circuit

made said findings de nore on appeal. unsupported by the

record below >

> Calhe Newton Lastig Violated Contidential Comuiur

nications

\s reflected by the record. she claimed <e¢ was merely

“taking care of business” tor George while he was in the hos-

pital. (Tr. 1955. 1967). she had left due to discussions over drug

dealing (Tr. 1957. 1966). she was selling drugs te Miro Lustig’s

there also has to be a showing that the marriage is disintegrating.

There still has to be a showing. Bring the lady in here and let us hear her

testimons There are still negotiations going on between myself and Mr

Peterson in terms of trying for a reconciliation...and we are not at the state

uhere there is complete disintegration of marriage. It is not totally dis-

intevrated. The government is contributing to that to bring this lady in and

put heron the stand (Tr. 1932) FA)

S No tinal decree has been granted by the State Court in the suit tor dis-

solution of the marriage. assets. and child custods by Callie Newton Lustig:

negotiations as to reconciliation are still ongoing and in pre-trial stages. For

the other cases dealing with the termination of a marriage prior to trial by

divorce. see Cooper vt. US.. 282 F.2d 527 (9th Cir, 1966). Brodskey v US.

334 F Jd 1SO. 182 (9th Cir. 1964). US. &. Crockett. 534 F.2d 589, 604 (5th

Cir 1976) US. +. Burks. 470 F.2d 482 (D.C. Cir, 1972) (termination by

death. \olinitias +. Immigration and Naturalization Service. 352 F.2d 766.

Tos Sth Cir 1965) OS +. Ashby. 245 F.2d 684. 686 15th Cir, 1957). Hoss

Purinton 229 F 2d 104:9th Cir, 1955). Yoder rv. US. SOF 24 655 (10th Cir.

Pas

)

customers due to communications by Miro Laistig while he was

in the hospital wevereh burned and under heavy medication)

as to hospital bills he was meurring. (Pr 1950. 1961. 1969.

1970. 1971. 1994. 1996. 1997, 2004. 2014) prior to her

leaving him. Clr. 1965)

3. The Court of Appeals has Decided the Important State

Question of the Protection \tlorded Common-Law Mar-

riage Under the Constitutional Rights to Equal Protec:

tion and Privacy in Conflict with Applicable Alaskan

Law

The opinion makes a broad holding that common-law nmiar-

riage is invalid under Alaskan law. citing AS 25.05.01],

25.05.26). and 25.05.31)

In fact. these are essentially “property statutes”. limited by

the Alaska Supreme Court. on an equal protection analysis. In

Burgess Const. Co. v. Lindley. 504 P.2d 1023 (AK 1972). the

court: indicated a distinction between a legal spouse and a

common-law spouse via the workmen's compensation statute.

AS 23.30.215. would violate Article 1. Section 1. of the Alaska

Constitution [equal protection].” Justice Erwin. concurring.

stated:

“I find the statutory grant of workmen's compensation

benefits to a legal wife and not to a common-law wife. is a

violation of Article 1, 8 1. of the Alaska Constitution which

guarantees all persons equal protection under the law. Such

classification constitutes impermissible discrimination that

would deny benefits under AS 23.30.215 (a) (2) [Workmen's

compensation statute} solely because a ‘spouse’ did not go

through a formal marriage ceremony. Id. at 1026, (F.A..

footnotes omitted)

4 See also Hager v) Hager, 558 P.2d GIG (AK 1976) (AS 04.55.2100 (6).

(statutory division of marital property as applied to common-law marriage).

AS 11.35.010 tobligation of child support). AS 11.35.100 (illegitimate chil

dren of both parents), AS 13.11.045 (inheritance through mother and father if

acknowledged), AS 20,15 040 (consent of both parents for adoption)

The Viaska Constitution prov ides:

The right of the people te privacy is recognized and shall

not be infringed. The legislature shall implement this sec-

tion. Article 1. $22. (R.A)

The Alaska Supreme Court has declared the intimate rela-

Honships of its citizens will not be breached or intruded upon

absent a compelling state interest. Ravin v. State, 537 P.2d 494

AK L975). Grau +. State. 525 P.2d 524 (AK 1974): see also

Breese v. Smith. 30) P.2d 159 (AK 1972) Right to privacy. and

right to be lett alone

4 ‘The Court of Appeals Opinion Decides the Important

Question ot the Scope of the Federal Marital Pris tlege in

Conthict with Applicable Decisions of the U.S. Supreme

Court. and Federal Statutes which Establish a Common-

Law Marital Privilege that Exists Until a Marriage is

Terminated by Divorce Through Judicial Decree.

Lnder Rule 501. the Federal Courts are not constrained to

apply state law with regard to privileges in criminal matters.

Lewise. United States. 517 F.2d 236. 237 (9th Cir. 1975). held:

In determining the Federal law of privilege in a federal

question case... the rule ultimately adopted. whatever its

substance, is not state law but federal common law. (cita-

tion omitted) «emphasis added).

The legislative history of Rule 501, 10 demonstrates that while

Congress did. while rejecting Article V (privileges) as promul-

10) See AM Jur 2d) New Topic Service, Federal Rules of Evidence.

Paragraph 501.2 at No 56: H-RNo. 93-650 93rd Cong. Ist Sess.. 8-9 (1973)

SK Op. No. 1277. 93rd Cong. 2nd Sess., 6-7, 11-13 (1974): H.R. Cong. Rep.

No. 1597. 93rd Cong. 2nd Sess, 7-8 (1974): U.S. Cod. Cong. and Admin. News

1974. page TO9S. See also. the remarks of Congressman Hungate. Chairman

of the House Judicial Committee on Criminal Justice. stating that Rule 50]

was “not intended to treeze the law of privileges as it now exists’, appearing

at 120 Cong Rec H 12254 (1974). and Joint Explanatory Statement of the

Committee of Conterence. page 7, on 501, “Both the House and Senate bills

provide that federal privilege law applies in criminal cases” (emphasis

added)

gated by the U.S. Supreme Court. refuse to deliniate non-

constitutional privileges. the intent was “the courts should

continue to develop the federal common-law on a case to case

basis.” Lewis, supra at footnote 4.

The cases cited by the decision for the proposition that state

law controls are not applicable. U.S. v. Apodaca, 522 F.2d 568,

571 (10th Cir. 1975). deals with sham marriage. (citing Lutwak

v. U.S., 344 U.S. 604). US. v. Neeley, 475 F.2d 1136, 1137 (4th

Cir. 1973), interprets the Virginia privileged communications,

Va. Code Ann. €8-289 (1957). U.S. v. McElrath. 377 F.2d 508.

510 (6th Cir. 1967) treats bigamy.

In Hawkins v. U.S., 358 U.S. 74(1959). the Court established

a marital privilege for purposes of federal common law. In

Lutwak v. U.S., 334 U.S. 604, 615 (1953). the Court recognized

the reason for the privilege is to “Protect the sanctity and

tranquility of the marital relationship”. (E.A.)''

In 1959, Justice Black. speaking for the Court. stated:

The basic reason the law has refused to pit wife against

husband or husband against wife in a trial where life or

liberty is at stake was a belief that such a policy was neces-

sary to foster family peace not only for the benefit of hus-

band, wife and children, but for the benefit of the public as

well... much more bitterness would be engendered by volun-

tary testimony than that which is compelled...(while) the

fact a...wife testifies against the other voluntarily is strong

indication that the marriage is already gone...Not all

marital flare-ups in which one spouse wants to hurt the

other are permanent. ... The wide-spread success achieved

by courts throughout the country in conciliating familv

11. See also; § Wigmore on Evidence 42228 (policy to preserve chances

of reconciliation), “The Husband and Wife Privileges in Federal Criminal

Procedure” 24 Ohio St. L. J. 144, 152 (1963). and “Polies, Privacy and

Perogatives: A Critical Examination of the Proposed Federal Rules of Ey i-

dence as they Effect Marital Privilege’. Calif. L. Ro Vol 61. 1353311973)

differences is a real midication that some apparently broken

homes can be saved provided that no unforgivable act is

done by cither party. Adverse testimony given in « riminal

proceedings would. we think. be likely to destroy almost

any marriage. Hawkins v. U.S.. supra.. at 358 US. 74-79

FA.)

While Pereria vo U.S... 347 U.S. 1.6 (1964) held that divorce

terminated the privilege: merely filing a complainc is not sut-

ficient. Without a tinal judicial decree of divorce. there is a

presumption reconciliation is possible, and the government

| “ a a"

should not force an irresistable “wedge” between the parties.

1 Sor. Smith. 333 F.2d 1077 (Sth Cir. 1966) indicates clearls

the couple was divorced prior to trial. U.S. v. Fisher, 518 F.2d

$36. 83S (2nd Cir. 1972). involved a final divorce decice. with

an appeal pending. | ’

4. The Opinion has Decided Important Federal Questions

by. Denying Equal Protection, the Right to Privacy. or

the Protection of Rule 501 to the Petitioner's Common-

Law Marriage and the Issues have not Been, but Should

be. Settled by this Court.

The opinion denies the shield of equal protection, privacy, or

Rule 501 to a marriage valid at Federal common law. Said

protections are denied if a state in some manner prohibits

common-law marriage. This issue has never been settled by the

12 “After the great cause of the dissolution...has come to pass. and the

parties are not only alieniated in spirit. but also solumly freed by judicial

decree ithe privilege would cease). & Wigmore, supra at $2227) (EA) See

also Hendrickson t. Harry. 200 Mich. 41. 164 NW... 393, 166 NW. 1023.

IG17 osite cannot testify during pendency of divorce action: allowed to

testify once the divorce is tinal) Moss r Moss. Q.B.D. (1963) AIL FR. $29

Fogland: husband cannot testify during period of judicial separation.

13) The Fisher court distinguished Hawkins, supra. by noting Fisher had

no children bs the witness. had two children by another woman, and had not

lived with the witness for eleven vears and actually had been granted a

divorcecon bis own motion and testimons. Fisher, supra. at 518 F.2d $40

Court. and is one of great importance which is likely to reoccur

on a wide-spread scale throughout the lower courts such that

the Court should give detinite direction: to protect common-law

marriage from the type of invasion reflected by the record in

this proceeding he

It is manifest that a substantial portion of the marital rela-

tionships now ongoing in the United States are common-law .!>

The Court has previously applied an equal protection analv-

sis to prevent discrimination against illegitimates. and other

persons Who by choice or necessity choose to live outside of the

strict moral dictates of society. In Lery v. Louisana, 391 US.

HS. (1969). the Court held that a state could not deny recovery

for wrongful death ina court action to the illegitimate offspring

of a mother. since the classification of the illegitimacy of the

child is net a rational basis for the purpose of the statue and

therefore denys equal protection. In Labine rv. Vincent. 401 U.S.

532.1197 1). the Court upheld Louisiana’s intestate succession

which precluded an illegitimate child from claiming the same

14. Many legal scholars trace the origin of the marital privilege to the

“natural repugnance theory” with regard to dely ing into the intimate aspects

of one’s marital existence.

15. See “Property Rights of De Facto Spouses Including Thoughts on the

Value of Homemaker Services”. Fam. Law Quart. at 102. in which it was

stated:

1. Estimates based on 1970 and 1960 census figures suggest that the

number of unmarried couples living together increased eight-fold during

the 1960's. Note, “In re Cary: A Judicial Kecognition of Mlicit Cohabita-

tion’. 25 Hastings L.J. 1226 (1974) ..2 U.S. Bureau of the Census 1970

Census of population, Persons by Family Characteristics, table 11, at

4B: 2 US. Bureau of the Census 1960 Census of Population. Persons by

Family Characteristics, table 15 at 4B. (E.A.) (Appearing at footnote 1).

In Marvin vr. Marvin. No. L.A. 30 520, 50 Cal. App. 3d $4 (1975),

P2d (Calif. 1977). the California Supreme Court recognized this

Phenomenon. in upholding the right to sue on a common-law marriage con-

tract. overruling a long line of precedent.

rights as a legitimate child. based upon the unique historical

state interest in determining property rights. but) speciticalls

distinguished between property rights and the issue of benefits

provided by the State.

The marital relationship. is a relationship at the core of the

right to privacy. in that said relationship necessarily involves

intimate private Communications, and procreation. such that

this Court should be particularly sensitive to an) arbitrary

ree : ' : Ih

discrimination against common-law marriage

Since Mr. Lustig met the criteria of Katz rv. U.S.. 389 U.S.

347 (1967). in that he had. in fact. an expectation of privacy in

the communications and relationship with his common-law

wite due to the confidential nature of the relationship. and

society recognizes these expectations as reasonable. the marital

pris ilege should attach.

Moreover, even absent equal protection. or the right to

privacy. the importance of common-law marriage in current

society means that the Court should recognize the common-law

marital privilege under Rule 501 since the privilege meets all of

the criteria enunciated for whether a common-law privilege is

desirable. ''

lh For the proposition that the Court has been particularls sensitive to

such relationships. see “Roe and Wade. Does Privacy have a Principle” 26

Stan. IL. R. LIG) (1973-74) The right to privacy emulates from the

penumbras” of the various ober amendments sic Ist. 9th and 4th

Amendments)

17. S Wigmore. Ex idence §2255 delineates the criteria as

(1) The communications must originate in a confidence that thes will not

be disclosed. (2) This element of confidentiality must be essential to the

tull and satisfactory, maintenance of the relationship between the parties.

(3) The relation must be one which in the opinion of the community ought

to be sedulously fostered. (4) The injury that would inure to the relation

by the disclosure of the communications must be greater than the

benefits thereby gained for the correct disposal of litigation.

Thus. it ts umperative that the Court grant certiorari in order

to delineate the scope of the protection afforded a common-law

marriage relationship in today’s society, where such a substan-

tial portion of said society isembraced in such relationships.

Bo The Jury Instruction “Nery Little Evidence is Neces-

sary to Show that a Particular Defendant was Part...cof

a Conspiracy)... Slight Evidence is Enough”.

|. There is a Direct Contiict Between the Ninth Circuit

and the Fifth Circuit with Regard to Whether this

Instruction Constitutes Reversible Error.

Over objection the trial court instructed:!>

Once a conspiracy is shown to exist. very little evidence is

necessary to Show that.a particular defendant was a part of

it. Slight evidence is enough. Each member of the con-

spiracy is responsible not only tor his own acts, but also for

the acts and statements of the other members done and

made in furtherance of the scheme. They are agents for

each other. What one does pursuant to the common pur-

pose all do. (Cert. Record 537). (FLA.

The Ninth Circuit held:

It is well established that once the existence of a conspiracy

is established, only slight evidence is required to connect

any defendant with it. United States v. Freie. 545 F.2d

1217, 1221 (9th Cir. 1976): United States v. Westover, 511

F.2d 1154. 1157 (9th Cir. 1975). (Emphasis in original).

U.S. Lustig, supra, at 1275-1276.

Freie. supra, and Westover, supra actually deal with the

standard for a directed verdict, relving on U.S. v. See, 505 F.2d

$45 (9th Cir. 1974) (standard for directed verdict).

This holding directly contradicted the Fifth Circuit rule that

the instruction is reversible error. United States v. Murray, 527

1S. The Co-defendant below. Gregor, D. Pederson. filed a Petition for a

Writ of Certiorari on July 18. 1977 entitled Gregory D. Pederson. Petitioner.

vr. United States of America. Respondent, Case No. 77-5118. with regard to

this identical issue (Filed in Forma Pauperis). ‘

F.2d 401. 409 (5th Cir. 1976). U.S. ve. Hall. 525 F.2d 1254.

1255 (Sth Cir. 1976); U.S. v. Marionneaux, 514 F.2d 1244.

1249 (5th Cir. 1975): U.S. v. Brasseaux, 509 F.2d 157, 161 (5th

Cir. 1975).""

the standard for appellate review...is whether slight evi-

dence connected a particular defendant with the alleged

conspiracy...It is, of course, error for the trial court to

charge the jury in terms of ‘slight evidence’, Murray, supra,

at 404. (citations omitted) (emphasis in original)

It is imperative this Court give direction with regard to this

important issue, due to the large instance of conspiracy trials

now coming before the lower courts. A substantial portion of

the defendants therein are being tried on circumstantial evidence.

It is manifest the Fifth and Ninth Circuits are in absolute

contradiction on this instruction, which dilutes the most basic

principal of criminal law, the right to be convicted only on

proof bevond a reasonable doubt as to each element of the

alleged offense.7”

2. The Instruction Conflicts with Decisions of this Court

with Regard to Requiring Proof Bevond a Reasonable

Doubt as to Fach Element of the Offense Under the Due

Process Clause.

The instruction clearly dilutes the standard of proof beyond a

reasonable doubt. The Court held In the Matter of Samuel

19. Both the District Court, and the Court of Appeals, were on notice, that

the cases cited dealt with the issue of the standard for a directed verdict and

the Fifth Circuit rule was that the instruction was reversible error. (TR. 2108).

20. The error permeated all of the verdicts, since it allowed the use of state-

ments and acts by co-conspirators with regard to the other counts of the

indictment: there was no limiting instruction that the jury must find conspir-

acy before considering such evidence (TR 29%), and the court refused to allow

indix idual verdict forms with signatures for each juror, as to each defendant,

for each count. (TR 2115. 2116).

Winship, 397 U.S. 358, 364, 25 L.ed.2d 368, 90 Sup. Ct. 1068

(1970):

Lest there remain any doubt about the constitutional sta-

ture of the reasonable doubt standard, we explicitly hold

that the Due Process Clauses protects the accused against

conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which

he is charged. (E.A.)

Whether a particular defendant is part of a conspiracy is a

fortiori an essential element of the crime of conspiracy.

...the erroneous instruction reduced the level of proof neces-

sary for the government to carry its burden by possibly

confusing the jury about the proper standard or even

convincing jury members that a defendant's participation

in the conspiracy need not be proved beyond a reasonable

doubt. Hall, supra, at 1256 (E.A.).

C. The Denial of Effective Assistance of Counsel of One's

Choice.

Due to a mistaken rigid construction of the speedy trial act,

18 U.S.C. 3164, repeated motions for continuance or severance,

were denied, despite only four days for counsel of choice to

prepare for trial.” The opinion holds: (1) It was Mr. Lustig’s

fault he did not obtain other counsel despite incarceration in

substandard conditions, “frozen assets”, “no attorney in town

would touch the case”, and only thirty days elasped from ar-

raignment to trial. (2) Even with only four days to prepare,

21. The opinion disregards: (1) the original attorney never entered a

general appearance (TR Vol XI, pg. 2), (2) the defendant expected to hire his

partner, (3) conflicts as to the defense lead him to move to withdraw at the

arraignment on the superseding indictment. Jail conditions severely inter-

ferred with attempts to seek counsel. The record reflects all efforts possible to

obtain counsel. The court was told that no one would touch the case with the

financial constraints imposed.

there was insufficient prepadice to mandate reversal 00S. 1

Lustig. supra. at 1267-1 269.-~

1 The Opinion Contlicts with Other Ninth Circuit) and

19. Circuit Decisions and Decisions of this Court with

Regard to the Test for Prejudice trom Arbitrary Inter

ference with the Right to Counsel of One's Choice.

The cases cited in the decision were miscited or improperly

distinguished. Glenn v. U.S.. 303 F.2d 536, 543 (Sth Cir, 1962)

contained no indication of interference with the ability to hire

ei ed ee 23

counsel, with a specitic finding below of sufficient means.

While a judge does have discretion to grant or deny contin-

nances. in OS. 0. Harris, 501 F.2d 1 (9th Cir. 1974). and Dant

r ¢ §. 405 F.2d 312. 315 (9th Cir. 1968). there was “no

22) The opimion finds no preyidice but holds the failure of counsel (retained

four days prior to trial to tile onistructions five days before trial waived any

objections to the conspiracy instructions. Said lack of preparation was a

direct contrbuting factor to farlare to. cL) subpoena Phillis Resnek TR 2027)

2 obtain a suppression hearmg 3) prepare for effective cross-exanmunation of

Calle Newton Lustig as to motive for bias or prepare effective surrebuttal of

the extremel damaging testimony of Callie Newton Lustig. (TR 1924 for

contusion of counsel with the name of common-law wife). See Lofton t

Procnier. 487 F.2d 434. 435 (9th Cir, 1973). Resnek was critical tor con-

frontation as to both the twenty-seven phone calls to the police indicating that

Mir. Lustig was a dealer and the nature of Callie’s motive tor bias.

23. The opinion avoids this issue by stating the court would have approved

a fee agreement and “one could only infer that some attractive consideration

prompted (present counsel to enter the casey”. This ignores, (1) the right to

retain counsel of one’s choice. (2) there was not an attorney in town that

“would touch this man. The only thing he has is his property, he doesn't have

his cash. (TR 3:16:76, AL15-73 Cr. at 40). (Note that Judge Plummer. to

date. still has not released the assets). The “inferences” to the effect that

present counsel “immediately rented an office, hired a secretary. investigator,

research assistant. and another attornes to work on the case” (Note 5) are not

supported by the record and are either exaggeration or misstatements.

Mardian t. U.S., 546 F.2d 973 (D.C. Cir. 1977) is improperly distinguished.

\s in Mardian. there was disparity in the evidence between Mr. Lustig and

bos co-defendants. (direct sales vs. circumstantial evidence), and it is reverse

logic to argue that since the trial had not begun before the motions for

contimmance inthe instant case, Mardian is inapplicable.

rational explanation for the continuance. with counsel an-

nouncing ready at trial OS. ex. rel. Baskerville 1 Devgan. 428

F.2d 714. 716 (2nd Cir, 1970). contained no dissatisfaction

with counsel until trial 00S. 0. Simmons. 357 F.2d 763. 764

(9th Cir, 1972) presented a continuance request at trial, with

suspicious reasons given for requesting new counsel. Torres

v0.8. 270 F.2d 252, 255 (9th Cir. 1959) relied on previous

continuances granted to obtain counsel. Here. the record re-

Hects continuing concern by Mr. Lustig and his initial attorney

for his right to counsel, and good cause for the continuance.

due to the necessity for locating witnesses. with the only reason

lor the denial the mistaken belief that the Speedy Trial Act

prohibited a continuance.

The wrong test for prejudice is applied. In Lofton v. Prociner.

487 F.2d 434. 435 (9th Cir. 1973). a defendant was forced to

trial after counsel failed to show. despite a prior four week

continuance. The Ninth Circuit reversed and remanded for an

evidentiary hearing. indicating de novo findings of lack of

prejudice could not be made for a denial of the right to counsel.

The required adequacy of counsel...can...be determined

only when conducting an evidentiary hearing directed to

the specific issue.

.. The most that can be seen from the record is...ithe attor-

ney)...possibly did as well as any attorney could have done

when the grave responsibility was suddenly thrust upon

him without adequate opportunity for preparation....an

evidentiary hearing must be conducted to determine

whether Lofton was effectively deprived of his Sixth

Amendment rights....we reiterate that to this time, there

has been no hearing in any court in which the accuracy of

the representations made by Lofton and his unprepared

attorney can be tested. Lofton, supra. at 436 (9th Cir. 1973)

(FAL)

In Glassert. US. 315 U.S. 60.(1942) the Court held:

The right to have the assistance of Counsel [of one’s choice!

is too fundamental...to allow courts to indulge in nice cal-

culations as to the amount of prejudice arising trom. its

denial. Glasser. supra, at 62S. Ct. 467 bh A.)

In Chapman v. State of California, 315 U.S. 75. Mr. Justice

Stuart. concurring stated at page $37: .

when a defendant has been denied counsel at trial. we

have refused to consider claims that this constitutional

error might have been harmless. (E.A.) (citing Glasser,

supra)

In Geders v. U.S.. 425 U.S. 80 (1976). this court recognized a

fundamental right to consult with counsel on the night prior to

testifying. with harmless error not applicable.”*

The Court should grant certiorari to delineate the precise test

for prejudice from an arbitrary denial of a continuance to

enable counsel of choice to prepare a defense. for cross-

e\amination. and to call witnesses.

2. The Important Federal Question of the Impact of the

Speedy Trial Act on the Right to Counsel has not Been,

but Should be, Settled by this Court.

The Court has never ruled, whether a strict construction of

the Speedy Trial Act. 18 U.S.C. §3164. may be used to subvert

the right to counsel of choice. In Powell v. Alabama, 287 U-S.

45.(1932). this court said:

It is hardly necessary to savy that, the right to counsel being

conceded, a defendant should be afforded a fair opportu-

24) Mero Lustig was forced to consult the night before testify ing within sight

and hearing of the co-defendants in a crowded jail hallway. «1K 1587) (see

also US. 0) Decoster. 487 F.2d 1197 (D.C. Cir. 1973) (standards of effective

assistance. The jail was severely overcrowded and the subject of a class

action suit for reasonable access to counsel. (TR. 1670, 1587, 1590) TR

\115-73 Cr. 427 76 at 3, 5. 6, 8, 17. 18. and 19 (class action suit filed as

exhibit)

nity to secure counsel of his own choice. 287 U.S. 53. Cited

at Glasser v. US. 315 U.S. 60. 7011942). (FAL)

The Court spoke again In re Groban. 352 U.S. 330. 332

(1957):

\ defendant in a state criminal trial has an unqualified

right. under the due process clause, to be heard through his

own counsel. (F.A.)

The seventh Circuit, in United States v. Seale, 461 F.2d 345

(1972). condemned the failure to make sufficient inquiries into

objections to proceeding to trial without counsel of choice or to

allow for justifiable delay.”

If the Sixth Amendment rights to the effective assistance of

counsel means anything, it certainly means that it is the

actual choice of the defendant which deserves considera-

tion. 461 F.2d at 358. (E.A.)

° - . -- 9

In Mardian, supra, at 546 F.2d 977, Bazelon wrote:*”

in the trial of conspiracy cases involving a number of

de‘endants...the liberal rules of evidence and the wide lati-

tude accorded the prosecutor may, and sometimes do,

operate unfairly against an individual defendant...Glasser

v. U.S., 315 U.S. 60, 76 (1942). The dangers of transference

of guilt are such that the court should use “every safeguard

to individualize each defendant in his relation to the Mass.”

Kotteakos v. U.S., 328 U.S. 750, 774, 773 (1946). See

Blumenthal v. U.S... 332 U.S. 539, 559 to 560 (1948). (E.A.)

The Court should grant certiorari to hold the Speedy Trial

25. See also U.S. v. Mitchell, 354 F.2d 767 (2nd Cir. 1966) Selection of

counsel has special meaning in unpopular causes.

26. Here. as in Mardian, supra, the continuance to enable counsel of choice

to prepare was not due to any fault of counsel as attributable to the defendant.

See also, Releford v. U.S.. 288 F.2d 298. (9th Cir. 1961) (reasonable contin-

uance to guarantee counsel of choice).

,*7

Act. IS LSC. 3164 cannot be perverted to dens one the right

toebfective assistance of cotmnsel ol «¢ bierne eee

D. The Warrantless Seizure of the Opaque Parcel from

Nir. Lustig’s Trock and the Warrantless Search of the

Parcel at Police Headquarters.

1. The Opinion Decides the Important State Question

of the Permissible Scope of an Inventory Search and

Seizure in Contlict with Applicable Alaska Law

and South Dakota \V. Opperman. 428 U.S. 364

(1976).

The opinion incorrectly states the sealing machine was found

during a proper inventory search, pursuant to impounding.

holding the seizure valid under 13 A.A.C. §2.375. and South

Dakota v. Opperman. supra. In Alaska. under Daygee v. State.

314 P.2d 1159 (Alaska, 1973), and 13 A.A.C. 02.350, an in-

ventory search is invalid where an arrestee has means of remov-

ing the vehicle. desires to do so. and there is no contraband in

plain view.

2. The Opinion Decides the Important Federal Question

of a Permissible Warrantless Seizure and Search Pur-

27 See the remarks of Chiet Justice Warren Burger. at the 53rd annual

ineeting of the American Law Institute. paraphrased at 19 Crb. Rpte 2210

1476) to the effect the act is too inflexible. particularly in complex cases

requiring extensive trial investigation and preparation.

2S) Mr Lustig made repeated demands to allow his friends to remove his

vehicle. who were standing by with a boom truck. (Tr. 1345-1345) These

demands were made prior to the search of the opaque brown paper bag con-

tumng the sealing machine. Under South Dakota v. Opperman. supra, an

inventory search by State officers is dependent upon State law and necessity.

\laska Troopers served a Federal warrant to arrest Mr. Lustig. and searched

the bag at Troopers headquarters, thus Alaska law is relevant. See also

\ltman t. State. 19 Cr. Kptr. $82 (91 76) (Ct. of App.. Florida. 7 30 76),

nrpound must be mecessary for inventors search). and United States rv Laask,

V 73 104Cr lL SDC. Alaska | 7 76) inventory on atid if arrestee has means

of remoxing the vehicle under 13 AAC. 02.350) (Appellant’s brief below at

TO Seee ag United States vr Colandra. 414 US. 338.1974)

sant to an Arrest in Direct Conflict with U.S. V.

Chadwick, 97 S-Ct. 2476, 45 LW. 4798 (1977)

The actual discovery of the sealing machine occurred at the

. . LAY)

police station, ~" where a further search of the bag was done by

the arresting officers. Tr. 765. 768).

In Chadwick, supra, the Court held:

“Once law enforcement officers have reduced property not

immediately associated with the person of the arrestee to

their exclusive control, and there is no longer any danger

that the arrestee may gain access to the property to seize a

weapon or destroy evidence, a search of that property is no

longer an incident of the arrést. 97 S.Ct. at 2485. 45 LW.

at 4801.

In our view, when no exigency is shown to support the need

for an immediate search, the warrant clause places the line

[where a warrant is needed] at the point where the property

to be searched comes under exclusive dominion of police

authority. 97 S.Ct. at 2486, 45 L.W. at 4801. (FA)

Since Chadwick, supra, was rendered by this court after the

24 The arresting officer opened the bag. and seized it after seeing the

scale, but did not find the sealing machine until a further search was con-

ducted at Trooper headquarters, after Mr. Lustig’s friends had arrived with a

boom truck to remo. the vehicle, and the officers had refused to allow this

procedure contrary to 13 AAC. 2.350. Since the bag was in the complete

control of the police, and was searched “remote in time (and) in place from

the arrest” Preston v. United States, 376 U.S. at 367 (cited in Chadwick,

supra. at 97 S.Ct. 2485, 45 L.W. 4801), the search was invalid.

30. In Chadwick, supra, as in the instant case, the search occurred ap-

proximately an hour and a half later at the police station, and the property

searched was in the control of the police. While in Chadwick, the police

clearly had probable cause to seize the container, here, since the arrest was

not contemporaneous with the alleged offense. there was no probable cause

to believe that the scales were contraband, or the fruits of a crime, so as to

justify a warrantless seizure, even during the mitial search of the car. See

Lemon v. State, 514 P.2d 1156 (Alaska, 1973), (contemporaneous nature of

offense and arrest gives probable cause for search pursuant to arrest for

evidence. See also MeCoy v. State. 491 P.2d 120 (Alaska. 1971).

instant decision, the Court should grant certiorart to summiarils

}

FN ere

The Denial of Confrontation for Bias and the Denial of

a Two Hour Continuance to Produce a Critical Witness.

The opmion excuses the denial of confrontation on motive for

bias as to Tarnet and Callie Newton. finding said matters

collateral. a

Cross-examination of the most damaging witness, Callie

Newton. was restricted as to whether she was biased due to

financial interest cher civil suit: TR 1988) or due to the influ-

ence by Pha tlis Resnek. her lesbian lover. (TR 2013. 2015).

Counsel was prohibited from confronting the source of hear-

sai statements to the police (ie. 27 phone calls stating Mr.

Lustig was a drug dealer). or producing evidence of Callie’s

bias. (TR 2046, 2058, 2084. 2064) by the denial of a two hour

continuance (TR 2025, 2675. 2081. 2082) to serve a subpoena

310 For other Alaska cases restricting the permissible scope of a search

incidence to arrest. holding that a warrant is needed for further intrusions

occasioned bx ans such search, see Anderson v. State, 555 P.2d 251 (AK

1976). State vo Spietz. 531 P.2d 521 (AK 1975). and Schraff v. State. 544

P 2d $34 AK 1975) For the Alaska counterpart of Chadwick. supra. see

Erickson t. State. 307 P.2d 508 (AK 1973) (warrant needed where closed

contamer in control of the police, despite probable cause). See also United

States +. Martin. 21 Cr. Rptr. 2045, 14.4 77) (D.C. Cir. 1977). (warrant needed

for suitcase despite probable cause). See also Faubion v. United States, 424

F 2d 437. 440 (10th Cir, 1970) and People vr. Marshall, 69 Cal. Rptr. 555,

442 P.2d 665). (warrantless search of closed containers in police custods

unconstitutional)

32. The defense attempted to cross-examine Tarnef as to potential charges

for narcotics. felony murder, perjury, and arson. Several offers of proof were

made as to relevance (TR 1514. 1791. 1792. 1805, 1516, 1517. 1518) For

Tarnet’s histors of lying for hire see “Tarnef v. State. Miranda is Alive and

Well m Alaska’. UCLA-AKA L.R.. Vol. 4. No. 1. See also, Tarnef rv. State.

312 P 24923: AK 1973) and Tarnef v. State, 492 P.2d LO9(AK 1971).

on Pha this Resnek who was ay onmding process (TR 2051) od 6 2

Dutton vo Frans. 400 US. 7401970). Bruton vo US. 3391 US

123 (1968). Lemmon v. State. 514 P.2d 1151 (AK 1973). In

Davis v. State of Alaska. 415 US. 308. (1974) the Court held

motiwe tor bias is never collateral: itis proper to cross-examine

as to motive tor testifying. due to potential or actual pending

charges. See also Evans v. State. 550 P.2d $30 (AK 1976)" In

Hutchings v. State. 518 P_.2d 767 (AK 1974). the court held:

There are no special rules of ‘proper impeachment’ for bias.

The credibility of witnesses is always a material issue.

when exidence is offered to impeach tor bias... fwhere].. the

evidence tends to reasonably demonstrate the existence of

some facts. state of mind. or condition that a reasonable

person would take into account in assessing the credibility

of the witness under attack. ...the balance must be weighed

in favor of admissibility .. 1d. at 769. (FA.

The Court should grant certiorari to establish clearly that

“harmless error” cannot be applied to denial of controntation

for bias or motive. in the face of a clear offer of proof as to

relevance.

33. The Ninth Circuit opinion holds at footnote 7 the continuance was

properly denied since not requested until the defense had rested) The defense

rested early. to accommodate the prosecution and the court. who expressed

concern for Mr. Tarnef’s safety over the coming weekend (TR. 1939. 2021.

1583-1586). Efforts to investigate and locate Mis. Resnek were made from the

time counsel of choice entered the case. (TR 2025-2027). Callie’s testimoms

contained references to hearsay statements by Resnek. The exclusionary rule

for witnesses was violated by a ‘rela,’ by Lee Peterson. former Ass. US

Atty. to Resnek. to Callie. inducing her to testify by a false characterization

of Mr. Lustig’s testimony. (TR. 2014) An offer of proof as to the reles ance of

Phy Ilis Resnek for bias and the source of hearsay was made at TR 2082-2089

34. For cases holding mere possibility of prosecution sufficient for bias see

RL. Ro. State. 487 Pold 27 (AK 1971). and Whitton rv. State. 479 P 2d 302

(AK 1970) (Cndue confrontation restriction reversible per se) See also. Alford

vr €.8.. 282 US. 687 (1931). Hughes vo US. 427 F.2d 66 (9th Cir, 1970)

(undue restriction on controntation as to fear of possible prosecution)

FE The Refusal to Allow an Individual Poll as to Each

Count Where the Petitioner had Admitted One Count

in his Testimons

Despite the petitioner admitting one count (Count \. posses-

sion! in his defense. the Court denied a specitic request for an

indis idual poll as to each count. >

The Court: Do vou wish the jury polled?

Mir. Weidner: Your Honor, | would request an individual

poll at this time.

The Court: | would ask that the jury be polled in the usual

way.

Mir. Weidner: | would ask that the jury be polled as to each

count.

The Court: Ladies and gentlemen, the clerk will call the

roll. If the verdict that was read was a true verdict vou will

answer “ves. If it is not. answer otherwise. (TR 2249).

(kA.

This constitutes blatant refusal of the constitutional and

statutory right to “look the jury in the eve” as to each count.”

The Ninth Circuit opinion, cites Shibley v. U.S.. 237 F.2d 327.

334 (9th Cir. 1956). cert. denied, 352 U.S. $873 (1956). as

authorits for its holding without indicating that in Shibley.

supra. the issue was raised as a result of a clerical error, was

mooted on appeal. and there was no objection below.

While generally. the cases reversing for deficiency in the poll

33 The Court “reminded” defense counsel it was unnecessary to take

“exception” to error to preserve it) The jurors had been asked juror by juror

as to the combined counts for each co-defendant: thus an “individual poll

had to mean an indi idual poll as to each count.

3) While the other circuits, or the Court, have never been squarely faced

with this issue. all hold that there is a common-law and statutory right to a

poll of the purs. Humphries v. District of Columbia, 174 U.S. 190 (1899), and

a denial of said poll constitutes reversible error. See generally United States v.

Edwards. 469 F 2d 1362 (5th Cir 1972): US. v. Sexton, 456 F.2d 961 (Sth

Cur 1972)

have been those where some contusion was manifested.) since

the purpose is to “ascertain tor a certainty that each of the juror

approves of the verdict as returned: that no one has been

coherced or induced to sign a verdict to which he does not fulls

assert”. Humopries. supra. the Court should grant certiorari to

adopt a per se rule for reversal where there has been an inten-

tional denial of the right to a poll as to each count of a multiple

count indictment.”

G. The Arbitrary Refusal of the Right to be Present. or a

Record, at the Communication with and Excusal of a

Juror.

The opinion excuses the intentional denial of the right to be

present, or to a record, by holding that hearings are unneces-

sary on question of fitness, in-camera inquiries are permissible,

. . 4

and no prejudice was shown.

37. See Williams vo US. 419 F.2d 740 1970). US. 0. Edwards. supra:

(Sot. Sexton, 456 F.2d 961. 5th Cir, 1972) Mr Lustig was prevented trom

demonstrating the fact that one juror wished to reputiate some of the counts

during the poll, by the denial of the indis idual poll. See paragraphs 5, 6, 7 and

$ of the affidavit of defense counsel of May 19, 1976 (R. 626) where an offer

of proof was made to this effect.

3%. The defendant specifically requested separate verdicts as to each count

with spaces for signatures of the individual jurors. (TR. 2116) See Posey v.

U.S.. 416 F.2d 545, 553 (5th Cir. 1969. For the roll of the poll in resolving

confusion see U.S. v. Farries, 328 F.Supp. 1074 (6th Cir. 1971) (Poll as to

each count of a seven count indictment), U.S. v. Visuana, 395 F Supp. 352

(1975) (individual poll: not guilty in Count |: guilty in Count I}, U.S. rv.

Lockhart. 366 F Supp. $43 (D.C. Penn 1973) affirmed 495 F.2d 1369

(uncertainty during poll resolved by further poll) See also Lee v. State, 509

P.2d 1088 (Alaska 1973) (right to be present at return of verdict encompasses

common-law right to look the jury in the eve). See also, Rule 31d) of the F. RB.

Crim. P. for right to poll jury as to verdict and 18 U.S.C. §§3771 and 3772.

39. The opinion claims the dismissed juror dis ulged information making

him believe the appellant was guilty. This was never established: the trial

judge simply made unsworn conclusionary implications he thought the juror

would be unfair. Mr. Lustig requested a hearing to argue to the judge as to

the juror’s fitness, and preserve the record for appeal.

The cases cited are improperly cited, or are clearly distin

guishable. U.S. rx~Domenach. 475 F.2d 1229. 1232 (2nd Cir.

1973) dealt with Mismissal for cause (absence) manifest. to

counsel for defendant. U.S. v. Cameron, 464 F.2d 333, 335 (7th

Cir.) presented disability manifest in open court (falling asleep).

U.S.v. Crisona, 416 F.2d 107, 119 (2nd Cir. 1969), miscited by

the instant decision to avoid the right to be present issue. relied

on absence of objection or demand for hearing. U.S. v.

Houilhan. 332 F.2d $13 (2nd Cir. 1964) relied on exigent

circumstances foreclosing an evidentiary hearing.*” See also,

1S. rv. Woodner. 217 F.2d 649, 652 (2nd Cir. 1963) (necessity

for hearing and record). To date court orders prohibit defense

inquiry of the juror as to what occurred in chambers or what he

indicated to the other jurors. U.S. v. Goodman, 457 F.2d 68,

73. is miscited since it relied on an evidentiary hearing to cure

any possible prejudice. It is likewise. error for the decision to

hold that Mr. Lustig approved of the alternate, to attempt to

avoid the issue as harmless error.” !

1. The Opinion is in Conflict with the Other Courts of

Appeals, and this Court with Regard to the Right to be

Present at Critical Stages of the Proceedings Including

Communications with the Jury.

Rule 43. of the F. R. Crim. P. provides:*”

The defendant shall be present at the arraignment, at every

40. Here. no extrigent circumstances existed: both Mr. Lustig and counsel

were demanding a hearing.

41. The petitioner reserved one preemptors challenge as to the trial jurors

The petitioner did exhaust peremptory challenges with regard to the alter-

nates. and the reservation of the one perempt for the trial jurors was to avoid

seating the juror Scott. (ic. the alternate eventually seated over objection).

(TR. at 130). See Petitioner Lustig’s Replys Brief in 76-2661 at page 4-6, for a

full explanation of the jury selection procedure in the U.S. District Court for

Alaska

stage of the trial including the empanneling of the jury and

the return of the verdict ..AF.A.)

This right existed at common-law in the form of a defendant's

privilege of presence, and is grounded in the Sixth Amendment

to the U.S. Constitution??? and Article 1. $11 of the Alaska

Constitution.**

While the Court has stated that the right “deals with the rule

of common-law and not with constitutional constraints”,

Snyder v. Commonwealth of Mass.. 78 L.ed 674 (1927), the

lower Federal courts have often found it based on the con-

stitution.

In delineating the important purpose of the rule the Court has

stated:

A leading principal that pervades the entire law of criminal

procedure is that after the indictment is found, nothing

shall be done in the absence of the prisoner. Lewis v. U.S..

146 U.S. 370, 372 (1882), (E.A,).

In, U.S. v. Arrigada, 451 F.2d 487 (4th Cir. 1971), cert.

denied 405 U.S. 1018 (1972) the court recognized Rule 43

applies to:

“proscribe any communication by [the] court with the jury,

whether before or after it has begun its deliberations, with-

out the presence of the defendant (and) is a salutary

provision which should be scrupulously observed by trial

judges. (F.A.)

42. See also AK R. Crim. P. 38, encompassing the same language.

43. See $2 Moore's Fed. Pract. §43.02. pg. 43-3: and see Brown v. State.

372 P.2d 785, 785, at footnote $ (AK 1962) (Sixth Amendment Origins).

44. Brown v. State, supra, at footnote 9.

45. See Wright, Federal Practice and Procedure, Crim., Section 721, p.

193 and citations at footnote 3 therein.

In U.S. 0. Chrisceo. 493 F.2d 232. (CLA. Mo. 1974) cert.

demed 419 U.S. S47 it was noted that the:*”

process for impaneling a jury. during which this rule

ensures defendant's presence encompasses all steps of se-

lecting a jury. including peremptory striking of members

of the venire. (FLA.

LS v. Miller, 463 F.2d 600, (1st Cir. 1972) cert. denied 409

U.S. 956 (1973). noted that the challenging of prospective

jurors is an essential part of the trial.

The decision ignores the point that Mr. Lustig was denied not

only his right to be present during the judge's questioning in-

chambers of the juror, but his right to an evidentiary hearing

under oath as to the alleged prejudice, or the contact with the

juror.’

In Abbot v. Mines, 411 F.2d 357 (5th Cir. 1969),*° the court

recognized the folly of requiring a showing of prejudice from an

intentional interference with rules drafted to guarantee the

preservation of a record as to said prejudice. Metropolitan

Paving Company v. Int Union of Op. Eng., 439 F.2d 300, 304

46. The cites to Arrigada, supra, and Chrisco, supra, are paraphrases of

the language of said cases appearing at footnotes 17 and 21 to Rule 43 of the

o abode

+7. See FOR. Crim. P. 26 (testimony taken in open court), F. R. Evid, 603

ioath or affirmation). F. R. Evid. 605 (judge not a competent witness)

4%. See also. Wade v. US.. 441 F.2d 1046 (D.C. Cir. 1971) (standard for

reversal from the denial of presence is any possibility of prejudice),

VeKissick v. U.S., 379 F.2d 762 (5th Cir. 1967) (record must demonstrate

lack of prejudice bevond a reasonable doubt.) U.S. rv. Crutcher. 405 F.2d

339. 244 (2nd Cir. 196%) (denial of right to be present during voir dire jury

selection cannot be harmless error), Ware v. U.S.. 376 F.2d 717, 721 (7th

Cir 1967). Jones v. U.S., 299 F.2d 661 (Oth Cir, 1962). Parker v. U.S., 184

F 2d 48%. 490 (4th Cir. 1950). Arlington v Robertson, 114 F.2d $21 (3rd

Cir, 1940) «civil. Fina +. US... 46 F 2d 643, 644 (10th Cir. 1931) Cright to be

present linked to Fitth and Sixth Amendments.)

recounized that Abbot held the controlling issue is not whether

a party can actially show prejudice by the failure to follow said

rules. but whether the adopted precedure tends to weaken the

institution ob a jury trial

The arbitrary denialot both presence. or a record under oath,

coupled with a specitic order prohibiting any contact with any

juror. precludes an effective showing of prejudice. such that this

Court should grant certiorari to lay down a rule of per se

reversal for such conduct.

2. Certiorari Should be Granted Since the Opinion Sance-

tions the Departure by the Trial Court trom the Accepted

and Ustal Course of Judicial Proceedings so as to Call

for an Exercise of this Court’s Power of Supers ision.

In addition to intentionally denying the right to be present at

either of the communications with the juror, the trial court

prohibited an evidentiary hearing or record as to the contacts.*”

This misconduct denied the defense the right to examine the

excused juror as to communications of bias to other jurors. the

right to argue to the judge as to whether the juror should have

been excused, the right to a record of the reasons for the excuse.

and the right to an oath given by competent witnesses. In addi-

tion. it violated several judicial cannons. and established rules

of criminal procedure.

49 After the first in-chambers contact. the judge specifically denied the

request on the record to be present. and conducted further proceedings in-

chambers without a record being made, (TR 330) and then specificalh

torbade any defense contact with the excused juror (TR 330) (R. 637). or an

evidentiary hearing. The actual excuse of the juror occurred in-chambers,

absent the defendant or counsel (TR. 32S) By written motion for mistrial.

the pudge was again on notice the following day as to the error. (R. 317-320)

40) See FOR. Crim. Po 26 (testimony in open court), FOR. Evid. 603 (oath

or affirmation) FR. vid) 605 (adge not competent witness). FOR. Crim. P

43 iright to be present). Cannon Jud. Ethics No 22 tright to record

\ppendis c. intra.

‘Thos Court should grant certiorart to establish cleark that an

the

Hbsemoe of exigent Circumstances. ex-parte contact with a

and tiabateral decisions by the judge. cannot be condoned

VIL SUMMARY AND CONCLUSION

The equal protection. due process, and privacy aspects of the

common-law marital relationship. are of such substantial cur-

rent importance that this Court should rule that the protection

of Rule 501 attaches

The Ninth Circuit decision presents a substantial threat to the

concept of proof bevond a reasonable doubt and directly con-

flicts with the Filth Circuit

The Petitioner was denied his right to effective assistance of

counsel. and bis right to cross-examine and confront his accu

sers. and to Call ttnesses

United States v. Chadwick. supra. rendered after the instant

decision. holds a search of the type upheld by the Ninth Circuit

is unconstitutional

The intentional denial of the right to poll the jury. to be

present. orto have a record. and the communication with. and

excuse of. a juror. denied the constitutional right to a jury trial

and due process

Accordingly. this Court should grant the Petition for a Writ

of Certiecart to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered in these

proceedings, and should reverse both the Ninth Circuit and the

District Court.

DATED at Anchorage. Alaska. this J2° dav of Se ptember

- w, rey

Me LIP P. WEIDNER

Attornes for Petitioner.

CGRORGE H. LUSTIG

Drathman, Weidner & Bryson

333 West Fourth Avenue. Suite 35

Anchorage. \laska 99501

CEREIPICATE OF SERVICE BY MAI

lhherebs certehy that pursuant to Rule 22h) Rule 33 0b Rule

Se20d) and Rule 33:30. of the Supreme Court) Rules of

\ppellate Procedure that Ta: a member of the Bar of the LOS

Stipreni Court ui good stunding. and that three COp TES ont thee

foregome Petition tor \ Writtol Certrorart to the COS Court of

\poyo als for the Nonth Circuit were served ipon commsel for the

Respondent by depositing the same an the United States maul at

Wir horage \haska }™ whage pre pad, addressed to

Nir) Kent Fdwards

L SNS) \ttornmes

OOS West boourth As ene

Vnchoragwe. \Vhaska 9950]

and further. that three copies of the foregomye Petition for \

Writ of Certiorant to the US. Court of Appeals for the Ninth

Circiit was served upon the Solicitor General of the United

States by depositing the same om the United States mail at

Vnchorage \Vlaskal postage pre-paid. addressed to

Soliitor General

Department of Justice

Woaashimeton. DC. 20530

and further. that three copies of the foregoing Petition for A

Writ of Certiorari to the US. Court of Appeals for the Ninth

Circuit were served upon counsel tor both co-defendants in the

instant proceedings below. by depositing the same in the United

States mathat) Anchorage, Alaska. postage pre-paid. addressed

\Ir bP. Petty john (ceorge L. Schraer

H31 "T° Street 2715 Hillegass Avenue. #4

Vnchorage. Alaska 9950] Berkeley. California 94705

\ttornes for George D Attornes for Chery | Rae

Pederson Pederson

Ive Pat Nin leone \oaskas thirs /2 aban of Septerabye !

1%,.

PHILLIP P. WEIDNER

\ttornes for Petitioner

(ceorge EL Laastig

APPENDIN A — OPINION OF THE NINTH CIRGCUTI

IN NO. 76-2-661.U.S. V. LUSTIG. et al.

‘UNITED STATES of America,

Plaintiff-Appellee,

v u ag , v. :

George H. LUSTIG,

Defendant-Appellant.

m UNITED SJATES of America,

™.___._Puaintiff-Appellee,

Gregory D. PEDERSON,

Defendant-Appellant.

Nos. 76-2661, 76-2752.

United States Court of Appeals,

Ninth Circuit.

June 15, 1977.

Defendants were convicted before

the United States District Court for the

District of Alaska, James A. von der

Heydt, Chief Judge, of distribution of a

controlled substance and conspiracy to

distribute a controlled substance, with

one defendant also being convicted of

possession of a controlled substance, and

they appealed. The Court of Appeals,

James M. Carter, Circuit Judge, held

that: (1) denial of continuance, which

was requested by newly obtained counsel

some four days prior to trial, was not

abuse of discretion; (2) in camera excu-

BEST COPY AVAILABLE

sal of juror and his replacement with

approved alternate was not prejudicial;

(3) probable cause was not required for

postarrest inventory search of defend-

ant’s truck; (4) neither the “anti-marital

facts” privilege nor the “confidential

marital communications” privilege

barred admission of testimony of defend-

ant’s former common-law wife as to her

observations of defendant’s engaging in

drug transactions with third parties and

(5) district court did not erroneously cur-

tail cross-examination of informant.

Judgments affirmed.

1. Criminal Law <641.12(1)

Failure to grant continuance, which

was sought some four days prior to trial,

did not deprive defendant of effective

assistance of counsel since although de-

fendant did not obtain substitute counsel

until day of motion, defendant had over

a month after original counsel’s motion

to withdraw within which to obtain new

counsel and it was unlikely that defend-

ant would be unable to find willing

counsel, there were no prejudicial factors

and record revealed extensive and com-

petent argument and cross-examination

by counsel in the relatively uncomplicat-

ed case; although it was arguable

whether new counsel should have been

granted more time, there was no abuse

of discretion.

2. Criminal Law 586

Court-imposed freeze on defendant’s

assets could not be found to have pre-

vented him from hiring new counsel, for

purpose of determining whether denial

of continuance sought by new counsel

some four days prior to trial was abuse

of discretion, since freeze was for limited

purpose of insuring that defendant

would not flee and freeze would not

have prevented payment of an attorney

if request had been made; in any event,

defendant was of substantial means and

new counsel immediately rented an of-

fice and hired a secretary, investigator,

res-arch assistant and another attorney

to work on the case.

3. Criminal Law <=586

Trial court has wide discretion to

grant or deny continuances.

4. Criminal Law @593, 1168(8)

Actual prejudice must be shown be-

fore a trial court’s denial of continuance

will be reversed; moreover, a court must

be wary against the “right of counsel”

being used as a ploy to gain time or

effect delay.

5. Criminal Law 1138(2)

Court of Appeals may review the

record to determine the adequacy of rep-

resentation and possible prejudice from a

denial of a continuance.

6. Criminal Law 573

Speedy Trial Act allows 90 days

from arrest within which to bring a de-

fendant to trial; moreover, delays attrib-

utable to defendant are not counted. 18

U.S.C.A. § 3164.

7. Criminal Law <649(2)

Denial of continuance to enable de-

fendant to call witness to allegedly es-

tablish that defendant’s common-law

wife was motivated by revenge in testi-

fying against him was not abuse of dis-

cretion since request came after defense

rested its case and could not be said to

be a product of anything except lack of

due diligence; moreover, testimony

would have been cumulative and margin-

ally relevant.

8. Jury 133

A judge may dismiss a juror for

cause without a hearing; likewise, the

court is not required to hold hearings on

questions of fitness; in camera inquiries

are sufficient.

9. Criminal Law 1163(2)

Reviewing courts will not presume

prejudice where the trial judge removes

a juror.

10. Criminal Law <636(1)

Failure to hold hearing prior to dis-

missing juror who, under oath, revealed

that he possessed information about the

case which made him believe that de-

fendants were guilty did not violate de-

fendant’s right to be present at all crit-

ical stages of a proceeding especially

since excused juror was replaced with an

alternate, who had previously been ap-

proved by defendants; to have retained

the juror would have been prejudicial.

11. Criminal Law 1166.16

Objection that excusal of a venire-

man who failed to take the oath prior to

voir dire was prejudicial error, apparent-

ly because of some vague religious

grounds, was frivolous; there was no in-

dication that the venireman’s failure to

take the oath had anything to do with

religious grounds and, in any event, the

excusal did not violate defendant’s

rights.

12. Criminal Law @874

Where on being polled as to whether

a true verdict had been announced each

juror answered in the affirmative, trial

court did not abuse its discretion in re-

fusing defendant’s request to poll the

jury as to each of the four counts since

such procedure would have been need-

lessly repetitious; however, defendant

would have had a valid objection had one

or more jurors expressed some uncer-

tainty as to the verdict.

13. Criminal Law 874

Jury polling is a matter for the dis-

cretion of the court.

14. Criminal Law <875(1)

Trial court, in drug prosecution, was

not required to use jury form in which

there was a place for each juror to sign

after each count of the indictment; in

fact, forms do not even have to be used

and, where they are, any reasonable

form will suffice. Comprehensive Drug

Abuse Prevention and Control Act of

1970, §$ 401(a)(1), 404, 406, 21 U.S.C.A.

§§ 841(a)(1), 844, 846.

15. Criminal Law <956(1), 957(1)

Where no dissent or uncertainty is

demonstrated in court, testimony will

not be received from jurors or others

regarding the verdict itself.

16. Criminal Law @956(1)

Defendant could not be heard to at-

tack verdict on ground that after verdict

was received a juror had repudiated it,

especially where party who allegedly

overheard the repudiation was not re-

vealed and record did not reveal any un-

certainty or disagreement with the ver-

dict by any juror.

17. Drugs and Narcotics 183

A “seal-a-meal” bagging machine

and unused “seal-a-meal” bags and drug-

weighing scales obtained on inventory

search of contents of defendant’s truck

prior to its impounding following his ar-

rest were properly seized and used as

evidence in drug prosecution; probable

cause for such search was not required.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 401(a)(1),

404, 406, 21 U.S.C.A. §§ 841(a)(1), 844,

846.

18. Searches and Seizures <3.8(1)

Search warrant for defendant’s

house was not invalid on ground that it

did not contain sufficient information to

be a “night time warrant” where search

occurred at 9 PM, an hour before the

“night time” requirement begins; more-

over, government did not introduce any

fruits of such search during its case in

chief.

19. Constitutional Law <=82

Use of defendant’s telephone records

as evidence in drug prosecution did not

violate his right to privacy since the “ex-

pectation of privacy” only extends to the

content of telephone conversations and

not to records that conversations took

place. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970,

§§ 401(a)(1), 404, 406, 21 US.C.A.

§§ 841(a)(1), 844, 846.

20. Witnesses 54, 188(1)

Federal courts recognize two distinct

privileges arising out of the marital rela-

tionship; the first, referred to as the

“anti-marital facts” privilege, bars one

spouse from testifying against the other

and permits either spouse, on objection,

to exclude adverse testimony by the oth-

er; the second privilege protects “confi-

dential marital communications” and

bars testimony concerning interspousal,

confidential expressions arising from the

marital relationship. Federal Rules of

Evidence, rule 501, 28 U.S.C.A.; Fed.

Rules Crim.Proc. rule 26, 18 U.S.C.A.

21. Witnesses <64(1), 195

The “anti-marital facts” privilege is

what remains of the old common-law

rule that a spouse was incompetent as a

witness for or against the other spouse

based on the legal fiction that the hus-

band and wife were one person; hence,

such privilege does not survive the ter-

mination of the marriage; however, the

“confidential marital communications”

privilege survives termination of the

marriage. Federal Rules of Evidence,

rule 501, 28 U.S.C.A.; Fed.Rules Crim.

Proc. rule 26, 18 U.S.C.A.

22. Witnesses 63, 189

Neither “anti-marital facts’ privi-

lege nor “confidential marital communi-

cations” privilege prevents introduction

of testimony of defendant’s common-law

wife as to defendant’s drug dealings

since both privileges depend on existence

of a valid marriage, as determined by

state law and, under Alaska law, com-

mon-law marriage is not valid. Federal

Rules of Evidence, rule 501, 28 U.S.C.A.;

Fed.Rules Crim.Proec. rule 26, 18 USS.

C.A.; AS 25.05.011, 261, 311.

23. Witnesses 63, 189

Even if equal protection requires

that marital privileges be extended to

ceremonial as well as common-law mar-

riages, regardless of whether common-

law marriages are recognized by state

law, such proposition would not have

aided defendant, complaining of admis-

sion of testimony of common-law wife,

since as to the “anti-marital facts” privi-

lege the record revealed that marital re-

lationship had been terminated with no

chance of reconciliation and the “confi-

dential marital communications” privi-

lege would have been equally unavailing

since “wife’s” testimony concerned mat-

ters neither communicative nor confiden-

tial, in that most of her testimony relat-

ed to observations of defendant’s engag-

ing in drug transactions with third par-

ties. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970,

§§ 40l(a)(1), 404, 406, 21 U.S.C.A.

$§ 841(a)(1), 844, 846; Federal Rules of

Evidence, rule 501, 28 U.S.C.A.; Fed.

Rules Crim.Proec. rule 26, 18 U.S.C.A.:

AS 25.05.011, 261, 311.

24. Witnesses 191, 193

The “confidential marital communi-

cations” privilege applies only to utter-

ances or expressions intended by one

spouse to convey a message to another;

even if one spouse’s acts are held to con-

stitute “communications” the privilege is

not extended to communications made to

or in presence of third parties since they

are not intended to be _ confidential.

Federal Rules of Evidence, rule 501, 28

U.S.C.A.; Fed.Rules Crim.Proc. rule 26,

18 U.S.C.A.

25. Witnesses 191

Acts do not become privileged com-

munications, for purpose of the marital

communications privileges, simply by be-

ing done in the presence of a spouse.

Federal Rules of Evidence, rule 501, 28

U.S.C.A.; Fed.Rules Crim.Proc. rule 26,

18 U.S.C.A.

26. Criminal Law <663(4)

Even if testimony of defendant’s

common-law wife violated sequestration

order, receipt of sach testimony was a

matter falling within the trial court's

discretion.

27. Witnesses =331' |

Extent of impeachment is commit-

ted to the trial court’s discretion; such

court must determine whether the pro-

bative value of the evidence is out-

weighed by the danger of confusion,

prejudice, or waste of time; trial court's

determination will not be reversed ab-

sent a showing of abuse. Federal Rules

of Evidence, rules 403, 608(b), 28 U.S.

C.A.

28. Witnesses @=372(2)

Alleged curtailment of defense coun-

sel’s cross-examination of informant re-

garding his possible involvement in sev-

eral criminal activities was not abuse of

discretion since counsel was able to make

a broad inquiry into informant’s credibil-

ity and possible bias and, among other

things, inquired as to his agreement with

the police and whether he had received

any termination of probation or parole

as a result of his testimony and as to

whether he had lied in other proceedings.

Federal Rules of Evidence, rules 403,

608(b), 28 U.S.C.A.

29. Witnesses @270(1)

Where defense counsel often strayed

from relevancy in his exhaustive cross-

examination of police officers, it was not

error for the trial court te lead him back

to it. Federal Rules of Evidence, rules

403, 608(b), 28 U.S.C.A.

30. Criminal Law <=339.7(1)

The 30 seconds to one minute in

which undercover detective viewed indi-

vidual from whom his immediate seller

obtained drugs was not inadequate for

later identification from pretrial photo-

graphic display, which occurred two

hours after cocaine sale, since the detec-

tive was a good witness in terms of his

likely ability to observe and remember

the scene and his identification was veri-

fied by that of three other persons who

saw defendant for longer periods; fur-

thermore, there also was substantial cor-

roborative evidence supporting convic-

tion. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970,

g§ 401(a)1), 404, 406, 21 U.S.C.A.

§§ 841(a)(1), 844, 846.

31. Criminal Law @412(5)

Evidence of defendant’s statement,

“You are not going to pin that on me,”

which statement was made after police

discovered a bag of cocaine in the police

car near defendant after his arrest, was

admissible for purpose of showing that

defendant knew the bag contained co-

caine where defendant was advised of

his rights immediately on arrest and

statement was made several minutes

thereafter; likewise, various statements

made by defendant at time of booking

were also admissible. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, §§ 401(a)(1), 404, 406, 21 U.S.

C.A. §§ &41(a)(1), 844, 846.

32. Witnesses <—301

Codefendant, who took stand to ad-

vance defense of entrapment, was not

denied right against self-incrimination

because he was compelled to tell from

whom he had obtained the drugs, on the-

ory that since he failed to identify de-

fendant as his source and defendant was

nevertheless convicted the codefendant

had lost his credibility and was thereby

incriminated, where prior to cross-exami-

nation counsel for defendant has asked

codefendant about any meetings or deal-

ings between the two; hence, line of in-

quiry had been opened and government

was merely pursuing it and, further-

more, evidence of conspiratorial activity

would refute entrapment defense. Com-

prehensive Drug Abuse Prevention and

Contro!| Act of 1970, §$§ 401(a)(1), 404,

406, 21 U.S.C.A. §§ 841(a)(1), 844, 846.

A defendant has no right to give

testimony without laying himself open to

cross-eXamination on that testimony.

34. Drugs and Narcotics 104

Failure to republish schedules listing

cocaine as a controlled substance was not

fatal to drug indictment. Comprehen-

sive Drug Abuse Prevention and Control

Act of 1970, $8 401{a)(1), 404, 406, 21

U.S.C.A. §§ 841(a)(1), 844, 846.

35. Drugs and Narcotics 108

Trial court, in drug prosecution, did

not err in refusing to hear evidence

about the pharmacological nature of co-

caine; since defendant presented de-

tailed motions to the court discussing the

nature of cocaine it would have been a

waste of time to hear extensive testimo-

ny on such marginal issue. Comprehen-

sive Drug Abuse Prevention and Control

Act of 1970, §§ 401(a)(1), 404, 406, 21

U.S.C.A. §§ 841(a)(1), 844, 846.

36. Drugs and Narcotics <=46

Cocaine is not improperly classified

as a controlled substance on ground that

it is relatively harmless. Comprehensive

Drug Abuse Prevention and Control Act

of 1970, §§ 401(a)(1), 404, 406, 21 U-S.

C.A. §§ 841(a)(1), 844, 846.

37. Criminal Law c>700

Federal Courts <—404

Conviction was not required to be

overturned on ground that prosecutors

improperly “forum-shopped” for the best

court in which to obtain drug conviction,

notwithstanding cooperation between

state and federal officers, since a federal

warrant was obtained for defendant’s ar-

rest and he never was indicted by the

state: furthermore, when in _ federal

courts, federal law and procedures apply

and, hence, state law was not relevant.

Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 401(a)1),

404, 406, 21 U.S.C.A. §§ 841(a)(1), 844,

846.

38. Conspiracy @47(1), 48.2(1)

Once existence of a conspiracy is es-

tablished, only slight evidence is required

to connect any defendant with it; hence,

instruction that very little evidence is

necessary to show that a particular de-

fendant was part of the conspiracy was

a correct statement of the law. Compre-

hensive Drug Abuse Prevention and

Control Act of 1970, § 406, 21 U.S.C.A.

§ 846.

39. Criminal Law @=775(2)

Requested alibi instruction was

properly refused where none of the evi-

dence revealed any alibi; had such in-

struction been given it would have been

merely misleading and, in any event,

even if defendant presented evidence of

an alibi, it would not have rebutted the

Government’s evidence since presence

need not be shown to prove conspiracy

and evidence of extensive telephone calls

between codefendants would have been

sufficient. Comprehensive Drug Abuse

Prevention and Control Act of 1970,

§ 406, 21 U.S.C.A. § 846.

40. Criminal Law 826

Under Rules of District Court for

the District of Alaska, defendant’s re-

quested instructions were untimely

where filed the very day that instruc-

tions were given; even if trial court

erred in refusing to give requested in-

structions, the error would have been ex-

cusable in light of the tardiness. U.S.

Dist.Ct.Rules Alaska, General Rule 15.

41. Criminal Law 986

Whether trial judge considered de-

fendant’s allegedly perjured testimony in

sentencing was irrelevant to validity of

sentence imposed since a judge may con-

sider the candor of the defendant on the

stand in passing sentence.

42. Criminal Law @1147

Court of Appeals will not review a

sentence absent some extraordinary cir-

cumstance.

43. Criminal Law c655(5), 1166.22(3)

Since jury had retired from court-

room when trial judge allegedly improp-

erly commented that he found counsel’s

questions to be “marginally relevant” no

prejudice was possible; in any event, tri-

al judge is vested with power to com-

ment fairly to the jury.

Appeal from the United States Dis-

trict Court for the District of Alaska.

Before CARTER, TRASK and KEN-

NEDY, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This is an appeal from jury convictions

for distribution of a controlled substance

(cocaine), in violation of 21 U.S.C.

§ 841(a)(1), and conspiracy to distribute

a controlled substance, in violation of 21

U.S.C. § 846. Appellant Pederson was

also convicted of possession of a con-

trolled substance, in violation of 21

U.S.C. § 844.

Appellant Lustig has raised numerous

contentions. In particular, he argues

that the judge improperly dismissed a

juror, that he should have been granted

a continuance after he obtained new

counsel, and that the testimony of his

common law wife was received in viola-

tion of the marital privilege. Appellant

Pederson argues only that his right

against self-incrimination was violated

by being forced to answer certain ques-

tions on cross-examination.'! Finding

none of these claims meritorious, we af-

firm.

FACTS

Appellant Pederson met undercover

pelice detective Bernard Lau on Febru-

ary 27, 1976, in order to sell him an

ounce of cocaine. The meeting was ar-

ranged by Mike Tarnef, a local dealer

turned informant. Prior to this meeting,

Pederson picked up a small package (pre-

sumably containing the cocaine) from a

man identified by four police officers as

appellant Lustig. Pederson told Tarnef

that his “man”, or narcotics source, was

Lustig.

After the February 27 meeting, Peder-

son told Lau that more drugs were avail-

able for purchase. Pederson telephoned

Lustig immediately after this conversa-

tion. (Telephone records indicate exten-

sive communications between Pederson

and Lustig.) Lau gave Pederson and his

wife (and co-defendant) Sherri Pederson

some money the next day to buy the

1. Appellant Pederson does, however, adopt the

arguments of Lustig on appeal, as is his right

under Fed.R.App.P. 28(i).

drugs and to repay a debt Pederson said

he had with his source. It was estab-

lished that Pederson owed money to Lus-

tig.

Prior to the second meeting with Lau,

the Pedersons drove out to Lustig’s

home located in Wasilla. Their vehicle

rendezvoused with another near Lustig’s

home and then returned to Anchorage.

The Pedersons then went directly to the

meeting with Lau and sold him another

ounce of cocaine.

Appellants were arrested on March 11.

Lustig was stopped near his home while

driving a truck. It was searched for

inventory purposes, and a “seal-a-meal”’

bagging machine later identified as the

same used for packaging the cocaine sold

to Lau was found.? The truck also con-

tained an unused “seal-a-meal” bag and

drug-weighing scales.

Lustig was informed of his rights and

placed in a police car. Enroute to the

federal marshal, the arresting officers

found two ounces of cocaine in Lustig’s

possession. Lustig had attempted to

2. Experts testified that the “seal-a-meal’’ bag

was a unique packaging method for cocaine.

Tests conducted on the device found in Lus-

tig’s truck showed that it left a characteristic

marking on the bags it sealed identical to that

on the bags sold to Lau and to a bag found in

Lustig’s possession on the day of his arres<.

conceal this cocaine under the rear seat

of the car.

Appellants were indicted (in a su-

perseding indictment) on March 24.

Lustig initially was represented by attor-

ney William Fuld, who handled the ar-

raignment proceedings and filed numer-

ous pretrial motions on Lustig’s behalf.

The district court, informed that Lustig

might attempt to post bond and then

flee, froze Lustig’s assets and restrained

Lustig from disposing of his assets. In

the meantime, Lustig was rearrested on

a prior Alaskan drug offense on a peti-

tion to revoke probation and held with-

out bail.’

Lustig obtained new counsel four days

before the scheduled trial date. The

court had urged Lustig, a month earlier,

to finalize arrangements with an attor-

ney to insure proper representation.

The new counsel made an unsuccessful

3. Lustig characterizes himself as a “political

activist who has incurred the wrath of the

United States government.” He was convicted

in 1968 for possession and distribution of mar-

ijuana. He was peripherally involved in the

litigation which ended with the Alaska Su-

preme Court declaring that possession of mari-

juana for personal use was constitutionally

protected. See Ravin v. State, 537 P.2d 494

(Alas.1975). However, Lustig neither specifi-

cally argues nor makes out a claim of official

harassment.

motion for a continuance, and then peti-

tioned this court for a writ of mandamus

or prohibition staying the trial in order

to provide more preparation time. This

petition was denied on April 26, 1976.

Trial began on April 27. After one

day of testimony, the court informed

counsel that one juror had been excused

because he admitted prejudicial knowl-

edge about the case. A motion for mis-

trial because of this excusal was denied.

Lustig testified in his own behalf. He

said he felt it was an infringement on

his liberty for the government to pro-

scribe the use of cocaine. He admitted

to possession of the drug, but said it was

for his own use. He denied that the

sealing machine and other paraphernalia

belonged to him. Lustig also claimed

that the police were mistaken in their

identification of him as the supplier of

the drugs to Pederson.

Pederson also testified in his own be-

half. He admitted participating in the

February 25 and March 4 transactions,

but claimed entrapment. He denied that

Lustig was the man who supplied him

with the cocaine.

The government called Lustig’s com-

mon law wife, Callie Newton, as a rebut-

tal witness. She testified there was a

verbal agreement between Lustig and

Pederson to distribute cocaine. Lustig

objected on the ground that this testimo-

ny violated his marital privilege. The

district court allowed the testimony be-

cause Alaska law does not recognize the

validity of common law marriage. Lus-

tig claims that Newton’s testimony was

given because of a desire for revenge

arising out of certain unrelated events.

The defense sought a continuance during

trial to subpoena an independent witness

to establish Newton’s improper motives.

This request was denied.

After 12 hours of deliberations, the

jury returned verdicts of guilty on aii

counts. Motions by Lustig for different

verdict forms and for individual polling

of jury members on each count were de-

nied. Lustig was sentenced to nine

years; Pederson received seven. This

appeal followed.

MOTIONS FOR CONTINUANCES

[1-7] Lustig was represented by at-

4. After Lustig was convicted and sentenced in

this case, his probation was revoked for the

prior Alaska offense and his original five-year

sentence reinstated. Lustig’s appeal in this

other case is dealt with in a companion case

filed in conjunction with this opinion. See

United States v. Lustig, slip opin. 1277, ——

F.2d ——— (9 Cir. 1977).

torney Fuld from the time of his arrest

until four days prior to trial. Fuld

moved to withdraw as counsel two weeks

after Lustig’s arrest, claiming the period

prescribed by the Speedy Trial Act made

representation by anyone _ impossible.

The district court denied Fuld’s motion,

but warned Lustig that he must either

make final arrangements with Fuld or

get another attorney for trial, then more

than a month away. Lustig did not act

on this advice until immediately before

trial.

At that time, attorney Weidner be-

came counsel of record. He asked for a

continuance four days prior to trial.

The court denied this motion. Lustig

now claims that this failure to grant a

continuance resulted in a deprivation of

his right to the effective assistance of

eounsel of his choice. See, e. g., Powell

v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55,

77 L.Ed. 158 (1932): Sanders v. Russell,

401 F.2d 241, 247 (5 Cir. 1968).

Lustig had over a month to obtain a

different attorney. He is a man of con-

siderable means. It is very unlikely

that he would be unable to find willing

counsel in the entire city of Anchorage

(which has over 600 attorneys). More

probably, he simply did not try very

hard. See Glenn v. United States, 303

F.2d 536, 543 (5 Cir. 1962) (failure to

obtain counsel was defendant’s fault).

Lustig relies primarily on Mardian v.

United States, 178 U.S.App.D.C. ——, 546

F.2d 973 (1977). In that case, the appel-

lant had made a motion for severance

two weeks into trial after his attorney

unexpectedly became ill and was hospi-

talized. The circuit court found the de-

nial of this motion to be reversible error,

but only because appellant had earlier

made a showing to the trial court of

substantial prejudice resulting from a

joint trial. There was a great disparity

in the evidence against the appellant and

his three co-defendants. Id. at 979-80.

These factors are absent here. The

trial had not begun; Lustig had had am-

ple time to obtain alternative counsel.

5. Lustig claims that the court-imposed freeze

over his assets prevented him from hiring

counsel. The court’s order was for the limited

purpose of insuring that Lustig did not flee. It

would not have prevented payment of an at-

torney if a request had been made. Further-

more, Lustig’s present counsel actually termi-

nated his employment with the Anchorage

Public Defenders’ Office to become Lustig’s

attorney. One can only infer that some attrac-

tive consideration prompted this action. In

addition, the attorney immediately rented an

office, and hired a secretary, an investigator, a

research assistant, and another attorney to

work on the case. This hardly suggests either

inadequate resources or representation.

There were no prejudicial factors in-

volved such as the disparity in evidence.

As the court in Mardian also observed,

“(A] defendant’s right to an attorney of

his choice is not so absolute as to permit

disruption of the fair and orderly admin-

istration of justice when another compe-

tent attorney is available to continue the

defense.” Id. at 979, n. 9. See also Lof-

ton v. Procunier, 487 F.2d 434, 435 (9 Cir.

1973).

A trial court has wide discretion to

grant or deny continuances. Ungar v.

Sarafite, 376 U.S. 575, 591, 84 S.Ct. 841,

11 L.Ed.2d 921 (1963). Actual prejudice

must be shown before a trial court’s de-

nial of a continuance will be reversed.

United States v. Harris, 501 F.2d 1, 4-5

(9 Cir. 1974); Daut v. United States, 405

F.2d 312, 315 (9 Cir. 1968), cert. denied,

402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d

114 (1971). Moreover, a court must be

wary against the “right of counsel” be-

ing used as a ploy to gain time or effect

delay. United States ex rel. Baskerville

v. Deegan, 428 F.2d 714, 716 (2 Cir.

1970).

This court may view the record to de-

termine the adequacy of representation

and possible prejudice from a denial of a

continuance. See United States v. Sim-

mons, 457 F.2d 763, 764 (9 Cir. 1972);

Torres v. United States, 270 F.2d 252.

255 (9 Cir. 1959). And the record in this

case reveals extensive and competent ar-

gument and cross-examination by Lus-

tig’s counsel—far more so, we might

add, than for his co-defendant. More-

over, this case was relatively uncompli-

cated, with the government producing its

evidence in just six hours.

It is arguable whether the district

court should have granted Lustig’s new

attorney more time.’ However, the fail-

ure to do so falls well short of an abuse

of discretion.’

6. The record shows that the trial judge mistak-

enly believed he had no choice in the matter;

he thought the Speedy Trial Act, 18 U.S.C.

§ 3164, rigidly required trial within 46 days

after arrest. Ninety days from arrest to trial

is allowed. Moreover, delays which are attrib-

utable to the defendant are not counted in this

period. United States v. Lemon, 550 F.2d 467,

470 (9 Cir. 1977).

7. Lustig also argues that the court should have

granted a continuance to enable him to cail

the witness who would establish that Newton

was motivated by revenge. This request came

after the defense rested its case, and thus can-

not be said to be a product of anything except

lack of due diligence. See United States v.

Harris, 436 F.2d 775 (9 Cir. 1970). Moreover,

the testimony would have been cumulative and

marginally relevant. There was no error here

either.

JUROR DISCHARGE

[8-11] Prior to the start of the

second day of trial, Judge von der Heydt

met with juror David Gransbury at

Gransbury’s request. Gransbury re-

vealed that he possessed information

about the case which made him believe

that appellants were guilty. The judge

examined Gransbury under oath, in

chambers outside presence of counsel,

and finally excused him from further

duty. The first alternate was seated in

his place in view of the defendants, pur-

suant to Fed.R.Crim.P. 24(c). Lustig’s

motion for an evidentiary hearing was

denied.

Lustig argues that this excusal violat-

ed his right to be present at all critical

stages of a proceeding. See Fed.R.

Crim.P. 43. He cites numerous cases

which point to the importance of the

court not communicating ex parte with

the jury. See, e. g., United States v.

Arrigada, 451 F.2d 487, 488 (4 Cir. 1971);

Evans v. United States, 284 F.2d 393 (6

Cir. 1960). Had juror Gransbury been

retained, these cases might’ be

applicable.’

It is well established that a judge may

dismiss a juror for cause without a hear-

ing. See, e. g., United States v. Dome-

nach, 476 F.2d 1229, 1232 (2 Cir.), cert.

O39

denied, 414 U.S. 480, 94 S.Ct. 95, 38

L.Ed.2d 77 (1973) (dismissal of juror who

was 10 minutes late); United States v.

Cameron, 464 F.2d 333, 335 (7 Cir. 1972)

(judge has discretion to remove juror

who cannot perform duties). The court

is not required to hold hearings on ques-

tions of fitness either; in camera inquir-

ies are sufficient. United States v. Cri-

sona, 416 F.2d 107, 119 (2 Cir. 1969).

This case is similar to United States v.

Houlihan, 332 F.2d 8 (2 Cir.), cert. de-

nied, 379 U.S. 828, 85 S.Ct. 56, 13

L.Ed.2d 37 (1964). There one of the jur-

ors was a practical nurse employed by a

heart patient who suffered a heart at-

tack on the eighth day of trial. The

juror informed the judge of these facts

in his chambers without anyone else

present. The judge excused the juror

and later informed counsel of his action.

Defendant argued on appeal that this

8. Appellant also contends that the excusal rep-

resented an improper ex parte communication

of the court to the jury. But such a communi-

cation is necessarily implied by the judge's ex-

cusal (it would be difficult to excuse without

communicating), and would not be prejudicial

in any case because that juror no longer

served. Moreover, communications by the

judge far more prejudicial and less justified

than this one have been found to be harmless

error. See, e. g., United States v. Goodman,

457 F.2d 68 (9 Cir. 1972) (note from judge).

violated his Fifth and Sixth Amendment

rights. The Second Circuit responded:

“We conclude that defendants’

rights were not violated. This circuit

has previously held that it was not

improper near the end of a trial for a

judge to speak privately and off the

record to a juror to convince him to

remain on the jury after he had re-

quested to be excused for reasons of

personal hardship. United States v.

Woodner, 317 F.2d 649, 652 (2d Cir.),

cert. denied, 375 U.S. 903, 84 S.Ct. 192,

11 L.Ed.2d 144 (1963). As we said

‘we would hesitate to presume that

prejudice resulted in the absence of

some plain showing to that effect.

* * * We have enough confi-

dence in the integrity and fairness

of the District Judges to assume

that they will not make unfair re-

marks to jurors while undertaking

administrative duties of this nature.’

Certainly no greater prejudice can

arise when as a result of the interview

the juror is dismissed and, in the pres-

ence of the defendant and his attor-

ney, an alternate is substituted. The

Woodner decision is therefore control-

ling.” 332 F.2d at 13 (citations omit-

ted).