Petition — Frakes v. United States

U.S

D

DEC 22 1977

FILE

r MICHAEL RODAK, JR., CLERK

In the Supreme Court of the

United Ststes

Octrosper TERM 1977

No.'€.4.-799 1

Pau. Gorpon F'RakKEs,

Petitioner,

V.

Unitep States oF AMERICA,

Respondent.

Petition for Writ of Certiorari to

The United States Court of Appeals

For the Ninth Circuit

Frurpe.ui & EIsENBERG

GILBERT EISENBERG

407 Sansome Street, Third Floor

San Francisco, California 94111

Telephone: (415) 433-3476

CUMINGS AND JORDAN

ANNE FiLOwer CuMINGS

96 Jessie

San Francisco, California 94105

Telephone: (415) 495-4495

Attorneys for Petitioner

Paul Gordon Frakes

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 84105

Page

I scsitieiinidsiteeithianieiiecaiibbtinshaiiatarildtebaaaiecihaniinia 1

Jurisdiction . ee icbalchinbiadiittaiedencalinaiibitelindtimeantin 2

Questions Presented for Review ......... sencteuibeniidibide 2

Constitutional and Statutory Provisions .......................... 3

I Ir Te GU cctinitiittnsisditentensceeancninsenennntasencianntin +

Reason for Granting the Writ

1.

The Trial Court Prevented Petitioner From

Presenting His Sole Defense to the Charges

Against Him. The Court Below Ruled That This

Was Error But Did Not Affect His Conspiracy

Conviction. This Ruling Conflicts With the Sixth

Amendment, Decisions of This Court and of

Se SII sinsseiscnsiicacstiasnttetitiesbeceietinninadenaesiaiatiinntinisiuienties

Whether the Ruling of the Court Below That the

Conduct of the Agents Who Conducted the Wire-

taps Did Not Violate the Fourth Amendment or

the Minimization Standards of 18 U.S.C.

§ 2518(5) Conflicts With Decisions of This Court,

and Whether This Case Should Be Consolidated

With Scott v. United States, Presently Before

TN RITE ciininnscoiecessinissiideitiieibhanininsllhecsininiabienediibiaeaieasiean

The Ruling of the Court Below That the Trial

Court Did Not Err in Its Repeated Refusal to

Ingnire of Jurors Whether They Had Read Prej-

udicial Newspaper Accounts Published While

Trial Was in Progress Conflicts With Decisions

of Several Other Circuits and Calls for the Exer-

cise of This Court’s Supervisory Power to Order

a New Trial .........

10

li INDEX

Page

4. The Ruling of the Court Below That the ‘rial

Court Did Not Err in Amending the Indictment

Effectively Overrules Decisions of This Court... 15

a 17

CITATIONS

CasEs Page

Adjmi v. United States, 346 F.2d 654 (5th Cir.), cert.

Es eee 14

Berger v. New York, 388 U.S. 41 (1967) 12

Brookhart v. Janis, 384 U.S. 1 (1966) 9

Calo v. United States, 338 F.2d 793 (1st Cir. 1964) ...... 14

Carver v. United States, 164 U.S. 694 (1897) -.............. 7

Chambers v. Mississippi, 410 U.S. 284 (1973) -................. 8

Chapman v. California, 386 U.S. 18 (1967) ...................... 9

Coppedge v. United States, 106 U.S. App. D.C. 275,

I a I A iii asain niaetninmteninindieteniaiinnn 14

Davis v. Alaska, 415 U.S. 308 (1974) 20020... eeeeeeeeeseeee 9

Ex Parte v. Bain, 121 U.S. 1 (1887) ...... 15

Faretta v. California, 422 U.S. 806 (1975) ~.................... 8

Ford v. United States, 273 U.S. 593 (1926) -................... 16

Heisler v. United States, 394 F.2d 692 (9th Cir.), cert.

Ny GPEE Os IEE CIID cccececentstrecsonsicttcenssneeansennnsacenm 16

In re Oliver, 333 U.S. 257 (1948) ..........2......cccccccccccsecseoiee 7

Margoles v. United States, 407 F.2d 727, cert. denied,

ene eee 13

Marron v. United States, 275 U.S. 192 (1927) —..00200... 12

Marshall v. United States, 360 U.S. 310 (1959) ......... 15

Marson vy. United States, 203 F.2d 904 (6th Cir. 1953) .. 14

Osborn v. United States, 385 U.S. 323 (1966) —..00000.... 12

iv TaBLe or AvuTHoritTies CITED

Russell v. United States, 369 U.S. 749 (1962) ...............

Salinger v. United States, 272 U.S. 542 (1926) 00000...

Sheppard v. Maxwell, 384 U.S. 333 (1966)...

Silverthorne v. United States, 400 F.2d 627 (1968) .....

Smith v. Illinois, 390 U.S. 129 (1968) 20.0

Stanford v. Texas, 379 U.S. 476 (1965) oo

Stirone v. United States, 361 U.S. 212 (1960) 2000...

Turner v. Louisiana, 379 U.S. 466 (1965) ...................

United States v. Augenblick, 393 U.S. 378 (1969) ........

United States v. Chavez, 416 U.S. 562 (1974) .000200....

United States v. De Loach, 164 U.S. App.D.C. 116, 504

F.2d 185 (1974), cert. denied, 426 U.S. 909 (1976) ....

United States v. Donovan, 429 U.S. 413 (1977) ............

United States v. Giordano, 416 U.S. 505 (1974) 00000...

United States v. Hankish, 502 F.2d 71 (4th Cir. 1975) ..

United States v. Kahn, 415 U.S. 143 (1974) 22000 ..

United States v. Paquet, 484 F.2d 208 (1973) 000... ans

United States v. Pomponio, 517 F.2d 460 (4th Cir.

|; ) nn

United States v. Segal, 534 F.2d 578 (3d Cir. 1976) ...:

United States v. Somers, 496 F.2d 723 (3d Cir. 1974) ..

Washington v. Texas, 388 U.S. 14 (1967) ooo

CONSTITUTION

United States Constitution, Fourth Amendment ........

United States Constitution, Fifth Amendment ............

United States Constitution, Sixth Amendment

ww w

TaBLE OF AvuTHORITIES CITED Vv

Pages

STATUTES

Ee 10

st asaeentemmrmepepennnccsnes 2,4, 12

Ee 2,4, 12

a 4

ce ceoceeeeeeeeetttcen 4

AUTHORITIES

Mause, Harmless Constitutional Error: The Implica-

tion of Chapman v. California, 53 MINN.L.REV.

calc cerresreeenenentnctnescnnnscccesecccenecese 10

Note, Harmless Constitutional Error: A Reappraisal,

83 HARV. .L.REV. 814 (1970) ...............2.....--cseceececeeeesees 10

The American Bar Association’s Standards Relating

to Fair Trial and Free Press, Section 3.5(f) ............ 14

In the Supreme Court of the

| United States

Ocroser TERM 1977

Pau Gorpon FRaAxEs,

Pet:tioner,

Vv.

Unitrep States oF AMERICA,

Respondent.

Petition for Writ of Certiorari to

The United States Court of Appeals

For the Ninth Circuit

The Petitioner, PAUL GORDON FRAKES, respectfully

prays that a Writ of Certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Ninth Circuit, entered March 18, 1977.

OPINION BELOW

The Court of Appeals entered its opinion on March 18,

1977. A copy of the opinion is attached hereto as Appendix

A. On April 7, 1977, Petitioner Frakes filed a petition for

rehearing with suggestion for rehearing en bane. This

2

petition was denied on December 2, 1977. A copy of the

Order denying the petition is attached hereto as Appen-

dix B.

JURISDICTION

Jurisdiction of this Court is invoked under Title 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Where the trial court prevented petitioner from pre-

senting his sole defense to the charges against him and

the court below ruled that this was error but did not affect

his conspiracy conviction because of other substantial evi-

dence against him, whether this ruling conflicts with his

Sixth Amendment right to present a defense, decisions of

this Court and of other circuits.

2. Whether the ruling of the court below upholding

the constitutional validity of the wiretaps in this case con-

flicts with the Fourth Amendment, federal statutes and

decisions of this Court, because:

a. The agents’ complete recordation of all calls vio-

lated the Fourth Amendment and/or the minimization re-

quirement of the order authorizing the wiretap and 18

U.S.C. § 2518(5) ;

b. The agents’ preparation of allegedly “minimized”

tapes for submission to the court demonstrated their ability

to minimize; thus rendering their simultaneous, complete

recordation a violation of the minimization requirement;

ce. The agents’ destruction of the set of wiretap tapes

containing the complete recordation of each call violated

the due process clause of the Fifth Amendment and/or

the recordation/preservation requirement of 18 U.S.C.

§ 2518(8) (a);

d. The agents’ destruction of the set of tapes contain-

ing the complete recordation of each call, their preparation

3

of allegedly “minimized” tapes for submission to the court,

together with their initial “misleading” testimony consti-

tuted an attempt to perpetrate a fraud on the court and/or

such grave misconduct that the wiretaps should have been

suppressed on that ground.

3. Whether the ruling of the court below that the trial

court did not err by its refusal to inquire of jurors whether

they had read prejudicial newspaper accounts published

while the trial was in progress conflicts with decisions of

several other circuits and calls for the exercise of this

Court’s supervisory power to order a new trial.

4. Whether the ruling of the court below that the 'trial

court did not err in amending the indictment on its face

effectively overrules decisions of this Court.

CONSTITUTIONAL AND STATUTORY PROVISIONS

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrant shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” United

States Constitution, Amendment IV.

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

erty, without due process of law. . .” United States Con-

stitution, Amendment V.

“Tn all criminal prosecution, the accused shall enjoy the

right to a speedy and public trial; .. . to be confronted

with the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have the Assist-

ance of Counsel for his defense.” United States Constitu-

tion, Amendment VI.

“ _. Every order... shall contain a provision that the

authorization to intercept ... shall be conducted in such

4

a way as to minimize the interception of communications

not otherwise subject to interception under this chap-

ter....” 18 U.S.C. § 2518(5).

“The contents of any wire or oral communication inter-

cepted by any means authorized by this chapter shall, if

possible, be recorded on tape or wire or other comparable

device. The recording of the contents of any wire or oral

communication under this subsection shall be done in such

way as will protect the recording from editing or other

alterations. .. . They [the recordings] shall not be de-

stroved except upon an order of the issuing or denying

judge and in any event shall be kept for ten years. .. .”

18 U.S.C. § 2518(8) (a).

“Any aggrieved person in any trial . . . may move to

suppress the contents of any intercepted wire or oral com-

munication, or evidence derived therefrom, on the grounds

that:

(i) The communication was lawfully intercepted;

(ii) The order of authorization or approval under

which is was intercepted is insufficient on its face; or

(iii) The interception was not made in conformity with

the order of authorization or approval.” 18 U.S.C. § 2518

(10) (a).

STATEMENT CF THE CASE

Petitioner Paul Gordon Frakes, along with eight others,

was indicted on March 16, 1973 by the Grand Jury in the

United States District Court for the Southern District of

California in a six-count indictment charging violations of

21 U.S.C. § 841 and related sections of the Controlled Sub-

stances Act (1 R. 1-7).’

1. Abbreviation key: R. = Clerk’s Record Or Appeal; T. =

Reporter’s Transcript.

5

The bulk of the evidence against Frakes was derived

from court-authorized wiretaps of the telephones of two

co-defendants. Frakes, and the other defendants, filed mo-

tions to suppress the evidence obtained as a result of these

wiretaps and these motions were heard by District Judge

Gordon Thompson on eighteen court dates between Octo-

ber 26, 1973 and March 22, 1974 (See, generally, 7-24 T.).

All motions were denied (29 T. 3979).

Frakes, and three co-defendants, were tried by jury

between September 5 and November 8, 1974 (See, generally,

35-61 T.). Frakes was found guilty of all five counts in

which he was charged and was sentenced to imprisonment

for the maximum sentence on each count—a total of nine-

teen years (3 R. 907, 919; 3 R. 975).

The Ninth Cireuit Court of Appeals reversed and re-

manded petitioner Frakes’ judgment of conviction on four

of the five counts and affirmed the judgment against him

on the charge of conspiracy to import, distribute and

possess with intent to distribute LSD (See Appendix A).

REASONS FOR GRANTING THE WRIT

1., The Trial Court Prevented Petitioner From Presenting His Sole

Defense to the Charges Against Him. The Court Below Ruled

That This Was Error But Did Not Affect His Conspiracy Con-

viction. This Ruling Conflicts With the Sixth Amendment,

Decisions of This Court and of Other Circuits.

The heart of the government’s case against petitioner

consisted of three intercepted telephone conversations be-

tween co-conspirator Vladimir Petroff and petitioner (43

T. 1121, 1125-1127). These were admitted into evidence

under the co-conspirator exception to the hearsay rule (55

T. 2602). In one of these conversations, Petroff told Frakes

that “old Charlie” had “an acre” of “prime property for

sale”. The government contended in ciosing argument that

6

the word “acre” was a code word for LSD and that the

conversation was strong evidence that Frakes and Petroff

were co-conspirators in a conspiracy to traffic in contra-

band (58 T. 2932).

After the government concluded its case-in-chief, coun-

sel for Frakes attempted to introduce into evidence some

nineteen intercepted telephone conversations between Pet-

roff and other persons for the purpose of explaining and

putting into context the conversations which the govern-

ment played (55 T. 2602-2614). Frakes’ defense was that

these conversations established that Petroff was engaged

in legitimate real estate transactions and that “acres”

actually meant acres of land and was not a code word for

LSD, as the government contended. The trial court refused

to admit the conversations on the ground that they were

“clearly inadmissible hearsay” (55 T. 2608, 2612-2614). As

Frakes’ entire defense was to be based upon these con-

versations, he produced virtually no defense (55 T. 2614-29,

2639-41).

The Ninth Cireuit Court of Appeals held that the district

court’s exclusion of the proffered tapes was error (Appen-

dix, p. 13). The court stated:

“Frakes had a right to argue to the jury Frakes’ theory

of the conversation upon which the government was

building its case against Frakes.

“Whether or not Frakes could prove it, he had the

right to use anv available evidence to argue to the

jury that the real estate language was not code lan-

guage, The rejected tapes contained references to

“lots”, and, it could be argued, other words capable

of relating to real estate transactions, as Frakes con-

tended. The question was one for the jury. The exclu-

sion of the tapes offered by Frakes denied him the

7

right to present an important part of his defense, and

was prejudicial error.” (Appendix, p. 13).

Accordingly, the court reversed Frakes’ convictions on all

substantive counts.

The court, however, ruled that the conspiracy count “was

not affected by the erroneous exclusion of the tapes and

is fully supported by other evidence.” After briefly deserib-

ing this “other evidence”, the court concluded, “There is

no way the excluded evidence could have helped Frakes

rebut the conspiracy case.” (Appendix, p. 14).

The Ninth Circuit, taking over the function of the jury,

in essence ruled that Frakes was erroneously deprived of

an opportunity to present a defense but that this error was

harmless with respect to the conspiracy charge because that

charge was supported by other evidence. The court seems

to be saying that the prosecution’s case-in-chief in certain

criminal trials may be so strong that the court may restrict

the defendant from presenting a defense without reversible

error occurring.

The court’s opinion conflicts directly with an accused’s

rights under the Sixth Amendment of the United States

Constitution and a long line of opinions of this Court in-

terpreting il.

As early as 1897, this Court wrote that “where the whole

or a part of a conversation has been put in evidence by

one party, the other party is entitled to explain, vary, or

contradict it.” Carver v. United States, 164 U.S. 694, 697

(1897).

In In re Oliver, 333 U.S. 257, 273 (1948), this Court

stated, “A person’s right to... an opportunity to be heard

in his defense—a right to his day in court—[is] basic in

our system of jurisprudence.”

8

In Washington v. Texas, 388 U.S. 14, 19 (1967), the Court

noted that “(t]he right to offer the testimony of witnesses

... 18 in plain terms the right to present a defense, the right

to present the defendant’s version of the facts as well as

the prosecution’s to the jury so it may decide where the

truth lies. ... This right is a fundamental element of due

process of law.”

In Chambers ‘v. Mississippi, 410 U.S. 284 (1973), the

Court wrote that “[tjhe right of an accused in a criminal

trial to due process is, in essence, the right to a fair oppor-

tunity to defend against the State’s accusations.” 410 U.S.

at 294. The Court also stated, “Few rights are more funda-

mental than that of an accused to present witnesses in his

own defense. .. . In these circumstances, where constitu-

tional rights directly affecting the ascertainment of guilt

are implicated, the hearsay rule may not be applied mech-

anistically to defeat the ends of justice.” 410 U.S. at 302.

Finally, the Court stated in Faretta v. California, 422

U.S. 806, 818 (1975), “In short, the [Sixth] Amendment

constitutionalizes the right in an adversary criminal trial

to make a defense as we know it.”

The ruling below, effectively denying petitioner his con-

stitutional right to defend himself against the serious felony

charge of conspiracy, flies in the face of each of the above-

cited eases and of all cases of this Court which interpret

the Sixth Amendment.

In addition, the opinion conflicts with cases from other

circuits. See, e.g., United States v. De Loach, 164 U.S. App.

D.C, 116, 504 F.2d 185, 191 (1974), cert. denied, 426 U.S.

909 (1976), in which the trial judge prevented defense coun-

sel from presenting his theory of the case to the jury in his

closing argument. The D.C. Cireuit stated in reversing the

judgment of conviction, “whether this argument would have

9

convinced the jury cannot be known. But the theory had

support, however fragmentary, in the record, and without

it [defendant] was ‘deprived of the substance of his de-

fense.’” Similarly, the Fifth Cireuit in United States v.

Paquet, 484 F.2d 208 (1973), reversed a conviction because

the defendant was prohibited from telling the jury his inter-

pretation of a conversation which had been introduced by

the government. The court noted that “the defendant was

entitled to present his version of the entire conversation.

The prosecution cannot give its version of a matter and

thereafter muzzle the defendant.” 484 F.2d at 211. See also

United States v. Segal, 534 F.2d 578, 582 (3d Cir. 1976).

The right of an accused to present a defense is so basic

and fundamental a constitutional right that its complete

denial, as occurred here, can never be considered harmless

beyond a reasonable doubt. This Court in Chapman v. Cali-

fornia, 386 U.S. 18, 23 (1967), observed that “there are

some constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error.” The

Court listed three examples,? but never declared this list

to be exclusive.

This Court has ruled that a denial of the related and

equally-basic Sixth Amendment right of effective cross-

examination “would be constitutional error of the first mag-

nitude and no amount of showing of want of prejudice

would cure it.” Davis v. Alaska, 415 U.S. 308, 318 (1974);

Smith v. Illinois, 390 U.S. 129, 131 (1968); Brookhart v.

Janis, 384 U.S. 1, 3 (1966). Several commentators have

suggested that this is the type of constitutional error that

goes to the very heart of the guilt-determining process,

2. These examples are: admission into evidence of a coerced

confession, denial of the right to counsel, and trial by a biased

judge. See 386 U.S. at 23 n. 8.

10

is inherently prejudicial, and should result in automatic

reversal.*

Petitioner respectfully urges this Court to grant this

petition to bring the Ninth Cireuit Court of Appeals in

line with the previously-cited line of cases of this Court

which recognizes the fundamental importance of an ac-

cused’s constitutional right to present a defense to the

government’s criminal indictment against him.

2. Whether the Ruling of the Court Below That the Conduct of

the Agents Who Conducted the Wiretaps Did Not Violate

the Fourth Amendment or the Minimization Standards of 18

U.S.C. § 2518(5) Conflicts With Decisions of This Court, and

Whether This Case Should be Consolidated With Scott v.

United States, Presently Before This Court.

Pursuant to Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, the govern-

ment in January 1973 sought and was granted authority

to wiretap the telephones of two co-conspirators in the

instant case. Government agents wiretapped those tele-

phones for twelve days and introduced the tapes of those

wiretaps in the trial below.

The government made three sets of tapes of each con-

versation from three different recording machines. The first

two sets of tapes were sealed and sent to the district court

3. “To deny unconstitutionally a defendant the opportunity to

summon witnesses is an error which cannot fairly be found to be

‘harmless beyond a reasonable doubt’, because it is impossible to

ascertain what the testimony of the witnesses would have been had

they been summoned.”

Mause, Harmless Constitutional Error: The Implication of

Chapman v. California, 53 Minn.L.Rev. 519, 542-543 (1969).

“!E]rrors which concern the basic ‘trial machinery’—the mech-

anism for assembling evidence and the mechanism by which it is

assessed—should call for automatie reversal.” Note, Harmless

Constitutional Error: A Reappraisal, 83 Harv.L.Rev. 814, 821

(1970).

11

and the U.S: Attorney’s office. These two sets of tapes were

“minimized” in the sense that not every conversation was

recorded in its entirety. However, defense counsel discov-

ered prior to trial that the tapes from the third machine,

unlike the “sanitized” tapes submitted to the court, ran

continuously and were never minimized (22 T. 2827—23 T.

2990) .*

Only three tapes remain from the third machine. Each

contains the complete recordation of every conversation

including those that were only partially recorded (i.e. “min-

imized”) on the “sanitized” court tape. The other tapes

from the third machine were not preserved. The three tapes

which remain had been retained by accident; the govern-

ment had not intended to retain any of the tapes from the

third machine.

The issues involving minimization presented here are

similar to those raised in Scott v. United States, a case in

which this Court granted a petition for a writ of certiorari

on October 11, 1977. No. 76-6767, ........ US. ........, 98 $.Ct.

261. In Scott, the petitioners asserted that the agents made

no good faith effort to minimize. In the instant case, the

agents “minimized” on the court tape and another but not

on a third tape. Here, the agents, by their conduct with

respect to the court tape, demonstrated that they could

have minimized. Petitioner Frakes respectfully suggests

that the Court should consider joining this case with Scott

for argument and decision.

4. Prior to defense counsels’ production of one of the tapes

from the third machine (Pre-trial Court Exhibit 21, which con-

tained the complete recordation of each call, even those calls that

were only partially recorded on the tape submitted to the court),

government personnel denied that they had used the third machine

to record each call in its entirety (9 T. 1120, 1124, 1125, 1127, 1225,

1230, 1231; 10 T. 1274, 1275, 1293, 1296-1298; 11 T. 1429, 1430;

12 T. 1520, 1523, 1524, 1525).

12

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968 is a major new federal statute and this Court

has granted certiorari to review portions of it for that

reason. See, e.g., United States v. Donovan, 429 U.S. 413,

422 (1977); United States v. Kahn, 415 U.S. 143, 150 (1974).

Moreover, previously this Court has specifically noted that

minimization issues have not been before it. United States

v. Giordano, 416 U.S. 505, 525 fn. 13 (1974); United States

v. Chavez, 416 U.S. 562, 569-570 n. 3 (1974).

It is important that this Court review the ad mixture of

minimization and recordation/preservation issues presented

by the instant petition in order to clarify for the American

public, prosecutors and law enforcement officers the guide-

lines that should be used. Lack of enforcement of the min-

imization requirement (18 U.S.C. § 2518(5)) will render

unauthorized wiretaps into general warrants; lack of en-

forcement of the recordation/preservation requirement (18

U.S.C. § 2518(8)(a)) will render nugatory inter alia, the

minimization requirement.

The opinion below is in conflict with the Fourth Amend-

ment of the United States Constitution and this Court’s

opinions in Berger v. New York, 388 U.S. 41 (1967); Osborn

v. United States, 385 U.S. 323 (1966); Stanford v. Teras,

379 U.S. 476 (1965), and Marron v. United States, 275 U.S.

192 (1927), as well as the due process clause of the Fifth

Amendment of the United States Constitution and this

Court’s decision in United States v. Augenblick, 393 U.S.

378 (1969).

These matters of minimization, recordation and preser-

vation must be decided by this Court at the earliest oppor-

tunity. Law enforcement officials need guidelines set by

this Court and the American public needs to feel secure that

abuses of this intrusive investigative device will not be

13

tolerated. Moreover, it is urged that the opinion below sanc-

tioned such a serious departure from the accepted and usual

course of judicial proceedings as to call for an exercise of

this Court’s supervisory powers.

For all of the reasons above set forth, it is respectfully

submitted that this Court should grant this petition and

join the instant case with Scott for argument and decision.

3. The Ruling of the Court Below That the Trial Court Did Not

Err in Its Repeated Refusal to Inquire of Jurors Whether They

Had Read Prejudicial Newspaper Accounts Published While

Trial Was in Progress Conflicts With Decisions of Several

Other Circuits and Calls for the Exercise of This Court's

Supervisory Power to Order a New Trial.

At least six articles directly or indirectly related to the

ease at bench appeared in local newspapers during its trial

in San Diego. All contained inadmissible evidence. Two

referred to the case as the “largest LSD seizure ever made

in the United States” and “the largest LSD case ever

prosecuted in this country.” Defense counsel requested on a

number of occasions during the trial that the judge inquire

of the jurors if any of them had read or been told about

the articles and later moved for a mistrial because of the

articles (36 T. 18-19, 23; 47 T. 1806-1808; 55 T. 2554). The

judge denied all requests (36 T. 19; 47 T. 1805; 55 T. 2592).

The Ninth Cireuit ruled that, although the contents of

most of the articles was irrelevant and inadmissible, the

trial judge did not abuse his discretion and there was no

prejudice (Appendix A, pp. 20-21).

This ruling conflicts with the opinions of at least six

other circuits. For example, the Seventh Cireuit in Mar-

goles v. United States, 407 F.2d 727, 735, cert. denied, 396

U.S. 833 (1969), ruled that “the procedure required by the

Cireuit where prejudicial publicity is brought to the court’s

attention during trial is that the court must ascertain if

14

any jurors who had been exposed to such publicity had

read or heard the same.” (Emphasis in original). Similar

rulings were announced in Calo v. United States, 338 F.2d

793, 795 (1st Cir. 1964); United States v. Pomponio, 517

F.2d 460, 463 (4th Cir. 1975); United States v. Hankish,

502 F.2d 71 (4th Cir. 1974); Adjmi v. United States, 346

F.2d 654, 659 (Sth Cir.), cert. denied, 382 U.S. 823 (1965) ;

Marson v. United States, 203 F.2d 904, 909-911 (6th Cir.

1953) ; Coppedge v. United States, 106 U.S. App. D.C. 275,

272 F.2d 504, 508 (1959).° In fact, the opinion below con-

flicts with a prior decision of the Ninth Circuit in Silver-

thorne v. United States, 400 F.2d 627, 642 (1968).

Moreover, and very significantly, the court’s ruling pro-

hibits any further inquiry into whether an important con-

stitutional right of the aceused has been violated. This

Court has ruled that “the ‘evidence developed’ against a

defendant shall come from the witness stand in a public

courtroom where there is full judicial protection of the

defendant’s right of confrontation, of cross examination,

and of counsel.” Turner v. Louisiana, 379 U.S. 466, 472-473

(1965). Because the trial judge refused to make any inquiry

whatsoever as to whether any juror had seen any of the

articles, it is impossible to ascertain whether one or more

jurors had read an article and had been influenced thereby.®

5. See also The American Bar Association’s Standards Relating

to Fair Trial and Free Press, Section 3.5(f).

6. It is significant that District Judge Thompson’s standard

admonition, given prior to each recess in the lengthy trial, did not

include an instruction to refrain from reading newspapers (See,

e.g., 35 T. 54, 196; 37 T. 365; 38 T. 468). On one of the days that

defense counsel complained of prejudicial articles (47 T. 1803-

1805), the court did, at the close of the session, make reference to

newspapers in its admonition, but even then, it did not forbid the

jurors to read articles concerning the trial, but only said that “it

is ell to your benefit not to view any of the news broadeasts or

listen to any news broadcasts or observe any reports by the news-

papers. ...” (47 T. 1894) (Emphasis supplied. )

15

Of course, the petitioner would be entitled to a new trial

if a prejudicial article had reached a juror and it had

influenced his verdict. See Marshall v. United States, 360

U.S. 310 (1959). See also Sheppard v. Maxwell, 384 U.S.

333 (1966).

In order to resolve the conflict among the various courts

of appeal and to give much-needed instructions to lower

court judges regarding their duties and obligations when

the possibility of prejudicial media articles or broadcasts

is present, this Court should grant this petition and reverse

petitioner’s judgment of conviction under its “supervisory

power to formulate and apply proper standards for en-

forcement of the criminal law in the federal courts.” See,

e.g., Marshall, supra, 360 U.S. at 313.

4. The Ruling of the Court Below That the Trial Court Did Not

Err in Amending the Indictment Effectively Overrules Deci-

sions of This Court.

Count one of the indictment in the case at bench alleged

that Frakes and others “did knowingly and intentionally

combine, conspire and agree together with each other...

to knowingly and intentionally import, distribute and

possess with intent to distribute LSD... .” (1 R. 1).

At the conclusion of the government’s case, counsel for

Frakes moved for a judgment of acquittal on the ground

that the government failed to prove importation of LSD.

The district court agreed that there was no evidence of

importation but denied the motion and struck the word

“import” from the face of the indictment (55 T. 2547-50,

2573-92). The Court of Appeals admitted that this action

was “awkward” but held that it “did not create a reversible

error.” (Appendix A, p. 18).

This ruling in effect overrules a line of decisions of this

Court, commencing with Ez Parte Bain, 121 U.S. 1 (1887),

16

which held that a trial court may never alter or amend an

indictment. This Court has since ruled that typographical

errors or true and obvious surplusage may be stricken or

corrected, See, e.g., Ford v. United States, 273 U.S. 593,

602 (1926); Salinger v. United States, 272 U.S. 542 (1926).

But this Court has continued to adhere to the basic prin-

ciple of Bain and has reaffirmed the rule prohibiting any

significant amendment in a series of decisions. See, e.g.,

Russell v. United States, 369 U.S. 749, 770-771 (1962) ;

Stirone v. United States, 361 U.S. 212, 217 (1960).

The opinion of the court below also conflicts with de-

cisions of at least one other cireuit which has strictly in-

terpreted the Bain principle. See United States v. Somers,

496 F.2d 723, 744 (3d Cir. 1974).

The rationale for the Bain principle is that, if an indict-

ment is amended, “the defendant is not tried on the indict-

ment of the grand jury, as is his constitutional right under

the Fifth Amendment, but on different charges, and there

is no way of knowing whether the grand jury would have

returned the indictment if given the opportunity.” Heisler

v. United States, 394 F.2d 692, 695 (9th Cir.) cert. denied,

392 U.S. 986 (1968).

The trial court’s action here prejudiced petitioner. The

stricken word was not mere surplusage. During a pretrial

motions hearing one vear prior to trial, the district judge

advised all counsel in the case (although referring specifi-

cally to another defendant) that “this court would require

that the government prove ... the way this Indictment is

alleged . . . that vour client conspired to do all three of

these acts [import, distribute, and possess with intent to

distribute]. Anything short of that would be under this

pleading one insufficient for a conviction.” (2 T. 162-163).

The judge’s action of striking the word “import” directly

17

contradicted this statement. Regardless of whether the

earlier statement was correct law, all defendants, includ-

ing petitioner, relied to their detriment upon it. (See, e.g.,

36 T. 47, 49-50; 55 T. 2547-50, 2573-92).

This Court should grant this petition to resolve the con-

fusion surrounding Bain and its progeny and to provide

guidance to trial court judges regarding amendment of

indictments.

CONCLUSION

For the foregoing reasons, petitioner Paul Gordon

Frakes respectfully suggests that a writ of certiorari

should issue in this case.

Dated: December 22, 1977.

Respectfully submitted,

Fiuipretui & EIsenserG

Cumines & JorDAN

By Grsert EISENBERG

Attorneys for Petitioner

Appendix A

Unitep States oF AMERICA,

Appellee,

Vv.

Manvet Guenn Asascat, Appellant.

Unitrep States or AMERICA,

Appellee,

V.

Pavut Gorpon Frakes, Appellant.

Nos. 75-1095 and 75-2052.

United States Court of Appeals,

Ninth Circuit.

March 18, 1977.

OPINION

GOODWIN, Circuit Judge:

Paul Gordon Frakes and Manuel Glenn Abascal were

convicted of multiple counts of violating 21 U.S.C. § 841

and related statutes which denounce possession and distri-

bution of certain drugs, as well as conspiracy to engage in

illegal drug transactions. Their combined appeals present

a number of issues common to both appellants, and others

that relate to each one individually.

An enterprise distributing large quantities of LSD, in-

volving as many as fifteen suspects, was discovered when

an undercover agent of the San Diego County district

attorney’s office, posing as a purchaser, developed a con-

tact with Clarence “Pee Wee” Batchelder, a suspected

dealer in various illicit drugs. Batchelder’s activities in-

dicated that his supplier was Vladimir Petroff. The agents

obtained wiretap orders and monitored the telephones of

both Batchelder and Petroff. The monitored conversations

led the agents to believe that Frakes was a partner of

Petroff, and that Abascal was active in the distribution

network in Northern California.

2 Appendiz

In due course, Batchelder was arrested in the act of sell-

ing LSD, and Petroff was arrested at his house in San

Diego. Frakes was arrested a short time after the arrest

of Batchelder and Petroff. A quantity of evidence’ which is

material in this appeal was seized in connection with Pe-

troff’s arrest.

Meanwhile, another team of agents in the Berkeley-Kast-

Bay area staked out Abascal’s house. A few days after Pe-

troff and Batchelder were arrested, agents in Lafayette

arrested Kathy Shull as she drove away from Abascal’s

house in his black Cadillac. In the Abascal Cadillac the

agents found a substantial quantity of LSD marked and

packaged in the same manner as that found in San Diego

in the possession of Batchelder and Petroff.

I. THE WIRETAPS

(a) Standing

[1] The trial, which followed lengthy pretrial proceed-

ings, took eight weeks. Much of the government’s evidence

was derived from the tap on the Petroff telephone. Abascal

had participated in seven of the monitored calls, and Frakes

in three. All but one of these cails were referred to in the

evidence. Accordingly, the appellants have standing to chal-

lenge the legality of this wiretap. United States v. King,

478 F.2d 494, 506 (9th Cir.), cert. denied, 414 U.S. 846, 94

S.Ct. 111, 38 L.Fd.2d 94 (1973), and 417 U.S. 920, 94 S.Ct.

2628, 41 L.Ed.2d 226 (1974).

(b) Necessity

[2,3] Abaseal and Frakes assert that the government’s

applications for the wiretap did not satisfy 18 U.S.C.

Appendiz 3

§ 2518(1)(¢e).1 The cited section emphasizes the objective of

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. §§ 2510 et seq., that wiretaps are “not

to be routinely employed as the initial step in criminal in-

vestigation.” United States v. Giordano, 416 U.S. 505, 515,

94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974) ; United States v.

Kahn, 415 U.S. 148, 153 n.12, 94 S.Ct. 977, 39 L.Ed.2d 225

(1974). Nevertheless, the statute is to be interpreted “in a

practical and commonsense fashion.” S.Rep.No.1097, 90th

Cong. 2d Sess. 1968, U.S. Code Cong. & Adm.News, pp. 2112,

2190. Consequently, the government must show only that

alternative means are likely, not certain, to fail; 7. e., a wire--

tap need not be resorted to only as a last resort. United

States v. Smith, 519 F.2d 516 (9th Cir. 1975) ; United States

v. Kerrigan, 514 F.2d 35, 38 (9th Cir.), cert. denied, 423

U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). See also

United States v. Vento, 533 F.2d 838, 850 (3d Cir. 1976).

[4] Section 2518(1) (ce), requires the government to make

a particularized showing in each case of the improbability

of success or high degree of danger from the use of alter-

native investigative techniques. The government must do

more than merely characterize a case as a “gambling con-

spiracy” or a “drug conspiracy” or any other kind of case

that is in general “tough to crack”. United States v. Kalus-

tian, 529 F.2d 585, 589 (9th Cir. 1975); United States v.

Kerrigan, 514 F.2d at 38. But see United States v. McCoy,

539 F.2d 1050, 1056 (5th Cir. 1976). Cf. United States v.

Scully, 546 F.2d 255, 260-261 (9th Cir. 1976).

1. 18 U.S.C. § 2518(1)(c) specifies that each application for a

wiretap must contain:

‘a full and complete statement as to whether or not other in-

vestigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be

too dangerous.”

4 Appendiz

[5] There is, of course, little doubt of the sufficiency of

the affidavits supporting the Batchelder tap. Batchelder had

discovered that he was under surveillance and had turned

“wary”. (Batchelder was involved in a complex network of

marijuana smuggling and distribution in addition to the

LSD conspiracy.) Batchelder had refused to allow the un-

dercover agent to deal directly with any of his drug sources.

The agents knew from their nonelectronic investigation that

wiretaps would generate significant new evidence from

Batchelder, but that nothing else would be productive. On

Petroff, the record was similar, but nonelectronie tech-

niques had produced little.

[6,7] The wiretap statute requires that § 2518(1)(c) be

satisfied with regard to each separate wiretap. Thus a show-

ing of need for the Batchelder wiretap would not neces-

sarily justify the need for the Petroff wiretap. It is not

enough that the agents believe the telephone subscribers

they wish to tap are all part of one conspiracy. Less intru-

sive investigative procedures may succeed with one putative

participant while they may not succeed with another. Here,

however, we are satisfied that the supporting affidavits were

sufficient to justify the Petroff tap. The government, upon

discovering that Petroff was probably Batchelder’s source,

had undertaken an extensive “paper” investigation of

Petroff. His lengthy criminal record was soon supplemented

by a mass of false personal data Petroff had given to vari-

ous agencies in an apparent effort to avoid being traced.

Also found were telegrams to Europe and telephone toll

records indicating a call to a woman in New Orleans who

had a California LSD arrest record. During the investiga-

tion Batchelder had indicated both that he thought Petroff

was manufacturing the drug and that it was being imported

from Europe and smuggled through a bribed Customs

agent. Agents were entitled to check both theories.

Appendix 5

Professionally packaged drug containers obtained from

Batchelder were circulated to a variety of law enforcement

agencies, but these samples produced no new leads. Batch-

elder’s refusal to allow the undercover agent to deal directly

with Petroff made it impossible for agents to move upward

from within the conspiracy. No other informants that could

have been of any assistance were known. Even if Batchelder

had known something about the operations beyond Petroff,

the government would have jeopardized its entire investiga-

tion by pressing Batchelder for more information.

The agents had, therefore, substantial reason to believe,

at the time they requested the wiretap, that Petroff was in

the middle of an extensive drug conspiracy with inter-

national dimensions. It was also clear that the telephone

was the principal means of communication of the con-

spirators. Petroff’s known record and activities had shown

him to be wary of surveillance and adept at avoiding it.

[8] This is not a case of “boilerplate” allegations true

of drug conspiracies in general and held not to be sufficient

in Kalustian. Here, the affidavit etched the nature and con-

tours of this conspiracy and the nature-and extent of this

investigation up to the requesting point with enough par-

ticularity to allow a judge reasonably to ascertain that

continued use of ordinary surveillance probably would be

fruitless. The wiretap orders were valid, United States v.

Spagnuolo, slip opinion p. 190, .... F.2d .... (9th Cir., March

4,1977).

(ec) Minimization

Claiming a systematic failure by the agents monitoring

the Petroff and Batchelder wiretaps to comply with the

minimization requirements of 18 U.S.C. § 2518(5), Frakes

and Abascal also sought total suppression of the wiretap

evidence on this ground.

6 Appendiz

The government argued that these defendants had stand-

ing to challenge minimization on}y as to their own calls;

that the monitoring agents had made a good-faith, if not

completely successful, effort to limit interception; and that,

assuming a failure to minimize, total suppression was not

an appropriate remedy. Following a fourteen-day eviden-

tiary hearing and the submission of briefs, the district

court denied the motion to suppress. This ruling was correct.

[9] On the facts of this case the agents reasonably could

have recorded all the monitored calls during the twelve-day

life of the wiretaps.* We need not, therefore, fix abstract

limits of standing to complain about minimization or dis-

cuss what might be appropriate relief under 18 U.S.C.

§ 2518(5) if minimization were not properly carried out.

[10] The standard of minimization is reasonableness.

Reasonableness must be determined from the facts of each

ease. United States v. Chavez, 533 F.2d 491 (9th Cir.), cert.

denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976) ;

2. The government made three tapes of each conversation. The

first two were sealed immediately and sent to the court and the

United States Attorney’s office. The government says the third tape

was used to aid in the making of synopses of the calls. Each tape

was allegedly used many times, thus automatically erasing the

underlying recordings. Appellants assert that the third tape, unlike

the “santized” versions, ran continuously and was never minimized.

Given our holding, we need not decide the actuality or the pro-

priety of this procedure. We note, however, that while 18 U.S.C.

§ 2518(8)(a) permits the making of duplicate recordings “for use

or disclosure,” it also dictates that authorized recording “be done in

such way as will protect the recording from editing or other altera-

tions,” requires that authorized recordings be made available to the

judge and sealed under his directions immediately upon the expira-

tion of the period of the order, and forbids their destruction except

upon order of the court. We leave to another time the issue of

whether these latter requirements apply to tapes made for use as

well as for disclosure. But it should be obvious that arrangement of

recorders as in this case, involving as it does the destruction of

almost the entire third reeording, makes difficult the enforcement of

the minimization requirement.

Appendiz 7

United States v. Scott, 170 U.S.App.D.C. 158, 516 F.2d 751,

755, cert. denied, 425 U.S. 917, 96 S.Ct. 1519, 47 L.Ed.2d

768 (1976).

[11] In assessing reasonableness in this case, it is sig-

nificant that the life of the wiretaps was very brief. The

officers were investigating a large-scale drug ring in which

the existence but not the identity of coconspirators was

known. See United States v. Turner, 528 F.2d 143, 157 (9th

Cir. 1975). Once a pattern of innocent calls develops, of

course, those monitoring have a duty to terminate their

recording of such calls. United States v. Chavez, 533 F.2d

at 494; United States v. Armocida, 515 F.2d 29, 42-43 (3d

Cir.), cert. denied, 423 U.S. 858, 96 S.Ct 111, 46 L.Ed.2d 84

(1975). In this instance, however, the agents were hampered

not only by the short life of the tap authority and the un-

certain identities of those involved, but by the often guarded

language used on the telephone.

[12] The conversing conspirators frequently discussed

non-narcotic-related matters at the beginnings of conversa-

tions, and often resorted to jargon and code words, a fre-

quent practice in narcotics dealings. United States v.

Chavez 533 F.2d at 494; United States v. Turner, 528 F.2d

at 157-58. Considering the totality of the circumstances, the

recording of all the monitored calls in this case was not a

violation of the minimization requirements.

In light of our determination that there was no failure

of minimization, we need not reach the question whether the

government’s Manual on Electronic Surveillance was dis-

coverable by defendants. See United States v. King, 335

F.Supp. 523, 541 (S.D.Cal.1971), reversed in part on other

grounds, 478 F.2d 494 (9th Cir. 1973), cert. denied, 417 U.S.

920, 94 S.Ct. 2628, 41 L.Fd.2d 226 (1974). The unavailability

of the manual in this case could not have constituted re-

versible error in any event.

8 Appendiz

Il. SEARCH AND SEIZURE

(a) Abascal’s Automobile

Agents began their surveillance of Abascal’s residence

on the evening of March 8, 1973. The next day, agents

stopped Abaseai’s Cadillac with the results already noted.

Abascal asserts five defects in the search of his Cadillac:

(1) the search could not be sustained under 19 U.S.C.

§ 1595a because the officers did not have probable cause to

believe that the Cadillac contained imported contraband;

(2) the officers did not have probable cause to believe that

the ear contained LSD on March 9, 1973; (3) the search

does not fit within any exception allowing warrantless

searches; (4) if there was probable cause to search the

car, the agents had sufficient time to secure a warrant; and

(5) if probable cause did exist, it was tainted by an alleged

illegal prior search.

[13] We need not decide whether there was probable

cause to believe that the contraband in the Cadillac was

illegally imported so as to legalize warrantless seizure

under 19 U.S.C. § 1595a. The search made here was proper

under the moving vehicle exception. Under this exception

all that is required to stop and search an automobile on

the highway is probable cause to believe that it contains

any type of contraband. Coolidge v. New Hampshire, 403

U.S. 448, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers

v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419

(1970) ; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280,

69 L.Ed. 543 (1925). The search is justified by exigent cir-

cumstances because “the car is movable, the occupants are

alerted, and the car's contents may never be found again if

a warrant must be obtained * * *.” Chambers v. Maroney,

399 U.S. at 51, 90 S.Ct. at 1981.

Appendiz 9

[14] The agents had probable cause to believe on the

day of the search that the Cadillac then contained LSD.

Shelly Federgreen, an acquaintance of Abascal, was con-

tacted by agents after they found her number in Frakes’

telephone notebook. In a sworn statement at her attorney’s

office on March 8, 1973, Federgreen said that Abascal had

been at her residence on March 5, with a wine crate con-

taining four large plastic bottles with smaller glass vials

labeled “Golden Hornet”. Abasecal told her it was LSD

worth about $15,000,000. According to Federgreen, Abascal

left the LSD in her apartment overnight, returned March

6, placed the plastic containers in an orange flight bag pro-

vided by her, and, with the bag, left in his Cadillac. Feder-

green gave the agents Abascal’s phone number and address

in Lafayette and told them he had a gir! griend in Berkeley

named Kathy.

Agents placed the Lafayette residence under surveil-

lance, On the morning of March 9, a woman later identified

as Kathy Shull drove, with a dog, in a Porsche automobile

from Abascal’s Lafayette house to the Berkeley campus.

The woman left the dog tied to the Porsche, eluded surveil-

lance by entering a classroom building, and returned to the

Lafayette house in another car with her brother. The

woman then hacked the black Cadillac out of the garage

and drove off, only to be stopped a few blocks away by

other agents who had not been decoyed by her evasive con-

duct in Berkeley.

On March 8, th: agents not only had the benefit of Shelly

Federgreen’s detailed and reliable statements of March 6;

they also had Kathy Shull’s trip to Berkeley and return to

Lafayette to contemplate. The agents had abundant prob-

able cause to believe that contraband was in the Cadillac

when they stopped the car. See United States v. Hills, 464

F.2d 1023 (9th Cir. 1972).

10 Appendix

[15] Abaseal claims that agents delayed too long their

search of the car. He argues that once they had probable

cause, the agents could not evade the warrant requirement

by failing to obtain a warrant and simply awaiting the

arrival of exigent circumstances. But cf. Cardwell v. Lewis,

417 U.S. 583, 595, 94 S.Ct. 2464, 41 L.ld.2d 325 (1974). It

should be obvious from the facts outlined, however, that

whether or not a warrant might have been issued earlier

on the basis of the Federgreen statement, new probable

cause clearly came into the investigation when Kathy Shull

attempted to evade surveillance and flee with the Cadillac.

There is no rule that officers must strike the instant they

have probable cause. See United States v. Watson, 423 U.S.

411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

[16] Abascal also claims that the evidence seized from

his Cadillac was tainted by the agents’ alleged trespass on

his residential property. He says the agents first looked

through the garage window and then searched the Cadillac

while it was parked in the garage during their surveillance

of his residence. Whether the alleged observations and

search actually took place is immaterial in this case because

independent probable cause to search the moving Cadillac

on March 9 came from information wholly untainted by

any prior investigation of the garage. Wong Sun v. United

States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ;

United States v. Brandon, 467 F.2d 1008 (9th Cir. 1972);

United States v. Bacall, 443 F.2d 1050 (9th Cir.), cert.

denied, 404 U.S. 1004, 92 S.Ct. 565, 30 L.Ed.2d 557 (1971).

There was no error with respect to the evidence against

Abascal.

(hb) Search of the Petroff Residence

[17] Frakes seeks to challenge the warrant issued for

the search of the Petroff residence. Because Frakes was

Appendiz 11

charged With possession of the LSD seized at the Petroff

residence, he has standing to move for its suppression.

United States v. Boston, 510 F.2d 35, 37 (9th Cir. 1974),

cert. denied, 421 U.S. 990, 95 S.Ct. 1994, 44 L.Ed.2d 480

(1975). Frakes had no standing, however, to move to sup-

press the other items seized from Petroff’s house. Frakes

was not present at the time of search, and he has asserted

no possessory or proprietary interest in the residence

searched or other items seized. See Brown v. United States,

411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

[18] The search warrant was properly issued, worded,

and executed. Insofar as it covered the subject LSD, it was

sufficiently specific and the affidavit underlying the warrant

provided ample probable cause. There was no error in

denying Frakes’ motion to suppress.

Ill. EXCLUSION OF FRAKES’

PROFFER AS HEARSAY

In his telephone conversations with other conspirators,

Petroff frequently referred to the existence of a “com-

padre”, a “socio”, or “partner”. Starting January 12, 1973,

Petroff began arranging with Abascal and an as yet un-

identified supplier the purchase of an illicit commodity

referred to usually as an “acre”. It appears from the coded

language used by Abascal at one point and references to

“auxiliary materials” that the substance was ergotamine

tartrate. In conversations with Abascal and the supplier,

Petroff repeatedly stressed that he must receive approval

from his partner for the purchase, and in another conver-

sation actually identified this person as “Paul”.

On January 14, Petroff told Abascal that he had tried

to call his partner earlier that day but could not reach him.

Telephone records indicated that he had called Frakes’

12 Appendiz

number that day but received no answer. Immediately after

concluding his conversation with Abascal, Petroff called

Frakes and told him that he “had a small decision to make.”

He asked him if he remembered “old Charlie”, and said “old

Charlie” had an “acre” for sale at twenty-five, a savings

of ten. Frakes protested that “we can’t afford it”, but Pet-

roff insisted that it was too good a deal to pass up. Frakes

also made a reference at one point to a “business like ours”,

and the two discussed the problem of some unnamed others

“serewing up our market.” Throughout the entire conver-

sation, Frakes expressed uneasiness about using his tele-

phone, and finally Petroff offered to complete the discus-

sion from pay phones. Petroff was then observed going to

a nearby public phone booth and making two calls.

The January 14 telephone conversation between Frakes

and Petroff was, therefore, vital evidence. The call estab-

lished Frakes’ relationship with Petroff and consequently

his constructive possession and distribution of the LSD

found in Petroff’s house and that sold by Batchelder to the

undercover agent. That conversation was also the basis of

the charge under 21 U.S.C. § 843(b) that Frakes knowingly

and intentionally used a telephone to facilitate the commis-

sion of crime (the conspiracy). Essential to the govern-

ment’s case was its argument that real estate terms such

as “acre” and “lot”, used in that conversation as well as in

other conversations between Petroff and alleged conspira-

tors, were code words for LSD or ergotamine tartrate.

Faced with the wiretap evidence of this January 14

conversation, Frakes attempted to introduce other tape-

recorded conversations from the same wiretap between Pet-

roff and nonconspirators. The conversations offered by

Frakes allegedly dealt with other business transactions.

Frakes offered these conversations to rebut the govern-

ee

Appendiz 13

ment’s inference that the January 14 Frakes-Petroff con-

versation was about LSD rather than about real eState.

The district court excluded the offered tapes of other con-

versations as liearsay. This was error.

[19, 20] Out-of-court statements are excludable hearsay

if offered to prove the truth of the matter asserted in them.

Fed.R.Evid. 801(a), (c). But the truth of any assertions in

the conversations Petroff had on the telephone is immate-

rial to this case. Frakes did not offer the conversations to

prove the truth of any assertions therein, but rather to

show a pattern of Petroff’s verbal behavior on the tele-

phone that was consistent with Frakes’ argument that the

January 14 call was about an innocent real estate deal.

Frakes had a right to argue to the jury Frakes’ theory of

the conversation upon which the government was building

its case against Frakes.

The government’s portion of the tape included words

commonly used in discussing real estate transactions. The

government claimed these words were code words for drug

quantities and prices. Frakes claimed these words (lots,

acres, and price quotations) were not code words at all, but

actually were routine communications about real estate

deals. Whether or not Frakes could prove it, he had the

right to use any available evidence to argue to the jury that

the real estate language was not code language. The re-

jected tapes contained references to “lots”, and, it could

be argued, other words capable of relating to real estate

transactions, as Frakes contended, The question was one

for the jury. The exclusion of the tapes offered by Frakes

denied him the right to present an important part of his

defense, and was prejudicial error.

Frakes’ convictions on the substantive counts, including

the count for misuse of the telephone, must be reversed and

remanded.

14 Appendiz

IV. SUBSTANTIAL EVIDENCE

OF CONSPIRACY

The conspiracy count, however, was not affected by the

erroneous exclusion of the tapes and is fully supported by

other evidence.

[21] Coded notebooks linked Frakes and Petroff with each

other and with Abascal. A list of European chemical com-

panies which manufactured ergotamine tartrate, a chemical

compound used in the manufacture of LSD, was seized at

Petroff’s residence. It was in Frakes’ handwriting. In a

passport application Petroff listed Frakes’ telephone num-

ber as his own. Frakes’ telephone notebook contained the

number of Sheily Federgreen, a friend of Abascal. The

same number was found in Petroff’s telephone notebook as

a number for “Mick” (a nickname used by Abascal). When

Petroff’s home was searched on January 22, 1973, in addi-

tion to the list of Frakes’ handwriting agents also found a

coded notebook which, when deciphered, was found to con-

tain Frakes’ telephone number,

Excluding the actual content of the January 14 call, the

events preceding it provide additional links between Frakes

and the conspiracy. Following the call, moreover, Petroff

flew from San Diego to meet with Abascal at a restaurant in

Los Angeles and, after leaving the restaurant, took a taxi-

cab to Frakes’ house where Petroff spent two hours. There

is no way the excluded evidence could have helped Frakes

rebut the conspiracy case.

V. REFUSAL TO GIVE INSTRUCTIONS

[22] The court refused three of Abascal’s requested in-

structions and one requested by Frakes. None of these

points requires extensive discussion. In Abascal’s case, the

instructions given were better than those requested. In

ee RS ete Se rer nen ee ae a ee eh st ee et > ae ee 2 te

ee ee +

ES BOT Ce Te

Appendix 15

Frakes’ case, another trial, if there is one, will call for new

instructions in light of the evidence then before the court.

VI. EXCLUSION OF ABASCAL’S

EVIDENCE ON COLLATERAL MATTERS

[23] Abascal assigns error to the court’s refusal to per-

mit him to call witnesses to impeach the surveillance team

as to testimony given at the suppression hearing with refer-

ence to the evidence seized from Abascal’s Cadillac and to

prodnce and conduct an experiment on the car. All this evi-

dence, if material, should have been offered in the suppres-

sion hearing. When offered at the trial, in an attempt to

impeach the government agents, it was merely impeachment

on collateral matters. Lenske v. Knutsen, 410 F.2d 583, 585

(9th Cir. 1969). A trial judge has wide discretion in dealing

with such impeachment. Ramirez v. United States, 294 F.2d

277, 282 (9th Cir. 1961); Gage v. United States, 167 F.2d

122, 125 (9th Cir. 1948).

There was no error here in dealing with the offered evi-

dence.

VII. PROSECUTORIAL MISCONDUCT

[24] Defendants allege prosecutorial misconduct in de-

layed surrender of government evidence to the defense.

Even if there was prosecutorial footdragging in turning

over evidence, Abaseal and Frakes have shown no prejudice.

United States v. Baxter, 492 F.2d 150 (9th Cir. 1973), cert.

denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974) ;

United States v. Banks, 383 F.Supp. 389 (D.S.D.1974),

appeal dismissed, sub nom. United States v. Means, 513 F.2d

1329 (8th Cir. 1975). ?

With respect to fingerprint evidence, Abascal alleges that

the government (1) failed to obey discovery orders, and (2)

16 Appendix

manufactured the evidence admitted at trial. The finger-

prints in question are those taken from the plastic bags

and bottles found in the Cadillac.

The court ordered the prosecution to turn over all finger-

prints and to make any fingerprint lifts in its possession

available for microscopic examination. The government

obtained both photographs and lifts of the prints. The

photographs were shown to Abascal on August 3, 1973, the

date ordered by the court, and were eventually admitted as

evidence at trial. The government disclosed the content of

the report on the lifts. The lifts and report were lost and

never introduced as evidence. Discovery orders on the

fingerprints were followed.

The alleged fabrication occurred on August 3, 1973, the

date evidence was made available for defendant’s examina-

tion. Abascal now says he handled the objects at that time

and created the prints that were admitted at trial.

[25] The jury heard testimony on both sides concerning

fabrication. This was evidence to be weighed by the jury

in reaching their verdict. It is not within our province to

reweigh these facts. A. € G. Stevedores v. Ellerman Lines,

369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962).

VIII. AMENDMENT OF THE INDICTMENT

Both defendants complain about the district court’s

“amendment” of their indictment on the conspiracy charge.

The indictment alleged:

“{ Defendants] did knowingly and intentionally com-

bine, conspire and agree together and with each other

* * * to knowingly and intentionally import, distribute

and possess with intent to distribute LSD * * *.”

At a pretrial hearing upon a motion, an alleged cocon-

spirator, Demiraiakian, complained about the vagueness

Appendiz 17

of the indictment. At that hearing, the trial court noted that

the conspiracy alleged in the conjunctive three illegal acts

or goals. The court, without researching the issue, verbal-

ized the theory that proper pleading should have broken up

the conspiracy count into three different counts, but that

since the government pleaded it in one count the court would

require for conviction proof of all three elements: impor-

tation, possession, and distribution.

[26, 27] This theory was incorrect. The government may

charge in the conjunctive form that which the statutes de-

nounce disjunctively, and evidence supporting any one of

the charges will support a guilty verdict. United States v.

Hobson, 519 F.2d 765 (9th Cir.), cert. denied, 423 U.S. 931,

96 S.Ct. 283, 46 L.Ed.2d 261 (1975); McGriff v. United

States, 408 F.2d 333, 334 (9th Cir. 1969). Further, while the

law of conspiracy does not allow a single conspiracy which

violates several laws to be charged as multiy le conspiracies

(United States v. Basurto, 497 F.2d 78i, 791 (9th Cir.

1974); Braverman v. United States, 317 U.S. 49, 63 S.Ct.

99, 87 L.Ed. 23 (1942)), the government may allege a single

conspiracy in several counts to meet the uncertainties of

the evidence (United States v. McKnight, 253 F.2d 817 (2d

Cir. 1958); United States v. Maryland State Licensed Bev-

erage Association, Inc., 240 F.2d 420 (4th Cir. 1957)). The

district court should not have indicated preliminarily that

the government had to prove all three of the objects of the

conspiracy in the conjunctive.

[28] At the close of the government's case, defendants

made a motion for a judgment of acquittal on the grounds

of a failure to prove importation, The district court agreed

that there was no evidence of importation, but simply struck

the word “import” from the face of the indictment. This act,

in effect, reversed the court’s earlier opinion that the

18 Appendix

government had to prove all the elements, in the conjunc-

tive. While awkward, the court’s action did not create a

reversible error.

Both defendants assert that the alteration of the indict-

ment by excising the word “import” from the conspiracy

count violated the principle first enunciated in Ez parte

Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), that a

trial court may never alter or amend an indictment. See

also United States v. Hobson, supra; United States v. Daw-

son, 516 F.2d 796, 800 (9th Cir.), cert. denied, 423 U.S. 855,

96 S.Ct. 104, 46 L.ld.2d 80 (1975).

[29] The Supreme Court, however, no longer adheres to

the absolute letter of the Bain rule (Salinger v. United

States, 272 U.S. 542, 548-549, 47 S.Ct. 173, 71 L.Ed. 398

(1926) ), and Bain has been limited to its facts (Salinger v.

United States, 272 U.S. at 549, 47 S.Ct. 173; United States

v. Hobson, 519 F.2d at 774). The current view of “amend-

ing” an indictment is that matters of form and surplusage

may be “read out” of the indictment by instruction to the

jury if the defendant is not prejudiced thereby. See, e.g.,

United States v. Edwards, 465 F.2d 943 (9th Cir. 1972);

Heisler v, United States, 394 F.2d 692 (9th Cir.), cert.

denied, 393 U.S. 986, 89 S.Ct. 463, 21 L.Ed.2d 448 (1968).

The instant case differs from Edwards and Heisler in that

the alteration here was physically made on the face of the

indictment. It seems anomalous, however, to allow a trial

judge to water down an indictment by instructing the jury

to disregard one of its allegations, yet to forbid any physi-

cal alteration on the fact of the indictment. This elevation

of form over substance is wholly inconsistent with modern

criminal pleading. See Fed.R.Crim.P. 2; 1 C. Wright & A.

Miller, Federal Practice & Procedure §§ 31-32 (1969). We

doubt that Bain has continuing validity in forbidding the

physical striking of material that is patently surplusage.

Appendiz 19

As noted above, there was no need for the government

to prove all three elements in the conjunctive. Accordingly,

the term “import” was indeed surplusage. Defendants claim,

however, that the judge’s earlier statement was a ruling

which made proof of that element mandatory for this case

and, further, that they relied on that ruling to their detri-

ment, orienting their defense entirely to defeating the im-

portation count.

his argument, by these defendants, has a hollow ring.

The trial judge’s initial ruling simply did not apply to their

cases. The motion to clarify the indictment was made only

by Demiraiakian. Neither of these appellants joined the

motion, Their present effort to capitalize on it is clearly an

afterthought.

Eleven defendants and their attorneys presented literally

dozens of pretrial motions to the trial judge. The interests

of the various alleged coconspirators were not necessarily

congruent. The judge insisted upon dealing with each de-

fendant’s motions in turn and passing upon each motion of

each defendant to avoid confusion and misinterpretation.

Even though most of the motions were repetitive, virtually

identical demands for discovery orders, the judge stated

on each motion that his ruling applied only to the particular

defendant then before him and would apply to any others

only if they specifically and explicitly made a request to

join in that particular motion.

Moreover, it is highly unlikely that the defendants were

in fact prejudiced by the Demiraiakian ruling. They were

aware, of course, that the judge’s “ruling” applied only to

Demiraiakian, was given “off the cuff” and was over a year

old by the time of the trial. There was ample opportunity

for the defense to secure a good working knowledge of the

contours of the government’s case and prepare an adequate

20 Appendix

defense to all the elements of the conspiracy charge. Those

who have read thus far will have noted that the defense was

thorough and that no possible point was left untouched.

IX. PREJUDICIAL PUBLICITY

DURING THE TRIAL

[30] Defendants also allege error in the refusal of the

trial judge to inquire of the jury as to its exposure, if any,

to six newspaper articles which appeared during the two-

month trial. The trial judge, of course, has the duty to

detect any contaminating influences on the jurors’ delibera-

tions and take appropriate steps to rectify improprieties.

United States v. Polizzi, 500 F.2d 856, 880-881 (9th Cir.

1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d

820 (1975). See Silverthorne v. United States, 400 F.2d 627,

643 (9th Cir. 1968), appeal after remand, 430 F.2d 675

(1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d

33 (1971).

[31] Here the trial judge refused to interrogate the

jurors because he found that the articles were not prej-

udicial. Two of the articles appeared on September 6, 1974.

One concerned the denial of a recusal motion and the other

reported the selection of the jury. Two more appeared on

October 2, 1974. The first discussed a motion to hold a

witness in contempt for his alleged failure to testify truth-

fully during the pretrial motions. The other concerned the

general problem of a faulty wiretap authorization scheme

instituted by the then Attorney General. Finally, two more

articles appeared on October 9, 1974. Both announced the

hitherto secret indictment of Michael Green, an alleged

associate of the defendants in the LSD venture, on the

occasion of his plea of innocent.

The articles were, for the most part, short, routine,

factual descriptions of court proceedings, appearing in the

Appendix 21

middle and back pages of the newspapers. Two of the

articles contained only tangential reference to the case and

one of them was related to but one issue in this case and

only in the most abstract fashion. Only the claim that this

was “the largest LSD seziure ever made in this country”

(also phrased as “the largest LSD case ever prosecuted in

this country”), which was made in both of the September 6

articles and the October 2 contempt article, was arguably

incorrect and arguably prejudicial. This does not qualify

as material which is either “spectacular or inflammatory,”

Gawne v. United States, 409 F.2d 1399, 1401 (9th Cir. 1969),

cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.£d.2d 123 (1970)

(pretrial publicity).

It is also true that the contents of most of the news items

would have been irrelevant at trial and that there have

been occasions where exposure of jurors to such evidence

has been found prejudicial. See, e.g., Sheppard v. Maxwell,

384 U.S, 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) ; Marshall

v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250

(1959) ; United States v. Pomponio, 517 F.2d 460 (4th Cir.),

cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386

(1975). If any of the information in these articles was in-

admissible however, it was not because of possible prejudice

but because of simple lack of relevancy. We cannot say that

the trial judge abused his discretion. There was no prej-

udice, and no basis for a new trial.

X. CONCLUSION

The judgment against Abascal is affirmed. The judgment

against Frakes on the conspiracy count is affirmed. The

judgment against Frakes on the substantive counts is re-

versed and remanded.

22 Appendiz

Appendix B

United States Court of Appeals

for the Ninth Circuit

FILED

DEC 2 1977

Emm. E. MEtrFt, Jr.

Clerk, U.S. Court of Appeals

Unitep States oF AMERICA,

Appellee,

vs No. 75-1093

MaNveEL GLENN ABASCAL,

Appellant.

Unitep States oF AMERICA,

Appellee,

v. No. 75-2052

Pavut Gorpon FRAKEs,

A ppellant.

Appeal from the United States District Court

for the Southern District of California

Before: TRASK, GOODWIN, and WALLACE,

Cireuit Judges.

ORDER

On petition for rehearing, Abascal claims that he is

entitled to the same relief granted Frakes because of the

trial court's error in excluding the portions of the tapes

the government succeeded in keeping out after playing the

parts the government wanted the jury to hear. While

Abascal did not raise the point in his voluminous brief, and

Appendiz 23

thus technically did not bring it before us on his appeal, he

did object at the time of the trial court’s ruling. The exclu-

sion of the defense evidence, however, did not affect Abascal

as much as it affected Frakes.

Abascal did indeed use code words in his calls to Petroff.

But the frequency, pattern, and content of the calls and

their direct and obvious relationship to other overt acts

undertaken on behalf of the conspiracy drastically reduced

the significance of that fact as part of the government’s case.

We are satisfied that, given the limited evidentiary purpose

of these tapes, their exclusion did not substantially preju-

dice the fairness of Abascal’s trial. United Staies v. Puchi,

441 F.2d 697, 702 (9th Cir.), cert. denied, 404 U.S. 853

(1971).

The other points urged in the appellants’ petitions for

rehearing present nothing new and no basis for further

modification of our judgment. The panel has voted to

deny the petitions for rehearing and to reject the sugges-

tions for rehearing en banc. The full court has been advised

of the suggestions for rehearing en banc, and no judge of

the court has requested en banc consideration.

Abascal’s petition for rehearing with suggestion for

rehearing en bane, filed March 31, 1977, and Frakes’ petition

for rehearing with suggestion for rehearing en bane, filed

April 7, 1977, are both denied as to the petitions for

rehearing and rejected as to the suggestions for rehearing

en banc.

FOR PUBLICATION