Petition — Bracy v. United States
Supreme Court brief1978
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A
Ga x: Court, US,
FILED 4
MAR 24 1978
MIC
LAICHAEL RODAK. J CU
Supreme Court ‘of the Gnited States
OCTOBER TERM, 1978
No @7-1360
BOYER ALFREDO BRACY and
SANDRA DENISE MARTIN,
Petitioners,
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
WILFRED C. RICE ( P 19411)
2436 Guardian Building
Detroit, Michigan 48226
965-7962
Attorney for Appellants
Washington. OC. @ CLE PUBLISHERS © LAW PRINTING CO « (202) 393-0625
(i)
TABLE OF CONTENTS
CITATIONS OF OPINIONS BELOW ................
FER GSES dc bbs coc wdtdden scddedsccacdés.
STATEMENT OF ISSUES IN SUPPORT OF
PETITION FOR CERTIORARI ..... anahakne ncane
PE IEE Sins Gwen si buis inks cpenccccceses
REASONS FOR GRANTING WRIT:
1. AN ACCUSED’S CONVICTION
SHOULD NOT BE UPHELD WHERE
THE CONDUCT OF THE PRETRIAL
AND TRIAL JUDGE, AGAINST THE
ACCUSED AND IN FAVOR OF THE
PROSECUTION, SURPASSES THE
PERIMETER OF ERROR AND VEN-
TURES INTO THE PERIPHERY OF
RSE “Sh ewenercdsiseracedccccess
IlL(a) AN ACCUSED’S CONVICTION
SHOULD NOT BE UPHELD WHERE
THE TRIAL JUDGE REFUSES TO
HONOR DECISIONS OF THE SU-
PREME COURT; WHEREIN, THOSE
DECISIONS AFFECT THE JURY DE-
LIBERATIONS AND THE ADMISSI-
BILITY OF EVIDENCE, PROBATIVE
ON THE QUESTION OF AN AC-
EE SEED Sdpecccoorancabdcocccecces
(b) THE ARREST OF APPELLANT
BOYER BRACY, IN THE EASTERN
DISTRICT OF MICHIGAN WAS IL-
LEGAL AND ANY EVIDENCE DE-
RIVED, AS A RESULT THEREOF
WORE SPEED |. occ cccnccascnversoces
(ii)
Page
Il. THIS COURT’S DECISION IN
UNITED STATES V. AGURS, 427 U.S.
97 (1976) DID NOT APPROVE PER-
JURED TESTIMONY IN THE PRO-
CUREMENT OF AN INDICTMENT,
AND POST INDICTMENT MISCON-
DUCT OF FEDERAL AGENTS AND
THE PROSECUTOR IN THE CON-
CEALMENT OF THE PREINDICT-
MENT PERJURY FROM THE COURT,
OPPOSING COUNSEL AND THE
GRAND JURY, WHERE THE APPEL-
LATE COURT HAS PROSCRIBED
SUCH PERJURY AS TAINTING THE
INDICTMENT AND MAKING THE
SE THEE wad cade cdccawandbdbddenecccces 22
IV. CONSANGUINIAL AND INTIMATE
RELATIONSHIPS BETWEEN PAR-
TIES TO AN ALLEGED CONSPIR-
ACY IS NOT A SUFFICIENT NEXUS
OF THEIR PARTICIPATION THERE-
PA Pe Sr 2 ee 28
GE” bc dbdbevedebebeceUasesredeaccecoss 30
APPENDIX
a cite bac huncdeghastetscesteoge-ces la
Copy of indictment in Margaret Canada case.......... l6a
Copy of indictment in Stephanie Gurley case.......... 19a
Copy of Grand Jury testimony of James
Py sncchccbccrccesvaionssesehoseedees 22a
a «no nsencurskskdeaumeeeanneuneens 2la
(iii)
Page
Excerpts from Evidentiary Hearing Transcript.......... 33a
Excerpts from trial transcript....................0005- 22a
Excerpts from instructions to jury..................... 36a
Opinion of the Ninth Circuit Court of
te. cuveuatneasn hone rd nodes cess wheseseeete 57a
Order denying Petition for rehearing .................. 78a
TABLE OF AUTHORITIES
Cases:
Delli Paoli v. United States, 352 U.S. 232, 237
el ee ee i ns deenegues 18
Geders v. United States, 425 U.S. 80, 98 S. Ct.
Di tic iCindde cade edad edd deeheegibensshesesos< 12
Gullo v. United States, 302 U.S. 764, 82 L.Ed.
dt ceadebetndsddiud ke pddbanss pandas ene sens 29
Kotteakos v. United States, 328 U.S. 750
ie ah oo oe eas emnss nes 17,19
Krulewitch v. United States, 336 U.S. 440, 442
ee Mey «Manta iintd cies chhwse ed ee se 18
Marino v. United States, 91 F.2d 694................. 29
Mooney v. Holohan, 294 U.S. 103.................... 10
Ong Way Jong v. United States, 245 F.2d
iis cost nti ntee ded peeednReeeeeonnasey eens 29
Schneckloth v. Bustamonte, 412 U.S. 218
Ne aed in teed eneabaenshecnta 22,24
United States v. Agurs, 427 U.S. 97, 96 S. Ct.
2392, 49 L.Ed.2d 342 (1976) .............. 3,22,26,27
United States v. Basurto, 497 F.2d 781 (CA. 9,
ll ie he ks cena cine ack 6,11,12,26,27
(iv)
Page
United States v. Butler, 494 F.2d 1246 (CA.
DE Farts ¢ 0000 poss 060keiaeeclel neeeeeadesaeene 17
United States v. Chadwick, 433 U.S. 1, 53 L.Ed.
Soe ee GA Be chin ceca seadakekeresne: 14,16,25
United States v. Daily, 282 F.2d 818 (CA. 9,
PEs ve cveccccuctacepeebntweaconnel neues sanéees 17
United States v. Davis, 482 F.2d 893 (CA. 9, |
GPUs vnscdbcuvaguccanecseseta tienen 22,23,24
United States v. Evans, 257 F.2d 121 (CA. 9,
ees rie eS ee 29
United States v. Gardner, 475 F.2d 1173 (CA. 9,
BOO. on civeevesccncbadedenansenneaeeiesae 29
United States v. Guana-Sanchez, 484 F.2d 590
CCR, Fe Tec ccccecuseespaeueeswaseeeseceesiams 2i
United States v. Hindmarsh, 389 F.2d 137, 148
CCR. G, Ge oc caddveccdédeonas udendeteenticoee 18
United States v. Margaret Canada, et al., 527
Fae CEOS voce cuvesdedcccdeteesiaeeseeeaee passim
United States v. Matlock, 415 U.S. 164, 94
S. Ct. 988, 39 L.Ed.2d 242 (1974)........... 22,24,25
United States v. Rocha, 288 F.2d 545 (CA. 9
FRED: uc cccccecescessehseeee usenet 17
United States v. Russano, 257 F.2d 712................ 17
United States v. Stephanie Marie Gurley, 549
Pf eS eee 4,5,7,16
United States v. Upshaw, 448 F.2d 1218, 1222,
cert. den., 405 U.S. 206, 217; 80 S. Ct. 1437,
£OG6, 6 CLR OG CED fic ccveseccaecdedasuneasses 10
United States v. Varelli, 407 F.2d 735 (CA. 7,
SUMIE. 0 60 000000000086000000e00ennneeee 17
Wong Sun v. United States, 371 U.S. 471, 83 S. Ct.
ee” ee ee 21
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1978
No.
oe
BOYER ALFREDO BRACY and
SANDKA DENISE MARTIN,
Petitioners,
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
Petitioners pray that a Writ of Certiorari issue to review
the judgment of the United States Court of Appeals for the
Ninth Circuit entered in this cause December 23, 1977 and
Petition for Rehearing with suggestion of appropriateness
for a Rehearing En Banc being denied February 28, 1978.
CITATIONS OF OPINIONS BELOW
The judgment and commitment of the District Court
adjudging the Petitioners Guilty of Counts I, II, ITI and IV
of the Indictment. Boyer Alfredo Bracy was sentenced to
serve fifteen (15) years concurrently on each Count, twenty
2
(20) years special parole and a Twenty-Five Thousand
($25,000.00) Dollar committed fine. Sandra Denise
Martin was sentenced to serve three (3) years concurrently
on each Count, plus five (5) years special parole. These
sentences were imposed October 4, 1976. The decision of
the Court of Appeals affirming the judgment of the trial
Court December 23, 1977. Denial of a Petition for
Rehearing with suggestion of the appropriateness of a
Rehearing En Banc February 28, 1978.
JURISDICTION
The Order of the Court of Appeals was entered February
28, 1978. The jurisdiction of this Court is invoked under
Title 28, Section 1254(1) U.S.C.
STATEMENT OF ISSUES IN SUPPORT
OF PETITION FOR CERTIORARI
1. Shouid an accused’s conviction be upheld where
the conduct of the pretrial and trial judge, against
the accused and in favor of the prosecution,
surpasses the perimeter of error and ventures into
the periphery of arbitrariness?
Appellant contends, “NO.”
2. Should an accused’s conviction be upheld where
the trial judge refuses to honor decisions of the
United States Supreme Court; wherein, those
decisions affect the jury deliberations and the
admissibility of evidence, probative on the ques-
tion of an accused’s guilt?
3
Appellant contends, “NO.”
3. Does this Court’s decision in United States v.
Agurs, 427 U.S. 97 (1976) approve perjured
testimony in the procurement of an indictment,
and post indictment misconduct of federal agents
and the prosecutor in the concealment of the
preindictment perjury from the Court and oppos-
ing counsel, where the Appellate Court has
proscribed such perjury as tainting an indictment
and making the same void? ua
Appellant contends, “NO.”
RELEVANT FACTS
In the instant case, Appellants were indicted, with
several other persons as violators of Title 21 U.S.C. 963
(Conspiracy to illegally import a controlled substance; Title
21 U.S.C. 952, 960 and 963 Illegal importation of a
controlled substance); Title 21 U.S.C. 846 (Conspiracy to
possess a controlled substance with intent to distribute),
and Title 21 U.S.C. 841(a)(1) (Possession of a controlled
substance with intent to distribute). Trial was to a jury, who
convicted Appellants on all four (4) Counts.
Appellant Bracy, who at age twenty-four (24) years, with
no prior felony record, was sentenced to serve fifteen (15)
years concurrently on all four (4) Counts, plus twenty
(20) years special parole and Twenty-Five Thousand
($25,000.00) Dollars committed fine.
Appellant Martin, who at age twenty-two (22) years,
with no prior record, was sentenced to serve three (3) years
plus five (5) years special parole.
The Ninth Circuit Court of Appeals affirmed the District
Court’s conviction December 23, 1977. Petition for
4
Rehearing with suggestion of the appropriateness for
rehearing en banc was denied and rejected February 28,
1978.
Appellant Bracy remains at liberty under Two Hundred
Thousand ($200,000.00) Dollar surety bond. Appellant
Martin remains at liberty under Ten Thousand
($10,000.00) Dollar personal bond.
There is no dispute that, neither Appellant were ever
claimed to have been in actual physical possession of any of
the narcotics presented as evidence in their case. Nor is it
disputed that, neither of the Appellants were shown to have
been in the same state when the drug seizures were made, or
closely connected with the actual possessors at the time of
the seizures or thereafter. The trial judge, over objection,
allowed, as evidence at Appellants’ trial, drug seizures from
two (2) other unrelated cases to come in as evidence against
Appellants.
The first drug seizure was made in the case of United
States v. Margaret Canada, et al., 527 F.2d 1374. The
Canada seizure was made February 17, 1975. There is no
prosecutorial claim that either Appellant, in any way,
participated in the Canada possession and conspiracy.
There was no evidence that either Appellant was in the
State of California at the time or knew the Canada
conspirators.
The second drug seizure was made in the case of United
States v. Stephanie Marie Gurley, 549 F.2d 809.
Defendant Gurley was alone with her minor daughter, at
the time of the seizure. She testified. at her trial, that she did
not know Appellant Bracy, and although, Appellant Martin
was a personal friend, they were not concertedly engaged in
a criminal enterprise. The Gurley seizure occurred March
21, 1976 at the U.S.-Mexican border.
5
Appellants Bracy and Martin were arrested in Detroit,
Michigan, as conspirators with an informant, James
Howard Porter, who himself was a native Michigander,
recently migrating to Los Angeles, California. Their
alleged conspiracy was totally unrelated to the Canada
conspiracy and seizure, and the Gurley seizure. Porter
testified that he had no dealings or communications with
any of the parties in Canada, supra or Gurley supra and
only knew Canada as a friend of Bracy.
When Porter became aware of the fact that, Federal
authorities in San Diego were trying to make a case on
Boyer Bracy, Porter and another person, Gilbert Lomas,
envisioned a scheme to extort a large sum of money from
the Bracy family, or be paid by the Federal Government to
testify against the Bracys. Porter went before the Grand
Jury April 14, 1976 and testified falsely. Thereafter, he
communicated further with the Bracy family in Detroit,
Michigan, advising them that if he did not get the Twenty-
Five Thousand ($25,000.00) Dollars demanded, he would
have to tell Federal authorities a different story from that he
had told the Grand Jury April 14, 1976. At the same time,
Porter was being paid by the Government for his
cooperation. He testified, at trial, that he was intentionally
feeding the Government bits and pieces of information, just
sufficient enough to secure his continued income, until the
Bracy extortion plot materialized.
When it became apparent to Porter that, the Twenty-
Five Thousand ($25,000.00) demanded from the Bracys, in
exchange for silence, was not forthcoming, Porter became
angry and told the Prosecutor and the investigating agents
that he committed perjury when he testified before the
Grand Jury April 14, 1976. He then told the listeners a
different story designed to show a drug smuggling
6
conspiracy between himself, Appellant Boyer Bracy, Jerry
Word, Juanita Kendricks (Boyer Bracy’s Mother) and
Sandra Martin (Bracy’s girlfriend). This relevation oc-
curred April 26, 1976, almost two (2) weeks after Porter
had testified before the Grand Jury.
Porter’s disclosure of perjury to the Prosecutor and
Federal Agents was not disclosed to the trial judge or the
defense lawyers. The Prosecutor sent case Agent, William
Lunsford, to the Grand Jury, instead of Porter. The Grand
Jury was not informed that Porter had confessed perjury.
Lunsford told the Grand Jury that he had interviewed a
person by the name of James Howard Porter, who had
related certain facts to him concerning drug smuggling
activity. Lunsford, nor the Prosecutor explained to the
Grand Jury that this was the same man that testified before
them differently two (2) weeks before.
Under the claim of unwillingness to disclose his evidence
to the defense, the prosecutor succeeded in concealing the
“Porter Perjury.” The “Porter Perjury” first surfaced on
defense cross-examination, during trial. Routinely, defense
counsel moved for dismissal of the indictment under the
authority of United States v. Basurto, 497 F.2d 781 (CA.
9, 1974).
The trial judge agreed that Appellants were entitled to be
tried on an indictment cleansed of perjury, pursuant to
Basurto, supra; however, since the issue of “double
jeopardy” was then obvious, the Court was only willing to
grant defense relief, if Appellants and counsel would move
for mistrial in a manner so as to waive any future claim of
double jeopardy. The defense declined the Court’s offer and
suggested that the Court should declare a mistrial, on the
Court’s own motion. Thereupon, the Court denied the
defense motions for dismissal and refused to declare a
mistrial on his own motion.
The trial judge refused to allow defense counsel for
Appellant Bracy to cross examine Porter, to show that
Porter has been a homosexual most of his life; that Porter
was in love with Appellant Boyer Bracy, who had spurned
Porter’s sexual advances, which the defense claimed was
the principle motive for Port_r’s testimony against Appel-
lants. Moreover, the trial judge would not allow the defense
to show that, Porter, who has a long record of confinements
in Michigan Prisons, has a long history of mental illnesses
and is not a reliable witness.
The trial judge ruled, as a matter of law, that the Canada
conspiracy and seizure February 17, 1975, the Gurley
seizure March 21, 1976 and the Bracy, Porter and Lomas
conspiracy of January, 1976 was one continuing ongoing
conspiracy and refused to give a defense request to charge
the jury on the issue of multiple, as opposed to a single
conspiracy.
After a substantial period of deliberation, the jury asked:
““does the absence of physical handling of the contraband
still constitute guilt under Counts 2 and 4?’’ Over defense
objection, the trial judge read to the jury the definition of
“aiding and abetting” and refused to give defense requests
that the jury be likewise instructed on mere possession,
mere presence and conspiracy.
Motions for acquittal at the end of the Government’s
case, at the end of the defense proofs and post conviction,
were all denied.
The Ninth Circuit Court of Appeals affirmed the District
Court, for the Southern District of California on all issues,
raised on appeal.
™
8
REASONS FOR GRANTING WRIT
L
AN ACCUSED’S CONVICTION SHOULD
NOT BE UPHELD WHERE THE CON-
DUCT OF THE PRETRIAL AND TRIAL
JUDGE, AGAINST THE ACCUSED AND
IN FAVOR OF THE PROSECUTION, SUR-
PASSES THE PERIMETER OF ERROR
AND VENTURES INTO THE PERIPHERY
OF ARBITRARINESS. |
During the trial of the instant cause, the District Judge
refused to honor decisions of the Appellate Court of the
Ninth Circuit and the United States Supreme Court, on the
issues before the Court at the time. The Court’s rejection of
relevant appellate authority was not premised upon
distinguishing features of the cases, or some other legal
basis for declining to follow greater authority; but rather, his
Honor’s personal conviction that appellants should not be
exonerated by these authorities. It was patently obvious
that, the Court was personally bent toward conviction,
regardless of the facts and law. During arguments on a
Motion to Dismiss the Indictment, his Honor said: (At-T.
779)!'
“If you feel that your client’s positions are such that
they haven’t—can not receive a fair trial, J will hear
you make a motion for mistrial, but I will not grant a
judgment of acquittal. I don’t think the misconduct of
their behavior or on the part of Mr. Peterson is such
that these defendants can go scot-free, assuming a jury
should find them guilty.” (Emphasis Added)
“T” preceding a number connotes trial transcript page reference.
(At T. 782)
“Well, counsel, I am saying that I am not dismissing
the indictment. J am not granting a judgment of
acquittal, and if counsel wishes to make a motion for
mistrial, I will hear them.”’ (Emphasis Added)
(At T. 784)
“It is up to you, counsel, if you wish to make a motion
for mistrial without any caveats, I will consider it, but J
will not consider it if there are any strings attached.
MR. BELL:
THE COURT:
MR. BELL:
THE COURT:
MR. BELL:
THE COURT:
MR. BELL:
THE COURT:
How, Your Honor, can we correct
the error that has occurred?
That is for Mr. Peterson. I don’t
know how it can be corrected. That
is for him. I am assuming that, if I
grant your motion for mistrial, that
Mr. Peterson should have notified
you, should have done at least one
of the three things—
They did one of the things in
Basurto. The prosecuting attorney
did notify the lawyers. He didn’t
notify the Court or Grand Jury.
Here, he has done nothing.
So he didn't do anything.
May I have an opportunity to
consult with counsel?
You may. When you gentlemen
discuss it, if a mistrial is to be
granted, it will be on your motion,
not the Court’s motion.
Well, I understand that, Your
Honor.
And if Mr. Peterson can correct the
errors, that is his problem.”” (Em-
phasis Added)
10
(At T. 786)
“THE COURT: All right. Maybe I am wrong, but
this is my ruling, Counsel, and you
can accept a mistrial or we will
proceed with this trial.
MR. RICE: Your Honor, may I ask this ques-
tion; will you give us—or at least
me and my client—leave for time to
take an appeal to the Ninth Circuit?
THE COURT: No.Iwon’t give you time. You may
pursue any right that you have,
Counsel. I don’t see that I have to
give you any time.” (Emphasis
Added)
The iaw is abundantly clear that, whenever the Court is
convinced if the presence of error, that may affect the
fairness of judicial proceedings, he is obliged to “sua
sponte” declare a mistrial, regardless of future prosecu-
torial consequences. Mooney v. Holohan, 294 U.S. 103;
United States v. Upshaw, 448 F.2d 1218, 1222; Cert. den.,
405 U.S. 206, 217; 80 S. Ct. 1437, 1444; 4 L.Ed.2d 1669.
Here, the Court clearly expresses his awareness of the
presence of prosecutorial error warranting, at a minimum, a
mistrial. Yet, he was hesitant to grant any relief, if doing so
paved an avenue of escape for the Appellants. The Court
persisted that, the defense lawyers, who stand in different
position, obligatory to his client, than the Court, and even
the prosecutor, had to request the relief the Court believed
Appellants were entitled to, and waive any constitutional
rights that Appellants may have in connection therewith.
Here, the Court’s conduct reaches far beyond the pyramid
of judicial error.
The issue before the Court centered around an in Court
discovery of perjured testimony by the prosecution’s
principal witness before the indicting Grand Jury. The co-
conspirator witness had informed the prosecutor and
government agents of his perjury some four (4) months
before trial. Although several Court appearances had been
conducted in the interim, the prosecutor said nothing about
the witness’ perjury before the Grand Jury. As a matter of
fact, the prosecutor used every possible ploy to conceal the
existence of perjury, such as refusing to give discovery and
making spurious objections when defense counsel com-
menced questioning the witness about his Grand Jury
testimony.
The witness was a paid Government informer, who, by
his own acknowledgment, was using the Government as an
instrument to extort Twenty-Five Thousand ($25,000.00)
Dollars from the Appellants. When the Appellants refused
to yield to the extortion plot, in a fit of anger, the witness
told the prosecutor and government agents that his Grand
Jury testimony was false. The witness was never taken back
before the Grand Jury, before tial and never mentioned the
disclosure to anyone.’
In United States v. Basurto, 497 F.2d 781 (CA. 9,
1974) the Ninth Circuit Court of Appeals held that: At
785-786
“The due process clause of the Fifth Amendment is
violated when a defendant has to stand trial on an
indictment which the government knows is based
partially on perjured testimony, when the perjured
testimony is material, and when jeopardy has not
Once the disclosure of perjury was discovered during Appellants’
trial, the prosecutor took the witness James Porter back before the
Grand Jury to explain his perjured testimony in an indictment against
Jerry Word, a co-defendant not tried with appellants.
12
attached. Whenever the prosecutor learns of any
perjury committed before the grand jury, he is under a
duty to immediately inform the Court and opposing
counsel, and, if the perjury may be material, also the
grand jury— in order that appropriate action may be
taken. (Emphasis Added)
Both the trial judge and the Ninth Circuit Court of
Appeals refused to follow Basurto, supra in this case. As a
matter of fact, the trial judge expressed his disposition to
search in other districts and circuits to see if they had ever
dealt with the particular problem rather than to be bound
by the Basurto decision. At the beginning of oral arguments,
on appeal, the authoring jurist readily expressed that he did
not necessarily agree with the Basurto decision.
We urge this Court to grant certiorari on this issue and
clear up the muddy waters of disagreement on the affect of
preindictment perjury on subsequent proceedings in the
same case. Also, this issue grants this Court an opportunity
to review another aspect of Geders v. United States, 425
U.S. 80, 98 S. Ct. 1330, where this Court had an
opportunity to consider far less reprehensible conduct of a
trial judge, than that that permeated the entire course of
proceedings from indictment to sentencing.’
For the sake of brevity, we have pointed out the
*Appellant Bracy was sentenced to 15 years on four (4) counts
concurrently, twenty (20) years special parole and a $25,000.00
committed fine. He had no prior felony record. In United States v.
William Preston Guild, Cr. No. 16155, the same judge sentenced a
defendant with an extensive criminal record dating back to 1960 to five
(5) years probation, for the same offense as appellant was convicted of.
While one cannot legally complain of a sentence imposed within
Statutory limits, we simply point out those differences in sentences, by
the same judge, for the same offense, as his disposition to be more fair to
one defendant than another.
13
aforementioned expressions of the Court, which clearly
manifest his partiality in favor of the prosecution and
against the defense. However, the total record of the district
court is replete with such patent manifestations, so much so
that, Appellants’ trial was a farce and mockery of justice.
Appellants had no chance of victory short of a favorable
jury verdict, which likewise, was impaired by erroneous
rulings and instructions on the applicable law, as will
hereafter be discussed.
IL.
A. AN ACCUSED’S CONVICTION SHOULD
NOT BE UPHELD WHERE THE TRIAL
JUDGE REFUSES TO HONOR DECI-
SIONS OF THE SUPREME COURT;
WHEREIN, THOSE DECISIONS AFFECT
THE JURY DELIBERATIONS AND THE
ADMISSIBILITY OF EVIDENCE, PRO-
BATIVE ON THE QUESTION OF AN
ACCUSED’S GUILT.
Until the issue of preindictment perjury surfaced, the
most probative defense for appellants was the improper
joinder of various offenses in the indictment, lumped
together as one continuous on going conspiracy. Realizing
the weakness of his case against appellants, the prosecutor
sought to enhance his chances of victory by bringing in as
evidence, two seizures of drugs, from two separate cases.
The idea being, to excite the jury and eradicate their
objective appraisal of the evidence relevant to guilt or
innocence. Confused, indeed, the jury was, because, after a
substantial period of deliberation, they inquired: “does the
14
absence of physical handling of the contraband still
constitute guilt under Counts 2 and 4?” Over defense
objection, the trial judge instructed the jury on “aiding and
abetting” but refused to instruct, in conjunction therewith,
on mere possession, mere presence and conspiracy.
No drug seizures were ever made from either of the
appellants, or from anyone in their presence. So, faced with
the task of pursuing a case against several persons, some
with absolutely clean criminal records and some with no
more than one misdemeanor conviction; and on the other
hand, the prosecution’s star witness, an admitted homosex-
ual with a past record of several felony convictions and a
person the prosecutor, himself, believed to be unreliable,
did not present a triable case for the government.
Accordingly, the prosecutor deemed it expedient to take
seizure of drugs from two other cases, involving people with
Detroit, Michigan backgrounds and claim them to be co-
conspirators, with not a scintilla of evidence to support such
a theory.
In United States vy. Margaret Canada, 527 F.2d 1374,
the prosecution conceded that appellants were not indicted
in that case February. 1975, because admittedly, there was
no evidence of their participation therein. Yet, the trial
court allowed the drugs seized from that case in as evidence
in the appellants’ case, more than thirteen months hence.
This decision was affirmed by the Ninth Circuit Court of
Appeals. These decisions are clearly in conflict with this
Court’s decision in United States v. Chadwick, 433 U.S. 1,
53 L.Ed. 538, 97 S. Ct. 2476.
In Chadwick railway officials notified DEA agents in
San Diego that two (2) of the respondents had loaded a
suspicious appearing footlocker onto a train bound for
detect marijuana. As the
presence of contraband. The agents waited until the locker
In United States v. Margaret Canada, 527 F.2d 1374,
Canada was observed, at the Detroit Metro Airport
February 16, 1975, in possession of a green suitcase
containing a large sum of cash. Appellant Boyer Bracy
accompanied her, and saw her flight off at the boarding
gate. Security personnel informed DEA of the large bundle
of cash, who in turn, alerted the San Diego DEA to be on
the lookout for a certain described female carrying a large
sum of cash, in a green suitcase.
San Diego agents watched Canada, as she disembarked
from her flight, carrying her green suitcase and met with two
other persons. The agents watched the activities of the three
that night and the following morning. Canada went
shopping in downtown San Diego and the other two people
were last seen entering Mexico about 10:30 a.m. All three
persons were next seen at the motel at approximately 4:00
p.m. preparing to check out. One observing agent testified
that the bag in possession of the two people last seen
heading for Mexico that morning, appeared to have been
empty when they left, but contained something upon their
16
return. The agents had contacted the prosecutor, who
suggested that they continue observing and question, if
possible, but not to arrest.
The agents saw Canada and the two others loadup their
bags in the motel parking lot, pull past the agents and enter
an interstate highway toward Los Angeles. The agents
overtook the vehicle, carrying the three people, and ordered
them out of the car. At least one officer had his gun drawn.
The lessee of the car was told that the agent suspected she
was carrying narcotics. She denied that assertion. The
agent then said, if that be so, do you mind if I examine the
car and contents. She said, “I don’t care.” Canada was
Standing right there and the agents acknowledged that they
knew the green suitcase belonged to Canada. No one was
advised of constitutional rights.
Upon search of the lessee’s suitcase, no contraband was
found. Then, the agents went on and searched Canada’s
suitcase, without her permission and discovered the
contraband used as evidence in that case. The appellant
Boyer Bracy was in Detroit at the time and the whereabouts
of the other appellants cannot even be determined from the
records. However, this seizure of evidence was presented in
their case.* Clearly, Chadwick, supra, controls the Canada
facts.
The second case, United States v. Stephanie Gurley,
549 F.2d 809, agents searched a car operated by Stephanie
Gurley, March 21, 1976 at the Mexican border. Five
pounds of heroin was found concealed in the car. The car in
question, was loaned to Jerry Word the day before in Los
‘The trial judge and prosecutor agreed that appellant Bracy had
Standing to raise this issue. An evidentiary hearing was conducted
thereon and denied.
17
Angeles, at the time the appellant Boyer Bracy was
present, but said nothing to any one. Stephanie Gurley was
tried separately and testified that she borrowed the car from
a person other than Jerry Word. She also testified that, she
did not know the appellant Boyer Bracy or Jerry Word and
had never had any dealings with either. Over objections, the
trial court allowed this large seizure of drugs to be used as
evidence against the appellants in their trial, when clearly
there was no evidence connecting the possessor with the
appellants.
Even more offending is the trial Court’s refusal to follow
this Court’s decision in Kotteakos v. United States, 328
U.S. 750 (1946). In Kotteakos, this court ruled that,
whether a scheme is one conspiracy or several is primarily
a jury question, since it is a question of fact as to the nature
of the agreement. See also, United States v. Rocha, 288
F.2d 545 (CA. 9, 1961); United States v. Varelli, 407
F.2d 735 (CA. 7, 1969); United States v. Russano, 257
F.2d 712; United States v. Butler, 494 F.2d 1246(CA. 10,
1974); United States v. Baxter, 492 F.2d 150 (CA. 9,
1973); United States v. Daily, 282 F.2d 818 (CA. 9,
1960). Here, the trial judge took that right away from the
jury and ruled, as a matter of law, that this case involved
but one continuous ongoing conspiracy, and refused to give
defense requested instructions on “multiple conspiracies.”
This was clear error, affirmed by the Ninth Circuit Court of
Appeals.
This case presented as clear a picture of multiple
conspiracies lumped into one case, as one would ever seek
to find. Here, we had the terminated conspiracy in the
Canada case, of more than thirteen months past, allegedly
furthered by an alleged meeting between the appellants
Bracy, Martin and James Porter; wherein, government
witness Porter testified that, he had no involvement in the
Canada conspiracy, did not know the participants therein,
nor Stephanie Gurley. This court ruled in Krulewitch v.
United States, 336 U.S. 440, 442 (1949) that, a terminated
conspiracy cannot be furthered. See also, Delli Paoli v.
United States, 352 U.S. 232, 237 (1957); United States v.
Hindmarsh, 389 F.2d 137, 148 (CA. 6, 1968).
Clearly, the Canada conspiracy terminated with the
arrests of the participants therein February 17, 1975. It
could not be furthered beyond that point.
Stephanie Gurley was arrested March 21, 1976 and
indicted March 24, 1976, as a smuggler and possessor of
five (5) pounds of heroin. Appellants were not charged in
that indictment as conspirators or possessors of her seizure.
At the time, the government made no claim that any of the
appellants were involved in her seizure.
First of all, the improper joinder of the several unrelated
offenses, by the prosecutor, was a clear infringement on
“Due Process.”” Moreover, the trial Court’s restraint on the
jury’s right to determine whether appellants’ involvement in
the indictment, as charged was a multiple or single ongoing
conspiracy was a clear denial of a fair trial by jury,
tantamount to directing a verdict of guilty for the
prosecution. In total defiance of this Court’s decision in
Kotteakos, supra, the trial judge withheld from the jury’s
consideration the fact question of the nature of the alleged
conspiracy. The Ninth Circuit affirmed, without consider-
ing the merits of the issue. Review of these decisions is
warranted, wherein, the inferior Courts refuse to honor
decisions of this Court, where there is no dispute as to the
applicability of this Court’s decision to the issue at hand
19
and the inferior Court arbitrarily refuses to follow the law of
the Supreme Court. Here, there was no claim by the trial
Court that, the Supreme Court’s decision in Kotteakos was
unclear to him, or that, he did not believe the facts of the
instant case falls within the Kotteakos decision. His Honor
took the arbitrary position that, irrespective of Kotteakos
and the other cases cited, I am ruling, as a matter of law, the
facts of this case represent but one continuing ongoing
conspiracy and I will not allow the jury to decide if the
several different incidents, involving different people,
unknown to each other, involved several or a single
conspiracy. To allow inferior Courts to act in this manner
would be giving a key to the flood gates of rampant behavior
to every inferior Court, who decides he is not going to abide
by Supreme Court decisions, that he or she does not like.
B.THE ARREST OF APPELLANT BOYER
BRACY, IN THE EASTERN DISTRICT OF
MICHIGAN WAS ILLEGAL AND ANY
EVIDENCE DERIVED, AS A RESULT
THEREOF WAS INADMISSIBLE.
Appellant Boyer Bracy was arrested April 21, 1976, in
the Eastern District of Michigan on a warrant issued in the
Southern District of California April 15, 1976. The
Complaint supporting the warrant was issued the following
day, April 16, 1976. No Complaint or Affidavit was
attached to the warrant, when received in Michigan for
service. (ET. 82)°
*““ET” preceding a number connotes Evidentiary Hearing transcript
page reference.
20
At the time of appellant’s arrest, he had a slip of paper in
his pocket with some numbers and abbreviations, similar to
codes, contained thereon. Over defense objections, the trial
Court allowed the arresting agent to testify, that, he (the
agent) believed the figures on the slip of paper were
references to drug transactions. The prosecutor strongly
argued this point in summation.
Aside from the fact that, there was no probable cause in
what James Porter told the Grand Jury April 14, 1976 to
support issuance of an arrest warrant, the warrant was
invalid, because, it was not based upon a Complaint, or
from an affidavit or affidavits filed with the Complaint. (See
Rule 4, Federal Rules of Criminal Procedure)
All that James Porter had said about his involvement
with appellants by April 15, 1976 was that, Boyer Bracy
asked him to smuggle some drugs from Mexico in January
or February, 1976 and he (Porter) refused to do so.
Certainly, this was not sufficient probable cause to support
the issuance of an arrest warrant, or indictment against
anyone, as having committed a crime. Accordingly, the
warrant was defective for that reason alone.
However, this warrant was further defective for failure to
be in compliance with the mandates of Rule 4, Federal
Rules of Criminal Procedure, to wit:
“If it appears from the Complaint or from an affidavit
or affidavits filed with the complaint, that there is
probable cause to believe that an offense has been
committed and that the defendant has committed it, a
warrant for the arrest of the defendant shall issue to
any officer authorized by law to execu.e it.” (Empha-
sis Added)
This Honorable Court addressed itself to this question in
Giordinello vy. United States, 357 U.S. 480, 485:
21
“Criminal Rules 3 and 4 provide that an arrest warrant
shall issue only upon a written and sworn complaint (1)
setting forth ‘the essential facts constituting the offense
charged’ and (2) ‘showing that there is probable cause
to believe that (such) an offense has been committed
and that the defendant committed it ....’ The provisions
of these rules must be read in light of the constitutional
requirements they implement. The language of the
Fourth Amendment, that *... no warrants shall issue,
but upon probable cause, supported by oath or
affirmation, and particularly describing... the person or
things to be seized,’ of course applies to arrest warrants
as well as search warrants.”
In the instant case, the Complaint, supporting the
warrant, was prepared and sworn to the day after the
warrant was issued. Clearly, the warrant was invalid, as not
having been based upon a valid complaint, at the time of
issuance. There is no claim that appellants were arrested on
any basis other than the warrant. Accordingly, any
evidence gleaned as a result of arrests made on the instant
warrant should be suppressed. Wong Sun v. United States,
371 U.S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441; United States
v. Guana-Sanchez, 484 F.2d 590 (CA. 7, 1973).
Although the facts as herein expressed were undisputed,
the trial Court refused to even seriously consider this
Hcnorable Court’s decision in Giordinello, supra, as
binding authority on this issue, and without opinion, denied
appellant’s motion to suppress. The trial Court was
affirmed by the Ninth Circuit Court of Appeals.
We are asking this Honorable Court to exercise its
supervisory power and command the inferior Courts,
involved in this case, to obey the decisions of this Court, in
instances where the facts and law warrants such obedience.
22
Il.
THIS COURTS DECISION IN UNITED
STATES V. AGURS, 427 U.S. 97 (1976) DID
NOT APPROVE PERJURED TESTIMONY
IN THE PROCUREMENT OF AN INDICT-
MENT, AND POST INDICTMENT MIS-
CONDUCT OF FEDERAL AGENTS AND
THE PROSECUTOR IN THE CONCEAL-
MENT OF THE PREINDICTMENT PER-
JURY FROM THE COURT, OPPOSING
COUNSEL AND THE GRAND JURY,
WHERE THE APPELLATE COURT HAS
PROSCRIBED SUCH PERJURY AS
TAINTING THE INDICTMENT AND
MAKING THE SAME VOID.
We submit that, the Ninth Circuit Court of Appeals has
misconstrued and misapplied three (3) important decisions
of this Honorable Court, in connection with this case.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United
States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39
L.Ed.2d 242 (1974); and United States v. Agurs, 427 U.S.
97, 96 S. Ct. 2392, 49 L.Ed.2d 342 (1976).
In United States v. Canada, supra, the Court relied upon
this Court’s decision in Schneckloth v. Bustamonte, supra,
aS supportive authority, in resolving the issue raised,
attacking the airport search in Canada. However, the Court
ultimately concluded that the facts in Canada fell
somewhere between Schneckloth v. Bustamonte, supra and
United States v. Davis, 482 F.2d 893 (CA. 9, 1973).
Exactly how, or where, the Court never elucidated.
We submit that the facts of Canada and Davis are
indistinguishable as to the airport search. Yet, the two (2)
different panels of Circuit Judges reached different
23
decisions on the same issue.
In Davis, the Appellant attempted to board a plane from
San Francisco to Los Angeles. As he approached the
boarding gate, a TWA employee told him a routine security
check was necessary, reached for his briefcase, opened it
and found a gun. The Ninth Circuit held that search to be
illegal and ordered suppression of the evidence.
In Canada, the security officer saw a green suitcase come
through the x-ray machine and on down the conveyor belt
where she was. She did not see who placed the suitcase on
the conveyor. (2 ET. 14, 44, 63) She observed a non-
readable mass in a section of the suitcase.
By the time the suitcase reached the end of the security
line, Appellant Boyer Bracy and Margaret Canada were
both standing there waiting. The security officer told Bracy
the suitcase had to be opened. He asked, why? She
proceeded immediately to open the suitcase, assuming she
had the right to do so. (2 ET. 53 & 54) Upon opening the
suitcase, she observed a grocery bag containing some thing
and bound with a rubber band. She first felt the bag and was
satisfied that it did not contain a bomb or weapon. She
went into the bag and saw a large sum of money, which she
reported to the DEA, to get a monetary reward promised by
a particular DEA agent, as she had done several times
before. (2 ET. 52, 56) She did not advise the persons there
that, they could refuse the search and leave the boarding
area.
Appellant Boyer Bracy testified that he did not put the
Suitcase on the conveyor belt, that it was not his and he had
no knowledge of its contents. (2 ET. 259) That when the
security officer said the bag had to be opened, he inquired,
why? At that time Canada was enroute to the ticket counter,
24
because she only had several minutes to make her flight. (2
ET. 262, 263, 264, 265) That he informed the security
officer that he could not grant her permission to open the
suitcase, because, it was not his. However, the officer went
on to open the suitcase anyway.°®
Clearly, the Davis decision controls the Canada case,
because the probative facts are indistinguishable. However,
the decision in the two (2) cases are diametrically opposed,
in the same judicial circuit.
The Ninth Circuit’s reliance on Schneckloth v. Busta-
monte, supra, aS supportive authority in Canada is clearly
misplaced. In Bustamonte, supra, there was no question but
that the respondent had given his consent to search. This
Court heid that “while knowledge of a right to refuse
consent is a factor to be taken into account, the State need
not prove that the one giving permission to search knew that
he had a right to withhold his consent.”
In Canada, the issue was, whether there was consent,
and if so, what kind. The Ninth Circuit clearly answered the
question in United States v. Davis, supra. This Court’s
decision in Bustamonte, in no way broaches this question.
Accordingly, this Court should review the Ninth Circuit’s
application of Bustamonte in Canada.
Further, in the Canada case, the Ninth Circuit
misconstrued and misapplied this Court’s decision in
United States v. Matlock, supra. (527 F.2d 1379) In
Matlock, the third party consenting to the search possessed
common authority over the premises searched. As this
Court pointed out in Matlock at 171, each co-inhabitant
*The Canada case was resubmitted to the Ninth Circuit, in view of
the security officer's changed testimony and Appellant Bracy’s
testimony; however, the Court declined to review its previous decisic..
25
assumes the risk that one of his number might permit a
common area to be searched.
However, such was not the case in Canada, as the Court
observed at 1378, where the Court says: “In her original
motion to suppress, appellant claimed the suitcase as hers.
The government has not disputed this claim of ownership.
In fact, the government's evidence that she transported it to
San Diego and was seen with it there on several occasions
lends support to her claim.” Clearly, there is no dispute, or
claim that anyone, other than Margaret Canada had
authority and control over her suitcase, at the time it was
searched. As a matter of fact, the trial judge almost granted
the motion to suppress, because he queried the prosecutor
as to how the consent of the co-defendant Welch could
extend to Canada’s suitcase.
In this respect, the consent in Matlock differed from the
consent in Canada, because Canada was standing right
there maintaining sole control over her suitcase; whereas, in
Matlock, the third party had as much right to consent as did
the defendant. We submit that, the consent given by co-
defendant Welch to search her leased car, could not extend
to Canada’s suitcase, while she was present for the search
and the officers knew the suitcase belonged to her and not
the third party, who gave the consent. Accordingly,
allowing the evidence seized in the Canada case, as part of
the evidence, in the instant case, was clear error, materially
detracting from the fairness of the trial and greatly enhance
the probability of conviction.
The Ninth Circuit Court of Appeals has refused to honor
this Court’s decision in United States v. Chadwick, 433
U.S. 1, 97 S. Ct. 2476, 53 L.Ed.2d 538. We submit that,
this Court’s decision in Chadwick, supra, controls the
seizure in Canada, supra, as heretofore discussed.
26
Moreover, there were no proven connections between
the defendants in the instant case and those in the Canada
case. Accordingly, the evidence from the Canada case was
inadmissible in the instant case for that reason alone.
Finally, in reaching its decision in the instant case, the
Ninth Circuit heavily relied upon this Court’s decision in
United States v. Agurs, supra. (See slip op. 10) In
discounting the potency of its own decision in United States
v. Basurto, supra, the Court said: “We suggest that what
the Court there said on the duty of a prosecutor to
immediately inform the Court and Counsel of the perjury,
irrespective of materiality, is dictum.”’ (Emphasis Added)
In other words, this panel declared the decisive phrase of
the Basurto decision to be mere dictum. (See Basurto at
785-786)
The Court ventured on to say: (slip. Op. 10)
“Aside from the fact that Basurto is distinguishable,
we believe that its requirement that the prosecutor has
an obligation to immediately inform the Court and
opposing counsel is weakened if not destroyed by the
Supreme Court decision in United States v. Agurs,
427 U.S. 97 (1976).”
This interpretation of Agurs, by the Court is clearly
misplaced. Agurs merely considered the failure of a
prosecutor to disclose the victim’s prior criminal record,
which was not asked for by defense counsel. The Agurs
court had before it the question of whether this mere non-
disclosure most likely would have affected the outcome of
the trial. The Court concluded that, whether the deceased
had a criminal record or not, would have had no bearing on
the defense of “‘self defense.” In other words, either the
evidence showed “self defense” or it did not and, the
character of the deceased could neither add to, nor detract
27
from the evidence. The Court noticed in Agurs that, the
deceased was stabbed numerous times, while the re-
spondent was unscattered. Moreover, the respondent
presented no evidence at all to support a claim of self
defense.
Two (2) features of Agurs, as it relates to the instant case,
was that (1) No perjury was involved (See Agurs at 103-
104) and (2) Agurs considered evidence at trial that may
have resulted in an acquittal or could have created some
reasonable doubt, in a reasonable mind. (Agurs at 112-113)
The instant case has none of the features of Agurs. This
case involved undisputed prosecutorial misconduct before
trial. The question being, whether the prosecutor’s
misconduct may have impaired “‘procedural due process”
as guaranteed by the Constitution of the United States, as
decided by the Ninth Circuit in United States v. Basurto.
Agurs does not broach these questions and does not decide
them.
The real question here, on the Basurto issue was, what
effect might knowledge of Porter’s perjury have had on the
indicting grand jury? Due to the secrecy of grand jury
proceedings, there is no way of possibly answering that
question, with certainty. This Court sai. in Agurs at 103:
“if there is any likelihood that the false testimony could
have affected the judgment of the jury,”’ the actions of the
jury should be set aside. Certainly, Porter’s credibility
before the grand jury was important to their indicting
deliberations. No doubt, they would have more cautiously
acted on the testimony of an admitted perjurer, had that fact
been known to them.
28
IV.
CONSANGUINIAL AND INTIMATE RE-
LATIONSHIPS BETWEEN PARTIES TO
AN ALLEGED CONSPIRACY IS NOT A
SUFFICIENT NEXUS OF THEIR PARTIC-
IPATION THEREIN.
The Ninth Circuit Court of Appeals ruled, in this cause,
that, the blood relationship of Boyer Bracy to Brenda Bracy
Glenn and his intimate relationships with Margaret Canada
and Sandra Denise Martin were sufficient connections
between the parties to link them as co-conspirators (See
Slip Op. 14-17), in one continuous ongoing conspiracy.
This ruling sets a very dangerous precedence in criminal
jurisprudence, and if allowed to stand, will work irreparable
harm to the progressive administration of criminal justice.
Our exhaustive research into the history of our criminal
justice system has failed to turn up a single case to support
this viewpoint. ,
We find that, courts have been cautious, in conspiracy
cases to minimize the “dragnet” effect that conspiracy
cases have, by their very nature, in sweeping innocent
bystanders into convictions of charges that they did not
actually participate in, but, because of peripheral involve-
ment or blood relationship to others, who are law violators,
they are swept right into the conspiracy net. We have no
choice of who our blood relatives are, nor can we help but to
mingle in the society where criminals are. To say that these
unfortunate circumstances, alone, are a sufficient nexus to a
conspiracy to violate a law, stretches the law of conspiracy
beyond elasticity.
The viewpoint of the deciding panel, in this cause, is
certainly not in accord with the law of the Ninth Circuit, in
29
the past. The Ninth Circuit has routinely held in the past
that, mere associations or personal relationships are not a
sufficient basis to establish the proper nexus to a
conspiracy. Ong Way Jong v. United States, 245 F.2d
392; United States v. Evans, 257 F.2d 121 (CA. 9, 1958);
United States v. Gardner, 475 F.2d 1173 (CA. 9, 1973);
Marino v. United States, 91 F:2d 694; Gullo v. United
States, 302 U.S. 764, 82 L.Ed.2d 593.
In the instant case, the Ninth Circuit Court of Appeals
singled Boyer Bracy out as the “central figure” in the
several incidents. Nowhere does the trial record support
such a conclusion. Case Agent Richard Perkins testified
that Boyer Bracy was not indicted as a participant in the
Canada case conspiracy, because, there was no evidence of
his involvement therein. Moreover, the prosecutor argued
in summation that, there was not enough evidence to
connect Boyer Bracy with the Canada case in February,
1975. If that be so, he could never be connected therewith,
because, that conspiracy terminated February 17, 1975,
with the arrests of the participants.
We appeal to this Honorable Court’s sense of fairness
and concern for the progressive administration of criminal
justice to review this ruling of the Ninth Circuit Court of
Appeals.
30
CONCLUSION
We respectfully pray that this Honorable Court will grant
Respectfully submitted,
/s/ WILFRED C. RICE
WILFRED C. RICE ( P 19411)
2436 Guardian Building
Detroit, Michigan 48226
965-7962
Attorney for Appellants
APPENDIX
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
November 1975 Grand Jury
UNITED STATES OF AMERICA, ) Criminal Case No.
Plaintiff,
v.
STEPHANIE MARIA GURLEY,
BOYER ALFREDO BRACY, aka
B. Carter,
JUANITA LOUISE KENDRICKS,
aka Louise J. Bracy, aka
Juanita Boyer,
JERRY WORD,
DENISE MARTIN, aka Sandra
Martin, aka Nisey,
BRENDA BRACY, aka Brenda
Glenn,
Defendants.
76-0284
(Superseding)
INDICTMENT
Title 21, U.S.C., Sec. 963 -
Conspiracy to Illegally Im-
port a Controlled Sub
stance; Title 21, U.S.C.,
Sec. 952, 960 and 963 - Il-
legal Importation of a Con-
trolled Substance; Title 21,
U.S.C., Sec. 846 - Con
spiracy to Possess a Con-
trolled Substance with In-
tent to Distribute; Title 21,
U.S.C., Sec. 841(aX1) -
Possession of a Controlled
Substance with Intent to
Distribute
ee eee ee
SOUTHERN CISTRICT CF CALIFORNIA
PR 2 8 1976
CLERK, U.S. DISTRICT COURT
bY. U-y-o Co DEPUTY
The grand jury charges:
COUNT ONE
Beginning at a date unknown to the grand j and
continuing up to and including April 21, 1976, in the
Southern District of California, and elsewhere, defendants
STEPHANIE MARIA GURLEY, BOYER ALFREDO
BRACY, aka B. Carter, JUANITA LOUISE KEN-
DRICKS, aka Louise J. Bracy, aka Juanita Boyer, JERRY
WORD, DENISE MARTIN, aka Sandra Martin, aka
Nisey, and BRENDA BRACY, aka Brenda Glenn, did
knowingly and intentionally combine, conspire, and agree
together and with each other and with divers other persons
unknown to the grand jury to knowingly commit offenses
against the United States, namely, to knowingly and in-
tentionally import and attempt to import approximately 5.5
pounds of heroin, a Schedule I Controlled Substance into
the United States from a place outside thereof; in violation of
Title 21, United States Code, Sections 952, 960 and 963
OVERT ACTS
In pursuance of said conspiracy and to further the objects
thereof, the following overt acts, among others, were com-
mitted in the Southern District of California and elsewhere:
1. On or about February 16, 1975, within the Eastern
mere of Michigan, defendant BOYER ALF REDO
ame accompanied by previously charged de-
e nt Margaret Canada, carried a suitcase in the
Detroit Metropolitan Airport within which was con-
tained a large sum of money.
3a
. On or about February 16, 1975, within the Southern
District of California, previously indicted cocon-
spirators Margaret Canada, Anne Belle Welsh and
Clarence Scott Turner met at the San Diego Inter-
national Airport, San Diego, California.
. On or about February 17, 1975, within the Southern
District of California, previously indicted co
conspirators Margaret Canada, Anne Belle Weish,
and Clarence Scott Turner drove in a vehicle within
which was contained 4.4 pounds of heroin and 20
ounces of cocaine.
_ In February 1976, unindicted coconspirator James
Howard Porter and defendant BRENDA BRACY,
aka Brenda Glenn, smuggled a quantity of heroin and
cocaine into the United States from the Republic of
Mexico at the Port of Entry San Ysidro, California,
within the Southern District of California.
_ On or about March 16, 1976, unindicted cocon-
spirator James Howard Porter pursuant to the di-
rections of defendant BOYER ALFREDO BRACY
travelled to the Republic of Mexico.
_ On or about March 20, 1976, defendant JERRY
WORD borrowed a 1969 Chevrolet Nova, California
License Plate ZXE 497, from Debra Gillenwater at
2023 Corning Avenue, Los Angeles, California, with-
in the Central District of California.
_ On or about March 21, 1976, defendants BOYER
ALFREDO BRACY and DENISE MARTIN talked
on the telephone at the Ramada Inn, Tijuana, B.C.,
Mexico, to telephone number 213-466-1869 in Los
Angeles, California, within the Central District of
California.
4a
8. On or about March 21, 1976, defendant STEPH-
ANIE MARIA GURLEY drove a vehicle containing
5.5 pounds of heroin into the United States from the
Republic of Mexico at the Port of Entry San Ysidro,
California, within the Southern District of California.
9. On or about March 22, 1976, within the Central
District of California, defendant DENISE MARTIN
placed a phone call to 213-466-1869 in Los Angeles,
California.
10.On or about April 13, 1976, within the Eastern
District of Michigan and the Central District of
California, defendant JUANITA LOUISE KEN.
DRICKS talked on the telephone to 213-466-1869 in
Los Angeles, California.
COUNT TWO
On or about March 21, 1976, in the Southern District of
California, defendants STEPHANIE MARIA GURLEY,
BOYER ALFREDO BRACY, aka B. Carter, JUANITA
LOUISE KENDRICKS, aka Louise J. Bracy, aka Juanita
Boyer, JERRY WORD, DENISE MARTIN, aka Sandra
Martin, aka Nisey, and BRENDA BRACY, aka Brenda
Glenn, did knowingly and intentionally import and attempt
to import approximately 5.5 pounds of heroin, a Schedule I
Controlled Substance, into the United States from a place
outside thereof; in violation of Title 21 , United States Code,
Sections 952, 960 and 963.
a
Sa
COUNT THREE
Beginning at a date unknown to the grand jury and
continuing up to and including April 21, 1976, in the
Southern District of California, and elsewhere, defendants
STEPHANIE MARIA GURLEY, BOYER ALFREDO
BRACY, aka B. Carter, JUANITA LOUISE KEN-
DRICKS, aka Louise J. Bracy, aka Juanita Boyer, JERRY
WORD, DENISE MARTIN, aka Sandra Martin, aka
Nisey, and BRENDA BRACY, aka Brenda Glenn, did
knowingly and intentionally combine, conspire, and agree
together and with each other and with divers other persons
unknown to the grand jury to commit offenses against the
United States, namely, to knowingly and intentionally
possess, with intent to distribute, approximately 5.5 pounds
of heroin, a Schedule I Controlled Substance; in violation of
Title 21, United States Code, Sections 841(a)(1) and 846.
OVERT ACTS
In pursuance of said conspiracy and to further the objects
thereof, the following overt acts, among others, were com-
mitted in the Southern District of California and elsewhere:
1. On or about February 16, 1975, within the Eastern
District of Michigan, defendant BOYER ALFREDO
BRACY, accompanied by previously charged de-
fendant Margaret Canada, carried a suitcase in the
Detroit Metropolitan Airport within which was con-
a large sum of money.
2. =o poe February 16, 1975, within the Southern
District of California, previously indicted cocon-
spirators Margaret Canada, Anne Belle Welsh and
6a
Clarence Scott Turner met at the San Diego Inter-
national Airport, San Diego, California.
_ On or about February 17, 1975, within the Southern
District of California, previously indicted cocon-
spirators Margaret Canada, Anne Belle Welsh, and
Clarence Scott Turner drove in a vehicle within which
was contained 4.4 pounds of heroin and 20 ounces of
cocaine.
_ In February 1976, unindicted coconspirator James
Howard Porter and defendant BRENDA BRACY,
aka Brenda Glenn, smuggled a quantity of heroin and
cocaine into the United States from the Republic of
Mexico at the Port of Entry San Ysidro, California,
within the Southern District of California.
_ On or about March 16, 1976, unindicted cocon-
spirator James Howard Porter pursuant to the di-
rections of defendant BOYER ALFREDO BRACY
travelled to the Republic of Mexico.
_ On or about March 20, 1976, defendant JERRY
WORD borrowed a 1969 Chevrolet Nova, California
License Plate ZXE 497, from Debra Gillenwater at
2023 Corning Avenue, Los Angeles, California, with-
in the Central District of California.
_ On or about March 21, 1976, defendants BOYER
ALFREDO BRACY and DENISE MARTIN talked
on the telephone at the Ramada Inn, Tijuana, B.C..,
Mexico, to telephone number 213-466-1869 in Los
Angeles, California, within the Central District of
California.
_ On or about March 21, 1976, defendant STEPHA-
NIE MARIA GURLEY drove a vehicle containing
5.5 pounds of heroin into the United States from the
Republic of Mexico at the Port of Entry San Ysidro,
<men
———
ee ee, pera aaa a
7a
California, within the Southern District of California.
9. On or about March 22, 1976, within the Central
District of California, defendant DENISE MARTIN
placed a phone call to 213-466-1869 in Los Angeles,
California.
10.On or about April 13, 1976, within the Eastern
District of Michigan and the Central District of
California, defendant JUANITA LOUISE KEN-
DRICKS talked on the telephone to 213-466-1869 in
Los Angeles, California.
COUNT FOUR
On or about March 21, 1976, in the Southern District of
California, defendants STEPHANIE MARIA GURLEY,
BOYER ALFREDO BRACY, aka B. Carter, JUANITA
LOUISE KENDRICKS, aka Louise J. Bracy, aka Juanita
Boyer, JERRY WORD, DENISE MARTIN, aka Sandra
Martin, aka Nisey, and BRENDA BRACY, aka Brenda
Glenn, did knowingly and intentionally possess, with intent
to distribute, 5.5 pounds of heroin, a Schedule I Controlled
Substance; in violation of Title 21, United States Code,
Section 841(a)(1).
A TRUE BILL:
/s/ Richard A. Anclair
Foreman
TERRY J. KNOEPP
United States Attorney
by /s/ Stephen W. Peterson
STEPHEN W. PETERSON
Assistant U. S. Attorney
8a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
May 1976 Grand Jury
UNITED STATES OF AMERICA, ) Criminal Case No.
76-0284
Plaintiff,
(Superseding)
Vv.
INDICTMENT
STEPHANIE MARIA GURLEY,
BOYER ALFREDO BRACY, aka Title 21, U.S.C., Sec. 963 -
B. Carter, Conspiracy to Illegally Im-
JUANITA LOUISE KENDRICKS, port a Controlled Sub-
aka Louise J. Bracy, aka stance; Title 21, U.S.C.,
Juanita Boyer, Sec. 952, 960 and 963 - Il-
JERRY WORD, legal Importation of a Con-
DENISE MARTIN, aka Sandra
Martin, aka Nisey,
BRENDA BRACY, aka Brenda
Glenn,
Defendants.
trolled Substance; Title 21,
U.S.C., Sec. 846 - Con
spiracy to Possess a Con-
trolled Substance with In-
tent to Distribute; Title 21,
U.S.C., Sec. 841(aX1) -
Possession of a Controlled
Substance with Intent to
Distribute
ee ee ttt ies
RK, LjstRich COYRT
Sct OF CAYIFORNIA
MA) db HA ry
a eons Te ee
9a
The grand jury charges:
COUNT ONE
Beginning at a date unknown to the grand jury and
continuing up to and including April 21, 1976, in the
Southern District of California, and elsewhere, defendants
STEPHANIE MARIA GURLEY, BOYER ALFREDO
BRACY, aka B. Carter, JUANITA LOUISE KEN-
DRICKS, aka Louise J. Bracy, aka Juanita Boyer, JERRY
WORD, DENISE MARTIN, aka Sandra Martin, aka
Nisey, and BRENDA BRACY, aka Brenda Glenn, and
previously indicted coconspirators Margaret Canada, Anne
Belle Welsh, and Clarence Scott Turner, and unindicted
coconspirator James Howard Porter, did knowingly and
intentionally combine, conspire, and agree together and with
each other and with divers other persons known and
unknown to the grand jury to knowingly commit offenses
against the United States, namely, to knowingly and in-
tentionally import, and attempt to import, various quantities
of heroin and cocaine, Schedule I and Schedule IT Controlled
Substances, into the United States from a place outside
thereof: in violation of Title 21, United States Code,
Sections 952, 960 and 963.
OVERT ACTS
In pursuance of said conspiracy and to further the objects
thereof, the following overt acts, among others, were com-
mitted in the Southern District of California and elsewhere:
1. On or about February 16, 1975, within the Southern
District of Michigan, defendant BOYER AL-
10a
FREDO BRACY, accompanied by previously
charged defendant Margaret Canada, carried a suit-
case in the Detroit Metropolitan Airport within which
was contained a large sum of money.
_ On or about February 16, 1975, within the Southern
District of California, previously indicted cocon-
spirators Margaret Canada, Anne Belle Welsh, and
Clarence Scott Turner met at the San Diego Inter-
national Airport, San Diego, California.
_ On or about February 17, 1975, within the Southern
District of California, previously indicted cocon-
spirators Margaret Canada, Anne Belle Welsh, and
Clarence Scott Turner drove in a vehicle within which
was contained approximately 4.4 pounds of heroin and
20 ounces of cocaine.
_ In January 1976, unindicted coconspirator James
Howard Porter and defendant BRENDA BRACY,
aka Brenda Glenn, smuggled a quantity of heroin and
cocaine into the United States from the Republic of
Mexico at the Port of Entry, San Ysidro, California,
within the Southern District of California.
_ On or about March 16, 1976, unindicted cocon-
spirator James Howard Porter pursuant to the di-
rections of defendant BOYER ALFREDO BRACY
travelled to the Republic of Mexico.
_ On or about March 20, 1976, defendant JERRY
WORD borrowed a 1969 Chevrolet Nova, California
License Plate ZXE 497, from Debra Gillenwater at
2023 Corning Avenue, Los Angeles, California, with-
in the Central District of California.
_ On or about March 21, 1976, defendants BOYER
ALFREDO BRACY and DENISE MARTIN talked
Oe 6 oe
lla
on the telephone at the Ramada Inn, Tijuana, B.C.,
Mexico, to telephone number 213-466-1869 in Los
Angeles, California, within the Central District of
California.
8 On or about March 21, 1976, defendant STEPHA-
NIE MARIA GURLEY drove a vehicle containing
approximately 5.5 pounds of heroin into the United
States from the Republic of Mexico at the Port of
Entry, San Ysidro, California, within the Southern
District of California.
9. On or about March 22, 1976, within the Central
District of California, defendant DENISE MARTIN
placed a telephone call to 213-466-1869 in Los
Angeles, California.
10.On or about April 13, 1976, within the Eastern
District of Michigan, defendant JUANITA LOUISE
KENDRICKS talked on the telephone to 213-466-
1869 in Los Angeles, California, within the Central
District of California.
COUNT TWO
On or about March 21, 1976, in the Southern District of
California, defendants STEPHANIE MARIA GURLEY,
BOYER ALFREDO BRACY, aka B. Carter, JUANITA
LOUISE KENDRICKS, aka Louise J. Bracy, aka Juanita
Boyer, JERRY WORD, DENISE MARTIN, aka Sandra
Martin, aka Nisey, and BRENDA BRACY, aka Brenda
Glenn, did knowingly and intentionally import and attempt
to import, approximately 5.5 pounds of heroin, a Schedule I
Controlled Substance, into the United States from a place
outside thereof: in violation of Title 21, United States Code,
Sections 952, 960 and 963.
12a
COUNT THREE
Beginning at a date unknown to the grand jury and
continuing up to and including April 21, 1976, in the
Southern District of California, and elsewhere, defendants
STEPHANIE MARIA GURLEY, BOYER ALFREDO
BRACY, aka B. Carter, JUANITA LOUISE KEN-
DRICKS, aka Louise J. Bracy, aka Juanita Boyer, JERRY
WORD, DENISE MARTIN, aka Sandra Martin, aka
Nisey, and BRENDA BRACY, aka Brenda Glenn, and
previously indicted coconspirators Margaret Canada, Anne
Belle Welsh, and Clarence Scott Turner, and unindicted
coconspirator James Howard Porter, did knowingly and
intentionally combine, conspire, and agree together and with
each other and with divers other persons known and
unknown to the grand jury to commit offenses against the
United States, namely, to knowingly and intentionally
possess, with intent todistribute, various quantities of heroin
and cocaine, Schedule I and Schedule II Controlled Sub-
stances; in violation of Title 21, United States Code,
Sections 841(a)(1) and 846.
OVERT ACTS
In pursuance of said conspiracy and to further the objects
thereof, the following overt acts, among others, were com-
mitted in the Southern District of California and elsewhere:
1. On or about February 16, 1975, within the Southern
District of Michigan, defendant BOYER ALFREDO
BRACY, accompanied by previously charged de-
fendant Margaret Canada, carried a suitcase in the
Detroit Metropolitan Airport within which was con-
tained a large sum of money.
13a
. On or about February 16, 1975, within the Southern
District of California, previously indicted cocon-
spirators Margaret Canada, Anne Belle Welsh, and
Clarence Scott Turner met at the San Diego Inter-
national Airport, San Diego, California.
. On or about February 17, 1975, within the Southern
District of California, previously indicted cocon-
spirators Margaret Canada, Anne Bell Welsh, and
Clarence Scott Turner drove in a vehicle within which
was contained 4.4 pounds of heroin and 20 ounces of
cocaine
. In January 1976, unindicted coconspirator James
Howard Porter and defendant BRENDA BRACY,
aka Brenda Glenn, smuggled a quantity of heroin and
cocaine into the United States from the Republic of
Mexico at the Port of Entry, San Ysidro, California,
within the Southern District of California.
._ On or about March 16, 1976, unindicted cocon-
spirator James Howard Porter pursuant to the di-
rections of defendant BOYER ALFREDO BRACY
travelled to the Republic of Mexico.
_ On or about March 20, 1976, defendant JERRY
WORD borrowed a 1969 Chevrolet Nova, California
License Plate ZXE 497, from Debra Gillenwater at
2023 Corning Avenue, Los Angeles, California, with-
in the Central District of California.
_ On or about March 21, 1976, defendants BOYER
ALFREDO BRACY and DENISE MARTIN talked
on the telephone at the Ramada Inn, Tijuana, B.C.,
Mexico, to telephone number 213-466-1869 in Los
Angeles, California, within the Central District of
California.
14a 15a
8. On or about March 21, 1976, defendant STEPHA- A TRUE BILL:
NIE MARIA GURLEY drove a vehicle containing
approximately 5.5 pounds of heroin into the United
States from the Republic of Mexico at the Port of /s/ Illegible
Entry, San Ysidro, California, within the Southern Foreman
District of California.
9. On or about March 22, 1976, within the Central TERRY J. KNOEPP
District of California, defendant DENISE MARTIN United States Attorney
placed a telephone call to 213-466-1869 in Los
Angeles, California. by /s/ STEPHEN W. PETERSON
10.On or about April 13, 1976, within the Eastern Assistant U. S. Attorney
District of Michigan, defendant JUANITA LOUISE
KENDRICKS talked on the telephone to 213-466-
1869 in Los Angeles, California, within the Central
District of California.
COUNT FOUR
On or about March 21, 1976, in the Southern District of
California, defendants STEPHANIE MARIA GURLEY,
BOYER ALFREDO BRACY, aka B. Carter, JUANITA
LOUISE KENDRICKS, aka Louise J. Bracy, aka Juanita |
Boyer, JERRY WORD, DENISE MARTIN, aka Sandra |
Martin, aka Nisey, and BRENDA BRACY, aka Brenda
Glenn, did knowingly and intentionally possess, with intent :
to distribute, approximately 5.5 pounds of heroin, a
Schedule I Controlled Substance; in violation of Title 21,
United States Code, Section 841(a)(1).
En
16a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
November 1974 Grand Jury
UNITED STATES OF AMERICA, ) Criminal Case No.
trolled Substance with In-
tent to Distribute
) 75-0337
Plaintiff, )
)
v. ) INDICTMENT
)
MARGARET CANADA, ) Title 21, U.S.C., Sec. 846 -
ANNE BELLE WELSH, ) Conspiracy to Possess a
CLARENCE SCOTT TURNER, _ ) Controlled Substance with
) Intent to Distribute; Title
Defendants. ) 21, U.S.C., Sec. 841(aX1)
) - Possession of a Con-
)
)
The grand jury charges:
COUNT ONE
Beginning at a date unknown to the grand jury and
continuing up to and including February 17, 1975, in the
Southern District of California, and elsewhere, defendants
MARGARET CANADA, ANNE BELLE WELSH, and
CLARENCE SCOTT TURNER did knowingly and
intentionally combine, conspire, and agree together and with
each other and with divers other persons unknown to the
17a
grand jury to commit offenses against the United States,
namely, to knowingly and intentionally possess, with intent
to distribute, approximately 4 pounds of heroin, a Schedule I
Controlled Substance and 1 pound of cocaine, a Schedule II
Controlled Substance; in violation of Title 21, United States
Code, Sections 841(a)(1) and 846.
OVERT ACT(S)
In pursuance of said conspiracy and to further the objects
thereof, the following overt act(s), among others, were
committed in the Southern District of California and
elsewhere:
1. On or about February 16, 1975, defendants
MARGARET CANADA, ANNE BELLE
WELSH, and CLARENCE SCOTT TURNER met
at the San Diego International Airport, San Diego,
California.
2. On February 16, 1975 and February 17, 1975,
defendants MARGARET CANADA, ANNE
BELLE WELSH, and CLARENCE SCOTT
TURNER rode together in a vehicle in the Southern
District of California.
3. On February 16, 1975 and February 17, 1975,
defendants MARGARET CANADA, ANNE
BELLE WELSH, and CLARENCE SCOTT
TURNER met at the Travel Lodge Motel, 9th and A
Streets, San Diego, California.
18a
COUNT TWO
Title 21, U.S.C., Sec. 841(aX(1)
On or about February 17, 1975, inthe Southern District of
California, defendant(s) MARGARET CAN ADA,
ANNE BELLE WELSH and CLARENCE SCOTT
TURNER did knowingly and intentionally possess, with
intent to distribute, approximately 4 pounds of heroin, a
Schedule I Controlled Substance and approximately |
pound of cocaine, a Schedule Il Controlled Substance; in
violation of Title 21, United States Code, Section 841(a)(1).
COUNT THREE
Title 21, U.S.C., Sec. 841(aX(1)
On or about February 17, 1975, inthe Southern District of
California, defendant(s)
ANNE BELLE WELSH
did knowingly and intentionally possess, with intent to
distribute, approximately 2 ounces of cocaine, a Schedule II
Controlled Substance; in violation of Title 21, United States
Code, Section 841(a)(1).
A TRUE BILL:
/s/
Foreman
HARRY D. STEWARD
United States Attorney
by /s/ HOWARD A. ALLEN
Asst. U.S. Attorney
UNNI aaa direct 20s ee 2.
19a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
November 1975 Grand Jury
UNITED STATES OF AMERICA, ) Criminal Case No.
76-0284
Plaintiff,
INDICTMENT
Vv.
Title 21, U.S.C., Sec. 952,
960, and 963 - Illegal
Importation of a Controlled
Substance; Title 21,
U.S.C., Sec. 841(aX{1) -
Possession of a Controlled
Substance with Intent to
Distribute; Title 18,
U.S.C., Sec. 545 - Smug-
gling Merchandise
STEPHANIE MARIA GURLEY,
Defendant.
The grand jury charges:
COUNT ONE
On or about March 21, 1976, in the Southern District of
California, defendant STEPHANIE MARIA GURLEY
did knowingly and intentionally import, and attempt to
import, approximately 2,468.48 grams of heroin, a Schedule
I Controlled Substance into the United States from a place
outside thereof: in violation of Title 21, United States Code,
Sections 952, 960 and 963.
20a 2la
COUNT TWO
f
44.
omplaint
e ee
Ptates Bistrict Court
On or about March 21, 1976, in the Southern District of TTT ies on eens :
California, defendant(s) STEPHANIE MARIA GURLEY WATS i576 wee SS
did knowingly and intentionally possess, with intent to vx =e HE coo COMPLAINT for VIOLATION of
distribute, approximately 2,468.48 grams of heroin, a JERRY WORD | use. tite 2
BOYER BRACY, aka B. Carter,
Schedule I Controlled Substance; in violation of Title 21, og oe + — "ee ed 1 eee
Title 21, U.S.C., Sec. 841(a)(1) il
United States Code, Section 841(a)(1). TE BAQ?Y Ronty 8, metus) San Diego, California |
om ¢ eer Pe eed
COUNT THREE
On or about March 21, 1976, in the Southern District of
California, defendant STEPHANIE MARIA GURLEY
wilfully and knowingly and with intent to defraud the United
States, did smuggle and clandestinely introduce into the
United States from Mexico certain merchandise, to wit,
approximately 11 pounds of merchandise, which should
have been invoiced, and which merchandise is subject to
forfeiture; in violation of Title 18, United States Code,
Section 545.
A TRUE BILL:
Foreman
TERRY J. KNOEPP
United States Attorney
by /s/ STEPHEN W. PETERSON
Assistant U.S. Attorney
nd BA Basan 0 + nee si
a >.
ee Oe
ee ee
The undersigned complainant being duly sworn states
That beginning at # date unknown and continuing up to and including
April 13, 1976, in the
Southern Districtof California, the Eastern District of Michigan
and elsewhere,
coasy Word, Boyer Bracy, Juanita Louise Kendricks and Denise Martin
combine, conspire, confederate andagree with each other and
others unknown, to knowingly and intentionally import 5.5 pounds of
heroin into the United States from Mexico and possess with intent to
distribute 5.5 pounds of heroin, in violation of 21 U.S.C. §§841l(a) (1),
And the complainant states that this complaint is based on 846,952,960 & 963.
the attached emmy effidevit.
And the complainant further states that he belleves that
WILLIAM K. LUNSFORD’ ”~"”
‘Yip Ju £3
22a
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
REPORTER’S TRANSCRIPT
of
PROCEEDINGS BEFORE GRAND JURY NO. 76-2
San Diego, California
APRIL 14, 1976
WITNESS: JAMES PORTER
APPEARANCK(S):
STEPHEN R. PETERSON, ESQ.
ASSISTANT UNITED STATES ATTORNEY
UNITED STATES DISTRICT COURT
325 WEST “F” STREET
SAN DIEGO, CALIFORNIA 92101
REPORTED BY:
LOIS MASON, CP
/s/ Lois Elaine Mason
te as tn IO
23a
INDEX |
GRAND JURY EXHIBITS:
1 - PHOTOGRAPH 7
2 - PHOTOGRAPH 7
3 - PHOTOGRAPH 7
4 - PHOTOGRAPH 7
San Diego, California, Wednesday, April 14, 1976,
1:30 p.m. |
=
JAMES PORTER,
having been called as a witness, was examined and testified
as follows:
EXAMINATION
By Mr. Peterson:
Q Would you state your full name and spell your last
name for the record, sir.
A James Howard Porter, P-o-r-t-e-r.
Q Now, Mr. Porter, before we begin, I would like to
advise you that anything you say here today before this grand
24a
jury will not be used against you in any subsequent
proceeding. Do you understand that?
A Ido.
Q And that would be a subsequent proceeding here in
this District, in the Southern District of California, or any
other District, do you understand that?
Yes.
Do you have an attorney?
Yes.
And his name is what?
David M. Shackter.
And are you here today with his advise and consent?
Yes, I am.
And is he outside the grand jury room right now?
Yes, he is.
Do you understand, Mr. Shackter — excuse me, Mr.
Porter, with respect to your appearance here today, that the
Government will be seeking a grant of immunity of use
immunity for you in the next week, do you understand that?
A Yes, I do.
Q And we also advise you that the purpose of this grand
jury meeting here this afternoon is to investigate possible
violations of federal law, including, but not limited to,
conspiracy, conspiracy to smuggle hard narcotics from
Mexico into the United States, and possession of those
narcotics with the intent to dispose of them once they are in
the United States. Do you understand that?
A Ido.
Q Having in mind, then, what I have just advised you,
and having in mind the previous discussions that you and
your attorney and myself have had this morning, are you
agreeable to speaking before this grand jury this afternoon?
HDPrOH FA PHN PLN Se
ee
25a
A Yes, I am.
Q All right. Now, where were you born, sir?
A Evansville, Indiana.
Q And did you spend a part of your life in the city of
Detroit, Michigan?
A Twenty-six years.
Q_ How old are you now?
A Twenty-seven.
Q So it was at a very early age that you moved to
Detroit?
A few weeks old.
Now, do you know a Boyer Bracy?
Yes, I do.
And how did you come to know him?
Through a friend of mine.
And did you ever enter into an employer-employee
relationship with Boyer Bracy?
A_ Yes, I did.
Q_ And how long ago did that occur?
A Inthe late part of ’74, all the way up to November of
75.
Q ‘75. And prior to that employer-employee relation-
ship, did you know him before that?
A Yes.
‘i Q And what type of relationship did you have with him
en?
A Friends.
Q So, in total then, how long have you known Boyer
Bracy, just roughly?
A Five years.
Q Five years? Okay. Now, do you know a Jerry Word?
A Yes.
DOPrA FPA >
26a
Q_ And how do you know him?
A Through Boyer Bracy.
Q And do you know if there is a relationship, a blood
relationship, between Boyer Bracy and Jerry Word?
No, I don’t.
Now, do you know Juanita Kendricks?
Yes, I do.
And who is Juanita Kendricks?
Boyer’s mother.
And where does she live?
She lives in Michigan, in the Ravines. I don’t have the
address, but she lives in the Ravines.
Q What is the Ravines? Is that a city —
A It’s in Michigan. That’s all I know.
Q Where does Boyer Bracy live?
A. Hehas several addresses. I only know of one address
which is 1394 Pearson in Oak Park, Michigan.
Q Pearson?
A Pearson, P-e-a-r-s-o-n.
Q Now, what was that employer-employee relationship
with Boyer Bracy during that period of time that you
mentioned?
A Well, I was mostly employed by one of his ladies at
one of the homes that he has, and I would — I would do
errands, pick up cleaning, several different things like that.
Q Sort of a houseboy, would you call yourself?
A Right.
Q Now, what did you come to realize was Boyer Bracy’s
occupation?
A How did I come about it?
Q Did you ever come to know how Boyer Bracy earned
his money?
POP>rA PD >
27a
A Through — like being around the house and being
around so much money, hundreds of thousands of dollars,
and I also cleaned the home and there was heroin and mixed
stuff for the heroin where it was cut down in the basement.
The messes had not been cleaned up and I cleaned up the
remaining of the sticky — of this stuff, where they had cut the
stuff at.
And are you referring to one specific residence?
Yes.
And which residence was that?
Pearson, 1394.
And he still owns that residence?
Yes.
All right. Now, who is “Slim’’?
Slim is Juanita Kendricks ex-oldman.
And do you know what his name is?
No, I don’t.
The name he goes by?
No, I don’t.
Mr. Peterson: Could this be marked as Grand Jury
Exhibit No. 1?
PAO PFA PA FPA PD PO
(Said document was marked as
Grand Jury Exhibit No. 1 for
identification. )
By Mr. Peterson:
Q Now, Mr. Porter, I am going to show you a picture and
I am going to ask you not to look at the back of it. I am placing
before you what has been marked Grand Jury Exhibit No. 1.
Do you recognize the person whose face appears thereon?
Q Yes, I do.
Q_ Who is that?
28a
A Slim.
Mr. Peterson: May these next three pictures be marked for
Grand Jury Exhibits 2, 3 and 4?
(Said documents were marked as
Grand Jury Exhibit Nos. 2, 3 and 4
for identification. )
By Mr. Peterson:
Q lam placing before you now, sir, Grand Jury Exhibit
No. 2.
A Juanita Kendricks.
Q The picture that appears thereon is Juanita
Kendricks?
Yes.
She is the mother of Boyer Bracy?
Yes.
That is your testimony?
Yes.
Next, Mr. Porter, I will show you what has been
marked Grand Jury Exhibit No. 3.
A Boyer Bracy.
Q That's Boyer Bracy.
A Yes.
Q And lastly, I show you Grand Jury Exhibit No. 4.
Whe is that?
A Jerry. I recognize the picture.
Q And do you know Jerry’s last name?
A No.
Q Now, Mr. Porter, November, ’75, was the last time
you worked for Boyer Bracy?
A Yes.
Q Did there come a time after that that you moved to
California?
DPrA FA >
A Yes.
Q How soon after November of 75” 4
A The same month, November.
Q And when you moved to California, what city did you
move to?
A Hollywood.
Q Now, did you continue to see Boyer Bracy after
November °75?
A Yes.
Q Okay, And where were you when you saw Mr. Bracy?
A At my home.
Q And how many times did this occur? Regularly or how
many times?
Once.
Just once?
Yes.
And when was that?
That was three or four days before the 21st.
Of March?
Right.
And to your knowledge, what occurred on the 21st of
March?
A_ I was offered three thousand dollars to go to Tijuana
and pick up a package of heroin and bring it back into the
United States, and another party was to bring back the
mixture for the heroin, and I told him I wasn’t interested in
that and I didn’t go.
Q All right. Now, the 21st of March was the day that
Stephanie Marie Gurley was arrested, is that correct?
A Yes.
Q Howmany days prior to that date did this come about,
that you were made this offer?
DFA FA PAD
30a
A It was on a Thursday, Wednesday or Thursday.
Q Prior to that date?
A Yes.
Q_ The 21st of March.
A Yes.
Q And, how were you contacted initially about this
offer?
A Iwas called by a girl named Nicey. She told me that
“B” wanted to see me.
Q That was Boyer Bracy?
A Yes, and they would be at my house within a few
minutes and they came.
Now, this Nicey, who is that?
That is one of Boyer Bracy’s ladies.
And do you know what her full name is?
No, I don’t.
Do you know her last name?
No, I don’t.
Where does she live?
On Kingsley Road or Kings Drive or something like
>O PA AD PP
>
Q_ What city?
A Hollywood — Beverly Hills or Hollywood. I don’t
know just where.
Q Allright. Now, the “B” wanted to see you? And how
were you — were you talking over the phone at this time?
A Yes.
Q And Nicey called you?
A Yes.
Q And during that conversation, did you talk to anyone
else over the phone?
A No.
3la
Q Did there come a time thereafter when you saw
Nicey?
Yes.
Okay. And where was that?
At my home.
And that is located where?
1801 Garfield Place, Apartment 8.
Okay. And who was with Nicey at that time?
Boyer Bracy and Jerry - that’s in one of the pictures.
And was there a conversation that ensued there?
Yes.
And what was the conversation?
That I was to go to Tijuana and pick up this heroin and
bring it back into the United States and somebody else would
bring back the mixture for it and —
Q Who made that proposal to you?
A “B” - Bracey, and I was to receive three thousand
dollars for doing it.
Q_ And did anybody else talk to you about this other than
Mr. Bracy?
A No.
Q Whoall was present when Mr. Bracey made this offer
to you?
Nicey and Jerry.
And this was in your apartment?
Yes.
And your response to that was what?
No.
You were not interested? -
I was not.
Now, after that incident which you recall being on a
Wednesday or Thursday prior to Stephanie Marie Gurley
being arrested, were you thereafter contacted by Nicey?
POPPA SPA PA PAY
DPrA KFA PAY
32a
A Yes, I was contacted on the 21st of March and was
asked by Nicey to go to San Diego or Tijuana, I don’t
remember just which one. She said to pick up her car.
Q What type of car was that?
A A°’73 or 74 white Thunderbird.
Where was she calling from, do you know?
A Tijuana, I believe.
Q Okay. And what was your reply to that?
A I told her that I didn’t, no. I was new in Los Angeles
and I didn’t know anything about over there and as far as
getting around and finding my way back over here and that I
couldn’t, so this was about 8 o’clock in the morning. Later on,
half an hour or hour past, I was called back again by Nicey.
She told me that “B” wanted to talk to me and he asked me to
do him a favor by coming to get this car. They were tired and
they wanted to fly back 1 told him no.
Q Now, did you recognize the voice to be Boyer Bracy?
A It was B. Bracy.
Q And he wanted you to come to Tijuana or San Diego,
did he say?
A He didn’t say.
Q He just wanted you to come down there and pick up
his —
A I don’t know which one. They said San Diego or
Tijuana.
Q And your reply to that was —
A No.
Q All right. Now, did he mention any money that you
would get for doing that?
No.
Did Nicey mention any money?
No.
On either of those calls?
No.
>OPrA YS
33a
EVIDENTIARY HEARING TRANSCRIPT
OF JULY 19, 1976
BY MR. RICE:
Q. Now, I believe you testified, on direct examination,
that you didn’t see who placed the bag, the suitcase on the
table to be put through the conveyor belt. Did you testify to
that a few moments ago?
A. Yes.
Q. Could you be mistaken?
A. Idon’t know who put it on there, but they claimed the
bag.
Q. Did you ever testify, previously, that you saw the
black male, that was with Margaret Canada, put it on there?
A. I might have.
Q. Well, then, if you might have, and assuming that you
did, were you mistaken if you testified that way?
A. At the time I might not have been mistaken, if that’s
what I testified to. I figured my job was through, so I didn’t
remember anything else. I haven’t been working there for two
months, so I have forgetten a lot of things.
Q. Which version would you choose to select? Is it that
you didn’t see who put it on there, or would you say that you
did see who put it on there?
A. Right now, I can say, I didn’t see.
Q. You didn’t see. Well, how did you know it was their
suitcase?
A. Well, they claimed it when it came back to the end of
the belt.
Which one, of the two of them, claimed it?
Both of them.
At the same time?
The man went for it.
POP
34a
Q. I thought I recollect your testimony, previously, was
that you had the conversation with the man, you never had
any conversation with the woman, that the only thing that
you ever heard the woman say was something that you
couldn’t discern what it was, isn’t that correct?
A. Yes.
Q. Well, then, how is it that you claim, now, both of them
claimed the suitcase when it came back on the conveyor belt?
A. Because he reached for it and I assumed that it was
both of their’s.
Q. Well, you testified previously, I believe, that you had
possession of the suitcase. You took it off the conveyor belt,
you took it to the table, and you told the man you had to open
it up because you couldn’t read what was on the X-ray
screen, is that correct?
A. Yes, but he can reach for it at the same time I’m
looking at it.
Q. He was reaching for the suitcase?
A. Yeah.
Q. Youcould tell it wasn’t a bomb, though, couldn’t you?
A. Yes.
Q. And you could tell that it wasn’t a weapon, too,
couldn’t you?
A. Things don’t —
Q. Just —
THE COURT: Just a moment, let the witness finish,
counsel.
MR. RICE: If your Honor please, the witness wasn’t
answering my question, it wasn’t a response —
THE COURT: I think she was. She was attempting to
say something, counsel, the reporter can’t take two people at
one time.
35a
Now, you may finish.
THE WITNESS: Things that go through there, you
don’t have, really, a long time to see what, you know, the
things are. You have to pay attention to what you are doing.
Things come through and flash up there, and you don’t get a
chance to study everything, so if it showed up dark, I'd search
it, anyways.
BY MR. RICE:
Q. Well, now, isn’t it a fact — is it your testimony that
you search everything that comes through the line that shows
up dark?
A. Yes.
Q. And if there is a package of money that comes
through the checkpoint, isn’t it a fact that you could tell that
that’s a package of something, besides of money that you
can’t read what the denominations are?
A. Youmean can] tell ifit’s money, or not on the X-ray?
Q. Yes.
A. No.
Q. Can you tell if it’s metal?
A. I could tell if it’s metal, but I wouldn’t be able to tell
what it was.
Q. Now, when you looked at the object in this particular
bag, or the bag that resembles this bag here, could you tell
that it was not metal?
A. I really didn’t have time to think. I just saw something
large, black, and I had it checked.
Q. You had to check?
A. Yes.
Q. That’s what you told the black male that came
through with the bag. You told him: I’ve got to check this.
Didn’t you?
:
|
36a
A. Yes.
Q. He never told you that you have my permission to
check it, did he?
A. No.
Q. Now, from the time that you took the bag off of the
conveyor belt, how long a period of time elapsed from the
time you said to the black male that you had to open the bag,
before you, in fact, did open the bag?
Well, I waited for his reply.
For how long a period of time?
Just a few seconds.
Two, three?
Five.
PO POP
BY MR. BELL:
MR. BELL: Your Honor has seen fit to distinguish the
Basurto Case from the case at bar. As I understand the
Court’s ruling, that ruling is based upon the fact that the
perjury was not material?
THE COURT: That is one of the reasons. I think it can be
distinguished from the Basurto Case. The Basurto Case, you
must remember that Burron, the witness, testified to certain
activities prior to May, which resulted in the 176(a)
indictment.
MR. BELL: Iam notconcerned about the variances and
the penalties that may have resulted from the indictment,
your Honor. What does concern me is the fact that he
testified about matters that were perjurous. He apparently
acknowledged that.
THE COURT: As to the defendants.
MR. BELL: Well, your Honor, I don’t think that the
37a
Basurto Case indicates that the perjury must in fact relate to
the defendants. As I pointed out to the Court earlier, when a
man testifies and exculpates himself and says, I am not
involved in any of these nefarious dealings, the jury looks at
him in one light. When he says, I was a part of it, they look at
him in another light. The defendants were at least entitled to
that at the time that he made that assertion to the grand jury.
Furthermore, had he been permitted to appear before the
grand jury, we could have then queried him further on the
matter and might have established to the satisfaction that if
there was in fact a conspiracy, he was dead in the middle of it,
and, therefore, not worthy of belief. And we were not given
that opportunity. And that is why this Court makes no
distinction as to the perjury. But let me go a step further, your
Honor. It says that when the prosecutor discovers the
perjury, he still has to take certain steps, whether it is
material or not. That, he did not do. This Court must decide
well in advance of trial whether the perjury was material. We
can’t decide it now because we have no way of going back
before the grand jury. Your Honor has made an assumption
that the grand jury indicted, based on Mr. Lunsford’s
testimony, as opposed to Mr. Porter’s. There is nothing in
Basurto that permits your Honor the liberty of that ruling.
The Court says we can not invade the grand jury. If there was
perjury committed, he has a duty to tell us whether it is
material or not. He did not do that. If there is perjury
committed, he has a duty to tell this Court. he did not do that.
Your Honor, Basurto deals with perjured testimony, not
testimony that relates to the defendants — perjured testi-
mony — period. And that is probably why they say — and
your Honor read the quote — testimony that is partially
perjured can not be used to form an indictment? What
38a
happens to Mr. Peterson’s duty under your Honor’s ruling?
Are we now at the whim and caprice of the prosecutor to
determine that the man lied about himself and not the
defendants and, therefore, we are not entitled to know. His
credibility is one of the most serious issues in the trial.
Suppose the defendants choose not to testify? The only
way that we have of convincing this jury of their innocence is
to attack the witness, James Porter, because he’s the one that
says they are involved. He’s the one who said they did certain
things. If his testimony before the grand jury about his own
involvement is not material, your Honor, then nothing is
material. Your Honor even said to me a moment ago, yes, I
would be entitled to instruction to the jury that they should
use testimony of an accomplice with great caution. And you
said further, I will even give you the perjury instruction. Yes,
your Honor, he has committed perjury. Your Honor
acknowledged that. Mr. Peterson acknowledged that. The
witness said so. I am now concerned, your Honor, with his
duties, without regard to whether Basurto is applicable to
these facts — we obviously disagree on that. the Court says,
when he learns of perjured testimony, he must do these
things. If the testimony was not material, how about
notification to us? Weren’t we entitled to know that the
witness lied to the grand jury about his involvement? You see,
your Honor, what you are doing, you are permitting Mr.
Peterson the luxury of taking the witness to the grand jury and
when that witness lied, he did not take him back, so when we
come to trial, we don’t have the advantage of having two
different grand jury transcripts, and this witness has told two
different stories. We now have to plug and dig for ourselves
when he has a duty — a duty prescribed by law. He has a duty
to give it to this Court. I would like this Court to query him as
39a
to how did he satisfy those duties? This case says “perjured
testimony.” Assuming this testimony does not relate to these
defendants, but it is perjured — he admits it — how can he
comply with his duties? He must notify us. That is the only
way in which we can have a fair administration of justice. If
he is permitted to get eway with this, your Honor, my God,
nothing is holy. We have no way of defending ourselves from
the kind of testimony that this man gave before the grand
jury. Just supposing we did not make the distinction between
the testimony before the grand jury and the discovery
materials, most of which don’t amount to really very much at
this time anyway. Here, we are stuck with this man testifying
that he was not involved. I don’t think, your Honor, that was
the intent of Basurto. Basurto says, in the interest of fairness
— in the concept of fair play, so that we have an honest
administration of justice, because the grand jury is uniquely
and peculiarly the tool of the prosecutor. He must do certain
things when he finds out the witness has lied before the grand
jury. It doesn’t make any difference whether he lies about the
defendants or himself. If he lies, he is under a duty. He must
comply with that duty by notifying us. In this case, not only
were we not notified, the information was kept from us —
kept from the Court. How then can the Court make a ruling
that Basurto does not apply? Basurto, at least, applies with
respect to-perjured testimony. Now, if the testimony is not
material, I say again, the time to make that determination is
in advance of trial. If he had lived up to his duties, we could
have done so. He did not do it and I say to this Court, failure
to comply places this case squarely within what Basurto
intended for the prosecutor to do when he learned of perjured
testimony. When he doesn’t do that, your Honor, un-
fortunately, the law is clear — the law is clear, these
detv.idants should not be forced to stand trial. They are
standing trial on an indictment that even the Court admits is
perjured. The Court said he lied — not about the defendants,
but about himself. His character is one of the principal issues
in this case. If we can show that he is a liar and that he
perjured himself and can show it often enough, we may be
able to convince the jury that he is not worthy of being
believed. That is an important issue in this case. But when he
commits perjury before the grand jury and when he never
purges himself of it — and I call your Honor’s attention to
Mr. Peterson’s statement by the witness. Mr. Peterson said,
he said he was going to indict me for perjury unless I got up
there and told the truth. Now, Mr. Peterson has already
threatened him with a perjury indictment. He thought it was
serious enough to threaten him with an indictment. And now,
your Honor, we take the position that since it did not relate to
the defendants that all is well and that we should proceed on
to trial, but why should these defendants be forced to stand
trial because of Mr. Peterson’s mistake? That is exactly what
it boils down to. He made a mistake because he did not
comply with Basurto. This case says that is a violation of the
due process rights and that they should not be forced to stand
trial on an indictment that has been taken from perjury. No
matter how severe the taint, if it has been tainted, he had an
obligation. He didn’t do that, your Honor, and if you force us
to continue with this trial, your Honor, you are letting Mr.
Peterson put this Court in the position of denying these
defendants their rights, and I just don’t think it is fair.
MR. RICE: May I be heard? I haven’t said anything.
THE COURT: Certainly, Mr. Rice.
MR. RICE: Your Honor, I concur in everything that
Brother Bell has said and I would simply add to that, as I
understand the Basurto Case, I argued this case in the Ninth
Circuit last year, but on a different point, on the point
4la
concerning conspiracy.
I have thoroughly and carefully analyzed this case and
what the Court is saying is that the courts of this country are
jealous of the meticulous way in which the administration of
justice is handled in the courts. If the court stands for
anything, first of all, ic stands for truth and veracity. That is
what the United States Supreme Court was talking about in
Mooney v. Holohan, 294, U.S. — I forget the page number
— but the Court, I am sure, is very well aware of that case,
Brady v. Maryland, 373 U.S. 83, and other cases of similar
import.
The courts, and especially the federal courts — and I
would say by analogy, all the courts of this land are very
concerned about the bringing of the truth into the courts. As
stated in the Basurto Case, once the water is muddy — the
Court there is talking about an impropriety on the part of the
government officials, and this case, as well as the Basurto
Case, the Court is talking about perjury. I am sure that this
Court knows, not only now, but as soon as you were sworn to
the oath to uph Id the laws of the United States, you
appreciated the fact that the law of the Appellate Courts are
being obeyed by the district courts. As in this case here, your
Honor has taken the assumption that when Judge Furguson,
in writing the opinion, stated that any perjury — your Honor
has taken the position that the judge apparently meant
something else, but it has always been my understanding of
the law that a statement of the law means whai it says. Now,
he says any perjury, and I think that what the Court is trying
to say to the lower courts is that when a situation like this
arises whereby proceedings have been tainted by false
testimony, whether it be by lay witness or whether it be by a
government official, the court has to stop and act on that
tainted evidence. Now, we can’t but accept the fact that in
42a
this case the evidence as testified to by Mr. Porter is
extremely tainted. Now, here is a court that is symbolic of
justice, righteousness, and everything else — purity, as it
reflects itself before the citizenry of this country, and
especially in this particular district, this Court is sitting
listening to testimony that acknowledgly is perjured against
the defendants. The Court said, well, he was talking about
himself, but the Appellate Court in the Basurto Case did not
make such a distinction. The Court there clearly indicated
that if there is any perjury, then the Court has to act on it
because, first of all, there is no rule under the law to permit
this court, number one, to determine what the grand jury
relied upon, as Brother Bell has pointed out, because to do so,
you would have to invade the sanctity of the grand jury
proceedings. These proceedings before the grand are
secretive. The Court, nor would the defense counsel have
any way or opportunity to go back and question the grand
jury as to why they decided to issue an indictment in this
case. So then if the Appellate Court in the Ninth Circuit has
so clearly and unequivocally expressed what rules the courts
of the various districts are to abide by in the Ninth Circuit, I
can’t see how this Court can ignore the oath this Court took
and disregard the clear mandate of the Ninth Circuit. I don’t
think that this Court should properly — could properly
distinguish a case where there are no distinguishing features.
As Brother Bell has pointed out, this case is on all fours with
the issue that is before the Court. The question is not what
might have happened or could have happened. It is what did
happen. In this case, unequivocally, Mr. Peterson has not put
himself in any way — even substantially, within the three
prongs mandated by the Ninth Circuit. He doesn’t claim to
this Couri that he gave notice to the Court of a discovery of an
admission of perjury before the grand jury. It seems to me —
43a
if 1 am in error in saying it — it seems to me there was a clear
cut attempt to secrete and conceal the fact that this witness
had lied before the grand jury. Now, the Court sitting here
and hearing this type of evidence has an affirmative duty to
do something about it.
We are asking your Honor to do what the law requires you
to do and what you have sworn that you will do under the law.
Now, to say that I am going to take it under submission at this
point and rule on it at a later time and you can submit some
additional law, I don’t think we could ever submit any more
clear and unequivocal law than the Basurto Case, which is a
Ninth Circuit opinion binding upon this Court. And for your
Honor to say that your Honor would look outside and into
other jurisdictions to see if there is some additional law is an
act of futility because, even if there is, you would still have to
come back and be bound by Basurto. So then if there is any
failure in the Basurto mandate to this Court, what this Court
has to do, then we should discuss that here, and now is the
appropriate time because this is the law of this circuit.
Your Honor has clearly indicated on prior issues that you
are not bound necessarily by decisions of some other circuit,
that you would have an opportunity to look at it and
determine if it is in conformity with the Ninth Circuit, but
that is not the situation here. We have the law of the Ninth
Circuit and have presented it to you. Although it may be a
very distasteful thing to have to do and it may be an
unpopular thing to do, but still you are bound by your oath
like I am bound by my oath to uphold the laws of the United
States. And this is the law of the Ninth Circuit.
We would respectfully ask the Court to reconsider your
position. I don’t think, your Honor, that your Honor would
have any right whatsoever under the law to disagree with a
decision of the Ninth Circuit.
44a
Now, as your Honor clearly read the statement of the
deciding jurist or the jurist that wrote the opinion in this case
that the reference is to any perjury and it does not divide the
perjury. I think, clearly, the Court is concerned that when a
witness is utilized in the administration of justice, whether it
be in the pretrial stages or during the trial stages, that the
Court has to look to truth and veracity from all aspects.
Now, I take, for example, in the Fifth Circuit case of
Upshaw v. United States, which no doubt this Court is very
well familiar with, 448 F.2d., commencing at page 1218, and
in that case, the Upshaw decision was dealing with a
situation where an agent had testified to some facts er-
roneously before the grand jury and the question came up
that since an evidenciary hearing had been held and nothing
had been done about it during that time that nothing could be
done about it during the trial stages but the Fifth Circuit held
that whenever it comes ic the attention of the Court that in the
administration of justice that tainted evidence has permeated
the record — has come into play in the record, the Court has
to stop and act on that. The Court has to recognize the fact
that if the Court is to stand for anything, it has to stand for
truth and veracity.
Thank you.
THE COURT: Very well. Upon the motions to dismiss
or the judgment for acquittal. If the defendants come within
the rule of Basurto, they are not entitled to any more relief
than was afforded Mr. Basurto. In that case, the Circuit
reversed the conviction of Mr. Basurto and returned it to the
trial court. Now, we all know that a reversal of a conviction,
absent further directions of the Appellate Court, does not bar
45a
a retrial. So I would assume that Mr. Basurto was retried.
The granting of a dismissal of the indictment in this case
could, and the granting of an acquittal would have the effect
of placing jeopardy before the Court. Nothing in Basurto
requires that. I have read the case very carefully and all that
Mr. Basurto got was reversal and a retrial. If the counsel feels
that they have been prejudiced, that their clients are not
getting a fair trial because of Mr. Peterson’s failure to call
their attention to the perjury of Mr. Porter — failure to make
him back before the Grand Jury or failure to advise the Court
of the perjury, the Court will hear motions for a mistrial.
MR. BELL: Is your Honor aware that Mr. Basurto was
never retried because jeopardy had set in?
THE COURT: I don’t know. I know, when the law is
reversed, jeopardy does not attach. I can cite you cases on
that. If you feel that your client’s positions are such that they
haven’t — can not receive a fair trial, I will hear you make a
motion for mistrial, but I will not grant a judgment of
acquittal. I don’t think the misconduct of their behavior or on
the part of Mr. Peterson is such that these defendants can go
scot-free, assuming a jury should find them guilty.
BY MR. BELL:
MR. BELL: I am sorry — before the indictment came
down. But again, before trial. This case doesn’t say anything
about before the indictment. It says, before trial.
Your Honor, by all that is sacred, if Mr. Peterson found out
about it, he should have communicated the facts to your
Honor and to us. The fact of the matter is, your Honor, we
didn’t even know about it because it wasn’t contained in any
of his notes. He never submitted a single note to us to indicate
46a
that that man had committed perjury before the Grand Jury.
That is why this Court says “The Grand Jury is the tool of the
prosecutor. They must fastediously guard to make sure that
nothing improper takes place.”” When he learns of that
perjured testimony, he must report it to the Court and to
opposing counsel. And with the perjured testimony before
the Grand Jury, if that is your Honor’s ruling —
THE COURT: Well, counsel, I am saying thai I am not
dismissing the indictment. I am not granting a judgment of
acquittal, and if counsel wishes to make a motion for mistrial,
I will hear them.
MR. BELL: Well, your Honor is putting me in a kind of
an untenable situation. See, your Honor is telling me that if I
make a motion for a mistrial then I can’t argue double
jeopardy at the next trial, and I want the record to clearly
reflect it is the position of the defendant, Juanita Louise
Kendricks, that jeopardy has set in.
THE COURT: Tell me; are you making a motion for
mistrial, or aren’t you, Counsel?
MR. BELL: I am telling you, your Honor, why I can’t
make a motion for mistrial unless, your Honor, it is with the
Caveat that the motion for mistrial is the only motion that
your Honor will hear, and your Honor knows that my motion
for a mistrial does not mean that I am waiving my claim to
double jeopardy.
Yes, I am making a motion for mistrial.
THE COURT: Is that with the concurrence of your client?
MR. BELL: Yes, your Honor.
THE COURT: And no Caveat. It is a motion you made.
The Court is not considering that. I feel that, Counsel, this
case can be distinguished from Basurto, but in an over
amount of caution, I have given you the oppotunity to move
for a mistrial because I think any error — and I make errors,
47a
as we all do — should be corrected at the trial level, not, if
these defendants were convicted and three years later and it
comes back for another trial.
It is up to you, Counsei, if you wish to make a motion for
mistrial without any Caveats, I will consider it, but I will not
consider it if there are strings attached.
MR. BELL: How, your Honor, can we correct the error
that has occurred?
THE COURT: That is for Mr. Peterson. I don’t know
how it can be corrected. That is for him. I am assuming that, if
I grant your motion for mistrial, that Mr. Peterson should
have notified you, should have done at least one of the three
things —
MR. BELL: They did one of the things in Basurto. The
prosecuting attorney did notify the lawyers. He didn’t notify
the Court or Grand Jury. Here, he has done nothing.
THE COURT: So he didn’t do anything.
MR. BELL: May I have an opportunity to consult with
counsel?
THE COURT: You may.
When you gentlemen discuss it, if a mistrial is to be
granted, it will be on your motion, not the Court’s motion.
MR. BELL: Well, I understand that, your Honor.
THE COURT: And if Mr. Peterson can correct the
errors, that is his problem.
MR. BELL: Maybe we should hear from him as to how he
purports — your Honor feels that there are errors,
apparently.
THE COURT: I said that, in an over abundance of
caution, I want to see that the defendants get a fair trial and if
you think that his failure has affected your ability to properly
represent your client, I have indicated that I will hear you on
a motion for mistrial.
48a
MR. BELL: I think that what he has done is he has failed
to give them their rights to due process under the Fifth
Amendment as set forth in the Basurto Case. I want to
know from your Honor, how is it, your Honor expects Mr.
Peterson to cure that?
THE COURT: I don’t tell the United States Attorneys
how to run their offices, Counsel.
MR. BELL: I don’t want your Honor to help them either.
THE COURT: No. I have got enough problems,
Counsel.
MR. BELL: May we consult?
THE COURT: Certainly.
MR. MINKIN: May I make one observation?
THE COURT: You may.
MR. MINKIN: Your Honor, somehow there seems to
have evolved a general consensus that Mr. Porter’s first
testimony before the Grand Jury was perjured, but who is to
tell really, in the final analysis, except by jury verdict which
version it was?
THE COURT: That is correct.
MR. MINKIN: But everybody seems to have lapsed
into—
THE COURT: I will offer you the same thing as Basurto
got and he got a retrial. Now, whether the United States
Attorney elected to retry him or not—when the Circuit
Court reverses a case, it can go to trial. It is not jeopardy. If
they say, dismiss the indictment, that is something different.
MR. MINKIN: I agree, your Honor.
MR. RICE: Your Honor, if they reverse and remand, it
goes back for new trial.
THE COURT: All right. Maybe I am wrong, but this is
my ruling, Counsel, and you can accept a mistrial or we will
proceed with this trial.
We have spent a half day yesterday. You make the
49a
decision. I will give you a few moments, until 10:00 o’clock
to make the decision whether you wish to proceed or you
wish to accept—to make a motion without strings for
mistrial.
MR. RICE: Your Honor, may I ask this question; will
you give us—or at least me and my client—leave for time to
take an appeal to the Ninth Circuit?
THE COURT: No. I won’t give you time. You may
pursue any right that you have, Counsel. I don’t see that I
have to give you any time. Mr. Word is in custody. If Mr.
Peterson elects to go before the Grand Jury and get an
indictment, the case will go into the pot. What the judge that
hears it will do, I don’t know.
MR. BELL: Well, your Honor, there is one thing that
your Honor can do for us; your Honor can ask Mr. Peterson
now what he plans to do about what has been done, because
we can’t make an intelligent decision—
THE COURT: I think. Mr. Bell, Mr. Peterson will go
before the Grand Jury probably by noon today.
THE COURT: And do what?
MR. BELL: And do what?
THE COURT: Get another indictment. I don’t know.
MR. BELL: Well, if that is the case, your Honor, you
might as well let this one go and go back before the Grand
Jury.
THE COURT: Gentlemen, if you are asking this Court
for a mistrial, I will consider it.
MR. BELL: All right, your Honor, may I discuss it?
THE COURT: We will stand in recess unti! 10:00
o'clock.
(Recess. )
(The following proceedings were had outsiuc the
presence and hearing of the jury.)
50a
THE COURT: Now that counsel have conferred, Mr.
Bell?
MR. BELL: Yes, your Honor, may we be permitted to
make a brief statement, your Honor?
THE COURT: Certainly.
MR. BELL: Your Honor, I have reviewed again with my
brother counsel the facts of this case. Based upon our
reading of the Basurto Case, which is significantly different
than your Honor’s reading, we are forced to conclude that
were we to make a motion for a mistrial and this Court has
insisted that motion must be unfettered by any Caveats and
conditions, that motion for mistrial would then and there
forever bar these defendants to claim that jeopardy had set
in. I think the Court would be correct, if we were to make a
motion—I think they would, in fact, waive their constitu-
tional rights to claim that they had twice been put in
jeopardy. With that in mind, your Honor, and with your
Honor’s almost admission that this record now has certain
error in it and the place to cure the error, if need be, is at the
trial stage, it occurs to me that any termination of these
proceedings must come upon a motion in the form that I
have based it, or along with Mr. Minkin and my brother
counsel, or must be done by virtue of some motion that the
prosecutor would make. The Court has indicated that he
thinks the prosecutor would probably go right back to the
Grand Jury this afternoon, and thereby giving some
credence to the feeling that there is something amiss in the
case that is currently being tried before this Court. We find
it impossible, your Honor, to make such a motion.
Let me go one step further. Early this morning, I called
an associate of mine in Los Angeles, California, who is a
member in good standing of the State Bar of California and
of the Southern District of California with respect to the
Sla
Federal Courts. I asked if he would be kind enough to
contact Judge Warren J. Ferguson, who at the time of the
Basurto case, was sitting by special designation as an
appellate court judge and who did, in fact, write the majority
opinion in the Basurto Case. I asked Mr. Johnson if he
asked of Judge Ferguson questions and would he immedi-
ately communicate those responses to me because I felt that
the Court would want to know in its desire to see to it that
the defendants have a fair trial and that they are accorded
all their constitutional rights. I felt this Court wanted to
know what the Appellate Court meant when they handed
down the Basurto decision. I now report to this Court,
number one, Mr. Johnson is on his way to this Court to
indicate what was said; number two, what was said is
substantially as I now reveal to this Court. Judge Ferguson
said, ““ Anytime a witness lies before the Grand Jury on any
matter, it is material.” And further, that if a witness before
the Grand Jury lies about himself or his involvement in the
case, that may be as material as any other fact in the case,
and further, that they meant, when the prosecutor discovers
that any perjury has been committed that, immediately, the
parties as specified in Basurto must be notified, the court,
and opposing counsel, and, if need be, the Grand Jury was
to determine that the perjury was material to the trial and
the cause at issue. Judge Ferguson also indicated that his
number was 213 688-5263, in the event that this Court
would like to contact him for corroboration, confirmation,
or verification of the facts as I have now indicated them to
the Court and as they will be told when Mr. Johnson arrives
here from Los Angeles.
THE COURT: What is your pleasure?
MR. BELL: My pleasure?
52a
THE COURT: I know what your pleasure is; that wasn’t
a fair question.
Do you wish to proceed with this trial, Counsel, or do
you wish to move this Court for non-suit without any
Caveats, and so forth?
MR. BELL: I do not wish to proceed and will not move
for mistrial because I think whatever motion that is
appropriate now must come from the Government.
THE COURT: Call the jury. We will proceed.
THE COURT: I'll read it to you.
Mr. Clerk, would you mark this as Court’s D or E, I
forget which, now.
We the jury would appreciate clarification of the legal
point as it applies to our deliberations decision regarding
the distinction between conspiracy Counts | and 3 and the
substantive Counts 2 and 4, ie., does the absence of
physical handling of the contraband still constitute guilt
under Counts 2 and 4?
Signed by the foreman, dated this date.
What I would think, counsel, subject to your suggestions,
that I would read the possession, definition of possession
and aiding and abetting. I will give you your thoughts on it.
I’m going to—I think that I have the right to proceed
without them, where this delay—I want to take a look,
we’ve been here three weeks, gentlemen, I don’t want to be
caught in the middle.
(Recess. )
THE COURT: Very well. Now, Mr. Peterson, you were
not here when I read the note to the other counsel, were
you?
53a
MR. PETERSON: No, your Honor.
THE COURT: We the jury would appreciate clarifica-
tion of the legal point as it applies to our deliberations
decision regarding the distinction between conspiracy
Counts 1 and 3 and the substantive Counts 2 and 4, i.e.,
does the absence of physical handling of the contraband still
constitute guilt under Counts 2 and 4?
I mentioned to counsel that subject to their objections,
and I’ll make the same statement to you, that the Court
would read the jury the instruction, possession as defined to
them when I charged them, and also aiding and abetting.
MR. PETERSON: Well, I agree with that, your Honor,
but I would add just one further thing. It’s my belief that the
substantive crime of importation does not have, as one of its
elements, the possession. I believe the Court’s instructions,
with regard to importation, says something to the effect that
the defendant knowingly caused the importation. But there
is no element of possession as far as that substantive crimes
is concerned.
MR. RICE: Well, I don’t see how that could be possible,
how could anybody import something without actually
being in some kind of possession?
THE COURT: I don’t think I’m going to get into that. I
think I'll read the aiding and abetting and the possession.
MR. RICE: I don’t see how you can segregate the
conspiracy charge instruction from the request that the jury
has made, because they’re confused, also, apparently as to
the conspiracy count and | and 3.
MR. BELL: I would echo that, your Honor, their — as I
recall the precise question they want to know the distinction
between conspiracy counts in 1 and 3 and possession in 2
and 4, and then as an adjunct to that question whether or
not, under possession, possession had to be actual as
54a
opposed to constructive. Those were not their words, but —
THE COURT: They posed the question, and then they
define it by saying: “.. . i.e., does the absence of physical
handling of the contraband still constitute guilt under
Counts 2 and 4?”
Now, I don’t propose to tell them what my opinion is or
comment on it, I’m going to leave that up to them. So what I
think we’ll do is bring the jury out and I’m going to read the
question for the record, and ask the Foreman, Mr. Theisen I
believe it is, remind him that I read the definition of
possession and aiding and abetting, and read those and ask
if he needs some more, and see what he wants. That’s the
best I can do, and you gentlemen note your objections
thereafter.
Call the jury.
55a
NIDOMENT AND COMMmITIGNYE 2-48) S —_— EET
_—_ ee eS ere fe
Uwited States of America | Sats A oS
% Ne. 76-0284 - Criminal
BOYER ALFREDO BRACY
‘
On this oth day of October 19 76 came th attorney for the
government and the defendant appeared in person and’ by counsel Wilfred Rice
It Is ADJUNGED that the defendant upon his plea of not guilty and a verdict of gu ity
has been convicted of the offense of conspiracy to illegally import « controlled
substance, in violation of 21 USC 963, as charged in count 1 of the
indictment: illegal importation of a controlled substance, in violation
of 21 USC 952,960,963, as charged in count 2 of the indictment: conspiracy
to possess a controlled substance with intent to distribute, in violation
of 21 USC 846, as charged in count Sof the indictment: possession of a
controlled substance with intent to distribute, in violation of 21 USC
841(a)(1), as charged in count 4 of the indictment.
aorta gate *
and the court ha\ ine asked the defendant whether he has anything to say why judgment should not
be pronounced. and no sufficient cause to the contrary being shown or appearing to the Court
It Is ADJUDGED that the defendant is guity as charged and convicted
on counts 1,2,3,4 concurrent
It Is ADUUDOED that the defendant spteemetrrenaan tad Ro Ie@U sat aE hak AERA IS PET 26s * x
OSU ONErs TAOCEION TE TAO OE SOE KR PATEK BE shall pay a fine unto the
United States in the sum of $25,000, Total fine $25,000, and the defendant
shall stand commited pending payment of such fine.
IT IS FURTHER ADJUDGED that on counts 1,2,3, and 4 to run concurrent ly
the defendant is hereby committed to the custody of the Attorney General
or his authorized representative for imprisonment for a period of fifteen
yeaus,
IT IS ORDERED THAT IN ADDITION TO SUCH TERM OF IMPRISONMENT, DEFENDANT
IS HEREBY REQUIRED TO SERVE A SPECIAL PAROLE PERIOD OF TWENTY YEARS, AS
PRESCRIBED BY 21 USC 960(b)(1) and 21 USC 841(b)(1) (A).
IT IS ORDERED THAT THE UNDERLYING INDICTMENT IS HEREBY DISME SED.
It Is Ompenen that the Clerk deliver a certified copy of this judgment and commitment to the
United States Marsha! or other qualified officer and that the copy serve as the commitment of the
defendant.
> >
HOWARD Z thee hon Pe States Dutret Jud ze
SE OOGET FANE WORE OF led October 4, 1976
LIAM W. Clerk
1. SEER Barer
t court the at of te nights
te counse! and asked hum whether he dered te hawe counsel appointed by the court. and the defendant (hereeper
stated that be waived the right to the sesstance of counsel” ‘Insert <1) “gurlty ond the court bere seteted
; ‘ y end « verdict of guilty (3) “eee guilty, ond @ Soaere
Se ‘Insert “i countis) sember f required
tf any. (2) whether sentences are te run comcurrentiy of cor
t with reference to termunatien of preceding term of te
is
any
the Gre or fine and costs. or until he & otherwise discharged as provided by ‘ae. ‘Enter any order eth respect te
te
162
S6a
_— e — Te
. 76-9284 - iminal
a
United States of America
¥. | No
SANDRA DENISE MARTIN
On this 4th day of October 19 76 came the attorney for the
government and the defendant appeared in person and' by ¢ ounsel, Napoleon Jones
her
It Is ADJUDGED that the defendant upon2miplea of? not guilty and a verdict of guilty
has been convicted of the offenseof conspiracy to illegally import a controlled
substance, in violation of 21 USC 963, as charged in count 1 of the
indictment: illegal imporcation of « controlled substance, in violation
of 21 USC 952,960,963, as charged in count 2 of the indictment: conspiracy
to possess a controlled substance with intent to distribute, in violation
of 21 USC 846, as charged in count 3 of the indictment: possession of
a controlled substance with intent to distribute , in violation of 21 USC
841(a)(1), as charged in count 4 of the indictment.
‘
sects ger x
and the court having asked the defendant whether he hus anything to say why judgment should not
be pronounced, and no sufficient cause to the contrary being shown or appearing to the Court.
It Is ADJUDGED that the defendant is_guj!t eo charané gad veted.
on counts te a to run concurrently
It Is ADJUDCED that/the defendant is hereby committed to the custody of the Attorney General or
his authorized representative for imprisonment for @ period of* THREE YEARS.
IT IS ORDERED THAT I ADDITION TO SUCH TERM OF IMPRISONMENT , DEFENDANT
IS HERESY REQUIRED TO SERVE A SPECIAL PAROLE PERIOD OF FIVE YEARS, AS
PRESCRIBED BY 21 USC 960(b)(1) and 21 USC 841(b) (1) (A).
IT IS ORDERED THAT THE UNDERLYING INDICTMENT IS HEREBY DISMISSED
United States Marshal or other qualified officer and
defendant
3
“neert “by (name of counsel or
te counse! and eked him whether be desired te have counsel appointed by the court, and the defendant
stated that he wawed the right to the eemstance of counsel. Insert (1) “guilty and the court =]
there is @ fectusl base for the ples.” (2) “net gudty ana so verdict of ”~ <3) “net guilty Bayt yr:
Ge a “nele contendere.” os the case may be. ‘Insert “in is) number "of required
(1) sentence of sentences, specifying counts if any: (2) whether sentences are to run concurrently or con-
secutively ond. if consecutively, when each term is to begin with ref tw ter of ding term or to
any other outstanding unserved sentence %) whether defendant is to be further imprisoned until payment of
the ae ee 6 ES eee
recommend a particular instituLon 162
57a
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
UNITED STATES OF AMERICA,
Appellee,
v.
BOYER ALFREDO BRACY,
Appellant.
UNITED STATES OF AMERICA,
Appellee,
v.
SONDRA DENISE MARTIN,
Appellant.
UNITED STATES OF AMERICA,
Appellee,
Vv.
BRENDA BRACY,
Appellant.
wees et et eat ea ea ee ed ed ed ed ed ed ee ed ed ed ea ee ed ed ed aed ee ae a a St
FELD
DEC 2% 177
EMIL E. MrFl, Je.
CtPK, US.COUR! OF AFLAS
NO. 76-3416
NO. 76-3289
NO. 76-3325
OPINION
58a
Appeals from the United States District Court
Southern District of California
Before: WRIGHT and KILKENNY, Circuit Judges, and
GRANT, District Judge.*
KILKENNY, Circuit Judge:
Appellants, together with three others [Stephanie Maria
Gurley, Juanita Louise Kendricks, and Jerry Word], were
indicted, tried and convicted in a jury trial of: (1)
conspiracy to illegally import a controlled substance
[heroin and cocaine] in violation of Title 21 U.S.C. § 963;
(2) illegal importation of a controlled substance [5.5 pounds
of heroin] in violation of Title 21 U.S.C. §§952, 960 and
963; (3) illegal importation of a controlled substance with
intent to distribute [heroin and cocaine] in violation of Titie
21 U.S.C. §§841 (a) (1) and 846; (4) knowingly and
intentionally possessing with intention to distribute ap-
proximately 5.5 pounds of heroin, a controlled substance,
in violation of Title 21 U.S.C. §841 (a) (1).
The indictment before us, which was returned on June
30, 1976, superseded a previous indictment which was
returned on April 28th of the same year. James Howard
Porter [Porter], who later testified for the government, was
named in the June 30th indictment as an unindicted
coconspirator. Boyer Alfred Bracy [A. Bracy], Sondra
Denise Martin [Martin], and Brenda Bracy [B. Bracy]
appeal. We affirm.
*The Honorable Robert A. Grant, Senior District Judge, United States
District Court for the Northern District of Indiana, sitting by
designation.
59a
FACTUAL BACKGROUND
The indictments upon which the counts in the super-
seding indictment were grounded and upon which appel-
lants were convicted are separately summarized to facilitate
the treatment of the issue concerning the number of
conspiracies. The jury found there was one overall
conspiracy.
FEBRUARY 17, 1975, ARREST
(CANADA INCIDENT)
On February 16, 1975, an airport security guard, while
checking luggage at the Detroit airport noticed a large
amount of cash in one Canada’s luggage. Canada was
accompanied by appellant A. Bracy. The security guard
informed a local Drug Enforcement Agency (DEA) agent
who ran a routine check on A. Bracy. He found that A.
Bracy had a long history of narcotics violations. He notified
officials in San Diego, Canada’s destination, to alert them
of this information. San Diego authorities established
surveillance on Canada when she arrived in their city. She
was met at the airport by Turner, a coconspirator, and later
the two of them walked to a waiting car being driven by one
Welsh. The trio rented a room at a local motel and
engaged in a variety of activities around San Diego. Phone
records from the rented room revealed that its occupants
had placed a long distance call to a Detroit number assigned
to the wife of a known lieutenant in a narcotics ring headed
by Juanita Kendricks [Kendricks], a codefendant, and her
husband, Richard, A. Bracy’s parents. The following day,
the 17th, Turner and Welsh went to Tijuana, Mexico, and
they returned that afternoon. Another series of events
followed where one or more of the threesome would leave
the motel room. All three, Canada, Turner, and Welsh
60a
checked out of the motel and headed north from San Diego.
Their car was stopped by California Highway Patrol
officers who asked permission to search the vehicle.
Permission was granted, and the officers found various
narcotics [heroin and cocaine] in the trunk.
JANUARY, 1976, INCIDENT
Porter, an unindicted coconspirator, was employed by A.
Bracy as a cleanup man at A. Bracy’s suburban Detroit
home. One Lomas worked as construction supervisor on the
home. Both men moved to Los Angeles shortly before
Christmas, 1975. Early in 1976 A. Bracy called Lomas
and told him that he would be stopping in Los Angeles for a
visit. A. Bracy arrived at Lomas’ apartment with a girl
friend, Susan Perry, and gave Lomas and Porter money,
allegedly to buy undergarments to conceal narcotics.
Lomas and Porter returned with the clothing. Then A.
Bracy and Lomas drove to San Diego where they contacted
Porter who had flown to San Diego and registered in a local
motel [Royal Inn]. Lomas remained in the room while A.
Bracy and Porter went to Tijuana. In Mexico, they met with
Manuel Banaga (Manning). A. Bracy gave Manning a
briefcase. Following the exchange, A. Bracy and Porter
checked into a Tijuana Ramada Inn. A. Bracy instructed
Porter to wait at the Ramada Inn until Manning arrived.
Manning came to the room, and Porter gave him some car
keys on A. Bracy’s orders. After more waiting, Porter
returned to the San Diego Royal Inn where he had met
_ earlier with Lomas and A. Bracy. Lomas returned to Los
Angeles. The next day Porter called Lomas and was
advised that Lomas and appellant B. Bracy and her children
61a
would be traveling to San Diego. Lomas instructed Porter
to wait for B. Bracy in Tijuana. Upon her arrival in Mexico,
B. Bracy called Manning who returned to her room with the
car keys he had been given by Porter the day before. B.
Bracy left the hotel room with her children and returned
with two bags of baby clothes in which were mixed several
bags of heroin and cocaine. B. Bracy and Porter met and
agreed that since they had a large number of drug packages
she would transport the heroin, and he would cross with the
cocaine. B. Bracy drove into the United States, and Porter
flew into Los Angeles. Once in Los Angeles, Porter met
Lomas and the two were later joined by B. Bracy. The three
agreed that Porter should transport the narcotics to A.
Bracy’s home in Belleville, Michigan, a suburb of Detroit.
Porter departed that night for Detroit, but on arrival he
became suspicious of receiving payment for the smuggling
so he left the heroin and flew back to Los Angeles keeping
the cocaine as security. After Porter returned to Los
Angeles, he was questioned by B. Bracy and Canada as to
why he did not leave the cocaine as directed. Appellants B.
Bracy and Martin tried to convince Porter to turn over the
cocaine. Porter eventually returned the narcotics, but only
after he was paid by A. Bracy.
MARCH 17, 1976, INCIDENT
In mid-March, 1976, Porter was contacted by Martin
and was told that A. Bracy was coming to Los Angeles. A.
Bracy, Martin, and Jerry Word [Word] met Porter in his
apartment. The meeting was organized to continue the
narcotics smuggling effort. A. Bracy again gave Porter
money to buy a girdle for smuggling purposes. Porter flew
to San Diego and later checked into the Ramada Inn in
Tijuana. Six hours later, A. Bracy, Martin, and Word
62a
arrived at the hotel restaurant. Porter passed his room
number to Word in the hotel restroom. Porter also gave the
number to A. Bracy in a similar fashion. Porter returned to
his room and waited for one hour for A. Bracy, Martin and
Word to arrive. A. Bracy brought two kilos of heroin with
him. Porter was assigned to smuggle the heroin across the
border in the girdle. Word and Porter left the hotel together,
but they took separate cabs into the United States. Porter
then flew back to Los Angeles, whereupon he returned to
his apartment. About two hours later, A. Bracy arrived at
Porter’s apartment and took the heroin. He paid Porter
$1,000.00 for his efforts.
MARCH 20, 1976, INCIDENT
On March 20, 1976, A. Bracy again contacted Porter
about going to Mexico. Porter was told to go to the Ramada
Inn in Tijuana as before. Porter waited at the motel for six
hours, and since no one arrived he departed for Los
Angeles. That same day, Word went to the residence of one
Debra Gillenwater [Gillenwater] and asked to borrow a car
that was registered in her sisters name. Gillenwater
consented. Word was accompanied by A. Bracy. Appellant
Martin also registered in a nearby room. On the next
morning Martin called Porter in Los Angeles and A. Bracy
came on the line to inquire why Porter was not in Tijuana.
Porter told A. Bracy that he got tired of waiting and had
returned to Los Angeles. A. Bracy instructed Porter to
' come immediately to Tijuana. Several hours later Martin
again called Porter and asked why he had not left for
Mexico. Porter said he was on his way. These calls were
- verified by telephone logs at the Ramada Inn in Tijuana.
Porter went to the airport but missed his flight and was
forced to call A. Bracy with the news. A. Bracy told Porter
63a
to forget about coming to Tijuana. Additionally, on March
21, 1976, an automobile driven by Stephanie Gurley, a
codefendant, was inspected at the San Ysidro port of entry
and found to contain narcotics. The car was the same one
borrowed by Word the day before. On or about March 21st,
Maxine Chong [Chong] phoned B. Bracy and told her that
someone named Stephanie was in trouble. At trial, Chong
testified that the conversation might have been that Porter
told her that Stephanie was in trouble.
There is substantial evidence that A. Bracy was the
catalyst around whom the overall web of conspiracy was
spun and that the command center of the group was in and
around Detroit, Michigan.
GRAND JURY INCIDENTS
Porter was served with a grand jury subpoena on April 6,
1976, and immediately phoned B. Bracy demanding
$25,000.00 in exchange for his silence. B. Bracy, although
professing innocence, referred him to Detroit. Another
witness received an envelope from B. Bracy which he gave
to Lomas. Inferentially, this envelope contained the money
to pay Porter’s legal fees.
On April 14, 1976, Porter appeared before the grand jury
and told several lies. He testified that he had concluded
working for A. Bracy in November of 1975, had only seen
him once since then, and that A. Bracy had suggested and
he had refused to engage in drug smuggling. Approximately
ten days later Porter told DEA agents that he had perjured
himself before the grand jury. DEA Agent Lunsford
testified before the grand jury on April 28, 1976. He
informed the panel members that Porter had been deeply
involved in the smuggling operations. Porter did not
64a
reappear before the grand jury nor did
specifically inform the members of the
Porter had perjured himself. Neither the court nor
opposing counsel was immediately informed of the perjury.
As of May 26, 1976, appellants had received the
investigating officer’s reports containing the April 26,
1976, admissions by Porter. Additionally, on July 20th,
appellants became aware of Porter's statement to Agent
Lunsford as contained in an affidavit supporting the arrest
of appellants. The grand jury testimony of Porter, Lunsford,
and others was made available to appellants the day before
the trial commenced.
Ht
te
ISSUES ON APPEAL
I. Were appellants’ due process rights violated when the
government failed to immediately notify the court, counsel,
and the grand jury that Porter had committed perjury before
the grand jury?
II. Did the evidence establish, as a matter of law, that
there were several conspiracies, rather than one?
III. Was the prosecutor’s closing argument sufficiently
prejudicial to require a reversal?
IV. Was there a failure on the part of the government to
disclose exculpatory evidence as required by the doctrine
taught in United States v. Agurs, 427 U.S. 97 (1976), and
Brady v. Maryland, 373 U.S. 83 (1963)?
V. Did the security procedures employed by the court
deny appellants a fair trial?
VI. Was the evidence sufficient on the conspiracy charge
to sustain the guilty verdicts against appellant Martin?
65a
L.
It is undisputed that the government did not immediately
inform the grand jury, the court, or the appellants of
Porter’s perjury before the grand jury. At the trial, Porter
admitted that he had perjured himself. Appellants’ counsel,
after a lengthy cross-examination of Porter on the issue of
perjury, moved to dismiss the indictment because the
government had failed to conform its conduct to the
requirements outlined in United States v. Basurto, 497
F.2d 781 (CA9 1974). The district court ruled that Basurto
was distinguishable and offered to entertain a motion for a
mistrial which would not reserve to appellants a double
jeopardy defense. Likewise, the judge refused to grant a
mistrial on his own motion.
On appeal, the appellants argue that Basurto is
controlling and that the lower court should have allowed the
- motion to dismiss. We hold that Basurto is distinguishable.
In Basurto, a government witness testified before the
grand jury as to defendant’s activities in marihuana
smuggling. An indictment was returned based, in sub-
stantial part, on this witness’s testimony. Prior to trial, the
witness informed the government that he had committed
perjury before the grand jury. In fact, he told the
government that a substantial part of all of his testimony
was untrue. The government did inform opposing counsel of
the perjury, but did not so inform the court or the grand jury.
The trial proceeded on the indictment which was largely
grounded on the perjured testimony.
Basurto can be distinguished in two important par-
ticulars: (1) an analysis of Porter’s grand jury testimony
convinces us that it was so far removed from the truth that it
had nothing to do with the return of the indictment. In other
66a
words, when viewed in the light of the other testimony
before the grand jury, the Porter testimony was immaterial;
(2) assuming the materiality of Porter’s testimony, none-
theless, the grand jury totally disregarded it, named him as a
coconspirator and, manifestly, knew he had perjured
himself. Obviously, the grand jury believed Lunsford’s
testimony in connection with Porter's widespread activities
in the conspiracy and did not believe Porter's perjured
testimony. Beyond doubt, the perjured testimony before the
grand jury in Basurto was material. We quote from the
opinion:
“At the point at which he learned of the perjury
before the grand jury, the prosecuting attorney was
under a duty to notify the court and the grand jury, to
correct the cancer of justice that had become apparent
to him. To permit the appellants to stand trial when the
prosecutor knew of the perjury before the grand jury
only allowed the cancer to grow.
“As we have noted above, the perjury before the
grand jury was material because of the change in the
law; all of Barron’s grand jury testimony relating to the
appellants’ activities before May 1, 1971 was perjured.
The grand jury, if it returned an indictment, might have
done so under the Comprehensive Drug Abuse
Prevention and Control Act of 1970, supra had it
known of the perjury.” 497 F.2d at 785. [Emphasis
supplied].
The Basurto court went on to say that the due process
clause of the Fifth Amendment is violated when a
defendant has to stand trial on an indictment which the
government knows is based partially on perjured testimony,
material in nature. Additionally, the court noted that
whenever the prosecutor learns of any perjury committed
before the grand jury, he is under a duty “to immediately
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inform” the court and opposing counsel. Furthermore,
Basurto requires that if the testimony was material, the
grand jury must be informed in order that appropriate action
may be taken. Manifestly, what the Basurto court says with
reference to immediately informing the court and opposing
counsel is said in its supervisory capacity, rather than in a
capacity of imposing a duty on the prosecutor to make such
a disclosure.
Even assuming, as argued by appellants, that the govern-
ment violated Basurto is failing to notify the court and
opposing counsel, we do not believe that the case stands for
the proposition that the indictment must here be dismissed.
Since in Basurto, the government witness’ testimony before
the grand jury was material and the case could have been
decided on that point alone, we suggest that what the court
there said on the duty of a prosecutor to immediately in-
form court and counsel of the perjury, irrespective of
materiality, is dictum. As stated, the perjury exposed in
Basurto was material. Here, the contrary is true. The only
sound reason for requiring the disclosure of immaterial per-
jured testimony before a grand jury is to give the defendants
an opportunity to confront the witness with his perjured
testimony. Here, appellants not only had the opportunity to
read the grand jury testimony the day before the trial
commenced, but went forward on cross-examination and
exhaustively exposed to the jury, the perjury which Porter
had committed before the grand jury.
Aside from the fact that Basurto is distinguishable, we
believe that its requirement that the prosecutor has an
obligation to immediately inform the court and opposing
counsel is weakened if not destroyed by the Supreme Court
decision in United States v. Agurs, 427 U.S. 97 (1976). In
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that case, Agurs was convicted of second degree murder for
killing one Sewell with a knife during a fight. The evidence
disclosed that after a brief interlude in an inexpensive motel
room, Agurs repeatedly stabbed Sewell causing his death.
The only question present was whether the prosecutor's
failure to provide defense counsel with certain background
information on Sewell was grouncs for granting Agurs’ new
trial motion. In particular, the prosecution had failed to
disclose Sewell’s known prior criminal record that would
have evidenced his violent character. Agurs’ sole defense
was that Sewell had initially attacked her with the knife and
that all of her actions had been in self defense. The issue
was raised before the trial court some three months after a
verdict of guilty by a motion asserting that the government
had withheld this evidence and that such evidence was
material to Agurs’ defense. The government opposed the
motion for a new trial and after considering the matter, the
district court denied it.
While Agurs is not a grand jury case, that fact in our view
is not important, The Supreme Court there proceeded to
consider whether the prosecutor has a constitutional duty to
volunteer exculpatory matter to the defense and, if so, what
standards of materiality gives rise to the duty. In this
connection, the Court noted that it was dealing with the
defendant’s right to a fair trial mandated by the due process
clause of the Fifth Amendment to the Constitution and to
the comparable clause in the Fourteenth Amendment
applicable to trials in state courts. From there the Court
advanced to the conclusion that unless the omission
deprived a defendant of a fair trial, there was no
constitutional violation requiring that a verdict be set aside
and, absent a constitutional violation, there was no breach
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of the prosecutor’s duty to disclose. The Court then noted
that the court of appeals must have assumed that the
prosecutor had a constitutional obligation to disclose any
information that might affect the jury's verdict. In
commenting upon this assumption, the Court noted that
such a constitutional standard would approach the “sport-
ing theory of justice” which the Court expressly rejected in
Brady v. Maryland, 373 U.S. 83 (1963). Finally, the
Agurs Court went on to conclude that it did not believe that
the constitutional obligation is measured by the moral
culpability or the willfulness of the prosecutor. It held that if
the suppression of evidence results in constitutional error, it
is because of the character of the evidence, not the
character of the prosecutor. The Agurs Court emphasized
that if the omitted evidence creates a reasonable doubt that
did not otherwise exist, constitutional error had been
committed and that in making that determination, the
omission must be evaluated in the context of the entire
record. 427 U.S. at 112.
We can find no logical reason to say that the tests in
Agurs, a case dealing with a failure to disclose exculpatory
evidence, should not apply to our facts where incomplete
disclosure of the perjured testimony before the grand jury in
no way suggested an absence of guilt on the part of the
appellants. For that matter, the Porter grand jury testimony
was just to the contrary. Manifestly, a greater duty should
be placed on a prosecutor to produce exculpatory evidence
than to disclose evidence which could be used for impeach-
ment purposes only.
Here, Porter’s grand jury testimony was produced on the
day before the trial. On cross-examination, his perjury was
exhaustively exposed by appellants’ counsel. In other
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words, the record clearly establishes that appellants’
convictions were not in any way affected by the failure of
the prosecutor to disclose the perjured grand jury testimony.
For that matter, it appears from the entire record that
omission is sufficiently significant to result in the denial of a
defendant’s right to a fair trial, (2) the mere possibility that
an item of undisclosed information might have aided the
defense, or might have affected the outcome of a trial, does
not establish “materiality” in the constitutional sense, (3)
the prosecutor’s constitutional duty of disclosure is not
measured by his moral culpability or willfulness. If the
suppression of evidence results in constitutional error, it is
because of the character of the evidence, not the character
of the prosecutor, (4) the proper standard of materiality of
undisciosed evidence is that if the omitted evidence creates
a reasonable doubt of guilt that did not otherwise exist,
constitutional error has been committed. Under the
standards outlined in Agurs, the prosecutor's failure to
disclose to the grand jury, the court or counsel, the perjury
of Porter prior to the day before trial, did not constitute
constitutional or other error.
A Ninth Circuit case more recent than Basurto is United
States v. Bowers, 534 F.2d 186 (CA9 1976), cert. denied
ie ( ). There a witness tesufied before the
grand jury that the defendant’s companion had told him that
the companion and defendant had shot a park service
ranger. The same witness at another trial testified that the
companion had told him only that the defendant had shot
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the ranger. The court held that any failure of the prosecutor
to notify the court and the grand jury of the change in the
witness’s testimony was harmless beyond a reasonable
doubt because both versions of the testimony implicated the
defendant and the defense counsel, while aware of the
alleged perjury before the trial, failed to move for dismissal
of the indictment. Here, as in Bowers, Porter’s testimony,
both before the grand jury and at trial, implicated all the
appellants. Here, as in Bowers, the defense counsel were
aware or should have been aware of the alleged perjury
before the trial, but, nonetheless, failed to make a motion to
dismiss the indictment prior to the trial. In Bowers, it is
said:
‘Assuming United States v. Basurto, 497 F.2d 781,
785 (9th Cir. 1974), applies, the failure of the
prosecutor to notify the court and the grand jury of the
change in Phillips’ testimony was harmless beyond any
doubt. Both versions of Phillips’ testimony implicated
Bowers. Appellant’s counsel was aware of the alleged
perjury well before trial, but made no motion to dismiss
the indictment.” 534 F.2d at 193.
On our facts, Bowers, rather than Basurto, would control.
Appellants do not argue that they made a specific request
for Brady material prior to trial or during the course of the
trial. For that matter, they had everything they wanted
when the grand jury testimony was presented. That a
general request for Brady material is insufficient for
reversal where the evidence, if produced, would not create a
reasonable doubt of the appellant’s guilt is held as recently
as United States v. Hearst, __._ F.2d __. (CA9, Nov. 2,
1977) [Sl. Op. 2528, 2552]. The district court did not err in
denying the motion to dismiss the indictment.
72a
IL.
Under this assignment of error, appellants Martin and B.
Bracy argue that the evidence at trial proved, as a matter of
law, that there were several conspiracies, rather than just
one. Both argue that they were not involved in certain of the
transactions and that insufficient evidence exists to create
one conspiracy. B. Bracy says she was not involved in the
February 17, 1975, arrest, the March 17, 1976, incident,
and the March 20, 1976, incident. Martin says she did not
take part in the February, 1975, arrest, the January 16,
1976, incident, and the March 17, 1976, incident. Both
argue that their participation, if any, in the March 20, 1976,
incident was totally innocent.
We have spoken many times on the standard for
determining if one or several conspiracies exist. United
States v. Kearney, ___ F.2d ____ (August 22, 1977);
United States v. Perry, 550 F.2d 524 (CA9 1977), cert.
denied ____ U.S. ___, and United States v. Baxter, 492
F.2d 150 (CA9 1973), cert. denied 416 U.S. 940 (1974),
are our most recent cases on the subject.
In Baxter, a case involving the appellant and seven other
persons, the court applied the following rationale from
Blumenthal v. United States, 332 U.S. 539, 557-558
(1947):
“For it is most often true, especially in broad schemes
calling for the aid of many persons, that after discovery
of enough to show clearly the essence of the scheme
and the identity of a number participating, the identity
and the fact of participation of others remain
undiscovered and undiscoverable. Secrecy and con-
cealment are essential features of successful con-
spiracy. The more completely they are achieved, the
more successful the crime. Hence the law rightly gives
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room for allowing the conviction of those discovered
upon showing sufficiently the essential nature of the
plan and their connections with it, without requiring
evidence of knowledge of all its details or of the
participation of others. Otherwise the difficulties, not
only of discovery, but of certainty in proof and of
correlating proof with pleading would become insuper-
able, and conspirators would go free by their very
ingenuity.” Baxter, supra, at 158, n. 7. [Emphasis
supplied].
Continuing, the Baxter court said that although the
government had failed to prove direct contact and
connivance between the defendant retailers, nonetheless:
“ __ if each knew, or had reason to know, that other
retailers were involved with the Hernandez organiza-
tion in a broad project for the smuggling, distribution
and retail sale of narcotics, and had reason to believe
that their own benefits derived from the operation were
probably dependent upon the success of the entire
venture, the jury could find that each had, in effect,
agreed to participate in the over-all scheme. This
would be true even though the individual defendants
were not aware of the identity, number or location of
the other participating retailers.’’ Baxter, supra, at
158. [Citations and footnote omitted]. {Emphasis
supplied].
More recent Ninth Circuit cases speaking to the same
rule are United States v. Kearney, ____. F.2d ____ (CA9,
August 22, 1977), and United States v. Perry, 550 F.2d
524 (CA9 1977).
The Perry court at page 531 distinguished Kotteakos v.
United States, 328 U.S. 750 (1946), a case upon which
appellants rely by saying: “. .. Each one of the defendants
knew or should have known that other retailers were
involved and that each had reason to believe that what
TR ee ae Cea ee
Oa a i el
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benefits he received were probably dependent upon the
success of the entire venture.”
The Kearney court, the most recent Ninth Circuit
authority, when addressing the subject, said: “It need not
even be shown that an alleged co-conspirator knew all of the
purposes of and all of the participants in the conspiracy.”
[Sl. Op. 1964]. Keeping in mind the standards stated in the
foregoing authorities, we briefly outline the involvements of
Martin and B. Bracy.
Although B. Bracy was not directly involved in the
February 17, 1975, arrest or the March 17, 1976, incident,
her overall activity is undisputed. She is A. Bracy’s sister
and A. Bracy was the central figure in each incident. Her
phone records indicate numerous calls to Manning, the
Mexican connection in the ring. During late January, 1976,
she, Porter, Lomas, and A. Bracy were involved in
smuggling a large quantity of heroin and cocaine into the
United States from Mexico. She also personally met with
Manning in Tijuana. She was involved in the March 20,
1976, incident to the extent that Chong phoned her and
reported that Stephanie Gurley had been arrested. She
arranged money for Porter’s legal expenses. When Porter
called her in his attempt to extort money from the drug ring
in exchange for his silence before the grand jury, she
referred him to Detroit. We hold these connections were
sufficient under the foregoing authorities.
We reach a similar conclusion with respect to appellant
Martin. She was involved in the January, 1976, incident to
the extent that she tried to persuade Porter to return the
cocaine he had kept as security. She was an active
participant in both the March 17th and 20th operations,
even though she did not physically transport the drugs. The
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only involvement to which there is some doubt is the
February 17, 1975, arrest. Although no firm nexus existed
between Martin and Canada, they were both girl friends of
A. Bracy and both sought the return of the withheld cocaine
from Porter. Additionally, the court instructed the jury that
they were no
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