# Petition — Bracy v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0894%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 965 ## Text : 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. 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 67a 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 68a 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 69a 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 70a 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 71a 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 73a 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 74a 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 75a 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 not to consider any act “... unless you should find beyond a reascnable doubt that the person doing the act, making the declaration, was a member of the same conspiracy as was the defendant.” This instruction conforms to the rules stated in United States v. Griffin, 464 F.2d 1352 (CA9 1972), cert. denied 409 U.S. 1009, where the same question was raised. This assignment is without merit. Il. Under this heading, appellant B. Bracy points to various statements by government counsel in its closing argument which she says were prejudicial and contends that they denied her a fair trial. We have carefully examined the complaints and hold that none of them, or in sum total, measure up to conduct which could possibly be viewed as prejudicial. For that matter, it would seem that in each instance, there was evidence to support directly or inferentially the prosecutor’s statement. United States v. Escoto-Nieto, 417 F.2d 623 (CA9 1969), cited by appellant is not in point. Here, the record is replete with references to the value of the smuggled narcotics, as well as the expected payment for bringing or transporting the drugs to major cities in the United States. This assignment is groundless. 4 18a IV. It is claimed that the prosecutor refused to disclose exculpatory evidence under the doctrine taught in Brady v. Maryland, 373 U.S. 83 (1963). Here, all of the grand jury and the Jencks Act testimony was produced. Here, there is no claim that the jury was prevented from hearing favorable evidence on the issue of guilt or that the jury was not advised of government promises, rewards, or assistance provided to government witnesses. The jury was made fully aware of all evidence of a favorable or impeaching nature prior to the case being submitted to them for decision. Thus, there can be no claim of prejudice. United States v. Agurs, 427 U.S. 97 (1976). Even conceding non-disclosure, the prosecutor did not violate a constitutional duty, unless his omission is sufficiently significant to result in the denial of the defendant’s right to a fair trial. United States v. Agurs, supra. We Appellant B. Bracy argues that the number of United States Marshals present at the trial suggested that appellants in some way intended to harm the government witness, Porter. She says that this deprived her of the presumption of innocence, due process of law, and an impartial jury. Since the officers were not in uniform and the case did involve the testimony of a witness who had been threatened, it was certainly not an abuse of the district court’s discretion to permit tight trial security. United States v. Clardy, 540 F.2d 439 (CA9 1976), cert. denied 429 U.S. 963. 77a V1. Martin urges that there was insufficient evidence to support the verdict against her. As we have said time and time again, we must evaluate the evidence in the light most favorable to the government. United States v. Glasser, 315 U.S. 60 (1942). Likewise, we have said time and time again that once the existence of a conspiracy has been established only slight evidence is necessary to connect the specific defendant to it. United States v. Valdovinos, 558 F.2d 531 (CA9 1977); United States v. Costey, 554 F.2d 909 (CA9 1977); United States v. Westover, 511 F.2d 1154 (CA9 1975), cert. denied 422 U.S. 1009. Needless to say, the proof of guilt must be beyond a reasonable doubt. United States v. Dunn, ____ F.2d ____ (CA9, Nov. 11, 1977, as modified Nov. 16, 1977). [Sl. Op. 2674]. This claim is meritless. Even her own brief recites ten individual links between her and the principal conspirators. For that matter, there is substantial evidence placing her in the vortex of the conspiracy. CONCLUSION Our examination of the record convinces us that each of the appellants had a fair trial and that the judgments of conviction should be affirmed. IT IS SO ORDERED. 78a UNITED STATES COURT OF APPEALS NINTH CIRCUIT F i j_ ‘S ry UNITED STATES OF AMERICA, FEB 2 8 1978 | ) ) Appellee, ) _ CLERK v. ) U. S. COURT OF APPEALS | ) NO.76-3416 ) BOYER ALFREDO BRACY, ) ) Appellant. ) ) UNITED STATES OF AMERICA, ) ) Appellee, ) ) v. ) NO.76-3289 ) SONDRA DENISE MARTIN, ) ORDER ) ) Appellant. Appeals from the United States District Court Southern District of California Before: WRIGHT and KILKENNY, Circuit Judges, and GRANT, District Judge.* *The Honorable Robert A. Grant, Senior District Judge, United States District Court for the Northern District of Indiana, sitting by designation. eee a 79a The panel as constituted in the above case has voted to deny the petition for rehearing and recommend rejection of a rehearing in banc. The full court has been advised of the suggestion for an in banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing in banc. FRAP 35 (b). The petition for rehearing is denied and the suggestion for a rehearing in banc is rejected. The issues mentioned in the supplemental briefs were fully considered by the panel. We have considered the petition even though it was late filed and oversized. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0894%3A1. Public record. Not legal advice.