Petition — Kilrain v. United States

| a Supreme Court, U. &

FILED |}

MAR 2) 1978 |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

Case No.: 47-1438 2

JOSEPH EDWARD KILRAIN, a/k/a DUFFY,

JO ANN DAVIS, RICHARD OTHO PIPER,

JACK KILRAIN, a/k/a JACK HICKEY AND

JOHN HICKEY,

Petitioners.

—-VS—

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

RAY SANDSTROM ot

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale. FL 33301

Telephone: (305) 467-6767

INDEX

Opinion Below l

Jurisdiction 2

Questions Presented 2

‘na

Constitutional Provisions Involved

Statement of the Case 4

Reasons for Granting the Writ

1. The failure and unexplained refusal of

the government to furnish, asa bill of

particulars. a// of the overt acts it

intended to put into evidence at trial

as well as the date the conspiracy first

existed. all as ordered by the tnial

court long prior to trial followed by a

wholesale introduction ot previously

undisclosed "overt acts . over objec-

tion. which completely surprised the

petitioners at trial. denied them due

process and a fair trial. 6

2. When the government first willfully

failed to furnish all the overt acts it

intended to introduce at trial as

ordered prior to trial. the subsequent

introduction of those acts was such

that it failed to establish the con-

spiracy charged and created a circum-

stance of the multi-conspiracies con-

demned by this court and held rever-

sible error 9

tw

The use of one defendant as a paid-

informant. who without knowledge

on the part of the petitioners. arranged

a meeting between DEA agents (acting

under cover) and one of the petitioners

so that they among other things. were

able to discuss the pending case: and.

that informant continucd negotiations

for entry of a guilty plea with the

prosecutor through two full days of

trial where he fully shared in defense

strategies and confidences. only to

change his plea and promptly become

J government witness against” the

remaining defendants-petitioners, re-

sulted in unconstitutionally com-

promising the rights of petitioners.

Conclusion

Appendix

Cases:

|

‘ae

10

14

Opinion and Judgment of the Court: of Appeals.

Fitth Cireun

A-l to A-12

Order denving rehearing

A-}3

Order staving mandate pending certiorari

A-\4

Indictment

A-l 5 to A-IS

PABLIE OF AUTHORITILS

Brewer \. United States.

430 US 41977)

Caldwell vy. United States.

92 US. App. D.C. 355. 205

F.2d 879 (1983)

Coplon vy. United States.

8S9US App. D.C. 103.

l91 F 2d 749

Table of Authorities Continued

v

282 F. 2d 818 (9th Cir. 1960)

328 US 750 (1946)

Massiah v. United States.

377 US 201 (1964)

Pierce v. United States,

414 F. 2d 163 (Sth Cir. 1974)

494 F. 2d 1246 (10th Cir. 1974)

United States v. Cruz.

478 F. 2d 408 (Sth Cir. 1973)

United States v. Goss,

329 F. 2d 180 (4th Cir. 1963)

United States v. James.

495 F. 2d 434 (Sth Cir. 1974)

United States v. Joyce.

499 F. 2d 9 (7th Cir. 1974)

United States v. Joyner,

494 F. 2d 501 (Sth Cir. 1974)

United States v. Kelly,

420 F. 2d 26 (2nd Cir. 1970)

United States v. Klein.

546 F. 2d 1259, 1264 (Sth Cir. 1977)

United States v. Miley.

§13 F. 2d 1191 (2nd Cir. 1975)

United States v. Murray.

§27 F. 2d 401. 411 (Sth Cir. 1976)

ill

PAGE

10

10

10

Table of Authorities Continued

PAGI

United States ¥. Padrone. a)

400 F.2d S60 ¢2nd Cir, 1969)

United States v. Perez. s

489 Ff 2d ST. 70-71 (Sth Cir, 1973)

Weatherford ¥. Bursey. 13

US 978 Ct 83701977)

IN THI

SUPREME COURT OF THE UNITED STATES

OCTOBLR TERM, 197°

Case No

JOSEPH EDWARD KILRAIN. a k aDUFFY.

JO ANN DAVIS. RICHARD OTHO PIPER.

JACK KILRAIN. a ka JACK HICKEY AND

JOHN HICKEY

Petitioners

-\ \-

UNITED STATES OF AMERICA.

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Petitioners, Joseph Edward Kilrain. Jo Ann Davis,

Richard Otho Piper and Jack Kilraim, seek to have this Court

issue its Writ of Certiorari to the United States Court of

Appeals. Fifth Circuit. to review the decision of that court

affirming the conviction of Petitioners which occurred before

the United States District Court for the Northern District of

Georgia

OPINION BELOW

The decision of the Court of Appeals is reported in

United States » Kilrain. et al. 566 F. 2d 979 (Sth Cir. 1978)

and is contained in the Appendix to this Petition atA 1-12.A

timely petition for rehearme was denied on 24 February 1978.

a copy appears in the Appendin at A-13. A stay of mandate has

been ordered by the appeals court for and during these certr

oran proceedings. a copy of the stay is attached and appears i

the Appendix at A - 14.

JURISDICTION

The judgment of the United States Court of Appeals.

Fifth Circuit. was entered on 30 January 1978. Timely Petition

for Rehearing was denied on 24 February 1978. The jurts-

diction of this Court to review the decision of the Court of

Appeals is invoked pursuant to Tithe 28 USC § 1254 (1)

QUESTIONS PRiSENTED

| MAY THE GOVERNMENT WILLFULLY AND INTEN-

MONALLY FAIL AND REFUSE TO COMPLY WITHA

riIMELY AND LAWEUL ORDER OF THE TRIAL

COURT WHICH REQUIRES THE GOVERNMENT TO

PROVIDE. THROUGH A BILL OF PARTICULARS.

1/1 OF THE OVERT ACTS IT INTENDS TO INTRO-

DUCE AT THE TRIAL OF THE CHARGED CON-

SPIRACY. CONSISTENT WITH “DUE PROCESS"

REQUIREMENTS VOUCHSAFED TO THE DEFEN-

DANTS THROUGH THE CONSTITUTION?

. AFTER HAVING WILLFULLY FAILED TO COMPLY

WITH AN ORDER OF THE COURT TO FURNISH ALL

rHE OVERT ACTS THE GOVERNMENT INTENDS TO

RELY UPON IN THE PROSECUTION OF A CON-

SPIRACY CHARGE. MAY THE GOVERNMENT INTRO-

DUCE THERETOFORE UNREVEALED “OVERT

ACTS" WHICH ANTEDATE THE CHARGED CON-

SPIRACY AND ESTABLISH. IF ANYTHING. THE

EXISTENCE OF OTHER CONSPIRACIES HAVING AS

rHEIR ONLY NEXUS THE PACT THAT ONE OR PER-

HAPS TWO OF THE DEFENDANTS ARE COMMON

rO EACH CONSPIRACY. WITHOUT COMMITTING

REVERSIBLE ERROR?

‘se

WHERE ONE DEFENDANT. AFTER ARRAIGNMENT

AND WITH THE FULL KNOWLEDGE OF THE PROSE-

CUTOR. BECAME A PAID-INFORMANT FOR THE

DEA AND SHORTLY THEREAFTER NOT ONLY

LURED ANOTHER OF HIS UNSUSPECTING CO-

DEFENDANTS INTO A MEETING WITH DEA AGENTS

(ACTING UNDERCOVER) DURING WHICH THE

PENDING CASE WAS DISCUSSED. BUT ALSO CON-

TINUED HIS LONG STANDING NEGOTIATIONS

FOR A GUILTY PLEA THROUGH TWO FULL DAYS

OF TRIAL IN WHICH HE SHARED FULLY IN ALL

DEFENSE STRATEGIES AND CONFIDENCES. THEN

ENTERED AGUILTY PLEA AND PROMPTLY BECAME

A GOVERNMENT WITNESS AGAINST THE RE-

MAINING DEFENDANTS IN THE SAME TRIAL. OVER

TIMELY OBJECTION AND MOTION FOR MISTRIAL.

HAVE THE RIGHTS OF THE DEFENDANTS-

PETITIONERS BELEN UNCONSTITUTIONALLY

COMPROMISED”

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT FIVE

No person shall be held to answer for a capital. or otherwise infamous

crime. unless on a presentment or indictment of a Grand Jury. except in

cases arising in the land or naval forces. or in the Militia, when in actual

service in time of War or public danger: nor shall any person be subject for

the same offense to be twice put in jeopardy of lite or limb: nor shall be

compelled in any criminal case to be a witness against himself. nor be

deprived ot life. liberty. or property. without due process of law; nor shall

private property be taken for public use. with just compensation

AMENDMENT SIX

In all criminal prosecutions. the accused shall enjoy the nght to a speedy

and public trial. by an impartial yury of the State and district whereim the

enme shall have been committed. which district shall have been previously

ascertained by law. and to be informed of the nature and cause of the

accusation. to be confronted with the witnesses against him. to have com-

pulsory process for obtaiming witnesses m his favor. and to have the

Assistance of Counse! for his defense

STATEMENT OF THE CASE

A_HISTORY

Petitioners are four individuals of the original eight

named in the indictment [A-15] which was returned on 18

September 1975. in the Northern District of Georgia. That

indictment was laid in two counts, the first charged a con-

spiracy tO, possess maryuana with the intent to distribute it.

the second charged a substantive offense of possessing mari-

juana with the intent to distribute the same. The petitioners

were charged together with one Woodrow Seibert [who was

eliminated from the case at the close of the government's case

by directed judgment of acquittal] and three persons named

Barber. namely. William J. Barber. his wife. Mrs. William J.

Barber and his son. William A. Barber: the two Barber males

were also respectively alleged to be also known as Jack Pruitt

and Bill Pruitt. The latter named was severed from trial with the

others at the opening of the trial. After two full days of trial.

the defendant William J. Barber. pursuant to negotiations with

the government. changed his plea to guilty. Those negotiations

included not only the sentencing of William J. Barber but also

the dismissal of all charges against his wife and son. Thusly. the

four petitioners remained for trial. became convicted. appealed

and the convictions were affirmed.

B_FACTS

Following indictment and arraignment. the defendant

William J. Barber went to the Drug Enforcement Administration

and became a paid informant. Knowledge of this was imparted

to the prosecutor in this case. It was while he was functioning

as an informant that certain agents directed him to arrange a

meeting between those agents and the Defendant Joseph Edward

Kilrain. of course a cover story was developed so as to conceal

from the defendant Joseph Kilrain any knowledge of their true

identity. The defendant-turned-informant complied and caused

such a meeting to occur. The parties at the meeting brought the

conversation to the pending case against the defendant Kilrain

and they discussed it. The agents kept the prosecutor informed

of these curcumstances. The prosecutor as well as the agents

knew that not only had the defendant Kilrain been arraigned

but also that he was represented by counsel. OF course. hits

counsel was not informed of the meeting. During this period of

time the informant had also initiated talks aimed at arriving ata

negotiated plea for himself

During the motion stage prior to trial, the defendants

sought certain information through bill of particulars. Hearme

upon the motion resulted m an order requiring the government

to furnish through particulars a// ot the overt acts which the

government intended to introduce into evidence during the tral,

vod this. together with the date at which the charged conspiracy

came into being. The government in no way objected or remon-

strated to the requirement to supply by particulars a// of the

“overt acts” the government intended to introduce at the tral

and not mentioned in the indictment. The government did

supply a date at which the alleged conspiracy existed. it set

forth “March 1976") The date last mentioned was clearly

spurious since the alleged conspiracy ended with arrest and the

indictment m September. 1975. The government rerer amended

or offered to amend the date or to explain the use of that date

Too. the government never set forth a overt acts in addition

to those mentioned in the indictment itself. those acts embraced

only the period of June 1975 through July of the same year (a

period of some two months)

At the trial the government introduced. over objection,

many. many “overt acts” that Were never Mentioned in any Way

prior to trial) Never did the government. directly or indirectly,

present anything in an effort to excuse or even explain the ab-

sence of any effort to umpart Knowledge of the additional overt

acts to the defense Just as in the appellate court, the govern

ment merely asserted it Was not obliged to comply with the order

The overt acts which were never revealed. embraced

one or more alleged conspiracies that were different than the

one described wn the mdictment and had as their nexus only the

fact that one or perhaps two of the defendants | petitioners

here} were also included i those conspiracies. Further they

related to a distineth earher period of time. namely. 1974.

After two tull days of trial had transpired. and in the

second dav ot which the def cadant-petitioners were turnished.

s

as Jencks material. a report that clearly reflected the defendant

William J. Barber was an informant and had arranged the meeting

between the defendant Joseph Kilrain [Duffy] and the under

cover DEA agents. the informant engaged in turther late-night

negotiations with the prosecutor During the two days of trial,

all defense counsel conferred jointly and their chents partic

pated with them i all the information. contidences and strat-

CLIC.

On the morning of the third day the detendant-

informant William J. Barber entered a negotiated plea of guilty.

His wife and son were dismissed as parties defendant. Later, in

the same trial he testified against the petitioners, despite their

objections which were overruled and their motions for mistrial

which were denied.

The trial ended with each of the petitioners being

found guilty by jury verdict. Appeal and affirmance of the

convictions followed.

REASONS FOR GRANTING THE WRIT

1. The failure and unexplained refusal of

the government to furnish. as a bill ot

particulars. a// of the overt acts it mn

tended to put into evidence at trial as

well as the date the conspiracy first

existed. all as ordered by the tral court

long prior to trial followed by a whole-

sale introduction of previously undis-

closed “overt acts”. over objection,

which completely surprised the petition:

ers at trial. denied them due process and

a fair tral

There is no question but that the petitioners by a

timely motion for bill of particulars sought to require the

government to provide them a complete disclosure of aff the

"overt acts” the government intended to introduce in evidence

bevond those mentioned in the indictment It is equally clear

that the magistrate upon hearing the motion granted that par-

o

ticular sought by the petitioners and required the government

to prompth furnish the petitioners a// ot the overt acts the

vovernment intended to uitraduce a tral. The government

never sought any modification of that order of the District

Judge assigned to the case [Honorable Newell tdenfield |. and

at all times did everything to indicate it would comply with

the order. Ht was also required to furnish the date by which the

charged conspiracy existed. The prosecution nerer set forth any

overt acts in addition to those charged in the indictment: but it

furnished a date. "March 1976") The arrests commenced in

July 1975S and indictment was returned in September 1975 [at

superseded an earher mdictment returned in August 1975]. the

date. therefore. was in effect no date at all

Since vo additional particulars were furnished. nor

Suggested ino any manner whatsoever by the government, the

petitioners rehed upon the tact the prosecution would attempt

to adduce evidence only upon those overt acts contained in the

indictment. The overt acts mentioned in the indictment em-

braced a period of time which had as its earliest date June ot

1975 and ats fatest date July 1975. a period of some two

months. Those overt acts generally. described circumstances

where the petitioners assertedly obtamed maryuana trom the

Barbers in Texas for distribution in and about the Athinta,

Georgia. area during the period last atoresard

Phe trial was presided over not by the Judge to whom

it had been assigned [Honorable Newell bdenfield | and allowed

the order requiring the particulars to remain in force and effect

but rather by a visiting Judge [Honorable Wilbert D.Qwens. Jr |

who had no part im the pretrial orders in the case.

Ar the tnal. the government offered evidence of

numerous “overt acts” which were entirely foreign to the only

overt acts particularized prior to trial The overt acts found mn

the indictment embrace a period of time between June and

July 1978. while “overt acts” offered at the tral related Lo epr

sodes allegedly occurrmg in 1974. The overt acts im the madict-

ment describe circumstances embracing the petitioners con

spiring to receive maryuana trom the Barbers in Texas. while

“overt acts” offered at the trial were of acts where the Petitiones

Joseph [Dutty | Kilram purportedly recened marnuana trom a

person or persons which in no way included the Barbers. ‘n

some imstanees. these previously undisclosed overt acts included

the petitioner Richard Otho Piper. Of course. the petitioner

timely objected to these overt acts but they were admitted over

objection nevertheless

The petitioners were thusly wholly surprised by

“overt acts’ which related to an entirely separate and distinet

conspiracy than the one described in the indictment, [NOTE

the mul/riple conspiracies situation ws fully treated in point

two. mira}.

The Court of Appeals below was squarely presented

these circumstances by the appeal and by its opimion [A-8,

notes 11-13] merely dispatched the issue by asserting the

defendants [petitioners] were not entiticd to the particulars.

However. as authority for its holding it cited United States +

Murray. 527 F. 2d 401. 401 (Sth Cir, 1976) and United States

r Perez, 489 EF. 2d $1. 70-71 ¢Sth Cir, 1973) cert dened

417 US 948 (1974) Those causes are simply not authority for

the government to willfully and intentionally tail and retuse to

comply with a valid order of the court requiring the furnishing

of particulars. In the cases last cited the defendants moved for a

bill of particulars which sought all of the overt acts that the

government intended to use. but the tral court dered rather

than granted the motion and did wor require the government to

set forth the overt acts. On appeal the detendants-appellants

urved error by the trial court having denied the particulars to

the defendants. the appeals court found no error. Vastly differ-

ents the cause sah judicc. tor wt did require the government to

furnish a// the overt acts the government intended to introduce

at trial

Of what value ws a competent defense counsel who

diligentlh pursues his pretrial discovery and obtains an order

requirme particulars trom the government if the government

may without just cause or reason. willfully retuse to comply

and put the defendants to “tmal by ambush’? Willful vie-

lations of discovery rules are not countenanced by the courts.

“tral by ambush" is condemned. United States v Kelly, 420

EF 2d 26 (2nd Cir 1970) Where discovery has been ordered

though not furnished through tmadvertence but) furnished

promptly upon discovery of the inadvertent omission and no

harm to the defendant is demonstrated. reversal is not com-

pelled. United States » Jowner, 494 Fb. 2d S01 (Sth Cir, 1974):

United States » James. 498 BF. 2d 434 Sth Cir, 1974). Even

the court below has earlier said the government cannot with-

hold evidence contrary to an order. it must comply with the

letter and the spirit of the order Prerce » United States, 4\4

f dd 103 ¢Sth Cir 197400 When the previously unrevealed

overt acts Were offered. they came as a complete surprise and

lett the petitioners wholly unprepared to deal with them. The

petitioners Were not offered a continuance to prepare for the

unexpected Compares Crired States» dovce. 499 F. 2d 9

(7th Cir, 1974) The petitioners were compelled to alter their

detense. United States + Padrone, 400°F) 2d $60 Find Cir

1969), during the trial itself. thereby precluding the constr

tutional guarantees afforded a defendant ina criminal case

solely through the willful actions of the government. in direst

violation of a court order.

2. When the vovernment ‘first. willfully

failed to furnish all the overt acts at

intended to introduce at trial as or-

dered prior to trial. the subsequent

introduction of those acts was such

that it tailed to establish the conspir-

ac\ charged and created a circumstance

of the multi-conspiracies condemned

by this court and held reversible error

If the decision of this court announced in Avrtoakos

+ Cmrted States. 328 US 750 (1946) remains viable law. the

cause presented by this petition represents an instance of utter

and irreconcilable conflict: by the decision of the Court of

Appeals

In the Aorredkos case prosecution for a conspiracy

was undertaken by the government. The proofs submitted m

support of the one conspiracy charged estabhisited a number ot

conspiracies that had as their sole common denomimator the

fact that one of the consprutors was common to each and

every of the conspiracies. Thusly. urged the prosecution. it

reflected but a single conspiracy since the objective of cach was

a dike end This court reversed holding the single conspiracy

9)

charged could not be established through proof of multi-

conspiracies with similar objectives though one of the particr

pants was common to cach conspiracy.

In the instant case the indictment and tts overt acts

describes a single conspiracy which included the petitioners

obtaining marijuana trom the three defendants named Barber

in Texas and transporting it for distribution in the Atlanta,

Georgia area: it defines the period as from June through July

1975. When the government surprised the defense with overt

gets additional te those in the indictment and contrary to the

order requiring the government to disclose a// the overt acts it

intended to introduce in trial. those “overt acts” established

precisely what the Aosicakos case condemned. to-wit, multiple

conspiracies. Those previously unrevealed “overt acts’. if any-

thing. tended to show that the defendant Joseph [Dutty]

Kilrain and im some instances the Defendant Richard Otho

Piper did allegedly conspire with other persons [a “Zeke” and

an “Osear" | and others than the Barbers to obtam maryuana

and this was during the vear 1974 and perhaps January 1975.

but not June through July 1975

It need be remembered that those other purported

conspiracies did not attempt to include the petitioners Jo Ann

Davis and Jack Kilrain in any way and only partially embraced

the petitioner Richard Otho Piper. it would appear as harmtul

error to them. United States vy Butler, 494 F. 2d 1246 (10th

Cir. 1974). This variance in proof from the charge in the indict-

ment could only operate to transter guilt. Gated States + Crue.

378 F 2d 408 (Sth Cir, 1973): United States vy Miley, S13 b.

2d 1191 ¢2nd Cir, 1975)

The petitioners were wrongly convicted and that

conviction was affirmed improperly by the appeals court. Com-

pare also: United States y Goss, 329 F. 2d 180 (4th Cir 1963).

Rocha vy United States, 288 F. 2d $45 (9th Cir, 1961), Daily 1

United States, 282 F. 2d 818 e9th Cir. 1960)

3. The use of one defendant as a paidinformart,

who without knowledge on the part of the peti-

tioners. arranged a meeting between DEA agents

(acting under cover) and one of the petitioners

so that they among other things, were able to

discuss the pending case: and, that informant

10

continued negotiations for entry of a guilty plea

with the prosecutor through two full days of

trial where he fully shared in defense strategies

and confidences, only to change his plea and

promptly become a government witness against

the remaining defendants-petitioners, resulted in

unconstitutionally compromising the rights of

petitioners.

Shortly after arrest and arraignment in this case. the

detendant William J. Barber sought out Drug Enforcement

Administration agents and became a paid informant for that

agency. While functioning as an informant. DEA agents had the

informant arrange a meeting between the petitioner Joseph

Edward [Duffy] Kilrain and DEA agents. The latter were acting

in an undercover capacity and concealed their true circum-

stances from the petitioner. The prosecution was informed of

these circumstances and the meeeting as they occurred. During

their meeting the agents discussed the circumstances of the

pending case with the petitioner Duffy Kilrain.

The paid informant also initiated negotiations with

the prosecution in an effort to dispose of his case in a manner

which would satisfy the informant-defendant. The negotiations

were not mutually agreed upon and the informant's activities

as such dwindled off to nothing not too long after he started.

He never formally withdrew from the informant status. they did

not have anything in particular for him te do so it became a

dormant relationship.

Subsequently as trial was to commence the defendant

William A. Barber. the son of William J. Barber stated he was

experiencing problems in his ability to have counsel represent

him. he was severed from the tnal. The witness rule had been

invoked. The defendants did not anticipate in any way being

able to use the defendant William A. Barber as a witness. How-

ever. the government was very adamant in its insistence that he

be made to leave the courtroom. at least indicating thusly the

government may have been considering his use as a witness.

After two full days of tral and when certain Jenck's

materials were furnished the defendants-petitioners. they first

learned the defendant William J. Barber had been functioning

1]

us a paid-informant for the DEA and had arranged the meeting

where the DEA agents discussed the case with petitioner Dulty

Kilram. During the first two days of trial the defendant-intor-

mant Wilham J. Barber participated and indulged in all the

Strategy discussions and confidences which occurred with the

defense. He knew exactly what were deemed weaknesses of the

prosecution by the defense and all of the matters generally

discussed by way of defense. It was late the night of the second

day of trial that the prosecutor finally agreed to the terms the

defendant had been negotiating trom long prior to trial The

terms included the dismissal of charges for his wife and son.

a guilty plea on his part with the government recommending

probation us well as government agreement for immunity for

anv and all other charges he might be subject to. and the

agreement to testify against the remaiming defendants. the

petitioners here.

The government knew as it entered trial that it was

negotiating with the defendant-intormant. It surely knew of

its proots and where the same were weak or required additional

testimony. With the matter of a second trial being necessitated

by reason of the detendant-informant’s son being severed. the

government was ina position to merely sever the detendant-

informant (and perhaps his wife. too) trom the tral with the

petitioners. It would have removed the defendant-informant

who turned government witness trom sharing av additional

defense strategies and contidences and would have removed him

trom the position of having heard all the testimony of the other

witnesses (the rule was invoked and witnesses excluded trom

the courtroom). Since he heard that testimony and knew pre-

eely the defense posture. He was thusly enabled to press his

negotiations by offers to testity upon the weakened points and

the absent points, the points deemed vital to the prosecution.

Since the negotiation resulted in the plea it is obvious the terms

were met. With negotiations continuing to the late night hours.

the entire circumstances of the case from fost/) the prosecution

and defense had to have been discussed. It resulted in a// of the

supphers of the mariuana escaping tral. two being dismissed

and the third receiving probation

There is no way of knowing just how much of the

conversations with co-defendants and their counsel was touched

] ‘

upon. directly or indirectly. and how much of the evidence

leven testimony of the detendant-informant. government

witness} was developed as a result’ of that defendant being

armed with a// of the defense strategies and confidences as well

as the testimony of all the witnesses who preceded him in trial.

See Wearthertord » Burses. LS 97 § Ct. 837 (1977):

Caldwell» Unired States. 92 US. App. D.C. 355, 205 F. 2d

R76 (19530. Conlon + United States. 89 US. App. D.C. 103.

mp Fo Xd 749 COST That detendant-witness at all times

affirmatively asserted himself into all of the comrerences

between petitioners and their counsel gust as counsel between

them and in the presence of their chents discussed the case. The

government could as well have accepted the negotiations for the

plea at the outset of trial rather than two full days into tral,

The strategy appears deliberate. equally as deliberate as the

prosecution's willful refusal to furnish particulars ordered by

the court. Such strategy is only calculated to deprive the

petitioners of the effective assistance of their counsel mi stola-

tion of the Sixth Amendment of the United States Constitution,

The appeals court im an earber opmmion clearly stated that it a

defendant can establish) that a co-defendant was an agent

provocateur. new trial was mandated. Garred States vy Ale

§46 Fo 2d 1259. 1264 ¢Sth Cir, 1977)

It was not the first occasion that the government

made an incursion into the detense That detendant-turned-

witness had ecarher. with the tull Knowledge of the prosecutor,

become a paid-nformant and at the specific request of the DEA

agents he worked under for the government. arranged a meeting

between the petitioner Duffy Kilrain and DEA agents (working

undercover) and thusly discussed the pending case with that

petitioner It was in the absence of his counsel and without

notice to him. Vasyiel » Cnited States, 377 US 201 (1964);

Brewer +) Willams. 430 US (1977) These bold that an ind

vidual against Whom prosecution has commenced has a right to

legal representation when the government interrogates him. it

was not respected in this case but rather deliberately violated

with the tull actual Knowledge of the prosecutor.

The petitioners rights pursuant to the Sixth Amend:

ment have been wrongfully compromised

CONCLUSION

For the reasons set forth above. the petition for

Writ of Certiorari should be...

GRANTED.

Respectfully submitted,

BY:

RAY SANDSTROM of

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale. FL 33301

Tele: (305) 467-6767

| HEREBY CERTIFY that a copy of the foregoing

Petition for Writ of Certiorari has been furnished by mail to

Honorable Wade H. McCree. Jr.. Solicitor General. Department

of Justice. Washington. D.C.. 20530. this 20 March 1978

BY.

RAY SANDSTROM

14

APPENDIX

Opinon and Judgment of the Court of Appeals.

bitth Circo

\-l to A-le

Order deny ing rehearme

A-13

Order saving mandate pending certoran proceedings

\-!4

Indutment

\-}S to ATA

UNITED STATES v. KILRAIN

UNITED STATES of America.

Plaintiff-Appellee.

v.

Joseph Edward KILRAIN. a/k/a Duffy, Jo Ann Davis,

Richard Otho Piper, and Jack Kilrain, a/k/a Jack Hickey and

John Hickey. Defendants-Appellants.

No. 76-3947

United States Court of Appeals.

Fifth Circuit

Jan. 30. 1978

Defendants were convicted in the United States Distnet Court

for the Northem District of Georgia. Wilbur D. Owens, Jr.. J.. of conspiracy

to possess and distribute marijuana and of possession with intent to

distribute. Defendants appealed. and the Court of Appeals. Ainsworth.

Circuit Judge. held that (1) defendants’ Sixth Amendment right to

effective assistance of counsel was not impermissibly compromised by the

fact that federal undercover agents and an informant met with one of the

defendants after he had been indicted: (2) no Sixth Amendment violation

resulted from the fact that the government informant. who had been

indicted with the defendants. was privy to defense strategy during the

first two davs of tral: (3) the affidavit in support of a warrant to search a

motor home sufficiently established the reliability of the informant. (4)

certain errors in the affidavit did not negate probable cause: (5) evidence

was sufficient to support the conviction of one of the defendants for

S\ nopses. Sv labs and Kev Number Classitk ation

COPYRIGHT © 197% by WEST PUBLISHING CO

The Swaopses, Svllab: and Kev Number Classith ation

wstitete mo part of the ap amon of the oourt

A-!

UNITED STATES v. KILRAIN

conspiracy and tor aiding and abetting: (6) an alleged speedy trial violation

did not warrant dismussal. (7) the fact that the bill of particulars turmshed

by the Government did not imelude all evert acts which the prosecution

imtroduced at tral was net error, and (8) any error that might have been

committed m connection with the Government's tailure to disclose notes

of government agents orm connection with the tral court's restrictions on

questioning and closing remarks was harmless bevond a reasonable doubt.

Aftirmed

1. Criminal Law 1169.12

Not every imterrogation im violation of exclusionary rule for

statements obtamed as a result of an interrogation conducted after indict

ment and without the presence of defendant's counsel mandates reversal

ofa conviction

2. Criminal Law 412.44)

Where undercover agents and government imftormant whe

conversed with detendant after he had been mdicted did not testity at

trat * to the substance of those discussions and im absence of amy

demonstration that any of the Government's evidence was obtamed as 2

result of the comverstions with defendant. conversations did not give rise

to anv evidence subjec’ to exclusionary rule for statements obtamed as a

result of a post-andictment interrogation conducted without the presence

of defendant's counsel and. therefore. no Sixth Amendment nights were

violated by fact that federal undercover agents and an informant met with

defendant atter he had been indicted and discussed. among other things.

the approaching trial of maryuana conspiracy case Comprehensive Drug

Abuse Prevention and Control Act of 1970. §§ 401. 406. 21 USCA

§§ 84) Sto LU SC AConst Amend 6

3. Criminal Law 641.11)

Detendants charged with conspiracy to possess and distribute

manana were not deprived of then Sixth Amendment night te the

effective assistance of counsel by tact that government informant whe had

been indicted with defendants stood tral with them for four days before

pleading guilty and becomme a government witness. under all cucum-

stances includmg fact that the mtormant had ceased operating as a

government mfionmant well before tral began and apparently did not

communmecate any knowledge of defense strategy to the Government.

fact that mfonmant was privy to defense strategy for the first two days of

tral did not violate the Sinth Amendment Comprehensive Drug Abuse

Prevention and Control Act of 1970. §§ 401. 4060, 21 USCA §§ 841.

R46 USC A Const: Amend ©

UNITED STATES v. KILRAIN

4. Searches and Seizures 3.6(3)

Where affidavit in support of search warrant was made by a

government agent based on information received from anvther govern-

ment agent who in turn was given the information by a confidential

informant. affidavit stating that the informant had within the preceding

30 days provided information on at least six occasions to the second

government agent and that the agent had personally verified the infor-

mation and stating that the informant had provided a certain telephone

number and that the number had been traced and found to be located

at address where agents discovered a motor home which the informant

had described fully satisfied the requirement that affidavit in support

of search warrant establish the reliability of an ntormant.

5. Searches and Seizures 3.6(2)

Misrepresentations in affidavits as to facts that are material to

the establishment of probable cause for search negate probable cause if

such misrepresentations are negligent or deliberate on the part of the affiant.

6. Drugs and Narcotics 188

In absence of any suggestion that there was deliberate misrepre-

sentation. errors found in affidavit in support of search warrant did not

negate probable cause where errors concerned the identity of the driver

and the exact amount of manjuana in motor home for which search

warrant was sought

7. Drugs and Narcotics 183

Neither the exact amount of marijuana nor the name of the

driver is necessary for probable cause to search a vehicle claimed to

contam marijuana

8. Criminal Law 1144.13(3)

On appeal from conviction. Court of Appeals must consider

evidence in light most favorable to Government

9. Conspiracy 4712)

Drugs and Narcotics 123

In prosecution for conspiracy to possess and distnbute man-

juana and possession with intent to distribute, evidence that defendant had

previously knowingly received and delivered payments for marijuana trans-

actions, that telephone calls regarding marijuana purchases were made and

received at her home and some were received by her. that motor home

containing marijuana was parked outside her apartment on the day it was

searched and that co<onspirators used defendant's apartment to await the

arrival of the marijuana was sufficient to support convictions for con-

A-3

UNITED STATES v. KILRAIN

spiracy and for aiding and abetting the possession of manyuana Compre

hensive Drug Abuse Prevention and Control Act of 1970. §§ 401, 406.

“TL SCA $8 S41 S40

10. Criminal Law 57641)

Dismissal for violation of speedy tral rules is not required

where delay is munimal and ne propudice resulted

11. Indictment and Information 1214

In narcetics Conspiracy prosecution. noe error resulted from

tact that bill of particulars turmshed by Government did not melude all

overt acts which the prosecution mtroduced at trial: detendants were not

entitled to discover all the overt acts that might be proved at tral, Com-

prehensive Drug Abuse Prevention and Control Act of 1970. §§ 401.

46 21 USCA SES41. S40

12. Indictment and Information 121.107)

A detendant should not use the bill of particulars to obtam a

detailed disclosure of the Government's evidence prior to tral

13. Criminal Law 11671)

Fact that bill of particulars contained typographical mistake m

that at stated that the conspiracy existed by March, 1976. while Govern.

ment m tact had seized the maryuana mm the summer of 1975 was not a

source of reversible error Comprehensive Drug Abuse Prevention and

Control Act of 1970. §§ 401. 406.21 USCA §§ 841. 840

14. Criminal Law hoe dy. PETE W2) PETE SOT)

Where Government's proot was espectally strong m= that i

meluded seved contraband and testimony of two participants momar

jana conspiracy. any error that might have been committed im con-

nection with tailure to disclose rough notes of government agents or by

reason oof taal court's rulings on questioning and closing remarks was

harmless error bevond a reasonable doubt. 18 USCA. § 3500

15 Costs 317

Where detendant admitted to the court that he could “handle”

$50 a month in addition to his current debts. order that defendant pay a

portion of the cost of copying the Crinsenpt was net improper

UNITED STATES v. KILRAIN

Appeal trom the Unites States District Court for the Northem

District of Georgia

Betore APNSWORTHL SIMPSON and MORGAN. Circun

Judges

AINSWORTH Circuit Judge

Detendants Joseph bdward Kilrain. Jack Kilram, Jo Ann Davis and

Richard Otho Piper were convicted of conspiracy to possess and distribute

manjuana m violation of 21 U.S.C. § 846. All the detendants. except

Jack Kilrain. were also convicted of possession with intent to distnbute

under 21 USC. § 841. Detendants seek reversal on the basis that their

Sirth Amendment mght to effective assistance of counsel was impermis-

sibly compromised when federal undercover agents and an informant met

with detendant Joseph Kalra (herematter Kilrain) after he had been

indicted. Kalra. the imformant and the agents discussed. among other

things. the approaching tnal of this case A Sixth Amendment violation

is also clammed on the ground that the government informant had been

madicted with the defendants. and stood tnal with them for tour davs

betore pleading euilty and becoming a government witness. Detendants

also contest the validity of the search warrant. arguing that the affidavits

supporting the warrant contamed incorrect statements. Third, detendant

Davis urges that the evidence was isufficient to support her convictions.

The tourth contention concerns an alleged failure to comply with the

distmet court's Speedy Trial Plan’ binally. detendants claim that certam

deficrencies im the Bill of Particulars. in supplying matenals in comphance

with the Jencks Act. and im limiting cross-cxamination of a crucial govern.

ment witness mandate reversal We affirm

Wilham J. Barber. his wite and his son were indicted along with the

defendants. Soon after the indictment Barber volunteered to become a

paid informant tor the Drug Entorcement Administration (DEAD Nothing

was said to Barber regarding imtorming on the defendants im this case.

Atter Barber became an intormant. detendant Kilrain telephoned him

conceming the purchase of additional narcotics. Barber and Kalram had

several meetings at which DEA undercover agents were also present. At

these meetings Kilrain, Barbe: and the svents discussed future drug trans.

actions. Kilrain’s desire to have the member of the conspiracy who had

intormed the DEA killed. and the torthcoming tral of Barber and Kilram

Soon after these meetings Barber ceased to be an informant. Barber

unsuccessfully negotiated with the prosecution for a plea bargain betore

trial. Two davs after the trai began. and after the tact that he had been

an informant had been disclosed, Barber decided to plead guilty. The

charges against his wife and son were then dismussed. Barber testified at

tral but did not relate any of the conversations at the meetings with

4-8

UNITED STATES v. KILRAIN

Kilrain when Barber was a paid intormant !

Defendants contend that the conversations between Kilrain, Barber

and the undercover agents regarding the impending trial without the

presence of Kilrain’s attorney violated the Sixth Amendment. Reliance

is placed on the Supreme Court's decisions in Massiah v. United States,

377 US. 201. 84 $.Ct.1199. 12 L.Ed.2d 246 (1964) and Brewer y.

Williams, 430 U.S. 387. 97 S.Ct. 1232. 51 L.Ed.2d 424 (1977). where

the Court held that post-indictment interrogation of a defendant without

the presence of counsel was unconstitutional. The second point of deten-

dants’ analysis concerns the presence of Barbcr amongst the defendants

and their counsel during the first two days of trial. Defendants insist that

they suffered a deprivation of the Sixth Amendment right to the effective

assistance of counsel on account of Barber being privy to the defense

strategy and his subsequent cooperation with the prosecution,

{1.2} In Massiah and Brewer the Supreme Court established an ex.

clusionary rule for statements obtained as a result of an interrogation

conducted after indictment and without the presence of defendant's

counsel 2? The present case is distinguishable from the situation in Massia/

and Brewer The agents and the informant who conversed with Kilrain

did not testify at the trial as to the substance of those discussions, and

defendants have not demonstrated that any of the prosecution @PMidence

was obtained as a result of the conversations with Kilrain. Not every

interrogation in violation of the rule set forth in Massiah and Brewer

wandates reversal of a conviction 3 Unlike the cited cases, there is no

evidence to exclude in the present case. and no prejudice has been shown

by the defendants.

1. Barbe did reveal some of the substance of the conversations during the ball

revocat on hearing. Barber had heard Kilrain threaten the lite of an intormant

and express the possibility of fhght trom justice, However, this testimony is not

relevant to the issue on appeal. as it was not presented m the Government's cas

against the detendants

2. See Brewer Williams 430 US 387. 97 S.Ct. 1232. 1240. 51 L.Ed.2d 414

1977 “the clear rule of Mascrah ws that once adversary proc cedings have Ommene ed

against an indwidual. he has a mght to legal representation when the government

interrogates him

4. See United States vo Havles, 3 Cur. 471 F.2d 788. 793, cert. denied, 411 U.S.

969 93S Cr 2159. % L.Ed.2d 690 1973 ‘assuring arguendo that tapes were

mtroduced im evidence mm violation of Masciak. admission was harmless beyond a

reasonable doubt

Ct Brewer > Williams 4480 U.S 387.97 §.Ce. 1232. 1243 nm. 12. 51 L.Ed.2d 424,

where the Court recognized that the proper rule was one of exclusion of tainted

evidence rather than a per ce standard of reversal tf any constitutional violation

had occurred

A

UNITED STATES v. KILRAIN

[3] Detendants: other Sith Amendment argument ts equally meritless.

The purported impropriety ts that Barber. who had previously been a

paid informant, and who subsequently pleaded guilty and testified against

the defendants, was privy to detense strategy for the first two days of trial.

It must be remembered that the evidence indicated that Barber had ceased

operating as a government informant well before trial began. The evidence

also showed that Barber had unsuccesstully negotiated with the prose-

cution for a plea bargam before tral. Defendants rely heavily on several

cases involving a government informant who intrudes on or overhears

conversations between a defendant and his counsel. See United States v-

Klein. & Cw. 1977, $46 b.2d 1259, 1204 (suggesting in dicta that it

342 US 926. 72.8 Cr. 363. 96 L.bd 690 (1952). and Caldwell v. United

States. 1953. 92 US. App. DC. 358, 208 F.2d 879. cert denied, 349 US

930 78 SCt 773, 99 Lied 1260 (1955) (condemning intrusions on

attormesy-chent conversations by wiretapping and secret agents)? This ts

not such a case. There is ne evidence that Barber was an informant when

he was a defendant dunng the first two days of thal. This is not an

instance Of Knowing IMtruston on the attorney-client relation by the

Government. but rather an independent decision by a codetendant

to change his plea to guilty © In any case. defendants have not demon-

4 Thy Al. ’ a “wit den id a » teow das . by Teor i ‘ ath rfomd + Hruerse \ *4$29 \ Ss

544 O97 St MS 41) Fd td tO 1 whieh held that m a stmthar sttuatnen

pow oly tag wan nndore owes codetendant. th detendant must Gemronstrate propudia.

or at the wery least. recerpt ot the umeot stitutronalls acquired evidence by thie

(covernmment. See mote SB. ntea As the Alou court data regarding the possabrlity

vf colhats ral attack «of th. rN ta Peet dud tert pe de the tater of propudies t

must be Comsdered o vers weak precedent mdeed

S Both Coplon and Caldwell roled on statements Glasser ve Cotte States, 31>

tS a 7476 62 St 447. 467 OR, 86 L.Ed GRO) 1942 , to the effect that me

propdtes need be shown omc a vroletron af the ¢ onstitutional might to eftfoetivs

aistarmes of Counsethas boon demonstrateds As Glasser mvelved the fundamental

ane of am attormes 's conflicting lowalties. it should mot be taken as establishing 4

general mle agamst demanding prow! of use or prowidkee In an agent provocateur

case, See Weathertond © Bury 4290S 345 O7 SCt BIT B42 43. 451 L.Ed 2d

wy 61077) wher the Court wemed te reqwet Cauldwell and Coplon, dis Lanning

thet wt had adupred the reasanmg of those two cases 1 Moffta re Lurted State

MS US 203 BT SOr SOR, 17 L Bd 2d 374 1966. The Court explained that m

Hoffa w had merely assumed thy validony ot Caples and CaldiedTT tor the purpers

oft demonstrating that Paetta so Lane woe ld met oven be protes te d under those twe

a

ry Of CL eeeteand Stan Alon cw. 1977 £46 8 3a 12459. 1264, where the Court

i

nuterated the tac ters roaumed te Misttts a sever ams womew trial. and yn lade d

how cdr com the put of the Ceoworniment thor the coe dete ndant was an mbortant

oor atc net pytemwete at

4.7

UNITED STATES v. KILRAIN

strated any actual prejudice resulting trom Barber's supposed knowledge

of defense strategy. or that Barber communicated such knowledge to the

Government? The Supreme Court has recently held that when an agent

posing as a defendant in order to preserve his cover meets with a defendant

and his counsel and discussed the forthcoming tral, and detendant

demonstrates neither prejudice nor receipt of such confidential infor

mation bv the Government. there 1s noe violation of the Sixth Amendment

as applied to the states by the Fourteenth Amendment. and relict under

47 USC. § 198 is not warranted. See Weatherford v. Bursev, 429 US.

$45.97 $.Ct 837 841-42. 845, 81 Led 2d 304197778

The next question ts whether the affidavits submitted to the magistrate

supported issuance of the search warrant for the motor home im which the

mariwuana was found. Defendants Joseph Kilram, Davis and Piper appeal

the denial of their motion to quash the search warrant and to suppress the

evidence seived during the search Defendants claim that the search warrant

was mnproperly issued because the rehability of the miormant had not

been established? and that the affidavits supporting the warrant contamed

maternal errors We find neither contention meritorious

\ Weathertont « Brrsey 470 tS 445. O7 SO B37, B44, 51 L.Ed Ay)

77 “Pay teow dk “. belvowe thot Perse HE bers will he se prt crite far Ihe cor thee

dit tic ulties of prot so great that we must always asserne thet ody Chat an me heeren al

commmumneatos what be bears treme am cmcemmter woth thy detendant and hos

commscd. bert adse that what be comme ates base the prerts nityol ter de troment

ter the dete nada om bens fit ter thee PrParsea THT OME S Cas

S Whe ower declared that “when comvorsatrans wath Coutsel have beon owerln ard

the commstetutnomablty of the comwvsction de ponds on whether the owerheard con

versations huwe produced. dwrecth or mdarecth. amy of the evidence offered at

trial Thos ws 4 tar cry trom the per a cole aenowneced by the Court of Appeals

below tor under that role tral promdae te the defendant ts doomed wrelevant

hd YT SOc at B42

Th. Court went on te suggest mrore spect st mdards te determine whether

premdac has resulted trom the Govermment > retrasion om the attorney otnont

clatwonstap The Court mentioned several tacters that would gwe a detendant “a

meh stromag Case | Lostamemy as to the Comtont of atlormey « hort Comer Sa trOns

whether prosecution evider oo orgmatod to the Commorsatienns ot the Conmwersatinen

were moons other way used te the substantial detrmment of the detendant. and

even whether the Government had heared the details of a conversation about tral

mreparateoms bd OTS Ct at B48

Venda jovas VRULS. 10K 8484 098 1) ¢ Pd Md 728.1904). ostablshed

, twee prego stundurd ter ovabuaterg the suttt tomes ot attidas its comcormag thy

Jatoment.otertermants boost the attdase mest ser terth the underhy mg omen

ramos that saeert the roqeasee bath degree ef sepspyn neon Second. the woderlving

CEES the weadn oterg tho polobebes ot he eter ant must be green

A-S

UNITED STATES 5. KILRAIN

[4] The affidavit was made by a government agent in Georgia, and was

based on information recered from another government agent in Texas

who in tum was given the mformation by a confidential informant. The

affidavit stated that the informant had within the preceding thirty days

provided information on at least six occasions to the government agent in

Texas. and that the agent had personally verified the accuracy of such

intormation In addition the affidavit stated that the informant had given

a telephone number m Atlanta. and that the number had been traced and

found to be located at the address where government agents discovered

the motor home which the informant had desenbed. Thus, the require-

ment of establishing the reliability of the mformant in the affidavit: was

fully satisfied

[5-7] The errors in the affidavit are of a relatively trivial character. and

despite them there was still probable cause to support issuance of the

warrant. Misrepresentations in affidavits as to facts that are material to the

establishment of probable cause will negate probable cause if such mis-

representations are negligent. see United States vy Astrogf, 5 Cir. 1977,

$S$@ F.2d 1369, 1372-74 (rehearing en bane granted. 5 Cu., 564 F.2d

199). or af the misrepresentation is deliberate on the part of the affiant,

see Umted States vy Thomas, 5 Cit. 1973, 489 F.2d 664, 668-69. cert.

demed, 423 US. 844. 96 $.C1 79. 46 L.Fd.2d 64 (1975). These problems

do not exist in the present case. The exact amount of marijuana in the

motor home and the identity of the driver are the only two musrepre-

sentations at stake here. Neither the exact amount of manyuana nor the

name of the driver is necessary for probable cause to search a vehicle

clamed to contain marijuana There is no suggestion that there was

deliberate musrepresentation

[8.9] Defendant Davis claims that the evidence was insufficient To

support her convictions for conspiracy and for aiding and abetting In

reviewing the evidence. we must consider it in the hight most favorable

to the Government. see Glasser v United States, 315 US. 60. 80. 62

SCt 457. 409. 86 L.Ed 680 (1942) The evidence of conspiracy and

aiding and abetting the possession of manjuana with the intent to dis:

tribute is ample m the case of defendant Davis. She was defendant

Piper's paramour, and had previously knowingly received and delivered

payments for manjuana transactions. im one instance marking the debt

pan ma book Telephone calls regarding marijuana purchases were made

and received at Davis’ home. and some were received by her. The motor

AO

UNITED STATES v. KILRAIN

home contaming the maryuana was parked outside her apartment on the

day it was searched) The prosecution's informer testified that Davis had

4 pound of marjuana in her apartment, and that the conspirators used

her apartment to await the arrival of the marijuana, Under the circum.

stances. the jury properly could have found that Davis was part of the

conspiracy along with her lover Piper. and that Davis aided and abetted

Piper's possession of marijuana with the imtent to distribute.

{10} tiamediately prior te trial the defendants moved fer a discharge

on the ground of demal of speedy tral) The onginal indictment was

returned on August 12) 1975. and was superseded by a nearly identical

indictment on September 18. 1975. The trial began on September 13.

1976. Trial was orginally scheduled for duly 1976, but the defendants

requested a continuance until August 23. 1976. Defendants argue that the

applicable Speedy Trial Plain of the district court required trial of the

conspiracy count within one year. and the possession count within 180

davs) The Government rephes that the Speedy Trial Plan relied on by

defendants was superseded by a new plan effective July 1, 1976, and that

the trial was timely under the new plan We need not decide which plan

should apply. as defendants have not suggested that prejudice has resulted

from thal approximately one year after indictment, Dismissal is not

required where delay ts ouinimal and no prejudice has resulted. See United

States vy Garcia. & Cu., 1977, S883 Bd 432: United States v. Wvers, 5

Cir. 1977. S46 F.2d $99, 602. United States v Maizumi, 5 Cir. 1870.

33 Pod S48. S51. United States vo Clendening, § Cu, 1976, 520 F

2d 842

[11-13] Detendants contend that the Bill of Particulars furnished by

the Government did not include all of the overt acts which the prose:

cution introduced at tnal This was not error as defendants are not

entitled to discover all the overt gets that might be proved at tral. sec

United States v Murray, & Cu 1970, 327 F.2d 401. 411 A defendant

should not use the Bill of Particulars to “obtam a detailed disclosure of the

government's evidence prior to trial.” see United States v. Peres. 8 Ci.

1973. 489 b 2d S51. 70-71. cert denied, 417 US. 948. 94 S.Ct. 3007.

41 L bd 2d 664 (1974). Defendants have also pomted out an error in the

Bill of Particulars: The Bill of Particulars stated that the conspiracy existed

by March 1976 However. the Government seized the manjuana in the

summer of 1975) This obvious typographical mistake cannot seriously be

considered a source of reversible error

A-10

UNITED STATES v. KILRAIN

[14] Finally. defendants raise several minor issues which they contend

mandate reversal The rough notes of the government agents were not

furnished as Jencks Act materials, nor were all the Jencks Act materials

turmished the night before a witness was to testify. as the Government had

promised In addition. detendants asserted that the trial court improperly

restricted questioning and closing remarks, and allowed expansive answers

and leading questions. The Government's proof in this case was especially

strong. as it included the seized contraband and the testimony of two

participants. Thus, whatever error urged py the defendants that might have

heen committed by the tral court was certainly harmless beyond a reason-

able doubt. See Chapman v Calitornia, 380 US. 18. 87 S.Ct. 824. 17 L.

bd 2d 705 (1967)

{15} Detendant Jack Kilram complains that he should not have been

ordered to pay a portion of the cost of copying the transenpt, as he was

shown to be indigent. This contention is rebutted by Kilraimn’s admission

to the court that he could “handle” fifty dollars a month in addition to his

current debts

AFFIRMED

Adm. Office US Courts West Publishing Company . Saint Paul, Minn

United States Court of Appeals

POR THE PIP THE CIRCUTE

7

No 70-3947

DC Docket No. CR-75-4030A)

UNITED STATES OF AMERICA,

Plantitt-Appellee.

Versus

JOSEPH EDWARD KILRAIN, aka Dufty. JO ANN DAVIS,

RICHARD OTHO PIPER. JACK KILRAIN., ak a Jack Hickey

and John Hickey.

Detendants-Appellants.

Ippeals trom the United States District Court for the

Norther District of Georgia

Betore AINSWORTH. SIMPSON and MORGAN, Circuit Judges.

JUDGMENi

Phis cause came on to be heard on the transerpt of

the record from the United States District Court for the Nor-

thern District of Georgia. and was argued by counsel.

ON CONSIDERATION WHEREOE. It ts now here

ordered and adjudged by this Court that the judgment of the

suid District Court in this cause be. and the same ts hereby.

affirmed,

January 30. 1978

ISSLED AS MANDATI

A-1l2

United States Court of Appeals

FIFTH CIRCUIT

TEL 504-589-6514

EDWARD W WADSWORTH OFFICE OF THE CLERK 600 CAMP STREET

CLERK February 24 1978 NEW ORLEANS, LA 70150

rO ALL PARTIES LISTED BELOW

No. 76-3947 - U.S.A. v. JOSEPH EDWARD KILRAIN,

ET AL.

Dear Counsel

This is to advise that an o. der has this day been entered denying

the petition’ » for ~shearing.** and no member of the panel

nor Judge in regular active service on the Court having requested

that the Court be polled on rehearing en bane (Rule 35. Federal

Rules of Appellate Procedure: Local Fitth Circuit Rule 12) the

petitiont ) for rehearing en bane has also been denied

See Rule 41. Federal Rules of Appellate Procedure for issuance

and stay of the mandate

Very truly vours.

EDWARD W. WADSWORTH. Clerk

Ry s Brenda M Hanck

Deputy Clerk

**on behalt of the appellants

binh

ce Mr. Ray Sandstrom

Mr. Robert Ho McKnight. Jr

A-13

IN THE UNITED STATES COURT OF APPLALS

FOR THE FIFTH CIRCUIT

U S$ COURT OF APPEALS

FILED

FEB 28 1978

EDWARD W WADSWORTH

CLERK

NO 76-3947

UNITED STATES OF AMERICA,

Plantitt-Appellee.

versus

JOSEPH EDWARD KILRAIN. a k a Dutty. JO ANN DAVIS.

RICHARD OTHO PIPER. JACK KILRAIN. a k a Jack Hickey

and John Hickey.

Defendants-Appellants

Appeals from the United States District Court for the Northern

Distnet of Georgia

ORDER

iX) The motion of APPELLANTS

for stay of the issuance of the mandate pending petition tor

writ of certiorari is GRANTED to and including March 20, 1978

the stay to continue in torce until the tinal disposition of the

case by the Supreme Court. provided that within the period

above mentioned there shall be filed with the Clerk of this

Court the certificate of the Clerk of the Supreme Court that the

certioran petition has been filed. The Clerk shall issue the

mandate upon the filing of a copy of an order of the Supreme

Court denying the writ. or upon the expiration of the stay

granted herein. unless the above mentioned certificate shall be

filed with the Clerk of this Court within that time.

s Robert A. Ainsworth. Jr

UNITED STATES CIRCUIT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FORT THE NORTHERN DISTRICT OF GEORGIA

FILED IN OPEN COURT

, ’ i 9-18-75

ATLANTA DIVISION BEN H. CARTER. Clerk

BY: /s/ JM

UNITED STATES OF AMERICA Deputy Clerk

CRIMINAL INDICTMENT

vs

NO. CR 75-403 - A

JOSEPH EDWARD KILRAIN

AKADUFFY.

JACK KILRAIN

AK A JACK HICKEY.

AK A JOHN HICKEY.

RICHARD OTHO PIPER.

JO ANN DAVIS.

WILLIAM J. BARBER

AK A JACK PRUITT.

AK A POP,

MRS. WILLIAM J. BARBER.

AK A MOM.

WILLIAM A BARBER.

AK ABILL PRUITT

WOODROW SEIBERT.

AK A WOODY

THE GRAND JURY CHARGES

COUNT ONE

That. from on or about June 1975. to on or about

July 21. 1975. wm the Northern District of Georgia and clse-

where. JOSEPH EDWARD KILRAIN., also known as DUEEY.

JACK KILRAIN. also known as JACK HICKEY. also Known as

JOHN HICKEY. RICHARD OTHO PIPER. JO ANN DAVIS.

WILLIAM J. BARBER. also known as JACK PRUETT. also

known as POP. MRS. WILLIAM J. BARBER. also known as

MOM. WILLIAM A. BARBER. also known as BILL PRUITT.

and WOODROW A) SEIBERT. also Known as WOODY | did

A-15

willfully and unlawfully combine. conspire. confederate and

agree and have a tacit understanding with one another and with

other persons whose names are to the Grand Jurors unknown.

that they would commit an offense against the laws of the

United States: that is. that they would unlawtully possess with

the intent to distribute and distrubute maryuana. a Schedule |

controlled substance. in violation of Tithe 21. United States

Code. Section 841(a) (1) and said conspiracy being in violation

of Title 21. United States Code. Section 846.

It was the plan and purpose of the conspiracy that

JOSEPH EDWARD KILRAIN. also known as DUFFY.

WILLIAM J. BARBER. also known as JACK PRUITT. also

known as POP. MRS. WILLIAM J. BARBER. also Known as

MOM. WILLIAM A. BARBER. also known as BILL PRUITT.

and others. would obtain and make available tor distribution

marijuana. a Schedule | controlled substance.

It was further a part of the plan and conspiracy that

JACK KILRAIN. also known as JACK HICKEY. also known as

JOHN HICKEY. and others would transport from the San

Antonio. Texas. area to Atlanta. Georgia. the aforesaid mar-

juana tor distribution.

And it was further a part of the plan and conspiracy

that JOSEPH EDWARD KILRAIN. also known as DUFFY.

JO ANN DAVIS. and others. would assist in the distribution of

the aforesaid maryuana.

And it was further a part of the plan and conspiracy

that RICHARD OTHO PIPER and WOODROW A. SEIBERT.

also known as WOODY. and others. would and did distribute

the aforesaid marijuana in the Atlanta. Georgia. area.

OVERT ACTS

in furtherance of the conspiracy and to effect the

objects thereof. the defendants committed numerous acts

within the Northern Disirict of Georgia and elsewhere. in-

cluding. but not hmited to. the following:

1. About and during June and July, 1975. WILLIAM

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1 BARBER. alo known as JACK PRUTTET. also known as

POP. WILLIAM A) BARBER. also known as BILL PRUTTT,

JOSLPH EDWARD KILRAIN. also Known ay DUFFY. and

WOODROW A. SLEIBERTE. also Known as WOODY. assisted

by JO ANN DAVIS. made numerous ichephone calls to cach

other

About and during June 1975. WILLIAM) J.

BARBER. also known as JACK PRUITT. also Known as POP,

traveled from Texas to Athinta. Georgia. to meet with JOSEPH

EDWARD KILRAIN. also Known as DUFFY.

3 On or about July 8. 1975. WILLIAM J. BARBER.

also known as JACK PRUITT. also Known as POP, obtained

citizen band radios to be used during the transportation of the

aforesaid marijuana from the San Antomo. Texas. urea to

Athinta. Georgi

4 On or about July 19. 1975. JOSEPH EDWARD

KILRAIN. also Known as DUPPY. and JACK KILRAIN., also

Known as JACK HICKEY. also known as JOHN HICKEY.

traveled from Atlanta. Georgia. to the ranch of WILLIAM J

BARBER. also known as JACK PRUITT. also known as POP,

near Segum. Pexas

$ On of about July 19. 1975. WILLIAM J. BAR-

BER. also known as JACK PRUTTT. also known as POP.

MRS WILLIAM | BARBER. also known as MOM. WILLIAM

A BARBER. also known as BILL PRUETT. JOSEPH EDWARD

KILRAIN. also known as DUPEY. JACK KRILRAIN,. also

known as JACK HICKEY. also Known as JOHN HICKEY. and

others met at WILLIAM J. BARBER’'S ranch near Seguin,

Pexas. to weigh and load the aforesaid maryuana ito a 25 toot

Cobra Motor Home which was then under the control of

JOSEPH EDWARD KILRAIN

© On or about July 21. 1975 JACK KILRAIN.

also known as JACK HICKEY. also Known as JOHN HICKEY.

and others. drove the aforesaid Cobra Motor Home trom the

Sevuin. Texas. area to Athinta. Georgta

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7. On or about July 21, 1975. RICHARD OTHO

PIPER had control of the aforesaid Cobra Motor Home at the

Woodlake Apartment Complex. the residence of JO ANN

DAVIS.

8. On or about July 21. 1975, RICHARD OTHO

PIPER, assisted by JOSEPH EDWARD KILRAIN., also known

as DUFFY, WOODROW A. SEIBERT. also known as WOODY .

and others did distribute the aforesaid marijuana in the Atlanta.

Georgia, area.

COUNT TWO

That, on or about the 21st day of July, 1975. in the

Northern District of Georgia, RICHARD OTHO PIPER. aided

and abetted by JOSEPH EDWARD KILRAIN. also known as

DUFFY, JO ANN DAVIS, WOODROW A. SEIBERT. also

known as WOODY. and others, did knowingly. intentionally

and unlawfully possess with intent to distribute approximately

110 pounds. gross weight, of marijuana, a Schedule | con-

trolled substance. in violation of Title 21, United States Code.

Section 841(a) (1).

A True BILL

s Charles R. Bryan

FOREMAN

s John W. Stokes. Jr.

JOHN W. STOKES, JR.

UNITED STATES ATTORNEY

s' Robert H. McKnight. Jr.

ROBERT H. McKNIGHT. JR

ASSISTANT UNITED STATES ATTORNEY