Opposition — Harelson v. United States

Suoreme ¢ =f

Supreme Court, U.S \

a a -_

FILED

JAN 8 1979

ee

—

Nos. 78-591, 78-638, 78-769

ee RODAK, JR., CLERK |

Iu the Supreme Court of the Unite —

OCTOBER TERM, 1978

BRENT HARELSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

DENNIS L. LIPPER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

CHARLES A. JOHNSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ROBERT J. ERICKSON

MARSHALL TAMOR GOLDING

Attorneys

Department of Justice

Washington, D.C. 20530

Page

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SE ek ee 3

Questions presented ....................-..c--ec--eeseeeeeneees 2

RESEND CRS DS CEE 3

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CITATIONS

Cases:

Anderson v. United States, 417 U.S. 211.. 13

Dutton v. Evans, 400 U.S. 74 -00022222222........ 13

Ewing v. United States, 386 F.2d 10,

cert. denied, 390 U.S. 991-2002... 10

Fiswick v. United States, 329 U.S. 211.... 9

Harms v. United States, 272 F.2d 478...... 10

Jeffers v. United States, 482 U.S. 187...... 4

Nash v. United States, 229 U.S. 373 -....... 9

Singer v. United States, 323 U.S. 338 -..... 9

Singer v. United States, 208 F.2d 477 ...... 10

United States v. Alejandro, 527 F.2d 423,

cert. denied, 426 U.S. 923 —......002022.2....- 15

United States v. Alfonso, 552 F.2d 605,

cert. denied, 484 U.S. 857 -........-........... 15

United States v. Almada-Aldama, 462

RE A ee 12

United States v. Bermudez, 526 F.2d 89,

cert. denied, 425 U.S. 970 -........--00....... 9,12

United States v. Bolts, 558 F.2d 316 ........ 12

United States v. Burts, 536 F.2d 1140,

cert. denied, 429 U.S. 1044 ~... 10

Cases—Continued Page

United States v. DeJesus, 520 F.2d 298,

cert. denied, 423 U.S. 865 -.......222200........ 9

United States v. Dreyer, 5383 F.2d 112 .... 9

United States v. Horton, 526 F.2d 884 .... 15

United States v. Hutchinson, 488 F.2d

MN eh acetidenictastenie Sains © ddisbaichamsens 10

United States v. King, 521 F.?u 61 .......... 9

United States v. Nakaladski, 481 F.2d

289, cert. denied, 414 U.S. 1064 _......... 15

United States v. Nixon, 418 U.S. 683 ...... 13

United States v. Palacios, 556 F.2d 1359.. 10

United States v. Rivero, 532 F.2d 450...... 16

United States v. Umentum, 547 F.2d 987,

cert. denied, 480 U.S. 983-00... 10

United States v. Viglia, 549 F.2d 335 _..... 12

United States v. Warner, 441 F.2d 821.... 12

United States v. Williams, 503 F.2d 50.... 10

Constitution, statutes and rules:

United States Constitution:

Fifth Amendment .............................. 15

Sixth Amendment ......0..00.00000000.00...... 2,13

le 8,9

SL SR Pee 3, 4, 18, 14, 16

BAU, MPR ID ccvicstcxnscnecnccnentncnnseuectcectane 3

21 U.S.C. 848(b)(2) (A) eee. 13

a, 2,4

tg a a 4

I II lc Beal oc scecacnoseurnomanntonscicsuiiaaces 2,4, 8,9

Fed. R. Evid.:

I es 12

pan 501 (4) (2) (Ee) —................... 2,12

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-591

BRENT HARELSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 78-638

DENNIS L. LIPPER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

No. 78-769

CHARLES A. JGHNSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)*

is reported at 575 F.2d 1347.

JURISDICTION

The judgment of the court of appeals was entered

on July 5, 1978. Petitions for rehearing were denied

on September 11, 1978. Mr. Justice Powell extended

the time for filing a petition for a writ of certiorari

in No. 78-769 to November 10, 1978. The petition in

No. 78-591 was filed on October 10, 1978, the petition

in 78-638 was filed as of October 5, 1978, and the

petition in No. 78-769 was filed on November 8, 1978.

QUESTIONS PRESENTED

1. Whether the trial court erred by refusing to

instruct the jury that commission of an overt act is

an essential element of a conspiracy to import a con-

trolled substance, in violation of 21 U.S.C. 952 and

963.

2. Whether the trial court abused its discretion by

qualifying an expert witness to testify on the national

origin of marijuana.

3. Whether Fed. R. Evid. 801(d) (2) (E), provid-

ing for the admission of declarations of co-conspira-

tors, violates the Confrontation Clause of the Sixth

Amendment.

*“Pet. App.” refers to the appendix to the petition in

No. 78-591.

3

4. Whether the evidence supported petitioner

Johnson’s conviction for engaging in a continuing

criminal enterprise, in violation of 21 U.S.C. 848.

5. Whether there was a prejudicial variance be-

tween the bill of particulars and the proof at trial

concerning the identities of the individuals organized,

supervised, or managed by petitioner Johnson during

the continuing criminal enterprise.

STATUTE INVOLVED

21 U.S.C. 848(b) provides:

Continuing criminal enterprise defined.

* * * 9 person is engaged in a continuing

criminal enterprise if—

(1) he violates any provision of this sub-

chapter or subchapter II of this chapter the

punishment for which is a felony, and

(2) such violation is a part of a continu-

ing series of violations of this subchapter or

subchapter II of this chapter—

(A) which are undertaken by such

person in concert with five or more

other persons with respect to whom

such person occupies a position of orga-

nizer, a supervisory position, or any

other position of management, and '

(B) from which such person obtains

substantial income or resources.

STATEMENT

After a jury trial in United States District Court

for the Northern District of Florida, petitioners were

4

convicted on one count of conspiracy to import mari-

juana, in violation of 21 U.S.C. 952 and 963, and (ex-

cept for petitioner Storey) on one or more substantive

counts of importing marijuana, in violation of 21

U.S.C. 952(a). In addition, petitioner Johnson was

convicted for engaging in a continuing criminal enter-

prise, in violation of 21 U.S.C. 848. Johnson was

sentenced to concurrent terms of five years’ imprison-

ment on the two importation counts, a consecutive

term of five years’ imprisonment on the conspiracy

count, and a consecutive term of ten years’ imprison-

ment on the continuing criminal enterprise count, all

to be followed by a special parole term of three years.

Petitioner Harelson was sentenced to concurrent

terms of four years’ imprisonment on the conspiracy

count and one importation count, and a special parole

term of three years. Petitioners Lipper and Schlager

were sentenced to concurrent terms of five years’ im-

prisonment on the conspiracy count and one importa-

tion count, and a special parole term of three years.

Petitioner Storey was sentenced to five years’ im-

prisonment and a special parole term of three years.

The court of appeals vacated Johnson’s conspiracy

conviction in light of this Court’s opinion in Jeffers v.

United States, 432 U.S. 137 (1977), but otherwise

affirmed (Pet. App. A).?

* The court of appeals also reversed the conspiracy convic-

tion of one defendant, Jesse Roscoe Storey, on the ground of

insufficient evidence. Another defendant, Kenneth Vance, was

acquitted by the jury.

pe ee me

5

As detailed in the opinion of the court of appeals

(Pet. App. A2-A10), the evidence showed that peti-

tioner Johnson was the central figure in a continuing

conspiracy to import Colombian marijuana into the

United States between July 1, 1971, and December

31, 1974. During this time, marijuana was imported

on four separate occasions: in January 1972 at In-

terarity Point, Florida; in June 1972 at Orange

Beach, Alabama; in December 1972 at St. Marks,

Florida; and in November 1978 at St. George Island,

Florida.

In the summer of 1971, John de Pianelli (the

principal government witness at trial) and petitioner

Harelson put up “front money” to finance a shipment

of marijuana after Johnson said that he had formed

a partnership with an individual who would obtain

marijuana and ship it from Colombia (X R. 12-15).

Thereafter, when the marijuana arrived at Johnson’s

house in Interarity Point, de Pianelli and Harelson

each received a share of the shipment, which they

distributed individually. Petitioners Lipper and Sch-

lager also received shares of this shipment (X R.

22-23). Captain Larry Storey brought the marijuana

from Colombia to Florida on his shrimp boat (X R.

25-26).

Using the proceeds from the sale of the Interarity

Point shipment, Harelson and de Pianelli gave John-

son more front money to finance a second marijuana

shipment (IX R. 80-90). Thereafter, de Pianelli and

3“R.” refers to the volumes of the record in the court of

appeals.

6

Harelson drove back to Johnson’s house at Interarity

Point, where Lipper, Schlager, George Driver, David

Barca, and Johnson were present (IX R. 95, 99-101).

Johnson explained that the shipment of marijuana

was on the way from South America by boat and that

it was to be delivered at a house that he had rented

in Orange Beach, Alabama. Johnson stated that re-

peated use of the Interarity Point house would attract

attention (IX R. 103, 111-114).

De Pianelli and Harelson then drove to the house

at Orange Beach, where the marijuana arrived on a

skiff with J. Moen and Gary Vance on board (IX R.

119-120). Moen said that the skiff had disembarked

from another vessel, the “Decatur,” which had come

from South America and was captained by Larry

Storey, with a crew including one or both of his sons,

petitioner Larry Storey, Jr., and Jesse Storey, and

Mathew Moen (IX R. 128-130). After the skiff was

hidden, the men drove to the Interarity Point house.

That night, Johnson, Harelson, Lipper, Schlager, and

the others at the Interarity Point house returned to

Orange Beach to unload the skiff (IX R. 124-125).

While Johnson supervised the weighing and allocation

of the marijuana, the others helped in unloading it

(IX R. 126-128). After the marijuana had been

separated, Johnson told Schlager, Lipper, Driver,

Harelson, and de Pianelli that there would soon be

another importation (IX R. 142). The individuals

then left to distribute the marijuana.

Later in the summer of 1972, de Pianelli met with

Johnson in California to give him additional front

7

money to finance a third shipment of marijuana (IX

R. 146). In December 1972, Johnson, de Pianelli,

Harelson, Schlager, Lipper, Driver, Barca, and Moen

met at a fishing camp in St. Marks, Florida, which

Johnson had rented as the new base for the operation

(IX R. 146-148; XI R. 221-225). A skiff owned by

Johnson and modified at a boatyard under his instruc-

tions (IX R. 152-155; XII R. 72-82) was used by

Schlager and Lipper to contact the vessel carrying the

marijuana and bring the shipment ashore (IX R. 155-

158). De Pianelli and the others formed a human

chain to unload the bales of marijuana from the skiff.

Again the marijuana was weighed, using the same

scale as at Orange Beach, and distributed among the

various men (IX R. 152, 158-160, 165-169, 173-174).

In the spring of 1973, Johnson, Lipper, Schlager,

and de Pianelli met at Johnson’s house at Interarity

Point to discuss yet another shipment of marijuana.

Johnson said that 5-6 thousand pounds of high quality

marijuana were in storage in Colombia. J. Moen was

making arrangements to seud it on a ship from Co-

lombia to the Gulf of Mexico, where it would again be

transferred to the “Decatur” for carriage ashore. He

also stated that Captain Storey and his two sons,

Jesse and Larry, were to be aboard the “Decatur”

(IX R. 183-185, 188-193, 235). De Pianelli paid

$30,000 for a share of the load (IX R. 194). There-

after, in early December 1973, the load was trans-

ported to the United States according to plan and

brought ashore at a house that Johnson had purchased

on St. George Island, Florida (IX R. 211-219; XII

8

R. 64-67). Because the load was larger than expected,

Johnson gave de Pianelli $156,000 worth of mari-

juana in addition to the share that he already had

purchased (IX R. 220-221).

Three weeks later, de Pianelli returned to St.

George Island and made a $25,000 partial cash pay-

ment to Johnson (IX R. 236, 238), at which time

Larry Storey, Jr., commented that he had been down

in Colombia with the load (IX R. 236-237). How-

ever, when de Pianelli was unable to pay the rest of

the money that he owed Johnson, Bill Lawrence and

Larry Storey, Jr., assisted Johnson in coercing pay-

ment from him (IX R. 244-256; XII R. 139-144; XIII

R. 62-63) .*

ARGUMENT

1. Contrary to petitioner Harelson’s assertion (78-

591 Pet. 3-6), there is no significant difference among

the circuits on the question whether a defendant,

charged under a special conspiracy statute such as

21 U.S.C. 963 (which—in contrast to 18 U.S.C. 371

—does not specify commission of an overt act as an

* Afterwards, Lawrence continued to work for Johnson

(XIII R. 7). In the summer of 1974, Johnson told him of

plans for a further marijuana importation scheme. Under

that plan, Lawrence was to meet with Lipper and J. Moen at

the St. George Island house (XIII R. 8-12). However, when

Lipper and J. Moen arrived at St. George Island and discov-

ered that the house was under surveillance by law enforce-

ment officers, the proposed project was called off (XIII R. 12).

Thereafter, Johnson told Lawrence that the load “was dis-

posed of at sea, in the sense it was sold somewhere else”

(XIII R. 12, 16).

9

element of the offense), is entitled to an instruction

requiring proof of an overt act as a precondition to

conviction.’ Only the Tenth Circuit unequivocally re-

quires such proof. United States v. King, 521 F.2d

61, 63 (1975).° In accordance with the common law,

on the other hand, this Court and seven circuits have

held that, if a conspiracy statute does not provide that

commission of an overt act is an element of the of-

fense, an overt act need not be pleaded or proved.

Singer v. United States, 323 U.S. 338, 340 (1945);

Fiswick v. United States, 329 U.S. 211, 216 n.4

(1946); Nash v. United States, 229 U.S. 373, 378

(1913) ; United States v. DeJesus, 520 F.2d 298, 301

(1st Cir.), cert. denied, 423 U.S. 865 (1975) ; United

States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975),

cert. denied, 425 U.S. 970 (1976); United States v.

Dreyer, 533 F.2d 112, 117 & n.6 (3d Cir. 1976);

521 U.S.C. 963 punishes “[a]ny person who attempts or

conspires to commit any offense defined in this subchapter

* * *” The general conspiracy statute, 18 U.S.C. 371, in con-

trast, provides in relevant part: “If two or more persons con-

spire * * * and one or more of such persons do any act to effect

the object of the conspiracy, each shall be [punished].”

®° King stated a rule that while an overt act need not be

alleged, a defendant is nevertheless entitled to an instruction

requiring proof of an overt act because a conspiracy is not

complete—and hence punishable—unless an overt act is com-

mitted. 521 F. 2d at 63. Completion by means of an overt

act, however, is not one of the elements of the offense under

21 U.S.C. 963. Moreover, at common law no overt act was

required. See Nash v. United States, 229 U.S. 373, 378 (1913) ;

Singer v. United States, 323 U.S. 338, 340 (1945). An overt

act must be proved under the general conspiracy statute only

because the statute in terms requires such proof.

10

United States v. Palacios, 556 F.2d 13859, 1364 n.9

(5th Cir. 1977); United States v. Burts, 5386 F.2d

1140, 1141 (6th Cir. 1976), cert. denied, 429 U.S.

1044 (1977); United States v. Umentum, 547 F.2d

987, 989-991 (7th Cir. 1976), cert. denied, 430 U.S.

983 (1977); Ewing v. United States, 386 F.2d 10,

15 (9th Cir. 1967), cert. denied, 390 U.S. 991

(1968).7 Moreover, to the extent that resolution of

the conflict between the Tenth and the other circuits

might be thought desirable, this case presents an in-

appropriate vehicle for that purpose, since the guilty

verdicts on the substantive importation counts con-

stituted direct findings by the jury that numerous

overt acts had in fact been committed in furtherance

of the conspiracy. Thus, even if the instructions on

the conspiracy charge were insufficient, the defect was

merely a technical one that could not have affected the

verdict in any respect.

7 Harelson supports his contention that the Sixth Circuit re-

quires proof of an overt act, and that the First and Third

Circuits have not reached the issue, by citing cases decided by

those circuits prior to the decisions—Burts, DeJesus and

Dreyer—that we have cited in the text (supra). Moreover,

one of the Sixth Circuit cases upon which he relies, Singer v.

United States, 208 F. 2d 477 (1953), involved—as did his

Fourth Circuit citation, Harms v. United States, 272 F. 2d

478 (1959)—a conspiracy charge brought under the general

conspiracy statute. United States v. Williams, 503 F. 2d 50,

54 (1974), his other Sixth Circuit citation, and United States

v. Hutchinson, 488 F. 2d 484, 490 (1973), his Eighth Circuit

citation, are cases in which the requirement of an overt act

was merely assumed, and that assumption was based on cases

involving the general conspiracy statute. See United States

v. Umentum, supra, 547 F. 2d at 990.

11

2. At trial, de Pianelli testified on voir dire that he

had smoked marijuana over a thousand times, had

been called upon to identify marijuana by its origin

over a hundred times and had done so without error,

had been involved in approximately twenty marijuana

transactions, and had compared Colombian, Mexican

and Jamaican marijuana more than twenty times (X

R. 40-42, 52, 61-64). He explained that the origin

of marijuana could be identified by the appearance of

the leaf, buds, seeds, and stem and by the taste and

smell of the smoke (X R. 42), with Colombian mari-

juana being distinctive because of its high resin con-

tent and the compactness and smallness of its flowers

and buds (X R. 51-52, 56, 77-79). He added that

Colombian marijuana grown in this country is dis-

tinguishable from that which is imported by a harsher

smoke, less resin, and the absence of a burlap-like

taste (X R. 79-80), and that he had compared im-

ported and American-grown Colombian marijuana on

ten different occasions without a mistake in identifi-

cation (X R. 80). De Pianelli was then qualified as

an expert and permitted to testify that, based on his

sensory evaluation, the marijuana received in each

shipment was of Colombian origin (X R. 81-87).

Petitioners argue (78-638 Pet. 22-28) that the trial

court abused its discretion by qualifying de Pianelli

as an expert on the origin of marijuana, both be-

cause the subject matter was not a proper subject for

expert opinion and because de Pianelli’s expertise was

12

not sufficiently established.* However, Rule 702, Fed.

R. Evid., expressly provides that a witness may be

“qualified as an expert by * * * experience” as well

as special training. Moreover, the trial court has

broad discretion in passing on the qualifications of an

expert and the admissibility of his testimony, and its

ruling will only be reversed if it is “manifestly erro-

neous.” See United States v. Bolts, 558 F.2d 316,

322 (5th Cir. 1977); United States v. Viglia, 549

F.2d 335, 337 (5th Cir. 1977). Here, as the court of

appeals correctly noted (Pet. App. A26-A29), the

source of marijuana was a proper subject for expert

testimony, and the extensive voir dire examination

“revealed that [de Pianelli’s] substantial experience

in dealing with marijuana included identification of

Colombia marijuana” (id. at 27). Petitioners were,

of course, free to impeach de Pianelli’s credibility

through cross-examination and rebuttal, which they

attempted to do (see 78-638 Pet. 7-8). Accordingly,

the trial court did not abuse its discretion in admit-

ting de Pianelli’s expert testimony. See United States

v. Bermudez, 526 F.2d 89, 97-98 (2d Cir. 1975),

cert. denied, 425 U.S. 970 (1976); United States v.

Almada-Aldama, 462 F.2d 952 (9th Cir. 1972);

United States v. Warner, 441 F.2d 821, 831 (5th

Cir. 1971).

3. Petitioners also contend (78-638 Pet. 9-21) that

Rule 801 (d) (2) (E), Fed. R. Evid., which permits the

8In the court below, petitioner Lipper conceded (77-5327

Lipper Br. 7), however, that de Pianelli was competent to

identify the marijuana.

13

jury to consider hearsay declarations of co-conspira-

tors made during the course of and in furtherance of

the conspiracy, violates the Confrontation Clause of

the Sixth Amendment. As the court of appeals prop-

erly noted (Pet. App. A80), this argument is frivo-

lous in light of Dutton v. Evans, 400 U.S. 74, 80-82

(1970). See also United States v. Nixon, 418 U.S.

683, 701 (1974); Anderson v. United States, 417

U.S. 211, 218 (1974).

4. Johnson raises a two-part argument against his

conviction for engaging in a continuing criminal en-

terprise in violation of 21 U.S.C. 848. First, he claims

that the government, in response to his motion for a

bill of particulars, had indicated that his co-defend-

ants were not included among the persons whom he

managed, supervised, or organized within the mean-

ing of Section 848(b)(2)(A). Second, he contends

that none of the other persons involved in the con-

spiracy ° were so managed, supervised, or organized,

because there was no showing that they were sub-

servient to him (78-769 Pet. 22-48).

* The court of appeals found that petitioner Johnson acted

in concert with six individuals other than his co-defendants—

Captain Storey, Moen, Driver, Barca, di Pianelli, and Law-

rence (Pet. App. A20). Johnson claims, however, that Law-

rence must be excluded from the list because he was not in-

volved in any of the four shipments. But Lawrence’s activi-

ties all occurred within the 314 year period in which the con-

tinuing criminal enterprise occurred. Moreover, the collection

of the money de Pianelli owfed Johnson was clearly part of

the continuing criminal enterprise, and Lawrence assisted in

that collection effort. Finally, Lawrence was involved with

Johnson and others in a later unsuccessful importation effort

that was also part of the continuing criminal enterprise (see

note 4, supra).

14

Both arguments are based on an erroneous reading

of the definitional section of Section 848. As the

court of appeals pointed out (Pet. App. A20), and as

we have detailed in the statement above, Johnson

arranged each of the four completed importations (as

well as the final aborted importation), accumulated

the necessary front money, coordinated activities with

his partner in Columbia, acquired the sites and the

boats to facilitate the importation, and acted as a

general coordinator of activities at each importation

site. This was sufficient to place him in the position

of an organizer with respect to the various individ-

uals who participated in the importations. As the

court of appeals noted, it was not necessary, to satisfy

the statutory definition, that Johnson conduct the im-

portation activities “with the regimentation of a G3

Section in the United States Army” (ibid.).

For similar reasons, Johnson’s bill of particulars

argument lacks merit, even assuming arguendo that

there was a variance between the bill of particulars

and the proof.” A variance between a bill of particu-

1° Tt is not at all clear that there was any variance. In his

oral response to the motion for a bill of particulars, the

prosecutor specified as “organizees” four Spanish-surnamed

individuals named in other counts but not in the continuing

criminal enterprise count and “other people that are not named

in the indictment” (VII R. 48-49). Other co-defendants were

thus inferentially excluded from the “organizee” group be-

cause they were charged as organizers in the continuing crimi-

nal enterprise count. At the close of the government’s case,

that count was dismissed as to all defendants except Johnson.

In denying Johnson’s motion to dismiss the count as to him,

the district court described the persons whom Johnson had

15

lars and the government’s proof is fatal only if the

defendant is prejudiced thereby in the preparation of

his defense. United States v. Horton, 526 F.2d 884,

887 (5th Cir. 1976). Johnson claims prejudice on

the ground that, had he known that his co-defendants

were included among the “organizees,” he would have

sought to show—by cross-examining de Pianelli or by

calling his co-defendants as witnesses after obtaining

a severance—that his co-defendants did not occupy a

subservient relationship to him.* The short answer

to this is that Johnson’s guilt did not require “‘sub-

servience” on the part of those with whom he acted

and only required organizational activities on his part

organized: “‘[w]e have each of the defendants on trial here—

we have a bunch of them right around and we have de Pianelli,

we have got Moen, we have others, I think there is much more

than five here involved” (XIII R. 95). In its instructions to

the jury, however, the court did no more than refer to the

statutory definition, without specifying who the necessary

five persons might be (XVI R. 162-163). In his closing argu-

ment to the jury, the prosecutor merely referred to “Mr. de

Pianelli, Mr. Moen, Barka, Driver and these other people

that were involved in this enterprise” (id. at 41).

1 Johnson’s argument based on a possible “severance” is

entirely speculative. He has shown neither that his co-

defendants would have been willing to testify on his behalf in

a separate trial without asserting their Fifth Amendment

privilege (see United States v. Nakaladski, 481 F. 2d 289,

301-302 (5th Cir.), cert. denied, 414 U.S. 1064 (1973)),

nor that testimony by them regarding their relationship to

him would have been sufficiently trustworthy and significant

to warrant a severance. See United States v. Alfonso, 552

F. 2d 605, 616 (5th Cir.), cert. denied, 434 U.S. 857 (1977) ;

United States v. Alejandro, 527 F. 2d 423, 428 (5th Cir.),

cert. denied, 426 U.S. 923 (1976).

16

(which were clearly shown). Thus, evidence of lack

of subservience of his co-defendants would have been

irrelevant and immaterial in any event. Moreover,

Johnson was placed on notice that his co-defendants

were no longer viewed as “organizers” and might be

considered to be “organizees” when the Section 848

charges were dismissed against them. See United

States v. Rivero, 5382 F.2d 450, 456-457 (1976). And,

if Johnson wished to question de Pianelli further on

the subject of “subservience,” he was free to recall

him to the witness stand.

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ROBERT J. ERICKSON

MARSHALL TAMOR GOLDING

Attorneys

JANUARY 1979

W ov. 8. Government painting orrice; 1979 284372 261