Petition — Bradford v. United States

d a.

Court, U T

FILED

JAN 18 1979

LWICHAEL RODAK, JR., CLERR

In the

Supreme Court of the United States

October Term, 1978

Number 7 — 5 1 1 2 7

ROBERT W. BRADFORD, Petitioner

vs.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A

WRIT OF CERTIORARI

TO THE UNITED.

STATES SUPREME

COURT

DAVID H. GILL, II

SALCICCIA, KILLEN & GILL

870 N. Ist Street

San Jose, California 95112

Counsel for Petitioner

January 10, 1979

Questions Presente

Statutory Provisions Involved .................

Statement of the Case ...........cccsceseecvnes

Reasons for granting the Unit.................

1. The Decision below Denying Petitioner the

Right to present the defenses ‘of Justifica-

tion and Coercion to the Jury is wrong in

light of General Principles of Law and

denied petitioner his 6th Amendment right

toa F. air Trial % 0 6 0 eee eye e 0 e ö % 6 0 0 00e

2. Petitioner was placed twice in Jeopardy for

the same offense by being sentenced von-

secutively on the two conspiracy counts .

3. Petitioner’s conviction of Smuggling in

Count 3 is in conflict with decisions of the

Fifth and Ninth Circuits.................

G ( daleidas'l i as dips 8

Appendix (Opinion and qudgment of

eee ele

I TABLE OF CASES

Bice v. State (1899)

109 Ga 117, 34 S.E. 202

Braverman v. U.S. (1942)

317 U.S. 49, 63 S. Ct. 99

C & O Ry. Co. v. Commonwealth (1905)

119 Ky 519, 84 S.W. 566

Goldberg v. Kelly ( )

397 U.S. 254, 25 L.Ed 2d 287, 90 8 Ct. 1101

Tannelli v. U.S. (1974)

420 U.S. 770, 95 S. Ct. 1284, 43 L.Ed 2d 616

Kennedy v. U.S. (C.A. 9, 1930)

447 2d 131

People v. Whipple (1929)

100 C.A. 261, 279 P. 1008

Regina v. Dudley and Stephens (1884)

24 Fed.Cas 873, No. 14470

R.I. Recreation Center v.

Aetna Casualty & Surety Co. (CA 6, 1949)

177 Fed 603

Rutherford v. United States (WD Okla, 1975)

399 7 Supp 1208

Rutherford v. United States (CA 10, 1976)

542 F 2d 1137

Rutherford v. United States (WD Okla, 1976)

429 F. Supp 105

Rutherford v. United States (WD Okla, 1977)

438 F. Supp 1287

Rutherford v. United States (WD Okla, 1976)

429 F. Supp 506

Rutherford v. United States (CA 10, 1977)

582 F. 2d 1234

Shannon v. U.S. (CA 10, 1935)

76 F. 2d 400

Sherman v. U.S. (CA 5, 1920)

268 F. 516

State v. Jackson (1902)

71 N.H. 552, 53 Atl. 1021

Tomoya er rte v. U.S. (1951)

72 S.Ct. 950

U.S. v. Anthony (M.D. Pa)

145 F. Supp 323

U.S. v. Arteaga Limones (CA 5, 1976)

529 F.2d 1183, Cert. denied 529 U.S. 920 U.S.

U.S. v. Ashton (C. C. D. Mass; 1834)

24 Fed.Cas. 873, No. 14470

U.S. v. Glasser (CA 9, 1977)

550 F. 2d 483

U.S. v. Holmes (C.C.D. Pa. 1842)

1 Wall. Jr. 1

U.S. v. Kroncke (CA 8, 1972)

459 F.2d 515

U.S. v. McClain (CA 9, 1976)

531 F.2d 431

U.S. v. Meyer (CA 9, 1970)

447 2d 131 )

U.S. v. Mowat (CA 9, 1978)

582 F.2d 1194

U.S. Nye (C.C.D. R. I. 1846)

27 Fed.Cas. 1290, No. 16734

U.S. v. Randall (D.C. Supr. 1976)

20 Cr.L. 2299

U.S. v. Roselli (CA 9, 1970)

432 F.2d 879; cert denied 429 U.S. 920

U.S. v. Simpson (CA 9, 1972)

460 F.2d 515

U.S. v. The Diana

7 Wall 35, 19 L.Ed 165

Wright v. U.S.

146 F. 121, 76 C. C. A. 547

II OTHER SCURCES

ALI Model Penal Code, 3.02

III TABLE OF STATUTES

18 U.S.C. § 371

U.S.C, 545

18 U.S.C. 1952

19 U.S.C. 2314

21 U.S.C, 841

21 U.S.C. 963

21 U.S.C. 1254

In the

Supreme Court of the United States

October Term, 1978

Number

ROBERT W. BRADFORD, Petitioner

vs.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A

WRIT OF CERTIORARI

TO THE UNITED

STATES SUPREME

COURT

The petitioner, ROBERT W. BRADFORD respectfully

prays that a writ of certiorari issues to review the

judgment and opinion of the United States Court of

Appeals for the Ninth Circuit entered on October 26,

1978.

OPINION BELOW

The opinion of the Court of Appeals, which was

reported, appears in the Appendix, hereto. No opinion

was rendered by the District Court for the Southern

District of California.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on October 26, 1978. A timely peti-

tion for rehearing, or, in the alternative, for transfer to

the Court en banc was denied on December 18, 1978,

and this petition for certiorari was filed within thirty

2

days of that date. This Court's jurisdiction is revoked

under 28 USC § 125441).

QUESTIONS PRESENTED

1. Whether petitioner was denied Due Process and

the right to a Fair Trial by the trial court’s refusal to

permit petitioner to present defenses of justification,

coercion and Governmental Misconduct.

2. Whether petitioner was placed in Double Jeopardy

by being sentenced to consecutive sentences on the two

counts of conspiracy to violate Title 18 United States

Code, sections 371 and 545.

3. Whether petitioner’s conviction of smuggling in

Count 3 is in conflict with decisions of the Second and

Ninth Circuits.

STATUTORY PROVISIONS INVOLVED

18 U.S.C. §371: “If two or more persons conspire

either to commit any offense against the United States,

or to defraud the United States, or any agency thereof

in any manner or for any purpose, and one or more of

such persons do any act to effect the object of the con-

spiracy, each shall be fined not more than $10,000.00 or

imprisoned not more than five years, or both.

If, however, the offense, the commission of which is

the object of the conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not exceed the

maximum punishment provided for such misdemeanor.”

18 U.S.C. § 545: “Whoever knowingly and willfully,

with intent to defraud the United States, smuggles, or

clandestinely introduces into the United States any

merchandise which should have been invoiced, or

makes out or passes, or attempts to pass, through the

customhouse any false, forged, or fraudulent invoice, or

other document or paper; or

Whoever fraudulently or knowingly imports or brings

into the United States, any merchandise contrary to

law, or receives, conceals, buys, sells, or in any manner

-3-

facilitates the transportation, knowing the same to

have been import or brought into the United States

contrary to law — 2

Shall be fined not more than $10,000.00 or imprisoned

not more than five years, or both.

Proof of defendant’s possession of such goods, unless

explained to the satisfaction of the jury, shall be

deemed evidence sufficient to authorize conviction for

violation of this section.

Merchandise introduced into the United States in

violation of this section, or the value thereof, to be

recovered from any person described in the first or

second paragraph of this section, shall be forfeited to

the United States 10

STATEMENT OF THE CASE

Petitioner Bradford joined an on-going conspiracy,

involving 18 individual defendants, these corporate

defendants, and numerous unindicted co-conspirators,

to smuggle and distribute Laetrile throughout the

United States. Petitioner was convicted of two counts

conspiracy to smuggle, and to receive smuggled

merchandise (18 U.S.C. 371, 545) and three substantive

counts of smuggling or receiving smuggled merchan-

dise (18 U.S.C. 545).

The Laetrile conspiracy began in September, 1971,

with the construction of Cyto Pharma, a Laetrile manu-

facturing plant in Tijuana, Mexico, and the “under-

ground railway” to smuggle the Laetrile into the

United States and to distribute it to cancer patients by

mail and common carrier.

Petitioner Bradford was President and one of the

founders of the Committee for Freedom of Choice in

Cancer Therapy (450 chapters, a National Head-

quarters, over 25,000 members), a non-profit corporation

formed in January, 1973, and advocating the legaliza-

tion and use of Laetrile by physicians as a valid

modality of treating cancer.

-4-

Petitioner, prior to entering into distribution of

Laetrile in early 1973, was advised by attorney George

Kell (1) that Laetrile could be legally imported; (2) the

Federal Food and Drug Administration could not

lawfully prohibit the importation of Laetrile because

the F.D.A. had failed in its duty to conduct hearings to

determine whether Laetrile was a “new drug” or

exempt under the “grandfather” clauses of the Federal

Food, Drug & Cosmetic Act (R.T. 4558:18-4736:22; Cf.

Rutherford v. U.S. (CA 10, 1976), 542 F.2d 1137; and (3)

that the justification of acting to save human life would

be a valid defense to charges arising from importing

and distributing Laetrile.

Thereafter, Petitioner became a major distributor of

Cyto Pharma Laetrile. Petitioner, as President of the

Committee for Freedom of Choice, also conducted

public education and medical] training programs,

supported scientific and medical research programs

pertaining to Laetrile, lobbied for State and Federal

recognition of Laetrile, and participated in the

Rutherford cases', which successfully enjoined the

F.D.A. from prohibiting the importation of Laetzile.

(R.T. 4868:6-4901:8).

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW DENYING PETI-

TIONER THE RIGHT TO PRESENT THE

DEFENSES OF JUSTIFICATION AND COER-

CION TO THE JURY IS WRONG IN LIGHT OF

GENERAL PRINCIPLES OF LAW AND DENIED

PETITIONER HIS 6th AMENDMENT RIGHT

TO A FAIR TRIAL.

Rutherford v. U.S., 399 F. Supp 1208 (WD Okla, 1975); 542 F.2d

1137 (CA 10, 1976); 424 F.Supp 105 (WD Okla, 1976); 429 F.Supp 506

(WD Okla, 1976); 438 F.Supp 1287 (WD Okla, 1977); 582 F.2d 1234

(CA 10, 1977), presently on petition for certiorarg, to the United

States Supreme Court, Nos. 78-605 and 78-763.

-5-

Petitioner's conviction cannot be squared with the

6th Amendment right to a Fair Trial. The trial court’s

decision to eliminate petitioner’s right to present the

defenses of justification and coercion effectively cur-

tailed petitioner’s right to jury trial, and stands in

conflict with general common law principles pertaining

to these defenses.

The ALI Model Penal Code, section 3.02, has sum-

marized the common law defense of necessity or

justifiable conduct as follows:

“1. Conduct which the actor believes necessary to

avoid an evil to himself or to another is justifiable, pro-

vided that:

(a) the evil sought to be avoided by such conduct

is greater than that sought to be prevented by the law

defining the offense charged; and

(b) neither the Code nor other law defining the

offense provides exemptions or defenses dealing with

the specific situation involved; and

(c) a legislative purpose to exclude the justifica-

tion claimed does not otherwise plainly appear;

2. When the actor was reckless or negligent in bring-

ing about the situation requiring a choice of evils or in

appraising the necessity for his conduct, the justifica-

tion afforded by this Section is unavailable in a

prosecution for any offense for which recklessness or

negligence, as the case may be, suffices to establish

culpability.”

Cf. U.S. v. The Diana, 7 Wall. 35, 19 L.Ed. 165; Regina

v. Dudley and Stephens, L.R. 14 Q.B.D. 273 (1884); U.S.

v. Ashton, 24 Fed. Cas. 873, No. 14470 (C.C.D. Mass

1834), U.S. v. Holmes, 1 Wall Jr. 1 (C. C. D. Pa. 1842),

U.S. v. Nye, 27 Fed.Cas. 210, No. 15, 906 (C.C.D. Mass

1855), U.S. v. Staly, 27 Fed. Cas. 1290, No. 16734 (C.C.D.

R. I. 1846), State v. Jackson, 71 N.H. 552, 53 Atl. 1021

(1902), C&O Ry. Co. v. Commonwealth, 119 Ky 519, 84

8

S. W. 566 (1905), Bice v. State, 109 Ga. 117, 34 S. E. 202

(1899), People v. Whipple, 100 C.A. 261, 279 P. 1008

(1929), U.S. v. Simpson, 460 F.2d 515 (CA 9, 1972), U.S.

v. Kroncke, 459 F.2d 697 (CA 8, 1972), U.S. v. Mowat,

582 F.2d 1194 (CA 9, 7/18/78), U.S. v. Randall, (DC

Supr.Ct. 11/24/76), 20 Cr.L. 2299.

The United States Court of Appeals for the Ninth Cir-

cuit held petitioner was not entitled to this defense

(Opinion, Appendix A, pages 4-5) because:

“The defense of necessity, where it is recognized to

exist, is hedged about with many conditions, at

least one of which would prevent is application

here: “The assertion of the necessity defense

requires that optional courses of action appear

unavailable” . .. Here the obvious optional course

of action was to take steps to render the neces-

sary” action legal — to pursue the course taken in

Rutherford v. United States, . in seeking to have

the FDA classification of Laetrile set aside or to

have it approved as a new drug

In so ruling, the Ninth Circuit ignored the “imminent

harm” aspect of the Common Law definition of neces-

sity. By offer of proof at trial petitioner established by

expert medical and scientific evidence that (1) cancer

kills quickly, horribly and painfully; and (2) the ineffec-

tiveness of conventional cancer therapies (R. T. 4653:16-

4659:23), (2) the immediate analgesic or pain-relieving

attribute of Laetrile (R.T. 5173:8-5151:17), (4) the life-

preserving attributes of Laetrile (R.T. 5851:1-5852:20,

4935:22-4946:22, 5425:14-5427:5, 5426:14-5429:2), and (5)

that the course pursued in Rutherford v. United States,

supra, begun in June, 1974, after several false starts

and presently on appeal to this Court some five years

later, would require so much time that 92-1/2% of the

cancer patients would have died (R.T. 5150:10-5151:6).

While litigation a la Rutherford would provide the

7.

‘optional course’ suggested by the Court of Appeal, it

does nothing to alleviate the “imminent harm” in the

interim five year period.

While it is for the trial court to determine whether an

affirmative defense may be presented (U.S. v. Glasser

(CAQ, 1977), 550 F.2d 483, 487), this Court has ruled that

an erroneous ruling excluding a proper defense violates

due process and the Sixth Amendment right to a fair

trial (Goldberg v. Kelly, 397 U.S. 254 25 L.Ed. 2d. 287, 90

S.Ct. 1101), as happened in the present case.

Likewise, the trial court denied petitioner his right to

present the defenses of coercion. Coercion is a

recognized defense where the crime is committed under

a present, immediate, impending and well grounded

apprehension of death or serious bodily harm if the act

is not done. RI Recreation Center v. Aetna Casualty &

Surety Co., 177 F.2d 603, (CA 6, 1949), Shannon v. U.S.,

76 F. 2d 400 (CA 10, 1935), U.S. uv. Anthony, 145 F.Supp

323 (MD Pa 1956). Wrongful acts of governmental

agents (U.S. v. McClain (CAQ, 1976), 531 F.2d 431, 438)

and the demand of the laws of the country (Tomoya

Kawakita v. U.S., 1951, US. , 72 S.ct 950, 961).

Although the FDA had acted arbitrarily and

capriciously in wrongfully prohibiting importation of

Laetrile (Rutherford v. U.S. (CA 10, 1976) 542 F.2d 1137,

Rutherford v. U.S., (WD okla, 1977) 424 F.Supp 105),

and although substantial evidence of. fear of

immediate, impending death on the part of laetrile

cancer patients, if their Laetrile supply were stopped

(R.T. 4948:15-24, 4935:22-4946:22, 5425:14-5427:5,

5426:14-5429:2), the lower court denied petitioner’s right

to present the defense and thereby denied him a Fair

Trial under the accepted legal principles. Petitioner

also suggests that there are important similar issues in

this case and the U.S. us. Rutherford casc Nos. 78-605

and 78-763, presently on appeal to this United States

Supreme Court, that warrant the granting of certiorari.

The decision below is in conflict with decisions of the

8

Court, and decisions of the Fifth and Ninth Circuits.

2. PETITIONER WAS PLACED TWICE IN

JEOPARDY FOR THE SAME OFFENSE BY

BEING SENTENCED CONSECUTIVELY ON

THE TWO CONSPIRACY COUNTS.

Petitioner’s indictment contained two conspiracy

counts which were identical; they contained the same

eight introductory allegations, the same 171 overt

allegations, named the same 19 defendants and same

33 unindicted co-conspirators, and enumerated the

identica’ items of contraband. Upon conviction, peti-

tioner was given consecutive fines on these two counts.

Petitioner relied on the test of Braverman v. United

States (1942) 317 US 49, 63 S.Ct. 99, 101-102, followed in

lannelli u. United States (1974), 420 U.S. 770, 777, 95

S.Ct 1284, 43 L.Ed. 2d 616:

“For when a single agreement to commit one or

more substantive crimes is evidenced by an overt

act, as the statute requires, the precise nature and

extent of the conspiracy must be determined by

reference to the agreement which embraces and

defines its object. Whether the object of a single

agreement is to commit one or more crimes, it is in

either case that agreement which constitutes the

conspiracy which the statute punishes. The one

agreement cannot be taken to be several agree-

ments and hence several conspiracies because it

envisages the violation of several statutes rather

than one.”

It must be noted that both conspiracy counts are

alleged under the General Conspiracy Statute, 18

U.S.C. section 371, alleging smuggling violations under

one statute, 18 U.S.C. section 545.

The Court’s reasoning was (Opinion, Appendix,

pages 7-8):

9

“Appellants were convicted of two separate

conspiracies; one to smuggle; one to receive and

distribute smuggled goods. Bradford and Salaman

were sentenced to pay fines for each offense and

thus received consecutive sentences. They contend

that while the conspiracy involvéd two substantive

offenses, it was but a single agreement and could

not be made the basis for two separate counts

without violating the double jeopardy clause. They

rely on Braverman v. United States, 317 U.S. 49, 53

(1942). Before the district court they moved to

dismiss the second count. The motion was denied.

The government’s theory at trial was that

separate and distinct conspiracy agreements had

been entered into by McNaughton and his Cyto

Pharma group with respect to smuggling and with

respect to receiving and distributing, and that

these appellants joined both ongoing conspiracies.

The government notes that the objects, members

and locales of the two conspiracies differed and

justified a finding of two conspiracies. It points out

that the evidence links some of the co-conspirators

to the smuggling operation while others are linked

to the distribution operation. Under these facts,

‘two distinguishable conspiracies may be charged,

prosecuted and punished when the jury so chooses

to interpret the evidence.’ United States bo.

Arteaga-Limones, 529 F.2d 1183, 1194 (5th Cir.),

cert, denied 429 U.S. 920 (1976). There the court

stated: a

‘The objects of the two conspiracies were differ-

ent (importation and distribution). The persons

involved were different; for example the evidence

links Cantu only to the ‘distribution’ portion.

Finally, the locales were different. Castillo’s

account alleged that the importation took place in

the Del Rio area; the distribution began there, but

the ultimate consumers of marijuana were in New

York.’

-10-

United States v. Arteaga-Limones, supra, 529

F.2d at 1194:

Appellants point out that both conspiracy counts

alleged the same overt acts and identical co-

conspirators. This does indeed suggest one agree-

ment rather than two, but is not sufficient to

establish that facts as matter of law. The question

whether there was but one agreement remained

one of fact for the jury, United States v. Roselli, 432

F.2d 879, 898 (9th Cir. 1970), cert. denied, 401 U.S.

924 (1971), and was resolved against appellants by

the verdict.”

Arteaga-Limones, supra, and Roselli, supra, do not

support the Court’s conclusion. An examination of

Arteaga-Limones, supra, shows that there the

defendant was charged with two separate counts of

conspiracy, one to violate 21 U.S.C. 963, the second to

violate 21. U.S.C. 841; and that each conspiracy

required different elements of proof. An examination of

Roselli, supra, shows that defendant was charged with

one count of conspiracy to violate two different statutes

(18 U.S.C. 1952 and 2314); and that each conspiracy

required proof of the elements of both offenses. The

Court of appeals for the Ninth Circuit deciding this

case failed to apprehend the distinction between a

defendant charged twice under a General Conspiracy

statute. The result of this failure has created a conflict

between this case and decisions of the Fifth Circuit,

Ninth Circuit and United States Supreme Court and

emphasizes a most troublesome question in the

administration of justice — differentiation between

general and specific conspiracy statutes at the trial

level.

Petitioner submits that these conflicts justify the

grant of certiorary to review the judgment below.

3. PETITIONER'S CONVICTION OF SMUG—

oe

-11-

GLING IN COUNT 3 IS IN CONFLICT WITH

DECISIONS OF THE FIFTH AND NINTH

CIRCUITS.

On September 27, 1973, as the result of an

anonymous tip, Customs officials seized 540 vials and 5

kilos of Laetrile at San Francisco airport, and detained

one Symonds. While Symonds was detained, annoy-

mous advised of the detention was telephoned to the

Committee for Freedom of Choice, and Petitioner made

telephone inquiries to Customs as to the seizures (R.T.

5154:6-5454:21, 1325:4-1326:1).

Customs investigations indicated the shipment was

consigned to unindicted co-conspirator Westover (R.T.

* 1225:20-1226:5): No evidence was introduced to

establish the Laetrile had been smuggled; Customs

agents conceded it could have been legally imported

(R.T. 1323:9-1324:8); and Laetrile was being legally

imported upon occasion (R.T. 4668:16-4702:24; 5166:8-

5172:1; 6803:5-12; 6165:19-6191:7; 5650:21-5651:5;

4969:10-5039:12; 4885:12-4894:10).

The Fifth Circuit held in Sherman v. United States

(CA 5, 1920), 268 F. 516, 517-518:

“The presumption which is raised by the foregoing

statute is simply that, where possession of goods

which have been proved to have been imported

contrary to law is shown, the burden of explaining

such possession is placed upon the defendant. But

the statute does not raise any presumption that the

goods were imported contrary to law. The burden

of proving this fact beyond a reasonable doubt

rests upon the government. United States v. Lot of

Jewelry, 13 Blatchf. 60, Fed. Cas. No. 15,626.”.....

The case is purely one of circumstantial evidence,

and the rule in such cases is that the proof shall

exclude every other reasonable hypothesis, except

the guilt of the accused. Wright v. United States,

States, 146 Fed 121, 76 C. C. A. 547.”

-12-

In U.S. u. Meyer (CA9, 1970), 432 F.2d 1000, the Ninth

Circuit reversed a smuggling conviction where Mexican

seconol was found concealed in the truck of an automo-

bile in which Meyer was a passenger 65 miles from the

border: The Meyer Court observed (at page 1001):

„Illegal importation of merchandise and knowl-

edge of the fact are essential elements of the crime

of which Meyer was convicted. But here there is no

evidence to establish either. The most that can be

inferred from this evidence is that four of the boxes

probably came from Mexico. Whether the boxes

contained the seconol capsules were illegally

imported are matters of pure conjecture. Similarly,

there is no proof of Meyer’s scienter. Mere

possession of illegally imported merchandise does

not prove the possessor’s knowledge of its illegal

importation. Nor can the conviction be rested upon

the portion of 18 U. S. C. section 545, which

provides that possession of imported merchandise

is sufficient evidence to authorize a conviction. The

' presumption created by that section does not arise,

save on proof that the particular goods were

unlawfully imported. Kennedy v. United States, 44

F. 2d 131 (9th Cir. 1930); Sherman v. United States,

268 F. 516 (5th Cir. 1920) (interpreting former 19

U.S.C. Section 1593, which was the predecessor of

section 545).”

The conflict between the decision in petitioner’s case

and decisions in the Fifth and Ninth Circuits justifies

the grant of certiorari to review the judgment below.

13.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Ninth Circuit.

January 4, 1979

Respectfully submitted,

David H. Gill, II

Salciccia, Killen & Gill

870 North First Street

San Jose, California 95112

Counsel for Petitioner

In the

United States Court of Appeals

for the Ninth Circuit

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHN ANTON RICHARDSON,

RALPH S. BOWMAN,

FRANK SALAMAN,

ROBERT WILLIAM BRADFORD,

Defendants-Appellants.

Nos. 77-2203

77-2204

77-2262

77-2288

OPINION

On Appeal from the United States District Court for

the Southern District of California

Before: MERRILL and ANDERSON, Circuit Judges,

and BARTELS,* District Judge

MERRILL, Circuit Judge:

Laetrile is a substance (drug or vitamin) around

which controversy for some time has.

raged as to

whether it provides effective cure of or relief from

cancer. The Food and Drug Administration has classi-

fied it as a new drug” under 21 U.S.C. §321(p): a drug

not generally recognized by experts to be safe and effec-

tive. Under 21 U.S.C. §355(b) as a result of this classifi-

cation an application for approval of the new drug must

be filed and the new drug cannot be transported in

interstate commerce without such approval.' Approval

* Honorable John R. Bartels, Senior United States District Judge of

the Eastern District of New York, sitting by designation.

-2-

so far has heen withheld, which precludes importation

of the drug and limits distribution of it in this country.

This case involves a conspiracy to smuggle the drug

into the United States from Mexico and thereafter to

distribute the smuggled merchandise. A twelve-count

indictment was returned by a grand jury in the

Southern District of California charging these four

appellants and fifteen other codefendants with two

conspiracies — one to smuggle merchandise and one to

receive, buy, sell, transport and conceal the smuggled

merchandise, both in violation of 18 U.S.C. §§371 and

545 — and also charging various substantive offenses.

The trial of these appellants was severed from that of

their codefendants. All four were found guilty of the two

conspiracy counts. Appellant Bradford also was found

guilty of three substantive counts: two of smuggling

and one of receiving, concealing and facilitating the

transportation of smuggled merchandise.

The record establishes that in 1971 one McNaughton

(a codefendant) was engaged in a chemical manufac-

turing business in Sausalito, California. He decided to

move his plant to Tiajuana, Mexico, and there to manu-

facture Laetrile. The plant was established under the

name of Cyto Pharma. One Contreras (a codefendant)

who maintained a cancer clinic in Mexico became co-

owner of the enterprise. One Greczy (a coconspirator)

who had acted as chemist for McNaughton in

Sausalito, and two Del Rio brothers from Mexico

(codefendants) were placed in charge of the plant. At

the outset the plant produced only for Contreras’ clinic.

A surplus developed, however, and in the fall of 1971 it

was decided by McNaughton, Contreras, Greczy and

the Del Rios that the surplus should be brought into the

United States for distribution. Since Customs officials

regularly seized all declared Laetrile, this meant that

the Laetrile would have to be smuggled in. One

Thurston (coconspirator) was designated to act as

distributor for McNaughton in the United States. Evi-

2 "of

dence as to the manner in which the conspiracy

operated came from correspondence of Thurston seized

under a state search warrant and from testimony of

Greczy and numerous other codefendants, many of

whom had actually brought Laetrile across the border

2 some of whom had engaged in knowing distribu-

on.

Appellant Richardson is a medical doctor engaged in

practice in Albany, California. Appellant Bowman is

his office manager. Appellants Bradford and Salaman

are active members of the Committee for Freedom of

Choice in Cancer Therapy, which is engaged in seeking

to remove the FDA classification of Laetrile or to secure

its approval.

Government Misconduct

Here, as in the district court, appeliants seek to secure

judicial recognition of the legitimacy of the use of

Laetrile in the treatment of cancer. They contend that

the FDA classification and its withholding of approval

for Laetrile amounted to governmental misconduct.

These questions, however, are not properly before us.

Appellants were not convicted for possessing or using

Laetrile but for conspiring to smuggle it, in violation of

18 U.S.C. §545. That section ‘makes it a crime

knowingly and wilfully, with intent to defraud the

United States, to smuggle or clandestinely introduce

into the United States any merchandise that should

have been invoiced. This court has held that the term

“invoiced” in §545 “carries the meaning attached to it

in the customs law, viz., lawfully entered or declared.“

United States v. Boggus, 411 F.2d 110, 112 (9th Cir.),

cert. denied, 396 U.S. 919 (1969). The United States

customs law as detailed by the Tariff Act of 1930, 19

U.S.C. §1202 et seq., requires a person entering the

United States from a foreign country to declare and

present for inspection all merchandise imported or

brought in from a foreign country. 19 U.S.C. §§1459,

1461, 1481, 1485.

-4-

Thus, one bringing goods into the country who fails

to properly declare or present the goods as required by

the Act violates 18 U.S.C. §545, whether importation of

the merchandise was legal or illegal, cf. United States

v. Kushner, 135 F.2d 668, 670 (2d Cir.), cert. denied, 320

U.S. 212 (1943) (duty free gold). Appellants do not

contest the fact that one entering the country is obliged

to declare any Laetrile he is bringing in. Thus the fact

that the FDA may have improperly classified Laetrile

as a new drug is irrelevant to a conviction for

smuggling.”

Justification

Appellants content that since Laetrile, when declared

at the border, was regularly seized by Customs officials

it could not be brought into the United States unless

smuggled. Further they contend that it was needed in

the United States to treat cancer patients. On these

facts they invoke the defense of necessity or “choice of

evils,” traditionally a branch of the common-law

doctrine of justification.

This defense is said to be available when the actor is

iaced with a choice of two evils and finds himself in a

position where he may either do something which vio-

lates the literal terms of the criminal law and thus

produce some harm or not do it and so produce a greater

harm.” LaFave and Scott, Handbook on Criminal Law

(1972) §50, page 387. Thus it is asserted that society will

benefit from the greater good that is accomplished by

the violation of the literal language of the law. United

States v. Simpson, 460 F.2d 515, 517-18 (9th Cir. 1972).

The defense of necessity, where it is recognized to

exist, is hedged about with many conditions, at least

one of which would prevent its application here: “(T]he

assertion of the necessity defense requires that optional

of action appear unavailable.” United States v. Mowat,

F. 2d . (9th Cir. July 18, 1978).

Here the obvious optional course of action was to take

-5-

steps to render the “necessary” action legal — to pursue

the course taken in Rutherford v. United States, supra

note 1, in seeking to have the FDA classification of

Laetrile set aside or to have it approved as a new drug.

If it was felt that classification as a new drug does not

justify seizure of Laetrile declared at the border, the

seizure could have been legally challenged. Also, as the

government suggests, another alternative was the

production of Laetrile in the United States.

We conclude that there is no merit in this contention

of appellants.’

Sufficiency of the Evidence

Appellants Salaman, Richardson and Bowman con-

tend that their conspiracy convictions were not

supported by sufficient evidence. While the evidence

clearly established that the Cyto Pharma group had

entered into a conspiracy to smuggle and that

appellants had received smuggled Laetrile and then

distributed it among themselves and to others, appel-

lants urge there is insufficient evidence tying them to

the conspiracy. Their basic defense to the charge was

that they believed that the Laetrile had been lawfully

imported.

Viewing the evidence and the inferences reasonably

to be drawn from it in the light most favorable to the

government, Glasser v. United States, 315 U.S. 60, 80

(1942), there is sufficient evidence to support the jury’s

verdict and the finding implicit in it that appellants

knowingly participated in the conspiracy.‘

Appellant Bradford contends that his convictions on

the substantive counts of smuggling and receiving were

not supported by sufficient evidence. He presents two

busic defenses; one, that the government did not estab-

lish that the Laetrile in question was unlawfully in the

United States; and two, that the government did not

establish that Bradford knew the Laetrile in question

was smuggled.

-6-

While there was no direct evidence of illegal importa-

tion of the shipments in question or of Bradford’s

knowledge, there is ample circumstantial evidence to

support the jury’s verdict. Circumstantial evidence is

sufficient to establish illegal importation. See United

States v. Scott, 446 F.2d 509, 510 (9th Cir. 1971); United

States v. Gibbs, 435 F.2d 621, 624 (9th Cir. 1970), cert.

denied, 401 U.S. 994 (1971). It is also sufficient to

establish knowledge of illegal importation. United

States v. Newton, 442 F.2d 622, 623 (9th Cir.), cert.

denied, 404 U.S. 844 (1971). Evidence respecting the

counts in question is dealt with at length in the govern-

ment’s brief and we do not choose to burden this

opinion with an extended discussion of it. It is enough

to note that the connection between Bradford and Cyto

Pharma was clearly established by the testimony of

couriers and telephone records of Bradford. The

Laetrile in question had been manufactured at Cyto

Pharma. The shipments followed the methods of

operation proved to be followed by Cyto Pharma

couriers. On each occasion there was similar coinci-

dence of arrest of courier, seizure of shipment and

communication between Bradford and Cyto Pharma.

On one occasion Bradford called Customs and requested

to have the shipment released to him.

We conclude that the evidence supported the jury

verdict on ali convictions.

Consecutive Sentences as Double Jeopardy

Appellants were convicted of two separate con-

spiracies: one to smuggle; one to receive and distribute

smuggled goods. Bradford and Salaman were

sentenced to pay fines for each offense and thus

received consecutive sentences. They contend that

while the conspiracy involved two substantive offenses,

it was but a single agreement and could not be made the

basis for two separate counts without violating the

double jeopardy clause. They rely on Braverman v.

7.

United States, 317 U.S. 49, 53 (1942). Before the district

court they moved to dismiss the second count. The

motion was denied.

The government's theory at trial was that separate

and distinct conspiracy agreements had been entered

into by McNaughton and his Cyto Pharma group with

respect to smuggling and with respect to receiving and

distributing, and that these appellants joined both

ongoing conspiracies. The government notes that the

objects, members and locales of the two conspiracies

differed and justified a finding of two conspiravies. It

points out that the evidence links some of the cocon-

spirators to the smuggling operation while others are

linked to the distribution operation. Under these facts,

“two distinguishable conspiracies may be charged,

prosecuted and punished when the jury so chooses to

interpret the evidence.” United States v. Arteaga-

Limones, 529 F. 2d 1183, 1194 (5th Cir.), cert. denied, 429

U.S. 920 (1976). There the court stated:

“The objects of the two conspiracies were different

(importation and distribution). The persons

involved were different; for example, the evidence

links Cantu only to the ‘distribution’ portion.

Finally, the locales were different. Castillo’s

account alleged that the importation took place in

the Del Rio area; the distribution began there, but

the ultimate consumers of the marijuana were in

New York.”

8 States v. Arteaga-Limones, supra, 529 F.2d at

1194.

Appellants point out that both conspiracy counts

alleged the same overt acts and identical coconspira-

tors. This does indeed suggest one agreement rather

than two, but is not sufficient to establish that fact as

matter of law. The question whether there was but one

agreement remained one of fact for the jury, United

-8-

States v. Roselli, 432 F.2d 879, 898 (9th Cir. 1970), cert.

denied, 401 U.S. 924 (1971), and was resolved against

appellants by the verdict.

Other Assignments of Error

Richardson and Bowman contend that it was error to

rule that if they took the stand they could be cross-

examined concerning their income tax returns. They

assert that this ruling in effect prevented them from

testifying. The ruling, however, was preliminary and

tentative and did not amount to a denial of right to

testify. See, e.g., United States v. Fulton, 549 F.2d 1325,

1327 (9th Cir. 1977); United States v. Murray, 492 F.2d

178, 197 (9th Cir. 1973), cert. denied, 419 U.S, 942 (1974).

Denial of Salaman’s motion for severance was not

rendered abuse of discretion by the subsequent admis-

sion of evidence against Bradford. No objection was

made to the admission of evidence and the motion for

severance was not renewed at the close of evidence, and

therefore was not preserved on appeal. United States v.

Gaines, 563 F.2d 1352, 1355-56 (9th Cir. 1977).

Appellants Bradford and Salaman urge they were

denied a fair trial by the failure of the trial court to

grant them leave to take the depositions of certain

Mexican nationals. We disagree. It is within the sound

discretion of the trial court to grant or deny a motion to

depose a proposed witness in a criminal trial. See

United States v. Nichols, 534 F.2d 202, 204 (9th Cir.

1976). Federal Rule of Criminal Procedure 15 (a) pro-

vides that a trial court may permit depositions when “it

is in the interest of justice.” It has been held that it

would work an injustice to allow the deposition of

fugitive codefendants. See United States v. Kelly, 349

F.2d 720, 769 (2d Cir. 1965), cert. denied, 384 U.S. 947

(1966); United Stated v. Murray, supra, 492 F.2d at 195.

Three of the Mexican nationals were fugitive

codefendants and one was an unindicted coconspirator

whose location was unknown. Under these circum-

9.

stances it was not an abuse of discretion to deny the

motion to depose. United States v. Murray, supra, 492

F.2d at 195.

Bradford did not move to suppress the fruits of a

search of his car and cannot now, on appeal, raise the

issue of the legality of that search. United States v.

Wysong, 528 F.2d 345, 348 (9th Cir. 1976).

It was not error to deny Salaman's motion for an

order granting use immunity to persons he desired to

call as witnesses. The court has no power to make such

a grant. United States v. Benveniste, 564 F. 2d 335, 339

n. 4 (9th Cir. 1977).

We find no merit whatsoever in Salaman’s conten-

tion that in permitting him to represent himself the

court denied him adequate representation. The court

repeatedly and adequately warned him of the dangers

of self-representation and he repeatedly persisted in

asserting his right to represent himself. See Faretta v.

California, 422 U.S. 806 (1975).

We find no merit in the contentions of Richardson

and Bowman that they were deprived of fair trial by a

cumulation of rulings and incidents during trial, or the

contentions of Bradford and Salaman that there were

numerous instances of prosecutorial misconduct. In

neither instance do we find the cumulation to result in

prejudice of any consequence.

There was no improper prosecutorial comment on

Bradford’s failure to testify. The comment was no more

than an objection to Bradford’s questioning of wit-

nesses in such a leading fashion as to amount to the

giving of unsworn testimony himself and was not of

such a character that a jury would take it as a comment

on the failure of Bradford to testify. See United States

v. Cornfield, 563 F.2d 967, 971 (9th Cir. 1977), cert.

denied, U.S. (1978). In fact, the prosecutor’s

objection was made at a time when it was not yet clear

that Bradford would not testify.

Judgment affirmed.

——ũ— —6 >

10.

FOOTNOTES

1. (Page 1). This classification was challenged by a

group of cancer victims in Rutherford v. United

States, 399 F.Supp. 1208 (W.D.Okla. 1975). There the

district court enjoined the FDA from preventing the

plaintiffs from obtaining Laetrile. The Tenth Circuit

agreed that the FDA had failed to produce an admin-

istrative record to support its classification of

Laetrile as a new drug and remanded for further pro-

ceedings to determine whether Laetrile was “grand-

fathered” under previous Food and Drug Acts. 542

F.2d 1137, 1142 (10th Cir. 1976). The FDA then held

hearings, again finding that Laetrile was an unap-

proved new drug and was not exempt under the

grandfather provisions. On review of that decision,

in Rutherford v. United States, 438 F.Supp. 1287

(W.D.Okla. 1977), the district court found the

agency’s classification to be arbitrary, capricious

and an abuse of discretion because the record 2arly

established that Laetrile was exempt under the 1962

grandfather clause of the FDA. 438 F.Supp. 1287,

1294-98. It enjoined the FDA from enforcing the new

drug statutes in regard to Laetrile, specifically

prohibiting the FDA and the Customs Service from

interfering with the importation of Laetrile. 438

F. Suppl. 1287, 1301.

On the second appeal the Tenth Circuit did not dis-

cuss the grandfather clause issue which formed the

basis of its first opinion in the case, but instead

adopted a new theory, stating:

“We are considering only cancer patients who

are terminally ill and only their intravenous use

of Laetrile. * * * What meaning can ‘effective’

have in the absence of anything which may be

used as a standard? Under this record Laetrile is

as effective as anything else. What can ‘effec-

tive’ mean if the person, by all prevailing

-ll-

standards, and under the position the Commis-

sion takes, is going to die of cancer regardless of

what may be done. Thus there has been no

standard here advanced by the Commission

against which to measure the safeness or effec-

tiveness of the drug as to the plaintiffs. Clearly

the terms have no meaning under these circum-

stances, and certainly not the abstract meaning

sought to be applied by the Commission, * * *

* *

Therefore, we hold as a matter of law that the

‘safety’ and ‘effectiveness’ requirements of the

statutes as now written have no application to

terminally ill cancer patients who b to take

the drug intravenously.”

F. 2d (10th Cir. July 10, 1978). Thus

the Tenth Circuit did not decide whether the district

court was correct in holding that Laetrile could not be

classified as a new drug.

2. (Page 4) Other convictions for smuggling Laetrile

have recently been affirmed by this court. United

States v. Luther, 521 F.2d 408, 409 (9th Cir. 1975);

United States v. Westover, 511 F.2d 1154, 1156 (9th

Cir.), cert. denied, 422 U.S. 1009 (1975).

. (Page 5) On this defense and on that of government

misconduct, appellants sought to introduce much

evidence bearing on the validity of Laetrile as a

cancer drug and their contentions that the FDA

classification was improper. The district court, after

hearing, refused to allow the evidence to be intro-

duced. Appellants assign this as error. Appellants

were allowed to make an extensive offer of proof,

however. For the reasons set forth in our opinion the

defenses were not available and the offered proof was

not relevant.

-12-

4. (page 6) We refer to a few among many items.

Salaman both received and shipped packages of

Laetrile with false identifying information. One

courier testified to making deliveries to Salaman at

the airport in San Jose where she would be driven to

a secluded part of the airport and would be paid in

cash. On one trip, when Salaman refused most of the

shipment, the courier asked, How do you expect me

to pay the people that smuggled it?”

Bowman told an IRS agent that two checks on

Richardson’s account made out to cash were used to

pay for the smuggling of Laetrile into the United

States. Over 90 percent of the Laetrile used by

Richardson was manufactured at Cyto Pharma.

There was evidence that his account at Cyto Pharma

was personally handled by one of the Del Rio

brothers. There was evidence that he once told a

coconspirator that he obtained his Laetrile in the

same way that appellant Bradford obtained his.

Since, as appellants complain in discussing other

assignments of error, it was not possible to get

Laetrile across the Mexican border without smug-

gling it, it would seem most unlikely that Richardson

and Bowman did not know that they were dealing

with smuggled goods.