Petition — Jackson v. United States

Supreme Court brief1979

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78-1524

IN THE SUPREME COURT OF THE

OCTOBER TERM, 1979

NO.

EARNEST JACKSON, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES R. WILLIS, ESQ.

Bond Court Building, Suite 1609

1300 East Ninth Street

Cleveland, OH 44114

216/523-1100

Attorney for Petitioner

eet ee re Ee em te

TABLE OF CONTENTS

TABLE OF 45 9 8 oS - Fe -V-

OPINIONS D's bb eebeese6668¢6666068 2

DI Each hae Ge ceeceecesceseoes 2

QUESTIONS INVOLVED. ....---eeeeeeees 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. eeeeee#e#e#*# 4

STATEMENT OF THE CASE....-.cccecces 6

I. History of the Case....... 6

II. Statement of Facts........ 7

ARGUMENTS RELIED ON FOR

ALLOWANCE OF a 16

The Intentional And

Surreptitious Eaves-

dropping On Petitioner's

Conversations, By Agents

And Police Who Occupied

An Adjoining Hotel Room

For That Precise Purpose,

Under The Facts Here,

Violated His Fundamental

Right To Privacy......... 16

iI. An Accused Is Entitled

To Bolster His Credibi-

lity By Producing Evi-

dence Showing That

His Reputation For

Truth And Veracity Is

GOOG ce wcsccsvecsecccosneccesse 26

-i-

IIt.

LV «

The Due Process And Fair

Trial Rights Of A Defen-

dant Are Offended Where

The Prosecutor Elicits

Highly Prejudicial

Testimony Which Has

Absolutely No Probative

VERLGRN caiceadecowe Chase ess

The Hearsay Rule And The

Accused's Right Of Con-

frontation Can Not Be

Circumvented So As To

Allow The Parrotting

Of Statements Attributed

To Unidentified, And

Unidentifiable, Third

PORCIEM s.6sc Kae nei de ewsces

A. Where the dominant

purpose of certain state-

ment made by a nontesti-

fying "declarant" is as

proof of the matter

asserted therein, and

such statements are so

used by the prosecutor

(in his summation) and

by the jury (in its deli-

berations), such state-

ments must be viewed as

hearsay within the meaning

of Rule SOL IG) 6 0 oie eee ed

B. The fact that evidence

may be admissible as an

exception to the hearsay

rule does not automatic-

ally qualify it for

admission; the accused's

right of confrontation

must also be satisfied...

(1)

(2)

(3)

Where evidence is

offered against an

accused that cannot

be cross-examined,

the prosecution must

demonstrate such

evidence had an inde-

pendent "indicia of

reliability.".......

The admission of an

extrajudicial state-

ment imputed by a

prosecution witness

to a nontestifying

declarant, which

statement was

"crucial" to the

prosecution and

"devastating" to the

defense, constitutes

a violation of the

right of confron-

CACION . ccccemrmecccecce

Where evidence is

admitted as substan-

tive proof, and infer-

entially so regarded

by the Government, the

jury and the Court; it

is “unfair for a

reviewing court to

consider such evi-

dence for any narrower

purpose than that upon

which the testimony

was unquestionably

offered and received

at the trial.”......

-iii-

TABLE OF AUTHORITIES

(4) Where the prosecution

introduces evidence : Cases Page

j if admissible

prayers Ba? ake proper Alderman v. United States,

when used in a higly 394 a 171 TS 6 sn ka 6 & 6 ok 23

ate apt gsaTig ys re ; | Bielicki v. Superior Court

£ r limited awe ot ° <YV' ’

pose pagel a Bi tig 57 Cal.2d 602, 371 P.2d 288

scribed, purpose; a CA a 2 bee ub eRe OR ee ere see 23

mandatory duty des-

cended upon the court California v. Green,

to inform the jury | DOU Wiese SEN CAGTO) Ss cc cacceee 3

: = did not have the

peri? use ri Combs v. United States,

such evidence and that 408 U.S. 224 ). OSA 24

it had to be utilized

for the limited pur- Couch v. United States,

pose ONLY. ccccccvves 52 409 U.S. 165 PS a ok} 04% 6a W's 24

: Diaz v. Southern Drilling Corp.

Va The Trial Court Erred In | .

Denying The Petitioner's | of Argentina, 449 F.2d 258

Motion For Judgment Of TOU, SB UAd eek vawdecciecds €1

A i Made At Th

eee oe hae aed | Dutton v. Evans, 400 U.S. 74 (1970) 35

Case, And Renewed At The |

Close Of All The Evidence In Re Winship, 397 U.S. 358 (1970). 34

Pp -Ve j Ceccvccscvecce 54

And’ Post-Verdic Katz v. United States,

CONCLUG ION. cocccsesisssneeeenans eee 56 | 389 U.S. WEE MAME) 665 vc om Wes 16

; Lutwak v. United States,

senbetiacae BOE 0.0. WOE CLSSS) ccccccccene 34

Appendix "A": Order of Fifth

; ; : : ae Mancusi v. DeForte

Circuit Denying Rehearing : — ’

En Bant......: ee 58 / Pee Wee SOO LAPGE a siccewcccccse 23

Appendix "B": Opinion of the | Mer US ey eae 408 U.S. 204

Fifth Circuit « .ésikenu owen 59 7 ( Aes a Sa 36

Michelson v. United States,

335 U.S. 469, 69 S.Ct. 213

NN Se ere ae eee eg 26

PEE

Park v. Huff, 506 F.2d 849

(5th Csr . 1975) eoeeeee eoseeeeveveee

Regalado v. California,

374 U.S. 497 (1963)....---eeee

Shepard v. United States,

290 U.S. 96 PAPeES conve veewexe

Texas v. Gonzales, 388 F.2d 145

COC Dare LOSE cccccccesceeces

United States v. Annunziato,

293 F.2d 373 (2d Cir. 1961)...

United States v. Brown,

S90 2.40 (oe. toc. Cix. 1973).

United States v. Cain,

‘ 587 F.2d 677 (5th Cir. 1979)..

United States v. Caracci,

€66 Vesa zis (5th Cir. 1971)...

United States v. Carriger,

541 F.2d 545 (6th Cir. 1976)..

United States v. Check,

982 F.2d 668 (2d Cir. 1978)...

United States v. Choate,

422 F. Supp. 261 (C.D. Cal.

BOTE 6644046) CdS OR e OC e0 ue e*eeee#*ee#*es

United States v. Cook, 461 F.2d 906

(Sth Cir. 1972)..... ee eecees a

United States v. Crosby,

294 F.2q 928 (2a Cir. 1961)

cert. denied, 368 U.S. 984

$0) & 5 Beppe rer a e*eee#ees eee

United States v.

DeLutro,

435 F.2d 255 (2d Cir. 1970)...

United States v.

Fisch,

474 F.2d 1071 (9th Cir.) cert.

denied, 412 U.S. 921 (1973)...

United States v.

Ford,

324 F.2d 950 (7th Cir. 1963)..

United States v.

Gomez,

529 F.2d 412 (5th Cir. 1976)..

United States v.

Hannah,

584 F.2d 27 (3rd Cir.

United States v.

Hickman,

1978)...

426 F.2d 515 (7th Cir. 1974)..

United States v.

Hicks,

420 F.2d 814 (5th Cir. 1970)..

United States v.

Howard,

449 F.2d 308 (5th Cir. 1971)..

United States v.

Johnson,

427 F.2d 957 (5th Cir. 1970)..

United States v.

Kim,

415 F.Supp. 1252 (D.c. Hawaii

1976) .. cece

United States v.

Koch,

113 F.2d 982 (2d Cir.

United States v.

Lechoco,

1940)...

542 F.2d 84 (D.C. Cir. 1976)..

United States v.

Mandell,

437 F.Supp. 262 (D.C. Md.

A977) ocveos

-vii-

United States v. McClain,

400. 7.4a 244..(0.C.. Cit. I97TL).

United States v. Menichino,

497 F.2d 935 (5th Cir. 1974)..

United States v. Moore,

505 F.2d 620 (5th Cir. 1975)..

United States v. Shimon,

"352 F.20 449 (D.C. Cir. 1965).

United States v. United States

District Court, 407 U.S. 297

(1972). e*eee#e eeeeee#e#se#kee#ee#e####8#8e#e#e#

United States v. Zeuli,

137 F.2d 845 (2d Cir. 1941)...

Constitutional Amendments

Amendment IV........ eee eee Tee 6 ag?

Amendment VI ee 832d 64 eo FP 9 O28 , awe SS eS | .

Rules and Statutes

Rule 404, Federal Rules of Evidence

Rule 608, Federal Rules of Evidence

Rule 801, Federal Rules of Evidence

21 U.S.C. SSG Lic tsi cenboecewenrsseee

21 U.S.C. $846... cee eeceee eeeccee

28 U.S.C. §1254(1).... oeeee eoeeeeeee

-viii-

Texts and Publications

McCormick, Evidence, §39....ccccece

Morgan, A Suggested Classification

Of Utterances Admissible As

Res Gestae, 31 Yale. L.J. 229

FES] ve scdvecsiedscsesveccees

Weinstein, Evidence, §80l...... Meee

Wright, Federal Practice and

Procedures, Vol. 2 §409

th) 7 eA oeweeeeeee ee eeeee

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, i979

NO.

EARNEST JACKSON, IR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Honorable, the Chief Justice and

Associate Justices of the Supreme

Court of the United States:

Petitioner prays that a writ of

certiorari issue to review the segment

of the judgment of the United States

Court of Appeals for the Fifth Circuit

entered in this case that affirmed

petitioner's conviction in the District

Court for the Northern District of

Alabama on a charge of conspiracy to dis-

tribute heroin, in violation of 21 U.S.C.

§846.

OPINIONS OF THE COURTS BELOW

The opinion of the United States

Court of Appeals for the Fifth Circuit

is reported at 588 F.2d 1040 (5th Cir.

1979) and is set forth in the Appendix,

infra, p.59 . No opinion was reported

in the District Court.

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

The judgment of the Court of Appeals

was rendered on February 2, 1979

(Appendix "B", infra, p. 59). Petitioner

seasonably filed a petition for rehearing

en banc. On March 7, 1979, the court

below denied the petition for rehearing.

Appendix, infra, p. 58.

This petition seeks review of the

judgment of a United States Court of

Appeals in a criminal case. This Court

has jurisdiction to grant this petition

under 28 U.S.C. §1254(1).

STATEMENT OF QUESTIONS INVOLVED

Whether the intentional and surrep-

titious eavesdropping on petitioner's

conversation, by agents and police who

occuped an adjoining hotel room for that

precise purpose, under the facts here,

violated his fundamental Fourth Amendment

right to privacy?

ho amen a

Whether an accused is entitled to

bolster his credibility by producing

evidence showing that his reputation for

truth and veracity is good?

III.

Whether the due process and fair

trial rights of a defendant are offended

where the prosecutor elicits highly pre-

judicial testimony which has absolutely

no probative value?

Iv.

Whether the hearsay rule and the

accused's right of confrontation can be

circumvented so as to allow the parrot-

ting of statements attributed to uniden-

tified, and unidentifiable, third

parties?

Whether the trial court erred in

denying the petitioner's motion for

judgment of acquittal, made at the

Close of the Government's case, and

renewed at the close of all the evidence

and post-verdict?

CONSTITUTIONAL AND STATUTORY PROVISIONS

WHICH THE CASE INVOLVES

United States Constitution:

Amendment IV:

"The right of the people to be se-

cure in their persons, houses, papers,

and effects, against unreasonable

searches and seizures, shall not be

violated, and no Warrants shall issue,

but probable cause, supported by Oath

or affirmation, and particularly describ-

ing the place to be searched, and the

person or things to be seized."

Amendment VI:

"In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an impartial

jury of the State and district wherein

the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed

of the nature and cause of the accusa~-

tion; to be confronted with the witnesses

against him; to have compulsory process

for obtaining witnesses in his favor,

and to have the assistance of counsel

for his defense."

21 United States Code:

§641 (a) (1):

"Except as authorized by this title,

it shall be unlawful for any person know-

ingly or intentionally--

(1) to manufacture, distribute,

or dispense, or possess with in-

tent to manufacture, distribute,

or dispense, a controlled sub-

stance[.]"

§846:

"Any person who attempts or con-

spires to commit any offense defined in

this subchapter is punishable by impri-

sonment or fine or both which may not

exceed the maximum punishment prescribed

for the offense, the commission of which

was the object of the attempt or con-

spiracy."

STATEMENT OF THE CASE

I. History of the Case

The petitioner, Earnest Jackson, Jr.

was convicted in the United States

District Court (for the Northern District

of Alabama) following a jury trial pre-

sided over by Chief Judge Frank H.

McFadden. The indictment charged

Jackson and James Porter (his co-

defendant at the trial) as having con-

spired, in violation of 21 U.S.C. §846,

to distribute heroin. And, it charged

them with possession with intent to

distribute heroin in violation of 21

U.S.C. §841(a).

On appeal, a panel of the Fifth

Circuit Court of Appeals, while affirm-

ing both Jackson's and Porter's con-

victions for conspiracy, reversed their

conviction for possession--the sole sub-

Stantive offense charged in the indict-

ment. The effect of this determination

is that Jackson's original sentence,

which aggregated twenty-seven (27) years,

would be reduced to twelve (12) years,

and his fine reduced from $40,000 to

that of $15,000.

1/ References to the Appendix to the

Appellate Court Brief are designated

(App., p. ..). References to the Tran-

script of Proceedings in the District

Court are designated in this Petition

a oe eee

a nn —

II. Statement of Facts

(1)

The indictment herein charged that

Jackson (the petitioner) and Porter con-

spired to distribute approximately

934.5 grams of heroin, and it charged

that Jackson and Porter possessed, with

intent to distribute and dispense, the

same 934.5 grams of heroin.

The evidence disclosed that on or

about June, 1977, Linda Johnson (herein-

after Johnson) had an occasion to meet

Porter in Los Angeles, California.

Thereafter, Johnson traveled from

Los Angeles to Birmingham, Alabama on

July 7, 1977, transporting the heroin

laden bag. She was met at the airport

by Porter.

Prior to July 7, Jackson and Miss

Beverly Pertilla checked into the Kahler

Plaza Hotel, Room 312, on July 4, 1977.

Thereafter, Drug Enforcement Administra-

tion Special Agent Hahn established a

"command post" in Room 314 adjacent to

Jackson's room for the admitted purpose

of eavesdropping on Jackson's conversa-

tions. On the morning of July 7, 1977,

Porter and Jackson traveled to the

Birmingham Municipal Airport and were

subsequently arrested therein.

Special Agent Larry Hahn, based

upon his eavesdropping, had obtained

search warrants dated July 7 and July 8

relating to a certain unclaimed suitcase

at the airport and Room 312 of Kahler

Plaza Hotel respectively.

Neither Jackson nor Porter claimed

the suitcase or otherwise had it in

their actual or constructive possession.

The suitcase was ultimately seized by

Drug Enforcement Administration Agents

from the unclaimed baggage area of

Birmingham Municipal Airport.

Jackson filed a variety of pretrial

motions. These included a Motion to

Suppress. This motion specified as

grounds therefor, inter alia:

Ae The warrants issued by the

United States Magistrate

separately and severally were

issued upon affidavits insuf-

ficient as a matter of law.

ai The search warrants were

invalid and improperly issued

in each instance.

36 Statements contained in the

affidavits relating to things

done and matters alleged to be

factual were mere conclusions

premised upon speculation,

hearsay, and illegal evidence

unlawfully and unconstitution-

ally obtained.

Apparent from the face of the two

Affidavits precipitating the search of a

suitcase on July 7, 1977 and the search

of the hotel room on July 8, 1977, and

the Suppression Hearing Transcript (Tr.,

pp. 3-223); certain factual matters are

clear beyond dispute.

Special Agent Larry Hahn (herein-

after Hahn) of the Drug Enforcement

Administration (hereinafter DEA) had

been investigating Jackson for a period

of time exceeding three years (Tr.,

p. 17). Throughout said investigation,

including numerous surveillances of

Jackson's conduct and activities,

neither Hahn nor any other DEA agent had

ever observed Jackson in possession of,

receiving, giving, passing heroin or

otherwise trafficking in narcotics

by ee PP- 18-19).

Moreover, prior to the surveillance

of July 6-7, 1977, and prior to the

arrest of Jackson and Porter and seizure

of heroin on July 7, 1977, the DEA had

no information that a shipment of contra-

band was, in fact, arriving in Birmingham

in the morning hours of July 7, 1977

(Tr... Pe 29).

All pertinent and verifiable infor-

mation relating to the charges in this

case transpired between July 5, 1977 and

July 8, 1977. These are the dates

Jackson and an unidentified, at that

time, female checked into Birmingham's

Kahler Plaza Hotel, and the search of

Jackson's room therein-Room No. 312,

respectively. No significant leads were

developed until July 6, 1977, when Hahn

and other agents rented a room at Kahler

Plaza. This room was directly adjacent

to Jackson's room, from which they

supposedly heard conversations occurring

therein underneath the doors connecting

the rooms. The substance of overheard

conversations are contained in the

Search Warrant Affidavits dated July 7,

and 8, 1977.

It is readily apparent that if the

conversations, and information gained

therefrom, were excised from the Affi-

davits, not even a shred of probable

cause would exist.

Hahn's reason for selecting the

room adjacent to their target, Jackson,

was emphatically stated as follows:

"Well, we entered that room more

or less as a command post, be-

cause it was, it was an adjoining

room and it was close to--we

were able to hear people coming

in and out of the room and so

forth. Of course, once we were

in there, we could, we deter-

mined that we would overhear

conversations through the door."

(Tr., p. 20 [emphasis added].)

But even this is not all. This witness

emphasized the complaint here being made

to this Court, by testifying further

that, "[w]e listened by putting our ear

to the crack at the bottom of the door"

(Tr., p- 39), an eavesdropping position

that permitted them to willfully inter-

cept and monitor even indications of

sexual activity that took place in this

room (Tr., p. 45) The fact that this

occurred without any attempt at even

token minimization is surely an aspect

of this issue.

In further describing the officers'

surveillance procedure, Sergeant Trucks

testified, he "put a pillow on the floor

ae ye

next to the door... with his ear against

the door" (Tr., p. 205). As put by

Trucks, he was “able to overhear as he

lay fon the floor] with his ear pushed

against the crack in the door" (Tr.,

p. 195).

(2)

Through its first witness, Beverly

Pertilla, the Government intentionally,

and in our judgment with calculated

design, elicited improper testimony.

The petitioner contends that inasmuch: as

this highly prejudicial evidence lacked

any probative value, it formed a suffi-

cient basis for a mistrial--a motion for

which was denied. The Court of Appeals,

while crediting our contention that

these questions were prejudicial, sacri-

ficed Jackson by classifying the error

as harmless.

(3)

Next, through the testimony of

Government witness Linda Johnson, the

person who transported a suitcase from

Los Angeles, California to Birmingham,

Alabama, unknowing the same to contain

heroin, the Government was permitted to

victimize Jackson by the use of some

highly prejudicial hearsay statements.

These statements were obviously designed

to "tie" Jackson to the heroin laden

suitcase through his co-defendant, Porter.

The pertinent hearsay testimony in

issue here is reflected in the following

excerpt of the Transcript:

Q (Government) When did you

next hear the name Jackson

mentioned relative to a trip

to Alabama?

A You mean, before I came here,

when did I hear?

Yes, ma‘am.

A A lady came by.

* * *

Q What, if anything, did she

tell you to do, with respect

to the bag that she gave you?

A She told me to pack it, you

know, and I did.

Q When did she tell you to take

a flight to Birmingham, if she

did?

MR. SHEFFIELD: Your Honor, I

would like to interpose an object-

ion, the conversation -- would you

like for me to approach the bench?

THE COURT: Just state the

grounds of your objection and if we

need to --

MR. SHEFFIELD: Third party

conversations outside the presence

of any of the two defendants. This

individual is net named in the

indictment as a co-conspirator.

THE COURT: Overruled.

oo F* 8: ?

Your

Do you know who this person

was?

I didn't know her.

Had you ever seen her before?

No.

Do you have a recollection of

what her name was?

Doris or Dorothy. I just saw

her briefly.

Do you know what her last name

was?

No.

Did the lady who gave you --

Dorothy or Doris, who gave

you the money, tell you who

you would be met in Birmingham

by?

MR. SALTER: Same objection,

Honor.

THE COURT: Overruled.

Were you told who would meet

you?

She told me that James Arthur

would pick me up at the air-

port.

(tr. , Pp. 386-388) .

It could not be clearer the state-

ments attributed by this Government

witness to some unidentified black female

were hearsay of the rankest sort. For

obviously, there was no showing that this

so-called "Doris or Dorothy" had any

guilty knowledge, or that she otherwise

qualified as a conspirator, so as to

impute her statements, if made, through

Porter to Jackscn. In addition, the

admission of this evidence violated

Jackson's Sixth Amendment right of

confrontation.

(4)

During the trial of this cause,

the petitioner elected to testify in his

own defense. He specifically refuted

the allegations of the indictment (Tr.,

pp. 804-881). Additionally, he empha-

tically disputed numerous segments of

the testimony rendered by the prosecu-

tion's chief, and essential, witness.

Thereafter, Jackson called as a witness

in his behalf one Rubin Davis. Jackson's

trial attorney asked the following

question (Tr., p. 883):

Q At the time and under the

circumstances and way that

you have come to know Earnest

Jackson, Jr., have you come

to form an opinion as _ to

his character for truthfulness

and veracity? (Emphasis

added. )

The following colloquy ensued between

counsel and the court (Tr., pp. 883-

888):

A I would have no reason to --

Ber nr anette ars.

THE COURT: Now, just a

minute.

Q Have you come to form an

opinion?

A Yes, sir.

And what is that opinion?

My opinion that he is --

MR. BARNETT: We object to

this and ask to approach the bench.

THE COURT: Yes, sir.

MR. BARNETT: Apparently

counsel has asked the question to

support his character with refer-

ence to truth and veracity which

has not been placed in attack by

the United States Government by the

indictment. The indictment doesn't

put that trait or any character

trait in question in the case be-

fore the Court.

THE COURT: Truthfulness

is not an issue in the lawsuit.

The Government has not put his

character in issue.

I will sustain the objection.

(Emphasis added.)

ARGUMENTS RELIED ON FOR ALLOWANCE

OF WRIT

The Intentional And Surrep-

titious Eavesdropping On

Petitioner's Conversations

By Agents and Police Who

Occupied an Adjoining Hotel

Room For That Precise Purpose,

Under The Facts Here,

Violated His Fundamental

Fourth Amendment Right To

——

Privacy.

The intentional and surreptitious

listening to Jackson's conversations by

Special (DEA) Agent Larry Hahn, while

specifically stationed in an adjacent

hotel room expressly for that purpose,

was a clear, overt violation of Jackson's

constitutional right to privacy. See

Katz v. United States, 389 U.S. 347

(1967).

In Katz, this Court directed its

attention to an aspect of the precise

issues raised herein. In reversing

Katz' conviction, the Court, in essence,

held that: the government's activities

in listening (in that case, electronic-

ally) to and recording Katz' words,

spoken in a public telephone booth, vio-

lated his justified expectation of pri-

vacy. Such eavesdropping, it was said,

amounted to a "search and seizure" with-

in the Fourth Amendment. The lack of

"penetration" of the booth by the tools

used was deemed immaterial since the

"Fourth Amendment protects people, not

places." In our view, the upshot of

of Katz is that the eavesdropping without

prior judicial sanction, approval and

attendant safeguards, violates constitu-

tional standards. If this is so, it

should follow that these agents were

required to obtain court authorization

to engage in the type of intrusion in-

volved in this case.

Stated another way, the sanctity

of privacy underlying the Court's deci-

sion in Katz, supra, along with an

apparent concern for attendant consti-

tutional safeguards (e.g., prior authori-

zation, restraint, etc.) embodied and

represented in that part of Title III

Omnibus Crime Control and Safe Streets

Act of 1968, commonly known as the

Federal Wiretapping Statutes, 18 U.S.C.

§§2510-2520 should mandate this result.

While in the case at bar there were

no electrical devices used, or mechanical

recordations made of Earnest Jackson,

Jr.'s conversations, it is certainly

clear he had a reasonable and justified

expectation of privacy with reference to

the telephone and other conversations

Overheard as a direct consequence of the

willful design by these Government agents.

More simply put, their purpose was "in-

vestigation" and "surveillance" of

Earnest Jackson. To this end, they

specifically turned an adjacent hotel

room into a “command post" for their

investigation and surveillance activi-

ties. Not only this, a substantially

contemporaneous memorandum of the con-

versations supposedly overheard is

contained in the two pertinent Affidavits

for Search Warrant herein. Many are

identified as specific quotations of

statements made by Jackson.

Obviously then, without these

conversations and "fruits", there is no

probable cause on the face of the

Affidavits. It is equally clear that

there was no prior impartial and detached

determination as to the propriety of, or

authority to use, the methods herein

being assailed. Nor was there sufficient,

if any, minimization during the eaves~-

dropping itself. Rather, the methods

exploited here were simply the result of

an arbitrary decision by a Government

investigative unit in a general surveil-

lance investigation. This is so despite

the fact, as the Transcript reveals,

there was a complete lack of any infor-

mation, from any source, that Jackson's

presence in the Kahler Plaza Hotel was

related to drug trafficking. Simply put

then, the agents merely singled out the

petitioners because of their longstanding

suspicions.

In our view, a number of this

Court's holdings in Katz appear applica-

ble and dispositive to the issues herein.

Here, reference is made to the following

specific tenets:

"(T]he Fourth Amendment pro-

tects people, not places. What a

person knowingly exposes to the

public, even in his home or office,

is not a subject of Fourth Amendment

protection (citations omitted).

But what he seeks to preserve as

private, even in an area accessible

to the public, may be constitution-

ally protected (citations omitted).

389 U.S. at 351-352.

* * *

One who occupies [a phone

booth], shuts the door behind hin,

and pays the toll that permits him

to place a call is surely entitled

to assume that the words he utters

into the mouthpiece will not be

ee to the world. 389 U.S. at

* * *

----(O]nce it is recognized

that the Fourth Amendment protects

people - and not simply "areas" -

against unreasonable searches and

seizures, it becomes clear that the

reach of the Fourth Amendment

cannot turn upon the presence or

absence of a physical intrusion

into any given enclosure. 389 U.S.

at 353.

* * *

The Government urges that

because its agents relied upon the

decisions in (citations omitted),

and because they did no more than

they might properly have done with

prior judicial sanction, we should

retroactively validate their conduct.

That we Cannot do. it is apparent

that the agents in this case acted

with restraint, yet the inescapable

fact is that this restraint was

imposed by the agents themselves,

not by a judicial officer. 389

U.S. at 356.

* * *

~..-Searches conducted without

warrants have been held unlawful

"notwithstanding facts unquestiona-

bly showing probable cause" (cita-

tion omitted), for the Constitution

requires "that the mandate of the

[Fourth] Amendment requires adher-

ence to judicial process" (citation

omitted), and that searches con-

ducted outside the judicial process,

without prior approval by judge

Or magistrate, are per se unrea-

sonable under the Fourth Amendment--

subject only to a few specifically

established and well-delineated

exceptions.

* * *

It is difficult to imagine how

any of those exceptions could ever

apply to the sort of search and

seizure involved in this case. 389

U.S. at 357." (Emphasis supplied.)

This brings us to the statutory

procedure permitting electronic sur-

veillance precipitated by Katz. Here,

even a casual review of 18 U.S.C.

§§2510-2520 shows these enactments were

designed to insure that adequate consti-

tutional safeguards be employed before

there is any invasion into the privacy

of private conversations. While these

statutes specifically relate to, the

interceptions by means of electrical or

mechanical devices, the spirit and

thrust of Katz is clearly manifested.

Obviously, the requirements that

there be judicial intervention, minimi-

zation, and exhaustion of other reason-

able investigative measures indicating

the need for such extreme invasions of

privacy clearly comports with axiomatic

principles of constitutional law--none

of which were vindicated by the eaves-

droppers in the case at bar.

We are not here presented with a

misplaced trust on the part of Jackson,

as in the circumstances when a defendant

makes damning statements to a cooperating

co-defendant, e.g., United States v.

Hickman, 426 F. 515 (7th Cir. 1970);

a "victim", e.g., United States v.

DeLutro, 435 F.2d 25 Cir. 1970); or

an undercover agent, e.g., United States

v. Caracci, 446 F.2d 173 (5th Cir. 1971).

Rather, he believed and had a justifiable

expectation for privacy in the hotel room

he had secured as to all matters occur-

ring therein. The spirit and principles

of the Fourth Amendment, as explicated

and construed in Katz, governs all gov-

ernmental invasions of privacy, particu-

larly oral conversations. This being so,

they demand protection from abuse such

as is present here.

Prior to Jackson, no Fifth Circuit

case presenting facts reasonably compara-

ble to those in this case had been de-

cided. On the other hand, United States

v. Fisch, 474 F.2d 1071 (9th Cir.) cert.

denied, 412 U.S. 921 (1973) and United

States v. Kim, 415 F.Supp. 1252 (D.C.

Hawaii, 1976) both dealt specifically

with the type of eavesdropping here

involved. Also see United States v.

Choate, 422 F.Supp. 261 (C.D.Cal. 1976).

In Fisch, as was the case here,

federal agents mechanically arranged to

locate themselves in a hotel room adjoin-

ing the defendants, for the sole purpose

of listening in on their conversations.

After noting, as was the case here, that

there was no bugging by electronic means

and no trespassing involved (see United

States v. Carriger, 541 F.2d 545 [6th

Cir. 1976]); the Ninth Circuit postured

its decision on a determination as to

whether (under Katz) the speaker had

"'justifiably relied' on his privacy"

(474 F.2d, at 1076), and whether his

subjective expectations of privacy were

"justifiable, ‘one that society is

prepared to recognize as reasonable

(474 F.2d, at 1077).

While the court found the statements

in Fisch failed in both of these parti-

culars, it is important to note the

court fully credited a circumstance not

present here--that is, that the critical

conversation was audible enough to be

heard by one sitting "on the bed in the

middle of the room" (ibid). Obviously

then, it was for this reason the Fisch

court determined that, on balance,

"[t]here ha[d] been no justifiable

reliance" on any right of privacy (id,,

at 1078).

As to United States v. Kim, supra,

the court there was concerned with a

situation where, as was the case here,

there was no trespass upon private

property. More specifically, the court

viewed peering into one's home in quest

of evidence to be a violation of privacy.

What is even more significant to this

case, the court in Kim recognized that

“({a]jfter Katz, the concept of curtilage

and the presence or absence of a physical

intrusion can have 'no constitutional

significance’ in determining whether or

not a search has taken place" (415 F.

Supp., at 1255). But even this is not

all. The court further determined that

Kim's "subjective expectations of pri-

vacy" were not forfeited because "he

did not draw his curtains and also be-

cause he himself used binoculars from his

Own window, allegedly to determine if he

was under surveillance." Id., at 1256.

Distilled, Katz (as it now stands)

expands the concepts of "protected

areas" by bringing within the ambit of

Fourth Amendment control any surveil-

lance by law enforcement officers that

offends an individual's “reasonable ex-

pectation of freedom from governmental

intrusion," Mancusi v. Deforte, 392 U.S.

364, 368 (1968), even in public areas.

Cf, Bielicki v. Superior Court, 57 Cal.

2d 602, 37 371 P.2d 288 (1563) ta: P.2d 288 (1962) (an occupied

public lavatory cabinet).

Viewed in this light, the point be-

ing urged here is that if the Fourth

"Amendment... [still] affords protection

against the uninvited ear" (Alderman v.

United States, 394 U.S. 171 [1969]),

where (as here) it is shown that the

"uninvited ear" is purposely engineered

into "protected areas"--that is, into

an area where such intrusion is justifia-

bly not expected--such an act should be

deemed impermissible. Indeed, if it

were otherwise, there seemingly would be

no way to justify other holdings by this

Court in certain significant non-

electronic, non-trespassory surveillance

cases. Here, emphasis is being given to

the Court's reference to Katz's legiti-

mate expectation of privacy formulation

in Mancusi v. Deforte, 392 U.S. 364, 368

(1968); Combs v. United States, 408 U.S.

224, 227 (1972) and Couch v. United

States, 409 U.S. 165, 171 (1969). Also

see, Regalado v. California, 374 U.S.

497 (19 and Texas v. Gonzales, 388

F.2d 145 (5th Cir. 1968). (In Regalado,

decided prior to Katz, the Fifth Circuit

viewed surveillance through peepholes

drilled in a hotel door, apparently a

collaborative effort of the police and

the hotel management, as a Fourth Amend-

ment search. Gonzales, which interest-

ingly enough was decided by the same

court, subsequent to Katz, seemingly

would limit the "plain view aspect of

these situations to those things that

are indiscriminately exposed to public

scrutiny.)

Petitioner finally directs the

Court's attention to United States v.

United States District Court, 407 U.S.

297, 316-317 (1972). Here, it was

stressed that:

",...-Fourth Amendment freedoms

cannot properly be guaranteed if...

surveillances may be conducted sole-

ly within the discretion of the

Executive Branch. The Fourth

Amendment does not contemplate

the executive officers of Govern-

ment as neutral and disinterested

Magistrates. Their duty and re-

sponsibility are to enforce the

laws, to investigate, and to

prosecute. Katz v. United States,

au Ea. at 359-360, 88 S.Ct. at

16 (Douglas, J., soi on, FE

ace those charged with this investi-

—— 7 eer

gative and prosecutorial duty

should not be the sole judges

of when to utilize constitution-

ally sensitive means in pur-

suing their tasks. The historical

judgment, which the Fourth Amend-

ment accepts, is that unreviewed

executive discretion may yield

too readily to pressures to obtain

incriminating evidence and over-

look potential invasions of pri-

vacy and protected speech." Id.,

at 316-317.

Despite the efficacy of the above

reasoning patterns, the Fifth Circuit

was unpersuaded. The position it took

was that Jackson and his female guest

could not possibly have had any "justi-

fiable expectation of privacy with

respect to their motel room conversations

which were audible to the unaided ears of

the Government agents lawfully occupying

an adjoining room." Jackson, 588 F.2d,

at 1051. As they saw it, our objections

to the seizure of these conversations

could be resolved on the basis of a

"plain view" type analysis. Id,,at 1051l-

1052. But even this is not all. The

court expressly refused to credit as a

relevant consideration the fact that

these officers willfully sought to

eavesdrop: a fact which they could only

accomplish, with any real hope of

success, by actually laying on the floor

with their ear almost literally at the

crack between the bottom of the door and

the floor.

In our judgment, this type of con-

duct by agents of our Government ought

not be resolved on a Machiavellian thesis

as was so obviously done here.

An Accused Is Entitled

To Bolster His Credibility

By Producing Evidence

Showing That His Reputation

For Truth And Veracity Is

Good.

It is too well-settled to require

citation of authority that an accused's

character, disposition and reputation

may not be put in issue in the prosecu-

tions case-in-chief. "The overriding

policy of excluding such evidence... is

the practical experience that its dis-

allowance tends to prevent confusion of

issues, unfair surprise and undue preju-

dice." Michelson v. United States,

335 U.S. 469, 69 S.Ct. 213, 218 (1948).

The pronouncements of Michelson remain

untarnished by subsequent decisions and

are directly applicable herein.

Michelson firmly establishes the

absolute right of a defendant to place

his "character" in issue. Here, it was

stated:

"But this line of inquiry

firmly denied to the State is

opened to the defendant because

character is relevant in resolv-

ing probabilities of guilt. He

may introduce affirmative testi-

mony that the general estimate

of his character is so favorable

that the jury may infer that he

would not be likely to commit

the offense charged. This privi-

lege is sometimes valuable to a

defendant for this Court has held

that such testimony alone, in

some circumstances, may be enough

to raise a reasonable doubt of

guilt and that in the federal

courts a jury in a proper case

should be. so instructed. (335

U.S., at 476.)

* * *

The good character which

the defendant had sought to

establish was broader than the

crime charged and included the

traits of ‘honesty and truthful-

ness’ and ‘being a law-abiding

citizen." Possession of these

characteristics would seem as

incompatible with offering a

bribe to a revenue agent as

with receiving stolen goods.

The crimes may be unlike, but

both alike proceed from the same

defects of character which the

witnesses said this defendant

was reputed not to exhibit."

(335 U.S., at 483 [emphasis

supplied] .)

As hereinbefore mentioned, Jackson

elected to take the stand and testify in

his own behalf. By doing so, he "threw

open the door of the entire subject which

the law has kept closed for his benefit."

Michelson, supra, at 479. His cross-

examination (Tr., pp. 840-878), by the

Government, was replete with questions

designed to attack the truth of his per-

sonal testimony or, in other words, his

veracity. Jackson's right, as enunciated

in Michelson, to call witnesses attesting

to his reputation for truthfulness and

veracity was improvidently curtailed.

The trial court cited Rules 404 and 608

of the Federal Rules of Evidence as the

basis for his decision (Tr., pp. 883-

888).

As to this, it is here contended the

court's reliance upon Rule 404 was sorely

misplaced. To begin with, Rule 404

specifically provides:

"(a) Character Evidence Generally.

Evidence of a person's char-

acter or a trait of his character

is not admissible for the purpose

of proving that he acted in con-

formity therewith on a particular

occasion, except:

(1) Character Of Accused.

Evidence of a pertinent

trait of his character offered

by an accused or by the prose-

cution to rebut the same."

Viewed in its proper light, the proffered

testimony was not offered to prove

Jackson's propensities vel non to commit

a crime. On the contrary, the testimony

was offered to refute the very substan-

tial damage to his credibility suffered

from the Government's scathing attack

upon his veracity and credibility.

We start, here with the idea that

Rule 404(a) (1), Federal Rules of Evidence,

makes it clear that an accused can surely

offer evidence of any "pertinent trait of

his character." This being so, it flies

in face of this express language to say,

as the trial court did here, that such

evidence would only be proper if "[T]he

Government... put his character in issue"

(fr... p. 883).

While it is certainly true that

character testimony is only admissible

when pertinent to some specific issue,

which limits such évidence to that issue;

it is equally apparent that the accused

can always put his character in issue.

See, 2 Wright, Federal Practice and

Procedure, §409, at p. 116 (1969).

This must surely be so if it can

still be said that character evidence

must be considered along with all of the

other evidence in the case in deciding

if the accused has been shown to be

guilty beyond a reasonable doubt.

United States v. Crosby, 294 F.2d 928,

948 (2d Cir. 1961), cert. denied 368 U.S.

984 (1962). The same is true of an

accused's entitlement to the instruction

that evidence of good character alone

may raise a reasonable doubt as to guilt.

See, Michelson v. United States, 335 U.S.

469, 476 (1948) and United States v.

Shimon, 352 F.2d 449, 453 (D.C. Cir.

, cited with approval in United

States v. Lechoco, 542 F.2d 84, 88

(p.ce Cir. 1976).

United States v. Lechoco, cited

above, is most relevant here, since it

dealt specifically with Rule 404(a) (1).

So is its express reliance on the posi-

tion taken by Chief Justice (then

Circuit Judge) Burger in United States v.

Shimon, supra. Here, it was stated, in

language that is surely apt nere, that:

"Thus, a defendant may

try... to cast doubt on the

probability of his guilt by

showing that some in the com-

munity believe him to be truth-

ful and honest." 352 F.2d,

at 453.

Actually, this is only another way of

saying an accused can always prove the

existence of the trait of veracity in

his character as a method of supporting

his credibility.

Again, referring to Lechoco, supra,

as was the case there, so it was here--

the credibility of the accused and his

veracity went to the heart of the ques-

tion of guilt or innocence. To be sure

then, a credibility evaluation was re-

quired as between the testimony of

Jackson and virtually every crucial

prosecution witness. To say, as do the

courts below (Jackson, 588 F.2d, at 1055)

that Jackson could not be aided by char-

acter evidence of this ilk hardly com-

ports with the expressed intent of the

Rules.

Moreover, the Circuit Court's

apparent reliance on Rule 608 appears to

be likewise misplaced. Rule 608 speci-

fically provides:

"(a) Opinion and Reputation

Evidence of Character.

The credibility of a witness

may be attacked or supported by

evidence in the form of reputa-

tion or opinion, but subject to

these limitations: (1) the

evidence may refer only to

character for truthfulness or

untruthfulness, and (2) evidence

of truthful character is admis-

sible only after the character

of the witness for truthfulness

has been attacked by opinion or

reputation evidence or otherwise."

(Emphasis added.)

Clearly, the view of the appellate

court to the contrary notwithstanding,

the Government's cross-examination

attacked the credibility and veracity of

Jackson (Tr., pp. 840-870). Moreover,

the Government specifically attacked

Jackson's credibility in its closing

argument. Indeed, at one point, the

Government argued to the jury that

"([T]here is nothing in this case but

controversy, and it is the difference

between the truth and the untruth"

(Tr., p. 947). See, also, United States

v. Lechoco, supra.

To the extent the Government suc-

ceeded in this effort, it necessarily

follows Jackson was denied due process.

IIt

The Due Process And Fair

Trial Rights Of A Defendant

Are Offended Where The

Prosecutor Elicits Highly

Prejudicial Testimony

Which Has Absolutely No

Probative Value.

The Government elicited from their

witness, Beverly Pertilla, that on the

night of July 6, 1977, Jackson returned

to their hotel room with a small quantity

of cocaine. These matters, which had no

probative value to the issues framed in

the indictment, were highly prejudicial.

In this, the Court of Appeals agreed.

Their ultimate view was that it was only

harmless error (588 F.2d, at 1056).

Again, in this case, the Government

willfully solicited and provoked the

original prejudicial response. Obviously

inspired by this response, counsel then

had the obvious temerity to continue to

pursue the line of questioning, thereby

eliciting further prejudicial responses.

To the extent this evidence connected

Jackson with criminal conduct outside

the purview of the indictment, such evi-

dence must be viewed as having contribu-

ted to the conviction in this case. So

much so, that the court below was not

warranted in assuming it had no effect

on this verdict.

Our view, and the one this Court

should credit, once the appellate court

recognized, as it did ("that it was

improper to introduce evidence of mis-

conduct not charged in the indictment,"

[584 F.2d, at 1055]), the error assumed

an importance in this cause that trans-

cended its own weight. Not only was

this evidence, standing alone, improper

and perforce prejudicial, when the same

is considered along with that bearing on

the aborted substantive charges made in

the indictment, it is really blinking at

Justice to conclude Jackson received all

of the due process to which he was

entitled.

ee ee

The Hearsay Rule And The

Accused's Right Of Con-

frontation Can Not Be

Circumvented So As To

Allow The Parroting

Of Statements Attributed

To Unidentified, And

Unidentifiable, Third

Parties.

It is axiomatic that hearsay is an

extrajudicial statement testified to by

one other than the maker, offered to

prove the truth of the matter asserted.

See Rule 80l1(c), Federal Rules of

Evidence; United States v. Hicks,

420 F.2d 8 th Cir. 1970); and United

States v. Johnson, 427 F.2d 957 (5th Cir.

1970).

The evidence to which reference is

here being made was hearsay, pure and

simple. Its value "rests on the credit

of the declarant, who was not under oath

nor subject to cross-examination when

the statement was made." McCormick,

Evidence, §39; United States v. Howard,

449 F.2d 308 (5th Cir. 1971).

etic 5 this evidence, the highly

contested~/ connection between the heroin

2/7 Here we are specifically concerned

with testimony by Linda Johnson, which

showed she had no knowledge of the con-

tents of said bag and, therefore, was

unable to relay any such knowledge to

Porter or Jackson.

laden bag and the person delivering the

same to Linda Johnson would have been

even more tenuous. Had this been the

case, as it should have been, the requi-

site criminal knowledge, essential to a

finding of guilt, would have been relega-

ted to the mere circumstance of an inno-

cent meeting between Linda Johnson and

co-defendant Porter at the Birmingham

Airport on July 7, 1977, Moreover, with-

out these "hearsay" statements, the

crucial linking of the bag to Porter and

through him to Jackson could not have

been established (if it ever was) in

accordance with fundamental criteria.

In Re Winship, 358 U.S. 397 (1970).

The damage done by these statements

was further compounded by the fact that

the Government could not identify the

declarant or otherwise provide petitioner

with necessary information to locate

this person if she, in fact, existed.

We conceded that under tthe co-

conspiracy exception to the hearsay rule,

testimony as to such extrajudicial

statements (as those here being dis-

cussed) may be admitted if it is

established, by evidence other than such

hearsay, (1) that the accused (here,

Jackson) was involved in a conspiracy

with the declarant (in this case the

unknown female), and (2) that the

statements, if made, were made in

furtherance of such conspiracy. Lutwak

v. United States, 344 U.S. 604 (1953);

Rule 801(d) (2), Federal Rules of Evidence.

This rule, however, does not exist as

though oblivious to values implicit in

the accused's right to be confronted by

the witnesses against him.

The fact that the values must be

reckoned with in a meaningful way was

made most clear in California v. Green,

399 U.S. 419 (1970). Here, this Court

noted that more than once "[they had]

found a violation of confrontation

values even though the statements in

issue were admitted under an arguably

recognized hearsay exception." Id.,

at i355.

The question then is how can the

Government justify the admission of evi-

dence showing an asserted conversation

between a non-conspirator (Linda Johnson)

and an unknown person?

At the outset, the Government is

stuck with the thrust of their case

theory, under which Linda Johnson was

not deemed to be a conspirator. This

being so, the gap between Jackson and

the unknown female can only be bridged

if the statements attributed to this

unknown person (1) were, in fact, made

and (2) were made by a conspirator in

furtherance of the charged conspiracy.

Absent here, of course, is any

proof this person was a member of any

conspiracy--to say nothing of being a

member of the charged conspiracy.

A further aspect of our confronta-

tion argument is grounded on Dutton v.

Evans, 400 U.S. 74 (1970). Here, this

Court noted the mission of the confronta-

tion clause (id., at 89) was to insure

that the trier of the facts has a satis-

factory basisfor evaluating the truth

of the prior statement.

The question posed here then turns

On answers to (1) whether there was "a

satisfactory basis for evaluation"

(California v. Green, 399 U.S., at 161]);

(2) whether cross-examination of the

declarant could have possibly exosed the

statement, if made, to be unreliable

(Dutton v. Evans, at 89); and (3) whether

the statements themselves contained a

sufficient "indicia of reliability"

(ibid). See, Marcus v. Stubbs, 408 U.S.

204, at 213 (1972).

Viewed in the light of the facts in

this case, any contention that the

assailed evidence passes constitutional

muster must surmount the above-indicated

queries. This is especially so once we

agree, as we must, that statements im-

puted to the non-testifying declarant

were "crucial" to the prosecution and

"devastating" to the defense. Dutton v.

Evans, supra, at 87.

In dealing with this precise issue,

the Fifth Circuit made certain signifi-

cant determinations. These were set

forth in footnote 4 of their Opinion.

Because of its extreme and critical

importance, that segment of their Opinion

is being set forth in its entirety:

"Migs Johnson testified

that she was unaware that the

canvas bag she transported

from Los Angeles to Birmingham

contained heroin, and the prose-

cutor stated in court that the

government considered her to be

an innocent participant in the

criminal scheme. She testified

that she met Porter in Los

Angeles in June 1977 and that

he invited her to his family

reunion in Birmingham. On

July 6 a woman Miss Johnson

did not know came by her

apartment and gave her $130

air fare to Birmingham. She

also handed her a small canvas

bag and requested that she

pack it with the things she

was carrying on her trip. The

stranger told Miss Johnson that

Porter would pick her up at the

Birmingham airport. Appellants

contend that the witness' testi-

mony as to what the unidentified

woman said when she brought the

money and canvas bag to the

witness at her Los Angeles apart-

ment violated the hearsay rule

and the Confrontation Clause of

the Sixth Amendment. We disagree.

The Federal Rules of Evidence

exclude from the operation of

the hearsay rule any oral state-

ment not intended as an assertion.

F.Rule Evid. 80l(a). Further-

more, an out-of-court statement

that is not offered as proof of

the matter asserted therein is

not hearsay. F.Rule Evid. 80l(c).

We think that the out-of-court

statements fall within that class

of "'cases in which the utterance

is contemporaneous with a non-

verbal act, independently admis-

sible, relating to that act and

throwing some light upon it.'"

United States v. Annunziato,

293 F.2d 373, 377 (od Cir. 1961)

(quoting Morgan, A Suggested

Classification of Utterances

Admissible as Res Gestae,

31 Yale L.J. 229, 236 (1922).

Since the unidentified woman in

Los Angeles was not a witness

against the appellants, there

was no Confrontation Clause

violation in this case."

(United States v. Jackson,

588 F.2d, at 1049-1050, fn. 4)

In further amplification of our

points in this regard, the Record not

only shows the lack of any governmental

contention that the Miss Johnson refer-

red to above was a conspirator, it also

shows the lack of any contention in the

indictment, or elsewhere, that this

unidentified person (if she did exist)

was a confederate of either of those

classified in the indictment as the

conspirators. The upshot of this point

is that, had such a joint venture been

shown, it could possibly have trans-

formed the assailed evidence into an

utterance made in furtherance of a

conspiracy in which one, or both, of

these appellants may have been members.

Also, it is relevant as significant

to the Hearsay-Confrontation issues here,

that the prosecutor, in arguing on the

basis of Linda Johnson's role, distilled

her testimony into the following passage:

"Arthur had come out and

talked to me about a family

reunion. They gave me the money

through somebody I didn't know.

and a bag and told me to meet

James at the airport and give

him the stuff. I am sorry, she

didn't say give him the stuff.

She said take this to Birmingham

with you and you will be met by

James. And James met her at

the airport at the designated

hour and she said, I gave him

my ticket stub. No, she

didn't say that at all. She

said, he said he would get my

bag later, we couldn't get it

right now because he was being

followed. That is her testi-

mony." (Tr., PP. 449-450

[emphasis added].)

What the argument shows, in our

judgment beyond dispute, is that the

prosecutor viewed the admission of

Linda Johnson's testimony as to what

the unidentified woman supposedly had

said to her, as substantive proof that

these appellants were directly respon-

sible for the actions and words of this

unidentified person. Indeed, his argu-

ment asks the jury to draw that same

conclusion.

But, even this is not all. The

importance of this aspect of Linda

Johnson's testimony is further heightened

by the fact that the jury specifically

requested that her recorded testimony

(R 978) be replayed for them. This

the court permitted. In addition,

and even more important, the Record

shows the very significant comment

by the Judge to the effect that, in

his judgment, "[t]here is no question

that Miss Johnson's testimony is pre-

judicial." (Tr., p. 977.) Stated another

way, the prosecutor's argument, the jury's

request that Linda Johnson's testimony

be replayed for them, and the court's

candid observation show the evidence

being complained about here had a

substantial input on the verdicts return-

ed.

A. Where the dominant purpose

of certain statements made

by a non-testifying "declar-

ant" is as proof of the

matter asserted therein,

and such statements are so

used by the prosecutor (in

his summation) and by the

jury (in its deliberations),

such statements must be

viewed as hearsay within

the meaning of Rule 801l(c).

It has always been the law that a

statement, other than one made by the

declarant while testifying, is hearsay

if offered to prove the truth of the mat-

ter asserted. And, it is a fact that

The Federal Rules of Evidence have made

certain types of statements, arguably

within the usual definitions of hearsay,

admissible if they were expressly

excluded from its definition (Rule 801[d])

or included within one of its exceptions

(Rule 804[b]). Obviously these Rules

have liberalized the admission of evi-

dence of a hearsay nature. Still it

must be recognized here that a specific

exception for “utterances contempora-

neous with a nonverbal act, independently

admissible, relating to that act and

throwing some light upon it" (Jackson,

588 F.2d, at fn.4) was not made one of

these exceptions.

In this case then, unless the Fifth

Circuit's decision is being misread, the

utterance herein being assailed (1) was

not intended as an assertion; and (2) was

not offered as proof of the matter

asserted therein. As to this matter,

the initial question is how can it be

said that the statement was either not

intended as an assertion, or not offered

to prove the truth of the matter asserted

therein?

Apart from the argument made else-

where in this Petition to the effect

that where the Government introduces

evidence admissible only for a limited

purpose, an instruction properly re-

straining such evidence is required; 3/

the facts here show these statements

were offered testimonially--that is, to

prove the truth thereof. Diaz v.

Southern Drilling Corporation of

Argentina, 449 F.2d 258, 261 (5th Cir.

1971).

Here the Record shows, first of

all, that the source of the contraband

to Linda Johnson was not relevant to

any issue in this case. Where, and from

whom, Johnson received the contraband

and her fare could only be relevant

to Jackson's prosecution if Porter was

somehow responsible for these items

being delivered to her. And, if it was

further shown that he (Porter) was acting

in complicity with Jackson. But here,

the charged conspiracy was that it only

involved Jackson and Porter, and was

related to the drugs after they had

3/ As to the efficacy of this argument,

msee, e.g., United States v. Cain, 587

.2d 677, 680 (5th Cir. 1979) and United

States v. Gomez, 529 F.2d 412, 416 (5th

Cir. 1976).

been transported by Johnson from Califor-

nia to Alabama.

As postured hereinabove, even the

nonverbal act thesis, relied on by the

panel (--that is, the giving of the

contraband and the money, if it happened,

by the stranger to Johnson) was not an

act that was itself "independently

admissible" (Jackson, at p. 1049, fn.4).

But, even this is not all. [In our

judgment, these utterances, even when

viewed as having been contemporaneous

with the nonverbal acts we are concerned

with here, rather than offering some

explanation for them, literally over-

whelms such acts.

Be all that as it may, the Circuit

Court's reliance on United States v.

Annunziato, 293 F.2d 373 (2d Cir. 1961),

seems to be sorely misplaced. To begin

with, the rule of that case has been

routinely criticized (see Vol. 4,

Weinstein's, Evidence, §80l[c][l],

pp. 801-62), and outright rejected in

at least one case. (United States v.

Mandell, 437 F. Supp. 262, 265-269

[D.C. Md., 1977]).

In addition, the original source

for the quote specifically relied on

by the panel (31 Yale L.J. 229, 236

[1922]) seemingly has been tortured by

them to accommodate this situation.

For the one point made clear in the

article itself is that utterances of

this ilk are, in fact, “offered to prove

its truth and [are] obnoxious to the

hearsay rule." Id., at 236. On the

other hand, even Professor Morgan, the

author, expressed the view that because

the "witness [here, Linda Johnson] is

«_ aaetiealaen tee

subject to cross-examination concerning

that event [i.e., the nonverbal act] as

well as the fact and content of the

utterance,... the extrajudicial state-

ment does not depend solely on the

credit of the declarant." Ibid. However,

the Professor hastened to add that

"[m]uch should be left to the discretion

of the trial court." Id., at 237.

As to his criticism of the rule of

Annunziato, Weinstein emphasized that

situations wherein the utterance is

offered to characterize and define

nonverbal conduct (--that is, not for

its truth, but to show the fact of

its expression) "[mJust be differentiated

from the case where [as here] words

which clarify an ambiguous situation are

relevant only because they are offered

for their truth." Weinstein, at pp. 801l-

61 and 62.

B. The fact that evidence may

be admissible as an exception

to the hearsay rule does not

automatically qualify it

for admission; the accused's

right of confrontation must

also be satisfied.

(1) Where evidence is

offered against an accused

that cannot be cross-examined,

the prosecution must demon-

strate such evidence had an

independent “indicia of

reliability."

The thrust of the petitioner

Jackson's argument here is that the

jury's consideration of testimony showing

the content of a conversation supposedly

had between Linda Johnson and the uniden-

tified female violated both his right of

confrontation and the hearsay rule. In

making this argument, it should be noted

that, as was stated in the plurality

opinion in Dutton v. Evans, 400 U.S. 74

(1970), “the mission of the confrontation

clause is to advance a practical concern

for the accuracy of the truth-determining

process in criminal trials by assuring

that the trier of the fact [has] a

satisfactory basis for evaluating the

truth of the prior statement." Id.,

at 89.

In our judgment, the statements

attributed by the witness Linda Johnson

to this unknown person contained the

implied assertion that Porter was privy,

in a criminal sense, to the conversa-

tion's basic thrust. Obviously then,

the truth of this highly significant

implication depends not only on’ whether

the statements were actually made, but

on whether the statements (if made)

were reliable. This question turns on

the answers as to (1) whether there

was "a satisfactory basis for evaluating

its. truth, California v. Green, 399

U.S. 149, 161 (1970); (2) whether cross-

examination could have possibly exposed

the statements, if made, to be unrelia-

ble, Dutton v. Evans, supra, at 89; and

(3) whether the statement itself con-

tained a sufficient "indicia of relia-

bility.” Ibid.

It may suffice here simply to say

that Jackson, in this case like the

defendant in Dutton, was only able

to cross-examine the witness, who pur-

portedly was quoting the declarant, on

the factual question as to whether the

witness actually heard the particular

statements which the Government contended

implicated him.

In the context of this case, the

confrontation clause assured Jackson

(since there was no way he could cross-

examine, or otherwise confront, the

asserted declarant [i.e., the unknown

person]) that he would have a satisfac-

tory substitute for testing the accuracy

of the statements imputed to him by a

witness testifying in her own self-

interest. In this sense, the Government

was surely required to demonstrate that

this evidence had such an independent

"indicia of reliability" that cross-

examination would serve no useful purpose.

Indeed, the Fifth Circuit's opinion

in United States v. Menichino, 497 F.2d

935 (5th Cir. 1974), seemingly stands

for the proposition that "statements

admitted under hearsay rules may be

examined by the Court to assure the

trier of fact [has] a satisfactory

basis for evaluating the truth of the

prior statement." Id., at 943. And,

that same Circuit's opinion in Park v.

Huff, 506 F.2d 849 (5th Cir. 1975),

can be read as requiring in compara-

ble situations a determination as to

whether a sufficient "indicia of relia-

bility" could be gleaned from the

utterance itself and the circumstances

Surrounding it. Also see Marcus v.

Stubbs, 408 U.S. 204, 213 (1972).

In making the point that Jackson's

confrontation rights were violated, we

are not oblivious to this Court's

rejection of the argument made in

California v. Green, supra, at pp. 155-

156 (1970) that the Sixth Amendment codi-

fied common law hearsay principles.

Since Jackson could not cross-examine

this unknown person as to whether she

made the remarks attributed to her, the

question then is whether his ability to

cross-examine Linda Johnson on the

factual question as to whether she actu-

ally heard these statements furnished a2

satisfactory basis for evaluating the

underlying truth of the statements

themselves. But even this, of course,

does not end the matter. The question

then becomes whether the circumstances

surrounding the specific utterance

gave it a sufficient "indicia of relia-

bility" to place it before the jury.

Even this is not all. While it

could possibly be inferred that Porter

had personal knowledge of the arrange-

ment made with Linda Johnson, no basis

exists in this Record for imputing such

knowledge to Jackson. Hence, merely

having permitted Jackson to cross-

examine Linda Johnson cannot be said to

have satisfied his confrontation rights.

4/ In dealing with comparable utter-

ances, in the context of a state court

prosecution, a panel of the Fifth Cir-

cuit, in Park v. Huff, 493 F.2d, at 23,

rev'd, 506 F.2d 849 (5th Cir. 1975),

noted that a number of possible reasons

exist for the insertion cf a particular

person's name, even by a conspirator,

into a crucial conversation. As was

true there, such may have been "gratui-

tous", or it may have been done to add

the named person's "prestige to the

undertaking."

(2) The admission of an

extrajudicial statement

imputed by a prosecution

witness to a nontestifying

declarant, which statement

was “crucial” to the prose-

cution and “devastating” to

the defense, constitutes a

violation of the right of

confrontation.

To begin with, we concede there are

exceptions to the hearsay rule. These

include the hearsay exception which

permits a co-conspirator's extrajudicial,

or out-of-court, statements to be admit-

ted when made in furtherance of the con-

spiracy. See, e.g., Lutwak v. United

States, 344 U.S. 604 (1953). On the

other hand, the existence even of this

rule does not entirely resolve the .

admissibility of the asserted declara-

tions in this case. Values implicit in

the Sixth Amendment right of an accused

"to be confronted by the witnesses

against him," must perforce be reckoned

with. See United States v. Menichino,

497 F.2d 935 (5th Cir. 1974).

In a sense, it can be said that the

same considerations that generate the

hearsay rule support and animate the

right of confrontation. Yet, it seems

to be all too clear that this apparent

Similarity of values does not result

in the exclusion of all hearsay that

may be violative of the confrontation

clause, any more than it makes admissible

all testimony that qualifies as an

acceptable exception to the hearsay

rule.

Of no mean significance is the fact

that this Court has explicitly held that:

"While it may be readily

conceded that hearsay rules

and the Confrontation Clause

are generally designed to

protect similar values, it is

quite a different thing to

suggest that the overlap is

complete and that the Con-

frontation Clause is nothing

more or less than a codifica-

tion of the rules of hearsay

and their exceptions as they

existed historically at common

law. Our decisions have never

established such a congruence;

indeed, we have more than once

found a violation of confronta-

tion values even though the

statements in issue were admitted

under an arguably recognized

hearsay exception." California

v. Green, 399 U.S. 149, 155

(1970). (Emphasis added.)

In the absence, then, of an auto-

matic rule of equivalence between the

hearsay rule and the right of confronta-

tion, an assessment is required here as

to the extent to which the confrontation

values may have been violated by the

admission of the statements involved

here.

Given the fact that the asserted

declarant could not be cross-examined,

an event which would have at least

exposed their demeanor to the scrutiny

of the jury, the "mission" of the con-

frontation clause usually served by

nN TET he

a ee

cross-examination could not be accomplish-

ed here. Stated another way, the con-

frontation values of which this Court

spoke in California v. Green, supra,

could not be served in any manner.

Even here, we concede that a failure

to serve confrontation values may not be

fatal where the hearsay testimony is

neither "crucial" to the prosecution nor

"devastating" to the defense. Dutton

v. Evans, 400 U.S. 85, 87 (1970).

The evidence admitted against

Jackson here, in addition to being both

"crucial" and "devastating", was also

unreliable. For certainly "[i]t is...

[conceivable] that cross-examination

could have shown that... [the asserted

declarant] was not in a position to know

whether or not... [Porter] was involved

...-(with the package she was being

asked to transport]." Dutton v. Evans,

supra, at 88. Nor can the conviction

be sure that cross-examination of this

person could not have shown (if, in

fact, she made the statements attributed

to her) that they were made simply to

conceal her own role as the sole person

involved in an isolated sale. See

United States v. Koch, 113 F.2d 982,

983 (2d Cir. 1940); United States v.

Zeuli, 137 F.2d 845 (2d Cir. 1941);

United States v. Ford, 324 F.2d 950

(7th Cir. 1963). Compare, United

States v. Cook, 461 F.2d 906, 910, fn.3

(Sth Cir. 1972).

Here too, of the declarations here

involved, none were corroborated by other

testimony tending to establish the

existence of a conspiratorial relation-

ship between Jackson and the declarant.

Indeed, the fact that they were testified

to by a witness who had ample cause to

falsify is a further consideration in

favor of rejection.

Not only this, and perhaps even

more important, unlike the situation in

Dutton, under the facts here, the out-of-

court declaration was not "of peripheral

significance at most." aes at 87.

Instead, the witness Johnson's testimony

was m9 t crucial to the Government's

case. In any event, the confrontation

issue arises here because the jury was

invited to infer that the nontestifying

declarant had implicitly identified

Porter as a confederate when she referred

to him in her convexssation with the

witness Johnson. Id., at 88.

(3) Where evidence is

admitted as substantive

proof, and inferentially

so regarded by the Govern-

ment, the ju ry and the

Court; it is "unfair for

a reviewing court to con-

Sider such evidence for

any narrower purpose than

that upon which the testi-

mony was unquestionably

offered and received at

the trial.”

The above quote from United States

v. Check, 582 F.2d 668, 683 (2d Cir.

57 tin Dutton, the evidence against the

defendant consisted not Only of eyewit-

ness testimony, but testimony by one

of the participants who fully involved

Evans in the crime.

1978), seems especially appropriate

here. This is particularly so since

there can hardly be any dispute that

the evidence with which we are here

concerned was admitted without any

qualifications. See United States v.

Brown, 490 F.2d 758, 763 (D.C. Cir. 1973);

and United States v. McClain, 400 F.2d

241 (D.C. Cir. 1971).

The appropriateness of this idea can

only be augmented by references the

Check decision makes to the rather saga-

cious remarks of Justice Cardozo in

Shepard v. United States, 290 U.S. 96,

Toss 103 (1333) Here it was said, for a

unanimous court (in a case that really

focuses on an aspect of the evidence

spectrum involved in this case) that

where testimony was admitted for one

purpose, the "trial becomes unfair if

[such] testimony thus accepted may be

used by an appellate court as though

admitted for a different purpose unavowed

and unsuspected." Id., at 102-103.

Thus it becomes a point of cardinal —

significance here, as it was in Shepard,

that "(t]he testimony [involved] was

neither offered nor received for the

strained and narrow purpose now sug-

gested as legitimate." Ibid. Also, see

United States v. Hannah, 584 F.2d 27

re ), where the Third Circuit,

at least when entertaining an appeal by

the Government, took the position that:

"An appellate court may

properly review a criminal case

on the Government's appeal only

on the theory submitted to the

uty 8 o.. aaa by the prosecution."

idg.,a

All this seems to verify the ulti-

mate position taken in Check, by the

Second Circuit, and contended for here.

Simply put, there "is a venerable prece-

dent for disregarding the unseasonable

advancement of... [alternative] purposes

to salvage evidence introduced by the

Government at a criminal trial when the

grounds... advanced in the trial differ

markedly from those urged upon the

appellate court." United States v.

Check, 582 F.2d 668, 681 (2d Cir. 1978).

This case then gives this Court an

opportunity to foreclose the use of a

Shepard-type, post hoc, justification,

Or rationale, for admitting evidence.

In our judgment, this Court should opt

for, and fully credit and endorse, the

venerable precedent referred to above as

the law of this case.

(4) Where the prosecution

introduces evidence which,

if admissible at all, is

Only proper when used in

a highly sophisticated

sense and for a very limited,

and narrowly circumscribed,

purpose; a mandatory duty

descended upon the court to

inform the jury they did not

have the unfettered use of

such evidence and that it

had to be utilized for the

limited purpose only.

The point being urged here is that

assuming, without conceding, the

utterances, centralized in this applica-

tion, could have been properly admitted

for the purpose indicated by the panel;

the fact still remains there is now show-

ing this is what happened. To be sure,

the Record simply shows that counsel's

articulated objections were summarily

Overruled by the trial Judge. (Tr.,

pp. 386-388.)

In our view, the absence of any

instruction confining and restricting the

jury's consideration to whatever proba-

tive value (if any) these utterances

may have had in throwing some light on

certain nonverbal acts, perforce,

"allowed the jury to draw any inferences

[it saw fit] as to the statement's alle-

gations, explicit and implied." United

State v. Brown, 490 F.2d 758, 763, f£n.10

(D.C. Cir. 1973). Stated another way,

the jury was free to consider this

evidence without limitation, which

includes using it to prove the truth

of its content.

The position taken here can

be analogized to that very recently ex-

pressed by a daifferent panel of Fifth

Circuit Judges in United States v. Cain,

387 F.2d 687 (5th Cir. 1979). Here, the

court dealt with evidence assertedly

offered by the Government, and specifi-

cally admitted by the court, on the

theory that it fit within a certain

exception (Rule 801[1]) to the hearsay

rule.

Given Cain, the Fifth Circuit seem-

ingly should have deemed it to be the

law of that Circuit that where cogent

evidence (if admissible at all) is

admissible for a very limited purpose,

the danger of the jury misusing such

evidence is simply too great to leave

the accused unprotected by a sufficient

instruction. Indeed, the position this

Court should require them to adopt

declares that "as long as we continue to

have rules of evidence which admit testi-

mony for some purposes, but not for

others,... [trial] courts must guard

against its misuse by the jury." United

States v. McClain, 440 F.2d 241, 2

(D.C. Cir. L971).~

Since no instruction was given here,

it can only follow that Jackson was pre-

judiced. Hence, the fact that the

prosecutor, as well as the Judge, allowed

Jackson to be victimized by this evidence

shows the need for some definitive ex-

pression by this Court as to whether trial

courts should recognize as exceptions to

the hearsay rule the suggested classifi-

cations of Professor Morgan. The fact

that the Fifth Circuit seems quite will-

ing to accept one of these suggestions

as the basis for affirming this convic-

tion (Jackson, 588 F.2d, fn.4) should

cause this Court the type of concern

that leads to a hearing on the merits.

The Trial Court Erred In

Denying The Petitioner's

Motion For Judgment Of

Acquittal, Made At The

Close Of The Government's

Case, And Renewed At The

Close of All The Evidence

And Post-Verdict.

At the outset, it is our view that

there is no way a reasonably minded

jury should have found the evidence here

was “inconsistent with every reasonable

hypothesis of innocence," United States

v. Moore, 505 F.2d 620 (5th Cir. 1975).

This contention is surely buttressed by

the fact that the appeals court deter-

mined the possession charge "should not

have been submitted to the jury."

Jackson, at 1057. And, just as surely,

the fact that this contraband was

located in an unclaimed suitcase at the

airport, even when supported by (1) the

statement attributed to the unidentified

female--that is, that the suitcase was

to be delivered to Jackson's co-defendant;

(2) Jackson's shown association with this

co-defendant; and, (3) even his conversa-

tions had in the hotel room, did not

justify this conviction for possession;

the same conclusion should be applied to

the conspiracy conviction with which

he continues to be saddled. Our view,

and hopefully this Court's, is that the

evidence here bearing exclusively on

that charges is insufficient as a matter

of law.

Here, of course, it seems clear

the conspiracy charge is substantiated

on the fact that Jackson was arrested

with Porter, who was identified as the

person to whom the suitcase was to be

delivered. Hence, it would only be an

assumption, even if the suitcase had

been delivered to Porter, that Jackson

not only was aware of its contents, but

had a sufficient stake therein to make

him a conspirator either with Porter, or

a co-conspirator of the unknown female

in California.

On the basis of the evidence pre-

sented here, it seems clear beyond dis-

pute that, at best, the case against

Jackson was tenuous. Hence, any

conclusion that this evidence was suffi-

cient seems most unreasonable.

Accordingly, this Court ought to

review Petitioner's conviction for this

reason, as well as for the other reasons

set forth in this Petition.

CONCLUSION

A careful reading of the various

arguments made in this Petition should

convince this Court, both as to the

gross injustice suffered by this Peti-

tioner (in the district court and by the

appeals court) and the substantiality of

the constitutional questions and issues

presented. For these reasons, this

Court should grant the writ of

certiorari and accept this case for

review.

Respectfully submitted,

JAMES R. WILLIS, ESQ.

Attorney for Petitioner

Bond Court Building, #1609

1300 East Ninth Street

Cleveland, OH 44114

216/523-1100

se =

R AT

THIS IS TO CERTIFY THAT ON THIS DATE,

APRIL 5S, 1979 THE FOLLOWING OPPOSING

COUNSEL HAVE BEEN SERVED VIA EXPRESS

MAIL, WITH COPIES OF THE FOREGOING

PETITION FOR A WRIT OF CERTIORARI.

J.R. BROOKS, UNITED STATES ATTORNEY

ATTN: BILL L. BARNETT, ASSISTANT U.S.

ATTORNEY

200 FEDERAL BUILDING

1800 FIFTH AVENUE, NORTH

BIRMINGHAM, ALA 35203

HONORABLE WADE MCCREE

UNITED STATES SOLICITOR GENERAL

UNITED STATES DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530

MURRAY SILVER, ESQ.

100 COLONY SQUARE, SUITE 1700

1175S PEACHTREE STREET

ATLANTA, GA 30309

(ATTY FOR ARTHUR PORTER, III)

STUART ROWN

PRESIDENT, BROWNPRINT,

INC.

Pa eee -

APPENDI2Z

United States Court of Appeals

Fifth Circuit

Office of the Clerk

March 7, 1979

TO ALL PARTIES LISTED BELOW:

NO. 77-5707-UNITED STATES OF

AMERICA V. EARNEST JACKSON, JR.;

JAMES ARTHUR PORTER, III

Dear Counsel:

This is to advise that an order has this

day been entered denying the petition( )

for rehearing, 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 banc

(Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16)

the petition ( ) for rehearing en banc

has also been denied.

See Rule 41, Federal Rules of Appellate

Procedure for issuance and stay of the

mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By /s/ Sally Hayward

Deputy Clerk

cc: James R. Willis

Dennis E. Siegal

Murray Silver

J. R. Brooks

Bill Barnett

APPENDIX "A"

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

EARNEST JACKSON, JR., AND JAMES

ARTHUR PORTER, III,

Defendants-Appellants

No. 77-5707

United States Court of Appeals,

Fifth Circuit

Feb. 2, 1979.

Appeal from the United States Dis-

trict Court for the Northern District of

Alabama.

Before MORGAN, RONEY and VANCE,

Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Following a jury trial in the United

States District Court for the Northern

District of Alabama, appellants Earnest

Jackson, Jr., and James Arthur Porter,

III, were convicted under a two-count

indictment of violating the federal

narcotics laws. Count One charged

appellants with conspiracy to distribute

approximately 934.5 grams of heroin, a

Schedule I controlled substance, in

violation of 21 U.S.C. § 846. Count Two

charged appellants with possession of

heroin with intent to distribute in

violation of 21 U.S.C. §841l(a) (1).

their principal argument appellants

APPENDIX "B"

contend that their Fourth Amendment pri-

vacy rights were violated when narcotics

agents rented an adjacent motel room and

eavesdropped on conversations in Jackson's

room by placing their ears next to the

space at the bottom of the door connect-

ing the two rooms. Both appellants also

alleged that none of the evidence admit-

ted at trial established their possession

of the heroin. Jackson further asserts

a number of additional errors requiring

reversal which we describe and discuss

below. We affirm as to appellants’ con-

spiracy conviction but reverse as to

their conviction for possession with

intent to distribute.

I. FACTS

For several years prior to Jackson's

arrest, agents of the Drug Enforcement

Administration had suspected him of nar-

cotics laws violations. Despite their

suspicions and a three-year investigation

involving periodic surveillance of his

conduct and activities, DEA agents had

never observed Jackson passing heroin

nor uncovered any hard evidence that he

was trafficking in narcotics. On July 4,

1977, Jackson and a Miss Beverly Pertilla

checked into room 312 of the Kahler Plaza

Hotel in Birmingham, Alabama. An off-

duty Birmingham police officer working

security at the hotel spotted Jackson on

July 5 and notified the DEA of his pre-

sence. On July 6 Agent Hahn of the DEA

and Sergeant Trucks of the Birmingham

Police Department rented room 314 at the

hotel for the purpose of monitoring

Jackson's activities. Rooms 312 and 314

adjoin and are connected by a set of

double doors. After entering room 314

the officers determined that they could

A EMPTIES +0,

hear conversations in room 312 by lying

On the motel room floor and pressing

their ears to the 3/4" crack at the

bottom of their connecting doors.3 Al-

though at times their aural surveillance

was impeded by the sounds of the televi-

sion, plumbing, and air conditioning in

room 312, the officers had no difficulty

in overhearing much of the conversation

in the adjoining room. At no time did

the officers use any electronic or

mechanical device to assist them in their

aural surveillance.

Utilizing this eavesdropping tech-

nique, the officers on July 6 overheard

Jackson make two telephone calls to

Buffalo, New York. During these calls

Jackson stated, "No, I haven't been able

to contact my man yet. [Pause.] It

is like gold." and "The stuff is coming

from L.A. [Pause.] No problem with my

man." On the morning of July 7 Jackson

told his room guest, Beverly Pertilla,

to call an airline and make flight

reservations to Buffalo, New York. Sgt.

Trucks immediately dispatched two under-

cover officers to the airport to set up

surveillance. Shortly after Pertilla

made the reservations, Jackson received

a brief telephone call. He then cursed,

seemed excited for several minutes, and

told Pertilla that "the stuff may be in

trouble" and "the stuff is worth

$40,000." Within twenty minutes Jackson

received another telephone call in which

he stated, "is che stuff all right? Is

the suitcase still at the airport?" Fol-

lowing this conversation Jackson told

Pertilla, "I don't know what went wrong.

The police followed him to the airport.

The suitcase is still at the airport.

The flight came in at 9:08 and I don't

know what went wrong."

[1-3] Upon arriving at the airport,

the undercover officers parked their un-

marked car behind a car driven by appel-

lant Porter. Porter immediately drove

away from the terminal building, passed

back through the area three minutes later,

disappeared for approximately fifteen

minutes, and finally departed the air-

port with Linda Johnson who had arrived

at 9:08 a.m. on a flight from Los Angeles,

California4. Miss Johnson did not pick

up her luggage before leaving with Porter.

Porter drove Linda Johnson to the Kahler

Plaza Hotel, escorted her to her room,

and then paid a visit to room 312.

Jackson asked Porter, "Is everything all

right? Is the suitcase still at the air-

port? Good, let's go."

By the time Jackson and Porter

arrived at the airport, Linda Johnson's

unclaimed suitcase had been placed in the

Delta Airlines baggage claims office.

The suitcase which was the only piece of

unclaimed luggage, was sitting near a

window where it was clearly visible to

passersby. Jackson walked around inside

the terminal and, at one point, paused

in front of the baggage claims office.

Porter, who was carrying a piece of

luggage, entered the baggage claims office,

looked for a moment in the direction of

the unclaimed suitcase, and left the

office. He then walked to a United

Airlines desk where he purchased a ticket

and checked his luggage. Jackson and

Porter left the terminal, got into a

car, and were arrested as they attempted

to leave the airport.

Based on the information obtained as

a resulted of the eavesdropping, DEA

agents obtained search warrants on both

the Johnson suitcase and room 312 at the

hotel. Inside the suitcase was a zipper-

ed canvas bag which contained approximate-

ly two pounds of 8% heroin and approxi-

mately one pound of a substance used as

a diluter. The heroin had a wholesale

value of approximately $40,000 and a

street value approaching $1,000,000.

The search of room 312 at the hotel re-

vealed a tote bag which contained

$42,000 in forty-two $1,000 bundles.

II. FOURTH AMENDMENT

CONSIDERATIONS

[4,5] The Fourth Amendmnt prohibits

“unreasonable searches and seizures" and

assures "the right of the people to be

secure in their persons, houses, papers,

and effects." The protections afforded

by this amendment provide individuals

with a right of privacy which must not

be arbitrarily invaded by either the

federal government or the states. Wolf

v. Colorado, 338 U.S. 25, 69 S.Ct. 1359,

93 L.Ed. 1782 (1949); Boyd v. United

States, 116 U.S. 616, 6 S.Ct. 524, 29

L.Ed. 746 (1886). This court has repeat-

edly stressed the concept that "the under-

lying purpose of the Fourth Amendment is

to protect and shield citizens from

unwarranted intrusions into their private

domain." United States v. Davis, 423

F.2d 974, 977 (5th Cir. 1970). See

Texas v. Gonzales, 388 F.2d 145 (5th Cir.

- Any evidence secured through an

illegal search and seizure may not be

used in a federal prosecution, Weeks v.

United States, 232 U.S. 383, 34 S.Ct. 341,

58 L.Ed. 652 (1914), nor may the fruit

of such tainted evidence be admitted

against the defendant whose privacy rights

were originally violated. Wong Sun v.

United States, 371 U.S. 471, 83 S.Ct. 407,

9 L.Ed.2d0 441 (1963); United States v.

Cruz, 581 F.2d 535 (5th Cir. 1978).

The scope of the Fourth Amendment's

protection of personal privacy is deli-

neated in Katz v. United States, 389 U.S.

347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

See Rakas v. Illinois, ___ U.S. __, 99

S.ct. 421, 58 L.Ed.2d 387 (1978)

(No. 77-5781). In Katz the Supreme Court

held that eavesdropping on conversations

in a telephone booth by means of an elec-

tronic listening devise attached to the

top of the booth constitutes a Fourth

Amendment search and seizure.® In find-

ing an illegal search despite the absence

of a physical intrusion into the phone

booth, the Court rejected the trespass

doctrine applied in previous cases and

held that an individual is entitled to

Fourth Amendment protection whenever he

has 4 "reasonable expectation of pri-

vacy. The Court stated that the parties'

disagreement over whether a telephone

booth is a constitutionally protected

area

deflects attention from the problem

presented by this case. For the

Fourth Amendment protects people,

not places. What a person knowingly

exposes to the public even in his

own home or office, is not a subject

of Fourth Amendment protection....

But what he seeks to preserve as

private, even in an area accessible

to the public, may be constitution-

ally protected.

389 U.S. at 351-52, 88 S.Ct. at 511 (cita-

tions omitted). We must decide if the

agents' aural surveillance of Jackson's

room amounted to an illegal search under

the principles enunciated in Katz.

This court has had previous occasion

to address the constitutional issues pre-

sented on the facts of this appeal. In

Jones v. United States, 339 F.2d 419 (5th

Cir. 1964), narcotics agents entered a

motel room adjoining appellants' room and

removed a control panel from a heating

unit built into the common wall dividing

the two rooms. With the panel removed

the agents were able to see and hear

incriminating activity in appellants'

room. The court concluded that in the

absence of a physical intrusion into the

premises occupied by appellants, the

agents' surveillance did not amount to a

search and seizure in violation of the

Fourth Amendment. Because Jones applied

the trespass analysis rejected in Katz

and did not approach the issue in terms

of the reasonableness of appellants'

expectation of privacy, that decision

has no precedential value for this court.

[6,7] Employing the privacy interest

analysis approved in Katz, we hold that

these appellants had not justifiable

expectations of privacy with respect

to their motel room conversations which

were audible to the unaided ears of the

government agents lawfully occupying an

adjoining room. "It has long been set-

tled that objects falling in the plain

view of an officer who has a right to be

in the position to have that view are

subject to seizure and may be introduced

into evidence." Harris v. United States,

390 U.S. 234, 236, 88 S.Ct. 992, 993, 19

L.Ed.2d 1067 (1968) (per curiam). The

plain view doctrine defines certain

sensory observations as being outside

the scope of the Fourth Amendment's pro-

tections. This doctrine is entirely

consistent with the Katz expectations

standard since an individual can have no

‘justifiable expectation of privacy as to

activities he exposes to the plain view

of gthers. Katz, supra, at 351, 88 S.Ct.

5072 We think that conversations in a

motel room which are audible to one in an

adjoining room constitute words exposed

to the "plain view" of others.

[8-10] In assessing the reasonable-

ness of appellants' privacy expectations,

we are mindful that the concept of the

sanctity and inviolability of the home

stands at the very core of the protec-

tions afforded by the Fourth Amendment.

Silverman v. United States, 365 U.S. 505,

511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961);

Boyd v. United States, 116 U.S. 616, 630,

6 S.Ct. 524, 29 .Ed. 746 (1886); Fixel v.

Wainwright, 492 F.2d 480 (5th Cir. 1974);

United States v., Davis, 423 F.2d 974,

977 (5th Cir. 1970).% We also recognize

that "[a] hotel room can clearly be the

object of Fourth Amendment protection as

much as a home or an office." Hoffa v.

United States, 385 U.S. 293, 301, 87

S.Ct. 408, 413, 17 L.Ed.2d 374 (1966);

Stoner v. California, 376 U.S. 483, 490

84 S.Ct. 889, Il L.Ed.2d 856 (1964);

Lanza v. New York, 370 U.S. 139, 82 S.Ct.

F L.Ed. 84 (1962). But despite

the fact that an individuals' Fuirth

Amendment rights do not evaporate when

he rents a motel room, the extent of the

privacy he is entitled to reasonably

ape

expect may very well diminish. For

although a motel rooms shares many of

the attributes of privacy of a home,

it also possesses many features which

distinguish it from a private residence:

A private home is quite differ-

ent from a place of business or a

motel cabin. A home owner or tenant

has the exclusive enjoyment of his

home, his garage, his barn or other

buildings, and also the area under

his home. But a transient occupant

of a motel must share corridors,

sidewalks, yards, and trees with the

other occupants. Granted that a

‘ tenant has a standing to protect

the room he occupies, there is never-

theless an element of public or

shared property in motel surroundings

that is entirely lacking in the en-

joyment of one's home.

Marullo v. United States, 328 F.2d 36l,

363 (5th Cir. 1964). No matter where

an individual is, whether in his home, a

motel room, or a public park, he is

entitled to a "reasonable" expectation

of privacy. Katz, supra, 389 U.S. at 359,

88 S.Ct. 507; United States v. Holmes,

Supra, 521 F.2d at 864. However, what is

reasonable in one setting may be unrea-

sonable in another, and assessing the

reasonableness of an individual's pri-

vacy expectations in terms of "place"

does not offend the standard articulated

in Katz. "As the Court's opinion states,

"the Fourth Amendment protects people,

not places.' The question, however, is

what protection it affords to those

people. Generally, as here, the answer

to that question requires reference to a

"‘place.'" Katz, supra at 361, 88 S.Ct.

at 516 (Harlan, J., concurring). In view

of the open, public, and shared atmosphere

of a motel, the nearness of one's neigh-

bors, and the prevalence of uninvited

listeners in human society, we hold that

a motel room occupant assumes the risk of

an eavesdropper!9 when he carries on his

conversations in a tone of voice audible

to one outside the room.

Our holding in this case is clearly

supported by this court's decisions in

Gil v. Beto, 440 F.2d 666 (5th Cir. 1971)

and United States v. Williams, 581 F.2d

451 (5th cir. 1978). in Gil police

officers began their surveillance of

appellant by obtaining permission to

occupy a motel cabin adjoining appel-

lant's cabin. One of the officers was

able to see into the appellant's cabin

by standing on a walkway alongside the

cabin and peering through some partially

opened venetian blinds. While maintain-

ing a vigil at this window, he observed

narcotics paraphernalia and drug-related

activity. In response to appellant's

argument that he was the victim of an

unreasonable search, this court held that

"[nJo Fourth Amendment rights are viola-

ted when police officers are lawfully

on the premises and merely observe what

is in plain view." Id., at 667. See

United States v. Shima, 545 F.2d 1026

(5th Cir. 1977). We see no difference

between engaging in nonelectronic aural

surveillance of appellant's motel room

and keeping a vigil at his window and

maintaining visual surveillance of his

activities. Neither act is genteel, but

neither act is unconstitutional.

In Williams federal agents, acting

on a tip that a still was located on cer-

tain farm property, crept through a

wooded area and across a clearing until

they approached the outbuildings of the

farmstead. From this position the agents

detected the odor of moonshine liquor

and, equipped with this information, pro-

cured a search warrant for the property.

Applying the recognized distinction be-

tween open fields and curtilage as a

useful gauge in measuring the reasonable-

ness Of appellant's privacy expectations,

this court held that the agents' furtive

trespass did not consfitute a Fourth:

Amendment violation. We think that

this case is consistent with the result

we reach today.

[11-14] We emphasize that a govern-

ment agent may legally engage in aural

surveillance only when he listens from

a place where he has a legal right to be.

See Harris v. United States, supra.

Although this court has abandoned the

use of property concepts to define the

scope of the Fourth Amendment, we have

not hesitated to find an illegal search

where the government agent trespasses

in order to secure his plain view.

United States v. Davis, 423 F.2d 974

(5th Cir. 1970); Texas v. Gonzales,

388 F.2d 145 (5th Cir. 1968); Brock v.

United States, 223 F.2d 681 (5th Cir.

1961). “Whenever government agents enter

into the curtilage they necessarily

intrude upon the individual's reasonable

expectation of privacy. United States v.

Williams, 581 F.2d 451 (5th Cir. 1978).

These cases suggest that property con-

cepts, though no longer a Fourth Amend-

ment yardstick, do retain some vitality

under the Katz analysis. See Rakas v.

Illinois, supra U.S. at n.12,

99 S.Ct. 430 n.12; Note, 76 Mich.L.Rev.

154, 171-75 (1977). We reiterate, how-

ever, that privacy remains the proper

focus and that under a privacy analysis

there is no requirement that the govern-

ment engage in a physical trespass before

the individual can invoke Fourth Amend-

ment protection. Thus, the fact that the

agents in this case were lawful occupants

of the motel room from which they listened

and did not physically trespass into

appellants’ room, though significant, is

not controlling} We conclude that the

location of the government surveillant

vis-a-vis the individual surveiled is

merely a factor to be considered in

assessing the justifiability of the

individual's privacy expectations.

On these facts, however, we find that

the appellants assumed the risk of being

overheard by an eavesdropper and there-

fore had no justifiable expectation of

privacy as to their criminal conversa-

tions. 2

[15] Our holding today is also

consistent with cases decided by other

circuits on virtually the same facts.

In United States v. Fisch, 474 F.2d

1071 (Sth Cir.), cert. denied, 412 U.S.

921, 93 S.Ct 2472, 37 L.Ed.2d 148 (1973),

as in this case, police officers rented

a room in the motel where appellants

were staying and surreptitiously listened

to appellants’ conversations by placing

their ears next to a crack at the bottom

of the door connecting the two rooms.

Utilizing the Katz expectations standard,

the Ninth Circuit concluded that appel-

lants had not justifiabiy relied on the

privacy of their conversations which, in

essence, the court likened to items

exposed to the "plain view" of others.

We agree with the court's reasoning and

with its conclusion that no illegal search

occurred whei the officers were forced to

listen more closely by placing their ears

next to the door:

Appellants would have us divide the

listening room into privileged or

burdened areas, and the conversations

into degrees of audibility to, we

presume, the normal ear, thus a

remark heard on the bed arguably

admissible, but not those heard at

the door, a loud remark admissible,

arguably one uttered in "normal"

tones, but definitely not one

whispered. We find no precedent

for a categorization involving such

hair-splitting distinctions and we

are not disposed to create one.

United States v. Fisch, supra at 1077...

In United States v. Llanes, 398 F.2d 880

(2nd Cir. 1968), the court refused to

find a Fourth Amendment violation where a

narcotics agent stationed himself in a

hallway near an apartment door and eaves-

dropped on appellants' conversations

inside the apartment. “We believe that

conversations carried on in a tone of

voice quite audible to a person standing

outside the home are conversations know-

ingly gr oe to the public." Id.

at 88445 See United States v. Ortega,,

471 F.2d 1350 (2nd Cir. 1972), cert.

denied, 411 U.S. 948, 93 S.ct. I524, 36

L.Ed.2d 409 (1973). These cases support

our position that nonelectronic eaves-

dropping from an adjoining motel room

does not constitute a Fourth Amendment

violation.

III. CHARACTER EVIDENCE

[16] In a second argument Jackson

contends that he should have been allowed

to introduce testimony supporting his

reputation for "truth and veracity." The

trial court excluded this evidence on the

ground that Jackson]s reputation for

truth and veracity was not pertinent to

the crime with which he was charged. The

rule regarding the admissibility of

character evidence to prove conduct is

stated in Rule 404(a)(1) of the Federal

Rules of Evidence:

Evidence of a person's charac-

ter or a trait of his character is

not admissible for the purpose of

proving that he acted in conformity

therewith on a particular occasion,

except:

(1) Evidence of a pertinent

trait of his character offered by

an accused, or by the prosecution

to rebut the same.

In asserting that "an accused can always

prove the existence of the trait of

veracity in his character as a method

of supporting his credibility," Jackson

assumes that a defendant's credibility

is in issue in any criminal prosecution.

However, not all criminal indictments

impugn the defendant's truthfulness and

veracity. Since evidence of the trait

of truthfulness is not pertinent to the

criminal charges of conspiracy to dis-

tribute heroin or possession of heroin,

Rule 404 forbids its introduction as cir-

cumstantial evidence of innocence of

those crime.

[17] Furthermore, when Jackson

elected to take the stand at his trial he

did not automatically acquire the right

to bolster his credibility. Where an

accused takes the stand as a witness

he places his credibility in issue as does

any other witness. If the prosecution

chooses to attack his credibility, he may

then introduce evidence of his good

character for truthfulness and veracity:

The credibility of a witness may

be attacked or supported by evidence

in the form of opinion or reputation,

but subject to these limitations:

(1) the evidence may refer only to

character for truthfulness or un-

truthfulness, and (2) evidence of

truthful character is admissible

Only after the character of the

witness for truthfulness has been

attacked by opinion or reputation

evidence or otherwise.

Fed.R.Evid. 608 (emphasis added). We

find no evidence of an attack upon

Jackson's character for truthfulness.

During the cross-examination the

government attorney questioned Jackson

closely about his version of the facts

and pointed out conflicts between that

testimony and the testimony of other

witnesses. However, "[]the mere fact

that a witness is contradicted by other

evidence in the case does not constitute

an attack upon his reputation for truth

and veracity." Kauz v. United States,

188 F.2d 9, 10 (5th Cir. 1951). See

Homan v. United States, 279 F.2d 767,

772 (8th Cir. 1960). The district court

did not err in excluding the proffered

evidence.

IV. EVIDENCE OF MISCONDUCT NOT

CHARGED IN THE INDICTMENT

[18-20] Jackson further contends

that he was entitled to a mistrial when

the government elicited testimony from

a prosecution witness concerning

appellant's use of cocaine, thus con-

necting him with criminal conduct 16

outside the scope of the indictment.

It is generally improper to introduce

evidence of misconduct not charged in

the indictment. See Micheison v.

United States, 335 U.S. 469, 69 S.Ct. 213,

93 L.Ed.168 (1948); United States v.

Beechum, 555 F.2d 487, vacated on other

grounds, 582 F.2d 898 (5th Cir. 1978).

This general rule of exclusion is set

forth in Fed.R.Evid. 404(b):

Evidence of other crimes,

wrongs, or acts is not admissible

to prove the character of a person

in order to show that he acted in

conformity therewith. It may, how-

ever, be admissible for other pur-

poses, such as proof of motive,

opportunity, intent, preparations,

plan, knowledge, identity, or

absence of mistake or accident.

Since none of the recognized exceptions

to the rule are applicable in this case,

Rule 404(b) precluded the government

from introducing evidence of appellant's

other criminal acts to establish his

propensity to commit the crimes charged

in the indictment. When the witness

mentioned appellant's possession of

cocaine, the government attorney should

have changed the subject and should not

have asked her if she was "sure it was

cocaine." We are of the opinion, however,

that the appellant was not prejudiced by

the witness' testimony. The record

reveals that the properly admitted evi-

dence against appellant as to the con-

spiracy charge was so overwhelming that

the introduction of the inadmissible

evidence was harmless beyond a reasonable

doubt. United States v. Warren, 578 F.2d

1058, 1064 (5th Cir. 1978) (en banc);

United States v. Bokire, 523 F.2d 767,

769 n.2 (5th Cir. 1975). "An error

that might be prejudicial in a close case

does not require reversal when evidence

of the defendant's guilt is strong.”

United States v. Roland, 449 F.2d 1281

(5th Cir. 1971); United States v.

Lipscomb, 435 F.2d 795 (5th Cir. 1970).

The fact that curative instructions were

not given to the jury to disregard the

evidence does not require a mistrial.

United States v. Resnick, 488 F.2d 1165

(5th Cir. 1974), cert. denied, 416 U.S.

991, 94 S.Ct. 2400, 40 L.Ed.2d 769 (1974).

V. SUFFICIENCY OF THE EVIDENCE

TO PROVE POSSESSION

[21] Both Jackson and Porter chal-

lenge their convictions under Count Two

of the indictment charging them with

possession of heroin with intent to

distribute. The government bears the

burden of proving the elements of this

offense beyond a reasonable doubt. In

testing the sufficiency of the evidence

in this circumstantial evidence case,

the trial judge was required to determine

before submitting the case to the jury

whether a reasonably minded jury must

necessarily entertain a reasonable doubt

as to appellant's guilt. United States v.

Haggins, 545 F.2d 1009 (5th Cir. 1977).

Examining the case in the light most

favorable to the government, we agree

with appellants that, as a matter of law,

there was insufficient evidence of their

guilt of the substantive offense to

submit this charge to the jury.

[22-24] The government introduced

no evidence of appellants' actual poss-

ssion of the heroin. Proof of actual

possession is not necessary to sustain

appellants’ conviction, however, since

constructive possession of a "controlled

substance" violates 21 U.S.C. § 84l(a).

United States v. Garza, 531 F.2d 309

(5th Cir. 1976). Constructive possession

need not be exclusive but may be shared

by others, and such possession may be

established by circumstantial as well as

by direct evidence, Garza v. United

States, 385 F.2d 899 (5th Cir. 1967), but

neither presence in the area where the

narcotic is discovered nor association

with the person who does control the

drug is sufficient to prove possession.

United . States v. Stephenson, 474 F.2d

th Cir. 1973). To establish

constructive possession the government

had to prove appellants' dominion and

control over. the drug. Garza v. United

States, supra; United States v. Mendoza,

433 F.2d (5th Cir. 1976). Acknow-

ledging the ambiguity of the word

"possession" and mindful that a charge

of constructive possession should be

viewed critically and approached with

some caution, United States v. Phillips,

496 F.2d 1395, 1397 (5th Cir. 1974),

cert. denied, 422 U.S. 1056, 95 S.Ct.

2680, -2d 709 (1975), we are

unable to find any evidence in the

record establishing appellants’ dominion

and control over the heroin. The con-

versations overheard by the narcotics

agents suggested criminal activity and

indicated that a conspiracy was afoot.

Although several of these conversations

made reference to an impending shipment

from Los Angeles and to a suitcase at

the airport; they are alone insufficient

to prove appellants' possession of the

contraband. The heroin was at all times

located in Miss Johnson's unclaimed suit-

case at the airport. Miss Johnson was

not indicted as a coconspirator nor did

the government suspect her of any wrong-

doing. She testified that she never gave

Porter the claim check for her luggage.

Although appellants’ perambulations at

the airport took them very near the suit-

case, at no point did either appellant

attempt to claim the luggage from the

airlines officials. Moreover, when Porter

and Jackson were arrested at the airport

no claim check was found on either

appellant and, as one of the agents

testified, without the claim check the

airline baggage officials would not

release the baggage. Considering all

of the circumstances, we think that a

reasonably minded jury could not have

found that the evidence excluded every

reasonable hypothesis of appellant's

innocence of the crime of possession.

Consequently, this part of the government's

case should not have been submitted to

the jury.

AFFIRMED in part and REVERSED in

part.

(S88 F.2d 1046 [Feb. 2. 1979])

FOOTNOTES TO OPINION

l. Appellants received twelve year

sentences with a special parole period

of fifteen years under Count One and fif-

teen year sentences with a special parole

of fifteen years under Count Two. Jackson

was fined $15,000 on Count One and

$25,000 on Count Two; Porter was fined

$10,000 on both counts. Appellants’

sentences under the two counts run con-

secutively.

2. Sgt. Trucks testified that the

officers did not rent the adjacent motel

room for the express purpose of listening

to Jackson's conversations and that

prior to entering room 314 they had no

idea that they could overhear what was

said in room 312. The outcome of this

case Would not be affected even had

officers anticipated eavesdropping on

Jackson's conversations.

3-6 In order to avoid detecticn, the

officers did not open the connecting

door in their room so that they might

better hear what was said in the

adjoining room.

4. Miss Johnson testified that she

was unaware that the canvas bag she

transported from Los Angeles to Birming-

ham contained heroin, and the prosecutor

stated in court that the government

considered her to be an innocent partici-

pant in the criminal scheme. She testi-

fied that she met Porter in Los Angeles

in June 1977 and that he invited her to

his family reunion in Birmingham. On

July 6 a woman Miss Johnson did not know

came by her apartment and gave her $130

as air fare to Birmingham. She also

handed her a small canvas bag and re-

quested that she pack it with the things

she was carrying on her trip. The

stranger told Miss Johnson that Porter

would pick her up at the Birmingham

airport. Appellants contend that the

witness' testimony as to what the uni-

dentified woman said when she brought

the money and canvas bag to the witness

at her Los Angeles apartment violated

the hearsay rule and the Confrontation

Clause of the Sixth Amendment. We

disagree. The Federal Rules of Evidence

exclude from the operation of the hearsay

rule any oral statement not intended as

an assertion. F.Rule Evid. 801l(a)--

Furthermore, an out-of-court statement

that is not offered as proof of the mat-

ter asserted therein is not hearsay.

F.Rule Evid. 80l(c). We think that the

out-of-court statements fall within that

class of "'cases in which the utterance

is contemporaneous with a nonverbal act,

independently admissible, relating to

that act and throwing some light upon

it.'" United States v. Annunziato,

293 F.2d 373, 377 (2d Cir. 1961) (quoting

Morgan, A Suggested Classification of

Utterances Admissible as Res Gestae, 31l

Yale L.J. 229, 236 (1922). Since the

unidentified woman in Los Angeles was

not a witness against the appellants,

there was no Confrontation Clause viola-

tion in this case.

5. Since we find no Fourth Amendment

violation in this case, we need not

address the question of Porter's "stand-

ing" tc challenge the legality of the

agents' surveillance of conversations

between Jackson and Beverly Pertilla.

We note, howewer, that the Supreme

Court in the recent case Rakas v.

Illinois, U.S. , 99 S.Ct. 421,

58 L.bd.2d 387 (1978), disapproved of

the use of "standing" analysis in the

Fourth Amendment context and favored

an approach that focuses on a particular

defendant's rights under substantive

Fourth Amendment iaw.

6. Katz was not the first case to hold

that conversations can be the object of

a Fourth Amendment "search and seizure."

See Wong Sun v. United States, 371 U.S.

TIL, 83° 8Ce, 407, 9 L.Ed.2d 441 (1963);

Silverman v. United States, 365 U.S. 505,

81 S.Ct. 679, 5 L.Ed.2d 734 (1961).

Ze Although Katz is generally under-

stood as enunciating a "reasonable

expectation of privacy" standard, this

language is actually taken from Justice

Harlan's concurring opinion. 389 U.S.

at 360, 88 S.Ct. 507. He explained this

standard as follows: "[T]here is a

twofold requirement, first that a person

have exhibited an actual (subjective)

expectation of privacy and, second, that

the expectation be one that society is

prepared to recognize as 'reasonable.'"

389 U.S. at 361, 88 S.Ct. at 516. The

majority employed similar language when

it held that the government's eaves-

dropping activities “violated the

privacy upon which [petitioner] justifia-

bly relied...." 389 U.S. at 353, 88 S.Ct.

at 512. The Court in United States v.

White, 401 U.S. 745, 752, 91 S.Ct. 1122,

29 L.Ed.2d 453 (1971), also speaks in

terms of a "justifiable expectation of

privacy." In its most recent pronounce-

ment, the Court interprets Katz as arti-

culating a "legitimate expectation of

privacy" standard. Rakas v. Illinois,

supra, U.S. at _, 99 S.Ct. at 430.

In a footnote the Court provides some

guidance as to the meaning of "“legiti-

mate":

"(A] ‘legitimate’ expectation of

privacy by definition means more

than a subjective expectation of not

being discovered. A burglar plying

his trade in a summer cabin during

the off season may have a thoroughly

justified subjective expectation of

privacy, but it is not one which the

law recognizes as ‘legitimate.'

His presence, in the words of

[Jones v. United States, 362 U.S.

257, ’ 0 S.Ct. 725, 4 L.Ed.2d

576] (Harlan, J., concurring)."

Rakas v. Illinois, supra, v8. a6

nel2, 99 S.Ct. at 550 ee eB

Whenever we use the phrase "reasonable

expectation of privacy" in this opinion,

we man to incorporate the concepts of

"justifiability” and "legitimacy." See

enerally Note, 76 Mich. L.Rev. 154,

18 n.64 (1977).

8. "What a person knowingly exposes to

the public, even in his own home or

office, is not a subject of Fourth

Amendment protection." 389 U.S. at 35l,

88 S.Ct. at 5ll.

9. "A person's home holds a favored

position in the list of those areas which

are protected from unreasonable searches

and seizures." United States v. Davis,

supra at 977.

10. “The risk of being overheard by an

eavesdropper or betrayed by an informer

or deceived as to the identity of one

with whom one deals is probably inherent

in the conditions of human society. It

is the kind of risk we assume whenever

we speak." Hoffa v. United States, 385

U.S. 293, 303, 87 S.Ct. 408, 17 L.Ed.2d

374 (1966), quoting Lopez v. United

States, 373 U.S. 427, 465, 83 S.Ct.

1381, 1402, 10 L.Ed.2d 462 (1963)

(Brennan, J., dissenting).

ll. "Not every breach of etiquette poses

a constitutional issue." United States

v. Sedillo, 496 F.2d 151, 152 (9th Cir.

1974). See United States v. Williams,

581 F.2d 451, 454 (5th Cir. 1978);

United States v. Pisch, 474 F.2d 1071,

Cir.), cert. denied, 412 U.S.

921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973);

Anspach v. United States, 305 F.2d 48

(10th Cir.), cert. denied 371 U.S. 826,

83 S.Ct. 46, 9 L.Ed.2d 65 (1962).

12. We do not read Williams as requiring

a perfunctory application of the open

fields--curtilage distinction. Rather,

we think that the place from which the

agents receive their sensory impressions

is merely a factor to be considered in

evaluating the reasonableness of privacy

expectations. See United States ex rel.

Gedko v. Heer, 406 F.Supp. 609 (W.D.Wis.

9 W ams does not foreclose the

possibility that this court may, under

different facts, find a Fourth Amendment

violation even though the government

agents make their observations from an

"open field."

13. We note that under the Katz expecta-

tions test it would be possible for a

police officer, using only his natural

senses, to commit an illegal search and

seizure without engaging in a physical

trespass. See United States v. Case,

435 F.2d 766 (7th Cir. 1970). The Court

in Katz did not restrict its holding

that a nontrespassory surveillance

could violate the Fourth Amendment to

electronic eavesdropping cases. We

therefore reject as overly broad the

government's proposed rule that any

information obtained by an officer using

his natural senses from a place where he

has a legal right to be is admissible

evidence. Cases may arise in which a

police officers, though legally in the

place from whence he makes his observa-

tions, nevertheless infringes on the

privacy upon which an individual justi-

fiably relied.

14. Appellant's attempts to distinguish

Fisch are unpersuasive. Jackson asserts

that the court's conclusion that there

was no justifiable reliance on privacy

is bottomed on the fact that one critical

conversation was audible to an officer

while in the middle of his room. As the

language quoted in text indicates, how-

ever, the Fisch court declined to "divide

the listening room into privileged or

burdened areas." See United States v.

Martinez-Miramontes, 494 F.2d 808, 810

(th Cir. 1974). Porter Niccinantehes

Fisch by pointing out that the officers

at case had a high degree of

probable cause is immaterial. "Searches

conducted without warrants have been held

unlawful ‘notwithstanding facts unques-

tionably showing probable cause.'"

Katz, supra 389 U.S. at 357; United

States v. Shima, 545 F.2d 1026 (5th Cir.

15. Although the court's opinion does not

detail the precise position from which

the agent intercepted the conversations,

he apparently had no need to put his ear

to the apartment door as the occupants

"were speaking so loudly that their voices

were clearly audible in the hallway."

United States v. Llanes, supra at 882.

However, we do not think that placing an

ear next to the door converts otherwise

permissible surveillance into an illegal

search.

16. The following exchange took place

during the government's questioning of

Beverly Pertilla:

Q What, if you recall, did

Mr. Jackson bring with hin,

if anything, when he came

back to the room?

A A pizza pie and a Sprite.

Anything else?

A And I think he had a small

amount of cocaine, but I

am not positive that is what

it was.

Q When arrived back, what did

you do? Had the pizza been

opened. ?

A No, we ate it. I had a small

piece because I had eaten

dinner already. And he ate

the pizza.

Q Are you sire it was a Sprite?

Ye re aeeemeree

A Well, I don't know whether

I had any or not.

Q You sure it was cocaine?

A Perhaps.

17. Appellants also contend that the

evidence was insufficient to support a

conviction on the conspiracy count.

Taking the evidence in the light most

favorable to the government, Glasser v.

United States, 315 U.S. 60, 80, 62 S.Ct.

457, 86 L.Ed. 680 (1942), we hold that

reasonable jurors could find the evidence

inconsistent with every hypothesis of

innocence. United States v. Moore, 505

F.2d 620, 623 (5th Cir. 1974), cert.

denied, 421 U.S. 918, 95 S.ct. 1581, 43

L.Ed.2d 785 (1975). The record reveals

ample evidence to support appellants'

conspiracy convictions.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.