Petition — Brown v. United States

; Supreme Court, U. & ° :

FILED

8-1864 JUN 1 1979

MICHAEL RODAK, JR., CLERN

No.

‘* a]

In Che Supreme Court

@f Che United States

October Term, 1978

MAE LILLIAN BROWN,

a/k/a ‘“‘CHI CHI,”’

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Joel L. Wohligemuth

Prichard, Norman & Wohlgemuth

1100 Philtower Building

Tulsa, Oklahoma 74103

Attorneys for the Petitioner

IYPE SERVICE CO., Law Bret Printing Division, 807 S. Quaker, Tulsa, OK 74120 (918) $87-2082

Page

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Statutory Provisions Involved ...................... 2

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The Decision Of The United States Court Of Appeals

For The Tenth Circuit Which Brown Seeks To Have

’ This Court Review By Certiorari Is In Conflict With

Decisions Of This Court And Other Circuit Courts of

ee ee, ok. cas ch weih'y sas aes 8

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Appendix ‘‘A’’: Opinion Of The United States Court

of Appeals For The Tenth Circuit,

dated February 15, 1979........... la

Appendix ‘‘B’’: Statutory Provisions............. 26a

Appendix ‘‘C’’: Judgment and Probation/Commit-

ment Order of the United States Dis-

trict Court For The Northern District

ee re ee ws 27a

Appendix ‘‘D’’: Judgment of the United States Court

of Appeals For The Tenth Circuit . .28a

Order Denying Rehearing and Sug-

gestion For Rehearing in Banc..... 29a

Corrected Order Denying Rehearing

and Suggestion for Rehearing in

SEG Wee. a 6 eye ss @ 0-0 Ae 6 30a

ii

Page

TABLE OF CASES

Berger v. United States, 295 U.S. 78 S.Ct. 629,

Fe Es PDE ioa cb eee Beales aE CA ebakas 13

Kotteakos v. United States, 328 U.S. 750, 66 S.Ct.

1239, 90 L.Ed. 1557 (1946) ........... 9, 10, 11, 14, 15

United States v. Bertolotti, 529 F.2d 149

CR RES 2 oe cca sake dehuka beaks esas 13,14

United States v. Butler, 494 F.2d 1246, 1256

EE EE ‘ys vin neds wate tla eee eda Wace 10, 12

United States v. Faicone, 311 U.S. 205, 210, 61

S.Ct. 204, 207, 85 L.Ed. 128, 132 (1940) ........... 14

United States v. Hobson, 519 F.2d 765, 775

Sr ee |. aie meee een beset) Gwe asks 12

United States v. Sanchez, 508 F.2d 388, 393

Eee OUTED os ae Gs ck acalod Tae ares Nae kee ies 6 14

United States v. Sperling, 506 F.2d 1323

ee, SPs Occ ca adenwsichdeate. ¢eetoawe 12, 13

STATUTES

21 United States Code §841(a)(1) .............. 3,4, 5,6

21 United States Code §843(b) ................ 3.4.3.7

21 United States Code §846 ................... 2, 3, 4, 8

20 United Biates Cote SIZSGE) ooo ncn cbs cccensccseces 2

OTHER AUTHORITY

Devitt & Blackmar, Federal Jury Practice &

Instructions (3rd Ed. 1977), §27.16..............5. 12

No.

In Che Supreme Court

Of The United States

October Term, 1978

MAE LILLIAN BROWN,

a/k/a ‘‘CHI CHI,”’

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF PETITIONER

To The Honorable, The Chief Justice and Associate Jus-

tices of The Supreme Court of the United States:

Mae Lillian Brown a/k/a ‘‘Chi Chi,’’ (hereinafter

**Brown’’), the petitioner herein, prays that a writ of cer-

tioriari issue to review the judgment of The United States

Court of Appeals For The Tenth Circuit entered in the

above-entitled case on the 15th day of February, 1979.

~— ws

Opinions Below

The opinion of the United States Court of Appeals

For The Tenth Circuit is unreported and is printed in Ap-

pendix ‘‘A’’ hereto, infra., p. la. The judgment of the

United States Court of Appeals For The Tenth Circuit is

printed in Appendix ‘‘D”’’ hereto, infra., p. 28a. The journal

entry of judgment of the United States District Court For

The Northern District of Oklahoma is printed in Appendix

**C”’ hereto, infra.

Jurisdiction

The judgment of the United States Court of Appeals

For The Tenth Circuit was entered on February 15, 1979.

A timely petition for rehearing and suggestion for rehear-

ing in banc was denied on April 27, 1979. On May 1, 1979

the order of April 27, 1979 was vacated and in lieu thereof

a corrected order was entered (Appendix ‘‘D,”’ infra.,

p. 30a). The jurisdiction of the Supreme Court is invoked

under Title 28, United States Code, §12.4(1).

Question Presented

The proof at trial may have been sufficient to sup-

port the conclusion that each defendant, including Brown,

participated in separate individual conspiracies with the

central actor of the alleged single conspiracy, a large drug

dealer, to violate the provisions of 21 U.S.C. §841(a)(1)

and 843(b). The question thus presented is: Is such proof

of individual conspiracies, coupled with evidence of large

amounts of narcotics being distributed, sufficient under

Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239,

90 L.Ed. 1557 (1946) to impose guilt upon Brown as a

knowing participant in a single conspiracy to violate the

foregoing federal narcotics laws?

Statutory Provisions Involved

This case involves a charge under 21 U.S.C. §846 of

~~ eo

conspiracy to violate certain of the federal narcotics laws,

to-wit: 21 U.S.C. §841(a)(1) aind 21 U.S.C. §843(b). Said

statutes, and sections thereof, read as follows:

21 U.S.C. §846: ‘‘Any person who attempts or con-

spires to commit any offense defined in this subchap-

ter is punishable by imprisonment or fine or both

which may not exceed the maximum punishment pre-

scribed for the offense, the commission of which was

. the object of the attempt or conspiracy.”’

21 U.S.C. §841(a)(1): ‘‘Except as authorized by this

subchapter, it shall be unlawful for any person know-

ingly or intentionally —

(1) To manufacture, distribute or dispense, or

possess with intent to manufacture, distribute, or dis-

pense, a controlled substance.”’

21 U.S.C. §843(b): ‘‘It shall be unlawful for any

person knowingly or intentionally to use any commu-

nication facility in committing or in causing or facili-

tating the commission of any act or acts constituting a

felony under any provision of this subchapter or sub-

_ chapter II of this chapter. Such separate use of a

communication facility shall be a separate offense

under this subsection. For purposes of this subsection,

the term ‘communication facility’ means any and all

public and private instruments used or useful in the

transmission of writing, signs, signais, pictures, or

sounds of all kinds and includes mail, telephone,

wire, and all other means of communication.’’

The case also involves the charge that Brown violated

the substantive provisions of 21 U.S.C. §843(b), supra.

Statement of the Case

The Indictment.

On March 29, 1977 Brown and fourteen others were

charged by indictment with violation of 21 U.S.C. §846 as

follows:

‘*1. Knowingly and intentionally to possess with in-

tent to distribute and to distribute heroin, a Schedule

I narcotic drug controlled substance, contrary to Title

21, United States Code, Section 841(a)(1);

2. Knowingly and intentionally to possess with intent

to distribute and to distribute cocaine, a Schedule II

narcotic drug controlled substance, contrary to Title

21, United States Code, Section 841(a)(1);

3. Knowingly and intentionally to use a communica-

tion facility, that is a telephone, in committing, caus-

ing the commission of, and facilitating the commission

of the possession with intent to distribute, and the

distribution of, narcotic drug controlled substances,

which are felonies under Title 21, United States Code,

Section 841(a)(1), contrary to Title 21, United States

Code, Section 843(b).”’

The conspiracy charged is alleged to have occured from

January 1, 1977 to February 12, 1977. The central figure

of the claimed conspiracy was one John Hubert Thompson

(‘‘Thompson’’). According to the indictment, the objects

of the conspiracy were to be accomplished by Thompson’s

procuring of heroin and cocaine from conspirator James

Calvin Anderson and ‘‘others’’ and the transportation of

the narcotics by Thompson to Tulsa, Oklahoma. It is

charged that Thompson then diluted the drugs, repack-

aged them in smaller quantities, and resold the drugs to

**various other co-conspirators’’ who are alleged to have

diluted and/or repackaged the drugs and resold the same

to other customers. Defendant co-conspirators Carlette

Jones (Thompson’s daughter) and Karen R. Brooks are

charged with furthering the conspiracy by receiving orders

for narcotics from customers, transmitting the orders to

Thompson, and selling heroin for Thompson. The indict-

i en

ment further states that large quantities of heroin and

diluting materials would be stored by Anderson at his res-

idence in Fresno, California and that Thompson made

distributions of large quantities of drugs in Fresno,

California.

It is claimed in the indictment that the foregoing

objects of the conspiracy were effected by the fifteen

named defendants and the unindicted co-conspirators

through the commission of approximately sixty-six overt

acts in the Northern District of Oklahoma and elsewhere.

Substantially all of the overt acts charged in the indictment

involved intercepted wire (telephone) communications

allegedly relating to transactions in narcotics involving the

~ defendants and other co-conspirators.

Count I of the indictment sets forth the conspiracy

described above. All but two of the remaining counts (I]

and XVII) involve the separate charge that Thompson and

one other co-conspirator (depending on the count) violated

21 U.S.C. §843(b) by knowingly and intentionally using a

communication facility, namely a telephone, in commit-

ting, causing the commission of, and facilitating the com-

mission of the knowing and intentional possession with

intent to distribute and the distribution of controlled sub-

stances, felonies under 21 U.S.C. §841(a)(1).'

The Evidence.

Karen Brooks (‘‘Brooks’’), an alleged co-conspirator

and defendant, was the government’s chief witness at trial.

She testified that she distributed drugs for Thompson, pri-

marily $50.00 quantities of heroin and cocaine. As a result

of her work for Thompson she would be paid from $300.00

‘Counts XI and XIV are the only counts (apart from Count I) which

do not involve alleged violations of 21 U.S.C. §843(b). These counts

claim that Thompson violated 21 U.S.C. §841(a)(1) by the distribution

of heroin.

to $500.00 per day. If Thompson’s supply of heroin and/or

cocaine were depleted, she would refer customers to other

defendants, including Brown. She further testified on

direct examination that in late January or early February,

1977 she was present when Brown purchased two quarter-

ounces of heroin from Thompson. Brooks concluded her

direct examination by stating that Brown, and the other

defendants on trial, each live in North Tulsa and know

each other, and that Brown was acquainted with James

Calvin Anderson, a/k/a Pete, an alleged co-conspirator

from California.

On cross-examination it was stipulated that Brooks

had pled not guilty to the indictment and waived trial by

jury. Brooks testified that it was her understanding that if

she were to testify in this case, the charges against her

might be dismissed or she may receive probation. She fur-

ther stated on cross-examination that she had never per-

sonally witnessed Brown selling or distributing narcotics.

Brooks further testified that her statement on direct exam-

ination that Brown distributed heroin was based on tele-

phone calls she had received from Brown wherein Brown

stated that ‘‘somebody wants something.’’ She testified

that on two occasions Brown called her requesting narco-

tics. According to Brooks, the first call was in January or

February and Brown had requested a $50.00 quantity of

heroin. Brooks testified that she advised Brown that she did

not have any heroin. She testified to a second telephone

conversation wherein Brown allegedly ‘‘needed some

dope.’’ Brooks did not know whether Brown ever received

any drugs as a result of that alleged call.

On further cross-examination and then upon redirect

examination by the government, Brooks admitted that the

claimed occurrences at Thompson’s house whereby Brown

allegedly purchased heroin from Thompson did not occur

fe

in late January or early February, 1977 as originally testi-

fied to.?

The evidence presented against Brown, apart from

the Brooks testimony, consisted of tape recordings of tele-

phone conversations. To the extent that such conversations

were intelligible, they apparently involved attempts to pur-

chase cocaine from Thompson. Some of the calls involve

conversations between Thompson and Brown, others in-

volved calls between Thompson and third parties, and still

others involved conversations between Brown and the

defendant Charles Etta Saulter, an alleged co-conspirator.

Apart from Brooks’ testimony, there was no evidence

presented at trial by the government that Brown actually

purchased or distributed heroin, cocaine, or any other

controlled substance. Also, the evidence disclosed that the

drug agents monitoring the wiretap at no time notified sur-

veillance following any telephone conversation involving

Brown. Brown did not testify.

With respect to the substantive charge against Brown

for violation of 21 U.S.C. §843(b), the indictment alleges

that Brown and Thompson. engaged in a telephone conver-

sation at 1:13 a.m. on February 14, 1977 wherein they dis-

cussed, in substance, the sale of cocaine by Thompson to

Brown in violation of the statute. The specific telephone

call referred to was introduced by the government as Call

No. B-418, and a tape of that conversation was played to

the jury. In that conversation Brown states that she wants

to come by ‘‘and pick up some of those dresses.’’ Thomp-

son apparently consents and the call concludes with Brown

Stating ‘‘I’ll see you in a minute.’’ There was no evidence

introduced by the government to show that Brown there-

after went to Thompson’s house to take delivery of cocaine

or any other narcotics. There was no evidence that surveil-

?The indictment charges a conspiracy occurring from on or about

January 1, 1977 until February 22, 1977. (R.Vol. I, p. 13).

lance was notified on the occasion of that conversation, or

that Brown was observed at any time at Thompson’s house

(except for the Brooks testimony — which would not re-

late to the occurrences of February 14.)

The Rulings Below

Brown moved for a judgment of acquittal on the con-

spiracy and substantive charges at the conclusion of the

government's evidence and again at the conclusion of all

of the evidence. The district court overruled Brown’s

motions. The jury returned a verdict against Brown, and

all other defendants on trial, on all counts. Pursuant to

said verdicts, the district court pronounced the foilowing

sentence: Brown was committed on Count I (21 U.S.C.

§846) to the custody of the Attorney General for imprison-

ment for a period of four vears, with a special parole term

of five years to commence at the expiration of the initial

sentence. On Count XV (the substantive charge) she was

committed to the custody of Attorney General for impris-

onment for a period of three years to run concurrently

with the sentence imposed in Count | (Appendix ‘‘A,’’

infra., p. 27a.

Upon appeal to the United States Court of Appeals

for the Tenth Circuit, the judgment of the district court

was affirmed, with Circuit Judge McKay dissenting (Ap-

pendix ‘‘A,”’ infra., p. 1a). The petition for rehearing and

suggestion for rehearing in banc was denied, with Circuit

Judge McKay voting to grant rehearing in banc.

REASONS FOR GRANTING WRIT

THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT WHICH

PETITIONER SEEKS TO HAVE THIS COURT RE-

VIEW BY CERTIORARI IS IN CONFLICT WITH

DECISION OF THIS COURT AND OTHER CIRCUIT

COURTS OF APPEALS.

The issue presented by this Petition, and the reasons

compelling certiorari, are succintly stated by Circuit Judge

McKay in the dissenting opinion:

**One does not have to have any sympathy for drug

dealers to express a deep concern about the erosion of

fundamental doctrines of liberty when that erosion

occurs in cases dealing with drug dealers. This case

represents One more example of the continuing erosion

of the concept that ‘[g]uilt with us remains individual

and personal, even as respects conspiracies. It is not a

matter of mass application.’ Kotteak@s v. United

States, 328 U.S. 750, 772 (1946).

- * *

In this case all that the evidence shows is that one

Thompson was a major drug dealer in Tulsa, Okla-

homa, and that these defendants obtained their sup-

plies (apparently for resale) from him. If we take

seriously our stated standard that criminal cases must

-be proved beyond a reasonable doubt, I do not be-

lieve that this record supports a finding that these

customers of one dealer were connected together in a

common conspiracy. What is missing is the ‘rim of

the wheel to euclose the spokes’ of a conspiracy. See

Kotteakos v. United States, 328 U.S. at 755. Even

more alarming is the absence of any evidence under

either a civil or criminal standard of proof which

would show that these defendants were knowingly

involved by agreement with James Anderson —

Thompson’s California supplier. The majority in this

case makes that leap by further enshrining in the cri-

minal law what is essentially the ‘affecting commerce’

rationale of Wickard v. Filburn, 317 U.S. 111 (1942).

It is obvious why some prosecutors, with our aid and

comfort, are enamored of bringing allegations of mass

conspiracy. No matter how thin the proof as to indi-

—

vidual defendants, once the jury has looked at the

sheer numbers involved and has been shocked by the

extensive evidence of criminal activity by a remote

actor, the chance that they will pay serious attention

to the absence of substantial proof as to one individual

is not particularly great. A doctrine which permits

this impairs liberty.

To avoid the obvious prejudice attending a mass trial,

we Ought to return to the principles enunciated in

Kotteakos and United States v. Butler, 494 F.2d 1246

(10th Cir. 1974). Although it may represent some in-

convenience to the government, my position here

would not prevent the government from legitimately

prosecuting those who were in fact guilty. In any

event, mere inconvenience to the government has

never been an adequate justification for the erosion

of principles governing fair trial. See Kotteakos v.

United States, 328 U.S. at 773.’’ (Appendix ‘‘A,”’’

infra., pp. 24a-2Sa).

In Kotteakos the district court was of the opinion that

the conspiracy charged therein (to violate the provisions of

the National Housing Act) was established by proof that

each defendant was linked to the central figure of the con-

spiracy in one or more transactions and that it was there-

fore possible on the evidence for the jury to conclude that

al] were in a common venture. 328 U.S. 750, 768-769. The

Supreme Court rejected the district court’s theory of con-

spiracy, stating the now oft’ cited proposition that proof

of a single conspiracy requires proof of the existence of a

‘trim of the wheel to enclose the spokes”’ of the conspiracy.

(/d. at 755)

The crux of the decision of the Court of Appeals in

the instant case is stated at page 18 of the opinion (Appen-

dix ‘‘A,"’ infra:, p. 14a:

‘*We have discussed the evidence in detail earlier. It

oe

suffices to note that it demonstrated that Anderson

supplied drugs from California to Thompson, the

Tulsa wholesaler, who distributed them to the various

street dealers, including these three appellants. From

evidence of the volume and nature of their operations

an inference may be-drawn of awareness by appellants

of the scope of the narcotics conspiracy.

Where large quantities of narcotics are being distrib-

uted, each major buyer may be presumed to know

that he is part of a wide-ranging venture, the success

of which depends on performance by others whose

identity he may not even know. United States v.

Heath, 580 F.2d 1011, 1022 (10th Cir.)”’

The conceptual problem with the Court of Appeals analysis

and the direct conflict with Kotteakos are clear. The court

first finds the distribution of ‘‘large quantities of narco-

tics,’ and utilizes that finding as a predicate to attribute a

certain ‘‘presumption’’ to each ‘‘major buyer.’ There is

no discussion of any evidence which would show a con-

spiratorial agreement between Brown and Anderson, or

with any other alleged co-conspirator apart from Thomp-

son — nevertheless, the critical conclusion of knowing

participation in a single conspiracy obtains.

The lower court’s decision is premised upon the fol-

lowing deductive process which is patently inconsistent

with the requirements of Kotteakos, to-wit: (i) proof that

each defendant purchased narcotics from a single supplier;

(ii) proof of a significant volume of narcotics in the over-

all drug operation (including narcotics possessed by a co-

conspirator, not linked by the evidence to the defendants;

(See, Dissenting Opinion, footnote 2); (iii) the linkage of

items (1) and (2) above to support the ‘‘major buyer’’ prop-

osition and the attendant presumption of knowledge of the

overall conspiracy (Appendix ‘‘A,”’ infra., p. 14a); and (4)

—_~ ro

the resultant existence of a ‘‘common’’ narcotics scheme.

(Appendix ‘‘A,’’ infra., p. 14a).

The standard for determining the existence of a single

conspiracy is whether there was one overall agreement

among the parties to perform various functions in order to

carry out th. objectives of the conspiracy. United States v.

Hobson, 519 F.2d 765, 775 (9th Cir. 1975), cert. denied,

423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261. As Circuit

Judge McKay noted in his dissent, the present case, like

Kotteakos, involves substantial evidence of individual

conspiracies between each defendant, including Brown,

and the supplier Thompson. Evidence was also presented

of a conspiracy between Thompson and Anderson. (Ap-

pendix ‘‘A,’’ infra., p. 50). Thus, while the evidence pre-

sented at trial may have been adequate to demonstrate the

existence of multiple conspiracies, the evidence was woe-

fully inadequate to demonstrate the existence of an overall

scheme involving the central defendants Thompson,

Brooks and Anderson with the other named defendants.’

The problem with the indictment and proof in this

case is not new in federal narcotics prosecutions. Judge

Timbers, in United States v. Sperling, 506 F.2d 1323 (2d

Cir. 1974), issued an admonition to the United States

Attorneys’ Office in that case — which is directly appli-

cable here:

**In view of the frequency with which the single con-

spiracy vs. multiple conspiracies claim is being raised

on appeals before this Court, (citations omitted) we

‘At trial Brown requested an instruction to the jury indicating that

under the evidence it was permissible to find the existence of more

than one conspiracy, even though a single conspiracy was alleged. The

proposed instruction utilized the format provided in Devitt & Black-

mar, Federal Jury Practice & Instructions (3rd Ed. 1977), §27.16.

Such a curative instruction was suggested in United States v. Butler,

494 F.2d 1246, 1256 (10th Cir. 1974).

—

take this occasion to caution the government with re-

spect to future prosecutions that it may be unneces-

sarily exposing itself to reversal by continuing the

indictment format as reflected in this case. . . [i]t has

become all too common for the government to bring

indictments against a dozen or more defendants and

endeavor to force as many of them as possible to trial

in the same proceeding on the claim of a single con-

spiracy when the criminal acts could be more reason-

ably regarded as two or more conspiracies, perhaps

with a link at the top.’’ 506 F.2d at 1340-41.

Following Sperling, the Second Circuit in United

States v. Bertolotti, 529 F.2D 149 (2d Cir. 1975), reversed

the convictions obtained in the trial court for conspiracy

to possess and distribute controlled substances on the

grounds that the convictions were obtained on the theory

that all defendants were members of a single conspiracy

when in fact the proof disclosed multiple conspiracies.

Under such circumstances, the error of variance was com-

mitted. (/d., p. 154; Berger v. United States, 295 U.S. 78,

S.Ct. 629, 79 L.Ed. 1314 (1935). The Berto/o/ti court noted

that the existence of multiple groups within an alleged con-

spiracy may be considered as part of 01.2 integrated loose-

knit combination in instances where there exists a mutual

dependence and assistance among the spheres, a common

aim Or purpose among the participants, or a permissible

inference, from the nature and scope of the operation,

that each actor was aware of his part in a larger organi-

zation where others performed similar roles equally im-

portant to the success of the venture. United States v.

Bertolotti, 529 F.2d at 154. Without detailing specific evi-

dence presented in Berto/otti, it should be noted in that

case that the indictment included twenty-nine defendants

and additional unindicted co-conspirators. The proof

showed four major narcotics transactions with the defend-

ants Rossi and Coraluzzo as principal participants in all

x

transactions. Other alleged co-conspirators participated in

various ways in each transaction. The court found that the

only common factor linking the transaction was the pres-

ence of Rossi and Coraluzzo, which was not a sufficient

nexus for conspiracy. Kotteakos v. United States, 328

U.S. 750, 773-774, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

There was no evidence to show that Rossi and Coraluzzo

were conducting what could be seriously called a regular

business on a steady basis, and the scope of the operation

was defined only by Rossi’s resourcefulness in devising

new methods to make money. United States v. Bertolotti,

529 F.2d at 155.

The lower court, in affirming the conviction of Brown

on the conspiracy court, places substantial reliance upon

the testimony of Brooks, the unindicted co-conspirator

who attempted to provide evidence against defendants to

curry prosecutorial favor. The majority opinion cites

Brooks’ claim that all defendants were ‘‘sellers,’’ that she

would refer customers to defendants, that defendants ‘‘all

know each other,’’ and that Brown ‘‘knew the California

supplier Anderson.”’ (Appendix ‘‘A,”’ infra., p. 00). How-

ever, the court in its analysis apparently overlooked the

fact that Brooks did not recall when the transactions in

‘*dope’’ (either heroin or cocaine according to Brooks)

occurred, nor did she recall whether Brown ever received

any drugs as a result of any communication with Thomp-

son. Brooks was unable to recall the period of time during

which the alleged purchases by Brown occurred. It is clear

that Brooks’ claim that defendants were acquainted with

one another, and that Brown ‘‘knew’’ Anderson is insuffi-

ci€i: as a matter of law to prove participation in a criminal

conspiracy. United States v. Sanchez, 508 F.2d 388, 393

(Sth Cir. 1975); United States v. Falcone, 311 U.S. 205,

210 61 S.Ct. 204, 207, 85 L.Ed. 128, 132 (1940).

The analysis of the lower court is wholly inconsistent

~—

with the law of conspiracy as stated in Kotteakos and those

federal courts which have adhered to that doctrine. Cer-

tiorari should be granted to resolve this departure from

established precedent.

CONCLUSION

For the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

Prichard, Norman & Wohlgemuth

By Joel L. Wohlgemuth

1100 Philtower Building

Tulsa, Oklahoma 74103

Attorneys for the Petitioner

—ilia—

APPENDIX ‘‘A”’

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 77-1575, 77-1576, 77-1577

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VS.

EARL WATSON, TONY MAXWELL

and MAE LILLIAN BROWN,

, Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF OKLAHOMA

(D.C. No. 77-CR-42)

Joe] L. Wohlgemuth, of Prichard, Norman, Reed

& Wohlgemuth, Tulsa, Oklahoma, for Defendants-

Appellants.

Kenneth P. Snoke, Assistant United States Attorney,

Tulsa, Oklahoma, (Hubert H. Bryant, United States

Attorney, Tulsa, Oklahoma, on the brief) for Plaintiff-

Appellee.

Before HOLLOWAY and McKAY, Circuit Judges,

and STANLEY, District Judge.*

HOLLOWAY, Circuit Judge

*The Honorable Arthur J. Stanley, Jr. of the District of Kansas, sit-

ting by designation.

Defendants-appellants Watson, Maxwell, and Brown

have taken these timely direct appeals from convictions

under 21 U.S.C. §846, conspiracy to commit offenses de-

— 2a—

fined in 21 U.S.C. §841(a)(1),' (distributing or possessing

with intent to distribute, etc., a controlled substance) and

in 21] U.S.C. §843(b), (use of a communication facility to

facilitate the commission of offenses defined in 21 U.S.C.

§841(a)(1))? and from convictions of each appellant of a

substantive offense under §843(b) of such use of a tele-

phone. Appellants’ major contentions are that tape record-

ings of intercepted telephone conversations and transcripts

thereof were improperly permitted to be used against them,

that there was insufficient proof to support their convic-

tions, and that there was, in any event, no single conspir-

acy proved as charged. Several other arguments are also

made, and we will discuss all those having some substance.

The indictment charged fifteen individuals, including

appellants, with conspiracy knowingly and intentionally to

possess with intent to distribute and to distribute heroin

'21 U.S.C. §841(a)(1) provides:

(a) except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance; ...

Controlled substances are regulated by the Attorney General under

the authority vested in him by 21 U.S.C. §§811-812. They include sub-

stances such as heroin, cocaine, and marihuana. See 21 U.S.C. §812(c).

?On the conspiracy count, appellant Watson was commiiied to the

custody of the Attorney General for five years to be followed by a

special parole term of five years; he also received a concurrent four-

year sentence on the substantive count. Appellant Maxwell received a

ten-year sentence to be followed with a special! five-year parole term

on the conspiracy count and a concurrent, four-year sentence on the

substantive count. The court found that appellant Brown would not

benefit from the provisions of the Federal Youth Corrections Act, 18

U.S.C. §§5005-5026, as applied to young adult offenders, see 18

U.S.C. §4216, and sentenced her to four years to be followed by a

five-year special parole term on the conspiracy count. She received a

concurrent, three-year sentence on the substantive count.

— 3a —

and cocaine, and to use a telephone to facilitate commis-

sion of such offenses. In addition, appellants were each

charged with one count of knovingly and intentionally

using a communications facility, i.e., a telephone, to faci-

litate the accomplishment of and to accomplish the posses-

sion with intent to distribute and the distribution of heroin

and cocaine. The conspiracy involved a California sup-

plier, ‘‘Pete’’ Anderson, a Tulsa wholesaler, John Thomp-

son, assisted by one Karen Brooks, and several retailers or

street dealers, including appellants Watson, Maxwell, and

Brown.

Appellants claim there was insufficient evidence in

this case to support their convictions. Viewing all the evi-

dence, togther with all reasonable inferences therefrom, in

the light most favorable to the government, as we must,

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

Krohn, 573 F.2d 1382, 1385 (10th Cir.), cert. denied sub

nomine Hahn v. United States, 436 U.S. 949; United States

v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), we must dis-

agree with this contention. Yet, since appellants have chal-

lenged the admission in evidence of certain tape recordings

of telephone intercepts, and since without those recordings

the evidence might not support the adverse jury verdicts

rendered, we turn first to a consideration of the various

issues involving the use of those tapes.

Appellants Brown and Watson strenuously argue that

there was error in not suppressing tape recordings of certain

intercepted telephone communications, in not suppressing

transcripts of certain intercepted phone communications,

and in permitting transcripts of the tape recordings of the

telephone conversations to be used by the jurors.

These contentions are urged in propositions II, II], 1V and V of the

Brief for the Appellants, respectively claims of error in denying appel-

lant Brown’s motion to suppress tape recordings of certain intercepted

(continued next page)

— 4a -——

The admission of tape recordings in evidence is sub-

ject to the rules of evidence generally. This means that a

proper foundation must be laid for their admission, and

that they must be relevant and not privileged. In addition,

the Federal Rules of Evidence provide that the original

tape recordings be used, if possible,’ Rule 1002, and that

when telephone conversations are involved, evidence be

offered as to the correct telephone number, Rule 901(b)(6).‘

Appellants here make several specific challenges to the

foundation laid for playing of the tapes which we will

consider.

First, appellant Brown argues that there was improper

and inadequate identification of the speakers on certain

tapes for which agent Bell provided the voice identifica-

tion. This challenge is based on the claim that agent Bell

did not have sufficient opportunity to become acquainted

with appellant Brown’s voice in order to authenticate

tapes introduced at trial. Furthermore, it is claimed that

agent Bell’s familiarity with Brown's voice was developed

after the conversations in question transpired.

Rule 901(b)(5), F.R.E., provides one example of accept-

able voice identification as follows:

(5) Voice identification. Identification of voice,

whether heard firsthand or through mechanical or

electronic transmission or recording, by opinion based

wire communications for lack of intelligibility, in denying without a

hearing Watson's motion to suppress tape recordings of certain inter-

cepted wire communications for lack of intelligibility, in determining

that the government introduced evidence sufficient to authenticate

tape recordings of certain wire communications involving appellant

Brown, and in denying appellant Brown's motion to suppress tran-

scripts of certain tape recordings of certain intercepted wire

communications.

‘The government used original tapes in this case.

‘The record contains such evidence at III R. 267-68.

— 5a —

-<upon hearing the voice at any time under circum-

- Stances connecting it with the alleged speaker. (em-

phasis added).

As the Rule plainly says, familiarity with another’s

voice may be acquired either before or after the particular

speaking which is the subject of the identification. United

States v. Kirk, 534 F.2d 1262, 1277 (8th Cir.), cert. denied,

433 U.S. 907. Thus, the fact that Bell did not speak with

appellant Brown until after the date of the telephone inter-

cept did not prevent him from authenticating Brown’s

voice on tape introduced at trial. See, e.g., United States

v. Cox, 449 F.2d 679 (10th Cir.), cert. denied, 406 U.S.

934. Furthermore, we find that the record reflects that Bell

had ample time in which to become acquainted with

Brown’s voice. He had face-to-face conversations with her

on three occasions, and one of these conversations ex-

tended over half an hour. (II R. 216-17; IV R. 440). Any

doubts about Bell’s powers of recall were properly ques-

tions for the jury to determine. See United States v. Vento,

533 F.2d 838, 865 (3d Cir.); United States v. Rizzo, 492

F.2d 443, 448 (2d Cir.), cert. denied, 417 U.S. 944. We re-

ject appellant Brown’s argument based on United States v.

-McKeever, 169 F.Supp. 426 (S.D.N.Y.), rev’d on other

grounds, 271 F.2d 669 (2d Cir.), that the court improperly

gave the authentication question the jury. The trial judge

properly took evidence on the threshold question whether

Bell had any basis for identifying the voice and then left all

questions of weight and credibility for the jury.

Second, all appellants challenge the use of ‘the tapes

on the ground of unintelligibility. Where a tape recording

is objected to as unintelligible or inaudible, its admissibility

is within the sound discretion of the trial judge. United

States v. Brinkelow, 560 F.2d 1008, 1011 (10th Cir.);

‘United States v. Jones, 540 F.2d 465, 470 (10th Cir.), cert.

denied, 429 U.S. 1101; United States v. Hodges, 480 F.2d

— §6a —

229, 233-34 (10th Cir.). Unless the unintelligible portions

are so substantial as to render the recording as a whole un-

trustworthy, it may be admitted. United States v. Jones

supra, 540 F.2d at 470. The trail judge held a pre-trial

hearing’ at which he considered the issue of intelligibility

and exercised his discretion on this issue. From our inde-

pendent hearing of the tapes we conclude that there was no

abuse of the trial court’s discretion and no substantial un-

intelligibility productive of untrustworthiness.

Third, appellants argue that it was prejudicial error to

provide the jury with transcripts of the tapes during the

playing of the tapes. See generally United States v. Gerry,

515 F.2d 130, 143-44 (2d Cir.), cert. denied, 423 U.S.832

(use of transcripts upheld because trial judge had difficulty

understanding them). Proof was offered of accuracy of the

transcripts at a pre-trial hearing’ and the court permitted

their use during the playing of the tapes to permit clear

identification of the voices’? The trail judge, however, did

not admit the transcripts in evidence. Instead he gave a

‘Appellant Watson contends that his motion to suppress should have

been heard at this hearing along with those of his co-defendants and

that it was an abuse of discretion and a violation of due process for the

trial court to deny his motion to suppress on the ground that it was

untimely filed. We disagree and find no abuse of discretion in the

ruling.

*A judicial determination of the accuracy of transcripts is not a sine

qua non of their use, see United States v. Onori, 535 F.2d 938, 948

(Sth Cir.), but is a recommended practice in the absence of a stipula-

tion by counsel on the point, cf. United States v. Rochan, 563 F.2d

1246, 1250-52 (Sth Cir.) (accuracy a question of authentication).

"See United States v. McMillan, 508 F.2d 101, 105 (8th Cir.), cert.

denied, 421 U.S. 916. Use of transcripts here is not for purposes of

establishing that a particular voice belongs to a particular person, but

so that the jury may understand which voice the prosecution wants the

jury to believe belongs to a particular person. See e.g., 11 R. 225-26. In

this case the prosecution introduced oral testimony identifying the

voices on all tapes.

— 7a—

limiting instruction, which he repeated several times dur-

ing the trial, instructing the jury to use the transcripts only

to assist them in listening to the tapes and not to consider

the transcripts as evidence. In the sound discretion of the

trial judge, which was properly exercised here, such limited

use of transcripts is permissible. See United States v. John,

508 F.2d 1134, 1141 (8th Cir.), cert. denied, 421 U.S. 962;

United States v. McMillan, 508 F.2d 101, 105 (8th Cir.),

cert. denied, 421 U.S. 916.

We have considered all the contentions regarding the

playing of the tapes and the use of the transcripts and are

satisfied there was no reversible error. Our hearing of the

tapes persuades us that they are substantially accurate and

intelligible and that the transcripts are substantially accu-

rate as well. Therefore, with respect to the rights of these

three appellants there was no prejudicial error and no

abuse of discretion by the trial court in the procedure fol-

lowed regarding the tapes and the transcripts.!

With respect to their convictions under 21 U.S.C.

§846, all three appellants argue that the evidence was in-

*We have noted heretofore that Rule 104(a) of the Federal Rules of

Evidence places a responsibility on the trial judge for determining pre-

liminary questions as to the admissibility of statements of a cocon-

spirator. Such statements are not hearsay and are admissible if there is

substantial, independent, non-hearsay evidence demonstrating the

existence of a conspiracy involving the speaker and the defendant. See

United States v. Andrews, 585 F.2d 961, 965-66 (10th Cir.); United

States v. Bell, 573, F.2d 1040, 1043-44 (8th Cir.).

As the Be// case points out, such a determination on the admissibility

of an alleged coconspirator’s statement is now a preliminary question

for the judge, not the jury, to decide under Rule 104. United States v.

Bell, supra, 573 F.2d at 1043. However, as our Andrews opinion says,

evidence of the acts and statements of coconspirators may be admitted

prior to proof demonstrating participation in the conspiratorial scheme

by the objecting defendant, provided the foundation is subsequently

laid. 585 F.2d at 966; see United States v. Bell, supra, 573 F.2d at 1044.

No question on this procedure is raised by these appellants.

— 8a —

sufficient to support their convictions. More specifically,

appellants contend that the evidence fell far short of proof

beyond a reasonable doubt that each of them had the deli-

berate, knowing and specific intent to join the conspiracy

charged; and that, while viewed in the light most favorable

to the government the evidence showed several telephone

conversations with Thompson, that proof alone was insuf-

ficient to connect appellants with the conspiracy charged.

(Brief for the Appellants, Proposition VI, pp. 31, 37-38).

The basic rule for insufficiency of the evidence to sus-

tain a conviction challenged on appeal is stated by Judge

Hill in United States v. Twilligear, 460 F.2d 79, 81-82

(10th Cir.):

This court is bound to view the evidence presented in

the trail court in the light most favorable to the gov-

ernment to ascertain if there is sufficient substantial

proof, direct and circumstantial, together with reason-

able inferences to be drawn therefrom, from which a

jury might find a defendant guilty beyond a reason-

able doubt.

Of course, guilt is individual and personal, even as

regards conspiracies, and is not a matter of mass applica-

tion. United States v. Butler, 494 F.2d 1246, 1256 (10th

Cir.). And we agree that proof of the existence of a buyer-

seller relationship, without more, is inadequate to tie the

buyer to a larger conspiracy such as is charged here. See

United States v. Torres, 503 F.2d 1120, 1123 (2d Cir.);

United States v. Sperling, 506 F.2d 1323, 1342 (2d Cir.),

cert. denied, 431 U.S. 918. Moreover for a single act to be

sufficient to draw an actor within the ambit of a conspir-

acy to violate the narcotics laws, there must be independent

evidence tending to prove that the defendant had some

knowledge of the broader conspiracy, or the single act

must be one from which such knowledge.may be inferred.

United States v. Sperling, supra, 506 F.2d at 1342. For the

-— 9a —

inference of intent to join a conspiracy to be made from

proof of a single act, it must be such as to show the actor’s

knowledge of the existence and scope of the conspiracy,

and his belief that the benefit to be derived from his ac-

tions depends on the success of the acts of others. United

States v. Perry, 550 F.2d 524, 529 (9th Cir.).

A primary government witness was Karen Brooks, an

indicted coconspirator. She had waived a jury and was

awaiting trial and cooperated with the government in giv-

ing her testimony. On cross-examination she stated that it

was her understanding that the charges might be dismissed

against her or that she might receive probation if she testi-

fied. She said this was what her attorney hoped would

happen. If she had not had that impression, she admitted

she probably would not have testified against the defend-

ants. (III R. 310-315).

Brooks testified that she had known John Hubert

Thompson (‘‘J.T.’’), the Tulsa wholesaler in this drug

operation, for nine months. She distributed heroin and

cocaine for him and had a telephone installed at his resi-

dence in her name. When business was good, Brooks would

normally sell ‘‘pretty close’’ to $2,000 worth of heroin and

cocaine in a day in quantities priced at $50. (Id. at 289).

She worked as a street dealer, turning over the bulk of her

proceeds to Thompson, but when he was away she would

handle larger transactions for him. She testified that she

knew ‘‘Pete’’ Anderson, the California supplier, and that

Thompson got his ‘‘dope’’ through Anderson. (Id. at 303).

She referred to various street dealers in her testimony, in-

cluding all three of the appellants.

Brooks testified that she knew Watson and could iden-

tify him; that she had been present when Thompson sold

heroin to Watson; that she had delivered heroin to Watson

for Thompson and that once Watson told her he had sev-

eral people waiting in the car for ‘‘dope.’’ She knew Wat-

— 10a —

son was a user of drugs himself. Brooks further testified

that she knew Maxwell; that if she ran out of heroin or

cocaine, she would refer her customers to him; that she

sold heroin to Maxwell when Thompson was away; and

that Maxwell distributed drugs. Brooks also testified that

she knew appellant Brown, who was known as ‘*Chi Chi’’;

that Brown was a seller; that when Brooks ran out of

drugs she would refer customers to appellant Brown; that

Brooks was present when Brown. brought heroin from

Thompson; and that Brown bought heroin from Thomp-

son; and that Brown knew the California supplier Ander-

son. Brooks further said all three defendants knew each

other. (III R. 285-299).

In addition to the testimony of Karen Brooks, there

was government evidence concerning telephone calls in-

volving all three appellants. For reasons already stated, we

have held that there was no error in permitting the playing

of tapes of these calls and the use of transcripts relating

to them. This evidence included the following:

As to Watson there was evidence of 13 telephone calls

occurring between February 10 and February 13, 1977.

Eight of these were identified as calls between Watson and

Thompson which occurred on February 12. In the first

call at 1:23 a.m., Watson ordered *‘300’’ [dollars] of

“‘dog,”’ identified as heroin. (I R. 181-82; III] R. 273;

IV R. 478-81, 512). Three hundred dollars would have

purchased a quarter ounce from Thompson. Thompson

invited Watson to come to his house for delivery. At about

1:45 a.m., surveillance officers saw an orange Vega arrive

at Thompson’s house, where a passenger got out and en-

tered the house. In a second call at 11:32 a.m. that day,

Watson ordered another $100 worth of heroin, to be de-

livered at a Bestyet market. Later surveillance officers saw

Watson exit the same Vega and meet with Thompson at

a Bestyet market in Tulsa, and a hand-to-hand exchange

between Watson and Thompson occurred. (IV R. 488-92).

—illa—

At 10:02 p.m. on February 12, Watson arranged a

purchase and pick-up of heroin and cocaine, telling Thomp-

son where he was. Surveillance officers observed Thompson

leave his house at 10:16 p.m. He met Watson at a laundro-

mat where Watson walked to Thompson’s van, and leaned

on the driver’s window of the van.’ Watson returned to

the other car and drove off with another occupant, Mark

Allen Hart. Officers stopped them a few blocks away and

found that Hart possessed heroin.

As to Maxwell, the testimony of Karen Brooks was

supplemented with the playing of tapes of telephone con-

versations with Thompson. Nine calls between Maxwell

and Thompson, all of which occurred during a four-day

period from February 11 through February 14, 1977, were

introduced. For example, at 12:46 p.m., on February 12

Maxwell inquired about an ‘‘oz’’ for ‘‘15,’’ an ounce

of drugs for $1,500. (III R. 275). At 6:05 p.m. that day

Maxwell ordered ‘‘a quarter or two of ‘that girl’,”’ identi-

fied as cocaine. (Id. at 272).'° Also at 9:38 p.m., on Febru-

ary 12, Maxwell told Thompson that he had ‘‘some people

visiting’’ and that ‘‘they wanted one of those quarter

things of girl.’” Thompson told Maxwell that he could

come over and get a quarter. In a call on the night of

February 14, after Thompson asked if he knew someone

who wanted ‘‘a quarter of dog’’ (quarter ounce of heroin),

Maxwell said ‘‘Yeh.’’ (I R. 236). Later that night arrange-

ments were made during a call that Maxwell would meet

Thompson at the Blue Goose. Thompson was followed

thereafter from his house to the Blue Goose Club, where

he met with a black male in a vehicle. (III R. 414-16).

*Such circumstantial evidence may indicate a delivery of drugs. See

United States v. Baldarrama, 566 F.2d 560, 565 (Sth Cir.).

'*The repeated use of cryptic expressions by members of a narcotics

conspiracy has been described as a ‘‘narcotics code."’ United States

v. Manfredi, 488 F.2d 588, 597 (2d Cir.), cert. denied, 417 U.S. 936.

— 12a—

As to Brown, the government also introduced proof

of numerous calls, most of them occurring on February

13 and 14, 1977. For example at 11:04 a.m., on February

11, Thompson referred another alleged coconspirator,

Alfred Ray Jennings (Fred), to ‘Chi Chi’’ for ‘‘some girl.”’

Several calls concerned an offer by appellant Brown to

trade a black suede and mink coat for drugs. At 4:47 p.m.

on February 13, during one call Thompson referred a cus-

tomer who identified herself as ‘‘Carol’’ to Brown. At

5:12 p.m. that same day Brown asked Thompson if she

could come by his residence and pick up ‘‘number 1

dresses,”’ identified as quantities of cocaine. (III R. 272-

75; IV -R. 445-46). Again at 1:13 a.m., on February 14

Brown asked permission to come by Thompson’s house to

pick up ‘‘some of those dresses.’’ (II] R. 273). At 2:44

a.m., On February 14 Brown asked Thompson if she could

come by ‘‘again’’ for ‘‘one of those 50’s till in the morn-

ing.”’ (1 R. 230; IV R. 447-51).

There are vigorous arguments made that the testimony

of Karen Brooks was unbelievable and unreliable; that

the evidence showed only purchases of drugs for the use

of appellants themselves, as Watson testified; and, of

course, that the recordings were unintelligible and inad-

missible. We have already rejected the latter contentions

about the tapes and transcripts. With regard to the former

contentions, evaluating the credibility of witnesses is a

matter for the jury and not an appellate court. United

States v. Twilligear, supra, 460 F.2d at 82. Essentially the

question is whether there was sufficient circumstantial

evidence, along with the direct testimony of Karen Brooks,

tO support the conspiracy convictions. Conspiracy may be

proved by circumstantial evidence. See Glasser v. United

States, 315 U.S. 60, 80; United States v. Gamble, 541

F.2d 873, 877 (10th Cir.). Viewing the evidence in the light

most favorable to the government, we are satisfied that

the existence of the conspiracy, and the knowing and

— 13a —

intentional joining in it by the appellants, was sufficiently

demonstrated by the evidence to sustain the jury’s verdicts.

United States v. Twilligear, supra, 460 F.2d at 81-82.

Ill

As discussed earlier, all appellants strenuously argue

that the government’s evidence was insufficient to estab-

lish that any of them became members of the conspiracy

as charged in the indictment. They also say that even if the

proof was adequate to link each or any of them to con-

spiratorial conduct, which they all deny, there was never-

theless a variance between the single conspiracy charged

and the several discrete conspiracies which may have been

proven by the evidence. They contend that the evidence

was woefully inadequate to link the appellants to the over-

all scheme involving defendants Thompson, Brooks,

Anderson and Carlett Jones. (Brief for the Appellants,

58-59). Furthermore, the existence of this variance re-

quires reversal because of the severe prejudice created by

the spill-over effect attendant on defendants’ trial under

a single conspiracy charge. Error is also claimed because

of refusal to give appellant Brown’s requested instruction

on the existence of separate conspiracies.

Appellants rely, inter alia, on Kotteakos v. United

States, 328 U.S. 750; United States v. Bertolotti, 529 F.2d

149 (2d Cir.); and United States v. Sperling, 506 F.2d

1323 (2d Cir.). Special emphasis is placed on the Bertolotti

opinion which reversed convictions wnere the court found

that the proof showed at least four separate conspiracies

instead of the one overall conspiracy charged, where the

types of conspiracies concerned various ‘‘rip-offs’’ and

crimes which ‘‘scarcely resembled one another,’’ United

States v. Bertolotti, supra, 529 F.2d at 157, and where

inflammatory discussions about kidnappings, guns and

narcotics were all brought before the jury. We must agree

that where such prejudice and separate, identifiable con-

— 14a —

spiracies are involved a reversal is required, see United

States v. Butler, 494 F.2d 1246, 1255-57; but we feel that

is not the case here.

We have discussed the evidence in detail earlier. It

suffices to note here that it demonstrated that Anderson

supplied drugs from California to Thompson, the Tulsa

wholesaler, who distributed them to various street dealers,

including these three appellants. From evidence of the

volume and nature of their operations, an inference may

be drawn of awareness by appellants of the scope of the

narcotics conspiracy.

Where large quantities of narcotics are being dis-

tributed, each major buyer may be presumed to know that

he is part of a wide-ranging venture, the success of which

depends on performance by others whose identity he may

not even know. United States v. Heath, 580 F.2d 1011,

1022 (10th Cir.). We are satisfied that the evidence here

shows a common design to acquire and distribute heroin

and cocaine, id. at 1022, and that it was permissible to

link the appellants with Thompson and Anderson. Whether

the evidence was sufficient to establish the single conspiracy

charge '' was a question for the jury. Id. at 1022; United

States v. Ricco, 549 F.2d 264, 268 (2d Cir.), cert. denied,

431 U.S. 905. The trial court thoroughly and properly

instructed the jury on the government’s burden of prov-

ing the conspiracy charged beyond a reasonable doubt.

‘'The conspiracy charged by count one of the indictment was an un-

lawful conspiracy to knowingly and intentionally possess with intent

to distribute and to distribute heroin and cocaine, and to knowingly

and intentionally use telephones in committing, causing and facilita-

ting the commission of possession with intent to distribute, and the

distribution of controlled substances. The indictment outlined the

method used by the conspiracy including procurement by Thompson

of heroin and cocaine from Anderson, and dilution and repackaging

in smaller quantities by Thompson for resale to others. The allegations

of overt acts included in the indictment described thc involvement

of appellants as sellers whose source was Thompson.

— 15a —

We are satisfied that the record as a whole supports the

jury’s verdicts of guilt of the conspiracy charged.

As noted, appellant Brown makes the related argu-

ment that the trial court committed prejudicial error in

not giving her requested instruction on multiple con-

spiracies. We do not agree. We feel that the instructions

as a whole adequately covered the question since the trial

court clearly charged that the government had the burden

of proving beyond a reasonable doubt the conspiracy as

alleged, and that the evidence should be considered

separately as to each individual defendant. (V R. 819-23,

832). In these circumstances we feel that it was not error to

refuse the requested instruction concerning multiple con-

spiracies. See United States v. Russo, 527 F.2d 1051, 1059

(10th Cir.), cert. denied, 426 U.S. 906; United States v.

Lam Lek Chong, 544 F.2d 58, 67-68 (2d Cir.), cert. denied

sub nom. Leganoza v. United States, 429 U.S. 1101;

United States v. Hobson, 519 F.2d 765, 775 (9th Cir.),

cert. denied, 423 U.S. 931; United States v. Salerno, 485

F.2d 260, 263 (3d Cir.), cert. denied, 415 U.S. 994. Thus

we are convinced there was no error in refusing the re-

quested instruction.

The appellants argue that the indictment was insuffi-

cient in its allegations of conspiracy. First we will consider

the contention that the trial court erred in denying appel-

lant Brown’s motion to dismiss the indictment for failure

to state facts essential to constitute a conspiracy under 21

U.S.C. §846. More specifically, appellant Brown says that

she is not identified within the portion of the indictment

describing the objects of the conspiracy, that clearly the

main figures of the conspiracy were Thompson, Anderson

and Brooks, and that the only allegations involving her

appear in the listing of overt acts (paragraphs 11, 12 and

49), which contains no statement that she purchased, sold

or distributed narcotics or that she assisted Thompson,

— 16a —

Anderson, Brooks or Carlett Jones in the performance

of functions necessary to the continuation or success of

the scheme. (Brief for the Appellants, 17-21).

Count | of the indictment alleges a conspiracy from

on or about January | until on or about February 22,

1977, within the Northern District of Oklahoma, and else-

where, charging that the 15 named defendants, all specified

and including ‘‘MAE LILLIAN BROWN, a/k/a ‘Chi

Chi’,’’ did knowingly, willfully and unlawfully combine

and conspire to knowingly and intentionally possess with

intent to distribute and to distribute heroin and cocaine,

controlled substances, and to knowingly and intentionally

use a telephone in committing, causing commission of

and facilitating the commission of possession with intent

to distribute and distribution of narcotic drugs.

Further the indictment alleges that the objects of the

conspiracy were to be accomplished, inter alia, by Thomp-

son making arrangements to procure heroin and cocaine

from Anderson, and then diluting the drugs, repackaging

them in smaller quantities, and selling them ‘‘to various

other co-conspirators,’” who would dilute and/or repack-

age the drugs still further and sell them to other customers.

The allegations of the overt acts included references to

defendant Brown as follows:

11. On or about February 11, 1977, at about 11:01

a.m., defendant MAE LILLIAN BROWN, also

known as ‘‘CHI CHI,”’ had a telephone conversation

with unindicted co-conspirator Charles Etta Saulters,

in Tulsa, Oklahoma, which, in substance, concerned

the trading of a coat for narcotics.

12. On or about February 11, 1977, at about 11:04

a.m., defendant ALFRED RAY JENNINGS had a

telephone conversation with defendant JOHN

HUBERT THOMPSON, in Tulsa, Oklahoma, which,

in substance, concerned the arrangements for delivery

—17a—

by THOMPSON of a quantity of cocaine to ALFRED

RAY JENNINGS and THOMPSON’s prior delivery

of cocaine to defendant MAE LILLIAN BROWN

also known as ‘‘CHI CHI.”’

49. On or about February 14, 1977, at about 01:13

a.m., and at about 2:44 a.m., defendant MAE LIL-

LIAN BROWN, also known as ‘‘CHI CHI,”’ had a

telephone conversation with defendant JOHN

HUBERT THOMPSON, in Tulsa, Oklahoma, which,

in substance, concerned the arrangements for defend-

ant MAE LILLIAN BROWN to come by defendant

THOMPSON’s house and take delivery of a quantity

of cocaine.

We are satisfied that the conspiracy allegations of the

indictment were sufficient as to appellant Brown. A

charge of conspiracy is sufficient if it follows the statutory

language and contains an adequate statement of an overt

act to effectuate the object of the conspiracy, and the

requisite Overt act need not be criminal in itself. United

States v. Sterkel, 430 F.2d 1262, 1263 (10th Cir.). The alle-

gations must be adequate to inform the defendant of the

nature of the charge and to serve, together with the record

and judgment of conviction, as sufficient protection

against possible double jeopardy. Id. at 1263-64. The

indictment in the instant case satisfied these requirements,

charging the named defendants with conspiring for the

particular unlawful purposes alleged. Moreover in the

later allegations of overt acts, appellant Brown was clearly

alleged to have discussed the trading of narcotics, to have

received delivery of cocaine, and to have discussed by tele-

phone arrangements for taking delivery of cocaine. Such

allegations in the overt acts may be considered in judging

sufficiency of the conspiracy indictment. See United States

v. Strauss, 283 F.2d 155, 159 (Sth Cir.)."?

'*We have considered the Strauss case, which is relied on by appel-

(continued next page)

— 18a —

With respect to the conspiracy charge, we feel that the

indictment met the fundamental requirements discussed

above, and the constitutional requirement to inform the

defendant of the nature and cause of the accusation

against her. It also complied with the pleading requirement

of a plain, concise and definite written statement of the

essential facts constituting the conspiracy offense charged.

See United States v. DePugh, 452 F.2d 915, 920; Rule 7(c),

F.R.Crim.P. Thus, appellant Brown’s challenge to the

sufficiency of the conspiracy charge must fail.

The appellants all strenuously argue that the proof

was insufficient to sustain their convictions of the sub-

stantive offense of violation of 21 U.S.C. §843(b),'? using

the telephone to facilitate the commission of possessing

with intent to distribute and distributing controlled sub-

stances. They say that the substantive counts. (counts IX,

X and XV relating respectively to defendants Maxwell,

Brown, but it is clearly distinguishable. The allegations of combi-

nation, conspiracy, etc., there were all directed toward a scheme to

defraud creditors, a violation of 18 U.S.C. §152 prohibiting the

concealment of assets of a corporation. The additional citation of the

mail fraud statute in the indictment was the only actual reference to

matter relating to mail fraud, and thus that part of the indictment was

held insufficient. That case is wholly unlike the instant indictment,

outlined above.

"Section 843(b) reads as follows:

Communication facility

(b) It shall be unlav.ful for any person knowingly or intentionally

to use any communication facility in committing or in causing or

facilitating the commission of any act or acts constituting a felony

under any provision of this subchapter or subchapter II of this chapter.

Each separate use of a communication facility shall be a separate

offense under this subsection. For purposes of this subsection, the

term ‘‘communication facility’ means any and all public and private

instrumentalities used or useful in the transmission or writing, signs,

signals, pictures, or sounds of all kinds and includes mail, telephone,

wire, radio, and all other means of communication.

— 19a —

Watson and Brown) charged use of the telephone in com-

mitting, causing the comission of, and facilitating knowing

and intentional possession with intent to distribute and

distribution of controlled substances, and that there was

no proof of any delivery of the substances after the calls.

Since the actual offense charged, which included distribu-

tion, was not proven, appellants contend there was insuf-

ficient proof of violation of §843(b), as was held by United

States v. Leslie, 411 F.Supp. 215 (D.Del.); cf. United

States v. Rodriguez, 546 F.2d 302, 307-09 (9th Cir.).

There are variations in the facts with respect to each

of these three appellants, and the proof was stronger

against defendants Watson and Maxwell than it was

against defendant Brown.'‘ Nevertheless, we are persuaded

‘Count X of the indictment alleges that Watson and J.T. ‘‘discussed

in substance, delivery arrangements for a sale of heroin and cocaine”’

in a phone conversation occurring at about 9:39 p.m., on February 12,

1977. (I R. 27). The tape of this call from Watson to J.T. was played

at trial. The voices on the tape were identified, (IV R. 510-12), and

testimony was taken concerning a subsequent meeting between Watson

and J.T. (IV R. 516-31). The record shows that shortly thereafter

Watson was arrested in the company of Mark Allen Hart, who was

found in possession of heroin. (IV R. 546-54). Appellant Watson con-

tends that this testimony is deficient as to him because he was not

found in possession of any durgs. Furthermore, he claims the tele-

phone call related only to cocaine, and Hart was found in possession

of heroin. Yet, the jury could have found that the call related to both

drugs and that after the pickup from Watson, see generally United

States v. Baldarrama, 556 F.2d 560, 565 (Sth Cir.), he had personally

used the cocaine. The evidence is therefore sufficient to show not only

that Watson used the telephone to facilitate J.T.’s possession with

intent to distribute but also to facilitate his own distribution.

Count IX of the indictment alleges that Maxwell and J.T. ‘‘dis-

cussed, in substance, the sale of cocaine to Maxwell’’ in a phone con-

versation occurring about 9:38 p.m., on February 12, 1977. (1 R. 26).

The tape of the call was played at trial, and the voices on the tape were

identified. (111 R. 398-400). Maxwell clearly states that some people

are visiting and ‘‘They wanted one of those quarter things of girl.”

(continued next page)

— 20a —

that the substantive convictions of all these appellants

should be upheld on the basis of the position presented

by the government to the trial court, and as accepted and

spelled out in the discussion of the issue by the trial judge

when he overruled the defendants’ motions for acquittal.

(VR. 690-701).

The theory of the trial judge was essentially that,

viewing the evidence favorably to the government,

Thompson was a distributor, that he was committing the

felony of possession with intent to distribute the controlled

substances, that under the modus operandi of Thompson

the telephone was used to facilitate. distribution, and that

when defendants used the telephone and contacted

(Quarter ounce of cocaine). J.T. tells Maxwell that he may come get

the quarter ounce. (I R. 204). In light of Karen Brook’s testimony that

J.T. periodically possessed large amounts of heroin and cocaine and

that J.T. had her install a phone at his residence in her name (III R.

267, 287, 305), evidence such as that presented here against appellani

Maxwell that use was made of that phone line for a drug related con-

versation amply supports Maxwell’s conviction under §843(b) for

facilitating J.T.’s possession with intent to distribute.

Count XV of the indictment alleges that Brawn and J.T. ‘‘dis-

cussed, in substance, the sale of cocaine to Brown,’’ in a phone con-

versation occuring about 1:13 a.m., on February 14, 1977. (I R. 28).

The tape of the call was played at trial, and the voices on the tape were

identified. (IV R. 443-46). In the conversation Brown identifies herself

and inquires whether she may ‘‘come by and pick up some of those

dresses’’ (cocaine). (I R. 229). This call followed a call of eight hours

earlier concerning a pick-up for ‘‘number one dresses,’’ (I R. 228) and

it preceded a call a mere hour and a half later in which Brown asked

J.T. whether she could come by ‘‘again’’ for ‘‘one of those 50’s till in

the morning.’’ (1 R. 230). She also said that in the morning, ‘‘tomor-

row,’’ she would come get ‘‘that quarter.’’ In view of the evidence

that Brown made several calls during this. period of time; that Thomp-

son held significant quantities of drugs; that he had had a telephone

installed; and that Brown used that line in this specific instance for a

drug related conversation, we sustain Brown’s conviction under

§843(b) for facilitating Thompson’s possession with intert to

distribute.

—2la—

Thompson, they thus facilitated his unlawful possession

with intent to distribute.

We agree, for the telephone, as this record shows,

was indeed used to facilitate distribution and to reap the

profits which fed the operation. Viewing the evidence

favorably to the government, there was proof that the

appellants, as street dealers, were using the telephone to

obtain heroin or cocaine for resale. Their calls come

within the common meaning of facilitate — ‘‘to make

easier,’” Webster’s New Collegiate Dictionary, p. 410

(1975) — by making easier the commission of the offense

of possessing the substances with intent to distribute. The

facilitation of that offense of possession is enough. Al-

though the indictment did also allege conjunctively that

the calls aided the distribution of the substances as well

as possession with intent to distribute, it was sufficient

for the government to prove that either the possession or

distribution offenses were facilitated. See Turner v. United

States, 396 U.S. 398, 420.

United States v. Leslie, 411 F.Supp. 215 (D.Del.),

dismissed a case brought under §843(b) where there was

a charge of use of the telephone to facilitate distribution

of methamphetamine. It was stipulated that the‘in-

formant in the United States receiving the defendant’s

calls from Canada had no such substance and that no

methamphetamine came into the United States as a result

of the calls. The court held that in view of the legislative

history and wording of the statute, proof of a mere

attempt or conspiracy to commit such a violation was not

enough without proof of actual distribution.

We are inclined to agree with the Third Circuit’s

rejection of the statutory interpretation in Leslie. See

United States v. Pierorazio, 578 F.2d 48, 51 (3d Cir.),

cert. pending. In addition, our case is different from

Leslie because here there was evidence of actual possession

— 22a —

with intent to distribute and of circumstances from which

it could be inferred that the defendants’ calls facilitated

that unlawful possession.

For these reasons we uphold the cowvictions of the

appellants for substantive offenses under §843(b).'°

VI

Lastly, appellants claim prejudicial error in the ad-

mission over objeetions by them, of evidence relating to a

seizure of narcotics and other items at the home of cocon-

spirator Anderson in Fresno, California.

Appellants point to the conclusion of the government’s

case by the introduction of evidence concerning a search

of Anderson’s home in Fresno and the seizure of a large

quantity of heroin and cocaine, forty-nine pounds of lac-

tose, one hundred bricks of mannite-and various narcotics

paraphernalia including scales, sifters, strainers and

spoons. In addition, $16,000 in cash was discovered in

a bedroom drawer and another $10,013 between the

mattresses.

Objections were made of irrelevancy under Rule 402

and of unfair prejudice outweighing probative value,

under Rule 403, F.R.E. Appellants say there was no proof

connecting any of them to a conspiracy to import narcotics

from California or with Anderson, and that'the powerful

effect of the evidence on the jury was prejudicial. The argu-

ment is renewed that in any event no more than multiple

conspiracies were shown, with proof as to any conspiracy

'SA similar argument is made that since distribution was an essential

element for conviction of appellant Brown under §843(b), the indict-

ment was defective in making that charge. She says that the indictment

did not allege that she actually took delivery of cocaine and did not

imply or suggest that she intended to or did distribute cocaine. For the

reasons stated above we must disagree and hold that the substantive

charge against defendant Brown in count XV was sufficient as pleaded.

— 23a —

to import narcotics from California being a prejudicial

variance from the conspiracy charged.

We dealt with the single-multiple conspiracy issue

earlier and concluded that the proof of a conspiracy em-

bracing importation from California was sufficient to go

to the jury. We agree that the trial court’s ruling that the

evidence concerning the items seized zi Anderson’s Cali-

fornia home was relevant to show the existence and scope

of the conspiracy. It was conceded by the government that

the raid occurred on February 21, 1977 — over a week after

the overt acts of February 12 and 14, (1. R. 602-03), which

are alleged against these appellants. However, there was

evidence that Thompson sent Anderson a suitcase contain-

ing $14,000 on February 12. The challenged evidence was

therefore relevant to establish Anderson’s possession of a

large amount of cash, drugs and narcotics paraphernalia

within a reasonable time after the appellants’ activities, as

well as to corroborate tiie government’s testimony on the

functioning of the conspiracy.

We cannot agree that the trial judge erred in his ruling

that the potential for prejudice did not call for exclusion

of the evidence. Rule 403 provides that, although relevant,

evidence may be excluded if its probative value is substan-

tially outweighed, inter alia, by the danger of unfair preju-

dice, confusion of the issues, or misleading the jury. This

determination is within the sound discretion of the trial

judge, United States v. Krohn, supra, 573 F.2d at 1389,

and we find no abuse of that discretion in this case.

We have considered the remaining arguments of ap-

pellants and find them to ve without merit and to call for

no further discussion. We conclude that no reversible error

is demonstrated and accordingly the judgements are

AFFIRMED.

— 24a —

Nos. 77-1575, 77-1576, 77-1577 — UNITED STATES OF

AMERICA, Plaintiff-Appellee, vs. EARL WATSON,

TONY MAXWELL and MAE LILLIAN BROWN,

Defendants-Appellants.

McKAY, dissenting:

One does not have to have any sympathy for drug

dealers to express a deep concern about the erosion of

fundamental doctrines of-liberty when that erosion occurs

in cases dealing with drug dealers. This case represents one P

more example of the continuing erosion of the concept

that ‘‘[g]uilt with us remains individual and personal, even

as respects conspiracies. It is not a matter of mass appli-

cation.’” Kotteakos v. United States, 328 U.S. 750, 772

(1946). While I have expressed elsewhere in greater detail

my concern about the growing tentacles of conspiracy doc-

trines, United States v. Heath, 580 F.2d 1011 (10th Cir.

1978) (McKay, J., dissenting), the Court’s analysis in this

case compels me to reiterate my apprehensions.

In this case all that the evidence shows is that one

Thompson was a major drug dealer in Tulsa, Oklahoma,

and that these defendants obtained their supplies (appar-

ently for resale) from him. If we take seriously our stated

standard that criminal cases must be proved beyond a rea-

sonable doubt, I do not believe that this record supports a

finding that these customers of one dealer were connected

together in a common conspiracy. What is missing is the

‘*rim of the wheel to enclose the spokes’’ of a conspiracy.

See Kotteakes v. United States, 328 U.S. at 755. Even

more alarming is the absence of any evidence under either

a civil or criminal standard of proof which would show

that these defendants were knowingly involved by agree-

ment with James Anderson — Thompson’s California

supplier. The agreement in this case makes that leap by

further enshrining in the criminal law what is essentially

— 25a —

the ‘‘affecting commerce”’ rationale of Wickard v. Filburn,

317 U.S. 111 (1942).'

It is obvious why some prosecutors, with our aid and

comfort, are enamored of bringing allegations of mass

conspiracy. No matter how thin the proof as to individual

defendants, once the jury has looked at the sheer numbers

involved and has been shocked by the extensive evidence

of criminal activity by a remote actor? the chance that they

will pay serious attention to the absence of substantial

proof as to one individual is not particularly great. A doc-

trine which permits this impairs liberty.

To avoid the obvious prejudice attending a mass trial,

we ought to return to the principles enunciated in Kottea-

kos and United States v. Butler, 494 F.2d 1246 (10th Cir.

1974). Although it may represent some inconvenience to

the government, my position here would not prevent the

government from legitimately prosecuting those who were

in fact guilty? In any event, mere inconvenience to the gov-

ernment has never been an adequate justification for the

erosion of principles governing fair trial. See Kotteakes v.

United States, 328 U.S. at 773.

I would reverse.

‘Although not totally without hyperbole, 1 made this observation

earlier in United State v. Heath, 580 F.2d at 1032 (McKay, J., dissent-

ing). Its repetition seems justified here in view of the majority’s insis-

tence that the large amount of narcotics distributed gives rise to a

presumption of knowing participation in a ‘‘wide-ranging venture.”’ It

is difficult to imagine how such an analysis can be effectively limited in

its scope. The expansiveness of this rationale threatens to render

meaningless the very word it seeks to define — ‘‘conspiracy.”’

*When one examines the evidence against Anderson set forth on page

27 of the majority opinion, it is clear why the prosecutors wished to

have these small fry tried with him even though no evidence at all linked

them together in a conspiracy.

‘As in Kotteakos, there was in this case substantial evidence of indi-

vidual conspiracies between each of these defendants and their sup-

plier, Thompson. There was also evidence of conspiracy between

Thompson and Anderson.

— 26a —

APPENDIX ‘‘B”’

21] U.S.C. §846: ‘‘Any person who attempts or conspires

to commit any offense defined in this subchapter is punish-

able by imprisonment or fine or both which may not exceed

the maximum punishment prescribed for the offense, ihe

commission of which was the object or the attempt of the

conspiracy.”’

21 U.S.C. §841(a)(1): ‘Except as authorized by this sub-

chapter, it shall be unlawful for any person knowingly or

intentionally —

(1) To manufacture, distribute or dispense, or possess

with intent to manufacture, distribute, ¢ or penealces acon- .

trolled substance.’

21 U.S.C. §843(b): ‘‘It shall be unlawful for any person

knowingly or intentionally to use any communication facil-

ity in committing or in causing or facilitating the comission

of any act or acts constituting a felony under any provision

of this subchapter or subchapter II].of this chapter. Such

separate use of a communication facility shall be a separate

offense under this subsection. For purposes of this subsec-

tion, the term ‘communication facility’ means any and all

public and private instruments used or useful in the trans-

mission of writing, signs, signals, pictures, or sounds of all

kinds and includes mail, telephone, wire, and all other

means of communication.”’

— 27a—

APPENDIX "C"

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— 28a —

APPENDIX ‘‘D”’

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JANUARY TERM — FEBRUARY 15, 1979

Before The Honorable William J. Holloway, Circuit Judge

The Honorable Monroe G. McKay, Circuit Judge

The Honorable Arthur J. Stanley, Jr., District Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

MAE LILLIAN BROWN,

a/k/a CHI CHI,

Defendant-Appellant.

JUDGMENT

77-1577

(D.C. No. 77 CR 42)

This cause came on to be heard on the record on

appeal from the United States District Court for the North-

ern Djstrict of Oklahoma and was argued by counsel.

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed. McKay, Circuit Judge,

dissents. It is the further order of this court that Mae Lil-

lian Brown, appellant, shall, within ten (10) days from and

after the date of the filing of the mandate of this court in

the district court, surrender himself to the custody of the

United States Marshal for the Northern District of Okla-

homa in execution of the judgment and sentence imposed

upon him.

The District Court may, in its discretion, permit the

appellant to surrender directly to the designated Bureau of

Prisons institution for service of sentence.

/S/ HOWARD K. PHILLIPS, Clerk

— 29a —

APPENDIX ‘‘D’”’

MARCH TERM — APRIL 27, 1979

Before The Honorable Oliver Seth,

The Honorable William J. Holloway, Jr.,

The Honorable Robert H. McWilliams,

The Honorable James E. Barrett,

The Honorable William E. Doyle,

The Honorable Monroe G. McKay, and

The Honorable James K. Logan, Circuit Judges

The Honorable Arthur J. Stanley, Jr., Senior District Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VS.

EARL WATSON, TONY LEE MAXWELL,

MAE LILLIAN BROWN, a/k/a CHI CHI,

Defendant-Appellant.

Nos. 77-1575, 77-1576, 77-1577

This matter comes on for consideration of appellants’

petition for rehearing and suggestion for rehearing in banc

in the captioned cause.

Upon consideration whereof, the petition for rehear-

ing is denied by Circuit Judges Holloway McKay, and

Senior District Judge Stanley, to whom the case was argued

and submitted.

The petition for rehearing having been denied by the

panel to whom the case was argued and submitted, and no

member of the panel nor judge in regular active service on

the Court having requested that the Court be polled on re-

hearing in banc, Rule 35, Federal Rules of Appellate Pro-

cedure, the suggestion for rehearing in banc is denied.

/S/ HOWARD K. PHILLIPS, Clerk

By: Robert L. Hoecker

Chief Deputy Clerk

— 30a —

APPENDIX ‘‘D”’

MARCH TERM — MAY I, 1979

Before The Honorable Oliver Seth, Chief Circuit

Judge, Honorable William J. Holloway, Jr., Honorable

Robert H. McWilliams, Honorable James E. Barrett,

Honorable William E. Doyle, Honorable Monroe G. Mc-

Kay, Honorable James K. Logan, Circuit Judges, and The

Honorable Arthur J. Stanley, Senior District Court Judge.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VS.

EARL WATSON, TONY LEE MAXWELL,

MAE LILLIAN BROWN, a/k/a Chi Chi,

Defendants-Appellants.

Nos. 77-1575, 77-1576, 77-1577

The court, upon its own motion and in order to cor-

rect a clerical error, vacates its order of April 27, 1979, in

~ the captioned cases and in lieu thereof enters the following

corrected order:

Upon consideration of Appellants’ petition for rehear-

ing and suggestion for rehearing in banc, the petition is

denied by Circuit Judge Holloway, and Senior District

Judge Stanley, to whom the cases were argued and sub-

mitted. Circuit Judge McKay, also on the hearing panel

and who dissented in the opinion filed February 15, 1979,

voted to grant rehearing.

The court having been polled on the suggestion for

rehearing in banc, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing is denied by Chief

Judge Seth and Circuit Judges Holloway, McWilliams,

Barrett, Doyle, and Logan. Circuit Judge McKay voted to

grant rehearing in banc.

‘S/ HOWARD K. PHILLIPS, Clerk

By: Robert L. Hoecker

Chief Deputy Clerk