# Petition — Brown v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0334%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 840 ## Text ; 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 rea BGs . Wah s ¢.6 oo.ets sas ceeen's 2 aaron ss Sia gk bis a's 6 wees 0'0'b'0's os 2 es as ya'eGi 6 4 6 450% Ae 0 2 Statutory Provisions Involved ...................... 2 epee WG OO is ence noes PAR See aks ae « 3 RE Er yn 3 Nn ek ke kk kp dnc bteb wea cease 5 SET ee ne 8 8 ne a 8 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 Do ews ewceuve 15 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 — -A 2? Cuun fet (A WE OtrT COUnEL Oleoweree the erat acer A the te veatign | of eyed tes cememiet god osbeg ehettors dh fomtent Grune ty teowe creme epgrernted beg thee comet geet th fe tect ont Mere @ ea deter © af Cfwuet sf Sywecounst too Lk Tork Wold gusull. Cowk Appointed . . . -/) ame (idee ©! Cownert) Co GUE DY, art the comet beer, cote ed that LU UNO OCONTEROERE, I Ngai “. PULA nuee aladsthunie trelie - ' = Ec [5 ‘ -—- +o f Mestes FGs; Lu. J ROT GUILTY Peter Lent 0 divcharped JUN 24 1977 There being 4 Hace /verdat of L Nua Gury ee i RU Detendttest oocunwith das cboped of the offeowidef bavind violated aul i! Else d Bigal TINCUNE BR : Section £46 and RéN(bD), as Cherued an Counts |} and "ast of ‘ehh sUUCNENT Trdictuernt Jt os the findang of the Court that the defendant as the age of 23 years, subject to the Youth Correei:ton Aet, and jt aes the furthea finding of the Court that the defendant would not derive op propriate benefit from the Youth Correcttion Act, and is therefore sentenced — ae FJ onder the applicable statutes bi I The court @ bid emer ttes @ len@ant hy von wee nod stort hyeer catheters Pica ttle CO tee te the Comte Oe ee ee pate he aoe ele OD Ue lee Temt gp eteg ee eh ee Dan lene the dowt tree The @ fondest hh Be rey cert ete te thee cemtads ef the Attorney Go pee hen get ered pt eta fet me ooomrot tl epemud of Count 1 = Four (4) Yeurs, with a enecial parole (ers of Fave (5) st nrener Years, to conmence at the expiration of the sentence imposed herein. its 4 on Count 16 = Thace (3) Years, to run concurrently wath the sentence froranoy imposed in Count 1. onure sricias Couns or PHOLATION AVOTTIONAL aT s fee e heter fee Phe pe al eeennedete een oof Gre te etectee dea ad at ewe ot at io” tues “ pat sgh Vics ots ser Nang in vA Spl eae ] oe ’ Qevestee ‘ ! -' o reoeation or oe eae ee ee ae re Sie > der ceant eadvene ernnentener et tao thee eeontondy « the Athumy ta Cornered ee | DAVION a 3 BEG Dae da te Lseoks , mark «94-97 105 — 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0334%3A1. Public record. Not legal advice.