Petition — Viserto v. United States

| Supreme Court, U. &,

FILED

JUN 18 1979

Soo JR., CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No. 78-1877

FRANK VISERTO, JR., RICHARD Rocco and JOSEPH SOLCE,

Petitioners,

.

| UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MicHAEL E. TIGAR

JOHN MAGE

JOHN J. PRIVITERA

Suite 201

1302 18th Street, N.W.

Washington, D.C. 20036

Counsel for Petitioners.

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

=>"

TABLE OF CONTENTS

Page

EEL IF ERT GE EO OY GE 2

ee es Joba dew Whee cwewnaaews 2

es ns eae b abe se choncnenes 2

SEINE GW TS COG oo wc cect cn cccctccncececes 3

The Giving of a Supplemental Instruction On

ek iis ented sie eee ¥sncecees 8

The Court’s Charge and Counts 2 and3......... 10

Reasons ror GRANTING THE WRIT ...............5-: 10

I. “Other Crimes’”’ and “Other Bad Acts”

ais iec died ved beaes osese 10

II. Supplemental Charge ...................05. 15

eee eyes ethics bcos seccee'es 17

es ep ach dbeeeecoesstees 21

tee eee eek Gk ek issih eccsecesves la

TABLE OF AUTHORITIES

CAsEs :

Andres v. United States, 333 U.S. 740 (1948) ........ 20

Bradley v. United States, 433 F.2d 1113 (D.C. Cir.

ee eee Cewdisterecedpecess 12

Bollenbach v. United States, 326 U.S. 607 (1946) .... 17

Delano v. Kitch, 542 F.2d 550 (10th Cir. 1976) ...... 15

Herring v. New York, 422 U.S. 853 (1975) .......... 17

Powell v. United States, 347 F.2d 156 (9th Cir. 1965) 17

Russell v. United States, 369 U.S. 749 (1962) ........ 18

Sanabria v. United States, 437 U.S. 54 (1978) ...... 20

State v. Little, 87 Ariz. 295, 350 P. 756 (1969) ........ 14

United States v. Adcock, 558 F.2d 397 (8th Cir.), cert.

Ss GE MU, ME CRDUED viccccccsccscccccess 13

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978),

cert. denied, | eT) | ere

United States v. Benedetto, 571 F.2d 1246 (2nd Cir.),

cert. denied, fa) Pere 11, 12

United States v. Bohr, 581 F.2d 1294 (8th Cir.), cert.

denied, Pee Giles MUU abs vc dic cd scesene

United States v. Broadway, 477 F.2d 991 (5th Cir.

ee eee hic abeachewe sees scaes 12

(ii)

Page

United States v. Corey, 566 F.2d 429 (2d Cir. 1977) .. ll

United States v. Clemons, 503 F.2d 486 (8th Cir.

SPE a bekcbs dkokachabehbandines nhassehenes ses 12, 13

United States v. Curry, 512 F.2d 1299 (4th Cir.), cert.

denied, 423 U.S. 832 (1975) .......ccccccccccees

United States v. DiRe, 332 U.S. 581 (1947) .......... 16

United States v. Gubelman, 571 F.2d 1252, cert. denied,

GE i Oe CRMTED hse scccnccetescecsecccceccte 11

United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977),

cert. denied, 435 U.S. 1000 (1978) .............. 12

United States v. Jackson, 526 U.S. 1236 (5th Cir. 1976) 19

United States v. Jones, 570 F.2d 765 (8th Cir. 1978) .. 138

a v. Kearney, 444 F. Supp. 1290 (S.D.N-Y. a

DUE: neko nsddo Ske ensbihsesescesediceseces sees

United States v. Long, 574 F.2d 761 (3d Cir.), cert.

denied, DP wes CE nb ne nbs caneebednne 12

eae States v. Louie Gim Hall, 245 F.2d 338 (2d Cir. -

| ECE Eee reer er Terry PTE ETT OT eT Tee

United States v. O’Connor, 580 F.2d 38 (2d Cir. 1978) 12

United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977),

cert. denied, 434 U.S. 1080 (1978) .............. 19

United States v. Orzechowski, 547 F.2d 978 (7th Cir.

1976), cert. denied, 431 U.S. 906 (1977) ........ 19

United States v. Robinson, 560 F.2d 507 (2d Cir. 1977)

(en banc), cert. denied, 435 U.S. 905 (1978) ...... 11

United States v. Sutherland, 428 F.2d 1152 (5th Cir.

1970), cert. denied, 409 U.S. 1078 (1972) ........ 17

United States v. Warledo, 557 F.2d 721 (10th Cir. 1977) 14

United States v. Williams, 577 F.2d 188 (2d Cir. 1978) 12

Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962) .... 17

RuLes AND STATUTES:

California Evidence Code §1101(b) ................ 13

Federal Rule of Criminal Procedure 7(c)(1) ........ 20

Federal Rule of Criminal Procedure 8 ............ 2, 20

Federal Rule of Criminal Procedure 30 .......... 2, 15

Federal Rule of Civil Procedure 51 ................ 15

Federal Rule of Evidence 403 .................. 2, 15

Federal Rule of Evidence 404(b) .............. passim

Model Code of Evidence Rule 311 ................-- 13

Rg AE er rer Perr etre 2, 18

eI 6 £665 Sha NSEs Cada sVeewedaiasdncunses 19

ee ee eee a

(iii)

21 U.S.C. § 84 oo

y .0, l(a) (1 onc eceeseceseasssd cbs

21 U.S.C. 846 acne ae Pe Ee vee : seantters '

b 8. 2 enetae

UI ee ae a a ae

tions § 12.05 (3d ed. 1977) ....... ccc cece cc ccse 16

Devitt & Blackmar, Federal Jury Practice and Instruc-

7 — § Ppa i 9

evi ackmar, Federal Jury Practice & Instruc-

tions §§ 58.01-58.03, 58.09-58.11 (3d ed. 1977) .... 19

A. P. Herbert, Uncommon Law 28 (1935) ............ il

Holmes, Collected Legal Papers 37 (1920) .......... 16

2 Weinstein, Evidence 7404[08] .................... 12

ln eit, ae et aa

IN THE

Supreme Court of the Anited States

OcToBER TERM, 1978

No.

FRANK VISERTO, JR., RICHARD Rocco and JOSEPH SOLCE,

Petttioners,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Petitioners Frank Viserto, Jr., Richard Rocco and

Joseph Solee pray that a writ of certiorari issue tc

review the judgment of the United States Court or

Appeals for the Second Circuit dated March 21, 1979,

which affirmed judgments of conviction of the United

States District Court for the Eastern District of New

York sentencing Petitioners to concurrent terms of

imprisonment of fifteen years, with an additional

special parole term of fifteen years on each count of a

2

three-count indictment charging them with conspiring

to possess with intent to distribute and to distribute

heroin, 21 U.S.C. § 846 (Count 1), and with possession

with intent to distribute and distribution of heroin,

21 U.S.C. § 841(a) (1); 18 U.S.C. §2 (Counts 2 and

3). Each Petitioner was also fined $25,000 on each

count, for a cumulative total of $75,000. Petitioners

are incarcerated under these sentences.

OPINIONS BELOW

The opinion of the court of appeals, not yet re-

ported, is reprinted in the Appendix.

JURISDICTION

The decision of the court of appeals was rendered

on March 21, 1979. A timely petition for rehearing and

suggestion of the appropriateness of a rehearing en

banc was denied on May 18, 1979.

This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether the court of appeals properly con-

strued and applied Federal Rules of Evidence 404(b)

and 403 in upholding admissibility of “other crimes”

and “other bad acts” evidence irrelevant to issues tried

by the jury.

2. Whether the court of appeals properly inter-

preted Federal Rule of Criminal Procedure 30 in up-

holding the giving of a supplemental instruction favor-

able to the government after the jury had deliberated

at some length, which instruction was not requested

Aa. maid

t atniailariad ease in "

3

by the jury and introduced a theory of liability that

counsel had not had the opportunity to argue.

3. Whether an indictment charging possession

with intent to distribute and distribution of a controlled

substance is duplicitious in violation of Federal Rule of

Criminal Procedure 8 and the sixth amendment.

STATEMENT OF THE CASE

This case involved an alleged conspiracy to distrib-

ute between 75 and 100 kilograms of heroin between

1970 and 1975. The seriousness of the crimes for which

Petitioners were convicted, and the public attitude—

shared no doubt by members of the jury—towards the

distribution of this substance highlight the importance

of a reasoned approach to questions of evidence and

fair procedure. This Court has never addressed the

intent and meaning of Federal Rule of Evidence 404

( b), and this case presents an opportunity to provide

guidance to the courts of appeals, whose opinions are in

disarray.

Despite the allegations that large quantities of

heroin were involved, neither Viserto, Rocco nor Solce

Was ever apprehended in possession of nareoties. In-

deed, no nareoties were introduced in evidence in this

case. There was testimony that narcotics were seized

from some defendants, but these persons were never

claimed by the government to have met Viserto, Rocco

or Solce. The only narcotics containers ever tested for

fingerprints were negative as to all three. The govern-

ment’s case rested, therefore, upon testimony of de-

fendant Charles Ford, who agreed to cooperate with the

government the night of his arrest, and one Norman

Alexander, a convicted felon who bargained with the

government to exchange testimony for leniency.

4

Ford testified that, beginning in 1970 and continu-

ing into 1975, he purchased quantities of heroin from

Viserto, who was sometimes accompanied by Rocco,

Solee or both of them. He said that the heroin was

distributed through defendant Garnet Johnson, one

Jeffrey Jones, and (though not throughout the five-year

period) Norman Alexander. Down the ladder of

packaging and distribution were, according to Ford,

the other defendants.

Alexander testified that he first saw Viserto, Rocco

and Solee in 1972 when he began driving to make

heroin pickups. Alexander admitted that he did not

know the last name of the person identified at trial as

Viserto, and that he first mentioned Viserto to federal

authorities at the time he was negotiating his arrange-

ment. Impeachment material reflected that Alexander

might at one time have inaccurately described Viserto

as dark and smooth-skinned. Alexander’s prior de-

scriptions of the man he identified as Solce also left

something to be desired.

In an attempt to corroborate Ford and Alexander,

the government offered evidence of other crimes and

“bad acts,” and testimony tending to establish that

Viserto, Rocco and Solce knew some of their alleged

co-conspirators. None of the three Petitioners sug-

gested that they did not know Ford, and cross-exam-

ination focused upon Ford’s and Viserto’s mutual

fondness for gambling. The government’s efforts to

prove that Viserto, Rocco and Solee were “bad men”

who might very well have committed serious crimes

fell into several familiar categories:

1. Owners of a gas station in Long Island City

testified that Viserto, Rocco and Solce patronized their

Coe weber mang

5

business, and that Viserto introduced Charles Ford to

them as “a friend”. Ford thereafter became a customer

and in turn introduced some of the other defendants

as customers. Alexander visited the. gas station and at

one time saw Solce there. This evidence was not dis-

puted. Ford owned a used ear lot at one time, and the

gas station did repairs on cars owned by that business.

One of the station owners, Mapp, testified that Rocco

and Solce came by in about 1975 looking for Ford,

claiming he owed them money. Assistant United States

Attorney Scotti pointedly asked gas station owner

Mapp if Rocco or Solce had displayed a gun to him

during their search for Ford in 1975, and received an

unequivocal “no”.’ Mapp also said that Ford had him-

self conceded in 1975 that Rocco loaned him money.

There was evidence that Viserto and Ford did gamble,

apparently for high stakes.

2. Witnesses testified that Solee and Viserto had

large quantities of cash during 1970 and 1971. Most of

the cash, several tens of thousands of dollars, was shown

to have been in Solce’s possession. Viserto was shown to

have been involved in several thousand dollars worth

of cash purchases. The introduction of this evidence

was vigorously contested by the trial counsel, who con-

tended that it went to no disputed issue of fact, in that

Petitioners impliedly conceded access to cash through

their gambling activities. Moreover, some of the

witnesses called on this point had already testified at

Solce’s net worth tax evasion trial in the Eastern

District of New York. Solce was acquitted in that case,

which charged two counts under 26 U.S.C. § 7201 for

his 1970 and 1971 tax returns. United States v. Joseph

' The trial judge properly admonished the jury, but th

had been done. ne

6

P. Solce, 77 CR 225. Solce had, at the earlier trial,

admitted receipt of unreported income in about the

amounts claimed by the government but thought that

because the income was from gambling winnings that

it was not reportable. In yet another tax case, in the

Southern District, United States v. Musoff, Viserto,

Solce and Rocco, T7 CR 895, Petitioners were acquitted

of conspiring to evade taxes they owed for 1975, and

attempting to evade taxes for the same year. The trial

judge, having let in the evidence of cash, would not

permit the prior acquittals to be proven.

3. Ford testified that Viserto gave him guns. Now,

Viserto had been acquitted on a firearms charge in Flor-

ida, United States v. Chierco, Amatto and Viserto, No.

77-18-Orl-Cr-R, Middle District of Florida, Orlando

Division, and had pending at the time a state gun

charge in New Jersey to which he has since pleaded

guilty and received a sentence of three to five years

concurrent with his sentence in this case. But Ford’s

testimony was the only link between Viserto and guns

in this case; the prejudicial impact of this bit of

evidence was enhanced when the government sought to

link other defendants to specific acts of violence. This

testimony was in turn heightened by evidence that

some other defendants had engaged in violence to col-

lect from their customers, including Alexander’s

picturesque description of using a machete for enforce-

ment work. None of the jury evidence that weapons

were actually used related to Viserto, Rocco or Solce.

4. The indictment was returned September 27,

1977. On October 6, 1977, DEA Agent Roger Garay

left a party at the Holiday Inn in Manhattan at about

11:00 P.M. and drove to a newsstand at 53rd Street

and Second Avenue. Garay had been to this newsstand

7

before, and went there on this occasion to “look

around”. He spotted Solce, Rocco, Viserto, and some

others near an Italian restaurant. Viserto was walking

with a man Garay said he later identified as Paul Cai-

ano, and Garay overheard Caiano say, “We can’t lose

him as a customer, we have to make it up to him,” to

which Viserto replied, “All right, don’t worry.” Garay

testified that he climbed into his car, huddled on the floor

and that by the most fortuitous of coincidence Rocco

came and sat on the fender of his car and had the

following conversation with Viserto : “Frankie, we have

had this guy as a customer for five years. It’s always

been $25,000 a key. What is wrong?” Viserto assertedly

responded: “I will meet you back here at nine.” Garay

then asked for assistance with the surveillance, but his

testimony did not reveal that anything further hap-

pened that evening which seemed worthy of mention-

ing. Cross-examination revealed that Garay was instru-

mental in enlisting Alexander as a government witness,

and in turning Ford, whom he had arrested on this

indictment. Trial counsel vigorously protested admis-

sion of Garay’s testimony, noting that the alleged event

post-dated the indictment by days and the alleged con-

spiracy by years. Moreover, Garay’s reports of the

incident, though they contained the alleged words of

Rocco and Viserto, were withheld from the defense

until after trial began despite earlier requests for all

such material.

5. Another bit of alleged corroboration, also prop-

erly objected to, appeared in the person of Thomas

Murray, a veteran of the witness protection program

who had been receiving $600 per month for his help in

another case. Murray testified that he met Viserto at

the Corner Lounge Bar in New Rochelle in 1971.

When confronted with the fact stipulated by the gov-

ernment, that the bar had gone out of business in 1969,

Murray decided he had met Viserto in 1968, and then

had seen him again in 1971. Murray testified that, in

the company of his partner in the narcotics business

Joseph Barone, he bought heroin from Viserto in 1971

and in 1973 in a Bronx bar where Viserto’s father

worked. Viserto, according to Murray, went and got

the packages of heroin and handed them over right in

the bar. The defense, faced with this testimony, was

required to confront it, though to do so compounded the

jury’s confusion. Barone, called as a defense witness

and testifying for the first time in any court proceed-

ing (he had pleaded guilty on a previous oceasion and

served his sentence), testified that he had never met

Frank Viserto, Jr. He admitted meeting Frank Viserto,

Sr., but said he never got any packages from him.

The Giving Of A Supplemental

Instruction On Possession.

On the third day of deliberations, the jury re-

quested by note to the court a reading of the charge on

Count 2 and “the law on circumstantial evidence in

regard to the verdict.” * The prosecutor then requested

the court charge on constructive, as well as actual,

possession. The trial judge had not, in his pre-delibera-

tion charge, instructed on constructive possession. The

government’s request was apparently without any prior

notice to counsel, and ex parte. Counsel for defendant

Solee protested that the jury had only asked for “the

charge on Count 2”. The trial judge responded, incor-

2*“We want to hear your charge on this count. We would like to

hear the law on circumstantial evidence in regard to the verdict

so all jurors have this clear in their minds.’’

—_———-_

9

rectly, that the jury had “asked for the law on Count

2”. Following upon that misapprehension, and the

prosecutor’s request, the trial judge decided to ask the

jury whether they wanted a definition of terms and

whether they wanted a definition of the term possession.

No text of the proposed supplemental instruction

on possession had been provided—orally or in writing—

to the attorneys for the defendants Viserto, Rocco and

Solce. An objection to a supplemental charge was made

on behalf of Mr. Solce before it was given, the court

apparently treating the objection as if made by counsel

for all three Petitioners. Counsel requested that if the

government's desired charge on possession were to be

given, that the term “reasonable doubt” be defined as

well. The trial judge refused to define “reasonable

doubt” and, after further request, declined to ask the

jury if they wanted that term defined. The trial judge

then informed the jurors that they wanted a definition

of the terms that he had used. He asked the jurors if

they wanted a definition of possession. Two of them

answered the query, one saying yes and the other say-

ing “no, sir”. The jury was thereafter charged as to

the definition of “possession,” the charge reproducing

that to be found in Federal Jury Practice & Instruc-

tions, Devitt and Blackmar § 16.07. (3d ed. 1977) The

Court did not charge on the definition of reasonable

doubt nor upon the government’s burden of proof.

The charge as given contained no instruction that mere

presence in the vicinity of the contraband would not

support the finding of possession.°

3 Counsel had argued in summation that the defendants Rocco,

Solee and Viserto were professional gamblers and money lenders

and had met repeatedly with government witness Ford (a self-

[footnote continued ]

10

After the supplemental charge, counsel for the

three affected defendants again objected. They speci-

fied that they had not been given an opportunity to

object to Che charge (which they had neither seen nor

heard before it was actually delivered), and that they

were entitled to be aware that such a charge would be

given before closing argument. Counsel for Mr. Solce

specifically pointed out that the supplemental charge

had not been requested by the jury, and that the judge

had lent “the weight of authority” to his suggestion

that the term be defined.

The Court’s Charge And Counts 2 And 3.

Counts 2 and 3 each charge distribution and pos-

session with intent to distribute. The court, at two

points in its jury instructions, so characterized the

charges. Then, in explaining the elements of the offense,

the court focused only on possession with intent to dis-

tribute. When objection was taken to this instruction,

the court stated that it had a problem with the con-

junctive form of Counts 2 and 3, conceded that the

charge was “awkward,” and declined to change it.

REASONS FOR GRANTING THE WRIT

L “Other Crimes” And “Other Bad Acts” Evidence.

No rule of evidence has been a more fecund source

of appellate litigation than Rule 404(b):

(b) Other crimes, wrongs, or acts. Evidence of

other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show

admitted heroin dealer) in connection with gambling and asso-

ciated activity. The trial judge had informed the jury in his

charge that this was the position of the three defendants. Neither

definition of ‘‘possession’’ nor a caveat about “‘mere presence’”’

was delivered in the original charge.

11

that he act-d in conformity therewith. It may,

however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake

or accident.

Some of the courts of appeals have read Rule

404(b) so broadly as to invite trial courts and juries

to say, echoing A.P. Herbert’s fictitious Lord Chief

Justice:

“Tt is not for me to say what offence the appellant

— Ae pcre but I re satisfied that he a com-

i some offence, for which he h

ana eunishoa” e has been most

A.P. Herbert, Uncommon Law 28 (1935).

For these reasons, the Rule requires int -

tion by this Court. : —

Rule 404(b), correctly viewed, must be read in

connection with Federal Rule of Evidence 403. That

is, the trial judge must first determine whether Rule

404(b) bars admissibility, then « xercise discretion in

light of Rule 403. See, e.g., United States v. Benedetto,

571 F.2d 1246, 1251 (2d Cir.), cert. denied, US.

— (1978): United States v. Gubelman, 571 F.2d

1252, 1256 (2d Cir.), cert. denied, 436 U.S. 948 (1978) ;

United States v. Robinson, 560 F.2d 507 (24 Cir. 1977)

(en banc), cert. denied, 435 U.S. 905 (1978); United

States v. Corey, 566 F.2d 429, 431 (2d Cir. 1977).

Emphasizing as it does the wise use of discretion,

Rule 403 is perhaps not subject to a definitive “inter-

pretation”. The same cannot be said of Rule 404(b).

One is at a loss, therefore, to explain the disarray in

which the courts of appeals find themselves. The Sec-

ond Cirenit, echoed by the Third, e.g., United States v.

12

Long, 574 F.2d 761, 766 (3d Cir.), cert. dented, —__—

U.S. _— (1978), and Ninth, e.g., United States v.

Hearst, 563 F.2d 1331, 1336 n.3 (9th Cir. 1977), cert.

denied, 435 U.S. 1000 (1978), Circuits, has stressed its

commitment to the “inclusory,” United States v. Wil-

liams, 577 F.2d 188, 192 (2d Cir. 1978), or “inclusion-

ary,” United States v. Benedetto, supra, 571 F.2d at

1248; United States v. O’Connor, 580 F.2d 38 (2d Cir.

1978), form of the other crimes doctrine encapsulated

in Rule 404(b), claiming support from Judge Wein-

stein’s treatise in so doing. 2 Weinstein, Evidence

1404[08], at 404-41.

The Fifth Circuit formerly took a less expansive

view, United States v. Broadway, 477 F.2d 991 (5th

Cir. 1973), but in a recent en banc decision has ex-

panded the reach of Rule 404(b) almost beyond recog-

nition. United States v. Beechum, 582 F.2d 898 (5th

Cir. 1978), cert. denied, ___ U.S. —_ (1979).

Judge Weinstein may be correct that Rule 404(b)

encapsulates some prior federal practice (2 I d. at pp.

404-41) but he is wrong in implying that the prior prac-

tice was consistent among the circuits. The cases cited

above reveal the differences among the courts of ap-

peals, and one might add that the District of Columbia

Circuit has apparently decided not to decide, see Brad-

ley v. United States, 433 F.2d 1113, 1118 n.18 (D.C. Cir.

1969). Compare Drew v. United States, 331 F.2d 85

(D.C. Cir. 1964). The Eighth Circuit has two contra-

dictory lines of “other crimes” authority, with virtually

no cross-citation between them. A “test” was established

in United States v. Clemons, 503 F.2d 486, 489 (8th

Cir. 1974), echoing the earlier law of the Fifth Circuit.

Compare, e.g., United States v. Weir, 575 F.2d 668

(8th Cir. 1978) (reversing a conviction where threats

ae ee ee

13

to assassinate an informant were admitted; Clemons

not cited), and United States v. Jones, 570 F.2d 765

(8th Cir. 1978) (reversing the conviction of a physi-

cian for distribution of narcotics by prescription when

other similar narcotic prescriptions were admitted;

Clemons cited), with, e.g., United States v. Bohr, 581

F.2d 1294 (8th Cir.), cert. denied, US.

(1978) (affirming conviction for wire fraud where

similar criminal act was relevant to identity under Rule

404(b); Clemons cited), and United States v. Adcock,

9598 F.2d 397 (8th Cir.), cert. denied, 434 U.S. 921

(1977) (affirming Hobbs Act conviction where similar

criminal acts established “intent ;” Clemons not cited).

It cannot be said that Rule 404(b) adopts the

broadest available formulation of the “other crimes”

rule. Compare, e.g., Model Code of Evidence Rule 311,

as quoted by McCormick, Evidence § 157 at 327 n.2:

... evidence that a person committed a crime or

civil wrong on a specified occasion is inadmissible

as tending to prove that he committed a crime or

civil wrong on another occasion if, but only if, the

evidence is relevant solely as tending to prove his

disposition to commit such a crime or civil wrong

or to commit crimes or civil wrongs generally.

Rule 404(b), by contrast, is closer to the Uniform

Rules, and the California Evidence Code § 1101(b).

This case provides some opportunity to resolve the

conflicts and to address an issue which has become of

great importance in the proper administration of erim-

inal justice. This record is replete with “other crimes”

questions of the sort which have caused the courts of

appeals so much difficulty.

The evidence of guns, by allusion and by direct

reference, was upheld by the court below on a rationale

14

at variance with that adopted by the Tenth Circuit, in

United States v.Warledo, 557 F.2d 721 (10th Cir. 1977).

The evidence of cash, viewed in light of Solce’s

prior acquittal of a tax charge in which the same wit-

nesses testified prompts consideration of an issue al-

ready addressed by the highest court of the state.

Weinstein’s treatise quotes these words from State v.

Little, 87 Ariz. 295, 350 P. 756 (1969) :

The fact of an acquittal, we feel, when added to

the tendency of such evidence to prove the de-

fendant’s bad character and criminal propensities,

lowers the seale to the side of inadmissibility of

such evidence. The factors which lead us to this

balancing may, perhaps, not be subject to precise

articulation, but we note two points . . . the rele-

vance of the evidence of the prior offense depends

upon the court’s or jury’s drawing two separate

inferences, thus lessening the probative weight of

such evidence; where the significance of such evi-

dence must, if the doctrine of res judicata or col-

lateral estoppel is to be given any effect, be deter-

mined in the light of the record and verdict of the

former trial, the evidence of such former offense

tends to become remote, speculative or confusing.

See 2 Weinstein, Evidence 9404[09] at 404-47-48.

The evidence.of the conversation in the vicinity of

an Italian restaurant is redolent of the sort of “bad

character” prejudice which has ever been of concern in

interpreting the “other crimes” rule.

In sum, there has arisen a clear and present danger

that federal criminal trials, now already lengthened by

liberal rules for joinder of offenses and defendants, will

become even more burdened by a runaway interpreta-

tion of Rule 404(b) contrary to its intent and language.

Wigmore, ever the champion of letting all the evidence

15

in for the jury to hear, still cautioned against “con-

fusion,” the danger that:

In attempting to dispute or explain away the evi-

dence thus offered, new issues will arise as to the

occurrence of the instance and the similarity of

conditions, new witnesses will be needed whose

cross-examination and impeachment may lead to

further issues; and that thus the trial will be un-

duly prolonged, and the multiplicity of minor

issues will be such that the jury will lose sight of

the main issue, and the whole evidence will be

only a mass of confused data from which it will be

difficult to extract the kernel of controversy.

2. Wigmore, Evidence § 443 at 428 (3d ed. 1940).

This case provides an opportunity to chart a path

for the federal courts to follow.

Il. Supplemental Charge

For the trial judge to give a supplemental instruc-

tion well into the jury’s deliberations, introducing a

wholly new theory of criminal liability on the issue of

possession, raises questions under this Court’s decisions

concerning the constitutional right to summation, and

under Federal Rule of Criminal Procedure 30.‘

A great object of the criminal rules has been to

promote uniformity, yet in counsel’s experience the

admonition of Rule 30 that the court rule on requests

to charge prior to argument is subject to widely vary-

ing interpretations in the federal district courts. From

4 Wederal Rule of Criminal Procedure 30 is virtually identical to

Federal Rule of Civil Procedure 51, and the question here presented

has arisen in civil cases. See, e.g., Delano v. Kitch, 542 F.2d 550

(10th Cir. 1976), for a particularly cogent statement of the

problem.

16

counsel’s point of view, the better practice is to give

counsel a copy of the entire charge before argument, so

that summation may weave together facts and law in

coherent fashion.® Other courts simply rule on requests

to charge one by one, leaving counsel unaware of what

the actual instructions will be.

At a minimum, counsel must know the theory on

which the jury may permissibly impose eriminal lia-

bility. In this case, the charge as originally given would

not, fairly read, have permitted the jury to find Peti-

tioners guilty on a theory of constructive possession.

The supplemental charge emphasized that theory

which counsel had not had an opportunity to argue.

The problem was compounded because the trial court

refused to balance the supplemental instruction with a

“mere presence” admonition of the kind set forth, e.g.,

in 1 Devitt & Blackmar, Federal Jury Practice & In-

structions § 12.05 (3d ed. 1977), and based in part upon

this Court’s decision in United States v. DiRe, 332 U.S.

581, 593 (1948).

In construing Rule 30, the due process clause and

the sixth amendment right to summation, the following

cuidelines are, we submit, appropriate: (a) the charge

must be given, in writing, to counsel prior to summa-

tion; (b) no new theories of liability may be intro-

duced by supplemental instructions unless reargument

is permitted on such issues; (¢) any supplemental

charge must be balanced, and include at a minimum a

5 Justice Holmes has written:

“The mark of a master is, that facts which before lay scattered

in an inorganie mass, when he shoots through them the mag-

netie current of his thought, leap into an organic order, and

live and bear fruit.’’

Ilolmes, Collected Legal Papers 37 (1920).

= "

17

restatement of the government’s burden of proof. These

principles, though they ostensibly involve only the in-

terpretation of a rule of criminal procedure, trace deep

roots in the right to a fair trial, and are worthy of con-

sideration by this Court.

After all, the sixth amendment right to assistance

of counsel includes the right to closing argument, “the

last clear chance to persuade the trier of fact that there

may be reasonable doubt of the defendant’s guilt.”

Herring v. New York, 422 U.S. 853, 862 (1975). The

content of that right has been described by the Mary-

land Court of Appeals in Yopps v. State, 228 Md. 204,

178 A.2d 879 (1962) in words quoted with approval in

Herring, supra, at 860:

The Constitutional right of a defendant to be

heard through counsel necessarily includes his

right to have his counsel make a proper argument

on the evidence and the applicable law in his favor

... and the trial court has no di ;

accused such right. o discretion to deny the

Id. at 207, 178 A.2d at 881.

“Particularly in a criminal trial, the judge’s last

word is apt to be the decisive word.” Bollenbach v.

United States, 326 U.S. 607, 612 (1946). “Special care

must be exercised in framing supplemental instruc-

tions if prejudice to the defendant is to be avoided.”

Powell v. United States, 347 F.2d 156, 158 n.3 (9th Cir.

1965) ; United States v. Louie Gim Hall, 245 F.2

(2d Cir, 1957). , 2d 338

The Fifth Cireuit has also spoken to this issue in

Uae States v. Sutherland, 428 F.2d 1152, 1157-58

(5th Cir. 1970), cert. denied, 409 U.S. 1078 (1972).

18

I. Duplicity

Counts 2 and 3 of the indictment charge substan-

tive violations of 21 U.S.C. § 841(a) (1) for the period

January-June 1973 and August-September 1973. The

charging part of each count alleges that Petitioners:

«|. did knowingly and intentionally distribute and

possess with intent to distribute . . . heroin. .. .”

At trial, the government’s proof was intended to

show that Viserto, Rocco and Solce occupied important

positions in a widespread narcotics operation involving

substantial quantities of heroin. Evidence that any of

the three actually possessed heroin was sharply con-

tested, presenting at the very least a real jury question

on this issue.

It is also important to note that Counts 2 and 3

refer to 18 U.S.C. § 2, inviting the jury to convict any

Petitioner it found to have aided and abetted either

distribution or possession with intent to distribute.

Each of Counts 2 and 3 is, therefore, capable of at least

eight different readings, and neither the trial judge’s

charge nor the jury’s general verdict gives any guid-

ance as to which one the jury adopted or, importantly,

as to whether some jurors voted on one theory and

some on another.

To be sure, Federal Rule of Criminal Procedure

7(c)(1) permits pleading that the defendants com-

mitted the offense by “one or more specified means”.

Federal Rule of Criminal Procedure 8(a) requires that

separate offenses be set forth in separate counts.

The decision whether a conjunctive allegation of

possession and distribution violates the federal rules

and sixth amendment apprisal requirement, see gen-

erally Russell v. United States, 369 U.S. 749 (1962),

19

rests upon an interpretation of the underlying statute

in light of the facts of a particular case. The offenses

of distribution and possession with intent to distribute

may involve very different conduct. See, for example,

United States v. Jackson, 526 U.S. 1236 (5th Cir.

1976),° on the other hand, a single incommutable act

such as handling a quantity of narcoties to a govern-

ment agent may involve violation of the prohibitions on

possession with intent and on distribution. See, e.g.,

United States v. Orzechowski, 547 F.2d 978 (7th Cir.

1976), cert. denied, 431 U.S. 906 (1977); compare

United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977),

cert. denied, 434 U.S. 1080 (1978). See also United

States v. Curry, 512 F.2d 1299 (4th Cir.), cert. denied,

423 U.S. 832 (1975).

The general problem of duplicity has not been

directly addressed by this Court in recent years, and

proper interpretation of 21 U.S.C. § 841(a) (1) requires

consideration as well, so that prosecutors and trial

courts may know the proper unit of accountability

under the statute.

There is no danger of improvident acquittals

through mistaken pleadings if the offense of distribu-

*2 Devitt & Blackmar, Federal Jury Practice & Instructions,

§§ 58.01-58.03, 58.09-58.11 (38d ed. 1977) is relevant here, for the

authors take great care to list separately the elements of distribution

and possession with intent in different sections. Other than in the

‘*hand-to-hand’’ situation, these two offenses are quite distinct as

to proof. This is particularly so because ‘‘ possession’’ has, with the

advent of § 841(a)(1), lost its former status as the basis for a

number of the ‘‘presumptions’’ which were an integral part of

the former 21 U.S.C. § 741. If the government should allege the

offenses in separate counts, it would either be compelled to elect;

or, at a minimum, sentences could not be imposed for both when

the possession was part of a distribution enterprise.

20

tion and of possession with intent to distribute should

be regarded as separate, rather than as different means

of committing the same offense. The prosecutor could

plead the offenses in separate counts and the jury be

instructed that it could return a verdict of guilty only

on one of the counts with respect to a particular trans-

action. See Sanabria v. United States, 437 U.S. 54

(1978).

The lower federal courts have addressed the issue

of duplicity in a number of contexts although their

opinions do not speak with a single voice. The ablest

recent summary of the law, citing all the relevant cases,

is United States v. Kearney, 444 F. Supp. 1290

(S.D.N.Y. 1978).

On this record, the question is presented not only

as a matter of statutory interpretation, but in the con-

text of facts which point up the difficulty inherent in

the mode of pleading adopted here, and highlighted by

the trial court’s failure to give the jury any guidance.’

In sum, this case presents an opportunity to inter-

pret the oft-used provisions of 21 U.S.C. § 841(a) (1),

to restate the important problems of apprisal for jury

unanimity ® in this context, and to harmonize the pro-

visions of Federal Rules of Criminal Procedure 8(a)

and 7(¢) (1).

7 The trial judge conceded that his charge was ‘‘awkward,’’ and

the record reflects that he failed to tell the jury that it had to be

unanimous on some single theory of liability.

8 Andres v. United States, 333 U.S. 740, 748-49 (1948).

21

CONCLUSION

For all of the above reasons, it is respectfully

prayed that the writ for certiorari be granted.

Respectfully submitted,

MiIcHAEL E. TiGcar

JOHN MAGE

JOHN J. PRIVITERA

Suite 201

1302 18th Street, N.W.

Washington, D.C. 20036

Counsel for Petitioners.

Dated: June 18, 1979

APPENDIX

la

UNITED STATES COURT OF APPEALS

For tHE Seconp Circurr

—.

Nos. 476-482—August Term, 1978.

(Argued December 18, 1978 Decided March 21, 1979.)

Docket Nos. 78-1281-3; 78-1305-8

-

Unirep States or AMERICA,

Appellee,

—against—

Frank Viserto, Jr., Ricuarp Rocco, Josepx Soice, GARNET

Jounson, Sanam Payne, Howarp WiiuiaMs and Prentiss

CovineTon,

Defendants-A ppellants.

—

Before:

Fernserc, Muuuican and Gurrern,

Circuit Judges.

-

Appeal from judgments of conviction by the United

States District Court for the Eastern District of New

York (Honorable Jacob Mishler, Chief Judge) after a jury

trial for violations of 21 U.S.C. §4 841(a)(1), 846 and 18

U.S.C. § 2 in connection with a narcoties distribution enter-

prise. The Court of Appeals held that all points of error

lacked merit, specifically those concerning admission of

allegedly prejudicial evidence, the alleged insufficiency of

pre-trial discovery, the allegedly duplicitous nature of the

indictment, the court’s supplemental charge on constructive

2a

possession, and a challenge to the procedure for the selec-

tion of alternate jurors.

All convictions affirmed.

a

Micuae. FE. Ticar, Washington, D.C., for Appel-

lants Viserto, Rocco and Solce.

Jutes Sack, Brooklyn, N.Y., for Appellant

Payne.

LawRENCE HocuuHeiser, New York, N.Y. (Donald

E. Nawi, New York, N.Y., of counsel), for

Appellant Covington.

Gary R. Sunpen, New York, N.Y., for Appeilant

Williams.

Ricwarp I. Rosenxranz, Brooklyn, N.Y., for Ap-

pellant Johnson.

Gavin W. Scotti, Assistant United States At-

torney, Eastern District of New York

(Edward R. Korman, United States Attor-

ney, and Mary McGowan Davis, Assistant

United States Attorney, Eastern District of

New York, of counsel), for Appellee.

——

Gurrein, Circuit Judge:

The several appellants in this multi-defendant case ap-

peal from judgments of conviction (Hon. Jacob Mishler,

Chief Judge) entered after a jury trial for violations of the

federal narcotics laws. After full consideration of the

numerous arguments raised on appeal, we find them all to

be without merit. Accordingly, we affirm.

The trial below involved ten defendants, seven of whom

have appealed.’ Count One charged all the defendants with

conspiracy to distribute and to possess with intent to dis-

tribute heroin in violation of 21 U.S.C. 4846 between

January 1970 and September 1975. Counts Two and Three

charged appellants Viserto, Rocco and Solce with distribu-

tion and possession with intent to distribute heroin in viola-

tion of 21 U.S.C. §841(a)(1) and 18 U.S.C. $2. Count

Two charged possession of approximately 25 kilograms of

heroin from January to June 1973; and Count Three al-

leged possession of approximately 50 kilograms of heroin

from August to September 1973. Although none of the

appellants directly challenges the sufficiency of the evi-

dence, we shall summarize briefly the facts proved at trial.

The Government’s case relied primarily on the testimony

of two alleged co-conspirators, Charles Ford and Norman

Alexander. The evidence, viewing it most favorably to the

Government, showed the following. Ford testified that he

met appellants Viserto and Rocco (and later Solce) in early

1970, and that he agreed to begin street distribution of

heroin supplied to him by Viserto. Ford’s operation proved

successful. By September 1970 Ford had paid Viserto over

$57,000 for heroin and was purchasing from him at a rate

of 1% kilogram every 14% months at a price of $10,000 per

half-kilogram. During 1971 Ford’s distribution network

1 The three defendants who are not parties to this appeal are Mary

Keith, James Shell, and James Brodies. Chief Judge Mishler granted

Keith’s motion to dismiss Count One against her after the Govern.

ment rested its case. Shell was acquitted, and the jury declared itself

deadlocked as to Brodies. A mistrial was declared and the indictment

was dismissed as to Brodies upon the Government’s motion on July

21, 1978. Two other defendants, Charles Ford and Benny Thomas,

entered guilty pleas prior to trial. The appellants are Frank Viserto,

Jr., Richard Rocco, Joseph Solce, Garnet Johnson, Sarah Payne,

Howard Williams, and Prentiss Covington.

fda

continued to grow, so that by 1972 he was purchasing be-

tween three and eight kilograms at a time from Viserto.

Ford estimated that he paid Viserto approximately $1 mil-

lion for the heroin he purchased during 1972.

The business continued through June 1973, at which time

Ford testified that he attempted to bring his dealings with

Viserto to an end. He was persuaded to continue, how-

ever, and in August or September 1973, after several meet-

ings with Viserto and one with Rocco and Solce, Ford

agreed to purchase 50 kilograms of heroin in a single ship-

ment, at a cost of $25,000 per kilogram. This heroin was

sold by Ford’s distribution ring in Brooklyn, the Bronx,

Manhattan, and Queens, New York. The heroin was ap-

parently of poor quality, and for this or other reasons

Ford fell behind in his payments to his principals. This

occasioned a number of meetings with Viserto and Rocco

in April or May 1975 at which Ford requested that he be

given more heroin to sell in order to pay off his debt. At

one meeting, Rocco informed Ford that he and Viserto had

ways of collecting their money. Ford testified that by mid-

1975 he had paid Viserto approximately $800,000 on the 50

kilogram shipment. He still owed approximately $250,000

when he ceased dealing with Viserto, Rocco, and Solce and

left the New York area. Ford testified that, at one point,

his lieutenants had asked him for guns. When he relayed

that request to Viserto, Viserto supplied him with ten

handguns, which Ford distributed to his confederates.

Norman Alexander testified that, after some occasional

work during 1970 for two of Ford’s lieutenants, Jeffrey

Jones and Garnet Johnson, the promise of financial gain

convinced him to work at selling heroin full-time. Alex-

ander detailed the method of operations utilized by the

drug ring and recounted dealings with Jones and Johnson,

5a

another lieutenant named Parks, and appellants Covington,

Williams and Payne.’? He testified that after April 1971,

when Jones and Johnson were indicted for possession of

heroin in the Supreme Court of Kings County, New York,

he and Williams were promoted to fill their places as Ford’s

chief lieutenants. In that capacity Alexander often re-

ceived instructions from Viserto, Rocco, or Solce regarding

deliveries of heroin, and on several occasions he accom-

panied Ford to meetings with suppliers at which quantities

of heroin were transferred.

The Government also introduced evidence to corroborate

the testimony of Alexander and Ford. The admissibility of

some of this evidence is challenged on appeal. (1) Against

Viserto, Rocco, and Solce, the Government introduced evi-

dence of substantial purchases for cash which they made

in 1970-71. (2) Thomas Murray, an admitted drug dealer,

was permitted to testify to two heroin transactions in which

Viserto participated, and which occurred at about the same

time as the alleged conspiracy. In addition, Police Officer

Roger Garay of the New York Drug Enforcement Task

Force testified to a conversation he overheard on October

6, 1977; between Viserto and Rocco, in which Rocco report-

edly referred to a “customer” who had been purchasing for

the last five years at a rate of “$25,000 a key” and who was,

apparently, in trouble. (3) Finally, the Government intro-

duced certified copies of the conviction of Jones and John-

son in New York Supreme Court as evidence that they pos-

2 Johnson and Williams were implicated as partners or lieutenants

of Ford who performed major roles in the conspiracy. Covington and

Payne were more minor figures. Covington was at first a customer,

then an occasional seller of small quantities of heroin received on

consignment from Alexander, and finally a sub-lieutenant who worked

for Johnson. Payne assisted the conspiracy by permitting storage of

heroin shipments in her apartment.

6a

sessed heroin during the period covered by the conspiracy

indictment in Count One.

I

Evidence of Cash Transactions

The admission of evidence that Viserto, Rocco, and Solce

- made substantial purchases for cash in 1970-71 was proper.

The Government urged the inference that the use of cash

showed that the defendants were engaged in an illegal busi-

ness—the narcotics conspiracy—while the appellants con-

tended that the cash came from the proceeds of a different

illegal venture—gambling. We have held that proof of the

availability of cash by defendants with no legitimate occu-

pation is permitted as tending to show that it was derived

from ill-gotten gains. United States v. Tramunti, 513 F.2d

1087, 1105 (2d Cir.), cert. denied, 423 U.S. 860 (1975);

United States v. Falley, 489 F.2d 33, 38 (2d Cir. 1973);

United States v. Hinton, 543 F.2d 1002, 1012-13 (2d Cir.),

cert. denied, 429 U.S. 980, 1051, 1066 and 430 U.S. 982

(1976).

Proof of cash expenditures is not proof of “other crimes’

as appellants suggest. It is relevant to the crime on trial.

The suggestion that the cash may have come from another

illicit activity goes only to the weight, not the admissibility,

of the evidence. United States v. Tramunti, supra. The

relevance is not so farfetched as to make its admission an

abuse of discretion by the experienced trial judge. Chief

Judge Mishler charged as follows:

There is testimony that the defendants Viserto,

Rocco and Solce had large amounts of cash. You may

infer from the existence of large amounts of cash that

the large amounts of cash were proceeds or the results

7a

of illegal activities. The Government argues that the

existence of large amounts of cash in this case shows

that the defendants Viserto, Rocco and Solce were

dealing in narcotics.

The defendants’ position is that these large amounts

of cash represent proceeds from gambling activities

and the money lending business.

Since there was no affirmative evidence that the cash

was derived from legitimate business, there was sufficient

relevance to the crime charged for the consideration of

the jury.

Appellants contend that the acquittal of Solce for in-

come-tax evasion, in the prosecution of which the same

cash expenditures were in evidence, amounts to a collateral

estoppel against the Government. In this case the prosecu-

tion was not bound by the outcome of the earlier prosecu-

tion, because the earlier acquittal of the income tax viola-

tion did not “necessarily” determine that the cash used was

not derived from the narcotics business. United States v.

King, 563 F.2d 559, 561 (2d Cir. 1977), cert. dented, 435

U.S. 918 (1978); United States v. Cala, 521 F.2d 605, 608

(2d Cir. 1975).

Appellants contend further that, since Solee had previ-

ously been acquitted of income-tax evasion, allegedly on the

theory that the cash expenditures were from gambling ac-

tivity which Solce believed to be non-taxable, the court

should have admitted in evidence the verdict of acquittal.

A judgment of acquittal is relevant to the legal question of

whether the prosecution is barred by the constitutional doc-

trine of double jeopardy or of collateral estoppel. But once

it is determined that these pleas in bar have been rejected,

a judgment of acquittal is not usually admissible to rebut

inferences that may be drawn from the evidence that was

admitted. Not only does the inference appellants suggest

not flow from the judgment of acquittal of Solce, but also

a judgment of acquittal is hearsay. The Federal Rules of

Evidence except from the operation of the hearsay rule

only judgments of conviction, Rule 803(22), not judgments

of acquittal.

The further suggestion that the evidence compelled the

defendants to urge that they were gamblers and that this

therefore created a classic case of “confusion and waste

of time,” is not well-taken. The matter was well within

the discretionary management of the trial judge.

The Guns

The trial judge admitted testimony by Ford that when

his lieutenants asked him to provide them with guns, he

got handguns from Viserto which he distributed to his

confederates. This was not error. We have recognized

that handguns are tools of the narcotic trade, and that

possible prejudice does not outweigh the relevance. The

evidence was significant, if Ford was believed, in linking

Viserto to the conspiracy and showing its scope. See United

States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied,

429 U.S. 820 (1976) ; United States v. Grant, 545 F.2d 1309,

1312-13 (2d Cir. 1976), cert. denied, 429 U.S. 1103 (1977) ;

cf. United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir.),

cert. denied, 400 U.S. 834 (1970). The judge gave a limiting

instruction as well, reminding the jury that gun charges

were not involved in this case.

The “Other” Heroin Transactions

Police Officer Roger Garay was permitted to testify to

two conversations he overheard, while in civilian clothes,

on October 6, 1977. The first conversation Garay overheard

9a

as Viserto and a man later identified as Paul Caiano passed

him on the street. Caiano told Viserto “we can’t lose him as

a customer, we have to make it up to him” and Viserto

replied “All right, don’t worry.” The second conversation

occurred between Viserto and Rocco in which Rocco refer-

red to a “customer” who had been purchasing for the last

five years at a rate of “25,000 a key” and who, apparently,

was in trouble. Both conversations took place near a res-

taurant owned by Solce, in a neighborhood where Ford

had testified he often met with his principals. The Gov-

ernment argued that the use of the word “key”’—under-

world argot for “kilogram”—indicated that the conversa-

tion between Viserto and Rocco related to drug dealings

which had taken place during the period of the indictment.

The conversation itself took place several days after the

indictment when Garay undertook to conduct surveillance

of the defendants with the hope of eavesdropping on their

conversations. The argument that this related to an inad-

missible “other crime” was not raised below and is, there-

fore, not available here. United States v. Fuentes, 563

F.2d 527, 531 (2d Cir.), cert. denied, 434 U.S. 959 (1977);

United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), cert.

denied, 431 U.S. 959 (1977).

Chief Judge Mishler cautioned the jury that Garay’s

testimony was admissible “only against Viserto and Rocco.”

Since the conversation may be read as coming within the

scope of the conspiracy, it was properly allowed in evi-

dence, in any event, as an admission by the particular de-

fendants. Even if it were not strictly within the conspiracy

charged, the conversation was admissible as a contempo-

raneous dealing in narcotics. Narcotics is a business,

though an illegitimate one, and evidence that the defen-

dants were in the business at a closely related time is rele-

10a

vant, and is not a mere showing of bad character. Fed.

R. Evid. 404(b). See, e.g., United States v. Magnano, 543

F.2d 431, 435 (2d Cir.), cert. denied, 429 U.S. 1091 (1976) ;

United States v. Torres, 519 F.2d 723, 727 (2d Cir.), cert.

denied, 423 U.S. 1019 (1975); United States v. Conley, 523

F.2d 650, 652-54 (8th Cir.), cert. denied, 424 U.S. 920 (1976).

This rule supports the admission of Murray’s testimony

as well.

III

Rule 16

The only objection to the Garay eavesdropping made

below was that the Government prejudiced the defendants

by failing to provide pre-trial discovery of notes taken by

Garay and by failing to provide pre-trial discovery of Of-

ficer Garay’s testimony. Fed. R. Crim. P. 16(1)(A) re-

quires the Government, upon request, to permit inspection

and/or copying of “any relevant written or recorded state-

ments made by the defendant . . . within the possession,

custody or control of the government,” as well as “the sub-

stance of any oral statement ... made by the defendant...

in response to interrogation by any person then known to

the defendant to be a government agent” (emphasis added).

A non-recorded conversation overheard by a Government

agent whose presence is not known does not come within

the latter category. United States v. Green, 548 F.2d 1261,

1267 (6th Cir. 1977). The dictum in United States v. Perce-

vault, 490 F.2d 126, 129 (2d Cir. 1974), cited by appellants,

is inapplicable since it was made before the amendment of

Rule 16, effective December 1, 1975. Since Garay made

notes of the conversation on a newspaper, it might be

argued, nevertheless, that appellants’ statements were “re-

corded” within the first category of discoverable material

lla

covered by Rule 16(a). But because the statement was

memorialized originally only in the recollection of a wit-

ness, it is not discoverable. See United States v. Feinberg,

502 F.2d 1180, 1182-83 (7th Cir. 1974), cert. denied, 420

U.S. 926 (1975). No written record was contemplated when

the statement was made. Jd. Garay’s notes were nothing

more than a hasty reminder to himself of what was said.

In any event, there was no prejudice, since Garay’s state-

ment was made available to the defense on the eve of trial.

See United States v. Lam Lek Chong, 544 F.2d 58, 69

(2d Cir. 1976), cert. dented, 429 U.S. 1101 (1977).

IV

Duplicitous Counts

Viserto, Rocco, and Solce contend that Counts Two and

Three are duplicitous in that each count charges that the

defendants both distributed heroin and possessed heroin

with intent to distribute it, within the specified time pe-

riods. They argue that because of the alleged duplicity

some jurors might have convicted appellants for distribut-

ing while others might have convicted for possession with

intent to distribute, thus raising a question whether there

was, in fact, a truly unanimous verdict on either.

Since the alleged duplicitous character of the counts ap-

pears on the face of the indictment, appellants could have

moved before trial to dismiss the indictment. Fed. R. Crim.

P. 12(b)(2). Failure to make the appropriate motion is a

waiver. United States v. Droms, 566 F.2d 361, 363 (2d Cir.

1977) (per curiam) ; United States v. Rodriguez, 556 F.2d

638, 641 (2d Cir. 1977), cert. denied, 434 U.S. 1062 (1978);

and see generally Davis v. United States, 411 U.S. 233, 243

(1973) ; United States v. Kelley, 395 F.2d 727, 729-30 (2d

Cir.), cert. denied, 393 U.S. 963 (1968). In any event, the

12a

statute, 21 U.S.C. § 841(a)(1), makes distribution and pos-

session with intent to distribute a single offense. The in-

dictment is in the standard form used to set out the means

by which the single offense may be committed. That does

not make the indictment duplicitous. United States v.

Astolas, 487 F.2d 275, 280 (2d Cir. 1973), cert. dented, 416

U.S. 955 (1974); United States v. Lennon, 246 F.2d 24, 27

(2d Cir.), cert. denied, 355 U.S. 836 (1957). And the pro-

priety of this conjunctive pleading has been upheld pre-

cisely when the attack involved 21 U.S.C. 4 841(a)(1).

United States v. Orzechowski, 547 F.2d 978, 986-87 (7th

Cir. 1976), cert. denied, 431 U.S. 906 (1977) ; United States

v. Herbert, 502 F.2d 890, 893-94 (10th Cir. 1974), cert. de-

nied, 420 U.S. 931 (1975).

In any case there could have been no confusion on the

part of the jury because Chief Judge Mishler charged only

the elements of possession with intent to distribute and did

not charge at all the elements of “distributing.” The argu-

ment about jury unanimity is accordingly unconvincing.

V

Supplemental Charge

The court’s supplemental charge on constructive posses-

sion was given in response to a jury request for additional

instructions. During the course of their deliberations, the

jury delivered to the court a note which read: “We want

to hear your charge on this Count [Two]. We would like

to hear the iaw on circumstantial evidence in regard to

the verdict so all jurors have this clear in their minds.”

After a colloquy with counsel concerning the meaning of

this note, the trial judge decided that it was best to read

it as a request to restate the essential elements of the crime,

and to define the various terms in the charge. The Assist-

13a

ant United States Attorney suggested that a charge on

actual and constructive possession, which had not been

included in the original charge, would be appropriately

included in the court’s response. The judge determined to

poll the jury concerning their desire for a definition of

possession. One juror responded in the affirmative, and

the judge gave the requested charge.

We find no improper or partial behavior in this. The

supplemental charge which the court delivered was re-

sponsive to the jury’s request. The definition of possession

was correct. Considered as a whole, the supplemental

charge was balanced and did not display any partiality to

the Government’s case. Though counsel might have re-

quested a “mere presence” instruction if the defense had

been informed in advance that a constructive possession

charge was to be used, we cannot agree that “[t]he critical

role of good argument was vitiated by the unrequested, un-

announced and untimely instruction.” Viserto Brief at 37.

Counsel had vigorously argued the defense theory that

Viserto, Rocco and Solce had only come into contact with

Ford through gambling activities; and the prosecution had

argued with equal vigor defendants’ control over Ford’s

source of heroin. The charge on constructive possession

thus in no way deviated from the path of trial that the

parties had already pursued. Cf. United States v. Martin,

525 F.2d 708, 707 (2d Cir.), cert. denied, 423 U.S. 1035

(1975).

VI

We come finally to the argument of appellants Covington

and Payne that the District Court failed to follow the pro-

cedure established by Fed. R. Crim. P. 24(¢) in dismissing

alternate jurors. Rule 24(c) provides that a court may in

its discretion direct that not more than six individuals “be

l4a

called and impanelled te sit as alternate jurors.” Alternates

are to replace regular jurors “in the order in which they

are called.” The Rule further provides that “[a]n alternate

juror who does not replace a regular juror shall be dis-

charged after the jury retires to consider its verdict.”

It is undisputed that this procedure was not followed

below. Instead, sixteen jurors were impanelled, without

any designation as regulars or alternates. Before the jury

retired, defense and prosecution were given the opportu-

nity in turn to select jurors to be discharged, until the

requisite number of “regular” jurors remained. All parties

stipulated to this procedure before trial after a full expla-

nation of the procedure by Chief Judge Mishler.

Apparently, this procedure is not uncommon in the Fast-

ern District of New York. The supplemental appendix indi-

cates that at least two of the judges in the District regu-

larly employ this practice, but only if all counsel agree.

This procedure was challenged but not disturbed in this

court’s per curiam decision in United States v. Rauch, 574

F.2d 706 (2d Cir.), cert. denied, 99 S. Ct. 110 (1978). We

did not, however, expressly consider the validity of the

Eastern District practice. We think that the issue remains

open and warrants comment.

More than a decade ago, we cautioned that “[t]he ab-

sence of benefit being so clear and the danger of prejudice

so great, it seems foolhardy to depart from the command of

Rule 24.” United States v. Hayutin, 398 F.2d 944, 950 (2d

Cir.), cert. denied, 393 U.S. 961 (1968). That case involved

the failure to discharge the alternate jurors “after the jury

retires to consider its verdict.” Rule 24(c). The convictions

were affirmed since the court found no prejudice.

Here a benefit is asserted—that the jurors, not knowing

who will be chosen, are more likely to stay awake during the

15a

trial. There is no empirical evidence that jurors clearly

marked as alternates are less attentive than other jurors.

Be that as it may, we commend the judges in the Eastern

District who try to be innovative, but we caution again that

Rule 24(¢) represents a national consensus of bench and

bar and ought not be disturbed on a local level.

It is true that the judges who use the method do so only

when all counsel stipulate, but one can only speculate on

the varying degrees of reticence of counsel to oppose the

stated preference of the trial judge. Since we find no coer-

cion or prejudice in the colloquy here and since the stipula-

tion was signed by each defendant and by all counsel after

extensive colloquy, there is no reason to upset these convic-

tions. The failure to follow the rule strictly has been

waived. See United States v. Baccari, 489 F.2d 274 (10th

Cir. 1973) (per curiam), cert. denied, 417 U.S. 914 (1974).

We should say, nevertheless, that we do not favor the

amendment of the federal rules of criminal procedure by

a general resort to stipulations. Consistency on jury

selection, including the method of dismissing alternate

jurors, throughout the federal court system, strikes us as

desirable in the interest of stability and uniformity.

The procedure used in this case is worthy of considera-

tion by the Federal Judicial Center and the Committees

concerned with amendments to the Federal Rules of Crimi-

nal Procedure, but unless there is an amendment of Rule

24(c), we believe the Rule should be followed everywhere.

Appellants cite only one case allegedly in support of

reversal in spite of a stipulation, United States v. Lamb,

529 F.2d 1153 (9th Cir. 1975) (en banc), but that case con-

cerned the substitution of an alternate juror after the origi-

nal jury had already engaged in extensive deliberations.

The court found that there had been no stipulation for the

l6a

substitution of the alternate juror. It also held, alterna-

tively, that even if an alternate is made a regular juror

after deliberations have begun by stipulation, that would

not cure the disregard of the mandatory rule. The substi-

tution of an alternate after the jury deliberations have

begun is different from our case.

We have considered the other arguments raised by the

appellants and find them to be without merit. Accordingly,

we affirm the convictions of all appellants.

570—3-23-79 bd USCA—4391

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