# Petition — Viserto v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0347%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 841 ## Text | 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 RECORD PRESS, INC., 157 CHAMBERS ST., N. Y. 10007, (212) 243-5775 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0347%3A1. Public record. Not legal advice.