Petition — Smyer v. United States

[MICHAEL RODAK, JR, CLERK. |

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. FS =1900

WILLIAM R- SMYER and BYRON R: MAY,

Petitioners,

vs.

UNITED STATES OF AMERICA

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Frederick H. Sherman

Sherman & Sherman

Box 850

210 South Silver

Deming, New Mexico 88030

Counsel for Petitioners

INDEX

Reference to Opinions and Reports Below....................55. |

I eee SL GPa ads on tins 4 eh 5 0 8 Owe ae 1

pS eS DE SE 2

1.

2.

The Antiquities Act Section 16 U.S.C. 443 is constitutionally

vague.

The decision of the court of Appeals for the Tenth Circuit

denying the defendants right to a jury trial where charged

with and convicted of 11 counts of violating the Antiquities

Act, 16 U.S.C. 433 is contrary to Article 3, Section 2 of the

Federal constitution and the Sixth Amendment to the United

States Constitution.

The District Courts decision requiring the Defendants to

make a choice between waiving venue already established

or waiving their right to a jury trial is contrary to Article 3,

Section 2 of the Federal Constitution and the Sixth Amend-

ment to the Federal Constitution.

The intentional suppression of evidence by the assistant U.S.

Attorney contrary to discovery required under 28 U.S.C.

Rule 16 (a) (1) (A), (C), & (D) of the Federal Rules of

Criminal Procedure and the intentional misrepresentations

as to the existence of evidence later presented violates the

due process clause of the 14 Amendment and of the 6th

amendment of the United States Constitution.

The admission of evidence obtained from the defendants by,

what would reasonably be perceived by them as threats and

promises, is in violation of the defendants right against self

incrimination of the 5th Amendment of the United States

Constitution.

Constitutional Provisions, Statutes and Rules Involved.......... 2

EAL IEEE ST 3

Reasons for Granting the Writ of Certiorari.................... A

CONSTITUTIONAL PROVISIONS

th MIRREN BSG tr tact ie RR CRASS ee Lee line Ws 1,2, 8

POR IN Gahan 5c 0 ceceasleeen outs dome cae ee 2

RR ca eg Ee Per a AOR he aS ee 1,2, 8

UTE SION. cca.ut VeRuvedes omits Acca cues tee 2

STATUTES

LS it NR Ses ogi i apn on ee ee MET Yb FoF 1,2,3,6

BO Ras SHU WP EOP CUP CHRD TOP GE oc ec ck ce trcwcacesen 2, 4, 5,9

I Se as OE nnd enian ba ekaanetn 2,7,8

ES RE eatin Ca CELE Sc Lind aahitek Guia econ eeu unoe 1

Se ls HES nos ic BO GRA ee tat eat eek excbelun dibeskaeneeen’s 1

ANNOTATION

‘Distinction between petty and serious offences for purposes

of federal constitutional right to trial by jury- Supreme Court

SI re, CT a 8 Shas oe hotanr i adesVentesevenonavericeas 7

CASES

Acuff v. Allen, 191 SW 2d 196 28 Ten. App. 451...............05.. 10

Baidwin v. New York, 399 U.S. 66, 26 L Ed 437,

eh ea le ck vie vhs Whedd cas Va see heae 7

Ballen v. Georgia, 435 U.S. 223 55 L Ed 2d 234,

re rie PES s Cah vitals «Ke A ce kein eee Somes 7

Barth v. Adelstien, 152 P2d 498, 66 CA 2d 406.................08. 10

Bowey v. Columbia, 378 U.S. 347, 12 L Ed 2d 8904,

Sods (cea ark aha Waa 'g tbc RS 6% WRN A a Bm Roce MAE 6

Burdock v. Wittich, 156 P2d 90, 46 CA 2d 456...............0045. 10

Calvert v. London, 210 NE 2d 376, 137 Ind. App. 595.............. 10

Carnley v. Cochran, 369 U.S. 506, 512, 515,8 L Ed 2d

ee ee ee ED ks iss va a vata < eines Ga bAee aed 8.

Carpenter Steel Co. v. Pellequin, 46 CA Rptr. 502, 237,

Re Sak ta eel awaw sce cee eee 10

Cooke v. Real Estate Trust Co., 22 A 2d 554, 180, Md 133......... 10

District of Columbia v. Claus, 300 U.S. 617,81 L Ed ;

TO ee ee bia sala w baa hho calene ie WAST PUR: 7

Frank v. Wright, 205 SW 434, 140, Ten 535.................. ; Kee

Greyned v. City of Rockfor, 408 U.S. 104,33. L. Ed. 2d

a a as ola a es'y bale ae nuiets 6

paarrieen vy. Vous. 9 How. 372, 19 L. Ed 179... ov... once aneceses 6

Hyde v. United States, 225 U.S. 347, 348, 56 |. Ed. 1114,

ORE RRR SIGS EROS e oe earner ee cree Minas Sine Wig septate Whe 8

Jenks v. United States, 353, U.S. 657, 1 L Ed 2d 1103,

og EM 8g RR Ore P rere ere ee PT rere

Johnson v. Aerbst, 304 U.S. 458, 464, 82 L Ed 1466,

i ee AE ho bas vee hes Cobadecashheenabeseesat

McMillan v. Keck, 260 P. 1079, 82 Colo 434.................

Patton v. United States, 281 U.S. 276, 312, 74 L Ed 854, 870,

CU No ree> op ctdoa vith nck eeenabeneeaumans

Platt v. Minnesota Mining & Manufacturing Co., 376 U.S.

240, 11 L Ed 2d 674 84S. Ct. 769, (1964) ..... 0... ccc eee eee

Proffitt v. Providence Washington Inc. Co., 234, SW 2d

O94 ATE, ZIP SW 2G S79 VSO TOS BOF. occ etc ce cence

Rowan v. United States Post Office Department, 397, U.S.

728, 25 L Ed 2d 736, 90 S. Ct. 1484 (1964)...............05.

| a) fer ee ee

United States v. Cores, 356, U.S. 405 2 L Ed 2d 873, 78’

ee Ne PUP RS oa Se viscenis Kase es ee abie adeeb se cee ew ares

United States v. Diaz, 499 Fed 2d 113.............. 0.0000

United States v. Resnick, 299 U.S. 2078 1L Ed 127,

er Sc ahs I cs hy Preiss UR Cain awe CR a baw agape Reese Vs

Watwood v. Steur, 201 P. 2d 460, 86 CA 2d 40................

IN THE SUPREME COURT OF THE UNITEDSTATES

UNITED STATES OF AMERICA,

Petitioners, No.

vs. PETITION FORAWRIT

OF CERTIORARI TO

THE UNITEDSTATES

SUPREME COURT

WILLIAM R. SMYER and

BYRON R. MAY,

Respondents.

Respondents pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals entered on April 2,

1979.

REFERENCE TOOPINIONS AND REPORTS BELOW

The opinion of the United States District of New Mexico denying

respondent’s motion to dismiss is printed in Appendix B hereto

and is unreported. The opinion of the Court of Appeals, which

affirmed the judgment of the United States District Court of New

Mexico, is printed in Appendix A hereto and is to be reported in

the official reports.

JURISDICTION

The judgment of the Court of Appeal, printed in Appendix A

hereto, was made and entered on April 2, 1979. The order denying

rehearing was made and entered on April 30, 1979. Court of

Appeals stayed its mandate for 30 days on May 18, 1979, pending

the filing of a petition for a writ of certiorari and a final

determination thereon by this Court.

The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1).

THE QUESTIONS PRESENTED

1. The Antiquities Act Section 16 U.S.C. 443 is constitutionally

vague. The ninth circuit in U.S. vs. Diaz held the statute

unconstitutional as vague. The tenth circuit in the case held this

statute constitutional. 28 U.S.C. 2403 may be applicable.

2. The decision of the Court of Appeals for the Tenth Circuit

denying the defendants right to a jury trial where charged with

and convicted of 11 counts of violating the Antiquities Act, 16

U.S.C. 443 is contrary to Article 3, Section 2 of the Federal

Constitution and the Sixth Amendment to the United States

Constitution. Potential sentence was 33 months, actual sentence is

90 days.

3. The District Court’s decision requiring the Defendants to

make a choice between waiving venue already established or

waiving their right toa jury trial is contrary to Article 3, Section 2

of the Federal Constitution and the Sixth Amendment to the

Federal Constitution.

4. The intentional suppression of evidence by the Assistant

U.S. Attorney contrary to Rule 16 (a) (1) (A), (C), & (D) of the

Federal Rules of Criminal Procedure, and the _ intentional

misrepresations as to the existence of evidence later presented,

violates the due process clause of the 14th Amendment and of the

6th Amendment of the United States Constitution.

5. The admission of evidence obtained from the defendants by,

what would reasonably be perceived by them as threats and

promises, is in violation of the defendants’ right against self

incrimination of the 5th Amendment of the United States

Constitution.

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES INVOLVED

The statutory provisions involved are the constitutionality of 16

U.S.C. 443, the Requirements of 28 U.S.C. 16 (a), (1), (A), (C), and

(D) as to pre-trial discovery and 28 U.S.C. 18 as to venue of the

Federal Rules of Criminal Procedure. The constitutional

provisions involved are Article 3, Section 2 of the Federal

Constitution, the 6th Amendment for the Federal Constitution as

to the right of the jury trial, the due process clause of the 6th and

14th Amendments of the U.S. Constitution and the self-incrimi-

nation clause of the fifth amendment of the U.S. Constitution.

These provisions are printed in Appendix C hereto.

STATEMENT OF THE CASE

On November 15, 1978 the defendants, May and Smyer were

each charged with 11 counts of violating the Antiquities Act, 16

U.S.C. 433 and carrying a potential penalty of 990 days in prison.

Trial by jury was set in Albuquerque on December 12, 1978 but

was vacated and reset for January 6, 1979 in Las Cruces after the

court granted the defendants’ motion for change of venue to Las

Cruces as the most convenient forum for the Defendants and their

witness. A few days prior to the trial the defendants discovered for

the first time that the trial in Las Cruces was not set for a jury

trial. The defendants signed a waiver of jury trial only after the

District Court’s decision requiring the defendants to make a

choice between waiving venue in Las Cruces’ or waiving their

right to a jury trial. Las Cruces is approximately 60 miles from

the acts charged and place of Defendants’ Residence. Albu-

querque is approximately 210 miles from Defendants’ residence

and place of acts charged. The most convenient forum for the trial

was Las Cruces and the defendants did not believe they could get a

fair tria! in Albuquerque due to the prejudicial publicity and the

hardship and inconvenicnce to their witnesses. It was on this

reason that the court changed the venue to Las Cruces at the

December 6, 1978 hearing.

16 U.S.C. 433, the Antiquities Act, is constitutionally vague and

indefinite. The United States vs. Diaz 499 F 2d 113 (Ninth Circuit

1974) antiquities were defined by government experts as being

items as much as five years old with cultural or religious

significance. Government witnesses in the present case defined

an antiquity as any object over 50 years old regardless of cultural

or religious significance. Although federal agents thought it to be

usual to give a warning prior to charging a person with violating

the Antiquities Act, defendants had never been warned against

digging. The government had constructed a large 22’x2’ sign on

the roads on both sides leading to where the Defendants were

digging informing the public they were ‘Entering Private

Property.’’ Government witnesses testified that these signs were

4

constructed only when the property had been surveyed to reflect

that it was private property. It is not against Federal law to dig on

Private Property. Antiquities signs warning the public aaainst

digging, were supposed to be placed on the sites in question, and

on the roads leading to the sites because there had been previous

digging on the sites and the sites were located in visual proximity

io the road. Although Antiquities signs were available at the

Ranger Station and although an antiquities sign had previously

been on one of the site, two years before a cow had knocked over

the sign and it had not been replaced. There were no antiquity

signs on the sites in question nor on the road leading to the sites in

question from tne south, although there was a 6 inch by 8 inch sign

for people coming from the north. The roads leading into the sites

were within visual view of the U Bar Ranch and under the

apparent control of the U Bar Ranch. The defendants reasonably

believed they were on private property

At the hearing on the defendants’ motion for discovery and for

a bill of particulars on December 6th the government responded in

writing and orally that they had complied with all discovery.

From the government responses of compliance with all discovery,

the court denied an order for discovery. At trial on January 6th it

was discovered that the scientific reports of Steven Martin as to

whether the sites were on private property or federal property as

would be necessary for proof of a violation of the Antiquities Act

was not disclosed in violation of 28 U.S.C. 16 (a) (1) (D) of the

Federal Rules of Criminal Procedure and representation made

that there was no such proof. A map reflecting the purported

location of the sites relative to federal and private property was

also admitted over objection contrary to 28 U.S.C. 16 and as being

hearsay. A xerox copy of the general location provided to the

defendants reflected that the prosecution intentionally removed

designations on the cnnv furnished to Defendants as to the precise

locations of where the sites were located relative to Federal and

Private Property and the signs constructed by the Government

informing the public they were entering private property. The Bill

of Particulars primarily requested information as to the exact

location of the digging sites to Federai and private property. At

trial it was also discovered that the prosecution had intentionally

suppressed statements made by the defendant May recorded in

government witness reports and testified to over objection at

trial, contrary to 28 U.S.C. 16 (a) (1) (A) of the Federal Rules of

Criminal Procedures.

Defendants confessions and items identified in Counts III thru

XI! should have been suppressed. The uncontradicted testimony

reflects such items were obtained through what amounted to

threats and promises. The statement of Mr. May was obtained

while at the City police station; and while Mrs. May was refused

admittance to the interview that lasted up to two hours. Mr. May

thought the Miranda rights allowed him the right to remain silent

and the right to an attorney but did not understand the

information would be used against him, in light of the promises of

leniency made him. Although the Officer denies making threats

and promises, the uncontradicted testimony as to what was told

the defendants May and Smyer would be considered as threats

and promises by any reasonable person. It is testified that the

officer told the defendant May that he could have an archeologist

come into the site and say the damages done on if could run as

high as $30,000 and he could be prosecuted for the damages, and

that May could also be charged with a felony for wrongful

possession of a fire2rm. The officer admits discussing another

crime, admits having turned over May’s rifle to Alcoholic,

Tobacco and Firearm’s people and admits telling May that

possession of the same could be considered a felony. May testifies

that Dresser told him that if he cooperated 100 percent, Dresser

* would go with him and would recommend leniency to the court. It

is uncontradicted that Officer Dresser indicated to both

defendants that they would probably only get a fine and no

sentence, that the government had an unlimited amount of money

and that things would go smoothly if they cooperated 100 percent

and that they could confiscate and tie up May’s truck for 4 to 5

years if they didn’t cooperate. May’s initial cooperation earned

the release of the truck. The District court denied the defendants’

motion to suppress at the evidentary hearing on December 6, 1978.

6

REASONS FOR GRANTING THE WRIT OF CERTIORI

This petition considers the constitutionality of 16 U.S.C. 433.

There is a direct conflict between the Ninth Circuit Courts and the

Tenth Circuit Courts, to the constitutionality of 16 U.S.C. 433. The

conflict between the different Courts of Appeals regarding the

constitutionality of this statute raised substantial and important

questions which should be resolved by the Supreme Court. There

is a principle that a criminal statute give fair warning of the

conduct it makes a crime and is vague when it exposes people to

some risk or detriment without giving the individual fair warning

of the nature of the prescribed conduct. Rowan v. U.S. Post Office

Department, 397 U.S. 728, 25 L Ed 2d 736; 90 S. Ct. 1484, : (1970);

Bowey v. Columbia, 378 U.S. 347, 12 L Ed 2d 8904 84 S. Ct. 1697

(1964). Vagueness in definition as to what an ‘‘antiquity”’ is,

caused arbitrary enforcement. In this case those enforcing the

statute define an ‘‘antiquity’’ as anything over 50 years old,

regardless of cultural or religious significance. In United States v.

Diaz, 499 Fed. 2d 113, (Ninth Circuit 1974), the enforcement

officials defined an ‘‘antiquity’’ as anything up to 5 years of age

with cultural or religious significance.

Under such circumstances, the Ninth Circuit held the statute

was unconstitutional as being vague. In construction of the penal

statute, all reasonable doubt as to its meaning should be resolved

by strict interpretation in favor of liberity of the citizen. Harrison

v. Vose, 9 How. 372, 13 L Ed 179; U.S. v. Resnick, 299 U.S. 207, (81 L

Ed 127) 57 S. Ct. 126, (1936). The statute is vague for lack of

definition of an ‘‘antiquity’’ allowing arbitrary and discrimina-

tory enforcement by officers contrary to the principals of

Grayned v. City of Rockford, 408 U.S. 104, 33 L Ed 2d 222, 227, 92S.

Ct. 2294 (1972), and in failing to give fair notice to the public.

This petition also raised substantial and important question

concerning the administration of justice in the Federal Courts.

This Court has previously established where the authorized

penalty is in excess of 6 month, a jury trial should be afforded.

Except as to contempt cases, there are a line of cases from this

Court that established that the severity of the maximum

authorized penalty is one consideration the Supreme Court has

held would require a jury trial. Baldwin v. New York, 399 U.S. 66,

26 L Ed 2d 437, 90 S. Ct. 1886 (1970); Ballen v. Georgia, 435 U.S. 223

55 L Ed 2d 234, 98 S. Ct. 1029 (1978). See also annotation

‘Distinction between petty and serious offences for purposes of

federal constitutional right to trial by jury - Supreme Court’’ cases

26 L Ed 2d 916. The present case has an authorized penalty of 990

days.

Besides the actual penalty potential to be imposed, this court

has also considered ‘‘the seriousness with which society regards

the offense’ regardless of the potential penalty as requiring a jury

trial. District of Columbia v. Claus, 300 U.S. 617, 81 L Ed 843, 57 S.

Ct. 660 (1937). To this extent, it is interesting to note that there is

present pending legislation before congress authorizing a fine of

up to $100,000 and making this offense a felony. Prior to this

court’s decision in Scott v. Illinois, S9 L Ed 2 383 decided March 5,

1979 there was no question that the right to a jury trial existed for

the defendants. The significance of Scott in deciding the

defendants right to an attorney being dependent upon actual

imprisonment, draws into direct question whether a defendant’s

right to a jury trial is dependent upon whether the actual sentence

is 6 months or less. The Tenth Circuit in this case extended the

application of Scott to the right to a jury trial by upholding the

denial of a jury trial where the defendants were actually

sentenced to 3 months but could have been sentenced to 33 months.

Until this court clarifies the significance of Scott as to the right of

a jury trial, there will be continuing uncertainty as to the right to a

jury trial.

The waiver of a jury trial should not be valid where conditioned

upon waiving the constitutional right of venue. Venue was

properly changed by the District Court persuant to 28 U.S.C. 18 of

the Federal Rules of Criminal Procedure to the most convenient

forum, and to the District Court at Las Cruces. Requiring the

defendants either to waive their right to a jury trial in Las Cruces

or require them to have a jury trial in Albuquerque and waive

their right to the trial in Las Cruces placed the defendants in the

untenable position of requiring them to choose which constitu-

tional right they would have to waive. Since a jury trial could

easily have been held in Las Cruces it is unknown why any waiver

was necessary. The right to venue in Las Cruces had been set by

the District Court’s decision in compliance with 28 U.S.C. 18. The

right to retain the proper venue is of fundamental constitutional

dimension as reflected in Article 3, Section 2 of the Federal

Constitution and under the Sixth Amendment. Hyde v. United

States, 225 U.S. 347, 348, 56 L Ed 1113, 1132, 32 S. Ct. 793, (1911);

Platt v. Minnesota Mining and Manufacturing Company, 376 U.S.

240, 11 L Ed 2d 674, 84S. Ct. 769, (1964); United States v. Cores, 356

U.S. 405, 2L Ed 2d 873, 78S. Ct. 875, (1958). To waive a trial by jury

the \vaiver must be through the exercise of an uncoerced will and

be voluntary. The court should indulge every reasonable

presumption against the waiver of a fundamental constitutional

right. Patton v. United States, 281 U.S. 276, 312, 74 L Ed 854, 870, 50

S. Ct. 253, (1930) ; Johnson v. Zerbst, 304 U.S. 458, 464, 82 L Ed 1461,

1466, 58 S. Ct. 1019 (1938); Carnley v. Cochran, 369 U.S. 506, 512,

515, 8 L Ed 2d 70, 76, 77, 82S. Ct. 884 (1962).

The defendants’ rights to due process and a fair trial of a

criminal charge against them are seriously jeopardized by the

intentional suppression of evidence and misrepresentation as to

the existence of such evidence by the Assistant U.S. Attorney. The

misrepresentation as to the existence of the evidence remitted at

trial over the defendants’ objection was misleading to the

defendants and greatly hampered their ability to prepare for the

surprise evidence. Such suppression jeopardizes the defendants’

ability to verify the truth of the information presented, to prepare

for and cross examine witness or to present their own evidence in

rebuttal.

At the hearing on the defendants’ motion for discovery and for a

bill of particulars on December 6th the government responded in

writing and orally that they had complied with all discovery.

From the government responses of compliance with all discovery,

the court denied an order for discovery. At the trial on January 6th

it was discovered that the scientific reports of Steven Martin as to

whether the sites were on private property or federal property as

would be necessary for proof of a violation of the Antiquities Act

was not disclosed in violation of 28 U.S.C. 16 (a) (1) (D) of the

Federal Rules of Criminal Procedure and representation made

that there was no such proof. A map reflecting the purported

location of the sites relative to federal and private property was

also admitted over objection contrary to 28 U.S.C. 16 and as being

hearsay. A xerox copy of the general location provided to the

defendants reflected that the prosecution intentionally removed

designations on the copy furnished the defendants as to the

precise locations of where the sites were located relative to

Federal and Private Property and the signs constructed by the

Government informing the public they were entering private

property. The Bill of Particulars requested information as to the

exact location of the digging sites to Federal and private property.

At trial it was also discovered that the prosecution had

intentionally suppressed statements made by the defendant May

recorded in government witness reports and testified to over

objection at trial, contrary to 28 U.S.C. 16 (a) (1) (A) of the

Federal Rules of Criminal Procedures.

28 U.S.C. 16 (a) (1) (A) (C) (D) of the Federal Rules of

Criminal Procedure mandate the proper discovery of scientific

test experiments made in the possession of the government,

require the disclosure of the map reflecting the location of the

sites to the defendants and the defendants’ statements. The action

by the prosecution in repeatedly misrepresenting orally and in

writing to the court and to the defendants that all discovery

requested by the defendants had been made and that there were

no scientific tests or experiments made and physically removing

the exact locations of the sites from the copy of the map furnished

to the defendants, reflects the intentional nature of the

suppression by the Asst. U.S. Attorney. Testimony reflected that

the large federal signs saying the public was entering into private

property placed on roads both leading into and out of the roads to

the sites could only be placed when such properties had been

10

surveyed. Since there is no federal law against digging or

excavating on private property, determination of this issue was

critical toa fair trial being accorded the defendants. Allowing the

use by the U.S. Attorney’s office of evidence the existence of

which has been misrepresented is in violation of the mandatory

rules as to discovery and totally frustrates their purpose.

The suppression of the defendants’ statement recorded by

federal officers should have been furnished pursuant to the motion

for discovery. The refusal to provide such information and the

affirmative statements by the Assistant U.S. Attorney that all

such information had been furnished obviously prejudiced the

defendants’ ability to properly prepare themselves for trial,

prepare for cross examination and prepare for rebuttal testimony

if necessary. The rationale of requiring discovery is well

expressed in Jenks v. United States, 353 U.S., 657, 1 L Ed 2d 1103,

77S. Ct. 1007 (1957) where it is expressed the interest of the United

States in a criminal prosecution should not be to win the case but

that justice be done. A trial that could in a real sense been termed

fair was prevented by the intentional suppression of evidence and

the misrepresentation of its existence by the Assistant U.S.

Attorney. Trial by surprise while reaching desired result by the

U.S. Attorney's office, somehow fails where at the expense of a

fair trial.

IV

Where the uncontradicted evidence reflects that confessions

and the evidence of counts 3-11 was obtained through threats and

promises, the District Court’s refusal to suppress such items

should be reversed. While an appellate court wili not review

disputed contested facts, uncontroverted testimony should be

accepted as true by the appellate court. An appellate court should

not permit uncontradicted testimony of a witness to be discarded

or disregarded arbitrarily or capriciously. McMillan v. Keck 260

P 1079, 82 Colo 434; Cooke v. Real Estate Trust Co. 22 A 2d 554 180

Md 133; Acuff v. Allen 191 SW 2d 196 28 Tenn App. 451; Proffitt v.

Providence Washington Ins. Co. 234 SW 2d 894 Aff. 239 SW 2d 379

150 Tex 207; Watwood v. Steur 201 Pa4 460, 86CA 2d 40c; Barth v

VW

Adelstein 152 p2d 498, 66 CA 2d 406; Burdock v. Wittich 156 P2d 90,

46 CA 2d 456; Frank v. Wright 205 SW 434, 140 Ten 535; Carpenter

Steel Co. v. Pellequin 46 CA Rptr 502 237 CA2d 35; Calvert v.

London 210 NE2 376, 137 Ind app 595.

The uncontradicted testimony reflects the defendants’ confes-

sion and evidence of counts 3-11 were obtained through what

amounted to threats and promises. The statement of Mr. May was

obtained while at the City police station; and while Mrs. May was

refused admittance to the interview that lasted up to two hours.

Mr. May thought the Miranda rights allowed him the right to

remain silent and the right to an attorney but did not understand

the information would be used against him, in light of the

promises of leniency made him. Although the Officer denies

making threats and promises; the uncontradicted testimony as to

what was told the defendants May and Smyer would be considered

as threats and promises by any reasonable person. It is testified

that the officer told the defendant May that he could have an

archeologist come into the site and say the damages done on it

could run as high as $30,000 and he could be prosecuted for the

damages, and that May could also be charged with a felony for

wrongful possession of a firearm. The officer admits discussing

another crime, admits having turned over May’s rifle to

Alcoholic, Tobacco and Firearm’s people and admits telling May

that possession of the same could be considered a felony. May

testifies that Dresser told him that if he cooperated 100 percent,

Dresser would go with him and would recommend leniency to the

court. It is uncontradicted that Officer Dresser indicated to both

defendants that they would probably only get a fine and no

sentence, that the government had an unlimited amount of money

and that things would go smoothly if they cooperated 100 percent

and that they could confiscate and tie up May’s truck for 4 to 5

years if they didn’t cooperate. May’s initial cooperation earned

the release of the truck. The District Court denied the defendants’

motion to suppress at the evidentury hearing on December 6, 1978.

12

Respectfully submitted,

:

Frederick H. Sherman

Box 850

Deming, New Mexico 88030

Attorney for Petitioner

CERTIFICATE OF SERVICE

|, Frederick H. Sherman, do hereby certify as counsel for

petitioner herein, that on the 30th day of May, 1979, | sent the

foregoing Petition for Writ of Certiorari to the Solicitor General’s

office by mailing, first class airmail postage prepaid.

Dated this 30th day of May, 1979.

— ; 4A

®eee FTooeeeo Cee eeeCeeee ean sae se O85 4 8 ee eee SS

Frederick H. Sherman

Box 850

Deming, New Mexico 88030

Attorney for Petitioner

on

a

+ S&S tar

Al

APPENDIX “A”

UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

UNITEDSTATES OF AMERICA,

Plaintiff-Appellee,

vs. Nos. 78-1134

78-1135

WILLIAM R. SMYER and BYRON R.

MAY,

ee eee eee Se

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 77-284-CR)

Robert Bruce Collins (Victor R. Ortega, United States Attorney,

with him on the brief) for plaintiff-appellee.

Frederick H. Sherman (Sherman and Sherman, with him on the

briefs) for defendants-appellants.

Before McWILLIAMS, BREITENSTEIN and McKAY, Circuit

Judges.

BREITENSTEIN, Circuit Judge.

A2

After trial to the court without a jury, the defendants-appellants

were found guilty of each count of an eleven-count information

charging violations of 16 U.S.C. S 433 which relates to American

antiquities. They received 90-day concurrent sentences on each

count.

The offenses occurred in the Mimbres Ranger District, Gila

Nationa! Forest, New Mexico. Count | charges that, without

permission from the Secretary of Agriculture, the defendants

excavated a prehistoric Mimbres ruin at an archaeological site,

herein designated as 250, which was inhabited about 1000-1200

A.D. Count II charges excavation of a ruin at a site designated as

251. Counts II! through XI charge the appropriation from the ruins

of specified objects of antiquity, 800-900 years old.

The two sites are about 300 yards apart and may be approached

either from the north or the south. Forest Rangers had observed

‘very wide, deep-lugged” tire tracks at the sites. On October 29,

1977, a Forest Service Recreation Officer, Roybal, discovered that

a vehicle with ‘‘wide, deep-lugged”’ tires had entered the northern

road leading to the sites and had passed a Forest Service sign

warning that the area was protected by the American Antiquities

Act. Upon his request for assistance, Ranger Bradsby and

Enforcement Officer Dresser came and the three followed the tire

tracks to the ruins. They found freshly dug holes at each ruin,

shovels, picks, a sifting screen, and a small pottery bowl. In an

arroyo between the sites they found a four-wheel drive truck, the

tires on which matched the earlier discovered tire marks. No one

was present at the sites. The officers inventoried the contents of

the truck and had it towed away. That evening defendant May

came to Ranger Bradsby’s home and said that ‘‘he had been

scouting for deer and that his truck had been stolen.’’ A few days

later federal officers interviewed, and obtained statements from,

both May and Smyer. The officers took some artifacts from

Smyer’s home without objection and later, on the execution of a

search warrant, seized other pieces of Indian bowls.

Defendants urge that the Antiquities Act is unconstitutional

because it is vague and uncertain. The Act, which was passed in

1906, provides:

‘Any person who shall appropriate, excavate, injure, or

destroy any historic or prehistoric ruin or monument, or

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any object of antiquity, situated on lands owned or con-

trolled by the Government of the United States, without

the permission of the Secretary of the Department of the

Government having jurisdiction over the lands on which

said antiquities are situated, shall, upon conviction, be

fined a sum of not more than $500 or be imprisoned for a

period of not more than ninety days, or shall! suffer both

fine and imprisonment, in the discretion of the court.”

The claim of vagueness and uncertainty is based on the use in

the statute of the words ‘‘ruin,’’ and ‘‘object of antiquity.’’ In

United States v. Diaz, 9 Cir., 499 F.2d 113, 114-115, the Ninth

Circuit held that ‘the statute, by use of undefined terms of

uncommon usage, is fatally vague in violation of the due process

clause of the Constitution.’’ We respectfully disagree. In Diaz the

charge was appropriation of objects of antiquity consisting of face

masks found onan Indian Reservation. The masks had been made

in 1969 or 1970. The government evidence was that *’ ‘object of

antiquity’ could include something that was made just yesterday

if related to religious or social traditions of long standing.” Id. at

114. Those facts must be contrasted with the instant case where

the evidence showed that objects 800-900 years old were taken

from ancient sites for commercial motives. We do not have a case

of hobbyists exploring the desert for arrow heads. See, Id. at 114.

Defendants admitted visiting the sites on several occasions and

May had sold Mimbres bowls to an archaeologist.

The charges here were the excavation of two ruins and the

appropriation of several objects of antiquity. The defendants’ at-

tack can go only to ‘ruin’ and “‘antiquity.’’ Aruin is the remains

of something which has been destroyed. Webster’s New

International Dictionary, 2d Ed., 1960, p. 2182, ruin (4). Antiquity

refers to ‘‘times long since past.’’ Id. p. 119, antiquity (1). When

measured by common understanding and practice, the challenged

language conveys a sufficiently definite warning as to the

proscribed conduct. United States v. Petrillo, 332 U.S. 1, 8; see

also United States v. Goeltz, 10 Cir.; 513 F.2d 193, 196-197, cert.

denied, 423 U.S. 830.

The case under consideration is not a ‘‘sit-in’’ case like Bouie v.

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City of Columbia, 378 U.S. 347, a vagrancy case like Papachristou

v. City of Jacksonville, 405 U.S. 156, nor an antipicketing case like

Grayned v. City of Rockford, 408 U.S. 104. We are not concerned

with the deprivation of any First Amendment right. In their briefs

defendants charge selective enforcement, but their claim has no

support in the record. The statute in question was designed for the

protection of American antiquities. It affects the property of the

United States and is well within the power over public lands given

to Congress by the federal Constitution. Art. IV, $3, cl. 2.

In assessing vagueness, a statute must be considered in the light

of the conduct with which the defendant is charged. See United

States v. National Dairy Products Corp., 372 U.S. 29, 32-33. The

Antiquities Act gives a person of ordinary intelligence a

reasonable opportunity to know that excavating prehistoric

Indian burial grounds and appropriating 800-900 year old artifacts

is prohibited. See, Grayned v. City of Rockford, 408 U.S. 104, 108.

We find no constitutional infirmity in S 433.

The Gila National Forest was established in 1899. United States

v. New Mexico, U.S. , 98 S.Ct. 3012, 3013. The

Secretary of Agriculture has jurisdiction over historic sites within

forest reserves. 43 C.F.R. S3.1(a). To bolster their claim that they

did not know they were in the National Forest, defendants argue

that the Department gave inadequate notice that the two sites

were on government land. The tire tracks of the vehicle went by

an Antiquities Act sign. When the defendants saw the forest

officers, one of whom was in uniform, they fled. Each defendant in

his statement to officer Dresser admitted that he had been to the

site several times. Mimbres bowls were found in Smyer’s home.

The trial court rejected the defendants’ claim that they believed

they were on private property. The overwhelming evidence shows

violations of S 433.

Defendants claim that they were wrongfully denied a jury trial

in violation of the Sixth Amendment. In Baldwin v. New York, 399

U.S. 66, 69, the Court said:

‘“(N)o offense can be deemed ‘petty’ for purposes of the.

right to trial by jury where imprisonment for more than

six months is authorized.’

The maximum penalty authorized by the Antiquities Act is 90

days imprisonment plus a fine of $500. Violations of the Act are

AS

petty offenses under 18 U.S.C. S 1. The information contained 11

counts, each of which was charged as a separate offense. Each

defendant was found guilty of each count. If consecutive sentences

were imposed, the potential existed of 990 days imprisonment.

The court sentenced defendants to 90 days on each count with the

sentences to run concurrently.

The case was set for trial in Albuquerque, New Mexico on

December 12, 1977. By written motion the defendants requested

that the trial be held in Las Cruces, New Mexico. The court then

set the trial for January 9 in Las Cruces. The defendants

requested a jury. The court said that no jury would be available in

Las Cruces and that the defendants could have a jury trial in

Albuquerque on January 23. After some discussion the defendants

and their counsel each signed waivers of jury trial. Government

counsel also signed waivers and they were approved by the court.

The record shows that the waivers were made knowingly,

voluntarily and with the approval of competent counsel. See

Adams v. United States, 317 U.S. 269, 275-278.

On this appeal defendants assert that they could not have a fair

trial in Albuquerque. The record contains nothing to sustain this

contention. In the trial court, defendants claimed that they could

not afford a trial in Albuquerque. At the sentencing the trial court,

with regard to this contention, said it ‘‘is simply not a fact.’’ The

waivers were made freely and intelligently and defendants are

bound thereby.

In any event, defendants’ reliance on Codispoti v. Pennsylvania,

418 U.S. 506, is misplaced. That case held that where consecutive

sentences aggregating more than six months are imposed,

defendant has a right toa jury trial. Here, concurrent sentences of

less than six months were imposed. Where the actual! sentence for

multiple petty offenses is less than six months, there is no jury

trial right. See, Muniz v. Hoffman, 422 U.S. 454, 475-476, and

Taylor v. Hayes, 418 U.S. 488, 495-496. Scott v. Illinois, U.S.

, decided March 5, 1979 which deals with a defendant’s right

to counsel, is consistent with this view.

Defendants assert that the government did not comply with

Rule 16, F.R.Crim.P., relating to discovery and inspection. At the

trial much controversy arose over the government’s compliance

with a defense motion for discovery. One dispute related to a map

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of the area in which the antiquity sites were located. The defense

claimed that they did not know that they were on government

property. A land surveyor presented an area map. The defense

claims that they did not receive an exact copy and that the

evidence given by the surveyor included scientific tests or

experiments within the purview of Rule 16 (a) (1) (D). We are not

impressed. We are convinced that the government complied with

Rule 16. The record sustains the government’s contention that the

defendants knew they were on government land. If there was any

misunderstanding about the map, the defendants were not

prejudiced.

The defendants assert that the statements which they made to

the officers should have been suppressed. The first complaint

relates to statements of May to officer Bradsby on the evening

that the officers impounded the truck. May came to Bradsby’s

home to inquire about the truck which, he said had been taken

while he was “‘scouting for deer.’’ Bradsby told him that the truck

had been impounded. All the officer did was to answer defendant

May’s questions. Bradsby’s testimony was properly received.

Officer Dresser separately interviewed Smyer and May.

Neither was in custody at the time. Dresser gave each the

required Miranda warnings and each signed a ‘Waiver of

Rights.’’ Each defendant was educated, intelligent, and under no

compulsion. Dresser denied defendants’ claims of threats and

promises of leniency. Credibility is a matter for the trier of the

facts. The court chose to believe Dresser. The defendants’

statements were properly received.

The next objection goes to the receipt in evidence of the tangible

objects which are the bases of Counts III to XI. During his

interview with officer Dresser, May admitted digging at the ruins

and selling two bowls. May offered to return the artifacts. At

Smyer’s home, May selected a number of artifacts from a

collection and turned them over to the officer. Later the officer

returned to Smyer’s home with a search warrant and seized 31

bowls. Agovernment expert testified that certain bowls were ‘‘all

Mimbres classic or Mimbres Black on White Bowls.’’ A shard

found at the site fitted one of the bowls. A government expert

placed the value of the artifacts taken by the defendants at about

$4,000. The sites were prehistoric ruins inhabited by Mimbres

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Indians, a sub-group of the Mogollon culture, from about 1000 to

1200 A.D., and the bowls were made sometime during that period.

The questioned evidence was either given voluntarily to the

officer or obtained by a search warrant of unquestioned validity.

The bowls were adequately identified with the site, both by

physical evidence and the admissions of the defendants. The

evidence was properly received.

Defendants object to the receipt in evidence of a photograph of

defendant May, seized by the officers during an inventory search

of the truck. The photo showed May standing with a skull on his

head and on each shoulder. He was holding skeletal bones in his

hands. The evidence showed the presence of skeletal bones at the

sites. On cross-examination May said that the photo was of him.

After the officers found the truck, they investigated the

Surrounding area and found no one. They decided to impound the

truck and made a routine inventory of its contents. While doing so,

officer Royba! lowered a sun visor, and the questioned photo fell

down. The routine inventory protected the owner’s property while

in police custody, protected the officers against claims and

disputes and against potential danger. South Dakota v.

Opperman, 428 U.S. 364, 368-372, sustains the actions of the

officers. They had reasonable cause to connect the truck with the

excavations at the sites, and it had been abandoned. The séizure of

the photo was proper. The evidence showed that the picture had

been taken at site 250. The picture connected May with the site and

was properly received in evidence.

Ranger Bradsby testified that the special-use permits, which

authorized exploration of antiquity sites, were kept in his office

and that neither May nor Smyer had a permit. The government

introduced a computer print-out which named those who had the

necessary permits. The introduction of the print-out is said to

violate the Rules of Evidence, particularly Rule 802 (hearsay) and

602 (witness-lack of personal knowledge). The government says

that the print-out is admissible under Rule 803(6) (Records of

regularly conducted activity). The controversy need not be

decided because other evidence showed that defendants did not

have a permit, and they did not claim to have one. The

government did not need to offer the print-out to prove its case,

and the defendants were not prejudiced by its receipt.

Affirmed.

Bl

APPENDIX “B”

IN THE UNITEDSTATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, )

daessiitiias )

vs. ) CRIM. NO. 77-284

WILLIAMR. SMYER and )

)

)

BYRON R. MAY,

Defendants.

ORDER

This matter coming on for consideration upon the Motions of

defendants to dismiss, for a bill of particulars, for discovery, to

suppress evidence and for the return of seized property, and the

Court having considered the evidence adduced at the Motion

hearing, the memoranda filed, together with the entire file in this

cause, it is concluded that the Motions are disposed of as follows:

One portion of defendants’ motion to dismiss is based on the

theory that the Antiquities Act, 16 U.S.C. S 433, under which

defendants are charged, is unconstitutionally vague.(1) If is

defendants’ position that regardless of what it is that they are

alleged to have done, a person of ordinary intelligence who

‘explores the desert and the forest (sic) for arrowheads, chards

(1) The Act provides as follows:

Any person who shall appropriate, excavate, injure, or destroy

any historic or prehistoric ruin or monument, or any object of

antiquity, situate on lands owned or controlled by the Government

of the United States, without the permission of the Secretary of the

Department of the Government having jurisdiction over the lands

on which said antiquities are situated, shall, upon coreviction, be

fined in a sum not more than $500 or be imprisoned for a period of

not more than ninety days, or shall suffer both fine and

imprisonment, in the discretion of the court.

B2

(pieces of pottery) (or) old bottles’’ cannot anticipate whether the

objects he finds fall within the scope of the words ‘‘any historic or

prehistoric ruin or monument, or any object of antiquity.”

Defendants’ basic argument is that they can easily imagine

hypothetical situations in which it would be difficult to determine

whether a particular course of conduct violates the Act and that,

accordingly, the Act is “‘so vague that men of common

intelligence must necessarily guess at its meaning and differ as to

its application. .. .‘’ Connally v. General Construction Co., 269

U.S. 385, 391 (1926).

The proper analysis to be followed under the circumstances(2)

is suggested by United States v. National Dairy Products Corp.,

372 U.S. 29 (1926), in which the Supreme Court considered an

attack upon S 3 of the Robinson-Patman Act, 15 U.S.C. S 13a, for

vagueness. In that case National Dairy had been indicted for

selling milk ‘‘at unreasonably low prices for the purpose of

destroying competition.’ The indictment specified that National

Dairy had intentionally sold milk below cost. National Dairy

moved to dismiss the Robinson-Patman counts on the ground that

the statutory provision, ‘unreasonably low prices,’’ was so vague

and indefinite as to violate the due process requirement of the fifth

amendment.

National Dairy argued that S 3 should be tested solely ‘‘on its

face’’ rather than as applied to the acts charged in the indictment.

The government took the position that in considering an attack for

vagueness the Court ought to determine whether the statute was

unconstitutionally vague in its application to the conduct alleged

(2) It is noted that the Antiquities Act is not a statute which

infringes upon first amendment interests, as in Broaderick v.

Oklahoma, 413 U.S. 601 (1972), or which, like a vagrancy

ordinance, establishes ‘‘no standards governing the exercise of

the discretion granted by the ordinance, (and thus) permits and

encourages an arbitrary and discriminatory enforcement of the

law.’’ Papachristou v. City of Jacksonville, 405 U.S. 156, 170

(1971). Consequently, the increased scrutiny appropriate in

considering a challenge for vagueness of a statute in either of

these categories is not applicable here.

B3

in the indictment, regardless of whether or not there is doubt as to

the validity of the statute in all its possible applications. Before

concluding that S 3 is not unconstitutionally vague, the Court

explained the proper course for analysis:

It is true that a statute attacked as vague must

initially be examined ‘‘on its face,’’ but it does not follow

that a readily discernible dividing line can always be

drawn, with statutes falling neatly into one of the two

categories of ‘‘valid’”’ or ‘‘invalid’’ solely on the basis of

such an examination.

We do not evaluate S 3 in the abstract.

“The delicate power of pronouncing an Act of

Congress unconstitutional is not to be exercised

with reference to hypothetical cases... .”’

+++ United States v. Raines, 362 U.S. 17, 22

(1960).

The strong presumptive validity that attaches to an

Act of Congress has led this Court to hold many times

that statutes are not automatically invalidated as vague

simply because difficulty is found in determining

whether certain marginal offenses fall within their

language. +++ Indeed, we have consistently sought an

interpretation which supports the constitutionality of

legislation. +++

Void for vagueness simply means that criminal

responsibility should not attach where one could not

reasonably understand that his contemplated conduct is

proscribed. +++ In determining the sufficiency of the

notice a statute must of necessity be examined in the

light of the conduct with which a defendant is charged.

+++ In view of these principles we must conclude that

if S 3 of the Robinson-Patman Act gave National Dairy

and Wise sufficient warning that selling below cost for

the purpose of destroying competition is unlawful, the

statute is constitutional as applied to them. +++ We

therefore consider the vagueness attack solely in

relation to whether the statute sufficiently warned

National Dairy and Wise that selling ‘below cost’’ with

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predatory intent was within its prohibition of ‘‘un-

reasonably low prices.’’ (citations and footnotes

omitted)

National Dairy Products Corporation, at 32-33.

Applying the same analysis to the facts in the present case, the

question is whether the Antiquities Act gave defendants sufficient

notice that the excavation of two 800 to 900 year old Mimbres

Indian ruins and the appropriation from such ruins of seven

classic Mimbres black and white bowls, a bone awl and a clay

effigy, all of which are approximately 800 to 900 years old, was

within the prohibition of the Act.

The words ‘‘ruin’’ and ‘‘monument” plainly require no guessing

at their meaning, and the term ‘‘objects of antiquity’’ is no less

comprehensible. Webster’s Third New International Dictionary

defines ‘‘antiquity”’ as ‘‘ancient times; times long since past,’’ so

an object of antiquity is an object out of or from ancient times or

times long since past.

While it may not be possible to state in the abstract a precise

number of years that must pass before something becomes an

“object of antiquity,’’ such exactitude is not required.

‘The Constitution has erected procedural safeguards to

protect against conviction for crime except for violation

of laws which have clearly defined conduct thereafter to

be punished; but the Constitution does not require

impossible standards. The language (of a statute

challenged for vagueness is acceptable if it) conveys

sufficiently definite warning as to the proscribed

conduct when measured by common understanding and

practices. The Constitution requires no more.”’

United States v. Petrillo, 332 U.S. 1, 7-8 (1946). See American

Communications Association v. Doud, 339 U.S. 382, 412 (1950). As

we are ‘’(C)ondemned to the use of words, we can never expect

mathematical certainty from our language.’’ Grayned v. City of

Rockford, 408 U.S. 104, 110 (1971). The Antiquities Act must

necessarily use words ‘‘marked by ‘flexibility and reasonable

breadth, rather than meticulous specificity,’ ’’ id,.in order to

BS

accomplish its purposes.

It is clear that the acts alleged in the intormation fall squarely

within the proscription of the Antiquities Act. In light of what the

evidence adduced at the motion hearing indicated was the

defendants’ experience with Indian artifacts and the age of the

artifacts described in the information, the argument that the

defendants could not reasonably have had notice from the

language of the Antiquities Act that their alleged activities

violated that statute is simply not credible. When measured by

common understanding and practice, it is evident that the

language of the Act is not indefinite, vague or uncertain. (3)

Another portion of defendants’ Motion to dismiss is based on the

The Ninth Circuit Court of Appeals reached a contrary

aa in United States v. Diaz, 499 F.2d 113 (9th Cir. 1974). The

defendant in that case was charged with violation of the

Antiquities Act for having appropriated some face masks from an

Indian reservation. Although it was established at trial that the

masks involved were only 3 or 4 years old, a professor of

anthropology testified that such masks were ‘objects of

antiquity’’ because they were related to religious or social

traditions of long standing. Accepting that definition, the court

held that the Act was void for vagueness, for it gave no notice of

the meaning of ‘‘undefined terms of uncommon usage. 499 F.2d

© donee with the facts of that case, the Ninth Circuit opted not

to give the Antiquities Act a limiting construction, which would

have avoided an ‘‘unnecessary pronouncement on constitutional

issues, (and) premature interpretations of statutes in areas where

their constitutional application might be cloudy.” United States v.

Raines, 362 U.S. 17, 22 (1960). As the Supreme Court has stated,

“Our task is not to destroy the Act if we can, but to construe it, if

consistent with the will of Congress, so as to comport with

constitutional limitations.’ United States Civil Service Commis:

sion v. National Association of Letter Carriers, 413 U.S. 548, 571

(1973). At any rate, it is extremely doubtful that Congress

intended the Antiquities Act to prohibit the acquisition of objects

manufactured as recently as 3 or 4 years ago.

Bé

theory that the information unfairly multiplies charges. This

portion of the Motion is not well taken, and will be denied.

The Motions to suppress are not well taken, as the evidence

adduced at the Motion hearing establishes that the items

recovered were the fruits of valid searches, and the statements

made by the defendants were given freely and voluntarily after

defendants had been advised of their rights. The Motions to

suppress will be denied.

The Motion for a bill of particulars is not well taken and will be

denied.

Finally, with respect to the Motion for discovery, the

government has stated that it either has complied or will comply

with all of defendants’ requests with the exception of a request for

a list of government witnesses. Such information is not

discoverable pursuant to Rule 16, and that portion of the motion

will be denied; Now, Therefore,

UW 'S BY THE COURT ORDERED that defendants’ Motions to

dismiss, for a bill of particulars, and to suppress evidence be, and

hereby are denied, as is that portion of defendants’ Motion for

discovery which seeks discovery of a witness list.

UNITED STATES DISTRICT JUDGE

Cl

APPENDIX “’C’’

EXCERPTS FROM

FEDERAL RULES OF CRIMINAL PROCEDURES

28 U.S.C. Rule 16. Discovery and Inspection.

(a)

(1)

Disclosure of Evidence by the Government.

Information Subject to Disclosure.

(A) Statement of Defendant. Upon request of a

defendant the government shall permit the defendant to

inspect and copy or photograph: any relevant written

or recorded statements made by the defendant, or

copies thereof, within the possession, custody or control

of the government, the existence of which is known, or

by the exercise of due diligence may become known, to

the attorney for the government; the substance of any

oral statement which the government intends to offer in

evidence at the trial made by the defendant whether

before or after arrest in response to interrogation by any

person then known to the defendant to be a government

agent; and recorded testimony of the defendant before a

grand jury which relates to the offense charged.

Where the defendant is a corporation, partnership,

association or labor union, the court may grant the

defendant, upon its motion, discovery of relevant

recorded testimony of any witness before a grand jury

who (1) was, at the time of his testimony, so situated as

an officer or employee as to have been able legally to

bind the defendant in respect to conduct constituting the

offense, or (2) was, at the time of the offense, personally

involved in the alleged conduct constituting the offense

and so situated as an officer or employee as to have been

able legally to bind the defendant in respect to that

alleged conduct in which he was involved.

(C) Documents and Tangible Objects. Upon

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request of the defendant the government shall permit

the defendant to inspect and copy or photograph books,

papers, documents, photographs, tangible objects,

buildings or places, or copies or portions thereof, which

are within the possession, custody or control of the

government, and which are material to the preparation

of his defense, or are intended for use by the government

as evidence in chief at the trial, or were obtained from

or belong to the defendant.

(D) Reports of Examinations and Tests. Upon

request of a defendant the government shall permit the

defendant to inspect and copy or photograph any results

or reports of physical or mental examinations, and of

scientific tests or experiments, or copies thereof, which

are within the possession, custody, or control of the

government, the existence of which is known, or by the

exercise of due diligence may become known, to the

attorney for the government, and which are material to

the preparation of the defense or are intended for use by

the government as evidence in chief at the trial.

28U.S.C. Rule18. Place of Prosecution and Trial.

Except as otherwise permitted by statute or by these rules, the

prosecution shall be had in a district in which the offense was

committed. The court shall fix the place of trial within the district

with due regard to the convenience of the defendant and the

witnesses.

Title 16. Conservation

S 433. American antiquities.

Any person who shall appropriate, excavate, injure, or destroy

any historic or prehistoric ruin or monument, or any object of

antiquity, situated on lands owned or controlled by the

Government of the United States, without the permission of the

Secretary of the Department of the Government having

jurisdiction over the lands on which said antiquities are situated,

shall, upon conviction, be fined in a sum of not more than $500 or

C3

be imprisoned for a period of not more than ninety days, or shall

suffer both fine and imprisonment, in the discretion of the court.

(June 8, 1906, ch. 3060, S 1, 34 Stat. 225.)

PROVISIONS OF

THE UNITED STATES CONSTITUTION

ARTICLE Ill

Section 2. The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of the United

States, and Treaties made, or which shall be made, under their

Authority ;--to all Cases affecting Ambassadors, other public

Ministers and Consuls;--to all Cases of admiralty and maritime

Jurisdiction ;--to Controversies to which the United States shall be

a Party ;--to Controversies between two or more States;--between

a State and Citizens of another State;--between Citizens of

different States,--between Citizens_of the same State claiming

Lands under Grants of different States;-and between a State, or

the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and

Consuls, and those in which a State shall be Party, the supreme

Court shall have original Jurisdiction. In all the other Cases

before mentioned, the supreme Court shall have appellate Juris-

diction, both as to Law and Fact, with such Exceptions, and under

such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall

be by Jury; and such Trial shall be held in the State where the said

Crimes shall have been committed; but when not committed

within any State, the Trial shall be at such Place or Places as the

Congress may by Law have directed.

ARTICLE (V)

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public

C4

danger ; nor shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

ARTICLE (V1)

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining Witnesses in his favor, and to have the

Assistance of Counsel for his defense.

ARTICLE XIV

Section 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make or

enforce any law which Shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of

the laws.

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