Petition — Gode v. United States

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IN THE ——_—_—

SUPREME COURT OF THE UNITED STATES

October Term, 1980

no. 9QO=-1364

CHARLES REYNOLDS GODE,

RAY IRWIN ANDERSON, -Petitioners,

Ve.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN W. DICKERSON, JR.

1241 State Street

San Diego, CA 92101

(714) 234-3124

Attorney for Petitioners

KENNETH L. GREENMAN, JR.

1241 State Street,

San Diego, CA 92101

(714) 234-3124

Of Counsel

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

CHARLES REYNOLDS GODE,

RAY IRWIN ANDERSON, Petitioners,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN W. DICKERSON, JR.

1241 State Street

San Diego, CA 92101

(714) 234-3124

Attorney for Petitioners

KENNETH L. GREENMAN, JR.

1241 State Street,

San Diego, CA 92101

(714) 234-3124

Of Counsel

pee awit Wel: He

aie it Sh ns hav OS Lah Pah

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

CHARLES REYNOLDS GODE,

RAY IRWIN ANDERSON, Petitioners,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioners herein, CHARLES GODE

and RAY ANDERSON, pray that a Writ of

Certiorari issue to review the judgment of

the United States Court of Appeals for the

Ninth Circuit entered in the above-entitled

case on February 4, 1980.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Ninth Circuit, whose

judgment is herein sought to be reviewed, is

unreported, and is printed in Appendix A.

JURISDICTION

The judgment of the United States

Court of Appeals for the Ninth Circuit,

affirming the convictions of petitioners for

violation of 21 U.S.C. §841(a) was entered on

February 4, 1980. The jurisdiction of the

Supreme Court is invoked under 28 U.S.C.

§1254 to review that decision.

QUESTIONS PRESENTED

1. The Court of Appeals for the Ninth

Circuit improperly interpreted the legal

effect of the decision of this court in

Kotteakos v. United States, 328 U.S. 750 (1946)

in affirming the trial court's denial of

nl Ca ee i ieee cia isla 2 eee

petitioners' motions to sever.

2. The Court of Appeals for the Ninth

Circuit failed to follow guidelines of this

court and of its own prior decision in

condoning the trial court's failure to

identify and compartmentalize the evidence

in order to reduce the inherent prejudice of

a Mass trial after denial of petitioners'

motions to sever.

STATUTES INVOLVED

No specific statutory challenges are

presented. Rules 8(b) and 14 of the Federal

Rules of Criminal Procedure are involved

tangentially as underlying the decisional

law and the principles set forth therein.

RULE 8(b). Joinder of Defendants.

Two or more defendants may be charged

in the same indictment or information

if they are alleged to have partici-

pated in the same act or transaction

or in the same series of acts or

transactions constituting an offense

or offenses. Such defendants may be

charged in one or more counts

i ae

together or separately and all of the

defendants need not be charged in

each count.

RULE 14. Relief from Prejudicial Joinder

If it appears that a defendant or the

government is prejudiced by a joinder

of offenses or of defendants in an

indictment or information or by such

joinder for trial together, the court

May order an election or separate

trials of counts, grant a severance

of defendants or provide whatever

other relief justice requires. In

ruling on a motion by a defendant for

severance the court may order the

attorney for the government to deliver

to the court for inspection in camera

any statements or confessions made

by the defendants which the government

intends to introduce in evidence at

the trial.

STATEMENT OF THE CASE

The following designations will be

used: Clerk's Transcript by CT; Reporter's

Transcript by RT.

On July 21, 1978, an indictment was

filed in the United States District Court,

Southern District of California, charging

each petitioner with violation of 21 U.S.C

~ =e

§§ 84l(a), 846, 952, 960 and 963. The charges

are conspiracy to import amphetamines and

conspiracy to possess amphetamines with intent

to distribute. These charges were joined

with a substantive count of possessioi: of

amphetamines and a conspiracy to possess

cocaine with intent to distribute, which

involved only co-defendants of petitioners.

(CF Bs. X*7)

The charges stemmed from the relation-

Ship of each petitioner to Elbert Watson,

who was also charged in the indictment.

GODE'S initial connection with Watson was

concerning financing construction of green-

houses which GODE had designed. (RT Vol.VI,

pp 1249,1250,1262,1263) ANDERSON lived in

Northern California and derived income from

construction of redwood tables. (RT Vol. III

pp 1455,1457) He met Watson through a friend

and expressed an interest in GODE'S project.

—

(RT Vol. III, pp 1458,1459)

C Watson did, in fact, advance sums to

GODE which were used to begin set-up of the

greenhouse business. (RT Vol.VI, pp 1268,

1269,1273) GODE'S friend, Munroe, was to

have assisted in this business, but, after

being introduced to Watson, who needed a

pilot, Munroe devoted more of his time to

Watson's activities. (RT Vol. II, pp 471,474,

455,485,488)

ANDERSON also invested in the green-

house business. (RT Vol. VII, p 1460) There

were various meetings between ANDERSON, GODE

and Watson, which were generally connected

with the greenhouse investment. Drug involve-

ment at such gatherings by GODE and ANDERSON

was limited to observation of Watson's drug

distribution organization with some minor

participation, usually in the company of

Munroe who was more deeply concerned with the

re ae

*

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distribution scheme. (RT Vol.II, pp 471-488,493-

507,531-556,592-604,614, Vol.VII, pp 1458-1460)

Watson's money came primarily from the sale of

quantities of amphetamines. which he had previously

imported from Mexico. Sales occurred in California

and other western states. (RI Vol.II, pp 482-489,

510-514) Watson was also setting up a cocaine dis-

tribution nietwokk in thé seme arene. The evidence in

the trial court repeatedly connected GODE and

ANDERSON with Watson's cocaine activities as well as

his amphetamine activities. GODE and ANDERSON were

linked to a cocaine run with Monroe to Santa Barbara,

joint cocaine usage by Watson's associates was stressed,

ahd muctensies’ queen Wikeii: woabiliak tt: sedeain See etn

tamines. However, neither ANDERSON nor GODE was

charged with the cocaine conspiracy. (RT Vol.II, pp

507,534,538,543,548, Vol. III, p 604) Although it is

conceded that drug usage was prevalent among all the

defendants, this usage did not necessarily translate

to conspiracy to distribute or sell amphetamines

2

or cocaine. In the summer of 1977, both GODE and

ANDERSON severed relations with Watson. (RT Vol. III

pp 601,612,622)

In May of 1978, Munroe, working with the DEA,

set up an amphetamine buy with Watson that led to

Watson's arrest, and the eventual indictment of GODE

and ANDERSON. (RT Vol. II, pp 622-629) The indictment

charged three separate conspiracies, conspiracy to

import amphetamines, to possess amphetamines for sale,

and to possess cocaine for sale. The overt acts sup-

porting each conspiracy were also separate and distinct.

In August of 1978, both petitioners moved for

severance based on Rule 14 grounds. (CT pp62-66, 103-107)

On January 4, 1979, GODE renewed his motion for sev-

erance to avoid prejudicial and improper joinder. (CT

pp 445-447) The motion was joined in by ANDERSON. On

January 5, 1979, prior to trial, the motion to sever

was denied. (CT p 491)

Thr jury trial concluded on January 19, 1979,

with a finding of guilty of conspiracy to possess a

controlled substance.

-g8=

~ ANNO ales aA pie eal, goSis i eal eR Slee Pte

with intent to.distribute, as to both GODE

and ANDERSON. (CT. pp 491,492,498,534) Appeal

from the conviction was taken as to both GODE

and ANDERSON on the issues of joinder, sever-

ance and failure of the court to reduce the

prejudicial effect of the joint trial. (CT

pp 503,536)

The appeals were consolidated on motion

of the government and are presented as con-

solidated for purposes of this Petition. On

February 4, 1980, the United States Court of

Appeals for the Ninth Circuit affirmed the

District court. This petition is taken in

exception to that decision, and as the issues

for petitioners are identical, a single

petition is filed on behalf of both.

REASONS FOR GRANTING WRIT

USCS Rules of Court, Supreme Court

Ruie 19 1(b) sets forth some of the possible

o o =

reasons for granting a petition for Writ of

Certiorari. It is submitted that the Court

of Appeais for the Ninth Circuit has failed

to follow the principles set forth by this

Court in the decision of Kotteakos v. United

States, 328 U.S. 750 (1946), and further has

sanctioned departure from the accepted course

of judicial proceedings by the District Court

in failing to find that the District Court

did not properly compartmentalize evidence

as required by Blumenthal v. United States,

332 U.S. 535 (1947) and United States v.

Kennedy, 564 F.2d 329 (9th Cir. 1977).

It is clear from a reading of the

opinion rendered by the Ninth Circuit that the

import of the Kotteakos decision has been

missed and the argument by petitioners, with

respect to the principles of that case,

misread. In the opinion, this case is dis-

tinguished from Kotteakos because there were

-* 10 -

AO AEB BG ten 00 tS bled ay nad ecahe pe Pe Ge AS >

multiple conspiracies in that case, and a

Single one here.

In fact, this case did present multi-

ple conspiracies, and those conspiracies

were charged. The evidence was presented in

such a manner as to create the illusion of a

Single conspiracy. It is certainly true that

some people, like Watson, were members of all

the conspiracies. The same was true in

Kotteakos. Others, as in Kotteakos, were in-

volved, if at all, in the distinct conspiracies

which were chze -ged and had little or no

knowledge of, or connection with, the other

activities. It is absurd to conclude that use

of cocaine or marijuana by Watson's associates,

because the drugs were available, automati-

cally included those associates in all his

conspiracies. This case is similar to

Kotteakos, although with fewer conspiracies.

The government has reversed the situation by

a 2D =

pleading multiple conspiracies and mingling

the proof and argument to present a picture

of one overall conspiracy. The resulting

prejudice is the same as was found in

Kotteakos. The Court of Appeals for the Ninth

Circuit should have followed Kotteakos and

found error in refusal to grant the motions

to sever.

Assuming the joinder was proper, when

severance under Rule 14 was denied, the trial

court was bound to observe thé dictates of

Blumenthal, supra, and Kennedy, supra. Both

of these decisions require limiting and com-

partmentalizing evidence in this kind of

case to prevent prejudice which is a recog-

nized danger attendant on a mass trial. The

Court of Appeals for the Ninth Circuit failed

to enforce the safeguards set forth in these

Opinions and has approved the practice of

mingling the evidence of the separate con-

&. 32°

2 NEST eran te stgielese wide! rb ste ys on

spiracies resulting in undue prejudice against the

petitioners herein.

CONCLUSION

For the foregoing reasons, this

Petition for Writ of Certiorari should be

granted.

DATED: March 4, 1980

Respectfully submitted,

fat bd Kakeoerd >».

W. DICKERSON, JR. \_/

Attorney for Petitioners

CHARLES REYNOLDS GODE and

RAY IRWIN ANDERSON

Of Counsel

a

APPENDIX A

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Cr 78-438-GT

)

) CA Nos.

Plaintiff-Appellee, ) 79-1139

) 79-1275

Vv. ) 79-1372

)

SCOTT CORDON, ) MEMORANDUM

CHARLES REYNOLDS GODE, )

RAY IRWIN ANDERSON, DC No.

)

Defendants/Appellants

)

Appeal from the United States District Court

for the Souther District of California

Before: CHOY and HUG, Circuit Judges, and

BILBY,* District Judge

Appellants Ray Irwin Anderson,

Charles Reynolds Gode, and Scot R. Gordon,

appeal their conviction in the United States

District Court for the Southern District of

California, Gordon Thompson, Jr., J., of

*The Honorable Richard M. Bilby, United

States District Judge for the District of

Arizona, sitting by designation.

conspiracy to possess amphetamines in violation

of 21 U.S.C. §§4481(a) (1) [sic] and 846. The

prosecution of appellants grew out of their

relationship with Elbert Silas (Buster)

Watson, whom the evidence showed to be the

central figure in a very large drug impor-

tation and distribution operation. Appellant

Gode recruited a pilot, Kenneth Munroe, to

help in flying drugs to Watson's far-flung

operation. Based on this experience, Munroe

was able to tie together the various elements

of Watson's operation. Appellant Gode was

involved in the Los Angeles area, while

Anderson worked in Northern California,

and appellant Gordon was in Utah

Appellants, together with Watson and

others not involved in this appeal, were

charged in Counts I and III of a four count

superseding indictment returned in July of

1978. Count I charged all appellants with

a» 2

conspiracy to possess amphetamines, and Count

III charged conspiracy to import amphetamines.

A jury found appellants guilty as charged in

Count I but not guilty as to Count III.

Appellants raise numerous issues in

this appeal. After a review of the record,

we find no merit in any of them, and affirm

the District Court.

Among the many issues, two deserve addi-

tional comment. Appellants claim the District

Court erred in joining appellants with other

defendants for trial, and subsequently failing

to grant a severance. Appellants argue that,

under the holding of Kotteakos v United States,

328 U.S. 750 (1946), they should not have been

joined with other defendants for trial. In

this case, as distinguished from Kotteakos,

there was one continuous conspiracy that con-

tinued throughout the relevant time period.

Further, all of the counts in the indictment

» Se

are clearly factually related. Under these

circumstances, the joinder of these defendants

and the denial of their motion to sever was

proper. United States v Satterfield, 548 F.2d

1341 (9th Cir. 1977).

Appellant Gordon contends that without

the Watson ledgers, there is insufficient evi-

dence to sustain his conyiction. This conten-

tion may be correct but we need not reach it

as we feel the ultimate issue of authenticity

of the records was properly submitted to the

jury for determination.

The evidence supporting the authenticity

of the ledgers was both direct and circumstan-

tial. The witness Dunlap testified that she

lived with Watson from October 8, 1976, until

June 28, 1977. During that time she observed

a locked bedroom to which she did not have

general access. She did on several occasions

enter while Watson was using it, at which

a? ae

Sern oo is a ek RS aS AN A AES | acne

times she observed sacks of amphetamines. 2/

When she inquired of Watson about the bedroom

being locked, he asked her if she wanted to

be responsible for whatever was in the roon.

At the trial she identified her hand-

writing in Exhibit 32 (small green notebook)

placed there during the time she was living

with Watson. She also stated that the other

writing in the book appeared to be Watson's.

She, likewise, identified the handwriting in

Exhibits 28 and 29 as appearing to be Wat-

son's. 2/

Upon cross-examination, her identifica-

tion of Watson's handwriting was weakened by

her admission that it had been two years (at

the time of trial) since she had seen his

handwriting and that the main basis for her

identification was the neatness of the

1 '

/subsequently identified as the room in which

the Watson ledgers were found by the DEA agents

during a search of the house.

2/Exhibit 29 was a series of cards stapled to-

gether with the top card having the initi

"SCT" on it. ; g e initials

3/

writing.—

While the authentication could have

been much stronger, nevertheless, the trial

court found a prima facie showing of authen-

ticity. See Fed.R.Evid. 901(b)(2). Having

done so, the ultimate decision of authenti-

city was for the jury. United States v

Weiner, 578 F.2d 757, 772-73 (9th Cir.), cert.

denied, 439 U.S. 989 (1978); See Fed.R.Evid.

104(a)-(b), 901 (a).

The determination as to the adequacy of

the prima facie showing was one for the sound

discretion of the trial court. United States

v Sutton, 426 F.2d 1202 (D.C.Cir. 1969).

Under all the evidence, both direct and cir-

cumstantial, we find no abuse of that discre-

tion.

AFFIRMED,

3/However, the trial court made a specific

finding that the witness was "very intimidated

and very frightened" and appeared to be "very

reluctant, frankly, to do any testifying

against Watson and anyone else.

i

AFFIDAVIT OF SERVICE BY MAIL

STATE OF CALIFORNIA ) — |

COUNTY OF SAN DIEGO ae

MARTHA SCHWARTZMANN, being first duly

Sworn, says:

That she is a citizen of the United

States, over 18 years of age, a resident of

and employed in the County of San Diego,

State of California, and not a party to the

within action.

That her business address is 1241

State Street, San Diego, California, 92101

That she served the attached Petition

for Writ of Certiorari by placing two (2)

true copies in an envelope addressed to the

following:

Robert Bork

Solicitor General

Department of Justice

10th and Constitution Avenue

Washington, D.C. 20530

Said envelope was thereafter deposited

eg Rens RS ND

in the United States mail on March 5, 1980 at

| Fr ,

San Diego, CAlifornia,. -

SUSCRIBED AND SWORN to before me this fifth

day of March, 1980

OO OP

tind - Chagier.

nee Se in and for

Said County and State

OFFICIAL SEAL .

LINDA D, VASSIER

mil) NOTARY PUBLIC - CALIFORNIA

SAN DIEGO COUNTY

My comm. expires FEB 19, 1983