# Petition — Gode v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 965

## Text

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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

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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

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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

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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.
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~ 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 -

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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-

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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

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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

---

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