Petition — Stevens v. United States

In the Supreme Court of the United States

October Term, 1979

GERROLD E. STEVENS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

JOHN C. HUMPAGE

HUMPAGE, BERGER AND HOFFMAN

314 West Seventh Street

Topeka, Kansas 66603

Phone: (913) 235-5351

Attorneys for Petitioner

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

SUBJECT INDEX

ee Oe FE in ic tcteeeoee II

OSA PNR a ae Ld Malena com 2

LE APSR MN RMON RE NE AE Rag E oy LE 3

ee nasi... cevsdassceesanincnnee 3

ERGs IRE Ue Dec ON TO TOOT PE 4

8 Re re ers ee ee TL, 5

Reasons for Granting the Writ—

(A) The Opinion of the United States Court of

Appeals for the Tenth Circuit is in Conflict

With Opinions of Other Circuits, Completely

Overlooks the Prohibitions Contained in Title

III and Additionally Misconstrues and Re-

pudiates Decisions of This Honorable Court .... 10

(B) The Court’s Opinion Further Takes Excep-

tion to Existing Precedent That the Indict-

ment Must Plead the Elements of the Sub-

stantive Offense to State a Public Offense .... 17

(C) The Court’s Opinion Additionally Denies De-

cisions of This Court That Require a Viola-

tion of the Travel Act, 18 U.S.C. $1952, That

the Interstate Travel Must be More Than

“Minimal and Incidental” ~............. eee 19

i ERE Sate an? Vata SOLER I Ne Ue Yee Ne 22

Index to Appendices

Appendix A—Opinion of the United States Court of

TO SN incisions Al

Appendix B—The Order of the United States Court of

Appeals, Tenth Circuit, Overruling the Petitioner’s

Petition for a Rehearing En Bane .....022..2..-o ence. Alv

II

TABLE OF AUTHORITIES CITED

CASES

Carlson v. United States, 187 F.2d 366 (10th Cir. 1951),

cert. denied, 341 U.S. 940, 71 S.Ct. 1000, 95 L.Ed.

I FN ce ape ori thh corccgasies reese thetoennasennepeembelanenes 18

Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840,

Se EE WI 0 PE ga seasianspotexno bacaseietuncentanscchvemsachonenibins 18

Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357,

Be a Oe CRIED nictenincceniicennrenictnendticsomneses 12, 16, 17

Hudspeth v. McDonald, 120 F.2d 962 (10th Cir. 1941),

cert. denied, 314 U.S. 617, 62 S.Ct. 110, 86 L.Ed. 496

EGRESS PUN capes uk Ata ante t srt LOMCERRN Ie 18

Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 5€

i, ee ek I dict haci cand asca reasons anivape peas inc eae ninienedndnne 18

In re Olander, 213 Kan. 282, 515 P.2d 1211 (1973) Sines 13

Joplin Mercantile Co. v. United States, 236 U.S. 531,

G31 G.Ct. GO, BO Lis. TOG CADIS) «2.2.0.2 -nienccncen-......., 19

Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266,

Pe i CIEE cerecrietacatareninnvstictenoenee 11, 16

Nelson v. United States, 406 F.2d 1136 (10th Cir. 1969) 18

Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28

ae MY 7% GPE TED oss cent can Saisie atictktreraiecatcowasecileinentons 21

Robinson v. United States, 263 F.2d 911 (10th Cir.

SRST rete ARN an ga oe TOA EC. DL I eaten ae od OD 18

Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56

a I LIFT «crt ccteuiscdapcectrcacienhesnebinrinis timbeceipcabeaess 17

Silverthorne Lumber Co. v. United States, 251 U.S. 385,

9 Bt. BRE, OF Ge Si0 (ARO) onc 16

Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967),

rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21

Wes ND OEE A I an i escdicacantetis 20

State v. Dowdy, 222 Kan. 118, 563 P. 2d 425 (1977) ........ 13

III

United States v. Altobella, 442 F.2d 310 (7th Cir. 1971) 22

United States v. Botticello, 422 F.2d 832 (2nd Cir. 1970) 22

United States v. Brouillette, 478 F.2d 1171 (5th Cir. -

| REE IPI OCIS Ie SOC E HE WRN at) Ree het 20

United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054,

SSL Oe SOS CITE) ieee 10, 13, 15, 17

United States v. Cruz, 581 F.2d 535 (5th Cir. 1978) ....10, 14

United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85

BGG RI. IED eri etesglectietescdincinn rained akadonilndoascns 18

United States v. Gibson Specialty Company, 507 F.2d

FE _, .. | peercmeermnyenete Semanae oro. Ae eee or 20, 21

United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820,

OO dame oe (CIRVE) kc eae 12,16

United States v. Guerrero, 517 F.2d 528 (10th Cir.

WO acc occascesbabcicnaniivecd mcbbassilccasesaemiatmaiie ciel. 19

United States v. Hawthorne, 356 F.2d 740 (4th Cir.

1966), cert. denied, 384 U.S. 908, 86 S.Ct. 1344, 16

ps RR Raitt an monde ais are a Roe brit OA 22

United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974),

cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d

Re CN sie rince ict abit enecenats Aether cetacean ides 22

United States v. King, 521 F.2d 61 (10th Cir. 1975) ....18, 19

United States v. Lynn, 461 F.2d 759 (10th Cir. 1972) 21

United States v. McCormick, 442 F.2d 316 (7th Cir.

6 (EERO Ris A) A SELOPR OOO. LR RRL NY IE ee Chae 22

United States v. Prince, 529 F.2d 1108 (6th Cir. 1976) 20

United States v. Rubalcava-Montoya, 597 F.2d 137 (8th

Ry IER these iets spa peasant ntetaases eo aone prapanyiasahevereaoons 10, 15

United States v. Scios, 590 F.2d 956 (D.C. Cir. 1978)

ER a a BRE Shan Mok LR aeRO 2 Ned oro a Se 10, 16

United States v. Villano, 529 F.2d 1046 (10th Cir.

1976), cert. denied, 426 U.S. 953, 96 S.Ct. 3180 (1976)

IV

United States v. Zemater, 501 F.2d 540 (7th Cir. 1974) 21

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407,

S LUA GOR (OG wk eee 14, 15, 16

STATUTES AND RULES

UB: Comeh;, Ba, By nnrcniccncletetnekbasien en 4,12,13

16 URE. TOE ce nn.t.- cee 2, 3, 6, 20, 22

18 USS. a8 Cie EEE) «...- cnc 3, 12

TO ER. TI wickcccincennnasinte nee 4, 12, 16,17, 22

3D WK. TRG accuses 16

1S UBC. SREB CRB) CR) nascent 3, 4, 12,17

33 UBL. Gilat’) «0 1-2, 3,5, 17

Be TTR OD eset ene 2, 3,5, 6, 17, 18

2 UGC. TRRGGR) on... eon 3

Ride Gila) FBP... 2... ciniiniciccaacneaneeee 3, 17

Kansas Statutes Annotated 22-2514 0002... 13

In the Supreme Court of the United States

October Term, 1979

GERROLD E. STEVENS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

TO: THE HONORABLE CHIEF JUSTICE and ASSO-

CIATE JUSTICES OF THE UNITED STATES SU-

PREME COURT:

Petitioner, Gerrold E. Stevens, prays for a Writ of

Certiorari, to review the judgment of the United States

Court of Appeals for the Tenth Circuit, which affirmed

the judgment of the United States District Court for the

District of Kansas, sustaining the Petitioner’s conviction

of the two counts he was charged with in a seven count

Indictment, namely Counts I and VII; Count I of the In-

dictment alleging a Conspiracy to Distribute Heroin, a

Schedule 1 controlled substance, in violation of 21 U.S.C.

2

841(a)(1) and 846; Count VII of the Indictment alleged

Interstates Travel to Promote a Conspiracy to Distribute

Heroin, in violation of 21 U.S.C. 846 and 18 U.S.C. 1952.

The Trial Court on October 11, 1977, after overruling the

Petitioner’s post-trial Motions, sentenced the Petitioner to

concurrent sentences of ten (10) years on Count I and

five (5) years on Count VII.

OPINION BELOW

The United States District Court for the District of

Kansas, the Trial Court, SUSTAINED the Petitioner’s pre-

trial Motion to Suppress “WIRETAPS” herein for a viola-

tion of Title III, however admitted into evidence, over the

Petitioner’s objection, evidence derived therefrom, the

testimony of a co-defendant, William Deal, whose revela-

tions did not come to pass from an independent source,

but was the result of the suppressed “WIRETAPS”,

then only being revealed some thirty days subsequent to

his apprehension, after official inducement, on the basis

that his testimony became “attenuated”. The Trial Court

overruled the Petitioner’s Motion to Dismiss the Indict-

ment in that Counts I and VII fail to allege a public of-

fense and further denied the Petitioner’s Motion for Judg-

ment of Acquittal as to Count VII, prefaced on the Gov-

ernment’s failure to show consummation of an overt act

in relation to a violation of 18 U.S.C. 1952. On Appeal,

the United States Court of: Appeals, Tenth Circuit, af-

firmed the District Court’s judgment on November 15,

1979, further denied the Petitioner’s Motion for Rehearing

en banc on February 27, 1980, the decision of the United

States Court of Appeals, Tenth Circuit, is not reported as

yet, however, the Court’s decision is attached hereto as

Appendix A, the Court’s Order denying the Petitioner’s

Petition for Rehearing En Banc on February 27, 1980, is

attached hereto as Appendiz B.

JURISDICTION

The jurisdiction of this Honorable Court is invoked

under 28 U.S.C. 1254(1), along with the Court’s Rule 19(b).

The issues, along with the Federal Constitutional ques-

tions sought to be reviewed by this Honorable Court, were

developed, raised and re-raised in all courts below, which

is readily evidenced in reviewing the Opinion of the

United States Court of Appeals for the Tenth Circuit.

(A. 8-10)

QUESTIONS PRESENTED

The Federal Constitutional issues sought to be re-

solved herein are of extreme importance as is the unique-

ness noted in the Opinion. The United States Court

of Appeals for the Tenth Circuit’s Opinion is both divisible

and contrary to existing precedent:

(1) In addition to the Fourth Amendment of the

United States Constitution applying to Title III, 18 U.S.C.

2510 et seq., this is not to the exclusion of the Act’s own

safeguards, 18 U.S.C. 2515 and 18 U.S.C. 2518(10) (a). If

evidence is obtained in violation of Title III or is deriva-

tive thereto, is attenuation available that comes to pass

through official inducement?

(2) Does a Conspiracy Indictment pursuant to 21

U.S.C. 846, relying on the substantive violation of 21 U.S.C.

841(a)(1), which fails to plead the elements of the sub-

stantive offense, fail to state a public offense?

(3) To prove a conspiracy violation pursuant to 21

U.S.C. 846, in violation of the Travel Act, 18 U.S.C. 1952,

is it necessary to prove commission of an overt act in viola-

tion of law performed after travel in interstate commerce

to sustain a conviction?

STATUTES INVOLVED

The Fourth Amendment to the United States Con-

stitution (U.S. Const., Amend. IV) provides:

“The right of the people to be secure in either house,

person, papers and effects, against unreasonable

searches and seizure, shall not be violated, and no

warrant shall issue, but upon probable cause, sup-

ported by oath or affirmation and particularly de-

scribing the place to be searched and persons or things

to be seized.”’

18 U.S.C. 2515 provides:

“Whenever any wire or oral communication has been

intercepted, no part of the contents of such communi-

cation and no evidence derived therefrom may be re-

ceived in evidence in any trial, hearing, or other

proceeding in or before any court, grand jury, depart-

ment, officer, agency, regulatory body, legislative com-

mittee, or other authority of the United States, a State,

or a political subdivision thereof if the disclosure of

that information would be in violation of this chapter.”

18 U.S.C. 2518(10) (a) provides:

“Any aggrieved person in any trial hearing, or pro-

ceeding in or before any court, department, officer,

agency, regulatory body, or other authority of the

United States, a State, or a political subdivision there-

of, may move to suppress the contents of any wire or

oral communication, intercepted pursuant to this chap-

ter, or evidence derived therefrom, on the grounds

that—

(i) the communication was unlawfully inter-

cepted;

5

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Such motion shall be made before the trial, hearing,

or proceeding unless there was no opportunity to make

such motion or the person was not aware of the

grounds of the motion. If the motion is granted, the

contents of the intercepted wire or oral communica-

tion, or evidence derived therefrom, shall be treated

as having been obtained in violation of this chapter.

The judge, upon the filing of such motion by the ag-

grieved person, may in his discretion make available

to the aggrieved person or his counsel for inspection

such portions of the intercepted communication or

evidence derived therefrom as the judge determines

to be in the interests of justice.”

STATEMENT OF THE CASE

This appeal is from a jury verdict finding the defen-

dant guilty under Counts I and VII of a seven count in-

dictment. Count I charged that the defendant and others

“(f]rom on or about April of 1976 up to and including the

date of this indictment” “willfully and knowingly did

combine, conspire, confederate and agree together and

with other persons to the grand jurors unnamed or un-

known, to distribute heroin, a Schedule 1 controlled sub-

stance .. . in violation of 21 U.S.C. §841(a) (1) and §846.”

(R.,Vol.I,1.) A number of overt acts in furtherance of the

conspiracy were alleged. Count VII, submitted to the jury

and hereafter referred to as Count II, charged that “[o]n

or about December 27, 1976 . . . Gerrold E. Stevens and

William R. Deal did knowingly and willfully travel inter-

state from Kansas to Las Vegas, Nevada, with the intent

6

to promote a conspiracy to distribute heroin in violation

of 21 U.S.C. §846 and thereafter did promote or attempt

to promote said unlawful activity, in violation of 18 U.S.C.

$1952.” (R.,Vol.I,1.)

On March 15, 1977, the defendant filed motions to dis-

miss the indictment on the grounds that it did not allege

a public offense and that it was obtained by use of illegally

seized evidence. (R.,Vol.I,7,10.) The defendant also filed

a motion to suppress “any and all conversations that were

recorded, transcribed, overheard, or invaded as a result of

the District Court’s of Wyandotte County Order allowing

eavesdropping or interception herein and for a further

Order suppressing any and all information, leads, or inter-

ceptions that result as a consequence thereto. . .” (R.,Vol.

1,16.) The government countered with a motion for a

ruling in advance of trial as to the admissibility of testi-

mony of a co-conspirator, William Deal, against the defen-

dant. (R.,Vol.II,3.) Deal had been charged as a co-con-

spirator with Stevens but subsequently pleaded guilty and

gave a lengthy statement to the government. (R.,Vol.I,

109.) The goveriment wished to introduce the substance

of the information contained in that statement by calling

Deal to the witness stand. On June 13, 1977, the trial

court sustained the motion to suppress filed by the defen-

dant and then conducted a hearing as to whether Deal’s

testimony could be used against the defendant. (R.,Vol.II.

3.) The trial court ultimately denied the motion to dis-

miss (R.,Vol.I,75.) and permitted Deal to testify. (R.,Vol.

III,8.) Trial was held on August 23-24, 1977, and resulted

in the conviction of the defendant on August 25, 1977.

(R.,Vol.I,80.) Thereafter, the defendant filed a motion

for a new trial and renewed his motion to dismiss the in-

dictment, both of which were overruled by the trial court.

(R.,Vol.I,81,85.) On October 11, 1977, the trial court sen-

7

tenced the defendant to concurrent sentences of ten years

on Count I and five years on Count II. A notice of appeal

was filed on October 18, 1977. (R:,Vol.I,94.)

At the pretrial hearing on June 13, 1977, the govern-

ment offered testimony from three witnesses in support

of its contentions that the testimony of Deal was obtained

from a source independent of the illegal wiretaps and that

the causal connection between the wiretap evidence and

Deal’s testimony was so attenuated as to dissipate the taint.

John M. Hinkle, special agent with the federal Drug En-

forcement Administration, explained that “a potential in-

formant came to our office” in July of 1976 and “gave

me several names of individuals that he knew were selling

heroin in the Kansas City metropolitan area.” One was

that of William Deal. (R.,Vol.II,6.) Later, during the

first week of November, 1976, officers of the Overland Park

Police Department and the Kansas Bureau of Investigation

mentioned the name of William Deal to Hinkle as a heroin

dealer. (R.,Vol.II,9.) Thereafter, on November 30, 1976,

the first of two wiretaps was instituted in an attempt to

obtain evidence of Deal’s illegal activity, according to

Hinkle. (R.,Vol.II,14.) The procedure followed in obtain-

ing authorization to make the taps from a Kansas district

court judge was found by the trial court to have been

defective in both ir-tances. (R.,Vol.I,75, Vol.II,3.) The

second witness was David LeQuire, an Overland Park

police detective, who testified that Deal’s name had been

mentioned by a “confidential source” (R.,Vol.II,26.) but

that the police department’s evidence of that was limited

to surveillance of one George Hoobler, who visited Deal’s

residence on two occasions on September 17, 1976. (R.,Vol.

I1,24,27.) Finally, Larry J. Sigler, of the Kansas Bureau

of Investigation, testified that in the course of his under-

cover purchase of drugs, Deal’s name had been mentioned.

(R.,Vol.I1,32.) However, Sigler did not attempt to obtain

any type of search warrant or attempt to search Deal’s

residence. (R.,Vol.II,6.)

After the trial court found the testimony of Deal

admissible, the case proceeded to trial. The first and

primary witness called by the government was Deal. Deal

testified as to his gradually increasing involvement in

narcotics dealing after his release on parole from the

Leavenworth Penitentiary in May of 1974. (R.,Vol.II,18-

27.) Deal eventually accumulated the sum of $50,000, of

which he used $30,000 to purchase, in late November, 1976,

a one-half interest in a retail store operated by the defen-

dant Stevens. (R.,Vol.II,28-30.) . Thereafter, according to

Deal, he and Stevens changed their agreement such that

Deal gave Stevens a one-half interest in the retail store

and a related fencing and heroin business operated out

of the store. (R.,Vol.II,31.)

According to Deal, business was good and in late

December, 1976, he and the defendant flew from Kansas

City International Airport to Las Vegas “for fun.” (R.,Vol.

ITI,35,70.) The government substantiated that with testi-

mony from a TWA official to the effect that two individ-

uals had flown from Kansas City to Las Vegas on Decem-

ber 27, 1976. (R.,Vol.III,112-114.) The tickets were issued

in the names of “Mrs. William Deal” and “Mr. J. Stevens.”

(R.,Vol.IIT,115.) Deal testified that he bought the tickets

for the trip and that both he and the defendant took

girl friends along. (R.,Vol.III,36.) According to Deal, an

additional purpose of the trip was to meet one George

Childress, a Los Angeles heroin supplier with whom they

had been dealing. Deal testified that they wished to dis-

cuss a large buy. (R.,Vol.III,35-36.) Prior to flying to

Las Vegas, Deal and Childress agreed that Childress would

meet them in Las Vegas. (R.,Vol.III,35-36.) However,

Childress did not do so and instead invited Deal and the

9

defendant Stevens, in a phone conversation with Deal, to

come to his home in Los Angeles. They did not do so,

but returned to Kansas City. (R.,Vol.I1I,37,71.) The defen-

dant Stevens, according to Deal, never talked to Childress

or met him. (R.,Vol.III,71-72.)

Childress also testified. He traced the course of deal-

ings by which Deal initiated his drug business (R.,Vol.IT],

126-131.) and said that in December, 1976, Deal asked that

he come to Kansas City to discuss a large shipment of

drugs. (R.,Vol.III,132.) Childress did not do so but made

arrangements with Deal to meet him in Las Vegas to

discuss the matter. (R.,Vol.III,133-134.) Childress, how-

ever, did not go to Las Vegas. (R.,Vol.ITI,134.)

In sum, while the government’s evidence did show

that Deal contacted Childress while he was in Las Vegas,

it did not indicate that they discussed any specifics of a

drug deal. (R.,Vol.I11,135.) Rather, the conversation was

‘confined to discussion of why Childress was unable to

come to Las Vegas and then an invitation by Childress

that Deal and the defendant come to Los Angeles. (R.,Vol.

III,37. )

10

REASONS FOR GRANTING THE WRIT

A. The Opinion of the United States Court of Appeals

for the Tenth Circuit Is in Conflict With Opinions

of Other Circuits, Completely Overlooks the Pro-

hibitions Contained in Title III and Additionally

Misconstrues and Repudiates Decisions of This

Honorable Court.

The decision of the United States Court of Appeals

for the Tenth Circuit contradicts decisions of three circutis

decided under the requirements of United States v. Cec-

colini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).

See United States v. Rubalcava-Montoya, 597 F.2d 137 (8th

Cir. 1979) (testimony of witnesses arrested as a direct re-

sult of illegal search excluded); United States v. Scios, 590

F.2d 956 (D.C. Cir. 1978) (testimony given by witness ar-

rested as a result of illegal search and who testified under

threat of a contempt order was properly suppressed) ;

United States v. Cruz, 581 F.2d 535 (5th Cir. 1978) (wit-

nesses detained until trial as the result of illegal stop of

automobile should not have been permitted to testify).

In reviewing the United States Court of Appeals’ Opin-

ion herein, without intention to be blasphemous, I find

several areas based on the judicial findings of the trial

court that were affirmed by the circuit that if we are to

utilize same with existing precedent it becomes impossible

to reconcile.

In reviewing pages 4, 5 and 6 of the circuit’s Opin-

ion, we note the circuit found, as did the trial court,

that the petitioner and the witness Deal, whose testimony

the petitioner sought to suppress were both subjected to

illegal wiretapping that ultimately caused and was solely

responsible for the witness Deal’s arrest. The trial court

finding that the wiretaps were illegal. Deal thereafter

11

testified against the petitioner, over the petitioner’s objec-

tion, his testimony being admissible because of the trial

court’s findings, along with the circuit’s findings, that

Deal’s testimony became “attenuated”. Nardone v. United

States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The

basis for Deal’s testimony developing attenuation may be

viewed in the circuit’s Opinion (A. 8-9), “Deal’s tes-

timony came to pass independently of the illegal wiretaps

and in addition was forthcoming to change his life-style

and stay out of trouble.” The difficulty in reconciling the

circuit’s wisdom thereafter immediately comes to pass

from the circuit’s findings that Deal’s arrest was a direct

result of the illegal wiretaps, being responsible for his

arrest, same happening on January 7, 1977. His revelations

only coming to light after official inducement, however,

the record further reflects that Deal testified during the

course of the trial that he may well not have made any

revelations to tix authorities absent “DEALS’S DEAL”.

(R.,Vol.III,80.) Further, the authorities readily acknowl-

edged absent the wiretaps that they did not possess probable

cause to arrest or have a prosecutable case against the wit-

ness Deal, nor would the witness give the officers any in-

formation until after “DEAL’S DEAL” was consummated.

(R.,Vol.II,6-32.) In addition, the full extent of Deal’s

blessings may be viewed in Volume III of the record, page

43, commencing at line 15. Thereafter, the circuit’s Opin-

ion divorces itself from the circuit’s own findings and

in support of the attenuation sought herein advances a

new legal tenet, the “MAYBE TEST”, which is readily

viewed in the circuit’s Opinion, as follows:

The authorities “MAYBE” could have developed a

good case against Deal. (A. 9)

Deal maybe knew the authorities could have devel-

oped a good case against him. (A. 9)

12

The witness Etter, during the defendant’s trial, re-

flected Deal was his source of heroin, however the

first knowledge that the authorities had in this regard

was Etter’s statement provided to Hinkle in April,

1977. (R.,Vol.II,9.) However, “MAYBE” the author-

ities anticipated this four months belated piece of in-

formation. Deal could have challenged the wiretaps,

however he did not. “MAYBE” this is supportive

of his desire to change his life style, of if we are to

apply our new legal tenet, “MAYBE” his waiver was

the result of INCOMPETENCE, which from the trial

court’s findings readily appears to be the case, (A. 8-9)

Last but not least “MAYBE DEAL’S FOR DEAL”,

so determined by this Circuit to be the result of exten-

sive plea bargaining, brought about Deal’s desire to

change his life style and stay out of trouble. But,

just “MAYBE” the Circuit’s analysis in this regard is

without foundation in the record. (See in particular

R., Vol. III,80. )

In further review of the record herein, along with

the issues raised by the petitioner, we note that the peti-

tioner’s objection to Deal’s testimony was a two-edged

objection, but one of the edges was broached in the cir-

cuit’s Opinion. The Opinion is totally void as to the peti-

tioner’s position that Deal’s testimony was additionally

inadmissible as the witness’s testimony was further ex-

cluded as the exclusion is mandated by statute, 18 U.S.C.

2515, 18 U.S.C. 2518(10) (a). The availability of the sup-

pression remedy for a violation of the statutory scheme

of Title III, as distinguished from constitutional violations,

turns on the provisions of the act itself rather than on

the judicially fashioned exclusionary rule aimed at de-

terring violations of the Fourth Amendment. United

States v. Giordano, 416 U.S. 505, 40 L.Ed.2d 341; Gelbard

v. United States, 408 U.S. 41, 33 L.Ed.2d 179. The eaves-

13

dropping orders found wanting herein were issued by the

District Court of Wyandotte County, Kansas, pursuant to

K.S.A. 22-2514, the applications made in relation thereto

being clearly unauthorized. In re Olander, 213 Kan. 282,

515 P.2d 1211 (1973), my work product. In addition,

the Kansas courts hold that for violations of the statutory

scheme allowing eavesdropping, suppression turns on the

act itself rather than on the exclusionary rule. State v.

Dowdy, 222 Kan. 118, 125, 563 P.2d 425 (1977).

The Opinion of the circuit entirely failed to analyze

United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55

L.Ed.2d 268 (1978), in which the circuit, in an Opinion

by Mr. Justice Rehnquist, dealt specifically with the

proper means of analyzing a claim that testimony is tainted

by a Fourth Amendment violation. In that case, the court

specified the factors that must be considered in deter-

mining whether to exclude the testimony of a witness

because of a Fourth Amendment violation. In the words

of the Fifth Circuit en banc:

[Ijf a witness is located as a result of a search un-

constitutional under the Fourth Amendment, the ad-

missibility of the witness’s testimony depends upon

a balancing test; the Court should consider: (1) the

degree of free will exercised by the witness in testi-

fying (because the greater the willingness of the wit-

ness to testify freely, the greater the likelihood that

he would have been discovered by legal means and,

consequently, the smaller the incentive to the police

to conduct an illegal search to discover witnesses);

(2) the time, place and manner of the initial ques-

tioning of the witness (as indicating whether the

statements are truly the product of detached reflection

and the witness’s desire to be cooperative and whether

the illegality that led to discovery of the witness

14

played any meaningful part in the witness’s willing-

ness to testify; and (3) the relationship of the purpose

of the originally illegal search to the subject of the

testimony (because automatic exclusion would per-

petually disable a witness from testifying about rel-

evant and material facts regardless of how unrelated

these were to the purpose of the search and would be

of little deterrence to illegal searches).

United States v. Cruz, 581 F.2d 535, 543 (5th Cir. 1978).

The Opinion of the court focuses only upon the witness’s

“free will” to the total exclusion of the other elements.

The circuit’s decision contains no consideration what-

soever as to whether exclusion of the testimony would

tend to deter unconstitutional police conduct. In this

case, the record reflects that law enforcement officers

had heard informants name William Deal, the witness

in question, as a heroin dealer but had no evidence against

him sufficient to form probable cause to either arrest him

or search his premises. Rather, Deal was arrested as a

direct result of information acquired by illegal wiretaps.

The effect of this circuit’s decision is to condone any

illegal arrest based upon illegal wiretaps for the purpose

of convicting an alleged co-conspirator. Such a result is

entirely inconsistent with the policy of deterrence under-

lying the exclusionary rule.

The circuit’s decision also fails to give sufficient con-

sideration to the time, place and manner of the initial

questioning of the witness to determine whether Deal’s

statement was a product of detached reflection in his desire

to be cooperative and whether the illegal wiretaps played

any meaningful part in Deal’s willingness to testify. The

record reflects that Deal did not agree to testify until a

month after his arrest, and after the plea bargain had

been struck with the government. Deal refused to provide

15

any information until after that plea bargain had been

made, and would not have talked had there not been a

plea bargain. The facts of this case are therefore quite

dissimilar to those of Wong Sun v. United States, 371 U.S.

471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), in which the court

permitted the statement of a co-defendant who had been

illegally arrested without probable cause but had made

the statement after being released on his own recognizance

and returning voluntarily several days later. To the con-

trary, the facts of this case are much more similar to

the circumstances surrounding a statement given by the

other defendant in Wong Sun v. United States. That

defendant made a statement shortly after his illegal arrest,

while a number of police agents were in his direct presence.

The court said that it could not reasonably be determined

that the defendant’s response to the interrogation “was

sufficiently an act of free will to purge the primary taint”

of the illegal arrest. 371 U.S. at 486. In that regard,

the petitioner wishes to remind the court that in United

States v. Ceccolini this Honorable Court stated that the

statements must be “truly the product of detached reflec-

tion and a desire to be cooperative on the part of the

witness”. 98 S.Ct. at 1060. Moreover, the illegality must

not play any “meaingful part” in the witness’s willingness

to testify. Id. There is no evidence in the record to

rebut “the logical inference ... that the incriminating

‘evidence’ discovered in the course of the illegal search

was used to persuade .. . [the] witness . . . to testify.”

United States v. Rubalcava-Montoya, 597 F.2d 137 (8th

Cir. 1979).

The circuit’s Opinion also fails to analyze the degree

of free will exercised by the witness. United States v.

Ceccolini requires that the decision of the witness to tes-

tify be not coerced or induced by the consequences of the

illegal search. United States v. Rubalcava-Montoya, supra;

16

United States v. Scios, 590 F.2d 956 (D.C. Cir. 1978). The

circumstances of this case hardly indicate that Deal agreed

to testify out of his own free will. As the circuit’s Opinion

admits, the testimony came as part of a plea bargain. (Slip

Op. at 5.) Contrary to the assertions of the circuit, an

agreement to testify as part of a plea bargain by which

the witness avoids a more severe charge and potentially

more severe sentence is little different from the possibility

of a contempt citation upon which suppression was ordered

in United States v. Scios. The circuit’s holding cannot be

reconciled with its findings that Deal’s arrest was a direct

result of the illegal wiretaps. Deal’s testimony came to

pass only after direct official inducement and Deal him-

self admitted during the course of the trial that he would

not have testified absent “DEAL’S DEAL”.

The circuit’s Opinion also entirely fails to mention or

discuss 18 U.S.C. §2515 and 18 U.S.C. §2518(10). Those

statutes, taken together, require a federal court to exclude

any evidence derived from an illegal wiretap, which the

circuit found that both Deal, along with “DEAL’S DEAL”

were the result of the wiretap suppressed herein. From

these findings, if none other, Deal’s testimony should have

been suppressed. United States v. Giordano, 416 U.S. 505,

528, 529, 94 S.Ct. 1820, 40 L.Ed.2d 341; Gelbard v. United

States, 408 U.S. 41, 58, 92 S.Ct. 2357, 33 L.Ed.2d 179. Al-

though the legislative history reflects no congressional

intent to broaden the rule reflected in Wong Sun v. United

States; Nardone v. United States, 308 U.S. 341, 60 S.Ct.

266, 84 L.Ed. 307 (1939), and Silverthorne Lumber Co.

v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319

(1920), it does reflect legislative recognition of the validity

of the policy upon which the exclusionary rule is based—

deterrence of illegal police conduct. In this instance, the

circuit did not even consider the motives of the officers

involved in the illegal wiretaps, a factor that is particularly

17

relevant to the required analysis. See United States v.

Ceccolini, supra, and Scott v. United States, 436 U.S. 128,

98 S.Ct. 1717, 1724 n.13, 56 L.Ed.2d 168 (1978). The cir-

cuit also failed to consider the effect of its decision upon

illegal police conduct. That effect is clearly to condone

an illegal search that results in coerced testimony from an

unwilling witness. Such a result is directly contrary to

the policy underlying the exclusionary rule, along with

repealing by implication the provisions of 18 U.S.C. 2515

and 18 U.S.C. 2518(10) (a) and the further repudiation of

the wisdoms viewed in both Giordano and Gelbard.

B. The Court’s Opinion Further Takes Exception to

Existing Precedent That the Indictment Must

Plead the Elements of the Substantive Offense to

State a Public Offense.

In reviewing the circuit’s Opinion, pages 6, 7 and 8,

we note the substantive offense relied on in both Count I

and Count VII (II) in support of the alleged conspiracy

in violation of 21 U.S.C. 846 is a violation of 21 U.S.C.

841(a) (1), the distribution of heroin, a Schedule I con-

trolled substance. The elements of the substantive offense

in both counts being intentional and knowing distribution.

In both counts we note a complete void as to the required

elements of the underlying offense . The circuit concluded

in its Opinion (A 7,8), that by virtue of the fact the

charging portion of the conspiracy allegation in each count

alleged the conspiracy came to pass willfully and knowingly

in violation of 21 U.S.C. 846, which clearly does not require

the elements required for a violation of 21 U.S.C. 841(a)

(1), that to allege the elements of the underlying offense

would amount to surplusage. The court further relies on

Rule 52(a) to further reject the petitioner’s argument.

This reasoning had on two occasions previously been ruled

on by the United States Court of Appeals for the Tenth

18

Circuit, and the circuit, noting the wisdoms of this Honor-

able Court in Dennis v. United States, 384 U.S. 855, 86

S.Ct. 1840, 16 L.Ed.2d 973 (1966), rejected same in both

instances. The circuit’s reasoning being “‘there is no magic

to the words used to allege guilty knowledge.” Nelson v.

United States, 406 F.2d 1136, 1138 (10th Cir. 1969); Robin-

son v. United States, 263 F.2d 911, 912 (10th Cir. 1959).

In addition, Count VII (II) is also defective for another

reason. It contains no allegations of the overt acts upon

which the conspiracy charge is based. The petitioner rec-

ognizes that the Tenth Circuit held, in United States v.

King, 521 F.2d 61 (10th Cir. 1975), that an indictment under

only Section 846 need not allege the overt acts that the

government intends to use to establish a conspiracy. How-

ever, the indictment in this case is not based upon Section

846 standing by itself but rather the government uses that

section as a bootstrap for a Travel Act charge. It can

prove a violation only by showing that the petitioner trav-

eled in interstate commerce to promote some “unlawful

activity”. In this case the government contends the activ-

ity was a Section 846 conspiracy to distribute drugs. That

conspiracy could be “unlawful” only if it had been com-

pleted prior to the trip by an overt act in furtherance of

the agreement. Carlson v. United States, 187 F.2d 366

(10th Cir. 1951), cert. denied, 341 U.S. 940, 71 S.Ct. 1000,

95 L.Ed. 1367 (1951).

“The gist of the offense of a conspiracy is an agree-

ment among the conspirators to commit an offense, at-

tended by an overt act by one or more of the conspirators

to effect the object of the conspiracy.” Hudspeth v.

McDonald, 120 F.2d 962, 965 (10th Cir. 1941), cert. denied,

314 U.S. 617, 62 S.Ct. 110, 86 L.Ed. 496 (1941). See also

United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85

L.Ed. 128 (1940); Hyde v. United States, 225 U.S. 347,

32 S.Ct. 793, 56 L.Ed. 1114 (1911).

19

In sum, the “conspiracy” under Section 846 is not

unlawful absent an overt act. The United States Court

of Appeals for the Tenth Circuit recognized in United

States v. King by reversing a conviction in which the jury

was not told that the government must prove an overt

act. “Conspiracy is not punishable as a state of mind and

becomes punishable only if completed by an overt act by

one or more of the conspirators.” 521 F.2d at 63. Thus,

an indictment, such as this, that contains no indication

of overt acts in furtherance of a conspiracy committed

prior to the alleged interstate travel does not state a public

offense because it does not allege that the travel pro-

moted “unlawful activity”. The trial court attempted to

correct that mistake by instructing the jury that the

government must first prove a conspiracy furthered by

one or more overt acts. It relied in its instructions upon

the same overt acts alleged in Count I. (R.,Vol.VI,271.)

However, amendment of the indictment in such a manner

is not permitted (Joplin Mercantile Co. v. United States,

236 U.S. 531, 531 S.Ct. 549, 59 L.Ed. 705 (1914)) and

Count VII (II) should therefore also be dismissed because

it does not contain an allegation that the interstate travel

promoted unlawful activity.

C. The Court’s Opinion Additionally Denies Decisions

of This Court That Require a Violation of the

Travel Act, 18 U.S.C. §1952, That the Interstate

Travel Must Be More Than ‘Minimal and Inci-

dental’’.

Specifically, the petitioner submits that the record,

even when viewed in a light most favorable to the gov-

ernment, does not contain sufficient substantial evidence

to support a jury verdict of guilty beyond a reasonable

doubt. See United States v. Guerrero, 517 F.2d 528 (10th

Cir. 1975).

20

The elements of proof under the Travel Act are well

“established. ‘In order to mount a successful prosecution

under those portions of the travel act applicable here,

the following elements must be proved: (1) that an

accused voluntarily used the facilities of interstate com-

merce; (2) that the accused attempted to or did in fact

promote, manage, establish, carry on or facilitate the pro-

motion, management, establishment or carrying on of any

of certain statutorily defined activities; and (3) that the

accused formed a specific intent to promote, manage, estab-

lish, carry on or facilitate one of the prohibited activities.”

United States v. Gibson Specialty Company, 507 F.2d 446,

449 (9th Cir. 1974). See also United States v. Villano,

529 F.2d 1046 (10th Cir. 1976), cert. denied, 426 U.S. 953,

96 S.Ct. 3180 (1976); United States v. Prince, 529 F.2d 1108

(6th Cir. 1976); Spinelli v. United States, 382 F.2d 871

(8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89

S.Ct. 584, 21 L.Ed.2d 637 (1969). Thus, a conviction under

the Travel Act can be upheld only if there is evidence

of each of those three elements. Evidence as to only

one or two will not suffice. ‘“[T]he scope of the act,

although broad indeed, is not unlimited.” United States

v. Gibson Specialty Company, supra. “Congress, by pass-

ing 18 U.S.C. §1952, did not intend to make every con-

ceivable crime that occurs at a motel or hotel into a

federal offense punishable in the federal courts.” United

States v. Brouillette, 478 F.2d 1171, 1178 (5th Cir. 1973).

The indictment charged a Travel Act violation only

for a trip taken by the defendant to Las Vegas in late

December, 1976. Concededly, the record contains evidence

of various other incidents in interstate commerce that

could constitute Travel Act violations. However, as to

this particular trip the prosecution failed to prove that

the defendant traveled interstate with the intent to facil-

itate or promote unlawful activity and that any acts that

21

he engaged in immediately after such trip did im fact

facilitate or promote unlawful activity. ‘Therefore, any

any conviction for a Travel Act violation must of necessity

have been based upon activity not charged in the indict-

ment. And, under the well-settled rule, a defendant may

not be convicted on the basis of an action not charged

in the indictment. United States v. Lynn, 461 F.2d 759

(10th Cir. 1972).

As this court has specifically noted, Congress in en-

acting Section 1952 did not intend to “transform relevantly

minor state offenses into federal felonies.” Rewis v. United

States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d

493 (1971). Thus, the plain language of Section 1952

requires that the activity in question violates the law of

the jurisdiction in which it occurs. United States v.

Zemater, 501 F.2d 540 (7th Cir. 1974). Moreover, the act

that forms the conduct in furtherance of an illegal activity

must occur after rather than before the interstate travel.

United States v. Zemater, supra; United States v. Villano,

529 F.2d 1046 (10th Cir. 1976), cert. denied, 426 U.S. 953,

96 S.Ct. 3180 (1976). Finally, the prosecution must prove

intent to use interstate commerce to facilitate some un-

lawful activity. United States v. Gibson Specialty Com-

pany, 507 F.2d 446 (9th Cir. 1974). The uncontradicted

evidence in the record that the purpose of the Las Vegas

trip was pleasure does not support a conviction under

those standards.

The evidence discloses that the trip to Las Vegas was,

at most, tenuously incidental to any unlawful activity

in which the defendant was engaged. The purpose of

the trip was, as was just noted, pleasure. The defendant

took his girl friend and fully intended to spend an enjoy-

able few days on vacation. The Las Vegas trip therefore

falls within the rule that when the use of an interstate

22

facility is “a matter of happenstance” and “minimal and

incidental” to the operation, no Section 1952 crime has

kwen committed. United States v. McCormick, 442 F.2d

316, 318 (7th Cir. 1971). See also United States v. Isaacs,

493 F.2d 1124 (7th Cir. 1974), cert. denied, 417 U.S. 976,

94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v.

Altobella, 442 F.2d 310 (7th Cir. 1971).

The circuit correctly noted that an overt act performed

after travel in interstate commerce is required to support

a conviction under the Travel Act, 18 U.S.C. 1952. The

sole basis upon which the conviction in this case rests is

a single telephone call made by the co-defendant, the same

William Deal who testified against the defendant. (Slip

Op. at 9.) That telephone call in no way furthered the

alleged drug-buying scheme. See United States v. Botti-

cello, 422 F.2d 832 (2nd Cir. 1970); United States v. Haw-

thorne, 356 F.2d 740 (4th Cir. 1966), cert. denied, 384 U.S.

908, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966).

CONCLUSION

To affirm the petitioner’s conviction herein on the

basis of the witness Deal’s testimony, it necessitates more

than the United States Court of Appeals for the Tenth

Circuit’s new legal tenet, the “MAYBE” TEST”, to find

the witness Deal’s testimony became attenuated, it further

requires that the court deny the existence of ‘“DEAL’S

DEAL” and the uncontroverted evidence that Deal’s rev-

elations only came into being after official inducement,

along with the sanctioning of the complete void, as to

the prohibitions found within Title III for interceptions

obtained in violation of the Act, found within the circuit’s

Opinion.

eee a we

23

Further, if equal application of the law still serves as

the cornerstone of Due Process, then the facts viewed

herein most assuredly merit this Honorable Court’s atten-

tion, as the circuit not only denies or avoids this court’s

fiat, it attempts to apply its own teachings divisibly.

Very respectfully submitted,

JoHN C. HUMPAGE

HUMPAGE, BERGER AND HOFFMAN

314 West Seventh Street

Topeka, Kansas 66603

Phone: (913) 235-5351

Attorneys for Petitioner

oo

a es ©

Al

APPENDIX

APPENDIX A

(Filed November 15, 1979)

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 77-1937

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

GERROLD E. STEVENS,

Defendant-Appellant.

Appeal From the United States District Court

For the District of Kansas

(D.C. 77-20025-01)

John C. Humpage, Topeka, Kansas, for Defendant-

Appellant.

Roger M. Theis, Assistant United States Attorney, (James

P. Buchele, United States Attorney, and Bruce E. Miller,

Assistant United States Attorney, with him on the briefs),

Topeka, Kansas, for Plaintiff-Appellee.

Before SETH, Chief Judge, HOLLOWAY and LOGAN,

Circuit Judges.

LOGAN, Circuit Judge.

Appellant Gerrold E. Stevens was convicted by a jury

on charges of conspiracy to distribute heroin, a controlled

A2

substance, and interstate travel to promote a conspiracy

to distribute heroin, in violation of 21 U.S.C. §§ 841(a) (1),

846 and 18 U.S.C. § 1952.

On appeal numerous errors are asserted—1) testimony

of co-conspirator William Deal was tainted by an illegal

wiretap and should not have been admitted; 2) the indict-

ment should have been dismissed for failure to charge a

public offense; 3) the prosecution failed to prove a travel

act violation; 4) the content of the indictment varied from

the proof offered at trial on the travel act count; and

5) the sentences imposed were illegal because the counts

and proof showed a single conspiracy.

Evidence admitted at trial showed that Deal, a parolee,

moved to Kansas City, Kansas, in May 1974 and shortly

thereafter started supporting a heroin habit by shoplifting.

Stevens ran a retail store in that city which also served

as a front for a fencing operation. Deal disposed of his

shoplifted goods through Stevens. He also aided Stevens

in the pick-up and delivery of stolen property from other

shoplifters.

In 1976 Deal began acquiring heroin for resale in

Kansas City from George Childress, who lived in Los

Angeles. Deal made numerous trips to Los Angeles to

obtain heroin from Childress and later began to receive

shipments from Childress through couriers whom he would

meet at the Kansas City airport. About November 1976

Deal became an equal partner with Stevens in his store

operation. Soon thereafter the arrangement was revised

to include an equal partnership in the fencing operation

and in Deal’s heroin sales. Stevens then became aware

of Deal’s arrangement with Childress, including the price

and amounts of heroin obtained from him.

In late December 1976, Stevens, Deal, and two female

friends left for Las Vegas, paying for the trip with profits

A3

from their business. There were two purposes for the

trip—a vacation and a meeting with Childress to discuss

a possible $250,000 heroin buy. Childress did not show

up in Las Vegas, but was called at his home in Los Angeles

by Deal while he and Stevens were in Las Vegas. A few

days after Deal and Stevens returned to Kansas City,

Deal was arrested at Kansas City International Airport

immediately after taking possession of ten ounces of heroin

from a Childress courier. Stevens and six others were

subsequently arrested on related charges.

I

The events culminating in Stevens’ indictment began

as part of a Drug Enforcement Administration (DEA)

investigation in cooperation with local law enforcement

agencies in the Kansas City area. According to the record,

DEA agent John Hinkle, Overland Park police, and Kansas

Bureau of Investigation agents had information from sev-

eral different informants and undercover agents that Deal

was involved in local heroin traffic. Police agents had

made heroin buys from at least one person who claimed

his supplier was obtaining heroin from Deal, and an

informer had claimed to be present when Deal sold heroin.

But because Deal would not sell directly to persons he

did not know, police authorities believed they did not

have sufficient evidence to indict Deal.

Thereafter, wiretaps on three telephones, including

those of Deal and the business operated by Stevens, autho-

rized by a state district judge, resulted in information

leading to Deal’s arrest. These wiretaps were found to

be illegal by the federal trial judge in this case. Initially

Deal refused to cooperate with the prosecution. But after

consultation with his attorney and a plea bargain had

been agreed upon, and more than a month following his

arrest, Deal made statements implicating Stevens and

A4

others. Under the plea bargain the possession of heroin

charge against Deal was dropped, he pleaded guilty to

the conspiracy charge and was assured of a sentence not

longer than five years.

Ruling upon a pretrial motion to exclude Deal’s pro-

posed testimony against Stevens, the court held it was

admissible

on the ground that Deal’s identity and his illegal

narcotics dealings were known to law enforcement

officers prior to the illegal wiretaps and further, and

of even greater significance, Deal’s statement to law

enforcement officers and his decision to plead guilty

and to testify against his co-defendants were wholly

independence of the illegal wiretaps.

That ruling is challenged on appeal on the ground that

Deal’s testimony implicating Stevens was “fruit of the

poisonous tree.””’ We must therefore determine whether

Deal’s testimony is sufficiently attenuated from the ex-

ploitation of the illegal wiretaps to be purged of taint.

The present case is similar to Wong Sun v. United

States, 371 U.S. 471 (1963), and our decision in United

States v. Beasley, 485 F.2d 60 (10th Cir. 1973), cert.

denied, 416 U.S. 941 (1974). In Wong Sun the statement

of a person unlawfully arrested who had been released

and had returned voluntarily several days later to make

the statement, was held to be admissible. “The connec-

tion between the arrest and the statement had ‘become

so attenuated as to dissipate the taint.’” 371 U.S. at 491.

In Beasley an accessory who had been arrested illegally

testified against the defendants, apparently from a desire

to help herself. This Circuit held the statement could be

found to be voluntary and sufficiently attenuated from

her illegal arrest.

AS

Her decision to testify came some three days after

the arrest, and this time separation, together with

the other circumstances, creates a high degree of prob-

ability that she exercised her own volition which leads

us to conclude that there was no exploitation of the

illegal arrest.

485 F.2d at 64 (footnote omitted ).

The circumstances of the present case indicate suffi-

cient voluntariness. To be sure the testimony came as

part of a plea bargain, but that does not diminish the

volition of coming forward. See United States v. Hoff-

man, 385 F.2d 501 (7th Cir. 1967), cert. denied, 390 US.

1031 (1968); United States v. Beasley, 485 F.2d 60 (10th

Cir. 1973), cert. denied, 416 U.S. 941 (1974). Cf. Borden-

kircher v. Hayes, 434 U.S. 357 (1978) (threatening a de-

fendant with greater punishment if he refuses to plead

guilty to a lesser charge does not violate due process);

United States v. Crouch, 528 F.2d 625 (7th Cir.), cert.

denied, 429 U.S. 900 (1976) (testifying under immunity).

Even though the authorities believed they did not have

a case sufficient for prosecution at the time of the illegal

wiretaps, it is possible they could have developed a good

case against Deal independent of the wiretaps, and he

could have been well aware of this possibility. A govern-

ment agent had made a purchase of heroin from James

Etter, who testified at trial that Deal was his supply source.

Also, it is significant that the witness and some of the

information he provided was known through independent

sources. See United States v. Crouch, 528 U.S, 625 (7th

Cir.), cert. denied, 429 U.S. 900 (1976). Personal testimony

from a witness is more likely to be free of the taint

of illegality than documents or objects obtained as a result

of an unlawful search or interception. See United States

v. Ceccolini, 435 U.S. 268 (1978).

A6

The court in United States v. Scios, 590 F.2d 956,

960 (D.C. Cir. 1978) declared that, “for an act of free

will to operate as a dissipation of taint, it must occur

in circumstances devoid of coercion.” See also United

States v. Houltin, 566 F.2d 1027, 1034 (5th Cir.), cert.

denied. ........ U.S. ........ (1978) (J. Wisdom, dissenting).

But Scios and Houltin involved testimony of persons who

faced contempt citations if they did not testify. The instant

situation is clearly distinguishable. Deal was entitled to

raise the defense of the illegality of the wiretaps and

the inadmissibility of evidence resulting therefrom in the

case against him. But he offered to testify; his statement

declared this decision was in part motivated by a desire

“to change his life-style and stay out of trouble.”

We hold the trial court properly admitted the testi-

mony of William Deal.

II

We turn next to the issue whether the indictment

should have been dismissed for failure to state a public

offense. The crux of Stevens’ argument is that the con-

spiracy charge failed to allege he conspired “willfully and

intentionally to distribute heroin,” and that the travel act

charge did not allege “the purpose of the conspiracy was

to knowingly and intentionally distribute heroin.” We

believe a normal reading of the charges involved in the

instant case’ conveys the understanding that the distribu-

1. The conspiracy charge alleged Stevens “wilfully and

knowingly did combine, conspire, confederate and agree together

and with other persons to the grand jurors unnamed or unknown,

to distribute heroin, a schedule I controlled substance.” The

travel act charge alleged he “did knowingly and wilfully travel

interstate from Kansas to Las Vegas, Nevada, with the intent to

promote a conspiracy to distribute heroin in violation of 21 U.S.C.

846 and thereafter did promote or attempt to promote said un-

lawful activity, in violation of 18 U.S.C. 1952.”

A7

tion of heroin in each count, as well as the primary act

of conspiring or traveling with intention to further an

unlawful act, had to have been done “willfully and know-

ingly.” Repeating those words twice in a single sentence

would be mere surplusage.

Generally, every required mental element must be

alleged. See, e.g., Nelson v. United States, 406 F.2d 1136

(10th Cir. 1969) (alleging defendant knowingly conspired

to cause altered securities to be transported not sufficient

when offense also includes element of fraudulent intent) ;

Robinson v. United States, 263 F.2d 911 (10th Cir. 1959)

(alleging knowingly conspired to sell drugs not sufficient

when offense also includes element of known to be im-

ported contrary to law). When the same mental element

is required for each act, however, an initial recital of

that element is sufficient. |

Convictions should not be reversed for minor, technical

irregularities that do not prejudice the accused. Russell

v. United States, 369 U.S. 749, 763 (1962). See Fed. R.

Crim. P. 52(a). The travel act charge wording is sim-

ilar to that approved in United States v. Levine, 457 F.2d

1186 (10th Cir. 1972), in which we held it is enough if

the count substantially follows the wording of the statute

and outlines the elements of the offense and the charges

the accused must meet. The indictment here contained

a substantially accurate statement of the law and outlined

the elements of the offenses charged. We find it ade-

quately warned Stevens of the charges he had to meet.

Appellant’s argument that no overt act was charged

in the travel act count does not impress us. Overt acts

are alleged and were proved in connection with the con-

spiracy count. We do not think it is necessary to real-

lege overt acts with respect to the conspiracy in the travel

act count, which fairly meets the standard set forth in

A8&

Levine. See United States v. King, 521 F.2d 61 (10th

Cir, 1975); United States v. Levine, 457 F.2d at 1188 n.1.

We find no fatal defects in the indictment.

III

Did the prosecution prove a travel act violation? The

elements of such a violation under 18 U.S.C. § 1952(a) (3)

are as follows: 1) use of facilities of interstate commerce,

2) with intent to promote, manage, establish, carry on

or facilitate any unlawful activity, and 3) performance

of or an attempt to perform that unlawful act.

There was sufficient evidence to support the verdict

on this charge. Deal and Stevens flew from Kansas City

to Las Vegas via commercial airline. A reason for the

trip was a prearranged meeting with Childress to try to

obtain a good price on a large heroin buy. That the

trip was for a vacation as well as for purposes of further-

ing the conspiracy does not preclude conviction. United

States v. Gooding, 473 F.2d 425 (5th Cir.), cert. denied,

412 U.S. 928 (1973).

The third element requires for conviction an overt

act in furtherance of the conspiracy, performed after the

travel. See United States v. Peskin, 527 F.2d 71 (7th

Cir. 1975), cert. denied, 429 U.S. 818 (1976). Childress

refused to travel to Las Vegas; both Deal and Childress

testified that Deal called him from Las Vegas to induce

him to come to that city. The evidence also shows that

when this was unsuccessful Deal and Stevens discussed

going on to Los Angeles. While the parties did not accom-

plish a heroin buy in Las Vegas, the telephone calls made

by Deal to Childress were overt acts attempting to further

the conspiracy within the meaning of the travel act and

Stevens is chargeable with those acts. See, e.g., United

States v. Peskin, supra; United States v. Marquez, 449

Sea en ne

A9

F.2d 89 (2d Cir. 1971), cert. denied, 405 U.S. 963 (1972);

United States v. Barrow, 363 F.2d 62 (3d Cir. 1966), cert.

denied, 385 U.S. 1001 (1967).

IV

Stevens makes two other arguments in his attack on

the conviction, each of which we find lacks merit. We

think the proof is sufficient to establish that the interstate

travel was from Kansas to Las Vegas, as charged, despite

the location of the Kansas City airport in Missouri. Thus,

we do not agree there is a fatal variance between the

indictment and the proof on this point.

Likewise, we see no merit in the argument that the

conspiracy count and the travel act count charge a single

crime with respect to which only a single punishment

is permissible. “It has been long and consistently recog-

nized by the Court that the commission of the substantive

offense and a conspiracy to commit it are separate and

distinct offenses.” Pinkerton v. United States, 328 U.S.

640, 643 (1946). This rule applies with full force to a

conspiracy in the travel act context. E.g., United States

v. McGowan, 423 F.2d 413 (4th Cir. 1970); United States

v. Polizzi, 500 F.2d 856 (9th Cir.), cert. denied, 419 U.S.

1120 (1974).

The judgment is affirmed.

Al0

APPENDIX B

JANUARY TERM - February 27, 1980

Before Honorable Oliver Seth, Chief Judge, Honorable Wil-

liam J. Holloway, Jr., Honorable Robert H. McWilliams,

Honorable James E. Barrett, Honorable William E. Doyle,

Honorable Monroe G. McKay, Honorable James K. Logan,

and Honorable Stephanie K. Seymour, Circuit Judges

No. 77-1937

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

GERROLD E. STEVENS,

Defendant-Appellant.

This matter comes on for consideration of the petition

for rehearing and suggestion for rehearing en banc filed

by appellant.

Upon consideration whereof, it is ordered:

1. The petition for rehearing is denied by Circuit

Judges Seth, Holloway and Logan, the members of the

panel that rendered the decision sought to be reheard.

2. The suggestion for rehearing having been trans-

mitted to the members of the panel and the judges of

the Court who are in regular active service, and no judge

in regular active service or a judge who was a member

of the pane] that rendered the decision having requested

a vote on the suggestion, the suggestion for rehearing

en banc is denied. Rule 35, Federal Rules of Appellate

Procedure.

/s/ Howard K. Phillips

Howard K. Phillips, Clerk

-

ee ee