# Petition — Basey v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1926%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 919 ## Text FILE MAR 29 {989 fi Upreme Ec, 4 i IN THE SUPREME COURT OF THE UNITE OCTOBER TERM, 1979 No. 79°1526 J. C. RAMSEY, Petitioner Vs. UNITED STATES OF AMERICA, Respondent PETITION FOR A WRIT OF CERTIORARI | TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STANLEY I. GREENBERG, A Law Corporation, Fourth Floor 10850 Wilshire Boulevard ‘Los Angeles, California 90024 (213) 474-6555 Attorney for Petitioner, J. C. RAMSEY IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 No. J. C. RAMSEY, Petitioner vs. UNITED STATES OF AMERICA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STANLEY I. GREENBERG, A Law Corporation, Fourth Floor 10850 Wilshire Boulevard Los Angeles, California 90024 (213) 474-6555 Attorney for Petitioner, J. C. RAMSEY He _ None iil TABLE OF CONTENTS TABLE OF AUTHORITIES OPINION BELOW JURISDICTION QUESTION PRESENTED STATEMENT OF THE CASE REASONS FOR GRANTING THE WRIT THE PRIMARY ILLEGALITY HAVING I. BEEN ESTABLISHED BY VIRTUE OF THE HOLDING THAT THE SEIZURE FROM WHICH THE CHALLENGED EVIDENCE FLOWED WAS UNCONSTI- TUTIONAL, AND THE PETITIONER OFFERING SPECIFIC EVIDENCE DEMONSTRATING TAINT, THE TRIAL COURT ERRED IN NOT RE- QUIRING THE GOVERNMENT TO DEMONSTRATE, BY INDEPENDENT EVIDENCE, THAT THE PROFFERED EVIDENCE WAS SUFFICIENTLY ATTENUATED AS REQUIRED BY ALDERMAN AND NARDONE, SUPRA A. The Court of Appeals Misapprehended Both the Facts and the Law in Af- firming the Conviction Once the Illegality of a Search is Established, and the Defendant Offers Specific Evidence of Taint, the Burden Shifts to the Government to De- monstrate the Absence of Taint 11 CONCLUS ION 17 APPENDIX A OPINION United States Court of Appeals For the Ninth Circuit Filed December 17, 1979 APPENDIX B ORDER United States Court of Appeals For the Ninth Circuit Filed March 10, 1980 TABLE OF AUTHORITIES Cases Alderman v. United States 394 U.S. 165; 89 S.Ct. 961 (1969) Benetti v. United States 97 F.2d 263 (9th Cir.1938) Nardone v. United States 308 U.S. 338; 60 S.Ct. 266 (1939) Silverthorne Lumber Co. v. United States 251 U.S. 385 (1920) United States v. Brock 571 F.2d 480 (9th Cir.1978) United States v. Cella 568 F.2d 1266(9th Cir.1977) United States v. Polizzi 500 F.2d 856 (9th Cir.1974), cert.den. 419 U.S. 1120, 95 §.Ct. 802, 42 L.Ed.2d 820 (1975) Wong Sun v. United States 371 U.S. 471 (1963) Statutes 18 USC §4205(b) (2) 21 USC §812 21 USC §841(a) (1) 21 USC §841(b) (1) (A) 28 USC §1254(1) 62 Stat. 928 iii Page a S$; 15, 16 13 2, 5, 14, 15, 16 13 pe! 14 14, 15 13 4 3 3 as 2 1 Rules Federal Rules of Criminal Procedure, Rule 41 3 iv Petitioner respectfully prays that a Writ of Certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Ninth Circuit affirming Petition- er's conviction, entered in the above entitled cause on December 17, 1979, for which a Petition for Rehearing was denied on March 10, 1980. OPINION BELOW The opinion of the Court of Appeals for the Ninth Circuit, not yet report- €d, appears in Appendix A hereto. 2 No opinion was rendered by the Dis- trict Court for the Central District of California. JURISDICTION The judgment of the Court of Appeals for the Ninth Circuit was entered December 17, 1979. The jur- isdiction of this Court is invoked pursuant to 62 Stat. 928, 28 USC §1254(1). 1 The order denying the petition for rehearing and rejecting the sugges- tion for rehearing en banc appears in Appendix B hereto. a QUESTION PRESENTED Whether the trial court erred in not requiring the Government to demon- strate the absence of taint as to certain challenged evidence, once the Court ruled that the seizure from which that evidence flowed was uncon- stitutional, and the Petitioner demon- strated taint with specific evidence, in clear violation of this Court's 2/ 3/ ruling in Nardone — and Alderman.=— 2 Nardone v. United States, 308 U.S. 338; 60 S.Ct. 266 (1939). Alderman v. United States, 394 U.S. 165; 89 S.Ct. 961 (1969). ao 3 STATEMENT OF THE CASE Petitioner J.C. RAMSEY was named in a two count (superseding) indictment filed on April 27, 1977, charging him in Count I with conspiracy to distri- bute and possess with intent to dis- tribute Schedule One narcotic drug controlled substances (heroin), in violation of Sections 812, 841l(a) (1), and 841(b) (1) (A) of Title 21, United States Code. Count II charged Peti- tioner and others with the substan- tive crime of distribution. Prompted by a Rule 41, Federal Rules of Criminal Procedure, motion, the issue of the legality of the search and seizure was litigated prior to trial. On October 28, 1977, after a two day hearing, the Court held the search and seizure to have been ille- gal on multiple grounds. Thereafter, counsel for RAMSEY raised a "fruit of the poisoned tree" problem with respect to two areas of evidence that the Government proposed to offer at trial. One was a Califor- nia Driver's License, which the otu Government promptly subpenaed after the first Driver's License was sup- pressed by the trial court, and the other were certain telephonic records and other evidence regarding an add- ress on Collins Avenue where RAMSEY was alleged to have resided, Although defense counsel requested that the Government establish, by independent evidence, that the source of the license and address were independent from the initial illegality [RT 9], the Court ruled the evidence admiss- ible, relying on the mere representa- tions of Government counsel, not sub- ject to cross-examination, that an independent source existed. [RT 10] Immediately thereafter, a court trial was held, in which the chal- lenged evidence was received, and Petitioner was found guilty on both counts. A judgment of conviction was entered on January 3, 1978, sentenc- ing Petitioner to serve concurrent sentences of seven years on each of two counts, with eligibility for parole pursuant to 18 USC §4205(b) (2); ~~ and, pursuant to 21 USC §841(b) (1) (A), an additional special parole term of three years. Petitioner's bond on appeal was continued. REASONS FOR GRANTING THE WRIT I THE PRIMARY ILLEGALITY HAVING BEEN ESTABLISHED BY VIRTUE OF THE HOLD- ING THAT THE SEIZURE FROM WHICH THE CHALLENGED EVIDENCE FLOWED WAS UNCONSTITUTIONAL, AND THE PETITION- ER OFFERING SPECIFIC EVIDENCE DEMON- STRATING TAINT, THE TRIAL COURT ERRED IN NOT REQUIRING THE GOVERN- MENT TO DEMONSTRATE, BY INDEPENDENT EVIDENCE, THAT THE PROFFERED EVI- DENCE WAS SUFFICIENTLY ATTENUATED AS REQUIRED BY ALDERMAN AND NARDONE, SUPRA. A. The Court of Appeals Misapprehended Both the Fa Facts and the Law in Aff- irming the Conviction. In ruling on Petitioner's appeal from the judgment of conviction, the Ninth Circuit Court of Appeals misap- prehended both the facts of the record below and the law to be applied in de- termining whether proffered evidence, claimed by Petitioner to have been tainted by the illegality of the pri- Mary seizure, is sufficiently attenu- ated from the illegality to be oS admissible. In affirming Petitioner's conviction the Court of Appeals held: "In response to inquiries by the district court, the Assistant U.S. Attorney stated that the license was obtained through nor- mal investigative techniques and that all information necessary to subpoena it was known prior to the illegal search and sei- zure. Therefore, we hold that the license was not suppressible 5/ as 'fruit of the poisonous tree.'— " Appendix A, pp.7-8. (Emphasis added. ) Footnote 5 of that opinion clearly reflects that the Court of Appeals misapprehended the state of facts in the record below. The court stated: "Ramsey now questions the dis- trict court's failure to hold a hearing on the issue of in- dependent source. However, he requested no hearing below, and the Government's representations that the source was independent were never even questioned." Appendix A, p. 8, fn.5. In fact, at the commencement of the trial, counsel for Petitioner raised the problem of taint, and clearly set forth the Petitioner's position that the Government must prove the absence =6= of that taint at a hearing by present- ing evidence, not mere representations of counsel. [RT 3-9] The record below clearly demonstra- tes that the foregoing portion of the court's decision is demonstrably wrong in two respects. First, counsel below was clearly requesting an opportunity to examine evidence on the question of taint; and, secondly, Petitioner's counsel did indeed take issue with the representations of Government counsel. The transcript reflects the following: "MR. GREENBERG: All right. The next pc_nt, Your Honor, then, I understand -- well, there are two additional points that I think could be the subject of taint, Your Honor, that were touched upon in chambers. One, I understand that the Govern- ment has subpoenaed someone from the Department of Motor Vehicles for the purpose of showing that my Client had a driver's license in the name of Charles Stein. My position on that would be, Since the information that my client had a driver's license in that name came from the testimony of Agent -- THE COURT: From the jacket, you mean. ~ = "MR. GREENBERG: From the jacket in Apartment 212, subsequent to an unlawful entry, that the Gov- ernment must show by clear and convincing evidence that the in- troduction of that evidence, the driver's license, is not tainted. The other matter relates to the two addresses, Your Honor. We have had reference to the Ap- artment 212 on Hatteras Street, and if I may direct the Court's attention now to 18366 Collins Avenue, you may recall, Your Honor, that after the officers’ entry into Apartment 212, Mr. Ramsey indicated that he did not live at the Hatteras Street add- ress, but lived around the cor- ner at the Collins address, and he gave that address to them, gave the officers the key and accompanied, I think, Officer Apostolou there, and executed a consent to search for that apartment. I now understand that the Gov- ernment intends to introduce evidence from a postman that someone named Ramsey received mail at that address and I think, once again, that the Government must show by clear and convincing evidence that there is no taint, that they didn't get leads to that evi- dence from events that took place subsequent to the unlaw- ful entry." [RT 3-5] (Emphasis added.) = i Thereafter, Government counsel did indeed make certain representations as to the Government's sources of infor- mation that allegedly lead to the challenged evidence. It should be Noted at this point that both counsel were merely attempting to frame the issues for the Court. Even Government counsel was speaking in terms of mere proffers of evidence: "MR. LEVINE: .. . I mean, the Government can esta- blish that there is an indepen- dent source for going to the Department of Motor Vehicles for any licenses in the name of Charles Stein." [RT 6] (Emphasis added.) Following representations of Gov- ernment counsel, Petitioner's counsel once again put the Court clearly on notice that: (1) Mere representations of Government counsel were not accep- table; and (2) counsel was not merely arguing the substance of the taint, but raising the procedural problem that the Government had not presented any evidence, and that Petitioner had not had an opportunity to examine it: a Du "MR. GREENBERG: .. . I think the one thing that might be significant, Your Honor, is when the Department of Motor Vehicles was subpoenaed for that driver's license. I would suggest as well, as the Court has indicated, that the same inguiry should be made about the evidence over at the Collins Street address, »ecause I think that would shed some light on it. More significantly, statements and conclusions of counsel, al- though an officer of the court, are not evidence and, the prima facie illegality having been established here, my understand- ing is that the Government must now show by independent evidence, in a clear and convincing manner, that there is no taint. So, I'm raising a procedural roblem aS well, Your Honor.” [RT 6-9] (Emphasis added.) Thus, the appellate court's conclu- Sion that there was no request for a hearing, and that Government counsel's representations were not questioned, is simply incorrect in view of the proceedings below. Petitioner's counsel addressed the court on several occasions to the effect that the bur- den was on the Government to ~10= demonstrate through "evidence" (not representations of counsel) the ab- sence of taint. Further, he clearly put the court on notice that he was raising the procedural problem that the absence of taint must be demon- Strated by evidence. That can mean nothing other than a "hearing" in which "evidence" -- as opposed to rey "esentations of counsel -- is presented. B. Once the Illegality of A Search is Established, and the Defen- dant Offers Specific Evidence of Taint, the Burden Shifts to the Government to Demonstrate the Absence of Taint. Petitioner does not take issue with the basic proposition relied upon by the Court of Appeals to the effect that the mere existence of an uncon- stitutional search does not render all evidence "sacred and inaccessible," re- lying upon United States v. Brock, 571 F.2d 480, 483 (9th Cir. 1978). However that is merely stating the obvious. The important question, which was not addressed by the appellate court, is where does the burden lie once a ati« primary illegality is established. The probable taint was easily demon- strated by focusing on the driver's license. As the trial court acknow- ledged, the license seized from a jacket during the illegal search yielded a driver's license the Govern- ment contended was. relevant. [RT 4] After it was suppressed, the Govern- ment promptly subpoenaed a new license from the Department of Motor Vehicles. The issue was clearly formed by a com- ment from the trial court: "THE COURT: What prompted you to go to the Department of Motor Vehicles is probably the crux of the issue. "MR. LEVINE: Normal investiga- tive techniques... ." (RT 6] Given the context in which the Gov- ernment sought the license subsequently received in evidence (within a matter of hours after the trial court suppres- sed the other driver's license), it simply defies the imagination to be- lieve that "normal investigative tech- niques" were responsible for receiving the second license. By definition, a}Pa since the trial was already in pro- gress and the evidence marshalled, this eleventh hour subpoena could hardly be called "normal." It dif- fers not in the slightest from prac- tices long condemned in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and Wong Sun v. United States, 371 U.S. 471 (1963). Inadmissibility must rest upon a showing of possible causal connection between the search of the proffered evidence. Benetti v. United States, 97 F.2d 263 (9th Cir. 1938). The Potential connection was clearly ob- served by the trial court. [RT 3-8] The problem is that the Government never presented evidence (as opposed to proffers of evidence) to resolve the question of taint. The error was thus both substantive and procedural. The procedural error was the failure to receive evidence to demonstrate the lack of taint, and to afford Petitioner an opportunity to examine that evidence; the substantive ques- tion was never really reached in view ot Dun of the procedural deficiency. This Court always adhered to the basic rule that once a defendant has established an unconstitutional sei- zure, the burden then shifts to the Government to demonstrate that it acquired its evidence from an inde- pendent source, and that the proffered evidence is not tainted. As the Ninth Circuit has recently stated, in United States v. Cella, 568 F.2d 1266 (9th Cir. 1977), at pp. 1284-1285: | ". . . As held by the Supreme Court and adopted by this cir- cuit, the trial court must de- termine whether the prosecution used unconstitutionally seized material directly or indirectly to develop the evidence it pro- duced at trial, or whether it obtained its trial evidence from an independent and untaint- ed source. Alderman, supra, 394 U.S. at 183, 89 S.Ct. 961; United States v. Polizzi, 500 F.20q 6560, 910 (Sth Cir. 1974), cert.denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975). Initially, the defendant who shows that he was the victim of an unconstitutional search must go forward with specific evi- dence demonstrating taint. Alderman, supra, 394 U.S. at 183, 95 S.Ct. 802; Nardone v. otia "United States, 308 U.S. 338, 341, .60 S.Ct. 266, 85 L.Ed. 307 (1939). The burden then shifts to the government to show that it ac- ulred its evidence from an in- ependent source. Polizzi, supra, 500 F.2d at 910." (Emphasis added.) Thus, this Court is clearly commit- ted to the proposition that given a primary showing of illegality (which was established in the case at bench), the burden then shifts to the Govern- ment to demonstrate and prove by evi- dence the absence of taint. It has been well-settled for years, that given a primary illegality, the defen- dant is entitled to an opportunity to explore in detail the circumstances under which the Government acquired the evidence at issue. In the words of the Supreme Court, the defendant must be permitted tu attempt "to prove that a substantial portion of the case against him was a fruit of the poison- ous tree." Nardone, supra, at 341. The law is thus clear. The impact of the decision of the appellate court was twofold. First, it seems to im- pose upon the defendant some obligation oi S- to request a "hearing" once the pri- mary illegality has been established. Aside from the fact that defense counsel below clearly requested such an opportunity and was clearly denied one, that is not the state of the law. See cases, Supra. Moreover, the court's decision seems to have com- pletely eliminated the requirement that the Government must prove the ab- sence of taint, and suggests that the Government's burden can be carried by mere representations of Government counsel that the challenged evidence was obtained by "normal investigative techniques." This conclusory state- ment offers absolutely no insight what- soever into the factual background from which the challenged evidence came, and obviously flies directly in the face of this Court's decisions in Alderman and Nardone, supra. 26a CONCLUSION For the reasons set forth above, a Writ of Certiorari should issue to review the judgment and opinion of the United States Court of Appeals for the Ninth Circuit. Respectfully submitted, STANLEY I. GREENBERG, A Law Corporation wy Heil, Ysscbeny Stanley Greenberg (J Attorney for Petitioner J. C. RAMSEY «2 Fo TET III gy APPENDIX A FILED December 17, 1979 RICHARD H. DEANE Clerk,U.S.Court of Appeals UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. No. 78-1191 SHERRON BASEY, Defendant-Appellant. Plaintiff-Appellee, vs. J. C. RAMSEY, Defendant-Appellant. No. 78-1203 ) ) ) ) ) ) ) ) UNITED STATES OF AMERICA, ) ) ) ) OPINION ) ) Appeal from the United States District Court for the Central District of California Before: ELY and TRASK, Circuit Judges, and EAST,* District Judge * Honorable William G. East, Senior United States District Judge, for the District of Oregon, sitting by desig- nation. ; A-1 TRASK, Circuit Judge: Basey and Ramsey appeal their convictions in the United States Dis- trict Court of conspiring to possess heroin with intent to distribute in violation of 21 U.S.C. §846 (Count I) and of distributing and possessing with intent to distribute one-half kilogram of heroin on or about March 9, 1977, in violation of 21 U.S.C. §§ 812, 84l(a) (1), and 841(b) (1) (B) (Count II). The case was tried to the court sitting without a jury and each defendant was convicted of both counts. The defendants were sentenced to con- current terms. Their separate appeals were consolidated. Appellants challenge the suf- ficiency of the evidence sustaining their convictions and contend that a voice identification of Ramsey vio- lated due process, that a chemist's testimony was inadmissible because the evidence was tampered with, and that admission of Ramsey's California dri- ver's license, issued under an alias, was "fruit of the poisonous tree." A-2 We find no merit in these contentions and affirm the convictions. Appellants' convictions are based upon a series of drug transac- tions involving appellants and three other principle parties, Bruno, Wil- liams, and Henderson. Bruno, a New York police otficer working undercover, contacted Williams in New York with re- gard to the possibility of purchasing some heroin. Williams discussed the matter with Henderson who later called from Los Angeles to inform Williams that he had a contact who could supply the heroin. Williams flew to Los Angeles where he met Henderson and was taken to meet appellant Basey. Basey gave Williams a "free sample” of brown rock heroin and said she could supply whatever Williams needed. Later, Williams gave Henderson $10,000 to buy some heroin from Basey. Henderson made the purchase. Basey, Henderson, and Williams then met at a restaurant to toast their new venture. Williams mixed the sample Basey had given him with an equal amount of the purchased A-3 heroin, returned to New York, and gave Officer Bruno the mixture. Thereafter, Williams twice traveled to Los Angeles and made simi- lar purchases. On both occasions, he met Henderson in the latter's apart- ment. Henderson would call Basey, take Williams' money, and return a few hours later with the drugs. In February 1977, Bruno, in New York, negotiated with Henderson, in Los Angeles, for a large 1-1/2 kilo Purchase. Henderson later told Bruno, in a call recorded by Bruno, that he had a contact for the heroin and would come to New York to close the deal. Wiliiams met Henderson at the airport and they both met with Bruno. Hender- son told Williams that he had met Basey's connection so he would no longer have to make purchases through her. The three negotiated an addi- tional purchase. On March 9, 1977, while in New York to deliver 1/2 kilo of heroin to Bruno, Henderson was ar- rested. He agreed to cooperate with the government and to record future A-4 Peep telephone conversations with his heroin source. The next day, Hender- son called his source, appellant Ramsey. Henderson told Ramsey that he and Bruno would come to Los Angeles to close the large 1-1/2 kilo deal which was still pending. Bruno was intro- duced to Ramsey over the phone and Ramsey identified himself by his nick- name, "Snake." Bruno and Henderson together with other federal agents, returned to Los Angeles. After some negotiations with Ramsey, the big deal fell through and Ramsey was arrested. Appellants first challenge the sufficiency of the evidence, Ramsey as to Count I and Basey as to both counts. In examining the evidence, the standard we must apply is whether there is sub- stantial evidence, taken in the light most favorable to the government, sup- porting the convictions. Glasser v. United States, 315 U.S. 60, 80 (1942). Ramsey attacks the sufficiency of the evidence on two principle grounds. First, he contends that there was insufficient evidence iden- tifying him as the individual named A-5 "Snake" who was Henderson's source and who participated in several recorded telephone negotiations with Henderson and Bruno. A number of witnesses tes- tified that Ramsey was known as "Snake." A DEA agent identified Ram- sey's voice from the recorded conver- Sations. The government also intro- duced telephone registers indicating increased telephone activity between Ramsey, Basey and Henderson during the time of the sales. Voice identifica- tion may be accomplished by direct or circumstantial evidence. United States v. Turner, 528 F.2d 143, 163 (9th Cir.), cert. denied, 423 U.S. 996 (1975) and 429 U.S. 837 (1976). We find that there was sufficient evidence establishing Ramsey's identity. Second, Ramsey asserts that the trial judge erred by receiving evi- dence of Ramsey's participation in the conspiracy before Ramsey's identifica- tion was established. The order in which this evidence comes in, subject to a motion to strike, is well within the trial court's discretion. Its ex- ercise of that discretion will only be A-6 reversed in the event of clear abuse. United States v. Weiner, 578 F.2d 757, 768 (9th Cir.), cert. denied, 439 U.S. 981 (1978). There was no abuse of dis- cretion in this case. Ramsey's chal- lenge to the sufficiency of the evi- dence is without merit. In challenging the sufficiency of the evidence supporting her convic- tions, Basey first asserts that there was nothing other than co-conspirator testimony to prove that she was a part of the conspiracy. The government, however, supported co-conspirator tes- timony of her participation with evi- dence of increased telephone activity 1/ during the time of the various sales,-— 1. We find no error in the admission of Basey's college records to estab- lish her address. A sufficient cus- todian testified that the records were made and kept in the regular course of college business. It is unimportant under Fed.R.Evid. 803(6) that the cus- todian did not herself record the in- formation or know who recorded the in- formation. See e.g., United States v. Reese, 568 F.2d 1246, 1252 (6th Cir. ; United States v. Jones, 554 F. 2d 251, 252 (5th Cir.), cert. denied, 434 U.S. 866 (1977). --(Cont'd on B-8) A-7 and with evidence of her conversation with Williams during which they dis- cussed future transactions which did eventually take place. In addition, this court has held that even uncor- roborated accomplice testimony is "sufficient evidence upon which to base a conviction if the testimony is not incredible or unsubstantial on its face." United States v. Sigal, 572 F. 2a 1320, 1324 (9th Cir. 1978). There was substantial evidence to support Basey's conviction of Count I. Basey challenges her convic- tion of Count II on the ground that there was no evidence of her continued involvement in the conspiracy on March 9, 1977, when the transaction upon which that charge is based occurred. Under the concurrent sentence doctrine (Cont'd from B-7) In this case, the "person with knowledge" required by the rule would, of course, be Basey herself. No double hearsay problem arises, therefore, as admissions and adoptive admissions are not hearsay under Fed.R.Evid. 801(d) (2). The court did not abuse its discretion by admitting the records. A-8 of Benton v. Maryland, 395 U.S. 784, 791 (1969), which this court follows, see United States v. Walls, 577 F.2d 690, 699 (9th Cir.), cert. denied, 439 U.S. 893 (1978), we need not reach ap- pellant's arguments on this count if her conviction of the first count is valid. Basey, however, can be convic- ted of the substantive acts of her co- conspirators whether or not she dir- ectly participates in those acts. United States v. Testa, 548 F.2d 847, 855 (9th Cir. 1977). Her participa- tion in the conspiracy is presumed to continue until the last overt act of ° the conspirators unless she produces affirmative evidence of withdrawal. United States v. Panebianco, 543 F.2d 447, 453 (2d Cir. 1976), cert. denied, 429 U.S. 1103 (1977). Basey produced no such affirmative evidence. Conse- quently, her conviction of Count II was proper in any event. Ramsey next contends that the procedure leading to DEA agent Smith's voice identification of him was so impermissibly suggestive as to violate due process. Use of agent Smith's A-9 testimony became necessary when testi- mony: from other potential identifica- tion witnesses was suppressed shortly before trial. In addition, although somewhat suggestive, 2/the identifica- tion procedure employed was not so sug- gestive that "the mental image derived from the witness's own experience." United States v. Kim, 577 F.2d 473, 483 (9th Cir. 1978), quoting United States v. Pheaster, 544 F.2d 353, 370- 71 (9th Cir. 1976), cert. denied, 429 U.S. 1099 (1977). Thus the require- ments of voice identification were met. See United States v. Pheaster, supra at 2. Agent Smith was asked to listen to tapes and identify any voices he heard. He was not asked if he knew Ramsey be- fore he heard the tapes or if he could identify Ramsey's voice. In this re- gard, the situation conforms with the recommendations of this court in United States v. Pheaster, 544 F.2d P th Cir. , cert. denied 429 U.S. 1099 (1977). He was aware, however, that the tapes he was listen- ing to were to be evidence in the Ram- sey and Basey trial and that it was likely that one of the defendant's voices wouid be on the tapes. He also knew that "Snake," a name used on the tapes, was a nickname for Ramsey. A-10 19-71, -2/ Both appellants assign error to the admission into evidence of a stipulated chemist's report. The re- port concluded that the substance given to Williams by Basey as a "sam-- ple," and subsequently delivered to Officer Bruno, was heroin. Williams testified that he mixed the sample with an equal amount of the substance purchased from Basey with Henderson S€rving as an intermediary. 3. Ramsey contends that agent Smith's testimony was impeached during cross- examination, thereby demonstrating the unreliability of his identification. Smith, however, testified that he had several conversations with Ramsey in- cluding one lasting 30 minutes when Ramsey was arraigned just seven months prior to trial. He testified that he was able to recognize Ramsey's voice after listening to the tape for only 15 to 20 seconds. He also testified as to several characteristics of Ram- sey's voice which he noticed in mak- ing his identification. He listened to additional tapes and identified one of the conversants as Ramsey. Thus, there was substantial evidence from which the district court could con- clude that Smith's identification was reliable. A-11 Appellants contend that this mixing resulted in an alteration of the evi- dence in violation of the rule of United States v. Godoy, 528 F.2d 281 (9th Cir. 1975), and Gallego v. United States, 276 F.2d 914 (9th Cir. 1960). Appellants' reliance upon these cases is misplaced. Godoy and Gallego re- quire that the government prove no alteration or tampering with the evi- dence after the government obtains cus- tody of it. Any alteration which oc- curred in this case was done by a co- conspirator before the government ob- tained custody. The district court did not abuse its discretion by ad- mitting the evidence. Finally, Ramsey contends that the government should not have been permitted to introduce his driver's license on the ground that it was "fruit of the poisonous tree." 4/ 4. Ramsey also objects to admission of the license on relevancy grounds. The license was issued in the name of "Charles Stein," had Ramsey's picture, and was dated three months after the end of the conspiracy. Ramsey con- tends that the license reflected cur- rent facts only, not -- (Cont'd on A-13 A-12 Prior to trial, all evidence resulting from Ramsey's arrest and subsequent search, including his driver's license, was suppressed. Thereafter, the pro- secutor subpoenaed a copy of Ramsey's license from the California Department of Motor Vehicles, which was introduced at trial as identification evidence. As this court stated in United States v. Brock, 571 F.2d 480, 483 (9th Cir. 1978), “information obtained through an unconstitutional search does not 'become sacred and inacces- sible. If knowledge of them is gained from an independent source they may be proved like any others . .. .' Silver- thorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920)." In re- sponse to inquiries by the district court, the Assistant U.S. Attorney stated that the license was obtained (Cont'd from A-12) facts existing dur- ing the conspiracy. The license, how- ever, was submitted on the issue of identification and was clearly rele- vant to demonstrate Ramsey's use of the alias "Charles Stein." Admission into evidence was not an abuse of the district court's discretion. A-13 through normal investigative techniques and that all information necessary to subpoena it was known prior to the il- legal search and seizure. Therefore, we hold that the license was not sup- Pressable as "fruit of the poisonous tree." 5/ The convictions of both appel- lants were supported by substantial evidence on both counts. The district court committed no error by admitting into evidence agent Smith's voice id- entification of appellant Ramsey, the chemist's report, or appellant Ramsey's driver's license. The convictions are AFFIRMED. 5. Ramsey now questions the district court's failure to hold a hearing on the issue of independent source. However, he requested no hearing below, and the government's representations that the source was independent were never even questioned. A-14 APPENDIX B y 4 > Laat held FILED March 10, 1980 RICHARD H. DEANE Clerk, U.S.Court of Appeals. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, ) Plaintiff-Appel lee, } vs. ) No.78-1203 J.C. RAMSEY, ORDER Defendant-Appellant.) ) Before: ELY and TRASK, Circuit Judges, and EAST,* District Judge The panel as constituted in the above case has voted to deny the peti- tion for rehearing and recommends the rejection of the suggestion for rehear- ing en banc. The full court has been advised of the suggestion for an en banc hear- ing, and no judge of the court has * Honorable William G. East, Senior United States District Judge, for the District of Oregon, sitting by desig- nation. B-1 requested a vote on the suggestion for rehearing en banc. Fed.R.App.P.35(b). | The petition for rehearing is denied and the suggestion for rehear- ing en banc is rejected. as : 5 i . eas 7 yoy / ‘ } i 2 ’ me, ’ . y 4 ‘ Py hs ; © s a in ae + " >. _ a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1926%3A1. Public record. Not legal advice.