Petition — Erickson v. Eubanks

Supreme Court brief1980

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IN THE SUPREME COURT yy

OF THE UNITED STATES | G 1980

v4 9 a | 7 ia 3 ¢_ MICHAR. RODAK, JR. CLERK

No.

THOMAS C. ERICKSON and

ANETA J. ERICKSON,

Petitioners,

VS.

HONORABLE LUTHER B. EUBANKS,

UNITED STATES DISTRICT JUDGE FOR THE >

WESTERN DISTRICT OF OKLAHOMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CLYDE R. MAXWELL

Member of Bar U.S. Supreme Court

567 San Nicolas Dr. Suite #401

Newport Beach, CA 92660

(714) 644-5232; (213) 570-8123

Attorney for Petitioners

J. GALLAGHER — Printed Briefs (714) 835-6522

TOPICAL INDEX

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TABLE OF AUTHORITIES

Cases Page

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Codes

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Rules

Federal Rules of Criminal Procedure Rule 12.4,8,9, 11. 12. 13,14,15,16

U.S.D.C. for Western District of Oklahoma Rule 13 (e)......... 6

Federal Rules of Criminal Procedure Rule 16.................. 7

Federal Rules of Criminal Procedure Rule 21 ................. 7

Federal Rules of Criminal Procedure Rule 41 .......... 4, 14, 15

U.S. Constitution

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IN THE SUPREME COURT

OF THE UNITED STATES

No. ee

THOMAS C. ERICKSON and

ANETA J. ERICKSON,

Petitioners,

vs.

HONORABLE LUTHER B. EUBANKS ;

UNITED STATES DISTRICT JUDGE FOR THE

WESTERN DISTRICT OF OKLAHOMA,

Respondent.

PETITIONER FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TO THE HONORABLE CHIEF JUSTICE AND ASSO-

CIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

THOMAS C. ERICKSON and ANETA J. ERICKSON,

the petitioners herein, pray that a Writ of Certiorari be

issued to review the Judgment of the United States Court

of Appeals for the Tenth Circuit, rendered and entered in

the above-entitled case on April 25, 1980.

OPINION BELOW

The United States Court of Appeals for the Tenth

Circuit ordered that Petitioners’ petition for writ of

mandamus be denied, on April 25, 1980, which is also the

date of entry. There was no formal written opinion. The

Order is attached hereto as Appendix K. The Petition for

writ of mandamus is attached hereto as Appendix J.

JURISDICTION

The Order of the United States Court of Appeals for the

Tenth Circuit denying Petitioners’ petition for a writ of

mandamus was rendered on April 25, 1980, and entered

the same date. The Jurisdiction of the Supreme Court is

based on 28 U.S.C. Sec. 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Did the trial judge abuse his discretion or act

inconsistently or unfairly by refusing to permit defendants

to file their pretrial motion to suppress?

2. Did the action of the trial judge, in refusing to

permit defendants the right to file their pretrial motion to

suppress, deny defendants due process of law under the

Fifth Amendment where there was no intentional waiver of

the rights defendants sought to vindicate by their motion?

3. Did the action of the trial judge, in refusing to

permit defendants the right to file their pretrial motion to

suppress, deny defendants their rights to effective assist-

ONO Agr erp IPT ome

ance of counsel under the Sixth Amendment?

4. Should the United States Court of Appeals for the

Tenth Circuit have remedied defendants grievances by

granting their Petition for Writ of Mandamus to Compel

Filing of Pretrial Motions?

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

Constitution of the United States, Fifth Amendment:

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

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

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

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without:due process

of law; nor shall private property be taken for public use,

without just compensation.

Constitution of the United States, Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been ‘previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

)

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assist-

ance of Counsel for his defence.

Federal Rules of Criminal Procedure, Rule 12:

(a) Pieadings and Motion: Pleadings in criminal

proceedings shall be the indictment and the informa-

tion, and the pleas of not guilty, guilty and nolo con-

tendere. All other pleas, demurrers and motions to quash

are abolished, and defenses and objections raised before

trial which heretofore could have been raised by one or

more of them shall be raised only by motion to dismiss or

to grant appropriate relief, as provided in these rules.

(b) Pretrial Motions. Any defense, objections, or

request which is capable of determination without the trial

of the general issue may be raised before trial by .aotion.

Motions may be written or oral at the discretion of the

judge. The following must be raised prior to trial:

(1) Defenses and objections based on defects in the

institution of the prosecution; or

(2) Defenses and objections based on defects in the

indictment or information (other than that it fails to

show jurisdiction in the court or to charge an offense

which objections shall be noticed by the court at any

time during the pendency of the proceedings); or

(3) Motions to suppress evidence; or

Requests for discovery under Rule 16; or

(5) Requests for a severance of charges or defendants

under Rule 14.

by local rule, the court may, at the time of the

arraignment or as soon thereafter as practicable, set a

time for the making of pretrial motions or requests

and, if required, a later date of hearing.

(d) Notice by Government of the Intention to

Use Evidence.

(1) At the Discretion of the Government. At the

arraignment or as soon thereafter as is practicable,

the government may give notice to the defendant of

its intention to use specified evidence at trial in order

to afford the defendant an opportunity to raise

objections to such evidence prior to trial under

subdivision (b)(3) of this rule.

(2) At the Request of the Defendant. At the

arraignment or as soon thereafter as is practicable the

defendant may, in order to afford an opportunity to

move to suppress evidence under subdivision (b)(3)

of this rule, request notice of the government’s

intention to use (in its evidence in chief at trial) any

evidencewhich the defendant may be entitled to

discover under Rule 16 subject to any relevant

limitations prescribed in Rule 16.

(e) Ruling on Motion. A motion made before trial

shall be determined before trial unless the court, for

good cause, orders that it be deferred for determina-

tion at the trial of the general issue. or until after

verdict, but no such determination shall be deferred if

LO a a ee

a party’s right to appeal is adversely affected. Where

factual issues are involved in determining a motion,

the court shall state its essential findings on the

record.

(f) Effect of Failure to Raise Defenses or Objec-

tions. Failure by a party to raise defenses or objec-

tions or to make requests which must be made prior to

trial, at the time set by the court pursuant to

subdivision (c), or prior to any extension thereof

made by the court, shall constitute waiver thereof, but

the court for cause shown may grant relief from the

waiver.

(g) Records. A verbatim record shall be made of all

proceedings at the hearing, including such findings of

fact and conclusions of law as are made orally.

(h) Effect of Determination. If the court grant a

motion based on a defect in the institution of the

prosecution or in the indictment or information, it

may also order that the defendant be continued in

custody or that his bail be continued for a specified

time pending the filing of a new indictment or

information. Nothing in this rule shall be deemed to

affect the provisions of any Act of Congress relating

to periods of limitations.

Rules of the United States District Court for the

Western District of Oklahoma, Rule 13(e):

(e) Motions in Criminal Cases. Motions in criminal

cases and particularly motions made pursuant to

Ow |

Rules 7 (f), 12, 16, 21 and 41 (e), Federal Rules of

Criminal Procedures, shall be in writing and state

with particularity the grounds therefor and the relief

or order sought. All such motions shall be filed with

the Clerk within ten (10) days after arraignment, and

a copy served upon the United States Attorney, who

shall respond within five (5) days after filing, unless a

different time is fixed by a statute ot the Federal

Rules of Criminal Procedure for such motions or

responses thereto. All motions and responses thereto

must be accompanied by a concise brief citing all

authorities upon which the movant or respondent

relies. The Court may, however, in its discretion,

order or allow such motions or responses thereto to

be filed at a time earlier than or later than that fixed

by this Rule.

Federal Rules of Criminal Procedure, Rule 41(e)

and (f):

(e) Motion for Return of Property. A person

aggrieved by an unlawful search and seizure may

move the district court for the district in which the

property was seized for the return of the property on

the ground that he is entitled to lawful possession of

the property which was illegally seized. The judge

shall receive evidence on any issue of fact necessary

to the decision of the motion. If the motion is granted

the property shall be restored and it shall be admis-

sible in evidence at any hearing or trial. If a motion for

return of property is made or comes on for hearing in

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the district of trial after an indictment or information

is filed, it shall be treated also as a motion to suppress

under Rule 12.

(f) Motion to Suppress. A motion to suppress

evidence may be made in the court of the district of

trial as provided in Rule 12.

STATEMENT OF THE CASE

Defendants were arraigned on December 6, 1979, on

charges of violating 26 U.S.C. Sec. 7203, 7206(2) and

7207, and were at that time assisted by other counsel. The

District Court granted 10 days in which to file motions,

pursuant to local rules, but then explained that he would

be lenient in case extra time was needed. The only

constraint facing him at that time was that the case had to

be ready for trial on January 7, 1980, and the motions had

to be heard and ruled on by that time. The Judge

explained that he was not at liberty to extend the motion

filing time a great deal because the Government had to be

given some time to reply, but that if counsel found that

they needed more time, they should let him know. See

Appendix L. Four days later, on December 10, 1979,

current defense counsel, a California attorney, was substi-

tuted in and retained by defendants while he was engaged

full-time in conducting a criminal trial in Houston, Texas

which was not concluded until December 20, 1979.

Because of counsel’s difficult schedule both during and

immediately after the Houston trial, a continuance,

Appendix A, was granted during his only break from the

Houston trial on December 18, 1979, continuing trial of

the instant case from January 7 to February 11, 1980. See

Appendix B. No corresponding continuance for filing of

mctions was granted, although one was requested, and the

Court stated at that time that counsel for defendants only

had until ten days after the arraignment to file pretrial

motions. However, that time limit had already expired. On

December 28, 1979, counsel filed with the Court a Motion

for Leave to File Documents Out of Time, Appendix C, to

which was attached a Motion to Suppress Evidence,

Appendix D, and an affidavit providing a factual basis of

good cause for late filing of the motion, in keeping with

Rule 12(f), F. R. Cr. P. The Motion for Leave to File

Documents Out of Time was denied by the Court on

January 2, 1980, Appendix E, and the Motion to Suppress

was considered as though never filed. Thereupon, a Notice

of Appeal was filed by defer. lants on January 11, 1980,

Appendix F. The District Court granted a Stay Pending

Appeal, Appendix G.

The United States Court of Appeals for the Tenth

Circuit, on April 1, 1980 after considering a Memorandum

Brief, Appendix H, disposed of the appeal by dismissing it

for the reason that the Order appealed from was consid-

ered to be non-appeallable since it was not, in the Court’s

opinion, Appendix I, a final order to which 28 U.S.C. Sec.

1291 would apply, nor was it covered: by the “collateral

orders” doctrine of Abney v. United States, 431 U.S.

651, 52 L.Ed.2d 651 (1977).

Subsequently, on or about April 15, 1980, a Petition for

Rehearing and Suggestion for Rehearing In Banc was

filed. A Petition for a Writ of Mandamus for Compel Filing

of Pretrial Motions, Appendix J, was also filed, on or about

April 11, 1980. Both Petitions were denied on April 25,

1980, and the Judgments were entered that day,

Appendix K. Denial of the Petition for Rehearing and the

underlying dismissal of the Appeal is the subject of a

separate Certiorari Petition. This Petition only deals with

the Tenth Circuit’s refusal to grant the Petition for Writ of

Mandamus.

It should be noted that, in addition to the motion to

suppress, another pretrial motion was filed on January 2,

1980. That motion was to permit inspection of grand jury

minutes and attendance records, and the same procedures

were followed with respect to that motion as were followed

with respect to the motion to suppress — both in the

District Court and the Court of Appeals. However, this

Petition for Certiorari will only be concerned with the

motion to suppress.

REASONS FOR GRANTING WRIT

1. The United States Court of Appeals for the

Tenth Circuit has decided a federal question in a way

that is in conflict with applicable decisions of the

Supreme Court.

In Jones v. United States, 362 U.S. 257, 264, 4

L.Ed.2d 697 (1960) Justice Frankfurter, speaking for an

eight member majority, stated that:

“... This provision of Rule 41(e), requiring the motion

to suppress to be made before trial, is a crystalization

of decisions of this Court requiring this procedure,

and is designed to eliminate from the trial disputes

over police conduct not immediately relevant to the

question of guilt. |citations omitted] As codified, the

rule is not a rigid one, for under Rule 41(e), ‘the court

inits discretion may entertain the motion [to suppress]

at the trial or hearing.’ This qualification proves

that we are dealing with carrying out an import-

ant social policy and not a narrow, finicky

procedural requirement.” (emphasis added)

In Jones, the Court was dealing with the old form

of Rule 41(e), F.R.Cr.P., the function of which is now

included in Rule 12, F.R.Cr.P. However, the rationale of

the Court has not been lost. We are still dealing with an

important social policy, one that is in fat tied closely with

notions of due process and fair trials.

In this case, the facts indicate a diligent attempt by

counsel to file motions well in advance of trial. In fact,

the trial itself was continued for the very reason given by

counsel for his inability to meet the Court’s motion

deadlines, under Rule 12(f), F.R.Cr.P. Given the trial

continuance, there remained a great deal of time in which

motions could have been prepared, heard and considered

all at once. There would have been no burdensome

administrative problems thrust on the trial judge in these

circumstances.

Therefore, under the Jones case, for the trial court to

use Rule 12, F.R.Cr.P. as an instrument to bar defendants’

rights to file pretrial motions, would be a violation of due

process of law, and not in keeping with the Jones Court’s

views of the policies sought to be enforced by the Rules.

The Court of Appeals, in denying the Petition for

Mandamus has necessarily refused to follow Jones, even

though that case disposes of the issue of defendants to

have their motions filed.

2. The Court of Appeals has so far sanctioned a

departure from the accepted and usual course of

judicial proceedings by the District Court, as to call

for an exercise of the Supreme Court’s power of

supervision.

For a motion to suppress to be timely, it must be made

prior to trial. This is the principal requirement of Rule

12(b), F.R.Cr.P. Rule 12(c), by permitting motion dates,

only provides for the orderly application of 12(b).

Here, the District has refused to allow defendants the

right to have their motion filed and considered, even

though it was filed well in advance of trial. To the extent

that it was late, it was with well-documented reasonable

cause, as provided by Rule 12(f). The District Court has

therefore allowed its own admistration of Rule 12(c) to

subvert the clear intention of Rule 12(b) and (f), and to the

extent that it has done so, the District Court has com-

mitted an abuse of discretion. This is especially clear in

light of the Jones case discussed in the previous section of

this Argument. The Court of Appeal for the Tenth Circuit,

in denying the Petition for Mandamus to correct the

District Court’s abuse, has apparently sanctioned this

behavior which is sought to be reviewed on Certiorari.

The following issues presented for review are discussed

in this context:

a. In addition to the arguments already made regarding

the trial court’s abuse of discretion, it must be noted that

the court was originally willing to grant additional time in

which to file motions, and that the court’s only constraints

were in preparing the matter for trial before another judge

by a certain date. The judge’s inconsistency and change of

mind in these circumstances certainly shows even more

forcefully that an abuse of discretion has occurred.

b. The defendants have never waived, nor did they

intend to waive, any of the rights they seek to vindicate by

their motion to suppress. Where such a motion is timely

filed, it is presumed that a defendant would be entitled to

whatever relief he can validly claim as a matter of right.

In this case, despite the fact that defendants do not intend

to waive their rights, they have been cut of by the District

Court from whatever relief they might have had as of

right. This is claimed to violate their rights to due process

of law under the Fifth Amendment, because they have lost

the procedural right to make their claim and to have it

considered. This cannot be the intent of Rule 12, consid-

ered in light of the Jones case, supra.

Certainly the “punishment” (foreclosing defendants’

right) does not fit the “crime” (tendering motions for filing

as soon as was possible, well in advance of trial, with a

showing of good cause for late filing—in keeping with

Rules 12(b) and (f).

c. The actions of the trial court also denied defendants

the effective assistance of counsel, guaranteed by the

Sixth Amendment. The defendants chose current defense

counsel because of his well-known expertise in the crim-

inal tax field, even though he was an out-of-state attorney.

The defendants should not be penalized because they

enlisted defense counsel’s aid during a brief period when

he was unable to direct enough attention to their case.

Counsel, in order to be effective, must be given the

opportunity to present the defendants’ suppression mo-

tion. As has been shown, this was attempted at the earliest

possible instance in accordance with Rule 12(f). Again, it

was an abuse of discretion for the District Court to refuse

defendants their right to effective assistance of counsel in

this preceeding.

d. The Court of Appeals for the Tenth Circuit should

have granted the Writ of Mandamus to Compel Filing of

Pretrial Motions.

Defendants showed, in their mandamus petition, that

(1) they had a clear right to the relief sought; (2) there was a

clear and preemptory duty on the part of the District

Court to do the act in question; and (3) no other adequate

remedy was available. These issues are considered below:

(1) Petitioners had a clear right to the relief sought

because the Court of Appeals may issue the Writ in aid of

its own jurisdiction. Here, granting of the Writ, which

would issue to a lower Court within the Tenth Circuit’s

appellate jurisdiction, would preserve the issues sought to

be raised by the suppression motion for appellate consid-

eration in the event the motion to suppress is denied.

(2) The Respondent Judge had a clear and peremptory

duty to do the act in question for those reasons discussed

above, where it was asserted that the District Court's

failure to allow filing of the motion was an abuse of

discretion. That contention is based primarily on the

Jones case, supra.

The legislative record of Rule 12 and related Rule 41(e)

also support this view. The Notes of the Advisory Com-

mittee on Rules, discussing the rationale of Rule 12(c),

which provides for the setting of motion dates, states:

‘“. .. This and other amendments to rule 12 are

designed to make possible and to encourage the

making of motions prior to trial, whenever possible,

and in a single hearing rather than in a series of

hearings. This is the recommendation of the Ameri-

can Bar Association’s Committee on Standards Re-

lating to Discovery and Procedure Before Trail

(Approved Draft, 1970)...”

Similarly, the Notes of the Advisory Committee on

Rules re-affirms this basic purpose in the note to Rule

41(e):

‘A sentence is added to subdivision (e) to provide

that a motion for return of property, made in the

district of trial, shall be treated also as a motion to

suppress under rule 12. This change is intended to

further the objective of rule 12 which is to have

3 all pretrial motions disposed of in a single court . CONCLUSION

appearance rather than to have a series of

pretrial motions made on different dates, caus- For the foregoing reasons, the Petition for Writ of

ing undue delay in administration.”’ (emphasis Certiorari should be granted.

added)

Certainly these notes are to be given some weight in Respectfully submitted,

ascertaining the purpose of Rule 12. And if they are given

VOTES ret om

Clyde R. Maxwell

not show a violation of the rules. Counsel did not attempt Attorney for Petitioners

due consideration, it will be found that the facts here do

to raise the suppression issue at trial. but well in

advance. And he did not seek a series of hearings, but

would have been pleased to raise the issues at a single

ates ft

hearing, had one been granted. Therefore, these Notes of

the Advisory Committee further indicate the District

Court’s clear and peremptory duty to consider the mo-

tions as properly filed.

(3) No other adequate remedy was available. If the

defendants’ motion is not raised before trial. then it may

only be considered thereafter in the discretion of the

reviewing court, or in the discretion of the trial court

during trial. The defendants intend to make the motions

that they are entitled to make as of right, and to this end

they have submitted their motions well in advance of trial, |

with an adequate showing of good cause under Rule 12(f).

ee EMER Ea

The Court of Appeals, in dismissing the defendants’

appeal from the District Court’s Order denying the motion

to file out of time left no other remedy open to the |

defendants but to petition for a Writ of Mandamus, as they

have done.

) 16 17

APPENDIX “A”

ree E

Clyde R. Maxwell DEC 7 fia

Attorney at Law CLERK yc | HOPE

q ee . By ¢ YS OISTRICT COurr

567 San Nicolas Dr., Suite 401 DEPUTy

Newport Beach, CA 92660

(714) 644-5232

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

UNITED SATES OF AMERICA,

Vs.

THOMAS C. ERICKSON and

ANETA J. ERICKSON

Cr. No. 79-184-E

MOTION FOR CONTINUANCE

os =

MOTION FOR CONTINUANCE

Come now defendants Thomas C. Erickson and Aneta

J. Erickson through their attorney Clyde R. Maxwell, and

move the Court for a continuance of the proceedings in the

above entitled matter. The following statements are made

in support thereof:

1. Motions in the above matter are now set for

December 24, 1979.

18 19

(VPNs Fa

2. Trial of the above matter is now set for January 7,

1989.

3. The defendants did not retain counsel until just a

few days ago; the counsel who was retained was, and still

is, in a criminal tax trial in Houston, and unable to prepare

for this case until the trial is concluded. It is estimated that

there will not be enough time between the time trial is

concluded and the time proceedings are to begin in this

matter for adequate preparation to be made.

4. This matter presents matters of considerable com-

plexity which needs adequate preparation; there are 45

counts in the indictment, representing 3 different kinds of

charges; there will be possibly 30 to 40 witnesses that

must be interviewed. Neither the original files or copies

thereof, upon which some of the charges are apparently

based, are in possession of the defendants or counsel, and

when these files are obtained, considerable time must be

spent in going through them.

5. It is now projected that motions to suppress evi-

dence and to dismiss the indictment will be made, and

counsel must have adequate preparation time. For this

purpose, discovery motions must also be made.

6. Defendants will waive their rights under the Speedy

Trial Act. Counsel will have the waiver filed as soon as

possible. Defendants are now on bail, and not in custody.

7. Counsel for defendants, Clyde R. Maxwell, is sche-

duled to begin a criminal tax trial in Fresno, California, on

January 8, 1980, estimated to take approximately one

and one-half weeks. Counsel also has a civil trial in which

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pate

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he is a plaintiff, scheduled to begin on January 24, 1980.

WHEREFORE, Defendants pray that their Motion for

Continuance be granted.

CLYDE R. MAXWELL,

Attorney for Defendants

DATED: 12-17-79

AFFIDAVIT OF CLYDE R. MAXWELL

Clyde R. Maxwell, being duly sworn, deposes and says:

1. That he is the attorney for Thomas C. Erickson and

Aneta J. Erickson, defendants in a criminal tax matter, in

the United States District Court for the Western District

of Oklahoma, Criminal No. 79-184-E.

2. That he has read the Motion for Continuance to

which this Affidavit is attached, and he knows that the

information contained therein is true and correct.

Further affiant sayeth not.

CLYDE R. MAXWELL

APPENDIX “B”’

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF OKLAHOMA

Oklahoma City, Oklahoma

Dated: December 18, 1979

UNITED STATES OF AMERICA

Plaintiff,

Vs.

THOMAS C. ERICKSON, et al.

Defendant.

Case No. CR-79-184-E

To Herbert T. Hope, Clerk:

Please enter the following minute order in the above

entitled case.

The Motion for Continuance filed herein by the defend-

ants on December 17, 1979, is granted and this case is

stricken from jury trial assignment of J anuary 7, 1980, and

reset for jury trial on Monday, February 11, 1980, at 9:30

a.m. this continuance does not carry with it any extension

of time for the filing of motions and none will be

considered except those that are filed within ten days from

the date of arraignment, and then only when supported

‘VP REO eee

with a brief as is required by local rule 13(d). Furthermore,

this order of continuance is granted in reliance upon all

matters stated in the application therefor, specifically

including, but not limited to, the waiver by the defendants

of their rights under the Speedy Trial Act as promised in

numbered paragraph 6 of said motion.

Furthermore, the court understands that the United

States Attorney for the Western District of Oklahoma

consents to this continuance, and same is entered without

objection of the Government.

Counsel Notified

Clerk to Notify XX

Sg ATR STE

United States District Judge

APPENDIX “C”’

CLYDE R. MAXWELL, ESQUIRE

567 San Nicolas Drive, #401

Newport Beach Calif. 92660

Telephone: (714) 644-5232

Attorney for Defendants

IN THE UNITED STATE DISTRICT COURT

FOR THE

WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA

Plaintiff

Cr. No. 79-184-E

eg MOTION FOR

THOMAS C. ERICKSON and - srekcte iam

ANETA J. ERICKSON,

OUT OF TIME

Defendants.

Defendants THOMAS ERICKSON and ANETA

ERICKSON, by and through their attorney, CLYDE R.

MAXWELL, hereby request the Court to accept their

Motion to Suppress Evidence in the above-entitled

matter for filing at this time, based on the attached

affidavit of CLYDE R. MAXWELL.

WHEREFORE, defendants pray that the Court will

deem said Motion properly filed.

DATED this 28th day of December, 1979.

(s) Clyde R. Maxwell

Attorney for Defendants

LOTR ER oe

AFFIDAVIT OF CLYDE R. MAXWELL

STATE OF CALIFORNIA )

SS.

COUNTY OF ORANGE )

CLYDE R. MAXWELL, being first duly sworn, de-

poses and says:

1. That he is the attorney for defendants Thomas and

Aneta Erickson in criminal case no. CR-79-184-E.

2. That Thomas and Aneta Erickson did not retain

him as their attorney until December 9, 1979, at which

time he was conducting a criminal trial in Houston, Texas,

which did not conclude until December 20, 1979. He did

not have local co-counsel and had to give his undivided

attention to the conduct of said trial.

3. That upon the conclusion of trial in Houston,

several post-trial matters needed to be taken care of,

which further burdened his time schedule.

4. That based upon his difficult schedule, the Court

has granted a continuance of the trial until February 11,

1980. To this end, the defendants have waived their rights

under the Speedy Trial Act.

5. That the court did not grant a corresponding

continuance for filing of pre-trial motions.

6. That only during the week beginning December 24,

1979, has counsel been able to review the documentary

materials and communications with his client in this case,

and to evaluate those events which now appear to require

the filing of certain pre-trial mctions on the defendants’

behalf. During this time, however, counsel has been short

of office help, because of the Christmas Holidays, which

coincided with this time period.

7. That he has diligently pursued the matters at hand

and is prepared now to file certain pre-trial motions.

8. That he does not ask the Court’s leave to file said

motions for the purpose of delay.

9. That the interests of justice in the instant case

would require the Court to consider the matter raised in

said motions at this time, and they therefore should be

permitted to be filed with the Court.

Further affiant sayeth not.

(s) Clyde R. Maxwell

Subscribed and sworn to before me this 28th day of

December, 1979.

(s) Sylvia J. Busch

Notray Public in and for said

County and State

(SEAL)

FO LEN TT CG REL BOTLEIIN ems

SLT ENT WELT HRCA A ETE OI et aE ee

PT SBRRT. PEN

PLE TT we pero Te:

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA, )

COUNTY OF ORANGE )

Iam employed in the county aforesaid; I am over the age

of eighteen years and not a party to the within entitled

action; my business address is: 567 San Nicolas Drive,

Suite 401, Newport Beach, California 92660; I am em-

ployed in the office of a member of the bar of this court at

whose direction the following service was made:

On December 28, 1979, I served the within entitled

Motion for Leave to File Documents Out of Time on the

United States of America in said action, by placing a true

copy thereof enclosed in a sealed envelope with postage

thereon fully prepaid, in the United States mail at New

port Beach, California addressed as follows:

LARRY D. PATTON

United States Attorney

WILLIAM S. PRICE

Assistant U.S. Attorney

4434 Federal Building

Oklahoma City, Oklahoma 73102

I declare under penalty of perjury, that the foregoing is

true and correct. 3

Executed on December 28, 1979, at Newport Beach,

California.

(s) Sylvia' J. Busch

APPENDIX ‘“‘D”’

CLYDE R. MAXWELL, ESQUIRE

567 San Nicolas Drive, #401

Newport Beach, Calif. 92660

Telephone: (714) 644-5232

Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

) Cr. No. 79-184-E

Plaintiff, )

) MOTION TO

VS. ) SUPPRESS

) EVIDENCE AND

THOMAS C. ERICKSON and ) MEMORANDUM

ANETA J. ERICKSON, ) OF POINTS AND

) AUTHORITIES

Defendants. ) INSUPPORT

)

COMES NOW defendants THOMAS C. ERICKSON and

ANETA J. ERICKSON, by and through their attorney,

CLYDE R. MAXWELL, and state to the Court as follows:

1. Property belonging to THOMAS and ANETA ERICK-

SON was seized from the premises of the Erickson Tax

Preparation office located at 211 S.E. 2nd Street in the city

Pe ET ort

of Anadarko, Oklahoma, pursuant to a search warrant issued

September 14, 1979 by Federal Magistrate RONALD L.

HOWLAND.

2. Said property consisted of lists of clients and fees of

Erickson Tax Service, and files containing information

relating to the preparation of client returns, including copies

of tax returns.

3. The search warrant is defective in that it is too

broad and fails to state with particularity what items are to

be seized.

4. ‘The search warrant was supported by an affidavit

which does not show probable cause to believe that the

subject records and documents were on the premises,

because the information relied upon in said afidavit was

too remote in time.

5. The search warrant was a subterfuge, applied for in

bad faith, to obtain records that were protected by

THOMAS and ANETA ERICKSON’S right under the

Fifth Amendment.

6. THOMAS and ANETA ERICKSON have been the

subjects of an unreasonable search and seizure of proper-

ty, which has in turn led to the improper obtaining of other

evidence, including but not limited to, testimony of

THOMAS and ANETA ERICKSON, and testimony of

clients of the Erickson Tax Service.

WHEREFORE, THOMAS and ANETA ERICKSON

pray that the Court order the suppression of all evidence

obtained pursuant to said invalid search warrant and the

fruits thereof.

DATED this 28th day of December, 1979.

(s) Clyde R. Maxwell

Attorney for Defendants

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION TO SUPPRESS

EVIDENCE

1.The search warrant was defective because it is

too broad.

The Fourth Amendment requires that no warrant shall

issue but upon probable cause, supported by oath or

affirmation, and “particularly describing the place to be

searched, and the persons or things to be seized.” U.S.

Const. Amend 4. The search warrant herein, after describ-

ing some items to be seized, permits the seizure of “other

documents, all of which are evidence or instrumentalities

of a criminal offense, in violation of Title 26 United St@tes

Code, Sections 7206(2) and 7203.” This description is too

broad, and permitted the officers executing the search to

go on a fishing expedition through defendants’ property.

This fact is pointed out more fully by the fact that the

agents who carried out the search seized six filing cabinets

EE EER EET me -

PT Rn ree

in bulk, without first inspecting them to make certain that

all of the records contained therein conformed to the

requirements of the warrant with respect to property that

could be seized.

2. The search warrant was not supported by an

affidavit showing probable cause, because the in-

formation relied upon therein was too remote.

The information sources upon which the affidavit was

based were as follows: Opal Gibson, who observed the

defendants’ place of business from December, 1976 to

February, 1977; Joyce Green, who observed from Febru-

ary, 1978 to August, 1978; and Betty Guy, who observed

from January, 1978 to August, 1978. These three wit-

nesses gave statements with respect to the preparation of

false returns, and the latter two gave statements with

respect to records of fee income of Thomas and Aneta

Erickson, and with respect to the places in which records

were kept. The last of the witnesses is said to have heard

Mr. Erickson say that he had not paid income taxes for the

previous three or four years. There was no indication that

Mr. Erickson owed any income taxes for the years in

question or that he knew he owed any taxes, and such a

statement cannot create probable cause to suspect that a

criminal violation had occurred, or that evidence thereof

was on the premises in question. The most recent observa-

tion by any of the three was in August of 1978, more than

one year previous to the issuance of the search warrant.

Inaddition to the three witnesses already listed, there is

a statement by Danita Palesano, who observed the office

of the Ericksons from January, 1978, until the date of the

affidavit in support of the warrant. She did not make any

statement with respect to the preparation of false returns.

The only issue addressed by her were the locations in the

office of certain client records, and where lists of fees were

kept.

Last, there was a statement by Jo Ann Metcalfe, of the

Internal Revenue Service Center, to the effect that no tax

returns for Thomas or Aneta Erickson are on file for the

years 1976, 1977, or 1978.

None of this information, by itself or in combination, can

support a probable cause basis for the issuance of the

search warrant.

a. All information with respect to the prepara-

tion of false returns was too remote.

The only statements in the affidavits concerning the

alleged violations of 26 U.S.C. §7206(2) were made by

observers who had last observed the Erickson’s business

in either February, 1977 or August, 1978. The information

of one witness was about 19 months old, and the informa-

tion of the other two was about 13 months old. This

information was “stale,” and could not support a finding of

probable cause to believe that the subject records and

documents were on the premises or that a crime was being

committed at the time of the warrant. United States v.

Van Ert, 350 F. Supp. 1939 (D. Wis. 1972); United

States v. Sawyer, 213 F. Supp. 38 (D. Penn.1963).

b. The testimony of Danita Palesano, which

current, did not cure any defects with respect to

adit

the stale information.

The testimony of Danita Palesano only provided in-

formation regarding the location of current records in the

Erickson’s office. In no way does this information allege

any violation of a criminal statute, or even suggest such a

violation. The only information provided concerns the

location of records, which is an irrelevant and innocuous

matter when probable cause to support a search warrant is

in issue. Furthermore, Danita Palesano stated that the

records of clients fees had been last observed in May,

1979. This information was therefore about 4 months old

at the time the warrant was issued, and was stale, remote,

and irrelevant.

c. The statement of Jo Ann Metcalfe, which

was current, did not cure any defects with respect

to the stale information.

The testimony of Ms. Metcalfe only tended to establish

that the Ericksons had not filed tax returns for 3 years.

This did not tend to show that a crime had been committed

or that evidence of a crime or the fruits or instrumental-

ities would be found on the premises of the Erickson’s

business. First, nothing has been shown to support a

showing that either Thomas or Aneta Erickson was a

person required to file a tax return, for whatever reason.

Second, nothing was shown to support a conclusion that

fruits or instrumentalities of a crime would be found at the

specific location alleged in the search warrant, as Ms.

Metcalfe was not shown to have any knowledge with

respect to this matter.

3. The search warrant violated Thomas and

Aneta Erickson’s right under the Fifth Amendment.

The search warrant was subterfuge, intended to obtain

in an improper manner information which was otherwise

protected by the d. ‘endants’ Fifth Amendment right. The

defendants were individuals, not incorporated, who had a

protected interest in the materials seized.

4. The invalid search warrant resulted in testi-

mony of the defendants and of other witnesses,

which would not have been obtained but for the

search warrant.

As aresult of the invalid search warrant, and improperly

obtained evidence resulting therefrom, statements by the

defendants and of various clients of the defendants were

also obtained. These statements suffer from the same

basic infirmity as the invalid search warrant itself, and

should be suppressed for the same reason.

WHEREFORE, defendants pray that the relief re-

quested in their Motion to Suppress be granted.

DATED this 28th day of December, 1979.

Respectfully submitted,

(s) Clyde R. Maxwell

Attorney for Defendants

(PROOF OF SERVICE BY MAIL)

STATE OF CALIFORNIA )

ss.

COUNTY OF ORANGE )

Iam employed in the county aforesaid; I am over the age

of eighteen years and not a party to the within entitled

action; my business address is 567 San Nicolas Drive,

Suite 401, Newport Beach, California 92660; I am em-

ployed in the office of a member of this court at whose

direction the following service was made:

On December 28, 1979, I served the within entitled

MOTION TO SUPPRESS EVIDENCE AND MEMO-

RANDUM OF POINTS AND AUTHORITIES IN SUP-

PORT on the United States of America in said action, by

placing a true copy thereof enclosed in a sealed envelope

with postage thereon fully prepaid, in the United States

mail at Newport Beach, California addressed as follows:

LARRY D. PATTON

United States Attorney

WILLIAM S. PRICE

Assistant U.S. Attorney

4434 Federal Building

Oklahoma City, Oklahoma 73102

I declare under penalty of perjury, that the foregoing is

true and correct.

Executed on December 28, 1979, at Newport Beach,

California.

(s) Sylvia J. Busch

APPENDIX “E”

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

Oklahoma City, Oklahoma

Dated: January 2, 1980

UNITED STATES OF AMERICA

Plaintiff,

Case No. CR-79-184-E

UNITED STATES OF AMERICA

Plaintiff,

vs.

THOMAS C. ERICKSON and

ANETA J. ERICKSON

Defendant.

To Herbert T. Hope, Clerk: |

Please enter the following minute order in the above

entitled case.

The Motion for Leave to File Documents Out of Time

Which was filed herein on this date is denied and the

tendered motions annexed to the same are considered not

filed. The court, when it granted defendants a continuance

of their trial, made it clear that no extension of time was

a —E 7 — -

granted wihin which to file motions. Local Rule 13(e) clearly

allows ten (10) days after arraignment within which to file

motions. This was called to the attention of defendants and

their counsel when they were arraigned on December 6,

1979. No motion to extend time for filing motions was made

within said initial ten-day period.

Counsel Notified

Clerk to Notify XX (s) ae

United States District Judge

APPENDIX ‘“‘F”’

iy ED

CLYDE R. MAXWELL, ESQUIRE mi Be

567 San Nicolas Drive, #401 gg Dain Ope

Newport Beach, Calif. 92660 a T Coury

Telephone: (714) 644-5232 “Pury

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, Cr. No. 79-184-

Cr. No. 79-184-D

Plaintiff,

vs. NOTICE OF

APPEAL

THOMAS C. ERICKSON and

ANETA J. ERICKSON,

Defendants.

Notice is hereby given that THOMAS C. and ANETA J.

ERICKSON, defendants above named, hereby appeal to

the United States Court of Appeals for the Tenth Circuit,

from the Order of the United States District Court for the

Western District of Oklahoma, denying defendants the right

to have their tendered motions annexed to same considered

filed, entered in this action on the 2nd day of January, 1980.

DATED this 9th day of January, 1980

CLYDE R. MAXWELL

Attorney for Defendants

TE At a

(PROOF OF SERVICE BY MAIL)

STATE OF CALIFORNIA, )

COUNTY OF ORANGE )

I am employed in the county aforesaid; I am over the age

of eighteen years and not a party ot the within entitled

action; my business address is: 567 San Nicolas Drive, Suite

401, Newport Beach, California 92660; I am employed in

the office of a member of the bar of this court at whose

direction the following service was made:

On January 9, 1980, I served the within entitled:

NOTICE OF APPEAL on the United States of America in

said action, by placing a true copy thereof enclosed in a

sealed envelope with postage thereon fully prepaid, in the

United States mail at Newport Beach, California addres-

sed as follows:

LARRY D. PATTON

United States Attorney

WILLIAM S. PRICE

Assistant U.S. Attorney

4434 Federal Building

Oklahoma City, Oklahoma 73102

I declare, under penalty of perjury, that the foregoing is

true and correct.

Executed on January 9, 1980, at Newport Beach Calif-

ornia.

SYLVIA J. BUSCH

APPENDIX “G”

Oklahoma City, Oklahoma

Dated: January 15, 1980

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA

Plaintiff,

Case No.

CR-79-184-E

VS.

THOMAS C. ERICKSON, ET AL

Defendant.

To Herbert T. Hope, Clerk:

Please enter the following minute order in the above

entitled case.

By minute order of January 14, 1980, defendants’

Motion for Reconsideration of Motions for Leave to File

Documents Out of Time was overruled. Presented in the

alternative was defendants’ Motion for Stay of Proceed-

ings pending the Tenth Circuit’s action on defendants’

appeal of this court’s denial of their Motion for Leave to

File Documents Out of Time. Notice of Appeal was duly

filed on January 11, 1980. Accordingly,

IT IS ORDERED that trial or other proceedings in the

above-entitled cause be stayed until disposition by the

Tenth-Circuit of defendants’ appeal of this court’s order.

Counsel Notified

Clerk to Notify XxX (s)

United States District Judge

APPENDIX “H”’

CLYDE R. MAXWELL, ESQUIRE

MORGAN C. TAYLOR, ESQUIRE

567 San Nicolas Drive, #401

Newport Beach, Calif. 92660

Telephone: (714) 644-5232

Attorneys for Appellants

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Nos. 80-1076

and

vs. 80-1077

THOMAS C. ERICKSON and MEMORANDUM

BRIEF

ANETA J. ERICKSON,

Defendants-Appellants.

Gome now, Thomas and Aneta Erickson, appellants

herein, by and through their attorneys, Clyde R. Maxwell

and Morgan C. Taylor, and the state as follows:

The issue that has been presented is whether the appeal

under consideration is within the jurisdiction of the Court

of Appeals for the Tenth Circuit. If the Order of the

District Court denying Appellant’s Motion to File Docu-

ments Out of Time and refusing to consider the attached

Motion to Suppress Evidence is a final and appealable

Order within the meaning of 28 U.S.C. §1291 and

Federal rules of Appellate Procedure, Rule 4 (b), then the

Court of Appeals would have jurisdiction, and the appeal

should not be summarily dismissed. Further, if the Court

of Appeals determines that an appeal does not lie, and that

the criteria for issuance of a writ of mandamus are met,

then the Court may treat the appeal as an application fro

the writ, which may then issue. These matters will be

considered separately.

1. Appealability of the Order.

Rule 4 of the Federal Rule of Appellate Procedure

merely provides that appeals from District Court orders in

criminal cases must be filed within 10 days of the entry of

the order. The Rule does not add or detract from the

definition of and “appealable order” under U.S.C. § 1291,

and cases decided thereunder. All of the requirements of

Rule 4 have been met in this case, and the only question

remaining is whether the order appealed from is “final”

under §1291 and the applicable case law.

The appeal is taken from a final order of the District

Court, denying defendants-appellants’ Motion for Leave

to File Documents Out of Time, and was made pursuant to

§ 1291.

Title 28 U.S.C. §1291 permits appeal from “final

decisions.” The instant order is not one denying suppres-

sion of evidence, although the motion which the appellants

would seek leave to file is a suppression motion. This

distinction is most important, since the appellants admit

that denial of a suppression motion itself would not be

appealable as a final order. Carroll v. United States,

354 U.S. 394, 1 L. Ed. 2d 1442 (1957). Here, the issues

involved are completely different. The practical effect of

the District Court’s order is to deny hearing and consider-

ation of important issues bearing on the prosecution; it is

not a ruling on the merits of appellants’ contentions with

respect to those issues. It is therefore a “collateral order,”

and as such, is immediately appealable under § 1291.

The appealability of collateral orders has been well

settled at least since Cohen v. Beneficial Loan Corp.,

377 U.S. 541, 92 L. Ed. 1528 (1949), when it was

recognized that there were certain decisions which“... fall

into the small class which finally determine claims of right

separarble from, and collateral to, rights asserted in the

action, too important to be denied review and too inde-

pendent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudi-

cated. The Court has long given this provision of the

statute this practical rather than a technical construc-

tion.” Cohen, supra, at 546.

The order in question in Cohen involved the right to a

security bond for litigation expenses in a shareholder’s

derivative suit, and the Court found that it was “... a final

disposition of a claimed right which is not an ingredient of

the cause of action and does not require consideration

with it.” Cohen, supra, at 546-7. See also Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 170-172, 40 L. Ed.

2d 732 (1974). |

The rule of Cohen has been extended to cover several

pretrial proceedings in criminal cases. For example, in

Stack v. Boyle, 342 U.S. 1,96 L. Ed. 3 (1951), the Court

held that where bail is excessive, the proper remedy is by

motion to reduce bail, with right of appeal to the Court of

Appeals, under §1291. Other situations in which an

appeal by way of §1291 is permitted include: denial of

motion to proceed in forma pauperis, Roberts v.

United States, 339 U.S. 844, 94 L. Ed. 1326 (1950);

criminal contempt orders, Bray v. United States, 423

U.S. 73, 46 L. Ed. 2d 215 (1975); and denial of motion to

dismiss indictment on double jeopardy grounds, Abney v.

United States, 431 U.S. 651, 52 L. Ed. 2d 651 (1977).

See also Swift & Co. v. Compania Caribe, 339 U.S. 684,

94 L. Ed. 1206 (1950); making an order vacating an

attachment in admiralty appealable, in which the court

noted that §1291 “... should not be construed so as to

deny effective review of a claim fairly severable from the

context of a larger litigious process.” Swift, supra, at 689.

The most important concern here, then, is to properly

characterize the order of the District Court which is being

appealed from, to determine whether it is a “collateral

order.” As stated earlier, the order itself is not a denial of a

pretrial motion. It is, rather, a denial of a right to file a

pretrial motion and to have it considered. Therefore, the

only issue involved in this appeal is appellants’ right to

consideration of the motion by the District Court. The

Appeals Court will not pass on the merits of the motion

itself, but if appellant are successful, the Court will

remand to the District Court with directions to permit the

motion to be filed and considered. For purposes of this

argument, therefore, the nature of the order which is being

appealed from is a “denial of a right to be heard.” The

effect of this denial, in this case, is that it is a denial of due

process, being an abuse of discretion, and it is also a denial

to the appellants of the effective assistance of counsel.

In Abney v. United States, supra, in which it was held

that a District Court’s pretrial order denying dismissal of

the indictment on double jeopardy grounds was a final

order within the meaning of §1291, the Court had

occasion to provide considerable clarification of the

“collateral orders” doctrine.

First, the Court noted that the pretrial denial of a

motion to dismiss on double jeopardy grounds is not

“final” in the sense that it terminates the criminal

proceedings in District Court. Cohen, supra, did not

require this, and neither does Abney, where the matter is

a collateral one, and it was not left “open, unfinished, or

inconclusive.”

Second, the orders in Cohen and Abney were not simply

‘“step|s] toward final disposition of the case which would

be merged in final judgment,” rather, they “resolved an

issue completely collateral to the cause of action asserted.”

Third, the decisions involved important rights which

would be lost, “probably irreparably,” if review had to wait

until final judgmenp. :

Applying the Abney criteria to the matter at hand, we

find, first, that indeed the dispute concerning the appel-

lants’ right to file their pretrial motions will not “terminate”

the proceedings; yet, it also evident that the issue is not

left “open, unfinished or inconclusive.” This is so because

the District Court has ruled definitively on the issue of

appellants’ right to file their motions.

Second, the issue of the denial of appellants’ right to

consideration of this claim is not simply a step toward final

disposition of the case; it is an issue completely collateral

to the main action. In Abney the Court reasoned ina way

that is particularly relevant to the matter at hand:

“Moreover, the very nature of a double jeopardy

claim is such that it is collateral to, and separable

from, the principal issue at the accused’s impend-

ing criminal trial, i.e., whether or not the accused is

guilty of the offense charged. In arguing that the

Double Jeopardy Clause of the Fifth Amendment

bars his prosecution, “the defendant makes no

challenge whatsoever to the merits of the

charge against him. Nor does he seek sup-

pression of evidence which the government

plans to use in obtaining a conviction.” Abney,

supra, at 659. (emphasis added)

Here, as in Abney, the issue is not related to the merits

of the charges in any way; neither is the order appealed

from a denial of a suppression motion. All that is

involved is the right to hearing and consideration,

which is a fundamental guarantee of the Constitution,

and which has nothing whatsoever to do with the

merits of the main action.

Third, there is no doubt that the right involved would be

lost. In fact, that is the purpose of rules which, in effect

«ie

penalize parties for ostensible failure to follow them. If

appellants are not permitted to file their motions for

consideration, they cannot have a fair trial or make a

proper record. The standard of review is clearly different

with respect to the merits of their motions if the motions

are never permitted to be filed in the first place. Here,

appellants have asserted that any failure to follow the

rules to the letter was either excusable or unavoidable —

evidenced by unopposed affidavits of counsel attached to

the original motions.

An important ground upon which appellants ask for

relief is that they have been denied effective assistance of

counsel. The Court of Appeals for the Second Circuit has

taken the view, in Farber v. Riker-Maxson Corp., 442

F. 2d 457 (2nd Cir. 1971), that an order refusing to

entertain nonlead counsel’s motions and prohibiting such

counsel from taking further action in violation of the

court’s order appointing lead counsel, was immediately

appealable under §1291. That case was strictily a civil

action. Here, we have a criminal ‘case — to which the

Sixth Amendment guarantee of Assistance of Counsel

applies. The holding of the Second Circuit Court of

Appeals would seem to have an even more compelling ring

to it in this context than in the context in which it was

decided.

Additionally, the Supreme Court has indicated that

Abney, supra, should be broadly construed. In Helstoski

v. Meanor, 61 L. Ed. 2d 30 (1979), Chief Justice Burger,

speaking for seven members of the Court, held that where a

—

motion to dismiss an indictment on Speech or Debate

Clause grounds had been denied, there was nothing further

that could be accomplished on that ground in the trial

court, and the order would be immediately appealable

under §1291. The remarkable point made in Helstoski,

however, is that the Court regarded the application of

Abney (which involved a double jeopardy claim) to the

Speech or Debate situation to be “predictable,” and it

therefore thought it proper to penalize Helstoski for his

failure to read Abney broadly and to have proceeded by

mandamus rather than appeal. The clear message of

Helstoski is that the “collateral orders” doctrine is not to

be rigidly applied to certain specific and pre-defined

factual situations, but rather, whenever the rationale of

the rule is found to apply.

The only other recent Supreme Court case of which

counsel is aware, United States v. MacDonald, 435 U.S.

850, 56 L. Ed. 2d 18 (1978), does not detract from this

view. While the Court did hold that denial of a speedy trial

claim was not appealable before trial, it re-affirmed Cohen

and Abney, and stated that the resolution of such a claim

“necessitates a careful assessment of the particular facts of

the case. As is reflected in the decisions of this Court, most

speedy trial claims, therefore, are best considered only

after the relevant facts have been developed at trial.”

MacDonald, supra, at 858. Here, there is nothing to be

developed at trial which would shed any light whatsoever

on the appellants’ rights to have their pretrial motions filed

and considered. This issue is just too collateral to the

main issues, and the time is now ripe for review.

Therefore, the appellants’ emphasize what appears to

them to be a clear right to review of the orders appealed

from at this point in time, and the Court of Appeals is

respectfully requested to grant them the right to proceed

by appeal, and to refrain from summary dismissal.

2. TREATMENT OF APPEAL IS APPLICATION

FOR WRIT OF MANDAMUS.

This issue has arisen only because the Court of Appeals

has indicated that it may find itself without jurisdiction

over the appeal. The appellants have consistently and in

good faith regarded the jurisdiction of this Court to have

been properly invoked under the “collateral orders” doc-

trine. However, if the Court should dismiss the appeal, the

rights sought to be vindicated here are still too important to °

be lost. The Courts of Appeal have consistently held that

where appeal is found to be improper, and where the

requirements for mandamus otherwise exist, the Court

may treat the appeal as an application for the writ. The writ

may then issue, or the Court may grant leave to file a

formal petition therefor. Leesona Corp. v. Cotwool Mfg.

Corp., 308 F. 2d 895 (4th Cir. 1962); Steccone v. Morse-

Starrett Products Co., 191 F. 2d 197 (9th Cir. 1951);

Shapiro v. Bonanza Hotel Co., 185 F. 2d 777 (9th Cir.

1950); Woodcock v. Donnelly, 470 F. 2d 93 (1st Cir.

1972); Western Geophysical Co. of America v. Bolt

Associates, Inc., 440 F. 2d 765 (2nd Cir. 1971).

All parts of the record upon which a petition for

mandamus would be made are already part of the record on

appeal. The statement which follows is intended to supply

the information that is required by Rule 21 of the Federal

Rules of Appellate Procedure. If this statement is inade-

quate, the appellants’ request that leave to file a formal

petition be granted.

The request is pursuant to the All Writs Act, and it is

asked that a writ of mandamus issue, directing the District

Court, Judge Luther B. Eubanks, to grant the Motion for

Leave to File Documents Out of Time, and to permit

appellants to file their Motion to Suppress Evidence, and

have it considered on the record.

The reasons why said writ should issue are as follows:

a. Appellants (petitioners) have a clear right to

relief sought. The Court of Appeals may issue the writ in

aid of its own jurisdiction. Here, where the writ will be

issued to a lower Court within the jurisdiction of the Tenth

Circuit, and will preserve the issues sought to be raised by

the suppression motion for appellate consideration, the

right of the appellants to this form of relief is clear.

b. There is clear and peremptory duty on the part

of the District Court to do the act in question. Rule 12

(b) of the Federal Rules of Criminal Procedure provides

that:

“Any defense, objection, or request which is capa-

ble of determination without trial of the general

issue may be raised before trial by motion. ... The

following must be raised prior to trial: (1) Defenses

and objections based on defects in the institution of

the prosecution; or (2) Defenses and objections

es. ee

ee eee

based on defects on the indictment or information...

. or (3) Motions to suppress evidence; or Requests

for discovery under Rule 16... .”

Subsection (c) provides that:

“Unless otherwise provided by local rule, the court

may, at the time of the arraignment or as soon

thereafter as practicable. set a time for the making

of pretrial motions or requests and, if required, a

later date of hearing.”

Rule 41, subsections (e) and (f) provide respectively, that a

motion for return of property made after and indictment

shall be treated as a motion to suppress under Rule 12, and

that motions to suppress may be made in the court of the

district of trial, as provided in Rule 12.

Taken together, these rules essentially provide for the

orderly disposition of certain kinds of claims that are

typically, if not routinely, raised in criminal prosecutions.

According to rules that have evolved in Congress and the

Courts, a party with a valid claim of one kind or another

would presumably be entitled to appropriate relief, which

could be obtained by making a timely motion. In other

words, relief is to be had as a matter of right, providing it is

timely requested.

For a request or motion to be timely, it must be raised

prior to trial. That is the principal requirement of Rule

12(b), and the Courts have agreed that in the usual case,

the rule is a fair one. See e.g., Jones v. United States, 362

U.S. 257, 264, 4 L. Ed. 2d 697 (1960). Rule 12(c) only

provides for the orderly application of 12(b). The Notes of

the Advisory Committee on Rules provide us with the

rationale of 12(c) regarding motion dates:

“.. This and other amendments to rule 12 are

designed to make possible and to encourage the

making of motions prior to trial, whenever possible,

and in a single hearing rather than in a series of

hearings. This is the recommendation of the Amer-

ican Bar Association’s Committee on Standards

Relating to Discovery and Procedure Before Trial

(Approved Draft, 1970)...”

Similarly, the Notes of the Advisory Committee on Rules

re-affirm this basic purpose in the note to Rule 41(e):

“A Sentence is added to subdivision (e) to provide

that a motion for return of property, made in the

district of trial, shall be treated also as a motion to

suppress under Rule 12. This change is intended to

further the objective of rule 12 which is to have

all pretrial motions disposed of in a single

court appearance rather than to have a series

of pretrial motions made on different dates,

causing undue delay in administration.” (em-

phasis added)

In Jones v. United States, supra, at 264, Justice

Frankfurter, speaking for an eight member majority, noted

that:

“.. [this provision of Rule 4(e), requiring the

motion to suppress to be made before trial, is a

crystalization of decisions of this Court requiring

this procedure, and is designed to eliminate from

the trial disputes over police conduct not immediat-

ely relevant to the question of guilt. (citations

omitted). As codified, the rule is not rigid one, for

under Rule 41(e) the Court in its discretion may

entertain the motion [to suppress] at the trial or

hearing.’ This qualification proves that we are

dealing with carrying out an important social

policy and not a narrow, finicky procedural

requirement.”’ (emphasis added).

In Jones, the Court was dealing with the old form of

Rule 41(e) — the function of which is now included in Rule

12. However, the rationale of the Court is not lost — we are

still dealing with an important social policy, one that is in

fact tied closely with notions of due process and a fair trial.

In this case, the facts indicate an attempt by counsel to

file motions well in advance of trial. In fact the trial itself

was continued for the very reasons given by counsel for

his inability to meet the Court’s motion deadlines. Why

the motion date was not also continued upon timely

request is a mystery. Given the trial continuance, there

remained a great deal of time in which motions could have

been prepared, heard, and considered all at once. There

would have been no burdensome administrative problems

thrust on the trial judge in these circumstances. As set

forth in the affidavits of appellants’ counsel, the motions

that were tendered for filing were prepared as quickly as

possible under the circumstances, well in keeping with the

policy of Rule 12 to make such motions before trial. the

cause of delay, as set out in the affidavits, was counsel's

involvement in another trial, and other attendant prob-

lems.

The appellants do not waive the rights intended to be

vindicated by their motions. They did not wait until trial to

raise the issues contained therein, or cause any undue

surprise or disruption of the trial. Certainly, the “punish-

ment” (foreclosing appellants’ rights) does not fit the

“crime” (tendering motions for filing as soon as was

possible, well in advance of trial — in keeping with Rule

12(b) ).

Appellants’ rights to have their motions filed and

considered on the record are clear. The failure of the trial

judge in this instance amounts to an abuse of discretion and

denial of effective assistance of counsel, which can be

remedied by a writ of mandamus compelling him to

consider the motions as filed. No request is made to the

Court of Appeals to direct the District Court to grant the

tendered motions, only to consider them on the record and

to see that appellants receive a fair trial. The District

Court has a duty to oversee the federal judicial process

and to ensure a fair trial in every instance.

c. No other adequate remedy is available.

If the appellants’ motions are not raised before trial,

then they may only be considered thereafter in the

discretion of the reviewing court, or in the discretion of

the trial court during trial. The appellants intend to make

the motions that they are entitled to make as of right, and

to this end they have submitted their motions well before

trial. If the writ is not granted, and the case proceeds to

OO ee ee

atest tiees i nadaeess

trial, the appellants rights have been all but lost. The

scope of review by the Court of Appeals will be minimal. In

addition, if the District Court grants appellants’ motions,

there would be no need for trial at all.

WHEREFORE, appellants respectfully request that

their appeal be permitted to proceed; and that in the event

the appeal is dismissed, that a writ of mandamus issue to

compel the needed relief, or that appellants be given leave

to apply for such a writ.

DATED this 25th day of February, 1980.

Respectfully submitted,

CLYDE R. MAXWELL

MORGAN C. TAYLOR

Attorneys for Appellants

By Clyde R. Maxwell

(PROOF OF SERVICE BY MAIL)

STATE OF CALIFORNIA, )

COUNTY OF ORANGE )

lam employed in the county aforesaid; I am over the age

of eighteen years and not a party to the within entitled

action; my business address is: 567 San Nicolas Drive,

Suite 401, Newport Beach, California 92660; I am em-

ployed in the office of a member of the bar of this court at

whose direction the following service was made:

On February 26, 1980, I served the within entitled

MEMORANDUM BRIEF on the Appellee in said action,

by placing a true copy thereof enclosed in a sealed

envelope with postage thereon fully prepaid, in the United

States mail at Newport Beach California, addressed as

follows:

LARRY D. PATTON

United States Attorney

WILLIAM S. PRICE

Assistant ULSL Attorney

4434 Federal Building

200 N.S. Fourth

Oklahoma City, OK 73102

I declare, under penalty of perjury, that the foregoing is

true and correct.

Executed on February 26, 1980, at Newport Beach

California.

SYLVIA J. BUSCH

APPENDIX “T”’

4-1-80 80-1076 - 80-1077 - 80-1085 - 80-1086

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SLIP OPINION

NOT FOR ROUTINE PUBLICATION __ ,,,. Pr a | Appeals from the United States District Court

ene Pha | For the Western District of Oklahoma

UNITED STATES COURT OF APPEALS 7 (Civ. No. 79-00184-E)

TENTH CIRCUIT

Submitted on the briefs pursuant to Tenth Circuit Rule 9:

Clyde R. Maxwell and Morgan C. Taylor, Newport Beach

California, for Defendants-Appellants.

Larry D. Patton, United States Attorney, William S. Price,

Assistant United States Attorney, Oklahoma City, Okla-

THOMAS C. ERICKSON, homa, for Plaintiff-Appellee.

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V. No. 80-1076

Pr a ee ae

UNITED STATES OF AMERICA, | Before

Plaintiff-Apellee, PICKETT, McWILLIAMS and SEYMOUR, Circuit Judges.

V. No. 80-1077 |

ANETA J. ERICKSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 80-1085

THOMAS C. ERICKSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv. No. 80-1086

ANETA J. ERICKSON, |

Defendant-Appellant,

opuees

58 7 59

PER CURIAM

After examining the briefs and the appellate records,

this three-judge panel has determined unanimously that

oral argument would not be of material assistance in the

determination of these appeals. See Fed. R. App. P.

34(a); Tenth Circuit R. 10(e). These causes are therefore

ordered submitted without oral argument.

Appellants Thomas and Aneta Erickson were indicted

for various violations of federal income tax laws. They

were arraigned, with retained counsel present, on Decem-

ber 6, 1979. A hearing on any motions was scheduled for

December 24 and trial was set for January 7, 1980.

Appellants had ten days after arraignment within which to

file motions. See W.D. Okla. R. 13(e).

On December 9 the Ericksons retained a new attorney.

On December 11 appellant’s original counsel requested to

withdraw. The district court immediately entered an order

allowing such withdrawl, but stated no extension of time to

file motions would be given.

On December 17 the Ericksons’ new counsel filed a

motion for continuance. The district court rescheduled

the trial for February, 1980, but stated the continuance

did not include any extension of time for the filing of

motions.

On January 2, 1980, the Ericksons’ new counsel filed a

“Motion for Leave to File Document Out of Time,” in

which he sought leave to file an untimely motion to

suppress. The district court denied the motion, stating that

appellants and their original counsel had been made aware

of local Rule 13(e) at the arraignment; that in granting the

trial continuance, no extension of time was given for filing

of motions; and that appellants had filed no motion within

the ten-day period after arraignment requesting an ex-

tension of time to file motions.

Appellants subsequently filed another “Motion for

Leave to File Documents Out of Time,” this time seeking

permission to file an untimely “Motion to Permit Inspec-

tion of Grand Jury Minutes and Attendance Records.”

The district court also denied this motion.

The Ericksons filed notices of appeal from the district

court’s order denying each motion for leave to file the

documents out of time. We have determined that the

denial of the motions to file documents out of time are not

final, immediately appealable orders.

The law is clear that an order denying a motion to

suppress is not appealable. DiBella v. United States,

369 U.S. 121 (1962). In determining whether an order is

final and appealable, we cannot find a meaningful distinc-

tion between a denial motion to suppress. Therefore, we

conclude the district court’s order denying appellants

leave to file an untimely motion to suppress is not

appealable. Cf. United States v. Watson, 594 F. 2d

1330 (10th Cir.), cert. denied, 100 S. Ct. 78 (1979)

(denial of motion to suppress on the grounds it was

untimely filed did not constitute abuse of discretion).

We similarly conclude the district court’s order denying

appellants leave to file an untimely motion to inspect the

grand jury minutes and attendance records is not within

the small class of cases that are beyond the confines of the

final judgment rule. See generally 28 U.S.C. §1291;

United States v. MacDonald, 435 U.S. 850 (1978);

United States v. Ritter, 587 F. 2d 41 (10th Cir. 1978).

Appellants’ memorandum filed with this court asks us in

the alternative to treat this appeal as a petition for a writ of

mandamus. We decline to do so because the procedural

requirements for mandamus have not been met.

APPEALS DISMISSED.

beds Satin teriateis

Digtediia’

APPENDIX “J”

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,

No. 80-1076

= 80-1077

THOMAS C. ERICKSON nie

; and 80-1086

ANETA J. ERICKSON,

Defendants-Appellants.

PETITION FOR HEARING AND SUGGESTION

FOR REHEARING IN BANC

On Appeal from the Judgment of the United States

District Court for the Western District of Oklahoma

CLYDE R. MAXWELL

MORGAN C. TAYLOR

Attorneys at Law

567 San Nicolas Dr., Suite 401

Newport Beach, California 92660

(714) 644-5232

Attorneys for Defendants-Appellants

TOPICAL INDEX

Page

PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING IN BANC ...... 2

TABLE OF AUTHORITIES

CASES: Page

Abney v. United States,

491 0.S.-664, 63 EL. Bed. 2d 661 {1977}... 5c. as 4

DiBella v. United States,

PAE SS irri eect ire. to 3

Helstoski v. Meanor,

pr ana vam |S Oi bi Bak. 24 SO CISTS) one 6 Sen 4

STATUTES & CODES:

Federal Rules of Appellate Procedure

a RD Sr Bee Oe k oe ee aU OLEV ERY ES 2

UNITED STATES COURT OF APPEALS |

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

¥s No. 80-1076

THOMAS C. ERICKSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Defendant-Appellee,

V. No. 80-1077

ANETA J. ERICKSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V. No. 80-1085

THOMAS C. ERICKSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vi No. 80-1086

ANETA J. ERICKSON,

Defendant-Appellant.

PETITION FOR REHEARING

AND

SUGGESTION FOR REHEARING IN BANC

The appellants petition for rehearing pursuant to Rule

40 of the Federal Rules of Appellate Procedure, for the

reasons that certain points.of law and fact have been

overlooked or misapprehended by the Court, in its Opinion,

filed April 1, 1980 as follows:

The Court apparently has decided that the two motions

under consideration — the first being a Motion to File

Documents Out of Time to which a Motion to Suppress

was attached, and the second being a Motion to File

Documents Out of Time to which a Motion to Inspect

Certain Grand Jury Records was attached — should be

treated differently. On page three of the Opinion, the

Court disposed of these motions on different grounds. The

first motion was found to be non-appealable because the

motion that it referred to was a motion to suppress — and

since denial of a motion to suppress would not be

immediately appealable, the motion to file it out of time

would not be either. The second motion was found to be

non-appealable because it was “not within the small class

of cases that are beyond the confines of the final judgment

rule.” (page 3, third paragraph).

The appellants concede, first of all, that denial of a

motion to suppress is not immediately appealable. Di-

Bella v. United States, 369 U.S. 121 (1962). Nor,

he arguably, would the motion to inspect grand jury records

Se appealable before trial. However, these points are

really irrelevant here. The motions to file out of time are

distinctly different from the motions to which each

applied. For purposes of argument, we will refer to the

motions to file out of time as the “procedural motions”,

and the motions to suppress and to inspect grand jury

records as the “substantive motions”.

The procedural motions only relate to the appellant’s

rights to be heard — they do not in any way relate to the

matters which are to be heard. In contrast, the substantive

motions relate only to matters which are to be heard, and

not to the rights of the appellants to present their views.

Because the procedural and substantive motions are so

fundamentally different, it is misleading to apply the same

rules of appealability to the procedural motions that

would be applied to the underlying substantive motion.

The substantive motions have not been denied, because

they have not been filed.

Therefore, it is respectfully submitted that the basis for

decision as to both of the procedural motions that are

‘tentatively before the Court for review, should be the

same, whether the Court finds the Orders herein appeal-

able or not.

We therefore proceed with an analysis of the appealabil-

ity of the Orders denying the procedural motions. When

these issues are separated from those pertaining only to

the substantive motions, the situation should be clear.

The most important authorities dealing withcollateral

orders”, and which the Court did not cite in its decision,

are Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d

651 (1977), and Helstoski v. Meanor, . SS SR

61 L. Ed. 2d 30 (1979).

Appellants concede that the issues of whether evidence

should be suppressed, or whether they should be granted

the right to inspect certain grand jury records, are not

really collateral to the main action. But whether they have

a procedural right to file their motions and to have a

hearing thereon most surely is collateral. Abney, supra,

requires that the matter not be left “open, unfinished, or

inconclusive” — which is the case here, where the District

Court has actually cut off the procedural right to file

motions.

Second, Abney requires that the Order appealed from

not be simply a “step toward final disposition of the case

which would be merged in final judgment,” but one which

“resolved an issue completely collateral to the cause of

action asserted.” Here, the issue of whether the appellants

have the right to file their motions has no bearing on the

merits of the motions or on the guilt or innocence of the

appellants. The issue of appellant’s procedural rights has

already been terminated with as much finality as is ever

possible.

And third, as in Abney, there is no doubt that the rights

sought to be redeemed would be lost, “probably irrepar-

ably,” if review had to wait until final judgment in the

criminal case as a whole. That, in fact, is the purpose of

rules which, in effect, penalize parties for ostensible

failure to follow them.

In addition to Abney, the Supreme Court has indicated

in Helstoski, supra, that the collateral orders doctrine is

to be applied broadly. There, the Court held that where a

(congressman’s) Speech or Debate privilege had been

denied there was nothing further that could be accomp-

lished on that ground in the trial court, and the Order was

therfore immediately appealable — even though the case

was a criminal one such as we have here. Furthermore, the

Court indicated that the application of Abney (which

involved a double jeopardy claim) should have been

predictable to Helstoski, and should have proceeded by

appeal rather than by mandamus.

It is therefore respectfully requested that the Court of

Appeals assume jurisdiction over this appeal, and that it

grant the relief prayed for therein. Inasmuch as the issue of

the applicability of the “collateral orders” doctrine in this

situation is one of first impression, appellants respectfully

suggest that the case is a proper one for rehearing before

the Court in banc.

A separate Petition for Mandamus has been made to

this Court, and for that reason, the Court’s decision not to

treat the Appeal as such Petition will not be discussed

here.

Respectfully submitted,

CLYDE R. MAXWELL

MORGAN C. TAYLOR

Attorneys at Law

567 San Nicolas Drive, Suite 401

Newport Beach, California 92660

(714) 644-5232

DATED: |. eae ee

CLYDE R. MAXWELL

PROOF OF SERVICE

STATE OF CALIFORNIA )

COUNTY OF RIVERSIDE )

I am a citizen of the United States and a resident of the

County aforesaid; I am over the age of eighteen years and

not a party to the within entitled action; my business

address is 612 North Bush Street, Santa Ana, California

92701.

OnApril ,1980,I served the within PETITION FOR

REHEARING AND SUGGESTION FOR REHEARING

IN BANC on the interested parties in said action, by

placing a true copy in a sealed envelope, with postage

thereon fully prepaid in the United States mail at Santa

Ana, California, addressed as follows:

Larry D. Patton, United States Attorney

William S. Price, Assistant United States Attorney

4434 Federal Building

200 N.W. Fourth

Oklahoma City, Oklahoma 73102

I certify under penalty of perjury that the foregoing is

true and correct.

EXECUTED on April 1980, at Santa Ana,

California.

JACK GALLAGHER

APPENDIX “J” i Pursuant to Rule 21 of the Federal Rules of Appellate

Procedure, the Petition of Thomas C. Erickson and Aneta

CLYDE R. MAXWELL, ESQUIRE J. Erickson, hereinafter referred to as petitioners, respect-

MORGAN C. TAYLOR, ESQUIRE fully shows that:

567 San Nicolas Drive, #401 | R

Newport Beach, Calif. 92660 | 1. The facts necessary to an understanding of the issues

Telephone: (714) 644-5232 presented by this application are as follows:

Attorney for Petitioners a. Defendants were arraigned on December 6.

1979. Clyde R. Maxwell was retained by defendants on

December 10, 1979, while conducting a criminal trial in

Houston, Texas which concluded on December 20, 1979.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THOMAS C. ERICKSON and Cane Ma. Because of counsel’s difficult schedule both during and

ANETA J. ERICKSON, 80-1394 | after the Houston trial, and pursu-ant defendant’s waiver

Petitioners, PETITION FOR of speedy trial, a continuance was granted on December

Bs MANDAMUS TO 18, 1979, continuing trial of the instant case from January

LUTHER B. EUBANKS, UNITED COMPEL FILING 7, to February 11, 1980. No corresponding continuance

STATES DISTRICT JUDGE OF PRETRIAL for filing of motions was granted, and the Court stated at

FOR THE WESTERN DISTRICT MOTIONS that time that counsel for defendants had until ten days

OF OKLAHOMA, after arraignment to file pretrial motions, however, that

Respondent. time limit had already expired on December 16, 1979. On

. December 28, 1979, counsel filed with the court a Motion

UNITED STATES OF AMERICA, for Leave to File Documents Out of Time, to which was

Plaintiff, (D.C. No attached a Motion to Suppress Evidence, and an affidavit

providing a factual basis of good cause for late filing of the

CR-79-184-E) motion. The Motion for Leave to File Documents Out of

Time was denied by the Court on January 2, 1980, and the

vs.

THOMAS C, ERICKSON and

ANETA J. ERICKSON,

Defendants.

Petition for Writ of Mandamus to the Honorable Lvther B.

Eubanks, United States District Judge for the Western

District of Oklahoma:

Motion to Suppress Evidence was considered as though

never filed. Thereupon a Notice of Appeal was filed by

defendants on January 11, 1980.

On January 2, 1980, counsel filed with the Court a

2 13

Motion for Leave to File Documents Out of Time, to which

was attached a Motion to Permit Inspection of Grand Jury

Minutes and Attendance Records, and an affidavit pro-

viding a factual basis of good cause for late filing of the

motion. The Motion for Leave to File Documents Out of

Time was denied by the court on January 7, 1980, and the

Motion to Permit Inspection of Grand Jury Minutes and

Attendance Records was considered as though not filed.

There-upon another Notice of Appeal was filed by defend-

ants on January 15, 1980. |

The United States Court of Appeals for the Tenth

Circuit, on April 1, 1980, has since disposed of the appeals

by dismissing them for the reason that the Orders

appealed from are non-appeallable since they are not, in

the Court’s opinion, final orders to which 28 U.S.C.

§ 1291 would apply. At this time, a Petition for Rehearing

and Suggestion for Rehearing In Banc are pending in the

Tenth Circuit.

b. Copies of the motions that were filed with the District

Court are attached, as is a copy of the arraignment

proceedings before Judge Eubanks, at which time previ-

ous counsel for the defendants were informed that more

time in which to file motions could be obtained if needed.

The relevant part of the record is as follows:

“THE COURT: And that plea will be noted by

the Clerk. Your lawyers will be given ten days from

today to file any motions that are needed or any

that may be deemed proper, that is pursuant to our

local rule that lawyers are well acquainted with, 13-

“MR. BLOODWORTH: If the Court please. we

are well acquainted with 13-E but there are 45

counts in this Indictment and could we at this time

orally ask for additional time or do you want that in

writing?

“THE COURT: Well, why don’t you look at and

see if you can do it and the Court would be lenient

there but not beyond, now, let me explain, I have

the docket during this month and it’s not only in

keeping with our [sic] local rule but our good

relationship as between judges, I must clean these

motions all up and get the case ready for trial for

Judge Daugherty’s docket in January and hes

already set his docket to start January 7th. So. ['m

not at liberty to extend your motion filing a great

deal because the Government is to be given a little

time. But certainly when you look into it if vou

absolutely need more time let me know.

“MR. BLOODWORTH: Thank you, Your Honor.

“THE COURT: But within that — those peri-

meters, you see, I got to get responses. And Im

going to apply the rule at this moment and I have

authority, you know, to extend the time, either

shorten or lengthen and in this case lengthen, but

I’m going to set them for oral argument for Thurs-

day, December 27th. If. however, it becomes im-

perative that you need some time then we will hear

them Thursday after New Years, whatever date

that be, would that be about the 5th, I guess, 3rd or

4th. But the Defendants will remain free under the

bond that you posted with the Magistrate, yester-

day to await trial.”

The Court began by giving 10 days in which to file

motions, but then explained that he would be lenient in

case extra time was needed. The only constraint facing the

Judge at that time was that the case had to be ready before

trial on January 7, 1980, and the motions had to be heard

and ruled on by that time. The Judge explained: “So I’m

not at liberty to extend your motion filing a great deal

because the Government is to be given a little time. But

certainly when you look into it if you absolutely need more

time let me know.” (Reporter’s transcript, page 5, lines 11-

14) when Mr. Maxwell received a continuance on Decem-

ber 18, 1979, continuing the trial until February 11, 1 980,

all of the obstacles to continuing the motions as well were

removed, at least according to the criteria recited by

Judge Eubanks. In fact, the very reasons that Judge

Eubanks relied upon in granting the continuance of trial

were the same reasons Mr. Maxwell gave when he sought,

just a few days later, for leave to file motions out of time.

Under the circumstances, counsel for defendants asserts

that the Judge has clearly committed an abuse of discre-

tion.

2. The issues presented and the relief sought are as

follows:

a. The issues in this case are, first, whether the District

Court abused its discretion or acted inconsistently and

unfairly, under the circumstances, by denying defendants’

motions for leave to file documents out of time, and

refusing to allow defendants to file the respective mo-

tions to which they were annexed.

Second, it is in issue whether the action of the District

Court denied the defendants due process of law, where

there has been no intentional waiver by the defendants of

the rights which they seek to vindicate by their pretrial

motions, especially in light of the District Judge's duty to

supervise the fair administration of justice in the federal

courts.

Third, it is an issue whether the action of the District

Court denied the defendants effective assistance of counsel,

where counsel was retained several days after arraignment

and could not become familiar with the case immediately

because of a prior trial commitment which, in fact, caused

the Court to grant a continuance of the instant case, and

where counsel filed motions as soon thereafter as was

possible, well in advance of trial, and presented affidavits

of good cause for late filing to the Court, and where the

Court nevertheless refused to allow filing of said motions.

b;. The relief sought here is a writ of mandamus to

compel the District Court to permit the defendant’s

pretrial motions to be filed and considered.

3. The writ should issue for the following reasons:

a. Petitioners have a clear right to the relief

sought. The Court of Appeals may issue the writ in aid of

its own jurisdiction. Here, where the writ will be issued toa

lower Court within the jurisdiction of the Tenth Circuit,

and will preserve the issues sought to be raised by the

suppression motion for appellate consideration, the right

of the petitioners to this form of relief is clear.

b.There is clear and peremptory duty on the part of

the District Court to do the act in question.. Rule

12(b) of the Federal Rules of Criminal Procedure provides

that:

“Any defense, objection, or request which is capa-

ble of determination without trial of the general

issue may be raised before trial by motion. .. . The

following must be raised prior to trial: (1) Defenses

and objections based on defects in the institution

prosecution; or (2) Defenses and objections based

on defects in the indictment or information . . .; or

(3) Motions to suppress evidence; or Requests for

discovery under Rule 16...”

Subsection (c) provides that:

“Unless otherwise provided by local rule, the court

may, at the time of the arraignment or as soon

thereafter as practicable, set a time for the making

of pretrial motions or requests and, if required, a

later date of hearing.”

Rule 41, subsection (e) and (f) provide, respectively,

that a motion for return of property made after an

indictment shall be treated as a motion to suppress under

Rule 12, and that motions to suppress may be made in the

Court of the district of trial, as provided in Rule 12.

Taken together, these rules essentially for the orderly

disposition of certain kinds of claims that are typically, if

not routinely, raised in criminal prosecutions. According

to rules that have evolved in Congress and the Courts, a

party with a valid claim of one kind or another would

presumably be entitled to appropriate relief, which could

be obtained by making a timely motion. In other words,

relief is to be had as a matter of right, providing it is timely

requested.

For a request or motion to be timely, it must be raised

prior to trial. That is the principal requirement of Rule

12 (b), and the Courts have agreed that in the usual case,

the rule is a fair one. See e.g., Jones v. United States,

362 U.S. 257, 264, 4 L. Ed. 2d 697 (1960). Rule 12 (c) only

provides for the orderly application of 12 (b). The Notes of

the Advisory Committee on Rules provide us with the

rationale of 12 (c) regarding motion dates:

‘“... This and other amendments to rule 12 are

designed to make possible and to encourage the

_making of motions prior to trial, whenever possible,

and in a single hearing rather than in a series of

hearings. This is the recommendation of the Amer-

ican Bar Association’s Committee on Standards

Relating to Discovery and Procedure Before Trial

(Approved Draft, 1970)...”

Similarly, the Notes of the Advisory Committee on

Rules re-affirm this basic purpose in the note to Rule

41(e):

- A sentence is added to subdivision (e) to provide

that a motion for return of property, made in the

district of trial, shall be treated also as a motion to

suppress under rule 12. This change is intended to

further the objective of rule 12 which is to

have all pretrial motions disposed of in a

single court appearance rather than to have a

series of pretrial motions made on different

dates, causing undue delay in administra-

tion.”’ (emphasis added)

In Jones v. United States, supra, at 264, Justice

Frankfurter, speaking for an eight member majority, note

that:

“. .. This provision of Rule 41(e), requiring the

motion to suppress to be made before trial, is a

crystalization of decisions of this Court requiring

this procedure, and is designed to eliminate from

the trial disputes over police conduct not immedi-

ately relevant to the question of guilt. (citations

omitted). As codified, the rule is not a rigid one, for

under Rule 41 (e), ‘the court in its discretion may

entertain the motion [to suppress] at the trial or

hearing.’ This qualification proves that we are

dealing with carrying out an important social

policy and not a narrow, finicky procedural

requirement.”’ (emphasis added).

In Jones the Court was dealing with the old form of

Rule 41(e), the function of which is now included in Rule

12. However, the rationale of the Court is now lost. We are

still dealing with an important social policy, one that is in

fact tied closely with notions of due process and a fair trial.

In this case, the facts indicate an attempt by counsel to

file motions well in advance of trial. In fact, the trial itself

was continued for the very reasons given by counsel for

his inability to meet the Court’s motion deadlines. Why

the motion date was not also continued upon timely

request is a mystery. Given the trial continuance, there

remained a great deal of time in which motions could

have been prepared, heard, and condsidered all at once.

There would have been no burdensome administrative

problems thrust on the trial judge in these circumstances.

As set forth in the accompanying affidavits of petitioners’

counsel, the motions that were tendered for filing were

prepared as quickly as possible under the circumstances,

well in keeping with the policy of Rule 12 to make such

motions before trial. The cause of delay, as set out in the

affidavits, was counsel’s late entry in the case (several

days after arraignment), current involvement in another

trial, and other attendant problems.

The petitioners do not waive the rights intended to be

vindicate their motions. They did not wait until trial to

raise the issues contained therein, or cause any undue

surprise or disruption of the trial. Certainly, the “punish-

ment” (foreclosing petitioners’ rights) does not fit the

“crime” (tendereing motions for filing as soon as possible,

well in advance of trial, in keeping with Rule 12 (b)).

Petitioners’ rights to have their motions filed and

considered on the record are clear. The failure of the trial

judge in this instance amounts to an abuse of discretion

and denial of effective assistance of counsel, which can be

remedied by a writ of mandamus compelling him to

consider the motions as filed. No request is made to the

Court of Appeals to direct the District Court to grant the

tendered motions, only to consider them on the record and

to see that appellants receive a fair trial. The District

Court has a duty to oversee the federal judicial process

and to ensure a fair trial in every instance.

c.No other adequate remedy is available. If the

petitioners’ motions are not raised before trial, then they

may only be considered thereafter in the discretion of the

reviewing court, or in the discretion of the trial court

during trial. The petitioners intend to make the motions

that they are entitled to make as of right, and to this end

they have submitted their motions well before trial. If the

writ is not granted and the case proceeds to trial, the

petitioners’ rights have been all but lost. The scope of

review by the Court of Appeals will be minimal. In

addition, if the District Court grants petitioners’ motions,

there would be no need for trial at all.

Apparently, despite petitioners’ good faith beliefs in

this regard, the Tenth Circuit Court of Appeals has

decided that appeal is not available in this instance to

remedy the wrong that petitioners have suffered, and for

this reason, mandamus must be the proper avenue for

them to pursue.

4. Copies of the relevant motions and the Reporter’s

Transcript of the arraignment are attached hereto as

Exhibits “A”, “B” and “C”’, in support of this petition.

WHEREFORE, petitioners respectfully request that

the Court will grant their Petition for Mandamus and

compel the District Court to permit their pretrial motions

to be properly filed and considered on the record.

Dated this 9th day of April, 1980.

CLYDE R. MAXWELL

MORGAN C. TAYLOR

Attorneys for Petitioners

By CLYDE R. MAXWELL

APPENDIX “K”

MARCH TERM - APRIL 25, 1980

Before The Honorable William J. Holloway, Jr., The

Honorable Jean S. Breitenstein and The Honorable

Stephanie K. Seymour, Circuit Judges

THOMAS C. ERICKSON and

ANETA J. ERICKSON,

Petitioners,

VS.

LUTHER B. EUBANKS, UNITED STATES

DISTRICT JUDGE FOR THE WESTERN

DISTRICT OF OKLAHOMA,

Respondent.

No. 80-1394 (SEAL)

This matter comes on for consideration of the petition

for writ of mandamus filed in the captioned case.

Upon consideration whereof, it is ordered the petition

for writ of mandamus is denied.

HOWARD K. PHILLIPS, Clerk

By: Robert L. Hoecker

Chief Deputy Clerk

APPENDIX “pr”

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

Plaintiff,

VS.

THOMAS C. ERICKSON and

ANETA J. ERICKSON,

Defendants.

CASE NO. CR-79-184-F

* * * & x

ARRAIGNMENT

HAD BEFORE THE HONORABLE LUTHER B. EUBANKS

IN OKLAHOMA CITY, OKLAHOMA

ON DECEMBER 6, 1979

* * * & x

APPEARANCES:

MR. WILLIAM S. PRICE, Assistant United States

District Attorney, Federal Building, Oklahoma City, Ok-

lahoma, appearing on behalf of the Government.

MESSRS. GARLAND BLOODWORTH and ROBERT

B. SMITH, Attorneys at Law, of the Firm of BLOODWORTH,

SMITH, BISCONE, Hightower Building, Oklahoma City,

Oklahoma, appearing on behalf of the Defendants.

REPORTED BY:

STEVE MEADOR, C.S.R.

THE COURT: United States versus Thomas C. and

Aneta J. Erickson.

MR. BLOODWORTH: If the Court please, the De-

fendants are present.

THE COURT: Very well. Come forward, please. Now,

Mr. Smith, do you represent one of the Defendants?

MR. BLOODWORTH: No, if the Court please we are...

THE COURT: Well, you gentlemen are associated in

practice together.

MR. BLOODWORTH: Yes.

THE COURT: The Defendants I take it, you are

Thomas C. Erickson.

_ THE DEFENDANT: Yes, sir.

THE COURT: And the lady Aneta J. Erickson.

MR. BLOODWORTH: That is correct, Your Honor.

THE COURT: Now, let me inquire here, you folks

have likely received a copy of this Indictment, actually

there's two Indictments returned but it was found that

through an advertence the first one returned did not show

the statute, the citation of the statute under which the

Indictment was returned so it has been dismissed and a

new Indictment returned which I understand to be ident-

ical, I haven't read them but other than it does add the

section of the statute. Have you gentlemen checked that?

Now, vou have received a copy of it?

MR.BLOODWORTH: Yes, sir, and we waive it, Your

Honor.

THE COURT: Good. Thank you very much. I apprec- .

iate it. Is that all right with you folks that we just not read it,

you have read them and you know what you are charged

with —

DEFENDANT MR. ERICKSON: Yes, sir.

THE COURT: — is that right? Good. Appreciate it.

Saves time and accomplishes no good that I know of where

the plea is one of not guilty which is I am sure the plea

which will be entered here.

MR. BLOODWORTH: That is our plea, Your Honor.

THE COURT: However, I think the rule does require

that we state for the record the upper limits of the

punishment for those that are convicted of the violations

of the particular statute. Would you do that, Mr. Price?

MR. PRICE: Your Honor, as to Counts 1 through 6 in

which Count 1 charges Thomas C. Erickson and Count 2

Aneta Erickson and Count 3 Thomas Erickson and Count

4 Aneta Erickson, Count 5 Thomas Erickson, Count 6

Aneta Erickson, on each of those counts the maximum

punishment provided by law is imprisonment not more

than one year and a fine of not more than $10,000.00 in

addition to the civil tax and penalties due or both such fine

and imprisonment.

As to Counts 7 through 37 that charge — each charge

Thomas Henderson — I mean Thomas Erickson and in

addition Counts 38 through 43 charge Aneta Erickson, the

penalty on all of those counts are the same which is,

maximum penalty provided by law of a fine of not more

than three years — excuse me, a fine of not more than

$5,000.00 and imprisonment not more than three years or

both such fine and imprisonment as to each of those

counts.

As to the final two counts, Counts 44 and 45, maximum

penalty provided by law is a fine of not more than

$1,000.00 and imprisonment. not more than one year or

both such fine and imprisonment.

THE COURT: Well, I’m not going to take time to add

that up, if sombody’s curious, they may do so but quickly

with respect to Mr. Erickson, if he should be convicted on

all counts, you could get over 100 years here if they’re

_ added, you know, one to start, the other end. And I don’t

know about her, maybe some fourth or third of that, but,

anyhow, that’s something that your lawyers can advise

with you on. The Defendants each wish to enter a plea of

not guilty with respect to each count wherein you are

charged, is that right?

MR. BLOODWORTH: That is correct, Your Honor/

THE COURT: And that plea will be noted by the

Clerk. Your lawyers will be given ten days from today to

file any motions that are needed or any that may be

deemed proper, that is pursuant to our local rule that

lawyers are well acquainted with, 13-E.

MR. BLOODWORTH: If the Court please, we are

well acquainted with 13-E but there are 45 counts in this

Indictment and could we at this time orally ask for

additional time or do you want that in writing?

THE COURT: Well, why don’t you look at and see if

you can do it and the Court would be lenient there but not

beyond, now, let me explain, I have the docket during this

month and it’s not only in keeping with our local rule but

our relationship as between judges, I must clean these

motions all up and get the case ready for trial for Judge

Daugherty’s docket in January and he’s already set his

docket to start January 7th. So I’m not a liberty to extend

your motion filing a great deal because the Government is

to be given a little time. But certainly when you look into it

if you absolutely need more time let me know.

MR. BLOODWORTH: Thank you, Your Honor.

THE COURT: But within that — those perimeters,

you see, I got to get responses. And I’m going to apply the

rule at this moment and I have authority, you know, to

extend the time, either shorten or lengthen and in this case

lengthen, but I’m going to set them for oral argument for

Thursday December 27th. If, however, it becomes impera-

tive that you need some time then we will hear them

Thursday after New Years, whatever date that be, would

that be about the 5th, I guess, 3rd or 4th. But the

Defendants will remain free under the bond that you

posted with the Magistrate, yesterday t await trial.

MR. BLOODWORTH: Thank you, Your Honor.

THE COURT: All right.

CERTIFICATE

STATE OF OKLAHOMA :

COUNTY OF OKLAHOMA )

I, Steve Meador, Certified Shorthand Reporter within

and for the State of Oklahoma, do hereby certify that the

above and foregoing Arraignment was by taken in short-

hand and thereafter transcribed, and that the same was

taken on the 6th day of December, 1979, in the City of

Oklahoma City, County of Oklahoma, State of Oklahoma,

and that I amnotan attorney for or relative of either of said

parties, or otherwise interested in the even of said action.

In Witness Whereof, I have hereunto set my hand on this

29th day of January, 1930.

Steve Meador, C.S.R

within and for the State of Oklahoma

PROOF OF SERVICE

STATE OF CALIFORNIA )

SS.

COUNTY OF RIVERSIDE )

| am a citizen of the United States and a resident of the

County aforesaid; | am over the age of eighteen years and not

a party to the within entitled action: my business address is

612 N. Bush Street, Santa Ana, California 92701.

On May 5, 1980, | served the within Petition for Writ of

Certiorari on the interested parties in said action, by placing a

true Copy in each of 3 sealed envelopes, with postage thereon

fully prepaid, in the United States mail at Santa Ana,

California, addressed as follows:

WADE McCREE JAMES D. PATTON

Solicitor General of United States Attorney

The United States William S. Price

Department of Justice Assistant U.S. Attorney

Washington, D.C. 4434 Federal Building

Oklahoma City, Oklahoma 73102

HONORABLE LUTHER B. EUBANKS

U.S. District Judge

Western District of Oklahoma

U.S. Court House

Oklahoma City, Oklahoma 73102

| certify under penalty of perjury that the foregoing is true

and correct.

EXECUTED on May 5, 1980, at Santa Ana, California.

SX)

Jack Gallagher

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.