Petition — Johnson v. United States

IN THE MICHAEL RODAK, JR., CUERK

Supreme Court of the United States

é OCTOBER TERM, 1980

JOHN ROBERT JOHNSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA

WILLIAM A. BORDERS, JR.

Coss, BORDERS & WILLIAMS

1621 New Hampshire Avenue, N.W.

Washington, D.C. 20009

Phone (202) 387-1100

HERBERT O. REID, SR.

HOWARD UNIVERSITY SCHOOL OF LAW

2900 Van Ness Street, N.W.

Washington, D.C. 20008

Phone (202) 686-6663

Attorneys for Petitioner

Student Assistants:

Robert D. Clark

Clyde C. Rowe

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. Whether under Rule 104(a), Fed. R. Evid.,

preliminary questions of conditional relevancy regarding

co-conspirators’ out of court declarations are to be

resolved solely by the judge.

2. Whether petitioner’s sixth amendment right to

counsel was violated by the admission of incriminating

statements he made to his cellmate, an undisclosed

government informant, after petitioner had been in-

dicted and incarcerated.

3. Whether the cumulative effect of the errors com-

mitted below was such a serious denial of petitioner’s

due process as to warrant reversal.

TABLE OF CONTENTS

ES Se ne ae

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Uy & te es Se bin'a'y ok s u's vs © ye bbe poe’

EI eo ee rr

REASONS FOR GRANTING THE WRIT ...............0005:

eG NEG pee th bese éecceeeeesns

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iv

TABLE OF AUTHORITIES

CASES: PAGE

Berger v. United States, 295 U.S. 78 ........0.0ceee 16, 17

Bruton v, United States, 391 U.S. 123.............005. 17

Delli Paoli v. United States, 352 U.S. 232 ............. 11

Glasser v. United States, 315 U.S. 60 .......... cece 9

Kotteakos v. United States, 328 U.S. 750............ 17, 18

Krulewitch v. United States, 336 U.S. 440 ......... ee

Massiah v. United States, 377 U.S. 201..............4.. 11

Monroe v. United States, 234 F.2d 49......... cece eee 13

Springer v. United States, 388 A.2d 846 .............. 13, 14

United States v. Henry, 48 U.S.L.W. 4703 (June 16,

Ne iN Ls wath in siaeraehe we §, 12

United States v. Lemonakis, 485 F.2d 941. ............ 13

United States v. Macklin, 573 F.2d 1046............... 9

United States v. McMillan, 508 F.2d 101 .............. 14

United States v. Onori, 535 F.2d 938............005. 14, 15

STATUTES:

Federal Rules of Evidence 104(a) and (b) ............ 2, 11

MISCELLANEOUS:

‘*Redbook,’” Young Lawyers Section, D.C. Bar,

Criminal Jury Instructions (3d ed. 1978)........... 8

Kessler, The Treatment of Preliminary Issues of Facts in

Conspiracy Litigations: Putting the Conspiracy Back

into the Co-Conspirator Rule, 5 Hofstra L. Rev. 77

SPOON ss \ so cub anehun ue derats a Saban eiann esa chs 10

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

No.

JOHN ROBERT JOHNSON,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA

The petitioner, John Robert Johnson, respectfully

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the

District of Columbia in this case.

OPINION BELOW

The judgment of the Court of Appeals was entered

on March 4, 1980. United States v. John Robert

Johnson, No. 78-1419 (D.C. Cir. March 4, 1980) (App.

A. infra 1a-37a). On July 11, 1980, the Court of Ap-

peals issued an order amending the opinion entered on

March 4, 1980. (App. B infra 38a-40a).

2

JURISDiCTION

The judgment of the court of appeals was entered

on March 4, 1980. Petitioner’s timely petition for

rehearing was denied on March 27, 1980. Respondent’s

timely petition for rehearing was denied on July 11,

1980. Also on July 11, 1980, the court of appeals

issued an order amending the opinion entered on March

4, 1980. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATUTES INVOLVED

1. Rule 104 of the Federal Rules of Evidence pro-

vides in pertinent part:

Rule 104. Preliminary Questions

(a) Questions of admissibility generally.

—Preliminary questions concerning the qualification of

a person to be a witness, the existence of a privilege, or

the admissibility of evidence shall be determined by the

court, subject to the provisions of subdivision (b). In

making its determination it is not bound by the rules of

evidence except those with respect to privileges.

(b) Relevancy conditioned on fact.--When the

relevancy of evidence depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or sub-

ject to, the introduction of evidence sufficient to sup-

port a finding of the fulfillment of the condition.

STATEMENT

In 1977, the government conducted an extensive in-

vestigation of a suspected heroin sales ring operating in

Washington, D.C. The investigation, conducted by local

and federal undercover agents with the assistance of

paid informants, made use of concealed tape recorders

and video taping of street activities. It led to the ex-

posure of and cracked the so-called ‘‘Stampede

Organization,’’ a lucrative and financially successful

retail heroin sales operation. The result was a 23 count

indictment returned against eight defendants, and,

ultimately convictions of six.'

The indictment, returned October 11, 1977, charged

all defendants with conspiracy to distribute heroin in

violation of 21 U.S.C. §846. Each appellant was also

named in one or more of the substantive counts charg-

ing distribution of or possession with intent to distribute

narcotics in violation of 21 U.S.C. §841(a) and 18

U.S.C. §2. The substantive counts closely mirrored the

25 overt acts in the conspiracy count, covering transac-

tions from April 5 to September 29, 1977. Following ten

days of trial and seven days of deliberations, the jury

convicted all appellants of conspiracy and convicted all

but appellant Arthur Watson, of one or more substan-

tive counts.’ Petitioner was convicted of the conspiracy

count and 12 other substantive counts.

Petitioner sought reversal of his conviction on a

number of grounds. He contested the propriety of the

jury following audio tapes with government prepared

' The appellants before the United States Court of Appeals for

the District of Columbia Circuit were: John R. Slade; Odell

Johnson, Jr.; Arthur Waston, a/k/a Speed; George N. Marshall;

David Redd, a/k/a Slim; and John R. Johnson, a/k/a Stampede

(Odell and John R. Johnson are brothers); nos. 78-1333, 78-1409 to

1412, 78-1419 respectively.

7 Count 23 of the indictment charged appellants Stampede

Johnson and Odell Johnson with conducting a continuing criminal

enterprise in violation of 21 U.S.C. §848. Both were acquitted

thereunder.

4

and supplied transcripts which had not been reviewed

for accuracy by the court at any time. Seven of the nar-

cotics transactions charged in the indictment were

recorded on tape machines concealed on the informants.

In order to render the recorded conversations com-

prehensible in court, technicians at the Federal Bureau

of Investigation (FBI) electronically enhanced the

audibility of the voices, and Detective Kenneth Johnson,

with the aid of informants, made transcripts of the con-

versations that identified the speakers.

Appellants moved to suppress the transcripts, alleg-

ing that ‘‘it is impossible for the parties herein to agree

on what a lot of the spoken words are, and the best

evidence of same is the actual tape recordings itself....’’

The prosecutor represented that the transcripts were ac-

curate, that they aided in understanding the recordings,

and that he had invited appellants to assist in prepara-

tion of a mutually agreeable version.

At trial, Detective Johnson testified that he col-

lected the tapes as the informants returned from their

assignments, stored them with the Drug Enforcement

Administration’s (DEA’s) evidence custodian and turned

them over to the FBI for electronic enhancement.

Detective’ Johnson then’ drafted preliminary

transcripts from the recordings and had the various in-

formants compare the enhanced recordings with the

preliminary transcripts for accuracy.

Copies of the final transcripts were distributed to

the jury with the admonition that the tapes rather than

the transcripts governed, even though it was generally

agreed that the tapes were inaudible. (App. A, at 15).

The recordings were played for the jury without having

been initially reviewed at pretrial and the jurors were

5

allowed to follow the transcripts. The transcripts were

never admitted into evidence.

Petitioner also alleged that repeated references by

government witnesses to the ‘‘Stampede Organization’’

or to the ‘‘organization’’ denied him a fair trial, since

the references implied the existence of undisclosed proof

of such an organization having petitioner as a member,

a prejudicial implication allegedly not cured by the trial

judge’s instructions to the jury to ignore the references.

Also challenged, inter alia, was the conspiracy in-

struction given to the jury. Rather than using the stan-

dard instruction that a defendant’s membership in a

conspiracy may be proven only by his own acts and

statements versus those of co-defendants, the judge in-

structed the jury that in deciding whether a particular

defendant on trial was a member of a conspiracy it

should consider ‘‘all the evidence.’’

Although not raised below, there are serious doubts

as to the propriety of the testimony of prosecution

witness Thurston Shrader in light of this Court’s recent

decision in United States v. Henry; 48 U.S.L.W. 4703,

(U.S. June 16, 1980) (No. 79-121). Prosecution witness

Thurston Shrader testified that he was an inmate at the

D.C. Jail and became friendly with petitioner several

weeks prior to trial. Shrader told petitianer that he had

studied law and was somewhat knowledgeable in the

subject. As a result, petitioner asked him to review some

legal points for him. Shrader believed that petitioner’s

statements could be of use to him (Shracler) so he sum-

marized their conversations on the blank pages of a

book he was reading. The book contained conversations

occurring between December 22, 1977 and January 11,

1978.

6

On January 5, 1978, Shrader wrote to the United

States Attorney for the District of Columbia indicating

that he had information about petitioner and, if the in-

formation was deemed valuable, he was willing to

cooperate with the government to help himself out of

jail (Tr. 1482-1483). On January 6, 1978, he met with

Detective Kenneth Johnson and Assistant U.S. At-

torneys Leibowitz and Brewer. On the above date,

Shrader gave a statement recorded by a stenographer. It

appeared that much of the damaging information he

testified that petitioner had related to him was not in his

recorded statement of January 6, 1978. (Tr. 1488, 1489,

1490, 1491). The book containing notes of the conversa-

tions between petitioner and Shrader during the

December 22, 1977 to January 11, 1978 period was not

turned over to authorities until January 11, 1978. Ap-

parently, the contents of many of the conversations had

not been elicited until after Shrader’s meeting with the

government. (Tr. 1358, 1498, 1490, 1491). Between

January 6, 1978 (the date Shrader met with the pro-

secutors) and January 11 (when the book was turned

over to the prosecutors), Shrader had conversations with

petitioner Johnson. (Tr. 1498).

Upon conviction in the United States District

Court, Petitioner Johnson was sentenced to varying con-

secutive and concurrent sentences aggregating to thirty

(30) to ninety (90) years imprisonment and a fine of

$150,000.

The United States Court of Appeals for the District

of Columbia Circuit held, on March 4, 1980, that none

of the alleged errors, considered alone or cumulatively,

warranted a reversal of any of the convictions save the

conspiracy conviction of appellant Watson in that the

Court found that he was improperly impeached by a

7

misdemeanor firearms conviction not involving

dishonesty.

Petitioner’s and Respondent’s petitions for rehear-

ing were denied on March 27, 1980 and July 11, 1980

respectively. Also on July 11, 1980, the court of appeals

issued orders amending various sections of the opinion

of the court and the concurring opinion of Senior Cir-

cuit Judge Bazelon.

REASONS FOR GRANTING THE WRIT

This case presents an important question as to the

scope of Rule 104, Fed. R. Evid. Petitioner submits that

Rule 104 does not clearly resolve the ambiguity with

regard to whether the judge or the jury should decide

the preliminary questions dealing with co-conspirators’

out of court declarations. Under subdivision (b) of the

Rule (104) such preliminary questions might be couched

in terms of relevancy and be for the jury. On the other

hand, if they are considered as matters of competence,

as the court of appeals concluded, the determination

would be for the judge under subdivision (a) of the rule.

Thus, this court should clarify the ambiguity in this

rule.

Further, review by this Court is warranted not only

by the importance of the questions presented but also

because the government violated petitioner’s sixth

amendment right to the assistance of counsel under the

principles enunciated by this Court in United States v.

Henry, 48 U.S.L.W. 4703 (1980) and Massiah v. United

States , 377 U.S. 201 (1963). The proper application of

the Massiah and Henry rules that govern post-

indictment confrontations between government agents

and the accused is of substantial importance. Therefore,

it is imperative that prosecutors and the courts unders-

tand the criteria governing admissibility of incriminating

statements made by the accused to undercover govern-

ment informants.

Petitioner urges this Court to grant this writ in

order to convert a miscarriage of justice where the court

of appeals acknowledged errors but sustained the judg-

ment of conviction.

ARGUMENT

I. The Court Of Appeals’ Interpretation Of Rule

104(a) Fed. R. Evid., Is In Conflict With Ap-

plicable Principles Previously Enunciated By

This Court

In its final charge, the court gave the following con-

spiracy instruction proposed by the government regar-

ding evidence the jury should consider when determining

whether a particular defendant was a member of the

alleg*d conspiracy:

Now, as to participation in the conspiracy. Once

satisfied that the conspiracy charged existed, you

must ask yourself who its members were. In

deciding whether a defendant on trial before you

was a member of the conspiracy, you should con-

sider whether on all the evidence that defendant

knowingly entered the conspiracy and was a willing

participant. (Tr. 2140) (Emphasis added).

By giving this charge, the court deviated from the

standard time-tested conspiracy instruction in the ‘‘Red-

book,’’ Young Lawyers Section, D.C. Bar, Criminal

Jury Instructions, 302 (3d ed. 1978). The Redbook in-

struction that defense counsel desired provides in perti-

nent part, as follows:

In determining ...whether [the] [a particular]

defendant was knowingly a member of the con-

9

spiracy, if such a conspiracy existed, you may con-

sider only his own acts or statements. A defendant

cannot be bound by the acts or statements or other

participants unless or until it is established that a

conspiracy existed and that the defendant was one

of its members. (Emphasis added).’

It is submitted that the instruction given by the

court in its final charge was defective since it ‘‘allows

the jury to consider hearsay statements of a co-

conspirator in determining the membership of a par*

ticular defendant in conspiracy.”’ (App.A at 25-26) This

procedure which allows hearsay to “‘lift itself by its own

bootstraps’’ has long been rejected by the courts. See

e.g., Glasser v. United States, 315 U.S. 60, 74-75 (1942);

United States v. Macklin, 573 F.2d 1046, 1048 (8th Cir.

1978).

In conspiracy trials there is real danger that the jury

might transfer, consciously or unconsciously, evidence

which is only admissible against one defendant to the

other defendant(s). This court in Glasser, supra,

recognized that it is extremely important that those

safeguards be made as impregnable as possible when it

stated that ‘‘[dJeclarations [of co-conspirators] are ad-

missable. . .only if there is proof aliunde that the [the

defendant] is connected with the conspiracy. Otherwise,

hearsay would lift itself by its own bootstraps to the

level of competent evidence.’’ (Emphasis original). As

one commentator noted, ‘‘[b]y charging the jury that

they may not consider co-conspirators’ statements until

they have found independent proof of the existence of

the conspiracy, the policy that led to this corroboration

requirement is fulfilled. The charge communicates to the

’ A similar instruction appears in Devitt & Blackmar, Federal

Jury Practice and Instructions, §2705 (3d ed. 1977).

10

jury the reluctance that exists, as a matter of law, in

crediting this evidence. It tells them that the courts

recognize its potential unreliability. It alerts them to the

danger of unduly trusting the statements.’’ Kessler, The

Treatment of Preliminary Issues of Facts in Conspiracy

Litigations: Putting the Conspiracy Back Into the Co-

conspirator Rule, 5 Hofstra L.Rev. 77, 96 (1976)

{hereinafter cited as Kessler].

The court of appeals in its affirmation of peti-

tioner’s conviction noted that ‘‘[s]ince the 1976 Revision

of the Federal Rules of Evidence, most of the circuits

have expressly held that the judge, not the jury, is to

determine the admissibility of alleged co-conspirator

statements. These courts have treated the question of

admissibility of co-conspirator statements under Rule

801(d)(2)(E), Fed. R. Evid., as one of competence under

Rule 104(a), requiring the court to make the preliminary

determination on the admissibility of potentially pre-

judicial evidence.’’ (App. B, at 1); (App. A, at 26);

(citation omitted).

The court of appeals went on to say that it recently

joined this trend. /d. This construction of Rule 104(a)

by the court of appeals is repugnant to the Rules’ policy

of preserving the parties’ right to a jury determination

on the fundamental issues of the litigation. See, Kess/er,

supra at 89. Moreover, such an interpretation was un-

warranted and unauthorized. Under Rule 104%), Fed.

R. Evid., preliminary questions of conditional relevancy

regarding co-conspirators out of court declarations must

be resolved by the jury. The Advisory Committee on the

Proposed Rules recognized that these are appropriate

questions for the jury when it observed that ‘‘[i}f

preliminary questions of conditional relevancy where

11

determined solely by the judge. .., the functioning of

the jury as a trier of fact would be greatly restricted and

in some cases virtually destroyed. These are appropriate

questions for the juries.’’ Federal Rules of Evidence

104, Notes of Advisory Committee on Proposed Rules

at 41 (1975).

Furthermore, the petitioner has a right to be judg-

ed, first, by his own acts. Thus, with all deference, peti-

tioner disagrees with the conclusion below that the

permeating error did ‘‘not have a cumulative prejudicial

effect requiring reversal of petitioner’s conviction.”’

(App. A at 33.) Particularly, in the light of the fact the

lead conspiracy count — of which petitioner was con-

victed — was also the key to many of petitioner’s con-

victions on the substantive counts. Similarly, it is no

answer to suggest that here the petitioner’s ‘‘guilt was

overwhelming, substantially in the form of tapes’’ and

other uninfected testimony against him. (App. A, at 28).

As Mr. Justice Frankfurter observed, ‘‘that is the best

reason for trying him freed from the inevitable un-

fairness of being affected by testimony not admissible

against him.’’ Delli Paoli v. United States, 352 U.S.

232, 248 (1956) (Frankfurter, J., dissenting).

The interpretation of Rule 104(a), Fed. R. Evid., by

the lower court is such a departure from the accepted

and usual allocation of functions between judge and

jury ‘‘as to call for an exercise of this Court’s power of

supervision’’ to correct this miscarriage of justice.

II. The Petition Should Be Granted To Correct

The Denial Of Petitioner’s Sixth Amendment

Rights

In Massiah v. United States, 377 U.S. 201 (1964),

this Court held that Massiah was denied ‘‘the basic pro-

12

tections of .. .[the Sixth Amendment] when there was

used against him at his trial evidence of his own in-

criminating words, which federal agents had deliberately

elicited from him after he had been indicted and in the

absence of his counsel.’’ /d. at 206. Last term in United

States v. Henry, supra, this Court applied Massiah and

concluded that the admission at trial of incriminating

statements made by an indicted, in-custody defendant to

his cellmate, who was a paid government informer,

violated the defendant’s sixth amendment right to

counsel. In that case the Court noted that three factors

were important in deciding whether Henry’s in-

criminating statements to the informant Nichols were

within the meaning of Massiah:

First, Nichols was acting under instructions as a

paid informant for the government; second Nichols

was ostensibly no more than a fellow inmate of

Henry; and third, Henry was in custody and under

indictment at the time he was engaged in conversa-

tion by Nichols. (48 U.S. L.W. at 4705).

In the instant case, it is undisputed that petitioner

Johnson was unaware of Shrader’s role as a government

informant. Also ‘petitioner was incarcerated and indicted

at the time he was engaged in conversation by Shrader.

Thus, the last two factors that were considered relevant

in Henry are present in this case. Similarly, in our view,

although Shrader did not receive pecuniary payments for

his information, it would be incorrect to say that he was

not a ‘‘paid informant for the government.’’ Jail in-

mates who offer to report to authorities statements

made by fellow inmates generally expect payment in the

form of monetary payments or lenient treatment in their

own cases. In either case, there is a quid pro quo ar-

rangement. Therefore, although Shrader was motivated

by a desire to shorten his jail time by producing

13

‘valuable’ information, petitioner submits that he was

a ‘“‘paid informant for the government’’ within the

meaning of Henry. Accordingly, the petitioner’s sixth

amendment right to counsel was violated when the

government proved incriminating statements made to his

cellmate Shrader, an undisclosed government informant,

after his indictment and in the absence of counsel. In

addition, the petition should be granted in order to

establish the perimeters of Henry.

Ill. The Court Should Grant Certiorari To Prevent

A Serious Miscarriage Of Justice In Light Of

This Court’s Supervisory Role Over The

Federal Judicial System

a. The procedure utilized by the courts below allow-

ing the jury to listen to largely inaudible audio recor-

dings with the aid of government prepared transcripts

which had not been admitted into evidence was shock-

ingly wrong and a blantant denial of due process.

There is no doubt that large portions of the recor-

dings were inaudible, even after electronic enhancement

by the FBI. The court of appeals below stated that

‘*{t}he judge himself commented at times that he could

not understand a word of several sections.’’ (App. A, at

15). The correct procedure under these circumstances

would have been for the trial judge to hear the recor-

dings out of the presence of the jury in order to rule on

objections raised to their admissibility. See, e.g.,

Monroe v. United States, 234 F2d. 49, 55 cert. denied,

352 U.S. 873 (1956); United States v. Lemonakis, 484

F.2d 941, 949 (1973), cert. denied, 415 U.S. 989 (1974);

Springer v. United States, 388 A.2d 846, 853 (D.C. Ct.

App. 1978). The procedure followed below was clearly

erroneous but the court of appeals stated that lack of

?%

14

such a preliminary examination is not in itself grounds

for reversal. (App. A, at 15).

Another more serious denial of petitioner’s due pro-

cess was the juror’s use of government prepared

transcripts without such transcripts having been admit-

ted into evidence. The jury made extensive use of the

transcripts in that the recordings were of such poor

quality. Additionally, the transcripts were never verified

by the court as being an accurate description of what

was on ‘he recordings. It has been held that the proper

procedure to insure accuracy is to have the prosecutor

and defense attorneys stipulate to a transcript. See, e.g.,

United States v. McMillian, 508 F.2d 101, 106 (8th

Cir.), cert. denied, 421 U.S. 916 (1974); United States v.

Onori, 535 F.2d 938, 948 (Sth Cir. 1976). When it can-

not be agreed as to what is on tape, the second alter-

native is for a trial court to make a pre-trial determina-

tion of accuracy by reading the transcript against the

tapes. Springer v. United States, 388 A.2d at 853-54. A

third alternative is to present the jury with two

transcripts, containing both sides’ versions, and let the

jury determine which is more accurate. United States v.

Onori, 535 F.2d at 948-49. The court of appeals in-

dicated that the failure of the trial court to review the

transcripts was not a reversible error in that the defense

counsel was invited to submit their own transcripts.

Because of the poor quality of the recordings, the

transcripts were the real evidence in the case against

petitioner. Therefore, to require petitioner to submit

transcripts was an invitation for him to give independent

evidence against himself.

Moreover, because the recordings were so poor, the

transcripts became the evidence upon which the jurors

15

relied in deciding to convict petitioner. Yet, as

aforementioned, the transcripts was never admitted into

evidence. In Onori (supra) it is stated:

It is therefore incorrect to think of transcripts as

simply an ‘‘aid’’ ... not as evidence of any kind.

They are evidence and, like other evidence, may be

admitted for a ‘imited purpose only. That purpose

... [is] primarily to establish the identity of the

speakers at any given time. /d. at 947.

In the instant case, the transcripts were not limited to

the identification of the speakers but served as the

primary evidence upon which the jurors relied in convic-

ting petitioner. The jurors use of the transcript in that

way, especially since such was never admitted into

evidence, was a shocking deviation from the norm and a

blatant denial of due process.

b. The petitioner was denied a fair trial when the

trial court did not declare a mistrial after the prosecutor

continuously elicited inadmissible and prejudicial hear-

say statements from several government witnesses.

In this case the government was obligated to prove

that petitioner John Johnson was a member of an

organization selling heroin. The prosecutor knew that it

was important to nail down the lead defendant, peti-

tioner Johnson, as the head of an illegal organization in

order to flush out his case against both petitioner and

the lesser co-defendants. All of petitioner’s convictions

on the substantive counts involved purchases from the

organization, although petitioner was not physically pre-

sent at, or if present did not participate in many of the

transactions. Thus, petitioner’s conviction on the lead

conspiracy count was also the key to many of peti-

tioner’s convictions on the substantive counts.

16

More than 45 years ago this Court noted in Berger

v. United States, 295 U.S. 78 (1935) that ‘‘[ijt is as

much the duty of the United States attorney to refrain

from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate

means to bring about a just one.’’

The prosecutor in the instant case continuously

elicited inadmissible and prejudicial hearsay statements

from at least 4 of his witnesses after being admonished

on several occasions by the court of the consequences

for bringing such improper evidence into the trial.

Petitioner’s motion for a mistrial! was denied in

each instance. (Tr. 643, 719, 945-946). As was noted by

the court of appeals, ‘‘[t]he trial court’s several instruc-

tions to the prosecutor to avoid a ‘worrisome situation,’

(Tr. at 311); ‘to be a little more careful,’ (Tr. at 654);

and to stop ‘over-trying the case’ (Tr. at 657), may have

served to limit references to an ‘organization,’ but ob-

viously did not solve the problem.’’ (App. A, at 22

n.17). As a result of the prosecutor’s deliberate illegal

tactic the record is replete with references by the several

government witnesses to ‘‘Stampede’s Organization’’ or

‘*Stampede’s dope.”’ (See, e.g., Tr. 263, 267, 370, 617,

703, 938, 944). These misstatements are such that their

natural effect is to prejudice petitioner’s substantial

rights. The court of appeals acknowledged the highly

prejudicial nature of these statements when it noted that

‘fijt is indisputable that the street term ‘‘Stampede’s

Organization’’ was the °quivalent of the legal term

‘‘conspiracy.’’ Nor could one dispute that the ultimate

question for the jury was whether such an ‘‘organization

existed.’’ (App. A, at 22).

The trial judge, it is true, instructed the jury to

disregard the misstatements. (Tr.. 973-974, 2162). It is

17

submitted, however, that because of the enormous

amount of inadmissible evidence that was admitted

which went to the very heart of the prosecution’s case,

the curative instruction was insufficient to cure the er-

ror. In these circumstances, ‘‘[i]t is impossible that the

evil influence upon the jury of these acts of misconduct

was removed by such mild judicial action as was

taken.’’ Berger v. United States, 295 U.S. 78 (1935). Ac-

cordingly, the proper remedy should have been the gran-

ting of a mistrial. As Mr. Justice Jackson observed:

‘‘The naive assumption that prejudicial effects can

be overcome by instructions to the jury ..., all

practicing lawyers know to be unmitigated fiction.’’

Krulewitch v, United States, 336 U.S. 440 (1949).

Cf. Bruton v, United States, 391 U.S. 123 (1968).

Moreover, it is submitted that applying the standard

applied in Kotteakos v. United States, 328 U.S. 750, 765

(1946), we ‘‘cannot say with fair assurance, .. . that the

judgment was not substantially swayed by the error.’’

c. The cumulative effect of all of the errors com-

mitted in the trial court warrants the Court to grant the

petition in order to prevent a serious miscarriage of

justice.

Senior Circuit Judge Bazelon wrote a concurring |

opinion in United States v. John Robert Johnson, (App.

A, concurring opinion at 1) because he felt ‘*. . . that

the number of errors raised on appeal warrants com-

ment,’’ In that opinion, he states:

Here the prosecution played nearly inaudible tapes

for the jury and had the jury read transcripts

prepared by the government but never admitted into

evidence. Prosecution’s witnesses made repeated

references to the ‘‘organization’’, although a major

issue at trial was the existence of a conspiracy. The

|

prosecution also successfully proposed a conspiracy

instruction directing the jury to examine ‘‘all the

evidence’, but there is no indication that the trial

judge made a determination to admit the co-

conspirator hearsay statements included in that

evidence.’ (App. A, concurring opinion at 1) (App.

C at 1, Amended concurring opinion).

As pointed out, the procedure in the trial court was

rife with errors; yet the trial court, as well as the court

of appeals, opined that none of the errors in themselves

were of such gravity as to warrant a reversal of peti-

tioner’s conviction, In determining whether erroneous

conduct prejudiced the minds of the jury, this court

stated in Kotteakos v. United States, 328 U.S. 750:

But if one cannot say, with fair assurance after

pondering all that happened without stripping the

erroneous action from the whole, that the judgment

was not substantially swayed by the error, it is im-

possible to conclude that substantial rights were not

affected. The inquiry cannot be merely whether

there was enough to support the result, apart from

the phase affected by the error. It is rather, even

so, whether the error itself has substantial in-

fluence. If so, or if one is left in grave doubt, the

conviction cannot stand.’’ /d. at 765.

lt is strongly urged that the grant of certiorari is ap-

propriate in the instant case for the appellate decision

has deviated from the proper course of judicial pro-

ceedings or has so condoned such a course by a lower

court, as to require an exercise of this Court’s power of

supervision,

19

CONCLUSION

The petition for a writ of certiorari shoqld be

granted.

Respectfully submitted,

WILLIAM A, BORDERS, JR.

Coss, Borpers & WILLIAMS

1621 New Hampshire Avenue, N\W.

Washington, D.C. 20009

Phone (202) 387-1100

HERBERT O, REID, SR.

HOWARD UNIVERSITY SCHOOL OF LA

2900 Van Ness Street, N.W.

Washington, D.C, 20008

Phone (202) 686-6663

Attorneys for Petitioner

Student Assistants:

Robert D. Clark

Clyde C, Rowe

APPENDIX

APPENDIX A

Notice: This opinion is subject to .ormal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users ure requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1333

UNITED STATES OF AMERICA

Vv.

JOHN ROSCOE SLADE, a/k/a “SLAVE”,

APPELLANT

No. 78-1409

UNITED STATES OF AMERICA

Vv.

ODELL JOHNSON, JR.,

APPELLANT

No. 78-1410

UNITED STATES OF AMERICA

Vv.

ARTHUR WATSON, JR., a/k/a/ “SPEED”,

APPELLANT

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

No. 78-1411

UNITED STATES OF AMERICA

Vv.

GEORGE NORMAN MARSHALL, a/k/a/ “LITTLE GEORGE”,

APPELLANT

No. 78-1412

UNITED STATES OF AMERICA

Vv.

Davip REpD, a/k/a/ “SLIM”,

APPELLANT

No. 78-1419

UNITED STATES OF AMERICA

Vv.

JOHN ROBERT JOHNSON, a/k/a/ “STAMPEDE”,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(D.C. Criminal 77-00632)

| ye at 0

Argued January 4, 8 ve ane?

Decided March 4, 1980\ 4"

3a

Thomas Lumbard, (appointed by this Court), for appel-

lant in No. 78-1333.

Robert A. W. Boraks, (appointed by this Court), for

appellant in No. 78-1412.

William H. Jeffress, Jr., (appointed by this Court), for

appellant in No. 78-1410 and 78-1411.

David Niblack, for appellant in No. 78-1409.

Gordon C. Rhea, Assistant United States Attorney with

whom Earl J. Silbert, United States Attorney, John A.

Terry, Peter E. George and Barry L. Leibowitz, Assistant

United States Attorneys were on the brief, for appellee.

BEFORE: BAZELON, Senior Circuit Judge; WILKEY, Cir-

cuit Judge, and PARKER,” United States Dis-

trict Judge for the District of Columbia

Opinion for the Court filed by District Judge PARKER.

Concurring opinion filed by Senior Circuit Judge BAZE-

LON.

PARKER, District Judge:

In 1977, the government conducted an extensive investi-

gation of a suspected heroin sales ring operating in Wash-

ington, D.C. The investigation, conducted by local and

federal undercover agents with the assistance of paid

informants, made use of concealed tape recorders and

video-taping of street activities. It led to the exposure of

and cracked the so-called “Stampede organization,” a

lucrative and financially successful retail heroin sales

operation. The result was a 23 count indictment re-

turned against eight defendants and, ultimately, multiple

convictions of six. The appellants currently before this

Court are John R. Slade; Odell Johnson, Jr.; Arthur Wat-

son, aka Speed; George N. Marshall; David Redd, aka

Slim; and John R. Johnson, aka Stampede (Odell and

* Sitting by designation pursuant to 28 U.S.C. § 292(a).

4a

John R. Johnson are brothers) ; Nos. 78-1333, 78-1409 to

1412, 78-1419, respectively.'

The indictment, returned October 11, 1977, charged all

defendants with conspiracy to distribute heroin in vio-

lation of 21 U.S.C. § 846. Each appellant was also named

in one or more of the substantive counts charging distri-

bution of or possession with intent to distribute narcotics

in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. The

substantive counts closely mirror the 25 overt acts in the

conspiracy count, covering transactions from April 5 to

September 29, 1977. Following ten days of trial and seven

days of deliberations, the jury convicted all appellants of

conspiracy and convicted all but appellant Arthur Watson,

of one or more substantive counts. A chart listing the

counts, the verdicts, and the relevant evidentiary tapes is

attached as Appendix A.*

Appellants seek reversal of their convictions on four

major grounds. They contest the propriety of the jury

following audio tapes with government-prepared tran-

scripts which had not been reviewed for accuracy by the

court at pretrial. The trial judge afforded defense counsel

the opportunity to submit alternative transcripts, and

instructed the jurors that their independent understand-

ing of the tapes should supersede the transcripts. Second,

they challenge the trial judge’s decision barring defense

1 Defendant Mary Ann Jones, aka Mary Ann Brown, was

not convicted of any count. Defendant Donald Larry Baxter

was reported a fugitive and apparently died prior to trial.

2 Count 23 of the indictment charged appellants Stampede

Johnson and Odell Johnson with conducting a continuing

criminal enterprise in violation of 21 U.S.C. § 848. Because

both were acquitted thereunder, the appeal does not address

Count 23.

’ This chart was prepared by appellate counsel for Watson

and Marshall and was referred to by both appellants and

government counsel in the briefs. ‘

Sa

counsel from using the Saint Elizabeth’s psychiatric hos-

pital records of a key government witness, who was re-

leased from the hospital in 1974. Third, they allege that

repeated references by government witnesses to the “Stam-

pede organization” or the “organization” denied them

a fair trial, since the references implied the existence of

undisclosed proof of such an organization having appel-

jants as members, a prejudicial implication allegedly not

cured by the trial judge’s instructions to the jury to

ignore the references. Finally, they challenge the con-

spiracy instruction given to the jury. Rather than using

the standard instruction that a defendant’s membership

in a conspiracy may be proven only by his own acts and

statements, versus those of codefendants, the judge in-

structed the jury to determine the existence of a con-

spiracy “‘on all the evidence.” Various other grounds for

reversal are asserted by particular appellants.

For the reasons outlined in this opinion, none of these

alleged errors, considered alone or cumulatively, warrants

reversal of the several convictions. The same is true for

the matters raised by individual appellants, with one

exception, the Appellant Watson. We reverse the con-

spiracy conviction of Arthur Watson,‘ finding that he was

impermissibly impeached by a misdemeanor firearms con-

viction not involving dishonesty.

In all other respects, we affirm the defendants’ con-

victions.

I.

THE EVIDENCE AND PROCEEDINGS AT TRIAL

The government’s witnesses clearly identified all appel-

lants as members of a heroin-distribution ring managed

principally by John R. “Stampede” Johnson and his

* Appellant Watson was acquitted of all four substantive

distribution counts with which he was charged.

6a

brother Odell Johnson. The ring operated in the 1800

block of 7th Street, N.W., near 7th and T Streets, a

neighborhood described as notorious for drug activity.

The so-called “Stampede organization” displayed a degree

of imagination with members described as sometimes

secreting in and dealing heroin from hollowtipped walking

canes. On an average day, sales were estimated at as

much as $2400 an hour. (Tr. at 262, 771).

The government’s investigation of the suspected drug

ring began in April and continued to September, 1977.

The key figures in the investigation were detective

Anthony Patterson and agent Donnie Smith. They were

supervised by Detective Kenneth Johnson of the Metro-

politan Police Department. Patterson was a seasoned

undercover policeman familiar with the 7th and T Streets

area and a member of the city police force. Donnie

Smith was an experienced Drug Enforcement Administra-

tion (DEA) agent. They relied heavily on two paid in-

formants, Allen Whaley and Charles Ward. These four

were the government’s chief witnesses.

Both Whaley and Ward had histories of drug addiction

together with extensive criminal records associated in

large part with their drug addiction. The evidence showed

that Whaley’s use of narcotics continued through the

government’s investigation which led to the indictment of

the appellants. Ward, on the other hand, denied narcotic

drug usage in recent years.

A. Testimony of Detective Patterson and the Inform-

ant Whaley

Detective Anthony Patterson was introduced into the

narcotic operations through the informant Whaley.

Through this contact he met and dealt with Odell Johnson

and Stampede Johnson. Patterson’s testimony clearly

established that from early April through April 25, 1977,

Ta

he had direct personal contact with the two appellants.

Through them he arranged for and made narcotic pur-

chases, both directly and indirectly. Through one or more

of those appellants he negotiated and arranged for a

series of transactions. The detective’s testimony sup- .

ported counts 2 through 6 of the indictment and the

criminal involvement of the two Johnson brothers. In

the course of his testimony Patterson testified that fol-

lowing one heroin purchase, Bolden remarked that they

would “soon see how good Stampede’s dope is.”

Stampede Johnson’s counsel moved for a mistrial based

on the detective’s testimony recounting several such state-

ments of Bolden and Patterson concerning “Stampede”

dope (Tr. at 308-310) labelling certain statements hear-

say and another an inadmissible statement by a person

not designated as a co-conspirator. The trial judge agreed

that a “worrisome situation” existed but denied the mo-

tion. At a later time Whaley also testified that he was

told by Detective Kenneth Johnson, who supervised both

Patterson and Smith, “to purchase some drugs from

Stampede’s organization.” (Tr. at 617). Counsel again

moved for a mistrial, claiming that the informant’s testi-

mony was prejudicial hearsay. In denying the motion

the court’s offer of a curative instruction was refused as

inadequate. However, the prosecutor was cautioned. (Tr.

at 654). On still other occasions there was reference to

the “Stampede organization” and the “organization” (Tr.

at 685-690). The trial court again denied that appellant’s

counsel’s motion for a mistrial.

Defense counsel sought to discredit Whaley in every

possible manner. They secured his admissions that he

used heroin regularly and committed acts of larceny

throughout the investigation. Under cross-examination,

Whaley testified that he had been at Saint Elizabeth’s

Hospital from 1970 to 1974, having been found not guilty

by reason of insanity on an automobile theft charge.

-

Appellants’ counsel also elicited that Whaley received out-

patient medical treatment after 1974 and that he had

violated medical orders to abstain from narcotic drugs.

However, the court refused to afford counsel an oppor-

tunity to explore or examine in any detail on Whaley’s

confinement, diagnosis or treatment or to introduce his

medical records, finding the latter “confidential.”

B. Testimony of Agent Smith and Informant Ward

Special Agent Donnie Smith of DEA testified about his

work with informants Ward and Whaley. The testimony

of Smith and informant Ward gave particular support to

the charges against the Johnson brothers in counts 7, 8

and 9 and specifically against Stampede Johnson and

George Marshall on the transactions set forth in count 21

of the indictment. The prosecution’s proof on count 21

was supported by a video-tape recording. The tape was

shown to the jury and Ward narrated the transaction

recorded on film and identified the appellants Marshall,

Redd and Stampede Johnson.

Ward and Smith first appeared in the 7th and T Streets

area in early May and were engaged in gathering evidence

for several weeks. After a lapse of time they reappeared

around the first of September. On this occasion, Ward

was provided with a recording device worn under his

shirt. Ward and Smith made a number of purchases

from Stampede Johnson during this period implicating

defendants Watson, Marshall, Redd and Jones as well as

the Johnson brothers in a number of transactions. Ward

and Smith detailed these sales and observations made at

these times in testimony supporting a number of sub-

stantive counts. Following each drug sale, a report was

prepared. Ward admitted that he did not personally pre-

pare the statements he signed; Smith filled in many of

the specifics. DEA agents also prepared the transcripts

of the tape recording which Ward relied upon in his

9a

testimony. Ward testified as to the accuracy of the tran-

scripts.

During his testimony, agent Smith, as had other wit-

nesses, made references to “Stampede’s organization”

which led to a motion for mistrial by Stampede Johnson’s

counsel. The trial court denied the motion and later in-

structed the jury with regard to these statements.

1. Impeachment of Informant Ward

Counsel for Stampede Johnson cross-examined Ward

extensively about his drug addiction. He admitted use of

heroin and methadone between 1972-76, spending up to

$500 a week on heroin while receiving a substantial per-

centage of his income from DEA. However, he failed to

disclose his involvement in illicit drug purchases to the

DEA agents. Defense counsel questioned Ward about

drug purchases he had made with friends in the 7th and

T Street area during the Stampede organization investi-

gation. (Tr. at 507). When asked by the prosecutor

whether Ward had purchased narcotics in that area prior

to his role as an informant, Ward replied that he had

bought drugs from “Slade.” (Tr. at 591). Counsel for

defendant Jones objected because the question concerned

a time before the conspiracy. While the court sustained

the objection, the motion for a mistrial was denied. (Tr.

at 606).

Ward was a very important prosecution witness and

he was cross-examined vigorously and a restriction on

additional examination was imposed. Although the court

limited cross-examination by Johnson’s counsel to 45 min-

utes, defense counsel was allowed to inquire further when

his time had elapsed. Johnson’s counsel inquired into

Ward’s criminal record in an attempt to show that after

being charged with a felony, a six-month term was ob-

tained with DEA assistance and that arrangements had

also been made for the dismissal of certain charges pend-

*%

10a

ing against Ward in Virginia. Ward denied that charges

were dismissed due to intervention by DEA authorities.

2. Use of Recording Devices and Tape Transcripts

The government provided the two informants with con-

cealed mechanical devices which recorded the conversa-

tions and negotiations for drug purchases which they

had with several of the appellants. Guilty verdicts on

several counts arising from the recordings were returned

against Stampede Johnson, Slade and Redd.

Following testimony as to how the tape recordings were

electronically enhanced to remove background noise, the

recording was played for the jury. (Gov’t Ex. 10). The

prosecution also provided the jurors with a prepared

written transcript of the recording. (Gov’t Ex. 11). The

transcript was not entered into evidence. At the same

time the following instruction was given by the trial

judge:

[T)his paper that has been handed to you is the

government’s interpretation of what appears on these

tapes. However, you will listen to the tapes very

carefully and make your own interpretation of what

appears on the tapes from what you hear. If you

think you hear something differently than the gov-

ernment has interpreted on this paper, then you

will follow your own interpretation. (Tr. at 482).

The transcript revealed that portions of the tape were

largely unintelligible. The prosecution skipped over large

portions of this tape and all subsequent tapes entered into

evidence, because of sections identified in the transcripts

as “street,” “background,” or “unidentified” noise.°

* For example, at one point the judge stated: “you may

have heard it clearly, but, .. . I didn’t.” (Tr. at 637). See

also Tr. at 484, 647, 669 and 697.

C. Additional Prosecution Witnesses

Other members of the Metropolitan Police Department

corroborated the informants’ testimony and also offered

testimony on actual drug seizures from various locations,

connecting the seized drugs with a particular defendant.

Expert witnesses in the field of analytical chemistry gave

testimony on the technique and procedures of analysis and

identified the substances purchased and seized as heroin,

Expert fingerprint analysts identified the appellant Wat-

son’s fingerprints on several tinfoils in which heroin was

wrapped. A DEA agent qualified and testified as an ex-

pert witness on drug trafficking and sales on the public

streets. He described the typical organization of a nar-

cotics ring and defined the roles of the several participants

such as the leader, who does not touch the drugs; the

lieutenant, who arranges the transactions; and the run-

ners, who pick up and distribute drugs.

Detective Kenneth Johnson prepared the transcripts

of the several tapes made by Ward and Whaley. In testi-

fying he attributed names to certain voices by direct

references, but depended on the informants to identify

other voices on the tapes. At any rate, he testified that

by the time the final typed copies of the transcripts were

given to the informants to review, the names of the

speakers were alongside the conversations, (Tr. at 1512).

A final prosecution witness, Thurston Shrader, became

acquainted with appellant Stampede Johnson a few weeks

before trial. At that time both were inmates at the D.C.

Jail. He testified in some detail as to various admissions

and inculpatory statements of Johnson (Tr. at 1359-68)

which supported the charges in the indictment." Shrader

“Shrader testified that he gained Stampede Johnson's con-

fidence by making an exaggerated claim of legal expertise

and then helping him with some legal matters.

‘J

contacted the United States attorney himself, offering

assistance in the hopes of mitigating his own three year

sentence for misprision of a felony and, presumably, any

punishment for pending embezzlement charges.’ There

was no indication that Schrader operated as a “plant” in

any contact with the prosecution or the police.

12a

D. The Defense Evidence

Appellants Stampede Johnson, Odell Johnson, John

Slade and George Marshall did not testify or offer any

testimony or evidence,

Appellant Arthur Watson took the stand, identified

himself as a 81-year-old part-time truck driver, and testi-

fied that he frequented the establishments in the 1800

block of 7th Street. He knew Odell Johnson from child-

hood and was acquainted with all other defendants. He

denied the testimony of the informant Ward, attributing

to him the nickname “Speed,” or that he had a beard be-

fore October, 1977. While he admitted knowing Allen

Whaley, he denied ever seeing Ward or ever having sold

narcotics to either. He could not explain how his finger-

prints happened to appear on tinfoils of drugs recovered

in the investigation and admitted in evidence at the trial.

On cross-examination, the prosecutor asked Watson

whether he had been convicted in May, 1976, of carrying

*In 1978, Shrader was to have been a witness against his

sister’s fiance, who was charged in federal court with kid-

napping and extortion. Under the government Witness Pro-

tection Program, Sharder was yiven a new name and job.

When he learned that the fiance had been released and knew

his whereabouts, Shrader fled, taking along $600 belonging

to his employer. The government located him three years

later and charged him with misprision for concealing evi-

dence and with embezzlement. Shrader pled guilty to mis-

prision and, at the time of his testimony, the embezzlement

charges were pending.

13a

a dangerous weapon, specifically a gun. (Tr, at 1591).

Watson replied in the affirmative. His counsel moved for

a mistrial claiming improper impeachment on a_ mis-

demeanor gun charge, having no connection to credibility.

(Tr. at 1591). The motion was denied and the prosecutor

did not pursue the questioning. Watson did not receive

his requested opportunity to explain the circumstances of

the conviction. Only the next morning did the court in-

struct the jury to disregard the fact that Watson was

convicted of a misdemeanor gun charge when considering

his credibility, since the gun conviction did not involve

dishonesty or a false statement. (Tr. at 1721).

Appellant David Redd, a clerk typist at the Pension

Benefit Guarantee Corporation since 1976, called his

supervisor who gave alibi testimony that he was at work

on September 29, 1977. A co-worker testified that he

drove Redd to the area that day during lunch hour and

waited one half hour while Redd bought heroin for him-

self. A supervisor at the D.C, Superior Court Narcotics

Treatment Administration Office testified that the 7th and

T area has a reputation as a place where drugs can be

easily purchased, and that it was common knowledge that

addicts pooled their money to purchase large quantities

of drugs to get more for their money,

Finally, Redd himself took the stand and testified that

he had been an addict before starting a methadone pro-

gram, and frequented the 1800 block of 7th Street N.W.

According to Redd, he socialized in the area but did not

buy drugs from Whaley. He recognized himself on both

the audio and video tapes of September 29, but stated that

Whaley gave him money to pool in order to buy heroin for

the two of them.

14a

Il.

LEGAL ANALYSIS

A. Prosecutor's Use of Tapes and Transcripts

The major objection presented by all appellants is that

the trial judge permitted the jury to listen to the largely

inaudible tape recordings of Whaley’s and Ward’s drug

purchases. To facilitate an understanding and so that the

jury could follow the tapes with a minimum of difficulty

government-prepared transcripts were shown to the jury

but never admitted into evidence. We conclude that while

better procedures could have been adopted for dealing

with and presenting the tapes and transcripts during

trial, the court’s rulings do not constitute reversible error.

1. Tape Recordings

Admission of tape recordings at trial rests with the

sound discretion of the trial court. Monroe v. United

States, 98 U.S. App. D.C. 228, 234, 234 F.2d 49, 55,

cert, denied, 352 U.S. 873 (1956).

The first criterion for admission is that the tapes be

authenic, accurate and trustworthy. United States v.

Haldeman, 181 U.S. App. D.C. 254, 380, 559 F.2d 31,

107 (1976), cert. denied sub nom, Mitchell v. United

States, 481 U.S. 933 (1977). There is no serious dis-

pute here as to the authenticity of the original tape

recordings or the electronically-filtered copies played in

court. The government presented extensive testimony as

to the collection and custody of the original tapes, see,

e.g., United States v. McMillan, 508 F.2d 101, 104 (8th

Cir.), cert. denied, 421 U.S. 916 (1974), as well as the

techniques used in the electronic enhancement. The testi-

mony showed that the enhanced copies, which lowered or

deleted background noise, had been compared to the

originals for accuracy by an experienced FBI technician

15a

and Detective Kenneth Johnson. Fountain v. United

States, 384 F.2d 624, 681 (5th Cir. 1967), cert. denied,

390 U.S. 1005 (1968) ; United States v. Knohl, 379 F.2d

427, 440 (2d Cir.), cert. denied, 389 U.S. 973 (1967).

Both sets of tapes were entered into evidence.

A second criterion for admission is that the tapes be

audible and comprehensible enough for the jury to con-

sider the contents. The appellants challenge the procedure

and merits of the trial judge’s decision, made without

listening to the tapes out of the jury’s presence, to admit

allegedly unintelligible tape recordings.* As to the pro-

cedural objections, an alternative course would have been

for the trial judge to verify the audibility of the tapes

at pretrial rather than waiting to hear the tapes for the

first time when played before the jury. Monroe, 98 U.S.

App. D.C. at 234, 284 F. 2d at 55; United States v.

Lemonakis, 158 U.S. App. D.C. 162, 170, 485 F.2d 941,

949 (1973), cert. denied, 415 U.S. 989 (1974) ; Springer

v. United States, 388 A.2d 846, 853 (D.C. Ct. App. 1978).

However, the lack of such a preliminary examination is

not in itself ground for reversal. United States v. Bryant,

480 F.2d 785, 789 (2d Cir. 1973).

As to the merits, there is no question but that parts

of the recordings were inaudible. The judge himself com-

mented at times that he could not understand a word of

several sections. Tapes are admissible, however, unless

“the unintelligible portions are so substantial as to render

the recording as a whole untrustworthy.” Monroe, 98

U.S. App. D.C. at 234, 234 F.2d at 55; United States v.

* The trial judge also denied a pretrial motion to exclude

use of the transcripts, based in part on the poor quality

of the tapes, without listening to the tapes or making any

findings as to the quality of the tapes. The prosecutor alone

asked the court to examine the tapes and transcripts for audi-

bility and accuracy. Defense counsel heard the tapes and

examined the transcripts before trial.

16a

Jones, 540 F.2d 465, 470 (10th Cir. 1976), cert. denied,

429 U.S. 1101 (1977). This was not the case here.

Indistinct portions were clarified by a second playing

and the jury listened to the tapes again during delibera-

tion. See, e.g., Bryant, 480 F.2d at 790. The court,

jurors, and counsel indicated, when asked, that they had

understood relevant sections played. (Tr. at 638, 640,

644). The tapes were sufficiently clear to allow the

prosecutor and counsel for defendant Jones to reach gen-

eral agreement on transcripts. The tapes were narrated

by Ward and Whaley and, as this Court found in Monroe,

supra, problems caused by poor quality tapes are mini-

mized when “a witness who heard the statements recorded

also testifies, so that the recordings give independent sup-

port to his testimony.” 98 U.S. App. D.C. at 234, 234

F.2d at 55. While appellants refer to Ward and Whaley

as unreliable witnesses, the credibility issue was for the

jury. Finally, though this raises another issue addressed

below, the jurors had the benefit of transcripts to guide

them past the background noise and irrelevant conver-

sation. Given all these factors, the trial court did not

abuse its discretion in admitting the tape recordings into

evidence and allowing the enhanced copies to be played

for the jury.

2. The Prepared Transcripts

Voicing objections that are somewhat parallel though

more serious than those raised in connection with the

actual tape recordings, the appellants challenge the pro-

priety of the jurors’ use of the government-prepared

transcripts. While the transcripts were not admitted into

evidence, the jurors followed the transcripts while listen-

ing to the tapes during the trial. Given the poor quality

of the tapes, we assume the jury made substantial use of

the transcripts. Beyond the predictable allegations that

the transcripts were inaccurate, appellants Redd and

—~.

17a

Slade claim that the transcripts served as an indirect—

and unconstitutional—method of identifying them as par-

ticipants in heroin sales.

It is within the trial court’s discretion to allow the jury

to use an accurate transcript “to assist them in listening

to [a] tape.” McMillan, 508 F.2d at 105; Springer, 388

A.2d at 853. The need for a transcript tends to arise

where, as here, portions of a tape were relatively in-

audible and the identity of speakers was not automatically

clear to a listener. United States v. Onori, 535 F.2d 938,

947 (5th Cir. 1976) ; McMillan, 508 F.2d at 105; United

States v. Hall, 342 F.2d 849, 853 (4th Cir.), cert. denied,

382 U.S. 812 (1965). Because a transcript is only meant

to be a guide to evidence—the tape being played—it is

important that the judge instruct the jurors that their

personal understanding of the tape supersedes the text in

a transcript. Onori, 535 F.2d at 949; McMillan, 508 F.2d

at 106. Appropriate instructions were given whenever a

tape was played, and this is not disputed’ (Tr. at 482,

636, 668, 678, 691, 716).

The ideal procedure for testing accuracy is to have the

prosecution and defense attorneys stipulate to a tran-

script. McMillan, 508 F.2d at 106; Onori, 535 F.2d at

948; Bryant, 480 F.2d at 791. When they cannot agree

as to what is on tape, the second best alternative is for

the trial court to make a pretrial determination of ac-

curacy by reading the transcript against the tapes.

Springer, 388 A.2d at 853-54. In either situation the

jury receives a transcript, certified as a correct version

of the tape. A third alternative is to present the jury

with two transcripts, containing both sides’ versions, and

let the jury determine which is more accurate. Onori, 535

F.2d at 948-49. In this situation, because no one tran-

script is presented as “correct,” the judge “need not

necessarily listen to the tapes or pass on the accuracy of

any transcript.” Jd,

18a

In these cases, the defense counsel vigorously chal-

lenged the accuracy of the transcripts, largely because the

tapes from which they were made were poor. Rather than

comparing the tapes and transcripts at pretrial,’ the court

invited the defense counsel to submit their own tran-

scripts. As discussed above, this ruling was not per se

an abuse of discretion. Onori, 585 F.2d at 948-49. It is

certainly not judicial error that defense counsel did not

—or could not—utilize the opportunity. Jd.’°

Under the circumstances, the Court finds that the

jury’s access to government-prepared transcripts was not

reversible error, for two reasons. First, through defense

objections and the court’s cautionary instructions, the

jury was made aware that the transcripts offered only

the government’s interpretations. The repeated instruc-

tions served to eliminate any prejudice that may have

resulted from discrepancies between tape and transcript.

Bryant, 480 F.2d at 791. There is no evidence that the

tapes were so poor that the jurors could not compare the

tapes and transcripts and that the transcripts became in

effect the real evidence.

Second, the record provides substantial support for the

relative accuracy of the transcripts. Detective Kenneth

Johnson testified concerning the preparation of the tran-

scripts. See, e.g., Bryant, 480 F.2d at 790-91. He de-

veloped preliminary drafts from the original tapes,

identifying the informants from. personal knowledge and

other voices by references. Johnson then would play and

review the tapes with the informants to determine who

® See n.8 supra and accompanying text.

‘ Indeed, only counsel for defendant Jones accepted the

prosecutor’s invitation to participate in preparation of a

mutually agreeable version, and the prosecutor thereafter

changed the transcript in several ways requested by counsel.

Apparently the government made further changes later.

a

19a

was talking. Both informants testified that the enhanced

tapes and transcripts corresponded accurately. (Tr. at

396-97, 635). Finally, while the tapes were played in

court, the informants identified the speakers and ex-

plained what was taking place.

Appellants Redd and Slade raise an additional objection

to the transcripts, based on what they view as “a highly

suggestive identification process.” '' They conterd that

government agents actually identified the voices on the

tape by supplying drafts with names to the informants,

a procedure they claim to be more prejudicial than the

single photograph identification struck down in Mason v.

United States, 134 U.S. App. D.C. 280, 286, 414 F.2d

1176, 1182 (1969).

The record simply does not support this due process

argument. The informants did have an active role in

identifying voices for the transcripts. There is no ques-

tion of their competence to identify the voices.'’* There

was evidence that Whaley had substantial connections

with Stampede Johnson, Slade and Redd—the appellants

convicted on counts involving conversations taped by

Whaley—from times before the investigation.’* Fountain,

384 F.2d at 632. See also McMillan, 508 F.2d at. 105.

The agents’ testimony and the videotape corroborated the

voice identifications.

' Brief for appellant John Roscoe Slade at 15.

12 Whaley’s dependence on the transcripts during testimony

presumably was taken into account by the jury in evaluating

credibility.

13The only audio tape made by Ward, in connection with

Count 18, did not lead to convictions. For this reason, the

Court does not address Slade’s objections that there is less

evidence of Ward’s participation in transcript preparation

than there is of Whaley’s.

20a

In sum, while the identification process was not per-

fect, due in large part to the poor quality of the original

tapes, the process in no way violated appellants’ consti-

tutional rights. Nor is a remand required on grounds

that the presence of names in the transcripts “suppl [ied]

ersatz corroboration of testimonial identification.”

B. The St. Elizabeth’s Hospital Records of Informant

Allen Whaley

Prior to Whaley’s cross-examination the defense an-

nounced its intention to offer the records of that

informant’s confinement for mental illness at St. Eliza-

beth’s Hospital. Objections were presented by the prose-

cutor on grounds that Whaley had been released prior to

his activities as an informant. The court ruled that the

record was “confidential” and would not be admitted into

evidence. (Tr. at 859).

Counsel were allowed to establish only that Whaley was

at St. Elizabeth’s from 1970 to 1974 after a finding of

not guilty by reason of insanity to a burglary charge;

that he was in an outpatient treatment program in April,

1976, when he was found “socially rehabilitated;” and

that he was under medication only on a limited basis.

The court did not allow defense counsel to inquire of any

diagnosis or treatment received or to use the hospital

report to impeach his claim that he never used LSD.

Given the importance of Whaley’s testimony to the

government’s case and his uncertain credibility, the ap-

pellants contend that the trial court’s restriction of

cross-examination into his medical records was reversible

error."° The government argues that the court made a

' Brief for appellant David Redd at 12.

' Appellants are led by Redd in this argument, since he

was convicted almost solely on the basis of Whaley’s testimony.

2la

“proper balance of their marginal probative worth and

their high potential for prejudice and confusion.” *°

However, the trial court did not attempt to strike any

balance between the relevance and potential prejudice of

the evidence, but rather pronounced the records “confi-

dential” without explanation. This ruling was an abuse

of discretion. Rule 408, Fed. R. Evid. Nowhere in the

record did anyone raise the privilege of confidentiality,

and the appellants’ views on the privilege are nowhere

fully aired.

It is not necessary to make a determination whether

the St. Elizabeth’s records or their contents were admis-

sible, a task made impossible by the paucity of the record.

For purposes of this appeal, we assume that Whaley’s

mental health history was relevant to his credibility as a

witness to 1977 events. Sinclair v. Turner, 447 F.2d

1158, 1162 (10th Cir. 1971), cert. denied, 405 U.S. 1048

(1972). The court also assumes that this relevance out-

weighed any personal harm that would be caused by

disclosing this history, United States v. Honneus, 508

F.2d 566, 573 (1st Cir. 1974), cert. denied, 421 U.S. 948

(1975), and that appellants had a right to cross-examine

him in detail about his St. Elizabeth’s records to attack

his credibility. United States v. Partin, 498 F.2d 750,

763 (5th Cir. 1974), cert. denied, 484 U.S. 903 (1978).

Even so, on the basis of Whaley’s complete testimony, the

trial court’s refusal to admit details of his St. Elizabeth’s

stay is not reversible error.

The jury knew, courtesy of the prosecutor, that Whaley

was an addict and a thief who was paid for informing

on his friends. During an extensive cross-examination,

Whaley admitted that he continued to use heroin and

commit larceny throughout the investigation, that he had

an extensive criminal record, and that he hoped to avoid

imprisonment by cooperating with DEA. The jury learned

16 Brief and Appendix for Appellee at 20.

7%

22a

that Whaley was committed to St. Elizabeth’s mental

hospital for criminal insanity in 1970, remained there

for four years, and was treated as an outpatient for two

more years. Defense counsel elicited the fact that Whaley

resumed his heroin habit after release against doctors’

orders. Given all this evidence, the Court cannot find

that details about Whaley’s mental illness, or additional

impeachment by reference to statements he may have

made to St. Elizabeth’s doctors about LSD use, would

have significantly affected the jury’s evaluation of his

credibility or swayed the verdicts. Kotteakos v. United

States, 328 U.S. 750 (1946).

C. References to Stampede’s Organization

In this conspiracy the prosecution was obligated to

prove that John “Stampede” Johnson, assisted by his

brother Odell, managed an organization selling heroin.

All the substantive counts involve purchases from the

organization. It is indisputable that the street term

“Stampede’s organization” was the equivalent of the

legal term “conspiracy.” Nor could one dispute that the

ultimate question for the jury was whether such an

“organization” existed.

Appellants therefore all objected to repeated references

by the several government witnesses to “Stampede’s or-

ganization” or “Stampede’s dope.” In addition to raising

hearsay objections, they argue that the witnesses thereby

implied that the police had evidence beyond that intro-

duced at trial that such an organization existed, in con-

travention of United States v. Hilliard, 186 U.S. App.

D.C. 312, 569 F.2d 148 (1977). They contend that the

trial court’s lukewarm reprimands to the prosecutor ™

'’ The trial] court’s several instructions to the prosecutor

to avoid a “worrisome situation,” (Tr. at 311) ; “to be a little

more careful,” (Tr. at 654); and to stop “over-trying the

case” (Tr. at 657), may have served to limit references to an

“organization,” but obviously did not solve the problem. _

7 o

23a

and the belated instructions to the jury to disregard such

references did not temper the inherent prejudice.

We disagree with the government’s characterization of

such references as having been “occasional” and “spon-

taneous.” The remarks appear at several points in the

record. They are highlighted by defense motions for

mistrial, all denied.

These comments were unnecessary since each witness

could just as easily have testified to a purchase of nar-

cotics or plans to meet with Stampede Johnson. Addi-

tionally, they were improper since they essentially consti-

tuted the legal conclusion that a heroin distribution con-

spiracy existed. The prosecutor admitted as much when

he justified such a reference as opinion evidence by “a

witness who is familiar with how the operation works.”

(Tr. at 652). The problem with this explanation is that

Smith, Patterson, Whaley and Ward were not expert

witnesses, nor was a foundation laid for lay witness

opinion testimony under Rule 701, Fed. R. Evid.

Despite the argument of appellant Stampede Johnson,

there is no evidence that the prosecutor deliberately

elicited the phrase “organization” from his witnesses.

Once the improper statements were made, the court

gave appropriate instructions to the jury to ignore them.

(Tr. at 973-74).

While the several references to “Stampede’s organiza-

tion” in the record are unfortunate, they do not create a

“campaign of suggestion” equivalent to that in United

States v. Hilliard, swpra, where the defendant was in-

dicted under the aka “Meatball” for armed robbery of a

postal employee. The government presented substantial

testimony against a subject named “Meatball,” but no

admissible evidence that Hilliard was ever known as

“Meatball.” The Court reversed the conviction, finding

that

's

24a

the inevitable result of the prosecutor’s repeated

questions and references to Meatball and the suspect

discovered by the investigation was to splash the

defendant with damaging matter that was not in

evidence.

186 U.S. App. D.C. at 315, 569 F.2d at 146.

In comparison, the prosecution here presented substan-

tial independent evidence of the crimes charged in the

indictment. The extensive testimony, augmented with

audio and video tapes, clearly showed that appellants

were participants in a heroin sales network operating

under Stampede Johnson’s direction.'* The references to

“Stampede’s organization” did not insinuate the existence

of substantive evidence that was not presented to the

jury, but rather that government agents at the start of

the investigation had some reason to believe that a ring

involving Stampede Johnson was selling heroin. The

references were almost always made in the context of a

government agent and/or an informant starting out on

some new phase of the investigation. It is not incumbent

on the government to prove why it suspected a conspiracy,

but only that a conspiracy existed and the named de-

fendants were members.

The references were unnecessary since the jury could

presume as a matter of common sense that the govern-

ment had some basis to investigate this group of de-

fendants. Viewing the overwhelming substantive evidence

in this case, it is also a matter of common sense that the

specific references to “Stampede’s organization” did not

shape the jury’s thinking or cause the jury to find a

conspiracy among the appellants. Applying the standard

'§ The appellants do not contest that John R. Johnson’s alias

was Stampede, a fact clearly proven by government witnesses.

The appropriate analogy here for Hilliard/Meatball” is

“Stampede’s organization” /conspiracy.

25a

applied in Kotteakos v. United States, 328 U.S. 750, 765

(1946) we cannot find that the judgment was “substan-

tially swayed” by the error and therefore will not reverse

the convictions on this ground.

D. The Challenged Conspiracy Instruction

The trial court gave the following jury instruction as

to the evidence that may be considered in determining a

particular defendant’s membership in the alleged con-

spiracy:

Now, as to participation in the conspiracy. Once

satisfied that the conspiracy charge|d] existed, you

must ask yourself who its members were. In de-

ciding whether a defendant on trial before you was

a member of the conspiracy, you should consider

whether on all the evidence, that defendant know-

ingly entered the conspiracy and was a willing par-

ticipant. (Emphasis added.) (Tr. at 2140).

In doing so the court accepted the government’s re-

quested charge, rather than the standard instruction for

conspiracy in the “Redbook,” Young Lawyers Section,

D.C. Bar, Criminal Jury Instructions 302 (8d ed. 1978).

The Redbook instruction provides:

In determining . . . whether [the] [a particular]

defendant was knowingly a member of the conspir-

acy, if such a conspiracy existed, you may consider

only his own acts or statements. A defendant can-

not be bound by the acts or statements of other

participants unless or until it is established that a

conspiracy existed and that the defendant was one

of its members. (Ephasis added) ."

Unlike the Redbook instruction, the instruction actually

given allows the jury to consider hearsay statements of

'® The Second Edition of the Redbook, in use at the time of -

trial, contained a virtually identical instruction. The same

standard instruction appears in Devitt & Blackmar, Federal

Jury Practice and Instructions, { 2705 (3d ed. 1977).

7%

26a

a co-conspirator in determining the membership of a

particular defendant in the conspiracy.

Several appellate courts have adopted the “all the

evidence” instruction given by the trial court here. United

States v. James, 590 F.2d 575 (5th Cir.) cert. denied,

99 S. Ct. 2836 (1979); United States v. Santiago, 582

F.2d 1128, 1133 (7th Cir. 1978); United States v. Bell,

573 F.2d 1040, 1043-45 (8th Cir. 1978); United States

v. Martorano, 557 F.2d 1, 11-22 (1st Cir. 1977), cert.

denied, 435 U.S. 922 (1978) ; United States v. Stanchich,

550 F.2d 1294 (2d Cir. 1977) ; United States v. Trowery,

542 F.2d 623, 626-27 (3d Cir. 1976), cert. denied, 429

U.S. 1104 (1977). These courts have treated the ques-

tion of the admissibility of co-conspirator statements un-

der Rule 801(d) (2) (E), Fed. R. Evid., as one of com-

petence under Rule 104(a), requiring the court to make

the preliminary determination of the admissibility of

potentially prejudicial evidence. See, e.g., James, 590

F.2d at 579-80; Santiago, 582 F.2d at 1133. The court

therefore bears the responsibility of determining whether

the evidence of conspiracy and its membership is strong

enough to allow the jury to consider the co-conspirator

statements.

Although there may be a good basis for the Rule 104

(a) competency approach, we do not find it appropriate

to approve it as the rule for this circuit especially given

the circumstances of these appeals.” The trial record re-

2° Defense counsel never specifically objected to the “all

the evidence” charge offered by the government, though they

discussed the conspiracy instruction at length with the judge

and the prosecutor. (Tr. at 1400-20). See Henderson v. Kibbe,

431 U.S. 145, 154 (1977). This is not to say, as the govern-

ment argues, that the issue has not been preserved on appeal.

There is no question but that defense counsel desired the

standard Redbook conspiracy instruction (Tr. at 1097) and

specifically objected to any deviation from that “time-tested”

instruction. (Tr. at 1446).

27a

flects no analysis or even awareness of the goals behind

the Rule 104(a) competency approach. This Court can-

not assume, despite the government’s argument, that the

jucge implicitly made the requisite initial determination

of admissibility of co-conspirator statements.” Without

such a determination, the judge’s use of the “all the evi-

der ce” instruction is questionable even in those jurisdic-

tions that employ that instruction. Especially in the in-

stant cases, marred by references to “Stampede’s organ-

ization,” the judge’s failure to use the standard Redbook

instruction was improper. In any event, since the trial

in this case, this circuit has expressly repudiated the “all

the evidence” instruction.”

2t As appellants Watson and Marshall point out in their

reply brief, even assuming that this ruling shows the trial

judge did make a preliminary determination of admissibility,

it remains probable that he himself considered ‘‘all the evi-

dence,” including co-conspirator statements, in finding that

defendants had been shown to be conspirators. In no way

did the trial judge specify what standard of proof he thought

appropriate.

*2 In two recently decided cases, United States v. Jackson,

No. 78-1768 (D.C. Cir. Jan. 29, 1980) and United States v.

Gantt, No. 78-1399 (D.C. Cir. Jan. 25, 1980), this circuit held

that the existence of a conspiracy and a defendant’s participa-

tion therein must be shown by substantial independent evi-

dence; co-conspirators statements may not be considered.

Accord “Redbook” instruction, n.19 supra and accompanying

text. However, in determining the illegality of the conspiracy,

the jury may consider hearsay statements of co-conspirators.

United States v. Jackson, slip op. at 33. Consequently, the

court may admit the hearsay statements “subject to connec-

tion” or on the basis that the conspiracy has been shown to

exist by substantial independent evidence. Jackson, slip op.

at 41; Gantt, slip op. at 27.

If the evidence is admitted “subject to connection” and

the government fails to prove the necessity connection, the

court may strike the hearsay testimony and instruct the jury

to disregard it. Jackson, slip op. at 39; Gantt, slip op. at 26.

Once the court has found that the government has made the

28a

Despite the foregoing, the evidence of guilt was over-

whelming, substantially in the form of tapes and inde-

pendent evidence against each appellant. Co-conspirator

statements and references to “Stampede’s organization”

were not a significant part of the prosecution’s case. Only

two appellants here point to potentially damaging co-

conspirator hearsay. As we today reverse the conviction

of appellant Watson on other grounds,** we need not

reach the prejudice to him from the instruction error.

As for appellant Marshall, we find that he was not preju-

diced by the instruction error. He was convicted only on

the count for which a video-tape documented the offense.

The jury apparently was able to consider Marshall’s role

as distinguished from the totality of evidence; the jury

acquitted Marshall of the four other charges against him.

See Appendix A.

The several appellants’ convictions on the conspiracy

count, based on the given jury instruction as to con-

spiracy membership, will not be disturbed.

E. Improper Impeachment of Arthur Watson

Of the several challenged convictions presented in this

appeal we find merit only in the claim of the appellant

Watson. He was the victim of improper impeachment

and his conviction on the conspiracy count should be

reversed.

On cross-examination, the prosecutor impeached Wat-

son with a misdemeanor conviction for possessing a pistol

without a license, 22 D.C. Code § 3204. The court denied

requisite showing and has admitted the hearsay statements,

the court should apply the traditional standard of guilt

beyond a reasonable doubt in determining whether to submit

the entire case to the jury. Jackson, slip op. at 41. The court

considers all of the evidence in making this determination. Jd.

28 See section E infra.

29a

a inistrial motion, and gave a cautionary instruction only

the next day and in final instructions.

This impeachment was clearly improper under Rule

609(a), Fed. R. Evid., which allows use of a prior con-

viction to impeach a witness only if the crime 1) was

punishable by death or imprisonment for more than one

year or 2) involved dishonesty or a false statement. The

crime of carrying a pistol without a license is not one

that may be used for impeachment. United States v.

Millings, 175 U.S. App. D.C. 293, 535 F.2d 121 (1976).

See also United States v. Dorsey, 192 U.S. App. D.C. 313,

591 F.2d 922 (1978).

Since this error does not reach constitutional dimen-

sions, United States v. Smith, 179 U.S. App. D.C. 162,

180, 551 F.2d 348, 366 (1976), the question on appeal

is whether the impeachment was more than harmless if

the Court, looking at the case as a whole, can “say, with

fair assurance, . .. that the judgment was not substan-

tially swayed by the error.” Kotteakos v. United States,

328 U.S. 750, 765 (1946).

The Court cannot make such a statement here. The

jury did not believe most of the evidence against Watson.

He was acquitted of four substantive counts. The two

informants were the principal prosecution witnesses on

those counts and Ward’s identification was not the strong-

est. (Tr. at 571-72 and 1566). The proof on one of the

counts also included expert testimony that Watson’s fin-

gerprints were on a tinfoil of drugs.

The four counts covered four of the six overt acts

naming Watson in the conspiracy count. Two overt acts

concerned meetings with informant Allen Whaley in early

September, 1977. In the final analysis, the jury had to

balance Whaley’s testimony plus evidence that Watson’s

fingerprint appeared on a tinfoil recovered from the tree

against Watson’s testimony that he frequented the area

7%

30a

for innocent reasons, in part because he was friendly with

other defendants. Whaley was not the most credible wit-

ness. The fingerprint evidence could not have been

weighty, since Watson was not indicted in connection

with the cache of heroin in the tree.

Under these circumstances, the Court cannot find that

the jury was not ultimately swayed by the improper evi-

dence of Watson’s misdemeanor gun conviction to convict

him of conspiracy. See Millings, 535 F.2d at 121; Smith,

179 U.S. App. D.C. at 179, 551 F.2d at 365-66. Compare

United States v. Belt, 169 U.S. App. D.C. 1, 514 F.2d

- 837 (1975). This is especially so where an attempt at a

curative instruction did not come until the day following

the testimony. United States v. Carter, 157 U.S. App.

D.C. 149, 151-52, 482 F.2d 738, 740-41 (1973). In fact,

because the judge repeated the impermissible testimony

about Watson’s gun possession conviction in making the

instruction, the prejudice was highlighted and likely com-

pounded.

Examining this record as a whole we find that the

impeachment of Watson’s credibility with a misdemeanor

gun conviction was reversible error. His conspiracy con-

viction is reversed and his case is remanded for a new

trial.

III.

ADDITIONAL LEGAL ISSUES PRESENTED

Other issues have been raised by the appellants. While

they warrant some comment, in no event are they grounds

for reversal of any conviction.

A.

Appellant Stampede Johnson contends that his Sixth

Amendment confrontation rights were violated when

cross-examination of government witnesses Charles Ward

3la

and Thurston Shrader was restricted by the trial court.

Following several questions about Ward’s drug usage, his

paid informant status, and a sentence for a prior convic-

tion, further examination was limited to 45 minutes.

Specifically his counsel was denied opportunity to dis-

cover the identity of certain associates of Ward's at the

time of a particular drug purchase.

A trial judge may and must exercise discretion to limit

cross-examination into collateral matters. Glasser v.

United States, 315 U.S. 60 (1942); Howard v. United

States, 128 U.S. App. D.C. 336, 341, 389 F.2d 287, 292

(1967). While the time limitation may have placed a

degree of pressure on Johnson’s counsel, who then indi-

cated that the schedule interfered with his preparation

and concentration, under the circumstances of these cases

and the matters explored, the restriction of cross-exami-

nation was not an abuse of discretion or prejudicial. See

Alford v. United States, 282 U.S. 687, 692 (1931).

The fact remains that counsel conducted a long and

thorough cross-examination of Ward. We cannot find that

the limitations on the cross-examination were sufficiently

disconcerting or substantively improper to call for re-

versal on constitutional grounds. See United States »v.

Pugh, 141 U.S® App. D.C. 68, 72, 436 F.2d 222, 226

(1970); Howard, 128 U.S. App. D.C. at 341, 389 F.2d

at 291-92.

Appellant also raises a Sixth Amendment challenge

because of restrictions in the cross-examination of Thurs-

ton Shrader, a white prisoner held at the D.C. Jail.

Counse! was granted full opportunity to discredit Shrader

and otherwise to lay bare Shrader’s obvious self-motiva-

tion to shorten his jail time by producing “good” evidence.

The trial court properly sustained the prosecutor’s objec-

tions and was warranted in limiting further questioning

when it appeared that tangential matters were being

explored.

32a

B.

Appellant Slade alleges reversible error because on re-

direct examination by the prosecution, the informant

Ward identified him as having sold narcotics at a time

prior to the conspiracy. Slade was not charged in the

indictment with that particular sale. Objection to Ward’s

testimony was sustained by the trial court and a motion

for a mistrial was denied. (Tr. at 591-606). Rule 404(b),

Fed. R. Evid., providing for the inadmissibility of prior

bad acts, was applicable here.

However, we do not find Ward’s statements sufficiently

prejudicial to disturb Slade’s conviction. Both inform-

ants Ward and Whaley tvstified against Slade on various

counts of the indictment. As it developed it appears that

the jury was not convinced by any of Ward’s testimony

against Slade. No convictions on the distribution counts

against the appellant were base’ on Ward’s testimony.

The other evidence presented against Slade was substan-

tial, was properly submitted to the jury, and resulted in

convictions on four substantive counts as well as the

conspiracy.

. C.

Appellant Redd claims prejudicial joinder in light of

the serious disparity of evidence against him as compared —

to the other defendants. His motion for severance was

denied. The indictment placed him in the area of the

narcotic transactions on only several occasions.

The trial court has great discretion in severance mat-

ters, with the balance generally to be “struck in favor

of joint trials.” United States v. Hines, 147 U.S. App.

D.C. 249, 266, 455 F.2d 1317, 1334, cert. denied, 406

U.S. 975 (1972).

Absent a dramatic disparity of evidence, any prejudice

caused by joinder is best dealt with by instructions to

33a

the jury to give individual consideration to each defend-

ant. United States v. Haldeman, 181 U.S. App. D.C. 254,

295, 559 F.2d 31, 72 (1976), cert. denied, 431 U.S. 233

(1977).

The government’s case against Redd included testimony

of the informant Whaley together with audio and video

tapes of the sales. The evidence was independent and

substantial. The trial judge properly instructed the jury

to determine the guilt or innocence of each defendant

separately. (Tr. at 2165-66). The record simply does not

show that Redd’s conviction was prejudicially based on

evidence against his co-defendants.

IV.

CONCLUSION

In this appeal, the appellants have jointly and indi-

vidually raised several challenges to their convictions be-

fore the trial court. The multitude of issues is not sur-

prising, since the complex indictment charged all defend-

ants with conspiracy and with substantive crimes arising

from participation in a complex heroin sales ring. Be-

cause drug conspiracy cases invite difficulties at the trial

level, we have reviewed the evidence and considered the

arguments in great—perhaps tedious—detail.

We have delineated and discussed several problem areas

in this extensive record. Given the overwhelming inde-

pendent evidence against the appellants, the errors which

are discussed do not have a cumulative prejudicial effect

requiring reversal of the convictions. The one exception

is the conspiracy conviction of appellant Arthur Watson,

which is reversed and remanded for « new trial due to

improper impeachment. The convictions of all other

appellants are affirmed.

34a

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37a

BAZELON, Senior Circuit Judge, concurring: I agree

with my brethren that the errors complained of did not

contribute to conviction, see Fahy v. Connecticut, 375 U.S.

85, 86-87 (1963), except as to appellant Watson. See pp.

28-30 supra. I write separately because I believe that the

number of errors raised on appeal warrants comment.

It is not surprising that errors may occur in a trial

of connected, complex cases, prosecuted zealously. Here,

the prosecution played nearly. inaudible tapes for the jury

and had the jury read transcripts prepared by the gov-

ernment but never admitted into evidence. Prosecution

witnesses made repeated references to “the organization,”

although a major issue at trial was the existence of a

conspiracy. The prosecution also successfully proposed a

conspiracy instruction that differs significantly from the

one required in this circuit.

As this court’s opinion elaborates, each of these prob-

lems could have been avoided by observing settled prece-

dents: the trial court should have considered the tapes at

pretrial rather than waiting to hear them in the presence

of the jury; similarly, it should have determined the ac-

curacy of the transcripts before permitting the jury to

read them; it should not have accepted the nonstandard

conspiracy instruction that directed the jury to consider

“all the evidence”; it should at least have ruled on the

competency and admissibility of co-conspirator statements

swept into evidence against individual defendants by the

nonstandard instruction. Finally, it ought to have framed

its initial reprimand with sufficient firmness to ensure

that references to “the organization” were not repeated.

Although we find the practices complained of are harm-

less here, they are not approved. Evidence of guilt must

not obscure our commitment to fairness.'

‘Cf. Harrington v. California, 395 U.S. 250, 256 (1969)

(Brennan, J., dissenting) (“The focus of appellate inquiry

should be on the character and quality of the tainted evidence

as it relates to the untainted evidence and not just on the

amount of untainted evidence.’’).

38a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1979

No. 78-1333

Criminal No. 77-00632

UNITED STATES OF AMERICA

Vv.

JOHN ROSCOE SLADE, A/K/A SLAVE,

Appellant

And Consolidated Case Nos. 78-1409, 78-1410, 78-1411,

78-1412 and 78-1419

Before: BAZELON, Senior Circuit Judge; Wiukey, Circuit

Judge, and ParKER*, United States District Judge for the

District of Columbia

Order

Filed: July 11, 1980

It is ORDERED, by the Court, sua sponte, that the Opi-

nion for the Court filed by District Judge Parker on March 4,

1980 be, and it hereby is, amended as follows:

Middle of Page 25:

replace ‘‘standard instruction’? in line 19 with ‘‘the

defense’s requested instruction’’;

at the end of that sentence, add footnote 20 from page

26 of the slip opinion (and renumber it n.19);

renumber old n. 19 to be new n. 20 and strike ‘‘stan-

dard’’, second line from the bottom.

* Sitting by designation pursuant to 28 U.S.C. §292(a).

39a

Page 26:

Replace the first sentence of the first full paragraph with:

‘Since the 1976 revision of the Federal Rules of

Evidence, most of the circuits have expressly held that

the judge, not the jury, is to determine the admissibility

of alleged co-conspirator statements.’’;

Replace the first sentence of the final paragraph with:

‘‘This court recently joined this trend in our decisions

in United States v. Gantt, No. 78-1399 (D.C. Cir. Jan.

25, 1980) and United States v. Jackson, No. 78-1768

(D.C. Cir. Jan. 29, 1980). These two cases required the

trial judge to determine the existence of a conspiracy and

the defendant’s participation in that conspiracy by

‘substantial independent evidence’’ before permitting the

jury to consider the challenged co-conspirator statements

in its deliberations. See Jackson, slip op. at 41; Gantt,

slip op. at 25-27. They also require the trial court to find

by substantial independent evidence that the co-

conspirator statements were made in furtherance of the

conspiracy in which the defendant participated. See

Gantt, slip op. at 25. The preferred practice is for the

trial court to make these determinations before the hear-

say evidence is admitted. The court retains discretion,

however, to admit particular co-conspirator statements

conditioned on later showing of substantial independent

evidence of the three prerequisites for their admission.

See Jackson, slip op. at 38-39.?' A fair implication of

7" If the evidence is admitted ‘‘subject to connection’’ and the

government fails to prove the necessary connection, the court

should strike the statements and instruct the jury to disregard it or

else declare a mistrial. Jackson, slip op. at 39; Gantt, slip op. at 26.

If the court instead finds that the government has made the re-

quisite showing and has admitted the statements, the court should

apply the traditional standard to all the evidence in determining

whether to submit the entire case to the jury. See Curley v. United

States, 160 F.2d 222, 232 (D.C. Cir. 1947), cert. denied, 331 U.S.

837.

40a

these cases is also that where the trial judge has made the

required preliminary determinations, and decided that the

hearsay statements are admissible, he may charge the

jury to consider the defendant’s substantive guilt based

upon ‘‘all the evidence’’ presented. See Gantt, slip op. at

27. (1947) (judge to determine whether ‘‘a reasonable

mind might fairly conclude guilt beyond a reasonable

doubt’’)’’

Page 27:

Renumber present footnote 21 to become n.22; replace

‘*probable’’ in fourth line of that note with ‘‘possible’’;

Delete the word ‘‘Without’’ on line 5 and all of lines 6

through 13, inclusive, and insert in lieu thereof the

following:

‘‘Without such a determination, the judge’s use of the

‘all the evidence’ instruction is questionable. The

underlying premise for the ‘all the evidence’ instruction is

that the trial judge has previously made an independent

determination that the co-conspirator statements included

in that evidence are admissible. See Gantt, slip op. at 25.

Especially in the instant cases, which were marred by

reference to ‘Stampede’s organization,’ we are disturbed

by the trial judge’s use of the ‘all the evidence’ instruc-

tion with no indication that he made the requisite

preliminary determinations of admissibility.’’

Present footnote 22 is deleted in its entirety.

Per Curiam

For the Court

/s/ GEORGE A. FISHER

George A. Fisher

Clerk

dia

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1979

No. 78-1333

Criminal 77-00632

UNITED STATES OF AMERICA

v.

JOHN ROSCOE SLADE, A/K/A SLAVE,

Appellant

And Consolidated Cases Nos. 78-1409, 78-1410, 78-1411,

78-1412 and 78-1419

Before: BAZELON, Senior Circuit Judge

Order

Filed: July 11, 1980

It is ORDERED, by the Court, sua sponte, that the con-

curring opinion filed by Senior Circuit Judge Bazelon on

March 4, 1980 be, and it hereby is, amended as follows:

2d paragraph, last sentence, change to read:

‘‘The prosecution also successfully proposed a con-

spiracy instruction directing the jury to examine ‘‘all of

the evidence’’, but there is no indication that the trial

judge made a determination to admit the co-conspirator

hearsay statements included in that evidence.’’

3rd paragraph, lines 7-12, change to read:

‘‘read them; and it should not have directed the jury

to consider ‘‘all the evidence’’ without at least first ruling

42a

explicitly on the competency and admissibility of co-

conspirator statements swept into evidence against in-

dividual defendants by the instruction. Finally, it ought

to have framed’’

Per Curiam

For the Court

/s/ GEORGE A. FISHER

George A. Fisher

Clerk