Petition — Stalder v. United States

8021097 JAN np

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1980

PE siiccrp icc

FRED STALDER, MICHAEL K.

BENNETT, CONRAD REAM and

ROBERT REAM... SCsC#@ tition

Vs.

UNITED STATES OF AMERICA _.. Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Oe ee ee Hn eee eee ene meee «eee

IKE ALLEN LAWS, JR.

P. O. Box 830

Russellville, Arkansas 72801

Phone: 501-968-1168

L. GENE WORSHAM

505 Union Life Bldg.

Little Rock, Arkansas 72201

Phone: 501-376-3619

Counsel for Petitioners

EEE

TRE ATKINS CHROMICLE --- ATEING, ARE

SS SEER SL SORA ICTR ACES AAT ORES RETA EINE i ~ ESE CO ERNCNIE eee

IN DEX

OPINIONS BELOW _....... abetthiéieedaipaaaaa 2

JURISDICTION _._. asa nina cite: eeepc 2

QUESTIONS PRESENTED 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED _.... 3

STATEMENT OF THE CASE -. 4

ARGUMENT __ 12-23

1. The Court erred in failing to grant de- -

fendants’ motion to dismiss on the grounds

of the wrongful destruction and tamper-

ing with the evidence; and the wrongful

interference with the defense request for

testing of the alleged contraband misap-

propriated by Sheriff Davis 12

2. The Court erred in refusing to dismiss

the grand jury indictment against the de-

fendants after it was shown that the

United States attorney, in presenting

information to the grand jury, made a

false and misleading statement to the

grand jury that a co-defendant, Conrad

Ream, had confessed and implicated the

defendants, Fred Stalder and

ORG, TR ee ee 24

ii

APPENDIX “A”—Opinion of United States

Court of Appeals for the Eighth Circuit A-1

APPENDIX “B”—Order of United States District

Court, Eastern District of Arkansas,

re TPN a eee eee A-4

APPENDIX “C”—Findings of Fact and Con-

clusions of Law, United States District

Court, Eighth District of Arkansas,

Tee De eee ee A-6

APPENDIX “D”—Order of United States Dis-

trict Court, Eastern District of Arkansas,

Western Division A M18

CASES CITED

Barbee v. Warden, 331 F. 2d 842, 845

CR ol, BO acti 20

Brady v. Maryland, 373 U.S. 87, 83 S. Ct. 1194 ___.. 19

Curran vy. Delaware, 259 F. 2d 707,

711 (3d Cir. 1958) 19

Giglio v. United States, 405 U.S. 150, 92 S. Ct.

763, 31 L. Ed. 2d 104 (1972) _..... 18

Giles v. Maryland, 386 U.S. 66, 73-74, 87 S.

Ct. 793, 17 L. Ed. 2d 787 (1967) _.. .............. 19

Griffin v. United States, 87 U.S. App. D. C.

172, 183, F. 2d 990, 993 (1950) 19

Jackson v. Wainwright, 390 F. 2d 288, 295

(hth Cir. 1966) 19

iil.

Levin v. Katzenbach, 124 U.S: App. D. C. 158,

$63 F. 2d 287, 291 (1966)

Seattle v. Fettig, 10 Wash. App. 773,

OLD F Me Wee ete oe,

State v. Wright, 557 P. 2d 1, (1976) _...

United States v. Alsbrook, 336 F. Supp. 973,

980 n. 15 (D.D.C. 1971) _-

United States v. Asdrubal-Htrrera, 470 F.

Supp. 939 (D.C.N.D. Ill. 1979)

United States v. Consolidated Laundries Corp.,

291 F. 2d 563, 571 (2d Cir. 1961)

United States v. Harrison, 173 U.S. App., D.C.

260, 524 F. 2d 421, 429 n. 20 (1975)

United States v. Perry, 153 U.S. App. D.C. 89,

471 F. 2d 1057, 1063 (1972) ek

United States v. Samango, 450 F. Supp.

Rein nee ee)

United States v. Thomas, 320 F. Supp 527

SI IIE. sang See tadee kes dais oasncoecnetatied

iv

STATEMENT OF ISSUES

I,

The Court erred in failing to grant de-

fendants’ motion to dismiss on the grounds

of the wrongful destruction and tamper-

ing with the evidence; and the wrongful

interference with the defense request for

testing of the alleged contraband misap-

propriated by Sheriff Davis.

Barbee v. Warden, 331 F. 2d 842, 845

(4th Cir. 1964) . fhe

Brady v. Maryland, 373 3US. 87, 83 s Cha 1194

Curran y. Delaware, 259 F. 2d 707, 711

(Bd Cr TI ann hciitns rs

Giglio v. United States, 405 U.S. 150, 92 S. Ct.

763, 31 L. Ed. 2d 104 (1972) - ;

Giles v. Maryland, 386 U.S. 66, 713-74, | 87 1S. Ct.

793, 17 L. Ed. 2d 737 (1967) pee a ee

Griffin v. United States, 87 U.S. App. D.C.

172, 183, F. 2d 990, 993 (1950)

Jackson v. ge gaa 390 F. 2d 282, 295

(5th Cir. 1968) | b

Levin v. Katzenbach, 124 U. 18, ae D. D.C. 158,

es. oa oe ee

Seattle v. Fettig, 10 Wash. Rad 773, 519

P. 2d 1002 (1974) _

State v. Wright, 557 P. 2d # (1976) SES Aenean oN

United States v. Alsbrook, 336 F. Supp. 973,

1 a. 6 (DDC. W) _____ wo

Vv

United States v. Consolidated Laundries Corp.,

291 F.. 2d 563, 571 (2d Cir. 1961) _ 19

United States v. Harrison, 173 U.S. App., D.C.

260, 524 F. 2d 421, 429 n. 20 (1975) 21

United States v. Perry, 153 U.S. App. D.C. 89,

oi ©. 38 0, BS CS) 18

II.

The Court erred in refusing to dismiss the

grand jury indictment against the defend-

ants after it was shown that the United States

attorney, in presenting information to the

grand jury, made a false and misleading

statement to the grand jury that a co-de-

fendant, Conrad Ream, had confessed and

implicated the defendants, Fred Stalder

and Robert Ream.

CASES

United States v. Asdrubal-Herrera, 470 F. Supp.

989 (D.C.N.D. Ill. 1979) REE N 26

United States v. Samango, 450 F. Supp. 1097

REE e rete nt me cw 26

United States v. Thomas, 320 F. Supp. 527

Era Un ns 27

RULES

Canons of Professional Ethics, ABA, 28 C.F.R.

§45-735-1 (b) os 27

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1980

MPI ideo becients

FRED STALDER, MICHAEL K.

BENNETT, CONRAD REAM and

RU. Bee 5A REM He SR Petitioners

vs.

UNITED STATES OF AMERICA __... Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners, Fred Stalder, Michael K. Bennett,

Conrad Ream and Robert Ream, respectfully pray

that a writ of certiorari issue to review the judgment

and opinion of the opinion of the United States Eighth

Circuit Court of Appeals entered in this proceeding

on the 11th day of November, 1980.

2

Opinions Below

The opinion of the Court of Appeals below (Ap-

pendix A), will not be published, in accirdance with

directions received from the court. The order of the

United States District Court, Eastern District of Ark-

ansas, Western Division, was entered April 25, 1980,

(Appendix B) and an order of said court was enter-

ed April 30, 1980, (Appendix C), These orders wtre

not designated for publication.

Jurisdiction

The judgment of the United States Court of Ap-

peals, Eighth Circuit, was entered on the 11th day

of November, 1980. Rehearing was not sought. The

jurisdiction of this court is invoked under 28 U. S. C.

$1254 (1).

Questions Presented

1. Whether the Court erred in failing to grant

Defendants’ Motion to Dismiss on the grounds of

the wrongful destruction and tampering with evi-

dence; and the wrongful! interference with the de-

fense request for testing of the alleged contraband

misappropriated by Sheriff Davis.

3:

2. Whether the Court erred in refusing to dis-

miss the Grand Jury Indictment afainst the Defend-

ants after it was shown that the United States At-

torney, in presenting information to the Grand Jury,

made a false and misleading statement to the Grand

Jury that a co-defendant, Conrad Ream, had con-

fessed and implicated the defendants, Fred Stalder

and Robert Ream.

Constitutional and Statutory Provisions Involved

21 U.S. C. §846:

Any person who attempts or conspires to com-

mit any offense defined in this title is punishable by

imprisonment or fine or both which may not exceed

the maximum punishment prescribed by the offense,

the commission of which was the object of the at-

tempt or conspiracy.

Statement of the Case

On October 3, 1978, a plane landed on an airstrip

near Heber Springs, Arkansas, in an area known as

“Helleat Heights”. In attempting to take off from

said airstrip, the plane evidently turned over a Hertz

rental truck. This truck was discovered and report-

ed to Sheriff Ron Davis later the same day, and al-

legedly contained approximately 6,500 pounds of

marijuana packed in boxes and bales of approximate-

ly 42 pounds each. Sheriff Ron Davis immediately

called in the assistance of the Arkansas State Police

and the federal Drug Enforcement Agency (DEA).

The Arkansas State Police responded by sending

Sergeant Lynn Chachere, a criminal investigator, to

assist, and the federal DEA sent the following three

agents: Johnny Maack, Larry Carver and Michael

Vowell.

Representatives of the three agencies then placed

a stakeout on the overturned truck and on the fol-

lowing day, October 4, two persons were arrested,

namely Robert Ream, one of the defendants in this

cause, and a Joe Kelly. They were charged in the

Circuit Court of Cleburne County, Arkansas with

5:

the offense of possession of marijuana for sale. After

their arrest the truck was righted and was taken to

the rural home of Deputy Sheriff Gerry Holmes lo-

cated appoximately eight miles from Heber Springs,

Arkansas, where it was locked with a padlock and

Deputy Holmes was given the key. (Tr. 178) The

truck was left in the sole custody of Deputy Holmes,

who had been up the previous two days and the

previous night on the stakeout, to guard until the

following morning. (Tr. 316) There is some ques-

tion as to whether or not the truck was weighed,

but the Government’s contention is that Deputy

Holmes weighed it on a bu'k scale and that by sub-

tracting the weight from the empty truck wenght,

determined there were 6,500 pounds of alleged mari-

juana on the truck. (Tr. 213 and 229) It is admitted

by the government in its answer to request for in-

formation, that the weight ticket was either lost or

destroyed. On the following day, October 5th, rep-

resentatives of the county, state and federal Govern-

ment met to esort the truck to North Little Rock,

Arkansas. Just prior to leaving the home of Deputy

Holmes, however, Sheriff Ron Davis stated that he

wanted to keep some of the alleged marijuana, and

the truck was unloaded and three bales or boxes

6

were placed in an unlocked wooden shed behind

Deputy Holmes’ house. (Tr. 173 and 302) After this

took place the truck was escorted to North Little

Rock, Arkansas’s public incinerator where the con-

voy was met by Mr. Manuel Holcomb, Chief Chemist

for the Arkansas Crime Lab, and by Mary Buehler,

assistant chemist. Mr. Holcomb took a picture of

the alleged marijuana before it was destroyed and,

when compared to the picture taken at the airstrip

on Helleat Heights, shows that a large amount of

the alleged marijuana was missing. Mrs. Buehler

took eighteen random samples from each forklift

load of the bales and boxes before it was destroyed.

(Tr. 291)

These samples tested positive for marijuana and

were retained by her for trial purposes. Arkansas

State Police Sergeant Lynn Chachere, having become

concerned about the alleged marijuana removed from

the truck by Sheriff Davis, delivered a confidential

memo to his superior (Tr. 174) resulting in direc-

tions that he determine the amount of marijuana

removed and obtain a receipt from Sheriff Ron Davis.

By using large scales that were present at the in-

cinerator, Sergeant Chanchere weighed three bales

of the alleged marijuana, which he considered to be

va

average, coming up with an approximate average

weight of 42 pounds per bale. Thereafter he receiv-

ed a receipt from Sheriff Ron Davis for 120 pounds

of marijuana which receipt was made part of the

record in this cause. (Tr. 173-174) No other effort

was made to weigh the alleged marijuana before it

was destroyed and no effort was made to count the

number of bales on the truck. However, both Ser-

geant Lynn Chachere and assistant chemist Mary

Buehler estimated that there were 40 to 50 bales

at the most, with an average weight of 42 pounds.

This would indicate that there was between 1,680

and 2,100 pounds of marijuana with no explanation

as to what happened to the remaining portion of the

original 6,500 pounds. (Tr. 291 and 295) It is ad-

mitted that no court order was obtained for the de-

struction of the marijuana and that the defendants

did not have an opportunity to examine it. It is

also admitted that representatives of the county,

state and federal drug enforcement agencies were

all present at the destruction, though it is not clear

who was in charge.

Thereafter, beginning on August 22, 1979, the

defendant Robert Ream was tried in the Ciruit Court

of Cleburne County, Arkansas for the charges pend-

8.

ing against him. Joe Kelly had since become a wit-

ness for the federal Government and was not tried.

At the state court proceeding all members of law

enforcement testified that all of the marijuana had

been destroyed at the incinerator; and denied any

tampering or removal of any of the contriband from

the truck, prior to its destruction. On the fifth day

of trial the matter of the missing marijuana which

was in Sheriff Ron Davis’ possession became known

to the defendant and he moved for dismissal by reason

of the wrongful suppression of evidence and falsifi-

cation of testimony. However, the court granted a

mistrial. At this point the defendant’s counsel form-

a.ly moved the court for the right to inspect and

test the marijuana in Sheriff Ron Davis’ possession

for the purpose of determining if it was in fact mari-

juana; and to see if they could determine where it

was grown. However, Sheriff Ron Davis, two days

later (the following Monday), (Tr. 337) without a

court order or notice to the defense, took the alleged

marijuana in his possession to Little Rock to the

State Crime Lab where it was promptly destroyed,

without any test or analysis being performed, and

without an opportunity for defendant’s counsel to

examine it or run any test on the substance. (Tr. 279-

9

280) The state court case is presently on appeal to

the Supreme Court of Arkansas to determine whether

it should have been dismissed.

Thereafter, the federal Government stepped in-

to the picture and subpoenaed certain persons before

the federal grand jury in Little Rock, Arkansas for

the purpose of obtaining indictments arising out of

the aforementioned alleged marijuana by said fed-

eral grand jury. The Assistant United States At-

torney Don Curdie, which examining defendant Fred

Stalder about his relationship with Conrad Ream,

asked him the following question:

MR. CURDIE: “Has Mr. Ream told you that he

has given testimony that you were present at that

airstrip on the 2nd of October, and that you took

part in the transportation of the marijuana from

Columbia to Heber Springs, Arkansas; and that

you and Robet Ream flew to Harrisonville, Mis-

souri after the truck that the marijuana was

loaded into, after it was flown to Heber Springs,

overturned.”

This question was false, as it was shown in a

hearing on a motion to dismiss the indictment in

this cause that the defendants Robert Ream and

Conrad Ream never had testified before the grand

10

jury, nor had they testified in the state court pro-

ceedings, nor had they made any statements or con-

fessions whatsoever. (Tr. 356-357) The federal grand

jury returned indictments against the defendants

Conrad Ream and Robert Ream, Fred Stz'der and

Michael K. Bennett, and others, resulting in the pres-

ent case.

Motions were filed by all defendants in this

cause to dismiss the charges because of the destruc-

tion of evidence; to dismiss the charges because of

improper inference given the grand jury by the As-

sistant United States Attorney that Conrad Ream

had confessed and implicated in his testimony de-

fendant Stalder and his brother, Robert Ream; and

to suppress the testimony of Ardell Mears since he

had gained information at a time when he was at

least ostensively the client of attorney Laws, and

privy to coufidential information regarding the de-

fense of Stalder, Bennett and Robert and Conrad

Ream.

When the court overruled each of these motions,

defendants Stalder, Robert Ream and Conrad Ream,

stipulated the facts were true as charged in one count

of the indictment, and allowed the court to so find

11

and sentence them. The United States Government

dismissed the felony charges pending against Mich-

ael K. Bennett and charged him in the same cause

with a misdemeanor, to which the same stipulation

was entered and sentence given. In the stipulation

all four defendants reserved all their rights to ap-

peal the court’s decision on the above mentioned

motions.

12

I.

THE COURT ERRED IN FAILING TO GRANT

DEFENDANTS’ MOTION TO DISMISS ON

THE GROUNDS OF THE WRONGFUL DE-

STRUCTION AND TAMPERING WITH THE

EVIDENCE; AND THE WRONGFUL INTER-

FERENCE WITH THE DEFENSE REQUEST

FOR TESTING OF THE ALLEGED CONTRA-

BAND MISAPPROPRIATED BY SHERIFF

DAVIS.

When the large truck was found overturned on

an airstrip known as “Helleats Heights” near Heber

Springs, Arkansas, containing what purported to be

a large quantity of marjuana, the Cleburne County

Sheriff’s Department called in the assistance of the

United States Government through the Drug En-

forcement Agency, hereinafter referred to as DEA,

and the Arkansas State Police to help in its investi-

gation. On October 4 two suspects, one of whom

is one of the present defendants, Robert Ream, were

arrested in the vicinity of the overturned truck.

Later that day the truck was taken to the home of

Deputy Sheriff Gerry Holmes, located in a secluded

area approximately eight miles from Heber Springs,

Arkansas, where it was padlocked and stored over

13

night in the sole custody of deputy Holmes, who re-

tained the padlock key. (Tr. 180)

The following day, October 5, representatives

from the State Police and the Cleburne County

Sheriff’s Department went to Deputy Sheriff Holmes’

residence to reclaim the contraband and to trans-

port it to North Little Rock, Arkansas to the city

incinerator. At this time Sheriff Ron Davis remov-

ed three bales from the truck and placed them in an

unlocked barn where they allegedly remained stored

for approximately eleven months. A_ receipt was

subsequently procured from Sheriff Davis by the

State Police Investigator, Lynn Chachere, a few days

later following a confidential memo from Sergeant

Chachere to his supervisor concerning the removal

of the marijuana. (Tr. 175) It is alleged that some

time on the 4th or 5th of October the truck was

weighed by Deputy Holmes and that the marijuana

weighed approximately 6,500 pounds, however, he

claims to have lost the weight receipt. The mari-

juana was taken in convoy containing state, county

and federal officers, to the incinerator in North Little

Rock, Arkansas, where Chief Chemist Manuel Hol-

comb and his assistant, Mary Buehler, inspected the

14

marijuana and took eighteen random samples. (Tr.

291)

Even though the Arkansas State Police knew at

the time of destruction that a portion of the mari-

juana had been misappropriated by the Sheriff, and

that there had been other opportunities for tamper-

ing with the evidence while left overnight with Deputy

Holms, who had retained the key, they permitted the

evidence to be destroyed without determining the

extent of tampering or pilferage. The State Police

admitted that no more than 50 males of contraband

reached the incinerator, weighing approximately 42

pounds each, or a total weight of approximately

2,000 pounds. It was obvious that two-thirds of the

load or approximately 4,500 pounds had somehow

vanished from the Holmes farm. At the time of the

destruction, the Arkansas State Police unquestion-

ably knew two things: One, that 4,500 pounds, or

thereabouts, of the alleged contraband had vanished

and the load had been tampered with; and _ two,

Sheriff Davis was seen removing three bales of the

contraband and secreting it in the Holmes barn.

There is no question that this in itself constitutes,

under these circumstances, a “bad faith destruction”

of the evidence. The two agents for the DEA were

15

present before and after the tampering and, there-

fore, had to have knowledge that the size of the load

had been drastically depleted. It evidently appears

everybody neglected to either weigh the load or count

the bales, which explains why there was no fed-

eral prosecution at the outset for approximately 114

years. The marijuana was admittedly hastily de-

stroyed without any semblance of a court order, or

any opportunity for examination by the defendants.

State charges were filed against defendant Robert

Ream and the government witness Joe Kelly, and a

trial was held during the week of August 22, 1979.

During the course of the trial members of the law

enforcement testified concerning the storage, safe

keeping and custody of the contraband up to its de-

struction.. All denied any tampering or pilferage

or other misappropriations and claimed the truck

was never opened and that the entire 6,500 pounds

reached the incinerator and were destroyed. During

the presentation of the defense case, information

developed that the Sheriff had misappropriated three

bales, which was still secreted in the Holmes’ barn.

At this point in the proceedings the defense formally

moved the state court for the right to inspect and

test the contraband from the Holmes’ barn to de-

16

termine whether it was marijuana, and to determine

where it had been grown or produced. This is ad-

mitted in stipulation by counsel on Page 255 of the

transcript. However, before defendants were able

to examine said marijuana, it was hastily carried

by Sheriff Davis to the State Crime Lab with direc-

tions to destroy it. No chemical analysis of any

kind was made of the contraband from the Holmes’

farm. The defense was a second time deprived of

the right to test or examine the evidence, and de-

prived of the right to prove tampering with the evi-

dence and the full extent of the misappropriations

or tampering. The state proceeding resulted in a

mistrial because of the handling of the evidence.

Defendants, however, had moved for a dismissal and

this matter is presently on appeal to the Supreme

Court of the State of Arkansas. While the testi-

mony was that the federal DEA agents were not in

charge of the investigation per se, it is admitted that

they were present at all stages of the investigation

from discovery of the evidence to its destruction.

(Tr. 226, 227 and 228)

There was other evidence to suggest an entire

household of improprieties in the conduct of the

investigation, i. e., letters which would have proven

17

that Mears was the lessee or person who rented the

truck, rather than Ream and Kelly as they claimed,

were lost or destroyed by the Sheriff, even the air-

port itself was by person or persons unknown physi-

cally removed and vanished without a trace. There

was no explanation given for this missing 4,500

pounds of alleged marijuana. The pilot of the plane,

Keat Griggers, turned government witness; Joe Kelly,

who flew with the pilot to import the alleged mari-

juana into this country, was given immunity; Ardell

Mears, who was to receive the contraband, and store

and distribute it from his lake house on Greers Ferry,

together with his wife, received immunity.

No action of any kind was taken against the

sheriff or his deputies, or any of those who may have

been involved in the misappropriation of the cargo.

It is obvious that when the state proceeding

reached the point of awkward embarressment for

the local officers, the D. E. A. was finally prevailed

upon to initiate prosecution through the federal sys-

tem. In the U. S. Attorney’s pleadings, he character-

izes the act of the sheriff in misappropriating the

contraband as “retaining it for evidence” and his

false testimony as “forgetting”. Thre was no ques-

18.

tion, however, as to how the State Police character-

ized his behavior in its confidential memo—and tried

to subtly remind him of the seriousness of his act.

The Appellants here contend they were denied

due process and the right to a fair and impartial

trial by the misbehavior of the law enforcement.

Due process imposes certain procautions on law

enforcement and investigatory agencies to insure that

each criminal trial is a search for the truth and not

an adversary game. United States v. Perry, 153 U. S.

App. D. C. 89, 471 F. 2d 1057, 1063 (1972). One such

constitutional obligation, the disc’osure of evidence

to the defendant, is well established. “Suppression

by the prosecution of evidence favorable to an ac-

cused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution.” Brady v. Maryland, 373 U. S. 83, 87,

83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215 (1963). See

Giglio v. United States, 405 U. S. 150, 92 S. Ct. 763,

31 L. Ed. 2d 104 (1972); Seattle v. Fettig, 10 Wash.

App. 778, 519 P. 2d 1002 (1974). 3

Under the rule governing suppression of evi-

dence, the circumstances surrounding the nondis-

19

closure, including the motivation of the party re-

sponsible for the suppression, are irrelevant. See

. g., Jackson v. Wainwright, 390 F. 2d 288, 295 (5th

Cir. 1968); United States v. Consolidated Laundries

Corp.., 291 F. 2d 563, 571 (2d Cir. 1961) This is so

because the constitutional requirement is “not pun-

ishment of society for misdeeds of a prosecutor, but

avoidance of an unfair trial to the accused.” Brady

v. Maryland, supra, 373 U. S. at 87, 83 S. Ct. at 1197.

The United States Supreme Court has not attempted

to precisely define “material evidence” or the degree

of prejudice which must be shown by the defendant

to make out a violation. See Giles v. Maryland, 386

U. S. 66, 73-74, 87 S. Ct. 798, 17 L. Ed. 2d 737 (1967)

Other courts have defined materiality quite broadly.

See Levin v. Katzenbach, 124 U. S. App. D. C. 158,

363 F. 2d 287, 291 (1966) (evidence which “might

have led the jury to entertain a reasonable doubt

about (the defendant’s) guilt”); Griffin v. United

States, 87 U.S. App. D. C. 172, 183, F. 2d 990, 993

(1950) (“evidence that may reasonably be consider-

ed admissible and useful to the defense”); Curran v.

Delaware, 259 F. 2d 707, 711 (3d Cir. 1958) ((“pertin-

ent facts relating to (the) defense”). Of course,

neither the police nor the prosecution are to decide

20

for the defense what is favorable or material evi-

dence. Cf. Barbee v. Warden, 331 F. 2d 842, 845 (4th

Cir. 1964 ); Griffin v. United States, supra at 993. If

the defense has established that the suppressed evi-

dence is material, the court may conclude that due

process has been denied and that the error can he

corrected by a new trial at which the defendant will

have full access to the evidence.

In cases like the one before us, however, the

approach outline above is not feasible. Here the evi-

dence has been destroyed and the defendants are un-

able to examine and review the same. The amount

of marijuana was not weighed or measured by any

law enforcement agency and the amount set out in

the indictment is merely a guesstimate. The mgari-

juana was not destroyed on any court order but was

evidently, according to the answers to the request

for discovery, destroyed because they did not have

a suitable place to store it. This, of course, is not a

valid reason for destruction of material evidence.

In the case of State v. Wright, 557 P. 2d 1, a 1976

Washington case directly in point, there was certain

evidence that would require freezing. In that case

the police officers destroyed the evidence since there

21.

was no room in the freezer to store it and the court

held that this was in no way a valid reason for de-

struction.

It is not necessary, as the U. S. Attorney evident-

ly thinks, that the destruction be in “bad faith”. The

Wright case specifically held that the motivation of

the destruction is not material. The purpose of the

duty of preservation is to insure a fair trial for the

accused and not to punish police officers. See Brady

v. Maryland, 373 U.S. 87, 83 S. Ct. 1194. In the case

at bar the destruction was intentional. No effort

was made to prezerve the evidence. No effort was

made to secure a court order for its destruction and

no effort was made to notify the defendants prior

to its destruction. Neither administrative conveni-

ence nor inadequate facilities justify failure to pre-

serve potential evidence in such cases. See United

States v. Harrison, 173 U. S. App., D. C. 260, 524 F.

2d 421, 429 n. 20 (1975) ; cf. United States v. Alsbrook,

336 F. Supp. 973, 980 n. 15 (D.D.C. 1971).

The defendants maintain that the evidence de-

stroyed in this case was material to their cause of

action in that:

22

One: The amount of marijuana involved is cruc-

ial to the trial of this cause.

Two: Adequate testing could determine the

type of marijuana and what location it was manu-

factured in, which is an essential element of the crime

charged.

Three: Adequate testing could determine wheth-

er, in truth or fact, the material found is marijuana

or some other closely resembled substance.

Four: The extent of pilferage or tampering with

the evidence by law enforcement, and the integrity

of the chain of custody or possession..

The District Court was evidently quite concern-

ed about the manner in which the evidence had been

handled in this case. In her opinion on page 350 of

the transcript, the court stated:

“The Court agrees with statements made by

counsel for both the defendants and the govern-

ment that this case has certainly been bungled

and that the officers have not lived up to the

highest standards of their profession. But the

Court finds that the marijuana was burned at

the direction of the Arkansas State Police and

that the DEA and federal officials that were in-

23.

volved were more or Jess acting subserviant to

them in that they were assisting. And the Court

thinks there is a lack of showing of any bad

faith on the part of the federal agents.

Now, it might have been poor judgment in

that they didn’t step in and say, “Let’s don’t do

this, let’s wait awhile.” And I think it’s impera-

tive that thee officials handling cases like this

be aware of the fact that the evidence, which

should be introduced and should be available to

both sides at the time of trial, be available to the

Court if it’s needed during the trial. It’s very

dangerous to destroy the evidence... ”

A good review of the law on this subject is con-

tained in 75 Columbia L. R. 1355 Pages 1375 to 1380,

“The Right to Independent Testing: A New Hitch

in the Preservation of Evidence”.

It is submitted that the court erred in failing to

suppress the evidence in this case which had been im-

properly handled and improperly destroyed, thereby

denying the defendants the right to a fair trial and

a fair opportunity to examine the evidence to be used

in their trial.

24

II.

THE COURT ERRED IN REFUSING TO DIS-

MISS THE GRAND JURY INDICTMENT

AGAINST THE DEFENDANTS AFTER IT

WAS SHOWN THAT THE UNITED STATES

ATTORNEY, IN PRESENTING INFORMA-

TION TO THE GRAND JURY, MADE A FALSE

AND MISLEADING STATEMENT TO THE

GRAND JURY THAT A CO-DEFENDANT,

CONRAD REAM, HAD CONFESSED AND IM-

PLICATED THE DEFENDANTS, FRED STAL-

DER AND ROBERT REAM.

The record in this case shows that the Assist-

ant United States Attorney, Don Curdie, while con-

ducting the grand jury investigation and in examin-

ing the defendant, Fred Stalder, falsely implied to

the grand jury that co-defendant Conrad Ream had

confessed and implicated defendants Fred Stalder and

Robert Ream. While examining defendant Fred

Stalder about his relationship with Ream, the As-

sistant U. S. Attorney asked Mr. Stalder the follow-

ing question:

“Has Mr. Ream (Conrad) told you that he has

given testimony that you were present on the

airstrip on the 2nd day of October and that you

25.

took part in the transportation of the marijuana

from Columbia to Heber Springs, Arkansas, and

that you and Robert Ream flew to Harrisonville,

Missouri after the truck that the marijuana was

loaded onto after it was flown to Heber Springs

overturned?” (Tr. 359)

There was no basis in fact for this insinuation.

The U. S. Attorney was aware of the entire investi-

gation in this cause and admitted having a copy of

the transcript of the state trial. He knew that Con-

rad Ream had never confessed or given any testi-

mony whatsoever in state court or before the grand

jury, other than to state his name, address and oc-

cupation. Under these circumstances the defend-

ants made a motion to dismiss the grand jury in-

dictment because of the statement made by the As-

sistant U. S. Attorney to defendant Fred Stalder

while on the witness stand testifying before the grand

jury.

On Page 359 of the transcript, in trying to ex-

plain this question, the following testimony took

place:

THE COURT: Where did you get the informa-

tion that he testified in the state trial?

26.

MR. CURDIE: From conversations with agents

that I was working with.

THE COURT: And you went before the Grand

Jury on the basis of conversations that you’d

had and asked questions that seem to be state-

ments of fact?

MR. CURDIE: Your Honor, I do it all the time.

It’s conversations to me — it’s an investigatory

process, Your Honor.

THE COURT: All right. You don’t have any-

thing else to say in defense of your position?

MR. CURDIE: No, I don’t.

Prosecutorial misconduct before a grand jury

can be grounds for dismissal of the indictment. United

States v. Samango, 450 F’. Supp. 1097 (D. Hawaii 1979).

In that case the United States Attorney relied upon

transcripts from a previous hearing which he had

reason to believe were perjured. In United States v.

Asdrubal-Herrera, 470 F .Supp 939 D.C.N.D. Ill. 1979),

the indictments were dismissed where the prosecu-

tor knowingly presented false evidence, which was

injurious to the defendant, to the grand jury. In

that case the court said that the trust of the grand

jury in the United States Attorney was misplaced

and the indictments were not based upon independ-

ent and informed information.

27

It should be pointed out that the United States

Attorney is subject to the Constitution, statutes, court

rules, and case law as any other person. Attorneys

employed by the United States are subject to the

Canons of professional ethics of the American Bar

Association. 28 C.F.R. §45-735-1 (b). While the

American Bar Association Projects On Standards for

Criminal Justice, Standards Relating to Prosecution

Function, are not binding on the court, it has been

recognized as setting the proper standards of profes-

sional conduct. United States v. Thomas, 320 F. Supp.

527 (D.D.C. 1970). In the context of grand jury prac-

tice, the ABA standards state as follows:

“The prosecutor should not make statements

or arguments in an effort to influence grand jury

action in a manner which would be unpermissible

at trial before a petit jury.” ABA Standards, The

Prosecution Function §3.5 (b) (1971).

The Standards go on to state as follows:

“It is unprofessional conduct to ask a ques-

tion which implies the existence of a factual pre-

dicate which the examiner knows he cannot sup-

port by evidence.” ABA Standards, The Prosecu-

tion Function §5.7 (1971).

There is no question in the case at bar that the

statement made by Assistant United States Attorney

23°

Don Curdie in the grand jury room was unprofes-

sional conduct and a viclation of these rules, since

it certainly implied to the grand jury that the de-

fendant Conrad Ream had already confessed to the

crime and had implicated Fred Stalder.

Mr. Curdie knew when the statement was made

that it was false. He was certainly aware that Mr.

Ream had not made any statements whatsoever to

the grand jury, as he admitted on April 28 to this

court. He also had in his possession at that time a

complete transcript of the state trial in this matter

and knew that Mr. Ream had not taken the stand

or made any statements in the state court trial

It is respectfully submitted that the only effect-

ive way this court has of supervising the conduct of

the United States Attorney before the grand jury

is to dismiss indictments predicated upon prosecu-

torial false statements and unprofessional conduct.

It is further submitted that the court erred in

not dismissing the indictment against Fred Stalder,

Conrad Ream and Robert Ream since the grand jury

could have returned the indictment based upon the

prosecutor’s false statement that Conrad Ream had

confessed and implicated Fred Stalder and Robert

Ream.

29.

SUMMARY AND CONCLUSION

Appellants, therefore, pray this court enter an

order dismissing the indictments against these ap-

pellants for the reasons set out above.

Respectfully submitted,

L. GENE WORSHAM

Attorney at Law

505 Union Life Bldg.

Little Rock, Arkansas 72201

ATTORNEY FOR CONRAD REAM

and ROBERT REAM, Appellants

and

IKE ALLEN LAWS, JR.

Attorney at Law

Post Office Box 830

Russellville, Arkansas 72801

ATTORNEY FOR FRED STALDER and

MICHAEL K. BENNETT, Appellants

By: IKE ALLEN LAWS, JR.

30:

‘CERTIFICATE. OF SERVICE |

A copy of the foregoing was served on the United

States of America by serving Solicitor General, De-

partment of Justice, Washington, D. C. 20530, and

upon Don Curdie, Assistant U. 8. Attorney, U. S.

Courthouse and Postoffice Building, Little Rock,

Arkansas 72203, by depositing the document in the

United States Postoffice at Russellville, Arkansas,

with first-class postage prepaid, addressed to said

counsels, at their addresses above stated, on this3.9

day of _Dorowhw- 19. $0.

IKE ALLEN LAWS, JR.

L. GENE WORSHAM

A+t

APPENDICES

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 80-1551 and 80-1552

No. 80-1551

UNITED STATES OF AMERICA _. Appellee

v.

FRED STALDER and MICHAEL

| ae. RM ACERS ER ae NC cea Appellants

Appeal from the United States District Court

for the Eastern District of Arkansas

No. 80-1552

UNITED STATES OF AMERICA ___- Appellee

V.

CONRAD REAM and ROBERT REAM _.. Appellants

Appeal from the United States District Court

for the Eastern District of Arkansas

Submitted: October 16, 1980

Filed: November 11, 1980

Before LAY, Chief Judge, BRIGHT and McMILLIAN,

Circuit Judges.

PER CURIAM.

A-2

Defendants Stalder, Bennett, Conrad Ream and

Robert Ream appeal their convictions under 21 U.S.C.

$§ 841 (a), 846, and 952 (2). We affirm for the reas-

ons stated below.

The first allegation of error concerns the dist-

rict court’s deniel of defendants’ motion to dismiss

the federal grand jury indictments because of wrong-

ful destruction of evidence by the government. The

evidence in question consisted of a large quantity of

marijuana which was destroyed by law enforcement

officials after samples had been taken because of

lack of storage facilities. Defendants contend that

they were harmed by the destruction of the evidence.

The record is not clear as to the exact quantity of

marijuana that was confiscated and defendants sug-

gest that they were in some way harmed in that they

were denied an opportunity to inspect the marijuana

samples taken by the chemist. The record indicates,

and it is uncontroverted, that the evidence was avail-

able for defendants’ inspection. The district court

correctly denied defendants’ motion.

Defendants also allege that the district court

erred in refusing to suppress the testimony of Ardell

Mears. It was alleged that Mears, who was named in

A-3

the original indictment and lated agreed to testify

for the government, had employed the same attorney

as the defendants and later provided confidential

information to the United States Attorney’s office.

There is no evidence that any confidential evidence

was disclosed to the government by Mears’ attorney.

Masterian v. McManus, 554 F. 2d 813, 821 (8th Cir.

1977). See Weatherford v. Bursey, 429 U.S. 545

(1977).

The third and final contention is that the district

court erred in refusing to dismiss the indictment on

the basis of prosecutorial misconduct before the grand

jury. Though the prosecutor did ask a question based

on false information, it does not appear that this in-

cident alone so prejudiced the grand jury so as to

require a dismissal of this indictment. United States

v. Blue, 384 U.S. 251, 255 n. 3 (1966) ; United States v.

Cady, 567 F. 2d 771, 776 (8th Cir. 1977).

Accordingly, the judgment of the district court

is affirmed.

ATTEST:

CLERK, U. 8. COURT OF APPEALS,

EIGHTH CIRCUIT.

b-4

APPENDIX “B”

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

UNITED STATES OF AMERICA __... Plaintiff

v. No. LR-CR-80-8

CONRAD REAM (1)

WILLIAM GORDON GREEN (3)

FRED STALDER (4)

ARDELL MEARS (5)

ROBERT REAM (6)

MICHAEL K. BENNETT _........_.___... Defendants

ORDER

A hearing on pending motions having been held

in this case on April 11, 1980, IT IS HEREBY OR-

DERED:

Defendants’ motion to suppress the testimony of

Ardell Mears is denied.

Regarding the Government’s motion on conflict

of interests, the Court heard testimony of defend-

ants Fred Stalder, Michael K. Bennett, Robert Ream,

and Conrad W. Ream, Jr. Each of these defendants

was informed fully of his right to have separate coun-

sel and of the possibility of a conflict of interests;

however, each defendant individually waived his right

to have separate counsel. The United States Attorney

was afforded the opportunity to cross examine each

of these defendants on that issue. After hearing

all evidence, the Court held that the defendants’ at-

torneys would not be disqualified since the defend-

ants individually had stated that they recognized

that their rights had been waived on this issue.

IT IS SO ORDERED.

Dated this 25th day of April, 1980.

Elsijane T. Roy,

United States District Judge

A-6...

APPENDIX “C”

IN THE UNITED STATES DISTRICT COURT

. EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

UNITED STATES OF AMERICA ........ _ Plaintiff

v. LR-CR-80-8

CONRAD REAM, KEAT GRIGGERS,

WILLIAM GORDON GREEN, FRED

STALDER, ARDELL MEARS, ROBERT

REAM, MICHAEL K. BENNETT,

CHARLES B. MEDLEN . Defendants

FINDINGS OF FACT AND CONCLUSIONS

OF LAW

Defendant Green contends that the eyewit-

ness identification of him by Joe Evan Kelly should

be suppressed because the initial out-of-court identi-

fication was made under circumstances which were

unnecessarily suggestive. The United States con-

tends that the out-of-court identification was not

impermissively suggestive; that the totality of the

circumstances considered, there was no likelihood of

irreparable misidentification.

A-7

On April 4, 1980 the defendant William Gordon

Green’s Motion To Suppress eyewitness identifica-

tion was heard in open court and the Court makes

the following determination based on the testimony:

FINDINGS OF FACT

1. Joe Kelly was arrested on October 4, 1978

in Heber Springs, Arkansas.

2. He subsequently became an informant for the

United States, and he gave a statement on June 20,

1979 wherein he had flown from Tucson, Arizona to

Bay City, Texas, to Colombia, South America, with

two pilots: Keat Griggers and “Billy” whose last name

was unknown. When he gave his first statement, he

described “Billy” as a white male, about 36 years

old, 5’ 9”, stocky build, light brown naturally curly

hair, from Florida, and worked in the air-condition

business in Florida. He said “Billy” was the co-pilot

on the trip to Colombia.

8. Subsequent to the description being given to

Drug Enforcement Administration Agent Robert D.

Morris, a driver’s license photograph was obtained

of the defendant, William Godon Green, from records

in the State of Florida.

As.

-4) On approximately July 24, 1979, Joe Kelly

flew by commercial airlines from California to Little

Rock, Arkansas. The flight was an all night flight.

When he arrived in Little Rock, he was taken to the

office of the Drug Enforcement Administration in

the Union Bank Building. DEA Agent Robert D.

Morris showed Kelly one picture of William Gordon

Green and asked Kelly if he recognized him. Kelly

said he thought the man in the picture was the “Billy”

he flew with, that he had the same features, but be-

cause he was so tired from the flight, he wanted to

wait until after getting some sleep before making a

positive identification. He did not want to make a

mistake on a serious matter such as this was.

5. Agent Morris agreed, and Kelly left and got

plenty of rest until the next morning. He came back

to the DEA office, and he asked to see the picture

again. Agent Morris showed him the same photo-

graph as shown the day before and Kelly said he

was positive the person in the picture was “Billy”

with whom he had flown to South America.

6. Kelly, on September 22, 1978, flew out to

Tucson, Arizona, at the request of Conrad Ream to

represent Ream’s interests in a load of marijuana

A-9

which was to be smuggled into the United States

from Colombia, South America. He flew by way of

commercial airlines. When he was picked up at the

Tucson, Arizona airport by Conrad Ream, “Billy”

was introduced to him by Ream as one of the pilots

with whom he (Kelly) was to fly to South America.

Kelly then traveled in the same car with “Billy” to a

motel and Kelly obtained a room. Later, “Billy’,

Kelly, and Ream had dinner together and talked about

the upcoming trip. It developed that the trip would

not be taken because the other pilot, Keat Griggers,

had other commitments and could not fly. Kelly flew

back to Florida, with instructions to return to Tuc-

son the following week.

7. On September 29, 1978, Kelly flew back to

Tucson and once again met with Ream and “Billy”

and Keat Griggers. Kelly, “Billy” and Griggers ate

together, went to a store together to get supplies for

the trip, went to the airport together, boarded the

plane together, and flew together to Bay City, Texas.

Kelly sat next to “Billy” for the majority of the trip

and talked to him. On arrival in Bay City, Texas,

Griggers rented a car and drove himself and “Billy”

and Kelly to a motel, where he rented three rooms.

Griggers, Kelly and “Billy” had dinner together and

A-10.

talked. The stop was made in Bay City to refuel

the plane. The next morning they boarded the plane

and flew approximately 12 hours to Colombia, South

America where the hundreds of pounds of marijuana

were loaded onto the plane. During the trip to South

America, Kelly sat next to and talked to “Billy”.

While on the ground, “Billy” showed Kelly how to

service oil to the plane. After the loading of the

marijuana, the three men flew about 14 hours to the

United States, landing on an airstrip near Heber

Springs, Arkansas. Upon landing, Green helped

Kelly unload the marijuana from the plane. After

it was unloaded, “Billy” and Griggers took off as

planned in the plane and left Kelly on the ground.

8. The evidence presented at the hearing on

the defendants’ motion to suppress, when considered

in its entirety, demonstrates Kelly’s overwhelming

opportunity to observe “Billy”, and Kelly had reason

to be accurate as to his description and the impres-

sion of Billy was imprinted indelibly on his mind.

CONCLUSIONS OF LAW

1. The United States has the burden of prov-

ing by clear and convincing evidence that the identi-

fication testimony resulted from independent obser-

A-11

vation and not from a pretrial confrontation which

is so impermissibly suggestive as to create a very

substantial likelihood of misidentification. Manson

v. Brathwaite, 482 U.S. 98, 113-116 (1977).

2. The determination of whether identification

evidence should be suppressed must be based on all

the circumstances and should focus on (1) the degree

to which the pretrial confrontation was suggestive;

(2) any exigencies justifying the suggestive proced-

ure; and (8) the reliability of the identification.

However, unnecessarily suggestive pretrial confron-

tation procedures, standing alone, do not violate due

process. Reliability is the linchpin in determining

the admissibility of identification testimony. Manson

v. Brathwaite, supra; United States v. Alden, 576 F.

2d 772, 778 (8th Cir. 1978).

3. The factors to be considered in determining

the reliability of identification evidence “include the

opportunity of the witness to view the criminal at

the time of the crime, the witness’ degree of attention,

the accuracy of his prior description of the criminal,

the level of certainty demonstrated at the confronta-

tion, and the time between the crime and the con-

frontation.” Neil v. Biggers, 409 U.S. 188, 199-200

A-12..

(1972). Kelly had plenty of opportunity to view de-

fendant Green. Kelly ate meals with him, conversed

with him, rode in an airplane for over 24 hours with

him. There is overwhelming evidence that he had

an opportunity to observe, had reason to be accurate

and have the impression of Mr. Green imprinted in-

delibly in his mind, especially considering the serious-

ness of the crime and the manner of the venture both

Kelly and Green were involved in.

4. The totality of circumstances considered,

there is no likelihood of an irreparable misidentifi-

cation. After Kelly made the all night trip to Little

Rock from California, he was tired and did not want

to make a positive identification. He said he thought

the man in the picture was the same one with whom

he had flown, but wanted to get some sleep before

making a positive identification. He did so the next

day. Even if showing the photograph was suggest-

ive, and the Court does not find that the process

was impermissible in the manner in which it was

presented, there was clear and convincing evidence

Kelly had adequate opportunity by independent ob-

servation to be able to identify the man who was with

him on the flight and on the venture.

Submitted this day of April, 1980.

/s/ Elsijane T. Roy,

United States District Judge

A-13'

APPENDIX “C”

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

UNITED STATES _.. _. Plaintiff

v. No. LR-CR-80-8

CONRAD REAM (1)

FRED STALDER (4)

ROBERT REAM (6)

MICHAEL K. BENNETT (7) ....... Defendants

ORDER

A hearing on pending motions was held in this

case on Monday, April 28, 1980. Both the Govern-

ment and the defendants were given the opportunity

of presenting witnesses. After consideration of the

testimony presented and the arguments of counsel,

IT IS HEREBY ORDERED:

1. THE MOTION TO DISMISS filed by defend-

ants on March 31, 1980 because of the alleged wrong-

ful destruction of a substantial part of the substance

(allegedly marijuana) seized by the officers, is de-

nied. The seizure and later destruction was under

A-14 .

the supervision of, and at the direction of, the state

and_ local officials. The federal officials were pres-

ent but did not participate in the decision to destroy

the material. There was no showing at any time that

the federal officials acted in bad faith nor with mal-

iee toward the defendants. Furthermore, the de-

fendants failed to carry the burden of showing that

any prejudice resulted to them from the destruction

of the seized material. The testimony of Mary Bueh-

ler, the chemist from the State Crime Laboratory,

was uncontroverted. She testified that she took 18 ran-

dom samples from the bundles and boxes as they

were untied and lifted by forklift to the incinerator.

There was no opportunity for tampering. She also

testified that these samples were, and have at all

times been, available to defendants for their analy-

sis. For the foregoing reasons, the Motion to Dis-

miss is denied.

2. The oral motion of Conrad Ream and Fred

Stalder to dismiss the indictment as to them because

of improper statements and/or questions by Don

Curdie, Assistant United States Attorney, at the

time of the hearing before the Grand Jury, is hereby

denied.

A-15

3. THE MOTION OF DEFENDANTS FOR

DISMISSAL ON THE GROUND OF DOUBLE JEO-

PARDY is denied because of the _ well-established

legal principle that state prosecution does not bar a

federal action against the same person for the same

acts because the prosecutions are under the laws of

separate sovereigns and do not subject the defend-

ant to double jeopardy, U.S. v. Wheeler, 435 U.S. 313.

4. A discussion regarding the motion to demand

notice of alibi witnesses was held; defendants stated

there were none.

5. THE UNITED STATES’ MOTION IN LI-

MINE AS TO KEAT GRIGGERS, JOE KELLY, AND

MALCOLM GAUSTAD are granted. The Court

finds under the applicable rules of the Federal Rules

of Evidence that the prior arrests referred to in the

rap sheets and oral testimony before the Court indi-

cated that the crimes of which they were accused

had either not resulted in convictions or they were

felonies which were more than 10 years old or they

were misdemeanors which did not involve dishonesty

or false statements.

6. THE UNITED STATES’ MOTION IN LI-

MINE AS TO ARDELL MEARS is granted, and no

A-16.

reference may be made to the fact that he remained

silent and did not testify before the grand jury.

7. The Court reserved ruling on the United

States’ Motion in Limine regarding Conrad Ream and

Robert Ream until the issues are presented in the

light. of trial. However, defendants’ attorneys are di-

rected not to mention in opening statements the mat-

ters referred to therein. ;

8. Discussion was had regarding the motion of

the United States that defendants not be permitted

to present witnesses who allegedly bought marijuana

from Sheriff Ron Davis. No relevancy was shown

at pretrial, and the Court as a preliminary determina-

tion holds such testimony would be inadmissible;

however, the Court will reserve barring such testi-

mony if defendants at trial can show that it would

be relevant to their defense.

Dated this 30th day of April, 1980.

Elsijane T. Roy,

United States District Judge