Supplemental Brief — Thornberry v. United States

Office-Supreme Court, U.S.

FILED

() 1981

NO. 80-1822 m3

ALEX.’

___ — ——— -.-_.|

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

HAROLD ANCLE THORNBERRY,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

W. ROBERT LOTZ, JR.

211 East Fourth Street

P.O. Box 1078

Covington, Kentucky 41012

1 (606) 261-5777

Attorney for Petitioner

I a ETI

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

SUPPLEMENTAL QUESTION PRESENTED

FOR REVIEW

ARE A DEFENDANT'S FIFTH AMENDMENT OR

SIXTH AMENDMENT RIGHTS VIOLATED UNDER

CIRCUMSTANCES WHERE FEDERAL AGENTS,

USING AN UNDERCOVER EMPLOYEE, SURREPTI-

TIOUSLY INITIATE AND RECORD A NUMBER

OF NON-CUSTODIAL INTERROGATIONS AFTER

THAT DEFENDANT, HAVING BEEN GIVEN

MIRANDA WARNINGS, HAS FORCED TERMINA-

TION OF ALL CUSTODIAL QUESTIONING BY

CLEARLY INDICATING A DESIRE NOT TO BE

INTERROGATED?

Page

SUPPLEMENTAL QUESTIONS PRESENTED

EE sie es oes se vce these ccss see aay

SUPPLEMENTAL TABLE OF CASES AND

en IV

SUPPLEMENTAL CONSTITUTIONAL

as kb eas sev been ee l

SUPPLEMENT TO STATEMENT OF THE

ee LOSS ROG SAA ae 2

REASON FOR GRANTING CERTIORARI ON

SUPPLEMENTAL QUESTION PRESENTED ... 3

a tab kek was thave cen kebses. 3

SUPPLEMENTAL APPENDIX __.......... Tore

IV.

SUPPLEMENTAL TABLE OF CASES AND

AUTHORITIES

Page

Brewer v. Williams, 430 U.S. 387 (1977) .......... 5, 6

Edwards v. Arizona, —— US. —-, 49 U.S.L.W.

4496 (No. 79-5269) (decided May 18, 1981) .... 3-8

Escobedo v. Illinois, 378 U.S. 478 (1964) .......... 7-9

Massiah v. United States, 377 U.S. 201 (1964) .. 3, 5, 8

Michigan v. Mosley, 423 U.S. 96 (1975) .. ....... 3-7

Michigan v. Tucker, 417 U.S. 433 (1974) ........ 8

Miranda v. Arizona, 384 U.S. 436 (1966) ...... 3-5, 7,9

Rhode Island v. Innis, 446 U.S. 291 (1980) ........ 5

Kamisar, “Brewer v. Williams, Massiah, and

Miranda: What Is Interrogation? When Does It

Matter?” 67 Geo. L.J. 1-101 (1978) ............. 6

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO. 80-1822

HAROLD ANCLE THORNBERRY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL PETITION FOR

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SUPPLEMENTAL CONSTITUTIONAL PROVISIONS

Amendment Five:

“No person . . . shall be compelled in any criminal

case to be a witness against himself, nor be deprived

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

law...”

Amendment Six:

“In all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistance of counsel for his

defense.”

2

SUPPLEMENTAL STATEMENT OF THE CASE

On March 24, 1978, the Federal Bureau of Investigation

outfitted James Thomas, a paid “consultant,” with a body

recorder and transmitter. Thomas, as part of an FBI

investigation, had ingratiated himself with the Defendant

Thornberry and had become Thornberry’s regular gin

rummy partner. As part of the investigation, Thomas was

instructed by the FBI to record his conversations with

Thornberry.

On March 30, 1978, the FBI, assisted by Covington

Police, in furtherance of the same investigation, executed

a search warrant on the building at 616 Washington Street,

Covington, Kentucky. Before the search, Agents Behan

and Conley went to Thornberry’s apartment and asked

him for a key to the Washington Street building. Thomas,

who was already present in Thornberry’s apartment, re-

corded this conversation. In the search, the FBI seized

business records and other material alleged to be evidence

of gambling.

After the search, the same two Agents brought the return

on the search warrant to Thornberry who was still with

Thomas. This conversation between the FBI Agents and

Thornberry was also recorded by Thomas. The Agents

told Thornberry they wanted to question him and advised

him of his Miranda rights by presenting him with a printed

form listing all of those rights. (App. 2-3) Thornberry

clearly indicated he did not want to talk with the agents.

(App. 3) The two Agents stopped their questioning,

served Thornberry with a Subpoena to appear before a

Federal Grand Jury, and left him with Thomas. Thomas

stayed behind with Thornberry and recorded conversations

on that day, and on the subsequent day, in which Thorn-

berry made incriminating statements. (App. 1-15) Over

3

objections grounded in the fifth and sixth amendments, the

content of these conversations was admitted against Thorn-

berry at trial.

REASONS FOR GRANTING CERTIORARI ON

SUPPLEMENTAL QUESTION PRESENTED

FOR REVIEW

THE DECISION OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT UPHOLDING AD.-

MISSION OF RECORDED CONVERSATIONS

AGAINST PETITIONER IS IN CONFLICT

‘WITH THE DECISIONS OF THIS COURT IN

EDWARDS v. ARIZONA, —— U.S. —, 49 U.S.L.W.

4496 (NO. 79-5296) (DECIDED MAY 18, 1981);

MICHIGAN v. MOSLEY, 423 U.S. 96 (1975);

MIRANDA v. ARIZONA, 384 U.S. 436 (1966);

ESCOBEDO v. ILLINOIS, 378 U.S. 478 (1964);

MASSIAH v. UNITED STATES, 377 U.S. 201 (1964).

A. Petitioner’s Fifth Amendment Rights, As Devel-

oped In Edwards v. Arizona, Michigan v. Mosley,

and Miranda v. Arizona, Were Violated.

Thornberry was informed of his fifth amendment rights

by FBI agents and he invoked those rights by refusing to

speak with the agents. (App. 3) Ostensibly, the FBI

honored Thornberry’s invocation of his rights when the

two persons who had identified themselves as FBI agents

left Thornberry’s apartment; however, a paid informer/

consultant, James Thomas, remained behind, wired for

sound, and engaged Thornberry in conversation in in-

criminating areas. (App. 3-15) No attempt was made

to ascertain whether Thornberry waived the Miranda rights

4

he had invoked just moments before. In fact, Thomas

remained behind with Thornberry in order to circumvent

Thornberry’s assertion of his Miranda rights.

Once Miranda warnings have been given to an accused

citizen, the interrogators must “scrupulously honor’ the

invocation of those rights. Michigan v. Mosley, 423 U.S.

96 (1975).

If .. . he [the accused citizen] indicates in any manner

and at any stage of the process that he wishes to con-

sult with an attorney before speaking, there can be

no questioning. Likewise, if the individual is alone

and indicates in any manner that he does not wish

to be interrogated, the police may not question him.

Miranda v. Arizona, 384 U.S. 436, 444-45 (1966) .

In Mosley, there was a delay of two hours between the

accused citizen’s assertion of his rights prior to an interro-

gation in reference to one crime and commencement of

another interrogation by another officer in reference to

another crime. The Mosley Court held that the prohibi-

tion of questioning after the assertion of the right to remain

silent did not extend for an indefinite period and that

questioning could resume sc long as the assertion of the

right is “scrupulously honored.” Mosley, 423 U.S. at 103-

04. In Mosley, each interrogator read Miranda warnings

prior to interrogation and there was a two hour gap be-

tween interrogations. In the case at hand, the interroga-

tion of Thornberry by Thomas began as soon as the other

FBI agents left the room and continued over into the next

day.

In the recent case of Edwards v. Arizona, this Court held

that the Miranda Court meant what it said — if an accused

indicates a desire to remain silent, then interrogation must

cease, and if an accused indicates a desire for counsel prior

5

to interrogation, then counsel must be provided before

interrogation may continue. Edwards v. Arizona, —— US.

——, 49 U.S.L.W. 4496, 4497-98 (No. 79-5269) (decided

May 18, 1981). The Edwards Court grounded its decision

on the fifth amendment, specifically refusing to deal with

a sixth amendment right to counsel issue posed by the Peti-

tioner in that case. Edwards, —— U.S. at ——, 49 U.S.L.W.

at 4497, n. 7. Fifth amendment rights include the right

to refuse to incriminate oneself and the right to have

counsel present at interrogation.

The Edwards Court also required that, once the fifth

amendment right to counsel was invoked, there must be

proof that the accused voluntarily, knowingly, and intelli-

gently waived that right. Edwards, -— U.S. at ——, 49

U.S.L.W. at 4497. Proof that the accused responded to

further custodial interrogation is insufficient proof of

waiver.

Once informed of his fifth amendment rights as an

accused, Thornberry refused to speak with the FBI agents.

After the agents left the premises in honor of Thornberry’s

assertion of his rights, the FBI’s paid informer interrogated

Thornberry by engaging him in conversation in incrimin-

ating areas. Regardless of its form, interrogation is the

deliberate elicitation of incriminating information and

statement from an accused. Brewer v. Williams, 430 U.S.

387, 400 (1977); Miranda v. Arizona, 384 U.S. 436, 461

(1966); Massiah v. United States, 377 U.S. 201, 206

(1964). “The term ‘interrogation’ under Miranda refers

not only to express questioning, but also to any words or

actions on the part ef the police (other than those normally

attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating re-

sponse from the suspect.” Rhode Island v. Innis, 446

U.S. 291, 301 (1980) (footnotes omitted). Whether

6

Thomas’ deliberate elicitation of incriminating statements

was as a result of a classic question and answer interroga-

tion or was a surreptitious elicitation is “constitutionally

irrelevant.” Brewer, 430 U.S. at 400-402. See, Kamisar,

“Brewer v. Williams, Massiah, and Miranda: What is In-

terrogation? When Does It Matter?” 67 Geo. L.J. 1-101

(1978). It \.as for the deliberate purpose of eliciting and

recording incriminating information that Thomas ingrati-

ated himself with Thornberry and remained with Thorn-

berry after the FBI agents left the room.

Thornberry invoked his rights under the fifth amend-

ment and that invocation was circumvented by surreptitious

interrogation by a paid FBI informant. In contravention

of Michigan v. Mosley, the FBI did not scrupulously honor

Thornberry’s invocation of his rights. The FBI paid the

informant for the purpose of defying the invocation of

those rights. Over eighteen hours of recorded conversa-

tion, and untold time spent by the informant in endearing

himself to Thornberry, culminated in the conversations

that were recorded after Thornberry invoked his fifth

amendment rights and that contained statements by Thorn-

berry incriminating himself. No proof was presented at

trial that Thornberry knowingly, intelligently, or volun-

tarily waived the rights he invoked; rather, the recorded

conversations show that there was no gap between Thorn-

berry’s refusal to speak to the FBI and his conversations

with Thomas.

Among the fifth amendment rights invoked by Thorn-

berry’s refusal to speak with the FBI is the right to have

counsel present at interrogation. In contravention of Ed-

wards v. Arizona, no counsel was present at Thornberry’s

continued interrogation and Thornberry did not waive the

right to have counsel present. Simple response to further

interrogation by Thornberry, even though voluntary, did

7

not constitute a knowing and intelligent waiver of the

rights he had previously invoked.

In this case, the FBI has been allowed, by the holdings

of the lower court, to circumvent the holdings of this

Court in Edwards vy. Arizona, Michigan v. Mosley, and

Miranda v. Arizona. By remaining with the accused after

he invoked his fifth amendment rights, the FBI was not

merely investigating a case, but was deliberately eliciting

incriminating information from the accused.

B. Petitioner’s Sixth Amendment Rights, Which

Were Developed In Massiah v. United States And

Escobedo v. Illinois, Were Violated.

By the time the FBI Agents presented Thornberry with

the printed Miranda warnings, they had focused on him

as an accused in their investigation of criminal activity.

The FBI had placed a paid informant in the presence of

Thornberry who was wired for sound to record conversa-

tions in which he elicited incriminating information from

Thornberry. The FBI had obtained the key to the build-

ing at 616 Washington Avenue from Thornberry and had

already searched the building. The FBI presented the

return on the Warrant to Thornberry, even though the

building was rented to other persons and they were occupy-

ing the building. After Thornberry refused to speak with

the Agents on the issues of this case, they presented him

with a Subpoena to appear before a Federal Grand Jury

investigating criminal activity in the area.

In Escobedo vy. Illinois, 378 U.S. 478 (1964), the Su-

preme Court held that when an investigation of criminal

activity had focused on one person, when the investigation

had shifted from general to accusatory against one person,

then refusal to honor that person’s request to tremain silent

or for an attorney was a violation of the sixth amendment

8

right to counsel and the fifth amendment right to remain

silent. Escobedo asked for his attorney after being ques-

tioned by police. Even though his attorney was in the

police station house, the police refused to comply with

that request.

As noted by Justice Rehnquist, notwithstanding the

Miranda decision, Escobedo’s holding is still good law, al-

though it should not be broadly construed. Michigan v.

Tucker, 417 U.S. 433, 438 (1974). The Escobedo Court

built on the earlier holding in Massiah v. United States

that, under the sixth amendment, an accused is entitled to

counsel when adversary criminal proceedings have begun.

Massiah, 377 U.S. 201 (1964). Escobedo held that when

the investigation of a crime had focused on one individual,

that person “had, for all practical purposes, already been

charged . . .”” Escobedo, 378 U.S. at 486.

In Massiah, the Court suppressed statements of an ac-

cused that were obtained by a friend of the accused who

was working for the Government and wore a hidden micro-

phone. The accused in Massiah had been indicted and had

obtained counsel at the time his friend elicited and recorded

the incriminating statements. The Escobedo decision ex-

tended the protection established by Massiah, against self-

incrimination and the right to counsel, to times prior to

the formal institution of charges.

In the recent case of Edwards v. Arizona, this Court held

that once fifth amendment rights had been asserted, they

could be validly waived only on proof that there was a

voluntary relinquishment of each right known to the

accused. Edwards v. Arizona, —— U.S. ——, 49 U.S.L.W.

4496 (No. 78-5269) (Decided May 18, 1981). The Court

held that there were special protections for the accused in

the determination of the waiver of an asserted right to

counsel. Edwards, —~ U.S. ——, 49 U.S.L.W. at 4497.

9

In the case at hand, Thornberry was informed of his

rights under the Miranda decision, which includes the

right to counsel, and refused to speak with the FBI. Since

the investigation had so obviously focused on Thornberry

as an accused, under the Escobedo decision, he also invoked

sixth amendment rights to counsel by refusing to speak

when informed of, amowg other rights, his right to counsel.

Without any proof that Thornberry waived his right to

counsel, he was interrogated by the paid informant in

violation of his right to counsel.

Respectfully submitted,

W. ROBERT LOTZ, JR.

211 East Fourth Street

P.O. Box 1078

Covington, Kentucky 41012

1 (606) 261-5777

Attorney for Petitioner

APPENDIX A

EXCERPTS FROM RECORDED CONVERSATIONS

Conversation Number: 5

Participants: Harold Thornberry

Special Agent Vincent W. Behan

Special Agent Patrick J. Conley

James Thomas

Date: March 30, 1978

Thomas: Yeah, I'll tell you. Well, I, I don’t understand

the Feds being in on this gambling, this state. I

thought under the law

Thornberry: You got to close down, you got to be closed.

You can’t operate for thirty straight days. You can’t

take in so much money in one given night. You

can’t have so many people working for you. This is

where they get you

Thomas: And he is, oh, he’s been doin that

Thornberry: I don’t know

Thomas: I don’t either

Thornberry: I don’t know. But I’m just sayin what you

can’t do

Thomas: Well I don’t know either. Don’t wanna know.

Okay. Well, I just

Thornberry: I really don’t know

Thomas: I, I can’t understand the

Thornberry: I have never, I’ve never went up there

(Someone else comes in — background talk to them)

Thornberry: Yeah, come on in

Behan: Got a few minutes

la

2a

Thornberry: Yeah, come on in

Behan: Alright

Conley: Was just here

Thornberry: Don’t knock the door down please

Behan: You got somebody to take care of that door up

there

Thornberry: A, I called and his wife said as soon as he

comes in she'd call. So I'll try to get in touch with

him. If not I'll get up here first thing tomorrow

morning. ‘cause I got a piece of plywood lying right

up there that I can take up there and block up the

door. Here, use this as a

Conley: You got someone up there

Thornberry: Up there?

Conley: Yeah

Thomas: Charlie

Thornberry: That’s the ice man

Thomas: That's Charlie

Thornberry: That's the ice (unintelligible)

Thomas: That’s Charlie

Behan: Okay, that’s the inventory

Thornberry: Okay

Behan: If you will put that on the back of the, uh, search

warrant

Thornberry: Okay

Behan: And give her the whole package

Thornberry: Alright, alright

Thomas: That’s Charlie

Behan: Okay, I would, uh, I do want to ask you a few

questions about it Harold

Thornberry: Okay, alright

Thomas: You want me to leave?

Thornberry: No, I don’t care. If these guys want you to

Behan: Before I do, I just want to advise you of your

rights

$a

Thornberry: Yeah, okay

Behan: Okay?

Thornberry: Alright

Behan: Read it over

Thornberry: Alright. Why don’t I just don’t say nothin

then I won't have to worry about nothing

Behan: Ha, ha, ha, it’s your choice

Thornberry: Maybe that would be the best way to be.

Behan: Okay, I, would you care to sign that. It’s just

telling you that we advised, that’s all it is

Thornberry: Okay, alright, okay

Behan: Okay, now do you want to talk about

Thornberry: No

Behan: The place at all. No, okay

Thornberry: What the hell did I do with that, that thing

you gave me. Oh, here it is, this is what I was looking

for, staple this all together. Yeah, I'll see her, no

doubt tomorrow or the next day because the rent’s due

Behan: Okay Harold, this is a subpoena to appear before

a Grand Jury in Lexington on the sixth

Thornberry: Uh huh

Behan: Where they will ask the questions

Thornberry: Okay, alright

Behan: Okay

Thornberry: Alright, okey doke, see what the hell day is

the sixth

Conley: Thursday, I think

Thornberry: Monday

Conley: Monday

Thornberry: Yeah, in fact it’s Monday a week I guess it

is, yeah. No hell, I’m lookin at March ain't I. We

wanna look at April. A, the sixth is Thursday. Right

Behan: Right

Thornberry: Uh huh, yeah

4a

Behan: Okay

Thornberry: Okay

Behan: Alright

Thornberry: Okay, alright

Conley: Good night Harold

Thornberry: Uh huh, I'll get that taken care of tonight

or tomorrow morning

Behan: Alright

Thornberry: Okay, I own the property they asked me who

rents it and this kind of stuff that what they (unin-

telligible) .

Thomas: Three, six, eleven

Thornberry: Oh hell (unintelligible)

Thomas: Motherfuck that shit, buddy I should have

stayed in Metamora

Conversation Number: 6

Participants: Harold Thornberry

Harry Seiter

James Thomas

Date: March 30, 1978

Thomas: Who is this guy?

Thornberry: Jim, I don’t know

Thomas: Oh

Thornberry: Fuck, I don’t know who these guys are. I

don’t know nothing about them, they're FBI Agents,

that’s all I know about ’em. I don’t know who they

are and I don’t give a fuck who they are

(Knock on door)

Seiter: Hello

Thomas: Hello Harry, by God, how are you?

5a

Seiter: Hey I’m comin up that Goddamn place

Thomas: I'll buy, I'll buy you chicken

Seiter: I’m tearin that fuckin place apart

Thomas: Don’t do anything like that

Seiter: I’m gettin all drunk and I’m raisin hell

Thomas: Damn

Seiter: What did I tell you?

Thornberry: What's that

Seiter: You just had visitors didn’t you

Thornberry: Well sure. Yeah, yeah, they raided How-

ard’s place

Seiter: I know they did. What did they find?

Thornberry: I don’t know

Seiter: Did they get your game?

Thornberry: No, here’s what they found. I’m _ sub-

poenaed for the seventh of next month

Seiter: The seventh

Thornberry: Yeah, it’s on Thursday. Here’s what they

found

Seiter: The seventh ain’t on no Thursday. The seventh

is on a Friday

Thornberry: Or it’s the sixth. The sixth is on a Thurs-

day

Seiter: Bowman got a subpoena to go the seventh

Thornberry: That’s what they found up there

Seiter: Playing cards

Thomas: It’s your throwaway, Thornberry. A diamond

run, a diamond run

Thornberry: They kicked the back door in and asked me

if I can get it fixed. I told them I didn’t kick it in

Seiter: That's what I would have told them. Said you

get it fixed

Thomas: Go ahead, I can’t stop you. I can’t stop you,

Gin

6a

Thornberry: Twenty-nine

Seiter: They didn’t get much did they

Thornberry: Address book they said. Telephone ad-

dress book

Seiter: Is this your subpoena?

Thornberry: Uh

Seiter: Oh that’s the search warrant

Thornberry: Yeah they wanted to talk to me and I said, I

said I don’t wanna talk

Thomas: He just flat told them no

Seiter: I don’t blame him

Thornberry: I said I just don’t want to talk to you

Thomas: Oh, by the way, congratulations. On the

Colonel

Seiter: They're trying to take it from, all the time

Thomas: Oh bullhockey, they can’t do that. That's as

legal as the day is long

Thornberry: They said something about Howard renting

off me. I said Howard don’t rent off me

Seiter: I wouldn’t have even told them that. You have

to contact my attorney first before you speak to me,

men

Thomas: How is Abe? Have you seen him?

Seiter: He’s alright. He don’t do too good

Thornberry: Nine —

Thomas: Oh, son of a

Seiter; You know, I seen them two fuckers getting in

their car, they never said one word to me

Thornberry: They came down here, I was next door

and they asked me for a key. They said, uh, we want

to go up and look in Donnelly’s place

Thomas: Thirty-one, forty, fifty

Thornberry: I said, uh, Donnelly’s place? They said

yeah. I said nobody by the name of Donnelly rents

7a

off me. They said 616 Washington, I said you mean

Mary Ann Noel. I said I don’t have a key for it. So

then we went up to Pat (unintelligible) go up and

eat at the, the German joint and there they were.

Then they called me over and said you sure you don't

have the key for it and I said no, they said well how

you want us to go in, through the window or through

the door. I said it makes no difference to me how you

go through. Ha, ha, ha

Seiter: That’s what I'd of told them

Thornberry: I don’t give a fuck

Thomas: Fifty points there. You didn't even give me a

damn chance that time

Seiter: Jim, you're trying to look like one of them fuckin

hillbillies up there in Indiana, ain't you?

Thomas: | Oh, I got married, you know that Harry?

Seiter: No

Thomas: And a, a my wife, I don't know what's got into

her, she just swears up and down I should wear a

beard. So I’m doin it for her because she's got the

money

Seiter: Don’t hurt the image none does it?

Thomas: No, it helps the image. But I, she, she's the one

that carries the money and since she carries the money

I

Thornberry: You listen to her

Thomas: [I listen

Seiter: You're hidin a little for old Jim though ain't cha

Thomas: Huh?

Seiter: You're hiding a little for old Jim ain't you

Thomas: About the only chance I get every dime I get

he takes it from me. He don't never give me a chance

Seiter: Well lose her money in the Goddamn game. Say

Honey I lost your money

8a

‘Lhornberry: Yeah that right, that’s right, tell him you're

playin for her

Thomas: I did but I lost

Seiter; Boy Jim I saw them pricks out there, they didn’t

* say nothin about that up there, I just played dumb

and went on

Thornberry: Yeah they had about twelve or fifteen of

them up there

Seiter; Was there that many?

Thornberry: Yeah

Seiter; Well they was really gonna do a big thing wasn't

they

Thornberry: Yeah

Seiter:; Well that tells you they didn't have an inside man

Thornberry: Huh?

Seiter: ‘That tells me they didn’t have an inside man, if

they had that many people to take it off and nobody

in there

Thornberry: ‘That place was bare. They weren't gonna

find anything. Really unloading aren't you?

Thomas: Oh don't you you think it’s about time

Thornberry: Yes, it might be too late

Thomas: Could be. Deal the card

Thornberry: Can't help it

Thomas: I can’t, uh

Thornberry: Hey (unintelligible) big Al Meyers is up

there and a they said, a well which door should we

knock down, which is the easiest door. Well I know

that side door, that door is solid. That fuckin thing.

I believe this will be the easiest. Just, uh, you know,

put your shoulder up and hit that motherfucker

Thomas: He bounced back about four foot

Thornberry: ‘That motherfucker. He bounced back, he

said woooo. I said try it again. He hit that son of

a bitch again and it didn’t budge

9a

Seiter; So he's in on this fuckin act with them cocksuckers

Thornberry; Oh, I know he is, and he says oooh, so then

he goes back in the back door was an old door, the

glass, the glass was out so he just kicked it and he

broke it right in half. You know. I had to laugh

how Al bounched off that door twice

Thomas; That tickled him

Seiter; (Unintelligible)

Thomas: Did it upset him?

Seiter: (Unintelligible) in that department (unintelligi-

ble) and everything

Thornberry: Oh yeah, Gin (unintelligible)

Thomas: Son of a bitch, son of a bitch. Oh, I'm afraid

to throw you a six

Thornberry: Six

Thomas; Fourteen

Thornberry: Twenty-five, thirty, thirty-nine

Thomas: Thirty-nine

Thornberry: One twenty-four

Thomas: A, a new leader in the pack

Seiter: I'm gonna get out of here I'm gonna let you guys

play your fuckin cards

Thornberry: Okay Hacry

Thomas: Harry, good to see you again

Seiter: Sometime

Thomas: Hey listen, hey listen

Thornberry: Pat says stop up and get those beer cans for

you

Seiter:; Huh?

Thornberry: Pat says to stop up and get those beer cans

for you

Thomas: Hey, come on up and bring the family and I'll

buy you

Seiter: You got a card with you?

10a

Thomas: No, I don’t have no card, I can’t, you know up

there

Seiter: Harold knows how to get there and everything

don't he

Thornberry: Oh yeah

Thomas: Yeah, it's a nice place. I bought me a home

and I

Seiter; You there all day?

Thomas: Everyday. Everyday. I just get away a couple

of days a week to come down here

Seiter; About two weeks, you always there on a Sunday?

Thomas: Always there on a Sunday

Seiter: In about two wecks I'll come by

Thomas: Come on up and I'll give you the grand tour

Seiter: You can show me the town

Thomas: I'll show you the town. Thank you Harry

Thornberry: Good seein you again

Thomas: Alright, it’s good seeing you

Thornberry: So long Harry. Okay baby

Thomas: I wonder how come he didn't know anything

about it until just right out there. Huh?

Thornberry: Shit. He played the dummy with Schwartz

Thomas: Well that’s good, he should, he should

Conversation Number: 7

Participants: Harold Thornberry

John Wardia

James Thomas

Date: March 30, 1978

Wardia: Hi Jim

Thomas: Hi John, how are you?

Wardia: Did you bring all your friends with you God-

dammit

lla

Thomas: I ain’t got no friends

Wardia: I seen all them guys come in (unintelligible)

Thornberry: That was the FBI, they raided Howard.

Yeah they came down and wanted me to open up the

door for them and I said I don’t have a key (unin-

telligible)

Conversation Number: 8

Participants: Harold Thornberry

James Thomas

Date: March 31, 1978

Thornberry: I know, but let me explain something

Thomas: Okay, all right

Thornberry: There’s only two (unintelligible) just two

individuals. I’m not worried about these individuals.

In fact it was at different times so if they would cop

it would be my word against theirs. Don’t make any

difference, there’s no proof

Thomas: It takes one to indict, one to indict and two

to convict, now Harris told me that, I remember that

Thornberry: All right now, we know that, I’m not wor-

ried about that. Now, as far as the guys (unintelligi-

ble) bagman, that don’t mean nothin either, cause

they could come back in here or come down there

and find something just laying on the desk. That

don’t make any difference. There’s nothing to that,

see? Now as far as the joint up there, they can’t

convict me on running a gambling joint cause I had

it leased out to Mary Ann Noel

Thomas: Yeah, I know that. You told me that last week

Thornberry: And she gave me the rent and paid me by

check. She has her cancelled checks to prove it. All

12a

right. I have my rent receipts to prove it. I’m not

worried about it, it’s horseshit. They might try to

prove that the commissioners are getting money for

certain things but they have to prove it, see I’m not

worried, but it might be embarrassing if one or two

would cop out

Thomas: Well Bowman's the only thing I’m worried

about, that

Thornberry: He wouldn't say shit

Thomas: Well he said right there in the damn paper

Thornberry: He didn’t say what he was goin to say

Thomas: (Unintelligible)

Thornberry: Why would he hurt himself?

Thomas: See, if you hadn't, if you hadn’t said the other

Goddamn night about Bowman being, about what

happened when Bowman down here (unintelligible)

I wouldn’t thought nothin, but when I seen that, I got

Thornberry: You don’t know what you're thinking, you're

just like a ruckin square reading a newspaper

Thomas: Well

Thornberry: Why would he, why would he cop out and

convict himself?

Thomas: Yeah, I guess you're right, well, what if they

give him immunity

Thornberry: Well so what, it’s his word against mine.

See. Bullshit man

Thomas: You know, I just (unintelligible)

Thornberry: I don’t worry (unintelligible)

Thomas: I know that, I know that, I, I, know that

Thornberry: Just like that cop back there that wanted

me to give him a pay off, Meyers, all I said was, no

soap no soap. In the first place, no money changed

hands and they can’t get you for that

Thomas: Yeah

l3a

Thornberry: Just like the time they found my tape re-

corder where I had it on somebody supposed to get

so much money

Thomas: I remember that

Thornberry: And they gave it to the FBI and the FBI

said we can’t do nothin, nothin happened. That was

talk only

Thomas: (Unintelligible)

Thornberry: Yeah, they told (unintelligible) me it has

to happen and they have to have more than one

people there, person there. They've fucked, so fuckin

many humans its pitiful and they said they were going

to get me because I used federal funds to buy houses

with, why I never used federal funds in my life. They

just startin this shit, see, trying to get people scared,

that don’t scare me

Thomas: No, they don’t scare, that’s not what I’m wor-

ried about, it’s whether they scare somebody that

Thornberry: (Unintelligible)

Female: What are you doin Harold?

Thornberry: Nothin, that’s it, nothin