Petition — ERIC TOUCHARD v. UNITED STATES (Nos. 81-6199, 81-1510, 81-6198)

Bt-Gi99 en)

RECEIVED

IN THE FEB 9 1982

DD FICE OF THE CLERK

SUPREME COURT OF THE UNITED S ‘hes PREME court, US.

OCTOBER TERM, 1981

ERIC TOUCHARD,

Petitioner

UNITED STATES OF AMERICA,

Respondent.

-——-—— oe -_ -——— =.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LIONEL R. BARRETT, JR., P. C.

211 Printers’ Alley Building

Nashville, Tennessee 37201

(615) 254-1471

soi gy pp, ine

Attorneys for Petitioner

TABLE OF AUTHORITIES

Case

Andresen v. Maryland,

5. 463, 96 §$.Cr. 2737 (1976).

Brady v. Maryland,

373 is. 220, 83 S.Ct. 1194 (1963).

Bruton v. United States,

91 U.S. 123, T3T, fn. 6, 88 $.Ct.

Coolidge v. New Hampshire,

203 U.S. 443, OT S -€t. 2022 (1971).

Cooper v. California,

U.S. 58, 87 S.Ce. 788 (1967). .

Cooper v. United States

Je6 U.S

-S5. BY S.Ct. 788 (1967). .

iglo v. United States,

U.S. 150, 92 S.Ct. 763 (1972) .

Maeglia v. Buckhoe,

315 F.2d 365 (6th Cir. 1975). 2. -

Mooney v. Hollihan,

704 U.S. 103, 55 S$.Cr. 340 (1953) .

Napue v. Illinois,

U.S. 264, “79 S.Ct. 1173 (1959).

Preston v. United States,

367 U.S. 364, 84 S.Ct. 881 (1964) .

Stanley v. Georgia,

1620,

794 U.S. 557, 569, 89 S.Ct. 1243, 1250. .

S. v. Agurs,

TUS. 97, 96 S.Ct. 2392 (1976) .

U.S. v. Weidman,

572 F.2d 1199 (7th Cir. 1978)...

United States v. Banks,

383 F.Supp. 389 (W.D. South Dakota,

United States v. Bowen,

500 F.2d al (6th Cir. 1974) ° e ° .

United States v. Leon,

° t re. 1976). .« « «

United States v. McCoven,

e st re. 1974) . « -

United States v. Momus

° . Cir. 1978) .

atte

1625

12

17

(Table of Authorities)

(Cases) (Page)

United States v. Perez,

United States v. Tasto,

vad 70 (5th Cir. 1978). ° ef 8© @ 17

Warden v. Hayden,

387 evre . S.Ct. 1642 (1967). . . ° . ° . . . 21, 22

abte

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

—<——— ——— ee ee -

ERIC TOUCHARD,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

—_ —_———

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

SYTATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Petitioner, Eric Touchard, requests that a writ of certiorari

issue to review the judgment of the United States Court of Appeals

for the Sixth Circuit in United States of America v. Fric Touchard,

C.A. No. 5245, entered on October 22, 198!.

OPINION BELOW

O October 22, 1981, the court of appeals filed and entered

its opinion affirming the conviction of the Petitioner. A copy

of the opinion ‘not yet published) is attached as Appendix A. A

petition for rehearing was denied on December 11, 1981 (A copy

attached as Appendix B).

JURISDICTION

On October 22, 1981, the court of appeals entered judgment

affirming the conviction of the Petitioner for conspiracy to

distribute heroin and cocaine between early 1973 and July 1977,

contrary to 21 U.S.C. $43,846. The petition for rehearing was

denied on December 11, 1981. Jurisdiction to review the judgment

of the court of appeals is conferred upon this Court by Title 28,

United States Code, Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

I. Was the prosecutor's purposeful failure to provide

certain exculpatory material under Brady v. Maryla 4 such preju-

dicial prosecutorial misconduct as to have resjuired the trial

court to grant a mistrial?

Was it a related error to require that all defendants

unanimously join in the motion for mistrial prior to it being

granted?

Il. Were other instances of prosecutorial misconduct such

as stating:

"ff the Government were to introduce

every record that were available in this

case, we would need another jury room to

get them all in. . ."

so prejudicial as to have required that the petitioner have been

granted a new trial?

III. Was it error for the trial judge to have allowed into

evidence, over the Peritioner's objection, Exhibit 59, said

exhibit being improperly seized in violation of the Fourth

Amendment of the United States Constitution as will be further

set forth.

CONSTITUTIONAL PROVISIONS INVOLVED

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrants shall

issue, but upon probable cause, supported

by oath or affirmation, and particularly

describing the place to be searched, and

the persons or things to be seized.

Article IV, United States

Constitution

elle

STATEMENT OF THE CASE

The facts necessary to place in a setting the auestions now

raised can be briefly stated:

A. Course of proceedings in the district court and court of

appeals.

The petitioner, Eric M. Touchard, was indicted on August 10,

1978, for violating 24 U.S.C. §841(A)(1) and 21 U.S.C. $846. The

general nature of the indictment was that he was a member of a

conspiracy that did knowingly and intentionally possess with

intent to distribute and did indeed distribute large quantities

of heroin and cocaine, primarily between California and the state

of Tennessee. The petitioner subsequently filed a change of

venue motion, but such motion was denied. Through his court-

appointed counsel, numerous pretrial: motions were filed and heard

in this matter, with only the motion to suppress Exhibit 59 being

pertinent to this petition.

The trial cf this matter began on March 12, 1979, and lasted

until May 7, 1979, at which time sentence was imposed upon the

petitioner.

On April 24, 1979, the jury found the petitioner guilty on

counts 1 and 3 of the indictment, but the trial court subsequently

granted a motion for judgment of acquittal as to count 3 of the

indictment, but the conviction as to count 1 was sustained. Aft

the May 7 hearings, the petitioner was sentenced to a term of

fifteen (15) years, with a special parole term of three (3) years.

As has been stated earlier, the Sixth Circuit Court of

Appeals on October 22, 1981, denied the relief requested by the

petitioner and his co-defendants. A petition for rehearing was

timely filed in this matter, but was also denied by the Sixth

Circuit Court of Appeals on December 11, 1981. It is from the

decision of the Sixth Circuit Court of Appeals that this petition

o§e

for certiorari has been prepared.

B. Relevant facts concerning the issues presented in this

petition for certiorari.

Because of the voluminous record created in this matter, the

petitioner will only briefly summarize the evidence presented in

the case as it pertains to this petition for certiorari. A more

detailed examination will be presented when it is pertinent to a

particular issue.

It should be pointed out at this time that the nature of the

prosecution theorv was that the petitioner, along with three

other co-defendants, all of whom resided in California, were

instrumental in transporting or causing to be transported to the

Middle District of Tennessee large amounts of controlled sub-

stances, particularly herein. The government's case was predicated

primarily upon testimony of drue dealers from the Middle District

of Tennessee area who were testifying for the government in return

for varying considerations of leniency. The petitioner allegedly

was involved in this conspiracy between 1973 and 1977. The

Zovernment argued that there was an ongoing narcotics distribution

network centered in Englewood, California, with a primary purpose

of arranging heroin transactions with Nashville drug dealers.

The petitioner was allegedly involved in this conspiracy and

performed various tasks to facilitate the distribution of heroin,

including meeting the Nashville dealers at various sites in Los

Angeles, and on occasion delivering heroin in person to Nashville,

Tennessee. One of t'e government's primary witnesses was a

convicted drug dealer by the name of Ronald McKinley. McKinley

testified that he on occasion had been in Los Angeles and was

involved in the conspiracy.

A search of the petitioner, Eric Touchard's, residence in

Culver City, California, lead to the seizure of Exhibit No. 59

which is at issue in this petition for certiorari.

willis

EXISTENCE OF JURISDICTION BELOW

As has been stated earlier, the petitioner was convicted in

the United States District Court for the Middle District of

Tennessee on the conspiracy count of the indictment.

The petitioner argues that the Sixth Circuit Court of Appeals

has decided certain federal questions in a manner in conflict

with applicable decisions of this Court and other well-reasoned

decisions of other federal courts.

This will be discussed further in more detail.

REASONS FOR GRANTING THE WRIT

The petitioner submits that for the reasons that are to be

set forth in the following portion of this petition that the

petition should be granted. Petitioner further would state that

he feels that the Sixth Circuit has rendered a decision that on

these questions is in conflict with decisions of other federal

courts of appeals, and particularly as it pertains to the conduct

of the prosecutor has so far departed from the accepted and usual

course of judicial proceedings as to call for an exercise of this

Court's power of supervision. There is also a possibility that

the exact degree of prosecutorial misconduct has not fully been

decided by this Court and that this case presents an appropriate

forum to determine and settle this important issue of law, to-

wit: The degree of misconduct that will be allowed a prosecutor

without calling for reversal of a resulting conviction.

ARGUMENT IN SUPPORT OF REASONS RELIED UPON

_FOR THE ALLOWANCE OF THE WRIT

I. THE PROSECUTOR'S PURPOSEFUL FAILURE TO PROVIDE, AS

REQUIRED UNDER BRADY V. MARYLAND, THE PRIOR JUDICIAL TESTIMONY OF

RONNIE McKINLEY WAS PREJUDICIAL MISCONDUCT AND AS A RESULT THEREOF

THE FAILURE OF THE COURT TO GRANT A MISTRIAL MOTION WAS ERROR.

ALLOWING THE PETITIONER TO CROSS-EXAMINE McKINLEY THIRTEEN DAYS

AFTER HIS INITIAL TESTIMONY WAS INEFFECTUAL TO CURE THE ERROR.

«Se

IT WAS FURTHER ERROR TO REQUIRE THAT ALL DEFENDANTS

UNANIMOUSLY JOIN IN A MOTION FOR A MISTRIAL PRIOR TO IT BEING

GRANTED.

DETAILED FACTS

On March 27, 1979, the government called Ronnie McKinley to

testify on its behalf. Mr. McKinley testified extensively to his

dealings with the petitioner and other individuals involved in

the alleged conspiracy. At one point during Mr. McKinley's

testimony, there was a day long hearing to determine if Mr.

McKinley had been under the influence of drugs when he gave his

grand jury testimony. After three days of testimony, Mr. McKinley

direct and cross-examined testimony was completed,

Thirteen (13) days later, the attorney for the co-defendant

McLaughlin, informed the Court that he would like to cross-examine

Mr. McKinley because the defense counsel had recently learned of

the existence of Brady evidence which the government prosecutor

had failed to turn over to the defense. (App. Vol. 1, p. 80-87).

Mr. McKinley testified out of the jury's presence that in August

of 1977, he was tried on a federal charge of conspiracy to

distribute heroin. During that trial he testified that, contrary

to his testimony in the present case, he had never sold drugs in

his life and he had never been to California where the petitioner

Eric Touchard resided. Present at this prior testimony was Agent

William Tucker of the D.E.A., the same agent who coordinat ! the

prosecution against the petitioner in the present case and who

was seated at counsel table. (Id., p. 88).

Agent Tucker testified that he was the case agent in charge

of the investigation of Mr. McKinley, and that he was aware of

Mr. McKinley's prior testimony that he had never been to California,

and that he had informed the government prosecutor of the prior

inconsistent testimony. (Id., p. 96).

Assistant U.S. Attorney Mr. Boh Lynch testified that he was

aware of Mr. McKinley's Prior inconsistent judicial testimony

when he called Mr, McKinley to testify. (Id., p. 97). He was

also aware of all defendants pretrial discovery motions requesting

the revelation of all Brady material. (Id. p. 97). He te cified

that he did not turn over a transcript of Mr. McKinley's prior

judicial testimony. Mr. Lynch argued that he was not required to

turn over this material because Mr. McKinley's prior testimony

Was in the public domain and was not under the exclusive control

and possession of the Zovernment prosecutor. (Id., pp. 97-98,

101-120-121),

All five defense counsel testified that at some point prior

to trial they had interviewed Mr. McKinley. (App. Vol. 1, pp.

102-117). Each one testified that while McKinley was in custody

when interviewed, they were not aware of what charge he was being

held on or if he had taken the stand in his own defense, When

asked why they didn’t inquire further into Mr. McKinley's prior

trial and testimony, defense counsel for co-defendant Metoyer

more accurately detailed the reason for the failure to do so:

Because, Your Honor, until the very last

time that i: conferred with Mr. McKinley,

which was the day before this trial Started,

Mr. McKinley told me that he wasn't poing

to testify, and he wasn't poing to testify

for the prosecution, and he wasn't going to

Say anything for the defendants.

And in reality, Your Honor, I never got in-

volved in any significant amount of conver-

sation with him about what his testimony

was going to be, because he told me right

up to the last, “I am not going to testify

in this case."

He told me that the night -- the case started

on Monday, and I saw him on Sunday night, and

he told me he was not going to testify.

(Appendix, Vol. 1, p. 122,

L.L. 7-23)

Denying, inter alia, Eric Touchard's motion for a dimissal,

(App. Vol. 1, p. 123), the trial court found that while the

De

failure of the government prosecutor to turn over the prior

judicial testimony of Mr. McKinley was error, (Id., p. 124-125),

it would not grant a mistrial unless all of the defencants joined

in the motion. (Id., p. 126).

The next dav, all defendants except for the defendant Orlando

Sloan, made a Motion for a Mistrial. In response, the trial

court said:

This Court gave this matter a lot of thought

‘ last night, and I probably should not have

offered the defendants an opportunity for a

mistrial in this case,

We have a peculiar case here. We have a case

that is built on deals made with the government

as its principal witnesses, and the principal

witnesses have been carefully and extensively

cross-examined about their interese in the

lawsuit and the deals they have made, and their

credibility has been substantially taxed.

The fact that one of the principal witnesses

committed perjury in a trial in which he was

being tried for an offense similar to the offense

alleged in this case is just another item on

the -- that reflects on his credibility, and

I think that it can be cured,

As far as this record is concerned, I am per-

mitcing this witness to be called by the defendants

for further cross-examination.

If this were a different type of case, where

the government's case depends solely on this

witness’ credibility, the Court might give

some further thought to the matter, but taking

the circumstances as a whole, this Court be-

lieves that this matter can be cured by ten-

dering the witness for cross-examination, and

the Court so holds.

(App. Vol. 1, p. 138, L. 17

through p. 139, L. 15)

Mr. McKinley was subsequently recalled and on examination

dmitted that in his prior judicial testimony, he was lying, but

hat his testimony in this trial was truthful. (Id., pp. 140-

46).

ARGUMENT

The prosecutor's constitutional duty to disclose evidence in

ts possession that is exclupatory and therefore favorable to a

defendant was firmly established in Brady v. Maryland, 373 U.S.

220, 83 S.Ce. 1194 (1963). The Court went on to say,

+ « « the suppression by the prosecutor

of evidence favorable to the accused upon

request violates due process where the

evidence is material either to guilty of

punishment, irrespective of the good faith

or bad faith of the prosecutor".

373 U.S. 220, 83 S.Cr. 1194

Susbeauent decisions of the Supreme Court have helped to define

this prosecutorial obligation. In U.S. v. Agurs, 427 U.S. 97, 96

5.Ct.2392 (1976), the Court articulated three criteria for

determining the materiality of undisclosed information whether it

constitute a reversible error:

1. If the prosecutor has employed testi-

mony which he knew, or should have know,

was perjurious, the conviction must be

reversed "if there is any reasonable like-

lihood that the false testimony could have

affected the judgment of the jury." 427

U.S. 103, 96 S.Ct. 2397.

2. Whether the defense has made a general

request for discovery or favorable evidence,

or has made no request at all, there is no

Significant difference between the two and

disclosure is required only where the evidence

is “obviously exculpatory.” 427 U.S. 107,

96 S.Ct. 2399. In these situations, the

Court found the reversal is required only

where “the omitted evidence creates a

reasonable doubt that otherwise did not

exist.” 427 U.S. 112, 96 S.Cr. 2401.

3. If there has been a specific request for

discovery in the prosecutor's failure to

disclose, reversal will only be required if

the “suppressed evidence” might have affected

the outcome of the trial. 427 U.S. 104, 96

S.Ct. 2397. The Court further noted that

the “failure (of the prosecutor) to make any

response is seldom, if ever, excusable."

427 U.S. 106, 96 S.Ct. 2398.

The decision in Giglo v. United States, 405 U.S. 150, 92

-Ct. 763 (1972), rested upon, in addition to Brady,the earlier

ecisions of Mooney v. Hollihan, 294 U.S. 103, 55 S.Ct. 340

11935), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173 (1959),

hac it violated a defendant's constitutionally protected rights

-9-

of due process for the prosecution to use perjured testimony.

The protection given by the due process clause is equally applicable

where the Brady material could have been used to test the credi-

bility of the testimony of a witness where the testimony is

Crucial in determining the guilt of innocence of the defendant.

The non-disclosure of Brady material affecting the witness’

credibility will require reversal if the false testimony could

have affected the judgment of the jury. 405 U.S. 153, 92 S.Cr.

766. In this case, the testimony of Ronnie McKinley was clearly

critical to the issue of guilt,

Cir. 1978) and Maglia v. Buckhoe, 515 F.2d 365 (6th Cir. 1475),

wherein it was held that the defendant's rights to due process

are not violated se ere the defendant in a criminal triai has full

knowledee of the existence of evidence prior to the trial and

makes no effort to obtain the production, defense counsel for all

defendants in the present matter testified that they interviewed

Mr. McKinley prior to trial, and he informed them that he would

not testify at trial. Based upon this information, the defense

counsels made no effort to attempt to locate evidence which might

have affected the credibility of Mr. McKinley. The Districe

Court fully accepted the defense counsel's explanation for their

not attempting to locate Mc. McKinley's prior judicial testimony,

The District Court found that the prior judicial testimmony

of Mr. McKinley was obviously exculpatory and favorable to the

defendants because it raised questions as to whether Mr. McKinley,

who was the beginning of this alleged conspiracy, had ever been

to California and could have ever met the defendant.

Having found that the prior judicial testimony was material

nd exculpatory, the District Court was faced with the decision

f how to cure this extreme prosecutorial misconduct. Initially

he Court decided that it would grant a mistrial only if all the

-10-

defendants joined in the motion. When it was evidence that Sloan

would not join in the mistrial motion, the Court changed its mind

and statd that the defendants would not be entitled to a mistrial

but would instead be allowed to cross-examine Mr. McKinley in

front of the jury. The petitioner would submit that the District

—

Court's remedy was insufficient to cure the purposeful prosecutor

misconduct.

The petitioner would submit that the trial court erred when

he initially held that the granting of a mistrial would be con-

ditioned on all defendants joining the motion. As noted in Bruton

v. United States, 391 U.S. 123, 131, fn. 6, 88 S.Cr. 1620, 1625

(1968) that the joinder of numerous defendants in a single trial

is to promote economy, efficiency and to avoid a multiplicity of

trials but only where these objectives can be achieved without

substantial prejudice to the right of each defendant to a fair

trial. One must not forget that the joint trial is in reality a

separate trial as to each defendant and must be treated as such.

To condition a defendant's right to a mistrial upon the tactical

considerations of his co-defendants is to overlook the indivi-

duality of each defendant's due process right to a fair and

untainted trial.

The trial court in the present case stated that it should

jnot have offered a mistrial as an option. The Court, however,

does not possess the discretionary authority to allow the defentanth

a motion for a mistrial; it possesses only the authority to grant

it or not. The petitioner in the present case made such a mistrial

otion and the action of the trial court can only be construed as

denial of that motion. The failure to grant the mistrial motion

as error.

Since 1824, trial courts have had discretion to declare a

istrial and to discharge the jury whenever there is a manifest

necessity to do so or where the ends of justice would be defeated

-l1-

if a tainted trial was nor terminated prior to a jury verdict.

See, United States v. Perez, 22 U.S. 579 (1824). This supervisory

authority of the District Court encompasses the right to create a

remedy to prosecutorial misconduct or bad faith. In United States

v. Banks, 383 F.Supp. 389 (W.D. South Dakota, 1974), the court

was faced with the situation, among other thines, where the

prosecutor had knowingly and purposefully failed to turn over to

the defense a prior contradictory statement given to the F.B.I.

by a government witness. The court said that,

» « « the prosecutors offering of testi-

mony that was directly contradicted by a

document in his possession was inexcusable.

- « « If it was not a deliberate deception,

it was, at least, grossly negligent conduct."

383 F.Supp. 395.

It was held that the pattern of prosecutorial misconduct warranted

a dismissal of the indictment.

While the trial court did allow the defendants to cross-

examine McKinley about this testimony later before the jury, this

is insufficient to cure the error. The cross-examination was

almost two (2) weeks later, and numerous witnesses later, was

ineffective to truly test Mr. McKinley's credibility. The gap or

delay in his cross-examination failed to produce the same effect

upon the jury as that same cross-examination would have had

immediately upon the witness being subject to cross-examination.

Thus, unlike the decision in United States v. McGoven, 499 F.2d

1140 (Ist Cir. 1974), where the court held that failure to disclosé

that a witness had been promised rewards in exchange for her

testimony, would not require a mistrial because the witness was

on the stand and the court allowed defense counsel to cross-

examine her immediately, the defendants in the present case were

not afforded the right of inmediate cross-examination when it

would have been most effective.

-12-

Evidence which would have questioned the credibility of

whether Mr, McKinley was ever in California, a witness who was

the beginning and one of the key government witnesses, can

obviously raise doubts as to the guile of innocence of the

petitioner Eric Touchard. The failure to timely disclose the

material impeachment evidence was prosecutorial misconduct so

clearly negligent that it tainted the petitioner's ability to

obtain a fair trial and required to court to grant a mistrial.

The trial court's allowing the defendants to cross-examine

McKinley was an ineffective remedy to cure the prosecutorial

misconduct and requires a Rranting of a new trial.

II. THE GOVERNMENT'S REBUTTAL CLOSING ARGUMENT THAT “IF THE

GOVERNMENT WERE TO INTRODUCE EVERY RECORD THAT WERE AVAILABLE IN

THIS CASE, WE WOULD NEED ANOTHER JURY ROOM TO GET THEM ALL IN"

WAS IMPROPER AND SO PREJUDICIAL THAT THE DISTRICT CouRT'S RFMEDY

WAS INADEQUATE TO CURE THE RROR,

THE OTHER INSTANCES OF PROSECUTORIAL MISCONDUCT ALSO

WARRANT RELIEF,

In the closing arguments of petitioner's counsel and other

defense counsel, it was correctly argued that the government had

failed to produce a major portion of the records of the phone

company to corroborate the government witnesses’ testimony that

they had called California on numerous occasions before making a

trip to the West Coast. (See Vol. V, proceedings of May 1, 1979,

pp. 1293-1296; Vol. V, proceedings of May 3, 1979, pp. 1583-1585).

Prior to the government's closing rebuttal argument, a discussion

was held concerning the permissible scope of the government's

argument on the "missing documents". The District Court informed

the prosecutor that he must confine his argument to the record,

and inasmuch as the government had presented no proof on the

reason for the unavailability of the records, he could not make

reference to the reason for their unavailability. (Vol. v,

013.

proceedings of May 3, 1979, pp. 1618-1619).

Thereafter, the government prosecutor

argued:

So, ladies and gentlemen of the jury, I

respond -- he asked me -- he told me to

come in here and respond to these questions,

and every time he said -- and I will remind

you, I'm not going to try to pull any wool

over your eyes.

Mr. Tenner asked me to respond to telephone

tolls.

Well, i have responded to the telephone tolls,

ladies and gentlemen of the jurv, and you

consider the government's response to it.

And after that response, it ought to be clear

to you that those telephone tolls reflect

these people who testified that made telephone

calls and discussed heroin, that that's in

fact what was happening.

But I will go down the list, because he had

some other questions about this lisr.

Records of plane travel. The government

didn't introduce any records of plane travel

in this case,

The government doesn't have to introduce --

the Court will instruct you that the govern-

ment need not introduce records of every

record that mav be available.

If the government were to introduce every

record that were available in this case, we

would need another jury room to get them all

in here.

(Appendix, Vol. 2, p. 949(A)

L. 10 through p. 950, L. &).

Counsel for all defendants, including Eric Touchard, imme-

diately objected to the argument. (Id.) There followed a

discussion between all defense counsel, the prosecutor and the

Court. (Id., pp. 1657-1671). The Court ruled that the argument

was erroneous and instructed the government prosecutor to inform

the jury that the government did not have any other records in

its possession. (Id., p. 1672). Thereafter, the prosecutor

argued:

Ladies and gentlemen of the jury, the records

of plane travel, the government does not have

o14-

any records of any of the people involved in

this case, any of their plane -- the business

records of plane trips out there.

(Appendix, Vol. 2, p. 965,

L.L. 2-6)

The misconduct of the prosecution manifested itself in other

ways during the course of the trial also. The prosecutor repeated]

laced the testimony of his witnesses with references to cocaine

and marijuana, over the strenuous objections of all defendants.

The U.S. Attorney justified this testimony based upon the fact

that he had without basis included the word “cocaine” in the

indictment, and had charged the petitioner and his co-defendants

with its wholesale distribution. There was not one single sale

of cocaine that was definitely established to any degree. The

one sale that was vaguely alluded to was to a co-conspirator for

his own personal use, and was not for distribution. App. Supp.

172(a), (b).

The court, at numerous points during the trial, warned the

prosecution of “overkill” on the testimony regarding the other

narcotics. He stated that normally he would never allow such

evidence in; he did so in this case based upon the express repre-

sentation of the prosecutor that he would prove distribution.

App. Supp. 344(a), (b); 226(a)-(cc). The prosecutor clearly

realized that he had no such evidence.

The defendants moved for a mistrial on the basis of the

prohibition against prejudicial and inflammatory evidence, which

was denied. The defendants also requested that the court strike

all reference to cocaine and marijuana in the record. The court

denied this motion, but stated:

All right, Mr. Lynch, I don't feel com-

fortable about this cocaine business, I'll

be perfectly frank with you about it, but

I can't control the government or what they

na but I don't feel comfortable about

App. Supp. 1013(a).

-15-

The prosecutor's misconduct was also apparent in the general

way he conducted the whole trial. During his very opening

statement he made repeated references to the Nashville arrest of

defendant Metoyer and to the heroin that was allegedly found in

his bag, both items which had been suppressed by the trial court

previously. This breach was the subject of a motion for mistrial.

During the course of the trial, the court had to admonish the

jprosecutor on numerous occasions not to throw temper fits, not to

'

jbang his fists on the table, not to shout out objections in front

i|

lof the jury, not to make emotional statements without approaching

ithe bench, not to refer to evidence which he clearly knew was

‘inadmissible, not to get into inflammatory irrelevant issues, and

(e), 122(a).

This misconduct of the prosecutor even carried over into

re to make misrepresentations to the court. App. Supp. 386(a)-

|

final arguments before the jury, in addition to the situation

previously referred to. Om one occasion he tried to get the jury

_——- ———

to believe that an alleged drug dealer Calvin was a ficticious

erson in regards to the events that transpired, He stated"

The government can't find Calvin, because he is a John Doe. No

ne knows his last name. He can't be identified." There was

bsolutely no basis for this statement inn the evidence. It was

ust as bad as if the defense had stated that Calvin was not on

rial because he had made enough money to run away and not be

aught. The court immediately admonished him and required him to

ell the jury that no such facts were present in the record to

upport that content. App. Supp. 976(a), (b). He also misstated

he facts with regards to petitioner Eric Touchard's full name

eing on a list found during a search of an apartment during the

rrests. App. 978. Again, he was required to apologize to the

ry and correct himself.

-16-

ARGUMENT

The purpose of closing arguments or summations is for the

attornevs to assist the jury in analyzing, evaluating and applying

the evidence. When an attorney refers to evidence that was not

produced or implies that evidence supporting the attorney's

position exists but has not been introduced at trial, this eryceeds

the permissible scope of Argument and is error. See, United

States v. Morris, 568 F.2d 396, 401 (Sth Cir. 1978); United States

|v. Tasto, 586 F.2d 1068, 1069-1070 (Sth Cir. 1978).

Not every instance of erroneous argument requires the

reversal of the conviction; however, one must consider the degree

to which the remarks complained of having a tendency to mislead

the jury and to prejudice the accused; whether they were isolated

or extensive; whether they were deliberate or accidentally placed

before the jury; and the strength of the competent proof intro-

duced to establish the guilt of the accused, United Srates v.

Bowen, 500 F.2d 41 (6th Cir. 1974); United States v. Leon, 534

F.2d 667 (6th Cir. 1976). It is clear that in the present case

the prosecutor's argument purposely exceeded the bounds of

permissible argument and the trial court's specific instructions

on the scope of the rebuttal argument. Requiring the prosecutor

to turn right around and argue -- tongue in cheek -- that he

didn't have the records, accomplished little to clear the jury's

mind of this argument. The petitioner would submit that the

argument was improper and the court's remedy was insufficient to

cure this prosecutorial misconduct. The Sixth Circuit's decision

in denying relief clearly misinterprets the impact of this type

of misconduct. If it is admittedly error, any doubt should be

resolved in favor of the petitioner.

-17-

Administration, executed a search warrant at Apr. 23, 4460 Overland

IIL. THE ADMISSION INTO EVIDENCE OF EXHIBIT 59, A LIST OF

NUMBERS SEIZED DURING A SEARCH OF APARTMENT 23, 4460 OVERLAND

ROAD, WAS ERROR SINCE THE SEARCH EXCEEDED THE PERMISSIBLE SCOPE

OF THE WARRANT; FURTHER, THE TRIAL COURT COMMITTED PREJUDICIAL

ERROR BY ALLOWING THE GOVERNMENT TO INTRODUCE THE EXHIBIT WHEN

THERE WAS NO EVIDENCE THAT SUCH LIST WAS RELEVANT OR MATERIAL TO

ANY ISSUES INVOLVED IN THE PRESENT CASE. THE ERROR WAS PREJUDICIAL

BECAUSE IT ALLOWED IMPROPER INUENDO AND WAS SUBSTANTIALLY MORE

PREJUDICIAL THAT PROBATIVE.

FACTS

On June 18, 1978, officers of the Culver City Police Depart-

ment, accompanied by Agent George Hoelker of the Drug Enforcement

Road, Culver City, California. Among the fifty plus documents

discovered, a portion of which were seized, was a list containing

numerous names, some of which were the same first names as those

of the defendants and/or their associates in the alleged con-

spiracy and numerical figures beside each name (See Exhibit 59, a

description of which is found at App. Vol. 1, pp. 489-491),

Prior to trial the petitioner Eric Touchard filed a Motion

to Suppress the list identified as Exhibit 59. (App. Vol. 2, pp.

1057-1059). The basis of this motion was that the scope of the

warrant was too broad and constituted a general warrant. After a

hearing on this and motions of the other defendants, the Court

said:

Wherens certain of the items seized from

defendant Metoyer's residence were submited

to the court during the hearing and found

to be beyond the scope of the warrant, no

such evidence was presented on behalf of

Eric Touchard. His motion is therefore

denied in full. However, because Mr.

Touchard's appointed counsel recognized a

conflict of interest, withdrew, and was

replaced during the course of the hearing

on these motions, the court's ruling is

without prejudice to Mr. Touchard's right

to rebring the motion and to present

evidence in its support.

(Memorandum of February 2,

1979, App. 1103)

Subsequently, present counsel was appointed to represent the

petitioner Eric Touchard. (Entry on 12-12-78 of Docket Entries

for Eric Touchard App. Vol. I, p. 27).

On April 4, 1979, this counsel for Eric Touchard filed a

Motion to Suppress Exhibit 59 due to the immpermissible scope of

App. Vol. 2, pp. 1104-1110). A hearing on this motion was held

at which Agent Hoelker testified. He stated that on June 19,

1978, he participated in the exercution of a search warrant at

| Apt. 23, 4460 Overland Road. (App. Vol. 1, p. 417). While the

jnain purpose of the search was to determined who was in control

jof the apartment (App. Vol. 1, p. 460), it was conducted as a

part of an ongoing investigation of six alleged drug dealers in

the area, two of whom were Athens Carl McLaughlin and Orlando

\

'

|

{

{

Sloan, co-defendants in the present case, (App. Vol. 1, p. 426-

| 427). Although the name of Derrick Lastrap appeared on the

i

|warrant, and Eric Touchard's name did not, Agent Hoelker thought

i

| (App. Vol. 1, pp. 420, 461).

the Lastrop name to be an alias for the petitioner Eric Touchard,

Around 6:00 a.m., the officers arrived on the premises of

the apartment. Two individuals, neither of whom were defendants,

were found on the premises and detained while the search was

conducted. Agent Hoelker searched a back bedroom and found

numerous papers and documents on top of and in a small nightstand

found therein. (App. Vol. 1, pp. 422-423; 486-487). Afrer

picking up the documents and perusing through and determining

which documents were indicative of who controlled the apartment,

he turned them over to another officer. (App. Vol. 1, p. 424-

425). He took personal interest in the list, however, and kept

it himself because he felt that:

- « « In looking for those things that

would relate to Lastrap or that person or

that body and others that would be associated

-19-

the execution of the warrant. (Motion to Suppress of Eric Toucharé

with him to assist me in my duties as a

narcotics agent in this particular investi-

gation.”

(App. Vol. - p. 461, L.L. 11-16)

He further testified that the petitioner Eric Touchard was not

present when the search was executed (App. Vol. 1, p. 461); nor

did he know who prepared the list nor when it was prepared (Id.,

Pp. 468), nor did he know that the common names contained therein

were references to any of the co-defendants (Id., p. 469). He

stated that the numbers thenrselves could refer to anv number of

thines.

The district court denied the Motion to Suppress, saving:

All right, taking into consideration the

circumstances as a whole, the fact that

the officer here is under a valid search

warant and the fact that the officer had

grounds to go through these papers, and

the fact that the officer recognized this

document as having evidentuary value insofar

as his target investigation Mr. Sloan is

concerned, the Court holds that the officer

had a right to extract this piece of paper

as being evidence in the commission of a

crime or evidence connected with a crime,

therefore, it is legally admissible in this

case as to Exhibit No. 59.

(App. Vol. 4, p. 453,

Lele 1-12)

As to the petitioner's objection (Vol. III, proceedings of

April 4, 1979, p. 225) that the list was not shown to be relevant

er macercial, the Court said:

Gentlemen, this matter, as you probably know,

has caused me as much problems as anything

I have had in a long time, but when you take

the combination of circumstances, such as

the name Nub and Dedus and Roy and Greg and

Eric and Calvin and Sloan and add them up,

and you add to that the savings account of

Eric Touchard, the note from Mike to Eric

and another savings account here of Eric

Touchard and add to that what the government

has reprsented they are going to introduce

in connection with the address book taken

from Mr. Metoyer, the Court determines that

there has been sufficient foundation and the

Court will allow it to be introduced.

(App. Vol. 1, p. 485, L.

through p. 486, L. 2.)

-20-

17

ARGUMENT ON SEARCH ISSUE

The petitioner would submit that the seizure of the list was

illegal and its admission into evidence was erroneous.

In order to constitute a valid plain view seizure, it must

be shown to be the result of a valid intrusion onto the defendant'$

property, be an inadvertent discovery and the item seized must be

immediately apparent as contraband. Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022 (1971). Im Coolidge at 466-467, 91

S.Ct. 2038, the Court cited with approval the concurring opinion

in Stanley v. Georgia, 394 U.S. 557, 569, &89°S.Cr. 1243, 1250. ®

There the officers executing a search warrant for gambling

paraphernalia found in a drawer three reels of film which they

viewed using a projector and screen found in another room, and

then seized because they concluded the films were obscene. While

the majority reversed on the basis that the statute prohibiting

the private possession of obscene material was unconstitutional,

Justice Stewart's concurring opinion found the seizure of the

reels to have been unconstitutional and unwarranted. Although

the reels were literally in plain view, because the contents of

the film could not be discovered by “mere inspection", it was not

seizable as contraband under the plain view doctrine.

In the present case, there was no evidence from Agent Hoelker

that he knew or suspected the list to be contraband, fruits or

instrumentalities of a crime, from merely looking at the list.

As noted by Agent Hoelker, he seized it to assist in future

investigations, and not because it was contraband or an instru-

mentality of a crime. The seizure cannot be justified as a plain

view seizure.

Additionally, the seizure cannot be justified as a "mere

evidence” seizure under Warden v. Hayden, 387 U.S. 294, 87 S.Ct.

1642 (1967), and its progeny. In Hayden, certain clothing was

seized which the defendant was alleged to have worn at the time

-21-

of the commission of an armed robbery. Since the ciothing was

related to the crime and it was the “hot pursuit" which prompted

the police to make the search, the search was ruled to be vaiid

and the clothing admissible. While the Supreme Court decision in

Hayden ended the prohibition against the seizure of "mere evidence

of a crime, as distinguished from contraband, fruits or instru-

esacabi cies thereof, probable cause must still exist and a

connection must be shown between the items sought and the criminal

behavior. As the Supreme Court noted,

» « « in the case of ‘mere evidence,’

probable cause must be examined in terms

of cause to believe that the evidence

sought will aid in a particular appre-

hension or conviction.”

Warden v. Hayden, 387 U.S. at

7.

The rule announced in Hayden does not authorize the seizure of

articles that are not related to the crime. See, Cooper v.

California, 386 U.S. 58, 87 S.Ct. 788 (1967); Preston v. United

States, 376 U.S. 364, 84 S.Cr. 881 (1964).

In Andresen v. Maryland, 427 U.S. 463, 96 S.Cr. 2737 (1976),

the Court applied the “mere evidence” rule to admit documents of

a real estate transaction other than the ones under investigation

and named in the warrant. The Court concluded that the seizure

of these other documents was not illegal because the trained

special investigators could reasonably have believed that the

evidence specifically dealing with the other real estate lots

could be used to show the defendant's fraudulent intent with

respect to the real estate lost under investigation, especially

since both had numerous features in common. 427 U.S. at 483-484.

In' the present case, Agent Hoelker testified that the search

was conducted to determine who had control of the apartment in an

ongoing drug investigation. He stated quite emphatically that he

had no information that related the list with either the then

-22-

investigation or this prosecution. This clearly fails to meet

the mandate of Hayden that seizure will be permitted if it relates

to a “particular apprehension or conviction". His retention of

the list for help in future investigations is clearly not related

to any “particular apprehension or conviction".

Unlike the decision in Andresen where the other documents

were admitted because « relationship was etablished with the

prosecution, i.e., the establishment of fraudulent intent in land

transactions which contained common features, in the present case

no such relationship exists. In this case there is no evidence

that the list is in any way relted to the narcotic and/or con-

spiracy charges. In Andresen the defendant executed the documents

in question; here there is no such proof that Eric Touchard

created or wrote the list.

The petitioner would submit that the District Court erred in

admitting the exhibit into evidence over the petitioner's objec-

tions, and that the decision of the Sixth Circuit clearly misappli¢s

holdings of this Court.

ARGUMENTS ON RELEVANCY ISSUE

The petitioner Eric Touchard would submit that the list was

irrelevant and immaterial to the issues in the present case.

As noted earlier, Agent Hoelker testified that he did not

know who prepared the list; nor did he know what the numerals

beside each name stood for; nor did he know who each name repre-

sented. The fact that the address of the apartment was found in

a black book taken from co-defendant Metoyer does not link the

list with the conspiracy. There was no evidence that Eric Touchard

ever wrote the document or that it was creatd in relationship to

the conspiracy. To allow the jury to simply infer what they want

from the list is impermissible because no relationship between

the list and conspiracy was established.

-23-

CONCLUSION

The petitioner Eric Touchard submits that the judgment below

the Sixth Circuit Court is a unique and erroneous departure from

decisions of this Court and other federal jurisdictions which

require that convictions that are tainted with prosecutorial

misconduct be set aside. As such, the decision of the Sixth

Circuit represents a departure from the high standards of which

prosecutors are to be held in the prosecution of criminal cases.

As concerns the admission into evidence of Fxhibit 59, the

petitioner Eric Touchard submits that the provisions of the Fourth

Amendment of the United States Constitution and applicable federal

cases were not adhered to and the Sixth Circuit decision allowed a

citizen to have tiis liberty taken from him in violation of the

Fourth Amendment to the Sonstitution and the decisions of this

Court which were designed to protect a citizen from being convicte

by his povernment through evidence improperly seized. This

petition for a writ of certiorari should, therefore, be granted.

Respectfully submitted,

LIONFL R. BARRETT, JR., P. C.

211 Printers’ Alley Building

Nashville, Tennessee 37201

(615) 254-1471

B

si aheni Re mere vt

illiam P. Redick, “Jr.

Attorneys for Petitioner

-24-

Nos. 79-5195/6, 5198 and 5245

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee be fe 2

—

Va

ATHENS CARL MCLAUGHLIN (79-5195) F L E D

GREGORY THOMAS METOYER (79-5196) OCT 22 1981

SAMUEL PATRICK TOUCHARD III (79-5198)

ERIC M. TOUCHARD (79-5245),

JOHN P. HEHMAN, Clerk

Defendants-Appellants

/

Before: WEICK and ENGEL, Circuit Judges and PECK, Senior Circuit

Jucce

_—

All four defendants were convicted of count one of a nine-

count in@iccrent charging them with conspiracy to distribute heroin

and cocaine between early 1973 and July, 1977, contrary to 21

U.S.C. &§ 843, 846. Defendant McLaughlin was convicted of counts

4, 6 and 7, charging him with possession with intent to distribute

and distribution of heroin during certain periods of time within

the period of conspiracy. Metoyer was also convicted of count 6.

Defendants raise a number of issues in common and certain defendants,

particularly McLaughlin, challenge the adequ. 3° 9F t..2 evidence

supporting their conviction of the substantive charges.

Upon a careful review of the record as a whole, the court

is of the opinion that the government properly charged and proved

a single criminal conspiracy involving the sale and distribution

of heroin between California and Tesnessee and that the involvement

of each defendant in that conspiracy was sufficient to support his

conviction on that count. The court also finds sufficient evidence

to support the conviction of McLaughlin on the substantive

Aopen Aix +

+ OP bene ee

79-5195, ete. _2-

charges of counts 4, 6 ani 7, and to support Metoyer's conviction

On count 6.

The court is furthe: of the opinion that there was no fatal

variance between the proot.; ang the allegations in the indictments.

The defendants Charge seyeral instance : of prosecutorial mis-

conduct. Their primary misconduct claim is based on Brady v. Mary-

Jand, 373 U.S. 83 (196%), In particular, they claim that the govern-

ment prosecutor deliberatory withheld information known to him but

not to the cefendants thit a key government witness, one McKinley,

had in previous criminal trials denied the sale of drugs or having

. oo arié “ni “ ‘. . .

ever been to California fur tne purpose of buying drugs. This

previous testimony wes tlatly contradicted by McKinley's testimony

in this case. The information came to light later in the trial and

United States District Guay L. Clure Morton, after carefully con-

sidering the matter, deni, the several motions for mistrial and

for dismissal of the in. “tments for misconduct. While it is true

that Judge Morton initially offered to grant a new trial upon the

condition that all defendints consent theret., i. is apparent from

the record that his ult is..+,. decision to continue on in the present

trial was based upon his “.nejiusion that the Brady violation was

curable, He permitted wo.1,, cross-examination, offered any necessary

adjournment of the trie! iu, counsel to investigate, and gave strong

curative instructions t. +), jury, all of which we conclude were

adequete to cure the ty Cohan Ty | the government misconduct. Sce

United States v. Enrigh:, yy F.2d 980, 989-90 (6th Cir. 1978).

The court has Care tutly examined the othe: allegations of

prosecutorial misconduc: oii) concludes that while the coaduct of the

prosecution at times leo: yyy to be desired, at no time did it

rise to the level of Fe\<: ible error or deny to any defendant the

79-51%, ete, ~3-

essentiats of a fair trial. Moreover, Judge Morton's curative

instructions Substantially weakened the overall effect of the

prosecutor's indiscretions.

In tie course of the execution of a search warrant of the

apartment allegedly occupied by Eric Touchard, the government

seized a paper containing 32 names, each with a number beside it.

This seizure, the defendants assert, was outside the scope of the

Warrant. Defendants also dispute the government's claim that the

exhibit was in “plain view", thus making the seizure lawful

under that excent

“ception to the warrant requirement. The court is of

the opinion <Hs+ the Cocument does come within the Plain view excep-

tion to the werrant recuirement. See Coolidge v. New Hampshire,

403 U.S. 443,

#26 (1970) (plurality); United States v. Truitt, 521

F.20 1174 (6th Cir. 1975). Plaintiffs* reliance upon United States

v: Gray. 484 F.24 352 (6th Cir. 1973), is misplaced because the

search warrant in question here, which called for the search and

seizure of evidence indicating ownership and possession of the

apartment, justified the closer imepection w ch led the officers

to reasonably conclude that they had discovered an incriminating

document. The defendants' claim that this exhibit was not suffi-

ciently authenticated is also without merit.

The defendants elsim that the aforementioned errors singly

and particularly in com> ination produced a trial such as that

which had been the concern of the United States Supreme Court in

Kotteakos v. united States, 328 U.S. 750 (1946); Krulewitch v. United

States, 336 u.s, 440, 4:5 (1949) (Jackson, J., concurring), and

that each Qefendant was Qenied the right to have his own involvement

79-5195 ete. ~4-

and evidence thereof separately considered. The court 5 of the

opinion tat the trial, while long, was not basicall: unfair and

that Ju‘t;2 Morton's governance of it avoided the er: ors of those

cases. In addition, the court finds no reversible error in Judge

Morton's instructions to the jury.

Fach of the four defendants, McLaughlin, tctoyer, Erie and

Samuel Touchard, received a special parole tera of three years

as part of his sentence for the conspiracy ccaviction. Each

sentence was imposed prior to the United St tes Supreme Court's

decision in Bifulco v. United States, 447 J.S. 381 (1980). As

the government concedes, Bifulco requires that the special parole

term aspect of each Gefendant's conspiracy sentence be vacated.

According) y,

If IS ORDERED that each defendant's sentence is vacated and

the cause remanded to the district court for resentencing in

accordance with this order. The judgment of the district court

in each appeal is affirmec in all other respects.

ENTERED BY ORDER OF THE COURT

tf Vielen a...

Clerk

A TRUE COPY

Atters?:

9C24°) © bree ss sg, Cherk

ry ADeberar Korver

Ocpeuasy ©

ISSUED AS NANDATE: December 29, 1961

COST: NONE

NANDATE APPLIES TO CASES 79-5198 and 79-5245, only.

ore em

L

Nos. 79-5198 and 79-5245 } F I L E D

UNITED STATES COURT OF APPEALS nFC 17 1981

FOR THE SIXTH CIRCUIT

JOHN P. KExM

UNITED STATES OF AMERICA, cHMAN, Clerk

Plaintiff-Appellee ee ae a

V.

SAMUEL P. TOUCHARD, III (79-5198)

ERIC M. TOUCHARD (79-5245)

Defendants-Appellaats

/

Before: WEICK and ENGEL, Circuit Judges and PECK, Senior

Circuit Judge

No judge in regular active service of the court having

requested a vote on the suggestion for a rehearing en banc,

the petition for rehearing filed herein by the defendants-

appellants has been referred to the panel which heard the

Original appeal. Upon consideration of said petiticn, the

court finding no issues presented which have not been

previously considered,

IT IS ORDERED that the petition for rehearing en

banc be and it is hereby denied.

ENTERED BY OCRDER OF THE COURT

pa ere

VO Clerk ;

Aoperdix és

S\-GI99

RECEIVED

IN THE

SUPREME COURT OF THE UNITED|STATESB 7 1982

OrFiCe OF THE CLEXK

SUPREME COURT, US.

—— _—_——

OCTOBER TERM, 1981

No.

ERIC TOUCHARD,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

MOTION FOR LEAVE TO

PROCEED

IN FORMA PAUPERIS

Pursuant to 18 U.S.C. §$3006A(d)(6) and Rule 53 of this Court,

the Petitioner, Eric Touchard, asks leave to file the attached

Petitioner for Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit without prepayment of fees or costs

and to proceed in forma pauperis. The Petitioner was represented

by counsel appointed pursuant to 18 U.S.C. §$3006A in the district

court and on appeal to the United States Court of Appeals for the

Sixth Circuit.

Respectfully submitted,

LIONEL R. BARRETT, JR., P. C.

211 Printers’ Alley Building

Nashville, Tennessee 37201

(615) 254-1471

Attorneys for Petitioner

RECEIVED

FEB % 1982

Orrict OF THE CLERK

SUPREME COURT, US.

ea

SUPREME COURT OF THE UNITED STATES

Bl-G199

IN THE

OCTOBER TERM, 1981 id

No.

—<-<———--2ee7r ee" =O

ERIC TOUCHARD,

Petitioner,

-

UNITED STATES OF AMERICA,

Respondent.

MOTION TO CONSOLIDATE ALL PETITIONS

FOR CERTIORARI

IN THESE MATTERS

Comes now the attorney for the petitioner Eric Touchard and

would show to the Court that it is his understanding that at

least two other co-defendants, Athens Carl McLaughlin (79-5195)

and Gregory Thomas Metoyer (79-5196), are also going to file

petitions for certiorari as concerns the decision of the United

States Court of Appeals for the Sixth Circuit filed on October 22,

1981. All of these parties were co-defendants at the trial held

in the Middle District of Tennessee in 1979,

These cases were all consolidated for oral arguments and

briefing before the United States Court of Appeals for the Sixth

Circuit. They have in all respects always been consolidated.

The issues that would be raised in the various petitions for

certiorari are common to each of the defendants who participated

at the trial belew and who seek review of the decision of the

Sixth Circuit Court. Since these cases are sought to be reviewed

en certiorari to the same Court and involve identical or close y

related questions, it is requested that this petitioner be allowed

to participate in any hearings that are granted to other petitioner

and further, that these individual petitions for certiorari be

consolidated pursuant to the spirit of Rule 19 of the United

States Supreme Court Rules.

Respectfully submitted,

LIONEL R. BARRETT, JR., P. C.

211 Printers’ Alley Building

Nashville, Tennessee 37201

(615) 254-1471

GO H#

by: hes bk fon Ze

aN R. Sate r./

7 Wgbere Labi —

Attorneys for Petitioner

CERTIFICATE

I certify that I have provided a copy of this motion to the

following. counsel:

1. Margaret Huff, Assistant United States Attorney

879 United States Courthouse

Nashville, Tennessee 37203

2. Ms. Michelle D. Washington

Attorney at Law

304 South Broadway, Suite 441

Los Angeles, California 90013

Attorney for Appellant Athens Carl McLaughlin, Jr.

3. Mr. Leo Branton, Jr.

Attorney at Law

1901 Avenue of the Stars, Suite 520

Los Angeles, California 90067

Attorney for Appellant Gregory Thomas Metoyer

4. Mr. Michael Noel

Attorney at Law

Chancery Building

421 Charlotte Avenue

Nashville, Tennessee 37219

on this the 8th day of February, 1982.

one . Barrett, Jr.