Petition — Stephens v. United States

8 i 1 1 +) 1 ara a

WO. PSAN14 (QQ3

ALEXANDER L. STEVAS

IN THE SUPREME COURT OF\LHE CLERK

UNITED STATES

OCTOBER TERM 1982

IVAN STEPHENS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

VINCENT FLYNN

Counsel of Record

MAX B. KOGEN, P.A.

Suite 500

700 Brickell Avenue

Miami, Florida 33131

(305) 371-2661

VINCENT FLYNN

1414 Coral Way

Miami, Florida 33145 |

(305) 858-1414 |

QUESTIONS PRESENTED FOR REVIEW

I.

WHETHER THE COURT SHOULD

GRANT CERTIORARI TO RESOLVE

A CONFLICT IN THE CIRCUITS

WITH RESPECT TO WHETHER

PED.R.CRIM.PRO. RULE 24

REQUIRES THE TRIAL COURT,

UPON REQUEST, TO VOIR

DIRE PROSPECTIVE JURORS

WITH RESPECT TO THE WEIGHT

THAT THEY WOULD GIVE TO THE

TESTIMONY OF POLICE OFFI-

CERS.

II.

WHETHER THE COURT SHOULD

GRANT CERTIORARI TO RESOLVE

THE QUESTION OF WHETHER

POLICE AGENTS, WHO REMAIN

INSIDE A HOME AND SEARCH

THE HOME WHILE SECURING THE

PREMISES, AND WHILE THE

AGENTS SOUGHT AND OBTAINED

A SEARCH WARRANT, EXCEEDED

THE SCOPE OF THE WARRANT BY

USING AND ANSWERING THE

DEFENDANT'S TELEPHONES AND

BY ATTEMPTING TO QUESTION

THE CALLERS AND CALLEES

WITH RESPECT TO THEIR PARTI-~

CIPATION IN A DRUG DEAL.

Ifl.

WHETHER THE COURT SHOULD

GRANT CERTIORARI TO RESOLVE

THE QUESTION OF WHETHER

ERROR IS HARMLESS BEYOND A

ke

REASONABLE DOUBT, WHEN THE

ABOVE-DESCRIBED CONSTITU-

TIONALLY INFIRM EVIDENCE

WAS INTRODUCED INTO EVI-

DENCE, WHEN THE ABOVE-DES-

CRIBED EVIDENCE CONSTITUTED

EXTRA-JUDICIAL HEARSAY AND

VIOLATED THE CONFRONTATION

CLAUSE BY HEAVILY IMPLICAT-

ING THE PETITIONER IN EXTRA-

NEOUS CRIMINAL ACTIVITY,

AND WHEN THE INDEPENDENT

EVIDENCE WAS COMPOSED SUB-

STANTIALLY OF DEA AGENTS'

TESTIMONY.

PARTIES IN THE ELEVENTH CIRCUIT

United States of America

Frank Vadino

Ivan Stephens

Elio Perez~-Herrera

Eduardo Comensana

Ralph Natale

ADDITIONAL PARTIES IN COURTS BELOW

Antonio D'Amato

Mey

TABLE OF CONTENTS AND AUTHORITY

QUESTIONS PRESENTED FOR

REVIEW eeeeeeeeeeneeeeeeeeeneee i

PARTIES TO PROCEEDING IN

COURTS BELOW eoeeneeeeeeeeeenee ii

TABLE OF CONTENTS AND

AUTHORITY eeeneeeeeeeeeeeewee iii

OPINIONS IN THE COURTS BELOW ... viii

JURISDICTION @eeeeeeeocod eon ©eeeeeaese @ ix

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS ....eeeeeee:% ix

STATEMENT OF THE CASE ...eeeee0- 1

ARGUMENT @eeeeenoeaeeeeeeeavreeeeneaneene4 9

THE COURT SHOULD GRANT CER-~-

TIORARI TO RESOLVE A CON-

FLICT IN THE CIRCUITS WITH

RESPECT TO WHETHER FED.R.-

CRIM.PRO., RULE 24 REQUIRES

THE TRIAL COURT, UPON

REQUEST, TO VOIR DIRE

PROSPECTIVE JURORS WITH RES-

PECT TO THE WEIGHT THAT

THEY WOULD GIVE TO THE

TESTIMONY OF POLICE OFFI-

CERS.

THE COURT SHOULD GRANT CER-

TIORARI TO RESOLVE THE QUES-

TION OF WHETHER POLICE

AGENTS, WHO REMAIN INSIDE A

HOME AND SEARCH THE HOME

WHILE SECURING THE PREMI-

SES, AND WHILE THE AGENTS

SOUGHT AND OBTAINED A

-i1ii-

SEARCH WARRANT, EXCEEDED

THE SCOPE OF THE WARRANT BY

USING AND ANSWERING THE

DEFENDANT'S TELEPHONES AND

BY ATTEMPTING TO QUESTION

THE CALLERS AND CALLEES

WITH RESPECT TO THEIR PARTI-

CIPATION IN A DRUG DEAL.

THE COURT SHOULD GRANT CER-

TIORARI TO RESOLVE THE QUES-

TION OF WHETHER ERROR IS

HARMLESS BEYOND A REASON-

ABLE DOUBT, WHEN THE ABOVE-

DESCRIBED CONSTITUTIONALLY

INFIRM EVIDENCE WAS INTRO-

DUCED INTO EVIDENCE, WHEN

THE ABOVE-DESCRIBED EVI-

DENCE CONSTITUTED EXTRA-

JUDICIAL HEARSAY AND VIO-

LATED THE CONFRONTATION

CLAUSE BY HEAVILY IMPLICAT-

ING THE PETITIONER IN EXTRA-

NEOUS CRIMINAL ACTIVITY,

AND WHEN THE INDEPENDENT

EVIDENCE WAS COMPOSED SUB-

STANTIALLY OF DEA AGENTS'

TESTIMONY.

APPENDIX eee eee eeee eee eeeeeeee App-1

CERTIFICATE OF SERVICE .......

AUTHORITY

CASES

Alderman v. United States,

394 U.S. 166 (1969) .cccccccce 19

Aldridge, United States v.,

364 U.S. 308 CRE aa wible cides

-iv-

Ansley v. Stynchombe,

$0 F.2d 437 (5th Cir. 1973). 30

Arkansas v. Sanders,

99 S.Ct. 2566 (1979)... 17,25

Baldwin, United States v.,

607 F.2d 1295 (9th Cir. 1979).. 14

Bosby v. People of California,

o56 Cal.App.2d 209 (1967)..... 50

Brewer, United States v.,

427 F.2d 409 (10th Cir. 1970). 14

Brown v. United States,

F.2d 543 (D.C. Cir.

L9SEdcccccceccccsecsccsccce 14,51

Campagnuolo, United States v.,

383 F.2d 852 (5th Cir.

DPT. be aeie ele. os 606 b6 ee eese 18,20

28

Castillo, United States v.,

615 F.2d 878 (9th Cir. 1980).. 40

Chadwick, United States v.,

3 Uebe ( Pepe eacecosocvcnteae

30

Chambers v. Maroney,

399 UB. 42 C1970) cccccccccctasgd4

50

Chapman v. California,

Use ( Fecodexceec dee SO

chapman v. United States,

5 U.S. 6 ( 9 Re Ae 31

Chavez v. United States,

v's (10th Cir. 1958). 14

-yvo>

Coolidge v. New Hampshire,

4 3 U.S. 481 co } Sear 25

Dutton v. Evans,

4 U.S. 74 (1970) ...66666--433,40

41,42

Dzialak, United States v.,

441 F.2d 212 (2d Cir. 1971)... 26

Figueroa, United States v.,

No. 82-5699 (No opinion)...... 18

Frazier v. Cupp,

3 4 U.S. 731 DPR ss oe Wwe 6 6 0:6 32

Gassawa United States v.,

456 F.2d 624 (5th Cir. 1972).. 13

Gore, United States v.,

435 F.2d 1110 (4th Cir. 1970). 13

Gorin v. United States,

F.2d 641 (lst Cir. 1963)... 13

Harrington v. California,

295 U.S. 250 (1969) .eseeeee+ 34,50

Harris, United States v.,

534 F.2d 95 (7th Cir. 1976)... 31

Hill, United States v.,

263 F.2d 812 (D. Ohio 1920)... 27

Kane, United States v.,

450 F.2d 77 (5th Cir. 1971).18,25

27

Killian, United States v.,

524 F.2d 1268 (5th Cir.

DTS dccccccceccccccsesesces 18,38

-vi-

Kotteakos v. United States,

328 0.8. 750 C1I9ES) ccccescccee 48

Marron v. United States,

21d UcBe 192 CLGST docccccccess sg ZO

Martin, United States v.,

507 F.2d 428 (7th Cir. 1974).. 14

Matlock, United States v.,

415 Bebe 164 bis) ) eee are 32

Mendoza, United States v.,

473 F.2d 692 (5th Cir. 1971).. 26

Mendoza, United States v.,

574 F.2d 1373 (5th Cir. 1978). 28

Michigan v. Tyler,

S56 UeBse SSS C1IOTE) ccccccccees 25

Payton v. United States,

1 | A 3 SREP éecceeoss 24

Roberts, United States v.,

583 F.2d 1173 (10th Cir. 1978) 41

Ross, United States v.,

347 F.2d 97 (8th Cir. 1967)... 13

Schneble v. Florida,

405 woes 427 Ce a iGine cau e 50

Sellers, United States v.,

271 F.2d 475 (D.C. Cir. 1959). 14

Spells v. United States,

263 F.2a0 609 (5th Cir. 1958)... 12

Stanford v. Texas,

O28. 676 C1968) ccccccetovce 24

-vii-

Stoner v. California,

376 U.S. 483 iin a 31

Truslow, United States v.,

530 F.2d 257 (4th Cir. 1976).. 48

Turk, United States v.,

526 F.2d 654 (5th Cir. 1976).. 28

Vadino, United States v.,

680 F.2d 1329, rehearin

a 7 tith

denied, 691 F.2d 977 (

Cir. 1982) Cved eee CeCe O Ce COC aOaS

13,20,22

23,33,38

Various Gambling Machines

United States Ves

478 F.2d 1194 (5th Cir. 1972). 26

Walter v. United States,

0 S.Ct. 23 5 ( 9 Odeccccsconl gas

26

Webster, United States v.,

649 F.2d 346 (5th Cir. 1980).. 47

48,51

whites United States v.,

4 U.S. 745 (197 Pewee ebioacee 30

Ybarra v. Illinois,

0 5 Ges 3 $4. 5) ) ee 25

Zurcher v. Stanford Daily News,

436 U.S. 547 (197 Tenaeadesaes 24

CONSTITUTIONAL, STATUTORY

AND RULES PROVISIONS

U.S. Const., Amendment IV.. 16,18,19

20,22,23

27, 28,50

-viii-

U.S. Const., Amendment VI ...... 40

18 GeO. 2510 e*eeneeieeeeeneeeeneeeee 20

18 U.S.C. 2511 eeeeseeoeeeeeeaeeeaeenene 28

21 U.S.C. GEL Ca) cccccccccccceccces 2

21 U.S.C. 846 eeeeeeaeaeev eevee eeee 2

28 U.8.C. 1254(1) eeeeseeeeeeeenenee

Fed.R.Ev. Rule 801 e*eneneeeeeeeeneee 7

Fed.R.Ev. Rule 802 ...seeecceees

Fed.R.Crim.Pro. Rule 24 ...++++- 12

Supreme Court Rules Rule 17.1(A) 14

REFERENCE TO OFFICIAL REPORTS

The opinion of the lower courts

is reported in United States v.

Vadino, 680 F.2d 1329 (llth Cir.

1982), rehearing denied, 691 F.2d

977 (llth Cir. 1982).

JURISDICTION

On July 19, 1982, the Eleventh

Circuit Court of Appeals affirmed the

-ix-

Petitioner's conviction. See,

United States v. Vadino, supra,

680 F.2d 1329 (llth Cir. 1982). On

November 15, 1982, the Eleventh Cir-

cuit denied rehearing. 691 F.2d at

978 (llth Cir. 1982). The Supreme

Court has jurisdiction pursuant to 28

U.S.C. 1254(1). Petitioner seeks

review of a final decision of the

Court of Appeals affirming Peti-

tioner's judgment, conviction and

sentence,

RELEVANT CONSTITUTIONAL, STATUTORY,

AND RULE PROVISIONS

U.S. Const., Amendment

Vi:

In all criminal prosecu-

tions, the accused shall

enjoy the right to a speedy

and public trial, by an

impartial jury of the State

and district wherein the

crime shall have been com-

mitted, which district

shall have been previously

ascertained by law, and to

be informed of the nature

and cause of the accusa-~

tion; to be confronted with

the witnesses against him;

to have compulsory process

for obtaining witnesses in

his favor, and to have the

Assistance of Counsel for

his defense.

U.S. Const., Amendment

IV:

The right of the people

to be secure in their per-

sons, houses, papers, and

effects, against unreason-

able searches and seizures,

shall not be violated, and

no Warrants shall issue,

but upon probable cause,

supported by Oath or affir-

mation, and particularly

describing the place to be

searched, and the persons

or things to be seized.

18 U.S.C. 23

(a) Whoever commits an

offense against the United

States or aids, abets, coun-

sels, commands, induces or

procures its commission, is

punishable as a principal.

(b) Whoever willfully

causes an act to be done

which if directly performed

by him or another would be

an offense against the

United States, is punish-

able as a principal.

-xi-

21 U.S.C. 841:

(a) Except as autho-

rized by this subchapter,

it shall be unlawful for

any person knowingly or

intentionally --

(1) to manufacture,

distribute, or dispense, or

possess with intent to manu-

facture, distribute, or dis-

pense, a controlled sub-

stance; or

(2) to create, dis-

tribute, or dispense, or

possess with intent to dis-

tribute or dispense, a

counterfeit substance.

21 U.S.C. 846:

Any person who attempts .

or conspires to commit any

offense defined in this sub-

chapter is punishable by

imprisonment or fine or

both which may not exceed

the maximum punishment pre-

scribed for the offense,

the commission of which was

the object of the attempt

or conspiracy.

Pub.L. 91~513, Title II,

406, Oct. 27, 1970, 84

Stat. 1265.

Fed.R.Crim.Pro. Rule

(a):

(a) Examination. The

court may permit the defen-

dant or his attorney and

the attorney for the govern-

-xii-

ment to conduct the examina-

tion of prospective jurors

or may itself conduct the

examination. In the latter

event the court shall per-

mit the defendant or his

attorney and the attorney

for the government to sup-

plement the examination by

such further inquiry as it

deems proper or shall

itself submit to the pros-

pective jurors such addi-

tional questions by the

parties or their attorneys

as it deems proper.

Fed.R.Ev. Rule 801:

The following defini-

tions apply under this

article:

(a) Statement. A

“statement” is (1) an oral

or written assertion or (2)

nonverbal conduct of a

person, if it is intended

by him as an asser-

tion.

(b) Declarant. A

"declarant" is a person who

makes a statement.

(c) Hearsay. "“Hearsay"

is a statement, other than

one made by the declarant

while testifying at the

trial or hearing, offered

in evidence to prove the

truth of the matter

asserted.

-xiii-

(d) Statements which

are not hearsay. A state~-

ment is not hearsay if --

(1) Prior statement

by witness. The declarant

testifies at the trial or

hearing and is subject to

cross-examination concern-

ing the statement, and the

statement is (A) inconsis-

tent with his testimony,

and was given under oath

subject to the penalty of

phe at a trial, hear-

ng, or other proceedings,

or in a deposition, or (B)

consistent with his testi-

mony and is offered to

rebut an express or implied

charge against him of

recent fabrication or

improper influence or

motive, or (C) one of iden-

tification of a person made

after perceiving him; or

(2) Admission by

party-opponent. The state-

ment is offered against a

party and is (A) his own

statement, in either his

individual or a representa-

tive capacity or (B) a

statement of which he has

manifested his adoption or

belief in its truth, or (C)

a statement by a person

authorized by him to make a

statement concerning the

subject, or (D) a statement

by his agent or servant con-

cerning a matter within the

scope of his agency or

employment, made during the

-xiv-

existence of the relation-

ship, or (EB) a statement by

a coconspirator of a party

during the course and in

furtherance of the conspi-

racy.(As amended Pub.L.

94-113, 1, Oct. 16, 1975,

89 Stat. 576.)

Fed.R.Ev. Rule 802:

Hearsay is not admis-

sible except as provided by

these rules or by other

rules prescri.ed by the

Supreme Court pursuant to

statutory authority or by

Act of Congress.

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

Cases in the courts of

appeals may be reviewed by

the Supreme Court by the

following methods:

Ye 2 By writ of

certiorari granted upon a

petition of any party to

any civil or criminal case,

before or after rendition

of judgment or decree;

(2) By appeal by a party

relying on a State statute

held by a court of appeals

to be invalid as repugnant

to the Constitution,

treaties or laws of the

United States, but such

appeal shall preclude

review by writ of certio-

rari at the instance of

such appellant, and the

review on appeal shall be

restricted to the Federal

questions presented;

(3) By certification at

any time by a court of

appeals of any question of

law in any civil or crim-

inal case as to which

instructions are desired,

and upon such certification

the Supreme Court may give

binding instructions or

require the entire record

to be sent up for decision

of the entire matter in con-

troversy.

-xvi-

STATEMENT OF THE CASE

A. Course of proceedings and

disposition in the court below.

The Petitioner, Ivan Stephens,

was the defendant in the trial court,

and the Respondent, the United States

of America, was the prosecution. In

this brief, the symbol "“R" will be

used to designate the various trans-

cripts of proceedings before the

trial court. "TR" will be used to

designate the transcript of the trial

itself. "SR" will designate supple-

mental records. All emphasis is

added unless otherwise indicated.

Petitioner Stephens was charged

in three counts of a nine count

indictment with eight co-defendants.

In Count I of the indictment, he was

accused of conspiracy to knowingly

possess, with the intent to distri-

bute, cocaine and methaqualone, in

violation of 21 U.S.C 84l(a)(1),

and 21 U.S.C, 846. In Count II

of the indictment, Petitioner was

charged with possession, with the

intent to distribute, methaqualone

and cocaine in violation of 18

U.S.C. 84l(a)(1). In Count III,

Petitioner was charged with posses-

sion with the intent to distribute,

cocaine in violation of 21 U.S.C.

B4l(a)(1). (R: 1-73 66-72).

Trial commenced on July 3, 1980,

and was terminated on July 14, 1980,

with a verdict of guilty returned

against Petitioner on all three

counts (R: 371).

Petitioner filed a Motion for New

Trial on July 21, 1980 (R: 415-416).

This motion was denied on August 5,

1980 (R: 457).

On September 2, 1980, the Peti-

tioner was sentenced to a term of

imprisonment of five years on each of

the three counts, with the second

count to run consecutive to the first

count, and the third count to run con-

currently with the second count. In

addition, a parole term of three

years and a fine of $2000 were

imposed on Petitioner (R: 519).

On September 8, 1980, Petitioner

filed a Notice of Appeal (R: 469).

On July 19, 1982, the panel affirmed

with opinion. On November 14, 1982,

the panel denied Petitioner's peti-

tion for rehearing and Petitioner's

petition for en banc considera-

tion. See United States v.

Vadino, 680 F.2d 1324 (llth Cir.

1982), rehearing denied

F.2d (llth Cir. 1982).

In late January and early

February, 1979, Government agents

posed as undercover purchasers of

cocaine and methaqualone (TR: 286-

289). On January 31, 1979, they

received samples of cocaine and metha-

qualone from Petitioner and his co-

defendants in the Bahia Mar Hotel

(TR: 295-305, 400).

On February 8, 1979, at 11:30

A.M., agents of the Drug Enforcement

Administration arrested Petitioner,

and co-defendants Natale, Vadino,

Comensana and D'Amato, at a house on

Jack Rabbit Lane, in Hialeah,

Florida. (TR: 351). Seized at this

residence were two kilos of cocaine

and paraphernalia that were intro-

duced into evidence against Peti-

tioner. (TR: 370).

Twenty minutes after the arrest,

prior to obtaining a search warrant,

(TR: 373), the agents intercepted a

phone call from Wendy Stephens to

Petitioner. (TR: 399). When she

asked to speak to her husband, Ivan

Stephens, the agents asked her to

"bring the stuff over" (TR: 399,

631-634). The affidavit states that

she said that Reuben was present.

(R: 262-278).

The agents proceeded to the house

that Mrs. Stephens shared with Peti-

tioner at Milk Wagon Lane (SR: 45).

They went there because they sus-

pected that drugs were on the premi-

ses and they wanted to secure them.

(SR: 46). This house was asserted to

be a five-minute walk from the house

at Jack Rabbit Lane. (R: 262-278).

The agents did not have a search

warrant at this time. A search war-

rant was obtained to search the Milk

Lane house at 4:00 p.m., several

hours after the agents first entered

the premises .2/

The agents remained at Milk Wagon

Lane until 10:00 p.m. (TR: 986, 988,

1005). In that time, they received

and recorded several calls from Elio

Perez-Herrera (TR: 986, 988, 1005).

They also initiated and recorded out-

going calls to Perez-Herrera (TR:

950, 953, 986, 988, 1005). Several

of these calls were recorded (TR:

950, 953, 978), and the substance of

the unrecorded call was introduced

into evidence.

i/ The warrant was not obtained

several minutes later, as suggested

by the panel opinion. Sl.op. at 2026.

The warrant authorizing entry

into the Milk Wagon Lane address did

not authorize the interception of

phone calls, or the use of the phones

to make outgoing calls (R: 262-278).

(App. 40). Although there was exten-

sive wiretapping of co-defendants

Vadino and Natale (TR: 477, 485-488,

524), no conversations of Petitioner

were recorded during the entire

investigation.

The Perez-Herrera tapes them-

selves also heavily inculpated the

Petitioner. The Government concedes

that there was insufficient evidence

independent of the tapes themselves

to satisfy the requirements of the co-

conspirator's exception to the hear-

say rule. See, Fed.Rule Ev. Rule

801(D)(2)(E).

The trial judge admitted the

recordings of Perez-Herrera because

the agents, as parties to the conver-

sations, consented to their recording

(TR: 871-872). It is from these

rulings that Petitioner filed his

appeal.

The Government conceded that the

Perez~Herrera and Wendy Stephens con-

versations were inadmissible hearsay.

However, the Eleventh Circuit held

that Stephens was “nailed” by “over-

whelming independent evidence."

Thus, the panel held that error was

harmless beyond a reasonable doubt.

During the trial, the court

refused to allow voir dire of the pro-

spective jurors as to whether they

could follow an instruction not to

give greater weight to the testimony

of law enforcement officers. (TR:

86-88). The panel concluded, that

the trial court did not abuse its dis-

cretion, and cited binding rulings of

the former Fifth Circuit.

ARGUMENT

I

THIS COURT SHOULD GRANT A

WRIT OF CERTIORARI, TO

RESOLVE THE SPLIT IN THE

CIRCUITS AS TO WHETHER THE

TRIAL COURT ABUSES ITS DIS-

CRETION DURING VOIR

DIRE, WHEN THE COURT

TO QUESTION THE PRO-

SPECTIVE JURORS AS TO

‘WHETHER THEY WOULD TEND TO

BELIEVE OR ACCEPT A LAW

ENFORCEMENT OFFICER'S TESTI-

MONY OVER THAT OF AN ORDI-

NARY PERSON, MERELY BECAUSE

THE WITNESS IS A LAW

ENFORCEMENT OFFICER,

During voir dire, the trial

court refused the Petitioner's

request to question the prospective

jurors concerning the weight that the

jurors would give to the testimony of

a law enforcement officer, as opposed

to an ordinary citizen's testimony.

(TR: 86-88).

The Petitioner proffered two spe-

cific questions:

"(W)hether or not the jury

would follow instructions

that the testimony of the

law enforcement officer is

to be given no greater loss

or weight than any other

witness" (TR: 86).

"Whether ... (the prospec-

tive jurors) ... would lend

any more credence to a

Government witness, be it

agent, or allegedly clothed

by the United States cloak,

so to speak, whether or not

they would because of that

fact alone, they would lend

more credence to testimony.

(TR: 88).

The court denied both requests

(TR: 87, 89).

The court instructed the jury,

after the panel had taken the oath of

office that:

In “considering the weight

and value of the testimony

of any witness, you may

-10-

take into consideration"

e+e the ... “relation of

the witness to the Govern-

ment" (TR: 1111-1112).

In the court's final charge, the

court instructed the jury that:

"In weighing the testimony

of a witness, you should

consider his relationship

to the Government or the

defendant ..." (TR: 1428).

The Appellate court recognized

that Stephens potentially suffered

prejudice from the court's refusal to

voir dire the jury with respect

to the weight that the jurors would

give to the testimony of law enforce-

ment agents. United States v.

Vadino, 680 F.2d 1329, 1336 (llth

Cir. 1982).

A substantial amount of the evi-

dence against Stephens came from law

enforcement agents. Although conver-

sations involving Natale and Vadino

were intercepted and recorded, there

were no recordings involving Ivan

Stephens.

The District Court possesses

broad discretion in the conduct of

the voir dire examination.

Aldridge v. United States, 283 U.S.

308, 310 (1931); Spells v. United

States, 263 F.2d 609, 612 (Sth Cir.

1958). The District Court's discre-

tion is limited only by the "essen-

tial demands of fairness." Aldridge

v. United States, 283 U.S. at 310.

Rule 24 of the Federal Rules of

Criminal Procedure effectuates the

Sixth Amendment guarantee to a fair

and impartial jury. The question, of

whether Rule 24(a) recuires voir

dire examination with respect to

the weight and credibility of law

enforcement officers, has divided the

Federal Circuit Courts of Appeal.

The First, Fourth, Fifth, Eighth,

and Eleventh Circuits share the view

tiiat the trial judge's refusal to per-

mit voir dire examination with

respect to the weight and credibility

given to a law enforcement officer's

testimony does not constitute an

abuse of discretion. See, Gorin

v. United States, 31. F.2d 641 (lst

Cir. 1963); United States v. Gore,

435 F.2d 1110 (4th Cir. 1970);

United States v. Gassaway, 456 F.2d

624, 626 (Sth Cir. 1972); United

States v. Vadino, supra; Ross v.

United States, 347 F.2d 97 (8th Cir.

1967).

The District of Columbia,

Seventh, Ninth, and Tenth Circuits

have held that where a police offi-

cer's testimony comprises virtually

all of the Government's case, the

District Court abuses its discretion

when it refuses to conduct such an

examination. See, Sellers vy.

United States, 271 F.2d 475 (D.C.

Cir. 1959); Brown v. United States,

338 F.2d 543 (D.C. Cir. 1964);

United States v. Martin, 507 F.2d

428 (7th Cir. 1974); United States

v. Baldwin, 607 F.2d 1295 (9th Cir.

1979); Chavez v. United States, 258

F.2d 816, 819 (10th Cir. 1958) (dic-

tum); United States v. Brewer, 427

F.2d 409, 410 (10th Cir. 1970).

The Circuits have divided 5-4 on

this question. It seems unlikely

that this schism will be narrowed by

anything other than a definitive

ruling by the Supreme Court. See,

Supreme Court Rules, Rule 17.1(A).

Moreover, such a voir dire as

requested herein, is necessary to

-14-

ensure the “essential demands of fair-

ness."

"The sole purpose of voir

dire is not to tell poten-

tial jurors tht they are to

be fair and then ask them

if they think they can be

impartial. The defendant's

proposed questions were

meant to elicit specific

attitudes and prejudices.

We cannot assume that a

juror would state that he

could not be impartial

merely because he had a

close relationship with the

government or a high regard

for the credibility of

government agents. Such

questions should have been

asked directly." United

States v. Martin, supra,

F. at es .

"...(W)hen important testi-

mony is anticipated from

certain categories of wit-

nesses, whose official or

semi-official status is

such that a juror might

reasonably be more or less

inclined to credit their

testimony, a query as to

whether a juror would have

such an inclination is not

only appropriate but should

be given if requested."

Brown v. United States,

supra,

This Court should grant certio-

rari to resolve the conflict between

the Circuits.

II

THIS COURT SHOULD GRANT CER-

TIORARI TO RESOLVE THE QUES-

TION OF WHETHER AGENTS VIO-

LATED PETITIONER'S FOURTH

AMENDMENT RIGHTS WHEN THE

AGENTS ANSWERED PETI-

TIONER'S PHONES AND USED

HIS PHONES TO MAKE OUTGOING

TELEPHONE CALLS, DURING A

LAWFUL SEARCH PURSUANT TO A

SEARCH WARRANT, WHEN THE

SEARCH WARRANT DID NOT

DIRECTLY OR IMPLIEDLY AUTHO-

RIZE THE USE OF PETI-

TIONER'S PHONES.

Resolution of this issue would

provide substantial guidance to the

Circuits. As in all Fourth Amendment

cases, a substantial tension exists

between the right of government

agents to conduct investigations i..to

criminal activity, and the right to

privacy possessed by persons who are

-16-

subjected to governmental intrusions

as a result of those investigations.

On several occasions, this Court

has emphasized that there are limita-

tions to the scope of search war-

rants. See, Walter v. United

States, 100 S.Ct. 2395, 2401, n.6

(1980), Marron v. United States,

275 U.S. 192 (1927). The Supreme

Court has previously upheld the expec-

tation of privacy of arrested persons

against warrantless searches of the

person's lawfully seized effects.

See, Arkansas v. Sanders, 99

S.Ct. 2586 (1979); United States v.

Chadwick, 433 U.S. 1 (1977).

The present case offers an oppor-

tunity to re-affirm the expectation

of privacy possessed by an arrested

person that police agents, who law-

fully enter the arrested person's

o17J<

residence, will not exceed the scope

of the search warrant that authorizes

their entry.

This question will present sub-

stantial guidance to the Circuits.

Factual settings have arisen in

several other cases, in which police

agents have remained on an indivi-

dual's premises and used and answered

that person's telephones. See

generally, United States v.

Killian, 524 F.2d 1268 (5th Cir.

1975) (Fourth Amendment question did

not arise, but similar fact setting);

United States v. Kane, 450 F.2d 77

(Sth Cir. 1971); United States v.

Campagnuolo, 592 F.2d 852, 863, n.14

(Sth Cir. 1979); United States v.

Figueroa, et. al., llth Cir. No.

82-5699 (No opinion, appeal pending,

Fourth Amendment question did not

arise, but similar factual setting).

Thus, this question is becoming

increasingly significant in the Cir-

cuits. Moreover, this question pre-

sents an opportunity to define the

parameters of permissible intrusions

pursuant to search warrants. Thus,

this case has substantial importance

beyond the factual setting of the pre-

sent case.

Petitioner was an aggrieved per-

son within the meaning of the Fourth

Amendment. The conversations

occurred on premises over which he

exercised dominion and control. (TR:

1084-1085, 951). Thus, the Peti-

tioner possessed an expectation of

privacy over all conversations occur-

ring on those premises. See,

Alderman v. United States, 394 U.S.

166, 179, n.1ll (1969).

-19-

The agent's use of Petitioner's

telephones, to accept incoming tele-

phone calls, and to make outgoing

telephone calls, exceeded the scope

of the search warrant. Thus, the

search offended Fourth Amendment stan-

dards .2/

On February 8, 1979, at 12 p.m.,

Petitioner was arrested at Jack

Rabbit Lane (TR: 338-339). The

2/ The United States Court of

Appeals for the Eleventh Circuit did

not address this question. The Court

has twice been faced with this issue.

In United States v. Campagnuolo,

592 F.2d 852 (5th Cir. CLL the

court addressed 18 U.S.C. 2510 et

seq., Title III, Omnibus Crime and

Safe Streets Act. In the present

case, the court held the error to be

harmless. United States v. Vadino,

680 F.2d 1329 (lith Cir. 1962), re-

hearing denied, 691 F.2d 977 (llth

Cir. ie - The question of harmless

error is addressed in Section III,

relating to a violation of the

Confrontation Clause.

agents received a call from Wendy

Stephens. (TR: 399). The agents pro-

ceeded to Milk Wagon Lane.

At Milk Wagon Lane, the agents

arrested Wendy Stephens. They waited

at the house to secure the premises,

and to «btain a search warrant. At

4:00 p.m., the magistrate signed the

search warrant. (TR: 1030-1034).

The agents remained in the house

until 10 p.m. (TR: 951). In the ten

hours that the agents remained on the

premises, they made and received six

incoming and outgoing telephone

calls. (TR: 936, 950, 953, 979, 986,

988). Several of these calls were

recorded. (TR: 878, 950, 953). The

substance of the unrecorded call was

introduced into evidence. Each of

the challenged conversations involved

DEA agents and Elio Perez-Herrera.

-2l1-

Petitioner's counsel objected to

the introduction of the recordings.

(TR: 840-841). The trial judge admit-

ted the recordings, because the

agents, as parties to the conversa-

tions, consented to the recording of

the calls. (TR: 871-872).

The Eleventh Circuit did not

address the Fourth Amendment issue,

and held that any error was harmless

error2/, See, United States

v. Vadino, supra, 680 F.2d at 1334-

1335 (llth Cir. 1982). The court

held that Petitioner's objection to

3/ The Perez-Herrera tapes con-

stituted the fruits of the alleged

Fourth Amendment violation. The same

tapes constituted extra-judicial

hearsay. See, Issue III, infra.

The discussion in Issue III of

whether those tapes constitued harm-

less error applies equally to this

issue. See, Chambers v. Maroney,

399 U.S. 42 (1970).

-22-

the first incoming call from Perez-

Herrera was waived at the time of

trial. United States v. Vadino,

supra, 680 F.2d at 1335. Appellant

objected to the remaining calls.

Two outgoing calls were made from

the Miami DEA office. (TR: 1005,

1015). These calls were the fruits

of the eariier conversations. The

agents developed a degree of trust

with Perez-Herrera, based upon the

use of Stephens' telephones (TR:

951). Petitioner also objected to

the introduction of these calls.

The warrant clause of the Fourth

Amendment provides that:

“No warrant shall issue,

but upon probable cause,

supported by oath or affir-

mation, and particularl

describin the lace to ex

hed and the rsons or

searcl pe

things to e seized"

tonpieste added). U.S.

Const. Amend. IV.

"At the core of the Fourth Amend-

ment ... is the fundamental concept

that any governmental intrusion into

an individual's home or expectation

of privacy must be strictly circum-

scribed." Payton v. New York, 100

§.Ct. 1371, 1378 (1980); Zurcher v.

Stanford Daily News, 436 U.S. 547

(1978); Stanford v. Texas, 379 U.S.

476 (1965). The purpose of the parti-

cularity requirement is to protect

the person whose premises are subject

to the warrant from the rummaging of

searchers into all of his effects.

Zurcher, supra; Walter v. United

States, 100 S.Ct. 2395, 2401, n.6

(1980).

The fact that agents are lawfully

on the premises, or obtain lawful pos-

session of effects, does not autho-

rize them to exceed the scope of that

-24-

authorization. Coolidge v. New Hamp-

shire, 403 U.S. 481, n.26 (1971).

Despite the lawful presence of the

agents, the owner maintains a reason-

able expectation of privacy. Michi-

gan v. Tyler, 436 U.S. 499 (1978);

Ybarra v. Illinois, 100 S.Ct. 338

(1979). Further intrusions require

judicial authorization of those intru-

sions. United States v. Chadwick,

infra; Arkans v. Sanders, 99

S.Ct. 2586 (1979).

The Fifth Circuit has held that

agents lawfully on the premises of a

bookmaking operation may answer the

telephones. United States v. Kane,

450 F.2d 77 (5th Cir. 1971). There

is a sufficient nexus between a book-

making operation and the telephones

because the telephones are the very

means by which a bookmaking operation

is carried out. Id. at 85; United

States v. Mendoza, 473 F.2d 692,

697, n.2 (Sth Cir. 1971); United

States v. Various Gambling Machines,

478 F.2d 1194 (5th Cir. 1972). It

would strain reason to suggest that

the telephone is an inherent instru-

mentality of a narcotics offense.

"When an official search is pro-

perly authorized - whether by consent

or by the issuance of a valid warrant

- the scope of the warrant is limited

by the terms of its authorization."

Walter v. United States, 100 S.Ct.

at 2401. An item cannot be seized

under a warrant describing another

item. Marron v. United States, 275

U.S. 192 (1927).

Just as watches cannot be seized

under a warrant authorizing the

seizure of binoculars, United States

v. Dzialak, 441 F.2d 212 (2d Cir.

1971), and letters may not be seized

under a warrant authorizing the

seizure of narcotics, United States

v. Hill, 263 F.2d 812 (D. Ohio,

1920), telephone calls are not sub-

ject to seizure under a warrant autho-

rizing the seizure of narcotics and

its instrumentalities.

Because the use of Petitioner's

phone was not within the permissible

scope of the warrant, the intercep-

tion of the calls would be permis-

sible under the Fourth Amendment

only if the interception fell within

an exception to the warrant require-

ment. United States v. Kane,

supra.

One of the exceptions to the war-

rant requirement is that a party to

the conversation acting under “the

=37-

color of law" may consent to the

interception. 18 U.S.C. s. 2511(d)

(2); United States v. Mendoza, 574

F.2d 1373, 1377 (5th Cir. 1978).

Where a consensually recorded conver-

sation is not seized “under the color

of law," the conversations and its

fruits must be excluded from evi-

dence. United States v. Turk, 526

F.2d 654, 666 (5th Cir. 1976).

In United States v.

Campagnuolo, 592 F.2d 852 (5th Cir.

1979), the Fifth Circuit upheld the

right of agents to remain on premises

and consent to recording conversa-

tions in a bookmaking operation.

Id. at 861-863. The court inter-

preted Title III, but expressly

withheld ruling on whether the search

satisfied Fourth Amendment standards.

Id. at 863, n.14.

-28~

In the present case, the agents

did not possess sufficient common

authority to consent to the use of

Petitioner's telephone and to consent

to the recording of the conversa-

tions.

The Supreme Court has emphasized

that:

"Common authority is, of

course, not to be implied

from the mere property

interest a third party has

in the property. The autho-

rity which justifies the

third party consent ...

rests rather on mutual use

of the property by persons

generally having joint

ntrol for t

ao that it ie rease

so tha t is reasonable to

recognize that any of th

p-inhabitan has th

8 rceched romp asis

me states a3

natloci , 4 U.S.

n.7 (¢ 4).

The basis of a consensual inter-

ception is that a party to the conver-

sation assumes the risk that his co-

party will consent to the recording

of his conversations. Ansley v.

Stynchombe, 480 F.2d 437, 441 (5th

Cir. 1973); citing, United States

v. White, 401 U.S. 745, 752 (1971).

An arrested person does not

assume the risk that his property

will be seized and searched absent

judicial authorization. United

States v. Chadwick, 433 U.S. 1

(1977), (supra, and its progeny).

He only risks seizure of property

within an area close to his arrest,

under the incident to a lawful arrest

exception to the warrant requirement.

A Government agent, who enters

premises pursuant to a search war-

rant, does not possess sufficient

common authority to satisfy the third-

party consent test. By definition,

the agent is an intruder. “The func-

tion of the warrant is to provide the

property owner with ... reassur(ance)

of the entry's legality." Michigan

- Tyler, supra; United States v.

Chadwick, supra at 9. Thus, the

warrant confers only the right to law-

ful presence for the purpose of con-

ducting the described search.

Lawful presence has never been

interpreted to satisfy the joint con-

trol test. See, Stoner v. Califor-

nia, 376 U.S. 483 (1964); Chapman

v. United States, 365 U.S. 610

(1961); United States v. Harris,

534 F.2d 95, 97 (7th Cir. 1976).

Joint control requires that there be

a mutual occupancy, such that the

owner assumes the risk that his joint

-31-

occupant would “allow someone else to

look inside." United States v.

Matlock, supra at 171, citing

Frazier v. Cupp, 394 U.S. 731, 740

(1969).

Because the agents were not pos-

sessed with joint access or control,

the use of Petitioner's phones, and

the interception of Perez-Herrera's

conversations, were unreasonable.

Thus, this search did not fall within

a recognized exception to the warrant

requirement. This Court should grant

certiorari to resolve this important

question.

Iil

THIS COURT SHOULD GRANT CER-

TIORARI TO DETERMINE

WHETHER SUBSTANTIALLY INCUL~

PATORY TAPE RECORDINGS CON~-

STITUTZ VIOLATIONS OF THE

CONFRONTATION CLAUSE, AND

CONSTITUTE HARMLESS ERROR, .

WHEN SUCH TAPES ARE NOT CO-

CONSPIRATOR'S DECLARATIONS,

AND LIVE WITNESS TESTIMONY

CONSTITUTES THE SUBSTANTIAL

EVIDENCE AGAINST THE DEFEN-

DANT.

This case presents a unique oppor-

tunity to analyze the relationship

between the Confrontation Clause and

the hearsay rule. In Dutton v.

Evans, 400 U.S. 74 (1970), a plura-

lity of this Court emphasized that

the hearsay rule, and the Confronta-

tion Clause, are not co-oxtensive.

In the case at bar, the Government

conceded that the hearsay rule was

violated, See, United States v.

Vadino, supra, 680 F.2d at 1333-.

1334, but claimed that the Confronta-

tion Clause was not violated. In

rejecting the Petitioner's applica-

tion for rehearing, the Court applied

the Constitutional Standard for harm-

less error. United States v.

Vadino, supra, 691 F.2d at 978.

This case also presents the Court

with the opportunity to determine

standards for the Circuits to employ

in applying the harmless error doc-

trine. To the extent that the Con-

frontation Clause was violated, the

Standard of “harmless error beyond a

reasonable doubt" applies. See,

Chapman v. California, 386 U.S. 18

(1967). The instant factual setting

offers the Court the opportunity to

delineate standards for the applica-

tion of the “harmless error beyond a

reasonable doubt" test.

The objectionable declaratory evi-

dence was the Perez-Herrera tapes.

See, Issue II, infra.4/ The

4/ The same standard for harm-

less error applies in each case.

See, Harrington v. California,

395 u.sS. 250 TLS 6575 Chambers v.

Maroney, 399 U.S. 42 (1970);

Chapman v. California, supra.

-34-

agents proposed a future drug transac-

tion with Perez-Herrera. During this

time, the agents questioned Perez-

Herrera with respect to the narcotics

seized in the present case.

The content of the conversations,

heavily inculpated Stephens. During

the first conversation, Perez-Herrera

"told ... Bumar ... that he was

Ivan's source of supply for drugs,

and told me to have Ivan calling him

up." (TR: 952). Bumar proposed that

Perez-Herrera and Bumar enter into a

future drug transaction. Bumar told

Perez-Herrera that he would contact

Ivan Stephens. (TR: 953).

Bumar returned Perez-Herrera's

call. Bumar told Perez-Herrera that

he would drive to Fort Lauderdale to

speak with Stephens (7R: 960). He

told Perez~Herrera:

-35-

“Ivan showed me some of the

ludes in the house, okay?

Like I said, he had a

bunch, okay? Fine. Now

these people, you know, I'm

sure if I told them, hey we

got a bunch, they can take

it back to New York, no

problem. The thing is,

though, the stuff he showed

me, some of it looked bad,

you know? What's the

story? He said you got

that. How good is the

stuff?"

Perez~-Herrera:

"Well look, I got three

kind man" (TR: 961).

The agent and Perez-Herrera dis-

cussed a prior sale of pills to

Stephens (TR: 961). They discussed

Perez-Herrera's delivery of cocaine

to Stephens (TR: 963-965). They dis-

cussed Stephens' alleged attempt to

procure pills from Perez-Herrera that

very day (TR: 967).

S/A Bumar:

"Didn't he tell you he

needed 10 keys?"

-36-

Perez~-Herrera: :

"No, he told me he needed

half a million ... pills

eee I told him I didn't

have half a million. I

only had a half a...

100,000. I had a million

and a half, but ... ran out

of them." (TR: 967-968).

Perez-Herrera told Bumar to have

Stephens call him (TR: 968-969; 971).

Perez-Herrera also told Bumar that

Stephens would vouch for his credibi-

lity (TR: 969). Perez-Herrera told

the agent that he did "a million busi-

ness" with Stephens (TR: 971). Perez-

Herrera told Bumar that, if Stephens

approved, he would bury Bumar in

pills (TR: 974).

During the next conversation,

Bumar called Perez-Herrera and relied

on a purported conversation between

Stephens and Bumar, in which Stephens

approved the sale of the drugs (TR:

980). Perez~-Herrera told Bumar that

-37-

he preferred to deliver the drugs to

Stephens, “because he is my client"

(TR: 981).

Perez-Herrera told Bumar to “get

Ivan in touch with me or forget about

it" (TR: 985). “Ivan gets in touch

with me. His wife tells me yes,

okay. I make the deal.” (TR: 985,

999). Every tape was inadmissible

under the hearsay rule. United

States v. Vadino, supra, 680 F.2d

at 1334. United States v. Killian,

524 F.2d 1268.

The case against Stephens con-

sisted substantially of the testimony

of the Government agents. At one

point, the trial judge commented, at

side-bar, on an agent's demeanor on

cross-examination. The agent was

trying to be "clever" (TR: 1149).

The Court of Appeals detailed the

independent evidence:

"Stephens had been at one

of the initial meetings

aboard a yacht, where he

delivered to agents samples

of cocaine and Quaaludes.

He described the Quaaludes

as coming from Colombia and

stated that they had an

"excellent supply." Ata

later meeting on the boat

Stephens quoted the price

of cocaine and Quaaludes,

stated the location for

delivery, gave instructions

for getting there, said

that delivery would in in

increments, and stressed

the need for caution. When

the group met at the Jack

Rabbit Lane house for the

delivery, Comesana left at

Stephens' direction and

returned later with a box

containing a kilo of

cocaine, which Stephens

weighed and tested. Later

that day Stephens’ home was

searched, and drugs and

drug paraphernalia found

there. Stephens offered no

evidence in his defense."

In addition, interception of co-

defendants Natale and Vadino, with

the agents, referred to Stephens'

involvement. (TR: 493, 503). The

agents did not intercept any conversa-

tions involving Stephens.

The conversations implicated

Stephens' rights under the Confronta-

tion Clause. U.S. Const. Amendment

vi.

Statements that fall within the

co-conspirator's exception possess

persuasive assurances of reliability.

Thus, the statements do not impli-

cate a defendant's Confrontation

rights. See, Dutton v. Evans,

400 U.S. 74 (1970). However, some

statements that fall outside of the

co-conspirator's exception implicate

a defendant's rights under the Sixth

Amendment Confrontation Clause.

See, Id.; See also, United

States v. Castillo, 615 F.2d 878,

883 (9th Cir. 1980). The Ninth Cir-

cuit adopts the four-part Dutton

test:

"(T)he Dutton test looks

to the following indicia of

reliability: (1) whether

the declaration contains an

assertion of past fact; (2)

whether the declarant had

pekegite knowledge of the

dentity and role of the

participants in the crime;

(3) the possibility that

the declarant is relying

upon faulty recollection;

(4) whether, under the cir-

cumstances, there is reason

to believe the declarant

misrepresented the defen-

dant's involvement." Id.

The Tenth Circuit broadens the

Dutton test. See, United States

v. Roberts, 583 F.2d 1173 (10th Cir.

1978). In Roberts, the court recog-

nized that evidence falling into an

exception to the hearsay rule may

still not comply with the Confronta-

tion Clause. Id. at 1178. The

court's test analyzes:

(1) what opportunity the

jury had to evaluate the

credibility of the decla-

-4l-

rant, (2) whether the state-

ments were crucial to the

government's case or devas-

tating to the defense, (3)

the declarant's knowledge

of the identities and roles

of the other co-conspira-

tors, (4) whether the extra-

judicial statements might

be founded on faulty recol-

lection, (5) whether the

circumstances under which

the statements were made

provide reason to believe

the declarant misrepre-

sented defendant's involve-

ment in the crime, (6)

whether the statements were

ambiguous, (7) what limit-

ing jury instructions, if

any, were given, (8)

whether prosecutorial mis-

eae was present, etc.

Id.

The Dutton test, and the Tenth

Circuit's test, were not satisfied in

the present case. Perez-~-Herrera's

statements against interest carried

no assurances of reliability with res-

pect to Stephens. Perez-Herrera's

interest was in perfecting his own

lucrative drug deal with the agents.

Perez-Herrera had every interest in

representing a close involvement with

Stephens, because the agents were

relying on the cloak of Stephans'

reliability.

Perez-Herrera had little to lose

by lying. If Perez-Herrera was lying

about his past involvement with

Stephens, and the claim was not

uncovered, Perez~-Herrera would have

successfully perfected a “deal” with

the agents. If Perez-Herrera had

claimed that he was not involved with

Stephens, he faced the certain loss

of prospective business, because the

agents were relying on the cloak of

Stephens’ reliability. Although

Perez-Herrera risked losing business

if his story was untrue, and the

untruth was discovered, the risk was

much greater that Perez-Herrera would

lose the business if he said that he

was not involved with Stephens.2/

In this context, violations of

the Confrontation Clause are not harm-

less error.

Perhaps the best evidence of the

impact of evidence is the reliance

that the prosecutor places on the

evidence in closing argument. In the

3/ Perez-Herrera's actions must

examined in the context of a clandes-

tine drug deal. Perez-Herrera's pro-

tection, against retaliation for

lying, was his telephone anonymity.

However, he had to act as a narcotics

dealer, in the same or in a similar

situation, would act. Otherwise, he

risked “pe tedpipeert harm or the loss of

his business when he personally con-

tacted his buyers. There is no doubt

that Perez~-Herrera and Stephens knew

each other. Perez-Herrera's first

call was an incoming call to

Stephens’ house. Moreover, a search

of Stephens‘ trash masher revealed a

slip of paper with the name "Elio" on

it. Although Perez-Herrera wanted

the agents to have Stephens call him,

(fn.cont.)

present case, the prosecutor told the

jury to rely on the tapes, and that

the prior and proposed future course

of dealing between Stephens and Perez~-

Herrera evidenced their participation

in the conspiracy.

"(Perez-Herrara) says in

numerous places on the

tape, as I recall, that he

left pills there before,

and came to pick up his

money; that he has all the

cocaine they could want;

that he has done a million

(fn.cont. )

Perez-Herrera would accomplish his

purposes by the fact of the call,

without discussing narcotics. Because

Stephens and Perez-Herrera knew each

other, the risk of discovery of an

untrue relationship was minimized.

Because Stephens never called Perez-

Herrera, whether they would have dis-

cussed a drug deal is speculative.

However, Perez-Herrera would have

accomplished his objective of appear-

ing to be careful by asking Stephens

if he knew the prospective buyers,

and if they were “good people", with-

out discussing drugs at all. Thus,

the reliability of Perez-Herrera's

statements was minimal.

-45-

business with Ivan before;

that he has left pills

there; engaged in drug

deals with the defendant

Stephens on numerous occa-

sions." (TR: 1324).

aL emp

° would ask

you please, to listen very

carefuliy to the conversa-

tions, because there are

numerous references, which

I believe during these con-

versations, which I suggest

to you, I should say, which

I suggest to you from those

conversaitons indicate that

the two kilos of cocaine

were given to Edwardo Comen-

sana, delivered to Stephens

through the various links

of conversations between

Natale and Vadino, and

which Anthony Damato knew

the price, and was there.

during delivery; that they

came from the defendant

Elio Perez. Perez says on

the telephone, he says,

yes, words to the effect he

had 500,000. Ivan wanted

500,000. He only had

100,000, gave them to some-

body else. More important,

I ask you to please listen

carefully as to the testi-

mony regarding the fact

that he had 10 keys of

coke, but now two of those

are gone. He has only

eight left." (TR: 1325).

-46-

"I would suggest to you, in

conclusion, to please

listen to the tapes, invol-

ving Mr. Natale, Mr. Vadino

and Mr. Perez; and I sug-

gest to you that the evi-

dence in its totality

proves their guilt with

respect to each count of

the indictment well beyond

a reasonable doubt.”

The erroneous admission of hear-

say cannot be harmless error, if the

hearsay relates to extrinsic criminal

activity, and the prosecutor uses the

hearsay to infer participation in the

current criminal activity. See,

United States v. Webster, 649 F.2d

346 (5th Cir. 1980). In the present

case, the prosecutor asked the jury

to rely on Perez-Herrera's taped

admissions of his alleged prior

dealings with Stephens, and his pro-

posed future dealings with Stephens

and the agents, to infer that Perez

and Stephens were involved in the

charged conspiracy. Thus, the

court's finding of non-reversible

error directly conflicts with

Webster. See, also, United

States v. Truslow, 530 F.2d 257, 264

(4th Cir. 1976).

In light of the fact that the pro-

secutor asked the jury to rely on the

tapes, the tapes contributed substan-

tially to Stephens’ conviction./

"(B)efore a Federal Constitu-

tional error can be held harmless,

the court must be able to declare a

belief that it was harmless beyond a

reasonable doubt." Chapman v. Cali-

fornia, 386 U.S. 18 (1967).2/

&/ Thus, even under the standard

for non-constitutional error, the

jury must have been “substantially

swayed" by the evidence. See,

Kotteakos v. United States, 328

U. . . ( .

y/ This standard applies in

(fn.cont. )

In Harrington v. California,

Supra, the Court held harmless the

admission of a co-defendant's inculpa-

tory confession. The confession was

merely cumulative. The Supreme Court

noted, and the lower court empha-

sized, that Harrington had implicated

himself. Id. See also, People

v. Bosby, 256 Cal.App.2a 209, 217

(1967). (Lower court opinion in

Harrington). When the defendant

incriminates himself, substantially

similar statements of co-defendants

are merely cumulative. See,

(fn.cont.)

cases where extrajudicial declara-

tions, not subject to cross-examina-

tion, are erroneously entered into

evidence. See, Harrington v.

California, 395 U.S. 250 (1969).

This standard also applies in Fourth

Amendment contexts. See, Chambers

v. Maroney, supra.

Schneble v. Florida, 405 U.S. 427,

430-431 (1972); see also, Brown

v. United States, 411 U.S. 223, 225

(1973).

Although there was sufficient

independent evidence of Stephens'

involvement in the conspiracy to sur-

vive a Motion For Judgment of Acquit-

tal, the declarations were not harm-

less beyond a reasonable doubt.

See, United States v. Webster,

649 F.2d 346 (Sth Cir. 1981). The

inculpatory content of the tapes, the

ready use of appellant's name by the

declarant in connection with a pro-

posed future transaction of narco-

tics, the absence of any assurances

of reliability, the prosecutor's

emphasis on the content of the tapes,

and the credibility issue presented

by the absence of any independent

tape recording of Stephens, created a

context in which the admission of the

tapes did not satisfy the harmless

error test.

This Court should grant certio-

rari to consider the interrelation-

ship between the harmless error doct-

rine, the hearsay rule, and the Con-

frontation Clause.

Respectfully submitted,

MAX B. KOGEN, P.A.

Suite 500

700 Brickell Avenue

Miami, Florida 33131

(305) 371-2661

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three

copies of the foregoing were mailed

this day of January, 1983, to the

Office of the Solicitor General, 10th

& Constitution Avenue, N.W.,

Washington, D.C., 20530, and to Joel

M. Gershowitz, Assistant Attorney

General, Office of the United States

Attorney General, Dept. of Justice,

Washington, D.C., 20530, and one copy

was mailed to all counsel listed

below:

Jeffrey M. Miller, Esq.

1325 Spruce Street

Philadelphia, PA 19107

Geoffrey C. Fleck, Esq.

and

William Tunkey, Esq.

Weiner, Robbins, Tunkey &

Ross, P.A.

2250 S.W. 3rd Avenue

Miami, FL

-52-

Lin-Brett Major, Esq.

621 S. Federal Highway

Suite 4

Ft. Lauderdale, FL 33031

Carmen C. Nasuti, Esq.

1325 Spruce Street

Philadelphia, PA 19107

Vincent Flynn, Esq.

1414 Coral Way

Coral Gables, FL

By:

VINCENT FLYNN

Opinion in Court Below.

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Frank J. VADINO, Elio Perez-Herrera,

lvan L. Stephans, Eduardo Comesana,

Ralph Natale, Defendants~Appellants.

No. 80-5716.

United States Court of Appeals,

Eleventh Circuit.

July 19, 19862.

Appeals from the United States Dis-

trict Court for the Southern District

of Florida.

Before GODBOLD, Circuit Judge,

RONEY and WOOD*, Circuit Judges.

* Honorable Harlington Wood, Jr.,

U.S. Circuit Judge for the Seventh

Circuit, sitting by designation.

App-1

GODBOLD, Chief Judge:

Appellants were convicted of nar-

cotics offenses, all appellants of

conepiracy to possesa, 21 U.S.C.

846, and some of possession with

intent to distribute, 21 U.S.C.

B4l(a)(1l). Also, one appellant was

convicted of using a telephone to

facilitate a narcotics offense, 21

U.8.C. 843, and another of carrying

a firearm in commission of a felony,

16 U.8.C. 924(c)(2).

Government informant Allen intro-

duced Drug Enforcement Adminstration

agents to appellants Vadino and

Natale. Thereafter agents partici-

pated in a series of negotiations

with Vadino, Natale, and appellant

Stephans concerning purchase by the

App~-2

agents of 500,000 Quaaludes and 10

kilograms of cocaine. Appellant Come-

Sana was present at one meeting

aboard a boat. The negotiations cul-

minated in a meeting for delvery, at

a house on Jack Rabbit Lane, in Miami

Lakes, Florida. Vadino, Stephans,

and Comesana were present. At

Stephans' direction Comesana left and

returned with one kilo of cocaine,

which Stephans weighed and tested.

No more cocaine, and no Quaaludes,

were brought to the delivery site

before arrests were made.

After arrests were made at the

house and while agents were still

there, Agent Carew answered a tele-

phone call from Stephans' wife. The

agent told her that Stepnars wanted -~’

her to "bring the stuff over." She

App-3

eh eee Oe on am a

replied that she could not because

she had a runner there. Later that

day agents went to the Stephans‘’ home

and entered it. The validity of this

entry is questioned. A few minutes

later a search warrant was issued,

and pursuant to it the agents

searched the house and found cocaine,

Quaaludes, narcotics paraphernalia,

and handwritten notes bearing the

name of appellant Perez-Herrera.

While in the Stephans' house Agent

Bumar answered a telephone call from

Perez~-Herrera, who identified himself

as Stephans' “source of supply for

drugs." That day and the next Bumar

conducted a series of calls to Perez-

Herrera. Tapes of these conversa-

tions were played at trial. Several

of Perez-Herrera's statements, the

jury could have found, related to the

App-4

deal with the government agents. In

the first call Bumar told Perez-Her-

rera he was waiting for Stephans in

order to complete a drug purchase.

Perez-Herrera identified himself as

Stephans' source of supply for drugs

and asked Bumar to have Stephans

return his call. In later calls

Bumar asked if Perez-Herrera had pro-

mised Stephans ten kilos of cocaine,

and Perez-Herrera answered in the

affirmative. Bumar referred to

Stephans “promising us 10 from you",

and Perez-Herrera again answered

affirmatively. Also Perez-Herrera

told Bumar that Stephans had called

him that day and asked for 500,000

Quaaludes that he did not have. He

told Bumar that he was expecting a

| million and a half Quaaludes the next

day. The jury could have found that

App-5

the ten kilos of cocaine and the

Quaaludes just referred to were the

subject of the deal with agents.

A statement by Perez-Herrera offer-

ing to sell Bumar anything he wanted

is not referable to the deal with the

agents. In a call Perez-Herrera

referred to holding 100,000 Quaaludes

for Stephans; possibly the jury could

not relate this to the deal made with

the agents.

At trial Natale and Vadino

asserted the defense of entrapment;

in opening statements their respec-

tive counsel acknowledged that most

of the prosecutor's opening state-

ments describing the relevant events

was correct.

1. The superseding indictment;

grand jury minutes.

The original indictment, returned

App-6

February 20, 1979, charged all appel-

lants except Perez-Herrera with cons-

piracy to possess narcotics. Later,

on April 4, Agent Bumar, who had

talked by phone with Perez-Herrera,

testified before the same grand jury

concerning these conversations. The

grand jury then returned a super-

seding indictment that was the same

as the first indictment except that

it added Perez-Herrera as a defendant

to the conspiracy charge.

Natale, Vadino and Stephans con-

tend that they could not validly be

tried under the superseding indict-

ment because it was supported by only

evidence against Perez-Herrera and no

evdience against them. In effect

this argument is that, as a basis for

the superseding indictment, the

App-7

government was required to re-present

to the same grand jury the same

evidence that the grand jury pre-

viously had heard, otherwise there

was no evidence that these appellants

were participating in the same cons-

piracy with Perez-Herrera. No autho-

rity is cited for this proposition,

and we perceive no basis for holding

that the grand jury must be told a

second time what it already had been

told.

In a variation of the same theme,

these three appellants urge that they

were prejudiced because adding Perez-

Herrera as a defendant enabled the

government to introduce at trial,

over objections, Perez-Herrera's

statements to Agent Bumar, which

opened up a broader scope of activi-

ties in the penumbra of which they

App-8

did not participate. But if the

superseding indictment was valid -

and we hold it was - to the extent

Perez-Herrera's testimony was rele-

vant to the conspiracy that it

charged, the testimony was admis-

sible. It was “prejudicial” in only

the sense that it was probative of

guilt.

Natale and Vadino argue that as a

matter of law the evidence showed

there were several conspiracies

rather than a single conspiracy.

This contention is frivolous. Alter-

natively they say that the jury could

have found several conspiracies

rather than one but was not instruc-

ted on this issue. Pretermitting

whether such an instruction would

have been appropriate, Natale and

Vadino did not request it.

App-9

II. Admissibility of co-

conspirator's statements.

(A) Statements of Perez-Herrera

‘ Natale, Vadino and Stephans con-

tend that as to them Perez-Herrera's

telephone statements to Bumar were

inadmissible hearsay that do not

qualify for the co-conspirator's

exception of F.R.Ev. 801(d)(2)(E)

because there was insufficient evi-

dence to link Perez-Herrera to the

conspiracy and also that when his

statements were made the conspiracy

had termianted by the arrest of all

the conspirators known to the agents.

The government concedes that it did

not meet the requirements of U.S. v.

James, 590 F.2d 575 (5th Cir.),

cert. denied 442 U.S. 917, 99

S.Ct. 2836, 61 L.Ed.2d 283 (1979)

with respect to these statements.

App-10

This point means little with res-

pect to Natale and Vadino. Their

assertion of the defense of entrap-

ment constituted an admission that

they committed acts constituting the

offenses charged. See U.S. v.

Brooks, 611 F.2d 614 (5th Cir.

1980); U.S. v. Greenfield, 554 F.2d

179 (Sth Cige. 1977)3 DU.8. ¥.

Morrow, 537 F.2d 120, 138-139 (5th

Cir. 1976) .2/ The testimony of

1/ One count on which Natale and

Vadino were convicted charges conspi-

racy under some circumstances a

defendant charged with conspiracy may

plead entrapment and thereby admit

overt acts but deny intent to engage

in conspiracy. U.S. v. Greenfield,

Supra. This exception to the

general rule has no application here

where respective counsel for Natale

and Vadino told the jury in opening

statements that the prosecutor's

description of the conspiracy was

substantially correct.

App-11

Perez-Herrera did not relate at all

to the entrapment defense.

With respect to Stephans,

admission of Perez-Herrera's

statements was not reversible error.

Stephans' participation in the

conspiracy was established by

overwhelming evidence independent of

the Perez-Herrera statements.

Stephans had been at one of the

initial meetings aboard a yacht,

where he delivered to agents samples

of cocaine and Quaaludes. He

described the Quaaludes as coming

from Colombia and stated that they

had an “excellent supply.” Ata

later meeting on the boat Stephans

quoted the price of cocaine and

Quaaludes, stated the location for

delivery, gave instructions for get-

ting there, said that delivery would

App-12

be in increments, and stressed the

need for caution. When the group met

at the Jack Rabbit Lane house for the

delivery, Comesana left at Stephans'

direction and returned later with a

box containing a kilo of cocaine,

which Stephans weighed and tested.

Later that day Stephans' home was

searched, and drugs and drug parapher-

nalia found there. Stephans offered

no evidence in his defense. If admit-

ting Perez-Herrera's telephone conver-

sation was error, it was not

reversible. Stephans was nailed

without this evidence.

(B) Statements by Natale,

Vadino and Stephans

On James grounds Comesana ques-

tions the admission against him of

out-of-court statements by Natale,

Vadino and Stephans relating to his

App-13

role in the activities. Pretermit-

ting whether there was sufficient

independent evidence to connect Come~-

sana to the conspiracy when the tesit-

mony was admitted, there was adequate

independent evidence before the end

of the trial. When agents met on the

boat for the first time with Vadino

and Stephans, Comesana was also pre-

sent. When an agent objected to Come-

sana's presence Vadino and Stephans

explained that he was a karate expert

and an expert marksman and was

"Stephans' man" and was present for

protection. These statements were in

furtherance of the conspiracy - they

were made to win acceptance by the

agents of Comesana's presence and to

explain his role in the conspiracy

and his qualifications for it. There

was other evidence that Comesana was

App~-14

present at the Jack Rabbit Lane house

where the delivery was to take place.

At Stephans' direction Comesana left

the house and returned shortly there-

after with a kilo of cocaine, which

Stephans weighed and tested.

Under James it is enough that

proper foundation was laid by the end

of the trial.

Admission of the statements of

Natale, Vadino and Stephans did not

violate the confrontation clause of

the Constitution. The statements pos-

sessed “indicia of reliability" -

they were spontaneous and supported

by other evidence.

III. Entry into and search of

Stephans' home.

When agents went to the Stephans'

home, Mrs. Stephans answered their

knock. The district court did not

App-15

err in finding that she voluntarily

consented to their entering.

At approximately the same time

other agents were obtaining a search

warrant for the Stephans' house.

After it was issued agents who had

been waiting at the house searched

the house and seized narcotics and

drug paraphernalia on the authority

of the warrant. The affidavit sup-

porting the search warrant suffi-

ciently established probable cause.

IV. Telephone calls to and from

the two houses.

Stephans contends that agents vio-

lated Title III of the Omnibus Crime

and Safe Streets Act, 18 U.S.C.

2510 et seq., and the Fourth Amend-

ment, by receiving and making tele-

phone calls on telephones at the Jack

App~16

Rabbit Lane house and at his home on

Milk Wagon Lane.

With respect to the Jack Rabbit

Lane house, Stephans contends that

items later seized at his home pur-

suant to the search warrant should

have been suppressed because they

were the fruits of Agent Carew's

answering the phone at the Jack

Rabbit Lane house and receiving the

call from Stephans' wife. Assuming

arguendo that this issue was properly

raisea2/ we perceive no privacy

interest of Stephans that was vio-

lated under Fourth Amendment stan-

dards. Stephans was not a party to

2/ Stephans did not before or at

trial move to suppress Carew's con-

versation with Mrs. Stephans, as

a by F.R.Crim.P. 12(b)(3) &

(f).

App-17

the conversation with Carew. When

Carew answered the ringing phone the

caller identified herself as

Stephans' wife and freely talked to

Carew. The record does not reveal

that Stephans had such ownership or

control of the Jack Rabbit Lane

houseas might arguably give him

standing to object to Carew's

answering the telephone.

Even if the Jack Rabbit Lane

house was under Stephans' dominion

and control - which was not satisfac-

torily established - Title III does

not bar Bumar, an officer lawfully on

the premises, from answering the ring-

ing telephone. U.S. v. Campag-

nuolo, 592 F.2d 852 (5th Cir. 1979).

With respect to the Milk Wagon

Lane house, Stephans conceded at

trial that he did not question the

App-18

validity of Agent Bumar's receiving

the first incoming call from Perez-

Herrera. Several calls were later

made by Bumar to Perez-~-Herrera and

were recorded. It appears that two

of them originated from the Miami DEA

office. The origin of the remaining

four is not entirely clear, but

assuming they originated at (and were

recorded from) the Milk Wagon Lane

house, we have already held in part

II(A) that admission of Perez-Her-

rera's statements was not reversible

error with respect to Stehans because

his guilt was established by overwhel-

ming independent evidence.

V. Severance.

Stephans, Comesana, and Perez~Her-

rera contend they were entitled to

severance because the entrapment

defense offered by Natale and Vadino

App~-19

was antagonistic and mutually exclu-

sive to their defense. A co-defen-

dant's reliance on entrapment does

not of itself justify reversing a

refusal to sever but rather the defen-

ses must be antagonistic to the point

of being mutually exclusive. U.S.

v. Salomon, 609 F.2d 1172, 1173 (5th

Cir. 1980).

The assertion by Natale and

Vadino of their entrapment defense

was not of itself mutually exclusive

or irreconcilable with defenses by

other defendants. The other defen-

dants do not contend that Natale or

Vadino offered evidence tending to

incriminate them. Assertion of an

entrapment defense may tend to

bolster the credibility of proseciton

witnesses, a point made by Perez-Her-

rera, but this is not enough to

App-20

require severance, especially when

the government's evidence is essen-

tially uncontradicted. See,

e.g., U.S. v. Eastwood, 489 F.2d

818, 821-22 (Sth Cir. 1973); U.S. v.

Russo, 455 F.2d 1225 (5th Cir.)

cert. denied, 409 U.S. 846, 93

S.Ct. 49, 34 L.Ed.2d 86 (1972).

Nor were the other defendants

entitled to severance because in open-

ing statements counsel for Natale and

Vadino admitted that most of the mat-

ters said by the prosecution in its

opening statement were correct. Coun-

sel for Natale and Vadino qualified

their statements as being applicable

to only their respective clients.

The court instructed the jury that

they should consider the case of each

defendant separately.

App-21

The denial of severance did not

violate the Sixth Amendment rights of

other defendants under Bruton v.

U.S., 391 U.S. 123, 88 S.Ct. 1620,

20 L.Ed.2d 476 (1968) and DeLuna v.

U.S., 308 F.2d 140 (5th Cir. 1962).

The concessions stated by counsel for

Natale and Vadino were not the equiva-

lent of co-defendants’ statements sub-

ject to Bruton, and indeed, the

court instructed that they were not

evidence at all. DeLuna concerns

severance where a defendant has a

need to comment on the silence of a

co-defendant, but the defenses of the

two must be truly antagonistic rather

than merely inconsistent.

Perez-Herrera was not, for reasons

peculiar to him, misjoined under Cri-

minal Rule 8(b) and 14, and the court

did not err in denying him a sever-

App-22

ance. The evidence with respect to

him, discussed below in Part IV, per-

mitted the jury to infer that he was

the supplier of the cocaine and the

Quaaludes to be delivered to the

agents in the sale and delivery in

which the other conspirators were

directly participating.

Iv. Sufficiency of the evidence.

The court did not err in denying

Perez-Herrera's motions for judgment

of acquittal. The stong evidence

against him was the taped conversa-

tions between him and Agent Bumar.

We have described in the first part

of this opinion the content of the

calls and the parts that tie jury

could have found were the subject of

the deal with the agents. This evi-

dence was sufficient to submit the

case to the jury. Moreover, the hand-

App-23

written notes found in the trash com-

pactor at the Stephans' home tied

Perez-Herrera to Stephans. One said

"Ellio (at home). Good news [with a

line drawn through these two words]"

Elio is Perez-Herrera's first name.

The other said "Ellio in!! [under-

lined five times]." One note indi-

cated that Perez~-Herrera had called

twice.

VII. Evidence of extrinsic

offenses by Perez-Herrera

Perez-Herrera objected to admis-

sion of the portions of his telephone

conversations with Bumar relating to

future drug transactions. This evi-

dence was admissible under F.R.Evid.

404(b) and 403. Perez-Herrera's

stated willingness to do business

with Bumar in the future bolstered

Perez-Herrera's statement that he was

App-24

indeed a “source of supply", which he

had identified himself as being.

Assuming that Perez-Herrera's

objections were sufficient to reach

the parts of the tapes that related

to transactions, present and past and

other than the deal with the agents,

admitting these portions was not

reversible error. Possibly the jury

could not find that the reference to

holding 100,000 Quaaludes for

Stephans was related to Stephans'

order for 500,000 Quaaludes, but in

the context of the order for 500,000,

and of Perez-Herrera's statement that

he was expecting a million and a half

Quaaludes the next day, the reference

to a separate deal with Stephans for

100,000 Quaaludes is of minimal signi-

ficance.

App-25

VIII. Voir dire of jury.

All appellants except Comesana

urge as error the refusal of the

court to permit questioning of pros-

pective jurors concerning the weight

to be given a law enforcement offi-

cer's testimony, merely because he is

a law enforcement officer, as opposed

to the testimony of an ordinary citi-

zen. Such questioning would have

been of little consequence except to

Stephans. Natale and Vadino were

asserting that they were entrapped by

the non-officer informer Allen, who

set them up with government agents.

The case against Perez-Herrera depen-

ded largely on the tapes of his tele-

phone conversations with Bumar. In

any event, we are bound by the rule

App-26

of the former Fifth Circuit?’ in

U.S. v. Jackson, 448 F.2d 539, 542-

43 (Sth Cir.) cert. denied 404

U.S. 1063, 92 S.Ct. 750, 30 L.Ed.2d

752 (1972), and U.S. v. Gassaway,

456 F.2d 624, 626 (5th Cir. 1972),

that such a refusal is not an abuse

of discretion. Other circuits

agree. 4/

IX. Instructions to jury on

entrapment.

The jury instruction on entrap-

ment is set out in the margin.2/

3/ Bonner v. City of Prichard,

661 F.2d 1206 (lith Cir. 1981)(en

banc)(all Fifth Circuit cases decided

before close of business September

30, 1981 binding on Eleventh

Circuit).

4/ Gorin v. U.S., 313 F.2d 641

(lst Cir. 1963); U.S. v. Gore, 435

F.2d 1110 (4th Cir. 1970); Ross v.

U.S., 374 F.2d 97 (8th Cir. 1967).

3/ Certain defendants assert

(fn.cont. )

App-27

Natale and Vadino objected and asked

the court to instruct that the burden

of proving that they were not

entrapped was on the government.

The paragraph beginning "if, then,

the jury should find ..." says, para-

phrasing, that if the jury finds

(fn.cont. )

that they were victims of entrapment

as to the offense charged in the

indictment.

Where a person has no previous intent

or purpose to violate the law, but is

induced or persuaded by law enforce-

ment officers or their agents, or

informants, to commit a crime, he is

a victim of entrapment, and the law

as a matter of policy forbids his

conviction in such a case.

On the other hand, where a person

already has the readiness and wil-

lingness to break the law, the mere

fact that Government agents provide

what appears to be a favorable oppor-

tunity is not entrapment.

For example, it is not entrapment for

a Government agent to pretend to be

someone else, and to offer, either

directly or through an informer, or

other decoy, to engage in an unlawful

transaction.

(fn.cont. )

App-28

beyond reasonable doubt that defen-

dants were predisposed and that

governmental participation was no

more than the offer of an opportu-

nity, then defendants were not

entrapped. The next paragraph says,

(fn.cont. )

If, then, the jury should find beyond

a reasonable doubt from the evidence

in the case that, before anything at

all occurred respecting the alleged

offense involved in this case, the

defendant was ready and willing to

commit a crime such as charged in the

indictment, whenever opportunity was

afforded, and that Government offi-

cers or their agents did no more than

offer the opportunity, then the jury

should find that the defendant is not

a victim of entrapment.

On the other hand, if the evidence in

the case should leave you with a

reasonable doubt whether the defen-

dant had the previous intent or pur-

pose to commit an offense of htre

character charged, apart from the

inducement or persuasion of some

officer or agent of the Government,

then it is your duty to find him not

guilty.

App-29

paraphrasing, that if the evidence

leaves the jury with reasonable doubt

whether defendants were predisposed,

then they are to be found not guilty.

Defendants rely upon U.S. v.

Wolffs, 594 F.2d 77 (5th Cir. 1979),

in which the court reversed fora

faulty charge on entrapment. In the

Wolffs entrapment instruction, how-

ever, the court mentioned neither the

reasonable doubt quantum of proof nor

the party who bore that burden. In

this case the court twice referred to

the reasonable quantum of proof of

predisposition but did not, within

the entrapment instruction, refer to

the party having the burden. The

court, however, gave a general

instruction on burden of proof, told

the jury to consider the charge as a

whole, and instructed that "the law

App-30

does not require a defendant to prove

his innocence or produce any evidence

at all."

While it would have been better

to include within the entrapment

instruction itself an instruction on

burden of proof, the jury instruction

considered as a whole was sufficient.

X. Miscellaneous issues

Other issues may be disposed of

summarily, some without comment.

In testimony DEA agents referred

at times to appellants as "traf-

fickers," “violators” and "conspira-

tors" and the group as the "Natale

organization." To the extent these

descriptions were subject to objec-

tion at all, they were clearly not

reversible.

Even if the matter was properly

raised, it was not error for the

App-31

court to grant the jury's request to

rehear taped conversations between

agents and defendants but to deny the

jury's request for written transcript

of testimony of agents.

Comesana's argument that opening

statements of counsel for Natale and

Vadino, see part V, supra, were

comments upon his Fifth Amendment

right to remain silent is totally

meritless.

The convictions are AFFIRMED.

App-32

UNITED STATES of America,

Plaintiff-Appellee,

Ve

Frank J. VADINO, Elio Perez-Herrera,

Ivan L. Stephans, Eduardo Comesana,

and Ralph Natale,

Defendants~Appellants.

No. 80-5716.

United States Court of Appeals,

Eleventh Circuit.

Nov. 15, 1982.

Appeals from the United States

District Court for the Southern

District of Florida.

ON PETITIONS FOR REHEARING AND

PETITIONS FOR REHEARING EN BANC

(Opinion July 19, 1982, 11 Cir.,

1982, 680 F.2d 1329)

Before GODBOLD, Chief Judge,

RONEY and WOOD*, Circuit Judges.

* Honorable Harlington Wood, Jr.,

U.S. Circuit Judge for the Seventh

Circuit, sitting by designation.

App-33

PER CURIAM:

We said with respect to Stephans

that his participation in the conspi-

racy was established by overwhelming

evidence independent of the Perez-

Herrera statements. We recited that

independent evidence. To erase any

doubt of what we meant by our hold-

ing, admissibility of the Perez-Her-

rera statements against Stephans was

harmless error beyond reasonable

doubt under Chapman v. California,

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d

705 (1967).

The petitions for rehearing of

Stephans, Comesana, Natale and Vadino

are DENIED, 680 F.2d 1329, and no

member of this panel nor Judge in

regular active service on the Court

having requested that the Court be

App-34

polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 26), the sug-

gestions for Rehearing En Banc of

Stephans, Comesana, Natale and Vadino

are DENIED.

App-35

Trial Court Findings

-+. two of the conversations --

MR. TUNKEY: I heard three con-

versations, and all on the same

cassette. I will show you the

cassette.

MR. HANNA: They are not -- They

were not on the same Government's

cassette. They were on two different

Government cassettes. That is the

point I tried to make. He must have

had two of the Government cassettes.

MR. TUNKEY: I have three conver-

sations from one cassette. It

doesn't matter.

THE COURT: Well, I think it is a

very difficult question, but I am

going to adopt the position as a

factual matter, there is no violation

App-36

of the standing discovery order on

the part of the Government, and those

tapes would not be kept out on that

account.

Now, as far as these matters

raised by Mr. Kogen about the date, I

am going to rule that that is suffi-

ciently covered in the indictment to

include a date just one day subse-

quent to those dates specifically

mentioned in the indictment. I think

the law is clear on that.

Also, I have reviewed the stat-

utes relative to wiretaps, and it is

my view those statutes are not appli-

cable - that section of the code is

not applicable. Here we have not

really a tap of a phone, but we have

a consenting agent carrying on a con-

versation with Mr. Perez-Herrera

which conversations assertedly

App~-37

include admissions against interest,

and they should be admissible

againsthim on that score.

MR. KOGEN: How is it going to be

applied to my client?

THE COURT: Now, insofar as the

other Defendants are concerned, if

there are -- If these are co-conspi-

rator statements, it is my ruling

that the conspiracy had not neces-

sarily ended at the time of their

arrest. The law is clear that an

arrest does not necessarily end the

conspiracy, and I think it is simply

going to be a question as to whether

or not those statements do implicate

other particular individuals. If

they do, I think, although we haven't

really reached the point where I

could make a ruling on the James

hearing here, but if we get past that

App-38

James thing, those co-conspirator

statements are to come in.

MR. NAHOOM: Excuse me, your

Honor. I wasn't aware we ever had a

James hearing.

THE COURT: We have not had a

James hearing. The order of proof of

the Government at some point will

require me to make a finding ona

preponderance of evidence whether or

not the requirements of that case

have been met, and I don't think we

are quite there yet - at least as to

all of the Defendants we are not. We

perhaps are as to some of them.

MR. TUNKEY: Last, how about the

404 about evidence?

THE COURT: 404 about evidence,

as has ...

App-39

SOUTHERN DISTRICT OF FLORIDA

UNITED STATES Of AMERICA

vs.

The Premises known as a

6358 Milk Wagon Lane

Magistrate's Docket No.

79-4805-PJK

SEARCH WARRANT

To Special Agent of the Drug Enforce-

ment Administration, and any other

authorized law enforcement officer.

Affidavit having been made before me

by W. Barry Carew, Special Agent,

Drug Enforcement Administration, that

he has reason to believe that on the

premises known as 6358 Milk Wagon

Lane, Miami Lakes, Florida in the

Southern District of Florida there is

now being concealed certain property,

namely cocaine, methaqualone; United

States currency; plastic baggies;

App-40

scales; plastic containers; telephone-

address books; customer-supplier

lists; code books; narcotics; narco-

tic paraphernalia; firearms; mixing,

cutting, and measuring spoons; con-

traband, financial records of narco-

tics transactions; bank books; safe

deposit keys; any property that cons-

titutes evidence of the below-des-

cribed offenses being kept there in

violation of Title 21, U.S. Code, Sec-

tions 84l(a)(a); 843; and 846 involv-

ing possession with intent to distri-

bute cocaine and methaqualone and dis-

tribution of cocaine and methaqua-

lone, a Schedule II narcotic drug con-

trolled substance as defined in the

Controlled Substances Act 1970, and

as I am satisfied that there is prob-

able cause to believe that the pro-

perty so described is being concealed

App-41

on the premises above described and

that the foregoing grounds for appli-

cation for issuance of the search war-

rant exist.

You are hereby commanded to

search forthwith the place named for

the property specified, serving this

warrant and making the search in the

daytime and if the property be found

there to seize it, leaving a copy of

this warrant and a receipt for the

property taken, and prepare a writ-

ten inventory of the property seized

and return this warrant and bring the

property before me within ten days of

this date, as required by law.

Dated this 8 day of Feb., 1979.

pGctastiste ey

Patricia J. Kyle

U.S. Magistrate

The Federal Rules of Criminal Proce-

App-42

dure provide: "The warrant shall

direct that it be served in the day~-

time, but if the affidavits are posi-

tive that suspect is on the person or

in the place to be searched, the war-

rant may direct that it be served at

any time." (Rule 11C).

This is certified to be a true and

correct copy of the original

Lal

Deputy Clerk, U.S. Magistrate

App~43