Petition — United States v. Gonsalves

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ee MAY SL 1983

No.

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In the Supreme Court of the Anited States

OCTOBER TERM, 1982

UNITED STATES OF AMERICA, PETITIONER

U.

STEPHEN A. GONSALVES

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Rex E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

JOHN FICHTER DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ES, EN, OE CT Oe eee

QUESTION PRESENTED

Whether the district court correctly invoked “superviso-

ry power” to dismiss the indictment on the ground that con-

ducting a trial would impose an undue burden upon the

court.

(1)

TABLE OF CONTENTS

Page

Opinions below .........-.ee cece cere e eee e cette 1

Pe nia ea beeen gas Kees een nese nes l

ahah TNUAIVO . ou cine sets cere cere senecescenes 2

EE ESET LE EOE ESI 2

Reasons for granting the petition ........--++++++ 12

(ST 24

Appendix A... 00. cncnceccereece cess eessccees la

Appendix B ..........scsecce reece e cess eccoecees 24a

Appendix C ..... 2. cece eee c cece reece eee ceereecs 27a

Appendix D .. o.oo cece eee seen sec ce ns eeeenecees 42a

Appendix E ..... occ ccc ens nee sees eres esses neee 43a

Appendix F .... 20 ce en cnsccce nee er cscccecess 44a

TABLE OF AUTHORITIES

Cases:

Amsler v. United States, 381 F.2d 37......... 23

Baker v. Carr, 369 U.S. 186 .......---seeeees 21

Bordenkircher v. Hayes, 434 U.S. 357 .......- 13, 18

Colorado River Water Conservation District v.

United States, 424 U.S. 800 ..........-eees 13, 16

Confiscation Cases, 74 U.S. (7 Wall.) 454 ..... 18

Costello v. United States, 350 U.S. 359 ....... 7

England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411 .....ccccceccccues 13, if

Inmates of Attica Correctional Facility v.

Rockefeller, 477 F.2d 375 .......+++++e0eees 19

Marbury v. Madison, 5 U.S. (1 Cranch)

i i ee te se ewes ti, 16, 17

McNabb v. United States, 318 U.S. 332....... 13, 14

Newman v. United States, 382 F.2d 479 ...... 19

Palermo v. United States, 360 U.S. 343 ...... 19

Powell v. Katzenbach, 359 F.2d 234 .......... 19

Ill

IV

Cases:—Continued Page

Smith v. United States, 375 F.2d 243 .........

United States v. Batchelder, 442 U.S. 114 ....

United States v. Bertolotti, 529 F.2d 149...... 15,

United States v. Brown, 481 F.2d 1085 .......

United States v. Coven, 662 F.2d 162, cert.

CI, Fe ng new ci cce ns ccccnunes

United States v. Cor, 342 F.2d 167, cert.

WT, Oe a esc kan cucecwaues 18,

United States v. Goodwin, No. 80-2195 (June

De i abc w ccc wasn cue eues

United States v. Hasting, No. 81-1463 (May 23,

pe CARRIER SETS I UR Re ape agen ere 15,

United States v. Lovasco, 431 U.S. 783 .......

United States v. Morrison, 449 U.S. 361......

United States v. Miller, 463 F.2d 600, cert.

I Fe iv ook whic cvcccicceses

United States v. Nixon, 418 U.S. 683......... 16,

United States v. Payner, 447 U.S. 727..18, 14, 17,

United States v. Praetorius, 622 F.2d 1054,

RPE. GN, SO UL, Ben vc ccs nnsevcse

United States v. Russell, 411 U.S. 423 .......

Umsied States v. Seok, BT U.S. SE... ow canes

United States v. Sperling, 506 F.2d 13238, cert.

I I, oe voce cc ccececc

Willcox v. Consolidated Gas Co., 212 U.S. 19.

Youngstown Sheet & Tube Co. v. Sawyer, 343

ao wkd kckiceesunsces i,

Constitution, statutes and rules:

Pov | GO ee ee

haw

Be es I oc ees ec ceseccsncens

Re a ee ee 2, 16,

WU ai ease cednceyscnnies

V

Constitution, statutes and rules:—Continued Page

Dy UG BU oo kien vce cckecennsnes 2, 4

eo hc dek kn ce sadcenwenes & 4 8

Oe reek cen is vanes ces cece 2,4

a aes rer err rarer. 2,4

ee oo oe a oe nha bceeennenes 2. 4, 19

Oe Oe PO occ ete wees ns cnceess 22

28 U.S.C. (@ Supp. V) SOGLD) .. .. ccc eecess 22

28 U.S.C. (@ Supp. V) 202d) ... 2. cece nceess 22

28 U.S.C. (@ Supp. V) 204.2... cece erence ees 22

Fed. R. Crim. P.:

oc ces k eee wenn nea 20

acc n hehe kann ee 3

ics cdaecsscasnnes 20

We hc keds cin ceuns css 3

pO RUSE USGS 0s ARRENE S oe cag na 20

ee haa ckesctrwnnees 20

ein vce cin kee emus ins :

ee BI oo ck eve ceccneces ss 23

Miscellaneous:

Note, A Separation of Powers Approach to the

Supervisory Power of the Federal Courts, 34

Stan. L. Rev. 427 (19GB) .... 2. ec eeeeeccess .

3 J. Wigmore, Wigmore on Evidence

(Chadbourn rev. 1970) .. ... «2. cccnescceen: 23

In the Supreme Court of the United States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

U.

STEPHEN A. GONSALVES

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States, pe-

titions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-23a) is reported at 691 F.2d 1310. The district court’s or-

der granting respondent's motion to dismiss the indictment

(App. B, infra, 949-26a) is unreported. The 1976 oral opin-

ion of the district court granting motions for “acquittal”

filed by three other defendants charged along with respon-

dent in the indictment (App. C, infra, 27a-41a), upon which

the court relied in dismissing the indictment as to respon-

dent, is likewise unreported.

JURISDICTION

The judgment of the court of appeals (App. D, infra, 42a)

was entered on November 9, 1982, and a timely petition for

rehearing was denied on February 28, 1982 (App. E, infra,

43a). On April 23, 1983, Justice Rehnquist extended the

time in which to file a petition for a writ of certiorari until

2

May 29, 1983. The jurisdiction of this Court is invoked un-

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

STATUTE INVOLVED

18 U.S.C. 3231 provides in pertinent part:

The district courts of the United States shall have

original jurisdiction, exclusive of the courts of the

States, of all offenses against the laws of the United

States.

STATEMENT

On March 25, 1976, respondent and 12 other defendants

were charged in a two-count indictment returned by the

federal grand jury in the District of Nevada with conspir-

acy to import hashish, a controlled substance, into the

United States, in violation of 21 U.S.C. 952(a), 960(a)(1)

and 963, and conspiracy to possess that contraband with in-

tent to distribute it, in violation of 21 U.S.C. 841(a)(1) and

846. Respondent was a fugitive for several years after the

return of that indictment. See United States v. Gonsalves,

675 F.2d 1050, 1051-1052 (9th Cir. 1982). He surrendered to

federal authorities in Las Vegas on August 28, 1980, and

his case was set for trial. On September 28, 1980, respon-

dent moved to dismiss the indictment on the grounds that

previously had been stated by the district court in 1976 in

entering judgments of acquittal as to three of the other de-

fendants charged in the indictment. On December 17, 1980,

the district court (Foley, J.), invoking “discretionary super-

visory powers,” dismissed the indictment as to respondent.

The court stated that the indictment was “a complex mon-

strosity,” and that dismissal was warranted for the “rea-

sons articulated in this Court’s [prior] order and judgment

of acquittal” as to the three defendants previously prose-

cuted (App. B, infra, 26a). The court of appeals affirmed.

l.a. In December 1975 a grand jury sitting in Nevada re-

turned a three-count indictment, Cr. LV 75-198, charging

respondent and 15 other individuals with conspiracy to

import hashish and conspiracy to possess hashish with in-

tent to distribute, (Count I), importation of hashish (Count

II), and possession thereof with intent to distribute (Count

3

III).! Only three of the defendants, Richard Kenneth

Brown, Robert David Work, and Kent Giles Snyder, were

apprehended at the time. The others were citizens of other

countries and nonextraditable, or (like respondent) fugi-

tives. After the government voluntarily dismissed the two

non-conspiracy counts pursuant to Fed. R. Crim. P. 48(a),

a motion was filed to dismiss the remaining count on the

ground that it charged two separate (albeit related) of-

fenses without separating them into counts, in violation of

Fed. R. Crim. P. &(a). On February 26, 1976, the district

court granted that motion without prejudice to

reindictment. The district court also took the occasion to

complain about other aspects of the case presented to him:

Count I of the indictment now dismissed names 16

defendants. Ten of the defendants are citizens of other

countries and not amenable to the process of this

Court, and according to the Government, there is no

way they can be compelled to appear before this Court

pursuant to treaty between the United States and the

countries of which they are citizens. Of the 6 defend-

ants that are citizens of the United States, only 3 are

before the Court, the other 3 are fugitives and the

Government cannot assure the Court as to whether or

not pending bench warrants will ever be served upon

them. The indictment names some 14 co-conspirators

who are not defendants and alleges 93 separate overt

acts alleged to have taken place in the United States

and many foreign countries.

The district court concluded:

The Court hopes that in representing the matter to the

Grand Jury United States Attorney Lawrence

Semenza will make some effort at least to comply with

the requirements of Rule 7(c)(1)[?] and, in addition, to

give the Court a case that is manageable for trial.

Count I of the indictment now dismissed is, to say the

least, a monstrosity.

! Respondent was not charged in Counts II and ITI,

2 Fed. R. Crim. P. 7(¢)(1) provides, in pertinent part:

The indictment * * * shall be a plain, concise and definite

written statement of the essential facts constituting the offense

charged.

d

b. Less than a month later, on March 25, 1976, the grand

jury returned another indictment, Cr. LV 76-39, based

upon the scheme previously charged.? The two-count in-

dictment charged 13 defendants, including respondent,

Brown, Work, and Snyder, with conspiracy to import a con-

trolled substance (hashish), in violation of 21 U.S.C. 952(a),

960(a)(1) and 963 (Count I) and conspiracy to possess a con-

trolled substance with intent to distribute, in violation of 21

U.S.C. 841(a)(1) and 846 (Count II). The twin conspiracies

charged each spanned the period March 4, 1973 to June 1,

1974. Ten overt acts were enumerated, and 17 unindicted

co-conspirators were named.

The indictment charged that defendants repeatedly

imported large quantities of hashish. As ultimately elabo-

rated in the government’s trial memorandum submitted in

connection with the scheduled trial of defendants Brown,

Work, and Snyder, five successive episodes of importation

were involved. Each episode entailed shipment of specially

constructed oversized stereo speaker cabinets to a location

in Europe, transfer of large amounts of cash from central

figures in the United States to operatives in various Euro-

pean cities who purchased the hashish, insertion of the con-

traband into plastic inserts which were in turn installed in

the stereo speaker cabinets, shipment of the speaker cabi-

nets to various United States cities by air freight, and

claiming of the cabinets and removal of their illicit contents.

The last of these shipments was destined for Las Vegas but

was intercepted by federal agents, triggering the investiga-

tion that produced the 1975 and 1976 indictments.

The case was ready for trial in the fall of 1976. Defend-

ants Brown, Work, and Snyder were still the only ones who

could be located for trial. The court allowed the motions

that had previously been filed attacking the earlier indict-

ment to be refiled in this case but did not act upon them be-

fore impaneling a jury and entertaining opening statements

on September 21, 1976.4 The next morning, however, rath-

3 Indictment Cr. LV 76-39 is reproduced as Appendix F, 44a-5la,

infra.

* It appears that the district court intended by its failure to act to

deny those motions (see App. C, infra, 34a).

~

0

er than proceeding with the government’s case as sched-

uled, the district court invited the defendants to move for

judgments of acquittal based on the government’s opening

statement and trial memorandum (App. C, infra, 30a).

Observing that “I read the trial memorandum last night,

I hadn’t read it before” (App. C, infra, 29a), the district

judge went on to explain at considerable length that he was

unwilling to proceed with trial (id. at 30a-41a). His remarks

made three interrelated points: (1) that the government

should have charged each of the major episodes described

in the government’s trial memorandum as a separate con-

spiracy (id. at 3la-34a, 38a, 41a); (2) that if the charges had

been so divided venue would not lie in Nevada as to several

of the sub-offenses that could have been charged (id. at

31a, 38a, 41a); and (3) that the case was, in any event, too

complex and unmanageable to try, and the indictment

would accordingly be dismissed under the inherent supervi-

sory power the court believed it possessed (id. at 34a-35a,

384-40a). The latter theme was dominant in the court’s re-

marks. Also interspersed throughout the court’s remarks

were comments reflecting strained relations between the

individual district judge presiding and United States Attor-

ney Lawrence Semenza.

Because of the extraordinary nature of the district

court’s explanation of its ruling, we review these comments

in some detail.

The district court commenced (App. C, infra, 30a):

(I]n the Alice in Wonderland mind of Lawrence

Semenza, who is United States Attorney for Nevada,

we have conjured up here a massive conspiracy. This

isn’t the first time Mr. Semenza, in his own inimitable

way, has conjured up a massive conspiracy. Back in

1974, I spent a whole summer, missed the Judicial

Conference, trying one of Larry Semenza’s dreams

* * *

The district court recounted this prior experience in trying

an elaborate multi-defendant drug case. The court singled

out repetitive cross-examination and the rudeness of the

defendants’ counsel as the signal difficulties of the earlier

6

trial (ibid). The court stated (ibid.), “Mr. Semenza sat in

that chair and smiled. I think he likes to concoct this type

of monstrosity.”

The court then proceeded to review the sequence of

events laid out in the government’s trial memorandum.

suggesting at intervals how they could have been divided

into separate conspiracies for purposes of prosecution (in

some instances in other judicial districts), noting the un-

availability of many of the defendants for trial, and contin-

uing its criticism of the United States Attorney (App. C,

infra, 3la-34a).5 Concluding this review, the court stated

(id. at 34a):

I haven't done any research, but I am going to grant

the motion [to acquit] based on the, and it is so or-

dered that it is granted, based on the opening state-

ments and the trial brief, on the grounds that the court

had no jurisdiction. And on the further ground that

this type of a monstrosity, unmanageable monstrosity,

does not have to be tried by Federal Judges. [®]

5 See, e.g., App. C, infra, 31a:

Most prosecutors, ninety-nine out of a hundred lawyers that

have any logic in their mind would have said, “Okay, that is one

charge.” * * * That is just the beginning of Mr. Semenza’s

dream.

The court added (ibid.): “I really wish the press were here, perhaps

that is just as well.”

See also App. C, infra, 34a:

The theory, of course, in this mind of Mr. Semenza’s “Yes, that

they are working for Combs” [the “mastermind” of the conspir-

acy charged]. Well Combs might have a hundred and fifty other

people working for him, importing, I don’t know, it could be a

half dozen other things not only involving controlled substances.

* * * But, if you follow the logic, the illogic of the mind of our

United States Attorney, that is all one great conspiracy. It is ri-

diculous. * * * I fell for it once. Damn near had a nervous break-

down with that trial. It should have taken two or three weeks

and I let one Los Angeles lawyer voir dire the jury and three

days later, we are still trying to get a jury. I remember that very

well.

* At this juncture the court complained about what it regarded as

the subservience of grand juries to prosecutors and the rendition of in-

dictments based on hearsay evidence (App. C, infra, 34a). In the lat-

ter connection the court acknowledged this Court’s decision in Costello

7

The district court continued (7d. at 35a):

(T]his type of conspiracy is unmanageable trialwise. I

don’t know if there is any case law to support me, It

think that a trial judge is not an umpire and courts

have said this. A Federal trial Judge can participate to

the extent it is necessary to bring order out of chaos,

and to the extent that it is necessary to a fair trial and

comment on the evidence and so forth. He has man-

agement powers, he is not an umpire calling all the

balls and strikes as some of our poor state courts.

And when something like this comes in, the court

has the inherent authority I am going to bola ~*~ * 7 to

dispose of this kind of thing. It is quite apart from

jurisdiction.

Foreseeing the likelihood of a government appeal from its

action, the district court was vague about the legal ground

for the ruling (7bid. ):

I will allow counsel to think about it and read what the

government says in their brief if they do take it to ap-

peal and then leave open any other reasons to support

me. But it is the kind of thing that should not be tried

or allowed.

In view of its criticism of the United States Attorney,

the court stated to the Assistant United States Attorneys

prosecuting the case (App. C, infra, 36a): “I don’t expect a

response from government counsel, you have got to be loyal

to the man you are working for.” The prosecutors never-

theless sought leave to go forward with their evidence,

arguing that they would be able to establish the existence

of a single overall conspiracy, and observing that if the gov-

ernment failed to sustain its burden in this regard a motion

for acquittal could be granted at the close of the govern-

ment’s case. The court declined to consider this procedure,

stating (ibid.), “I am not going to waste two or three

weeks. I have got other things to do and so have you and

the other counsel.” The court appeared to acknowledge that

whether the acts charged were part of a single conspiracy

vy. United States, 350 U.S. 359 (1956), but commented (App. C, infra,

34a): “It’s going to change, it’s going to have to.”

3

Was a factual question (id. at 37a-38a). The court insisted,

however (id. at 38a):

You are misunderstanding, I am not saying there is no

theory * * * for this. I say it is a monstrosity, it is

unmanageable, it is not the kind of thing that a court

has to put up with and it should be broken down.

After advising the prosecutors in considerable detail as to

how the prosecution should have been handled (App. C,

infra, 38a), the court again refused to allow the govern-

ment an Opportunity to prove that the overall conspiracy

charged had occurred, making clear that it was unwilling to

try the case in any event (id. at 39a: emphasis added):

You are not going to offer any evidence. If the Court

of Appeals reverses this finding and sends it back for

trial, | won't try it. I will find some young Judge that

has got more patience and energy than I have, to come

in and try it.

The district court never explained what it was that would

make the trial of Brown, Work, and Snyder on the conspir-

acy indictment returned by the 1976 grand jury unmanage-

able. In discussing a prior experience with a multi-

defendant drug conspiracy trial, the court made clear that

it preferred that the case be tried elsewhere (App. C,

infra, 40a). The court appears, moreover, to have lost sight

of the fact that there were only three defendants before it

for trial (id. at 39a):

THE COURT: * * * I don’t think that the court has to

sit carte blanche—let’s suppose that somewhat like the

[earlier] case that all the defendants were found here

and they all had different lawyers. Have you ever been

through one of those? Mr. Sheridan [counsel for de-

fendant Snyder], I know you better than those other

gentlemen. Have you ever seen one of those tried?

MR. SHERIDAN: Yes, your honor.

THE COURT: They are horrible. They are unmanage-

able. You’ve got how many defendants, eleven?

MR. SHERIDAN: Thirteen, I think and seventeen

unindicted co-conspirators.

THE COURT: You have got eleven cross-examiners

for each witness. * * *

9

The court acknowledged (App. C, infra, 39a) that mas-

sive conspiracies do exist, and did not explain why the

three defendants before it should not go to trial upon the

indictment. Instead, the court again suggested that the

case should have been prosecuted elsewhere, renewed its

sharp criticism of the United States, and finished with a

suggestion that it commence general supervision of the

prosecutorial decisions of the United States Attorney (id.

at 40a; emphasis added):

[N]o, you see they all came from Las Vegas and that is

how I got [this case]. Another one of Mr. Semenza’s

Alice in Wonderland dreams. And they are that. They

are ridiculous in concept. I don’t know what the matter

is, I don’t know how he thinks. I think he has some

kind of sense of delight in conjuring these things up,

creating these massive puzzles and saying, “Let’s see

how Judge Foley can handle that.” I don’t know what

is going on, but I will tell you this much, I’m not going

to put up with it any more. Please God, we'll have a

change of administration and he'll be gone.[{7] I don’t

know about that either, but /’m not going to put up

with Semenza any more.

So I won't try this. If the Court of Appeals should

say that I am wrong, I don’t think they are going to,

and this case comes back, I won’t try it. And I won't

try any more of Larry Semenza’s cases that are this ill.

I’m going to have to work out some system when I get

copies of the indictment where I can demand in ad-

vance a trial brief so I can see what we are into before

we go through all the time and energy, the motion

stage and impanelling the jury and so forth.

The motions for acquittal were granted (id. at 41a).

c. The government took an appeal from the judgments of

acquittal, arguing that there would be no Double Jeopardy

bar to further proceedings after the “acquittal” because the

grounds for acquittal had no bearing on the question of

guilt or innocence, and the “trial” had been a sham. On May

4, 1977, however, the court of appeals dismissed the gov-

7 These proceedings occurred shortly before the 1976 presidential

election.

10

ernment’s appeal on double jeopardy grounds (see App. A,

infra, 9a).®

2.a. As previously noted, proceedings directly involving

respondent commenced when he surrendered to federal au-

thorities in August 1980. Respondent moved to dismiss the

indictment for the reasons given by the district court in

acquitting Brown, Work, and Snyder in 1976. Respondent

also argued that the trial would be protracted, with many

government witnesses and an extensive defense case, and

that such a prosecution was unwarranted given what he

characterized as his minor role in the alleged conspiracy.

Finally, respondent urged that the government was collat-

erally estopped from opposing dismissal by the order en-

tered in the earlier prosecution.

The district court granted the motion to dismiss on De-

cember 17, 1980 (App. B, infra, 24a-26a). The court de-

clined to rely upon collateral estoppel (¢d. at 25a) and ap-

pears to have eschewed any suggestion that the indictment

charged multiple conspiracies or that venue was improper,

relying exclusively upon the supervisory power rationale

for dismissal asserted in 1976 (/d. at 26a; citations omitted):

This court is well aware that a conspiracy prosecution

may be brought in any district in which any act in fur-

therance of the conspiracy was committed by any of

the conspirators, even though some of them were nev-

er physically present there. * * * And the actions in

Las Vegas of Ernest Franz Combs, Jr., an indicted

coconspirator, could be used to establish the necessary

overt act within this district. However, the problem in

Brown [the prosecution of Brown, Work and Snyder]

was that the indictment was such a complex monstrosi-

ty that this Court decided that it should have been

broken down into several smaller more manageable in-

dictments. There was simply no good reason for those

defendants to be indicted in this district given their al-

leged roles in the government’s conspiracy theory.

This Court is confronted with that same problem with

the indictment against Gonsalves.

8 The court of appeals, of course, acted without the benefit of United

States-v. Scott, 437 U.S. 82 (1978).

1]

Therefore, for the reasons articulated in this Court’s

September 21, 1976 order and judgment of acquittal as

to defendants Brown, Work and Snyder, this Court

hereby exercises its discretionary supervisory powers

and dismisses the indictment as against Gonsalves.[%]

b. The government appealed and, nearly two years later,

the court of apeals affirmed. It stated: “Our task is to de-

termine whether the dismissal of the indictment was a

proper exercise of supervisory power by the district court”

(App. A, infra, 10a). The court of appeals recognized that

the dismissal of the indictment in this case did not rest

upon any infringement of respondent’s legal rights (7d. at

10a, 13a, 14a). Nevertheless, the court espoused a broad

doctrine of supervisory authority vested in the district

courts “to do justice in particular fact situations” (7d. at

lla). Recognizing that dismissal of an indictment absent le-

gal grounds for doing so may “encroach on the prosecutor's

prerogatives” (id. at 12a) and implicate separation of pow-

ers concerns (id. at 14a), the court invoked a principle of

“checks and balances,” said to be implicit in the Constitu-

tion, as a source of supervening authority (7d. at 15a-16a).

Citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),

and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952), the court stated (7d. at 16a): “It is clear that Article

III authorizes the judicial branch to review the operations

of the executive and legislative branches” and concluded

(ibid. ):

The judiciary therefore should use its supervisory

power to maintain its own institutional integrity, in-

cluding the ability to administer an effective criminal

justice system * * *

Turning to the particular case presented, the court of ap- .

peals stated: “The District Court in this case hadfample fac-

tual and legal basis upon which to conclude that the indict-

ment pursued by the prosecutor constituted a serious

intrusion into the judiciary’s interest in the fair administra-

tion of the criminal justice system” (?d. at 19a). It sug-

gested that the transcript of the district court’s 1976 oral

9 Only a minute order records the 1976 disposition. Accordingly, the

court must have intended to invoke its oral ruling.

12

ruling acquitting defendants Brown, Work, and Snyder re-

flected the judge’s experience with the problems of manag-

ing “massive conspiracy trials” (id. at 18a). The court also

invoked Second Circuit decisions noting the risks of appel-

late reversal created by use of broad conspiracy indict-

ments (?d. at 18a-19a).

The court of appeals explained its conclusion that dis-

missal was warranted here only in the most general terms

(App. A, infra, 19a-20a; footnote omitted):

Our own review of the record, and indeed our mere

recitation of the elaborate facts of the conspiracy out-

lined in the indictment * * * show that the facts here

justified the conclusion that to allow prosecution on

this indictment would “gravely impair the basic func-

tion of” the District Court.

The court was not required to ignore the practical con-

siderations attendant to a trial of this size and com-

plexity, e.g., the innumerable pretrial motions, the

occupation of weeks of the court’s busy calendar, the

superhuman tasks facing the jury and the likelihood of

a mistrial. On the facts of this case the judge had a sol-

id basis upon which to find the prospect of these hor-

rors real and the resulting disruption of the judicial

process great.

Purporting to apply a balancing test weighing these consid-

erations against the value of prosecutorial discretion (id. at

20a), the court of appeals concluded that “the degree of en-

croachment upon the prerogatives of the prosecutor that a

dismissal entails in this case is minimal” because the dis-

missal was without prejudice and left the prosecutor free to

seek reindictment upon terms charging separate conspira-

cies of less global scope in other venues (id. at 20a & n.13).

REASONS FOR GRANTING THE PETITION

The dismissal of the indictment in this case was not based

on any finding that it failed to state an offense triable in the

United States District Court for the District of Nevada or

that trial on the indictment would violate any right of re-

spondent’s. Rather, it was based on vaguely identified “su-

pervisory powers” and considerations of judicial conven-

ience. By upholding the dismissal, the decision of the court

13

of appeals effects an unprecedented shift of authority to de-

termine whether and against whom criminal charges should

be brought, and the nature of those charges, from the Ex-

ecutive Branch (and the grand jury), where it has hereto-

fore resided, to the district courts. This transfer finds no

support in the decisions of this Court identifying the limits

and purposes of the supervisory power and is contrary to

this Court’s teaching that “[t]he supervisory power merely

permits federal courts to supervise ‘the administration of

criminal justice’ among the parties before the bar.” United

States v. Payner, 447 U.S. 727, 735 n.7 (1980), quoting

McNabb v. United States, 318 U.S. 332, 340 (1943). Nor

has any decision of any other court of appeals purported to

arrogate a similar authority to the judiciary.

The court of appeals’ decision is also contrary to other

fundamental principles established by this Court’s deci-

sions. First, the court of appeals’ decision disregards the

“virtually unflagging obligation of the federal courts to ex-

ercise the jurisdiction given them.” Colorado River Water

Conservation District v. United States, 424 U.S. 800, 817

(1976); see also England v. Louisiana State Board of Med-

ical Examiners, 375 U.S. 411, 415 (1964). Second, the

court of appeals’ reasoning that dismissal of the indictment

was permissible because different charges could still be

proffered in other venues ignores the fundamental rule of

prosecutorial discretion:

In our system, so long as the prosecutor has probable

cause to believe that the accused committed an offense

defined by statute, the decision whether or not to

prosecute, and what charge to file or bring before a

grand jury, generally rests entirely in his discretion.

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Accord-

ingly, the district courts do not possess authority— how-

ever it may be labeled—to determine that trial of defend-

ants upon legally valid charges pressed by the prosecutor

and the grand jury would impose an undue burden upon the

courts.

Even if such authority were available in extraordinary

circumstances, the record of this case provides no basis for

its application. It is inconceivable that the trial of a single

14

defendant upon a two-count indictment could present an

unmanageable task for the district court. Indeed, neither

the district court nor the court of appeals identified any ba-

sis in the record of this case for concluding that the trial

would entail unusual difficulties. Moreover, the record re-

veals with painful clarity that the true basis for the district

court’s ruling was its view that the prosecutorial practices

of the government generally should be subject to its con-

trol, together with the individual trial judge’s disapproval

of the United States Attorney’s prosecutorial policies.

l.a. There is no precedent for the exercise of supervisory

power sanctioned by the court of appeals in this case. It is

established that supervisory power does not arm “the fed-

eral judiciary [with] a ‘chancellor’s foot’ veto over [prose-

cutorial] practices of which it d[oes] not approve” (United

States v. Russell, 411 U.S. 423, 485 (1973)). As the Court

stated in Russell (ibid.; emphasis added):

The execution of the federal laws under our Constitu-

tion is confided primarily to the Executive Branch of

Government, subject to applicable constitutional and

statutory limitations and to judicially fashioned rules

to enforce those limitations.[}°]

As the Court cautioned in Payner, supra, 447 U.S. at 735

n.7, quoting McNabb v. United States, supra, 318 U.S. at

332, “[t]he supervisory power merely permits federal

courts to supervise ‘the administration of criminal justice’

among the parties before the bar.” There is no suggestion

in this Court’s decisions (or those of the other courts of ap-

peals) that supervisory authority exists to determine which

10 The Court’s comments in Russell were made in the course of re-

jecting the suggestion that it give extra-constitutional, extra-statutory

scope to the entrapment defense—in other words, that it invoke a su-

pervisory power.

_

15

parties should be prosecuted or to determine (other than by

reference to the pertinent legal rights of defendants) what

the charges against them should be.??

That the decision of the court of appeals overstepped the

confines of the supervisory power doctrine is confirmed by

this Court’s recent decision in United States v. Hasting,

No. 81-1463 (May 23, 1983). There the Court described the

supervisory power as allowing federal courts “within lim-

its, [to] formulate procedural rules not specifically re-

quired by the Constitution or the Congress” (slip op. 6; em-

phasis added). Of course, the dismissal of a legally valid

indictment, sanctioned by the court of appeals in this case,

rests not upon some rule governing the conduct of proceed-

ings before a court, but upon the district court’s view that

trial of the case itself does not comport with the public in-

terest. That such a determination overreaches the bounda-

ries of the courts’ supervisory authority is evident from

consideration of the purposes of the supervisory power doc-

trine identified by the Court in Hasting (slip op. 6; citations

omitted):

The purposes underlying use of the supervisory pow-

ers are threefold: to implement a remedy for violation

of recognized rights * * *; to preserve judicial integri-

ty by ensuring that a conviction rests on appropriate

considerations validly before the jury * * *; and

finally, as a remedy designed to deter illegal conduct

* * *

None of these purposes is served by the dismissal of this

case. The courts below did not purport to identify any vio-

11 To the extent the court of appeals relied (App. A, infra, 18a-19a)

upon the Second Circuit’s decisions in United States v. Sperling, 506

F.2d 1323, 1340-1341 (1974), cert. denied, 420 U.S. 962 (1975), and

United States v. Bertolotti, 529 F.2d 149 (1975), that reliance was mis-

placed. In Sperling the court of appeals merely cautioned the prosecu-

tor that whenever the link between episodes of a larger conspiracy is

tenuous, there is a risk of appellate reversal of convictions secured

upon the global conspiracy charge. 506 F.2d at 1340-1341. And in

Bertolotti convictions were reversed because the court of appeals

found “no evidence linking [the illegal transactions charged] together

in a single overall conspiracy.” 529 F.2d at 155. The Second Circuit did

not suggest on either occasion that the district court possessed super-

visory authority to prevent the government from seeking to prove its

case, which is what the district court did here.

16

lation of respondent’s rights that would result from bring-

ing him to trial upon the indictment in this case. And the

rationale of the court of appeals for sanctioning dismissal

bears only a semantic resemblance to the judicial integrity

concerns recognized in Hasting, for neither court below

identified any consideration that would have been improp-

erly presented to the jury simply because respondent was

to be tried upon the pending indictment. Finally, there is

no suggestion whatsoever that the prosecution of this case

involves illegal conduct by prosecutors or other law en-

forcement personnel.

b. The court of appeals’ premise that supervisory power

may be employed to dismiss indictments where trial would

impose burdens upon a district court that are, in that

court’s judgment, unwarranted, distorts the role of the fed-

eral courts in our constitutional system. It does not deni-

grate the role of the judiciary to remember that the func-

tion of the federal courts is “to say what the law is” with

respect to the cases before it, Marbury v. Madison, supra,

5 U.S. (1 Cranch) at 177, and to apply the law thus deter-

mined to the facts of those cases as they are found to be. In

United States v. Nixon, 418 U.S. 683, 707 (1974), the

Court recognized “the primary constitutional duty of the

Judicial Branch to do justice in criminal prosecutions.” This

duty plainly cannot be fulfilled by refusal to try cases that

the courts determine to be unduly time consuming. On the

contrary, the obligation of the federal courts to exercise the

jurisdiction given them is “virtually unflagging.” Colorado

River Water Conservation District v. United States. supra,

424 U.S. at 817.12 Here, moreover, the jurisdiction of the

district court is exclusive and absolute. 18 U.S.C. 3231 pro-

vides in pertinent part:

'? To be sure, the holding of Colorado River Water Conservation

District was that the district court had properly declined to exercise

its jurisdiction in favor of concurrent proceedings in state court. But

the Court stressed that the circumstances presented were “exception-

al.” 424 U.S. at 818. More importantly, the issue was whether the

water rights involved would be adjudicated in state or federal proceed-

ings; there was no suggestion that a federal court might decline to ex-

ercise its jurisdiction when the result would be to preclude altogether

a determination of rights or liabilities.

17

The district courts of the United States shall have

original jurisdiction, exclusive of the courts of the

States. of all offenses against the laws of the United

States.

The dismissal of the indictment in this case is accordingly

“at war with the unqualified terms in which Congress, pur-

suant to constitutional authorization, has conferred specific

categories of jurisdiction upon the federal courts, and with

the principle that ‘When a Federal court is properly

appealed to in a case over which it has by law jurisdiction,

it is its duty to take such jurisdiction.’”’ England vy.

Louisiana State Board of Medical Examiners, 375 U.S.

411, 415 (1964), quoting Willcox v. Consolidated Gas Co.,

212 U.S. 19, 40 (1909).

The court of appeals grounded its decision upon the as-

sertion that “Article III authorizes the judicial branch to

review the operations of the executive and legislative

branches” (App. A, infra, 16a). This fundamental premise

is erroneous. Article III empowers the federal courts to de-

cide only cases or controversies. In doing so, the courts are

authorized “to say what the law is,” Marbury v. Madison,

supra, 5 U.S. (1 Cranch) at 177, and thus to declare that an

Act of Congress is unconstitutional, or that an executive

act is unauthorized by Constitution or statute, as in

Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S.

at 585-589, or is otherwise contrary to law. But neither

these cases, upon which the court of appeals relied (App.

A, infra, 16a), nor any other authority of which we are

aware, suggests that the courts are established to oversee

the functions of the Executive or Legislative Branches gen-

erally, or specifically to review the prosecutorial discretion

of the United States Attorneys.!% Nor does the principle of

“checks and balances” that the court of appeals invoked as a

counterweight to the doctrine of separation of power (ibid. )

13 We note that the court of appeals’ analysis in this aspect rests pri-

marily upon a student law review note, A Separation of Powers Ap-

proach to the Supervisory Power of the Federal Courts, 34 Stan. L.

Rev. 427 (1982), the burden of which is that United States v. Payner,

supra, was wrongly decided by this Court. 34 Stan. L. Rev. at

449-451, 452.

18

support such general supervision of the prosecution by the

district court. That concept is merely descriptive of the ar-

rangements embodied in our Constitution. It has been ap-

plied, inter alia, to describe the function of judicial review.

It may also plausibly be applied to describe the exercise of

the courts’ powers under the Constitution and various stat-

utes and rules that govern criminal proceedings—and in

that special sense to check the power of the Executive as

prosecutor and to hold Congress to constitutional limits in

defining offenses. But the structural principle of checks and

balances said to be embodied in our Constitution plainly

cannot form an independent source of authority for any

branch to exercise discretionary control over the activities

of another branch, lest the actual allocation of authority in

the Constitution be disrupted.

c. The court of appeals reasoned that the district court’s

dismissal of the indictment in this case does not seriously

impair the prerogatives of the prosecutor because the gov-

ernment remains free to indict on charges differently

framed, in other venues (App. A, infra, 20a & n.13). The

court of appeals’ reasoning fails, however, to recognize that

the constitutional authority of the Executive, exercised

through the prosecutor in conjunction with the grand jury,

extends not only to deciding whether to prosecute, but also

to the “select{ion] [of] the charges against the accused.”

United States v. Goodwin, No. 80-2195 (June 18, 1982), slip

op. 11 n.11. As the Court explained in Bordenkircher v.

Hayes, 434 U.S. 357, 364 (1978):

In our system, so long as the prosecutor has probable

cause to believe that the accused committed an offense

defined by statute the decision whether or not to pros-

ecute, and what charge to file or bring before a grand

jury, generally rests entirely in his discretion.

See also United States vy. Batchelder, 442 U.S. 114, 124

(1979); United States v. Nixon, supra, 418 U.S. at 693,

citing with approval United States v. Cox, 342 F.2d 167,

171 (5th Cir.), cert. denied, 381 U.S. 935 (1965); ef. Confis-

cation Cases, 74 U.S. (7 Wall.) 454, 457-459 (1869). The de-

cision of the court of appeals thus cuts to the heart of the

prosecutor’s constitutional independence. It also undercuts

19

the constitutional role of the grand jury in determining

what offenses are to be charged.

The decisions of other courts of appeals recognize that

the prosecutor’s charging decisions are not subject to judi-

cial oversight—no matter what the procedural device by

which it is sought. United States v. Brown, 481 F.2d 1035,

1043 (8th Cir. 1973) (sua sponte dismissal of indictment);

Inmates of Attica Correctional Facility v. Rockefeller, 477

F.2d 375, 379 (2d Cir. 1973) (civil action to compel federal

prosecution); Newman v. United States, 382 F.2d 479

(D.C. Cir. 1967) (appeal from conviction based upon prose-

cutor’s acceptance of co-defendant’s guilty plea to lesser of-

fenses): Smith v. United States, 375 F.2d 243, 247 (5th Cir.

1967) (Federal Tort Claims Act suit); Powell vy. Katzen-

bach, 359 F.2d 234, 235 (D.C. Cir. 1965) (mandamus to

compel prosecution); Un ited States v. Cow, supra (order di-

recting United States Attorney to draft and sign indict-

ment). Each of these cases reflects an understanding of the

respective roles of court and prosecutor that is at odds with

the view of the Ninth Circuit in this case.

d. In addition to the limitations upon the scope of the su-

pervisory power previously addressed, that power is limit-

ed by the paramount authority of Congress to establish,

within constitutional limitations, practices and procedures

and substantive rules to govern proceedings in federal

courts. See, e.g., Palermo v. United States, 360 U.S. 343,

353 n.11 (1959). The decision of the court of appeals, how-

ever, effectively overrides the pertinent provisions of fed-

eral law that establish grounds for dismissal of an indict-

ment and related procedures in managing a criminal trial.

As previously noted, the discretionary power of dismissal

(unrelated to rights of the defendant) announced by the

courts below is inconsistent with 18 U.S.C. 3231, which

vests the district courts with jurisdiction over all offenses

against the United States. Absent specific legal grounds for

dismissal of an indictment, such as failure to state an of-

fense, the assumption of vaguely defined “supervisory pow-

er” to dismiss the indictment here is contrary to that grant

of jurisdiction, as well as to the substantive provisions that

define the offenses charged, and the statutory provisions

20

punishing conspiracy to commit those offenses, 21 U.S.C.

846 and 963.

In addition, the supervisory authority claimed by the dis-

trict court effectively circumvents the provisions of the

Federal Rules of Criminal Procedure that govern the con-

tents of indictments (Rule 7), the joinder and severance of

offenses and defendants (Rules 8 and 14). and permissible

venues for prosecution (Rule 18; see also 18 U.S.C. 3237).

Neither the district court nor the court of appeals identified

any legal defect under these provisions or other previously

recognized legal principles that would warrant dismissal of

the indictment. Thus, the decision of the courts below “con-

fer[s] on the judiciary discretionary power to disregard the

considered limitations of the law that it is charged with

enforcing.” United States v. Payner, supra, 447 U.S. at

737, “[T]he supervisory power does not extend so rar.”

Ibid.

e. The decision of the court of appeals proceeds upon the er-

roneous supposition that the supervisory power claimed by

the district court must be made available to ensure that

federal prosecutors do not destroy the courts’ “ability to ad-

minister an effective criminal justice system” by initiating

unmanageable prosecutions (App. A, infra, 16a). There is

no warrant for this remarkable assumption. On the contra-

ry, the Department of Justice and the United States Attor-

neys have every incentive to ensure that complex indict-

ments are not obtained except to the extent necessary and

appropriate in carrying out their constitutional duty to

“take Care that the Laws be faithfully executed” (Art. II,

§ 3). The resources and personnel of federal prosecutors,

like those of the judicial branch, are limited.14 Given these

limited resources, federal prosecutors, confronted by the

'* It bears mentioning that the alternatives to a complex, multi-

defendant indictment as a means of prosecuting a large-scale conspir-

acy are either to refrain from indicting many persons believed to have

committed serious crimes or to break up the offense into a number of

separate indictments, each to be separately tried (as the district court

apparently would have preferred here). It is far from obvious, to say

the least, that multiple trials requiring many of the same witnesses to

testify about the same core events would realize the goal of economic

allocation of scarce criminal justice resources.

21

lash of the Speedy Trial Act, have powerful reasons to be

selective about the matters presented to a grand jury.

Even apart from constitutional considerations, it is the

prosecutor who is best situated to make necessary decisions

about the relative priority of various cases and to deter-

mine whether the public interest in effective administration

of the criminal justice system as a whole will be served by

going to trial upon a particular indictment. See United

States v. Lovasco, 431 U.S. 783, 792-795 (1977). Conspicu-

ous by contrast is the “lack of judicially discoverable and

manageable standards” (Baker v. Carr, 369 U.S. 186, 217

(1962)) by which courts can make these decisions.

The court of appeals noted that the hazards of going to

trial upon the indictment in this case include the possibility

of juror confusion and the likelihood of a mistrial (App. A,

infra, 20a & n.12). Neither of these outcomes serves the

prosecutor's interest. If the evidence does not support con-

viction of one or more defendants in a multiple defendant

conspiracy case, appellate reversal will follow. See, e.g.,

United States v. Bertolotti, supra. A mistrial also leads to

wasteful expenditure of scarce prosecutorial resources.

There is no reason to believe that federal prosecutors are

so insensitive to these hazards, and to the other incentives

for selectivity in prosecution that confront them, that it is

necessary to invent a wholly unprecedented supervisory

power to prevent the filing of unnecessarily complex

indictments.

2.a. Even if supervisory power were available in appro-

priate cases to dismiss indictments determined to impose

undue burdens upon judicial resources, there was no basis

whatsoever in the record of this case for that extreme

measure. Neither the court of appeals’ opinion nor the dis-

trict court’s oral ruling identifies any satisfactory basis for

dismissal of the indictment. The court of appeals noted

(App. A, infra, 20a; footnote omitted) the following “prac-

tical considerations attendant to a trial of this size and

complexity”:

15 Significantly, 18 U.S.C. 3161(h\(8C) makes clear that trial delay

attributable to calendar congestion is not excludable from Speedy Trial

Act reckoning.

22

innumerable pretrial motions, the occupation of weeks

of the cdurt’s busy calendar, the superhuman tasks fac-

ing the jury, and the likelihood of mistrial.

But the court of appeals did not explain why this case, more

than any other conspiracy charge, entails these hazards. It

plainly cannot be the law that those who commit complex

offenses are immune from prosecution for the full scope of

their criminal activity. Moreover, the indictment in this

case is not in fact unusually complex, given the nature of

the offenses found by the grand jury to have probably been

committed. The court of appeals, however, gave no consid-

eration to the nature of those offenses and the typically

elaborate patterns of international drug trafficking in up-

holding dismissal of the indictment.

There are no special factors in this case that suggest an

unusually complex or difficult motion practice. And while

we do not minimize the burden of a major trial upon a busy.

court’s calendar, it is the role of the courts to shoulder this

burden.'® We are particularly puzzled by the court’s invoca-

tion of the problem of juror confusion and the likelihood of

mistrial. Both courts below appear to have lost sight entire-

ly of the fact that respondent was to be the only defendant

at his trial.17 Even if there had been multiple defendants,

there would be no basis to question the district court’s abili-

ty to instruct the jury carefully as to the need properly to

determine the guilt of each individual defendant in a con-

Spiracy case, an everyday occurrence in the federal courts.

Accordingly, the court of appeals utterly failed to identify

any consideration that sets this case apart from a host of

cases that are regularly tried by the district courts.

'§ There is no suggestion in the record that the district court was ac-

tually unable to find time to try this case. We note, in any event, that

Congress has made provision for the temporary reassignment of judi-

cial personnel within the federal system whenever that is necessary to

ensure that judicial business is accomplished. See 28 U.S.C. (& Supp.

V) 291(b), 292(b) and (d), and 294.

'7 See, e.g., App. A, infra, 18a:

Of course, this problem—of the Government attempting to force

as many defendants as possible to trial in the same proceeding on

the claim of a single conspiracy * * * is one not faced by judges

in this circuit alone,

23

Nor did the district court identify any special considera-

tions that warranted its refusal to try this case when it

granted “acquittals” to defendants Brown, Work and

Snyder in 1976. Insofar as the court commented on this

subject at all, it pointed to particular difficulties experi-

enced in other cases that do not reflect any problem of in-

herent unmanageability, especially on the facts of the pres-

ent case. The court singled out the problem of repetitive

cross-examination (see pages 8-9, supra), but that had rela-

tively little bearing on the trial of Brown, Work and

Snyder, and has no bearing on the present case. In any

event, the federal courts possess authority to limit repeti-

tive cross-examination.!® Contrary to the district court’s

suggestion (see page 7, supra), the availability of such au-

thority to manage the proceedings before the court under-

cuts the claimed authority simply to dismiss cases present-

ing management difficulties. See United States v. Hasting,

supra, slip op. 6-7 & n.5; United States v. Morrison, 449

U.S. 361 (1981).

b. The district court’s recitation of grounds for invocation

of supervisory authority to dismiss the indictment in this

case raises concerns that go beyond its failure to identify

special circumstances that would warrant that extraordi-

nary relief under the court of appeals’ analysis. The district

court’s announced intention to commence general supervi-

sion of the contents of indictments (App. C, infra, 40a) is

utterly inconsistent with the constitutional independence of

the prosecutor. And it is perfectly clear from the district

18 Rule 611(a), Fed. R. Evid., gives the district courts broad discre-

tion to regulate “the mode and order of interrogating witnesses and

presenting evidence so as to (1) make the interrogation and presenta-

tion effective for the ascertainment of the truth, [and] (2) avoid need-

less consumption of time * * *.” The courts of appeals have repeatedly

held that it is within a trial judge’s discretion to bar unnecessary dupli-

cative cross-examination of government witnesses at multi-defendant

trials. See, ¢.g., United States v. Coven, 662 F.2d 162, 170 (2d Cir.

1981), cert. denied, 456 U.S. 916 (1982); United States v. Praetorius,

622 F.2d 1054, 1061 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980);

United States v. Miller, 463 F.2d 600, 601 (1st Cir.), cert. denied, 409

U.S. 956 (1972); Amsler v. United States, 381 F.2d 37, 51 (9th Cir,

1967). See also 3 J. Wigmore, Wigmore on Evidence § 782, at 183

(Chadbourn rev. 1970).

24

court’s remarks (id. at 3la, 38a, 41a) that the court intend-

ed to impose upon the prosecutor its own notion of good

prosecutorial practice. Equally disturbing are the repeated

statements by the district court that reflect its personal

disapproval of the individual United States Attorney’s

prosecutorial policies. These considerations, which appear

to have influenced the district court’s ruling, have no place

in the exercise of judicial authority.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

REX E, LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

JOHN FITCHTER DE PUE

Attorney

MAY 1983

la

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 80-1860

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

v.

STEPHEN A. GONSALVES, DEFENDANT-APPELLEE

Argued and Submitted Aug. 3, 1981.

Decided Nov. 9, 1982.

Appeal from the United States District Court for the Dis-

trict of Nevada.

Before ELY and NORRIS, Circuit Judges, and PECK-

HAM, * District Judge.

PECKHA\M, District Judge:

The Government appeals from the District Court’s order

of December 17, 1980, granting the motion to dismiss the

indictment on behalf of appellee-defendant Stephen An-

thony Gonsalves. Appellee had been charged along with

twelve other defendants and seventeen unindicted co-

conspirators for violation 21 U.S.C. § 963, Conspiracy to

Import a Controlled Substance, and 21 U.S.C. § 846, Con-

spiracy to Possess with Intent to Distribute a Controlled

Substance. Gonsalves’ alleged role was to act as a money

courier in one of the numerous financial transactions that

took place during the course of the charged conspiracy.

Four years earlier, the District Court had’ ordered a

judgment of acquittal in favor of three of appellee’s co-

conspirators who had been brought to trial on the same in-

dictment. Gonsalves had not been arrested as of that time.

However, on August 28, 1980, he surrendered to the

United States magistrate in Las Vegas, Nevada. On Sep-

*Honorable Robert F. Peckham, Chief United States District Judge,

Northern District of California, sitting by designation.

2a

tember 26, 1980, he filed a motion to dismiss the indictment

on the same grounds that had supported the previous

judgment of acquittal in favor of three of his alleged

co-conspirators.

The District Court, relying on its inherent supervisory

power to prevent undue interference with the effective ad-

ministration of justice, granted the motion on the grounds

that, inter alia, the indictment was an “unmanageable

monstrosity.” Under the particular facts of this case, and

for the reasons set forth below, we affirm the District

Court’s order of dismissal pursuant to its proper excercise

of supervisory power.

The Government has alleged an elaborate on-going con-

spiracy to import and distribute a controlled substance dur-

ing the period of January 1, 1973, to June 18, 1974. The

two-count indictment names a total of thirteen defendants,

Gonsalves among them, as well as seventeen co-conspir-

ators who were not named as defendants. According to the

Government, these individuals were engaged in a conspir-

acy to import and distribute hashish purchased from

England, the Netherlands, and other countries in Europe

and the Middle East. The Government alleges that the fol-

lowing scenario took place.!

In February of 1973, Ernest Franz Combs contacted

James Earl Gater in South Lake Tahoe, California. Combs

told Gater that, with the help of James Morris and others,

he was going to smuggle hashish from Europe into the

United States. In particular, Morris was to get some acous-

tical sound speaker cabinets specially manufactured so that

fiberglass sections filled with hashish could be fit into them.

After the cabinets were manufactured in England, they

were shipped to France where they were picked up by

Robert David Work, among others, and then loaded with

hashish.

' We emphasize that none of these charges have been established by

evidence. Upon review of an order dismissing an indictment, however,

the indictment must be tested by its sufficiency to charge an offense.

United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-175, 9

L.Ed.2d 136 (1962).’We must, therefore, accept all of the Govern-

ment’s allegations as true of the purposes of this appeal.

3a

Morris shipped the hashish-filled speaker cabinets from

Paris, France, to New York City on March 4, 1973. From

there they were shipped to Los Angeles. Gater was to meet

Richard Kenneth Brown at the Orange County Airport in

California and then proceed to a warehouse in San Pedro,

California, where the cabinets were to be delivered and un-

loaded. Brown had given Gater a carnet which he was to

show to the customs officials at Trans World Airlines

(TWA) Air Cargo at the Los Angeles International Airport

in order to pick up the cabinets.

On March 8, 1973, Gater picked up the hashish-filled

sound speaker cabinets at the Los Angeles airport in a

rented U-Haul truck and transported them to the ware-

house in San Pedro where Gater, Brown, and Work un-

loaded 724 pounds of hashish. After unloading the cabinets,

Brown gave Gater a kilo of hashish as compensation for

picking up the equipment. Furthermore, because Gater had

been involved in the operation, Combs told him that, if he

desired, he could invest between twenty and thirty thou-

sand dollars on the next shipment and receive a share of the

proceeds.

In early March of 1973, Combs again contacted Gater and

instructed him to go to Austria and rent a house that would

be used to collect the hashish. Combs agreed to allow Gater

to invest $20,000.00 in this venture. Combs told Gater that

Robert Carl Fry was to receive $50,000.00 to assist Gater

in Austria. Combs also explained that Gater was to fly to

Graz, Austria, and meet with Salim Inard Hraoui.

On March 12, 1973, Gater flew from South Lake Tahoe to

the Orange County Airport where he was picked up by

Brown. They went to Brown’s house where Gater was giv-

en approximately $300,000.00 in cash to take with him to

Graz. In Graz, Gater met with Karl Ferdinand Krug who

assisted him in finding a house to rent. After renting the

house, Fry arrived and Gater gave him the $300,000.00

which he was to use to purchase the hashish. Thereafter,

the hashish was purchased and was brought to the house

for packing in the sound speaker cabinets. During this peri-

od, Combs persuaded Gary Lynn Lickert to rent a U-Haul

truck and drive to San Pedro. Lickert loaded ten speaker

da

cabinets on the truck and delivered them to TWA air

freight to be sent to London, England.

The ten cabinets, along with other pieces of equipment,

were shipped by Raymond Barry Mayo from London to

Austria. Mayo then traveled to Austria where he and

Hraoui picked up the equipment and delivered it to the

house that Gater had rented. Gater, Fry, Mayo, and Hraoui

then loaded the ten sound speaker cabinets with hashish

and shipped them from Austria to Philadelphia,

Pennsylvania.

After this transaction, Fry had $120,000.00 left out of the

$300,000.00 sent by Combs to Austria to purchase hashish.

Fry gave the remaining money to Gater. The Government

claims that appellee Gonsalves instructed Gater to give the

money to Kent Giles Snyder.

After the cabinets had been shipped, Gater went back to

the United States where he met up with Snyder, Morris,

and Kenneth Graham Plinston. Upon arrival in the United

States, Gater went first to Brown’s house and then to

Comb’s house. Gater was paid $25,000.00 for his share of

this deal from Snyder.

In the latter part of May 1973, Combs asked Harold

Adrian Armstrong to take $140,000.00 in cash to London.

Combs instructed Armstrong to purchase a special suitcase

to carry the money. Gonsalves delivered the $140,000.00 in

cash to Armstrong which was to be given to Plinston in

London. After delivering the money, Armstrong returned

to the United States.

At the end of June 1973, Gater was again instructed to go

to Austria to consummate another hashish deal. According-

ly, Gater and Brenda Marie Sibson went to an apartment in

Newport Beach where they were met by Brown and

Combs. There, Combs gave $260,000.00 cash to Gater to

take to Austria.

On July 3, 1973, Klaus Warner met Gater and Sibson in

Graz, Austria. Warner gave Gater the keys to a vehicle

containing 140 kilograms of hashish, whereupon Gater paid

Warner $50,000.00 cash. Gater, Sibson, and Mayo then

loaded 420 kilograms of hashish in fiberglass inserts which

5a

were placed inside twelve accoustical sound speaker

cabinets.

A few days later, Mayo shipped twenty-three pieces of

sound equipment, including the twelve speaker cabinets, to

Chicago, Illinois, and retrieved the shipment there on July

18. Mayo then shipped the speakers to Las Vegas.

On August 21, 1973, Gater, Sibson, Mayo, and Richard

Jonathan Vickers loaded 500 pounds of hashish into sound

speaker cabinets in Italy. Thereafter, Vickers and Mayo

shipped thirty-four pieces of sound equipment, including

the speaker cabinets, to San Francisco. Morris received the

shipment at the San Francisco International Airport. On

August 31, Combs had Lickert take $297,000.00 in cash to

Amsterdam, Holland, and deliver the money to Gater and

Dennis Howard Marks.

In early September 1973, Gater, Marks, and others

packed 820 pounds of hashish into sixteen sound speaker

cabinets. That same day, Allen Richard White shipped

twenty-nine pieces of sound equipment, including the six-

teen sound speaker cabinets, from Holland to Detroit,

Michigan. Instead of being sent to Detroit, however, the

cabinets were sent through New York to Las Vegas. It was

at this point that the Government began its investigation.

On September 13, 1973, a United States Customs dog at

John F. Kennedy Airport in New York reacted to an odor

being emitted from a large wooden chassis of one of the

sound speaker cabinets. United States Customs Inspectors

opened the speaker cabinet and found sixty pounds of hash-

ish in the chassis of the speaker. An investigation deter-

mined that the speaker cabinet they discovered was one of

the twenty-nine pieces of freight destined for Las Vegas.

Investigation further disclosed that the remaining

twenty-eight pieces were on a TWA flight which was to

arrive in Las Vegas on September 13, 1973, at 12:37 p.m.

The shipment of the twenty-eight pieces had originated in

Amsterdam and arrived at JFK International in bond ship-

ment. The shipment was consigned to D & N Delivery Cor-

poration, McCarran International Airport, Las Vegas, for

delivery to Trans Atlantic Sound, Las Vegas. Special

Agent Fowler of the Drug Enforcement Administration

6a

(DEA) in New York notified the Special Agent in charge at

Las Vegas of these events. Special Agent Harlan Bowe

arrived at TWA freight at McCarran International on the

afternoon of September 13, 1973. Bowe, other DEA agents,

and a United States Customs Agent were directed to a

TWA agent who in turn directed the Customs agents toa

Pan Am air freight transportation crate. The crate con-

tained the twenty-eight pieces of freight. The freight con-

sisted of fifteen large wooden chassis containing speakers,

six wood frame chasis with a fiberglass coating, two music-

al instrument cases, and five metal trunks. A U.S. Customs

Supervisory Inspector advised the agents that the ship-

ment was still in U.S. Customs bond. The freight was re-

moved from the Pan Am crate and placed in a TWA and

United Airlines storage area.

Later that day, DEA agents opened a side panel to one of

the large speaker chassis. They found a fiberglass container

secreted in the compartment of the speaker. Inside the con-

tainer, they found individual packages containing hashish.

The speakers were repacked and the agents waited for

them to be picked up. The next day, Lickert went to D & N

Delivery Corporation and picked up the shipment. The

agents trailed Lickert briefly and then stopped his car and

arrested him. Lickert was indicted on September 27, 1973,

by a federal grand jury in Las Vegas. He was charged with

violation of 21 U.S.C. § 841(a)(1).2 On October 4, 1973, a

superseding indictment was returned charging Lickert with

the same offense. After a jury trial, he was found guilty.

As a result of the information supplied by Lickert and

others, along with further investigation by the DEA, a sec-

ond federal grand jury in Las Vegas returned a three-count

indictment on December 5, 1975, naming Gonsalves and fif-

teen other co-defendants. Count I of the indictment alleged

"21 U.S.C. § BA.

(a) Except as authorized by this subchapter, it shall be unlaw-

ful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance;

Ta

ninety-three separate overt acts in furtherance of an elabo-

rate drug conspiracy. Counts li and III relied upon an al-

ternative theory of aiding and abetting the drug importa-

tion and possession.

The District Court was able to acquire jurisdiction only

over defendants Richard Kenneth Brown, Robert David

Work, and Kent Giles Snyder.® On February 11, 1976, the

District Court granted the Government’s motion to dismiss

Counts IJ and III of the indictment pursuant to rule 48(a),

Fed.R.Crim.P.4 Thereafter, the three defendants moved to

dismiss the remaining count on the ground that it imper-

missibly charged two separate conspiracies in violation of

rule 8(a), Fed.R.Crim.P.5 The District Court agreed and

dismissed the indictment on that basis. Moreover, the court

set forth specific concerns it held regarding the allegations

in Count I and their complexities:

Count I of the indictment now dismissed names 16

defendants. Ten of the defendants are citizens of other

countries and not amenable to the process of this

Court and, according to the Government, there is no

way in which they can be compelled to appear before

this Court pursuant to treaty between the United

States and the countries of which they are citizens. Of

the 6 defendants that are citizens of the United States,

3'The main conspirators, Ernest Franz Combs, James Morris, and

Kenneth Graham Plinston, were not before the court. Morris and

Plinston are residents of foreign countries, While Combs apparently re-

mains a fugitive.

4 Fed.R.Crim.P., Rule 48. Dismissal

(a) By Attorney for Government. The Attorney General or the

United States attorney may by leave of court file a dismissal of

an indictment, information or complaint and the prosecution shall

thereupon terminate. Such a dismissal may not be filed during

the trial without the consent of the defendant.

> Fed.R.Crim.P., Rule & Joinder of Offenses and of Defendants

(a) Joinder of Offenses. Two or more offenses may be charged

in the same indictment or information in a separate count for

each offense if the offenses charged, whether felonies or misde-

meanors or both, are of the same or similar character or are

based on the same act or transaction or on two or more acts or

transactions connected together or constituting parts of a com-

mon scheme or plan.

Sa

only 3 are before this Court, the other 3 are fugitives

and the Government cannot assure the Court as to

whether or not pending bench warrants will ever be

served upon them. The indictment names some 14 co-

conspirators who are not defendants and alleges 93

separate overt acts alleged to have taken place in the

United States and many foreign countries.

Rule 7(c)(1) of the Federal Rules of Criminal Proce-

dure reads:

“The indictment or the information shall be a plain,

concise and definite written statement of the essential

facts constituting the offense charged.”

The Court hopes that in representing the matter to

the Grand Jury United States Attorney Lawrence

Semenza will make some effort at least to comply with

the requirements of Rule 7(c)(1) and, in addition, to

give the Court a case that is manageable for trial.

Count I of the indictment now dismissed is, to say the

least, a monstrosity.

Subsequent to the dismissal of the original indictment,

the grand jury returned the present two-count indictment,

Cr. LV 76-89, on March 25, 1976, charging appellee Gon-

salves, among others, with violations of 21 U.S.C. § 846,

Conspiracy to Possess with Intent to Distribute a Con-

trolled Substance, and 21 U.S.C. § 968, Conspiracy to

Import a Controlled Substance. As this was a superseding

indictment, the District Court allowed all motions and re-

sponsive pleadings filed in Cr. LV 75-198 to be filed in Cr.

LV 76-39.

The jury was empaneled on September 20, 1976, and the

Government and attorneys for defendants Brown, Work,

and Snyder each made their opening statements. The fol-

lowing day, the court granted a Rule 29(a) motion for judg-

ment of acquittal as to each of the three defendants. The

order of judgment of acquittal stated simply that it was

based upon the Government’s trial memorandum and open-

ing statement. The transcript, however, informs us that

the trial judge was concerned with at least three related

problems raised by the indictment. (1) The indictment

impermissibly alleged separate multiple conspiracies as a

single conspiracy. (2) Viewed as multiple conspiracies, the

Ya

District Court for the district of Nevada lacked jurisdiction

to try the offenses as alleged with respect to the three de-

fendants because of lack of contact with Nevada. (3) The in-

dictment encompassed an “unmanageable monstrosity” of

proof and events so as to interfere unduly with the effective

administration of justice and to require dismissal under the

“supervisory powers” of the District Court. The transcript

makes clear, however, that the court rested its decision pri-

marily on the unmanageable nature of the indictment and

not on the issue of jurisdiction.®

The Government appealed the District Court’s granting

of the Rule 29(a) motion on October 1, 1976. Another panel

of this court dismissed that appeal on May 4, 1977, based on

the fact that jeopardy had attached. On July 11, 1977, the

Government filed a petition for an out of time rehearing

and a motion to recall the mandate which had previously is-

sued. These requests were denied by the panel citing the

substantial delay and the failure of the Government to pres-

ent adequate justification for the delay.

On August 28, 1980, appellee Gonsalves surrendered to

the United States Magistrate in Las Vegas and was re-

leased on bond. The matter was set for trial on the same

two-count indictment which was the subject of the previous

judgment of acquittal for defendants Brown, Work, and

Snyder. Subsequently, appellee moved to dismiss the in-

dictment for the reasons articulated by the District Court

as its basis for granting the previous judgment of acquittal,

i.e., the allegation of multiple conspiracies on the face of

the indictment, lack of jurisdiction, and unmanageability.

Appeallee also filed without objection a supplemental mem-

orandum of points and authorities which set forth for re-

view by the District Court the signed statements of the

three predominant Government witnesses. These state-

ments, which were voluminous, purportedly supported ap-

pellee’s previously stated three grounds for dismissal.

6 The court stated that the question was “quite apart from jurisdic-

tion.” Assuming all of the overt acts occurred in Nevada, the court

reasoned, the court’s inherent authority allowed it to step in “to the

extent it is necessary to bring order out of chaos.” See Excerpt of Ree-

ord at 63-64.

10a

On December 17, 1980, the District Court exercising

What it labeled its “discretionary supervisory powers,” dis-

missed the indictment. The following day the Government

filed its notice of appeal. Our task is to determine whether

the dismissal of the indictment was a proper exercise of su-

pervisory power by the District Court.

Il. SUPERVISORY POWER

Supervisory power first appeared as an independent ba-

sis of decision in the federal judiciary in McNabb v. United

States, 318 U.S. 332, 340-47, 63 S.Ct. 608, 612-616, 87

L.Ed. 819 (1943). In McNabb, the Supreme Court, relying

on the authority of its supervisory power over the adminis-

tration of the criminal justice system, excluded relevant ev-

idence from a federal criminal prosecution because federal

police and investigators had obtained it illegally. The Court

described its supervisory authority over federal courts as a

basis of decision resting neither on constitutional nor on

statutory grounds. Since then “supervisory power” has

been used to cover a broad range of judicial actions and has

been exercised by all three levels of the federal judiciary

for the purposes of (1) formulating new rules of cae ss of

general application, (2) enforcing judicial compliance with

already existing standards of fairness, and (3) avoiding a

miscarriage of justice in particular cases where already ex-

isting procedures have proved inadequate. See Note, The

Judge-Made Supervisory Power of the Federal Courts, 53

Geo.L.J. 1050 (1965). From the outset, notions of fair play

which are more exacting than the minimum constitutional

requirements of due process have been the primary moving

force behind the exercise of judicial supervisory power. The

doctrine is now commonly invoked to refer generally to the

court’s inherent power to preserve the integrity of the judi-

cial process.

The “tainted evidence” doctrine remains perhaps the

most well-known rule of law which traces its origin to the

Supreme Court’s supervisory power. McNabb, supra, 318

U.S. at 341, 63 S.Ct. at 618. See United States v. Payner,

447 U.S. 727, 744 100 S.Ct. 2439, 2450, 65 L.Ed.2d 468

». (G

(1980). Courts also use their supervisory power to exclude

lla

unreliable evidence from trial. Mesarosh vy. United States,

352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); Communist

Party of the United States v. Subversive Activities Control

Board, 351 U.S. 115, 124, 76 S.Ct. 663, 667, 100 L.Ed. 1003

(1956). In addition, the supervisory power has been used to

impose upon prosecutors the duty in certain cases to make

available to a defendant information from their files.

Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007,

1L.Ed.2d 1103 (1957).

The inherent supervisory authority of federal courts has

been used to do justice in particular fact situations that do

not lend themselves to rules of general application. For ex-

ample, in Grunewald v. United States, 353 U.S. 391, 77

S.Ct. 963, 1 L.Ed.2d 931 (1957), the defendant refused to

testify before a grand jury, invoking the fifth amendment

privilege against self-incrimination. However, he later tes-

tified on the same subject-matter at his trial. Cross-

examination by the prosecutor revealed the plaintiffs

earlier refusal, but the Supreme Court held the permitting

of such cross-examination to be reversible error. The ma-

jority held that “under the circumstances of this case” the

possibility of prejudice was great enough to warrant the

Court’s invocation of its supervisory power. See also

Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3

L.Ed.2d 1250 (1959) (exercise of supervisory power to pro-

tect against prejudice turns on facts of each case); Note,

The Supervisory Power of the Federal Courts, 76

Harv.L.Rev. 1656, 1659 (1963).

In recent years, the Ninth Circuit has affirmed its will-

ingness to utilize its supervisory powers to review the dis-

missal of an indictment by a trial court when necessary “to

protect the integrity of the judicial process.” United States

v. Chanen, 549 F.2d 1306, 1309 (9th Cir.), cert. denied, 434

U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977), quoting

United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969).

While such dismissals have been based occasionally on con-

stitutional grounds, United States v. Basurto, 497 F.2d 781

(9th Cir. 1974), more often we have invoked our inherent

supervisory power, United States v. Owen, 580 F.2d 365

(9th Cir. 1978), United States v. Samango, 607 F.2d 877

12a

(9th Cir. 1979). Indeed, over twenty years ago this court

stated that a trial court may have legal discretion to dis-

miss an indictment “to do justice,” even in the absence of

express statutory authority. United States v. Apex Distri-

buting Co., 270 F.2d 747, 756 (9th Cir. 1959).7 See also

United States v. De Diego, bil FF .2e 81S. B24 n. 8 Ee OM

Cir. 1975). In the realization that the dismissal of an indict-

ment by a trial court may encroach on the prosecutor’s pre-

rogatives, however, this court has further held that the

trial court may not exercise such “supervisory power” un-

less there is “a clear basis in fact and law for doing so.”

Chanen, supra, 549 F.2d at 1313.

Reliance upon this court’s supervisory power with re-

spect to dismissals can be seen clearly in cases involving

prosecutorial misconduct in securing indictments. In

United States v. Basurto, supra, a panel of this court held

that the defendants’ right to due process was violated

where they had to stand trial on an indictment which the

Government knew was based in part on perjured testimo-

ny. It was stated that permitting trial on such an indict-

ment failed to comport with the required “fastidious regard

for the honor of the administration of justice.” Jd. at 787,

quoting Communist Party v. Subversive Activities Control

Bd., supra, 351 U.S. at 124, 76 S.Ct. at 667 (1956). In a

special concurrence, Judge Hufstedler accepted the result

reached by the majority, but declined to rely upon a consti-

tutional theory as the basis for the decision. Instead, she

relied upon “our power to supervise the administration of

criminal justice in the federal courts.” Basurto, supra, 497

F.2d at 793. “An important function of our supervisory

7 United States vy. Aper Distributing ('o., supra, involved a Govern-

ment refusal to comply with subpoenas duces tecum and court orders

requiring it to produce certain materials before a criminal trial. The

District Court responded by ordering a dismissal with prejudice. On

review, the appellate panel agreed that the United States had essen-

tially caused an “unnecessary delay” in bringing appellees to trial. Ac-

cordingly, the circuit court held that the trial court could have proper-

ly invoked its power to dismiss under rule 48(b), Federal Rules of

Criminal Proceduve. Alternatively, the trial court “may simply have

purported to act in the exercise of its inherent power to do justice.”

270 F.2d at 755-56.

l3a

power is to guarantee that federal prosecutors act with due

regard for the integrity of the administration of justice.”

Id.

Subsequent to Judge Hufstedler’s concurrence, this court

has supported the reasoning set forth therein in a number

of cases involving prosecutorial misconduct. In United

States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978), for ex-

ample, we explicitly held that, pursuant to its inherent su-

pervisory power, a federal court Is empowered to dismiss

an indictment on the basis of governmental misconduct.

“As such, dismissal is used as a prophylactic tool for dis-

couraging future deliberate governmental impropriety of a

similar nature.” Jd., citing Elkins v. United States, 364

U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960)

and United States v. Houghton, 554 F.2d 1219, 1224 (Ist

Cir. 1977), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54

L.Ed.2d 120 (1977).

In this case, however, prosecutorial misconduct cannot

form the basis for upholding the District Court’s dismissal.

Although the motives of the United States Attorney have

been questioned by the trial judge in this case,® no allega-

tion of prosecutorial misconduct as such has been pre-

sented.? Rather, the District Court focused on the sheer

8 See, e.g., Excerpt of Record at 54-59, 57, 6I, 7.

’ Moreover, we recognize that, although dismissal is a permissible

exercise of a court’s supervisory power in cases involving prosecutorial

misconduct, this power is more often discussed than invoked. See

Samango, 607 F.2d at 881; Owen, 580 F.2d at 367. Of the cases cited in

Chanen in which prosecutorial conduct was allegedly inimical to the in-

tegrity of the judicial process, dismissal was warranted only in those in

which the prosecutorial conduct was patently egregious. Chanen, 549

F.2d at 1309-12. See, e.g., United States v. Estepa, 471 F.2d 1132 (2d

Cir.1972); Laughlin v. United States, 385 F.2d 287 (D.C.Cir. 1967),

cert. denied, 390 U.S. 1008, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968);

United States v. Wells, 163 F. 313 (D.Idaho 1908); United States v.

DeMarco, 401 F.Supp. 505 (C.D.Cal.1975), affd, 550 F.2d 1224 (9th

Cir.), cert. denied, 484 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977);

United States v. Gallo, 394 F.Supp. 310 (D.Conn. 1975). See also

United States v. Rasheed, 663 F.2d 848, 853 (9th Cir.1981), cert.

denied, U.S. 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982).

l4a

unmanageable complexity of the indictment in invoking its

supervisory powers.

As we discussed above, however, the inherent superviso-

ry power of the federal courts may be invoked to do justice

in particular fact situations. See United States v.

Samango, supra, 607 F.2d at 884: Note, The Supervisory

Power of the Federal Courts, supra. But the decision of

whether to exercise the court’s power in a particular case

obviously must be made on a principled basis. For example,

in Chanen it was noted that, even absent prosecutorial

misconduct, a district court has a discretionary power to

dismiss an indictment under limited circumstances where

the court determines that dismissal is necessary to ensure

fundamental fairness. Although in this case we review an

exercise of supervisory power based on institutional con-

cerns, Chanen’s analysis is instructive. Before determining

that dismissal was not warranted in that case, the court an-

alyzed the dynamics of the constitutional scheme of separa-

tion of powers and the role of judicial supervisory power.

The opinion explained that the court and the prosecutor

play limited, but supportive and complimentary roles vis-a-

vis indictments. After delineating the respective roles of

the court and the prosecutor,!° the court then described the

'® As a practical matter, the grand Jury generally relies on the pros-

ecutor to determine what witnesses to call. Also. in practice the prose-

cutor conducts the examination of the witnesses and otherwise deter-

mines what evidence to present before the grand jury. [citations] In

addition, it is the prosecutor who normally prepares the indictment,

[citation] although of course the grand Jury must review the indict-

ment and adopt it as its own. [citation] Some of these funetions—such

as initiating a criminal case by presenting evidence before the grand

Jury—qualifies as “an executive function within the exclusive preroga-

tive of the Attorney General.” [citations]

The court, on the other hand, exercises its power to summon wit-

nesses to attend and to give testimony before the grand jury. Also, “it

is the court which must compel a witness to testify if, after appearing,

he refuses to do so.” [citation] In addition, the court exercises a form

of authority over the grand jury when, for example, it dismisses an in-

dictment for failure to charge all elements of the offense or to warn the

defendant fairly of the charge against which he must defend. [citation]

Likewise, the court exercises authority over the prosecutor when it

dismisses an indictment because of prosecutorial misconduct.

United States v. Chanen, supra, 549 F.2d at 1312-13.

15a

standard upon which the courts should rely in exercising

their inherent supervisory power:

(Gliven the constitutionally-based independence of

each of the three actors—court, prosecutor and grand

jury—we believe a court may not exercise its “super-

visory power” in a way which encroaches on the pre-

rogatives of the other two unless there is a clear basis

in fact and law for doing so. If the district courts were

not required to meet such a standard, their “supervi-

sory power” could readily prove subversive of the doc-

trine of separation of powers.

Chanen, supra, 549 F.2d 1313 (citation omitted).

We feel similarly compelled to perform a detailed analy-

sis of the source and scope of a trial court’s supervisory

power before making the determination whether the power

was properly invoked in the instant case.

As the Chanen court suggested, the source of the super-

visory power doctrine in its present form is found in the

complementary principles of separation of powers and

checks and balances. The principle of separation requires

that the judiciary, executive, and legislature be independ-

ent. The principle of balance requires that the three

branches pursue inconsistent and conflicting goals. As Pro-

fessor Nagel has explained:

Separation of powers relies on the implementation of

an “intellectual distinction” among the three major

functions of government to ... [prevent tyrannical use

of power]; accordingly the relevant case law is replete

with assertions that the branches of government must

be kept distinct and each must not interfere with the

functioning of the others. In contrast, the doctrine of

checks and balances buttresses the conceptual distinc-

tions among the functions of government by providing

for direct intervention by each branch into the func-

tioning of the others; power can be checked only if it is

shared ... For historical, pragmatic and conceptual

reasons, American scholars have tended to favor a

theory of constitutional balance over the theory of sep-

aration of powers.

Nagel, Separation of Powers and the Scope of Federal Eq-

uitable Remedies, 30 Svan.L. Rev. 661, 682 (1978).

l6a

The authority for a court’s exercise of its supervisory

power, therefore, can be traced to the structural balance

articulated in Article III of the United States Constitution.

See Note, A Separation of Powers Approach to the S uper-

visory Power of the Federal Courts, 34 Stan.L.Rev. 427,

443 (1982). It is clear that Article III authorizes the judicial

branch to review the operations of the executive and legis-

lative branches. Marbury v. Madison, 5 U.S. (1 Cranch)

137, 2 L.Ed. 60 (1803); Youngstown Sheet & Tube Co. vy.

Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).

Indeed, inter-branch review is a necessary function within

the principle of checks and balances.

The principle of “checks and balances” embodies the

notion that power can be checked only if it is shared;

each branch has the right, if not the affirmative duty,

to curb the excesses of the others. Therefore, the su-

pervisory power emanates from the exercise of concur-

rent powers by the legislature, the executive, and the

courts.

34 Stan.L. Rev. at 443-44.

The judiciary therefore should use its supervisory power

to maintain its own institutional integrity, including the

ability to administer an effective criminal justice system, as

well as to maintain the institutional power of all three

branches of government. The courts must not abdicate

their responsibility to check the governmental excesses of

the executive and the legislature;!! the invocation of super-

visory power may occasionally provide the necessary re-

straint of these excesses.

'' As Professor Abraham Goldstein has perceptively noted, courts

often mistakenly interpret the separation of powers to preclude any

judicial role in prosecutorial discretion.

|-Fudicial passivity]... is rooted in a misunderstanding of the re-

lation between the concept of discretion itself and the separation

of powers. The absence of a clear-cut legal rule defined by the

legislature is treated by the court lows the prosecutor

not only with discretion to fill the interstices in the rule but with

an exclusively “executive” authority to do so.

A. Goldstein, The Passive Judiciary: Prosecutorial Discretion and the

Guilty Plea 57 (1981).

17a

This analysis also provides us with a means of determin-

ing the proper scope of the court’s exercise of supervisory

power in this case. When a court determines that institu-

tional interests relating to judicial economy and the man-

ageability of cases are threatened by pursuit of a particular

indictment, it is appropriate to balance those interests with

those of the executive in preservation of prosecutorial dis-

cretion, and to weigh the relative intrusiveness of action by

each branch on the other’s inherent functions. Specifically,

we must determine whether the District Court’s exercise of

supervisory authority in this case unduly intruded into the

domain of the executive branch, or, alternatively, whether

the proposed actions of the prosecutor would have unduly

disrupted the District Court’s administration of justice.

Following Chanen, we inquire whether the balance struck

by the District Court between the conflicting interests of

the two branches has a clear basis on the facts of this case

and under the relevant legal precedent. We proceed with

this endeavor in light of the District Court’s order of

dismissal.

The trial court’s order of dismissal stated in part:

For purposes of deciding the pending motion, this

Court need not decide if collateral estoppel bars the

Government from bringing this indictment against

Gonsalves. After all, different defendants were in-

volved in the Brown [359 U.S. 41, 79 S.Ct. 589, 3

L.Ed.2d 609 (1959)] decision. Thus, this Court did not

necessarily determine that it would refuse to exercise

jurisdiction over any of the other defendants.

This Court is well aware that a conspiracy prosecu-

tion may be brought in any district in which any act in

furtherance of the conspiracy was committed by any of

the conspirators, even though some of them were nev-

er physically present there. Title 18, U.s.0..,

§ 3237/(a); Wright, Federal Practice and Procedure:

Criminal § 303, pp. 589-90. And, the actions in Las

Vegas of Ernest Franz Combs, Jr., an indicted

coconspirator, and Gary Lynn Lickert, an unindicted

coconspirator, could be used to establish the necessary

overt act within this district. However, the problem in

Brown was that the indictment was such a complex

lSa

monstrosity that this Court decided it should have

been broken down into several smaller, more manage-

able indictments. There simply was no good reason for

those defendants to be indicted in this district given

their alleged roles in the Government’s conspiracy

theory. This Court is confronted with the same prob-

lem with the indictment against Gonsalves.

Therefore, for the same reasons articulated in this

Court’s September 21, 1976, order and judgment of ac-

quittal as to defendants Brown, Work and Snyder, this

Court hereby exercises its discretionary supervisory

powers and dismisses the indictment as against de-

fendant Gonsalves.

Thus, the main ground given by the District Court judge

for dismissing the indictment in this case was that it was

“such a complex monstrosity” as to be unmanageable. The

transcript of the hearing in which the order of judgment of

acquittal was entered on behalf of Brown, Work, and

Snyder reflects vividly the fact that the trial judge had had

previous experience with massive conspiracy trials which

broke down because of their size. Of course, this prob-

lem—of the Government attempting to force as many de-

fendants as possible to trial in the same proceeding on the

claim of a single conspiracy when the criminal acts could be

more reasonably regarded as two or more conspiracies—is

one which is not faced by judges in this circuit alone. In the

Second Circuit, for example, one panel found it necessary

to issue the following warning t. ‘he United States Attor-

ney’s Office:

In view of the frequency with which the single con-

spiracy vs. multiple conspiracies claim is being raised

on appeals before this court, see United States vy.

Rizzo, 491 F.2d 12345 (2 Cir.1974); United States v.

De Marco, 488 F.2d 828 (2 Cir. 1973); United States v.

Mapp, 476 F.2d 67 (2 Cir.1973), we take this occasion

to caution the government with respect to future pros-

ecutions that it may be unnecessarily exposing itself to

reversal by continuing the indictment format reflected

in this case. While it is obviously impractical and inef-

ficient for the government to try conspiracy cases one

defendant at a time, it has become all too common for

the government to bring indictments against a dozen

19a

or more defendants and endeavor to force as many of

them as possible to trial in the same proceeding on the

claim of a single conspiracy when the criminal acts

could be more reasonably regarded as two or more

conspiracies, perhaps with a link at the top. Little

time was saved by the government’s having prose-

cuted the offenses here involved in one rather than

two conspiracy trials. On the contrary, many serious

problems were created at the trial level, including the

inevitable debate about the single conspiracy charge,

which can prove seriously detrimental to the govern-

ment itself. We have already alluded to our problems

at the appellate level, where we have had to comb

through a voluminous record to give adequate consid-

eration to the claims of eleven separate appellants.

United States v. Sperling, 506 F.2d 1323, 1340-41 (2d

Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 4&

L.Ed.2d 439 (1975) (footnotes omitted). When the Govern-

ment failed to heed the admonition, the court did in fact

rely on Sperling in reversing the convictions of seven de-

fendants convicted of conspiracy to violate the federal nar-

cotics laws. United States v. Bertolotti, 529 F.2d 149, 151

(2d Cir.1975).

The District Court in this case had an ample factual and

legal basis upon which to conclude that the indictment pur-

sued by the prosecutor constituted a serious intrusion into

the judiciary’s interest in the fair administration of the

criminal justice system. See Payner, supra, 447 U.S. at

735 n. 7, 100 S.Ct. at 2446 n. 7; McNabb, supra, 318 U.S.

at 340, 63 S.Ct. at 612. Faced with the same complex in-

dictment, and with the benefit of lengthy trial briefs, the

opening statements of counsel, and the volumes of Govern-

ment witness statements, the trial judge entertained the

same serious concerns about the sheer impossibility of a

manageable, fair trial that he expressed earlier in connec-

tion with Brown, Work, and Snyder. Our own review of the

record, and indeed our mere recitation of the elaborate

facts of the conspiracy outlined in the indictment, see Part

| supra, show that the facts here justified the conclusion

that to allow prosecution on this indictment would ‘gravely

impair the basie function of” the District Court.

20a

The court was not required to ignore the practical consid-

erations attendant to a trial of this size and complexity,

e.g., the innumerable pretrial motions, the occupation of

weeks of the court’s busy calendar, the superhuman tasks

facing the jury,!? and the likelihood of a mistrial. On the

facts of this case the judge had a solid basis upon which to

find the prospect of these horrors real and the resulting dis-

ruption of the judicial process great.

In contrast, the degree of encroachment upon the prerog-

atives of the prosecutor that a dismissal entails in this case

is minimal. Although the court’s order is not entirely ex-

plicit, it is clear that the indictment was dismissed without

prejudice. The order suggested that the indictment be bro-

ken down into smaller, more manageable indictments, thus

leaving the prosecutor free to reindict Gonsalves, and the

other alleged conspirators, in a manner less intrusive upon

the administration of a fair criminal justice system in the

courts. !3

The Government argues that a court never has the right

to dismiss an indictment on the grounds of unmanage-

ability, even if the dismissal is without prejudice. In sup-

port of this claim, it cites United States v. Olson, 504 F.2d

1222 (9th Cir.1974).!4 The trial judge in Olson had ob-

'2 As reflected in the transcript, one of the court’s major concerns

was the “dragnet effect” of complex conspiracy cases and the ability of

a jury to digest and comprehend the evidence relevant to the defend-

ant. See Excerpt of Record at 62-63.

'S The District Court recognized that when broken down into small-

er conspiracies, indictment against some of the defendants may not re-

sult in proper venue in the Nevada District Court. See Excerpt of Ree-

ord at 383-84 (Order dismissing the indictment against Gonsalves).

'* The Government cites other cases which it claims support its ar-

gument that the District Court’s exercise of supervisory power in this

case was improper: United States v. Wilson, 614 F.2d 1224 (9th

Cir.1980), United States v. Welch, 572 F.2d 1359 (9th Cir.), cert.

denied, 439 U.S. 842, 99 S. Ct. 183, 58 L.Ed.2d 140 (1978); United

States v. Hall, 559 F.2d 1160 (9th Cir.1977), cert. denied, 435 U.S.

942, 98 S.Ct. 1523, 55 L.Ed.2d 539 (1978). Olson, however, while not

controlling, is clearly the most relevant to the instant case. It is the

only case cited by the Government that addresses the issue of the

United States Attorney presenting unmanageable and overly-

burdensome indictments to the courts.

21a

served that the United States Attorney in his district con-

sistently presented to the grand jury overly lengthy indict-

ments which served to burden the court with extended jury

~

trials and compiex jury instructions. The judge’s solution

was to attempt to force the prosecutor to pare down the in-

dictment before trial to conform to the judge’s desires.

Hall involved a defendant who had already served a one-year term

for smuggling which had been granted on the condition that he “con-

sent” to the entry of a civil decree of forfeiture of the merchandise. De-

fendant appealed and secured a dismissal of the indictment after which

he was reindicted for the same offense. The District Court dismissed

the indictment on the ground that it would be “unconscionable to pro-

ceed further” and retry the defendant. The appellate panel held, inter

alia. that “unconscionability” was not a proper basis for the District

Court’s exercise of its inherent supervisory power since there was

Ninth Circuit authority to the effect that “merciful inclinations” were

not a sufficient basis for substituting judicial discretion for prosecuto-

rial discretion in dismissing an indictment. See United States v. Real,

446 F.2d 40 (9th Cir.1971). Moreover, the court noted that the Su-

preme Court had approved of reindictment and retrial under circum-

stances analogous to the case before it in North Carolina v. Pearce,

395 U.S. 711, 89 S.Ct. 2072, 23 L. Ed.2d 656 (1969). The case at bar, on

the other hand, does not involve any issue of “unconscionability” or

“merciful inclinations.” Moreover, unlike the situation in Hall, there is

no controlling authority on the issue of “unmanageability.” Finally, in

Hall and Real the trial court sought to prevent the indictment of the

defendant; the trial court in the instant case simply refused to allow

the prosecution of Gonsalves pursuant to this indictment.

In Welch, the defendant was convicted in federal district court of

unlawfully transporting a firearm in interstate commerce and posses-

sion of a sawed-off shotgun. He appealed on the ground that it was

against Justice Department internal policy to try him in federal court

for the same act on which he had already been indicted (later dis-

missed) in state court. The appellate court affirmed the conviction,

relying on a prior Ninth Circuit case which had held that a federal

court has no authority to determine whether a federal prosecution vio-

lates an in-house policy of the Attorney General.

Wilson also involved a defendant who challenged her conviction on

the ground that the United States Attorney's Office contravened its

own guidelines, in this case by serving a forthwith subpvena on her

only two hours before she was to appear before a grand jury. The court

of appeals, relying in part on Welch, held that the guidelines in the

United States Attorney’s Manual do not have the force of law. More-

over, on a practical level the court held that the use of the forthwith

subpoena under the facts before it was not an abuse of discretion.

Welch and Wilson obviously provide no authority for the resolution of

the issues presented in this case.

22a

When the Government refused to elect one out of the four

counts on which to proceed to trial, the District Court dis-

missed the entire indictment with prejudice.

Olson is distinguishable in that the District Court’s ra-

tionale for its order of dismissal was solely that it was

“highly improbable” that the court would impose consecu-

tive sentences and that a conviction on all four counts was

therefore unnecessary. The Government refused to elect on

the grounds that (1) there was no showing that the joinder

of the four counts and their simultaneous trial would preju-

dice either defendant or the Government, and (2) the elec-

tion of the conspiracy count would not shorten the trial be-

cause the principal evidence to be produced—tape recorded

conversations of the defendant and an informant—would

also support the three remaining substantive counts. The

prosecution claimed it would be impossible to play the tape

recordings without the jury hearing information which

would support all four counts.

Olson therefore does not support the proposition that a

trial judge may never dismiss an indictment on the basis of

unmanageability. Rather, Olson stands for the proposition

that a dismissal with prejudice is not an appropriate exer-

cise of a court’s supervisory power when a prosecutor fails

to heed the court’s “suggestion” that all but one of a num-

ber of counts of an indisputably valid indictment be

dropped. No practical or legal grounds supported the sum-

mary dismissal in that case; indeed, such drastic action by

the District Court on the basis of such facile reasoning in-

truded unduly on the historic role of the prosecutor. Olson,

therefore, and other cases on which the Government relies,

are distinguishable on the basis that a complete termination

of the criminal prosecution, i.e., a dismissal with prejudice,

entails an undue intrusion into prosecutorial prerogatives.

See, e.g., United States v. Hall, 559 F.2d 1160, 1165 (9th

Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1523, 55

L.Ed.2d 539 (1978) (district court judge has no power to

dismiss indictment on ground “it would be unconscionable

to proceed further”); United States v. Real, 446 F.2d 40

(9th Cir.1971) (district court judge improperly dismissed in-

dictment on ground of “merciful inclinations” toward de-

23a

fendant).!5 Such dismissals may easily constitute an exam-

ple of the improper substitution of judicial discretion for

prosecutorial discretion. It remains the prerogative and re-

sponsibility of the executive to determine whether to prose-

cute at all. In contrast, the district judge in this case left

the Government free to reindict the defendant, either in

the same district pursuant to a more manageable indict-

ment. or in another district, should a new indictment reveal

a lack of jurisdiction over this particular defendant.

We conclude, therefore, that the intrusiveness of this

cumbersome indictment on the judicial machinery is so

great, while that on prosecutorial discretion so slight, that

the district court did not abuse its discretion in using its in-

herent supervisory powers to dismiss the indictment.

AFFIRMED.

24a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Crim. LV 76-39 RDF

Received and Filed: Dec. 17, 1980

UNITED STATES OF AMERICA, PLAINTIFF

(om

STEPHEN ANTHONY GONSALVES, ET AL. DEFENDANTS.

ORDER GRANTING MOTION TO DISMISS

INDICTMENT ON BEHALF OF

DEFENDANT GONSALVES

The defendant Stephen Anthony Gonsalves has been

charged by a two-count indictment. Count I charges a con-

spiracy to import a controlled substance, and Count I]

charges a conspiracy to possess with intent to distribute a

controlled substance. Both counts allege that on or about

May 25, 1973, the defendant delivered to Harold Adrian

Armstrong in Long Beach, California, approximately

$140,000 in cash. The cash ostensibly was used to purchase

controlled substances as part of an international conspiracy

to smuggle controlled substances.

Defendant has moved this Court for an order dismissing

the indictment for three separate, but related, grounds (1)

each count of the indictment impermissibly charges sepa-

rate multiple and distinct conspiracies as a single conspir-

acy, (2) this Court lacks jurisdiction to try the offenses as

alleged against Gonsalves, and (3) the indictment unduly in-

terferes with the effective administration of justice so as to

require dismissal under this Court’s inherent supervisory

powers. He claims that collateral estoppel requires dismiss-

al of the indictment.

The indictment against Gonsalves is the very same in-

dictment that was at issue in this Court’s previous decision

in United States v. Brown, et al., Cr. LV 76-39 RDF (Sep-

25a

tember 21, 1976). In that previous decision, this Court en-

tered an order and judgment of acquittal pursuant to Rule

29(a), FRCrP, as to Brown, Work and Snyder, the only

three defendants who were before the Court at that time.

The decision not to exercise jurisdiction was based upon the

Government’s trial memorandum and opening statement in

light of the monstrous complexity of the case. The same

three grounds of dismissal relied upon for that decision are

now asserted by Gonsalves for dismissal of the indictment

as against him. The Government’s opposition to his motion

merely argues that the indictment does properly charge a

general conspiracy in each count. The Government has not

addressed the issue of whether or not this Court has the in-

herent supervisory power to decline jurisdiction.

The doctrine of collateral estoppel is applicable to crimi-

nal cases. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189,

25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S.

575, 68 S.Ct. 237, 92 L.Ed. 180 (1948). Two criteria must

be met before criminal collateral estoppel may be applied.

First, the party estopped from relitigating an issue must

have been a party to the initial litigation. United States v.

Smith, 446 F.2d 200 (4th Cir. 1971); Serio v. United

States, 203 F.2d 576 (5th Cir. 1953). Second, a defendant

claiming an estoppel must show that the issue he seeks to

exclude from the subsequent trial was “necessarily deter-

mined” by the former verdict of acquittal. United States v.

Smith, supra; United States v. Friedland, 391 F.2d 378

(2nd Cir. 1968); Adams v. United States, 287 F.2d 701 (Sth

Cir. 1961). Since collateral estoppel applies only to matters

actually litigated, the moving party must introduce a suffi-

cient record of the prior proceeding to enable the trial court

to pinpoint the exact issues previously litigated. United

States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979).

For purposes of deciding the pending motion, this Court

need not decide if collateral estoppel bars the Government

from bringing this indictment against Gonsalves. After all,

different defendants were involved in the Brown decision.

Thus, this Court did not necessarily determine that it

would refuse to exercise jurisdiction over any of the other

defendants.

26a

This Court is well aware that a conspiracy prosecution

may be brought in any district in which any act in further-

ance of the conspiracy was committed by any of the con-

spirators, even though some of them were never physically

present there. Title 18, U.S.C. § 3237(a); Wright, Federal

Practice and Procedure: Criminal § 303, pp. 589-90. And,

the actions in Las Vegas of Ernst Franz Combs, Jr., an in-

dicted coconspirator, and Gary Lynn Lickert, an unindicted

coconspirator, could be used to establish the necessary

overt act within this district. However, the problem in

Brown was that the indictment was such a complex mon-

strosity that this Court decided it should have been broken

down into several smaller, more manageable indictments.

There simply was no good reason for those defendants to be

indicted in this district given their alleged roles in the Gov-

ernment’s conspiracy theory. This Court is confronted with

the same problem with the indictment against Gonsalves.

Therefore, for the same reasons articulated in this

Court’s September 21, 1976, order and judgment of acquit-

tal as to defendants Brown, Work and Synder, this Court

hereby exercises its discretionary supervisory powers and

dismisses the indictment as against defendant Gonsalves.

/S/ Roger D. Foley

ROGER D. FOLEY

District Judge

27a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

Criminal LV-76-39, RDF

UNITED STATES OF AMERICA, PLAINTIFF,

Uv.

RICHARD KENNETH BROWN, ET AL., DEFENDANTS.

Before:

The Honorable Roger D. Foley, District Judge

REPORTER'S TRANSCRIPT OF COUNSELS’ OPENING

STATEMENTS AND THE COURT'S

ORDER OF ACQUITTAL.

Monday, September 20, 1976

Tuesday, September 21, 1976

WILLIAM E. MADARA, R.P.R., C.S.R. #22, Court

Reporter Pro Tem

APPEARANCES:

FOR THE PLAINTIFF: LAWRENCE J. SEMENZA, Esq.

UNITED STATES OF AMERICA _ U.S. Attorney

By:

LELAND E. LUFTY, Esq.

PHILIP M. PRO, Esq.

Assistant U.S. Attorneys

300 Las Vegas Boulevard South

Las Vegas, Nevada 89101

FOR THE DEFENDANTS:

RICHARD KENNETH BROWN RICHARD G. SHERMAN, Esq.

6420 Wilshire Boulevard

Los Angeles, California 90048

and

HARRY E. CLAIBORNE, Esq.

108 South Third Street

Las Vegas, Nevada 89101

ROBERT DAVID WORK FLYNN, KIMERER, THINES &

GAILBRAITH

By: MICHAEL D. KIMERER, Esq.

100 West Washington Street

Phoenix, Arizona 85003

28a

KENT GILES SNYDER SIMON & SHERIDAN

By: THOMAS R. SHERIDAN, Esq.

Suite 400

2404 Wilshire Boulevard

Los Angeles, California 90057

[pages 28-48]

LAS VEGAS, NEVADA, TUESDAY, SEPTEMBER 21,

1976 ,

THE COURT: The record will show the presence of the

defendants and their counsel and the Assistant U.S.

Attorney.

Last night there was introduced a writ hearing in this case

and I didn’t recognize it as such until I got it in chambers.

Applying the principle of Briggs that it is improper for the

government to name persons as unindicted co-conspirators,

that has absolutely nothing to do with the admissibility of

evidence. Let’s assume that you have a conspiracy with only

two named co-conspirators and the evidence shows that

there were four others. Under proper circumstances, if a

conspiracy is shown to exist, if the defendant is shown to be

a member, then the third party’s act or declaration of a co-

conspirator is admissible in accordance with the rules of evi-

dence. I think the government brief is right and defense

counsel saw that from the start and wondered what I was

talking about. In any event, that is no longer a problem.

As a matter of fact, I sighted [sic] to you a second case

from the Fifth Circuit Beasley. In that case, counsel was

trying to turn this rule around as defense counsel often does,

the court said, this is another panel, “In reality he attacks

the government’s failure to specifically name Dickey Dia-

mond and Barbara Irwin in the indictment. Both were ad-

mitted co-conspirators and the prosecution’s key witness in

the conspiracy count.” Then, in a footnote, the court says,

“We note this Court’s recent decision in Briggs,” and so

forth, So that is no problem.

29a

However, I had planned to dispose of this case this morn-

ing, but in his anxiety Mr. Sherman has obtained an order

from the august Walter Ely and Shirley Hufstedler from the

Ninth Circuit which says that I cannot go further. It says,

“Further proceedings in District Court are stayed pending

compliance with these directions.” That is hearing the late

motions you filed.

I would interpret that to mean that I can’t go ahead with

the trial. Suppose I wanted to grant a motion for a directed

verdict on the opening statements and the trial brief of the

government, which I think I’m going to do. Would I then be

in contempt of my superiors, Mr. Sherman?

MR. SHERMAN: May I address the court on that sub-

ject, sir?

Your Honor, I did not mean, just to make myself clear, I

think sometimes it is necessary—Judge Foley, I have really

and truly great respect for this court. I meant no imperti-

nence with that petition and it was not the sole effort on

my—

THE COURT: Judge Ely and Judge Hufstedler are not

adverse to intruding into the area of the District Court’s

work before appeal. That doesn’t surprise me. You got the

right judges among others that would have listened to you.

MR. SHERMAN: Your Honor, if I could have brought

that writ to a San Francisco Judge and been here and there

at the same time, I assure Your Honor that I would have

done exactly

THE COURT: Well, I don’t want to get into that.

I’m going to take the position that what Judge Ely and

Judge Hufstedler mean when they say, “Further proceed-

ings are stayed pending compliance ...”, that means, “Judge

Foley, you can’t go ahead with the trial.”

So, I feel that if I go ahead and consider what I think I am

going to do—I read that trial memorandum last night, I

hadn’t read it before, I scanned it—if I am going to dismiss

this case, I assume that my superiors are not going to find

me in contempt of their order.

MR. SHERMAN: I would assume so, Your Honor.

THE COURT: In fact, you would be pleased with

dismissal?

30a

MR. SHERMAN: Your Honor, I would be delighted.

THE COURT: So, let’s lay this aside.

Now, in the Alice in Wonderland mind of Lawrence

Semenza, who is the United States Attorney for Nevada, we

have conjured up here a massive conspiracy. This isn’t the

first time Mr. Semenza, in his own inimitable way, has con-

jured up a massive conspiracy. Back in 1974, I spent a whole

summer, missed the Judicial Conference, trying one of Lar-

ry Semeza’s dreams and it finally broke down because of its

sheer size. We had thirteen defendants, fifteen lawyers. We

had a conspiracy that involved a Mexican who was the

source of marijuana in Mexico. We had defendants and mul-

tiple and unindicted co-conspirators who had to do with load-

ing cars in Mexico and driving across the border. Couriers

who took them from El Centro to Las Vegas, couriers who

took them from Las Vegas to Salt Lake, couriers who took

them to Detroit. And then there, five or six other defend-

ants who bought the stuff and distributed it in the Detroit

area. It was a dandy.

We finally ended up negotiating pleas. It was impossible

to try. Fifteen lawyers cross-examining each government

witness.

The Detroit lawyers, I think most of them had never been

out of the Police Courts before, they were the most discour-

teous bunch of lawyers I ever met in my life. They tried me

constantly. They were able to get to my Irish and I apolo-

gized and wrote speeches to the jury every other day trying

to unring the bell. We went on and on and Mr. Semenza sat

in that chair and smiled. I think he likes to concoct this type

of monstrosity.

Now, I said something about that when I threw out the

first indictment in this case. So, this isn’t the first time.

Now, I am going to grant, if defense counsel will move, a

motion for judgment of acquittal based upon the govern-

ment’s opening statement and trial memorandum. I assume

that defense counsel will so move?

MR. SHERIDAN: So move, Your Honor.

MR. SHERMAN: So move.

MR. KIEMERER: So move, Your Honor.

sla

THE COURT: Now, let’s look at this thing. You turn to

page two of the government’s trial memorandum—first let

me say that poor Mr. Pro and poor Mr. Lufty have struggled

long and hard with this case. I know you put a lot of time

and preparation in this case. It is not your fault, it is your

bosses’ fault. First transactions, in February of 1973, Mr.

Gater met with Combs in Lake Tahoe in California, that

puts us in the Eastern district, is that right?

MR. SHERIDAN: It is, Your Honor.

THE COURT: And then after that, Gater came into Los

Angeles pursuant to arrangement agreeing to pick up mari-

juana. He went to Rick Brown’s house, one of the defend-

ants here, in Newport. Well, no, he was to proceed from

Lake Tahoe to Rick Brown’s house. Then, he flew into

Orange County Airport and Brown picked him up and took

him to a warehouse in San Pedro. Brown told Gater this is

where the load was to be delivered.

They drove to Brown’s home in Newport Beach. Brown

showed Gater a Carnet and told him that he would have to

show it to get the air cargo from TWA in Los Angeles Inter-

national in order to pick up the shipment of musical equip-

ment. Then, ultimately Gater picked it up, drove the truck

to the warehouse in San Pedro, Brown was waiting for him.

Bob Work, another defendant on trial here, came in the pic-

ture there and he told Gater that he had made the shipping

arrangements for the speakers from Paris. Gater, Brown

and Work unloaded the speakers and put them in the ware-

house. They took this red Lebanese hashish and put it in

small packages and so forth.

Then, Mr. Gater for his trouble, got a kilo of hashish.

That’s it. That is one complete conspiracy.

Most prosecutors, ninety-nine out of a hundred lawyers

that have any logic in their mind, would have said, “Okay,

that is one charge.”, return an indictment against Gater.

Gater is going to be a witness against Brown and Work in

the Southern district of California, that is the proper venue.

That is just the beginning of Mr. Semenza’s dream.

I would really wish the press were here, perhaps that is

just as well.

32a

In March of 1973, this is transaction number two, back up

at Lake Tahoe Combs is there and he wants to know if Gater

wants to go to Europe to take part in a shipment from

Europe. Gater said, “Yes.”, and Gater is to rent a house in

Austria and there he is to collect the hash. Gater is going to

get a piece of the action this time. He is going to invest

twenty thousand dollars. And Bob Frye, a defendant here,

who is in the United States, but has never been found, at

least he is a United States citizen, he played a part in this

caper. Bob Frye is to go to Austria to assist Gater. And

then, Sam, I will call him Sam, it is Mr. Hraouri, who is a

named defendant, he is to meet him there in the Hotel

Steierhof, and he does.

Before he goes, he seeks Rick Brown and Rick Brown

helps him put the money together and Combs comes in with

some money and they have a total of three hundred thou-

sand dollars. Then, Linda Sibson assists in changing this into

small bills apparently, one hundred dollar bills, and then, off

with the money in his boots and in his suitcase goes Mr.

Gater to Austria. He calls Brown and he Says everything is

all right.

Now, there is nothing further in this caper to do with

Brown or with Work. Nothing to do with Work at all. There

is a dealing with Krug, who is a defendant, as | say, there

was a dealing with Frye, Klaus Warner who is a defendant,

none of whom are before the court, or Mayo, a

defendant—these are unindicted co-conspirators.

In any event, this caper begins in March of ’73 and it is de-

scribed on pages three, four and five of the government’s

massive trial brief. You have to have a massive trial brief

when you have a mass of [sic] indictments. Finally, in May,

March until May—wait a minute, I left out some-

thing—Snyder comes into the picture here. Gater receives

word from Gonsalves, who is also a defendant, that Snyder

is coming over and that Combs has sent Snyder over to pick

up the money. So Gater meets Snyder in Vienna. Snyder is

involved in the rest of this and finally, Snyder and Gater fly

back to the United States. They go to Rick Brown’s house.

So, he is tangentially involved, but Work is not involved in

33a

this at all. And this time, Gater gets twenty-five thousand

dollars.

Another complete transaction. Another conspiracy. An-

other time. The months from March ’73 through May of ’73.

Now, transaction number three. In June of ’73, arrange-

ments are made between Sam who is now in Lake Tahoe and

Gater, Carl Krug, and Combs calls for Gater to go back to

Europe again. This caper involved other people, Jim Morris,

Gay Rober, co-conspirators, counsel has read it. Finally,—I

don’t think there is anything in here—there isn’t anything in

here that touches any of these defendants. I don’t think the

government lists any of them here. Mayo is involved and

Klaus is involved.

Finally, Gary Lickert gets busted in Las Vegas and that is

the trial we have. Work gets out and doesn’t come back.

Now, wait a minute, I am getting ahead of myself. Well,

this transaction, let me see, goes on, it begins on top of page

six of the trial memorandum and goes on to page seven and

page eight. That’s right. I was right. In September Gater

gets word that a load of hash has been busted in Las Vegas

and apparently he had some conversation with Rick Brown.

So, I guess Brown is to some extent at least, minimally in-

volved in that transaction. But, any way, that is another

complete transaction.

Now, in an effort to give this court a jurisdiction, we have

a replay of the Lickert case, a complete replay. Chapter and

verse. And there is absolutely nothing in the transaction in

Las Vegas on Gary Lickert where he was convicted. This

begins, according to the government’s trial brief, on page

eight in August of ’73 and ends in September of ’73. This is

discussed on pages eight, nine, ten, eleven, twelve and

thirteen, down to the middle of page fourteen. That is all

nothing more than a replay of the Lickert case and Brown,

Work and Snyder has nothing to do with the Lickert matter

in Las Vegas. So, the only claim of jurisdiction, the only pos-

sible claim of jurisdiction or venue, we’re talking venue, the

only crime that was committed in Nevada was the crime that

Lickert already stands convicted of and the defendants have

nothing to do with it.

34a

The theory, of course, in this mind of Mr. Semenza’s,

“Yes, that they are working for Combs.” Well, Combs might

have hundred and fifty other people working for him

importing, I don’t know, it could be a half dozen other things

not only involving controlled substances. Maybe he is a fence

for stolen diamonds from South Africa, maybe he is engaged

in the disposition of antiques in Russia. I don’t know. But, if

you follow the logic, the illogic of the mind of our United

States Attorney, that is all one great conspiracy. It is ridicu-

lous. It is absolutely ridiculous. As I said, I fell for it once. I

fell for it once. Damn near had a nervous breakdown with

that trial. It should have taken two or three weeks and I let

one Los Angeles lawyer voir dire the jury and three days

later, we are still trying to get a jury. I remember that very

well.

Now, finally after this sixth transaction—now there are

really two Lickert transactions, one involving flying to

Europe and the other one involving this Las Vegas transac-

tion. I have got these marked and I have seven transactions.

The seventh one involves Harold Armstrong, and that I

didn’t look at too carefully last night, I was too upset by that

time. But, I am satisfied that it doesn’t have anything to do

with any of these defendants.

And Mr. Sheridan mentioned, he said, “I wish Your Hon-

or would give thought to jurisdiction.” And I hadn’t read the

trial briefs carefully. I haven’t done any research, but I am

going to grant the motion based on the, and it is so ordered

that it is granted, based on the opening statements and the

trial brief, on the grounds that the court had no jurisdiction.

And on the further ground that this type of a monstrosity,

unmanagable monstrosity, does not have to be tried by Fed-

eral Judges. The United States Attorney in any district, I

suppose gets whatever indictment he wants out of the Grand

Jury, that is the system. I wouldn’t listen to Mr. Sheridan

yesterday and I told him to read Costello and he knows

Costello as well as I do. One agent can go in and tell heresay

[sic] stories if the Grand Jury wants to indict, that’s it. It’s

going to change, it’s going to have to. Mr. Sheridan is an

oldtime prosecutor, one of the best they have in Los Angeles

and one of the finest criminal lawyers they have in the coun-

35a

try, I think, he knows this. I guess that is what Mr.

Sheridan was trying to get to, but I didn’t realize what we

had in this trial. But, it was Leonard [sic] Hand who talked

about the dragnet affect of conspiracies and dangers and so

forth and this is dangerous. I don’t think the jury could di-

gest this. I doubt that I can. I had the same problem in the

other case which incidentally for the record, that case is

U.S.V. LANDT et al. LV 74-13 indicted by the Grand Jury.

And it was signed by Mr. Semenza and no one else, January

17, 1973. It was tried under the administration of DeVoe

Heaton, I don’t think Mr. Heaton ever saw it. I doubt that

he would have allowed it to go ahead.

But, in any event, this type of conspiracy is unmanagable

trial wise. I don’t know if there is any case law to support

me, I think that a trial Judge is not an umpire and courts

have said this. A Federal trial Judge can participate to the

extent it is necessary to bring order out of chaos, to the ex-

tent necessary to see that it is a fair trial and comment on

the evidence and so forth. He has management powers, he is

not an umpire calling all the balls and strikes as some of our

poor state courts.

And when something like this comes in, the court has the

inherent authority, I am going to hold, I don’t know whether

Mr. Semenza will probably take this up to the Circuit, then I

will have to depend on Mr. Sheridan and Mr. Sherman and

Mr. Kimerer to represent me, but I’m going to hold that the

court has the inherent jurisdiction to dispose of this type of

thing. It is quite apart from jurisdiction, I think. Let’s as-

sume that everything that happened in California happened

in Nevada. Nevada was the headquarters. Even so, I still

would throw this out for the various reasons. Of course, I

will allow counsel to think about it and read what the gov-

ernment says in their brief if they do take it to appeal and

then leave open any other reasons to support me. But, it is

the kind of thing that should not be tried or allowed.

Now, I threw out the first indictment because I think he

alleged two crimes in one count and that can’t be done. But,

the rules, the rules, Mr. Semenza, doesn’t he read them?

Wasn’t there a short statement, what rule is that, Mr.

Sheridan?

36a

MR. SHERIDAN: The duplicity, it comes from a case

from the Ninth Circuit.

THE COURT: Not just the duplicity, but the complexity

and prolixity.

MR. SHERIDAN: Rule seven, Your Honor.

THE COURT: Rule seven.

MR. SHERIDAN: Seven A.

THE COURT: Seven A. I refer to that rule in throwing

out the first indictment.

“The indictment or information shall be a plain, concise

and definite written statement of the essential facts of the

offense charged.”

I don’t expect a response from government counsel, you

have got to be loyal to the man you are working for. I have

great respect for Mr. Lufty and Mr. Pro, they do a great job

and it is a pleasure to have them to prosecute cases of the

government in front of me. As I say, Mr. Semenza threw

you this case and you were stuck with it.

All right, anything that counsel wants to say?

MR. LUFTY: Yes, sir, may we be heard just briefly.

There are a number of things. First of all, Your Honor,

we would respectfully ask Your Honor to allow us to present

our evidence and if you are going to rule on this, do it on

29A.

THE COURT: I am not going to waste two or three

weeks. I have got other things to do and so have you and the

other counsel.

MR. LUFTY: I don’t think that the government is neces-

sary [sic] limited to the—

THE COURT: I never yet granted, although Judge Nellis

ruled on one, moved for a judgment of acquittal or read a

statement and it’s shown in case law, I have never done this

before. But, go ahead.

MR. LUFTY: We feel that there is certainly sufficient ev-

idence to present at a trial. If we had included everything in

the trial memorandum that we intended to offer in trial, it

would have taken days to have written. But, we felt that we

put enough into the memorandum to give Your Honor an

idea where the case was going and where we felt the kind of

37a

overt acts we were concerned with that we felt showed a

conspiracy.

THE COURT: Well, here is what bothers me, you have

got seven conspiracies here. Now, you could have seventy-

seven under Mr. Semenza’s rationale. Let’s suppose that for

twenty-five years Mr. Combs has been engaged in hiring

people to engage in criminal activities of all sorts and there

are all kinds of violations of Federal Law and all over the

world and all over the district conceivably and in ninety-one

districts of the United States. I am not being silly. You can

multiply, multiply, multiply, common sense has got to come

into this things someplace.

MR. LUFTY: I guess we felt it did in the sense that we

made the terms of this conspiracy, the time frame from Jan-

uary of ’73 through June of ’74.

THE COURT: There is nothing wrong with the time

frame. That is about a year and a half, but it is the multiple

transactions.

MR. LUFTY: Looking at the cases that we have dealt

with, they are separate conspiracies or one overall conspir-

acy, deals with the question first of all with the agreement

between the parties. We don’t know exactly what their

agreement was, whether it was one agreement as the

goverment contends, to conspire together to violate the law

by a multiplicity of means. And if that is so, as the govern-

ment contends it is, then that is one conspiracy, even though

there may be a multiplicity of means to accomplish that.

Such as the number of transactions that are involved within

the instant indictment. We contend there was one agree-

ment which we obviously admit Combs as being the head of

this thing. But, nevertheless, Mr. Brown and Mr. Work and

Mr. Snyder, all participated in it. They all participated per-

haps in different times and with different functions within

that conspiracy and as to different levels, but it is all part of

that one ongoing agreement with Mr. Combs to violate the

law. The fact that they have done a multiplicity of things,

does not change from one conspiracy to two or three.

My understanding of the question is what was the nature

of the agreement, if there is an overall agreement. And we

contend that the overall agreement was to import controlled

38a

substances into the United States and after getting it to the

United States, to possess them and to distribute them and

that is exactly what the defendants—

THE COURT: I think that is probably true in Combs’

mind.

MR. LUFTY: And we contend on the defendants—

THE COURT: We have got seven different transactions

with different people involved in most of them carrying out

Comb’s plans.

MR. LUFTY: That is correct.

But, Your Honor, we contend rule the plan here in the

United States. We have got Jim Marks who is running

transatlantic sound—

THE COURT: You are misunderstanding, I am not saying

there is no theory to support the conspiracy, I understand

the theory for this. I say it is a monstrosity, it is

unmanageable, it is not the kind of thing that the court has

to put up with and it should be broken down.

What should have happened here, if Gater is the key

witness, the first transaction in February of ’73 should have

been indicted and returned in California and so should the

second. We should have had about seven different indict-

ments here.

Now, there is no jurisdiction, nothing that these three

young men did in Nevada. They were never here. They did-

n't even make a phone call to Gary Lickert. You have got to

tie that in. You get your astriction [sic]—what Larry

Semenza did here, he attempted to get jurisdiction in

Nevada by reallegeding [sic] chapter,and verse the evidence

that was received in the Lickert case. Now,whoever filed

the Lickert indictment didn’t try to bring in Brown, Work

and Snyder and all these other people. That was well done.

That was an involved enough case as it was. It was very

complex, took a long time to try.

MR. LUFTY: But, in our memorandum here, we have ev-

idence that we did not have then. For instance, we are going

to offer Jean Kemp who did testify in the Lickert trial, was

the manager of the Park Newport Apartments who rented

an apartment to two individuals who called themseives

Avery Lee and Ernest Roberts, Johnathan Avery Lee who

39a

we contend we will show was Ernest Combs and that Ernest

Roberts we contend will show is defendent Work. We will

get a handwriting expert who is going to come in and testify

that the signature on the lease of the apartment in the Park

Newport Apartments, signed by Mr. Lee and Mr. Roberts is

in fact Work and Combs. And that there were calls from

that apartment to D. and N. Delivery relative to the Lickert

transaction. You will remember Ed Hill from D. and N. De-

livery testified that he received a number of phone calls dur-

ing that day about when would the delivery arrive, when it

is going to clear through customs. We are going to offer evi-

dence of the tone that the phone calls of Park Newport to

show the tie-up between Mr. Work who is the tenant for

that apartment and the D. and N. Delivery in this particular

delivery that Lickert got busted for. That is at least one

instance.

THE COURT: You are not going to offer any evidence. If

the Court of Appeals reverses this finding and sends it back

for trial, I won’t try it. I will find some young Judge that has

got more patience and more energy than I have, to come in

and to try it. But, I don’t think that the court has to sit carte

blanche—let’s suppose that somewhat like the Landt case

that all the defendants were found here and they all had dif-

ferent lawyers. Have you ever been through one of those?

Mr. Sheridan I know you better than those other gentlemen.

Have you ever seen one of those tried?

MR. SHERIDAN: Yes, Your Honor.

THE COURT: They are horrible. They are

unmanageable. You’ve got how many defendants, eleven?

MR. SHERIDAN: Thirteen, I think and seventeen

unindicted co-conspirators.

THE COURT: You have got eleven cross-examiners for

each witness. As I say, I went through this.

Now, I don’t think that the court has to let the U.S. At-

torney create these monstrosities and shove them down the

court’s throat and choke on them and go on and on and leave

other work aside and tie-up a jury for months and do this. I

know there are massive conspiracies, the Dennis case, the

massive conspiracy case that the famous Judge in New

York, Medina tried. There are, and I understand that, but in

40a

this type of thing, and as I said, the same thing, the same

theory as Landt...

Now, in the Landt case, all of those five defendants in

Detroit who bought the stuff in Detroit and distributed it in

Detroit, should have been prosecuted in Detroit. That is the

way I felt it should have been looked at by the U.S. Attor-

ney. I would have got the people that imported it, smuggled

it into here and gotten that in California. But, no you see

they all came from Las Vegas and that is how I got it. An-

other one of Mr. Semenza’s Alice in Wonderland dreams.

And they are that. They are ridiculous in concept. I don’t

know what the matter is, I don’t know how he thinks. |

think he has some kind of sense of delight in conjuring these

things up, creating these massive puzzles and saying, “Let’s

see how Judge Foley can handle that.” I don’t know what is

going on, but I will tell you this much, I’m not going to put

up with it any more. Please God, we'll have a change of ad-

ministration and he’ll be gone. I don’t know about that ei-

ther, but I’m not going to put up with Semenza any more.

So, I won’t try this. If the Court of Appeals should say

that I am wrong, I don’t think they are going to, and this

case comes back, I won’t try it. And I won't try any more of

Larry Semenza’s cases that are this ill. I’m going to have to

work out some system when I get copies of the indictment

where I can demand in advance a trial brief so I can see

what we are into before we go through all of the time and

energy, the motion stage and impanelling the jury and so

forth. I had intended yesterday afternoon before I studied

this trial brief, to do what you suggested, wait until the end

of the government’s case and let you put on your evidence.

But, I’m not going to go two and three weeks for that.

MR. LUFTY: May I make just one last point, Your Honor

and then I’ll sit down.

The problem we faced with conspiracy trial, as with every

conspiracy trial, we charged on conspiracy that is on going

for an eighteen month period and defense attorneys jump up

and say, “you have a multiple conspiracy.” Had we charged

multiple conspiracies here, if we were here with the defend-

ants on the eight or a ten or a twelve count indictment or

difference trials and different conspiracies—

4la

THE COURT: That is what you should have done. You

should have broken them down to separate indictments, the

Eastern District of California and the Central District of

California. You have nothing to bring here. We have already

tried Lickert—you want to retry it so that you could try to

tie it in here.

MR. LUFTY: We believe we could show the annexus [sic]

here and we could show where they—

THE COURT: Well, I appreciate your position.

[page 58]

All right then, the order will be then that the Court,

lacking jurisdiction and because of the reasons given in con-

siderable detail about the complexity of this case, based

upon the trial memorandum and the opening statement, the

defendant’s motion for a judgment of acquittal is granted.

(At 9:48 o’clock, the trial in the above entitled matter was

concluded. )

42a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-1860

DC CR LV 76-0039-13 RDF

UNITED STATES OF AMERICA, PLAINTIFF APPELLANT,

i},

STEPHEN ANTHONY GONSALVES, DEFENDANT APPELLEE.

APPEAL from the United States District Court for the

District of Nevada (Las Vegas).

THIS CAUSE came on to be heard on the Transcript of

the Record from the United States District Court for the

District of Nevada (Las Vegas) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court, that the judgment of the

said District Court in this Cause be, and hereby is affirmed.

Filed and entered NOVEMBER 9. 1982

43a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. RO- 1860

UNITED STATES OF AMERICA, APPELLANT-PLAINTIFF,

STEPHEN ANTHONY GONSALVES, DEFENDANT-APPELLEE.

FILED FEB. 28, 1983

ORDER

Before: ELY and NORRIS, Circuit Judges, and

PECKHAM*”, District Judge

The Petition for Rehearing is DENIED.

*Honorable Robert F. Peckham, Chief Judge, Northern

District of California, sitting by designation.

44a

APPENDIX F

LAWRENCE J. SEMENZA

United States Attorney

RICHARD A. WRIGHT

Assistant United States Attorney

300 Las Vegas Boulevard South

Las Vegas, Nevada 89101

385-6336

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Cr. LV 76-39, RDF

Filed Mar. 25, 1976

ERNEST FRANZ COMBS, JR.,

RICHARD KENNETH BROWN,

ROBERT CARL FRY,

ROBERT DAVID WORK

KENT GILES SNYDER,

JAMES MORRIS,

KENNETH GRAHAM PLINSTON,

DENNIS HOWARD MARKS,

SALIM INARD HRAOUI,

KARL FERDINAND KRUG,

KLAUS WARNER,

AREND CHRISTOPHER TERHORST AND

STEPHEN ANTHONY GONSALVES,

VIOLATION:

21 U.S.C. § 963—Conspiracy to Import a Controlled

Substance;

21 U.S.C. § 846—Conspiracy to Possess with

intent to distribute a controlled substance

INDICTMENT

COUNT I

(Conspiracy to Import a Controlled Substance)

The Grand Jury charges: THAT

45a

ERNEST FRANZ COMBS, JR..,

RICHARD KENNETH BROWN,

ROBERT CARL FRY,

ROBERT DAVID WORK,

KENT GILES SNYDER,

JAMES MORRIS,

KENNETH GRAHAM PLINSTON,

DENNIS HOWARD MARKS,

SALIM INARD HRAOUI,

KARL FERDINAND KRUG,

KLAUS WARNER,

AREND CHRISTOPHER TERHORST and

STEPHEN ANTHONY GONSALVES,

defendants herein, from on or about January 1, 1973, and

continuously thereafter up to June 18, 1974, in the Southern,

the Central, and the Eastern Districts of California, the Dis-

trict of Nevada, and elsewhere, and JAMES EARL

GATER, JR., RAYMOND BARRY MAYO, RICHARD

JONATHAN VICKERS, ALLEN RICHARD WHITE,

GARY LYNN LICKERT, MARY JEAN GORMAN,

BRENDA MARIE SIBSON, PATRICIA LESLIE

GREEN, LISA ANN PHILBEE, JEFFREY MARK HA-

GEN, HAROLD ADRIAN ARMSTRONG, CHARLENE

ROSE COLON, MARIAM GAY RABER, DAVID GLENN

CUNNISON, BENNY BEHR, MICHAEL JOHN BELL

and BILLY EUGENE GREENWOOD, named herein as co-

conspirators, but not as defendants, unlawfully, wilfully and

knowingly did combine, conspire, confederate and agree to-

gether and with each other, and with others unknown to the

Grand Jury, to commit offenses against the United States,

that is, to import into the United States from Afghanistan,

Pakistan, Lebanon, France, Italy, Austria, the Netherlands,

the United Kingdom, and other places outside the United

States, marijuana (hashish), a Schedule I controlled sub-

stance in violation of Title 21, United States Code, Sections

952(a) and 960(a)(1).

It was part of said conspiracy that defendants ERNEST

FRANZ COMBS, JR., JAMES MORRIS, and KENNETH

GRAHAM PLINSTON, would purchase marijuana (hashish)

from defendants SALIM INARD HRAOUI, KARL

46a

FERDINAND KRUG, KLAUS WARNER, AREND

CHRISTOPHER TERHORST, and other unknown to the

Grand Jury, and that the purchase of said marijuana (hash-

ish) would take place in Afghanistan, Pakistan, Lebanon,

France, Italy, Austria, and the Netherlands, the United

Kingdom and other places outside the United States.

It was further part of said conspiracy that defendants ER-

NEST FRANZ COMBS, JR., JAMES MORRIS, and

KENNETH GRAHAM PLINSTON would arrange to have

the marijuana (hashish) concealed in acoustical sound speak-

er cabinets and imported into the United States under the

name Trans-Atlantic Sound Company.

It was further part of said conspiracy that defendant ER-

NEST FRANZ COMBS, JR., would recruit couriers and

convey directions to the couriers.

It was further part of said conspiracy that defendants

RICHARD KENNETH BROWN, ROBERT CARL FRY,

ROBERT DAVID WORK, KENT GILES SNYDER,

DENNIS HOWARD MARKS, and _ unindicted co-

conspirators JAMES EARL GATER, RAYMOND BARY

MAYO, RICHARD JONATHON VICKERS, ALLEN

RICHARD WHITE, GARY LYNN LICKERT, MARY

JEAN GORMAN, BRENDA MARIE SIBSON, PATRICIA

LESLIE GREEN, LISA ANN PHILBEE, JEFFEREY

MARK HAGEN, HAROLD ADRIAN ARMSTRONG,

CHARLENE ROSE COLON, MARIAM GAY RABER,

DAVID GLENN CUNNISON, BENNY BEHR, MI-

CHAEL JOHN BELL, and BILLY EUGENE GREEN-

WOOD, and others unknown to the Grand Jury, would act

as assistants and/or couriers and would assist in the

purchasing and/or importing of the concealed marijuana

(hashish) into the United States from Afghnistan, Pakistan,

Lebanon, France, Italy, Austria, the Netherlands, the

United Kingdom, and other places outside the United

States.

In furtherance of said conspiracy, and to effect the objects

thereof, the defendants and unindicted co-conspirators

committed the following overt acts, among others:

47a

OVERT ACTS

1. On or about March 4, 1973, JAMES MORRIS shipped

the ten acoustical sound speaker cabinets containing mari-

juana (hashish) by TWA from Orly Airport, Paris, France,

to J.F.K. International Airport, New York.

2. On or about March 7, 1973, at Lake Tahoe, California

ERNEST FRANZ COMBS, JR., requested James Earl

Gater, Jr., to pick up acoustical sound speaker cabinets at

the Los Angeles International Airport, Los Angeles,

California.

3. On or about March 8, 1973, RICHARD KENNETH

BROWN, ROBERT DAVID WORK and James Ear! Gater,

Jr., unloaded approximately 724 Ibs. of marijuana (hashish)

from the acoustical sound speaker cabinets.

4. On or about March 14, 1973, James Earl Gater, Jr. met

with SALIM INARD HRAOUI at Graz, Austria, to sample

marijuana (hashish).

5. On or about March 20, 1973, at Graz, Austria, KLAUS

WARNER gave James Ear! Gater, Jr. keys to a vehicle con-

taining approximately 200 kilograms of marijuana (hashish).

6. On or about April 11, 1973, at Graz, Austria, ROBERT

CARL FRY turned over to James Earl Gater, Jr. approxi-

mately $120,000.00 left over from the approximately

$300,000.00 used to purchase the marijuana (hashish).

7. On or about May 6, 1973, James Earl Gater, Jr. trans-

ported KENT GILES SNYDER to the Vienna, Austria Air-

port were KENT GILES SNYDER departed for Geneva,

Switzerland, carrying a briefcase containing the $120,000.00.

8. On or about May 25, 1973, STEPHEN ANTHONY

GONSALVES delivered to Harold Adrian Armstrong, Long

Beach, California, approximately $140,000.00 in cash.

9. On or about May 26, 1973, at 79 Marylands Road,

London, England, Harold Adrian Armstrong gave

KENNETH GRAHAM PLINSTON the briefcase containing

the $140,000.00.

10. On or about June 1, 1973, at Newport Beach,

California, ROBERT DAVID WORK and ERNEST

FRANZ COMBS, JR. rented apartment 302 at 3110 Park

48a

Newport, Newport Beach, California. All in violation of Ti-

tle 21, United States Code, Section 963.

COUNT II

(Conspiracy to Possess with intent

to distribute a controlled subtance)

The Grand Jury further charges: THAT

ERNEST FRANZ COMBS, JR..

RICHARD KENNETH BROWN.

ROBERT CARL FRY,

ROBERT DAVID WORK.

KENT GILES SNYDER,

JAMES MORRIS,

KENNETH GRAHAM PLINSTON,

DENNIS HOWARD MARKS.

SALIM INARD HARAOUI.

KARL FERDINAND KRUG,

KLAUS WARNER.

AREND CHRISTOPHER TERHORST and

STEPHEN ANTHONY GONSALVES,

defendants herein, from on or about January 1, 1973, and

continuously thereafter up to June 18, 1974, in the Southern,

the Central, and the Eastern districts of California, the Dis-

trict of Nevada, and elsewhere, and JAMES EARL

GATER, JR., RAYMOND BARRY MAYO, RICHARD

JONATHAN VICKERS, ALLEN RICHARD WHITE,

GARY LYNN LICKERT, MARY JEAN GORMAN,

BRENDA MARIE SIBSON, PATRICIA LESLIE

GREEN, LISA ANN PHILBEE, JEFFREY MARK HA-

GEN, HAROLD ADRIAN ARMSTRONG, CHARLENE

ROSE COLON, MARIAM GAY RABER, DAVID GLENN

CUNNISON, BENNY BEHR, MICHAEL JOHN BELL

and BILLY EUGENE GREENWOOD, named herein as co-

conspirators, but not as defendants, unlawfully, wilfully and

knowingly did combine, conspire, confederate and agree to-

gether and with each other, and with others unknown to the

Grand Jury, to commit offenses against the United States,

that is, to possess a Schedule I controlled substance, to wit,

marijuana (hashish) with the intent to distribute and distri-

49a

bution of marijuana, in violation of Title 21, United States

Code, Section 841(a)(1).

It was part of said conspiracy that defendants ERNEST

FRANZ COMBS, JR., JAMES MORRIS, and KENNETH

GRAHAM PLINSTON, would purchase marijuana (hashish)

from defendants SALIM INARD HRAOUI, KARL

FERDINAND KRUG, KLAUS WARNER, AREND

CHRISTOPHER TERHORST, and others unknown to the

Grand Jury, and that the purchase of said marijuana (hash-

ish) would take place in Afghanistan, Pakistan, Lebanon,

, France, Italy, Austria, the Netherlands, the United King-

dom, and other places outside the United States.

It was further part of said conspiracy that defendants ER-

NEST FRANZ COMBS, JR., JAMES MORRIS, and

KENETH GRAHAM PLINSTON would arrange to have

the marijuana (hashish) concealed in acoustical sound speak-

er cabinets and imported into the United States under the

name Trans-Atlantic Sound Company.

It was further part of said conspiracy that defendant ER-

NEST FRANZ COMBS, JR., would recruit couriers and

convey directions to the couriers.

It was further part of said conspiracy that defendants

RICHARD KENNETH BROWN, ROBERT CARL FRY,

ROBERT DAVID WORK, KENT GILES SNYDER,

DENNIS HOWARD MARKS, and unindicted co-

conspirators JAMES EARL GATER, RAYMOND BARRY

MAYO, RICHARD JONATHON VICKERS, ALLEN

RICHARD WHITE, GARY LYNN LICKERT, MARY

JEAN GORMAN, BRENDA MARIE SIBSON, PATRICIA

LESLIE GREEN, LISA ANN PHILBEE, JEFFREY

MARK HAGEN, HAROLD ADRIAN ARMSTRONG,

CHARLENE ROSE COLON, MIRIAM GAY RABER,

DAVID GLENN CUNNISON, BENNY BEHR, MI-

CHAEL JOHN BELL, and BILLY EUGENE GREEN-

WOOD, and others unknown to the Grand Jury, would act

as assistants and/or couriers and would assist in the

purchasing and/or importing of the concealed marijuana

(hashish) into the United States from Afghanistan, Pakistan,

Lebanon, France, Italy, Austria, the Netherlands, the

50a

United Kingdom, and other places outside the United

States.

In furtherance of said conspiracy, and to effect the objects

thereof, the defendants and unindicted co-conspirators

committed the following overt acts, among others:

OVERT ACTS

1. On or about March 4, 1973, JAMES MORRIS shipped

the ten acoustical sound speaker cabinets containing mari-

juana (hashish) by TWA from Orly Airport, Paris, France,

to J.F.K. Internationai Airport, New York.

2. On or about March 7, 1973, at Lake Tahoe, California,

ERNEST FRANZ COMBS, JR., requested James Earl

Gater, Jr., to pick up acoustical sound speaker cabinets at

the Los Angeles Inernational Airport, Los Angeles,

California.

3. On or about March 8, 1973, RICHARD KENNETH

BROWN, ROBERT DAVID WORK and James Ear! Gater,

Jr., unloaded approximately 724 lbs. of marijuana (hashish)

from the acoustical sound speaker cabinets.

4. On or about March 14, 1973, James Ear! Gater, Jr. met

with SALIM INARD HRAOUI at Graz, Austria, to sample

marijuana (hashish).

5. On or about March 20, 1973, at Graz, Austria, KLAUS

WARNER gave James Ear! Gater, Jr. keys to a vehicle con-

taining approximately 200 kilograms of marijuana (hashish).

6. On or about April 11, 1973, at Graz, Austria, ROBERT

CARL FRY turned over to James Ear! Gater, Jr. approxi-

mately $120,000.00 left over from the approximately

$300,000.00 used to purchase the marijuana (hashish).

7. On or about May 6, 1973, James Ear! Gater, Jr. trans-

ported KENT GILES SNYDER to the Vienna, Austria Air-

port where KENT GILES SNYDER departed for Geneva,

Switzerland, carrying a briefcase containing the $120,000.00,

8. On or about May 25, 1973, STEPHEN ANTHONY

GONSALVES delivered to Harold Adrian Armstrong, Long

Beach, California, approximately $140,000.00 in cash.

9. On or about May 26, 1973, at 79 Marylands Road,

London, England, Harold Adrian Armstrong gave

5la

KENNETH GRAHAM PLINSTON the briefcase containing

the $140,000.00

10. On or about June 1, 1973, at Newport Beach,

California, ROBERT DAVID WORK and ERNEST

FRANZ COMBS, JR. rented apartment 302 at 3110 Park

Newport, Newport Beach, California. All in violation of Ti-

tle 21, United States Code, Section 846.

A TRUE BILL:

S/ ADELENE BARTLETT

ADELENE BARTLETT

Foreman of the Grand Jury

S/ LAWRENCE J. SEMENZA

LAWRENCE J. SEMENZA

United States Attorney

S/ RICHARD A. WRIGHT

RICHARD A. WRIGHT

Assistant United States Attorney

I hereby attest and certify on March 30, 1976 that the fore-

going document is a full, true and correct copy of the origi-

nal on file in my office, and in my legal custody.

JOHN A PORTER

Clerk, U.S. District Court

District of Nevada

By INA LAVERN

INA LAVERN

Deputy