Petition — Bouclin v. United States

83-192 AUG 1. 1983

ALEXAND OR L. STEVAS,

CLERK

No. 82-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

MICHAEL JEAN BOUCLIN, PETITIONER

Ve.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES F. MOSES

MOSES LAW FIRM

The Terrace Penthouse

380 North 25th Street

P. O. Box 2533

Billings, Montana 59183

COUNSEL FOR PETITIONER

No. 82-

IN THE SUPREME COURT OF THE UNITED JU?ATES

October Term, 1982

MICHAEL JEAN BOUCLIN, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES F. MOSES

MOSES LAW FIRM

The Terrace Penthouse

308 North 25th Street

P. O. Box 2533

Billings, Montana 59183

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

) Was Petitioner denied fundamental

due process, his privilege not to

incriminate himself, his right to

confront witnesses, his right to compel

testimony of witnesses, and his right to

have a telephone tap search warrant issue

only on probable cause, when he was

prohibited from questioning the Canadian

officials thereon?

2 Even if the Canadian telephone

tapes of Petitioner's telephone calls

were admissible in spite of Petitioner's

constitutional rights in 1 above, were

his same rights violated by the Court's

refusal to permit testimony to establish

facts to shock the Court's conscience as

to the issuance without probable cause of

the Canadian search order thereon and as

ii

obtained by the joint efforts of Canadian

and American officers?

36 Did the Court usurp the jury's

right to find the facts when it refused

Petitioner's defense that more than proof

of one sale is required in a conspiracy?

4. Should Petitioner's wife's

testimony, admitted over objection on the

spousal privilege, and the $7,886

cashier's check seized without a warrant,

have been allowed to prove the second

person required in a conspiracy?

iii

Table of Contents

Page

Questions Presented for

Review i

Table of Authorities Vv

Opinions Below 2

Jurisdiction 3

Constitutional Provisions 4

Statement of the Cases

A. Procedural History

B. Statement of the Facts

Nuwu

Argument 15

1 - Was Petitioner denied

fundamental due process, his

privilege not to incriminate

himself, his right to con-

front witnesses, his right

to comple testimony of

witnesses, and his right to

have a telephone tap search

warrant issue only on

probable cause, when he

was prohibited from ques-

tioning the Canadian

officials thereon? 15

2 - Even if the Canadian

telephone tapes of Peti-

tioner's telephone calls

iv

were admissible in spite

of Petitioner's constitu-

tional rights violated by

the Court's refusal to

permit testimony to

establish facts to shock

the Court's conscience as

to the issuance without

probable cause of the

Canadian search order there-

on and as obtained by the

joint efforts of Canadian

and American officers?

3 - Did the Court usurp the

Jury's right to find the

facts when it refused

Petitioner's defense that

more than proof of one

sale is required ina

conspiracy?

4 - Should Petitioner's

wife's testimony, admitted

over objection on the

spousal privilege, and

the $7,000 cashier's check

seized without a warrant,

have been allowed to prove

the second person requiired

in a conspiracy?

Conclusion

Filing and Service

Verification

22

27

38

33

34

Table of Authorities

Cases Page

.e]

avis v. Alaska, 415 U.S. 368 17

District Court v. Royal

Canadian Shows, 66 C.C.C. 2d

125 (1982) 20

Elkins v. U.S., 364 U.S. 206

(1968) 33

Gouled v. U.S., 255 U.S. 298

(1921) 17

Horning v. District of

Columbia, 254 U.S. 135 (1929) 29

Katz v. U.S., 389 U.S. 347

(1967) 31

Mapp v. Ohio, 367 U.S. 643

(1961) 18

Plyler v. Doe, _U.S.__, 72

L.Ed. 2d 786 (1982) 20

Stoner v. California, 376 U.S.

483 (1964) 31

Trammel v. U.S., 445 U.S. 48

(1986) 30

vi

U.S. v. Bouclin, (Unreported

Memorandum decision of March 7,

1983, Cause No. 82-1589) 73 F.2d

577

U. S. v. Jeffers, 342 U.S. 248

(1951)

CS

n

<

=

o@

her, (9th Cir. 1068)

U. S. V. Murrie, (6th Cir.

1976) 534 F.2d 695

1981) 658 F.2d 631

Varelli v. U. S.

v. U. S., (7th Cir.

1969) 487 F.2d 735

Constitutional Provisions

Amendment Four

Amendment Five

Amendment Six

Statutes

19 U.S.C. Section 1001

21 U.S.C. Section 846

27

32

28

vii

21 U.S.C. Section 841 (a) (1)

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

Supreme Court Rules

20.1

Other Authorities

Blackstone Commentaries, bk.

379

Martins Criminal Code 1978,

Section 78.16(5) (Canada)

Thomas Jefferson, letter to

Thomas Paine (1789)

28

36

29

No. 82-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

MICHAEL JEAN BOUCLIN, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES F. MOSES

MOSES LAW FIRM

The Terrace Penthouse

30@ North 25th Street

P. O. Box 2533

Billings, Montana 59103

COUNSEL FOR PETITIONER

Petitioner, Michael Jean Bouclin,

respectfully prays that this Court issue

a Writ of Certiorari to review the

judgment of the United States Court of

Appeals for the Ninth Circuit.

OPINIONS BELOW

The United States Court of Appeals for

the Ninth Circuit affirmed Petitioner's

conviction of (1) conspiring to possess

cocaine with intent to distribute, (2)

making a false statement in a customs

declaration and (3) bringing more than

$5,000 in monetary instruments into’ the

United States without filing the required

report, in its decision without

published opinion, cause number 82-1589,

on March 7, 1983, reported at 703 F.2d

$77. The court's memorandum is attached

in the appendix at page A. The Judgment

and Commitment of the United States

District Court for the District of

Montana, Great Falls Division, in cause

number CR-82-25-GF is unreported and is

attached in the appendix at page J.

JURISDICTION

The Memorandum and Decision of the

United States Court of Appeals for. the

Ninth Circuit was rendered on March 7,

1983. A timely petition for rehearing

was denied on June 1, 1983. This

petition, which will be mailed on August

1, 1983, is timely as required by Supreme

Court Rule 20.1.

The jurisdiction of this court is

invoked under 28 U.S.C. Section 1254 (1).

The basis for federal jurisdiction in

the court of first instance, the Montana

District Court, are 21 U.S.C Section

841(a)(1) (Count I), 18 U.S.C. Section

1001(Count IV) and 21 U.S.C. Section 846

(Count V) as set forth in the Indictment

which is attached in the appendix at page

N.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment Four

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seizures,

shall not be violated, and no

warrant shall issue but upon

probable cause, supported by cath

or affirmation, éd particularly

describing the place to be

searched, and the person or things

to be 'seized',."

Amendment Five

"No person...shall be compelled in

any criminal case to be a witness

against himself, nor be deprived of

liberty...without due process of

law..."

Amendment Six

"In all criminal prosecutions the

accused shall enjoy the right to

a...trial, by an impartial jury...

be confronted with the witnesses

against him, to have compulsory

process for obtaining witnesses in

his favor..."

STATEMENT OF THE CASE

A. Procedural History

On March 11, 1982, a five count

indictment was filed in the United States

District Court for the District of

Montana, Great Falls, Division, charging

Petitioner under three separate counts

with the crimes of (1) conspiracy to

possess with the intent to sell cocaine

(Count I), (2) making a false statement

in a customs declaration (Count IV) and,

(3) bringing more than $5,000 into he

United States without filing the required

report thereon, Defendants Oscar Gil,

Kenneth Wilson Jackson and Angel Manuel

Rivera, were also charged with violating

the same Count I, and Rivera was also

charged under Counts II and III. The

defendant Oscar Gil was never arrested

under this indictment. The prosecutor

moved to dismiss the indictment as

against the defendant Jackson, prior to

Petitioner's trial. Rivera under a plea

agreement with prosecutor, pled guilty to

Count III and Counts I and II were

dismissed as against him,

Petitioner's pre-trial motion to

Suppress tape recordings cf his telephone

conversations by Canadian officers was

denied. His trial on July 20, 1982,

resulted in a verdict of guilty as to

Counts I, IV and V. The Court sentenced

Petitioner to ten years with three year

parole term to be attached to any parole

received as to Count I, and to three

years each on both Counts IV and V, to

run concurrently.

Petitioner's appeal from this

conviction and sentence to the United

States Court of Appeals for the Ninth

Circuit was affirmed in an unreported

memorandum decision in Cause No. CR 82-

1589 on March 7, 1983 (703 F.2d 577). A

timely petition for rehearing and

suggestion that the same be heard en banc

was denied on June l, 1983.

Petitioner has been’ charged with

crimes in Canada, arising from the exact

same facts, been convicted thereon and is

presently incarcerated thereon.

B. STATEMENT OF FACTS

Petitioner is a married Canadian

farmer with three children residing at

Elrose, Saskatoon, Saskatchewan, Canada.

On December 7, 1981, a police officer

with the Royal Canadian Mounted Police in

Canada (hereafter R.C.M.P.) filed an

affidavit, authorization and application

to tap petitioner's private telephone,

the telephone at his father's residence

and the telephone at his farm

(Defendant's Exhibit B admitted at RT

"238"). Exhibits C and D (admitted at RT

"236" were renewal orders thereon

extending the period of authorization for

the telephone taps. Under Canadian law,

the affidavit and supporting information

filed to obtain such telephone tap order

was sealed, is privileged and

confidential, and despite petitioner's

requests ‘herefore, the same was never

produced to petitioner, his counsel or to

the Court and the Canadian police

officers all refused to testify thereon,

with their claimed privilege therefore

sustained by the Court.

R.C.M.P. officers traced the numbers

of certain calls tapped to New York City

through United States officers and

discussed their investigation of

petitioner and the information received

from tapping his telephone with U.S.

Officers. Although all such testimony at

the trial was that no such discussions

were held prior to the time that’ the

R.M.C.P. requested information as to the

New York City telephone numbers, the

factual information set forth in the

confidential presentence report states

the facts indicating this was done

earlier.

Based on this investigation, the

10

R.M.C.P. alerted U.S. officials that

petitioner would come to Great Falls,

Montana on February 19, 1982 to purchase

cocaine from co-defendant Oscar Gil.

Petitioner was under surveillance by

U.S. officers from the time he _ first

landed his airplane in Havre, Montana

on such date, drove to Great Falls,

and until he was arrested the next day.

When he landed in Havre, the customs

officer had been instructed to secure his

signature to the required customs form as

to the funds then being transported by

him, and such officer obtained Bouclin's

signature and a check mark on such form

that he was not then carrying more than

$5,000. Petitioner did not then file a

further report with customs itemizing any

monetary instruments then being carried

ll

by him exceeding $5,600.

Petitioner drove a rented car to Great

Falls, stopping at several bars on the

way, checked into a hotel in Great Falls,

went to several bars in Great Falls, and

then went to a different hotel and to co-

defendant Rivera's room.

Rivera informed petitioner as to the

envelope he had carried from New York, he

looked at it, did not touch it, and he

then left Rivera's room, (RT 753).

About an hour anda half later, Rivera

received a telephone call from petitioner

advising him to call Gil in New York and

that he was cancelling the deal and would

not be back (RT 755).

The morning of February 19, 1982,

Rivera was leaving his hotel room to

travel back to New York City when he was

arrested, consented to a esearch. and

12

cocaine was found in his possession (Rt

757).

Rivera pled not guilty to the three

counts of the indictment against him, and

just prior to petitioner's trial, entered

into a plea agreement with the

government, on which the first two counts

were dismissed against him, he entered a

plea of guilty to Count III, and agreed

to testify in petitioner's trial. (RT

758).

Following petitioner's arrest that

same day, special customs agent James

McEwen obtained a search warrant and

seized certain currency from his hotel

room (RT 775), seized additional currency

without a search warrant from his

possession at the jail (RT 777), and then

again without a warrant seized his

13

airplane at the Havre airport and a

$7,008 cashier's check found therein (RT

110).

Over his objections thereto (RT 494-

513), the Court played to the jury

Exhibit 7, a composite tape containing

certain of petitioner's tapped telephone

conversations as selected by the

prosecutor, repeated the playing of the

tapes to the jury with earphones,

repeated certain portions of total of

nine times, and then permitted the jury

to take the tapes and play the same in the

jury room, such taped telephone

conversations showing conversations by

petitioner and others as to the

government's claimed conspiracy to make

the cocaine purchase here involved.

The Trial Court, on the grounds of

comity, refused to allow petitioner's

14

counsel the right to confront and cross-

examine Canadian officers testifying as

to the facts known by them at the time

they applied for the telephone tap

authorizations in Canada and to prove his

contention that no probable cause existed

therefor. There could not have been

evidence sufficient to convict, much less

even to allow the Court to give this case

to the jury without the telephone tapes.

The Trial Court allowed over

objections, a telephone tape by

petitioner's wife saying "It's Gil" as to

one certain telephone call and a_ $7,600

cashier's check made payable to an Oscar

Gil, seized without a warrant from

petitioner's airplane, after his arrest

while he was in custody, while his

airplane was under’ surveillance, and

15

after the government had already applied

properly for and secured a search warrant

to seized certain money from his hotel

room, These were the only two items of

evidence linking him to any other

defendant to prove a conspiracy.

The Trial Court refused to instruct

the jury on Petitioner's defense that one

sale alone was not sufficient for a

conspiracy, thus usurping and taking this

factual issue from the jury.

The Circuit Court affirmed these

decisions.

ARGUMENT

1. WAS THE PETITIONER DENIED FUNDAMENTAL

DUE PROCESS, HIS PRIVILEGE NOT TO

INCRIMINATE HIMSELF, HIS RIGHT TO

CONFRONT WITNESSES, HIS RIGHT TO COMPEL

TESTIMONY OF WITNESSES, AND HIS RIGHT

TO HAVE A TELEPHONE TAP SEARCH WARRANT

“ISSUE ONLY ON PROBABLE CAUSE, WHEN HE

WAS PROHIBITED FROM QUESTIONING THE

CANADIAN OFFICIALS THEREON?

16

If petitioner was an American citizen,

and if all facts involved here had taken

place in the United States, his

conviction could not stand constitutional

scrutiny and it would be reversed. The

fundamental constitutional question

involved is whether a conviction as to a

violation of United States law in a

United States Court is permissible where

clear constitutional rights have been

violated, only because those rights were

violated in Canada. There should be no

difference. Marbury v. Madison, 5

U.S.(1 CRANSCH 1883) determined that the

Constitution must be taken seriously, and

we must see that “its commands, and above

all its promises, are to be translated

into practice,"

Petitioner's defenses included facts

that a Canadian wiretap operation

17

authorization was obtained there without

probable cause and when the Canadian

officials there involved had no facts as

to any violation of either Canadian or

American law, that this would shock the

Court's conscience, but because Canadian

law makes the application for such an

authorization confidential, and that the

facts thereon cannot be disclosed by the

Canadian officials, the United States

Trial Court denied petitioner's rights

to prove this. No consideration was

given his cross-examination rights

established by Davis v. Alaska, 415 U.S.

3068. No attention was paid Gouled v.

United States, 255 U.S. 298 (1921)

holding that the protection against

unreasonable search and seizure and the

privilege against compulsory self-

18

incrimination “are to be regarded as of

the very essence of constitutional

liberty."

We suggest a clear analogy here to

Mapp v. Ohio, 367 U.S. 643 (1961) where

this court held that as a matter of due

process, evidence obtained by search in

violation of the Fourth Amendment is

inadmissible in a State court as it is in

a Federal court and that this “makes very

good sense." There this court further

said that

"Denying short cuts to only one of

two cooperating law enforcement

agencies tends naturally to. breed

legitimate suspicious of ‘working

arrangements' whose results are

equally tainted."

There this court further said as to the

"right to be secure against rude

invasions of privacy by State officers"

that this is constitutional

19

in origin and that the court will:

"no longer permit it to be

revocable at the whim of any police

officer who, in the name of law

enforcement itself, chooses to

suspend its enjoyment. Our

decision, founded on reason and

truth, gives to the individual no

more than that which the

constitution guarantees him, to the

police officer no less than that to

which honest law enforcement is

entitled, and, to the courts, that

judicial integrity so necessary in

the true administration of

justice."

Petitioner suggests this court clearly

faced a more difficult similar decision

in its cases involved claimed

presidential constitutional privileges

and that this law from United States v.

Nixon, 418 U.S. 638, should likewise

apply to petitioner's trial.

"We have elected to employ an

adversary system of criminal

Justice in which the parties

contest all issues before a court

of law. The need to develop all

relevant facts in the adversary

system is both fundamental and

20

comprehensive. The ends of

criminal justice would be defeated

if judgments were to be founded on

a partial or speculative

presentation of the facts. The

very integrity of the judicial

system and public confidence in the

system depend on full disclosure of

all the facts, within the framework

of the rules of evidence. To

ensure the justice is done, it is

imperative to the function of the

courts that compulsory process be

available for the production of

evidence needed either by the

prosecution or by the defense."

Petitioner, even as a Canadian alien

is "guaranteed due process of law by the

Fifth and Fourteenth Amendments." And

this court has:

",..-Cclearly held that the Fifth

Amendment protects aliens whose

presence in this Country is

unlawful from invidious

discrimination by the Federal

government." Plyler Ve Doe,

_U.S.__, 72 L.Ed. 20 786 (1982).

The Supreme Court of Canada in

District Court v. Royal Canadian Shows,

21

66 C.C.C. 2d 125 (1982) has held just to

the contrary, and that in this instance,

the question of admissibility must _ be

decided under American law.

The significance is that the Montana

District Court, as the Court of the

forum, must decide the admissibility of

evidence based upon our constitutional

requirements. To do otherwise would

carve out an exception merely based upon

the place where the evidence was

obtained, U. S. ve. Maher, (9th Cir.

1980) 645 F.2d 788, relied upon by the

courts below to justify their refusal to

permit petitioner to obtain the evidence

necessary to challenge this telephone tap

evidence must be reversed, This

important question of Federal law which

has not been, now should be settled by

22

this court and in a way not in conflict

with this court's decision on these

important constitutional rights.

2. EVEN IF CANADIAN TELEPHONE TAPES

OF PETITIONER'S TELEPHONE CALLS WERE

ADMISSIBLE IN SPITE OF PETITIONER'S

CONSTITUTIONAL RIGHTS IN ONE ABOVE,

WERE HIS SAME RIGHTS VIOLATED BY THE

COURT'S REFUSAL TO PERMIT TESTIMONY TO

ESTABLISH FACTS “TO SHOCK THE COURT'S

CONSCIENCE AS TO THE ISSUANCE WITHOUT

PROBABLE CAUSE OF THE CANADIAN SEARCH

ORDER THEREON AND AS OBTAINED BY THE

JOINT EFFORTS OF CANADIAN AND AMERICAN

~ OFFICERS?

Petitioner does not agree that’ the

only purpose of the exclusionary rule is

to deter unconstitutional conduct by

American officials only. What is

involved here are the clear

constitutional rights and commands. What

is involved is the integrity of our

judicial system and our courts. As these

apply here, petitioner contends that even

if the law established by U. S. v. Maher,

23

cited above, that "Neither our Fourth

Amendment nor judicially created

exclusionary rule applies to acts of

foteign officials" is correct, even if

his constitutional rights to confront

witnesses by cross-examining them, to

obtain their compulsory attendance was

proper as is questioned above, that the

court's failure to permit him to develop

the facts sufficient to come within the

clear exceptions set forth in Maher

require reversal. The Ninth Circuit

court in Maher held:

“There is no evidence American

officials participated in the

alleged wiretap, nor is it shown

tha Canadian police were acting as

agents for their American

counterparts in conducting the

purported eavesdropping. The

investigation of Maher was

initiated and controlled by

Canadian police, with only limited

support and assistance from

American officials on this side of

24

the border. Accordingly, the

"Joint venture" exception to this

general rule of inapplicability to

foreign officials as stated in Rose

and Stonehill is not invoked.

Nor is this 'a case where federal

officials had induced foreign

police to engage in conduct that

shocked the conscience’ to warrant

the district court in exercising

its supervisory powers to exclude

the evidence. See Birdsell v.

United States, 346 F.2d 775, 782 at

n. 1@ (Sth Cir. 1965), cert.

denied, 382 U.S. 963, 86 S.Ct. 449,

15 L.Ed. 366 (1965); United States

Ve Rose, supra, at 1362. No

inducement by federal officials had

been shown."

The record is clear that petitioner

was denied the right to prove that his

case came within either one or both of

these exceptions.

This was not an idle contention.

Even though the Assistant United States

Attorney advised the court that there had

been no joint participation, the

confidential presentence report filed

25

with the Court at the time of

petitioner's sentencing stated that:

"Commencing in December of 1981,

the Great Falls resident office of

the Federal Drug Administration had

been assisting the Royal Canadian

Mounted Police Drug Detachment in

Saskacthewan in identifying

possible sources of cocaine and

marihuana in the United States and

investigating an organized

smuggling and distribution group

headed by Michael Jean Bouclin in

Saskatchewan."

Then during certain limited cross-

examination of one Canadian official he

did then admit that he had previously

testified under oath in a Canadian

proceeding that at the time he made the

application for the telephone tap that he

then had no information as_ to the

importation of drugs. A part of a

further question was:

"And did you have any information

as to allegations that Bouclin or

Bouclin Farms or Kutz would be

involved in the possession of

26

restricted drugs or the possession

for the purpose of restricted drugs

Or possession for the purposes of

trafficking in controlled drugs?

Do you recall what your answer

was?"

And this officer then testified that and

his answer was:

"yes, My answer to that question

was, 'No', also. That is reported

in the document."

Another officer testified that he had

indicated in his affidavit to the

Canadian authorities that petitioner's

father was "associated with drug

traffickers at the time of the affidavit"

whereas the fact then was that he:

",..had nothing to indicate he was a

drug trafficker or associated with

drug traffickers other than perhaps

his son,"

Petitioner is entitled to further

develop these facts and to prove through

the testimony of the Canadian officials

involved that his case comes within one

27

or both of these exceptions. If the

prosecution should decide that it does

not want to disclose such information in

petitioner's trial, then the result must

be the same as in those cases where the

government has had to decline prosecution

rather than permit a defendant to obtain

information necessary for his defense,

but which is information the government

thinks should not be disclosed on the

grounds of national security.

3. DID THE COURT USURP THE JURY'S

RIGHT TO FIND THE FACTS WHEN IT

REFUSED PETITIONER'S DEFENSE THAT

MORE THAN PROOF OF ONE SALE IS REQUIRED

IN A CONSPIRACY?

Petitioner contended that as a fact

there was only one possible cocaine sale

involved, which would not be sufficient

to prove a conspiracy, relying on Varelli

28

v. United States (7th Cir. 1969) 407 F.2d

735, 748, and United States Ve

Priekskorn, (9th Cir. 1981) 658 F.2d 631,

634. This was a factual question for the

jury to determine, under’ instructions

thereon submitted by petitioner. The

Ninth Circuit court affirmed the Trial

Court's decision and determination as a

matter of fact that more than one sale

was involved, and that petitioner was not

entitled to these instructions or this

defense, and to have this factual

determination made by his jury.

We begin with Blackstone Commentaries,

bk. 3, 379.

"The trial by jury ever has' been,

and I trust ever will be, looked

upon as the glory of the English

law. And if it has so great an

advantage over others in regulating

civil property, how much must that

advantage be heightened when it is

applied to criminal cases!"

29

This quote from Thomas Jefferson,

letter to Thomas Paine (1789), is

appropriate:

"I consider trial by jury as’ the

only anchor ever yet imagined by

man, by which a government can be

held to the principles of its

constitution."

We also like Justice Holmes's

statement in Horning v. District of

Columbia, 254 U.S. 135 (1929) that “the

jury has the power to bring in a verdict

in the teeth of both law and facts."

In Gregg v. Georgia, 428 U.S. 153 (1976):

“Juries are invariably given

careful instructions on the law and

how to apply it before they are

authorized to decide the merits of

a lawsuit. It would be virtually

unthinkable to follow any other

course ina legal system that has

traditionally operated by following

prior precedents and fixed rules of

law...When erroneous’ instructions

are given, retrial is often

required, It is quite simply a

hallmark of our legal system that

juries be carefully and adequately

guided in their deliberations."

30

4. SHOULD PETITIONER'S WIFE'S

TESTIMONY, ADMITTED OVER OBJECTION ON

THE SPOUSAL PRIVILEGE, AND THE $7,060

CASHIER'S CHECK SEIZED WITHOUT A

WARRANT, HAVE BEEN ALLOWED TO PROVE

THE SECOND PERSON REQUIRED IN A

CONSPIRACY?

The only possible co-conspirator was

Oscar Gil. None of the telephone’ taped

conversations identified him as being a

party thereto with the exception of one

statement made by petitioner's wife, who

answered the phone, and then turned to

her husband and said, "It's Gil." This

went in over petitioner's objections that

it violated the Canadian criminal code,

Martin's Criminal Code, 1978, Section

178.16 (5) and this court's latest

decision on a spousal privilege, Trammel

v. United States, 445 U.S. 48, (1980).

31

Katz v. U.S., (1967) 389 U.S. 347,

holds that "(S)earches conducted outside

the judicial process, without prior

approval by judge or magistrate, are per

se unreasonable under the Fourth

Amendment - subject only to a few

specifically established and _ well -

delineated exceptions." Stoner ve

California, (1964) 376 U.S. 483 at p.

486, adds that "The search...without

warrant...can survive constitutional

inhibition only upon a showing that’ the

surrounding facts brought it within one

of the exceptions to the rule that a

search must rest upon a search warrant."

U.S. v. Murrie, (6th Cir. 1976) 534

F.2d 698, holds that "(T)he burden of

proof of exigent or exceptional

circumstances to justify...a deviation

from the Fourth Amendment is upon’ those

32

who are seeking the advantage of

exception." "(T)he burden is on _ those

seeking the exception to show the need

for it." U.S. v. Jeffers, (1951) U.S.

248, at p. 51.

As this cashiers check made payable to

Gil was the only piece of physical

evidence linking petitioner as to this

claimed conspiracy with Gil, the

prejudice from its admission in evidence

against him is obvious. Its receipt in

evidence where no search warrant had

been obtained therefore, when it was

clear the same could have been done and

should have been done, requires that it

should have been excluded. Why didn't

the Government include this in the search

warrant it obtained to seize the money

from petitioner's hotel room? "(T) he

33

exclusionary rule is calculated to

prevent not to repair. Its purpose is to

deter - to compel respect for the

constitutional guarantee in the only

effectively available way, by removing

the incentive to disregard it." Elkins v.

U.S., (1960) 364 U.S. 206, at p. 217.

This was never calculated to be or

considered as a border search at any time

until long after trial and then was used

after the fact to try to justify this

illegal search without a warrant.

CONCLUSION

For the reasons’ stated and the

authorities cited, petitioner prays that

this Court grant this petition for a writ

of certiorari.

34

DATED August l, 1983.

MOSES LAW FIRM

The Terrance - Penthouse

388 North 25th Street

P. O. Box 2533

Billings, Montana

CHARLES F. MOSES

ATTORNEYS FOR PETITIONER

FILING AND SERVICE VERIFICATION

STATE OF MONTANA )

) ss.

County of Yellowstone )

CHARLES F. MOSES, of legal age, being

first duly sworn on his oath, deposes and

says that he is the attorney for

petitioner herein, and that he personally

has timely filed this Petition by

depositing the same at the Main United

States Post Office in Billings, Montana,

first class postage prepaid and affixed,

and properly addressed to the Clerk of

35

this Court, on August 1, 1983, which is

timely as within 6@ days of this date of

denial of petitioner's timely Petition

for Rehearing before the respondent

United States District Court of Appeals

for the Ninth Circuit on June 1, 1983

(which sixtieth day fell on Sunday, July

31, 1983).

Affiant further states that this

Petition was at such same time and place

served by mail on the Respondent United

States of America by mailing three

copies thereof to:

Solicitor General

Department of Justice

Washington, D.C. 20538

and three copies thereof to:

36

Byron H. Dunbar

United States Attorney

Federal Building

Billings, Montana 59191

Attention: R. L. Zimmerman

Assistant United States Attorney

Dh baer.

CHARLES F. MOSES

SUBSCRIBED AND SWORN to before me this

lst day of August, 19

Wa

Notary Public for the State of

Montana, Residing at Billings,

Montana

My Commission Expires: June 10, 1984

Appendix

Memorandum (Unreported

decision of Ninth Circuit

Court of Appeals, Cause

No. 82-1589 - March 7,

1982, 703 F.2d 577

Judgment and Commitment

(Unreported decision of

Montana United States

District Cause No. CR -

82-25-GF

Indictment -United States

of America v. Michael Jean

Bouclin, et al.

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 82-1589

DC #CR-82-25-1-PGH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL JEAN BOUCLIN,

Defendant-Appellant.

MEMORANDUM

Appeal from the United States District

Court for the District of Montana

Paul G. Hatfield, District Judge,

Presiding

Argued and submitted February 7, 1983

Before: WALLACE, ANDERSON, and SCHROEDER,

Circuit Judges.

Michael Bouclin appeals’ from his

conviction of conspiring to possess

cocaine with intent to distribute, making

a false statement in a customs

declaration and bringing more than $5,000

in monetary instruments into the United

States without filing the required

report. Appellant raises several issues,

Bouclin first argues that the district

court erred in denying a continuance

motion sought by new counsel a few days

before trial. The district court noted

that the motion was prompted by

appellant's own desire to substitute

counsel and that a long, unexplained

delay occurred before appellant moved for

that substitution. The district court

did not abuse its discretion. United

States v. Veatch, 647 F.2d 995, (9th Cir.

1981); Umited States v. Hernandez, 6068

F.2d 741, 746 (9th Cir. 1979).

Appellant next challenges the

admission of telephone recordings made

pursuant to a Canadian wiretap which, he

argues, was improperly authorized under

United States constitutional standards.

This court has clearly stated, however,

that neither the fourth amendment nor the

exclusionary rule applied to searches and

evidence obtained by foreign officials

outside the United States. United States

v. Maher, 645 F.2d 780 (9th Cir. 1981).

The only exceptions are when American

officials induce foreign police conduct

which shocks the conscience or when

foreign officials act as agents for their

American counterparts in a "joint

venture", See Maher, supra, 645 F.2d at

782-82; United States v. Rose, 570 F.2d

1358, 1361-62 (9th Cir. 1978); Stonehill

v. United States, 485 F.2d 738, 743 (9th

Cir. 1968), cert. denied, 395 U.S. 966,

89 S.Ct. 2102 (1969).

The investigation in this case, like

the investigation in Maher, was,

according to the record before us,

“initiated and controlled by Canadian

police, with only limited support and

assistance from American officials."

Maher, supra, 645 F.2d at 783. There is

no evidence of American inducement or

conduct that amounts to a "Joint

venture," and the trial court properly

admitted the evidence. Appellant's

argument that he should have been allowed

discecvery, in contravention of Canadian

law, to try to show American involvement

is without merit. He was entitled to

allowable discovery of records of United

States Authorities, and such

opportunities were not foreclosed.

Appellant next argues that the jury

should have received further proffered

instructions based on two defense

theories. The first theory is that the

government did not prove a_ conspiracy

because it only established a_ single

buyer-seller relationship. See United

States v. Prieskorn, 658 F.2d 631, 634,

(8th Cir. 1981). The second is that he

withdrew from the conspiracy and that

withdrawal is a complete defense to a

conspiracy charge.

The jury must be instructed on a

defense theory if there is evidence to

Support it and a proper request is made.

Prieskorn, supra, 658 F.2d at 636. See

also United States v. Kenny, 645 F.2d

1323, 1337 (9th Cir.), cert. denied, 452

U.S. 920,, 101 S. Ct. 3059 (1981). Here,

the government proved more than a_ single

buyer-seller transaction which physically

involves a single transient agreement and

small amount of drugs consistent with

personal use. See Prieskorn, supra, 658

F.2d at 634. The evidence presented

clearly showed that this’ transaction

involved a large amount of drugs and that

it was part of a venture extending beyond

the single buyer and seller. See

Prieskorn, supra, 658 F.2d at 635, citing

United States v. Magnanops, 543 F.2d 431

(2d Cir. 1976), cert. denied, 429 U.S.

1691, 97 S. Ct. 11080 (1977); United

States v. Torres, 503 F.2d 1124 (2d

1974).

Appellant's position with respect to

the withdrawal defense is also untenable,

The proposed instruction that withdrawal

is a complete defense to illegal

participation in a conspiracy is contrary

to well settled principles.

Participation occurs when an overt act is

taken in furtherance of an illegal

agreement; "to avoid complicity in the

conspiracy, one must withdraw before any

overt act is taken in futherance of the

agreement." United States v. Monroe

552 F.2d 860, 864 (9th Cir.), cert.

denied, 431 U.S. 972, 97S. Ct. 2936

(1977).

Bouclin also argues’ that certain

evidence was improperly admitted. There

is no merit to his contention that the

statement "it's Oscar," made by his wife

when she answered the phone, was subject

to the spousal privilege. The statement

was not a confidential communication

which the privilege was intended to

protect. See United States Ve

Lefkowitz, 618 F.2d 1313, 1317-18 (9th

Cir.), cert. denied, 449 U.S. 824, 101 S.

Ct. 86 (1986), citing Blau v. United

States, 3480 U.S. 332, 333, 71 S. Ct. 361

(1951). Moreover, appellant's wife never

asserted any alleged privilege. See

Trammel v. United States, 440 U.S. 46,

100 S. Ct. 906 (1988) (privilege must be

asserted by spousal witness).

The admission of a $7,000 cashier's

check made payable to Oscar Gil was not

reversible error. Although the check was

seized in a warrantless’ search of

Bouclin's plane, the search was an

extended border search which requires no

warrant or probable cause. United States

v. Expericueta-Reyes, 631 F.2d 616, 619,

(9th Cir. 1980). Bouclin's plane was

under constant surveillance from the time

it landed; there is no doubt that’ the

check was put there prior to entry and,

therefore, that it was illegally brought

into the country. See United States v.

Jacobson, 647 F.2d 998, 993 (9th Cir.)

cert. denied, 454 U.S. 398, 102 S. Ct.

897 (1981); Expericueta-Reyes, supra, 631

F.2d at 619-20. Moreover, any error in

the search, and therefore in the

admission of the check, due to the time

that elapsed after entry into the country

was harmless beyond a reasonable doubt.

Appellant's final argument is that he

was prejudiced because certain portions

of the wiretap tapes were replayed and

because the jury was allowed to take the

tapes as well as transcriptions into the

jury room, However, he trial judge did

not commit any error in this regard. The

tapes were evidence which the jury was

entitled to consider in their

deliberations. Tape transcriptions have

long been recognized as valuable aids to

juries. See, e.g., United States v.

Tornabene, 687 F.2d 312, 317 (9th Cir.

1982); Umited States v. Turner, 528 F.2d

143, 167-68 (9th Cir.), cert. denied, 423

U.S. 996, 96 S. Ct. 426 (1975).

Affirmed.

Decided and filed March 7, 1983.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

No. CR-82-25-GF

UNITED STATES OF AMERICA,

Petitioner,

Vv.

MICHAEL G. BOUCLIN,

Defendant.

JUDGMENT AND COMMITMENT

On the 4th day of October, 1982, came

Robert Zimmerman, Assistant United States

Attorney for the District of Montana, and

the defendant, MICHAEL JEAN BOUCLIN,

appearing in his proper person and

represented by his counsel, Charles F.

‘

Moses, Esq.;

And the defendant having been

convicted upon his plea of not guilty by

the jury of the offenses charged in

Counts I, IV and vV of the indictment

herein;

And the defendant having been asked

whether he has anything to. say why

judgment should not be pronounced against

him, and no sufficient cause to the

contrary appearing or being shown to the

Court,

sy IS BY THE COURT ORDERED AND

ADJUDGED that the defendant, MICHAEL JEAN

BOUCLIN, be committed to the custody of

the Attorney General of the United

States, or his authorized representative,

for imprisonment for the term of ten (10)

years on Count I.

It is the further order of this court

that the defendant serve a special parole

term of three (3) years.

IT IS ADJUDGED that on Count IV

Gefendant is hereby committed to

custody of the Attorney General or

authorized representative

imprisonment for a term of three

years.

IT IS ADJUDGED that on Count V

defendant is hereby committed to

custody of the Attorney General or

authorized representative

imprisonment for a term of three

years.

the

the

his

for

(3)

the

the

his

for

(3)

Said sentences on Count IV and Count V

are to run concurrently with the sentence

on Count I.

s/ Paul G. Hatfield

PAUL G. HATFIELD

UNITED STATES DISTRICT JUDGE

Filed October 6, 1982

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Ve

MICHAEL JEAN BOUCLIN,

OSCAR GIL,

KENNETH WILSON JACKSON, and

ANGEL MANUEL RIVERA,

Defendants.

Counts 1 & 2: 21 U.S.C. Section 841 (a) (1)

($25,000 and/or 15 years)

Counts 3: 21 U.S.C. Section 843(b)

($30,000 and/or 4 years)

Counts 4: 18 U.S.C. Section 10601

($10,000 and/or 5 years)

Counts 5: 21 U.S.C. Section 846

($500,000 and/or 5 years)

INDICTMENT

THE GRAND JURY CHARGES:

I.

l. From on or about the 6th day of

February, 1982, to on or about the 19th

day of February, 1982, in the District of

Montana, and elsewhere, OSCARE GIL,

MICHAEL JEAN BOUCLIN, KENNETH WILSON

JACKSON, and ANGEL MANUEL RIVERA, the

defendants herein, wilfully and knowingly

did combine, conspire, confederate and

agree together, with each other, and with

diverse other persons whose names are to

the Grand Jury unknown, to commit = an

offense against the law of the United

States, that is:

To knowingly and unlawfully possess

with intent to distribute cocaine, a

Schedule II narcotic controlled

substance, in violation of Title 21,

United States Code, Section 841l(a)(1).

All in violation of Title 21, United

States Code, Section 846.

OVERT ACTS

In furtherance of the aforesaid

conspiracy and to effect the objects and

purposes thereof, OSCAR GIL, MICHAEL JEAN

BOUCLIN, KENNETH WILLIAM JACKSON, and

ANGEL MANUEL RIVERA performed overt acts

in the District of Montana, and

elsewhere, including but not limited to

the following:

l. On or about February 6, 1982,

OSCAR GIL, from the State of New York,

telephoned MICHAEL JEAN BOUCLIN, in the

Province of Saskatchewan, Canada, to

discuss the sale of cocaine to MICHAEL

JEAN BOUCLIN.

2. On or about February 14, 1982,

MICHAEL JEAN BOUCLIN, from the’ Province

of Saskatchewan, Canada, telephoned OSCAR

GIL and provided him with a "safe"

nmumber, at which the said BOUCLIN' could

be called to discuss further details

concerning the sale of cocaine.

Je On February 14, 1982, OSCAR GIL,

from the State of New York, telephoned

MICHAEL JEAN BOUCLIN to inquire as_ to

whether or not the 18th day of February,

1982, would be convenient for the cocaine

transaction an during said conversation

the quantity of cocaine to be purchased

as well as the details of the transaction

were determined.

4. On February 16, 1982, KENNETH

WILSON JACKSON, from the Province o

Saskatchewan, Canada, called OSCAR GIL in

the State of New York to confirm that

cocaine would be sent to Great Falls,

Montana, for said KENNETH WILSON JACKSON.

ae On February 7, 1982, MICHAEL JEAN

BOUCLIN, from the Province of

Saskatchewan, Canada, called OSCAR GIL

and advised OSCAR GIL that MICHAEL JEAN

BOUCLIN had all of the money for the

cocaine transaction.

6. On February 18, 1982, in the State

of New York, OSCAR GIL recruited ANGEL

MANUEL RIVERA to transport the cocaine

from the State of New York to Great

Falls, in the State and District of

Montana.

7. On February 18, 1982, ANGEL MANUEL

RIVERA transported approximately 1024.2

grams of cocaine from the State of New

York to Great Falls, in the State and

District of Montana.

8. On February 18, 1982, MICHAEL JEAN

BOUCLIN flew from Canada _ to Havre,

Montana, and then drove to Great Falls,

Montana.

9. On February 18, 1982, ANGEL MANUEL

RIVERA at Great Falls, Montana, called

OSCAR GIL in the State of New York to

advise him of his room number in Great

Falls, Montana.

10. On February 18, 1982, MICHAEL

JEAN BOUCLIN at Great Falls, Montana,

called OSCAR GIL in the State of New York

to determine what room number ANGEL

MANUEL RIVERA was in in Great Falls,

Montana.

> On February 18, 1982, in Great

Falls, Montana, MICHAEL JEAN BOUCLIN and

ANGEL MANUEL RIVERA met for purposes of

allowing MICHAEL JEAN BOUCLIN to examine

the cocaine.

COUNT I

On or about February 18, 1982, in

Great Falls, in the State of District of

Montana, ANGEL MANUEL RIVERA knowningly

and unlawfully did possess with intent to

distribute approximately one kilogram of

cocaine, a Schedule IZ, narcotic

controlled substance, in violation of

Title 21, United States Code, Section

841(a) (1).

COUNT I

That on or about the 18th day of

February, 1982, in the District of

Montana, ANGEL MANUEL RIVERA knowingly

and intentionally did use a communication

facility, that is, a telephone, in

facilitating a conspiracy to possess,

with intent to distribute, concaine, a

schedule II narcotic controlled

substance, a_ felony under Title 21,

U.S.C. Section 846, in the ANGEL MANUEL

RIVERA used said telephone to transmit

to OSCAR GIL, in the State of New York, a

communication to advise the said OSCAR

GIL of his (Rivera's) room number so that

the said OSCAR GIL could advise another

where the cocaine was located, in

violation of 21 U.S.C. section 843(b).

On February 18, 1982, the defendant

OSCAR GIL aided, abetted, counseled,

commanded and procured the commission of

the offense alleged above in violation of

Title 18 United States Code, Section 2

and Title 21, United States Code, Section

843(b).

9. On February 18, 1982, ANGEL MANUEL

RIVERA at Great Falls, Montana, called

OSCAR GIL in the State of New York to

advise him of his room number in Great

Falls, Montana.

16. On February 18, 1982, MICHAEL

JEAN BOUCLIN at Great Falls, Montana,

called OSCAR GIL in the State of New York

to determine what room number ANGEL

MANUEL RIVERA was in in Great Falls,

Montana.

ll. On February 18, 1982, in Great

Falls, Montana, MICHAEL JEAN BOUCLIN and

ANGEL MANUEL RIVERA met for purposes of

allowing MICHAEL JEAN BOUCLIN to examine

cocaine.

COUNT II

On or about February 18, 1982, in

Great Falls, in the State and District of

Montana, ANGEL MANUEL RIVERA knowingly

and unlawfully did possess with intent to

distribute approximately one kilogram of

cocaine, a Schedule II, narcotic

controlled substance, in violation of

Title 21, United States Code, Section 841

(a) (1).

COUNT I

On or about the 18th day of February,

1982, in the District of Montana, MICHAEL

JEAN BOUCLIN wilfully and knowingly

did make and cause to be made a_ false,

fictitious and fraudulent statement and

representation as to a material fact ina

matter within the jurisdiction of the

United States Department of the Treasury,

in that in a Customs Delcaration

submitted to the said Department of the

Treasury, MICHAEL JEAN BOUCLIN stated and

represented that he was not carrying over

$5,000.80 (or the equivalent value in

any currency) in monetary instruments,

whereas in truth and fact, as he then

knew, he was carrying approximately

$38,000.08 in United States currency an

approximately $29,374.08 in Canadian

currency, and $6080.00 in traveler's

checks in U. S. funds, in violation of 18

U.S.C. Section 1001.

COUNT Vv

On or about the 18th day of February,

1982, in the District of Montana, MICHAEL

JEAN BOUCLIN wilfully did transport, from

Canada to Havre, Montana, a place within

the United States, on one occasion,

monetary instruments exceeding $5,000.00

without filing a report in violation of

Title 31, United States Code, Section

1161 and said violation was committed in

the futherance of another violation of

Federal law, to-wit: conspiracy to

possess cocaine, a Schedule II narcotic

controlled substance, with the intent to

distribute it, in violation of Title 21,

United States Code, Section 846.

A TRUE BILL.

s/ Joyce Carroll

FOREPERSON

s/ Byron H. Dunbar

BYRON H. DUNBAR

UNITED STATES ATTORNEY