Petition — Dixon v. United States

5-452 | TT Eom

No. SEP 16 1363

In The p SLERK

Supreme Court of the United States

October Term, 1983

PATRICK DIXON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

HOPE C. LEFEBER

Attorney for Petitioner

Suite 900, Bourse Building

21 South Fifth Street

Philadelphia, Pennsylvania 19106

Of Counsel: (215) 592-7767

F. EMMETT FITZPATRICK, P.C.

F. EMMETT FITZPATRICK

28th Floor

2000 Market Street

Philadelphia, Pennsylvania 19103

(215) 568-2700

B79 2

*NJ (201) 257-68500NY 212) 340-94940PA 215) 563-5587

MA 617) 542-1114°DC 202) 783-7288°eUSA 800) 221 0008

QUESTIONS PRESENTED FOR REVIEW

1. Whether the indictment should have been dismissed for

deliberate and flagrant acts of prosecutorial misconduct.

2. Whether Count I of the indictment should have been

dismissed as being duplicitious.

3. Whether the admission of evidence improperly seized

during an earlier arrest violated petitioner’s rights under the Fourth

Amendment of the United States Constitution.

4. Whether the admission of hearsay testimony relating to

a drug transaction that occurred after the conspiracy ended

constituted prejudicial error.

5. Whether the lower court improperly charged the jury that

they could find the petitioner guilty of a defense not charged in

the indictment.

ii

TABLE OF CONTENTS

Questions Presented for Review .. .....s.ccccedcccscces

ee ee Saude kue eee habcnaeeen

I sc oN ga aeveenioseenuuwee

dsl. i cachsldesaae ove sy sew ackaes tee ut

al hE aT ie co ee Re ce Rest

Statutory and Constitutional Provisions Involved ........

I EOE a AIDS i REE oe ie!

os i cess ncn by dee he bones

rn rn Or Pe. Jccnmeecebeveseus

Reasons for Granting the Writ:

I,

Il.

Ill.

oa as auca ae ue ee aor

The Court should take this opportunity to settle the

issue of the requisite level of prosecutorial misconduct

which mandates dismissal of an indictment. ......

The decisions of the courts below affirming the

conviction under Count I of the indictment represent

such radical departure from established case law which

prohibits duplicitious counts in indictments, so as to

warrant the exercise of the supervisory power of this

Page

in

iit

Contents

Poze

IV. The decisions of the courts below a/firming the

conviction based upon the admission of evidence

illegally seized from petitioner during a prior arrest,

wherein the charges were subsequently dismissed,

represent such a radical departure from the established

decisions of this Court and other courts, so as to

warrant the exercise of the supervisory power of the

SN arcs CW ncaa mined cod bi ca beN ee arcsec we ad's 1]

V. The decisions of the courts below affirming the

conviction based upon the admission of hearsay

testimony relating to transactions occuring subsequent

to the termination of the conspiracy, represent such

a radical departure from established case law so as

to warrant the exercise of the supervisory power of

eS Cea ass caccounedass danse vemabesobss 14

VI. The decisions of the courts below affirming the

conviction based upon an improper instruction to the

jury wherein the jury was instructed that the defendant

could be found guilty of an offense not charged in

the indictment, represent such a radical departure from

the established case law so as to warrant the exercise

of the supervisory power of this Court........... 16

CI Sa on ate da ede dena maka Kanaan 18

TABLE OF CITATIONS

Cases Cited:

Arkansas v. Sanders, 442 U.S. 753 (1979) ............. 12, 13

iv

Contents

Page

Carroll v. United States, 267 U.S. 132 .............005- 12

New York v. Belton, 101 S. Ct. 2860 (1981)............ 13

Robbins v. California, 101 S. Ct. 2841 (1981)........... 12

Torres v. Commonwealth of Puerto Rico, 442 U.S. 465 (1979)

Lie cisaMeaea i dake e Mentha he anbainiRehersadpstnhss 12

United States v. Basurto, 497 F.2d 781 (9th Cir. 1974)... 9

United States v. Birdman, 602 F.2d 547 (3 Cir. 1979).... 9

United States v. Bizzard, 615 F.2d 1080 (Sth Cir.), on remand,

493 F. Supp. 1084, aff'd, 674 F.2d 1382 (1980) ..... 17

United States v. Boyd, 595 F.2d 120 (3rd Cir. 1978)..... 16

United States v. Brown, 671 F.2d 585 (D.C. Cir. 1982)

PR a eee Pig REA eee Ree, Rye ere 13

United States v. Bruzgo, 373 F.2d 383 (3 Cir. 1967)..... 9

United States v. Chadwick, 443 U.S. 1..........--- eee, 12

United States v. Eubanks, 591 F.2d $13 (9th Cir. 1979)

RIG Ka ca ahGSs is baewh Save dal CHER eaes kh epee 16

Vv

Contents

Page

United States v. Henderson, 525 F.2d 274 (Sth Cir. 1975)

Eee eee eee ae le obec aed ecaceeween +

United States v. Jacobs, $47 F.2d 772 (2nd Cir. 1976), cert.

ee Se OE ED CEOS C.. oc ccc cecvceccvass 9

United States v. James, $90 F.2d $75 (Sth Cir. 1979).... 15

United States v. Kearney, 451 F. Supp. 33 (S.D.N.Y. 1978)

LE pe BAe Meise SDR Reel apie at AE ies Sa as ce a Se 11

United States v. Lieberman, 637 F.2d 95 (2nd Cir. 1980)

Nae I eo cigialeelgicecoewews 16

United States v. Moore, 522 F.2d 1068 (9th Cir. 1975), cert.

ee Oe ee, I CUD, oc occccccccccceevus 16

United States v. Nixon, 418 U.S. 683 (1974) ............ 14

United States v. Pazsint, 703 F.2d 420 (9th Cir. 1983)... 17

United States v. Perez, 658 F.2d 654 (9th Cir. 1981)..... 14

United States v. Riccobene, 451 F.2d $86 (3rd Cir. 1971)

EG Rr ne ad wc Wel can bake mekilwe 9

United States v. Rodriguez, 689 F.2d $16 (Sth Cir. 1982)

I, er ee ee are ee 15

vi

Contents

Page

United States v. Serubo, 604 F.2d 807 (3rd Cir. 1979)... 9

United States v. Starks, $15 F.2d 112 (3rd Cir. 1975).... 10

United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied,

tr eS oS i cine diane ous deut wis ll

United States v. Tombrello, 666 F.2d 485 (11th Cir. 1982),

en ee I ce wc cece eee ts oeeeps 16

United States v. Traylor, 656 F.2d 1326 (9th Cir. 1981)

United States v. Zolli, $1 F.R.D. §22 (F.D.N.Y. 1970)... 11

Vance v. United States, 676 F.2d 183 (Sth Cir. 1982).... 13

Statutes Cited:

ee a's ole Cade wwoge esse ,

oe ew wee SGmebunee ,

es I Rs, ooo wv cnccdcccncecsnerese 2

United States Constitution Cited:

IE ei a ne obese ete ene ebimae oe

vii

Contents

Page

PE EE on bode k cate s.rqesiss pe eeseecesee Cope ee 1]

eT | POET EL TE POLE TT ERTS E TR RCO ee >.

Rules Cited:

Federal Rule of Criminal Procedure 8(a) ............... 10

Federal Rule of Evidence 801(d)(2)(e) ........ 0. cece eens 14

nr MEP isn ue dvaasenesncs sean aadcey 5

Other Authority Cited:

1 Wright, Federal Practice and Procedure: Criminal 2d,

PE Ci cosc4 wie Gea kan ER baw ea bale on when's 11

APPENDIX

Judgment Order of the United States Court of Appeals for

ee ME: as aid ia sn ie ae Ky wid awed kame ee la

I a a nat Ek Nr Ter lie ate 3a

No.

In The

Supreme Court of the United States

—

—

October Term, 1983

PATRICK DIXON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

The petitioner Patrick Dixon respectfully prays to this

Honorable Court that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Third

Circuit, which affirmed his judgment of conviction entered upon

a jury verdict of guilty.

OPINION BELOW

3

mY

The judgment order of the United States Court of Appeals

for the Third Circuit was entered on July 27, 1983 and is annexed

hereto (Appendix, 1a). The instant petition for a writ of certiorari

was filed within sixty (60) days of that date.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to Section

1254(a) of Title 28 of the United States Code, 28 U.S.C. Section

1254(a).

STAIiUTORY AND

CONSTITUTIONAL PROVISIONS INVOLVED

Section 841(a) of Title 21 of the United States Code, 21 U.S.C.

Section 841(a), which provides:

(a) Except as authorized by this subchapter,

it shall be unlawful for any person knowingly or

intentionally —

(1) to manufacture, distribute, or dispense,

or possess with intent to manufacture, distribute,

or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or

possess with intent to distribute or dispense, a

counterfeit substance.

Section 846 of Title 21 of the United States Code, 21 U.S.C.

Section 846, which provides:

Any person who attempts or conspires to

commit any offense defined in this subchapter is

punishable by imprisonment or fine or both which

may not exceed the maximum punishment

prescribed for the offense, the commission of

which was the object of the attempt or conspiracy.

United States Constitution, Fourth Amendment provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.

United States Constitution, Sixth Amendment:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district wherein

the crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

STATEMENT OF THE CASE

A. Procedural History

On June 16, 1982, petitioner was found guilty of conspriracy

to manufacture and distribute methamphetamine and to distribute

and posses: phenyl-2-propanone (p-2-p), in violation of Title 21,

United States Code, Section 841, and with the unlawful attempt

to possess with the intent to distribute p-2-p, in violation of Title

21, United States Code, Section 846. Petitioner thereafter filed

motions for judgment of acquittal and for a new trial, which

motions were denied by the District Court.

A final judgment of sentence was imposed upon petitioner

on July 30, 1982, and petitioner thereafter appealed from that

judgment of sentence to the Court of Appeals.

On July 27, 1983, the Court of Appeals for the Third Circuit

affirmed the judgment of the District Court.

B. Concise Statement of Facts

Petitioner Patrick Dixon was one of thirty-eight persons

arrested as a result of an undercover scam operation conducted

by Ronald Raitan, the Federal Bureau of Investigation and the

Drug Enforcement Agency. Mr. Dixon had been an unskilled

laborer and truck driver all of his adult life. He became acquainted

with Ronald Raitan when Mr. Raitan took over a trucking firm

that employed Dixon. He worked for Raitan as a truck driver

and became friendly with Raitan over a period of time.

Raitan used Dixon to pick up and deliver certain chemical

substances which were not, prior to February 1980, controlled

substances. He never identified to Dixon the true nature of the

substances, but always assured him that there was nothing illegal

about what Dixon was being asked to do.

On July 31, 1981, while Raitan was working under the full

direction and control of the federal authorities, he instructed Dixon

to come to his apartment with some money and he gave Dixon

a substance which Raitan described as p-2-p, but that was not

p-2-p, but some doctored or adulterated substance manufactured

by federal authorities.

Dixon was convicted of conspiracy to manufacture and

distribute methamphetamine, and to distribute and to possess p-2-p

and with the unlawful attempting to possess p-2-p.

REASONS FOR GRANTING THE WRIT

I.

Preliminary Statement.

This Court’s Rule 17 considerations here applicable are that

the District Court and the Court of Appeals have so far departed

from the usual course of judicial proceedings as to call for an

exercise of this Court’s supervisory power and have rendered a

decision on important questions of federal law in conflict with

the decisions of other federal courts of appeals.

The issues decided by the courts below, i.e., (1) whether

prosecutorial misconduct of the degree which occurred in this case

warrants dismissal of the indictment, (2) whether Count I of the

indictment should have been dismissed as being duplicitious, (3)

whether evidence illegally seized during an earlier arrest is

admissible at a subsequent trial, (4) whether hearsay testimony

relating to a drug transaction occurring after the conspiracy charge

has ended is admissible, and (5) whether evidence can be admitted

and the jury charged as to offenses not charged in the indictment,

are important questions of federal law that go to the integrity

of the judicial process, thereby justifying the exercise of this

Court’s supervisory powers. For these reasons, a writ of certiorari

should issue to review the judgment of the Court of Appeals.

The Court should take this opportunity to settle the issue

of the requisite level of prosecutorial misconduct which mandates

dismissal of an indictment.

Both petitioner’s indictment and conviction were obtained

upon the reported activity of Ronald Raitan, who has described

himself as the largest and at one time the only distributor of p-2-p.

Mr. Raitan’s testimony shows him to be an unscrupulous

businessman who rose to his position as an exclusive distributor

of p-2-p through his knowledge and application of the principles

of international commerce.

Mr. Raitan became aware of the fact that his drug-related

activities had come to the attention of law enforcement when he

was arrested during the distribution of cocaine. In order to escape

conviction, he paid a government witness to perjure herself. He

admitted using $4,000 to $5,000 worth of cocaine a week.

By the end of 1980, he approached the Drug Enforcement

Administration and tried to make a deal. They refused because

they regarded him as a major drug dealer. He then approached

the Philadelphia Police Department in January, 1981 and began

what he called ‘‘cooperation’’. Through his contacts with the

Philadelphia Police Department, he was placed in touch with the

FBI and this time, promised to cooperate in the arrests of organized

crime figures. On April 2, 1981, he began to cooperate with the

Federal Bureau of Investigation.

In spite of his attempts to gain government favor by

cooperating with the FBI, Raitan continued his narcotics

trafficking activities. By his own estimate, he sold approximately

100 gallons of p-2-p after he began to cooperate with the FBI.

The money from his drug d¢ais was invested both in the United

States and overseas; this amount is estimated at approximately

$2,000,000. His investments in this country alone were earning

him $21,000 a month in interest.

Raitan paid no income taxes for the years 1979 or 1980 when

he was accumulating this vast fortune. When he realized that all

his assets were subject to confiscations since ney came from illegal

drug sales, his agreement with the federal government was that

he would only pay taxes upon them and that they would not be

confiscated.

Not only did the government agree with Mr. Raitan that he

could keep his ill-gotten goods, but they further agreed that there

would be no criminal penalty for failure to file income taxes.

During the time that Mr. Raitan was in the process of

negotiating this deal with the federal government, not only was

he continuing to make money by dealing in drugs, but he began

to deal with agents of the federal government and members of

the United States Attorney’s Office. He made a loan to an

Assistant United States Attorney; he sold his Flc.:ua condominium

to a member of the FBI at a discount. He sold various articles

of furniture and furnishings to members of the FBI. He gave a

gun to his contact on the Philadelphia Police Department. The

lower court found, after a hearing, that none of these people were

directly involved with recommending the deal for Mr. Raitan.

The final recommendation of the government was that Mr. Raitan

was to undergo an additional one and one-half years

imprisonment, on top of a five-year sentence that he already had.

This meant that he would serve a total prison sentence of six and

one-half years for his part in the distribution of 20,000 pounds

of methamphetamine. The government also agreed that they would

not oppose his application for earlier parole nor would they have

any objection to him receiving a passport and leaving the country

whenever he is eventually released from prison.

Originally, the Drug Enforcement Agency was not interested

in information which Mr. Raitan could give them about people

connected with him in distributing p-2-p because they regarded

him as a major drug dealer. The FBI became interested when

he gave up two alleged organized crime figures. However, these

two people in and of themselves were not sufficient to justify

Mr. Raitan’s deal and after he signed his agreement on June 11,

he began to assemble incriminating information against people

who had worked for him or befriended him over the years. A

total of thirty-eight defendants were arrested and eventually stood

trial. But with few exceptions, these were people who had

befriended Ronald Raitan, were in love with him, had worked

for him or whose paths had crossed him at some point. With

few exceptions, none of these individuals had before or since had

any connection with drugs. Two of them were his former

girlfriends. Patrick Dixon, petitioner, was a truck driver employed

by Milestone Trucking Company, which Raitan allegedly took

over. He became involved by making pick-ups and deliveries for

Ronald Raitan.

Petitioner was one of those individuals that Raitan gave up

to the federal government in order to fill out the number of people

they had arrested as a result of Ronald Raitan’s cooperation,

thereby justifying the deal made to Raitan.

The government used Ronald Raitan and Ronald Raitan used

the government. Petitioner was not in the drug business

independent of his contact with Mr. Raitan. The specific offenses

of which he has been found guilty occurred at a period of time

when Raitan was under the complete direction and dominance

of the government. This arrest and a vast majority of the other

arrests were made solely to justify an unconscionable arrangement

which was made between the federal government and Ronald

Raitan which benefited no one but Ronald Raitan. It is

prosecutorial misconduct at its highest level. It transcends the fine

line between investigation and manufactured crime in order to

justify unconstitutional means.

The Court of Appeals for the Third Circuit has recognized

two classes of cases in which the court may properly exercise its

supervisory powers and dismiss an indictment in response to

prosecutorial misconduct. First, dismissal of the indictment is

9

proper where the defendant can show that prosecutorial

misconduct has caused him ‘‘actual prejudice.’’ United States v.

Serubo, 604 F.2d 807, 817 (3rd Cir. 1979); United States v.

Riccobene, 451 F.2d $86, $87 (3rd Cir. 1971); United States v.

Bruzgo, 373 F.2d 383, 386-387 (3rd Cir. 1967).

Second,

. . . (djismissal of the indictment may be proper

even where no actual prejudice has been shown,

if there is evidence that the challenged activity was

something other than an isolated incident

unmotivated by sinister ends, or that the type of

misconduct challenged has become ‘entranched and

flagrant’ in the Circuit. United States v. Serubo,

supra at 817 quoting United States v. Birdman,

602 F.2d $47, 559 (3rd Cir. 1979).

The view that dismissal of an indictment in the exercise of

the supervisory power of the court may be an appropriate remedy

to correct flagrant or persistent abuse, despite the absence of

prejudice to the defendant, is also accepted in other circuits. United

States v. Samango, 607 F.2d 871 (9th Cir. 1979); United States

v. Jacobs, $47 F.2d 772 (2nd Cir. 1976), cert. dismissed, 436 U.S.

431 (1978); United States v. Henderson, §2§ F.2d 274 (Sth Cir.

1975); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974).

In view of the extreme and flagrant misconduct on the part

of the prosecution in manufacturing a crime in order to obtain

additional defendants in which to justify Mr. Raitan’s deal with

the government, it is respectfully submitted that the government's

conduct in this case demands review under this Court’s supervisory

powers.

Because of the potentially far-reaching impact adopted by

the courts below upon the integrity of the judicial process, this

10

Court should grant the instant petition and review the judgment

of the Court of Appeals.

Ill.

The decisions of the courts below affirming the conviction

under Count I of the indictment represent such a radical departure

from established case law which prohibits duplicitious counts in

indictments, so as to warrant the exercise of the supervisory power

of this Court.

Count I of the indictment (4a) charges seven defendants

with conspiring ‘‘to manufacture and to distribute

methamphetamine, and to distribute and possess with the intent

to distribute phenyl-2-propanone (p-2-p), Schedule II non-narcotic

drug-controlled substances.”’ Both chemical substances are

described in the indictment as ‘‘non-narcotic drug-controlled

substances,’’ although from the beginning of the indictment in

May of 1978 through February 1980, p-2-p was nor a controlled

substance.

Objection and argument were made at the court on the

opening day of trial to dismiss Count I for duplicity. Counsel

urged that the indictment had two distinct conspiracies, on

which was to manufacture and distribute methamphetamine and

the other was to distribute and possess with intent to distribute

p-2-p. In the alternative, the court was asked to force the

government to elect. The court denied al! relief.

Rule 8(a) of the Federal Rules of Criminal Procedure requires

that two or more offenses, if contained in the same indictment,

be charged ‘‘in a separate count for each offense.’’ Duplicity is

the joining of two or more separate offenses in the same count

in contravention of that Rule. United States v. Starks, $1§ F.2d

112, 116 (3rd Cir. 1975); United States v. Zolli, $1 F.R.D. $22,

1]

$26 (F.D.N.Y. 1970); United States v. Kearney, 451 F. Supp. 33

(S.D.N.Y. 1978).

It is respectfully submitted that the indictment in this case

is indeed duplicitious in that it charges two distinct conspiracies,

and as such, should never have been submitted to the jury. |

Wright, Federal Practice and Procedure: Criminal 2d, Section 142.

The prohibition against duplicity has its constitutional basis

in the Sixth Amendment’s guarantee that an accused be adequately

‘informed of the nature and cause of the accusation’’ and the

Fifth Amendment’s prohibition against double jeopardy. United

States v. Zeidman, $40 F.2d 314, 316 (7th Cir. 1976); United States

v. Tanner, 471 F.2d 128, 139 (7th Cir.), cert. denied, 409 U.S.

949 (1972). The decisions below, therefore, represent a radical

break from the consistent line of case law.

This departure warrants the exercise of this Court’s

supervisory power, and, accordingly, a writ of certiorari should

issue to review the judgment of the Court of Appeals.

IV.

The decisions of the courts below affirming the conviction

based upon the admission of evidence illegally seized from

petitioner during a prior arrest, wherein the charges were

subsequently dismissed, represent such a radical departure from

the established decisions of this Court and other courts, so as

to warrant the exercise of the supervisory power of the Court.

Petitioner was arrested without a warrant in February of 1980

and certain books, papers and personal records were illegally seized

without a warrant at that time. The charges against petitioner

were subsequently withdrawn by the government.

12.

In February of 1980, petitioner had driven to an airport in

Harrisburg and picked up a shipment which was purported to

be acetone nail polish remover. Actually, this was a box containing

several one-gallon drums which had been seized by and tampered

with by federal agents at the Harrisburg airport before they were

turned over to petitioner. The agents followed petitioner from

Harrisburg to Philadelphia and arrested him outside of a bar.

At that time, they seized the drums, all of which had been filled

with water by the agents after they emptied out their true contents.

At the time of this arrest, certain personal books and records

which were not contraband were seized without the benefit of

a warrant and were never returned subsequent to the dismissal

of the charges. During the trial the court took evidence upon the

defendant’s motion to suppress which was subsequently denied.

In the absence of exigent circumstances, a warrant is normally

a prerequisite to a search. Arkansas v. Sanders, 442 U.S. 753

(1979); Torres v. Commonwealth of Puerto Rico, 442 U.S. 465,

471 (1979); United States v. Chadwick, 443 U.S. 1.

The ‘‘automobile exception’’ from the warrant requirement,

as set forth in Carroll v. United States, 267 U.S. 132, and its

progeny, is not extended to the warrantless search of an

individual's personal belongings merely because they were located

in an automobile. Robbins v. California, 101 S.Ct. 2841 (1981);

Arkansas v. Sanders, supra. The warrantless search of one’s

personal belongings merely because of its location in an automobile

is not justified:

Where - as in the present case - the police, without

endangering themselves or risking loss of the

evidence, lawfully have detained one suspected of

criminal activity and secured his suitcase, they

should delay the search thereof until after judicial

approval has been obtained. In this way, the

13

constitutional rights of suspects to prior judicial

review of searches will be fully litigated. Arkansas

v. Sanders, ibid. at 766.

Although this Court in New York v. Belton, 101 S. Ct. 2860

(1981) held that objects located inside a car’s passenger

compartment that are ‘‘within the arrestee’s immediate control’,

may be searched incident to a lawful custodial arrest, 101 S. Ct.

at 2864-2865, the instant case is inapposite to Be/ron. In this case,

the items seized from petitioner were not in the passenger

compartment of the van, but, rather, were contained in the rear

of the van, not within petitioner’s immediate reach. The United

States Court of Appeals for the District of Columbia in interpreting

Belton held:

. . «Belton covers cases. . .im which the search is

contemporaneous with a lawful custodial arrest,

and is confined to containers in hand or within

reach when the arrest occurs. United States v.

Brown, 671 F.2d $85, §87 (D.C. Cir. 1982); Vance

v. United States, 676 F.2d 183 (Sth Cir. 1982).

The decision below, therefore, represents a radical break from

consistent line of case law.

This departure warrants the exercise of this Court’s

supervisory power, and, accordingly, a writ of certiorari should

issue to review the judgment of the Court of Appeals.

14

Vv.

The decisions of the courts below affirming the conviction

based upon the admission of hearsay testimony relating to

transactions occuring subsequent to the termination of the

conspiracy, represent such a radical departure from established

case law so as to warrant the exercise of the supervisory power

of this Court.

It is well-settled law that prior to the admission of an out-

of-court statement by a co-conspirator under Fed. R. Evid.

801(d)(2)(e), three requirements must be satisfied. First, there must

be independent evidence establishing that the person against whom

this statement is offered participated in the conspiracy. Second,

the statement must have been in furtherance of the conspiracy.

Third, the conspirator’s statement must have been made during

the life of the conspiracy. United States v. Nixon, 418 U.S. 683,

701 (1974); United States v. Perez, 658 F.2d 654, 658 (9th Cir.

1981).

In this case, Agent Dreiwitz testified about a conversation

which occurred at a meeting between himself, Ronald Raitan,

John Abramson and Jerry Lavin. Lavin was a charged co-

defendant in the instant indictment, but pled guilty and did not

stand trial. This conversation occurred on July 1, 1981.

Ronald Raitan signed an agreement with the federal

government on June 11, 1981 and from that point forward,

operated under their direction and under their protection.

Obviously, Ronald Raitan on July 1, 1981, was no longer a

member of the conspiracy.

Over objection, Agent Dreiwitz was permitted to testify that

he heard defendant Lavin say that Lavin had obtained p-2-p from

Dixon. The government never showed any contact or independent

15

conspiracy between Lavin and Dixon. The entire conspiracy, such

as it was, contained Ronald Raitan at its hub. The hub had

obviously been removed on July 1, 1981, by Raitan’s cooperation

with the federal government and there was absolutely no evidence

to show that any conspiracy ever existed between Dixon and Lavin

which could have survived the removal of Ronald Raitan.

Before a: snt can be admitted under the co-conspirator

exception to ti. hearsay rule, there must exist substantial

independent evidence of a conspiracy. The court must find that

‘* ., the prosecution has shown by a preponderance of the

evidence independent of the statement itself (1) that a conspiracy

existed, (2) that the co-conspirator and the defendant against whom

the conspirator’s statement is offered were members of the

conspiracy, and (3) that the statement was made during the course

and in furtherance of the conspiracy.’’ United States v. Rodriguez,

689 F.2d $16, 518 (Sth Cir. 1982), citing United States v. James,

590 F.2d 575, $82 (Sth Cir. 1979).

In this case, there was no proof that a conspiracy came into

being between petitioner and Lavin, or which contained petitioner

and Lavin as two of its members at any time after Raitan left

the conspiracy.

Moreover, the statements which Agent Dreiwitz overheard,

even assuming arguendo, that the existence of a conspiracy had

been proven, were not ‘‘in furtherance of the conspiracy.’’ In

United States v. Traylor, 656 F.2d 1326 (9th Cir. 1981) the court

held that statements allegedly made by one conspirator, which

concerned activities of the conspiracy including future plans, but

which were not made in an effort to induce listener to join the

conspiracy and did not assist conspirators in achieving their

objectives, were not in furtherance of the conspiracy and were

therefore inadmissible against conspirator. Traylor, supra at 1333,

citing United States v. Fielding, 645 F.2d 719, 726-727 (9th Cir.

16

1981), quoting United States v. Eubanks, §91 F.2d $13, $20 (9th

Cir. 1979). The statement by defendant Lavin to Agent Dreiwitz

were mere ‘‘conversation”’ or ‘‘idle chatter’’, which were not in

furtherance of any conspiracy, and, therefore, are not admissible

under the co-conspirator exception to the hearsay rule. United

States v. Traylor, supra at 1332; United States v. Lieberman, 637

F.2d 95 (2nd Cir. 1980); United States v. Moore, $22 F.2d 1068,

1077 (9th Cir. 1975), cert. denied, 423 U.S. 1049 (1976).

Furthermore, in view of the fact that any conspiracy would

have ended upon the removal of Ronald Raitan, the statements

at issue occurred after termination of the conspiracy and, therefore,

were inadmissible. United States v. Tombreilo, 666 F.2d 485, 490

(11th Cir. 1982), cert. denied, 102 S. Ct. 2279; United States v.

Boyd, $95 F.2d 120 (3rd Cir. 1978).

The decisions below, therefore, represent a significant break

from the consistent line of case law which warrants the exercise

of this Court’s supervisory power. Accordingly, a writ of certiorari

should issue to review the judgment of the Circuit Court of

Appeais.

VI.

The decisions of the courts below affirming the conviction

based upon an improper instruction to the jury wherein the jury

was instructed that the defendant could be found guilty of an

offense not charged in the indictment, represent such a radical

departure from the established case law so as to warrant the

exercise of the supervisory power of this Court.

Count I of the indictment charges seven defendants with

conspiracy ‘‘to manufacture and distribute methamphetamine,

and to distribute and possess with the intent to distribute

phenyl-2-propanone (‘‘p-2-p’’), Schedule II, Non-Narcotic Drug

17

Controlled Substances. . . .’” At the time of the conspiracy and

the proof at trial indicated that the alleged conspiracy began on

or about May of 1978 to the date of the indictment.

Until February of 1980, phenyl-2-propanone (p-2-p) was not

a controlled substance. The government took the position that

its possession was completely legal unless it was possessed with

knowledge that it was to be used in the manufacture of

methamphetamine. Possession with knowledge that it was to be

used in methamphetamine is not charged in the indictment.

Nonetheless, the court charged that both methamphetamine

and p-2-p were controlled substances and noted that before

February of 1980, a guilty verdict could be supported under the

conspiracy count if an individual knew that p-2-p was to be used

in the manufacture of methamphetamines. An exception was made

but the court refused to alter its charge.

An indictment cannot be amended, altered or broadened by

any means, including an instruction to the jury. United States

vy. Pazsint, 703 F.2d 420 (9th Cir. 1983); United States v. Bizzard,

615 F.2d 1080 (Sth Cir.), on remand, 493 F. Supp. 1084, aff'd,

674 F.2d 1382 (1980). The decisions below, therefore, represent

a radical break from consistent line of case law.

18

CONCLUSION

This departure warrants the exercise of this Court’s

supervisory power and, accordingly, a writ of certiorari should

issue to review the judgment of the Court of Appeals.

Respectfully submitted,

HOPE C. LEFEBER

Attorney for Petitioner

F. EMMETT FITZPATRICK

Of Counsel

la

APPENDIX

JUDGMENT ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

No. 82-1473

UNITED STATES OF AMERICA

v.

PATRICK DIXON,

Appellant

On Appeal from the United States District Court for the Eastern

District of Pennsylvania

(Crim. No. 82-00014-03)

(Honorable Clarence C. Newcomer)

Argued July 21, 1983

Before: ADAMS and HIGGINBOTHAM, Circuit Judges, and

TEITELBALM, District Judge*

After considering all contentions raised by appellant, namely,

that (1) this indictment should be dismissed because of

prosecutorial misconduct; (2) the Lower Court erred in failing

to find Count One of the indictment duplicitous; (3) the Lower

Court erred in failing to suppress evidence improperly seized from

the defendant in an earlier arrest; (4) the Lower Court improperly

* Honorable Hubert I. Teitelbaum, United States District Court for the

Western District of Pennsylvania, sitting by designation.

2a

Judgment Order

admitted hearsay testimony relating to a drug transaction that

occurred after the conspiracy had ended; (5) the Lower Court

improperly admitted testimony by the Government’s main witness,

Ronald Raiton, and improperly restricted his cross-examination;

and (6) the Lower Court improperly charged the jury that they

could find the defendant guilty of an offense not charged in the

indictment, it is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

BY THE COURT,

s/ Alan M. Adams

Circuit Judge

ATTEST:

s/ Sally Mrvos

Sally Mrvos, Clerk

DATED: JUL 27 1983

3a

INDICTMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CRIMINAL NO.

DATE FILED:

VIOLATIONS: 21 U.S.C. $846

(Conspiracy - 1 count)

21 U.S.C. §846

(Attempt to possess with

intent to distribute P2P - 4

counts)

18 U.S.C. §2

(Aiding and Abetting - 3

counts)

UNITED STATES OF AMERICA

¥.

RICHARD FROST, PHILIP MILESTONE, PATRICK DIXON,

ROBERT C. (‘‘R.C.’’) HARTLEY, GERALD LAVIN,

MITCHELL LIEBERMAN ALEXANDER HARTZEL

COUNT ONE

THE GRAND JURY CHARGES:

1. That from in or about May, 1978 to on or about the date

of this Indictment, in the Eastern District of Pennsylvania, and

elsewhere

4a

Indictment

RICHARD FROST

PHILIP MILESTONE

PATRICK DIXON

ROBERT C. (‘‘R.C.’’) HARTLEY

GERALD LAVIN

MITCHELL LIEBERMAN

ALEXANDER HARTZEL

knowingly and intentionaily did unlawfully combine, conspire,

confederate and agree together and with each other, and with

other persons known and unknown to the Grand Jury, to

manufacture and distribute methamphetamine, and to distribute

and poszess with the intent to distribute phenyl-2-propanone (P2P),

Schedule II non-narcotic drug controlled substances, in violation

of Title 21, United States Code, Section 841.

2. It was a part of the plan and purpose of the conspiracy

that defendant, Joseph DiSantis, Jr., with the assistance of Joseph

DiSantis, Sr., was in partnership with Ronald Raiton, and was

a financier, planner, manager and organizer in obtaining,

manufacturing and distributing methamphetamine, and in

obtaining and distributing P2P.

3. It was a further part of the plan and purpose of the

conspiracy that deferdants, David Gomberg a/k/a David Aion

and Albert Spielvogel a/k/a Al Vogel and Albert McCarter, and

others would purchase, at chemical companies in the United States,

laboratory apparatus and chemicals, including P2P, utilized in

the manufacture of methamphetamine.

4. It was a further part of tie plan and purpose of the

conspiracy that defendants, David Gomberg a/k/a David Aion,

Albert Spielvogel a/k/a Al Vogel and Albert McCarter,

RICHARD FROST, Michelle D’Amico, Ralph DiFronzo, and

Sa

Indictment

others would pick-up and deliver chemicals and equipment for

the manufacture of methamphetamine.

$. It was a further part of the plan and purpose of the

conspiracy that Ronald Raiton and defendant, Joseph DiSantis,

Jr., in partnership with defendants, Eugene Cella and Ivan Stevens,

would and did obtain P2P from other countries, including England

and France, and would and did cause that P2P to be shipped

to and smuggled into the United States with the aid and assistance

of David Gomberg, Lawrence Genaur, Jerome Berman, Jose

Gonzales-Suvillaga, Linda Kravits, PHILIP MILESTONE,

RICHARD FROST, Michelle D'Amico, and others.

S(a). It was a further part of the plan and purpose of the

conspiracy that this P2P would be smuggled into the United States

through ports of entry in Florida.

6. It was a further part of the plan and purpose of the

conspiracy that Ronald Raiton and defendant, Joseph DiSantis,

Jr., in partnership with Harold Levy and Theodore Karrys would

obtain P2P from other countries, including France, West

Germany, and England, and would and did cause that P2P to

be shipped to and smuggled into the United States through Canada

with the aid and assistance of David Gomberg, a/k/a David Aion,

Michelle D’Amico, Ralph DiFronzo and others.

6(a). It was a further part of the plan and purpose of the

conspiracy that this P2P would be ordered by LK forwarding,

a partnership formed by Harold Levy and Theodore Karrys and

would be smuggled into the United States through ports of entry

in New York.

7. It was a further part of the plan and purpose of the

conspiracy that Ronald Raiton and defendant Joseph DiSantis,

6a

Indictment

Jr., with the aid and assistance of Albert Spielvogel, a/k/a Al

Vogel and Albert McCarter, and others started, set-up, and

operated Toro International Trading, a Canadian company, for

the purpose of importing P2P from abroad to the United States.

7(a). It was a further part of the plan and purpose of the

conspiracy that Albert Spielvogel, a/k/a Al Vogel and Albert

McCarter would purchase P2P from companies in France, West

Germany and England, and order the shipment of the P2P to

Nassau, the Bahamas. In the Bahamas, the P2P was stored in

a warehouse known as P.D.Q. Packaging.

7(b). It was a further part of the plan and purpose of the

conspiracy that some of the P2P would be shipped from the

Bahamas to ports of entry in Florida and, thereafter transported

to the Philadelphia area by Albert Spielvogel, a/k/a Al Vogel

and Albert McCarter, PATRICK DIXON, RICHARD FROST,

GERALD LAVIN, Linda Kravitz, Michelle D'Amico, and others.

7(c). It was a further part of the plan and purpose of the

conspiracy that some of the P2P imported into the United States

would arrive by airplane at Trenton and Newark, New Jersey,

Baltimore, Maryland, Wilmington, Delaware and Harrisburg and

Pittsburgh, Pennsylvania and that PATRICK DIXON and others

would pick up the P2P as an alleged employee of Paramount

Delivery Service or Milestone Trucking Company and transport

the P2P to the Philadelphia area.

8. It was a further part of the plan and purpose of the

conspiracy that Ronald Raiton, as the owner of a boat, ‘‘Antares’’

in Fort Lauderdale, Florida, financed various shipments of P2P

into the United States.

8(a). It was a further part of the plan and purpose of the

conspiracy that this P2P would be shipped from European and

7a

Indictment

African countries to Nassau and Freeport, the Bahamas,

Martinique, Barbados and other countries, and thereafter would

be smuggled into the United States by boat.

8(b). It was a further part of the plan and purpose of the

conspiracy that George Azar, Roman Smolen, and others, who

were captains of the boats in which the P2P was shipped from

the Carribean countries, would smuggle the P2P into various ports

of entry in Florida, including Fort Lauderdale.

8(c). It was a further part of the plan and purpose of the

conspiracy that defendant Rosina Marie Papantonio a/k/a BB

Papantonio and Richard Papantonio supervised the shipments

of the P2P from the Bahamas to Florida by, among other things,

coordinating the pick up of the P2P, the boat shipment, and the

unloading of the P2P.

8(d). It was a further part of the plan and purpose of the

conspiracy that defendant Linda Kravits would be in charge of

the drivers into whose cars the P2P would be unloaded in Florida

and then driven to other locations in Florida and to the

Philadelphia area.

8(e). It was a further part of the plan and purpose of the

conspiracy that defendants PATRICK DIXON, Linda Kravitz,

George Azar, and others, with the assistance of Terrence Marmer,

Albert Spielvogel, Frances Harpel, Robert Federa would be drivers

of the organization and would transport P2P from Fort

Lauderdale, Florida to other locations in Florida and to the Eastern

District of Pennsylvania, including Philadelphia.

9. It was a further part of the plan and purpose of the

conspiracy that various individuals would Operate clandestine

laboratories to manufacture methamphetamine from the

8a

Indictment

chemicals, including P2P, and equipment supplied by and through

the conspiracy.

10. It was a further part of the plan and purpose of the

conspiracy that the P2P-which would be re-distributed or used

by the following defendants to manufacture additional

methamphetamine-and the methamphetamine, would be sold and

distributed to Joseph DiSantis, Jr.. PATRICK DIXON,

RICHARD FROST, MITCHELL LIEBERMAN, GERALD

LAVIN, Linda Kravitz, William Catanese, Ralph DiFronzo, David

Gomberg, ROBERT C.(‘'*R.C."’) HARTLEY, Ivan Stevens,

Eugene Cella, George Azar, ALEXANDER AHRTZEL, Frances

Harpel, Sebastian Calabrese, Charles Woolam, a/k/a T-Bird

Charlie and others.

11. It was a further part of the plan and purpose of the

conspiracy that during July and August, 1981, Charles Ramsey,

Frances Harpel, George Azar, MITCHELL LIEBERMAN,

William Catanese, PATRICK DIXON, Joseph DiSantis, Jr.,

GERALD LAVIN, RICHARD FROST, ROBERT (‘'R.C.’’)

HARTLEY, Linda Kravits, and others, would attempt to purchase

P2P by, with and through other members of the conspiracy.

However, the substance the co-conspirators purchased was, in

fact, PIP, a non-controlled substance.

In violation of Title 21, United States Code, Section 846.

COUNT TWO

THE GRAND JURY FURTHER CHARGES:

That on or about July 31, 1981, at Philadelphia, in the Eastern

District of Pennsylvania

9a

Indictment

PATRICK DIXON

knowingly and intentionally did unlawfully attempt to possess

with the intent to distribute approximately 28 gallons of

phenyl-2-propanone (P2P), a Schedule II non-narcotic drug

controlled substance, in violation of Title 21, United States Code,

Section 841(a)(1).

In violation of Title 21, United States Code, Section 846.