Petition — Nabors v. United States

T

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

DEWEY T. NABORS, JR.,

Petitioner,

Wa

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

GORDON DEAN BOOTH, JR.

Of Counsel: Counsel of Record

Marc K. RITZMANN 3100 Equitable Building

PAUL JAMES CONNELL 100 Peachtree Street

KILPATRICK & Copy Atlanta, Georgia 30043

3100 Equitable Building (404) 572-6500

100 Peachtree Street Counsel for Petitioner

Atlanta, Georgia 30043

(404) 572-6500

eel

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

1. Whether the Court of Appeals erred in ruling that

evidence of Petitioner’s pre-arrest silence was properly

admitted to prove guilt as part of the government’s case-

in-chief, even though Petitioner had announced his inten-

tion not to testify in his own behalf (and in fact never

testified), and despite Petitioner’s contemporaneous objec-

tion that introduction of such evidence violated the self-

incrimination and due process clauses of the Fifth

Amendment to the United States Constitution, U.S. Const.

amend. V?

2. Whether the Court of Appeals erred in ruling that

evidence of Petitioner’s alleged prior similar activities

was admissible to prove intent, even though Petitioner

never took the stand to testify in his own behalf or other-

wise affirmatively placed the question of his criminal in-

tent in issue?

3. Whether the Court of Appeals erred in ruling that

the government was not required, in response to Peti-

tioner’s motion under 18 U.S.C. § 3504 (1976), to affirm

or deny the use of illegal electronic surveillance in its

investigations leading to the prosecution of this case?

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................................... i

See OF AUTHORITING tt ....... iv

A 1

JURISDICTIONAL GROUNDS IN THIS COURT...... 2

CONSTITUTIONAL AND STATUTORY PROVI-

aa pesesseeneeenectonis 2

STATEMENT OF THE CASE oo... .0.ccccscc00.0..- 8

REASONS FOR GRANTING THE WRIT. ........... =. 10

(A) The Admissibility of Evidence of Petition-

er’s Pre-Arrest Silence To Prove Guilt, as Part of

the Government’s Case-in-Chief in a Trial in

Which Petitioner Did Not Testify, Presents an

Important Question of Constitutional Law Which

Has Not Been, But Should Be, Settled By the Su-

ESS ODED ER 10

(B) The Court of Appeals’ Ruling with Re

spect to the Admissibility of Evidence of Petition-

er’s Alleged Prior Similar Activities Is in Conflict

With the Decisions of Other Federal Courts of Ap-

peals and Presents Important Questions of Consti-

NE ESO 18

(C) The Court of Appeals’ Ruling Affirming the

Denial of Petitioner’s Motion Pursuant To 18

U.S.C. § 3504 (1976) Is in Conflict With the Deci-

sions of Other Federal Courts of Appeals and Pre-

sents an Important — of Federal tases

CRE 23

EEE SR 28

GES ce a nen Al

iv

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Charles, 447 U.S. 404 (1980) ............... 18

Christoffel v. United States, 338 U.S. 84 (1949)... 23

Doyle v. Ohio, 426 U.S. 610 (1976) .........0....2.-..2-- 11

Duncan v. Louisiana, 391 U.S. 145 (1968) ............. 22

Fletcher v. Weir, 102 S.Ct. 1809 (1982) .................. 18

Gelbard v. United States, 408 U.S. 41 (1972)........ 25, 26

Grosso v. United States, 390 U.S. 62 (1968)........ 16

Harris v. New York, 401 U.S. 222 (1971).............. 17

In re Baker, 680 F.2d 721 (11th Cir. 1982) ............. 27

In re Evans, 452 F.2d 1239 (D.C, Cir. 1971), cert.

denied, 408 U.S. 980 (1972) ............00.......-scceceeeeee 26

In re Winship, 397 U.S. 358 (1970) .................--....-- 23

Jenkins v. Anderson, 447 U.S, 231 (1980) .....11-14, 17-18

Lefkowitz v. Turley, 414 U.S. 70 (1978) ................ 15

Marchetti v. United States, 390 U.S. 39 (1968)...... 16

Nardone v. United States, 308 U.S. 338 (1939)........ 24

People v. Grieco, 94 Misc.2d 1048, 406 N.Y.S.2d

426, aff'd, 98 Misc.2d 310, 413 N.Y.S.2d 821

III cecenwsiesitetescarcicirsnemstysitieadictte he elameeeat ease i sce ahak ie celal 26

Raffel v. United States, 271 U.S. 494 (1926) .......... 12

Roberts v. United States, 445 U.S. 552 (1980)........ 16

Rogers v. United States, 340 U.S. 367 (1951)........ 16

Screws v. United States, 325 U.S. 91 (1945)........ 23

United States v. Allied Stevedoring Corp., 165 F.

Supp. 440 (S.D.N.Y. 1958) 25

United States v. Beechum, 582 F.2d 898 (5th Cir.

1978), cert. denied, 440 U.S. 920 (1979).............. 19

United States v. Bryant, 439 F.2d 642 (D.C. Cir.),

on remand, 331 F. Supp. 927, aff’d, 448 F.2d

1182 (D.C. Cir. 1971) ....... 6

United States v. Buck, 548 F.2d 871 (9th Cir.),

cert. denied, 434 U.S. 890 (1977) 5

United States v. Caro, 6837 F.2d 869 (2nd Cir.

I chien ieinsietiesccctiainein 14

United States v. Casanova, 213 F. Supp. 654

(S.D.N.Y. 1963) nd "

United States v. Coadcs, 549 F.2d 1303 (9th Cir.

1977) n 22

Vv

TABLE OF AUTHORITIES—Continued

Page

United States v. Fearns, 501 F.2d 486 (7th Cir.

RASTER neon sere RTE MLR HN SERINE 21

United States v. Fierson, 419 F.2d 1020 (7th Cir

| SRT r EL WEN rad Pa enti aN he ee 21

United States v. Hale, 422 U.S. 171 (1975)............. 11

United States v. Hamilton, 684 F.2d 380 (6th

Cir.), cert. denied, 103 S.Ct. 312 (1982) ............ 21

United States v. Hatrak, 417 F. Supp. 316 (D.NWJ.

1976), aff'd, 564 F.2d 90 (3rd Cir. 1977), cert.

denied, 485 U.S. 906 (1978) .....................cccscsssseeese 23

United States v. James, 609 F.2d 36 (2d Cir.),

cert, denied, 445 U.S. 905 (1980) .............2.......... 26

United States v. Johnson, 697 F.2d 735 (6th Cir.

i Ae re a 21

United States v. Kopituk, 690 F.2d 1289 (11th Cir.

1982), cert. denied, 103 S.Ct. 2089 (1983) ........... 21

United States v. Kovic, 684 F.2d 512 (7th Cir.),

cert. denied, 103 S.Ct. 304 (1982) ...........0....2-0.02--- 21

United States v. Lewis, 651 F.2d 1163 (6th Cir.

| ARN oe EEN NS A 15

United States v. Pardo-Bolland, 229 F. Supp. 473

th RRR Rae ee Te RIEY BEER LN Mane 2 24-25

United States v. Powell, 587 F.2d 443 (9th Cir.

Re PC STN eR rt onl =o 19, 22

United States v. Ring, 513 F.2d 1001 (6th Cir.

1975) .. 21

United States ' v. . Roberts, “619. F.2d 379 “(5th ‘Cir.

SR nh re a eee 9, 19-21

United States v. Robinson, 523 F. Supp. 1006

(E.D.N.Y. 1981), aff'd, 685 F.2d 427 (2nd:Cir.

bia ...8, 12, 15

United States v. Rubin, 559 F.2d ‘975 (5th ‘Cir.

1977), vacated on other grounds, 439 U.S. 810

(1978) .. 27

United States 1 v. . Sprengel, “103 F.2d 876 “(3rd Cir.

ARES a E 14

United States v. Tanner, 279 F. Supp. 457 (N.D

i. Ree ees 25

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Tucker, 526 F.2d 279 (5th Cir.),

cert. denied, 425 U.S. 958 (1976) .................----.0- 27

United States v. Vielguth, 502 F.2d 1257 (9th Cir.

RAEI ASN Ne ee SMR are 26

United States v. Williams, 580 F.2d 578 (D.C.

Cir.), cert. denied, 439 U.S. 832 (1978)................ 26

Constitutional Provisions:

ee Oe a cle emeleetaanausuenaniae 10, 16

a, Se Dene eas Ber Som 22

Statutes:

Omnibus Crime Control Act and Safe Streets Act,

18 U.S.C. §§ 2510-2520 (1976) ...................-........ 25

18 U.S.C. $2618 (10) (a) (1976) .................2.--2.0-- 27

FR eee 16

as Tea) | a) | ees 4, 5, 8, 9, 23-28

Controlled Substances Act, 21 U.S.C. §§ 841, 846

SI cikcicoindsiducsies Satntintenssd-dcbaoantncindisiadaguabanioaismmaaicnnantas 1,4

Controlled Substances Import and Export Act, 21

U.S.C. $§ 962, 960, 968 (1976) .................-...-ccceec-e 1,4

, Bis Re. si i, ae 2

Legislative History:

Hearings on S. 30 Before Subcomm. No. 5 of the

House Comm. on the Judiciary, 91st Cong., 2d

SI ER, <2 ‘CIID ne cimecevetsnenctbeisibenscnadtasieiadilcsnecindig ay

Other Authorities:

Bs Tain es GD ocecncceennsinscnticsocinnsiiinnseeiciniiaia 7,9, 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. -

DEWEY T. NABORS, JR.,

- Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioner, Dewey T. Nabors, Jr., hereby makes ap-

plication to this Court for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Eleventh Circuit affirming Petitioner’s conviction be-

fore the United States District Court for the Middle Dis-

trict of Georgia on charges alleging conspiracy and sub-

stantive violations of the Controlled Substances Act, 21

U.S.C. §§ 841, 846 (1976), and the Controlled Substances

Import and Export Act, 21 U.S.C. §§ 952, 960, 963

(1976).

OPINIONS BELOW

The decision of the Court of Appeals is reported at

707 F.2d 1294 (11th Cir. 1983) and appears at pages

Al-16 of the Appendix. The order of the Court of Ap-

peals, denying Petitioner’s request for reconsideration

and suggestion for rehearing en banc, is unpublished and

appears at page Al7 of the Appendix.

2

The transcript of Petitioner’s jury trial before the

United States District Court for the Middle District of

Georgia is unpublished. Excerpts from the trial tran-

script which Petitioner believes to be material to this

Court’s consideration of the questions presented, appear

at pages A43-49 of the Appendix.

JURISDICTIONAL GROUNDS IN THIS COURT

The decision of the Court of Appeals was entered June

23, 1983. On July 18, 1983, Petitioner timely filed a

request for reconsideration and suggestion for rehearing

en banc. Petitioner’s request was denied by order of the

Court uf Appeals, entered August 15, 1983. The jurisdic-

tion of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1) (1976).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. V:

No person shall be . . . compelled in any criminal

case to be a witness,against himself, nor be deprived

of life, liberty, or property, without due process of

law.

U.S. Const. amend. VI:

In all criminal prosecutions, the accuced shall en-

joy the right to a speedy and public trial, by an im-

partial jury of the State and district wherein the

crime shall have been committed... .

18 U.S.C. § 3481 (1976) :

In trial of all persons charged with the commis-

sion of offenses against the United States and at all

proceedings in courts marshall and courts of inquiry

in any State, District, Possession or Territory, the

person charged shall, at his own request, be a com-

petent witness. His failure to make such request

shall not create any presumption against him.

18 U.S.C. § 3504 (1976) :

(a) In any trial, hearing, or other proceeding in

or before any court, grand jury, department, officer,

agency, regulatory body, or other authority of the

United States—

(1) upon a claim by a party aggrieved that

evidence is inadmissible because it is the pri-

mary product of an unlawful act or because it

was obtained by the exploitation of an unlawful

act, the opponent of the claim shall affirm or

deny the occurrence of the alleged unlawful act;

(b) As used in this section “unlawful act” means

any act [sic] the use of any electronic, mechanical,

or other device (as defined in section 2510(5) of this

title) in violation of the Constitution or laws of the

United States or any regulation or standard promul-

gated pursuant thereto.

Fed. R. Evid. 404(b):

(b) ‘Other crimes, wrongs, or acts. Evidence of

other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show

that he acted in conformity therewith. It may, how-

ever, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or ac-

cident.

STATEMENT OF THE CASE

Petitioner’s conviction in this case was secured through

a combination of trial tactics and court rulings which

clearly violated his federal statutory and constitutional

rights. While only a full briefing and plenary considera- .

ton of the case can reveal completely the degree to which

Petitioner’s fundamental rights have been abridged, an

outline of the proceedings and decisions below should give

the Court some idea of the unfair treatment to which

Petitioner has been subjected.

4

On December 3, 1981, an indictment was returned to

the United States District Court for the Middle District

of Georgia charging Petitioner, in six counts, with con-

spiring to import marijuana and methaqualone (Count

I), conspiring to possess marijuana and methaqualone

with intent to distribute (Count II), importing mari-

‘juana and methaqualone (Counts III and IV) and pos-

session of marijuana and methaqualone (Counts V and

VI) in violation of the Controlled Substances Act, 21

U.S.C. §§ 841, 846 (1976), and the Controlled Substances

Import and Export Act, 21 U.S.C. §§ 952, 960, 963

(1976) (A50-52). On February 17, 1982, Petitioner

entered a plea of not guilty as to all charges alleged in

the indictment.

Prior to trial, Petitioner moved, pursuant to 18 U.S.C.

§ 3504 (1976), to require the government to affirm or

deny the use of illegal electronic surveillance in its in-

vestigations leading to the prosecution of this case ( A34-

36). In support of his motion, Petitioner submitted two

affidavits. The first affidavit, by Petitioner’s counsel,

stated that an analysis of government documents and

other public records revealed that during the period rele-

vant to this case,’ the National Security Agency sys-

tematically conducted covert electronic surveillance of

virtually all international telephone calls originating or

terminating in the United States and that information

obtained from these monitoring activities had been dis-

seminated to law enforcement agencies (A37-40). The

second affidavit, by Petitioner, stated that he had been a

party to a number of international telephone calls relat-

ing to the subject matter of the indictment and that,

based upon the National Security Agency’s pervasive sur-

veillance activities, Petitioner believed that some or all

1 Although the indictment in this case alleged the existence of a

conspiracy during the period January 1, 1980 thrvugh April 13,

1980, at trial the government was permitted to introduce evi-

dence that, four years earlier, Petitioner and the government's

a

5

of his international telephone calls had been intercepted

by agencies of the United States government (A41-42).

Despite Petitioner’s affirmative assertion of illegal sur-

veillance, and in apparent disregard of the factual basis

offered in support of his claim, the district court denied

Petitioner’s motion on the grounds that his assertion of

unlawful surveillance was insufficient to constitute a

“claim” within the meaning of 18 U.S.C. § 3504 (1976)

(A20-33) .

At trial, Petitioner declined to testify and produced

no witnesses, limiting his evidence to the introduction of

three documentary exhibits intended to impeach two of

the government’s witnesses. In short, Petitioner elected to

exercise his Fifth Amendment right to remain silent and

put the government to the test of fully proving its case

against him. In an apparent recognition of the weak-

ness of its direct evidence of Petitioner’s guilt, however,

the government chose to meet its burden by commenting

on Petitioner’s exercise of his privilege against self-

incrimination and by introducing evidence of alleged

“prior similar activities,” the probative value of which

was substantially outweighed by its prejudicial effect.

The government’s case consisted largely of the testi-

mony of Michael Warner, an alleged “accomplice” and

2 The district court also found Petitioner’s motion to be untimely.

Although the Court of Appeals never reached this issue, it should

be noted that Petitioner’s motion was filed nearly two weeks before

the scheduled trial date. Moreover, any delay in the trial of the

case as a result of granting Petitioner's motion could have been

avoided by proceeding to trial, yet still requiring the government to

search its files for evidence of illeral surveillance. If such evi-

dence was discovered, it could have been addressed after trial, as

defense counsel suggested (A33). See United States v. Buck, 548

F.2d 871, 874 (9th Cir.), cert. denied, 484 U.S. 890 (1977) (approv-

ing a similar procedure). In any event, the district court’s con-

clusion with respect to the timeliness of Petitioner’s motion was

premised on the assumption that motions under 18 U.S.C. § 8504

(1976) must be filed prior to trial. A plain reading of the statute,

however, suggests that such an assumption is erroneous, especially

in light of the fact that any witness may make a claim of illegal

surveillance under section 3504.

6

“co-conspirator” of Petitioner in the offenses charged in

the indictment. Warner, a twice-convicted felon and ad-

mitted perjurer, testified that he had been hired by Pe-

titioner to fly to Colombia, pick up certain quantities of

marijuana and methaqualone, and bring them back to

Georgia. Warner further testified that on the morning of

April 12, 1980, he departed for Colombia in a single-

engine Cessna aircraft leased by Petitioner and arrived

shortly after 6:00 p.m. that same day. After loading the

plane with alleged controlled substances, Warner began

his return flight to the United States. When Warner

arrived at his intended landing site, however, it was ob-

scured by fog. Following a search for alternative landing

sites, Warner located a “crop dusting strip’ in Dooly

County, Georgia, near the town of Unadilla. After land-

ing the plane, Warner immediately set it on fire, inad-

vertently causing local law enforcement officers to arrive

at the scene. The officers salvaged some of the plane’s

contents, which they suspected to be marijuana and

methaqualone.* Warner was arrested shortly thereafter

and later convicted in state court on drug charges.*

® More than four months after the return of the indictment in

this case, and two months after Petitioner had requested an oppor-

tunity to examine and test the materials seized from the aircraft,

the alleged contraband was destroyed by the government. Never-

theless, the district court, over Petitioner’s objections, allowed

the government to introduce testimony concerning its testing and

identification of the seized materials. Although not an issue dis-

cussed in detail in this petition, Petitioner maintains that the

government's destruction of this critical evidence was in negligent

disregard of its duty to preserve material evidence and that

testimony concerning its testing and identification of the alleged

contraband should have been excluded. See United States v. Bryant,

439 F.2d 642, 651 (D.C. Cir.), on remand, 331 F.Supp. 927, aff'd,

448 F.2d 1182 (D.C. Cir. 1971).

* Following Warner’s sentencing by the Dooly County Superior

Court to imprisonment for a term of twenty-two years and his

subsequent agreement with law enforcement authorities to provide

testimony against Petitioner, a motion was filed on Warner’s be-

half to reduce his prison sentence. That motion, although pending

7

In addition to Warner’s direct testimony concerning

Petitioner’s involvement in the drug trafficking activities

forming the basis of the indictment, the government was

allowed to introduce, over objection and as part of its

case-in-chief, testimony by Warner that he and Peti-

tioner had engaged in similar drug smuggling operations

four years earlier. Although the district court acknowl-

edged that evidence of prior acts is ordinarily not ad-

missible against a criminal defendant, it allowed this

testimony under the “intent” exception to Rule 404(b)

of the Federal Rules of Evidence (A43-46). In this

respect, it is important to note that the district court

ruled on the admissibility of “prior acts” evidence before

the government had introduced any evidence in its direct

case and without knowing the nature of Petitioner’s de-

fense. Moreover, this clearly prejudicial evidence was ad-

mitted to prove intent, even though Petitioner never took

the stand to testify in his own behalf or otherwise affirm-

atively placed the question of his criminal intent in issue.

Warner was the only witness who gave direct testi-

mony concerning Petitioner’s involvement in the drug

trafficking activities charged in the indictment. Virtually

all of the government’s other evidence was intended to

corroborate some circumstantial aspect of Warner’s testi-

moi or to connect Petitioner with the aircraft allegedly

involved in the incidents resulting in the charges in this

ease. The only exception was evidence concerning Peti-

tioner’s pre-arrest silence. In this regard, the district

court permitted the government to introduce, as part of

its case-in-chief, evidence that Petitioner had remained

silent in response to an insurance company’s demand that

he provide a statement under oath as to his involvement

in the use and loss of the aircraft which the government

contended had been utilized by Warner to transport the

controlled substances referred to in the indictment. Evi-

for nearly one and one-half years without opposition from the

State, had not been ruled upon prior to Warner’s testimony at

Petitioner’s trial.

8

dence of Petitioner’s silence was admitted despite the

fact that Petitioner had announced his intention not to

take the stand in his own behalf (and in fact never tes-

tified), and over Petitioner’s timely objection that the

introduction of such evidence violated his rights under

the due process and self-incrimination clauses of the

Fifth Amendment to the United States Constitution (A47-

49).

On June 9, 1982, Petitioner was found guilty by jury

verdict on all counts of the indictment. On June 28,

1982, the district court sentenced Petitioner to a total

of fifteen years imprisonment, followed by a five year

special parole term.” On that same day, Petitioner filed

a Notice of Appeal to the United States Court of Appeals

for the Eleventh Circuit (A19).

On appeal, Petitioner challenged a number of the dis-

trict court’s rulings, including its decisions: (1) allow-

ing evidence, as part of the government’s case-in-chief,

of Petitioner’s pre-arrest silence; (2) admitting evidence

of alleged prior similar activities on the issue of Peti-

tioner’s criminal intent; and (3) denying Petitioner’s

motion, under 18 U.S.C. § 3504 (1976), to require the

government to affirm or deny the use of illegal electronic

surveillance.

On June 23, 1983, the Court of Appeals »ffirmed the

judgment of the district court in all respects. As to the

admissibility of Petitioner’s pre-arrest silence, the court

acknowledged that the issue presented a difficult question

of constitutional law and that the only case allowing

prosecutorial comment on a defendant’s pre-arrest silence

as part of the government’s direct case, United States v.

Robinson, 523 F. Supp. 1006 (E.D.N.Y. 1981), aff'd, 682

F.2d 427 (2d Cir. 1982), was readily distinguishable.

5 The formal sentence was five years on Count I; five years on

Count II, consecutive to Count I; and five years followed by a

special parole term of five years on each of Counts III-VI, the

sentences on Counts III-VI being concurrent with each other, but

consecutive to the sentence imposed with respect to Count II.

Nevertheless, the Court of Appeals held that evidence

of Petitioner’s pre-arrest silence was properly admitted

to prove guilt as part of the government’s case-in-chief

(A9-12).°

The Court of Appeals also upheld the admission of

“prior acts” evidence under the “intent” exception to Fed.

R. Evid. 404(b), concluding (1) that Petitioner had some-

how placed his intent in issue through cross-examination

of government witnesses designed to negate evidence of

Petitioner’s participation in the conspiracy charged, and

(2) that, in any event, under United States v. Roberts,

619 F.2d 379 (5th Cir. 1980), evidence regarding prior

acts is automatically admissible in every conspiracy case,

“unless the defendant has affirmatively removed the issue

of intent” (A13).

Finally, the Court of Appeals affirmed the district

court’s denial of Petitioner’s motion to require the gov-

ernment to affirm or deny the use of illegal electronic

surveillance under 18 U.S.C. § 3504 (1976), on the

grounds that Petitioner’s assertion of illegal surveillance

was insufficient to constitute a “claim” within the mean-

ing of section 3504, because it did not contain a “posi-

tive statement that unlawful surveillance did in fact take

*The Court of Appeals based its holding on four grounds.

First, the court concluded that since the prosecution could have

introduced statements made by Petitioner in response to the

insurance company’s demand, and since Petitioner had not asserted

his privilege against self-incrimination at the time of his initial

silence, the prosecution should have been able to use Petitiorer’s

silence against him. Second, the Court of Appeals viewed Peti-

tioner’s failure to respond to the insurance company’s demand as

more nearly action than silence. Third, as the result of an apparent

failure to balance the government’s need for the evidence against

the Petitioner’s privilege against self-incrimination, the court

found that Petitioner had offered no persuasive justification for

reversing the district court on this point. Finally, relying largely

on other improperly admitted evidence concerning Petitioner’s

alleged prior similar activities, the court held that even if the

government’s use of Petitioner’s pre-arrest silence was error, it

was harmless error (A9-12).

10

place,” or demonstrate a causal link between such sur-

veillance and his prosecution (A15-16).

On July 13, 1983, Petitioner filed a request for recon-

sideration and suggestion for rehearing en banc. Peti-

tioner’s request was denied by order of the Court of Ap-

peals, entered August 15, 1983 (A17-18). Petitioner

now seeks a writ of certiorari for review of the decision

below.

REASONS FOR GRANTING THE WRIT

A. The Admissibility of Evidence of Petitioner's Pre-

Arrest Silence To Prove Guilt, as Part of the Govern-

ment’s Case-in-Chief in a Trial in Which Petitioner

Did Not Testify, Presents an Important Question of

Constitutional Law Which Has Not Been, But Should

Be, Settled By the Supreme Court.

As previously noted, the district court permitted the

government to introduce, as part of its case-in-chief, evi-

dence that Petitioner had remained silent in response to

an insurance company’s demand for a statement under

oath as to his involvement in the use and loss of an air-

craft which the prosecution contended was involved in

the incidents resulting in the charges in this case. Evi-

dence of Petitioner’s silence was admitted despite the fact

that Petitioner had announced his intention not to take

the stand in his own behalf (and in fact never testified),

and over Petitioner’s timely objection that the introduction

of such evidence violated his rights under the due process

and self-incrimination clauses of the Fifth Amendment.’

On appeal, the Eleventh Circuit Court of Appeals up-

held the trial court’s ruling. In reaching this result,

™The Fifth Amendment, U.S. Const. amend. V, provides in

pertinent part:

No person shall be . . . compelled in any criminal case to be

a witness against himself, nor be deprived of life, liberty, or

property, without due process of law.

11

however, the court explicitly recognized that the issue

whether evidence of Petitioner’s pre-arrest silence should

have been admitted at trial presented a difficult question

of constitutional law (A7). In this respect, the court

correctly noted that the leading Supreme Court deci-

sions on the prosecution’s use of a defendant’s silence

are not directly on point. For example, in Doyle v. Ohio,

426 U.S. 610 (1976), this Court held that the govern-

ment cannot, consistent with due process, comment at

trial upon a defendant’s pre-trial silence after receiv-

ing Miranda warnings, even for impeachment purposes.

See also United States v. Hale, 422 U.S. 171 (1975)

(reaching same result based on the Supreme Court’s

supervisory powers over lower federal courts). In Jen-

kins v. Anderson, 447 U.S. 231 (1980), however, this

Court held that evidence of a defendant’s silence prior to

his arrest is admissible to impeach the defendant’s testi-

mony at trial.

The circumstances surrounding the introduction of evi-

dence of Petitioner’s silence in this case differ in a

critical respect from the circurnstances involved in Jen-

kins and other cases concerning the use of a defendant’s

pre-arrest silence. In this case the government intro-

duced evidence of Petitioner’s silence in its direct case in

a trial in which the Petitioner did not testify. As such,

the question presented below was whether and to what

extent pre-arrest silence is protected by the Fifth Amend-

ment in a case where the defendant chooses not to testify.

This is an issue which has not been, but should now be,

settled by the Supreme Court.

In Jenkins, this Court specifically reserved decision on

this precise issue, stating:

In this case, the petitioner remained silent before ar-

rest, but chose to testify at his trial. Our decision

today does not consider whether or under what cir-

cumstances prearrest silence may be protected by the

Fifth Amendment. We simply do not reach that

12

issue because the rule of Raffel clearly permits im-

peachment even if the prearrest silence were held to

be an invocation of the Fifth Amendment right to

remain silent."

447 U.S. at 236 n.2. The concurring and dissenting opin-

ions in Jenkins, however, did address the issue—reaching

contrary conclusions. In his concurring opinion in Jen-

kins, Justice Stevens, joined by Justice Stewart, sug-

gested that an individual’s right not to incriminate him-

self exists only when he is under “official compulsion”

to speak and he has affirmatively asserted his constitu-

onal right to remain silent. Jd. at 243-44. Under this

approach, the prosecution could raise prior silence even

if the defendant chose not to testify in his own behalf,

as long as the evidence was relevant and the defendant’s

pre-arrest silence was not in response to an official gov-

ernmental inquiry.’ Jd. at 244 n.7.

SIn Raffel v. United States, 271 U.S. 494 (1926), the defendant

was indicted and twice tried for conspiracy to violate the National

Prohibition Act. At his first trial, the defendant declined to take

the witness stand to challenge inculpatory statements by a govern-

ment witness. Following a mistrial, the defendant was tried again

and this time elected to testify in his own behalf to deny the testi-

mony of the same government witness. During cross-examination,

the prosecutor commented upon the defendant’s silence at his

earlier trial, inferring that his present testimony was a recent

fabrication. Jd. at 495. This Court held that prosecutorial com-

ment on the defendant's prior, constitutionally protected silence

did not violate his Fifth Amendment privilege against self-

incrimination, reasoning that “(t]he immunity from giving testi-

mony is one which the defendant may waive by offering himself as

a witness.” /d. at 496-97. In Jenkins this Court applied the rationale

in Raffel to hold that a defendant’s exercise of his Fifth Amend-

ment right to remain silent is not impermissibly burdened by the

use of his pre-arrest silence for impeachment purposes. 447 U.S. at

235.

* Only one lower federal court has adopted the approach sug-

gested by Justice Stevens. In United States v. Robinson, 523

F.Supp. 1006 (E.D.N.Y. 1981), aff'd, 685 F.2d 427 (2d Cir. 1982),

the court held that the prosecution did not infringe the defendant's

13

In contrast, Justice Marshall, in his dissenting opinion,

which was joined by Justice Brennan, found Justice

Stevens’ view of the Fifth Amendment “incomprehensible” :

Apparently, under [Justice Stevens’) view, a per-

son’s right not to incriminate himself exists only if

the government has already attempted to compel him

to do so. (Citations omitted). If no officials have

tried to get the person to speak, he evidently has a

duty to incriminate himself, because the reporting of

crime is a civic duty and the Fifth Amendment is

not applicable since the decision to speak or remain

silent is, at that time, “voluntary.” (Citations

omitted).

But the prohibition against compelled self-incrimi-

nation is another way of expressing the right not to

incriminate oneself. (Citations omitted). After all,

the only means of compelling a person to incriminate

himself is to penalize him if he does not.... [T]he

Constitution . . . prohibits the government from bur-

dening the right not to incriminate oneself by penal-

izing silence. In the present case the violation of the

Fifth Amendment occurred not when the defendant

remained silent, but when that silence was later used

against him at his criminal trial.

Id. at 250 n.4. In addition, Justice Marshall was of

the opinion that pre-arrest silence is so ambiguous and °

lacking in probative value that its use at trial, even for

Fifth Amendment privilege by raising, in its case-in-chief, the

defendant’s silence in the face of an implicit accusation by a cashier

that he had handed her counterfeit money. As the Court of Appeals

below recognized, however, the circumstances involved in Robinson

are readily distinguishable from those in the present case. Robinson

involved silence combined with action. When the cashier handed

the tendered bills back to the defendant and asked for “real

money,” the defendant without saying anything, handed the

cashier genuine money. Moreover, Robinson differs from the case

at bar in that here Petitioner's silence occurred independent of

the commission of the alleged crime.

14

impeachment purposes, is fundamentally unfair and de-

prives the accused of due process of law. Jd. at 246-49.

This Court’s specific reservation of decision on the

question whether, and under what circumstances, pre-

arrest silence may be protected by the Fifth Amend-

ment where the defendant does not testify at trial,

couj)!e. with conflicting pronouncements by the individual

Justices, has left this important issue unsettled and in

need of clarification. Under these circumstances, it is not

surprising that in addressing this issue lower federal

courts have reached conflicting conclusions. For ex-

ample, the decision of the Court of Appeals in the present

case apears to be in direct conflict with the Third Cir-

cuit’s opinion in United States v. Sprengel, 103 F.2d

876 (3d Cir. 1939). In that case a postal inspector

mailed questionnaires to several individuals who were

ultimately prosecuted for participating in a mail fraud

conspiracy. At trial, the inspector was allowed to testify

that the defendants had failed to respond to the ques-

tionnaires. The Third Circuit held that the admission

of this testimony “constituted prejudicial error,” stating:

The law is well settled that a defendant cannot be

compelled to testify against himself and that a

prosecuting attorney may not comment upon his fail-

ure to so testify. The question presented by this

aspect of the case at bar is closely analogous. The

appellants were not compelled by law to respond to

the questionnaires of the Post Office Department and

the fact that they did not do so does not present

evidence that they acted in bad faith or were not

acting in good faith. Boyd v. United States, 116

U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; McKnight v.

United States, 6 Cir., 115 F. 972.

Id, at 883. Similarly, in United States v. Caro, 637

F.2d 869 (2d Cir. 1981), a case decided after Jenkins,

the Second Circuit expressed doubts as to the consti-

tutionality of the use of pre-arrest silence by the govern-

ment for purposes other than impeachment:

15

Whatever the future impact of Jenkins may be,

we have found no decision permitting the use of

silence, even the silence of a suspect who has been

given no Miranda warnings and is entitled to none,

as part of the Government’s direct case... . [Wle

are not confident that Jenkins permits even evidence

that a suspect remained silent before he was ar-

rested or taken into custody to be used in the Gov-

ernment’s case in chief. We will thus assume, with-

out deciding, that even if we were to hold that [the

defendant] was not in custody [at the time of the

silence], this would not necessarily carry the day for

the prosecution in light of the fact that all of the

cases permitting proof of silence, including Jenkins,

have involved impeachment or rebuttal of the de-

fendant’s testimony.

Id. at 876; see also United States v. Lewis, 651 F.2d

1163 (6th Cir. 1981) (quoting the above language from

Caro with approval, and excluding evidence of pre-arrest

silence on due process grounds since the defendant had

been given Mirandu warnings). But see United States

v. Robinson, 523 F.Supp. 1006 (E.D.N.Y. 1981), aff'd,

685 F.2d 427 (2d Cir. 1982) (permitting evidence of

pre-arrest silence even though defendant did not testify).

In the instant case, Petitioner has consistently main-

tained that his decision to remain silent, commencing

with his refusal to respond to the insurance company’s

demand for a statement under oath,’ and continuing

1° The insurance company’s demand sought information relating

directly to the incidents which eventually resulted in the indictment

in this case. Petitioner could reasonably have supposed that any

information provided to the insurance company would eventually

have been made available to law enforcement authorities, thereby

significantly enhancing the likelihood of criminal prosecution. More-

over, Petitioner could reasonably have assumed that the demand

was made in anticipation of civil litigation. See Lefkowitz v. Turley,

414 U.S. 70, 77 (1973) (holding Fifth Amendment privilege is

available in civil cases). Under these circumstances, it can scarcely

be denied that the insurance company’s demand posed a “real and

16

through trial with his decision not to testify, was an in-

vocation of his right to remain silent protected by the

Fifth Ameidment.'' U.S. Const. amend. V; see also 18

U.S.C. § 3481 (1976). Petitioner asserted his privilege

against self-incrimination at the earliest available op-

portunity by objecting to the admission of evidence of

his pre-arrest silence, and announcing his intention not

to take the stand, prior to the government’s presentation

of its direct case.'* Nevertheless, the district court per-

mitted the government to introduce evidence of Peti-

tioner’s silence to prove guilt as part of the government’s

appreciable” and not merely “imaginary and unsubstantial” hazard

of self-incrimination. See Marchetti v. United States, 390 U.S. 39

(1968) ; Rogers v. United States, 340 U.S. 367 (1951).

The Court of Appeals’ attempt to characterize Petitioner’s

silence as “action” is unsupported in fact or law. Petitioner’s fail-

ure to respond to the insurance company’s demand to file a claim

for insurance proceeds cannot be distinguished on any principled

basis from a defendant’s failure to file informational tax returns.

See, e.g., Grosso v. United States, 390 U.S. 62 (1968); Marchetti v.

United States, 390 U.S. 39 (1968). In either case, it reasonably can

be supposed that the information requested may eventually be used

in civil or criminal litigation. As such, the demand for such infor-

mation is “not significantly different from a demand that [the de-

fendant] provide oral testimony.” Marchetti v. United States, 390

U.S. at 57.

12 In this respect, the Court of Appeals’ finding that Petitioner

“never asserted the privilege” was clearly erroneous. Relying on an

apparent misreading of Roberts v. United States, 445 U.S. 552

(1980), the Court of Appeals concluded that since Petitioner had

not claimed the privilege at the time of his pre-arrest silence, he

could not claim it at trial (A9-10). What is required by Roberts,

however, is not that the privilege be claimed at the time of the de-

fendant’s silence, but rather that it be invoked “in a timely

fashion” before the “tribunal which must pass upon it.” 445 U.S.

at 559, 560. In this case, Petitioner clearly satisfied this require-

ment by asserting his privilege against self-incrimination before

the trial court prior to the government’s presentation of its evi-

dence of Petitioner’s pre-arrest silence.

17

case-in-chief, in clear violation of his Fifth Amendment

rights."

In allowing the introduction of evidence of Petitioner’s

pre-arrest silence, the lower court failed to balance the

government’s need for such evidence against Petitioner’s

constitutionally protected right against self-incrimination.

As this Court stated in Jenkins:

In determining whether a constitutional right has

been burdened impermissibly, it also is appropriate

to consider the legitimacy of the challenged govern-

mental practice. (Citations omitted). Attempted

impeachment on cross-examination of a defendant,

the practice at issue here, may enhance the reli-

ability of the criminal process. Use of such impeach-

ment on cross-examination allows prosecutors to test

the credibility of witnesses by asking them to ex-

plain prior inconsistent statements and acts. A

defendant may decide not to take the witness stand

because of the ris of cross-examination. But this

is a choice of litigation tactics. Once a defendant

decides to testify, “[{t]he interests of the other party

and regard for the function of courts of justice to

ascertain the truth become relevant, and prevail

in the balance of considerations determining the

scope and limits of the privilege against self-in-

crimination.” (Citations omitted).

447 U.S. at 238." Unlike the defendant in Jenkins, in

this case Petitioner did not take the witness stand to

18 That Petitioner’s silence was in response to an inquiry by a

private party is not controlling inasmuch as the violation of Peti-

tioner’s Fifth Amendment rights occurred not when he remained

silent, but when his silence was later used against him by the gov-

ernment as part of its direct case. See Jenkins v. Anderson, 447

U.S. at 250 n.4 (Marshall, J. dissenting). Prosecutorial comment

upon a non-testifying defendant’s pre-arrest failure to come for-

ward with information pertaining to the charges against him is

just the type of retributive sanction the Fifth Amendment was

designed to prohibit.

14 The circumstances in Jenkins were similar to those in Harris

v. New York, 401 U.S. 222 (1971). In that case, the Court held

18

testify in his own behalf and evidence of his prior

silence was not necessary for impeachment purposes.

Hence, the considerations justifying the admission of pre-

arrest silence in Jenkins—the prevention of perjury and

the enhancement of the truth-finding function of the

court—were not applicable here. It is respectfully sub-

mitted that, in the absence of similar considerations, the

admission of evidence of Petitioner’s pre-arrest silence

in the instant case impermissibly burdened the exercise

of his constitutional privilege against self-incrimination

and that, upon full briefing and plenary consideration,

this Court is likely to so find.

B. The Court of Appeals’ Ruling with Respect to the

Admissibility of Evidence of Petitioner's Alleged Prior

Similar Activities Is in Conflict With the Decisions of

Other Federal Courts of Appeals and Presents Im-

portant Questions of Constitutional Law.

As part of the government’s case-in-chief, it introduced

evidence by its principal witness that, four years earlier,

he and Petitioner had engaged in activities similar in

nature to the criminal acts charged in the present case.

Over Petitioner’s objection, the district court admitted

this testimony under the “intent” exception to Fed. R.

Evid. 404(b). The Court of Appeals affirmed, concluding

that a statement taken in violation of the defendant’s Miranda

rights could be used to impeach his testimony at trial, where the

statement partially contradicted the defendant’s direct tesimony.

Id. at 225-26; see also Fletcher v. Weir, 102 S.Ct. 1309 (1982);

Anderson v. Charles, 447 U.S. 404 (1980). This Court’s decision

in Jenkins effectively extended the rule in Harris by holding that a

prosecutor may properly impeach a defendant’s testimony by refer-

ence to any prior inconsistency, regardless of whether the prior

inconsistency is a contradictory statement or an inexplicable

silence. The reasoning employed in extending Harris to the facts

in Jenkins, however, is not applicable to the present case. Petitioner

did not testify at trial and evidence of his pre-arrest silence was

not needed to impeach his testimony. In short, there was no incon-

sistency to be resolved and no basis to “conjure up the specter of

perjury.” 447 U.S. at 253 (Marshall, J. dissenting).

19

(1) that Petitioner had somehow placed his criminal in-

tent in issue through cross-examination intended to chal-

lenge the government’s evidence of his participation in

the conspiracy charged, and (2) that, in any event, un-

der United States v. Roberts, 619 F.2d 379, evidence re-

garding prior acts is automatically admissible in every

conspiracy case, “unless the defendant has affirmatively

removed the issue of intent” (A13).

Although evidence of an accused’s prior acts may be

admissible to prove, inter alia, intent, before such evi-

dence may be admitted the district court must first de-

termine that it is relevant to an issue in the case (other

than the defendait's character) and that its probative

value is not substantially outweighed by its prejudicial

effect. See United States v. Beechum, 582 F.2d 898, 911

(5th Cir. 1978), cert. denied, 440 U.S. 920 (1979). In

the instant case, the district court clearly erred in ad-

mitting evidence of Petitioner’s alleged prior similar ac-

tivities, since neither of the prerequisites for admitting

such evidence was present.

In the first place, although intent was a formal issue

in the case, in the sense that it was an element of the

conspiracy counts charged, it was not an issue which was

contested so as to justify admitting prejudicial prior acts

evidence. Petitioner never “sharpened” the issue of intent

by asserting that the crimes charged were done inno-

cently or by accident or mistake.” Rather, he simply con-

tended that he had not participated in the offenses alleged

in the indictment.

18 Notwithstanding the Court of Appeals’ suggestion to the con-

trary, Petitioner’s cross-examination of government witnesses was

not intended to, nor did it, put Petitioner’s intent in issue. Rather,

it was intended to challenge the government’s evidence that Peti-

tioner had participated in the alleged conspiracy. As the Court of

Appeals itself noted, Petitioner “hoped the jury might conclude he

had nothing to do with the illegal drug smuggling operation,” not

that he had participated in that operation with an innocent intent.

See United States v. Powell, 587 F.2d 448, 448 (9th Cir. 1978)

(holding that a denial of participation in acts constituting the

crime charged does not raise the issue of intent).

20

Second, as the trial record shows, in admitting evi-

dence of Petitioner’s alleged prior acts, the district court

failed to balance the prejudice to Petitioner against the

government’s need for such evidence. In fact, the district

court ruled on the admissibility of “prior acts” evidence

before the government had presented any part of its di-

rect evidence and without knowing the nature of Peti-

tioner’s defense. As such, the district court simply lacked

the information necessary to determine the government’s

need for such evidence. Had the court engaged in the

requisite balancing, it is clear that, under the facts of

this case, evidence of Petitioner’s alleged prior activities

would have been excluded.’*

Rather than first determining whether the issue of in-

tent was genuinely contested and then balancing the gov-

ernment’s need for prior acts evidence against its clearly

prejudicial effect, the district court based its ruling on a

mechanical application of the Fifth Circuit’s decision in

United States v. Roberts, 619 F.2d 379. Under the theory

announced in Roberts and adopted by the lower courts in

this case, a defendant’s mere plea of not guilty is deemed

to place the question of criminal] intent at issue in every

conspiracy case. Evidence of prior similar acts is then

automatically admissible, unless the defendant affirma-

tively removes the issue of intent by stipulating that if

his participation in the acts evidencing the conspiracy is

established, then intent may be assumed. As demonstrated

below, this rule is not only in direct conflict with the de-

1¢ This was not a case in which the government was handicapped

by a lack of direct evidence of intent. Michael Warner testified at

length as to Petitioner’s alleged involvement in the drug smug-

gling activities charged in the indictment. If the jury believed

Warner’s testimony as to Petitioner’s participation in the criminal

acts charged, they could have inferred that Petitioner had engaged

in those activities with the requisite criminal intent. Hence,

Warner’s further testimony concerning Petitioner’s alleged prior

drug trafficking activities added little, if anything, to a revelation

of Petitioner’s state of mind with respect to the offenses charged.

21

cisional authority in at least three other Circuits,’’ but

impermissibly burdens an accused’s exercise of his Fifth

and Sixth Amendment rights.

In United States v. Fierson, 419 F.2d 1020 (7th Cir.

1969), the Seventh Circuit held:

[T]o justify admission into evidence of an accused’s

prior criminal acts to establish willfulness and in-

tent, it is necessary that willfulness and intent be

more than merely formal] issues in the sense that the

defendant is entitled to an instruction thereon. (Cita-

tion omitted) When, as in this case, the government

has ample evidence to take the case to the trier of

fact for its deliberation, a plea of not guilty cannot,

by itself, be construed as raising such a keen dispute

on the issue of willfulness and intent so as to justify

admission of [extrinsic offense] evidence.

Id. at 1023. Thus, contrary to the holding in the present

case, the Seventh Circuit does not permit the prosecution

to supplement primary evidence of intent with evidence

of prior acts solely by reason of the defendant’s plea of

not guility. See United States v. Kovic, 684 F.2d 512,

515 (7th Cir.), cert. denied, 103 S.Ct. 304 (1982) ; United

States v. Fearns, 501 F.2d 486, 490-91 (7th Cir. 1974).

Similarly, in United States v. Ring, 513 F.2d 1001 (6th

Cir. 1975), the Sixth Circuit held that it was error to

admit evidence of prior acts unless the defendant’s crimi-

nal intent has been made a “genuinely contested issue”

by an affirmative assertion of mistake or innocent state of

mind. /d. at 1007; see also United States v. Johnson, 697

F.2d 735, 738-39 (6th Cir. 1983). But see United States

v. Hamilton, 684 F.2d 380, 384-85 (6th Cir.), cert. de-

nied, 103 S.Ct. 312 (1982). Hence, it appears that in the

Sixth Circuit a defendant’s mere plea of not guilty will

17 Indeed, the fact and extent of this conflict has been explicitly

acknowledged by both the Fifth and Eleventh Circuits. See United

States v. Roberts, 619 F.2d at 382 n.1; United States v. Kopituk,

690 F.2d 1289, 1334 (11th Cir. 1982), cert. denied, 103 S.Ct. 2089

(1983).

22

not in and of itself justify the admission of extrinsic of-

fense evidence. Indeed, under Ring such evidence could

only be admitted in rebuttal, after the defendant had as-

serted lack of criminal] intent as an affirmative defense.

Finally, in United States v. Powell, 587 F.2d 443 (9th

Cir. 1978), the Ninth Circuit held that a defendant’s

mere denial of participation in acts evidencing the crime

charged does not raise the issue of intent. Jd. at 448; see

also United States v. Coades, 549 F.2d 1303 (9th Cir.

1977). If, as the Ninth Circuit held in Powell, a defend-

ant’s affirmative denial of participation in the criminal

acts charged does not raise the issue of intent, it follows

a fortiori that a mere plea of not guilty will not place

the question of criminal] intent in issue.

Even absent this direct conflict among the Circuits, re-

view in this Court would be appropriate inasmuch as the

rule announced in Roberts, and adopted in this case, pre-

sents important questions concerning an accused’s rights

to due process and trial by jury under the Fifth and

Sixth Amendments to the United States Constitution. As

previously noted, the district court allowed the prosecu-

tion to introduce evidence of a clearly prejudicial nature,

not because Petitioner specifically challenged the govern-

ment’s evidence on intent, but merely because he exercised

his constitutional right to plead not guilty and be tried by

a jury of his peers. Only by affirmatively removing the

issue of intent from the case, and thereby forfeiting his

right to a jury finding on this issue, could Petitioner have

avoided the introduction of clearly prejudicial matters.

The Sixth Amendment * to the United States Constitu-

tion confers upon every criminal defendant an absolute

right to a trial by jury. Duncan v. Louisiana, 391 US.

145 (1968). This includes the right to have the jury con-

18 The Sixth Amendment, U.S. Const. amend. VI, provides in

pertinent part:

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 have been committed... .

23

sider and determine each of the essential elements of the

offenses charged in the indictment. In re Winship, 397

U.S. 358 (1970); Christoffel v. United States, 39° U.S.

84 (1949). In addition, the due process clause of the

Fifth Amendment “protects the accused against convic-

tion except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he

is charged.” Jn re Winship, 397 U.S. at 364; see also

Screws v. United States, 325 U.S. 91 (1945). It is there-

fore improper for the trial court to require stipulations

or concessions which effectively preclude the jury from

considering and determining all elements essential to the

offenses charged. See United States v. Hatrak, 417 F.

Supp. 316, 322 (D.N.J. 1976), aff'd, 564 F.2d 90 (3rd

Cir. 1977), cert. denied, 435 U.S. 906 (1978).

By entering a plea of not guilty, Petitioner put the

government to the burden of proving beyond a reason-

able doubt every element of the crimes charged in the

indictment. In applying the rule in Roberts, however,

the lower courts presented Petitioner with a constitution-

ally unacceptable choice: either to affirmatively remove

the issue of intent from the jury’s consideration, or suffer

the introduction of clearly prejudicial evidence without

regard to the government’s need for such evidence. Peti-

tioner respectfully submits that to impose such a choice

on a criminal defendant is contrary to this Court’s hold-

ing in In re Winship, and impermissibly burdens the ex-

ercise of his Fifth and Sixth Amendments rights.

C. The Court of Appeals’ Ruling Affirming the Denial of

Petitioner’s Motion Pursuant To 18 U.S.C. § 3504 (1976)

Is in Conflict With the Decisions of Other Federal

Courts of Appeals and Presents an Important Ques-

tion of Federal Statutory Construction.

Pursuant to 18 U.S.C. § 3504 (1976), Petitioner moved

the district court to require the government to affirm or

deny the use of illegal electronic surveillance in its in-

vestigation leading to the prosecution of this case. Sec-

tion 3504 provides, in pertinent part, as follows:

24

[U]pon a claim by a party aggrieved that evidence

is inadmissible because it is the primary product of

an unlawful act or because it was obtained by the

exploitation of an unlawful act, the opponent of the

claim shall affirm or deny the occurrence of the al-

leged unlawful act.

As used in this section “unlawful act’ means any

act [involving] the use of any electronic, mechani-

cal, or other device .. . in violation of the Constitu-

tion or laws of the United States....

18 U.S.C. § 3504 (1976) (emphasis added). The district

court denied Petitioner’s motion, and the Court of Ap-

peals affirmed, ruling that Petitioner’s assertion of il-

legal surveillance was insufficient to constitute a “claim”

within the meaning of section 3504, because it did not

contain ‘“‘a positive statement that unlawful surveillance

did in fact take place,” or demonstrate a direct causal

link between such surveillance and the prosecution of this

ease (A15-16). As shown more fully below, this construc-

tion of the term “claim” appears to be contrary to the

express purpose of section 3504 and conflicts with the de-

cisions of other federal courts of appeals construing the ,

statute.

Prior to the enactment of section 3504, defendants in

criminal trials who suspected that the prosecution had

relied upon illegal electronic surveillance were stymied in

their efforts to establish the existence of such surveillance.

The courts generally applied a rule, based in part on

dicta in Nardone v. United States, 308 U.S. 338 (1939),

which placed upon the defendant the burden of proving

that illegal surveillance had been employed and that a

substantial part of the government’s case was derived

from such surveillance. Only after the defendant ten-

dered such proof did the burden shift to the government

to show that its evidence had an independent source. See,

e.g., United States v. Pardo-Bolland, 229 F. Supp. 473,

25

4/4-75 (S.D.N.Y. 1964); United States v. Casanova, 213

F. Supp. 654 (S.D.N.Y. 1963).

Behind this seemingly innocuous formulation, however,

lay a peculiar paradox: the covert nature of electronic

surveillance made the defendant's proof of such surveil-

lance virtually impossible. Indeed, only infrequently did

a defendant even attempt to make the requisite showing,

and there appears to be no reported case finding that a

defendant had met his burden. See, e.g., United States v.

Tanner, 279 F. Supp. 457 (N.D. Ill. 1967) ; United States

v. Allied Stevedoring Corp., 165 F. Supp. 440 (S.D.N.Y.

1958).

Recognizing these inequities, Congress in enacting sec-

tion 3504 as part of the Omnibus Crime Control Act and

Safe Streets Act of 1968, 82 Stat. 211, as amended, 18

U.S.C. §§ 2510-2520 (1976), radically altered the alloca-

tion of burdens with respect to establishing electronic

surveillance in order to protect victims of unlawful

searches and seizures. See Hearings on S.30 Before Sub-

comm. No. 5 of the House Comm. on the Judiciary, 91st

Cong., 2d Sess. 84, 104 (1970) (statement of Sen. Mc-

Clennan, sponsor) ; see also Gelbard v. United States, 408

U.S. 41, 56 (1972). The essential purpose of adding sec-

tion 3504 was to combine a limited and carefully articu-

lated grant of power to intercept communications with an

‘elaborate set of safeguards to deter abuse and to ex-

punge its effects in the event that it should occur. The

clear intent and purpose of Congress, however, has not

been uniformly achieved and the seemingly straightfor-

ward requirement that the government affirm or deny

claims of illegal electronic surveillance has produced con-

siderable litigation.

Many of the cases involving section 3504 have dealt

with the question of what constitutes a “claim” sufficient

to trigger the government’s obligation to affirm or deny.

Inasmuch as the statute does not define the term “claim,”

and in the absence of guidance from this Court on the

26

issue,’ lower federal courts have adopted a number of

differing and often conflicting interpretations.

A number of Circuits have held that a defendant’s mere

assertion of illegal electronic surveillance is sufficient to

trigger the government's obligation to affirm or deny.

For example, in Jn re Evans, 452 F.2d 1239 (D.C, Cir.

1971), cert. denied, 408 U.S. 930 (1972), the District of

Columbia Circuit held that section 3504 is triggered “by

the mere assertion that unlawful wiretapping has been

used against a party."’ /d. at 1247; accord, United States

v. James, 609 F.2d 36 (2d Cir. 1979), cert. denied, 445

U.S. 905 (1980) ‘claim with a “colorable basis” will ob-

lige government to respond! ; United States v. Williams,

580 F.2d 578 (D.C. Cir.), cert. denied, 489 U.S, 8382

(1978) (“{t]o facilitate an accused’s effort to demon-

strate that evidence employable against him is contami-

nated by illegal surveillance . . . the Government, upon

request, must affirm or deny . . .”); United States v.

Vielguth, 502 F.2d 1257 (9th Cir. 1974) (“mere claim

of such surveillance” is enough where claim is that de-

fendant’s conversations were unlawfully wiretapped; a

more stringent standard applies to claims that conversa-

tions in which the defendant did not participate were

wiretapped) ; see also People v. Grieco, 94 Misc.2d 1048,

406 N.Y.S.2d 426, aff'd, 98 Misc.2d 310, 413 N.Y.S.2d

821 (1978) (noting that under section 3504 “it is the

government’s obligation to affirm or deny .. . upon the

mere assertion that unlawful wiretapping has been

used’’).

%” Although this Court considered § 3504 in Gelbard v. United

States, 408 U.S. 41, it never reached the question of what constitutes

a sufficient claim to require the government to search its files to

determine whether it has conducted illegal electronic surveillance.

The question presented in Gelbard was whether grand jury wit-

nesses could rely upon 18 U.S.C. § 2515 (1976) as a defense to

contempt charges imposed for their refusal to testify. Since the

government had acknowledged conducting illegal electronic surveil-

lance, it was unnecessary to reach the question of whether a suffi-

cient claim had been made. 408 U.S. at 46-47.

27

In conflict with the above cases is the ruling in the

present case and those cases upon which the Court of

Appeals relied in reaching its decision. See In re Baker,

680 F.2d 721 (11th Cir. 1982); United States v. Rubin,

559 F.2d 975 (5th Cir. 1977), vacated on other grounds,

439 U.S. 810 (1978); United States v. Tucker, 526 F.2d

279 (5th Cir.), cert. denied, 425 U.S. 958 (1976). These

cases suggest that a claim of illegal wiretapping will suf-

fice only if it amounts to a “positive statement that un-

lawful surveillance did in fact take place”. Thus, in this

case, the Court of Appeals concluded that what was re-

quired in Petitioner’s affidavit, filed in support of his

section 3504 motion, was “an unequivocal statement that

his calls were actually monitored” (A15).

The rule applied by the Court of Appeals in this case,

as fashioned from Baker, Rubin, and Tucker, is at best

a modified version of the pre-section 3504 rule that a

defendant must prove the occurrence of surveillance. The

covert nature of electronic surveillance, which made it

virtually impossible for a defendant to carry his burden

before the enactment of section 3504, also makes it virtu-

ally impossible for a defendant to gather the evidence

necessary for an “unequivocal statement” that surveil-

lance has occurred, or show a direct causal link between

such surveillance and his prosecution. The rule adopted

in the present case thus arbitrarily forecloses resort to

section 3504, limiting the statute’s availability to those

claimants fortunate enough to have been targets of sloppy

government investigations. In this respect, it should be

noted that a claimant who possesses proof of illegal elec-

tronic wrveillance and, therefore, is able to make an un-

equivocal statement that surveillance occurred, is not de-

pendent upon an acknowledgement of government wrong-

doing. Rather, he may proceed directly with a motion to

suppress. 18 U.S.C. § 2518(10) (a) (1976). Such a claim-

ant is thus precisely the person who least needs the pro-

tection which section 3504 was enacted to provide.

28

Petitioner respectfully submits that the interpretation

of the term “claim’’ adopted by the Court of Appeals in

the present case vitiates the protections afforded by sec-

tion 3504 to victims of illegal electronic surveillance and

is contrary to the plain intent of Congress. In any event,

it is apparent that the denial of Petitioner’s motion under

18 U.S.C. § 3504 (1976) involves a substantial question

of statutory construction which this Court has never ad-

dressed and with respect to which the various courts of

appeals have reached conflicting conclusions. The instant

case presents an opportunity for this Court to fashion a

rule which properly balances the rights of the criminal

defendant under section 3504 against the needs and re-

sources of law enforcement agencies.

CONCLUSION

It is respectfully submitted that the issues presented

in this petition are both substantial and important, and

that this Court should grant a writ of certiorari to review

the judgment of the Court of Appeals for the Eleventh

Circuit.

Respectfully submitted,

GORDON DEAN BOOTH, JR.

Of Counsel:

Marc K, RITZMANN

PAUL JAMES CONNELL

KILPATRICK & Copy

3100 Equitable Building

100 Peachtree Street

Atlanta, Georgia 30043

(404) 572-6500

Counsel of Record

3100 Equitable Building

100 Peachtree Street

Atlanta, Georgia 30043

(404) 572-6500

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Memorandum Opinion and Order of the United States

Court of Appeals for the Eleventh Circuit, June 23,

ERE Asians ke ne ORAL etl EME SCRE Metab

Order of the United States Court of Appeals for the

Eleventh Circuit, Per Curiam, August 15, 1983,

Denying Petition for Rehearing and Suggestion for

I IN I so ccirccesi tin ssad nines deincnnecoatianatepiasinbanniins

Notice of Appeal, June 28, 1982 .00....0......ccccccceceeceeeeeeeeeeee

Excerpts of Transcript of Hearing, May 28, 1982, re-

lating to the District Court’s Denial of Defendant’s

SI, SD TO So edn ahatamencnigne

Motion to Compel the Government to Affirm or Deny

the Existence of Electronic or Other Wiretap Inter-

ceptions and to Suppress the Fruits Thereof, May 24,

MUI sé-sinidashthccersatatitarceirni hadaiandieecncbdaiesieeahladeonacabiciminiannatiibetoies

Affidavit of Charles T. Erion, Counsel for Defendant

Dewey T. Nabors, Jr., in Support of Motion to Com-

BO I TI. PHIUUI ccccitnsasicietanescceenitancioctaclelbaesaedibacebbcaepiaitaas ce

Affidavit of Dewey T. Nabors, Jr., Defendant, in Sup-

port of Motion to Compel, May 24, 1982 000.000.0000...

Excerpts of Transcript of Trial, June 7, 1982, relating

to the District Court’s Ruling Admitting tiie Prior

Acts Testimony of Michael David Warner ................

Excerpts of Transcript of Trial, June 7, 1982, relating

to the District Court’s Ruling Admitting Evidence

of Defendant’s Pre-Arrest Silence ...00000..00...00..00..--

Indictment of Grand Jury in the United States District

Court for the Middle District of Georgia, December

Bib tl shslnisvdesschliiecsdasiseaminetinese bs us

Page

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APPENDIX

Memorandum Opinion and Order of the United States

Court of Appeals for the Eleventh Circuit

June 23, 1983

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 82-8398

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

DEWEY T. NABORS, JR.,

Defendant-A ppellant.

June 28, 1983

Appeal from the United States District Court

for the Middle District of Georgia

Before RONEY and HILL, Circuit Judges, and

MORGAN, Senior Circuit Judge.

RONEY, Circuit Judge:

Dewey T. Nabors, Jr. was convicted of conspiracy,

possession and importation of marijuana and methaqua-

lone. 21 U.S.C.A. §$§ 841(a) (1), 846, 952(a), 963; 18

U.S.C.A. § 2. On appeal, he asserts four errors by the

district court: (1) admission of laboratory analyses of

the contraband which had been destroyed before Nabors

A2

had an opportunity to examine it, (2) admission of evi-

dence that Nabors, as a named insured of the airplane

involved in the drug smuggling, failed to file an insurance

claim on the airplane or otherwise cooperate with the in-

surance company, even though the aircraft sustained

extreme damage in the drug operation, (3) admission of

evidence showing Nabors’ involvement in similar illegal

activity four years earlier, and (4) denial of Nabors’

motion to compel the government to affirm or deny the

monitoring of international phone conversations in which

Nabors discussed drug smuggling. We affirm.

A brief account of the factual background to this case

is helpful before going into more detail on the facts and

arguments specific to each issue. On April 13, 1980

Michael Warner landed an airplane, leased by Nabors, in

middle Georgia near the town of Unadilla. Warner, flying

alone, chose the particular landing site, a cropdusting

strip, because bad weather prevented him from landing at

his intended destination. Warner immediately set the

plane on fire, inadvertently causing local law enforce-

ment officers to arrive at the scene. The officers were able

to save some of the airplane’s contents, which they sus-

pected to be marijuana and methaqualone. They arrested

Warner, who was convicted in state court of drug charges.

Warner was the key government witness at Nabors’

subsequent trial in federal court. He testified that Nabors

had hired him to fly to Colombia, pick up marijuana and

methaqualone from Nabors, and bring it back to Georgia.

Nabors did not take the stand in his own defense, electing

simply to attack Warner’s credibility and other aspects of

the government’s case.

1. Destruction of the Evidence

Two months before Nabor’s trial, the Georgia Bureau

of Investigation (G.B.I.) destroyed the alleged contraband

taken from the burning plane. As a result, federal au-

A3

thorities could not comply with Nabors’ motion to inspect

and test the prosecution’s evidence. Nabors argues the

government’s actions deprived him of due process, requir-

ing the exclusion at trial of the laboratory analyses of the

seized material and the dismissal of at least the sub-

stantive counts of the indictment.

Clearly a defendant in a drug prosecution has a due

process right to have an expert of his choosing perform

an independent analysis on the seized substance. See

United States v. Gaultney, 606 F.2d 540, 545 (5th Cir.

1979), modified on other grounds, 615 F.2d 642 (5th Cir.

1980), rev’d on other grounds sub nom, Steagald v.

United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d

38 (1981); cf. Barnard v. Henderson, 514 F.2d 744, 746

(5th Cir. 1975) (criminal defendant has right to examine,

through his own expert, critical evidence subject to vary-

ing expert opinion). The government has a concomitant

responsibility to try in good faith to preserve important

material and to locate it once the defendant moves for

discovery. Armstrong v. Collier, 586 F.2d 72, 78 (5th

Cir. 1976) ; United States v. Bryant, 439 F.2d 642, 651

(D.C.Cir.1971). The government does not dispute its

responsibility under the law.

The issue here is whether the mistaken destruction of

the material, so that the defendant cannot examine it,

requires the exclusion of testimony as to the nature of the

material by the government witness who tested it. The

first question is whether Nabors is entitled to exclusion

under a per se rule since the identification of the material

as marijuana and methaqualone was central to the prose-

cution, at least for the substantive offenses. We think not.

Two cases are helpful in this conclusion. The recent Su-

preme Court decision in United States v. Valenzuela-

Bernal, 458 U.S. , 102 S.Ct. 3440, 78 L.Ed.2d 1193

(1982), involved the government’s deportation of potential

witnesses, thus putting them beyond the subpoena reach

of the defendant. The Court, in a thorough discussion

A4

of related cases involving the deprivation of evidence to

the defendant, held there to be no due process violation

unless the defendant made some plausible showing that

the evidence would have been material ana favorable to

his defense. Jd. at ——, 102 S.Ct. at 3448, 73 L.Ed.2d at

1205-06. The seminal case in our Circuit involved the

government’s refusal to allow the defendant to inspect the

alleged murder weapon and a 75% destroyed bullet which

killed the victim. Government ballistics experts testified

that the bullet came from defendant’s gun. The Court

reversed the defendanis conviction, reasoning the bullet

was “a piece of critical evidence whose nature is subject

to varying expert opinions.” Barnard v. Henderson, 514

F.2d at 746.

There is no evidence in this case to suggest that experts

would have disagreed as to the identification of the seized

material. Nor in the experience of this Court in cases of

this kind, unlike bullet cases, have we found varying

opinions among experts as to the identification of these

two substances.

Rather than a per se rule of exclusion, the test in this

Circuit focuses on “the materiality of the evidence, the

likelihood of mistaken interpretation of it by government

witnesses or the jury, and the reasons for its nonavail-

ability to the defense.” United States v. Herndon, 536

F.2d 1027, 1029 (5th Cir. 1976). Other circuits have also

looked to the government’s culpability and the prejudice

to the defendant. See United States v. Picariello, 568

F.2d 222, 227 (1st Cir. 1978) ; cf. United States v. Loud

Hawk, 628 F.2d 1139, 1152-53 (9th Cir. 1979) (en banc)

(majority opinion on issue by J. Kennedy) (looking to

these factors but indicating the issue is generally not one

of constitutional dimensions), cert. denied, 445 U.S. 917,

100 S.Ct. 1279, 63 L.Ed.2d 602 (1980) —— U.S. ——,

103 S.Ct. 755, 75 L.Ed.2d —— (1983). Without discount-

ing the right of defendants to examine the material they

are charged with possessing, we hold that where the ma-

Ab

terial has been destroyed in spite of the government’s good

faith attempt to preserve it, testimony as to the nature

of the material need not be suppressed absent some show-

ing that the testing of the material by another expert

would have been reasonably likely to produce evidence

favorable to the defendant.

Nabors admits there is no indication that the govern-

ment acted with improper motive when it destroyed the

alleged contraband. See United States v. Herndon, 536

F.2d at 1029. The destruction appears to have been a

mistake, which occurred despite the efforts of federal and

local law enforcement officials to have the evidence pre-

served. Briefly, after Michael Warner’s trial in state

court, the local sheriff’s office returned the seized material

to the Georgia Bureau of Investigation laboratory with

instructions that it should be preserved. Prior to Nabors’

indictment, an Assistant United States Attorney spoke by

telephone to the G.B.I. agent in charge of the case, re-

questing that G.B.I. preserve the evidence for use in a

federal prosecution. Unfortunately, a communication

breakdown resulted in the destruction of the evidence by

the director of the G.B.I. laboratory. Thus, while in retro-

spect the government perhaps should have done more to

ensure the preservation of the evidence, it clearly did not

act “for the purpose of inflicting a disadvantage upon the

defendant[],” United States v. Gordon, 580 F.2d 827,

837 (5th Cir.), cert. denied, 4389 U.S. 1051, 99 S.Ct. 731,

58 L.Ed.2d 711 (1978), 439 U.S. 1079, 99 S.Ct. 860, 59

L.Ed.2d 49 (1979), or as part of a policy of “systematic

non-preservation” of evidence, United States v. Bryant,

439 F.2d at 652. The government agents knew the law

and acted accordingly. Thus exclusion is not necessary to

sanction or instruct the government for a violation of

law, as is the rationale for some exclusionary rules.

There is virtually no likelihood that the absence of the

alleged contraband affected the verdict in a manner prej-

udicial to Nabors. United States v. Gordon, 580 F.2d at

A6

837. The government, through various witnesses, explained

the absence of the evidence to the jury. It presented over-

whelming evidence showing the substances were indeed

marijuana and methaqualone. The G.B.I. laboratory di-

rector testified that he tested the substances and found

them to be the two drugs in question. The prosecution

presented photographs of the seized material. The local

law enforcement agent who removed the material from

the burning plane testified that he smelled marijuana.

The pilot, Michael] Warner, testified the cargo he picked

up from Nabors in Colombia consisted of marijuana and

methaqualone. According to Warner, Nabors had agreed

to pay him $50,000 to transport 900 pounds of marijuana.

Nabors had 2 full opportunity to cross-examine these wit-

nesses. It seems clear that the absence of the material did

not deprive Nabors of any useful evidence. He presented

no evidence suggesting the material was anything other

than the contraband charged. In short, the absence of the

seized evidence did not deprive Nabors of a fundamentally

fair trial. See United States v. Herndon, 536 F.2d at

1030.

2. Admission of Evidence of Prior Silence

The airplane was insured. At trial, the prosecution

presented, in its case in chief, evidence that Nabors had

failed to respond to a request by the insurance company

‘ for a statement as to Nabors’ involvement in the use and

damage of the aircraft. Nabors immediately objected to

the evidence, asserting that its introduction violated the

self incrimination and due process clauses of the fifth

amendment to the Constitution. Emphasizing that he did

not intend to testify in his own behalf, Nabors reasoned

that the evidence improperly enabled the prosecution to

comment on his silence and allowed the jury to infer

guilt therefrom.

We decide the constitutional issue on the assumption

that the evidence was relevant. Nabors objected and ap-

A7

pealed purely on fifth amendment grounds. We generally

do not review evidentiary rulings except on grounds

asserted in the contemporaneous objection. See United

States v. Arteaga-Limones, 529 F.2d 1188, 1198-99 (5th

Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d

286 (1976) ; United States v. Fendley, 522 F.2d 181, 185-

86 (5th Cir. 1975). In any event, questions of relevance

fall within the broad discretion of the trial court. United

States v. Linetsky, 583 F.2d 192, 204 (5th Cir. 1976);

United States v. Dobbs, 506 F.2d 445, 447 (5th Cir.

1975).

The constitutionality of admitting the evidence is diffi-

cult to decide. The leading Supreme Court cases on the

prosecution’s use of a defendant’s silence are not directly

on point. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240,

49 L.Ed.2d 91 (1976), the Court, in a post-arrest silence

case, held the government cannot, consistent with due

process, bring up at trial a-defendant’s silence after re-

ceiving Miranda warnings, even for impeachment pur-

poses. See also United States v. Hale, 422 U.S. 171, 95

S.Ct. 2183, 45 L.Ed.2d 99 (1975) (same result reached

based on Supreme Court’s supervisory power over federal

courts). In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct.

2124, 65 L.Ed.2d 86 (1980), however, the Court held that

the government can use pre-arrest silence to impeach a

defendant. See also Lebowitz v. Wainwright, 670 F.2d

974 (11th Cir. 1982). The present case, involving pre-

arrest silence, differs in two critical respects from Doyle

and Jenkins and the other cases concerning the use of a

defendant’s silence. First, the government introduced evi-

dence of defendant’s silence in its direct case in a trial

in which the defendant never testified. In virtually all

the major prior silence cases, the prosecution raised the

issue on cross examination or rebuttal in an effort to im-

peach the defendant-witness. The logical theory of ad-

missibility in this context is that the silence amounts to

a prior inconsistent statement. Second, the silence here

A8

did not occur in response to a governmental inquiry as is

usually the fact in cases dealing with the point. A private

insurance company asked Nabors to cooperate in its own

investigation of the damage to the plane. The insurer

sent its inquiry one and one-half years before the indict-

ment of Nabors. No Miranda warnings were given, and

none had to be.

Under one view, this latter distinction might be disposi-

tive of the fifth amendment argument in this case. In a

concurring opinion in Jenkins, Justice Stevens, joined by

retired Justice Stewart, wrote:

The fact that a citizen has a constitutional right to

remain silent when he is questioned has no bearing

on the probative significance of his silence before he

has any contact with the police... When a citizen

is under no official compulsion whatever, either to

speak or to remain silent, I see no reason why his

voluntary decision to do one or the other should raise

any issue under the Fifth Amendment. For in de-

termining whether the privilege is applicable, the

question is whether petitioner was in a position to

have his testimony compelled and then asserted his

privilege, not simply whether he was silent. A differ-

ent view ignores the clear words of the Fifth Amend-

ment.

447 U.S. at 248-44, 100 S.Ct. at 2182 (Stevens, J., con-

curring) (footnote omitted). According to Justice

Stevens, the prosecution can raise prior silence, even if

the defendant does not elect to testify, as long as the evi-

dence is relevant and the silence was not in response to

governmental] inquiry. Jd. at 244 n.7, 100 S.Ct. at 2132

n.7.

A majority of the Supreme Court has never adopted

Justice Stevens’ analysis, however, so that theory cannot

contro] the decision here. Only one lower court has to

A9

our knowledge adopted the Stevens approach. United

States v. Robinson, 523 F.Supp. 1006, 1010-11 (E.D.N.Y.

1981), aff'd, 685 F.2d 427 (2d Cir. 1982). Robinson held

that the prosecution did not infringe defendant’s fifth

amendment privilege by raising, in its case in chief in

a counterfeiting trial in which defendant did not testify,

defendant’s silence in the face of an implicit accusation

by a cashier that he had handed her counterfeit money.

Even there, the evidence might be admissible without the

Stevens rationale. Robinson involved silence combined

with action at the time the crime was committed. When

the Robinson cashier handed back the tendered bills and

asked for real money, the defendant, without saying any-

thing, handed the cashier genuine money. The Robinson

decision differs from the case at bar in that here the

silence occurred independent from the commission of the

crime.

We premise our decision that no reversible error oc-

curred in this case on four rationales. First, it seems

clear that if Nabors had made some statements to the

insurance company, the prosecution could have used them,

as not having been compelled by the government. See

United States v. Moeller, 402 F.Supp, 49, 58-56 (D.Conn.

1975). Presumably, if it could have used Nabors’ state-

ments against him, assuming relevancy, it should be able

to use his silence against him, assuming relevancy. The

principle that runs through the cases involving silence is

all the government cannot use a defendant’s assertion

of the constitutional privilege against self-incrimination

to incriminate him. E.g., Doyle v. Ohio, 426 U.S. at 618,

96 S.Ct. at 2245. Silence without the claim of constitu-

tional privilege does not implicate that principle of fair-

ness. The Supreme Court has held that the fifth amend-

ment privilege “ is not self-executing,” at least where, as

here, the inquiry does not obviously call for an incriminat-

ing answer. Roberts v. United States, 445 U.S. 552, 559,

100 S.Ct. 1358, 1368, 63 L.Ed.2d 622 (1980). See also

A 10

United States v. Kordel, 397 U.S. 1, 9-10, 90 S.Ct. 768,

768, 25 L.Ed.2d 1 (1970) ; United States ex rel. Vajtauer

v. Commissioner of Immigration, 273 U.S. 1038, 1138, 47

S.Ct. 302, 306, 71 L.Ed.2d 560 (1927). Nabors simply

did not respond to the insurance company’s general re-

quest for an account of his involvement with the plane.

He never asserted the privilege. Because he did not claim

it at the time of the silence, he could not claim it at trial.

Second, the evidence here is more than testimonial in

nature. Certainly the actions of a defendant which are

inconsistent with innocence are admissible without regard

to the fifth amendment privilege. Here the point the gov-

ernment was presenting to the jury was Nabors’ failure

to make a claim for the insurance proceeds to which he

was entitled if he was innocent of criminal involvement

with that plane. In closing argument, government coun-

sel, commenting on defense attorney’s suggestions that

Nabors did not grant Mike Warner permission to use the

plane for criminal activity, said:

If you believe that, don’t you reckon Mr. Nabors

would’ve said, “Mike, you took my airplane and

committed a crime in it. I don’t want nothing to do

with you.” ... And if it was somebody taking his

plane without authorization and running off and com-

mitting a crime in it and burning it up, don’t you

know he’d come up to the insurance company and

say, “Look here, I’ve got a loss that’s covered by

your insurance, and I demand payment.” He didn’t

do that.

Viewed as action, not silence, the evidence does not impli-

cate the fifth amendment privilege against compelled

testimony. We need not concern ourselves as to whether

there were innocent explanations for this action that rob

it of evidentiary value. None were argued.

Third, we are quite aware of the absence of cases which

allow the use of silence in the government’s case in chief.

All

Just two and one-half years ago, the Second Circuit com-

mented that it could find “no decision permitting the use

of silence, even the silence of a suspect who has been

given no Miranda warnings and is entitled to none, as

part of the Government’s direct case.” United States v.

Caro, 637 F.2d 869, 876 (2d Cir. 1981) (suggesting the

district court’s admission of evidence of silence in that

case might have been error, but holding the error harm-

less). See also United States v. Lewis, 651 F.2d 1163,

1165-69 (6th Cir. 1981) (reversing conviction where gov-

ernment agent testified on direct to defendant’s silence

following Miranda warnings). The government cites only

one case in which a court allowed the prosecution to com-

ment on a defendant’s silence in its case in chief. United

States v. Robinson, 523 F.Supp. at 1011, the case of silence

combined with action of the time of the crime’s commis-

sion.

Even with the lack of authority for admissibility, how-

ever, we cannot figure out why the case should be reversed

because of the admission of this evidence. Relevant evi-

dence is, as a general proposition, admissible unless there

is some reason for its exclusion. Fed.R.Evid. 402. That

the evidence might have called attention to defendant’s

failure to testify, the general thesis of the argument on

appeal, is not persuasive. Much incriminating evidence

presented by the prosecution in criminal cases cries out

for an explanation by the defendant and points up his

failure to testify. The two cases relied upon by defendant,

Helton v. United States, 221 F.2d 338, 341-42 (5th Cir.

1955), and United States v. Sprengel, 103 F.2d 876, 882-

83 (3rd Cir. 1939), are readily distinguishable. In Helton

the questions were asked by a police officer; in Sprengel

by a government postal inspector. Nabers has given us no

persuasive justification for reversing the trial court on

this point.

Fourth, the prosecution presented substantial evidence

of defendant’s guilt, even without the evidence of Nabors’

A 12

silence in response to the insurance inquiry. Michael

Warner testified in detail about Nabors’ hiring him to

transport the marijuar1 from Colombia. He also testified

to prior similar drug smuggling operations headed by

Nabors. The government presented some corroborating

testimony, especially about the prior similar acts, includ-

ing a recording of a telephone conversation between

Nabors and Warner in which they discussed a landing

site. Nabors presented virtually no rebuttal evidence. In

light of the other evidence of guilt, admission of the evi-

dence amounted to harmless error, if error at all. See

United States v. Resnick, 483 F.2d 354, 356-58 (5th

Cir.), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d

246 (1973).

8. Admission of Evidence of Similar, Prior Acts

Over Nabors’ objection, the district court admitted evi-

dence that, four years before the drug smuggling opera-

tion charged, Nabors had been engaged with Warner in

a series of virtually identical operations. The govern-

ment’s theory of admissibility, which the district court

evidently accepted, was that the evidence went to de-

fendant’s intent to commit the crimes charged.

Under Fed.R.Evid. 404(b), evidence of other crimes is

admissible to establish, among other things, intent but is

inadmissible to show the defendant’s character. To be

admissible, the evidence must satisfy a two-part test:

First, it must be determined that the extrinsic offense

evidence is relevant to an issue other than the

defendant’s character. Second, the evidence must

possess probative value that ig not substantially out-

weighed by its undue prejudice... .

United States v. Beechum, 582 F.2d 898, 911 (5th Cir.

1978) (en banc) (footnote omitted), cert. denied, 440

U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).

A138

Nabors acknowledges the evidence went to an issue

other than character. The extrinsic offenses, involving

related drug smuggling operations, require the same in-

tent as the charged offenses, and, based on Warner’s de-

tailed testimony and the corroborating evidence, the jury

could find that Nabors committed the extrinsic offenses.

United States v. Beechum, 582 F.2d at 9138.

The question is whether the danger of unfair prejudice

substantially outweighed the evidence’s probative value.

The answer to this question is generally for the trial

judge. “[Tjhe decision to admit extrinsic [crime] evi-

dence can be disturbed only for an abuse of discretion.”

United States v. Benton, 637 F.2d 1052, 1056 (5th Cir.

1981).

The evidence had substantial probative value. Nabors’

assertion to the contrary, his criminal intent appears to

have been very much in issue. Through cross-examination

of government witnesses, Nabors suggested that he had

not operated the airplane in a furtive manner indicative

of criminal conduct. The defense brought out, for ex-

ample, that the insurance policy on the plane provided

detailed information about Nabors and that Nabors

readily identified himself to airport employees. In his

closing argument, defense counsel directly raised the

question of criminal intent: “A friend [Nabors] lets him

[Warner] fly, there’s nothing wrong with that.” Nabors

evidently hoped the jury might conclude he had nothing

to do with the illegal drug smuggling operation. In any

event, the former Fifth Circuit has held that in a con-

spiracy case in which the defendant pleads not guilty,

extrinsic offense evidence is admissible in the govern-

ment’s case in chief unless the defendant has affirmatively

removed the issue of intent. Uvited States v. Roberts,

619 F.2d 379, 383 (5th Cir. 1980).

The evidence cannot be attacked as unnecessary or

cumulative. Nabors aggressively challenged Warner’s

credibility, emphasizing that the government’s key wit-

Al4

ness was an admitted perjurer and convicted felon, In

addition to Warner’s testimony about the prior offense,

the government introduced a tape recording of a tele-

phone conversation between Nabors and Warner just prior

to some of the alleged prior offenses in which the two men

discussed a landing site for an upcoming flight by

Warner. Thus the evidence of the extrinsic drug smug-

gling operations, which also entailed an airplane flown

by Warner, bolstered the potentially shaky primary evi-

dence of intent.

Balanced against its probative value, the extrinsic

offense evidence does not seem to have been unduly or

unfairly prejudicial. The judge properly instructed the

jury both at the time the government introduced the

evidence and prior to sending the jury out that it could

not consider the extrinsic crime evidence as proof that

Nabors committed the charged offenses. He stated the

evidence should be considered only in regard to intent.

The limiting instruction minimized the potential for un-

fair prejudice. United States v. Black, 595 F.2d 1116,

1117-18 (5th Cir. 1979).

4. Denial of Motion to Compel Government to Affirm

or Deny Existence of Wiretap Interceptions

Pursuant to 18 U.S.C.A. § 3504, Nabors moved just

prior to trial to require the prosecution to disclose the

use of any electronic surveillance or monitoring in the

criminal investigation. The district court denied the mo-

tion, terming it both insufficient and untimely.

The controlling statute, 18 U.S.C.A. § 8504, provides in

effect that when a defendant claims evidence is inadmis-

sible as illegally obtained by use of an electronic device,

the government must affirm or deny the use of the

electronic device.

(a) In any trial... before any court ... of the

United States—

A 15

(1) upon a claim by a party aggrieved that evi-

dence is inadmissible because it is the primary prod-

uct of an unlawful act or because it was obtained

by the exploitation of an unlawful act, the opponent

of the claim shall affirm or deny the occurrence of

the alleged unlawful act;

(b) As used in this section “unlawful act” means any

act [involving] the use of any electronic, mechanical,

or other device . . . in violation of the Constitution

or laws of the United States or any regulation or

standard promulgated pursuant thereto.

The claim to trigger this section must be more than an

allegation that unlawful surveillance may have occurred.

While a mere assertion of illegal wiretapping unsupported

by evidence may suffice, it must be a positive statement

that unlawful curvelliance did in fact take place. Jn re

Baker, 680 F.2d 721, 722 (11th Cir. 1982) ; United States

vw. Rubin, 559 F.2d 975, 989 (5th Cir. 1977), judgment

vacated and remanded on other grounds, 439 U.S. 810, 99

S.Ct. 67, 58 L.Ed.2d 102 (1978), rev’d in part on other

grounds on remand, 591 F.2d 278 (5th Cir.), cert. denied,

444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979);

United States v. Tucker, 526 F.2d 279, 282 (5th Cir.),

cert. denied, 425 U.S. 958, 96 S.Ct. 1788, 48 L.Ed.2d 208

(1976).

Nabors submitted two affidavits in support of his mo-

tion. One, by his attorney, stated essentially that govern-

ment documents revealed a policy of the National Se

curity Agency (NSA) to monitor international telephone

conversations. The other, signed by Nabors himself,

stated that Nabors had been a party to international tele-

phone calls concerning the subject of the indictment. It

continued :

[B]ased on NSA’s policy of surveillance, I am in-

formed and believe, and thereon allege, that some or

A 16

all of my aforementioned telephone conversations

with persons located in Central and South America,

were, in all likelihood, intercepted by the United

States of America (emphasis added).

Without considering the timeliness of Nabors’ motion,

we agree with the district court that it is legally in-

sufficient. First, Nabors’ affidavit is devoid of an un-

equivocal statement that his calls were actually monitored.

See, e.g., United States v. Rubin, 559 F.2d at 989 (state-

ment by defendant that he has “reason to believe” his

conversations were monitored is insufficient). Second,

Nabors did not allege, as the statute suggests, a causal

link between the monitoring and prosecution. Rather, he

asked the court to “make inquiry [to] determin[e]”

whether any evidence was the fruit of illegal surveillance.

AFFIRMED.

AlT7

Order of the United States Court of Appeals

for the Eleventh Circuit, August 15, 1983,

Per Curiam, Denying Defendant's Petition

for Rehearing and Suggestion for Rehearing En Banc

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-8398

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

DEWEY T. NABORS, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Georgia

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion June 28, 11 Cir., 1988, —— F.2d ——-).

(August 15, 1983)

Before RONEY and HILL, Circuit Judges, and MOR-

GAN, Senior Circuit Judge.

PER CURIAM:

The Petition for Rehearing is DENIED and no mem-

ber of this panel nor Judge in regular active service on

A18

the Court having requested that the Court be polled on

rehearing en bane (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the Suggestion

for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/8/ Paul H. Roney

United States Circuit Judge

A19

Notice of Appeal

June 28, 1982

IN THE DISTRICT COURT FOR THE UNITED

STATES FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal No. 81-5-AMER

UNITED STATES OF AMERICA

vs.

DEWEY T. NABORS, JR.

NOTICE OF APPEAL

Notice is hereby given that Dewey T. Nabors, Jr.,

Defendant above named, hereby appeals to the United

States Court of Appeals for the Eleventh Circuit from

the final judgment of conviction and sentence entered in

this action on the 28th day of June, 1982.

This 28th day of June, 1982.

Cook & PALMOUR

P.O. Box 370 By: /s/ Bobby Lee Cook

Summerville GA 30747 BoBBY LEE Cook

404/857-3421 ERION, ExuM, MATHIS

& WOOTAN

P.O. Box 6414 By: /s/ James M. Wootan

Macon, GA 31208-6414 JAMES M,. WOOTAN

912/742-0168 Counsel for Defendant

A true and certified copy.

This June 29, 1982.

GIRARD W. HAWKINS, Clerk

U.S. Dist. Court, MD Ga.

By: /s/ Pearl C. Wilkes

Deputy Clerk

A 20

Excerpts of Transcript of Hearing, May 28, 1982

relating to the District Court’s Denial of

Defendant’s Motion to Compel

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal No. 81-5-AMER

UNITED STATES OF AMERICA

vs.

DEWEY T. NABORS

PRESIDING: HONORABLE J. ROBERT ELLIOTT, JUDGE

APPEARANCES

For the Government:

Mr. William Adams

Assistant U.S. Attorney

P.O. Box U

Macon, Georgia 31202

For the Defendant:

Mr. Bobby Lee Cook

Attorney at Law

P.O. Box 370

Summerville, Georgia 30747

Mr. Charles T. Erion

Attorney at Law

163 College Street

Macon, Georgia 31201

A 21

[2] CRIMINAL NUMBER 81-5-AMER, UNITED

STATES OF AMERICA VERSUS DEWEY T.

NABORS, WAS BROUGHT ON FOR MOTIONS ON

MAY 28, 1982 AS FOLLOWS:

THE COURT: We had been requested to have a hear-

ing this morning on a motion or motions filed by the

defendant in the case of United States versus Nabors,

Criminal Number 81-5, the Americus Division. Mr. Erion

is present representing the defendant; Mr. Adams is pres-

ent representing the government. I suppose the first thing

I ought to do, since I haven’t seen it, is read the motion.

That seems reasonble. So I’ll take a moment to do that.

All right. I’ll hear from you, Mr. Erion.

MR. ERION: Your Honor, we have, in addition to the

motion that we recently filed regarding electronic sur-

veillance, I have a couple of other matters I want to take

up with you.

Your Honor, the motion we filed today, as you’ve just

read, addresses the requirements of 18 USC 3504, which

essentially states that if a defendant asserts that he has

been the target of electronic surveillance, the subject of

electronic surveillance by the government and files a

motion to that effect, the government has to either affirm

or deny that that occurred. The case law on the matter

is fairly straightforward. I think one of the leading

cases in the Fifth Circuit arose in this district, [3] United

States versus Tucker, which is at 526 F. Second, 279.

And the Tucker case specifically holds that as to a criminal

defendant in a criminal case, that his claim of surveil-

lance is an assertion that it occurred. It’s sufficient to

trigger requirements of the statute. We have to keep in

mind that the largest majority of these type cases arose

in a Grand Jury context in which the courts were con-

eerned with delaying the ongoing, continuing Grand Jury

investigations. In some of those instances, they required

a stronger claim than that. Tucker also pointed out that

a mere naked claim would not necessarily be enough, al-

A 22

though it did cite with approval the Second Circuit, the

Ninth Circuit and the DC Circuit line of cases.

I would like to cite a couple of those cases to Your

Honor in a moment. What we have .n this situation is

not a mere naked claim. It’s based on factual documents

that are matters of record in the Senate of the United

States and in the United States District Court for the

District of Columbia, that cover the period included

within the indictment and further cover the period that

Mr. Adams has informed us that he is going to try to

establish through prior acts testimony. Now, whether he’ll

be able to get the prior acts in is a question Your Honor

will have to direct at trial, but he’s indicated a possible

intention, attempt to do so.

[4] The DC Circuit, in the case In Re Evans, which was

cited in the Tucker case, stated that in his view when

mere assertion an unlawful wiretapping had been used

against a party, it requires the government to make the

next move and that the next move required a search of

the government’s records to determine if this was the

case. That appears at Page 1247 and in 452 F. Second.

Your Honor, the real crux of this situation is whether

or not there was anything that was possible, there was

anything that could have resulted in the evidence the

government’s going to use in this case, that came from

unlawful electronic surveillance. I think it’s undisputed

in the Senate report and undisputed from the affidavits

filed in the Salisbury case by the Secretary of Defense

and by Mr. Yeates, that the National Security Agency

utilizes electronic surveillance of international telecom-

munications, and they utilized that without any court

order whatsoever. They have very consistently over the

years been very reluctant to explain exactly what they

did. But it seems to be clear that this was done. The

Senate report goes into greater detail about it.

And then, after all that, in 1976 United States Sen-

ate and United States Congress chose to take no action

and put no legislative bounds on it. And, in fact, when

A 238

they passed the Foreign Intelligence Surveillance Act in

[5] 1978, the House of Representatives, in its report—

which appears in House Report 1283—even recognized

that the act did not address this problem; that it did not

protect the rights of United States citizens who made

phone cal!s to foreign countries. And it’s also clear that

in the past the National Security Agency had disseminated

information to federal law enforcement agencies. On

page 743 of the Senate Report, they describe the method

of this being done. It says lists of words and phrases,

including the names of individuals and groups, have long

been used by the National Security Agency to collect in-

formation of intelligence value from intercepted communi-

cations. These lists are referred to as watch lists by

NSA and the agencies requesting intelligence informa-

tion from them such as Federal Bureau of Investigation,

Central Intelligence Agency, Bureau of Narcotics and

Dangerous Drugs, Secret Service and Department of

Defense.

To a certain extent the Senate Report also, Your

Honor, makes clear—and I have to say this up front—

that dissemination to law enforcement agencies was some-

what curtailed in the mid 1970’s, but it also makes it

clear that this is a matter of internal NSA policy, is not

a matter of legislative mandates, and NSA can change

that at anytime internally. It can change it by mandate

of any particular administration in Washington that

thinks [6] that—the Drug Enforcement Administration

or Customs or whoever needs this information. And in

the mid 1970’s, in fact, NSA was feeding a substantial

amount of information to the Bureau of Narcotics and

Dangerous Drugs. The Senate Report makes that clear.

And considered that—for reasons that escape me—as

being foreign intelligence.

We think we have made the necessary showing to in-

dicate that our client may have had conversations inter-

cepted. We think that it is now-—the burden is on the

government to make the required search: if they find

A 24

any such conversation, to determine what use if any was

made of them. The mere assertion of Mr. Adams that he

doesn’t know of anything or even the case agent in this

case, as I read the law, wouldn’t be enough because you

don’t know what filtered down and made its way into the

investigation ultimately. And I was concerned about this

when we started trying to track this down, seeing if it

was continuing in 1980, which we finally were able to

determine. I’m even more concerned now that I’m in-

formed we’re looking over a potential four-year period of

evidence in this thing, from ’76 to ’80 in the case. And

I just find it inconceivable that some of our client’s tele-

phone calls, related to the type activity in the indictment,

were not intercepted. And if that’s the case, the govern-

ment then owes the duty to find those calls and owes the

duty to tell [7] us whether or not any use was made of

them, even if Mr. Adams doesn’t know. I’m sure that

would be his position, that he doesn’t know of anything

like that. It would’ve been my position when I was in

his situation. But the case law presumes that the pros-

ecuting attorney is not going to know about this. That

is quite obvious from requirements of searches. I think

that covers my basic position on this motion, Your Honor.

MR. ADAMS: Your Honor please, let me first point

out that if the Court was to find that the claim made by

Mr. Nabors was sufficient under Section 3504, that there

is, in fact, a procedure by which we can go to the Na-

tional Security Agency and get a response from them.

However, the procedure—called an all agency check—

requires a court order and takes six to eight weeks to be

done. This is what I’m told by the authority, the person

in the Department of Justice who handles these things

from all over the country, which raises or prompts this

observation, and that is the timing of filing of this mo-

tion. It was filed this week. Mr. Nabors was arraigned

here February 17, about three months ago, which

would’ve allowed time to go over—this thing could’ve

been responded to without delaying the trial date, which

A 25

is a week from Monday. It appears to me to be a delay-

ing tactic and fishing expedition. The only position that

I [8] can see that the government can take, to avoid a

continuance of the trial, to allow this check to be done,

is the position that the claim—as made by Mr. Nabors

and Mr. Erion—is insufficient and, therefore, does not

require the government to affirm or deny whether this

alleged surveillance monitoring actually occurred.

The law in the Fifth Circuit, the Tucker case as cited

by Mr. Erion, goes a little bit further than he noted. It

says that an assertion must, at a minimum, be a posi-

tive statement that unlawful surveillance has taken place.

A generalized motion, based on the possibility of such

surveillance, is not a claim, quote, under 3504.

Another Fifth Circuit case, there’s an allegation that

surveillance may have occurred, will not suffice. And

that’s the position of the government, that the claims

here are nothing more than such surveillance may have

happened. It’s pure speculation and conjecture.

Mr. Nabors’ affidavit says nothing more than he made

international phone calls when he discussed, presumably,

drug smuggling, the subject matter of the indictment and

other prior acts that he’s described in his own affidavit.

But that’s all he says. He does not specify dates. He

does not specify places. He does not specify phone num-

bers. If Mr. Nabors called Colombia, South America and

talked to somebody there about setting [9] up a load of

marijuana, I dare say he didn’t use his name. That’s

not the nature of the drug business, and I think the Court

can take judicial notice of that. That’s the way this busi-

ness works. If he did make such a phone conversation

and all we had was his name, there’s no way we can find

it. In other words, his affidavit is just not sufficient it-

self to allow a check to be done. It just lacks specificity

as to every type detail that would be needed.

Mr. Erion’s affidavit, of course, addresses the matter

of the National Security Agency’s policy or past or

maybe present activity concerning monitoring of inter-

A 26

national telephone calls. Based on his obviously well-

done research into the matter, it’s apparent that the Na-

tional Security Agency has, in fact, monitored interna-

tional telephone calls. There’s no suggestion—I don’t

think—that they monitor every single international phone

call made every day. I don’t have any figures for the

Court, but the numbers involved would have to be astro-

nomical. And I don’t know as a practical matter that

there’s any way they could listen in on every phone con-

versation that’s made.

So whether Mr. Nabors’ phone conversations to Colom-

bia, Venezeula and Panama may have been monitored,

as I say, is speculation and conjecture. The odds of that

happening seem to me to be very small. In other words,

he [10] cannot say positively that he has been monitored,

and that under the criteria is what’s necessary. And

since he can’t do that, the claim is insufficient.

The National Security Agency exists, as far as I can

determine, for foreign intelligence purposes. They did

earlier, as Mr. Erion pointed out, have some dissemina-

tion to the predecessor to DEA, but that was terminated

so far as the records show. Under the statute that Mr.

Erion referred to, the Foreign Intelligence Surveillance

Act passed in 1978, of course, defines foreign intelligence,

and clearly this would not cover the drug business. It

also imposes the requirement of minimization, and that is

that there is an obligation on the government not to in-

vade the privacy of U.S. citizens who may be making in-

ternational phone calls in matters unrelated to national

security.

So the government’s position, very simply, is that the

claim, as made, is not sufficient. I suggest to the Court

that, if it is a sufficient claim, then every drug smug-

gler in this country—almost all of them would have to

make international telephone calls—automatically have a

right to force the government to go plundering around in

the National Security Agency, to see what records may

or may not exist. I would suggest that this is not what

\

|

A 27

Congress intended by passing 3504 and is not something

that the Court should impose on the government. [11]

That is the requirement that every drug smuggler merely

has to say he had an international phone call; therefore,

the government must be put to the task of going to the

NSA and other agencies.

I will state further—and Mr. Erion anticipated that

I might say—so far as I know, the evidence in this case

is not derived from any monitoring of any kind. I’ve

talked to every agent involved. I’ve read every report I

could find on Mr. Nabors. So far as I can tell, the

ease derived from observations of his activities in the

acquisition of airplanes and hiring of pilots and prepara-

tion to go to South America and pick up drugs, upon

return getting caught or plan getting seized or whatever.

And I think after the trial of the case, the Court will be

in a better position to see that. But as I say, so far as I

can observe, this motion—which is a novel one—best I

can determine, there’s never been a motion filed stating

a claim in quite the terms that this claim is stated. So

far as I can see, it’s a delaying tactic and fishing expedi-

tion, and we would urge the Court to find that the claim,

as stated, is insufficient and, therefore, does not require

the government to confirm or deny.

MR. ERION: First, I would like to point out one

thing. I recognize this motion is not as early as Mr.

Adams would [12] like, and I also recognize exactly what

he says—as far as I’ve been able to determine, it is

unique.

THE COURT: Is what?

MR. ERION: Is unique. Something like this has not

been filed previously in a criminal case. And all I can

state to the Court about the timing is that I had a very

difficult time filing what I thought to be a good faith

motion showing continuing NSA activity of the type cov-

ered in the Senate Report in the time period covered by

this indictment. That in and of itself, however, Your

A 28

Honor, is not the question. The question, as I view it,

is whether or not the motion is sufficient.

Mr. Adams further said that this thing is speculation,

that it doesn’t specify dates and places and phone num-

bers, and that the affidavit is insufficient of Mr. Nabors,

insufficient to allow the agency to make a check. I gather

what he’s talking about is the mechanics of the check.

And my reply to that, Your Honor, is that that is some-

thing that we’d have to find out from the National Se-

curity Agency, how they have this categorized, whether

they have it by phone number or by dates or by subject

matter of conversations, whether they have it by names.

It would be up to them and their computers to tell us

based on the affidavits. The question is whether or not

there’s enough information in that affidavit to allow the

[18] check. The question is whether or not the check

should be made. If it should be, the National Security

Agency says “we don’t have enough information,” if Mr.

Adams wants to come back to us, we’ll see if we can find

the necessary information. I don’t know what we need.

But the big issue is, is the affidavit sufficient to require

the Court to order the National Security Agency to make

a check. If the agency then comes back and says that’s

an impossibility, we’ll try to find the information. I don’t

know if we can or not.

But I suspect, based on the description of the Senate

Report of the watch lists, that they don’t need phone

numbers. They can go with names; they can go with sub-

ject matter of conversations. *

Mr. Adams further has pointed out that the affidavit

doesn’t say that all the calls were monitored by the Na-

tional Security Agency. Your Honor, the problem we

have there is twofold. In the first place, we don’t know

exactly what the National Security Agency does, other

than as described in the Senate Report. And what the

Senate Report describes, in essence, is that based on the

technology in 1976—and in six years, I think technology

A 29

has progressed even further—that the National Security

Agency monitored all telephone calls on a particular,

what they call communication link; and that the specific

[14] language used here—if I can find it—is it says the

initial interception of a stream of communication is

analogous to a vacuum cleaner. NSA picks up all com-

munications carried over a specific link that it is moni-

toring. The combination of this technology and the use

of words to select communication of interest results in

NSA reviewing the international messages of American

‘itizens and groups and organizations for foreign intel-

ligence.

Now, Your Honor, what they do, when they have a par-

ticular—what they call a link, like a telephone trunk line

apparently, which now is transmitted very often—as

Your Honor is aware—by microwaves internationally,

microwave type communications. They pick those up;

they just take in everything. If I went to Germany and

wanted to call my wife and discuss family business, they

get it. We don’t know which links they’ve got because

they aren’t advertising that. The best we can do is say

we know that they’ve done it in the past. And we know

that they have done this sort of thing in the past. We

know that they have intercepted phone calls to Latin

America and Central America, South America in the

past. We know that the Senate Report covers 1976,

which I know from Mr. Adams is the specific time frame

he intends to introduce evidence about.

Based on everything, I don’t see how we can be any

more [15] specific. And I would point out that the Evans

case, the District of Columbia Circuit case, and the Fifth

Circuit case of Tucker, somewhat addresses this problem.

And it states—I’ll skip some parts. But the relevant

portion says the issue might arise more rarely if we re-

quired a witness—they’re discussing Grand Jury wit-

nesses, Your Honor—to allege in great specificity exactly

what facts underly this belief that electronic surveillance

A 30

took place. The short answer to that suggestion is that

it contradicts unambiguous procedures defined by Con-

gress to resolve this case. The rationale behind this pro-

cedure is apparent and persuasive. By my hypothesis,

electronic surveillance is functioning properly when its

object has no idea that its communications are being

intercepted. If we hold that a witness can make a claim

only when he has found the electronic bugger, heard mys-

terious bleeps on the telephone or write for the files of the

Department of Justice, we would merely succeed in en-

couraging the government to improve its security, as well

as its technology.

Goes cn to say where a witness alleges that private con-

versations have been intercepted, it would be a harsh

rule that predicated his right to suppress the conversa-

tion on his disclosure of the name of the other party,

much less the subject of their conversation. It is hard to

see how a [16] witness could, in many cases, be more

specific about alleged wiretapping.

Your Honor, we think we’ve met the burden in this

case. We think we’re entitled to the search. We think

we're entitled to the very specific reply of the govern-

ment. If they say they cannot make that reply based on

the information we have, we will try to get other infor-

mation. I don’t know whether we can, but we'll try.

That’s the objective.

I frankly, to be honest about this, Your Honor—lI don’t

know what the National Security Agency is going to say

when Mr. Adams goes to them, because they’ve been real

reluctant in the past to reveal anything about their proce-

dures. And Mr. Adams says every drug smuggler could

do this. My only reply to that, Your Honor, is the Con-

gress provided for it, the Constitution provides for it, as

interpreted by Congress Reports. And if Congress had

wanted to prevent this sort of thing being done, they

could have done that. They reviewed this agency’s ac-

tivities in ’76. They passed the Foreign Intelligence Sur-

veillance Act in 1978. They could’ve treated National

Security Agency information just as they have the

A 31

Treasury Department’s registration of automatic weap-

ons and sawed-off shotguns and gambling tax informa-

tion and limited its dissemination. Congress chose not to

do that. They left the hole there. And if they chose to

do that in the interest of national [17] security and

leave the hole there, there’s nothing that I can do about

it or Mr. Adams or the Court. We might all wish it was

different, but it’s not.

That, I think, completes what I have to say on that,

Your Honor.

THE COURT: All right. I want to get something

back in my mind like I remember it and see if there’s

any difference of opinion or difference of recollection

about it.

This case—the defendant appeared here in February

17, I believe it was, with counsel and entered his plea

of not guilty. And at that time a large number of mo-

tions were filed by his counsel, motions for discovery of

this and that, motion to bill of particulars, the usual

run of motions and maybe some that are not the usual

run. I don’t know. And this being an American Division

case, there was some discussion about whether the counsel

wanted the case tried in Americus or whether they just

as soon have it tried in Columbus. And that necessarily

brought up the question about time for trial. And when

I left the bench, counsel had indicated to the Court that

they wanted to discuss it with their client, as I recall it,

and to see if their client had any preference about in

which division he was to be tried. And after I left the

bench and had gone to my chambers, counsel for the

defendant and counse) for the government came and

talked to [18] me about it. And counsel for defendant

stated that he’d prefer the case to be tried in Columbus

Division, or was agreeable to it. I don’t remember

whether he said preferred. But anyway, it was all

agreed.

And so that put us in a position to do some definite

scheduling. And at that time it was agreed between the

Court and counsel that the case would be given a special

A 32

setting for June 7, 1982 here in Columbus. And at that

time I stated that, since we were getting a special set-

ting for that time, everybody would have that in mind,

that I wanted to be infurmed without undue delay about

whether it was going to be necessary for the Court to

have a hearing on any of these motions that had been

filed, because I didn’t want pending motions to result in

delay of the trial. And it was understood that that would

be done. And I had suggested that if any additional

motions. would be filed, that they be filed promptly so

that all of them could be heard well in advance of the

date of trial. That’s my recollection of the general con-

versation that we had.

Now, here we are with the case scheduled—your hav-

ing been given a special setting, scheduled for trial, for

June 7—here we are on May 28 talking about this mo-

tion that was just filed—well, it indicates it was filed

on May 25, earlier this week. And, obviously, if the

Court should grant this motion, it would automatically

mean [19] this case would have to be put off—I don’t

know how long; obviously a considerable time, because if

there’s anything like the monitoring that Mr. Erion sug-

gests, it would require somebody to spend a lot of time

trying to find out if this man has been monitored.

What I’m getting at is if a motion of this kind was

going to be filed, I think it should’ve been filed sometime

ago. If it wasn’t filed at the same time all the other

motions were filed, it should’ve been filed within a rea-

sonable time thereafter. So I’m going to deny the motion

on two grounds. One is that I don’t think the showing

made by the defendant is adequate to require the grant

of the motion. And the other ground is that I think the

motion simply comes too late, as a practical matter. If

he could file it in the last week in May, when he’s suppose

to go to trial on June 7, and delay the thing for a couple

of months, no way we could ever get a case to trial with

any assurance, if motions like this could be filed that

would require weeks of research and all that, on the

eve of a trial. In other words, this is different from

A 33

just some routine motion that might be filed a few days

before trial, demanding that the government produce

some document that’s in the government’s file or that the

government—well, just routine motions. This is some-

thing obviously that would require a lot of time for

search and [20] would necessarily result in delay. I’m

not suggesting now that Mr. Erion has deliberately done

that—move over one way or the other, so I can see Mr.

Erion. I’m not suggesting that Mr. Erion has deliberately

done that, that he’s held it back deliberately. I’m not

suggesting that. But I’m suggesting that is the effect.

In other words, I just don’t think the motion comes in

sufficient time before the definite setting of the case for

trial, and neither do I think that the showing is ade-

quate. So I deny the motion.

All right. What else do we have?

MR. ERION: Your Honor, I would like to point out

one thing for the record based on your suggestion of

untimeliness. We have no objection to proceeding to trial

and still requiring the check. If they turn something up,

it could be addressed after trial.

THE COURT: Ididn’t get the last.

MR. ERION: We would have no objection to proceed-

ing to trial, and we’re not trying to get a delay. Proceed

to trial and have the check done; if it turns something

up, we can take it up at that point in time afterward.

But if Your Honor thinks it’s insufficient, Your Honor

thinks it’s insufficient. I just want to indicate that I

think there is a way around the lack of timeliness.

THE COURT: Well, if Mr. Adams wants to have

somebody make a [21] search and see what it turns up

after the trial is over and so on, of course, that’s his

business.

MR. ERION: I don’t think he’s going to have any-

body do anything unless Your Honor orders him to.

THE COURT: In these circumstances, I’m not going

to order it.

A 34

Motion to Compel the Government to Affirm or Deny the

Existence of Electronic or Other Wiretap Interceptions

and to Suppress the Fruits Thereof

May 24, 1982

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal No. 81-5-AMER

UNITED STATES OF AMERICA

Vv.

DEWEY T. NABORS, JR.

4

“@

MOTION TO COMPEL THE GOVERNMENT TO AF-

FIRM OR DENY THE EXISTENCE OF ELEC-

TRONIC OR OTHER WIRETAP INTERCEPTIONS

AND TO SUPPRESS THE FRUITS THEREOF

Pursuant to 18 U.S.C. § 3504 and the attached Affi-

davits of Defendant Nabors and his undersigned counsel,

Defendant makes the above-captioned motion to have the

Government affirm or deny whether interceptions of the

type described occurred and for the Court to suppress

the fruits thereof, if any, and for cause shows the fol-

lowing:

1.

Defendant Nabors has described, under oath, a num-

ber of international telecommunications between himself

and persons located in Central and South America in

A 35

which matters related to the trial of this case were dis-

cussed.

2.

As the attached Affidavit of counsel reveals, the Gov-

ernment by and through its National Security Agency,

routinely intercepts international telephone traffic, in-

cidentally monitoring U.S. citizens, the results of which

interceptions have in the past been disseminated to

United States law enforcement agencies. The National

Security Agency maintains records of such intercepted

products.

3

Pursuant to 18 U.S.C. § 3504, the Government must

now affirm or deny whether such interceptions occurred

and, if such interceptions occurred, produce the fruits

thereof for this Court.

4.

Several controlling legal principles should be noted

with respect to the herein motion:

‘a. The Government’s denial must be explicit and com-

prehensive of the claims made. Beverly v. United States,

468 F.2d 732 (5th Cir. 1972).

b. The denial must be unambiguous and unequivocal:

denials of electronic surveillance “to my knowledge” are

insufficient. United States v. Alter, 482 F.2d 1016, 1027

(9th Cir. 1973); United States v. Vielguth, 502 F.2d

1257, 1261 (9th Cir. 1974).

c. The denial must be under oath. Korman v. United

States, 486 F.2d 926, 931 (7th Cir. 1973).

d. Any denial must also explicitly state that the per-

tinent agency which claimedly conducted the surveillance

has done a comprehensive check of its records. See, In

Re Quinn, 525 F.2d 222, 225, 226 (1st Cir. 1975). An

assertion by the Government attorney is insufficient.

See, In Re Tierney, 465 F.2d 806 (5th Cir. 1972).

A 36

WHEREFORE, Defendant prays that the Court enter

an Order requiring that the Government makes inquiry

of the National Security Agency and any law enforce-

ment agencies to which it disseminates information as to

whether or not interceptions of the telephone communi-

cations of this Defendant occurred, and, if any such in-

terceptions did occur, that the Court make inquiry as to

the fruits thereof and suppress said conversations and

any such fruits.

Respectfully submitted, this 24th day of May, 1982.

/s/ Charles T. Erion

CHARLES T. ERION

Attorney for Defendant

Erion, Exum, Mathis & Wootan

Attorneys at Law

909 Fulton Federal Building

Post Office Box 6414

Macon, Georgia 31208-6414

(912) 742-0168

A 37

Affidavit of Charles T. Erion, Counsel for Defendant

Dewey T. Nabors, Jr., in Support of Motion to Compel

May 24, 1982

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal No. 81-5-AMER

UNITED STATES OF AMERICA

Vv.

DEWry T. NABORS, JR.

AFFIDAVIT OF CHARLES T. ERION

I am of counsel for defendant Dewey T. Nabors, Jr. in

the captioned case:

Be

I have reviewed portions of the following U.S. Govern-

ment publication: Supplementary Detailed Staff Reports

on Intelligence Activities and the Rights of Americans,

Book III, Final Report of the Select Committee to Study

Governmental Operations with Respect to Intelligence

Activities, United States Senate, 94th Congress, 2nd

Sess., Peport No. 94-755 (1976), especially that portion

entitled “National Security Agency Surveillance Affect-

ing Americans”, pp. 733-783.

That portion discloses as follows:

a. The National Security Agency (NSA) is author-

ized to systematically conduct covert electronic surveil-

A 38

lance of telephone communications between the United

States and foreign countries (pp. 736-737).

b. This intercept activity includes the surreptitous

monitoring of telephone conversations between the United

States and foreign countries and “. . . selection criteria

are used which result in NSA’s reviewing many commu-

nications to, from, or about an American. NSA picks up

all communications carried over a specific link that it is

monitoring. The combination of this technology and the

use of words to select communications of interest results

in NSA analysts revie ving the international messages of

American citizens...” (p. 741)

c. NSA has in the past so intercepted such communica-

tions with South American countries and made dissemi-

nation to law enforcement agencies, including the Bureau

of Narcotics and Dangerous Drugs (predecessor to the

Drug Enforcement Administration).

d. Until being purged, records are maintained of this

intercept material, but without serialization or number,

and without record in other places within the agency’s

permanent files. (p. 748)

2.

I have also reviewed a document known as Affidavit of

Eugene F. Yeates, who is the Chief, Office of Policy of

the National Security Agency, and a document known as

Affidavit and Claim of Privilege of the Secretary of De-

fense, signed by Harold Brown, Secretary of Defense.

These documents were subscribed by the affiants in June

and July, respectively, of 1980, and were filed in the

United States District Court of the District of Columbia

in the case of Harrison E. Salisbury v. United States of

America, National Security Agency, and Harold Brown,

Civil Action no. 80-0900, U.S.D.C., Dist. Col. These docu-

ments disclose the following:

a. NSA continues to intercept international electronic

communications which either originate or terminate in

A 39

the United States, including communications utilizing the

facilities of international communications common car-

riers passed in part by wire (i.e. telephone communica-

tions).

b. The information obtained from these interceptions

is reported “to various agencies of the Government in

response to their approved requirements for foreign in-

telligence.” (Brown) In this regard it is to be noted that

the above mentioned Senate Report indicates that NSA

has, on occasion in the past, felt that the international

aspect of drug trafficking was “sufficient justification for

classifying ‘he activity as part of its ‘foreign intelligence’

mission.” Yynile such interpretation by NSA terminated

in the mid 1970’s, the procedure of the agency is subject

to change by internal NSA directives. (Senate Report,

pp. 742, 755-756) See also: H.R. Rep. 1283, Part. I,

95th Cong., 2nd Sess., 50-51 (1978).

“

.

¢. . it necessarily occurs that some circuits, which

have either a foreign origin or terminus or both and

which are known to carry foreign communications neces-

sary for foreign intelligence, will also carry personal

communications of US persons.” While the Government

purportedly attempts to minimize the interception of un-

wanted messages, “. . . many unwanted messages are

potentially available for selection.” Once NSA decides to

monitor the traffic on a particular circuit, it appears that

al] such traffic is monitored and “. . . there is no way

to avoid interception of some private communications

carried over monitored links.” (Brown)

On Friday, May 14, 1982, Assistant United States

Attorney William P. Adams, who affiant understands is

of counsel for the Government in the above-referenced

criminal case, informed affiant that the Government had

information related to the Defendant Nabors (which in-

formation it might introduce into evidence in the trial

A 40

of this case) regarding alleged drug smuggling activities

of the defendant for “the past six years,” thereby indi-

cating to affiant that the Government had been assimi-

lating information on this Defendant which would in-

clude the time frame covered not only by the present

indictment and the affidavits of Messrs. Brown and

Yeates, but also the specific time frame encompassed

within the above-mentioned Senate Report.

Dated: This 24th day of May, 1982.

/s/ Charles T. Erion

CHARLES T. ERION

Attorney for Defendant

Sworn to and subscribed before me this 24th day of

May, 1982.

/s/ Kathy C. Harkins

Notary Public

Notary Public, Bibb Co., Ga.

My commission expires May 11, 1985

A4l1

Affidavit of Dewey T. Nabors, Jr., Defendant

in Support of Motion to Compel

May 24, 1982

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal No. 81-5-AMER

UNITED STATES OF AMERICA

¥,

DEWEY T. NABORS, JR.

AFFIDAVIT OF DEWEY T. NABORS, JR.

I, DEWEY T. NABORS, JR., state and declare:

That I am the defendant in the above-entitled action;

That I make this declaration on my own behalf, in

support of my motion to compel the Government to affirm

or deny the existence of electronic or other wiretap in-

formation which it intercepted, involving telephone con-

versations between myself and persons located within

Central and South America;

That between and including the years 1976 and 1980

I have been a party to numerous telephone calls from

the United States of America to persons speaking from

telephones located within the nations of Colombia, Vene-

zuela, and Panama;

That certain of those telephone calls related to the

activities which are the subject matter of the indictment

A 42

against me in the present case and to other similar prior

activities ;

That I am informed and believe, and thereupon allege,

that it is the policy of the United States of America to

monitor a considerable portion—if not all—of the tele-

phone traffic between the United States and foreign coun-

tries;

That based thereon, I am informed and believe, and

thereon allege, that some or all of my aforementioned

telephone conversations with persons located in Central

and South America, were, in all likelihood, intercepted by

the United States.of America;

That I therefore request that this Court enter an

Order compelling the United States of America to affirm

or deny that it has intercepted any such telephone con-

versations to which I was a party; in the event any such

conversations have been intercepted that this Court make

appropriate inquiry determining whether any evidence

which the Government intends to introduce in the prose-

cution of this case was a fruit of any such interception

and, if so, that this Court enter an Order suppressing

any such conversations and the fruit thereof as evidence.

I declare under penalty of perjury that the foregoing

is true and correct, except as to those matters stated on

information and belief, and as to those matters I believe

them to be true.

Dated: This 24th day of May, 1982.

/s/ Dewey T. Nabors, Jr.

DEWEY T. NABORS, JR.

Sworn to and subscribed before me this 24th day of

May, 1982.

/s/ Kathy C. Harkins

Notary Public

Notary Public, Bibb Co., Ga.

My commission expires May 11, 1985

A 43

Excerpts of Trial, June 7, 1982, relating to the

District Court’s Ruling Admitting the Prior Acts

Testimony of Michael David Warner

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal No. 81-5-AMER

UNITED STATES OF AMERICA

vs.

DEWEY T. NABORS, JR.

PRESIDING: HONORABLE J. ROBERT ELLIOTT, JUDGE

APPEARANCES

For the Government:

Mr. William Adams

Assistant U.S. Attorney

P.O. Box U

Macon, Georgia 31202

For the Defendant:

Mr. Bobby Lee Cook

Attorney at Law

P.O. Box 370

Summerville, Georgia 30747

Mr. Charles T. Erion

Attorney at Law

163 College Street

Macon, Georgia 31201

[42] (BRIEF RECESS)

(JURY OUT)

THE COURT: You stated you had something you

wanted to take up before the jury was brought back.

MR. COOK: Yes, Your Honor. We have been ad-

vised by Mr. Adams, counsel for the government, that

he intends to offer evidence of prior acts or other crimes

under the purview of Rule 404-B. He has told us what

that is. We, frankly, seriously question the admissibility

of other crimes evidenced within the context of the fac-

tual setting of this case. We would kindly ask that some

ruling be made [43] outside of the hearing and the pres-

ence of the jury on the other crimes evidence and that a

proffer be made, briefly if possible, where the Court and

counsel for the defendant can interpose an appropriate

objection.

[47] MR. ADAMS: * * * On the similar acts evi-

dence, briefly, Your Honor, what we propose to show is

that Mike Warner met Dewey Nabors in 1975 through

their common interest in the aviation business. They flew

together, so forth, and ultimately the subject of flying a

load of marijuana came up in late 75. And Mr. Warner

went to the Bahamas, in fact, at Mr. Nabors’ request, to

look for a place to keep fuel there, a stopping over point

to bring in marijuana. That thereafter Mr. Warner flew

a load of marijuana into Smithville, Georgia on Janu-

ary 13, 1976; that prior to that trip he had had con-

versations with Mr. Nabors about the landing strip that

was to be used to bring in that load of marijuana. And

we have a tape recording of a telephone conversation be-

tween Mr. Nabors and Mr. Warner, where they talk

about the strip that they will look at to bring this load

in. And, in fact, the load did come in on January 13,

1976.

Thereafter, Mr. Nabors’acquired an airplane through a

corporation formed for him by Mr. Roger Land. This

A 45

airplane was an A-26 bomber. He acquired it in Febru-

ary of 1976. He gets the airplane and gets Mike Warner

to be his [48] pilot, exactly what we have here. And Mr.

Warner, in fact, agreed to fly for him and flew a load

that was brought in from Colombia, South America to

Sylvester, Georgia. The plane was then moved over to

Cordele, Georgia, where it was seized by authorities with

some marijuana residue.

So we expect the evidence to show that then Mr. War-

ner flew another load of marijuana in May, where he got

caught and was convicted in Federal Court and went off

to prison. And that thereafter he gets out in about No-

vember or December, 1979, and shortly thereafter he

hears from Dewey Nabors, who’s in the process of getting

an airplane and needs.a pilot. Warner, an old smuggling

buddy who’s out of jail, needs some money, and then they

make a deal that lead to this case.

Now, under the law, a recent Fifth Circuit case says

that a mere not guilty plea to a conspiracy count renders

the defendant’s intent a material issue. That’s the Rob-

erts case, an issue that had been reserved for a period of

time. But they now say just a mere not guilty plea is all

I need to argue to the Court that intent is an issue. And

if intent is an issue, then we go to 404-B. I’m not offering

this evidence to show Mr. Nabors is a bad guy. I’m of-

fering it to show the points under 404-B—intent, plan,

preparation, absence of mistake or accident, several oth-

ers under that 404-B.

[49] And under the Beacham [sic] case, which is the in

bank [sic] opinion, the law in the Fifth Circuit, a two-

pronged test. One is relevance, and intent is an issue. So

we submit the prior acts are relevant, and its probative

value is not outweighed by undue prejudice. There’s

some need by the government to offer this, which we sub-

mit without this evidence—we submit there is a need for

the government's case to have this.

The only point I can see that ts a problem per-

haps is remoteness in time. ’s four years differ-

A 46

ence. But I found one case where three years was not

considered a problem. And I found another case in the

Second Circuit, Your Honor, which is right on point. It’s

not just a matter of 404-B evidence. What we've got is

a pilot who flew this load was the same pilot involved

with him before. And that testimony of his prior contact

and dealings with this defendant is offered to show the

basis of the conspiracy that’s in this indictment, the ac-

tivity here. And there’s a Second Circuit case, Mag-

nana”, 543, 431, where the guy dealt with the folks, went

off to prison; seven years later he gets out of prison, gets

back with the same folks, ends up testifying against

them. And the Second Circuit said it was okay for him

to testify about his activity seven years earlier with

those same folks to show background of conspiracy.

[50] So with that and the substantial similarity, which

is the key point, we contend that this evidence is very

admissible under 404-B, and we propose to offer it sub-

ject to the Court’s ruling.

THE COURT: I don’t have any problem with that

myself. I would intend to admit that type of evidence. I

dealt with this same question recently, it just happens, in

another Americus Division case. And the research I’ve

done on it makes that type of evidence clearly admissible.

MR. COOK: We would clearly ask that—at this point

in time, since Your Honor has ruled that prior acts is

admissible—that limiting instructions be given at the

time that it is received.

THE COURT: Yes. In other words, the fact that a

defendant may have done something at one time is not

proof he did it this time.

MR. COOK: That is exactly right.

THE COURT: I understand.

MR. COOK: Moreover, with reference to—

THE COURT: Now, if I forget to do that, you re-

mind me of it. I intend to remember to do it.

MR. COOK: Yes, sir.

A 47

Excerpts of Transcript of Trial, June 7, 1982, relating to

the District Court’s Ruling Admitting Evidence

of Defendant’s Pre-Arrest Silence

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal! No. 81-5-AMER

UNITED STATES OF AMERICA

vs.

DEWEY T. NABORS, JR.

PRESIDING: HONORABLE J. ROBERT ELLIOTT, JUDGE

APPEARANCES

For the Government:

Mr. William Adams

istant U.S. Attorney

P.O. Box U

Macon, Georgia 31202

For the Defendant:

Mr. Bobby Lee Cook

Attorney at Law

P.O. Box 370

Summerville, Georgia 30747

Mr. Charles T. Erion

Attorney at Law

163 College Street

Macon, Georgia 31201

A 48

[175] (BRIEF RECESS)

(JURY OUT)

THE COURT: All right. Now, it was understood

that you would get into the record what you wanted to

get into the record about that testimony about the insur-

ance. You can do that now.

MR. COOK: Thank you, Your Honor.

Mr. Adams was kind enough to alert us to the proposi-

tion that he was’about to offer certain evidence from the

government witness Marshall Dean and Peggy Drane.

At that time we approached the bench, and it was agreed

that the witnesses could go ahead and testify. The Court

indicated that you were going to overrule the objection,

giving us the express permission..o insert our total ob-

jection into the record at this time, in order that we

might not get into a waiver situation. And we would

proceed to do that promptly.

[176] We strenuously object to the testimony of Mar-

shall Dean and Peggy Drane, as well as Government Ex-

hibit 7-A and Exhibit—well, 7-A is a collective exhibits—

and 7-B for the reason that the defendant in this case

has not taken the stand and has not offered any explana-

tion or alibi. He has not said anything in this case thus

far. And for the government to be allowed to show that

a letter was written by an insurance company with ref-

erence to the loss on this airplane, calling upon him to

file a proof of loss and to make a sworn statement in

connection with the loss, when this airplane was allegedly

hauling marijuana and other contraband, is tantamount

to permitting the government to show since he did not file

a proof of loss, since he did not file a claim, and since he

did not come forward and cooperate within the meaning

of the policy, the government seeks to draw an inference

from that—and certainty will argue—that it constitutes

an indicia of guilt in this case.

A 49

We say that [this] is in violation of the Self-Incrimi-

nation Clause, as well as the Fundamental Fairness Rule,

as expressed in the Due Process Clause of the Fifth

Amendment.

There is a recent case, a Supreme Court case, which

says—and the name of it escapes me at the moment; I

could find it very quickly. In which the court makes a

[177] distinction between pre-arrest silence and post-

arrest silence. But the distinction which is made is made

within the context there. The defendant, as I recall, ac-

tually took the stand and testified to something, made an

explanation of something which he had failed to make an

explanation of in a pre-arrest situation. But we think

that this evidence, within the manner in which it was in-

troduced, and the posture of the trial being such as it is,

and the defendant not having testified—nor will the de

fendant testify in this case—that it is highly improper;

that it is prejudicial; and that it is tantamount to de-

priving this defendant of a fair trial.

THE COURT: All right. Well, as I previously indi-

cated, it was my thought that it was admissible. So that’s

my ruling.

A 50

Indictment of Grand Jury in the United States District Court

for the Middle District of Georgia

December 2, 1981

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF GEORGIA

AMERICUS DIVISION

Criminal No. 81-5-AMER

UNITED STATES OF AMERICA

V.

DEWEY T. NABORS, JR.

THE GRAND JURY CHARGES:

COUNT ONE

That from on or about the Ist day of January, 1980,

to on or about the 13th day of April, 1980, in the Ameri-

cus Division of the Middle District of Georgia, and else-

where, DEWEY T. NABORS, JR; did wilfully and

knowingly combine, conspire, confederate, and agree with

others to knowingly and intentionally import marijuana,

a Schedule I non-narcotic controlled substance, and

methaqualone, a Schedule II controlled substance, into the

customs territory of the United States from Columbia

[sic], South America, a place outside such territory; all

in violation of Title 21, United States Code, Section 963

i/c/w Title 21, United States Code, Sections 952 and 960.

COUNT TWO

That from on or about the Ist day of January, 1980, to

on or about the 13th day of April, 1980, in the Americus

Division of the Middle District of Georgia, and elsewhere,

be

A5l

DEWEY T. NABORS, JR., did wilfully and knowingly

combine, conspire, confederate, and agree with others to

knowingly and intentionally possess with intent to dis-

tribute marijuana, a Schedule I non-narcotic controlled

substance, and methaqualone, a Schedule II controlled

substance; all in violation of Title 21, United States Code,

Section 846 i/c/w Title 21, United States Code, Section

841(a) (1).

COUNT THREE

That on or about the 13th day of April, 1980, in the

Americus Division of the Middle District of Georgia,

DEWEY T. NABORS, JR., knowingly and intentionally

did import at least twenty-three pounds of marijuana, a

Schedule I non-narcotic controlled substance, into the cus-

toms territory of the United States from Columbia [sic],

South America, a place outside such territory; in viola-

tion of Title 21, United States Code, Section 952(a), and

Title 18, United States Code, Section 2.

COUNT FOUR

That on or about the 13th day of April, 1980, in the

Americus Division of the Middle District of Georgia,

DEWEY T. NABORS, JR., knowingly and intentionally

did import at least twenty pounds of methaqualone, a

Schedule II controlled substance, into the customs terri-

tory of the United States from Columbia [sic], South

America, a place outside such territory; in violation of

Title 21, United States Code, Section 952(a), and Title

18, United States Code, Section 2.

COUNT FIVE

That on or about the 13th day of April, 1980, in the

Americus Division of the Middle District of Georgia,

DEWEY T. NABORS, JR., knowingly and intentionally

did possess with intent to distribute at least twenty-three

pounds of marijuana, a Schedule I non-narcotic controlled

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

A 52

Section 841(a)(1), and Title 18, United States Code,

Section 2.

COUNT SIX

That on or about the 13th day of April, 1980, in the

Americus Division of the Middle District of Georgia,

DEWEY T. NABORS, JR., knowingly and intentionally

did possess with intent to distribute at least twenty

pounds of methaqualone, a Schedule II controlled sub-

stance; in violation of Title 21, United States Code, Sec-

tion 841(a)(1), and Title 18, United States Code, Sec-

tion 2.

A TRUE BILL.

/s/ P. Balfour Hunnicutt

Foreman of the Grand Jury

/s/ William P. Adams

Assistant United States Attorney