# Petition — Nabors v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1021

## Text

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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A34 .

A 37

A 41

A 43

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0547%3A1. Public record. Not legal advice.