Petition — Martinez v. Smith

NOV 21 1983

83-84. |

RK

IN THE a

Supreme Court of Che United States

OCTOBER TERM, 1983

IGNACIO DELEON MARTINEZ,

JESUS CHAVARRIA GARCIA,

Petitioners,

Vv.

UNITED STATES ATTORNEY GENERAL

WILLIAM FRENCH SMITH ET AL

UNITED STATES OF AMERICA

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ANTHONY J. SADBERRY

Counsel of Record

5005 Woodway

P.O. Box 2482

Houston, Texas 77252

(713) 871-1185

Cuarces J. SULLIVAN

5005 Woodway

P.O. Box 2482

Houston, Texas 77252

(713) 871-1184

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Fifth Circuit exceeded its appellate jurisdic-

tion under 28 U.S.C. § 1291 in deciding disputed questions of

fact and law as to the status of the Petitioners as fugitives from

justice and concurrently dismissing the Petitioners’ appeals on

the grounds that the Petitioners were fugitives from justice

within the contemplation of Molinaro v. New Jersey, 396 U.S.

365 (1970)?

2. Whether the Fifth Amendment due process and Sixth

Amendment trial and confrontation rights of the Petitioners

were violated when the Fifth Circuit dismissed the Petitioners’

appeals under the rationale of Molinaro v. New Jersey, 396 U.S.

365 (1970) without a hearing on the issue as to whether the

Petitioners were fugitives from justice?

3. Whether the Fifth Circuit’s dismissal upon motion by the

United States of the Petitioners’ appeals under the rationale of

Molinaro v. New Jersey, 396 U.S. 365 (1970), violated the

principles of an equitable and just disposition of issues mandated

by Krippendorf v. Hyde, 110 U.S. 276 (1884) and Precision

Instrument Mfg. Co. v. Automatic Machine Co., 324 U.S. 806

(1945), when the dismissal of the Petitioners’ appeals, involving

a challenge to the United States’ constitutionally impermissive

description of the Petitioners in accusatory pleadings in criminal

cases as unindicted/uncharged participants in a bribery scheme,

allowed the wrongdoings of the United States to remain

unredressed and unpunished?

TABLE OF CONTENTS

PAGE

nD CC fost e 0 oe ewer ee i

I oe S.Ct ods sn kas bo dcewans ii

SEE ar a ai aa RN iii

SS Se ee a a nC 2

ee Fe et ee 5

ks. vee secenekan 5

Reasons for Allowing the Writ.................... 9

Re «oy rds iss ais oc un cn Vad wale a 1]

Cer pees brit 64 aM aed ask Chand ¢ wee alate 24

ee

TABLE OF AUTHORITIES

PAGE

Allen v. State of Georgia, 166 U.S. 138 (1897) ..... 15

Application of Jordan, 439 F.Supp. 199 (S.D. W. Va.

PETE nanks chan soa eesseeenae PSA Pee ee

Bohanan v. Nebraska, 125 U.S. 692 (1887)......... 15

Broadway v. City of Montgomery, Alabama, 530

Pe Gre Ge Ss PTD 6 a « oq anebeeeaee ie anes 17

Conforte v. Commissioner, ..... jf Peer ES

Sel, I awa 02s a baad haat en Vokes ncn 18

Donnell v. United Siates, 229 F.2d 560 (Sth Cir.

PR Steet umew serene runt a ame eee ies ee 3s [2.43

Doyle v. United States Department of Justice, 494

F.Supp. 842 (D.D.C. 1980), aff'd 668 F.2d 1365

(D.D.C. 1981), cert. denied, 455 U.S. 1002 (1982) . 17

In re Smith, 656 F.2d 1101 (Sth Cir. 1981) ......... 9, 16

Keystone Driller Co. v. General Excavator Co., 290

RE ee at eee. coh oo oi wawiheesceteetorwesss 10

Krippendorf v. Hyde, 110 U.S. 276 (1884) .......... i, 10, 22

Molinaro v. New Jersey, 396 U.S. 365

CORO 8 pkvccs causa i, 10, 11, 14, 15, 17, i8, 21, 22, 23

Precision Instrument Mfg. Co. v. Automatic Machine

Gk, BGS Ch PN 9 6 vc seeaaedelbedejgeeces i, 10

Ruetz v. Lash, 500 F.2d 1225 (7th Cir. 1974)....... 12, 13

Smith v. United States, 94 U.S. 97 (1876) ......... 15

United States v. Briggs, 514 F.2d 794 (Sth Cir. 1975) 9, 16

United States v. Chadwick, 556 F.2d 450 (9th Cir.

ED oa i6c nena 4pd eae ea ebnne Aas whit tavc 9, 16

United States v. U.S. Commanding Officer of ike

Office of the #rovost Marshall, U.S. Army, 496

is os al wala pee ead 17

iv

PAGE

United States v. Dimas Campos-Serrano, 404 U.S.

1 | PRINCESS tears rare ois s os Seen 15

United States v. First National City Bank, 568 F.2d

eS OPO ra cack aaakaescascs'en css 12, 13

United States v. Martin, 273 F.2d 344 (2nd Cir.

US ager sce SO Mab aie an Ai Aen Nee 12

Onited States v. Press, 401 F.2d 499 (3rd Cir. 1968). 12, 13

United States v. Shelton, 482 F.2d 848 (Sth Cir.

1973), cert. denied, 414 U.S. 1075............... 17

CONSTITUTIONAL PROVISIONS

CL Rs Ne voce Seer acsecaes 5, 10, 14

U.S. CONST. amend. V.......... i, 5, 10, 13, 14, 15, 19, 21

U.S. CONST. amend VI.......... i, 5, 10, 13, 14, 15, 19, 21

STATUTES

I) ns ea cogmc hes cacduecy Gees 7

I nc hws aus i, 5, 7, 10, 11

ne Sade Si aid weaned k 2

ee caceV ou cusses tekesieek ec paees 5

MISCELLANEOUS

| Title 9 of the UNITED STATES ATTORNEY'S

EI ROE 2G ckk awe catedartecccecnc 5, 9, 16

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

IGNACIO DELEON MARTINEZ,

Jesus CHAVARRIA GARCIA,

Petitioners,

N.

UNITED STATES ATTORNEY GENERAL

WILLIAM FRENCH SMITH ET AL

UNITED STATES OF AMERICA

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Petitioners respectfully pray that a writ of certiorari be

issued to review the order dismissing the Petitioners’ consoli-

dated appeals' to the United States Court of Appeals for the

Fifth Circuit entered in such proceedings on June 16, 1983.

' The parties and the style of the cases on consolidated appeal to the

Fifth Circuit are shown below:

No. 83-2007

IGNACIO DELEON MARTINEZ, Applicant-Appellant

Jesus CHAVARRIA, Applicant-Appellant

CRAWFORD ENTERPRISES, INC., Defendants

Vv.

UNITED STATES OF AMERICA, Plaintiff-Appellee

2

JURISDICTION

An opinion was not rendered by the United States Court of

Appeals for the Fifth Circuit in respect to the dismissal of the

consolidated appeals. A copy of the Order Dismissing the

Appeals and the Order Denying the Petition for Rehearing and

Denying the Suggestion for Rehearing En Banc is found in the

Appendix at pages 24 through 26.

The order dismissing the Petitioners’ appeals was entered on

June 16, 1983. A timely motion for Panel Reconsideration and a

timely Suggestion for Rehearing En Banc were denied on

August 22, 1983. The Petition for a Writ of Certiorari has been

filed within 90 days plus the one day Sunday enlargement, as

provided by 28 U.S.C. § 2101(c).

This Court's jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

No. 83-2008

IGNACIO DELEON MARTINEZ AND

Jesus CHAVARRIA, Applicants-Appellants

Ruston Gas Tursines, INC., Defendant

Vv.

UNITED STATES OF AMERICA, Plaintiff-Appellee

No. 83-2045

IGNACIO DELEON MARTINEZ, Plaintiff-Appellant

Jesus CHAVARRIA, /ntervenor-Appellant

v

WILLIAM FRENCH SMITH, RUDOLPH W. GIULIANI,

KENNETH A. Caruso, D. Lowe._t JENSEN, ROBERT W. OGREN,

ROGER M. OLSEN, WILLIAM F. PENT ®RGAST,

BARBARA E. Nicastro, Defendants-Appellees

No. 83-2060

IGNACIO DELEON MARTINEZ, AND

Jesus CHAVARRIA, Applicants-Appellants

INTERNATIONAL HARVESTER COMPANY, Defendant

Vv.

UNITED STATES OF AMERICA, Plaintiff-Appellee

3

The Petitioners were parties in each of the four cases on

appeal to the United States Court of Appeals for the Fifth Cir-

cuit. Each of the actions undertaken by the Petitioners in the

District Court were civil in nature, for the Petitioners had not

been charged with the commission of any crime. The primary

issue in each of the cases on appeal involved the question

whether the Petitioners as unindicted/uncharged persons named

as participants in an alleged bribery scheme could have their

names and identification by job title expunged from the:

1) Indictment filed in United States of America v.

Crawford Enterprises, et al Cr. No. H-82-224 (S.D.

Tex) — hereinafter referred to as the “Crawford” case;

2) Anformation and offer of proof filed in United States of

America Vv. Ruston Gas Turbines, Inc., Cr. No. H-82-

207 (S.D. Tex); and

3) Information and offer of proof filed in United States of

America V. International Harvester Company, Cr. No.

H-82-244, (S.D. Tex.) hereinafter referred to as the

“Harvester” case;

The expungement application in the Crawford case had been

preceded by an injunction/declaratory judgment action filed on

October 21, 1982 by Petitioner Ignacio DeLeon Martinez

(“DeLeon”) in the civil docket of the District Court for the

Southern District of Texas under the style /gnacio DeLeon Mar-

tinez V. United States, Attorney General William French Smith,

et al, Civ. No. H-82-3090. The expungement application in the

Harvester case had been preceded by the simultaneous filing by

DeLeon and the Petitioner Jesus Chavarria Garcia (“Chavar-

ria’’) of an amended injunction/declaratory judgment action on

November 18, 1982 in Civil No. H-82-3090 accompanied by

Chavarria’s Motion to Intervene and an injunction/declaratory

judgment action in the Harvester case that paralleled the

amended pleading filed in Civil No. H-82-3090.

4

The Trial Court in CR. No. H-82-3090 entered the following

orders:

(1)

(2)

(3)

October 27, 1982 — an order expunging DeLeon’'s

name from the indictment in the Crawford case;

October 29, 1982 — an order denying DeLeon’s

motion to expunge job title identifications of him from

the indictment in the Crawford case;

November 18, 1982 — an order denying Chavarria’s

motion to intervene and stating that no additional

relief will be granted in this action.

The Trial Court in the Harvester case entered its order on

December 1, 1982:

(1)

(2)

Denying the Application of DeLeon and Chavarria to

expunge from the Information filed November 17,

1982 references to and identifications by positions of

DeLeon and Chavarria.

Granted the Application of DeLeon and Chavarria to

order the U.S. Attorney and Department of Justice

Trial Attorneys not to include in the Offer of Proof

filed in the case on November 18, 1982 any reference

to and identification of DeLeon and Chavarria by

position or otherwise.

If it is determined that the appeals to the Fifth Circuit are

classifiable as criminal matters because they arose in connection

with criminal proceedings against parties other than the Peti-

tioners, the Petitioners have respectfully invoked the extension

provisions of Rule 20.1 and applied for a 30 day extension for

applying for a writ of certiorari.

5

CONSTITUTIONAL AND OTHER

PROVISIONS INVOLVED

This case involves:

1) U.S. CONST. art. III, §§ 1, 2

2) U.S. CONST. amend. V

3) U.S. CONST. amend. VI

4) 28 U.S.C. and § 1254(1)

5) 28 U.S.C. § 1291

6) 28 U.S.C. § 2201

7) Title 9 of the UNITED STATES ATTORNEY'S

MANUAL, § 9-11.225.

The foregoing provisions are set forth verbatim in the Appendix.

STATEMENT OF THE CASE

In the period from September 17, 1982, through November

17, 1982, in a Foreign Corrupt Practices Act (“FCPA”)

proceeding in California and three FCPA proceedings in Hous-

ton, Texas, in which proceedings the Petitioners were neither

indicted nor charged, the Petitioners were alleged to be the

intended or actual recipients of bribes totalling $9,960,432.40 in

a bribery scheme allegedly developed by gas compression equip-

ment suppliers to Petroleos Mexicanos (“Pemex”). The Petition-

ers were identified in the four sets of accusatory pleadings

numerous times; that is, DeLeon was identified by surname 17

times, described as the Pemex official in charge of purchasing 9

times, describéd 10 times as “folks,”’ a code word allegedly iden-

tifying DeLeon and Chavarria, and had 37 surname identifica-

tions of him deleted from the indictment in the Crawford case;

and Chavarria was identified by surname 59 times, described as

the Pemex official in charge of production/exploration 13 times

and described 6 times by the code word “folks.”

DeLeon at first, and later Chavarria, through their attorneys

in oral discussions with U.S. Trial Attorneys Pendergast and

6

Nicastro, in an office conference with Deputy Assistant Attorney

General Roger M. Olsen, and in letters to U.S. Trial Attorney

Pendergast and Attorney General William French Smith unsuc-

cessfully sought a mutual accommodation whereby the United

States would cease its practice of describing DeLeon and

Chavarria as participants in an alleged bribery scheme and

agree to a procedure whereby prior allegations about their par-

ticipation in the alleged bribery scheme would be deleted from

the accusatory pleadings by the filing of mutually approved

pleadings.

The Petitioners initiated two injunction/declaratory judgment

actions and four expungement actions in connection with the

three FCPA criminal cases filed in Texas. Partial relief was

granted to the Petitioners in the injunction actions: the Trial

Court in DeLeon’s first injunction/declaratory judgment case

ruled that the California FCPA case and the first Texas FCPA

case resulted in damaging publicity in Mexico to DeLeon as a

result of the extensive media coverage, which was evidenced by

over 3,000 newspaper, television and radio reports about the

Petitioners, so that DeLeon’s name should be expunged from the

indictment in the second Texas FCPA case; the Trial Court in

the third Texas FCPA case ruled that the job description iden-

tifications of the Petitioners in an offer of proof must be deleted,

but that the job description identifications of the Petitioners

could remain in the information for the reason that the informa-

tion had been filed the day before the Petitioners instituted their

injunction/declaratory judgment action to expunge the refer-

ences. All relief was denied to the Petitioners in the expunge-

ment cases, notwithstanding the fact that partial expungement

relief had been given to DeLeon in the Crawford case and to

both Petitioners in the Harvester case.

The Petitioners perfected timely appeals from the adverse

decisions in the expungement actions, which appeals were con-

solidated by the Fifth Circuit for hearing and briefing purposes.

7

The Petitioners timely filed their required brief, alleging 28

U.S.C. § 1291 (Supp. 1983), as appropriate jurisdictional

grounds.

On March 29, 1983, the due date of its Reply Brief, the

United States filed in the Fifth Circuit a Motion to Dismiss the

Appeals (“Dismissal Motion’’) on the ground that the Petition-

ers were fugitives from justice. The United States’ allegations in

support of the Dismissal Motion were that: |) Mexico indicted

the Petitioners for fraud and illegal associaticn on March 9,

1983; 2) an Extradition Complaint was filed on behalf of Mexico

in the U. S. District Court for the Southern District of Texas on

March 25, 1983, and provisional extradition arrest warrants

were issued for the Petitioners on March 25, 1983, which arrest

warrants could not be executed because the Petitioners allegedly

“had fled” from Sugarland, Texas.

An affidavit signed by U.S. Trial Attorney Pendergast that

was attached to the Dismissal Motion stated, without any sup-

porting proof, that (a) during the week of March 21, 1983,

DeLeon and Chavarria were located in Sugarland, Texas, and

(b) had fled from their residences in Sugarland, Texas on or

before March 25, 1983.

DeLeon and Chavarria each owned townhomes in Sugarland,

Texas, which from time to time, they or members of their family

used. DeLeon’s passport shows that he entered the United States

from Mexico on January 8, 1983 and left the United States and

entered Windsor, Canada, on March 4, 1983, and has been

outside the territorial boundaries of the United States and Mex-

ico since that date. Chavarria left Mexico and visited the United

States briefly in the midpart of 1982 and then left the United

States. Chavarria has not been within the territorial boundaries

of the United States or Mexico since mid-summer 1982.

DeLeon did not personally occupy his Sugarland townhome

after March 3, 1983. Chavarria did not occupy his Sugarland

townhome after midsummer 1982, which fact was supported in

8

affidavits signed by Estaban Chavarria who resides in an

adjacent townhome in Sugarland, Texas.

In an affidavit of Fort Bend County Deputy Terry Morgan

(“Morgan”) mailed to the Fifth Circuit by the United States on

August 12, 1983, the United States contended that Morgan saw

DeLeon on March 8, 1983 and March 24, 1983. The affidavit of

Deputy Morgan did not reveal that his affidavit, in respect to the

March 8, 1983 meeting, was not based upon his own

independent recollection, but was based upon a recollection

derived from the examination of residential security records

maintained by the Homeowners Association of the subdivision in

which DeLeon’s home was located, which records were neither

referred to nor attached to Morgan's affidavit. Access to and

examination of the foregoing residential security records without

a subpoena duces tecum was denied DeLeon’s attorney by Fort

Bend County Deputy Constable Hughes (“Hughes”), in his

capacity as the Chief of Security for the Homeowner's Associa-

tion. Hughes indicated that he would submit a report to U.S.

Trial Attorney Pendergast and seek Pendergast’s approval for

DeLeon’s attorney to examine the records.

The record pertaining to the extradition action against the

Petitioners in the Clerk’s office of the U.S. District Court for the

Southern District of Texas on March 28, 1983 and at all times

since March 28, 1983 contained no proof that an indictment of

the Petitioners was issued in Mexico at any time. The United

States did not comply with its representations to the U. S. Dis-

trict Court that Mexico would make a diplomatic request for the

arrest of the Petitioners in conformity with the treaty and the

formal papers upon which the demand for extradition was

founded within 60 days.

The Dismissal Motion was granted by the Fifth Circuit, on

June 16, 1983, and the Petitioners’ Motions for Panel Recon-

sideration and Suggestion of En Banc Reconsideration of the

Dismissal Order were denied on August 22, 1983.

9

The Petitioners’ injunction/declaratory judgment actions and

expungement actions were based upon the decisions in the Fifth

and Ninth Circuits holding that it was a constitutionally

impermissive denial of liberty and property rights guaranteed by

the Fifth Amendment to the Constitution of the United States,

for the United States in accusatory pleadings filed in a criminal

case to name or identify a person as an unindicted co-con-

spirator. United States v. Briggs, 514 F.2d 450 (9th Cir. 1975);

In re Smith, 656 F.2d 1011 (Sth Cir. 1981); United States v.

Chadwick, 556 F.2d 450 (9th Cir. 1977); Application of Jordan,

493 F.Supp. 199 (S.D.W.Va. 1977), U.S. Attorney’s Manual

§ 9. 11-225; The expungement actions also raised the issue that

the description by the United States of the Petitioners in the

accusatory pleadings as intended or actual recipients of bribes

totalling $9,960,432.40 constituted prosecutorial misconduct.

Department of Justice trial attorneys checked with Mexican

authorities before including the names of the Petitioners in the

accusatory pleadings involved in the appeals. In October, 1982

U. S. Trial Attorney William Pendergast stated that although

the Petitioners could not be indicted or charged in the

accusatory pleadings, the Petitioners should be punished by

describing them in the accusatory pleadings involved in these

cases. On May 23, 1983, U.S. trial attorneys in a hearing before

Judge Cire in the lead Crawford case admitted that the Govern-

ment did not have actual proof of monies being paid to Pemex

officials, but that the Government fe/r that it now had proof that

money ended up in a bank account of one of the Pemex officials

described in the Crawford indictment.

REASONS FOR GRANTING THE WRIT

Review on Certiorari is merited under Rule 17.1 of the Rules

of the Supreme Court. There is a constant need for this Court to

review and to supervise situations where the United States and

its agents intentionally and consciously violate a person's Fifth

Amendment due process rights and Sixth Amendment trial and

10

confrontation rights. The ongoing identification of the Petitiou-

ers by surname and job title description and then only by job

identification as unindicted/uncharged participants in a bribery

scheme indicates a clear need for this Court to monitor legal

positions that can and do oppress persons like the Petitioners.

The granting by the trial courts of partial and inadequate pro-

tection for the Petitioners’ constitutional rights must be

supervised. The Fifth Circuit's apparent extension of its appel-

late jurisdiction under 28 U.S.C. § 1291 to the resolution of

disputed questions of fact and law as to the status of the, Peti-

tioners as fugitives from justice needs to be contained or

forcefully redirected. The Fifth Circuit, by granting the United

States’ Motion to Dismiss the Petitioners’ appeals, has

impermissibly extended its supervisory rights under Article III

of the Constitution with a resultant interference with the Peti-

tioners’ Fifth and Sixth Amendment rights. The Fifth Circuit

has ignored its obligations under Article II] to assure fair and

equitable conduct by all parties before it. If the Molinaro rule

requires the dismissal of the Petitioners appeals, Krippendorf v.

Hyde, 110 U.S. 276 (1884), Precision Investment Mfg. Co. v.

Automatic Machine Co., 324 U.S. 806 (1945), and Keystone

Driller Co. v. General Excavator Co., 290 U.S. 240 (1933),

require that indignities heaped upon the Petitioners through the

intentional and conscious actions of the United States be

redressed and remedied in a way that is just and equitable.

ARGUMENT

I.

The Fifth Circuit does not have the jurisdiction under 28

U.S.C. § 1291 to consider disputed questions as to whether the

Petitioners were fugitives from justice within the meaning of

Molinaro v. New Jersey, 396 U.S. 365 (1970), when the ques-

tions are first raised while the cases on appeal are pending before

the Fifth Circuit.

The jurisdiction of the Fifth Circuit is limited by Section 1291

of Title 28 of the U.S. Code to a consideration of appeals from

final decisions of district courts of the United States.

The final decisions of the District Courts that were on appeal

to the Fifth Circuit involved appeals from orders denying the

Petitioners’ applications to expunge references to them as

unindicted/uncharged participants in an alleged bribery scheme

and the Petitioner Chavarria’s appeal from an order denying

him the right to intervene in an injunction/declaratory judgment

proceeding initiated by the Petitioner DeLeon prior to the

presentation and filing of the indictment in the Crawford case.

The Dismissal Motion filed by the United States with the

Fifth Circuit raised for the first time on appeal the question

whether the Petitioners were fugitives from justice within the

contemplation of the Molinaro rule. The Petitioners denied the

allegations as to their status as fugitives.

The Fifth Circuit had jurisdiction to hear the appeals, but it

did not have jurisdiction to consider and decide the disputed

questions of fact and law as to the status of the Petitioners as

fugitives from provisional extradition arrest warrants or as fugi-

tives from crimes in Mexico for two reasons: (1) these questions

had not been the subject of final decisions by District Courts,

and (2) a Court of Appeals cannot take judicial notice of mat-

ters not included in the record of the case in which a final deci-

sion has been entered. In particular it cannot take judicial notice

12

of unrecorded legal proceedings in foreign forums, which were

not offered into evidence, for example, a Mexican indictment of

the Petitioners, a Mexican arrest warrant, a Mexican extradition

request, an affidavit of U.S. Trial Attorney Pendergast based

upon hearsay information provided him. United States v. Mar-

tin, 273 F.2d 344 (2nd Cir. 1959).

After the Dismissal Motion was filed, the record before the

Fifth Circuit was: (1) the records brought forward from the

District Court proceedings; (2) the Dismissal Motion supported

by copies of the extradition complaint filed by the United States,

provisional extradition arrest warrants, and U. S. Trial Attorney

Pendergast’s affidavit based upon information provided him that

the Petitioners had been in their Sugarland, Texas, townhomes

in the week of March 21, 1983, and fled from those homes on or

before March 25, 1983; (3) copies of pages from DeLeon’s pass-

port showing his entry into the United States on January 8,

1983, and departure from the United States and entry into

Windsor, Canada on March 4, 1983; and (4) the affidavits of

Estaban Chavarria, the son of the Petitioner Chavarria, that his

father had not been in the United States or Mexico at any time

after mid-summer 1982.

It is clear that the issue as to the fugitive status of the Peti-

tioners was a disputed one and did not represent a final decision

of a District Court.

The normal procedure for resolution of a disputed question

such as ihe Petitioners’ status as fugitives from justice would be

to remand the cases to one of the District Courts, whose orders

were the subject of the appeals, for a decision as to the Petition-

ers’ status, i.e., were the Petitioners fugitives from justice?

Ruetz v. Lash, 500 F. 2d 1225 (Sth Cir. 1974); United States v.

First National City Bank, 568 F. 2d 853 (2nd Cir. 1977);

United States v. Press, 401 F. 2d 499 (3rd Cir. 1968).

The definition of a fugitive from justice is not a static one. As

pointed out in Donnell v. United States, 229 F.2d 560 (Sth Cir.

13

1956) , the definition of a “fugitive from justice” in an extradi-

tion context is different from the definition in a limitations

context:

It is clear, therefore, that under extradition statutes the

fact of absence at the time of the arrest is sought establishes

the right of removal to the district of the crime regardless of

the motive or intent behind the absence. But it is equally

clear that, in determining whether a person charged with

crime will be denied the right to be protected by the statute

of limitations, the purpose and intent of his absence is an

important matter to be inquired into by the jury under the

plain words of the statute and the decision discussed.

The Court below having held that appellant’s absence

standing alone took from him the right to have the jury

consider the circumstances and intent attending his

absence, its judgment is reversed and the cause is remanded

for further proceedings in conformity with this opinion.

Id. at 565.

There was a clear conflict as to the legal significance of the

Petitioners, as Mexican citizens, not being found on March 25,

1983 in townhomes owned by them in Sugarland, Texas. In view

of the foregoing conflict as to the fundamental facts and the

applicable law, the Fifth Circuit in the light of the limitations on

its jurisdiction should have followed the principles set forth in

the Ruetz, City Bank, Press and Donnell cases and directed one

of the District Courts to conduct a hearing in respect to the

question as to whether DeLeon or Chavarria was a fugitive from

justice. The failure of the Fifth Circuit to follow such a

procedure caused it to exceed its jurisdiction when it dismissed

the Petitioners’ appeals.

The Fifth Circuit’s finding without a hearing that the Petition-

ers were fugitives from justice followed by the dismissal of their

appeals violated the Petitioners’ Fifth and Sixth Amendment

rights just as effectively as the United States description of them,

14

as unindicted and uncharged participants in a bribery scheme,

violated their constitutional rights.

1. Molinaro v. New Jersey, 396 U.S. 365 (1970) reflects a

principle of even-handed administration of the judicial process

and is not a limitation upon the Petitioners’ rights under the Fifth

and Sixth Amendments.

By their terms, Article III of the Constitution and the Fifth

and Sixth Amendments are co-extensive in their application to

the Petitioners. The appeals before the Fifth Circuit of the deni-

als of the Petitioners’ expungement applications were adjudi-

cable cases or controversies. The issue as to whether the Peti-

tioners were fugitives from justice within the meaning of the

Molinaro case was before the Fifth Circuit, but the disputed

issue could only be resolved by a trial court having jurisdiction to

find facts and determine the applicable law. The Fifth Circuit

lacked such jurisdiction.

It is clear that the District Court cases involved the rights of

the Petitioners under the Fifth and Sixth Amendments. The

filing by an unindicted person of an expungement application in

a criminal case bifurcates the case into one having civil and

criminal aspects. The interjection of a question as to the status

of the Petitioners as fugitives from justice in an expungement

case that is being appealed raises questions that might impact

upon the Petitioners’ rights. If the issue of the Petitioners’ status

is resolved on the grounds that they are criminals, the Petitioners

would clearly have protectible Sixth Amendment rights at both

the trial court level and the appellate level if the appellate court

is sitting as a court of original jurisdiction.

Even if the Fifth Circuit’s lack of jurisdiction to make a deci-

sion as to the status of the Petitioners is ignored, the fact

remains that the Fifth Circuit's determination without a hearing

that the Petitioners were fugitives from justice and concurrent

15

dismissal of the appeals violated the Petitioners’ Fifth Amend-

ment due process and Sixth Amendment trial and confrontation

rights.

2. The issue as to whether the appeals involved Petitioners

who were not within the Fifth Circuit's control was not relevant to

the question of whether the District Courts’ denials of expunge-

ment relief were wrong and should be reversed.

Disentitlement to consideration of an appeal, under the

Molinaro rule, rests upon the proposition that an Appellant who

had fled during the pendency of the appeal of his criminal con-

viction, has removed himself from the jurisdiction and control of

the appellate court and rendered the issues before the Court

moot. Smith v. United States, 94 U.S. 97 (1876); Bohanan v.

Nebraska, 125 U.S. 692 (1887); Molinaro, 396 U.S. at 366:

United States v. Dimas Campos-Serrano, 404 U.S. 293 (1971);

Allen v. State of Georgia, 166 U.S. 950 (1897).

The Petitioners were not defendants in any criminal actions,

but were civil litigants taking appropriate legal steps to protect

their constitutional rights after the United States had violated

them. The Petitioners’ appeals challenged the United States’

actions in depriving the Petitioners of their liberty and property

rights. The corrections of the injustices caused the Petitioners by

the United States did not involve or require control of the per-

sons of the Petitioners. Full effect could be given to a Fifth Cir-

cuit decision on the merits of the Petitioners’ expungement

applications without ever involving the Petitioners or requiring

the Petitioners to do anything. The civil issue as to the entitle-

ment of the Petitioners to have the Fifth Circuit consider their

appeal should not hinge upon whether the Petitioners were

physically within the jurisdiction of the Fifth Circuit. There was

no matter or circumstance before the Fifth Circuit that would

require the Petitioners to respond to a judgment made by the

Fifth Circuit in respect to the appeals. Smith, Bohanan and

Molinaro cases.

16

The issues in the appeals that were before the Fifth Circuit

were whether the District Courts wrongfully denied the Petition-

ers’ applications to expunge from accusatory pleadings the

descriptions of the Petitioners as unindicted, uncharged partici-

pants in a bribery scheme that violated the Foreign Corrupt

Practices Act. The appeals from the District Court denials of the

expungement applications were based upon the decisions in

United States v. Briggs, 514 F.2d 794 (Sth Cir. 1975); In re

Smith, 656 F.2d 101 (Sth Cir. 1981); United States v.

Chadwick, 556 F.2d 450 (9th Cir. 1977) and the Department

of Justice’s policy statement in 9 UNITED STATES

ATTORNEY'S MANUAL, Sec. 9-11.225. It was evident from

the record that both the United States and the District Courts

violated the Petitioners’ Fifth and Sixth Amendment rights, and

that it was these violations that were being appealed and these

violations that needed to be remedied.

3. The dismissal of the Petitioners’ appeals without an

appropriate hearing as to the status of the Petitioners as fugitives

ignored the ultimate facts and deprived the Petitioners of due

process, liberty and property rights.

The facts on March 25, 1983, the date provisional extradition

arrest warrants were issued for the Petitioners, were:

1. DeLeon had been living outside Mexico since

January 8, 1983 and outside the United States since March

4, 1983.

2. Chavarria had been living outside Mexico and the

United States since mid-summer 1982.

The Petitioners were not fugitives from justice at the time

each of them left Mexico. The Petitioners were not fugitives

from justice when each of them last entered the United States.

The Petitioners were not fugitives from justice at the time each

of them last left the United States. The Petitioners had no duty

to be in the United States at the time the appeals were filed or to

remain in the United States thereafter. The Petitioners had no

17

duty to be in the United States on March 9, 1983 (the alleged

date of Mexican charge) or March 25, {983 (extradition com-

plaint date) or on any date thereafter. The Petitioners had left

the United States prior to March 9, 1983. The Petitioners owed

no duty to the United States, Mexico or any other government to

remain in the United States. At the time of their respective

departures from the United States the Petitioners were not

charged with a crime in Mexico and were not the subject of an

extradition complaint in the United States.

The Petitioners were not found in the United States. The Peti-

tioners should not have been classified as fugitives from justice

for purposes of the extradition »roceeding.

In the Molinaro case, this Court described its position on the

consideration of appeals of escaped prisoners in the following

words:

No persuasive reason exists why this Court should proceed

to adjudicate the merits of a criminal case after the con-

victed defendant who has sought review escapes from the

restraints placed upon him pursuant to the conviction.

While such an escape does not strip the case of its character

as an adjudicable case or controversy, we believe it disen-

titles the defendant to call upon the resources of the Court

for determination of his claims. (emphasis supplied).

Id. 396 US. at 365.

The applicability of the Molinaro rule to escapees, “bail

jumpers” or persons taking unauthorized absence from the

courts’ jurisdiction is apparent. United States v. Shelton, 482

F.2d 848 (Sth Cir. 1973); Broadway v. City of Montgomery,

Alabama, 530 F.2d 657 (Sth Cir. 1976), United States v. U.S.

Commanding Officer of the Provost Marshal, U.S. Army, 496

F.2d 324 (1st Cir. 1974). The applicability of the Molinaro rule

to civil appeals of matters that are intimately related to or

intertwined with a conviction for a crime or escape from confine-

ment has been established by the decisions in Doyle v. United

States Department of Justice, 494 F.Supp. 842 (D.C. D.C.

1980); Conforte v. Commissioner, .... U.S. ....., 103 S. Ct.

663 (1983). The limited holding of this Court in the Molinaro

case and the fact that some courts had expanded the holding was

acknowledged by Justice Rehnquist in the Conforte case.

While this Court has never extended the ‘‘fugitive from

justice” rule beyond the facts of Molinaro and Smith (i.e.,

where the criminal conviction the litigant is a fugitive from

is the judgment being challenged on appeal), the court

below correctly points out that the Courts of Appeals have

done so on a number of occasions. (emphasis supplied).

Id. 103 S.Ct. 663.

The genesis of the dismissal rule of the Molinaro case has

been the proposition that a convicted appellant, by his voluntary

act of removing himself from the jurisdiction of the Court,

creates an unacceptable option solely within his own control;

that is, the appellant acknowledges that he will subject himself

to the Court’s jurisdiction if the Court rules favorably on his

appeal but will remain outside the Court's jurisdiction if the

Court’s ruling is unfavorable to him. In the case of an affirmance

of the conviction the Court would be unable to enforce its judg-

ment against the Appellant. In effect it is a Hobson choice that

makes a mockery of the concept of an evenhanded administra-

tion of justice.

The Fifth Circuit's resolution of the question of the Petition-

ers’ status as fugitives without a factual hearing deprived the

Petitioners of:

A. Procedural due process in the form of a hearing rela-

tive to their status as fugitives;

B. The right to confront their accusers; that is, constables,

U.S. Trial Attorneys, etc.;

C. A substantive consideration of the Petitioners’ claim

that their liberty and property rights had been violated

by the actions of the United States in describing them

19

!

as unindicted/uncharged participants in a_ bribery

scheme.

The dismissal of the Petitioners’ appeals without an appropriate

fact finding violated the Petitioners’ rights under the Fifth and

Sixth Amendments.

The equitable powers of the Courts of the United States to

prevent abuse, oppression and injustice are adequate to fashion a

protection for the Petitioners from the excesses of the United

States and to protect the United States from the improprieties or

defections of the Petitioners.

The cases appealed by the Petitioners to the Fifth Circuit were

in fact and substance civil cases. The Petitioners had not been

charged with the commission of any crime, yet, the United

States engineered a strategy invoking a rule of criminal law,

relying on a set of incomplete, inaccurate facts proffered by the

United States to indicate wrongdoings by the Petitioners in

order to deprive the Petitioners of their appeal rights.

At the time the accusatory pleadings were filed, the United

States attorneys knew that an offense under the FCPA did not

require proof of a completed bribe. The statements of the U.S.

Trial Attorneys in May, 1983 indicated that they had not ini-

tially felt that they could prove a completed bribe and rhoreover

were still unable to prove a bribe. Notwithstanding the foregoing

state of facts, the United States went to great efforts to allege

that the Petitioners accepted bribes and participated in a bribery

scheme. The allegations of the United States have harmed the

Petitioners’ lives and destroyed their reputations in two coun-

tries. The United States did all of these things knowing that its

allegations against the Petitioners were unessential to their case

against the defendants in the FCPA case and knowing they had

no evidence that any money or property was ever paid to Peti-

tioners as a bribe.

20

The question is one of simple fairness: Is it fair that the

United States and the various U.S. Trial Attorneys assigned to

FCPA cases involved in the appeals be allowed to destroy two

men’s lives? Is it fair to let the United States intentionally vio-

late a person's constitutional rights? Is it fair to allow the United

States to insulate itself from the consequences of its own wrongs

by judicial fiat? We think it is not.

At the time Chavarria left Mexico and the United States in

mid-summer 1982 there was no inkling of the type of action the

United States was going to take in respect to him. On November

17, 1982 the date the Harvester case was filed the full extent of

the conscious excesses that the United States would and did take

towards DeLeon and Chavarria was apparent.’

The record also shows the direct consequences of harm and

irreconcilable inconsistencies that flowed from the actions of the

United States.’ Collectively the record chronicles the improprie-

ties and the wrongdoings of the United States and brings into

focus the question of this Court's ability to make clear to the

United States and its attorney staff that: 1. In the first instance it

* 76 surname identifications of the Petitioners appeared in accusatory

leadings in which the Petitioners were described but not

indicted/charged as participents in an alleged bribery scheme; 22

job description identifications appeared in the same accusatory

leadings in which the Petitioners were described but not

indict Ape om as participants in an alleged bribery scheme; 16

code word references were made to the Petitioners as “folks” who

participated in an alleged bribery scheme without being

indicted/charged with a crime in respect to such alleged

participation.

* Over 3,000 newspaper, radio and television reports were made con-

taining descriptions of the Petitioners as participants in an alleged

bribery scheme; an order by a District Court judge expunging 37

surname identifications of DeLeon from the Crawford indictment

and a subsequent order two days later by the same judge declining

to expunge a job title description of DeLeon from the same indict-

ment; an order by a District Court judge ordering the U.S. Trial

Attorneys to delete from an Offer of Proof job title descriptions of

the Petitioners and a second order refusing to expunge from an

21

is necessary that the United States and its professional trial staff

understand and accept the fact that the Fifth and Sixth Amend-

ments are alive, functioning and in a meaningful way protect the

interests of the Petitioners and persons similarly situated. 2.

Appellate courts of review cannot exercise jurisdiction not

granted to them by statute and cannot extend or redefine a

judicial rule of administration to fact situations and relation-

ships that fall outside the principles contemplated by this Court

in its supervisory role over the judicial process. The ultimate

answer as to the outer limits of the Molinaro rule rests with this

Court.

The fair and equitable administration of our judicial processes

in these cases requires that the relative needs of the Petitioners

and society be brought to a point of equipose. The Petitioners

are convinced that the extension of the Molinaro rule to a point

where their appeals are finally dismissed is inappropriate, but

the Petitioners recognize that the outer boundaries of the rule

can only be determined by this Court.

The Petitioners are equally concerned about the state of law

whereby the United States and its representatives can con-

sciously and intentionally violate the Petitioners’ constitutional

rights under the Fifth and Sixth Amendments and spare them-

selves the consequences of their acts by filing a Dismissal Motion

based upon a provisional extradition warrant, which in no man-

ner relates to the issues involved in the appeals, hut which effec-

tively defeats their constitutional rights by terminating a judicial

review to ascertain whether their rights have been violated.

The gentlest description of the actions taken by the United

States and its representatives in respect to the Petitioners in

connection with the FCPA cases is “overzealousness"’; the most

information filed on the proceeding day the precise job title identifi-

cations of the Petitioners on the grounds that the Petitioners’ appli-

cation for injunctive relief came one day late, i.e., the information

had been filed on the preceding day.

22

accurate description of the actions would be “conscious inten-

tional attempts to violate the Petitioners’ Fifth and Sixth

Amendment rights and punish the Petitioners.” Under the latter

categorization of the actions of the United States, a reasonable

application of the “clean hands” doctrine would have precluded

the United States from urging its Dismissal Motion.

If it is clear that dismissal of the appeals was required, in an

equitable context it is equally as important that the United

States not be allowed to “get off Scot Free’’. In the event that

the Molinaro rule governs the appeals the Petitioners suggest

that the remedy that should be fashioned by this Court should

meet the needs of the Petitioners, the Government and society as

a whole and should be in the mold of this Court’s definition of its

equitable powers in the Krippendorf case, when it said “So the

equitable power of courts of law over their own process to

prevent abuse, oppression and injustice is inherent...” 110 U.S.

at 283.

The Petitioners suggest that the proper equitable remedy

would be the issuance by this Court of instructions to the Fifth

Circuit in the following vein:

The cases are remanded to the Fifth Circuit with instruc-

tions that the Fifth Circuit shall ascertain whether the Peti-

tioners’ constitutional rights were violated, and, if they were

violated, the identifications of the Petitioners should not be

expunged from the accusatory pleadings, but there shall be

entered into the record in the respective cases a clear state-

ment that the constitutional rights of the Petitioners were

violated by the inclusion in the pleadings, of identifications

of the Petitioners as participants in a bribery scheme and,

stating that the identifications of the Petitioners were not

expunged from the pleadings for the reason that the Peti-

tioners were fugitives from provisional extradition arrest

warrants.

23

The lack of jurisdiction by the Fifth Circuit to make the fugi-

tive from justice determination that it did make, the inappropri-

ateness of extending the Molinaro rule to the Petitioners’

appeals, and the unwholesomeness of allowing the United States’

violations of the Petitioners’ constitutional rights to remain

unredressed emphasize the need for and the soundness of having

a writ of certiorari issue to review the order dismissing the Peti-

tioners’ appeals that was issued by the United States Court of

Appeals for the Fifth Circuit on June 16, 1983.

DATED November 18, 1983.

5005 Woodway

P. O. Box 2482

Houston, Texas 77252

(713) 871-1185

Counsel of Record for Petitioners

CHARLES J. SULLIVAN

5005 Woodway

P.O. Box 2482

Houston, Texas 77252

(713) 871-1185

Of Counsel

APPENDIX

24

APPENDIX

IN THE

Wnited States Court of Appeals

FOR THE FirTH CIRCUIT

Nos. 83-2007, 83-2008

83-2045 & 83-2060

UNITED STATES OF AMERICA

Plaintiff-Appellee,

VERSUS

CRAWFORD ENTERPRISES, INC., ef ai.,

Defendants,

Jesus CHAVARRIA AND IGNACIO DELEON MARTINEZ,

Applicants-Appellants.

APPEALS FROM THE UNITED STATES DistrRICT COURT FOR THE

SOUTHERN District OF TEXAS

Before CLARK, Chief Judge, POLITZ and HIG-

GINBOTHAM, Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellants’ motion for leave to file

supplemental response to appellee's motion to dismiss is granted.

IT IS FURTHER ORDERED that the motion of appellee to

dismiss the appeal is granted.

IT IS FURTHER ORDERED that appellants’ motion to sup-

plement the record on appeal is granted.

25

IN THE

United States Court of Appeals

For THE FiFTH CIRCUIT

Nos. 83-2007, 83-2008,

83-2045 & 83-2060

UNITED STATES OF AMERICA

Plaintiff-Appellee,

VERSUS

CRAWFORD ENTERPRISES, INC., ef ai.,

Defendants,

Jesus CHAVARRIA AND IGNACIO DELEON MARTINEZ,

Applicants-Appellants.

APPEALS FROM THE UNITED STATES District COURT FOR THE

SOUTHERN DISTRICT OF TEXAS

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion June 16, 5 Cir., 1983, ....F.2d....).

(August 22, 1983)

Before CLARK, Chief Judge, POLITZ and HIG-

GINBOTHAM,, Circuit Judges.

PER CURIAM:

(xX) The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc,

(Rule 35 Federal; Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the Suggestion for Rehearing En Banc is

DENIED.

26

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it, (Rule 35 Federal

Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the

Suggestion for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having requested

a poll on the reconsideration of this cause en banc, and a

majority of the judges in active service not having voted in favor

of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

CHIEF JUDGE

27

U.S. CONST., art. III § 1 and 2.

Article III. The Judiciary

Section |. The judicial Power of the United States, shall

be vested in one supreme Court, and in such inferior Courts

as the Congress may from time to time ordain and establish.

Section 2. The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made, under their Authority;

U.S. CONST., amend. V.

AMENDMENT V — CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION: DUE

PROCESS; JUST COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put n jeopardy of

life or limb; nor 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; nor shall private

property be taken for public use, without just compensation.

U. S. CONST., amend. VI.

AMENDMENT VI — JURY TRIAL FOR CRIMES,

AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

28

against him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the Assistance of Counsel

for his defense.

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

SECTION 1254. COURT OF APPEALS; CERTI-

ORARI,; APPEAL; CERTIFIED QUESTIONS

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

{1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition

of judgment or decree.

28 U.S.C. Section 1291 (Supp. 1983):

SECTION 1291. FINAL DECISIONS OF DISTRICT

COURTS

The courts of appeals (other than the United States Court

of Appeals for the Federal Circuit) shall have jurisdiction of

‘~appeals from all final decisions of the district courts of the

United States, the United States District Court for the Dis-

trict of the Canal Zone, the District Court of Guam, and

the District Court of the Virgin Islands, except where a

direct review may be had in the Supreme Court. The juris-

diction of the United States Court of Appeals for the

Federal Circuit shall be limited to the jurisdiction described

in sections 1292(c) and (d) and 1295 of this title. As

amended Apr. 2, 1982, Pub.L. 97-164, Title I, § 124, 96

Stat. 36.

28 U.S.C. 2101(c)

SUPREME COURT; TIME FOR APPEAL OR CERTI-

ORARI; DOCKETING; STAY

(c) Any other appeal or any writ of certiorari intended to

bring any judgment or decree in a civil action, suit or

proceeding before the Supreme Court for review shall be

29

taken or applied for within ninety days after the entry of

such judgment or decree. A justice of the Supreme Court,

for good cause shown, may extend the time for applying for

a writ of certiorari for a period not exceeding sixty days.

28 U.S.C. Section 2201:

SECTION 2201. CREATION OF REMEDY

In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes other than actions

brought under section 7428 of the Internal Revenue Code

of 1954 or a proceeding under section 505 or 1146 of title

11, any court of the United States, upon the filing of an

appropriate pleading, may declare the rights and other legal

relations of any interested party seeking such declaration,

whether or not further relief is or could be sought. Any such

declaration shall have the force and effect of a final judg-

ment or decree and shall be reviewable as such.

Title 9 of the United States Attorney's Manual.

“9-11.225 Limitation on Naming Persons Unindicted Co-

conspirators

The practice of naming individuals as unindicted co-con-

spirators in an indictment charging a criminal conspiracy

has been severly criticized in United States v. Briggs, 514

F.2d 794 (Sth Cir. 1974), and other cases. In granting

appellants’ motion for an order of expungement in Br egs,

the Court of Appeals held that, in charging them with

criminal conduct without indicting them, the grand jury

exceeded its powers and authority and that its action was a

denial of due process to appellants since it deprived them of

an opportunity to challenge the correctness of the grand

jury's accusation. See also United States v. Chadwick, 556

F.2d 450 (9th Cir. 1977); Application of Jordan, 439

F. Supp. 199 (S.D.W.Va. 1977); United States v. Hansen,

422 F. Supp. 430 (E.D. Wis. 1976).

“Primarily on the basis of Briggs, the American Bar

Association has recently adopted as part of its policy on the

30

grand jury, the following statement of principle. “The

grand jury shall not name a person in an indictment as an

unindicted co-conspirator in a criminal conspiracy. Nothing

herein shall prevent supplying such names in a bill of par-

ticulars: (Principle 7 of 25 principles).

“The Department did not oppose the Adoption of this

Principle by the ABA and generally concurs in it. As the

court in Briggs pointed out, there is no need ordinarily to

name a person as an unindicted co-conspirator in an indict-

ment in order to fulfill any legitimate prosecutorial interest

or duty. For purposes of indictment itself, it is sufficient, for

example, to allege that the defendant conspired with

“another person or persons known.” The identity of the per-

son can be supplied, upon request, in a bill of particulars.

With respect to the trial, the person's identity and status as

a co-conspirator can be established, for evidentiary pur-

poses, through the introduction of proof sufficient to invoke

the co-conspirator hearsay exception without subjecting the

person to the burden of a formal accusation by a grand jury.

“Accordingly, in the absence of some sound reason (e.g..

where the fact of the person's conspiratorial involvement is

a matter of public record or knowledge), it is not desirable

for United States Attorneys to identify unindicted co-con-

spirators in conspiracy indictment.”