Petition — Ball v. United States

83-987.

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

UNITED STATES OF AMERICA,

Respondent,

v.

GARY S. BALL,

Petitioner.

UNITED STATES OF AMERICA,

Respondent,

v.

JOHN HANNA BROWNFIELD,

Petitioner.

3 PETITION FOR WRiT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NASATIR & HIRSCH CHULA & MAY

by MICHAEL D. NASATIR by ALAN M. MAY

Member of the Bar & KEVIN E. ROBINSON

U.S. Supreme Court 518 S. Broadway

9911 W. Pico Bivd., Ste. 1000 Santa Ana, CA 92701

Los Angeles, CA 90035 (714) 558-0921

ROGER S. HANSON

Member of the Bar,

U.S. Supreme Court

1517 E. 4th St.

Santa Ana, CA 92701

(714) 953-0638

J. GALLAGHER - PRINTED BRIEFS (714) 685-3637

QUESTIONS PRESENTED

The following questions are presented for determina-

tion by the Court:

1. Whether the use as evidence against Petitioner Ball of

out-of-court statements made by co-Petitioner and co-De-

fendant denied him of his right to confront and cross-

examine witnesses and violated the hearsay rule; that

evidence being admitted on a showing of slight evidence of

Petitioner’s involvement in a conspiracy with the declar-

ant.

2. Whether, based upon the mere assertion by the

_ government that tape-recorded statements by petitioner

to federal agents contained neither relevant nor excul-

patory evidence, the Court’s summary denial, without

hearing or inspection, of petitioner’s motion to inspect and

copy those tape-recordings violated petitioner’s Fifth

Amendment due process rights to a fair trial.

3. Whether a finding by the Court of Appeals that there

was ample evidence that petitioners conspired to “pur-

chase” cocaine offered for sale by federal agents supports

an affirmation of a conviction of conspiracy to possess

cocaine with intent to sell or distribute.

4. Whether evidence that Petitioners agreed to inspect a

quantity of cocaine offered for sale by federal agents and

depending on whether the cocaine met acceptable requis-

ites of purity and, cosmetic appearance, then decide how

much, if any, to purchase from the undercover agents is

sufficient to sustain a conviction for conspiracy to possess

cocaine with intent to sell or distribute.

5. Whether actions of federal agents posing as nail

of a drug smuggling ring in first contacting petitioner in

laundering “drug” money, then offering to sell petition co-

cain on a continuing basis, enlisting him to set up a co-

caine distribution network in exchange for funding a pro-

posed bank, constituted outrageous government conduct

violating the Fifth Amendment due — rights of peti-

tioners.

PARTIES TO THE PROCEEDINGS

The parties to this petition for certiorari are the

UNITED STATES OF AMERICA and the named de-

fendant-petitioners, BALL AND BROWNFIELD.

TABLE OF CONTENTS

SN PROUUNNNIDEE Cy. ci oss wep bas bens svsteeancdds i

Partes to tie Proceedings... ......scsccccscscvccesce ii

| RTT PET eon tee ory iii

pg BRP TPY ETC ee Pere ee oe vi

Potation for Writ of Certiorari.........ccccccccesces 1

A Sons ay 6's ¢re ak, tah Wlocwumewns 2

SEs UVex id ch's'g bees keen beanecdrn pv Leven 2

Constitutional and Statutory Provisions Involved. .... 2

NG G6 GO CONS 6 ons ccc eve eeesk ocoksemenaee 4

Reasons for Granting the Writ .................... 14

L The Ninth Circuit Requires Only a “Prima Facie” Show-

ing of a Conspiracy to Allow Co-Conspirator Statements

To Be Introduced Into Evidence Against an Alleged

‘ Co-Conspirator: This Showing Is Significantly Less Than

That Required By Other Circuits. Certiorari Should Be

Granted To Resolve This Conflict Between the Various

iia. 5 ugicouss 6a dec san tae ene Cees 14

IL. The District Court, in Denying, Without Hearing Or

Inspection, Petitioner's Request For An Ordering Re-

quiring The Government To Allow Inspection and Copy-

ing Of All Statements By and Between Petitioner And

Federal Agents During The Relevant Period Relying On

The Government’s Mere Assertion That Those They Had

Chosen To Withhold Were Irrelevant, Far Departs From

the Usual And Accepted Course of Judicial Proceedings.

The Court of Appeals Has, By Its Judgment, Sanc-

tioned The Same and Decided This Issue In Direct Con-

flict With The Applicable Decisions Of This Court .... 19

IIL The Court of Appeals Has Interpreted A Federal Stat-

ute In Conflict With Decisions of This Court, And Has

Sanctioned The District Court’s Departure From the Ac-

cepted And Usual Procedure of Judicial Proceedings By

Resolving Doubts in Evidence And Construction of Penal

Statute Against the Petitioners.................... 24

IV. This Honorable Court Should Grant Certiorari To

Clarify Its Decision In Hampton v. United States, 425

U.S. 484, (1976), Concerning Governmental Overreach-

ing, (Outrageous Governmental Conduct), And To Re-

solve An Apparent Conflict In Decisions Between The

United States Court of Appeals For the Ninth Circuit And

iv

xg

Pay rete

NS oe. gn ccvec cosa sede tdauseeeenne 31

Appendix A, Order Denying Petition for Rehearing. .. . 35

Appendix B, Memorandum Opinion of 9th Circuit .... 38

Appendix C, Memorandum of Decision and Order from

U.S. District Court of Appeals .................06: 46

Appendix D, Discovery Summary, U.S. Attorney.... 50

ET MEOUNOD . cv occ ccecocuansccaceua shee 56

TABLE OF AUTHORITIES

Cases:

Page:

Brady v. Maryland,

373 U.S. 83, 87 101 Ed. 2nd 215, 83 S.Ct. 1194

Goldman v. United States

316 U.S. 129, 62 S.Ct. 993, 86 L. Ed. 13822....26

Greene v. United States

454 F.2nd 783 (9th Circuit, 1971)............. 31

Hampton v. United States

GUTEN p i bincciecleow Ovonswarewere 32

United States v. Dixon

ee eh nae, BEOe Cote CAR). 6c vecccccctocsns 19

United States v. Enright

579 F.2d 980, 984-86 (6th Cir. 1978).......... 18

United States v. Federico

658 F.2d 1337, 1342, n.7 (9th Cir. 1981)....... 19

United States v. Fleischman

es Rae WOE COD |b bn b'n cb cb 010 bee e 0.0 eo 19

United States v. Fried

576 F.2d 787, 793, n.7 (Oth Cir.) ......cccccces 19

United States v. Gutierrez

Ore bare 200; 274 ChOtd Cie.) oc cic cccveene 18

United States v. Haldeman

Oe ee Oe, 200 TOLG.CI). ccviccccccccscecue 19

United States v. James

590 F.2d 575, 581 (5th Cir.)...........00ccuee 18

United States v. Macklin

573 F.2d 1046, 1048 (8th Cir.)................ 18

United States v. Petrozziello

S68 F.Sd 90, 33 (let Cle. 1977) 2... cccccsvcvecs 17

United States v. Rinn

586 F.2nd 113 (9th Circuit, 1978)............. 22

United States v. Russell

re I REED o's v5 4R.c ob daipes vueeeenewer 31

United States v. Santiago

582 F.2d 1128, 1133-35 (7th Cir. 1978)........ 18

United States v. Stanchich

550 F.2d 1294, 1298 (2d Cir. 1977) ........... 18

vii

United States v. Stroupe

538 F.2d 1063, 1065 (4th Cir. 1976)........... 18

United States v. Trowery

542 F.2d 623, 627 (3d Cir., 429 U.S. 1104)

CRIP < Win'uo 0c cw eso unin as demeupies Sha ee 18

United States v. Twigg

588 F.2nd 373 (3rd Circuit, 1978)............. 32

Codes:

United States Code, Federal Rules of Evidence:

PY DOU cin icivecc tc dhenumemanen 4, 17, 18, 20

OD eee erry err ee 4

Pere rr ete ae 4

United States Code, Federal Rules of Criminal

Procedure:

ED Svan one ceauuus canna 5, 21, 22, 24

28 United States Code §1254 ......... cece ee eeees 3

United States Constitution:

Pen See oe ks esd. Bee 3, 24

FE eee 3

IN THE

SUPREME COURT OF THE UNITED STATES

GARY S. BALL and

JOHN H. BROWNFIELD,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI

Petitioners hereby pray for a Writ of Certiorari to re-

view the judgment of the United States Court of Appeals

for the Ninth Circuit as to Petitioners, entered on July 18,

1983, and the Court’s denial of reconsideration entered on

October 18, 1983.

The judgment affirmed the judgment of the United

States District Court for the Central District of California

as to Petitioners entered October 25, 1982.

OPINIONS BELOW

There were no opinions issued by either the court of ap-

peals or the District Court, but both issued Memorandum

Orders which are affixed hereto at the Appendix.

JURISDICTION

On July 18, 1983, the United States Court of Appeals

for the Ninth Circuit affirmed the judgment of the United

States District Court for the Central District of California

as to Petitioners. On October 18, 1983, the Court denied

the petition for reconsideration. This Court has jurisdic-

tion to review this case under 28 U.S.C. Section 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides in pertinent part:

“No Person shall ...be deprived of life, liberty, or

property without due process of law;”

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

“In all criminal prosecutions the accused shall

enjoy the right to. . .be confronted with the wit-

nesses against him;”

Title 21, Section 846, United States Code provides in

pertinent part:

“Any person who attempts or conspires to com-

mit any offense defined in this subchapter is pun-

ishable by imprisonment or fine. . .”

Title 21, Section 841 provides in pertinent part:

“(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or in-

tentionally--

(1) to manufacture, distribute or dispense, or

possess with intent to manufacture, distribute,

or dispense, a controlled substance. . .”

United States Code, Federal Rules of Evidence provide

in pertinent parts:

“Rule 104(a): Preliminary questions concerning .

. .the admissibility of evidence shall be deter-

mined by the Court, subject to the provisions of

subdivision (b). . .

(b): When ¢he relevancy of evidence depends

upon the fulfillment of a condition of fact, the

court shall admit it upon .. .the introduction of

evidence sufficient to support a finding of the

condition.

Rule 801(d): A statement is not hearsay if--

(2) The statement is offered against a party

and is. . .(E) a statement by a co-conspirator of a

party during the course of and in furtherance of

the conspiracy.”

United States Code, Federal Rules of Criminal Pro-

cedure provide in pertinent part:

“Rule 16(a)(1)(A): Upon request of a defendant

the government shall permit the defendant to

inspect and copy. . .any relevant. . .recorded

statements made by the defendant. . .”

STATEMENT OF THE CASE

The trial in this matter was based upon a stipulation

which included eight exhibits. The defense reserved all

legal objections to the evidence and the right to examine or

cross-examine the witnesses whose testimony was pre-

sented by stipulation. Petitioners were tried together.

Petitioners BALL and BROWNFIELD were both

charged and convicted in Count I of the Indictment of

conspiring to posvess cocaine for sale and/or distribution.

BROWNFIELD was charged and convicted in Count I

of distribution of the one-half (1/2) gram of cocaine.

BALL was charged and acquitted in Count III of posses-

sion of cocaine for sale.

BALL was sentenced to six (6) years in custody.

BROWNFIELD was sentenced to six (6) years in custody

on each count, to run concurrently, and fined twenty-five

thousand dollars, ($25,000.00) on each count, consecu-

tively.

A timely Notice of Appeal was filed, and on July 18,

1983 the United States Court of Appeals for the Ninth

Circuit affirmed the judgment of the District Court. A

timely petition for rehearing was filed and on October 18,

1983, the Court denied the petition.

On September 16, 1981, Internal Revenue Service

(IRS) Agent DWYER contacted Petitioner, JOHN

BROWNFIELD, told him that he was a financial consul-

tant who handled large sums of money and that he had a

business proposition for the appellant. The two arranged

to meet, and did, on September 19, 1981, at Los Angeles

International Airport (LAX). DWYER explained that he

had clients who needed assistance in handling large sums

of cash, and were in the import business. He invited

BROWNFIELD to Seattle.

On September 22, 1981, BROWNFIELD arrived in

Seattle, went directly to a yacht and was met by IRS un-

dercover Agent DARRELL WHITEHEAD. WHITE-

HEAD was introduced as DWYER’s partner in the finan-

cial arrangement. WHITEHEAD and DWYER repre-

sented that the yacht they were on belonged to a “client”

of theirs, and stated that the yacht was only as good as the

amount it could haul. The clear inference the agents meant

to convey, and did, was that they were dealing in illegal

products.

dealing in illegal products.

DWYER spoke with BROWNFIELD on the phone

September 16, Septeinber 22, and September 29, 1981,

met wth him at LAX on October 2, 1981, and spoke with

him again on the phone on November 5, 1981. All ofthese

conversations were tape-recorded but were not

made available to the petitioners.

On December 2, 1981, DWYER contacted BROWN-

FIELD in Los Angeles and arranged a meeting (the tape of

this call was withheld) for that evening. On the evening of

December 2, 1981, BROWNFIELD met DWYER at the

bar of the Century Plaza Hotel in Los Angeles. DWYER

and BROWNFIELD first began discussing a way to set up

a bank in or start to handle DWYER’s alleged cash problem.

Appellant stated that he had somebody research the

problem and the cash could be taken care of in a legal

manner. The conversation then turned to a problem the

appellant was having due to a lack of “product”. DWYER

stated that WHITEHEAD had just returned from five

weeks in South America. DWYER asked if appellant was

proposing a joint venture, to which appellant replied that

something could be worked out. DWYER asked “what are

we talking about, grass or coke?” Appellant replied,

“Weed.” DWYER understood “weed” to mean marijuana.

At this time, WHITEHEAD and IRS undercover agent

RICHARD AARONSON entered the bar and sat

with DWYER and the appellant. AARONSON was intro-

duced by DWYER as “one of the people who works for us

in Los Angeles.” After some conversation, BROWN-

FIELD explained to WHITEHEAD that “his people were

short of product.” There was some discussion about a

“joint venture,” but WHITEHEAD did not commit him-

self. The subject of cocaine was never discussed at this

meeting. However, it was WHITEHEAD’s contention

that appellant wanted to deal in cocaine, even though

WHITEHEAD was aware that appellant told DWYER he

was interested in marijuana. WHITEHEAD based this

belief on a “gut feeling.” The Agents attempted to tape

this conversation but the recording device malfunctioned

according to the government.

On December 16, 1981, BROWNFIELD went to

WHITEHEAD’s hotel room in Los Angeles for a pre-ar-

ranged meeting. The two were set to go meet others for

lunch. The entire meeting was tape-recorded. Before

leaving for the restaurant, BROWNFIELD and WHITE-

HEAD first began talking about the “deal” which was to

be arranged. The following conversation took place:

WHITEHEAD (W): I’ve talked to him (DEA agent

MORGAN, posing as the smuggler cli-

ent) at length, but I don’t know what his

approach is going to be to you.

BROWNFIELD (B): Okay, but what I’m saying to youis

ah -- there may come a time in point

when -- I don’t know the volume

your (sic) doing or what you’re talk-

ing about.

W: We’re going to do .. .I’m assuming, I’ve

never asked you. I’m assuming your

(sic) doing coke.

(Emphasis supplied).

To which BROWNFIELD appeasingly replied, “Ya.

Right.” WHITEHEAD was the first person to suggest the

commodity as cocaine. WHITEHEAD testified that he

felt that BROWNFIELD was puffing when he mentioned

365 kilograms, and he also felt that there were incon-

sistencies in things that BROWNFIELD said.

WHITEHEAD went on to speak about the person who

BROWNFIELD was to meet at the restaurant. WHITE-

HEAD explained that this person could “handle a lot of

stuff.” BROWNFIELD felt that the cocaine deal was a

condition of the bank deal they had discussed earlier

WHITEHEAD was unclear as to the positioning of the two

deals. When talking of the man BROWNFIELD would

meet, WHITEHEAD stated, “If he feels good with you,

you won’t have a problem.”

WHITEHEAD complained that his client felt uncom-

fortable because he was selling, and that he vouched for

BROWNFIELD. BROWNFIELD asked if WHITE-

HEAD would feel better if he sold some first. WHITE-

HEAD declined, but told BROWNFIELD to provide a

small amount.

While en route to the restaurant, BROWNFIELD told

WHITEHEAD that he had done some further research

into WHITEHEAD’s alleged cash problem. BROWN-

FIELD explained that by setting up a class “B” bank, the

money could legally be taken care of

The two arrived at the Casa Escobar restaurant in

Marina Del Rey and were met by AARONSON. BROWN-

FIELD was introduced to DEA undercover agent MOR-

GAN. From the previous conversation between BROWN-

FIELD and WHITEHEAD, he knew MORGAN to be the

person with whom he would be dealing. He first explained

to the group the details of setting up a class “B” bank in

order to handle their large amount of cash. He then went

on to state that he was willing to set up any type of transac-

tion so that the group would feel comfortable with him.

WHITEHEAD then turned the discussion to a cocaine

deal that might be set up. Most of the discussion took

place between BROWNFIELD and MORGAN. There

was a great deal of haggling between the two regarding

price, quantity, quality, and method of delivery and pay-

ment. It was agreed that 20 kilograms could be purchased

for one miilion dollars. But the quality of the cocaine was

to meet approval before the deal would be consummated.

MORGAN stated that if he liked the quality, a deal would

be struck. Otherwise, BROWNFIELD was free to “walk”

and say “good-bye.”” MORGAN felt that if the quality was

approved by BROWNFIELD, the two could come to a

meeting of the minds. When BROWNFIELD was asked if

he had to deal with other people to get approval, he stated,

“T am my own people. . .I don’t have to talk to anybody.”

After more discussion, WHITEHEAD and BROWN-

FIELD left to go back to WHITEHEAD’s hotel. BROWN-

FIELD mentioned that he thought DWYER was going to

be at the lunch to discuss the bank deal. He was concerned

because he wanted to make sure the bank deal was

handled properly. He then stated that he was under the

impression that the group was interested in dealing in

marijuana or hashish.

WHITEHEAD was instructed by his superiors to “fol-

low-up” on the possibility of BROWNFIELD providing a

sample of cocaine. Thus, on December 21, 1981, when

WHITEHEAD next spoke with him, WHITEHEAD told

BROWNFIELD that he should provide MORGAN with a

sample. WHITEHEAD said that it would make MOR-

GAN happy, and MORGAN would then stop bothering

WHITEHEAD. BROWNFIELD agreed.

WHITEHEAD and BROWNFIELD next spoke by

phone on December 31, 1981. BROWNFIELD asked

WHITEHEAD how the bank deal was coming along.

WHITEHEAD replied that he had spoken to some people

and that they were all receptive to the idea. WHITE-

HEAD did not foresee any problems in arranging the fi-

nancing to start the bank. WHITEHEAD told him that his

people would be willing to provide $5,000,000 to finance

the bank.

On January 6, 1982, BROWNFIELD and MORGAN

met at the Cannery Row Restaurant in Newport Beach,

California. The meeting was tape-recorded. The two dis-

cussed plans for the cocaine deal BROWNFIELD stated

16

that he would be alone. After much discussion, MORGAN

proposed a plan that was agreeable to BROWNFIELD.

For this plan to work, MORGAN told him that BROWN-

FIELD would need to bring a companion. MORGAN

proposed that he, WHITEHEAD, and BROWNFIELD go

to a place where the money was located. There, MORGAN

would stay with BROWNFIELD’s companion and count

the money while WHITEHEAD and BROWNFIELD

would go test cocaine. BROWNFIELD emphatically stat-

ed that if the cocaine was not up to high quality, there

would be no deal. BROWNFIELD agreed to provide

MORGAN with a sample of cocaine to make sure that

MORGAN knew the quality of cocaine appellant expect-

ed.

BROWNFIELD also told MORGAN that he was

“shocked” when he first learned that MORGAN wanted to

deal in cocaine. He felt that DWYER only contacted him

to set up the bank deal. He further stated that when he saw

the yacht in Seattle, he thought WHITEHEAD’s group

might be dealing in marijuana.

On the next day, January 7, 1982, MORGAN and

BROWNFIELD met at Charley Brown’s restaurant in

Rosemead, California. The meeting was tape-recorded.

MORGAN told him that if, at the time of the deal, the co-

caine appeared weak, the two could negotiate. BROWN-

FIELD went on to complain to MORGAN that WHITE-

HEAD was too intense and was pressuring to get the deal

complete. BROWNFIELD said that he did not like the

1

way WHITEHEAD “pumped him up.” MORGAN coun-

tered that he had been “pumped up” by BROWNFIELD.

MORGAN explained that WHITEHEAD was working on

a commission basis and that he was trying to “feel out”

BROWNFIELD. BROWNFIELD admitted that he too

was trying to “feel out” MORGAN. After tlie meeting, the

two went to BROWNFIELD’s car where he gave MOR-

GAN an envelope containing cocaine. This was the test

sample BROWNFIELD was told to provide. The sample

was later determined to contain .528 grams of cocaine of

89% purity.

MORGAN and BROWNFIELD spoke on January 13

and January 14, 1982. It was decided that the deal would

take place on January 15, 1982.

At Noon on January 15, 1982, MORGAN and WHITE-

HEAD met BROWNFIELD at the Cannery Row Restau-

rant in Newport Beach, California. BROWNFIELD told

the two that he was having trouble raising $1,000,000

earnest money. BROWNFIELD had $500,000.00 and

proposed to purchase 10 kilograms. MORGAN wanted

him to take the entire 34 kilograms he had and sell it on a

commission basis. After some discussion, MORGAN told

him that he could purchase 10 kilograms that day and ten

the next day. Each purchase was to be for $500,000.

BROWNFIELD then left the restaurant, but returned

later that afternoon. MORGAN and WHITEHEAD fol-

lowed him in their car to an apartment complex in Santa

Ana, California. There, the three got out of their cars and

12

entered an apartment. In the apartment, BROWNFIELD

introduced MORGAN and WHITEHEAD to Petitioner

GARY S. BALL. BROWNFIELD stated that the apart-

ment had been rented for the deal.

MORGAN and BALL discussed the quality of the co-

caine to be purchased. MORGAN said that the sample he

obtained from BROWNFIELD had a melting point of 187

degrees, and the cocaine MORGAN was going to sell had a

melting point of 185 degrees. BALL complained that he

did not like to buy cocaine “sight unseen.” MORGAN

stated that he would have furnished a sample if asked.

MORGAN told BALL that he was not obligated to pur-

chase the cocaine if he did not approve of its color or

purity.

BALL then left the apartment and returned with two

briefcases. The briefcases contained money wrapped in

silver duct tape. BALL stated that one briefcase con-

tained $200,000 and the other contained $300,000.

WHITEHEAD and MORGAN unwrapped some of the

bundles and observed $50 bills and $100 bills.

At this time, it was decided that WHITEHEAD and

BROWNFIELD would go to the place where the cocaine

was kept so that BROWNFIELD could test it. BROWN-

FIELD stated that if the cocaine “looked good and tested

good,” he and WHITEHEAD would return with 10 kilos of

the cocaine and the first part of the deal would be over.

BROWNFIELD and WHITEHEAD left the apartment

and then BROWNFIELD was arrested outside of the

building.

13

Meanwhile, MORGAN and BALL stayed in the apart-

ment with the money. While there, BALL allegedly told

MORGAN that he would be handling the entire 34 kilo-

grams of cocaine. BALL also indicated that he and

MORGAN could do a lot of business at this time. WHITE-

HEAD returned and BALL was also placed under arrest.

Neither MORGAN nor any other agents had any

cocaine in their possession on January 15, 1982. MOR-

GAN testified that he did not intend to sell any cocaine to

BROWNFIELD or BALL.

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT REQUIRES ONLY A “PRIMA

FACIE” SHOWING OF A CONSPIRACY TO ALLOW

CO-CONSPIRATOR STATEMENTS TO BE INTRO-

DUCED INTO EVIDENCE AGAINST AN ALLEGED

CO-CONSPIRATOR: THIS SHOWING IS SIGNIFI-

CANTLY LESS THAN THAT REQUIRED BY OTHER

CIRCUITS. CERTIORARI SHOULD BE GRANTED

TO RESOLVE THIS CONFLICT BETWEEN THE

VARIOUS CIRCUITS.

The trial court denied Petitioner BALL’s motion to

strike the out-of-court statements of his co-defendant

14

>]

(Petitioner BROWNFIELD), and alleged co-conspirator

or to limit them to Brownfield. The statements, made

outside of Petitioner BALL’s presence, and prior to any

evidence of Ball’s involvement were thus considered as

evidence of his guilt.

One of the most complex and confusing areas of federal

criminal litigation deals with the conspiracy exception to

the hearsay rule. It is generally understood that before a

statement of an alleged co-conspirator may be introduced

against an accused, the prosecution must establish, by

evidence independent of the statement, that a conspiracy

existed, that the declarant and the defendant were mem-

bers of the conspiracy, and that the statement was in fur-

therance of the alleged conspiracy. All federal courts agree

to this formulation of the test. There is a disagreement,

however, as to the sufficiency of the evidence to establish

each part of this test. Prior to the adoption of the Federal

Rules of Evidence this court said that the preliminary

showing must be established by “substantial, indepen-

dent evidence of the conspiracy, at least enough to take

the question to the jury.” United States v. Nixon, 418

U.S. 683, 701, n.14 (1974). However, this test was quickly

outdated after the adoption of the Federal Rules of

Evidence in 1975. All the Circuit Courts, except the Ninth

Circuit, have concluded that Rule 104 of the Federal

Rules of Evidence altered the standard of proof necessary

to establish these preliminary provisions.

Perhaps the most widely cited case for this change is

United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.

1977). There, the First Circuit concluded that Rule 104(a)

governed the sufficiency of the showing to establish the

preliminary facts of the existence of the conspiracy, the

accused’s connection to it, and that a statement was in fur-

therance of it. The court held that the standard encom-

passed under Rule 104(a) was a higher standard than the

prima facie standard, that the civil standard applied. A

statement was admissible, suid the court, only “[if it is

more likely than not that the declarant and defendant were

members of a conspiracy when the hearsay statement was

made, and that the statement was in furtherance of the

conspiracy.”548 F.2d at 23.

Other Circuits, excluding the Ninth Circuit, that have

passed on this question have abandoned the prima facie

standard and adopted a more stricter standard: United

States v. Stanchich, 550 F.2d 1294, 1298 (2d Cir. 1977)

(fair preponderance); United States v. Trowery, 542

F.2d 623, 627 (3d Cir., cert. denied 429 U.S. 1104

(1976)(clear preponderance); United States v. Stroupe,

538 F.2d 1063, 1065 (4th Cir. 1976) (substantial indepen-

dent evidence); United States v. James, 590 F.2d 575,

581 (5th Cir.) cert. denied 442 U.S. 917 (1979) (substan-

tial independent evidence); United States v. Enright,

579 F.2d 980, 984-86 (6th Cir. 1978) (more likely than

not); United States v. Santiago, 582 F.2d 1128, 1133-35

16

(7th Cir. 1978)(more likely than not); United States v. Mack-

lin, 573 F.2d 1046, 1048 (8th Cir.) cert. denied 439 U.S. 852

(1978)(preponderance of evidence); United States v.

Gutierrez, 576 F.2d 269, 274 (10th Cir.), cert. denied

439 U.S. 910 (1978) (substantial independent evidence);

United States v. Haldeman, 559 F.2d 31, 118

(D.C.Cir.), cert. denied 431 U.S. 933 (1976).

The Ninth Circuit, however, has not relinquished the

prima facie test. In United States v. Fleishman, 684

F.2d 1329 (9th Cir.), cert. denied 103 S.Ct. 464 (1982),

the court said that the test for the admission of statements

required “substantial independent evidence of the exist-

ence of the conspiracy, and slight evidence of the de-

fendant’s connection with the conspiracy.” 684 F.2d at

1338. The Ninth Circuit, however, relied upon United

States v. Federico, 658 F.2d 1337, 1342, n.7 (9th

Cir.1981), for this premise. In Federico, at note 7, the

court said that “Substantial evidence is necessary to show

a prima facie case of conspiracy.” Federico, in turn, relied

upon United States v. Dixon, 562 F.2d 1138, 1141 (9th

Cir.), cert. denied 435 U.S. 927 (1976). There, the

standard was defined by stating “regarding the quantum

of evidence required, it is not settled in this Circuit that

‘substantial independent evidence, other than hearsay. .

enough to make a prima facie case’ is sufficient.”

[Original emphasis] 562 F.2d at 1141.

Likewise, in Fleishman, the Ninth Circuit relied upon

United States v. Fried, 576 F.2d 787, 793, n.7 (9th Cir.),

7

cert. denied 439 U.S. 895 (1978). In Fried at note 7 the

court specifically adopted a previously mentioned holding

in Dixon.

It is clear from the foregoing summary of cases that,

while the Ninth Circuit has maintained a prima facie

standard defining the sufficiency of evidence necessary to

establish the existence of the conspiracy, the accused’s

participation in it, and that the statement offered was in

furtherance of the conspiracy, all the other Circuits have

interpreted Rule 104(a) as governing the determination of

preliminary facts and of requiring that they be established

by a preponderance of evidence before the court may

allow the co-conspirator’s declaration to be admitted. It is

respectfully submitted that this case provides this court

with the opportunity to resolve this conflict among the Cir-

cuits and that certiorari should be granted to determine

this important question so that a uniformity of results may

be achieved throughout the nation.

II

THE DISTRICT COURT, IN DENYING, WITHOUT

HEARING OR INSPECTION, PETITIONER’S RE-

QUEST FOR AN ORDER REQUIRING THE GOVERN-

MENT TO ALLOW INSPECTION AND COPYING OF

ALL STATEMENTS BY AND BETWEEN PETI-

TIONER AND FEDERAL AGENTS DURING THE

RELEVANT PERIOD RELYING ON THE GOVERN-

MENT’S MERE ASSERTION THAT THOSE THEY

HAD CHOSEN TO WITHHOLD WERE IRRELE-

VANT, FAR DEPARTS FROM THE USUAL AND AC-

CEPTED COURSE OF JUDICIAL PROCEEDINGS.

THE COURT OF APPEALS HAS, BY ITS JUDG-

MENT, SANCTIONED THE SAME AND DECIDED

THIS ISSUE IN DIRECT CONFLICT WITH THE

APPLICABLE DECISIONS OF THIS COURT.

Rule 16 (a)(1)(A) of the Federal Rules of Criminal Pro-

cedure provides in part:

“Upon request of a defendant the government shall

permit the defendant to inspect and copy or photo-

graph: any relevant written or recorded statements

made by the defendant, or copies thereof, within the

possession, custody, or control of the government:...”

In the present case, undercover agents had been dealing

with the Petitioner BROWNFIELD since September 10,

1981. Inaddition the meetings and calls during this period

19

of time where tapes were made and copies given Peti-

tioners, Petitioner BROWNFIELD met with the under-

cover agents on September 19, September 22, and Oct-

ober 2, 1981. BROWNFIELD spoke with the agents by

phone on September 10, September 16, September 22,

September 29, November 5, and December 2, 1981. The

September 22, 1981 meeting and all of the phone con-

versations were tape-recorded. The agents made in-

vestigatory memos and notes of the September 16, 1981

and October 2, 1981 meetings.

The trial court refused Petitioners request for discovery

of the agents’ notes and the tape-recordings of these

various meetings and phone calls. The government

argued that they were irrelevant. (See Appendix which

was Stipulation Exhibit 8 at trial.) It is this ruling which

the Petitioners presently challenge.

In their opposition papers, the government contended

that they were not required to provide the requested

conversations citing United States v. Rinn, 586 F. 2nd

113 (9th Circuit, 1978). The government’s reliance on

Rinn, supra, is unfounded. In Rinn, supra, the defense

complained of the introduction of an inculpatory state-

ment at trial that was not made discoverable at pre-trial.

The court held that there was no error and relied on the

Section of Rule 16 (a)(1)(A), which pertains to statements

the government tends to offer at trial. 586 F. 2nd, at 120.

In the present case, the Defendant-Petitioner was seeking

discovery of statements which were not introduced at trial.

This demand was based on the fact that these statements

were relevant to the defense, and were in the control of the

government. Thus, the Rinn, supra, holding is inapplic-

able to the case at bar.

The trial court in the instant case not only denied the

discovery motion, it also denied a defense motion for an

evidentiary hearing to help determine the content and

relevancy of the requested statements.

Petitioner contends that the court should have at least

inquired as to the contents of the requested statements.

This would have posed a minimal burden on the govern-

ment as they freely admitted they were in possession of

the tapes and agents’ notes. Because the court did not

inquire into the threshhold question of relevance,but

instead relied upon the government’s assertion, the Peti-

tioners were denied due process of law.

That decision materially impeded Petitioners’ ability to

present both a legal and factual defense to the charges.

Without the requested material, Petitioners were unable

to provide additional evidence to establish that their

arrest was a product of a government overreaching.

Further, Petitioner BROWNFIELD was denied evidence to

argue that. he did not possess the requisite predisposition

to commit the crime and was the victim of entrapment.

It is significant that both the District Court and the

Court of Appeals, in denying the Petitioners’ argument of

outrageo is conduct by the government agents relied on a

factual finding that it was Petitioner BROWNFIELD who

first mentioned narcotics at a meeting on the evening of

December 2, 1981.

21

BROWNFIELD maintains it was the government a-

gents who first discussed a narcotics transaction. No tape

of the December 2, 1981 evening meeting exists. The

government contended that the taping equipment mal-

functioned. The only evidence in support of the govern-

ment’s position is the agents’ word.

However, a tape does exist of the phone call by the

agents to BROWNFIELD on the morning of December 2,

1981, seeking the meeting with BROWNFIELD and

explaining why. The Court sustained the government’s

refusal to allow Petitioners’ inspection and copying of that

tape accepting the government’s absurd-on-its-face asser-

tion it was not relevant.

This Honorable Court has heretofore created a federal

constitutional basis for the requirement that the govern-

ment turn over relevant material in its possession to the

defense. United States v. Agurs, 427 U.S. 97.

Petitioner asserts that a constitutional basis & criteria

must be applied to Rule 16 (a)(1)(A) of F.R. Criminal

Procedure such as was developed in United States v.

Agurs. (See III, 427 U.S. (7, 107, 96 S. Ct. 2392, 2399

F.F.)

Agurs, supra, treated the issue as a due process clause

of the Fifth Amendment analysis rather than a scope of

discovery authorized by Federal Rules of Criminal Pro-

cedure.

It is in the former vein that the error of the District Court

and the United States Ninth Circuit must be approached

and analyzed.

This Honorabie Court in United States v. Agurs,

supra, addressed the constitutional significance, if any,

of the prosecution failing to turn over materials in its

possession, pre-trial or surfacing during the trial, to the

defense absent a specific request naming the desired

material within the meaning of Brady v. Maryland 373

U.S. 83, 87 101 Ed. 2nd 215, 83 S. Ct. 1194.

This court categorized the “Brady rule” as “arguably

applying” to a “general request” for discovery of material

helpful or exculpatory to the defendant. (427 U.S. 97

107).

In the Leading decision of this Honorable Court in

Jencks v. United States, 353 U.S. 657, 669, 77 S. Ct.

1007, 1014, this Court disproved the requirement that

materials in the possession of the government first be

placed before the trial judge for the courts determination

of relevancy and materiality. Only after inspection of the

reports by the defendant and his counsel must the trial

judge determine admissability, i.e.; the evidentiary quest-

ions of inconsistency, materiality and relevancy. (See also

Goldman v. United States 316 U.S. 129, 62 S. Ct. 993,

86 L. Ed. 1322.

The government had a duty to not select and choose which

tapes and notes to turn over containing the conversations

of Petitioner and the agents during the relevant period,

but to turn all of them over.

“The purpose of the duty is not simply to

correct an imbalance of advantage, whereby the

prosecution may surprise the defense at trial

with new evidence; rather, it is also to make of the

trial a search for truth informed by all relevant

material, much of which, because of imbalance in

investigative resources, will be exclusively in the

hands of the Government.” (United States v.

Bryant, 439 F. 2nd 642, (1971), at 648).

I

THE COURT OF APPEALS HAS INTERPRETED A

FEDERAL STATUTE IN CONFLICT WITH DECIS-

IONS OF THIS COURT, AND HAS SANCTIONED

THE DISTRICT COURT‘S DEPARTURE FROM THE

ACCEPTED AND USUAL PROCEDURE OF JUD-

ICIAL PROCEEDINGS |. Y RESOLVING DOUBTS IN

EVIDENCE AND CONSTRUCTION OF PENAL STA-

TUTE AGAINST THE PETITIONERS.

With minimal discussion, the Court of Appeals found the

evidence against Petitioner sufficient to support the

conviction of conspiracy to “purchase” cocaine.

Overlooked by the Appeals Court is the law in its

entirety. There is no criminal sanction or prohibition for

either purchase or conspiracy to purchase a controlled

substance. The crime does not take place until two (2)

people decide to possess the controlled substance, and

distribute and/or sell it.

It is well established that penal statutes are to be strictly

construed (Federal Communications Commission v.

American Broadcasting Company, 347 U.S. 284, 296),

and that one is not to be subjected to a penalty unless the

words of the statute plainly impose it (Kemple v. Tiffin

Savings Bank, 197 U.S. 356, 362).

It is apparent that Congress wanted to avoid the legal

difficulties of attempting to show that two parties agreed

tc make a purchase, and purposely omitted that word

and act, even though many state statutes contain such

prohibitation. Congress did not want prosecutions of the

crime to be mired in the laws of contracts and the validity

of the buy-sell agreement.

In the present case, the Petitioners never agreed to

possess cocaine without first examining the quality and

cosmetic appearance of the substance. The record clearly

indicates that the Petitioners were to satisfy two (2)

conditions before the agreement to possess was to be

reached. First, Petitioner BROWNFIELD was to dem-

onstrate his ability to make a purchase by exhibiting five

hundred thousand dollars ($500,000.00). This was done.

Second, the agents were to demonstrate their ability to

perform by showing Petitioner BROWNFIELD cocaine of

high quality and appearance. It was only after this

condition was met that the two (2) Petitioners would agree

whether to possess or not. In fact, Agent MORGAN told

the Petitioners that they were not obligated to purchase

any cocaine unless the pair agreed that the contraband

met their approval with respect to quality and appearance.

This condition was never met, and as such, the two (2)

Petitioners never had the opportunity to agree to possess

the cocaine.

BALL was BROWNFIELD’s partner in some legiti-

mate businesses giving innocent reason for telephone

calls. The Court resolved all reasonable inferences of the

evidence and in the construction of the law against Peti-

tioners.

IV

THIS HONCRABLE COURT SHOULD GRANT

CERTIORARI TO CLARIFY ITS DECISION IN

HAMPTON V. UNITED STATES, 425 U.S. 484,

(1976), CONCERNING GOVERNMENTAL OVER-

REACHING, (OUTRAGEOUS GOVERNMENTAL

CONDUCT), AND TO RESOLVE AN APPARENT

CONFLICT IN DECISIONS BETWEEN THE UNIT-

ED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT AND OTHER CIRCUITS.

Petitioner maintains that the fede:al agents’ conduct

and involvement in the crime for which he was convicted

wes so overreaching as to compel reversal as a matter of

due process of iaw. The Ninth Circuit adopted this argu-

ment in Greene v. United States, 454 F.2nd 783 (9th-

Circuit, 1971). In Greene, supra, the court reversed

convictions on the ground that government agents resort-

ed to impermissible misconduct in manufacturing the

26

crime, even though it was found that the defendants had

the predisposition to commit the offense.

This Honorable Court has also recognized such an argu-

nent. In United States v. Russell, 411 U.S. 423 (1973)

this court suggested in dictum:

We may some day be presented with a situa-

tion in which the conduct of law enforcement

agents is so outrageous that due process prin-

ciples would absolutely bar the government from

invoking judicial processes to obtain a convic-

tion. . .

411 U.S. at 431-432.

This Honorable Court next addressed the issue in

Hampton v. United States, 425 U.S. 484 (1976). Eight

(8) justices took part in the plurality opinion. Two (2) of

the justices declined to address the argument, three (3)

justices of the plurality took the position that such a right

did not exist while five (5) justices decided that the right

did exist.

Petitioner contends that in the present case, the govern-

ment’s conduct went far beyond investigation and in such

a way as to deprive him of his due process of law.

In United States v. Twigg, 558 F.2nd 373 (3rd Cir-

cuit, 1978), the court found that because the crime was

conceived and contrived by government agents, reversal

was warranted; 558 F.2nd at 380. In the opinion, the court

examined the Russell and Hampton opinions, as well as

several District Court opinions.

These cases, the court found, examined two principles

of law: (1)Whether under any circumstances the govern-

ment should be able to provide, or pretend to provide,

contraband or instrumentality of crime to investigate nar-

cotics offenses; and (2) If they are so allowed, under what

circumstances. The Twigg, court found that cases are

now settied that it is permissible for the government to

provide, instrumentalities to infiltrate and investigate

existing criminal activity. However, the Twigg court

did not read those cases to stand for the proposition that

such a distasteful and disturbing tactic could be used to

create a criminal activity to apprehend someone they felt

to have been a criminal. In short, the cases consistently

held to the old adage: “It is not the jewel thief that is in-

vestigated, it is the theft of the jewels.”

In determining that the Twigg facts warranted reversal,

the court stated that:

The conduct on the part of the government

agents generated new crimes by the defendant

merely for the sake of pressing criminal charges

against him, when, as far as the record reveals, he |

was lawfully and peacefully minding his own af-

fairs.

558 F. 2nd at 380.

The present case is one in which the government

approached Petitioner BROWNFIELD and generated a

new crime. When the agents approached BROWNFIELD

in September of 1981, they wanted to work out a money

laundering deal. The government had no reason to believe

that BROWNFIELD was engaged in criminal activity, and

there is no evidence that in fact they did so believe.

As in Twigg, it was the agents wio created the crime

herein. But, unlike Twigg, it took three (3) attempts be-

fore a crime was finally brought about. First, the govern-

ment sought to create a money laundering scheme. When

Petitioner came up with a legal method of laundering the

money, the government ventured into narcotics. But when

Petitioner thought the agents were interested in dealing

marijuana, the agents instead told Petitioner that they

wanted a cocaine transaction, in which they, the govern-

ment, would provide cocaine, they would smuggle in, and

Petitioner would be their distributor.

On the January 7, 1982 meeting, it is clear that

Petitioner had no existing operation. He was borrowing

money for some of the contraband, and the rest would be

“fronted” to him by MORGAN, while Petitioner would es-

tablish an organization for MORGAN. It was thus tacitly

clear to the government by January 7, 1982, despite

BROWNFIELD’s false claims and puffing on December

16, 1982, that no organization in fact existed of which Peti-

tioner was a part, and he was not then involved in criminal

conduct. Ps

The Third Circuit was guided by and quoted extensive-

ly from this Court’s opinions in United States v. Rus-

sell, supra, and United States v Citing Russell, supra,

the Third Circuit said:

“The Court went on to make an important

point not present here -- that the defendant

was an active participant in an illegal drug manu-

facturing enterprise which began before the

government agent appeared on the scene. . .Id. at

436, 93 S.Ct. at 1645.” (U.S. v. Twigg, supra,

at 377)

The Court of Appeals in its decision relied in its finding

of fact that after some three (3) months of contact and dis-

cussions BROWNFIELD suggested the activity be the

distribution, too, rather than strictly the finance side.

The government limited the scope of their charges

against Petitioners to the latter issue and time period. The

thrust of the Ninth Circuit’s decision in this case would

limit the consideration of the conduct of agents to on'y the

indicted offenses, rather than adopt the Third Circuit’s

rule in Twigg, supra, which would consider the entire in-

volvement of the agents with the person charged and their

involvement in suggesting criminal activity when none

existed.

CONCLUSION

The Court should grant Certiorari in this case to re-

solve the issues where the Court of Appeals for the Ninth

Circuit has entered a decision of law in conflict with other

Circuits that need to be resolved, to wit: (1) The evidence

necessary to establish a person’s involvement in a conspir-

acy, in order to introduce an alleged co-conspirator’s

statement against him, and (2) the factors and course of

conduct to be considered in assessing the actions of feder-

al investigators as to whether they constitute outrageous

conduct mandating dismissal of charges under the due

process clause.

The Court should grant Certiorari in this case in order to

clarify and settle the rule of law under U.S. v. Hampton,

supra, especially in light of the growing federal operations

known as “reverse stings’’, so that both the public and the

agents themselves know the limits to the involvement and

approaches agents can make before they are creating

crime instead of investigating it.

The Court should grant Certiorari in this case because

the Court of Appeals itself has departed from the usual

procedures of judicial process, and has sanctioned such

activity by the District Court, by interpreting evidence

and the construction of a statute against the Petitioners

where there are reasonable interpretations construable in

favor of them. Such decisions are also in conflict with de-

cisions by this Court.

In the same light this Court should grant Certiorari

regarding the access to evidence in the government’s pos-

session containing statements made by Petitioner to fed-

eral agents during the course of events relevant to the pro-

ceedings in which they are charged, which the defendants

claim would aid their defense. At least, the Court should

require a hearing before denial rather than allow the rule

of law to stand in the Ninth Circuit that the government

has a right to pick and choose what it wants to provide a de-

fendant without judicial oversight.

Respectfully submitted,

Michael D. Nasatir

Member of the Bar, U.S. Supreme Court

Alan M. May

Kevin E. Robinson

Roger S. Hanson

Member of the Bar, U.S. Supreme Court

Attorneys for Petitioner

STATEMENT OF RELATED CASES

Pursuant to Rules of the United States Supreme Court,

Appellant knows of no cases that are related to this appeal

which are now pending before this court.

DATED: December 12, 1983.

Alan M. May

Attorney for Appellants

APPENDIX

ORDER DENYING PETITION FOR REHEARING

WITH SUGGESTION FOR HEARING EN BANC

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 82-1655

Appellee,

DC No. CR 82-95-RJK

Vv.

GARY S. BALL,

Appellant.

UNITED STATES OF AMERICA,

No. 82-1658

Appellee,

DC No. 82-95-RJK

Vv.

| ORDER

JOHN HANNA BROWNFIELD,

Appellant.

FILED

OCT 18 1983

PHILLIP B. WINBERRY

CLERK, U.S. COURT OF APPEALS

Appeal from the United States District Court

for the Centra! District of California

Robert J. Kelleher, District Judge, Presiding

Before: CHAMBERS, SKOPIL, and FARRIS,

Circuit Judges.

The panel has voted to deny the petitions for rehearing

and to reject the suggestions for rehearing en banc.

The full court has been advised of the en banc sugges-

tion, and no judge of the court has requested a vote on it.

The petitions for rehearing are denied, and the sugges-

tions for rehearing en banc are rejected.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

Jul 18 1983

PHILLIP B. WINBERRY

CLERK, U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

vs.

xARY S. BALL,

Defendant-Appellant.

37

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

JOHN HANNA BROWNFIELD,

Defendant-Appellant.

No. 82-1655

DC No. CR 82-95-RJK

No. 82-1658

DC No. 82-95-RJK

MEMORANDUM

Appeal from the United States District Court

for the Central District of California

Robert J. Kelleher, District Judge, Presiding

Argued and submitted June 8, 1983

Before: CHAMBERS, SKOPIL, and FARRIS, Circuit

Judges

Brownfield challenges his conviction for conspiracy to

possess and distribute cocaine, in violation of 21 U.S.C. §

846, and his conviction for distribution of cocaine, in

violation of 21 U.S.C. § 841. Ball challenges his con-

iction for conspiracy to possess and distribute.

ISSUES

Brownfield makes the following claims:

(1) The trial court erred by refusing appellant’s request

for discovery of statements made to government agents.

(2) There was insufficient evidence to support his con-

viction for conspiracy.

(3) He was deprived of due process because of outrageous

government conduct.

(4) He was entrapped.

Ball argues:

(1) There was insufficient evidence to support his con-

viction.

(2) The government was guiltv of outrageous conduct.

(3) The trial court erred in denying his motion to

suppress.

(4) The trial court erred by intervening in the exam-

ination of a prosecution witness.

(5) The trial court erred by denying his motion for

severance.

DISCUSSION

A. Brownfield.

(1) Refusal of discovery.

The conspiracy with which this case is concerned took

place between December 16, 1981 and January 15, 1982.

For several months prior, however, government agents

operating undercover had been meeting with Brownfield.

During these meetings numerous conversations involving

Brownfield were taperecorded. Discussion of drug deal-

ing first occurred on December 2, 1981. Brownfield

argues the district court erred when it refused his motion

to compel discovery of pre-December 2 recordings.

Under Fed.R.Crim.P. 16(a)(1)(A), a defendant is en-

titled to production of “any relevant written or recorded

statements made by the defendant . . . within the possess-

ion... of the government... .” The government should

disclose any statement made by the defendant that “may

be relevant to any possible defense or contention that the

defendant might assert.” United States v. Bailleaux,

685 F.2d 1105, 1114 (1982)(emphasis added). Brown-

field argues that the statements are relevant to his de-

fenses of entrapment and outrageous government conduct

in that they reveal the course of relations between the

government and defendants during the period leading up

to the criminal activity for which he was convicted.

We need not decide whether the district court abused

its discretion in refusing Brownfield’s discovery motion.

Even if it did, Brownfield was not prejudiced. The record

clearly indicates that Brownfield initiated discussion of

narcotics on December 2, 1981. He said that “his people”

had a problem, that their “sources” in Miami were

catching heat and had dried up, and that they were short of

“product.” Brownfield argues that he was “lured” into

criminal activity “created” by the government. The

record belies such assertions. The December 2, 1981

conversations clearly indicated that it was Brownfield who

turned the relationship towards narcotics dealing. The

government did no more than make available an opportun-

ity for appellants to exercise their predisposition for

criminal drug activity. The content and context of the

December 2, 1981 conversations negate the assertions by

Brownfield of harm flowing from lack of access to state-

ments made by him in his early dealings with government

agents.

(2) Sufficiency of the evidence.

41

A conviction will be upheld against a claim of insuffic-

iency if any rational trier of fact, viewing the evidence in

the light most favorable to the government, could find the

essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The evidence against Brownfield of a conspiracy to

purchase cocaine is overwhelming. It includes many

discussions with federal agents concerning his partner, the

records of phone calls between Brownfield and Ball, and

his production of Ball with over a half-million dollars.

There is ample evidence that Brownfield and Ball had

agreed to purchase commercial quantities of cocaine, and

Brownfield’s assertions to the contrary border on the

frivolous.

(3) Entrapment.

Entrapment is available as a defense “when the Govern-

ment’s deception actually implants the criminal design in

the mind of the defendant. ...”” United States v. Russell,

411 U.S. 423, 436 (1973). Ifa defendant is predisposed to

engage in criminal activity the defense of entrapment is

not available. Hampton v. United States, 425 U.S. 484,

490 (1976).

This court has identified a number of factors to be con-

sidered in determining whether the defendant was a

person otherwise innocent in whom the government im-

planted the criminal design.

“While none of the factors alone indicates either

the presence or absence of predisposition, the

most important factor, as revealed by Supreme

Court and other decisions, is whether the de-

fendant evidenced reluctance to engage in crim-

inal activity which was overcome by repeated

Government inducement.”

United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336

(9th Cir. 1977), cert. denied, 436 U.S. 926 (1978).

Brownfield evidenced no reluctance to enter into a nar-

cotics transaction and there was no need for the govern-

ment to repeatedly induce him to enter into criminal drug

activity. Brownfield originated discussions of drug deal-:

ing. He was clearly predisposed to drug trafficking. There

was nc entrapment.

(4) Outrageous government conduct.

This court has recognized the availability of a defense of

outrageous government conduct when the government

activity complained of reaches extremes that are out-

rageous or grossly shocking. United States v. Tavel-

man, 650 F.2d 1133, 1140 (9th Cir. 1981), cert. denied,

455 U.S. 939 (1982). Nothing that the government has

done in this case is so extreme or objectionable as to

implicate due process concerns. The government’s parti-

cipation in the events here, if objectionable at all, are less

so than in Tavelman, supra, where we found no out-

rageous conduct.

B. Ball

(l) Sufficiency of the evidence.

Ball’s appearance with over $500,000 in cash at the

apartment where Brownfield had promised his partner

and he would conduct their purchase of cocaine identified

Ball, even ignoring the other evidence, as one with whom

Brownfield had agreed to conduct illegal activity. There

was no lack of evidence to support Ball’s conspiracy

conviction.

(2) Outrageous government conduct.

Ball’s argument fails for the same reason as Brown-

field’s. The record simply discloses no government be-

havior which can be termed “outrageous.” Any errors in

information presented to the grand jury were minor in

nature. Moreover, Ball has not claimed that the govern-

ment deliberately misled the grand jury or otherwise

proceeded in bad faith.

(3) Motion to suppress.

Subsequent to Ball’s arrest a warrant was procured and

his home was searched for further evidence of drug

trafficking. We have previously approved warrants which

were based on the inference that suspected drug dealers

would have evidence of their illegal activities at their

homes. See United States v. Valenzuela, 596 F.2d 824,

828-29 (9th Cir.), cert. denied, sub nom. 441 U.S. 965

(1979); United States v. Spearman, 532 F.2d 132, 133

(9th Cir. 1976). The affidavit accompanying the appli-

cation for the warrant contains factual assertions per-

mitting the inference that his home would likely contain

damaging evidence. The search warrant was not de-

fective.

(4) Intervention in witness examination.

Ball’s assertion that the trial judge impermissibly

intervened in the examination of a witness is meritless.

Not only is questioning by a trial jue ge proper, Spindler

v. United States, 336 F.2d 678 (9th Cir. 1964), cert.

denied, 380 U.S. 909 (1965), but Ball has failed to allege

any harm flowing from the trial judge’s questioning.

(5) Motion for severance.

Severance motions are addressed to the sound dis-

cretion of the trial court and separate trials need not be

ordered “unless a joint trial is manifestly prejudicial.”

United States v. Donaway, 447 F.2d 940, 943 (9th Cir.

1971). Areview of the record, plus the fact that this was a

trial to the court, convinces us there was no error in the

denial of severance. |

CONCLUSION

The district court is AFFIRMED.

45

FILED

AUG 31 1982

CLERK, U.S. DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

BY DEPUTY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

No. CR 82-95-RJK

v.

JOHN HANNA BROWNFIELD,

GARY S. BALL,

Defendants.

MEMORANDUM OF DECISION

AND ORDER

This case having come before the Court upon the de-

fendants’ motion to dismiss, being renewed on the day of

trial, and also for trial before the Court sitting without a

jury, each defendant being present personally and by his _

attorney of record, the case proceeded to trial and was

thereafter submitted for decision by the Court.

Most of the facts in the case were presented to the Court

pursuant to stipulation in written form. By the terms of the

stipulation, it was agreed that certain witnesses were

deemed to have been sworn and testified in accordance

with the written submissions, subject to cross-examina-

tion by the adverse parties, all of which was done.

The Court finds that the evidence of the commission of

the crime of conspiracy was overwhelming as to the de-

fendant Brownfield and was more than ample as to the

defendant Ball. The defendants’ contention was that the

evidence admitted as to one co-conspirator’s statements

against the other should have been excluded on the

ground that there was a lack of independent evidence of

the existence of the conspiracy. As to defendant Ball,

ground, and, when produced by Ball, showed evidence of

the existence of the conspiracy by reason of various

admissions on the part of Ball as to his criminal associa-

tion with Brownfield and his familiarity with the details of

the conspiratorial purpose, as previously disclosed by

Brownfield in his conversations with the undercover

agent. In addition, the evidence is clear that the money

produced by Ball was the very same money to which

Brownfield had previously referred in his statements to

the agent that it was money that was buried beneath the

ground, and when produced by Ball, showed evidence of

mud and other indications that it came from some dug-up

place.

47

The Court finds that it was wholly clear that each

defendant was fully aware of, and voluntarily participated

in, the illicit plan to possess cocaine with intent to distri-

bute it. The meetings and conversations between the

agents and the defendants, and the aborted purchase plan

of ten kilograms of cocaine, demonstrate first that there

was on the part of the defendants a conspiracy to engage in

the illegal trafficking in cocaine, and the amount of ten

kilograms amply establishes that it was a transaction in

which there was an intent to distribute the cocaine.

The Court finds that defendant Brownfield’s contention

that he was entrapped to be wholly unmeritorious. It is

abundantly clear that he had at the outset, and continued

to have, a predisposition to commit the violations of law

which were involved here, including the possession and

distribution of cocaine. As an adjunct to their entrapment

defense, the defendants assert that there ought to be a

finding by the Court that the conduct of the government

was so outrageous as to preclude conviction. The Court

finds, not only that the conduct was not “so outrageous,”

but indeed was not outrageous at all or in any respect. It

constituted nothing more than the affording to the defend-

ants of an opportunity to consummate their illegal plan.

Accordingly, the Court finds defendant Brownfield

guilty as to Counts One and Two. The Court finds defend-

ant Ball guilty as to Count One.

cae

The Court finds that Count Three and its charges

therein against defendant Ball for possession of cocaine

are insufficiently supported by the evidence, and hence it

is ORDERED that there be entered as to Ball, and as to

Count Three, a judgment of acquittal.

Accordingly, itis ORDERED thatjudgment be entered

as to each defendant in accordance with the findings

herein set forth and in accordance with this Order of the

Court.

The Clerk shall send, by United States mail, a copy of

this Memorandum of Decision and Order to counsel for

the parties.

DATED: August 3, 1982.

ROBERT J. KELLEHER

United States District Judge

U. S. Department of Justice

SST:RLB:RJP:ban

(213) 688-2699

United States Attorney

Central District of California

United States Courthouse

312 North Spring Street

Los Angeles, California 90012

April 8, 1982

Michael D. Nasatir, Esq.

9911 West Pico Boulevard

Suite 1000

Los Angeles, California 90035

Michael McDonnell, Esq.

440 East La Habra Boulevard

La Habra, California 90631

Re: United States v. John Hanna Brownfield, et al.

Dear Counsel:

Please find enclosed additional discovery in the above

case. At this time it is the government’s intention to not

call Internal Revenue Service Special Agent Fran Dyer as

a witness in the above case. Attached is a discovery

summary of tape recordings and reports prepared con-

cerning the various contacts defendants Brownfield and

Ball had with undercover agents in this case. It is the

government’s position that Brownfield’s statements in

meetings with Special Agent Dyer about money launder-

ing are not discoverable. See United States v. Rinn

which is cited in our opposition to your discovery mo-

tions.

The items designated by (**) are hereby enclosed.

Very truly yours,

STEPHEN S. TROTT

United States Attorney

ROBERT J. PERRY

Assistant United States Attorney

Controlled Substance Unit

Enclosure

DISCOVERY SUMMARY

Legend:

*: distributed 2/18/82

**: distributed 4/9/82

***: not discoverable

51

I. UNDERCOVER MEETINGS AND EXECUTION

1.9/19/81

Reports:

2. 9/22/81

Tapes:

3. 10/2/81

Reports:

4. 12/2/81

Reports:

OF SEARCH WARRANT

Meeting at LAX; Special Agent Dyer

and Brownfield. Not recorded.

Memo by Dyer dated 9/20/81 (***)

Notes by Dyer mis-dated 7/19/81 (***)

Meeting in Seattle; Special Agent Dyer,

Special Agent Whitehead, and Brown-

field.

IRS tapes 3A and 3B - recording of car

conversations (*)

IRS tape 4 - recording on boat (*)

IRS tape 5 - recording on boat (same

conversation as IRS tape 4, but recorded

off transmitter) (*)

Meeting at LAX; Special Agent Dyer and

Brownfield. Not recorded.

Memo (handwritten) by Dyer dated

10/5/81 (***)

Notes by Dyer dated 10/2/81 (***)

Meeting at Century Plaza Motel bar;

Special Agent Dyer, Special Agent

Whitehead, Special Agent Aaronson,

Brownfield, Joleen.

Not recorded due to equipment mal-

function.

Memo (handwritten) by Dyer dated

12/2/81 (**)

5. 12/16/81

Tapes:

Reports:

6. 1/6/82

Tapes:

Reports:

7. 1/7/82

Tapes:

Reports:

Memo (handwritten) hy Whitehead

dated 12/2/81 (**)

Memo by Special Agent Reimer regarding

recorder malfunction (**)

Meeting at Sheraton La Reina Hotel;

Special Agent Whitehead and Brown-

field; travel to Casa Escobar Restaurant,

Marina Del Rey to meeting with Special

Agent Morgan and Special Agent Aaron-

son. Tape recorded.

IRS tapes 10A and 10B (*)

DEA tapes 1A and 1B (*)

DEA 6 by Morgan dated 1/5/82 (*)

Meeting at Cannery Restaurant, New-

port Beach; Special Agent Morgan and

Brownfield. Tape recorded.

DEA tapes 2A and 2B (*)

DEA 6 by Morgan dated 1/11/82 (*)

DEA 6 by Nance dated 1/7/82 (*)

Meeting at Charley Brown’s Restaurant,

Rosemead; Special Agent Morgan and

Brownfield. Tape recorded.

DEA tapes 3A and 3B (*)

DEA 6 by Morgan dated 1/14/82 (*)

DEA 6 by O’Connor dated 1/27/82 (*)

DEA 7 by Buer dated 1/12/82 (*)

8. 1/15/82

Reports:

9. 1/19/82

Reports:

Meeting at apartment in Santa Ana;

Special Agent Whitehead, Special Agent

Morgan, Brownfield, and Ball. Not tape

recorded.

Memo by Whitehead dated 1/15/82

(**) DEA 6 by Morgan dated 1/22/82

(*) DEA 6 by O’Connor dated 1/27/82(*)

Execution of search warrant at

Knollwood.

DEA 6 by Nance dated 2/4/82 (*)

DEA 7 by Buer dated 1/25/82 (*)

II.

UNDERCOVER TELEPHONE CONVERSA-

TIONS

IRS Tape 6 by Special Agent Dyer. Includes unsuc-

cessful attempts to reach Brownfield by telephone on

9/9/81, 9/10/81, 9/16/81; conversations with Brown-

field on 9/10/81, 9/16/81, and 9/22/81 (***)

IRS Tape 7 by Special Agent Dyer. Includes unsuc-

cessful attempts to reach Brownfield by telephone on

10/1/81, 16/28/81, 11/4/81, 11/25/81, 11/30/81,

12/1/81; conversations with Brownfield on 9/29/81,

11/5/81.(***)

IRS Tape 8 by Special Agent Dyer and Whitehead.

Calls of 12/7/81, 12/8/81, 12/11/81. (**)

IRS Tape 9 by Special Agent Whitehead. Call to

Brownfield on 12/16/81. (**)

IRS Tape 11 by Special Agents Whitehead and Dyer.

Calls of 12/21/81, 12/28/81, 12/31/81, 1/5/82. (**)

IRS Tape 12 by Agent Whitehead. Calls to Brown-

field on 1/8/82 (**)

DEA Tape 4A by Agent Morgan. Conversations with

Brownfield on 1/5/82 and 1/7/82. (*)

DEA Tape 4B by Agent Morgan. Conversations with

Brownfield on 1/11/82. (*)

DEA Tape 4C by Agent Morgan. Conversations with

Brownfield on 10/10/82 and 1/14/82. (*)

PROOF OF SERVICE

STATE OF CALIFORNIA )

) ss:

COUNTY OF RIVERSIDE )

I am a citizen of the United States and a resident of the

County aforesaid; I am over the age of eighteen years and

not a party to the within entitled action; my business ad-

dress is 4075 Agate Street, Riverside, California 92509.

On December 12, 1983, I served the within PETITION

FOR A WRIT OF CERTIORARI on the interested par-

ties in said action, by placing a true copy in each of two

(2) sealed envelopes, with postage thereon fully prepaid,

in the United States mail at San Bernardino, California,

addressed as follows:

REX LEE

Solicitor General of the United States

Department of Justice Alexander H. Williams, I

Room 5143

Acting U.S. Attorney

312 N. Spring Street

Los Angeles, California 90012

Washington, D.C. 20530

I certify under penalty of perjury that the foregoing is

true and correct.

EXECUTED on December 12, 1983, at Riverside, Calif-

ornia.

JACK GALLAGHER