Petition — Taylor v. United States

FILED |

83 yl 1095 JAN 3 tag4

NDER L. STEVAS.,

CLERK

in the

Supreme Court

of the

United States

No. USCA

JOHN TAYLOR,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

ROBERT C. STONE, P.A.

Center Court Bldg. Suite 400

2450 Hollywood Blvd.

Hollywood, Florida 33020

in the

Supreme Court

of the

United States

No. USCA

JOHN TAYLOR,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

The Petition, JOHN TAYLOR, respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the Eleventh Circuit Court of Appeals

entered in the proceeding on September 8, 1983. Petition

for Rehearing filed therein was denied November 4,

1983.

QUESTIONS PRESENTED

1. Whether evidence adduced by the Government

at trial which shows the presence of a criminal defendant

charged with conspiracy at the scene of the substantive

crime charged, the generalized association of that

Defendant with his alleged co-conspirators, and the

Defendant's knowledge that an illegal transaction was

taking place, is sufficient to withstand Motion for Directed

Judgment of Acquittal pursuant to Rule 29(a) Rules of

Criminal] Procedure at closing of the Government case

where such evidence fails to evince the criminal

Defendant's participation in the conspiracy charged.

2. Whether the Government may introduce hearsay

declarations of a Co-Defendant against a Defendant to

prove the Defendant's participation in the conspiracy

charged where there is no substantial independent

evidence of the Defendant’s participation in the specific

conspiracy charged. Whether testimony by a Government

witness of statements made by a Co-Defendant charged

with conspiracy regarding a Defendant are as to that

Defendant irrelevant and otherwise inadmissible hearsay

not subject to exception under Rule 801(d\2Xe), Rules

of Evidence, where such hearsay statements are testimony

of a crime which does not relate to the substantive

charges set forth in the Indictment, nor to the specific

conspiracy actually charged in the Indictment. Whether

the admission of such hearsay statements of a

Co-Defendant against the Defendant prejudiced the

Defendant's right to fair trial assured the Defendant

under Amendment V, United States Constitution.

3. Whether a criminal Defendant charged with

conspiracy is entitled to severence where he is charged

in three counts of a nine count Indictment, where that

Defendant is charged in the Indictment with seven

Co-Defendants, where the testimony presented at trial

substantially relates events solely involving the

Co-Defendants and conversations had between

Co-Defendants and a Government agent at which the

Defendant was not present, was not mentioned, in which

the Defendant did not participate. Whether denial of

such Defendant's request for severance would prejudice

the Defendant's right to fair trial assured the Defendant

under Amendment V, United States Constitution.

4. Whether Government failure to prior to or at

trial provide all Jencks Act Grand Jury testimony of

the sole Government witness to testify at trial as

requested by defense counsel prejudices the Defendant's

rights to effective assistance of counsel and fair trial,

contrary to Amendments V and VI, United States

Constitution. Whether the Defendant is entitled to remand

of the cause for evidentiary hearing to determine the

extent of prejudice caused the Defendant by such

Government failure to provide all Jencks Act Grand

Jury testimony of its sole witness.

ses

OPINION BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit and the Order on Petition for

Rehearing are attached hereto as Appendices A and B

respectfully. Such addressed each of the issues raised

below and herein.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendments V & VI.

STATUTE INVOLVED

21 U.S.C.A. §846; 21 U.S.C.A. §841(aX1)

TABLE OF CONTENTS

Page

I ons cass au encesececwks ii, iii

re ae aise ec Les wean iv

ESTES CSE A a ee iv

Constitutional Provisions Involved ............. iv

IN a iv

ES 1

Reason for Granting the Writ ................. 5, 6

a in cn ewes Guesseecce>s 7,11

eer eee 13

ee oes oka a dake wcac ow cae ans 12

Rie a k's Sc 5.4 niy,s.0's § sab's9s 6 ag 0%.3 App. 1

TABLE OF AUTHORITIES

Cases: Page

Universal Camera Corp. v. NLRB,

340 U.S. 474, 95 L.Ed. 456, 71 S.Ct. 456(1951).. 5

NLRB ». Pittsburg S.S. Co.,

340 U.S. 498, 95 L.Ed. 479, 71 S.Ct.453(1951).. 5

Goldlawr, Inc. v. Heiman,

369 U.S. 463 8 L.Ed.2d 39, 82 S.Ct. 913 (1962) . 5

Commissioner v. Bilder,

369 U.S. 499, 8 L.Ed.2d 65, 82 S.Ct. 881 (1962). 5

Katteakos v. United States,

328 U. 750 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). 5,8

Ingram v. United States,

360 U.S. 672, 680, 79 S.Ct. 1314, 1320,

eG 5, 8

United States v. Wieschenberg,

604 F.2d 326 335-336 (5th Cir.1979)......... 5, 8

United States v. DeSimone,

660 F.2d 532, 536-538 (5th Cir.1981)......... 6, 8

United States v. Mehtala,

a SD: 6, 8

United States v. Quintana,

G06 F 2a G67 (7th Cir. 1975) ................ 6, 8

vi

TABLE OF AUTHORITIES (Continued)

Cases:

United States v. Baker,

499 F.2d 845 (7th Cir. 1974) cert. denied,

419 U.S. 1071, 95 S.Ct. 659,

ge i re

United States v. Weaver,

594 F.2d 1272 (9th Cir. 1979): ..............

United States v. Peterson,

549 F.2d 654 (9th Cir. 1977) ................

United States v. Basurto,

497 F.2d 781, 793 (9th Cir. 1974) ............

United States v. Gardner,

475 F.2d 1273 (9th Cir. 1973) ...............

United States v. MacPherson,

664 F.2d 69 (5th Cir. 1981) .................

United States v. Reyes,

595 F.2d 275 (6th Cir. 1979)................

Anderson v. United States,

417 U.S. 211, 218 n.6, 41 L.Ed.2d 20,

NE a 65 os cc kee eae ean

United States v. Nixon,

418 U.S. 683, 700-702 41 L.Ed.2d 1039,

1059-1060, 94 S.Ct. 390 (1974) ...............

vii

Page

TABLE OF AUTHORITIES (Continued)

Cases: Page

United States v. Eubanks,

591 F.2d 513 (9th Cir. 1979) ................ 6,9

United States v. Radeker,

664 F.2d 242 (10th Cir. 1981)............... 6,9

United States v. Holder,

560 F.2d 953 (8th Cir. 1977) ............4... 6,9

United States v. Diecidue,

603 F.2d 535, 553-555 (5th Cir. 1979)

eGR a's Sy oaisseaate xs ud eee ae 6,9

Panci v. United States,

256 F.2d 308 311 (5th Cir. 1958) ............. 6,9

United States v. Hinton,

631 F.2d 769, 771 (D.C. Cir. 1980).......... 7,11

United States v. Knowles,

594 F.2d 753 (9th Cir. 1979) ............... 7,11

United States v. Blasco,

702 F.2d 1315 (11th Cir. 1983) ............... 8

Pinkerton v. United States,

328 U.S. 640, 66 S.Ct. 1180,

A OID sin. p50 is'e'ge ved oon ows 9

viii

TABLE OF AUTHORITIES (Continued)

Cases: Page

United States v. Pardo,

nin re tn, GF. ROOD)... 2.2... eee eee: 9

United States v. Staten,

581 F.2d 878 (D.C: Cir. 1978) ................ a

United States v. Ferg,

504 F.2d 914, 916-917 (5th Cir.1974).......... 9

United States v. Horton,

488 F.2d 374 (5th Cir. 1974)................. 9

Murray v. United States,

403 F.2d 694 (9th Cir. 1968)..........0....... 9

United States v. Miller,

664 F.2d 826 (1lith Cir.1981).............. 9,10

United States v. James,

590 F.2d 575, 580-581 (5th Cir.) (en banc)

cert. denied 442 U.S. 917, 99 S.Ct. 2836,

a 10

United States v. Russell,

703 F.2d 1243, 1247-1248 (11th Cir. 1983)...... 10

United States v. Rivero,

a Oy | 10

STATEMENT OF CASE

On April 28, 1982, the Indictment was filed herein

which Indictment by Count I charged the Appellant,

JOHN TAYLOR, together with eight (8) Co-Defendants

with conspiracy to violate Title 21, United States Code,

Section 841(a\1) in violation of Title 21, United States

Code, Section 846. The aforementioned Indictment alleged

that such conspiracy existed from an unknown time

prior to December 16, 1981 and continued until April

28, 1982.

The Indictment further charged Mr. Taylor by

Counts VIII and IX of the Indictment with distribution

of heroin in violation of Title 21, United States Code,

Section 841(aX1) and Title 18 United States Code, Section

2 and with possession with intent to distribute heroin

in violation of Section 841(aX1) and Title 18, United

States Code, Section 2, all of which the Indictment

alleged to have occurred on December 28, 1981 (Vol. I,

R 1-5).'

On May 26, 1982, Mr. Taylor filed his Motion to

Sever (Vol. I, R. 36-37). On June 3, 1982, United States

Magistrate Patricia Jean Kyle entered her Order on

Various Motions wherein she denied Mr. Taylor’s Motion

to Sever (Vol. I, R. 80-88).

On June 28, 1982, jury trial commenced before the

United States District Court for the Southern District

of Florida. Counsel for Mr. Taylor was provided at time

‘The designation (Vol.# ,R_ ) refers to the Record Volume

and page number in Appeal below.

P|

of trial Government witness Agent Williams, April 20,

1982, Grand Jury Trestimony. Counsel for Mr. Taylor

was not provided Agent Williams, June 16, 1982, Grand

Jury testimony which counsel for the Government utilized

upon re-direct examination of Agent Williams at trial

(Vol. IV, 473-478).

On July 3, 1982, at close of the Government case,

counsel for Mr. Taylor moved for Judgment of Acquittal

which Motion was denied (Vol. IV, R. 506-511). Mr.

Taylor was convicted of Counts I, VIII and IX of the

Indictment. Motion for New Trial was thereafter filed

and denied (Vol. I, R. 138-139); Vol. I, R. 149). The

United States Court of Appeals for the Eleventh Circuit

affirmed in an opinion of September 8, 1983 and thereafter

denied Mr. Taylor’s Petition for Re-hearing on November

4, 1983.

A. FACTS RELATING TO THE OFFENSE

On December 16, 1981, Government Agent Williams

and Co-Defendant James Shingles, met and discussed

the purchase of heroin. Mr. Taylor was not present

(Vol. II, R.168). On December 16, 1981, Agent Williams

consummated the sale «! heroin with Co-Defendants

McKinney, Floyd, and shingles. Mr. Taylor was not

present. (Vol. II, R.174-183, 185-186, 192-193; Vol. III,

R-215-217, 221-222). Mr. Taylor was not present when

the Agent discussed with Shingles his “Cuban” connection

on December 16, 1981, (Vol. III, R.226), nor present on

December 16th when McKinney discussed with the

Agent purchase of “kilce quantities of cocaine”. (Vol. ITI,

R.225)

Mr. Taylor was not known to be involved with the

transactions of December 16, 1981. (Vol. IV, R.420). On

December 28, 1981, Co-Defendant Shingles and the Agent

discussed future transactions telephonically which

conversations were recorded and introduced at trial.

Mr. Taylor was not a party to, nor mentioned in these

recorded conversations. (Vol. III, R-232-233, 236). The

record reveals that Mr. Taylor was not present when

the Agent met Co-Defendant Shingles at Miami Airport

on December 28, 1981, where future transactions were

discussed. (Vol. III, R.244).

Later on December 28, 1981, the Agent Williams

met Mr. Taylor at a house in Miami where Mr. Taylor

advised the Agent of his legitimate business, his night

club and “studio”. The Agent and Mr. Taylor “talked in

general”. (Vol. III, R-257-259; Vol. IV, R.426, 427-428). A

sale of heroin was consummated between Co-Defendant

McKinney and Agent Williams at this house in Miami

in Mr. Taylor’s presence on December 28, 1981. Mr.

Taylor did not participate in the negotiations for sale

of the contraband, did not participate in the sales

transaction itself between McKinney and the Agent,

and was physically excluded from contemporaneous

negotiations at time of the sales transaction by the

participants themselves on December 28, 1981, when

Co-Defendants McKinney, Shingles and the Agent

separated themselves from John Taylor by going into

the next room to privately discuss the transaction, its

logistics, the price, and future business. (Vol. II, R-268-271;

Vol. IV, R-431-434) Agent Williams testified that to his

knowledge, John Taylor had never met Co-Defendant

Shingles prior to December 28, 1981. (Vol. IV, R.423-424),

that John Taylor never handed him any heroin or cocaine

(Vol. IV, R.424), that John Taylor did not discuss with

pre.

the Agent the price of heroin (Vol. IV, R.345), and that

the Agent had no evidence that John Taylor was a

source of heroin. (Vol. IV. R.435)

The record reveals that Mr. Taylor was not a

party to any conversation, meeting, or arrangement

for sale of cocaine or heroin thereafter had between his

Co-Defendants and the Agent Williams.

The record reveals that the Agent Williams and

Co-Defendant McKinney came uninvited to Mr. Taylor's

home on March 26, 1982, they “just talked in general”,

(Vol. III, R.334-335), and Mr. Taylor advised the Agent

Williams of his belief that the Agent was an undercover

police officer (Vol.ITI, R.334-335). Agent Williams thereafter

departed.

Over defense counsel's objection, (Vol.III, R.311-313),

Agent Williams testified as to conversations had with

Co-Defendant McKinney outside Mr. Taylor’s presence

as to Mr. Taylor’s purported past delivery of an unspecified

amount of contraband to New Orleans at an undetermined

time which purported transaction was not shown or

mentioned to involve any of Mr. Taylors’ alleged

co-conspirators. (Vol.III, R.332).

Agent Williams was asked at trial on cross-

examination, as to his Grand Jury Testimony of April

20, 1982, and acknowledged same wherein he testified

that he gave $20,000.00 to Co-Defendant McKinney for

the contraband on December 28, 1981. Agent Williams

on direct examination testified that upon receipt of the

contraband from Co-Defendant McKinney (as to the

same $20,000.00) that he without conversation, handed

Co-Defendant Floyd $10,000.00 to count and Mr. Taylor

$10,000.00 because “Floyd was still counting the money

and Taylor was closest to me and he just accepted it.”

(Vol.III, R.268-270). On re-direct examination, Agent

Williams testified that he handed Mr. Taylor the same

full $20,000.00 to count, as he had testified in his

subsequent June 16, 1982 Grand Jury testimony which

Grand Jury testimony was not provided counsel for

Mr. Taylor.

REASONS FOR GRANTING THE WRIT

This case presents conflict with the decision law of

this Court and creates a real and embarrassing conflict

of opinion and authority between Courts of Appeal

that can only be resolved by this Court. Universal

Camera Corp. v. NLRB, 340 U.S. 474, 95 L.Ed. 456, 71

S.Ct. 456 (1951); NLRB v. Pittsburg S.S. Co., 340 USS.

498, 95 L.Ed. 479, 71 S.Ct. 453 (1951); Goldlawr, Inc. v.

Heiman, 369 U.S. 463, 8 L.Ed.2d 39, 82 S.Ct. 913 (1962);

Commissioner v. Bilder, 369 U.S. 499, 8 L.Ed.2d 65, 82

S.Ct. 881 (1962). The facts as set forth in the record (not

the Argument Section of Respondent's Brief below,

pages 11-16) reflect the presence of Petitioner at the

scene of a single transaction in which he did not

participate, the generalized association of Petitioner

with his alleged co-conspirators, and the generalized

knowledge of Petitioner on a total of four (4) isolated

occasions that something illegal was, or may have been

going on during a period from December 16, 1981 through

April 28, 1982. The decision below conflicts with the

following authorities because it renders Petitioner guilty

of the charge of conspiracy by his mere presence at the

scene of a substantive offense and generalized association

with the actual perpetrators of that substantive offense:

Katteakos v. United States, 328 U.750, 66 S.Ct. 1239, 90

L.Ed. 1557 (1946); Ingram v. United States, 360 U.S.

672, 680, 79 S.Ct. 1314, 1320, 3 L.Ed.2d 1503 (1959);

United States v. Wieschenberg, 604 F.2d 326, 335-336

(5th Cir. 1979); United States v. DeSimone, 660 F.2d

532, 536-538 (5th Cir. 1981); United States v. Mehtala,

578 F.2d 6 (1st Cir. 1978); United States v. Quintana,

508 F.2d 867 (7th Cir. 1975); United States v. Baker, 499

F.2d 845 (7th Cir. 1974) cert denied, 419 U.S. 1071, 95

S.Ct. 659, 42 L.Ed.2d 667 (1974); United States v. Weaver,

594 F.2d 1272 (9th Cir. 1979); United States v. Peterson,

549 F.2d 654 (9th Cir. 1977); United States vu. Basurto,

497 F.2d 781, 793 (9th Cir. 1974); United States u Gardner,

475 F.2d 1273 (9th Cir. 1973); United States u MacPherson,

664 F.2d 69 (5th Cir. 1981); United States v. Reyes, 595

F.2d 275 (5th Cir. 1979).

The decision of the Eleventh Circuit Court of Appeal

sub judice creates a real and embarassing conflict with

the following authorities because it permits into evidence

hearsay testimony of a Co-Defendant as to events

concerning Petitioner that occurred at an undetermined

time that were not shown to relate to. or be a part of,

the conspiracy charged to prove the conspiracy charged:

Anderson v. United States, 417 U.S. 211, 218 n.6, 41

L.Ed.2d 20, 29 n.6(i974); United States v. Nixon, 418

U.S. 683, 700-702 41 L.Ed.2d 1039, 1059-1060, 94 S.Ct.

390(1974); United States v. Eubanks, 591 F.2d 513 (9th

Cir. 1979); United States v. Radeker, 664 F.2d 242 (10th

Cir. 1981); United States v. Holder, 560 F.2d 953 (8th

Cir. 1977); United States v. Diecidue, 603 F.2d 535,

553-555 (5th Cir. 1979) citing to Panci v. United States,

256 F.2d 308, 311 (5th Cir. 1958).

The decision of the Eleventh Circuit Court of Appeal

sub judice creates real and embarrassing conflict with

decision law in other circuits for reason that it allows

the Government withholding of Jencks Act Materials

(the June, 1982 Grand Jury testimony of the sole

Government witness to testify at trial, Agent Williams)

without remand for evidentiary hearing to determine

prejudice to Petitioner. The decision below which held

such omission to not substantially prejudice Petitioner's

rights to effective assistance of counsel and fair trial

assured under Amendments V and VI, United States

Constitution, creates real and embarassing conflict with

United States v. Hinton, 631 F.2d 769, 771 (D.C.Cir.

1980), and United States v. Knowles, 594 F.2d 753 (9th

Cir. 1979).

Because the record reveals that Petitioner was

not named in six (6) counts of the nine (9) count Indictment

in which he was one of eight (8) Defendants, because

the evidence introduced at trial which related almost

exclusively to his Co-Defendants was often of sensational

quality, and because the spill-over effect of evidence

introduced against other Defendants not relevant to

Petitioner's case could not be alleviated other than by

severance, the Tria] Court erred in denial of Petitioner's

Motion for Severance.

ARGUMENT

Petitioner contends that the facts of record fail to

reflect Petitioner's participation in the conspiracy charged,

that the record at most reflects only the Petitioner's

presence at the scene of the December 28, 1981 transaction

in which he was not a participant, Petitioner’s knowledge

that something illegal was going on, and Petitioner's

generalized association with the actual participants in

the December 28, 1981 transaction. Such is insufficient

as a matter of law to support the conspiracy conviction

obtained below: Katteakos v. United States, 328 U.750,

66 S.Ct. 1239, 90 L.Ed. 1557(1946); Ingram v. United

States, 360 U.S. 672, 680, 79 S.Ct. 1314, 1320, 3 L.Ed.2d

1503 (1959); United States vu. Wieschenberg, 604 F.2d

326, 335-336 (5th Cir. 1979); United States v. DeSimone,

660 F.2d 532, 536-538 (5th Cir. 1981); United States ».

Mehtala, 578 F.2d 6 (1st Cir. 1978); United States v.

Quintana, 508 F.2d 867 (7th Cir. 1975); United States v.

Baker, 449 F.2d 845 (7th Cir. 1974) cert.denied, 419

U.S. 1071, 95 S.Ct. 659, 42 L.Ed.2d 667(1974); United

States v. Weaver, 594 F.2d 1272 (9th Cir. 1979); United

States v. Peterson, 549 F.2d 654 (9th Cir. 1977); United

States v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974);

United States v. Gardner, 475 F.2d 1273 (9th Cir. 1973);

United States v. MacPherson, 664 F.2d 69 (5th Cir.

1981); United States v. Reyes, 595 F.2d 275 (5th Cir.

1979).

The decision below cites to United States u Blasco,

702 F.2d 1315 (11th Cir. 1983) which held at page 1330:

“It is incumbent upon the prosecution in conspirary

cases to demonstrate each Defendant’s individual

participation in the alleged conspiracy. A Defendant

may not be convicted unless the evidence adduced at

trial is sufficient to demonstrate his own complicity

beyond a reasonable doubt. Guilt by association may

not attach; the prosecution must individualize its proof

as to each alleged conspirator.” (Court’s emphasis)

Petitioner submits that as the evidence adduced

at trial was insufficient as a matter of law to support

the conspiracy conviction obtained, so too Petitioner's

conviction on the substantive Counts VIII and IX properly

should fall. This is for reason that absent the purported

“conspiracy” there is no evidence as would permit the

Government to bootstrap convictions for such offenses.

The doctrine of Pinkerton v. United States, 328 U.S.

640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) and its progeny

cannot properly be applied to permit Petitioner's

convictions of these substantive offenses to stand. United

States v. Pardo, 636 F.2d 535 (D.C.Cir. 1980); United

States v. Staten, 581 F.2d 878 (D.C.Cir. 1978); United

States v. Ferg, 504 F.2d 914, 916-917 (5th Cir. 1974);

United States v. Horton, 488 F.2d 374 (5th Cir. 1974);

Murray v. United States, 403 F.2d 694 (9th Cir. 1968).

Petitioner submits that the admission into evidence

at trial of testimony as to admissions made by one of

Petitioner's Co-Defendants of matters concerning

Petitioner, not shown to relate to or be a part of the

conspiracy charged for purposes of proving the conspiracy

charged was in error and requires reversal. Such

testimony was inadmissible hearsay and not properly

subject to exception under Rule 801(dX2\e) Rules of

Evidence. United States vu. Eubanks, 591 F.2d 513 (9th

Cir. 1979); United States v. Radeker, 664 F.2d 242 (10th

Cir. 1981); United States v. Holder, 560 F.2d 953 (8th

Cir. 1977); United States v. Diecidue, 603 F.2d 535,

553-555 (5th Cir. 1979) citing to Panci v. United States,

256 F.2d 308, 311 (5th Cir. 1958); Anderson v. United

States, 417 U.S. 211, 218 n.6, 41 L.Ed.2d 20, 29 n.6

(1974).

The Court below relies upon United States vu. Miller,

664 F.2d 826 (11th Cir. 1981) in its pronouncement that

“there was sufficient evidence of conspiracy to permit

the admission of the co-conspirator’s statements under

Federal Rule of Evidence 801(d\2Xe), even though no

James Hearing was held”, but fails to consider that the

hearsay statements at issue were not shown to be in

furtherance of the conspiracy charged or otherwise to

relate to the conspiracy charged. The citation in the

opinion below of the Miller decision supra, which case

addresses the circumstance where no hearing was held

pursuant to United States vu James, 590 F.2d 575, 580-581

(5th Cir.) (en banc) cert. denied, 442 U.S. 917, 99 S.Ct.

2836, 61 L.Ed.2d 283 (1979), does not address this issue

raised.

The opinion below cites to United States vu Russell,

703 F.2d 1243, 1247-1248 (11th Cir. 1983), in support of

its holding that “there was no abuse of discretion in the

denial of motion to sever”. The Russell decision supra,

does acknowledge that severance should be granted

where evidentiary spill-over creates a “compelling

prejudice against which the Trial Court (is) unable to

afford protection” (at 1247). The record sub judice, as

reflected in the Statement of the Case and Facts herein,

clearly evinces such evidentiary spill-over which did

substantially prejudice Petitioner as to deny Petitioner

fair trial. For such reason reversal and new trial are

mandated.

The Court below cites to United States vs Rivero,

554 F.2d 213 (5t1 Cir. 1977) in support of its ruling that

a lack of showing by Petitioner of government “bad

faith” in the Government failure to provide all James

10

material as to the sole Government witness herein

obviates the necessity of evidentiary hearing to determine

prejudice to Petitioner from such failure to provide the

June 16, 1981 Grand Jury testimony of said witness.

We repectfully submit that such failure to fully disclose

Grand Jury testimony of the sole Government witness

requires reversal or at minimum evidentiary hearing

to determine the extent to which Petitioner was

prejudiced by such Government omission. United States

v. Knowles, 595 F.2d 753 (9th Cir. 1979); United States

v. Hinton, 631 F.2d 769, 771 (D.C. Cir. 1980).

CONCLUSION

For these reasons the Writ of Certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Eleventh Circuit,

Respectfully submitted, _

/s/

ROBERT C. STONE, ESQ.

Attorney for Petitioner

400 Center Court Building

2450 Hollywood Boulevard

Hollywood, Florida 33020

(305) 920-7480

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit has been

furnished by MAIL DELIVERY to: LURANA SNOW,

Assistant U.S. Attorney, 299 East Broward Boulevard,

Fort Lauderdale, Florida 33301, this 3¢_ day of January,

1984.

/s/

ROBERT C. STONE, ESQ.

APPENDIX

Judgment from United States Court of

Appeals for the Eleventh Circuit

Denying Opinion from the United States

Court of Appeals

for the Eleventh Circuit

Denial of the Petition for Rehearing from

the United States Court of Appeals

For The Eleventh Circuit

App. 1

Page

A-1l

A-2

A-3

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-5911

Non-Argument Calendar

D.C. Docket No. 82-06058

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOHN TAYLOR,

Defendant-A ppellant.

Appeal from the United States District Court for the

Southern District of Florida

Before GODBOLD, Chief Judge, RONEY and TJOFLAT,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript

of the record from the United District Court for the

Southern District of Florida, and was taken under

App. 2

—— ee oe

submission by the Court upon the record and briefs on

file, pursuant to Rule 23;

ON CONSIDERATION WHEREDOPF, it is now here

ordered and adjudged by this Court that the judgment

of conviction of the said District Court in this cause be

and the same is hereby AFFIRMED.

September 8, 1983

App. 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-5911

Non-Argument Calendar

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOHN TAYLOR,

Defendant-A ppellant.

Appeal from the United States District Court for the

Southern District of Florida

(September 8, 1983)

Before GODBOLD, Chief Judge, RONEY and TJOFLAT,

Circuit Judges.

PER CURIAM:

John Taylor appeals his conviction of three narcotics

violations: conspiracy to distribute cocaine and heroin

(21 U.S.C.A. §846), and distribution of heroin and

possession with intent to distribute heroin (21 U.S.C.A.

§841(a\(1) ). We affirm.

App. 4

The evidence set forth in the Government's brief,

pages 11 to 16, was sufficient to withstand the motion

for acquittal. United States v. Blasco, 702 F.2d 1315,

1330-32 (11th Cir. 1983).

There was sufficient evidence of conspiracy to

permit the admission of the coconspirator’s statements

under Federal! Rule of Evidence 801(d\2\E), even though

no James hearing was held. United States v. Miller, 664

F.2d 826, 827-28 (11th Cir. 1981).

There was no abuse of discretion in the denial of

the motion to sever. United States v. Russell, 703 F.2d

1243, 1247-48 (11th Cir. 1983).

As to the Jencks material, there is no showing of

bad faith by the Government and no sufficient indication

of prejudice to a fair trial or effective assistance of

counsel to require an evidentiary hearing or a new

trial. United States v. Rivero, 554 F.2d 213, 215 (5th

Cir. 1977).

AFFIRMED.

App. 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-5911

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOHN TAYLOR,

Defendant-A ppellant.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING

(November 4, 1983)

Before GODBOLD, Chief Judge, RONEY and TJOFLAT,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and

the same is hereby denied.

ENTERED FOR THE COURT:

App. 6