# Petition — Taylor v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1028

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1038%3A1. Public record. Not legal advice.