Petition for Writ of Certiorari — Porter v. United States

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86-1859) [Fre

FEB 1% 367

ee ‘$OSEPH F. SPANIOL, JR.

SLERK

In the

Supreme Court of the United States

Ocroser Term, 1986

PAUL C. PORTER,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT. 55

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Morris M. GoLpincs

Counsel of Record

RicHarp S. Jacoss

Manoney, Hawkes & GOLDINGS

One Walnut Street

Boston, Massachusetts 02108

(617) 367-2900

Counsel for Petitioner

Blanchard Press, Inc.. Boston, Mass. Law Printers [617] 426-6690

QUESTIONS PRESENTED

In the light of the following circumstances:

(A) The First Circuit has itself not addressed the

important question left expressly unanswered by this

Court in Greene v. Massey, 437 U.S. 28 (1978): whether

evidence ruled excluded on appeal should be considered

when the reviewing court makes a determination on the

sufficiency of the evidence to sustain a criminal convic-

tion; and

(B) In the first appeal of this case, the First Circuit

ordered that the only direct incriminating evidence

should have been excluded, and remanded for “further

proceedings consistent hereof;” and

the grounds of double jeopardy because of insufficient

evidence; and

(D) On interlocutory appeal, the First Circuit held

that “it is irrelevant to consider the sufficiency of the

government’s evidence,” and that “no ‘double’ jeopardy

question can arise at this point in time, since the original

jeopardy has never ended.”

1. Can the double jeopardy question be raised to prevent

a retrial of the case?

2. Should evidence ordered suppressed on appeal be con-

sidered in determining the sufficiency of the evidence to sus-

tain conviction?

20 eee tel wm te tet: a

Questions

TABLE OF CONTENTS

RE Weck 8 et ray em

er ok es Wale b vrek'a ok ais

EEO ee OE Pe ee

a te vig guia ey Fy bese be ae ee ws

Constitutional Provision Involved....................

ee kc bw ecw aaeees

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

Il.

The First Circuit’s Misapprehension or Misap-

plication of the Abstract Doctrine of Continu-

ing Jeopardy Is in Conflict with the Reasoning

and Principles of This Court and the Other Cir-

cuit Courts of Appeals and With the Constitu-

tion, and Has Broad and Adverse Implications

For the Administration of Criminal Justice... .

The Conflict Between the Circuits on the

Underlying Question Has Now Been Exacer-

bated by the First Circuit’s Novel and Constitu-

tionally Unacceptable Analysis, With Wide Im-

pact and Far-Reaching and Adverse Conse-

quences to the Administration of Criminal

A an ah pie a 0a cha wie Cok d ye keds

TE ae, cn ee a ee Oe te seks

eo EE Ee a ey ae ee a Se a ee Oe ee, ee te a ee ee oe ee ee ee ee

iv.

Cases:

Page

Abney v. United States, 431 U.S. 651 (1977)........ 3,3,5

Breed v. Jones, 421 U.S. 519 (1975). .................. 6

Bryan v. United States, 338 U.S. 552 (1950)............ 14

Burks v. United States, 437 U.S. 1 (1978)............ 7,14

Green v. United States, 355 U.S. 184 (1954)............ 6

Greene v. Massey, 437 U.S. 23 (1978).......... 4,7, 13,14

Jackson v. Virginia, 443 U.S. 307 (1979)............... 7

Jones v. Thigpen, 741 F.2d 805 (5th Cir. 1984)......... 7

Justices of the Boston Municipal Court v. Lydon, 104

as SC i bins o's ReneS ee Fk Kav 6, 7,9

Kepner v. United States, 195 U.S. 100 (1904)... .. pepe 6

Lydon v. Justices of Boston Municipal Court, 698 F.2d 1

bgt ee ee ee OS Se Pee ee 9

Richardson v. United States, 468 U.S. 317 (1984).... 2,4,7

Smalis v. Pennsylvania, 106 S.Ct. 1745 (1986).......... 7

Tibbs v. Florida, 457 U.S. 31 (1982).................. 7

United States v. Block, 590 F.2d 535 (4th Cir. 1979)... 11

United States v. Dunbar, 611 F.2d 485 (5th Cir. 1980). ~

United States v. Harmon, 632 F.2d 812 (9th Cir. 1980) 12

United States v. Head, 697 F.2d 1200 (4th Cir. 1982)... 13

United States v. Hodges, 770 F.2d 1475 (9th Cir. 1985) 12

United States v. Jenkins, 420 U.S. 358 (1975).......... 6

United States v. Leppo, 634 F.2d 101 (3rd Cir. 1980)... 13

United States v. Lewis, 787 F.2d 1381 (9th Cir. 1986)... 7

United States v. Marolda, 648 F.2d 623 (9th Cir. 1981) 8

United States v. Palzer, 745 F.2d 1350 (11th Cir. 1984) 7

United States v. Paul C. Porter, 764 F.2d 1 (lst Cir.

WN so 5s Ws a Ge ee ee eee sss 2, 3, 4

United States v. Perez, 9 Wheat. 579 (1824)........... \

United States v. Porter, (Porter II), 807 F.2d 21 (lst Cir.

RG sg vy eo ea ee eR ERR eek haben wns 4

United States v. Porter, 776 F.2d 370 (Ist Cir. 1985)... 2,3

United States v. Richardson, 702 F.2d 1079 (D.C. Cir.

WSS cos ye a a i es y ae

WE no cembOUa 1

Vv.

Page

United States v. Sacromento-Perez, 667 F.2d 1239 (5th

as ov Ga tidn dee Ord Saad ee Bea eae 12

United States v. Snead, 705 F.2d 745 (5th Cir. 1983).... 8

United States v. United States Gypsum Company, 600

ee re NII sc fn os Sieve dad easeees oc 8

Vogel v. Commonwealth of Pennsylvania, 790 F.2d

SG UEC 45s Fiore Milas wha eens 7

se Es

a a ee ee vo

TR EL ae BR haloes

—*

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Hm AN Ne be ET Me ge

In the

Supreme Court of the United States

Octroser Term, 1986

PAUL C. PORTER,

PETITIONER,

vb.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The Petitioner Paul C. Porter respectfully prays that a writ

of certiorari issue to review the judgment and opinion of the

United States Court of Appeals of the First Circuit, entered in

the above-entitled proceeding on December 18, 1986.

Opinions Below

The opinion of the Court of Appeals for the First Circuit of

which review is sought is reported at 807 F.2d 21, and is

reprinted in the appendix attached hereto, App. A-3-9.

The decision of the United States District Court for the Dis-

trict of Massachusetts (McNaught, J.) was made from the

bench and is unreported. It is printed from the transcript of

the hearing, in the appendix attached hereto, App. A-1-2.

There were two prior reported opinions in this case by the

Court of Appeals for the First Circuit. They are reprinted in

the appendix attached hereto: United States v. Paul C. Porter,

764 F.2d 1 (ist Cir. 1985), wherein the First Circuit set aside

the verdict and judgment as to Petitioner and remanded to the

District Court for further proceedings, App. A-10-41; and

United States v. Porter, 776 F.2d 370 (1st Cir. 1985), wherein

the First Circuit denied the Government's Petition for Rehear-

ing and Suggestion for Rehearing En Banc, App. A-42-43.

Jurisdiction

The jurisdiction of this Court to review the judgment of the

First Circuit, dated and entered December 18, 1986, is invoked

pursuant to Abney v. United States, 431 U.S. 651 (1977), and

Richardson v. United States, 468 U.S. 317 (1984).

Constitutional Provision Involved

Amendment V.

. nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb .. .”

Statement of the Case

Six individuals including the Petitioner, Paul C. Porter,

were charged with conspiracy to possess with intent to distrib-

ute marijuana, in violation of 21 U.S.C. §§841(a)(1), and

841(b)(6), and four of these defendants, including the Peti-

tioner, were also charged with distribution of marijuana, in

violation of 21 U.S.C. § 841(a)(1). At the close of the Govern-

ment’s case Porter moved for acquittal and the motion was

denied. This motion was renewed at the close of all evidence

and again denied. After four days of deliberations, the jury on

September 2, 1983, acquitted Porter of the distribution charge

and convicted him on the conspiracy charge.

On May 14, 1985, the United States Court of Appeals for the

First Circuit entered Judgment on an appeal from the District

Court in the case of United States v. Paul C. Porter, 764 F.2d 1

(1st Cir. 1985), setting aside the verdict of the jury as to Porter

and vacating the judgment of the District Court. The Court of

Appeals held that Porter’s attempt to contact his attorney by

telephone constituted an assertion of his right to counsel and

that his subsequent inculpatory statements were obtained in

violation of his constitutional right to have counsel present

during custodial interrogation. The case was remanded “for

further proceedings.” On October 31, 1985, the Court of

Appeals denied the Government's Petition for Rehearing and

Suggestion for Rehearing En Banc, United States v. Porter,

776 F.2d 370 (ist Cir. 1985).

After the Government filed a notice of intention to re-try

the case, Porter filed in District Court a Motion to Dismiss on

Grounds of Double Jeopardy, asserting that without the evi-

dence of_the inculpatory statement, which should have been

suppressed, there was insufficient evidence to convict him of

conspiracy beyond a reasonable doubt, and that hence a re-

trial of the case would violate his right not to be placed further

in jeopardy under the double jeopardy provision of the Fifth

Amendment to the United States Constitution. Without the

inculpatory statements that should have been excluded, he

asserted there was only insufficient circumstantial evidence.

After hearing, the District- Court denied the Motion to

Dismiss in open court on May 31, 1986. App. A-1. The Court

held, first, that it must consider the evidence ordered suppressed

in ruling on the motion and that with the excluded evidence al!

the evidence was sufficient to send the case to the jury; and

second, that in the circumstances of this case, it would have

found the evidence sufficient even excluding the inculpatory

statements ordered suppressed.

Pursuant to Abney v. United States, 431 U.S. 651 (1977),

Porter took an interlocutory appeal from the District Court's

denial of his Motion to Dismiss on Grounds of Double Jeopardy.

The question as framed by both Porter and the Government to

the Court of Appeals was the question left expressly unaddressed

by this Court in Greene v. Massey, 437 U.S. 23 (1978): when a

conviction is ordered reversed for trial error, should evidence

ordered suppressed on appeal be considered in determining

the sufficiency of the evidence? Porter also appealed the find-

ing of sufficiency.

The Court of Appeals for the First Circuit, which itself has

not addressed that troublesome question, “disagree[d] with

the parties’ characterization of the issue on appeal.” United

States v. Porter, 807 F.2d 21, 22 (Ist Cir. 1986) (hereinafter

“Porter IT’). App. A-3. Instead, the Court of Appeals saw the

inquiry to be whether the defendant could raise a double jeop-

ardy claim at all. Relying on a misapprehension or a misappli-

cation of the abstract doctrine of continuing jeopardy, the

First Circuit held that the answer was “no,” stating by claimed

analogy to the circumstances of Richardson v. United States,

468 U.S. 317 (1984):

Just as Richardson’s initial jeopardy was not terminated

by the mistrial order, so Porter's initial jeopardy was not

terminated by this court’s decision, on direct appeal, to

grant him a new trial [sic]' because of the district court's

error in admitting inadmissible evidence. As in Richard-

son, it is irrelevant to consider the sufficiency of the gov-

ernment’s evidence at the first trial, however that is to be

gauged. No “double” jeopardy question can arise at this

point in time, since the original jeopardy has never ended

... In light of Richardson, we merely hold that where

the first conviction was vacated for legal error, not insuf-

ficiency of evidence, the concept of continuing jeopardy

rules out a double jeopardy claim based on purported in-

sufficiency of evidence at the first trial.

Porter II at 24, App. A-40-41.

' The Court of Appeals did not order a “new trial” for Porter but rather

mandated, “The judgment is vacated as to co-defendant Porter and remanded

to the district court for further proceedings consistent hereof.” United States

v. Paul C. Porter, 764 F.2d at 17 (emphasis added).

Bros

The First Circuit noted that while its analysis was novel, the

“practical result” is “much the same” as the outcome in cases

in five other circuits:

Our decision is consistent, in practical effect, with the

outcome in cases in five other circuits ... Although

Richardson leads us to a different analysis than was

employed in these cases, the practical result is much the

same.

Ibid.

Pursuant to Abney v. United States, supra, Paul C. Porter

respectfully petitions this Court for a writ of certiorari.

Reasons for Granting the Writ

I. THe First Crrcurt’s MIsAPPREHENSION OR MISAPPLICATION

OF THE ABSTRACT DOCTRINE OF CONTINUING JEOPARDY IS IN

ConFLicT WITH THE REASONING AND PRINCIPLES OF THIS

CourT AND THE OTHER Circuit Courts OF APPEALS AND

WITH THE CONSTITUTION, AND HAs BROAD AND ADVERSE

IMPLICATIONS FOR THE ADMINISTRATION OF CRIMINAL

JUSTICE.

While the doctrine of “continuing jeopardy” provides that

jeopardy does not terminate upon a reversal for trial error, the

First Circuit engaged in a misapprehension or misapplication

of that doctrine in holding that “the concept of continuing

jeopardy rules out a double jeopardy claim in this case,” and

“No ‘double’ jeopardy question can arise at this point in time,

since the original jeopardy has_ never ended.” Porter II at 24

and fn.2, App. A-9. The First Circuit’s novel analysis is at

odds with the principles and reasoning of this Court and the

other Circuits. ‘

This Court should grant the writ and determine whether

the analysis is constitutionally acceptable.

A. Unconstitutional Reliance on an Abstract Doctrine

The concept of “continuing jeopardy,” as originally espoused

by Justice Holmes in Kepner v. United States, 195 U.S. 100,

134-137 (1904) and never accepted by this Court, entailed “no

discernible limits on the government’s ability repeatedly to re-

try a defendant for the ‘same cause’,” Justices of the Boston

Municipal Court v. Lydon, 104 S.Ct. 1805, 1819, fn. 5 (1984)

(Brennan, J. concurring):

[I]t seems to me that logically and rationally a man

cannot be said to be more than once in jeopardy in the

same cause, however often he may be tried. The jeopardy

is one continuing jeopardy from its beginning to the end

of the cause. _

Justice Holmes’ view “has never been adopted by a majority

of the Court,” United States v. Jenkins, 420 U.S. 358, 369

(1975); Breed v. Jones, 421 U.S. 519, 534 (1975). Rather, “that

contention has been consistently rejected by this Court.”

Green v. United States, 355 U.S. 184, 196 (1957). In fact, “Mr.

Justice Holmes’ theory of continuing jeopardy has never out-

wardly been adhered to by any other Justice of this Court.”

Green v. United States, supra, at 197. (emphasis added).

In Breed v. Jones, supra, at 534, this Court distinguished

between the “concept” and the “conclusion”:

[T]he phrase continuing jeopardy describes both a con-

cept and a conclusion. As originally articulated by Mr.

Justice Holmes in his dissent in Kepner v. United States,

195 U.S:-400, 134-137 (1904), the concept has proved an

interesting model for comparison with the system of con-

stitutional protection which the Court has in fact derived

from the rather ambiguous language and history of the

Double Jeopardy Clause.

The conclusion, ‘continuing jeopardy,’ as distinguished

from the concept, has occasionally been used to explain

why an accused who has secured the reversal of a convic-

tion on appeal may be retried for the same offense.

(emphasis added).

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While an accused may be retried following a reversal for

trial error, he may not be retried where there was also insuffi-

cient evidence. A determination of insufficiency “constitutes

an acquittal for purposes of the Double Jeopardy Clause,”

Smalis v. Pennsylvania, 106 $.Ct. 1745, 1747 (1986); Burks v.

United States, 437 U.S. 1 (1978). As summarized by Mr. Jus-

tice Scalia, then Circuit Judge, dissenting in United States v.

Richardson, 702 F.2d 1079, 1090 (D.C. Cir. 1983), reversed in

Richardson v. United States, infra, ‘:

Burks stands for the proposition that a determination of

insufficiency, whether made by the trial court or by an

appellate court, brings the original jeopardy to an end

and prevents further prosecution.

The same day this Court held in Burks v. United States,

supra, that the Double Jeopardy precludes a second trial once

the reviewing court has found the evidence legally sufficient, it

expressly left unanswered the important question of whether

evidence ruled inadmissible on appeal should be discounted by

the reviewing court in considering the sufficiency of the evi-

dence. Greene v. Massey, 437 U.S. 19, 26 and fn. 9 (1978).

However the sufficiency of the evidence is to be determined,

the Due Process Clause entitles a defendant to an acquittal

where the evidence presented was insufficient. Justices of the

BMC v. Lydon, supra at 1824 (Stevens, J., concurring); Jack-

son v. Virginia, 443 U.S. 307 (1979).

Except for the two circumstances of a hung-jury and a two-

tier trial, infra, federal courts have held that once the issue of

insufficiency is raised, it “cannot be avoided.” United States v.

Palzer, 745 F.2d 1350, 1352, fn. 4 (11th Cir. 1984), quoting

Mr. Justice Brennan’s concurring opinion in Justices of the

Boston Municipal Court v. Lydon, infra, quoting Mr. Justice

White’s dissent in Tibbs v. Florida, 457 U.S. 31, 51 (1982);

Jones v. Thigpen, 741 F.2d 805, 815 fn. 15 (5th Cir. 1984);

United States v. Lewis, 787 F.2d 1381, 1383 (9th Cir. 1986);

Vogel v. Commonwealth of Pennsylvania, 790 F.2d 368, 376

(3rd Cir. 1986); United States v. United States Gypsum Com-

pany, 600 F.2d 414 (3rd Cir. 1979); United States v. Snead,

705 F.2d 745, 748 (5th Cir. 1983); United States v. Marolda,

648 F.2d 623 (9th Cir. 1981).

B. Misplaced Reliance on and Extension of Richardson

The First Circuit cites no direct authority for its conclusion

that the District Court on remand for further proceedings can-

not determine the sufficiency of the evidence. It developed a

novel analysis based on the concept of continuing jeopardy,

placing heavy reliance? on what it claimed to be the reasoning

and principles expressed in Richardson. Such reliance is mis-

placed and, in the context of the due process and double jeop-

ardy clauses, unconstitutional.

In Richardson, supra at 323, this Court traced the par-

ticular history of the “sources and logic” of the case law allow-

ing retrial following a hung jury, from the opinion of Justice

Story in United States v. Perez, 9 Wheat. 579 (1824), to the

present, and held:

We are entirely unwilling to uproot this settled line of

cases by extending the reasoning of Burks, which arose

out of an appellate finding of insufficiency of evidence to

convict following a jury verdict of guilty, to a situation

where the jury is unable to agree on a verdict.

(emphasis added).

2 The following quotations from the First Circuit's opinion demonstrate its

fixation with Richardson: “We believe that the reasoning of Richardson con-

trols the instant appeal.” App. A-7; “[T]Jhe principles upon which the Court

relied [in Richardson] are equally applicable here;” “Applying Richardson to

the case at bar, we affirm the retrial order.” App. A-8; “As in Richardson, it

is irrelevant to consider the sufficiency of the government's evidence at the

first trial, however that is to be gauged.” App. A-8-9; “Although Richardson

leads us to a different analysis ... the practical result is much the same .. .”

App. A-9; “In light of Richardson, we merely hold ...” App. A-9.

memes i i aa a cc aca

... Where, as here, there has been only a mistrial result-

ing from a hung jury, Burks simply does not require that

an appellate court rule on the sufficiency of the evidence

because retrial might be barred by the Double Jeopardy

Clause.

(emphasis added).

The First Circuit acknowledged, “It is true the Richardson

decision focused on the circumstances surrounding a hung

jury,” but asserted, “but the principles upon which the Court

relied are equally applicable here.” App. A-7. This Court

should grant the writ to determine whether those principles

are in fact constitutionally applicable here. 3

C. Misplaced Reliance-on and Extension of Justices of the

Boston Municipal Court v. Lydon

The First Circuit Court also referred to this Court’s decision

in Justices of Boston Municipal Court v. Lydon, 104 S.Ct.

1805 (1984), allowing a second trial regardless of insufficiency

of evidence at the first. However, this other instance of allow-

ing a retrial where there was insufficient evidence presented at

the first was also based specifically and entirely on a particular

situation — a two-tier trial system, where a defendant “has an

absolute right to obtain the de novo trial, and he need not

allege error at the first-tier trial to do so.” Ibid. at 1815. Both

the plurality opinion® at 1814 and Justice Brennan’s concur-

ring opinion at 1822, quoted the dissenting opinion of Judge

Campbell in the Court of Appeals below, Lydon v. Justices of

Boston Municipal Court, 698 F.2d 1 (Ist Cir. 1982), reversed

in Justices of BMC v. Lydon, supra, in discussing and empha-

sizing the unique characteristics of the situation there pre-

sented. That Court of Appeals opinion shows how unique the

characteristics there were, and how misplaced is any reliance

on that case in the present circumstances:

3 In Justices of the BMC, there was a plurality opinion and four different

concurring opinions, written or joined by six different Justices.

: 10

The Massachusetts two-tier system must be viewed as a

whole, not forced through a strainer developed from cases

dealing with a different system. If so viewed, I believe

that it does not create double jeopardy. What it does do is

provide a practical trial option with many advantages to

both sides.

Lydon, supra at 13.

While technically he is “tried again,” the second stage

proceeding can be regarded as but an enlarged, fact-

sensitive part of a single, continuous course of judicial

proceedings during which, sooner or later, a defendant

receives more — rather than less — of the process normally

extended to criminal defendants in this nation.

Lydon, supra at 12.

Other language of Judge Campbell is most pertinent here in

appreciating that analysis from the two-tier case as well as the

hung jury case is not applicable to the present issue:‘

I fear that decisions such as this reflect an ongoing, per-

haps irreversible tendency of federal courts to treat sub-

sidiary principles announced in constitutional decisions as

if they were propositions of plane geometry, and to extend

and apply them rigidly.

I see this as one of those cases where the relentless appli-

cation of secondary precepts developed in other, very dif-

ferent settings leads ultimately to a foolish and wrongful

result ... Saye

In conclusion, I fear that the court’s decision is a fur-

ther step in locking the states into rigid, formalistic crimi-

nal procedures, without regard to the actual justice or in-

justice of a given system, merely to satisfy refined, logical

principles derived from prior cases decided in other con-

texts.

(p. 13).

* Judge Campbell was also the author of the opinion below in the instant

matter.

The concurring opinion of Justice Brennan, joined by Justice

Marshall, was critical of the plurality’s partaking “of the sort

of ‘conceptual abstractions’ that our decisions elaborating the

requirements of the Double Jeopardy Clause have attempted

to avoid,” Ibid at 1817. The concurring opinion of Justice

Stevens was similarly critical:

I agree with Justice Brennan that the Court’s use of the

concept of ‘continuing jeopardy’ is unhelpful and that the

underlying issue in this case is whether respondent is con-

stitutionally entitled to a judgment of acquittal that could

form the predicate for his double jeopardy claim.

Ibid. at 1824.

While the concept of continuing jeopardy was discussed by

the plurality, because of the automatic de novo aspects of the

two-tier system, even without a claim of trial error, that opin-

ion stated, at 1814, “We note at the outset that Lydon was in

‘jeopardy’ in only a theoretical sense.” (emphasis added). The

single-tier system in which Porter was convicted was, of

course, quite different, and he was in jeopardy in a very real

sense. This Court should grant the writ to determine whether

the analysis of the two-tier system should be and constitution-

ally may be extended to the present case.

Il. THe Conriurct BETWEEN THE CIRCUITS ON THE UNDERLY-

ING QuEsTION Has Now BEEN EXACERBATED BY THE FIRST

Circuit's NOVEL AND CONSTITUTIONALLY UNACCEPTABLE

ANALYsIs, WitH Wipe IMPACT AND FAR-REACHING AND

ADVERSE CONSEQUENCES TO THE ADMINISTRATION OF CRIMI-

NAL JUSTICE.

The assertion by the First Circuit that its decision “is consis-

tent, in practical effect, with the outcome in five other cir-

cuits”> underscores the conflict between the Circuits; it is also

> United States v. Block, 590 F.2d 535 (4th Cir. 1979), a case cited by the

First Circuit as not excluding the incompetent evidence, left the question

unanswered.

not necessarily correct. The results may very well differ if those

circuits are to allow the trial court to exclude the incompetent

evidence and make the determination. The several Circuits

which hold that appellate courts faced with a claim of insuffi-

cient evidence should not be limited to a consideration of only

properly admitted evidence base this result on the functions and

capacities of the appellate courts— principally, that “It is im-

possible to know what additional evidence the government

might have produced had the faulty evidence been excluded at

trial.” United States v. Harmon, 632 F.2d 812 (9th Cir. 1980);

United States v. Hodges, 770 F.2d 1475, 1477 (9th Cir. 1985):

In Harmon we explained why an appellate court faced

with a claim of insufficient evidence should not be limited

to a consideration of only properly admitted evidence: “It is

impossible to know what additional evidence the govern-

ment might have produced had the faulty evidence been

excluded at trial.”

(emphasis added).

Similarly, United States v. Sacromento-Perez, 667 F.2d 1239,

1240 (5th Cir. 1982). This functional limitation applies only to

appellate courts. The district court can readily make the deter-

mination of whether the Government in fact had other evidence

available at a hearing, and should not be precluded from mak-

ing that determination. As Justice Scalia noted, dissenting as

Circuit Judge in Richardson below, where there was no other

evidence, the reasoning is not justified:

It has [been] reasoned that the adequacy of the remain-

ing evidence, after exclusion of the improperly admitted

portion, need not be evaluated since, had the improperly

admitted portion been excluded at the outset, the prosecu-

tion might have produced additional proof. See United

States v. Harmon, 632 F.2d 812, 814 (9th Cir. 1980). The

speculation hardly seems likely to be so generally true

that it would justify such an across-the-board exception.

United States v. Richardson, 702 F.2d at 1092, n.10

(emphasis added).

On remand to the district court, the government may be re-

quired to affirm or deny whether it had other evidence at the

time of trial.

If the test is to be based on legally competent evidence, the

district court may more readily make the evaluation, being ~

already familiar with the evidence.* Additionally, the appel-

late court may then never need to review the evidence should

the trial court find insufficiency or the case not be appealed.

While in some cases the appellate court might be required to

review the evidence, this is a necessary part of the administra-

tion of criminal justice. As this Court stated in Richardson,

supra at 3084, there are a variety of procedures whereby

frivolous claims of former jeopardy may be weeded out, citing

Abney, supra at 662, n. 8 and United States v. Head, 697 F.2d

1200, 1204 (4th Cir. 1982). Other procedures have been

employed by the Fifth Circuit, United States v. Dunbar, 611

F.2d 985 (5th Cir. 1980), cert. denied 447 U.S. 926, and the

Third Circuit, United States v. Leppo, 634 F.2d 101 (3rd Cir.

1980) .?

® In Greene v. Massey, supra, where there was a question as to whether

the state court had excluded the incompetent evidence in reaching its deter-

mination of insufficiency, the case was remanded to the Court of Appeals

with instructions that it “will be free to direct further proceedings in the

District Court or to certify unresolved questions of state law to the Florida

Supreme Court.” Ibid. at 27. (emphasis added). In this case, too, the First

Circuit reversed and “remanded to the district court for further proceedings

consistent hereof.” United States v. Paul C. Porter, supra at 17. It is par-

ticularly inappropriate for the First Circuit to preclude retroactively district

court review, where it has itself not heretofore answered the underlying

question of how to determine the sufficiency of the evidence, and which

court is to determine that question.

? The instant matter is certainly not frivolous—the only direct evidence

against the petitioner was his own unlawfully obtained inculpatory state-

ment.

. 14

As this Court stated in Burks v. United States, supra at 9,

“The Court's holdings in this area, beginning with Bryan v.

United States, 338 U.S. 552 (1956), can hardly be characterized

as models of consistency and clarity.” Unfortunately, the lack

of answer by this Court to the troublesome question left open

in Greene v. Massey, supra, nine years ago has resulted in con-

flicts between the Circuits. Worse, this Court's failure to ad-

dress the question has now resulted in a novel and possibly

constitutionally unacceptable analysis by the First Circuit,

with wide impact and far-reaching and adverse consequences

to the administration of criminal justice. This Court should

grant the writ and address the underlying question.

Conclusien

Therefore, based on the foregoing reasons and authorities,

the Petitioner prays that this Writ of Certiorari be granted.

Respectfully submitted,

Morris M. Go.pincs

Counsel of Record

Ricuarp S. Jacoss

Manoney, Hawkes & GoLpINGs

One Walnut Street

Boston, Massachusetts 02108

(617) 367-2900

Counsel for Petitioner

Dated: February 16, 1987

APPENDIX

A-1l

Unrrep States Districr Court

District OF MASSACHUSETTS

CR-83-58-Mc

UNITED STATES OF AMERICA,

PLAINTIFF,

PAUL C. PORTER,

DEFENDANT.

Berore THE HONORABLE JOHN J. MCNauGHT

United States District Judge

Courtroom 12

U.S.P.O. & Courthouse

Boston, Massachusetts

May 21, 1986

APPEARANCES

For the Plaintiff

Sypney HANLON, Esgq., Assistant U.S. Attorney

For THE DEFENDANT

Morris M. Goldings, Esq.,

Mahoney, Hawkes & Goldings

One Walnut Street, Boston, Massachusetts 02108

MOTION TO DISMISS HEARING

THE COURT: I think you know, Mr. Goldings, that I

admire your ability to argue and the manner in which you try

a case very much. Nonetheless, I am going to take that terrible

chance and deny your motion to dismiss on the basis of double

A-2

jeopardy in this case. I am satisfied, having had an oppor-

tunity ahead of time to have read the cases of a number of

propositions.

First of all, the Appeals Court does not ordinarily perform

the job of assessing the sufficiency of the balance of the

evidence when they have struck something that they consider

to have been inadmissible evidence and ordered a new trial

thereafter. If we have had a bit of evidence admitted in a case

which was improperly admitted, the Court of Appeals can’t

say and indeed in many instances neither can a District Judge,

whatever evidence the Government may have produced, had

not the faulty evidence been admitted.

Going further, in this particular case, even striking those

portions: that the Court of Appeals deems to have been

inadmissible, were I at that time, and I say this simply to pro-

tect your rights on the record, confronted with a motion to

deny for insufficient evidence, in other words, a motion for

judgment of acquittal, I would have denied it. I still would

have allowed it to go to the jury and allowed a jury to deter-

mine whether or not there was guilt beyond a reasonable

doubt on the remainder of the evidence that was presented as

against Mr. Porter.

United States Court of Appeals

For the First Circuit

No. 86-1573.

UNITED STATES or Amenica,

APPELLEE,

Pau C. PORTER,

DEFENDANT, APPELLANT.

Arcuep Oct. 10, 1986.

Decipvep Dec. 18, 1986.

% A

Conviction of conspiracy with intent to distribute mari-

juana was vacated in appeal 764 F.2d 1, rehearing was

denied, 776 F-2d 370, and cause was remanded for new trial.

The United States District Court for the District of

Massachusetts, John J, McNaught, J., denied defendant's

motion to dismiss indictment on basis of jeopardy, and defen-

dant filed an interlocutory appeal. The Court of Appeals,

Levin H. Campbell, Chief Judge, held that decision of the

Court of Appeals, on direct appeal, to grant the defendant a

new trial because of the district court's error in admitting in-

admissible evidence did not operate to terminate defendant's

initial jeopardy and, hence, did not operate to require

dismissal on basis of jeopardy by reason of purported insuffi-

ciency of evidence at first trial.

Affirmed.

A-4

Morris M. Goldings with whom Richard S. Jacobs and Mahoney, Hawkes

& Goldings, Boston, Mass., were on brief for defendant, appellant.

Sydney Hanlon, Asst. U.S. Atty., with whom William F. Weld, U.S.

Atty., Boston, Mass., was on brief for appellee.

; Before

CAMPBELL, Chief Judge,

Bowness and Torrue.ia, Circuit Judges.

Levin H. CAMPBELL, Chief Judge.

After a jury trial in the district court, Paul Porter was con-

victed on one count of conspiracy with intent to distribute

marijuana, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(6),

and 846 (1982). Porter appealed to this court, and we ruied

that the district court had erred by admitting into evidence

certain inculpatory statements made by Porter to DEA agents.

We vacated the judgment of conviction and remanded Porter’s

case to the district court for further proceedings. United States

v. Porter, 764 F.2d 1, 6-7 (lst Cir. 1985). On remand, after

the government noticed its intention to retry the case, Porter

moved to dismiss the indictment on grounds of double jeop-

ardy. He argued that the government’s evidence at the first

trial was legally insufficient t sustain a conviction once the

illegal evidence was deleted. Having failed to adduce ade-

quate legally competent evidence the first time around, the

government was barred by the double jeopardy clause, in

Porter's view, from getting a “second bite at the apple.”

The district court denied Porter’s motion, indicating that it

would permit a new trial. While apparently believing that a

retrial was proper even if the government’s original case were

legally insufficient without the illegal evidence, the court indi-

cated that it thought the remaining evidence here was, in fact,

legally sufficient to go to the jury.

Porter took this interlocutory appeal from the court’s denial

of his motion to dismiss the indictment, relying on Abney v.

A-5

United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651

(1977), which held that the denial of a double jeopardy

challenge to an indictment is an order that is immediately

appealable under 28 U.S.C. §1291 (1982). See also Richardson

v. United States, 468 U.S. 317, 104 S.Ct. 3081, 3084, 82

L.Ed.2d 242 (1984). He contends that the district court erred

both by considering the unconstitutionally admited statements

as part of the record properly reviewable in determining

whether retrial would violate the double jeopardy clause, and

also in finding that the remaining evidence was legally suffi-

cient. We affirm.

We begin by disagreeing with the parties’ characterization

of the issue on appeal. They have framed it as being what

evidence a court should consider when assessing the sufficiency

of the evidence for double jeopardy purposes. We see the

proper inquiry to be whether it is open to a defendant in these

circumstances to raise a double jeopardy claim at all based

upon the purported insufficiency of evidence at the first trial.

The answer, we believe, is “no.”

In Richardson v. United States, 468 U.S. 317, 104 S.Ct.

3081, 82 L.Ed.2d 242 (1984), the Supreme Court refused to

consider a similar claim involving a district court’s ordering of

a retrial following a hung jury. Defendant objected to the new

trial order, arguing that the government’s evidence at the first

trial was legally insufficient for conviction on the “hung”

counts. Accordingly, under the doctrine articulated in Burks

v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1

(1978) ,' defendant argued that a retrial would violate his con-

stitutional protection against double jeopardy. The district

court rejected both assertions, a ruling the court of appeals

' In Burks, the Supreme Court held that where an appellate court has set

aside a conviction solely bécause of insufficient evidence, forcing a defendant

to stand retrial would violate the double jeopardy clause.

A-6

saw as non-final and thus not appealable. The Supreme Court

reversed the circuit court’s decision of non-appealability,

holding that Abney allowed an interlocutory appeal to be

brought.

Having established appellate jurisdiction, the Supreme

Court then turned to defendant’s double jeopardy claim. It

ruled that where a mistrial is ordered because of a hung jury,

defendant has no valid double jeopardy claim to prevent his

retrial “[rjegardless of the sufficiency of the evidence at peti-

tioner’s first trial.” 104 $.Ct. at 3086. The Court reasoned that

the protection afforded by the double jeopardy clause arises

only “if there has been some event, such as an acquittal, which

terminates the original jeopardy.” Jd. Ruling that the judicial

declaration of a mistrial resulting from the failure of the jury

to reach a verdict is not an event which terminates the initial

jeopardy, the Court held that, wholly apart from the legal suf-

ficiency of the evidence at the first trial, defendant could be

retried without violating his constitutional rights. This result,

the Court emphasized, helped serve “ ‘society's interest in giv-

ing the prosecution one complete opportunity to convict those

who have violated its laws.’ ” Id. at 3085, quoting Arizona v.

Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717

(1978).

In concluding that defendant could be retried, the Court

refused to read Burks as resulting in “the sweeping change in

the law of double jeopardy which petitioner would have us

hold.” 104 S.Ct. at 3085. It described Burks as holding merely

“that once a defendant obtained an unreversed appellate rul-

ing that the Government had failed to introduce sufficient

evidence to convict him at trial, a second trial was barred by

the Double Jeopardy Clause.” Jd. The court pointed out that

Burks, decided in 1978, had reversed earlier precedent and

“did not extend beyond the procedural setting in which it

arose.” Id.

A-7

We believe that the reasoning of Richardson controls the

instant appeal. It is true the Richardson decision focused on

the circumstances surrounding a hung jury, but the principles

upon which the Court relied are equally applicable here. Just

as society has a strong interest in retrying a defendant after his

jury cannot agree on a verdict, so it also has a strong interest in

providing the government with a full and fair opportunity to

prosecute a defendant whose conviction is reversed due to a

trial error. The Supreme Court recognized as much in Burks,

stating that

reversal for trial error. . .does not constitute a decision to

the effect that the government has failed to prove its case.

As such, it implies nothing with respect to the guilt or

innocence of the defendant. Rather, it is a determination

that a defendant has been convicted through a judicial

process which is defective in some fundamental respect

.... When this occurs, the accused has a strong interest

in obtaining a fair readjudication of his guilt free from

error, just as society maintains a valid concern for insur-—

ing that the guilty are punished.

437 U.S. at 15, 98 S.Ct. at 2149. See also Tibbs v. Florida, 457

U.S. 31, 40, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982)

(“society would pay too high a price ‘were every accused

granted immunity from punishment because of any defect

sufficient to constitute reversible error in the proceedings

leading to conviction,’ ” quoting United States v. Tateo, 377

U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) ).

Of equal importance, cases reversed for trial error do not

pose “ ‘an unacceptably high risk that the Government, with

its superior resources, will wear down the defendant’ and

obtain a conviction solely through its persistence,” Tibbs v.

Florida, 457 U.S. 31, 43, 102 §.Ct. 2211, 2219, 72 L.Ed.2d

652 (1982), quoting United States v. DiFrancesco, 449 U.S.

117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), a primary concern

A-8

of the double jeopardy clause. Rather, in the initial trial, the

government presented its best case and succeeded in gaining a

conviction. Merely because it introduced evidence the appel-

late tribunal ruled inadmissible, the government should not be

presumed to have acted wrongfully. The evidence survived the

scrutiny of the trial judge. As in the present case, the error in

admitting the evidence often involves a close judgment call

which a prosecutor could not be expected to predict. Once the

matter is determined, it is only fair that the government,

acting on society’s behalf, be permitted to review all the valid

evidence in its possession, including evidence it may have

withheld as surplus the first time around, and continue the

prosecution if that is deemed justified.

[1] Applying Richardson to the case at bar, we affirm the

retrial order. Porter cannot argue that the vacating of his con-

viction for legal error, on direct appeal from the first trial,

marked the end to his original jeopardy; the doctrine of con-

tinuing jeopardy, implicit in United States v. Ball, 163 U.S.

662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and made explicit

more recently, see Justices of Boston Municipal Court v.

Lydon, 466 U.S. 294, 104 S.Ct. 1805, 1813-14, 80 L.Ed.2d

311 (1984); Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757,

1761, 26 L.Ed.2d 300 (1970), has long since rejected such

claims. Cf. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982) (no double jeopardy violation to retry a

defendant after district court reversed conviction found to be

against the weight of the evidence); Burks v. United States,

437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (double jeop-

ardy clause does not bar retrial after conviction for trial error).

Just as Richardson’s initial jeopardy was not terminated by the

mistrial order, so Porter’s initial jeopardy was not terminated

by this court’s decision, on direct appeal, to grant him a new

trial because of the district court’s error in admitting inadmis-

sible evidence. As in Richardson, it is irrelevant to consider the

A-9

sufficiency of the government’s evidence at the first trial,

however that is to be gauged. No “double” jeopardy question

can arise at this point in time, since the original jeopardy has

never ended.

[2] Thus, we hold that where a conviction has been re-

versed due to trial error and a new trial ordered, and where,

after remand, defendant raises a double jeopardy claim to bar

his retrial, neither the district court, nor this court on an

Abney appeal, need examine the sufficiency of the evidence at

the first trial.2 The situation is, of course, entirely different

when the initial conviction was reversed on direct appeal for

insufficiency of evidence. In such event, Burks prohibits a

retrial.

The district court's judgment is affirmed.

® Our decision is consistent, in practical effect, with the outcome in cases

in five other circuits. See, e.g., United States v. Key, 725 F.2d 1123, 1127

(7th Cir. 1984); Linam v. Griffin, 685 F.2d 369, 373-74 (10th Cir. 1982),

cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983); United

States v. Sarmiento Perez, 667 F.2d 1239, 1239-40 (5th Cir.), cert. denied,

459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 75 (1982); United States v. Harmon,

632 F.2d 812, 814 (9th Cir. 1980); United States v. Block, 590 F.2d 535,

543-44 (4th Cir. 1978). These courts, in cases decided before Richardson,

uniformly held, when evaluating a double jeopardy challenge to a retrial

order after vacation of a conviction for trial error, that all the evidence

presented at the initial trial—even that later found to be unconstitutionally

admitted—must be counted.

Although Richardson leads us to a different analysis than was employed

in these cases, the practical result is much the same, since by counting the

illegally admitted evidence those courts in virtually all instances would deny

the validity of double jeopardy claims based on the theory that the prosecu-

tion’s evidence at the first trial was insufficient. In light of Richardson, we

merely hold that where the first conviction was vacated for legal error, not

insufficiency of evidence, the concept of continuing jeopardy rules out a

double jeopardy claim based on purported insufficiency of evidence at the

first trial.

A- 10

United States Court of Appeals

For the First Circuit

Nos. 83-1791 to 83-1793 and 83-1806.

UNITED STATES,

APPELLEE,

Paut C. PORTER,

DEFENDANT, APPELLANT.

UNITED STATES,

APPELLEE,

Wa ter G. BAKER,

DEFENDANT, APPELLANT.

UNITED STATES,

APPELLEE,

FREDERICK L. HEARN,

DEFENDANT, APPELLANT.

UNITED STATES,

APPELLEE,

Larry RESERVITZ,

DEFENDANT, APPELLANT.

Hearp Aue. 6, 1984.

Decipep May 14, 1985.

A-1l

In joint trial, defendants were convicted in the United

States District Court for the District of Massachusetts, John J.

McNaught, J., of participating in a conspiracy to possess with

intent to distribute marijuana. One defendant also was con-

victed of distribution of marijuana. Defendants appealed. The

Court of Appeals, Perez-Gimenez, District Judge, sitting by

designation held that: (1) one defendant’s attempt to contact

his attorney constituted exercise of his right to counsel; (2) any

statements taken after defendant had asserted his right to

counsel were obtained in violation of his constitutional rights

and should have been suppressed; (3) Government’s conduct

was not so outrageous as to constitute violation of second defen-

dant’s right to due process of law; (4) defendants were not en-

titled to severance; and (5) no prejudicial variance occurred

when Government allegedly offered evidence as to con-

spiracies that were not contained in indictment.

Affirmed in part, vacated in part and remanded.

Levin H. Campbell, Chief Judge, filed dubitante opinion.

Morris M. Goldings, Boston, Mass., with whom Richard S. Jacobs, and

Mahoney, Hawkes & Goldings, Boston, Mass., were on brief, for defendant,

appellant Paul C. Porter.

Willie Davis, Boston, Mass., for defendant, appellant Larry Reservitz.

David E. Lewis, Boston, Mass., with whom Jeffrey Denner, Boston,

Mass., was on brief, for defendant, appellant Walter Baker.

Paul V. Buckley, Boston, Mass., on brief, for defendant, appellant

Frederick L. Hearn.

Sydney Hanlon, Asst. U.S. Atty., Boston, Mass., with whom William F.

Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before

CampBELL, Chief Judge,

Bowness, Circuit Judge, and

PrEREz-GIMENEZ,* District Judge.

* Of The District of Puerto Rico, sitting by designation.

A-12

PrerEz-GIMENEzZ, District Judge.

Before us are the appeals of several defendants convicted by

jury trial of participating in a conspiracy to possess with intent

to distribute marijuana. Instead of writing separate opinions,

we consolidate them and deal with all the claims raised by

_appellants in one opinion. We will first set forth the facts upon

which many of the defendants’ claims depend with a more

detailed description of the facts, when necessary, as to each

defendant. We then consider the claims raised by each

defendant.

The Facts

In mid-October 1982, Ernesto Gonzalez, informant for the

Washington, D.C., District Office of the Federal Drug En-

forcement Administration (hereinafter referred to as DEA),

called defendant-appellant Walter Baker to persuade him to

purchase or find purchasers for approximately 10,000 pounds

of marijuana. Between mid-October and mid-December

numerous calls were made by Gonzalez to defendant Baker

from the DEA Office. During the latter period, DEA Special

Agents Andrew Sherbine and Michael Pavlick participated in

some of the calls in their roles as drug dealers. Four of these

joint calls were recorded by the agents and the recordings were

introduced as exhibits at the trial. On December 16, 1982,

DEA agents Pavlick and Sherbine arrived in Boston with the

informant Ernesto Gonzalez. On that same day the informant

introduced the two agents to defendant-appellant Baker. They

posed as the leaders of a drug organization with access to

approximately 16,000 pounds of marijuana secreted in the

northern Virginia area and to whom Gonzalez owed a

substantial sum of money for other drug related transactions.

Baker traveled to Norfolk, Virginia, to view the marijuana,

which DEA agents had seized in a prior case. In February of

1983, Sherbine and Pavlick came to Boston with the bales of

marijuana. Pavlick met with Baker at the Bostonian Hotel on

February 23, 1983, where Baker informed him that he was

ey RAINCOAT POPES BINED

A-13

going to meet with an expert in marijuana quality. Later,

Baker was observed meeting with defendant-appellant Paul

Porter. Porter accompanied Baker to the Bostonian Hotel.

Agents Pavlick and Sherbine agreed that they would provide

Baker with a sample of the marijuana. Pavlick and Sherbine,

in a car containing one bale of marijuana, followed Porter and

Baker to Water Street. Sherbine and Baker cut approximately

eight ounces of marijuana out of the bale, and Baker took it

back to Porter’s car and handed it to him. Then, Porter drove

the car with Baker to Raymond’s Restaurant, in Brookline,

where they met with defendant-appellant Larry Reservitz.

The three got into Reservitz’s car and travelled to Porter’s

office. Porter went inside and later they all went into Baker’s

apartment. Shortly before 9:00 P.M. they went to City Hall

Plaza, in Boston. Reservitz got out of the car carrying a brown

bag and went into Werner’s Restaurant, on City Hall Plaza. In

the restaurant he met defendant-appellant Frederick Hearn

and left the brown bag with Hearn. A short time later Hearn

left and put the bag in the trunk of his car. At approximately

9:30 P.M. Baker spoke to Pavlick and said that the samples

had been given and that the transaction would occur the

following day.

The next day, February 24, Baker met with Pavlick a

number of times. At one point Baker sent defendant David

Goldenberg, who was acquitted at trial, to pick up a second

sample.

The following morning Pavlick and Sherbine met with

‘Baker and Reservitz. Baker told the agents that he had seen the

$200,000 in cash which the group would provide as down pay-

ment. Reservitz told Pavlick to send the truck with marijuana

to the Howard Johnson’s on the Southeast Expressway. Reser-

vitz, Baker, Pavlick and Sherbine, travelling in Reservitz’s car,

met the truck there and led it to Puritan Mall, in Dorchester.

At the Puritan Mall, Reservitz met with defendant Hobart

Willis, who was acquitted at trial, and told Pavlick to go with

A.14

Willis to see the money. Pavlick got into a car driven by Willis

with Hearn as a passenger. Willis and Hearn then drove

Pavlick a short distance away and parked next to Hearn’s car.

From the trunk of the car Hearn produced $200,000 in cash in

two shopping bags. Pavlick gave the arrest signal and the

agents put defendants Reservitz, Baker, Willis and Hearn

under arrest. Porter and Goldenberg were arrested later on

John Doe warrants.

Five of the defendants were indicted by a grand jury on

March 9, 1983, on two counts. The first count charged all five

with conspiracy to possess with intent to distribute more than

1,000 pounds of marijuana, in violation of 21 U.S.C. §§ 846,

841(a)(1) and 841(b)(6). The second count charged Baker,

Porter, and Reservitz with distribution of marijuana, in viola-

tion of 21 U.S.C. § 841(a)(1). On March 16, the grand jury

returned a superseding indictment adding defendant Golden-

berg to the conspiracy count. The six defendants were tried

together to a jury in the United States District Court. On

September 2, 1983, the jury found Baker guilty as charged;

Porter, Reservitz and Hearn were found guilty of the first

count; and the jury acquitted Goldenberg and Willis.

1. Porter's Suppression Claim

On appeal, Porter challenged the denial of his motion to

suppress certain post-arrest statements made to DEA agents.

On February 28, 1983, Special Agents Fencer, Pasquarello,

and Martin, of the DEA, went to the business office of the

defendant-appellant Paul C. Porter. Appellant, who was

present at his office, was arrested by the agents. After inform-

ing appellant of his Miranda rights, the DEA agents

transported him to the DEA headquarters at the JFK

Building, in Boston. Agents then proceeded to strip-search

appellant. He then was brought to a small interrogation room.

He was again informed of his Miranda rights and asked if he

would like to make a phone call. According to appellant, he

A-15

made two phone calls, one to the information operator to get

the number for his attorney, and one to the attorney's office.

At the suppression hearing, the government and appellant

entered into a stipulation, in lieu of the testimony of the attor-

ney, that when he returned to his office that day he found a

call slip from Paul Porter. After appellant made his phone

calls, DEA Group Supervisor Garidotto entered the interroga-

tion room. He asked the agents if appellant had been advised

of his constitutional rights and if he understood his rights.

They answered in the affirmative. Garidotto then asked appel-

lant if he understood his rights, and he answered that he did.

Supervisor Garidotto then asked if appellant knew why he was

arrested and proceeded to interrogate him. Porter then made

the inculpatory statements.

Appellant moved to suppress the post-arrest statement on

the grounds that he “did not knowingly and intelligently

waive his right to remain silent, his right to obtain advice of

counsel prior to submitting to questioning, and his right to

have an attorney present during questioning.” After an

evidentiary hearing, the trial court denied the motion because

it found Porter's statement to be voluntary and intelligently

made. Agent Fencer testified™as to Porter's inculpatory

statements at trial.

The issue before us is whether Porter's post-arrest statements

were obtained in violation of his constitutional right to have

counsel present during custodial interrogation. We find that

Porter's incriminatory statements were obtained in violation of

his constitutional rights, and we must therefore reverse the

district court.

[1. 2] An accused person in custody has the absolute right

to remain silent and to have an attorney present during any

questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966). The Fifth Amendment requires the

exclusion of any statement made by an accused during

custodial interrogation unless he has been advised of his right

A-16

to remain silent and have an attorney present during question-

ing and he has voluntarily waived those rights. The Supreme

Court held in Edwards v. Arizona, 451 U.S. 477, 484-485, 101

S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981) that onee an

accused has invoked the right to counsel, he is not subject to

further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates fur-

ther communication, exchanges, or conversation with the

police. Furthermore, “a valid waiver of that right cannot be

established by showing only that he responded to further

police-initiated custodial interrogation even if he has been

advised of his rights.” Id., at 484, 101 S.Ct., at 1885.

Porter alleges that he asserted his right to counsel by making

a telephone call to his attorney in the presence of DEA Agent

Pasquarello and that having exercised his right to counsel, the

custodial interrogation had to cease and could only resume at

his own initiative. The government contends that the accused

waived his right to have counsel present during the inter-

rogation.

[3] The district judge specifically found as a fact that

Porter made two telephone calls, one to the operator seeking

information and the other to his attorney's office. In Miranda,

338 U.S. at 444-45, 86 S.Ct. at 1612-13, the Supreme Court

indicated that the assertion of the right to counsel could be

made “in any manner and at any stage of the process.” Porter's

attempt to contact his attorney constituted an exercise of his

right to counsel. See, e.g., Silva v. Estelle, 672 F.2d 457 (5th

Cir. 1982); United States v. Lilla, 534 F.Supp. 1247 (N.D.

N.Y. 1982); Gorel v. United States, 531 F.Supp. 368 (S.D.

Texas 1981).

The constitutionality of the DEA agent’s conduct in this case

has to be evaluated under the prophylactic rule established in

Edwards. The court below found that Porter's incriminatory

statements were voluntarily and intelligently made; that he

knew of his right to counsel and of his right to stop the ques-

A-17

tioning at any time. The test enunciated by Edwards is not

whether the incriminatory statements were made voluntarily

d intelligently, but whether once the accused invoked his

right to counsel, he has initiated further communications on

the subject matter of the investigation, and if he has done so,

whether he knowingly and intelligently waived his right to

counsel. Edwards, supra; Oregon v. Bradshaw, 462 U.S.

1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). See, e.g.,

Watkins v. Callahan, 724 F.2d 1038 (1st Cir. 1984) (appellant

waived his previously invoked right to counsel by initiating the

post telephone call conversation).

Porter's attempt to contact his attorney was apparently

disregarded by Agent Pasquarello, and, thus, Supervisor

Garidotto was not advised that Porter had asserted his right to

counsel.' However, “once a suspect has invoked the right to

counsel, knowledge of that request is imparted to all law

enforcement officers who subsequently deal with the suspect.”

United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir. 1983).

See also, United States v. Downing, supra; White v. Fink-

beiner, 687 F.2d 885, 887, n. 9 (7th Cir. 1982), cert. grant. &

judgm. vac. for other reasons, Fairman v. White, __ U.S. _,

104 S.Ct. 1433, 79 L.Ed.2d 756 (1984).

[4] The fact that Garidotto asked the accused if he

understood his rights did not establish a waiver of Porter's

right to counsel. Merely asking the accused whether he

understood his rights does not satisfy the duties of an inter-

rogating officer or make any statement the accused might then

make admissible. Miranda requires the interrogating officer to

go further and make sure that the accused, knowing his rights,

voluntarily relinquishes them. United States v. Christian, 571

F.2d 64 (Ist Cir. 1978).

' As we stated in United States v. Downing, 665 F.2d 404 (1st Cir. 1981),

“[l]Jaw enforcement officers working in teams should be discouraged from

violating the accused’s constitutional rights by failing to ascertain or advise

one another whether those rights had been previously asserted.” Id. at 407.

A-18

[5] Any statements taken after Porter had asserted his

right to counsel and Garidotto had initiated further interroga-

tion, cannot be the result of waiver but must be presumed a

product of compulsion, subtle or otherwise. See, United States

v. Downing, supra; United States v. Priest, 409 F.2d 491 (5th

Cir. i969). Appellant’s incriminatory statements were

obtained in violation of his constitutional rights and should not

have been admitted at trial.

[6] When trial error infringes on constitutional rights we

have previously held that we must reverse unless we find that

the error was harmless beyond a reasonable doubt. United

States v. Christian, 571 F.2d at 69-70. Such doubt can be

raised by a “reasonable possibility that the evidence com-

plained of might have contributed to the conviction.” Fahy v.

State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d

171 (1963); Roy v. Hall, 521 F.2d 120, 123 (1st Cir. 1975).

Porter’s incriminatory statements were introduced at trial

through the testimony of Agent Fencer. Although there was

other evidence against appellant, we cannot say that the

statements were not a contributing factor to the conviction.

Porter’s conviction must be reversed.

2. Baker’s Claim of Outrageous Government Conduct

Defendant-appellant Walter Baker does not argue entrap-

ment on this appeal. What Baker claims is that the trial court

erred by failing to grant his motion to dismiss the indictment

because of the unreasonable conduct on the part of govern-

ment agents which violated his right to due process of law

under the Fifth Amendment.

The Supreme Court has left open the possibility that “out-

rageous” government involvement in a crime may violate a

defendant’s right to due process despite his predisposition to

commit the crime. Hampton v. United States, 425 U.S. 484,

491-495, 96 S.Ct. 1646, 1650-1652, 48 L.Ed.2d 113 (1976)

(Powell, J., joined by Blackman, J., concurring in the judgment);

A-19

Id., at 495-500, 96 S.Ct. at 1652-1655 (Brennan, J., dissent-

ing, joined by Stewart and Marshall, J.J.); United States v.

Rodriguez Ramos, 704 F.2d 17 (1st Cir. 1983), cert. denied,

463 U.S. 1209, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983);

United States v. Parisi, 674 F.2d 126 (1st Cir. 1982); United

States v. Caron, 615 F.2d 920, 921 (Ist Cir. 1980); United

States v. Johnson, 565 F.2d 179, 181, 182 (1st Cir. 1877), cert.

denied, 434 U.S. 1075, 98 S.Ct. 1264, 55 L.Ed.2d 780 (1978).

However, Justice Powell emphasized in his concurrence that

the “[ police overinvolvement in crime would have to reach a

demonstrable level of outrageousness before it could bar con-

viction”, noting that “[t]his would be especially difficult to

show with respect to contraband offenses, which are so dif-

ficult to detect in absence of undercover Government involve-

ment.” Hampton, 425 U.S. at 495, n. 7, 96S.Ct. at 1653, n. 7.

Baker alleges that Gonzalez called him in mid-October 1982

claiming that he owed fifty or sixty thousand dollars to drug

dealers and requesting Baker’s help in finding buyers for the

dealers’ marijuana in Boston. Baker further alleges that he

refused to help Gonzalez but that Gonzalez continued to call

him with increased frequency complaining that he feared for

his life and the safety of his wife and children because of the

debt he owed the drug dealers from Miami. According to

Baker’s testimony, Gonzalez wanted Baker to pose as a big

drug dealer pretending to be interested in purchasing mari-

juana to give him time to search for real buyers in Boston.

Baker testified that on November 1982 Gonzalez once again

called him and this time he threatened that if Baker refused to

act the part of a big drug dealer, that Gonzalez would tell the

drug dealers that Baker was the one who owed him the fifty

thousand dollars he could not pay to the dealers.

Baker contends that due to the threatening conduct of the

DEA informant he had no choice but to become involved in

the criminal enterprise, either in the dangerous role of a dealer

refusing to pay a debt or the less dangerous role of a potential

buyer.

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The question to be answered is whether the government's

inducement of defendant to commit the crime could be held so

outrageous so as to preclude prosecution on the grounds of due

process. United States v. Caron, supra at 921. We must bear in

mind that this case is a drug case where greater government

involvement is permissible because of the seriousness of the

narcotics traffic and the difficulty of apprehending offenders.

Hampton, supra, 425 U.S. at 495, n. 7, 96 S.Ct. at 1653, n. 7;

United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637,

1643, 36 L.Ed.2d 366 (1973); United States v. Parisi, supra, at

127.

There is no evidence that Baker was threatened with bodily

harm when he met for the first time with informant Gonzalez

and agents Pavlick and Sherbine on December 1982, nor that

he was under a continuous threat during the time the trans-

action took place. See. e.g., Greene v. United States, 454 F.2d

783 (9th Cir. 1971) (government conceded that its agent used

veiled threats to induce crime); United States v. Belzer, 743

F.2d 1213, 1217 (7th Cir. 1984), cert. denied, Clements v.

United States, __ U.S. __, 105 S.Ct. 788, 83 L.Ed.2d 781

(1985) (if Secret Service agents through the undercover infor-

mant had made a credible threat of violence toward the defen-

dant or his family members, that fact would have to be con-

sidered in assessing defendant's outrageous conduct claim).

In United States v. Caron, 615 F.2d 920 (1st Cir. 1980), a

case similar to the one at bar, the defendant contended that he

should have received a directed verdict of acquittal because of

the government’s repeated badgering, ignoring his repeated

assertions that he wanted nothing to do with the illegal fire-

arm activity. The Court decided that defendant’s testimony as

to the alleged badgering and protestations that he wanted

nothing to do with the illegal activity was contradicted by the

government agent’s testimony.

Likewise, Baker’s testimony was contradicted by the

testimony of Agents Sherbine and Pavlick.? The record indi-

2 DEA informant Gonzalez was made available to the defense but was not

called to testify.

A-21

cates that the trial judge explicitly stated that he did not

believe Baker’s testimony.® The court could properly consider

the incredibility of Baker’s story, United States v. Johnson,

supra, his failure to call the informant Gonzalez to testify for

corroboration, and the government’s contrary offer of proof.

See, e.g., United States v. Russo, 540 F.2d 1152 (lst Cir.

1976), cert. denied, 429 U.S. 1000, 97 S.Ct. 529, 50 L.Ed.2d

611 (1976).

[7] There was ample evidence that Baker ide and

eagerly conspired with government agents and the informant

to distribute the contraband substance in Boston. Although the

drug was furnished by the government, Baker relied on his

own sources to procure the potential buyers with the $200,000

requested as down payment for the drug transaction. We do

find that the government’s conduct was not more outrageous

* Judge McNaught said:

I will state, if it’s any consolation, other than Mr. Baker, I base none of

my findings on statements of Mr. Baker. Obviously, I wouldn’t do

that. I didn’t believe the man anyway. I thought he was lying on the

stand through his teeth... . I didn’t credit Mr. Baker with anything

while he was on the witness stand except perjury.

* Baker relies heavily on United States v. Twigg, 588 F.2d 373 (3rd Cir.

1978), which is the only court of appeals decision since Hampton tc vacate a

conviction on the basis of outrageous conduct. Twigg is distinguishable from

the case at bar because the Drug Enforcement Agency was excessively and

impermissibly involved in the manufacture of methamphetamine. The

government agents originated the idea of establishing the laboratory of

illegal methamphetamine, and the informant was “completely in charge” of

the production process and supplied all expertise. United States v. Belzer, 743

F.2d 1213, at 1218 n. 5 (7th Cir. 1984). Appellant Baker, however, was

clearly capable of conspiring to purchase and distribute the marijuana

without the active aid and supervision of the government. Additionally, the

Third Circuit, in United States v. Beverly, 723 F.2d 11, 12 (3rd Cir. 1983),

has stated that the majority in Twigg relied on United States v. West, 511

F.2d 1083 (3rd Cir. 1975), which according to their view has been limited by

Hampton, supra, and United States v. Jannotti, 673 F.2d 578 (3rd Cir.),

cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982), appeal

after remand, 729 F.2d 213 (3rd Cir.), cert. denied, __ U.S. _, 105 S.Ct.

243, 83 L.Ed.2d 182 (1984).

A-22

than that which was found not to violate defendant’s constitu-

tional rights in Hampton, supra, (government both supplied

and purchased contraband substance). See, e.g., United States

v. Johnson, supra, (defendant sold cocaine in response to

agent’s demands and threats persisting over a period of

months); United States v. Romano, 706 F.2d 370 (2d Cir.

1983) (drug transaction initiated by government informant

and government supplied the drugs).

3. Baker’s Sixth Amendment Right to Confrontation.

Appellant also argues that the trial court committed rever-

sible error by restricting defendant’s cross-examination of the

government’s principal witness. Baker alleges that the limited

examination permitted by the trial court of Agent Sherbine

about the informant, his family and the incentives offered to

him by the government abridged his sixth amendment right to

confrontation.

[8-i0] The confrontation clause does not come into play

where a potential witness neither testifies nor provides

evidence at trial. United States v. Coven, 662 F.2d 162, 170

(2d Cir. 1981), cert. denied, 456 U.S. 916, 102 S.Ct. 1771, 72

L.Ed.2d 176 (1982); Mcallister v. Brown, 555 F.2d 1277 (5th

Cir. 1977); Houser v. United States, 508 F.2d 509, 518 (8th

Cir. 1974); Turnbough v. Wyrick, 420 F.Supp. 588 (E.D.Mo.

1976); affirmed, 551 F.2d 202 (8th Cir. 1977), cert. denied,

431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260 (1977).

Defendant-appeilant chose not to call the informant as a

witness when he was available. See, e.g., United States v.

Vila, 599 F.2d 21 (2d Cir. 1979), cert. denied, 444 U.S. 837,

100 S.Ct. 73, 62 L.Ed.2d 48 (1979). Moreover, the govern-

ment was under no obligation to call the informant as a

witness at trial, and a defendant has no right to confront an in-

formant who provides no evidence at trial. United States v.

Francesco, 725 F.2d 817, 822 (1st Cir. 1984); Cooper v. State

of Cal., 836 U.S. 58, 62, n. 2, 87 S.Ct. 788, 791, n. 2, 17

L.Ed.2d 730 (1967), reh. denied, 386 U.S. 988, 87 S.Ct. 1283,

18 L.Ed.2d 243 (1967).

A-23

[11] The limited information alleged by Baker to have

been provided by the government about the incentives offered

to the informant? did not in any way infringe appellant’s right

to confront the informant since he was not called as a witness.

See, United States v. Blessing, 727 F.2d 353 (5th Cir. 1984),

cert. denied, Rodriguez v. United States, __ U.S. __, 105 S.Ct.

777, 83 L.Ed.2d 773 (1985).

4. Larry Reservitz’s Claims

A. Failure to comply with Federal Rule of Criminal

Procedure 30

Larry Reservitz claims that the district court failed to

comply with Fed.R.Crim.P. 30, which requires the court to

“inform counsel of its proposed action upon the requests [for

jury instructions] prior to their arguments to the jury... .”

(emphasis added). Reservitz alleges that his theory of defense

was prejudicially affected when the court rejected the same.

The underlying facts concerning Reservitz’s objections to

jury instructions are as follows: On August 29, 1984, the day

before closing arguments began, defendant-appellant Reser-

vitz submitted a single “Supplemental Request for Instructions

to the Jury” supplementing thirty-three other written requests

which he had filed before. The supplemental request con-

cerned Reservitz’s procuring agent theory. As described by

Reservitz, “[i]n essence a procuring agent theory is a defen-

dant, and in this particular case Larry Reservitz is procuring a

buyer for marijuana and he acted solely.as the agent for the

person who was selling the marijuana and that person was a

government agent, then Larry Reservitz has not violated the

federal narcotic law.”

5 The testimony of Agent Sherbine revealed the following: Gonzalez’s

status as a paid informant, the amount he was paid, his arrest in Texas on

drug charges, and DEA’s efforts to help him with Texas authorities.

A-24

On August 30, 1984, the trial court held a charge conference

where the court and the parties discussed the proposed jury in-

structions and the court indicated the general direction it

would take. Near the end of the conference the following

ensued:

Mr. Davis: There is something else. You forget me

altogether, Judge. You have never commented on my re-

quest for instructions. ;

The Court: They were so beautifully done that I used

these as an outline.

Mr. Davis: Then I trust you will give it as I requested.

The Court: If at the conclusion I have forgotten

something or if you think I have done something wrong,

I'll not be offended to have you tell me so.

Mr. Davis: I rose only because in my argument I

want to use my request.

The Court: You mean rather than use my language?

Mr. Davis: No, sir. I'd rather use yours if you are

going to give it as I requested. But I don’t want to be in

the position of arguing something that the court doesn’t

think I should argue. -

The Court: I have no quarrel with the gist of what

anybody has submitted me.

At closing arguments Reservitz’s attorney stated to the jury

that the judge would instruct them that if the evidence showed

that Reservitz was an agent for the seller, the jury would have

to find him not guilty. The United States Attorney objected

and the court sustained the objection because there was no

evidentiary basis for the procuring agent theory and so in-

formed the jury. Counsel for Reservitz made timely objection

to the failure to give the requested supplemental instruction.

The objection was noted by the court. After the district judge

gave the instructions to the jury, Reservitz moved for a mistrial

based upon the failure of the court to follow F.R. Crim.P. 30.

A- 25

[12] The court’s apparent failure to advise Reservitz’s

counsel that he would not give the requested instruction re-

quires reversal of the conviction only if counsel’s closing argu-

ment was prejudicially affected thereby. United States v.

Smith, 629 F.2d 650 (10th Cir. 1980), cert. denied, 449 U.S.

994, 101 S.Ct. 532, 66 L.Ed.2d 291 (1980); United States v.

Lyles, 593 F.2d 182 (2d Cir. 1979); cert. denied, 440 U.S. 972,

99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Har-

vill, 501 F.2d 295 (9th Cir. 1974).

Reservitz argues that the court prejudiced his defense by

permitting his attorney to rely during the beginning of sum-

mation on the court’s unfulfilled indications regarding its in-

tended jury charge as to the supplemental request. Reservitz

contends that had the court complied with Rule 30, his at-

torney would not have made statements which later the jury

was told were erroneous. During summation the court cau-

tioned the jury, with attorney Davis’s acquiescense, to take the

law from the court and not from counsel. Under these cir-

cumstances we fail to find any basis on which to conclude that

the counsel’s credibility in the eyes of the jury was compro-

mised by the tardy revision of the requested instruction. See,

e.g., United States v. Lyles, supra. Davis does not even argue

how he would have significantly altered his summation had he

known tet the court was going to derty his supplemental re-

quest. After the court sustained the government’s objection,

Davis’s argument was not restricted in any way. See, United

States v. Scheffer, 463 F.2d 567, 573-74 (5th Cir. 1972), cert.

denied, 409 U.S. 984, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972).

Reservitz has failed to carry his burden of demonstrating pre-

judice resulting from the trial court’s departure from Rule 30.

Furthermore, the omission of the requested instruction was

not fundamentally prejudicial to the rights of the defendant

because the requested instruction was not appropriate in form

and substance. As this Court has previously stated: “In

general, a defendant is entitled to an instruction on his theory

of the case if (a) there is evidence to support it, and (b) it is

A-26

appropriate in form and substance. United States v. Leach,

427 F.2d 1107, 1112-13 (1st Cir. 1970) [cert. denied, 400 U.S.

829, 91 S.Ct. 95, 27 L.Ed.2d 59 (1970) ].” United States v.

Zeuli, 725 F.2d 813, 817 (1st Cir. 1984).

While a defendant could avoid being convicted under

former section 4705 of Title 26, United States Code, making it

unlawful to sell, barter, exchange, or give away narcotic drugs

by presenting evidence to the effect that, in a given sale in

which he was an intermediary, he was acting as an agent for

the ultimate purchaser rather than a seller himself. United

States v. MacDonald, 455 F.2d 1259, 1262 (Ist Cir.), cert.

denied, 406 U.S. 962, 92 S.Ct. 2073, 32 L.Ed.2d 350 (1972),

the “purchasing agent” theory is not a valid defense under the

broader provisions of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, 21 U.S.C. § 801, et seq., which

replaced former section 4705 by making it unlawful to

distribute or possess with the intent to distribute a controlled

substance. United States v. Bailey, 505 F.2d 417 (D.C. Cir.

1974), cert. denied, Sloan v. United States, 420 U.S. 961, 95

S.Ct. 1350, 43 L.ED.2d 438 (1975).

Reservitz was charged with conspiracy to possess with intent

to distribute and with distribution of a controlled substance, in

violation of 21 U.S.C. § 841(a)(1). 21 U.S.C. § 801, et seq.,

makes distribution an offense, 84l1(a)(1), and defines

“distribute” to mean “to deliver” (other than by administering

or dispensing) a “controlled substance.” § 802(11). Deliver is

defined as “the actual, constructive, or attempted transfer of a

controlled substance, whether or not there exists an agency

relationship.” § 802(8).

[13] We agree with the other circuits which addressed the

issue and have held that the “procuring agent” instruction is

not applicable to prosecutions charging unlawful distribution

of a controlled substance in violation of 21 U.S.C. § 841(a)(1).

See, United States v. Marquez, 511 F.2d 62 (10th Cir. 1975);

United States v. Pierce, 498 F.2d 712, 713 (D.C. Cir. 1974);

United States v. Miller, 483 F.2d 61, 62 (5th Cir. 1973), cert.

A-27

denied, 414 U.S. 1159, 94 S.Ct. 919, 39 L.Ed.2d 112 reh.

denied, 415 U.S. 952, 94 S.Ct. 1477, 39 L.Ed.2d 568 (1974);

United States v. Masullo, 489 F.2d 217, 220-221 (2d Cir.

1973); United States v. Pruitt, 487 F.2d 1241, 1243-1245 (8th

Cir. 1973); United States v. Hernandez, 480 F.2d 1044,

1046-1047 (9th Cir. 1973).

B. The Taking of Notes by Jurors

[14] We now consider Reservitz’s remaining objections.

Reservitz contends that the trial court erred in allowing the

jurors to take notes during opening statements, closing

statements, and charge to the jury. The decision to allow the

jury to take notes and use them during deliberations is a matter

within the discretion of the trial court. 4 bsent abuse of discre-

tion, the action of the trial court will not be disturbed. United

States v. Rhodes, 631 F.2d 43 (5th Cir. 1980); United States v.

Johnson, 584 F.2d 148 (6th Cir. 1978); cert. denied, 440 U.S.

918, 99 S.Ct. 1240, 59 L.Ed.2d 469 (1979); United States v.

Maclean, 578 F.2d 64 (3rd Cir. 1978); United States v. An--

thony, 565 F.2d 533 (8th Cir. 1977); cert. denied, 434 U.S.

1079, 98 S.Ct. 1274, 55 L.Ed.2d 787 (1978); United States v.

Riebold, 557 F.2d 697 (10th Cir. 1977); cert. denied, 434 U.S.

860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977); United States v.

Bertolotti, 529 F.2d 149 (2d Cir. 1975); United States v.

Braverman, 522 F.2d 218 (7th Cir. 1975); cert. denied, 423

U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975); Toles v.

United States, 308 F.2d 590 (9th Cir. 1962), cert. denied, 375

U.S. 836, 84 S.Ct. 79, 11 L.Ed.2d 66 (1963), reh. denied, 375

U.S. 949, 84 S.Ct. 353, 11 L.Ed.2d 280 (1963); Goodloe v.

United States, 188 F.2d 621 (D.C. Cir. 1950); cert. denied,

342 U.S. 819, 72 S.Ct. 35, 96 L.Ed. 619 (1951); Chicago &

N.W. Ry. v. Kelly, 84 F.2d 569 (8th Cir. 1936).

[15] Reservitz has not shown how the trial judge abused

his discretion. The record shows the painstaking care the judge

displayed when he instructed the jurors on their note-taking.

No error is manifest.

A- 28

C. Severance and Antagonistic Defenses

[16,17] Reservitz next asserts that the district court com-

mitted error when it failed to sever Reservitz’s trial from

Baker’s because their defenses were antagonistic. The grant or

denial of severance is clearly within the sound discretion of the

trial court and its action on such a motion will be overturned

only where there has been a clear abuse of such discretion.

United States v. Davis, 623 F.2d 188, 194 (1st Cir. 1980). The

burden is upon appellant Reservitz to make a strong showing

of prejudice in order to show that a denial of his severance

motion constituted an abuse of discretion. United States v.

Bautista, 731 F.2d 97 (1st Cir. 1984); United States v. Arruda,

715 F.2d 671 (ist Cir. 1983); United States v. Lochan, 674

F.2d 960, 967 (Ist Cir. 1982). Reservitz has made no such

showing.

[18, 19] The fact that two defendants assert antagonistic

defenses does not per se require severance even if the defen-

dants are hostile or attempt to cast the blame on each other.

United States v. Davis, supra, at 194, quoting United States v.

Becker, 585 F.2d 703, 707 (4th Cir. 1978), cert. denied, 439

U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979). To obtain sev-

erance on the grounds of conflicting defenses Reservitz has to

demonstrate that “the conflict is so prejudicial and the

defenses are so irreconciliable that the jury will unjustifiably

infer that this conflict alone demonstrates that both are

guilty.” United States v. Talavera, 668 F.2d 625, 630 (1st Cir.

1982), cert. denied, Pena v. United States, 456 U.S. 978, 102

S.Ct. 2245, 72 L.Ed.2d 853 (1982); United States v. Luna, 585

F.2d 1, 5 (1st Cir. 1978), cert. denied, 439 U.S. 852, 99 S.Ct...

160, 58 L.Ed.2d 157 (1978).

Reservitz contends that he was entitled to severance because

the entrapment defense offered by Baker was antagonistic and

A-29

mutually exclusive to his defense.* Other circuits have held

that “[a] co-defendant’s reliance on entrapment does not of

itself justify reversing a refusal to sever but rather the defenses

must be antagonistic to the point of being mutually exclusive.”

United States v. Vadino, 680 F.2d 1329, 1335 (11th Cir. 1982),

460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983) (quot-

ing, United States v. Salomon, 609 F.2d 1172, 1173 (5th Cir.

1980), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76

L.Ed.2d 344 (1983). See, e.g., United States v. Mulherin, 710

F.2d 731 (11th Cir. 1983), cert. denied, Hornsby v. United

States, __. U.S. ___., 104S.Ct. 1305, 79 L.Ed.2d 703 (1984);

United States v. Moschiano, 695 F.2d 236 (7th Cir. 1982) cert.

denied, __ U.S. __, 104 S.Ct. 110, 78 L.Ed.2d 111 (1983);

United States v. Lentz, 624 F.2d 1280 (5th Cir. 1980), cert.

denied, 450 U.S. 995, 101 S.Ct. 1696, 68 L.Ed.2d 194 (1981).

[20,21] Reservitz’s theory is that he was prejudiced by the

admission into evidence of the recorded telephone conversa-

tions of the DEA agents with Baker during December 1982,

presented by the government in order to disprove entrapment.

Reservitz argues that the jury could have inferred that the tele-

phone conversations of drug transactions was evidence that

Baker had engaged in drug transactions in the past, and that

Reservitz, who is alleged to have participated in a conspiracy

with Baker to distribute drugs, might appear to the jurors to

have been one of the associates mentioned by Baker in the con-

versations. In these circumstances we find that any prejudice

to Reservitz resulting from the telephone conversations is purely

speculative,’ and “[s]peculative allegations as to possible preju-

dice do not meet the burden of showing an abuse of discretion

* Reservitz does not explain the defense which is antagonistic to Baker's en-

trapment defense. However, one of the core defenses used by Reservitz was

outrageous government conduct. The assertion by Baker of his entrapment

defense was not of itself mutually exclusive or irreconciliable with the defense

presented by Reservitz. In fact, the defense of outrageous government conduct

is akin to entrapment, not antagonistic. See United States v. Maltherin, supra,

at 736.

” Baker testified that he did not know Reservitz at the time of the conversa-

tions and that he had only met Reservitz a short time before the charged con-

spiracy dates.

A-30

in denying a motion for severance.” United States v. Becker,

585 F.2d 703, 707 (4th Cir. 1978), cert. denied, 439 U.S. 1080,

99 S.Ct. 862, 59 L.Ed.2d 50 (1979). See, United States v.

Bautista, supra, at 100. We believe that the jury was capable

of following the trial court's instruction that they were to con-

sider the evidence against each defendant separately. See,

United States v. Bautista, supra, citing, United States v.

Smolar, 557 F.2d 13, 21 (1st Cir. 1977), cert. denied, 434 U.S.

971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977). Appropriate limit-

ing instructions to the jury are an adequate safeguard against

evidentiary spillover. United States v. Moschiano, supra. It is

significant that the jury returned a verdict finding Reservitz

guilty only on Count One, the conspiracy count, while finding

Baker guilty on both counts, the conspiracy and distributing

counts. Such a discriminating verdict has been found by the

Seventh Circuit to be some indication that the jury was able to

and did consider each defendant individually. United States v.

Shelton, 669 F.2d 446, 461 (7th Cir. 1982), cert. denied, Bled-

soe v. U.S., 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454

(1982); United States v. Papia, 560 F.2d 827, 837 (7th Cir.

1977).

For all of the above reasons, we conclude that the district

court did not abuse its discretion when it denied Reservitz’'s

motion for severance.

[22] The other argument raised by Reservitz is that in

order for Baker to prove his defense of entrapment, which

allegedly was antagonistic to Reservitz’s defense, Baker would

take the stand and that once Reservitz knew Baker would take

the stand, he had to do likewise; and, therefore, Reservitz’s

right under the Fifth Amendment not to be compelled to

incriminate himself was infringed. To a similar Fifth Amend-

ment argument, the Seventh Circuit ruled that the fact that

co-defendant’s defense was allegedly so antagonistic to defen-

dant’s that once defendant knew co-defendant would take the

stand defendant had to do likewise, did not entitle the defen-

dant to severance of trial from the trial of the co-defendant

A-31

because of his Fifth Amendment right not to be compelled to

incriminate himself. United States v. Shively, 715 F.2d 260

(7th Cir. 1983), cert. denied, ___. U.S. ___., 104 S.Ct. 1001,

79 L.Ed.2d 233 (1984).

D. Refusal to Instruct Jury on Theories of the Defense

Reservitz requested the court to instruct the jury on two

theories of defense. The “procuring agent theory” and the

“outrageous government conduct theory”. The court's refusal

to do so was correct.

The refusal to instruct the jury on the “procuring agent

theory” was already dealt with, so we will only consider the

refusal to instruct on the “outrageous government conduct

theory”.

Reservitz argues that the outrageous government conduct

theory should have been submitted to the jury. United States

v. Johnson, 565 F.2d 179, 181 (1st Cir. 1977), cert. denied,

434 U.S. 1075, 98 S.Ct. 1264, 55 L.Ed.2d 780 (1978), held

that it was the court’s province to decide whether defendant's

theory of defense was such that, if believed, it would fall into

the exceptional category where fundamental fairness requires

the dismissal of an indictment because of outrageous police

conduct. We ruled that “[ whatever its possible role in resolv-

ing contested factual issues raised by an entrapment defense,

the jury is not equipped and should not be permitted to specu-

late on whether particular facts do or do not amount to funda-

mental fairness. We hold that the court properly rejected the

proposed instruction.” Jd, at 181-182. The court below prop-

erly denied appellant’s request that the jury be instructed as to

the “outrageous government conduct theory”.

5. Hearn’s Assignment of Errors

A. Severance

We now consider Hearn’s assignment of errors. First, Hearn

alleges that the trial court erred in denying his motion for sev-

A-32

erance. One of the reasons given by Hearn for requesting the

severance was because his defense was antagonistic to Baker’s

entrapment defense. This contention is without merit since

Hearn does not even state which defense is antagonistic to

Baker’s entrapment defense.

[23] Hearn further contends that he was prejudiced by the

admissibility of evidence of Baker’s prior drug dealings. Appel-

lant Hearn makes reference to Rule 404(b) of the Federal Rules

of Evidence® which governs the admissibility of evidence per-

taining to other crimes committed by a defendant. Other

crimes evidence is relevant to the issue of intent. United States

vy. Rivera Sola, 713 F.2d 866 (1st Cir. 1983). The district court

admitted the evidence of Baker’s prior drug dealings so that

the government could disprove Baker’s defense of entrapment.

The evidence was not presented to show knowledge or intent

to commit the offenses in question for Baker’s knowledge or in-

tent was not a contested issue in this case. See, e.g., United

States v. Franceso, supra; United States v. Rivera Sola, supra.

[24] There was no error in the trial court’s allowing

Baker’s prior drug dealings to be admitted into evidence

against Baker alone, nor was there any error in not severing

Hearn’s trial because of the “spill over” prejudicial effect of

that evidence in his case. See, United States v. Hernandez, 715

F.2d 548, 551 (11th Cir. 1983); cert. denied, ___ U.S. -

104 S.Ct. 1006, 79 L.Ed.2d 237 (1984); United States v.

Hines, 717 F.2d 1481, 1489 (4th Cir. 1983), cert. denied,

conisitas , 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984);

United States v. Payden, 536 F.2d 541, 543 (2d Cir. 1976),

cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291

(1976). The jurors were properly instructed to consider said

evidence only against Baker and for the specific purpose for

which it was presented.

® Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that he acted in

conformity therewith. It may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.”

A-33

B. Sufficiency of the Evidence to Sustain the Conviction of

Hearn

Hearn next argues that the district court erred in denying his

motion for judgment of acquittal because there was insuffi--—

cient evidence to sustain his conviction. Appellant Hearn

alleges that the government failed to prove beyond a reason-

able doubt the requisite intent to agree and to commit the sub-

stantive offense charged.

[25] In reviewing the denial of a motion for judgment of

acquittal, the court must consider the evidence as a whole

taken in the light most favorable to the government, together

with all legitimate inferences to be drawn therefrom to deter-

mine whether a rational trier of fact could have found guilt

beyond a reasonable doubt. United States v. George, 752 F.2d

749, 752 (1st Cir. 1985); United States v. Smith, 680 F.2d 255

(1st Cir. 1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74

L.Ed.2d 960 (1983); United States v. Pappas, 611 F.2d 399

(1st Cir. 1979); United States v. Leach, 427 F.2d 1107, 1111

(1st Cir. 1970), cert. denied, 400 U.S. 829, 91 S.Ct. 95, 27

L.Ed.2d 59 (1970).

[26] The essential element in a conspiracy count is the exis-

tence of an agreement. United States v. Smith, 680 F.2d 255, .

259 (Ist Cir. 1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738,

74 L.Ed.2d 960 (1983), which can be inferred from circum-

stantial evidence. United States v. DeLutis, 722 F.2d 902 (1st

Cir. 1983). Hearn argues that there is no evidence that he in

any way participated in the conspiracy and that the govern-

ment’s evidence does not show any further involvement in the

conspiracy than his mere association with persons involved in

criminal activities; his mere presence at the scene of the crime;

and a mere single sale of drugs which, if true, fails to establish

his participation in the conspiracy.

A-34

[27] Viewed in the light most favorable t he govern-

ment, a different story emerges. On February 23, 1983, Agent

Pavlick met with co-defendant Baker in Boston and arranged

for a sample exchange of marijuana. After the exchange with

the DEA agents co-defendants Porter and Baker met with co-

defendant Reservitz. Reservitz entered a restaurant carrying a

brown plastic bag bearing the name “Louis”. Reservitz left the

restaurant without the bag, and a short time later Hearn left

carrying the “Louis” bag. Agent Pavlick testified that that

same evening Baker told him that samples were given out.® It

is appropriate to infer that Hearn, as a representative of a

group which was to purchase the marijuana, met with Reser-

vitz to obtain one of the samples given out or being given out.

On February 24, 1983, Baker told Pavlick that everything was

all set. Next day Pavlick met with Baker and Reservitz and

arranged for the transfer of the down payment to the DEA

agents and of the marijuana to the defendants. To view the

money, upon instructions of Reservitz, Pavlick got into a car

with Willis and Hearn. He sat behind Hearn and Hearn pro-

ceeded to search him. They drove to a parking lot, where he

was shown the money which was inside the trunk of a

Cadillac. In light of those actions, Hearn’s innocent story of

being a “bodyguard” or “babysitter” to the money is inher-

ently unbelievable. See, e.g., United States v. Smith, supra.

We conclude that the evidence of Hearn’s activity was basis

enough from which a reasonable person could find that Hearn

had the requisite intent to agree to the conspiracy as charged.

The court properly denied Hearn’s motion for acquittal.

* Hearn tries to discredit Pavlick’s testimony by alleging hat in the report

he filed after defendant's arrest Pavlick stated that Baker informed him that

the samples “were going to be given out.” However, the transcript reveals

that the words used were not “were going to be given out”, but “were then

being passed out.” pani 5

A-35

C. Bruton

Hearn also assigns as error the court’s denial of the motion

for severance on grounds that the admission into evidence by

the trial court of a statement made by co-defendant Porter! to

Agent Fencer violated Bruton v. United States, 391 U.S. 123,

88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

[28] It is well established that the Supreme Court’s pro-

hibition in Bruton against the use of a non-testifying defen-

dant’s extrajudicial statements inculpating a co-defendant in a

joint trial is not applicable to a situation in which the extra-

judicial statement makes no reference to the co-defendant.

United States v. DiGregorio, 605 F.2d 1184, 1190 (1st Cir.

1979), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d

197 (1979); United States v. Cleveland, 590 F.2d 24, 28-30 (1st

Cir. 1978); United States v. Brooklier, 685 F.2d 1208, 1218

(9th Cir. 1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194,

75 L.Ed.2d 439 (1983); United States v. Webster, 734 F.2d 1048,

1054, n. 6 (5th Cir.), cert. denied, Hoskins v. United States, __

U.S. _., 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); United States

v. Guilette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434

U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States

v. Stewart, 579 F.2d 356 (5th Cir. 1978), cert. denied, 439

U.S. 936, 99 S.Ct. 332, 58 L.Ed.2d 332 (1978).

[29] An examination of the record reveals that Porter’s

extrajudicial statement did not inculpate Hearn. The state-

ment made no mention of Hearn nor even suggested Hearn’s

participation in the marijuana deal. The motion for severance

grounded on Bruton was properly denied.

stated the following: “he was only a tester for the marijuana. In fact, he did

stop at Store 24, in Kenmore Square, and purchased some papers for tobacco

to put the marijuana in, and stated that he did in fact test the marijuana. He

also stated that he would be less than candid if he didn’t state that he knew

there was a big deal going on concerning a marijuana transaction.”

A-36

D. Prejudicial Variance and Improper Spillover

Appellant Hearn argues that prejudicial variance occurred

when the government allegedly offered evidence as to con-

spiracies that were not contained in the indictment.

[30] Appellant claims that the evidence of co-defendant

Walter Baker’s previous drug dealings and of the pattern of

Baker’s dealings with the undercover agents and the informant

Gonzalez constituted evidence of multiple conspiracies.

However, the evidence about Baker’s previous drug dealings

was not introduced to show other conspiracies as such. Rather,

it was presented to disprove Baker's defense of entrapment.

The government was permitted to introduce evidence of

Baker’s drug dealings and of the two-month history of his

negotiations with undercover agents and the DEA informant

leading to the actual transaction to show that Baker was

predisposed to commit the crime and that the government

agents did not induce him to do so. Thus, this did not con-

stitute a prejudicial variance. Cf., United States v. Scanlon,

640 F.2d 144 (8th Cir. 1981), cert. denied, 451 U.S. 941, 101

S.Ct. 2025, 68 L.Ed.2d 330 (1981).

[31] Furthermore, there was no impermissible “spillover”

of evidence in this case. The government did not and could not

link Hearn to other conspiracies beyond that charged in the in-

dictment because, as we stated before, Baker’s previous drug

dealings were not introduced to show other conspiracies. Cf.,

United States v. George, supra. In fact, one conspiracy was

charged and one was proven. Moreover, the trial court

adequately instructed the jury at the time the evidence was ad-

mitted that they were to consider it as to Baker only. United

States v. Moosey, 735 F.2d 633, 635 (1st Cir. 1984).

E. Failure to Instruct on Theory of Defense

Lastly, Hearn argues that the district court erred in refusing

to instruct the jury on his theory of defense.

Hearn’s theory of defense is that he was merely safeguarding

a sum of money and that he had no knowledge of the con-

spiracy instigated by co-defendant Baker and the DEA.

A- 37

[32] The district judge charged the jury very carefully and

thoroughly on the elements of a conspiracy. Among other

things, he stressed the importance of finding that each of the

defendants were parties to an agreement to achieve an

unlawful object, and that each defendant did it knowingly,

did it wilfully, did it intentionally and not by ignorance, acci-

dent nor mistake. The court stressed: “So, in order to find a

person liable for the crime of conspiracy you would have to

find that that person knew that a conspiracy existed and

voluntarily entered into it with the intent of achieving the

illegal object of the agreement.”

We find that the instructions given were correct and

covered the substance of Hearn’s request. The trial judge did

not deprive defendant of his Sixth Amendment right to a fair

and impartial trial.

The judgment is vacated as to co-defendant Porter and

remanded to the district court for further proceedings consis-

tent hereof. As to the remaining co-defendants, the judgment

of the district court is affirmed.

Levin H. CAMPBELL, Chief Judge (dubitante)

This court’s ruling that the agents were required to stop

questioning Porter after he tried unsuccessfully to call his

attorney is not as obvious a proposition as the opinion suggests.

There are two hurdles that must be crossed before this result

can be reached. First, without a finding by the court below

that an agent actually overheard Porter’s attempt to reach his

lawyer, this court might be accused of engaging in unwar-

ranted fact-finding by assuming such was the case. Second,

even if the agent overheard the conversation, was the conver-

sation by itself enough to constitute an invocation by Porter of

the right to the presence of counsel, such as to trigger an

Edwards analysis?

A-38

As to the first issue, while the question is very close, I think

the court can properly infer, as it does, that the agents must

have been aware that Porter was trying to telephone his

attorney. The small size of the room, the admitted fact that an

agent was present during the calls, the stipulation that a

message was left for Attorney Stolzberg, and the judge’s find-

ing that Porter called information to secure the number of his

attorney, all point to the obvious conclusion that the agent in

the room overheard Porter’s attempts to reach a lawyer. While

a finding by the district judge would have been desirable, we

do not reach out unduly by making the finding ourselves.

The answer to the second question—whether Porter’s mere

telephone call, even if overheard by the police, constituted an

invocation of the right to counsel for purposes of the Edwards

rule—is more difficult. The Miranda line of cases provides

little guidance on this specific issue because those cases in-

volved situations where the defendant in some way affir-

matively expressed a desire to the police to secure the presence

of counsel before continuing to talk. See, e.g., Oregon v. Brad-

shaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983)

(“I do want an attorney before [this questioning] goes much

further”); Edwards v. Arizona, 451 U.S. 477, 478, 101 S.Ct.

1880, 1881, 68 L.Ed.2d 378 (1981) (“I want an attorney before

making a deal”); Frazier v. Cupp, 394 U.S. 731, 738, 89 S.Ct.

1420, 1424, 22 L.Ed.2d 684 (1969) (“I think I had better get a

lawyer before I talk any more. I am going to get into trouble

more than I am in now.”).

While the above cases do not shed light on whether the

police’s mere overhearing of an unsuccessful call to counsel is

enough, they do suggest that a defendant should at least verba-

lize some desire that he receive the help of an attorney before

he answers any further questions. See, e.g., Edwards, 454

U.S. at 482, 485, 101 S.Ct. at 1883, 1885 (Edwards rule

applies where right to counsel “clearly asserted” or “specifi-

cally invoked”); Miranda v. Arizona, 384 U.S. 436, 474, 86

A- 39

S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966) (“If the individual

states that he wants an attorney, the interrogation must cease

until an attorney is present... . If the individual cannot obtain

an attorney and he indicates that he wants one before speaking

to police, they must respect his decision to remain silent.’

(emphasis added).

Only two lower courts seem to have addressed the issue of

when efforts to contact an attorney, unaccompanied by any

direct assertion to police of the desire to have counsel present,

amount to an invocation of the right. In United States v. Lilla,

534 F.Supp. 1247 (N.D.N.Y. 1982), the district court found

that one defendant’s request to his mother to reach his attor-

ney by telephone was a “specific[ ] exercis[e]” of his right to

counsel. Jd. at 1279. The court then found that a second

defendant had “explicitly invoked his right to counsel by

attempting to contact his attorney directly, and by arranging

for his mechanic to reach his attorney.” Jd. at 1280.

By contrast, the district court in Gorel v. United States, 531

F.Supp. 368 (S.D.Tex. 1981), found that, although the defen-

dant apparently attempted to reach an attorney and police

officials knew of his attempts, the attempts were “in no sense

equivocal requests [for legal assistance] or efforts to obtain

present assistance” and thus Edwards was not applicable. Id.

at 370. The court relied on earlier Fifth Circuit cases that

founded the following rule for dealing with confusing or am-

bivalent requests for counsel:

whenever even an equivocal request for an attorney is

made by a suspect during custodial interrogation, the

scope of that interrogation is immediately narrowed to

one subject and one subject only. Further questioning

thereafter must be limited to clarifying that request until

it is clarified. When and if it is clarified as a present desire

for the assistance of legal counsel, all interrogation must

cease until that is provided, just as in the case of an

initial, unambiguous request for an attorney. And no

A-40

statement taken after that request is made and before it is

clarified as an effective waiver of the present assistance of

counsel can clear the Miranda bar. Thus, by [this rule, ]

we avoid attributing a talismanic quality to the word

“attorney” falling from a suspect’s lips, while at the same

time safeguarding his right to the assistance of counsel

when he wants it and says so.

Thompson v. Wainwright, 601 F.2d 768, 771-72 (5th Cir.

1979) (emphasis in original) (defendant announced that he

wanted to make a statement but added that he first wanted to

tell his story to an attorney). See also Nash v. Estelle, 597 F.2d

513 (5th Cir. 1979) (defendant stated that he wanted to have a

lawyer at some point but would rather talk to the officer

immediately). The Gorel court concluded from these cases

that any mention of an “attorney” is not necessarily an invoca-

tion of the right to counsel or even an equivocal request for

present representation. It then held that although it would

indulge a presumption that any effort to contact an attor-

ney is an invocation to the right of present representation

by counsel, where conclusions drawn from the totality of

the circumstances overwhelmingly rebut this presump-

tion, the court will decline to find Miranda violated.

Gorel, 531 F. Supp. at 372.

I think the Gorel court’s rule is only sensible, since there

could be situations where the police act in complete good

faith, without realization that the accused had any intention

of asserting a right to the immediate presence of counsel. Were -

we to apply the Gorel rule to this case, we would be left with

the issue of whether conclusions drawn from the totality of the

circumstances here rebut the “presumption” that the defen-

dant, by making abortive efforts to contact an attorney which

the police overheard, had invoked the right to present

representation by counsel. This would be essentially a factual

issue, better resolved initially by the district court than de

A-41

novo on appeal. I note that the district court found here that

Porter, a college and business school graduate who had been

well treated by the agents and whose rights had been ex-

plained to him, fully realized after failing to reach his attorney

by telephone that he had a right to stop the questioning and

nonetheless did not do so. The court said,

I’m sure he understood he had a right to stop questioning

at any time, and if in fact he was disturbed by the fact

that he couldn’t have reached his lawyer he could have

stopped talking until such time as his lawyer was

available to him.

To me, this finding suggests a belief by the judge that Porter,

in spite of making the call, never actually meant to invoke his

right to counsel since he consciously and knowingly refrained

from asserting the right to the police. And if Porter did not, in

fact, mean to invoke his right to counsel, an Edwards analysis

was not required, and the statements made by Porter shou!d

not be suppressed.

In sum, I trust this case will not be viewed as creating a per se

rule that any time a defendant seeks to contact an attorney, no

matter how surreptitiously and ambivalently, he automatic-

ally invokes his right to counsel. There surely will be some

situations where an accused’s failure to make any direct asser-

tion of the right to the police will belie an invocation of the

right.

A-42

United States Court of Appeals

3 hae First Circa P

No. 83-1791.

UNITED STATES,

APPELLEE,

Pau, C. PORTER,

APPELLANT.

Ocr. 31, 1985.

Defendants were convicted in the United States District

Court for the District of Massachusetts, John J. McNaught, J.,

of conspiracy to possess with intent to distribute marijuana,

and the Court of Appeals, 764 F.2d 1, affirmed in part,

vacated in part, and remanded. On petition for rehearing, the

Court of Appeals held that whe accused’s words and actions

are ambiguous as to whether ie wishes a lawyer, questioning

officers must find out more specifically whether he wants

lawyer before they can proceed further with other question-

ing.

Petition denied.

Before,

CampsBeELL, Chief Judge,

Corrin, Bowness, Breyer, Torrve.ia, Circuit Judges, and

Perez-Gimenez,* District Judge.

Prior report: 764 F.2d 1.

* Of the District of Puerto Rico, sitting by designation.

A-43

ORDER OF COURT

We do not consider this opinion to announce a per se rule.

Rather, we need only say, as several other circuits have said,

that where the accused’s words and actions are ambiguous as

to whether he wishes a lawyer (at least as ambiguous as in the

present case), the questioning officers must find out more

specifically whether he wants a lawyer before they can pro-

ceed further with other questioning. On the record before us,

we deem the questioning impermissible even under a standard

that restricts further questioning to clarify an ambiguous

request for counsel. See, e.g., United States v. Cherry, 733

F.2d 1124, 1130-31 (5th Cir. 1984) (citing Thompson v. Wain-

wright, 601 F.2d 768, 772 (5th Cir. 1979) and Nash v. Estelle,

597 F.2d 513, 517 (5th Cir. 1979) (en banc); United States v.

Riggs, 537 F.2d 1219, 1222 (4th Cir. 1976); United States v.

Prestigiacomo, 504 F.Supp. 681, 683 (E.D.N.Y. 1981); United

States v. Grullon, 496 F.Supp. 991, 997 (E.D.Pa. 1979).

This order in no way changes Chief Judge Campbell's con-

curring Dubitante.

The petition for rehearing and the suggestion for rehearing

en banc are denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.