# Petition for Writ of Certiorari — Porter v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 1048

## Text

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

G

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

(C) On remand, the Petitioner moved to dismiss on
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?

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Questions

TABLE OF CONTENTS

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

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14

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

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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.

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.

3

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.

4

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

5

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.

6

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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7

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);

8

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.

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9

... 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.

11

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.

12

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

13

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,
v.
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,

v

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.

I.

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,

D

Paut C. PORTER,
DEFENDANT, APPELLANT.

UNITED STATES,
APPELLEE,

2.

Wa ter G. BAKER,
DEFENDANT, APPELLANT.

UNITED STATES,
APPELLEE,

v.

FREDERICK L. HEARN,
DEFENDANT, APPELLANT.

UNITED STATES,
APPELLEE,

v.

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.

A-20

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.

© Special Agent John Fencer testified that, after Porter’s arrest, Porter
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,

v.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1862%3A1. Public record. Not legal advice.