Petition for Writ of Certiorari — Bloom v. United States

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4 - yA ob 9 TSitice Tr st U.S

AUG 20 1984

IN THE ALEXANDER lL. STEVAS

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

EDWARD J. BLOOM,

Petitioner,

UNITED STATES OF AMERICA,

ON WRIT OF CERTIORARI

TO THE FIFTH CIRCUIT

COURT OF APPEALS

PETITION FOR WR7™T OF CERTIORARI

Edward J. Bloom,

Pro Se

2611 Linden Way # C

Palm Springs, Ca

92264

619-329-8334

619-324-9104

QUESTIONS PRESENTED

1. Whether petitioner's Fifth &

Sixth Amendment rights were violated

because, after demand, he was denied

complete grand jury transcripts of wit-

nesses but instead was given excised

copies ommitting testimony germane to

the case against petitioner.

2. Whether petitioner's Fifth

Amendment rights were violated by his

waiver of jury trial, which waiver was

induced by representations made by the

prosecution and the trial court that

petitioner had been furnished with all

relevant grand jury transcripts, which

representations were erroneous.

3. Whether the denial to petitioner

of access to record on eines to the

Fifth Circuit Court of Appeals of co-

defendant (who was tried separately)

to be used in aid of petitioner's appeal

to the Fifth Circuit Court of Appeals

denied petitioner due process, equal pro-

tection and a fair hearing on appeal.

4. Whether the trial court's rulings

and the admission of hearsay evidence re-

lating to petitioner's good faith defense

under the Classified Informations Pro-

cedures Act violated petitioner's Fifth

and Sixth Amendment rights.

TABLE OF CONTENTS

Page

Opinion Below 1, &

App.A-2

Jurisdiction 2

Statement 2

Reasons for Granting the Petition

I Petitioner was denied a

fair trial because redacted

copies of grand jury trans-

Cripts denied him his Fifth

and Sixth Amendment Rights

II Erroneous representations of

trial court and prosecution

that petitioner had been

supplied all relevant grand

jury testimony (when he had

not been so supplied) vitiatea

petitioner's waiver of jury trial

iii

Iitl

Page

Denial to petitioner

of access to part of record

on appeal to aid petitioner's

appeal to the Circuit Court

deprived petitioner of due

process, equal protection

of the law and a fair

hearing on appeal

The trial court's rulings

on evidence under the

Classified Information

Procedures Act and its

refusal to require the

Government to produce

Witnesses thereunder

violated petitioner's

Fifth and Sixth Amend-

ment Rights

Appendix

Page

Constitutional and

Statutory Provisions

Involved

Court of Appeal Opinion

Judgment and Committment

of Trial Court

Order of Fifth Circuit

Court of Appeals

Denying Petition for

Re-hearing

Petitioner's letter

to Judge Sterling

Comments on and some

Testimony excised

from copies of Grand

Jury Transcripts

furnished to petitioner

Affidavit of D. Jerry

Rubino

Comments on lack of

probative value of

Brower's testimony

iv-a

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

Page

FIFTH AMENDMENT 32

SIXTH AMENDMENT 32

STATUTES

18 USC Secs. 2 and 1001 4

22 uSC Sec. 2778 (c) 4, 47, 49,

22 C.F.R. Secs. 101.01 (category 5) 4

49 uSC Sec. 1809 (b) 61

49 C.F.R. Secs. 172, 100, 172, 101, 4

121.11 and 123.01

Classified Information Procedures 21,5

Act (Pub. L. 96-456, 94 Stat. 2025

FEDERAL RULES

Fed. R. Civ. P- Section 23 (a) 35

Fed. R. Civ. P- 7 27 59

Fed. R. Civ. P. ” 44 59

Fed. P. Civ. P. ' 47 59

Fed. Re Crim. P. _ 52(b) 59

TABLE OF AUTHORITIES

continued

Page

FEDERAL RULES

Fed. R. Evid. Section 902 58

Fed. R. Evid. 902 58

Fed. R. Evid. ” 803(10) 52

Adams v. United States, ex. Rel. 39-40

Mc Cann, 317 U.S. 269, 275,

(1942)

Adams v. United States ex. Rel. 39-40

Mc Cann, 317 U.S. 279 (1942)

Brady v. Maryland, 373 U.S. 83, 30-33

87-88 (1963)

Brenkerhoff & Fairs .«. v. Hill 30-35

281 U.S. 673, 681

Cole v. Arkansas, 33 U.S. 196 53

Cury V. Secretary of the Army,

595, F. 2d. 873, 876 60

(C.A., D.C., 1979)

Davis v. Alaska, 415 U.S. 308 58

(1974)

Dennis v. United States, 38 U.S. 31

855, 873-874 (1966)

Douglas v. Alabama, 380 U.S. 415 58

(1965)

Estes v. Texas, 381 U.S. 532, 544, 44

542-43 (1965)

Faretta v. California, 422 U.S. 29

806, 839 (1974)

Griffin v. Illinois, 351 U.S. 12, 53

16-17

Groppe v. Leslie, 404 U.S. 496, 500

In re Murchison, 349 U.S. 133 (1955)

vil

CASES

Page

Jencks v. United States, 353 U.S. 29

657, 671 (1957)

Johnson v. Zerbst, 304 U.S. 458 39,

(1938) 40

Lassiter v. Dept. of Social Services

452 U.S. 18, 24 30

Morissetti v. United States, 62

480 F. 2d. 764, 785 Cert.

Denied 414 U.S. 866 (1973)

Murchison, In re, 349 U.S. 43

133, 136 (1955)

Ohio v. Roberts, 448 U.S. 56 58

(1980)

Pointer v. Texas, 380 U.S. 58

400 (1965)

Pollard v. United States, 352 3

U.S. 254 (1957)

Schneckloth v. Bustamonte, 40

412, U.S. 218, 237 (1972)

Tunney V. Ohio, 273 U.S. 43

910, 532 (1927)

United States v. Erlichman, 48

546, F. 2d. 910, Cert. Denied,

429 U.S. 1120

United States v. Hernandez, 49

662 F. 2d. 289 (CCA 5)

viii

CASES

Page

United States v. Lee, 589 63

F. 2d. 980 (9th Cir. 1979),

Cert. Denied 444 U.S. 969

(1979)

United States v. Lizarraga - 48

Lizarraga, 541 F. 2d. 826,

828 (CCA 9, 1976)

United States v. Reich, 580 59

F. 2d. 929, 938 (CCA 9),

Cert. Denied, 439 U.S. 933

United States v. Miller, 658 62

FP. 20. 235, 237 (CCA. 4, 3981)

United States v. Reich, 580 59

F. 2d. 929 (CCA 9)

United States v. Reynolds, 29

sae Uh. 4, ie

United States v. Segna, 555 F. 2d. 59

226 (9th Cir. 1977)

Wilson v. City of Oklahoma, 53

395 U.S. 458, 459

Winship, In re, 397 U.S. 62

358 (1970)

Zerbst, Johnson v., 304 U.S. 458 39

TEXTS

Wigmore, Evidence, 3rd. Ed. 1940 30,

Sec. 1367 31

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

NO.

EDWARD JOHN BLOOM,

Petitioner

THE UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

EDWARD JOHN BLOOM PETITIONS FOR A

WRIT OF CERTORIARI TO REVIEW THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

OPINION BELOW

The Opinion of the Court of Appeals

(App. A iafra) is referred to in United

States v. Bloom, 732 F. 2d. 939 under

the Caption of "Decisions without

published opinions". The judgment and

committment of this trial court was

entered June 15, 1983. (App. A-2).

JURISDICTION

The judgment of the Court of Appeals

(App. A., infra) was entered on April 19,

1983. A petition for rehearing was denied

on May 21, 1984. (App. B, infra) On July

5, 1984, the Honorable Justice White ex-

tended the time within which to file a

petition for a Writ of Certiorori to and

including August 19, 1984. The jurisdic-

tion of this Court is invoked under 28

U.S.C. 1254 (1).

STATEMENT

Petitioner, Edwin Wilson and Donald

Thresher were indicted in the United States

District Court, Southern District of Texas,

for conspiracy to make an illegal shipment

of C-4 explosive from Houston, Texas, to

Libya in October 1977. Thresher pleaded

guilty to a misdemeanor charge. Petition-

er and Wilson were joint defendants until

the date set for trial, at which time they

were severed. The trial of Wilson pro-

ceeded pefore a jury, which convicted

him. Thereafter petitioner was tried by

the Court without a jury, and petitioner

was found guilty. The judgment of com-

mittment appears on Appendix A-2.

Petitioner was sentenced to impri-

sonment for two years which was suspended

and petitioner was placed on supervised

probation for 5 years on conditions, one

of which was that petitioner spend not

more than 120 days in a half-way house.

Petitioner has perfermed this condition.

Although petitioner has served this sen-

tence, it has been held that the possi-

bility of consequences collateral to im-

position of sentence may be of sufficient

importance to justify the Supreme Court

in dealing with the merits of the matter

(Pollard v. United States, 352 U.S. 354,

357, i937).

The indictment contains four counts.

Count one charges the conspiracy, 18 U.S.C.

371. Count two charges the presentation

of a falsified shipper's Export Declara-

tion which listed the explosives as drill-

ing mud, 18 U.S.C. Secs. 2 and 1001.

Count three charges the export of C-4

without obtaining the required licenses

from the State Department in violation of

22 U.S. Sec. 2778 (c), 18 U.S.C. Sec. 2,

and Title 22 C.F.R. Sections 121.01

(Category 5) 121.11 and 123.01. Count

four chartes the illegal transportation of

hazardous material by cargo aircraft, in

violation of 49 U.S.C. Sec. 1809(b), 18

U.S.C. Sec. 2 and 49 C.F.R. Secs. 172,

100, 172 101. C-4 is sometimes referred

to by the name of its principal compon-

ent (RDX) and by its full name, Cyclo

trimethylene.

Petitioner is a lawyer, 76 years of

age. He is married and has two daughters.

Petitioner went to Gonzaga University,

University of Washington School of Mining

and Engineering and also attended Prince-

ton University. He served 39 months over-

seas as a Naval Officer in the Second

World War. Prior to the occurrences

charged in the Indictment, Petitioner had

been admitted to practise law in the

States cf Idaho, Washington and California

and had never been disciplined by the Bar

in any of these States.

Jerome S. Brower, Edwin H. Frazier

and Reginald Slocombe were named in the

Indictment as "Undicted Co-Conspirators".

Brower pleaded guilty in the United

States District Court for the District of

Columbia, Case No. 80-200 to conspiracy

to violate the Munitions Control Act, 18

U.S.C. 844 (d) and Treasury Regulations,

49 U.S.C. 1809 (b) CTR 172. One of the

Counts against Brower in the case was for

perjury before the grand jury, which per-

jury is hereafter mentioned. Slocombe

and Frazier also pleaded guilty to charges

related to export of explosives to Lybia.

Brower, Frazier and Slocombe each agreed

with the Government to testify truthfully,

if called upon to do so.

The principal Government witness

against Petitioner was Brower. Petition-

er's involvement with Brower follows:

Petitioner testified that he was

attorney for Brower and his corporations

from about 1971 to 1982; that appellant

was paid a retainer of $ 100.00 per month;

that during this period, appellant spent

approximately 100 days on Brower's work,

and that he had limited social contacts

with Mr. Brower. Petitioner further

testified that this legal work consisted

mainly of making collections in the

United States and Europe, formation of

corporations, a limited amount of litiga-

tion, attending conferences or conven-

tions in the U.S. and Europe on subjects

of interest to Brower, and problems in-

volving leases on real property.

Petitioner never had daily, weekly or

monthly briefings of Brower's business

activities and only did a specific job

for Brower when he requested it. Also,

Petitioner, as attorney, took Brower to

the Grand Jury in Washington, D.C., when

it was, unknown to appellant, investigat-

ing shipment of explosives to Libya.

Brower told Bloom that he "didn't have

the slightest idea what the thing was all

about". Bloom advised him to come clean

- to tell the truth or keep his mouth shut.

Brower testified that he had sold

explosives to the Libyans in 1976. This

transaction did not involve Petitioner and

Brower testified that he did not think

Bloom had any knowledge of such 1976

transactions. Additionally, Brower testi-

fied that he had been in the business of

manufacturing, buying, selling, and ship-

ping explosives all over the world. In

addition to selling explosives, Brower

sold other chemicals as indicated by pages

from his business catalogue introduced as

defendant's Exhibits 27 and 30.

In the spring of 1977, Wilson intro-

duced Brower, the President of an explo-

sives company in Pomona, California,

(which company had an explosives magazine

at Fontana, California) to a group of

Libyans who were interested in purchasing

some C-4 explosives. At this meeting,

held in Washington, D.C., Brower spoke

to a Libyan called Algaidy (or Al Guydi).

A contract was entered into for the

Sale of C-4 by Brower's company, Explo-

Sives International Engineering Contrac-

tors, to Mepreco. Brower received $588,

000 for the sale ef the explosives by

payment made to an account of Brower's

in a Switzerland Bank.

In order to fulfill the order for

C-4, Brower, who had a small amount of

it in his inventory, made purchases from

three sources (Canadian Industries Limi-

ted (C.I.L.) in Canada, Technial Explo-

sives and Goex in the United States).

Petitioner, at Brower's request and

with cash money provided by Brower, paid

for some of the C-4 purchased by Brower.

Petitioner did not know at the time

of these payments that the C-4 would ul-

timately be shipped over seas.

These purchases of C-4 were, as Pet-

itioner knew, each and all perfectly le-

gal for Brower had a numbered license

from the United States allowing importa-

tion, exportation, manufacture, purchase,

and sale of explosives. These payments

have nothing to do with conspiracy to

make a forbidden export shipment unless

the government couples them with evidence

of petitioner's specific intent to viola-

te the law, which it did not do.

Brower admitted that it was his idea

as to where the C-4 would be purchased;

that he made all arrangements for the pur-

chase and payment by this corporation,

J. S. Brower & Associates; that he arrang-

ed for and paid for the explosives to be

brought to his place in California and

10.

from there to Houston.

After the purchased C-4 arrived at

Brower's magazine in California, Brower

and his men put the C-4, which arrived in

plastic lined fiberboard boxes, in cans

with a "drilling mud overlay" over the

C-4 in each can to mask or cover the ex-

plosive, and then sealed the can.

Brower requested Bloom to prepare a

draft Invoice for export of chemicals

sold by his company. Brower admitted giv-

ing Bloom all of the terms and details on

this invoice including description of the

goods as chemicals, price and quantity

etc. It never entered petitioner's mind

that this invoice had anything to do with

C-4 or export of it.

Thereafter Brower prepared an invoice

from the draft made by petitioner changing

the description of goods sold to C-4.

ll.

The seller was Explosives Engineering,

Brower's Lichtenstein Corporation, and

the buyer was Consultant's International.

Brower took the Invoice to Libya. Bloom

never saw the invoice prepared by Brower

which invoice in the main was copied from

the draft, except it substituted "drilling

mud" for "chemicals" according to Browers

testimony. No testimony exists that pe-

titioner ever saw or knew of the invoice

prepared by Brower.

Finally, Brower had the C-4 in his

magazine packaged in cans and labeled as

stated above and it was time to ship same

to Houston. Brower told Bloom that he

thought he could save some money if he

could locate a Texas trucker in California

going back to Texas. Bloom asked a client

of his knowledgeable in trucking and he

referred Bloom to a truck stop. Bloom went

12.

there and located a Texas gypsy trucker

and told him that an outfit wants some

cargo taken to Houston, gave him Browers

card and asked him to call Brower. That

was Bloom's only connection with the ship-

ment to Houston.

Brower had a label made to put on the

cans. He discussed it with petitioner who

suggested that he put "“explosives" on it

and Brower testified "I was not going to

do that in any way, shape or form". How-

ever. he did not tell petitioner he was

not putting the word "explosives" on the

labels but told petitioner that he would

have the printer overlay the already print-

ed labels with correct description. Pet-

itioner assumed that Brower had re-run

the labels to insert “explosives".

Brower designed the labels and it was his

idea to put drilling mud on the labels;

he testified that he knew that if the

label said "drilling mud", the 1iklihood

is that the (export) declaration would

show drilling mud. Brower selected Hous-

ton as the port from which to ship the

C-4 to Libya.

Unknown to petitioner, Brower got a

phone call from a person Brower subsequent-

ly said was Wilson's man saying Wilson had

not provided the money for hiring an air-

plane to transport the C-4 to Libya and

Brower replied that he would see what he

could do. Brower personally advanced

$ 82,000 as a loan to Wilson to pay for

the airplane, which loan was repaid by

Wilson.

On or about Sept. 29, 1977, Brower

handed Bloom about $ 79,000 in cash and

told him to take the money to Houston and

see that it paid for the airplane shipment

14.

to Libya, ride the plane from Houston to

Lisbon and that Brower would jcin the

plane in Lisbon where Bloom would get off

and Brower would ride the plane from Lis-

bon to Libya. Brower said that all docu-

ments were in order.

Petitioner testified that at the

time Brower gave him the money to take

to Houston petitioner told Brower that he

could not ship explosives in an airplane.

Brower then gave petitioner a silver med-

allion or coin and said it was a National

Security Council operation and that the

medallion was a National Security identi-

fication piece; and if any official stopp--

ed petitioner, to show the medallion anc

the official would go away. From that

point on, petitioner believed the C-4

shipment was an operation of the National

Security Council or its agents and that it

i5.

was his patrotic duty to carry out Bro-

wer's instructions.

Up to the time that Brower gave pet-

itioner the medallion all of petitioner's

actions in connection with the purchases

and shipment of C-4 to Brower's plant and

the re-shipment to Houston on or about

Sept. 28, 1977, were legal and appellant

had no knowledte of what was going on.

At the time of the shipment of C-4

to Houston and then to Libya, petitioner

had Known Brower for 7 or 8 years during

which petitioner was attorney for Brower.

Petitioner thoroughly believed in Brower's

honesty and integrity and had no reason to

disbelieve Brower when he gave petitioner

the medallion and said it was a National

Security Council identification piece.

Petitioner testified that his opinion of

Brower was based upon Brower's history as

16.

a member of the American Institute of

Mining Engineers, member of Board of Dir-

ectors of Society of Explosive Engineers,

former commanding officer of Dugway Prov-

ing Grounds in Utah, former dedicated

officer of the United States Army, a man

active in promoting youth activites, co-

inventor of the fuel which sent the rocket

to the Moon and a marriage of long stabi-

lity. From his personal contacts with

Brower, petitioner firmly believed him to

be honest, truthful, devoted to his coun-

try, patriotic, trustworthy, and a man of

great integrity and petitioner thoroughly

relied upon and believed what Brower told

him.

When petitioner learned that explo-

Sives were being shipped to Libya, he told

Brower that he would have to get a State

Department permit and petitioner offered

to fly to Washington to get it.

Brower said it was not necessary and that

Wilson's people were taking care of that

and petitioner believed that the export

permit had been obtained.

Petitioner took the cash to Houston

where he was informed that it was necess-

ary to Miami to pay for the plane.

Petitioner, Thresher, Slocombe and Frazier

(all identified to petitioner as "Wilson's

people") flew to Miami and Thresher on

behalf of Shay Company (freight forward-

er) signed airplane lease agreement and

arranged for a flight crew and petitioner,

with Brower's money, made the necessary

payment for plane and crew. Petitioner,

Slocombe, Frazier, and Thresher returned

to Houston.

The plane arrived in Houston, was

loaded and ready to depart. Petitioner,

the Captain, Thresher and Slocombe were

18.

standing around and petitioner asked if

Customs Clearance had been obtained.

They said no, they were going after it

now and that petitioner should keep an

eye on the airplane. They returned and

petitioner asked if the papers are in

order and they replied yes. The crew and

petitioner got in the plane and it took

off for Libya. When petitioner boarded

the plane, he believed everything was in

order and perfectly legal.

The plane landed in Lisbon to re-fuel

and petitioner phoned Brower at a hotel

where he said he would be. Brower came

to the plane and Brower and petitioner

rode the plane to Libya. Upon landing

Brower disappeared. A Libyan drove

petitioner to an hotel and at dinner

in the hotel dining room petitioner, by

chance, met Wilson. This was the first

19.

petitioner had ever met Wilson. At

dinner they discussed no business of any

kind. The next morning, a Libyan drove

petitioner to Wilson's office. Petitioner

sat in the waiting room about 2 hours and

he could see Wilson and Brower talking in

another office. Finally Brower came out

and handed petitioner an airplane ticket

to Zurich. Petitioner then left Libya

and returned to the United States.

There is no evidence in the record

that petitioner was promised or expected

any money or any other consideration for

his aforesaid acts, which he performed at

Brewers request, except payment of his

retainer of $ 100 per month.

Brower testified: (1) that Bloom

did not know the C-4 shipment was dis-

guised as drilling mud; (2) that before

the shipment to Houston Brower told

20.

petitioner that Wilson or Consultants

International would obtain the export

permit; (3) that Brower's original obli-

gation was to ship the C-4 to Houston and

then Wilson's people would take over;

(4) that Bloom had no knowledge of what

was going on up to the time of the ship-

ment to Houston or a day or two prior to

the shipment to Houston; (5) that Brower

was not in the habit of telling petitioner

the detaiis of his business, but only

told petitioner what was necessary for him

to know to do a particular job and peti-

tioner did not need to know the origin of

a transaction; (6) Brower admitted that

he enforced the need to know principle

within his own organization; (7) petition-

er never had daily, weekly, or monthly

briefing of Browers activities; (8) that

there was no reason to tell Bloom that

21.

Brower was in a clandestine operation

before giving Bloom the money to pay for

the airplane; (9) that Bloom never met

Wilson before the plane arrived in Libya;

(10) that Bloom did not need to know that

the cans contained explosives before they

were loaded on the truck for shipment to

Texas; and (11) Bloom had no part in

Browers 1976 terriorists activities,

which are hereafter mentioned.

Browers passion for secrecy was sub-

stantiated by his employee of 25 years,

(Doug Smith) who testified that nobody

in the organization knew what Jerome

Brower was doing. Brower's wife (Peggy)

and son Paul testified that in 1977 they

had no knowledge of what Brower was do-

ing with either Wilson, Consultants In-

ternational or Libya.

22.

REASONS FOR GRANTING THE

PETITION

PETITIONER WAS DENIED A FAIR TRIAL

BECAUSE THE EXCISED COPIES OF GRAND

JURY TESTIMONY GIVEN TO PETITIONER

DELETED MANY, MANY PORTIONS MATERIAL

TO THE CHARGES AGAINST PETITIONER

IN VIOLATION OF HIS RIGHTS UNDER

THE SIXTH AMENDMENT TO CONFRONTA-

TION AND CROSS-EXAMINATION AND

VIOLATED HIS RIGHT UNDER THE FIFTH

AMENDMENT TO DUE PROCESS.

Petitioner had moved the Trial Court

for an order requiring the Government to

give petitioner copies of grand jury

transcripts of all witnesses to testify

against him at trial. Pursuant to this

23.

request the court ordered the Government

to give petitioner copies of al] such

grand jury transcripts before trial so

as to avoid delays in trial which would

result if the copies were withheld until

after each such witnesses testified for

the prosecution.

Pursuant to this order, the pro-

secution gave petitioner redacted copies

of the grand jury transcripts, which re-

dacted copies were approved by the trial

judge, who said:

"I have read as was necessary the

entire grand jury testimony of

witnesses who did appear here at

trial, and in which they testified

about matters that were not relevant

to the case here."

On November 22, 1982, when the trial

judge ordered the prosecution to furnish

the excised copies of grand jury trans-

Cripts to petitioner, he stated that the

24.

deleted portions had nothing to do

with "this case". He then stated: "If

there is anything that comes out during

the testimony where they go beyond that,

then certainly I will see that you (re-

ferring to defendants) get the other

testimony on the grand jury. If it is

material and if it comes out, you will

be given an opportunity to make use of

1c”.

In appearances before the grand jury

in Washington, D.C. ‘in 1979 and 1980 and

in Texas in 1982, witness Brower told

completely different stories as did his

employee Smith in appearances before the

grand jury in Washington, D.C. in 1979,

1980 and in Texas in 1982., Both of them

in their later appearances before the

grand jury, after making a deal with the

Government and agreeing to testify truth-

25.

fully, recanted much of their prior

testimony to the grand jury and testified

that the 1976 Brower shipment of C-4 to

Libya was used by them to teach the Liby-

ans how to make terriorists devices such

as letter bombs, lamps which would explode

when the cord was pulled, gift jars of

tea, which would explode when opened;

fire extinguishers which would explode

when taken off the wall; and brief cases

which would explode when a timing device

went off.

In their iatest appearances before

the grand jury Brower and Smith also

testified concerning teaching the Libyans

how to engineer violations of customs,

conspiracy, solicitation of murder and

other terrible endeavors and terrorists

Gevices.

26.

The grand jury testimony referred to

in the preceeding paragraph was deleted

from the redacted copies furnished to

petitioner.

Also deleted from the redacted copies

given to netitioner were matters pertain-

ing to the 1977 shipment of which peti-

tioner is charged with conspiracy and

other charges. For example, in the re-

dacted copy of Smith's testimony before

the grand jury there is omitted Smith's

question to Brower relating to the 1977

C-4 shipment involved in this case if the

purchasers had obtained the necessary

permits and Brower replied "They are

working on it right now". Whereas Brower

had represented to petitioner that such

permits had been obtained.

Brower's wife Peggy testified at

petitioner's trial that she had no know-

27.

ledge of Brower's activities with the

Libyans.

After his trial and conviction,

petitioner for the first time in aid of

his appeal saw the complete unredacted

grand jury transcripts of the witnesses.

When he compared his redacted copies with

the full and complete transcripts, it

appeared that the excised copies contained

hundreds of blank pages.

The deleted portions of the trans-

cripts not furnished petitioner contained

Superb material matters for cross-examin-

ing those witnesses and impeaching them.

If petitioner had known of the existence

of this testimony, deleted from his re-

dacted copies, he could have shown beyond

doubt on cross-—-examination that the

witnesses lied to the grand juries about

matters relevant to the case against

28.

ns ots Variance canoes aa) A a ah a

petitioner, and could have completely

destroyed their credibility.

In Jencks v. United States 353 U.S.

657 (1957) the court said at page 671

quoting from United States v. Reynolds,

345 U.S. 1 at page 12, that in criminal

cases:

" ',...the Government can invoke

its evidentiary privileges only

at the price of letting the de-

fendant go free. The rationale of

the criminal cases is that, since

the Government which prosecutes an

accused also has the duty to see

that justice is done, it is uncon-

scionable to allow it to undertake

prosecution and then invoke its

governmental privileges to deprive

the accused of anything that might

be material to his defense...' "

In Faretta v. California 422, U.S.

806 (1974) it is said at page 839:

",..the prosecution is more than an

ordinary litigant, and the trial

judge is not simply an automation

who insures that technical rules

are adhered to. Both are charged

with the duty of insuring that

justice, in the broadest sense of

that term, is achieved in every

29.

criminal trial."

(Citations omitted)

In Brady v. Maryland, 373 U.S. 83

(1963) this court said at pages 87-77:

"...we now hold that the suppression

by the prosecution of evidence fav-

orable to an accused upon request

violates due process where the ev-

idence is material either to guilt

or punishment, irrespective of the

of the good faith or bad faith of

the prosecution..."

The court has said that fairness of

procedure is due process in the primary

sense. (Brenkerhoff - Fairs Co. v. Hill

281 U.S. 673, 681 (1929); that the re-

quirements of due process cannot be as-

certained through mechanical application

of a formula (Groppe v. Leslie, 404 U.S.

496, 500 (1972); and that due process has

never been, and perhaps can never be,

precisely defined (Lassiter v. Dept. of

Social Services 452, U.S. 18, 24 (1980).

Since cross-examination is the great-

est legal engine ever invented for dis-

30.

covery of truth (Wigmore Sec. 1367 3rd

ed. 1940), suppression by the prosecution,

after demand, of material relevant for

cross-examination purposes eviscerates

such rights.

Since petitioner had no knowledge

of what was contained in the excised por-

tions of the grand jury transcripts, he

was not able to make a showing to the

trial court of "particularized need" for

such deleted portions.

As this court stated in Dennis v.

United States, 384 U.S. 855 (1966),

873-874:

"A conspiracy carries with it the

inevitable risk of wrongul attri-

bution of responsibility to one or

more of the multiple defendants

-.--Under these circumstances, it

is especially important that the

defense....shall have the assurance

that the doors that may lead to

truth are unlocked....For this

reason we cannot accept the view

of the Court of Appeals that is

31.

safe to assume' no inconsistencies

would have come to light if the

cand jury testimony had been ex-

amined. There is no justification

for relying upon Assumption' ".

(Citation and footnotes ommitted).

Suppression of the demanded material

denied petitioner his Fifth Amendment

rights to due process and a fair trial and

his Sixth Amendment rights to confronta-

tion and cross-examination because:

(1) ait is unconscionable to allow the

government "to undertake prosecution and

then invoke its governmental privileges

to deprive the accused of anything that

might be material to his defense" ‘tencke.

supra); (2) both the trial judge and the

prosecution "...are charged with the duty

of insuring that justice, in the broadest

sense of that term, is achieved in every

criminal trial (Faretta, supra); (3) sup-

pression of evidence which, if made avail-

able, would tend to exculpate the accused

32.

___ermnmenerewrememernin

violates due process (Brady, supra) and

(4) fairness of procedure is the essence

of due process (Brenkerhoff, supra).

A few illustrations of the testimony

of Brower, his wife Peggy, (who was also

his office manager) and of his employee

Smith appear on Appendix D infra together

with brief explanatory statements of the

testimony.

While the prosecution did not call

Peggy Brower and Smith as Witnesses,

petitioner was foreclosed by the redacted

transcripts from ascertaining many rele-

vant facts with which to cross-examine

Brower, Peggy Brower, Smith and other

prosecution witnesses.

33.

F =PRESENTATIONS OF THE PROSECUTION

\ND THE TRIAL COURT THAT PETITIONER

HAD BEEN FURNISHED ALL RELEVANT

GRAND JURY TRANSCRIPTS, WHICH

REPRESENTATIONS WERE ERRONEOUS,

INDUCED PETITIONER TO WAIVE JURY

AND THE WAIVER IS VITIATED BY THE

ERRONEOUS REPRESENTATION

Shorlty before his trial was to

commence, petitioner waived his right to

a jury trial. He did this in the belief

that the Court had ordered the Government,

and that it had complied, to furnish to

petitioner copies of all Grand Jury trans-

cripts of witnesses material to petition-

er's case. Petitioner received redacted

copies and the excised portions related

to atrocious terrorist activities on the

part of Brower and others so revolting

34.

and unhuman as to turn the stomach of the

normal person. The deleted portions in-

cluded many lies and changing of stories

by witnesses Brower, Smith and perhaps

others before different grand juries.

As stated above, the trial court had

read all of this wicked testimony and

approved deletion of it from the redacted

copies supplied to petitioner. The pro-

secution did not inform petitioner of the

existence of this deleted material or the

nature of same.

While petitioner's waiver of jury

trial complied on its face with Rules 23

(a) F.R.C.P., such waiver by petitioner

was made in ignorance of the existence

of the material delted from the grand

jury transcripts, which deleted material,

as stated above, offered many, many mat-

€rial opportunities for impeaching

35.

adverse witnesses, destroying their

credibility and pursuing truth. Such

impeaching testimony would have been

particularly effective before a jury.

It is inconceivable that a juror would

believe a word of the testimony of a

witness such as Brower, admitting on the

witness stand (as he had testified be-

for grand jury and the testimony with-

held from petitioner) the dreadful ter-

rorist activity which he participated in,

originated and orchestrated.

By way of illustration, one of

petitioner's defenses was a good faith

belief that the shipment of C-4 to Libya

was an operation of the National Security

Council. This belief, as petitioner tes-

tified, was based on a medallion (coin)

which Brower gave to petitioner at the

time Brower asked petitioner to go to

36.

Houston and pay for the ajrplane. At that

time Brower told Bloom that the medallion

was a National Security Identification

Piece and that if any Government official

got in the way to show him the medallion

and the official would go away. From that

point on petitioner believed that the C-4

shipment was a Government operation. In

his testimony at petitioner's trial

Brower denied telling petitioner that the

medallion was a National Security Identi-

fication Piece, and explained it as an

identification piece within his own or-

gQanization. This claim was ridiculous

as petitioner knew all of Brower's people.

Brower was the only witness, other

than petitioner, to testify concerning

the medallion. If petitioner had had the

material excised from the grand jury

transcripts available with which to cross-

37.

examine and impeach Brower, he would have

known that he could destroy completely

Brower's credibility before a jury and

petitioner would never have waived jury

trial.

Petitioner asserts that his waiver

of jury was predicatea upon his false

assumption that he had been furnished by

the Government with all relevant informa-

tion, which false assumption was induced

by the Government and by the trial court

in depriving petitioner of the deleted

portions of Grand Jury transcripts. The

Government withholding of the deleted

material vitiates petitioners waiver of

jury and resulted in the denial of a

fair trial in that the waiver forclosed

petitioner's opportunity to cross-examine |

the witnesses before a jury and to expose

their various lies and changing of stories

38.

under oath before different grand juries.

The trial court and the prosecutor

were charged with the duty to supply the

deleted grand jury testimony to petition-

er. They failed in that duty but in the

belief induced by them that they had per-

formed this duty petitioner waived jury.

Petitioner's waiver is nullified by non-

performance of this duty.

In a case involving waiver of counsel

by a defendant in a criminal case, this

court said in Johnson v. Zerbst, 304 U.S.

458 (1938) at page 464:

"It has been pointed out that

‘courts indulge every reasonable

presumption against waiver' of

fundamental constitutional rights

and that we ‘do not presume

acquiescence in the loss of fund-

amental rights'.

A waiver is ordinarily and inten-

tional relinquishment or abandonment

of a known right or privilege."

And Adams v. United States ex rel.

39.

McCann, supra, at p. 278 the court said

thet whether there has been a competent

waiver of jury trial must depend upon

‘“he unique circumstances surrounding

each case".

In Schneckloth v. Bustamonte, 412 U.S.

218 (1972), the court referred to Johnson

v. Zerbst, 304U.S.458, and said at page 237:

"the court has applied the Johnson

criteria to assess the effectiveness

of a waiver of other tiral rights

such as...a jury trial..." etc.

(Footnotes ommitted).

As stated in Adams, supra, at page 279:

He may waive his constitutional

right...if he knows what he is

doing and his choice is made with

his eyes open." (Citation ommitted).

Another factor also vitiates peti-

tioner's waiver of jury. The court read

testimony of Brower and Smith in the por-

tions of their testimony not supplied to

petitioner which reading would create 4

feeling of utmost disgust and loathing

against the persons involved, i.e. Brower.

40.

In as much as petitioner had been associ-

ated with Brower, but had no knowledge of

these frightful activities, he would

never waive jury and consent to trial be-

fore a judge who had read same if peti-

tioner had known of the existence of the

facts contained in the excisims withheld

from petitioner. If petitioner had known

that this material existed he would have,

besides savoring it for cross-examination

before a jury, never consent to a trial

before a se, jury) who had

read this shocking testimony. In such

event, if petitioner knew of the existence

of this material and that the judge had

read it, petitioner would assume that the

judge would be very prejudiced against

Brower and anyone connected with him.

Although petitioner regards the trial

judge as an excellent judge and a fine

41.

gentlemen, petitioner cannot imagine any

judge or person reading these terrible

testimony (concealed from petitioner)

without forming prejudices.

Much of the material excised from the

copies of grand jury testimony furnished

to petitioner but read by the trial judge

could easily lead that judge to assume

that petitioner was in a conspiracy with

Brower.

42.

POSSIBILITY OF UNFAIRNESS

IS A DENIAL OF DUE PROCESS

As stated in In re Murchison, 349

133 (1955) at page 136:

"A fair trial in a fair tribunal

is a basic requirement of due pro-

cess. Fairness of course requires

an absence of actual bias in the

trial of cases. But out system

of law has always endeavored to

prevent even the probabilitv of

unfairness." (Emphasis supplied).

In Tumey v. Ohio, 273 U.S. 510 (1927)

the court said at page 532:

"Every procedure which would offer

a possible temptation to the aver-

age man...to forget the burden of

proof required to convict the ce-

fendant, or which might lead him

not to hold the balance nice, clear

and true between the State andi the

accused, denies the latter due pro-

cess of law." (Emphasis supplied).

It is possible that the court's read-

ing of the villainous material and lies

in grand jury testimony denied to peti-

tioner (which material was unknown to

43.

petitioner at the time he waived jury

or during his trial) influenced the court

against petitioner or cause the court to

be prejudiced against him.

Therefore the possibility exists

that the court unconsciously could not

"hold the balance nice, clear and true

between" the Government and petitioner.

As the court said in Estes v. Texas,

381 U.S. 531 (1965) a case involving

television of a notorious criminal trial:

"...-e-One cannot put his finger

on ..ts specific mischief and prove

with particularity wherein he was

prejudiced...such untoward circum-

stances....are inherently bad and

prejudice will be presumed."

(381 U.S. 544)

When petitioner waived jury he knew

what he was doing in the sense that he

knew the relative advantages and dis-

44.

advantages of jury trial versus court

trial. But petitioner's eyes were closed

by the erroneous assertion of court and

prosecution that all relevant information

and grand jury transcripts had been furn-

ished him, when such had not. Such con-

cealment nullifies petitioner's waiver of

jury and deprived petitioner of a fair

trial and of due process under the Fifth

Amendment.

In short, petitioner's waiver of

jury was predicated upon the assumption

that the court and prosecution had supp-

lied him with all relevant information.

His assumption was induced by their non-

performance of that duty. The waiver was

further predicated on petitioner's erron-

eous belief induced by the prosecution

and the court that the court had an open

mind uncluttered and unprejudiced whereas

45.

in fact the court might possibly have been

prejudiced by reason of reading atrocious

material involving heinous activities and

lies in grand jury testimony denied to

petitioner.

Iil

PETITIONER WAS DENIED ACCESS TO

THE PART OF THE RECORD ON APPEAL

TO THE FIFTH CIRCUIT RELATING TO

CLASSIFIED MATERIAL INVOLVED IN

THE DEFENSE OF HIS CO-DEFENDANT

WILSON AND THIS DENIAL TO PETI-

TIONER TO ACCESS TO PART OF THE

RECORD ON APPEAL TO BE USED IN

AID OF HIS APPEAL DEPRIVED

PETITIONER OF DUE PROCESS,

EQUAL PROTECTION AND A FAIR

HEARING ON APPEAL

Petitioner and Edwin Wilson were

charged in the indictment with conspiracy

46.

to make an illegal shipment of C-4 to

Lybia. They were joint co-defendants

until the trial date when they were

severed.

One of Wilson's defenses was that

the C-4 shipment had been authorized by

the C.I.A. One of petitioner's defenses

was that the shipment was authorized by

the National Security Council.

The Munitions Control Act, Section

2778 of 22 U.S.C., provides in (b) (1)

that the regulations apply to "every per-

son (other than an officer or employee of

the United States Government Acting in an

official capacity". (Emphasis added).

Wilson's defense was that he was an

officer or employee of the CIA and acting

in that capacity at the time he was en-

gaged in the alleged conduct charged in

the Indictment against him and, therefore,

47.

in such capacity, he was not required to

be in compliance with Section 2778.

In its rulings against Wilson, the

trial court relied upon United States v.

Erlichman, 546 F. 2d. 910 (D.C. Cir. 976),

Cert. denied, 429 U.S. 1120 (1977). As

noted in the opinion at 546 F. 2d. 918,

the offense charged is violation of 18

U.S.C., Section 241, and it is a malum

in se offense. There is no defense of

“good faith belief" to Section 241. The

court said that the defendant raised only

mistake in law as a defense and held that

such is not a defense to violation of

Section 241 (546 F. 2d. at 918-919).

The Erlichman case is not in point

because good faith defense was not avail-

able to him (as it was to Wilson) and the

charges against Wilson (and Bloom) cannot

be supported without proof of specific

48.

intent to violate a "known legal duty".

Wilson and Bloom were charged with

wilfully engaging in a conspiracy to

violate 22 U.S.C., Sections 2778(c) and

49 U.S.C., Section 1804. Violations of

these two sections require that the de-

fendant engage in conduct "willfully"

with the specific intent to violate the

statute.

The defendant must have acted "will-

fully" and have engaged in conduct "know-

ing it was unlawful".

United States v. Hernandez, 622 F.ed.

289 (5th Cir. 1981).

United States v. Lizarraga - Lizarra-

ga, 541 F. 2d. 826 (9th Cir. 1976).

The trial court made rulings while

Wilson and petitioner were joint defend-

ants and thereafter during Wilson's sep-

arate trial denying Wilson the opportunity

49.

of proving his good faith defense that a

government operation was involved. If

Wilson had been permitted to establish

his good faith defense of an operation

authorized or sponsored by United States

officials, it would have been a good de-

fense to him and to petitioner.

In his Brief to the Fifth Circuit,

Wilson filed a regular non-classified

Brief and a Classified Brief. His non-

classified Brief stated that the following

issues were raised in the classified Brief.

Whether the trial court committed

error: (1) in denying Wilson his right

to present classified information which

was relevant to his defense and to the

issue of intent, in (2) quashing Wilson's

subpoenas to government officials and

denying him compulsory process, confronta-

tion and cross-examination, in (3)

50.

not complying with the specific require-

ments of CIPA; (4) in not ruling that CIPA

is constitutional on its face and as app-

lied because it is void for vagueness, it

violates the privilege against self incrim-

ination, it violates the confrontation law

of the Sixth Amendment and it permits uni-

lateral appeal by the government; in (5)

not ruling that Brady V. Maryland was vio-

lated by the governments' failure to pro-

duce evidence which was exculpatory to

Wilson.

After petitioners conviction and

after he had filed Notice of Appeal to

the Fifth Circuit, he moved the trial

court for an order permitting him to see

all classified material in the court's

file. The judge took the view that, as

the appeal was pending, jurisdiction lay

in the Fifth Circuit Court of Appeals.

51.

The. cupon petitioner made application to

the Fifth Circuit to permit him to see the

classified material in the file, which

application was denied.

Thereafter petitioner filed on the

Fifth Circuit Court a "Motion for Rehear-

ing after denial of Motion to grant access

to classified record and for oral argument

on Motion".

Petitioner sought to see the classi-

fied material in aid of his Appeal and in

the preparation of his Brief to the Fifth

Circuit Court of Appeals and denying peti-

tioner the right to see the classified

material denied petitioner his rights to

due process, equal protection and to a

fair hearing on appeal.

To deny an appellant in a criminal

52.

case access to the record on appeal is a

denial of his constitutional rights to

due process and equal protection of the

law. Griffin v. Illinois, 351 U.S. 12, 1

16-17 (1955). Proceedings in the appel-

late court, as well as these in the trial

court, must be considered in determining

whether due process of law has been af-

forded or denied. Cole v. Arkansas, 333

U.S. 1948. Wilson v. City of Oklahoma,

395 U.S. 458, 459 (1969).

33.

THE TRIAL COURTS RULINGS AND

THE ADMISSION OF HEARSAY EVIDENCE

IN THE FORM OF AFFIDAVIT OF

D. JERRY RUBINO RELATING TO

PETITIONER'S GOOD FAITH DEFENSE

UNDER THE CLASSIFIED INFORMATION

PROCEDURE ACT VIOLATED APPELLANT'S

SIXTH AMENDMENT RIGHT OF CONFRON-

TATION, CROSS-EXAMINATION, AND

COMPULSORY PROCESS AND FIFTH

AMENDMENT RIGHTS TO DUE PROCESS

AND A FAIR TRIAL

Petitioner believed he was carrying

out a National Security Council Directive

after being supplied by his client,

Brower, with a medallion alleged by Brower

to be a National Security Identification

Piece. In consequences of this belief and

of the possession of this piece, petitioner

54.

after advising Brower that Class A ex-

plosives could not be shipped by cargo

aircraft, and having been further informed

by Brower that Wilson hed obtained the re-

quired State Department Export License,

accepted currency from Brower to be del-

ivered to people represented by Brower to

be Wilson's agents in Houston.

Petitioner, in accordance with the

Classified Information Procedures Act

(Pub. L. 96-456, 94 Stat. 2025, 1980)

handed to Judge Sterling a sealed letter

Gated October 18, 1982, A copy of this

letter is attached so laments C. In

accordance with the Act, petitioner also

filed Notice of Intention to disclose

classified information. A copy of the

Classified Procedures Act is attached as

Appendix l.

This motion was set for hearing at

35.

a ai

which time the Government produced an

affidavit of D. Jerry Rubino, a copy ot

which is attached as Appendix G. This

affidavit states that the medallion was

shewn by the Chief of Security of the

Department of Justice to named officials

of U.S. Customs Service, the Bureau of

Alcohol, Tobacco, and Firearms and to

unnamed officials of the Central Intelli-

gence Agency. (See paragraphs 5 and 6 of

the affidavit). No where in the affidavit

does it state that the medallion was shown

to, or discussed with, the National Sec-

urity Council and Brower had represented

to petitioner that the medallion was an

identification piece of that agency.

Based upon this showing, Mr. Rubino's

affidavit (which is hearsay as he did not

personally talk to the above named agen-

cies) states: "I have conducted an anal-

ysis...and I have concluded that the in-

formation and coin presented to the court

by the defendant are not now or have ever

been classified National Security Informa-

tion material..."

Brower never said anything about the

medallion being associated with Customs,

ATF or the CIA; therefore, the affidavit

is not relevant to anything except infer-

entialy to indicate that the medallion

(coin) was not submitted to the National

Security Council, but the court received

it and ruled that the coin was not class-

ified and the affidavit was admitted into

evidence along with appellant's version

of its acquisition from Brower.

The trial court concluded that the

Rubino affidavit destroyed petitioner's

good faith National Security Council de-

fense.

Appellant was denied the opportunity

of impeaching Mr. Rubino through cross-

examination, resulting in a denial of |

appellant's Sixth Amendment Right to be

confronted by the witness against him.

Davis v. Alaska, 415 U.S. 308 (1974);

Douglas v. Alabama 380 U.S. 415 (1965);

Pointer v. Texas 380 U.S. 400 (1965).

Since National Security Council

officers were available, the prosecution

was required to produce them at trial in

order to conform with the confrontation

clause - Ohio v. Roberts, 488 U.S.56(1980).

The hearsay exception for evidence of

the absence of, information in public re-

cords, embodied in Federal Rules of Evi-

dence, Rule 803(10), expressly provides

a foundation requirement. The necessary

pre-requisite is a certificaté in compli-

ance with Fed. R. Evid. 902-

58.

United States v. Reich, 580 F. 2d.

929, 938 (9th Cir. 1978), Cert. Denied.

439 U.S. 933 (1978).

The affidavit lacked any indica of

reliability and did not comply with Fed.

R. Civ. P. 27, 44 (b) and lacked authen-

tication under Rule 44 (a) (1).

The Government's failure to lay a

proper foundation as required by law,

together with the unreliability of the

Rubino affidavit, amounts to plain error

under Rule 52 (b), Fed. R. Crim. P. re-

guiring a reversal "to prevent a mis-

carriage of justice". United States v.

Sees eos ©. 20, 220 (9th Cir. 1977).

The affidavit contained no statement as

to the affiant's personal knowledge of

the records or concerning the custody of

them, was procedurally defective under

Fed. R. Civ. P. 47 and 44, Fed. R. Evid.

902, and was in violation of petitioner's

Fifth and Sixth Amendment Rights.

Prejudice is presumed from violation

constitutional rights. Estes v. Texas

381 U.S. 532, 542-43 (1964). Curry v.

Secretary of the Army, 595 F. 2d. 873

(CG. A. D.C., 8979)»

At a minimum, the Government should

have filed an affidavit from a qualified

affiant or produced a competent witness

to testify whether or not the records of

the National Security Council reveal any-

thing about the medallion and testimony

that the shipment of C-4 to Libya was or

was not authorized by that Council or its

representative.

The Government should have the burden

of proving that material is not classified

(when assertion is made that it is) since

the Government alone is in possession of

60.

all competent evidence relative to the

inquiry.

Appellant was charged with willfully

engaging in a conspiracy to violate 22

U.S.C. Section 2778 (c) and 49 U.S.C., Sec.

1809(b) and knowingly transporting explo-

sives in foreign commerce without a licen-

se. Violation of these sections require

that the defendant engage in the conduct

"willfully" and that the defendant commit

the offense with the specific intent to

violate the statute.

Congress did not intend to punish

innocent or negligent errors, but rather

intended to punish only intentional, vol-

untary violations of a known duty.

United States v. Hernandez, supra,

and United States v. Lizarraga - Lizarraga,

supra.

Thus, if the defendant comes forward

with some evidence, such as good faith,

mistake, etc., that tends to negate the

element of willfullness, the Government,

in order to prevail, must show that the

defendant had no good basis for believing

that his conduct was lawful. United States

v. Davis, £83 F. 24. 190 {Sth Cir. i976)

involving the Munitions Control Act.

Appellant believed in good faith that

his actions were lawful and that belief

constitutes a valid defense to a specific

intent crime. See, e.g. United States v.

Milier, 65€ F. 24. 235, 221 teem Gar:

1981) Morrissette v. United States, 489

F. 24. 764, 785, (2nd Cif. 2973), Gert.

denied, 414 U.S. 866 (1973).

The basis for the good faith defense

is simple in that the Government always

bears the burden of proving beyond a

reascnable coubt every essential element

62.

of an oftense charged in a criminal case.

In re Winship 397 U.S. 358 (1970).

Petitioner lacked the degree of know-

ledge in this case because he believed in

good faith that the transport of the ex-

plosives was authorized by the Government

Or its agents. If this belief was mis-

taken, petitioner's actions could not be

considered knowing and intentional. See

United States v. Lee, 589 F. 2d. 980

(9th Cir. 1979, Cert. denied 444 U.S. 969

(1979) ).

Petitioner testified that Brower

stated that the medallion was a National

Security piece.

Brower testified that the medallion

was for the purpose of people within his

Own organization identifying themselves.

Brower's testimony concerning the

medallion is intrinsically destitute of

63.

probative value as demonstrated on

Appendix H.

CONCLUS ION

The petition for certiorari should

be granted. V4

Respectfully submitted,

nhac 4 v/

7 ‘asa if =X 4

Vie NEG Wain

FDWARD JOHN BLOOM

STATE OF CALIFORNIA ) PROOF OF SERVICE

COUNTY OF RIVERSIDE )**py MAIL

I, the undersigned, say: I ama resident

of the County of Riverside; over the age

of eighteen years and not a party to the

within action or proceeding; that my add-

ress is 2611 Linden Way # C, Palm Springs,

California.

That on thel7 day of August, 1984, I

served the within paper PETITON FOR WRIT

OF CERTIORARI by depositing said copy en-

closed in a sealed envelope with postage

hereon fully prepaid, in the United States

Postal Service mail box at the City of

Palm Springs, California, addressed as

follows: Daniel K. Hedges Solicitor Gen.

United States Attorney of the U.S.

P.O. Box 61129 Dept. of Justice

Houston, Texas: 77208-1129 Wn, D.C.2

I declare under penalty of perjury that the

foregoing is true and correct,

Executed on August17 , 1984, at te an go

Springs, California 37? xt{

M. KNOTT

64.

APPENDIX 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United

States Constitution provides in relevant

part:

No person shall...be deprived

of life, liberty or property

without due process of law.

The Sixth Amendment to the United

States Constitution provides in relevant

part:

In all criminal prosecutions, the

accused shall enjoy the right to

a...-trial, by an impartial jury

~--; to be confronted with the

witnesses against him; to have

compulsory process for obtaining

witnesses in his favor..."

Appendix j Page 1

OFFICIAL BADGES, IDENTIFICATION

CARDS, OTHER INSIGNIA

Whoever manufactures, sells, or

possesses any badge, identification card,

or other insignia, of the design pres-

cribed by the head of any department or

agency of the United States for use by

any officer or employee thereof, or any

colorable imitation thereof, or photo-

graphs, prints, or in any other manner

makes or executes any engraving, photo-

graph, print, or impression in the like-

ness of any such badge, identification

card, or other insignia, or any colorable

imitation thereof, except as authorized

under regulations made pursuant to law,

Shall be fined not more than $ 250 or

imprisoned not more than six months, or

both.

June 25, 1948, c. 645, 62 Stat. 731.

Appendix 1, page 2

OFFICER OR EMPLOYEE

OF THE UNITED STATES

Whoever falsely assumes or pretends

to be an officer or employee acting under

the authority of the United States or any

department, agency, or officer thereof,

and acts as such, or in such pretended

character demands or obtains any money,

paper, document, or thing of value, shall

be fined not more than $ 1,000 or impri-

sened not more than three years, or both.

June 25, 1948, c. 645, 62 Stat. 742.

TITLE 18, UNITED STATES CODE

Par. 371, CONSPIRACY TO COMMIT

OFFENSE...

If two or more persons conspire...to

commit any offense against the United

States...ancd one cr more of such persons

do any act to effect the object of the

conspiracy, each shall be fined not more

Appendix 1, page 3

aaa

than five years, or both....

TITLE 18, UNITED STATES CODE

Par. 1001. STATEMENTS OR

ENTRIES GENERALLY

Whoever, in any matter within the

jurisdiction of any department or agency

of the United States knowingly and will-

fully...makes or uses any false writing

or document knowing the same to contain

any false, fictitious or fraudulent state-

ment or entry, shali be fined not more

than $ 10,000 or imprisoned not more than

five years, or both.

TITLE 18, UNITED STATES CODE

Par. 2. PRINCIPALS

(a) Whoever commits an offense against

the United States or aids, abets, counsels,

commands, induces or procures its commiss-

ion, is punishable as a principal.

Appendix 1, page 4

(b) Whoever willfully causes an act to

be Gor.e which if directly performed by

him or another would be an offense

against the United States, is punishable

as a principal.

TITLE 22, UNITED STATES

CODE, Par. 2778.

CONTROL OF “RMS EXPORTS

AND IMPORTS

(a) (1) In furtherance of world

peace and the security and foreign policy

of the United States, the President is

authorized to control the import and the

export of defense articles and defense

services and to provide foreign policy

guidance to persons of the United States

involved in the expert and import of such

articles and services. The President is

authorized to designate those items which

Shall be considered as defense articles

Appendix 1, page 5

and defense services for the purposes of

this section and to promulgate regulations

for the import and export of such articles

and services. The items so designated

shall constitute the United States Muni-

tions List.

(2) Decisions on issuing export

licenses under this section shall be

made in coordination with the Director

of the United States Arms Controi and

Disarmament Agency and shall take into

account the Director's opinion as to

whether the export of an article will

contribute to an arms race, increase

the possibility of outbreak or escala-

tion of conflict or prejudice the dev-

elopment of bilateral or multilateral

arms control arrangements.

(b) (1) As prescribed in regulations

issued under this section, every person

Appendix 1, page 6

ee ee

(other than an officer or employee of the

United States Government acting in an

official capacity) who engages in the

business of manufacturing, exporting,

or importing any defense articles or

defense services designated by the

President under subsection (a) (1)

of this section shall register with the

United States Government agency charged

with the administration of this section,

and shall pay a registration fee which

shall be prescribed by such regulations.

Such reguliatgons shall prohibit the re-

turn to the United States for sale in

the United States (other than for the

Armed Forces of the United States and

its allies or for any State or local law

enforcement agency) of any military fire-

arms or ammunition of United States manu-

facture furnished to foreign governments

Appendix 1, page 7

by the United States under this chapter

or any other foreign assistance or sales

program of the United States, whether or

not enhanced in value or improved in con-

Gition of a foreign country. This pro-

hibition shall not extend to similar fire-

arms that have been so substantially

transformed as to become, in effect,

articles of foreign manufacture.

(2) Except as otherwise specifi-

cally provided in regulations issued

under subsection (a) (1) of this section,

no defense articles or defense services

designated by the President under subsec-

tion (a) (1) of this section may be ex-

ported or imported without a license for

such export or import, issued in accordance

with this chapter and regulations issued

under this chapter, except that no license

shall be required for exports or imports

Appendix 1, page 8

A a a

made by or for an agency of the United

States Government (A) for official use

by a department or agency of the United

States Government, or (B) for carrying

out any foreign assistance or sales pro-

gram authorized by law and subject to

the control of the President by other

means.

(3) No license may be issued under

this chapter for the export of any major

defense equipment sold under a contract

in the amount of $ 25,000,000 or more to

any foreign country which is not a member

of the North Atlantic Treaty Organization

unless such major defense equipment was

sold uncer this chapter. The prohibition

contained in the first sentence of this

paragraph shall not ae ae the issuance

of licenses under this.section for the

export of major defense equipment to

Appendix 1, page 9

A ralia, Japan, or New Zealand, or

major fense equipment sold commercially

in implementation of an agreement between

the United States Government and the

vernment of a foreign country for the

production of the major defense equipment

to which such licenses relate if the

President has submitted a certificate

with respectto such proposed agreement

prior to its signature, to the Speaker of

the House of Representatives and to the

chairman of the Committee on Foreign

Relations of the Senate in the same

form as the certification required under

section 2776(b) of this title and subject

to the cui beanies of such section.

lates any provisions of this section or

section 2779 of this title, or any rule

or regulation issuec under either section,

Appendix 1, page 10

or who willfully, in a registration or

license application or required report,

makes any untrue statement of a material

fact or omits to state a material fact

required to be stated therein or necess-

ary to make the statements therein not mis-

leading, shall upon conviction be fined

not more than $ 100,000 or imprisoned not

more than two years, or both....

TITLE 22, CODE OF FEDERAL

REGULATIONS Par. 121.01

THE U.S. MUNITIONS LIST.

Pursuant to the authority cited

supra the following articles‘are hereby

designated as arms, ammunition, and

implements of war.

(Category V) Propellants, Explosives,

and Incendiary Agents

1. The term "article" shall mean any of

the arms, ammunition, and implements of

war and technical data relating thereto

enumerated in the U.S. Munitions List

(See Par. 123.38).

Appendix 1, page 11l

(>) Military explosives (see Par.

121.10) . (sic)

TITLE 22, CODE OF FEDERAL REGU-

LATIONS PAR. 121.11 MILITARY

EXPLOSIVES

The term "military explosives"

includes, but is not limited to, the

following:

(d) cyclotrimethylene-trinitram-

ine (RDX, CYCLONITE, HEXOGON or C4).

TITLE 22, CODE OF FEDERAL

REGULATIONS PAR. 123.01

EXPORT LICENSE.

Equipment (see Par. 121.02 of this

subchapter for definition) on the U.S.

Munitions List shall not be exported

from the United States until a license

has been obtained from the Department

of State, or it is otherwise exempt under

other provisions of this subchapter. As

Appendix 1, page 12

ben ee ee ee

a condition precedent for the issuance

of an export license for equipment the

Department of State may require all per-

tinent documentary information regarding

the proposed transaction, and may also

require the execution of an appropriate

bond. (Applications for export license

where the value is $ 50,000 or more shall

be accompanied by a copy of the relevant

DD form 1513 in cases involving the U.S.

Foreign Military Sales program, and by a

copy of a firm order or letter of intent

in other cases.)

TITLE 49, UNITED STATES CODE

PAR. 1809. PENALTIES

(b) A person is guilty of an offense

if he willfully violates a provision of

this chapter or a regulation issued under

this chapter. Upon conviction, such per-

son shall be subject, for each offense,

Appendix 1, page 13

to a fine of not more than $25,000,

imprisonment for a term not to exceed

5 years, or both.

TITLE 49, CODE OF FEDERAL REGULATIONS

PAR. 172.100 PURPOSE

AND USE OF THE TABLE.

(a) The table set forth in Par.

172.101 constitutes a designation of the

materials listed therein as hazardous

materials for purposes of the transporta-

tion of those materials in commerce. In

addition, it classifies and specifies

requirements and references other require-

ments set forth elsewhere in this sub-

chapter pertaining to the labeling,

packaging and transportation of those

materials

(g) Column 6 indicates the maximum

net quantity in one package for air trans-

Appendix 1, page 14

ie eset I ah era biscnnacs PIO

ABE AO PTS Be Ee! Cagis

portation or passenger railcar;

(2) Column 6 (b) lists the maximum

net quantity for one outside package on

cargo aircraft. Packaging must bear the

CARGO AIRCRAFT ONLY label when the quan-

tity of hazardous material exceeds that

authorized on passenger-carrying air-

craft, or is forbidden on passenger-

carrying aircraft.

The word forbidden appears in Column

6 under High Explosive which includes

cyclotrimethylene-trinitramine.

Appendix 1, page 15

United States Court of Ap~eals

FOR THE FiFtH CIRCUIT

CLERK, U.S. DISTRICT CouR?

SOUTHERN DISTRICT

No. 83-2363 FI oe

CR ;

D. C. Bechet tte.” hebd-198 JUN 7 1984:

JESSE E. CLARK. CLERK

UNITED STATES OF AMERICA, BY DEPUTY: “me . Cosson.

Plainciff-Appellee,

versus

EDWARD J. BLOOM,

Defendant-Appeliant.

Appeal from the United States District Court for the

Southern District of Texas

Before RANDALL, TATE and WILLIAMS, Circuit Judges.

JUDGNENT

This cause came on to be heard on the record on appeal

and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered and

adjudged by this Court that the judgment of the said District

Court in this cause be, and the same is hereby, affirmed.

APRIL 19, 1984

ISSUED AS MANDATE: MAY 3.1 54 -

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APPENDIX A-2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DOCKET NO. H-82-139

UNITED STATES OF AMERICA

EDWARD JOHN BLOOM

(Filed June 15, 1983)

JUDGMENT AND COMMITMENT

In the presence of the attorney for the government the

defendant appeared in person on this date, June 14, 1983,

without counsel, pleading not guilty.

There being a verdict of guilty.

Defendant has been convicted as charged of Count 1:

Conspiracy to violate the Arms Export Control Act of 1976;

18 USC 371. Count 2: Fraudulent Statements; 18 USC

1001:2. Count 3: Violation of Munitions Control Act; 22

USC 2778(c). Count 4: Unlawfully transporting hazardous

materials in foreign commerce: 49 USC 1809(b).

The court asked whether defendant had anything to say

why judgmerit should not be pronounced. Because no suf-

ficient cause to the contrary was shown, or appeared to the

court, the court adjudged the defendant guilty as charged

and convicted and ordered that: The defendant is hereby

committed to the custody of the Attorney General or his

APPENDIX A-2

authorized representative for imprisonment for a period of

TWO (2) YEARS as to each Count 1, 2, 3 and 4, to run

concurrent to each other. Execution of sentence as to

Counts 1, 2, 3 and 4 is suspended and defendant is placed on

probation with supervision for five (5) years.

Special conditions are as follows:

1. Defendant is required to participate in a residential pro-

gram at acommunity treatment center for a period not to

exceed 120 days.

2. Defendent is not permitted to travel outside the conti-

nental United States.

It is ordered that the Clerk deliver a certified copy of this

judgment and commitment to the U.S. Marshal or other

qualified officer.

ly ROSS N. STERLING

U. S. District Judge

APPROVED AS TO FORM:

‘sy DEPUTY

DATED: June 15, 1983

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT U.S. COURT OF APPEALS

7 _ FILED

No. 83 2363 ee

MAY 2 1 1984

GI f

UNITED STATES OF AMERICA, ns ter ~ a

Plaintiff-Appellee,

versus

EDWARD J. BLOOM,

Defendant-Appellant,

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

{ May 21, 1984 )

Before RANDALL, TATE and WILLIAMS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

,i~n eee |

CLERK’S NOTE:

SEE FRAP AND LOCAL

ENTERED FOP ~ COURT: RULES 41 FOR STAY OF THE

MANDATE,

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To the Hon. Ross Sterling:

The enclosed is an alleged National

Security Identification piece handed to

me by Jerome S. Brower in September 1977

and alleged by him to have been given to

him by Defendant Edwin P. Wilson, to be

shown by me to any ATF or U.S. Customs

or other Federal official who might

attempt to interfere with the cargo air-

craft shipment from Houston to Libya be-

ing made by Mr. Wilsons agents. Brower

told me that upon production of this piece

the government agent would "go away".

I do not vouch for the truth of Mr.

Browers statements in any way in view of

his pleading guilty to felony in the related —

case of U.S. V. Wilson & Brower USDC

80-200 D.c. I need to introduce this

article in my good faith defense if it is

not genuine. (over)

If genuine (or classified) I do not

care to jeopordize the security of those

who may be authorized to carry it, and

will attempt my defense by merely calling

it an alleged National Security identifi-

cation piece without otherwise discribing

it. While allegedly given to Brower by

Wilson who was allegedly C.I.A. Brower

did not call it a C.I.A. identification

piece, but a "National Security identifi-

cation piece". I returned it to Brower

on my return from Libya and he gave it to

William Handley's his (and my) Washington

attorney, Mr. Handley gave it to me,

cautioning me of Browers impaired

credibility.

Very respectfully,

EDWARD JOHN BLOOM

Appendix C, page 2

APPENDIX D

COMMENTS ON AND SOME TESTIMONY

EXCISED FROM COPIES OF GRAND

JURY TRANSCRIPTS FURNISHED TO

PETITIONER

In Brower testimony before the grand

jury in Washington, D.C. on August 23,

1979, in the portions of the transcript

deleted from the copy given to petitioner

Brower testified:

(1) Interrupted the questioning

twice and stated that he wanted to talk

to his attorney (pages 35-45 and 66).

Petitioner was his attorney.

(2) Testified that he could not

remember the names of the people, about

4 in number, that he sent to Libya, ex-

cept that he sent his employee Smith to

Libya, but that on this job Smith was not

his employee but was employed by Wilson.

App. udix D, page 1

(Pages 36-37, 66-67); that he next saw

Wilson when he went to collect for Smith's

services (page 42); and when asked again

the names of the people he sent to Lybia

he asked to talk to his attorney and when

he came back, he claimed the Fifth Amend-

ment. (pages 66-67).

(3) Testified on pages 43-45 con-

cerning a statement he had given the IBI

in April 1977, in which he said he had

told Wilson and Terpil to get lost - that

he did not want any part of them. On

pages 67-69, he was asked why he had told

Wilson and Terpil to get lost, he said he

was uncomfortable with the operation and

because they were not paying their bills.

He was reminded that he had testified

that he had been paid in full and when

asked what bills had not been paid,

he took the Fifth Amendment.

Appendix D, page 2

After Brower made his deal with the

Government and agreed to testify truth-

fully, he was called before the grand

jury in Washington, D.C. on September 10,

1980. On pages 40-49 of the transcript

of that proceeding Brower named the

people he sent to Libya and testified

that he told them they would be working

in Libya in the manufacture of clandes-

tine booby trap bombs and in the instruc-

tion of others in the manufacture of

same with a cover story that they were

working on mine clearance.

Brower then testified as follows:

Q. And in your discussions with Ed

Wilson and Frank Terpil about that being

a cover story to give, why did they de-

cide to pick that cover story? Was it

because that would sound legitimate?

A. Yes.

Appendix D, page 3

Q. Did they give you that reason, OF

did they --

A. Yes. And besides that, there had

been previous contracts given out where

people have been clearing mines on the

Benghazi area, the Egyptian/Libyan border,

and clearing mines from under the -- from

underwater in the Tripolian Harbor.

Q. So it would be a fairly convincing

cover story?

A. Oh, yes.

In Brower's testimony before the

grand jury in Washington, D.C. on Sep-

tember 11, 1980, the following questions :

were answered as follows:

Q. And what sort of -- To what country

were they talking about delivering these

explosives?

A. To north Africa, Libya.

Appendix D, page 4

Q. Did they say what they needed all

the explosives for?

A. They were talking about mine clear-

ing and instructional units, and--

Q. All right. Let me put the question

to you this way, Mr. Brower. When you

went to the meeting and when you were

discussing the needs of Mr. Wilson and

Mr. Harper, when you were discussing

their needs, you had in mind, did you

not, something that you wanted to accom-

plish by getting into a Libyan market?

A. Oh, yes.

Q. And what sort of things did you want

to accomplish by getting into that market?

A. Okay. What we wanted to do was to

be able to develop an open market for all

of our products, and to develop business

in that area, and in order for us to get

over there, we would have to supply them

Appendix D, page 5

with this material and they would then

further the sale of our products in that

area.

Q. All right. So you were interested

in getting a foot in the door, so to

speak, in Lipya?

A. Correct.

Q. And what types of things were you

thinking of that you would be able to do

in the future in Libya?

A. Well, there we could do underwater

demolition; we could clear the Tripoli

Harbor. We could work in the Benghazi

mine fields, and, in general, this type

of work.

Q. So there were a number of things

that you probably could get into in

Libya?

A. une other thing, too; we could

teach their people how to dive and so

Appendix D, page 6

forth.

Q. But when Wilson and Harper and the

group present at that meeting, when they

were talking to you about what they were

doing in Libya and what they wanted to

do for them --

A. It was different.

Q. Okay. What was it strictly?

A. They were to teach the Libyans how

to make explosive devices.

Q. And when you say "explosive devices,"

what do you mean?

A. Demolition devices, booby traps,

mines, fuses, and that sort of stuff.

Q. Like turning a household item into

a bomb?

A. Yes.

QC. Like a lamp that you turn the light

on, and it goes "boom"?

A. Lamps, toasters --

Appendix D, page 7

Q. Articles of that nature?

A. Yes.

(Pages 17, 18, and 19)

In connection with sending his men

to Libya in 1976 Brower testified on page

49 that they met at his house in Califor-

nia and they "...treveled with myself

and my wife to Washington", they were

taken to Wilson's place in Virginia.

Brower then testified on page 51

as follows:

Q. When you were at Wilson's farm, did

you say that your wife, Peggy, was with

you also?

A. Yes.

Q. What happened after your meeting

at the farm?

A. Well, when we were setting this whole

thing up, Wilson and his wife -- this is

prior to, I believe, and possibly by

Appendix D, page 8

phone -- stated that his wife had not had

a vacation in some time, and I said mine

hadn't either, so since we were going

to be going over, we might as well take

a trip, the four of us, around the con-

tinent and just show our wives a good

time for a vacation, for two weeks.

Q. So what happened?

A. When we got over there, I was there

about one day or so, and we were all

staying at this one hotel -- the men had

left to go to Libya -- and I got a call

and Ed says, "Can you get packed right

away? We're going to Libya."

Q. Did you go to London also?

A. Yes.

Q. And from London, you and Ed Wilson

left in a day or two to go to Libya?

Is that what you're saying?

A. Yes. (Page 52)

Appendix D, page 9

On page 72 of the transcript Browe:

testified that he told the people he sent

to Libya "...while they were over there

any new business they would get we woulc

give them 10 percent of the gross sale

for themselves, so this is incentive so

they could get us new business..."

On pages 38 and 39 of the Transcript

Brower testified as follows:

Q. When you agreed to supply les for Mr.

Wilson and Mr. Terpil, was there any state-

ment by Mr. Wilson or Terpil that they

would be doing anything other than this

operation of making iiawisetius devices

and teaching Libyans or others how to make

them?

A. No.

Q. That was the only thing that they

were supposed to be doing when they went

over?

Appendix D, page 10

A. Right.

Q. Did Mr. Wilson or Mr. Terpil say any-

thing about a cover story to be used in

connection with their -- the men's

participatiwn in this project in Libya?

A. Yes.

Q. Who said it, and what was it that

they said?

As It was between -- I guess between

Terpil, Wilson, and myself. We were go-

ing over there for mine clearance and

harbor clearance.

O. That was the story that was supposed >

to be given to others?

A. That is correct.

Q. But the truth of the matter was

that the men were going over there simply

for this operation of constructing booby

trap bombs and teaching others how to

construct booby trap bombs?

Appendix D, page 11

A. es: in addition to getting any

other contracts within this realm that

they could do.

Q. That was for you, though; not for

Wilson and Terpil?

A. Correct.

Brower also testified before the

grand jury in Washington, D.C. on Sep-

tember 10, 1980, as follows:

"When you testified originally in

this matter on Thursday, of August

23, 1979, and I think it is fair to

say that many of the same questions

that were put to you today were

put to you then...some of your

answers were less candid or truth-

ful with respect to the information

that was being sought of you. Do

you have any explanation as to

why you were not more forthcoming

Appendix D, page 12

with the Grand Jury at that time

that you would like to share with

me today?

No, I think I was just being less

than candid.

Would it be fair to say that you

did not want to acknowledge your

involvement in this operation?

Well, I think I was more interested

in protecting the people I was

working with.

And in doing that protection, isn't

safe to say, Mr. Brower, that you

misled the Grand Jury with your

testimony last time.

The Witness: I would say yes.

Mr.

Barcella: And isn't it safe to say

that in trying to protect those people

that misleading included inaccurate

answers to some questions.

Appendix D, page 13

The witness: I would also say yes."

(Pages 102-103)

And Brower testified before the Hou-

ston Grand Jury on March 9, 1982, as

follows:

Q. "Mr. Brower, is it correct that

you have testified on two occasions

in the District of Columbia before

a Grand Jury?"

A. Yes (page 65, lines 22-25)...

Q. “Would it be fair to say that your

first testimony before the Grand

Jury in D.C. was somewhat adifferent

from your second testimony?"

A. Yes (page 66, lines 13-16)...

Q. "Were you indicted in the District

of Columbia in March of 1980?"

A. I believe so.

Q. After the return of that indictment,

did you enter into an agreement

Appendix D, page 14

with the United States Government

by which you plead guilty to one

Count of the Indictment and agreed

to testify truthfully as to your

knowledge of certain matters?

A. Yes.

Q. On behalf of the United States?

A. Yes (page 66, line 23 to p. 67,

line 7).

Peggy Brower, the wife of and office

manager for Brower, testified in peti-

tioner's trial on May 19, 1983, as foll-

Ows:

0. During the year, 1977, did you have

nA any knowledge of what Mr. Brower

was doing in connection with either

Mr. Wilson or Consultants Interna-

tional or Libya or any thing of

that kind?

A. No, sir.

Appendix D, page 15

The testimony of Mr. Brower was

Genied to petitioner in which Brower

testified that his wife accompanied

Rrower and his men to Washington, to

Wilson's farm in Virginia fora conference

and Mr. & Mrs. Brower went with Mr. and

Mrs. Wilson to London intending to tour

Furope, but Wilson got a phone call as

a result of which he and Brower went to

Libva. Since petitioner did not know

of the foregoing, he could not cross-

examine her concerning her participation

in or knowledce of Brower's activities

in connection with shipment of C-4 and

other explosive devices to Libya. In

such situation petitioner was foreclased

by Mrs. Brower's apparently false answer

that she had no knowledge of Brower's

nefarious activites in Libya.

Appendix D, page 16

After Brower's employee Smith, made

a deal with the Government, he recanted

much of his prior testimony before the

Washington, D.C., grand jury on September

13, 1979, and testified before that

grand jury on September 11, 1980.

In his 1980 testimony he testified

to a shipment of C-4, explosive device

and a gun Brower made from the airport

at Ontario, California, via Uganda

Airlines to Uganda in March 1977. The

following questions were asked and

answers given:

Q. Was there anyone else present,

assisting at the loading?

A. The captain of the plane, a couple

of air crewmen, I believe there was

some -- I just don't -- Well, my brother

bha there helping.

Q. Any other people associated with the

Appendix D, page 17

firm?

A. l believe Mr. Bloom was either

there or he had been there. I remember

secing him there at the airport. I'm

not sure if he was there that morning or

if it was the day previous.

Q. Now, when you took off, that was

what, on the 20th of September?

A. That would be on the 20th.

(Grand Jury transcript, Washington, D.C.

September 11, 1980, page 65).

The reference to September 20 is to

the year 1977, which is about ten days

prior to the C-4 shipment involved in

petitioner's case. Smith left with the

Uganda plane and, while in Uganda, in-

structed Ugandans in the use of explo-

Sive devices.

Brower made the Uganda shipment at

the request of a Mr. Terpil.

Appendix D, page 18

Smith was asked the following ques--

tions and answered same as follows:

Q. Since you left Uganda, have you ever

spoken with or seen Mr. Terpil?

A. HO, Sir.

Q. And I take it, therefore, you've

never talked with him about the substance

of your testimony today?

A. No, sir.

Q. Other than Mr. Bloom, your lawyer,

have you talked with anybody about your

testimony today?

A. No, sir.

(Grand Jury transcript of testimony,

Washington, D.C. grand jury, September 11,

1980, page 69).

On pages 46-48 of the transcript of

Smith's testimony before the Washington

Grand Jury on September 13, 1978, he

referred to notes he had made based on

Appendix D, page 19

"what I Gan remember and what Peggy

Brower and Jerry Brower and I have been

able to go back and piece together of

what happened" in connection with ship-

ment of C-4 and other items "on or after

March 23, 1977".

On page 14 of Smith's testimony

before the Washington, D.C. grand jury

on September 13, 1979, he testified that

he always drew his pay from Brower's

corporation, J. S. Brower and Associates.

The transcript of Brower's testimony

before the grand jury in Washington, D.C.

on August 23, 1979, consists of 68 pages

of testimony. The excised copy of the

transcript supplied to petitioner contain-

ed 34 blank pages and 19 other pages with

excisims.

The transcript of Brower's testimony

before the grand jury in Washington, D.C.

Appendix D, page 20

on September 10, 1980 consists of 100

pages of testimony. The excised copy

of this transcript furnished to peti-

tioner contains 68 blank pages and 23

pages with excisions.

The transcript of Smith's testimony

before the grand jury in Washington, D.C.

on September 13, 1979, canprises 92 pages

of testimony. The redacted copy of this

transcript supplied to petitioner contain-

ed 72 blank pages and 2 pages with

excisions.

The transcript of Smith's Washington

D.C. grand jury on September 11, 1980,

comprises 83 pages of testimony. The

redacted copy of this transcript supplied

to petitioner contains 70 blank pages and

6 pages with excisions.

Appendix D, page 21

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

UNITED STATES OF AMERICA :

v. : Criminal No. H-82-139

EDWARD J. BLOOM, et al

AFFIDAVIT s 3 = 2 3 g 3

D. JERRY RUBINO, being duly sworn deposes and says:

1. I am the Department Security Officer, United States

Department of Justice. In this capacity I am responsible to

the Assistant Attorney General for Administration and the

ttorney General of the United States for assuring

compliance within the Department of Justice with the provisions

of Executive Order 12365, entitled "National Security Informa-

tion". This Executive Order, and its predecessor orders,

provides direction and guidance regarding classified information,

material and facilities. The Executive Order also provides

direction and guidance regarding the determination of classifi-

ability of information, material, and facilities.

2. I submit this affidavit in response to the presiding

Judge's request for assistance on October 18, 1982, in the

above-captioned case, regarding the classified nature of

and/or classifiability of the following:

to the Honorable Ross Sterling, dated October 18,

1982 written on Holiday Inn (Memorial Plaza) Station-

ary. (Filed October 18, 1982 by Judge Ross N. Sterling

Exhibit A)

“e A silver coin approximately 1 1/2" in diameter and

1/8" thick. One side is struck with a Liberty Bell

likeness with the words “Liberty Mint" at the top of

the bell. The words "ONE TROY OUNCE" appear above

the bell and the words "999 SILVER" appear below the

bell on the outer circumference of the coin. The

reverse side of the coin has an eagle perched atop a

branch. The words "GOD, MAN AND COUNTRY" appear

above the eagle on the outer circumference of the

coin. Below the eagle, also along the outer circum-

ference, appears a laurel branch with the date *1974"

appearing midway in this branch. (Exhibit B)

« DEFENDANT'S

_. EXHIBIT. -

. vk,

APPENDIX G A,

c A seventeen (17) page typewritten transcript dated “(IN

CHAMBERS, OCTOBER 18, 1982)," which refers to CRIMINAL

ACTION NO. H-82-139. Thais transcript is certified by

Court Reporter CLINTON RA. GETTIG. (Exhabat C)

3. On October 19, 1982, I dispatched James Londergan, a

Security Officer on my staff, to meet with tne presiding Judge

and to pick up those articles of evidence described in paragraph

2 hereinbefore. Mr. Londergan returned to Washington, D.C. at

6:30 p.m., Oc ober 19, 1982. These articles of evidence have

been either in Mr. Londergan's personal custody or secured in our

security vault since received from the presicing Judge.

4. On October 20, 1982 at 0915 a.m., I met with Messrs.

Londergan and Orfeo Trombetta Jr, my special Assistant, to

@etermine a course of action to determine, as requested by the

presiding Judge, the classified nature of or classifiability of

this evidence.

5. At 11:00 a.m., October 20, 1982, Messrs. Londergan and

Trombetta hosted a meeting with the following U.S. Government

officials:

° Stuart P. Seidel

Assistant Chief Counsel (Enforcement and Operations)

U.S. Customs Service

° Garnet J. Fee

Customs Inspector, Program Manacer

U.S. Customs Service

° Eddie 2. Pali

Special Agent

Bureau of Alcohol, Tobacco, and Firearms

U.S. Department of Treasury

° Michael C. Huckaby

Acting Deputy Chief, Investigations

Bureau of Alcohol Tobacco, and Firearms

U.S. Department of Treasury

Each individual was afforded the opportunity to review the

evidence entrusted to Mr. Londergan by the presiding Judge. Each

was provided with a photocopy of the coin and requested to

determine, through applicable senior officials in their

respective agencies, whether or not such a coin has ever been

usec as described by the Defendant. Although the Defendant's

October 18, 1982 letter to the presiding Judge and the transcript

of proceedings occurring in chamber on October 18, 1982 were

reviewec, ccpies of these documents were not made.

APPENDIX G

6. At 5:15 p.m., October 20, 1982, Messrs. Loncergan ane

Trombetta met with senior officials of the Central Intelligence

Agency. - The evidence was reviewed by these Officials and

_ Photocopies of the coin provided for their use internally. At no

time was the transcript released or copied.

V3 On October 21, 1982, in order to develop some credible

information about the coin itself and possibly the "Liberty

Mint,” a telephonic request for assistance was placed to

the Counterfeit Division of the U.S. Secret Service. Based on a

return telephonic report from Ted Hall, Special Agent,

Counterfeit Division, U.S. Secret Service, who is an experienced

numismatist, both in the U.S. Government anc in his private

“ endeavors, @11 availabie knew professional numismatist sources

fail to identify a “Liberty Mint” per se currently. In all

probability, based on a cursory check cf available records, and

Gecuctive reasoning, the "Liberty Mint” was a part of a now

defunct company known as Liberty Metals, Incorporated, once

located in Provo, Utah. The coin itself was probaby mass

procuced as a “bullion piece” popular in the 1974 time-frame due

to the then current values of pure silver. The coin is probak!y

not a unigue one-of-a-kince collectors piece.

8. As the Department Security Officer, U.S. Department of

Justice, I have conducted an analysis pursuant to the Courts

request, based on the information provided by the Court (Exhibit

A-C) and by the aforementioned agencies (affidavits shown as

Exhibits D-G) and I have concludeée that the information and ccin

presented to the Court by the Defendant are not now or have ever

been classifiable National Security Information/material as

defined by Executive Order 12356 or its predecessor orders.

9. Accordingiy, the information and ccin submitted for

review by the Court do not require special protection as

specified in the Security Procedures pursuant to the Classified

Information Procedures Act.

APPENDIX G

Respectfully Submitted

E fora lesb Rubino

Departhent Security Officer

-S. Department of Justice

Subscribed and sworn before me this 21> day of £74, 1982.

Sle » Aye

NOTARY PUBLIC

iy commission expires

March 14,1985 .

APPENDIX G

APPENDIX H

COMMENTS ON LACK OF PROBATIVE

VALUE OF BROWER'S TESTIMONY

1. Brower is an admitted, convict-

ed felon; he admitted that he intention-

ally and deliberately violated the law

with respect to the subject shipment; he

admitted engaging in terrorist waltvitice

by teaching Libyans in 1976 and 1977 how

to put explosives in clandestine house-

hold items; he admitted that he acted

dishonestly in changing the invoice to

reflect 60 pounds in each can containing

C-4 instead vf the true weight of 50

pounds per can.

2. In his plea bargain with the

United States, Brower ageeed to testify

truthfully against petitioner and others

and, if he told the truth and admitted

telling Biocom that the medallion was

APPENDIX H, Page l

National Security Agency identification

piece (if, in fact, it was not), he would

have been guilty of the crime of falsely

pretending to be an officer or employee

of the United States (18 U.S.C. 912) and

possibly guilty of a crime under 18 U.S.C.

Sec. 701 relating to possessing colorable

imitation of a United States identification

piece.

3. When Brower could not recall

facts clearly and he was asked if Bloom

said so and so, he replied: If Bloom

says that, then it is true. And when

questioned about whether envelopes he

gave to Bloom to take to a Switzerland

Bank were sealed or not, he could not

remember but said that if Bloom says

they were sealed "Then I believe him".

In other words, Brower says Bloom

is truthful in all respects, except con-

APPENDIX H, page 2

cerning Brower representing the medallion

to be a National Security Identification

piece.

4. Brower admitted testifying fal-

sely before the Granc Jury.

Brower appeared before the Washington

Grand Jury on August 23, 1979.

Thereafter he and others were indict-

ed in the United States District Court

for the District of Columbia, No. 80-00200.

The Indictment charged Brower and others

with, among other things, conspiracy

illegally to ship explosives to Libya.

Counts 7 and 8 of the Indictment charge

Brower with perjury in his testimony be-

fore the Washington Grand Jury on August

23, i979,

Thereafter, Brower made a deal with

the Government and pleaded guilty to

Count 3 of the Indictment.

ae oe ee ee es

APPENDIX H, Page 3

Brower was again called before the

Washington Grand Jury on September 10,

1980, and his testimony was different

from his earlier testimony before the

grand jury.

Browers exculpatory agreement with

the United States would not protect him

from prosecution under Sections 701 & 912.

It would have been ridiculous for

Brower to give appellant the medallion

for identification within Brower's organ-

ization. Appellant knew all of the people

in Brower's organization; and when Brower

gave the medallion to appellant, Brower

told appellant to ride the plane to Lisbon

and get off and it was not contemplated

that appellant accompany the shipment from

Lisbon to Libya, according to Brower's

testimony, which was supported by appell-

ant's testimony; therefore, there was no

APPENDIX H, Page 4

need or purpose to provide an identifi-

cation piece for anyone in Libya or in

Portugal where Brower had no people. gind i

at that time none of Brower's people were |

in Libya.

It is obvious from the foregoing that

Brower's testimony concerning the medal-

lion is inherently not believable and

amounts to a story he fabricated. If he

told the truth, he would open the door

to further prosecution of him for falsely

representing that he represented an agency

of the United States and falsely using or

rerresenting that.bogus, emblem was a

government emblem. |

The testimony of Brower, who admitted

giving appellant the emblem, is certainly

not sufficient to overcome appellant's

otherwise uncontradicted testimony concern-

ing the medallion for possible use ina

National Security operation.

APPENDIX H, Page 5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.