Petition for Writ of Certiorari — Bridgeport v. United States

i Supreme Court, U.S,

95-490 | rt LED

SEP 12 1985

JOSEPH F. SP ANIOL, JR.

CLERK

Seeereeereeseecoescoroes

In The

Supreme Court of the United States

October Term, 1985

co)

(Ninth Circuit No. 84-1062)

ANTHONY JAMES BRIDGEPORT,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

6

PETITION FOR CERTIORARI

TO REVIEW DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

ray

Vv

Law Orricre or ALEx A. GAYNES

By: Aex A. GayNEs

2438 East Broadway

Tucson, Arizona 85719

(602) 792-4983

Date of Mailing+ September 11, 1985

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

No.

See ecerveeveresoeseesee®

In The

Supreme Court of the United States

October Term, 1985

co)

(Ninth Circuit No. 84-1062)

ANTHONY JAMES BRIDGEPORT,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

)

|

PETITION FOR CERTIORARI

TO REVIEW DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

ray

Vv

Law OFfFfice oF ALEx A. GAyYNES

By: Aex A, GayNEs

2438 East Broadway

Tucson, Arizona 85719

(602) 792-4983

Date of Mailing: September 11, 1983

QUESTIONS PRESENTED

The question presented is: Whether Anthony James

Bridgeport’s rights to due process were violated when pre-

judicial irrelevant material was elicited, including the fol-

lowing:

1. At least two separate references attempting to link

Mr. Bridgeport with the Japanese mafia.

2. Presentation of witness testimony involving sexual

relations between Mr. Bridgeport, a black man, and a white

woman.

3. When the rule against exclusion of witnesses was

clearly breached.

4. When the prosecution continually vouched for

witnesses.

5. When an individual not present at trial was termed

a “fugitive”.

6. When the prosecution ‘‘cleaned up” a statement

made by a witness for the purpose of deluding the Grand

Jury.

7. When the prosecution asked the jury to speculate

about other crimes?

i |

TABLE OF CONTENTS |

Page |

TABLE OF AUTHORITIES . ) ill

PETITION FOR A WRIT OF CERTIORARI ~. 1 |

OPINIONS OF THE COURTS BELOW 1

STATRMaNs OF tae CARS ....... 1

pe eet yl ey | Dy | by: SO 3

PS SERENUEIER Sreimee econ Pbnene ruin setae PRAM arto NET 5

EXHIBIT A—Opinion of the U.S. Court of Appeals

for the Ninth Cireuit (Memorandum filed

IEE scoiciasclestascosinldeasscn ccna adam iammaoal App. 1

EXHIBIT B—Order of the U.S. Court of Appeals for

the Ninth Cireuit (Denial of Petitioner’s Motion for

Rehearing and Suggestion for Rehearing en banc)

ey MIU eickasccsasticeicniccd aaa sini ccasilinsancitliciaradl App. 7

ill

TABLE OF AUTHORITIES

Page

Berger v. U.S., 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79

L.Ed.2d 1314 (1935)

Dunn v. U.S., 307 F.2d 883 (5th Cir., 1962)

U.S. v. Copolla, 479 F.2d 1153 (10th Cir., 1973) 5

U.S. v. Laberbera, 581 F.2d 107 (5th Cir., 1978) ............. 7

USS. v. Lattimer, 511 F.2d 498 (10th Cir., 1975) ............. 5

U.S. v. Love, 534 F.2d 87 (6th Cir., 1976) 6

U.S. v. Ludwig, 508 F.2d 140 (10th Cir., 1979) 5

U.S. v. Paoli, 603 F.2d 1029, cert.den. 444 U.S. 926,

100 S.Ct. 264, 62 L.Ed.2d 182 (Court of Appeals,

Fee): SE chicnaiinnaiiaiisapaidiin 6

USS. v. Perry, 512 F.2d 805, 807 (6th Cir., 1975) ... ........ 6

US. v. Rios, 611 F.2d 1335 (10th Cir., 1979) 2... 5

US. v. Young, 736 F.2d 565, 569 (10th Cir., 1983) 0. = 5

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Anthony James Bridgeport, Petitioner herein, prays

that a Writ of Certiorari issue to review the Opinion of

the Ninth Cireuit dated April 19, 1985, and the Order of

the Ninth Circuit, denying Petitioner’s Motion for Rehear-

ing and Suggestion for Rehearing en banc, dated July 30,

1985.

ray

ww

OPINIONS OF THE COURTS BELOW

The Opinion of the United States Court of Appeals

for the Ninth Cireuit is reproduced in Appendix A. The

denial of Petitioner’s Motion for Rehearing and Sugges-

tion for Rehearing en banc is reproduced in Appendix B.

STATEMENT OF THE CASE

Anthony James Bridgeport was indicted along with

Charles Gipson, Moses Thomas, Thomas Michael Price,

Sharkey Wright, Jr., Jim Davis, Jr., and Ernest Gentry.

Mr. Bridgeport was charged with the following:

1. Conspiracy te violate Federal law concerning the

sale of firearms to Japan without first obtaining an ex-

port license.

2. Counts Two and Three dealt with specific sub-

stantive counts involving specifie weapons.

3. Count Four and Count Five dealt with false writ-

ings or documents allegedly causing the return of money

previously seized by the United States Customs Service.

1

2

4. Count Six alleged engaging in the business of

dealing in firearms without a license.

The trial commenced on January 5, 1984, against An-

thony James Bridgeport, Jim Davis, Jr., and Ernest Gen-

try. Named Defendants Gipson, Thomas, and Price testified

on behalf of the prosecution pursuant to “deals”. Named

Defendant, Sharkey Wright, Jr., according to the Opening

Statement of the United States Attorney “. .. is not on

trial. We don’t know where he is.” (RT. 26).

At trial, Mr. Gentry who was named only in Count

One was acquitted. Jim Davis, Jr., who was named in

Counts One and Six, was convicted of both counts, and

Mr. Bridgeport who was named in all six counts, was con-

victed of each count.

Mr. Bridgeport is on bond pending appeal, though he

has spent approximately five months incarcerated for fail-

ure to testify in front of the same Grand Jury which in-

dicted him. Upon expiration of that Grand Jury term,

Mr. Bridgeport was subpoenaed to Washington, D.C. to

testify in front of the President’s Commission on Organ-

ized Crime. Timely Notice of Appeal was filed by Mr.

Bridgeport. On appeal the matter was consolidated with

the case involving Jim Davis, Jr.

Mr. Bridgeport has been allowed to proceed in forma

pauperis, though his counsel will be requesting or assert-

ing no compensation. \

The Court of Appeals upheld the convictions on each

of the counts. Mr. Bridgeport, through his attorney, filed

a Petition for Rehearing and Suggestion for Rehearing

en bane.

— ee

3

The Petition for Rehearing was denied on the 30th

day of July, 1985. The decision denying the Petition for

Rehearing was the last substantive matter pending in front

of the Ninth Circuit.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254.

STATEMENT OF FACTS

It was the position of the prosecution that Mr. Bridge-

port spearheaded the purchase of firearms in Arizona by

personally purchasing weapons, having others purchase

weapons, thereupon transporting the weapons in luggage

via military aircraft from Travis Air Force Base in Cali-

fornia to Yakota Air Force Base in Japan.

The primary testimony concerning the alleged con-

spiracy came from three co-conspirators who were given

various forms of immunity from prosecution.

The first immunized witness, Mr. Owens, who had

previously given contrary statements, attempted to gratui-

tously link Mr. Bridgeport to a man named Yamata who

according to the witness was “the son of the— Osaka

Yakusa; which is like Japanese mafia; organized crime.”

This same witness threw in gratuitous references to mari-

juana and drug use. These matters were irrelevant to the

case, and were not necessary. However, the addition of

these items to the case added significant prejudicial error.

Not content with leaving this error aside, the prosecution

called a witness to translate some Japanese. As part of

this witness’ testimony questions were asked concerning

the Yakusa and Japanese organized crime.

Owens also testified in front of the Grand Jury. A

doctored statement was provided for him and submitted

to the Grand Jury leaving out previous inconsistent state-

ments. According to the witness this was done because he

“wanted to say the right thing for the Grand Jury.” RT.

160, 11. 19-20.

The other immunized witnesses paraded in front of

the Jury with the United States Attorney vouching for

their testimony.

As each witness ended the testimony, the testimony

would go something like this:

“Q. Now, in return for that, what did you agree

to do?

A. To testify truthfully.

Q. And is that why you’re here as a witness?

A. Yes, it is.”

RT. 456, 11. 21-25.

The prosecution also called a young woman named

Laurie Hudgins, who was white, and had her testify con-

cerning relations with Mr. Bridgeport, who is black.

Every form of prejudicial issue was entered into evi-

dence in this case. Sex, race, drugs, doctored statements,

and immunity put together, constituted a violation of due

process.

ARGUMENT

I.

Each of the prejudicial incidents which occurred dur-

ing trial stripped Mr. Bridgeport of some of his due

process protections.

For example, the constant vouching by the United

States Attorney for the credibility of the witnesses eroded

Mr. Bridgeport’s right to be presumed innocent. When

a prosecution by action, words, or deeds “vouches” for the

credibility of witnesses, the conduct is prejudicial, and

should not be allowed. See for example, U.S. v. Young,

736 F.2d 565, 569 (10th Cir., 1983); U.S. v. Rios, 611 F.2d

1335 (10th Cir., 1979) ; U.S. v. Lattimer, 511 F.2d 498 (10th

Cir., 1975); U.S. v. Coppola, 479 F.2d 1153 (10th Cir.,

1973) ; U.S. v. Ludwig, 508 F.2d 140 (10th Cir., 1979).

This is because in our system of justice the United

States Attorney plays an xtraordinary part. As the

Supreme Court noted in Berger v. U.S., 295 U.S. 78, 88,

55 S.Ct. 629, 633, 79 L.Ed.2d 1314 (1935) :

“The United States Attorney is the representa-

tive not of an ordinary party to a controversy, but

of a sovereignty whose obligation to govern impar-

tially is as compelling as its obligation to govern at

all—and whose interests, therefore, in a criminal

prosecution is not that it shall win a case but that

justice shall be done. As such, he is in a peculiar and

very definite sense a servant of the law...”

The erosion of the presumption of innocence and Mr.

Bridgeport’s due process rights accelerated through the

trial. Evidence of previous statements admitted into evi-

dence included references to the Japanese mafia, as did

two separate solicited references to the Japanese mafia.

For the second instance, the United States Attorney’s

Office even called an individual tendered through to the

jury as an “expert”.

This behavior in and of itself has been called preju-

dicial. In the case of U.S. v. Love, 534 F.2d 87 (6th Cir.,

1976), a question (not answer) asked that the National

Accounting System was part of another organization of

“ill-character like mafia or anything like that”... The

Court found that this question alone injected a highly

prejudicial item into the case. The Court attempted to

neutralize the comment, but the case was reversed.

The references to the mafia in Mr. Bridgeport’s case

could not have been cured. Mr. Bridgeport’s conviction

must be reversed.

In the case of U.S. v. Perry, 512 F.2d 805, 807 (6th

Cir., 1975), just the act of the U.S. Attorney in asking a

defendant whether he was a member of “what is called the

Dixie mafia out in East Ridge” was sufficient enough for

that Court to admonish the U.S. Attorney noting that:

“The U.S. Attorney should have been well aware

of the legal irrelevance and prejudicial effect of this

question.” 512 F.2d at 807.

See also, U.S. v. Paoli, 603 F.2d 1029, cert. den. 444 U.S.

926, 100 S.Ct. 264, 62 L.Ed. 2d 182 (Court of Appeals, N.Y.,

1979).

The references to Japanese mafia which had nothing

to do with the case at bar added nothing but pure, un-

adulterated prejudice.

Additionally, prejudicial joinder occurred in the case

to Mr. Bridgeport’s detriment. The conspiracy involving

~

weapons, and the substantive offenses related thereto, were

joined for the purposes of trial with allegations of telling

untrue statements to Customs officials concerning money

(not weapons). The joinder was improper, and the preju-

dice inealeulable. The misjoinder also allowed the prosecu-

tor to speculate concerning the source of funds which had

been taken from Mr. Bridgeport by Customs when the

prosecutor told the jury:

“You can well imagine what the source of those

funds were”... RT. 991,11. 19-20.

To insinuate, or infer other crimes, or to ask the jury to

speculate concerning other crimes, and sources of funds

is reversible error. See U.S. v. Laberbera, 581 F.2d 107

(5th Cir., 1978), Dunn v. U.S., 307 F.2d 883 (5th Cir.,

1962).

In addition, gratuitous insulting prejudicial comments

made concerned marijuana smoking, living with a woman

who was not Mr. Bridgeport’s wife and who was of a differ-

ent race, reference to drugs, and huge sums of money.

When these items coupled together, it is clear Mr. Bridge-

port was denied any semblance of due process. Anyone

of these defects alone was sufficient.

During the course of the trial, the main witness, Mr.

Owens, and another of the witnesses, consistently con-

versed and talked about the case refreshing each other’s

recollection despite the fact that the Court had invoked

the rule. The Trial Court found an actual violation of

the rule by the prosecution’s witnesses. The Court noted:

“As to your motion on the rule—violation of the

rule—I am concerned—I am very concerned about the

fact that a violation took place...”

This violation acted as one more impediment to a fair

trial for Mr. Bridgeport.

The cumulative effect of all cries for this Court to

set the limits of prosecutorial behavior injecting inte a

case prejudicial matters irrelevant to the proceedings in-

troduced just for the purpose of eroding the individual’s

due process protections. |

RESPECTFULLY SUBMITTED this 11th day of

September, 1985.

Law OFrFice oF ALEx A. GAYNES

By: Avex A. GayNnres

2438 East Broadway

Tucson, Arizona 85719

(602) 792-4983

App. 1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 84-1049

DC No. CR 83-230-TUC-RMB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

\ JIM DAVIS, JR.,

Defendant-Appellant.

No. 84-1062

DC No. CR 83-230-TUC-RMB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

ANTHONY JAMES BRIDGEPORT

Defendant-Appellant.

MEMORANDUM*

(Filed April 19, 1985)

Appeal from the United States District Court

for the District of Arizona

Hon. Richard M. Bilby, Presiding

” The po has concluded that the issues presented by

this appeal do not meet the standards set by Rule 21 of the

Rules of this Court for disposition by written opinion. Ac-

cordingly, it is ordered that disposition be by memorandum,

foregoing publication in the Federal Reporter, and that this

memorandum may not be cited to or by the courts of this cir-

cuit save as provided in Rule 21(c).

App. 2

Argued and Submitted, January 16, 1985

Before: FLETCHER, BOOCHEVER, and NORRIS,

Circuit Judges.

Davis and Bridgeport appea: their convictions on

multiple counts arising out of a conspiracy to smuggle

guns from the United States to Japan. Each now assigns

numerous alleged errors at trial. We affirm the convic-

tions of both Bridgeport and Davis on all counts.

The Conviction of Jim Davis

Davis argues that his conviction should be reversed

for a variety of reasons. First, he alleges that the trial

court erred in denying his motion to sever. Davis’s asser-

tion that there was more evidence or more damaging evi-

dence against his co-defendants, while properly considered

by the trial judge as a factor in making the decision

whether or not to sever, does not entitle him to a reversal

of the trial court’s decision. Davis has not demonstrated

that failure to sever was “so manifestly prejudicial that

it outweighs the dominant concern with judicial economy

and compels the exercise of the court’s discretion to sever.”

United States v. Kenny, 645 F.2d 1323, 1345 (9th Cir.),

cert. denied, 452 U.S. 920 (1981). Davis also claims that

he was entitled to a severance under the Sixth Amend-

ment Confrontation Clause. Under the standards enunci-

ated in United States v. Perez, 658 F.2d 654, 660-61 (9th

Cir. 1981), no violation occured: first, Bridgeport was

unavailable—he had a Fifth Amendment privilege—and,

second, his testimony was reliable—he spoke from personal

knowledge about ongoing activities with no incentive to

misrepresent Davis’s involvement at the time.

App. 3

Davis also appeals the denial of a directed verdict of

acquittal, but we conclude that there was sufficient evi-

dence, considered in the light most favorable to the gov-

ernment, to allow a rational conclusion by the jury that

Davis was guilty beyond reasonable doubt. United States

v. Birges, 723 F.2d 666, 672 (9th Cir.), cert. dented, 104

S.Ct. 1926 (1984). As to Count I, there was clearly enough

evidence to establish the existence of a conspiracy, and

under the “slight connection” rule, see United States v.

Dunn, 564 F.2d 348,-357 (9th Cir. 1977), there was more

than sufficient evidence to connect Davis, including his

purchases of handguns, his delivery to Bridgeport, Bridge-

port’s naming of Davis, and Davis’s own incredible ex-

planation. As to Count 6, Davis’s challenge is based on

the lack of direct evidence of his having profited, but his

profits could reasonably be inferred from the evidence of

large volume and multiple transactions. Moreover, proof

of the profit element could have been established by Davis’s

admission that he was paid $500 by a white man to buy

the guns.

At trial, Davis did not object to the admission of Ex-

hibits 50, 51, 52 and 53, the Thomasson testimony as to

Davis’s intention to retain counsel, the Owens Japanese

Mafia testimony, or the Greenfield testimony. Because

neither the failure to give limiting instructions, United

States v. Long, 706 F.2d 1044, 1053 (9th Cir. 1983), nor

the admission of this evidence, United States v. Brock,

667 F.2d 1311, 1317 (9th Cir. 1982), cert. denied, 460 U.S.

1022 (1983), constituted plain error, there is no basis for

reversing the district court.

Davis also objects to admission of the hearsay testi-

mony of co-conspirators, but the evidence was properly

App. 4

admitted because all the requirements of Fed. R. Evid.

801(d)(2)(E) were met. Circumstantial evidence is suffi-

cient to link Davis to the conspiracy. United States v.

Testa, 548 F.2d 847, 852-53 (9th Cir. 1977).

Davis now objects to various jury instructions that

were not objected to below. Because of the lack of objec-

tion, the plain error rule applies. United States v. Moore,

700 F.2d 535, 536 (9th Cir. 1983). We find no plain error

in failure to give requested cautionary instruction on prior

inconsistent statements or on the repetitious testimony by

Thomasson.

Davis claims that he was denied effective assistance

of counsel. Although his counsel did fail to object to

various testimony and certain exhibits, we cannot say that

he was not a reasonably competent advocate. Cooper v.

Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978), cert. denied,

440 U.S. 974 (1979). Davis’s counsel did cross-examine

witnesses, make objections, and make a closing argument

to the jury. The objections he did not make might have

been successful, but for the most part would only have

resulted in cautionary instructions to the Jury—a remedy

that a reasonably competent attorney might conclude was

not calculated to improve his client’s chances with the jury.

We are unable to determine “in lizgnt of all the circum-

stances, [that] the identified acts or omissions were out-

side the wide range of professionally competent assist-

ance.” Strickland v. Washington, 104 S.Ct. 2052, 2066

(1984).

Anthony Bridgeport’s Convictions

Bridgeport also assigns multiple errors below. First

he argues that agreements between the prosecution and

App. 5

witnesses, exchanging leniency for truthful testimony, vio-

lated due process, but United States v. Waterman, 732

F.2d 1527 (8th Cir. 1984) (en bane), Bridgeport’s only

authority, involved plea bargains conditioned on results

and not truth. Jd. at 1531. Testimony about the contents

of these agreements is not prosecutorial vouching for the

truthfulness of the witness, and such agreements are prop-

erly admitted into evidence. United States v. Robrer,

708 F.2d 429, 432-33 (9th Cir. 1983).

Bridgeport argues that a variety of evidence—inelud-

ing the Japanese Mafia testimony, testimony as to Bridge-

port’s marijuana smoking, and as to Bridgeport’s cohabi-

tation with a person of a different race—should have been

excluded as prejudicial. We review the trial court’s de-

cision under Fed. R. Evid. 403 for an abuse of discretion.

United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1984).

Although the Japanese Mafia testimony was not relevant

and had some potential for prejudice, given the strong in-

dependent evidence against Bridgeport, any error that

occurred was harmless.

Bridgeport objects to the prosecutor’s comment in

closing argument as to the source of the $13,900. Counsel

have reasonably wide latitude in closing argument, Birges

723 F.2d at 671-72, and the prosecutor’s comments were

within the realm of fair inference. |

Bridgeport now objects to failure to give Instruction

No. 3 on witness credibility, but failed to object below.

Bridgeport has failed to demonstrate that substantial

rights of his were affected. United States v. Patterson,

678 F.2d 744, 774 (9th Cir, 1982), cert. denied, 459 U.S.

911 (1982).

App. 6

Bridgeport contends that the district court should

have declared a mistrial because of a conversation that

took place between two government witnesses during a

weekend hiatus in the trial. Because no showing of preju-

dice was made and because there was no abuse of discre-

tion by the district court, the conversation between prosecu-

tion witnesses cannot serve as the basis for reversal.

Uniied States v. Oropeza, 564 F.2d 316, 326 (9th Cir.,

1977), cert. denied, 434 U.S. 1080 (1978).

Finally, Bridgeport argues that Owens’ reading of a

corrected statement to the Grand Judy violates due process.

Although we agree that the Grand Jury should have been

informed that Owens was not reading his original state-

ment, but a version that had been corrected to eliminate

inconsistent statements, there was no violation of due

process and it was not abuse of discretion for the district

court to fail to use its supervisory power to correct and

deter this mistake. United States v. Ramirez, 710 F.2d

535, 541 (9th Cir. 1983).

Therefore, the convictions of Davis and Bridgeport

are AFFIRMED on all counts.

App. 7

APPENDIX 3

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 84-1049

DC No. CR 83-230-TUC-RMB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JIM DAVIS, JR.,

Defendant-Appellant.

NO. 84-1062

DC. No. CR 83-230-TUC-RMB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY JAMES BRIDGEPORT,

Defendant-Appellant.

ORDER

(Filed July 30, 1985)

Before: FLETCHER, BOOCHEVER, and NORRIS,

Circuit Judges.

The judges on the panel have unanimously voted to

deny the petition for rehearing and to reject the sugges-

tion for rehearing en bance.

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has requested

a vote on the suggestion for rehearing en bane. Fed. R.

App. P. 35(b).

The petition for rehearing is DENIED and the sug-

gestion for a rehearing en bane is REJECTED.