# Petition for Writ of Certiorari — Bridgeport v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0744%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 905 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0744%3A1. Public record. Not legal advice.