Opposition Brief — Andrews v. United States

In the Supreme Court. of the United States

OctopER TeRM, 1970

No. 1447

OpELL ANDREWS, PETITIONER

Vv.

Unitep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 434 F’. 2d 978.

JUBISDICTION

The judgment of the court of appeals was entered

on November 27, 1970. A petition for rehearing was

denied on January 6, 1971. Mr. Justice Douglas ex-

tended the time for filing a petition for a writ of certio-

rari to and including March 6, 1971. The petition was

filed on March 8, 1971, and is out of time under Rule

22(2). The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

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1, Whether there was a violation of the co-conspirator

rule in the admission of evidence or in the trial court’s

instructions.

2. Whether it was error to ask petitioner if he had

been convicted of a felony then pending on appeal.

3. Whether the district court properly rejected the

claim that an alleged unauthorized wiretap of a co-de-

fendant tainted petitioner’s conviction. :

4. Whether a proper charge was given concerning

the provisions of 21 U.S.C. 174, permitting the jury to

infer illegal importation of heroin into the United

States from its possession.

STATEMENT

Petitioner and Geraldine Griffin were indicted in the

United States District Court for the Central District

of California of federal narcotics violations. Counts 1

through 10 charged Miss Griffin with sales of narcotics

on four occasions. Petitioner was charged only in count

10 jointly with Miss Griffin of receiving, concealing,

selling and facilitating the sale of narcotics on April 3,

1969, in violation of 21 U.S.C. 174. Petitioner’s motion

to sever was granted. Following a jury trial he was

convicted and sentenced to imprisonment for a term

of ten years. The court of appeals affirmed (Pet.

App. A). on TARR

The evidence is summarized in the opinion of the

court of appeals. In substance, it shows that on the

morning of April 2, 1969, narcotics agent Henry tele-

phoned Miss Griffin, with whom he had had narcotics

transactions the previous month, and asked if he could

s

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purchase three ountes of heroin. She said that she

would have to contact ‘‘her man’’’ and that Henry

should call her back the next morning for the time

and place (Tr. 783, 785, 827-828). |

On April 3, Henry spoke with Miss Griffin several

times regarding the purchase of three ounces of heroin ~

at a price of $625 per ounce (Tr. 785, 828). She told

him to meet her in the parking lot of the Midtown Shop-

ping Center in Los Angeles at 11:30 a.m. (Tr. 579, 828).

When Agent Henry drove to the designated place (Tr.

829-830), Miss Griffin told Henry to follow her to an-

other parking lot at a supermarket (Tr. 579-580). At

this location, the agent asked Miss Griffin if she saw her

man. At first she said no but then turned toward the

entrance of the supermarket and said ‘‘Oh, yes, I see

him.’’ She pointed at petitioner who was standing at

the store’s entrance holding a brown paper bag. Miss

Griffin walked up to petitioner and was given the brown

paper bag (Tr. 581, 607, 804-805, 831). She then re-

turned to the agent, reached into the vag and handed

the ageut a clear plastic bag which contained heroin

(Tr. 581, 588, 831). At this point, other agents

watching the transactions converged on the scene and

arrested Miss Griffin and petitioner (Tr. 582, 607-608,

805, 833).

Miss Griffin testified as a defense witness in an effort

to exonerate petitioner from any participation in the

nareoties transaction (Tr. 905, 909-914); she denied

’ During the earlier transactions, Miss Griffin had referred to her

source as ‘‘my man’”’ (Tr. 141).

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pointing out petitioner on April 3 as ‘her man”’ (Tr.

901).

ARGUMENT

1. Petitioner contends that there was insufficient in-

dependent evidence of his participation in a joint ven-

ture with Miss Griffin to justify admission against him

of her statements to agent Henry that petitioner was

‘‘her man.’’ If the jury believed—as government

witnesses had testified—that petitioner handed Miss

Griffin the bro 1 paper bag from which she removed

the heroin, that «vent in and of itself was sufficient

independent evidence joining petitioner to the criminal

enterprise. It is settled that events occurring after

a statement is made can properly be considered in de-

termining the existence of the scheme at the time

of the statement. See Lutwak v. United States, 344

U.S. 604; United States v. Ragland, 375 F. 2d 471, 476-

477 (C.A. 2).

Petitioner also argues that the trial court should not

have left to the jury the question as to when the illicit

association began (see Tr. 1029-1030), but should itself

have determined as a matter of law whether the exist-

ence of the scheme had been sufficiently shown to justify

admission of the out-of-court statements of Miss

Griffin.” The procedure followed by the trial judge was

consistent with the majority rule. It is true that in

recent years the Second Circuit has held that the judge

must make the initial determination that a connection

?In his instructions the trial judge first defined the traditional

elements necessary for the jury to find a knowing partnership in

Rl tg PP Hie Sy Loe ter sagt Nig »

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has been shown and then may instruct the jury that the

participation of any defendant in a conspiracy can be

established by the acts and declarations of other alleged

conspirators. See, e.g., United States v. Baker, 419

F. 2d 83 (C.A. 2), certiorari denied, 397 U.S. 976;

United States v. Jacobs, 431 F. 2d 754 (C.A. 2), peti-

tion for a writ of certiorari pending, No. 917, this Term.

The Ninth Circuit has itself upheld, but not required,

this approach. Carbo v. United States, 314 F. 2d 718

(C.A. 9), certiorari denied, 377 U.S. 953. Whatever

the merits of the minority rule, there was nothing in-

valid in the approach followed here. It is clear

both that there was in fact sufficient independent evi-

dence to render the statements of Miss Griffin admissi-

ble and that the trial judge had so determined ;* peti-

tioner can hardly complain because he was given an

additional opportunity to try to convince the jury to

the contrary. |

The decision in Bruton v. United States, 391 U.S. 123,

does not purport to impair the established rule that

statements by a co-defendant in furtherance are admis-

sible against all members of the joint venture. Compare

Dutton v. Evans, 400 U.S. 74. Moreover, in this case

Miss Griffin testified at the trial and petitioner’s coun-

crime (Tr. 1028-1030) and then charged that ‘‘the membership of

a defendant, or any other person, in such a common plan or ar-

rangement must be established by evidence as to his own conduct,

what he or she knowingly said or did’’ (Tr.*1030).

* in its discussion with counsel regarding the instructions, the

trial court stated that it had not allowed in the statement of Miss

Griffin until it was satisfied ‘‘there was sufficient evidence in there

to establish what might be considered to be a scheme’”’ (Tr. 955).

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sel had full opportunity to examine her about her out-

of-court statements (see Pet. App. A 13).

2. Defense counsel objected to the questioning of

petitioner when he took the stand as to a conviction for

importing marihuana then on appeal.* When it was

agreed that petitioner would be asked only whether he

had been convicted of a felony, there was no objection

(‘T'r. 871-873, 950) ; thus, petitioner has no grounds for

complaint. Moreover, as petitioner himself notes (Pet.

22), the majority view is that questioning as to a prior

conviction still on appeal is proper. United States v.

Enpire Packing Co., 174 F. 2d 16, 20 (C.A. 7), certio-

rari denied, 337 U.S. 959, reaffirmed in United States v.

Hoffa, 367 F. 2d 698, 713-715 (C.A. 7), remanded on

other grounds, 387 U.S. 231, reaffirmed, 436 F. 2d 1243,

certiorari denied, 400 U.S. 1000; United States v.

Owens, 271 F. 2d 425, 426 (C.A. 2), certiorari denied,

365 U.S. 874; United States v. Cipullo, 170 F. 2d 311

(C.A. 2), certiorari denied, 336 U.S. 946; Bloch v.

United States, 226 F. 2d 185, 185 (C.A. 9), certiorari

denied, 350 U.S. 948. See also Newman v. United

States, 331 F. 2d 968 (C.A. 8), certiorari venied, 379

U.S. 975. Only the District of Columbia has ruled to the

contrary. Fenwick v. Umted States, 252 F. 2d 124.

Nor is there any reason in the present context to reach

petitioner’s broader contention that impeachment

* Petitioner’s conviction under 21 U.S.C. 176a was subsequently

reversed and remanded under Leary v. United States, 395 U.S. 6,

to determine whether petitioner knew of the illegal importation.

On remand, a finding of knowledge was mae and the conviction

was reimposed ; that conviction is now on appeal.

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through use of prior convictions should be drastically

curtailed.

3. Miss Griffin testified that one of the agents who

drove her down to headquarters after the arrest told

her that there had been a “‘tap’’ of her telephone. She

was unable, however, to identify the agent or provide

any other details (Tr. 924). Agent Henry testified

that he notified the other agents via radio from his office

of the substance of his telephone conversations with

Miss Griffin on the day of the arrests (Tr. 833-834).

While agent Carter, originally called to identify a

handwriting exemplar of petitioner, testified that he

had been advised to take up surveillance by a different

method—.e., by car radio—(Tr. 812-813), this hardly

supported the claim of the use of wiretap evidence

against Miss Carter, much less against petitioner.

4, Petitioner’s contention that it was error to in-

struct the jury that it could infer illegal importation

of heroin into the United States by virtue of pos-

session is answered by Turner v. United States, 396

U.S. 398. Testimony introduced at the trial of co-

defendant Griffin as to the possibility that the heroin

could be domestically synthesized (Tr. 296-298), was

not presented at petitioner’s trial. In any event, that

possibility, known at the time of the Turner decision,

does not impair the overwhelming evidence that her-

oin consumed in the United States is illegally imported.

Turner v. United States, supra, at 415-416.

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CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied. >

ERWIN N. GaRiswo.p,

Solicitor General.

Wir. Wrasor,

Assistant Attorney General.

BEATRICE ROSENBERG,

Perer.A. CHAPIN,

Attorneys.

May 1971.

¥ U.S. Government Printing Office: 1971—423-175/607