# Petition for Writ of Certiorari — Smith v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1492%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 883 ## Text Supreme Court of the United States ms $6 ” October Term 197] DALTON CARL SMITH, - Petitioner. Vv. _UNITED STATES OF AMERICA. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth —— ARTHUR J. CROWLEY’ 1680 North Vine Street, Suite 515, Hollywood, Calif. 90028, Attorney for Petitioner. Parker & Son, Inc., Law Printers, Los Angéles. Phone 724-6622 2 Re aE y EE BER RR AP GER ALTe oo | SUBJECT INDEX Court of Appeals Holding the Bruton. Rule and the Sixth Amendment Right of Con- frontation Not to Be Violated by the Admis- ~ sion Into Evidence of Extra-Judicial State- ments of Alleged Co-Conspirators Not Avail- able for Cross-Examination, Is .in Conflict With the Decisions of Other Courts of Ap- peals on the ‘Same Contitutional Issue; and Is an Important Question of Federal Constitu- tional Law Which Has Not Been, but Should Be Specifically Determined by This Honor- re eR ee aes The Decision Below by the Ninth Circuit Court of Appeals Upholding the Procedure. of the=Trial ‘Court Which Permitted Extra-. Judicial Statements of Alleged Co-Conspira- - tors to Be Admitted Into Evidence and ‘Heard by the Jury Prior to the Government's Proving Prima Facie the Existence of a Con- spiracy Violated Petitioner's. Rights -Under the Fifth Amendment Due Process Clause: ae Page Opinions Below _...... Paper enon Te So Or AR eee Jurisdiction oo... eee Pelee oe a Questions Presented icsabbiacesahasabebsnse cou sc eneiapeninnatees ce 2 Constitutional sid ene Provisions Involved . | Statement of the Case Va 5 Statement of ice eee el pea | RE Seon 6 ’ Reasons for Granting the Writ -.............0........ ignsnag. AE 1. The ‘Decisions Below by the Ninth Circuit 11. Rage and Is an Important Question of Federal: Constitutional Law Which Has Not Been, but Should Be Specifically Determined by This Honorable Court) ....00000..000000000200000022-.- The Failure of the Trial Court to Order the Government to Produce the Minutes of the Prior Grand Jury Testimony of the Witness) Jerry Millican, After Repeated Requests by _ the Defense That Said Minutes Be Pro- duced, Violated the Jencks Act, 18° U.S.C. 3500, and Constituted © Reversible Error ...... The Failure of the Trial. Court to Give Peti- tioner Smith’s Counsel Reasonable Time to Examine::the Material Produced Pursuant to 18 U.S.C. .3500 and to Properly Prepare for Its Use, Constituted Reversible Error .......... 24. 30. Various Errors Occurred at Trial Which Prej- | udiced Petitioner’s Right to a Fair Trial, as Well as His Right to Due Process Under the Fifth Amendment to the United States Con- WON ico Bae, A. Inflammatory and Prejudicial Conduct of the Government .....:...0...0000000... B. Bias and Hostility of the Trial Court .. @ There Was Insufficient Competent Evi- dence to Sustain. Petitioner’s Judgment “of Conviction .......... Act MIA Re it Mae ee: | There Was Insufficient Competent Evidence to Prove That the Stock Certificates in Question Had Been~ WN Suenos au 34 34 42 45 . iii, Page (ii) There Was Insufficient Competent Evidence te Prove That There ‘Was a Conspiracy and That Peti: ttoner Participated Therein; or ‘That in Fact - Any = Had nes Committed 0.0.0.2. as 50 Conclusion .......... Seon RS Se anne eu 52 Appendix A. Opinion of the Court of Appeal for the .Ninth Circuit. ........... ptbnehs chahendaasacoanh App. p. | . Appendix B. Judgment and Commitment of the. District Court ........ PTS AER ee ----App. p. 2 iv. - TABLE OF AUTHORITIES CITED Cases Page — v. United States, 391 U.S. 123 . wit, 24 Pe a, LOO CT -14, 15, 16, 17, 18, 19, 20, 22, 23. Butler v. U.S., 408 F.2d 1103 51 Campbell v. United States, 415 F.2d 356... 19 Carbo v. United States, 314 F.2d 718, cert. denied df SS. SEAN ONT aE .. 20 Della Paoli V. United States, 352 US. 232, 1 L. Ed. 2d 278, 77 S.Ct. 294 liseatleec Giannis 13, 15 Fitzpatrick v. ‘United States, 410 F. EM cckiticsecs 52 Gay v. United States, oe Wane Wee sick 45 Glasser v. United States, 315 U.S. 60+... 20 Hale v, United States, 410 F.2d 1472000 52 Jackson v. “Denno, 378 U.S. 368 _....... 21, 22, 23, 24 Migliore v. United States, 409 F. FO ieee, 19 Nolan v. United States, 423 F.2d 1031 nats 18 Parness.v. United States, 415 F.2d 346... 19 Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 «..........2... Niicidodtucncsepisbeidaaieniadiccille ate co 24 Scales. v. United ‘States, 367 US. 203, 81 S.Ct. 1469, 6 °L.Ed.2d 782 vaseesenenee pausannnidaditeeaetueiiaces 28 United States v. Bozza, 365 F.2d 206 ....... 18 United. States v. Braico, 422 F.2d 543, cert. denied 398 U S& iniidinpicenib init bicewmidiannetaenaiiandacctsancec ise. 46 United State v. Castello, 426 F. 2d er - 18 United Giayés v. Echeles, 22 F.2d 144 0 45 ‘United States -v. _ Guajardo-Melendez, 401 F.2d 35 naeeneesencecannnnnnnconnccnccpennencnsecepeccccecacececens 19, 37, 39, 40 —_~ | V. ? Page United States v. Meisch, 370 F. 24 168 TAD EASY 28 United ‘States v. Missler, 414 OM stein “shasescscccnns = asc, United States v. Schroeder, -433 F.2d O06 19 Vote v. United States, 156 F.2d _ Bis De PO PO 45 : Rules Federal. Rules of Criminal Procedure, Rule 14 ..... 15 a | Statutes - United States Code, Title 18, Sec. 371 ~ ae * United States Code, Title 18, ‘Sec. 2314 . IRE Mis 5. 4 United States Code, Title 18, Sec: 2315 Cee 45 United States Code, Title 18, Sec. 3500 . & 3, 24, 30 dncesanepanquinestyeseeqpensasbantsssssanseonasensoscnahes ante" 32, 33 United States Code, Title 18, Sec. 4208(b) _...... 5 United States Code, Title 28, Sec. (408(1) ........., | United States Constitution, ‘Fifth Amendment . 2, a seunlbeptineinanMibaidanetbtnerbuteindlvescc =) Saeeme 42 ~ United States Constitution, Sixth Amendmeni i ae -spuledebinshadnbatpnsdannsnasaabhnemisdstusweapaiseslaseccssacisia.2 18, 19, 20 . Textbook 38 Nebraska Law Review (1959), p. 744 ow. 16 9 or" IN THE _ Spree Court of the United States October Tern | 97 | eee DALTON CARL SMITH, _ Petitioner. Vv. UNITED STATES OF AMERICA. Petition for a Writ of Certiorari to the’ United States Court of Appeals for the Ninth Circuit. The petitioner, Dalton Carl Smith, prays that a writ of certiorari issue to review the opinion and judgment of the United States Court of Appeals for the Ninth Circuit rendered in this proceeding on aioe. he 20, 1971. Opinions Below. | _ The opinion of the Court: of Appeals, as yet un- reported, appears at Appendix A, infra, p. 1. A copy of the District Court Judgment and Com: mitment, filed on March 1, 1971, appears at Appendix BD, ifra, 2, Jurisdiction. The judgment of the Court of Appeals was -entered on July 20; 1971. See Appendix A, p. 1, infra. - This petition for certiorari was filed less than 30 days from the aforesaid date. The Loon ig of this Court is invoked under 28 U.S.C. § 1254(1). | cos ae Questions Presented. 1. Whether the Bruton rale and ihe Sixth Amend- ment right of confrontation are violated by admission into evidence of exira- judicial stat cements of alleged co- conspirators not available for cross-examination. a Whether che, procedure of the trial court in ad- mitting and permitiing the jury to hear ihe extra- judicial statements of alleged co-conspirators prior to the Government’s proving, at least prima facie, the ex- | ‘istence of -2 conspiracy, violated Petitioner's right-to Due Process under the Fifth Amendment. 3. Whether the failure of the trial court lo order the Government to produce the minutes of the prior Grand Jury testimony of the witness Jerry Millican, after repeaied requests by ‘the defense that the said minutes be. produced, vidlated. the Jencks Act, 18 U.S.C. 3500, and constituted reversible error. . 4. Whether the failure of the trial court to give Petitioner’s counsel. reasonable time to examine the material produced pursuant to 18 U.S.C. 3500 and to properly prepare for its use, constituted yversible error. 5. Whether various errors occurred at trial which prejudiced Petitioner's right to a fair trial, as well as his right to Due Process under the Fifth Amendment: : A. Whether there was inflammatory and preju- dicial conduct by the Government. B.. Whether there was bias and hostility exhib- ited by ‘the trial court. C. Whether there was_ insufficient competent evidence to sustain Petitioner's judgment of con- we viction. eal . , GR ‘ ls peat ah the TREES REE hl Danas, Constitutional and Statutory Provisions Involved. Constitution of the United States, Amendment V: “No person shall . . . be deprived of life, liberty, or property, without due process of law. . .” ~ Constitution of the United States, Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him’. . .” Section 3500, Title 18 of the United States Code (Jencks Act): “DEMANDS FOR PRODUCTION OF. STATE- MENTS AND REPORTS OF WITNESSES: “(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Govern- ment witness (other than the defendant) “shall be the subject of subpena, discovery, or inspection _until said witness has oo on direct examina- tion in the trial of the case.’ “(b) After witness called by the United States has testified on direct. examination, the court shall, on motion of the defendant, order the - United States to produce apy statement (as here- . inafter defined) of the witness in the Possession of the United States’ which relates to the subject ‘matter as to which the witness has testified. If the . entire contents of any such. statement relate to the subject matter of the testimony of the witness. the court shall order it to be delivered orden! to the defendant for his examination and use.’ rea “(c) If the United States claims that any Sstate- ment ordered to be produced tnder this section contains matter which does not relate to the sub- ject matter of the testimony of the witness, the court shall order the United States to deliver Such statement for the inspection of the court in camera. Upon such delivery the court shall excise- the portions of such statement which do -not relate to the subject matter of the testimony of the witness. With such material- —excise, the - _court-shall“then direct delivery of such statement | to the defendant for his use. If, pursuant to such. procedure, any portion of such statement is with- held from the defendant and the defendant objects , to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any state- - ment is delivered to a defendant pursuant to this section, the court in its discretion, upon applica- | tion of said defendant, may recess proceedings in the trial for such time as it may determine. to be’ “reasonably required for the examination of: ‘such — statement by said defendant and his preparation _ for its use in the trial.” “(d) If the United States elects not to re ‘ with an order of the court under ‘subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the. court may. direct, the court shall strike from the record the testimony of the witness, and the trial Shall « oe proceed unless the court in its discretion shall de- termine that the interests ‘of justice’ require that a mistrial be declared.” “(e) The term ‘statement’, as used in subsec- tions (b), (c), and (d) of this section in relation to sai witness called by the United States, means— ok * sfc “(3):a statement,’ however, taken or recorded. or a transcription mereot, if any, made by said witness to a.grand jury.” : Statement of the Case. In September of 1970 Petitioner Dalton Carl Smith, Emil Tucker, Leo Meyer Ogul and Maurice Medlevine were indicted by the Federal Grand Jury for the Cen- - tral District of California for: conspiracy, interstate transportation of stolen and forged securities and the re- ceiving and sale of stolen and forged securities in. violation of Title 18 U.S.C. $$ 374, 2314, and 2315. Jury trial of Petitioner Smith and co-defendant Tuck: er was commenced on January 5, 1971 before the Hon- orable, Manuel L. Real, United States District Judge Presiding. Petitioner-was found guilty on eighteen of — the nineteen counts charged, while co-defendant Tucker was found guilty of all nineteen counts charged. Peti- tioner was sentenced to the maximum period prescribed by law and for a 90 day study under the provisions of 18 U.S.C. § 4208(b). Petitioner was released on bail pending appeal on condition that he file an expedited appeal. | On March 1, 197] Petitioner filed a Notice of Ap- peal from the Judgment of Conviction and thereafter prosecuted an expedited appeal. , eo ae canted ; In a per curiam opinion, the United States Court of Appeals for the Ninth Circuit, on July 20, 1971 affirmed Petitioner’s judgment of conviction (Appendix A, infra, p. 1.) ' Statement of Facts. The facts relevant to the questions presen: ‘ed by this Petition are as follows: v One Glen Harding Fildes had in his possession cer- ~tain stock certificates some of which were in the names of himself, his mother and his brother. Said stock certif- icates were issued from four companies, among them Coca Cola Bottling of Los Angeles. After Fildes’ death, on September 21, 1968, a search was conduct of his house, car and effects in Alhambra, California in an attempt to locate the said stock certificates. None were > found. On Sepiember 27, 1968 Jerry Millican, an attorney, was registered at the Palmer House in Chicago, IIli- nois. Petitioner Smith introduced Ogul and Medlevine to Millican and a: conversation ensued in Millican’s room. There were also some stock certificates which ' were spread out on the bed. At trial Millican was per- mitted to testify to certain statements made to him by Ogul. Ogul told Millican that he had obtained: the stock from an attorney in Los Angeles. Ogul further told him that there were two brothers and a mother involved with the stock certificates, that one of them had died and that the surviving brother. wanted to sell - the stock for his own benefit-without going through an estate. Millican in looking at one of the stock certi- ficates, a Coca Cola Boitling of Los Angeles certificate. noted that it was in blank with no signature on the reverse side. Petitioner Smith asked “Millican if this yee . stock was suitable for acquisition by the company that Petitioner was then working for, State Fire and Casualty Company of Miami, Florida. Millican told Petitioner that the certificates could only be transferred by the signature of the owner guaranteed by a bank officer or member of the stock exchange, or by execution of a stock power, or by the judgment of a court of com- petent jurisdiction. Millican then advised Petitioner that unless the transfer was effected by one of the foregoing methods, Petitioner should have nothing to do with the. . stock certificates. Petitioner stated that he did not want the stock unless it was a “legal situation.” In October, 1968 Petitioner. Smith visited Benjamin Dobson, president of State Fire and Casualty Com- pany, in the latter’s home in Miami, Florida. At that time Petitioner showed Dobson a Coes Cola Bottling Company stock certificates which was in blank, ie., neither signed nor guaranteed: Petitioner explained to Dobson that the said stock. was tied up in-an estate which had not been settled and which involved two brothers. Dobson told Petitioner that he would like to have stock of that caliber in the company’s investment portfolio, but until it could be transferred into the com- “- pany’s name, the company could ‘hot use it. Petitioner then stated that: “Then, if we can’t use the stock in the company, well I'll give it back to the people I got it from.” . ; On October: 14, 1968 Dobson flew to New York City, where he stayed with Petitioner at the City Squire Hotel. Petitioner introduced Dobson to Ogu! and Med- levine. Smith stated they were in New York to see co- defendant Tucker on business. Also on October 14, 1968 een Henry observed Petitioner and two other — in the offices of co- e se aa | ° defendant Emil Tucker. After: the foregoing meeting, _. Tucker handed Henry a list containing shares. of stock.’ At the top of the aforesaid list was written in Tucker's handwriting “Dalton S. 10-14-68”. On October 15, 1968 one Louis Greenberg came to— Tucker's office for a meeting. Tucker then went into -Henry’s office with ceriain stock certificates and asked Henry to prepare a receipt for them for Greenberg's signature. Henry prepared: the ‘receipt in his own handwriting and checked it against the stock list Tucker had given him the previous day. When Henry examined. the stock certificates at-the time of- preparing the receipt, all of them were signed on the reverse side but none of the signatures were guaranteed. Greenberg signed the receipt” prepared by Henry and received from Tucker all of the stock certificates, listed ‘thereon. Greenberg then sold the said stock piecemeal over a period of time through Koss & Company, a stock ” brokerage -house_ in Brooklyn, New York. Greenberg paid Tucker in cash approximately $130,000.00 during the: course of the stock sales, retaining approximately $20, 000.00 for himself. At one point during the ie. Koss became con- cerned about having guaranteed signatures on the cer- tificates when the signers were unknown to him. Koss therefore demanded that Greenberg produce some proof. of ownership of the securities. Greenberg notified Tucker and advised him that he needed, some docu- mentary proof of ownership as to the certificates. A bill of sale was typed in Tucker’s office. and Tucker © informed Geenberg that he was sending it to Los An- © geles to have it notarized. / Pa . t ce “Se pe Throughout this period of time Ogul and Medlevine were going to Tucker’s office frequently. ‘Also about that time, Ogul informed his business associate, Mor- ton Gorman, ‘in Los. Angeles that a man would .be coming to see him. A man did come to see Gorman -and asked Gorman to obtain a Notary stamp on a bill of sale. Gorman contacted a ‘Richard .Sherrill and to- - gether they obtained a Notary seal on the aforesaid ‘document. The Notary stamp used was that of Allen C. Woodard, III who testified that he had observed ‘Sherill using his stamp on November 11, 1968 and warned him against it. + | Thereafter Greenberg went to Fucker’s office and _ Tucker gave him the executed bill of sale. Tucker took the said document to Koss who thereafter continued . the sale of the securities. During the same period of time, Petitioner also visit- ed Tucker's: office on several occasiony and called Tucker on the telephone. Tucker stated to Henry that’ the monies from the stock sale were distributed to Ogul. Medlevine, Petitioner, Greenberg and himself. During the course of the stock sale, Tucker in-’ formed Henry that Greenberg was retaining a sizable portion of the proceeds for himself and that this created a problem for Tucker because he was obligated to pay the money to others. Tucker informed Henry _ that Ogul and Medlevine were pressuring him for the money. Subsequently, Tucker informed Henry that: he had asked one Joe DiCiccio to help him collect the - stock . proceeds from Greenberg, and‘ also’ resolve his problems with Ogul and Medlevine. Tucker~described DiCiccio as a former bodyguard of John Masiell ; and also referred to DiCiccio as his, ( Tucker’ s).? ‘um- brella”. —10— - | In January 1969, Janet Vincent, the attorney for the Fildes’ estate who had been attem ting to locate the missing stocks, discovered’ that ne sold through the various stock transfer agents in Los Angeles. Through one of these agents; Vincent learned that the stocks had been sold through Koss & Com- pany. Thereafter Vincent had telephone conversations with’ both ‘Koss and Greenberg. After the aforesaid telephone eonversations, Greenberg contacted Tucker -in. George Henry's presence and told Tucker to get the money back’ fast because the ‘certificates were stolen | and forged. Tucker assured. Greenberg that the stocks were good, the signatures were. genuine and that he should not worry. Subsequently “ Greenberg had numerous -Gonversa: tions with Tucker about straightening out the stock situation. Tucker always told Greenberg that the situa- tion would be straightened é6ut, and demanded’ that Greenberg pay him the balance due him (Tucker) *. which was approximately $60:000. Henry and Green- berg were Permitted to testify to various conversations in which Tucker and DiCiccio attempted to get Green-. berg ‘to pay the balance due and also there was talk of bribing a district attorney. in Brooklyn, as well as . bribing’ a detective, Throughout all of these numerous conversations. however, both Henry and Greenberg. testified that Petitioner's name was never once men- tioned, : The Government also introduced records of various telephone conversations allegedly made between Peti- tioner, and the various other cq-conspirators. However, many of the telephone calls were to-or from hotels and there was no showing whatsoever. as to which person at the hotels said calls were addressed. stocks had beén- s. . 4 “asain a a ee eee fe a fr ; | a ee 3 scar SRN Se | REASONS FOR GRANTING THE WRIT. 1. The Decision Below by the Ninth Circuit Court of Appeals Holding the Bruton Rule and the Sixth Amendment: Right of Confrontation. Not to Be Violated by the Admission Into Evidence of Extrae 2 - Judicial Statements of Alleged Co-Conspirators Not Available for Cross-Examination, Is in Con- flict With the Decisions of Other Courts of Appeals ‘on the Same Constitutional Issue; and Is an Im- portant Question of Federal Constitutional Law Which Has Not Been, but Should Be Specifically - Determined by This Honorabie Court. _ As the Statement of Facts indicates, the vast bik ‘of the evidence’ introduced y the Government at Peii- tioner’s trial ear extra-judicial statements of alleged co-conspirator Tucker, as well as extra-judicial statements of Medlevine and Ogul also alleged co- conspirators. - Co-defendant Tucker did not take th ~ witness stand, and Medlevine and Ogul were ab- sent from the jurisdiction and thus. did not testify. As‘a result, no cross-examination of these individuals was * possible by Petitioner. After the Goyernment’s opening statement, Petitioner’s counsel pointed out to the Trial- Court that the joint trial of Petitioner and co-defendant Tucker would present a Bruton problem because of the likelihood of having incriminating extra-judicial state- ments of co- -defendant Tucker introduced into evidence _ with the consequent prejudice to Petitioner. The Trial Court stated that “. . . Bruton does not apply to some- thing that happened ‘denlae the crime. during the con- spiracy.. We still have the conspiracy rule.” |R.T. pp. 93-94.| The Trial Court subsequently admitted into . evidence’ all of the extra- judicial statements of alleged _ CO- “conspirators with a cautionary instruc tion to the jury ‘Sa ee that the jury was not to consider the said statements against Petitioner unless the jury first found that a con- spiracy existed, Petitioner was part thereof and the statements were made during the course and in fur- therance of the conspiracy.’ The’ Ninth Circuit Court of Appeals in affirming Petitioner's judgment of conviction held that “There is a point about Bruton v. United States, 391 U.S. 123. This is not a Bruton case. United States v. Griffin (9th: Cir., 1970), 434 F.2d 978, is applicable.” The Ninth Circuit held in the Griffin case, supra, that Bruton rule is not. applicable to a ‘conspiracy ‘prosecution in that extra-judicial statements. of cg-conspirators not available for cross-examination are exceptions to the hearsay rule and as such are not affected by Bruton. — 'The full text of the Court’s instructions to the jury was as follows: — , | “Ladies and gentlemen, before hearing this conversation, _ I do want to-instruct you with reference to the charged co- conspirators and conversations and statements. of co-con- spirators. A ? ; So oe “Whenever it appears beyond a reasonable doubt from the evidence in the case that a conspiracy existed and that a defendant was one of the members, then the statements thereafter knowingly made. and the acts thereafter knowingly . done by any person likewise found to be a member, may be considered by the jury as evidence in the case as to the defendant found to have been a member. even though the statements and acts may have occurred in the absence and without the knowledge of the defendant. provided ‘such statements and. acts were, knowingly made and done during - the continuance of,such conspiracy and in the furtherance” -of some object or puxpose of the conspiracy. Otherwise, any admission or incriminatory’ statement made or act done outside of court by one person may not be considered as evidence against any person who was not present and did not hear the statement made or see the act done. “Therefore, statements of any ‘conspirator which are not in the furtherance of the conspiracy or made: before its existence or after its termination may be considered as . evidence only against the person making them.” |R.T. pp. 175-176. | . Pie : . / 4 ERAT AYP Se TS ei aie CeRemtes ROR, po, Ta _ Petitioner believes, and other Circuit Courts of Ap- ‘peals have held (see infra) that the Bruton rule and the Sixth Amendment right of confrontation are applicable _ to conspiracy prosecutions. . ae In Bruton—v. United States (1968) 391 U.S. 123. this Honorable Court held thaf an accused’s right of _ Cross-examination secured by the’ Confroniation Clause of the Sixth Amendment is violated at his joint trial with a co-defendant who does not testify by the-adimis- sion of the co-defendant’s confession inculpating the ac- cused; notwithstanding jury instructions that the co- defendant’s confession must be: disregardéd in deter- mining the accused’s guilt or innocence. Prior to the Bruton case, the cases held that an in- struction to. the jury to disregard extra-judicial state- ments of a co-defendant inculpating. the defendant in determining ‘the defendant's ‘guilt: or innocence, ‘was | sufficient because juries could be relied upon to fol- low the Court’s instruction to disregard the testimony. The last United States Supreme Court ruling that. juries could be relied upon to follow such .a Court in- struction was Della Paoli vy. United States, 352 US. 232, 1 L.Ed. .2d.278, 77 S.Ct. 294 (a five to four decision). That case was expressly overruled by the Bruton case in which this Honorable Court stated: “We hold that beeause of the stebstantiol risk that the jury, despite instructions 10 the contrary, looked to the incriminating * extra-judicial slate- ments in determining Petitioner's guilt. admission . of Evan’s confession in this joint trial violated Petitioner's’ right of cross-examination secured by the Confrontation Clause. of the Sixth Anvend. ment.” (Emphasis Added. ) EG ORATOR TRE I 14: In ‘challenging the: basic premise that a properly in- ‘structed jury would ignore the co-defendant’s inculpa- tion of the defendant in determining the latter's guil’. this Honorable Court stated: “The fact of the matter is that too often such admonition against misuse is intrinsically ineffec- tive in that the effect of such a non-admissible declaration cannot ‘be wiped from the brains of the jurors. The admonition, therefore, becomes a futile collocation ¥ words and fails of its purpose as a legal protection to defendants against whom - such a declaration should not tell. (Citing from _ the dissent in the Della Paoli case, which disseni .was adopted by the majority in the Bruton case.) The Government should not have the windfall of having the jury be influenced by evidence against the defendant which, as-a matter of law, they should not consider but which they cannot put out of their minds (Citation omitted). To the same effect afd also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concur- ring opinion in Krulewitch v. United States, 336 » U.S. 440, 453, 93 L.Ed. 790, 799, 69 S.Ct. 716: ‘The naive assumption that prejudicial effects can be overcome by instructions to the jury :. . all practicing lawyers know to be unmitigated fic- tion... .’”” (Emphasis added. ) The Bruton case, citing from the leading California case of People - Aranda, 63 Cal.2d 518, 407 P.2d 265, also pointed out that thegfogic of its ruling is not limited to unconstitutionally obtained confessions. but extends to “obviating the risks that the jury may rely upon any inadmissible statements”. (Emphasis added. ) e ' e itn The Bruton case then poinied out, that “our action in 1966 in amending Rule 14 of.the Federal Rules of Criminal Procedure also evidences our repudiation of Della Paoli’s basic premise. Rule 14 authorizes a sever- ance where a defendant Might be prejudiced by a joint trial.” (Emphasis added. ) This Honorable Court in Bruton went on to point out that it isn’t just a confession of a co-defendant that is covered by the ruling, but it embraces a confession or a statement of a co-defendant. It states-as follows with reference to the 1966 amendment of Rule 14: “The Advisory Committee on Rules .said in ex- - planation of the amendment: ‘A defendant may be prejudiced .by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting. instructions to - the jury may not, in fact, erase the prejudice . . . The purpose of the amendment is to provide a procedure whereby the issue of possible preju- dice -can be- resolved on the motion for sever- ance...” (Emphasis added. ) The Bruton case is replete with footnotes citing au- thorities that refute the ridiculous notion that a jury can be relied upon to put this type of prejudicial evi- dence out of its mind simply because the trial Court instructed them to do so. These footnotes state. inter alia, as follows: - “Tt has been suggested that the limiting instruc tion actually compounds the jury’s difficulty -in disregarding the inadmissible hearsay.” See. Broe- der, The University of Chicago Jury Project, 38. —16— Nebraska Law Review, 744 (1959). (Bruton, p. 482 footnote 4): | “Judge’ Hand addressed the subject several times. The limiting instruction, he said, is a ‘rec- ommendation to the jury of a mental gymnastic _ which is beyond, not only their powers, but every- body else’s (Citation omitted). Nobody can in- deed fail to doubt whether the action is effec- tive, or whether usually the practical result-is not to let in hearsay ( Citation omitted). 71 is. indeed very hard to bélieve that a jury will, or for that matter can, in. practice observe the admonition.’ . Judge Hand referred to the instruction as a ‘pla: cebo’, medically defined as ‘a medicinal lie’. Judge Jerome Frank suggested that its legal equivalent ‘is a kind of ‘judicial lie’. It- undermines a moral relationship between the Courts, the jurors, and the public; like any other judicial deception, it meer: the decent judicial administration of jus- tice.” (Citations omitted.) (Bruton, p. 483, foot- note 8.) “Compare E. Morgan, SOME PROBLEMS OF PROOF UNDER’ THE ANGLO-AMERI- CAN SYSTEM OF LITIGATION 105 (1956), who suggests that the use of limiting instructions © fosters an inconsistent attitude towards juries by ‘treating them at times as a group of low-grade morons, and at other times as men endowed with super- -human ability to control their emotions and intellects.’ * (Burton, p. 483, footnote 8) . Is suggested that because the evidence is so un- reliable the need for cross-examination is ob- viated. This would certainly seem contrary to the acceptance of the Rule of Evidence which would a |, ae require exclusion ‘of the confession as to Bruton as ‘inadmissible hearsay, a presumptively unre- liable out- of-court statement of a non-party who ‘was hot a witness subject to cross-examination.’ Post, at p. 486. The theory of the hearsay rule is that the many possible déficiencties. suppressions, sources of error, and untrustworthiness, which lie underneath the/ bare untésted assertion of a wit- ness, may be best brought to light and exposed by the test of cfoss-examination. 5» Wigmore, Evi- ,, at 3. The reason for excluding as an evidentiary matter also re- quires its ¢xclusion as a constitutional matter. (Emphasis the Courts). Surely the sugg estion is not that Pointer v. Texas, for example, .be repudi- ated, and that all hearsay evidence be admissible : so long as the jury is properly instructed to weigh it in light of ‘all the dangers of inaccuracy which characterize hearsay generally.’ Post, at 488.” (Bruton, p. 485, footnote 12.) (Emphasis added.) — Mr. Justice Stewart, in a concurring opinion in the Bruton case, stated as follows: . ; “Quite ‘apart from Jackson V. Denno, however, _ I think it clear that the underlying rationale of the Sixth Amendment's - atti shiaon, Clause pre- cludes reliance upon cautionary “instructions when ~ the highly damaging out-of-court ‘statement of a co-defendant, who is not subject. 10 cross-exam- ination, is deliberately placed before the jury ata joint trial. A basic premise of ‘the Confrontation Clause, it seems to me. is that certain kinds of hearsay (see e.g.. Pointer v. Texas, 380 USS. 400, 13 L.Ed. 2d 923. 85 S: Ct. 1065: Douglas > cohen. v. Alabama, 380 U.S. 400; 13 L.Ed. 2d 934, 85 S.Ct. 1074) are at once so damaging, so suspect, and yet so difficult to discount, that juros cannot be trusted to give such evidence the minimal: weight it logically deserves, whatever instructions the trial Judge may give. (Emphasis in Courts). See the Court's opinion, ante, at 485, note 12. It is for this very reason that out-of-court accusa- --—tion is universally conceded to be constitutionally inadmissible against the accused, rather tlian ‘ad- missible for the little it may be worih. ee the Court)” In the instant case the Trial Court gave and relied on the same type of cautionary instruction which was so criticized in Bruton, when it simply instructed the — jury to disregard the extra-judicial statements of al- leged co-conspirators which implicated Petitioner, un- less a conspiracy was first found. Thus the Trial Court assumed that the jury was capable of putting this hear- Say completely out of its collective -minds, and totally ignoring it, while it deliberated first on the question of whether a conspiracy existed. This procedure supposes that “not one juror succumbed to the nigh irresistible temptation” to resort to this evidence in determining | whether a conspiracy existed. (See Bruton, Footnote 4, p. 481, citing United States v. Bozza, 365 F.2d 206. ) The Second Circuit Court of deities in United States v. Castello, 426 F.2d 905 (1970)-and the Tenth Circuit Court of Appeals in Nolan v. United States, 423 F.2d. 1031 (1970) ‘have held in very recent cases that the Bruton rule and the Sixth Amendment right of confrontation are applicable to conspiracy prosecu- tions. The Seventh Circuit Court of. Appeals’ so held in ee | the case of United States v. Guajado-Melendez, 401 | F.2d 35 (1968). On the other hand, the Third, Fifth, Sixth and Eighth Circuit Courts of Appeals havé taken a position ~ in conformity with the Ninth Circuit Court of Appeals _ and have held that the Bruion rule is not appliable to a conspiracy prosecution in that extra-judicial state- ments of co-conspirators not available for cross-examin- ation are exceptions to the hearsay rule and as such are not affected by Bruton or the Sixth: Amendment right of confrontation. See Parness v.. United States, 415 F.2d 346 (3rd Cir. 1969); Migliore v. United States, 409 F.2d 786 (Sth Cir. 1969); Campbell v. United States, 415 F.2d 356 (6th Cir. 1969): United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970). Because of the above stated conflicts in the recent: decisions of the Circuit Courts. of Appeals on this fun- . damental Contitutional . issue, i.e., the right of con- frontation, this Honorable Court ought to review the - . decision and judgment of the Ninth Circuit -Court of Appeals in-the instant case, and determine whether or not the Bruton rule and the Sixth Amendment right of confrontation are a to conspiracy | Eevee tions. In. this connection Pet diame urges that by failing to reverse the decisions of those Circuit Courts of Appeals which have held the Bruon rule and the Sixth Amend- ment right of confrontation not to be applicable to con- spiracy prosecutions, this Honorable Court would be ‘ condoning the unjustifiable denial of the protections of the Sixth Amendment to a particular class of ac- cused, i.¢., those charged with conspiracy. Such an .un- * warranted classification. i.e., arbitrarily denying Sixth | —— Amendment rights to those charged with conspiracy, would ‘most surely be a denial of due process as to those charged with conspiracy, and would doubtless encourage the Government to add a conspiracy count to any substantive offenses charged, thereby effectively. circumventing the Bruton rule and the Sixth Amend- | ment guarantee of the right of confrontation. _2. . The Decision Below by the Ninth Circuit Court of Appeals Upholding the Procedure of thé Trial . Court Which Permitted Extra-Judicial Statements of Alleged Co-Conspirators to Be Admitted Into Evidence and Heard by the Jury Prior to the Government’s Proving Prima Facie the Existence of a Conspiracy Violated Petitioner’s Rights Under the Fifth Amendment Due Process ‘Clause; and Is an Important Question of Federal Constitutional Law Which Has Not Been, but Should Be Specif- * ically Determined by This’ Honorable Court. It is well established that before the extra-judicial declarations of conversations of a co-conspirator are: admissible against a defendant, there must be independ- ent evidence of the conspiracy’ and deféndant’s con- ‘nection with it and that the declaration wag made in furtherance of and during the pendency of the- alleged conspiracy. Glasser v. United States (1942) 315 US. 60, 75; Carbo v. United States (9th Cir. 1963) 314 _ F.2¢718, 735, cert. denied 377 U.S. 953. : In the instant case, the trial court used the generally . accepted procedure of permitting the Government to — introduce ,and the jury to hear extra-judicial statements of alleged co-conspirators prior to the Governmént’s-es=~ tablishing, primta facie, that a conspiracy existed and that an accused was connected therewith. In the instant Sod on ” , . 2 pe Ron gan east anene = Bsofoes tina NE eb? wht HED se RE A the OS neh RANT Gi PEO eS ge Mn = = 1, —21— case, the trial court admonised the jury that is should ‘not consider the -extra-judicial statements of alleged co- -conspira‘ors unless it first found a conspiracy and that . defendant was connected therewith, and further that _~ “the statements were made in furtherance of and during the course of the conspiracy. | i 4 The Ninth Circuit Court of Appeals in affirming Pe: - titioner’s judgment of conviction-upheld the procedure utilized by the trial court and simply stated: “Objection is madé that when certain statements of co-conspirators were admitted in evidence the conspiracy hadn’t been proved. In this case we find this to be only a question of order of proof . within the trial court’s discretion.” Petitioner respectfully argues that his: objection to. . the. procedure utilized by the trial court relates not merely to‘ “the “order of proof” ‘but is a much more fundamental objection: ‘j.e:, Petitioner urges. that the procedure utilized by the Trial Court and upheld by the Ninth Circuit Court of Appeals, violated Petition-. er’s right. to Due Process under the Fifth. Amendment to the United States Constitution. In the procedure utilized by the trial court in the instant case, the jury was instructed to totally disregard ¢ ‘the extra-judicial statements of Co-conspirators which jt had heard until it had first determined from. independ- ; ' ent evidence that a conspiracy in fact existed, and that the defendant was connected with it. This is a strikingly similar situation to that which existed with respect to the voluntariness of a confession prior tothe case-of . Jackson v. Denno (1964) 378 U.S. 368. Prior to ‘Jackson v. Denno.a jury was permitted to hear an out of court confession ofa defendant prior to any de- poe, |, oe termination by the trial court that the said’ out of court ; confession was not coerced. The jury was then instruct- ed, that,. after having heard the confession, it should not consider the confession until it had first determined _ that the confession had been voluntarjly made. In re-’ jecting this rationale in Jackson. Vv. Denno, supra, this —- Court stated: “é . Due process of law requires that a coerced - confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged in by the Courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion ° as to the truth or falsity of it... And the rule - Of exclusion ought not to be emasculated by admit- ting. the evidence Land giving to the jury an in- struction which as every. judge and lawyer knows, cannot be obeyed.. (Cite Omitted )’.” (Emphasis added.) Jackson v. Denno, ee, footnote 10 at - pp. 382-383. That such. a limiting instruction as-is now currently given in a conspiracy case is totally ineffective when given to a jury of laymen, is further borne out ‘by: the © decision of this Honorable Court in Bruton v. United . States (1968) 391 U.S. 123. With respect to the in- effectiveness of limiting instructions to juries, that case stated: 7 | | “The fact-of the matter is that too often such admonition against misuse is intrinsically ineffec-. tive.in that the effect of such a non-admissible dec- laration cannot-be wiped from the brains of the jurors. The admonition, therefore, becomes a futile + oe -— pt ie collocation of words,and fails of its purpose as a . legal protection to:#efendants against whom such. a declaration Should not tell. (Citing from the dissent in the Della Paoli case, which dissent was ‘adopted by the majority in the Bruton case.) The Government should not. have the windfall of . _-having the jury be influenced by evidence against _-the defendant which, as a matter of law, they should not consider but which they cannot put, out of their - minds (Citation omitted). To the. same effect and also cited-in the Jackson note, | ? is the statement of Mr. Justice Jackson in his con- : curring opinion in Krulewitch v. United .States, 336 U.S. 440, 453, 93 L.Ed. 790, 799, 69 S.Ct. 716: ‘The. naive assumption. that prejudicial effects can.be overcome by instructions to the jury... all ape lawyers know to be ae iis Pies Emphasis added.) Therefore with respect to the present procedures employed in conspiracy prosecutions, we have a situ- ation in which the jury is permitted to hear the. extra- judicial statements of alleged co-conspirators and then it is told to. disregard these very same statements ‘until | it has first determined from independent evidence that a conspiracy, in fact, existed. Clearly this is asking . the jury. to do what this Honorable Court found it ‘could not do in the cases of Jackson v: Denno, supra and Bruton v. United States, supra. - Therefore, Petitioner urges that this Honorable Court. review the entire procedure with respect to conspiracy trials, and make a determination that Due Process is violated when the Government is permitted to introduce extra-judicial statements of © alleged co-conspirators BEA, eS prior to the establishment prima facie of the existence of a conspiracy from independent evidence. Petitioner respectfully urges therefore that with respect. tosconspir- “acy prosecutions, gis Court adopt a procedure simi- lar to that employed under its decision in Jackson vy. Denno, supra with respect to coerced confessions, i.e., that the trial court in camera hold a hearing out of the presence of the’ jury in which the Government. will - submit the independent evidence which it has to prove the existence of a. conspiracy and that the trial court will make a preliminary determination that there is suf- ficient independent evidence of the conspiracy to per- mit the ~ Jury to hear any extra-judicial statements of alleged co- ae ae ey . The Failure of the Trial Court to Order the Gov- ernment to Produce the Minutes of the Prior Grand Jury Testimony of the Witness Jerry Mil- lican, After Repeated Requests by the Defense That Said Minutes Be Produced, Violated the Jencks Act, 18 U.S.C. 3500, and Constituted Re- versible Error. ee a By. the October iD; 1970 Aimendment to the Jencks Act, 18 U.S.C. $3500, Congress specifically added to its definition of the term ‘ statement”, (3) a statement,’ however taken or recorded. or:a .transcription thereof, if any, made by said witness to a grand jury” (emphasis added); thus superseding case law which ‘had. held that - grand jury testimony was not within the scope of the Jencks Act: Pittsburgh Plate Glass Co._y. , United States (1959) 360 USS. 395. | A current reading of the Jencks Act. therefore would |’ require that in -a criminal prosecution, once a witness — by the United States has testified on direct exam- . ) ‘ Le a, ination, “. . . the court shall, on motion of the de- fendant, order the United. States" or produce any state- ment (as hereinafter defined ) of the witness in the pos- session of the United States which relates to the subject matter as ta which the witness has testified.” (Em- phasis added.) When the United States fails to make such a “statement” available to the defense as .re- quired by the Jencks Act, then “the court shall strike from the record the testimony of the witness, and the trial shall proceed. unless the court in its discreetion | shall determine that the interests of justice require that a mistrial be declared.” (Emphasis added.) In the instant case, Jerry Millican - was “called as one of the three key Government witnesses against '- Petitioner. After Mr. Millican’s direct testimony, de- fense. counsel requested a copy of the minutes of prior Grand Jury testimony of Mr. Millican in Nashville in 1969 (the Grand Jury testimony of Millican in Cali- fornia was made available). to defense counsel which was related to the same facts and events as his direct ” testimony at Petitioner’s trial. _Millican admitted that at the time of his testimony at Petitioner’s trial as to these facts and events at the Nashville Grand Jury that his recollection and mem- ory of these’ facts and.events was much better than at the present time because his testimony in Nashville took place i in March, 1969. | The witness also stated that he was interviewed by F.B.I. agents: members of the. Justice Department and U.S. attorneys from other parts of the country as to details of this case, None ofthese statements were. ever produced by the: Government for the defense nor was. any reason ever given by the Government for this fail- ure to so produce them. — - - ; X Pn ae At- Petitioner's. trial,, the prosecutor admitted - that several weeks before the trial, he noticed Mr. Millican’s reference to the Nashville Grand Jury testimony and called people in the Department of Justice, in particu- lar, one Mike Epstein who was familiar with the miat- ter; that he asked Mr. Epstein f6r the transcript of the Grand Jury; that he had further communications with Mr. Epstein since that time and that he had “the latest one today”. The Government stated that a Grand Jury transcript of the Nashville testimony had been prepared, and sent to Washington but that the file was missing’ with the transcript. The Government then Stated that an effort “is being made” to see if the Court Reporter ~ could be located. Defense counsel then pointed out that “we have an absolute right to: this” and that effor's should have been’ made long ago (after the California Grand Jury hearing) to get this material and he then requested that the material- should be -submitted to the Court in camera for a determination. - 4 The Court then stated that it was not going to delay ‘ the trial for this purpose and that “they have made every search”. However, the Government explanation as to the un- availability of the Nashville Grand Jury transcript at the tinte of trial. i.e., Justice Depariment lost file, ete., is totally inadequate. It must be remembered that the . ‘Los Angeles Grand: Jury indictment against Petitioner. was returned in September of 1970’ and that his trial: did not begin until January 5, 1971. It is hard to un- derstand the difficulty-in obtaining a Grand Jury tran- script for over 4 months. Furthermore. a re-transcrip- ~ tion a have and should have been ordered in / oy Se time for trial so that it could havé been properly utilized _ by the defense. In this connection it must be noted that a re- -transcription was ultimately ordered. and received ° by the Government, not unfortunately in time for Peti- tioner’s trial (where it could have been utilized by. the defense), but fortuitously enough, in time to be utilized by the Government in opposition to Petitioner’s Motions for New Trial and/or Judgment of Acquittal. - Furthermore, there were several major inconsistencies in the testimony which Millican gave before the Nashville Grand Jury as opposed to his testimony at Petiioner’s trial. In his Nashville Grand J ury testimony, Millican stated, “Of course, I took the stock and put it in my briefcase, but I never tried to do anything ‘with it. I took it back to him.” The foregoing was in. direct contrast to Millican’s testimony at Petitioner’s trial where Millican testified ‘that he simply left the © meeting at the Palmer House because he had a dinner engagement, with no mention of this taking the stocks. In his Nashville Grand Jury testimony, Millican also stated that “J am certain that some of the stock is now in the portfolio of the State Fire and Casualty of Miami . [| am certain that Mr- Dobson has 3 this stock into the portfolio of that corporation . . * (Emphasis added.) That testimony was confrary not pay to the testimony Millican. gave at trial, but also to the testi- mony. of Benjamin. Dobson. At this point it must be emphasized that Millican and Dobson were two of the three key Government witnesses against Petitioner Smith (the other being George Henry). \ The tact that Millican’s Grand har les: ainsi varied substantially from his trial testimony would have en- abled the defense, had the Government made the Nash- LOE ESLER EID a, ville Grand Jury testimony available to: the defense, to impeach not only Millican but also Dobson. Milli- can’s Nashville Grand Jury testimony therefore would have been extremely valuable:to the defense. In this: - connection the language found in the casé of United States v. Meisch, 370 F.2d: 768, 772 (3d Cir. 1966) _is applicable to the instant case. “The fact that Szpak’s testimony: was ‘more re- vealing than the case report is not a valid reason for refusing to permit the defense, to see it. This is not the test under the statute. The purpose of - requiring the delivery to a defendant of a_ prier statement ‘which relates to the subject matter as to which a witness has testified’ is ‘not ‘solely to provide him a means of obtaining. information divulged by the witness’s testimony, but to give him an opportunity to use it as he deems fit for. trial purposes. ‘|W |hether the statements may be useful purposes of impeachment is a_ decision which rests, of course, with the defendant him- self.” Scales v. United States, 367 U.S. 203, 258, 81 S.Ct.. 1469, 1501, 6 L.Ed.2d 782 (1961). (Emphasis addeé& ) cen _ Since Millican and Dobson were two of the three key and only Government witnesses against Petitioner Smith. (the other being George Henry) the possibility of impeaching either or both of them undoubtedly ~would have affected the outcome of the trial. Further- _ more, as was stated in United States v. Missler, 414° F.2d .... (4th Cir. 1969): | | “The requirements of the Jencks Act are in- tended. to provide defendants in federal prosecu- tions with an opportunity for thorough cross- / @ A EEE DD eas SC nar atin ee examination of government witnesses, making the constitutionally guaranteed right of confronta- tion more meaningful. Violations of the statute are necessarily attended: by the danger: that this precious right will be impaired. For this reason, and also because it is ordinarily diffic ult “upon review of a cold record to ascertain the value to the defense of a statement withheld, violation of the Act is excused only in extraordinary cir-- cumstances, See Killian v. United States, 368 U.S. . 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961): Rosenberg vy. United States, 360 US. 367, 79 -§.Ct. 1231, 3 L-Ed.2d 1304 (1959). Unless. it is perfectly clear that the defense was not prejudiced by the omission, reversal is indicated.” (Emphasis added.) Jd. at PP. 303-304. In the instant case, it most surely cannot be said’ that “it is perfectly ‘clear that the defense Was not prejudiced by the omission” of the Government to sup- ply Millican’s Grand Jury testimony; hence a “reversal ~ is indicated.” - The failure of the Trial Court to pre the Gov- ernment to produce’ this prior testimony of Mr. Milli- can, or-in the alternative, the failure of the Trial Court to strike the testimony of Mr, Millican from the record. or in the alternative, the failure of the court to de- clare -a mistrial at that point was, in and of itself, such prejudicial error. as.to Tequire reversal of Petitioner's judgment of conviction. In spite of extensive briefing on this very point. the Ninth Circuit Court of Appeals in- its.decision below (see Appendix A, infra p..1) did not even discuss —30—. ko. this issue, but dismissed Petitioner's ee Wigbmen re violation of the Jencks Act, 18 U:S.C. $ 3500, ‘ge the phrase “Other points raised we find ee ig’ Petitigner believes that this ‘point is” “substantial enough to warrant consideration by this | Honorable Court and therefore prays that this Honofable * Court » will grant this Petition and review what was most clearly a violation of the express intention of Congress, ie., that prior Grand Jury testimony. of. a’ witness- called-by the Government in a criminal prosecution be- made available to the defense for impeaci.ment pur- poses. - 8 3. Prosecutor alleged that Benjamin Dodson testi- fied Tucker told him, “I Filed: March 1, 197k. Emory G. Hatchier, Clerk. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1492%3A1. Public record. Not legal advice.