Petition for Writ of Certiorari — Young v. United States

JAN §

IN THE MICHAEL RODAK, JR.,

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No.

72-989

JOHN H. YOUNG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Appellee.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOWARD E. BECKLER

6922 Hollywood Blvd.

Suite 201

Hollywood, Ca. 90028

(213) 465-1191 465-7131

Attorney for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No.

JOHN H. YOUNG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Appellee.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOWARD E. BECKLER

6922 Hollywood Blvd.

Suite 201

Hollywood, Ca. 90028

(213) 465-1191 465-7131

Attorney for Petitioner

Kee A Gh RMA RISA YN ORR ELH RE LORE REISER PRE ROI EDI

TOPICAL INDEX

Table of Authorities

OPINION BELOW

JURISDICTION

REASONS FOR HEARING

STATEMENT OF CASE

PROCEDURAL BACKGROUND

SUBSTANTIVE FACTS

QUESTIONS RAISED

DISCUSSION

APPLICATION 25 ot

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TABLE OF AUTHORITIES

Cases

Argersinger v. Hamlin,

407 U.S. 25,

92 S. Ct. 2006 (1972) 3,14

Douglas v. California,

372 U.S. 353,

83 S. Ct. 814,

9 L.Ed.2d 811 (1963) ld

Gideon v. Wainwright,

372.U.S. 335,

83 S. Ct. 792,

9 L.Ed.2d 799 3, 14

Gilbert v. California,

388 U.S. 263,

S75 @&. C&. I93i,

18 L.Ed.2da 1178 (1967) 13

McGill v. United States,

348 F.2d 791

(C.A.D.C. 1965) 18, 19

Miranda v. Arizona,

384 U.S. 436,

86 S. Ct. 1602,

16 L.Ed.2d 694 (1966) 13

Powell v. Alabama,

287 U.S. 45,

53 8. Ce. 35,

77 L.Ed. 158 (1932) 3, 14, 20

Rosenzweig v. United States,

412 F.2d 844 (1969) 15

ii

Cases

United States v. Grow,

394 F.2d 182

(4th Cir. 1968)

United States v. Wade,

388 U.S. 218,

87 S. Ct. 1926,

18 L.Ed.2d 1149 (1967)

Williams v. Florida,

399 U.S. 78,

90 S. Ct. 1893,

26 L.Ed.2d 446 (1970) 2, 15, 16

Codes

21 U.S.C. §841(a) (1)

21 U.S.C. &846

21 U.8.C. $952

21 U.S.C. §960

21 U.S.C. §963

28 U.S.C. §1254(1)

Constitution

United States Constitution:

Sixth Amendment 3, 14, 15

Rules

United States Supreme Court Rules:

Rule 22 (2)

19

13

, 22

ne ua ua wu wu Uw

, 24

LOE a ES dep AO LN VIR OLGA IEE se SEES [EPA a A ee WS

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No.

JOHN H. YOUNG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Appellee,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINION BELOW

Petitioner, John H. Young, hereby

applies for a writ of certiorari directed

to the United States Court of Appeals for

the Ninth Circuit to review the judgment

rendered by said court in the above

l.

entitled cause. The opinion of the Cour

of Appeals herein is appended hereto ang

designated as Appendix "A" to this petitio,

JURISDICTION

The judgment of the Court of Appeals

in the instant matter was entered December

6, 1972. A petition for rehearing was not

filed by petitioner herein. The jurisdic-

tion of this Honorable Court is invoked

pursuant to the provisions of Title 28,

United States Code, §1254(1). Compliance

with the time limitations of Rule 22(2),

United States Supreme Court Rules, has bee

had.

REASONS FOR HEARING

A hearing is respectfully requested in

the instant case for the following reasons:

1. The decision of the Court of

Appeals below is contrary to the rationale

and nature of the holding of this Court in

the case of Williams v. Florida, 399 U.S.

78, 90 S. Ct. 1893, 26 L.Ed.2d 446 (1970),

2.

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and a decision by this Court is thus needed

herein to reconcile said cases.

2. The decision of the Court of

Appeals below serves to deprive petitioner

of the effective representation of trial

counsel contrary to the mandate of this

Court in those cases decided under the

sixth Amendment to the United States Con-

stitution commencing with Powell v. Alabama,

287 U.S. 45, 53 S. Ct. 55, 77 L.Ed. 158

(1932), including Gideon v. Wainwright, 372

u.S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799

(1963), and culminating in Argersinger v.

Hamlin, 407 U.S. 25, 92 S. Ct. 2006 (1972),

and a decision by this Court is thus needed

herein to accord petitioner the protection

of said cases.

3. The decision of the Court of

Appeals below ignores the need of trial

preparation by the defense in a criminal

action and permits the government to seek

to prevail by eleventh-hour revelation of

theretofore concealed witnesses and evi-

dence without reasonable continuance allowed

the defense to meet the same, and a deci-

sion by this Court is thus needed herein to

establish the fundamental unfairness of

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such proceeding in the present cause ani ;,

similar actions that may arise in the

future.

4. A decision by this Court is need

herein to determine standards of trial pr.

cedure basically fair to both the goverp-

ment and the accused in a criminal action

and to prevent arbitrary consideration

given to the reasonable needs of each in

cases hereafter to be brought to trial.

STATEMENT OF CASE

The present case concerns charges of

narcotics smuggling and activities related

thereto. Critical to an understanding of

the issues herein raised is an account of

the procedural background and substantive

facts of the case. The same are accordin-

ly summarized following.

PROCEDURAL BACKGROUND

A four count indictment was filed June

2, 1971 in the United States District Court

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for the Southern District of California

jointly charging petitioner John H. Young

and co-defendants Grady Roger McLeod,

Edward f. Barnett, Avell C. Williams, and

Kenneth Jefferson in count one with con-

spiracy to illegally import hereoin and

cocaine into the United States in violation

of Title 21, United States Code, §§952,

960 and 963; in count two with the unlawful

importation into the United States of such

narcotics in violation of the same code

provisions; in count three with conspiracy

to illegally possess heroin and cocaine

with intent to distribute the same in viola-

tion of Title 21, United States Code, §§

841(a) (1) and 846; and in count four with

the unlawful possession of such narcotics

with intent to distribute the same in

violation of the same code provisions; each

offense, allegedly occurring on or about

. May 22, 1971 (C.T. pp. 1-5).

Petitioner was arraigned on the above

charges June 10, 1971, and an omnibus hear-

ing was set for him on June 17, 1971. At

such hearing, inter alia, petitioner's

e motion for discovery of the names and state-

rt ments of the government's witnesses was

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granted. The matter was then transferreg

to a trial department wherein on July 6,

1971 petitioner (and each co-defendant)

entered a plea of not guilty to all Charges

in the indictment, and the case was there-

upon continued for hearing of defense

motions and for further proceedings (C,1,

pp. 8, 14-18, 19, 26).

Motions by petitioner and the severa]

co-defendants to suppress evidence, to

sever the trial of the case, to strike tw

counts of the indictment, for a bill of

particulars, and for discovery of evidence,

including the names and statements of

government witnesses as previously orderei

at the omnibus hearing, were thereafter

made and the same opposed by the govern-

ment (C.T. pp. 27-29). Respecting said

motions, the same were on October 5, 1971

each denied except for the motion for a

bill of particulars, which the government

complied with by furnishing the parties

with the report of the Los Angeles Police

Department concerning the case (C.T. pp.

80-87). In particular, the motion to cor

pel witness disclosure as ordered at the

omnibus hearing was denied (R.T. p. 199).

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frial of the action against petitioner and

the co-defendants was then calendared for

November 16, 1971 (C.T. pp. 80-80 L).

On November 15, 1971 petitioner moved

for a continuance of his trial on the

ground that he had become able to retain

private counsel and wished to substitute

such privately retained and chosen counsel,

who was not then able to proceed to trial

on the calendared date, for his court

appointed counsel who had theretofore repre-

sented him. This motion was denied by the

trial court which insisted that the trial

of the case as to all parties proceed as

scheduled on November 16, 1971 (C.T. p. 90;

R.T. pp. 202-210). Likewise denied on such

date was a renewal of the motion for dis-

closure of government witnesses in accord-

ance with the omnibus hearing order made

earlier in the case (R.T. pp. 210-211).

On November 16, 1971 the case was

called for trial, at which time it was

first revealed by the government that it

intended to call as a prosecution witness

Kenneth Jefferson, one of the indicted co-

defendants, whose case was thereupon

severed from that of petitioner and the

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remaining co-defendants for purposes of

trial. Notwithstandihg such development,

proceedings as to the remaining parties,

including petitioner, were ordered to co-

mence immediately, 4Mq jury selection ip

the matter thereupon Was had (R.T. pp. 220.

222). A jury trial @Nsyed and concluded

November 18, 1971 with verdicts of guilty

returned by the jury 4gainst petitioner

and the remaining CO-Gefendants as to each

count charged in the indictment (C.T. pp.

108-110, 134-136)- Pkoceedings respecting

motions for new trial were noticed by the

parties (C.T. pp- 137-159, 160-165), and

said motions thereafter denied by the

trial court (R-T- PP- 524-526). Judgment

was then, on December 20, 1971, imposed

on petitioner, and he was sentenced to

prison for a term Of eight (8) years as to

each of the counts OM which he was con-

victed, said terms being ordered to run

concurrently (C.T- P- 166).

A notice of appe@) was timely filed m

petitioner's behalf (c.7. p. 169). Bail

on appeal was set by the trial court and

posted by petitioner (c.T. p. 187), who is

presently at liberty on such bail pending

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getermination of the within matter. The

appeal was, as heretofore noted, determined

adversely to petitioner who now seeks a

hearing before this Court for the reasons

hereinabove presented.

?

SUBSTANTIVE FACTS

The facts of the case at bar fall into

two categories: those witnessed and testi-

fied to by law enforcement officers, and

those elicited in the testimony of Kenneth

Jefferson, the co-defendant whose trial was

severed on the date of trial and who

appeared as a government witness against

the remaining parties. The combined testi-

mony of the officers and Jefferson amply

supports petitioner's conviction, and no

contention is made herein regarding the

sufficiency of such evidence to support

the judgment. Conversely, however, the

singular testimony of the officers is

totally circumstantial on the issue of

petitioner's guilt of the charged offenses

and absent the corroborative support of

Jefferson's testimony does not unequivocally

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;

:

'

establish such guilt. The importance of

Jefferson to the government's case is thy,

manifest, and equally manifest therefor,

was the need of the defense to prepare

adequately for such testimony and not to

be taken by surprise respecting it.

The testimony of the officers reflecte;

that on May 2, 1971, in connection with a

narcotic investigation, they observed

Jefferson, Edward Barnett, and petitioner

drive in two vehicles to the home of Ave]]

Williams in Los Angeles where they were

met by Williams, and Grady McLeod, the

latter arriving in another vehicle; that

in Williams' driveway they observed these

men working with a power tool inside the

left front door of Jefferson's car, appear-

ing to be drilling and cutting in that

area; that at one point petitioner and

Barnett were followed to a store where they

were observed to purchase a saw blade and

then return to Williams' house where they

continued work on Jefferson's car; that

afterward the several men were seen to

leave the location and later the same day

Jefferson and Barnett to drive in the

former's vehicle to Tijuana, Mexico; that

10.

custom's officers were then alerted to the

situation and such officers stopped and

searched Jefferson's car when it re-entered

the United States at the border; and that a

compartment cut into the floor on the left

front side of the vehicle was then discov-

ered containing concealed packages of

heroin and cocaine of substantial street

value, which the officers seized. All

parties were thereupon arrested (Jefferson

and Barnett at the border, and Williams,

McLeod and petitioner in Los Angeles), and

in the trunk of petitioner's automobile,

an electric drill and cutting wheel were

found and: seized as evidence (R.T. pp- 312-

333, 380-388, 429-432, 436-440, 449-450,

475-481) .

Kenneth Jefferson, called as a witness

by the government, testified that on May

21, 1971 he was offered two hundred dollars

by petitioner and McLeod for the use of his

car to go to Mexico for the purpose of try-

ing to obtain heroin and cocaine; that to

accomplish this he allowed them, together

with Barnett, to work on his car at Williams’

house, and to cut a concealed compartment

in the floor of the vehicle; that later

a.

that day he drove in his car with Barnet;

and a girlfriend to Tijuana, Mexico where

Barnett contacted some people and obtaine;

several packages; and that on re-entering

the United States at the border his car

was stopped and searched and the packages

mentioned seized by custom's officers

after being found by them in the concealed

compartment (R.T. pp- 229-250, 271-272,

279-284, 286-288, 306-307).

The foregoing, in substance, together

with the physical evidence received, thus

constituted the government's case against

petitioner.

QUESTION RAISED

A single but critical question is pre-

sented in the instant case which concerns

two correlative areas of the law. These

areas are the right of an accused to effec

tive representation of counsel in a crin-

inal action and the claim of the government

to avoid revealing the identity of its

witnesses prior to trial. The specific

question here involved is whether the

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determination of the conflict created by

these competing interests in the courts

below denied petitioner a fair trial.

yally important to the administration of

Eq

justice, however, is a resolution of this

conflict by this Court in a manner that

will avoid future uncertainty and conflict

on this subject which otherwise will pre-

eR Le

sent continuing problems to the courts and

litigants in criminal trials.

SEMANA Tita NMG ES TEE SSRN ASE AR

DISCUSSION

The importance of counsel to an accused

in a criminal case is now fully recognized

and firmly established. Indeed, counsel is

required (or its waiver must be shown) at

DA LOS: Y LEAF EL OPES

seete SeeL Es

POTS

all stages of the prosecution, including

police custodial interrogation, Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16

L.Ed.2d 694 (1966) and police conducted :

lineups, United States v. Wade, 388 U.S.

218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (1967) ;

Gilbert v. California, 388 U.S. 263, 87

S. Ct. 1951, 18 L.Ed.2d 1178 (1967). The

need of counsel at trial, for everyone

charged with a serious offense, is amply

‘ 13.

Dio Megara RRS,

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expressed in Gideon v. Wainwright, 372 4,5,

335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963),

and on appeal in Douglas v. California, WP

U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 81]

(1963), and to compel a defendant to pro-

ceed without counsel is unquestionably

reversible error. See, too, in this regarj

Argersinger v. Hamlin, 407 U.S. 25, 92

S. Ct. 2006 (1972).

However, the right to counsel under the

Sixth Amendment means more than merely hay-

ing a lawyer appear with the accused during

his various proceedings. This Court early

recognized that the right of counsel meant

effective counsel and that this in turn

meant counsel who had opportunity to inves-

tigate the case and prepare a defense.

Powell v. Alabama, 287 U.S. 45, 53S. Ct.

55, 77 L.Ed. 158 (1932). Pro forma repre-

sentation fails adequately to satisfy the

Constitution and has forcefully been repu-

diated by this Court.

But can it be said that an attorney can

effectively prepare a defense and provide

more than mere pro forma representation who

is deliberately denied access to the evi-

dence intended to be elicited by the

14.

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government? If an attorney is refused all

information respecting the extent of the

prosecution case, of what value is his

representation to the accused? An attorney

simply cannot be kept in the dark before

trial respecting the prosecution evidence

and be expected to provide effective repre-

sentation for his client during trial.

The entire meaning of the Sixth Amendment

right to counsel becomes vitiated in such

circumstance and the disadvantage to the

accused becomes manifest.

yet, the government contends that it

may summarily refuse to disclose the

identity of its witnesses, and this posi-

tion has been affirmed by the Ninth Circuit

Court of Appeals, Rosenzweig v. United

States, 412 F.2d 844 (1969). This view,

however, conflicts with the basic need of

a defendant in a criminal case to prepare

his defense and precludes effective repre-

sentation by counsel cognizant of the

evidence and issues. Moreover, it is a

view in direct conflict with this Court's

determination in the case of Williams v.

Florida, 399 U.S. 78, 90 S. Ct. 1893, 26

L.Ed.2a 446 (1970) where consideration was

15.

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given to the subject of a state alibi

statute. In Williams this Court express;

itself thusly:

"The adversary system of trial is

hardly an end in itself; it is

not yet a poker game in which

players enjoy an absolute right

always to conceal their cards

until piayed. We find ample room

in that system. . . [for a rule]

which is designed to enhance the

search for truth in the criminal

trial by insuring both the defen-

dant and the state ample opportunity

to investigate certain facts crucial

to the determination of guilt or

innocence."

399 U.S. at p. 82,

90 S. Ct. at p. 1896.

The government, however, would deny

this right of investigation where its wit-

nesses are concerned and would thereby

prevent defense counsel the opportunity for

adequate and effective defense preparation.

Concededly there may be times where svffi-

cient reason for witness concealment may

exist, but absent a showing in this regard

16.

PREY aminn TOM C1 Oce 1

nothing commends the government's playing

its cards close to its vest and treating a

criminal trial as a poker game. Further-

more, in the instant case there was even a

misleading of the defense by the government,

for in response to the motion for a bill of

particulars by the defendants, the govern-

ment proferred the police report respecting

the case, thus leading the defense to

believe the prosecution was to be circum-

stantially based when in fact, through use

of the testimony of a co-indictee, the

principal inculpatory evidence was of a

direct character.

Manifestly, then, the nature of the

defense preparation in the case at bar,

geared initially to 4 circumstantial evi-

dence prosecution, was totally deficient to

confront the direct inculpation by an accom-

plice. The addition of the accomplice to ’

the prosecution armory of evidence altered

not only the character of the government's

case but as well that of any intended

defense. No longer could an effective

defense on petitioner's behalf be predicated

on arguing the inadequacy of the officers’

observations to support a verdict of his

17.

oc WwW COoCNTER

knowing participation in a narcotics Smugc-

ling operation because he assisted in

certain alteration work on a car, which

could well have served various alternatiy,

purposes. Rather, on sudden notice on tip

very day of trial, petitioner's defense hy

to be oriented to impeaching the accon-

plice's credibility, a matter which c

ly, with adequate time and preparation,

would have borne fruitful exploration. By

taken by surprise on such a critical matter,

petitioner's defense was severely handi-

capped in this respect, and this notwith-

standing the questionable veracity of the

accomplice who, of course, hoped to gain

much on his own behalf as a government

witness (R.T. pp. 261-262, 276). In such

a circumstance it cannot be seriously con-

tended that petitioner's counsel was able

to provide him effective representation

within the mandate of this Court's decisis

Petitioner sought the day prior to trid

to substitute privately retained counsel

for his previous court appointed counsel.

This, of court, is not a disparagement of

appointed counsel, for as the court in

McGill v. United States, 348 F.2d 791

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(C.A-D.C- 1965) ’ observed:

"We presume that in ordinary cir-

cumstances an accused who finds

that funds have become available

may, for reasons sufficient unto

him, conclude that he prefers to

have his own paid counsel, without

necessarily claiming that appointed

counsel is inadequate."

348 F.2d at p. 795.

Nor, it is acknowledged, was the trial

court's then denial of a continuance to

effectuate such substitution error under

the circumstances, for it is recognized

that a defendant's exercise of his right

to private counsel may not be permitted to

delay trial of his action or otherwise dis-

rupt the orderly process of the court.

McGill v. United States, supra; United

States v. Grow, 394 F.2d 182 (4th Cir.

1968) .

However, when on the day of trial the

government unleashed its sudden surprise of

a witness completely unanticipated by the

defense, which the very day before it again

avoided revealing, and which changed

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entirely the completion of the case, no

undue delay or disruption in the process

of the court would have been occasioned by

a continuance to allow defense counse]

reasonable time for preparation concerning

t’ s new development. Indeed, a reasonab),

continuance under these circumstances wou);

appear requisite to counsel providing cop-

stitutionally adequate and effective repre.

sentation, whether such counsel was pre-

viously court appointed or privately

retained and substituted, for the important

consideration in such a situation is, and

must be, the fairness of the trial and not

merely its timeliness. In this connection,

the language of this Court in Powell v.

Alabama, supra, bears repeating:

"It is true that great and inex-

cusable delay in the enforcement

of our criminal law is one of the

great evils of our time. Continu-

ances are frequently granted for

unnecessarily long periods of time,

and delays incident to the disposi-

tion of motions for new trial and

hearings upon appeal have come in

many cases to be a distinct reproach

20.

nt

to the administration of justice.

The prompt disposition of criminal

cases is to be commended and

encouraged. But in reaching that

result a defendant, charged with

a serious crime, must not be

stripped of his right to have

sufficient time to advise with

counsel and prepare his defense.

To do that is not to proceed

promptly in the calm spirit of

regulated justice but to go forward

with the haste of the mob."

287 U.S. at p. 59.

The instant case, of course, differs

significantly from the Scottsboro cases in

many regards, but underlying both is a

common concept that effective representa-

tion cannot be separated from adequate time

for investigation and preparation. This

is not to suggest that a defendant is

entitled to a trial continuance each time

he is surprised by the government's pre-

sentation of evidence. But where the

government deliberately withholds vital

information respecting its principal wit-

ness whose testimony will change the entire

21.

TGA ET ES SH

character of the case and critically affect

the defense, and where the defense has

diligently sought pricr to trial to-obtai,

this information, then que regard for jus-

tice requires an apprCpriate trial contin.

uance so that the defendant will "have

sufficient time to advise with counsel",

a guarantee of trial fairness which other-

wise would be rendereq nugatory.

In Williams v. Florida, supra, this

Court remarked:

"Given the ease With which an

alibi can be fabricated, the

State's interest in protecting

itself against an eleventh-hour -

defense is both Obvious and

legitimate.”

399 U.S. at Pp, 81;

90 S. Ct. at 5. 1896.

Does it not equally f5lliow that:

"Given the ease With which a

charge can be fabricated, the

defendant's interest in protect-

ing himself against an eleventh-

hour claim is both obvious and

legitimate."

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Must not, therefore, similar conclusions

be drawn and like results obtain in each

such situation? Can the government be per-

mitted to conceal its case to the day of

trial and then spring it on an unsuspecting

defendant, whose counsel, through no fault

of his own, is unprepared to meet sucii

case? Can it be maintained that such pro-

ceeding results in a fair trial? To deny

a reasonable trial continuance in this

instance, it is submitted, would not con-

stitute "proceeding promptly in the calm

spirit of regulated justice". Rather, in

such a Situation, a legitimate need for

further trial preparation arises, and a

defendant should not be compelled to pro-

ceed to trial in the absence of such

preparation. Otherwise the effectiveness

of his counsel becomes seriously impeded

and reduced even to a pro forma representa-

tion. To ignore this reality of the prac-

tice of law serves to render the trial

itself unfair and constitutes fundamental

error in the premises.

This very result, it is urged, tran-

spired in the case at bar. It appears

evident that the government here recognized

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weaknesses in its evidence against petj-

tioner and the other parties who were not

arrested at the border and accordingly

sought to buttress their prosecution by

use of the co-indictee Jefferson's testi.

mony against them. That this accomplice

was a less than reliable person can hardly

be denied; and it is clear why the gover.

ment would persist in refusing to make a

pretrial disclosure of its witnesses to

the defense since to do so would allow

opportunity to prepare for the evidence

thus to be adduced. But as this Court has

stated, the trial of a criminal action is

not a poker game. The prosecution should

never be afraid of penetrating cross-

examination of its witnesses in a search

for the truth and should not seek to deny

defendants the opportunity of adequate

preparation in this regard. Such denial

does not comport with constitutional man-

dates of due process of law generally and

particularly is violative of the right. to

effective representation by counsel under

the Sixth Amendment. A trial so held must

not be sustained, and a resultant convic-

tion must be reversed. Equally important

in this regard, standards of trial

24.

procedure for the future now require estab-

lishment so recurrence of the instant

situation does not become the standard

practice in the prosecution of criminal

cases. For this reason, therefore, and to

redress the error occasioned in the pro-

ceedings below, a hearing should be granted

herein.

APPLICATION

It is respectfully requested, on the

basis of the argument presented and the

authorities hereinabove cited, that the

within petition for writ of certiorari be

granted and the matter set for hearing on

the Honorable Court's docket.

Respectfully submitted,

HOWARD E. BECKLER

Attorney for Petitioner

25.

PAT RES 49, ‘ DARIN INA ATI RS il ae Dik OE oy FL NL) AEE OME —T

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unrrep STATES OF AMERICA, 7 ‘

Plaintiff-Appellee, :

No. 72-1652

Joun H. Youna, k

Defendant-Appellant.

Unrrep STATES OF AMERICA,

Plaintiff-Appellee,

Grapy Rocer McLeop,

Defendant-Appellant.

“Unirep STATES OF AMERICA,

Plaintiff-A ppellee,

2 No. 72-1620

Avett C. WILLIAMS,

Defendant-Appellant.

4

[December 6, 1972]

Appeal from the United States District Court

for the Southern District of California

Before: ELY and TRASK, Circuit Judges, and

TALBOT SMITH, District Judge*

PER CURIAM:

Appellants were tried by a jury and convicted on four coun':

involving conspiracy and smuggling of heroin and cocaine in

*Honorable Talbot Smith, Senior United States District Judge, for

the Eastern District of Michigan, sitting by designation.

cand Pen . ww _—

RESALE NNT NN MRL EE I ERR IR Soars |

2 United States of America vs.

violation of 21 U.S.C. $§841(a)(1), 846, 952, 960 and on. %

affirm.

Appellants MeLcod and Williams contend the evidence wa

insufficient to support the convictions. In viewing the evidence ip

the “stash” compartment in the load car, providing the othen

with an cleetric saw from his own car. Williams claims to hare

been an innocent bystander who permitted his friends to wor

on their car in his driveway. Evidence was presented by th

a finding of guilt

A second point raised by Williams claims error in admitting

telephone records into evidence. Direct proof of his identity a

F.2d 718, 743 (9th Cir, 1963), cert. denied, sub nom.

United States, 377 U.S. 953 (1964).

Appellants claim they should have been provided a list of

government witnesses prior to the day of the trial. The govern

the

nesses. United States v. Glass, 421 F.2d 832 ( .

Rosenzweig v. United States, 412 F.2d 844 (9th Cir. 1969).

Motions for a continuance are within the sound discretion of

the trial judge. United States v. Beaty, No. 71-2852 (9th Cir.

Aug. 11, 1972) (motion for a continuance to substitute counsel);

United States v. Harris, 436 F.2d 775 (9th Cir. 1970) (motion

John H. Young, et al. 3

for 2 continuance to obtain witnesses); United States v. Wheeler,

434 F.2d 1195 (9th Cir. 1970) (motion for a continuance based

on 8 lack of preparation). This court will not disturb the trial

jndgr’s denial of the motion for a continuance without a clear

showing of abuse which does not appear here.

Finally, the challenged uncalled-for statements of the testifying

government agents must be considercd against the context of the

entire trial record.’ Schoepflin v. United States, 391 F.2d 390,

995 (th Cir.), cert. denied 393 U.S. 865 (1968). Under that test

the remarks cannot have had a substantial influence on the jury

verdict in this case. The trial court's denial of motions for mis-

trial was not reversible error.

The judgment is affirmed.

‘Asked what his duties were, Officer Hayes responded, “I investigate

people who are in the business of selling dope.” Officer Tusan, describing

bis surveillance, stated that he verified the residences of the defendants

of

PERN AU-WALSH PRINTING CO., SAN FRaNcIBCO 12-12-72—<480