# Petition for Writ of Certiorari — Young v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1811%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 410 U.S. 967 ## Text 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 é , E € ‘ ee hse iM a Cea 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. COPY BOUND TOO CLOSE 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 Be SE IN CENTER 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 4. COPY BOUND TOO CLOSE t 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 5. SE IN CENTER 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). 6. COPY BOUND TOO CLOSE 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 7. SE iN CENTER 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 8. CSpy BOUND TOO CLOSE 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 9. SE IN CENTER ; : ' 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 12. COPY BOUND TOO CLOSE > 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, SE IN CENTER 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. COPY BOUND TOO CLOSE 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. SE iN CENTER 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 18. eRrov arminn TOO CL Oce (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 19. cfc in CONTE R 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." 22. CCpy BOUND TOO CLOSE lI 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 (> £ IN CENTER 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1811%3A1. Public record. Not legal advice.