Petition for Writ of Certiorari — Butler v. United States
Supreme Court brief1973
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IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1972
No.
ROBERT BUTLER,
Petitioner,
Vv.
UNITED STATES OF AMERICA.
PETITION FOR WRIT
OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Law Offices of
Barry Tarlow
9119 Sunset Boulevard
Los Angeles, California 90069
(213) 278-2111
Attorney for Petitioner
SRI EER OMELET ISG IN Ph TS
TOPICAL INDEX
Page
Table of Authorities iii
OPINION BELOW 1
JURISDICTION 2
QUESTIONS PRESENTED 2
CONSTITUTIONAL PROVISIONS 5
STATEMENT S
a Proceedings Below. 5
2. Jurisdiction. 7
3. Facts. 7
REASONS FOR GRANTING THE WRIT 20
A JUDGMENT OF CONVICTION
MAY NOT BE SUSTAINED WHERE
GOVERNMENT COUNSEL MIS-
REPRESENTS TO A FEDERAL
COURT HIS INTENTIONS TO
DISMISS A CASE IN EXCHANGE
FOR THE "COOPERATION" OF
THE GOVERNMENT'S PRINCIPAL
WITNESS.
c
LS EE Sone ae ee . - . ——
ESS PEDAL RSI FENN ON ETN EI RE PRR NN AE Oy EE AGRE
ASSES OS SUE
THE DECISION OF THE COURT
OF APPEALS SANCTIONS USE
OF FALSE EVIDENCE IN A
FEDERAL COURT ON A RECORD
VIRTUALLY IDENTICAL WITH
THAT OF NAPUE V._ILLINOIS,
360 U.S. 264 (1959). 24
WITHIN THE PRESENT CON-
TEXT THE CONFRONTATION
CLAUSE PRECLUDES THE
ADMISSIBILITY IN A CONSPIRACY
PROSECUTION OF WRITINGS
FOUND IN A GARAGE FOOT-
LOCKER SUBSEQUENT TO THE
ARREST OF AN ALLEGED CON-
SPIRATOR WHO FLED PRIOR TO
TRIAL. 27
WRITINGS FOUND IN A GARAGE
FOOTLOCKER MAY NOT
PROPERLY BE RECEIVED AS
EVIDENCE IN A FEDERAL
COURT WITHOUT PROOF OF
AUTHORSHIP OTHER THAN
THE CIRCUMSTANCES SUR-
ROUNDING THE SEIZURE. 30
CONC LUSION 32
PNR YEAS DREGE RIN ITE
Ac TAR cad Xe kainate a ai
Si
TABLE OF AUTHORITIES
Berger v. United States,
295 U.S. 78 (1935) 20
Blumenthal v. United States,
332 ULS, 539 (1947) )
Burkhalter v. State.
S.W.2d (Tex, Ct, Crim.
App.) 12 Crim. L. Rptr. 2547
(1973) 23
California v. Green.
399 ULS, 149 (1970) 3 33. 39
Communist Party v. Subversive
Activities Control Bd. ,
351 U.S. 1°5 (1956) 14. 20
Dale v. Williams.
327 F.Supp. 38]
(E.D. Pa. 1971) 25
Douglas v. Alabama,
380 U.S, 415 (1965) 28, 29
Dutton v. Evans.
400 U.S. 74 (1970) 3, 28, 29
Favor v. Henderson,
348 F.Supp. 423 (W.D. La, 1972) 22
Fiswick v. United States,
332 U.S. 211 (1946) 17
Giglio v. United States,
405 U.S. 150 (1972) 2, 20, 22
23, 26, 27
Imbler v. Craven,
298 F.Supp. 795 (C.D. Cal. 1969)
aff'd, 424 F.2d 631 (9th Cir. )
cert. denied. 400 U.S. 865 (1970) 25
Jones v. United States,
266 F.2d 924 (D.C. Cir. 1959) 8
Kolod v. United States,
390 U.S. 136 (1969) 14
Kotteakos v. United States,
328 U.S. 750 (1946) Q
Mancusi v. Stubbs,
408 U.S, 204 (1972) 29
Mesarosh v. United States,
352 U.S. 1 (1956) 14, 20, 21
Napue v, [linois,
360 U.S. 264 (1959) a, 26. 33
26, 27
People v. Brown,
49 Cal. 2d 577 (1948) 31
iv.
. aye lle tt aah
People v. Ramsey,
83 Cal. 2d 707,
189 P, 2d 802 (1948) 31
United States v. Harris,
462 F.2d 1033 (10th Cir. 1972) 25
United States v. Hibler,
463 F.2d 455 (9th Cir. 1972) 34
United States v. King,
472 F.2d 1 (9th Cir. 1973) a ae
10, 15, 17, 18
19, 22, 28, 31
United States v. Mele,
462 F.2d 918 (2nd Cir. 1972) 23, 24
United States v. Perisco,
330 F.Supp. 1077 (E.D. N.Y.
1972) 22
United States v. Shotwell Mfg. Co.,
355 U.S. 233 (1957) 14, 16, 21
United States v. Sutton,
426 F.2d 1202
(D.C. Cir. 1969) 31
United States v. Varelli,
407 F.2d 735 (7th Cir. 1969) Q
Rules
Federal Rules of Appellate Procedure,
Rule 4(b) 7
Rule 28 (i) and
Rule 46 4
Constitutions
U.S. Constitution,
Fifth Amendment 5
Sixth Amendment 3. 5. 28
Statutes
18 U.S.C. § 371 6
21 U.S.C. §174 6
21 U.S.C. § 331(q) 6
28 U.S.C. § 1254 (1) 2, 7
28 U.S.C. §§ 1291 and 1294 7
28 U.S.C. § 1732 28
Textbooks
C.. McCormick, Evidence, 552
(2d ed. 1972) 31
Comment, 81 Yale L.J. 703,
712-13 (1972) 8
vi.
REMODEL AIRES EET Eh
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1972
No.
ROBERT BUTLER,
Petitioner,
Vv eo.
UNITED STATES OF AMERICA.
PETITION FOR WRIT
OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
6
Robert Butler respectfully petitions for
a writ of certiorari to review the judgment of
the United States Court of Appeals for the Ninth
Circuit in this case. ‘
OPINION BELOW
The opinion of the court of appeals is
reported as United States v. King, 472 F.2d 1
1.
(9th Cir. 1973). A copy of the opinion is
appended to this petition.
JURISDICTION
The judgment of the court of appeals
was entered on August 24, 1972, and the
opinion was amended upon denial of rehearing
on February 7, 1973. On March 8, 1973,
Mr. Justice Douglas, as circuit justice for
the Ninth Circuit court of appeals entered an
order extending time to file petition for writ
of certiorari to and including April 7, 1973
(no. A-925). The jurisdiction of this Court
is invoked under 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether, according to the
dictates of Giglio v. United States, 405 U.S.
150 (1972), a judgment of conviction must be
reversed because of government counsel's
misrepresentations to a federal trial court
concerning his intentions to dismiss an indict-
ment against a key witness informer, thus
leading the court erroneously to rule the
defense could not argue the indictment against
the informer would be dismissed and thereby
successfully precluding information relevant
to the informer's credibility from reaching
the jury.
B Whether, under Napue v. Illinois,
360 U.S. 264 (1959), a judgment of conviction
must be reversed because th. government
failed to disclose promises made to the
principal witness informer in exchange for
his testimony, failed to correct false testi-
mony that no promises had been made and
thereby prevented the jury from receiving
information relevant to the informer's credi-
bility.
3. Whether, pursuant to Dutton v.
Evans, 400 U.S. 74 (1970), and California v.
Green, 399 U.S. 149 (1970), the Confrontation
Clause of the Sixth Amendment was violated
by the admission of writings, bearing scant
indicia of reliability but contended by the
government to be ledgers of drug transactions,
warrantlessly seized from a garage footlocker
of an alleged conspirator who fled prior to
trial and thus could not make the alleged state-
ments under oath, could not be subjected to
cross- examination and of course had no
demeanor for the jury to consider.
4. Whether, in the circumstances
now under review. rules of evidence applicable
in federal criminal prosecutions, including the
conspirator exception to the rule against hear-
say evidence, preclude for want of foundation
and authentication admissibility of writings
(contended to be "ledgers" of drug transactions)
found in a garage footlocker of an absent co-
defendant where the government made no effort
to authenticate the documents through expert
3.
comparison with presumably available hand-
writing samples, where the government sought
to arrest another (nonconspirator) on the basis
of handwriting analysis, where no evidence
was adduced to show the writings were made
by an alleged conspirator during the course
of and in furtherance of the alleged conspiracy,
where the writings at best were notations of
past fact, where the contents of the writings
could not be construed as peculiarly within any
alleged conspirator's knowledge, and where
there was an abject absence of indicia of
reliability to the writings attributed to an absent
codefendant not available for cross- examination.
(a) Whether the error of admitting
these writings attributed to an absent alleged
conspirator could properly be cured merely
through the trial court's general instruction on
conspirator hearsay.+
a/ Clearly this case presents additional
questions of substance. As counted by the
court of appeals, ''[a]ppellants together charge
sixty-two errors in this appeal." United States
v. King, 472 F.2d 1, 4 (9th Cir. 1973). Pur-
suant to Rule 46 of the Rulesofthis Court and
Rule 28(i), Fed. R. App. P., petitioner Robert
Butler adopts all applicable arguments advanced
in the related case of Ted Dean Butler v. United
States, no. 72-1213. in which a petition for writ
of certiorari was docketed on March 6, 1973.
CONSTITUTIONAL PROVISIONS
The Fifth Amendment of the United States
Constitution provides in pertinent part:
"No person shall. . . be deprived
of life, liberty or property without
due process of law; . . ."
The Sixth Amendment of the United States
Constitution provides in pertinent part: ~
"In all criminal prosecutions, the
accused shall enjoy the right...
to be confronted with the witnesses
against him; . ss
STATEMENT
Re Proceedings Below.
Petitioner Robert Butler was charged
with two counts of conspiracy in a fourteen
count indictment (C.D. Cal. no. 5902)[R. 63-
g2].2 Proceedings on the indictment were
2! The designation ''R" refers to the record
on appeal whereas 1 R.T. will refer to the
reporter's transcript of the dangerous drugs
trial and 2 R.T. will denote the transcript of
the heroin conpsiracy trial. Such designations
will be followed by appropriate page numbers,
_
o.
conducted in twotrials. On June 29, 1970,
one jury found petitioner guilty as charged of
a dangerous drugs conspiracy, see 21 U.S.C.
§331(q), beginning June 15, 1969, and con-
tinuing until April 22, 1970, in violation of
18 U.S.C. §371 [R. 63-67; R. 358]. On
July 9, 1970, a second jury returned a verdict
of guilty under former 21 U.S.C. $174,
concerning an alleged heroin conspiracy com-
mencing October 24, 1969, and continuing until
April 22, 1970, the date of the return of the
indictment [R. 71-73; R. 377]. On August
17, 1970, petitioner Robert Butler was
committed to the custody of the attorney
general for a term of two years on the drug
conspiracy count and for a term of seven years
on the heroin conspiracy count, the terms to
be served concurrently [2 R.T. 887]. Having
posted bond pending appeal in the amount of
$10,000, petitioner resides at 6318 Wooster
Avenue, Los Angeles, California 90056. On
August 24, 1972, the Ninth Circuit court of
appeals affirmed the judgments of conviction,
rejecting perhaps thirty six assignments of
error made on behalf of petitioner Robert
Butler.3/ The opinion of the court of appeals
was amended upon denial of rehearing on
3! See Appellant's opening brief, 9th Cir.
no. 71-1029, pages 1-5; cf. note 1 supra.
Petitioner's counsel before this Court is
different from his trial and appellate counsel.
February 7, 1973, and a copy of the opinion
is appended to this petition.
2. Jurisdiction.
This Court's jurisdiction of course rests
upon 28 U.S.C. §1254(1). Appellate jurisdiction
was vested in the United States Court of Appeals
for the Ninth Circuit pursuant to 28 U.S.C.
§§1291 and 1294, as well as Rule 4‘b) of the
Federal Rules of Appellate Procedure; notice
of appeal from a judgment of the United States
District Court for the Central District of
California [R. 438-39] was seasonably filed on
August 17, 1970 [R. 445].
3. Facts.
Evidence concerning the two alleged
conspiracies of which petitioner Robert Butler
has been convicted is aptly summarized in the
appendix in a light blindingly favorable to the
government, United States v. King, supra,
472 F.2d at 9-11 n. 5. Insum, a drug
entrepreneur named John Durden had the mis-~
fortune of choosing a federal agent as the
prospective purchaser of some 120, 000
dangerous drugs 4/ on September 9, 1969
[1 R.T. 662, 1114-15, 1118; 2 R.T. 177).
Three days later young Durden was again
arrested, this time in possession of some
140,000 dangerous drugs [1 R.T. 1127-28,
1133]. As is not uncommon in drug law
enforcement, 2/ Durden soon agreed to help
the government ensnare prospective violators
of the various drug laws [e.g., 1 R.T. 1236-
37: 2 R.T. 180-81]. It was not difficult for
Durden to gather evidence against Joe and
Leo Lovato, both in the drug wholesale
business; indeed, Durden more or less :
worked as their distributor [e.g., 1 R.T. 621,
649], selling drugs ‘to anybody that would
buy them." [1 R.T. 896.] But the Lovatos
left Los Angeles prior to trial, leaving only
4/ There were approximately 70, 000
capsules of sodium secobarbital, commonly
branded seconal (a red capsule) and thus
referred to as "reds." [1 R.T. 1207-08. ]
The remaining 50,000 consisted of tablets of
amphetamine sulphate, awhite powder, bear-
ing the jargon name of "white." [1 R.T.
1210, 1333, 1724. ]
5/ See. e.g., Jones v. United States,
266 F.2d 924, 928 (D.C. Cir. 1959)(Bazelon,
J.); Comment, 81 Yale L.J. 703, 712-13 (1972).
8.
SI ROARS RT tO NG RD KRY
a sextet of so-called conspirators5/ to be
convicted on the dangerous drugs count and
only petitioner Butler and an unrelated person
named Ted Butler to be condemned as heroin
conspirators. Interestingly, not one of the
six members of the alleged dangerous drugs
conspiracy (including petitioner) was ever
found to possess so much as an aspirin tablet.
Equally curious are convictions as heroin
conspirators without any heroin. £/
6/ The court of appeals appears to have
held as a matter of law that the facts allowed
an inference of only one dangerous drugs
conspiracy, finding no error in the district
court's refusal to instruct the jury as to the
possible existence of separate conspiracies.
United States v. King, 472 F.2d 1, 12 (9th
Cir. 1973). To find a single conspiracy
among mere buyers and sellers, see, e.g.,
United States v. Varelli, 407 F.2d 735
(7th Cir. 1969) (and authorities cited), the
court in the case at bar rejected Kotteakos
v. United States, 328 U.S. 750 (1946), and
instead relied upon Blumenthal v. United
States, 332 U.S. 539 (1947).
7/ In recounting the factual setting the
court of appeals depicts a November 3, 1969,
discussion of heroin between petitioner and
Joe Lovato in the presence of informer Durden.
According to the court, "[a] small purchase
was made by Robert Butler. . . .'" United
States v. King, 472 F.2d 1, 11 n. 5 (9th Cir.
9.
The evidence of the alleged conspiracies
consisted almost exclusively of testimony of drug-
entrepreneur-turned-informer Durden, tape
recordings of conversations between Druden and
various people and some writings seized from
the garage of absent codefendant Leo Lovato.
United States v. King, supra, 472 F.2d at 8,
Q-11 n. 5.
7/ (continued from previous page)
1973). But a closer examination of the
record reveals error in the implicit suggestion
that Durden witnessed a purchase of heroin.
His direct testimony shows he was at best
relating remarks he thought might have been
made that evening [2 R.T. 53], and on cross-
examination Durden testified that he had never
even seen heroin (at least prior to the govern-
ment's use of him) [2 R.T. 190, 207-08, 212]
and that he had never seen petitioner Robert
Butler use heroin [2 R.T. 213].
8/ The recordings were of telephone
conversations made by Durden from the
Los Angeles office of the federal bureau of
narcotics and dangerous drugs [2 R.T. 194,
209, 221).
10,
Following Durden's September arrests
on federal charges, 3 agents sought his help
as an informer fe.g_, 1 R.T. 1133, 1236].
It appears that on October 24 1969, six weeks
after the arrests, arrangements for Durden's
"cooperation" were finalized at the oftice of
his attorney [1 R. T. 1236-37; 2 R.T. 180-
81). 42 Pursuant to the agreement Durden's
attorney instructed hirn to ''do whatever I
could to work with the Government." [2 R.T.
182.] Agent Robert Sternaman and three other
ee ee ee ee a ee ee eee ee
9/ Durden aiso had probierns with
California courts At the time he made the
deal with the government at bar. he was
awaiting sentencing in state court on theit
and forgery’convictions [1 R.T. 945).
Through the intercession of the tederal nar-
cotics bureau. Durden was released on
probation so that he couid work as an
informer [1 R.T. 799 1276-77. 1283).
Simiarly., a pending state feiony prosecution
was continued until Durden’s tederal "coopera-
tion’ could be compieted {1 R.T. 853-54).
10/ The date of the meeting appears to
coincide with the commencement of the
alleged heroin conspiracy [R. 72]. Heroin
was unknown to Durden {2 R.T. 212) until
his informer duties required hiin to attempt
to involve others with the drug and gather
evidence [2 R.T. 410].
11
PS ATT VR Made
federal agents negotiated tne deal with Durden
and Durden's lawyers [2 R. T. 181-83, 409-11].
In his testimony before the district
court at the twotrials Durden recailed intimate
details of nurnerous conversations with aileged
conspirators but could not rernember what had
been said at the tneeting which confirmed his
informer deai [2 R.T. 183]. Simply stated,
informer Durden denied that any promises of
anything had been given in exchange for his
extensive cooperation |1 R.T. 796, 893, 993,
2R.T. 184 190-91 238).
With regard to the impending dismissal
of the tederal charges against him | Appendix B},
informer Durden asserted he had no hope at ail
that he would not be prosecuted {2 R.T. 184).
When asked. tor exaimpie wrether his work
with the agents was due to hopes of leniency in
his own case, Durden answered "|n]o," then
said "possibly."' {2 R.T. 233.] Interrupting
cross-examination. the district court ques~
tioned intormer Durden:
"You did it with the hope that
whatever Court it is that has your
case would consider it. isn't that
right?" {2 R. T. 233.)
Durden answered allir:matively. The triai
court turther inqui: ea.
"Has anyone ever toid you that
any case you have pending in the
12.
federal court wili be dismissed?"
[2 R.T. 238. ]
Informer Durden told the court and jury that
"nobody has." [2 R.T. 238.]
As Durden denied ever receiving any
promises or even hoping for a dismissal, the
government prosecutor did not attempt to cor-
rect the testimony. Nor did the agent in
charge of the case, one Sternaman, suggest
that Durden might not be telling the truth.
Instead, at the first trial, government counsel
built his case on redirect examination by
having informer Durden flatly deny any promise
of any aid from any member of the government
[1 R.T. 993) At the second trial, the scene
was substantialiy the same. On redirect
examination. government counsel asked in-
former Durden, "have I made any promises to
you inthis case?" [2 R T. 242.) Durden
?
denied any promises. il!
When the defense sought to argue that
Durden's credibility was questionable because
his testimony had been given in exchange tor
11/ Interestingiy. government counsel's
protestations of no promises contilicted with
informer Durden's admissions that government
counsel had at least promised to bring his
cooperation to the attention of the judge before
whom Durden wouid appear [2 R.T. 239, 242).
13.
dismissal of the federal charges as well as
other benefits, government counsel announced:
"May I state for the record I do not
intend to dismiss the case against
John Durden." [1 R.T. 1938. ]
Based upon such assurances from the assistant
United States attorney with total authority over
Durden's case [1 R.T. 1937], the district court
ruled Durden's credibility could not be attacked
by argument that the indictment would be dis-
missed [1 R.T. 1968-69].
Although government counsel gave such
strong assurances to the court, it appears that
he had previously said in private conferences
that he intended to dismiss the charges [Appendix
B}. ¢! His previously stated intention was borne
out on September 29, 1970, six weeks after
sentencing in the instant matter, when the govern-
ment successfully moved the district court to
12/ The affidavits included in the appendix
are of course not within the trial record. How-
ever, where, as here, the integrity of administra-
tion of justice is at stake it is appropriate to
consider affidavits relating nonrecord events.
United States v. Shotwell Mfg. Co., 355 U.S. 233,
242-43 (1957); see, e.g., Mesarosh v. United
States, 352 U.S. 1 (1956); Communist Party v.
Subversive Activities Control Bd., 351 U.S. 115,
124-25 (1956); cf, Kolod v. United States, 390
U.S. 136 (1969).
14.
dismiss the charges against informer Durden,13/
During oral argument before the court of appeals,
the same assistant United States attorney an-
nounced a watered-down version of his represen-
tation not to dismiss the case against Durden.
He responded to the appellate court's probe by
alleging that his actual intentions were to reduce
the charges against Durden to an unnamed mis-
demeanor offense [Appendix B]. - Assuming
this to have been his intention, he had not
disclosed it to the district court; moreover,
even to reduce the felony charges would have
required dismissal of the original case and
filing of a new information [Appendix B].
Nevertheless, as observed above, government
counsel had assured the court that he had
complete authority over the Durden matter and
that dismissal would not be forthcoming [1 R.T.
1937-38, 1968-69]. 14
13/ This Court may take notice of the district
court files in United States v. John Durden, C.D.
Cal. nos. 4762, 4847, but, because the govern-
ment has never denied the fact, the court of
appeals proceeded on the correct assumption that
"the indictment against Durden was dismissed by
the government.'' United States v. King, 472 F.
2941, 6 n. 2 (9th Cir. 1973).
14/ The misrepresentations to the district
court led to the ruling that the defense could not
argue the case against Durden would be dismissed.
During the discussion of the matter, the trial
court said: “Oh, yes, you can argue what his
15.
Other than the Durden testimony and
recordings, primary evidence of the alleged
conspiracies consisted of writings seized
shortly after the arrest of absent alleged
conspirator Leo Lovato, as discussed in
part III of the opinion of the court of appeals.
United States v. King, supra, 472 F.2d at 7-11.
The writings were found in an unlocked footlocker
in the garage of l-eo Lovato's residence [2 R.T.
323, 339], and were admitted over plenary
objection at both triais against petitioner
Robert Butler [1 R.T. 1548, 1859, 2063;
2R.T. 326), 15/
TT
14/ (continued from previous page)
expectations are, But that is a lot different
[from] arguing that u is going to be dismissed,
[counselor]. as you know so well." [1 R.T.
1969.] The great difference observed by the
trial court is virtually nonexistent in the eyes
of the court of appeals. United States v. King,
472 F.2d 1, 6 (9th Cir. 1973).
15/ Objections to the admissibility of the
garage papers were made on numerous grounds
throughout the proceeding~ le.g.. 1 R.T. 1170,
1173-81, 1196-97. 1318, 1541, 1667, 1857;
2 R.T. 323-26). As pertinent to this petition.
the writings were challenged for lack of founda-
tion and authentication le.g.. R. 386; 1 R.T.
1175, 1177-82: 2 R.T. 326], as inadmissible
hearsay [e.g., 1 R.T. 1170 et seq.], and as
violative of the Confrontation Clause fe.g.,
1R.T. 1858).
16.
The record discloses that after arrest-
ing Leo Lovato on February 6, 1970, federal
agents searched the Lovato garage16 and
seized what government counsel called "the
16/ The court of appeals relates that follow-
ing the Lovato arrest, "in response to inquiry
about dangerous drugs, [Lovato] pointed out to
the officers the location in his attached garage
where the drugs could be found." United States
v. King, 472 F.2d 1, 8 (9th Cir. 1973). As
viewed by the court of appeals, "Lovato in
effect identified the documents as his own by
directing the agents to his 'business storeroom'
where they were found with his contraband
merchandise." Id.
It should be observed that the contra-
band merchandise did not include heroin
hydrochloride, the substance allegedly involved
in one conspiracy of which petitioner
Robert Butler has been convicted [2 R.T. 340].
More importantly, the garage papers
could not be deemed to have been identified by
Leo Lovato as his own. Lovato's arrest had
been effected and the purported identification
was not admissible under the conspirator excep-
tion to the rule against use of hearsay evidence.
See Fiswick v. United States, 3289 U.5. Zit,
217 (1946). Nor may the hearsay "identifica-
tion'’ be viewed as an admission by Lovato;
Lovato did not stand trial.
17.
two ledger books," [2 R. T. 324], containing
"just writing. names, numbers." [2 R.T.
325,] One of the names written in each
document was "Bob." [2 R.T. 343-44. ]
As stated by the court of appeals:
"The government failed to present
any proof that the writings were
in the handwriting of any of the
appellants, or of when the writings
were made.'"' United States v. King,
supra, 472 F.2d at 7.
Nor was there any evidence that the garage
papers were in the handwriting of Leo Lovato,
"who fled before the trial... .'’ Id, at
a 17/ ve
Although the government chose to offer
no expert testimony concerning the handwriting
on the garage papers, agent Sternaman testified
that he had previously appeared before a federal
commissioner and had made the following
statement under oath:
''T acquired samples of Barbara
Lovato's handwriting and I have
been informed by 4 Los Angeles
17/ There was no expert handw riting
analysis offered by the government, despite
the appearance of Leo Lovato's signature on
the second page of the present record [R. 2].
18,
Sheriff's Ottice handwriting expert
that many of the entries referring
to the sale of dangerous drugs were
in fact written by Barbara Lovato. '"
[1 R.T. 1713-14.)
Leo Lovato was indicted along with petitioner
Robert Butler but failed to appear for trial;
Barbara Lovato was not alleged to be a member
of either conspiracy.
Finding no error in the admission of the
garage papers, the court of appeals thought the
circumstances of the location of the papers
and the apparent custody of the papers by
Leo Lovato provided a "reliable index of
genuinesness,"' United States v. King, supra,
472 F.2d at 8, to the extent that the absent
Leo Lovato must have authored the materials.
The court of appeals then relied upon the
standard conspiracy hearsay instruction to
support its view that the jury found the absent
Lovato to be a conspirator and to have written
the notations.18/ during the course of and in
furtherance of the conspiracies. Id, at 9,
11.
18/ The notations are iilustrated in the
appellate opinion, United States v. King, 472
F.2d 1. 8 (9th Cir. 1973). as including ''Pd
$250 to driver’ and,Pd in full.'""" There is no
attempt to explain how these narrative state-
ments of past events cf, id, at 5, could have
made in furtherance of either conspiracy.
19,
REASONS FOR GRANTING THE
WRIT
s.. A JUDGMENT OF CONVICTION
MAY NOT BE SUSTAINED
WHERE GOVERNMENT COUNSEL
MISREPRESENTS TO A
FEDERAL COURT HIS INTEN-
TIONS TO DISMISS A CASE
IN EXCHANGE FOR THE
"COOPERATION" OF THE
GOVERNMENT'S PRINCIPAL
WITNESS.
This unfortunate case involves serious
disregard "for the honor of administration of
justice."' Communist Party v. Subversive
Activities Controj] Board, 351 U.S. 115, 124
(1956). A zealous prosecutor, acting perhaps
from excessive "earnestness and vigor, “
Berger v. United States, 295 U.S. 78, 88 (1935),
secured criminal convictions but utilized methods
which are beyond what the nation can "afford to
abide,"' Mesarosh v. United States, 352 U.S.
1. 14 (1956). As the conduct of government
counsel at bar pales in co:nparison to that
condemned in Giglio v. United States, 405 U.S.
150, 154 (1972), the judgment cannot stand.
Here. as in Giglio, without the informer's
testimony there woud have been "no evidence to
carry the case to the jury." Giglio v, United
States, supra. 405 U.S. at 154. Unlike Giglio,
20.
ed, IR al AT OP
however, the instant case does not involve
a negligent nondisclosure of a promise not to
prosecute informer Durden. Instead the case
presents a government prosecutor's repre-
sentation to a federal trial judge that the case
pending against the informer would not be
dismissed. However, government counsel
had stated previously that he would dismiss
the case against informer nad in exchange
for cooperation [Appendix B]. And shortly
after the proceedings below had been completed
the charges against informer Durden were in
fact dismissed.
19/ The affidavits in the appendix at the
very least “east the darkest shadow upon the
truthfulness" of the government in the present
case. United States v. Shotwell Mfg. Co.,
355 U.S. 233, 241 (1957). Standing alone,
the affidavits are sufficient to call for resolu-
tion of the charges against the government.
Id. at 242-43. Rather than remand for an
evidentiary exploration of the extent of the
fraud, it would appear that the affidavits should
be considered in conjunction with the conduct
disclosed by the record; the impurity of the
proceedings is sufficiently clear as to call for
outright reversal. Hopefully, the govern-
ment's posture before this Court will feature
the kind of "commendable candor" from the
Solicitor General which enabled disposition of
Mesarosh v. United States, 352 U.S. 1, 7(1956).
21
A Lhe DAN BOS TIL
Despite the record, the affidavits and
the admission at oral argument, the court of
appeals upheld the methods employed by govern-
ment counsel. Rejecting reliance on Giglio v.
United States, supra, the court construed Giglio
as applicable only if ''a promise of dismissal
had definitely been made to Durden and that
this alleged promise was known to the prosecu-
tion." 20/ United States v. King. supra, 472 F.
2d at 6. Under this view of Giglio, (a) the
government may hide behind the proverbial wink
of the eye to an informer (or a direct promise
20/ The court of appeals also said: "The
government has at all times denied sucha
promise, and there is no evidence in the record
to the contrary.'' United States v. King, 472
F.2d 1, 6 (9th Cir. 1973). This is ridiculous.
The face of the record cannot be determinative
of false evidence questions or the issues would
be foreclosed from inquiry. Moreover, in the
instant case. the government has not attempted
to refute the charges of misrepresentations to the
trial judge. Ordinarily one finds affidavits as to
- the facts. See. e.g., Giglio v. United States,
405 U.S. 150 (1972); United States v. Perisco,
330 F.Supp. 1077, 1090-91 (E.D.N.Y. 1972).
The absence of affidavits is significant. Cf.
Favor v. Henderson, 348 F.Supp. 423, 425
(W.D,. La. 1972) (Dawkins. J.). Here, the
denial by the government of the deal to dismiss
Durden's case is the challenged misrepresenta-
tion; it may not be construed as the representa-
tion to refute the allegations of misrepresentation.
Da. STE A TIE LIEK
to his counsel) and insist that the informer per
sonally had not been promised dismissal, and
(b) the government may make misrepresenta-
tions to a federal court regarding intentions to
dismiss a case against an informer if there is_
no evidence of record that these intentions have
been communicated to the informer. 21/
Clearly the decision of the court of
appeals sanctions procedures violative of basic
concepts of integrity and due process; it must
accordingly not be allowed to stand as a license
for future sophisticated Giglio violations.
21/ The Texas Court of Criminal Appeals
has recently considered a case where there
was no showing the prosecution communicated
its promises oc! dismissal to the informer
personally. ‘ihe majority of the court found
arrangements made with the informer's counsel
to be within the scope of and discovery mandate
of Giglio v. United States, 405 U.S. 150 (1972).
See Burkhalter v. State. S.W.2d__ (Tex.
Ct.Crim. App. 1973), in 12 Crim. L.Rptr. 2547
(March 28, 1973), cf, United States v. Mele,
462 F.2d 918, 925-26 (2d Cir. 1972) (Mr. Justice
Clark).
\ 23.
2. THE DECISION OF THE COURT
OF APPEALS SANCTIONS USE
OF FALSE EVIDENCE IN A
FEDERAL, COURT ON A RECORD
VIRTUALLY IDENTICAL WITH
THAT OF NAPUE V._ ILLINOIS,
360 U.S. 264 (1959),
Here, not only did the government violate
its "duty of candor toward the defendant," United
States v. Hibler, 463 F.2d 455, 459 (9th Cir.
1972) (Duniway, J.). but moreover the govern-
ment indeed "labored to keep vital information
from the defense, the trial judge and the jury,"
United States v. Mele, 462 F.2d 918, 924 (2d
Cir. 1972) (Mr. Justice Clark). Throughout
the proceedings below the government's principal
witness denied the existence of any promises,
consideration or aid in exchange for his extensive
cooperation and testimony. This of course was
patently false evidence. It now appears that a
multitude of assistance. including dismissal of
a pending federal case, was in fact given by the
government.
Instead of correcting Durden's false
testimony that no promises had been made,
the government in the case at bar elected to mis-
lead the court and jury even further, 22/ It was
22/ Thus the case is not merely one ‘of
acquiescence and knowledge," but of an inten-
tional failure "to correct the testimony. .. ."
24.
REDO CT EALERTS LETS BA TENE
on redirect examination of informer Durden,
as in Napue v. Illinois, 360 U.S. 264, 270-
71 (1959), that government counsel elicited the
false evidence that the principal witness had
not ‘in any way been promised any help or aid
from the Government or any member of the
Government for this testimony[. ]'" [1 R.T.
993,|—' There is no interpretation of these
words which would allow a conclusion that the
testimony was not false, and thus within the
clear condemnationof Napue. The false testi-
mony affected "the credibility of the witness, "
Napue v. Illinois, supra, 360 U.S. at 269,
was ‘important'' to the government's case,
id, at 270, and, as Durden was the only witness
22/ (continued from previous page)
See Dale v. Williams, 327 F.Supp. 381, 383
(E.D. Pa. 1971) (Weiner, J.); see also United
States v. Harris, 462 F.2d 1033, 1034-35
(10th Cir, 1972); Imbier v. Craven, 298 F.
Supp. 795, 805-06 (C.D, Cal. 1969) (Ferguson,
J.), aff'd, 424 F.2d 631 (9th Cir.), cert.
denied, 400 U.S, 865 (1970), The use of false
evidence simply has ''no legal justification. "
Ia., 298 F.Supp. at 806.
23/ The words were those of the government
prosecutor. By use of the phrase "in any way,"
government counsel appears to have included the
possibility that the promise of dismissal had
been communicated to Durden by his attorney
rather than by a government agent. See note
21 supra.
29.
aa tt
of significance. the false evidence cannot be
deemed to have "not in any reasonable likeli-
hood have affected the judgment of the jury."
Id, at 271; accord, e.g., Giglio v. United
States, supra, 405 U.S. at 154-55. Durden's
incessant false denials of governmental aid
for his "cooperation, '' coupled with the govern-
ment's insistence upon bolstering the false
testimony of its key witness informer, clearly
"may have had an effect on the outcome of the
trial. Accordingly. the judgment below
must be reversed." Napue v. Illinois, supra,
360 U.S. at 272. 24/
24/ The court of appeals was oblivious to
the problem of promises other than one of
dismissal of the federai case made directly to
Durden. See note 20 supra and accompanying
text. The deal with Durden and Durden's
attorneys appears to have included not only
dismissal of the case arising from Durden's
attempted sale of 120. 600 dangerous drugs and
his possession three days later of 140, 000
dangerous drugs [pages 7-8 supra], but also a
recognizance release prior to finalization of
informer arrangements [1 R.T. 793-94], pro-
bation instead of prison on a pair of state felony
convictions [note 9 supra}. indefinite continuances
of a pending state felony prosecution [note 9 supra],
and perhaps otherconsiderations which remain
the secret of Vurden andthe government. Cf,
note 5 supra (and authorities cited).
WITHIN THE PRESENT
CONTEXT THE CONFRONTA-
TION CLAUSE PRECLUDES THE
ADMISSIBILITY IN A CONSPIRACY
PROSECUTION OF WRITINGS
FOUND IN A GARAGE FOOT-
LOCKER SUBSEQUENT TO THE
“ARREST OF AN ALLEGED
CONSPIRATOR WHO FLED
PRIOR TO TRIAL.
To find evidentiary support for the conspiracy
convictions, the court of appeals related informer
24/ (continued from previous page)
In considering the instant use of false
evidence and that condemned in Napue v. Illinois,
360 U.S. 264, 270-71 (1958), it should be
observed that the only factual distinction is the
absence of allegations made by the prosecutor
himself of promises of dismissal given directly
to the informer, see id, at 266-67. But the
other promises which were learned despite con-
cealment, coupled with circumstances leading
ineluctably to the conclusion that both the prose-
cution and Durden knew the no dismissal testimony
was false, render the case indistinguishable from
Napue in thrust. Moreover, here the false evidence
and the misrepresentations resulted in the trial
court's erroneous ruling that impending dismissal
of charges could not be argued to the jury although
such information was of course "relevant to [Durden's]
credibility and the jury was entitled to know of it."
Giglio v. United States, 405 U.S. 150, 155 (1972).
27.
Durden's testimony and further stressed that
the writings found in the footlocker in Leo
Lovato's garage ''provided additional strong
circumstantial evidence.'' United States v.
King, supra, 472 F.2d at ll n. 6; see id, at
8. The writings, made at unknown times by
unknown persons, id, at 7, were described
generously (to say the least) as "two ledgers, "'
id. at 8, containing "records of a drug
business." Id, 25/
Whoever made the writings in question
clearly was a witness against petitioner Robert
Butler at both trials. Thus involved is
petitioner's constitutional right of confrontation
under the Sixth Amendment. See, e.g.,
Dutton v. Evans, 400 U.S. 74 (1970); California
v. Green, 399 U.S. 149 (1970); Douglas v.
Alabama, 380 U.S. 415. 419-20 (1965). Mr.
Justice Rehnquist has recently summarized
the requirements of the Confrontation Clause:
"The focus of the Court's concern
has been to insure that there ‘are
indicia of reliability which have
been widely viewed as determina-
tive of whether a statement may
be placed before the jury though
25/ Despite this characterization there
has been no suggestion the writings could
possibly qualify for admission as business
records within the purview of 28 U.S.C.
§ 1732.
28.
there is no confrontation of
the declarant,' [citation], and to
‘afford the trier of fact a satis-
factory basis for evaluating the
truth of the prior statement, '
[citation]."' Mancusi v. Stubbs,
408 U.S. 204, 213 (1972).
The Court has sustained the admission of
prior- recorded testimony, for example, where
opportunity to cross-examine and counsel's use
of that opportunity provided the requisite indicia
of reliability and basis for truth evaluation.
Id, at 216.
No decision of this Court could extend
9 sanction admission in the instant case of
writings found in the garage of an alleged
conspirator who was never available for cross-
examination. The writings were without any
of the indicia of reliability ordinarily in question
for purposes of the Confrontation Clause. See
California v. Green, supra, 399 U.S. at 158.
Though the admission of the writings did not
have the dramatic impact of Douglas v. Alabama,
supra, 380 U.S. at 419-20, the effect was
equivalent to the prosecution's reading a piece
of paper and saying it was the confession of
Leo Lovato. Unlike Dutton v. Evans, supra,
400 U.S. at 87, see id, at 90 (Blackmun, J.,
concurring), the confrontation violation in the
present case was not of peripheral significance
or harmless. As acknowledged by the court
of appeals, the writings were essential to
conviction.
to
ive
The decision of the court of appeals
may not be allowed to remain as precedent
for the proposition that facts may be found
from pieces of paper featuring writings made
by someone at an unknown time who presently
is not in court to testify to the facts. 26
4. WRITINGS FOUND IN A
GARAGE FOOTLOCKER MAY
NOT PROPERLY BE RECEIVED
AS EVIDENCE IN A FEDERAL
COURT WITHOUT PROOF OF
AUTHORSHIP OTHER THAN
THE CIRCUMSTANCES SUR-
ROUNDING THE SEIZURE.
- —
The garage papers were admitted over
objection for want of foundation and authentica-
tion, To sustain the admission of writings
introduced without proof of handwriting which
26/ Business records or official records
obviously bear sufficient indicia of reliability
and basis for truth evaluation as to be dis-
tinguishable from garage papers.
It should be observed that the court
of appeals failed to focus upon the denial of
confrontation though the objection was properly
raised below and argued on appeal.
30,
was available [R. 2], the court of appeals
found that the location of the papers in the
Lovato footlocker was sufficient to assure
that absent alleged conspirator Leo Lovato was
the creator of the writings. To support the
conclusion the court of appeals cited two
precedents where the alleged writer was nga)
court to refute the allegationof authorship. —
The court further found itself "in agreement
with Professor McCormick, '' United States v.
King, supra, 472 F.2d at 8, quoting a
suggestion fromthe 1954 work which does
appear in the present edition. 28/
27/ The court relied upon the factually
inapposite case of United States v. Sutton,
426 F,2d 1202 (D.C. Cir, 1969), and
placed special emphasis upon the rather
obscure and nonreasoned People v. Ramsey,
83 Cal. App. 2d 707, 189 P. 2d 802 (1948),
overruled on other grounds, People v. Brown,
49 Cal. 2d 577, 584 (1948).
28/ See C, McCormick, Evidence 552
(2d ed, 1972). The present edition incor
porates the suggestion as applicable in
circumstances such as those of United States
v, Sutton, 426 F.2d 1202 (D.C. Cir, 1969).
There is no construction by which the theory
might be applied to allow the admissibility of
the instant garage papers.
31,
The decision of the court of appeals
ignores rules of evidence traditionally applicable
to admissibility of documents. Particularly in
light of the fact that the government could have
properly authenticated the documents (if they
were in the handwriting of Leo Lovato), the
failure of foundation and authentication is not
sulficiently justifiable to warrant the new rule
of evidence.
CONCLUSION
lor the reasons stated, petitioner Robert
Butler respectfully prays that the petition for
writ of certiorari be granted and that the judg-
ment of the court of appeals be reversed.
Respectfully submitted,
LAW OFFICES OF
BARRY TARLOW
By: Barry Tarlow
Attorneys for Petitioner
APPENDIX A
FEDERAL REPORTER
VOLUME 472, SECOND SERIES
UNITED STATES of Anuerica,
Plaintiff-Appellee,
v. ;
Quarles KING, Defendant-Appellant.
UNITED STATES of America,
Plaintiff-Appeliec,
v.
Manucl RODRIGUEZ, Defendznt-
Appcliant.
UNITED STATES of America,
Plaintiff-Appeliee,
v.
bbert BUTLER, Defendant-Appellant.
UNITED STATES of America,
Plaintiff-Appellee,
v.
td Dean BUTLER, Defendant-Appcllant.
UNITED STATES of America,
Plaintiff-Appclee,
v.
Vieesnt ARIAS, Defendant-Appcllant.
“6, 11-1256, 71-1088, 71-1929 to 71-1031.
United States Court of Appeals,
Ninth Circuit.
Aug. 24, 1972.
4s Amended on Denial of Rehearing
Feb. 7, 1973.
Defendants were convicted in the
“Med States District Court for the
‘ “tral District of California, E. Avery
"ts, J.. of conspiring to possess for
“Sand to sell dangerous drugs, and
(72 F264
1
two of such defendants were also con-
victed of conspiracy to conceal, transport
and sell heroin, aud all defendants ap-
pealed. The Court of Appeals, Wallace,
Circuit Judge, held, inter alia, that
where evidence was overwhelming that a
dangerous drug conspiracy and a heroin
conspiracy did exist, and a majority of
testimony, including tape recorded evi-
dence in both drug cases could easily
have supported a finding by jury that
defendant in whose garage ledgers and
other papers were found was a member
of each of conspiracies, and contents of
ledgers and other papers appeared on
their face to have been written during
course of conspiracy and in furtherance
of objects of conspiracy, such evidence,
coupled with independent evidence of
each defendant’s participation in con-
spiracy, was sufficient to allow jury to
consider ledgers and other papers taken
from defendant’s footlocker as to each
defendant.
Affirmed.
1. Criminal Law ©—394.5(3)
There was no error in introducing
various taped telephone conversations
that took place between defendants and
a cooperating, unindicted coconspirator,
who gave his consent to taking of
recordings which were made by connect-
ing his telephone with a tape recorder.
2. Criminal Law ©6413
There is no right to counsel while
one is committing a crime.
COPY BOUND CLOSE IN CENTER |
POOR COPY
PAGE CUT ofr :
472 FEDERAL REPORTER, 2d SERIES
Law €393(1), 6412
Rights of defendants to counsel and
be free from self-incrimination were
wt violated by unseen and unheard
azine of telephone conversations
that took place between them and a co-
ating, unindicted coconspirator, not-
vaetanding claim that defendants had
right to be warned of their right to
sae] before they spoke, in that cocon-
was calling them at request of
t narcotics agents, where, at
=e of recorded telephone calls, defend-
wis had not been indicted and were not
rpresented by counsel, nor had investi-
pation reached “accusatory” phase, and
gefendants were clearly suspected of
qiminal activity and were being investi-
pied.
4 Criminc! Law (—361(1), 438
While it was true that a few of
dstements made by a cooperating, unin-
fied coconspirator on various tared
wephone conversations that took piace
wth deferd.nts contzined narrative
gatements of events not strictly in fur-
trance of conspiracy, where none of
wh statements could reasonavly Se said
t be so prejudicial as to constitute re-
wesible error, it was net improper to al-
lw jury to hear tipes of and simultane-
easly read transcripts of coconspirator’s
ialf of recorded conversations, notwith-
sanding claim that a great mass of
prejudicial hearsay was thereby allowed
into evidence.
,
5. Criminal Law ©7907
Although a cooperating, unindicted
cconspirator was asked whether in fact
a pending indictment against him was
‘ping to be dismissed in consideration of
his testimony against defendants, to
which question he answered “No,” testi-
mony was not a basis for proving claim
that, by allowing such testimony to go
Puncorrected, prosecutor was acquiescing
in knowing use of false evidence, where
caim was based on premise that a prom-
ise of dismissal had definitely beea
made to coconspirator and that allezed
promise was known to prosecution, but
ent at all times denied such a
promise, and there was no evidence ji:
record to contrary.
6. Criminal Law <—720(5)
Notwithstanding claim that tria
EE is ake
court committed reversible error by n- -
allowing defendant to argue to jury the: *
testimony of a cooperating, unindicte- ‘
coconspirator was not worthy of belix’
since he had been promised a dismis:. _
if he testified against defendants, wher.
trial court stated that it would alle.
counsel to argue that coconspirator he:
great expectations of a dismissal as an
one in a similar position would have, > —
was not unduly restrictive to preve:
counsel from arguing that dismissal w:-
in fact forthcoming.
7. Criminal Law €°394.5(2)
Defendants lacked standing to mor-
for suppression of various scraps of p--
per with writing thereon taken from :
trash container in front of home of =
indicted coconspirator who fled befor:
trial, where neither of defendants hs
any proprietary interest in items >
question, nor were they persons again: ©
whom searches in question were direc:
ed.
8. Arrest 63(4)
Criminal Law €394.4(12)
Searches and Seizures €°7(12)
Where defendant was arrested pu:
suant to information that there was °
warrant for his arrest for a federal n2* :
cotics law violation, and was questiort
regarding registration of vehicle, wit? ©
son stating that car belonged to his f.
ther whores acfendant stated that t
had borrowed vehicle from a friend, 3°-
a radio check revealed that license pl":
on vehicle were registered to another *:
hicle, officers had probable cause to t
lieve that a crime had been commit
by all three persons, which provided
gal justification for their arrest. x
warrantless search of their personal
sessions at station house pursuant to”
rest was not violative of their Fo"
Amendment rights, and ledger >’
found in wife’s purse was not subject *
suppression. U.S.C.A.Const. Amend. !
€63(4)
Notwithstanding claim that arrest-
ag officers could not base their arrest
f jefendant on mere report received by
, radio that there was an outstanding
amant for his arrest, where, at time of
yjs arrest, there were two valid arrest
grants outstanding, one being issued
» district court pursuant to return of
jn indictment charging defendant with
me of which he was ultimately con-
“ted, and other being issued by a mag-
arate on an affidavit which adequately
a forth facts underlying charging offi-
as conclusions, facts were sufficient
» support an independent judgment
tat probable cause existed for defend-
sat’s arrest.
i. Criminal Law ©=444
It is function of trial court to deter-
ie whether proffered evidence has
‘ugh prima facie trustworthiness to
rant its consideration by jury, and
oerally sufficiency of a showing of
thenticity of a writing sought to be
“mduced into evidence is a matter
wthin discretion of trial court.
i. Criminal Law C444
Notwithstanding claim that mere
“stents of a writing which is purported
«be authored by a particular person
-einsufficient evidence of genuineness,
tumstances extrinsic to document may
‘vith sufficient certainty to person
‘versons who created it to allow jury
‘onsider document.
* Criminal Law (444
Ledgers and other papers taken
= footlocker found in garage of one
defendants where drugs were also
-‘d, though technically hearsay, were
‘“assible against that defendant as an
““assion, though government failed to
“nt any proof that writings were in
‘titing of any of defendants, or
"2 writings were made, where partic-
* defendant in effect identified docu-
: Ke as his own by directing agents to
business storeroom” where they
“ found with his contraband mer-
“dise,
UNITED STATES v. KING 3
Cite as 472 F.2d 1 (1973)
13. Criminal Law <-779
Trial court properly instructed jury
in drug prosecution that, if they found a
conspiracy did exist and that a defend-
ant was a member of conspiracy, state-
ments and acts of those found to be mem-
bers of conspiracy could be considered by
jury as evidence in case as to any defend-
ant found to have been a member, pro-
vided such statements or acts were know-
ingly made or done during continuance
of conspiracy and in furtherance of some
object or purpose of conspiracy.
14. Criminal Law 428
Where evidence was overwhelming
that a dangerous drug conspiracy and a
heroin conspiracy did exist, and a ma-
jority of testimony, including tape
recorded evidence in both cases could
easily have supported a finding by jury
that defendant in whose garage ledgers
and other papers were found was a
member of each of conspiracies, end con-
tents of ledgers and other papers ap-
peared on their face to have been writ-
ten during course of conspiracy and in
furtherance of objects of conspiracy,
such evidence, coupled with independent
evidence of each defendant’s participa-
tion in conspiracy, was sufficient to al-
low jury to consider ledgers and other
papers taken from defendant’s footlocker
as to each defendant.
15. Criminal Law 132, 1169(2)
Where scraps of paper taken from
defendant's trash did not qualify under
either of rationales used to admit ledg-
ers and other papers taken from defend-
ant’s footlocker, as there was a great
difference between defendant’s having
identified to arresting officers wherea-
bouts of contraband and records of con-
traband transactions and merely finding
discarded memoranda in defendant’s
trash, with most of them apparently con-
taining no more than doodles, unrelated
telephone call messages and lists of num-
bers with Ictters beside them which
could easily be taken as reflections of
transactions merely contemplated rather
than records of transactions actually
planned, admission of scraps of paper
rewered from trash was error, but er-
ror Was harmless in view of other evi-
dence in case.
ib Law €=434, 1169(2)
Where only 12 of 75 pages of ledger
ook seized from. defendant’s wife con-
ined writings which trial court deemed
afficiently relevant to admit into evi-
gence in drug prosecution, and even
those pages presented a rather sketchy
mi confusing picture, admission of
was error, but error was harmless
iaview of other evidence in case.
i. Criminal Law >1169(5)
Frror, if any, in admitting state-
ment found on recorded tape conversa-
tin of alleged ccnspiracy that “He'll
referring to one of alleged coconspira-
tors) go tonight ard kill somebody, or
something.” was harmiess, where, taken
in context, it was highly unlikely that
jury could have understcod statement to
mean that particular coconspirator was
xteally going to cornmit murder and
trial court immediately instructed jury
to disregard statement.
1k Conspiracy C>438
Where evidence was very persuasive
that most of coccnspirators not oply
new of others, but that all of them
knew of and participated in illegal plan
of distribution of amphetamines and
tarbiturates, it was not error for trial
court to refuse to give an instruction on
possibility of finding raultiple conspir-
acies.
19. Criminal Law €-1030(1)
Vhere there is no plain error, one
may not raise on appral that to which he
did not object at trial.
2%. Criminal Law ©-1025(3)
Notwithstanding claim that, during
course of trial, some defense attorneys
were occasionally excused for short
times to attend to other matters, and,
each time, the other counsel agreed to
represent interests of absent attorney’s
_ dient, and that such occasional “pinch
_ hitting” deprived defendant of his right
to counsel, or at least of his right to ef-
ive assistance of counsel, where no
472 FEDERAL REPORTER, 2d SERIES
objections were made by defendant dur.
ing course of trial to such procedur
and, on the contrary, he specifically con.
sented to it the two times that his coun.
sel was absent, defendant was preclude:
from raising claim on appeal.
a ae
Morris Lavine (argued), Norman J.
Kaplan (argued), Barry Tarlo»
(argued), Eli Blumenfeld (argued), Le: .
Angeles, Cal., for defendants-appellants. -
Irving Prager, Asst. U. S. Atty.
(argued), George G. Rayborn, David R
Nissen, Asst. U. S. Attys., Robert Mey-
er, U. S. Atty., Los Angeles, Cal., fer
plaintiff-appellee.
Befcre BARNES, ELY and WAL-
LACE, Circuit Judges.
WALLACE, Circuit Judge:
Appellants Robert Butler and Ted
Dean Butler (unrelated) were chargc<é
both with conspiracy to possess for sal:
and to sell dangerous drugs (amphets-
mine tablet3 and barbiturate capsules) it
violaticn of 21 U.S.C. § 331(q) and }:
U.S.C. § 371, and with conspiracy t
conceal, transport and sell heroin, in vic-
lation of 21 U.S.C. § 174 and 18 U.S.C. !
371. Appellants Vincent Arias, Manuc.
Rodriguez and Charles King wer
charged culy in the conspiracy to pos
sess for sale and to sell dangerous drug*
The trial court, after defense motions
severed the trial on the dangerous dru:
count from the trial on the count relat-
ing to heroin. The jury returned 2
guilty verdict as to each defendant 3:
the conclusion of both trials. Appellan‘
together charge sixty-two errors in th:
appeal.
TRIAL OF THE BUTLERS ON TE:
HEROIN COUNT
{1] The Butlers allege error of co
stitutional dimensions based upon t
introduction into evidence of vario+'
taped telephone conversations that to
place between them and John Durden, *
rating, unindicted co-conspirator.!
ith Durden’s consent, the recordings
ere made by connecting the telephone
ip was using with a tape recorder.
there is no error. In United States v.
rite, 401 U.S. 745, 91 S.Ct. 1122, 28
4 453 (1971), the Supreme Court
proved the testimony of government
yqents who related warrantless electroni-
ally monitored conversations between
ie defendant and a consenting inform-
nt, and stated that the Fourth Amend-
uit “. . + affords ro pretection to
wrongdoer’s misplaced belief that a
person to whom he voluntarily confides
sis wrongdoing will not reveal it.’ 401
US. at 749, 91 S.Ct. at 1125. See also
Hoffa v. United States, 385 U.S. 293, 87
s(t. 408, 17 L.Ed.2d 374 (1966) ; Lewis
United States, 385 U.S. 206, 87 S.Ct.
4,17 L.Ed.2d 312 (1966); Lopez v.
United States, 373 U.S. 427, 438-439, 83
sCt. 1381, 10 L.Ed.2d 462 (1963).
2,3] The Butlers further contcnd
tut their rights to counsel and to be
fee from self-incrimination were viol:t-
dd by the unseen and unheard monilor-
ing of their conversations. They
nisent the interesting argument that,
ine Durden was calling them at the re-
west of government narcotics agents,
ty had a right to be warned of the:r
tight to counsel before they spoke, citing
‘assiah y, United States, 377 U.S. 291,
4 S.Ct. 1199, 12 L.Ed.2d 246 (1964)
ud Escobedo v. Illinois, 378 U.S. 47S, 84
SCt. 1758, 12 L.Ed.2d 977 (1964). Ap-
yllants have failed to appreciate the ra-
‘onale of the holdings in those cases.
‘side from other reasons at the time of
‘e recorded telephone calls, the record
“#$ not demonstrate appellants had been
odicted and were represented by counsel
Sin Massiah; nor are the facts of this
= comparable with Escobedo where
? investigation had reached the “accu-
‘ory’ phase, the defendant had been
“rested and his request for an attorney
“nied. In this case, appellants were
; “arly suspected of criminal activity
UNITED STATES v. KING ry 5
Cite us 472 F.2d 1 (1973)
and were being investigated. To grant
a right to counsel under such circum-
stances, including a right to advice of
such a right, would be to mutate a con-
stitutional right into a denial of the
right of the public to have criminal ac-
tivity thwarted. There is no right to
counsel while one is committing a crime.
Grier v. United States, 345 F.2d 523,
524 (9th Cir. 1965).
{4] The Butlers also assert that the
trial court committed reversible error by
allowing the jury to hear tapes of and
simultaneously read transcripts of Dur-
den’s half of the recorded conversations,
contending thet “a great mass of preju-
dicial hearsay” was thereby allowed into
evidence. No particulars of the “great
mass” were pointed out by counsel.
While it is true that-a few of Durden’s
statements contained narrative state-
ments of events not strictly in further-
ance of the conspiracy, none of those
statements could reasonably be said to
be so prejudicial as to constitute reversi-
ble error. The court made a very me-
ticulous effort to excise all such narra-
tives which, in its judgment, could be
construed to be irrelevant, and refused
to allow the transcripts into evidence,
thereby avoiding any potential reinforce-
ment of Durdgen’s half of the conversa-
tions. For the Judge to have excised all
of Durden’s half of the discussions
would have rendered the recorded con-
versations, which were legitimate evi-
dence, unintelligible.
Except as indicated later, we find the
remainder of the arguments raised by
the Butlers regarding the trial on the
heroin count to be devoid of merit.
THE DANGEROUS DRUG TRIAL
I
All of the appellants claim that they
were prejudiced by misconduct of the
prosecutor. The principal witness for
the government was John Durden who
had been caught by federal narcotics
Appellant King asserts the same error was committed in his trial involving dangerous drugs.
472 FEDERAL REPORTER, 24 SERIES
ts and apparently decided to cooper- Il
ty assisting the agents in their ef- All of the appellants challenge the ad. .
wis to secure evidence against his fel- mmission into evidence against them of |
conspirators in hopes of receiving certain items seized by the police: a '
jent treatment for himself.* _ Dering ledger taken from the purse of Mrs. ;
wurse of the trial, Durden’s credi- Rodriguez, the wife of co-defendant :
jity was frequently and vigorously at- yanuel Rodriguez, various scraps of pa-
One of the principal lines of a3- ner with writing thereon taken from a
iit comprised asking Durden whether trash container in front of the home of
in fact the pending indictment against Teo Lovato, an indicted co-conspirator
im was going to be dismissed in consid- who fled before the trial, and two ledg-
ration of his testimony against the de- ors and some papers seized from a foot-
ndants, To this question, he answered jockey found in the garage of Leo Lova-
“no.” to. The bases of attack are that the
items were secured by illegal searches -
and seizures and should have been sup-
pressed and that the items lacked any
foundation or authentication and were |
inadmissible. :
woo em ee eee
a
(5] Appellants argue that, by allow-
ing such testimony to go uncorrected,
the prosecutor was acquiescing in the
iwing use of false evidence in the
namner forbidden by Napue v. Illinois,
“40 US. 264, 79 S.Ct. 1173, 3 L.Ed.2d {7] As to the search of Lovato’s
17 (1959), and more recently con- trash container and locker, the trial
demned in Giglio v. United States, 405 court correctly ruled that the Butlers
US, 150, 92 S.Ct. 763, 31 L.Ed.2d 104 and Arias lacked standing to move for
(1972). However, such an argument is suppression.s Neither the Butlers nor
based upon the premice that a promise Arias had any proprietary interest in
oidismissal had definitely been made to the items in question, nor were they per-
Durden and that this alleged promise was = sons against whom the searches in ques- .
known to the prosecution. The govern- tion were directed. Alderman v. United
went has at all times denied sucha prom- States, 394 U.S. 165, 173-175, 89 S.Ct. .
i, and there is no evidence in the rec- 961, 22 L.Ed.2d 176 (1969); United
ord to the contrary. States v. Shea, 436 F.2d 740 (9th Cir.
1970); United States v. Toliver, 433 F.
(6) As a corollary to their “false ev- 94 867 (9th Cir. 1970), cert. denied, 401
idence” argument, appellants contend YS, 913, 91 S.Ct. 882, 27 L.Ed.2d 812
that the trial court committed reversible (1971).
error by not allowing them to argue to
the jury that Durden’s testimony was (8] Regarding the ledger book seized
not worthy of belief since he had keen from Mrs. Rodriguez, both appellant
pemised a dismissal if he testified Rodriguez and his wife subinitted affi-
against the defendants. The trial judge davits in connection with the pre-trial
stated he would allow counscl to argue motion to suppress, swearing that the
that Durden had great expectations of a ledger book belonged to Manuel Rodri-
dismissal as anyone in a similar position guez. Assuming, without deciding, thst
would have. Under the circumstances, it Rodriguez did have standing to move to
was not unduly restrictive to prevent suppress, examination of the circum:
counsel from arguing that a dismissal stances surrounding the seizure reveals
was in fact forthcoming. that the police did not overstep th
2 The Butlers and Rodriguez assert in their 3. Rodriguez also moved to suppress the ma-
briefs, and the government has not de- terinl taken from Lovato’s footlocker.
nied, that about two months after the Apparently the trial judge never ruled op
convictions challenged here, the inidict- Rodriguez's motion.
ment agsinst Durden was dismissed by
wike government.
Se
punds set by the Fourth Amendment.
jguez was arrested pursuant to in-
mation that there was a warrant for
,js arrest for federal narcotics laws vio-
ytions. At that time Rodriguez was sit-
og in a car in a parking lot along with
yjs wife and son; the latter was in the
jriver's Seat. After the arrest of Rodri-
net, he and his son were questioned re-
aiding the registration of the vehicle.
te son said the car belonged to his fa-
get, Whereas Rodriguez stated that he
is borrowed the vehicle from a friend.
, radio check revealed that the license
sgtes on the vehicle were registered to
other vehicle. Mrs, Rodriguez and the
on were questioned further regarding
ine vehicle's registration and, upon their
ailure to give a satisfactory explana-
sion, were placed under arrest for suspi-
jon of grand theft auto. Pursuant to
vat arrest, Mrs. Rodriguez was subse-
yuently “booked,” at which time the con-
vnts of her purse were inventoried and
the ledger in question was recovered.
Sen though subsequent investigation
wealed that the car was not in fact sto-
on, it is clear that the officers had
swbable cause to believe that a crime
‘nd been committed by all three of the
Ndriguezes, Which, of course, provided
sal justification for their arrest.
tek v. Ohio, 379 U.S. 89, 91, 85 S.Ct.
818 L.Ed.2d 142 (1964). A werrant-
s search of personal possessions at the
‘ation house pursuant to a valid arrest
“es not violate one’s Fourth Amend-
sent rights. See, for example, Charles
- United States, 278 F.2d 386, 388 (9th
ir. 1960).
Counsel for Rodriguez cites Whiteley
Warden, 401 U.S. 560, 91 S.Ct. 1031,
4 LEd.2d 306 (1971), arguing that the
testing officers could not base their
“rest of Rodriguez upon the mere re-
“tt received via radio that there was an
‘Standing warrant for Rodriguez's ar-
st. In Whiteley, a sheriff had secured
“atrest warrant based on his own con-
‘ory statement that Whiteley had bro-
“Nand entered a building, and then ra-
Pi a bulletin containing a description
_* the suspect, of the car he was driv-
UNITED STATES v. EING 7
Cite as 472 F.2d 1 (1973)
ing, and of the amount and type of mon-
ey he was suspected of taking. Acting
on the bulletin, an officer arrested
Whiteley, searched his car and recovered
damaging evidence against him. The
Supreme Court held that the warrantless
arrest based upon the radio bulletin
could not supply the element of probable
cause that the sheriff issuing the bulle-
tin lacked, and so ruled that the seized
evidence should have been suppressed.
{9} Here, at the time of Rodriguez's
arrest, there were two valid arrest war-
rants outstanding. One was issued by
the district court pursuant to the return
of an indictment charging Rodriguez
with the crime of which he was ulti-
mately convicted, and the other issued
by a magistrate upon an affidavit which
adequately set forth the facts underlying
the charging officer’s conclusions, and
so were sufficient to suppert an inde-
pendent judgment that probable cause
existed for Rodriguez’s arrest. See Spi-
nelli v. United States, 893 U.S. 410, 89
S.Ct. 584, 21 L.Ed.2d 637 (1969) and
Aguilar v. Texas, 878 U.S. 103, 84 S.Ct.
1509, 12 L.Ed 2d 723 (1964).
Ill
Aside from the question of the search,
it is argued that all of the items seized
lacked any foundation or authentication
and so were inadmissible against the ap-
pellants. The government failed to
present any proof that the writings were
in the handwriting of any of the appel-
lants, or of when the writings were
made.
[10,11] It is the function of the
trial court to determine whether prof-
fered evidence has enough prima facie
trustworthiness to warrant its consider-
ation by the jury, and generally the suf-
ficiency of a showing of authenticity of
a writing sought to be introduced into
evidence is a matter within the discre-
tion of the trial judge. Arena v. United
States, 226 F.2d 227, 235 (9th Cir.
1955). Appellants insist that the mere
contents of a writing which is purported
to be authored by a particular person
ye insufficient evidence of genuineness.
ye 7 J. Wigmore, Evidence § 2148 (3d
aj, 1940). However, circumstances ex-
trinsic to the document may point with
afficient certainty to the person or per-
sgn who created it to allow the jury to
onsider the document. See, for exam-
pe, United States v. Sutton, 133 U.S.
spp.D.C. 208, 426 F.2d 1202, 1207 nn.
436 (1969) and cases cited therein.
When Leo Lovato was placed under
yrest at his residence, and in response
») inquiry about dangercus drugs, he
yinted out to the officers the location
in his attached garage where the drugs
wuld be found. The drugs were in box-
ss and a footlocker, the latter also con-
uining two ledgers and various papers.
Tre contents of the ledgers lead one to
the obvious conclusion that they were
words of a drug business. One of the
dgers seized from Lovato’s locker ap-
pars to contain a running account of
distribution to the co-conspirators; un-
éreach of their names, cach entry is
duted, units of “R” and “W” or in some
aes “Reds” and “Whites” are recorded,
and dollar amounts are noted next to the
atries. The otber ledger cont.ins simi-
lar notations, but with the additional en-
tries of, e. g., “C#1," “C#2,” ate., “Pd
$20 tip C#8," “Pd $250 to driver” and
“Pd in full.” Similar notations were
contained on the slips of paper found in
Lovate’s footlccker. Also, some of the
entries corresponded exactly with trans-
actions about which there was independ-
ent evidence in the form of tape-record-
ed conversations and testimony of John
Durden. Considering the reality that
proof of conspiracies must often reiy
heavily upon circumstantial evidence
(See Diaz-Rosendo v. United States, 357
F.2d 124 (9th Cir.), cert. denied, 385
US. 856, 87 S.Ct. 104, 17 L.Ed.2d 8&3
(1966), and Davenport v. United States,
260 F.2d 591, 598 (9th Cir. 1958)], and
_ given the circumstances of this case, we
4 C. McCormick, Evidence § 191, p-. 403
(1954). See also 7. J. Wizmore, Evi-
dence § 2160 n. 4 (3d ed. 1910), and
cited. Wigmore is cited as sole
472 FEDERAL REPORTER, 2d SERIES
find ourselves in agreement with Profes-
sor MeCormick:
Should not the practice of accepting
as prima facie genuine a document
which comes from a natural custody
be extended beyond the field of public
duty, and be recognized for writings
found in private custody? It seems
that it should, but that here the prac-
tice should be discretionary and that
if the judge finds that the purport of
the writing 2nd the fact that it was
found in a place and custody natural
for such a paper, and the other at-
tending circumstances, make its genu-
ineness substantially probable, it
should come in.*
The same conclusion was reached in Peo-
ple v. Ramsey, 83 Cal.App.2d 707, 189
P.2d 802 (1948) in dealing with a simi-
lar situation. At defendant’s home,
where an alleged abortion occurred, a.
looseleaf notebook was found in a cup-
bourd beside a telephone where an ap-
peintment book would usuaily be kept.
The notebook contained entries showing
a date, time, name, address and tele-
phone number which were consistent
with the alleged abortion. The court
ruled that the notebook was admissible,
despite the fact that neither authorship
nor when the entry was made was
shown.
[12] Since the ledgers and other pa-
pers taken from Lovato’s footlocker are
technically hearsay, an alternate theory
of admissibility is that they constituted
an admission by Lovato. Iere, Lovate
in effect identified the documents as his
own by dircciizng Use agents to his
“business storeroom” where they were
found with his contraband merchandise.
The circumstances here provide a much
more reliable index of genuineness thar.
for example, an unsigned letter found 09
a defendant’s premises with no inde
pendent evidence to demonstrate a meat
authority in United States v. Imperial
Chemical Industcies, Ltd. 100 F.Supp-
ho4, 513 (S.D.N.Y.1951).
s connection. See Poy Coon Tom v.
oq States, 7 F.2d 109 (9th Cir.
a
43,14) Admissibility as to Lovato
not end the inquiry—the question
* anissibility as to appellants re-
a However, the trial judge proper-
_gstructed the jury that, if they found
anspiracy did exist and that a defend-
{was 8 member of the conspiracy,
wa the statements and acts of those
nd to be members of the conspiracy
, lovato) may be considered by the
«sas evidence in the case as to any
‘ndant found to have been a member,
-yided such statements or acts were
ywwingly made or done during the con-
ance of the conspiracy, and in fur-
' Taken in the light most favorable to the
grermment (Glasser v. United States,
45 U.S. 60, 80, @ S.Ct. 457, SG L.Ed.
iN) (1942)) the other evidence with re-
wt to the dangerous drug conspiracy
+23 as follows :
Amphetamines and barbiturates in the
‘am of pills were packaged in plastic
‘ax, which were concealed in the pan-
cng of cars, and the “load” cars were
‘iven aeross the berder to various
“sees, apparently at the direction of
| iseph Damian Lovato (hereinafter “Joc
‘vato”). Also at the direction of Joe
tavato, generally defendant Hilaria Agui-
+, known as “Rosa,” would call Durden
it! tell him where to pick up an incom-
wing load car.
lutden would then pick up the load
*, dismantle it to retrieve the contra-
‘vl, hide the- contraband, and return
‘eload car to the same place it was pick-
‘up. Then Durden would generally
“sk back with Rosa, who informed him
~*hom he was to distribute the drugs,
‘"arently on a consignment basis.
_ ‘wonling to Durden’s testimony, he
™“ met Mavuel Rodriguez in the com-
“3 of Joe Lovato. Joe Lovato asked
“t4en to hold some drugs for him while
* Joe) made a trip into Mexico, to
‘'-t Durden agreed. Manuel Rodriguez
7 took thirty bags of “reds,” each con-
ii. five thousand pills, from his own
: — Placed them in the trunk of Dur-
ws5
Sy also testifed that he distributed
* of pills to Manuel Rodriguez on a
* of occasions. Durden also testi-
‘ vee had supplied Durden
plik 261m
UNITED STATES v. KING G
Cite as 472 F.2d 1 (1973)
therance of some object or purpose of
the conspiracy. In this case, the evi-
dence was overwhelming that a danger-
ous drug conspiracy and a heroin con-
spiracy did exist, and the majority of
the testimony, including the tape-reccrd-
ed evidence in both the dangerous drug
case and the heroin case could easily
have supported a finding by the jury
that Leo Lovato was a member of each
of the conspiracies. The contents of the
ledgers and other papers appear on their
face to have been written during the
course of the conspiracy ard in further-
ance of the objects of the conspiracy.
Such evidence, coupled with the inde-
pendent evidence cf each of the defend-
ants’ participation in the conspiracy 5
Accordivg to the testimony of narcotics
Agents Sternaman aod Tarallo, while sur-
veiling the residence of Joe Lovato,
Rodriguez was scen in the company of
Vincent Arias, exiting Lovato’s residence,
Rodriguez and Arias drove away together,
went into a restaurant and returned in a
while to Lovato’s residence. While the
tvo were at the restaurant, a dark brown
ledger was observed by Agent Tarallo on
the seat of the vebicie the two were in.
A fellow employee of Rodriguez testified
thut Rodriguez got up abruptly from an
interview at his company’s personnel of-
fice upon sighting a police car through the
window and trotted away. -The officer
who arrested Rodriguez confirmed the tes-
timony regarding his attempted flight.
A fingerprint expert testified that Rod-
requez’s fingerprints appeared on four
separate pages of a Icdger book recovered
from the purse of his wife, who was
also arrested with Rodriquez. Ageut Ta-
rallo testified that the same ledger book
was the one he had earlier seen on the
seat of the vehicle which Arias and Rodri-
guez had taken to the restaurant from Joe
Loveto’s residence.
The ledger book taken at Rodriguez’s ar-
rest contained lists of “R” and “W”"
(“Whites” is a term which also is used in
that exhibit) under peoples’ names, dated
within the period of the conspiracy.
These dates substantially coincided with
the dates of deliveries to Leo Lovato
ns evidenced by the latter's ledgers.
Agent Sternaman testified that on April
1, 1970, he and Agent Clemente arrived
as Manvel Kodrigucz was being booked
into jail. He examined the ledger book
which had been taken from Mrs. Rodri-
.
—
See Sa ee
BA
10
Note 5—Continued
juer, told the jailers of his interest in it
ns evidence and of his intention to take it
ater. Sternaman thereupon advised Rod-
riguez of his rights and ascertained that
Rodriguez understood these rights. Stern-
aman, while leafing through the bovk,
asked Rodriguez what the “W" and “R”
stood for. Rodriguez responded by smil-
ing and shrugging. When asked if the
jetters stood for drugs, Rodriguez shrugged
and smiled faintly again. (The court in-
structed that the jailhouse interview testi-
mony was to be taken only as to Rodri-
guez.)
Durden testified that Arias received five
separate loads of amphetamines and bar-
biturates, totalling nearly a million pills
from Durden from the middle of August
through the first week of September,
1969. Durden also testified that Arias
called him several times during the period
of the conspiracy and inquired as to
whether Durden had anything on hand.
Durlen testified that Charles King came
to Durden in June, 1969, and received
twenty thousand or twenty-five thousand
reds. Two more loads of five thousand
or ten thousand pills were distributed by
Darden to King in Angust, 1969.
In a taped telephone conversation be-
tween Durden and Robert Butler, in re-
sponse to inquiry by Durden as to wheth-
er Lovato would have “something” for
Durden, Butler replied, “He's all empty
; he only got those 30, 30, 35
I think. The ones he get frem those
other people. And be hasn't got anything
in since then. He bought these from an-
other source and these people charged him
5 over what he normally was going.”
Robert Butler also stated to Durden, “I
told him I'm going over there with him
nert time trip coming up here
you know.”
In another conversation with Durden,
Robert Butler asked Durden whether he
could get some older model cars for Joe
Lovato and Robert Butler.
Durden testified that he had seen Rob-
ert Butler at one time accompanying Joe
Lovato, and that there was conversation
between Butler and Lovato about load
ears. In response to a statement by
Lovato that another load car would be in
that night, Butler replied that he wanted
either one hundred thousand er two hun-
dred thousand “reds” and thereafter en-
gaged in a conversation with Lovato
about such a drug transaction. Lovato
then made a telephone call, asking the
other party whether there were “20 biz
ones or 20 pillows" available. Shortly
thereafter, Leo Lovato arrived and im-
diately left with Robert Butler. Soon
472 FEDERAL REPORTER, 2d SERIES
therenfter, Leo and Robert Butler re-
turned, whereupon Butler made a tele-
phone call and asked for money and said,
“I have got the stuff.”
‘ed Butler was accompanying Durden
when he was arrested by undercover
Agent Sternaman for attempting to sell
Sternaman fifty thousand reds and fifty
thousand whites.
In their jail cell, Durden explained
Lavato’s dangerous drug operation to Ted
Butler. Butler expressed to Durden that
he had not previously been aware of what
had actually occurred but that as long as
he was involved now, he would like to get
fully involved in the operation. Durden
had not proposed that Ted Butler get in-
volved; Butler volunteered.
The day after Durden and Ted Butler
were released from jail, they went to a
telephone booth and, with Ted Butler
waiting in the car, Durden ealled Joe
Tavato. When Lovato told him there was
another car in, Durden told him he would
eall back. Durden then told Ted Butler
about the car and suggested that they
find some place new to store the load;
Butler agreed. The two meu drove to an-
other person's house to find if they could
keep the drags there, but the individual
was not there. Since they were leery
that agents might be following them, Dur-
den decided that it would be best not to
store this load.
The weekend after Durden was released
from jail, he met with Joe Lovato and
Vineent Arias and told them that Ted
Sutler had been arrested with Durden.
Ted Butlee soon became involved with
Tavato in acquiring dangerous drugs.
Ted Butler once presented Durden with
$580 to pay to Joe Lovato as one payment
for Butler's prior acquisition of twenty
thousand barbiturates. The total payment
was $1,100; Butler had’ previously paid
Lovato S520.
On November 19, 1969, Durden called
Joe Lavato. Lovato told Durden that
there were three barrels of reds and one of
whites across the border which he wanted
somebody to zgo‘down and pick up. Lova-
to waated Durden to get a ear in which
to “hide them”. Durden called Ted But-
ler, who stated that he would pick up the
load with Durden.
The independent evidence of participa-
tion in a conspiracy to conceal, transport
and sell Lerein by the Batlers is similarly
persuusive. Durden testified that when
he first met Robert Butler through Joe
Lovato (who was indicted but failed to
appear for trial) on October 30, 1969,
heroin trade was discussed. The same
subject was discussed by Robert Butler
and Durden alone again the next day, and
likely that the jury could have under-
stood the statement to mean that Rodri-
quer Was actually going to commit mur-
jer. The full statement was, “The other
thing is that Manuel, they don’t play
vith Manuel and Manuel might get in
some trouble you know, that way. He'll
go tonight and kill somebody or some-
thing.” It seems apparent that Joe Lo-
sato was merely trying to communicate
that Manuel (Rodriguez) was a bit too
impulsive to stay out of trouble as far
ys some were concerned, so that he was
not to be trusted fully. The second rea-
son is that the trial judge immediately
instructed the jury to disregard the
statement about killing. In our view,
the combination of these two factors
made the error, if there was any, harm-
Jess.
Vv
All of the appellants argue that the
evidence taken in the light most favar-
able to the government showed the exist-
ence of multiple conspiracies rather than
a single conspiracy and that, therefore,
the judge committed reversible error by
refusing to instruct the jury on the pos-
sibility of finding raultiple conspiracies.
Principal reliance is placed upon Kot-
teakos v. United States, 328 U.S. 750, 66
S.Ct. 1239, 90 L.Ed. 1557 (1946), where
the Supreme Court found that only one
of the defendants had participated in a
number of separate and distinct conspir-
aces with a number of different indi-
viduals, and so there was no conspira-
torial nexus tying all of the defendants
together in a conspiracy commen to all.
The rationale of the decision was that it
iwas highly prejudicial to the defendants
to allow all the evidence of the separate
‘crimes to be introduced against all of
-the defendants to prove a single crime.
{18] We think that this case is con-
trolled by the law set forth in Blumen-
sthal v. United States, 332 U.S. 539, 68
S.Ct. 248, 92 L.Ed. 154 (1947). In that
F case, three salesmen separately agreed to
edistribute illegal whiskey for two other
defendants, who had an agreement be-
472 FEDERAL REPORTER, 2d SERIES
tween themselves; no salesman knew ¢,
had any dealings with any other sales.
man and each was geographically far
from the others. The Court distin.
guished the Kotteakos case and found
that only one conspiracy existed:
By their separate agreements, if such
they were, they became parties to the
larger common plan, joined together
by their knowledge of its essential ;
features and broad scope, though not
of its exact limits, and by their com.
mon single goal. 332 U.S. at 558, 68
S.Ct. at 257.
Here, the evidence was very persuasive
that most of the coconspirators not only
knew of the others, but that all knew of
and participated in the illegal plan of
distribution of the amphetamines and
barbiturates. Under such circum-
stances, we hold that it was not error
for the trial court to refuse to give an
instruction on the possibility of finding
multiple conspiracies.
VI
[19,20] During the course of the
trial, some of the attorneys for the de-
fense were occasionally excused for
short times to aitend to other matters.
Each time, other counsel agreed to rep-
resent the interests of the absent attor-
ney’s client. Appellant King contend:
that such occasional “pinch hitting” de-
prived him of his right to counsel, or at
least of his right to effective assistance
of counsel. However, no objections were
made by King during the course of the
trial to this procedure; on the contrary.
he specificaliy consented to it the two
times that his counsel was absent. Al-
though such a practice may be ques:
tioned, it is well settled that where, a
here, there was no plain error, one may
not raise on appeal that to which he did
not object at trial. United States *-
Markham, 440 F.2d 1119 (9th Cir.
1971); White v. United States, 315 F.2¢
113 (9th Cir.), cert. denied, 375 U.S.
821, 814 S.Ct. 58, 11 L.Ed.2d 55 (1963):
‘ant V. United States, 291 F.2d 746
ih Cir. 1961).
we find the remainder of appellants
rument to be without merit.
Affirmed.
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