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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