# Petition for Writ of Certiorari — Butler v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0635%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 864 ## Text 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 — 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 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 SMOTTOZ 6T | se soesodep pue skes ‘uzoms Atnp Suteq ‘uteg preuoy QT | LT ( seTeSuy sot zo Ajzunoo ss ( ' 9T ( BTUZOFTTeD FO 92eIAS |YW UT ¢ zUeTTSEddy- zuepuezeg 5T ( ( ( | ( ‘ZENOINGOU TAANWK | ot NIV GIVNOY 4ZO LIAVGIaay ( . 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