Petition for a Writ of Certiorari — Gomez v. United States

LIBRARY.

SUPREME COURT, U.S

IN THE

Supreme Court of the Anited States

October Term, 1973

SLES- 134

JOSEPH RAYMOND GOMEZ,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH JUDICIAL CIRCUIT

William L. Keating

1226 Bannock Street

Denver, Colorado 80204

Attorney for Petitioner

ae BRADFORD PRINTING. DENVER

i

TABLE OF CASES CITED

Coleman v. Alabama, 399 U.S. 1 (1970)

Blue v. United States, 342 F.2d 894 (D.C. Cir. 1964).. 16

Dancy v. United States, 361 F.2d 75 (D.C. Cir. 1966).. 16

Davis v. United States, 413 F.2d 1226 (Sth Dir. 1969) 12

Gardner v. United States, 407 F.2d 1226 (D.C. Cir.

PU scniisinssisisiibstecitiasieibacdissaledaeninanaeepliee tana teeaee ane 16

United States v. Brumley, 466 F.2d 911 (10th Cir

II eccssaccciiiwiinwisincisiicanunaconiemmmnmmatcesa dame eae meee 16

United States v. Bryant, 439 F.2d 642 (D.C. Cir

DG execincacvssanisisistudianicstiiiacbiaagadapenmamananntnaa cea 12

United States v. Crisona, 416 F.2d 107 (2nd Cir

RUD nsnnisnecictsansninicsinidiinjaseabiamstongnaa aaa aes fz, §3

United States v. Curry, 278 F. Supp. 508 (ND Ill

DOTY ninasnvsnscnestncntppusiissisiisiiiasananiniiiggsiaamipiiaaaneat a aactgn es 14

United States v. Kysar, 459 F.d 422 (10m Cir. 1972)..

United States v. Milano, 443 F.d 1022 (10th Cir.

| | | Om TORR ITN TENE 16

United States v. Morrison, 43 F.R.D. 516 (N.D. Ill

DY xncisaccsneccsuncissssicsliieiinmididmppeaieesvieiean caine 13

United States v. Reid, 43 F.R.D. 520 (N.D. Ill. 1967).. 14

OTHER AUTHORITIES

5S UG. GRC TED hiiantcieien 5, 6, 18

RR Me ee NEN | WOT 13

American Bar Association Standards Relating to

Discovery and Procedure Before Trial,

I FOIE insincere aie eden 14

be arent gn RI HRD ON REET ITN PERS i RENAN ELE BL SE AE ET RT ee

: . — v- ve =

ii

Page

Federal Rules of Criminal Procedure,

ON a 2, $2, 13,95

TS RN aR ee enter aie SUR a EE SEROMA aL oa 4,18

Wright, Federal Practice and Procedure,

ee BD Bey Bre I oases ices sincsenececcceessatkesesennesnens 13

Local Rules of Practice of the United States District

Court for the District of Colorado,

a 14

INDEX

ERIE ei ERE HONOR DETTE OREN 1

eel ae el SCNT Ss 18 PE ee NT NNT EO 2

Questions Presented for Review ..................-2.------000--0--+ 2

Statutory Provisions Involved ......................----sc-:---+0- 2

Bn ee acs acatetlavcucins 5

POINT I - The verdict rendered below must be

reversed by reason of the failure and

refusal of the government to permit

Defense Counsel to inspect and copy

Petitioner’s Pre-Arrest Statement made to

an undercover agent in accordance with

Federal Rules of Criminal Procedure, Rule

BO OG BIE I Bn cereciiveiscsesnsconerevenssee 11

POINT II - The Court erred in denying Petitioner’s

Motion for a new Preliminary Hearing or

in the alternative dismissal of the case on

the grounds that the usefulness of valuable

evidence to which Petitioner was entitled

had been destroyed due to faulty

mechanical recording. ..................-.--.--+--++ 15

RDP ISS RAE RT or oR NSE ADR EEE 18

IN THE

Supreme Court of the Anited States

October Term, 1973

No.

JOSEPH RAYMOND GOMEZ,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH JUDICIAL CIRCUIT

TO: Chief Justice and the Associate Justices of the Su-

preme Court of the United States:

Your Petitioner, Joseph Raymond Gomez, hereby peti-

tions for a Writ of Certiorari to review the Judgment of the

United States Court of Appeals for the Tenth Judicial Cir-

cuit which affirmed the Judgment of the United States Dis-

trict Court, District of Colorado, connecting the Petitioner

of unknowingly and intentionally distributing and aiding

and abetting in the distribution of a quantity of heroin in

violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. §2, re-

spectively.

OPINIONS BELOW

The opinion of the Tenth Circuit Court of Appeals has

not been reported in the Federal Reporters. A copy of the

opinion is appended to this Petition (Appendix A). The

—_

Court’s order denying Petitioner’s Motion for a Rehearing

is appended hereto (Appendix B).

JURISDICTION

The order sought to be reviewed was made and eiitered

on the 7th day of September, 1973. An order denying a

timely motion for rehearing was made and entered on Octo-

ber 2, 1973. The statutory provisions believed to confer

jurisdiction on this Court to review the Judgment in ques-

tion by Writ of Certiorari is 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the verdict below must be reversed by reason

of the failure and the refusal of the government to allow

discovery of Petitioner’s Pre-Arrest Statements made to a

government undercover agent.

2. Whether the District Court erred in denying Petition-

er’s Motion for a New Preliminary Hearing or in the alter-

native Dismissal of the Case on the grounds that valuable

evidence to which Petitioner was entitled has been seriously

damaged due to faulty mechanical recording of the earlier

preliminary hearing.

STATUTORY PROVISIONS INVOLVED

Federal Rules of Criminal Procedure, Rule 16, Discovery

and Inspection (a); Defendant's Statements; Reports of Ex-

aminations and Tests; Defendant's Grand Jury Testimony.

Rule 16. Discovery and Inspection (a) Defen-

dant’s Statements; Reports of Examinations and

Tests; Defendant’s Grand Jury Testimony. Upon

motion of a defendant the court may order the

attorney for the government to permit the defen-

—

dant to inspect and copy or photograph any rele-

vant (1) written or recorded statements or con-

fessions made by the defendant, or copies thereof,

within the possession, custody or control of the

government, the existence of which is known, or

by the exercise of due diligence may become

known, to the attorney for the government, (2)

results or reports of physical or mental examina-

tions, and of scientific tests or experiments made

in connection with the particular case, or copies

thereof, within the posssession, custody or control

of the government, the existence of which is

known, or by the exercise of due diligence may

become known, to the attorney for the govern-

ment, and (3) recorded testimony of the defen-

dant before a grand jury.

(g) Continuing Duty to Disclose; Failure to

Comply. If, subsequent to compliance with an

order issued pursuant to this rule, and prior to or

during trial, a party discovers additional material

previously requested or ordered which is subject

to discovery or inspection under the rule, he shall

promptly notify the other party or his attorney or

the court of the existence of the additional mate-

rial. If at any time during the course of the pro-

ceedings it is brought to the attention of the court

that a party has failed to comply with this rule or

with an order issued pursuant to this rule, the

court may Order such party to permit the discov-

ery or inspection of materials not previously dis-

closed, grant a continuance, or prohibit the party

from introducing in evidence the material not dis-

or meee

closed, or it may enter such other order as it

deems just under the circumstances. As amended

Feb. 28, 1966, eff. July 1, 1966.

Local Rules of Practice of the United States District

Court for the District of Colorado, Rule 311, Pretrial Discov-

ery And Inspection ( Appendix C)

Federal Rules of Criminal Procedure, Rule 5.1, Prelimi-

nary Examination,

Rule 5.1 Preliminary Examination. ... (c) Rec-

ords. After concluding the proceeding of the fed-

eral magistrate shall transmit forthwith to the

clerk of the district court all papers in the pro-

ceedings. The magistrate shall promptly make or

cause to be made a record or summary of such

proceeding.

(1) On timely application to a federal magis-

trate, the attorney for a defendant in a criminal

case may be given the opporiunity to have the

recording of the hearing on preliminary examina-

tion made available for his information in

connection with any further hearing or in connec-

tion with his preparation for trial. The court may,

by local rule, appoint the place for and define the

conditions under which such opportunity may be

afforded counsel.

(2) On application of a defendant addressed to

the court or any judge thereof, an order may issue

that the federal magistrate make available a copy

of the transcript, or of a portion thereof, to

defense counsel. Such order shall provide for

prepayment of costs of such transcript by the

defendant unless the defendant makes a sufficient

—

affidavit that he is unable to pay or to give

security therefor, in which case the expense shall

be paid by the Director of the Administrative

Office of the United States Courts from available

appropriated funds. Counsel for the government

may move also that a copy of the transcript, in

whole or in part, be made available to it, for good

cause shown, and an order may be entered grant-

ing such motion in whole or in part, on appropri-

ate terms, except that the government need not

prepay costs nor furnish security therefor. Added

April 24, 1972, eff. Oct. 1, 1972.

18 U.S.C. § 3060, Preliminary Examination.

§3060. Preliminary examination. . . . (f) Pro-

ceedings before United States magistrates under

this section shall be taken down by a court

reporter or recorded by suitable sound recording

equipment. A copy of the record of such proceed-

ing shall be made available at the expense of the

United States to a person who makes affidavit

that he is unable to pay or give security therefor,

and the expense of such copy shall be paid by the

Director of the Administrative Office of the

United States Courts. As amended Oct. 17, 1968,

Pub. L. 90-578, Title III, §303(a), 82 Stat.

1117.

STATEMENT OF THE CASE

(All references to the record below will be Volume num-

ber followed by page number).

On August 4, 1972, a Complaint was filed in the United

States District Court, District of Colorado, alleging that on

June 23, 1972, Petitioner violated 21 U.S.C. §841(a)(1)

— vm

and 18 U.S.C. §2. (Vol. V 002). Pursuant to that Com-

plaint, and in accordance with Federal Rules of Civil Proce-

dure, Rule 5(c), a Preliminary Hearing was held on August

17, 1972, whereupon the United States Magistrate found

probable cause to bind the case over for trial. (Vol. V 011).

On August 24, 1972, the Federal Grand Jury indicted

Petitioner on two counts of knowingly and intentionally dis-

tributing and aiding and abetting in the distribution of a

quantity of heroin in violation of 21 U.S.C. §841(a)(1)

and 18 U.S.C. §2. Count one was alleged to have occurred

on June 22, 1972 and count two was alleged to have oc-

curred on June 23, 1972. (Vol. V 003). Subsequently, Peti-

tioner attempted to obtain a written transcription of the

Preliminary Hearing, which had been electronically re-

corded pursuant to 18 U.S.C. $3060. Due to mechanical

difficulties with the recording equipment, the records of the

Hearing were not susceptible to accurate written transcrip-

tion in that various portions of the recordings were incom-

plete and inaudible.

On October 26, 1972, Petitioner moved the District

Court to enter an Order dismissing the case or in the alter-

native granting a new preliminary hearing on the grounds

that valuable evidence had been lost through no fault of the

Petitioner. (Vol. V 017). On October 27, 1972, a hearing

was held before the Honorable Fred M. Winner with regards

to the above-mentioned Motion. At this time, defense coun-

sel for Petitioner advised the Court that he was unable to

obtain an accurate written transcription of the mechanically

recorded Preliminary Hearing and that without this accu-

rate transcription the Petitioner would be deprived of sworn

testimony which would be beneficial to the Petitioner for

purposes of cross-examination at trial. (Suppl. Vol. I, 3).

The Court denied Petitioner’s Motion for a New Prelimi-

=

nary Hearing on the grounds that an indictment had been

returned on the same charges subsequent to the date of the

Preliminary Hearing and therefore Petitioner enjoyed no

right to a new preliminary hearing. (Supp. Vol. I, 10).

Also on October 26, 1972, Petitioner filed a Motion for

Discovery pursuant to Federal Rules of Criminal Proce-

dure, Rule 16, and Local Rule 31, seeking to discover,

among other things, “any written or recorded statements

and the substance of any oral statements made by the ac-

cused or his co-defendant.” In accordance with Local Proce-

dure, defense counsel and the Assistant U. S. Attorney held

meetings with regards to Petitioner’s request for Discovery

and in connection with those meetings the United States

Attorney submitted a letter on October 26, 1972 indicating

its position on the various requests for Discovery. The U. S.

Attorney granted several of the requests, denied several of

the requests as not required under Rule 16 or Local Rule 31,

and further with regards to the request for any written or

recorded statements and substance of any oral statements

made by Petitioner, stated, that “as previously stated, Mr.

Gomez made no post-arrest statements.” (Vol. V 060). On

October 27, 1972 at the above-stated Hearing before the

Honorable Judge Winner, Petitioner’s Motion for Discovery

was also heard. At that time, the Court inquired of the

Government whether it had any statements of the Peti-

tioner. At that time, the Government indicated that it had

no post-arrest statements of Petitioner. (Suppl. Vol. 1, 13).

On December 11, 1972, Petitioner and Co-defendant

Martinez were brought to trial on the above stated charges.

On December 12, 1972, at the beginning of the second

day of trial, Co-defendant Martinez’ attorney advised the

Court that his client was presently in Denver General Hos-

—

pital and unable to attend the trial. For this reason, Mr.

Martinez’ counsel moved for a mis-trial as to his client.

(Vol. II, 127). The Court granted the Motion as to Co-de-

fendant Martinez. (Vol. II, 128). At this time, counsel for

Petitioner informed the Court that he had intended to use

Mr. Martinez as a witness for the purpose of refuting the

testimony given by witnesses for the prosecution and inas-

much as Mr. Martinez was no longer available, also moved

for a mis-trial on behalf of Petitioner. (Vol. II, 128). This

Motion was denied. (Vol. II, 129).

The trial continued as to Petitioner. Agent Melvin B.

Ashton of the Bureau of Narcotics and Dangerous Drugs

testified that on June 22, 1972, Fred Sanchez approached

Petitioner in the area of 10th Street and Osage and pur-

chased two green balloons from him, which balloons alleg-

edly contained heroin. (Vol. II, 152-155). Count one related

to this alleged transaction and it is this count of which the

jury acquitted the Petitioner.

With regards to the alleged transaction on June 23, 1972,

Agent Ashton stated that he gave Sanchez $160.00. He fur-

ther testified that Sanchez approached Petitioner, who was

in his car in the area of 10th Street and Osage, and gave

Petitioner this money, after which Petitioner took two ob-

jects from his mouth and gave them to Sanchez. The objects

were determined to be balloons containing heroin. Ashton

stated that Petitioner left the area but returned shortly

thereafter. At this time, the passenger in the Petitioner’s car,

Co-defendant Martinez, gave Sanchez another balloon con-

taining heroin. Ashton stated that at both of these alleged

transactions on June 23, 1972, Co-defendant Martinez was

present in the Petitioner’s vehicle. (Vol. II, 167-177).

On direct examination, Agent Ashton stated that he saw

—

Petitioner at the Petitioner’s residence on June 30, 1972.

(Vol. II, 178). At this time, defense counsel requested a

hearing at the bench, at which time defense counsel ob-

jected to the admission of any statements made by Peti-

tioner to Agent Ashton on the grounds that these statements

had not been given to the defense in connection with their

Motion for Discovery. The Court permitted further ques-

tioning as to this issue, whereupon, Agent Ashton stated

that he asked Petitioner if he remembered him and Sanchez

from the delivery on June 23, 1972, to which Petitioner

answered in the affirmative. Defense counsel again objected

to any further testimony along this line and the Court sus-

tained the objection.

On December 13, 1972, the jury returned a verdict of

guilty as charged as to count two and the verdict of not guilty

as to count one.

The questions herein were raised as the trial court and on

appeal to the Court of Appeals. On direc, examination, Un-

dercover Agent Ashton was asked if he saw Petitioner

around the time of June 30, 1972 and after giving an af-

firmative answer was asked to describe the circumstances of

that meeting. At this time, counsel for Petitioner requested

a hearing at the bench at which he objected to the admission

of any statements made by Petitioner to Agent Ashton. ”

Mr. Fogel: If this entails a conversation between

Ashton and Gomez, it was my understanding that

the pre-trial conference in front of I think Judge

Winner that you were not going to introduce any

statements made by any defendant to any agent.

(Vol. II, 178).

— —

Over this objection, the Court permitted further questioning

as to the statement.

Q. What did you say to Defendant Gomez at that

time?

A. I asked him if he remembered me and Freder-

ick George Sanchez from the delivery which hap-

pened on the 23rd and he told me that he did. He

told me he remembered my vehicle.

Q. Did you direct your question specifically to

the Defendant, or did you direct your question to

the two men standing together, Mr. Martinez and

the Defendant?

A. Both men were seated in Mr. Gomez’ vehicle,

the black over green Chevrolet. I was on the driv-

er’s side and I was talking into the vehicle so both

men could hear.

Q. Okay, did you ask Mr. Gomez if he had any

heroin available at that time?

A. Yes, sir, I did. (Vol. IT, 180).

As indicated previously, Petitioner moved the District

Court to enter an order dismissing the case or in the alterna-

tive granting a new preliminary hearing on the grounds that

valuable evidence had been lost through no fault of the Peti-

tioner. (Vol. V, 017). (Supp. Vol. I, 3).

Motion for Discovery pursuant to Federal Rules of Crim-

inal Procedure, Rule 16 and Local Rule 31, was made and

hearing was held on this issue. (Supp. Vol. I, 13).

Motion for a Mis-trial was made on behalf of Petitioner,

(Vol. II, 128) and said Motion was denied. (Vol. IT, 129).

— | eo

All issues presented here were duly presented to the

Court of Appeals. (See Appendix A).

I. THE VERDICT RENDERED BELOW MUST BE

REVERSED BY REASON OF THE FAILURE

AND REFUSAL OF THE GOVERNMENT TO

PERMIT DEFENSE COUNSEL TO INSPECT

AND COPY PETITIONER’S PRE-ARREST

STATEMENT MADE TO AN UNDERCOVER

AGENT IN ACCORDANCE WITH FEDERAL

RULES OF CRIMINAL PROCEDURE, RULE 16

AND LOCAL RULE 31.

The issue presented here can be divided into two sec-

tions:

1. Is the summary of a pre-arrest statement made by a

Defendant to an Undercover Agent subsequent to the al-

leged crime discoverable under Rule 16(a) (1);

2. Was the failure and refusal to allow discovery in this

grounds for reversal.

The Court of Appeals, while recognizing that there are

divergent views regarding the discoverability of the state-

ment sought, declined to issue a ruling regarding that dis-

coverability. Rather, the Court merely held that any error

was not prejudicial. Petitioner respectfully urges that the

issue of whether or not he was prejudiced by the failure to

allow discovery is a question of law and should be deter-

mined by this Court. Additionally, the question of discover-

ability is one of major importance and should be determined

before the question of prejudice is met. This question of the

discoverability of this statement is an important question of

interpretation of the Federal Rules of Criminal Procedure

which has not been, but should be, settled by this Court.

—,

While Petitioner was provided with a copy of this sum-

mary of his alleged statement, it was not provided until after

the jury had been selected on the first day of trial. Petitioner

contends that this matter of presentation was not sufficient

to remedy the violation of the Rules of Discovery.

The purpose of the 1966 Amendment to Rule 16 was to

liberalize the previously restricted practice of pre-trial dis-

covery in criminal cases. The Notes of the Advisory Com-

mittee On Rules clearly state with regards to Rule 16 that

“The Rule has been revised to expand the scope of pre-trial

discovery.” Rule 16 makes no distinction as to the time

when statements are given with regards to their discover-

ability, and there is no indication in the Notes on the Advi-

sory Committee on Rules that pre-arrest statements were

not meant to be discoverable. At least three Circuits have

held that pre-arrest statements are covered by Rule 16 and

are therefore properly discoverable.

United States v. Bryant, 439 F.2d 642 (D.C. Circuit,

1971) held

We agree with the panel of the Second Circuit

that the Notes of the Advisory Committee on

Rules indicate that the amended rule was in-

tended to apply even to pre-arrest statements

made by a defendant during a course of his crime

and was meant to broaden materially the scope of

discovery available to a defendant.

See also, Davis v. United States, 413 F.2d 1226 (Sth Cir.

1969); United States v. Cirsona, 416 F.2d 107 (2nd Cir.

1969).

Inasmuch as the relevant statement made by the Defen-

dant was contained in an investigative summary made by

|

—. on

Agent Ashton, the next issue is whether this summary of the

Defendant’s statement, as cited above, constitutes a “state-

ment” within the Rule.

There is a split of authority as to how broadly the word

“statement” in Rule 16(a)(1) is to be interpreted. Some

Courts have defined “statements” in line with the definition

given in the Jencks Act, 18 U.S.C. §3500(e); that is, a

substantially verbatim recital of an oral statement. How-

ever, other Courts have ruled that inasmuch as the Advisory

Notes to Rule 16 specifically state that the purpose is to

expand the scope of discovery, coupled with the fact that

Rule 16(a)(1) covers a defendant’s statements, which are

not covered directly in the Jencks Act, the meaning of

“statements” under Rule 16 will not be restricted to that

given in Jencks Act. See United States v. Crisona, supra;

and Wright Federal Practice and Procedures, Vol. 1, §253.

The problems which would arise from interpreting Rule

16(a)(1) as not allowing discovery of summaries of state-

ments such as Petitioner’s were discussed by the court in

United States v. Morrison, 43 F.R.D. 516 (N.D. Ill. 167).

In that case, the defendant had made several oral statements

to Federal Agents, which were incorporated in written inter-

view reports sometime after the conclusion of the interviews.

The Government declined to reveal these summaries to the

defendant on the ground that they were not “statements”. In

Ordering the Government to reveal these statements to the

defendant, the Court said:

We believe, however, that the spirit of Rule

16(a)(1) could easily be evaded if the Govern-

ment were able to conceal these reports from the

defendant. Rule 16 was designed to liberalize the

court’s powers in regard to the grant of pre-trial

PAH tists NAR IER

— " oan

discovery. Were we to deny a request for this ma-

terial, we can foresee the day when Government

agents could make it their practice to summarize

their interviews, rather than recording them

verbatim, in an effort to avoid discovery. The

philosophy underlying Rule 16, in our judgment,

applies equally to verbatim statements and

summaries thereof. Therefore, we direct the

Government to produce the summaries of the

defendant’s statements in its possession, custody

or control.

See also, United States v. Reid, 43 F.R.D. 520 (N.D. IIl.

1967), United States v. Curry, 278 F.Supp. 508 (N.D. III.

1967).

This same attitude of liberalized discovery in criminal

cases is evidenced in the AMERICAN BAR ASSOCIA-

TION’S STANDARDS RELATING TO DISCOVERY

AND PROCEDURE BEFORE TRIAL. See specifically

Section 2.1 (a) (ii).

In accordance with Local Rule 31(b)(c) which Rule

attempts to implement Rule 16, if the United States Attor-

ney claimed that any requested statement was not discover-

able, it was his duty to file a written declination of the disclo-

sure of any pre-arrest statements on the grounds relied for

this declination. The failure of the U. S. Attorney to do this

deprived Petitioner of his right to a hearing by the trial

court on the question of discovery as to this statement.

While there is a general movement in favor of broadened

pre-trial discovery in criminal cases, this Court has not ruled

on this important area of Rule 16 regarding summaries of

pre-arrest statements. Mindful of the potential dangers and

abuses if such statements were to be exempt from the man-

—15—

date of the Rule, Petitioner believes this Court should con-

sider this important question of interpretation of Rule 16.

By allowing Agent Ashton to testify regarding the pre-ar-

rest statement of the Petitioner, and by failing to exercise its

powers under Rule 16(g), the District Court committed

error which was seriously prejudicial to Petitioner’s case.

II. THE COURT ERRED IN DENYING PETITION-

ER’S MOTION FOR A NEW PRELIMINARY

HEARING OR IN THE ALTERNATIVE DIS-

MISSAL OF THE CASE ON THE GROUNDS

THAT THE USEFULNESS OF VALUABLE EVI-

DENCE TO WHICH PETITIONER WAS ENTI-

TLED HAD BEEN DESTROYED DUE TO

FAULTY MECHANICAL RECORDING.

18 U.S.C. $3060 provides that a preliminary examina-

tion shall be held to determine if there is probable cause to

believe the defendant committed th crime with which he is

charged. See also F. R. Crim. P. Rule 5.1.

18 U.S.C. §3060(f) provides, inter alia,

The proceedings before United States magistrates

under this Section shall be taken down by a Court

Reporter or recorded by suitable sound recording

equipment... .

Federal Rules of Criminal Procedure, Rule 5.i, also

gives the Defendant a right to be provided with a copy of

the transcript of the preliminary examination. However, due

to faulty recording equipment, the Petitioner was unable to

obtain an accurate transcription of the recording of the pre-

liminary examination.

—_ oo

There is a split of authority between the Circuits regard-

ing the effect of an intervening indictment on rights granted

by reason of Rule 5.1 and 18 U.S.C. §3060. This split of

authority has not been previously settled by this Court.

In Gardner v, United States 407 F.2d 1266 (D.C. Cir.

1969), cert. denied, 395 U.S. 911 (1970), the Defendant

exercised his right to have a preliminary examination. Sub-

sequent thereto, he attempted to obtain a written transcript

of the proceedings. No transcript could be provided inas-

much as the proceeding had not been recorded. Notwith-

standing the fact that an indictment had been returned sub-

sequent to this preliminary hearing, the Court ruled that the

Defendant had a right to a written transcript upon request,

saying:

Timely objection to the denial of this right re-

quires reversal of a conviction if an accused was

prejudiced by the denial.

See also, Blue v. United States, 342 F.2d 894 (D.C. Cir.

1964); Dancy v. United States, 361 F.2d 75, (D.C. Cir.

1966).

The Tenth Circuit has consistently held that the sole pur-

pose of a preliminary hearing is to determine whether suffi-

cient evidence exists to warrant a finding of probable cause.

Furiher, the Court has held that absent deliberate prosecu-

torial connivance, a preliminary hearing, however, is not

required once a grand jury indictment is returned. See

United States v. Brumley, 466 F.2d 911 (10th Cir. 1972)

and United States v. Kysar, 459 F.2d 422 (10th Cir.

1972). Any discovery benefits inuring to the Defendant as

a result of these hearings have been determined to be only

incidental. United States v. Milano, 443 F.2d 1022 (10th

Cir. 1971).

a 17 —= é -

This position is based upon the reasoning that the sole

purpose of the preliminary hearing is to determine probable

cause and since a grand jury indictment establishes that

fact, any rights which might accrue in connection with a

preliminary hearing are overridden by the handing down of

the indictment.

However, this Court has recognized that a preliminary

hearing may be of much more importance to a Defendant

than merely establishing probable cause. In Coleman \. Ala-

bama, 399 U.S. 1. (1970), this Court in ruling that a

preliminary hearing was the critical stage of the proceed-

ings, stated that not only could counsel use the hearing to

expose weaknesses which might result in failure to bind

over, but that counsel could fashion a vital impeachment

tool for use in cross examination at trial and could use the

hearing to discover the case to be presented by the State and

to properly prepare in the general defense at trial.

Surely these valuable considerations cannot be overruled

because a grand jury indictment has intervened. Important

rights such as these granted to Defendant should not be so

easily withdrawn. The District of Columbia Circuit Court of

Appeals cases are in line with the rulings of this Court inso-

far as they recognize the continuing existence of these rights

after indictment and the broader value of a preliminary

hearing. Petitioner urges this Court to rule on this issue and

thereby settle the split in authority within the Circuit

Courts.

— oe

CONCLUSION

This Court should grant certiorari, and the judgment

below should be reversed.

Respectfully submitted,

WILLIAM L. KEATING

1226 Bannock Street

Denver, Colorado 80204

303-222-1601

Attorney for the Petitioner

—

— yee

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JULY TERM — 1973

THE UNITED STATES OF AMERICA, )

Plaintiff-A ppellee,

“ . NO. 73-1120

JoseEPH RAYMOND GoMEz, a/k/a

Joe Ray Gomez,

Defendant-A ppellant.

Appeal from the United States District Court

For the District of Colorado

(D.C. No. 72-CR-247)

John W. Madden, III, Assistant United States Attorney

(James L. Treece, United States Attorney, on the brief),

for Plaintiff-Appellee.

William L. Keating, of Ashen and Fogel (Marshall A.

Fogel, on the brief), for Defendant-Appellant.

Before LEWIS, Chief Judge, and HOLLOWAY and Mc-

WILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

—

Joseph Raymond Gomez was convicted by a jury of

knowingly and intentionally distributing and aiding and

abetting in the distribution of a quantity of heroin, in viola-

tion of 21 U.S.C. §841(a)(1) and 18 U.S.C. §2, the of-

fense occurring on June 23, 1972. In a separate count,

Gomez was similarly charged in connection with a transac-

tion which had allegedly occurred on June 22, 1972. Gomez

was acquitted on the charge arising out of the June 22 trans-

action.

Gomez urges the following as grounds for reversal of his

conviction on the charge arising out of the June 23 transac-

tion: (1) The refusal of the trial court to either dismiss the

indictment or order a second preliminary hearing when it

developed that the tape recording of his original preliminary

hearing was faulty and, in part, inaudible; (2) the refusal of

the trial court to grant a mis-trial at the same time it granted

a codefendant a mistrial on the grounds of the codefendant’s

illness; and (3) the failure of the trial court to exclude

certain testimony of a Government undercover agent where-

in the agent related an admission against interest allegedly

made by Gomez to the agent during the course of the agent’s

undercover investigative efforts and at a time when Gomez

was still unaware that he was dealing with an undercover

agent. We deem none of these matters to require a reversal.

I.

Gomez was afforded a preliminary hearing on August 17,

1972, at which time and place he was represented by re-

tained counsel. We are advised that the only witness testify-

ing at that hearing was Ashton, the undercover agent. On

August 24, 1972, Gomez was indicted by a Federal Grand

Jury. It later developed that the tape recording of the pre-

ne

liminary hearing was faulty and, in part, inaudible. It was in

this setting that Gomez filed a motion to either dismiss the

indictment or order a secondary preliminary hearing on the

ground that because of the unavailability of the recording of

the entire preliminary hearing proceeding he had “lost im-

portant and valuable sworn testimony which he had in-

tended to use at his trial.” In this regard, it is apparently the

position of counsel that the record of Ashon’s testimony at

the preliminary hearing could have been successfully used

for impeaching purposes upon trial proper. The trial court,

upon hearing, denied the motion, but in so doing advised

counsel that he could renew his motion for a second prelimi-

nary hearing with a citation of supporting authority, if he be

so inclined. This invitation was not accepted. Such failure to

renew the motion in and of itself virtually forecloses a rever-

sal on this ground. Be that as it may, under the circum-

stances as thus related we find no error on the part of the

trial court.

The sole purpose of a preliminary hearing is to determine

whether there is sufficient evidence to warrant continued

detention of the accused. United States v. Brumley, 466

F.2d 911 (10th Cir. 1972), and United States v. Kysar,

459 F.2d 422 (10th Cir. 1972). Any discovery benefits

inuring to the defendant as a result of such a hearing are

only incidental. United States v. Milano, 443 F.2d 1022

(10th Cir. 1971), cert. denied, 404 U.S. 943 (1971). A

failure to hold any preliminary hearing was not grounds for

reversal, where the complaint was preempted by an indict-

ment. United States v. Brumley, supra. And in Milano, we

held that absent evidence of deliberate prosecutional con-

nivance to deprive a person of a preliminary hearing by

delay till after indictment, a defendant was not entitled to

new trial even if the preliminary hearing had been improp-

— »

erly delayed and by virtue of such delay was preempted by

an intervening indictment. Under the reasoning of Brumley

and Milano, it would appear that the failure to have a com-

plete recording of the preliminary hearing available for

Gomez would not justify a dismissal or the holding of a

second preliminary hearing when an intervening indiciment

has been returned.

Even under the cases relied on by Gomez, the inability to

give him a complete record of the preliminary hearing

would not justify a reversal at this stage of the proceedings.

For example, in Gardner v. United States, 407 F.2d 1266

(D.C. Cir. 1969), cer?. denied, 395 U.S. 911 (1969), it

was held that a timely objection to the denial of the right of

a defendant to a transcript of his preliminary hearing would

only require a reversal “if an accused was prejudiced by the

denial.” In Gardner, no record of the preliminary hearing

was ever made and hence could not be given the defendant.

The defendant there indicated he would have used the tran-

script of the preliminary hearing to impeach the complain-

ing witness. However, in Gardner it was held that such was

an insufficient showing of prejudice and the conviction was

affirmed. Similarly, in the instant case Gomez’ claim of prej-

udice is conclusory in nature and singularly lacking in de-

tail. For all these reasons, then, we regard this particular

assignment of error to be without merit.

Il.

Gomez was tried jointly with his coindictee, one Antonio

Jose Martinez. On the morning of the second day of what

turned out to be a three-day jury trial, Martinez became

suddenly ill and hospitalized. Counsel for Martinez moved

for a mistrial as to Martinez, which motion, upon showing,

was granted. Counsel for Gomez immediately thereafter

ao 23

moved for a mistrial and this motion was denied. Error is

now predicated on this ruling of the trial court.

The principal ground urged on the trial court as to why

Gomez should have been allowed a mistrial was counsel's

statement that he proposed to use both Martinez and Gomez

to rebut the testimony of the Government’s undercover

agent. In this regard, counsel was somewhat equivocal, ad-

vising the trial court that “possibly.” and “possibly proba-

bly,” he might want to call Martinez as a wi'ness for

Gomez. In this regard, we find nothing in the record to indi-

cate that Martinez and his counsel were agreeable to the

former being called as a defense witness, even assuming that

Martinez was physically able to appear at trial. It was in this

factual setting that the trial court denied Gomez’ motion for

a mistrial. We find no error.

United States v. Pollack. 427 F.2d 1169 (Sth Cir.

1970), cert. denied, 400 U.S. 831 (1970), closely resem-

bles the instant case in this particular aspect. There, it was

held that where a coindictee, who on the morning of the

trial was hospitalized, had given no prior indication of in-

tention to testify and there was no affidavit or other show-

ing as to precisely what testimony could be expected from

the coindictee, a denial of a request for a continuance on

the ground that the coindictee was an indispensable witness

was not an abuse of discretion. We subscribe to the result

and reasoning in Pollack, and we find no abuse of discretion

on the part of the trial court in denying Gomez’ motion for

mistrial.

Il.

Prior to trial, Gomez filed a motion for discovery pursuant

to Fed. R. Crim. P. 16, and local rule 31, seeking to dis-

cover, among other things, “any written or recorded state-

"em

ments and the substance of any oral statements made by the

accused, or by his codefendant.” In response thereto, the

Government answered to the effect that Gomez made no

“post arrest statements.” The matter was not pursued fur-

ther at that ime, and the matter only surfaced upon trial.

As trial of this case was about to commence, the Govern-

ment, pursuant to the provisions of 18 U.S.C. §3500,

furnished defense counsel with an investigative summary

prepared by undercover agent Ashton, who, as above indi-

cated, was a key Government witness. That narrative

summary, insofar as is here pertinent, reads as follows:

“DETAILS:

1. On June 30, 1972, S/A Mel Ashton was driv-

ing OGV N-4991 in the vicinity of 11th Avenue

and Osage Avenue. At approximately 6:00 P.M..,

S/A Mel Ashton observed GOMEZ exit 1154

Osage and proceed to his vehicle, AZ-470.

GOMEZ was accompanied by MARTINEZ. S/A

Mel Ashton contacted GOMEZ and MARTI-

NEZ.

2. S/A Ashton asked GOMEZ and MARTINEZ

if they remembered doing business with Frederick

George SANCHEZ and S/A Mel Ashton on June

23, 1972 (delivery of 1A and 1B). GOMEZ and

MARTINEZ answered in the affirmative.

GOMEZ stated that he remembered OGV N-

4991.” (Emphasis added. )

When agent Ashton was about to testify as to his conver-

sation with Gomez of June 30, 1972, wherein Gomez, ac-

cording to Ashton, “answered in the affirmative” when

asked if he “remembered doing business with Frederick

ic ee

George Sanchez and S/A Mel Ashton on June 23, 1972,”

objection was made and the objection was overruled and the

testimony above referred to was permitted to go to the jury.

This ruling of the trial court is now claimed to be prejudi-

cial error necessitating a new trial. We disagree.

The disagreement between the parties on this particular

matter can perhaps best be demonstrated by noting that

Gomez claims Ashton’s narrative summary containing a

statement attributed to him should have been produced

under Rule 16, whereas the Government contends that such

a document need not be produced under Rule 16, and need

only be produced, as it was, at trial in conformity with 18

U.S.C. §3500.

In his denial of Gomez’ motion for a new trial, the trial

court indicated. though there was no formal ruling as such,

that Ashton’s narrative summary should have been pro-

duced under Rule 16, but that inasmuch as the document in

question was in fact given Gomez at the outset of his trial,

there was no resulting prejudice. In the posture we find this

particular issue, we are disinclined to come to grips with the

questicn as to whether Ashton’s narrative summary was dis-

coverable under Rule 16, or need only be produced under

18 U.S.C. $3500. Apparently there is a diversity of judicial

thought on this particular matter. However, like the trial

court, we too under the circumstances are unable to find any

prejudice, even assuming improper delay in turning over

Ashton’s narrative summary to defense counsel.

At the outset, we would note that an application for relief

under the discovery rules is a matter within the sound dis-

cretion of the trial court, and its ruling will not be disturbed

in the absence of an abuse of discretion. In this regard, we

further note that Rule 16(g) provides the trial court with

eee eee

|

considerable latitude even though it be shown that there has

been a failure to comply with Rule 16 or an order of court

issued pursuant thereto, i.e., exclusion of the proffered evi-

dence is only one of the available remedies. Additionally,

prejudice must be shown as a result of the Government's

failure to produce the evidence which defendant sought to

obtain. In the instant case, as indicated. Gomez was given

Ashton’s narrative summary containing the statement attrib-

uted fo him on June 30, 1972, at the outset of the trial

proper. In such setting, counsel’s difficulty in showing re-

sulting prejudice is most uderstandable. In support of the

foregoing. see such cases as United States v. Cole, 457 F.2d

1141 (9th Cir. 1972), cert. denied, 409 U.S. 868 (1972):

United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969),

cert. denied sub nom, Panaccione v. United States, 396 U.S.

834 (1969); United States v. Battaglia, 410 F.2d 279 (7th

Cir. 1969), cert. denied, 396 U.S. 848 (1969); and Walsh

v. United States, 371 F.2d 436 (1st Cir. 1967), cert.

denied, 387 U.S. 947 (1967).

Judgment affirmed.

—_ 27 —

APPENDIX B

SEPTEMBER TERM — OCTOBER 2, 1973

Before Honorable David T. Lewis, Chief Judge, Honorable

William J. Holloway, Jr., and Honorable Robert H. Mc-

Williams, Circuit Judges

THE UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

bi . NO. 73-1120

JOSEPH RAYMOND GOMEZ, a/k/a

Joe Ray Gomez,

Defendant-A ppellant. |

This matter comes on for consideration of the petition for

rehearing filed by the appellant.

Upon consideration whereof, the petition for rehearing is

denied.

HOWARD K. PHILLIPS,

Clerk

=

APPENDIX C

Rule 31 Pretrial Discovery and Inspection

(a) Within seven (7) days after the arraignment

the United States Attorney and the defendant’s

attorney shall confer, and upon request, the gov-

ernment shall:

(1) Permit defendant’s attorney to inspect

and copy or photograph any relevant written or

recorded statements or confessions made by the

defendant, or copies thereof, within the posses-

sion, custody or control of the government, the

existence of which is known, or by the exercise of

due diligence may become known, to the attorney

for the government;

(2) Permit defendant’s attorney to inspect

and copy or photograph any relevant results or

reports of physical or mental examinations, and

of scientific tests or experiments made in connec-

tion with the case, or copies thereof, within the

possession, custody or control of the government,

the existence of which is known, or by the exer-

cise of due diligence may become known to the

attorney for the government;

(3) Permit defendant’s attorney to inspect

and copy or photograph any relevant recorded

testimony of the defendant before a grand jury;

(4) Permit defendant’s attorney to inspect

and copy or photograph books, papers, docu-

ments, tangible objects, buildings or places which

is the property of the defendant and which are

within the possession, custody or control of the

government;

—

(5) Permit defendant’s attorney to inspect

and copy or photograph the Federal Bureau of

Investigation Identification Sheet indicating de-

fendant’s prior criminal record;

(6) Permit defendant’s attorney to inspect,

copy or photograph any evidence favorable to the

defendant;

(b) If, in the judgment of the United States At-

torney, it would not be in the interests of justice

to make any one or more disclosures set forth in

paragraph (a) and requested by defendant’s

counsel, disclosure may be declined. A declina-

tion of any requested disclosure shall be in writ-

ing, directed to defendant’s counsel, and signed

personally by the United States Attorney or the

First Assistant United States Attorney and shall

specify the disclosures which are declined, to-

gether with the reasons for such declination. Such

written declination shall be served on defendant's

counsel and filed with the Court within 10 days

of the arraignment.

(c) If additional discovery or inspection is

sought, written request therefor shall be made by

defendant’s counsel at the conference required by

paragraph (a) hereof. If the United States Attor-

ney declines to furnish such additional discovery

or inspection, such written declination, including

the reasons therefor, shall be served and filed in

accordance with the provisions of paragraph (b)

hereof.

(d) If the United States Attorney files such writ-

ten declinations under the provisions of para-

graphs (b) or (c) hereof, the Court will hear and

PROSE RTE AINE ML IN LEENA AL REI REPL ELNELTY ERENFEET ROE EERIE ER ES PORN EM SOL ER PCRS SY MISES

— = -

= 30 —

determine the matters in issue as if defendant’s

counsel had filed formal motions to discover or

inspect the material described in such declina-

tions.

(e) Any duty of disclosure and discovery set

forth in this Rule is a continuing one and the

United States Attorney shall produce any addi-

tional information gained by the government.

(f) Any disclosure granted by the government

pursuant to this Rule of material within the pur-

view of Rules 16(a)(3) and 16(b), Federal

Rules of Criminal Procedure, shall be considered

as relief sought by the defendant and granted by

the Court.

(g) It is the intent of this Rule to provide for the

furnishing and the interchange of information by

and between counsel in a cooperative manner

without necessity for recourse to the Court.

(h) All other motions shall be filed within 15

days of the arraignment.