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

Supreme Court brief1974

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TABLE OF CONTENTS

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Questions Presented ............

Statement of the Case ...........

Reasons for Granting the Writ ..

CONS a inccasdanceenaennes

RUE DE Sain occctaciscneeees

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eee eee ewe eee eee

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Appendix B—Memorandum Opinion .............

Appendix C—Affidavit for Search Warrant........

Appendix D—Search Warrant ..

Ce * 5 cs Sciacca

Appendix E—Order Denying in Part Defendant’s

Motion to Suppress All Evidence ............

Appendix F—Ruling of the Court

INDEX TO AUTHORITIES

Cases Page

Alford v United States, 282 US 687 (1931)..... 3, 23, 25

Brookhart v Janis, 384 US 1, 3, 86 S Ct 1245, 1246,

SRE PE eons s apsakis ancy saauane 24

Connally v General Construction Co, 269 US 385

RE. eas oewdisascndasiee pap buancbukes 7, 8,9, 12

Giacca v Pennsylvania 382 US 399, 15 L Ed 2d

SGT, OB Ce BRB CRIED noc kwncc ccceccccesces 9

Lanzetta v New Jersey, 306 US 451 (1939) ...... 7, 8,9

Leonard v United States, 6 F 2d 353, 355 (1 Cir

Sax Sa Anes ap cnseekane Seas eacdnd bons 19

Marron v United States, 275 US 192, 195-196, 72

L Ed 231, 236, 237, 48 S Ct 74 (1927) ........ 21

‘Mesmer v United States, 405 F 2d 316 (1969) .... 21

Nathanson v United States, 290 US 41 (1933).... - 15

Pointer v State of Texas, 380 US 400, 403, 85 S Ct

1065, 1068, 13 L Ed 2d 923 .................. 24

Smith v Illinois, 390 US 129 (1968).......... 23, 24, 26

Stanley v Georgia, 394 US 557 (1969) .......... 21, 22

United States v Carmichael, 489 F 2d 983 (CA 7,

PE oi vas nba canaeeunmanectcnwansscee<s 16

United States v Cohen Grocery Company, 255 US

81, 65 L Ed 516, 41 S Ct 298 (1921).......... 13

United States v Cook, 432 F 2d 1093 (1970) ..... 2

United States v Lyon, 397 F 2d 505, 511 (7th Cir

ere re ree rer er ern eek cas 23

“——~,

HOES Op jemornm ety

SAO AAT ITS TOONS OE LIT

Page

United States v Manfredi, —— F 2d —— (1973) . 6

United States v Marchesani, 437 F 2d 1291, 1297

EE I I ee ee peice 23

United States v Marihart, 15 CRL 2036 (CA 8,

ARR romney amp sep eit 16

United States v Mulls, 366 F 2d 512 (6th Cir 1966) 23

United States v Thomas, 489 F 2d 664 (Ca 5,

PE Rieobbuidbaepe cvnesssdakasaee dcoecans 16

United States v Smith, 16 F 2d 788, (SD Fla

MEE. S AsuG owas bebe case cea aukeneewn scenes 19

Winters v New York, 333 US 507, 92 L Ed 840,

ee ee CE cs; - nino kad ccs beaesence 7

Other Authorities

IE Sn cin eo eee sath wwe 4

gs hs SR ere reise a

I i rg oe ain en 1,3

Oe SO os Sane vaekncewaccuas 1, 2, 3, 7, 9, 12, 13

DPT I ocean Ceara oa 2

Rule 41(c), Federal Rules of Criminal Pro-

i OER. “Svs xidenskvecdanucaccacuceeee ds 2, 17, 18, 19

1970 US Code Congressional and Administrative

News, pp 4650, 4651 ......... ccc cece ccccees 10

DELON Ba, ee a GEA a LAINIE Lon 8 MIR er AP as pO

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

——_>——_

No.

—_—$—_—_

LEROY FRANK COLLIER,

Petitioner.

vs.

UNITED STATES OF AMERICA,

Respondent,

——p——

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

—_>——-

Leroy Frank Collier, by and through his attorneys, Fred-

erick R. Bellamy and Neil H. Fink, Petitions for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Sixth Circuit, affirming his con-

viction for possession of cocaine with intent to distribute

same, in violation of 21 USC $841 (a)(1), conspiracy to

import cocaine, in violation of 21 USC $963, and engaging

in a continuing criminal enterprise relating to a conspiracy

to import and possess cocaine in violation of 21 USC $848.

Baer pe cae APRS Oa 1 oO MERRIER ESTEE ITS NORE SAT NATROL MOM ORI SRM aN

OPINION: BELOW

The opinion of the Sixth Cireuit Court of Appeels is

not yet reported, but is set forth herein as Appendix A.

JURISDICTION

The judgment of the Sixth Cireuit Court of Appeals was

filed March 27, 1974. The jurisdiction of this Court is in-

voked under 28 USC § 1254(1). An Order Extending Time

. to File Petition for Writ of Certiorari was signed by the

‘Honorable Potter Stewart, Associate Justice, sitting as

Circuit Justice for the Sixth Circuit, on April 23, 1974, ex-

tending the time for filing this Petition to and including

May 15, 1974.

QUESTIONS, PRESENTED

Is 21 USC §848, the “continuing criminal enterprise” |

statute, unconstitutionally vague upon its face, in failing to

provide ascertainable standards eet which particular

behavior may be measured?

“I

Must evidence procured under a search warrant based

upon an Affidavit which offers the conclusions of the af-

fiant in the guise of fact, and misstates the source of alle-

gations vital to the ere of probable’ cause, be sup-

pressed?

SB RHE Ort

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NS PIRES ES A os niet ys 4 “ acne eees a — . . a

s Sart BAY sy iantaenien TIS EY PRIMEY ie ab iti Ie ae EE URN OE

II!

is 9 search warrant which does not specifically direct

any officer or class of officers to execute the search fatally

defective under Rule 41(c), Federal Rules of Criminal

Procedure?

When a search warrant names a specific item as the ob-

ject to be seized, does the Fourth Amendment require that

once the sought-for object is found, the officers executing

the warrant may not continue with their searching, and

does the Fourth Amendment require that any items

thereafter seized, not in plain view, be suppressed?

May a federal trial judge, absent a specific showing of

compelling circumstances of danger to the witness or

the like, foreclose inquiry concerning the present address

of a key Government witness, as against this Court’s

holding in Alford v. United States, 282 US 687 (1931),

and its progeny, and the guarantees of the Sixth Amend-

ment. io the United States Constitution?

STATEMENT OF THE CASE

In July of 1972, the defendant, Leroy Frank Collier, was

charged in a three count indictment with conspiracy to

import cocaine, pursuant to 21 USC 963; in the second

count, he was charged with engaging in a continuing crimi-

nal enterprise relating to a conspiracy to import and pos-

sess cocaine with the intent to distribute it, under 21 USC

848; the third count charged him with violation of 21 USC

RLM LIMITE RIS VERS 5 OR IDS LE RE OY tone wT WPS RIE HI Perey : 3 x aN wer

841 (a)(1), possession of cocaine with intent to distribute

it.

. On April 18, 1973, a jury trial commenced before the Hon-

orable Ralph M. Freeman. The Government offered physi-

cal evidence seized from Collier’s house and from other

sources, and the testimony of several persons alleged to

have brought cocaine into this country at Collier’s behest.

The testimony of Douglas Kapp and Cathe Lucas, key

government witnesses, tended to link Collier to the con-

spiracy to smuggle cocaine into the United States. The

two came to the attention of the Government when they

were searched by U. S. Customs officials who noticed bulges

on their persons, and upon further search, cocaine was

discovered to have been conceaied in body girdles. (TT,

4-20-73. Pp 112-117.)*

At that time, the frightened Kapp and Lucas were in-

timidated into cooperation with the Customs authorities.

Kapp was met by Agent Verklan in Detroit; and, after

an unsuccessful attempt to reach Collier from a hotel room,

Kapp was taken to his apartment in Plymouth, Michigan,

where he successfully called Collier. (TT 4-20-73, pp. 118-

120.) Customs agents recorded the ensuing telephone con-

versation.

The evidence was suppressed by the Court upon defend-

ant’s motion, finding that Kapp’s purported consent was

not given as contemplated by 18 USC.2511(2) (e).

On May 31, 1972, Customs agent Back obtained a search

warrant from the Honorable Paul Komives, US Magistrate,

by swearing to an affidavit and warrant prepared by agent

* Numbers in parentheses refer to Trial (TT) and Pre-Trial Hear-

ing (PT) Transcripts, by date and page.

Verklan and the US Attorney’s secretary (PT 95-97). The

affidavit for the search warrant reads, in part:

“On May 31, 1972, at 1:45 a.m. a telephone call

was placed by Kapp per his pre-arranged instruc-

tion with cocaine consignee, identified as Leroy

Collier to telephone number 313-355-2199. Kapp was

instructed by Collier to have Kathy Sue Lucas

deliver the cocaine to his house later on this date.

Collier instructed Kapp that his address was 18470

George Washington St., Southfield, Mi.”

According to Kapp’s testimony, the petitioner Collier,

never mentioned the word “cocaine” nor gave his home

address in the taped telephone conversation. (TT 4/20/73,

p 121). On cross-examination, agent Verklan, who had

recorded the conversation subsequently ruled to have been

illegally intercepted by the court (TT 4/1/73, pp 221-22),

admitted that Collier did not instruct Kapp as to his ad-

dress, nor did he mention the word “cocaine”, contrary to

the specific information as set forth in the affidavit for

the search warrant (TT 4/27/73, p 163).

The Affidavit for Search Warrant, sworn to by Agent

Back ou May 31, 1972, also states, “At approximately 12:00

noon, May 31, 1972, Lucas will deliver the cocaine to Col-

lier’s address in the company of Agents of US Customs.”

On direct examination by Mr. Hurlbert for the prosecution,

Agent Back agreed that the majority of the cocaine had

been taken from the package that Lucas was to deliver

and lactose had been substituted for it (PT 96). Agent

Back agreed that he did make a false statement in the affi-

davit, since the affidavit described 3,200 grams of cocaine

to be delivered, but denied that he did so knowingly. He

testified that he had been advised of the substitution of

milk sugar after the raid. (PT 103-104).

An examination of the search warrant indicates that it

is not directed to any party or class of persons for execu-

tion. The word “To” is followed by a blank space.

The Trial Court also heard arguments on the sufficiency

of the search warrant. Rejecting the argument that the

warrant was a legal nullity, in that it did not direct any-

body to execute its demands, the court said “no one in

charge of the premises asked or questioned the authovity

of the officer to execute the warrant” (PT 227). The Court

also rejected Defendant-Appellant’s argument that the affi-

davit in support of the search warrant states no probable

cause.

The Trial Court refused to permit defense counsel to

inquire as to the current addresses of those Government

witnesses who claimed to have acted as couriers for De-

fendant-Appellant, absent a showing of particularized need,

taking “judicial notice” of the dangers to witnesses in “nar-

coties cases” (TT 5/2/73, pp 316-321).

On May i1, 1973, the jury returned a verdict of guilty as

charged to all counts against the Defendant Collier. (De-

fendant East, who was also being tried with Defendant

Collier, was found not guilty).

In a per curiam opinion, the Sixth Cireuit Court of Ap-

peals dismissed the bulk of Petitioner’s assignments of

error without discussion, but specifically upheld the validity

and sufficiency of the search warrant affidavit on the basis

that the misstatements of fact were “reasonable interpreta-

tion”, and not “erroneous”, and rejected the Petitioner’s

attack upon the constitutionality of 21 USC 4848 in one

paragraph, alluding to the decision of the Second Circuit

Court of Appeals in United States v Manfredi,——F 2d.

(1973), as authority for the constitutionality of the Sta-

tutory provision, as applied; the Court did not specifically

respond to the facial unconstitutionality issue raised by

Petitioner.

Ot a ——

REASONS FOR GRANTING THE WRIT

This Court has yet to determine the constitutionality of

the “continuing criminal enterprise” section of the Com-

prehensive Drug Abuse Prevention and Control Act of 1970,

21 USC 4$848, the vagueness of which clearly troubled the

trial court (see Appendix B), and which the Sixth Circuit

eavalierly disregarded in one paragraph of its per curiam

opinion.

The Statute’s departures from the principles of constitu-

tionally reeuired certainty and specificity spelled out by

decisions of this Court are manifest, and call for a reasoned

and final determination. The decision of the Cireuit Court

of Appeals is hardly responsive to this need. The Court

wholly failed to address itself to the difficult question re-

garding the facial validity of the Statute. In a patent abdi-

eation of judicial responsibility, the Court shrugged off

the question of facial sufficiency, and even declined to

address itself to the difficult questions regarding the

Statute’s application in the case at bar.

The requirement that crime be defined with appropriate

definiteness is a fundamental common law concept and an

esseutial element of due process of law. Cases are legion

that hold that the standard of certainty required in criminal

statutes is more exacting than in non-criminal statutes.

See, e.g., Winters v New York, 333 US 507, 92 L Ed 840,

68 S Ct 665 (1948).

In the landmark eases of Connally vy General Construc-

tion Co, 269 US 385 (1926), and Lanzetta v New Jersey,

306 US 451, (1939), this Court provided exemplary guide-

lines to determine whether a criminal statute on its face

is so vague and uncertain in its definition of the offense as

to be repugnant to the due process clause.

The Connally case involved the enforcement of a criminal

statute purporting, inter alia, to prescribe a minimum for

the wages of workmen employed by contractors in the

execution of contracts with the State of Oklahoma and

imposing a fine or imprisonment for each day’s violation.

The thrust of Connally, which was ignored by the trial

judge in the case at bar, involved the fatal lack of ascer-

tainable standards within the statute necessary to satisfy

due process. Mr. Justice Sutherland, in delivering the

Opinion of the Court, emphasized that it “is a well-recog-

nized requirement, consonant alike with ordinary notions of

fair play and the settled rules of law” that

. a statute which either forbids or requires the

doing of an act in terms so vague that men of

common intelligence must necessarily guess at its

meaning and differ as to its application, violates

the first essential of due process of law. Inter-

national Harvester Co v Kentucky, 234 US 216, 221;

Collins v Kentucky, 234 US 634, 638. Connally,

supra, 269 US at 391. (Emphasis supplied.) Cited

in Lanzetta v New Jersey, supra, 306 US at 453.

In Lanzetta, supra, the Court applied the salutory Con-

nally rule as to whether a penal statute is unconstitutionally

vague and uncertain and overturned the New Jersey “Anti-

Gangster” statute. In that case, the Court took no issue

with the valid aim, purpose and objective of the legislature

in rendering penal the association of criminals for the

pursuit of criminal enterprises. The Court further agreed

that it was the primary function of government and within

the competence of the legislature to rid society of one of

the most menacing forms of evil activity. However, laud-

able ends cannot sanction unconstitutional means. The

Court, therefore, went on to state a fundamental doctrine

implicit in our constitutional system of jurisprudence:

If on its face the challenged provision is re-

pugnant to the due process clause, specification of

details of the offense intended to be charged would

not serve to validate it. Cf. United States v Reese,

92 US 214, 221, 23 L Ed 563, 565; Czarra v Medical

Supers, 25 App DC 443, 453. It is the statute, not

the accusation under it, that prescribed the rule to

govern conduct and warns against transgression.

See Stromberg v California, 283 US 359, 368, 75 L

Ed 1117, 1122, 51 S Ct 532, 73 ALR 1484, Lovell v

Griffin, 303 US 444, 82 L Ed 949, 58 S Ct 666.

Lanzetta, supra, at 453 (Emphasis supplied.)

In Giacca v Pennsylvania, 382 US 399, 15 L Ed 2d 347,

86 S Ct 518 (1966), this Court strongly reasserted the

absolute necessity that a statute comport on its face with

the “sufficient standards” test of Lanzetta, Connally and

their progeny. Mr. Justice Black, expressing the views of

seven members of the Court, held a statute empowering

a jury to assess costs against an accused whom the jury

found not guilty invalid under the due process clause be-

cause of its vagueness and absence of any definite stan-

dards or conditions to govern the jury’s power to impose

costs. In holding that the Pennsylvania statute was uncon-

stitutional, the Court arrived at its determination solely

by viewing the statute on its face.

An examination of the legislative history of the “Con-

tinuing Criminal Enterprise” section of the Comprehensive

Drug Abuse, Prevention and Control Act of 1970, 21 USC

PRAT 5 ET 26 A LITE TILT Ee > SDE LS Ee ey eet

$848, reveais that Congress was acutely aware. of the

statute’s uncoustitutional infirmity despite the effort of

amendineat to cure the statute’s more obtrustive uncon-

stituiional provisions.

In commenting on the original provisions of the Con-

tinuing Criminal Enterprise section and its final amended

form, the congressional sentiment toward the Justice De-

partment is recorded as follows:

. .. there can be no doubt that the Justice Depart-

ment in S. 30 and in H.R. 18583 and its precursors

has shown little sensitivity either toward constitu-

tional rights or toward modern concepts of penology

and rehabilitation. Whatever bill is passed may be

expected to be enforced by a department affected

by those predilections reflected in its original re-

commendations. 1970 US Code Congressional and

Administrative News, p 4650.

Whereas the Dingell Amendment eliminated the original

bill’s (S. 30) post conviction-presentencing procedure by

providing “that engagement in a continuing criminal] enter-

prise is a new and distinct offense with all its elements

triable in court” the legislature candidly pointed out that

the amended section, now 21 USCA 848, “still contains

serious objections”. 1970 US Code Cong and Adm News,

p 4651.

To illustrate these objections, the following hypotheticals

were printed in the legislative history to illustrate the still

present unconstitutional vagueness in the terms “con-

tinuing series of violations” and “substantial income or

resources” :

(a) It is not at all clear what constitutes a “con-

tinuing series of violations of this title or title

yyyee* *

-_—

ole ee ee a

Suppose, for instance, that six young men at-

tending a college reside together in a cooperative

boarding house. All of them have engaged in the

practice of smoking marihuana cigarettes and there

has been on a day or more, free exchange between

them of such forbidden drug. Each incident of

giving a cigarette to another constitutes a felony.

How long must this practice continue in order to

constitute a “continuing series of violations”? Would

a single day’s experiment with smoking “pot” con-

stitute a “continuing series of violations”, or would

it require a week, a month, or a year of such acti-

vities to make the offenses “continuing”?

(b) It is not at all clear what is meant by

deriving “substantial income or resources” from the

enterprise. Let us take the situation mentioned

above. Suppose one of the young men is the house

manager of the boarding house. As such he is in

a general “supervisory position” or “other position

of management” in the ordinary affairs of the house,

but he has not ordinarily obtained any “income or

resources” connected with the sale of marihuana.

He has only been paid for his general house manage-

ment. On one occasion he purchases $100 worth of

marihuana and divides it with the other five mem-

bers, selling it to them at cost. Has he then obtained

“substantial income or resources” in connection with

the enterprise?

Or what if such common purchases by one of the

group is done each week? Also, does “substantial

income or resources” relate to profits or, on the other

hand, to mere receipt of money? Would “income or

resources” include the advantage to the house man-

SE see SIFT PES SF es ee Nyt ate?

TOSS ER PCA I eR rere le, Re

Lames)

ager of obtaining his own share of the marihuana

at a cheaper rate because it was bought in bulk?

The obscurity and imprecision in the statutory language

of 21 USCA 848 and its lack of ascertainable standards to

guide a judge or jury to properly determine whether a

given accused falls within its prohibitions, simply cannot

pass constitutional muster. Is a continuing series of vio-

lations to be measured on a space or time continuum?

What is the minimum number of violations necessary to

establish a continuing series? Where are the legally ascer-

tainable standards necessary to establish that the accused

has derived “substantial income or resources”? Does the

“substantial income or resources” element vary from de-

fendant to defendant? How should judge or jury determine

this element in terms of profits, net income or gross income?

Is a time factor to be employed in calculating substantial

income or resources? Should the fiscal year as opposed to

a monetary year be the yardstick? Can a putative defen-

dant be said to have derived a substantial source of income

or resources on two different occasions in the same day

or spanned by decades in disregard of his other sources

of income or resources in the given fact situation?

These questions cannot be solved by resort to the estab-

lished canons of construction that enable a court to look

through awkward or clumsy expression, or language want-

ing in precision, to the intent of the legislature.

For the vice of the statute here lies in the im-

possibility of ascertaining by any reasonable test,

that the legislature meant one thing rather than

another. Connally, supra, at 394.

This element of uncertainty in determining what consti-

tutes a “continuing series of violations” and upon what spe-

Se a ee hs at eh ee ea ee

cific 2ireumstances may an accused be said to have derived

“substantial income or resources” therefrom cannot be dis-

missed as of no consequence. The trial court itself expres-

sed its opinion that the statute’s use of the term “sub-

stantial” is not perhaps the best term available (See Ap-

pendix 'B, Memorandum Opinion, p 32). These are the

essential elements defining a new and distinct federal

offense—a serve crime which subjects the defendant who

comes within its provisions and is adjudged guilty to

extremely severe sanctions.

The trial court’s memorandum opinion (Appendix B)

itself cites the case of United States v Cohen Grocery

Company, 255 US 81, 65 L Ed 516, 41 S Ct 298 (1921),

where “the court held a statute unconstitutional where the

Indictment merely named the price collected and charged

in the exact language of the statute that defendant had

charged an unjust or unreasonable rate... the Court found

ne standard which could be impliedly encompassed by the

statute leaving the determination of ‘unjust’ and ‘unreason-

able’ totally to the discretion of the court and jury. Under

these circumstances the court held the statute unconstitu-

tional.” (Appendix B, Memorandum Opinion, p 37). Peti-

tioner subniits there are no more precise standards to

determine the elements of “continuing criminal enterprise”

or “substantial income or resources” as there are to deter-

mine “unjust” and “unreasonable”.

The result of any application of 21 USCA 848 depends

not upon any \words of fixed meaning in themselves, or

made definite by statutory definition, or by the context or

other legitimate aid to its construction, but upon the neces-

sarily varying impressions of judges and juries as to what

constitutes the elements of “continuing criminal enterprise”

and “substantial Source of income or resources”. The con

ARQ ROS A tert gor es ee ee

stitutional guarantee of due process cannot be allowed to

rest upon a support so equivocal.

Il.

During the course of the trial, it came to the court’s

attention that crucial and material facts as set forth in

the affidavit for a search warrant (Appendix C) concerning

the contents of the conversation between Kap and Collier

were erroneously and falsely supplied by ‘he government

agents.

Kapp was asked during direct examination by Mr. Hurl-

bert to tell the jury the contents of his telephone con-

versation of May 31, 1972, with defendant Collier. He

testified that:

I called Mr. Collier and he answered the phone.

He asked me what happened and I said I got hung

up and he asked me if everything was cool and I

said yes. He told me, “Well, have Casey drop the

thing over tomorrow.” He said, “I’ll have something

for her. I’m sorry you missed the show tonight. It

was good, but I will see that you get good seats for

the first show tomorrow.” He said, “I love you” and

hung up. (TT 4/20/73, p 121).

It is notable that Kapp’s testimony concerning the con-

tents of the crucial telephone conversation fails to allege

that defendant instructed him to have any drugs of any

kind brought to any specific location.

The testimony elicited from Agent Verklan, who had

both illegally monitored the conversation and supplied the

information contained within the affidavit to affiant Back,

is consistent with and confirming of Kapp’s testimony:

et ee a en td ROR AL SAE IR DOT INEM PYLE SEUSS SEAT SP WORN,

Q. My question of you was during a phone call

at 1:25 a.m., May 31st, did Mr. Collier instruct Mr.

Kapp what his address was?

A. No, sir, he did not.

Q. During that phone call on May 31, at 1:25

aim., did Mr, Collier ever mention the word “eo-

caine”?

A. No, sir, he did not. (TT 4/27/73, p 163).

It thus became readily apparent to the court that the law

enforcement agents in their zeal to implicate Petitioner

with Kapp intentionally and falsely supplied their own

facts and inferences concerning the conversation so that a

magistrate would find probable cause to issue an in futuro

search warrant of defendant’s premises.

Purged of its erroneous statements, the affidavit was

wholly lacking in facts tending to show that defendant

Collier instructed Kapp to have Lucas deliver the cocaine

or any contraband to any specific location, let alone his

own premises at George Washington Street in Southfield,

Michigan. Stripped of its incorrect assertions, the affidavit

became similar to that in Nathanson v United States, 290

US 41 (1933), consisting of nothing more than the bare

uncorroborated statement of affiant’s belief.

The substantive information asserted te have been given

by the informer to the affiant was conclusively proved at

trial never to have been given at all. The law enforcement

officers impermissibly chose to supply their own inferences

and to draw their own conclusions by so doctoring the sub-

stance of the conversation that the magistrate would not

even question the existence of probable cause to issue a

search warrant of defendant’s premises.

The Circuit Court of Appeals upheld the validity of the

warrant simply upon the notion that the infe:cnces which

the affiant supplied as facts were “reasonable”. The Court,

however, with a startling lack of intellectual honesty, whol-

ly failed to deal with the difficult question raised by the

obvious fact that, however reasonable the inferences may

have been, they were not presented as inferences, but were

misrepresented as being facts.

What constitutes misrepresentation in the context of an

affidavit for a search warrant, and what remedy should be

applied when misrepresentation is shown, has been the sub-

ject of disparate judicial opinion by the Circuit Courts of

Appeal. See, ¢.g., United States v Thomas, .489 F2d 664

(CA 5, 1973), United States v Carmichael, 489 F2d 983 (CA

7, 1973), United States v Marthart, 15 CRL 2036 (CA 8,

3/6/74). Definitive and authoritative guidelines should

be supplied by this Court.

With respect to the substance of the Petitioner’ S$ position,

Petitioner concedes that an affidavit need not present a

mirror image of the information upon which it is based.

However, the Government, as well as the Sixth Circuit

Court of Appeals, misperceived the thrust of the issue

when it suggested that the affidavit was sufficient so long

as supported by permissible inferences, rendering the con-

clusion presented in the substance of the affidavit “reason-

_ able.” If the affidavit had stated that the affiant had pieced

together bits and pieces of information and concluded that

the “thing” to be delivered was cocaine, and that the place

to which it was to be delivered was the George Washington

‘Street address, the magistrate could have evaluated the

agents’ conclusions and inferences and determined if in

_ fact they supported the finding of probable cause. How-

ever; the Court was not called upon to make such an evalu-

“ weil

ation. The affidavit informed the Court that the statements

contained in the affidavit had been made in the course of

the intercepted communication. The statements as repre-

sented were conclusive of the question of probable cause.

They made it unnecessary for the Court to evaluate the

reasonableness of the affiant inferences and conclusions.

To suggest that the fact that such inferences and con-

clusions were reasonable is in and of itself enough to sup-

port the affidavit is in effect to seek the Court’s ex post facto

blessings on a search already concluded. Obviously, the

Fourth Amendment requires more.

III.

An examination of the subject search warrant (Appendix

D) indicates that it is not directed to any party or class

of persons for execution. The directive word “To” is

simply followed by an empty blank space. Petitioner’s

position that such an omission from the search warrant

renders it invalid on its face presents a question of some

importance to the federal criminal jurisprudence.

The applicable rule in effect at the time of the search was

FR Crim P 41(¢), which provided as follows:

“A warrant shall issue only on affidavit sworn to

before the judge or commissioner and establishing

the grounds for issuing the warrant. If the judge

or commissioner is satisfied that grounds for the

application exist or that there is probable cause to

believe that they exist, he shall issue a warrant

identifying the property and naming or describing

the person or place to be searzhed. The warrant

shall be directed to a civil officer of the United

States authorized to enforce or assist in enforcing

any law thereof or to a person so authorized by the

PAS ses a

President of the United States. It shall state the

grounds or probable cause for its issuance and the

names of the persons whose affidavits have been

taken in support thereof. If shall command the

officer to search forthwith the person or place named

for the property specified. The warrant shall direct

that it be served in the daytime, but if the affidavits

are positive that the property is on the person or in

the place to be searched, the warrant may direct

that it be served at any time. It shall designate the

district judge or the commissioner to whom it shall

be returned. (Emphasis supplied.)

On April 24, 1972, the rule was amended (the effective

date being October 1, 1972), to read as follows:

A warrant shall issue only on an affidavit or affi-

davits sworn to before the federal magistrate or

state judge and establishing the grounds for issuing

the warrant. If the federal magistrate or state judge

is satisfied that grounds for the application exist

or that there is probable cause to believe that they

exist, he shall issue a warrant identifying the pro-

perty and naming or describing the person or place

to be searched. The finding of probable cause may

be based upon hearsay evidence in whole or in part.

Before ruling on a request for a warrant the federal

magistrate or state judge may require the affiant to

appear personally and may examine under oath

the affiant and any witnesses he may produce, pro-

vided that such proceeding shall be taken down by

a court reporter or recording equipment and made

part of the affidavit. The warrant shall be directed

to enforce or assist in enforcing any law thereof or

to a person so authorized by the President of the

United States. It shall command the officer to

search, within a specified period of time not to ex-

ceed 10 days, the person or place named for the

property specified. The warrant shall be served in

the daytime, unless the issuing authority, by appro-

priate provision in the warrant, and for reasonable

cause shown, authorizes its execution at times other

than daytime. It shall designate a federal magistrate

to whom it shall be returned.

Deleted from Rule 41(c) was the requirement that the

warrant itself state the grounds for its issuance and the

names of the affiiants. Remaining intact, of course, was

the command that the person or class of persons authorized

to serve it shall be stated in the warrant itself. Certainly

this indicates an intention not to abandon the requirement

that such direction be made a part of the warrant; other-

wise that portion of the rule could well have been eliminated

as unnecessary paper work.

The caption and direction in a search warrant has been

construed as an essentianl part of that warrant, the omis-

sion of which makes the warrant fundementally defective.

Leonard v United States, 6 F2d 353, 355 (1 Cir 1925) ;

United States v Smith, 16 F2d 788 (SD Fla 1927).

The Court of Appeals failed to deal directly with the

question presented herein, despite its obvious importance

to federal criminal jurisprudence. This Court should grant

certiorari, Petitioner submits, and render final and author-

itative decision with respect to the effect of the clear

language of FR Crim P 41(c).

IV.

The facts are uncontroverted that the only article des-

cribed in the aflidavit supporting the search warrant (Ap-

6 TORE Se oer

OD Ad NR ~~ ee

pendix D) was the 3,200 grams of cocaine to be delivered

to Defendant’s premises. Prior to the forcible entry, agents

Verklan, Back and Liming were informed by the couriers

that the delivered cocaine had been placed in the office

section of the home (PT 105). The sixteen law enforcement

officers secured the safety of the premises within a few

minutes after their entry and gathered all the occupants

into the living room (PT 25, 74).

At or about the same time, Special Agent Jesse Back

entered the office, approached the cabinet, opened the right

door, and exuberantly shouted out that he had found the

delivered cocaine (PT 105). Agent Verklan performed a

field test to confirm that the brown bag contained cocaine.

Agent Nilsen then proceeded to take several pictures of

the contraband (PT 115-117).

Notwithstanding the fact that the sought-after article

had been found and the premises had been safety secured,

the law enforcement officials contained to search and comb

the premises for up to two hours in the hopes of finding

any kind of additional incriminating evidence. The sub-

sequent search probed into numerous drawers, dressers and

file cabinets (PT 35 et. seq.). Agent Back continued to

search the office (PT 99). Upon opening the other cabinet

drawer, he found a closed attache case, raised its lid and

found an additiona: amount of cocaine (PT 100). In the

master bedroom, Agent Best found a small quantity of

contraband in a night stand drawer (PT 146). Hundreds

of additional items, ranging from passports, blank calendar

pads, pictures, letters, sales receipts, watches, jewelry,

piggy banks and currency were seized and brought into

the living room (PT 35-46, 145).

An evidentiary hearing was conducted on March 23,

1973, and evidence was heard with respect to a motion to

suppress. Counsel for the defense stated that the purpose

of the hearing was to show facts that outside of the one

item mentioned in the search warrant, hundreds of items

were taken, not incidental to a lawful arrest, not mentioned

in the search warrant, and not within the plain view of

the officers. Later, on April 13, 1973, the court held that

much of the seized items would be suppressed from evid-

ence, although the narcotics, the scales, and the spoons

would be admitted into evidence as instrumentalities. (Ap-

pendix E).

This decision, affirmed without discussion in the Court

of Appeals, ignores the mandate of Marron v United States,

275 US 192, 195-196, 72 L Ed 231, 236, 237, 48 S Ct 74

(1927), in which this Court held that a search continuing

past the scope of a valid warrant is precisely the type of

general search that is proscribed by the Fourth Amend-

ment.

The requirement that warrants shall particularly

deseribe the things to be seized makes general

searches under them impossible and prevents the

seizure of one thing under a warrant describing

another. As to what is to be taken, nothing is left

to the discretion of the officer executing the war-

rant. 275 US at 195-96. (Emphasis supplied.)

Petitioner is mindful that courts have carved out a num-

ber of exceptions to the strong language of Marron. Cer-

tain undescribed items may be seized pursuant to a search

warrant where those items come to the executing officers’

attention during the proper execution of the warrant, and

where said items bear a reasonable relationship to the pur-

pose of the search, United States v Cook, 432 F2d 1093

(1970) ; Mesmer v United States, 405 F2d 316 (1969).

nce a eee —

The continuing scope and validity of Marron, supra, is

a matter regarding which direction from this Court is

essential. While the principle expressed in Marron has

been recently underscored by the Court in Stanley v

Georgia, 394 US 557 (1969), the question of the proper

scope of searches incident to warrants continues, and,

Petitioner submits, represents an area of federal criminal

jurisprudence and Fourth Amendment Law which is in

need of explication by the Court.

Moreover, the case at bar presents a peculiar problem

regarding the proper scope of the warrant itself. While

both the affidavit and the search warrant itself (Appendices

C and D) referred to “cocaine and other narcotic drugs

and the means and instruments for acquiring, possessing

and dispensing same,” no facts set forth in the affidavit

are presented with respect to anything except the cocaine

which was the subject of the controlled delivery. The posi-

tion of Petitioner is that mechanistic and ritualistic phrases

such as “means and instrumentalities” cannot be used to

defeat the plain meaning of the Fourth Amendment, and

that notwithstanding the language of the warrant, no

search for anything save the described cocaine was justified

or proper under the facts as presented to the magistrate.

The trial court in the case at bar refused to permit

counsel for Petitioner to inquire as to the current addresses

of the key Government witnesses (See Appendix F'). These

rulings are a clear departure from well-established pre-

cedent and rulings of this Court.

The Court’s ruling denying Petitioner’s right to inquire

into the present address of Government informer Douglas

Kapp on the basis that such inquiry is irrelevant, is patent-

ly erroneous. The right to cross-examine a witness as to his

present address has long been affirmed by this Court and

inferior federai courts as a necessary adjunct to an effective

implementation of the Sixth Amendment right of con-

frontation. Alford v United States, 282 US 687 (1931);

Smith v Illinois, 390 US 129, (1968); see United States v

Mills, 366 F2d 512 (6th Cir 1966) ; United States v Lyon, 397

F2d 505, 511 (7th Cir 1968); United States v Marchesani,

457 F2d 1291, 1297 (6th Cir 1972).

Forty years ago, this Court held in Alford, supra, that

it is error to require a showing of materiality, as the trial

judge did here, since a question as to address may be used

as a basis for further inquiry. Referring to Alford, supra,

the Court in United States vy Lyon, supra at 511 stated:

“The purpose of the inquiry is to make known to the jury

the setting in which to judge the character veracity or bias

of the witness.” In Alford, supra, the Court, in recognizing

the manifest relevancy of inquiry into a witness’ address,

stated:

Counsel often cannot know in advance what per-

tinent facts may be elicited on cross-examination.

For that reason it is necessarily exploratory; and

the rule that the examiner must indicate the purpose

of his inquiry does not, in general, apply. 282 US

at 692.

The trial judge further sustained the Government’s ob-

jection to the inquiry of witnesses Christian and Helton’s

present addresses on a two-pronged rationale: (1) failure

of defense counsel to “tell the Court some good reason why

you need to know these addresses, and (2) the court’s

taking “judicial notice of the fact that a narcotics case

involving narcotics of the amount involved in this case are

dangerous cases and these pose danger to any witness

testifying against the defendant . . .’, (TT 5/2/73, p 320).

Petitioner submits that both prongs supporting the court’s

ruling are erroneous as a matter of law, and directly ignore

this Court’s clear and unequivocal pronouncements.

The salutory opinion of this Court in Smith, supra, bear-

ing directly on the issue raised by Petitioner, merits con-

siderable attention. In Smith, as in the case at bar, the

principal witness against the Petitioner, in a conviction

based upon the illegal sale of narcotics, was a government

informer. The Court reversed that petitioners conviction

because of the trial court’s sustaining the prosecutor’s

objection to defense counsel’s cross-examination of the

witness’ real name and actual present address. The Court

in so ruling, noted:

~ In Pointer v State of Texas, 380 US 400, 403, 85

S Ct 1065, 1068, 13 L Ed 2d, 923, this Court held

that the Sixth Amendment right of an accused to

confront the witnesses against him is a “fundamental

right...”

As the Court said in Pointer, “It cannot seriously

be doubted at this late date that the right of cross-

examination is included in the right of an accused

in a criminal case to confront the witnesses against

him” 380 US at 404, 85 S Ct at 1068. Even more re-

cently we have repeated that “[a] denial of cross-

examination without waiver ... would be constitu-

tional error of the first magnitude and no amount of

showing of want of prejudice would cure it.” Brook-

hart v Janis, 384 US 1, 3, 86 S Ct 1245, 1246, 16

L Ed 2d 314.

In the present case there was not, to be sure, a

complete denial of all right of cross-examination.

But the petitioner was denied the right to ask the

principal prosecution witness either his name or

where he lived, although the witness admitted that

the name he had first given was false. Yet when

the credibility of a witness is in issue, the very

starting point in “exposing falsehood and bringing

out the truth” through cross-examination must

necessarily be to ask the witness who he is and where

he lives. The witness’ name and address open count-

less avenues of in-court examination and out-of-court

investigation. To forbid this most rudimentary in-

quiry at the threshold is effectively to emasculate

the right of cross-examination itself.

In Alford v United States, 282 US 687, this Court

almost 40 years ago unanimously reversed a federal

conviction because the trial judge had sustained

objections to questions by the defense seeking to

elicit the “place of residence” of a prosecution wit-

ness over the instance of defense counsel that “the

jury was entitled to know ‘who the witness, is where

he lives and what his business is’” 282 US at 688-

689, 51 S Ct at 218. What the Court said in revers-

ing that conviction is fully applicable here:

“Tt is the essence of a fair trial that reasonable

latitude be given the cross-examiner, even though

he is unable to state to the court what facts a

reasonable cross-examination might develop. Pre-

judice ensues from a denial of the opportunity to

place the witness in his proper setting and put

the weight of proceeding . . .” 380 US at 407-408,

85 S Ct at 1070. In this state case we follow the

standard of Alford and hold that the petitioner

was deprived of a right guaranteed to him under

the Sixth and Fourteenth Amendments of the

Constitution. (Emphasis supplied.) Smith, supra,

390 US 129, 131-133.

Succinctly stated, the record in the instant case shows

the impropriety of the Court’s “judicial notice” that cases

involving large amounts of narcotics pose danger to the

safety of witn’sses testifying against the defendant. Neither

the Governmeui aor Court was able to show any evidence

beyond a speculative and unsubstantiated contention that

the witnesses’ personal safety might possibly be endangered.

The net effect of the Court’s ruling restricting the latitude

of Petitioner’s cross examination thus violated his right

of confrontation as guaranteed to him under the Sixth

Amendment, and represents a clear departure from well-

considered and established decisions of this Court.

CONCLUSION

It is therefore respectfully submitted that the Petition

for a Writ of Certiorari should be granted.

Respectfully submitted,

FREDERICK R. BELLAMY

NEIL H. FINK

APPENDIX A

NO. 73-1796

United States Court of Appeals

FOR THE SIXTH CIRCUIT

—_——~—————

United States of America, : Appeal from the

Plaintiff-Appellee, | United States District

v | Court for the Eastern

Leroy Frank Collier, District of Michigan,

Defendant-A ppellant. : Southern Division.

——4——

Decided and Filed March 27, 1974.

—_—>————

Before: Weick and Lively, Circuit Judges, and Rosen-

stein, Senior Customs Judge.*

Per Curiam. Appellant Collier was convicted after jury

trial on the following counts: Count I, conspiracy to import

cocaine in violation of 21 USC §963; Count II, engaging in

a continuing criminal enterprisé relating to a conspiracy

to import and possess cocaine in violation of 21 USC §848;

Count III, possession of cocaine with intent to distribute

in violation of 21 USC §841(a)(1). Of the numerous issues

raised on this appeal, only the two challenging the con-

stitutionality of 21 USC 4848 and the sufficiency of the

affidavit underlying the search warrant involved herein

merit extended discussion. We affirm.

* Senior Judge Samuel M. Rosenstein, United States Customs Court,

sitting by designation.

The facts are substantially as follows: In May, 1972,

Douglas R. Kapp and Kathy Lucas, a/k/a Casey Lucas,

were arrested at Miami International Airport, Miami,

Florida, as they attempted to pass through customs when

it was discovered that they were transporting six pounds

of unadulterated cocaine. Shortly thereafter, complying

with a request to cooperate, they informed customs officials

that they had been hired by Collier to pick up the cocaine

in South America and transport it to Detroit, Michigan,

where they were to contact him at his home for delivery

instructions.

Based on this information, customs officials decided to

conduct a controlled delivery of the cocaine. Accordingly,

Kapp and Lucas were flown to Detroit where Kapp made

the pre-arranged telephone contact with Collier concerning

the delivery of the cocaine. The ensuing exchange occurred

during this conversation:

Kapp: I got hung up down there a little.

Collier: But you’re cool?

Kapp: Yeh.

Collier: Okay beautiful. Tomorrow send Casey

by with that and I’ll send her back, send something

back for you with her.

Thereafter, customs agent Back, in quest of a warrant

for the search of Collier’s home, submitted an affidavit

which included the following statement:

“On May 31, 1972, at 1:25 am., a telephone call

was placed by Kapp per his pre-arranged instruc-

tion with cocaine consignee, identified as Leroy

Collier to telephone number (313) 355-2199. Kapp

was instructed by Collier to have Kathy Sue Lucas

deliver the cocaine to his house later on this date.

Collier instructed Kapp that his address was 18470

George Washington St., Southfield, Michigan.

99 |

At approximately 12:00 noon, May 31, 1972, Lucas

will deliver the cocaine to Collier’s address in the

company of Agents of US Customs.”

On the basis of the affidavit, a Magistrate issued a war-

Tant authorizing the search of Collier’s home for the speci-

fied cocaine and any means and instrumentalities used for

possessing or dispensing of such. Thereafter, agents per-

mitted Lucas to deliver the cocaine to Collier at his home.

After she departed, they entered the premises, conducted

a thorough search and seized evidence including the con-

trolled delivered cocaine.

Appellant claims that the statements contained in the

affidavit to the effect that he told Kapp to have Lucas

deliver “cocaine” to his house and also advised him of his

address were totally erroneous. Inasmuch as this recital

“struck at the heart of probable cause” and was the primary

basis for the issuance of the search w arrant, Collier alleges

_ that the lower court erred in overruling his motion to sup-

press all the evidence seized during the search of his home.

While it is undisputed that Collier did not specifically

utter the word “cocaine” or announce his address during

the telephone conversation with Kapp, judging from the

events leading up to that conversation, we do not feel that

these references were erroneous. Rather, they appear to

be the only reasonable interpretation of what was said.

Admittedly, agent Back could have beer. more precise;

however, when considering the sufficiency of an affidavit,

. the following guidelines must be applied:

“The Fourth Amendment’s commands, like all

‘constitutional requirements, are practical and not

abstract. If the teachings of the Court’s cases are

to be followed and the constitutional policy served,

affidavits for search warrants, such as the one in-

BEELER OP AGES

volved here, must be tested and interpreted by

magistrates and courts in a commonsense and re-

alistic fashion. They are normally drafted by non-

lawyers in the midst and haste of a criminal in-

vestigation. Technical requirements of elaborate

specificity once exacted under common law pleadings

have no proper place in this area. A grudging or

negative attitude by reviewing courts toward war-

rants will tend to discourage police officers from

submitting their evidence to a judicial officer before

acting.” United States v Ventresca, 380 US 102,

108 (1965); United States v Harris, 403 US 573, 577

(1970).

in tight of the above, we conclude that the affidavit was

sufficient to establish probable cause for issuance of the

search warrant. - )

With regard to the issue challenging the constitutionality

of 21 USC $848, appellant maintains that this provision

is vague on its face, thus depriving him of liberty and

property without due process of law. We disagree with

this assertion and concur in the recent Second Circuit case

of United States v Manfredi, —— F2d -— (1973), in which

it was stated:

EE TEES LL eR IONE Rae nme cee tnt

“ . . the statute might have been more artfully

drawn, but no language has occurred or has been

suggested to us that better‘ expresses the congres-

sional purpose. To sustain appellant LaCosa’s posi-

tion would force us to hold that ‘words cannot be

devised to make it an offense to engage in the con-

tinuous sale and trafficking in heroin with a number

of other people and with substantial sums of money

changing hands; we feel that not to be the case and

that, as applied to the conduct with which Joseph

LaCosa was charged, Broadrick v Oklahoma, ——

US —— (1973), is not unconstitutionally vague.”

All other issues tendered in appellant’s brief do not war-

rant discussion.

Affirmed.

APPENDIX B

MEMORANDUM OPINION

(US District Court—Kastern District of Michigan

Southern Division)

Defendant Leroy Frank Collier seeks in this motion to

quash Count II of the Indictment which charges defendant

with violating 21 USC §848, the Continuing Criminal En-

terprise Section of the Comprehensive Drug Abuse, Pre-

vention and Control Act. Under §848 it is unlawfu! for

any person to engage in a continuing criminal enterprise.

Subsection (b) of this statute defines continuing criminal

enterprise as follows:

“A person is engaged in a continuing criminal en-

terprise if—

(1) he violates any provision of this subchapter or

subchapter II of this chapter the punishment for

which is a felony, and

(2) such violation is a part of a continuing series of

violations of this subchapter or subchapter II of

this chapter—

(A) which are undertaken by such person in con-

cert with five or more other persons with re-

spect to whom such person occupies a posi-

tion of organizer, a supervisory position, or

any other position of management, and

(B) from which such person obtains substantial

income or resources. (Emphasis added.)

Defendant claims that the terms “continuing series” and

“substantial income” italicized above are so vague that

they fail to warn an individual of the criminal conse-

quences of this conduct and thus deprive him of due pro-

cess of law. Count II of the Indictment incorporates

Counts I and III of the Indictment and charges in the

language of the statute that the violations listed in Counts

I and III are a part of “a continuing series of violations

of subchapters I and II . . .” In addition Count II

charges that defendant obtained substantial income from

said continuing series of violations.

Count I charges defendant with violating 21 USC 4693.

That section provides

“Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not ex-

ceed the maximum punishment prescribed for the

offense, the commission of which was the object of the

attempt or conspiracy.”

Allegedly the defendants in this case conspired to violate

sections 952(a) and 960 which provide that it is illegal

to import controlled substances into the customs territory

of the United States or into the United States.

Count III alleges that defendant Leroy Collier, on or

about May 31, 1972, did knowingly and intentionally un-

- Ph...

lawfully possess with intent to distribute approximately

eight kilograms of cocaine in violation of 4§841(a) and 841

(b)(1)(A).

The parties disagree as to the parameters of this Court’s

examination of the statute. Defendant contends that the

Court must view the statute on its face, while the Govern-

ment maintains that we must view the statute in light of

evidence presented on the Government’s case. In other

words the Government views the motion as being prema-

ture. We do not agree with either of the positions pre-

sented for the reasons set forth below.

As discussed in the briefs submitted by the parties, a

criminal statute must adequately warn an individual of the

criminal consequences of his conduct. Jordan v DeGeorge,

341 US 223 (1951). However, not every ambiguity in a

statute renders it unconstitutional. Thus the mere fact

that the exact parameters of the statute are unclear does

not prevent proper application of the statute to conduct

clearly within the hounds of the statute. Thus, in United

States v National Dairy Products Corp, 372 US 29, 32

(1963) the Court said:

The strong presumptive validity that attaches to an

Act of Congress has led this Court to hold many times

that statutes are not automatically invalidated as

vague simply because difficulty is found in determin-

ing whether certain marginal offenses fall within their

language . . . In determining the sufficiency of the

notice a statute must of necessity be examined in the

light of the conduct with which a defendant is

charged.

In that ease the defendants were charged with violating

§3 of the Robinson-Patman Act which prohibits sale of

roods at “unreasonably low prices” for the purpose of

OP Oo or ee

SEI SE TORY eR

destroying competition. The indictment charged the de-

fendants specifically with selling “below cost”. The court

said that in light of the principles set forth heretofore if

§3 gave defendants “sufficient warning that selling below

cost for the purpose of destroying competition is unlawful,

the statute is constitutional as applied to them.” (Empha-

sis added.) Thus a statute is not always viewed on its face

alone. See also US v Raines, 362 US 17, 22 (1960).

In US v Raines, supra, at p 22, the court reached

this same conclusion, stating that a defendant is limited to

his own situation in determining constitutionality. The

court went on to list, however, the exceptions to that rule

as follows:

a) Where the rights of others not before the court

would be impaired and where there is no way to

preserve these rights;

b) Where the statute inhibits free speech ;

c) Where a statute has been declared unconstitutional

as to so many situations that it is no longer vital.

None of these situations covers the case at bar. See also

Daulton v US, (6th Cir 72-1891, Mar. 1, 1973).

Thus it is true as defendant points out that in many

eases the Supreme Court has viewed statutes on their

face. But the cases cited by defendant involved statutes

that fell within the execptions listed in Raines, supra.

Thornhill vy Alabama, 310 US 88 (1940); Coates v City

of Cincinnati, 402 US 611 (1971); Dombrowski v Pfister,

380 US 479 (1965); NAACP v Button 371 US 415

(1963), and Lanzetta v New Jersey, 306 US 451 (1939),

eases cited by defendant, were all cases in which the stat-

utes were alleged to infringe on the First Amendment

rights of individuals. Connally v General Construction

Co, 269 US 385 (1926), another case relied upon by de-

fendant clearly discussed the facts underlying the declara-

tory judgment action. The statute was viewed in light

of the fact situation before the Court. It is true that in

Giaccio v Pennsylvania, 382 US 399 (1966), the court

viewed a statute on its face which did not involve First

Amendment problems. But the statute in question in-

volved the right of the jury on a misdemeanor trial to

assess costs against an acquitted defendant. There was no

conduct to review. The evidence presented at trial had no

bearing on the statute. The only manner in which the

statute could ever be reviewed was on its face.

Thus, the court in National Dairy, supra, stated where

First Amendment rights are not involved and where the

statute is directly only at

“activity which is neither constitutionally protected nor

socially desirable, we are thus permitted to consider

the warning provided by §3 not only in terms of the

statute ‘on its face’ but also in the light of the con-

duct to which it is applied.”

See also Coates v City of Cincinnati, supra, at p 61S (dis-

sent of J. White) and Beyce Motor Lines v United States,

342 US 337, 343 (1952).

Under these circumstances this Court finds that it may

look at the conduct charged in the Indictment and deter-

mine whether the language of the statute advised the de-

fendant that this particular conduct violated the statute.

We note, however, that we find no authority to look be-

yond the Indictment to facts which may be proved at trial.

The cases we have reviewed talk in terms of conduct

charged and not conduct which may be proved on the trial

of the case.

In the case of Boyce Motor Lines, Inc v US, 342 US

337 (1952) the defendant tried to introduce certain facts

not contained in the Indictment in its motion to dismiss

the Indictment because of the unconstitutionality of the

statute in question. The Supreme Court said at page 343,

But that is plainly a matter for proof at the trial.

We are not so conversant with all the routes in that

area that we may, with no facts in the record before

us, assume the allegations of the indictment to be

false.

In a footnote to this section the court stated

This case is here to review the granting of a motion

to dismiss the indictment. It should not be necessary

to mention the familiar rule that, at this stage of the

case, the allegations of the indictment must be taken

as true.

This case seems to make clear that only the Indictment

may be viewed by the court in determining the conduct al-

legedly in violation of the statute. Under these circum-

stances the statemenis in the Government’s brief of facts

that will be shown at trial or which appear in depositions

are not properly before the court at this time on this

motion.

However, where the Indictment merely sets forth the

charge in the language of the statute the statute can only

be viewed on its face. In US v Cohen Grocery Com-

pany, 255 US 81 (1921), a case distinguished, but not

overruled in National Dairy Products, supra, the court

held a statute unconstitutional where the Indictment mere-

ly named the price collected and charged in the exact lan-

guage of the statute that defendant had charged an “un-

just or unreasonable rate.” The court held that no specific

or definite act was proscribed by the statute or alleged in

the Indictment. Moreover, the court found no standard

which could be impliedly encompassed by the statute leav-

ing the determination of the meaning of “unjust” and “un-

reasonable” totally to the discretion of the court and the

jury. Under these circumstances, the court held the statute

unconstitutional.

The first phrase that troubles defendant is “continuing

series of violations.” As to the word “continuing” the

court is concerned with the time period encompassed by

this term. Webster’s New World Dictionary (2d Ed 1972)

defines continuing as “to remain in existence or in effect;

last; endure.” In US v Midstate Horticultural Co, 306

US 161 (1939) the court in determining a question of venue

was required to determine whether the crime was a “con-

tinuing offense”. The court defined continuing offense as

a “continuous, unlawful act or series of acts set on foot

by a single impulse and operated by an unintermittent

force, however long a time it may occupy.” See, also, State

v O C Johnson, 212 NC 566 (1937) at p 570; Black’s

Law Dictionary (4th Ed 1951) “Continuing”. Enduring;

not terminated by a single act or fact; subsisting for a

definite period or intended to cover or apply to succes-

sive similar obligations or occurrences.” Thus the term

“continuing” on its face seems to have acquired a reason-

ably clear meaning through judicial interpretation.

The term “series” is defined often as meaning three or

more related events. See Webster’s Third New Interna-

tional Dictionary, 1966. In Tarsia v Nick’s Laundry &

Linen Supply Co, 239 Or 562 (1965), the court read a

civil statute prohibiting a “series of acts” to mean three

or more “things or events standing or succeeding in order

ge Le re nee 2S EDIE IT EPR ELE LY TNS TI PE te NG ORE HO

ae 4 a * > Se NES. 2a es

and having like relationships to each other.” In Tarsia

the court reversed the judgment against defendant because

only two, not three related and prohibited acts had been

proven.

The word “series” would seem in light of dictionary defi-

nitions and Tarsia to mean three or more related acts and

thus we find that term alone is not vague even on its face.

We note that only two specific violations of the chapters

in question have been alleged in the Indictment. How-

ever, we view this as a matter of proof on the trial of this

ease. The Indictment does not state that “these two al-

leged violations constitute a continuing series of viola-

tions”, but only alleges that they are part of a “continu-

ing series of violations.” Moreover, certain of the overt

acts set forth in Count I of the Indictment, namely, para-

graphs 3 and 13, constitute violations of other sections of

the Act. Within Counts I and II of the Indictment at least

three violations of the Act appear. Thus, this Court finds

that this conduct clearly falls within the term “continuing

series of violations” even if the exact parameters of the

statute were found to be unclear. In addition, we find that

on its face the term “continuing series” is not so vague

that a person is not sufficiently warned of the consequences

of his conduct nor is it so vague that the judge and jury

will be unable to apply that term to defendant’s conduct.

The term “substantial income” also gives the defendant

trouble. Since the Indictment charges defendant in the

language of the statute, naming no dollar figure or other

figure of value, we are left with only the face of the stat-

ute in determining its scope and validity. Substantial is

defined by Black’s Law Dictionary, supra, as meaning “of

real wurth and importance; of considerable value; valu-

able.”

The Government has cited two cases involving tax stat-

utes in which courts refused to hold the term “substantial

income” void for vagueness. See Levenon v US, 157 F

Supp 244 (ND Ala 1957) and Safe Deposit & Trust

Company of Baltimore v Magruder, 34 F Supp 199 (D

Md 1940). The term substantial has appeared in many

other legal settings. Thus in the area of patent law the

court is asked to determine whether the accused device is

“substantially equivalent” to the protected device. Under

the long arm statutes of Massachusetts and Ohio the

courts have jurisdiction over entities that derive “sub-

stantial revenue from goods” sold in the state. See Stew-

art v Bus and Car Co, 293 F Supp 577 (ND Ohio, 1968)

and Mark v Obear & Sons, Inc, 313 F Supp 373 D Mass

1970).

Likewise, in the case of Joseph E Seagram and Sons,

Inc v Hostetter, 384 US 35 (1966), the court upheld the

use of the term “principal or substantial business” in a

state liquor control statute. The court said at pages 48

and 49

The claim of vagueness is centered upon the term

“principal or substantial.” We cannot agree that that

language is so vague as to be constitutionally invalid.

Although this Court has been greatly troubled by the

language of this statute, we note the remarks of the Su-

preme Court in Jordan v DeGeorge, supra, when they

were reviewing the term “moral turpitude”. The court

said in Jordan that the term had been used frequently

over the vears in statutes and had never been held con-

stitutionally vague. These circumstances, the court said,

east doubt upon a challenge to the precision of the term.

Thus, although the term “substantial” is not perhaps the

best term available, this Court finds that it is sufficiently

precise to pass constitutional muster.

PR TON

This Court has given the statute, and in particular, the

language challenged, careful consideration. We note that

in section 849 which follows the section (848) in question,

the term “substantial source of income”, as essential ele-

ment of a violation of that section, is specifically defined in

subsection (é) for purposes of section 849 alone. Certain-

ly the specificity of that definition is preferred over the

language of §848. But we are mindful of the statements

of the Supreme Court in the first case in which the court

held unconstitutional a statute promulgated by Congress.

Thus in Marbury v Madison, 1 Cranch 137, 177-180 the

court said that this power to determine the constitutional-

ity of statutes is “the gravest and most delicate duty that

this Court is called on to perform.” Moreover, a strong

presumption of validity attaches to statutes passed by

Congress.

In Boyce Motor Line v United States, swpra, at page

340, the court said:

A criminal statute must be sufficiently definite to

give notice of the required conduct to one who would

avoid its penalties, and to guide the judge in its appli-

cation and the lawyer in defending one charged with

its violatiun. But few words possess the precision of

mathematical symbols, most statutes must deal with

untold and unforeseen variations in factual situa-

tions, and the practical necessities of discharging the

business of government inevitably limit the specificity

with which legislators can spell out prohibitions.

Consequently, no more than a reasonable degree of

certainty can be demanded. Nor is it unfair to require

that one who deliberately goes perilously close to an

area of proscribed conduct shall take the risk that he

may cross the line.

With these se iialile in mind we therefore hold that the

statute in question is not unconstitionally vague in that

it does not deny defendant due process by being insuffi-

cient to warn him of the conduct that falls within the pur-

view of the statute.

In addition defendant challenges §848 on the ground

that the sentencing provision is unconstitutional in that it

vests “arbitrary discretion in the sentencing judge” in vio-

lation of the equal protection clause. Defendant also

claims that the penalty imposed constitutes cruel and un-

usual punishment. We find these arguments to be with-

out merit.

The statute is held to be constitutional and the motion

to dismiss Count II of the Indictment is therefore denied.

/s/ Ralph M. Freeman

United States District Judge

Dated: April 26, 1973.

To: Robert P. Hurlbert

Assistant United States Attorney sage

809 Federal Building

Detroit, Michigan 48226

Neil H. Fink

3300 Guardian Building

Detroit, Michigan 48226

S. Allen Early, Jr.

3300 Guardian Building

Detroit, Michigan 48226

APPENDIX C

AFFIDAVIT FOR SEARCH WARRANT

(US District Court—Eastern District of Michigan—

Southern Division)

United States of America

18470 George Washington St., Southfield, Mi; 2nd house

west of the intersection of George Washington St. and

Continental Ave., located on North side of street. 1 story,

stucco-brick front, attached 2 car garage on west side of

house. Circle drive in front, fully enclosed swimming pool

in rear. Spanish-type arches on front of dwelling. Yellow-

ish-brown in color.

Before Hon. Paul J. Komives, Federal Bldg., Detroit,

Michigan 48226.

The undersigned being duly sworn deposes and says:

That he is positive’ that on the premises known as

18470 George Washington Street, Southfield, Mi; 2nd

house west of the intersection of George Washington St.

and Continental Ave., located on north side of street. 1

story, stucco-brick front, attached 2 car garage on west

1The Federal Rules of Criminal Procedure provide: “The warrant

shall direct that it be served in the daytime, but if the affidavits are posi-

tive that the property is on the person or in the place to be searched,

the warrant may direct that it be served at any time.” (Rule 41C)

side of house. Circle drive in front, fully enclosed swim-

ming’ pool in rear. Spanish type arches on front of dwell-

ing. Yellowish-brown in color, in the Eastern District of

Michigan, there is now being concealed certain property,

namely cocaine and other narcotic drugs and the means

and instruments for acquiring, possessing and dispensing

same which are possessed contrary to Section 841(a)(1),

Title 21, United States Code.

And that the facts tending to establish the foregoing

grounds for issuance of a Search Warrant are as follows:

On May 30, 1972, at 6:25 p.m. at Miami International

Airport, Miami, Fla. at the US Customs Inspection

Area, arriving from Cali, Columbia, South America, Bran-

iff International Airlines Flight’ 906, a secondary search

of passenger Douglas Reinaldo Kapp revealed 1550 grams

of unadulterated cocaine concealed in a woman’s girdle

which he was wearing. A second search of a fellow pas-

senger, Kathy Sue Lucas, revealed 1650 grams of unadul-

terated cocaine concealed in.a girdle she was wearing. A

field test conducted by US Customs officers revealed a

positive reaction for cocaine. Both subjects were arrested,

advised of certain constitutional rights, and agreed to co-

30, accompanied by Special Agents of the US Bureau of

- Customs.

Qn May 31, 1972, at 1:25 a.m., a telephone call was

placed by Kapp per his pre-arranged instruction with co-

caine consignee, identified as Leroy Collier to telephone

number (313) 355-2199. Kapp was' structed by Collier

to have Kathy Sue Lucas deliver the cocaine to his house

later on this date. Collier instructed Kapp that his ad-

dress was 18470 George Washington St., Southfield, Mich.

_ At approximately 12:00 noon, May 31, 1972, Lucas will

deliver the cocaine to Collier’s address in the company

of a csi of US Customs.

Jesse M. Back

Special Agent,

| US Bureau of Customs

Sworn to before me, and subseribed i in my presence, May

‘31, 1972.

| Motion Exhibit III

APPENDIX D

SEARCH WARRANT

(U. S. District Court—Kastern, District of Michigan—

Southern Division)

United States of America

Vs.

18470 George Washington Street, Southfield, Mi; 2nd

house west of the intersection of George Washington

St. and Continental Ave., located on north side of street.

1 story, stucco-brick front, attached 2 car garage on west

side of house. Circle Drive in front. Fully enclosed swim-

1The Federal Rules of Criminal Procedure provide: “The warrant

shall direct that it be served in the daytime, but if the affidavits are posi-

tive that the property is on the person or in, the place to be searched,

' the warrant may direct that it be served at any time.” (Rule 41C)

ming pool in rear. Spanish type arches on front of dwell-

ing. Yellowish-brown in color.

Affidavit having been made before me by Special Agent

Jesse M. Back, Bureau of Customs, that he is positive’

that on the premises known as 18740 George Washington

Street, Southfield, Mi; 2nd house west of the intersection

of George Washington St. and Continental Ave., located

on north side of street. 1 story, stueco-brick front, at-

tached 2 ear garage on west side of house. Circle drive in

front, fully-enclosed swimming pool in rear. Spanish type

arches on front of dwelling. Yellowish-brown in color, in

the Eastern District of Michigan, there is now being con-

cealed certain property, namely cocaine and other nar-

cotic drugs and the tueans and instruments for acquiring,

possessing and dispensing same which are possessed con-

trary to Section 841(a)(1), Title 21. United States Code,

and as I am satisfied that there is probable cause to be-

lieve that the property so described is being concealed on

the premises above described and that the foregoing

grounds for application for issuance of the search warrant

exist.

You are hereby commanded to search forthwith the

place named for the property specified, serving this war-

rant and making the search at any time in the day or

night’ and if the property be found there to seize it, leav-

ing a copy of this warrant and a receipt for the property

taken, and prepare a written inventory of the property

seized and return this warrant and bring the property be-

fore me within ten days of this date, as required by law.

Dated this 3lst day of May, 1972.

Paul J. Komives,

U. S. Magistrate.

COMPLAINT

(U. S. District Court—Eastern District of Michigan—

Southern Division)

Before Hon. Paul J. Komives, U. S. Magistrate, in the

Federal Building, Detroit, Michigan:

The undersigned complainant being duly sworn, states:

That on or about May 31, 1972, at........ in the East-

ern District of Michigan, Southern Division, Leroy Frank

Collier and Lizzie Mae Collier, knowingly and intention-

ally did unlawfully possess with intent to distribute ap-

proximately 15 pounds of cocaine, a Schedule I, narcotic

drug substance; in violation of Title 21 U.S.C. $841(a)(1).

And the complainant states that this complaint is based

on the fact that the defendants were found in possession

of the aforedescribed cocaine by Special Agents of the

Bureau of Customs and the Bureau of Narcotics and Dan-

gerous Drugs in the course of executing a search warrant

at 18740 George Washington Street, Southfield, Mi, the

residence of the defendants.

And the complainant further states that he believes that

the Special Agent Jesse M. Back, Bureau of Customs and

Special Agent Thomas Kostecke, Bureau of Narcotics and

Dangerous Drugs and the complainant are material wit-

nesses in relation to this charge.

Signature of Complainant

John Verklan, Special Agent

Official Title

Bureau of Customs

Sworn to before me, and subscribed in my presence,

May 31, 1972.

APPENDIX E

ORDER DENYING IN PART DEFENDANT'S MOTION

TO SUPPRESS ALL EVIDENCE

(237) Detroit, Michigan

Friday, April 13, 1973

9:15 o’clock, A.M.

The Clerk: No. 47977. United States of America v Le-

roy Frank Collier, and others.

The Court: Two days ago on April 11, I ruled on cer-

tain matters or aspects of some of the motions filed in this

case and stated, as I recall it, the posture of those motions

and at the conclusion of the arguinents on that date I took

under advisement the motion to dismiss Count Two and

also the issue presented by the motion to suppress as to

whether mere evidence could be seized under the warrant.

I will now dispose of those two matters.

I deny the motion to dismiss Count Two, although I

must say I am troubled by that matter and I think I have

said enough already to indicate that I was troubled by it.

I will issue a memorandum opinion in a few days setting

forth my reasons.

In disposing of the motion at this time I think it’s ob-

vious that I reject the Government’s contention that the

Court should, that the motion is premature, that the Court

should await the evidence in ruling on the motion. It was

the position of the defendants that the Court, under the

ORS ee A ere

(238) The Court:

The remaining issue that I must decide before the case

goes to trial is whether or not under the search warrant

the officers were entitled to seize more evidence as dis-

tinguished from instrumentalities as fruits of the crime.

As I read Warden v Hayden, which was by the way a

warrantless search, I believe that was the first instance

where the Supreme Court recognized the equivalency of

evidence with means and instrumentalities and authorized

the seizure of mere evidence. The Government relied to

some extent in the argument and in the supplemental brief

on the Sixth Cireuit case of US v Alloway, 397 F 2d 105;

the Munroe case, a Fifth Cireuit case, 421 F 2d 644, as

well as US v Robinson, a (239) Fed Supp case in the

Northern District of Indiana and also US v Blank, a Sixth

Cireuit case cited in 1972. The Alloway case probably

comes as close as any of these cases to allowing the seiz-

ure of evidence, but as I remember it in the Alloway case,

a certain warrant authorized a search for a weapon and

ease, is that it? I have forgotten it. I think it was, but in

any event some clothing was found in the search and then

it came a question of whether or not the clothing was

mere evidence and in that case, as I recall it, the defend-

ant’s wife admitted the officers to the premises and also

permitted them to take away the clothing.

Although the clothing did seem to be evidence and it

would certainly be evidence but then the question arose

whether or not it would be something more than evidence,

it would be an instrumentality and the court did say in

that case on page 11 of the opinion in discussing this very

point:

“Tt is not at all unreasonable to consider that the

Bond suit was part of the felon’s planned parapher-

Sane — ae

nalia and, therefore, was an instrumentality of the

criminal enterprise.”

I don’t find any case from our own research and I don’t

agree the Government has submitted any case that

squarely holds that a warrantless search for contraband

and instrumentalities impliedly authorize the right to

search (240) for evidence.

True enough, under the Hayden case they did permit

the seizure of evidence but that was a warrantless search

and a hot pursuit matter. I believe that under the authority

of that case had the officers requested of a magistrate the

right to search for evidence as well as the fruits and in-

strumentalities of the crime and the contraband the magis-

trate would have been permitted under Hayden to have

authorized such a search but they didn’t ask; the affidavit

didn’t request it and the warrant issued by the magistrate

didn’t authorize it.

So I am unable to find any authority that squarely holds

that the warrant authorizing a search for contraband and

instrumentalities of crime, unless it specifically author-

izes the search for evidence, does not impliedly grant that

right, therefore, | then hold that the items which would

fall within the category of mere evidence are improperly

seized and the motion is granted as to those items.

You gentlemen will have to pick them out. There are

about eight or ten pages. I have held the contraband, the

narcotics is properly seized, the scales, the spoons and

that sort of thing which would be imstr-mentalities. I

think | already ruled the passport was properly seized.

There may be some instrumentalities I have (241) for-

gotten, but they are rather limited I think in number and

= ~~

I already held that tiere are other large numbers of items

consisting of jewelry and cameras and items of that kind

are not properly seized.

One of the officers testified that one of the purposes in

executing a warrant of that kind was to look through the

premises for stolen goods and goods improperly imported

and matters of that kind. I don’t see that under a warrant

of this kind. Of course, anything discovered in plain view

which would be proper—there were very few things in

plain view. I think the scales are the only thing in plain

view as I remember it in this case. You can’t call some-

thing in plain view when you are going through the draw-

ers and cabinets and ali of the private places in a per-

son’s home.

There were some guns found in connection with the se-

curing of the premises and I held those were properly

seized.

I believe you gentlemen can probably agree on what

items constitute mere evidence such as for instance the

deed to the house and I think the utility bills and I think

perhaps the stubs, the last copy of the plane tickets and

matters of that kind.

Mr. Fink: All of the photographs, numerous (242) pho-

tographs were seized from the home.

The Court: Yes, I believe photographs would be evi-

dence. If you can’t agree I will try and settle that either

during or immediately before the trial.

on PEE RPP, oe Oe atone ane

Bess

APPENDIX FP

(316) RULING OF THE COURT ON WHETHER

TO PERMIT INQUIRY AS TO WITNESSES

ADDRESSES

Mr. Fink:

At the conclusion of Douglas Kapp’s direct testimony,

Counsel (317) advised the Court that he intended on cross

examination to ask Douglas Kapp’s present address but

made the Court aware of his intention because the Gov-

ernment asked that we do so in camera because the Gov-

ernment objected.

The Court ruled that his address wasn’t relevant. Sub-

sequently I have had other discussions with Mr. Hurlbert

about the other lay witnesses and he said he would pose

the same objection for the same reasons, the safety of the

witnesses. We have assumed your Honor’s ruling would

be the same and haven't attempted—

The Court: You shouldn’t assume that.

Mr. Fink: We didn’t want to do it in front of the Jury.

The Court: You don’t have to. You can do it out of the

presence of the Jury. | haven't denied you that right dur-

Mr. Fink: As to Douglas and Casey Kapp we are pro-

tected and as to Brenda Jane Helton we are not protected

because we thought we would bring it up at a later time

feeling sure the Court would rule the same way.

The Court: You shouldn’t assume that at all.

Mr. Fink: Very well, because that was never discussed

I would like to ask Miss Christian her present address an:

recall Brenda Helton and see where I go from there.

SST OT kt Oy SO Be

TIE EPR AIRS RT ETS ATR seta. toad

(318) The Court: For what purpose?

Mr. Fink: I can’t give you a reason in the first in-

stance. As I said about the Kapps, I don’t think a cross

examiner has to be bound by any specific reason. I think it

is important to put them in their proper setting and pres-

ent setting and if you cut me off on a mundane question

like that I think effectively denies me my right of con-

frontation.

The Court: First, I will ask the Government if they

have any objection.

Mr. Hurlbert: We have no objection to bringing out the

city where these people reside.

The Court: I am talking about these other witnesses,

Christian and the Helton woman.

Mr. Hurlbert: As to Christian I will object to bringing

out the precise location in the city in which she lives. I

understand she lives in the city of Detroit but I don’t see

how bringing out the exact nature of her residence, where

her residence is, is at all relevant. .

The Court: Is there any reason? Is there a security

problem or what is the reason? Let me get at that. Ordi-

narily the address of the witness is given, of course, but

there are cases and the Courts have held many, many

times that the Government need not disclose the address

of the (319) witness if they have good reason to suspect

some security problem or intimidation or something of

that kind.

Mr. Hurlbert: We have been concerned about that case

in connection with the Kapps’ testimony because of cer-

tain incidents.

The Court: I know about the Kapps and we discussed

that.

Mr. Hurlbert: All right. I have heard of no incidents

that have come to light with respect to Helton and Chris-

SEE AE RO et

tian but because of our concern as to the Kapps and be-

cause we’re dealing in the same case it is our feeling that

for security reasons to protect these two young girls it

would be better to not have their exact addresses dis-

closed which might be publicized in the newspapers and

subject them to harassment.

Although we have no objection to the disclosure of the

fact they live in the city of Detroit, I think you weigh the

two factors, the probability of disclosing their addresses

and on the other hand the possible subjection of these

girls to harassment and I think the possibility that they

may be subject to harassment weighs more heavily and I

don’t think the nature of the exact addresses has to be

disclosed to satisfy any probe of defense Counsel. I can’t

see any legitimate purpose for that question or probe and

I don’t (320) think Mr. Fink can tell the Court now that

purpose that probe does have.

The Court: I have heard that and I asked Mr. Fink

and he said that. There is no use repeating it. I have

asked Mr. Fink and he is either reluctant to tell the Court

why he wants to know this information or he doesn’t know

of any reason. That is the only alternative and for that

reason I think I will sustain the objection of the Govern-

ment. This is the type of case, and I think the Court can

take judicial notice of the fact that a narcotics case in-

volving narcotics of the amount involved in this case are

dangerous cases and these pose danger to any witness tes-

tifying against the Defendant and especially where these

people are co-conspirators and testify to dealing directly

with the Defendant or participating in the very object of

the conspiracy, one of the objects of the conspiracy and

unless you, Mr. Fink, can tell the Court some good reason

why you need to know these addresses the Court will sus-

tain the objection of the Government.

™

ASRS LO OOD MELE + TY —

Mr. Fink: Judge, it could well be I could go out and

have somebody talk to their neighbors and find out they

are the biggest liars in captivity and they have a bad repu-

tation in the community for truth and veracity. I don’t

know where it is going to go and I don’t think I have to

state (321) a specific reason. I am trying to be candid

with the Court but I think the Court knows that every

cross examiner doesn’t know exactly where every ques-

tion is going and as far as danger to the witness there is

nobody that can ever come into Court and say Collier or

East ever threatened anybody.

The Court: No, but the very nature of the case here

involved and the fact this Defendant is charged with a

substantial amount of narcotics, a large quantity of nar-

cotics in and of itself is the type of case that poses danger

to witnesses who testify against the Defendant in cases of

this kind and I can take judicial notice of that fact.

Mr. Fink: I take exception to the Court’s ruling.

The Court: All right.

Mr. Fink: May I have the benefit of that and Mr.

Early’s also?

Mr. Early: I assume that applies to me?

The Court: Yes.

Mr. Early: I will not ask the question based on the

ruling.

The Court: All right.

Mr. Hurlbert: Both Helton and Christian appeared in

the magistrate’s Court at a preliminary examination and

not once since that point in time has Mr. Fink advised me

(322) he intended to conduct a neighborhood inquiry to

determine whether or not neighbors knew those witnesses

were telling the truth. If he had done so prior to the time

of trial then perhaps there might be some foundation for

requesting those names and addresses but I think at this

point in time Mr. Fink has no basis for those addresses.

PM che eS Ae Rel wh Wal chat Ai atk A oe |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.