United States v. Bradshaw Brief for Defendant-Appellant

    United States Court of Appeals for the 
First Circuit.

No. 73 -1049.

UNITED STATES OF AMERICA,
A p p e l l e e ,

V.

HAROLD BRADSHAW,
D b f e k d a n t - A p p e l l a n t .

ON APPEAL FROM THE JUDGMENT AND COMMITMENT OF THE 

UNITED STATES DISTRICT COURT FOE THE DISTRICT OF 

MASSACHUSETTS.

Brief for the Defendant-Appellant.

E noch O’D. W oodhouse II,
40 Court Street,

Boston, Massachusetts 02108. 
(617) 227-5969

ADDISON C. GETCHELL & SON, INC. • THE LAWYERS PRINTER • BOSTON



TABLE OF CONTENTS.

Issues for review 
Statement of the case
Argument

II,

III,

Appellant was denied his right, under 
the Federal Jury Statutes and the Fifth 
and Sixth Amendments, to be indicted 
and tried by juries selected from lists 
that adequately reflected a fair cross- 
section of the community
The court below erred in allowing an 
"organizational chart" to remain before 
the j ury
It was error to deny the defendant's 
motion to suppress evidence

IV. The court below erred in denying defendant 
Bradshaw's several motions for severance

Conclusion
Appendix

1
5

10

10

21

24

24

25 

27



XI

TABLE OF AUTHORITIES CITED.

Cases.

Ballard v. United States, 329 U.S. 187 (1946)
Bihn V . United States, 328 U.S. 633 (1946)
Carter v. Jury Commission, 396 U.S. 320 (1970)
Carter v. United States, 333 F. 2d 354 (10th 
C i r . 1964)

V . New York, 332 U.S. 261 (1947)
Glasser v. United States, 315 U.S. 60 (1942)
Ingrain v. United States, 360 U.S. 672 (1959)
Labat v. Bennett, 365 F. 2d 698 (5th Cir. 1966)
Lloyd V . United States, 226 F. 2d 9 (5th Cir. 
1955)

Peters v. Kiff, 407 U.S. 493 (1972)
Rabinowitz v. United States, 366 F. 2d 34 
(5th Cir. 1966)

Rocha V . United States, 288 F. 2d 545 (9th Cir. 
1961), cert. den. 366 U.S. 948

Thiel V . Southern Pacific Co., 328 U.S. 217 
(1946)

United States v. Harvey T. Plotkin et al.,
Cr. No. 72-326-W

12
4 

13

5 
13
11, 19 
4 

13

23
20

13, 14 
15

25

12, 20

18



XIX

TABLE OF AUTHORITIES CITED (CONTINUED)

United States v. Leach, 427 F. 2d 1107 (1st Cir.
1970), cert. den. 400 U.S. 829 24

United States v. Varelli, 407 F. 2d 735 (7th 
Cir. 1969) 25

Weiss V . Johnson, 206 F. 2d 350 (2d Cir. 1953), 
cert. den. 346 U.S. 924 23

Statutes.

United States Constitution, Fifth Amendment
United States Constitution, Sixth Amendment
United States Constitution, Fourteenth 
Amendment

Due Process Clause
Equal Protection Clause
21 U.S.C. § 841(a)(1)
21 U.S.C. § 846
28 U.S.C. § 1861
28 U.S.C. § 1862
28 U.S.C. § 1863(b)(2)
28 U.S.C. §§ 1861-1869

1, 11 
1, 11

13
20
20
6
6

11
11
16
10



IV

TABLE OF AUTHORITIES CITED (CONTINUED)

Federal Jury Statutes 
1968 Jury Selection Act

Voting Rights Act of 1965

10, 11, 
15, 17
17, 18

Miscellaneous.

9 A.L.R. 2d 1046 22
"The Case for Black Juries," 79 Yale L.J.
531 (1970) 19

114 Cong. Rec. 3990 (90th Cong., 2d Sess.,
February 26, 1968) 15

Federal Rules of Criminal Procedure
Rule 30 4
Rule 52 (b) 3

Card, Jones on Evidence, Vol. 3, § 15:10 23
Gewin, The Jury Selection and Service Act of 
1968, 20 Mercer L. Rev. 349 (1969) 19

Hearings on S. 989, Subcommittee on Improvements 
in Judicial Machinery of the Senate Judiciary 
Committee, 90th Cong., 1st Sess. (1968) 14

House Report No. 1076 (90th Cong., 2d Sess.)
1968 14, 17



V

TABLE OF AUTHORITIES CITED(CONTINUED)

Scott, Photographic Evidence, Vol. 2, § 1025
U.S. Code Cong and Administrative News 1792 
(1968)

4 Wigmore on Evidence, 3d Ed., § 1230

22

14, 17
23



United States Court of Appeals for the 
First Circuit.

No. 73 -1049.

UNITED STATES OF AMERICA, 
A p p e l l .b e ,

V.

HAROLD BRADSHAW, 
D e f e n d a n t - A p p e l l a n t .

ON APPEAL FEOM THE JUDGMENT AND COMMITMENT OF THE 

UNITED STATES DISTRICT COURT FOE THE DISTRICT OF 

MASSACHUSETTS.

ISSUES FOR REVIEW.

I. Appellant was denied his right, under the federal 
jury statutes and the Fifth and Sixth amendments, to
be indicted and tried by juries selected from lists that 
adequately reflected a fair cross-section of the com­
munity.

II. The court below erred in allowing, over defendant's 
objection, a huge (3 feet by 4 feet) "organizational" 
chart drawn by the government in which the defendant was



characterised at the top as "lieutenant" and further per­
mitting it to remain on an easel before the jury through­
out trial.

III. The court below erred in denying defendant's 
motion to suppress evidence and motion for mistrial when 
testimony concerning suppressed evidence was elicited
by the government.

IV. The court below erred in its instruction to the 
j ury by:

(a) improperly defining conspiracy for the jurors;
(b) not stressing sufficiently that only the defendant 

Bradshaw's acts and statements would be considered to deter­
mine whether he became a member of the conspiracy;

(c) not stressing the relative degree of involvement
in conspiracy and acts as relates to the defendant Bradshaw.

The trial judge in his instruction to the jury (Tr. XII: 
27-28) concerning the offense of conspiracy gave 4 elements 
which the government must prove beyond a reasonable doubt:

(1) that the conspiracy was wilfully formed and was 
existing at or about the time alleged; in other words, 
between September, 1971 and February 10, 1972;

(2) that the accused in question, one of nine here, 
wilfully became a member of the conspiracy;



(3) that at least one of the conspirators thereafter 
knowingly committed at least one of the overt acts 
alleged;

(4) thf.t such overt act was knowingly done in further­
ance of some object or purpose.

It is submitted that since the gravamen of the conspir­
acy took place in Massachusetts, the court abused its 
discretion in not fully defining the specific roles of 
each respective defendant and their relative degree of 
participation to be considered in law a conspirator. It 
was also prejudicial error for defendant Bradshaw not 
to have had the trial judge discuss each overt act.

"I am not going to discuss each overt 
act alleged." (Tr. XII: 26.)

The trial judge in federal criminal cases is more than 
a moderator; he is the superintendent of the trial. He 
must preside in a manner that will promote fair and expedi­
tious development of fact and he has the duty to guide 
the jury in its deliberation by giving them instructions.
It is submitted that the failure to properly define conspir­
acy might cause invocation of Rule 52(b) of the Federal



Rules of Criminal Procedure where instruction given, refused 
or omitted constitutes "plain error."

This rule, which is in pari materia with Rule 30, 
provides:

"Plain errors or defects affecting siibstan- 
tial rights may be noticed although they 
were not brought to the attention of the 
court."

^The "plain error" rule admittedly should be applied 
with caution and only to prevent a miscarriage of justice.

However, where evidence against the defendant is scant, 
greater precision in instructions is required than in 
less doubtful cases and the "plain error" rule is more 
readily applied. Bihn v. United States, 328 U.S. 633,
639, 66 S. Ct. 1172, 90 L. Ed. 1485 (1946).

With respect to the requisite knowledge and intent to 
be deemed a conspirator, the Supreme Court has held that 
" [C]onspiracy to commit a particular substantive offense 
cannot exist without at least the degree of criminal intent 
necessary for a substantive offense itself." Ingram v. 
United States, 360 U.S. 672 at 678, 79 S. Ct. 1314 (1959).



The court there held that while there need not be proof 
that the conspirators were aware of the criminality of 
their object, they should have knowledge of the commission 
of the substantive offense to supply the element of intent.

Intent, then, to commit the substantive offense was 
deemed an essential element of conspiracy in Carter v. 
United States, 333 F. 2d 354, 356 (10th Cir. 1964).

It is submitted that the government failed to prove 
beyond a reasonable doubt that Bradshaw's minor role 
(introducing Burton to Hardy and then leaving the room; 
participating in processing in New York) gave him the 
intent to be joined to others in this conspiracy.

V. The defendant Bradshaw adopts the arguments of 
the other defendants in all issues contained in the 
statement of issues not herein briefed or argued.

STATEMENT OF THE CASE.

The defendant Harold Bradshaw was indicted on June 22, 
1972, being named as a conspirator in count I of an 
indictment with 17 other conspirators, being charged with



conspiring together to knowingly and intentionally dis­
tribute and possess with intent to distribute a quantity 
of heroin (a controlled substance under Schedule I of 
Title 21, United States Code, § 841(a)(1)); all in viola­
tion of Title 21, United States Code, § 846.

The conspiracy was alleged to have lasted from 
September, 1971, to February 10, 1972, and to have 
occurred at Lawrence, Lowell and Boston, Massachusetts; 
Long Island and New York City, New York; Washington, D.C.; 
Chicago, Illinois; and St. Thomas, Virgin Islands.

The conspiracy delegation was joined with 23 overt 
acts in which the defendant Harold Bradshaw was only 
mentioned once, i.e., overt act No. 13— that in January, 
1972, the defendant was processing a certain quantity 
of a controlled substance. The defendant was not men­
tioned in the other counts II-VI, inclusive.

On August 3, 1972, Harold Bradshaw pleaded not guilty, 
and subsequently filed motions for severance and to 
suppress evidence. The motion to suppress evidence was 
granted after hearing on November 27, 1972. The motion 
to sever was denied, and on January 28, 1973, trial



began for Harold Bradshaw and eleven other co-defendants, 
three (Burton, Wiley and Leslee) having pleaded guilty, 
and three (Williams, Roland, and Evans) remaining fugi­
tives at large.

Of 95 jurors from four available pools, not one was 
black. All of the defendants were black (Tr. XVI: 30-34, 
39-40, 53-54, 58, 87-88). The defendants' motions to 
dismiss the jury panel and for mistrial were denied.

During the trial, defendant renewed his motion for 
severance, which was denied.

The two main witnesses for the government were Wiley 
and Burton, who were co-defendants that pleaded guilty to 
a plan to purchase and distribute quantities of heroin 
during a period from September, 1971, to February 10, 1972, 
in the cities of New York, Chicago, Washington D.C., 
Lawrence and Boston, Massachusetts, and the Virgin Islands.

In September 1971, Burton, unemployed, went to 
Bradshaw's apartment seeking employment. Bradshaw referred 
Burton to Hardy, and Hardy and Burton talked alone. A few 
days later Bradshaw took Burton to an apartment in



Long Island where several defendants (Burton, Evans, 
Williams, Bradshaw) were engaged in a cutting and bagging 
session (Tr. VII: 80-92).

At a later time in September, 1971, Bradshaw again 
took Burton to the Hillside Avenue apartment for another 
cutting and bagging session (Tr. VII: 92-93).

The jury could have believed that Wiley was hired by 
Evans in October, 1971, to deliver heroin twice to 
Washington D.C.; to Chicago (Tr. I: 32, 37) and Washington, 
D.C., in November (Tr. I: 41, 43). Wiley made a second 
delivery to Washington (Tr. I: 37-40).

Subsequently Evans told Wiley that Hardy was the leader 
and since the heroin supply was short in New York City, 
Wiley went with Evans, Hardy and Williams to the 
Virgin Islands to pick up heroin and bring it back to 
New York (Tr. I: 54-68). Thereafter, Wiley said other 
defendants aided in refining and bagging the heroin in the 
later part of December (Tr. VII: 99-101). Evans then 
directed Wiley to Lawrence, Massachusetts, to set up 
an operation with the assistance of Burton (Tr. I: 76-85).



In January, 1972, Evans and Maye came to Boston and 
sold a quantity of heroin to two federal agents (Tr. I: 
102-110), and a week later Henry Burton drove Wiley 
to Boston, resulting in another sale to federal agents 
(Tr. I: 115-119). Evans came with Bryant later to 
Lawrence, Massachusetts, with heroin, resulting in another 
sale to federal agents (Tr. I: 131, 165). In the latter 
part of January, 1972, Hardy and Bryant met Wiley at the 
Holiday Inn in Lawrence and subsequently Hardy directed 
Williams in New York to come to Lawrence the next day 
with Burton, Golden, Wright and others (Tr. II: 12-14).
At the Holiday Inn the heroin which Evans and Bryant had 
brought was prepared in a room occupied by Hardy (Tr. II: 14) 
Then Ketchen and Lockett brought heroin and paid Hardy 
at a subsequent time when he (Hardy) gave them some more 
heroin (Tr. II: 21-26).

On February 1, 1972, Wiley, Hardy and Bryant returned 
to New York and purchased more heroin, and returned to 
Boston and thereafter to Lowell where Hardy and Burton 
cut the heroin and Bryant, along with other helpers, taped 
the bags. Federal agents on February 2, 1972, arrested



10

Wiley, Burton and Ketchen when they delivered heroin to 
them in Tewksbury (Tr. II: 41-50).

The defendant Bradshaw was found guilty on Februray 9, 
1973, and sentenced to imprisonment, as to count I, for 
15 years and a special term of 6 years. He seasonably 
appealed to this court.

ARGUMENT.

I. Appellant was Denied his Right, under the 
Federal Jury Statutes and the Fifth and Sixth 
Amendments, to be Indicted and Tried by Juries 
Selected from Lists that Adequately Reflected 
a Fair Cross-Section of the Community.

Prior to the voir dire of prospective jurors, and 
subsequently throughout the trial, the defendant Bradshaw 
joined all other defendants in moving (1) to discharge 
the panel, (2) for a mistrial based upon an unconstitutional 
panel, and (3) to dismiss. All motions were denied. The 
basis of contention for the above-listed three motions 
was that the grand and petit juries had been selected 
by methods that failed to comply with the 1968 Jury Selection 
Act (28 U.S.C. §§ 1861-1869). Thus, he contends here



11

that his right, under both 28 U.S.C. §§ 1861 and 1862, 
and the Fifth and Sixth amendments, to "grand and petit 
juries selected ... from a fair cross section of the 
community in the district or division," was violated.
The defendant is black as are the other defendants; out 
of 95 jurors from 4 pools, not one was black. The 
conclusion that the lists used by the District of 
Massachusetts were legally insufficient is compelled 
not only by the statistical showing made above, but also 
by the fact that the cities and towns from which the 
jurors were selected were ones not likely to contain 
any blacks. It is clear that in the light of the 
historical background and legislative history of the 
1968 Act, Congress intended to impose an affirmative 
obligation on federal courts to achieve as near fully 
representative jury lists as possible by the use of 
whatever sources might be necessary. Whatever the pre­
vailing statutory standards, however, the Supreme Court 
has consistently held that, in federal courts, a jury 
must be as close as possible to being "a 'body truly 
representative of the community.'" Glasser v. United



12

States f 315 U.S. 60, 86 (1942). There, at a time when 
state jury lists were the source for federal juries, the 
court held:

"If that requirement [of representation] is 
observed, the officials charged with choosing 
federal jurors may exercise some discretion....
But they must not allow the desire for competent 
jurors to lead them into selections which do not 
comport with the concept of the jury as a cross- 
section of the community. Tendencies, no 
matter how slight, toward the selection of 
jurors by any method other than a process which 
will insure a trial by a representative group 
are undermining processes weakening the institution 
of jury trial, and should be sturdily resisted.
That the motives influencing such tendencies may 
be of the best must not blind us to the dangers 
of allowing any encroachment whatsoever on 
this essential right. Steps innocently taken 
may, one by one, lead to the irretrievable 
impairment of substantial liberties." 315 U.S., 
at 86 (emphasis added).

See also, Thiel v. Southern Pacific Co., 328 U.S. 217, 220 
(1946); Ballard v. United States, 329 U.S. 187, 192 (1946), 

It must be noted that the standard enunciated in these 
cases was promulgated pursuant to the Supreme Court's 
power to regulate the administration of justice in the 
lower federal courts and to enforce federal statutory com­
mands relating to jury selection. See Ballard v. United



13

States, supra, at 192, and Fay v. New York, 332 U.S. 261,
287 (1947). Thus, whatever may have been the standard 
under the Fourteenth Amendment with regard to state 
juries,* it is clear that as to federal juries there 
was an affirmative obligation imposed to use those 
methods of selection and sources of names that would most 
nearly result in jury rolls reflecting a cross-section 
of the community.

It is in the context of these decisions of the Supreme 
Court that Congress amended the jury selection statutes 
in 1948 and 1957. Two concerns were uppermost: first, 
there was a desire to achieve uniformity in jury selection 
standards throughout the country; second, there was a 
growing awareness that, despite the court's decisions, 
reliance on state lists or standards continued to result 
in blacks being excluded from federal juries. See Rabinowitz 
V . United States, 366 F. 2d 34 (5th Cir. 1966), at 48-49.

Compare Fay v. New York, 332 U.S. 261 (1947), with 
Carter v. Jury Commission, 396 U.S. 320 (1970), and 
Labat v. Bennett, 365 F. 2d 698 (5th Cir. 1966).



14

Despite these statutory changes, both problems per­
sisted and it was the latter, the exclusion of blacks, 
that was involved in Rabinowitz. There, the Fifth 
Circuit, relying on the cross-section decisions of the 
Supreme Court, struck down the key-man method of jury 
selection as it operated in the Middle District of Georgia. 
While not invalidating the key-man system per se, the 
court found that the facts before it showed that the 
system had resulted in a substantial under-representation 
of blacks. It held:

"The Constitution and laws of the United 
States place an affirmative duty on the 
court clerk and the jury commissioner to 
develop and use a system that will probably 
result in a fair cross-section of the 
community being placed on the jury rolls."
366 F. 2d, at 57.

The Rabinowitz decision was at the forefront in the 
deliberations on the Jury Selection and Service Act of 
1968. See, e.g., House Report No. 1076 (90th Cong., 2d 
Sess.) 1968; U.S. Code Cong, and Administrative News, 
pp. 1792, 1794-95 (1968); Hearings on S. 989 (28 U.S.C.
§§ 1861 et seq.). Subcommittee on Improvements in 
Judicial Machinery of the Senate Judiciary Committee,



15

90th Cong., 1st Sess. (1968), pp. 605-606 (Statement 
of Hon. Harrison L. Winter); 114 Cong. Rec. 3990 (90th 
Cong., 2d Sess., February 26, 1968) (Remarks of Cong. 
Celler introducing the bill). Thus, Congress sought to 
solve jury selection problems once and for all by:
(1) setting up a truly uniform method of selection; and
(2) assuring random selection from lists representative 
of the community. It could not be more clear that the 
1968 Act was intended to be a reform that would codify 
and enforce the decisions of the Supreme Court and those 
of lower courts such as that in Rabinowitz. Of first 
importance was to end any further possibility of the 
exclusion, whether deliberate or inadvertent, of blacks 
and other minorities from full participation in federal 
juries.

These goals were to be achieved in two ways. First, 
bases for disqualifying prospective jurors were narrowly 
and specifically defined, thus limiting the opportunity 
for subjective judgment in the selection process. Second, 
all federal courts were to use the same basic source, 
recent voter registration rolls or lists of actual voters.



16

thus eliminating recourse to any version of a key-man 
system, and providing a source that in most instances 
would be representative of the community.

It is clear, however, that Congress did not intend 
that the courts rigidly limit themselves to voter lists. 
Indeed, the statute itself specifies that a jury selection 
plan "shall prescribe some other source or sources of 
names in addition to voter lists where necessary to foster 
the policy and protect the rights secured" by the Act 
(28 U.S.C. § 1863(b)(2)) (emphasis added)).

The policy referred to, of course, is to "insure that 
potential jurors will be drawn from a representative cross- 
section of the community." 114 Cong. Rec. 3990 (remarks of 
Cong. Celler). Congressman Celler, in introducing the bill 
in the House, elaborated:

"The bill uses the term "fair cross section 
of the community" recognizing that there will 
be minor deviations from a fully accurate 
cross section. The voting list need not 
perfectly mirror the percentage structure of 
the community, but any substantial percentage 
deviations must be corrected by the use of 
supplemental sources. The committee would 
leave the definition of "substantial" to 
judicial decision. Ibid, (emphasis added).



17

It is also clear that Congress was fully cognizant of 
the relationship between the Voting Rights Act of 1965 and 
the necessity of supplementing voting lists in some instances. 
Thus, Rep. Kastenmeier stated:

"In the past, in some parts of the country,
Negroes were largely excluded ‘from the 
electoral process. The Voting Rights Act 
of 1965 has altered this situation signif­
icantly. Still, there are some areas where 
the percentage of Negroes registered to vote 
is much lower than that for whites. In such 
areas, the juror-selection plan must prescribe 
sources in addition to voter lists. However, 
we can expect that, in time, with the con­
tinuing implementation of the Voting Rights 
Act, the need to employ supplemental sources 
will end. 114 Cong. Rec. 3998 (90th Cong. 2nd 
Sess.) (emphasis added).

See also House Report No. 1076 (90th Cong., 2nd Sess.), 1968 
U.S. Code Cong. & Adm. News, 1792, 1799-1800.

To summarize, decisions of the Supreme Court have 
consistently held that federal courts are subject to a rigorous 
requirement that juries represent a cross-section of the 
community as closely as possible. Congress, in enacting the 
1968 Jury Selection Act, intended to codify those decisions, 
and was primarily concerned with the continued exclusion of 
blacks from federal jury service. Thus, although the Act 
requires that voting lists are to be the first source of



18

names, it also mandates that other sources be used if voting 
lists are significantly unrepresentative. Finally, Congress 
was mindful of the fact that there had been racial discrim­
ination in voter registration in parts of the country, and 
therefore intended that in such areas voting lists must be 
supplemented until such time as the full effect of the Voting 
Rights Act of 1965 was evident.

This point was specifically dealt with in this court
recently in the case of United States of America Vj Harvey
T. Plotkin, et al., Cr. No. 72-326-W, where Wyzanski,
S.D.J., observed that

" ... it is indisputable that the number 
of blacks who have served in the last year 
since this jury selection system has been 
in effect has been a fraction of the per­
centage of blacks in this community. The 
same is true of the Spanish-Americans. The 
same is true of every minority group, unless 
one wants to include the WASPS, and they may 
find that they were under-represented 

The method of delection has been only 
superficially accurate and fair. People 
have been taken from different streets on 
the theory that all streets are fungible."

To paraphrase the latter point, not all streets are
"streets", and all streets are not fungible.



19

Defendant Bradshaw is and was a resident of Brooklyn,
New York, with a black population of over 90 per cent 
(See Appendix A-map). He had never been in the Commonwealth 
of Massachusetts, was not in this state during the cutting, 
bagging and sales operations, and subsequent to his arrest 
in New York City, was brought here solely for purposes 
of this trial. To the extent that this defendant 
Bradshaw, domiciled in an area over 90 per cent black, is 
brought to be tried in Massachusetts where it is not sta­
tistically possible for one black to serve as a juror, 
might well, in fairness, amount to systematic discrimi­
nation against him and prevent a fair trial.

See, "The Case for Black Juries," 79 Yale L.J. 531 
(1970), and Gewin, The Jury Selection and Service Act of 
1968, 20 Mercer Law Review 349, 356-357 (1969).

Therefore:
(1) It is totally irrelevant in a Jury Act challenge 

whether everything has been done in good faith, or 
whether or not there is intentional discrimination.
Cf. Glasser v. United States, 315 U.S. 60, 86 (1942).



20

(2) The defendant need not show prejudice to himself; 
the only question is whether the Act has been complied 
with. C^. Thiel v. Southern Pacific Co., 328 U.S. 217, 
225 (1946).

(3) Whether or not members of the under-represented 
cognizable group, for whatever reason, fail to appear on 
any list or grouping is immaterial; the right protected 
by the statute and called into question here is the right 
of the defendant to be tried by a fairly constituted 
jury.

A white defendant had a conviction overturned on the 
ground that, since Negroes were systematically excluded 
from the grand jury, such conviction would be invalid 
under the Due Process and Equal Protection clauses of the 
Fourteenth Amendment. Peters v. Kiff, 407 U.S. 493, 33 
L. Ed. 2d 83, 92 S. Ct. 2163 (1972). The court in 
Peters stated at 407 U.S. 501:

"A fair trial in a fair tribunal is a basic 
requirement of due process."

Since the jury failed to meet federal standards, the 
trial judge was in error in denying defendant's motions.



21

II. The Court Below Erred in Allowing an 
"Organizational Chart" to Remain Before 
the Jury.

The trial of the defendant was prejudiced by the 
court’s allowing a large (3 feet by 4 feet) "organizational 
chart," in which there were three blocks underneath the 
word "Lieutenants," inside one of which was the name 
"Bradshaw," to remain before the jury on an easel through­
out the trial. It is significant that the other two 
"lieutenants," "Evans" and "Williams" were fugitives 
at the time of trial. The subliminal effects of such 
a chart upon the minds of the jurors is evident. Also 
implicit in this chart is the fact that since Bradshaw 
was the sole "lieutenant" present for trial, it could 
be implanted in the jurors' minds that Bradshaw and 
Bradshaw alone could be the conduit. Although the trial 
judge attempted to limit the scope of exhibit 1, appendix 
"A," by explaining its limited function as a visual aid 
(Tr. I: 5), the characterization of this defendant as a 
lieutenant, coupled with the long time the chart was exposed



22

to the jury, could unwittingly raise a mere visual aid 
to the status of hard evidence. The chart, as any photo­
graph presented during the course of a trial, represented a 
substantial change of condition. See Scott, "Photographic 
Evidence," vol. 2, § 1025, where it is observed that

"[i]t would be desirable to have photographs 
made with all the conditions the same as at 
the time in question."

"The principles to be considered are akin to 
those governing the use of photographs and 
models. The diagrammatic exhibits concerned 
are not evidence in themselves but mere depic­
tions or illustrations by means of which wit­
nesses may more clearly describe factual 
situations and the trier of facts may more 
clearly understand their descriptions. This 
type of evidence may be rightly called 
testimonial evidence. It derives its 
efficacy from the knowledge and veracity of 
the witness of whose testimony it is a part.
It is but the form in which he expresses 
himself." 9 A.L.R. 2d 1046. (Emphasis 
supplied.)

It is difficult to see how this chart could have 
assisted Wiley, who had a seventh grade Georgia schooling 
(Tr. Ill: 185-186, 194; II: 170), who did not know how 
to spell "gate" (Tr. Ill: 187), and who could not write 
anything besides his name (Tr. Ill: 205). The use of a



23

map/ plot or other drawing introducing testimony is 
subject to the discretionary supervision of the trial 
judge as to the manner and circumstances of its use; and 
as would be conducive to a fair trial. See also. Card, 
Jones on Evidence, vol. 3, § 15:10.

Since this chart, then, represented a change of 
condition and since one of the main users of the chart 
could be deemed barely literate, the trial judge abused 
his discretion in allowing this chart to remain, all to 
the prejudice of defendant Bradshaw.

"The admission of charts illustrating ... the effect 
of various allocations of partnership profits was quite 
within the judge's discretion." Weiss v. Johnson, 206 
F. 2d 350, 354 (2d Cir. 1953), cert, den., 346 U.S. 924, 
98 L. Ed. 417, 74 S. Ct. 310. 4 Wigmore on Evidence,
3d Ed., § 1230.

As to a similar situation pertaining to admissibility 
of charts prepared by revenue agents in an income tax 
evasion prosecution, the court in Lloyd v. United States, 
226 F. 2d 9 (5th Cir. 1955), cautioned, at page 17:

"The use of this type evidence, however, has 
inherent dangers to an accused, for a jury is



24

often unfairly and unduly impressed by 
the apparent authenticity of a government 
witness' chart computations, as such, 
rather than by the truth and accuracy 
of the underlying facts and figures 
supporting them. A trial court is charged 
with grave responsibilities in such 
instance to insure that an accused is 
not unjustly convicted in a 'trial by 
charts,' however impressive the array 
produced."

III. It was Error to Deny the Defendant's 
Motion to Suppress Evidence

The defendant Bradshaw adopts the argioments of the 
other defendants on the question relating to the denial 
of defendants' motions to suppress evidence.

IV. The Court Below Erred in Denying Defendant 
Bradshaw's Several Motions for Severance.

It is within the discretion of the trial judge to de­
clare a mistrial or grant a new trial. United States v. 
Leach, 427 F. 2d 1107, 1111 (1st Cir. 1970), cert. den.
400 U.S. 829. In this case, as to Bradshaw, there was 
an abuse of discretion requiring a reversal.



25

Where a single overall conspiracy is charged and where 
the evidence establishes two or more separate conspira­
cies, a defendant may be sufficiently prejudiced so as 
to require a new trial. United States v. Varelli,
407 F. 2d 735, 741-748 (7th Cir. 1969). Rocha v.
United States, 288 F. 2d 545, 550-553 (9th Cir. 1961), 
cert. den. 366 U.S. 948.

CONCLUSION.

For the reasons stated above, the defendant respect­
fully requests this court to reverse the decision of 
the court below.

Respectfully submitted.

ENOCH O'D. WOODHOUSE, 
Attorney for the Defendant,



26



27



THE NEW YORK TIMES, SUNDAY, APRIL 7, 19H

W herever Politicians Gather, the Boundaries Are Sure to Shift

Th« New Yoric Timw; Culver PIctvrt*
A map of the original gerrymander, at right, and of the 12th Congressional District in Brooklyn represented by Shirley Chisholm. 
The district, with a concentrated black population, is surrounded by predominantly white districts with pockets of minority groups.

to
00