Petition — Dove v. United States
Supreme Court brief1976
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
No. 75-54 9
OSCAR ROOSEVELT DOVE
Petitioner
VS.
UNITED STATES OF AMERICA
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT.
JOHN H. HARMON
P.O. Box 636
New Bern, North Carolina 28560
Tel: 919-633-3114
NORRIS C. REED, JR.
415 Broad Street
New Bern, North Carolina 28560
Tel: 919-637-2789
Attorneys for Petitioner
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
No. 75-
OSCAR ROOSEVELT DOVE
Petitioner
VS.
UNITED STATES OF AMERICA
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT.
JOHN H. HARMON
P.O. Box 636
New Bern, North Carolina 28560
Tel: 919-633-3114
NORRIS C. REED, JR.
415 Broad Street
New Bern, North Carolina 28560
Tel: 919-637-2789
Attorneys for Petitioner
eT Te
| INDEX
Page
| CRS ON BEE 6 das Siew ok ide Se vec ciecees I
DO hE A ree SIGs ee ail
| CPUGIINED FUUIING 6 ccs n sc cedacnanevocccncedessctes 2
| Constitutional and Statutory Provisions Invoked ...... 3
| eS OE GE. obk be dda det ed need edie 400008 3
| How the Federal Questions were raised and decided
| PO Oe ee ET ee eT 17
| Reasons for Granting the Writ ............0eeeeeees 18
1. The Court should grant Certiorari to consider
whether inconsistent verdicts are permissible in nonjury
COTES Gb Cle TIEN COTTE. 6c oc cece ccedewescceceece 18
A. The Court has never before decided the issue of
inconsistent verdicts in federal nonjury trial.
) B. The Court’s holding in Dunn v. U. S. 284 U. S.
390, to the effect that inconsistent verdicts are
| permissible in jury trials has not been examined
in the context of a federal nonjury trial.
| Il. The Court should grant certiorari to consider
| whether the principle of collateral estopel stated in Ashe v.
| Swenson, 397 U. S. 436, was violated by the trial court in
: its use of certain evidence relating to events occurring on
| December 3, 1972 in its consideration of Petitioner’s
innocence or guilt of charges relating to February 27,
SOF as ced cesedeuhens snekeseesueneeeetenssesseues 27
A. The refusal of the Court below to apply the
principal of collateral estoppel to the petitioner’s
| case was a refusal to follow this Court’s holding
in Ashe v. Swenson, 397 U. S. 436.
B. Use of the evidence which by inference might
have indicated guilty knowledge on the part of
petitioner, in light of the not guilty verdict which
in and of itself indicated no knowledge, to show
guilty knowledge on February 27, 1973, violated
the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution.
Page
lll. The Court should grant Certiorari to consider
whether in the absence of a special request findings of fact
are essential to proper appellate review where the record
suggests inconsistent verdicts or suggests several legal
principles which the trial court might have invoked. ... 29
1V. The Court should Grant Certiorari to consider
whether the evidence of petitioner's guilt for offenses
allegedly committed on February 27, 1973, was so lacking
in substance that the convictions which resulted violated
his due process rights under the Fifth Amendment to the
United States Constitution .........-0 cece cece eeees 31
V. The Court should grant Certiorari to consider
whether petitioner’s rights under the Fourth Amendment
to the United States Constitution to be free from an
unlawful arrest and unlawful seizure of items from his
person, property and premises was violatec: by his arrest
and the subseauent seizure of items from his person and
PFOPE!ty.... ec ceccccccccceccccessccccccvcseseenes 34
Comebesie ..cccccccccccscccccceccscececscoees 44
APPENdix ....... ccc cece ec eeeeeeceeceeeerenes 46
TABLE OF CASES
UNITED STATES SUPREME COURT
1. Ashe v. Swenson 397 U.S. 436 «2... cece eee eens 27
2. Chimel v. California 345 U.S. 752 ....0eeeeeeeee 43
NDMP w&
16.
17.
Dunn v. United States 284 U.S. 390.......... 19
Di Re v. United States 322 U.S. 581 ......... 35
Draper v. United States 358 U.S. 307 ........ 34
Thompson v. Louisville 362 U.S.199 ........ 34
re 34
UNITED STATES COURT OF APPEALS
— v. United States 462 F. 2d 982 (8th Cir.
ree aera Sen ree 35
oe v. United States 447 F. 2d 476 (9th Cir.
a
Levine aeeedbncdidecetbendéeace< 30
Kansco v. United States 252 F. 2d 220 (2d Cir.
a i 39
— v. United States 459 F. 2d 797 (3rd Cir.
DUS eebUENebédbndoeeubeede ded ccuec 30
- Maybury v. United States 274 F. 2d 899 (2d Cir.
RENE Ue Obes nek oceendectéeedécsceccus 24
ed v. United States 146 F. 2d 932 (9th Cir.
ee ee 26
Moore v. United States 456 F. 2d 223 (Sth Cir.
MAR b hide dd doen cde c cued seas 38
—- v. United States 403 F. 2d 694 (9th Cir.
NICU USGECUE Ch wdenccestéceccesce 32
Phillips v. United States 502 F. 2d 227 vacated
ad i auc edn ancecennes 18
Steckler v. United States 7 F.2d 59 .......... 24
scammer aaa carat eam tia ties cee eimai ii
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
; No. 75-
OSCAR ROOSEVELT DOVE
Petitioner
-VS-
UNITED STATES OF AMERICA
| Respondent
Petition for Writ of Certiorari to the United States
Court of Appeals for the Fourth Circuit.
Petitioner prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for the
Fourth Circuit.
CITATION TO OPINION BELOW
The opinion of the United States Court of Appeals is
unreported and is set out in Appendix A, hereto pp. 1, 2, 3,
infra.
JURISDICTION
The Judgment of the United States Court of Appeals
for the Fourth Circuit was entered September 23, 1974 and
the Order denying the petition for rehearing was entered
August 13, 1975, both of which are set out in Appendix A
hereto. Jurisdiction of this Court is invoked under 28
U.S.C. §1257 (3), petitioner having asserted below and
asserting here deprivation of rights secured by the
Constitution of the United States.
; |
2
QUESTIONS PRESENTED
|. Whether the rendering of inconsistent verdicts in
nonjury trials in the Federal Court violates the due process
clause of the Fifth Amendment to the Constitution of the
United States?
2. Whether in a multi-count indictment, nonjury trial
in federal court in which the petitioner was charged with
drug possession violations on December 3, 1972 and
February 27, 1973 and in which the government was
preceding on the theory of constructive possession and on
the theory of petitioner’s guilt as an aider and abettor in
that he knowing of the principal’s drug involvement on
each date aided and assisted him in that involvement and
wherein petitioner was found to have had no knowledge of
the principal’s drug involvement on December 3, 1972 by a
not guilty verdict on those counts, whether the petitioner
could nevertheless be found guilty of the possession
charges relating to February 27, 1973, if that guilty verdict
required a finding that he had such knowledge of the
principal's drug involvement on December 3, 1972?
3. Whether, in the context of the instant case, the
failure of the trial court to make special findings violated
petitioner rights under the Due Process Clause of the Fifth
Amendment to the United States Constitution.
4. Whether the evidence supporting petitioner's convic-
tions were so lacking in substance that the convictions
violated his due process rights under the United States
Constitution.
5. Whether Petitioner rights under the Fourth Amend-
ment to the United States Constitution were violated by his
arrest and the subsequent seizure of items from his person
and the vehicle that he was operating?
a
a a
i i iia
3
CONSTITUTION AND STATUTORY PROVISIONS
INVOKED
1. This case involves the Due Process and Double
Jeopardy Clause of the Fifth Amendment and the Fourth
Amendment to the United States Constitution.
2. This case also involves Rule 23 (c) of the Federal
Rules of Criminal Procedure.
STATEMENT OF CASE
This is a petition for a Writ of Certiorari to review the
Judgment of the United States Court of Appeals for the
Fourth Circuit, entered on September 23, 1974, rehearing
denied August 13, 1975, affirming petition’s conviction and
15 years prison sentence. Petitioner was convicted of the
offense of unlawful possession of narcotic drugs and
unlawful possession of firearm while in the commission of
a felony. Petitioner was charged in a indictment with
possession of drugs on two occassions, to wit, December 3,
i972 and February 27, 1973. A co-defendant Samuel
Stallings was charged in the same indictment with
possession of the same drugs on the same dates and was in
addition charged in the same indictment with possession of
drugs on another date, to wit January 12, 1973. A third co-
defendant Eli Edmondson was charged with possession of
drugs on December 3, 1972 and January 12, 1973, in the
same indictment the drugs being the same as those charged
to the petitioner and Stallings on December 3, 1972 and to
Stallings on January 12, 1973. At the beginning of the trial
Stallings pleaded guilty to violations charged on January
12, 1973 and February 27, 1973 and Edmondson pleaded
guilty to the violations charged on January 12, 1973.
Petitioner pleaded not guilty and was tried by the Court,
sitting without a jury. The evidence adduced at the trial
was as follows:
4
EVIDENCE IN THE CASE
DECEMBER 3, 1972
The testimony of narcotic agent Price was to the effect
that a few days prior to December 3, 1972, he had entered
into conversation with Eli Edmondson concerning
purchasing some heroin from a man named Stallings in
New Bern, N. C. That on or about December 2, 1972, the
plans were finalized for a trip to New Bern to purchase two
ounces. That Oscar Dove was never mentioned in these
earlier conversations. That Price, Edmondson and an
informant named Walker left Washington, D. C. to travel
to New Bern to make the buy. They stopped in Petersburg
Va., where Edmondson called New Bern and told Stallings
they were on the way. They arrived in New Bern and drove
to Rice’s Grill at about 12:00 or 12:30 a.m. on December 3
1972. They then called Stallings and told him where they
were.
A short time later, Stallings drove up in a Pontiac
station wagon owned and being operated by Oscar Dove
Price, Edmondson and Walker got out of their car and got
in the back of Dove's car where Price and Stallings had a
conversation about the price of heroin. Dove then wanted
to get the heroin and stated to Stallings; “We will take
them around and then we will get the heroin”. Price then
said he was hungry and Dove told Stallings to get the stuff
and he would go inside with them to get something to eat
After they had gotten something to eat, Dove then told
Price he would drive their car around to meet Stallings. He
then drove to a service station owned by Dove. Dove
unlocked the door and Price and Stallings went inside to
the back of the store where Stallings gave Price the heroin
in return for $1,500.00. Price also testified that while at the
Grill, Dove gave him directions how to leave the City
without running into the Police and that after h
| e had
his deal Dove led them out of the City. sans
—— ee
5
The informant Walker testified that while Price and
Stallings were in the back of the station completing the
heroin deal Dove had a conversation with him outside the
station in which Dove told him he could get Walker some
cocaine if Walker could come up with the necessary
financing.
For the defendant Dove, Eli Edmondson testified that
he came to New Bern with Price and Walker on December
3, 1972, mainly to show them the way and to introduce
them to Stallings. He said that Oscar Dove’s name was
never mentioned in any of the pre December 3, 1972,
conversations he had with Price. He said it had been at
least 10 years since he had last seen Dove. He said that he
called Stallings from Petersburg, and that Dove and
Stallings did drive up to Rice’s Grill that night, but that
Price and Stallings went off to themselves to have their
conversation. That nothing was said about heroin in his
presence or in Dove's presence. That they never got in the
back of Dove’s vehicle. He said that they did go to this
service station and that Price and Stallings did go inside
and stay a few minutes. That he, Dove and Walker
remained outside. That he never heard Dove say anything
about any cocaine.
Sam Stallings testified that he met with Price at Rice’s
Grill that night. That when he first received the call from
Edmondson that night, he was at Dove’s house. That he
lived in one of Dove’s apartments just to the rear of Dove's
house and that he had no telephone. That he always gave
people Dove’s house or business number when they wanted
to be able to contact him. That when he received the
second call from Edmondson from Rice’s Grill he was
again at Dove’s house where he had been waiting for the
call. That Dove went with him for two reasons. One was
that Dove wanted to see Eli because Eli owed him some
money and second Dove wanted to pick up another of his
cars which he had left at the service station for repairs.
6
After seeing Eli, Dove was going to let Stallings drive the
Pontiac back home and he, Dove was going to drive the
repaired car back home. Stallings testified that he never
told Dove why he was meeting Eli and the others at the
grill that in fact, he did not want Dove to know what was
going on. That all the conversations and deals with Price
about the heroin were private and never in Dove's or
anyone else’s presence.
Dove, himself testified essentially to the same thing.
That he never knew Stallings went to Rice’s Grill to sell
heroin or that Stallings had any heroin. That there was
never any conversation about heroin or any other drug in
his presence; that he never said Sam, let’s go get the heroin
and that he never had any conversation about cocaine with
the informant Walker.
All of the witnesses for the government admitted that
when they came to New Bern, on December 3, they did not
come to meet with Dove. They further admitted that they
made no purchases from Dove on that date, had no
discussions with him about the price of heroin that they
received no delivery of the heroin from him and never saw
any in his possession. (8A).
JANUARY 12, 1973
Price testified that as a result of a telephone conversa-
tion he had with Stallings, he came to New Bern on
January 12, 1973, where at Robbie’s Rib House he had
another transaction with Stallings involving the sale of
heroin. That on this occasion he had reached Stallings
through one of Dove’s numbers, Stallings not having a
telephone as pointed out earlier. Price testified that Dove
was not even in New Bern on this date.
FEBRUARY 27, 1973
Price testified that on February 26, 1973, he had a
telephone conversation with Stallings and had arranged for
7
a purchase of 8 ounces of heroin in New Bern the next day.
That Stallings had given him 2 telephone numbers he could
call to reach him, the same numbers he had called in the
past 638-1156 and 637-3376; These were Dove’s numbers,
his Mortuary and his residence. Price and Quander and
other agents came to New Bern the next day and got a
room at the Holiday Inn for headquarters. Price then
called 638-1156 and Dove answered the phone. He asked
for Stallings, at which time Dove told him that Stallings
was not there but that he was probably at Robbie's Rib
House, Dove told him to stay where he was and he Dove
would come down and lead him to Robbie's or try to find
Stallings for him, (12A, et al). A short while later Dove
then drove down to the Holiday Inn and they, Price and
Quander followed behind in their car. Price testified that
when he told Dove he was suspicious of the police Dove
told them that he would lead them back to his Mortuary,
which is outside the City limits. After they got to the
Mortuary Dove then asked them if either of them wanted
to go back into town with him to try to find Stallings. Price
and Quander both stated that they wanted to stay together
and that he should go alone to find Stallings (12A). Price
further testified that on this occasion, he had no
conversation with Dove about narcotics (22A), Dove then
left.
About 30 minutes later, Dove drove up followed by
Stallings in another vehicle. They both got out and Price
and Stallings started talking about the heroin. Price said
Dove was 8 or 10 feet away and was not involved in the
conversation. Price had testified earlier that at the Holiday
Inn, there had been a meeting of the agents at which time a
plan had evolved. The plan was that Price would meet with
Stallings; that the oiher agents would be in a position to
observe the meeting. If Stallings had the heroin, Price
would go to the trunk of his car and raise the lid which
would be the signal that Stallings had the heroin, at which
——
Lo
See sss
8
time, the agents would move in and arrest Stallings, Price
testified that after talking with Stallings, he went to the
rear of his car to raise the trunk lid, at which time Stallings
said he could get even more heroin. Therefore Price never
raised the lid. Stallings then went over and said something
to Dove and they both got in a blue van and left the area
with Dove driving. About 30 minutes later Price saw the
blue van coming down a road at the rear of the Mortuary.
That the van made a left turn and went in a direction away
from the Mortuary. That Price then saw the agents give
pursuit of the van in a government vehicle. The agents were
McCracken, Sheehan and King. Dove denied that he
overheard any of the conversation between Price and
Stallings. Quander the agent with Price testified that Dove
had come to the Holiday Inn and led them back to the
Mortuary. That Dove had told them Stallings was
probably at Robbie’s. That Dove was just trying to help
them locate Stallings. (24A et al) Quander further testified
that Stallings and Price carried on a two man conversation
to the rear of the car out of his presence and out of Dove's
presence (29A).
The substance of testimony of agents McCracken,
Sheehan and King was that they had come to New Bern on
February 27, 1973 on the sale of heroin from Stallings to
Price. That they had had a meeting at the Holiday Inn and
had evolved the plan above mentioned for the apprehen-
sion of Stallings. That they had observed the Price
Stallings conversation at the Mortuary but they said that it
was a 3 man conversation Price, Stallings and Dove, this is
in direct contradiction of Price and Quander and Dove and
Stallings who all said it was a two man conversation.
These three agents testified they had taken up a
position of observation behind the Mortuary. That after
the conversation Dove and Stallings got in the blue van
again with Dove and Stallings with Dove driving. That
9
their car was unmarked and they themselves, had nothing
displayed which identified them as narcotics agents. That
although they knew of Price’s two previous purchases on
December 3, and January 12, that they did not at the time,
know of the substance of the conversation, Price had just
previously had with Stallings at the Mortuary. That as the
van passed them Stallings looked around in their direction,
that the van then speeded up came to the end of the dirt
road and made a left turn down a paved road in a direction
away from the Mortuary. That they immediately pursued
the vehicle (30A). That they got behind the vehicle flashed
their lights and placed their badge outside the window.
That the van immediately stopped and pulled off on the
shoulder off the road. That Sheehan went to the driver’s
side and King went to the passenger’s side. That both
persons were ordered out of the van Dove got out
immediately. It took a minute to get Stallings out. That
Dove was searched and he had two guns. At this point
counsel for defendant objected to any testimony about
anything found on the person of Dove or in the van. Judge
Larkins stated that since it was a non-jury trial he would
reserve his ruling and hear all the evidence (35A). King
testified he had some difficulty getting Stallings out of the
van. On direct examination, McCracken had stated that
the agents had come to North Carolina to purchase heroin
from Stallings and Dove; However, on cross-examination
he reluctantly admitted they had not come to see Dove
(36A et al).
McCracken later testified on cross-examination that he
pursued and arrested Dove and Stallings because he
believed them to be in possession of narcotics at the time of
the arrest (44A et al). McCracken admitted that according
to the agreed upon sign he was to arrest Stallings when
Price gave the signal that Stallings had the heroin. He
admitted the sign was never given (45A). He further
a ee ene
10
admitted that if Price didn’t give the signal, that would
mean Stallings didn’t have the drug (46A).
Sheehan testified first that once the van passed their
observation post, it speeded up and went down a road ina
direction away from the Mortuary. He was attempting to
show flight on the part of Dove. However, he was forced to
admit that the top speed they had to reach to catch the van
was 55 mph to 60 mph and that they caught up with the
van in a very short distance (47A et al). He further testified
that the van stopped immediately upon their flashing the
lights on the government vehicle (51 A). See also Appendix
pages 47A, 48A, 49A, and SOA on the question of the
flight.
Agent King testified that he went to the passenger side
and arrested Stallings. He stated that Stallings did not get
out immediately (53A). He also stated:
“After placing Stallings under arrest, I placed
handcuffs on him I immediately entered the van
to make sure there were no other individuals in
there that could cause harm to any of the agents |
observed a tin foil”.
OBJECTION: Overruled
JUDGE LARKINS: Was there anyone else in
the van?
THE WITNESS: No sir, there was not.
KING CONTINUED:
“At this point, I observed a tin foil packet directly
behind the passenger seat”.
This was later analyzed to be heroin which was the
subject of County (5) of the indictment. King admitted that
there was a prearranged signal to be made when Price
wanted them to come in and arrest Stallings and further
admitted that the signal was never given (56A).
For the defendant with respect to February 27, 1973,
Stallings testified that he had received a call from Price on
February 26 and had arranged a sale for February 27, in
New Bern that he had received the call at 637-3376 one of
the two numbers he had given Price on December 3, 1972.
When Price got to New Bern on the 27th he was supposed
to call Stallings and tell him where he was. That on the
morning of the 27th he had advised Oscar Dove that he
would be receiving a call and told him to let him know
when the call came. Later that day, Dove got up with him
on Bern Street in New Bern and told him that some people
wanted to see him over at the funeral home. He then
followed Dove back to the funeral home. I then got out
and Price got out and we carried on a conversation about
the heroin. Quander remained in the car and Dove went off
someplace. It was a private conversation with Price, he
went back over where Dove was and told him he wanted
him to take him to New Bern. Dove then said he had to
take some furniture off the van first. That he and Dove
then went to Dove’s house in the blue van, that they went
to feed some dogs and they then started to deliver the
furniture. That they took the route down past the rear of
the Mortuary because it was the most direct route. That he
saw a man down behind the Mortuary near a car but that
he did not know that he was an agent or officer. That when
Dove saw the flashing lights behind him he immediately
pulled over. That he had never told Dove of the substance
of the conversation he had had with Price, either on this
occasion or the earlier occasions. That he never told Dove
that he had any narcotic drugs in his possession on
February 27, 1973 (90A). He further testified that when
they were stopped, they were in front of the place where
they were going to deliver the funiture (93A). He further
testified as follows:
12
“While going down by the funeral home, | never
mentioned to Dove that I had some narcotic
drugs on me. I did in fact have some heroin in my
pocket. I had had it in there about two days. | had
it in my pocket while talking to Price at the
Mortuary. I did not tell him I had it.
When we were going down beside the funeral
home. I saw < white man stooping down by a car.
I mentioned it to Oscar, we then made our left
turn and went to down where we were going to
deliver the furniture. Just as we got ready to stop.
1 recognized the car behind me. It was still
blinking the lights and so I still did not know who
it was or nothing. So when they stopped and
jumped out I seed the fellow with the gun in his
hand Mr. King. So when I heard him say
narcotics agent, get out, and | thought about this
stuff, so that is why | was feeling in my pockets
trying to find out where it was. But it was in my
shirt pocket. And I didn’t know where to throw it.
So | put it in the back of the van. I was searching
in my pockets, like this trying to see where it was
at. So I pulled it out and throwed it over my right
shoulder. I did not see where it landed but I know
it was on the passenger side. Prior to this time I
had never said anything to Oscar Dove about it. |
told the agents when they got it, I said that is
mine where you got there. I didn’t want Dove to
know anything I know he wouldn’t have been
with me if he had knowed | had it. When I went
down town. I told them again it was mine (95A et
al).”
At page 838 and 839 Tjranscript (103, 104A) the
following appears (Testimony of Stallings).
Q. The heroin that the agent found in the 1972
Econoline on February 27, 1973, was that the same heroin
you had in your pocket?
13
A. Yes.
Q. Was that the same heroin that you had taken out of
your pocket and thrown over your shoulder?
A. That is right.
Q. Did Oscar Dove ever have. in his possession that
particular heroin?
A. No.
Q. Was it his heroin?
A. No.
Q. Did you ever give Oscar Dove any of the money you
received?
A. No.
Q. On December 3rd?
A. No.
Q. Was there ever any arrangement between the two of
you where he was to receive some of the money?
A. No.
In substance Oscar Dove testified that he was 48 years
old, married with three children, no criminal record and
the owner of Oscar’s Mortuary. That he had known
Samuel Stallings for 25 years and during that time, they
had become very good friends. That Stallings lived in one
of his apartments behind his house and had the unlimited
use of his telephones and automobiles, that he owned the
Shell Service Station, where the December 3rd transaction
had taken place. That on December 3rd he went to Rice’s
Grill with Stallings because he wanted to see Edmondson
who owed him some money. That he also wanted to pick
up a car he had left at the service station for repairs. That
at Rice’s Grill, Price and Stallings carried on a private
conversation at the rear of the Grill outside while he
carried on a general conversation with Walker and
14
Edmondson near the front of the Grill. That the three of
them went inside to get something to eat. That Stallings
came in later and got his key and went off in his car. That
the rest of them later went to the service station. That Price
and Stallings went to the rear of the station. That he
checked the stall and saw that his car was not ready and
then went outside and carried on a general conversation
with Walker and Edmundson. That there was never any
conversation about heroin or any other narcotic drug in his
presence at either Rice’s Grill or the service station. He
denied making any of the statements attributed to him by
Price and Walker. That he never had any narcotic drugs in
his possession on December 3rd, never saw any, never
discussed any price for any. He testified on February 27,
1973, that he had received the call that day and as a result
went to the Holiday Inn to try to help the people find
Stallings. That when he got back to the Mortuary, he asked
them if they wanted to go with him to Robbie’s Rib House,
where Stallings would probably be. That when they
declined, he went by himself and found Stallings on Bern
Street. That he and Stallings then came back in separate
vehicles. That Stallings then carried on a conversation with
one of the persons after which Stallings rode with him to
his house where he picked up two guns then took his wife’s
car to the service station and left it and then was driven
back by a Reverend. That Stallings had gone to his
apartment while he was going to take his wife’s car. That
after returning he and Stallings got in the van and went and
fed the dogs, after which they started to the house where
they were going to take some furniture off the van. The
road down behind the funeral home was the most direct
route to the house. That as they passed down behind the
Mortuary Stallings mentioned a white man near some
bushes, but they had both dismissed that as not being
important. That as they reached the house were they were
15
going to deliver the furniture, he saw flashing lights behind
him and the men jumped out with guns. That when one of
the men came to his side of the truck and ordered him out
he got out, immediately. That it was when one of the men
ordered him to give it up that he advised him that all he
had was two guns on him. That they then had him to get on
his knees and one of them told him if he moved he would
blow his G.D. head off. That he got so scared, he urinated
on himself. That he never knew Stallings had any narcotics
on him on this ocassion never knew any narcotics where in
the van. That he did not possess any heroin on that
occassion. That he never overheard any of the conversation
between Price and Stallings at the Mortuary. That
Stallings never told him he had heroin on him. He stated
that he would not have been driving the van if he had
known the heroin was on the van (106A).
Before being cross examined, Dove presented approxi-
mately 30 character witnesses all of whom were identified
five of whom testified; Dr. S. F. C. Barnwell, Reverend
Charles Ewing, Senator D. Livingston Siallings, Mr. W. C.
Chadwick and Mr. Rip Summerell.
Dove denied that he ever told Price that he would lead
him back to his Mortuary on February 27, 1973, so as to
get outside the City Limits.
Price was recalled in rebuttal and with respect to
December 3rd, stated;
“And Mr. Dove stated to Mr. Stallings and the
rest of us in the car, he said, let’s go get the stuff at
which time, I stated that I was hungry and |
wanted some coffee...”
“And then Mr. Dove stated to Mr. Stallings, why
don’t you go get the stuff and | will stay with
Price and the others until they finish eating.”
16
Albert Logan was called as a rebuttal witness and
mainly testified that he was inside Rice’s Grill on
December 3rd and that he observed Dove and Stallings
drive up and saw Walker, Price and Edmondson get in the
rear of Dove’s station wagon and that he later observed all
but Stallings come in the Grill. The substance of the
Testimony of all the government witnesses is to the effect
that none of them ever discussed with Dove purchasing any
drugs from him, never saw any in his possession, never
came to New Bern to see him about drugs, never had any
telephone conversations with him about drugs. See
Transcript pages 197, 198, 199, 200 (8A et al).
The defendant Dove made a number of Motions and
objections at the trial which serve as the basis for this
appeal and which are enumerated as follows:
We objected at every point to the introduction into
evidence of all items seized from the person of Oscar Dove
and the van that he was operating. We objected when the
government first sought to introduce the pistols and the
heroin and we also filed a written Motion to suppress at the
close of all the evidence as part of our Motion for judgment
of acquittal as to each count. We had made a Motion for
Judgment of acquittal at the close of government’s case.
There was never a voir dire as such conducted on our
Motion to Suppress. Judge Larkins held that since it was a
non-jury trial he would hear all the evidence on direct and
cross examination and then rule. When he finally overruled
our written Motion to Suppress, he never made any
findings of facts or conclusions of law. For that reason
counsel does not know the basis of the ruling or how the
question of the disputed facts, such as whether or not Dove
had sought to flee from the agents was revolved. The
questions of whether or not there was flight is very crucial.
The court said;
.-
Judge John D. Larkins, Jr.
“The Court having heard oral argument in support of
the: written motion to suppress and in support of the
judgment of acquittal, and having heard oral
argument of the U. S. Attorney in opposition to said
Motion. The Motion to Suppress is denied and
overruled and the motion for Judgment of acquittal is
overruled and denied. (140A).”
Judge Larkins made a similar statement in denying the
Motion for Judgment of Acquittal made at close of
government’s evidence.
On the question of guilt or innocence, the Judge had
this to say.
JUDGE JOHN D. LARKINS, JR.
“This court sitting without the intervention of a
jury. The jury having been waived and having
heard all of the evidence in the case, and oral
argument of counsel both for the government and
for the defendant the evidence in this case
- compells this court sitting without the interven-
tion of a jury to find the defendant, Oscar Dove
not guilty as to the offenses charged in counts one
and two.
However, this court sitting without a jury finds
from all the evidence in this case and beyond a
reasonable doubt that the defendant Oscar Dove
is guilty of the offenses charged in Count five and
six (141 A).”
HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
1. Petitioner in his brief filed with the Court of Appeals
raised the questions of the inconsistency of the verdicts the
18
sufficiency of the evidence the unlawful arrest and search,
and the failure to make special findings and argued that the
inconsistent verdicts were invalid, the evidence was
insufficient the arrest and search was unlawful and that the
failure to make special findings constituted error requiring
a new trial. The Court of Appeals in a per curiam opinion
affirmed the convictions without discussing the issues
raised.
2. Petition raised the issue of collateral estoppel in his
petition for a rehearing, to which he attached a legal
memorandum bringing to the Court of Appeals attention
its decision in U. S. v. Phillips 502 F. 2d 227 in which the
Court of Appeals held that the principle of collateral
estoppel stated in Ashe v. Swenson was applicable to the
Phillips case. That the Court of Appeals prior to ruling on
petitioner’s petition for a rehearing decided to consider the
case of U. S. v. Phillips en banc and deferred a decision on
Petitioner’s case pending the en banc decision on U. S. v.
Phillips. That en banc the Fourth Circuit by a 4-3 vote
decided that collateral estoppel did not apply in the
Phillips case although Phillips was reversed on other
grounds and a few weeks later denied petitioner’s petition
for a rehearing without discussion the issues raised in the
petition. By inference it can be said that Fourth Circuit
held that the principle of collateral estoppel did not apply
in the petitioner's case.
REASONS FOR GRANTING THE WRIT
1. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER INCONSISTENT VER-
DICTS IN NONJURY TRIALS IN THE FEDERAL
COURTS VIOLATES THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
19
Diligent research by counsel fails to disclose any
instance in which this court has before considered and
ruled upon this issue. This Court did rule in Dunn vs. U. S.
284 U. S. 390 that inconsistent verdicts are permissible in
jury trials.
Before discussing further this issue petitioner would
like to briefly comment on the question of whether the
verdicts are in fact inconsistent. Petitioner would argue
that they are inconsistent. First of all, although the
evidence as to each date was different, the line-up of
witnesses was essentially the same. For the government in
each instance you had John Price, the agent and for the
petitioner in each instance you had the petitioner and co-
defendant testifying. For the government on December 3,
1972 there was the addition of the informant testifying and
on February 27, 1973, there was the addition of three
‘government agents who made the arrest, testifying.
Essentially the government case was John Price, and the
petitioner’s defense was petitioner and Stallings. In
addition to his other testimony, Price testified concerning
statements allegedly made by petitioner in the presence of
Price, Stallings, Edmondson and the informant, which
testimony if believed would indicate not only that
petitioner knew that Stallings was engaged in a criminal
enterprise concerning drugs, but that the petitioner himself
was engaged in a joint venture with Stallings to sell the
drugs. Price’s testimony was:
soned Dove then wanted to go get the heroin and
stated to Stallings “we will take them around and
then we will get the heroin.” (Pet Brief-pp 4, 5).
In addition to this testimony the informant testified
that while Price and Stallings were inside Petitioner’s
service station concluding their drug transaction peti-
tioner was outside talking to him and trying to arrange the
20
sale of some cocaine in the future. (Pet. Brief P. 5). Of
course Petitioner denied making either of these statements.
These statements were offered by the Government to show
that Petitioner knew what Stallings was engaged in. When
you add this disputed evidence to the undisputed evidence
of the fact that Stallings was engaged in a criminal
enterprise concerning drugs and that Petitioner did in fact
aid and assist him by driving him to the restaurant by
allowing him to use his car in which he apparently
transported the heroin, and by unlocking his service station
and allowing Stallings and Price to go inside where they
transacted their illegal business, the only reasonable
conclusion to draw from the not guilty verdict is that the
trial court disbelieved the testimony of the government
witness relating to the disputed testimony, the statements
allegediy made by petitioner, and that as a result of the
disbelief, the trial court found that Petitioner did not know
what Stallings was engaged in. There is no reasonable way
that the trial court could have found that Petitioner made
these statements and then still found him ‘not guilty.
Certainly, all of the other elements of aiding and abetting
were present, those being that Stallings was engaged in a
criminal enterprise and Petitioner did in fact aid and assist
him. The only element that could have been missing was
knowledge and by his verdict, the trial court found that it
was in fact missing.
Based on the above, any verdict of guilty as to February
27, 1973 would be inconsistent with the verdict of not
guilty as to December 3, 1972. For one thing, nowhere in
the record of this trial is there any evidence that Petitioner
made any statements on February 27, 1973, concerning
possession, distribution or knowledge of drugs. In fact all
of the government witnesses who testified expressly stated
that they had no such conversation with petitioner nor did
they witness any such conversation take place. In addition
21
there is no evidence that Petitioner and Stallings were
engaged in a joint enterprise on February 27, as was the
case on December 3rd (Price’s testimony that Petitioner
said, “Sam and | will go get the heroin while | go inside
Rice’s Grill with them.”) Further, there was nothing that
Petitioner said or did on February 27th which would
reasonably support the conclusion that Petitioner knew
what Stallings was doing on that date.
The only testimony offered by the government which
would arguably be incriminating was the testimony. of
Price to the effect that when he had expressed some
misgivings about two city policemen that he had seen near
the Holiday Inn, ‘that Petitioner told him that he would
take him out to the Mortuary which was outside the city
limits. Even if this testimony is true, Petitioner’s criminal
intent is completely negated by the uncontradicted
‘evidence in the record that after they had all reached the
Mortuary, Petitioner tried to get the agents to go back into
town with him to locate Stallings at Robbie’s Rib House.
Both government agents admitted as much. The only act
committed by Petitioner which the government contended
showed Petitioner’s knowledge of Stallings activities was
the testimony of the three agents who made the arrest to
the effect that Petitioner who was operating the van in
which the heroin was found had attempted to flee from
capture just before his arrest on February 27th and in so
doing had attempted to aid and abett Stallings to escape
capture for the heroin that was found in the van. However,
on this point, the government’s own evidence negates this
inference. The substance of their testimony was that they
had observed a meeting between Price and Stallings behind
the Mortuary earlier that day, after which Stallings and
Petitioner got in Petitioner’s van and drove off with
Petitioner driving. That they were either standing or
stooping behind their car which was unmarked and that
22
they were dressed in plain clothes with nothing on them or
their car to indicate that they were law enforcement agents.
They also testified they were positioned behind the
Mortuary along the side of the road that ran behind the
Mortuary. They testified that approximately 30 minutes
after the Price-Stallings meeting, they saw the van coming
down the back road with Petitioner driving and Stallings a
passenger. That the van passed by their position and
Stallings looked in their direction, after which time, the
van speeded up, came to an intersection and made a left
turn and drove away in a direction away from the
Mortuary. That they got in their car and gave immediate
pursuit (App filed with Circuit Court-p 30-A). That in a
short period of time they got behind the van, flashed their
head lights and placed their badges outside the window.
That the van immediately stopped and pulled off on the
shoulder of the road. One agent went to the Petitioner's
side and one agent went to the passenger or Stallings side.
Petitioner immediately got out. It took a minute or two to
get Stallings out. The agents were forced to admit that they
did not have to exceed the speed limit to catch the van and
that they caught up with it in a very short time. They
further testified that the van stopped immediately upon
their flashing the lights on the government vehicle. See also
Appeals Court Appendix 47A, 48A, 49A and 50A on the
question of flight. Agent King testified that he went to the
passenger side and arrested Stallings. He stated that
Stallings did not get out immediately and testified:
“After placing Stallings under arrest, | placed
handcuffs on him. I immediately entered the van
to make sure there were no other individuals in
there that could cause harm to any of the agents. I
observed a tin foil.”
OBJECTION: Overruled
=
23
JUDGE LARKINS: Was there anyone else in the van?
THE WITNESS: No Sir, there was no one King
continued.
“At this point, I observed a tin foil package directly
behind the passenger seat.” (See Appeals Appendix-53A).
This tin foil packet was later found to contain the
heroin which was the subject of County (5) of the
indictment. The government in its brief filed with Court of
Appeals conceded that the heroin belonged to Stallings
and that it had been in Stallings shirt pocket when the van
was stopped by the federal agents and that in an effort to
dispose of the incriminating evidence, Stallings threw the
heroin package over his shoulder into the rear of the van.
The government conceded that these were the true facts
and that they showed Stallings to be in actual possession of
heroin (Govt. Brief pp. 10, 11). The government contended
however that there was sufficient evidence to infer that
Petitioner knew of Stallings possession of this heroin and
that he actively aided and abetted Stallings in assisting him
in getting in contact with undercover agent Price for the
purpose of selling heroin (Govt. Brief- P.11). The basic
support the government offers for its contention that
Petitioner knew what Stallings was doing on February 27,
1973 is the evidence of Petitioner’s statements on
December 3, 1972, which indicated knowledge. However,
petitioner would contend that the not guilty verdicts as to
December 3, 1972, foreclosed consideration of that
evidence. Therefore petitioner’s point is that the events of
February 27, must stand or fail on their own and cannot be
supported by the December 3rd, evidence.
With respect to that point, petitioner would argue that
there is nothing in the record concerning the events of
February 27, 1973, to indicate either directly or by
inference that petitioner knew Stallings was in possession
24
of the heroin which was found in the van. In fact the only
testimony on this point is to the contrary, that being the
testimony of Stallings and Petitioner (Appellant’s Brief-pp-
13, 14, 15, 16, 17, 18, 19).
Based on the above, the petitioner would urge that the
verdicts are inconsistent. That being so the question
becomes whether the inconsistent verdicts are permissible
in nonjury trials such as the instant case.
In the landmark case of Dunn vs. United States 284 U.
S. 390, this court had the opportunity to consider the
question of inconsistent verdicts insofar as they related to
jury trials. This Court held that such verdicts are
permissible in jury trials and offend no sections of the
United States Constitution or the amendments thereto. As
far as counsel has been able to determine this Court has
never decided whether the holding in Dunn should be
extended to nonjury trials in our federal courts. The
leading case on this question would appear to be Maybury
v. United States 274 F. 2d 899 (2nd Cir. 1960) which held
that inconsistent verdicts are not permitted in trials by the
Court, sitting without the intervention of a jury. In
Maybury, the government citing the Dunn case contended
that the principle of Dunn should apply to nonjury trials
stating among other things that the waiver of a jury
substituted the judge for the jury in all respects. Judge
Friendly who wrote the opinion in Maybury first
summarized the historical reasons why inconsistency was
allowed in jury trial, they being:
(1.) The special considerations relating to the nature
and function of the Jury in such cases. On this point
Steckler v. United States 7 F. 2d 59 (2nd Cir. 1925) was
cited for the following language.
“The most that can be said in such cases is that
the verdict shows that either in the acquittal or
25
the conviction, the jury did not speak their real
conclusions, but that does not show that they
were not convinced of the defendant’s guilt. We
interpret the acquittal as no more than assump-
tion of a power which they had no right to
exercise, but to which they were disposed through
lenity.”
Judge Friendly found that this language had been
quoted with approval by Mr. Justice Holmes in the Dunn
case, who had also added a reference to Horning v. District
of Columbia 254 U. S. 135, (1920) in which he noted that in
a criminal case “the jury had the power to bring in a verdict
in the teeth of both law and facts.” Justice Friendly then
talked about other considerations the very beginning of the
use of the jury as a mode of trial, the arbitralelement in a
jury trial the requirement of unanimity, that the verdict of
- the jury is not the verdict of twelve men, it is the verdict of
a community, that ignoring consistency in the jury's
disposition of the counts of a criminal indictment may be
deemed a price for securing the unanimous verdict that the
Sixth Amendment required.
Judge Friendly then found that none of these
considerations were applicable to the trial of a criminal
case before a Judge. That there was no arbitral element ina
nonjury trial, that if a judge wanted to exercise lenity, he
could do so at the time of sentencing, there was no need to
permit inconsistency so that the Judge could reach
unanimity with himself. Judge Friendly then announced
the following:
“We do not believe we would enhance respect for
law for the Courts by recognizing for a Judge the
same right to indulge in “Vagaries” in the
disposition of criminal charges that, for historic
reasons, had been granted the jury, U. S. v.
26
Datterwich 1943, 320 U. S. 277, 279... We know
the role of logic in law is not unlimited; but
“Holmes did not tell us that logic is to be ignored
when experience is silent. Cardoza, the nature of
the Judicial Process 33.” Since we find no
experience to justify approval of an inconsistent
judgment, when a criminal case is tried to a judge,
we think logic should prevail”.
The Ninth Circuit in the case of McElheny v. United
States 146 F. 2d 932 (1944) expressed a contrary view to
the view taken in Maybury and held that inconsistent
verdicts are permitted in nonjury trials. However, the
Ninth Circuit in its opinion did not discuss whether the
considerations in jury and nonjury trials are necessarily the
same. Since the Maybury decision in 1960 its holding has
been cited with approval in United States Ex Rel. Owen v.
McMann, 435 F. 2d 813 (2nd Cir. 1970); United States v.
Zamora-Corona, 465 F. 2d 457 (9th Cir. 1972). It is
interesting to note that although the Court in Zamora
found the verdicts not to be necessarily inconsistent, and
therefore did not have to reach the issue of whether they
were permissible, the Court did cite Maybury as the lead
opinion and its own circuit case, McElheny as a contrary
opinion, which is an indication that McElheny may have
been overruled if the verdicts had in fact been inconsistent.
In United States v. Bethea, 483 F. 2d 1024 (4th Cir. 1973)
not only was Maybury cited with approval at page 1030,
but in addition the Court refused to extend the Dunn rule
to a jury trial where the jury had acted irrationally.
In addition to the reasons set forth above this Court
should grant Certiorari to consider this issue of inconsis-
tent verdicts because there is an apparent conflict between
the two circuits that have written opinions on the subject
the Second Circuit in Maybury and the Ninth Circuit in
McElheny.
27
ll. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER THE PRINCIPLE OF
COLLATERAL ESTOPPEL STATED IN ASHE V.
SWENSON 397 U. S. 436, FORECLOSED THE TRIAL
COURT, SITTING WITHOUT A JURY FROM CON-
SIDERING EVIDENCE WHICH INFERRED PETI-
TIONER’S CRIMINAL KNOWLEDGE ON DECEM-
BER 3, 1972, WHEN THE TRIAL COURT WAS
CONSIDERING THE QUESTION OF PETITIONER’S
CRIMINAL KNOWLEDGE ON FEBRUARY 27, 1973,
IN LIGHT OF THE COURT'S FINDING OF NOT
GUILTY AS TO THE PETITIONER’S CRIMINAL
KNOWLEDGE ON THE EARLIER DATE.
The record in this case does not indicate whether the
trial court used the December 3rd evidence to support the
February 27th convictions. The government conceded that
the isolated facts of February 27th were insufficient
standing alone to support the convictions and that the
December 3rd evidence was necessary. Therefore, petition-
er assumes that said evidence was in fact used. The
question is whether it was proper to do so. Petitioner
would maintain that under the circumstances of the instant
case, it was not proper to do so.
Petitioner would urge that it was not proper to use any
evidence of December 3rd indicating Petitioner's guilty
knowledge on that date in light of the not guilty verdict
which by implication was a finding of fact that he did not
have such knowledge. In particular, petitioner is referring
to the statements allegedly made by Petitioner on
December 3rd, that “Sam and | will go get the heroin while
you go in the restaurant” and the statement made to the
informant at the service station to the effect that he the
petitioner could get the informant some cocaine for the
right prices. In order to find that Petitioner lacked
knowledge, the trial court had to find that he did not
28
make the above statement, for either or both of them
would have indicated knowledge.
Having found the petitioner not guilty as to the
December 3rd charges, the trial court implicitly found that
he lacked guilty knowledge and having found that he
lacked guilty knowledge, he had to have found that he
made neither of the statements attributed to him. Having
determined that he did not make the statements, the
questions of whether or not he made the statements should
have been foreclosed to the trial court. It certainly would
be impermissible for the trial court to have found that as to
the December 3rd offenses, he did not make the
statements, but as to February 27th offenses, he did in fact
make the very statements which the court had previously
said he did not make. This would be the epitome of
irrationality.
Petitioner would argue that the pane! opinion of the
Fourth Circuit in United States v. Phillips 502 F. 2d 227
(4th Cir. 1974) is the correct interpretation of Ashe v.
Swenson, supra. In Phillips case, the defendant was
charged in an indictment with robbing a bank. At his trial,
he sought to establish an alibi and challenged prosecution
witnesses whose testimony placed him in the bank during
the robbery. During its deliberating the jury asked the
judge the following question:
“If we believe that Phillips was involved in the bank
robbery but not at the bank at the time of the robbery, is he
guilty or not guilty?....” The Judge replied that in that case
dispossing of the proceeds. Ten minutes later defendant
was convicted of lessor offense. This conviction was set
aside and a new indictment was issued charging possession.
Prior to swearing of jury, defendant moved to prohibit
introduction of any evidence showing his presence in the
29
bank at the time of the robbery. His motion was overruled.
At the trial, government offered evidence tending to
establish defendant's presence in the bank at the time of the
robbery. He was convicted. On appeal the Fourth Circuit
panel reversed holding that the principle of collateral
estoppel prohibited the introduction of the evidence
showing the defendant’s presence in the bank during the
robbery. The panel held that the first jury effectively
determined that Phillips was not in the bank at the time of
the robbery. The panel held that the pivotal question was
whether Phillips was present in the bank and that the
verdict lead to the conclusion that the jury found that he
was not in the bank. The panel further held that this
evidence was not admissible even for the limited purpose of
showing knowledge. En Banc 5/8 F. 2d /08 (1975) the
panel decision was reversed although Phillips conviction
-was reversed on other grounds. The En Banc decision was
that on the facts as recited in the panel’s opinion the jury’s
implicit acquittal of bank robbery in the first trial did not
collaterally stop the government from showing guilty
knowledge by proof of defendant's presence and participa-
tion in the robbery.
Petitioner would urge that the en banc decision
completely disregards this court's holding in Ashe v.
Swenson and amounts to a refusal to correctly apply the
Ashe decision. By implication, the Fourth Circuit has
made the same determination in the petitioner's case which
is just as erroneous. s
The Phillips case is now before this Court on the
government's petition filed July 30, 1975, case number 75-
167.
lil. THE COURT SHOULD GRANT CERTIORA-
RI TO CONSIDER WHETHER FINDINGS OF FACT
ARE ESSENTIAL TO PROPER APPELLATE RE-
VIEW WHERE THE RECORD SUGGESTS INCON-
30
SISTENT VERDICTS OR SUGGESTS SEVERAL
LEGAL PRINCIPLES WHICH THE TRIAL COURT
MIGHT HAVE INVOKED.
Rule 23 (c) of the Federal Rules of Criminal Procedure
for United States District Court require district courts to
make specific findings in fact in non-jury cases upon
request. Courts constructing Rule 23 (c) have generally
held that in the absence of such a request no special
findings are necessary. United States v. Marquez 332 F. 2d
160 (2nd Cir. 1960); and Lofland v. United States 357 F. 2d
472 (9th Cir. 1966.) However, the case of Clayton v. United
States 447 F. 2d 476 (9th Cir. 1971) seems to indicate that
in a proper case the failure of the trial court to make special
findings of fact may constitute reversible error, especially
where such failure results to serious prejudice to the
defendant.
Additionally, United States v. Livingston, 459 F. 2d
797 (3rd Cir. 1972) seems to stand for the proposition that
findings of fact are essential to proper appellate review of a
conviction resulting from a non-jury trial, when the facts of
the case suggest several legal principles which the trial
judge might have invoked. In Livingston, there is the
following language at Page 779:
“Findings of fact in non-jury criminal cases
primarly aid the defendant is preserving questions
for appeal and aid the appellate court in
delineating the factual bases on which the trial
court’s decision rested. See Moore’s Federal
Practice (Cipes, 2d) Para 23.05. Indeed it has
been suggested that findings under Rule 23 (c) are
a perequisite to preserving for appeal issues
concerning the significance or existence of a
particular fact, see Wilson v. U. S. 250 F. 2d 312,
325 (9th Cir. 1957). Findings of fact are
31
essential to proper appellate review of a conviction
resulting from a non jury trial. This was an important
consideration when the present text of Rule 23 (c) was
promulgated, changing existing law and requiring the trial
judge to make special findings, if requested.
Petitioner would contend that not only would special
findings be helpful in this case, they are absolutely
necessary to the petitioner, to the government and to this
Court. There is no way of determining from the record and
other documents in this case what the trial judge
determined the facts to be with respect to either December
3rd or February 27th. There is no way of knowing which
legal principles he invoked in order to arrive at his different
verdicts as to each date. The verdicts cannot be explained
from the standpoint of logic or reason. Counsel for the
government at the time of the oral arguments in the Fourth
Circuit on September 4, 1974, stated in open court that he
did not know how the trial judge arrived at his verdicts.
Petitioner does not know. At this point, only the trial judge
knows what he found the facts to be. Petitioner has
previously argued in Points | and II that the verdicts
appear to be inconsistent and that the doctrine of collateral
estoppel may have been improperly applied. As a
minimum, this court should remand this case to the Fourth
Circuit with directions for the Fourth Circuit to remand to
the trial judge with instructions to enter upon the record
special findings as to verdicts rendered for offenses alleged
to have been committed on each date. This idea was
previously suggested by Chief Judge Haynsworth in his
comments from the bench when this matter was argued
before the Fourth Circuit on September 4, 1974.
IV. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER THE EVIDENCE OF
PETITIONER’S GUILT FOR OFFENSES COMMIT-
32
TED ON FEBRUARY 27, 1973 WAS SO LACKING IN
SUBSTANCE THAT THE CONVICTIONS WHICH
RESULTED THEREFROM VIOLATED HIS DUE
PROCESS RIGHTS UNDER THE FIFTH AMEND-
MENT TO THE UNITED STATES CONSITUTION.
In previous parts of this petition, the petitioner has
discussed in much detail the evidence in this case. In his
brief filed with the Fourth Circuit the petitioner cited the
following cases which taken together, positively indicate
that the evidence in this case was insufficient. The cases are
Gabriel v. United States, 366 F. 2d 726; United States v.
Bethea, 442 F. 2d 790 (D. C. Cir. 1970; Bass v. United
States 326 F. 2d 884 (8th Cir. 1964); U. S. v. Jones 308 F.
2d 26 (2nd Cir. 1962; Hernandez vs. U. S., 300 F. 2d 114
(9th Cir.); Brumbelow v. U. S., 323 F. 2d 703 (16th Cir.
1963); U. S. v. Jackson 408 F. 2d 306 (9th Cir. 1969);
Jackson v. U. S. 423 F. 2d 506 (9th Cir. 1970). The
Government conceded in its brief that the above cases
would hold the isolated facts © February 27, 1973 to be
insufficient evidence to support a conviction under the
lega! doctrine of constructive possession. (Govt. Brief p.
14). The case of Murray v. United States 403 F. 2d 694 (9th
Cir. 1968) is very important to petitioner’s case for as in
petitioner's case it dealt with a close relationship between
two brothers as the instant case deals with close
relationship between two friends, petitioner and Stallings.
in the Murray case, Lonnie Murray was charged with
smuggling drugs. His brother whom he was accompanying
was discovered to have illegal drugs on his person at the
border inspection. The defendant and his brother denied
the defendant’s knowledge of the drugs. There was no
other evidence as to the defendant's buying drugs. The
Court reversed for lack of sufficient evidence, holding:
“Mere proximity to the drug, mere presence on
the property where it is located, or mere
33
association, without more, with the person who
does control the drug or the property on which it
is found, is insufficient to support a finding of
possession.”
Id. at 696, the Court added, with regard to the
relationship between the brothers:
“From the facts that Johnnie and Lonnie were
brothers who maintained a close relationship
with each other, that the trip was Lonnie’s idea
and he paid for the flight from San Fransico to
Los Angeles, that Lonnie drove the borrowed car
and that Lonnie may have had a stranger
personality than Johnnie, no inference arose that
Johnnie was subject to the control of Lonnie or
that they were engaged in a joint venture, or that
Lonnie could control the disposition of the heroin
concealed on Johnnie's person.”
It will be noted that in both Murray and petitioner's
case, all defendants denied the involvement of Lonnie and
petitioner, respectfully. In Murray the court said:
“Lonnie and Johnnie both denied that Lonnie
knew anything about the heroin. Johnnie gave an
explanation about his own possession of the drug
implicating only himself. The district court of
course, could have disbelieved both of them, but
rejection of their testimony on this point simply
leaves a blank. It adds nothing to the proof. A
conclusion that Lonnie and Johnnie lied about
Lonnie’s knowledge is not evidence that Johnnie
told Lonnie or that Lonnie learned about it some
other way. The burden is on the government to
prove knowledge not upon Lonnie to dispose that
fact.
Id. at 696.
34
Petitioner's case is very similar to the Murray case for a
number of reasons all of which indicate that the evidence is
insufficient.
The landmark case of Thompson vs. Louisville, 362, U.
S. 199, holds that where the evidence is insufficient to
support the convictions, the convictions violate the due
process clause of the Fifth and Fourteenth Amendments to
the United States Constitution. Petitioner would argue
that the due process clause of the Fifth Amendment was
violated in his case.
V. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER THE FOURTH AMEND-
MENT TO THE UNITED STATES CONSTITUTION
WAS VIOLATED BY PETITIONER’S ARREST AND
THE SUBSEQUENT SEARCH WHICH RESULTED
IN THE SEIZURE OF THE PISTOLS AND THE
HEROIN.
Draper v. U. S. 358 U.S. 307 (1959), stated the baseline
requirement for every arrest without a warrant is probably
cause or a reasonable ground for belief of guilt.
It is basic that an arrest with or without a warrant must
stand upon firmer grounds than mere suspicion, even
though the arresting officer need not have in hand evidence
which would suffice to convict. This is established in the
following cases. Wong Sun v. U. S. 371 U.S. 471 (1963); U.
S. v. Walker (1957) 7th Cir. 246 F. 2d 519; Hawkins v. U.
S. (1961) 8th Cir. 246, 519; Hawkins v. U. S. (1961) 8th Cir.
Mo. 288 F. 2d Cert. Den 366 U. S. 975; and Butler v. U. S.
(1959) 9th Cir. 273 F. 2d 436.
The standards and procedures for determining prob-
able cause in a warrantless arrest are best summed up in
Israel and Latave, Criminal Procedure in a Nutshell, at
Page 99.
35
If the police had acted without a warrant, the
probable cause determination must be made
primarily upon the basis of the officer’s testimony
on the motion to suppress and there is some risk
that the facts brought out at that time may not be
limited to those upon which the officer acted.
Inasmuch as on the appeal from a conviction as this
case is, the reviewing court will look at the evidence most
favorable to the government's side in determining the
question of probable cause, let’s look at the evidence in
that light.
With reference to the events of February 27, 1973, one
event was Dove’s presence with Stallings. Assuming that
there was probably cause to arrest Stallings, the cases
clearly state that one’s mere presence with a suspect does
not justify arrest. In United States v. Bazinet, 462 F. 2d 982
(8th Cir. 1972), there was a prosecution for conspiracy to
rob a bank. The defendant was in a car with the prime
subject (knox) and was known to the officer as a convicted
felon. The Bazinet court held that mere presence with a
suspect was not probable cause for arrest, relying heavily
on United States v. Di Re, 322 U.S. 581:
“In our view, Bazinet’s arrest was illegal under
United States v. Di Re, Supra, whose relevant
facts closely parallel those before us. In Di Re,
the police had information from a reliable
informant, Reed, that one Buttitta was going to
sell him some counterfeit gasoline ration cou-
pons. They had no’such information with respect
to Di Re. When the Police arrived at the location
where the sale was to occur, they found Reed,
Buttitta, and Di Re in a car. They arrested all
three, and in searching Di Re they discovered
counterfeit gasoline ration coupons in_ his
36
pocket. A later search at the police station
revealed additional coupons on Di Re’s person.
The government attempted to justify that of Di
Re as incident to a lawful arrest.
The Supreme Court found that there was not
probable cause for Di Re’s arrest on the basis,
that in the absence of other information tending
to establish his culpability, his mere presence in
the car with Buttitta and Reed did not warrant
the inference that he was engaged in criminal
activity. The court stated: ..... The argument that
one who accompanies a criminal to a crime
rendezvous cannot be assumed to be a bystand-
er...1s farfetched when the meeting is not secretive
or in a suspicious hide-out but in broad daylight,
in plain sight of passerby, in a public street of a
large city, and where the alleged substantive
crime is one which does not necessarily involve
any act visibly criminal. If Di Re had witnessed
the passing of papers from hand to hand, it would
not follow that he knew they were ration
coupons, and if he saw that they were ration
coupons and it would not follow that he would
know them to be counterfeit...” United States v.
Di Re, Supra 332 U.S. at 593, 68 S. Ct. at 228.
If anything, there is less reason to justify Bazinet’s
arrest than there was to support Di Re’s. First, in
Di Re, there was reason to suspect, and the
Supreme Court assumed for purposes of argu-
ment that Di Re was present when the actual
criminal transfer occurred. On our record, there
Was no act criminal in itself, committed by Knox
in Bazinet’s presence. Second, the Supreme Court
held that Di Re would not necessarily know
37
that the coupons were counterfeit even if he had
seen them. In our case, the evidence merely
showed that Knox was carrying a paper bag;
There is no evidence that Bazinet could see, or
knew that contents were criminal if he had seem
them. Third, Knox had carried the bag from the
house while the police observed him the bag was
found next to him on the seat and there was no
creditable evidence of any reason for the police to
suspect that Bazinet had any association with the
bag or exercised any control over it, except for his
presence in the same car. The bag was clearly
Knox’s fourth, the occurrences here took place
under circumstances similar to those in Di Re, in
that the meeting was “not secretive or in a
suspicious hide-out but in broad daylight, in plain
sight of passerby, in a public street or a large City.
Fifth, as in Di Re, the police had no information
regarding Bazinet’s present involvement in any
crime but arrested him because of his presence in
the car with Knox who was carrying, in a
concealed fashion, items suggestive of criminal
activity on his part. This is not enough to justify
Bazinet’s arrest.
Here the government may argue that Dove's act in
taking the agents outside of the City limits is an act that
justified his arrest. However, the record itself, sufficiently
rebuts this argument for a number of reasons. First of all
Dove’s Mortuary was not secluded, the testimony
indicated that the Mortuary sat right out in the open right
next to a well traveled highway. In addition, it was in
broad daylight. The Mortuary did not sit down a patha
distance from the highway. The most important rebuttal of
this argument is that both Price and Quander admitted
that once they reached the Mortuary, Dove tried to get
38
them to go with him to Robbie’s Rib House to locate
Stallings. If as the Government argues Dove's purpose for
leading the agents back to his Mortuary was to get them
outside the City limits, how do you explain his invitation to
them to go with him to the Rib House. Even in the light
most favorable to the government, all that can reasonably
be said is that Dove wanted to help them to find Stallings
and that Dove did what anybody else would have done and
that was to get one of the parties situated before he started
looking for the other party. Otherwise by the time he found
Stallings the agents may have been someplace else. On this
point of extreme importance in Quander’s testimony. The
main point here is that ignoring this claim of the
government that Dove was taking the agents to a secluded
point, which the records compels you to do, taken along
with Dove’s ignorance of the conversation between Price
and Stallings did not establish probable cause. See, United
States v. Line 464 F. 2d 356 (9th Cir. 1972) for a similiar
point. There was no evidence that Dove overheard the
conversation between Price and Stallings. The most that
Price could say was that he was eight to ten feet away from
where the conversation took place.
The testimony of McCracken the agent who ordered
the arrest, indicates that after the van passed their
observation point and after Stallings saw them, the van
driven by Dove sped up. Apparently McCracken decided
to arrest after he felt the agent's cover had been blown. The
flight of a narcotics suspect has been held in itself not to
justify an inference of guilt sufficient to generate probable
cause for an arrest. Wong Sun v. U. S. cited Supra. There
is some authority for the proposition that flight from an
officer is grounds for arrest. However, the grounds upon
which courts have held flight to be sufficient cause
justifying an arrest are absent in this case. In United States
v. Moore, 456 F. 2d 223 (Sth Cir. 1972), the defendants
39
drove to within 36 feet of an illegal still, at which point
federal officers appeared ordering them to halt, instead, the
defendants whose identity was unknown fled. The agents
first identified themselves as federal agents. The court
found probable cause for arrest and stated:
The flight of the suspects whose identity was
unknown provided the exigent circumstances
necessary for warrantless arrest. Willie B. Moore
argues that she did not know the men approach-
ing the pickup were federal officers. There is
controverted testimony on whether the officers
sounded their siren, but uncontroverted evidence
that officer Zeigler displayed his badge and
identified himself before Mrs. Moore brandished
her gun. Moreover, officer Wilhjelm had identifi-
ed himself as a Federal agent at the still site.
In United States v. Kansco (1958) 252 F. 2d 220 (2nd
Cir), it was held that the fact that the suspect recognizes a
narcotics agent following him in his capacity as an agent
may explain the need for action without a warrant. The
same was held in U. S. v. Soyka 394 F. 2d 443 (2nd Cir.
1968), where the suspect, upon seeing a federal agent in the
hall near his apartment jumped back toward the inner
recess of the apartment.
The above cases are obviously distinguishable from the
instant case. The government's evidence of flight is at best
ambiguous. The agents did not identify themselves as
federal officers as the van passed them. Their car was not
marked. It took them less than a quarter of a mile to catch
up with Dove and they did this by reaching a top speed of
55 mph. In addition, according to the agents as soon as
they flashed their light and identified themselves, the van
immediately pulled over to the side of the road and
stopped. That when ordered to do so, Dove immediately
got out of the van and offered no resistance either before
40
or after his arrest. The testimony of McCracken does
indicate that Price had advised him of his purchases from
Stallings on December 3, 1972 and January 12, 1973. There
again, that testimony may have furnished probable cause
to arrest Stallings and even though Price may have advised
McCracken that Dove was with Stallings on December 3,
1972, the holding of Bazinet and Di Re that “Mere
presence is not enough” would again come inte promi-
nence.
Inasmuch as I cited earlier Israel and Latave to the
effect that the “Probable cause determination is made
primarily on the basis of the officer's testimony on the
Motion to Suppress” let us look at McCracken’s
testimony. He stated that he arrested Dove and Stallings:
“Because I believed them to be in possession of drugs at
the time.”
McCracken never stated what the basis of the above
belief was and nowhere does it appear in the record of this
trial. However, his reason for arresting Dove can perhaps
be explained from some of his other testimony. For
example when he was being cross examined concerning
whether they had made plans at the Holiday Inn to
purchase drugs Dove in addition to Stallings, he said that
they knew that Dove was associated with Stallings (38A et
al). All through the trial, the theory of the government's
case was that Dove was associated with Stallings therefore
he was equally guilty. Perhaps the most important
circumstances on this issue is the question of the raising of
the trunk lid, which was to be the signal that Stallings had
the drugs. You will recall from the testimony of the
government that there was a meeting of the agents at the
Hcliday Inn, where a plan was developed. The plan was
that Price would meet with Stallings. McCracken, Sheehan
and King would observe the meeting. If at this meeting,
4|
Stallings had the heroin Price would go to the trunk lid
which would be the signal that Stallings had the heroin.
The testimony of all the government agents was that at this
meeting the signal was never given. Therefore the one event
that was to furnish the agents with probable cause never
took place (44A et al). In addition, from the time of the
meeting between Price and Stallings and up to an including
the time Dove and Stallings were later arrested, the sign
was never given, nor was there any communication
between Price and the arresting officers. Therefore, by its
own witnesses, the government has shown an absence of
probable cause for the arrest. In addition the government
does not even contend that at the time, Dove and Stallings
were seen operating the van in an area behind the
Mortuary just before their arrest, that they were at that
time on their way back to a meeting with Price. Weldon
Hollowell, Assistant United States Attorney made the
following argument for the government in response to our
Motion to Suppress;
And when they came back, (meaning when they
were seen behind the Mortuary, Dove and
Stallings) well, of course they see something that
does not look right. They see some of these
officers or they see that someone give rise to
suspicion. And certaintly they didn’t come back
to see Price to complete that transaction.
These officers knew that they had reasonable
grounds to know that in all probab ‘ity when they
by passed and accelerated their speed, well
certainly there was every probability that there
was some controlled substance cn that car, on
that econoline, whatever they, they called it the
ford vehicle. (71A et al).
42
If as the government contends, Dove and Stallings were
not headed back for a meeting with Price, then the only
reasonable conclusion to be drawn from that circumstance
would be that Stallings did not have the heroin at that
time. For according to Price Stallings had gone off to get
the heroin and if Stallings had the heroin at the time the
agents saw them behind the Mortuary then Stallings, in all
probability would have been heading back for a meeting
with Price. If they were not heading back for this meeting,
they must have been going someplace else and (n all
probability to deliver the funiture as Dove and Stallings
both stated.
What, in all probability happened was that when
McCracken saw the van come down the road behind the
Mortuary and make a left turn down a paved road away
from the Mortuary, he panicked and made a hasty decision
to make a premature arrest. If he had only waited, in all
probability Stallings would have gone back into New Bern,
met with his source and would have come back to the
Mortuary and made the deal with Price, at which time
Price would probably have given the signal, thereby
furnishing McCracken with probable cause. Certainly this
court should not uphold the hasty, panicky decision of a
drug agent who acted on impulse and mere suspicion.
lt would have been helpful to counsel and to this
reviewing court if Judge Larkins had made findings of fact
with respect to whether or not the evidence established
flight on the part of the defendant, whether or not Dove
and Stallings recognized the agents as being agents. All of
the evidence would tend to indicate that Dove did not see
them. The fact that Stallings only had eight grams of
heroin certainly indicates that he was not on his way back
to mieet with Price and indicates further that this eight
grams of heroin was not the heroin that had been the
subject of the meeting with Price. It would have been
43
helpful if McCracken had stated his grounds for believing
the van contained narcotic drugs at the time he gave the
order to arrest. McCracken, not having stated his grounds
it is very difficult for counsel to point out to this reviewing
court why those grounds were insufficient. In the absence
of any statement, counsel must assume that he acted upon
the grounds stated by U. S. Attorney Hollowell, those
being the fact that the van bypassed the Mortuary and
went in a direction away from the Mortuary at an
accelerated speed from the Mortuary; that is not probable
cause.
Based on the above it is the contention of the defendant
that the facts within the knowledge of McCracken,
Sheehan and King, whether personal or hearsay did not
furnish them with sufficient knowledge to constitute
probable cause for the arrest of the defendant. Brinegar v.
U.S. 338 U.S. 160 (1948), which gives the classic definition
of probable cause states the facts must be “within the
arresting officer’s knowledge”.
In addition even if the arrest were lawful, which counsel
does not concede and in fact denies, the subsequent search
of the van not having been made as an incident to the arrest
was therefore illegal. King, who searched the van stated
that he did so to see if anyone else was in the van and for
that reason alone. Once he accomplished that purpose, he
should have stopped. Any search beyond that point would
have amounted to an unlawful intrusion; therefore the
subject search and seizure of the heroin was unlawful and
illegal. In addition in that Dove and Stallings had been
taken into custody and secured there was no need or
exigent circumstances warranting the search which
produced the heroin. Therefore, it was illegal. Chimel v.
California 345 U. S. 752 (1969).
43
CONCLUSION
Petitioner prays that the petition for writ of certiorari
be granted.
hy : |
HN H. HARMON
P.O. Box 636
New Bern, N. C. 28560
Tel: 919-633-3114
NORRIS C. REED, JR.
415 Broad Street
New Bern, N. C. 28560
Tel: 919-637-2789
—_— ae “
45
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he has today
served a copy of the foregoing petition on the Honorable
Robert Bork, Solicitor General, Department of Justice.
Washington, D. C. by delivering a copy to the United
States Mail, postage prepaid addressed to him at the
Department of Justice, Washington, D. C.
This 3rd day of October, 1975.
John H. Harmon
ATTORNEY FOR PETITIONER
46
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
No. 75-
OSCAR ROOSEVELT DOVE
Petitioner
VS.
UNITED STATES OF AMERICA
Respondent
Appendix to
Petition for Writ of Certiorari to
the United States Court of Appeals
for the Fourth Circuit.
JOHN H. HARMON
P.O. Box 636
New Bern, North Carolina 28560
Tel: 919-633-3114
NORRIS C. REED, JR.
415 Broad Street
New Bern, North Carolina 28560
Tel: 919-637-2789
Attorneys for Petitioner
47
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 73-2193
UNITED STATES OF AMERICA, Appellee,
-versus-
OSCAR ROOSEVELT DOVE, Appellant.
Appeal from the United States District Court for the
Eastern District of North Carolina, at New Bern. John D.
Larkins, Jr., District Judge.
Argued: September 4, 1974.
Decided: September 23, 1974
Before HAYNSWORTH, Chief Judge, RUSSELL and
WIDENER, Circuit Judges.
John H. Harmon (Norris C. Reed, Jr., on brief) for
Appellant; Carl L. Tilghman, Assistant United States
Attorney, (Thomas P. McNamara, United States Attor-
ney, and Malcolm J. Howard, Assistant United States’
Attorney, on brief) for Appellee.
48
PER CURIAM:
_ Oscar Roosevelt Dove was found guilty by the
District Court, sitting without a jury, of possession of
heroin, in violation of 21 U.S.C. §841, and unlawfully
carrying a firearm while in the commission of a felony, in
violation of 18 U.S.C. §924 (c).
Upon considering the record, briefs and oral
argument, we find no reversible error, and affirm the
judgment of the District Court.
AFFIRMED.
49
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 73-2193
United States of America, Appellee,
versus
Oscar Roosevelt Dove, | Appellant.
ORDER
Treating Mr. Harmon’s letter of June 10, 1975 as
another petition for rehearing and after circulation of
copies of the letter to all members of the court, and upon
consideration thereof and of the earlier petition for
rehearing with its suggestion for rehearing en banc filed on
October 4, 1974, and no request for a poll of the court
having been received from any judge in regular active
service.
IT IS NOW ORDERED, with the concurrence of
Judge Russell and Judge Widener, that such petitions for
rehearing be, and each of them is, hereby denied.
Clement F. Haynsworth, Jr.
Chief Judge, Fourth Judicial Circuit
July 23, 1975
50
JUDGMENT
UNITED STATES COURT OF APPEALS
FOR THE
FOURTH CIRCUIT
No. 73-2193
United States of America, Appellee,
VS,
Oscar Roosevelt Dove, Appellant.
Appeal from the United States District Court for the
Eastern District of North Carolina.
This cause came on to be heard on the record from the
United States District Court for the Eastern District of
North Carolina, and was argued by counsel.
On consideration whereof, It is now here ordered and
adjudged by this Court that the judgment of the said
District Court appealed from, in this cause, be, and the
same is hereby, affirmed.
William K. Slate, I
CLERK
OVER
51
Supreme Court of the United States
No. A-192
OSCAR ROOSEVELT DOVE,
Petitioner
V.
UNITED STATES
ORDER EXTENDING TIME TO FILE PETITION
FOR
WRIT OF CERTIORARI
UPON CONSIDERATION of the application of
counsel for petitioner (s),
IT IS ORDERED that the time for filing a petition for
writ of certiorari in the above-entitled cause be, and the
same is hereby, extended to and including October 6, 1975.
/S/ William H. Rehnquist
Associate Justice of the Supreme
Court of the United States
Dated this 3
day of September, 1975.
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.