Petition — Henritze v. United States

} Supreme Court, tu. ss. 7

| FILED

D&C 27 1975 |

eS

MICHAEL RODAK, JR. cireK |

IN THE

Supreme Court of the United States

OctoBER TERM, 1975

No @5-913 |

Watter M. Hennitze, JR., Petitioner

v.

Unttep STaTEs oF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WiruaM R. Gienmuiat, III

929 Healey Building

Atlanta, Georgia 30303

Attorney for Petitioner

Press or Byron S. ADAMs PRINTING, INCc., WasHINGTON, D.C.

INDEX

Page

EE ee ee heer Pe ee 1

ID io n:0'5 0055 604d seers cactks cond ennacen 1

Gymeteas FORINWEED oo. ccsccccccccccescccoccccescs 2

CONSTITUTIONAL AND Statutory Provisions Invotvep.. 2

I Ud. J ucccicetensedecibncnséveds densehen 4

REASONS FOR GRANTING THE WRIT ................0-05 9

CS... Uc dace conus ccumeetieekes boas tacatees 17

BEE A i cn doe vecaucansddavedneedadnsoenanesuns la

BEE BO cbbus 6am <i Sb dude ivenseebentikawscducs 3a

I BP iain ends 65-604 ack choses ae haees ue 4a

BE ED 5 6acebecknckndile couch etlbens ceekunsnens 5a

CITATIONS

CASES:

I ee EE, GE g coc ccu cd cn canedsbaaceda 10

BOE G, Wan Ge GE 2 vec cvccccctscvdcceccecss 17

Coolidge v. New Hampshire, 403 U.S. 443 ............ 14

Grunewald v. U.S., 353 U.S. SOL... ccc cece cee 11

ee Oe Ws I I ET hoes cewksddccevcccdscves 10, 11

ee Gi Ses. ee EE bc td edu cducescveness 10, 11, 12

I Oe Bias SE ED 6 6s didn Snencncdiecssndee 16

Mancusi v. DeForte, 390 U.S. 364 ................4.5. 13

SS Wi, Wc Se WE GE ond cose cikncsescescecse 13

SD We Wis Ge GN EP cede dcncndccccccccness 13

U.S. v. Beckley, 335 F.2d 86 ... 2... cece cece ceees 14

ee 0 i Oe ss inns otnness of eawneus 14

Index Continued ii

Page

U.S. v. Galvez, 465 F.2d G61... cece ccc cccccccvece 14

U.S. v. Feldman, 366 F.Supp. 356 ..............++. 10, 14

US. v. Jacknom, GOB PBS TRG 2 ccc ccccccescseessess 10

U.S. v. Lember, 319 F.Supp. 356 ............: bite cua 10

U.S. v. Odland, 502 F.Supp. 148 ...............085- 15

U.S. v. McDaniel, 460 F.2d 129 ...............ee0e- 15

US. v. Garme, GOS WBE GIO occccccccccscssessscsse 12, 16

CONSTITUTIONAL AND STATUTORY PROVISIONS:

U. S. Constitution, Amendment IV ................ 2

U. S. Constitution, Amendment VI ................ 3,11

e Serr er eee eee 14

OD We Ge odviwdccdus ckebecechouecuenesuet 2, 3, 4, 10

Bs! ee rr ee 14

Sh WG, BGS cviccccccddvacdscssaccstncaean 4

BD Tis Ge we ccccccccdcccesccusaccaneeteeeesane 2,3

BE WER. GD ose os cvaceccdesddeccanwcevnsases 2, 4, 10

SD De Tee wanncecdssevdcdasuatecesvounuee 2

8, SY SS eee 13

IN THE

Supreme Court of the United States

OctToBeR TERM, 1975

No.

Water M. HEnRITZE, JR., Petitioner

Vv.

UnItTep STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, Walter M. Henritze, Jr., defendant

below, respectfully prays that a Writ of Certriorari

issue to review the opinion of the United States Court

of Appeals for the Fifth Circuit entered in this pro-

ceeding on October 21, 1975.

OPINIONS BELOW

The opinion of the court of appeals (App. A., in-

fra) and the order denying the motion for rehearing

or rehearing en bane (App. B., infra) are unpub-

lished.

The mandate on the judgment was stayed on Decem-

ber 8, 1975, appellant being given until December 28,

2

1975, to file this writ and notify the Fifth Circuit

Court of Appeals (App. C., infra). The jurisdiction

of the Court is invoked under 28, U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether, venue, under 21 U.S.C. 952(a) (im-

portation of marijuana) becomes fixed at the port-of-

entry and discovery ?

2. Whether a search warrant may describe two

premises and either may be searched under the war-

rant.

3. Whether Federal Agents may disregard the stric-

tures of 18 U.S.C. 3109 (announcement of a Federal

Officer’s presence) partially or completely when exe-

euting a search warrant.

4. Whether defendant’s sub-leased office and desk

could be searched without a search warrant.

5. Whether there are any standards of any nature

which are used in the search and seizure of packages

coming into the United States by mail.

6. Whether there was sufficient evidence to sustain

defendant’s conviction under 18 U.S.C. 371 (con-

spiracy) and 21 U.S.C. 952(a) (importation).

CONSTITUTIONAL AND STATU1 ORY PROVISIONS INVOLVED

United States Constitution, Amendment IV, pro-

vides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

3

scribing the place to be searched, and the persons or

things to be seized.

United States Constitution, Amendment VI, provides

in pertinent part:

In all criminal prosecutions the accused shall en-

joy the right to trial by an impartial jury of the

state and district wherein the crime shall have been

committed. ...

18 U.S.C. 371 provides:

If two or more persons conspire either to commit

any offense against the United States, or to defraud

the United States, or any agency thereof in any man-

ner or for any purpose, and one or more of such per-

sons do any act to effect the object of the conspiracy,

each shall be fined not more than $10,000 or impris-

oned not more than five years, or both.

If, however, the offense, the commission of which

is the object of the conspiracy, is a misdemeanor only,

the punishment for such conspiracy shall not exceed

the maximum punishment provided for such misde-

mvanor.

18 U.S.C. 3109 provides:

Breaking doors or windows for entry or exit.—The

officer may break open any outer or inner door or

window of a house, or any part of a house or anything

wherein to execute and search warrant, if after notice

of his authority and purpose he is refused admittance

or when necessary to liberate himself or a person aid-

ing him in the execution of the warrant.

4

21 U.S.C. 952(a) provides:

It shall be unlawful to import into the customs

territory of the U.S. from any place outside thereof

(but within the U.S.) from any place outside thereof,

any controlled substance in schedule I or II of title

II, ete.

STATEMENT

After a jury trial in the United States District

Court for the Northern District of Georgia, petitioner

was convicted of importing a pound of marijuana in

violation of 21 U.S.C. 952(a) and of conspiring to

commit that offense in violation of 18 U.S.C. 371.

The court directed a verdict of not guilty as to a

third count under 21 U.S.C. 841(a)(1) (possession

with intent to distribute a controlled substance).

Petitioner was sentenced to imprisonment for two years

on each count with two years of special parole to fol-

low, both sentences to run concurrently. On appeal

the court affirmed per curiam (App. A) and denied a

motion for rehearing and rehearing en bane (App. 3).

The court stayed the mandate for thirty days pend-

ing the filing of a Petition for a Writ of Certiorari in

this Court (App. C). This Petition seeks review of

the affirmance of both convictions.

1. The prosecution arose from the following:

On August 8, 1974, Charles Cuccaro, a mail special-

ist working for the customs in New York, opened a

package addressed to June Llewellyn, 2311 Bank of

Georgia Building, Atlanta, Georgia. All packages

from some 20 countries whether first class or not were

opened with the exception of APO packages.

5

He estimated that 99% of all packages coming into

the United States were in fact opened and examined.

Cuccaro, field tested the contents for marijuana and

the test was positive. He wrote a seizure report, ini-

tialed the package, turned the package over to a Drug

Enforcement Administration Officer, who logged it,

resealed the package and sent it on to Atlanta, via

first class regular mail. He, personally, never com-

municated to anyone in Atlanta, though he did include

in the mailing a report on his findings.

Arthur Snitzer, a postal inspector, received the

package on August 20, 1974, in a locked mail bag, with

information that the package contained a controlled

substance.

He informed agent James Williams, of the Drug

Enforcement Administration of the arrival on the

same day, the package remained sealed until the day

before delivery, that is the 12th of September, 1974.

Mr. Snitzer had custody of the package until that day,

since the responsibility of the delivery rested with the

case agent for the DEA.

On September 12th, the package was opened with-

out a warrant and tested by Mr. Williams of the DEA

in the presence of United States Postal Inspector

Snitzer, Special Agent Robert Alston, U.S. Customs,

Special Agent James Williems, DEA, Special Agent

George Faz, DEA, and Special Agent Mike Dorsett,

DEA.

Agent Williams then applied for a search warrant

before the Honorable Allen Chancey, United States

Magistrate for the Northern District of Georgia on

the same day. The warrant was issued the same day

by Judge Chancey and the package was resealed.

6

The delay in delivering the package was accounted

for by Agent Williams because the agency lacked

manpower and had a heavy work schedule.

On the following day, September 12, 1974, DEA

Agents Dorsett and Faz entered the premises at 2311

Bank of Georgia Building, between 9:56 and 10:00

o’clock. They did not have an arrest or search warrant

on them. Nor did they identify themselves as Law

Enforcement Officers. At the time he (Dorsett) en-

tered, Mrs. Llewellyn was sitting at her desk in the

reception area. The defendant was not visible and

did not come out of his office (which he subleases from

the firm of Gower, Noland and McGuigan) until after

the package was delivered.

Agent Faz, had told the secretary that he was in

trouble and waiting for a lawyer.

Ezekiel McConnell, a letter carrier for the United

States Postal Service, was given the package on Sep-

tember 13, 1974, by Inspector Snitzer. He delivered

the package at 2311 Bank of Georgia Building and

the secretary signed for the package. Mr. Snitzer told

Mr. McConnell to get the registered mail receipt

signed by the secretary. The package was delivered

in the normal way.

Shortly after delivery defendant came out of his

office and talked to Agents Dorsett, Faz and the secre-

tary.

The package, which had been sitting on the secre-

tary’s desk for some 10 or 15 minutes, was shown to

the defendant by the secretary. The defendant glanced

at the package and returned the item to the secre-

tary. Nothing was said between the defendant and the

secretary. Henritze then returned to his office. A few

7

moments later he came back into the reception area

and told the secretary he was going to the United

States Federal District Court. He then left. The pack-

age was still on the secretary’s desk where she had

put it.

Ten to fifteen minutes after Henritze had left, the

secretary picked up the package and placed it in

what was later found to be the defendant’s office.

There it was seized by Agent Williams when he en-

tered with the search warrant. No arrest warrant had

been is.ued or executed in the case. The secretary was,

however, arrested at that time.

In the interim, the defendant had proceeded down

stairs to the lobby of the Bank of Georgia building.

He had been followed down stairs by Agent Williams.

Defendant was searched after being apprised of the

fact that a search warrant was existent. Nothing being

found on him, he left to go to the Federal District

Court.

Defendant filed a Motion to Suppress and a Motion

for a Bill of Particulars, both were heard on the day

of the trial. The Bill of Particulars was overruled,

subject to certain information being given to the de-

fendant.

The Motion to Suppress was also overruled al-

though the trial judge thought the point was sub-

stantial.

At the trial the Government’s case implicating the

defendant rested primarily on four witnesses.

The first, Ann Hester, a former secretary, testified

that she and Joyce Weldy had lunch with the defend-

ant, on August 5, 1974 at Crowley’s, in Underground

8

Atlanta, where defendant, in the middle of a general

conversation, said he was expecting some hash from

Amsterdam. She also testified that she had never re-

ceived any package from overseas while working for

the defendant for a period of five or six years. She

also testified that in the entire time they had known

each other, this was the only instance where the de-

fendant had ever mentioned this particular subject.

No mention was made where he was to receive the

hash and Mrs. Hester never mentioned it to the au-

thorities until after the delivery of the package.

Mrs. Weldy testified also to the conversation at the

restaurant. She testified that the defendant said he

was getting a shipment of ‘‘hash’’ in the next week.

She also testified that she had had lunch with the de-

fendant only once in her life.

Theresa Moore testified that the defendant came to

her office and told her he had a pound of hash coming.

She couldn’t remember the date when this happened,

and she did not report this conversation to the author-

ities until after the package was delivered. No one else

was present at this conversation and she never men-

tioned the matter again until the package arrived.

June Llewellyn testified that she worked for the

firm of Gower, Noland and McGuigan at 2311 Bank

of Georgia Building and that defendant rented space

from the firm. :

She testified that a package was delivered to her at

that address and she signed for it. The package had

a return address from Holland. Mrs. Llewellyn knew

no one from there. She said that six or eight weeks

after defendant had rented space he told her that if

she received a package addressed to her she should

9

put it on his desk. No mention was made of a foreign

package.

A package arrived in late May or early June and

the secretary put it on his desk.

On cross-examination she stated she had neither

asked the defendant about the contents of the pack-

age nor had she told anyone of its arrival. The de-

fendant never told the secretary he was expecting

another package.

No communications overseas were known to thic

secretary. The defendant did not tell the secretary to

place the package on his desk.

She also testified that the defendant’s comings and

goings were erratic with no set time when she could

predict when he would be in the office.

The Government also put up a forensic chemist

who testified that the substance was hashish, a mari-

juana derivative.

Defendant took the stand and denied making any

such statements and denied any involvement in the

importation of any drugs.

A witness, Mrs. Kay Dallinger, testified that on the

date mentioned by Hester and Weldy she was at

Crowly’s with the defendant and the following day

she was there with a friend and neither Hester nor

Weldy was present. Nor was the defendant.

REASONS FOR GRANTING THE WRIT

Since only a per curiam opinion was written in this

ease it has been necessary to set out the above testi-

mony rather more fully than usual.

10

1. While this Court has passed on the question

of venue vis-a-vis 18 U.S.C. 371 (conspiracy) Hyde

v. U.S., 225 U.S. 347 (Four Judges dissenting) (Jus-

tices Holmes, Hughes, Lurton and Lamar), and Brown

v. Elliott, 225 U.S. 392 (same dissenters), it has never

rendered a decision on this new substantive impor-

tation statute 21 U.S.C. 952(a).

The venue of smuggling prosecutions was settled by

this Court some three quarters of a century ago, in

Keck v. U.S., 170 U.S. 434 (1899). The entire court

in Keck agreed that the offense of smuggling or clan-

destinely introducing into the United States was un-

doubtedly completed when the goods arrived at the

port-of-entry, which in the present case was New

York, N. Y. Petitioner does not deny that an indict-

ment could have been returned charging him with

‘facilitating the transportation or concealment of

marijuana after being imported or brought into the

United States, knowing the same to have been im-

ported or brought in contrary to law.’’ The naked fact

is that he was not so charged.

The veuue question as to importation has already

caused a split amongst the Circuits. The Fourth (U.S.

v. Lember, 319 F. Supp. 356), and the Ninth (U.S. v.

Feldman, 366 F. Supp. 346), follow the Keck rule, i.e.

venue at the port-of-entry: The Tenth does not (U.S.

v. Jackson, 482 F.2 1167).

The conflict should be settled by this Court for a

number of reasons. Prior to 1965 the reports are vir-

tually Silent regarding illegal importation by mail.

Since then they have appeared numerous times in all

circuits. A large group is set out in U.S. v. Fel

366 F. Supp. 356. at aes

11

A settlement of this issue will not only protect de-

fendants but help law enforcement.

The Constitutional right under the Sixth Amend-

ment to have a case tried in the state and district

wherein it was committed is sure to be raised again

and again. The particular District Attorney should

have a decision from this Court eliminating doubt and

obviating the necessity of retrials.

Because of the concurrent sentence doctrine the

venue question must also be argued as to the conspiracy

convictions.

Petitioner has set out the testimony in this case at

some length primarily for this reason.

Hyde v. U.S., 225 U.S. 247, stands for the proposi-

tion that venue under the general conspiracy statute

may be had in any district where an overt act occurred

or where the agreement was made.

If the Court accepts Petitioner’s reliance on Keck,

supra, then the overt acts cause no problem. The sub-

stantive crime being complete in New York, N. Y., no

overt act after the completion can be used to give

jurisdiction to the court in the Northern District of

Georgia. Put another way, if a person conspires to

import and does import both the substantive and con-

spiracy crimes are complete at the port-of-entry and

any overt acts alleged or proved after the completion

of the offenses are surplusage. Nor can a theory of

conspiring to conceal the conspiracy be used to give

another court jurisdiction. This proposition was re-

jected in Grunewald v. U.S., 353 U.S. 391.

Therefore if venue is to depend on the conspiracy

charge it must be shown by the situs of the agreement.

12

The problem is that there is no evidence of any

agreement and there is no evidence of defendant’s

ever having committed any of the overt acts. He was

indicted with a person or persons unknown. No tele-

phone conversations or letters at the situs were ever

produced ; in fact the only evidence of his participa-

tion were statements allegedly made about expecting

‘‘hash’”’ from Holland. The agreement, if agreement

there was, could have just as well been in New York

or Amsterdam. He could just as logically have sent

the package himself from Amsterdam.

Even if it were proved that the defendant com-

mitted the overt acts this would not prove the agree-

ment.

‘The agreement in a conspiracy cannot also be an

| overt act, U.S. v. Sarno, 456 F.2 875 at 877. It is not

a question of where the agreement was made, it is a

question of whether there is any evidence to show the

existence of an agreement at all.

It must follow that since no evidence of an agree-

ment was shown to have taken place in the Northern

District, then Keck is applicable and is i

tant pp venue is in New

The Search and Seizure. Appellant will argue the

search and seizure in the order of th

sented. e questions pre-

2. The search warrant and affidavit (App. D) set

out two premises to be searched. The first, a described

box, and the second, a described suite of offices. While

there are many cases dealing with general warrants

no case has been found where this fact situation ex-

ists. Both the affidavit and the warrant itself particu-

13

larly describe a premise (the box), particularly de-

seribe the contraband in the box (marijuana), and then

state that the warrant shall be executed at 2311 Bank

of Georgia Building, Atlanta, Georgia 30303. No con-

traband is described as being on the premises of 2311

Bank of Georgia Building in direct violation of Rule

41 Fed. Rules Crim. Proce.

3 and 4. It is uncontradicted that two agents en-

tered the offices in question without announcing their

presence and without a search or arrest warrant. It

is also uncontradicted that a package addressed to Peti-

tioner’s secretary was delivered some fifteen minutes

later and after another fifteen minutes transferred to

petitioner’s sub-leased office, being placed upon his

desk. It is also uncontradicted that the office and desk

were not visible to the two waiting agents.

The first point is whether any warrant was neces-

sary to enter and search the premises or to search the

package. As to mail it is privileged Olmstead v. U.S.,

2717 U.S. 438. Not only is a person’s office protected

but also his desk. Mancusi v. DeForte, 390 U.S. 364.

Therefore, at least one or both of the premises, i.e., the

whole suite or appellant’s sub-leased office is pro-

tected. If the warrant to be executed at 2311 Bank of

Georgia Building was valid and allowed the officers

to search, then under 18 U.S.C. 3109 they had to an-

nounce their presence. Sabbath v. U.S., 391 U.S. 589.

If somehow or other the officers presence in the ante-

room (though a part of 2311 Bank of Georgia) was

permissible without a warrant and without announce-

ment then it must inexorably follow that Petitioner’s

separate office required a separate warrant for it to

be searched. Mancusi v. DeForte, 390 U.S. 364. Of

course probable cause to search, standing alone, gives

14

no right to search since in that case no warrant would

ever be necessary. Coolidge v. New Hampshire, 403

US. 443.

5. Are there any standards of any nature regard-

ing the searching of packages coming into the United

States from abroad ?

Since the founding of the Republic, Federal Cus-

toms Officers have been authorized to search without

probable cause, persons seeking entrance into the

United States from a foreign country. 1 Stat. 21, 43,

Act of July 31st, 1789. In recent years, however, fed-

eral authorities have expanded their pursuit of po-

tential customs violators by conducting and increasing

number of such searches at locations far removed

from the international boundary. Very little case law

existed as to the search by customs agents of incoming

mail from overseas prior to 1955. However, since then,

United States v. Doe, 472 F.2d 982, U.S. v. Galvez,

465 F.2d 681, U.S. yv. Beckley, 335 F.2d 86, and U.S.

v. Feldman, 366 F. Supp. 356, have come to the fore.

In Feldman, a collection of these cases is set out.

Since the first border search statute was enacted in

1789, customs officials have been authorized to stop,

search and examine any vehicle or person where they

shall suspect that there is merchandise which is sub-

ject to duty or merchandise which has been introduced

into the United States in any manner contrary to law.

19 U.S.C. Sect. 482, see Act of July 31st, 1789, ch. 5,

sec, 24, 1 Stat. 29, 43; Act of March 13th, 1815, ch. 94,

sec. 2, 3 Stat. 231, Act of J uly 18th, 1869, ch. 201, sect.

3, 14 Stat. 178.

While these words were mentioned in all of the

cases above cited, i.e., reasonably suspect, the concept

15

vanished in United States v. Odland, 502 F.2d oa

In Odland, the court cites U.S. v. McDaniel, 460 F.

129, 132, for the proposition that any person or 1

coming into the United States is subject to search y

that fact alone, whether or not there by any suspicion

of illegality directed to the particular person or em

to be searched. While the gist of this opinion, t

anyone for any reason may be searched coming across

the border is debatable, nevertheless, Odland set yo

the proposition that the government is free to PO

check incoming international mail at the port-of-

entry, or to inspect all such mail, or to inspect any

such mail which attracts the inspector’s attention.

This is being done.

In the case at bar, evidence shows that all mail com-

ing into the United States from some 20 countries be

being opened and searched. If the court upholds t -

border search it must, in essence, say that no stand-

ards whatsoever exist in border searches. The govern-

ment witness does not even contend or imply that any

standards of any sort are in use. He flatly states, that

all packages coming in from sonie 20 designated

countries are opened. We have come full circle. It is

an almost unbearable irony, that the Fourth Amend-

ment to the Constitution was primarily placed within

that constitution because of the hatred of the early

American Colonists for the searches of British Cus-

tom officials with their nctorious writs of assistance

and now, our own customs officials may search any-

thing coming into the United States without reason.

For all of the above reasons Henritze would re-

i tion to

tfully ask that the order denying the mo

cuanaen reversed and that the case be reversed

for further proceedings pursuant to that order.

16

Insufficiency of the Evidence.

6. In order to convict any defendant under the

smuggling and the general conspiracy statutes, the

government must prove knowledge, agreement and

intent. Three witnesses testified that some thirty days

before delivery, Petitioner told them he was expect-

ing a shipment of hash from Holland. He did not say

it was coming to him personally or to his office or

anything else.

There must be an agreement, Luteran v. U.S., 93

F.2d 395 at 399, to uphold a conspiracy count. The

record is simply nonexistent as to any agreement. The

overt acts mentioned in this indictment (the mailing,

ete.) cannot be used as the basis of an agreement.

U.S. vy. Sarno, 456 F.2d 875 at 877.

Proof of the corpus delicti is not proof of any de-

fendant’s guilt. While it is necessary to prove the

corpus delicti, i.e, smuggling and conspiracy, it is

essential to prove the defendant’s participation in the

chain of events. That a package containing contra-

band was mailed in Holland and delivered to the ad-

dressee (Appellant’s secretary) in Atlanta proves the

corpus delicti of the substantive crime not Henritze’s

participation nor can it be used as a basis of the agree-

ment in a conspiracy charge, Luteran v. U.S., 93 F.

2d 395.

There was no proof that the defendant committed

any of the overt acts alleged in the indictment which

is absolutely essential for conviction. U.S. v. Sarno,

456 F.2d 875 at 877.

The government must also prove intent as to the

substantive crime. The statements allegedly made by

17

the defendant may show knowledge or intent, they

cannot show both.

The evidence is all circumstantial. In a circum-

stantial evidence case one inference cannot be

founded upon another to sustain a conviction. Byrth

v. U.S., 327 F.2d 917. From Petitioner’s statements,

one may infer knowledge or intent but the jury can-

not infer one and then bootstrap the second inference

upon the other.

CONCLUSION

For the above and foregoing reasons, it is respect-

fully submitted that the Petition for-a Writ of Cer-

tiorari should be granted.

WituiaM R. Gientuat, IIT

Attorney for Petitioner

929 Healey Building

Atlanta, Georgia 30303

(404) 524-7714

APPENDIX A

Opinion of the Court of Appeals

la

APPENDIX A

In tHe Untrep States Court or APPEALS

For tHe Fierrs Cracuir

No. 75-1963

Unrtep States or America, Plaintiff-Appellee,

versus

Watters M. Hewnirze, Jr., Defendant-Appellant.

APPEAL FROM THE Unitep States District Court

FOR THE NorkTHERN District or GEoRGIA

(October 21, 1975)

Before Bett, THornserry and Morean, Circuit Judges.

Per Curiam:

Walter M. Henritze appeals from his conviction under

18 U.S.C. $371 and 21 U.S.C. §§ 812, 952(a) for con-

spiracy to import hashish and importation of hashish.

Alleging several points of error, appellant argues (1)

that venue was improper in the Northern District of

Georgia, (2) that conviction on both the substantive and

conspiracy counts constitutes double jeopardy, (3) that

the three searches conducted by the government violated

the Fourth Amendment and should have been suppressed,

(4) that inflammatory remarks delivered by the prosecu-

tor in his closing argument deprived appellant of a fair

trial, and (5) that the evidence was insufficient to support

a verdict of guilty.

After lengthy consideration of the briefs, record, and

oral argument in this case, this court is of the opinion

that the numerous points of error raised are without

merit and that appellant’s conviction should be affirmed.

AFFIRMED.

2a

Unttep States Court or APPEALS

For tHe Firrx Crecvit

October Term, 1975

No. 75-1963.

D.C. Docket No. CR 74-470-A

Untrep States or America, Plaintiff-A ppellee,

versus

Water M. Hewnirtze, Jr., Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Georgia

Before Bett, THornBerry and Morcan, Circuit Judges.

Judgment

This case came on to be heard on the transcript of

the record from the United States District Court for

the Northern District of Georgia, and was argued by

counsel ;

On ConsmperaTIon Wuereor, It is now here ordered

and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is

hereby, affirmed. .

October 21, 1975

Issued as Mandate:

ahh CNA Ee OO ell

APPENDIX B

Denial of Motion for Rehearing

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APPENDIX B

—

Unrrep States Court or APPEALS

Firtx Crecvuit

OFFICE OF THE CLERK

November 28, 1975

To Att CounseL or Recorp

No. 75-1963—U.S.A. vs. Wlater M. Henritze, Jr.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing, and no

member of the panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en bane (Rule 35, Federal Rules of Ap-

pellate Procedure; Local Fifth Circuit Rule 12) the

petition( ) for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

Epwarp W. WapswortH, Clerk

by Susan M. Gravois

Deputy Clerk

/smg

ec: Mr. William R. Gignilliat, IIT

Mr. Steven W. Ludwick

APPENDIX C

Stay of Mandate

fa

APPENDIX C

[Filed: December 8, 1975]

Unrrep States Court or APPEALS

For tHe Firtxs Circuit

No. 75-1963

Unrrep Srates or America, Plaintiff-A ppellee,

versus

Water M. Hewnirze, Jr., Defendant-A ppellant.

On CoNnsIDERATION OF THE AppLicaTion of the appellant

in the above numbered and entitled cause for a stay of

the mandate of this Court therein, to enable appellant

to apply for and to obtain a writ of certiorari frem the

Supreme Court of the United States. Ir Is Orperep that

the issuance of the mandate of this Court in said cause

be, and the same is stayed to and including December

28, 1975, the stay to continue in force until the final

disposition of the case by the Supreme Court, provided

that within the period above mentioned there shall be

filed with the Clerk of this Court the certificate of the

Clerk of the Supreme Court that certiorari petition has

been filed. Ir Is FurrHer Orperep that the Clerk shall

issue the mandate upon the filing of a copy of an order

of the Supreme Court denying the writ, or upon the

expiration of the stay granted herein, unless the above

mentioned certificate shall be filed with the Clerk of this

Court within that time.

/s/ R. Morean

R. Morgan

United States Circuit Judge

APPENDIX D

Search Warrant

5a

APPENDIX D

Untitep States District Court

FOR THE

NortTHERN District or GEORGIA

Magistrate’s Docket No. M 74

Case No. 1230 A

SEARCH WARRANT

United States of America

vs.

One brown wrapped cardboard box having approximate

dimensions of 12” x 914” x 5”, having a gross weight of

2 Ibs. 3 ozs. addressed to June Llewelyn, 2311 Bank of

Georgia Building, Atlanta, Georgia, U.S.A., 30303, bearing

return address of S. T. Van Heusn, 36 Louis Davidstraat,

Zandvoort, Netherlands

To James Williams, Special Agent, Drug Enforcement

Administration, and/or any other Special Agents of the

Drug Enforcement Adm. Affidavit having been made be-

fore me by Special Agent James Williams, Drug Enforce-

ment Administration that he is positive’ that on the

premises know as one brown wrapped cardboard box

having approximate dimensions of 12” x 914” x 5”, having

a gross weight of 2 lbs. 3 ozs. addressed to June Llewelyn,

2311 Bank of Georgia Building, Atlanta, Georgia, U.S.A.

30303, bearing return address 8S. T. Van Heusn, 36 Louis

Davidstraat, Zandvoort, Netherlands, bearing a customs

declaration describing the contents of the box as ‘‘1 box

of Dutch chocolates,’’ which arrived in Atlanta, Georgia

6a

from New York, N.Y. on August 19, 1974, and is sched-

uled to be delivered to the addressee on September 13,

1974 in the Northern District of Georgia there is now

being concealed certain property, namely approximately

15 ozs. of hashish, a Schedule 1 controlled substance as

defined in 21 U.S.C. 812 and a contraband item.

which are hashish, a Schedule 1 controlled substance as

defined in 21 USC 812 and a contraband item.

and as I am satisfied that there is probable cause to

believe that the property so described is being concealed

on the premises above described and that the foregoing

grounds for application for issuance of the search warrant

exist.

You are hereby commanded to search forthwith the

place named for the porperty specified, serving this war-

rant and making the search in the daytime and if the

property be found there to seize it, leaving a copy of

this warrant and a receipt for the property taken, and

prepare a written inventory of the property seized and

return this warrant and bring the property before me

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

search warrant must be executed between the hours of

8 am. & 12 noon 9/13/74 at 2311 Bank of Ga. Bldg.,

Atlanta, Ga. 30303.

Dated this 12th day of September, 1974 at —— p.m.

Auten L. Cuancey, Jr., U.S. Magistrate

Appendix ‘‘B”’

7a

Appendix ‘‘B”’

Unitep States District Court

FOR THE

NorTHEERN District or GEORGIA

Magistrate’s Docket No. M 74

Case No. 1230 A

AFFIDAVIT FOR SEARCH WARRANT

United States of America

vs.

One brown wrapped cardboard box having approximate

dimensions of 12” x 914” x 5”, having a gross weight of

2 lbs. 3 ozs., addressed to June Llewelyn, 2311 Bank of

Georgia Bldg., Atlanta, Ga., U.S.A. 30303, bearing return

address of S. T. Van Heusn, 36 Louis Davidstraat,

Zandvoort, Netherlands.

Berore Auten L. Cuancey, Jr., Atlanta, Georgia

The undersigned being duly sworn deposes and says:

That he is positive’ that on the premises known as

one brown wrapped cardboard box having approximate

dimensions of 12” x 914” x 5”, having a gross weight of

2 lbs. 3 ozs., addressed to June Llewelyn, 2311 Bank of

Georgia Bldg., Atlanta, Ga., U.S.A. 30303, bearing return

address of S. T. Van Heusn, 36 Louis Davidstraat,

Zandvoort, Netherlands, bearing a customs declaration

describing the contents of the box as ‘‘1 box of Dutch

chocolates’’, which arrived in Atlanta, Ga., from New

York, N.Y. on 8/19/74, and is scheduled to be delivered

to the addressee on 9/13/74,

8a

in the Northern District of Georgia

there is now being concealed property, namely approxi-

mately 15 ounces of hashish,

which are hashish, a Schedule I controlled substance as

defined in 21 U.S.C. 812, and a contraband item.

And that the facts tending to establish the foregoing

grounds for issuance of a Search Warrant are as follows:

On 8/19/74, Postal Inspector Schnetzer received the above

described box from New York, N.Y., with information

which stated that the box contained approximately 15

ounces of hashish, a controlled substance. The contents

of the box had been previously field tested and showed

a positive reaction for hashish in New York. On 9/12/74,

the above described box was opened in the office of U.S.

Postal Inspector Schnetzer in the presence of SA Robert

Alston, U.S. Customs, Postal Inspector Schnetzer, SA

James Williams, DEA, SA George Faz, DEA, and SA

Mike Dorsett, DEA. On 9/12/74, a field test for hashish

was conducted on the contents of the above described

box in the Office of Postal Inspector Schnetzer. The test

results were positive for the presence of hashish in the

contents of the box. After the test was concluded, the

contents of the above described box were weighed, and the

box was re-sealed by SA Williams and SA Alston. The

above described box is scheduled for delivery to 2311

Bank of Georgia Bldg., Atlanta, Ga., on 9/13/74.

James WILLIAMS

Drug Enforcement Administration

Sworn to before me, and subscribed in my presence,

September 12, 1974

Appendix ‘‘A’’