Petition — Pickette v. United States

—

Supreme Court, U. &

- FiLED

JAN 29 1976

MICHAEL RODAK, JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1975

no. €9°1074

TOM PICKETTE,

Petitioner,

_

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Armand Salese

Solicitor General HAYES AND SALESE

Department of Justice 304 Transamerica Building

Washington, D.C. 20530 Tucson, Arizona 85701

Attorney for Attorney for

Respondent Petitioner

TABLE OF CONTENTS

DPEMEGNS BOSOW 2. occ ccscecveccesensen

Roe gt rere ee ee ee a ee

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

Constitutional and Statutory

Provisions Involved .............

Statement of Facts and

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

Basis for Federal Jurisdiction

in the Court of First Instance

Reasons for Granting the Writ:

ARGUMENT I

THE ORDER OF REMOVAL FROM THE

DISTRICT OF ARIZONA WAS ERRONEOUS

AND VENUE WAS LACKING IN THE

SOUTHERN DISTRICT OF WEST

VRREEEME Ss ccecceeeeeeereresovces

ARGUMENT II

THE COURT'S FAILURE TO SUPPRESS

EVIDENCE OBTAINED WITHOUT A

SEARCH WARRANT WAS PREJUDICIAL

ESS TT TTT TT SETTLE ETT

ARGUMENT III

THE ADMISSION OF TESTIMONY

CONCERNING PURPORTED COCAINE

TRANSACTIONS WAS PREJUDICIAL

DS 6. 6 ce kbd eed enndésedas bee 8 6kas

11

Page

ARGUMENT IV

THE EVIDENCE WAS INSUFFICIENT

TO SUSTAIN PETITIONER'S

a ae PR ee een rE 43

I re ae ee ee 45

Appendix [Opinions and Judgments

of the Courts below] .........e.-. 46

ny ON a a ae % 55

oft<

District Court for the Southern District

IN THE of West Virginia on February 7, 1975.

SUPREME COURT OF THE UNITED STATES OPINIONS BELOW

Oct

ctober Term 1975 The opinion of the Fourth

No.

Circuit is reported at F.2d _

TOM P

ICKETTE, (4th Cir. 1975), a copy of which is

Petitioner, attached as Appendix hereto. A Petition

-V- ‘ ° ° 1

for Review was not filed with the Court

UNITED STATES OF AMERICA, of Appeals

Respondent.

JURISDICTION

PETITION FOR WRIT OF CERTIORARI The Judgment of the United

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT States Court of Appeals for the Fourth

Circuit was entered on December 1, 1975,

The Petitioner, Tom Pickette, and a Motion for Rehearing was neither

prays that a Writ of Certiorari be issued made nor entertained. An Order Extending

to review the Judgment of the United Time to File Petition for Writ of

States Court of Appeals for the Fourth Certiorari was made by Chief Justice

Circuit entered on December 1, 1975, Warren E. Burger on December 30, 1975.

affirming a Final Judgment and Order of Therefore, the jurisdiction of this

Conviction entered by the United States Court is timely envoked pursuant to

28 U.S.C. §1254 (1), which authorizes

atic

ote

review by Writ of Certiorari before or

after a Final Judgment or Decree in cases

which are in the United States Court of

Appeals.

QUESTIONS PRESENTED

1. Did the Order removing

Petitioner from the District of Arizona

to face Trial in the Southern District

of West Virginia confer proper Venue

upon the latter District?

2. Did the Trial Court err by

failing to suppress prejudicial evidence

obtained in violation of Petitioner's

rights to be free from illegal searches

and seizures?

3. Did the Trial Court err by

failing to exclude prejudicial testimony

regarding Petitioner's alleged prior

involvement in crimes other than those

for which he was currently charged?

4. Was the evidence sufficient

a%

to support Petitioner's conviction for

conspiring to import and distribute

quantities of marijuana?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, Section 2, Clause

3, and the Fourth, Fifth and Sixth

Amendments to the United States

Constitution are involved.

The United States Statutes

and Rules involved are contained in

Title 18 U.S.C. §1952 and Rules 18 and 40

of the Federal Rules of Criminal Procedure.

Verbatim copies of the Constitu-

tional provisions, statutes and rules

referred to above appear in the Appendix

to this Petition.

STATEMENT OF FACTS AND

Tom Pickette, a numerously

decorated veteran of the United States

Army, was a resident of the State of

elie

Arizona until the time of his arrest.

On the afternoon of September 26, 1974,

Arizona agents of the Drug Enforcement

Administration were telephonically

notified of an outstanding warrant for

the arrest of Pickette which stemmed from

a lengthy grand jury Indictment handed

down in the Southern District of West

Virginia. The Indictment, framed in

seventeen counts, alleged the existence

of a conspiracy to import large quantities

of marijuana from Mexico for transporta-

tion, distribution and sale from Arizona

to West Virginia and Virginia. Tom

Pickette, to reflect his involvement in

the conspiracy, was charged as an

importer and seller. The Indictment

further implicated Pickette by two

substantive counts of aiding, abetting

and causing travel in interstate commerce

between Kanawha County, West Virginia and

Arizona on two separate occasions and in

ofie

connection with an unlawful controlled

substance business enterprise. Therefore,

of the seventeen separate charges, Tom

Pickette was named in only three counts.

Armed with this afternoon know-

ledge, three Drug Enforcement Administra-

tion agents dressed in casual pants and

knit shirts waited over four hours before

arriving at the apartment that presumably

housed the Petitioner. It was then after

dark. Agent William Hare knocked on the

door and inquired of a man unknown to

him whether Mr. Pickette was at home.

The agent did not identify himself at that

time. The male who answered the door,

subsequently identified as Pickette, left

the screened doorway and another figure,

identified as Arizona resident and

co-Defendant Desisto, appeared momentarily

allegedly holding a pistol. Tom Pickette

was neither armed nor alleged to have

been brandishing a weapon at any time

olie

during the arrest. Agent Hare jumped from

the doorway, drew his automatic pistol

and identified himself, whereupon the

front door was closed rapidly. The agents

radioed for reenforcements and upon their

arrival, broke through the front door.

As the agents entered, the Petitioner and

Desisto fled out the back door, and both

were subsequently arrested and handcuffed

in the back yard.

| Following this arrest outside

the house, Desisto and Pickette were

taken back into the apartment, searched

and Desisto was questioned upon the

location of the weapon. A gun was found

in the roof area, through a skylight in

the kitchen, and was obtained by standing

on the kitchen sink, reaching on top of

the roof. It was uncertain as to whether

this weapon was the same as that displayed

earlier in front of Agent Hare. Neverthe-

less, the Trial Court denied the weapon's

Pe

suppression and admitted it as a part of

the Government's case over Petitioner's

objections.

Following his arrest on October

11, 1974, Pickette appeared before a

Federal Magistrate in Arizona for a Rule

40 Removal Hearing. -The sole witness for

the Government was one Terry Fink who

stated that he believed that the Petitioner

was the same person named in Indictment

No. 74-124-CH as that person he met in

Arizona solely because the names were the

same. Fink did not testify with regard

to Pickette, his identity or name, before

the grand jury in Charleston. Indeed, Fink

never met Pickette outside of Arizona.

These facts, coupled with a copy of the

West Virginia Indictment, were deemed by

the Arizona Magistrate to be sufficient

to recommend to the District Judge that

a warrant of removal be issued.

Pickette did not testify at his

-8-

Trial and, with one exception, other

indicted and unindicted co-conspirators

testified as to the details of their

Virginia and West Virginia operations and

to the details of their travel to various

parts of the United States to obtain

marijuana for distribution and sale in

the East. It should be noted that at

no time did Tom Pickette leave the State

of Arizona. All travel between Virginia,

West Virginia and Arizona was carried on

by the self-admitted conspirators residing

in Virginia and West Virginia by traveling

to or arranging travel to areas as far

separated as Florida, Michigan and Arizona.

Indicted and admitted organizer

and conspirator, Johnson, testified that

his partner and co-Defendant, Thomas,

came back from Arizona on one occasion

with some cocaine and that Thomas said

his source was Pickette. Another admitted

participant in the Virginia-West Virginia

ae

conspiracy said that unindicted co-

conspirator, Terry Fink, had told him

that Pickett, Desisto and Fink got together

and bought °n ounce of cocaine and split

it up. Yet another admitted participant

in the Eastern conspiracy said he purchased

cocaine from a Mexican in the apartment of

Pickette and Desisto. And still anot.er

admitted, but unindicted, participant,

Terry Fink, said that he purchased,

alone, cocaine in Pickett's apartment.

This compounded testimony concerning prior

unindicted acts was admitted into evidence

despite strenuous objection by the

Petitioner. Following the denial of

post Trial Motions, the District Court

sentenced Pickette on March 31 and April

1, 1975. Notice of Appeal to the United

States Court of Appeals for the Fourth

Circuit was filed on April 1, 1975. The

Fourth Circuit Appellate Court then

affirmed the decisions of the Trial

ote

Court on December 1, 1975, whereupon,

after the granting by Justice Warren E.

Burger of an extension of time within

which to file a Petition for Writ of

Certiorari on December 30, 1975,

Petitioner thereafter files this Petition

for Writ of Certiorari to the Fourth

Circuit Court of Appeals.

BASIS FOR FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE

This case was brought into the

United States District Court for the

Southern District of West Virginia by

virtue of its original jurisdiction to

preside over such matters charged by

Federal Indictment as crimes against the

United States and specifically proscribed

by Title 21 U.S.C. §841 et. seq. and Title

18 U.S.C. §1952 (a) (3) and 2.

ute

REASONS FOR GRANTING THE WRIT

ARGUMENT I

THE ORDER OF REMOVAL FROM THE

DISTRICT OF ARIZONA WAS ERRONEOUS

AND VENUE WAS LACKING IN THE

SOUTHERN DISTRICT OF WEST VIRGINIA

Tom Pickette was indicted by the

grand jury of the Southern District of

West Virginia, and Tom Pickett, a resident

of Arizona, was arrested in Tucson, Arizona,

pursuant to that Indictment. A Removal

Hearing was held on October 11, 1974,

before a United States Magistrate and the

only witness for the United States was

Terry S. Fink, who identified Pickett,

but who was unable to say that Tom Pickett

was the same Tom Pickette named in the

Indictment in the Southern District of

West Virginia.

Rule 40, Federal Rules of

Criminal Procedure, provides a Defendant

must be identified as the person named in

the Indictment before a warrant of removal

ot Ho

issues. The mere fact that the name of

a Defendant corresponds to the name

recited in the Indictment is not sufficient

to justify the order of removal. In

Mathues v. United States ex rel Shwartz,

19 F.2d 7 (3d Cir. 1927), it was noted

‘that the Defendant must be identified as

the party the grand jury had in mind when

the Indictment was handed down. In that

case, the witness testifying at the

Removal Hearing as to the identity of the

Defendant had not testified before the

grand jury and, therefore, could not

identify the Defendant as the party named

in the Indictment. Removal was denied on

the ground that the identity of the Defen-

dant was not sufficiently established.

Similarly, in Duffy v. Keville, 16 F.2d

828 (D. Mass 1926), it was found that the

Defendant was not sufficiently described

in the Indictment or identified at the

Removal Hearing to establish her identity

3%.

as the party named in the Indictment.

In that case, the party named in the

Indictment was given a fictitious first

name and there was no address listed. In

the instant case, Tom Pickette is identi-

fied by name only, and there was no

testimony at the Removal Hearing establish-

ing that Tom Pickett is the Tom Pickette

named in the grand jury indictment. Given

the uncertainty of the only witness to

appear at the Removal Hearing, it was not

established that Tom Pickett was the same

Tom Pickette named in the Indictment and

both the order for his removal and warrant

issued pursuant thereto should have been

set aside.

Venue may be, and was, challenged

in this removal proceeding in spite of the

fact that Rule 40 appears on its fact to

require only identification of the Defen-

dant and certification of the Indictment

to justify removal. In view of the

«the

constitutional right of a Federal

Criminal Defendant to be tried in the

State and District in which the alleged

crime was committed, removal to a District

where venue is clearly absent may be

denied on the ground that the Courts of

the latter do not have the power to

decide the case. This point was

considered in United States v. Winston,

267 F.Supp. 555 (S.D.N.Y. 1967), wherein

a removal was challenged on the ground

that no crime had been committed by the

Defendant within the District of Nebraska,

the District to which removal was sought.

In that case, the Defendant was charged

with transmitting wagering information

from New York to Nebraska, and the Court

held that removal would be granted where

there was uncertainty in the law as to

whether the crime had been committed in

Nebraska or New York, or both. In reach-

ing its decision, however, the Court set

={ =

down a standard for testing venue in a

Removal Hearing. Noting first that the

Judge in a Removal proceeding performs

a judicial act, the Court declared that

the Judge before whom the Removal pro-

ceeding is brought "has no authority to

order the removal of a Defendant to another

District Court where the Indictment clearly

shows, on its face, that no crime was

committed in the District to which removal

is sought." Id. at 560.

Article III, Section 2, Clause

3 of the United States Constitution

provides, in pertinent part, that "[t]he

Trial of all Crimes ... shall be held

in the State where the said Crimes shall

have been committed This guarantee

is reiterated in the Sixth Amendment to

the United States Constitution which pro-

vides, in part:

“In all criminal prose-

cutions the accused shall

enjoy the right to a speedy

-16-

and public trial, by the

impartial jury of the State

and district wherein the

crime shall have been

committed, which district

shall have been previously

ascertained by law

Rule 18 of the Federal Rules of

Criminal Procedure echoes the Constitution:

"Except as otherwise per-

mitted by statute or by

these rules, the prosecution

shall be had in a district

in which the offense was com-

mitted. The court shall fix

the place of trial within the

district with due regard to

the convenience of the defen-

dant and the witnesses."

Tom Pickette was named in three

counts of the Indictment in question, and

it is clear from the face of the Indict-

ment that he was not charged with commit-

ting any crime within the Southern District

of West Virginia either under Sections of

the United States Code cited in the

Indictment cr otherwise.

As a general matter, venue in a

conspiracy case may be laid in any district

in which the Defendants conspired or

where any overt act occurred. Finlev v.

mr ee ee

~~ eee ste

United States, 271 F.2d 777 (5th Cir. 1959).

But, it is also true that in order to be

considered a part of a conspiracy a

Defendant must have some joint objective

with his alleged co-conspirators.

There must be a specific con-

federation or combination of minds, for

the mere association and activity with a

conspirator is not sufficient to sustain

a conviction. United States v. Basurto.

497 F.2d 781 (9th Cir. 1974).

For example, in United States

v. Ford, 324 F.2d 950 (7th Cir. 1963)

Defendant's only act in furtherance of an

alleged conspiracy was the purchase of

jewelry which he evidently knew was stolen.

The Court held that the mere purchase of

contraband did not make the Defendant a

co-conspirator. In important language,

the Court, id. at 952, reasoned:

-12-

crime necessarily involves

cooperation of two persons

have in f

may not be convicted o

“vs

- ta

"The relationship of a

buyer and seller absent any

prior or contemporaneous

understanding beyond the

mere sales agreement does

not prove a conspiracy to

sell, receive, barter or

dispose of stolen property

although both parties know

of the stolen character of

the goods. In such circunm-

stance the buyer's purpose

is to buy; the seller's pur-

pose is to sell. There is

no joint objective."

Judge Learned Hand, in United

Zeuli, 137 F.2d 845 (2nd Cir.

1943), mandated the

doctrine that if the

the mutual

and if they

t committed the crime, they

conspiring to

commit such crime. This principle was

further e3

7 - ’ >

c(poused where one Defendant s

delivery of cocaine to another was held

to be insufficient to support the in-

ference of knowledge of a broader con-

spiracy on the part of the two Defendants.

United | Ste

— hn

ites v. Sperling, 506 F.2d 1323

si@e

(2nd Cir. 1974). See also Gebardi v.

United States

287 U.S. 112, 122 (1932);

United States v. Katz

271 U.S. 354, 355

(1926).

In the instant case, there is

neither anything in Indictment nor any-

thing in evidence indicating Pickett's

relationship to the confessed co-

conspirators was anything other than that

of casual acquaintance or, for argument's

sake and at most, that of buyer and seller

In United States v. Koch, 113 F.2d 982

983 (2d Cir. 1940), a case in which

conspiracy was alleged upon the basis of

Defendant's purchase of illegal drugs

the Court said:

The purchase of the

cocaine from Mauro was not

enough to prove a conspir-

acy in which Mauro and the

appellant participated.

They had no agreement to

advance any joint interest.

The appellant bought at a

stated price and was under

no obligation to Mauro

except to pay him that price.

o26-

The purchase alone was

insufficient to prove

the appellant a conspira-

tor with Mauro and those

who were his co-conspira-

tors."

The principle that a conspirator

must have a joint interest with his co+

conspirators has been stated alternatively

in United States v. Dire, 159 F.2d 818

(2nd Cir. 1947), affirmed, 332 U.S. 581.

There, the Second Circuit, in discussing

a case involving a conspiracy to deal in

counterfeit gasoline coupons, established

the following criteria for determining

whether or not a Defendant is a partici-

pant in a conspiracy. The Court stated,

id. at 819:

"We have several times

had occasion to consider

what relationship to a

conspiracy makes a man a

confederate, and what

relationship to the prin-

ciples in a crime makes

aman an abettor; and we

have uniformly held that

the prosecution must prove

the accused to have associ-

ated himself with the

~21-

principles in the sense

that he has a stake in

the success of the venture.

When the Supreme Court

affirmed in United States

v. Falcone, T311l U.S. 205,

61 S.Ct. 204, 85 L.Ed. 128],

it held that the sale of

material to those who the

seller knows will use it

to commit a crime does not

make the seller a party to

a conspiracy of the buyers.

a

In the present case, it is

rT?

alleged that Tom Pickette sold quantities

of marijuana to persons who subsequently

transported the marijuana to West Virginia.

However, assuming arguendo there was a

sale, neither the Indictment nor the

evidence manifests any interest that the

Petitioner could have had in the success

of any ventures which took place after

the supposed sale. Again, neither

association with conspirators nor know-

ledge that something illegal is going on

by themselves constitute proof of parti-

cipation in a conspiracy." United States

v. Webb, 359 F.2d 558, 562 (6th Cir.),

2%

cert. den., 385 U.S. 824 (1966). Accord, importance, then, to define the word

United States v. Falcone, supra; Diaz-

"uses" as it appears in 18 U.S.C. §1952.

Rosenado v. United States, 364 F.2d 941

Case law gives it a simple definition.

(Sth Cir. 1966); cf. United States v.

In United States v. Miller, 379 F.2d 483

Kelton, 446 F.2d 669 (8th Cir. 1971).

(7th Cir.), cert. den. 389 U.S. 930 (1967),

These cases provide a further bench from the Court stated that the term

which Petitioner contends that venue did "is to be given its

ordinary meaning and

means to carry out a

purpose or action by

means of; make instru-

mental to an end or

process; apply to

advantage; and is

synonymous with employ,

utilize, apply and

avail."

not lie with regard to the charges of

aiding and abetting.

The use of interstate transpor-

tation in the aid of racketeering enter-

prises is prohibited by 165 U.S.C. §1952.

That statute specifically prohibits This definition certainly is not consis-

travel in interstate commerce in order to tent with the acts alleged to have been

aid any unlawful activity. Neither the committed by Tom Pickette in the case at

Indictment nor the evidence disclose that bar.

; rat? ; > = ie ie pa) +7 4 + . Pc tf -D AOI = e °

Pickette ever traveled in interstate com Dire and Webb, supra, again

merce in furtherance of this goal. There- supply further language which bears upon

fara Tne >. ‘harcees a. } “ne : M

fore, these charges rest upon the this particular statute. The use of a

allegation that he used some facility of facility of interstate commerce clearly

interstate commerce to further his purported requires a continuous interest on the

illegal goal. It becomes of primary part of the Defendant in the success of

-23- Phe

the alleged venture. The Court in United

States v. Lane, 514 F.2d 22, 26-27 (9th

Cir. 1975) quoted strong precedent of old:

"

, In order to aid and

abett another to commit a

crime, it is necessary that

a defendant ‘in some sort

associate himself with the

venture, that he partici-

pate in it as in something

he wishes to bring about

that he seek by his action

to make it succeed.’ L. Hand,

J. in United States v. Peoni,

100 F.2d 401, 402 (2nd Cir.).

Nye & Nissen v. United States,

336 U.S. 613, 619 (1949)."

[emphasis added].

A Defendant must take some

affirmative action in causing a facility

of interstate commerce to be used in order

to be subject to the sanctions of Section

1952. United States v. Hedge, 462 F.2d

220 (5th Cir. 1972); United States v.

Cianchetti, 315 F.2d 584 (2nd Cir. 1963).

See also United States v. Johnson, 513 F.

2d 819 (2nd Cir. 1975); United States v.

Cirillo, 499 F.2d 872 (2nd Cir. 1974);

United States v. Mallory, 460 F.2d 243

= 25.

(10th Cir.), cert. den., 409 U.S. 870

(1972); United States v. Harris, 441 F.2d

1333 (10th Cir. 1972).

In the present set of circum-

stances, Pickett is not charged with having

taken any affirmative action other than

the sale of contraband. This fact in no

way can be said to cause the use of an

interstate facility for the transportation

of contraband. His interest in the

venture terminated as of the date of the

alleged sale. There being no conduct of

Petitioner amounting to either a

conspirator or an aider and abettor, venue

was lacking in West Virginia and removal

should have been disallowed.

Lastly, the fact that the

Petitioner ultimately went to Trial in the

Southern District of West Virginia, cannot

be construed as amounting to a waiver of

the issue of venue. Submission under a

warrant of compulsion and transfer by

~26-

United States Marshalls can hardly be

equated with the type of conduct necessary

for the voluntary relinquishment of a right

such as is due in this context. By

contesting removal itself, the Petitioner

entered his objection to the acquisition

by West Virginia of jurisdiction over his

person. Such contest should automatically

transfer with the person to the transferee

jurisdiction. By a Motion to Dismiss the

Petitioner contested the fact of probable

cause for believing him guilty of a crime.

This element is also a part and parcel of

the criteria for removal. Therefore, if

Petitioner wished to challenge his Indict-

mentm and thereby his removal, he had to

submit to the transferee jurisdiction.

But if such action amounts to a waiver of

improper venue, then there is no way he

could attack the fact of illegal removal,

for the transferor jurisdiction cannot

quash an Indictment and grant a dismissal,

-2?7-

United States v. Green, 499 F.2d 538

(D.C. Cir. 1974), nor is a removal warrant

appealable or reviewable in the district

where Petitioner was arrested. United

States v. McCray, 458 F.2d 389 (9th Cir.

1972); United States v. Woodring, 446 F.2d

733 (10th Cir. 1971); United States v.

Perkins, 433 F.2d 1182 (D.C. Cir. 1970);

United States v. Sherriffs, 64 F.R.D. 729

(E.D. Wis. 1974); United States v.

Richardson, 57 F.R.D. 196 (E.D.N.Y. 1972).

Such is the compounded dilemma produced by

the contradicting policies inherent in

Rule 40 of the Federal Rules of Criminal

Procedure. Petitioner's Motion to Dismiss

the Indictment in the present case was

denied. The waiver of venue may not

then stand upon the stringy ground of

whether he verbally plead not guilty to

the charge or else stood mute and had such

a plea entered on his behalf. Petitioner's

course of conduct manifested his desire

-28-

not to submit to the improper venue around

which the Trial revolved.

ARGUMENT II

THE COURT'S FAILURE TO SUPPRESS

EVIDENCE OBTAINED WITHOUT A

SEARCH WARRANT WAS PREJUDICIAL ERROR

In the present case, Pickette

was arrested in the patio or back yard of

a house. The entire house was searched

and a gun was finally located and retrieved

by an agent who stood on a sink, lifted

a ceiling light cover or unit and reached

onto the roof area of the house. It must

be noted at the outset that Pickett's

capture was effectuated pursuant to an

"arrest" warrant and that the agents were

not simultaneously armed with a judicially

approved warrant to conduct a search of

the premises. Then, for the weapon to be

admitted into evidence, it must necessar-

ily enter through one of the narrow and

well-defined exceptions to the requirement

o29~

that a warrant must be obtained for a

constitutionally permissive search of a

dwelling. As was stated by this Court in

Katz v. United States, 389 U.S. 347, 357

(1967) :

"[S]earches conducted out-

side the judicial process,

without prior approval by

judge or magistrate, are

per say, unreasonable

under the Fourth Amendment

--subject only to a few

specifically established

and well-delineated

exceptions."

The burden rests upon the Government to

show the existence of such an exceptional

situation. Chimel v. California, 395 U.S.

752 (1969). In the absence of such a

showing, the evidence so obtained must

constitutionally be excluded from reception

as violative of the Fourth Amendment to

the United States Constitution. Petitioner

contends that his right to be secure from

unreasonable searches and seizures was

intruded upon in the instant case.

= %-

There was no consent to search.

The doctrine of “hot pursuit," Warden v.

Hayden, 387 U.S. 294 (1967), is inappli-

cable for there was no "fleeing felon" to

be arrested. Petitioner was already in

custody by the time the search commenced.

The only rationale upon which the Govern-

ment could predicate an argument to

substantiate the conduct of its agents

here is by contending that the search was

lawful as incident to a valid arrest. But

such a notion is as brittle as a dry leaf.

This Court has developed the per-

missable scope of a search incident to an

arrest through cases such as Chimel v.

California, supra, and Vale v. Louisiana,

399 U.S. 30 (1970). Chimel limited this

scope to the area from within which a

person might gain possession of a weapon

or destructible evidence. And even as the

Supreme Court of the United States was

sculpting this landmark decision, it

—

interpreted its position that same term in

another case similar to the one at hand.

In Shipley v. California, 395 U.S. 818

(1969), the Defendant was arrested as he

alighted from his car. Both he and the

automobile were searched. The police then

entered his home for the purpose of con-

ducting a warrantless search. The Shipley

Court, id. at $20, stated that

". . . the Constitution

has never been construed

by this Court to allow

the police, in the absence

of an emergency, to arrest

a person outside his home

and then take him inside

for the purpose of conducting

a warrantless earch. On the

contrary, it has always been

assumed that one's house

cannot lawfu ly be searched

without a search warrant

except as incident to law-

ful arrest therein.

See also James v. Louisiana, 382 U.S. 36

(1965). Even when a search incident to

arrest is permitted inside a dwelling, it

must be carefully limited. Chimel v.

California, 395 U.S. 752 (1969).

= %2-

In Vale v. Louisiana, 399 U.S.

30 (1970), officers arrested Vale on the

front steps of his home after he had

sought to escape arrest by hurriedly

entering the house. The officers informed

Vale that they were going to search his

house, and thereupon advised him of his

constitutional rights. Narcotics were

found in a rear bedroom. The Vale Court

mandated, id. at 33-34, that

"lTilf a search of a

house is to be upheld

as incident to an

arrest, that arrest

must take place inside

the house, cf. Agnello

v. United States, 269

U.S. 20, 32, not some-

where outside--Whether

two blocks away ;

or on the sidewalk near

the front steps. ‘Belief,

however well-founded,

that an article sought

is concealed in a dwelling

house furnishes no justi-

fication for a search of

that place without a

warrant.' Agnello v.

United States, supra, at

33. That basic rule ‘has

never been questioned in

this Court.‘ Stoner v.

- 33-

California,

That Court continued by declining to hold

“that an arrest on the street can provide

its own ‘exigent circumstance’ so as to

justify a warrantless search of the

arrestee's house." Id. at 35. Accord,

United States v. Goad, 426 F.2d 86 (10th

Cir. 1970); United States v. Holsey, 414

F.2d 458 (10th Cir. 1969).

It is impossible to construe

Petitioner Pickett's actions as providing

the ‘exigent circumstances' necessary for

a warrantless search. Indeed, the Federal

agents here cannot avail themselves of

conduct specifically proscribed by several

decisions of this Court. See also United

States v. Marshall, 488 F.2d 1169 (9th

Cir. 1973); United States v. Gamble, 473

F.2d 1274 (7th Cir. 1973). Recently, the

Court of Appeals for the Ninth Circuit

reflected upon an analogous set of facts.

In United States v. Basurto, 497 F.2d 781

-34-

(9th Cir. 1974), the Defendant was arrested

in front of his home by two Customs agents.

After he was placed under arrest, Basurto

turned toward the house and yelled, “It's

the police."' Immediately, an agent who did

not have a search warrant, ran to the front

door, opened it and entered the house. The

agent testified that he entered to see if

anyone was inside and to see if anyone

inside had weapons. While inside the agent

discovered incriminating evidence. After

careful examination of Supreme Court deci-

sions, see also Coolidge v. New Hampshire,

403 U.S. 443 (1971), the Ninth Circuit

refused to condone the search.

From the foregoing discussion,

it is evident that Petitioner Pickett's

constitutional rights were substantially

infringed upon by the admission of the

weapon into evidence. The inquiry must

now turn to the prejudicial effect of such

evidence.

Under the guidelines of Chapman

v. California, 386 U.S. 18 (1967) a

Governmental violation of a Defendant's

constitutional rights does not require a

reversal of the conviction if the viola-

tion constitutes “harmless error." The

Co.t in Chapman adopted the test of Fahy

v. Connecticut, 375 U.S. 85, 86-87 (1963)

to determine whether an error is harmless.

"The question is whether

there is a reasonable possi-

bility that the evidence

complained of might have

contributed to the convic-

tion . . . An error in

admitting plainly relevant

evidence which possibly

influenced the jury adverse-

ly to the litigant cannot,

under Fahy, be conceived of

a harmless, [and] the bene-

ficiary of the error [must]

prove beyond a reasonable

doubt that the improperly

admitted evidence did not

contrivute to the conviction.

Chapman, supra, at 23-24,

The Government in the case at

hand has not met the burden of showing

beyond a reasonable doubt that the

- 36-

admission in evidence of a gun, purportedly

brandished at the time of arrest by a co-

Defendant being tried jointly with Pickett,

did not contribute to the Petitioner's

conviction. This was a prosecution not

involving force or weapons. Society mani-

fests a strong consternation and concern

toward those that wield deadly weapons,

and where the prosecution herein concerns

trafficking in marijuana and bears no

reasonable relation to charges involving

deadly weapons, the only possible effect

of the introduction of the gun coupled with

the testimony of the circumstances of

arrest is the prejudicial and inflamatory

value of associating the Petitioner with

the weapon in order to propel a guilty

verdict. A conviction based upon such

horror-envoking ploys mocks the very

foundation of our judicial system. Com-

pare Stoner Vv. California, 376 0.S. 483

(1964) reh. den., 377 U.S. 940 (1965) with

otBe

‘ Bumper v. North Carolina, 391 U.S. 543

(1968). See also Bowling v. United States,

350 F.2d 1002 (D.C. Cir. 1965); Binge v.

United States,

333 F.2d 210 (9th Cir. 1964);

Green v. Yeager, 223 F.Supp. 544 (D.C.N.J.

1963) affd. per curiam, 332 F.2d 794 (3rd

Cir. 1964); Moscow v. United States, 301

F.2d 180 (9th Cir.), 371 U.S. 842 (1962);

Cochran v. United States, 291 F.2d 633

(8th Cir. 1961). A reversal of Petitioner's

conviction is necessitated.

ARGUMENT III

THE ADMISSION OF TESTIMONY CONCERNING

PURPORTED COCAINE TRANSACTIONS

WAS PREJUDICIAL ERROR

It is a cardinal principle of the

common law that the prosecution may not

use evidence of prior criminal acts in its

case-in-chief to prove that the Defendant

committed the crime for which he is

presently charged. See Michelson v.

United States,

335 U.S. 469 (1948);

-38-

United States v. Lawrence, 480 F.2d 688

(5th Cir. 1973). This is a just and wise

general rule in order to avoid the enormous

danger of prejudice to a Defendant that

the evidence of prior crimes creates.

Exceptions have been carved out, however,

to serve a limited prosecutorial and

judicial purpose, but these should not be

permitted to engulf the rule. See United

States v. San Martin, 505 F.2d 918 (5th

Cir. 1974) and cases cited therein; United

States v. Anderson, 509 F.2d 312 (D.C. Cir.

1974) cert. denied, 95 S.Ct. 1427 (1975).

Where the evidence of other acts tends to

prove some element of the crime presently

charged, and therefore, is not offered to

show the Defendant's bad character, it can

be properly received. United States v.

Pittman, 439 F.2d 906 (5th Cir.), cert.

denied, 404 U.S. 842 (1971); L. Wright,

Federal Practice & Procedure: Criminal

§410 (1969). Similary, evidence of other

«Site

acts of misconduct is regarded as admissible

for the purpose of showing knowledge, intent,

motive, design, scheme or the like, where

such is an essential element of the commis-

sion of the offense. See United States v.

Crockett, 514 F.2d 64 (5th Cir. 1975).

But before one of these exceptions may

properly be invoked, the Trial Court must

be satisfied that several threshold pre-

requisites have be. . met. As formulated

in United States v. San Martin, supra, at

921-922:

"1. Proof of the prior

similar offenses must be

“plain, clear and convinc-

ing; '

2. The offenses must not

be too remote in time to

the alleged crime;

3. The element of the

prior crime for which

there is a recognized

exception to the general

rule, such as intent,

must be a material issue

in the instant case;

4. There must be a

-40-

substantial need for

the probative value of

the evidence provided

for by the prior crimes.

United States v. Cavallino,

498 F.2d 1200, 1206 (5th

Cir. 1974). If all of

these prerequisites are

satisfied, and if it

appears on balance that

the need for such evidence

outweighs the prejudicial

effect it is likely to

have, then the evidence

is admissible. jemphasis

added |

By applying this test to the case

before the Court, it is apparent that the

evidence cannot be said to be "plain, clear

and convincing,'' because only the fact of

the offenses and not their circumstances

were introduced. It is not clear, for

example, from the record:that any of the

prior acts included specific intent as a

material element; “prior crimes requiring

only general intent are of meager, if any,

probative value concerning the later

existence of specific intent." United

States v. San Martin, supra, at 922.

oitien

Further, there was no “substantial” need for

the probative value of the evidence. Indeed,

it can be said that the prejudicial effect

of the testimony clearly outweighed any

need for its introduction. By denying the

admissibility of such evidence, the Court

does not presume that character is irrelevant.

Rather that it weighs too much with a

jury and persuades them to prejudge one

with a bad general record. This results in

the denial of a "fair opportunity to

defend against a particular charge."

Michelson v. United States, 335 U.S. 467,

475-76 (1948).

The evidence that Pickett engaged

in other criminal activities on other

occasions, did not come within any of

the above proferred exceptions to the

Michelson rule. The extreme damage and

prejudice resulting therefrom could not be

removed by any curative instructions. See

United States v. Stover, 492 F.2d 1367

~42-

(6th Cir. 1974); United States v.

Rudolph, 403 F.2d 805 (6th Cir. 1968).

ARGUMENT IV

THE EVIDENCE WAS INSUFFICIENT TO

SUSTAIN PETITIONER'S CONVICTION

In a conspiracy case, the record

must be carefully scrutinized for evidence

of intent. Anderson v. United States, 417

U.S. 211 (1974). A conspiracy indictment

involving numerous persons in which proof

at Trial indicated three separate conspira-

cies with only two or three of the Defendants

common to all conspiracies caused the Court

in United States v. Varelli, 407 F.2d 735,

747 (7th Cir. 1969) to reverse a host of

convictions:

"The jury was not properly

instructed in order that they

could find multiple conspira-

cies and still find the

defendants guilty. Without

being properly instructed, it

was possible for the jury to

transfer guilt from one to

another and to find defendants

guilty of an overall conspira-

cy. . . We find it necessary

oh Se

to void the convictions

because their rights

were substantially preju-

diced by a single Trial with-

out proper instructions."

From this common occurrence,

Tom Pickette submits that he too is

entitled to a retrial, in the appropriate

district, on the conspiracy and substantive

counts, for the overwhelming guilt of

the convicted conspirators most assuredly

transferred to him. The overall tone of

the Government's conduct was an effort to

bulldoze the jury. The risk of guilt-

transferance was high and compounded by the

totality of prejudicial testimony. Due

Process of Law imperatively calls for a

reversal of his ccenviction.

~-44-

CONCLUSION

For the reasons stated, the

Petition for a Writ of Certiorari should

be granted, and the Judgment and Order of

the United States Court of Appeals for

the Fourth Circuit in this case should

be reversed.

Respectfully submitted,

A

A wt at

~-45-

APPENDIX

ARTICLE III, SECTION 2, CLAUSE 3

CONSTITUTION OF UNITED STATES

"The Trial of all Crimes. except

in Cases of Impeachment, shall be by Jury;

and such Trial shall be held in the State

where the said Crimes shall have been

committed; but when not committed within

any State, the Trial shall be at such

Place or Places as the Congress made by

Law have directed."

-46-

CONSTITUTION OF UNITED STATES

AMENDMENT [IV. ]

"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, supported by Oath or affirmation,

and particularly describing the place to

be searched, and the persons or things to

be seized."

AMENDMENT [V. ]

"No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval forces,

or in the Militia, when in actual service

in time of War or public danger; nor shall

any person be subject for the same offence

to be twice put in jeopardy of life or

wt =

limb; nor shall be compelled in any

criminal case to be a witnes: against

himself, nor be deprived of life, liberty,

or property, without due process of law;

nor shall private property be taken for

public use, without just compensation."

AMENDMENT [VI. ]

"In all criminal prosecutions,

the accused shall enjoy the right to a

speedy and public trial, by an impartial

jury of the State and district wherein

the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be imformed

of the nature and cause of the accusation;

to be confronted with the witnesses

against him; to have compulsory process

for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his

defence."

~-48-

18 U.S.C. §1952

"(a) Whoever travels in interstate

or foreign commerce or uses any facility

in interscate or foreign commerce,

including the mail, with intent to--

(1) distribute the proceeds of

any unlawful activity; or

(2) commit any crime of violence

to further any unlawful

activity; or

(3) otherwise promote, manage,

establish, carry on, or

facilitate the promotion,

management, establishment,

or carrying on, of any

unlawful activity,

and thereafter performs or attempts to

perform any of the acts specified in

subparagraphs (1), (2), and (3), shall be

fined not more than $10,000 or imprisoned

for not more than five years, or both.

(b) As used in this section ‘unlaw-

ful activity’ means (1) any business

enterprise involving gambling, liquor on

which the Federal excise tax has not been

paid, narcotics or controlled substances

-49-

(as defined in section 102 (6) of the

Controlled Substances Act), or prostitu-

tion offenses in violation of the laws of

the State in which they are committed or

of the United States, or (2) extortion,

bribery, or arson in violation of the

laws of the State in which committed or

of the United States.

(c) Investigations of violations

under this section involving liquor shall

be conducted under the supervision of

the Secretary of the Treasury. As amended

Pub.L. 91-513, Title II, §701 (i) (2),

Oct. 27, 1970, 84 Stat. 1282."

-50-

FEDERAL RULES OF CRIMINAL PROCEDURE

RULE 18

"Except as otherwise permitted

by statute or by these rules, the prose-

cution shall be had in a district in

which the offense was committed, but if

the district consists of two or more

divisions the trial shall be had in a

division in which the offense was committed."

RULE 40

IX. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

Rule 40. . Commitment to Another District; Removal

(a) Arrest in Nearby District. If a person is arrested on a warrant

issued upon a complaint in a district other than the district of the arrest

but in the same state, or on a warrant issued upon a complaint In another

state but at a place less than 100 miles from the place of arrest, or with-

out a warrant for an offense committed in another district in the same

state or in another state but at a place less than 100 miles from the place

of the arrest, he shall be taken without unnecessary delay before the near-

est avallable federal magistrate; preliminary proceedings shall be con-

ducted in accordance with Rules 5 and 5.1; and if held to answer, he shall

be held to answer to the district court for the district in which the prose-

cution is pendiug, or if the arrest was without a warrant, for the district

in which the offense was committed. If such an arrest is made on a war-

rant issued on an indictment or information, the person arrested shall be

taken before the district court in which the prosecution is pending or, for

the purpose of admission to bail, before a federal magistrate in the dls-

trict of the arrest in accordance with provisions of Rule 9(c) (1).

(b) Arrest in Distant District.

(1) Appearance before Federal Magistrate. If a person is arrested up-

On @ warrant issued in another state at a place 100 miles or more from the

place of arrest, or without a warrant for an offense committed in another

State at a place 100 miles or more from the place of arrest, he shall be

taken without unnecessary delay before the nearest available federal

magistrate in the district in which the arrest was made.

oS.

(2) Statement by Federal Magistrate. The federal magistrate shall in-

form the defendant of the rights specified in Rule 5(c), of his right to

have a hearing or to waive a hearing by signing a waiver before the fed-

eral magistrate, of the provisions of Rule 20, and shall authorize his re-

lease under the terms provided for by these rules and by 18 U.S.C. § 3146

and § 3148.

(3) Hearing; Warrant of Removal or Discharge. The defendant shall

not be called upon to plead. If the defendant waives hearing, a judge

of the United States shall issue a warrant of removal to the district where

the prosecution is pending. If the defendant does not waive hearing, the

feceral magistrate shall hear the evidence. At the hearing the defendant

may cross-examine witnesses against him and may introduce evidence in

his own behalf. If a United States magistrate hears the evidence he shall

report his find!ngs and recommendations to a judge of the United States.

If it appears from the United States magistrate's report or from the evi-

dence adduced before the judge of the United States that sufficient ground

has been shown for ordering the removal of the defendant, the judge shall

issue a warrant of removal to the district where the prosecution is pend-

ing. Otherwise he shall discharge the defendant. There is ‘sufficient

grounds” for ordering removal under the following circumstances:

(A) If the prosecution is by indictment, a warrant of removal shall is-

sue upon production of a certified copy of the indictment and upon proof

that the defendant is the person named in the Indictment.

(B) If the prosecution is by information or complaint, a warrant of

removal shall issue upon the production of a certified copy of the informa-

tion or complaint and upon proof that there is probable cause to believe

that the defendant is guilty of the offense charged.

(C) If a person is arrested without a warrant, the hearing may be

continued for a reasonable time, upon a showing of probable cause to be-

Neve that he js guilty of the offense charged; but he may not be removed

as herein provided unless a warrant issued in the district in which the of-

fense is alleged to have been committed is presented.

(4) Bail. If a warrant of removal is issued, the defendant shall be ad-

mitted to bail for appearance in the district in which the prosecution is

pending under the terms provided for by these rules and by 18 U.S.C.

3 3146 and § 3148. After a defendant is held for removal or is dis-

charged, the papers in the proceeding and any bail taken shall be trans-

— to the clerk of the district court in which the prosecution is pend-

ng.

(5) Authority of United States Magistrate. When authorized by a

rule of the district court, adopted In accordance with 28 U.S.C. § 636(b),

2 United States magistrate may issue a warrant of removal under sub-

division (b) (3) of this rule.

As amended Apr. 24, 1972, eff. Oct. 1, 1972.

o$2-

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 75-1453

United States of America,

Appellee,

versus

Tom Pickette,

Appellant.

Appeal from the United States District Court for the

Southern District of West Virginia, at Charleston.

K. Hall, District Judge.

Argued November 14, 1975 Decided Dec. 1, 1975

Before CLARK, United States Supreme Court Justice, Retired,*

BRYAN, Senior Circuit Judge, and CRAVEN, Circuit Judge.

John Troelstrup [Court-appointed] (Weaver and Troelstrup

on brief) for Appellant; John A. Field, III, United States

Attorney (Robert B. Allen, Assistant United States Attorney,

on brief) for Appellee.

* Sitting by designation.

«$3

PER CURIAM:

This is an appeal from the verdict of a jury establish-

ing Pickette's membership and activity in a conspiracy to

distribute marijuana and sell it in West Virginia and other

states.

The removal of the defendant from Arizona to West

Virginia for trial, and venue in West Virginia, were

proper and in accord with established law. It was not

error to admit evidence of similar crimes for the limited

purpose of showing mens rea. Nor is there any merit to

the contention that officers had no right to search for

and seize a gun that had been brandished by one of the

defendants moments before in an attempt to prevent entry

to the premises. The direct testimony of guilt was over-

whelming.

AFFIRMED.

-$4-

PROOF OF SERVICE

STATE OF ARIZONA )

COUNTY OF PIMA)

I, ARMAND SALESE, Attorney of

record for TOM PICKETTE, Petitioner,

depose and say that on the 27 day of

January, 1976, I served three copies of

the foregoing Petition for Writ of

Certiorari on the Solicitor General,

Department of Justice, Washington, D.C.

20530, and three copies of the foregoing

Petition for Writ of Certiorari on John

A. Field, III, United States Attorney,

Federal Building, 500 Quarrier Street,

Charleston, West Virginia 25301,

Respondents herein, by depositing the

same in a United States Post Office

Mail Box, with first class postage prepaid,

(express), addressed to the above and the

above addresses.

THE FOREGOING Proof of Service

was subscribed and sworn to before me

this ‘7° day of January, 1976, by

ARMAND SALESE.

=

4

thinwtuCl Jlost

Notary Public /

My commission expires:

DLALL

afin