Opposition — Lemmons v. United States

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, FILED

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JUN 8 10%

No. 75-1456 : |

In the Supreme Cot of the United States

OCTOBER TERM, 1975

MELVIN LEMMONS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

MICHAEL W. FARRELL,

HOWARD WEINTRAUB,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1456

MELVIN LEMMONS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

15a-22a) is reported at 527 F.2d 662. The opinion

of the district court on petitioner’s pre-trial motions

(Pet. App. 9a-13a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on December 24, 1975, and a petition for rehearing

(1)

2

with suggestion of rehearing en bance was denied on

February 13, 1976 (Pet. App. 23a). On March 10,

1976, Mr. Justice Stewart extended the time for fil-

ing a petition for a writ of certiorari to and includ-

ing April 13, 1976. The petition was filed on April

12, 1976. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether there was probable cause for petition-

er’s arrest.

2. Whether the admission of fingerprint evidence

violated petitioner’s Sixth Amendment right of con-

frontation.

3. Whether the district court properly refused to

compel the disclosure of the identity of a government

informant.

4. Whether the judgment of the district court

(which acted as the trier of fact) was based upon

evidence not presented at trial.

STATEMENT

After a non-jury trial in the United States District

Court for the Eastern District of Michigan, peti-

tioner was convicted of possession of heroin with

intent to distribute it, in violation of 21 U.S.C. 841

(a)(1).' He was sentenced to ten years’ imprison-

ment, under the immediate parole eligibility provi-

sions of 18 U.S.C. 4208(a)(2), and a three-year

1Co-defendant Alice Jones, who was charged with the

same offense, was acquitted.

3

term of special parole. The court of appeals affirmed

(Pet. App. 15a-.2a; 527 F. 2d 662).

On January 22, 1973, police officers searched a

retail clothing store in Detroit, Michigan, pursuant

to a warrant that authorized the search of the store

for “heroin and other evidence of dealing in narcotic

drugs” (Pet. App. 3a). In the course of the search,

the police discovered 16 tin foil packets of heroin in

a file cabinet located in an office area that was not

accessible to the general public (S. Tr. 50-51, 74-75,

100-101, 115-116, 135, 140-141, 155-157, 223; Tr. 17-

22, 31-36, 76, 82, 190-194).* Handguns and nar-

cotics paraphernalia were also seized from the store

(S. Tr. 50, 59; Tr. 129).

While the search was underway but before the

heroin had been found, petitioner arrived at the store

and identified himself as one of the owners of the

business (S. Tr. 121-122, 164; Tr. 194-195, 217-218).

The police officers ordered him and other persons to

remain in the front area of the store in order not

to interfere with the search. After the heroin was

discovered and field-tested, petitioner and co-defend-

ant Jones, who managed the store, were arrested and

fingerprinted (S. Tr. 63-64, 133-135, 161-162, 169-

171; Tr. 80-81, 113-115, 118, 193-195, 217-218, 221-

224). Subsequent testing by the Michigan State Po-

lice Laboratory revealed that petitioner’s fingerprints

matched those found on two of the packets of heroin

seized from the store (Tr. 150-151, 255-258, 261-

263).

2“S. Tr.” refers to the transcript of the pre-trial suppres-

sion hearing.

4

ARGUMENT

1. Petitioner’s contention (Pet. 7-11) that the

police lacked probable cause to arrest him is based

upon the erroneous assertion that he was arrested

(a) before the discovery of the heroin and (b) solely

because of his admission that he was an owner of

the business. However, both lower courts found (Pet.

App. 12a, 16a), and the record indicates, that peti-

tioner was not arrested until after the heroin had

been located.’ The court of appeals therefore correctly

concluded that there was probable cause for petition-

er’s arrest (Pet. App. 18a-19a):

* * * [T]he officer had sufficient information to

afford him probable cause to believe that [peti-

tioner] possessed the narcotics found in the file

cabinet. [Petitioner’s] status as a part owner

of the business combined with the fact that the

narcotics were found in a filing cabinet in the

office area of the store not accessible to the gen-

eral public were sufficient to cause a reasonable

person to have believed that [petitioner] and

Miss Jones, the store manager on duty at the

time of the search, were in control of the office

area and possessed the drugs found there.

* Indeed, petitioner’s present assertions are contrary to

his representations in the district court that his arrest fol-

lowed the discovery of the heroin (C.A. App. 105, 111-112).

“C.A. App.” refers to the appendix in the court of appeals,

a copy of which is being lodged with the Clerk of this Court.

In any event, the precise sequence of events is not significant,

since the only evidence derived from petitioner’s arrest that

was used against him at trial—his fingerprints—was taken

after the discovery of the heroin.

5

See also Johnson v. Wright, 509 F. 2d 828, 830 (C.A.

5), certiorari denied December 9, 1975, No. 75-31;

United States v. Hutchinson, 488 F, 2d 484, 488-489

(C.A. 8), certiorari denied sub nom: Ennis v. United

States, 417 U.S. 915; United States v. Carter, 486

F, 2d 1027, 1028 (C.A. 6), certiorari denied, 416

U.S. 937. sere”

2. The packets of ter6m sezide from the file cabi-

net and the fingerprints taken from petitioner on the

day of his arrest were sent for analysis to Sergeant

Franklin Nichols, a latent print specialist at the

Michigan State Police Laboratory (Tr. 186, 196-205,

232-235). Sgt. Nichols obtained fingerprint lifts

from two of the tin foil packets and, after comparing

the lifts to petitioner’s fingerprints, concluded that

the fingerprints on the packets of heroin were those

of petitioner. Following standard procedure, Ser-

geant Merlin Mowery, a latent fingerprint examiner,

verified Sgt. Nichols’ findings at the laboratory (Tr.

150-173, 236-248, 255-264, 268, 277-278).

Because of Sgt. Nichols’ death prior to trial, Sgt.

Mowery was called to testify about the fingerprint

analysis. Sgt. Mowery, who had worked closely with

Sgt. Nichols and was familiar with his handwriting,

identified the pieces of tin foil and petitioner’s finger-

print card, stated that a tag attached to each lift

indicated that it had been taken from the foil, and

testified that his own examination of the lifts and

the fingerprint cards had confirmed the findings of

Set. Nichols that both sets of fingerprints belonged

to petitioner (Pet. App. 19a-20a).

6

Petitioner contends (Pet. 20-23) that the trial

court violated his Sixth Amendment right of con-

frontation by admitting these exhibits into evidence

and by permitting Sgt. Mowery to testify concerning

Sgt. Nichols’ fingerprint analysis. But, as the court

of appeals correctly noted (Pet. App. 20a), the ex-

hibits (each of which had been logged into the Michi-

gan State Police Laboratory and marked in accord-

ance with the laboratory’s standard procedures) were

admissible under the business records exception to

the hearsay rule, 28 U.S.C. 1732. See, e.g., United

States v. Calvert, 523 F. 2d 895, 911 (C.A. 8) ; United

States v. Fendley, 522 F. 2d 181, 185 (C.A. 5). Al-

though petitioner asserts (Pet. 22) that there was

no “record custodian testimony” introduced at trial,

that requirement of the business records exception

was satisfied by the testimony of Sgt. Mowery (a

person familiar with the laboratory practices in-

volved) that the records were kept in the ordinary

course of business and that they were authentic. See,

e.g., United States v. Fendley, supra, 522 F. 2d at

185; United States v. Leal, 509 F. 2d 122, 127 (C.A.

9); United States v. Russo, 480 F. 2d 1228, 1240

(C.A. 6), certiorari denied, 414 U.S. 1157. See also

Fed. R. Evid. 803(6).

This Court has emphasized “that the mission of

the Confrontation Clause is to advance a practical

concern for the accuracy of the truth determining

process in criminal trials by assuring that ‘the trier

of fact [has] a satisfactory basis for evaluating the

truth of the prior statement.’ ” Dutton v. Evans, 400

_— _——

7

U.S. 74, 88, quoting from California v. Green, 399

U.S. 149, 161. The fingerprint identification evidence

in this case was fully explained by Sgt. Mowrey, who

confirmed the conclusion reached by Sgt. Nichols and

who was subject to cross-examination by petitioner.

The court of appeals therefore correctly concluded

(Pet. App. 20a-).that “because the trier of fact had

a satisfactory basis in Mowery’s testimony for evalu-

_ ating the fingerprint evidence, there was no violation

of [petitioner’s] rights guaranteed by the Sixth

Amendment.”

3. Petitioner’s contention (Pet. 12-17) that the

district court erred in not requiring the government

to disclose the identity of its informant is insubstan-

tial. The test for determining whether an inform-

ant’s identity should be revealed was outlined in

Roviaro v. United States, 353 U.S. 53, 62:

We believe that no fixed rule with respect to

disclosure is justifiable. The problem is one that

calls for balancing the public interest in protect-

ing the flow of information against the indi-

vidual’s right to prepare his defense. Whether

a proper balance renders nondisclosure errone-

ous must depend on the particular circumstances

of each case, taking into consideration the crime

charged, the possible defenses, the possible sig-

nificance of the informer’s testimony, and other

relevant factors.

Thus, Roviaro makes clear that the Court “was un-

willing to impose any absolute rule requiring disclo-

sure of an informant’s identity * * *.” McCray v.

Illinois, 386 U.S. 300, 311. The striking of a proper

balance between a defendant’s demand for disclosure

8

and the government’s legitimate need for confiden-

tiality is addressed to the sound discretion of the

district court. See, e.g., United States v. Anderson,

509 F. 2d 724, 729 (C.A. 9), certiorari denied, 420

U.S. 910; United States v. Bell, 506 F. 2d 207, 215-

216 (C.A. D.C.).

The trial judge (who was also the trier of fact)

did not abuse his discretion in this case. The in-

formant’s only relevance here was in providing in-

formation that was used to obtain the search war-

rant; he did not participate in or witness the offense

of which petitioner was convicted, nor did petitioner

present any credible evidence to the contrary. See

United States v. Clark, 482 F. 2d 103, 104 (C.A. 5).

Although petitioner contended at trial that he was

“framed’—that “there was no informant as alleged”

but only a store employee who, for whatever reason,

entrapped him (Pet. 12)—the district court prop-

erly rejected this wholly speculative claim and cred-

ited instead the “evidence submitted in open court

and subject to cross-examination, that the officers

did rely in good faith upon credible information sup-

plied by a reliable informant.” McCray v. Illinois,

supra, 386 U.S. at 305. See S. Tr. 5-49.

4, Finally, petitioner contends (Pet. 17-20) that

the district court relied at trial upon evidence that

had been introduced only at the suppression hearing.

Although petitioner does not specify the basis for

his objection, he apparently refers to the “crucial

non-existent fact” (Pet. 18) that his fingerprints had

been found on the foil packets of heroin. As we noted

above, see p. 5, supra, however, this evidence clearly

9

was presented at trial by Sgt. Mowery’s testimony.

Furthermore, the district court’s comment in the

course of denying petitioner’s post-trial motion for

a judgment of acquittal or new trial—“this case has

taken a considerable amount of time. I had an evi-

dentiary hearing on this that lasted perhaps a week

** *” (C.A. App. 234)—hardly substantiates peti-

tioner’s allegations, since petitioner’s post-trial mo-

tion had expressly incorporated the issues raised in

his pre-trial motion to suppress (see id. at 213).

The court’s remark was directed to those issues, not

to the sufficiency of the evidence. Indeed, the court

immediately proceeded to discuss the trial, noting

that it had “heard this case without a jury” and had

acquitted petitioner’s co-defendant while finding “that

the government did prove its case beyond a reason-

able doubt as it relates to [petitioner]” (id. at 234).

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ROBERT H. BORK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

MICHAEL W. FARRELL,

HOWARD WEINTRAUB,

Attorneys.

JUNE 1976.

W ov. S. GOVERNMENT PRINTING orrice; 1976 209115 264