Opposition — Robertson v. United States

: eme Court, U.S,

~ FIL ED Ag

JAN 27 l9T?

t

No. 76-480 MICHAEL RODAK, JR., CLER |

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In the Supreme Court of the Runited States

OCTOBER TERM, 1976

NATHANIEL ROBERTSON, 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

DANIEL M. FRIEDMAN,

Acting Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. Fer,

ELLIOTT SCHULDER,

Aitorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-480

NATHANIEL ROBERTSON, 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

OPINION BELOW

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

14a) is reported at 539 F. 2d 898.

JURISDICTION

The judgment of the court of appeals was entered on

July 23, 1976. A petition for rehearing and rehearing en

banc (Pet. App. 16a) was denied on September 3, 1976.

Mr. Justice Stewart extended the time for filing a peti-

tion for a writ of certiorari to and including October

18, 1976, and the petition was filed on October 4, 197%.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether the district court correctly denied peti-

tioner’s motion to suppress recordings of intercepted tele-

phone conversations between his co-defendant and a

government informant.

(1)

2

2. Whether the seizure of evidence from petitioner's

residence was authorized by a valid search warrant.

STATEMENT

After a jury trial in the United States District Court for

the Eastern District of Michigan, petitioner was convicted

of conspiring to distribute heroin, in violation of 21 U.S.C.

846, and of possessing heroin with intent to distribute it, in

violation of 21 U.S.C. 841(a)(1).! He was sentenced to eight

years’ imprisonment and five years’ special parole. The

court of appeals affirmed (Pet. App. la-!4a).

On December 7, 1973, John Mondaine, an informant for

the Drug Enforcement Agency (DEA) in Kansas City,

Missouri, telephoned co-defendant Edward Hodge? in

Detroit to say that he wanted to buy a pound of heroin (Tr.

I. 32, 35). The two men discussed the quantity, quality, and

price of the drug (Tr. I. 35-36) and tentatively agreed that

Mondaine would go to Detroit to effect the transaction (Pet.

‘Petitioner asserts (Pet. 6) that he was found guilty of the possession

count alone and points in support of this proposition to a statement by

the jury foreman (Pet. App. 17a) indicating that the jury returned a

guilty verdict as to only one count. Petitioner omits reference to the page

of the transcript (Tr. Il. 861) that follows the page he reproduces and

that shows that the jury convicted on both counts. Moreover, as the

court of appeals indicated (Pet. App. la), the judgment states that

petitioner was convicted on both counts. The transcript of the

proceedings at sentencing also shows that petitioner was convicted on

both counts (Tr. Il. 864) and that he did not take exception to the

court’s statement at sentencing that he had been so convicted.

"Hodge's conviction was reversed on the ground that the trial judge

erred in refusing to submit his defense of entrapment to the jury (Pet.

App. |2a-14a).

“Tr. 1.” refers to the first volume of trial transcript, which includes

testimony taken on September 20. 1974, and is paginated separately

from “Tr. IL...” which covers the pretrial hearing on defendants’ motion

to suppress the recordings of the intercepted communications, and the

remainder of the trial.

App. 2a). The conversation was recorded with Mondaine’s

consent by DEA Agent Ryan (Tr. I. 37; Tr. II. 188-190), and

a recording of it was introduced into evidence and played for

the jury at trial (Tr. II. 193, 209, 214).

On December 12, 1973, Mondaine telephoned Hodge

again. The two men agreed to consummate the transaction

on December 14 (Pet. App. 2a-3a). This conversation was

also recorded (Tr. II. 190) and admitted in evidence at trial

(Tr. 1. 193, 215).

On December 13, Hodge met Mondaine at Detroit

Metropolitan Airport. Mondaine displayed $19,200, which

he left in an airport locker (Tr. 1. 40, 44; Tr. II. 217, 220).

After driving about and making numerous stops, the two

men drove to Stafford’s Restaurant in Detroit, arriving at

about 10:40 p.m. (Tr. I. 45, 47-48, 95-96; Tr. II. 257, 363).

Hodge told Mondaine that he would have to leave to

obtain a sample of the heroin (Tr. |. 96-97). He then drove

directly from the restaurant to petitioner’s residence—all

the time under surveillance by DEA agents. He stayed at

petitioner's home only momentarily, and then drove directly

back to the restaurant (Tr. II. 257-260, 364-365). Upon his

return he handed Mondaine a small package, which he said

contained heroin (Tr. I. 98-100).

Early the next morning Hodge gave Mondaine a ball-

shaped package of heroin (Tr. I. 102-103). Mondaine in-

sisted that the heroin be measured. Hodge drove him to an

unknown location, where he was introduced to petitioner

(Tr. I. 104-105), who measured the heroin, fourd it to be

“short,” and reduced the price accordingly (Tr. I. 107).

Hodge and Mondaine then drove to the airport, where DEA

agents arrested Hodge and seized the heroin (Tr. 1. 109; Tr.

11. 221-223, 317, 367, 442).

4

Following Hodge’s arrest the agents, acting pursuant toa

warrant,* searched petitioner’s house and seized three

plastic bags containing water residue and traces of heroin, a

photograph depicting petitioner and Hodge, several checks,

and a quantity of currency (Tr. II. 267-268, 322-327, 333-

335, 443-444).

ARGUMENT

1. Petitioner contends (Pet. 10-16) that the recordings of

the telephone conversations between Mondaine and co-

defendant Hodge should have been suppressed because

Michigan law forbids the use in evidence of conversations

intercepted without a warrant or the consent of both parties.

As the court of appeals correctly held, however (Pet. App.

9a-10a), since petitioner was neither a party to the

intercepted communications nor a target of the

interceptions, he lacks standing to challenge the

admissibility of the recordings. See Alderman v. United

States, 394 U.S. 165, 175-176; United States v. Armocida,

515 F. 2d 29, 35 n. 1 (C.A. 3), certiorari denied sub nom.

Joseph v. United States, 423 U.S. 858.

In any event, petitioner’s reliance on Michigan law is

unavailing, since federal rather than state law determines

the admissibility of evidence in the federal courts. See Ker v.

California, 374 U.S. 23, 31-33; Elkins v. United States, 364

U.S. 206, 224. Mondaine’s consent to the recording of his

conversations with Hodge made the recording lawful under

18 U.S.C. 2511(2)(c),5 and the recordings were therefore

properly admitted regardless of inconsistent state law. See

United States v. Magda, C.A. 2, No. 76-238, decided

*The underlying affidavit is reproduced at Pet. 16-19, and at Pet. App.

4a-6a. n. 6.

‘And under the Constitution as well, see United States v. Bonanno,

487 F. 2d 654, 657-658 (C.A. 2): see also United States v. White, 401 U.S.

745, 751.

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5

December 22, 1976, slip op. 1039-1040 n. 2; United States v.

Armocida, supra, 515 F. 2d at 51-52; United States v. Keen,

508 F. 2d 986, 988-989 (C.A. 9), certiorari denied, 421 U.S.

929: United States v. Melancon, 462 F. 2d 82,91-92(C.A. 5),

certiorari denied, 409 U.S. 1038; United States v. Sims, 450

F. 2d 261, 262-263 (C.A. 4).

2. Petitioner also asserts (Pet. 16-35) that the warrant-

authorized search and seizure conducted at his residence

was unlawful.

a. Contrary to petitioner’s contention, the affidavit sub-

mitted in support of the warrant, when tested in a com-

monsense fashion (United States v. Ventresca, 380 U.S. 102,

108), furnished probable cause to believe that petitioner's

house was the source of the sample of heroin that Hodge had

obtained for Mondaine and that it contained additional

quantities of the drug. As the court of appeals correctly

noted (Pet. App. 8a), the magistrate reasonably could have

found, on the basis of the information contained in the

affidavit, that:

1) a confidential informant (Mondaine) of proven re-

liability had advised the DEA that Hodge dealt in

substantial quantities of heroin; 2) it was Hodge's

procedure to inspect the purchaser’s money and then

go to his source to obtain the drugs; 3) at a res-

taurant, Hodge informed Mondaine that he was

going to get a sample of heroin; 4) a DEA agent

followed Hodge to the address on the warrant and

then back to the restaurant; 5) Hodge gave the

sample to Mondaine indicating that he had gone

directly to his source to obtain it and that it was of

the quality of heroin Hodge would deliver; and 6)

Hodge told Mondaine that he had one pound of

6

heroin available for immediate delivery and could

sell him additional quantities on short notice.®

b. Petitioner also claims (Pet. 20-25) that the affidavit

was inadequate because it contained double hearsay, in the

form of Hodge’s statement to Mondaine that he was going

to obtain the heroin from his source. Multiple hearsay does

not, however, invalidate an otherwise valid search warrant.

Rather, an affidavit containing double hearsay will be

deemed sufficient whenever it presents facts showing the

reliability of the declarant and the accuracy of his

information. See, e.g., United States v. DiNovo, 523 F. 2d

197 (C.A. 7), certiorari denied, 423 U.S. 1016; United States

v. McCoy, 478 F. 2d 176 (C.A. 10), certiorari denied, 414

U.S. 828; United States v..Smith, 462 F. 2d 456 (C.A. 8).

The instant affidavit meets that test. It established

Hodge’s credentials as a knowledgable heroin dealer

through Mondaine’s descriptions of their previous dealings

and through the seizure of a large quantity of heroin from

Hodge’s automobile. Moreover, Hodge’s references to

obtaining the heroin sample from his source were

sufficiently adverse to his penal interest to justify an in-

ference of reliability (see United States v. Harris, 403 U.S.

573, 579). Finally, the surveillance of his trip from the

restaurant to petitioner's residence, and his delivery of a

sample of the heroin to Mondaine immediately thereafter,

lent added verification to his statements mentioned in the

*Petitioner’s argument (Pet. 20) that the affidavit was insufficient

because it contained no express averment that Hodge's statements

about obtaining the heroin from his source were made at the exact

moment he left the restaurant amounts to “the very sort of hyper-

technicality * * * condemned by this Court in Ventresca” (United

States v. Harris, 403 U.S. 573, 579). A realistic reading of the

affidavit reveals that paragraphs 6 through 18 (Pet. 17-19) present

a sequential narrative that provides a reasonable basis to conclude.

as did both courts below, that Hodge had procured the sample from

petitioner's residence (Pet. App. 4a-6a. n. 6).

>

affidavit. See United States v. Gavic, 520 F. 2d 1346. 1350-

1351 (C.A. 8); United States v. Carmichael, 489 F. 2d 983,

986-987 (C.A. 7); United States v. Alonzo, 447 F. 2d 126

(C.A, 2).

c. As the court of appeals correctly concluded (Pet. App.

8a-9a), there is no substance to petitioner’s contention that

the affidavit was “tailored” to omit a material fact that

would, if known, have negated probable cause. It is true that

the affidavit did not include a detailed itinerary of Hodge's

stops in the Detroit area on December 13, 1973, prior to his

and Mondaine’s arrival at the restaurant. But nothing in the

record indicates that this omission was intended in any way

to deceive the magistrate; rather, it would seem most

reasonable to assume that these facts were omitted because

of their irrelevancy to the issue of probable cause to believe |

that petitioner’s house contained drugs. In any event, given

Hodge's statements about obtaining the sample, and the

oservation of his movements between the restaurant and

petitioner’s house, there was probable cause to believe that a

quantity of heroin would be found at the latter address even

if Hodge's irrelevant travels earlier in the evening had been

considered.’ :

d. Finally, petitioner asserts (Pet. 32-35) that the agents

executing the search warrant exceeded its mandate in

seizing a photograph (of Hodge and petitioner) and three

checks drawn by petitioner and endorsed either by Hodge,

Hodge’s girlfriend, or Hodge’s business. Contrary to

petitioner's assertion, however, these articles were within

the scope of the warrant, which authorized seizure of “any

and all property * * * which constitute[s] evidence of

heroin or other narcotics or controlled substance

"The cases cited by petitioner (Pet. 26, 28) involve affirmative

misstatements of fact and are accordingly inapposite.

8

* * * which are being used in violation of Title 21, United

States Code, Sections 841(a)(1), 844, 846” (Pet. 33). The

checks and the photograph tended to establish petitioner's

association and involvement with Hodge and were therefore.

probative of the existence of the conspiracy. See United

States v. Nathan, 476 F. 2d 456, 460 (C.A. 2), certiorari

denied, 414 U.S. 823; United States v. Armone, 363 F. 2d

385, 403-404 (C.A. 2), certiorari denied, 385 U.S. 957.

Accordingly, these items were sufficiete/y designated in the

warrant to justify their seizure by the »gents.

In any case, the seized items came into the agents’ view

while the agents were executing a valid warrant, and “i]t has

long been settled that objects falling in the plain view of an

officer who has a right to be in the position to have that view

are subject to seizure and may be introduced in evidence.”

Harris v. United States, supra, 390 U.S. 236. The DEA

agents executing the warrant had probable cause to “believe

that the evidence [seized would] aid in a particular

apprehension or conviction” (Warden v. Hayden, 387 U.S.

294, 307), and the seizure was accordingly lawful. See

United States v. Kane, 450 F. 2d 77, 85 (C.A. 5), certiorari

denied, 405 U.S. 934, and sub nom. Sklaroff v. United

States, 405 U.S. 920; see also Andresen v. Maryland, No. 74-

1646, decided June 29, 1976.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DANIEL M. FRIEDMAN,

Acting Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. Felt,

ELLIOTT SCHULDER,

Attorneys.

JANUARY 1977.

DOJ-1977-01