Petition — Calesnick v. United States

f Supreme Court, U. S.

cm FF 1 iF D

| MAR 1% 1977

IN THE |

SUPREME COURT OF THE UNITED'STATES © °°

October Term, 1977

€6-1283

No.

MILTON A. CALESNICK, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE THIRD CIRCUIT

ROBERT M. PRESSMAN

Counsel for Petitioner

1011 Western Savings Bank Bldg.

1346 Chestnut St.

Philadelphia, Pa. 19107

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19107 (215) 561-4050

+

TABLE OF CONTENTS

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Questions Presented for Review .................+.

Constitutional Provision and Statutes Involved ......

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A. Course of proceedings in the case ..........

B. Relevant facts concerning the case ........

Reason for Granting the Writ ....................

I. The Court of Appeals Has Decided a Federal

Question in a Way Which Is in Conflict with

Numerous Applicable Constitutional Decisions

OE We EE 665 bi cedendvghissscccctances

II. The Court of Appeals Has Decided Important

Questions of Federal Law in a Way Which

Conflicts with Other Federal Circuit Courts

Including a Decision Which Is Presently Being

Reviewed by This Court ..................

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Appendices:

A. Judgment Order of United States Court of

SEED 060-0000 shs5 cedhudendecescesaueen

B. Judgment and Commitment Order of the

United States District Court ..............

10

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TABLE OF CITATIONS

Cases: Page

Brewer v. Williams, 509 F.2d 277 (8th Cir. 1975), cert.

EE HE oc Kudedues coddccsdcuess 7,9

Brock v. United States, 223 F.2d 681 ( 5th Cir. 1955) 8

Harrison v. United States, 392 U.S. 219 ............ 6

Jackson v. Denno, 378 U.S. 468 ..................4. 6

Magoon v. Reincke, 416 F.2d 69 (2nd Cir. 1969) .... 9

ee i SOE © conv ccnivcecéccecsces 6

Massiah v. United States, 377 U.S. 201 ............. 7

Michigan v. Mosley, 423 U.S. 96 ...............0. 2,7

Miranda v. Arizona, 384 U.S. 436 ................. 6

Murphy v. Waterfront Commissioners, 378 U.S.52.. 6

Taylor v. Elliot, 458 F.2d 979 (5th Cir. 1972) ....... 9

Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968) .... 8

United States v. Davis, 423 F.2d 974 (5th Cir.1970.. 8

United States ex rel. McArthur v. Rundle 402 F.2d

Se EE SEED onus Seccucubieecéevéauds 8

United States v. Wedra, 343 F. Supp. 1183 (S.D. N.Y.

SD 665040 beue 005ee8eidenetseckcekesats i)

Other Authority:

United States Constitution:

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a ea ae 5,6

ee ook oe enue eeseeveees 6,7

Statutes:

EE COED oni vanc¥ausddeanedacdund 2,3,4

6 a ine cu ue wend vauoa weuean 2,3

ET cctcduneen seus hues cadeueewe oes 3

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

Milton A. Calesnick, Petitioner

v.

United States of America, Respondent

Petition for a Writ of Certiorari to The

United States Court of Appeals

for the Third Circuit

MILTON A. CALESNICK, Petitioner, prays that a Writ of

Certiorari issue to review the judgment of the United States

Court of Appeals for the Third Circuit, entered in this case

on February 18, 1977.

OPINIONS BELOW

There are no opinions from the Court of Appeals or

from the District Court below which are reported.

JURISDICTION

The judgment of the Court of Appeais below (Appen-

dix A) was entered on February 18, 1977. Rehearing was

not sought. The jurisdiction of this Court is invoked undcr

28 U.S.C. §1254(a).

QUESTIONS PRESENTED FOR REVIEW

1. Whether a criminal defendant is deprived of his Fifth

Amendment right to remain silent by custodial inter-

1

2

rogation by government agents after he has invoked his

Miranda rights.

2. Whether the admission into evidence of involuntary

Statements extracted from a criminal defendant is

error requiring a new trial.

3. Whether a criminal defendant is deprived of his Sixth

Amendment right to counsel by the violation of an

instruction given to government agents by defense

counsel that defendant was not to be interrogated and

did not intend to answer any questions.

4. Whether a criminal defendant's right to cut off ques-

tioning is “scrupulously honored” by government agents

in accord with Michigan v. Mosley, 423 U.S. 96., when

the defendant is not given a fresh set of warnings prior

to the questioning which occurs the day following his

arrest, his defense counsel is not summoned nor present

during said questioning and the questioning was con-

cerning the same criminal episode for which the de-

fendant was initially arrested.

5. Whether a criminal defendant's Fourth Amendment

right to privacy from unwarranted governmental in-

trusions is violated by the actions of government agents

who attempt to obtain probable cause for the issuance

of a search warrant by means of “peeping” into a win-

dow.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The Fourth Amendment, United States Constitu-

tion.

2. The Fifth Amendment, United States Constitution.

3. The Sixth Amendment, United States Constitution.

4. The Statutes under which Petitioner was prose-

cuted, though nothing turns on their terms, are 21 U.S.C.

§841 (a)(1) and 21 U.S.C. §844 (a) which sections pro-

vide as follows:

3

“21 U.S.C. §841 (a) (1) Prohibited Acts A—

Unlawful Acts

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or inten-

tionally —

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distrib-

ute, or dispense, a controlled substance. . . .”

“21 U.S.C. §844 Penalty for Simple possession . . .

(a) It shall be unlawful for any person knowingly or

intentionally to possess a controlled substance

unless such substance was obtained dircctly, or

pursuant to a valid prescription or order, from

a practitioner, while acting in the course of his

professional practice. .. .”

5. The Statute under which Petitioner sought appel-

late review was 28 U.S.C. §1291 which provides as follows:

“1291. Final decisions of district courts.

The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district courts

of the United States, . . . except where a direct review

may be had in the Supreme Court.”

4

STATEMENT OF THE CASE

A. Course of proceedings in the case now before this Court.

On February 27, 1976, in a cause then pending in the

United States District Court for the Eastern District of

Pennsylvania, entitled United States of America v. Milton

A. Calesnick, Criminal No. 75-739-1, petitioner was found

guilty by a jury on an indictment of five counts charging

violations of 21 U.S.C. §841 (a)(1) and 21 U.S.C. §844(a)

for manufacture and possession with intent to deliver a

controlled substance, to wit, methaqualone and possession

of other controlled substances.

On July 28, 1976, the District Court entered a judg-

ment and commitment order (Appendix B) and petitioner

was sentenced to five years imprisonment and two years

special parole on counts one and two to run concurrently.

Sentence was suspended on counts three through five. The

judgment and sentence was affirmed by the United States

Court of Appeals for the Third Circuit in United States of

America v. Milton A. Calesnick, No. 76-2119 in February,

1977 (Appendix A). A motion to stay the mandate of the

within matter was filed with the Court of Appeals on

March 3, 1977.

B. Relevant facts concerning the underlying conviction for

manufacture and possession with intent to distribute

controlled substances.

Petitioner, a chemist, was arrested after a search and

seizure had been made of his two business premises by drug

enforcement agents on June 13, 1975. The probable cause

stated in one of the search warrants was established by

means of an unlawful search of petitioner's premises by an

agent who had “peeped” through his window. Petitioner was

warned of his Miranda rights in the presence of his attor-

ney, Robert M. Pressman. Mr. Pressman immediately

5

advised the agents that petitioner would not make any

statements to them or answer any questions. The follow-

ing morning, after petitioner had been detained in a police

detention cell all night and had been unable to slecp or

eat for a twenty-eight hour period, drug agent, Wallace

Mignault, violated this instruction of counsel and pro-

ceeded to extract damaging statements from petitioner

without giving petitioner fresh warnings or summoning

counsel.

The damaging admissions were contested at a motion

to suppress evidence which was litigated prior to trial. The

District Court below concluded (Petitioner's Brief to Court

of Appeals at 30) as a finding of fact that said statements

were extracted during custodial interrogation. Neverthe-

less, the damaging admissions were adinitted as evidence

at trial, over objections by petitioner that they were in-

voluntary and were extracted in violation of his Fifth and

Sixth Amendment rights.

REASONS FOR GRANTING THE WRIT

I. The Third Circuit Court of Appeals Has Decided a

Federal Question in a Way Which Conflicts With

Numerous Applicable Decisions of This Court.

This case involves the involuntary extraction of in-

criminating statements during custodial interrogation of

petitioner after he had invoked his Fifth Amendment right

to remain silent and his Sixth Amendment right to assist-

ance of counsel.

(a) Violation of petitioner's Fifth Amendment rights.

The statements were extracted from petitioner after

the arresting officers had been advised by defense counsel

and petitioner that petitioner was not to be questioned.

Nevertheless, the agent in charge of the investigation in

the case, did question and interrogate petitioner the day

6

following petitioner’s arrest without the presence of coun-

sel. The agent thereby violated the specific instruction

which had been made to him by petitioner’s attorney. The

petitioner’s alleged answers to the agent’s questions were

that he had tried to make methaqualone but was not suc-

cessful and that he did not need a specific ingredient to

make the drug because he used a large heat reactor in its

place. Since petitioner had been charged with the manu-

facture and possession with intent to deliver methaqua-

lone, the statements extracted from petitioner were

certainly harmful and were a direct link in the chain of

evidence used to convict. The statements certainly fall

within the protection of the Fifth Amendment even if they

do not constitute an express confession or admission of all

of the elements of the crimes charged. Harrison v. United

States, 392 U.S. 219; Malloy v. Hogan, 378 U.S. 1; Murphy

v. Waterfront Commissioners, 378 U.S. 52.

The evidence extracted from petitioner was clearly

contrary to the specific pronouncements of Miranda v.

Arizona, 384 U.S. 436. It is also settled that the truth of

incriminating statements does not remove them from the

protection of the Fifth Amendment for “a defendant in a

criminal case is deprived of due process of law if his con-

viction is founded, in whole or part, upon an involuntary

confession without regard for the truth or falsity of the

confession, and even though there is ample evidence aside

from the confession to support the conviction.” Jackson v.

Denno, 378 U.S. 468, 376.

(b) Violation of Sixth Amendment.

The petitioner's Sixth Amendment right to counsel

was violated by the questioning of the drug enforcement

agent after the agent had been instructed that petitioner

not be interrogated and would not answer any questions.

Such questioning, without the protection afforded by the

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7

presence of counsel, contravenes the basic dictates of fair-

ness and the fundamental rights of persons charged with

crime. Massiah v. United States, 377 U.S. 201.

In light of the circumstances of the case, petitioner

could not effectively have waived his right to counsel for

purposes of interrogation in the absence of counsel. To

hold otherwise would make it impossible for defense coun-

sel fully to protect his client’s rights without staying with

him the entire time the client is detained by the authoritics.

Brewer v. Williams, 509 F.2d 227 (8th Cir. 1975) cert.

granted, 423 U.S. 1031.

(c) Petitioner's right to cut off questioning was not

scrupulously honored.

Inasmuch that the interrogation was conducted nine-

teen hours after petitioner's rights had been invoked and

no new fresh warnings were given to petitioner prior to

the renewal questioning, a heavy burden was thrust upon

the government to show that petitioner's right to cut off

questioning had been “scrupulously honored.” Michigan v.

Mosley, 423 U.S. 96. This Court recently indicated in

Mosley that when the defendant was (1) readvised of his

rights prior to the renewed questioning by a (2) different

officer as to a (3) different crime, statements then ob-

tained were not in violation of that defendant's rights. In

the instant case, the Government concedes in its brief to

the Third Circuit (at 30) that no fresh Miranda warnings

were given, petitioner’s attorney was not present and the

questions by the same officer were designed to elicit re-

sponses related to the instant case. Clearly, the Govern-

ment has not met the heavy burden imposed upon it by

Mosley to show that petitioner's right to cut off questioning

had been “scrupulously honored.”

8

II. The Court of Appeals Has Decided Important Ques-

tions of Federal Law in a Way Which Conflicts With

Other Federal Circuit Courts.

The petitioner respectfully urges that the decision of

the circuit court below is erroneous and at variance with

the decisions of other circuit courts in the following re-

spects:

(a) Conflict in federal law on legality of visual

searches by government agents.

The conduct of the drug enforcement agent in stand-

ing in front of petitioner’s property and “peeping” in his

window was clearly in contravention of petitioner’s Fourth

Amendment right to be free from unreasonable searches

and seizures. !t is well settled that the Fourth Amendment

embodies a comprehensive right of privacy against un-

warranted governmental intrusions. In the instant case,

the agent’s conduct constituted an illegal search because

his trip to petitioner's window occurred at a time when he

lacked probable cause to believe that any crime had or was

occurring thereon. Contrary to the view of the lower cir-

cuit court, the Fifth Circuit has continually stated that an

eye can commit a trespass. Brock v. United States, 223 F.2d

681 (5th Cir. 1955); Texas v. Gonzales, 388 F.2d 145 (5th

Cir. 1968). Those cases have held that an actual intrusion

can be accomplished visually. Furthermore, the Govern-

ment cannot rely on the “plain view doctrine” because that

exception does not apply where the observing officer has

physically invaded a constitutionally protected area in

order to secure the view. United States v. Davis, 423 F.2d

974 (5th Cir. 1970).

In the instant case, the initial intrusion which brought

the agent into the view of alleged contraband was not

lawful. The agent subsequently received a search warrant

based upon his illegal observations. A police search in

contravention of a constitutional guarantee is not made

9

lawful by what it brings to light. The search must be good

or bad when it starts and does not change character from

its success or failure. United States ex. rel. McArthur v.

Rundle, 402 F.2d 701 (3rd Cir. 1968).

The Fifth Circuit, unlike the Third Circuit bclow,

would not have affirmed the conviction of the petitioner

upon evidence discovered by a visual trespass.

The petitioner therefore believes that the decision in

his case is erroneous and at variance with the decisions of

the Fifth Circuit. The conflict in federal law should be

resolved by this Court.

(b) Conflict in federal law on whether petitioner was

denied the assistance of counsel.

The precise issue upon which petitioner seeks review

by this Court has been determined in his favor by numer-

ous federal circuit courts. Thus, a conflict in federal law

exists and sound judicial discretion dictates that the issue

be finally settled by this Court.

The Second, Fifth and Eighth Circuits have all held,

contrary to the decision in this case, that a defendant is

denied the Sixth Amendment right to the assistance of

counsel when defense counsel has advised both his clicnt

and the authorities that no further interrogation was to be

conducted and the authorities nevertheless extract incrim-

inating evidence by questioning the defendant. See Magoon

v. Reincke, 416 F.2d 69 (2nd Cir. 1969); United States v.

Wedra, 343 F.Supp. 1183 (S.D. N.Y. 1972); Taylor v.

Elliot, 458 F.2d 979 (5th Cir. 1972), and Brewer v. Wil-

liams, 509 F.2d 227 (8th Cir. 1975), cert. granted, 423

U.S. 1031.

Brewer v. Williams, supra, is presently before this

Court for review. The same important constitutional con-

siderations which this Court must resolve in Brewer v.

Williams, supra, are at issue in the instant appcal. This

Court should grant certiorari in order to simultancously

decide the meritorious issues which these two cascs

present. |

10

CONCLUSION

The judgment below represents a departure from the

fundamental decisions of this Court which have required

that convictions which are based in any manner upon

involuntary confessions be set aside. As such, this case

represents a breach of the Fifth Amendment right to

remain silent and the Sixth Amendment right to the assist-

ance of counsel. The judgment below is also contrary to

numerous decisions of this Court and other federal circuit

courts, which decisions were designed to protect citizens

from improper or overzealous behavior by government

agents. This petition for a writ of certiorari should there-

fore be granted.

Respectfully submitted,

Robert M. Pressman

Attorney for Petitioner

1011 Western Savings Bank Building

1346 Chestnut Street

Philadelphia, Pennsylvania 19107

Al

APPENDIX “A”

IN THE

UNITED STATES COURT OF APPEALS

| FOR THE THIRD CIRCUIT

No. 76-2119

UNITED STATES OF AMERICA

Vv.

MILTON A. CALESNICK, Appellant

(Criminal No. 75-739-1, E. D. of Pa.)

Submitted Under Third Circuit Rule 12(6)

February 17, 1977

Before SEITZ, Chief Judge,

Van Dusen and Weis, Circuit Judges.

Judgment Order

After consideration of all the issues raised by appel-

lant, to-wit:

(1) Was the evidence adduced at trial sufficient

beyond a reasonable doubt to have convicted defendant?

(2) Should a new trial be granted to defendant in

that the government's attorney continuously used inflam-

matory and improper dialogue in both his opening and

closing statements to the jury and at trial?

(3) Did the court err in allowing the government

prosecutor to cross-examine defendant's character wit-

nesses about an alleged arrest of defendant for perjury

and other crimes of falsehood?

A2

(4) Were the defendant's Fourth Amendment rights

infringed by the issuance of search warrant without prob-

able cause and by unreasonable and illegal searches and

seizure by government agents?

(5) Were the Defendant’s Fourth Amendment rights

infringed by the forced entry by government agents with-

out notice and by the initiation of searches without having

given the defendant copies of the warrants at the time of

entry over his objection and demand?

(6) Did the court err in allowing statements of de-

fendant into evidence which had been extracted during

custodial interrogation after defendant had chosen to exer-

cise his Fifth Amendment right to remain silent and his

Sixth Amendment right to counsel?

IT Is ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

By the Court,

/s/

Chief Judge

Attest:

/s/ THomas F. QUINN

Clerk

Dated: February 18, 1977

A3

APPENDIX “B”

[Caption Omitted in Printing]

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government the

defendant appeared in person on this date, July 28, 1976.

(]) Without Counsel.

However the court advised defendant of right to counsel and asked

whether defendant desired to have counsel appointed by the court

and the defendant thereupon waived assistance of counsel.

x] With Counsel (Narne of Counsel). Robert M. Pressman,

Esq.

() Guilty, and the court being satisfied that there is a factual

basis for the plea,

C) Nolo Contendere,

x] Not Guilty.

There being a finding/verdict of

[) Not Guilty. Defendant is discharged.

x] Guilty.

Defendant has been convicted as charged of the offense(s)

of: manufacture of Schedule II controlled substance [21

U.S.C. §841(a) (1)] on Count I; possession of Schedule II

controlled substance [21 U.S.C. §844(a)] on Counts II,

III, IV and V;

The court asked whether defendant had anything to say

why judgment should not be pronounced. Because no suffi-

cient cause to the contrary was shown, or appeared to the

court, the court adjudged the defendant guilty as charged

and convicted and ordered that: The defendant is hereby

committed to the custody of the Attorney General or his

authorized representative for imprisonment for a period of

Five (5) Years to be followed by Special Parole for a

period of Two (2) Years, pursuant to 18 U.S.C. §4205(a)

on Count I. On Count II, the defendant is committed to

A4

the custody of the Attorney General or his authorized

representative for imprisonment for a period of Five (5)

Years to be followed by Special Parole for a period of

Two (2) Years, pursuant to 18 U.S.C. §4205(a); said

period of imprisonment and Special Parole to run concur-

rently with the sentence imposed on Count I above. On each

of Counts III, IV and V, the imposition of sentence is

suspended.

It is further ordered that the execution of the sentence

is STAYED pending appeal.

* + eo

Signed by

USS. District Judge

[] U.S. Magistrate

Joseph L. McGlynn, Jr.

Certified as a true copy on

thisdate 7/28/76

By B. Bearman

—.) Clerk

x] Deputy