Opposition — Calesnick v. United States

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No. 76-1283 JUN 2 iSTT

RODAK, JR., CLERK

In the Supreme Court of the Hui

OcTOBER TERM, 1976

MILTON A. CALESNICK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WapbE H. McCree, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

SIDNEY M. GLAZER,

KATHERINE WINFREE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Page

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CITATIONS

Cases:

Brewer v. Williams, No. 74-1263, decided

ER TEE UU ‘ciciccldhbdidibiudiaidilieapdiasiaiabbaddiinntnntasnenionss 8

Brock v. United States, 223 F. 2d 681 ................. 10

Chapman v. California, 386 U.S. 18 ...............00064- )

James v. United States, 418 F. 2d 1150 ............... 10

Katz v. United States, 389 U.S. 347 ..........ccceeeee 10

I RS OO 10

Massiah v. United States, 377 U.S. 201 ...........000.. 8

Michigan v. Mosley, 423 U.S. 96 ...........cccccceeeeee eee 6

Milton v. Wainwright, 407 U.S. 371 ................02... 9

Miranda v. Arizona, 384 U.S. 436 ........cccccce cee 7

Ponce v. Craven, 409 F. 2d 62i, certiorari

denied sub nom. Ponce v. California, 397

MEE SHIT sicssidinsiaihuniinssicaiuaditdlieninietieninunibiamanihaen 10

Schneckloth v. Bustamonte, 412 U.S. 218 ............. 7

Smith v. United States, 50S F. 2d 824 ...............2... 7

**

Cases—continued:

Texas v. Gonzales, 388 F. 2d 145 ...............0....

United States v. Davis, 423 F. 2d 974,

certiorari denied, 400 U.S. 836 ...........0..0.0...

United States v. Hanahan, 442 F. 2d 649 ........

United States v. Honore, 450 F. 2d 31,

certiorari denied, 404 U.S. 1048 ....0000000.0000...

United States v. Johnson, 506 F. 2d 674,

certiorari denied, 421 U.S. 917 .........cc ce.

United States v. Johnson, 529 F. 2d 581,

certiorari denied, 426 U.S. 909 ..........0.cccce.

United States v. Shima, 545 F. 2d 1026,

pending on petition for a writ of certiorari,

NE DC CT

United States v. Walling, 486 F. 2d 229,

certiorari denied, 415 U.S. 923.000.0000...

Constitution and statutes:

United States Constitution:

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 76-1283

MILTON A. CALESNICK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The order of the court of appeals (Pet. App. A) is

not reported.

JURISDICTION

The judgment of the court of appeals was entered

on February 17, 1977. The petition for a writ of cer-

tiorari was filed on March 16, 1977. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether, in the circumstances of this case, the use

in evidence of statements made to law enforcement offi-

cials by petitioner after his arrest and in the absence of

retained counsel violated petitioner's right to the assis-

tance of counsel or his privilege against compelled self-

incrimination.

(1)

2

2. Whether the Fourth Amendment was violated when a

federal agent, who was standing on a public sidewalk,

looked through a window into petitioner’s premises and

observed a controlled substance.

STATEMENT

After a jury trial in the United States District Court for

the Eastern District of Pennsylvania, petitioner was con-

victed of the manufacture and possession of methaqualone

with intent to distribute it (Counts | and 11), in violation of

21 U.S.C. 841(a)(1), and on three counts of unlawful

possession of other controlled substances, in violation of 21

U.S.C. 844(a). He was sentenced on Counts | and II to

concurrent terms of five years’ imprisonment to be followed

by two years’ special parole. Imposition of sentence on the

remaining counts was suspended.

1. The sufficiency of the evidence of petitioner’s guilt is

not in dispute. In brief, it showed that on June 13, 1975,

Drug Enforcement Administration (DEA) agents, acting

pursuant to a warrant, searched petitioner’s premises at 832

North Third Street, Philadelphia, Pennsylvania, and seized

more than 1,000 grams of methaqualone, 35 drums of N-

acetyl anthranilic acid (which petitioner had recently

purchased), several empty drums that had contained that

same chemical, and large quantities of ortho toluedine and

anthranilic acid (1! Tr. 19-28, 34-35, 127, 138-139).' The

search also produced a large heat reactor, a tableting

“Tr.” and “S.H.” refer, respectively, to the four-volume trial

transcript and the two-volume transcript of the pre-trial suppression

hearing. “G. Ex.” refers to government exhibits. “App.” refers to

petitioner’s appendix in the court of appeals.

3

machine, and tablet punches (1 Tr. 26-35, 39, 71-72, 78-79,

85, 101, 109, 122-123; 2 Tr. 83).?

Later that day, DEA agents searched (also pursuant to a

warrant) Cal-Vet Labs, Inc. (petitioner’s corporation) at 320

Race Street, Philadelphia. That search uncovered, inter

alia, six bottles labelled “Pentobarbital Sodium Tablets”

and four bottles of liquid butabarbital, phendimetrazine,

and sodium pentobarbital (1 Tr. 76, 99-100, 103, 124-125),

each of which is a controlled substance (2 Tr. 18-19, 23).

Petitioner, a chemist, was not registered with the DEA

either to manufacture or to possess any controlled

substances (G. Ex. 16; 2 Tr. 27, 33-34).3

*The methaqualone seized was brown in color, while pharma-

ceutical grade methaqualone is normally white (1 Tr. 140-142). Ortho

toluedine and N-acetyl anthranilic acid are primary ingredients in the

manufacture of methaqualone (1 Tr. 127-128); indeed, with the aid of a

heat reactor, methaqualone can be produced from those two

components alone (1 Tr. 137). Although N-acetyl anthranilic acid can be

used legitimately to manufacture synthetic grape flavoring, the quantity

of the chemical seized was sufficient to produce approximately one ton

of such flavoring (1 Tr. 160).

The building that was searched was not marked or advertised as a

laboratory, and the windows were boarded over (1 Tr. 73-74; G. Exs.

11-14).

‘Testifying in his own behalf, petitioner maintained that the

methaqualone seized was the residue of an experiment he had con-

ducted in 1973, prior to the time the substance became federally

controlled, and that he had destroyed the methaqualone produced at

that time (2 Tr. 71-72, 77-78). He contended that he had purchased the

N-acetyl anthranilic acid for experiments and for production of grape

flavoring (2 Tr. 92, 97). According to petitioner, the sodium

pentobarbital and butabarbital had been part of his stock when he sold

veterinary supplies and the quantities seized had been at his 320 Race

Street laboratory for many years before the substances were controlled

(see, e.g., 2 Tr. 58-59). He denied knowledge of the presence of the

phendimetrazine (2 Tr. 58).

4

2. After the search at 320 Race Street, petitioner's

attorney arrived in response to a telephone call from

petitioner, who was then arrested and given Miranda

warnings (1 S.H. 24, 33). Petitioner stated that he under-

stood his rights, and his lawyer instructed him not to make

any statements (1 S.H. 25, 33). No questions were asked of

petitioner (1 S.H. 25-26).

The following morning, DEA Special Agent Wallace

Mignault picked up petitioner from the jail where he had

spent the nighi (1 S.H. 27; 1 Tr. 41). They ate lunch and then

returned, at about noon, to the DEA office to await

petitioner's arraignment and bail hearing, which was

scheduled for approximately 1:30 p.m. (1 S.H. 27; | Tr. 41).

At the DEA office, the agent and petitioner, who was “very

talkative” (i S.H. 27), engaged in general conversation.

During that conversation, petitioner volunteered that he

had tried unsuccessfully to make methaqualone (1 S.H. 27; |

Tr. 42, 98). When Agent Mignault commented that the

search at 832 North Third Street disclosed no

polyphosphoric acid (a chemical that can be used to make

methaqualone), petitioner said he did not need that

chemical because he used a heat reactor instead (1 S.H. 27).

Following a pretrial hearing on petitioner's motion to

suppress these statements, the district court found that

Agent Mignault’s comment about the absence of poly-

phosphoric acid “was designed to elicit a response and,

therefore, it did constitute interrogation” (2 S.H. 44).4 By

*Petitioner also moved to suppress several other statements he had

made the previous day. Advised by the DEA agents that they were

executing a warrant issued to search 832 North Third Street for

methaqualone, petitioner queried, “What's that?” (1 Tr. 172-173).

During the course of the search, he volunteered, “How was I to know to

register with the government to produce or possess controlled

substances?” and, “If | was making methaqualone it was by mistake” (1

5

order of February 12, 1976, however, the court ruled that

the statements were admissible, and they were introduced

against petitioner at trial (App. 9).5 In accordance with the

provisions of 18 U.S.C. 3501, the district court also

permitted the introduction by the defense of evidence

relevant to the issue of voluntariness® and instructed the jury

(4 Tr. 9-10) to weigh the statements in light of all attendant

circumstances.

Tr. 102). The district court ruled that these statements were voluntary

and spontaneous and therefore admissible (2 S.H. 43-45). Additionally,

when asked what he intended to do with the N-acetyl! anthranilic acid,

petitioner advised that he was using it for grape flavoring that he

intended to sell to a Mr. Gillespie (3 Tr. 80-81). This statement was ruled

inadmissible (App. 9) and was introduced only in rebuttal after

petitioner testified he had not made such a statement (see 3 Tr. 52-54).

‘At the conclusion of the suppression hearing, the court stated (2 S.H

43-44):

As to the remarks of or response to the remarks by Agent

Mignault on the day following, it is my finding that that remark

was designed to elicit a response from [petitioner] and, in spite of

the Miranda warnings, he did respond.

1 am not too sure at this point what the effect of him changing

his mind or failing to follow his lawyer's advice would have. I guess

maybe you had better brief that as well.

* * * [Wiell, | will rule that the comment by Mr. Mignault was

designed to elicit a response and, therefore, it did constitute

interrogation, but that doesn’t necessarily make it suppressible. So

| want you to brief that point.

These statements indicate that the court’s subsequent ruling that

petitioner's statements were admissible was based on the court's

determination that petitioner had knowingly and intelligently waived

his privilege against self-incrimination and his right to counsel.

‘Petitioner maintained that he had told Agent Mignault in general

terms that the manufacture of methaqualone did not necessarily require

polyphosphoric acid (2 Tr. 115; 3 Tr. 54-55). He further testified that

these statements were made after he spent the night in jail without

sleeping facilities or food until he lunched with Mignault (2 Tr. 116).

6

ARGUMENT

1. Petitioner contends (Pet. 5-7, 9) that the statements

made on the day following his arrest were obtained in

violation of his Fifth Amendment privilege against

compelled self-incrimination and his Sixth Amendment

right to counsel and therefore should not have been

admitted into evidence. Even though the district court

found that Agent Mignault’s comment regarding the

absence of a particular chemical constituted interrogation,

we submit that, taking into account all of the circumstances

in this case, the statements were admissible. Even if their ad-

mission was error, however, it was harmless beyond a

reasonable doubt.

a. Statements obtained after a person in custody has

declined to answer questions are not inadmissible per se.

Michigan v. Mosley, 423 U.S. 96, 102. Rather, their

admissibility “depends under Miranda[v. Arizona, 384 U.S.

436] on whether his ‘right to cut off questioning’ was

‘scrupulously honored’ ” (id. at 104). The record reflects

that this standard was met here.

On the night of petitioner’s arrest his lawyer instructed

him not to make any statements. The agents respected

petitioner’s refusal to submit to questioning and at no time

either asked him whether he wished to change his mind or

sought to persuade him to do so. “This is not a case,

therefore, where the police failed to honor a decision of a

person in custody to cut off questioning, either by refusing

to discontinue the interrogation upon request or by

persisting in repeated efforts tc wear down his resistance

and make him change his mind.” Michigan v. Mosley,

supra, 423 U.S. at 105-106.

When Agent Mignault took petitioner to lunch on the

following day, he initially did no more than engage in

7

conversation of a general nature with petitioner.’ Miranda

warnings were not given,* and the district court found that

one statement made by the agent was designed to elicit a

response even though it did not take the form of a question.

But there is no evidence that petitioner was at any time

subjected to ill treatment of any sort, to lengthy custodial

interrogation, or to conscious overreaching on the part of

the agent. Nor is there any evidence that petitioner was

unable to appreciate the circumstances in which he found

himself. To the contrary, petitioner is highly educated (with

a doctorate in chemistry) and was familiar with the

processes of the criminal law by virtue of earlier arrests in

February and May 1975. In light of the totality of these

circumstances (see Schneckloth v. Bustamonte, 412 U.S.

218, 223-227), it seems plain that petitioner was aware that

he did not have to say anything to Agent Mignault and that

his decision voluntarily to raise the subject of his experience

with methaqualone amounted to a knowing and intelligent

waiver of his privilege against self-incrimination. Miranda

v. Arizona, 384 U.S. 436, 475; cf. United States v. Johnson,

529 F. 2d 581 (C.A. 8), certiorar: denied, 426 U.S. 909;

Smith v. United States 505 F. 2d 824 (C.A. 6).

b. Similarly, in the circumstances of this case, peti-

tioner’s voluntary mention to Agent Mignault of his

attempts to manufacture methaqualone amounted to a

knowing and intelligent waiver of his right to counsel.

’The record does noi :ndicate why petitioner's counsel was not present

during this time. There is no suggestion, however, that his absence was

the product of any conduct on the part of the government.

*Both at the suppression hearing and at trial Agent Mignault testified

that petitioner voluntarily raised the subject of his experiences with

methaqualone (1 S.H. 27-28; | Tr. 41-42, 97-98). Petitioner never

contradicted this account of the conversation (see 2 S.H. 26-27; 2 Tr.

114-116; 3 Tr. 54-56).

8

Neither Massiah v. United States, 377 U.S. 201, nor

Brewer v. Williams, No. 74-1263, decided March 23, 1977,

requires suppression on these facts. In Massiah, after the

defendant had been indicted on narcotics charges and was

released on bail, federal agents arranged for an inform-

ant to elicit and secretly transmit to agents stationed

nearby inculpatory information concerning the crime that

was the subject of the indictment. In Brewer, the de-

fendant, who was being sought in Des Moines, lowa,

in connection with the abduction of a child, surrendered

and was arraigned in Davenport, lowa, 160 miles away.

The defendant was represented by counsel in both Des

Moines and Davenport, and the Des Moines police officers

who drove to Davenport to bring the defendant back

promised both counsel that they would not question the

defendant about the crime during the trip. In disregard

of that agreement, however, one of the officers did inter-

rogate the defendant, who in response directed the offi-

cers to the place where he had hidden the child’s

body.

Massiah and Brewer share the common characteristic

of a predesigned attempt by law enforcement officials

to take advantage of the absence of defense counsel

in questioning a defendant about a crime after the

Sixth Amendment right to counsel had attached. That

characteristic is absent here. There is no evidence what-

ever that Agent Mignault engaged in casual conversation:

with petitioner with an ulterior motive to elicit damaging

statements from him in the absence of his counsel. The

remark that the district court found was intended to elicit

a response came only after petitioner himself had volun-

tarily adverted to the subject matter of the crime for

which he had been arrested. At that point, the agent

was not obliged to close his ears or to assume the role

of defense counsel on petitioner’s behalf. Rather, he

9

was entitled to assume that petitioner, an educated man

with a previous acquaintance with the criminal law,

spoke of his experiences with methaqualone in full

awareness that he was privileged to remain silent

and to have his counsel present before submitting to

any interrogation. Accordingly, the agent’s remark con-

cerning the absence from petitioner’s laboratory of a

chemical used to manufacture methaqualone did not con-

stitute unlawful interrogation, and the admission into

evidence of petitioner's response to that remark did not

violate petitioner's right to the assistance of counsel.

c. In any event, even if petitioner’s statement was

erroneously admitted, any error was harmless beyond a

reasonable doubt. The quantity of drugs seized, the manner

in which they were stored and used in petitioner’s premises,

petitioner's ability and equipment to process the metha-

qualone into tablets, and petitioner's other admissible

statements provided overwhelming evidence of guilt. There

was therefore no reasonable possibility that the challenged

evidence might have contributed to the conviction. See

Milton v. Wainwright, 407 U.S. 371; Chapman v.

California, .86 U.S. 18, 24.

2. On June 13, 1975, subsequent to the search at 832

North Third Street, Agent Mignault went to 320 Race

Street, the premises of Cal-Vet Labs, Inc. While standing on

the public sidewalk in front of the building, he observed

through the glass door and window a bottle labelled

“Paraldehyde” and a barrel similar to the drums of N-acetyl

anthranilic acid he had just seen during the search at 832

North Third Street (1 S.H. 65-72; 1 Tr. 45, 61, 71). The agent

then obtained a warrant to search 320 Race Street for

paraldehyde, which is a controlled substance. The affidavit

supporting the warrant set forth the above facts and

incorporated by reference the search warrant affidavits for

832 North Third Street.

10

Contrary to petitioner's contention (Pet. 8-9), the agent's

observation through the window did not violate peti-

tioner’s Fourth Amendment rights. It is settled that a visual

observation by a law enforcement officer situated in a place

where he has a right to be is not a search within the meaning

of the Fourth Amendment. Ker v. California, 374 U.S. 23,

42-43; United States v. Johnson, 506 F. 2d 674, 675 (C.A. 8),

certiorari denied, 421 U.S. 917; United States v. Walling,

486 F. 2d 229, 236(C.A. 9), certiorari denied, 415 U.S. 923;

James v. United States, 418 F. 2d 1150, 1151 n. 1 (CLA.

D.C.). Agent Mignault was lawfully situated on the public

sidewalk (1 S.H. 66) when he looked through the “very big,

large, glass window” and observed the bottle on a counter

some 10 or 12 feet from the window (1 S.H. 65; | Tr. 71).

“[T]he place was open and passersby could see inside” (|

S.H. 66). Moreover, the word “paraldehyde” was “un-

mistakable” (ibid.). Petitioner had no reasonable expecta-

tion of privacy with regard to what he knowingly exposed to

the public. Katz v. United States, 389 U.S. 347, 351; cf.

United States v. Honore, 450 F. 2d 31, 33 (C.A. 9), certio-

rari denied, 404 U.S. 1048 (items in residence observed

through uncurtained window from public stairway); United

States v. Hanahan, 442 F. 2d 649, 654 (C.A. 7) (evidence

viewed through window from public sidewalk); Ponce v.

Craven, 409 F. 2d 621, 625 (C.A. 9), certiorari denied sub

nom. Ponce v. California, 397 U.S. 1012 (activities seen

through window in motel room).’

*Petitioner is incorrect in asserting (Pet. 8) that the law in the Fifth

Circuit is to the contrary. See United States v. Shima, 545 F. 2d 1026,

1028-1029 (C.A. 5), pending on petition for a writ of certiorari, No. 76-

6268. United States v. Davis, 423 F. 2d 974 (C.A. 5), certiorari denied,

400 U.S. 836, Texas v. Gonzales, 388 F. 2d 145 (C.A. 5), and Brock v.

United States, 223 F. 2d 681 (C.A. 5), upon which petitioner relies, are

distinguishable. In each of those cases the visual observation was made

possible by means of a physical trespass into a constitutionally protected

area. Here, by contrast, the agent looked through the window from a

public area where he had a right to be.

11

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Wape H. McCresr, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SIDNEY M. GLAZER,

KATHERINE WINFREE,

Attorneys.

JUNE 1977.

DOJ-1977-06