Petition — Bageris v. United States

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM 1977

Court of Appeals No. 76-2573

ROBERT P. BAGERIS, Petitioner

vs.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

IVAN E. BARRIS (P-10484)

MICHAEL H. GOLOB (P-23118)

Attorneys for Petitioner

1930 Buhl Building

Detroit, Michigan 48226

1-313-964-5070

INDEX

Page

Table of Authorities .... iii

Opinions Below .... 1

a REST OLE TO OTT 2

Questions Presented for Review ....................0ccccceceeeeeee-e 2

I tin siiadlainasiiiatie 2

a ceeiisieniamaaniniiahtinmngattins 3

Reasons for Allowance of the WYit ...............c0--sesssss-- 7

Question I

Argument

The Government has the duty to warn a crimi-

nal defendant prior to the taking of a personal

history questionnaire during the bookkeeping

process that any answers given by the de-

fendant to specific questions on the personal

history questionnaire can be used by the Gov-

ernment in its case in chief at trial 002... 7

Question IT

Argument

The admission of testimony concerning the

defendant’s refusal to sign a waiver of rights

form after being advised of his constitutional

rights constitutes a violation of the privilege

against self-incrimination pursuant to the

Fifth Amendment of the United States

Constitution ................. iecrleiailabiniasidibias 14

Conclusion. ............ senipneieinhiansbaeicialintiiditpiincnitiaiti 17

ii

Appendix A—Judgment and Commitment of the

United States District Court .....0..2.....2..-...ecccceseoeees

Appendix B—Order of the United States Court of

Appeals for the Sixth Cireuit —....0002022 0.

Appendix C—Order of the United States Court of

Appeals for the Sixth Cireuit Denying the

ee TN TI sicencnesechstericenee<etentilieititinitsiatiotnniiieas

Appendix D—21 United States Code 841 ~...000......

lil

TABLE OF AUTHORITIES

Page

Cases:

Chapman v. California, 386 U.S. 18 (1967) -.-...00000000020... 16

Doyle v. Ohio, — U.S. —, 96 S.Ct. 2240 (1976) _...... 14, 16

Michigan v. Mosley, 423 U.S. 96 (1975) -............ 7, 12, 13, 14

Miranda vy. Arizona, 384 U.S. 436 (1966) 2.00000... 7,10, 13

Proctor v. United States, 404 F.2d 819 (D.C. Cir.

I sealerhichscaldacinielioeeibih dee eictein sinipabineaniaediaeiab ceniiistaae 10, 11

United States v. Hale, 422 U.S. 171 (1975) 00000... 14, 16

United States ex rel Hines v. LaVallee, 521 F.2d 1109

(2d Cir. 1975), cert. denied, 423 U.S. 1990 (1976)...... 9

United States v. Menichino, 497 F.2d 935 (5th Cir.

SINE | sidatesiisaliacitd-cihdlcadaeies tuaisensetisuienssapainahuninmbasieibcaiataiintaiaaéal 8, 9,11

Other Authorities:

Fifth Amendment of the United States Constitution ..2, 15

Title 21 United States Code 841 o....cccccccsseecescessseenee 2

Title 28 United States Code 1254(1) 20000. 2

Supreme Court Rules, Rule 19 222.2... cee eeeeeeeee eee 7

Supreme Court of the GQnited States

OCTOBER TERM 1977

RS

Court of Appeals No. 76-2573

ROBERT P. BAGERIS, Petitioner

vs.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

The Petitioner, Robert P. Bageris, by his attorneys,

Ivan E. Barris and Michael H. Golob, respectfully prays

that a Writ of Certiorari issue to review the Judgment

heretofore entered against him by the United States Court

of Appeals fur the Sixth Circuit on May 24, 1977, and the

Order denying the Petition for Rehearing entered on July

1, 1977.

OPINIONS BELOW

The Judgment and Commitment of the United States

District Court for the Eastern District of Michigan, South-

ern Division, is unreported, but is set forth hereinafter

(Appendix A infra). The Order of the United States Court

of Appeals for the Sixth Circuit affirming the conviction

is unreported, but is set forth hereinafter (Appendix B

2

infra). The Order of the United States Court of Appeals

for the Sixth Circuit denying the Petition for Rehearing

is unreported, but is set forth hereinafter (Appendix C

infra).

JURISDICTION

The Order of the United States Court of Appeals for

the Sixth Circuit affirming the conviction was entered on

May 24, 1977; the Order denying the Petition for Rehear-

ing was entered on July 1, 1977. The jurisdiction of this

Honorable Court is invoked under Title 28, United States

Code 1254(1).

QUESTIONS PRESENTED FOR REVIEW

I

Does the Government have the duty to warn a criminal

defendant prior to the taking of a personal history ques-

tionnaire during the booking process that any answers

given by the defendant to specific questions on the personal

history questionnaire can be used by the Government in

its case in chief at trial?

Il

Does the admission of testimony concerning the defend-

ant’s refusal to sign the waiver of right sheet after being

warned of his constitutional rights constitute a violation of

the privilege against self-incrimination pursuant to the

Fifth Amendment of the United States Constitution?

STATUTE INVOLVED

21 United States Code 841 (Appendix D infra).

3

STATEMENT OF THE CASE

This case arose from the execution of a Search Warrant

at the apartment of Petitioner, Robert P. Bageris (here-

inafter referred to as Bageris), on September 19, 1974.

On September 19, 1974, Agent James Stepp of the Drug

Enforcement Administration signed an Affidavit in Sup-

port of a Search Warrant based upon information which

was purportedly given to Stepp by a confidential informant

of the Drug Enforcement Administration. On the basis

of the Affidavit of Agent Stepp, a Magistrate from the

United States District Court for the Eastern District of

Michigan issued a Search Warrant for the premises which

Bageris was occupying.

After Stepp had obtained the Search Warrant, a ‘‘raid-

ing party’’ was formed which included Stepp, Agent Louis

Antonucci, and several other agents of the Drug Enforce-

ment Administration. The raiding party then proceeded to

Bageris’ apartment located in the City of Southfield, and

when they arrived at the door to Bageris’ apartment,

Agent Stepp proceeded to batter the door with a ram after

he purportedly announced his presence. After the agents

ultimately gained entrance into the apartment, a search

ensued for controlled substances and the paraphernalia

associated therewith.

At the conclusion of the search of Bageris’ apartment,

various suspected controlled substances were seized and

Bageris was placed under arrest to be taken to the Fed-

eral Building in Downtown Detroit for booking, processing

and other arrest procedures. After the raiding party had

returned to the offices of the Drug Enforcement Adminis-

tration in the Federal Building in Downtown Detroit, Agent

Antonucci, in the presence of Agent Turner, orally read

4

Bageris his constitutional rights, not for the purpose of

taking the personal history questionnaire, but in order to

see whether Bageris wished to make a statement to the

agents. After Agent Antonucci had orally read Bageris’

constitutional rights, the agent then handed Bageris the

printed form containing the constitutional rights. After

the form was presented to Bageris, Bageris stated that

he had nothing to say and refused to sign the form. After

Bageris had refused to execute the waiver of rights form

and stated that he did not wish to make a statement, Agent

Turner directly proceeded to ask Bageris the personal his-

tory questions without expressly warning hin that any

statements made during the taking of the personal history

questionnaire could be used by the Government in its case

in chief at trial. One of the questions asked of Bageris by

Agent Turner during the personal history questionnaire

concerned whether Bageris used any drugs. Bageris re-

sponded that he did not use drugs of any kind, to which

Agent Turner asked as to whether that remark extended

to marijuana, to which Bageris replied that he did not use

marijuana either.

Bageris was ultimately indicted on April 18, 1975 in an

eleven (11) Count Indictment. Seven (7) of the eleven (11)

Counts in the Indictment pertained to possession with in-

tent to distribute relatively small quantities of marijuana,

with the largest single amount of marijuana being found

in Count III of approximately 440.3 grams or just under

one (1) pound. Counts V and VI of the Indictment per-

tained to the possession with intent to distribute cocaine,

with the quantities in said Counts being approximately 0.28

grams and 3.28 grams respectively. The remaining two

(2) Counts, being Counts IX and X, concerned the posses-

sion with intent to distribute relatively small quantities

of amphetamines.

Aftet an abortive effort at trial had ended in a mistrial

on August 20, 1975, the rctrial commenced on September

23, 1975. During the Government’s case in chief, the As-

sistant United States Attorney was conducting his direct

examination of Agent Mary Turner concerning the taking

of the personal history questionnaire of Bageris after he

had been brought down to the Federal Building subsequent

to his arrest as described supra. An argument ensued as

to whether the Government should be permitted to use the

statements which Bageris had made during the taking

of his personal history questionnaire. The statements in

question pertain to the fact that Bageris, in response to

a question by Agent Turner, stated that he did not use

drugs of any kind whatsoever, including marijuana. The

Trial Court ultimately ruled that the Government could

use the statements in question.

Also during the Government’s case in chief, during the

direct examination of Agent Antonucci, Agent Antonucei

testified that Bageris was given a waiver of rights form

which he read over and then refused to sign. The

defense made a motion for mistrial based upon the remark

of Agent Antonucei concerning Bageris’ refusal to sign

the waiver of rights form: The Trial Court denied the mo-

tion for mistrial and instructed the jury to disregard the

remark.

At thé conclusion of the Government’s case in chief,

the defense made a Motion for Judgment of Aequittal,

and argument ensued thereon. After hearing argument on

the Motion for Judgment of Acquittal, the Trial Court

denied the same as to each of the eleven (11) Counts in

6

the Indictment, basing its decision in large part on the

statements of Bageris taken during the personal history

questionnaire that he did not use drugs of any kind what-

soever.

After the Government had rested its rebuttal case, the

Assistant United States Attorney gave his closing argu-

ment or summation to the jury. After the summation of

the defense, the Assistant United States Attorney made

his rebuttal argument to the jury. In both the initial sum-

mation and the rebuttal argument of the Assistant United

States Attorney, references were made to Bageris’ state-

ments taken during his personal history questionnaire

that he did not use drugs of any kind whatsoever, includ-

ing marijuana, as going to the point that the controlled

substances were allegedly being held for distribution, as

opposed to simple possession.

After the Trial Court had instructed the jury, the jury

ultimately returned with a verdict of not guilty as to Count

I of the Indictment, and guilty as to the remaining Counts

of the Indictment. The defense filed a Motion to Dismiss,

or in the Alternative, for Judgment of Acquittal, or for

New Trial, together with a Supplemental Motion for New

Trial. After the Trial Court denied all of the post trial

motions of Bageris, a timely Notice of Appeal was filed

with the United States Court of Appeals for the Sixth Cir-

cuit. On May 24, 1977 the Sixth Circuit entered an Order

affirming the Judgment of Conviction. Bageris filed a timely

application for rehearing in the Sixth Cireuit which was

denied in an Order dated July 1, 1977.

7

REASONS FOR ALLOWANCE OF THE WRIT

I

In Miranda v. Arizona, 384 U.S. 436 (1966), this Honor-

able Court promulgated certain procedures to be fol-

lowed as applied to custodial interrogation in order to

protect the constitutional privilege against compulsory

self-incrimination pursuant to the Fifth Amendment of

the United States Constitution. The present Petition in-

volves the procedures to be employed when the Government

seeks information on a personal history questionnaire

ostensibly designed to elicit information for the Govern-

ment’s bookkeeping purposes. As will be shown infra, the

present appeal contains elements of the following consid-

erations governing review on certiorari pursuant to Rule

19 of the rules of this Honorable Court: First, that the

decision of the United States Court of Appeals for the

Sixth Cireuit would appear to be in conflict with similar

eases in the United States Courts of Appeals for the Sec-

ond, Fifth and District of Columbia Circuits; second, that

the decision of the Sixth Circuit has decided an important

question of Federal Constitutional law, namely the proper

procedures to be employed in taking personal history ques-

tionnaires, which has not been, but should be, settled by

this Honorable Court; third, that the decision of the Sixth

Circuit would appear to be in conflict with the applicable

decisions of this Honorable Court, namely Miranda v. Ari-

zona, supra, and Michigan v. Mosley, 423 U.S. 96 (1975).

With regard to a conflict in the various Courts of Ap-

peals, the Sixth Circuit, in the present matter, has appar-

ently taken the position that the Government is permitted

to ask questions of a criminal defendant without first ex-

pressly warning that the answers given may be used by

the Government in their case in chief, and further, that

the questions asked may pertain to the criminal activity

itself. Since Bageris had been arrested for suspected viola-

tions pertaining to controlled substances, the questions

on the persona! \istory questionnaire pertaining to usage

of drugs do indeed pertain to the very area of criminal

activity for which the Defendant was arrested. In counsel’s

research, no other Federal Court of Appeals has permitted

the Government to ask a personal history questionnaire

containing questions which pertain to the criminal activity

for which the defendant was arrested, without requiring

the Government to expressly warn that any answers given

may be used in the Government’s case in chief at trial.

In contrast to the decision of the Sixth Circuit in the

present matter, the decision of the Fifth Circuit in United

States v. Menichino, 497 F.2d 935 (5th Cir. 1974), indicates

that the Fifth Circuit would not have permitted the Gov-

ernment to introduce the statements in question in the

present matter. In Menichino, supra, the defendant was ad-

vised of his constitutional rights and refused to sign a

waiver of rights form as parallels the factual situation

in the present matter. Menichino was then asked biographi-

eal questions, and during the taking of the personal history

information, Menichino volunteered incriminating state-

ments which were not in response to a_ biographical

question. The Fifth Circuit held that the volunteered in-

criminating statements were admissible because the bio-

graphical questions themselves did not lend themselves to

eliciting damaging statements. Furthermore, the interroga-

tion appeared to have been a straightforward attempt to

secure biographical data necessary to complete booking,

and the questions asked did not relate, even tangentially,

to criminal activity. In addition, the Fifth Cireuit was

careful to point out that the incriminating statements were

strictly volunteered, and were not made in response to one

of the questions asked during the booking procedure. In

contrast to Menichino, supra, Bageris was asked questions

concerning drug usage, and the incriminating statements

were made in direct response to questions concerning drug

usage, and were not volunteered as was the case in Meni-

chino, supra.

In the decision of the Second Circuit in United States

ea rel Himes v. LaVallee, 521 F.2d 1109 (2d. Cir. 1975), cert.

denied, 423 U.S. 1090 (1976), the defendant therein, while

en route to the police station, without having been given

his constitutional rights, informed the arresting officer,

in response to questions designe: to pass the time by seek-

ing background data, such as name, address, age and mari-

tal status, that he had been married eleven years and had

two children, The information regarding the length of

his marriage and the number of his children later proved

to be incriminating because of statements which the de-

fendant had made to the complainant during the commis-

sion of the crime.

The Second Cireuit held that as long as the questioning

is related to the most basic identifying data required for

booking and arraignment, the same would be permissible.

However, the Second Circuit was quick to point ont that

its holding was strictly limited to simple identification in-

formation of the most basic type such as name, address

and marital status. In other words, the clear implication

of the decision of the Second Circuit is that any question-

ing which goes beyond simple identification information

of the most basic sort would be impermissible. Since the

10

questioning of Bageris by Agent Turner in the present

matter went far beyond biographical data of the most

basie and innocuous type, it is respectfully submitted that

the Second Circuit most likely would have suppressed

Bageris’ statements under its view enunciated in Lavallee,

supra.

Finally, in the case of Proctor v. United States, 404 F.2d

819 (D.C. Cir. 1968), the District of Columbia Circuit

perhaps went further than any other Circuit has gone in

prohibiting the type of questioning which Bageris was sub-

jected to. In Proctor v. United States, supra, the defendant

was arrested and read his constitutional rights, and then

was taken to a police station. At the police station, the

arresting officer, in the course of filling out a lineup sheet

on the defendant, asked the defendant whether he was em-

ployed without first once again advising the defendant

of his constitutional rights. After the defendant made cer-

tain damaging admissions, the District of Columbia Circuit

held that the questions which the arresting officer asked

Proctor in the course of filling out the lineup sheet con-

stituted custodial interrogation which is improper absent

a waiver of constitutional rights in accordance with the

doctrine of this Honorable Court in Miranda v. Arizona,

supra. The District of Columbia Circuit conceded that the

police officer asked the questions without any intent to elicit

statements, damaging or otherwise, bearing on the crime

with which the defendant was charged. The Court held that

the intent with which the questions were asked is totally

irrelevant, and the Court held that where the answers turn

out to be damaging to the suspect, they cannot be used at

trial absent a valid waiver of constitutional rights.

Since it is recognized that no other Court of Appeals

11

has gone as far as the District of Columbia Court of Ap-

peals went in Proctor v. United States, supra, it should be

made clesr that Bageris is not placing his primary or sole

reliance upon the decision in Proctor, supra. However, it

is respectfully submitted that if this Honorable Court were

to take the so-called middle approach as was done by the

Second Circuit in LaVallee, supra, and the Fifth Circuit

in Menichino, supra, the statements of Bageris should have

been suppressed by the Trial Court for the reasons stated

supra. Since the statements of Bageris were made in re-

sponse to a direct question of Agent Turner pertaining to

the criminal activity itself, after Bageris had declined to

sign a waiver of rights form without the Government ex-

pressly warning that the personal history questionnaire was

fair game for damaging admissions, the statements should

have been suppressed.

It should also be made clear that Bageris has no quarrel

per se with the proposition that the Government is entitled

to take a personal history questionnaire for its bookkeeping

purposes. However, Bageris would wish to emphasize that

the Government cannot have it both ways since the ration-

ale for permitting the Government to take a personal his-

tory questionnaire is that the same is essential for basic

bookkeeping records, and is not designed to elicit damaging

responses. In short, as soon as the personal history ques-

tionnaire contains questions which are related, even tan-

gentially, to the criminal activity itself, or as soon as the

Government is permitted to introduce any statements

gleaned from the personal history questionnaire in its case

in chief, the rationale for permitting the Government to

obtain such data vanishes. In other words, if the Govern-

ment takes the position that the Miranda Warnings did

12

not have to be readministered prior to the taking of the

personal history questionnaire, then it is respecttully sub-

mitted that the Government has tacitly admitted that the

questioning was solely designed for its bookkeeping pur-

poses, and the Government cannot now change the rules

of the games after the game has been played to introduce

the statements in its case in chief. On the other hand, if

the Government takes the position that the Miranda Warn-

ings should be given prior to the taking of a personal

history questionnaire, then it is clear that the Government

did not abide by such a procedure since the agent proceeded

to take the personal history questionnaire directly follow-

ing the Defendant’s refusal to make a statement and to

sign the waiver of rights form. Under Michigan v. Mosley,

supra, the very least that the Government could have done

after Bageris had indicated a refusal to make a statement

coupled with a refusal to sign a waiver of rights form

would have been to cease questioning for a period of time

and then readminister the Miranda Warnings directly prior

to the taking of the personal history questionnaire as is out-

lined in Michigan vy. Mosley, supra.

With regard to the reason for allowance of the Writ

that the Sixth Circuit decided an important question of

Federal law which has not been, but should be, settled by

this Honorable Court, it is respectfully submitted that the

proper method for the Government to take a personal his-

tory questionnaire is of vital significance to the adminis-

tration of criminal justice. It would not be an exaggeration

to state that police authorities attempt to obtain biographi-

cal information of one kind or another in the vast majority

of arrests which are conducted throughout the various fifty

states and throughout the various Federal Courts. The

18

fact that the Second Cireuit, the Fifth Cireuit, the Dis-

trict of Columbia Circuit, and the Sixth Circuit have all

spoken to the general area of personal history question-

naires indicates that the taking of biographical data is

indeed an important matter in the administration of erimi-

nal justice. Moreover, it is respectfully submitted that this

Honorable Court has always recognized that it has a con-

tinuing duty to delineate the parameters and boundaries

of the decision of this Honorable Court in Miranda v. Art

zona, supra. To the best of counsel’s research, it does not

appear as if this Honorable Court has ever ruled on the

proper procedures to be followed in the taking of a personal

history questionnaire.

With respect to the final reason for allowance of the

Writ, it would appear as if the decision of the Sixth Circuit

in this matter is in conflict with the decisions of this Honor-

able Court in Miranda v. Arizona, supra, and Michigan v.

Mosley, supra. In Miranda v. Arizona, supra, this Court

held that a heavy burden rests upon the Government to

demonstrate that the Defendant knowingly and intelligently

waived his privilege against self-incrimination. As stated

supra, Bageris was orally given his constitutional rights

and handed a waiver of rights form, at which time he stated

that he did not wish to make a statement and refused to

sign the waiver of rights form. Directly following Bageris’

refusal to make a statement and to execute the waiver of

rights form, Agent Turner proceeded to directly question

Bageris concerning the personal history questionnaire

without expressly warning him that any statements made

during the course of the personal history questionnaire

could be used against him at trial. Since Bageris was never

expressly warned that his statements during the biographi-

14

cal questioning could be used against him at trial, it is

respectfully submitted that the Government had failed to

discharge its heavy burden to demonstrate that Bageris

knowingly and intelligently waived his privilege against

self-incrimination with respect to the personal history ques-

tionnaire. At the very least, the Government should be re-

quired to expressly warn a criminal defendant that his

answers during the personal history questionnaire can be

used against him at trial since the Government seeks to

justify the biographical questioning on the purported basis

that it is to be used strictly for bookkeeping purposes, and

not for developing evidence at trial.

Moreover, pursuant to the doctrine of this Court enun-

ciated in Michigan v. Mosley, supra, the Government most

likely should have ceased questioning Bargeris for a period

of time after he had orally indicated that he « d not wish

to make a statement coupled with his refusal to execute the

waiver of rights form. The decision of this Court in Mich-

igan v. Mosley, supra, was careful to point out that the re-

administration of the Miranda Warnings after a decent

interval of time has passed may be sufficient to discharge

the Governement’s heavy burden that the defendant know-

ingly and intelligently waived the privilege against self-

incrimination. Conversely, it is respectfully submitted that

if the Government fails to readminister the Miranda Warn-

ings and also fails to cease questioning for a short time, then

the result should be that the Government has not discharged

its heavy burden.

In Doyle v. Ohio, — U.S. —, 96 S.Ct. 2240 (1976), and in

United States v. Hale, 422 U.S. 171 (1975), this Honorable

15

Court established a rule that the Government cannot use the

silence of a defendant after he has been warned of his con-

stitutional rights for any purpose, including impeachment.

Despite the clear mandate of this Court that the silence of

a defendant following the administration of his constitu-

tional rights cannot be used in any form at trial, a Govern-

mental agent at trial made reference to the fact that after

Bageris was advised of his constitutional rights, he declined

to sign the waiver of rights sheet.

After the agent had commented that Bageris had refused

to sign the waiver of rights sheet after being informed of

his constitutional rights, the defense immediately made a

motion for mistrial based upon said remark. The defense

further pointed out to the Trial Court that the earlier trial

of Bageris had resulted in a mistrial due to the same

agent’s statement that Bageris had declined to make a

statement after being read his constitutional rights. In

denying the motion for mistrial, the Trial Court drew a

distinction between the earlier situation in which the agent

had stated the no statement was made, as opposed to the

situation where the agent stated that there was a refusal to

execute the waiver of rights form. The Trial Court did

instruct the jury that Bageris was under no duty or obli-

gation to sign the waiver of rights form.

Since the context of the agent’s remarks concerning Ba-

geris’ refusal to execute the waiver of rights form immedi-

ately followed upon the agent’s statement that Bageris was

advised of his constitutional rights, the only logical infer-

ence that could be drawn by the jury from the refusal of

Bageris to sign the waiver of rights sheet was that he was

exercising his Fifth Amendment privilege against self-

incrimination by choosing to remain silent. Since the earlier

trial of Bageris had ended in a mistrial due to the remark

16

of the agent that Bageris had decliried to niake 4 statenient,

it is difficnit to understand how the comment econcernittg the

refusal to execute the waiver of rights sheet constituted

any less of a comment upon the exercise of the constitd-

tional privilege against self-incrimination than did the

remark in the earlier trial.

In Chapman v. California, 386 U.S. 18 (1967), this Court

held that unless a comment upon the exetcise of the

Fifth Amendment privilege against self-inctimination could

be construed as hatmless beyotid all reasonable doubt, a

new ttial must be ordered. Although it is recognized that

the Trial Court did instruct the jury that Bageris did not

have a duty or obligation fo sig the waiver of rights sheet,

it is respectfully submitted that such an instruction merely

emphasizes the fact that Bageris had exercised his consti-

tutional right to remain silent. As stated supra, the context

of the remark was especially damaging in that it came im-

mediately following the agent’s testimony that Bageris was

warned of his constitutional rights. Therefore, the failure

of the Sixth Circuit to reverse Bageris’ conviction based

upon the improper comment by the agent concerning the

exercise of his privilege against self-incrimination consti-

tutes a decision which is not in accordance with the deci-

sions of this Honorable Court in United States v. Hale,

supra, Doyle v. Ohio, supra, and Chapman v. California,

supra.

17

CONCLUSION

For the foregoing reasons, Petitioner, Robert P. Bageris,

respectfully urges this Honorable Court to grant this Peti-

tion for a Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit.

Respectfully submitted,

/s/ IVAN E. BARRIS (P-10484)

/s/ MICHAEL H. GOLOB (P-23118)

Attorneys for Petitioner

1930 Buhl Building

Detroit, Michigan 48226

964-5070

Dated: July 13, 1977.

Appendix A la

APPENDIX A

UNITED STATES DISTRICT COURT

Kastern District of Michigan

United States of America vs.

ROBERT PETER BAGERIS

Filed December 3, 1975 Docket No. 4-82722

In the presence of the attorney for the government the

defendant appeared in person on this date: 12/03/75.

With Counsel: Ivan E. Barris

There being a verdict of GUILTY.

Defendant has been convicted as charged of the offenses

of Count 2, 3, 4, 7, 11 — Possession with Intent to Distr.

Marihuana 21 :USC :841(a)(1); Counts 9 & 10 — Poss. with

Intent to Distribute Amphetamines; 21:USC:841(a)(1);

Counts 5 & 6 — Possession with Intent to Distribute Co-

caine 21:USC :841(a) (1); Count 3— Simple Possession of

Marihuana in Vio: 21:USC :844

The court asked whether defendant had anything to say

why judgment should not be pronounced. Because no suffici-

ent 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 hereby com-

mitted to the custody of the Attorney General or his author-

ized representative for imprisonment for a period of:

Count 2 — one (1) year plus three (3) years Special Pa-

role and a FINE in the amount of two hundred and fifty

dollars ($250.00)

Counts 3, 4 & 7 — one (1) year and three (3) years SPT

and FINE in the amount of one thousand dollars ($1,000.00)

on each Count.

2a Appendiz A

Count 11 — one (1) year plus three (3) years SPT and

one hundred dollar ($100.00) FINE

Count 5 — three (3) years plus three (3) years SPT and

FINE in the amount of one thousand dollars ($1,000.00)

‘ount 6 — three (3) years plus 3 years SPT and FINE

in the amount of two thousand dollars ($2,000.00)

Count 8 — three (3) months and two hundred dollar

($200.00) FINE

Counts 9 & 10 — three (3) years plus three (3) years

SPT and FINE in the amount of one thousand dollars

($1,000.00) on each Count.

All Counts as to imprisonment portion only are to run

concurrent,

TOTAL FINE: eight thousand five hundred and fifty

dollars ($8,550).

Defendant’s bond is continued pending appeal.

APPENDIX B

No. 76-2573

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT PETER BAGERIS,

Appellant.

ORDER

Before PHILLIPS, Chief Judge, ENGEL, Cireuit Judge,

and RUBIN, District Judge.*

*Honorable Carl B. Rubin, Judge, United States District Court for

the Southern District of Ohio, sitting by designation.

Appendiz B 3a

Robert Peter Bageris appeals from his jury conviction in

the United States District Court for the Eastern District

of Michigan on ten of eleven counts charging various vio-

lations of the narcotics laws, 21 U.S.C. § 841 (a)(1).

After his arrest, Bageris was taken to the Federal Build-

ing in Detroit for booking. He was read his Miranda rights

and indicated that he did not wish to make a statement.

Thereafter, two agents conducted a ‘‘ personal history ques-

tionnaire’’ in which they asked routine questions concerning

such matters as his age, marital status and health. At one

point the agents inquired whether Bageris used drugs and

he answered in the negative. He told the agents that he did

not use any drugs, including marijuana. At trial this state-

ment was introduced by the Government in support of the

charge that the possession of drugs by Bageris was with

intent to distribute, since he was not a user. It is contended

that this procedure violated appellant’s fifth amendment

rights. We hold this contention to be without merit. Smith

v. United States, 505 F.2d 824, 829 (6th Cir. 1974); Hill v.

Whealon, 490 F.2d 629 (6th Cir. 1974).

Other arguments for reversal are that the district court

erred in not suppressing evidence obtained during the

search of appellant’s apartment on the ground that the affi-

davit in support of the warrant was insufficent to establish

probable cause; and that testimony of Agent Antonucci

was so prejudicial as to require a mistrial. These and all

other contentions made on behalf of Bageris have been con-

sidered and found to be without merit.

Accordingly, it is ORDERED that the judgment of the

District Court be and hereby is affirmed.

Entered by order of the court.

/s/ JOHN A. HELM

Clerk

4a Appendix C

Appendia D

APPENDIX C

(Title of Court and Cause)

ORDER DENYING PETITION FOR REHEARING

Before PHILLIPS, Chief Judge, ENGEL, Circuit Judge,

and RUBIN, District Judge.*

Upon consideration, it is ORDERED that the petition for

rehearing be and hereby is denied.

Entered by order of the court.

/s/ JOHN A. HELM

Clerk

APPENDIX D

§ 841. Prohibited acts A—Unlawful acts

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

unlawful for any person knowingly or intentionally—

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

with intent to manufacture, distribute, or dispense, a con-

trolled substance; or

Penalities

(b) Except as otherwise provided in section 845 of this

title, any person who violates subsection (a) of this section

shall be sentenced as follows:

(1) (A) In the ease of a controlled substance in schedule

I or IT which is a narcotie drug, such person shall be sen-

tenced to a term of imprisonment of not more than 15 years,

a fine of not more than $25,000, or both. If any person com-

mits such a violation after one or more prior convictions of

him for an offense punishable under this paragraph, or

for a felony under any other provision of this subchapter

or subchapter II of this chapter or other law of the United

*Honorable Carl B. Rubin, Judge, United States District Court for

the Southern District of Ohio, sitting by designation.

Appendiz D 5a

States relating to narcotic drugs, marihuana, or depressant

or stimulant substances, have become final, such person

shall be sentenced to a term of imprisonment of not more

than 30 years, a fine of not more than $50,000, or both.

Any sentence imposing a term of imprisonment under this

paragraph shal], in the absence of such a prior conviction,

impose a special parole term of at least 3 years in addition

to such term of imprisonment and shall, if there was such

a prior conviction, impose a special parole term of at least

6 years in addition to such term of imprisonment.