# Petition — Bageris v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1009

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2352%3A1. Public record. Not legal advice.