Opposition — Bageris v. United States

No. 77-217

In the Supreme Court of the United States

OcToBer TERM, 1977

RosBerT P. BAGERIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS §OR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCres, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Aitorney General,

Jerome M. Feit,

ANN T. WALLACE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-217

ROBERT P. BAGERIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The order of the court of appeals (Pet. App. 2a-3a) is

not reported.

JURISDICTION

The judgment of the court of appeals was entered on

May 24, 1977. A petition for rehearing was denied on

July 1, 1977. The petition for a writ of certiorari was filed

on August 4, 1977, and is therefore out of time under

Rule 22(2) of the Rules of this Court. The jurisdiction of

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

(1)

5

—

QUESTIONS PRESENTED

|. Whether petitioner, by failing to move to suppress

before trial, waived his objection to the use in evidence of

a statement he made to arresting offices during routine

booking procedures.

2. Whether petitioner is entitled to a new trial because

a government witness stated that petitioner had refused to

sign a waiver of rights form, where the jury was

immediately admonished to disregard that statement.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Michigan, petitioner was

convicted of possession of marihuana (five counts),

amphetamines (two counts), and cocaine (two counts), all

with intent to distribute, and on one count of simple

pessession of marihuana, in violation of 21 U.S.C.

841(a)(l) and 844.' He was sentenced to one year’s

imprisonment and three years’ special parole on each of

the five marihuana counts, to three months’ imprisonment

on the simple possession of marihuana count, to three

years’ imprisonment and three years’ special parole on

each of the remaining counts, and to fines totalling $8,550

(Pet. App. la-2a). The sentences of imprisonment were to

be served concurrently (ibid.). The court of appeals

affirmed (Pet. App. 2a-3a).

On September 19, 1974, agents of the Drug Enforce-

ment Administration executed a search warrant for the

premises occupied by petitioner. During the search they

seized marihuana, amphetamines and cocaine and

arrested petitioner.

'An earlier trial of petitioner had resulted in a mistrial (Pet. 5).

3

At trial the government attorney asked one of the DEA

agents who had participated in the booking procedures

following petitioner’s arrest if petitioner had been asked

during those proceedings whether he used narcotics (A.

44a-45a).?, Defense counsel then requested that the matter

be taken up outside the presence of the jury (A. 45a). The

jury was excused, and defense counsel objected to the

admission of any testimony regarding statements made by

petitioner during the booking process (A. 48a). The

district court observed that the issue had not been raised

in petitioner’s pretrial motions to suppress, that

petitioner’s first trial had ended in a mistrial because of

“the personal history problems,” and that counsel could

not claim surprise with regard to the testimony the

government sought to introduce (A. 47a). The court then

heard argument from counsel and ruled that the

testimony was admissible, noting that the agent conduct-

ing the booking proceedings had warned petitioner of his

Miranda rights and that, under the circumstances, it

would not entertain a midtrial motion to suppress (A.

50a). The court did, however, allow defense counsel to

conduct a voir dire examination of the government’s

witnesses (ibid.).

During the voir dire, a DEA agent testified that

petitioner was given Miranda warnings when he was

arrested (A. 46a, 53a). He was then taken to the DEA

office, where he was again advised of his rights and given

a waiver of rights form. Petitioner declined to sign the

form and stated that he did not wish to make a statement

(ibid.). Petitioner was then photographed, fingerprinted,

and asked routine questions read to him from a personal

“A.” refers to petitioner’s appendix on appeal, a copy of which we

have lodged with the Clerk of this Court.

4

history form (A. 44a-45a). The questions on the form

related to the arrestee’s name, address, identifying data,

residence, and educational background, the names and

addresses of family members, the arrestee’s use, if any, of

narcotics, and his or her “characteristic marks or

conditions” (A. 45a). In response to the questions about

narcotics, petitioner stated that he used no drugs, “(nJot

even marijuana” (A. 67a). When the jury returned, that

statement was admitted into evidence as proof of

petitioner's intent to distribute the 863.11 grams of

marijuana discovered during the search of his house.’

ARGUMENT

1. Petitioner contends (Pet. 7-14) that the statements

made by him following his arrest were obtained in

violation of the principles of Miranda vy. Arizona, 384

U.S. 436, and therefore should have been suppressed.

Petitioner did not, however, raise this claim in a timely

fashion in the district court, and he is therefore not

entitled to have it considered now.

Although petitioner was aware prior to trial of any

facts that might have tended to support his allegations

(see A. 48a), he did not complain of improper custodial

interrogation in the suppression motions that he filed,

each of which sought suppression of the evidence seized

during the search of his home.* Accordingly, no evidence

presented at the suppression hearings (A. la-44a) touched

‘See Counts 1-4, 7, and |! of the indictment (A. 195a-197a); 863.11

grams equals nearly two pounds.

‘Petitioner's motions to suppress complained of the alleged

insufficiency of the affidavit in support of the search warrant (A.

201a-205a), alleged defects on the face of the affidavit and in the

warrant, and the conduct of the agents during the execution of the

warrant (A. 230-238). He does not present those claims here.

5

upon the circumstances surrounding the booking

procedures. Under the pertinent Rules of Criminal

Procedure in effect at the time of petitioner’s trial, a

motion to suppress prosecution evidence must be made

prior to trial.° Petitioner neither made such a motion nor

demonstrated good cause for failing to do so, and

accordingly he must be deemed to have waived his

challenge.®

‘The provisions ia effect at petitioner's trial were former Rules 41(f)

and 12, Fed. R. Crim. P. While the language of those provisions was

not as explicit as the current Rules, they had consistently been held to

state essentially the same requirement. See, e.g., United States v.

Mauro, 507 F. 2d 802, 807 (C.A. 2), certiorari denied, 420 U.S. 991;

United States v. Farnkoff, 535 F. 2d 661 (C.A. 1); United States v.

Sisca, 503 F. 2d 1337, 1349(C.A. 2), certiorari denied, 419 U.S. 1008;

United States v. Ceraso, 467 F. 2d 653, 659 (C.A. 3); United

States v. Peterson, 524 F. 2d 167, 170 (C.A. 4), certiorari denied, 423

U.S. 1088. Cf. United States v. Barber, 495 F. 2d 327 (C.A. 9). See

generally Segurola v. United States, 275 U.S. 106, 112. Although

under the old rules the district court would have had discretion to

excuse petitioner from the consequences of his waiver, that was not

done in this case. This discretion no longer exists. See Fed. R. Crim.

P. 12(b3) and 12(f).

‘Petitioner correctly notes that the decision of the District of

Columbia Circuit in Procter v. United States, 404 F. 2d 819, is at

odds with the decisions of other courts of appeals regarding the

propriety of the government's asking routine booking questions of a

defendant who, after having received Miranda warnings, has refused

to discuss the crime for which he has been arrested. See, in addition

to the decision below, United States v. Prewitt, 553 F. 2d 1082(C.A.

7), certiorari denied, October 3, 1977 (No. 76-6665); United States v.

Grant, 549 F. 2d 942. 946 (C.A. 4), certiorari denied, June 20, 1977

(No. 76-6463); United States ex rel. Hines v. LaVallee, 521 F. 2d

1109, 1112-1113 (C.A. 2), certiorari denied sub nom. Hines v.

Bombard, 423 U.S. 1090; Morrison vy. United States, 491 F. 2d 344,

345 (C.A. 8); United States v. La Monica, 472 F. 2d 580 (C.A. 9):

Farley v. United States, 381 F. 2d 357, 359 (C.A. 5), certiorari denied,

389 U.S. 942; see also United States v. Martinez, 512 F. 2d 830, 833

(C.A. 5); Smith v. United States, 50S F. 2d 824 (C.A. 6). Cf. United

States v. Menichino, 497 F. 2d 935, 940-941 (C.A. 5). Our view is

that, especially in cases such as this one, where the arrestee was given

6

2. During the direct examination of one of the DEA

agents involved in the arrest and processing of petitioner,

the following colloquy occurred (A. 68a):

A. After the search was completed, we took

[petitioner] down to our office in the Federai

Building, fingerprinted, photographed him and took

a personal history sheet.

Q. By we, who do you mean, sir—

+ * & © *

A. Myself, Agent Turner and Agent Stepp were

involved in the processing of [petitioner].

Q. (By Mr. Sharp, continuing): And what, exactly,

was your assignment in the processing of [petitioner]?

A.When we first arrived in the office, took

[petitioner] to our processing area and our lock-up. I

advised [petitioner], again, of his Constitutional

rights.

[Petitioner] was then given a waiver of rights sheet

which he read over and he refused to sign it.

MR. BARRIS [defense counsel]: Your Honor, I

think—may we have the jury excused, please.

After the court had excused the jury, defense counsel

moved for a mistrial on the ground that the agent’s

testimony amounted to an impermissible comment on

petitioner’s exercise of his Fifth Amendment privilege

full Miranda warnings at the time of arrest and again at the DEA

office, law enforcement officials may properly ask routine booking

questions that have legitimate, noninvestigative purposes relating to

the proper custody and management of the arrestee. Cf. South

Dakota v. Opperman, 428 U.S. 364; Cady v. Dombrowski, 413 U.S.

433.

5

against compulsory self-incrimination. The government

attorney conceded that “the comment was unfortunate”

(A. 69a) but argued that it was dissimilar to the testimony

that had caused petitioner’s first trial to end in a mistrial

(then a government witness testified that petitioner had

indeed exercised his privilege and had refused to make

any statement (ibid.)). Defense counsel agreed that the

situations were dissimilar (ibid.), but he argued that the

agent’s testimony about petitioner’s refusal to sign the

waiver form was irrelevant and possibly prejudicial to

petitioner (id. at 69a-70a). The district court then stated

that the government attorney’s question of the witness

had not been designed to elicit the testimony to which

defense counsel objected (id. at 70a-7 1a):

THE COURT: The question did not include that;

the answer went beyond the question. I don’t see

anything improper with the question. I think the

question was essentially, particularly in the defend-

ant’s view, as to what would be done and I think the

matter could be covered by instructing the jury that

there is no obligation by anyone to sign that form

and I intend to so instruct them.

MR. SHARP: Thank you, your Honor.

MR. BARRIS: Thank you.

THE COURT: Will you be very cautious, Mr.

Antonucci [the DEA agent], to answer Mr. Sharp’s

questions and not include any more than he asks you.

These are areas that are very difficult. If he has to ask

you a leading question, I would permit him to do so.

1 would prefer to have a leading question- - - and

you may not recognize, as a witness, from what

happened before, you’re not a lawyer, but will you be

cautious in that respect?

8

MR. BARRIS: I assume your Honor is denying

the motion?

THE COURT: I’m denying the motion. I’m going

to tell the jury there is no obligation for anyone to

sign the form without indicating what the form is.

MR. BARRIS: Thank you, your Honor.

The jury was then recalled and the district court

instructed it that “there is absolutely no obligation or

requirement that any person sign the form which the

witness just referred to. There’s no obligation on him or

requirement, at all, that he sign any such form” (id. at

71a).

Contrary to petitioner’s argument (Pet. 14-16), the

agent’s brief remark (A. 68a) that petitioner was “given a

waiver of rights sheet which he read over and he refused

to sign it” did not deprive petitioner of a fair trial. While

petitioner is correct in stating that Doyle v. Ohio, 426

U.S. 610, and United States v. Hale, 422 U.S. 171, forbid

the government from discrediting the defendant’s trial

testimony with evidence of his silence at the time of arrest

(and after having received Miranda warnings), we submit

that those cases are inapposite here, where the testimony

to which petitioner objects was not deliberately elicted by

the government attorney and was not used to establish

any material element of the prosecution’s case or to

impeach his own testimony (petitioner did not testify at

trial). Nor does Griffin v. California, 380 U.S. 609,

forbidding comment on the defendant’s exercise of his

Fifth Amendment privilege, require reversal here. The

agent’s testimony about petitioner’s refusal to sign the

waiver form amounted to no more than one isolated,

inadvertent remark that, when taken in the context of the

entire trial—which included evidence of petitioner’s

possession of the marihuana, cocaine, and amphetamines

9

found in his house, as well as the district court's

immediate curative instruction—was harmless beyond a

reasonable doubt. See Milton v. Wainwright, 407 U.S.

371.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapDE H. McCree, Jr..,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Feit,

ANN T. WALLACE,

Attorneys.

DECEMBER 1977.

DOJ.1977-12