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INDEX

Opinions below *

Jurisdiction ~~. a

Questions presented

Statement * *

Argument a nm

Conclusion *

Cases:

Brinigar v. United States, 338 U.S. 160

Chambers v. Maroney, 399 U.S. 42_------

Cooper v. California, 386 U.S. 58

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

Opper v. United States, 348 U.S. 84

Schaffer v. United States, 362 U.S. 511

Smith v. United States 288 Fed. 259

United States v. Aloi, 511 F. 2d 585, cer-

tiorari denied, 423 U.S. 1015——

United States v. Bragan, 499 F. 2d 1376

United States v. Cervantes, 466 F. 2d 736,

certiorari denied, 409 U.S. 886.....-----

United States v. Chadwick, No. 75-1721,

decided June 21, 1977——

United States v. Ehrlichman, 546 F. 2d 910,

certiorari denied, 429 U.S. 1120———

United States v. Hall, 521 F. 2d 406___---

United States v. Hutul, 416 F. 2d 607, cer-

tiorari denied, 396 U.S. 1012———

United States v. Perez, 489 F. 2d 51, cer-

tiorari denied, 417 U.S. 945 23

(1)

2

S

0 E D D o ee

—

—

—

—

Cases—Continued

United States v. Peterson, 524 F. 2d 167,

certiorari denied, 424 U.S. 925

United States v. Sarvis, 523 F. 2d 1177.

United States v. Tramunti, 513 F. 2d 1087,

eerxtiorari denied, 423 U.S, 832

United States v. Valencia, 492 F. 2d 1071

Constitution, statutes, and rules:

United States Constitution, Fourth Amend-

18 U. 8. C. . — w

21 U.S.C. 881 (a) (4222 ‘i

21 U.S.C. 888(h) (4022 1

SuS.

u

Rule 7(e) (2), Fed. R. Crim. P. An

Rule 48 (a) Fed. R. Crim, P

tat

8

—

e te o o de do te

N sr open dam of he de a.

OcroseR TERM, 1977

No. 77-314

CHESTER PAUL SWONGER, ET AL., PETITIONERS

V.

Unirep 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

OPINIONS BELOW

The orders of the court of appeals affirming peti-

tioners’ convictions (Pet. App. 45-46) and denying

a petition for rehearing (id. at 47-48) and the opin-

ions of the district court (id. at 35-40, 41-44) are not

Wm ee

JURISDICTION

The judgment of the court of appeals was entered

on June 21, 1977. An untimely petition for rehearing

was denied on July 28, 1977. The petition for a writ of

certiorari was filed on August 26, 1977, and is there-

fore out of time under Rule 22(2) of the Rules of

[.) f

2

this Court. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

| | QUESTIONS PRESENTED

1. Whether the warrantless, probable cause search

of the trunk of petitioners’ automobile violated the

Fourth Amendment.

2. Whether the district court erred in denying peti-

tioners’ motions for a severance.

STATEMENT

Following a jury trial in the United States District

Court for the Middle District of Tennessee, peti-

tioners were convicted of possession and concealment

of two altered federal obligations, in violation of 18

U.S.C. 472 and 2. Petitioners Pierce and Swonger

were sentenced to six and five years’ imprisonment,

respectively. Petitioner Farmer’s sentence of five

years’ confinement under the Youth Corrections Act

was suspended in favor of five years’ probation. The

vehicle used to transport the altered obligations, in

violation of 49 U.S.C. 781, was forfeited under 49

U.S.C. 782. The court of appeals affirmed the convie-

tions and forfeiture (Pet. App. 45-46).

The evidence at the hearing on petitioners’ suppres-

sion motions showed that on October 9, 1975, Dr. John

Wilkison, a physician in Springfield, Tennessee, in-

formed Agent Don Birdwell of the Federal Bureau of

Investigation that he had made an appointment with

a man named Fred Fisher for the following morning,

at which time Fisher would introduce a friend who

3

wanted to sell stolen diamonds to Wilkison. On a prior

occasion, in May 1975, Fisher had contacted Dr.

Wilkison about a large quantity of stolen coins that

he had for sale, but the doctor had declined the offer

because he had been unable to contact Agent Bird-

well. Following his receipt of information about the

stolen diamonds, Agent Birdwell equipped the X-ray

room of Dr. Wilkison’s office with electronic surveil-

lance devices (1 Tr. 60-66).

At approximately 9:30 a.m. on October 10, Fisher,

accompanied by petitioner Pierce, arrived at Dr. Wil-

kison’s office. Petitioner Pierce showed Dr. Wilkison

four diamonds that appeared to Wilkison to be worth

at least $75,000. Petitioner Pierce stated that he

wanted $20,000 for the stones and that they had been

stolen years ago” and “‘[t}housands of miles away”

and were perfectly safe.” Dr. Wilkison told peti-

tioner Pierce that he would like to have a gemologist

appraise the diamonds, but Pierce and Fisher instead

left with the stones, assuring Wilkison that they

would return whenever the doctor had made arrange-

ments with his expert. The two men were then fol-

lowed by police officérs who had been present in one

of Dr. Wilkison’s offices during the negotiations and

had overheard parts of the discussions (1 Tr. 66-69,

2000

Outside Dr. Wilkison's office, Agent Bill Vest of the

Tennessee Bureau of Criminal Investigation observed

Tr. refers to the transcript of the proceedings on the motions

to suppress (Vol. 1) and at trial (Vol. 2). |

4

Fisher and petitioner Pierce depart, enter a truck,

and drive to a cafe. Twenty minutes after their arrival

at the cafe, Fisher reentered the truck and proceeded

toward Springfield. Agent Vest followed the vehicle

to a location near the sheriff’s office, where Fisher

parked. While Agent Vest kept the truck under sur-

veillance, he received information that police officers

had observed a man fitting petitioner Pierce’s descrip-

tion driving toward Nashville in a brown Buick

with Arkansas license tags (1 Tr. 12-15, 70).

At about noon, Agents Vest and Birdwell saw

Fisher again enter the truck, this time to drive to a

restaurant, where he was joined by Curtis Mott and

petitioner Pierce, who had arrived in a brown Buick.

After the three men had left the restaurant, petitioner

Pierce got into the Buick and proceeded toward

Nashville at speeds from 50 to 80 miles per hour,

eventually stopping at a motel. Approximately 15 to

30 minutes after petitioner Pierce had entered the

motel, police officers observed him emerge with peti-

tioners Swonger and Farmer and another man, later

identified as Don Wisdom (1 Tr. 16, 19-21, 24, 70-73).

Petitioners placed several pieces of luggage into

the Buick and drove off toward Interstate 40 west,

followed by police surveillance teams. After trailing

petitioners for some distance, Agents Birdwell and

Vest stopped the vehicle and asked the oecupants to

get out of the car. As the passenger door opened,

— 5

Agent Birdwell spotted a device for smoking mari-

huana on the floor of the vehicle and two marihuana

cigarettes in an ashtray. Agent Vest immediately ar-

rested petitioners for possession of marihuana, ‘in vio-

lation of Tennessee state law. He then opened the

trunk of the vehicle and discovered that it was filled

with suitcases, clothes and various implements used

in making counterfeit money (1 Tr. 21, 26-28, 31, 75).

Agent Vest determined that he would be unable to

make a proper search of the trunk while the vehicle

was on the road. He therefore transported the car to

the Dickson County Sheriff’s office, where a thorough

search of the trunk revealed a General Motors Accept-

ance Corporation payment book in the name of G. W.

Pierce, which contained a $100 federal reserve note

and a $10 note, a map containing $100 and $10 notes

bearing the same serial numbers as the two previously

found bills, and a plastic bag containing four stones

that looked like diamonds but were later found not to

be genuine (1 Tr. 28, 31-34, 47).

ARGUMENT

1. Petitioners contend (Pet. 25-29) that Agent

Vest’s search of the automobile and seizure of the

altered currency and stones violated the Fourth

Amendment.

a. Although petitioners concede that petitioner

Pierce’s attempted sale of “stolen diamonds” un-

doubtedly” gave the police officers probable cause to

arrest and search Pierce (Pet. 28), they claim that the

probable cause had dissipated by the time of their

arrests and the search of their automobile five hours

later, because the officers’ surveillance of petitioner

Pierce had been interrupted and there was

no longer any reason to believe he had the dia-

monds * * (ibid.). After a thorough review of the

record, however, the district court concluded that “the

officers had probable cause to search [petitioners’]

automobile for stolen diamonds at the time the car was

stopped on the interstate highway” (Pet. App. 39),

and the court of appeals agreed (id. at 45). This find-

ing is correct and does not warrant further review.

The evidence showed that police officers had re-

ceived a tip from Dr. Wilkison that Fisher and

another man, later identified as petitioner Pierce,

would be coming to Wilkison’s office to sell him

stolen diamonds. During the meeting, the officers over-

heard conversations about stolen diamonds and a

purchase price of $20,000, confirming Dr. Wilkinson's

information (1 Tr. 84-85). These circumstances, as

petitioners acknowledge, established probable cause

to believe that petitioners were engaged in an at-

tempted sale of stolen property, in violation of state

law, and that petitioner Pierce was in possession of

the property. The fact that the officers lost sight of

petitioner Pierce for two hours during their surveil-

lance does not significantly alter this conclusion.

Although, as petitioners observe, this gap meant that

Officer Vest could not know with certainty whether

~ 7

petitioner Pierce still had the diamonds in his control

at the time of the arrests and search, the Fourth

Amendment required only that.the officer have a

reasonable belief that a erime had been perpetrated

and that Pierce and his companions were involved in

that crime. Brinegar v. United States, 338 U.S. 160,

174-175. Moreover, in view of the fact that petitioner

Pierce was driving an out-of-state vehicle and that he

and the other men had been observed loading a num-

ber of suitcases into the vehicle in front of their motel,

the officers had additional grounds to suspect that the

diamonds were in the car.

b. Petitioners’ claim that a warrant was required

because the officers had sufficient time to obtain one

is also incorrect. This Court has long “recognized sig-

nificant differences between motor vehicles and other

property which permit warrantless searches of auto-

mobiles in circumstances in which warrantless

searches would not be reasonable in other contexts.

United States v. Chadwick, No. 75-1721, decided

June 21, 1977, slip op. 10.’ Although this distinction

has been based in part on [an automobile's] inherent

mobility, which often makes obtaining a judicial war-

rant impracticable,’ it has also, and more signifi-

cantly, been based upon “the diminished expectation

of privacy which surrounds the automobile” (ibid.).

Since the search in this case was supported by prob-

able cause, it was reasonable for the officers to proceed

? Chadwick, unlike the present case, did not involve the automo-

bile search exception to the warrant requirement. *

8

without a warrant. Chambers v. Maroney, 399 U.S.

42, 48-52.“

2. Petitioners contend (Pet. 30-33) that the district

court’s denial of their motions for a severance de-

prived them of their rights to be represented by coun-

sel of their choice and to obtain a speedy trial. Peti-

tioners also assert that the ruling denied them a fair

trial, because evidence admitted at. their joint trial

would not have been admissible at separate trials.

These claims are insubstantial.

Considerations of judicial economy and the public

interest underlie the settled principles that defend-

ants jointly indicted should be tried together except

for the most compelling reasons (see United States v.

Ehrlichman, 546 F. 2d 910, 929 (C. A. D. C.), certiorari

denied, 429 U.S. 1120; United States v. Peterson, 524

F. 2d 167, 182 (C. A. 4), certiorari denied, 424 U.S.

925; United States v. Perez, 489 F. 2d 51, 65 (C.A. 5),

certiorari denied, 417 U.S. 945; United States v. Cer-

vantes, 466 F. 2d 736, 739 (C. A. 7), certiorari denied,

409 U.S. 886) and that the grant or denial of a

severance is addressed to the sound discretion of the

district court. Schaffer v. United States, 362 U.S.

511, 514-517; Opper v. United States, 348 U.S. 84, 95.

Petitioners have failed to advance sufficient reasons

why they should not have been tried together and

* Indeed, since the officers spotted a controlled substance in the

car at the time of petitioners’ arrest, the vehicle was properly

seized for forfeiture (21 U.S. C. 881 (a) (4), 881(b) ()) and was

subject to a warrantless search under Cooper v. California, 386

US. 58.

9

have failed to demonstrate an abuse of discretion on

the part of the district court.

a. Following the denial. of the severance motions,

3 petitioners’ counsel (who represented them jointly)

informed the court that he believed there was a possi-

bility of a conflict of interest, especially if the court

ruled that evidence of the attempted sale of the dia-

monds by petitioner Pierce was admissible at the

trial of all petitioners (1 Tr. 225-226). The court re-

sponded that it was “going to let that evidence in“

(1 Tr. 229), but it agreed that, since two of the peti-

tioners were mere passengers in the vehicle and the

proof of possession as to them may be less convincing,

defense counsel might have a conflict (1 Tr. 228). The

court therefore granted a continuance to allow peti-

tioners’ counsel to settle the conflict problem.

One week later, the court held a hearing, at which

each petitioner submitted a written request to be

jointly represented by defense counsel despite the

possible prejudice from such representation (1 Tr.

240). The court remarked that it viewed petitioners’

: requests as an attempt to force reconsideration of

their motions for a severance, which it would refuse

to do (1 Tr. 240-241). It also informed petitioners

that their actions, which were knowing and voluntary,

would constitute a waiver of their right subsequently

to raise a conflict of interest claim (1 Tr. 241). After

petitioners acknowledged that they understood these

| consequences, the court stated (1 Tr. 246):

I will give it some thought, but I will tell

Jou, gentlemen, I believe we have a conflict

10

here, and T don't think that I have the consti-

~ tutional right to tell a man he cannot hire

somebody.

If that lawyer is willing to accept employ-

ment, and I am not passing on that question,

Mr. Branstétter [defense counsel], you under-

stand that. I don't give you any shields down

bere and I don’t cloak you with any authority.

1 L think I have stated on the record before

and I stated again that I think there is an

- inherent conflict, and if you represent all three

of these people, I think you are in a very

peculiar position, and so that’s all I am going

to say „ „„

Two days thereafter defense counsel declined to rep-

resent any of the petitioners.

Petitioners claim that this chain of events, begin-

ning with the district court’s evidentiary ruling and

its denial of a severance, denied them the right to

counsel of their choice. But a defendant’s right to a

particular attorney is not absolute and “cannot be

insisted upon in a manner that will obstruct an or-

derly procedure in courts of justice, and deprive such

courts of the exercise of their inherent powers to

control the same.” Smith v. United States, 288 Fed.

259, 261 (C. A. D. C.). Moreover, petitioners’ eonelu-

sion falls with its premise. A severance is not re-

quired simply because some of the evidence intro-

dueed at a joint trial may not relate to a particular

defendant. United States v. Aloi, 511 F. 2d 585, 598

599 (C. A. 2), certiorari denied, 423 U.S. 1015; United

States v. Hutul, 416 F. 2d 607, 620 (C. A. 7), certio-

rari denied, 396 U.S. 1012. Here, the jury was prop-

11

erly instructed (2 Tr. 74, 80, 280-281) to apply the

evidence of the diamond transaction only against

petitioner Pierce. See Opper v. United States, supra,

348 U.S. at 95. Nor do petitioners contend that they

were inadequately represented at trial.‘ In these cir-

cumstances, the public interest in a joint trial out-

weighed the speculative concern that evidence of the

attempted diamond sale would prejudice petitioners

Swonger and Farmer. Indeed, petitioners recognized

as much at trial, in seeking to waive any claim of a

conflict of interest.“

b. On March 31, 1976, petitioners’ newly retained

counsel informed the court that, in preparing a re-

sponse to a civil forfeiture complaint against the auto-

mobile that had been seized at the time of petitioners’

arrest, they had discovered that Rule 7(c)(2), Fed.

R. Crim. P., required the pleading to set forth, as

part of the indictment in the criminal proceeding, the

interest of any defendant in the property subject to

forfeiture (1 Tr. 252). The court was also informed

that a recent Ninth Circuit decision“ required dis-

*The quality of representation received by a defendant from

substitute counsel is a primary consideration in determining

whether a trial judge abused his discretion in denying a severance

or continuance in order to enable the defendant to be represented

by counsel of his choice. United States v..Tramunti, 513 F. 2d

1087, 1116-1118 (C. A. 2), certiorari denied, 423 U.S. 832; United

States v. Bragan, 499 F. 2d 1376, 1379-1380 (C. A. 4).

As noted above, the trial court expressly acknowledged that

it could not tell petitioners whom they could hire and that it

would not order defense counsel not to continue to represent peti-

tioners jointly.

* United States v. Hall, 521 F. 2d 406 (C. A. 9).

12

missal of an indictment that failed to set forth such

interest (1 Tr. 253). The government immediately

asked for a continuance in order to obtain a super-

seding indictment and “to keep all of the defendants

under their present bond” (1 Tr. 261). After the court

denied the request, the government moved to dismiss

the indictment. The motion was granted (tbid.). A

superseding indictment charging petitioners with the

same offense, but adding a criminal forfeiture count,

was returned on April 12, 1976, and petitiuners’ 1

commenced on June 10, 1976.

Petitioners apparently contend (Pet. 32) that the

delay of two and a half months between the dismissal

of the original indictment and their trial on the super-

seding indictment denied them a speedy trial. The

delay in bringing petitioners to trial, however, was

short and was occasioned solely by their belated chal-

lenge to the indictment rather than by governmental

‘misconduct or indifference. See Harrison v. United

States, 392 U.S. 219, 221-222, n. 4; United States v.

Sarvis, 523 F. 2d 1177, 1183 (C. A. D.C.). Furthermore,

during the period in question petitioners were not

incarcerated, asserted their speedy trial rights in less

than vigorous fashion, and raised no substantial claim

of prejudice as a result of the delay.’

* Petitioners also contend that the district court erred in grant-

ing the government’s motion to dismiss the indictment in their

absence. Under Rule 48(a), Fed. R. Crim. P., however, a govern-

ment attorney “may by leave of court file a dismissal of an indict-

ment * * * and the prosecution shall thereupon terminate.” It is

only when a dismissal is sought during trial that it may not be

granted “without the consent of the defendant.” See United States

v. Valencia, 492 F. 2d 1071, 1074 (C. A. 9).

13

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Wave H. McCresz, Jr.,

Solicitor General.

BenJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEI,

ANN T. WALLACE,

Attorneys.

DECEMBER 1977.

U.S. GOVERNMENT PRINTING OFFICE: 1977