Opposition — Bracy v. United States

INDEX

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CITATIONS

Cases:

Blumenthal vy. United States, 332 U.S. 539 ....... 11

Brown v. United States, 411 U.S. 223 ........ 13, 14

Chambers v. Maroney, 399 U.S. 42. .......60...006 14

Kotteakos v. United States, 328 U.S. 750 .......... 12

Schneckloth v. Bustamonte, 412 U.S. 218 ......... 13

I EM, ssa so scennsnnsssssssvenect 14

United States v. Agurs, 427 U.S. 97 oo. 10

United States v. Baldarrama, 566 F. 2d 560 ..... 11

United States v. Basurto, 497 F. 2d 781 ............. 9

United States v. Bowers, 534 F. 2d '86,

certiorari denied, 429 U.S. 942 oo... eee 9

United States v. Canada, 527 F. 2d 1374,

certiorari denied, 429 U.S. 867 ........... 4, 13, 14

United States v. Davis, 482 F. 2d 893 «0.0.0.0... 13

United States v. Duvall, 537 F. 2d 1S ............... 15

United States vy. Guerrera, 554 F. 2d 987 .......... 13

Page

Cases—continued:

United States v. Guillette, 547 F. 2d 743,

certiorari denied, No. 76-6615 (October

5 2 eee Lee 4

United States v. Gurley, 549 F. 2d 809 .............. 3

United States v. James, 528 F. 2d 999,

certiorari denied sub nom. Henry v. United

FE OS OR il

United States v. Miner, 484 F. 2d 1075 ........... 13

United States vy. Prueitt, 540 F. 2d 995,

certiorari denied sub nom. Petersen

v. United States, 429 U.S. 1063 ..................... 13

United States v. Rundle, 383 F. 2d 421,

certiorari denied sub nom.

Almeida v. Rundle, 393 U.S. 863 .................0.. )

United States v. Tuley, 546 F. 2d 1264,

certiorari denied, No. 76-6380 (October

Ti GEUEE. ‘sidiekesseadnibhenesitietiiadenigeddtiaiasiimpeemadzanenecss 14

United States v. Welsh, C.A. 9, Nos.

75-3000 and 75-3001, decided May

i a te 4

United States v. Word, C.A. 9, No. 76-3487,

decided March 31, 1977, certiorari

ME 8! Se 3

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Statutes and rules—continued:

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Federal Rules of Criminal Procedure:

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In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1360

BoveR ALFREDO BrRACY and SANDRA DENISE MARTIN.

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 57a-77a)

is reported at 566 F. 2d 649.

JURISDICTION

The judgment of the court of appeals was entered on

December 23, 1977. A_ petition for rehearing and

suggestion for rehearing en banc was denied on February

28, 1978 (Pet. App. 78a-79a). The petition for a writ of

certiorari was filed on March 24, 1978. The jurisdiction

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

(1)

QUESTIONS PRESENTED

|. Whether the trial judge erred in failing sua sponte to

declare a mistrial in order to dismiss the indictment when

he learned that a government witness committed perjury

before the grand jury.

2. Whether the evidence established multiple con-

spiracies rather than a single conspiracy.

3. Whether evidence seized from a co-conspirator’s

suitcase and incidental to petitioner Bracy’s arrest was

inadmissible.

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of California, petitioners

were convicted of conspiring to import heroin and cocaine

and importing heroin, in violation of 21 U.S.C. 952, 960,

and 963; conspiring to possess heroin and cocaine with

intent to distribute and possessing the heroin with intent

to distribute, in violation of 21 U.S.C. 84l(a)(1), 846.

Petitioner Bracy (hereafter A. Bracy) was sentenced to 15

years’ imprisonment, to be followed by a 20-year special

parole term, and fined $25,000. Petitioner Martin was

sentenced to three years’ imprisonment, to be followed

by a special parole term of five years. The court of

appeals affirmed (Pet. App. 57a-77a).'

'Four other persons were indicted, and tried on all counts. Juanita

Louise Kendricks, petitioner A. Bracy’s mother, and Brenda Bracy,

petitioner A. Bracy’s sister, were tried jointly with petitioners.

Kendricks was acquitted. Brenda Bracy was convicted on all counts

and sentenced to five years’ imprisonment followed by a five-year

special parole term. The court of appeals affirmed. /bid. Stephanie

Marie Gurley (hereafter Gurley) and Jerry Word (hereafter Word)

were also convicted of the conspiracy and substantive counts follow-

ing separate trials. Gurley was sentenced to seven years’ imprison-

ment to be followed by a ten-year special parole term; Word was

Briefly, the government's evidence demonstrated the

existence of a continuing enterprise to smuggle heroin and

other illicit drugs across the Mexican border and

transport them to the Detroit, Michigan area. As the .

court of appeals observed, petitioner A. Bracy “was the

catalyst around whom the overall web of conspiracy was

spun” (Pet. App. 63a). Petitioner Martin, as well as

co-defendants Brenda Bracy, Gurley, Word, and several

other co-conspirators, were active participants in the

scheme. The nature and scope of the conspiracy was

established through evidence which showed the con-

spirators’ involvement in a series of related incidents

whose objective was the procurement, importation, and

transmission of heroin and cocaine.

1. On February 16, 1975, petitioner A. Bracy and

Margaret Canada approached a baggage-security check

point at the Detroit Metropolitan Airport. An airline

security guard placed Canada’s suitcase onto a conveyor

belt that led to an X-ray machine. Thereafter a second

security guard indicated that she would have to open it

for further visual inspection. A. Bracy asked “why,” and

the guard explained that she couldn't identify an object

inside. After waiting approximately five seconds without

hearing any objection from either A. Bracy or Canada,

the guard opened the suitcase and observed a large

amount of cash (I Tr. 81-91, 117, 133; Pet. App. 36a).?

sentenced to ten years’ imprisonment to be followed by a ten-year

special parole term. The court of appeals also affirmed these

convictions. United States v. Gurley, 549 F. 2d 809 (C.A. 9); United

States v. Word, C.A. 9, No. 76-3487, decided March 31, 1977,

certiorari denied, 43! U.S. 942.

*The abbrevation “Tr.” refers to the trial transcript and the

abbreviation “M. Tr.” refers to the motion transcript. The volume

number precedes the abbreviation, and the page number follows it.

4

Canada then boarded a plane bound for San Diego, Cali-

fornia, w.ch the suitcase. The guard reported her dis-

covery to a local Drug Enforcement Administration

(DEA) agent, who ran a routine check on petitioner A.

Bracy and found that he had a long history of narcotics

violations (11 M. Tr. 33).

After authorities in San Diego were notified, they

established surveillance on Canada. Canada was met at

the airport by Clarence Turner and Anne Welsh, and the

trio rented a room in San Diego. On the following

morning Turner and Welsh placed an empty duffel bag in

an automobile rented by Welsh and drove to Tijuana,

Mexico. When they returned, objects were clearly

discernible at the bottom of the duffel bag. Shortly after

their return to the motel, the duffel bag and the suitcase

in which Canada had transported the money from

Detroit were hurriedly placed in the trunk of the car.

Canada, Turner, and Welsh then drove north at a high

rate of speed. The automobile was stopped by surveilling

agents who asked Welsh whether she would object to a

search of the vehicle and its contents for contraband. She

replied, “No, 1 don’t.” During the ensuing search the

officers found four pounds of heroin and one pound of

cocaine in the suitcase (Il M. Tr. 135-165).

‘Canada, Turner, and Welsh were named in the indictment as

previously indicted co-conspirators (Pet. App. 10a). All three were

convicted of conspiracy to possess heroin and cocaine and of

possessing heroin and cocaine with intent to distribute them in

violation of 21 U.S.C. 841(aX 1), 846. Canada was sentenced to five

years’ imprisonment to be followed by a 15-year special parole

term. The court of appeals affirmed. United States v. Canada, 527 F.

2d 1374 (C.A. 9), certiorari denied. 429 U.S. 867. Welsh was

sentenced to three years’ imprisonment and Turner to five years’

imprisonment, both sentences to be followed by ten-year terms of

special parole. The court of appeals also affirmed these convictions.

United States vy. Welsh, C.A. 9, Nos. 75-3000 and 75-3001, decided

May 25. 1976.

2. Shortly before Christmas, 1975, James Howard

Porter, an unindicted co-conspirator (Pet. App. 9a) who

had been employed by petitioner A. Bracy, and one.

Lomas, who had been a construction supervisor at A.

Bracy’s home, established a residence in Los Angeles,

California. Early in 1976, A. Bracy visited their apartment

and gave Porter and Lomas money to buy undergarments

to conceal narcotics. When Lomas and Porter obtained

the clothing, all three went to San Diego, where Porter

rented a motel room. While Lomas remained in the room,

A. Bracy and Porter went to Tijuana (VI Tr. 915-919).

There they met Manuel Banagas (Manning) who was

given a briefcase by petitioner Bracy. Porter was

instructed to remain at the Tijuana Ramada Inn and give

a set of car keys to Manning upon his arrival (III Tr. 454-

458).

Afterwards, Porter returned to San Diego, where he

telephoned Lomas and was advised that Lomas, Brenda

Bracy, and her children would be traveling to San Diego.

Lomas instructed Porter to wait for Brenda Bracy in

Tijuana. Upon her arrival in Mexico, Brenda Bracy called

Manning, who came to her hotel room with the car keys

previously given him by Porter. Brenda Bracy then left

the room and returned with several bags of heroin and

cocaine mixed in two bags of baby clothing. Brenda Bracy

and Porter agreed that she would srauggle the heroin

across the border and he would cross with the cocaine

(L111 Tr. 459-464).

Brenda Bracy, Porter, and Lomas subsequently met in

Los Angeles and agreed that Porter should transport the

narcotics to A. Bracy’s home near Detroit. Porter

departed that night for Detroit but, upon arrival, became

suspicious that he would not be paid for his assistance in

the venture. He left the heroin and flew back to Los

Angeles keeping the cocaine as security. After he returned

to Los Angeles, Porter was questioned by petitioner

Martin, Brenda Bracy, and Canada as to his reasons for

retaining the cocaine, and they tried to convince him to

surrender it (III Tr. 466-478; Pet. App. 6la). He did

so only after being paid by petitioner A. Bracy (Ill Tr.

480; Pet. App. 61a).

4. In mid-March, 1976, Porter was contacted by

petitioner Martin and informed that A. Bracy was coming

to Los Angeles and wanted Porter to “do something for

him.” Both petitioners and Word met with Porter at his

apartment to organize the continuation of the smuggling

effort (111 Tr. 485-488; Pet. App. 61a). After Porter was

given money by A. Bracy to purchase a girdle for smug-

gling purposes, Porter left for Tijuana, Mexie~, where he

checked in at the Ramada Inn. Both petitioners and Word

subsequently arrived at the hotel restaurant, and Porter

gave his room number to them. Two hours later

petitioners and Word arrived at Porter's room bringing

two kilos of heroin. Porter was assigned to smuggle the

heroin across the border in his girdle and tried various

means of concealing the heroin on his person while both

petitioners commented upon whether it could be observed

under his clothing. Porter then flew back to Los Angeles

and returned to his apratment. A. Bracy arrived at

Porter's apartment, took the heroin, and paid Porter

$1,000 for his efforts (II] Tr. 490-498; Pet. App. 62a).

On March 20, 1976, A. Bracy again instructed Porter to

go to the Ramada Inn in Tijuana. Porter did so, but when

A. Bracy failed to arrive, he returned to Los Angeles (1V

Tr. 505-507; Pet. App. 62a). The same day Word, accom-

panied by A. Bracy, borrowed a car from one Debra

Gillenwater. Thereafter, Word and petitioner Martin

registered in separate rooms at the Tijuana Ramada Inn

(VI Tr. 796; IX Tr. 1305-1310). The next morning Martin

em

called Porie;, and A. Bracy inquired as to why Porter was

not in Tijuana. He instructed Porter to return there

immediately. Several hours later Martin again called

Porter to inquire why he had not left for Mexico. Porter

went to the airport but missed his flight and phoned A.

Bracy to inform him of this. A. Bracy then told Porter to

forget about coming to Tijuana (1V Tr. 505-511; Pet. App.

62a-63a). On that same day, the automobile borrowed by

Word from Debra Gillenwater was driven by Gurley

across the San Ysidro port of entry. Inspection of the

vehicle at the border revealed the presence of narcotics

(il Tr. 197-225; Pet. App. 63a).

ARGUMENT

1. Petitioners contend (Pet. 8-13) that the trial judge

erred in failing to declare a mistrial sua sponte and dis-

miss the indictment when the fact that perjured testi-

mony had been presented to the grand jury became

apparent during trial.

The relevant facts are that James Howard Porter was

served with a grand jury subpoena on April 6, 1976 (IV

Tr. 512), and, within a week, he phoned A. Bracy de-

manding $25,000 for his silence (IV Tr. 526). Although

protesting innocence, A. Bracy referred him to Detroit.

Later, another witness received an envelope from Bracy

which apparently contained money tu pay Porter's legal

fees (Pet. App. 63a).

On April 14, 1976, Porter appeared before the grand

jury and falsely testified that he had stopped working for

A. Bracy in November 1975, had only seen him once since

then, and that A. Bracy had suggested that he engage in

drug smuggling and he had refused to do so. Approxi-

mately ten days later Porter informed DEA agents that he

had perjured himself before the grand jury (Pet. App.

63a). On April 28, 1976, when DEA Agent Lunsford

testified before the grand jury, he specifically informed it

that Porter admitted to him that he had been involved in

the smuggling operation and delineated the scope of

Porter’s involvement in it (Ct. Exh. B). Porter did not

reappear before the grand jury, and neither the court nor

opposing counsel was immediately informed of the per-

jury. By May 26, 1976, however, petitioners had received

the investigating officer's reports containing Porter's ad-

mission to Lunsford that he had lied to the grand jury,

and, the day before the trial began (August 10, 1976), the

grand jury testimony of Porter, Lunsford, and others was

made available to petitioners (Pet. App. 64a).

At trial Porter admitted that he perjured himself before

the grand jury (e.g., 1V Tr. 543). At that point petitioners

moved to dismiss the indictment due to the government's

failure specifically to notify the grand jury, the court, and

defense counsel of the perjury. The motion was denied,

although the trial judge offered to entertain a mistrial

motion which would not preserve petitioner's double

jeopardy defense. Petitioners refused to waive any double

jeopardy defense by moving for a mistrial, and the trial

court refused to follow petitioners’ suggestion that he

grant a mistrial sua sponte (VI Tr. 779-784; Pet. App.

4Sa-52a).

It is clear that the trial judge did not err in refusing to

declare a mistrial or dismiss the indictment. As Mr.

Justice Rehnquist explained in denying petitioners’

motion for a stay in this case:

[I]t seems to me that applicants misconceive the

function of the grand jury in our system of criminal

justice * * *. The grand jury does not sit to deter-

mine the truth of the charges brought against a de-

fendant, but only to determine whether there is

probable cause to believe them true, so as to require

him to stand his trial. Because of this limited func-

tion, we have held that an indictment is not inval-

idated by the grand jury's consideration of hear-

say. Costello vy. United States, 350 U.S. 359 (1956),

or by the introduction of evidence obtained in viola-

tion of the Fourth Amendment. United States v.

Calandra, 414 U.S. 338 (1974). While the presenta-

tion of inadmissible evidence at trial may pose a

substantial threat to the integrity of that factfinding

process, its introduction before the grand jury poses

no such threat. I have no reason to believe this Court

will not continue to abide by the language of Mr.

Justice Black in Costello, supra, at 363: “An indict-

ment returned by a legally constituted and unbiased

grand jury, like an information drawn by the prose-

cutor, if valid on its face, is enough to call for trial of

the charge on the merits.” The Fifth Amendment

requires nothing more. [ Bracy v. United States, No.

A-798 (77-1360), March 29, 1978.]}

See also United States vy. Guillette, 547 F. 2d 743, 755

(C.A. 2), certiorari denied, No. 76-6615 (October 3, 1977);

United States vy. Rundle, 383 F. 2d 421, 423 (C.A. 3),

certiorari denied sub nom. Almeida v. Rundle, 393-U.S.

863. Here petitioners claim neith + that the indictment was

facially invalid nor that the grand jury was illegally

constituted.

United States v. Basurto, 497 F. 2d 781 (C.A. 9), upon

which petitioners rely, is not to the contrary. The court of

appeals construed its opinion in Basurto to require

dismissal of the indictment for failure to disclose perjury

only where the perjured testimony is material (Pet. App.

67a). See also United States v. Bowers, 534 F. 2d 186, 193

(C.A. 9), certiorari denied, 429 U.S. 942. Here the court

of appeals correctly found that Porter's testimony was

immaterial to the return of the indictment (Pet. App. 65Sa-

67a) because it did not affect petitioners’ culpability and,

10

moreover, it was obvious that the grand jury, which was

also presented Lunsford’s testimony that Porter had ad-

mitted participation in the scheme, disbelieved Porter's

claim of ignorance (Pet. App. 66a, 69a).4

In sum, as the court of appeals noted, “defense counsel

were aware or should have been aware of the alleged

perjury before trial * * *,°5 the perjury was immaterial

to the indictment, and the defense exhaustively explored

the question of perjury during-#ts_cross-examination of

Porter at trial (Pet. App. 71a). Petitioners therefore have

no basis for alleging that the prosecution's failure to

inform them specifically that Porter had committed

perjury before the grand jury could in any way have

affected their defense and warranted declaration of a

mistrial, particularlygbarring reprosecution of the charges.

2. Petitioners also claim (Pet. 12-19) that they were

prejudiced by improper joinder because the evidence

failed to show their participation in the February 1975

transaction resulting in the seizure of heroin and cocaine

from Margaret Canada and the March 20, 1976 incident

involving the seizure of heroin in an automobile driven by

‘Petitioners dispute the court's application of United States v.

Agurs, 427 U.S. 97, to the context of grand jury perjury (Pet. 26-27).

However, petitioners’ argument fails to recognize that the court relied

upon Agurs only in addressing the narrow question of the

prosecutor's duty of disclosing perjury to the defense. The Agurs

decision was not the basis for the court’s broader conclusion that

the grand jury need be informed of perjury only when the perjured

testimony is material.

‘Indeed, since petitioners were aware of the perjury before trial

their failure to move for dismissal at that time foreclosed any right to

move for dismissal of the indictment after jeopardy attached. Rule

12(b\ 2), Fed. R. Crim. P.

Stephanie Gurley. The court of appeals carefully re-

viewed the evidence in respect to these claims (Pet. App.

73a-75a) and noted that this case is controlled by the

principle that a single conspiracy can be demonstrated

by evidence showing “{eJach one of the defendants

knew or should have known that other retailers were

involved and that each had reason to believe that what

benefits he received were probably dependent upon the

success of the entire venture” (id. at 73a-74a). See also

Blumenthal vy. United States, 332 U.S. 539, 557. Accord-

ingly, for the reasons stated in the opinion of the court

of appeals, on which we rely, the evidence linking peti-

tioners to these transactions (Pet. App. 73a-75a) was

sufficient to establish one overall conspiracy.®

Petitioners’ additional contention (Pet. 17, 18-19) that

the trial judge erred by failing to instruct the jury that it

could find the existence of multiple conspiracies is

unfounded. The trial transcript reveals that the trial

judge instructed the jury as follows:

Although the indictment in this case charged a

single conspiracy, it would be possible to find

separate conspiracies, one relating to the Margaret

‘Petitioners also suggest (Pet. 28-29) that the court of appeals

improperly predicated the affirmance of their conspiracy convictions

on familial relationships and personal friendships. We agree that a

conspiracy conviction cannot rest exclusively upon evidence of as-

sociation with known participants, ¢.g., United States v. James, 528

F. 2d 999, 1014 (C.A. 5), certiorari denied sub nom. Henry v. United

States, 429 U.S. 959. Here, however, the decision of the court of

appeals is clearly based upon a review of independent evidence

demonstrating the petitioners’ efforts in furtherance of the smug-

gling scheme and not simply upon associations (Pet. App. 74a). The

court relied on petitioners’ relationships with other participants

only to demonstrate their familiarity with them and reinforce other-

wise fully sufficient evidence that each participant was familiar with

the overall scope of the scheme (Pet. App. 74a-75Sa). See United

Stuces v. Beldarrama, 566 F. 2d 560, 566 (C.A. 5). .

12

Canada incident in February of 1975 and the other

relating to the Stephanie Maria Gurley incident in

March 1976.

Whether there was one conspiracy or two con-

spiracies or no conspiracy at all is a fact for you to

determine in accordance with instructions. [XI Tr.

1680.]}

Moreover, as the court of appeals recognized (Pet. App.

75a), the trial judge fully protected petitioners from the

possibility of being convicted as participants in a

conspiracy with which they were not actually connected

by instructing further that the jury was not to consider

any act “against any defendant unless you find beyond

reasonable doubt that the person doing the act, making

the declaration, was a member of the same conspiracy

as was the defendant” (emphasis added) (XI Tr. 1680-

1681; Pet. App. 75a). See Kotteakos v. United States,

328 U.S. 750, 770-771.

3. Petitioners also argue that the narcotics seized

during the search of Canada's suitcase was inadmissible

due to the illegality of that search and of the aircraft

boarding search which preceded it (Pet. 14-15, 16, 23-25)

and that evidence seized pursuant to petitioner A. Bracy’s

arrest was inadmissible because improper procedures

were followed in procuring his arrest warrant (Pet. 20).

a. Petitioners lack standing to assert the invalidity of

the search of Canada’s suitcase, since neither petitioner

has ever claimed or sought to establish a proprietary

interest in the suitcase where the substances were dis-

covered’ or in the leased automobile. Moreover, they

"During the suppression hearing A. Bracy testified that the green

suitcase belonged to Canada and that he was unaware of its con-

tents and did not assist her in carrying it until after it left the con-

veyor belt and the security officer had inspected it (111 M. Tr. 259-

267). Accordingly. petitioner failed to establish standing to challenge

13

were not charged with possession of these narcotics,

which were introduced into evidence for the limited pur-

pose of establishing several of the overt acts alleged in

connection with the conspiracy offenses. See Brown v.

United States, 411 U.S. 223, United States vy. Guerrera,

554 F. 2d 987, 989-990 (C.A. 9).

In any event, these claims, which were rejected by the

court of appeals in United States v. Canada, 527 F. 2d

1374 (C.A. 9), certiorari denied, 429 U.S. 867, are without

merit. As the court found in Canada, the airport security

search was consensual since “ ‘the alternatives presented

to a potential passenger appraoching the screening area

are so self-evident that his election to attempt to board

necessarily manifests acquiescence in the initiation of the

screening process’ ” (527 F. 2d at 1378, quoting United

States v. Davis, 482 F. 2d 893, 914 (C.A. 9))j. In short,

consent was implicit from the totality of the circum-

stances. See Schneckloth vy. Bustamonte, 412 U.S. 218,

227: United States v. Miner, 484 F. 2d 1075, 1076 (C.A.

9); United States vy. Davis, supra, 482 F. 2d at 914."

the legality of the pre-flight search. See United States v. Prueitt,

540 F. 2d 995, 1005 (C.A. 9), certiorari denied sub nom. Petersen

v. United States, 429 U.S. 1063. Contrary to petitioners’ claim (Pet.

16 n. 4), the trial judge did not specifically resolve the standing

issue, but assumed the existence of standing in order to address

the merits of the legality of the airport search (see IV M. Tr. 19-20,

48, 65).

‘Petitioners’ contention (Pet. 22-24) that the court of appeals

decision in United States v. Canada, supra, conflicts with its earlier

decision in United States v. Davis, supra. is erroneous. In Davis the

court specifically found that pre-flight screening procedures and the

options available to potential passengers were not yet widely known.

Moreover, the record in Davis disclosed that the briefcase that was

subject to the search was taken from the defendant's hand and

opened before the defendant had the opportunity to do or think

14

Petitioner's challenge to the legality of the automobile

search is also insubstantial. It is readily apparent, and,

indeed, petitioners do not dispute, that after surveilling

the occupants for almost two days, the investigating

officers had probable cause to believe they were

transporting narcotics. United States v. Canada, supra,

527 F. 2d at 1377, 1379-1380. Moreover, as the auto-

mobile was fleeing from the scene of the drug purchase

transaction at a high rate of speed it was proper to

‘ seize and search the vehicle and its contents without a

warrant. Chambers v. Maroney, 399 U.S. 42, 52: see

Texas v. White, 423 U.S. 67, 68; United States v. Tuley,

546 F. 2d 1264, 1268 (C.A. 5), certiorari denied. No. 76-

6380 (October 3, 1977).

b. Petitioners’ final claim, that coded slips of paper

found on A. Bracy’s person during a search incident to his

arrest were inadmissible because his arrest was illegal, is

likewise without merit (Pet. 19-21).° Petitioners assert that

when the arrest warrant was issued on April 15, 1976, the

complaint supporting the warrant had not yet been

Prepared and sworn, since the date of the magistrate’s

attestation, which is not clearly legible, can be read as

April 16, 1976. This claim is without substance. The date

stamp on the complaint, as well as the minutes of the

United States District Court for the Southern District of

California (Pet. App. 21a; Record on Appeal |, 2), show

that both the complaint and DEA Agent Lunsford’s

anything. 482 F. 2d at 896 n. |, 914. It consequently declined to

find that the defendant implicitly consented to the pre-flight search.

These factors clearly were not present when C ,

prone p n Canada’s luggage was

*Of course, petitioner Martin lacks standing to assert the illegalit

of A. Bracy’s arrest and the ensuing search of his person. ye

Brown v. United States, supra.

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15

affidavit were filed with the court on April 15, 1976, and

that the affidavit was ordered sealed on that date.

Resolving the ambiguity resulting from the magistrate’s

illegible handwriting in the government's favor, it must be

concluded that the warrant was supported by a properly

executed complaint.

Moreover, even if it were assumed that the complaint

was not sworn until April 16, 1976, petitioner's claim is

insubstantial. As petitioners concede (Pet. 20), ule 4(a)

of the Federal Rules of Criminal Procedure provides that

“{i}f it appears from the complaint, or from an affidavit

or affidavits filed with the complaint, that there is prob-

able cause to believe that an offense has been committed

and that the defendant has committed it, a warrant for

the arrest of the defendant shall issue to any officer

authorized by law to execute it” (emphasis added). In-

deed, “{t}]here is no reason * * * why an arrest warrant

should * * * be predicated on a complaint rather than

simply an affidavit as in the case of a search warrant.”

United States v. Duvall, 537 F. 2d 15, 22 (C.A. 2). Here,

the DEA investigator's affidavit of April 15, 1976,

itself fully established a sufficient factual basis to support

issuance of the warrant.

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Wave H. McCree, Jr.,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

Joseru S. Davies, JrR..

Joun F. DePue,

Attorneys.

JUNE 1978.

DOJ-1974-06