Opposition — Rumpf v. United States

‘ . SEP 19 t97¢

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ie CHAM. RODAK, IR, CLERK. |

No. 78-93

Gun the Supreme Gourt of the Writed States

OctToBER TERM, 1978

JoHN RUMPF, ET AL., PETITIONERS

v.

Unirep States OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

‘STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, Jr.,

Solicitor General,

PHILIP B. HEYMANN,

Assistant Attorney General,

JEROME M. FEIT,

PATTY ELLEN MERKAMP, clig

Attorneys,

Department of Justice,

Washington, D.C. 20530.

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CITATIONS

Cases:

Abney v. United States, 431 U.S. 651_.___- 6, 10

Arizona v. Washington, 434 U.S. 497_.---- 11

Arthur Anderson & Co., 546 F. 2d 338____- 9

Brown v. United States, 411 U.S. 223____- 12

Carroll v. United States, 267 U.S. 1382____- 13

Chambers v. Maroney, 399 U.S. 42_------- 13

Coolidge v. New Hampshire, 403 U.S. 4438... 13

Gosa v. Mayden, 413 U.S. 665__...-.----- 8

Johnson v. New Jersey, 384 U.S, 719_----- 10

Jones v. United States, 362 U.S. 257_--__- 12

Linkletter v. Walker, 381 U.S. 618_..._._- 10

Moroyoqui v. United States, 570 F. 2d 862. 10

Roberts v. United States, 477 F. 2d 544____ 12

Robinson v. Neil, 409 U.S. 505_..---.----- 6,7

Ruby v. Secretary of United States Navy,

BE i i itbcetkint necnennonne 9

United States v. Bailey, 512 F. 2d 833____- 7

United States v. Barket, 530 F. 2d 181, cer-

tiorari denied, 429 U.S. 817_.--------~- 7

United States v. Beckerman, 516 F. 2d 905_ 7

(1)

Cases—Continued Pose

United States v. Cruz, 568 F. 2d 781_.-..~- 9

United States v. Dinitz, 424 U.S. 600.0... 11

United States v. Gentile, 530-F. 24 461, cer-

tiorari denied, 426 U.S. 936._--..-...... 12

United States v. Goldstein, 479 F. 2d 1061,

certiorari denied, 414 U.S. 873_....-__- 11-12

United States v. Jorn, 400 U.S. 470------. ‘11

United States v. Lansdown, 460 F. 2d 164__ 7

United States v. Peltier, 422 U.S, 531__--_- 7

United States v. Romano, 482 F. 2d 1183,

certiorari denied sub nom. Yasser Vv.

United States, 414 U.S. 1129___-_______ 11

United States v. Young, 544 F. 2d 415____ 7

Williams v. United States 401 U.S. 646___. 6, 7, 10

Constitution and Statute:

Constitution of the United States, Fourth

BEES TO 14

21 U.S.C, 841(a)(1)----_--- raat 2

Miscellaneous: 9 Moore, Federal Practice 737-

740 (2d ed. 1975) RS SESE Sepia 9

3h Sane nto he Wed Stat

Ocronen Tena, 1978.

No. 78-93 .

JoHN RuMpr, ET AL., PETITIONERS

v.

UnitTep STaTES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH OIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.)

is reported at 576 F’. 2d 818.

JURISDICTION

The opinion of the court of appeals (Pet. App.)

was entered on May 4, 1978. A timely petition for

rehearing was denied on June 8, 1978. Mr. Justice

White extended the time for filing a petition for a

writ of certiorari to and including August 7, 1978,

and the petition was filed on July 17, 1978. The ju-

risdiction of this Court is invoked under 28 U.S.C.

1254(1). a

1. Whether Abney v. United States, 431 -U.8. 651,

which was decided: while this case was pending on

appeal, requires that petitioners’ convictions be re-

versed because they sought to appeal from the court’s

order denying their motion to dismiss ‘the indictment

on double jeopardy grounds, ~ 3

2. Whether petitioners’ second trial was barred by

the Double Jeopardy Clause.

3. Whether marijuana seized near petitioner

Hanson’s rented ranch house should have been sup-

pressed on the ground that it was seized in violation

of the Fourth Amendment.

STATEMENT

After a jury trial in the United States District

Court for the District of New Mexico, petitioners

Rumpf, Hanson, and Masters were convicted of

possessing more than 1,900 pounds of marijuana with

intent to distribute it and of conspiring to commit

that offense, in violation of 21 U.S.C. 841(a)(1) and

846. Petitioner Griffin was convicted only on the

conspiracy charge (Pet. App. 8a). Masters and Han-

son were sentenced to concurrent terms of four years’

imprisonment on each count, to be followed by a spe-

cial parole term of four years. Rumpf was sentenced

to one year’s imprisonment on the possession count, to

be followed by two years’ special parole, and to five

years’ probation on the conspiracy count. Griffin was

sentenced to four years’ imprisonment on the con-

spiracy count, to be followed by a four-year term of

—— —_—-

3

special parole. The court of appeals affirmed, one

judge dissenting (Pet. App.; Br..3)..5 2 144

1; Early: on the morning of April 20; 1976, Dine

Enforcement. Administration agents received a tip

from a reliable source that a shipment of marijuana.

would: be arriving that evening on State Road 117

near Grants, New Mexico, by air frem Mexico (H,.

27; Tr. 229, .319-320).'. The agents then began sur-

- veillance of State Road 117, which is frequently used.

as a landing area for aircraft smuggling drugs into

this country from Mexico (H. 27, 65; Tr. 323). That

afternoon, the agents observed petitioner Rumpf enter

State Road 117 in a green Chevrolet; which they

recognized as having been involved in prior drug

smuggling ventures (H. 28; Tr. 231). Another group

of agents saw a blue Ford pick-up truck, pulling a

Starcraft collapsible camper trailer, enter the same

road. The blue pick-up truck was also known to have

been involved in airborne smuggling activities in the

past (Tr. 429, 582-533, 562-563).

Both vehicles remained on the ‘road all night (H.

29, 82; Tr. 233). At 7:00 the following morning the

green Chevrolet pulled out from State Road 117 and

turned east on Interstate 40. One group of agents

followed it (H. 29-30, 82; Tr. 233-234). Five minutes

later, the blue pick-up truck, which was being driven.

by petitioner Masters, appeared and proceeded in the

same direction, (H. 30; Tr. 349-350, 430). The camper

trailer attached to the pick-up truck now appeared to

1 “H.” refers to the hearing on petitioners’ motion to suppress.

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be heavily 1 pantl, as it was straying badly 6 én the road

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houise rented by’ petitioner Harison."When the first

pair of agents arrived at the ranch housd shortly

thereafter, one of them walked towards & shed some

distance from the housé, where Rumpf was standing

next to the camper trailer. The camper trailer was

still attached to the blue pick-up truck. As he ap-

proached, the’ agent saw several large cardboard boxes

and plastic garbage bags filled with bricks of’ mari-

juana in plain’ view in the open shed. Themarijuana

was exposed in some of the packages. The agent also

smelled a strong odor of marijuana emanatirig’ from

the camper trailer. He placed Rumpf under arrest

and searched the camper trailer, finding more than

1,900 pounds of marijuana inside it (H. 66, 69, 74-79,

83-85; Tr. 255-256, 354-374, 416-417, 435).

‘When the second pair of agents arrived at the ranch

house, they saw Hanson and Masters hurrying out

the front door of the house, apparently preparing to

drive off. The agents approached them and placed

them under arrest (H. 30-31; Tr. 239, 276-277). Two

of the agents were then sent to obtain a search war-

rant for the house (H. 32), and the other agents re-

mained on the premises until a search warrant was

obtained authorizing them to seize the marijuana and

search the house (Tr. 449-454, 246-250, 549-550).

Meanwhile, at 4:30 P.M., petitioner Griffin arrived at

the ranch and asked for Hanson. When told that she

was not there, Griffin volunteered that the trailers

were his. He was then arrested (H. 32-35, 86-88; Tr.

472).

°

2, Trial began on the mo of July 12, 1976. In

Lis opeting Certoadad 10" tha fers, tha vavetiolae

ferred to the physical evidence discovered by inveati-

gators during their searches of the ranch house and

shed. In the course of that discussion, he mentioned |

that two ayringes had been found in petitioner Han- .

son’s house (‘T'r. 177). After the prosecutor completed

his opening statement, all of the attorneys approached

the bench and counsel for petitioner Hanson moved

for a mistrial, alleging that prior to trial the prose-

cutor had assured defense counsel that he would not

refer to the syringes (Tr. 183). The prosecutor ex-

plained (Tr. 184):

Your Honor, I told them I wasn’t going to

introduce the syringes at trial, which I’m not

going to. I didn’t say that I wouldn’t comment

on them. And I didn’t say that the Agents

woudn’t testify that they were found at the

farm house. '

The court then granted the mistrial motion. Counsel

for petitioners Rumpf, Masters, and Griffin, who were

present throughout the bench conference, did not ob-

ject to the mistrial or otherwise indicate their desire

to proceed with the jury that had been selected. The

a Se se ee een eee eee

afternoon (Tr. 184).

When the court reconvened, counsel for’ each of ‘the

petitioners moved to dismiss the indictment oh the

ground that ‘retrial “was barred’ by’ the ‘Double

Jeopardy , Clause. The motion’ was denied, anid counsel

for. . betitioner Hanson requested permission to file’ ai

oral notice of appeal, which was: granted (Tr. 188):

Counsel for the other petitioners -then: “request fed}

an interlocutory appeal,” which the court denied (Tr.

-

6

191). A jitty Was séletted atid sworn, and 'the second

trial commenced ‘withont further SRE by

petitioners te. 191-212).

5 ik. tos etre leap be len ane ‘penta ih

. appeal’ from the convictions, this Court held.in Abney

v. United States, 431 °U.S. 651, 662, that “pretrial

orders rejecting claims of former jeopardy * * *

éonstitute ‘final decisions’ and thus satisfy. the

jurisdictional prerequisites of § 1291.” Accordingly,

under Abney petitioners apparently would now be

entitled to appeal from the district court’s denial of

their motion to dismiss the indictment and to forestall

their second trial pending the disposition of that

appeal. As the court of appeals held (Pet. App. 4a-

5a), however, Abney does not require that petitioners’

pre-Abney convictions in this case be nullified and that

petitioners be retried.

First, the court of appeals properly held that the

decision. in Abney should not be given retroactive

effect. In determining whether a newly announced rule

of: criminal procedure should be given retroactive

application, this Court has applied. a three-part test,

looking to the purpose of the new rule, the extent of

the reliance on.the former rule, and the impact of

retroactive application on the administration of

justice. See Robinson..v, Neil, 409 U8. , 505, 509;

Williams. v, United, States,. 401 U.S. 646, 652 n. 5,

Under these criteria, the Seen in dbiag should not

be anata etconet vt: OO Ne ARM ae,

an

ais SA7 bdelé ‘oe ? “J oO:

7

' The first factor requires that a new rule be given

retroactive effect only in two. situations; where. the

new decision has remedied an. “aspect of the criminal

trial that substantially impairs its truth-finding

function”’ (United States v. Peltier, 422 U.S. 531, 535;

Williams v. United States, supra, 401 U.S. at 653) or

where the conduct. at issue has been. held to be “eon-

‘'stitutionally immune from punishment” (Robinson vy.

Neil, supra, 409 U.S. at 509). Plainly, neither situation

is involved in the interlocutory, ap bility of

orders denying motions to dismiss on double jeopardy

grounds,

The second factor similarly cuts against giving ret-

roactive application to Abney. At the time of petition-

ers’ trial, the law was unsettled on the question of the

appealability of orders denying motions to dismiss on

double jeopardy grounds." Since the Tenth Circuit

had not yet ruled on the question, the district court

was not acting in contravention of controlling case

law or even a strong contrary trend when it pro-

ceeded with petitioner’s retrial after granting a mis-

trial at a very early stage in the first trial.

As to the third factor, if Abney were made fully

retroactive, the effect on the administration of justice

would be adverse. Convictions untainted by error

would be set aside even though the double jeopardy

claim sought to be appealed had subsequently been

* Several circuits permitted an interlocutory appeal (United

States v. Barket, 530 F. 2d 181 (C.A. 8), certiorari denied,

429 U.S. 917; United States v. Beckerman, 516 F. 2d 905 (C.A. 2);

United States v. Lansdown, 460 F, 24 164 (C.A. 4)), while others

refused it (United States v. Young, 544 F. 2d 415 (C.A. 9);

United States v, Bailey, 512 F. 2d 883 (C.A. 5)).

8.

determined: to. he. without. merit. “Wholesale Anvalida-

tion ,of convictions rendered years ago could well

mean. that convicted persons would,be freed .without

retrial, for witnesses * * * no, longer may be readily

available, memories may have faded, records may be

incomplete or missing, and physical evidence may

have disappeared.’’ Gosa v. Mayden, 413 U.S. 665,

685 (plurality opinion).

Moreover, the purpose of permitting an interlocu-

tory appeal when double jeopardy claims are raised

is to prevent the government from haling a defendant

into court when the defendant should be free from the

aggravation and expense of a second trial. Yet in a

case such as this one, where it has ultimately been de-

termined that the second trial was not barred by the

Double Jeopardy Clause, petitioners have suffered no

prejudice from being denied their interlocutory ap-

peal. Since the court of appeals held that their double

jeopardy claim is invalid, they are in the same posi-

tion now that they would have been in had they pur-

sued their interlocutory appeal to judgment in the

court of appeals. Double jeopardy interests would

hardly be served by requiring another trial of peti-

tioners under these circumstances.

Finally, we note that petitioners did nothing be-

yond filing an oral notice of appeal to protect their

rights to an interlocutory appeal.’ They did not seek

relief from the court of appeals to prevent the hold-

. "Indeed, only petitioner Hanson filed an oral notice of appeal.

The other petitioners “request [ed] an interlocu 1”

the district court denied (‘Tr, ro ham St be wn

.

>

ing of ‘a second trial, not ‘did they otherwise’ pursue:

the imatter with the district court after initially mak-

ing their motion ‘for dismissal of the iridictment and

obtaining rulings on their requests’ té ‘appeal. Com»

pare United States v. Oru, 568 F. 2d 781 (C.A, 2): .

Petitioners contend that all that was required of

them was to file notice of appeal; at that point; they

argue, the district court was deprived of jurisdiction

to proceed further with the ease, and any action ‘by:

the district court after that time was “a. nullity”

(Pet. 6). In fact, however, the mere filing of a notice

of appeal does not divest the district court of juris-

diction to proceed with the case if the order appealed

from does not finally dispose of the entire action, or

if the appealability of the order is questionable. See

9 Moore, Federal Practice, pp. 737-740 (2d ed. 1975).

Where the district court determines to proceed with

the case in the belief that the order in question is. not

appealable, the would-be appellant’s proper course to

protect its appeal right is to seek mandamus or pro-

hibition from the court of appeals. Arthur Anderson

& Co. v. Finesilver, 546 F. 2d 338 (C.A. 10); Ruby v.

Secretary of United States Navy, 365 F. 2d 385 (C.A.

9). Since petitioners’ took no steps to protect their

appeal rights following the mistrial declaration, the

court of appeals properly held that the distriet court

had jurisdiction to try them before a second jury.

‘The trial took four days, during the course of which peti-

tioners did not seek any form of relief from the court of appeals,

either through a stay of proceedings in eapennga yeoman way

of a writ of mandamus or prohibition.

10

. The decision below appears to conflict with the de-

cision of the Ninth Circuit in’ Moroyoqui ¥: United

States, 570 F. 2d 862, which petitioners do not cite.

The Ninth Circuit in that case held that Abney should

be applied to cases pending on direet review when Ab-

ney was decided, and therefore reversed a conviction

entered upon a guilty plea after a pre-trial denial of

a motion to dismiss on double jeopardy grounds. We

believe that the court in Moroyoqué mistakenly relied

on language in Linkletter v. Walker, 381 U.S. 618,

627, that ‘“‘a change in law will be given effect while

a case is on direct review.” The Linkletter rule has

been limited to its particular context, and subsequent

retroactivity decisions have held that prospective

rules are not to be applied to decisions on ditect or

collateral review at the time the new rule is adopted.

See Johnson v. New Jersey, 384 U.S. 719, 732; Wil-

liams v. United States, 401 U.S. 646, 656. Moreover,

we do not believe that this conflict requires the atten-

tion of this Court, since few if any other cases would

be affected by the ruling. The number of cases raising

the Abney issue that were on direct appeal when Ab-

ney was decided is quite limited, and, in any event,

most criminal cases that were on direct appeal in June

1977 have by now become final.

2. On the merits, petitioners contend (Pet. 6-7)

that ‘their retrial was barred by the Double Jeopardy

Clause. The court of appeals unanimously rejected

this claim. As this Court, has held, “‘where circum-

stances develop not attributable to prosecutorial or

judicial overreaching, a motion by the defendant for

mistrial is ordinarily assumed to remove any barrier

ul

to reprosecution, even if the defendant’s motion. is

necessitated. by prosecutorial or. judicial error.’ ”

United States v. Dinitz, 424 US. 600,..607,. quoting

United States v.. Jorn; 400 US. 470, 485, The. “court

of appeals correctly found that the prosecutor did not

act in bad faith or provoke the mistrial in order'to ‘ob-

tain a more favorable forum. Instead, the court held

(Pet. App. Ta):

The record shows only a misunderstanding

between defense counsel and the prosecution as

to a conversation before trial as to whether the

syringes would be commented on or testified to:

Petitioners Rumpf, Masters, and Griffin argue that

they did not request or consent to the mistrial and

that therefore they can only be retried if there was a

‘‘manifest necessity” to declare a mistrial as to them.

Arizona v. Washington, 434 U.S. 497, 505, But These

petitioners had the opportunity to explain to the court

that they did not wish to join in Hanson’s mistrial

motion but instead wished to continue the trial before

the jury then impaneled. Rather than doing so, they

watched silently while Hanson’s counsel argued the

mistrial motion, creating the impression with the court

that Hanson’s attorney was speaking for all the de-

fendants. Having failed to object to the mistrial, peti-

tioners have waived their right to have the mistrial

' judged under the “manifest necessity” standard.

United States v. Romano, 482 F, 2d 1183, 1187-1188

(C.A. 5), certiorari denied sub nom. Yassen v. United

States, 414 U.S. 1129; United States v. Goldstein, 479

F. 2d 1061, 1067 (C.A. 2), certiorari denied, 414 U.S.

A2

‘873; Roberts vs United States, 477.F. 2d 544.(C.A, 8) ;

ef. United: States v. Gentile, $30 F. 2d 461, (C.A, 2),

certiorari denied, 426 U.S; 936. _

-.& The: comes ef:appeals sorrectiy: held that there

‘were. both probable cause and exigent circumstances

justifying the.. warrantless search of the camper

- trailer.’ The DEA agents were informed that there

would be a delivery of marijuana by airplane on State

Road 117 on the night of June 20, 1976, They saw two

vehicles enter State Road 117 on June 20, both of

which they recognized as having been involved in pre-

vious airborne smuggling schemes, The next morning

both vehicles left highway 117, one of them pulling a

trailer that appeared to be fully loaded. When the

agents arrived at the ranch house, one agent ap-

proached the shed where the truck and trailer had

been parked. There he saw exposed marijuana in

plain view. Approaching the camper, the agent

smelled a strong odor of marijuana coming from in-

side it. Up to that point, no search had occurred. The

DEA agents were simply investigating what they had

reasonable cause to believe was a marijuana smug-

gling operation in progress. When the agent spotted

marijuana in plain view in the shed and smelled the

odor of marijuana coming from the camper, he had

ample probable cause to search the camper.

° Petitioner Griffin lacks standing to contest the search. He was

not present at the time of the search and disclaims a possessory

interest in either the premises or the goods, See Jones v, United

States, 362 U.S. 257. Furthermore, he was charged only with

conspiracy, which is not “* * * an offense that includes, as an

essential element of the-offense charged, possession of the seized

evidence at the time of the contested search and seizure.” Brown v.

United States, 411 U.S. 223, 229.

‘13

Nor was the search of the camper invalid for being

conducted without a warrant.’The camper trailer, at-

tached to the pick-up truck, had just’ atrived ‘at the

farm and was capable of being driven elsewhere in a

matter of minutes. Even after Rumpf’s arrest; the |

mobility of the camper remained a significant concern,

since the agents knew Rumpf-was working with a

number of accomplices, any one of whom could re-

move the trailer if it were left’ untended. This Court

has recognized that the mobility of an automobile jus-

tifies an exception to the warrant requirement where

the vehicle. is: thought to contain contraband. Cham-

bers v. Maroney, 399 U.S. 42, 52; Carroll v. United

States, 267 U.S. 132.

This case is distinguishable from Coolidge v. New

Hampshire, 403 U.S. 443, on which petitioners rely.

In Coolidge, unlike the present case, Coolidge’s car

was not suspected to contain contraband, it was not

an instrumentality of the crime, and there were no

suspected confederates who could have moved it (403

U.S. at 462). Moreover, in Coolidge there was “not

even the inconvenience of a special police detail to

guard the immobilized automobile” (tbid.). In this

case, the agents were dealing with a group of accom-

plices, the situation had not yet been stabilized at the

time of the search, and the agents had probable cause

‘ to believe that the trailer contained contraband. More-

over, the agents were in an unfamiliar and remote

area in which a search warrant could not readily be

obtained. Indeed, once they had stabilized the situa-

tion shortly after 9 A.M., the agents sent two of their

14

number to obtain a search warrant for the house; the

agents had to wait until approximately 8 or 9 P.M.

that evening before the warrant could be obtained

(H. 60). The search of the camper-trailer at the time

of Rumpf’s arrest thus did not violate the Fourth

Amendment rights of any of the petitioners.

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Wane H. McCrez, Jr.,

Solicitor General.

Puiu B. HEYMANN,

Assistant ‘Attorney General.

JEROME M. Ferr,

Patty ELLEN MERKAMP,

Attorneys.

SEPTEMBER 1978.

U.S, GOVERNMENT PRINTING OFFice: 1976