Petition — Giacalone v. United States

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

_———

- “Supreme Court, U. %

< i FILED

FEB 21 1979

. MICHAEL RODA

IN THE MMUHAEL RODAK, JR., CLERK]

Supreme Court of the United States

——e ——

__%8-1296

VITO GIACALONE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

__o—_—_—

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

—_—~eo—_—

N.C. DEDAY LaRENE

Attorney for Petitioner

1500 Buhl Building

Detroit, Michigan 48226

(313) 962-3500

interstate Brief & Record Co Wurlitzer Bldg., 1509 Broadway, Detroit, Mi 48226

962-8745 962-874€

‘ tp —/!

‘s -

ee ee

TABLE OF CONTENTS

CR ST TOUTE Ah wae ce sbecee

Opinion Below....... EREDAR E Scat s Gest ce sesecs

Statute Involved............. i i ae

The decision of the Court of Appeals is in con-

flict with prior decisions of that court, of this

Court, and with other Circuit Courts of

Appeals, and impermissibly carves out a new

ad hoc exception to the Warrant Clause of the

Fourth Amendment, sanctioning warrantless

seizures of automobiles parked in private en-

claves based on the mere anticipation of the

subsequent issuance of a warrant, and sanc-

tions the deliberate bypass of the warrant-

issuing process by law enforcement officers. . .

Il.

The decision of the Court of Appeals is in con-

flict with the decisions of other circuits, and

improperly validated clearly improper interfer-

ence by the trial court in the jury’s delibera-

Page

tions; the trial court’s conduct, and the Court

of Appeals’ validation thereof, bespeak a need

for guidance from this Court on the question

of the circumstances under which, and to

what lengths, supplemental jury instructions

PERRET a KN eS Pa

Il.

The decision of the Court of Appeals is in di-

rect conflict with the principles established by

this Court’s decision in Marshall v United

States, 360 U.S. 310 (1959), in that the Court of

Appeals erroneously affirmed the trial judge’s

denial of Petitioner’s challenges for cause to

trial jurors who admitted both unfavorable at-

titudes toward Petitioner, and the possession

of extrajudicially-acquired facts about specific

allegedly criminal acts of the Petitioner, un-

connected with the charge for which he was

on trial, and about which proof would not

have been admissible. ...............eeeeees

RTE a PMSA ISIRD TT oe gs Cw SDRENZE RF REN RENN

Appendix A — Order of Sixth Circuit Court of

Appeals Affirming Petitioner's Conviction .....

Appendix B — Order of Sixth Circuit Court of

Appeals Denying Petition for Rehearing ......

A21

ili

INDEX TO AUTHORITIES

Cases: Page

Allen v. United States, 164 US 492 (1896) ...... 31,36

Arrington v. United States, 22 Cr L Rptr 2411

IU ei lo a i 14

Bullenbach v. United States, 326 US 607, 612

SE eee se ee ee eeeeeeees 31,33

CAB v. United Airlines, Inc., 542 F2d 394 (7th

ase coders cate ec cc ces ce coe ek 16

Carroll v. United States, 267 US 132 (1925)..... 13,15

Chimel v. California, 395 US 752 (1969) ......... 13

Coolidge v. New Hampshire, 403 US 443, 461-462

gE ae ee ee 13,15,16,22

DiBella v. United States, 369 US 121, 82 SCt 654

NN te id wee es Ls ove k} ae a oe’ 24

Ervin v. Dowd, 366 US 717 (1961)............... 42

Fifth Avenue Peace Parade Committee v.

Hoover, 327 F Supp 238 (SDNY 1971)......... 24

Fixel v. Wainwright, 492 F2d 480 (5th Cir 1974)... 16

Jenkins v. United States, 380 US 445, 446, 85 SCt

RA a da ol A a a 26

Page

Katz v. United States, 389 US 347, 356-357

CIB? «. o o.060n000460-sanneneun tan eenees 12,15,16

Kroehler v. Scott, 391 F Supp 1114 (ED Pa 1975).. 16

Marshall v. United States, 360 US 310

CRUE vac s cocctccncdsgatueknseetaneteet 39,43,44,46

Michaelson v. United States, 335 US 469, 475, 69

SCt 213, 218, 93 L Ed 168 (1948) ............ 43,44

In re Murchison, 349 US 133, 136 (1955) ......... 42

Niro v. United States, 388 F2d 535, 538 (CA 1

TOG on cccnbbodenccacns cuowens see aan 17

Patterson v. Colorado, 205 US 454, 462 (1907).... 41

Perial Amusement Corp v. Morse, 482 F2d 515

COR Gar TOPS os vce ctu tecdsucapuesnuereaeness 23

Powell v. United States, 347 F2d 156, 158 (CA 9

TOD 50s occas'k caeo cack abevaeee Gaba 34

Preston v. United States, 376 US 364 (1964) ...... 13

Shadwick v. City of Tampa, 407 US 345 (1972) ... 22

Shields v. United States, 273 US 583 (1957) ...... 26

Silverthorne v. United States, 400 F2d 627, 637

CCAD TED. cvcwcvnnnnsnkspeutaaeesceans 42

South Dakota v. Opperman, 428 US 364 (1976)... 13

Tennant v. United States, 407 F2d 52, 53 (CA 9

WG encase eee e nets teen eee e sence eens 34

Terry v. Ohio, 392 US 1 (1968)...........--5505- 12

United States v. Barnhill, 305 F2d 164, 165 (CA 6

WG 20 oc cows c.deen cae bata vecduaaceaaaae 30

SII ee ra es

Page

United States v. Bass, 425 F2d 161, 163 (CA 7

a Nate et oe ec aaa RN. 34

United States v. Berkowitz, 429 F2d 921, 924 (CA

ES NERS i ee FT oe 11

United States v. Burley, 460 F2d 998 (CA 31972). 36

United States v. Calandra, 414 US 338 (1974)..... 22

United States v. Carter, 491 F2d 625, 633-634 (CA

EES SR IES AOI yg ee a a 32,33

United States v. Chuke, 554 F2d 260 (CA 6

oT isis w a's wid'Wie’és db's 18,19

United States v. Contreras, 463 F2d 773 (CA 9

EES SET SR: «CT a a 38

United States v. Dunnings, 425 F2d 836 (2d Cir

1969) cert denied 397 US 1002................ 22

United States v. Harris, 391 F2d 348, 354 (CA 6

ee ee Cie Dik wis own howe bs 36

United States v. Heisman, 503 F2d 1284 (8th Cir

NN Pe a 16

Uaited States v. Jackson, 533 F2d 314, 319 (CA 6

Ee ee, aaa ah on TELE 14

United States v. Jacobs, 513 F2d 564 (9th Cir

ES ES ALR TE Eee a ee SP 23

United States v. Jeffers, 342 US 48, 51 (1951)..... 13

United States v. McCormick, 502 F2d 281, 284,

I Ne ae ede LUG), cay adios w bi 14,16

United States v. Miller, 546 F2d 320, 324 (CA 9

DRM Ie er, Bo. POE a se ite bales 33

Page

United States v. Murrie, 534 F2d 695, 697 (CA 6

ET si cis EWR ARR od OEMS DKON SORE Re ak oes 12

United States v. Ortiz, 422 US 891, 95 SCt 2585

SE Sa bin 6 CART G OAK) oben ERED Thee eee 16

United States v. Payne, 429 F2d 169, 172 (CA 9

ye ee adidas gbhinhdud ida eae aos 14,17

United States v. Petersen, 513 F2d 1133, 1136 (CA

On ekt oe ee ae 28

United States v. Pruett, 551 F2d 1365 (CA5 1977) 17

United States v. Scheffer, 463 F2d 567, 574-575

po ia hs epee ee Oe a ere 17

United States v. Scott, 547 F2d 334 (CA 6 1978) .. 31

United States v. Seawell, 550 F2d 1159, 1163 (CA

United States v. Shirley, 435 F2d 1076, 1078 (CA

FP MUD s\n dain weaned cane Pe alge Pe Sones 35

United States v. Taylor, 530 F2d 49, 51 (CA 5

PE a OCR ES RUCK VLR REDO RR Oe 36

United States v. Thomas, 449 F2d 1177, 1181 (CA

eee oy B . Eeree Puree & era pean 35

United States v. Thompson, 409 F2d 113 (CA 6

Pe te Pay Pee ao iy Pas Ser te oe wt Uy aN 12

United States v. Watson, 423 US 411, 428, 96 SCt

ee TE erate edn 6 dbo TE caw oS Cee thRL 12

United States v. Williams, — F2d —, 22 Cr L

Rptr 2521, 2522 (CA 5 2-27-78) ........... 44,45,46

Warden v. Hayden, 387 US 294, 87 SCt 1642, 18 L

oF &, kts eG eee RS rae OPE ee 14

Vii

Page

Other Authorities:

Federal Rules of Criminal Procedure,

EE tk vie te WAS AUER EES AE OURS heaves 21

a ee ee err eer 25,31,34

ME Ships Viwdene Rasen se cheneaee es donee, 21

EEL uns Go-gic Eas ce Abeta Kae oe 24

MES Aiki K ok Nine cee cane Cuneweebesda 25

Notes of the Advisory Committee on Rules —

Poet Pe rer er ree 23

“On Instructing Deadlocked Juries’, 78 Yale Law

SE BE CU 6. ois Widen cues sok oa cae enh 36

ik. ae EN er SIE ere ene 4,8

SE BR Sie e's oan 0n F555 S <5 bee aed Surcace 16

United States Constitution,

Fourth Amendment ............... 3,12,15,17,19,21

ES OE ee oe eee 21

Bape eee ee ee or ree Sree 21

IN THE

Supreme Court of the United States

VITO GIACALONE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

_——e ——

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

Vito Giacalone, by and through his attorney, N. C.

Deday LaRene, petitions herein for a Writ of Certiorari

to review the decision of the United States Court of

Appeals for the Sixth Circuit affirming his conviction

for violation of 18 USC §1202(a) (Appendix), filed

December 18, 1978, and its Order denying his Petition

for Rehearing, and Suggestion for Reconsideration En

Banc, filed January 22, 1979.

OPINION BELOW

The Opinion of the Sixth Circuit Court of Appeals

° filed December 18, 1978, affirming Petitioner's

conviction, is reprinted in full herein as Appendix A to

this Petition. The Order denying the Petitioner's

Petition for Rehearing is reprinted in full as Appendix B

hereto. Neither of these Orders has as yet been

published.

JURISDICTION

The Orders appealed from were filed December 18,

1978 and January 22, 1979. The jurisdiction of this Court

is invoked under 28 USC §1254(1).

QUESTIONS PRESENTED

Was the firearm upon which the Petitioner's

prosecution was founded obtained as a result of an

illegal search and seizure because:

A. The Government delayed unreasonably in

securing a search warrant, and deliberately

bypassed magisterial review of its actions

through the warrant-issuing process?

B. The Magistrate who ultimately issued a

search warrant for Petitioner’s car, once it

had been seized without a warrant,

erroneously refused to allow Petitioner's

counsel to be heard in opposition to the

issuance of the warrant?

C. The Search Warrant which was ultimately

issued was itself the product of, and fatally

based upon the fruits of an_ initial

warrantless seizure and detention of the

Petitioner’s automobile the previous day?

D. The warrantless seizure of the Petitioner's

automobile was not justified under any

known exception to the Warrant Clause of

the Fourth Amendment, but only upon the

anticipation by the seizing officers of the

subsequent issuance of a warrant?

Did the trial court improperly coerce the jury verdict,

under the standards guiding and limiting a federal trial

judge’s interference wit a jury’s deliberations?

Ill

Was the Petitioner denied the proper exercise of his

rights to a fair and impartial jury by the trial court's

denial of his challenges for cause to jurors who believed

that he had a bad reputation in the community,

assumed that he was a professional criminal, and

had independent, extrajudicially-acquired personal

knowledge of what appeared to be illegal transactions,

none of which would have been provable by the

Government?

STATUTE INVOLVED

The Statute under which Petitioner was convicted, 18

U.S.C. §1202(a) (Appendix), provides, in pertinent part,

as follows:

(a) Any person who—

(1) has been convicted by a court of the

United States or of a State or any political

subdivision thereof of a felony,

* * .

and who receives, possesses, or transports

in commerce or affecting commerce, after

the date of enactment of this Act, any

firearm shall be fined not more than $10,000

or imprisoned for not more than two years,

or both.

STATEMENT OF THE CASE

On March 29, 1977 the Petitioner, Vito Giacalone, was

arrested by Special Agents of the Federal Bureau of

Investigation, executing a Warrant of Arrest premised

upon the return of an indictment charging him with

violation of 18 USC §1955.' His car was seized by the

agents, without authority of a warrant, and removed to

FBI headquarters in Detroit, where it was maintained

until the next day. On March 30, 1977, a search warrant

was procured by the Government, and the automobile

was searched thereunder.

' That prosecution, United States v. Vito Giacalone, et al., was

subsequently tried in the United States District Court for the Eastern

District of Michigan, under docket number 7-80449. The defendant

Vito Giacalone was acquitted by the jury.

In the course of searching the Petitioner’s automobile,

the agents discovered a “secret compartment” concealed

within the dashboard, between the ashtray and the

glove compartment, on the lower portion of the

dashboard. Within that compartment was discovered

.32 caliber Smith and Wesson revolver, resting on a

white tissue, an envelope containing twenty three

rounds of .32 caliber ammunition, and a piece of note

paper with writing appearing to be personal notes on

it. The compartment was so devised that it was opened

by a solenoid which was activated by a button located

on the bottom of the dashboard to the left of the

steering column.

Petitioner was charged, under the provisions of 18

USC §1202(a) (1) (Appendix) in a one count Indictment,

with having been a previously convicted felon and

knowingly receiving or possessing in and affecting

commerce the Smith and Wesson pistol discovered in

his automobile.

After the Court denied his Motion to Suppress the

pistol and other contents of his automobile on Fourth

Amendment grounds, Petitioner went to trial before the

Honorable Charles W. Joiner, and a jury, on July 13,

1977.

The Government presented witnesses who, generally,

established that the pistol in question had indeed

travelled in interstate commerce prior to its discovery in

the Petitioner’s automobile. The Government did not

prove when or where the Petitioner may have received

the firearm; and only nexus between Petitioner and the

gun was as of the time of its seizure from his

automobile.

However, testimony establishing both the Petitioner's

ownership of the automobile at the time of its search

and seizure, and his previous conviction of a felony

was stipulated to.

The defense did not really challenge the sufficiency of

the Government's proofs as to any elements of the

offense charged except that of “knowing possession or

receipt.” With respect to that question, the defense

called a series of witnesses who did not know the

Petitioner, but who had been in his car at times when

it was driven by three other people when the Petitioner

was not there. It was the theory of the defense that any

one of these three people might have, and in fact did,

place the gun in the compartment, and that the

Petitioner need not have been responsible for the

placing of the gun there, or have been in knowing

possession of it, on the day he was arrested. To this

end, the defense also called as a witness a Detroit police

officer who was on duty at the Detroit Police

Auto-Pound on the afternoon of March 29, 1977, shortly

after the Petitioner’s arrest; he testified that shortly after

hearing about Vito Giacalone’s arrest on the radio, a

person identifying himself as one of the three people

who had driven Petitioner's vehicle came to the Pound

and asked to get some personal property of his out of

Mr. Giacalone’s car; since the automobile was not in the

possession of the Detroit Police Department, the officer

called the FBI, who had the car, and was told to direct

the person inquiring to the United States Attorney’s

Office.

It was, quite clearly, the theory of the Petitioner, and

the only theory of the Petitioner, that someone other

than he could have placed the gun in the compartment

in the Petitioner’s car, and that the incident at the auto

pound on the day in question suggested at least a

reasonable doubt as to whether or not the Petitioner

himself had actual or constructive possession of the gun

on the day in question.

The jury began its deliberations in the morning

of July 19, 1977. Those deliberations continued

uninterrupted through the afternoon of July 19 and

through to the afternoon of July 20, when the jury sent

a note requesting that the testimony of the FBI agents

who had seized the car, the defense witnesses, and the

one government rebuttal witness who gave testimony

regarding the possession of the Petitioner's car by

another be read back. Because of logistical problems,

this was not done until the morning of July 21; after the

testimony was re-read, the jury continued to deliberate

and on the afternoon of July 21 announced that it was

unable to reach a verdict.

Supplemental instructions were given by the Court,

over the objections of the Petitioner and within an hour

thereafter, the jury which had deliberated some 20

hours up to that point, returned a verdict of guilty.

On September 6, 1977, Petitioner was sentenced to

the maximum term of incarceration permitted under the

statute — two years — and a Five Thousand Dollar

($5,000.00) committed fine was imposed as well.

Petitioner appealed his conviction and sentence to the

Sixth Circuit Court of Appeals as a matter of right. On

December 18, 1978, a panel of that court affirmed his

conviction. A petition fo- rehearing and suggestion of

the appropriateness of reconsideration en banc was duly

filed, and denied by the Sixth Circuit on January 22,

1979.

| )

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals is in con-

flict with prior decisions of that court, of this

Court, and with other Circuit Courts of Appeals,

and impermissibly carves out a new ad hoc

exception to the Warrant Clause of the Fourth

Amendment, sanctioning warrantless seizures of

automobiles parked in private enclaves based on

the mere anticipation of the subsequent issuance

of a warrant, and sanctions the deliberate bypass

of the warrant-issuing process by law enforce-

ment officers.

The Factual Background

For more than a year prior to Petitioner’s arrest on

March 29, 1977, the Federal Bureau of Investigation and

the Detroit Strike Force had been investigating his

alleged involvement with an illegal gambling business

involving numbers gambling in the City of Detroit.

Sometime prior to March 29, 1977, it had been

determined that an Indictment would be sought

against, among others, the Petitioner, for violation of 18

USC §1955 (the Illegal Gambling Business Statute), and

also that warrants for the seizure of the prospective

Petitioners’ cars would also be sought, pursuant to 18

USC §1955(d).

Shortly after the Petitioner’s arrest, and surrounding

of his car by the FBI agents, his companion was seen to

re-enter the private club from whence they had come.

One of the agents, upon entering the club shortly

thereafter, heard the Petitioner’s companion speaking

on the telephone, saying that “they” had the car

— meer Sew

“surrounded,” and expressing dismay that “they”

might ‘find the goddamned thing in there.”’

That information, together with information allegedly

obtained the following day from an informant that he

had overheard the companion say to Petitioner’s son,

who had come to the scene of the Petitioner’s arrest

shortly thereafter, and been refused permission by the

agents to take the Petitioner’s car, that ‘‘we’ve got to get

the gun out of there right now,” was incorporated in an

affidavit submitted the next day in support of a search

warrant which was in fact issued.

When the Petitioner was arrested on March 29, 1977,

under the authority of the Warrant of Arrest issued

upon the return of the Grand Jury Indictment in the

gambling case, the seizure warrant for his car had been

presented to the same United States Magistrate who

had issued the Warrant of Arrest, but it either had been

at that point denied, or had not yet been acted on as of

the time of Petitioner’s arrest at 4:41 p.m.

The Petitioner was arrested at the Southfield Athletic

Club, in Southfield, a suburb of the City of Detroit —

at the time of his arrest, the FBI had arranged a

“seizure team,”’ which was on hand and ready to seize

the car. At the Evidentiary Hearing that was held in

connection with Petitioner's Motion to Suppress, the

supervising Special Agent on the scene of the arrest

testified that he made the decision, at the time of the

arrest, to detain the vehicle at the scene based upon his

assumption that the Seizure Warrants under §1955(d)

were to be issued.

The Petitioner was arrested after he left the premises

of the Southfield Athletic Club and approached his car,

which was parked in a segregated section of the

parking area which surrounded the building in which

the Club was located, and to which access could only be

gained through the employment of an electronically

keyed card, available only to members of the Southfield

Athletic Club; testimony established that the Petitioner

was a member of the Southfield Athletic Club, and had

indeed paid an additional fee for the privilege of

parking in this segregated portion of the parking lot.

The basic information upon which the search

warrant affidavit was premised came from informant

information regarding the presence of a secret

compartment in the Petitioner's car which had been

given to the FBI by the informant (described as ‘‘FBI-1”’

in the Affidavit) some 3 months before the Petitioner's

arrest on March 29, 1977.

Prior to March 29, a conscious decision had been

made by agents of the FBI not to seek a Search Warrant

for the gun about which they had information.

According to the agents, this decision was based both

upon the thought that the information was of such a

character that to disclose it in the context of a Search

Warrant Affidavit would “pinpoint” the informant, and

also that it would not have been sufficient to justify the

issuance of a Warrant; however, the agent who was

dealing with the informant acknowledged that at no

point did the FBI agents consult anyone outside the FBI

— that is, they did not apparently seek the opinion of

an attorney.

The Government delayed unreasonably in

securing a search warrant, and deliberately

bypassed magesterial review of its actions

through the warrant-issuing process.

Nothing can be clearer than that when the agents

assumed dominion over the car at the time of the

Petitioner’s arrest, and resolved to detain it “pending

the issuance of the seizure warrants,” they were in fact,

for constitutional purposes, effecting a ‘seizure’ of the

vehicle then and there. See, e.g., United States v.

Berkowitz, 429 F2d 921, 924 (CA 1 1970). This point in

time is analytically significant because clearly the

overheard statements of Petitioner's companion were

the products of this initial FBI action.

Nothing could be clearer than that the conduct of

Petitioner’s companion in making the telephone calls

which the affiant to the Search Warrant described in his

Affidavit to the effect that the FBI had the car

surrounded and that they might “find that goddamned

thing in there” can be seen as nothing but the direct

product of the warrantless seizure and detention of the

automobile. Indeed, the “exigency” relied upon by the

Government to justify its warrantless detention — that

the friends and relatives of the Petitioner were seeking

to remove the car — was premised upon the fact of the

FBI’s detention of the automobile itself, and the

attempts of the Petitioner’s son to secure custody of the

car. Moreover, it was conceded by the Government at

the Evidentiary Hearing that the further informant

information obtained the next day from ‘’FBI-2’, and

which was integral to the Search Warrant Affidavit’s

showing of probable cause was “at least in part an

out-growth of the seizure detention” of the automobile

on March 29.

As Mr. Justice Powell indicated, concurring in United

States v. Watson, 423 US 411, 428, 96 SCt 820 (1976),

“The Fourth Amendment speaks equally to both

searches and seizures.” Accordingly, it seems clear

enough that where the issue is the validity of a search

or seizure without a search warrant, the burden is on

the Government to justify the propriety of the

warrantless action. United States v. Murrie, 534 F2d 695,

697, (CA 6 1976), United States v. Thompson, 409 F2d 113

(CA 6 1969).

Searches or seizures conducted without the judicial

process of a warrant, without prior approval by a

magistrate, are per se unreasonably under the Fourth

Amendment subject only to a few well-delineated and

specifically established exceptions which are jealously

and carefully drawn. Katz v. United States, 389 US 347,

356-357 (1967). The Sixth Circuit’s affirmance of the

District Court’s decision upholding the seizure and

search of the Petitioner’s car ignores this well

entrenched principle of Federal constitutional law.

Wherever practicable, the police must obtain advance,

judicial approval of a search through the warrant

procedure unless an established exception applies. Terry

v. Ohio, 392 US 1 (1968).

The warrant requirement serves two distinct

constitutional protections: a careful prior determination

of necessity by a neutral and detached magistrate

precludes intrusions not scrutinized for probable cause;

and those searches not deemed necessary should be as

limited as possible. Coolidge v. New Hampshire, 403 US

443 (1971). Thus, the burden of justifying a warrantless

search is on those seeking an exception from the

general rule. United States v. Jeffers, 342 US 48, 51

(1951).

In the circumstances of this case, the only arguably

relevant, recognized exception to the warrant

requirement is the moving automobile exception. See

Carroll v. United States, 267 US 132 (1925). The seizure

and search cannot be justified as incident to the

defendant’s arrest since the contents of the car were

well beyond his immediate control, both at and

subsequent to his arrest and removal from the scene.

See Chimel v. California, 395 US 752 (1969) and Preston v.

United States, 376 US 364 (1964). Nor can the seizure be

justified as a part of some inventory procedure as in

South Dakota v. Opperman, 428 US 364 (1976) in which

an. automobile was seized solely via a legitimate

impoundment after multiple parking violations. No

such justification has been asserted; nor could it since it

is clear from the testimony that the purpose of the

seizure and search was to obtain evidence and not to

protect the defendant’s property.

Although the Sixth Circuit held that the case facts

“fully suggest the propriety of the exception to the

warrant requirement in Carroll v. United States, 267 US

132 (1925),” the Court’s opinion nowhere explicitly states

that the case is controlled by the Carroll exception.

Rather, the opinion carefully skirts such a proposition.

Well it might, for heretofore Carroll has only been held

to contemplate a vehicle moving on an open highway.

See, e.g., United States v. McCormick, 502 F2d 281, 287

(CA 9 1974); United States v. Payne, 429 F2d 169, 172

(CA 9 1970).

What the Sixth Circuit’s opinion does, quite clearly,

is to carve out a new exception to the warrant

requirement — allowing the temporary detention of a

stationary automobile pending the issuance of a Search

Warrant — in an ad hoc adjudication of

“‘reasonableness.’’ This is precisely the sort of

constitutional excursion which has been repeatedly

condemned by the Courts, notably, and recently by the

District of Columbia Circuit in Arrington v. United

States, 22 CrL Rptr 2411 (CA DC 1978) in which that

Court strongly rejected a Government contention that

the warrantless removal of an arrested traffic offender's

automobile to the police station, and the subsequent

inspection and opening of a paper bag found therein

should be justified as reasonable as an “invitation to

venture forth on the uncharted sea of ad hoc

adjudications of constitutional reasonableness.” 24

CrLRptr supra.

The Sixth Circuit’s decision is in marked conflict not

only with decisions such as United States v. McCormick,

supra, and United States v. Payne, supra, but with its

own jurisprudence, in which it has steadfastly clung to

the Warrant Clause. Thus, in United States v. Jackson,

533 F2d 314, 319 (CA 6 1976), the court wrote that

“belief, however well founded, that articles are

concealed inside a dwelling house; does not justify a

search without a warrant,’”” and struck down the

warrantless entry into a dwelling unit which was

unjustified by the level of exigency which had been

held by this Court to permit warantless entries in

Warden v. Hayden, 387 US 294, 87 SCt 1642, 18 LEd 2d

782 (1967).

The facts of this case fall squarely under the holding

and rationale of Coolidge v. New Hampshire, supra. There

this Court struck down the seizure and search, without

a valid warrant, of a car which was parked in the

defendant’s driveway. The Court in Coolidge cautioned

that the word “automobile” was not a talisman in

whose presence the Fourth Amendment fades away. 403

US at 461-462.

In Coolidge, the defendant’s car was parked in his

driveway, from which it was seized without a valid

warrant. This Court held that such a seizure would not

be sustained absent a proper judicial authorization,

since the Carroll ‘‘automobile exception’ to the warrant

requirement contemplates a vehicle moving on an open

highway.

Although subsequent Supreme Court decisions have

upheld warrantless seizures of automobiles in a variety

of situations, no decision has significantly undercut the

precedential effect of Coolidge, and in no case has any

court upheld the warrantless seizure of an automobile

when the automobile was not either abandoned or

parked on a public thoroughfare or the like.

The Supreme Court’s analysis has proceeded on a

“privacy” analysis. Adopting this analysis, it is clear

that the Petitioner’s expectations of privacy, in the case

at bar, were at least as reasonable and legitimate as

those vindicated in Coolidge. The cases have sustained a

persons’ right to expect privacy and thus protection

from unwarranted governmental intrusion in a variety

of circumstances. Katz v. United States, supra, initiated

this analysis by holding that one who made a telephone

call from a public booth had a legitimate expectation

that his conversation would not be electronically

16,

monitored. Following Katz, courts in a broad variety of

circumstances have found a reasonable and legitimate

expectation of privacy. See Fixel v. Wainwright, 492 F2d

480 (5th Cir 1974) (yard behind four-unit apartment);

United States v. Heisman, 503 F2d 1284 (8th Cir 1974)

(lease commercial building); CAB v. United Airlines, Inc.,

542 F2d 394 (7th Cir 1976) (regulated carrier); and

Kroehler v. Scott, 391 F Supp 1114 (ED Pa 1975) (toilet

stalls in public restroom).

Even though the privacy we have a right to expect in

our cars is different and perhaps more limited than that

of our homes, it is nevertheless clear that there is a

reasonable expectation of privacy in one’s automobile.

“A search, even of an automobile, is a substantial

invasion of privacy. . .”” United States v. Ortiz, 422 US

891, 95 SCt 2585 (1975). This should be particularly true

when the subsequent search involves such an invasive

intrusion into a “hidden’’ compartment in the car’s

dashboard, which was clearly designed for private

purposes. Moreover, the seizure of a locked car from

the restricted and private parking lot of a private club

seems at least as invasive into private areas as the four

cases cited above.

In addition to Coolidge, other federal cases have struck

down warrantless automobile circumstances under

situations in many respects more exigent than the

present one. In United States v. McCormick, 502 F2d 281,

284 (9th Cir 1974), the Court rejected the justification

that the vehicle was impounded under 29 USC §782, a

forfeiture statute, since the statute could not validate a

warrantless seizure unless a recognized exception to the

warrant requirement was established. Therefore, the

warrantless seizure of the car from the defendant's

driveway was improper. In United States v. Payne,

supra, a warrantless search of a vehicle parked near the

Petitioner’s campsite in a national park required

exclusion of the evidence found in the car. And, in the

recent case of United States v. Pruett, 551 F2d 1365 (CA

5, 1977) the search of the Petitioner’s automobile while

it was parked outside of his residence was held by the

Fifth Circuit Court of Appeals to be a violation of the

Fourth Amendment.

It is important to note that the status of the property

on which the agents proceeded to detain and seize the

Petitioner’s automobile, and the Petitioner’s interest in

that property, is qualitatively different both from an

automobile moving on the open highway and one

parked on a public street.

In order to prevail on the question of the propriety of

a warrantless seizure, the Government must be required

to show that some exigency justifies action without the

benefit of prior judicial approval, and, moreover, that

that exigency was not created by the Government’s own

deliberate actions or failure to act. Niro v. United States,

388 F2d 535, 538 (CA 1, 1968), United States v. Scheffer,

463 F2d 567, 574-575 (CA 5, 1972).

The fact that the Government had not procured the

contemplated §1955(d) Seizure Warrant at the time of the

Petitioner’s arrest, was not due to any action on the part

of the Petitioner, but rather to the timing of a

process which was wholly and completely within the

control of the Government. Quite simply, it is the

position of the Petitioner that the Government cannot

create its Own exigencies and then exploit them to do

without a warrant what it could not otherwise. The

Government in the case at bar could have presented its

application for a Seizure Warrant at an earlier time, or

could have waited to execute the arrest warrants (the

testimony was that they had had the Petitioner under

surveillance since approximately 8:00 that morning,

waiting to effect his arrest) until the Seizure Warrants

had been acted on, or otherwise have timed their

conduct so that it would not have been “necessary” for

them to detain the automobile absent judicial

authorizations therefor. Indeed, when the Petitioner

was taken from the Southfield Athletic Club, he was

taken to the United States Magistrate who had already

declined to issue the Seizure Warrant. The Government

could, at the very least, it appears, then sought a Search

Warrant for the Petitioner's car if they had then had

probable cause. However, at no point did the

Government in its arrogance seek the prior

authorization of a judicial officer either for the seizure

or detention of the automobile in the parking lot of the

Southfield Athletic Club, or for its removal therefrom or

detention in the FBI parking lot downtown.

The Government's deliberate by-pass of the warrant .

issuing process at that point must render the

subsequent warrantless seizure (even if it were

otherwise proper — which of course Petitioner contends

it was not) improper. The Sixth Circuit's own decision

in United States v. Chuke, 554 F2d 260 (CA 6, 1977) is

instructive in this regard. In Chuke, this Court held, in

pertinent part, as follows: ‘

Where law enforcement officers have squandered

an overt opportunity to obtain a warrant

antecedent to an otherwise acceptable search

(justified by exigent circumstances or incident to

a valid arrest), there must be a showing of

compelling “countervailing factors” to sustain

the constitutionality of the suspect intrusion . . .

We believe that, if a defendant's allegation of

deliberate bypass of a warrant is supported by a

finding that a realistic opportunity existed to

procure one, as in this case, the Government

must come forward with objective evidence

tending to justify this deviation from normal

police procedure. Subjective good faith on the

part of the authorities cannot suffice as a

complete defense if we are to honor the principle

that warrantless searches are per se unreasonable

under the Fourth Amendment ... We must

satisfy ourselves from the facts that the officers

conducted themselves reasonably under all of the

circumstances and did not gratuitously usurp the

role of the impartial magistrate.

554 F2d supra at 263-264 (citations omitted)

There is no question but that at the time the

informant information was received on January 3, 1977,

that information would have constituted probable

cause, because of its staleness.) Thus, it is clear that,

to use the language of the Court in Chuke, the

Government possessed in January 1977 a “realistic

opportunity’ to procure a Search Warrant, which it

deliberately bypassed.

It makes no difference, Petitioner submits, whether

the agents themselves thought probable cause existed

since the standard should be an objective one. While it

is true that the agents testified in the instant case that

they did not believe that probable cause existed, they

also indicated that they did not take the trouble to

consult with a lawyer, who might have been able to

give them a better judgment. Thus, since “objective

good faith’’ cannot suffice as a defense to the

Petitioner's charge that the Government squandered its

opportunity to secure a warrant, it is necessary for this

Court to evaluate, by virtue of its own judgment,

whether the reasons advanced by the Government for

what was admittedly a deliberate bypass of the warrant

process are reasonable.

B. -

The Magistrate who ultimately issued a search

warrant for Petitioner's car, once it had been

seized without a warrant, erroneously refused to

allow Petitioner's counsel to be heard in

opposition to the issuance of the warrant.

Even the Government’s entry into the warrant

process, on March 31, 1977, was attended by unfairness

to the Petitioner.

As noted above, the day after Petitioner was arrested

and his car seized, the Government obtained a search

warrant from a United States Magistrate, in the

execution of which the gun, upon which the instant

prosecution was founded, was discovered. During the

proceeding in which the Magistrate was measuring the

quantum of evidence presented by the Government to

support its application for a search warrant, counsel for

Petitioner went to the Magistrate’s chambers and

requested that he be heard on the pending application

for the purpose of providing additional facts and

arguments which would or might have prompted a

different result on the application. The Magistrate,

however, refused to hear defense counsel on the

warrant application.

The refusal by a magistrate before whom an

application for a search warrant is being presented to

allow defense counsel to present additional, relevant

facts and arguments constitutes a violation of Rule 12,

Federal Rules of Criminal Procedure, and the Fourth,

Fifth and Sixth Amendments to the United States

Constitution, and although this Court has never

considered the question, it should now so hold.

Petitioner does not take the position that a full

adversary hearing is required in every proceeding on a

search warrant application. The special facts in the

present case required that defense counsel be allowed,

at a minimum, the right to be heard before the decision

was made. The magistrate had previously denied the

Government's Motion to seize the Petitioner’s car and

has subsequently presided at Petitioner’s arraignment

on the related case. He was thus aware that the

Government had custody of the car at the time of the

warrant application. Thus, the evidence sought was

completely secure and the Court already had authority

over the Petitioner in the form of a bond. Nor did the

Petitioner seek to do more than to be able to present

argument and, if necessary, controverting facts.

Under these circumstances, there was no legitimate

interest whatsoever to be served by the exclusion of the

Petitioner and his attorney for the proceeding. There

was no need for secrecy in the presentation of the

Affidavit. Barring the Petitioner conferred no benefit

upon an interest or party.

The purpose of the requirements of Rule 41, Federal

Rules of Criminal Procedure, which inter alia imposes

rules upon the securing of a warrant, is primarily to

deter future unlawful police conduct. United States v.

Calandra, 414 US 338 (1974). Waiting until after that

conduct has occurred to determine its legality certainly

makes a less direct and more speculative contribution

toward the goal of deterrence. Especially in

circumstances as the present one in which there are no

countervailing factors, an initial and more informed

judgment as to the merits of the warrant request cannot

but be beneficial to the entire process. Moreoever, it is

the responsibility of the magistrate to take steps

necessary to insure that he is not deceived. United States

v. Dunnings, 425 F2d 836 (2d Cir 1969) cert denied 397 US

1002. Nothing could have assisted him in this

responsibility more than, at a minimum, allowing

defense counsel to be heard on the question before

him.

The decision on whether to authorize a search of a

citizen’s property is so important in our scheme of

justice that we limit the decision-making process to a

neutral and detached magistrate. Coolidge v. New

Hampshire, 403 US 443 (1971). A magistrate who

examines a warrant request must be capable of

determining whether probable cause is demonstrated

but, equally importantly, he or she must be completely

removed from the prosecutor or police to fulfill the

requirement of detachment. Shadwick v. City of Tampa,

407 US 345 (1972). The appearance of justice and

impartiality is strained where, even though the

government has already seized the article it desires, that

magistrate closes the door to defendant and makes a

private decision only in the presence of the

Government's agents. Certainly an independent judicial

determination cannot be harmed in any way by hearing

both views. To the contrary, our system does not favor

ex parte proceedings and allows them only grudgingly

upon a showing of compelling necessity. No such

necessity was present here. The care was securely in the

custody of the Government, the evidence sought was

not of an evanescent sort, and there was no function to

be served by maintaining any secrecy to the

proceeding.

On the other hand, although the Government could

suffer no prejudice, the Petitioner stood considerably to

lose by not being able to raise objections to the warrant

until after its execution. Any post-Indictment remedy

could not remove the inconvenience and disabilities

which proceeded from the search. This is especially true

in this case inasmuch as the Government has now

dismantled part of the car. Also, a consideration of

some of the particulars of the warrant at a time directly

after the affidavits were prepared might have resulted

in a more accurate construction of the circumstances,

and caused the Magistrate to deny the warrant request.

Petitioner’s research has not disclosed a case whose

facts are similar to the present ones. It is well

established, however, that a magistrate has jurisdiction

to conduct an adversary hearing prior to the issuance of

a search warrant. United States v. Jacobs, 513 F2d 564

(9th Cir 1974); Perial Amusement Corp. v. Morse, 482 F2d

515 (2d Cir 1973). Moreover, the Notes of the Advisory

Committee on Rules - 1972 Amendment make clear that

the issuance of a search warrant is to be made only after

“careful’’ consideration as to whether there is probable

cause. Issues as to the validity of the warrant should be

raised at that time rather than relying upon the

availability of a later motion to suppress.

Contrary to Jacobs and Perial Amusement Corp., and

contrary to the admonition of the Advisory Committee,

the magistrate refused even to exercise his discretion as

to whether Petitioner should be allowed to be heard.

Even if he had limited Petitioner to the presentation of

argument rather than allowing a full hearing, Petitioner

still had substantial grounds (as evidenced by other

contentions made herein) which might have convinced

the magistrate that the warrant should not issue.

Admittedly, it is not commonplace that a defendant

seeks or receives the opportunity to be heard in

Opposition to the issuance of a search warrant. But

pre-Indictment adversary proceedings under Rule 41(e)

to determine the lawfulness of a search and seizure are

recognized. Fifth Avenue Peace Parade Committee v.

Hoover, 327 F Supp 238 (SDNY 1971). Cf. DiBella v.

United States, 369 US 121, 82 SCt 654 (1962). In view of

the fact that the Government had custody of the

automobile, defendant’s attempted appearance before

the magistrate was grounded upon the same procedures

and remedies available to him under Rule 41(e). Indeed

what was sought was considerably less intrusive upon

the Government's investigation than would be a motion

under Rule 41(e). Petitioner sought only to be heard

on the validity of the search warrant. Under the

circumstances, the magistrate, at the very least, was

guilty of an abuse of discretion in refusing to consider

whether defendant might be allowed to be heard prior

to the issuance of the warrant and in refusing to allow

Petitioner to be heard on that question.

II.

The decision of the Court of Appeals is in

conflict with the decisions of other circuits, and

improperly validated clearly improper

interference by the trial court in the jury’s

deliberations; the trial court’s conduct, and the

Court of Appeals’ validation thereof, bespeak a

need for guidance from this Court on the

question of the circumstances under which, and

to what lengths, supplemental jury instructions

are proper.

It is the contention of the Petitioner herein that the

totality of the Trial Court’s conduct incident to the

jury’s deliberations was improperly intrusive and

coercive of the jury, and violated both Rules 30 and 43

of the Federal Rules of Criminal Procedure as well as

the standards well established by the case law as

essential prophylaxis against improper interference with

fair, even-handed and impartial jury deliberations.

The jury had been out for some two and one half

days when it sent the following note to the Trial Judge:

After careful review of all of the evidence

presented to us, we cannot come to a unanimous

decision. We request your guidance in the

subsequent procedure.

Without consulting with counsel, the Trial Judge

caused a note reading ‘Please continue deliberations”

to be sent into the jury.

Certainly this ex parte communication with the jury,

without consulting with counsel, and outside the

presence of counsel and the Petitioner, was improper,

Shields v. United States, 273 U.S: 583 (1957), although

standing alone it would not constitute grounds for a

serious claim of error.

What is significant, however, is that the action of the

Trial Judge in sending this ex parte note signalled the

beginning of a quite extraordinary sequence of events

which, when viewed in their totality must be seen by

this Court as improperly intrusive upon the jury’s

deliberations and coercive of the jury’s verdict.

There is no question but that, although it certainly

cannot be considered an “Allen charge” the Trial

Court’s note of July 21, 1977, was a supplemental

instruction to the jury, although perhaps not unduly

coercive. However, it is well established that in

weighing whether supplemental instructions are

coercive, it is proper to consider all of the circumstances

surrounding the giving of the instructions. Jenkins v.

United States, 380 US 445, 446, 85 SCt 1059 (1965); United

States v. Seawell, 550 F2d 1159, 1163 (CA 9, 1977).

Shortly thereafter, and over objection, the trial judge

called the jury into the courtroom, and asked them if

they had yet arrived at a verdict. The Court then

inquired of them if there was any “need for further

instructions on the law,” and discharged them for the

evening with a request that they report back in the

morning as to the answer to the question posed.

In the morning, in accordance with the Court’s

instructions of the night before, the foreman of the jury

sent a note indicating that ‘The following items in law

would help explain in greater depth, the definition of

knowingly.”

Petitioner objected strenuously to the totality of the

procedure — in which the Judge solicited a request for

instructions — and to any instruction which went

beyond the instruction on “knowingly” which had

already been given. Nonetheless, the Court read a

proposed instruction to counsel, the specifics of which

Petitioner objected to in detail, as being less than

impartial, or going beyond the content of the Court’s

original instructions, adding elements of concepts

which he had not been advised of prior to argument,

and had not had an opportunity to argue regarding.

Notwithstanding such objections, the Court proceeded

to call the jury into the courtroom, inquire of them as to

whether or not they were still unable to reach a verdict,

and then read them both the supplemental instruction

regarding the proofs, and the “Allen charge” which had

previously been reviewed with counsel; approximately

one hour later, the jury found the Petitioner guilty.

The proofs and argument in the case at bar took some

eight hours to present to the jury. The jury’s

deliberations lasted approximately twenty-one hours —

twenty before the Court’s supplemental charges in

court, and one after. The jury had deliberated long and

hard over relatively short testimony, and given the

jury’s previous request for testimony it seems clear that

their deliberations had focused on what was indeed the

only issue in the case — whether the gun, which

admittedly had traveled in interstate commerce, and

which had admittedly been found in a secret

compartment of what was admittedly a previously

convicted Petitioner’s automobile, had been proven

beyond a reasonable doubt to have been placed there,

or “knowingly possessed” by the Petitioner.

The only argument which had been made by defense

counsel, and the entire thrust of all of the proofs which

had been adduced by the Petitioner was to suggest that

there was a reasonable possibility, consistent with the

physical facts and the credible testimony (indeed, the

defense did virtually nothing to attempt to impeach or

discredit any of the testimony presented by the

Government) that someone other than the Petitioner

had placedthe gun in the place where it had been

found. Indeed) in responding to a defense objection to

its charge advising the jury that ‘this is a simple case,”

the Court indicated that “this is one of the simplest

cases that I have ever tried so far as a jury’s obligations

is concerned.”

Against this background, it is, first of all, Petitioner's

contention that the fact that the jury verdict came in so

promptly after the Court’s pattern of re-instruction is

without more strong circumstantial evidence of

coercion. See, e.g., United States v. Petersen, 513 F2d

1133, 1136 (CA 9, 1975).

The jury had not announced itself deadlocked lightly.

Indeed, at the time that it made that announcement, it

had already deliberated for about twice as long as it had

taken the parties to present their proofs to them. Yet

the trial judge, notwithstanding his previous

declaration that “I don’t like to get involved in jury

deliberations,’”’ proceeded to:

1. Send, ex parte, a supplemental instruction

to continue their deliberations, in the form of a

tersely worded note.

2. Twice, in as many hours, called upon the

jury to declare whether they had yet reached a

verdict.

3. Indicated that he felt that the jury might

be having a “problem” with its understanding of

the law, and solicited a “‘request’’ for further

instruction (on, not surprisingly, what had

always been the only issue in the case).

4. Gave supplemental instructions on the

core question of the case which went beyond

what had originally been given to the jury, and

included elements which counsel had not been

advised of prior to argument (in violation of

Rule 30, Federal Rules of Criminal Procedure)

and which were in tone, substance, content and

context, biased and less than impartial, and

which tended to deprecate the Government's

burden of proof.

5. Coupled its instructions on the substantive

law with an immediate giving of an ‘Allen

charge’’ which was coercive in tone, was

coercively coupled with a supplemental

instruction on the law, went beyond that which

has been approved by this Circuit, and omitted

limitations and cautions which have traditionally

been constituted the second formal (and fourth

informal) exhortation to a verdict which had

been given in as many hours.

Dismayed the Petitioner may have been at the jury’s

prompt return of a guilty verdict, but surprised, the

Court may rest assured, he was not.

The question of when, and how, a federal trial judge

may respond a jury’s difficulty in arriving at a

unanimous verdict is one which has posed considerable

difficulty, and one to which this Court has spoken only

rarely.

Indeed, Petitioner’s research has disclosed no cases

speaking specifically to the propriety of a Trial Judge

soliciting a “request” for further instructions on the

substantive law. However, the Sixth Circuit, in United

States v. Barnhill, 305 F2d 164, 165 (CA 6, 1962),

recognized the difference between the effect of a trial

judge giving a supplemental instruction (there, an Allen

type charge, although the principle would seem to be

the same), on its own initiative, and responding to a

jury’s indicating of difficulties in its deliberations. It is

true that in the case at bar, the jury after lengthy

deliberation announced itself deadlocked, and so, in a

sense, initiated the series of events now complained of

in this appeal. However, the jury did not express a

difficulty with any aspect of the law or instructions at

any time during its deliberations, but only responded

to the Judge’s earnest solicitations that they may have a

“problem” with a response referring the Court to the

only area of the case that was ever in issue in the first

place. By that time the jury had already been instructed

on at least one occasion to continue deliberating (the ex

parte note), and been hied before the Bench, and asked

again if they had been able to reach a verdict, and had

it suggested to them that, first they may have been

having a “problem,” and, second, that they were to

receive additional instruction in the morning.

Obviously, the jury could only conclude that it was

doing something wrong, or that it had some failure of

understanding of the questions at issue. It did not

apparently feel it had such a failure of understanding

before the Court solicited the “request,” but Petitioner

would ask the Court how, in good conscience, the jury

could have thought otherwise, after the judge had

treated them the way he had.

The Court’s response to the solicited ‘‘request’”’ for

instructions on the term ‘‘knowingly” not only went

beyond the terms of the request — and included a

further instruction (absent the usual and previously

given cautionary predicate on circumstantial evidence)

and on drawing inferences from testimony given — but

also went well beyond anything which defense counsel

had had an opportunity to argue, in plain contravention

of the mandate of Rule 30, Federal Rules of Criminal

Procedure; but the Trial Judge did not stop there —

rather, he framed the supplemental substantive

instruction in terms which were manifestly partial

towards the prosecution, emphasizing what did not have

to be proved, and barely touching on what did. Coming

against the background of the Court’s tersely worded

note to continue deliberations, and its subsequent

inquiry as to whether the jury had reached a verdict, an

expression of perception that the jury may be having a

“problem,”” and given in conjunction with the Allen

type charge which it immediately preceded, the

instruction could only have been taken by the jury as

an exhortation to convict the defendant.

Analysis of the propriety of these instructions might

well begin with this Court’s admonition in Bollenbach v.

United States, 326 US 607, 612 (1945), that ‘particularly

in a criminal trial, the Judge’s last word is apt to be the

decisive word.”” However, analysis cannot end there.

The fact is that although this Court’s decision in Allen

v. United States, 164 US 492 (1896), seems to have been

taken as defining the ‘outer limits” of a Federal trial

Court’s involvement in a jury’s deliberations, United

States v. Scott, 547 F2d 334 (CA 6, 1977), Supreme Court

precedents regarding other aspects of post-instructional

interface between judge and jury are rather limited.

The Circuit Courts have taken a relatively restrictive

view of the permissible intervention of a trial judge

with the jury’s deliberations. Thus, courts have been

quick to strike down supplemental instructions which,

while they may not be legally inaccurate, are so framed

as to be prejudicial to a defendant, particularly in an

especially sensitive context of a supplemental

instruction. Thus, in United States v. Carter, 491 F2d

625, 633-634 (CA 5, 1974), the trial judge, in response to

a request from the jury for further instruction on

“circumstantial evidence,’ gave two _ illustrations

indicating the difference between direct and

circumstantial evidence, “both of which pointed toward

the guilt of the accused,” and further went beyond a

circumstantial evidence instruction in advising the jury

that it could infer guilt from possession or recently

stolen property, unless such possession was

satisfactorily explained. The Court noted:

In the present case the instructions requested by

the jury were not inherently favorable to either

side; but the trial court went beyond the request

to provide additional instructions strongly

emphasizing the theory of the prosecution. 491

F2d supra at 634.

As in the case at bar, the Trial Court had omitted

cautions originally given in its principal charge which

might have served to rectify the perceived imbalance.

The Court noted, however, that the ‘words, phrases,

and paragraphs of a judge’s response to a question

raised by the jury after a period of deliberation cannot

reasonably be considered as merely additional language

in the basic charge,”” 491 F2d supra at 633, and noted

this Court’s ruling in Bollenbach, supra, that if a specific

ruling on a vital issue is misleading in some fashion,

the error is not cured ‘‘by a prior unexceptional and

unilluminating abstract charge.”” (326 US supra at 612,

66 SCt supra at 405.)

The supplemental instructions in Carter were

analytically quite similar to those complained of in the

case at bar, in that they went beyond the jury’s

“request’’ for further instruction, and were not

even-handed in their treatment of the apparently vital

issue. The Court of Appeals reversed the defendant's

conviction in Carter with the following admonition,

which went unheeded in the case at bar, and against

which the affirmance of the Petitioner's conviction

stands in stark contrast:

A trial judge must be accutely sensitive to the

probability that the jurors will listen to his

additional instructions with particular interest

and will rely more heavily on such instructions

than on any single portion of the original charge.

Thus, the Court must exercise special care to see

that inaccuracy or imbalance in supplemental

instructions do not poison an otherwise healthy

trial. 491 F2d supra at 633.

Similarly, in United States v. Miller, 546 F2d 320, 324

(CA 9, 1976), the Ninth Circuit struck down a

conviction which had followed hard on the heels of

supplemental instructions on the area of witness

credibility, but which had “somehow” omitted the

cautionary instruction (previously given in the charge

in chief) instructing the jury to weigh an accomplice’s

testimony with great care.

As the Court wrote in Powell v. United States, 347 F2d

156, 158 (CA 9, 1965):

It is no answer to say that the supplemental

instruction was correct so far as it went; or that

it was to be read in the light of the original

instructions and that these fairly presented the

issues.

Conflict between instructions in chief and in

supplemental instructions must be carefully considered,

and the effect they might have on the jury’s

deliberations carefully weighed, Tennant v. United

States, 407 F2d 52, 53 (CA 9, 1969), and in light of the

great care which is appropriate in the context of

supplemental instructions, it seems clear that

instructions such as those in the case at bar, which,

although perhaps technically accurate, emphasized to an

inordinate degree what need not have been proved by

the Government, are so terribly prejudicial as to,

without more, require vacation of the conviction.

Even if the instructions had been more even-handed,

they would still have been improper, inasmuch as

they introduced into the case concepts and instructions

which had not been given in the original instructions,

and which Petitioner had not had an opportunity to

argue, as Rule 30, Federal Rules of Criminal Procedure

is designed to guarantee. Indeed, this deficiency was a

strong basis of the Petitioner's objection to the giving

of the instruction. Rule 30, of course, provides that

prior to argument, “the Court shall inform counsel of its

proposed action” in connection with the charge.

Manifestly it is the purpose of the Rule that counsel

may effectively plan their arguments to the jury. United

States v. Bass, 425 F2d 161, 163 (CA 7, 1970). While it is

undoubtedly true that instructions different from those

agreed upon prior to argument may be given if the

argument of counsel is misleading or deceptive, see e.g.,

United States v. Shirley, 435 F2d 1076, 1078 (CA 7, 1970),

nothing in defense counsel’s argument in the case at

bar justified the expansion of the Court’s instructions

represented by the supplemental charge given here.

Although it is the position of the Petitioner herein

that the above instructions were so prejudicial in and of

themselves, and so prejudicially framed, that, without

more, reversal of his conviction is mandated, it seems

clear that the prejudicial and coercive effect of the

instructions was exacerbated by the context in which

they were given.

The basic issue, of course, is that of coercion. As the

Court of Appeals for the District of Columbia Circuit

wrote in its exhaustive treatment of supplemental

instructions in United States v. Thomas, 449 F2d 1177,

1181 (CA DC 1971) (en banc), “the line separating

proper guidance from improper coercion is fine, and its

precise location is not always clear.’’ However, in the

case at bar, as in Thomas, the Trial Court “urged a

verdict, not only through Allen admonitions, but by

other expressions to the jury as well.” Indeed, the

biased and exhortative aspects of the supplemental

instructions already discussed were underscored and

driven home both by the context in which the

instructions were given, and by the fact that the Trial

Judge followed these instructions immediately with an

Allen-type charge, which was itself improperly coercive.

The supplemental instruction in the instant case went

beyond the permissible limits of an Allen-type charge,

as that decision of this Court has been developed by

the Circuits.

The trial judge stressed the “importance” of the case

to the parties, the ‘‘fact’’ (disputed on the record by

Petitioner's counsel) that the case could not have been

tried any better, and, most significantly, the expense

which a retrial would involve.

It does not appear that the expense involved in trying

a lawsuit was an element of the original charge

originally approved by this Court in Allen. Indeed, the

Sixth Circuit itself, has disapproved a charge in which

the matter of the expense involved in a trial was

mentioned only once, as distinguished as the charge in

the case at bar, in which the Court twice refers to the

expensive and burdensome nature of litigation —

although in that case, it was held that defense counsel

had invited the error. United States v. Harris, 391 F2d

348, 354 (CA 6, 1968):

The Judge’s statement in regard to the expense

and burden of conducting a trial is an extension

of the Allen charge and, in our judgment, a

questionable extension, especially where this

factor is unduly emphasized.

Accord, United States v. Burley, 460 F2d 998 (CA 3, 1972).

Indeed, such references are properly held to be

impermissible extensions of the Allen charge, since, as

one commentator has noted: The expense of a new trial

falls more heavily on the plaintiff or prosecution than

on the defendant.” Note, On Instructing Deadlocked

Juries, 78 Yale Law Journal 100, 139 (1968).

Finally, the Court must consider the charge in the

context in which it was given to the jury. See United

States v. Taylor, 530 F2d 49, 51 (CA 5, 1976). It must be

remembered that the charge in question was the second

exhortation to the jury to continue their deliberations

(the first, of course, being the note sent by the Court

the day before). Moreover, it came close upon the heels

to inquiries as to whether or not the jury had been able

to reach a verdict and, as well, upon the Court's

suggestion that the jury had been having a “problem”

understanding its instructions on the law, as well as a

supplemental instruction on the substantive law which

was, as argued above, itself coercive of a verdict against

the Petitioner.

Although it is the position of the Petitioner that the

supplemental instructions on the substantive law were

inappropriate, coercive and erroneous, nonetheless the

Trial Court might well have waited a bit to see if they

would have the desired effect of breaking loose the

jury’s decisional impasse. This, Petitioner would

contend, is especially true where, as here, they had

already been urged to continue their deliberations.

Adding the Allen charge to the other supplemental

instructions, Petitioner submits, was a little bit like

using a sledge hammer to swat a fly. The decision of

the Ninth Circuit Court of Appeals in United States v.

Seawell, 550 F2d 1159, 1163 (CA 9, 1977), is, defendant

submits, instructive, if not dispositive with respect to

this last point. In Seawell, the Court held that it is

reversible error to repeat an Allen charge in a federal

prosecution after a jury has reported itself deadlocked

and has not itself requested a repetition of the

instruction. While it is true that the Court only gave the

“Allen charge” in the case at bar once, it would seem to

the Petitioner, and it must appear to the Court, that the

other supplemental instruction, at least when taken

with the rest of the Court’s previous handling of the

jury's decisional difficulties, was at least in coercive

effect, the equivalent of having given an Allen charge

once before. Accordingly, the giving of the Allen charge

at the point in time that it was given, was, under the

circumstances of the case, premature, and that even had

the charge been properly confined to the permissible

limits of such an instruction, the very fact that it was

given was unduly and improperly coercive. Cf. United

States v. Contreras, 463 F2d 773 (CA 9, 1972).

All in all, the conduct of the trial court in the case at

bar went far beyond the level of involvement in jury

deliberations which is, or ought to be, ordinarily

permitted of a Federal trial judge. The Sixth Circuit

court of appeals, while expressing some reservations

about the wisdom of the course of conduct pursued by

the trial judge, acted in marked contrast to the general

trend of decisional authority among the several Circuits

in affirming the propriety of that conduct. This Court

should grant certiorari both to rectify the injustice

manifested in the instant case, and to establish

standards to guide other federal trial judges in their

handling of the delicate situations often presented when

a jury has difficulty arriving at a unanimous verdict.

III,

The decision of the Court of Appeals is in direct

conflict with the principles established in this

Court’s decision in Marshall v United States, 360

U.S. 310 (1959), in that the Court of Appeals

erroneously affirmed the trial judge’s denial of

Petitioner’s challenges for cause to trial jurors

who admitted both unfavorable attitudes

toward Petitioner, and the possession of

extrajudicially-acquired facts about specific

allegedly criminal acts of the petitioner,

unconnected with the charge for which he was

on trial, and about which proof would not have

been admissible.

Almost all of the prospective jurors examined in

selecting the jury in the case at bar were familiar with

the Petitioner’s surname — thirty out of thirty-three.

Although seven of the jurors interviewed did not

attach any connection to their familiarity with the

name, and one juror felt that she had heard the name in

a good context, more than two-thirds of the jurors

associated some negative connotation with the name.

The connection most often made with the name was

with “organized crime,’’ although three jurors

associated the name with the discovery of a gun, three

jurors connected the name with a previous prosecution,

four jurors connected the name with the disappearance

of James R. Hoffa, and a number of other jurors

connected the name only generally with crime, the

underground, or people who wore “black hats.’’

Petitioner raised six challenges for cause, and the Court

denied all six.

” 41

The factual basis underlying the three challenges for

cause which framed the basis for this argument on

appeal may be briefly summarized:

Juror Gray - Ms. Gray, when asked what her

association might be with the name Giacalone,

Juror Glantz - Mr. Glantz indicated that the

name Giacalone had a connotation in his mind

of “something to do with crime;” juror Glantz

further indicated that he “was more or less

under the assumption” that Mr. Giacalone was

associated with criminal endeavors as a matter of

profession, trade or calling; however, t.1.e Court

sustained a Government objection to a line of

questioning which began to explore whether or

not Mr. Glantz would embark upon his duties as

a juror with that assumption. The juror

indicated, in response to a question as to

whether his assumptions about the defendant

would have an effect on his thinking in the case

with the response: “Well, I would listen to the

evidence. I think I would.”

Juror Noffert - Mr. Noffert indicated, in

response to questions about whatever

associations he might make with the name

Giacalone that he had previously been employed

at a finance company, servicing outstanding

loans, and that one of his customers was making

payments on thirteen loans, one of whom was to

Mr. Giacalone. He further indicated that he

associated the name through pre-trial publicity

with organized crime and he indicated further

that he suspected at the time that he came across

the loan transaction that he had referred to at

first, that there was some connection between

that transaction (which seemed abnormal to him)

with some kind of organized criminal activity.

could not be specific about where she associated

the name, but did indicate that she had a ‘bad

connotation, a bad feeling about the name;”’ that

she thinks of the name as being “involved with

crime, or organized crime, and I guess, for that

reason, it leaves a bad feeling with me.” She

indicated that she felt that Mr. Giacalone had a

bad reputation, and that it was true that he was

involved in organized crime; she volunteered the

term “Mafia” in that connection. Finally, Ms.

Gray indicated that she would not want to meet

Mr. Giacalone in a social setting, and that if she

learned that he was buying the house next to

her, she would “probably get a little worried.’

Of course, all of these jurors at one point or another,

indicated that they could be fair and impartial, could

base their decision only upon evidence, instructions

and the other proprieties of a trial, and volunteered no

reason why they felt they should not be seated as

jurors.

As this Court wrote in Patterson v. Colorado, 205 US

454, 462 (1907):

The theory of our system is that the conclusions

to be reached in a case will be induced only by

evidence and argument in open court, and not

by any outside influence, whether of private talk

or public print.

Since it is impossible to operate with mathematical

assurance and precision in the arena of human thought

and behavior, ‘‘our system of law has always

endeavored to prevent even the probability of

unfairness.” In re Murchison, 349 US 133, 136 (1955)

(emphasis in original). Certainly, a trial judge has a

great deal of discretion in ruling on the issue of

prejudice resulting from pre-trial publicity, but, as the

Court noted in Silverthorne v. United States, 400 F2d 627,

637 (CA 9, 1968), “discretion is not a substitute for

duty.”

It strongly appears, when the totality of the voir dire

in the case at bar is examined, that there is an

underlying current and pattern of prejudice against the

Petitioner in the Eastern District of Michigan; as noted

above more than half the jurors examined associated the

Petitioner's name (with varying degrees of specificity)

with negative, anti-social things. Although it is not the

position of the Petitioner that he was the victim of

“such a pattern of deep and bitter prejudice,” Ervin v.

Dowd, 366 US 717 (1961), has made a fair trial in the

community impossible, nonetheless, it seems clear

enough that with the pervasive negative community

sentiment against which virtually a majority of the

jurors came to the trial, the possibility of prejudice on

the part of a particular jury, or arising from particular

facts or knowledge in the possession of an individual

juror, was one to which the Trial Court should have

been especially sensitive, because it was one which

posed a particularly real and imminent danger.

Each of the three jurors felt that they had specific

information about the Petitioner which would not have

been admissible upon the trial of the cause, which was

gleaned from extrajudicial sources, and which was of

course terribly prejudicial to the Petitioner. Ms. Gray,

for example, in addition to harboring a basic animus

toward or fear of the Petitioner, felt that it was true that

he was associated with “the Mafia’; Mr. Glantz

“assumed” that the defendant was a_ professional

criminal; and of course, in the case of Mr. Noffert, the

problem was especially accute, because he felt he had

knowledge of a crime or some criminal activity, which

he felt Petitioner had been involved in and with which,

of course, Petitioner has never been charged, much less

convicted.

The basic principles of law applicable to a situation

such as the one posed by the case at bar are clear

enough.

In Marshall v. United States, 360 US 310 (1959), the

Court reversed a conviction of a defendant in a criminal

case where it was shown that a “substantial number of

jurors” had read newspaper articles during the trial

which contained accounts of the defendant’s previous

convictions and incarcerations. The Court wrote:

We have here the exposure of jurors to

information of a character which the Trial Judge

ruled was so prejudicial it could not be directly

offerred as evidence. The prejudice to the

defendant is almost certain to be as great when

that evidence reaches the jury through news

accounts as when it is a part of the prosecution s

evidence. Cf. Michaelson v. United States, 335 US

469, 475, 69 SCt 213, 218, 93 LEd 168 [1948]. It

may indeed be greater for it is not then

tempered by protective procedures. 360 US supra

at 312 - 313, 79 SCt supra at 1173.

Michaelson, cited by the Court, of course, stands

generally for the proposition neither character evidence

nor specific previous bad acts of the defendant, are

admissible in the prosecution’s case in chief, “‘even

though such facts might logically be persuasive that he

is by propensity a probable perpetrator of the crime.”

335 US supra at 475. The Court continued:

The inquiry is not rejected because character is

irrelevant; on the contrary, it is said to weigh

too much with the jury and so overpersuade

them as to prejudge one with a bad general

record and deny him a fair opportunity to

defend against a particular charge. 335 US supra

at 475-476, 69 SCt supra at 218.

In the case at bar, each of the three jurors here in

question felt themselves to be in possession of exactly

the kind of information which might “logically be

persuasive’ that the Petitioner herein was ‘by

propensity a probable perpetrator of the crime charged.

The principle outlined in Marshall is recently

explicated by the Fifth Circuit Court of Appeals in

United States v. Williams, —— F2d ——, 22 Cr L Rptr

2521, 2522 (CA 5, 2-27-78). In Williams, the Court

cogently observed that exposure to information

regarding a defendant’s prior criminal acts may be

“perhaps even more damaging” than exposure to

information regarding a defendant's prior conviction.

The Court noted however, that:

Reversal is not required in every case in which a

newstory containing facts inadmissible in

evidence reaches the jury. The inadmissibility of

the newsreports’ contents is only one factor to be

considered, and the crucial issue is the degree

and pervasiveness of the prejudicial influence.

Id.

The pervasiveness of the prejudicial influence in the

case at bar is, Petitioner submits, amply illustrated

above.

The Fifth Circuit noted as well in Williams that a

juror’s assurance that he or she could be fair can hardly

be conclusive of the question: “The effective exposure

to extrajudicial reports on a juror’s deliberations may be

substantial even though it is not perceived by the juror

himself, and a juror’s good faith cannot counter this

effect.”

Such an observation, of course, is in accordance both

with common sense and with the American Bar

Association’s Standards Relating to Fair Trial and Free

Press. It is, for example, noted in the comments thereto

(Approved Draft, 1968, at page 64):

First, the processes by which beliefs are formed

and adhered to, and their effect on perception,

appear to take place to a large extent below the

level of consciousness. Thus a juror’s good faith

efforts to lay these beliefs aside cannot be

determinative. Se.ond, even exposure to accurate

information can cause difficulty, because unless

it is complete in every way, with all the

necessary nuances and shadings, it seems likely

to instill a belief that will be hard to shake and

that will color the juror’s perceptions of the

evidence adduced in Court. (emphasis is

original)

With respect to jurors who have been exposed to and

remember reports of incriminating matters ‘‘that may be

inadmissible in evidence, or particularly inflammatory

materials,” the Commentary notes that such a juror

“should be subject to challenge for cause whether or not

he admits to an opinion.” Standards, supra, at 137.

Frne ~~.

The decision of the Sixth Circuit in the case at bar

stands in marked conflict both with the teachings of

this Court in such cases as Marshall, supra, and the

American Bar Association Standards, as well as

authorities from other circuits, such as is exemplified

by United States v Williams, supra. Accordingly, a writ of

certiorari should issue, and the Petitioner’s conviction

be reversed.

CONCLUSION

It is therefore respectfully submitted that this Court

should grant the Petition for Writ of Certiorari to

review the substantial questions herein posed.

Respectfully submitted,

N. C. DEDAY LARENE

Attorney for Petitioner

1500 Buhl Building

Detroit, Michigan 48226

(313) 962-3500

Dated: February 20, 1979

APPENDIX A

OPINION

(United States Court of Appeals

For the Sixth Circuit)

(United States of America, Plaintiff-Appellee, v. Vito

Giacalone, Defendant-Appellant.—No. 78-5055).

(Decided and Filed December 18, 1978.)

Before: Phillips, Chief Judge; Celebrezze and Engel,

Circuit Judges.

ENGEL, Circuit Judge. Vito Giacalone was found

guilty in a jury trial of unlawful possession and receipt

of a firearm by one having been convicted of a felony,

in violation of 18 U.S.C. § 1202(a)(1) (Appendix) (1976).

On direct appeal he challenges the procedures which

produced the weapon in question, complains that the

trial judge committed reversible error in refusing to

excuse three jurors for cause, and finally complains that

the trial judge unfairly supplemented the charge to the

jury, thereby coercing it into convicting him. We

affirm.

THE SEARCH AND SEIZURE

The incident which resulted in Giacalone’s indictment

and ultimate conviction here arose when Giacalone was

arrested upon a federal warrant charging him with

operation of an illegal numbers business and a related

conspiracy charge. Giacalone was arrested by federal

authorities at 4:41 p.m., March 29, 1977, as he was

entering, or about to enter,’ his Cadillac automobile

which was then parked in the parking lot of the

Southfield Athletic Club, a private club near Detroit. At

the time of the arrest, the FBI agents seized but did not

search Giacalone’s automobile. There was outstanding

an application by the government for a seizure warrant

under 18 U.S.C. § 1955(d) upon the theory that the

automobile was subject to forfeiture because of its

alleged use in the gamling operation. The search

warrant had not been issued at the time of Giacalone’s

arrest and the seizure of the car, and apparently it was

ultimately later denied by a magistrate. A few minutes

after Giacalone was arrested, Special Agent Donald C.

Bretnell, while inside the Southfield Athletic Club,

spotted Dominic Vivio, recognized by him as Mr.

Giacalone’s driver, engaged in a_ telephone

conversation. At that time he overheard Vivio state his

concern that if the police searched the car, “they

[might] find the goddamn thing in there.”” A

confidential informant, ‘FBI-2”, likewise overheard

Vivio tell the defendant Giacalone, “[w]e’ve got to get

that gun out of there right now.” The preceding January

the FBI had been informed by another confidential

informant, ‘‘FBI-1’’, that he ‘‘had overheard a

conversation between Vito Giacalone and an

unidentified white male during December 1976 where

Giacalone stated he, Giacalone, had recently installed a

1 The evidence varies somewhat, and the district court did not

make an express finding concerning Giacalone’s precise location at

the time of the arrest. In view of our decision to uphold the seizure

on other grounds, we need not address whether the detention and

search of the automobile may be sanctioned as incident to

Giacalone’s arrest. See generally United States v. Lewis, 504 F. 2d 92,

103-04 (6th Cir. 1974), cert. denied, 421 U.S. 975 (1975).

secret compartment in his. Cadillac.” FBI-1 added

corroborating details concerning the car’s description

and license number. A conversation involving

Giacalone which FBI-2 had overheard in February, 1977

also squared with what FBI-1 had stated concerning the

December, 1976 conversation.2 On the basis of the

foregoing information and further noting Giacalone’s

status as a convicted felon, the FBI prepared an affidavit

for presentation to the district court in its application

for a search warrant.? Meanwhile the automobile was

taken into possession and transported from the

Southfield Athletic Club to the FBI garage where it was

secured until the warrant was issued. The search took

place the following day, March 30, pursuant to the

warrant. In a secret compartment installed beneath the

dashboard of the Cadillac the FBI discovered a Smith

and Wesson pistol.

While appellant urges that the affidavit for the search

warrant was insufficient, an assertion which we find

without merit, his primary complaint is that the

information which was incorporated in the affidavit and

provided the probable cause was itself illegally obtained

because it was the product of the warrantless seizure

and detention of Giacalone’s automobile which had

occurred at the time of his arrest on March 29.

2 The affidavit presented to the court in the search warrant

application recited a sufficient basis for the reliability of FBI-1 and

FBI-2, noting and describing previous occasions on which they had

provided accurate information to law enforcement officials.

* Apparently, the government had elected to first seek a warrant

based upon the forfeiture statute, 18 U.S.C. § 1955(d), rather than

the felon-in-possession charge in order to avoid revelation of its

informants, notably FBI-1.

The temporary detention of Giacalone’s car at the

time of his arrest, while awaiting the issuance of a

search warrant, was certainly not unreasonable, even

though the forfeiture warrant which was originally

sought was not issued. Coupled with the information

contained in the search warrant affidavit, the

government’s evidence at the suppression hearing

sufficed to establish that at the time the automobile was

first detained in the parking lot of the Southfield

Athletic Club the government had probable cause to

believe it contained the hidden firearm.* In the

meantime, of course, the agents became possessed of

further hard evidence which would and did, indeed,

support the issuance of a search warrant. Their

detention meanwhile of the automobile, whether in the

parking lot or, as here, at a police compound following

its removal, represented a reasonable and minimal

intrusion justified by the exigent circumstances. $5

* Testifying at the suppression hearing, Special Agent Bretnell

indicated that he had read an informant report which FBI-1 had

submitted to the Bureau prior to March 29, 1977. The report revealed

that Giacalone himself told FBI-1 that there was a gun in his car.

This information was not, however, incorporated in the search

warrant affidavit and we have not considered it in our review of the

warrant, although it has been considered in judging the warrantless

detention of the Cadillac on March 29.

5 Cf. Chambers v. Maroney, 399 U.S. 42 (1970) (An automobile

seized in a parking lot was taken to a station house and searched).

“For constitutional purposes, we see no difference between on the

one hand seizing and holding a car before presenting the probable

cause issue to a magistrate and on the other hand carrying out an

immediate search without a warrant. Given probable cause to

search, either course is reasonable under the Fourth Amendment.”

399 U.S. at 52. In view of our conclusion that the FBI had probable

cause at the time it detained Giacalone’s car, we need not address

the government's claim that the mere detention of an automobile

pending the issuance of a warrant is subject to less demanding

strictures than a seizure and search. See generally Terry v. Ohio, 392

U.S. 1 (1968); United States v. Van Leeuwen, 397 U.S. 249 (1970).

Nor can we accept appellant’s argument that the

warrantless detention of the Cadillac, although

supported by probable cause and exigency, was

nonetheless unreasonable because it represented an

effort to avoid prior review by a magistrate and thus

frustrate the warrant requirement. See generally United

States v. Chuke, 554 F. 2d 260, 263-64 (6th Cir. 1977). In

our judgment, the government's conduct represents

scrupulous adherence to _ the_ standards of

reasonableness which the Supreme Court has

determined are mandated under the Fourth Amendment

in conjunction with the seizure and search of

automobiles.

The facts of this case fully suggest the propriety of the

exception to the warrant requirement in Carroll v.

United States, 267 U.S. 132 (1925), in which the Court

distinguishes searches of stable structures such as

dwelling houses from the “search of a ship, motor boat,

wagon or automobile, for contraband goods, where it is

not practicable to secure a warrant because the vehicle

can be quickly moved out of the locality or jurisdiction

in which the warrant must be sought.” 267 U.S. at 153.

The automobile exception in Carroll has been repeatedly

reaffirmed by the Supreme Court and in United States v.

Chadwick, 433 U.S. 1, 12 (1977), the Supreme Court

further noted that the vehicle’s mobility is not the sole

touchstone, since warrantless searches have been

upheld “in cases in which the possibilities of the

vehicle’s being removed or evidence in it destroyed

were remote, if not nonexistent.’’ Cady v. Dombrowski,

413 U.S. 433, 441-42 (1973). A further justification for

this exception to the warrant requirement lies in the

diminished expectation of privacy pertaining to an

automobile. Chadwick, supra, 433 U.S. at 12-13.

ti al

Finally, appellant’s assertion that somehow the

alleged unlawful physical seizure of the automobile

unlawfully produced the evidence which was

incorporated in the application for a search warrant is

without merit. The officer's seizure of the automobile,

wrongful or not, produced none of the information

concerning the presence of a gun in the car upon which

the valid search warrant was later issued. The gun

cannot, therefore, be said to be the fruit of any alleged

illegality in detaining the car. Good police work, not an

unlawful seizure, produced the evidence which led to

the search warrant and ultimately to the seizure of the

pistol.

II.

THE JURY VOIR DIRE

The trial court conducted a separate voir dire of the

venire to determine the possibility of disqualification

due to prejudice, with each of the prospective jurors

being examined individually and out of the hearing of

the other jurors. Defense counsel was permitted to

question the jurors directly after the court had

concluded its questioning. Giacalone asserts that the

trial court erred in failing to grant his motion to strike

for cause three prospective jurors, Glantz, Noffert and

Gray. When the challenge for cause was denied,

Giacalone exercised his peremptory challenges to excuse

the jurors so that none served on the jury which

ultimately ruled on his guilt. At the same time

Giacalone asserts that the court’s refusal to strike the

jurors for cause prejudiced him by forcing him to

exercise his peremptory challenges, diminishing the

number of such challenges which he was otherwise

entitled under the law to employ.

In each case the cause asserted was the

acknowledgement by the juror that he had heard of

Giacalone or his surname prior to the trial, and had

associated it in one way or the other with illegal or

improper activities. Thus, Gantz thought that he had

heard the name Giacalone as far back as ten or twelve

years previously, possibly as the name of a former

owner of a store in which he had worked, and that the

name generally in his mind had “something to do with

crime, I guess.” Juror Noffert had raised his hand when

the court asked whether any jurors had heard the name

of Vito Giacalone before. Mr. Noffert informed the court

and defense counsel that he had worked for a finance

company eight or nine years previously and that one of

the men receiving the payments on one of the loans, he

believed, was Giacalone. Noffert also indicated that he

had read Giacalone’s name in the papers and in articles

concerning organized crime. Under questioning by

counsel for the defendant, Noffert had indicated that at

the time he had considered the loan activity abnormal,

but in answer to whether he thought there was

“something shady or something funny about those

loans”, Noffert indicated that he had no idea since the

transaction had taken place prior to his employment by

the company and that he had merely serviced the loan

some years ago. Juror Gray indicated that she had heard

the name on the news and on radio and that she had “‘a

bad connotation, a bad feeling, about the name. But, I

couldn’t say a specific case.... Well, I think of the

name involved with crime, or organized crime, and I

guess, for that reason, it leaves a bad feeling with me.’”°

Further questioning by the court, however, made it

clear that each juror was willing to put aside any prior

opinion or knowledge he or she might have concerning

the defendant and to judge the question of his guilt or

innocence solely on the basis of the facts adduced at

trial. No juror indicated any knowledge of the incident

involved in the trial. While we believe it would

probably have been wiser to have excused the jurors for

cause, we cannot say that the failure to do so was an

abuse of the discretion entrusted to the court in such

matters, and it is clear to us that the amount of

knowledge possessed by the jurors was not sufficient to

have demanded invariably that they be excused for

cause. No predisposition to convict is evident in the

answers and in fact the very candor of the jurors, taken

with skillful handling by the trial court, may well have

produced in them a greater receptivity to accord

Giacalone a fair trial than might have resulted had they

had no information at all or not been questioned.

6 It is possible that some adverse association might have

stemmed from an identification of the name Giacalone with Vito's

brother Anthony, whose conviction has recently been affirmed by

this court in United States v. Giacalone, 574 F. 2d 328 (6th Cir.), cert.

denied, 47 U.S.L.W. 3202 (U.S. October 3, 1978); see also United States

v. Giacalone, 541 F. 2d 508 (6th Cir. 1976) (en banc) (motion for

return of a blood-stained automobile belonging to Vito’s nephew,

Joseph Giacalone, and seized in connection with an FBI

investigation into the disappearance of former Teamsters’ president

James Hoffa). No motion for change of venue on that account was

made, nor was any knowledge of the legal difficulties of defendant's

relatives evident upon the record here.

The facts here are not unlike those in Murphy v.

Florida, 421 U.S. 794 (1975), wherein the Supreme Court

upheld the petitioner’s conviction by a jury composed

in part of persons who had some acquaintance with the

robbery for which Murphy had been indicted and of

others who had indicated their knowledge of Murphy’s

past crimes. Analyzing the publicity evident in the

record, the Supreme Court stated:

The constitutional standard of fairness requires

that a defendant have “a panel of impartial,

‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S.

(717,] 722 [(1961)]. Qualified jurors need not,

however, be totally ignorant of the facts and

issues involved.

“To hold that the mere existence of any

preconceived notion as to the guilt or

innocence of an accused, without more, is

sufficient to rebut the presumption of a

prospective juror’s impartiality would be

to establish an impossible standard. It is

sufficient if the juror can lay aside his

impression or opinion and render a

verdict based on the evidence presented

in court.” Id., at 723.

At the same time, the juror’s assurance that he is

equal to this task cannot be dispositive of the

accused’s rights, and it remains open to the

defendant to demonstrate “the actual existence of

such an opinion in the mind of the juror as will

raise the presumption of partiality.” Ibid.

421 U.S. at 799-800. The degree of potential prejudice

evident in the record here is considerably less than

A10

that shown in Murphy. In Murphy, as here, “[t]he voir

dire .. . indicates no such hostility to petitioner by the

jurors who served in his trial as to suggest a partiality

that could not be laid aside.” Id. at 800.

And in Dobbert v. Florida, 432 U.S. 282 (1977), the

Supreme Court observed:

Petitioner’s argument that the extensive

coverage by the media denied him a fair trial

rests almost entirely upon the quantum of

publicity which the events received. He has

directed us to no specific portions of the record,

in particular the voir dire examination of the

jurors, which would require a finding of

constitutional unfairness as to the method of jury

selection or as to the character of the jurors

actually selected. But under Murphy, extensive

knowledge in the community of either the

crimes or the putative criminal is not sufficient

by itself to render a trial constitutionally unfair.

Petitioner in this case has simply shown that the

community was made well aware of the charges

against him and asks us on that basis to

presume unfairness of constitutional magnitude

at his trial. This we will not do in the absence of

a “trial atmosphere ... utterly corrupted by

press coverage,’’ Murphy v. Florida, supra, at 798.

432 U.S. at 303. It is true that Irvin, Murphy and Dobbert

applied a constitutional standard to state prosecutions

and that we are involved here with the proper

application of federal rules and of our broader

supervisory powers over the trial of a defendant in a —

federal criminal prosecution. Cf. Murphy v. Florida,

All

supra, 421 U.S. at 803-04 (Burger, C.J., concurring in the

judgment). Nevertheless, the standards of Murphy v.

Florida and Irvin v. Dowd have been followed by our

court in federal prosecutions. Relying upon Murphy and

Irvin, we held in United States v. Gay, 522 F.2d 429 (6th

Cir. 1975):

If a juror can lay aside any preconceptions about

the case and try it solely on the evidence

presented in court, it is not error to fail to

dismiss such a juror for cause.

Id, at 432. See also United States ex rel. Stickler v. Tehan,

365 F.2d 199 (6th Cir. 1966), cert. denied, 386 U.S. 992

(1967), and United States v. Mitchell, 556 F.2d 371 (6th

Cir.), cert. tenied, 434 U.S. 925 (1977).

There having been no abuse of discretion in failing to

strike the jurors for cause and there being no challenge

to the jurors who actually served, there is even less

merit to the suggestion that in some indistinct way,

Giacalone’s exhaustion of his peremptory challenges

and his inability to exercise more in some way entitles

him to a new trial. The trial court enjoys a superior

perspective as to which alleged prejudices are real and

which are imagined, and its judgment must ordinarily

be respected.

In some instances all jurors, or all intelligent jurors at

least, will have had some exposure through the news

media either to the defendant’s reputation or to the

offense with which he is charged. See, e.g., United

States v. Haldeman, 559 F. 2d 31, 59-71 (D.C. Cir. 1976)

(en banc), cert. denied, 431 U.S. 933 (1977); United States

v. Johnson, No. 77-5315, et al. (6th Cir., decided

September 28, 1978). There must necessarily be a broad

Al2

margin for discretion in the trial court to determine

challenges for cause. Mitchell, supra, 556 F.2d at 379. It

is for precisely this reason that peremptory challenges

are provided, not as a matter of constitutional

requirement, but rather as an additional safeguard even

where the danger of prejudice is not of constitutional

proportions. That Giacalone was able to take advantage

of the cushion provided by the exercise of peremptory

challenges reflects not a denial of justice but the

achievement of it under good rules designed for the

purpose.

III.

JURY INSTRUCTIONS

Giacalone’s final allegation of error concerns the

actions of the trial court after the jury had retired to

deliberate upon a verdict. After two and one-half days

of deliberations, the jury delivered a note to the court

which stated:

After careful review of all of the evidence

presented to us, we cannot come to a unanimous

decision. We request your guidance in the

subsequent procedure.

The inquiry came at a time when neither the defense

counsel nor the defendant was available and the court,

five to ten minutes after the inquiry was received,

delivered a note to the jury which read:

Please continue your deliberations.

Judge Joiner

Giacalone claims that this ex parte conduct on the part

of the district judge violated the requirement of Rule 43,

Fed. R. Crim. P., that “[t]he defendant shall be

Al3

present ... at every stage of the trial’ and that it was

in violation of Shields v. United States, 273 U.S. 583

(1927), and more recently, of Rogers v. United States, 422

U.S. 35 (1975). See also United States v. United States

Gypsum Co., — U.S. —, 46 U.S.L.W. 4937, 4947-48

(U.S., June 29, 1978). Unlike the facts in those cases,

however, the jury did not solicit and the court did not

give any ex parte instructions about the merits of the

case or the manner of the jury’s deliberations. Although

it may have been technically in error for the trial judge

to have made even this limited response to the jury, the

error was not under the circumstances prejudicial. As

we held in United States v. Reynolds, 489 F.2d 4 (6th Cir.

1973), cert. denied, 416 U.S. 988 (1974), the rule

requiring that a defendant be present at all stages of the

trial must be considered with Rule 52(a), Fed. R. Crim.

P., providing that harmless error is to be disregarded,

citing United States v. Gradsky, 434 F.2d 880 (5th Cir.

1970), cert. denied, 401 U.S. 925 (1971), 409 U.S. 894

(1972); and Yates v. United States, 418 F.2d 1228 (6th Cir.

1969). Thus we held that a forbidden communication

will not always be reversible and that the standard is

whether there is “any reasonable possibility of

prejudice.” 489 F.2d at 8, quoting Wade v. United States,

441 F.2d 1046, 1050 (D.C. Cir. 1971). We cannot agree

with appellant that the note to the jury was “tersely

worded” or “coercive” and indeed, appellant concedes

that taken alone, any error would not be reversible. He

urges us, however, to consider it in the context of other

events which later occurred in the course of the jury’s

deliberations.

Potentially more serious than the court’s ex parte

communication is Giacalone’s assertion that the trial

court exceeded its permissible bounds when it

delivered supplemental instructions in response to the

Al4

jury’s request for further assistance on the definition of

the term “knowingly.” The request for instructions

came after the court, on its own initiative, had inquired

of the jury whether there were any questions which it

might have about law, a questionable procedure, in our

judgment, since the jury had not up to that point

indicated that it had such questions. Upon receipt of

the inquiry, the trial judge drafted instructions which

he made available to counsel for comment and to which

Giacalone objected.’

THE COURT: You have asked for a further definition of

the word, knowingly, as used in the instruction. I am

giving you this instruction to try to be of assistance to you

pursuant to your request.

The law of this case requires that before you can find the

Defendant guilty of the crime charged, you must find,

beyond a reasonable doubt, that the Defendant, knowingly,

received, or possessed a firearm.

Knowingly, as used in this instance, is required to be

shown to insure that no one will be convicted because of

mistake, or accident, or other innocent reason. It is a

requirement that the Defendant had knowledge of his

receiving, or possessing the firearm. This does not include

intent to violate the law, that is not required, nor does it

require knowledge that there was such a law, or knowledge

that the firearm traveled in interstate commece. The

knowledge that is required is that of receiving or

possessing the firearm.

How do you determine whether or not such knowledge

exists?

Proof of Defendant's knowledge of possession of a

firearm, which you must remember must be proved beyond

a reasonable doubt, does not require direct testimony that

the Defendant held it in his hand, or used it, to show

knowledge of possession. Knowledge of possession can be

proved in other ways, and from circumstantial evidence.

(Cont'd. on next page.)

Al5

Appellant’s counsel objects not so much to the

instructions given as to the fact that they appeared to

exceed the scope of the request made by the jury, and

that they deviated from the definition of “knowingly”

as earlier given by the trial judge, thus depriving the

defense counsel of an opportunity to argue the new

language in his closing remarks to the jury.

Particularly useful is the following language of the

Fifth Circuit in United States v. Carter, 491 F.2d 625, 633

(5th Cir. 1974):

When after an hour and 40 minutes of

deliberation a jury returns, not with a verdict,

but with a request for clarification of a particular

point of law, it must be recognized that the jury

has been unable to reach a decision on the basis

(Fn. 7 — Cont'd.)

You look at all the evidence, direct and circumstantial.

You determine whether there is evidence that directly bears

on this question, and you determine whether there is

evidence of other circumstances that, indirectly, bears on

this question. In doing all of this, you are to consider only

the evidence in the case, but, in your consideration of the

evidence, you are not limited by the bold [sic] statements of

the witnesses. You are not limited to what you have seen,

or heard, in the courtroom. You are permitted to draw from

the facts produced, such reasonable inferences as you feel

are justified in light of experience.

Knowledge ordinarily may not be proved, directly,

because there is no way of fathoming or scrutinizing the

human mind. But, you may infer the Defendant's

knowledge from the surrounding circumstances. You may

consider all facts and circumstances in evidence which bear

on the issue of knowledge.

Unless you find knowledge of possession as outlined

herein, beyond a reasonable doubt, you should acquit the

Defendant. If you find that knowledge has been so proved,

you should consider the other instructions of the case.

Al6

of all it has heard up until that time. Under

those circumstances a trial judge must be acutely

sensitive to the probability that the jurors will

listen to his additional instructions with

particular interest and will rely more heavily on

such instructions than on any single portion of

the original charge. Thus, the court must

exercise special care to see that inaccuracy or

imbalance in supplemental instructions do not

poison an otherwise healthy trial.

Subjecting the judge’s instructions to close scrutiny

because of the highly sensitive nature of his role at that

stage of the trial, we conclude that the trial judge's

comments met the high standard of balance and

fairness necessary to assure defendant a fair trial.

Defendant’s counsel objected to giving any instruction

at all. He did not indicate any specific dissatisfaction

with the language employed nor request that the court

add to or amend the instruction proposed and given,

although he now claims that the instructions should

have reflected certain cautions to the jury on the use of

circumstantial evideiice.

We cannot agree with appellant’s assertion that the

supplemental instructions given violated Rule 30, Fed.

R. Crim. P.,* because they went beyond the instructions

originally submitted to the jury. Giacalone argues that

® Rule 30 provides in part:

The court shall inform counsel of its proposed action upon

the requests [for instructions] prior to their arguments to

the jury, but the court shall instruct the jury after the

arguments are completed.

Al7

Rule 30 permits counsel to effectively plan closing

presentations to the jury, United States v. Bass, 425 F.2d

161, 163 (7th Cir. 1970), and therefore effectively

precludes a court from giving any instruction which has

not already been given in its original charge and the

substance of which has not been known to defense

counsel prior to closing arguments.

Our court has recognized the duty of the trial court to

clear up uncertainties which the jury brings to the

court’s attention. United States v. Rowan, 518 F.2d 685,

693 (6th Cir.), cert. denied, 423 U.S. 949 (1975). We do

not believe that Rule 30 precludes any supplemental

instructions except those which simply recite what was

previously given; were that so, the instructions would

be merely repetitive and not supplemental. We prefer a

rule which measures the propriety of a supplemental

instruction not by whether it is a verbatim repetition

but instead by whether it fairly responds to the jury’s

inquiry without creating a prejudice which Rule 30 was

designed to avoid. In other words, the decision is

committed to the sound discretion of the trial judge and

our review is limited to determining whether that

discretion was abused, taking into account the sensitive

nature of the judge’s responsibility at this stage of the

trial and the duty of the trial judge to provide impartial

and effective guidance on the law for the jury to follow

in its deliberations. Under such circumstances we do

not believe that the trial court’s discretion was abused.

Finally, appellant complains of the fact that the

supplemental instructions given by the court were

followed closely by a so-called Allen charge. See Allen v.

United States, 164 U.S. 492 (1896). While it is true

Al18

that we have held that “[a]ny variation upon the precise

language approved in Allen imperils the validity of the

trial,” United States v. Scott, 547 F.2d 334, 337 (6th Cir.

1977),9 we observe that.the trial judge’s statement

roughly follows the instruction contained in 1 E. Devitt

& C. Blackmar, Federal Jury Practice and Instructions,

§ 18.14 (3d ed. 1977), an instruction implicitly approved

by the Supreme Court in Kawakita v. United States, 343

U.S. 717 (1952).!° We further note that while defense

counsel generally resisted the delivery of an Allen

charge, no specific objection was made to the language

employed except in one particular and that in this

regard the trial court, in the charge actually given,

acceded to the language proposed by defense counsel. !!

For the first time on appeal, however, defense

counsel complains that the charge given unduly

® In fact, the Allen opinion did not quote the instructions which

it was approving, although it noted that the instructions had been

taken literally from Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1

(1851). See 164 U.S. at 501-02; Pugliano v. United States, 348 F. 2d

902, 903-04 (1st Cir.), cert. denied, 382 U.S. 939 (1965).

‘0 Although the opinion in Kawakita did not expressly address

the propriety of the Allen charge delivered by the trial court, it noted

that “[o]ther alleged errors ... are either insubstantial or so

adequately disposed of by the Court of Appeals that we give them

no notice... .”’ 343 U.S. at 744. One such claim of error discussed

at length by the. Ninth Circuit involved the Allen charge. See 190

F, 2d at 521-28.

‘! The trial court acquiesced in defense counsel's suggestion to

tell the jury that “[i]t is important that [this lawsuit] be disposed of’

rather than “decided.” See United States v. Harris, 391 F. 2d 348,

356-57 (6th Cir.), cert. denied, 393 U.S. 874 (1968) (disapproving the

- “decided” and noting a preference for the phrase “disposed

of’’).

Al9

emphasized any expense involved to the parties in

trying the lawsuit.'? It is true that in United States v.

Harris, 391 F.2d 348, 354 (6th Cir.), cert. denied, 393 U.S.

874 (1968), our court found “questionable” the undue

emphasis which the trial court placed upon the expense

and burden of conducting a trial. At the same time,

while Harris noted disapproval of the language, it did

not determine whether such language constituted

reversible error and we hold it is not so here, at least in

the absence of any specific objection thereto at the time.

Under the circumstances we do not believe that the

Allen charge as given unduly emphasized expense of

the trial, nor was it coercive.

Giacalone also objects to that portion of the charge in

which the trial judge indicated that the parties ‘“have

presented their case as well as they can” and that “[iJt

does not appear that another trial could be more

exhaustively, or more completely tried as has been this

trial.”""3 Again, the language objected to was substantially

that which is approved of in Devitt & Blackmar and

derived from Kawakita, supra. This objection was not

made to the district court and we decline to address the

claim for the first time on appeal. It certainly was not a

12. Thus, the trial court instructed:

A trial of a lawsuit is an expensive process and is

burdensome upon the litigants. All parties have been here,

and have prepared for trial, and have spent time before

you, and have presented their case as well as they can.

Like all cases, the problem must be disposed of at some

time. So far as I can tell, there seems to be no reason why

another trial would not be e jually as expensive or

burdensome as the trial you have been through. It does not

appear that another trial could be more exhaustively, or

more completely tried as has been this trial.

13 See note 12 supra.

A20

matter of plain error, if error at all. No unique

circumstances in the trial which might have made the

instruction error here are pointed out, and we find

none. The trial appears to have been well conducted by

both sides, even though each might now claim it could

make a more effective presentation on retrial.

Finally, Giacalone invites us to hold that the charges

delivered by the court were coercive because of the

relatively short period of time which elapsed between

the time the jury received the supplementary

instruction and the time it returned the verdict, relying

upon United States v. Petersen, 513 F.2d 1133, 1136 (9th

Cir. 1975). In Harris, supra, our court suggested that the

brief interval between the giving of the Allen charge

and the return of a verdict may demonstrate the

coercive effect of the charge. 391 F.2d at 356. The ABA

Standards Relating to Trial by Jury (Approved Draft

1968), while generally critical of Allen charges, dispute

the logic of the view that an Allen charge may or may

not be considered coercive depending upon the speed

with which a verdict is reached. “[I]t is difficult to

accept a rule which in effect tells a judge that his

instruction may be reversible error depending upon

what happens after he has given it.” ABA Standards,

supra, Commentary to § 5.4(b) at 154. The speed with

which a jury may reach a verdict following the giving of

the charge cannot be considered in determining

whether the given charge was improper as coercive

when given, although it might tend to indicate whether

an instruction deemed improper was or was not

harmless. We find no reversible error in the instructions

complained of. ,

Within each of the three foregoing general areas of

complaint, appellant has interposed other assertions of

error and arguments concerning them, all of which we

have reviewed but found to be without merit.

Affirmed.

A21

APPENDIX B

ORDER

(United States Court of Appeals

For the Sixth Circuit)

(Filed January 22, 1979)

(United States of America, Plaintiff-Appellee v. Vito

Giacalone, Defendant-Appellant)

Before: CELEBREEZE and ENGEL, Circuit Judges and

PHILLIPS, Senior Circuit Judge.

No judge in regular active service of the court having

requested a vote on the suggestion for a rehearing en

banc, the petition for rehearing filed herein by the

defendant-appellant has been referred to the panel

which heard the original appeal. Upon consideration of

said petition, the court concludes that it is without

merit. Accordingly,

The petition for rehearing is hereby denied.

ENTERED BY ORDER OF THE COURT

ls! John P. Hehman

Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.