Opposition — Giacalone v. United States

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No. 78-1296 APR 26 1979

PORN [cium accuse, CLERK

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In the Supreme Court of the United States

OCTOBER TERM, 1978

ViTO GIACALONE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCree, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

WILLIAM G. Oris

KAREN A. REBROVICH

Attorneys

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-1296

Vito GIACALONE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A20)

is reported at 588 F. 2d 1158.

JURISDICTION

The judgment of the court of appeals was entered

on December 18, 1978. A petition for rehearing was

denied on January 22, 1979 (Pet. App. A2I). The

petition for a writ of certiorari was filed on February

21, 1979. The jurisdiction of this Court is invoked

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

QUESTIONS PRESENTED

1. Whether temporary detention of petitioner's

automobile pending issuance of a search warrant was

lawful.

(1)

2. Whether the magistrate erroneously refused to

hear argument by defense counsel in opposition to the

issuance of the search warrant.

3. Whether the trial court improperly intertered with

the jury’s deliberations.

4. Whether the trial court's refusal to excuse three

jurors for cause deprived petitioner of a fair trial.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Michigan, petitioner

was convicted of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. App.

1202(a)(1). Petitioner was sentenced to two years’

imprisonment and a fine of $5,000. The court of

- appeals affirmed (Pet. App. Al-A20).

Petitioner was arrested at 4:41 p.m. on March 29,

1977, on a _ federal. warrant charging him with

operation of an illegal numbers business. At the time

of his arrest, petitioner was about to enter his

automobile, which was parked in the lot of the

Southfield Athletic Club. The FBI agents who made

the arrest seized petitioner's automobile and moved it

to an FBI garage. The agents did not conduct a search

of the car at that time.

A few minutes after petitioner's arrest, an FBI agent

recognized petitioner's chauffeur inside the Club and

overheard him say that if the police searched the car,

“they [might] find the goddamn thing in there” (Pet.

App. A2). A_ confidential informant (FBI-2) also

overheard the driver tell petitioner, “[w]e’ve got to get

that gun out of there right now” (ibid.). About two

months earlier, another confidential informant (FBI-1)

had informed the FBI that he had _ overheard

petitioner state that he had recently installed a secret

compartment in his automobile (id. at A2-A3). The

foregoing information was incorporated in an affidavit

in support of an application for a warrant to search

the car, and the warrant was issued.!

The car was then searched pursuant to the warrant and

a secret compartment was discovered in the dashboard.

This compartment contained a loaded Smith and Wesson

revolver (Pet. App. Al-A3). Evidence at trial showed

that the gun had travelled in interstate commerce. The

parties stipulated that petitioner had previously been

convicted of a felony.

ARGUMENT

1. Petitioner contends (Pet. 11-20) that his

automobile was unlawfully detained pending issuance

of the search warrant. The court of appeals correctly

rejected this claim in a decision on which we

essentially rely (Pet. App. Al-A6).

The court of appeals noted (Pet. App. A2-A3, A4,

n.4) that, before petitioner was arrested and his car

was seized, he had told a federal informant (FBI-1)

that he had installed a secret compartment in his car

and that there was a gun in his car. Thus, at the time

petitioner was arrested and “the automobile was first

detained * * * the government had probabie cause to

believe [the car] contained the hidden firearm.”? (Pet.

'The affidavit also recited previous occasions on which FBI-I

and FBI-2 had provided accurate information to law enforcement

officials.

2Petitioner agrees that this evidence,would constitute probable

cause, but he suggests that it was “stale” (Pet. 19) because it

was based on a conversation overheard two months prior to his

arrest and the seizure of the car. Whether evidence that has been

previously acquired remains sufficiently probative to establish

probable cause depends, of course, on the particular facts of the

case. E.g., United States v. Steeves, 525 F. 2d 33, 38 (Sth Cir.

1975); United States v. Rahn, 511 F. 2d 290, 293 (10th Cir.), cert.

denied, 423 U.S. 825 (1975) (probable cause to believe that a

App. A4). Since the agents had probable cause to

believe the car contained evidence of a crime, and

since the car and the evidence might well have been

removed if the agents delayed taking action,’ the

agents were entitled either to

seiz[e] and hol{d] [the] car before presenting the

probable cause issue to a magistrate [or] * * *

carr[y] out an immediate search without a warrant.

Chambers vy. Maroney, 399 U.S. 42, 52 (1970). See

also South Dakota v. Opperman, 428 U.S. 364, 367

(1976); Texas v. White, 423 U.S. 67 (1975); Cooper v.

California, 386 U.S. 58 (1967).

2. Petitioner claims (Pet. 20-24) that the magistrate

erred in refusing to hear defense counsel’s argument in

opposition to the issuance of the search warrant.

* Petitioner acknowledges (id. at 23), however, that there

are no decisions requiring the magistrate to allow

argument on behalf of private parties in warrant

proceedings under Rule 41 of the Federal Rules of

Criminal Procedure. There is thus no conflict among

the circuits requiring further review in this case.

In any event, nothing in Rule 41 requires a_pre-

warrant adversary hearing. To the contrary, the Rule

expressly contemplates that warrant applications will be

firearm acquired two years previously would be found in the de-

fendant’s home). In this case, petitioner had been overheard to

say that he had concealed a gun in his car. Presumably the

purpose of concealing a gun in this manner is to assure its ready

availability in the car for future use. It was thus reasonable to

assume that the gun would probably be found in the car at the

time of petitioner's arrest. There is, in any event, no need for the

Court to review the factual application of the probable cause

Standard in this case.

‘Petitioner's chauffeur was present at the time of his arrest and

could have (and apparently would have) removed the car and

concealed the handgun if the car had not been seized at that

time. See Pet. App. A2.

decided in an ex parte hearing before the magistrate.

Petitioner, of course, acknowledges (Pet. 24) that this

is the accustomed practice under the Rule. Moreover,

Rule 41(e) allows the defendant to challenge the

warrant after its execution; there is thus no basis for

any assertion that petitioner’s substantial rights were

affected by the application of ordinary procedures in

this case. Assuming that the magistrate had discretion

to allow adversary argument-in the warrant proceeding

under Rule 41, there are no extraordinary facts in this

case suggesting that such discretion was abused by

deferring the adversary presentation until after execu-

tion of the warrant pursuant to Rule 41(e).4 Moreover,

even if the magistrate abused his discretion in this

regard, application of the severe sanction of the

exclusionary rule, where there was neither constitutional

nor statutory violation, would be inappropriate.

3. Petitioner contends (Pet. 25-38) that the trial

court improperly interfered with the jury's delib-

erations. After two and one-half days of delibera-

tion, the jury announced that it could not reach a

verdict and asked the court for “guidance in the

subsequent procedure.” The court responded with a

note to the jury stating, “Please continue your

deliberations.” Three hours later, the jury had still not

reached a verdict, and the judge inquired whether the

jury needed any further instructions on the law. The

4In United States v. Jacobs, 513 F. 2d 564 (9th Cir. 1974), and

Perial Amusement Corp. v. Morse, 482 F. 2d 515 (2d Cir. 1973),

the courts upheld warrants to seize obscene films that had been

issued after an adversary proceeding before the magistrate. The

magistrate’s discretion to conduct an adversary hearing in these

cases was based on the need to avoid an ex parte prior restraint

of speech. Petitioner's concealed handgun was not, of course,

protected by the First Amendment. Nor were there any other

special circumstances here requiring a pre-seizure adversary

hearing before the magistrate.

jury requested the court to give more detailed

instructions on the definition of “knowingly.” The

judge, after consulting with counsel, gave a supplemen-

tal instruction on this term (Pet. App. Al4-Al5, n.7).

The court also gave the jury an Allen charge (CA

App. 260-263). One hour later, the jury returned its

verdict. The court then polled the jury. Each juror

stated that he had not surrendered his opinion solely

because of the opinions of his fellow jurors or for the

purpose of returning a verdict (id. at 266-269).

a. Petitioner claims (Pet. 29-30) that providing the

jury with supplemental instructions impermissibly

denied him the opportunity to present effective

argument to the jury because his counsel was not

aware of the supplemental instructions at the time of

_ his summation. It has long been recognized that the

trial court has discretion to provide supplemental jury

instructions to assist the jury by clarifying points of

law. E.g., United States v. Rowan, 518 F. 2d 685, 693

(6th Cir.), cert. denied, 423 U.S. 949 (1975); United

States v. Bolden, 514 F. 2d 1301 (D.C. Cir. 1975):

Price v. Glosson Motor Lines, 509 F. 2d 1033 (4th

Cir. 1975); United States v. Burkhart, 501 F. 2d 993,

997 (6th Cir. 1974). There is nothing to sucgest that

this broad discretion was abused in this case.

Moreover, counsel was not denied an opportunity to

present argument to the jury on the basis of the

supplemental instructions. The court offered counsel

the opportunity to make a supplemental argument on

the basis of the additional instructions; however,

counsel declined this opportunity (CA App. 245).

b. Petitioner also contends (Pet. 35-36) that the

Allen charge was improperly coercive. This Court has

consistently denied review of similar claims (see, e.g.

Lacey v. United States, cert. denied, No. 77-1751

(October 2, 1978); United States v. Carter, cert. denied,

436 U.S. 956 (1978); Dyba v. United States, cert.

denied, 434 U.S. 830 (1977); Perez-Vega v. United

States, cert. denied, 424 U.S. 970 (1976)), however,

and there is no reason for a different result here. As

the court of appeals stated (Pet. App. Al8), the trial

judge’s statement approximated the instruction con-

tained in | E. Devitt & C. Blackmar, Federal Jury

Practice and Instructions §18.14 (3d ed. 1977), which

was implicitly approved by this Court in Aawakita v.

United States, 343 U.S. 717 (1952).

Petitioner notes (Pet. 36) that a portion of this

instruction informed the jury of the expense involved

in trying a lawsuit and specifically that retrial of the

instant case would be expensive. However, unlike the

numerous references to the expense of trial in United

States v. Harris, 391 F. 2d 348 (6th Cir.), cert. de-

nied, 393 U.S. 874 (1968)—on which petitioner relies

(Pet. 36))—the court in this case did not place such

emphasis on this instruction that it could have coerced

the jury to reach a verdict. Considering the totality of

the jury’s deliberations and the court’s instructions

(United States v. Park, 424 U.S. 658 (1975)), there is

no basis for a conclusion that the single A/len charge

in this case coerced the will of any juror to reach a

verdict.®

‘Petitioner misstates the facts in Harris by suggesting that the

expense of trial was mentioned only once by the trial judge in that

case (Pet. 36). The expense of the proceeding was referred to

several times during the course of supplemental instructions in

Harris. See 391 F. 2d 351-353.

‘Unlike United States v. Coast of Maine Lobster Co., 557 F.

2d 905 (Ist Cir.), cert. denied, 434 U.S. 862 (1977), where the trial

judge asked the jury on three occasions whether it could arrive at

a verdict within an hour, the judge in this case never stated or

implied that a verdict must be reached, much less that it be

reached within a specified time.

4. Finally, petitioner contends (Pet. 39-46) that he

was denied a fair trial by the court's refusal to exclude

for cause three prospective jurors at voir dire. None of

these individuals in fact served on the jury because

petitioner exercised peremptory challenges to exclude

them. Petitioner’s theory appears to be that he was

prejudiced because this reduced the number of

peremptory challenges he had available to apply

against other prospective jurors (Pet. App. A6-A7).

The trial court properly refused to exclude the three

jurors for cause. During voir dire, the first prospective

juror—Glantz—stated that he remembered hearing the

name Giacalone in a criminal context 10 to 12 years

earlier and further stated that he would listen to the

evidence at trial and that he prided himself on being

fair (CA App. 184-187). The second—Noffert—stated

‘that he had formerly been employed by a finance

company that had transacted business with petitioner,

that there was no problem with petitioner's loan

account, and that he could be a fair and impartial

juror (id. at 190-191). The third—Gray—staied that she

would base her decision in the case on the facts at

trial and that her “feeling” that petitioner was

associated with criminal activity would not affect her

judgment as a juror (CA App. 41). All three of the pro-

spective jurors stated that they had no knowledge of

the incident that was the subject of the instant case.

The record at voir dire reflects that these individuals

lacked any hostility or preconceptions toward petitioner

that could not be laid aside in reaching a fair verdict.

Murphy v. Florida, 421 U.S. 794, 800 (1975). It was

therefore not an abuse of .the court's discretion to

refuse to exclude the jurors for cause. United States v.

Gay, 522 F. 2d 429, 432 (6th Cir. 1975); United States

ex rel Stickler v. Tehan, 365 F. 2d 199 (6th Cir. 1966),

cert. denied, 386 U.S. 992 (1967). As the court of

appeals stated in this case (Pet. App. A&, All):

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.

* * * * *

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.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WapbDeE H. McCreEE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

WILLIAM G. OTIS

KAREN A. REBROVICH

Attorneys

APRIL 1979

DOJ-1979-04