Opposition — Shear v. United States

Upreme Court, U.Q

EILED |

Nos. 78-1348 and 78-1388 MAY 9 1970

MICHAEL “a IR., CLERK

In the Supreme Court of the Unit

OCTOBER TERM, 1978

CAROLE SHEAR, PETITIONER

Vv.

UNITED STATES OF AMERICA

THOMAS LaMorTE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WapvDE H. McCree, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN VOORHEES

Attorney

U.S. Department of Justice

Washington, D.C. 20530

INDEX

Page

I ica alia art a atta sien saedhauad edeueueiesssnideces |

I hero cant ts bi nccnlnanccbesapegsiaenioanueinahion I

IIE IIIS ics ccsssindhnscsdeeanidadeseehovaumanobanemnschens 2

SII Y ssirnuicidhicvabslia sconncnuckachsinsdekbecsdepneenitoseniecescecueciine 2

I acter aiala tina dali ead snese a nea naicen so eccealiianin 6

EER a eR RAE EE OR BOLT HO ae NTE 10

IE ha Gel cecdits ein ahinin ceeen bac ick ict skiedeminaeasdbataweine la

CITATIONS

Cases:

Berenyi v. Immigration Director, 385

CEES, NP” nak dibeultshe igahtien tin chehsatssavesvacenecsstiesecss 6

Brewer v. Williams, 430 U.S. 387) ........ccccccceee 7

Michigan v. Mosley, 423 U.S. 96... 6, 7

Miranda v. Arizona, 384 U.S. 436... 4

North Carolina v. Butler, No. 78-354

PU Sn? PU Rind sch cade nucnsinababedensevassuens 8

Rhode Island v. Innis, cert. granted,

POO FEO CEO, BO, TBTBD wiceccnccsccscccccccecsee 7

United States v. Armedo-Sarmiento, 545

F. 2d 785, cert. denied, 430 U.S. 917 ........ 8

Constitution and statutes:

United States Constitution, Sixth

IE Sistah cansleaicnescabasiacaneundasvecevuvesiete 7

rie I I ia ll 2

sg Tae ISIE REY ie va Oe 2

BA GI III ha inden dh curs dicectinhseeuaeannanbuabieainion 2

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1348

CAROLE SHEAR, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 78-1388

THOMAS LaMoOrRTE, PETITIONER

vs

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The oral opinion of the court of appeals is

unreported (Appendix, infra, la-4a).

JURISDICTION

The judgment of the court of appeals was entered

on February 8, 1979 (LaMorte Pet. App. 4a). The

petition for a writ of certiorari in No. 78-1348 was

filed on March 2, 1979. The petition for a writ of

certiorari in No. 78-1388 was filed on March 12, 1979

(1)

and is therefore out of time under Rule 22(2) of the

Rules of this Court. The jurisdiction of this Court is

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

QUESTIONS PRESENTED

1. Whether, in the circumstances of this case,

petitioners voluntarily waived their right to remain

silent after being advised of their Miranda rights.

2. Whether the district court abused its discretion in

denying a mistrial motion based on an_ alleged

difference in the testimony of a government witness at

trial as compared to his testimony at the suppression

hearing.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of New York, each

petitioner was convicted on one count of possessing

cocaine with intent to distribute, in violation of 21

U.S.C. 841(a)(1), one count of importing cocaine, in

violation of 21 U.S.C. 952(a), and one count of

conspiracy to commit the foregoing offenses in violation

of 21 U.S.C. 846. Petitioner LaMorte was sentenced to

concurrent terms of seven years’ imprisonment on each

count, to be followed by a special parole term of 15

years, and a total fine of $22,500. Petitioner Shear

received a suspended sentence of seven years’ imprison-

ment on each count and was placed on five years’

probation. The court of appeals affirmed (Appendix,

infra).

At approximately 7:50 p.m. on February 2, 1978,

petitioners arrived at Kennedy Airport on an inter-

national flight originating in Beirut, Lebanon. After

claiming five pieces of luggage at the baggage counter,

they proceeded to the United States Customs

checkpoint. LaMorte told the Customs inspector that

one large and one small bag were his, and that the

other large suitcase and two smaller bags belonged to

his traveling companion, Shear. The inspector noticed

that the two large suitcases looked as if they had been

purchased abroad, but were not listed on the customs

declaration form. He asked LaMorte if their declara-

tion was complete, and LaMorte responded affirmative-

ly. The inspector then specifically inquired about the

two suitcases whereupon LaMorte stated that the

suitcases were old rather than new (I S.H. Tr. 37, 40-

42).!

At that point, the inspector began examining Shear’s

large blue suitcase. When he asked LaMorte if it was

his, LaMorte replied that it was not and added “But

you must understand these are not our cases.”

LaMorte explained that Air France had lost their

luggage overseas and that the suitcases belonged to Air

France. When Shear stated that Air France had sent

them to a store in Beirut to purchase the luggage,

LaMorte told her “Don’t say anything.” As_ the

inspector probed inside LaMorte’s black suitcase, he

sensed the suitcase bottom to be “abnormally heavy

* * * and also a bit thick.” Accordingly, the inspector

removed the contents of the suitcase, cut into the inner

lining, and discovered that cardboard had been taped to

the inside of the bag. After summoning his supervisor,

the inspector punctured the cardboard with a knife and

found a white powder secreted underneath. A field test

of the powder indicated that it was cocaine (I. S.H.

Tr. 43, 46-48, 73, 89-90).2

'“S.H. Tr.” refers to the transcripts of the suppression hearing

held on May 30-31, 1978.

2In the interim LaMorte also told the customs supervisor that

Air France had lost their luggage and had given them these

suitcases. When the supervisor challenged this story, stating that

airlines usually make cash settlements for lost luggage, LaMorte

backtracked, now asserting that indeed Air France had given

petitioners money and that they had then purchased the suitcases

at a store (2 S.H. Tr. 40).

Following identification of the powder as cocaine,

the Customs officials directed petitioners into their

office, conducted a similar probe of Shear’s suitcase,

and again discovered cocaine secreted underneath a

false bottom in that suitcase. Thereupon the inspec-

tor arrested both petitioners, separately read each

petitioner his rights in accordance with Miranda v.

Arizona, 384 U.S. 436 (1966), and ascertained that

both petitioners understood their rights. When both

petitioners then stated that they did not wish to waive

their rights (1 S.H. Tr. 49-50, | Tr. 44-45), the Customs

officials did not ask petitioners any further questions.

At no time did petitioners request counsel (1 S.H. Tr.

48-50; | Tr. 44-45).

Within an hour, DEA agents Joseph Giaimo and

James Castillo arrived at the Customs office to take

over the investigation. Although the agents were told

by the Customs officials that petitioners had been

arrested, the agents were apparently unaware of

petitioners’ initial decision to remain silent. After

testing the cocaine, the DEA agents informed LaMorte

and Shear individually that they were under arrest and

again advised them of their Miranda rights. At this

time, LaMorte expressly stated that he understood his

rights, that he would like to answer questions, and

that he did not want to consult with an attorney.

When Giaimo asked about the cocaine in the suitcases,

LaMorte said that he did not know how it got there

and denied that he was going to deliver the suitcases

to anyone. Similarly, Shear acknowledged that she

understood her rights and said that she would respond

to the agents’ questions without a lawyer. She too

denied knowledge of the cocaine that was found in her

suitcase (1 S.H. Tr. 100-105, 114, 199-202; Tr. 122-

124).

Shortly thereafter, the agents took petitioners to the

DEA office in another part of the airport to process

petitioners. At approximately 11:30 p.m., the DEA

agents readvised LaMorte of his Miranda rights and

asked him if he wished to continue talking with the

agents. LaMorte responded that he sul understood his

rights and that he would like to answer questions.

LaMorte then stated that on January 23, 1978, he had

been offered $50,000 by a man named “Jerry” to

smuggle the cocaine from Lebanon into New York.

LaMorte said that he had been instructed to deliver

the suitcases containing the cocaine to a man named

Hussein Jaifar, who would be registered at the Plaza

Hotel in New York City, and that Jaifar would pay

him for his services. Finally, LaMorte told the agents

that petitioner Shear thought she was smuggling

hashish rather than cocaine. Thereafter the agents also

readvised Shear of her Miranda rights, which she said

she understood but which she did not choose to

invoke. When asked if she knew about the cocaine in

the suitcase, Shear, after consulting with LaMorte,

answered that LaMorte had told her they would be

smuggling only hashish into the country (1 S.H. Tr.

106-110, 205-209, 229-234).

Before trial petitioners moved to suppress both the

statements made to the Customs officials prior to

petitioners’ arrest and the statements made subsequent-

ly to the DEA agents at the DEA office. Following a

hearing at which petitioners did not testify, the court

held that’ the statements made by petitioners prior to

their arrest constituted routine Customs discussions and

were thus not the product of custodial interrogation.

The court further found that petitioners’ post-arrest

statements were admissible at trial because petitioners

had been fully informed of their Miranda rights and

had nonetheless voluntarily and knowingly chosen to

talk (3 S.H. Tr. 3A-4A).

ARGUMENT

1. Petitioners contend (Shear Pet. 14-21; LaMorte

Pet. 10-18) that they did not voluntarily, knowingly

and intelligently waive their Miranda rights, and that

their post-arrest statements to the DEA agents were

therefore inadmissible at trial.) In particular, petitioners

rely on the facts that they initially chose to remain

silent, that they did not sign a written waiver of rights

form, and that the agents mentioned that importation

of cocaine is punishable by up to 15 years’ imprison-

ment to show that they were coerced into making

inculpatory statements. However, these essentially

factual claims concerning the specific circumstances of

their custodial interrogation were rejected by both

courts below, and further review by this Court is

unwarranted. See Berenyi v. Immigration Director, 385

U.S. 630, 635 (1967). Moreover, careful analysis of

petitioners’ claims demonstrates that their voluntary

Statements were properly admitted into evidence at

trial. :

a. Petitioners claim that because they initially

chose to remain silent at the time of their arrest by

the Customs officials, they could not thereafter have

voluntarily waived their Miranda rights. But in

Michigan v. Mosley, 423 U.S. 96 (1975), this Court

squarely rejected the contention that a defendant's

initial decision to remain silent precludes his subse-

quent voluntary waiver of his Miranda rights. Rather,

the Court concluded that “the admissibility of

Statements obtained after the person in custody has

decided to remain silent depends under Miranda on

whether [in the circumstances of the particular case

3Petitioners have apparently abandoned their challenge to the

admission of their statements made to the Customs inspectors

prior to their arrest.

the defendant's] ‘right to cut off questioning’ was

‘scrupulously honored.’” /d. at 104. Here, as the

courts below concluded, petitioners’ right to remain

silent was scrupulously honored.

Following their arrest, petitioners received the

appropriate warnings from the Customs officials. They

both stated that they understood those rights and that

they did not wish to talk. This request was

“scrupulously honored.”* Approximately one hour later,

DEA agents arrived at the Customs office where

petitioners were being held. The agents gave petitioners

a fresh set of Miranda warnings, ascertained that

petitioners understood those rights, and asked them if

they desired to answer questions.’ Both petitioners

stated that they understood their rights, that they did

not want a lawyer, and that they would now answer

questions. Shortly thereafter, the agents took

petitioners to the DEA office, whereupon petitioners

were again given their rights and again voluntarily

chose to make statements. In sum, “[t}his is not a case

* * * where the police failed to honor a decision of a

person in custody to cut off questioning, either by

refusing to discontinue the interrogation upon request

or by persisting in repeated efforts to wear down his

resistance and make him change his mind.” 423 U.S.

at 105-106.

‘Petitioners did not ask for or consult with counsel at any

time (3 S.H. Tr. 4-A). This case accordingly does not implicate the

special concerns addressed in Mr. Justice White's concurring

opinion in Mosley (423 U.S. at 110 n.2) or arguably presented in

Rhode Island v. Innis, cert. granted, No. 78-1076 (Feb. 26,

1979) that arise in cases in which the suspect has requested to

consult with counsel before questioning. Moreover, since the Sixth

Amendment right to counsel had not attached at the time of

petitioners’ post-arrest statements, this case is clearly dis-

tinguishable from Brewer v. Williams, 430 U.S. 387 (1977).

SThese agents were apparently unaware of petitioners’ prior

refusal to answer questions (1 S.H. Tr. 200-205).

b. Petitioners also suggest that their failure to sign

a written waiver of their rights constitutes strong

evidence that their statements were coerced. At the

outset, we note that neither the Customs officials nor

the DEA agents ever asked petitioners to sign a waiver

form (1 S.H. Tr. 206-207). Thus, there is no factual

basis for the inference that petitioners seek to have the

Court make. Moreover, as the Court recently noted in

North Carolina v. Butler, No. 78-354 (Apr. 24, 1979),

slip op. 4, 6 n.5, an express written waiver of the right

to remain silent is not an essential prerequisite to the

waiver of Miranda rights.

c. Finally, petitioners contend that the authorities

coerced them into talking by threatening them with

prison and by taking advantage of the many hours

of custody and petitioners’ emotional states. However,

these factual claims were correctly rejected by the

courts below. Petitioners first agreed to answer

questions within an hour of their arrest, and all of

their statements were made within three hours of their

arrival at the airport. Furthermore, the district court

specifically found that there was “[n]o evidence of

coercion or trickery” and that petitioners “knew

and understood the warnings,” were “in control of

their mental and physical faculties,’ and were not

“distraught or unable to know what they were doing”

(3 S.H. Tr. 3A-4A).°

‘The DEA agent’s accurate statement to petitioner LaMorte

that he could get up to I5 years’ imprisonment if he was

convicted was not coercive, since the agent did not tell LaMorte

that he automatically would get such a sentence if he did not

cooperate and talk (1 S.H. Tr. 113-114, 134-135). See United

. States v. Armedo-Sarmiento, 545 F. 2d 785, 792 (2d Cir. 1976),

cert. denied, 430 U.S. 917 (1977).

2. There is also no merit to petitioner LaMorte’s

contention (Pet. 19-21) that the trial judge should have

declared a mistrial in light of the alleged change in

testimony of the Customs inspector. At the suppression

hearing, the inspector testified that after arresting

petitioners he read them the Miranda warnings and

ascertained that they understood their rights. The

inspector further testified that petitioners made no

statements whatsoever at that time (1 S.H. Tr. 69-74).

Although the inspector did not expressly state that

petitioners had declined to waive their rights at that

time, that conclusion was certainly suggested by the

inspector’s testimony concerning petitioners’ complete

silence following their receipt of the Miranda warnings.

‘Had petitioners’ counsel wished to emphasize this point

further, they could have either questioned the inspector

about petitioners’ silence during the course of their

extensive cross-examination or placed petitioners on

the stand. They did neither.’

At trial, the inspector made explicit what was

implicit in his prior testimony, namely that petitioners

had chosen to remain silent immediately after they

were given the Miranda warnings for the first time (1

Tr. 45). Because this testimony was consistent with the

inspector’s testimony at the suppression hearing,

petitioners’ assertion that the inspector “materially

altered” his testimony is erroneous. Moreover, as we

have noted in point la above, the government never

asserted that petitioners waived their rights at this

juncture, nor did it attempt to introduce any

’Petitioner LaMorte claims (Pet. 20) that these tactics would

have been unavailing because “six government agents back up

[sic] [the inspector's! substantial misstatement.” But the inspector,

who was the government's first witness, was the only witness to

recall this episode with clarity. The other government witnesses

either were not present at that time or were unable to remember

what occurred (2 S.H. Tr. 45-46).

10

statements made at that time.’ Rather, the government

demonstrated that an hour later, when the DEA agents

gave petitioners a second set of warnings, petitioners

knowingly and voluntarily waived their rights. In these

circumstances, the district court correctly denied

petitioners’ motion for a mistrial.

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WapbDE H. McCree, Jr.

Solicitor General

PuHiLip B. HEYMANN

Assistant Attorney General

JOHN VOORHEES

Attorney

May 1979

‘Indeed, no questions were asked by the Customs officials at

that point.

DOJ-1979-05

la

APPENDIX

(The following statement does not constitute a forma!

opinion of the court and is not to be reported. It shall not

be cited or otherwise used in unrelated cases.)

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Dkt. No. 78-1350 »

-against-

THOMAS LAMorTE and CAROLE SHEAR,

Defendants-Appellants.

Before:

Hon. STERRY R. WATERMAN, WALTER R. MANFIELD

and WILLIAM H. TIMBERS, Circuit Judges.

New York, N.Y.

February 8, 1979

STATEMENT MADE BY THE COURT AT DISPOSITION

OF APPEAL IN OPEN COURT

JUDGE MANSFIELD:

1 believe you are aware that our custom, where we

believe that nothing of precedential value would be

served by rendering a written opinion, is to dispose of

the case from the bench and that is what we are going

to do in this case. We have read your briefs very

carefully. We've reviewed the pertinent portions of the

record and we are going to affirm. That’s no reflection

upon the competency of either of you two gentlemen.

You've presented your cases very well, argued them

well, and I think you have put your points in the best

light in which they could be put. But we do not think

they are sufficiently persuasive to require reversal here.

Very briefly, I'll state our reasons for the record as

best I can. This is an appeal by the two appellants

from convictions of three counts charging unlawful

possession and importation of cocaine in violation of

Title 21 U.S.C. §841 after a jury trial before Judge

Bramwell. The principal contention upon this appeal is

that statements made by the appellants following their

arrest at the airport, Kennedy Airport, upon arrival

from Lebanon via London, were improperly admitted

into evidence at trial because they were obtained by

the authorities without valid waiver of their rights to

remain silent and to counsel and that a new trial

should have been granted in light of evidence

discovered after trial.

1 will not review the facts in detail except to say

that on the evening of February 2, 1978, these two

appellants arrived at the airport. A customs agent

named Resnick, after searching their baggage found

secreted in a false bottom of one of the bags white

powder that was identified as cocaine and, after

identifying himself and advising the appellants of their

rights, he asked them whether they wished to waive

their rights and they said, “No, they did not.” He then

suspended any further questioning. After about an

hour or so an agent of the Drug Enforcement

Administration arrived on the scene and he took over

the matter and assumed jurisdiction. He advised the

2a

appellants of their rights, doing so independently, first

with LaMorte. Each of them said that they were

willing to answer questions and | think Shear also said

that she did not want a lawyer and answered the

questions. Each denied any knowledge of the cocaine

being in the baggage.

There followed further testimony by Agent Giaimo

regarding the events of that evening. This evidence of

their statements was the subject of a motion to

suppress at which the agents testified but the

appellants, who had the right to do so without their

testimony being admitted at trial, chose not to do so.

The judge concluded that he would deny their motion

to suppress and from that denial the defendants

appealed. Applying the principles set forth by the

Supreme Court in Michigan v. Mosley, 423 U.S. 96,

and in our court in United States v. Cullums, 462 F.

2d 792, to the effect that an initial refusal to waive on

the part of a defendant does not preclude further

efforts, after a reasonable period of time and after

further warning of constitutional rights, to see whether

the suspect will talk, we find that in this case that

there was no violation of the constitutional rights of |

the defendants to remain silent and to refuse to do

anything without counsel. Accordingly we believe that

it is necessary here to confirm that the statements were

voluntarily made and that they were not obtained in

violation of the defendants’ rights.

As for the newly discovered evidence point, we find

that the evidence was not sufficient to entitle

appellants to a new trial under the standards that we

have established in this district. | refer specifically, for

instance, to our decision in the Stofsky case. United

States v. Stofsky, 527 F. 2d 237 (1975).

3a

As for the point raised that there was insufficient

evidence that the appellant Shear knew the baggage

contained cocaine and believed it contained hashish

rather than cocaine, we've already ruled on several

occasions, the last of which was the United States v.

Morales, 577 F. 2d 769 (2d Cir. 1978), with which

Judge Waterman is quite familiar, that the defendant

need not know the exact nature of the regulated drug

to violate §841.

Accordingly, we affirm the judgments of conviction

with respect to those appellants.

4a