Petition — Brandon v. United States

JUN 4 1979

$f renicrdnimenerrorntire |, CLERK

IN THE

SUPREME COURT OF THE UMTED STATES

Term, 1979

-7#= 1806

G. T. BRANDON and

BRANDON BROTHERS USED CARS, INC. - Petitioners

versas

UNITED STATES OF AMERICA - .-_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

E. W. RIVERS

Suite 801

Citizens Bank Building

Paducah, KY 42001

Attorney for Petitwners

WESTERFIELD-BONTE CO,., G18 W. KENTUCKY =?.6. BOX S281, LOUIBVILLE, KY,

TABLE OF CONTENTS AND AUTHORITIES

PAGE

Petition for Writ of Certiorari..................... 1-16

Tithe 38 USCA Section 1254(1).................-. 2

Title 15 USCA Section 1984, 1990(c)............. 2

Fourth Amendment of the United States Constitu-

En, eid) aa uk cle eine awedecatvecs 4

Fifth Amendment of the United States Constitu-

a ee es cas abi wences 4-5

EI SS )

Caldwell v. Lewis, 417 U. S. 583, 590............. 10

Katz v. U. S., 389 U. S. 347 at 350, 88S. Ct. 507.... 11

Wattenburg v. U. S., 388 F. 2d 853 (1968) (9th)... 11

MOP ck ccc see eses 12

U.S. v. Mandujano, 425 U. S. 564, 48 L. Ed. 2d 212,

96 S. Ct. 1768 stated at 96 S. Ct. page 1778 and

SD 14-15

EE SS 17-20

GGL a. a slob ease sss desiccee 17-18

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1979

No.

G. T. BRANDON and

BRANDON Brotuers Usep Cars, Inc. - Petitioners

v.

UNITED STATES OF AMERICA santana Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioners, G. T. Brandon and Brandon

Brothers Used Cars, Inc., request that the Writ of

Certiorari be issued to review the opinion and judg-

ment of the United States Court of Appeals for the

Sixth Circuit rendered in these proceedings on May 3,

1979.

1(a)

The oninion of the Court of Appeals was rendered

on May 3, 1979 and is unreported.

1(b) (i)

The judgment of the United States Court of Ap-

peals for the Sixth Circuit was entered on May 3, 1979

and it is final by its terms.

1(b) (iii)

The jurisdiction of this court is invoked under the

provisions of Title 28 USCA Section 1254(1).

1(c)

In December, 1976, the Grand Jury was conducting

an investigation under the odometer law, Title 15

USCA Section 1984, 1990(¢). The Grand Jury was

scheduled to meet on December 13, 1976 and subpoenas

were issued for about six wholesale used car establish-

ments in Calloway County, Kentucky. FBI agents

were to serve the subpoenas. The subpoenas called for

hundreds of documents, which were to be presented to

the Grand Jury that day. There was also a letter

addressed to Petitioner, Brandon, and the corporation,

which read that pursuant to an official criminal in-

vestigation of suspected violations of the federal law,

being conducted by the Grand Jury in Western Ken-

tucky, and that they were served with a forthwith

subpoena. Agent Bishop went into the office and served

the Petitioner, Brandon. He was not advised of his

rights. Another agent, Houston, went on the lot where

the office was and checked the identification numbers on

some cars and the odometer readings on the cars. The

odometer readings on three automobiles on the lot re-

sulted in the indictment of the Petitioner for altering

the three odometers. At no time was Petitioner,

Brandon, the President of the corporation, advised of

his rights. Agent Houston never obtained the consent

3

of the Petitioner to obtain the odometer readings. The

question presented is:

(1) Were the FBI agents required to have a

search warrant before searching the cars on

the Petitioner’s property?

The Grand Jury subpoenaed the records of Bran-

don Brothers Used Cars, Inc., and Brandon, as Presi-

dent, was subpoenaed by the Grand Jury to produce the

corporate records. Brandon appeared before the

Grand Jury on December 13, 1976, December 15, 1976

and December 16, 1976. He answered questions as to

the documents presented and took the fifth amendment

at various times throughout the interrogation by the

government. An order to show cause was issued

against Petitioner, Brandon, and a hearing was held

on January 19, 1977. At that time, the court ruled in

an opinion and order (EX-1) wherein the court ordered

that six questions were to be asked by the government

of the Petitioner, Brandon. The order provided that

only the six questions shall be answered by the Peti-

tioner and none others. The order further provided,

that the Petitioner shall not be required to answer any

questions pertaining to individual entries made on any

documents, which are produced to him. <A subpoena,

dated January 14, 1977, requested documentation as to

the list of cars which the government agents had inven-

toried on the Petitioner’s property on December 13,

1976. Before the Grand Jury, the prosecution de-

parted from the six questions directed to be asked by

the court and asked some thirty pages of questions,

4

which did not relate to the six questions ordered asked

and answered by the court. Brandon was questioned

about the very documents relating to the three auto-

mobiles for which he was indicted; about entries on

those documents and about Jackie Brandon, to whom

the Petitioner had sold the automobiles quite some time

before the search on December 13, 1976. The question

is:

(1) Should the evidence, and the fruits thereof,

given by Petitioner, Brandon, before the

Grand Jury, to questions prohibited being

asked by the court, be suppressed and not be

admissible at the trial of his case?

1(d)

The fourth amendment of the United States Con-

stitution provides:

‘The right of the people to be secure in their per-

sons, houses, papers, and effects, unreasonable

searches and seizures shall not be violated, and no

warrant shall issue but upon probable cause, sup-

ported by oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.’’

The fifth amendment of the United States Con-

stitution provides:

‘No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

eases arising in the land or naval forces, or in the

Militia, when in actual service in time of war or

5)

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any eriminal

case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.”

1(e)

On May 15, 1978, the Grand Jury at Paducah, Ken-

tucky, returned a three count indictment against the

Petitioners. They were charged in count 1 with alter-

ing the odometer on a 1974 Oldsmobile, in order to

change the number of miles indicated thereon approxi-

mately 104,469 miles to 44,774 miles. Count 2 charged

them with altering the odometer of a 1972 Oldsmobile,

with the intent to change the number of miles indicated

thereon from 100,651 to 48,010. The third count

charged the Petitioner with altering a 1975 Oldsmobile

odometer with intent to change the number of miles

thereon from approximately 49,087 to 29,397. The

Petitioners were found guilty under counts 1 and 2, but

were acquitted on count 3.

The Petitioners had been in the wholesale used car

business for some 28 years. Prior to 1976, Petitioner

had bought and sold between 1,000 and 1,200 ears :

year. He was getting up in years and was required to

be on the road a lot, away from home, attending auc-

tions and buying and selling cars. In 1976, he decided

to slow down and stay off the road and spend more

time with his family. He had known Jackie Brandon

for about 45 years and he was a distant cousin. Bran-

6

don testified that he made an arrangement with Jackie

Brandon to the effect that when the Petitioner pur-

chased an automobile, Jackie Brandon would pay him

a hundred dollars over what is called the invoice price

or whatever Brandon paid for the car plus the Peti-

tioner’s expense in bringing the car to Murray and

cleaning up the car. This agreement involves the three

Oldsmobiles that are the s»bject of the three counts in

the indictment.

The Petitioners bought automobiles from various

wholesale dealers, leasing companies, car rental agen-

cies throughout the United States. The three auto-

mobiles in question were purchased by the Petitioner

from Royal Auto in Birmingham, Alabama. Royal

Auto, through its President, Mr. Newby, when it had

ears, would call the Petitioner at Murray, Kentucky

and describe the particular car he had and what he

wanted for it and what repair work would have to be

done. Newby would record that in his office along with

the date of sale, the price, the mileage and so forth.

The Petitioner would send a bank draft to Royal, which

was in an envelope and when Royal got the title papers,

they would forward the title papers along with the bank

draft to Petitioner’s bank at Murray, Kentucky. After

the telephone conversation, Brandon’s independent

contractors, would go from Murray, Kentucky to

Birmingham, Alabama and bring the ears back to

Murray, Kentucky. As soon as the cars were received

on the lot, the Petitioner would inventory the cars, take

the odometer mileage readings and the vehicle identi-

fication numbers and make sure it was the car he had

7

purchased. He would then call Jackie Brandon, to

whom he had already sold the car, who would then or

at a later date, pick up the car and have what me-

chanical repairs were needed performed on the ear.

He would return the car to the Petitioner’s lot and the

Petitioner would do the clean up work on the auto-

mobile, namely the paint, upholstery and anything that

was needed to be done to the car to put it in good condi-

tion, except the mechanical and body work, which Jack

Brandon had performed by himself or other people.

The three Oldsmobiles in the three counts of the indict-

ment were on Petitioner’s property on December 13,

1976, when the agents inventoried the cars and checked

the odometer readings. The Petitioner had picked up

the cars and actually sold them before receiving the

title papers and odometer statements from Royal Auto

in Birmingham, Alabama. None of the title papers

nor did any of the checks or drafts clear the Peti-

tioner’s bank at Murray, Kentucky until after Decem-

ber 13, 1976. They were subsequently picked up and

removed from the Petitioner’s premises by Jackie

Brandon, when the title papers arrived. The evidence

and checks were introduced to show that Jackie Bran-

don had paid for each of the three automobiles.

Under federal law, the seller or transferor of an

automobile in the automobile business is required to

give an odometer statement. The Petitioner’s odometer

statements on all three of the automobiles showed the

correct mileage. They showed the same mileage as was

recorded at Birmingham, by Royal Auto, in addi-

tion to the 330 miles from Birmingham to Murray,

8

Kentucky, the distance traveled by the ears. The

Petitioner gave Jackie Brandon an odometer statement

for each Oldsmobile in the indictment which showed

the correct mileage on the car on the date of its arrival

at the Petitioner’s lot in Murray, Kentucky. Jackie

Brandon signed as the transferee on each odometer

statement. His signature was identified on the odo-

meter statements and on the checks that he had given

the Petitioners for the automobiles by the banker that

Jackie Brandon did business with in Murray, Ken-

tucky. It was established at the trial of the case, that

Jackie Brandon was involved in an automobile acci-

dent with the Oldsmobile, which is the subject of count

3. This occurred on December 6, 1976, prior to the

search by the agents on December 13, 1976. Jackie

Brandon was listed as the owner on the police report

and he filed a claim against the other car’s insurance

company and was paid for the damage to the 1975

Oldsmobile, even though title papers had not been

transfered nor had Jackie Brandon paid for the ear

as of that time. Jackie Brandon returned the wrecked

Oldsmobile to Petitioner’s lot where it was inventoried

by the FBI and had the altered mileage on the odo-

meter. This was the course of dealing followed by

Petitioner with their dealings with Royal Auto, and

other wholesale car dealers and with Jackie Brandon.

Jackie Brandon was subpoenaed by the Petitioners at

the trial, but was unable to be found and did not

appear.

The Petitioner is a wholesale used car dealer and

not a retail used car dealer. It was the government’s

|

9

contention throughout that the Petitioner was a retail

used car dealer. The Petitioner had a wholesale car

license and a retail car license issued for one person,

which was to the Petitioner. The Petitioner buys cars

from dealers, leasing companies, and they are brought

to his place of business, where they are cleaned up,

waxed, polished, upholstered and put in excellent condi-

tion. Some of the cars are sold to wholesale dealers,

who come to his office. Most of them were taken to

auctions. The only time he sells a car retail is to some

friend and he has never sold over four or five cars a

year retail. Petitioner does not have any salesmen

selling cars off of the lot and has but one bookkeeper

and three employees, who are engaged in the clean up

work on the automobiles. The Petitioner’s lot is not

open to the general public and they have never been

allowed to come on his '*t or in his garage. If a mem-

ber of the general public wanted to buy a ear at retail,

the Petitioner would refuse them, since he was not

interested in the retail business, which involved finane-

ing, warranties and other paper work, which was not

involved in the wholesale business.

1(g)

The jurisdiction of the United States District Court

for the Western District of Kentucky at Padueah,

Kentucky, is conferred by Title 18 Section 3231.

1(h)

The Court of Appeals disposed of the Petitioner’s

Fourth Amendment claim summarily. The Court

10

stated that the agent’s testimony was undisputed and

it was to the effect that they entered the used car lot,

looked at the automobiles, and were never asked to

leave or forbidden to look in the windows and that this

was a commercial establishment open to the public.

The facts are that the Petitioner did not know that

FBI agent, Houston was on his premises taking

odometer readings and identification numbers from

the cars. Brandon was inside the office talking to FBI

agent, Bishop, who was delivering the subpoena and

letter and consequently had no opportunity to ask

Houston to leave or quit taking the odometer readings

or VIN numbers. Agent Houston’s testimony was that

he could get the VIN numbers from looking through

the windshields and the odometer readings from look-

ing through the windows and that he does not remember

if he opened the doors of the cars to get the odometer

readings or not, because he thought they were locked,

but he was not positive. Other testimony was to the

effect that you can’t get odometer readings from simply

looking through the window without opening the car

doors. It was brought out on cross-examination that

Houston would have had to open some doors to get the

VIN numbers and the odometer readings. This was

especially true of vans. The court cited the case of

Caldwell v. Lewis, 417 U. S. 583, 590 as authorizing the

search of the automobile. The Caldwell case went up

to the Supreme Court from the Sixth Circuit and this

court held that an exterior search of an automobile on

a public parking lot was not unreasonable under the

fourth and fourteenth amendments. The court held

11

that no expectation of privacy was violated by the ex-

amination of tire on operative wheel or in taking of

exterior paint samples from the vehicle which had been

parked in a publie place. The immediate case does not

involve an exterior search, but a search conducted on

the premises which were not commercial. True it was

a business, but it was a business where the general

public was excluded and was not the ordinary run of

the mill retail used car lot that are so prevalent. The

Petitioner only dealt with wholesalers and not the per-

sons wishing to buy automobiles at retail.

In Katz v. U. 8., 389 U. S. 347 at 350, 88 S. Ct. 507,

this court held that what a person seeks to preserve as

private, even in an area accessible to the public, may

be constitutionally protected. The case of Wattenburg

v. U. 8., 388 F. 2d 853 (1968) (9th) presents a very

similar fact situation. In that case, Defendants were

convicted for conspiring to conceal about a hundred

christmas trees which had been taken from the U. S.

The evidence shows that the trees were cut and were

taken to the premises known as Hide-a-way Lodge.

The distance between where the trees were stockpiled

and the lodge was from 20 to 35 feet and the stockpile

was about five feet from the parking area used by per-

sonnel and patrons of the lodge. Wattenburg operated

and lived at the lodge and the other Defendant, Owens .

rented a room there, which he sometimes occupied.

Government agents conducted a search on _ these

premises and obtained cuttings from trees which

matched the stumps on the government land and a

paint smudge on one of the trees which matched that

12

of the vehicle that transported them. The government

contended that the search was good under the ‘‘Open

Fields Doctrine’. The Ninth Circuit held that there

was no difficulty in holding that the trees were within

the curtilage, }-1t the court went on to hold that it

seems to be a more appropriate test in determining if

a search and seizure adjacent to a house is constitu-

tionally forbidden is whether it constitutes an intru-

sion upon what the resident seeks to preserve as

private. Even in an area, although adjacent to his

home, accessible to the public, the court held the search

was illegal and the evidence was suppressed. The

christmas trees were stockpiled so close to the lodge,

which rented rooms to patrons, who used the lodge

and the parking lot, that it was protected from a war-

rantless search. The automobiles in this case were

adjacent to the office of the Petitioners and all the evi-

dence was to the effect that it was not a business open

to the publie in general and was not there for com-

mereial in the sense that the Sixth Cireuit used the

word. The motion to suppress the odometer readings

from the three Oldsmobiles should be suppressed, since

it was a search conducted without a warrant on the

Petitioner premises.

The court dismissed the Petitioner’s claim of abuse

of the due process clause and held that this case dis-

closed no such due process abuse as was involved with

U. S. v. Doss, 563 F. 2d 265 (6). In the Doss case,

the indictments were dismissed for the reason that the

Defendant, who had been secretly indicted by sealed

indictments, was called before the Grand Jury that

13

indicted him and was questioned about the offenses in

the indictment. The court held that this was a viola-

tion of the fourth and sixth amendment of the constitu-

tion and dismissed the indictments. The Court, in the

ease now before the court stated that.it could not

ascertain any prejudice involved in his answers to the

six questions which the district court required him to

answer. (Italics ours.) The Petitioners never ob-

jected to being asked these six questions nor did the

Petitioners claim any prejudice by reason of answering

these six questions. The Petitioners contend that the

some thirty pages of questioning by the prosecutor,

which in no way related to the six questions, violated

his fifth amendment privilege in incriminating himself

and prosecutor’s actions and questions violated the due

process clause of the fifth amendment. The Petitioner,

on his three previous trips before the Grand Jury, had

invoked his privilege against self incrimination on some

questions and had answered others. But in his last

appearance, the court directed that only six questions

be asked and none others. The court had already de-

termined that any other questions propounded by the

prosecution in the Grand Jury room, was subject to the

Petitioner’s former claim of his fifth amendment privi-

lege. The court in effect, told the U.S. Attorney that

any questions other than these six, if answered would

violate the petitioner’s fifth amendment privilege. It

cannot be questioned that the U.S. Attorney violated

the direct order of the court before the grand jury.

The Petitioner was questioned about the very docu-

14

ments relating to the three automobiles in the indict-

ment. The questions were asked as to entries on these

documents, which violated the court’s order that the

Petitioner was not required to answer any questions

pertaining to individual entries on any documents

produced to him. These very documents were used in

the government’s case at trial and the petitioner’s

motion to suppress these documents was denied. The

Petitioner was asked questions about his dealings with

Jackie Brandon, who the Petitioner testified actually

owned the automobiles at the time they were inven-

toried on December 13, 1976, by FBI agents. The Peti-

tioner was questioned about other employees who

worked for him and numerous other questions in direct

disobedience to the court’s order.

Chief Justice Berger, in the case of U. S. v.

Mandujano, 425 U. 8S. 564, 48 L. Ed. 2d 212, 96 S. Ct.

1768, stated at 96 S. Ct. page 1778:

‘*‘Under Miranda, a person in police custody has,

of course, an absolute right to decline to answer

any question, incriminating or innocuous, see

Michigan v. Mosley, 423 U. 8. 96, 46 L. Ed. 2d 313,

96 S. Ct. 321 (1975), whereas a grand jury witness,

on the contrary, has an absolute duty to answer all

questions, subject only to a valid fifth amendment

elaim. And even when the grand jury witness

asserts the privilege, questioning need not cease,

except as to the particular subject to which the

privilege has been addressed. Cf. id., at 103-104,

46 L. Ed. 2d 313, 96 S. Ct. 321. Other lines of

inquiry may properly be pursued.”

15

The Court at 96S. Ct. at page 1776 stated:

“The stage is therefore set when the question is

asked. If the witness interposes his privilege, the

grand jury has two choices. If the desired testi-

mony is of marginal value, the grand jury can

pursue other avenues of inquiry; if the testimony

is thought sufficiently important, the grand jury

can seek a judicial determination as M4 the bona

fides of the witness’s fifth amendment claim. (Cit-

ing Cases), in which case the witness must satisfy

the presiding judge that the claim of privilege is

not a subterfuge. If in fact ‘there is reasonable

ground to apprehend danger to the witness from

his being compelled to answer,’ (Citing Cases),

the prosecutor must then deter mine whether the

answer is of such overriding importance as to

justify a grant of immunity to the witness.”

This case goes far beyond the court’s guidelines in

Mandujano, supra. The petitioner when he was in the

grand jury room, with twenty three grand jurors, a

court reporter and two assistant U.S. Attorneys, went

ahead and answered the questions which the court had

specifically prohibited in its erder. The government

cannot contend that the Petitioner, by not interposing

his grounds of privilege, has waived his rights. The

court in its order, had interposed the petitioner’s fifth

amendment rights to any questions other than the six,

which it authorized to be asked. If ever there was a

violation of the due process clause and the overriding of

the petitioner’s right not to incriminate himself, this

case is the shining example. The U.S. Attorney’s

office, in spite of the court’s ruling, proceeded to use

16

the Grand Jury as an investigative tool in order to

convict the petitioner. The motion to suppress all

documents and evidence relating to the three Olds-

mobiles in the three count indictment should have been

suppressed and not been admissible in the trial of this

action.

WHEREFORE, THE Petririoners Request this court

that a Writ of Certiorari be issued to the United States

Court of Appeals for the Sixth Cireuit, reversing their

decision in this case.

FE. W. Rivers

Suite 801

Citizens Bank Building

Paducah, KY 42001

Attorney for Petitioners