Petition — Ochs v. United States

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

aadiions pa SacacmaCourt, U&

FILED

In The

| JUL 24 1979

, @ ot the : M@ RODAK, JR., CLERK

es Rare.

October Term, 1978

No. 29-203

GEORGE OCHS,

Petitioner,

vs.

UNITED STATES CF AMERICA,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STEVEN H, GIFIS

Attorney for Petitioner

68 Bayberry Road

Princeton, New Jersey 08540

(609) 466-3550

_ THE SUPERIOR APPELLATE PRINTING COMPANY

P Oo 80x 363 AREA CODE 609

CRANGURY N J OB8SI2 443-4202

TABLE OF CONTENTS

OPINIONS BELOW CeSHCSHCS SHS ESCH EEHESEEOSEEEOSEEESEEEEEOEES

JURISDICTION COPS HHSC EEECESEHREFEEEEESEREEEEEEESS

ORDER DENYING PETITION FOR REHEARING AND

ORDER EXTENDING TIME TO FILE

PETITION FOR CERTIORARI eeeeeceeseeeeseeseseeeeeeeen

CONSTITUTIONAL, STATUTORY AND RULE

PROVISIONS INVOLVED eeeeeoeseseeeeeseeeeseeseeeeeees

QUESTIONS PRESENTED eeeeeeseeseeeeseeseeseeseseseeeeeeees

STATEMENT OF THE CASE SCeeeseeeeeeeseeeseeseeeeseeseeeseses

REASONS FOR GRANTING THE WRIT

POINT I

CERTIORARI SHOULD BE GRANTED AND THE CASE

WITH THIS COURT'S DECISIONS IN ARKANSAS

Vv. SANDERS and UNITED STATES V. CHADWIG CHADWICK....

Subpoint A

Chadwick and Sanders condemn as

constitutionally unreasonable war-

rantless searches of suitcases once

safely in police custody in the

absence of exigent circumstances.

The rationale of these cases is

fully applicable to the instant

case involving closed briefcases

containing private papers. ...ceccccccccce

PAGE

S int B

custody thus presents no retr

issue. seen GR Te 22

iii

CONTENTS

unreasonably investigatory, the ii-

legal impoundment should not be jus-

tified on the basis of what the

police could have done had their

motivations and analysis of the

situation been different. @eeeeseeeoeeaee ee eee

POINT III

CERTIORARI SHOULD BE GRANTED SO THAT

THIS COURT CAN RESOLVE THE CONFUSION

AND UNCERTAINTY BEIWEEN MOTIONS ADDRESSED

TO MISJOINDER UNDER F.R. Cr. P. 8 AND

PREJUDICIAL JOINDER UNDER F.R. Cr. P. 14

THAT LED THE COURT BELOW TO UPHOLD AN

OPPRESSIVE JOINDER OF FALSE DEPENDENCY

CHARGES WITH AN UNRELATED EXTORTION CHARGE.

POINT IV

CERTIORARI SHOULD BE GRANTED SO THAT

WHETHER "CORRUPTLY” IS A MENS REA ELE-

MENT OF THE NOW FREQUENTLY CHARGED

OFFENSE OF OBSTRUCTION OF JUSTICE UNDER

18 U.S.C. § 1503 AND APPLY ITS PRECE-

DENTS HOLDING THE OMISSION OF ESSENTIAL

ELEMENTS FROM THE JURY CHARGE TO BE

PLAIN ERROR. eeeeesseeoeeeeeeseeeeeeeeeeeeeeesnes

POINT V

CERTIORARI SHOULD BE GRANTED SO THAT A

SENTENCE WHICH ON ITS FACE IS IRRATIONAL

AND IMPROPERLY MOTIVATED CAN BE VACATED

IN THE INTEREST OF MAINTAINING AND FOSTER-

ING THE INTEGRITY OF THE FEDERAL JUDICIARY.

CONCLUSION eeeeeeeeeoeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees

PAGE

TABLE OF CITATIONS

PAGE

Cases Cited:

v. Sanders, 47 U.S.L.W. 4783 ;

(June 20, TOON. cru occcte cssecnesees ocenee4 PROEIM

Baker v. United States, 401 F.2d 958 m

(D.C. Cir. 1968) oO SO9S0SO0 800999 COC SSOHO?®

Bayless v. United States, 381 F.2d 67, 72 “

(9th Ci; 1967) beh O00 S06 2E08000800200002000°%°

Blackledge v. Perry, 417 U.S. 21 (1974) ..---e- 73

Bollenbach v. United States, 326 U.S. -

607 (1946) Cece obSSb CESSES EE ES SEs OR eeeeeN°”»

v. United States, 239 F. 82 a

(2d Cir. 1917) AS HOSA SHORES OHS?e CHAM OENOO®

Broadbent v. United States, 149 F.2d

580, 581 (10th Cir. 1945) eoeeeeeeeeeeeseeee® 64

Cady v. Dombrowski, 413 U.S. 433, 437 oa

(1973) 0008 00.008 28200529 09200.0 009° 90° eeeeeveeee ’

Carro tates, 267 U.S. 132

ctr te WE cere extsetcezerh, ae 15,23,24,33

Chambers v. Maroney, 399 U.S. 42 age .

(1970) .. o consnsen cennensene.oee sean? °OS" © passim

Cole v. United States, 329 F.2d 437, 439-41

(9th Cir.), cert. den., 377 U.S. 954

(1964) cede e 60000 066S065 00090545 R008 9 eee? Sl”

Crespo v. United States, 151 F.2d 44, 46-47

(lst Cir. 1945), cert. dism., 327 U.S. 758

(1946) ccccccccccccccccccccccccccccesccccce

v. United States, 418 U.S. 424, 440

(1974) ccccccccccccccccsccccccccccccccccces

Drew v. United States, 331 F.2d 85, 87

(D.C. Cir. 1964) @eeeeeoeea eases eea eee eeeaeae eee?

v. New York, 47 U.S.L.W. 4635,

4639 (June Ss, 1979) eeereeeeeeeeeeeece

Ex parte Jackson, 96 U.S. 727 (1878) ..

Finnegan v. United States, 204 F.2d 105

(SG Cav. 1953) soccecccccvccese

Gaunt v. United States, 184 F.2d 284, 288

(lst Cir. 1950) eeeeneaeeneaeaeceaeneeaeeeeeeenee eee

Ingram v. United States, 272 F.2d 567

(4th Cir. 1959) @eeeeeoeaeeee eee ean eeaeeaeaeaeeaenene

Jones v. United States, 357 U.S. 493

(UGG) cccccccccccccccccacccevccccccosccccs

King v. United States, 355 F.2d 700

(lst Cir. 1966) e@eeeeeea eevee eee eeeaeeeeae ee eee

Livers v. United States, 185 F.2d 807,

809 (6th Cir. SE BGR KAE EE EATERS 6b 6 6c

Lowe v. Caldwell, 367 F. Supp. 46, 53 n.1l

(S.D. Ga. 1973) eeeeeeeeeneeeeeeeeeeeeeeeeee

PAGE

74,75

50,51

38,40

CONTENTS

Mancusi v. DeForte, 392 U.S. 364, 372 n.12

(19GB) . ccuvesevaptescccccsceccssnercense®

Martin v. United States, 166 F.2d 76, 79

(4th Clk. 1948) eed SOSH SS COKCROTH OCBCOOCSC®

McDonald v. United States, 335 U.S. 441,

Vee) |:) ee ee

Michigan v. DeFillippo, 47 U.S.L.W. 4805,

4807 n.3 (June 25, 1979) ..-seeeeeeereeerees

Mincey v. Arizona, 437 U.S. 385 (1978) ...--

Mozzetti v. Superior Court, 4 Cal.3d 699,

94 Cal. Rptr. 412, 484 P.2d 84 (1971) ....

North Carolina v. Pearce, 395 U.S. 711, 726

(1969) 0 Ob OOOO SO © OOS O10 6 FO 09S S OO900°

y. Denman, 19 Cal. App. 3d 632, 97

Cal. Rptr. 23 (1971) eeceeoeneeeeoeoeaeeeeeeee

People v. Gravia, 527 P.2d 543, 185

Colo. 128 (1974) © B'S :O 6 OO FE 6.0. 6 O-9:0:0,0:9 8 19.00

People v. Hamilton, 371 N.E. 2d 1234, 56 Ill.

App. 34 196, 14 Ill. Dec. 181 (1978) ..---

v. Sullivan, 292 N.Y.S.2d :: PR

Misc.2d 208 (1968) ecccceececeeeoeoseeeseeee®?

Preston v. United States, 376 U.S. 364

(1964) .cccccccccccccccccccccscccsesosore®

PAGE

28 ,43,73

72,74,76

a ene

vil

CONTENTS

PAGE

Robbins v. California, _ Cal. Rptr. 2d

(Cal. Ct. App. 1978), remanded for

reconsideration in light of Sanders, 47

U.S.L.W. 3825 (June 25, 1979) ........... 14,25,26

Screws v. United States, 325 U.S. 91,

IOF.. {IDEB). <o 6.0.0 ddicvcwsvodenscontd decedecece 62

Silverthorne Lumber Co. v. United States,

251, U.8.. 305 5° 302 (ASAD) “Sree decevecesccccce 42

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

(1976) e@eeeeenoeoeceeee eee ees eee eaeeaeae eee e028 11,14,30-35,41

State v. Ercolano, 79 N.J. 25, 38, 397

A.2d 1062 (1979) eeeeeneeaeaeeeeaeeeeeeeeeeeee 44

State v. Gwinn, 301 A.2d 291 (Del. 1972) .... 36

State v. Parker, 380 A.2d 291, 153 N.J. Super.

481 (1971) eeeneeeoeveeeeeeeeee eee eee eee eee e8 36

State v. Walker, 579 P.2d 1091, 1098, 119

Ariz 121 (1978) eeeeeeeeeeee eee ee eeaeeneeeee8 37

Texas v. White, 423 U.S. 67, 68 (1975) ...... 33

Tincher v. United States, ll F.2d 18, 21

(4th Cir.), cert. den., 271 U.S. 664 (1926) 76

United States v. Berry, 571 F.2d 2 (7th Cir.

1978) eeeeeeeveeveeevee eo Moe eeeeee eee eeeeenee eee 26

United States v. Burkley, 591 F.2d 903, 919

(D.C. Cis. 1978) e@eeeeeeveeseee eee eeeee ee ee 50

viii

United States v. Chadwick, 393 F. Supp. 763

(D. Mass. 1975), aff'd, 532 F.2d 773

(lst Cir. 1976), aff'd, 433 U.S. 1 (1977)...

United States v. Chadwick, 433 U.S. l

(1977) ccccccccccccccccccccccccccccccccc ccc cee, passim

United States v. Cioate, 576 F.2d 165, 182

n.20 (9th Cir.) cert. den., U.S. EES,

(1978) .ccccccccccccccccsccccccccccccccccccce

United States v. Cohen, 202 F. Supp. 587, 588

(D. Conn. 1962) eeeeeeeeeeeeeeeeeeeeeeeeeeee

United States v. Cosentino, 191 F.2d 574, 575

(7th Cir. 1951) @e@eenseeeeeaeeeeaeeeaceaeaereea eae ee eee

United States v. Crouch, 528 F.2d 625, 631

(7th Cir.), cert. den., 429 U.S. 900

(1976) ccccccccccccccccccccccccccccccccccccs

United States v. De Marco, 488 F.2d 828,

832 (2nd Cir. 1973) eeseeeeeeceaeeea eee e eee eeeneee

United States v. Diggs, 569 F.2d 1264

(3rd Cir. 1977) @eeeeeacea een eaeeaenee ee eeaeaea een ee e2c¢@

United States v. Donohoe, 458 F.2d 237, 239

(10th Cir.), cert. den., 409 U.S. 865

ASTD) stwnceoah evgeba th iiocnsatcchestivs

United States v. Edwards, 577 F.2d 883,

894-95 (8th Cir. 1978) @eeeeeseceeaee eee eeeeeeee

PAGE

27,35

62,63

United States v. Ester, 442 F. Supp. 736

(S.D.N.Y. 1977) eeereeeeeeeeeeereseeeeesesesce

United States v. Fasolino, 449 F. Supp. 586

(W.D.N.Y.), aff'd, 586 F.2d 939 (1978)......

United States v. Figueroa-Paz, 468 F.2d

MSD o LOSS, LGU. CIE. 39TS)! Con cckhaasicccee,

United States v. Finnegan, 568 F.2d 637

(9th Cir. 1977) eeeeeeeeeeeeeeeeeneees eeeee ee

United States v. Foutz, 540 F.2d 733, 736

(4th Cir. 1976) eeerereeeeeeeeeeeeeseeeseeeeeses

United States v. Frank, 245 F.2d 284, 288

(3rd Cir.), cert. den., 355 U.S. 819

Ors. eee sedoasanonebinnsdnesd this

United States v. Friedman, 445 F.2d 1076, 1083

(9th Cir.), cert. den., 404 U.S. 958

(1971) eeeeeeeeeece eeeeeeeeeeeeeeeeseeseeeeese

United States v. Gaither, 440 F.2d 262, 264

(D.C. Cir. 1971) eeeeeeeseeeeee eee eseseeseeeeese

United States v. Giles, 536 F.2d 136, 140

WU Se. MOTOR oes knece déckcncieiil. sc.

United States v. Goodman, 285 F.2d 378,

SOW WE is, AOMEE occnsaccvunecbs. cc...

United States v. Granello, 365 F.2d 990,

995 (2nd Cir. 1966), cert. den., 386 U.S.

1019 (1967) eee eeeerecececeeresreeecececeeececesecececece

PAGE

53,54

56,65

CONTENTS

United States v. Gravitt, 484 F.2d 375,

378 (Sth Cir. 1973), cert. den., 414

U.S. 1135 (1974) @eeeeeeeoeeeee ee eeeeeeeeeeee

United States v. Griffin, 464 F.2d 1352,

1358 (9th Cir. 1972) eeeeeeeeceoeeeeeeneeseees

United States v. Grunewald, 233 F.2d 556,

571 (2nd Cir. 1956), rev'd on other grounds,

353 U.S. 391 (1957) eeeeeeeeeeeeeeeeeeeeeeee

United States v. Halper, 590 F.2d 422 (2nd

PAGE

Civ. 1978) eeeeeesaeseeeeseeeseeeeeeses 47,49,50,52

United States v. Harvick, 153 F. Supp. 696

(D.N.D. 1957) e@eeeoeeneeaeeaeea ea eeeaeeea eae ee ee ee eee

United States v. Hastings, 577 F.2d 38, 40

(8th Cir. 1978) e@eenseenee eee eeeeeeeeeeeeeaeeee8@

United States v. Hatcher, 423 F.2d 1086, 1089

(Sth Cir. 1970) @eeeeeeeeeeee eee eeeeeeeeeeee

(2nd Cir. 1969) Cee eeereereerceseseseseseseses

United States v. Jamar, 561 F.2d 1103, 1106

(4th Cir. 1977) e@eeeeneaeeeeeeee ee eeeeeeeneeeee

United States v. Lodwich, 410 F.2d 1202

(8th Cir. 1969) eeoeeeeeeeeeseeeeeeeeeseeeeos

United States v. Lugo, 269 F. Supp. 757

(E.D. Wis. 1967) @eeeeen eee eeaeeeeee eee eaeene ene

United States v. Lyon, 397 P.2d 505, 509

(7th Cir. 1968), cert. den., 393 U.S. 846

TERED nines o Sibbns pods ehedactedcn enc...

United States v. Mandujano, 425 U.S. 564,

572 (1976) COSHCHHHCHCOCHCO HCCC CELOSOCCCECCESCeSCCCCe

United States v. McCambridge, 551 F.2d 865

(lst Cir. 1977) COCCHCHHCOC CESS CECC CEES CCELCCCcCe

United States v. Mullen, 550 F.2d 373

(6th Cir. 1977) Ce eeeeereecescoooceoscocesoeocece

United States v. Ochs, 461 F. Supp. l

(S.D.N.Y. 1978) ereeeeeeeeaeeteeeseeeses eeereveee

United States v. Ochs, 595 F.2d 1247

(2nd Cir. 1979)

United States v. O'Dell, 462 F.2d 224, 233

(6th Cir. 1972) POST COS CSCS CC CCH OES ROCCeCeCCS

United States v. Pagan, 393 F. Supp. 1395

(D.P.R. 1975) eereereeeeeeeseeeeeeee

United States v. Peltier, 422 U.S. 531

PAGE

wT EM ORODSOSSOSSOS Coccec ecg

(1975) eeeeeeceececececccceoeceeceeece eeeereeceecee 7 23,26,27

gs:

xii

CONTENTS

PAGE

United States v. Reda, 563 F.2d 510

(2nd Cir. 1977) e@eeeeneea een eeaeeneeneeaee ee eeee ee ee 8,26

United States v. Robinson, 503 F.2d 208,

215 (7th Cir. 1974), cert. den., 420

nk SE ETD. co uscemabhCicecnocctocccecesese 56

United States v. Roe, 529 F.2d 629, 633

(4th Cir. 1975) e@eeeeeeeaeeeeeeeeeeeeeeee eeeee 64

United States v. Roselli, 432 F.2d 879,

901 (9th Cir. 1970), cert. den., 401

U.S. 924 (1971) e@eeeeoeeeaeaeaeaeaeaeaeaeaeaeaeaeaeaeaeneaeaenea eee 56

United States v. Ryan, 455 F.2d 728,

Se GEES. BEERS Seudeccwcrededcscccecccece 64

United States v. Schlies, 582 F.2d 1166

Speed Gas 270) Git BONG) iccccccceccccccccce 12,25

United States v. Schlies, 433 U.S. 905

(1977) eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 24,25,26

United States v. Small, 472 F.2d 818, 819

(3rd Sa. 1972) eeeeeeeeeoeeeeeeeeeeeseseseeees 63

United States v. Stevie, 582 F.2d 1175

(8th Cir. 1978) e@eeenenaea eee ee eeaeaeneaeae een eeeae eee 16

United States v. Stevie, 582 F.2d 1175

(8th Cir. 1978) (en banc), cert. den., 47

U.S.L.W. 3825 (June 25, 1979) ........... 16,25,26

United States v. Thomas, 459 F.2d 1172,

1176 (D.C. Cis. 1972) e@eeeseeaeea eee ean eee eee eeee 63

United States v. Tucker, 404 U.S. 443,

447 (1972) @eeeeeoeeeeaeaeaeeaeaeeaneeae eoeaenenee eeeeeeeeee 74,75

United States v. Weber, 437 F.2d 327

(3rd Cir. 1970) @eeeeeeoeeeeaseeaeaeeaeaeeeeeeeeee€ ° 50

United States v. Weiner, 418 F.2d

849, 851 (5th Cie. 1969) eeeee0ee4eeseeaeeseenenaeseneee 76

United States v. Zaicek, 519 F.2d 412

+ fA | Ee Pere ee 36

United States v. Zolli, 51 F.R.D. 522, 526

(E.D.N.Y. 1970) eeeeesneeeeeeeeeeeeeeeee eerste 64

Verdugo v. United States, 402 F.2d 599, 611

(9th Cir.), cert. den. 397 U.S. 925

(1968) @eeeeeeeeeaeeeaea ee eaeene e@eeeeeeeee eeeeese ” 74,76

Wangrow v. United States, 399 F.2d 106, 110

Me SL COC Che. THE cccccccccecocesccocsces 3

Woosley v. United States, 478 F.2d 139

(8th Cs. 1973) eeeeee e@eereeeeeeeeseeeeeeeeee 76

Zurcher v. Stanford Daily, 436 U.S. 547

(1978) e@eeeneeeeeeeee ee eee e@eeeveveeeeeneeoeae enone 20

xiv

PAGE

Statutes Cited:

18 U.S.C. § 894 @eeeeceev ese eeeeeeaeceeeeeeeeeeeeeeee eee 6

ONT TE

SE NE Sek cicvvevesticuccindsessucaeentaeae ae

SI RD sin ivivncsccasdcsarhaas canboedeneanes can”

Ase TE 0: cidsinnco cine sunsnensesncamanin. sia

Oy EE i iieaieeeseenen 8

United States Constitution:

- Fourth Amendment @eeseeeacee@ese eee eee eaeeee eee eae ee eee 3,passin

Fifth Amendment @eeeeeaeaeaeaea ee ee eee eee ee een e@ 61,62,67,68, 76

Rule Cited:

Fed. R. Crim. PLO. 2 ccccccccccccccccccccccccccccces 54

Pee Be Gees PEO. F (CO) csceccceccsecsccccccecece 2,passim

Fed. Ro Crim. Pro. 12 (B)ccccccccccccccccccccccce 49,53,54

POG. Bi CER. FEO. BD ccccccecccesasccescscccccccces 30

Fed. R. Crim. Pro. 52 @eeeeeeeeoeeeeeeeesee ees eeeeee 55,59

CONTENTS

PAGE

Fed. R. Evi. 403 @eeeeeseeoeoeooeoeoeeoeeceeeaeee ee eeeeeeee eee

Fed. R. Evi. 404 @eeeeoeeeaeeceeseeeseeseeeeeeeaeeeeeeee eee

Other Authorities Cited:

Annot., "Construction and Application of

18 U.S.C. § 1503," 20 A.L.R. Fed. 731,

739-40 (1974) @eeeaeeeeoeoeeeeeeeeee eee eee eaeseee ee ee e8

Annot., “Joinder of Offenses Under Rule 8 (a),”

39 A.L.R. Fed. 479, 504-05 (1978) @eeeeseeeae2e02e20e286060

Comment, 38 Ohio St. L.J. 177, 192-193 (1977) eeoeesee 31,34

Comment, 22 Ss. Dak. L. Rev. 142, 157-58 (1977) eoeeee

Craig, J., "Sentencing in Tax Fraud Cases",

24 Tax Lawyer 49 (1970) @eeeeoeeoeoeoeoeoe eee eeeee ee 8

Decker, "Joinder and Severance in Federal Criminal

Cases: An Examination of Judicial Interpretation

of the Rules,"53 Notre Dame Lawyer 147, 163 n.97

(1977) @eeeeeeveee ee eeceoeeeeeeee een eeeeeeee ee eee ee 53,56

Devitt and Blackman, Federal J Practice and

Instructions § 32.03 (West Supp. 1975) .....seeeee

8 Moore's Federal Practice § 8.04[1]; § 14.02[1] ... 52,53

Note, "Harmless Error and Misjoinder Under the

Federal Rules of Criminal Procedure:

A Narrowing Division of Opinion," 6

Hofstra L. Rev. 533 (1978) @eeeeeeaeceoevaeoea eee eee2e280240080

xvi

CONTENTS

PAGE

Note, 60 Marq. L. Rev. 569, 573 (1977) eeeseeeeseeees 31

Note, "Joint and Single Trials Under Rules

8 and 14 of the Federal Rules of

Criminal Procedure," 74 Yale L. Rev. 533,

554 (1965) @eeeeoceacoea eee ee ee ee eee eeeee eee eee eee eee & 53

Wr ight ’

Federal Practice and Procedure

Criminal, § 145 n.6; § 221 eewmeoeeeceeeseeeeoeeeeees $3,357

xvii

TABLE OF CONTENTS

APPENDIX

APPENDIX A

Opinion of the United States Court

of Appeals for the Second Circuit,

United States v. Ochs, 595 F.2d 1247

Ir. ) @eeeeeeeeeeeeeseeoeeaeaeeaee eee seeeee

APPENDIX B

Opinion of the United States District

Court for the Southern District of

New York, United States v. Ochs,

461 F. Supp. -D.N.Y.

) @eeeeeeaee02eeeee00

APPENDIX C

Order of the United States Court of

Appeals for the Second Circuit

APPENDIX D

Order Extending Time Within Which to

File Petition for Certiorari @eeeeeaeeeaeaeeee2ee06

APPENDIX E

United States Constitution,

Amend. IV @eeeeeeocoaoe ee ee eea ee ee eeaeeaeeeee eee eee ee

Federal Rule of Criminal

Procedure 8 (a) @eeeeeeseeeeseeeaeseceeeeeaeaeaeeaeee2eee6e0¢08@

Federal Rule of Criminal

Procedure 12(b) @eeaeeeeaeva@ee e@eeaeseceaees@~see eee eee0eee0e866

PAGE

4la

65a

66a

67a

68a

xviii

CONTENTS

Federal Rule of Criminal

Procedure 14 @eeeeeae@eceea ee eee eee ee eeee eee s eee eee

United States Constitution

Amend. V @eeeeeaeoeae ee ee ee eeeeee eee eae eeaeaea ee eeeneee

18 U.S.C. § 1503 @eeeeeoceoeeeoeaeeeeeeeeeeses eee eee?

26 U.S.C. § 7201 @eeeeaeoeaeaeeeoeeeeeeeeeeeeee eens

26 U.S.C. § 7206 @eeeeeeeoeaeeeeeeeeeeeeeeeeee eee

APPENDIX F

Order of the United States Court of

Appeals for the Second Circuit Directing

a Reply to the Defendant's Motion for

Reconsideration of Denial of Rehearing .......

APPENDIX G

Motion for Severance, Dated January 11,

1978 in United States v. OCHS ..ccccccececcees

PAGE

69a

70a

Tia

71a

72a

74a

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1978 |

No.

GEORGE OCHS,

Petitioner,

--VS.--

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari

issue to review the judgment and opinion of the

United States Court of Appeals for the Second

Circuit entered in this proceeding on March 13,

1979.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Second Circuit is appended to

this petition as Appendix A. It is reported at

United States v. Ochs, 595 F.2d 1247 (2d Cir.

1979). The opinion of the United States District

Court for the Southern District of New York is

appended to this petition as Appendix B. It is

reported at United States v. Ochs, 461 F.Supp. 1

(S.D.N.Y. 1978).

JURISDICTION

The jurisdiction of the Supreme Court to

review the final judgment of the United States

Court of Appeals for the Second Circuit is based

on 28 U.S.C. § 1254(1).

ORDER DENYING PETITION FOR REHEARING

AND ORDER EXTENDING TIME TO FILE

PETITION FOR CERTIORARI

A timely petition for rehearing was filed

with the United States Court of Appeals for the

Second Circuit and denied by order entered on

May 25, 1979. Thereafter, an application was

made to Associate Justice’ Thurgood Marshall seek-

ing an extension of time within which defendant

could timely file the within petition for certiorari.

On June 19, 1979, Justice Marshall entered an order

extending defendant's time to petition this Court

for certiorari until July 24, 1979. The order of

the Second Circuit denying rehearing is appended

to this petition as Appendix C. Justice Marshall's

order extending the period for filing is appended

to this petition as Appendix D.

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS INVOLVED

Petitioner seeks review of issues of law

arising under the Fourth Amendment to the United

States Constitution; under Federal Rules of

Criminal Procedure 8(a), 12(b) and 14; under 18

U.S.C. § 1503; under 26 U.S.C. §§ 7201 and 7206(1);

and under the Fifth Amendment to the United States

Constitution. They are appended to this petition

as Appendix E.

QUESTIONS PRESENTED

1. In light of United States v. Chadwick and

Arkansas v. Sanders, should a warrantless search

of private papers found in a briefcase during

what was characterized by the police as a non-

investigatory automobile inventory be upheld on

the basis of Chambers v. Maroney as an investiga-

tory search?

2. Should defendant's conviction for claim-

ing false dependency exemptions on his income

tax returns be upheld when these charges were

oppressively joined in a single trial with unre-

lated charges of extortion?

3. Should defendant's conviction for ob-

struction of justice be upheld when the trial

court specifically deleted the mens rea element

of "corruptly" under 18 U.S.C. § 1503?

4. Was the defendant's sentence of nine

years for claiming false dependency exemptions on

income tax returns irrational and improperly

motivated where he received lesser sentences for

the more serious offenses of income tax evasion

and extortion?

STATEMENT OF THE CASE

On September 5, 1975, defendant George Ochs

was arrested by New York City police officers

while sitting in a borrowed Cadillac automobile

on a downtown Manhattan street. The arrest was

based upon a B. Altman Department Store detec-

tive's claim that Ochs was associated with a

stolen travelers’ check cashing ring, that the

arresting officers saw a “gravity knife" located

on the front seat of Ochs' car, and that the

arresting officers suspected that the car was

stolen. The arresting officers took Ochs and a

companion to the stationhouse, impounded the

vehicle, and inventoried its contents pursuant

to New York City Police Department standard oper-

ating procedure. After finding two briefcases

on the footwells of the back seat of the car,

the inventorying officers opened the briefcases,

leafed through the notebooks, index cards, and

ledger sheets contained inside, and then read

those materials. The inventory produced no con-

traband, and state charges arising from the

‘arrest were dismissed for failure to prosecute.

The materials found in defendant's briefcase

did produce, however, a federal investigation

which led to a seven count indictment in October

of 1977 for extortion in connection with seeking

repayment of a particular loan in violation of

18 U.S.C. 8 894; for obstruction of justice in

attempting to influence witnesses subpoenaed to |

testify before the grand jury in violation of 18 |

U.S.C. § 1503; for failure to file an income tax

return for 1974 in violation of 26 U.S.C. 8 7203;

and for evasion of income tax for the same year

in violation of 26 U.S.C. § 7201. Three addi-

tional counts unrelated to the above but prompted |

by the investigation of defendant were joined in |

the extortion indictment for defendant's false

claiming of a wife and several children in his

income tax returns for the years 1971, 1972, and

1973 in violation of 26 U.S.C. $8 7206(1).

After a three week trial slowed by the death

of defense counsel's father shortly after the

trial began, defendant was convicted on all counts

and sentenced to an aggregate term of 23 years

imprisonment, nine of which were imposed for the

false dependency convictions, two for income tax

evasion, five for obstruction of justice, and

seven for the alleged extortion.

Defendant raised numerous issues on appeal,

most of which were dealt with by the extensive

opinion of the Second Circuit. The appeal and

circuit court opinion focused primarily on the

defendant's claim that, absent a warrant, his

private papers should not have been examined after

his briefcase was safely in police custody fol low-

ing the impoundment of the vehicle in which he

was arrested. The district court had upheld the

search on the basis that the police were conduct-

ing a lawful inventory when they opened, leafed

through, and then read the papers in defendant's

briefcase. The circuit court cast aside that

justification and without soliciting briefs or

hearing argument on the point from either side,

upheld the search as investigative but properly

allowed without warrant under the authority of

Chambers v. Maroney. United States v. Chadwick

was distinguished as a non-automobile case by the

panel majority while a concurring opinion of Judge

Meskill relied upon the Second Circuit's previous

conclusion that Chadwick should not be given

retroactive effect. (See United States v. Reda,

563 F.2d 510 (2d Cir. 1977).)

After the circuit court decided the case on

grounds so foreign to those relied upon by the

police and briefed and argued by the parties,

defendant unsuccessfully petitioned for rehearing

arguing that the court nisoercetved the effect of

Chadwick on Chambers; misapplied relevant Fourth

Amendment principles by upholding the search on

grounds denied by the officers; and that the

defendant should be accorded at least an oppor-

tunity to brief and argue the Chambers issue and

at best an opportunity to develop an adequate

record on the Chambers issue by a remand to the

trial court.

The recent decision of this Court in Arkansas

v. Sanders, U.S. (June 20, 1979) appears

to undermine the circuit court opinion below and

require at the very least reconsideration in

light of that decision. A motion seeking recon-

sideration in light of Sanders was filed by the

defendant with the Second Circuit prior to the

filing of this petition for certiorari and enter-

tained by the circuit court but ultimately denied.

In addition to the claim that his private

papers and effects were unconstitutionally in-

vaded by the state police and that this evidence

should not have been admitted in the trial below,

defendant has selected three other important

questions of law which he seeks review of in this

petition for certiorari. These issues arise from

the failure of the trial court to sever the false

dependency income tax counts from the totally

*The Second Circuit, per Judge Friendly, di-

rected the Government to reply to the defendant's

motion for reconsideration of the denial of his

petition for rehearing on July 2, 1979. The Gov-

ernment filed its reply on July 9, 1979 and the

defendant's motion was ultimately denied without

hearing or further briefing on July 20, 1979. A

copy of Judge Friendly's order of July 2, 1979 is

appended hereto as Appendix F to this petition.

unrelated extortion charge; the mis-instruction

in the trial court's obstruction of justice charge

which effectively deleted the mens rea of "cor-

ruptly"; and the irrational and improperly moti-

vated sentence of nine years for the false depen-

dency income tax violations when two years were

meted out for the evasion itself and seven years

for extortion. Defendant maintains that the sen-

tence is internally irrational and improperly

structured so that, if the seizure of the papers

was upset on appeal, a substantial sentence for

an offense rarely receiving a custodial disposi-

tion and certainly never receiving such a substan-

tial punishment would be left intact.

The relevant details of these issues are de-

veloped within the arguments contained in the rea-

sons for granting certiorari in this case.

REASONS FOR GRANTING THE WRIT

POINT 1

CERTIORARI SHOULD BE GRANTED AND THE CASE

SHOULD BE REMANDED TO THE CIRCUIT COURT

SO THAT IT MAY BE ADJUDICATED IN CONFOR-

MITY WITH THIS COURT'S DECISIONS IN

ARKANSAS v. SANDERS and UNITED STATES

Vv. CHADWICK.

Despite the state police's persistent justi-

fication of their actions as an automobile inven-

tory before the district court, the circuit court

balked at deciding the case "under the more limited

principles of [SouthDakota v.] Opperman, 428 U.S.

364 (1976)." Ochs, supra, 595 F.2d at 1255. In-

stead, the circuit court found that the police had

probable cause to search the vehicle, substituting

Chambers v. Maroney, 399 U.S. 42 (1970) for Opper-

man, permitting the search to occur at the station-

house. Anticipating the defendant's arguments in

his petition for rehearing, the circuit court dis-

tinguished United States v. Chadwick, 433 U.S. 1.

(1977) by holding that it does "not affect the

viability of Chambers on facts such as these."

Ochs, 595 F.2d at 1254. Four weeks after defen-

dant's petition for rehearing was denied, this

Court decided Arkansas v. Sanders, 47 U.S.L.W.

4783 (June 20, 1979), in order to "resolve some

apparent misunderstanding as to the application of

United States v. Chadwick . . . to warrantless

searches of luggage seized from automobiles." Id.

at 4784. In uirect contradiction of the circuit

court opinion herein, this Court held in Sanders

that "as a general rule there is no greater need

for warrantless searches of luggage taken from

automobiles than of luggage taken from other places."

47 U.S.L.W. at 4786.*

Having declined to extend the Chambers excep-

tion to the warrant requirement to include luggage,

this Court applied traditional Fourth Amendment

doctrine in both Chadwick and Sanders to condemn

warrantless searches of luggage in the absence of

* ;

While Sanders involved a suitcase, and Chad-

wick a: footlocker, defendant's briefcases undoubt-

edly fall within the category of luggage, since

they, as a common place to keep business papers

and the like, are no less a "repository for per-

sonal, private effects." Sanders, supra, 49 U.S.L.W.

4783, 4786 n.9. Cf. United States v. Schlies, 582

F.2d 1166, 1170 (8th Cir. 1978) (en banc).

a genuine exigency. The present case admits the

same lack of exigent circumstances to justify the

warrantless search of defendant's briefcase.

The police had arrested the defendant and had

placed him in a cell. They then impounded the

vehicle and inventoried its contents. Upon find-

ing the briefcases, they brought them into the

stationhouse. Rather than either applying for a

warrant or sealing and securing the briefcases,

they opened them, and "first leafed through the

papers" looking for contraband, and "then,. . .

read some of the papers. . . ." Ochs, supra, 595

F.2d at 1252. As in Chadwick, the defendant had

no access to the searched items at the time of the

search, and the search was conducted well after the

initial seizure. As in Sanders, the defendant was

detained and the briefcases secured. Indeed, the

police conduct in opening the briefcases, then

leafing through the contents in a search for contra-

band, and finally reading the papers, hardly be-

speaks exigent circumstances.

Since the circuit court opinion misapplied

this Court's principles as enunciated in Chadwick

and was rendered without the benefit of Sanders,

certiorari should be granted and the matter re-

manded to the circuit court with directions to

apply the traditional and well-considered exigency

° *

analysis of those cases.

Subpoitnt A

Chadwick and Sanders condemn as

constitutionally unreasonable war-

rantless searches of suitcases once

safely in police custody in the

absence of exigent circumstances.

The rationale of these cases is

fully applicable to the instant

case involving closed briefcases

containing private papers.

United States v. Chadwick, 433 U.S. 1 (1977)

articulated under what conditions the police, having

“This was the action taken shortly after Sanders

was decided when this court remanded for further

consideration in light of Sanders, Robbins v. Cali-

fornia, Cal. Rptr. 2d (Calif. Ct. App.

(refusing to apply Chadwick to automobile lug-

gage), 47 U.S.L.W. 3825 (June 25, 1979). Alterna-

tively, the Court may wish to grant certiorari and

retain the case to decide the inventory/suitcase

issue left urmresolved by the circuit court's impru-

dent focus upon Chambers to resolve an overbroad

Opperman inventory. See Point II infra.

probable cause to search a piece of luggage, can

do so without a warrant. This Court's analysis was

twofold. First, it rejected the Government's

novel argument that luggage, like automobiles, were

subject to the mobility exigency of Chambers, supra,

and Carroll v. United States, 267 U.S. 132 (1925).

Luggage was held to have a greater privacy interest

since it is not subject to Government regulation

and commonly served as a repository of personal

effects rather than an instrument for transporta-

tion, 433 U.S. at 13. Furthermore, luggage was

held to be sufficiently less mobile so that all

danger of losing evidence before a warrant could be

obtained is gone once the police have seized the

luggage and reduced it to their exclusive control.

433 U.S. at 13. Second, having declined to embrace

a general "mobility exception," this Court applied

traditional Fourth Amendment doctrine concerning

exigencies and found it lacking once the luggage

was reduced to police control. 433 U.S. at 14-16.

The Government, unhappy with the result in

Chadwick, has with varying success attempted to

limit Chadwick's analysis by distinguishing luggage

wick does not effect a Chambers search of luggage

if taken from an automobile. Compare United States

found in automobile searches and arguing that Chad-

governs) with United States v. Stevie, 582 F.2d

1175 (8th Cir. 1978) (en banc) (Chadwick governs).

This Court then decided Arkansas v. Sanders, supra,

to resolve the dispute and again reaffirmed its

rejection of broad exigency analysis when applied

to luggage.

Sanders explains Chadwick by demonstrating

that the source of the searched luggage is irrele-

vant to the legality of the search. Of course,

the mobility rationale for an immediate search is

removed once the suitcase is taken from the car

and reduced to exclusive police possession. The

only rationale then left for treating luggage taken

from a.car differently from luggage taken from

elsewhere is that luggage loses its expectation of

privacy once placed in the car. But, as Sanders

points out:

v. Finnegan, 568 F.2d 637 (9th Cir. 1977) (Chambers

. . a suitcase taken from an automo-

bile stopped on the highway is not

necessarily attended by any lesser

expectation of privacy that is asso-

ciated with luggage taken from other

locations. One is not less inclined

to place private, personal possessions

in a suitcase merely because the suit-

case is to be carried in an automo-

bile rather than transported by other

means or temporarily checked or stored.

Indeed, the very purpose of a suit-

case is to serve as a repository for

personal items when one wishes to

transport them.

47 U.S.L.W. 4783, 4786.

Since Sanders clearly indicates that seized

luggage reduced to police custody does not fall

within the so-called “automobile exception" to the

warrant requirement, a warrantless search of lug-

gage even from an automobile can only be justified

by exigent circumstances. Chadwick, supra;

Sanders, supra, 47 U.S.L.W. at 4787. In Chadwick,

exigent circumstances were absent since the police

had seized the item searched one and one-half hours

before the search and had removed it from the vi-

cinity of the arrestee to the Boston Federal build-

ing. In Sanders, the court stated that exigent

circumstances were required, and that:

Where . . . the police, without endan-

gering themselves or risking loss of

evidence, lawfully have detained one

suspected of criminal activity and

secured his suitcase, they should

delay the search thereof until after

individual judicial —_" has

been obtained.

Although probable cause to search the defen-

dant's automobile or briefcases was never liti-

gated at the suppression hearing (see Point II,

Subpoint B, infra), that issue need not be reached

here, since, even if the police had probable cause,

they lacked the necessary exigent circumstances

justifying the warrantless search of the brief-

cases. The briefcases were not found until the

defendant had been locked in a cell and the car

had been impounded and inventoried. Indeed, the

stationhouse search of the briefcases is identical

to the Chadwick footlocker search at the Boston

Federal building. Certainly, the police were less

threatened with immediate harm or loss of evidence

than in Sanders, where the illegal search was con-

ducted on the street. 47 U.S.L.W. at 4784.

The circuit court opinion below suggested two

circumstances which, in addition to the automobile,

would further distinguish defendant's case from

Chadwick. Ochs, supra, 575 F.2d at 1255. First,

it noted that defendant's briefcases were not

locked. The Sanders court found that this circum-

stance had no effect on the luggage's "fundamental

character as a repository for personal, private

effects." 47 U.S.L.W. 4783 at 4786 n.9. Second,

the circuit court found that the possibility that

the owner [the person from whom defendant had bor-

rowed the car] might arrive at the station and

demand the return of his car constituted an exi-

gent circumstance. This contention ignored the

state's greater possessory interest in the items

as evidence of a crime, an interest which would

undoubtedly have allowed the police to retain the

items until a warrant was obtained. Cf. Mincey v

Arizona, 437 U.S. 385 (1978), where this Court

rejected a murder scene exception to the warrant

requirement but implicitly acknowledged the State's

right to seize and secure the premises until a

RNC EID

search warrant could be sought and issued. Id. at

394; Zurcher v. Stanford Daily, 436 U.S. 547

(1978), where this Court upheld the use of a war-

rant to seize items in the possession of a third

party not suspected of criminal activity.” Also,

the circuit court's reliance on the Chambers lan-

guage equating the privacy intrusions of a car

search and a car seizure, 595 F.2d at 1254, is

misplaced since, as discussed above, the interior

of luggage has a greater expectation of privacy

than does the interior of a car, Sanders, supra,

47 U.S.L.W. 4783, 4787 n.14, and since the Chambers

equation of seizure with search of cars has been

explained as limited to accommodating the police

in dealing with vehicles which present more ser-

ious problems of safekeeping than luggage. Id.

The police never suggested, nor could the

facts have warranted, any concern about the safe-

“Lowe v. Caldwell, 367 F. Supp. 46, 53 n.11

(S.D. Ga. 1973), cited by the circuit court, con-

cerns only police convenience and has no bearing

on the police right to seize and hold as evidence

belongings of third parties.

eh nln AAT E EE 0 6 be RR Rake BE OR pate

keeping of the briefcases until a warrant could be

sought. There was no suspicion that a bomb or ex-

plosive was in the briefcase or that the evidence

sought would disintegrate or otherwise disappear

if an immediate search was not conducted. Even

after the officers opened the briefcases and found

records therein, they continued a second-level

search by carefully reading through all of the

papers rather than sealing the cases and asking

leave of a disinterested magistrate for constitu-

tional authority to do so. Accordingly, with no

genuine exigency to excuse the failure to obtain

a warrant, the warrantless search of the private

papers in defendant's briefcases is a classic

violation of defendant's constitutionally pro-

tected right of privacy in those papers.

22 23

Subpoint B | courts which had misunderstood the exigency ration-

Chatwick and Sanders constitute a | ale of cases such as Carroll and Chambers.

traditional application of exigenc |

analysis under settled Fourth oe Both Chadwick and Sanders rejected novel

ment doctrine. Th | i a

e failure of the

Court to extend a Carroll or Chambers | Fourth Amendment principles arqued by the Govern-

warrantless search to uggage whic |

has been safe uced to police ment and applied traditional exigency analyses;

Custody thus presents no retroactivity

issue. hence, neither case presents any issue of retro-

Judge Meskill in his concurring opinion thought activity under United States v. Peltier, 422 U.S.

that Chadwick might well require suppression of the 531 (1975). In Chadwick, the Government attempted

evidence and chose to rely upon the Second Circuit's to develop a general "mobility" exception to the

conclusion that the teaching of Chadwick was not warrant requirement so as to include luggage.

retroactively applicable to the search in the in- That endeavor being frustrated, in Sanders it

stant case. 595 F.2d at 1263-64. At that time tried to permit movable luggage to be searched

several circuit courts had so ruled but this Court because it was removed from a vehicle, thus in-

applied the analysis of Chadwick to pre-Chadwick voking the so-called “automobile exception" it

facts in Sanders without even mentioning the doc- had failed to invoke in Chadwick since the foot-

trine of retroactivity. This Court's failure to locker had only been momentarily placed in the

discuss retroactivity in Sanders is easily explic- vehicle's trunk in that case. After rejecting

able: in rejecting the Government's effort in Such novel and tenuous arguments, this Court did

Chadwick to expand the exigency exception to the not reduce the boundaries of reasonableness

warrant requirement, the Court had not announced | within which the police operate, but merely ap-

any "new" doctrine--no matter how disappointing plied the wisdom of its precedents to the cases

the rules re-affirmed might have been to police or at hand.

In rejecting the application of the

exception to movable luggage, the Chadwick court

recognized that ". . . in this area, we do not

write on a clean slate." 433 U.S. at 9. It then

based its decision that luggage possessed the full

protection of the warrant requirement on a line of

search and seizure cases starting with Ex parte

Jackson, 96 U.S. 727 (1878) and leading to Preston

v. United States, 376 U.S. 364 (1964). Chadwick,

supra, 433 U.S. at 14-16. In Sanders, this Court

similarly recognized that no new Fourth Amendment

protection was being created when it stated that

"Twle . . . find no justification for the exten-

sion of Carroll and its progeny to the warrantless

search of ha’ eapeokat luggage merely because

it was located in an automobile lawfully stopped

by the police." 47 U.S.L.W. at 4787.

This Court has so far treated summarily cases

sent to it for review that are inconsistent with

Chadwick and Sanders. Thus, in United States v.

Schlies, 433 U.S. 905 (1977), an Eighth Circuit

case involving pre-Chadwick facts was remanded for

reconsideration in light of Chadwick. Shortly

after Sanders this Court vacated and remanded

another pre-Chadwick case for reconsideration in

light of Sanders. Robbins v. California, 47 U.S.L.W.

3825 (June 25, 1979). Had this Court thought im-

portant retroactivity questions were raised by

either Chadwick or Sanders, it would have been

easy to instead have granted certiorari in Schlies

or Robbins. Instead, on the same day it remanded

Robbins this Court denied review in United States

v. Stevie, 582 F.2d 1175 (8th Cir. 1978) (en banc),

cert. denied, 47 U.S.L.W. 3825 (June 25, 1979)

where the Eighth Circuit, sitting en banc, had

applied Chadwick to pre-Chadwick facts following

this Court's remand order in Schltes, supra. In

schlies, the Eighth Circuit after the remand from

this Court for further consideration in light of

Chadwick vacated a panel decision and suppressed a

warrantless search on Chadwick grounds by conclud-

ing that no retroactivity question was properly

presented and that the panel opinion had misapplied

prior doctrine of this Court:

‘This case does not present a question

of retroactivity. . . . Chadwick an-

nounces no new constitutional doctrine,

nor does it broaden any existing ex-

clusionary rule. All| the Court did

was to hold that warrantless searches

of luggage absent an exigency are an

invasion of a "legitimate privacy

interest" and cannot be justified

under any of the long established ex-

ceptions to the Fourth Amendment war-

rant requirement.

582 F.2d 1166, 1174 (8th Cir. 1978) (en banc).

See also United States v. Diggs, 569 F.2d 1264

(3d Cir. 1977), applying Chadwick to pre-Chadwick

facts without mention of any retroactivity problem;

and United States v. Ester, 442 F. Supp. 736 (S.D.

N.Y. 1977).

Before this Court's dispositions in Schlies,

Sanders, and Robbins, four circuit courts had held

Chadwick non-retroactive. Reda, supra; United

States v. Choate, 576 F.2d 165, 182 n.20 (9th Cir.),

cert. den., U.S. (1978); United States

v. Berry, 571 F.2d 2 (7th Cir. 1978); United States

v. Montgomery, 558 F.2d 311 (5th Cir. 1977). Their

decisions were based on a finding under Peltier,

supra, of good faith reliance on judicial precedent.

ee —

However, no precedent of this Court supports the

extension of Chambers so far as to include the

search of luggage safely removed from a vehicle

and reduced to police control. Furthermore, the

judicial consensus found by the circuit courts

nowhere approaches that upon which this Court

based its decision in Peltier. 422 U.S. 540-41

nn.8-11. Indeed, the state of the law was at best

controversial since this Court's opinion in Chad-

wick itself affirmed both the district court and

the circuit court. United States v. Chadwick,

393 F. Supp. 763 (D. Mass. 1975), aff'd, 532 F.2d

773 (Ist Cir. 1976), aff'd, 433 U.S. 1 (1977).

In light of their decision prior to this Court's

recent dispositions of cases presenting factual

Situations similar to Chadwick, and considering °

this Court's heavy reliance on its precedents to

resolve the controversy raised by Chadwick as ap-

plied to the Sanders automobile context, the cir-

cuit court opinions relying on Peltier to limit

Chadwick's applicability must be regarded as

wrongly decided. *

Certiorari should be granted and this case

remanded so that the principles re-affirmed in

Chadwick and Sanders can be fully applied to the

case at hand. Alternatively, certiorari should

be granted so this Court can resolve all doubts

about the application of the long-standing prin-

ciples relied upon in Chadwick and Sanders to

cases involving pre-Chadwick facts.

' This Court's recent decision in Michigan v.

DeFillippo, 47 U.S.L.W. 4805 (June 5, T9579), refus-

ing to apply the exclusionary rule to evidence

obtained during a "good faith" arrest made under

a statute later declared unconstitutional, should

not affect the analysis here. Statutes are funda-

mentally different from lower court opinions.

Statutes represent an act of a coordinate branch

of Government presumptively entitled to constitu-

tional validity; they are uniform throughout the

jurisdiction and their knowledge by the police

can be reasonably presumed. Lower federal court

opinions often conflict and represent the litiga-

tional process by which constitutional rules are

ultimately fashioned by this Court; and since they

are diverse and not as well published, the police

cannot easily familiarize themselves with them

or resolve the conflicts between them.

POINT II

CERTIORARI SHOULD BE GRANTED SO THAT

RESTRICTIONS MAY BE ARTICULATED BY THIS

COURT TO PROTECT PRIVATE PAPERS AND

EFFECTS FROM UNREASONABLE SEARCHES AND

SEIZURES WHEN BRIEFCASES OR LUGGAGE IS

FOUND IN AN IMPOUNDED VEHICLE.

At the suppression hearing, the police per-

sistently justified their conduct in opening the

defendant's briefcases and reading their contents

as part of an automobile inventory conducted pur-

suant to standard New York Police Department

operating procedure. The trial court originally

upheld the briefcase search as an inventory in its

memorandum decision, and then, in its full opinion,

justified it as incident to an arrest once the

briefcases were found pursuant to the car inven-

tory. On appeal, the parties briefed and argued

only the inventory justification. The circuit

court similarly deviated from the justification

offered by the police and upheld the search as

within the authority of Chambers. Not only did

the circuit court fail to apply the appropriate

constitutional doctrine in its Chambers analysis,

Point I supra, but it also erroneously changed the

justification for the search. As such, the inven-

tory rationale stands as the sole basis for uphold-

ing the search. Certiorari should be granted so

that this Court can resolve conflict among the

circuit and State courts whether an automobile

inventory's scope includes opening latched brief-

cases and reading the papers contained therein.

Subpoint A

Briefcases or luggage found in a

vehicle which has been impounded

Should not be opened absent danger

to the police and the private papers

contained therein snould never

read pursuant to an inventory.

New York City police officers conducted a

warrantless search of the defendant's briefcases

under the guise that it was merely part of an

inventory of defendant's car and its contents.

Inventory searches were most recently examined by

this Court in South Dakota v. Opperman, 428 U.S.

364 (1976). In Opperman, the contents of an auto-

mobile were inventoried according to standard

police procedure in order to (1) protect the

arrestee from loss of valuables; (2) protect the

police from claims of loss by arrestee; and

(3) protect the police from any potential danger

posed by the automobile's contents. Id. at 369;

note, 60 Marq. L. Rev. 569, 573 (1977). In en-

dorsing a "protective inventory" this Court was

careful to limit its holding to “automobiles im-

pounded or otherwise in lawful police custody

where the process is aimed at securing or pro-

tecting the car and its contents (emphasis added)."

428 U.S. at 373. Pursuant to this cautionary

note, the Court held that for an inventory to be

lawful it could not be "a pretext concealing an

investigatory police motive." Id. at 376, 60 |

Marq. L. Rev. at 578, Comment, 38 Ohio St. L.J. 177,

192-193 (1977). In a concurring opinion, Justice

Powell, the majority's fifth vote, clarified the

law of the Fourth Amendment with respect to inven-

tory searches saying, "upholding searches of this

type provides no general license for the police to

examine all the contents of such automobiles." 428

U.S. at 380. Justice Powell went on to note:

fad

As part of their inventory search

the police may discover materials such

as letters or checkbooks that “touch

upon intimate areas of an individual's

personal affairs," and "reveal much

about a person's activities, associa-

tions, and beliefs." In this case the

police found, inter alia, "miscellan-

eous papers," a checkbook, an install-

ment loan book, and a social security

status card. Record 77. There is,

- however, no evidence in the record

that in carrying out their established

inventory duties the Vermillion police

do other than search for and remove

for storage such property without

examining its contents. (emphasis

added).

Id. at n.7 (citations omitted). Justice Marshall,

dissenting, further stated:

Mr. Justice Powell observes that

the police would not be justified

in sifting through papers secured

under the procedure employed here.

T agree with this, and | note that

the Court's opinion does not

authorize the inspection of suit-

cases, boxes or other containers

which might themselves be sealed

removed and secured without fur-

ther intrusion. (Citations omitted;

emphasis supplied. )

Id. at 389, n.6.

This Court's recent decision in Sanders

fully supports the position taken by Justices

Powell and Marshall. Sanders not only recognizes

Oe ee a ee ee

a greater expectation of privacy in luggage as a

“repository for personal effects," 47 U.S.L.W. at

4784 n.3, but it also recognizes that this Court's

decisions to date have only permitted the warrant-

less intrusions into "some integral part of the

automobile." 47 U.S.L.W. at 4786, citing Opperman,

Supra, 428 U.S. at 366 (glove compartment); Texas

v. White, 423 U.S. 67, 68 (1975) (passenger com-

partment); Cady v. Dombrowski, 413 U.S. 433, 437

(1973) (trunk); Chambers, supra, 399 U.S. at 44.

(concealed compartment under the dashboard);

Carroll, supra, 267 U.S. at 136 (behind the uphol-

stery of the seats).

Sanders, furthermore, recognizes that a con-

Stitutional requirement requiring police to seize

and hold vehicles pending a warrant has not been

established because not all police departments

throughout the country are equipped with the re-

sources necessary to impound automobiles until a

warrant is obtained. 47 U.S.L.W. at 4787 n.14.

However, even small police departments are not

likely to suffer a similar burden in securing

luggage. Id. Indeed, the better practice should

be for the police, when finding items such as brief-

cases, to mark and seal them, and put them in

storage without further intrusive examination.

Opperman, 428 U.S. at 380 n.7, 389 n.6; Comment,

22 S. Dak. L. Rev. 142, 157-58 (1977).

The facts here unmistakenly indicate that the

police did not limit their search of defendant's

car, briefcases and personal papers to the pro-

tective goals of an inventory as recognized in

Opperman. This is not to suggest that the regu-

lations of the New York City Police Department

concerning the inventory of automobiles are un-

constitutional. Defendant concedes the validity

of any police regulations governing the inventory-

ing of automobiles as long as they are reasonably

limited to the protective purposes endorsed in

Opperman. But a police inventory procedure must

be narrowly limited to protectively securing the

items inventoried and not broadly directed at

gathering incriminatory evidence. 428 U.S. at

373; 38 Ohio St. L.J., supra, at 201. By opening

briefcases which could have been guarded while a

warrant was obtained, and, a fortiori, could have

been guarded while a claim of ownership was asserted,

the police here did not confine themselves to the

protective purposes of a true inventory.

Although the inventory rationale as articu-

lated in Opperman would appear clearly to limit

its scope so as to protect the privacy interests

found in briefcases and other pieces of luggage,

the Federal and State courts have split on this

issue. Some restrict the scope of the inventory,

e.g., United States v. Edwards, 577 F.2d 883,

894-95 (8th Cir. 1978) (car trunk and panel box

can be searched but car cannot be torn apart);

United States v. Chadwick, supra, 393 F. Supp. at

776-77 (police need not break into a locked foot-

locker to protect selves against property claims);

People v. Denman, 19 Cal. App. 3d 632, 97 Cal.

Rptr. 23 (1971) and Mozzetti v. Superior Court,

4 Cal.3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971)

(closed luggage beyond scope of car inventory);

People v. Sullivan, 292°N.Y.S.2d 37, 57 Misc.2d 208

(1968) (car inventory does not include opening

briefcase and finding handgun therein); People v.

Gravia, 527 P.2d 543, 185 Colo. 128 (1974) (opening

zippered flight bag found in car trunk beyond inven-

tory scope); State v. Parker, 380 A.2d 291, 153 N.J.

Super. 481 (1971) (zippered satchel found in trunk

beyond scope of car inventory); People v. Hamilton,

371 N.E.2d 1234, 56 I11. App. 3d 196, 14 I11. Dec.

181 (1978) (opening locked attache case beyond scope

of car inventory); State v. Gwinn, 301 A.2d 291

(Del. 1972) (searching closed satchel beyond scope

of car inventory). Others have been more permissive.

United States v. McCambridge, 551 F.2d 865 (Ist Cir.

1977) (stolen suitcase can be opened without a war-

rant); United States v. Zaicek, 519 F.2d 412 (2d

Cir. 1965) (attache case taken from stolen car can

be opened without a warrant); United States v.Gravitt,

484 F.2d 375, 378 (5th Cir. 1973), cert. den., 414

U.S. 1135 (1974) (reasonable for police to search

any container coming into their possession); United

States v, Giles, 536 F.2d 136, 140 (6th Cir. 1976)

(automobile inventory encompasses search of luggage

taken from trunk); State v. Walker, 579 P.2d 1091,

1098, 119 Ariz. 121 (1978) (closed suitcase within

scope of automobile inventory; Chadwick inapplicable).

Judge Friendly observed in the majority opin- |

ion below that "the question whether Opperman per-

mits inspection of sealable containers as an inci-

dent to an inventory is an open and serious one."

595 F.2d at 1256. Given the state of post-Opperman

law on the reach of an inventory as it pertains to

briefcases and other sealable containers, certiorari

should be granted so that the privacy interest pro-

tected by this Court's recent pronouncements in

Chadwick and Sanders can be applied as well in the

inventory context.

Subpoint B

Where the police purport to conduct

a routine inventory of an impounded

vehicle and their conduct becomes

unreasonably investigatory, the 11-

legal impoundment should not be jus-

on the basis o a e

olice could have done had their

motivations and analysis of the

situation been different.

At the suppression hearing, the police not

only made clear that their only intention behind

their actions was to conduct an inventory by assert-

ing it on five different occasions, (1TM” 17.5 to

21.3; 2TM” 35.3-5; 40.14-16; 42.22 to 43.5; 65.3 to

66.12), but they also explicitly eschewed having

any investigatory intent (2TM 42.22-23). Given

such a strong statement of the searching officers’

intent, the switch of justifications for the police

actions make the case at hand identical to Jones v.

United States, 357 U.S. 493 (1960). There, the

police improperly executed a daytime search warrant

by a forceful nighttime entry to search a house.

After that search was held bad, the Government

argued on appeal that the search could be held

valid as incident to a lawful arrest. It theorized

that the police had the authority to enter the

dwelling in order to arrest the defendant upon

probable cause that he had committed a felony, and

that once having entered the house upon this jus-

*1™ refers to the transcript of the suppres-

sion hearing proceedings on December 13, 1977.

**2™ refers to the transcript of the suppres-

sion hearing proceedings on December 20, 1977.

tification they could then have seized all contra-

band within plain view. The Government argued fur-

ther that upon the record a "rational" inference

arose that the police entered the house with the

purpose of arresting the defendant. In rejecting

this post facto theoretical justification of the

search, this Court found that:

The testimony of the federal officers

makes clear = ond dispute that their

urpose in entering was to search for

$1 ing equipment, and not to

arrest petitioner.

352 U.S. at 500 (emphasis added). This Court thus

did not consider the Government's alternative theory

since it was unsupported by the record.

In the present case, the police said they were

conducting a mere inventory. Instead of relying

upon the police motive and without the Government

even urging it, the circuit court sua sponte analyzed

the case upon the grounds disavowed by the officers,

i.e., that they were conducting an investigatory

search of the car and its contents, especially the

briefcases. In comparison to this Court's finding

in Jones as regards the arrest theory, it is even

less rational to infer that the police were conduct-

ing an investigation, since they denied doing so.

The circuit court resolved this change of theory by

simply stating without authority:

It is of no importance that the police

may have thought that their only

power was to make an inventory; the

test is what could be lawfully done,

not what the policemen thought the

source of their power to be.

595 F.2d at 1256 (emphasis added). The record in

this case indicates that the police made no mistake

as to their power but rather consciously pursued

their power by resorting to a non-search process

called an inventory.

The great disparity between an inventory and

an investigatory-Chambers car search renders the

circuit court's position here even more untenable

- than the Government's position in Jones. While

probable cause to arrest and to search might be

based upon some of the same facts, and while war-

resited- searches and plain view searches both have

as their objects instrumentalities or fruits of

crime, the differences between an inventory and an

investigation are manifold. First, an inventory is

based upon the protection of an item in police cus-

tody, while an investigation is based upon the sus-

picion that the evidence of: a crime is located at a

certain spot. Opperman, supra, 428 U.S. at 369.

An inventory is consequently a per se reasonable

intrusion into privacy, id. at 373, while an inves-

tigation must be justified by a finding of probable

cause passed upon by a magistrate. These differ-

ences in rationales and purposes lead to the addi-

tional important difference in scope. In conduct-

ing an inventory, the police may do only what is

necessary to protect the owner against pilfering

and themselves against property claims, or, if

unusual circumstances warrant, to find a dangerous

instrumentality such as a bomb. Opperman, supra,

428 U.S. at 364; Cady v. Dombrowski, 413 U.S. 433,

443 (1973) (inventories must be conducted pursuant

to standard police operating procedure to guard

against unconstitutional scope). The scope of an

investigation, on the other hand, depends upon the

object of the search. Hence, a search for a large

item, such as a stolen car, would justify a lesser

intrusion then a search for a small item, such as a

stolen coin.

Such a clear difference between routine inven-

tories and exigent searches, even though both may

be accomplished without a warrant, brings the pres-

ent case into the proscription this Court, per Mr.

Justice Holmes, first laid down in Silverthorne

Lumber Co. v. United States, 251 U.S. 385, 392 (1920):

. . rights . . . against unlawful

search and seizure are to be protected

even if the same result might have

been achieved in a lawful way.

Accord: Mancusi v. DeForte, 392 U.S. 364, 372 n.12

(1968). While the police, had they in fact con-

ducted a Chambers car search, could possibly have

been justified in so doing (until they located and

removed the briefcases which then required a warrant

to be opened), a suspect inventory cannot be upheld

as a procedure disavowed by the police.

Focus on the policemen's purposes and the pro-

cedure followed is wholly consonant with Fourth

Amendment doctrine enunciated by this Court, If the

exclusionary rule is to effectuate deterrence of

illegal police conduct, as this Court has so heavily

emphasized, Michigan v. De Fillippo, 47 U.S.L.W.

4805, 4807 n.3 (June 25, 1979), the court sanctions.

must be imposed based upon the actions of the police.

To do so creates a clear cause and effect relation-

ship between the wrongful act and the exclusion of

evidence. On the other hand, to judicially cure

unconstitutional acts by post facto analysis removes

from the police consideration the constitutional

limitations supposedly governing their acts.

In addressing this novel issue of law, the

New Jersey Supreme Court recently said:

The purpose of the exclusionary rule

"is to deter--to compel respect for

the constitutional guaranty...

--by effectively removing the incen-

tive to disregard it." ... if in “

the present case the police were

intending only a safekeeping im-

poundment of the Ercolano vehicle...

the rationale of deterrence...

compels exclusion of the evidence

here seized. Saving the validity

of the police action on a court-

devised theory of justification

would not deter future unconstitu-

tional impoundments of vehicles or

investigatory entries into vehicles

without lawful warrant.

State v. Ercolano, 79 N.J. 25, 38, 397 A.2d 1062(1979).

The few well-defined exceptions giving the police

"familiar standards" by which to fulfill their duties,

Dunaway v. New York, 47 U.S.L.W. 4635, 4639 (June 5,

1979), could openly be ignored by the police.

Permitting after the fact judicial reconstruc-

tion of events also excuses the police from their

burden of justifying warrantless searches. It is

axiomatic that warrantless searches are per se un-

reasonable and that the police must come forward

and justify them. McDonald v. United States, 335

U.S. 441, 445 (1948). To permit the basis of jus-

tification to be so drastically changed creates an

inquisitorial system where the police merely present

facts and the defendant is at the mercy of whatever

justification the court chooses.

Finally, it was manifestly unfair to affirm

the conviction on grounds not presented to the Court

either at the suppression hearing or on appeal. Not

only was the defendant denied an opportunity to be

heard, but the suppression hearing record was inade-

quate to support probable cause to search. The

circuit court should have at least given the defen-

dant an opportunity to address the grounds for deci-

sion, and at best have remanded for an evidentiary

hearing.

Accordingly, even if the Court were of the

opinion that an investigatory search upon probable

cause without warrant could lawfully have been

undertaken in this case, the failure of the police

to assert an investigatory purpose should bar a

court from inventing it for them. Certiorari should

be granted on this aspect of the case so that the

Court can harmonize the exclusionary rule's opera-

tion and efficacy by relating the legality of the

police conduct to their stated purposes and not to

their hypothetical authority. The analysis of the

circuit court below if left intact by this Court

will seriously undermine the effective operation of

the exclusionary rule.

POINT ITI

CERTIORARI SHOULD BE GRANTED SO THAT

THIS COURT CAN RESOLVE THE CONFUSION

AND UNCERTAINTY BETWEEN MOTIONS ADDRESSED

TO MISJOINDER UNDER F.R. Cr. P. 8 AND

PREJUDICIAL JOINDER UNDER F.R. Cr. P. 14

THAT LED THE COURT BELOW TO UPHOLD AN

OPPRESSIVE JOINDER OF FALSE DEPENDENCY

CHARGES WITH AN UNRELATED EXTORTION CHARGE.

Prior to trial the defendant moved for sever-

ance of the income tax charges from the other

charges in the indictment. Count 1 of the indict-

ment charged extortion and Count 2 charged ob-

struction of justice. The remaining five counts

charged various internal revenue code violations

for the tax years 1971, 1972, 1973, and 1974.

Defendant's motion papers specifically relied

upon Federal Rules of Criminal Procedure 8 and 14

and argued that the joinder of the tax charges

was unrelated to the extortion and obstruction of

justice counts. The circuit court, in upholding

the failure to sever, found that the tax evasion

count and the extortion count were sufficiently

close that the other crimes prejudice was not

substantial. With respect to the false dependency

counts, the circuit court recognized that they

bore no relationship whatsoever to the exto:'tion

or obstruction counts but thought the evidence

thereunder sufficiently distinct to avoid preju-

dicial spillover in the jury's deliberation. The

court did note, however, that, had defendant ad-

dressed his objection to the indictment directly

under Rule 8 for misjoinder rather than complain-

ing of prejudicial joinder under Rule 14, recent

Second Circuit case law might have required a

finding of error by the trial court in failing

to grant relief. See 595 F.2d at 1260 n.11.*

The circuit court's reference to the defendant's

failure to object to misjoinder under Rule 8(a)

is unwarranted and incorrect since defendant's

moving papers did specifically cite Rule 8 and

his attorney's supporting affidavit, while speak-

ing in terms of prejudicial joinder, did address

“subsequent to the argument in the circuit

court below, the Second Circuit ruled that joinder

of the tax charges with substantive charges might

be violative of Rule 8 as a matter of law. United

States v. Halper, 590 F.2d 422 (2d Cir. 1978).

the lack of relatedness under Rule 8 as part of

his reason for seeking severance. ~

At least with respect to the three counts of

the indictment charging false dependency exemp-

tions (upon which defendant was sentenced to nine

years imprisonment), the circuit court erred in

attempting to distinguish between a Rule 8 mis-

joinder problem and a Rule 14 prejudicial joinder

analysis. Both objections tc joinder rest essen-

tially upon the same evil of introduc‘ig “other

crimes" evidence. Defendant should not have been

subjected to a common trial for the extortion and

obstruction of justice counts together with the

false dependency counts since they bore absolutely

no relationship to each other. His joint trial

was inevitably different in character from a

separate trial focusing only upon the false depen-

dency claims. If the joinder was improper and

the defendant noticed the trial court prior to

*The motion and supporting affidavit is item

number 5 in the Record on Appeal filed below. The

motion is appended to this petition as Appendix G.

trial of his objection to joinder, how he styled

his motion should be immaterial since in actuality

under the Rules of Criminal Procedure it is a

Rule 12(b) motion and not a Rule 8 or Rule 14

motion. Were the law otherwise, the Government

could join any number of disparate charges not-

withstanding the clear mandate of Rule 8 and re-

quire a special showing of prejudice to obtain

severance. In granting certiorari on this aspect

of the case, the Court would have an opportunity

to address the apparent confusion which now

exists between Rule 8 and Rule 14 motions and

clarify the procedural and substantive aspects of

severance law.

Joinder of offenses is only permitted if

they are "of the same or similar character, or

are based on the same act or transaction or on

two or more acts or transactions connected together

or constituting parts of a common scheme or plan."

Fed. R. Crim. Pro. 8(a). These limitations pre-

vent the free introduction of prejudicial other

crimes evidence. Halper, 590 F.2d at 430.

Should joinder of offenses appear prejudicial to

the defendant, the court may then order a separate

trial of counts. Fed. R. Crim. Pro. 14. Drew

v. United States, 331 F.2d 85, 87 (D.C. Cir. 1964);

United States v. Burkley, 591 F.2d 903, 919 (D.C.

Cir. 1978); Halper, supra, 590 F.2d at 430 (2nd

Cir. 1978); United States v. Weber, 437 F.2d 327,

332 (3d Cir. 1970); United States v. Foutz, 540

F.2d 733, 736 (4th Cir. 1976); United States v.

Hatcher, 423 F.2d 1086, 1089 (5th Cir. 1970);

United States v. Mullen, 550 F.2d 373, 375 (6th

Cir. 1977) (J. Engel dissenting); Bayless v.

' United States, 381 F.2d 67, 72 (9th Cir. 1967).

Misjoinder occurred because the 1974

charges of extortion and tax evasion arose from

loansharking and prostitution activities, while

*In addition to the presence of other crimes

evidence, two other grounds for severance are nor-

mally recognized. First, that the crimes are so

similar that the jury will confuse the evidence

of them. “Second, that the defendant is embar-

rassed in his defense by having to present con-

tradictory defenses or by desiring to testify on

one charge but not on another. See Drew, supra,

331 F.2d at 88. :

the 1971, 1972, and 1973 charges of false state-

ments were based on construction work income.

Hence, the charges were neither “same act or

transaction" nor part of a “common scheme."

While the false exemptions and tax evasion are

both revenue violations, “similar acts" rationale

fails since the only similarity is intent.

Since the charges were so distinct from one

another, the other crimes prejudice inhered in

Evidence of the fact of the 1974 tax eva-

sion if established properly might have been

admissible to show a similar intent, Fed. R. Evi.

404(b). But, the prostitution and loansharking

evidence, showing income for 1974, is so tenu-

ously relevant and plainly inflammatory that it

could not have been admitted at a separate trial

for false exemptions. Fed. R. Evi. 403.

The case law supporting the contrary propo-

sition, see Annot., "Joinder of Offenses Under

Rule 8(a)," 39 A.L.R. Fed. 479, 504-05 (1978) ,

is easily distinguished. For the most part,

they concern either identical offenses occurring

in the different years, different offenses oc-

curring in the same year, or joinder in the in-

dictment, not at trial. In Baker v. United

States, 401 F.2d 958 (D.C. Cir. 1968), the one

case presenting facts similar to those at hand,

the evidence on the various crimes was found to

be mutually admissible. Cf. Drew, supra, 331

F.2d at 90.

their joinder, cf. Halper, supra, and severance

should have been granted.

While the schema of joinder and severance

appears simple to implement, the recent practice

of treating the "other crimes" problem variously

under the two labels of misjoinder and prejudicial

joinder as exemplified by the circuit court's

opinion has created procedural and substantive

conflicts among the circuits. Procedurally, some

circuits hold that all motions to sever are made

pursuant to Rule 14, while others hold that sep-

arate objection to misjoinder as a challenge to

the indictment is appropriate. See United States

v. Lugo, 269 F. Supp. 757 (E.D. Wis. 1967).

Despite the uniform agreement on the problem

of other crimes evidence, supra p. 5 , and on

the proper remedy being severance, Finnegan v.

United States, 204 F.2d 105 (8th Cir. 1953),

cert. .den., 346 U.S. 821; United States v. Harvick,

153 F. Supp. 696 (D.N.D. 1957); Lugo, supra;

United States v. Pagan, 393 F. Supp. 1395 (D.P.R.

1975); 8 Moore's Federal Practice § 8.04[1]; 8

14.02[1]; Wright, Federal Practice and Procedure,

Criminal, § 145 n.6; § 221; the proper application

for remedying the problem is unsettled. Some

authorities indicate that the proper motion is

made pursuant to Rule 14. United States v.

Goodman, 285 F.2d 378, 379 (5th Cir. 1961); Note,

"Joint and Single Trials Under Rules 8 and 14 of

the Federal Rules of Criminal Procedure," 74 Yale

L. Rev. 553, 554 (1965). Others indicate that

separate Rule &(a) and Rule 14 motions are appro-

priately made pursuant to Rule 12(b)(2) and Rule

12(b)(5), respectively. Ochs, 595 F.2d at 1261,

n.11; 8 Moore's Federal Practice § 8.04[1];

Decker, "Joinder and Severance in Federal Criminal

Cases: An Examination of Judicial Interpretation

of the Rules,’ 53 Notre Dame Lawyer 147, 163 n.97

(1977). Another authority indicates that the

rules do not explicitly provide for an objection

to misjoinder but that the court can remedy the

problem upon motion. Wright, Federal Practice

and Procedure, Criminal, § 145, pp. 335, 337.

In light of the uncertainty concerning the

proper motion to be made, permitting the defendant

to be prejudiced merely because he moved under

Rules 8 and 14 instead of Rule 12(b)(2) is a mani-

fest injustice. The circuit court ruling is par-

ticularly harsh in that the defendant did, despite

the circuit court's misimpression, object to the

Rule 8 joinder in his motion. Furthermore, ample

authority supports making the motion pursuant to

Rule 14. See, e.a., Goodman, supra. So strictly

construing the rules and taking the defendant to

task for relying on one of several conflicting

authorities will defeat the stated purpose of the

Federal Rules of Criminal Procedure "to provide

for a just determination of every criminal pro-

ceeding." Rule 2 (emphasis added). Finally,

while the circuit court faulted the defendant for

not objecting to the misjoinder, the prejudice of

which the defendant complained was in fact the

prejudice that the Rule 8 limitations on joinder

were intended to prevent. The defendant's com-

bined Rule 8 and Rule 14 motion should have been

recognized as appropriate notice to the trial

court to justify severance. Cf. Wangrow v. United

States, 399 F.2d 106, 110 n.1 (8th Cir. 1968)

(single objection preserved both misjoinder and

prejudicial joinder claims). The circuit court

should not be allowed to sanction a prejudicial

trial by strictly construing che rules in such an

uncertain area of law.

The misjoinder/prejudicial joinder distinc-

tion has generated varying standards of review

among the circuits as well as created unnecessary

procedural pitfalls. Motions to sever are usually

addressed to the trial court's discretion. In

examining the exercise of discretion, the circuit

courts have established two different standards

for each of the two labels applied to the other

crimes problem. Some courts hold that misjoinder

is an error of law that must be corrected on

appeal. See King v. United States, 355 F.2d 700

(Ist Cir. 19661); Ingram v. United States, 272 F.2d

567 (4th Cir. 1959); Ochs, supra, 595 F.2d at

1260 n.11. (Cthers have applied the harmless |

error standard under Rule 52(a). United States

v. Granello, 365 F.2d 990, 995 (2d Cir. 1966),

cert. den., 386 U.S. 1019 (1967); United States

v. Roselli, 432 F.2d 879, 901 (9th Cir. 1970),

cert. den., 401 U.S. 924 (1971); United States v.

Friedman, 445 F.2d 1076, 1083 (9th Cir.), cert.

den., 404 U.S. 958 (1971). See generally Note,

"Harmless Error and Misjoinder Under the Federal

Rules of Criminal Procedure: A Narrowing Division

of Opinion," 6 Hofstra L. Rev. 533 (1978); Decker,

"Joinder and Severance in Federal Criminal Cases:

An Examination of Judicial Interpretation of the

Federal Rules," 53 Notre Dame Lawyer 147, 164-67

(1977). While Rule 14 provides for severance due

to prejudice, see, e.g., United States v. Robinson,

503 F.2d 208, 215 (7th Cir. 1974), cert. den.,

420 U.S.949 ; United States v. Lyon, 397 F.2d

505, 509 (7th Cir. 1968), cert. den., 393 U.S.

846; United States v. Figueroa-Paz, 468 F.2d 1055,

1057 (9th Cir. 1972), several courts have raised

that standard to strong, clear, or substantial

prejudice. Ochs, supra, 595 F.2d at 1260;

United States v. Jamar, 561 F.2d 1103, 1106 (4th

Cir. 1977); United States v. Crouch, 528 F.2d 625,

631 (7th Cir. 1976), cert. den., 429 U.S. 900;

United States v. Griffin, 464 F.2d 1352, 1358

(9th Cir. 1972); United States v. Hastings, 577

F.2d 38, 40 (8th Cir. 1978). With such a variety

of standards to choose from, any given court

could choose from among the following combinations

in dealing with the single problem of other crimes

evidence due to joint trial: legal error for

misjoinder and prejudice for prejudicial joinder;

harmless error for mi_joinder and prejudice for

prejudicial joinder; legal error for misjoinder

and substantial prejudice for prejudicial joinder;

harmless error for misjoinder and substantial

prejudice for prejudicial joinder. Alternatively,

Professor Wright's characterization of Rule 8(a)

as permissive only (Wright, Federal Practice and

Procedure, Criminal $ 143) could be adopted, the

concept of misjoinder as an error distinct from

prejudicial joinder abandoned, and the prejudice

inherent in the joining of unrelated crimes recog-

nized under Rule 14. This approach would not only

have the advantage of simplicity, but would also

most closely comport with the plain meaning of

the rules.

Certiorari should be granted to resolve the

confusion among the circuits over the procedural

and substantive law of joinder and severance, to

prevent an unduly strict reading of the rules

resulting in an unjust determination of the de-

fendant's case and the resulting conflict between

circuits,and to grant the defendant relief from

what has been recognized as a trial of charges

under the prejudice of unnecessary other crimes

evidence.

POINT IV

CERTIORARI SHOULD BE GRANTED SO THAT

THIS COURT CAN AUTHORITATIVELY DETERMINE

WHETHER "CORRUPTLY" IS A MENS REA ELE-

MENT OF THE NOW FREQUENTLY CHARGED

OFFENSE OF OBSTRUCTION OF JUSTICE UNDER

18 U.S.C. § 1503 AND APPLY ITS PRECE-

DENTS HOLDING THE OMISSION OF ESSENTIAL

ELEMENTS FROM THE JURY CHARGE TO BE

PLAIN ERROR.

In its charge to the jury on the offense of

obstruction of justice, the trial court materially

misstated the law by excluding the word "corruptly"

as an element of the crime. Such misstatement

resulted in a failure to instruct on all essen-

tial elements of the crime charged and constituted

"plain error" in the jury charge. Fed. R. Crim. P.

30, 52(b).

The Government attempted to prove its case

on the obstruction of justice count by evidence

to the effect that the defendant approached his

friends who were subpoenaed by the grand jury

investigating his activities, informed them of

their privilege against self-incrimination and

requested them to avoid, if possible, discussing

interest payments made to him. In its charge to

the jury on the obstruction count, the trial court

instructed that

[t]he indictment specifically charges

the defendant with "corruptly" endeav-

oring to influence the ee

witness or witnesses. e wo

‘corruptly’ does not add an addi-

tional element to the crime. |

charge you as a matter of law that

any unauthorized endeavor to influ-

ence a witness in the performance

of his duty to testify violates the

law. It is the endeavor, not the

corruption, which is the gist of

the crimes (emphasis added).

Since the trial court nowhere else in its

charge listed the essential elements of the crime

of obstruction, the plain meaning of its charge

is that criminal liability attaches to any inter-

action with a grand jury witness regardless of

its motivation. Such an interpretation of the

statute in deleting the mens rea element of cor-

ruptly was clearly overbroad. It permitted the

_ jury to find guilt even if it disbelieved the

Government's evidence that the defendant asked

the witnesses to avoid testifying about certain

matters and only believed that the defendant did

advise the witnesses concerning constitutional

limits on their duty to testify. *

In response to the defendant's claim of plain

error for this mis-instruction and consequent

failure to charge an essential element of the

crime, the circuit court conceded "we do not under-

stand why the judge said what he did" but in

light of other portions of the charge plain error

was not committed. 595 F.2d at 1261. These sav-

ing portions were:

“While a grand jury witness is not entitled

to Miranda warnings to protect his Fifth Amendment

rights,

{t]he grand jury's authority to

compel testimony is not without limits.

The same Amendment that establishes

the grand jury also prerensens that

"no person . . . shall be compelled

in any criminal case to be a witness

against himself. . . ." The duty

to give evidence is therefore condi-

tional; every person owes society his

testimony, unless some recognized

privilege is asserted. United States

v. Mandujano, 425 U.S. 564, 572 (1976)

(plurality opinion) (emphasis added).

Since the duty is constitutionally conditioned,

advice as to the scope of the duty should not be

necessarily construed as interference with the

duty.

The defendant must corruptly endeavor,

that is deliberately and by his ac-

tion, to influence the witness to

testify falsely, evasively, or to

corruptly have the witness assert

their [sic] Fifth Amendment privi-

lege when otherwise they would

testify.

[and]

fa]ny . . . endeavor, whether suc-

cessful or not, which is made for

the purpose of corruptly influencing

a witness is condemned.

If the jury followed the trial court's in-

Struction construing "corruptly" as not adding an

element to the crime, the additional instructions

did nothing to rectify the deletion of the mens

rea element. The effect of the “corruptly” in-

struction can be readily seen by removing that

word from the other portions of the charge. The

language still remaining would have permitted a

finding of guilt for "hav[ing] a witness assert

his Fifth Amendment privilege" or for "any en-

deavor" to influence a witness. Such a deletion

of any essential element has often been held to

be plain error. Screws v. United States, 325 U.S.

91, 107 (1945); United States v. De Marco, 488

F.2d 828, 832 (2d Cir. 1973); United States v.

Small, 472 F.2d 818, 819 (3d Cir. 1972); United

States v. O'Dell, 462 F.2d 224, 233 (6th Cir.

1972); United States v. Thomas, 459 F.2d 1172,

1176 (D.C. Cir. 1972); United States v. Gaither,

440 F.2d 262, 264 (D.C. Cir. 1971).

Alternatively, the instruction on "corruptly"

and the other language using "corruptly" to de-

scribe the proscribed activities can be viewed

as contradictory. The jury, so charged, could

only have been confused by such ambiguous language.

Indeed, even the circuit court was puzzled by the

complained of deletion of "corruptly." 595 F.2d at 1261.

Jury instructions admitting no meaning or only

ambiguous meaning have been held by this Court

to constitute plain error. Bollenbach v. United

States, 326 U.S. 607, 613-15 (1946). Cf. De Marco,

supra, 488 F.2d at 832. As that Court said, "A

conviction ought not rest on an equivocal direc-

tion to the jury on a basic issue." 326 U.S. at

613.

Assuming, arguendo, that the circuit court

properly applied the plain error doctrine, the

logical implication of its holding is that “cor-

ruptly" does not constitute an element of the

crime. Contrary to any such implication, “cor-

ruptly” has been held to be an essential element

of obstruction. United States v. Roe, 529 F.2d

629, 633 (4th Cir. 1975); “Fifth Circuit Pattern

Instruction," cited at Devitt and Blackman,

Federal Jury Practice and Instructions § 32.03

(West Supp. 1979). This essential element, how-

ever, has been variously defined. The majority

of circuits views "corruptly" as indicating an

improper motive and thus focusing on the mens rea

of the offense. Martin v. United States, 166 F.2d

76, 79 (4th Cir. 1948); United States v. Ryan,

455 F.2d 728, 734 (9th Cir. 1971); United States

v. Partin, 552 F.2d 621 (5th Cir. 1977); United

States v. Zolli, 51 F.R.D. 522, 526 (E.D.N.Y.

1970). -Others hold that corruptly encompasses

any attempt or endeavor to influence a witness.

Broadbent v. United States, 149 F.2d 580, 581 (10th

Cir. 1945); Bosselman v. United States, 239 F. 82,

86 (2d Cir. 1917); United States v. Cohen, 202 F.

Supp. 587, 588 (D. Conn. 1962).

Delineating the mens rea element of obstruc-

tion is particularly important in light of the

broad nature of the crime. See “Annotation Con-

struction and Application of 18 U.S.C. § 1503,"

20 A.L.R. Fed. 731, 739-40 (1974). For an example

of the statute's far reaching scope, see United

States v. Fasolino, 449 F. Supp. 586 (W.D.N.Y.

1978), aff'd, 586 F.2d 939, denying a motion to

dismiss an indictment for obstruction alleging

that the defendant had asked an attorney to use

his friendship with a sentencing judge as a basis

for a leniency request. See also Cohen, supra,

202 F. Supp. at 588-89.

In the area of advising persons of constitu-

tional rights, instructing an intent is crucial,

since evil motive has been held to be the differ-

ence between innocence and guilt. Cole v. United

States, 329 F.2d 437, 439-41 (9th Cir. 1964),

cert. den., 377 U.S. 954; contra United States v.

Grunewald, 233 F.2d 556, 571 (2d Cir.), rev'd on

other grounds, 353 U.S. 391 (1957).

Certiorari should be granted to resolve the

conflict among the circuits concerning the requi-

site mens rea for the commission of the broadly

defined crime of obstruction of justice and to

apply this Court's precedents concerning plain

error in the charge to the jury in the instant.

case.

POINT V

CERTIORARI SHOULD BE GRANTED SO THAT A

SENTENCE WHICH ON ITS FACE IS IRRATIONAL

AND IMPROPERLY MOTIVATED CAN BE VACATED

IN THE INTEREST OF MAINTAINING AND FOSTER-

ING THE INTEGRITY OF THE FEDERAL JUDICIARY.

On its face the trial court's sentence in

this case is peculiar in its structure. The ag-

gregate prison term of twenty-three (23) years is

composed of sever (7) [of maximum of 20] for ex-

tortion; five (5) [the maximum] for obstruction

of justice; nine (9) [the maximum] for three

counts of claiming false dependency exemptions on

income tax returns; and two (2) [of maximum of 5]

for income tax evasion. The most substantial

component of defendant's sentence was the nine

years for the false dependency exemptions. That

is an offense which Congress has provided the

least maximum penalty for of the artes offenses

he was convicted upon. Moreover, he received for

each count of false statement a greater sentence

than he received for the evasion itself. The

circuit court was itself troubled by the structure

but concluded that a greater aggregate sentence

could have been justified. 595 F.2d at 1262.

Although trial courts enjoy a very wide latitude

in the imposition of discretionary sentences

within the statutory ranges, no trial court con-

duct should be immune from appellate review

simply because it involves the sentencing process

if it is indeed irrational. The "logic" of this

particular defendant's sentence would appear to

have been motivated by a desire of the trial

court to insulate as much of defendant's sentence

as possible from the impact of an appellate re-

versal of counts intimately tied to the much

contested search and seizure issue. The circuit

court recognized as much but observed, "[p]artic-

ularly in light of our disposition of the suppres-

sion claim, we are not concerned with how the

sentence was structured." 595 F.2d at 1262.

Assuming that the trial court's sentence was in-

deed structured to insulate it from the effect of

a possible reversal on the suppression issue, the

actual disposition of that appellate claim should

not neutralize the impropriety of the trial court's

sentence. An irrational sentence does not cease

to be so because it could have been imposed in a

rational manner; a vindictive sentence does not

become proper because it could have been struc-

tured in a lawful fashion. Accordingly, the writ

of certiorari should issue on this aspect of the

case to examine the implications of sentences of

this kind for the integrity of the federal judi-

ciary.

It is not possible in the instant case to

rationalize defendant's sentence in any way other

than as a blatant effort by the trial court to

secure as much of its sentence. as possible from

the possible reversal of the search issue. In

establishing a maximum range of twenty (20)

years for extortion, Congress indicated its re-

gard for the seriousness of that offense as com-

pared to the three (3) year maximum for each

false statement offense. Yet for extortion

defendant received a sentences of seven (7) years

and for repeatedly claiming a wife and children

he allegedly did not have he was sanctioned by

the district court to an aggregate sentence of

nine (9) years. The false dependency counts were

not proved with the records taken from the defen-

dant's briefcase. Those records were vital in

the prosecution of the extortion count.

Comparing the tax sentences themselves pro-

duces no valid explanation for the nine year sen-

tence for the false dependency exemptions. The

Federal Courts have recognized false exemptions

as a lesser wrong than tax evasion by holding

faise exemptions to be a lesser included offense

of tax evasion. United States v. Lodwich, 410

F.2d 1202 (8th Cir. 1969); Gaunt v. United States,

184 F.2d 284, 288 (Ist Cir. 1950). Finally, the

false exemptions denied the Government about

$2,500.00 in taxable income per count; the evasion

denied the Government tax upon taxable income of

$25,000.00. 595 F.2d at 1251. Yet for the eva-

sion defendant received only two years. This

offense was also proved with the tainted records.

While there i$ widespread disagreement and

disparity in the imposition of particular sentences

for tax cases, where custodial terms are imposed

they rarely exceed three years. See J. Craig,

"Sentencing in Tax Fraud Cases," 24 Tax Lawyef 49

(1970). Where more substantial custodial terms

are imposed in tax cases, the usual motivation is

to punish other offenses as in a pattern of orga-

nized criminal activity. See id. at 55, 60. It

is obvious in the instant case that the severe

custodial sentence meted out on the false state-

ment counts cannot be explained in that way since

the court had available to it a twenty (20) year

range for another substantive offense--the alleged

extortion--if it felt that defendant was a danger

to the community or had led a life of crime free

from sanction. There was absolutely no need to

resort to the tax violations to reach a properly

punitive sentence.

In light of the additional charges upon which

the defendant could be sentenced, the only possible

reason for the unusual structure was to punish

the defendant mos. harshly on those counts least

vulnerable to appellate reversal. As demonstrated

above in Point III, the false exemption counts

were unrelated to the other charges. They occurred

in different years and were proved by different

evidence. Hence, they were least threatened by

the illegality inherent in the search of the de-

fendant's briefcase which led to the defendant's

indictment and trial.

Such an exercise of discretion is wrongfully

motivated for two reasons. First, it punishes

the defendant for exercising his right of appeal

by prospectively enhancing his incarceration in

anticipation of a successful appeal. While the

trial court could not increase the defendant's

sentence without additional objective facts aris-

ing after his first conviction, North Carolina v.

Pearce, 395 U.S. 711, 726 (1969), and indeed might

not have the opportunity to resentence on certain

of the counts involved herein due to the suppres-

sion of illegally seized evidence, it has none-

theless meted out substantial and unusual punish-

ment for the specific crime. Indeed, the sentence

structure not only punishes the defendant's asser-

tion of rights, but also renders

his appeal partially futile, since the bulk

of the punishment, nine years, is arguably beyond

the reach of the Fourth Amendment argument. The

arbitrary sentence structuring employed here has

the same, if not greater, potential for vindic-

tive sentencing as the enhancement of sentencing

on retrial following a successful appeal. This

potential should also be limited by the adoption

of a prophylactic rule, either mandating an expla-

nation for such an unusual structure or prohibit-

ing such irrationality. Cf. Blackledge v. Perry,

417 U.S. 21, 27 (1974).

Secondly, the isolation of the largest com-

ponent of the sentence undermines the deterrence

effect upon which this Court has based the Fourth

Amendment exclusionary rule. See Michigan v.

De Fillippo, 47 U.S.L.W. 4805, 4807 n.3 (June 25,

1979). The exclusionary rule deters unlawful

police action by sildihh Geta the use of illegally

seized evidence at trial and thereby preventing

the punishment of crime via unconstitutional en-

forcement proceedings. The prevention of punish-

ment removes the motive for pursuing criminal ac-

tivity in an unconstitutional fashion. The trial

court, by imposing enhanced punishment on the

counts isolated from the search and seizure claim,

circumvented the prohibition against punishment

based on illegally seized evidence. Compare

Verdugo v. United States, 402 F.2d 599, 611 (9th

Cir. 1968), cert. den., 397 U.S. 925 (defendant

could not be sentenced on the basis of illegally

seized evidence specifically directed at his sen-

tence).

While this Court has previously held the

sentence within the limits set by law are gener-

ally not reviewable, United States v. Tucker, 404

U.S. 443, 447 (1972); Dorszynski v. United

States, 418 U.S. 424, 440 (1974), this Court has

also vacated sentences imposed in contravention

of constitutional rights. Pearce, supra; Tucker,

supra. As in Pearce, the sentence herein should

be vacated and the defendant should be resentenced

in a manner preventing the arbitrary and wrongful

imposition of sentence to make an appeal less

effective. As in Tucker, the sentence herein

should be vacated so that constitutional standards

this Court has adopted to effectuate the prohibi-

tion of unreasonable searches and seizures wil]

not be circumvented.

Furthermore, this Court should exercise its

Supervisory powers over the Federal Courts to

correct the trial court's gross abuse of power in

imposing an irrational and wrongfully motivated

sentence. While this Court has noted that the

sentencing court traditionally enjoys wide discre-

tion in imposing punishment within the law,

Dorszynski, 418 U.S. at 440, that discretion is

not unlimited. Not only has this court subjected

the discretion to constitutional limits, but the

circuit courts have uniformly and traditionally

held the sentencing court's decision subject to

review for gross abuse of discretion. Crespo v.

United States, 151 F.2d 44, 46-47 (Ist Cir. 1945),

cert. dism., 327 U.S. 758; United States v. Holder,

412 F.2d 212, 214-15 (2d Cir. 1969); United States

v. Frank, 245 F.2d 284, 288 (3d Cir. 1957), cert.

den., 355 U.S. 819; Tincher v. United States, 11

F.2d 18, 21 (4th Cir. 1926), cert. den., 271 U.S.

664; United States v. Weiner, 418 F.2d 849, 851

(Sth Cir. 1969); Livers v. United States, 185 F.2d

807, 809 (6th Cir. 1950); United States v. Cosen-

tino, 191 F.2d 574, 575 (7th Cir. 1951); Woosley

v. United States, 478 F.2d 139 (8th Cir. 1973);

Verdugo v. United States, 402 F.2d 599, 611-13

(9th Cir. 1968), cert. den., 397 U.S. 925; United

States v. Donohoe, 458 F.2d 237, 239 (10th Cir.

1972), cert. den., 409 U.S. 865.

The abuse of discretion in the instant sen-

tence is manifest. .To uphold an irrational exer-

cise of sentencing power not only offends funda-

mental fairness, cf. Pearce, supra, but also

threatens the integrity of the Federal judiciary.

Certiorari should be granted to that the defen-

dant can be sentenced in accordance with the

principles of fundamental fairness announced by

this Court, so that this Court's Fourth Amendment

policies can be fully effectuated, and so that a

gross abuse of discretion by the imposition of an

irrationally structured sentence can be corrected.

CONCLUSION

For all of the foregoing reasons, tye writ of

certiorari should be granted to review the final

judgment of the United States Court of Appeals for

the Second Circuit. That judgment should be vacated

and the matter remanded to the Circuit Court for

reconsideration in light of the principles of law

enunciated by this Court in Arkansas v. Sanders,

ea (June 20, 1979). Alternatively,

the writ should issue to review each of the impor-

tant questions of law raised in this petition.

Respectfully submitted,

STEVEN H. GIFIS

Attorney for Petitioner

Dated: July 24, 1979

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT,

UNITED STATES Vi OCHS, 595 F.2d 1247

OPINION MARCH 13, 1979

REHEARING DENIED MAY 25, 1979

Before FRIENDLY, MANSFIELD and MESKILL, Circuit

Judges.

FRIENDLY, Circuit Judge:

George Ochs was the subject of a seven count

indictment filed in October, 1977 in the District

Court for the Southern District of New York.

Count One charged him with the use of extortionate

means to collect a loan he had made to Debbie

McElroy, in violation of 18 U.S.C. § 894. Count

Two charged that he had obstructed justice by en-

deavoring to influence witnesses subpoenaed to

testify before a grand jury, in violation of 18

U.S.C. § 1563. Counts Three through Five charged

that he had falsely subscribed income tax returns

for 1971, 1972 and 1973, in violation of 26 U.S.C.

§ 7206(1) by claiming personal exemptions to which

he knew he was not entitled. Count Six charged

him with failure to file his 1974 income tax return,

in violation of 26 U.S.C. § 7203, and Count Seven

charged him with evading his 1974 federal income

taxes, in violation of 26 U.S.C. § 7201.

The Government's proof at a trial before Judge

Cooper and a jury sufficiently demonstrated that

during the years 1974 through 1976 Ochs owned and

operated a New York City massage parlor and conduct~

ed a loansharking business and that in the course

APPENDIX A

of his loansharking activities Ochs threatened to

murder Debbie Frank McElroy, a prostitute whom he

employed at his Studio One massage parlor, for

failure to make interest payments on an usurious

loan. The evidence further revealed several vico-

lations of the federal income tax laws. On his

1971, 1972, and 1973 tax returns Ochs claimed false

exempt ions for a non-existent wife and several

children, and in 1974 Ochs received $25,000 in in-

come from his prostitution and loansharking businesses

which he did not report; indeed Ochs filed no tax

return for 1974. Finally, while Ochs was being

investigated by a federal grand jury sitting in the

Southern District of New York, he approached witnesses

who were subpoenaed to appear before the grand jury

and instructed them to lie when questioned about pay-

ments of interest made on loans. Ochs instructed the

witnesses in the alternative to refuse to testify be-

fore the grand jury by asserting their Fifth Amendment

privilege.

The jury found Ochs guilty on all counts. Judge

Cooper sentenced him to consecutive terms of imprison-

ment of seven years on Count One, five years on Count

Two, three years on each of counts Three, Four and

Five, and two years,on Count Seven, for a total of

twenty-three years.

I. Search and Seizure

The point for reversal most strongly pressed by

Ochs is that he was the subject of an illegal search.

1. The judge suspended the imposition of sentence on

Count Six which he regarded as a lesser included

offense encompassed by Count Seven.

a Oa

APPENDIX A

After a two day hearing, the district court rendered

an opinion denying suppression. 461 F.Supp. 1 (1978).

The circumstances were as follows:

While cruising in a patrol car in the afternoon

of September 5, 1975, in the vicinity of the B. Alt-

man department store at Fifth Avenue and 35th Street

in New York City, Police Officers O'Malley and Kelly

were signalled by Theodore Bielefeld, the store's

assistant director of security. He informed the

officers that a "ring" of men, he believed three, were

engaged in cashing stolen American Express travelers'

checks and had just passed such checks in the store;

that two of them were then seated in a blue Cadillac

automobile parked on East 35th Street between Fifth

and Madison Avenues and a third, known to Bielefeld

as Julian Mitchell was no longer in sight; and that

Ochs, whom Bielefeld described, had just brought to

the store for refund goods procured by Mitchell with

stolen American Express checks on the previous day

but “for an unknown reason" had not obtained a refund

and had left the refund counter. Bielefeld had ob-

served Ochs enter the Cadillac. He showed the officers

photostatic copies of stolen American Express checks

in the name of O. Grable that had been cashed in the

store the previous day and a picture of Mitchell.

After Bielefeld had confirmed that the two men were

still in the Cadillac, the officers approached it,

O'Malley on the driver's side where Ochs was sitting,

Kelly on the passenger side where one Liveo was seated.

O'Malley perceived that Ochs fitted the description

given by Bielefeld and observed that an open knife on

the front seat between Ochs and Liveo. One of the

officers opened the car and seized the knife, which

they identified as a gravity knife, as defined in

New York Penal Law § 265.00(5), possession of which

is a misdemeanor, and if the possession is by any

APPENDIX A

person previously convicted of crime,” a felony, id..

§ 265.02(1).

The officers then ordered Ochs and Liveo out of

the car and frisked them without result. However,

as O'Malley was frisking Liveo, he noticed a black

object on the left front wheel well floor. Thinking

this might be a weapon, he reached in and took poss-

ession of the object, which turned out to be a book

of American Express checks in the name of O. Grable,

identical with those used by Mitchell at Altman's.

After administering the Miranda warnings, the

officers questioned Ochs about the ownership of the

automobile. Ochs said it belonged to a friend but

could not say where the friend was at the time. He

produced a New York State driver's license and a reg-

istration certificate for the vehicle in the name of

Otto Narday. O'Malley claimed that the upper portion

of the registration certificate had een tampered with,

a "7" having been changed to an "f".

O'Malley tried to verify the car's legal status

through the National Crime Information Computer but

static interfered. Obtaining aid from another police

car, O'Malley arrested and handcuffed Ochs and Liveo

fer possession of the gravity knife and removed them

to the Midtown South station house. He also arranged

2. Ochs had five prior convictions.

3. Narday testified that in fact the car belonged

to him, but that Ochs, to whom he was heavily in-

debted, could use it whenever he desired and in

fact had it 90% of the time.

ws anata rans swe atau

APPENDIX A

to have one of the policemen drive the Cadillac to

the same precinct, where it was "vouchered."

After having placed Ochs and Liveo in a detention

cell, O'Malley and Kelly searched the Cadillac and

made an inventory of its contents. The search yielded

a .32 caliber starter's pistol, a simulated revolver,

a scanning receiver (a device used to listen to police

radio transmissions), a B. Altman sweater, a second

book of stolen travelers' checks, and, in the footwells

of the back seat, two unlocked briefcases which were

taken into the police station. These were examined,

without protest, in the presence of Ochs who was near~

by in the detention cell.

One of the briefcases contained 8"x14" ledger sheets,

loose "index cards" bearing names and showing what

appeared to be loans and payments, four bankbooks, two

small notebooks containing loan records, and a calcu-

lator. The search of these papers appears to have been

in two phases. The police first leafed through the

papers to ascertain whether any contraband, money,

valuables, etc. were mixed in among them. Then the

police read some of the papers, starting with the

ledger sheets (the order after that is not clear).

The loose ledger sheets were marked "Studio 1". Be-

cause he had been to a "Studio 1" before on police

calls, Officer O'Malley was aware that there existed

in the city a "Studio 1" which was a house of pros-

titution. However, no expertise was needed to detect

that these sheets, containing the first names of

women (styled "models"), times in and out, customer

and "model" fees, were the records of such an estab-

lishment. In going through the bankbooks the officers

observed that three of the books were in the names of

persons other than Ochs or Narday. The police test~

ified that upon noticing this discrepancy they came

to believe that the bankbooks were stolen. The off-

icers also examined the loose index cards, and went

APPENDIX A

through the notebooks, which turned out to contain

records of loansharking activities. Officer O'Malley

testified that he had came upon a mention of "vig.",

a standard term in loansharking for the penalty on

a late payment, but, on being confronted with the

books, was unable to locate anything more than a

"y" before a date and a sum of money in the middle

of one of them. All these items were seized. Ochs

claims that the reading and seizure of the contents

of the briefcase violated his rights under the Fourth

Amendment.

The Government's first riposte is a challenge to

Ochs' standing. As the briefs were filed and argu-

ment was had before the Supreme Court's decision in

Rakas v. Illinois, U.S. __, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978), the debate was couched in terms

of Jones v. United States, 362 U.S. 257, 80 S.Ct.

725, 4 L.Ed.2d 697 (1960) and Brown v. United States,

411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973),

with Ochre relying on the fact that he was "legitimate-

ly on pre rises where a search occurr[ed]", 362 U.S. at

267, 80 S.Ct. at 734, this apparently being, in his

view, when the automobile was seized. Under Rakas

that alone is not sufficient, U.S. at » 99 S.Ct.

421. Now Ochs is obliged to show that he had a legit-

imate expectation of privacy with respect to the con-

tents of the briefcases, and we must apply the teach-

ings of Rakas in determining what constitutes such an

expectation on the part of the users of an automobile.

[1] The Court found that Rakas and King, his companion,

who were merely passengers in a car driven by its owner,

had no such legitimate expectation with respect to the

objects seized in that car since "[t] hey asserted

neither a property nor a possessory interest in the

automobile, nor an interest in the property seized."

__UeS. at _, 99 S.Ct. at 433. Ochs also asserted

eee ae ee ee IT ee et ae on ee

APPENDIX A

no interest in the property seized. Indeed, he de-

clined the Government's invitation to submit a 4

"possessory affidavit" at the suppression hearing.

He likewise asserted no proprietary interest in the

automobile, although the Government.claimed at trial

that he was the de facto owner. However, the record

shows that he had a possessory interest in the car.

As indicated above, see note 3 supra, the record

owner allowed him to use it whenever he wished and

Ochs freely availed himself of the privilege. The

very grounds on which the Rakas Court distinguished

Jones v. United States, supra, work in Ochs' favor.

Just as was the case with Jones and his friend's

apartment, Ochs "not only had permission to use" the

car but "had a key" to it. Except with respect to

the owner, Ochs "had complete dominion and control"

over the car "and could exclude others fram it."

We therefore reach his claim on its merits.

4, Despite the Court's refusal in Rakas, U.S.

at ___en.l, 99 S.Ct. 421, to remand in order to

afford petitioners another opportunity to claim

a proprietary or possessory interest, we would

be concerned about dismissing Ochs' Fourth Amend-

ment claim on the basis of his failure to assert

such an interest. At the time of the suppression

hearing Ochs had reason to rely on the "legitimate

presence" theory, end there was no occasion for

him to assert that the briefcase and its contents

were his when this seemed unnecessary to his supp-

ression claim. Moreover, the Government asserted

at trial that Ochs was the owner of the briefcase

and its contents, as it had previously conceded

that it would. It is not clear whether Rakas elin-

inates "automatic standing" in cases of prosecu-

torial self-contradiction, see —s U.S. at se n.4,,

99 S.Ct. 421, at __—s nn. 6, 99 S.Ct. 421 (dissenting

(Cont 'd)

APPENDIX A

Ochs not seriously dispute that the police

haa ceebehie Unie to arrest him both for trafficking

in stolen travelers' checks and for being in possess~

ion of a gravity knife. Since we are here dealing with

an autamobile which, in sharp contrast to the car in

Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971), was being used for an

illegal purpose and was parked not in the driveway of

the owner's house but on a public street, the police

were entitled to search it on the spot for additional

stolen checks and for weapons, even in areas that were

not within "grabbing distance" under Chimel v. Calif-

ornia, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685

(1969). See id. at 764 n.9, 89 S.Ct. 2034; Chambers

v. Maroney, 399 U.S. 42, 50-52, 90 S.Ct. 1975, 26

L.Ed.2d 419 (1970). Moreover, the police were not re-

quired to make the search at that time and place. The

car was illegally parked on a busy New York City street

(Cont'd) | |

opinion). There was no such nécessary self-contra~

diction in Rakas since the state could have contended

that even if the defendants had neither a property

interest nor possession, their knowledge or prior use

of the rifle and shells had probative value. Justice

White, in dissent, took the view that self-contradiction,

U.S. at n.6, 99 S.Ct. 421, and the decision be~

Tow, People V. Rakas, 46 Ill.App.3d 569, 4 I11.Dec. 877,

360 N.E.2d 1252 (1977), indicates this. See 4 I11.Dec.

at 879, 360 N.E.2d at 1254. In light of our conclusion

that Ochs had standing because of his possessory inter~

est in the automobile, we find it unnecessary to re~

solve this issue.

APPENDIX A

during the afternoon rush hour, and the police were

entitled to take it and its occupants to the precinct,

where a search could safely be made. Chambers v.

Maroney, supra, 399 U.S. at 52 n.10, 90 S.Ct. 1975.

[3,4] Once, the car was there, the police had the same right

to make a prompt search of it as they had before, since,

given the probable cause to search that existed, "there

is little to choose in terms of practical consequences

between an immediate search without a warrant and the

car's immobilization until a warrant is obtained."

Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct.,

at 1981. As said in the plurality opinion in Coolidge,

supra, 403 U.S. at 463, 91 S.Ct., at 2036, “where

the police may stop and search an automobile under

Carroll, (Carroll v. United States, 267 U.S. 132,

(45 S.Ct. 280, 69 L.Ed. 543] (1925)] they may also

seize it and search it later at the police station."

Chambers also teaches that "the mobility of the car

(still obtains at the station house] unless the

Fourth Amendment permits a warrantless seizure of

the car and the denial of its use to anyone until a

warrant is secured." 399 U.S. at 52, 90 S.Ct., at

1981. In the present case, this "mobility" of the

car, and the resultant exigency of the search, were

particularly pressing, since Ochs was not the owner

of the car, and his friend, Narday, whan Mitchell,

the third member of the thieving party, might have

alerted, could have claimed it and its contents at

any time. See United States v. Frick, 490 F.2d 666,

669-70 (5 Cir. 1973), cert. denied, 419 U.S. 831,

95 S.Ct. 55, 42 L.Ed.2d 57 (1974); United States v.

Evans, 481 F.2d 990, 994 (9 Cir. 1973). Such a

search may include containers which police have prob-

able cause to believe may contain evidence of the

crime which justifies the search. See, e.g., Unit-

ed States v. Tramunti, 513 F.2d 1087, 1104 (2 Cir.

1975), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46

10a

APPENDIX A a

.Ed.2a 50 (1975); United States v. Canada, 527 F.2d

sae meee (9 Cir. 1975), cert. denied, 429 U.S. 867,

97 S.Ct. 177, 50 L.Ed.2d 147 (1976); United States v.

Davis, 496 F.2d 1026, 1031-32 (5 Cir. 1974) ;} United States

v. Frick, 490 F.2d at 669-70 (5 Cir. 1974), cert. denied,

419 U. S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974).

[J We see no indication that the authority of Chambers

has been impaired. The plurality opinion in Coolidge v.

New Hampshire, supra, 403 U.S. at 459-60, 91 S.Ct. 2022,

was at pains to distinguish Chambers as being inapplicable

to a car not claimed to have been then engaged in any

illegal activity and parked at Coolidge's home, which

was seized several weeks after an investigation had

commenced, see 403 U.S. at 463-64 & n.20, and 523, 91

S.Ct. 2022 (opinion of Mr. Justice White). In Card-

well v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d

325 (1974), four Justices thought Chambers to be appli-

cable, four thought it not to be, and the casting vote

went on a ground that avoided decision of the merits.

In any event the case differed from Chambers and from

ours in that the arrest of the defendant and the seizure

of the car were not made under exigent circumstances;

there had been ample time to procure a warrant before

the car was seized. Finally, although the question may

be closer, United States v. Chadwick, supra, 433 U.S. 1,

97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), did not, affect the

viability of Chambers on facts such as these. The Chief

5. Some courte have thought the contrary, see United

States v. Stevie, 582 F.2d 1175, 1179 (8 Cir. 1978)

(en banc) petition for cert. filed, 47 L.W. 3437 (U.S.

Dec. 15, 1978) (No. 78-971) (luggage seized in car

stopped on the highway can only be searched pursuant

to warrant); United States v. Vallieres, 443 F.Supp.

186, 191 (D.Conn.1977); see also Sanders v. State, 262

Ark. 595, 559 S.W.2d 704 (1977), cert. granted,

U.S. , 99 S.Ct. 247, 58 L.Ed.2d 236 (1978) (No.77=-

1497). The Ninth Circuit, however, has concluded that

(Cont'd)

cia Sk ante iM ll th la, , eat

lla

APPENDIX A

Justice there stressed that the Government did "not

contend that the footlocker's brief contact with

Chadwick's car makes this an automobile search",

433 U.S. at 11, 97 S.Ct., at 2483-2484, and noted

that the Court had sustained "‘'warrantless searches

of vehicles ...in cases in which the possibilities

of the vehicle's being removed or evidence in it

destroyed were remote, if not non-existent,'" id.

.at 12, 97 S.Ct., at 2484, quoting

413 U.S. 433, 441-42, 93 S.Ct. 2523, 37 L.Ed.2d 706

Cady v. Dambrowski,

(1973), and citing Chambers v. Maroney. The reason

for the Government's failure to contend that the

Chadwick case was governed by Chambers was doubtless

that the footlocker had never been in the autamobile

(Cont'd)

luggage searches pursuant to Chambers remain un-

touched by Chadwick, see United States v. Finnegan,

568 F.2d 637, 641 (9 Cir. 1977). See also United

States v. Gaultney, 581 F.2d 1137, 1144 (5 Cir. 1978).

And even the Eighth Circuit has shown some reluc-

tance to extend Chadwick beyond luggage , see

United States v. Neumann, 585 F.2d 355, 360-61

(8 Cir. 1978) (closed box can be searched). See

also United States v. Stevie, supra, 582 F.2d at

1180 (Gibson, J., dissenting); United States v.

Currington, 451 F.Supp. 39, 43-44 & n.6 (S.D.N.Y.

1978); United States v. McGrath, 448 F.Supp.

1338, 1341-42 (S.D.N.¥.1978). Our statement in

United States v. Marchand, 564 F.2d 983, 991-92

(2 Cir. 1977), cert. denied, 434 U.S. 1015, 98

S.Ct. 732, 54 L.Ed.2d 760 (1978), which Chief

Judge Gibson criticized in his dissent in Stevie,

has no bearing on the problem of automobile

searches.

12a’

APPENDIX A

in any meaningful sense; it had been placed in the

trunk, which was still open, and the engine had not

been started. 433 U.S. at 4, 97 S.Ct. 2476. The

Court did not pass on the legality of a warrantless

search of suitcases within the car, since the Govern-

ment had not drawn into question the adverse ruling

of the Court of Appeals on this point, 433 U.S. at

5 n.1, 97 S.Ct. 2476, and none of the majority save

Mr. Justice Brennan questioned the assertion of Mr.

Justice Blackmun (joined by Mr. Justice Rehnquist)

in dissent, that "if the agents had postponed the

arrest just a few minutes longer until the respondents

started to drive away, then the car could have been

seized, taken to the agents’ office, and all its con-

tents -including the footlocker-searched without a

warrant." Id. at 22-23 & n.4, 97 S.Ct., at 2489.

Two additional circumstances further distinguish

this case fran Chadwick. The first, of lesser conse-

quence, is that the briefcases, unlike the Chadwick

footlocker, were not locked. The second is the

exigent circumstance arising from the likelihood of

Narday's appearing at the station and demanding the

car and its contents. This implicates directly the

statement already quoted from Chambers that when

probable cause exists, the police must be allowed

to make a thorough investigative search of a car and

its contents "unless the Fourth Amendment permits a

warrantless seizure of the car and the denial of its

use to anyone until a warrant is secured", 399 U.S.

at 52, 90 S.Ct., at 1981, see Chadwick, supra, 433

U.S. at 13-14 n.8, 97 S.Ct. 2476.

[6] Since in our view Chadwick does not make the

search of the contents of the briefcase a per se

violation of the Fourth Amendment, we prefer to

rest our decision on the ground that Chadwick did

not impair Chambers rather than on our decision in

United States v. Reda, 563 F.2d 510 (2 Cir. 1977)

13a

APPENDIX A

cert. denied, 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d

65 (1978), holding Chadwick inapplicable to pre-Chadwick

renee per ntape that — also not an automobile search.

Appellant claims t Reda gave inadequate weight to the

remand of Schleis v. United States, 433 U.S. 905, 97

S.Ct. 2968, 53 L.Ed.2d 1089 (1977), for further consid-

eration in light of Chadwick, see opinion on remand, 582

F.2d 1166, 1173-74 & n.6 (8 Cir. 1978). Chadwick was

decided after an affirmance of Reda's conviction by oral

order from the bench and. the effect of Chadwick was

raised on a pro se petition for rehearing. Neither

the petition nor the Government's response galled the

panel's attention to the remand of Schleis.” While

Reda remains the law of this circuit, we need not rely

on it when what we consider a more satisfactory basis

for decision is available.

(7,8] While substitution of Chambers for South Dakota

v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d

1000 (1976), the authority relied on by the district

court as the basis for what it held to be a valid in-

ventory search, see 461 F.Supp. at 9, does not end the

case, it affords the proper framework for analysis.

There is no reason why the conduct of the police in

this case should be tested under the more limited prin-

ciples of Opperman, appropriate to the taking of an

inventory when there was no reason to believe that the

car might contain the fruits or means of a criminal

enterprise. There Mr. Justice Powell, whose vote was

needed to make up a majority, pointedly observed, 428

U.S. at 380 n.7, 96 S.Ct., at 3102:

6. The bearing of the Supreme Court's remand of

Schleis was likewise not discussed in United States

v. Montgomery, 558 F.2d 311 (5 Cir. 1977), on which

the Reda panel relied.

14a

APPENDIX A

As part of their inventory search the police may

Giscover materials such as letters or checkbooks that

“touch upon intimate areas of an individual's personal

affairs," and "reveal mich about a person's activities,

associations, and beliefs." California Bankers Assn.

v. Shultz, 416 U.S. 21, 78-79, [94 S.Ct. 1494, 1525,

39 L.Ed.2d 812] .(1974) (Powell, J., concurging). See

also Fisher v. Uriited States, 425 U.S.391, 401 n.7,

(96 S.Ct. 1569, 1576, 48 L.Ed.2d 39] (1976). In

this case the police found,.inter alia, "miscellan-

eous papers," a checkbook, an installment loan book,

and a social security status card.

e+eThere is, however, no evidence in the record that

in carrying out their established inventory duties

the Vermillion police do other than search for and

remove for storage such property without examining

its contents.

Mr. Justice Marshall, speaking for four Justices,

428 U.S. at 388 n.6, 96 S.Ct., at 3107, agreed with

this and went on to ".....note that the Court's

Opinion does not authorize the inspection of suit-

cases, boxes, or other containers which might them-

selves be sealed, removed, and secured without fur-

ther intrusion." To be sure, it is also true that

neither the plurality opinion nor Mr. Justice Powell's

concurrence says that inspection of containers is

not authorized in an inventory search, and arguably

such containers, at least if unlocked, should be as

inspectable as the unlocked glove compartment in

Opperman, which could also have been sealed. Be

all this as it may, the question whether Opperman

permits inspection of sealable containers as an

incident to an inventory is an open and serious

one, see, e.g., United States v. Hill, 458 F.Supp.

31 (D.D.C. 1978), and there is no reason why the

Government should have to assume the burden of

showing that the search of Ochs' briefcases was

permissible as an incident to an inventory search

15a

APPENDIX A

when Chambers allowed an investigative search. It

is of no importance that the police may have thought

their only power was to make an inventory; the test

is what could lawfully be done, not what the police-

men thought the source of their power to be.

The serious question is whether, granted all this,

the search, particularly the reading and seizure of

records found in the briefcase, did not exceed re-

asonable bounds. It could be argued that since ~

Chimel v. California, supra, 395 U.S. 752, 89 S.Ct.

2034, 23 L.Ed.2d 685 did not overrule Harris v. Unit-

ed States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399

(1947), and United States v. Rabinovitz, 339 U.S. 56,

70 S.Ct. 430, 94 L.Ed. 653 (1950), as applied to

automobile searches, 395 U.S. at 764 n.9, 89 S.Ct.

2034, the question is readily answered in favor of

the Government. However, we are not obliged to go

so far.

[9,10] We start with the proposition that when in

the course of a legal warrantless search a police

officer comes upon a suspicious object, he is en

titled to inspect it and, if it consists of fruits,

instrumentalities or evidence of crime, to seize

it, even though the crime was not that which justi-

fied the search. Harris v. United States, supya,

7. Although Chimel v. California, supra, 395 U.S.

at 768, 89 S.Ct. 2034, overruled Harris with re-

spect to the permitted area of the search, it did

not reflect on this holding, and Harris was cited

for the proposition in United States v. Robinson,

414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427

(1973).

16a

APPENDIX A

Abel v. United States, 362 U.S. 217, 234-40, 80

S.Ct. 687, 4 L.Ed.2d 668 (1960); Coolidge v.

New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971) (plurality opinion) ;

United States v. Robinson, 414 U.S. 218, 236, 94

S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson

v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.

2d 456 (1973); United States v. Duckett, 583

F.2d 1309, 1312-13 (Sth Cir. 1978); United States

v. Bertucci, 532 F.2d 1144, 1146 (7 Cir.), cert.

denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d

178 (1976); United States v. Bell, 464 F.2d 667,

674 (2 Cir.), cert. denied, 409 U.S. 991, 93 S.Ct.

335, 34 L.Ed.2d 258 (1972); cf. United States v.

Pugh, 566 F.2d 626, 627-28 (8 Cir. 1977), cert.

denied, 435 U.S. 1010, 98 S.Ct. 1885, 56 L.Ed.2d

393 (1978); United States v. Rollins, 522 F.2d

160, 166 (2 Cir. 1975), cert. denied, 424 U.S.

918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976); United

States v. Wysocki, 457 F.2d 1155, 1160-61

(5 Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145,

34 L.Ed.2d 105 (1972); United States v. Patterson,

447 F.2d 424, 427 (10 Cir. 1971), cert. denied,

404 U.S. 1064, 92 S.Ct. 748, 30 L.Ed.2d 752 (1972);

United States v. Simpson, 453 F.2d 1028 (10 Cir.),

cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.

2d 337 (1972); United States v. Garner, 451 F.2d

167 (6 Cir. 1971); and United States v. Gamori, 437

F.2d 312 (4 Cir. 1971). This principle readily

sustains the reading and seizure of the Studio 1

records, loose ledger sheets whose value as evidence

of crime was apparent on their face. Even if the

Government were here obliged to rely on the "plain

view" doctrine, seizure of these sheets met the two

express limitations stated by Mr. Justice Stewart

in Coolidge v. New Hampshire, supra, 403 U.S. at

467-71, 91 S.Ct. 2022, namely, that a lawful search

must be in progress and that the discovery of the

17a

APPENDIX A

evidence must be inadvertent, as well as the condition,

403 U.S. at 466-67, 91 S.Ct. at 2038, that "the exten-

sion of the original justification is legitimate only

where it is immediately apparent.to the police that

they have evidence before them." We reach the same

conclusion with respect to what the parties speak of

as “index cards", an appellation conveying a greater

sense of formality than is warranted. Campare United

States v. Teller, supra, 412 F.2d at 379. These

cards, which also appear to have been loose, are

full of writings describing loans and payments.

8. The panel in United States v. Berenguer, 562

F.2d 206, 210 (2 Cir. 1977), rephrased this to

read “its incriminatory nature must be immedi-

ately apparent". We applied this seemingly

stricter formulation in United States v. Diaz,

577 F.2d 821, 833 (2 Cir. 1978), but found this

condition to be satisfied. In so confused an

area, it seems best to stick to the exact lan-

guage of the Supreme Court's plurality opinion

rather than to embroider on it even slightly.

The court has given little guidance as to what

it meant by the phrase quoted in text. Justice

Stewart, in Coolidge, cites his concurring

opinion in Stanley v. Georgia, 394 U.S. 557,

569-72, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969),

where three Justices concurring would have found

unlawful a search in which police , after dis-

covering film reels during a search pursuant to

warrant for evidence of bookmaking,.viewed the

films (on a projector on the premises) and seized

them as obscene. See also United States v. Hunt,

366 F.Supp. 172, 181 (N.D.Tex.1973), rev'd on

different grounds , 505 F.2d 931 (5 Cir. 1974).

Short of this, the question seems to have been

raised only in two dissents from denials of

(Cont'd)

18a

APPENDIX A

(Cont'd)

certiorari. See Sedillo v. United States, 419

U.S. 947, 95 S.Ct. 211, 42 L.Ed.2d 168 (1974)

(Douglas J., dissenting); Gentile v. United

States, 419 U.S. 979, 980 n.1, 95 S.Ct. 241, 42

L.Ed.2d 191 (1974)(Douglas J., dissenting).

A number of courts, including this one, have

upheld without much discussion the seizure of

documents during an otherwise valid search as

in "plain view" notwithstanding the fact that

some perusal, generally fairly brief, of the

documents was clearly necessary in order for the

police to perceive the relevance of the document

to crime. Mapp v. Warden, 531 F.2d 1167, 1172

(2 Cir. 1976), cert. denied, 429 U.S. 982, 97

S.Ct. 498, 50 L.Ed.2d 592 (1976)(rent receipts);

United States v. Pugh, supra, 566 F.2d 626, 637-

38 (log of drug distributions seized after view

of book entitled "Cocaine Users Handbook"); United

States v. Parker, 530 F.2d 208, 210-11 (8 Cir.

(1976) (ledger book); United States v. Gargotto,

476 F.2d 1009, 1013-15 (6 Cir. 1973), aff'd after

remand, 510 F.2d 409 (6 Cir. 1974), cert. denied,

421 U.S. 987, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975)

(betting records seized during arson investigation);

United States v. Damitz, 495 F.2d 50 (9 Cir. 1974)

(notebook used for recording drug weights); United

States v. Smith, 462 F.2d 456, 461 (8 Cir. 1972)

(lease); United States v. Henkel, 451 F.2d 777,

781 & n.4 (3 Cir. 1971), cert. denied, 409 U.S.

859, 93 S.Ct. 144, 34 L.Ed.2d 104 (1972) (serial

numbers); United States v. Maude, 156 U.S. App.

D.C.378, 384-86, 481 F.2d 1062, 1069-71 (1973)

(identification cards); United States v. Teller,

412 F.2d 374, 379 (7 Cir. 1969), cert. denied,

(Cont'd)

ted dnie ans Cette

19a

APPENDIX A

(Cont'd)

402 U.S. 949, 91 S.Ct. 1603, 29 L.Ed.2d 118 (1971)

(index cards with license numbers); United States

v. Callabrass, 458 F.Supp. 964 (S.D.N.¥. 1978)

(papers seized at scene of fire); United States

v. Vallieres, 443 F.Supp. 186, 191 (D.Conn. 1977)

(address book in unzipped bag in trunk of car);

United States v. Menke, 339 F.Supp. 1023, 1026

n.4 (W.D.Pa.), rev'd on different grounds, 468

F.2d 20 (3 Cir. 1972)(address book and mailing

registry slip), See also United States v. Ben-

nett, 409 F.2d 888, 896-97 (2 Cir. 1969), cert.

denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d

101 (1969); United States v. Jenkins, 496 F.2d

57, 72-74 (2 Cir. 1974), cert. denied, 420 U.S.

925, 95 S.Ct. 1119 (1975); Taylor v. State, 342

F.Supp. 911, 915 (D.Minn.1972), aff'd, 466 F.2d

1119 (8 Cir. 1972), cert. denied, 410 U.S. 956,

93 S.Ct. 1425, 35 L.Ed.2d 689 (1973); contra,

In re Calandra, 332 F.Supp. 737, 745 (N.D. Ohio

1971), aff'd sub nom. United States v. Calandra,

465 F.2d 1218 (6 Cir. 1972), rev'd on differ-

ent grounds, 414 U.S. 338, 94 S.Ct. 613, 38

L.Ed.2d 561 (1974). As this court has recently

stated, "It would be absurd to require an in-

vestigator to be oblivious to that which would

be apparent to anyone else with normal powers

of observation." Mapp v. Warden, supra, 531

F.2d at 1172.

204

APPENDIX A

Moreover, on one of the two cards submitted to

us as samples, the very first entry records a loan

to Debbie Frank [McElroy] for $1,500, repayable in

21 weekly payments of $100 each, and the other card

seems to show a loan of $555 repayable in 5 weekly

installments of $135.

(11, 12] By this time, the police had probable

cause to believe that Ochs was engaged not only

in trafficking in stolen travelers' checks and

Carrying a gravity knife, but also in the conduct

of a house of prostitution and a large scale and

to the stolen travelers’ check ring. United

and Narday. See United States v. Duckett, supra

583 F.24 at 1312-13; United states v. sedille

496 F.2d 151 (9 Cir. 1974), cert. denied, 419

U.S. 947, 95 S.Ct. 211, 42 L.Ed.2d 168 (1974).

With so much in the way of cause to believe in

Ochs' widespread participation in criminal

activities, inspection and seizure of the two

notebooks showing loan transactions did not vio-

late the cammand of the plurality opinion in

Coolidge that "the 'plain view’ doctrine may not

be used to extend a general exploratory search

det tame te Than t, nadine

APPENDIX A

from one object to another until something in-

criminating at last emerges," 403 U.S. at 466,

91 S.Ct. at 2038, even if the Government had to

rely on it. On the contrary, the police here

advanced from incriminating object to incriminat-

ing object. Even under the plain view doctrine

in the incriminating nature of an object is gener-

ally deemed "immediately " where police

have probable cause to believe it is evidence of

crime. See, e.g., United States v. Duckett, supra,

583 F.2d at 1313-14; United States v. Johnson, 541

F.2d 1311, 1316 (8 Cir. 1976); United States v.

Clark, 531 F.2d 928, 932 (8 Cir. 1976); United

States v. Truitt, 521 F.2d 1174, 1176-77 (6 Cir.

1975); United States VY. Blake, 484 F.2d 50, 57

(8 Cir. 1973), cert. denied, 417 U. S. 949, 94

S.Ct. 3076, 41 L.Ed.2d 669 (1974); United States

v. Benn, 441 F.Supp. 1268 (E.D.N.Y.1977). Al-

though one court has suggested that more than

probable cause is required, see United States v.

Smollar, 357 F.Supp. 628, 632 (S.D.N.Y¥.1972),

even that court did not require that officers be

“absolutely certain" that they have evidence be-

fore them. Id. They may test their belief by

ing with a limited inspection of the

“incriminating object." See, e.g., United States

v. Pugh, supra, 566 F.2d at 627-28; United States

v. Duckett, supra, 583 F.2d at 1313; Mapp v. Warden,

supra, 531 F.2d at 1172; United States v. Patter-

son, supra, 447 F.2d at 427; United States v.

Damitz, supra, 495 F.2d at 56; United States v.

Blake, supra, 484 F.2d at 57; United States v. )

Smollar supra, 357 F.Supp. at 63. Surely the ;

police in this case had probable cause to believe }

that the remaining records might constitute fur-

ther evidence of any one of the several crimes )

that had been progressively unfolding before their

pee

22a

APPENDIX A

eyes. Prostitution and loansharking are crimes

that demand record keeping, and the proximity of

these closed records to the clearly incriminating

loose records in the very same briefcase gave the

police probable cause to believe that the closed

records might contain evidence relating to the

crimes already discovered. The standard for prob-

able cause in the seizure of documents appears to

be the same as it is with respect to any other

seizure of “mere evidence" —i.e., probable

cause must be examined in terms of cause to be-

lieve that the evidence sought will aid ina

particular apprehension or conviction. In this

examination, consideration of police purposes is

. Warden v. Hayden, 387 U. S. 294, 307,

87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Andresen v.

Maryland, 427 U.S. 463, 483, 96 S.Ct. 2737, 49

L.Ed.2d 627 (1976). Here it seems clear that the

police had probable cause to seize the records as

potentially constituting evidence or instrumentali-

ties relating to any one of three "particular"

crimes.

[13] Under all these circumstances, it would out-

rage common sense and human nature to read the

Fourth Amendment to require that after having

lawfully opened the briefcase and inspected the

Studio 1 ledger sheets, the cards and at least the

front sheets of the bankbooks, the police should

be required to interrupt their work and apply for

@ warrant before going further, particularly when

there was no telling when Narday might show up

and demand the return of the car and its contents.

See Lowe v. Caldwell, 367 F.Supp. 46, 53 n. 1l

(S.D.Ga.1973) , vacated and remanded sub nom.

Lowe v. Hopper, 501 F.2d 952 (5 Cir. 1974), ad-

hered to, 400 F.Supp. 970 (S.D.Ga.), aff'd, 520

23a

APPENDIX A

F.2d 1045 (5 Cir.1975).

What gives a certain amount of pause about this

case is that the material seized by the police in

their Chambers-justified investigative inspection

of the briefcase was not hardware or contraband

but records. Under the old rule of United States

v. Lefkowitz, 285 U. S. 452, 465-66, 52 S.Ct.

420, 76 L.Ed. 877 (1932), the search of the brief-

case could not lawfully have encompassed "mere

evidence". When the rule was abrogated in Warden

Vv. Hayden, 387 U.S. 294, 303, 87 S.Ct. 1642, 1648,

18 L.Ed.2d 782 (1967), the Court noted that the

items there at issue were not "testimonial" or

“cammunicative" in nature and that it was thus

not required to "consider whether there are items

of evidential value whose very nature precludes

them from being the object of a reasonable search

and seizure." We gave some attention to this

problem in United States v. Bennett, supra, 409

F.2d at 895-97, without being required to resolve

it. The Supreme Court has recently held in

Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737,

49 L.Ed. 2d 627 (1976), that a proper search and

seizure, pursuant to a warrant, of a defendant's

incriminating business records which had been

voluntarily reduced to writing offended no Fifth

Amendment interests of the defendant. Id. at

474-77,96 S.Ct. 2737. The Court found that, pro-

vided the search and seizure met the

of the fourth amendment's warrant clause, privacy

interests are adequately protected. See Note,

Formalism, Legal Realism, and Constitutionally

Protected Privacy under the Fourth and Fifth

Amendments, 90 Harv.L. Rev. 945, 979 (1977). The

Court in Andresen did not address the question

of warrantless searches for documents which fall

24a

APPENDIX A

within recggnized exceptions to the warrant re-

quirement.” Since Ochs has not_raised the question,

we see no reason to do so here.

9. The documents listed in the warrant in Andresen

were evidence of a real estate fraud and were

limited to dealings relating to a single lot

(13T). Some documents were seized which related

to a different lot, and these documents were

used "to secure additional charges" against the

defendant. Id.427 U.S. at 484, 96 S.Ct.2737.

However, the Court found that the documents were

within the warrant, since they would have been

admissible with respect to lot 13T as "proof of

similar acts is admissible to show intent."

Id. at 483, 96 S.Ct. at 2750.

10. In view of our conclusion we find no need to

consider an alternative theory propounded by

the Government on the basis of United States

v. Zaicek, 519 F.2d 412 (2 Cir. 1975). Relying

on a supposed analogy to cases arising under

federal and state statutes forfeiting vehicles

which carry contraband, see United States v.

Francolino, 367 F.2d 1013 (2 Cir. 1966), cert.

denied, 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d

110 (1967), and Cooper v. California, 386 U.S.

538, 87 S.Ct.788, 17 L.Ed.2d 730 (1967), the

majority in that case held that when a car had

been seized at the request of the owner under

§ 424(3) of New York's Vehicle & Traffic Law,

which grants a police officer "power to seize

any motor vehicle . .. when there is good

reason to believe that such motor vehicle...

(Cont'd)

25a

APPENDIX A

II. Claims of Trial Error

Ochs mounts a series of attacks on the conduct

of the trial. These deserve only brief treatment.

[14-17] The first objection relates to the admis-

Sion of "prejudicial" evidence of Ochs' engagement

in loansharking and prostitution. This evidence

was directly relevant to Count Seven which charged

Ochs with evading federal income taxes on "income

derived from extortion, loansharking and prosti-

tution," United States v. McGrath, 558 F.2d 1102

(2 Cir. 1977), cert. denied, 434 U.S. 1064, 98

S.Ct. 1239, 55 L.Ed. 2d 765 (1978); United States

v. Eliano, 522 F.2d 201 (2 Cir. 1975), and also

afforded necessary background to the obstruction

of justice count. See United States v. Weiss, 491

F.2d 460, 466-67 (2 Cir.), cert. denied, 419 U.S.

833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974). Objec-

tion to admission of a tape recording of Ochs'

(Cont'd)

has been stolen... .", the vehicle and its con-

tents were subject to search since the police had

a possessory interest superior to the thief's.

Here Ochs had not stolen the car, and we are far

from satisfied that the police had probable cause

to think he had. Indeed, it is questionable that

they really did; when they arrived at the precinct

station, no further effort was made to ascertain

from the National Crime Information Computer whether

the Cadillac was on the list of stolen cars.

Other theories advanced by the Government, even if

sound, would lead it no further than does the appli-

cation of Chambers v. Maroney.

26a

APPENDIX A

attempt to bribe Officer O'Malley to perjure him

self about where and how the knife was found in

the Cadillac is likewise without merit. The at-

tempted bribery was admissible as showing con-

sciousness of guilt, see United States v. Cirillo,

468 F.2d 1233, 1249 (2 Cir. 1972), cert. denied,

410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973),

and as an act of concealment relevant to the charge

of willful evasion of income taxes in Count Seven.

Barcott v. United States, 169 F.2d 929, 932 (9 Cir.

1948). There is equally little merit in the claims

of error in allowing the Government to bring out

that Debbie Frank McElroy, one of the victims of

Ochs' extortion, had been a prostitute. It was

her decision to quit the oldest profession that led

to her: falling into default, the consequent threats,

and her return to Studio One to earn money to re-

pay Ochs. Again we see no possible merit in the

Claim that it was error to allow numerous debtors

to testify that Ochs instructed them to mail remit-

tances to "Gambino" at a Bronx address. If Ochs

chose to make false use of the name of a well-known

underworld figure to instill fear, he must bear

the consequences. United States v. Cirillo, supra,

468 F.2d at 1240; United States v. Zito, 467 F.2d

1401, 1405 (2 Cir. 1972).

[18-20] Ochs next complains of the trial court's

Genial of his motion to sever the tax counts under

F.RCr.P. 14,11

11. Ochs did not raise the question of misjoinder

under F.R.Cr.P.8.

(Cont 'd)

27a

APPENDIX A

(Cont'd)

It now appears, in light of our recent decision in

United States v. Halper 590 F.2d 422 (2 Cir. 1978),

subsequent to the argument in this case, that if

the trial court had been presented with a proper

claim of misjoinder pursuant to F.R.Cr.P. 8(a),

it might have been required to grant a severance

as a matter of law. In Halper, it was held that,

on the facts of that case, joinder of counts of

tax evasion and Medicaid fraud would be improper

under F.R.Cr.P. 8(a) and that the error was pre-

judicial. We need not determine whether Halper

would he applicable here. Since Ochs failed to

challenge the indictment below for misjoinder under

F.R.Cr.P. 8(a), he has waived that objection.

F.R.Cr.P. 12(b)(2); 8 Moore, Federal Practice {

12.03{2] (1978 ver.). Furthermore, it is well-

settled in this circuit that the “harmless error"

doctrine, F.R.cr.P. 52(a), applies in cases of

misjoinder. See, e.g., United States v. Turbide,

558 F.2d 1053, 1061 (2 Cir.), cert. denied, 434

U.S. 934, 98 S.Ct.421, 54 L.Ed.2d 293 (1977);

United States v. Granello, 365 F.2d 990, 995 (2

Cir. 1966), cert. denied, 386 U.S. 1019, 87 S.Ct.

1367, 18 L.Ed.2d 458 (1967). Misjoinder is

typically found harmless where evidence tending

to prove the charge that should have been severed

would nevertheless have been admissible at the

severed trial. United States v. Turbide, supra,

558 F.2d at 1061; United States v. Granello, supra,

365 F.2d at 995. Since we find that to be the case

here, see text infra, any misjoinder error here would

have been harmless even if Ochs had preserved his

objection.

28a

APPENDIX A

To obtain reversal, Ochs must show that the refusal

to sever was so unfairly prejudicial as to consti-

tute an abuse of discretion. As we have recently

noted, "'(W)e are reluctant to overturn a convic-

tion for denial of a motion for severance unless

there is a showing of substantial prejudice... .

It is not sufficient merely to show that the ac-

cused would have had.a better chance for acquittal at

@ separate trial'" United States v. Lyles, 593 F.2d

182, 189 (2 Cir. Jan. 31, 1979) (quoting) United

States v. Stirling, 571 F.2d 708, 733 (2 Cir.),

cert. denied, -—- U.S. emi! 99 $.Ct. 93, 58 L.Ed. 2d

116 (1978)); see also United States v. Corr, 543

F.2d 1042, 1052 (2 Cir. 1976); United States v.

Papadakis, 510 F.2d 287, 300-01 (2 Cir.), cert.

Fi 421 U.S. 950,95 S.Ct.1682,44 L.Ed.2d. 104

{21] We find no "substantial prejudice" here. Most,

if not all, of the evidence on the extortion and

obstruction of justice counts would have been admis-

sible on the evasion of taxes count, and the joinder

of the latter was not prejudicial as to the form

er. See United States v. McGrath, supra, 558

F.2d at 1106. The false exemption counts were

sufficiently discrete that we see no danger of pre-

judicial spill-over.

29a

APPENDIX A

Ochs' claim that he would have testified on the false

exemption counts if they had been severed is advanced

for the Sires time in this court and thus need not be

considered.

[22] The argument of insufficiency of the evidence

on the extortion count, also raised for the first

time on appeal, borders on the frivolous. It is

unnecessary to go beyond the evidence, first cam

municated in slightly different terms through a

friend and then directly, that if McElroy did not

pay up, "she is going to have a broken head and

be found floating in the river."

12. Beyond this, as the Government points out,

it is hardly likely that Ochs, with five felony

convictions which could have been used for im-

peachment, would have taken the stand even on

a trial limited to the false exemption counts

and, if he had any defense; the alleged wives

and children were available as witnesses.

13. This aquatic threat seems to be quite vener-

able, see United States v. Kennedy, 291 F.2d 457,

459 (2 Cir. 1961).

30a

APPENDIX A

Equally meritless is Ochs’ claim relating to a

Stipulation entered into between Ochs and the

Government in connection with the false exemption

claims. This stipulation stated that an official

of a "New York agency" would testify that during

an eighteen-month period when Ochs was required

to make a statement regarding his marital status,

dependents and place of residence, he gave no in-

Aication that he was married or had children.

Cchs argues that this might have led a juror to

Speculate that the “agency” was a prison or parole

authority, as in fact it was. In framing the

Stipulation, the Government and the court went

far beyond anything required of them, as did the

court in instructing the jury, to bring the danger

of prejudice to Ochs as near to zero as was pos-

sible.

III. Claims of Error in the Charge

[23] Although no exception was taken at the trial,

Ochs now objects to a portion of the charge on the

obstruction of justice count:

The indictment specif ically charges the defendant

with 'corruptly' endeavoring to influence the de-

Signated witness or witnesses. The word ‘corruptly'

does not add an additional element to the crime.

I charge you as a matter of law that any unauthorized

endeavor to influence a witness in the performance

of his duty to testify violates the law. It is the

endeavor, not the corruption, which is the gist of

the crime.

Since the statute defines the offense, 18 U.S.C.

§ 1503, as:

ee a

3la

APPENDIX A

Whoever corruptly, or by threats or force,

or by any threatening letter or communica-

tion, endeavors to influence, intimidate,

or impede any witness, in any court of the

United States . . . shall be fined...

or imprisoned..."

we do not understand why the judge said what he

did. If, as the Government suggests, he was

trying to explain that the crime lay in the endeavor

even if it did not succeed, the language was not

apt to that end. However, he had previously said:

The defendant must corruptly endeavor, that is

deliberately and by his action, to influence

the witness to testify falsely, evasively, or

to corruptly have the witness assert their

[sic] Fifth Amendment privilege when other-

wise they would testify.

and added immediately after the challenged instruc-

tion that:

{aJny . . » endeavor, whether successful or not,

which is made for the purpose of corruptly in-

fluencing a witness is condemned.

We therefore do not regard the charge as plain

error requiring reversal in the absence of objec-

tion.

(24) The only other objection to the charge

deserving comment relates to the tax evasion count.

The judge instructed that in the absence of con-

trary agreement between debtor and creditor, pay-

ments are first to be applied to interest. Ochs

contends that this deprived him of his defense that

he believed he was entitled to treat repayments on

legally unenforceable usurious loans as a return

of principal until payments exceeding that sum

were received. At best the point would cover only

32a

APPENDIX A

a small portion of the unreported income. In

view of this and of other factors urged in the

Government's brief, we find no prejudicial error.

IV. Attack on the Sentence

[25] Ochs contends that the imposition of con-

secutive terms .f three years, the maximum permissi-

ble, on the three false exemption counts, was so

irrational and consequently such a manifest abuse

of discretion as to be within this court's power

to correct. See United States v. McCord, 466 F.2d

17 (2 Cir.1972), and cases there cited. He claims

that the false exemptions amounted to only $2,500

per count; that the general practice in the South-

ern District of New York is to impose only sus-

pended sentences and fines for such offenses; and

that it was irrational to impose what amounted to

a nine-year sentence for these minor offenses as

compared with a two-year sentence for the more

serious crime of tax evasion, I.R.C.§ 7201. Ochs

also suggests that the heavy sentence on the false

exemption counts may have been due to the court's

having "structured its sentence to immunize the

maximum amount of custodial time from any reversal

as to the suppression issue . . ." and invokes

United States v. Ramos, 572 R2d 360 (2 Cir.1978).

We are not disposed to use this case to test the

limits of our power with respect to sentences that

are within legal limits and are not shown to have

been based upon materially inaccurate information.

Judge Cooper was dealing not with a man who had

simply yielded to the temptation to cheat the

Government of income taxes by claiming false ex-

emptions but with an individual whose whole life -

from the age of 16 to his then age of 48 had shown

a contemptuous disregard for law. After serving

33a

APPENDIX A

jail sentences and being released on parole, he

repeatedly violated parole by committing new crimes.

On the undisputed record disclosed in the pre-

sentence report, the judge could reasonably have

given Ochs an even higher total sentence than he

did. Particularly in light of our disposition

of the suppression claim, we are not concerned with

how the sentence was structured.

We have considered many other claims of error

but do not deem them worthy of discussion.

Affirmed.

MESKILL, Circuit Judge (concurring) :

I concur in the result announced today and

in parts II, III and IV of Judge Friendly's

Opinion.

rather than light, making the resolution of each

succeeding case less rather than more certain.

34a

APPENDIX A

In the two years since the Supreme Court held

unreasonable the warrantless search of a footlocker

removed by federal agents from the trunk of an

automobile, United States v. Chadwick, 433 U.S. » &

97 S.Ct. 2476, 53 L.Bd.2d 538 (1977), the lower

federal courts have been unable to harmonize their

See, e.g., the following cases, all of which either

involved a post-Chadwick search or assumed or held

Chadwick to apply retroactively: United States

Vv. Neumann, 585 F.2d 355 (8th Cir. 1978) (post-

Chadwick warrantless search, on the scene, of

closed but unsecured Dayton's Department Store

box removed from vehicle after arrest of occupants,

held reasonable as either investigative or inven-

tory search, distinguishing Chadwick); United

(en banc, reversina panel decision reported at

reasonable, citing Chambers v. Maroney, 399 U.S.

42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1979), and

distinguishing Chadwick); United States v. Hill,

458 F. Supp. 31 (0.D.C.1978) (post-Chadwick war-

rantless inventory search, at police station, of

open flight bag removed from locked trunk of im-

pounded vehicle held unreasonable, citing Chadwick).

35a

APPENDIX A

See also Sanders v. State, 262 Ark. 595, 559 S.W.2d

704 (1977), cert. granted, -— U.S. wea 99 S.Ct.

247, 58 L.Ed.2d 236 (1978) (pre-Chadwick warrantless

search, on the scene, of suitcase removed from trunk

of taxicab held unreasonable, citing Chadwick).

Clearly, when the precedents in such a crucial area

of constitutional law offer so little guidance that

it is difficult to choose between opposite re-

sults on the basis of superior reasoning, our

ability to dispense justice is severely hampered.

Nevertheless, we are obligated to decide the ap-

peals that come before us.

I concur in today's result but I take a different

path from that followed by Judge Friendly. Given

the state of the law, Judge Friendly's analysis

cannot be rejected as implausible, although I

think it may underestimate the intended impact of

Chadwick on Chambers. I prefer to leave explora-

tion of the effect of Chadwick on vehicle searches,

whether "inventory" or "investigative" for a case

to which Chadwick is clearly applicable.

Shortly after Chadwick was handed down, this Court

held that the decision was not to be given retro-

active effect. United States v. Reda, 563 F.2d

510 (2d Cir. 1977), cert. denied, 435 U.S. 973,

98 S.Ct. 1617, 56 L.Ed.2d 65 (1978). See also

United States v. Diaz, 577 F.2d 821, 824 (2d Cir.

1978). The Reda panel relied on United States v.

Peltier, 422 U.S. 531, 95 S.Ct. 3213, 45 L.Bd.2d

374 (1975), in which the Supreme Court addressed

the question of the retroactive application of

exclusionary rule decisions. The Peltier Court

reasoned that neither the judicial integrity

rationale nor the deterrence of police misconduct

rationale would justify retroactive exclusion of

—

36a

APPENDIX A

evidence seized by law enforcement officers who

reasonable believed in good faith that their search

was in accordance with the law, even though deci-

sions subsequent to the search have broadened the

exclusionary rule to encompass evidence seized in

that manner. To date, three courts of

besides our own have read Peltier to bar the retro-

active application of Chadwick. United States v.

Choate, 576 F.2d 165, 182 n.20 (9th Cir.) cert.

denied, ———- U.S. —— 99 S.Ct. 350, 58, L.Ed.2d

344 (1978); United States v. Berry, 571 F.2d 2 (7th

Cir. 1978); United States v. Montgomery, 558 F.2d

311 (5th Cir. 1977). But see United States v. 1

Schleis, 582 F.2d 1166 (8th Cir. 1978) (en banc).

1. In June of 1977 the Supreme Court vacated a

judgment of the Court of Appeals for the Eighth

Circuit, involving a 1974 briefcase search, 543

F.2d 59 (1976), and remanded for further consi-

sideration in light of Chadwick. Schleis v.

United States, 433 U.S. 905, 97 S.Ct. 2968, 53

L.Ed.2d 1089 (1977). I do not read the Schleis

remand as an indication that Chadwick is nec-

essarily to be given retroactive effect. Four

courts of appeals have held Chadwick not retro-

active. United States v. Montgomery, 558 F.2d

311, (th Cir. 1977); United States v. Reda,

563 F.2d°510 (2d Cir. 1977), cert. denied, 435

U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978);

United States v. Berry, 571 F.2d 2 (7th Cir.

1978); United States v. Choate, 576 F.2d 165,

182 n.20 (9th Cir. 1978). See also tnited

States v. Powell, 449 F.Supp. 562 (E.D.Pa. 1978).

(Cont 'd)

37a

APPENDIX A

Since the Supreme Court has not as yet passed on

the retroactivity of Chadwick, Reda is the law of

this Circuit. Thus there is no need today to as-

sess the impact of Chadwick on warrantless vehi-

cle searches, either "investigative" or "invento-

ry."

Putting Chadwick aside and viewing the law as it

stood at the time of the search, I see no reason

why the itemizing of the contents of Ochs' brief-

case should not be regarded as having been per-

formed pursuant to a legitimate inventory search.

(Cont'd)

Each of these cases was decided after the Supreme

Court remanded the Schleis case to the Eighth

Circuit for consideration in light of Chadwick

(which had been decided six days before the remand

was ordered). But see United States v. Schleis,

582 F.2d 1166, 1173-74 & n.6 (8th Cir. 1978) (view-

ing remand as direction to apply Chadwick retro-

actively). Compare Winkle v. Bannan, 368 U.S. 34,

82 S.Ct. 146,7 L.Ed.2d 91 (1961), remanding case

for consideration in light of Mapp v. Ohio, 367 U.S.

643, 81 S.Ct. 16484,6 L.Ed.2d 1081 (1961). Four

years after Winkle in Linkletter v. Walker, 381

U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965),

the Supreme Court, acting with the benefit of the

previously expressed and conflicting views of

six courts of appeals, held Mapp not to apply to

state court convictions which, like the conviction

in Winkle, had become final before Mapp was de-

cided.

38a

APPENDIX A

Three years ago, in South Dakota v. Opperman, 428

U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976),

the Supreme Court upheld as reasonable the inven-

tory search of a vehicle properly taken into police

Custody, and the incriminating evidence found in

the glove compartment was held admissible at trial.

automobile, held reasonable under both Opper=

man and Chambers). See also United States v.

Friesen, 545 F.2d 672, 673-74 (9th Cir. 1976) cert.

denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Bd.2a

1096 (1977) ("Where property is validly held by

law enforcement officers for which they may have

responsibility, it seems a use

This text is long and has been trimmed here. Open the source document for the complete record.

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.