# Petition — Ochs v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0694%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 955

## 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

11

14

ii

PAGE
S int B

custody thus presents no retr
issue. seen GR Te 22

© @eeeesecece 29

© @eeeseece 30

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

37

46

59

67

77

iv

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”

65

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

75

74,75

50,51

44
24

52

70

55

38,40

55

76

20

vi

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

42

64

a4

28 ,43,73
19

35

72,74,76

35

36

36

35

24

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

26

65

76

57

62,63

26

76

ix

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

26

65

56

16

50

75

56

63

36

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

57

65

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

52

57

50

75

56

70

52

a

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

56

wT EM ORODSOSSOSSOS Coccec ecg

63

52

64

(1975) eeeeeeceececececccceoeceeceeece eeeereeceecee 7 23,26,27

tn
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
ee
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

51
51

65

51

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

34

71

(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

64

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

56

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

la

4la

65a

66a

67a

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

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.

10

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.

1
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

12

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).

13

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.

14

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.

15

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

16

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

17

. . 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:

18

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.

19

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

20

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

21

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.
|

24

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

25

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:

26

‘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 —

27

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

28

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.

29

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,

30

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

31

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

32

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

33

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

34

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

35

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

36

(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

37

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

38

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.

39

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

40

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

4]

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

42

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

43

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.

44

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

45

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.

46

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

47

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).

48

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.

49

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.

50

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. :

51

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.

52

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

53

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

54

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

55

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

*

56

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

57

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

58

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.

59

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

60

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

61

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.

62

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

63

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

64

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,

65

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

66

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.

67

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

68

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

69

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

70

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

71

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

72

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

73

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-

74

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

75

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.

76

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.

77
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

la

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

23

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

3a

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

4a

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

5a

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

6a

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

7a

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)

8a

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.

9a

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 prope

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0694%3A1. Public record. Not legal advice.