Opposition — Ochs v. United States

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Iu the Supreme Court of the United States

OCTOBER TERM, 1979 ;

No. 79-203

GEORGE OCHS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, Jr.

Solicitor General

M. CARR FERGUSON

Assistant Attorney General

ROBERT E. LINDSAY

JAMES A. BRUTON

Attorneys

Department of Justice

Washington, D.C. 20530

Page

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CITATIONS

Cases:

Arkansas v. Sanders, No. 77-1497 (June

ls BONED. «cinaciipapiicumunbinatne 8, 9, 10, 11, 138

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

cert. denied, 400 U.S. 965 ~................. 16

Chambers v. Maroney, 399 U.S, 42 .......... 8

Coolidge v. New Hampshire, 403 U.S.

OD eestsennnsnicisiigiaariibinantnamutaaeinipioitisted eee 11,14

Dorszynski v. United States, 418 USS.

GE icniiicitaidesncgusteitinniedenn ican: Ganea 19

Gore v. United States, 357 U.S. 386 ........ 19

| Gurera v. United States, 40 F.2d 338........ 19

People v. Sullivan, 29 N.Y.2d 69, 272 N.E.

| 2d 464, 323 N.Y.S.2d 945 —200.2 ww... 14

Scott v. United States, 436 U.S. 128 ........ 14

South Dakota v. Opperman, 428 U.S. 364..8, 9, 13

United States v. Calandrella, Nos. 78-

5341, 78-5342 (6th Cir. Aug. 31,

ROGOD: chsntiviantusntiiplinitnnhitetinns Cea eabiaa. 12

United States v. Chadwick, 433 U.S. 1....8, 9, 10,

11, 12, 13

United States v. Choate, 576 F.2d 165,

cert. denied, 439 U.S. 953 12

eee

II

Cases—Continued Page

United States v. Mancillas, 580 F.2d 1301,

cert. denied, 439 U.S. 958 ....................-- 12

United States v. Montgomery, 558 F.2d

311, cert. denied, 434 U.S. 927 ............ 12

United States v. Niederberger, 580 F.2d

63, cert. denied, 439 U.S. 980 .................... 16

United States v. Park, 421 U.S. 658 ........ 18

United States v. Peltier, 422 U.S. 581..10, 11, 12

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

i ae: A: OR 8, 12

United States v. Ritch, 588 F.2d 1179,

cert. denied, 489 U.S. 970 ...................... 16

United States v. Schleis, 582 F.2d 1166.... 12, 13

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

cert. denied, No. 78-971 (June 25,

RCE Giiictiinlijecnaiies ee x» 12,18

United States v. Tramunti, 513 F.2d 1087,

cert. denied, 428 U.S. S82 ..............2..200s000-- 14

United States v. Tucker, 404 U.S. 443...... 19

United States v. Turbide, 558 F.2d 1053,

cert. denied, 484 U.S. 934 ..................... 15

United States v. Zaicek, 519 F.2d 412...... 14

Constitution, statutes and rules:

United States Constitution, Fourth Amend-

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LE.) Ee ee eevee es 3

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Be Se ae. TOE wiecincsstinsineanasthetcdiencee 3

N.Y. Penal Law:

§ 265.00(5) (McKinney 1967) .......... 5

ee

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Ill

Constitution, statutes and

rules—Continued Page

§ 265.02(1) (McKinney Cum. Supp.

PUD sainicsiiesctibietinsadiiattianecnneeimantinnecenn 5

Federal Rules of Criminal Procedure:

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PT IED 05.s eitusinlelsncccntnncihminammhapicoioonne 15, 16

IIE CHIEN salle deeienseceiisnipsiesallamnaoadinions 15, 16

3"

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-203

GEORGE OCHS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the district court (Pet. App. 41la-

64a) is reported at 461 F. Supp. 1. The opinion of

the court of appeals (Pet. App. la-40a) is reported

at 595 F.2d 1247.

JURISDICTION

The judgment of the court of appeals was entered

on March 18, 1979. A petition for rehearing was

denied (Pet. App. 65a) on May 25, 1979. The time

“~

(1)

2

for filing a petition for a writ of certiorari was ex-

tended by Mr. Justice Marshall until July 24, 1979,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether evidence obtained by New York City

police in a warrantless search of a briefcase located

in the rear passenger compartment of an automobile,

which the police believed to be stolen and conse-

quently impounded at the time of petitioner’s arrest,

should have been suppressed.

2. Whether the district court abused its discretion

when it refused to sever the trial of the income tax

counts of the indictment from the trial of the extor-

tion and obstruction of justice counts.

8. Whether the district court properly instructed

the jury on the count of the indictment charging

petitioner with endeavoring to influence, intimidate,

or impede grand jury witnesses.

4. Whether petitioner’s sentence, which was with-

in the statutory maximum, was proper.

STATEMENT

1. After a jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted on all counts of a seven-count

indictment (Pet. App. la-2a; A. 12a).' The indict-

1“A.” references are to the Joint Appendix filed by the

parties in the court of appeals. “I-Tr.” references are to the

transcript of the suppression hearing held on December 13,

1977. “II-Tr.” references are to the transcript of the De-

cember 20, 1977, suppression hearing.

3

ment charged petitioner with using extortionate means

to collect extensions of credit, in violation of 18 U.S.C.

894 (Count One), with obstructing justice by en-

deavoring to influence witnesses subpoenaed to testify

before a grand jury, in violation of 18 U.S.C. 1503

(Count Two), with filing false income tax returns

for the years 1971 through 1973 in which he claimed

dependency exemptions for a nonexistent wife and

several nonexistent children, in violation of 26 U.S.C.

7206(1) (Counts Three through Five), with willfully

failing to file an income tax return for 1974, in viola-

tion of 26 U.S.C. 7203 (Count Six), and with will-

fully attempting to evade his income taxes for 1974,

in violation of 26 U.S.C. 7201 (Count Seven). The

district court sentenced petitioner to consecutive terms *

of imprisonment of seven years on Count One, five

years on Count Two, three years each on Counts

Three through Five, and two years on Count Seven:

a total of 23 years’ imprisonment (Pet. App. 2a;

A. 12a). The court suspended the imposition of sen-

tence on Count Six, which it regarded as a lesser

included offense encompassed by Count Seven (Pet.

App. 2a n.1).

The evidence at trial (Pet. App. la-2a) established

that during the years 1974 through 1976, petitioner

owned and operated a New York massage parlor and

conducted a loan-sharking business.* The evidence

2 Debbie McElroy, a prostitute employed at petitioner’s

Studio One Massage Parlor, testified that petitioner threatened

to murder her when she failed to make timely payments on

a usurious loan which he had made to her (Pet. App. 2a).

*&

4

also showed that petitioner failed to file an income tax

return for 1974 although he had earn more than

$25,000 from his illicit activities during that year and

owed approximately $5,939 in income taxes. During

1974, petitioner opened several savings accounts in the

names of other persons, and during a subsequent

grand jury investigation he instructed these persons,

who had been subpoenaed as witnesses, not to reveal

that they had paid over to him the interest on these

accounts. Petitioner stipulated at trial that, although

he had claimed income tax exemptions for a spouse

and dependent children in 1971, 1972 and 1973, there

was no record of his having a wife or any children.

Finally, the evidence revealed that petitioner at-

tempted to bribe the two New York City policc of-

ficers who arrested him and sought to induce them

to perjure themselves before the grand jury. Peti-

tioner also approached several other witnesses and

instructed them to testify falsely or claim the Fifth

Amendment privilege and refuse to testify.

2. Before trial, petitioner filed a motion to suppress

evidence that had been obtained by New York City

police officers from an unlocked briefcase that they

discovered during an inventory search of the auto-

mobile that petitioner was using at the time of his

arrest (Pet. App. 41a). The facts of the search were

as follows. On September 5, 1975, New York City

Police Officers John O’Malley and William Kelly

were stopped by a security officer at B. Altman’s

3 Friends and business associates testified that they did not

know of petitioner’s having a wife or any children.

al 5

department store who told them that a “ring” of

men were engaged in cashing stolen travelers’ checks

at that store. The security officer stated that a

“heavy set male” (I-Tr. 10) had just attempted to

obtain a refund on goods that had been purchased

from the store the previous day by another member

of the ring with stolen travelers’ checks. The heavy

set male had failed to obtain a refund, however, and

had left the store and entered a blue Cadillac that

was parked nearby.

The officers approached the blue Cadillac and ob-

served petitioner and another man sitting in the car.

As they approached, Officer O’Malley noticed an open

knife blade lying on the front seat between the two

men. One of the officers opened the car door and

quickly seized the knife, which they immediately

identified as a gravity knife, possession of which is

a crime under New York law (Pet. App. 3a, 45a

n.4).*

After taking the knife away, the officers ordered

petitioner and the other man, Louis Liveo, out of the

car. While frisking Liveo, Officer O’Malley noticed a

black object on the floor of the car. Thinking it might

be a weapon, the officer picked it up and discovered

it to be a book of American Express travelers’ checks

bearing the name O. Grable (Pet. App. 4a, 46a).

* Possession of a gravity knife is a misdemeanor under

N.Y. Penal Law § 265.00(5) (McKinney 1967), except when

possession is by a person who has previously been convicted

of a crime, in which case it is a felony. N.Y. Penal Law

§ 265.02(1) (McKinney Cum. Supp. 1975). Petitioner had

five prior criminal convictions at the time of his arrest (Pet.

App. 8a-4a n.2).

~

6

After administering Miranda warnings, the officers

asked petitioner who owned the Cadillac, and he told

them that it belonged to a friend but he could not

tell the officers where the friend was at the time.

Petitioner produced a registration certificate for the

vehicle bearing the name Otto Narday.® Officer

O’Malley inspected the document and noticed that the

registration had been tampered with (Pet. App. 4a,

46a; I-Tr. 15). Suspicious that the car had been

stolen, O’Malley tried to radio the Communications

Bureau to inquire about the ownership of the Cad-

illac, but radio static interfered (Pet. App. 4a, 47a).

Petitioner and Liveo were then arrested for posses-

sion of the gravity knife and were taken to a nearby

police station, where they were held in custody. Still

believing that the vehicle had been stolen,® Officers

O’Malley and Kelly had another officer drive it to the

stationhouse, where it was “vouchered” and inven-

5 Narday, who was one of petitioner’s loanshark victims,

appeared at the suppression hearing and testified that he had

often lent the Cadillac to petitioner (Pet. App. 4a n.3, 46a).

The district court disbelieved this testimony in part, and

found it probable that petitioner had taken the Cadillac when

Narday was unable to meet his loanshark payments (Pet.

App. 58a). Under the circumstances, the district court found

that the police officers had probable cause to believe that the

vehicie was stolen (Pet. App. 47a, 56a, 61a-62a).

6 The district court noted that the officers were justified in

having the vehicle impounded even if the vehicle had not

been stolen. It was illegally parked on a busy street during

rush hour and was a traffic hazard (Pet. App. 56a). There

was also a possibility that Julian Mitchell, the third accomplice

in the stolen travelers’ check ring, might return and tamper

with the vehicle or its contents.

‘*

é ¢

a

$:

7

toried under New York City Police Department reg-

ulations (I-Tr. 18-19).”. Among other items, the in-

ventory yielded a .32 caliber starter’s pistol, a simu-

lated revolver, a police radio scanning receiver, a

B. Altman’s sweater, a second book of stolen thav-

elers’ checks, and, in the rear passenger compart-

ment, two unlocked briefcases.

The briefcases were taken: into the police station

and inventoried without protest in the presence of

petitioner, who was in a nearby detention cell (Pet.

App. 5a, 48a-49a). One of the briefcases contained

four bankbooks, three of which bore names other than

petitioner’s, as well as other documents that O’Malley

immediately recognized as loansharking records and

Studio One Massage Parlor prostitution records (Pet.

App. 5a-6a, 48a-49a).

3. The district court denied petitioner’s motion to

suppress the evidence seized from the car. The court

held that the search was a proper inventory search

following an arrest with probable cause. The court

stated (Pet. App. 56a-60a) that the standard inven-

tory procedures used by the New York City police

had been approved by courts in several jurisdictions

7 Officer O’Malley testified that they inventoried the con-

tents of the automobile “[f]or our own personal safety and

other officers’ safety, to safeguard anything of any value

that may be in it for the owner of the property, and to be sure

that there could be no false claims made against the police

department as far as missing money, jewelry, or anything of

that nature. The reason we thumb through everything, it

is quite often that there is money, U.S. currency, folded up

and placed in between places. The bankbook, for instance,

could have money within the pages of it” (II-Tr. 66).

8

and were of the type approved by this Court in South

Dakota v. Opperman, 428 ,§J.S. 364 (1976).

The court of appeals. affirmed, holding that the

police officers had probable cause under exigent cir-

cumstances to search the contents of the car and

that, under this Court’s decision in Chambers v.

Maroney, 399 U.S. 42, 50-52 (1970), the New York

City police officers had engaged in a permissible in-

vestigative search (Pet. App. 8a-12a, 13a-15a).° The

court rejected petitioner’s contention that the war-

rantless search of the briefcase contained in the auto-

mobile was invalid under this Court’s decision in

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

court observed, moreover, that the search in this

case predated Chadwick by nearly two years (Pet.

Awp. 12a-18a) and that Chadwick was not to be

applied retroactively, citing United States v. Reda,

563 F.2d 510 (2d Cir. 1977), cert. denied, 485 U.S.

973 (1978).°

4. Petitioner filed a petition for rehearing, which

was denied on May 25, 1979 (Pet. App. 65a). After

this Court’s decision in Arkansas v. Sanders, No.

77-1497 (June 20, 1979), petitioner filed a motion

to set aside the order denying his petition for rehear-

® The court of appeals found it unnecessary to rely on the

post-arrest inventory rationale on which the district court

had based its decision (Pet. App. 13a).

* Judge Meskill filed a concurring opinion in which he

reasoned that the nonretroactivity of Chadwick was a suffi-

cient basis upon which to decide this case. He preferred “to

leave exploration of the effect of Chadwick on vehicle

searches, whether ‘inventory’ or ‘investigative’ for a case to

which Chadwick is clearly applicable” (Pet. App. 35a).

t

—

9

ing, asking the court of appeals to reconsider its deci-

sion in light of Arkansas v. Sanders (Pet. App. 72a).

The government responded to petitioner’s motion, ar-

guing that Sanders, like Chadwick, should not be

applied retroactively. The court of appeals thereafter

denied petitioner’s motion to reconsider the denial

of rehearing.

ARGUMENT

1. Petitioner challenges the admission of evidence

discovered in the briefcase that was taken from the

back seat of the impounded aytomobile that he had

been driving at the time of his arrest. The search of

the briefease was sustained by the district court as

a valid inventory search, by the court of appeals

majority as a lawful investigative search founded

upon probable cause, and by Judge Meskill, concur-

ring, on the ground that the decision in United States

v. Chadwick, supra, should not be given retroactive

effect.

The question presented by petitioner regarding the

search of the briefcase (Pet. 4) concerns its lawful-

ness under the principles of Chadwick and Arkansas

v. Sanders, supra. His discussion of the issue is di-

vided into two points: first he contends (Pet. 14-21)

that the search was not valid as an investigatory

search upon probable cause under the principles of

Chadwick and Sanders and (Pet. 22-28) that those de-

cisions should be given full retroactive application;

second he argues (Pet. 39-37) that the inventory search

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

(1976), should not be construed to permit inventories

10

of the contents of briefcases or luggage lawfully

seized by the police and (Pet. 37-45) that it is im-

proper to sustain the search as a valid investigatory

search when it was conducted for inventory and not

investigatory purposes. These contentions do not war-

rant review by this Court in the context of the in-

stant case.

a. There is no occasion for the Court to review this

case for the purpose of determining whether a prob-

able cause search of a briefcase seized from an auto-

mobile may be undertaken without a warrant; we

assume arguendo that the court of appeals’ major-

ity’s conclusion that it may was incorrect in light

of Sanders. The critical issue is not whether the

warrantless search violated the Fourth Amendment

but whether, in light of the fact that it took

place two years before the decision in Chadwick and

four years before that in Sanders, the teaching of

those decisions should be retroactively applied to in-

validate this search.

In United States v. Peltier, 422 U.S. 531 (1975),

the Court made clear that decisions declaring certain

police practices to be violative of the Fourth Amend-

ment should not be given retroactive effect even

though they may not have overruled any prior deci-

sion, but simply clarified an unsettled question. There

is no suggestion in this case that the officers acted

in bad faith or in knowing disregard of their con-

stitutional obligations, and petitioner does not con-

tend that the court’s decision here was inconsistent

with prior Second Circuit or New York law. Accord-

——

ry

11

ingly, as Judge Meskill concluded (Pet. App. 35a-

37a), Peltier dictates that the evidence seized from

petitioner’s briefcase was properly admitted at his

trial. 2

Petitioner seeks to distinguish this case from Peltier

on the ground that Chadwick and Sanders simply

applied settled doctrine and rejected “novel Fourth

Amendment principles argued by the Government”

(Pet. 23). But the very fact that two outstanding

jurists such as Judges Friendly and Mansfield could

have concluded, even after Chadwick, that no warrant

was required plainly belies petitioner’s suggestion.

Moreover, this Court too, several years before Chad-

wick, recognized this as a controversial and unsettled

question. As Mr. Justice Stewart stated in the plural-

ity opinion in Coolidge v. New Hampshire, 403 U.S.

443, 474-475 (1971) (footnotes omitted) :

Some have argued that a determination by a

magistrate of probable cause as a precondition

of any search or seizure is so essential that the

Fourth Amendment is violated whenever the

police might reasonably have obtained a warrant

but failed to do so. Others have argued with

equal force that a test of reasonableness, applied

after the fact of search or seizure when the

police attempt to introduce the fruits in evidence,

affords ample safeguard for the rights in ques-

tion, so that “[t]he relevant test is not whether

it is reasonable to procure a search warrant, but

whether the search was reasonable.”

Both sides to the controversy appear to recog-

nize a distinction between searches and seizures

that take place on a man’s property—his home or

12

office—and those carried out elsewhere. It is ac-

cepted, at least as a matter of principle, that a

search or seizure carried out on a suspect’s prem-

ises without a warrant is per se unreasonable,

unless the police can show that it falls within

one of a carefully defined set of exceptions based

on the presence of “exigent circumstances.” As

to other kinds of instrusions, however, there has

been disagreement about the basic rules to be

applied, as our cases concerning automobile

searches, electronic surveillance, street searches

and administrative searches make clear.

On the authority of this Court’s decision in Peltier,

the courts of appeals generally have concluded that

Chadwick should not be applied retroactively to in-

validate warrantless searches based on probable cause

of sealed containers found in a defendant’s car at the

time of arrest. See, e.g., United States v. Calandrella,

Nos. 78-5341, 78-5342 (6th Cir. Aug. 31, 1979), slip

op. 22-28; United States v. Mancillas, 580 F.2d

1301, 1306-1307 (7th Cir.), cert. denied, 439 U.S.

958 (1978); United States v. Choate, 576 F.2d 165,

182 n.20 (9th Cir.), cert. denied, 489 U.S. 953

(1978); United States v. Reda, 563 F.2d 510, 512

(2d Cir. 1977), cert. denied, 485 U.S. 973 (1978) ;

United States v. Montgomery, 558 F.2d 311, 312

(5th Cir.), cert. denied, 434 U.S. 927 (1977). Only

the Eighth Circuit has held that Chadwick applies

retroactively. United States v. Schleis, 582 F. 2d 1166,

1173-1174 (1978) (en banc) ; United States v. Stevie,

582 F. 2d 1175, 1178 (1978) (en banc), cert. denied,

No. 78-971 (June 25, 1979). We did not view the

13

conflict among the circuits created by Schleis and Stevie

to be sufficiently important to warrant review by this

Court, and accordingly did not seek certiorari in them

on the Chadwick retroactivity issue,” and ‘nothing

that has occurred since has altered our judgment on

this matter. The decision in Chadwick is now nearly

two and a half years old, and there remain relatively

few cases likely to be affected by the retroactivity

question.

b. With regard to petitioner’s attack upon the in-

ventory search rationale relied upon by the district

court, we acknowledge that the issue he presents is

one of some substance that was not conclusively set-

tled by Opperman (see Pet. 35-37). Nevertheless,

it seems plain that this case does not afford a

suitable vehicle. for resolution of that issue. The

court of appeals did not discuss or decide the issue

in this case, and this Court too would presumably

not have occasion to reach the issue unless it first

dealt with the Chadwick retroactivity issue and re-

solved it in petitioner’s favor—an undertaking that

we believe would not justify expenditure of this

Court’s limited resources and that, in any event,

likely would be resolved adversely to petitioner.

10 Contrary to petitioner’s suggestion (Pet. 25), the question

of the retroactivity of Chadwick was not raised in our petition

in Stevie as a ground upon which review should be granted,

and, of course, to the extent the Court considered the issue

to be present, it did not see fit to review it. Moreover, the

State did not present the issue in its petition in Sanders,

although the search in that case antedated Chadwick, and the

Court did not address the issue there.

14

Petitioner’s argument that the court of appeals

could not properly sustain the search of the briefcase

on an investigatory search rationale when it was

undertaken for inventory purposes is easily refuted.

This Court made clear in Scott v. United States, 436

U.S. 128, 136 (1978), that the existence of a con-

stitutional violation “turns on an objective assess-

ment of the officer’s actions in light of the facts and

circumstances confronting him at the time. Subjec-

tive intent alone * * * does not make otherwise law-

ful conduct illegal or unconstitutional.” See also

Coolidge v. New Hampshire, supra, 403 U.S. at 455,

458, 464. While in this particular case the officers may

not have been relying upon their right under New York

and Second Circuit law at the time to conduct a war-

rantless investigatory search under these circum-

stances, since they believed their acts to be a lawful

inventory search, the retroactivity of Fourth Amend-

ment decisions cannot, at least in the absence of bad

faith, turn upon the subjective beliefs of the officers

conducting a particular search regarding the source

of their authority to do so."

2. Petitioner contends (Pet. 46-58) that joinder

of the counts charging tax violations (Counts Three

through Seven) with the extortion and obstruction of

11 Here, the officers were not only acting in accordance with

established Police Department procedures, but against a back-

ground of New York and Second Circuit law upholding war-

rantless searches of closed containers’ s¢ized from impounded

vehicles. E..9., United States v. Zaicek, 519 F.2d 412, 413-415

(2d Cir. 1975) ; United States v. Tramunti, 518 F.2d 1087,

1100 (2d Cir.), cert. denied, 423 U.S. 882 (1975); People vy.

Sullivan, 29 N.Y.2d 69, 272 N.E. 2d 464, 828 N.Y.S. 2d 945

(1971). t

15

justice counts (Counts One and Two) was improper

under Rule 8(a) and prejudicial under Rule 14 of the

Federal Rules of Criminal Procedure. These conten-

tions are not substantial.

Rule 8(a) permits the joinder of offenses where

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 con-

stituting parts of a common scheme or plan.” The

court of appeals correctly held that, if the joinder

of counts in this case was improper under Rule 8

(a), it was harmless error and affords no basis for

reversal of petitioner’s conviction (Pet. App. 26a-27a

n.11)." The court correctly noted that much of the

evidence tending to prove the various charges would

have been admissible at separate trials even if the

counts had been severed. See, ¢.g., United States v.

Turbide, 558 F.2d 1053, 1061-1062 (2d Cir.), cert.

denied, 434 U.S. 934 (1977). For example, evidence

concerning the loansharking and extortion charge of

Count One was necessary to establish the amount and

source of petitioner’s income for the purpose of proving

12 Petitioner challenges (Pet. 46-48) the court of appeals’

conclusion (Pet. App. 26a n.11) that he “did not raise the

question of misjoinder” under Rule 8(a). He claims that he

preserved his Rule 8 objection in the district court (Pet. App.

74a-75a) and was not foreclosed from raising it on appeal.

But the court was concerned with petitioner’s failure on ap-

peal to raise a claim under Rule 8(a) (see Appellant's Br.

30-84) along with his claim for severance from prejudicial

joinder under Rule 14. The court of appeals correctly found

that, having failed to preserve the claim on appeal, petitioner

had abandoned his claim of misjoinder under Rule 8(a).

16

his income tax violations (Counts Six and Seven), and,

in this sense, these counts were connected by a “com-

mon scheme or plan.” See Baker v. United States,

401 F.2d 958, 971-974 (D.C. Cir. 1968), cert. denied,

400 U.S. 965 (1970). Evidence concerning the false

income tax return counts (Counts Three through

Five) concerned “similar” offenses (Rule 8(a)) for

different income tax years and would thus have been

admissible to show willfulness or lack of mistake on

the other tax counts. Similarly, evidence that peti-

tioner obstructed justice (Count Two) would have

been admissible to show consciousness of guilt, lack

of mistake, and intent as to all of the income tax

eounts (Counts Three through Seven). See United

States v. Ritch, 583 F.2d 1179 (1st Cir.), cert. denied,

439 U.S. 970 (1978). The proof as to all of the counts

was thus interrelated and overlapping (Pet. App. 27a

n.11), and any misjoinder of the tax counts under Rule

8 was harmless (7bid.).

Rule 14 provides, in pertinent part, that “[i]f it

appears that a defendant or the government is preju-

diced by a joinder of offenses * * * in an indictment

* * * the court may order an election or separate

trials of counts * * * or provide whatever other relief

justice requires.” For the same reason that the

joinder of offenses was harmless under Rule 8, the

court of appeals correctly concluded that petitioner

had failed to establish that he suffered substantial

prejudice from the joinder of the offenses under Rule

14. See United States v. Niederberger, 580 F.2d 63,

66-67 (3d Cir.), cert. denied, 439 U.S. 980 (1978).

17

The district court thus did not abuse its discretion

in refusing to sever the counts for separate trials.

3. Petitioner claims (Pet. 59-66) that the district

court failed properly to instruct the jury that ob-

struction of justice must be done “corruptly” to con-

stitute an offense under 18 U.S.C. 1503."* Petitioner

failed to object to this portion of the charge at trial;

he claims here that the alleged defect in the charge

was plain error. The court of appeals correctly

ruled, however, that the charge, viewed as a whole,

clearly and adequately apprised the jury that it was

necessary to find that petitioner had acted “cor-

ruptly” in attempting to influence the testimony of

grand jury witnesses (Pet. App. 30a-3la).* Con-

1818 U.S.C. 1503 provides in pertinent part:

Whoever corruptly, or by threats or force, or by any

threatening letter or communication, endeavors to in-

fluence, intimidate, or impede any witness, in any court

of the United States * * * shall be fined * * * or im-

prisoned * * *,

14Tn the questioned portion of the charge the court stated

(A. 121a-122a) (emphasis supplied) :

The indictment specifically charges the defendant with

“corruptly” endeavoring to influence the designated wit-

ness or witnesses. The word “corruptly” does not add an

additional element to the crime.

I charge you as a matter of law that any unauthorized

endeavor to influence a witness in the performance of

his duty to testify violates the law. It is the endeavor,

not the corruption, which is the gist of the crime.

But elsewhere in its charge the district court made it clear

that “corruptly” was an element of the crime. Thus, the

trial court advised the jury (A. 120a-121a) :

* * * The defendant must corruptly endeavor, that is

deliberately and by his action, to influence the witness to

18

sidered in the context of the trial and the other por-

tions of the charge, the jury instruction was not

plain error affecting petitioner’s substantial rights.

See United States v. Park, 421 U.S. 658, 674-676

(1975).

4. Petitioner contends (Pet. 67-76) that his sen-

tence was improper because imposing a cumulative

sentence of nine years on three false income tax return

counts (Counts Three through Five) and an addi-

tional 12 years on the extortion and obstruction of

justice counts (Counts One and Two) was illogical and

inconsistent.

But petitioner received a sentence on each count

that was within the statutory maximum. “ ‘If there

is one rule in the federal criminal practice which is

firmly established, it is that the appellate court has

no control over a sentence which is within the limits

testify falsely, evasively, or to corruptly have the witness

assert their [sic] Fifth Amendment privilege when other-

wise they would testify.

The law is designed to prevent a miscarriage of justice

by corrupt methods. The statute extends to any corrupt

endeavor to interfere with the presentation of matters

to a grand jury.

Moreover, the court added immediately after the challenged

instruction that (A. 122a)

[a]Jny * * * endeavor, whether successful or not, which

is made for the purpose of corruptly influencing a wit-

ness is condemned.

Viewed as a whole these instructions adequately apprised

the jury that it was necessary to find that petitioner had

acted “corruptly” in order to find him guilty of obstructing

justice in Count Two.

19

allowed by a statute.’” Dorzynski v. United States,

418 U.S. 424, 440-441 (1974), quoting Gurera v.

United States, 40 F.2d 338, 340-341 (8th Cir. 1930).

See Gore v. United States, 357 U.S. 386, 393 (1958).

Moreover, the court of appeals noted that the peti-

tioner had an extensive record of criminal convictions

(Pet. App. 32a-33a), and petitioner does not chal-

lenge the propriety of any information considered

by the court in imposing his sentence. Compare

United States v. Tucker, 404 U.S. 448, 446-447

(1972). The district court did not act beyond its

discretion in imposing sentence, for, as the court of

appeals found, on this record the district judge could

reasonably have imposed a greater cumulative sen-

tence than he in fact did (Pet. App. 33a).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

M. CARR FERGUSON

Assistant Attorney General

ROBERT E. LINDSAY

JAMES A. BRUTON

Attorneys

NOVEMBER 1979

W ov. S. GOVERNMENT PRINTING OFFicE; 1979 304222 111