Opposition — Jones v. United States

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No. 79-373 i, QEC ag STS

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Iu the Supreme Court of the United Staten

OCTOBER TERM, 1979

DONALD JONES, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KATHERINE WINFREE

Attorney

Department of Justice

Washington, D.C. 20530

Page

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CITATIONS

Cases:

Alderman v. United States, 394 U.S. 165.. 16

Carroll v. United States, 267 U.S. 182...... 17

Chambers v. Maroney, 399 U.S. 42 .......... 16-17

Little v. United States, 331 F.2d 287, cert.

I, TU TT TG onscreen 22

Marshall v. United States, 486 F.2d 155.. 22

McDonald vy. Pless, 238 U.S. 264 .............. 18

Michigan v. Tyler, 4386 U.S. 499 .............. 10

Mincey v. Arizona, 487 U.S. 385 -............. 10

Morgan v. United States, 399 F.2d 93,

cert. denied, 393 U.S. 1025 —....00000000.. 22

Rakas v. Illinois, 439 U.S. 128 .................. 16

Remmer v. United States, 347 U.S. 227.... 17

Remmer v. United States, 350 U.S. 377.... 23

Steigler v. Anderson, 496 F.2d 793, cert.

denied, 419 US. 1062 ............................ 15

Texas v. White, 423 U.S. 67 ..........22........ 16

United States v. Albert, 595 F.2d 283,

cert. denied, No. 79-207 (Nov. 26,

Ran ENA I ee ARNT SE Ne L OSS RUC ER SS 22

United States v. Boscia, 573 F.2d 827,

cert. denied, 486 U.S. 911 .......0022 2. 22

It

Cases—Continued

United States v. Brand, 556 F.2d 13812,

cert. denied, 434 U.S. 1068 -...................

United States v. Fleming, 594 F.2d 598,

cert. denied, No. 78-6835 (June 11,

Ieee et St ESTEE Oe ete ee

United States v. Green, 474 F.2d 1385,

cert. denied, 414 U.S. 829 ......................

United States v. Peltier, 422 U.S. 581......

Statutes:

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QE U.S.C. 5173 (a) .cncecccvescocesecnescoveccoveeconeee

Svs. 1h)

26 U.S.C. 5205 (a) (2) -cooceccsscccoeescoeeceoeeeeoee-

26 U.S.C. 5601 (a) (1) -cnnccccoecccoeeccneessneesnnee-

26 U.S.C. 5601 (a) (2) caeeccoeeccneeccoeecseecooeee

26 U.S.C. 5601 (a) (4) cccoeccccccccoeeccoeeecneeeeoee-

26 U.S.C. 5601 (a) (8) caeccceccccocecsseecceeeeneeee

OO icles

Miscellaneous:

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18

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-373

DONALD JONES, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

9a) is reported at 597 F.2d 485. The opinion of the

district court (Pet. App. 1la-22a) is reported at 390

F. Supp. 1017.

JURISDICTION

The judgment of the court of appeals was entered

on June 20, 1979. A petition for rehearing was de-

nied on August 6, 1979 (Pet. App. 10a). The peti-

(1)

2

tion for a writ of certiorari was filed on September 5,

1979. The jurisdiction of this Court is invoked under

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

QUESTIONS PRESENTED

1. Whether petitioner’s conviction should be re-

versed because of the use at trial of evidence obtained

by federal officers in a warrantless search of peti-

tioner’s premises.

2. Whether petitioner is entitled to a new trial

because a juror was offered a bribe during the trial

that resulted in his conviction.

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Florida, petitioner

was convicted of possessing an unregistered distillery,

in violation of 26 U.S.C. 5179(a) and 5601(a) (1),

engaging in the business of a distiller without filing

an application and receiving notice of registration,

in violation of 26 U.S.C. 5171(a) and 5601(a) (2),

carrying on the business of a distiller without having

given bond, in violation of 26 U.S.C. 5178(a) and

5601(a) (4), engaging in the business of a distiller

with intent to defraud the United States of the tax

on the spirits distilled, in violation of 26 U.S.C. 5602,

and conspiracy to commit those offenses, in violation

of 18 U.S.C. 371." He was sentenced to consecutive

1 At the close of the government’s case, the district court

dismissed one count charging petitioner with unlawful produc-

tion of distilled spirits, in violation of 26 U.S.C. 5601 (a) (8)

(Tr. 784). The jury acquitted petitioner on one count

3

terms of four years’ imprisonment on the conspiracy

count and three years’ imprisonment on the posses-

sion count. He was also sentenced to concurrent terms

of three years’ imprisonment on each of the remain-

ing counts, those sentences to be served concurrently

with the sentences imposed on the conspiracy and

possession counts.” The court of appeals affirmed

(Pet. App. la-9a).

1. Before trial, petitioner and co-defendants Hern-

don and Thomas Jones moved to suppress evidence

seized from premises leased by petitioner in a rural

area of Dade County, Florida. The evidence adduced

at the suppression hearing showed that at approxi-

mately 7:30 p.m. on April 12, 1974, two local police

officers were dispatched to 19955 S.W. 248th Street,

the location of the house and barn rented by peti-

tioner. The officers were sent to investigate a tele-

phone report that shots had been fired in the area

(Pet. App. 12a). As the officers approached the ad-

dress, they were met by a woman who advised them

that one of the participants in the alleged shooting

charging him with the possession and transfer of unstamped

distilled spirits, in violation of 26 U.S.C. 5205(a) (2). Co-

defendant Bobby J. Herndon was convicted on the same

charges as petitioner. Co-defendant William Mimbs was ac-

quitted on all counts. Co-defendant Thomas Jones was found

incompetent, and his case was therefore severed from peti-

tioner’s before trial. Thomas Jones died soon after petitioner’s

trial was completed. .

2 Petitioner was convicted on August 1, 1975, but failed to

appear for sentencing on August 20, 1975. He remained a

fugitive for nearly three years and was not sentenced until

June 23, 1978, following his apprehension.

4

was sitting in an automobile parked nearby (id. at

13a). The officers found co-defendant Thomas Jones

sitting in a car parked at the corner specified by

the unidentified woman (2bid.). A bystander identi-

fied Jones as a resident at the address to which the

officers had been sent and a participant in the alleged

shooting incident (7bid.).

Officer Robert Dwyer proceeded to the house while

Officer David Charter remained with Jones, who was

not yet under arrest. Several neighbors informed

Officer Dwyer that they had observed three white

males leave the barn shortly before the shots were

fired. According to the reports, one of the men

entered an automobile and drove it around to the

front of the house and the other two men went inside

the house. When they came out, the shots were fired

in the immediate area (Pet. App. 13a). After re-

ceiving this information, Officer Dwyer heard the

telephone ring inside the house. The officer looked

through the window into the living room and then

entered the house and answered the telephone (ibid.).°

A voice on the other end of the line said, “You hit

Bobby Joe and now you’re going to prison” (S.H.

jf By

Officer Dwyer looked through the house for injured

persons or suspects. Finding none, Dwyer called

Officer Charter by radio and asked him to come to the

3’ The door of the house was unlocked and partially open

(Pet. App. 13a).

4 “S.H.” refers to the transcript of the pretrial hearing on

petitioner’s motion to suppress.

5

barn (Pet. App. 14a). By this time, Officer Charter

had arrested Thomas Jones for loitering and prowling

“because he could not explain his presence in the

area” (ibid.). Officer Charter arrived at the barn

with Jones in the back seat of his patrol car. The two

officers entered the barn through a door that was

four to six inches open (ibid.). Equipped with flash-

lights, the officers searched the barn for possible vic-

tims of the shooting. During the brief search, the

officers saw what appeared to be a still in the rear

portion of the barn (ibid.). The officers called for

additional assistance and were joined shortly by local

police lieutenant Tom Lyons. Lieutenant Lyons en-

tered the barn with the two officers and observed the

still. He then telephoned the police station and asked

that Agent George Nowicki of the Bureau of Alcohol,

Tobacco and Firearms be notified of the discovery of

the still (7bid.).

ATF Agents Nowicki and Jimmy Harmon arrived

at the barn at approximately 10 p.m. (Pet. App.

15a). Agent Nowicki read Thomas Jones his rights.

On a socket wrench head taken from Jones when he

was searched incident to his arrest, Agent Nowicki

found “mash” from a distilling process (ibid.).

Agent Nowicki then asked Jones to remove his shoes

for possible evidence, and Jones did so (S.H. 116).

Agents Nowicki and Harmon entered the barn and

saw the still. They also noticed jugs of whiskey

stacked near the vats of the still (S.H. 305). At

trial, Agents Nowicki and Harmon testified that they

found 580 gallons of clear white whiskey in five-gallon

6

plastic jugs standing in front of the still (Tr. 446-

447, 458-459). The agents observed that an elec-

trically powered water pump near the front of the

barn supplied the still with water.

The agents followed the pump’s electric wires from

the barn into the house. In an open closet next to the

electrical panel where the wires terminated, the

agents found several gas company receipts.’ In addi-

tion, the agents seized a telephone directory from a

partially open table drawer in the kitchen’ and a

pair of shoes that were on the bedroom floor and had

mash on the soles (Pet. App. 15a; S.H. 118-120).

The agents then looked into a truck-camper parked

in front of the house (Pet. App. 16a). Inside the

truck were cardboard cartons with labels identical to

those found on similar cartons that the agents had

seen next to the still.’ The agents opened the truck

and found that some of the cartons were soaked with

whiskey and that the inside of the truck smelled of

whiskey. A search of the glove compartment revealed

an auto repair receipt signed by co-defendant Mimbs

(ibid.; S. H. 120-122). Leaving the truck, the agents

went behind the house and discovered a small shed.

5 The receipts reflected several purchases of butane gas in

large amounts sufficient for the manufacture of illicit whiskey

(see, e.g., Tr. 237-279, 282).

® Several local telephone numbers, including petitioner’s,

were written on the inside cover of the directory (S.H. 119).

7 At trial, the government showed that the cartons had

contained plastic jugs used to bottle the illicit whiskey (Tr.

63-82).

7

They entered the shed and found 70 gallons of

whiskey packaged in 14 five-gallon plastic jugs (S.H.

124-126, 157-158). The agents then returned to the

automobile in which Thomas Jones had been sitting

when he was first seen by the county police officers.

Inside, the ATF agents saw a six-gallon green plastic

jug similar to one found near the still (Pet. App.

16a; S.H. 126, 150-151). Under the front seat of the

car, the agents discovered a hydrometer (Pet. App.

16a; S.H. 129).

2. The district court denied the motion to sup-

press. The court found that the county police officers’

discovery of the still was lawful, because it occurred

during the course of a lawful search for possible vic-

tims of the alleged shooting incident. “Being in a

place where they had a right to be, the officers found

the still because it was in plain view” (Pet. App.

17a-18a). The district court also sustained the fed-

eral agents’ subsequent search of the barn because it

“was based upon a legal search by the county of-

ficers * * * [and] was directly related to the object

of the county search” (7d. at 19a). Relying on United

States v. Green, 474 F.2d 1385 (5th Cir.), cert.

denied, 414 U.S. 829 (1973), the court explained

(Pet. App. 21a):

The rationale which justifies the federal search

is that the subsequent intrusion does not signifi-

cantly increase a preexisting legitimate inter-

ference with a protected interest. * * * [T]he

subsequent search does not significantly add to

the invasion of privacy caused by the initial

8

search * * *[. T]he successive intrusions [were]

close in time, practically identical in nature

and analytically and factually separable only

because made by two different sovereigns.

The court did not separately discuss the validity of

the search of Thomas Jones incident to his arrest or

the validity of the federal agents’ search of the house

rented by petitioner, the truck-camper parked out-

side, the shed behind the house, or the car in which

Jones was sitting when first seen by the county police

officers.

3. On August 3, 1975, two days after the jury

returned its verdict, juror Barbara Toomer was con-

tacted by Debra Jones, petitioner’s wife, and a man

later identified as Willie Lucas. Lucas solicited the

juror’s agreement that petitioner had been “shang-

haied.” The juror reported this incident to the dis-

trict court, and, on August 4, the court ordered the

United States Attorney and the ATF to conduct an

investigation (Pet. App. 2a).

On August 5, petitioner filed a motion to interview

the jurors. In support of the motion, petitioner sub-

mitted an affidavit in which Lucas described certain

post-verdict statements allegedly made by another

juror, Arlie Crooms. Lucas stated that Crooms had

told him that she did not feel the proper verdict had

been rendered, that there was no proof that petitioner

owned the still, and that she had voted for conviction

only because of pressure from other jurors and her

own illness during the deliberations (id. at 2a-3a).

During the court-ordered investigation, ATF agents

interviewed all the jurors. Juror Irma Reboso re-

9

vealed that during the trial Crooms told her that she,

Crooms, had been offered $1000 to vote for acquittal.

When asked about this reported bribe offer, Crooms

initially denied any such improper approach. During

a subsequent interview, however, she recanted and

informed the ATF that Lucas had offered her a

bribe to vote to acquit petitioner (7d. at 3a).

On August 20, 1975, the district court conducted a

hearing at which jurors Toomer, Reboso, and Crooms

testified. Crooms acknowledged telling Reboso of the

bribe offer. She stated, however, that they had not

discussed the matter further and that she had “de-

cided to forget about it” (H. Tr. 15-19).*° Reboso

confirmed her conversation with Crooms (H. Tr.

28-32). She testified that she had paid little attention

to the incident, that she had not discussed it with

anyone else, and that it had not affected her ability to

render a fair and impartial verdict (H. Tr. 33-38).

Toomer related the details of the post-verdict ap-

proach by Lucas and petitioner’s wife (H. Tr. 40-

43). Although afforded the opportunity to do so,

petitioner’s counsel did not question any of the three

juror witnesses. In particular, he did not ask Crooms

or Reboso whether their votes were affected in any

way by the bribe offer.

At the conclusion of testimony, petitioner moved to

set aside the verdict and, apparently, for a new trial

(H. Tr. 44-45; Pet. App. 4a n.1). Petitioner’s mo-

8Crooms also corroborated many of the allegations in

Lucas’ affidavit concerning her comments after the trial (H.

Tr. 19-23).

10

tion did not allege specifically that the jury was im-

properly biased against him as a result of the bribe

attempt during trial. Rather, the motion seemed to

concentrate on the doubts expressed by Crooms after

trial concerning the correctness of the verdict. The

district court denied petitioner’s motion, stating that

“Tt}]here is nothing appearing from the testimony

of these [juror] witnesses to indicate a valid ground

to challenge the verdict in this case” (H. Tr. 51).

4, On appeal, petitioner contended that all the evi-

dence seized by the ATF agents should have been

suppressed. Petitioner argued that, because the local

police officers’ search of the house and barn estab-

lished that no victims or suspects in the alleged

shooting incident were in either building, the federal

agents’ subsequent warrantless entry was not sup-

ported by exigent circumstances and was therefore

unlawful. In support of this proposition, petitioner

relied heavily on this Court’s decisions in Michigan v.

Tyler, 486 U.S. 499 (1978), and Mincey v. Arizona,

437 U.S. 385 (1978). Petitioner did not separately

attack any specific portions of the federal agents’

search as unlawful, distinct from the initial search of

the barn. See Appellant’s Br. 20-21, 32-41; Reply

Br. 11-18.

Citing United States v. Green, supra, and United

States v. Brand, 556 F.2d 1312 (5th Cir. 1977), cert.

denied, 434 U.S. 1063 (1978), the court of appeals

sustained the challenged search and seizures for the

reasons stated by the district court (Pet. App. 8a-

9a). Without deciding whether Tyler and Mincey

11

are in any way inconsistent with Green and Brand,

the court of appeals ruled that this Court’s 1978

decisions “should not be applied retroactively on the

facts of this case” (id. at 9a).

Petitioner also argued that he is entitled to a new

trial because the court-ordered posttrial investigation

showed that Lucas attempted to bribe one of the

jurors during trial and that the affected juror told

at least one other juror of the bribe offer. The court

of appeals rejected this contention (Pet. App. 5a-8a)

without addressing the question whether the bribe

attempt unfairly prejudiced petitioner’s position at

trial. Treating petitioner’s appeal as an appeal from

the denial of the oral new trial motion by counsel

at the August 20, 1975 hearing, the court stated that,

under Fed. R. Crim. P. 38, a new trial motion made

more than seven days after verdict ‘cannot be enter-

tained unless it is based on newly discovered evi-

dence” (Pet. App. 5a). The court further declared

that a new trial motion based on newly discovered

evidence can succeed only if “that evidence [was] in

fact unknown to the movant until after the verdict”

and the movant’s “failure to discover [the evidence]

prior to verdict was not due to his lack of diligence”’

(id. at 6a-7a). Because petitioner “presented no evi-

dence whatever on the issues of his lack of knowledge

or his due diligence” and, in fact, did not even dis-

claim pre-verdict knowledge of the bribe offer (id. at

8a), the court of appeals concluded that it was un-

necessary to inquire into possible prejudice arising

from the attempted jury tampering.

12

ARGUMENT

1. Petitioner now repeats his argument (Pet. 15-

20) that all the evidence seized by the ATF agents

should have been suppressed because no exigent cir-

cumstances justified the agents’ warrantless search

of any of the areas in or around the house and barn

on the leased premises. Petitioner again fails to

differentiate among the various areas entered by

the federal agents and the various kinds of evi-

dence seized. Instead, he argues simply that, because

the county police officers’ search of the house and

barn uncovered neither suspects nor victims nor evi-

dence of the alleged shooting, there was no justifi-

cation for a later warrantless entry by federal agents

anywhere on the premises. Apparently conceding for

the sake of argument that the ATF agents’ search

and seizures were proper under Fifth Circuit law at

the time they occurred, petitioner contends that this

Court’s subsequent decisions in Michigan v. Tyler,

supra, and Mincey v. Arizona, supra, demonstrate

the illegality of the agents’ conduct. The court of

appeals found it unnecessary to address that argu-

ment, because it held that, to the extent Tyler and

Mincey might be thought to render invalid searches

previously permissible under Fifth Circuit law, those

decisions should not be applied retroactively. See

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

cases cited therein. In this connection, petitioner now

presents only the question whether the court of ap-

peals erred in its retroactivity ruling; he does not

ask this Court to review the lawfulness of each

13

portion of the search performed by Agents Nowicki

and Harmon.

This case does not present a suitable occasion for

the Court to resolve whatever retroactivity issues

may arise from the decisions in Tyler and Mincey.

The primary incriminating evidence against peti-

tioner was seized in the search of the barn. There,

the county police and the federal agents found the

still, several hundred gallons of illegal whiskey, and

assorted paraphernalia used in the illicit distilling

operation. Petitioner conceded in the court of ap-

peals (Appellant’s Br. 11) that Officers Dwyer and

Charter acted lawfully in searching the house and

barn for suspects or victims in the reported shooting

incident. He does not withdraw that concession here.

The county officers discovered the still in the course

of their legal search of the barn. Under these cir-

cumstances, T'yler and Mincey provide no support for

petitioner’s objection to the federal agents’ entry and

search of the same building two or three hours later.

Neither in those cases nor in any other has this

Court suggested that a law enforcement officer who

observes contraband or probable illegal activity on

private premises where he has a right to be is con-

stitutionally precluded from inviting other officers to

join him in investigating the criminal behavior he

has discovered. Indeed, Tyler holds precisely the

opposite.

In Tyler, a local fire chief arrived at the scene of a

fire shortly after the blaze had been extinguished.

While firemen watered down the smoldering embers,

14

the chief was informed by one of his lieutenants that

two plastic containers of flammable liquid had been

found in the building. After the chief examined the

containers, he called a local police detective who

came to the scene and inspected the burned building.

The chief and the detective removed the containers

and took them to the fire station for safekeeping.

Approximately four hours later, after all the fire-

fighters had departed, the chief and his assistant

returned to the scene and made a cursory inspection

of the building. The assistant and the detective re-

turned again an hour later and conducted a more

thorough search during which they found and seized

significant additional evidence of arson. None of the

entries by the chief, his assistant, or the detective

was supported by a warrant. Nonetheless, the Court

held (486 U.S. at 510-511) that the searches con-

ducted at the close of the firefighting operation and

several hours later were lawful. After stating gen-

erally that fire “officials need no warrant to remain

in a building for a reasonable time to investigate the

cause of a blaze after it has been extinguished,” the

Court observed that the additional entries later in the

day ‘ were no more than an actual continuation of the

first, and the lack of a warrant thus did not invali-

date the resulting seizure of evidence” (id. at 510,

511).

The reasoning in Tyler is entirely consistent with

the Fifth Circuit’s approach in United States v.

Brand, supra, and United States v. Green, supra, on

15

which the court of appeals in the present case relied.

As the court stated in Brand (556 F.2d at 1317):

The [Fourth] amendment protects the citizen

against invasion of privacy. Once that interest

is invaded legally by an official of the State,

the citizen has lost his reasonable expectation

of privacy to the extent of the invasion. * * *

[A |dditional investigators or officials may there-

fore enter a citizen’s property after one official

has already intruded legally. * * * Later ar-

rivals may join their colleagues even though the

exigent circumstances justifying the initial en-

try no longer exist. * * *

See also Steigler v. Anderson, 496 F.2d 793, 797-798

(8d Cir.), cert. denied, 419 U.S. 1002 (1974).

Here, the ATF agents’ inspection of the still and

the related evidence of illegal activity in the barn

involved no further intrusion into an area in which

petitioner retained a legitimate expectation of pri-

vacy. Once the still had been lawfully discovered by

law enforcement personnel, petitioner no longer could

have had any legitimate expectation that the con-

tents of the still’s metal vats and the surrounding

plastic jugs would remain undisturbed. The ATF

agents’ seizure of incriminating evidence from the

barn was thus entirely proper.

For reasons that are easily understandable, peti-

tioner does not make any separate contention that

this Court should consider the retroactivity of Tyler

and Mincey solely for the effect those decisions may

have on the legality of some aspect of the federal

16

agents’ investigation other than the search of the

barn. Tyler and Mincey held that warrantless entries

or searches involving intrusions significantly different

from or broader than an initial lawful intrusion can-

not be justified solely on the basis of the initial entry.°

Petitioner might argue that a proper application of

the Fourth Amendment principles discussed in those

cases would cast doubt on the propriety of the ATF

agents’ seizure of evidence at one or more locations

outside the barn."” But petitioner does not advance

* Tyler refused to approve a warrantless police entry and

search of the burned building nearly a month after the fire,

and Mincey condemned an extensive four-day search of an

apartment in which an abortive drug transaction had led to

the murder of an undercover police officer. The State in

Mincey attempted unsuccessfully to defend the search on the

ground that it involved an invasion of privacy no more in-

trusive than the emergency police entry immediately after

the shooting to arrest the suspects and aid the victims.

10 Petitioner would not, in any event, be able to assert any

legitimate expectation of privacy in the items seized from

Donald Jones at the time of his arrest or in the car in which

the local police found Jones on their way to investigate the

shooting incident. He therefore could not raise any Fourth

Amendment objection to the introduction of evidence obtained

from those sources. Rakas Vv. Illinois, 489 U.S. 128 (1978);

Alderman v. United States, 394 U.S. 165, 174 (1969). The

ATF agents’ search of the truck-camper was lawful, because

the agents were properly present on petitioner’s premises

when they looked through the truck’s window and saw card-

board cartons similar to those found near the still in the barn.

The cartons and their labels, combined with the truck’s loca-

tion, gave the agents probable cause to believe that the truck

contained evidence of a crime. Under this Court’s decisions,

the ensuing entry and search were therefore proper. See

Texas V. White, 423 U.S. 67 (1975) ; Chambers v. Maroney,

17

any such argument, presumably because, even if ac-

cepted, it would be unavailing. The critical evidence

of petitioner’s guilt was found in the barn. As we

have shown, at least that portion of the ATF agents’

search was lawful, under Tyler as well as earlier

Fifth Circuit precedents. The evidence seized from

the house, the shed, the truck-camper, Donald Jones,

and the car in which he was sitting was either cumu-

lative or not connected with petitioner. In light of

the strong incriminating evidence discovered in the

barn, suppression of any or all of the evidence found

elsewhere could not reasonably have been expected to

affect the jury’s verdict.

2. Petitioner also contends (Pet. 9-15) that the

district court should have set aside the verdict and

granted a new trial because of the bribe offer to the

juror Crooms. Relying on Remmer v. United States,

347 U.S. 227 (1954), petitioner asserts that any

extraneous communication with one or more jurors

during trial is “presumptively prejudicial” and im-

399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132

(1925). The agents’ search of the house was not clearly more

intrusive than the previous, concededly lawful, entry by the

county police officers, and in any event produced little pro-

bative evidence of petitioner’s participation in the illegal

distilling operation. Finally, since the local officers apparently

did not search the shed behind the house for victims or

suspects in the alleged shooting, the ATF agents’ entry there

was arguably justifiable as a continuation of the investigation

into the reported shooting. Moreover, the 70 gallons of illegal

whiskey found in the shed could hardly have had any sub-

stantial independent effect on the jury’s decision, in light of

the much larger quantity of the same product found earlier

in the barn.

18

poses on the government the heavy burden of showing

that the contact was harmless to the defendant. Peti-

tioner ignores the several significant obstacles to

acceptance of his argument.

In the first place, there is considerable doubt

whether petitioner raised in the district court the

question of the bribe offer’s alleged prejudicial effect.

During the August 20, 1975 hearing prompted by the

posttrial contact with the juror Toomer by petition-

er’s wife and Lucas, petitioner’s counsel did not ques-

tion either Crooms or Reboso about the possible effect

on the jury’s deliberations of the bribe attempt di-

rected at Crooms. Counsel’s motion to set aside the

verdict at the close of the hearing (Pet. App. 4a n.1)

did not call the court’s attention to the harm allegedly

suffered by petitioner as a result of the bribe offer.

Rather, it seemed to concentrate on the representa-

tions in Lucas’ affidavit, corroborated by Crooms and

in part by Reboso, that Crooms was not feeling well

during the jury’s deliberations and voted to convict

petitioner at least in part because she wanted to go

home and feared that continued disagreement with

her fellow jurors would prolong her jury service

through a retrial of petitioner on the pending

charges. As the district court correctly held (H.

Tr. 46-51), such matters are not a proper basis for

impeachment of jury’s verdict. See Fed. R. Evid.

606(b); McDonald v. Pless, 238 U.S. 264 (1915).

Petitioner does not now suggest otherwise.

Secondly, petitioner has neither alleged nor proved

that he was not responsible for and did not know

19

about the bribe attempt before verdict. Instead, he

has relied entirely on his assertion that the govern-

ment adduced no evidence to show that he knew of

the bribe offer during trial or was involved in the

attempted jury tampering. As the court of appeals

correctly observed (Pet. App. 7a), Remmer was liti-

gated and decided on the assumption that, although

the court and the prosecutor were aware of the im-

proper jury contact during trial, the defendant first

learned of it by reading about it in the newspapers

after his conviction. This is a significant difference

between the two cases. Petitioner should not be per-

mitted to demand either that the government prove

lack of prejudice or that he be granted a new trial

when he is not willing even to allege that he was not

connected with and did not know about the bribe

attempt before verdict. Otherwise, a defendant who

learns about such a contact during trial, whether or

not he is responsible for it, will be encouraged to

remain silent and hope for an acquittal, secure in

the knowledge that a conviction will be set aside

unless the government can carry the burden imposed

by Remmer.

Petitioner’s position is especially objectionable in

the circumstances of the present case, because neither

he nor Lucas appeared (see Pet. App. 3a-4a) at the

hearing held to investigate both the posttrial contact

with juror Toomer by Lucas and petitioner’s wife

and the allegations in Lucas’s affidavit concerning

juror Crooms’ posttriai explanation of her vote to

20

convict." The government was thereby prevented

from inquiring into the reasons for the bribe attempt,

the source of the idea that such an effort should be

made, and petitioner’s knowledge of the incident.

Petitioner now concedes (Pet. 11) that “[e]vidence

that the defendant knew about the bribe attempt

before the verdict but chose to do nothing would

establish * * * harmlessness, because the error would

have been invited by the defendant.” But petitioner

seeks to take advantage of his fugitive status and

Lucas’s trip to Nassau at the time of the August 20

hearing by arguing that the government failed to

demonstrate the extent of his involvement in or

knowledge of the attempted jury tampering. The

court of appeals properly rejected this effort.”

11 Petitioner was apparently last seen on the morning of the

day of the hearing; he disappeared between that time and his

scheduled court appearance later in the day. He was ulti-

mately apprehended three years later.

12 The court of appeals based its decision in part on the fact

that petitioner’s motion to set aside the verdict was made

more than seven days after trial. The court therefore treated

the motion as a motion for a new trial based on newly dis-

covered evidence under Fed. R. Crim. P. 33. Although the

matter need not be resolved in this case because petitioner’s

motion was made outside the seven-day period ordinarily

provided for new trial motions, it is not clear that the stand-

ards for evaluating requests for a new trial based on alleged

jury tampering should vary with the time when the motion

is filed. Even if such a motion is made promptly after verdict,

the district court should still view it with great skepticism

if it does not allege lack of knowledge of the improper con-

tact during trial.

21

Finally, assuming arguendo that the question of the

bribe attempt’s effect on the jury was properly pre-

served by petitioner, the district court’s posttrial

inquiry sufficiently established that Lucas’s improper

contact with juror Crooms during trial did not deny

petitioner a fair verdict. Testimony at the hearing

showed that, although Crooms was initially upset by

the incident and asked for advice on the subject from

juror Reboso (H. Tr. 18), she soon “decided to forget

about it” (H. Tr. 19) and did not discuss the matter

further with Reboso or any other juror. Crooms

acknowledged that she should have reported the offer

to the court immediately, but she explained that she

“didn’t say anything” because she did not intend to

“become involved” with the bribe (H. Tr. 25).”

Similarly, Reboso testified that, after she learned

from Crooms of the bribe offer, she “didn’t think of

it at all” (H. Tr. 32). Reboso wus confident that the

information relayed by Crooms did not affect her

ability to render a fair and impartial verdict (H. Tr.

35-38). In these circumstances, the district court

did not err in denying petitioner’s motion to set aside

his conviction (H. Tr. 51). See United States v.

18 Crooms’ reaction to the improper contact by Lucas further

distinguishes this case from Remmer. Unlike the affected

juror in the earlier case, Crooms was not sufficiently disturbed

by the contact to notify the court, and consequently there was

no law enforcement investigation of the matter during the

trial that may have affected the jurors’ deliberations. In

Remmer, the district court ordered an FBI investigation

during trial, and the affected juror was visited at his place of

business by a federal agent who informed him of the court-

ordered inquiry.

22

Fleming, 594 F.2d 598, 608 (7th Cir.), cert. denied,

No. 78-6335 (June 11, 1979).

Because of his personal familiarity with the evi-

dence presented at trial, the general demeanor of the

proceedings, and the conduct of the jury, the trial

judge is uniquely well situated to evaluate the likeli-

hood that an isolated extraneous communication with

a single juror would have irreversibly contaminated

the impartiality of the jury’s deliberations. For this

reason, several courts of appeals have recognized that

district courts inevitably exercise a substantial de-

gree of discretion in ruling on claims of unfairness

at trial and that such rulings should not be over-

turned unless the facts show that the trial judge

clearly abused his discretion in assessing the prob-

ability of prejudice in a given case. United States

v. Albert, 595 F.2d 2838, 290 (5th Cir.), cert. de-

nied, No. 79-207 (Nov. 26, 1979); United States

v. Boscia, 573 F.2d 827, 832 (38d Cir.), cert. denied,

436 U.S. 911 (1978); Morgan v. United States, 399

F.2d 93, 97 (5th Cir. 1968), cert. denied, 393 U.S.

1025 (1969); Little v. United States, 331 F.2d 287,

295 (8th Cir.), cert. denied, 379 U.S. 834 (1964).

No such abuse occurred here.

Petitioner insists (Pet. 12-13) that the court of

appeals’ decision conflicts with Marshall v. United

States, 486 F.2d 155 (D.C. Cir. 1970). Petitioner’s

own argument demonstrates the fallacy of that as-

sertion, however. Not only was the evidence adduced

at the posttrial hearing sufficient to show lack of

prejudice in the present case, but petitioner himself

23

admits (Pet. 11) that, if he did know of the at-

tempted bribe during trial but kept silent, he would

have no legitimate ground for seeking to set aside

the verdict. Petitioner thus concedes that, unlike the

improper lineup issue considered in Marshall, the

proper resolution of a jury tampering question does

depend in part on the extent of the defendant’s

konwledge during trial. Moreover, the court of ap-

peals in Marshall addressed only constitutional error,

and it is not certain that the procedure and evi-

dentiary burden established in Remmer are consti-

tutionally compelled. Neither this Court’s initial

opinion in Remmer nor its later opinion after remand

(350 U.S. 377 (1956) ) purports to find in the Consti-

tution a basis for the “presumption of prejudice” on

which petitioner now relies. Petitioner’s alleged con-

flict with Marshall is thus speculative at best and

does not provide an appropriate occasion for review

by this Court.

14 The decision in Marshall was premised upon the propo-

sition that the claim in that case could have been raised in

a collateral attack upon the conviction, without regard to

whether the defendant knew or should have known of the

existence of the claim prior to trial; therefore, the court con-

cluded, it was pointless to subject the defendant to a due

diligence requirement simply because he elected to proceed

under Fed. R. Crim. P. 33. Subsequent to the decision in

Marshall, Fed. R. Crim. P. 12 has been amended to provide

for a waiver of claims for suppression of evidence if not

timely raised prior to trial, unless excused by a showing

equivalent to the due diligence showing required under Rule

33. Since the premise that underlay Marshall is no longer

viable, the case should not in any event be viewed as creating

a conflicting precedent requiring the attention of this Court.

24

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KATHERINE WINFREE

Attorney

DECEMBER 1979

% U. 8. GOVERNMENT PRINTING OFFICE; 1979 307485 167