Opposition — Miroff v. United States

ee rere ae ee

Supreme Court, U, ry

1 ol PR FLED

No. 79-1047 |

MAR_ 4

| MICHAEL RODAK, JRa CLE

Iu the Supreme Court of the Wnited States

OCTOBER TERM, 1979

Ed

ene pee

“we

Leo MIROFF and JANE FRANCES POWERS,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 205380

Opinion below RUMAH e

PUT oii a ee a

Questions presented __..__.. WSR tain ee 14)

TI i ii I a

DTI ocsivvcinsicciessinincanicotiiie aceasta depen

Ce cee *:

Cases: CITATIONS

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

DE, TOTGY | ciniciccecccnnninpiiiodsiibitibicentennn’

Bruton v. United States, 391 U.S. 123 __.

Frazier v. Cupp, 394 U.S. 731 _------...

Holzhey v. United States, 223 F.2d 823 __.

Moody v. United States, 376 F.2d 525 _.

Moore v. Illinois, 408 U.S. 786

Odom v. United States, 377 F.2d 853 ____.

Pauldino v. United States, 379 F.2d 170 _..

United States v. Adams, 385 F.2d 548

United States v. Bey, 437 F.2d 188

United States v. Block, 590 F.2d 585

United States v. Boyd, 595 F.2d 120 _..___.

United States v. Broadway, 477 F.2d 991

United States v. Clarke, 343 F.2d 90...

United States v. Fierson, 419 F.2d 1020 ....

United States v. Isom, 588 F.2d 858

United States v. Laurelli, 293 F.2d 830,

cert. denied, 368 U.S. 961 - ie

United States v. Matlock, 415 U. Ss. 164 an

United States v. Milhollan, 599 F.2d 518..

United States v. Neumann, 585 F.2d 355..

United States v. Reed, 376 F.2d 226...

United States v. Reid, 410 F.2d 1223 _______

er

Cases—Continued Page

United States v. Richardson, 562 F.2d

OTe: ki: ates 6

United States v. Robinson, 479 F.2d 300 ___. 7

United States v. Robinson, 544 F.2d 611,

conviction affirmed on rehearing en banc,

560 F.2d 507, cert. denied, 435 U.S.

905 10

United States v. Solomon, 422 F.2d 1110,

cert. denied, 399 U.S. 911 _....._.._______.. 11

United States v. Stone, 471 F.2d 170, cert.

GUI 00% SE, PO a 9

United States v. Warledo, 557 F.2d 721 _. 10

United States v. Weidman, 572 F.2d 1199,

cert. denied, 439 U.S. 821... 11

United States v. Wiener, 534 F.2d 15, cert.

GE, See Uk ee 5

United States v. Wilson, 536 F.2d 883 _____. 8

Wisniewski v. United States, 353 U.S.

Pee 12

Constitution, statutes, and rules:

United States Constitution, Fourth

I 2,4, 6

18 U.S.C. 2(b) 2

1). SE REE air aR Ce 2

Rip ere UD os I 3

3

3

2

9

6p ees

eee erie 2

Miscellaneous:

Advisory Committee Notes to Fed. R. Evid.

401 11

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1047

LEO MIROFF and JANE FRANCES POWERS,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

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

13a) is reported at 606 F.2d 777.

JURISDICTION

The judgment of the court of appeals was entered

on October 1, 1979. A petition for rehearing was

denied on December 5, 1979. The petition for a writ

(1)

2

of certiorari was filed on January 3, 1980. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether, under the circumstances of this case,

the warrantless search of a garment bag and a plastic

garbage bag violated petitioners’ Fourth Amendment

rights.

2. Whether evidence that two guns had been found

in petitioners’ room was improperly admitted.

3. Whether extrinsic-crime evidence was impro-

perly admitted.

4. Whether certain testimony was so prejudicial as

to require reversal, even though it was stricken from

the record.

STATEMENT

After a jury trial in the United States District

Court for the Northern District of Illinois, petitioners

were convicted of transporting stolen property in in-

terstate commerce, in violation of 18 U.S.C. 2314 and

2(b). In addition, petitioner Miroff was convicted of

conspiring to commit that offense, in violation of 18

U.S.C. 371.’ Petitioner Miroff was sentenced to one

year’s imprisonment to be followed by three years’

probation. Petitioner Powers was sentenced to six

months’ imprisonment to be followed by four and one-

half years’ probation. The court of appeals affirmed

(Pet. App. la-13a).

1 Petitioner Powers was acquitted on the conspiracy count.

3

1. The evidence showed that at a meeting on Janu-

ary 8, 1973, in Melrose Park, Illinois, Harry Aleman,

Louis Almeida, and Leonard Foresta * discussed plans

for the robbery of the Indianapolis, Indiana home of

Dr. Robert Messinger. Aleman stated that he had

received a “tip” about the house from petitioner

Miroff and that he wanted Almeida and Foresta to

rob it (Tr. 13-14, 19-24; Pet. App. 2a).

The following evening Almeida and Foresta met

with Miroff and his girlfriend, petitioner Powers, at

Miroff’s apartment in Indianapolis, and that evening

they discussed the robbery (Tr. 34-38). Miroff then

drove them to the Messinger house, stating that he

and Powers had devoted a lot of time and effort to ob-

taining information about the house (Tr. 38-39).

The next day, Miroff and Almeida went to a shopping

plaza where Almeida stole an Indiana license plate

(Tr. 40). The following morning Almeida and For-

esta stole a second Indiana license plate and put it on

Foresta’s car (Tr. 41-42). When they returned to

Miroff’s apartment, Miroff and Powers told them how

to gain entry to the Messinger house, and they dis-

2 Harry Aleman and Leonard Foresta were convicted in

a separate trial of participation in the affairs of an enterprise

through a pattern of racketeering activity (18 U.S.C. 1962

(c)), conspiracy to commit that offense (18 U.S.C. 1962(d)),

and interstate transportation of stolen property (18 U.S.C.

2314), growing out of the robbery in Indiana that formed

the basis of the conviction in the present case and two other

robberies. Their petition for a writ of certiorari raising issues

unrelated to the present petition is now pending. Aleman and

Foresta v. United States, No. 79-1009.

4

cussed where they would meet after the robbery (Tr.

42-43).

The four then drove in two cars to a shopping

center approximately one mile from the Messinger

house. From there, Almeida and Foresta went to the

house, where Foresta went to the front door and

briefly talked to the maid (Tr. 43-46, 154-156). They

then returned to the shopping center where Miroff and

Powers were waiting and told them that the maid was

the only person in the house (Tr. 46).

At approximately 12:30 a.m., Almeida and Foresta

returned to the house and gained entry by posing as

CIA agents. Brandishing pistols, they tied the maid

up and seized furs, jewelry, and cash worth approxi-

mately $25,000 (Tr. 46-49, 54, 56, 156-165; Pet. App.

2a). The four spent the night at Miroff’s apartment

and left the next morning for Aleman’s house in

Melrose Park. There, arrangements were made for

dividing the proceeds of the robbery (Tr. 58, 60, 68,

76).

2. Prior to trial, petitioners moved to suppress the

items stolen from the Messinger house and other evi-

dence on Fourth Amendment grounds. The evidence

adduced at the suppression hearing (see Pet. App.

2a-5a) showed that on January 19, 1973, petitioners

offered to sell a federal undercover agent certain

stolen radios that were not part of the loot of the

Indianapolis robbery. On January 26, federal agents

and local police officers went to the residence of

Robert Harder and his wife to arrest Harder, Miroff,

and Powers for possession of the radios. At the time,

Miroff and Powers were guests in the Harder house,

5

temporarily occupying the downstairs bedroom. The

Harders kept personal belongings in closets and draw-

ers in the bedroom, including clothing, pictures, and

papers. The bedroom door had no lock on it, and

petitioners had no key to the house.’

Upon the officers’ arrival at the house, Harder

admitted them and gave them permission to search

the bedroom occupied by petitioners. At one point in

the testimony at the hearing, one of the officers stated

that Harder had told them that “[w]hatever was in

the bedroom belonged to Mr. Miroff.” This was ob-

viously not the case, because the Harders’ own cloth-

ing was found in the bedroom closet; however, it did

appear that all of petitioners’ possessions were located

in the bedroom. The officers searched the room and

found several shopping bags containing radios and

electric-shavers. Inside the closet, they found a gar-

ment bag containing jewelry, approximately $1,000,

and two guns. On the floor of the closet they found a

plastic garbage bag containing furs, and two Indiana

license plates.* Finally, on the night stand adjacent

to the bed, the officers found an address book and some

papers listing each item of jewelry found in the gar-

3 About a week prior to the service of the arrest warrants,

the police had come to the Harder home, and petitioners had

left with them. When petitioners returned to the house,

Harder teld them that he and his wife did not want anything

in the house that had been stolen. Petitioners stayed on with

the understanding there was no stolen property in the room

(Pet. App. 2a).

* The garbage bag was found untied (July 18, 1978 Tr. 26).

6

ment bag and its estimated worth (see July 18, 1978

Tr. 24-30, 45-49; Pet. App. 3a).

ARGUMENT

1. Petitioners appear to concede (Pet. 8, 12) that

Harder could properly consent to a search of the bed-

room,” but they contend (Pet. 6-12) that Harder had

no authority to consent to the warrantless searches of

the garment bag and the untied plastic bag and that

these searches were therefore invalid. This claim is

unfounded. Petitioners could not, in the circumstances

of this case, have entertained a reasonable expectation

of privacy in the contents of the bags sufficient to im-

plicate their Fourth Amendment rights. Indeed, we

doubt that a garbage bag—especially an untied one—

is subject to a reasonable expectation of privacy in

any circumstance. See United States v. Neumann,

585 F.2d 355, 360-361 (8th Cir. 1978); United

States v. Block, 590 F.2d 535, 541 n.8 (4th Cir.

1978); compare Arkansas v. Sanders, No. 77-1497

(June 20, 1979), slip op. 11 n.13.

Moreover, the evidence indicates that the garment

bag was hung in the bedroom closet among the

Harders’ own clothes when the officers found it, and

the garbage bag was on the closet floor. It was

5 Harder’s right to consent to the search of the bedroom

and closet is apparent because, at the very least, he possessed

joint authority over those areas. See United States v. Matlock,

415 U.S. 164, 171 & n.7 (1974); United States v. Block,

_ 590 F.2d 535, 539-540 (4th Cir. 1978) ; United States v. Rich-

ardson, 562 F.2d 476, 479-480 (7th Cir. 1977).

7

not apparent that these bags—unlike, for example,

the suitcase on the nedroom floor (July 18, 1978 Tr.

44)—-belonged to petitioners. Having thus neglected

adequately to separate their property from that of the

Harders, petitioners could not reasonably have ex-

pected that, in the event the Harders consented to a

search of the closet, the bags would remain unex-

amined. In making consensual searches, the police

are not required to ascertain the ownership or custody

of every article or space in the premises searched.

United States v. Robinson, 479 F.2d 300, 303 (7th

Cir. 1973); see Frazier v. Cupp, 394 U.S. 731, 740

(1969).

Moreover, petitioners knew that the Harders sus-

pected that they were concealing stolen property in the

room; indeed, the Harders had specifically warned

them not to do so. Their continued presence in the

house, as the court of appeals observed (Pet. App.

4a), was contingent on their keeping no stolen prop-

erty there. Accordingly, petitioners could have been

under no illusion that the contents of the bags were

secure from any attempt by the Harders to determine

if they were abiding by the conditions of their stay.

Having made no attempt to protect the bags from the

scrutiny of the Harders, petitioners assumed the risk

that the Harders might allow someone else to look at

items in the room, Frazier v. Cupp, 394 U.S. at 740;

accordingly, they possessed no reasonable expectation

of privacy with respect to them. It would have re-

quired nothing less than a locked container to permit

such an expectation in these circumstances. See

8

Holzhey v. United States, 223 F.2d 823 (5th Cir.

1955).

The cases upon which petitioners rely do not aid

their cause. The suitcase in United States v. Wilson,

536 F.2d 883 (9th Cir. 1976), and the footlocker in

United States v. Block, supra, were not intermingled

with the property of the person consenting to the

search, and it was obvious the property did not belong

to that person. Moreover, in neither case did the de-

fendant entertain a diminished privacy expectation

based on the known suspicions of others with whom

he shared the premises. Indeed, the footlocker in

Block was secured and had to be forced open by the

officers. In United States v. Isom, 588 F.2d 858 (2d

Cir. 1978), the court stated that as a general rule —

“Tgjuests have a justifiable expectation * * * that

the contents of locked articles that they bring to the

host’s premises will remain private” (588 F.2d at

861; emphasis added). Petitioners do not contend

that the bags in this case were comparably secured.°

In any event, the court upheld the search of the de-

fendant’s locked box in Jsom because the police had no

* Petitioners also contend (Pet. 12) that the police lacked

probable cause to seize the contents of the bags because they

had no knowledge that any of the items had been stolen.

But, as the court of appeals concluded (Pet. App. 5a), “once

the officers found the radios and electric shavers in the

shopping bags, jewelry, almost $1000 in $20 bills and two

guns in a garment bag, furs with someone else’s name sewed

inside them in plastic garbage bags, and the handwritten

list of jewelry, the officers had adequate probable cause to seize

the items.”

9

basis for believing the consenter’s authority did not

extend to it. |

2. During his direct testimony, one of the police

officers was asked what had been seized in the Harder

bedroom. Among the things he listed were the two

guns found in the garment bag. Petitioners objected,

and the court overruled the objection (Tr. 191-193).

Petitioners contend (Pet. 20-24) that this ruling was

error.

Rule 403, Fed. R. Evid., commits to the trial court’s ©

discretion the weighing of the probative value and

possible prejudicial impact of proffered evidence.

Here, as the courts below concluded (Pet. App. 8a-

9a), the testimony concerning the guns was probative.

Petitioners were charged in the conspiracy count with,

among other things, conspiring to commit a robbery

and to “induce fear in and commit violence upon

their intended victims by the use of firearms” (July

28, 1978 Tr. 53). Since the possession of handguns is

consistent with this kind of activity, the jury was en-

titled to consider the evidence of the guns—especially

in view of the fact that the weapons were found in the

garment bag along with the stolen property. See

Moore v. Illinois, 408 U.S. 786 (1972) ; United States

v. Stone, 471 F.2d 170, 172-173 (7th Cir. 1972), cert.

denied, 411 U.S. 931 (1973) ; United States v. Wiener,

534 F.2d 15, 17-18 (2d Cir.), cert. denied, 429 U.S.

820 (1976).

Moreover, the officer’s testimony did not in any

way emphasize the guns; he simply mentioned that

guns were among the items found in the garment bag.

This “incidental testimony”, as the court of appeals

10

characterized it (Pet. App. 9a), was plainly not so

prejudicial as to require reversal, particularly in view

of the strong evidence of petitioners’ guilt.’

3. Over petitioners’ objection, a federal agent was

permitted to testify that on January 19, 1973—eight

days after the robbery of the Messinger house—peti-

tioners offered to sell him stolen radios. The agent

also testified that when he and other law enforcement

agents went to the Harder residence on January 26,

they intended to arrest petitioners for possession of

the stolen radios seen at the January 19th meeting

(Tr. 247-250). The district court instructed the jury

(Tr. 245-246) that this testimony was being received

for the sole purpose of establishing that petitioners

knew the items they had transported in interstate

commerce were stolen. Although they concede that

criminal intent or knowledge may be proven by evi-

dence of other crimes under Fed. R. Evid. 404(b),

petitioners contend that the agent’s testimony was

7 The cases upon which petitioners rely (Pet. 21-28) are

inapposite. In Moody v. United States, 376 F.2d 525, 580-

532 (9th Cir. 1967), United States v. Warledo, 557 F.2d 721

(10th Cir. 1977), and United States v. Reid, 410 F.2d 1223

(7th Cir. 1969), the evidence of the weapon was extensive

and emphasized; indeed, in Moody and Warledo, the gun it-

self was admitted into evidence. In United States v. Robinson,

544 F.2d 611, 619-620 (2d Cir. 1976), a panel of the court

of appeals concluded that the admission of testimony that the

defendant possessed a gun at the time of his arrest for bank

robbery was reversible error because, unlike here, the gov-

ernment’s case was extremely weak. In any event, the en banc

court reached the opposite conclusion in that case and affirmed

the conviction. 560 F.2d 507 (2d Cir. 1977), cert. denied, 435

U.S. 905 (1978).

11

inadmissible because petitioners had not contested

their knowledge that the articles were stolen (Pet.

13-16) and because the attempted sale of the radios

securred subsequent to the crimes charged in this

case (Pet. 16-20). These claims are without merit.

It is an essential element of the crime of trans-

porting stolen property in interstate commerce that

the defendant knew the property was stolen. See

United States v. Solomon, 422 F.2d 1110, 1112 (7th

Cir.), cart. denied, 399 U.S. 911 (1970); Pauldino v.

United States, 379 F.2d 170, 172 (10th Cir. 1967).

Petitioners’ failure to contest their guilty knowledge

did not relieve the government of its burden of prov-

ing this element of the offense beyond a reasonable

doubt.* Because the government thus had a legitimate

need for the extrinsic-crime evidence (see United

States v. Weidman, 572 F.2d 1199, 1202 (7th Cir.),

cert. denied, 489 U.S. 821 (1978) ), the district court

did not abuse its discretion in admitting it. This is

especially clear here since the court carefully apprised

the jury of the limited purpose for which the evidence

could be considered,’ and the evidence of petitioners’

guilt (see pages 3-4, swpra) was overwhelming.”

8’ The Advisory Committee Notes to Fed. R. Evid. 401

ind! cate that the rules contain no “requirement that evidence

is admissible only if directed to matters in dispute.”

® This cautionary instruction was repeated in the court’s

final charge (July 28, 1978 Tr. 50)..

10 This case is unlike those relied upon by petitioners. In

United States v. Adams, 385 F.2d 548 (2d Cir. 1967), the

conviction was reversed on other grounds, and the court

merely discussed the question of admissibility of extrinsic-

12

Nor is there merit to petitioners’ claim that the

extrinsic-offense evidence lacked relevance merely be-

cause it was committed after, rather than before, the

charged offense." The relevancy of extrinsic-crime

evidence is to be judged under the standard set forth

in Fed. R. Evid. 401, which provides that evidence is

relevant when it has “any tendency to make the

crime evidence consisting of conversations concerning a pos-

sible drug transaction that never took place. In United

States v. Broadway, 477 F.2d 991 (5th Cir. 1973), the court

held that the extrinsic offense was inadmissible not because

the element it was introduced to prove was uncontested—in

fact, it was contested—but because the two offenses were not

sufficiently similar. To the extent petitioners rely on the

Seventh Circuit’s prior decision in United States v. Fierson,

419 F.2d 1020 (1969), they suggest a conflict among dif-

ferent panels of the same circuit. Such a conflict does not

warrant review by this Court. Wisniewski v. United States,

353 U.S. 901, 902 (1957).

11 For this position petitioners rely principally on United

States v. Boyd, 595 F.2d 120 (8d Cir. 1978). There, the court,

in ruling that evidence of a subsequent crime had been im-

properly admitted under Rule 404(b), stated that “[t]he logic

of showing prior intent or knowledge by proof of subsequent

activity escapes us.” 595 F.2d at 126. This view finds no sup-

port in the Rules of Evidence or the cases construing them,

and is in direct conflict with prior decisions of the Third Cir-

cuit. See United States v. Bey, 487 F.2d 188, 191 (3d Cir.

1971) ; United States v. Laurelli, 293 F.2d 880, 832 (3d Cir.

1961), cert. denied, 368 U.S. 961 (1962). Indeed, since the

decision in Boyd, the Third Circuit has upheld the admission

of subsequent crime evidence under Fed. R. Evid. 404(b).

See United States v. Milhollan, 599 F.2d 518, 524 (3d Cir.

1979). In the other cases cited by petitioners evidence of the

extrinsic crime was held inadmissible for reasons having noth-

ing to do with the fact that it occurred after the charged

offense.

13

existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence.”

Here, the testimony that petitioners were dealing in

radios they knew to be stolen only eight days after

transporting other stolen property in interstate com-

merce surely tended to show that they also knew that

property was stolen. No more was required to sup-

port the trial court’s determination that it was

relevant.

4, On several occasions during the trial, a govern-

ment witness gave testimony that was stricken by the

court on motion of the defense. Two of the incidents

involved the witness Almeida, who was one of the

participants in the robbery. On one occasion, he testi-

fied that Foresta told him that petitioner Miroff

“used to give him tips on scores to make” (Tr. 31).

On another occasion, Almeida testified that Miroff

told him that petitioner Powers “was a stand-up

broad and that she shot her husband, something like

that” (Tr. 35-36). In a third incident, a detective,

in setting forth his duties, testified that his responsi-

bility was “with the known thieves, professional

thieves” (Tr. 266). Petitioners contend (Pet. 24-29)

that this testimony was so prejudicial as to compel

reversal of their convictions.

In view of the district court’s prompt and decisive

action to negate prejudice by striking the answers,

reversal is not required. As this Court stated in

Bruton v. United States, 391 U.S. 123, 185 (1968),

“Tn]jot every admission of inadmissible * * * evidence

can be considered to be reversible error unavoidable

14

through limiting instructions; instances occur in al-

most every trial where inadmissible evidence creeps

in, usually inadvertently.” Here, in addition to its

immediate action in striking the testimony, the court

advised the jury early in its final charge that the

jury should “disregard * * * testimony which the

Court has refused or stricken” (July 28, 1978 Tr.

44). Moreover, there is no indication that the gov-

ernment deliberately elicited the answers. In any

event, this case was plainly not so close that the of-

fending testimony could have been a decisive factor.”

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

JOEL M. GERSHOWITZ

Attorney

MARCH 1980

12TIn Odom v. United States, 377 F.2d 853, 859 (5th Cir.

1967), and United States v. Clarke, 3483 F.2d 90 (3d Cir.

1965), the courts acknowledged that, in genezal, an erroneous

admission of evidence is cured by instructing the jury to dis-

regard it, especially where, as here, guilt is clear. In United

States v. Reed, 376 F.2d 226 (7th Cir. 1967), the court,

while sustaining defendant’s objection to the offending testi-

mony, apparently neglected to instruct the jury to disregard

it (id. at 228).

W ou. S. GOVERNMENT PRINTING OFFICE; 1980 315012 243

SSS

i ie

@