Petition — Harper v. United States

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Bsn: ene Court, U. a. - \

FILED ai

MAY 23 {980

IN THE = ee

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1863

DONALD WINSTON HARPER, NEIL WILSON

ROWE, JAMES MERRILL BURDINE, JOHN

WHITE, DAVID RAY JENKINS, DAVID RAY-

MOND GOVUS, DONALD ALFRED BLACK,

GARY REGAN TALBERT, RICHARD LEWIS

JACKSON, MICHAEL BENJAMIN FORBES and

ROBERT McNEILL HERRING,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

BARRY NAKELL

1310 LeClair Street

Chapel Hill, North Carolina 27514

Of Counsel: Counsel for Petitioners

EUGENE GRESSMAN

325 Glendale Drive

Chapel Hill, North Carolina 27514

(Names of Counsel continued on inside cover)

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, O. C.-223-1220

James K. Jenkins

1000 Candler Building

Atlanta Georgia 30303

Atiorney for Petitioners

Donaid Winston Harover

and Nei! Wilson Rowe

Bruce H. Morris

3565 Piedmont Road

Atlanta, Georgia 30305

Attorneys for Petitioners

John White and

James Merrill Burdine

Reber Boult

Suite 1500

The Healy Bldg.

57 Forsyth Street, N.W.

Atlanta, Georgia 30303

Attorney for Petitioner

Robert McNeill Herring

John W. Stokes

4283 Memorial Drive

Suite J

Decatur, Georgia 30032

Attorney for Petitioner

David Ray Jenkins

Norman B. Kellum

David P. Voerman

P.O. Box 866

New Bern, North Carolina 28650

Attorney for Petitioner

Michael Benjamin Forbes

Steven A. Bernholz

Suite 20, Franklin Bldg.

137 East Franklin Street

Chapel Hill, North Carolina 27514

Attorney for Petitioners

Donald Alfred Black

and Gary Regan Talbert

Edwin Marger

Suite 320

6666 Powers Ferry Road

Atlanta, Georgia 30339

Attorney for Petitioner

David Raymond Govus

(i)

TABLE OF CONTENTS

Page

CE EE ae nr ee ae I Ce ea 2

ie eae Ca ie ape peewee hine a dwenanvers 2

na ns ia Was bow ee cea SoS eh ebnes mane 2

CONSTITUTIONAL, STATUTORY AND REGULATORY

el a acer p Wk 6 ones dee le we e-¥e 5

ee ican cs kenes cedeeseuacnneeee 5

ice cad baa dss vw eve ewes 6

I CPUOWOY vnc wc ccc cece ccncewesecse 8

EE 10

I CO cg i ccc es ccensecassveveveene 12

REASONS FOR GRANTING THE WRIT .................... 13

1. THE DECISION BELOW IS IN CONFLICT

WITH THE DECISIONS OF THIS COURT, OF

OTHER COURTS OF APPEALS, AND OF

STATE COURTS ON THE CONSTITU-

TIONALITY OF THE STOPPING AND BOAR-

DING OF A VESSEL ON THE HIGH SEAS

WITHOUT PROBABLE CAUSE OR EVEN

REASONABLE SUSPICION AND WITHOUT

oe aie Oe ae 6 ica a aio 0's vv 8S Shaw ee 6 RD 13

A. Conflicts as to Standards for Searches at Sea ........ 14

B. Conflicts as to Boarder Searches ................... 17

IV.

Vi.

(ii)

C. Conflicts as to Administrative Searches ............. 18

D. Conflicts as to “Necessary” Searches ............... 19

THE STOPPING WITHOUT PROBABLE

CAUSE OR EVEN REASONABLE SUSPICION

OF CARS IN THE GENERAL VICINITY

WHERE A MARIJUANA UNLOADING

OPERATION HAD OCCURRED THREE

HOURS EARLIER RAISES AN IMPORTANT

FOURTH AMENDMENT QUESTION ............... 21

BECAUSE THE STATEMENT OF HARPER

AND ROWE WERE INVOLUNTARY, THE

DECISION BELOW UPHOLDING WITHOUT

DISCUSSION THEIR USE AT TRIAL IS IN

CONFLICT WITH SEVERAL DECISIONS OF

Fe Ea is Sen el as Se we ae send oa eee 24

THE USE IN EVIDENCE OF THE VOICE

IDENTIFICATION OF PETITIONER

MICHAEL BENJAMIN FORBES WHICH WAS

THE FRUIT OF HIS ARREST WITHOUT PRO-

BABLE CAUSE RAISES AN IMPORTANT

QUESTION LEFT UNANSWERED THIS

TERM IN UNITED STATES v. CREWS .............. 25

THE FAILURE OF THE DISTRICT JUDGE TO

MAKE A DE NOVO DETERMINATION OF

THE MAGISTRATE’S RECOMMENDATIONS

ON THE SUPPRESSION MOTIONS RAISES

IMPORTANT QUESTIONS UNDER THE

FEDERAL MAGISTRATES ACT AND THE

et it 8. Rave aa tinen is eae pneiee nr CaaS pte eee ee 26

THE DECISION BELOW IS IN CONFLICT

WITH THE DECISIONS OF TWO OTHER

COURTS OF APPEALS ON WHETHER THE

CONSPIRACY TO IMPORT MARIJUANA

ENDED BEFORE PETITIONERS TALBERT,

HERRING, BLACK, BURDINE, JACKSON,

WHITE, JENKINS AND FORBES JOINEDIT........ 28

(iii)

Vil. THE DECISION BELOW IS IN CONFLICT

WITH THE DECISIONS OF OTHER COURTS

OF APPEALS ON THE IMPORTANT QUES-

TION OF THE REQUISITE PROOF OF PAR-

TICTPATION IN A CONSPIRACY 20. occ cccs ceceee

Vill. THE DECISION BELOW RAISES IMPOR-

TANT QUESTIONS UNDER THE JURY

SELECTION AND SERVICE ACT OF 1968, 28

U.S.C. SECTIONS 1861-1871, REGARDING:

(A) WHETHER A LIST OF ACTUAL

VOTERS MAY BE USED AS THE SOLE

SOURCE OF NAMES FOR FEDERAL

JURY SELECTION WHEN THAT PRAC-

TICE RESULTS IN JURIES IN WHICH

COGNIZABLE GROUPS ARE UNDER-

REPRESENTED, AND,

(B) WHAT STATISTICAL SHOWING CON-

STITUTES A PRIMA FACIE CASE THAT

FEDERAL JURY SELECTION PRAC-

TICES RESULT IN JURIES IN WHICH

COGNIZABLE GROUPS ARE UNDER-

co ES eee eee ee eee

eS PCT Re AA nee ee

Appendix A — Opinion of the United States Court of Ap-

peals for the Fourth Circuit, Cases Nos.

79-5016, 79-5017, 79-5018, 79-5019 and

79-5020, Decided February 13, 1980 ...........

Appendix B- Opinion of the United States Court of Ap-

peals for the Fourth Circuit, Case No.

79-5015, United States v. Coats, 611 F.2d 37

(4th Cir. 1979), cert. den., No. 79-1230 .......

Appendix C — United States District Court for the Eastern

Distric. of North Carolina, New Bern Divi-

sion — Memorandum and Recommendation

on Motions To Suppress Evidence Relating

to the Vessel Lady Ellen, Filed June 16,

SEO Di cccan ead Chats PEG ireeh eh an aneous

Page

Appendix D —

Appendix E —

Appendix F —

Appendix G —

Appendix H —

Appendix I —

Appendix J —

(iv)

Order of the United States District Court for

the Eastern District of North Carolina, New

Bern Division, Denying Defendants’ Mo-

tions To Suppress Evidence Relating to the

Vessel Lady Ellen, Dated July 3, 1978 ......

United States District Court for the Eastern

District of North Carolina, New Bern Divi-

sion — Memorandum and Recommendation

on Motions To Suppress the Searches and

Seizures at Back Creek, Filed June 20, 1978 ....

United States District Court for the Eastern

District of North Carolina, New Bern Divi-

sion — Supplementary Memorandum and

Recommendation on Motions To Suppress

the Searches and Seizures at Back Creek,

PRE 25 SOME ns oak Nabe sndevssseuceas

United States District Court for the Eastern

District of North Carolina, New Bern Divi-

sion — Memorandum and Recommendation

on Motions To Suppress Evidence Seized

from Automobiies, Filed June 22, 1978 .....

Order of the United States District Court for

the Eastern District of North Carolina, New

Bern Division Denying in Part and Allowing

in Part Defendants‘ Motion To Suppress

Evidence Seized from Automobiles, Dated

p 8 Fre rans ene

United States District Court for the Eastern

District of North Carolina, New Bern Divi-

sion, Stipulation, Dated July 2, 1978 .......

United States District Court for the Eastern

District of North Carolina, New Bern Divi-

sion — Memorandum and Recommendation

on Motions To Suppress Statements of

Defendants Harper and Rowe, Filed June

hg Me eee

Page

S2a

(v)

Page

Appendix K — Constitutional, Statutory and Regulatory

oo ee ee re 115a

Appendix L — Table of Disparities in Composition of Peti-

EE gol es eevee ee 122a

Appendix M — Table of Outcomes of Jury Composition

EN spac «ao be RE yas e UNE CeSS AS 123a

(vi)

TABLE OF CITATIONS

Page

Cases:

Alksne v. United States,

EE Ey er ry Pee 29

Almeida-Sanchez v. United States,

ee inv kbc sue taen’ 17, 18, 19, 20. 21, 23

Anderson v. United States,

ssa ay pa conn ekkS een obec kines os 29

Arch v. United States,

coals cede ee anes eee hanes 14

Bollenbach v. United States,

Te Lil. deus Skayans chbaespekbseekuwhs 30

Bowman v. Bordenkircher,

I WEED as ce sre bobo caus bac seeseennees 28

Brady v. United States,

WE et bcc inh eb seks hws ae bieeasesweneekes 24

Bran v. United States,

es a tok a kad wen bb bbasenedenea ¥en ks 24

Brinegar v. United States,

oe ee ck gtk sae Gh ese bees eene wus 21

Broadway v. Culpepper,

CE rr re rere 36

Brown vy. illinois,

ccc knnes ba hacd eeakawabeenbhae vs 25

Brown v. Texas,

EE ec Las cok ehh a eke ends &O0R ROS Ou 22, 23

Brown vy. United States,

Se EE ees coh eceesed Cade bebe seeenabeakeaceed 29

(vii)

Page

Campbell v. District Court,

es FE oda kind vccaessavatesuseleeenases 28

Carroll v. United States, .

Pa RE webb 6 0 95 oak cad ened se heekaed se eueeS 21

Casal v. State,

a a Te : FH NOUED vk. kee vaddiwesesaseuaenecenl 15

Chambers v. Maroney,

EE IEEE An Gidave ak shaves sase5eeexnuenanbuseeaes 21

City of Rome v. United States,

GRUB. La We GRR CI ok vc cnc ccncesccencsecacects 37

Colonnade Catering Corp. v. United States,

Br Ce PIE On ac ya. sas 449 4chak bk bee anekenneeaen 18

County Court of Ulster Cty. v. Allen,

Se as EE eta chan scatocks ¢uedeuens caucus nee 31

Culombe v. Connecticut,

er Sac EDD -i/4-5 0.06-0444s 6 bk0 640 san NON deeb eben auae 24

Cunard S.S. Co. v. Mellon,

es I 6 0s as60cactanbsyatnsaewadececeeenes 29

Delaware v. Prouse,

eR er 18, 19, 21, 22, 23

Dunaway v. New York,

I iw aos asa 4k yaw ake eke eae Shenaeeees 25

Duren v. Missouri,

BREE 5 ws k 5 0b0b0 050d kh udidne chan esnenuees 37, 40

Dyke v. Taylor Implement Mfg. Co.,

BF rT er ee re ee 21

Fish v. Brophy,

eo me FR PP errr er ee eee 14

(viii)

rage

Fiswick v. United States,

es cdc eee ae kab shee onan ee eae Okie 29, 30

Glasser v. United States,

Dies ee eae eda be cet csebebantbe 35

Grunewald v. United States,

ea he oak Wasa a 0 6 bere.8 ee ee 30

Haynes v. Washington,

ee ec ake bbe bes Rea eeeepabeye 24

Henry v. United States,

CTE cus deaetiees sabbarabneeee 21

Jackson v. Virginia,

ee ee et kaed sen eeebaot make 35

Klutz v. Beam,

er Ce, OO, NOTED ce cccccscccccccvcscencss 15

Krulewitch v. United States,

ee ee eG vada nceveeceseeeeanes 30

Little v. Barreme,

EE Ee ey ee eee 14

Logan v. United States,

Nee is chs ban wehbe s sew eleee bun 29

Lutwak v. United States,

Cee ee en ee ee alee pene een bes y ce uacen 30

Lynum vy. Illinois,

Cee, UN dee dk eee eeepebeeed aan 24

Mallory v. United States,

a 24

Marshall v. Barlow’s Inc.,

Te hse neverveesr ands 18, 21

(ix)

Page

Mathews v. Weber,

ea. rae boas Peek aha wane eeeeune 27

McKinney v. Parsons,

ic cece eedckendepoewe Woes kenens 28

McNabb v. United States,

EE eke c hk cavaned cs0deedwaenanestse eeeaes 24

Michigan v. Tyler,

cn ond Cabs weeds NOES SFE Re eK ne 21

Mincey v. Arizona,

I oe a's 0G Lug hawdehenenpexesvexees 21, 25

Palmero v. United States,

Se I , MD ig gcdvbss nape saaauverascasaees 29

People v. Nissen,

97 Misc.2d 1000, 412 N.Y.S.2d 999

i cre cae ada eu nei eeeetean eebteedeee seeks 15

Potter v. United States,

ee re eee err rere 21

Ramirez v. United States,

ee OE bg sc ae nha ohana ewbaceh Kean ere keen 32

Rios v. United States,

ead a nwk dubs Mia eheateeenee hace ona 21

Rose v. Mitchell,

ee ee ee eee Cee ee eg ee 41

Swain v. Alabama,

PN cs vg 5k ca chee bean tbedtecheeeurtaseeaks 39

Swisher v. Brady,

we ee rere rr ye eee 27

Taylor v. Louisiana,

Cg Ie er reer rere ore rr . 37, 38

(x)

Page

Thiel v. Southern Pacific Co.,

ED ere. ea dy kat wun 6ass6s ono’ Meee e 38

Tomplain v. United States,

42 F.2d 202 (Sth Cir.), cert. den.,

a Se a cen eba cake esebeunes kEseus 34

Torres v. Puerto Rico,

ee ec Cel ha ccecuusceakee ebace’ 18, 20, 23

United States v. Acosta,

ae a os OEE 664.60 ka viee seuss csewenees 16

United States v. Alfrey,

ee WED . cave ecevecdevaedeséseceberes 30

United States v. Alvarez,

ee EE, OD oo on ca ctbccneaseeewbenvaneees 35

United States v. Baker,

ee ws a eg be Wu bg 6e.s0ueeea bed wees 31

United States v. Basurto,

ee a aa hwo en eee ewes wat 31

United States v. Bergera,

ED ck cuted ceaneesbeeneeeceneas 27

United States v. Biswell,

ee se Ck ease ee hE eee 18

United States v. Brignoni-Ponce,

Ee a ne Te er 22

United States v. Burgos,

sic ctevheccduhaebesecssacteness 31

United States v. Cadena,

585 F.2d 1252 (Sth Cir. 1978), rehg. den.

Se Es BUTE 56.06 ancds vee scceedhs sacveuné 15, 30

United States v. Caro,

OD ice aventeveteentsasneencue ea 31

(xi)

Page

United States v. Carrizola-Gaxiola,

oe an nike cer deseeneeteneess 23

United States v. Coats,

611 F.2d 37 (4th Cir. 1979),

cert. denied April 21, 1980, No. 79-1230 ........... 2, 36, 37, 38

United States. v. Coppolo,

i i i CEE . vcs ccceccccenenerevesteséoese 14

United States v. Cortes,

ERLE RE SEPT 16

United States v. Crews,

Nd on ne cia eben eensingeie’ 25, 26

United States v. Duckett,

i Pn 2... censheeseeseuseeneeses 32, 34

United States v. Dyar,

Ee oan ck. wee cate senseeseeee 31

United States v. Erwin

(Sth Cir. J ly 3, 1979), cert. denied,

DED « ccncas cn cvecucéveccesenas 16, 17

United States v. Falcone,

oe | a dk Sinai eee e 31

United States v. Freeman,

on os 0 ae tka bvew ena ueeneeun 15, 16

United States v. Grant,

ee a a ch ee bones easeeene %

United States v. Gutierrez,

ee Dn. cee cbeecdnescetesecee 30, 31

United States v. Hayes,

ee a ee a rue bebe hk Oeences 14

(xii)

United States v. Hillstrom,

ne EC sa arn bd bes uh eoueestikababens 15

United States v. Izzi,

ee, cc ewan eb éeba cs cabeeseeks 29

United States v. Kissel,

ea a i we CEN Gea ue emlee ees mean 29

Uniied States v. Lee,

ON ca kk dn eK SOR ane yak wee KEN 's 14, 20

United States v. Lee Foo Yung,

Ps BSF Cacti Fn as NOTED viccccccesececescecseseceuss 29

United States v. Littrell,

Pe nein bc 6as bade keee oe ess eedaun ss 31

United States v. Malatesta,

590 F.2d 1379 (Sth Cir. 1979) (en banc) .... 6... ee ce ees 34

United States v. Martinez-Fuerte,

ee a i eud nade bessescucveeessebaud 22, 23

United States v. Maskeny,

609 F.2d 183 (Sth Cir. 1980),

ee ec Cen e sek i whecnebeueed esa’ 39

United States v. Montgomery,

Ew fe] Lee ey) COE eE Relat as ean 23

United States v. Morello,

er Ns BED ou 60-04 56-05 Sv ayes pewiechesea quences 29

United States v. Od ieal,

Pe ee Es FFE ov otinceccccessesvssees eeecceees 14

United States v. Odom, ,

a sce ghee eakeek abba uns veces 15

United States v. One 43 Foot Sailing Vessel,

EN, CE aap UGh'd cd dae evans eeonciwew sens 15

(xiii)

Page

United States v. Piner,

Be Fe Gs FETED wc cccccdcvecccncuceveseceresons 14

United States v. Peterson,

rr re asc ance en bebene abeesbaue 33

United States v. Powers,

a I Os BO, cue wecncectececiveventvsess 14

United States v. Raddatz,

592 F.2d 976 (7th Cir. 1979),

Lee Gee Gs woke ck eiee eee eRav eh ewhs 27, 28

United States v. Ramsey,

a ca Aah picks ead IN ARRAS ee Kb 17

United States v. Rodriguez,

Se ee ls UTED bb ices ec ceeecescunetacccices 30, 31

United States v. Romano,

ES SS a oa. x eae ks be a Oe ee hh OS 31

United States v. Ross,

468 F.2d 1213 (9th Cir. 1972),

i voc pe i cdac secs Kacbns ber eentee 37

United States v. Rubies,

612 F.2d 397 (Sth Cir. 1979), cert.

pe a, Se 15

United States v. Serrano,

rr, Ce sic cva serine eek ake phieen 4 16

United States v. Stanley, ;

cc oy du ss dss soheses cakba bs bw ek 15

United States v. Stroupe,

ee areca eneces eu scebhea shawn 31

United States v. Test,

550 F.2d 577 (10th Cir. 1976) (en banc)

es is NT, BEE as 605 a bios ow ee ceuns pees dunes 37

(xiv)

Page

United States v. United States District Court,

Ge Uy Be CHOOe iv nce Vievncbees a4 s0aab eueelseeeee 20

United States v. Valenzuela,

FRO T SPA Ge FOTO inc ccconcvinvetccctaticntenae 32

United States v. Warren,

578 F.2d 1058 (Sth Cir. 1978) (en banc)... 0... eee eee 15

United States v. Whitmire,

595 F.2d 1303 (5th Cir. 1979),

BPC ne Fe 16, 17

United States v. 63 Kegs of Malt,

rye ge le | rrr rrr ee 14

Washington v. Davis,

Le | rr nn 37

Wong Sun v. United States,

SFE UE BE CHO 6 0.0 bons 0bueees bec neeens eee 25

Ybarra v. Illinois,

SUPE DEOCINTOE 506-6 eke cocewerseeees shcaeeeee a2, 43

Constitution:

Asticbe 2, Goction 8 x... sccncecccwesstteveneunsnceeasneeenes 5

Pee OE (nik nn cucdcdccdscsveesnsaueaas eaeeneeeee 5, 28

Pourth Am o.oo cc vcncecvcovacesseounsees 5, 19, 23, 26

DIR MeO o.oo occ ic ccsccctcccesntwcs cheese baeeeneenee 5

Sith AONE «oo ccc scccccvncéucstebeveresseseuas 5, 37

Statutes:

BREESE, COD occcccccvccnccccnencanccesuncecessesauuns 5, 19

SOR B. OOD gcc ccvccveccvcsvscesssesusouscuenegey aenuees 5

DOUG... © ABE. cnr ccnccscecccccsenceseseune tess eneeenenee 19

(xv)

Page

ee ec bh ich c cc Sebeeinccsteeeteaeeetaesyat 19

cence ae sewed venenccaneeasentcacesaseees 5

Ne CEL AS EG AC ae DACA sar eA SRC eeeS ee uneseebas 5

Eee ee ee ee eee eee 3, 26, 27

ana ca ges eencseesatvecenescuctcunesenaes 2

eee reer re eee 4, 5, 35

Regulations:

EE UEDEND TED voce cc cccccncccccccsseccecceese 5

Miscellaneous:

A.L.I. Model Penal Code § 5.03(7)(1)

Te. eds kes cee e nee ee nese cndess ues 30

Cecunent, Ce, CEPEROOED oo ccccccccavevctesenesss 17

ee Wi, 0. SUSY, GUN CISTE) 2... ccc cece cccccccnccvcces 34

Munsterman, G., et al., Multiple Lists

Sar Favor Selection (L..E.A.A. 1978) ...... 2. cccccccccccccees 40

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

DONALD WINSTON HARPER, NEIL WILSON

ROWE, JAMES MERRILL BURDINE, JOHN

WHITE, DAVID RAY JENKINS, DAVID RAY-

MOND GOVUS, DONALD ALFRED BLACK,

GARY REGAN TALBERT, RICHARD LEWIS

JACKSON, MICHAEL BENJAMIN FORBES and

ROBERT McNEILL HERRING,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Petitioners Donald Winston Harper, Neil Wilson Rowe,

James Merrill Burdine, John White, David Ray Jenkins,

David Raymond Govus, Donald Alfred Black, Gary Re-

gan Talbert, Richard Lewis Jackson, Michael Benjamin

Forbes, and Robert McNeill Herring respectfully pray that

a writ of certiorari issue to review the judgment and opi-

nion of the United States Court of Appeals for the Fourth

Circuit entered in this proceeding on February 13, 1980.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet reported,

is reproduced in the Appendix. That opinion, in its foot-

note 4, incorporated part of the opinion in United States

v. Coats, 611 F.2d 37 (4th Cir. 1979), cert. den. April 21,

1980, No. 79-1230, and that part is also reproduced in the

Appendix. The District Court did not render an opinion.

Two Orders of the District Judge and six Memoranda and

Recommendations of the Magistrate are also reproduced

in the Appendix.

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on February 13, 1980. The Court of

Appeals denied a timely petition for rehearing and sugges-

tion for rehearing en banc on March 26, 1980. It then

stayed its mandate on April 2, 1980 pending the filing of

an application for certiorari. The Chief Justice entered an

order on April 17, 1980 extending the time for filing a peti-

tion for writ of certiorari to and including May 24, 1980.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Whether the stopping, boarding and searching

without probable cause or even reasonable suspicion and

without a warrant of an American fishing vessel on the

high seas 800 miles off the coast of the United States by a

Coast Guard cutter whose primary mission was marijuana

law enforcement can be justified under the Fourth

Amendment as a border search, an administrative search

or a “necessary” search.

2. Whether the stopping without probable cause or even

reasonable suspicion of cars traveling on a highway in the

general vicinity where a raid on a marijuana unloading

operation had occurred three hours earlier violated the

Fourth Amendment.

3. Whether statements given by fatigued seamen who

were in custody but deliberately not taken before a magis-

trate, who were discouraged from seeking counsel, and

who were promised consideration if they cooperated and

threatened with stiff sentences if they did not, were in-

voluntary and therefore obtained in violation of due pro-

cess.

4. Whether a voice identification obtained in jail of a

defendant who had been arrested without probable cause

should have been excluded as the fruit of the unconstitu-

tional arrest.

5. Whether the failure of the District Judge to make a de

novo determination of the Magistrate’s recommendations

on motions to suppress evidence — because he did not per-

sonally hear the evidence, did not even review the trans-

cript of the hearing, and did not enter orders on most of

the motions — violated Article III, the Sixth Amendment,

and the Federal Magistrates Act, 28 U.S.C. section 636.

6. Whether the conspiracy to import marijuana ended

with the seizure of the vessel transporting the marijuana

and the arrest of her crew, or with the completion of the

importation, so that persons who became involved only

thereafter in the distribution of the marijuana could not be

convicted of the completed conspiracy to import it.

7. Whether the presence of three persons in a house

belonging to one of them in the general vicinity of a mari-

juana unloading operation, or the presence three hours

later on a nearby highway of two other persons driving in

opposite directions in cars rented in a fictitious name used

by one of the persons in the house, constituted sufficient

acts to further a conspiracy to import marijuana to prove

beyond a reasonable doubt that those persons were mem-

bers of the conspiracy.

8. Whether a prima facie case for violating the Fifth and

Sixth Amendments and the Jury Selection and Service Act

of 1968, 28 U.S.C. sections 1861-1871, was established by a

showing that the District Court used a list of actual voters

as the sole source of names for jury selection and that

practice resulted in a non-cross-sectional jury with an

under-representation of black, young and low socio-

economic status persons. '

‘Conditional Questions Presented: Petitioners would like to reserve

their right to argue the following questions if certiorari is granted, but

do not present them as reasons for issuing the writ:

(A) Whether the search of a house that followed an unconstitu-

tional entry onto the property and occupation of the house while a

search warrant and purported consent were obtained violated the

Fourth Amendment because: (i) the affidavit in support of the war-

rant did not establish probable cause to believe that evidence would be

found in the house as opposed to the vicinity outside the house, and

(ii) the purported consent was given involuntarily by an elderly frail

and ill man who was in custody for eleven hours but had not been

given his medicine, any food or rest, and was not told of his right to

refuse consent, and who, although a nominal lessee with his son of the

property, did not live in or control the house, and who believed that he

was consenting only to a search of the property outside of the house;

(B) Whether the identifications of petitioners Black and Burdine

were sufficient to support their convictions;

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The Constitutional provisions involved are Article I,

Section 1, Article II1, and the Fourth, Fifth and Sixth

Amendments to the United States Constitution. The stat-

utory provisions involved are 14 U.S.C. sections 89 and

143, the Federal Magistrates Act, 28 U.S.C. section 636,

and the Jury Selection and Service Act of 1968, 28 U.S.C.

sections 1861, 1862, 1863(a), 1863(b)(2) and (3), and

1867(a). The regulatory provision involved is 19 C.F.R.

section 162.3(a) (1977). These are set out in the Appendix,

as permitted by Rule 23(1)(d).

STATEMENT OF THE CASE

Petitioners were convicted in the United States District

Court for the Eastern District of North Carolina, after a

bench trial, of conspiracy to import marijuana into the

United States in violation of 21 U.S.C. sections 952(a) and

960(a)(1). They filed pretrial motions for suppression of

evidence seized in several searches and of statements given

by two of them. The Magistrate held an evidentiary hear-

ing On the suppression motions and issued Recommenda-

tions on each. Petitioners filed timely written objections to

response to a question from an arresting officer after his arrest and

before he had been advised of his Miranda rights was obtained in

violation of the Fifth and Sixth Amendments; and

(D) Whether a notebook seized from the house at Back Creek

was improper'y admitted into evidence because the Government pro-

duced no evidence to identify it or its author or to show that it related

to the conspiracy and because it constituted hearsay not subject to

confrontation by cross-examination.

Not all of the facts relevant to these conditional questions are de-

tailed in this petition.

those Recommendations. The District Judge did not hear

the testimony or even read the transcript of the motions

hearing, A. 250A, 253A,* and issued Orders on only two

of the motions, denying them.

I. Operation Stopgap

In the fall of 1977, the Drug Enforcement Administra-

tion (DEA) established a marijuana mission called

“Operation Stopgap”. The purpose was to coordinate the

efforts of DEA, the Customs Service, the Coast Guard,

the El Paso Information Center and the Immigration and

Naturalization Service in an effort to seize vessels

transporting marijuana from Columbia to the United

States and to arrest the crews aboard the vessels. Pursuant

to Operation Stopgap, the Coast Guard deployed one cut-

ter in each of the three principal passages used by vessels

traveling between South America and the United States.

The plan was for DEA aircraft to observe marijuana load-

ed onto vessels in Columbia, follow the vessels until they

headed for one of the three passages, then notify the

appropriate Coast Guard Cutter to stop and board the

vessel.

Pursuant to Operation Stopgap, the Coast Guard Cut-

ter Alert was assigned to patrol the Mona Passage between

Puerto Rico and the Dominican Republic. The principal

purpose of the Alert’s mission was marijuana law enforce-

ment.

The Alert arrived in the Mona Passage on January

13, 1978. There it found little traffic and received no in-

telligence from DEA. The Captain therefore decided to

*“A .” refers to the Appendix filed in the Court of Appeals. “App.”

refers to the Appendix to this petition.

board every American vessel under 250 feet in length. A.

336-337, 445-446. Pursuant to that shipboard decision, the

Alert made six boardings. It found no violations of any

kind on the first five ships boarded.

After dark on January 26, 1978, the Alert encountered a

shrimp trawler. The Alert’s helicopter reported that she

was a fishing vessel between seventy and eighty feet in

length named the Lady Ellen, and that she was from North

Carolina. By checking with the El Paso Information Cen-

ter, the Alert determined that the Government had no in-

formation about the vessel. Thus, the Coast Guard had no

information that the vessel or her crew was involved in any

law violation or had recently crossed the American border.

A. 342C, 445-446. Moreover, the Coast Guard did not

have a warrant or other judicial authorization to stop,

board or search any vessel. Nevertheless, the Captain of

the Alert radioed the Lady Ellen to heave to, and dispatch-

ed a boarding party of four officers.

The boarding party was transported to the Lady Ellen in

a small boat operated by a coxswain and two other per-

sons. Each member of the boarding party carried a pistol

and one person in the boat had a riot shotgun. Over an

hour after ordering the Lady Ellen to heave to, the Coast

Guard party boarded her. The boarding was hazardous

because of rough seas, and succeeded only with the help of

the crew on the Lady Ellen.

On board the vessel, the boarding officer identified

himself to the crew, which consisted of the Captain, Paul

Breslin, and petitioners Harper and Rowe,? and asked:

“Where are you coming from and going?” Breslin an-

?The crew had been assembled and was acting under the direction of

petitioner Govus.

swered, “You’ve got me. We are coming from Columbia

and are loaded with marijuana.” An officer advised the

crew Of their Miranda rights and then searched the vessel

thoroughly to locate the marijuana. He found it in the

main hold.

II. The Controlled Delivery

The Coast Guard took custody and control of the Lady

Ellen and her cargo, operating her with a Coast Guard

crew. Breslin, Harper and Rowe were kept on the Lady

Ellen under armed guard that night. Already fatigued

from twenty days at sea in rough weather, they got little

sleep. The next morning, January 27, 1978, they were

transferred to the Alert.

The Coast Guard knew that both the Coast Guard Boar-

ding Manual and Rule 5 of the Federal Rules of Criminal

Procedure required that their prisoners be taken before a

Magistrate. They also knew that there was a Magistrate in

Puerto Rico and that the ship’s helicopter could take them

there. Nevertheless, the Coast Guard Commander at shore

headquarters made a high-level decision deliberately not to

have Harper and Rowe taken before a Magistrate in order

to protect plans to use them to conduct a “cojiitrolled

delivery” of the marijuana. A. 302, 304-304B.

A helicopter brought DEA agent Felix Jimenez on

board the Alert from Puerto Rico to arrange the controll-

ed‘delivery. Customs Patrol Officer Martinez, who had

been on the Alert, read the crew their Miranda rights.

They said that they understood them and signed Miranda

waivers.

Agent Martinez instructed the three crew members that

it was necessary for them to cooperate. He and Agent

Jimenez told them that if they did cooperate in helping

catch other persons, the Government would not be in-

terested in them and “would talk to the judge in a con-

sideration for them.” A. 401. The agents also told the crew

members that if they were taken to Puerto Rico they

would get high bonds and stiff sentences of five to ten

years, but that on the mainland the judges were more le-

nient in marijuana cases and would give probation. A.

162, 463. Breslin and Harper asked about a lawyer. Agent

Jimenez told them that would ruin the deal — “it’s either

you cooperate and you make the convoy, or you go to

Puerto Rico and we charge you and you can have your

lawyer.” A. 838. That night Harper and Rowe gave written

statements that were introduced in evidence against them.

They also agreed to cooperate in the controlled delivery.

Several days later Breslin, Harper and Rowe were put

back on the Lady Ellen under Coast Guard surveillance.

Radio messages to the Lady Ellen, monitored by the Coast

Guard, directed the Lady Ellen to the North Carolina

area. The Government stipulated that “Breslin, Harper

and Rowe imported marijuana into the United States

through the Beaufort Channel at approximately 9:00 P.M.

on February 4, 1978.”4 A. 99, 101. Another person then

came on board the Lady Ellen and steered the vessel to

Back Creek. That person wore winter clothing, including a

parka with a hood mask that covered his face. Breslin later

met petitioner Forbes in jail, questioned Forbes, and

recognized his voice., On that basis, he identified Forbes

as the person who piloted the Lady Ellen to Back Creek.

He had never seen Forbes before.

3Breslin also gave a statement. He testified as a Government wit-

ness at trial in exchange for immunity.

‘The Government further stipulated that “Breslin, Harper and

Rowe were working on behalf of the United States from January 27,

1978 until February 5, 1978.” A. 99.

The trip to Bae® Creek took six hours. At 3:00 A.M. the

Lady Ellen dropped anchor. Several boats care alongside

and a number of men boarded and unloaded the cargo.

Petitioner Govus came on board and told Breslin to

monitor the radio for lookouts.

After an hour, two radio calls reported small boats ap-

proaching at high speed. Govus told Breslin to get the ves-

sel underway, and he did. A law enforcement boat stopped

the Lady Ellen in the Intracoastal Waterway, however,

and arrested the three crew members and four others, in-

cluding Petitioners Black and Burdine, on board.

Iii. The Searches at Back Creek

Several law enforcement officers converged on the Back

Creek area by land. They approached it on a narrow ru-

ral dirt road. State Bureau of Investigation (SBI) Agent

Charles I. Overton, III and DEA Agent Edward R. Hinch-

man arrived first, at 4:00 A.M., followed by DEA Agent

Odis Rousseau and several others. They drove until the

road was blocked by an abandoned house trailer and a

chain gate. On a nearby tree the property was “Posted

Keep Out.” They removed the chain and entered the pro-

perty.

Agents Overton and Hinchman walked about 75-100

yards from where the road was blocked to a dock with a

wooden shed nearby. A boat tied up at the dock had

marijuana On it. Two large van type trucks were backed up

within five or ten feet of the dock. A pickup camper and

smaller trucks were nearby. Hinchman and Rousseau

looked in the trucks and saw no contraband in them. The

trucks were lined with plastic bagging held in place by duct

tape.

The agents saw an elderly man who appeared frightened

and feeble lying face down in a marshy area nearby. The

temperature was cold and there was ice on the marsh. The

man was Peter Forbes, a 65-year-old commercial fisher-

man who had severe high blood pressure, had suffered a

stroke just six months earlier, and needed to take con-

siderable medication every day. The agents lifted him by

his arms and arrested him.

The agents saw three occupied houses in the area and

approached one that was 75-100 yards from the dock.

They climbed onto the porch, knocked on the door, iden-

tified themselves and asked if they could come in. A voice

from inside said, “Come in.” The officers opened the door

and entered. Petitioners White, Jackson and Jenkins were

inside wearing heavy work clothes and long rubber boots.

The agents arrested all three. On a coffee table were a CB

transceiver and a scanning radio receiver, which were com-

mon for people to have in that area. There were also a pair

of work gloves and flashlights on the couch. Hinchman

asked White to produce his wallet. He looked in the wallet

and read the name “Leroy Joseph Edwards”, and gave the

wallet back. He asked Jackson whether he lived in the

house and Jackson answered that he did.‘

The agents set up the house as the command post for the

law enforcement operation. Two or three hours later, a

deputy sheriff saw petitioner Michael Benjamin Forbes

standing on the roadside near the driveway to the house,

where he lived, and arrested him.

‘The property and house were leased by Peter Forbes and his son,

petitioner Michael Benjamin Forbes, for a commercial fishing opera-

tion that they ran along with Jackson. Michael Benjamin Forbes and

Jackson lived in the house.

IV. “Operation Stopcars”

DEA Agent Johannesen and SBI Agent Paul Bateman

drove to a place on the main highway about one mile from

the dirt road to Back Creek. They parked off the road in

the woods. Their purpose was to stop every car going in

either direction. They did not block the road; instead they

concealed themselves in the woods until a car approached,

then pulled into the road and put a blue light on the

dashboard of their unmarked car to signal the other car to

stop.

The agents stopped several cars. In most cases, they

merely noted information from the licenses of the drivers.

The first car that the agents stopped was driven by a nurse.

The next car was driven by petitioner Talbert. It was going

northbound, in the general direction of, rather than away

from, the raid site, on the route it would follow if it were

coming from any number of places, including the Town of

Beaufort, the several places surrounding it, and all points

south. This was during daylight, three hours after the raid.

The agents pulled their cars into the road and stopped

the car that Talbert was driving. They asked for his

driver’s license and registration. He produced his North

Carolina driver’s license and a rental agreement that

revealed that the car had been rented from Raleigh Rent-

A-Wreck by LeRoy Edwards.

Agent Johannesen testified that the agents “did not have

probable cause” or even suspicion to stop the Talbert car.

A. 698-699, 706. They stopped it just because they were

stopping all cars. A. 705, 706.

Other officers arrived and parked their cars in the

highway. Petitioner Herring approached from the north

(the direction of the Town of Merriman and also the dirt

road to the house at Back Creek) driving a gray Plymouth.

The officers stopped his car. They requested his driver’s

license and vehicle registration. He produced a Georgia

driver’s license and a lease agreement from Rent-A-Wreck

of Raleigh, also in the name of LeRoy Edwards. Agent

Bateman testified that he did not believe the officers had

probable cause to stop or arrest Herring. A. 754.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW IS IN CONFLICT WITH THE

DECISIONS OF THIS COURT, OF OTHER COURTS

OF APPEALS, AND OF STATE COURTS ON THE

CONSTITUTIONALITY OF THE STOPPING AND

BOARDING OF A VESSEL ON THE HIGH SEAS

WITHOUT PROBABLE CAUSE OR EVEN REASON-

ABLE SUSPICION AND WITHOUT A WARRANT.

This case presents important questions that are being

raised in a rapidly increasing number of cases regarding

the constitutionality of Coast Guard searching activity at

sea. The decision below is in conflict with decisions of this

Court and of other federal and state appellate courts on

those questions.

In this case, the Coast Guard officers who stopped and

boarded the Lady Ellen were engaged in a law enforce-

ment operation concentrating on marijuana smuggling.

They had no search warrant and no information identify-

ing the Lady Ellen as involved in marijuana, fisheries,

safety, documentation or any other violations. The stop

occurred on the high seas 800 miles from the United

States, and the Coast Guard had no information that the

Lady Ellen had recently crossed any American border.

A. Conflicts as to Standards for Searches at Sea.

The decision below upholding the constitutionality of

that action is in direct conflict with the decision of this

Court in United States v. Lee, 274 U.S. 559, 562-563

(1927); see also, Little v. Barreme, 6 U.S. (2 Cranch) 170,

179 (1804). In Lee, this Court stated: “Officers of the

Coast Guard are authorized . . . to board anc search

[American vessels on the high seas] when there is probable

casue to believe them subject to seizure for violation of

revenue laws... . The authority asserted is not as broad as

the belligerent right to visit and search even without pro-

bable cause.” United States v. Lee, supra at 562-563.° The

decision below is also in conflict with the recent deci-

sion of the Ninth Circuit in United States v. Piner, 608

F.2d 358 (9th Cir. 1979), which held that a Coast Guard

stopping and boarding of a boat in San Francisco Bay for

a routine safety and document inspection after dark re-

quires “at least a reasonable and articulable suspicion of

noncompliance, or must be conducted under administra-

tive standards so drafted that the decision to search is not

left to the sole discretion of the Coast Guard officer.” Jd.

at 361. Similarly, in United States v. Odneal, 565 F.2d 598

(9th Cir. 1977), the Ninth Circuit upheld a Coast Guard

stopping of a vessel for a safety inspection because it had

observed dangerous safety violations. The Court said that

if the stopping were not for that purpose, the Coast Guard

6The decision below is also in direct conflict with a series of prohibi-

tion era decisions in the Second Circuit that followed Lee and held

that probable cause is required for Coast Guard boardings to look for

violations of the prohibition law. Fish v. Brophy, 52 F.2d 189,

200-201 (S.D. N.Y. 1931); United States v. Coppolo, 2 F.Supp. 115,

116-117 (D. N.J. 1932); United States v. Powers, | F.Supp. 458, 460

(E.D. N.Y. 1932); see also, United States v. Hayes, 52 F.2d 977, 978

(E.D. N.Y. 1931); United States v. 63 Kegs of Malt, 27 F.2d 741, 742

(2d Cir. 1928); Arch v. United States, 13 F.2d 382, 384 (Sth Cir. 1926).

would need to have at least a “founded suspicion that the

vessel was engaged in illegal activity.” Jd. at 601 n.2; see

also, United States v. Rubies, 612 F.2d 397, 402, 404 (Sth

Cir. 1979), cert. pending, Nos. 79-1297 and 79-5954. The

same Court, in United States v. Stanley, 545 F.2d 661

(9th Cir. 1976), upheld a Coast Guard boarding on the

ground that it was a border search. /d. at 667. The Court

indicated that away from the border or its functional

equivalent the Coast Guard would need probable cause.

Id. at 664.

Two state courts have reached similar results. People v.

Nissen, 97 Misc.2d 1000, 412 N.Y.S.2d 999, 1003-1007

(Sup. Ct. 1979); Casal v. State, 375 So.2d 1077, 1078 (Fla.

App. 1979). In addition, in Klutz v. Beam, 374 F.Supp.

1129 (W.D. N.C. 1973), a three-judge Court in the Fourth

Circuit held that safety inspections of private boats may

not be conducted by state officers without regard to the

warrant requirement of the Fourth Amendment.

In upholding the Coast Guard search activity, the deci-

sion below appears to be in accord with Fifth Circuit

decisions allowing the Coast Guard to stop and board

vessels without probable cause, but that Circuit has gen-

erally done so only for safety and documentation inspec-

tions, a procedure not presented in this case.’ The Fifth

Circuit has required at least a “reasonable suspicion of il-

legal activity” for a stopping and boarding conducted for

purposes other than a safety and documentation inspec-

’United States v. Warren, 578 F.2d 1058 (Sth Cir. 1978) (en banc);

United States v. Hillstrom, 553 F.2d 209, 210 (Sth Cir. 1976); United

States v. Odom, 526 F.2d 399, 342 (Sth Cir. 1976); see also, United

States v. Cadena, 585 F.2d 1252, 1257 (Sth Cir. 1978), rehg. den. 588

F.2d 100 (Sth Cir. 1979); United States v. Freeman, 579 F.2d 942,

946 (Sth Cir. 1978); c/., United States v. One 43 Foot Sailing Vessel,

538 F.2d 694 (Sth Cir. 1976), af/fg. 405 F.Supp. 879, 883 (S.D. Fla.

1975).

tion. United States v. Serrano, 607 F.2d 1145, 1147-1148

(Sth Cir. 1979); United States v. Whitmire, 595 F.2d 1303,

1308, 1315, 1316 (Sth Cir. 1979), cert. pending, No.

79-375; United States v. Cortes, 588 F.2d 106, 110-111

(Sth Cir. 1979); United States v. Cadena, supra at 1263

n.23; United States v. Freeman, supra at 342; see also,

United States v. Acosta, F. Supp. : (S.D.

Fla. 1980), 27 Cr.L.Rptr. 2100.

In a recent summary decision, however, the Fifth Cir-

cuit upheld a random Coast Guard stopping and boarding

for a safety and documentation inspection where the of-

ficers also wanted to inspect for obvious customs and nar-

cotics violations. United States v. Erwin (Sth Cir. July 3,

1979), slip opinion at 2. The Court said that “the Coast

Guard has plenary authority to board a vessel beyond the

twelve-mile limit without probable cause or any partic-

ularized suspicion.” Jd.

The defendants in Erwin filed a petition for certiorari in

this Court, but did so three days out of time. E win v.

United States, No. 79-579. The Government filed a Brief

in which it took the following position:

“[W]e do not oppose the petition for certiorari in

light of the substantial importance of the issue

presented and the uncertainties created by this

Court’s decision in Prouse and the Ninth Cir-

cuit’s decision in Piner.” Id., Brief for the United

States at 9.

The Government suggested, however: “The Court may

nevertheless wish to consider whether review should be

declined on account of the untimeliness of the petition in

this case.” Jd., Brief for the United States at 9 n.6. On

February 19, 1980 this Court denied certiorari without

comment. /¢., 100 S.Ct. 1014 (1980).

This Court should grant certiorari in this case to resolve

the conflict between the Fourth and perhaps the Fifth Cir-

cuits on the one hand and the Second and Ninth Circuits

and the state courts on the other on this issue, which the

Government in its Erwin brief correctly characterized as

an important one.

B. Conflicts as to Border Searches.

The decision below upheld the stopping and boarding

under an amalgam of theories: border search, administra-

tive or regulatory search, and high seas or necessary

search. None of those theories is justified on the facts. See

Comment, 93 Harv. L.Rev. 725, 750, 751 (1980).

The Court of Appeals said: “[W]e hold that the stop and

boarding was lawful, absent any particularized suspicion

of criminal activity aboard, because it was undertaken as a

systematic ‘border’ stop and inquiry.” App. 4a-S5a. That

rationale is in conflict with the basic principle of border

search doctrine.

The stopping and boarding was conducted on the high

seas more than 800 miles and ten days sailing from the

border — outside of the United States — not at the border

or its functional equivalent. See A/meida-Sanchez v.

United States, 413 U.S. 266, 272-273 (1973). The “critical

fact [for a border search] . . . that the [person or item]

cross the border and enter this country,” United States v.

Ramsey, 431 U.S. 606, 616 (1977), was not established.

See United States v. Whitmire, supra at 1307-1308. The

officers had no reason to believe that there had been a

crossing into the country and certainly not a recent one.

The American naifunality of the vessel suggested that it

may have exited the country at some unknown time in the

past but the officers had no reason even to suspect that it

carried contraband at that time.

The decision below, concluding that the stopping and

boarding could be justified as a border search “albeit

800 miles at sea,” App. 7a, without citing a single support-

ing precedent effectively declared international waters to

be the equivalent of the American border, thus exempting

all searches at sea from the Fourth Amendment. The ef-

fect is that Coast Guard boardings of American vessels at

sea are subject to no standards or restrictions. This Court

has never approved unconstrained searches of that kind or

suggested any rationale for doing so. See Delaware v. Pro-

use, 440 U.S. 648, 661 (1979).

C. Conflicts as to Administrative Searches.

The stopping and boarding was a major time-consum-

ing Operation conducted by armed officers at night under

hazardous conditions, including an interrogation of the

master and a search throughout the vessel, for the prin-

cipal purpose of detecting violations of the marijuana

laws. It was not an administrative or regulatory search for

enforcement of the navigation, safety or administrative

laws. See Torres v. Puerto Rico, 442 U.S. 465, 473 (1979).

In the only two cases in which this Court has upheld an ad-

ministrative search on that ground, the search was con-

ducted solely for the purpose of enforcing extraordinary

regulatory objectives. United States v. Biswell, 406 U.S.

311 (1972); Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970); see Almedia-Sanchez v. United States,

413 U.S. 266, 271 (1973); see also, Marshall v. Barlow’s

Inc., 436 U.S. 307 (1978). Moreover, the administrative or

regulatory search doctrine does not authorize a forcible

search. It has only been used to uphold statutes making it

an offense to refuse admission to an inspector. Colonnade

Catering Corp. v. United States, 397 U.S. 72, 77 (1970).

The decision to stop and board every United States

vessel under 250 feet in length was made solely by the of-

ficer in the field, the Captain of the Coast Guard Cutter.

Operation Stopgap assigned to the Cutter the responsibili-

ty of stopping only vessels that it had probable cause to

believe were smuggling marijuana. The probable cause

was to be obtained primarily by DEA air surveillance, and

also by earlier intelligence about the vessels, or by the

suspicious circumstances of the vessels. The Captain

decided on his own to board all vessels because the DEA

had not notified him of any vessels to stop and because

there was little traffic in the Mona Passage.

D. Conflicts as to “Necessary” Searches.

The Government made no showing of a critical need for

authority to conduct boardings for either criminal law or

safety and documentation purposes without a warrant and

probable cause or reasonable suspicion. Cf., A/meida-

Sanchez v. United States, supra at 273 n.5. One central

teaching of Delaware v. Prouse, 440 U.S. 648, 658-661

(1979), is that the necessity must be demonstrated, not

merely asserted, to have any effect on a Fourth Amend-

ment analysis.

The only official governmental position on the ap-

propriate standard for Coast Guard boardings is the

Treasury Department Regulation in 19 C.F.R. section

162.3(a) (1977), which provides:

“A customs officer [which includes a Coast

Guard officer enforcing the Customs law, 14

U.S.C. §89(b), 19 U.S.C. §§1401(i), 1709(b)], for

. the purpose of examining the manifest and other

documents and papers and examining, inspecting

and searching the vessel, may at any time go on

“(2) Any American vessel on the high seas, when

there is probable cause to believe that such vessel

is violating or has violated the laws of the United

states... .”

14 U.S.C. section 89(a) authorizes the Coast Guard to stop

and board American vessels on the high seas, but it does

not define the circumstances under which that authority

may be exercised. The statute provides that Coast Guard

officers “may at any time go on board of any vessel” and

the regulation specifies the standard for the exercise of

that authority by declaring that they “may at any time go

on board any American vessel on the high seas when there

is probable cause.” The Government’s position in United

States v. Lee, supra, was also that probable cause was re-

quired.

By upholding the Coast Guard conduct as constitu-

tional, the decision below yielded to the predictable law

enforcement pressures for relaxation of Fourth Amend-

ment standards in order to make it easier to convict mari-

juana importers. This Court, by contrast, has repeatedly

refused to dispense “with the fundamental Fourth Amend-

ment prohibition against unreasonable searches and seiz-

ures simply because of a generalized urgency of law en-

forcement.” Torres v. Puerto Rico, 442 U.S. 465, 474

(1979). Thus, this Court has refused to abandon Fourth

Amendment requirements in connection with threats to

domestic security, United States v. United States District

Court, 407 U.S. 297 (1975), and the smuggling of fire-

arms, explosives and narcotics, Torres v. Puerto Rico,

supra, and aliens, Almedia-Sanchez v. United States,

supra at 273-274, as well as with regard to murder, arson,

rape, robbery and burglary. E.g., Mincey v. Arizona, 437

U.S. 385, 394 (1978); Michigan v. Tyler, 436 U.S. 499, 508

(1978). No reason appears why it should do so with regard

to alleged importation of marijuana.

Il.

THE STOPPING WITHOUT PROBABLE CAUSE OR

EVEN REASONABLE SUSPICION OF CARS IN

THE GENERAL VICINITY WHERE A MARIJUA-

NA UNLOADING OPERATION HAD OCCURRED

THREE HOURS EARLIER RAISES AN IMPORTANT

FOURTH AMENDMENT QUESTION.

This Court has repeatedly held that the non-consensual

search of an automobile that is not in police custody may

be accomplished only when the officers have probable

cause or at least “ ‘some quantum of individualized suspi-

cion.’ ” Delaware v. Prouse, 440 U.S. 648, 654-655 (1979);

Almeida-Sanchez v. United States, 413 U.S. 266, 270

(1973); Chambers v. Maroney, 399 U.S. 42, 47-48, 49

(1970); Dyke v. Taylor Implement Mfg. Co., 391 U.S.

216, 221-222 (1968); Carroll v. United States, 267 U.S.

132, 159-160 (1925). The Court has applied that require-

ment to the stopping of an automobile as well as the

searching of it. Henry v. United States, 361 U.S. 98, 103

(1959); Brinegar v. United States, 338 U.S. 160, 176

(1949); see also, Rios v. United States, 364 U.S. 253,

261-262 (1960); Potter v. United States, 362 F.2d 493, 499

(Sth Cir. 1966). “Automobile or no automobile”, the

Court said in a case involving the validity of the stopping

of one, “there must be probable cause for a search.”

Almedia-Sanchez v. United States, 413 U.S. 266, 269

(1973). The Court staied recently that “probable cause has

not been abandoned as a requirement for stopping and

searching an automobile.” Marshall v. Barlow’s, Inc., 436

U.S. 307, 315 n.10 (1978).

The probable cause (or suspicion) must be “individual-

ized”, Delaware v. Prouse, supra, that is, directed towards

the particular individual or vehicle to be searched or seiz-

ed. Ybarra v. Illinois, 100 S.Ct. 338, 342 (1979); Brown v.

Texas, 443 U.S. 47, 51-52 (1979); United States v.

Martinez-Fuerte, 428 U.S. 543, 555-556 (1976); United

States v. Brignoni-Ponce, 422 U.S. 873, 881, 882 (1975).

In this case, two law enforcement officers decided to

stop every car traveling on the main highway in the vicini-

ty of the raid site regardless of whether the car was going to-

wards or away from the raid site and regardless of whether

the officers had any reason to single out the particular

car. They decided to hide in the woods in their unmarked

car, wearing plain clothes, and drive into the highway to

surprise and stop each car that passed. Pursuant to that

plan, the officers stopped several cars. Two of the cars

that they stopped were driven by petitioners Talbert and

Herring. They were traveling separately in opposite direc-

tions. The stopping occurred three hours after the raid. As

the officers admitted, they had no reason to single out the

Talbert or Herring cars from the rest of the traffic on the

highway that morning, and certainly did not expect any

suspects to be driving towards the raid site so long after

the raid.

The decision below upheld the stopping of the cars on

the following rationale:

“A serious crime had been committed involving

numerous participants, some of whom were

known to be fleeing the scene along a route

reasonably expected to be used for their escape.

Stopping all cars there was, under the cir-

cumstances, a necessary means of law enforce-

ment, and as such, justifies the minimal intrusion

on privacy rights posed to passing motorists.”

App. 13a.

That holding ignored the Fourth Amendment require-

ment for an individual justification for the intrusion on

the privacy of any particular individual, and did so simply

because of an asserted law enforcement need. The officers

had only a generalized suspicion that some persons travel-

ing on the highway might have been escaping from the raid

site. Even in a high crime area, the officers must have in-

formation singling out a specific individual or vehicle.

Torres v. Puerto Rico, 442 U.S. 465, 467 (1979); Brown v.

Texas, 443 U.S. 47 (1979); Almeida-Sanchez v. United

States, supra at 273 n.5. Citizens do not forfeit their

Fourth Amendment rights because, however innocently,

they happen to be in the vicinity of criminal activity in-

volving several persons.® In holding otherwise, the deci-

sions below is in conflict with the decisions of other courts

of appeals. E.g., United States v. Carrizola-Gaxiola, 523

F.2d 239, 241 (9th Cir. 1975); see also, United States v.

Montgomery, 561 F.2d 875, 886 (D.C. Cir. 1977). Even if

a law enforcement need could justify such dragnet stops in

some circumstances, the decision by individual agents in

the field, rather than by supervisory officials, without “a

plan embodying explicit, neutral limitations on the conduct

of individual officers,” Brown v. Texas, supra at 51, using

unmarked cars and wearing plain clothes, hiding and driv-

ing Out to surprise passing cars going in either direction,

without advance notice by prominent signs, does not

qualify as an appropriate method to accomplish the pur-

pose. Cf., Delaware v. Prouse, supra at 661, 663; United

States v. Martinez-Fuerte, 428 U.S. 543 (1976).

8The requirement that probable cause be particularized cannot be

undercut or avoided by simply pointing to the fact that coincidentally

there exists probable cause to search or seize another or to search the

premises where the person may happen to be.” Ybarra v. Illinois,

supra.

III.

BECAUSE THE STATEMENTS OF HARPER AND

ROWE WERE INVOLUNTARY, THE DECISION BE-

LOW UPHOLDING WITHOUT DISCUSSION THEIR

USE AT TRIAL IS IN CONFLICT WITH SEVERAL

DECISIONS OF THIS COURT.

Petitioners Harper and Rowe raised and fully briefed in

the Court of Appeals the question of the involuntariness

of their statements. The decision below rejected their

arguments without discussion, saying simply: “We ack-

nowledge the numerous issues raised by various appellants

but find no reversible error in any of them.” App. 14a.

The involuntariness of the statements of Harper and

Rowe was established by the totality of six circumstances.

Harper and Rowe: (1) were fatigued from their voyage in

rough weather; (2) were confined in a restricted area and

got little sleep; (3) were deliberately not taken before a

Magistrate although the Coast Guard had a helicopter

available to transport them to one in Puerto Rico; (4) were

promised “consideration” in connection with the charges

against them if they cooperated; (5) were threatened with

stiff sentences in Puerto Rico if they did not cooperate;

and (6) were told, when they asked about a lawyer, that if

they wanted a lawyer they could not have “the deal.” The

decision below upholding without discussion the use of

those statements is in conflict with several decisions of this

Court. E.g., Brady v. United States, 397 U.S. 742, 753

(1970); Culombe v. Connecticut, 367 U.S. 568, 602 (1961);

Haynes v. Washington, 373 U.S. 503, 505-515 (1963);

Lynum y. Illinois, 372 U.S. 528, 534 (1963); Mallory v.

United States, 354 U.S. 449 (1957); McNabb v. United

States, 318 U.S. 332 (1943); Bram v. United States, 168

U.S. 532, 542-543 (1897).

The Government argued that the admission of these

statements constituted harmless error. Brief for Govern-

ment at 75. “But any criminal trial use against a defendant

of his involuntary statement is a denial of due process

‘even though there is ample evidence aside from the con-

fession to support the conviction.’ ” Mincey v. Arizona,

437 U.S. 385, 385, 398 (1978).

IV.

THE USE IN EVIDENCE OF THE VOICE IDENTIFI-

CATION OF PETITIONER MICHAEL BENJAMIN

FORBES WHICH WAS THE FRUIT OF HIS ARREST

WITHOUT PROBABLE CAUSE RAISES AN IMPOR-

TANT QUESTION LEFT UNANSWERED THIS TERM

IN UNITED STATES V. CREWS.

Petitioner Michael Benjamin Forbes was arrested by a

deputy sheriff three or four hours after the raid. He was

on the road leading to his house, where the deputy sheriff

knew that he lived. The deputy sheriff had no information

connecting Forbes with the marijuana operation and

therefore arrested him without probable cause.

The evidence against Forbes was developed later in. the

day. Forbes was jailed with Breslin, who was then a Gov-

ernment informer. Breslin questioned Forbes and iden-

tified Forbes by his voice alone as the pilot wearing

the cold weather mask who had met the Lady Ellen and

steered her to Back Creek. He identified Forbes in court

solely on the basis of having recognized his voice in jail

and having seen his face at that time. That identification

was inadmissible as the fruit of an unconstitutional arrest.

Dunaway v. New York, 442 U.S. 200 (1979); Brown vy. II-

linois, 442 U.S. 590 (1975); Wong Sun v. United States,

371 U.S. 471 (1963).

In United States v. Crews, 100 S.Ct. 1244 (1980), this

Court reaffirmed that “the exclusionary sanction applies

to any ‘fruits’ of a constitutional violation,” id. at 1249, in-

cluding photographic and lineup identifications resulting

from an unconstitutional arrest (“both of which”, the

Court said in that case, “are conceded to be suppressible ~

fruits of the Fourth Amendment violation... .” /d. at

1250). Crews held, however, that a courtroom identifica-

tion by a witness who formed her identification of the

defendant at the time of the crime and before his arrest

was independent of the later violation of the defendant’s

Fourth Amendment rights. In the present case, however,

Breslin’s in-court identification was based solely on his

seeing Forbes in jail while hearing his voice. Accordingly,

this case raises the precise issue that the Court did not have

to reach in Crews.

THE FAILURE OF THE DISTRICT JUDGE TO MAKE

A DE NOVO DETERMINATION OF THE MAGIS-

TRATE’S RECOMMENDATIONS ON THE SUPPRES-

SION MOTIONS RAISES IMPORTANT QUESTIONS

UNDER THE FEDERAL MAGISTRATES ACT AND

THE CONSTITUTION.

The Federal Magistrates Act prohibits a Magistrate

from determining a motion to suppress evidence in a crim-

inal case but authorizes him to conduct evidentiary hear-

ings on such a motion and to submit to the Judge propos-

ed findings of fact and recommendations for disposition

by the Judge. 28 U.S.C. §636(b)(1)(B). The Act specifies:

“A judge of the Court shall make a de novo determination

of those portions of the report or specified proposed

findings or recommendations to which objection is made.”

28 U.S.C. §636(b)(1). The Act confers a limited role on the

Magistrate. He “may do no more than propose a recom-

mendation,” which does not carry even presumptive

weight. Mathews v. Weber, 423 U.S. 261, 270-271 (1976).

“The authority — and the responsibility — to make an in-

formed, final determination, we emphasize, remains with

the judge.” /d. at 271.

The Magistrate conducted an evidentiary hearing for

eleven days on the suppression motions in this case and fil-

ed his recommendations by June 22, 1978. Petitioners fil-

ed timely objections to them by June 30, 1978. The

District Judge did not hear any of the evidence presented

in connection with the suppression motions and did not

even review the transcript of the motions hearing. Never-

theless, on July 3, 1978, he issued an order denying the

motion challenging the search of the Lady Ellen at sea. On

July 5, 1978, the District Judge entered an order denying

in part and granting in part the motion challenging the

stopping of the cars driven by Talbert and Herring.

The District Judge issued no orders with regard to the

rest of the suppression motions. Thus, there is no disposi-

tion by the District Judge of those motions, as required by

28 U.S.C. section 636(b)(1)(B). Cf., Swisher v. Brady, 438

U.S. 204, 208, 209, 210, 216 (1978). Even as to the two

motions on which the District Judge did issue orders,

those orders did not comply with the Act because the

District Judge did not make a de novo determination after

petitioners filed objections to the Magistrate’s recommen-

dations.

In United States :v. Raddatz, 592 F.2d 976 (7th Cir.

1979) the Seventh Circuit held that Due Process requires

the District Judge as the trier of fact in a hearing on a mo-

tion to suppress evidence, to hear the evidence personally

“in order to ensure a meaningful determination of the

facts.” Id. at 982; see also, United States v. Bergera, 512

F.2d 391, 393-394 (9th Cir. 1975). This Court granted cer-

tiorari in Raddatz, No. 79-8, and oral argument was held

on February 25, 1980. Like Raddatz, id. at 983, the pre-

sent case was a criminal vase in an Article II] Court in

which credibility evidenc. was central to the determination

of material issues of fact. Due Process and Article III en-

titled petitioners to nave those issues determined by the

District Judge and only after personally observing and

hearing the witnesses, testify.

In this case, however, not only did the District Judge fail

to hear the evidence personally, he failed even to read the

transcript of the evidence taken before the Magistrate. The

Fourth, Fifth and Ninth Circuits have held that the “judge

must himself review the entire record before the District

Court, consider the magistrate’s report, and satisfy him-

self that the recommended disposition is fair and proper.”

Bowman v. Bordenkircher, 522 F.2d 209, 210 (4th Cir.

1975); Campbell v. District Court, 501 F.2d 196, 206 (9th

Cir. 1974); McKinney v. Parsons, 488 F.2d 452, 453 (Sth

Cir. 1974). The District Judge did not comply even with

that standard.

Vi.

THE DECISION BELOW IS IN CONFLICT WITH THE

DECISIONS OF TWO OTHER COURTS OF APPEALS

ON WHETHER THE CONSPIRACY TO IMPORT

MARIJUANA ENDED BEFORE PETITIONERS, TAL-

BERT, HERRING, BLACK, BURDINE, JACKSON,

WHITE, JENKINS AND FORBES JOINED IT.

The indictment charged petitioners with a conspiracy

only to import marijuana. That conspiracy ended on Jan-

uary 26, 1978, with the seizure of the Lady Ellen at sea and

the arrest of her crew. The cooperation of the crew in the

controlled delivery was “not in any sense a furtherance of

the criminal enterprise. It is rather a frustration of it.”

Fiswick v. United States, 329 U.S. 211, 217 (1946).

The decision below is in conflict with the Fiswick princi-

ple and in direct conflict with a First Circuit decision that

applied the Fiswick principle in circumstances analogous

to those present here. United States v. Izzi, 613 F.2d 1205

(Ist Cir. 1980). In that case, the evidence established a cons-

piracy to import heroin among’five persons. One of them

agreed after he was arrested to work undercover for the

DEA. In that role he arranged a $19,000 purchase of

heroin by the original conspirators from one Izzi, who also

agreed to make further sales to the conspiracy. The First

Circuit reversed Izzi’s conviction, holding that the conspi-

racy had terminated before Izzi got involved. /d. at 1209.

The Court explained that the transaction with Izzi was not

a continuance of the conspiracy to import heroin, but

rather a government plan to obtain evidence in which the

prime mover was not a conspirator but the DEA acting

through the undercover agent. /d.

An additional conflict arises if the conspiracy to import

marijuana did not end at sea, because it certainly ended

when “Breslin, Harper and Rowe imported marijuana into

the United States through the Beaufort Channel at ap-

proximately 9:00 on February 4, 1978.” That is when the

importation was complete.’ A conspiracy ends with the

success, failure or abandonment of its objective. '°

*Cunard S.S. Co. v. Mellon, 262 U.S. 100, 122 (1923); United

States v. Morello, 125 F.2d 631, 635 (2d Cir. 1957); Palmero v. United

States, 112 F.2d 922, 924-925 (Ist Cir. 1940); Alksne v. United States,

39 F.2d 62, 68 (Ist Cir. 1930); United States v. Lee Foo Yung, 46

F.Supp. 147 (E.D. N.Y. 1942).

'OUnited States v. Kissel, 217 U.S. 601, 608 (1910); Brown v. United

States, 150 U.S. 93, 98 (1893); Logan v. United States, 144 U.S. 263,

309 (1892); see also, Anderson v. United States, 417 U.S. 215, 218

In United States v. Alfrey, 612 F.2d 180, 186 (Sth Cir.

1980), the Fifth Circuit held that a person who boarded a

vessel that had already entered the United States carrying

marijuana could not be convicted of conspiracy to import

the marijuana because the crime of importation of mari-

juana had already been committed. The decision below is

in conflict with Al/frey because it upheld the convictions of

these petitioners although no evidence showed any involv-

ed by them in the conspiracy until after the importation

was completed. Petitioner Forbes boarded the vessel ten

days after it had been seized at sea and shortly after it

completed the importation. Petitioners Black and Burdine

did not board the vessel until the early morning after the

importation was completed. Petitioners Talbert, Herring,

Jackson, White and Jenkins were not implicated until even

later that morning.

VIL.

THE DECISION BELOW IS IN CONFLICT WITH THE

DECISIONS OF OTHER COURTS OF APPEALS ON

THE IMPORTANT QUESTION OF THE REQUISITE

PROOF OF PARTICIPATION IN A CONSPIRACY.

It is axiomatic that “mere association with other persons

involved in a criminal enterprise is insufficient to prove

participation in a conspiracy.” United States v. Gutierrez,

559 F.2d 1278, 1280 (Sth Cir. 1977). “Mere association and

activity with a conspirator does not meet the test... .

(1974); Grunewald v. United States, 353 U.S. 391, 397-402 (1957);

Lutwak v, United States, 344 U.S. 604, 616-617 (1953); Krulewitch v.

United States, 336 U.S. 440, 442-444 (1949); Fiswick v. United States,

supra at 216-217; A.L.I. Model Penal Code §5.03(7)(a) (Official Draft

1962). Evidence of a defendant’s membership in a conspiracy to

possess or distribute contraband does not show guilt of a conspiracy

to import the contraband. Cf., United States v. Cadena, 585 F.2d

1252, 1256 (Sth Cir. 1978); United States v. Rodriguez, 585 F.2d 1234,

1247 (Sth Cir. 1978); see also, Bollenbach v. United States, 326 U.S.

607, 611 (1946).

Mere knowledge of the existence of a conspiracy is not

sufficient to sustain a conviction.” United States v. Basur-

to, 497 F.2d 781, 793 (9th Cir. 1974). The Government

must prove both knowledge of the illegal purpose of the

conspiracy charged and acts that are undertaken to further

that purpose. United States v. Falcone, 311 U.S. 205,

210-211 (1940). Yet the most that the evidence showed

against these petitioners was their presence an associa-

tion with other persons in the vicinity of the importation.

“Proximity to the crime or even actual presence at the

scene of the crime is not sufficient.” United States v.

Rodriguez, 585 F.2d 1234, 1245 (Sth Cir. 1978); see also,

United States v. Romano, 383 U.S. 136, 141 (1965); cf,

County Court of Ulster Cty. v. Allen, 442 U.S. 140,

158-159 n. 16 (1979). “[A] person’s mere propinquity to

others; independently suspected of criminal activity does

not, without more, give rise” even to probable cause..

Ybarra v. Illinois, 100 S.Ct. 338, 342 (1979).

There is less evidence against these petitioners than

against the defendants in several cases where federal

courts have found the evidence insufficient to connect

them with an alleged conspiracy.'' In United States v.

Gutierrez, 559 F.2d 1278 (Sth Cir. 1977), Government of-

ficers watched a person who sold heroin to an undercover

agent on three occasions meet with his uncle at the uncle’s

house on all three occasions before consummating the

transaction by turning over the heroin. In addition, the of-

ficers found in the uncle’s house $400 in marked bills that

the undercover agents paid the nephew for heroin. The

''See, e.g., United States v. Burgos, 579 F.2d 747, 749 (2d Cir.

1978); United States v. Dyar, 574 F.2d 1385, 1388-1389 (Sth Cir.

1978); United States v. Littrell, 574 F.2d 828, 833-835 (Sth Cir.

1978);United States v. Caro, 569 F.2d 411, 417-419 (Sth Cir. 1978);

United States v. Stroupe, 538 F.2d 1063, 1065-1066 (4th Cir. 1976);

United States v. Baker, 499 F.2d 845, 847-849 (7th Cir. 1974).

Court held the evidence insufficient against the uncle. /d.

at 1281.

In United States v. Duckett, 550 F.2d 1027 (Sth Cir.

1977), three persons flew from the Bahamas to Miami with

a red suitcase carrying heroin. Duckett was at the Baha-

mas airport at the same time as they; he asked them for a

key; he had earlier been in the house of one of them when

heroin was present; and he used the same alias as another

of them. The Court held:

“The joint presence of the defendant and the

conspirators at the airport and the pre-existing

relationship between the parties is insufficient

alone to prove beyond a reasonable doubt that

defendant had a part in the conspiracy. . . . Thus

the fact that Duckett approached Gray and Gas-

ton for a key and that Gaston possessed papers

with both Duckett’s true name and alias do not

provide a legitimate basis for inferring his par-

ticipation in a conspiracy to import heroin.” /d.

at 1030.

In United States v. Valenzuela, 596 F.2d 824 (9th Cir.

1979), the defendant was arrested in her own home —

shared with her husband — where the officers also found

heroin: When the officers came to the door to execute a

warrant she attempted to push the door shut. The Court

reversed her convictions for possession with intent to

distribute and conspiracy. /d. at 830-831.

In Ramirez v. United States, 363 F.2d 33 (9th Cir.

1966), the defendant was present and knew what was go-

ing on when X bought marijuana in Mexico. Y also

bought marijuana in Mexico but defendant was not pre-

sent at that time. X and Y put their marijuana in Y’s car

and Y drove it across the border. The defendant and X

walked across the border. The defendant never touched

the marijuana. The Court held the evidence insufficient to

convict the defendant of aiding and abetting. /d. at 35; see

also, United States v. Peterson, 416 F.2d 1216, 1220-1221

(9th Cir. 1969).

The decision below is in conflict with those decisions of

the Fifth and Ninth Circuits. The principal evidence

against Jackson, White and Jenkins was their presence in

the house on Back Creek at 5:00 A.M., wearing heavy

work clothes and long rubber boots. Jackson lived in the

house; his presence in his own house can hardly evidence

his involvement in criminal activity occurring in the vici-

nity. The presence cf White and Jenkins as guests of

Jackson is no more incriminating. The fact that the three

were dressed for outdoor work at 5:00 A.M. is not a

suspicious circumstance in a fishing community.

The house contained a CB transceiver and a scanning

radio receiver. The evidence showed, however, that it was

common for people in that area to have such equipment.

The conduct of Jackson, White and Jenkins was consis-

tent with innocence. They had left the door unlocked, and

invited the agents into the house when the agents requested

permission to enter. Although the agents had been on the

grounds for an hour before they came to the house, peti-

tioners made no effort to flee or hide anything. They were

cooperative with the agents, answering their questions and

producing identification for them.

Talbert and Herring were stopped in automobiles pro-

ceeding in opposite directions on the highway about a mile

from the dirt road leading to the raid site three hours after

the raid. Both were driving vehicles rented in a fictitious

name from the same agency, and White was arrested in the

house at Back Creek carrying identification using that fic-

titious name. That evidence may establish an association

among these persons, but that association does not show

the guilty involvement of any of them in the importation

scheme. See United States v. Duckett, supra at 1030.'?

In arguing the sufficiency of the evidence the Govern-

ment relied on the Fifth Circuit’s former “slight evidence”

rule. Brief for the Government in the Court of Appeals at

83. That rule originated in Tomplain v. United States, 42

F.2d 202 (Sth Cir.), cert. den., 282 U.S. 886 (1930), but

was rarely used until recently. Comment, 64 Va. L.Rev.

881, 881 (1978). The Fifth Circuit overrruled it in United

States v. Malatesta, 590 F.2d 1379 (Sth Cir. 1979) (en

banc): “The ‘slight evidence’ rule as used and applied on

appeal in conspiracy cases should not have been allowed to

worm its way into the jurisprudence of the Fifth Circuit. It

is accordingly banished... .” /d. at 1382. The Fifth Cir-

cuit then held that “the correct standard of review is

substantial evidence, it being understood, of course, that

the evidence is to be viewed in the light most favorable to

the government.” /d. This Court has since reaffirmed that

'2The only other evidence relied on by the Government to build a

case against Talbert or Herring was the notebook found in the house

at Back Creek. The inadmissibility of this notebook is one of the con-

ditional questions presented in this case. The notebook was not, in any

event, probative against Talbert or Herring.

The name Talbert is not in the notebook. Talbert’s first name,

Gary, is not in the notebook either. His middle name, “Regan”, is

close in spelling to “Reagan”, a name that enjoyed five scattered and

innocuous references among the many pages and many names in the

notebook. The Government made no effort to show that they related

to the smuggling conspiracy, and presented no evidence regarding the

identity of the person who wrote the name “Reagan”, let alone that he

knew Talbert or intended the name “Reagan” to refer to him.

There are several references to “Neil”, also in innocent or am-

biguous contexts, in the notebook. One conspirator was, of course,

Neil Rowe. Herring’s first name is Robert, not Neil. His middle name

is McNeill, but there was no evidence that he was ever called by his

middle name, let alone by the short form “Neil”.

. 35

“the critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction must be. . .

whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 318 (1979); see also, Glasser v.

United States, 315 U.S. 60, 80 (1942); see generally,

United States v. Alvarez, F.2d ; (Sth Cir.

1980), 26 Cr.L.Rptr. 2465.

VIII.

THE DECISION BELOW RAISES IMPORTANT

QUESTIONS UNDER THE JURY SELECTION AND

SERVICE ACT OF 1968, 28 U.S.C. SECTIONS

1861-1871, REGARDING:

(A) WHETHER A LIST OF ACTUAL VOTERS MAY

BE USED AS THE SOLE SOURCE OF NAMES

FOR FEDERAL JURY SELECTION WHEN

THAT PRACTICE RESULTS IN JURIES IN

WHICH COGNIZABLE GROUPS ARE UNDER-

REPRESENTED, AND

(B) WHAT STATISTICAL SHOWING CONSTI-

TUTES A PRIMA FACIE CASE THAT FEDERAL

JURY SELECTION PRACTICES RESULT IN

JURIES IN WHICH COGNIZABLE GROUPS

ARE UNDER-REPRESENTED.

The jury plan for the Eastern District of North Carolina

provides that grand and petit juries shall be chosen only

from lists of actual voters in the most recent presidential

election. Those lists contain the names of only 38% of the

population eligible for jury service because only that

percentage voted in the 1976 election. As the Table in Ap-

pendix L shows, the District Court’s reliance on that ex-

clusive list resulted in the under-representation of black

and low socio-economic status citizens on the grand and

petit juries in the District. The plan contains no provision

for access to “some other source or sources in addition to

voter lists where necessary to foster the policy and protect

the rights secured by sections 1861 and 1862,” which

declare the right to juries selected at random from a fair

cross section of the community and the right not to be ex-

cluded from jury service on account of race or economic

status. 28 U.S.C. §1863(b)(2). See United States v. Grant,

475 F.2d 581, 581i (4th Cir. 1973) (Winter, J., dissenting

from denial of rehearing). Accordingly, before trial peti-

tioners challenged the composition of those juries on con-

stitutional and statutory grounds and offered to prove the

statistics shown in Appendix L. The District Court refused

the offer of proof and denied the challenge.'* Later, in

United States v. Coats, 611 F.2d 37 (4th Cir. 1979), cert.

den. April 21, 1980, No. 79-1230, the District Court allow-

ed into evidence essentially the same data and denied a

similar challenge. On appeal, the Fourth Circuit upheld

that ruling, and in the present case the Fourth Circuit

upheld the denial of the jury challenge on the basis of its

decision in Coats. App. 14a n. 4.

The Fourth Circuit and the District Court have known

at least since 1973 when United States v. Grant, supra, was

decided that its exclusive use of lists of actual voters

resulted in under-representation of blacks on juries. Yet

they have taken no action to “prescribe other sources to

supplement the voter lists,” S. Rep. 891, 90th Cong., Ist

Sess. 27 (1967), including what the Senate Report called

“the preferred source, the registration lists”. /d.

'3After the District Court denied the challenge, Petitioners waiv-

ed jury trial. The District Court, however, expressly permitted Peti-

tioner Herring to perserve his challenge to the composition of the

petit as well as the grand juries in the District, and Herring waived

jury trial in reliance on that procedure.

In its decisions in this and the Coats cases, the Fourth

Circuit appeared to accept the proposition that supple-

mentation of names by use of alternative lists would be re-

quired upon a “showing that voter lists do not represent a

fair cross-section of the community.” United States v.

Coats, supra at 41, App. 16a. The Court did not discuss

why it believed “that showing has not been made here,”

id., App. 17a, and instead cited two cases that held that

“ ‘neither the Act nor the Constitution require that a sup-

plemental source of names be added to voter lists simply

because an identifiable group votes in a proportion lower

than the rest of the population’ ” United States v. Test,

550 F.2d 577, 586 n.8 (10th Cir. 1976) (en banc), cert.

den., 439 U.S. 1074 (1977); United States v. Ross, 468

F.2d 1213, 1216 (9th Cir. 1972), cert. den., 410 U.S. 989

(1973).

Although the Fourth Circuit suggested that a demon-

stration of under-representation as well as systematic

exclusion of a cognizable group would establish a vio-

lation of the statute, that reasoning suggests that it was

requiring proof of intent to discriminate. Although dis-

criminatory intent might be an appropriate standard

in an Equal Protection analysis, cf., Washington v.

Davis, 426 U.S. 229, 239 (1976), and a standard of

systematic exclusion might be appropriate in a Sixth

Amendment analysis, Duren v. Missouri, 439 U.S. 357,

366 (1979); Taylor v. Louisiana, 419 U.S. 522, 531 (1975),

they have no place in consideration of whether the

remedial statute has been violated. Cf., City of Rome v.

United States, 48 U.S. Law Week 4463, 4468-4469 (1980);

Washington v. Davis, supra at 238. Although voter lists

are One convenient source for jury selection procedures,

the end sought is not the use of voter lists but juries com-

posed of a fair cross-section of the community. Broadway

v. Culpepper, 439 F.2d 1253, 1257 (Sth Cir. 1971).

“(E)xcluding identifiable segments playing major roles in

the community cannot be squared with the constitutional

concept of jury trial”, Taylor v. Louisiana, supra at 530, if

such exclusion results from the failure of such groups to

vote in the same proportions as other groups any more

than if it results from their failure to volunteer for jury

service. Jd. The command of the statute for supplementa-

tion from other lists has been ignored by the District

Court. That default presents an important issue regarding

federal judicial administration that needs to be decided by

this Court.'*

The statute prohibits jury exclusion on the basis of race

or economic status. 28 U.S.C. §1863(b)(2); see also, Thiel

v. Southern Pacific Co., 328 U.S. 217, 223 (1946) (daily

wage earners). The District Court jury selection system,

however, resulted in under-representation of blacks, of

persons in blue collar and service occupations and of per-

sons with no college education. The table in Appendix

L, using categories reported by the Bureau of the Cen-

sus, shows that on a computation of “absolute disparity”

blacks are under-represented on the grand jury by 10.2%

and the petit jury by 11.7%, that blue-collar and service

workers are under-represented on the two juries by 23.1%

and 26.5% respectively, and that persons with no college

are under-represented by 32.3% and 30.8% respectively.

community as to require supplementation. Indeed, only 64% of the

cligible population was even registered to vote in the District. Use

of the registration lists would thus be an improvement over use of

the voter lists, and the fact that they might not be a complete solu-

tion does not justify holding that the District Court need not strive

to empanel more broadly representative juries, as the Fourth Circuit

contended. United States v. Coats, supra, App. at 16a.

‘Using the computation of “comparative disparity”'*> the

under-representation is even more stark: blacks on the

grand jury by 33.8% and on the petit jury by 42.1%; blue-

collar and service workers on the grand jury by 45.2% and

on the petit jury by 52.4%; and persons with no college on

the grand jury by 32.3% and on the petit jury by 30.8%.

In Swain v. Alabama, 380 U.S. 202 (1965), this Court

held: “We cannot say that purposeful discrimination based

on race alone is satisfactorily proved by showing that an

identifiable group in a community is under-represented by

as much as 10%.” Jd. at 208-209. Under the statute,

however, purposeful discrimination need not be shown

and this case presents an opportunity for the Court to

determine the measures and standards for proof of a

prima facie case of deviation from the cross-section ideal

mandated by Congress. The Table in Appendix M shows

some of the varying standards that the federal courts are

employing, and illustrates the need for review by this

Court.

Even if the absolute disparity measure is used, however,

this case presents important questions about the tolerable

standards of deviation in representativeness. The decision

below upheld without discussion a deviation of 10.2%

(grand jury) and 11.7% (petit jury) in a racial category.

Such disparity is inconsistent with the statutory objective

even if it is within or close to the constitutional limits.

That racial deviation in this case is aggravated by the con-

current under-representation of socio-economic groups

defined in terms of occupational categories and degree of

'SFor an explanation of the “comparative disparity” measure and

why it is more meaningful than “absolute disparity,” see the Petition

for Certiorari in Masenky v. United States, No. 79-1433, at 11-18.

That petition also discusses as a third possible measure the

“statistical significance” test.

education, by percentages in the range of 23.1% to 27.1%.

The corollary of those figures is that professionals and

managers are Over-represented on the grand jury by

125.9% and on the petit jury by 180.9%, and that people

with some college education are over-represented by over

160%. See Appendix L.

These statistics are certainly sufficient to shift the

burden to the Government to show that it has a legitimate

interest that is “manifestly and primarily advanced by

those aspects of the jury-selection process . . . that result in

the disproportionate exclusion of a distinctive group.”

Duren v. Missouri, supra at 367-368. If it cannot do so,

there is no reason to tolerate such substantial deviations in

the face of a statute commanding a high standard of repre-

sentativeness and recommending supplementation of voter

lists with other lists containing names of a broader spec-

trum of the community. The cure will not impose a hard-

ship on the courts. Congress expressed a preference for

voter registration lists. If needed, convenient supplemental

sources are available. For example, the Law Enforcement

Assistance Administration, finding that voter lists have a

built-in-bias toward “white affluent white-collar citizens”

and against the young, the black, the less educated, and

the lower paid, is supporting projects to use lists of per-

sons with drivers licenses. G. Munsterman, et al., Mu/tiple

Lists for Juror Selection, App. C, pages 2-3 (L.E.A.A.

1978).

The need for review by this Court is particularly acute

because District Court jury selection plans are approved

by the circuit judicial council in a non-adversary pro-

ceeding. 28 U.S.C. §1863(a). The judges who approved

them in thai context may not be able to appreciate their

flaws, as this Court held was true of “state judges perhaps

too close to the day-to-day operation of their system to be

able properly to evaluate claims that the system is defec-

tive.” Rose v. Mitchell, 443 U.S. 545, 562 (1979).

CONCLUSION

For the foregoing reasons, petitioners respectfully re-

quest that the Court issue a writ of certiorari to review the

judgment of the Fourth Circuit.

James K. Jenkins

1000 Candler Building

Atlanta, Georgia 30303

Altorney for Petitioners

Donald Winston Harper

and Neil Wilson Rowe

Bruce H. Morris

3565 Piedmont Road

Atlanta, Georgia 30305

Attorney for Petitioners

John White and

James Merrill Burdine

Reber Boult

BARRY NAKELL

1310 LeClair Street

Chapel Hill, North Carolina 27514

Counsel for Petitioners

EUGENE GRESSMAN

325 Glendale Drive

Chapel Hill, North Carolina 27514

Of Counsel for Petitioners

Norman B. Kellum

David P. Voerman

P.O. Box 866

New Bern, North Carolina 28650

Attorneys for Petitioner

Michael Benjamin Forbes

Steven A. Bernholz

Suite 20, Franklin Bldg.

137 East Franklin Street

Chapel Hill, North Carolina 27514

Altorney for Petitioners

Donald Alfred Black

and Gary Regan Talbert

Suite 1500 The Healy Bldg. Edwin Marger

57 Forsyth Street, N.W.

Atlanta, Georgia 30303

Attorney for Petitioner

Robert McNeill Herring

John W. Stokes

4283 Memorial Drive

Suite J

Decatur, Georgia 30032

Attorney for Petitioner

David Ray Jenkins

Suite 320

6666 Powers Ferry Road

Atlanta, Georgia 30339

Attorney for Petitioner

David Raymond Govus

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.