Opposition — Barry v. United States

FILED

OCF 31 1980

| Supreme Court, U. a

{

No. 80-25

be

MICHAEL RO |

In the Supreme Court of the Hnited States CuK

ee

OCTOBER IERM, 1980

LEROY W. BARRY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PELITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN Ff, DEPUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-25

LEROY W. BARRY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

QUESTIONS PRESENTED

1. Whether petitioner’s Fourth Amendment rights were

violated by the initial stop of his van, by his warrantless

arrest, or by the ensuing warrantless search of the van.

2. Whether the evidence was sufficient to sustain

petitioner’s conviction for receipt and possession of

contraband cigarettes.

I}

TABLE OF CONTENTS

Page

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PIE Nek ccancnsdissseisistitncstincciamemciekeeaann l

IIIT ~caciiunecdussinasardvevecenyesincnviennadenesasnioeegionaaenes ]

TREE ievadarssibieauasiienuniieninineeman 4

MINE = \ciatndnsecasinveikniapecasemninnamenabiinds 11

TABLE OF AUTHORITIES

Cases:

AaGams V. Wiams, 4O7 UB. 143 scccccceccecsesescscss 4

Allen v. United States, 390 F. 2d 476. ..........0000 6

Allen v. United States, 404 F. 2d 1335 ...........008. 6

Sn Di Pes SP Rlcte OF Ridecathicencaviccecccivectons 4

Carroll v. United States, 267 U.S. 132 wc... 7-8

Chambers v. Maroney, 399 U.S. 42 ciccccccccccccseeees 7

Colorado v. Bannister, No. 79-1901

A EL WEIN Sans cdesxnaspuisuavasaeuccanbancoceivassadaunns 7

Colt v. United States, 158 F. 2d 641 ............... 10

Delaware v. Prouse, 440 U.S. 648 c.c.ccccccssessseesees 4

Dunaway v. New York, 442 U.S. 200 ............0000 6

Miranda v. Arizona, 384 U.S. 436 circecccccceccsecesceee 6

Mullaney v. Wilbur, 421 U.S. 684 wc. eeeeeeee 10

Oregon v. Mathiason, 429 U.S. 492 w.cccccececceeees 6

Rhode Island v. Innis, No. 78-1076

A NG 21 cedot A Os ok adapta pungadenxendaan 7

lil

Page

Cases—Continued

7 Fifths Old Grand-Dad Whiskey v.

United States, 158 F. 2d 34, cert. denied,

Sa cabins 8

ne a I il aa seactecedenexenes 4

United States v. Bills, 555 F. 2d 1250 ............000. 4

United States v. Brignoni- Ponce, 422 U.S.

a i a chance 4

United States v. Calderon, 348 U.S. 160 .......... 10

United States v. Chadwick, 433 U.S. 1 wu... 7

United States v. Chodor, 479 F. 2d 661,

ORE, GI, OE Ws PER ai ravicccecdckvckcdevccesesencs 8

United States v. Collom, 614 F. 2d 624 ............. 6

Unites States v. Hall, 557 F. 2d 1114,

Me Me WE NE wiinan och cccnveceeiconcoxccocss 7

United States v. Harris, 611 F. 2d 170 ................ 6

United States v. Mendenhall, No. 78-1821

I a ae aa sesamin 4

United States v. Moore, 613 F. 2d 1929,

cert. denied, No. 79-6031 (May 19, 1980) ....... 8

United States v. Ramzy, 446 F. 2d 1184,

OE I, IO BB, Fe Sci ckcicesscsadcesccsdscscceccs 8

United States v. Story, 463 F.‘2d 326,

es Si, FR se, WE caiccrdasccecdbccecdenscevesvess 7

United States v. Vasquez, 612 F. 2d 1338 .......... 6

United States v. Vuitch, 402 U.S. 62. cicccccccccccceses 8

lV

Page

Cases—Continued

United States v. Walters, 73 k. Supp. 72,

case certified to the Supreme Court,

175 F. 2d 340, appeal dismissed,

TID WB. DOD scviscciiccssdnosensncdsiacceishacsaenea 10

United States v. White, 611 F. 2d 531) wc... 10

Statutes and regulations:

BS U.S.C, (ame. B00) IOI 2) csccseoseccesseeeaenne 8

5S U.S.C, (Sepp. B12) ZIAMO)- ccccicsccccessesesoncntes 1, 8

D.C, Code Ann. § 22-3204 (1973) ciccccceeeees hb F

D.C. Code Ann. § 47-2802 (1973 &

WD. EY AGTFE sxisccsieusicisesiamaeee 9

District of Columbia Regulations on

Cigarette Taxes, Title 16,

went DAG oicisccisccscisreseeeee a

OPINION BELOW

[he judgment order of the court of appeals (Pet. App.

2a) is not ys reported.

JURISDICTION

[he judgment of the court of appeals was entered on

May |, 1980. A petition for rehearing was denied on June

5, 1980 (Pet. App. 3a). The petition for a writ of certiorari

was filed on July 7, 1980. The jurisdiction of this Court is

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

STATEMENT

Following a jury trial in the United States District

Court for the District of Columbia, petitioner was

convicted on one count of receipt and possession of

contraband cigarettes, in violation of 18 U.S.C. (Supp.

11) 2342(a), and on one count of carrying a pistol without

a license, in violation of D.C. Code Ann. § 22-3204

(1973). He was sentenced to imprisonment for one year

and one day on the contraband cigarette count and to a.

concurrent six-month term on the firearm count. The

court of appeals affirmed (Pet. App. 2a).

1. On petitioner’s pretrial motion to suppress the

cigarettes and pistol, the following facts were stipulated

(J.A. 21-34).! In 1978, the metropolitan police began an

investigation of the G.W. Cochran Company, a wholesale

cigarette dealer located in the District of Columbia,

because the company was known to have evaded pay-

ment of District of Columbia cigarette taxes by selling

Cigarettes to wholesalers and retailers from _ other

jurisdictions without collecting the required tax. On

September 8, 1978, a local detective observed petitioner

receive a load of cigarettes trom the Cochran warehouse

“J.A.” refers to the joint appendix in the court of appeals.

l

2

in the District of Columbia and transport them in a van

to Virginia. The detective subsequently learned that

petitioner had a record of arrests and convictions for

untaxed-cigarette offenses.

On October 2, 1978, the detective again observed

petitioner receive and transport cigarettes from the

Cochran warehouse to Virginia, where the cigarettes were

transferred to a van bearing Pennsylvania license plates.

The latter vehicle was followed into Pennsylvania, where

the driver was arrested for violation of the Pennsylvania

Cigarette tax laws. The cigarettes bore Virginia, but not

District of Columbia, tax stamps.

On November 7, 8, and 30, 1978, and on February 23,

March 30, and April 3, 1979, the detective observed

petitioner receive large quantities of cigarettes from

Cochran, and, following the November and February

pickups, he observed petitioner transport the cigarettes

into Virginia. The detective subsequently learned that

petitioner did not have a Virginia tobacco merchant

license, nor was he registered with the District of

Columbia as a Virginia tobacco merchant so as to exempt

him from payment of District of Columbia sales tax on

the cigarettes he purchased from Cochran.

On April 5, 1979, the detective and other local and

federal officers observed Cochran employees load

approximately 181 half-cases of cigarettes (1,086,000

cigarettes) into petitioner’s van. After the loading was

completed, petitioner and a companion entered the van

and drove away.

*Petitioner was arrested for transporting cigarettes from North

Carolina into Virginia without paying Virginia sales tax on August

15, 1978. On March 6, 1974, petitioner was convicted in New Jersey

tor possessing untaxed cigarettes, and he was convicted for the same

offense in New York on September 24, 1975.

3

[he officers, traveling in four cars including a marked

scout car, surrounded petitioner’s vehicle and pulled it to

the curb. By the time the officers got out of their cars,

petitioner and his passenger had exited the van, leaving

the doors open. When the detective asked to see his

driver’s license, petitioner volunteered that he was a

businessman on his way to Virginia with a load of

cigarettes. In response to the detective’s question where

was he taking them, petitioner said that he was taking

them to his warehouse and that he would “sell to anyone

who would buy them.” Petitioner then re-entered the van,

reached into a gym bag that was between the bucket seats,

and produced an expired Virginia sales tax certificate, a

District of Columbia sales and use tax Certificate of

Registration (which does not apply to the purchase of

cigarettes), an expired 1978 Virginia retail tobacco license,

and an application for a 1979 Virginia license that had not

been filed, all of which he handed to the detective. When

the detective repeated his request for a driver’s license,

petitioner again returned to the van and reached into the

gym bag, which permitted another officer to observe a

gun in the bag.

At that point, petitioner was placed under arrest and

advised of his Miranda rights. The officers then searched

the van and found the 181 half-cases of cigarettes. A

check of one pack of the cigarettes in the van showed that

there was no District of Columbia tax stamp affixed

thereto.

2. At trial, the foregoing evidence concerning the stop

of petitioner’s vehicle and seizure from him of the pistol

and cigarettes was admitted. In addition, the government

presented a District of Columbia tax official, who testified

(Ir. 275-276) that District of Columbia law imposes a tax

on all cigarettes sold in the District, except that the

4

District’s tax regulations permit wholesalers to sell

Cigarettes bearing the tax stamps of another jurisdiction

to retailers who hold retailer’s licenses in the other

jurisdiction and who intend to sell the cigarettes there.

At the conclusion of the government’s case, petitioner

moved for a judgment of acquittal on the ground, inter

alia, that the government had not proved that he did not

have a valid Virginia cigarette retail sales license at the

time of his arrest in April 1979, which motion was denied

(Ir. 289-290). Thereafter, a Virginia county license clerk,

who was called as a defense witness, testified (Tr. 294)

that petitioner’s Virginia tobacco retail license expired on

December 31, 1978, and that it had not been renewed.

ARGUMENT

1. Petitioner contends (Pet. 11-20) that the officers’

stop and ensuing search of his van violated his Fourth

Amendment rights. The trial judge and the court of

appeals properly rejected this contention.

This Court has established that police officers may

briefly stop a vehicle or detain a person for investigative

purposes if they can point to specific facts that are

reasonably indicative of possible criminal activity. United

States v. Mendenhall, No. 78-1821 (May 27, 1980)

(opinion of Powell, J.); Brown v. Texas, 443 U.S. 47, 51

(1979); Delaware v. Prouse, 440 U.S. 648, 655-657 (1979);

United States v. Brignoni-Ponce, 422 U.S. 873, 881

(1975); Adams v. Williams, 407 U.S. 143, 145-146 (1972);

Terry v. Ohio, 392 U.S. 1, 30 (1968). As the Court

explained in Adams v. Williams, supra, 407 U.S. at 146,

[a] brief stop of a suspicious individual, in order to

determine his identity or to maintain the status quo

momentarily while obtaining more information, may

be most reasonable in light of the facts known to the

officer at the time.

5

Here, as petitioner himself concedes (Pet. 17-18), an

abundance of facts justified a reasonable suspicion, if not

probable cause to believe, that petitioner and_ his

companion were transporting contraband cigarettes. As

the result of extended surveillance and investigation, the

officers knew that on eight occasions during the preceding

seven months petitioner had obtained large quantities of

cigarettes from Cochran—a business known to have

evaded payment of District of Columbia cigarette taxes

by selling cigarettes to out-of-town wholesalers and

retailers—and had transported them to Virginia. They

knew that petitioner had a record of convictions for

offenses involving untaxed cigarettes and that the District

of Columbia sales tax had not been paid on the cigarettes

he purchased and transferred to a Pennsylvania contact

the preceding October. They also knew that petitioner did

not have a Virginia tobacco merchant’s license and was

not registered as a Virginia tobacco merchant so as to

exempt him from payment of the District of Columbia

tax. Finally, shortly before the stop, they observed

petitioner obtain a large quantity of cigarettes from

Cochran and begin his customary route toward Virginia.

In these circumstances, which strongly suggested that on

this occasion as well petitioner was transporting cigarettes

on which the District of Columbia tax had not been paid,

the police were amply justified in stopping the van to

verify the identities of its occupants and to make inquiries

concerning the nature of the merchandise contained

therein. Indeed, on the facts outlined above, we believe

that probable cause existed at the time petitioner’s vehicle

was stopped.?

‘Petitioner’s claim (Pet. 11-12) that 7erry v. Ohio, supra, extends

only to stops for the purpose of “patting-down” a suspect for

weapons is without merit, in light of the Court’s subsequent

application of the Jerry rationale to cases in which there was neither

any indication of a suspicion that the suspect was armed nor any

mention of a “pat-down” having been conducted in connection with

the stop. See, e.g., United States v. Mendenhall, supra; United States

v. Brignoni-Ponce, supra. |In United States v. Vasquez, 612 F. 2d

1338 (2d Cir. 1979), the majority of the court expressly rejected the

identical contention, which was suggested (612 F. 2d at 1351 n.5) by

the dissent, holding (612 F. 2d at 1345) that the strong implication of

Terry and its progeny is that “entitlement to make the stop depends

on a reasonable belief that the suspect is engaging in criminal activity,

regardless of whether he is also armed and dangerous.”

Dunaway v. New York, 442 U.S. 200 (1979), does not support

petitioner’s claim. In that case, the Court simply held (442 U.S. at

212-213) that the rationale of Jerry v. Ohio could not justify an

extended police station detention for the purpose of interrogation

that was tantamount to an arrest. Indeed, the Court recognized (ibid.)

that under Jerry v. Ohio and its progeny, a brief investigative stop is

permissible. Here, in contrast to the situation that obtained in

Dunaway, petitioner was detained only briefly before his voluntary

actions precipitated his arrest. He was not removed from the scene of

the stop for questioning, and the only thing the police requested

before petitioner began volunteering information was to see his

driver’s license.

Petitioner’s further suggestion (Pet. 15) that Miranda warnings

should have preceded the detective’s questioning of him is similarly

without foundation. “Miranda warnings are required only where

there has been such a restriction on a person’s freedom as to render

him ‘in custody.’ ” Oregon v. Mathiason, 429 U.S. 492, 495 (1977);

see Miranda vy. Arizona, 384 U.S. 436, 444 (1966). They are not

required to be given in preliminary investigative questioning under

the circumstances presented here. See, e.g., United States v. Collom,

614 F. 2d 624, 628 (9th Cir. 1979); United States v. Harris, 611 F. 2d

170, 173 (6th Cir. 1979). Indeed, in Allen v. United States, 390 F. 2d

476, 479 (D.C. Cir. 1968), the court of appeals held that suppression

of a confession that followed, inter alia, a request for a driver’s permit

and automobile registration was not required, and opined to the

contrary in Allen v. United States, 404 F. 2d 1335, 1336 (D.C. Cir.

1968), relied on by petitioner, only after it was revealed that the

challenged confession had not been made until ten minutes after the

defendant had been placed under arrest. Here, when the detective

asked petitioner about the destination of the cigarettes, petitioner was

not in custody; he had been stopped only momentarily for the

apparent purpose of examining his driver's license. [he remaining

7

As the district court found (Pet. App. 6a), the

additional events that occurred after the initial stop

provided probable cause for both petitioner’s arrest and

the ensuing warrantless search of the van. See, e.g.,

United States v. Hall, 557 F. 2d 1114, 1117 (Sth Cir.),

cert. denied, 434 U.S. 907 (1977). Thus, instead of

showing the detective his driver’s license, as requested,

petitioner volunteered that he was on his way to Virginia

with a load of cigarettes and displayed invalid or

worthless documents in an apparent attempt to convince

the officers that he was exempt from District of Columbia

Cigarette sales tax. These unsolicited actions confirmed

the suspicion that petitioner was transporting untaxed

cigarettes. The impression that criminal activity was afoot

was enhanced by the presence of a handgun in petitioner’s

gym bag.‘

The warrantless search of the van that followed

petitioner’s arrest was also proper. It is well settled that,

because of the mobile character of a motor vehicle, as well

as an occupant’s diminished expectation of privacy in its

contents, the police may conduct a warrantless search of a

vehicle when there is probable cause to believe it contains

evidence or instrumentalities of a crime. See Colorado v.

Bannister, No. 79-1901 (Oct. 20, 1980); United States v.

Chadwick, 433 U.S. 1, 12 (1977); Chambers v. Maroney,

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

statements made by petitioner were volunteered, and not the result of

questioning. See generally Rhode /sland v. Innis, No. 78-1076 (May

12, 1980).

‘The presence of the handgun concealed in the gym bag itself may

have provided a sufficient ground for arrest. At the time petitioner

was stopped the District of Columbia Code (D.C. Code Ann. § 22-

3204 (1973) ‘prohibited the possession of a pistol without a license. Cf.

United States v. Bills, 555 F. 2d 1250, 1251 (Sth Cir, 1977); United

States v. Story, 463 F. 2d 326, 328 (8th Cir.), cert. denied, 409 U.S.

988 (1972).

8

(1925). Here, the van had been stopped on a public

highway, its occupants arrested for possession of

contraband cigarettes, and the police had probable cause

to believe that the cigarettes were in the van. Under these

circumstances, the search of the van was entirely proper.

2. Petitioner also contends (Pet. 20-23) that an element

of the offense of possession of contraband cigarettes is

that he was not licensed as a cigarette retailer in Virginia

at the time of his arrest, and that the government failed to

prove that element.

The short answer to petitioner’s contention is that

“when a statute sets forth a proviso which is not

descriptive of the crime, but which operates to exempt

conduct otherwise [prohibited], the burden is upon the

accused to bring himself within its protection.” United

States v. Moore, 613 F. 2d 1029, 1044 & n.127 (D.C. Cir.

1979), cert. denied, No. 79-6031 (May 19, 1980); United

States v. Chodor, 479 F. 2d 661, 663 (Ist Cir.), cert.

denied, 414 U.S. 912 (1973); United States v. Ramzy, 446

F. 2d 1184, 1186 (Sth Cir.), cert. denied, 404 U.S. 992

(1971); 7 Fifths Old Grand-Dad Whiskey v. United States,

158 F. 2d 34, 36 (10th Cir. 1946), cert. denied, 330 U.S.

828 (1947). Compare United States v. Vuitch, 402 U.S. 62,

70-71 (1971) (where enacting clause of abortion statute

contained broad exceptions to its prohibitions, the

government was required to prove that the exceptions

were inapplicable). Here, the statute proscribing the

trafficking in contraband cigarettes incorporates by

reference the tax stamp scheme of the jurisdiction where

the cigarettes are found.’ Neither the federal statute nor

918 U.S.C. (Supp. Ill) 2342(a) makes it unlawful “for any person

knowingly to ship, transport, receive, possess, sell, distribute, or

purchase contraband cigarettes.” 18 U.S.C. (Supp. Il) 2341(2)

defines “contraband cigarettes” as “a quantity in excess of 60,000

cigarettes which bear no evidence of the payment of applicable State

cigarette taxes in the State where such cigarettes are found, if such

y

the District of Columbia cigarette tax statute, however,

makes the exception upon which petitioner relies a part of

the description of the prohibited conduct. Rather, the

exception to the tax stamp requirement for out-of-state

licensees is contained in implementing regulations of the

District of Columbia Council that describe the seller’s

duties with respect to the collection of the tax.’

Accordingly, petitioner, and not the government, bore the

State requires a stamp, impression, or other indication to be placed

on packages or other containers of cigarettes to evidence payment of

Cigarette taxes * * *,”

*D.C. Code Ann. § 47-2802 (1973 & Supp. IV 1977) provides in

pertinent part:

(a) There shall be levied, collected, and paid on all cigarettes

sold in the District by licensed wholesalers, licensed retailers, or

by licensed vending-machine operators, to consumers, a tax at

the rate of 13 cents on each twenty cigarettes or fractional part

thereof, such tax to be levied, collected, and paid once only on

cigarettes sold as aforesaid.

+ * * &

(c) Said tax shall be collected and paid by the affixture of a

stamp or stamps secured trom the Collector of Taxes, denoting

the payment of the amount of the tax imposed by this chapter

upon such cigarettes, each such affixture to be on the original

package, unless the District of Columbia Council shall by

regulation permit otherwise. Cancellation of such stamps shall be

in the manner prescribed by regulation approved by the Council.

’Title 16, Section 9.4(f)(1) of the District of Columbia Regulations

on Cigarette Taxes provides, in pertinent part, as follows:

A wholesale licensee is authorized to sell to persons not

licensed under the Act, cigarettes not bearing evidence of a

payment of the tax imposed by the Act if —

* * * * *”

(ii) The purchaser, at the time of the sale, is licensed by

another jurisdiction to engage in the business of selling cigarettes

in that jurisdiction * * *.

10

burden of proving that he came within the exception

atforded out-of-state licensees.*

Moreover, even if petitioner’s construction of the

elements of the offense were correct, the testimony of a

defense witness that at the time of his arrest petitioner did

not have a current Virginia license provided evidence of

the fact that he did not fall within the exception for out-

of-state licensees. See, e.g., United States v. Calderon, 348

U.S. 160, 164 & n.1 (1954); United States v. White, 611

F. 2d 531, 536 (Sth Cir. 1980). Thus, in any event, peti-

tioner is entitled to no relief.

’Petitioner’s reliance (Pet. 22) on Colt v. United States, 158 F. 2d

641 (Sth Cir. 1946), is misplaced. The defendant in Colt was indicted

for falsely representing himself to be a citizen of the United States,

but the government failed to establish that the defendant was not, in

fact, a naturalized citizen. The Court reversed the conviction, holding

(158 F. 2d at 641) “[t}hat the defendant was not [at the time he made

the representations] a citizen by naturalization or otherwise is of the

essence of the offense.” Similarly, in United States v. Walters, 73

F. Supp. 72 (D.D.C. 1947), case certified to the Supreme Court, 175

F, 2d 340 (D.C. Cir.), appeal dismissed, 335 U.S. 869 (1948), in which

the district court granted a motion for acquittal on the charge of

carrying a pistol without a license on the ground that the indictment

had failed to allege that the defendant did not have a license, it stated

(73 F. Supp. at 73) that “[wJhere a statute defining an offense

contains an exception which is so incorporated with the language

defining the offense that the ingredients of the offense cannot be

accurately described if the exception is omitted, the indictment must

allege facts showing that the accused is not within the exception.” In

Mullaney vy. Wilbur, 421 U.S. 684 (1975), the Court held that a state

could not impose on a defendant the burden of proving the absence

of the heat of passion on sudden provocation in order to reduce a

homicide from murder to manslaughter, characterizing (421 U.S. at

696) “the presence or absence of the heat of passion on sudden

provocation [as having] been, almost from the inception of the

common law of homicide, the single most important factor in

determining the degree of culpability attaching to an unlawful » eae

homicide.” Here, by contrast, failure to fall with an exception '! nai

accorded by local regulation is not an essential part of the offense ~

prohibited by 18 U.S.C. (Supp. II1) 2342(a).

1]

CONCLUSION

[he petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN F. DEPUE

Attorney

OCTOBER 1980

DOJ-1980-10