Opposition — Dennis Schoendorf v. United States

a

OOTY ER

No. 80-1788 JUN 2 (tf

WAL Ghitin

Sieeminmit\ SR,

In th. Supreme Court of the Hnited States

OCTOBER TERM, 1980

DENNIS SCHOENDORF, PETITIONER

Vz.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCreE, JR.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether, in the circumstances of this case, the search

of a tractor-trailer violated petitioner’s Fourth Amendment

rights and warranted the exclusion of the evidence obtained.

2. Whether a statement made by petitioner following his

arrest should have been excluded from evidence.

3. Whether one of petitioner’s convictions should be re-

versed because the government failed to prove that the

goods stolen by petitioner were part of an interstate ship-

ment, as charged in the indictment.

(I)

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TABLE OF CONTENTS

Page

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' TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 442 U.S. 753 .......00000. 7

Brewer v. Williams, 430 U.S. 387 ...........6.. 10

Chambers v. Maroney, 399 U.S. 42 .......... 6,7

Coolidge v. New Hampshire, 403 U.S. 443 ...... 7

Edwards v. Arizona, No. 79-5269

(Dil 20 TIGER hic ds 5-49 beak Sv baeda see 10-11

Jones v. United States, 362 U.S. 257 ........... 6

Massiah v. United States, 377 U.S. 201 ........ 10

Miranda v. Arizona, 384 U.S. 436 ..........66. 8

Rakas v. Illinois, 439 U.S. 128 .........6.6. 4,5,6

Rhode Island v. Innis, 446 U.S. 291 ......... 9,10

Russell v. United States, 369 U.S. 749 ......... 11

Simmons v. United States, 390 U.S. 377 ........ 6

Smith v. United States, 360 U.S. 1 ............ 11

Stirone v. United States, 361 U.S. 212 ......... 1]

United States v. Astolas, 487 F. 2d 275,

cert. denied, 416 U.S. S55 is daikon ccnas eves 12

IIl

PRECEDING PAGE WAS BLANK|

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IV

Page

Cases—(Continued):

United States v. Augello, 452 F.2d 1135 ...... 12

United States v. Berger, 338 F. 2d 485,

cont. Heed, SOU Tw. FOO. oe vctnbsecd est dine 12

United States v..Waronek, 582 F.2d 1158 ..... 12

United States ex rel. Hines v. LaVallee,

521 F. 2d 1109, cert. denied, 423 U.S. 1090 .... 9

Constitution, statutes and rule:

United States Constitution, Fourth

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Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 80-1788

DENNIS SCHOENDORF, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

‘The opinion of the court of appeals (Pet. App. la-1 1a) is

not yet reported. The ‘opinion of the district court denying

petitioner’s motion to suppress (Pet. App. 17a-28a) is not

reported.

JURISDICTION

The judgment of the court of appeals was entered on

October 22, 1980. A petition for rehearing was denied on

February 25, 1981. The petition for a writ of certiorari was

filed on April 24, 1981. 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 Connecticut, petitioner was convicted of

unlawfully appropriating goods in interstate commerce, in

violation of 18 U.S.C. 659 (Count I), breaking custom seals,

2

in violation of 18 U.S.C. 549 (Count II), and transporting

stolen property in interstate commerce, in violation of 18

U.S.C. 2314 (Count III).! He was sentenced to concurrent

terms of five years’ imprisonment on Count I and two years’

imprisonment on Count II. Imposition of sentence on

Count III was suspended and petitioner was placed on five

years’ probation to begin after he had served his other

sentences.

The evidence showed that on the evening of March 22,

1979, petitioner, Ronald Jacobs, and Richard Suello stole

containers of veal (valued at $93,600) and beef (valued at

$36,400) from a warehouse in New Haven, Connecticut (Tr.

54, 26-58, 67-69, 78-79, 103, 117, 123-124, 139-142).2 The

containers had been shipped from New Zealand to New

Jersey, where they were placed under seal by the United

States Customs Service and then transported to the New

Haven warehouse (Tr. 8-52, 54, 58, 74-75, 78). Several days

after the thefts, Jacobs attempted to arrange a sale of the

meat to an FBI undercover agent posing as a trafficker in

stolen goods (Tr. 412-414, 455-460). Jacobs provided the

agent with a sample of the veal, then broke off negotiations

without explanation (Tr. 374-376, 461-464). That evening

Suello and petitioner transported a trailer containing the

veal to New Jersey (Tr. 179-183, 186-191), where, several

days later, federal agents arrested Suello and seized the

trailer (Tr. 199-200). The following day, federal agents dis-

covered and seized the trailer containing the stolen beef,

which had remained in Connecticut. Petitioner and Jacobs,

'Ronald Jacobs was tried with petitioner and convicted on the same

charges. He has filed a separate petition for a writ of certiorari, No.

80-1588. Petitioner adopts the contentions made by Jacobs. We have

previously answered those contentions in our Brief in Opposition in No.

80-1588, a copy of which has been sent to petitioner’s counsel.

“Tr.” refers to the trial transcript.

3

apparently unaware of this, made arrangements to sell the

beef to the undercover agent and to deliver it to Buffalo,

New York (Tr. 350-358, 362-363, 376-380, 423, 425, 468-476).

ARGUMENT

1. Petitioner contends (Pet. 13-16) that the stolen beef

was seized following an illegal search. The district court,

after a hearing, denied petitioner’s motion to suppress this

evidence, and the court of appeals affirmed.

a. The district court found, and the evidence at the sup-

pression hearing showed, that at approximately 3:30 a.m.

on March 31, 1979, a source who had proved reliable in the

past and whose information in the past had led to at least

ten arrests and six convictions (I S.H. 107-108)3 contacted

the F.B.1. He reported that part of the stolen shipment of

meat was in a refrigerated tractor-trailer parked in a lot

across the street from a Ramada Inn in West Haven, Con-

necticut (Pet. App. 17a-18a; I S.H. 18, 57-58, 107-109,

115-117). The.informant described the trailer and said it

might be moved soon (Pet. App. 18a; 1 S.H. 19). F.B.I.

agents drove to the lot and found a trailer closely fitting the

description given by the informant parked in the precise

location specified by the informant—a corner of the lot,

backed as far as possible into a wooded area bordering the

lot (Pet. App. 18a-19a; 1 S.H. 20). The trailer was secured

with a padlock and its refrigeration unit was running (Pet.

App. 19a; 1S.H. 20, 24). The tractor had no license plates;

the trailer had a Pennsylvania license plate (1 S.H. 20). The

driver’s side window of the tractor was down, and the door

was unlocked (Pet. App. 19a; 1S.H. 21). An agent opened

the door to see if anyone was inside the tractor; he observed

wires hanging down under the dashboard in a manner

“1S.H.”and “I1S.H.” refer to the hearings on petitioner's motion to

suppress held on February 15, 1980 and March 11, 1980, respectively.

4

which suggested that someone had tampered with the igni-

tion (Pet. App. 19a; I S.H. 21-22, 60). A check of the

Pennsylvania license showed that the trailer was registered

to Michael Erdle of Lewisburg, Pennsylvania, and that

neither the trailer nor the tractor had been reported stolen (I

S.H. 22). Agents investigating the case had never before

heard of Erdle (I S.H. 23).

An agent placed the tractor-trailer under surveillance for

one hour (Pet. App. 19a; I S.H. 23), after which he tele-

phoned an Assistant United States Attorney, who agreed

that the trailer should be searched (Pet. App. 19a-20a; I

S.H. 23). An agent then opened the trailer and discovered

the stolen meat (Pet. App. 20a; I S.H. 25-26, 68-69).

Near the end of the suppression hearing, the district court

cited Rakas v. Illinois, 439 U.S. 128 (1978), and suggested

that petitioner had not shown that he had “standing” to

challenge the search “either by way of possessory interest or

a sufficient expectation of privacy” in the tractor-trailer (I

S.H. 174-175). The court scheduled ar ther hearing for

approximately three weeks later to give petitioner an

opportunity to address this issue. At the second hearing

petitioner called one witness, Suello, who testified that

either petitioner or co-defendant Jacobs, “I don’t remember

which, but one of them said [the trailer] was theirs” (11 S.H.

212-213). Suello also testified that he had occasionally seen

the trailer in the yard of the garage run by petitioner and

Jacobs (II S.H. 209-210) and had seen either petitioner or

Jacobs move it from one place to another at the garage (II

S.H. 206-209).

The district court explicitly discounted Suello’s testi-

mony relating to ownership, noting that it was hearsay and

questioning the credibility of both Suello and the defendant

who allegedly claimed to own the trailer (Pet. App. 25a-

26a). The court held that petitioner had failed to show an

interest entitled to Fourth Amendment protection and

7

5

denied the motion to suppress (Pet. App. 26a-27a). The

court of appeals affirmed, saying (Pet. App. 6a): “On the

facts here, where neither appellant was present at the time of

the search, the tractor had no registration plates and the

trailer was registered to a Pennsylvanian not involved in the

investigation or trial, and all evidence of appellants’ owner-

ship was based on the questionable testimony of witness

Suello, we hold that the court did not err in finding that

appellants had not sustained their burden of establishing

standing by the evidence offered at the hearing on the

motion to suppress.”

b. For several reasons, petitioner’s contention does not

merit further review. First, at the suppression hearing peti-

tioner’s efforts to show “[Jeither a property [Jor a possessory

interest” (Rakas v. Illinois, supra, 439 U.S. at 148) in the

trailer were limited to Suello’s vague testimony. The district

court was entitled to discount this testimony, and it did so.

Even if it had not, the evidence presented at the suppression

hearing showed, at the most, that petitioner and Jacobs

occasionally used the trailer and may have claimed to own

it. Petitioner did not establish that he was using the trailer at

the time of the search; and as the district court said, “the fact

of registration of the trailer to a third party suggests that

that party is the owner of the trailer” (Pet. App. 25a).

Moreover, even if petitioner did own and control the

trailer, the circumstances in which it was discovered sug-

gested that it had been abandoned. The trailer was reliably

reported to be carrying contraband, and was registered toa

person apparently unconnected to the case; the tractor bore

no license plate and showed signs of having been tampered

with. Under these circumstances, both the agents at the

scene and the district judge at the suppression hearing could

have reasonably concluded that the trailer was very recently

stolen, used, and then abandoned by those who stole the

meat.

6

Petitioner correctly asserts (Pet. 14-16) that at the trial

the government attempted to link petitioner to the trailer.

Notably, the government introduced evidence that the trac-

tor had been sold to petitioner a few months before the

search. But petitioner cannot rely upon this evidence in

support of his Fourth Amendment claim. As ihe govern-

ment explained to the court of appeals (Brief for Appellee at

20), at the time of the suppression hearing it did not know

that the tractor had been sold to petitioner. In contrast, as

the district judge said when petitioner attempted to reopen

the suppression question at trial, “[i]t is inconceivable * * *

that [petitioner] didn’t know, if, in fact he did enter into a

transaction [to purchase the tractor] * * * that he had done

so” (Tr. 372). Thus the trial judge correctly ruled that peti-

tioner’s failure to adduce evidence of ownership at the

suppression hearing could not be excused (Tr. 371-372).

Petitioner had the burden of establishing that he had a

Fourth Amendment interest in the trailer (Rakas v. Illi-

nois, supra, 439 U.S. at 130-131 n.1, citing Simmons v.

United States, 390 U.S. 377, 389-390 (1968), and Jones v.

United States, 362 U.S. 257, 261 (1960)), and any testimony

he gave in an effort to do so could not have been used

against him at trial (Simmons v. United States, supra, 390

U.S. at 389-394). Despite ample opportunity to make his

showing at the suppression hearing, petitioner failed to do

so. In any event, the court of appeals held that “the trial

testimony did not add in any significant degree to the evi-

dence considered and found insufficient at the suppression

hearing” (Pet. App. 6a-7a).

The second reason that petitioner’s Fourth Amendment

claim does not warrant further review is that the search was

lawful. The general principle is that motor vehicles may be

searched, on probable cause, without a warrant. See, e.g.,

Chambers v. Maroney, 399 U.S. 42, 48 (1970). Here there

can be no doubt that the agents had probable cause to

search the trailer. An informer who had repeatedly proved

7

his reliability gave them a precise description of the tractor,

the trailer, and their location, all of which were confirmed,

and said that the trailer contained a shipment of beef that

the agents knew to be stolen. And it is clear that the tractor-

trailer was searched under conditions in which a warrant

was unnecessary.

“There are essentially two reasons for the distinction

between automobiles and other private property. First,

* * * the inherent mobility of automobiles often makes it

impracticable to obtain a warrant * * *. In addition, the

configuration, use, and regulation of automobiles often

may dilute the reasonable expectation of privacy that exists

with respect to differently situated property.” Arkansas v.

Sanders, 442 U.S. 753, 761 (1979). The tractor-trailer was, if

anything, far more “mobile” than the automobile the search

of which was upheld in Chambers v. Maroney, supra; the

tractor-trailer was parked in a location from which it could

be easily moved, and the agents had reliable information

that it was about to be moved. Moreover, the “configura-

tion, use, and regulation” of a refrigerated tractor-trailer

make expectations of privacy in it considerably weaker than

those an owner might have in an automobile. A refrigerated

tractor-trailer is characteristically used for commercial

purposes—it is, obviously, unlikely that it would be used to

keep personal effects—and it and its contents are subject to

routine and extensive regulation and inspection.‘

‘The contrast with Coolidge v. New Hampshire, 403 U.S. 443(1971),

where this Court refused to uphold the search of an automobile, is

instructive. In Coolidge, the plurality noted (id. at 460):

[T]he police had known for some time of the probable role of

the * * * car in the crime. [The defendant] * * * had been

extremely cooperative throughout the investigation, and there

was no indication that he meant to flee. He had already had ample

opportunity to destroy any evidence he thought incriminating.

There is no suggestion that, on the night in question, the car was

being used for any illegal purpose, and it was regularly parked in

i’

8

Finally, there was abundant evidence linking petitioner

to the theft of both the veal and the beef. Suello’s testimony

detailed petitioner’s role, and the undercover agent to

whom petitioner and Jacobs attempied to sell the stolen

goods testified to those transactions. Under the circum-

stances, any error in the admission of evidence connected to

the search of the trailer, which contained only the stolen

beef, appears to have been harmless.

2. Petitioner also contends (Pet. 16-24) that an incrimi-

nating statement he made after his arrest should have been

suppressed because it was obtained in violation of Miranda

v. Arizona, 384 U.S. 436 (1966).

a. When petitioner surrendered to the authorities he was

accompanied by his attorney. After being informed of his

rights he invoked his right to remain silent (I S.H. 33-34).

He was then left with agents who fingerprinted him, photo-

graphed him, asked him his height, weight, address and

other routine information for processing purposes (I S.H.

101). An F.B.I. agent testified that in the course of this

routine questioning (I S.H. '01-102):

[W]e asked him, * * * “Do you have any vehicles

other than,” you know, “the blue Lincoln that was

seized down there?”

He said, “Well, no, you know, because I’m partner in

the used car lot, but[”] he said, “about that blue Lin-

coln, when I’m going to get that thing back?”

the driveway of [the defendant's] house. * * * The objects that the

police are assumed to have had probable cause to search for in the

car were neither stolen nor contraband nor dangerous.

Here, the authorities had just learned of the tractor-trailer at three

o'clock in the morning, and they learned that it was being used in

connection with a crime. They also learned that it would shortly be

moved; and they were searching for contraband.

9

I said, “Gee, you'll have to ask Special Agent Wein-

schenk. He’s the one. He’s a Customs agent.”

And Special Agent W[e]inschenk said, “Well, we’re

going to keep it because it was seized as an instrumen-

tality of a crime, as evidence, and we’re going to hold it

until disposition by the Court. Because it was—you

know, it was used to haul some meat down there in

New Jersey.”

And at that point [petitioner] said to me, if |

remember correctly, he said, “The meat was never in

that car.” * * *

And we naturally said, “Well, would you care to

elaborate on that?”

And he smiled and said, “No. I’m not going to say

anything further.”

Petitioner’s statement about the meat was introduced at the

trial over his objection (Tr. 604-605). On appeal, the Second

Circuit held that petitioner’s remarks were “unsolicited

answers to permissible personal data questions” (Pet. App.

9a). The court said: “there was no leading conversation, no

devious questions, and no attempt to evade Miranda safe-

guards” (ibid.). The court concluded (ibid.) that the argu-

ments against suppressing petitioner’s statements were

“stronger * * * for the government than” those accepted by

this Court in Rhode Island v. Innis, 446 U.S. 291 (1980).

b. The court of appeals’ holding is correct. Apparently,

neither petitioner nor his counsel objected to the other

personal identification questions asked by the agents; in any

event, petitioner concedes (Pet. 23-24) that such questions

are appropriate. See United States ex rel. Hines v.

LaVallee, 521 F. 2d 1109 (2d Cir. 1975), cert. denied, 423

U.S. 1090 (1976). Asking the defendant whether he is an

automobile owner, and if so how many automobiles he

_- |

">

10

owns, is not an inherently suspicious or obviously inap-

propriate form of personal mepatetication: and the agents

asked no other questions.

In any event, petitioner’s ownership of the Lincoln was

apparently not in issue, so his answer to the question did not

damage him. The remark that may have damaged) peti-

tioner—his statement about the beef—was admissible for

several reasons. First, it was not the product of “interroga-

tion” within the meaning of Miranda. Petitioner asked

about the Lincoln and received a straightforward response;

there is no reason to believe that Agent Weinschenk

intended to do anything other than answer petitioner’s

question (see Rhode Island v. Innis, supra, 446 U.S. at

301-302, 303 & nn. 7,9). As the court of appeals suggested,

the police officers’ remarks in /nnis were, if anything, more

contrived and less easily explainable as something other

than an effort to obtain information from the defendant.

Moreover, Agent Weinschenk could not reasonably have

known (see id. at 301-303) that his answer to petitioner’s

question, an answer that may well have been a matter of

public record, would have elicited an incriminating

response. Indeed, it is difficult to see how the agent could

have answered petitioner’s question in any other way with-

out misleading petitioner or suggesting that the automobile

was being held at the authorities’ discretion—a suggestion

that itself might have been coercive.®

SHere, again, the admission of petitioner's statement may well have

been harmless in view of the other evidence introduced against him. See

page 8, supra.

‘For similar reasons, the agents did not “ ‘deliberately elicit{]'

information from petitioner in the absence of counsel. See Rhode

Island v. Innis, supra, 446 U.S. at 300 n.4; Brewer v. Williams, 430

U.S. 387, 599-401 (1977); Massiah v. United States, 377 U.S. 201, 206

(1964).

Finally, petitioner himself appears to have “initiat[ed]

[the] exchange[]” (Edwards v. Arizona, No. 79-5269 (May

18, 1981), slip op. 7) that led to his statement about the beef.

The subject of contraband did not arise at all until peti-

tioner began an independent conversation about the reason

his car had been seized. Once petitioner made that inquiry,

the agents could not give a truthful answer without men-

tioning the unlawful activity charged against petitioner.

3. Finally, petitioner contends (Pet. 24-32) that his con-

viction on Count I should be reversed because the indict-

ment charged a theft from an interstate shipment and the

government proved a theft from a foreign shipment. This

contention is wholly without merit. The statute on which

Count I was based, 18 U.S.C. 659, prohibits theft from

either interstate or foreign shipments. Petitioner contends

that the meat was part of a foreign shipment because it was

still under a customs seal. But “ {cJonvictions are no longer

reversed because of minor and technical deficiencies which

did not prejudice the accused.’ ” Russell v. United States,

369 U.S. 749, 763 (1962), quoting Smith v. United States,

360 U.S. 1, 9 (1959). See also Fed. R. Crim. P. 52(a). The

government proved that the meat was under customs seals,

which were broken by petitioner; and it was undisputed that

the meat had been moved from New Jersey to Connecticut

before it was stolen. Thus it is difficult to imagine a more

technical objection to the indictment than that raised by

wetitioner. Petitioner suggests no way in which he was

pzejudiced by this supposed defect, and plainly he could not

have been.’

’Petitioner’s reliance on Stirone v. United States, 361 U.S. 212

(1960), is misplaced. In Stirone the defendant was charged with violat-

ing the Hobbs Act, 18 U.S.C. 1951, by interfering with interstate

commerce. The indictment charged interferences with the movement of

sand into Pennsylvania; the government was allowed to prove interfer-

ence with the movement of steel out of Pennsylvania. /d. at 217. Plainly.

this variance might have affected the defendant's rights in a way the

variance alleged by petitioner did not.

12

In any event, there is no variance in this case. Courts have

emphasized that 18 U.S.C. 659 was designed by Congress to

promote the flow of goods in interstate commerce, and that

Congress’s purpose “is not to be hampered by technical

legal conceptions.” United States v. Astolas, 487 F. 2d 275,

279 (2d Cir. 1973), cert. denied, 416 U.S. 955 (1974). See

also United States v. Waronek, 582 F. 2d 1158, 1161 (7th

Cir. 1978); United States v. Augello, 452 F. 2d 1135, 1141

(2d Cir. 1971); United States v. Berger, 338 F. 2d 485, 487

(2d Cir. 1964), cert. denied, 380 U.S. 923 (1965). Conse-

quently, there is no reason to believe, as petitioner asserts

without citing authority (Pet. 26), that a shipment must be

either interstate or foreign and cannot be both.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

DEBORAH WATSON

Attorney

JUNE 1981

DOJ-1981-06

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