Appendix — Buettner-Janusch v. United States

80-2054

————lEEEEEEo ESS

Office- Supreme Court, U.S.

_ kILLED

jun 4 1981

IN THE

ALEXANDeté L STEVAS,

3 ERK

Supreme Court of the Unit

OCTOBER TERM, 1980

JOHN BUETTNER-J ANUSCH,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETER L. ZIMROTH

80 Pine Street

New York, New York 10005

(212) 422-4030

Attorney for

KOSTELANETZ & RITHOLZ John Buettner-Janusch

Jules Ritholz

Stuart E, Abrams

Of Counsel

THE PAUL M. HARROD COMPANY, BALTIMORE, MARYLAND 21234

TABLE OF CONTENTS

APPENDIX A--

Opinion of United States Court of

Appeals for the Second Circuit.........

APPENDIX B—

Opinion of District Court,

GIES HERICR 27, TFOG. oi cccecencccces

APPENDIX C—

Opinion of District Court,

A: SUN 6.55 6k bb tddewnenes

APPENDIX D—

Opinion of District Court.

SE Fy Nb vnc oececas voennes

APPENDIX E-

Opinion of District Court,

Dated October 29, 1980 ..............

APPENDIX F-—

Photograph of Fume Hood............

Page

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JOHN BUETTNER-J ANUSCH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

App. |

APPENDIX A

UNITED STATES COURT OF APPEALS

FoR THE SECOND CIRCUIT

+

No. 876—September Term, 1980

(Argued March 5, 198} Decided April 6, 1981)

Docket No. 80-1430

+

UNITED STATES OF AMERICA,

Appellee,

—against—

JOHN BUETTNER-JANUSCH,

Defendant-Appellant.

Before:

KAUFMAN and TIMBERS, Circuit Judges, and

WarD, District Judge.*

-

Appeal from a judgment entered in the United States

District Court for the Southern District of New York,

° Of the United States District Court for the Southern District of New

York, sitting by designation.

App. 2

Charles L. Brieant, Jr., Judge, convicting appellant of

narcotics offenses and of knowingly making false state-

ments to government officials.

Affirmed.

--

ROANNE L. MANN, Assistant United States

Attorney for the Southern District of

New York (John S. Martin, Jr., United

States Attorney, Robert S. Litt, Assistant

United States Attorney, of counsel), for

Appellee.

Peter L. ZIMROTH (Jules Ritholz, Stuart E.

Abrams, Kostelanetz & Ritholz, New

York, N.Y., of counsel), for Defendant-

Appellant.

—

KAUFMAN, Circuit Judge:

This case chronicles the tragic culmiration of the career

of Dr. John Buettner-Janusch, one of the world’s leading

authorities on physical anthropology. The Government

established that Dr. Buettner-Janusch, in violation of

both the criminal law and his duty to the academic

community, manufactured illegal drugs in his laboratory

at New York University (“NYU”). Buettner-Janusch’s

illicit activities were first brought to light by the private

investigative work of his undergraduate research assis-

tant, Richard Macris, and a fellow Professor of Anthro-

pology, Dr. Clifford Jolly. This appeal derives its legal

significance from the Government’s response to Macris’s

App. 3

and Jolly’s contentions. Deciding to eschew the custom-

ary procedure of securing a warrant to search the defen-

d-nt’s laboratory, the Government relied instead on the

a,.yarent authority of Macris and Jolly to consent to the

investigation. We are thus faced with the difficult task of

evaluating the power of third parties to permit govern-

mental intrusion into an area which a defendant reasona-

bly regards as private. We are of the view that the

circumstances present here confirm that Macris and Jolly

had the requisite authority. Accordingly, we agree with

Judge Brieant that the Government’s conduct did not

violate the Fourth Amendment.

Because the constitutionality of an allegedly unlawful

search depends to a large degree on underlying circum-

stances, we must set out the facts in some detail.

A grand jury filed a six count indictment on October 3,

1979, charging Buettner-Janusch with: conspiracy to

manufacture and distribute LSD, methaqualone, and

other controlled substances; manufacturing and possess-

ing with intent to distribute approximately 1.2 kilograms

of methaqualone; distributing and possessing with intent

to distribute cylert pemoline, a controlled stimulant; con-

spiracy to obstruct a criminal investigation, and, in

counts 5 and 6, knowingly making false statements to two

Assistant United States Attorneys. Shortly thereafter,

Buettner-Janusch moved to suppress certain evidence

seized from his laboratory on May 17, 1979 by agents of

the Drug Enforcement Administration (DEA). Judge

Brieant filed three comprehensive opinions, in which he

summarized five days of evidentiary hearings and dis-

cussed all of the defendant’s claims.

App. 4

These hearings established that in 1973, Buettner-

Janusch relinquished his position as Professor of Anthro-

pology at Duke University to become Chairman of the

Anthropology Department at NYU. To accommodate the

defendant's research, and to house the equipment he had

brought with him from Duke,' the University remodeled

a section of the fourth floor of Rufus Smith Hall. Prior

to Buettner-Janusch’s arrival, the front two-thirds of that

floor were occupied by offices. Professor Jolly’s labora-

tory was located at the rear of the building. During the

remodeling process, the offices were eliminated. But the

masonry wall that separated them from Jolly’s research

facility was left intact, except that the door in the middle

of the wall was taken off its hinges, leaving an open

passageway. After the remodeling, access to Jolly’s labo-

ratory could be gained either by passing through Buett-

ner-Janusch’s new laboratory and through the open door-

way, or by using a freight elevator situated at the rear of

Jolly’s laboratory.

At Buettner-Janusch’s invitation, Jolly and the gradu-

ate students who assisted him made frequent use of some

of the equipment in the new laboratory, including the

deionized water, the aspirator, the gas line, and the

measuring scales. They used the rest of the new facilities

less regularly; for example, Jolly could not remember

using the fume hood at all in 1979.

Access to the laboratory was not limited to Buettner-

Janusch and Jolly. Richard Macris, an NYU undergradu-

ate whom Buettner-Janusch had hired as a laboratory

assistant in 1977, also had keys to the door of the new

' One of the items of equipment Buettner-Janusch transported from

Duke was a fume hood, a glass walled enclosure designed to prevent

tonic gases from escaping into the laboratory.

App. 5

laboratory. The defendant attempted to portray Macris as

a mere errand boy, but Judge Brieant found that Macris

had “full use of all the chemicals [in Buettner-Janusch’s

laboratory], and he frequently performed experiments

. . . at defendant’s request.” United States v. Buettner-

Janusch, No. 79 Cr. 710-CLB, slip op. at 5 (S.D.N.Y.

July 7, 1980).?

In early February 1979, Macris began to suspect that

some of the chemicals Buettner-Janusch had asked him to

synthesize were illegal drugs, or so-called controlled sub-

stances. He reported his suspicions to Jolly, who advised

him to keep a diary of what he observed. Jolly, too,

commenced an inquiry into Buettner-Janusch’s work,

taking samples of various chemicals, recovering scraps of

paper from garbage pails, and photographing suspicious

containers.

Alarmed by what they found, Macris and Jolly met

with Macris’s brother Robert, a practicing New York

attorney, to teil him they believed Buettner-Janusch was

matufacturing methaqualone. Fearful of making a false

accusation against someone of Buettner-Janusch’s promi-

nence, they decided to secure more evidence before going

to the authorities. Robert arranged, through interme-

diaries, to have the surreptitiously obtained samples

tested on a confidential basis at the DEA laboratory in

New York City. In mid-May, the Macris brothers and

Jolly received word that the DEA had found the samples

to contain a high concentration of methaqualone.

Several days later, in the early afternoon of. May 16,

they conveyed their startling findings to Dr. John Sawhill,

2 During the evidentiary hearings, Macris testified that he had permis-

sion to “enter all areas within the laboratory to locate chemicals and

for other purposes.”

App. 6

then-President of NYU, and to Andrew Schaffer, NYU's

general counsel. Later that day, Schaffer, Jolly, and Rich-

ard and Robert Macris met with Assistant United States

Attorney Dominic Amorosa and DEA Agent Jack Toal in

the U.S. Attorney’s office for the Southern District of

New York. There, Richard turned over the diary he had

compiled on Buettner-Janusch’s activities, and Jolly de-

livered samples of the compounds the defendant had

synthesized and relinquished certain photographs he had

taken in defendant’s laboratory. Macris and Jolly also

apprised the federal authorities of the results of the

confidential tests the DEA had conducted. Confident that

this evidence satisfied the requirement of probable cause,

Amorosa proposed obtaining a warrant to search the

laboratory. In response, Schaffer suggested that NYU

could consent to a search, thereby obviating the need for

a warrant. He added, however, that final authorization

would have to come from President Sawhill. Hopeful that

permission would soon be forthcoming, Amorosa asked

Jolly and Richard Macris to assist the DEA agents in the

search of defendant’s research facility. They readily

agreed.

Schaffer relayed Sawhill’s consent the following day,

and the quest to discover whether Buettner-Janusch had

ventured into illegal drug-making was planned for ap-

proximately 10 o’clock that night. At the appointed hour,

while Buettner-Janusch was attending a formal dinner,

Richard and Robert Macris met Jolly, Toal, and five other

DEA agents, including supervisory chemist Jeffrey Web-

er, outside Rufus Smith Hall. After assuring himself that

no one was in the laboratory, Jolly admitted the search

party, using his key to gain entry. He and Richard Macris

pointed out suspicious containers to the agents, who, at

Weber’s instructions, seized several controlled substances.

App. 7

They found methaqualone in the fume hood and on a

laboratory bench, marijuana in the new laboratory’s

“cold room,” lysergic acid hydrazide on a laboratory

bench, and a receptacle containing two vials of ergota-

mine tartrate, a precursor of LSD, which Jolly retrieved

from the laboratory freezer.

Much of the testimony at the hearing centered on the

circumstances under which Weber ordered the seizure of

the methaqualone and the LSD precursors. Weber stated

that he observed four translucent plastic containers lying

in the fume hood almost as soon as he entered the

laboratory. He did not inspect them immediately, how-

ever, for his attention was drawn to an open notebook

lying on a laboratory bench. The notebook contained a

series of entries which Weber interpreted as the melting

points of methaqualone-containing compounds in various

stages of purification. These entries corresponded to the

markings on the receptacles in the fume hood. But this

was not the only information Weber had to support his

belief that these receptacles contained methaqualone. As

a result of Jolly’s prior investigation, Weber already knew

that methaqualone had been detected in the laboratory,

and during the search he discovered several jars filled

with methaqualone precursors. Upon examining the con-

tainers, he observed that they held a white, granular solid,

resembling an impure form of the drug.’ The chemist

admitted, however, that even with all of this information

he was not sure that the receptacles contained a controlled

substance. But his strong suspicion ripened into certainty

when he unscrewed the ton of one of the containers and

’ Judge Brieant described these containers as “sufficiently transparent

to allow observation of the nature and appearance of the substances

inside.” United States v. Buetiner-Janusch, No, 79 Cr. 710-CLB, slip

op. at 7, (S.D.N.¥. May 28, 1980).

App. 8

detected the powerful odor of toluene, a solvent regularly

used in methaqualone synthesis.

In contrast, the translucent container Jolly retrieved

from the freezer provided Weber with little information

as to its contents. Although this receptacle was con-

structed of plastic with the same opacity as that used in

the methaqualone containers, the contents of this recepta-

cle—two vials which proved to hold ergotamine tartrate—

were not discernible through the container walls. And

because Weber had no prior information that LSD was

being synthesized in the laboratory, he had no reason to

believe that this receptacle contained LSD precursors.

Based on these factual findings, and relying primarily

on Arkansas v. Sanders, 442 U.S. 753 (1979), and United

States v. Dien, 609 F.2d 1038 (2d Cir. 1979), adhered to,

615 F.2d 10 (2d Cir. 1980), Judge Brieant suppressed the

receptacle retrieved from the freezer, but determined that

the seizure of the containers of methaqualone did not

offend the Fourth Amendment.‘ The judge also ruled

that only Macris and Jolly had authority to consent to the

search; the University did not.

At trial, the Government introduced the admissible

fruits of the May 17 search, supplemented by the testi-

mony of Schaffer, Richard Macris, Jolly, Toal, and Web-

er. Before the case went to the jury, Judge Brieant

dismissed the obstruction of justice count. The jury

convicted the defendant on four of the five remaining

counts, and acquitted him of distributing cylert pemoline.

Judge Brieant sentenced Buettner-Janusch to a total of

five years’ imprisonment, to be followed by a two-year

special parole term on the manufacturing count.

4 The lower court also suppressed evidence seized during a warrantless

search of a locked enclosure in the basement of Rufus Smith Hall on

August 2, 1979. The legality of that search is not before us.

App. 9

II.

Having stated the factual background with some detail,

we approach our discussion of the law. It is basic Fourth

Amendment jurisprudence that when the Government

seeks to intrude upon an individual’s legitimate expecta-

tions of privacy, it must either obtain a warrant from a

neutral magistrate or bring its search within one of the

few “jealously and carefully drawn” exceptions to the

warrant requirement, Jones v. United States, 357 U.S.

493, 499 (1958). Throughout this litigation, the -prosecu-

tion has maintained that the May 17 search was validated

by the consent of Jolly and Richard Macris.’ To satisfy

the burdens imposed on it by the third party consent

principle, the Government must show, by a prepon-

derance of the evidence, that the consent to search was

freely and voluntarily given, see Schneckloth v. Busta-

monte, 412 U.S. 218 (1973), and was obtained from

someone “who possessed common authority over or other

sufficient relationship to the premises or effects sought to

be inspected.” United States v. Matlock, 415 U.S. 164,

171 (1974). Since third party consent does not involve the

vicarious waiver of a defendant’s constitutional rights, it

validates a search only when a defendant can be said to

have assumed the risk that someone having authority over

the area to be searched would permit the governmental

intrusion in his own right. See id. at 171 n.7; United

States v. Block, 590 F.2d 535, 539-40 & n.5 (4th Cir.

1978). Buettner-Janusch assails the constitutionality of

the May 17 search both on the ground that consent was

$ Although the Government urges us to uphold the University’s power

to consent to the search, in light of our disposition of the other issues

raised in this appeal, we need not reach that question.

App. 10

- not given voluntarily and on the theory that Jolly and

Macris lacked the requisite authority to grant permission

to search.°

A.

The question of the voluntariness of Macris’s and

Jolly’s consent need not detain us long. Whether consent

was given voluntarily is an issue of fact, to be determined

by the trial judge, who is to draw his findings from all of

the appropriate and relevant circumstances. Schneckloth

v. Bustamonte, supra, 412 U.S. at 248-49. The court’s

findings will not be set aside on appeal unless they are

clearly erroneous. United States v. Sanchez, 635 F.2d 47

(2d Cir. 1980); United States v. Griffin, 530 F.2d 739, 742

(7th Cir. 1976); United States v. Bronstein, 521 F.2d 459,

463 (2d Cir. 1975), cert. denied, 424 U.S. 918 (1976).

Moreover, it is well settled that consent may be inferred

from an individual’s words, gestures, or conduct. United

States v. Griffin, supra, 530 F.2d at 742. Thus a search

may be lawful even if the person giving consent does not

recite the talismanic phrase: “You have my permission to

search.”

Judge Brieant’s finding that both Macris and Jolly

impliedly consented to the May 17 search is amply sup-

6 As a preliminary matter, we must address Buettner-Janusch’s conten-

tion that because the DEA agents who conducted the search relied only

on the University’s power to consent, the prosecuticn cannot now

assert that Macris and Jolly could also authorize this intrusion. This

argument must be rejected, since it “ignores the settled rule that in

judging the legality of a search, courts must apply an objective

standard and will not be bound by the subjective ‘beliefs of the

arresting officer [or] the Assistant United States Attorney at trial.’

United States v. Tramontana, 460 F.2d 464, 466 (2d Cir. 1972).” United

States v. Jenkins, 496 F.2d 57, 72-73 (2d Cir. 1974), cert. denied, 420

U.S. 925 (1975). See United States v. Ochs, $95 F.2d 1247, 1256 (2d

Cir.), cert. denied, 444 U.S. 955 (1979).

App. 11

ported by the record. These two initiated the investigation

of Buettner-Janusch’s illegal activities; they reported their

findings to the University and to the U.S. Attorney’s

Office, among others; and they readily agreed to assist

the DEA agents during the raid. Moreover, the coopera-

tive relationship that existed among Macris, Jolly, and the

DEA agents on the night of the search provides strong

evidence that these informants freely acquiesced in the

investigation. See United States v. Kurck, 552 F.2d 1320

(8th Cir. 1977) (per curiam). In short, there is “no

evidence . . . of coercion or other circumstances that

would render consent invalid.” United States v. Candella,

469 F.2d 173, 175 (2d Cir. 1972), citing United States v.

Rothberg, 460 F.2d 223, 224 (2d Cir. 1972).

B.

This brings us to the heart of defendant’s constitutional

objections—that neither Jolly nor Macris had the author-

ity to consent to the warrantless search of May 17. We

have had several opportunities since the Supreme Court

decided United States v. Matlock, supra, to consider the

scope of the third party consent principle. The well

established rule in this Circuit is that “[c]onsent to a

search by one with access to the area searched, and either

common authority over it, a substantial interest in it or

permission to exercise that access, express or implied,

alone validates the search.” United States v. Gradowski,

502 F.2d 563, 564 (2d Cir. 1974) (per curiam). See United

States v. Pravato, 505 F.2d 703, 704 (2d Cir. 1974)

(dictum); United States v. Jenkins, 496 F.2d 57, 72 (2d

Cir. 1974), cert. denied, 420 U.S. 925 (1975).

Judge Brieant, applying this standard, found that both

Macris and Jolly had access to Buettner-Janusch’s labora-

App. 12

tory, that Macris had common authority over it, and that

both Macris and Jolly had express or implied permission

to use the facility. We find ourselves in total agreement.

The simple answers are that both Macris and Jolly had

keys to the defendant's laboratory, thus satisfying the

access requirement of Gradowski. Furthermore, to per-

form his laboratory duties, Macris was authorized to

enter any part of the laboratory and to open any jars of

chemicals found there. These facts clearly establish both

“common authority” and “permission to exercise ac-

cess.”’ Jolly also satisfied the second branch of the

Gradowski test because he had standing permission to use

the equipment in Buettner-Janusch’s laboratory, and was

required to pass through it to reach his own facility.

But the constitutional inquiry does not end at this

point, as Buettner-Janusch correctly contends. He main-

7 Macris, feigning mononucleosis, asked Buettner-Janusch for a leave

of absence in early May. The defendant, who had been unable to pay

Macris for any part of the work he performed in 1979, granted the

request, but invited Macris to return as soon as he recovered. Buettner-

Janusch now argues that these circumstances undercut the Govern-

ment’s assertion that Macris could consent to the search. But the

questions of implied permission and common authority are not to be

decided simply on the basis of an employment relationship. While such

a relationship may be strong evidence of the third party's power to

consent, see United States v. Murphy, 506 F.2d 529 (9h Cir. 1974) (per

curiam), cert. denied, 420 U.S. 996 (1975); United States v. Sells, 496

F.2d 912 (7th Cir. 1974) (per curiam), its absence is not determinative,

see United States v. Matlock, 415 U.S. 164 (1974) (joint tenant could

consent to a search of common area); Frazier v. Cupp, 394 U.S. 731,

740 (1969) (joint user could consent to search of duffel bag); United

States v. Long, 524 F.2d 660 (%h Cir. 1975) (wife could consent to

search of house she formerly shared with husband); United Srates v.

Jenkins, supra (joint tenant could consent to search of apartment);

United States v. Cataldo, 433 F.2d 38 (2d Cir. 1970), cert. denied, 401

U.S. 977 (1971) (same).

Moreover, Buettner-Janusch did not regard Macris’s departure as

permanent. He understood that Macris would resume working in the

laboratory as saon as he “recovered” from his feigned illness. Indeed,

Macris returned to the facility in June, 1979, several weeks after the

search, and began to work for Jolly.

App. 13

tains that even if Macris and Jolly could allow the DEA

agents to enter the laboratory, they could not authorize an

examination of its enclosed areas, such as the fume hood,

cabinets, cold room, and freezer. This is so, the defendant

argues, because he had an independent expectation of

privacy in these areas.

To evaluate this claim, we must explore the relationship

between the doctrine of ‘hird party consent and the

concept of expectation of privacy. Without engaging in

“metaphysical subtleties,” Frazier v. Cupp, 394 U.S. 731,

740 (1969), we recognize that not all the areas or con-

tainers in a room are equally private. As an illustration, a

person has a greater expectation of privacy related to

items hidden in his wall safe than in those scattered over

his kitchen table. If a specific area is in fact surrounded

by an independent privacy interest, a government agent

must either obtain a warrant to search it or is required to

bring his examination within one of the exceptions to the

warrant requirement. Thus, the Government may scruti-

nize even the most private enclosure if the third party has

the authority to permit the intrusion. Here too, the third

party’s power to consent is to be tested under the familiar

Gradowski standard.

We agree with the district court that Buettner-Janusch

forfeited any reasonable expectation of privacy by grant-

ing permission to use the enclosed area of his laboratory

to Macris, Jolly, and at least eight other persons.* But

8 The defendant argues that because he transported the fume hood

from Duke University to NYU, he must have had a heightened

expectation of privacy concerning it. But even if we were to regard this

as evidence that Buettner-Janusch enjoyed some sort of property right

to the hood, his reliance on the law of property is misplaced. Standing

alone, such rights do not necessarily give rise to interests protected by

the Fourth Amendment. See Katz v. United States, 389 U.S. 347

(1967); Jones v. United States, 362 U.S. 257 (1960). And although the

App. 14

assuming arguendo that Buettner-Janusch retained an

independent privacy interest in these areas, both Macris

and Jolly had access and at least implied permission to

use them. Thus, ihis aspect of the May 17 search was also

lawful. See United States v. Gradowski, supra.

Finally, Buettner-Janusch maintains that even if the

Government could search the fume hood and the other

enclosed areas, it could not examine the containers of

methaqualone found in the hood or the receptacle con-

taining the LSD precursors which Jolly retrieved from the

freezer. Our response to this is that the analysis we have

recited has disposed of this claim. If the defendant had an

independent, reasonable expectation of privacy in these

containers, the agents either had to secure a warrant or

obtain valid third party consent. To determine whether

the defendant had a legitimate privacy interest in a

particular receptacle, we look to Arkansas v. Sanders,

442 U.S. 753 (1979), which instructs that:

Not all containers and packages found by police

during the course of a search will deserve the full

protection of the Fourth Amendment. Thus, some

containers (for example, a kit of burglar tools or a

gun case) by their very nature cannot support any

reasonable expectation of privacy because their con-

tents can be inferred from their outward appearance.

Similarly, in some cases the contents of a package

will.be open to “plain view,” thereby obviating the

need for a warrant.

Id. at 764 n.13. See United States v. Mannino, No.

80-1206, slip op. at 340 (2d Cir. Nov. 18, 1980) (requiring

defendant may have derived a legitimate expectation of privacy by

exercising his right to prevent others from using the hood, see Rakas v.

Miinois, 439 U.S. 128, 143 n.12 (1978), the fact remains that he did not

exercise this right with respect to Macris or Jolly.

App. 15

some “objective, external evidence of an expectation of

privacy.”); United States v. Dien, 609 F.2d 1038 (2d Cir.

1979), adhered to, 615 F.2d 10 (2d Cir. 1980) (holding that

marijuana hidden within sealed cardboard boxes was not

within “plain view,” so that the boxes could not be

opened without a warrant).

Judge Brieant correctly applied the Sanders rule to the

various containers seized in Buettner-Janusch’s labora-

tory. Agent Weber lawfully examined the containers dis-

covered in the fume hood since he could properly infer

they contained methaqualone from their outward appear-

ance.*® Indeed, when viewed in the context in which they

were seized, the compounds were, for all practical pur-

poses, in “plain view.” See United States v. Callabrass,

607 F.2d 559, 564 (2 Cir. 1979), cert. denied, 446 U.S. 940

(1980). In contrast, Buettner-Janusch retained a legitimate

expectation of privacy in the container Jolly removed

from the freezer, since this object divulged no clues as to:

its contents until Weber removed its top.'® But applying:

’ At the moment Weber opened these items, he already knew that

Jolly had obtained a sample of methaqualone from the laboratory. He

had also discovered partially empty jars containing precursors to

methaqualone, and had examined the melting point data in the

laboratory notebook. Furthermore, he could perceive through the

containers’ translucent walls that they were filled with a whitish

granular substance that resembled methaqualone in an impure state.

10 Judge Brieant concluded his analysis of the legality of Weber’s

search at this point, relying on United States v. Dien, supra, for the

principle that once a government agent discovers a container in which

a defendant retains a legitimate expectation of privacy, the agent may

not examine it without a warrant. Although not strictly necessary to

our holding, it may be useful if we explain the bearing of Dien on the

issues before us. In Dien, we held unlawful an examination of three

cardboard boxes partially secured with tape and found in defendants’

van. We noted that the expectation of privacy surrounding a sealed

package is not vitiated merely because it is found in an automobile,

which itself is subject to a diminished expectation of privacy. See

App. 16

Gradowski to that object, we note that Macris had

Buettner-Janusch’s clear permission to open any of the

jars of chemicals in the laboratory. Presumably then, he

could have examined the two vials of LSD precursors that

Jolly removed from the freezer. Thus, it was lawful for

DEA chemist Weber, who searched the laboratory and

vials at Macris’s invitation, to do the same.

*

Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States,

267 U.S. 132 (1925).

Dien’s rationale was that the twin policies underlying the automobile

exception—the inherent mobility of automobiles and the presumably

lesser expectations of privacy that surround them—do not apply to

luggage or similar containers discovered during an automobile search.

See Arkansas v. Sanders, supra. \n contrast, the third party consent

exception rests on totally different considerations. As we have stated at

some length, this principle is premised on the notion that the third

party has authority to consent to the search in his own right. See

United States v. Matlock, supra. Thus, it is incorrect to hold that

because the automobile exception is inapposite in a particular case, the

third party consent exception also has no application. In short, nothing

in Dien prevents a third party from permitting a search of a sealed

container, provided his authority to consent satisfies the Gradowski

requirements.

Finally, we reject the defendant’s argument that Walter v. United

__ States,_447 U.S. 649 (1980), required the Government to secure a

search warrant before analyzing either the samples of methaqualone it

received from Jolly or the substances it seized during the May 17

search. In Walter, a divided Court held that although FBI agents had

lawfully obtained an allegedly obscene film, they could not screen it

without first obtaining a warrant. Walter is distinguishable from the

instant case in two respects. Unlike the defendant in Walter, Buettner-

Janusch had no independent expectation of privacy in the chemicals

seized from his laboratory. These substances were either lying open on

laboratory benches or were in containers that exposed their contents to

the casual observer. Moreover, the governmental intrusion in Walter

was not authorized by the consent of a third party who satisfied the

Gradowski requirements. Here, however, the DEA obtained the sam-

ples from individuals who had access to them and permission to

exercise that access. Accordingly, Walter does not require us to sup-

press this evidence.

App. 17

Il.

We have carefully considered the remainder of Buett-

ner-Janusch’s contentions and find them to be without

merit. This is one of those hard cases in which it is

difficult to explain the motives for criminal acts ruinous

of an otherwise distinguished career. We do not possess

the omniscience to supply the answer. The judgment of

conviction is affirmed.

App. 18

APPENDIX B

OPINION OF JUDGE BRIEANT (filed March

27, 1980)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-<—<(8 <<< ee ee ee eee ew ee ween ew ewe ee x

UNITED STATES OF AMERICA

age 79 Cr. 710-CLE

JOHN BUETTNER-JANUSCH, _ MEMORANDUM

* AND ORDER

Defendant.

ee ee ee x

Brieant, J.

Defendant, Dr. John Buettner-Janusch,

was indicted on October 3, 1979 and charged

with: (1) conspiracy to manufacture and dis-

tribute certain controlled substances [21

U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and

841 (b)(2)]; (2) actual manufacture and dis-

tribution of certain controlled substances

(21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) anc

841(b)(2), and 18 U.S.C. § 2]; (3) conspiracy

to obstruct a criminal investigation [18 U.S.C.

§§ 1503, 1510, 1001]; and (4) knowingly

making false statements to Government

App. 19

investigators [18 U.S.C. §1001]. By motion

filed October 29, 1979, defendant moves,

pursuant to Rule 12(b)(3), F.R.Crim.P., to

suppress certain physical evidence which the

Governmentobtained throught two searches and

seizures, without warrant and through a

private individual, who took the items seized

and turned them over to the Government.

Defendant also moves by sotion dated November

5, 1979, pursuant to Rule 12(b)(1), F.R.Crim.P.,

to suppress certain tape recordings of con-

versations that defendant had with third

parties during the Government's investigation

that led to defendant's indictment. Finally,

defendant moves, by motion docketed November

16, 1979, for an order either dismissing

the indictment pursuant to Rule 12(b),

F.R.Crim.P., or striking prejudicial sur-

plusage, pursuant to Rule 7(d), F.R.Crim.P.

An evidentiary hearing was held on

December 3, 12, 13 and 26, 1979, and January

sie

App. 20

3, 1980 to resolve disputed factual issues

on the motion to suppress physical evidenc:.

All the motions were fully submitted on

February 26, 1980.

Facts

Stated below are my findings of fact

on the evidentiary hearing, and certain

disputed facts presented in connection with

the motions to dismiss the indictment and

to suppress the tape recordings.

In 1973 Buettner-Janusch left Duke

University, where he had been a professor

of anthropology, to become the Chairman of

the Anthropology Department at New York

University ("NYU"). To enable Buettner-

Janusch to continue his research, and to

house the large amount of special equipment

that was involved in that research, NYU

redesigned a portion of the fourth floor

of Rufus Smith Hall, located at 25 Waverly

Place, New York City, as a physical anthro-

pology laboratory (the "new lab"). Adjoining

an

App. 21

this new lab is the existing laboratory

of NYU anthropology professor Clifford

Jolly (the "old lab"). Although the old

lab and the new lab are separated by a

masonry wall, an open doorway allows easy

access between them. Because the new lab

contains equipment that is not available

in the old lab, and presumably motivated

by professional courtesy, Buettner-Janusch

informed the NYU administration that he

would permit Professor Jolly to use "his"

laboratory, and the equipment. therein, and

there is evidence that Jolly did use the

new lab on those occasions when he required

access to the de-ionized water, the aspirator,

the gas line and the measuring scales, all

items found only in the new lab. In addition,

the physical layout of the fourth floor of

Rufus Smith Hall requires persons entering

Jolly's lab to pass through Buettner-Janusch's

lab, unless a rear freight elevator is used.

Thus, if an ordinary visitor enters Rufus

pa

App. 22

Smith Hall by the front door, and takes the

passenger elevator to the fourth floor,

that person will have to walk through the

new lab constructed for Buettner-Janusch

in order to reach the existing lab of Jolly.

The only alternative is to take the freight

elevator from the first floor, which opens

in the rear of the old lab. This elevator

is normally used only for freight and

requires an operator, but is occasionally

employed as a passenger elevator when the

regular front elevator is out of service.

This notwithstanding posted signs to the

contrary. The door on the fourth floor

which opens into the new lab and which also

provides access to Jolly's lab, was secured

by two locks prior to May 17, 1979. There

is some dispute over who had keys to those

locks, but it is conceded that Buettner-

Janusch, Jolly and Richard Macris, whose

=§e

App. 23

status as a laboratory assistant and NYU

graduate student is discussed below, all

had keys to unlock this door.

This new lab was the setting for the

first Government search, which occured on

May 12, 1979. In early February 1979,

Richard Macris, a NYU student and a

laboratory assistant who had been hired to

work for NYU in the new lab by Buettner-

Janusch in June 1977, became of certain

chemicals present in the new lab, believing

them to be controlled substances that were

being manufactured illegally. Macris related

these suspicions to Jolly, who advised him

to keep a diary of what he saw in the lab.

Jolly himself began taking samples of various

chemicals in the new laboratory, and stored

these samples in plastic tubes with labels

indicating the date of collection. From these

dates, it is apparent that Jolly collected

chemicals from the new lab on February 12,

18, March 7, 21, April 1, and 16, 1979.

elke

App. 24

In addition to these samples, Jolly collectec

other evidence of illegal activity during

March, April and early May. He found

marijuana seeds in a drawer in his lab,

gelatin capsules on top of that drawer,

and a trace of a substance alieged to be

LSD from the cold room in Buettner-Janusch's

lab. He also retrieved several scraps of

paper and an envelope from a garbage pail

in the new lab, and took a number of photo-

graphs of the suspicious containers and

experiments therein. The photographs were

turned over to the Government on May 16,

1979. The marijuana seeds and trace of

substance alleged to be LSD were turned

over to the Government on May 24, 1979.

During this time, on March 7th,

Richard Macris and Jolly met with Macris'

brother Robert, a practicing attorney in

New York, and told him of their suspicions

and that they had taken samples. Robert

Macris told them to continue their close

oe

App. 25

watch of the situation, and on March 26th,

Robert Macris met with Edward Boyle, a

cousin, who was also an attorney. Macris

told Boyle of the possibility that controlled

substances were being manufactured at the

NYU lab where Richard was working, and that

some samples of the substances had been

taken. On April 25th, after speaking to

Richard Macris the day before, Boyle called

the United States Attorney's Office for

the Eastern District of New York, and was

referred to Chief Assistant Bernard Fried,

with whom he was acquainted. Boyle told

Fried that he wanted to have a substance

tested by a reputable laboratory, that the

source of the substance would have to remain

undisclosed, and that he could offer no

explanation on the results of such a test.

Fried offered to have the samples tested on

a confidential basis at the Drug Enforcement

Agency ("DEA") laboratory, and Boyle, after

wie

App. 26

speaking with Robert Macris, accepted this

offer. On Friday evening, April 27th,

Robert Macris, delivered five samples that

he had received from Jolly, to Boyle, and

Boyle turned these over to Fried on May 2,

1979 in the presence of a DEA agent. Boyle

told Fried that a relative had collected

the samples from a university laboratory

where he worked, but did not disclose the

name of the relative, nor the name of the

university lab. Shortly before the samples

were turned over to the DEA for testing,

Richard Macris stopped attending classes

at NYU and at the suggestion of his brother

Robert, did not report for work at the lab.

He told Professor Buettner-Janusch that he

had contracted mononucleosis, and Buettner-

Janusch told him to return when he recovered.

He remained absent from work until June,

when he began working the old lab for Jolly.

-9-

App. 27

Approximately, two weeks later Fried

received an oral report from DEA that the

samples contained a controlled substance,

methaqualone. Fried then called Boyle and

told him the results of the test, but did

not insist that Boyle's relative go to the

proper authorities. He only cautioned Boyle

that the relative would have to be careful

if he did not report what he knew .2/

Furthermore, Fried did not request that

Boyle or his relative continue to collect

samples from the lab, or pursue any other

activity that might provide additional

evidence for the Government.

Boyle relayed the results of the tests

to Richard and Robert Macris, and they in

turn informed Jolly.

In the early afternoon of May 16, 1979,

a few days after receiving the test results,

the Macris brothers and Jolly met with the

then President of NYU, Dr. John Sawhill,

«ite

App. 28

and NYU's general counsel, Andrew Schaffer,

Esq. Richard Macris and Jolly related

their suspicions and described the events

‘that had occurred over the past three

months. Schaffer recommended that the

entire matter be referred to the federal

authorities. Robert Macris approved this

course of action after conferring with his

counsel, and with President Sawhill's

approval Schaffer called the United States

Attorney's Office for the Southern District

of New York. A meeting was scheduled for

that afternoon, and Schaffer accompanied

Richard and Robert Macris and Jolly to the

United States Attorney's Office for that

meeting. Richard Macris and Jolly presented

their information and evidence to an

Assistant United States Attorney and to a

DEA agent, Jack Toal, and informed them of

the prior participation of the United States

Attorney's Office for the Eastern District,

ati

App. 29

which had caused the DEA to test the samples

on a confidential basis. In addition,

Richard Macris turned over his diary of the

events that had occurred in the lab, and

Jolly turned over some samples collected

from the new lab, as well as a number of

photographs that he had taken in the

laboratory.

At that time, Schaffer suggested that

NYU could consent to a search of the labora-

tory by the Government, thereby obviating

the need for a search warrant, and stated

that he would consent to such a search.

However, he stated that he would have to

talk with President Sawhill before final

consent was given. When asked by the

Assistant U.S. Attorney, both Jolly and

Richard Macris agreed to go along and

assist the Government on a search of the

laboratory.

<2.

App. 30

Schaffer spoke with Sawhill on May

17th and received the President's approval

for a search of the new lab by the Government.

Schaffer then relayed this information to

the United States Attorney's Office for

the Southern District, and the search was

planned for that evening. */ That afternoon,

Jolly visited the new lab, and took

several more photographs.

At approximately 10 o'clock that

night, Jolly, Richard Macris, Robert

Macris and six DEA agents, including

Jack Toal, met outside Rufus Smitn Hall.

Toal and Jolly went up to the fourth

floor together to see if anyone was

present in the new lab, and found it to

be empty. There was no risk of inter-

ruption of the search by Buettner-

Janusch, who was known to be attending

a formal dinner that evening. Jolly

opened the door to the lab with his

keys, and the other agents and Richard

a

App. 31

Macris were brought up to commence the

search. Both Jolly and Richard Macris

assisted the agents, pointing out what they

considered to be suspicious, and the agents

seized a number of objects and chemicals

which are fully set forth in the stipulation

herein dated December 26, 1979. The items

seized were described as controlled sub-

stances, and are as follows: methaqualone

found within the fume hood (DEA Exs. 3-5);

marijuana found in the new lab cold room

(DEA Ex. 10); and lysergic acid hydrazide

found on a lab bench (DEA Ex. 16). Some of

the evidence was discovered in plain view,

lying out on the lab benches, and some was

behind closed cabinet doors and inside the

cold room and the freezer. As the search

was going on, either Robert or Richard

Macris suggested that the entry be disguised

as a burglary, so that Buettner-Janusch

would not suspect those with keys, including

thn

App. 32

Richard Macris and Jolly, when he found that

a number of items were missing or disturbed

in the new lab. Ome of the DEA agents,

using a tire iron found in the lab, accom-

plished this desired appearance by ripping

off the lock and frame of the laboratory

door.

Following the May 17th search, Jolly

continued his citizen's investigation,

apparently without the knowledge, permission

or request of the Government. He took more

photographs of the new lab during May, and

also taped a telephone conversation that he

had on May 20th with Buettner-Janusch.

Although Jolly met with DEA agent Toal on

May 25th, and turned over the marijuana

seeds and the trace of a substance alleged

to be LSD that he found in March, he did not

then inform Toal of his tape. Additionally,

Jolly taped a face-to-fact meeting on June

10, 1979 with Buettner-Jansuch and Danny

Cornyetz, a student and lab assistant.

-15-

App. 33

Richard Macris also taped conversations

that he had with Buettner-Janusch after the

May 17th search, but this was done under the

supervision of the Government. On May 23,

1979 Richard Macris taped a telephone con-

versation that he had with Buettner-Janusch,

and then met him later in Buettner-Janusch's

office wearing a Nagra recording device,

thereby obtaining a tape of their face-to-

face conversation. Macris wore and used this

Nagra device twice more, on June lst when he

met again with Buettner-Janusch, and on

June 5th when he met both with Buettner-

Janusch and fellow student Danny Cornyetz.

Finally, Macris telephone Buettner-Janusch

on June 8th and recorded that conversation.

Three other tapes were made during the

investigation, two by Danny Cornyetz after

he began to cooperate with the Government,

and one by laboratory assistant Lisa

-16-

App. 34

Forman. Cornyetz recorded telephone con-

versations that he had with Buettner-

Jansuch on June 27 and July 2, 1979, and

Forman recorded a telephone conversation

with Buettner-Janusch on an unspecified

date.

In addition to these tape recordings,

the Government began an official investi-

gation through a Grand Jury, and Buettner-

Janusch was subpoenaed to appear before this

Grand Jury on May 22, 1979. He appeared on

that date with an attorney, but his testimony

was adjourned until a later date. Defendant

then accompanied the Assistant U.S. Attorney

in chrge of the investigation to an office,

where, with is attorney present, he answered

questions asked by the Assistant. Buettner-

Janusch was questioned again by the Assistant

on June 14, 1979, and in the presence of

counsel he answered several questions.

alte

App. 35

On August 2, 1979 the Government also

searched, without a warrant, Busttiner-

Janusch's storeroom in the basement of

Rufus Smith Hall. This storeroom was an

8' by 4' area, surrounded by three walls

and a large building pillar that made up

the fourth wall. A gap between one of the

walls and the building pillar was closed

off by a floor-to-ceiling bookcase filled

with books, and the storeroom was thus

totally enclosed. The only door to the

room had a lock.

On July 17, 1979 Buettner-Janusch

called Dr. Anna Marie Cantwell, a research

associate in anthropology at NYU and asked

her to have several locks in the anthropology

department changed, including the lock to

the basement storage room used by him. The

reason given by Buettner-Janusch for this

request was that he discovered a student

making drugs in the new lab, and that he

ath.

App. 36

was afraid that the student would try to

"frame" him. According to Dr. Cantwell,

Buettner-Janusch did not trust anyone else

to supervise the changing of the locks .2/

Dr. Cantwell arranged for a locksmith

not affiliated with NYU to change the locks

on June 19th, and on that date she took the

locksmith down to the basement by the freight

elevator to install a new lock on the store-

room door. Professor Jolly asked to come

along to supervise, and Richard Macris was

also present While the locksmith changed

the lock to Buettner-Janusch's storeroom,

Jolly memorized the serial number on the new

Medeco lock that was being installed. +/

Later that day, Jolly went to a different

locksmith, and obtained a duplicate key to

the lock by using the serial number which

he had observed while the new lock was being

installed. Therefore, although Dr. Cantwell

had been instructed by defendant to hold the

new keys to the storage room until his

-19-

App. 37

return, and to give these keys to no one,

Jolly had a key to the new lock on the

very day it was installed. Neither

Cantwell nor the Government knew in

advance of Jolly's plan to secure this

key.

After obtaining the duplicate key,

Jolly went down to the storage room and

inspected it himself, finding a few chemicals

and bottles of gelatin capsules. Some of

these items were in cartons, but Jolly

testified that he did not open any sealed

cartons during this search. When he con-

cluded this inspection, he reported to the

United States Attorney's Office for the

Southern District of New York that he had

a key to the storeroom and that he had

entered and searched that room. Some time

later, Jolly spoke with DEA Agent Toal and

gave him the key.

=-20-

App. 38

At the end of July, the United States

Attorney's Office for the Southern District

called General Counsel Schaffer of NYU and

asked him for consent to enter and search

the basement storage room assigned to

Buettner-Janusch. Schaffer gave this

consent for the University and on August

2, 1979 DEA agents Toal and Petrucci,

accompanied by Richard Macris, opened

the storeroom door with Jolly's key and

seized several cartons of incriminating

substances.

The Indictment Motions

Defendant moves first to dismiss

the indictment in this case pursuant to

Rule 12(b)(1), F.R.Crim.P., because of the

prosecution's alleged abuse of the Grand

Jury proceedings. In the alternative,

defendant moves to have certain alleged

prejudicial surplusage stricken from the

indictment pursuant to Rule 7(d), F.R.Crim.

sie

App. 39

P. and also to have Count 6 stricken from

the indictment pursuant to Rule 12(b)(1),

F.R.Crim. P. on the grounds that it is

duplicitious.

Defendant cites three examples of

Grand Jury abuse by the prosecution. First,

he claims that the Government suppressed

exculpatory evidence favorable to the defense.

Specifically, defendant contends that the

prosecution failed to provide the Grand Jury

with two letters from fellow scientists

attesting to Buettner-Janusch's character

and explaining his research, as well as

testimony from one of his former assistants

that Buettner-Janusch spent little time in

the laboratory, and was involved more in

administrative duties. On the other hand,

the Government claims that it did introduce

some evidence in the Grand Jury proceedings

that was favorable to the defense.

=22-

App. 40

The Court of Appeals has recognized

that "a prosecutor is not presently obli-

gated to search for and submit to a grand

jury evidence favorable to the defense or

negating guilt, when it has not been requested

by the grand juyr." United States v.

Ciambrone, 601 F.2d 616, 622 (2d Cir. 1979).

However, “where a prosecutor is aware of any

substantial evidence negating guilt he should,

in the interest of justice, make it known to

the grand jury, at least where it might

reasonably be expected to lead the grand

jury not to indict." Id., at 623.

Applying these rules to the case before

us, I conclude that the letters from the

two scientists and the testimony of

Buettner-Janusch': former assistant were

not substantial evidence that "might

reasonably be expected to lead the grand

jury not to indict." Id. This is the sort

of crime which could only be committed by

-23-

App. 41

an academic of good character and reputa-

tion; who else would be entrusted with

control of the laboratory in a leading

University?

Although the letters provide some

explanation for Buettner-Janusch's pos-

session of chemicals in general, they are

not specific, and any evidence of good

character that they contain is at most a

matter for the trial jury where the standard

of proof is higher than that required to

indict. The testimony of Buettner-Janusch's

former assistant may show that defendant was

not in the lab every day, but it does not

negate the Government's theory that Buettner-

Janusch was the head of a conspiracy to

manufacture and distribute certain controlled

substances using NYU personnel and facilities.

Defendant also contends that the prose-

cution "mistreated" two witnesses, Martin

Marion and Bruce Greenfield, who offered

-24-

App. 42

exculpatory testimony. The Government

allegedly threatened to prosecute Marion,

an honorary research associate in anthro-

pology at NYU, if he persisted in his

story. In addition, Bruce Greenfield

allegedly tried to make a favorable

statement to the Government, but the

Assistant refused to listen to him. None

of this "mistreatment" is claimed to have

occurred in the presence of the Grand Jury.

The prosecution neither admits nor denies

these allegations, but argues that the

Grand Jury was unaffected in any event.

Even if we assume that the prosecu-

tion threatened Marion with prosecution,

and refused to listen to Greenfield, it is

difficult to perceive how defendant's

right to an unbiased Grand Jury was affected

thereby. See, United States v. Bruzgo, 373

F.2d 383 (3d Cir. 1967). These charges, even

if true, do not justify dismissal of the

indictment.

-25-

App. 43

Finally, defendant claims that the

indictment should be dismissed because the

Government acted improperly with respect

to certain telephone company records.

Defendant alleges that when the United

States Attorney's Office subpoenaed the

toll records of Bruce Greenfield, Selma

Greenfield (Bruce's mother) and Martin

Marion from the telephone company for the

Grand Jury proceedings, notice to the

customers of such a subpoena was deferred

for ninety days at the request of the

Government. Defendant argues that this is

a violation of Rule 6(e), F.R.Crim.P., and

an unlawful interference with defense

counsel's access to the telephone company

as a witness. Defendant admits that he

received these toll records from the

Government in the course of pre-trial

discovery. Defendant must have known

that the telephone company records were

-26-

App. 44

potential exhibits, and there is no alle-

gation that the prosecution prohibited de-

fense counsel from speaking with respresent-

atives of that company about the records.

The only persons who appear possibly to have

been prejudiced are the Greenfields and

Martin Marion. Defendant lacks standing to

assert their claims. I decline to dismiss

the indictment because of the prosecution's

request made of the telephone company.

In the alternative, defendant seeks

to strike certain alleged prejudicial sur-

plusage from the indictment, pursuant to

Rule 7(d), F.R.Crim.P. For example, de-

fendant wishes to exclude claimed "inflam-

matory language" such as the word "drug,"

which appears before the words "controlled

substance" a number of times through the

indictment. Defendant also claims that

“prejudicial factual allegations" should

be stricken. An example of these preju-

dicial allegations occurs in 4 6(a), 7

=27-

App. 45

(2) and 7(4) of Count One, where the

indictment alleges that Buettner-Janusch's

possession of a book and articles relating

to the synthesis of LSD is an overt act in

furtherance of the conspiracy to manufac-

ture and distribute controlled substances.

A motion to strike prejudicial sur-

plusage pursuant to Rule 7(d) "will be

granted only where it is clear that the

allegation[s] complained of [are] not

relevant to the charge contained in the

indictment and [are] inflammatory and

prejudicial." United States v. Klein,

124 F.Supp. 476, 479-80 (S.D.N.Y. 1954),

aff'd. 247 F.2d 908 (2d Cir. 1957), cert.

denied 355 U.S. 924 (1958); United States

v. DePalma, 461 F.Supp. 778 (S.D.N.Y.

1978). This is an exacting standard,

and alleged surplusage is seldom stricken.

United States v. DePalma, supra at 797.

After a careful reading of the indictment,

=28-

App. 46

I conclude that the language of the in-

dictment is neither inflammatory nor

prejudicial. The Court has already

ruled orally that the reference "also

known as B-J" shall be stricken wherever

it appears in the pleading. This is un-

necessary prejudicial verbiage. The

remainder of the allegations complained

of are or may be relevant to the charges.

Therefore, defendant's motion to strike

must be and it is denied.

Defendant's final argument with

respect to the indictment urges that the

fourteen violations of 18 U.S.C. §1001

alleged in Count Six render this Count

duplicitous. He contends that the Count

must be stricken or reduced to one alleged

violation. Specifically, Count Six charges

Buettner-Janusch with making a number of

false statements to the United States

Attorney's Office, and defendant contends

-29-

App. 47

that this violates Rule 8(a), F.R.Crim.P.,

as well as his rights under the Fifth

and Sixth Amendments to the United States

Constitution. On the other hand, the

Government contends that the false state-

ments made by Buettner-Janusch constituted

a continuing course of conduct that amounts

to one offense.

"An indictment is invalidly duplicit-

ous when it joins a single count two or

more distinct, separate offenses."" United

States v. Droms, 566 F.2d 361, 363 (2d Cir.

1977). However, although an indictment

may not charge multiple offenses in a

single count, the "charging of multiple

means constituting a single and continuing

offense [is allowed], even if the com-

ponents of that single offense may other-

wise be treated as separate offenses."

United States v. Kearney, 451 F.Supp. 33,

36 (S.D.N.Y¥. 1978). The alleged false

=30-

App. 48

statements made by Buettner-Janusch to the

United States Attornye's Office appear to

be "multiple means constituting a single

and continuing offense" referred to above.

The answers that are alleged to be false

were given in response to only four or

five principal questions, and all the

questions deal with Buettner-Janusch's

conversations with three individuals. A

false answer regarding one of the questions

would contemplate in the name of consistency

additional false answers in response to

similar questions. The statute, by its

terms, 18 U.S.C. §1001, contemplates the

making of false statements. This wording

justifies the inference that a series of

false statements concerning a single fact

or event would constitute a single crime.

I conclude that Count Six is not dupli-

citous, and there is no need to separate

the false statements. At trial the jury

Sis

App. 49

will be instructed on request that in

order to convict they must be unanimous

as to the wilful falsity of at least one

of the claimed statements and all must

agree as to the same statement.

Defendant's Motion to Suppress Tape

Recordings.

Defendant also moves, pursuant to

Rule 12(b)(3), F.R.Crim.P., to suppress

seven tape recordings. These tapes include

five conversations between Richard Macris

and Buettner-Janusch, dated May 23, June l,

5 and 8, 1979, and two conversations between

Cornyetz and Buettner-Janusch dated June 27

and July 2, 1979. Apparently, defendant

does not challenge the two tapes, recorded

by Jolly, dated May 20 and June 10, 1979,

of conversations between himself and

Buettner-Janusch. In addition, the Govern-

ment asserts that it does not intend to

offer at trial on its main case, the tapes

made by Lisa Forman of conversations with

Buettner-Janusch.

=32-

App. 50

There are several arguments raised

by defendant in support of his motion to

suppress. First, defendant claims that

surreptitious tape recordings of his

conversations by persons who were, "in

effect,"’ Government agents amounted to

interrogation in the absence of counsel in

violation of the Sixth Amendment. The

Government replies, quite correctly, that

defendant's Sixth Amendment right to

counsel does not attach until the "initiation

of adversary criminal proceedings [against

the defendant] - whether by way of formal

charges, preliminary hearing, indictment,

information, or arraignment." Kirby v.

Illinois, 406 U.S. 682, 689 (1972). Accord,

Brewer v. Williams, 430 U.S. 387 (1974).

Because the tape recordings were made in

this case before the initiation of any

adversary criminal proceedings, the

presence or waiver of counsel during those

o$3e

App. 51

recordings was not required by the Sixth

Amendment. The first contention of

defendant must be rejected. See, Massiah

v. United States, 377 U.S. 201 (1964);

United States v. Knohl, 379 F.2d 427 (2d

Cir.), cert. denied 389 U.S. 973 (1967).

Defendant's second argument in favor

of suppression attempts to circumvent the

Kirby rule set forth above by claiming a

violation of defendant's Fifth Amendment

rights. His argument appears to be as

follows: The Government knew on May 22,

1979 that defendant was represented by

counsel, because he appeared at the Grand

Jury proceedings on that day accompanied

by an attorney. Although no adversary

criminal proceedings had been initiated

against him at that time, defendant con-

tends that once an attorney entered the

situation with respect to Buettner-Janusch,

the Government could not interrogate him

-34-

App. 52

either directly or indirectly. Thus, the

Government's use of agents to interrogate

Buettner-Janusch, by secretly taping con-

versations with him, without an attorney

present, is claimed to violate defendant's

right against self-incrimination. See

United States v. Wedra, 343 F.Supp. 1183

(S.D.N.Y. 1972); People v. Arthur, 22 N.Y.

2d 325, 292 N.Y.S.2d 661 (1968).

The Government counters this claim

with two arguments. First, the prosecution

contends that its knowledge that a target

had obtained counsel does not afford him

thereafter with a special privilege to have

counsel present at all conversations with

undercover Government agents, prior in

time to initiation of adversary criminal

proceedings. Further, the Government

alleges that the Fifth Amendment right

against self-incrimination is inapplicable

here, as the conversations were not

«$5-

App. 53

“custodial interrogations" containing

elements of potential coercion or compulsion.

I conclude that the Government's taping

of conversations between Buettner-Janusch,

Macris and Cornyetz, without defendant's

lawyer present, was not a violation of

Buettner-Janusch's right against self-in-

crimination. At the time these tapes were

made, defendant was not in custody, Escobedo

v. Lllinois, 378 U.S. 478 (1964), and there

is no evidence of coercion on the part of

the Government in obtaining the statements.

Hoffa v. United States, 385 U.S. 293 (1966).

Without any indicia that the statements by

defendant were compelled, there is no need

to hold that the presence of counsel was

necessary to protect defendant's right

against self-incrimination. See, Hoffa v.

United States, supra; United States v. Craig,

573 F.2d 455, n.14 (7th Cir. 1977), cert.

denied 439 U.S. 820 (1978); United States

atiie

App. 54

v. Lemonakis, 485 F.2d 941, 954, n.20 (D.C.

Cir. 1973), cert. denied, 415 U.S. 989

(1974). United States v. Wedra, supra,

relied on by defendant, is distinguishable

because the defendant in that case had been

indicted, arrested and was in custody when

he was interrogated without his attorney,

the police knowing that he was represented

by counsel. The potential for coercion or

unfairness in such a case is far greater

than in the one at bar.

The third argument advanced by

defendant in support of suppression of the

tapes is that the Government's actions

violated the ABA Code of Professional

Responsibility. Specifically, defendant

alleges that the tape recording of

Buettner-Janusch's conversations was, in

effect, an interrogation of defendant by

agents of the attorneys for the prosecution

a8

App. 55

without the presence or consent of defendant's

attorney, who has known to have been retained

with respect to the matter. Disciplinary Rule

7-104(A) (1), states:

"During the course of his

representation of a client

a lawyer shall not:

Communicate or cause

another to communicate on the

subject of the representation

with a party he knows to be

represented by a lawyer in that

matter unless he has the prior

consent of the lawyer represent-

ing such other party or is

authorized by law to do so."

The cases cited by defendant, see, e.g.,

United States v. Thomas, 474 F.2d 110 (10th

Cir.), cert. denied, 412 U.S. 932 (1973);

United States v. Wedra, supra, involved

actual custodial interrogation by prosecution

attorneys after an arrest. The scenario

involved in this case is more like the facts

in United States v. Lemonakis, supra, relied

on by the Government. In Lemonakis , the

=$8~

App. 56

Court of Appeals for the District of Columbia

held that the communication proscribed by

Discoplinary Rule 7-104(A)(1) does not

include the "initiation and recording of

conversations" between a Government in-

formant and a defendant. Id., at 955.

Accordingly, I conclude that the prosecuting

attorneys in this case did not violate

Canon 7 of the ABA Code of Professional

Responsibility, and if they did, it should

not provide a basis for terminating a

criminal prosecution on grounds unrelated

to guilt or innocence.

Defendant's fourth contention is that

because he reasonably believed a joint

defense was being conducted, which included

co-conspirators Richard Macris and Cornyetz,

his statements to them summarizing legal

advice he had received should be protected

by the attorney-client privilege. However,

"it is vital to the claim of privilege that

<%e

App. 57

the communications between client and

attorney were made in confidence and have

been maintained in confidence." In re

Horowitz, 482 F.2d 72, 81-82 (2d Cir.),

cert. denied, 414 U.S. 867 (1973). I find

that Buettner-Jansuch waived the attorney-

client privilege when he disclosed such

otherwise privileged communications to

Macris and Cornyetz. The fact that a joint

defense was contemplated is of no consequence.

A similar claim is raised by defendant

regarding the Government's interference with

his attorney-client relationship. Defendant

contends that the prosecution "sent a spy

into the defense camp" by including or

allowing Macris and Cornyetz to tape con-

versations with Buettner-Janusch, which

included some discussion of defenses and

strategy, and thereby deprived defendant

of his Sixth Amendment right to counsel.

-40-

App. 58

In United States v, Dien, 609 F.2d

1038 (2d Cir. 1979), the Court of Appeals

for the Second Circuit stated:

"In Weatherford v. Bursey,

[429 U.S. 545 (1977)] the

Supreme Court held that to

establish a Sixth Amendment

violation where an informant

sat in on defense strategy

sessions defendants were

required to establish that

privileged information had

been passed to the government

or that the government had

intentionally invaded the

attorney-client relationship,

and resulting prejudice."

Id., at p. 1043. Because defendant in the

instant case is claiming that Macris and

Cornyetz were participants in the defense

strategy and privy to confidential informa-

tion, he must meet the standard set forth

in Weatherford and Dien. This he has failed

to do. The information given by Buettner-

Janusch in the taped conversations was

certainly passed along to the Government,

but there is no credible evidence to show

wht

App. 59

that the Government intentionally invaded

the attorney-client relationship. The

conversations recorded were not between

Buettner-Janusch and his attorney, but

between Buettner-Janusch and his students

and alleged former co-conspirators. It

seems clear that the purpose of recording

defendant's statements was not to discover

trial strategy, but rather to aid in the

investigation. Defendant has demonstrated

no prejudice, as the comments by Buettner-

Janusch concerning his attorney's advice

were very general, trite and insignificant .2/

Therefore, I conclude that defendant was no-

deprived of his Sixth Amendment right to

counsel when the information on the tapes

was passed on to the Government.

Finally, defendant claims that the

Government should have obtained a warrant

to tape these conversations, because the

consent by Macris and Cornyetz, which would

obits

App. 60

permit secret recordings under 18 U.S.C.

§2511(2)(c) was coerced by the Government.

The Government must prove that such consent

was given, but this standard of proof is

far less stringent than that required to

show consent to a physical search. United

States v. Bonanno, 487 F.2d 654 (2d Cir.

1973). In this case, the Government has

met the necessary standard, and defendant's

claim on this point must be denied. See,

United States v. Fuentes, 563 F.2d 527

(2d Cir.), cert. denied, 434 U.S. 959 (1977).

Defendant's Motion to Suppress Physical

Evidence

Defendant's final motion, pursuant to

Rules 12(b)(3) and 4l1(e)(1), F.R.Crim.P.,

seeks to suppress all the evidence seized

(1) from the new laboratory during the search

on May 17, 1979; (2) from the basement

storage room during the search on August 2,

1979; (3) by Professor Jolly from the old

~-43-

App. 61

and new laboratories prior to May 17, 1979;

and (4) any photographs taken in the labora-

tories by Jolly prior to the night of May 1/7,

1979. Because the first two searches and

seizures raise similar issues, they will be

considered together, and the search and

seizure by Jolly will be considered last.

The Search of the Laboratory and Storage

Room

Defendant's argument that the warrant-

less searches of the new lab and the storage

room were unconstitutional is as follows:

He contends that he had a reasonable expec-

tation of privacy in both areas, and that

the Fourth Amendment proscription against

unreasonable searches applies in this case.

He further contends that warrantless

searches of the new lab and storeroom are

prima facie invalid, and that the Government

must prove an exception to the warrant

requirement and exigent circumstances in

bbe

App. 62

order to justify its search of these pro-

tected areas. Defendant claims that the

Government has filed to prove either an

exception or exigent circumstances, and

that the Government's searches must be

declared unlawful, and the evidence

seized must be suppressed,

The Government has not argued that

Buettner-Janusch had no reasonable expec-

tation of privacy in his laboratory and

storage room, although the Court regards

the situation of the laboratory as

differing from that of the storage room.

The Government relies on third party

consent to the searches, given by the

President and General Counsel of NYU, and

also by Richard Macris and/or Professor

Jolly.

The Supreme Court has stated many

times that, under the Fourth Amendment to

iia

App. 63

the United States Constitution, a search

by the Government without a properly issued

search warrant is "per se unreasonable ...

subject only to a few specifically estab-

lished and well delineated exceptions."

Katz v. United States, 389 U.S. 347, 357

(1967); see, e.g., Schneckloth v. Bustamonte,

412 U.S. 218 (1973); Coolidge v. New

Hampshire, 403 U.S. 443 (1971). A well

recognized exception to this requirement

of a properly issued warrant is a search

conducted pursuant to consent. Schneckloth

v. Bustamonte, supra, at 219. But "[w]Jhen

a prosecutor seeks to rely upon consent

to justify the lawfulness of a search, he

has the burden of proving that consent was,

in fact, freely and voluntarily given."

Bumper v. North Carolina, 391 U.S. 543, 548

(1968); United States v. Bracer, 342 F.2d

522 (2d Cir.), cert. denied, 382 U.S. 954

(1965).

aitiie

App. 64

Defendant argues that the prosecution

has the burden of proving not only consent,

but exigent circumstances as well, in order

to validate the searches at issue here. In

support of this theory, defendant relies on

Supreme Court's language that "a warrantless

search must be strictly circumscribed by

the exigencies which justify its initiation."

Mincey v. Arizona, 437 U.S. 385, 393 (1978),

citing Terry v. Ohio, 392 U.S. 1 (1968).

Defendant concludes that because the Govern-

ment knew of the unlawful substances in the

new lab and the storage room long befvore the

searches actually took place, and because

there was no immediate threat that the

evidence might be destroyed or removed,

there was no reason for the warrant

requirement to be disregarded in this

case. I do not agree. Although exigent

circumstances must be present to justify

art

App. 65

certain warrantless searches, see e.g.,

Arkansas v. Sanders, 99 S.Ct. 2586 (1979);

Coolidge v. New Hampshire, supra, any

mention of exigency is noticeably absent

from the recent Supreme Court decisions

concerning consent searches. See, United

States v. Matlock, 415 U.S. 164 (1974);

Schneckloth v. Bustamonte, 412 U.S. 218

(1973); Frazier v. Cupp, 394 U.S. 731

(1969). Therefore, I conclude that the

prosecution need only prove consent, and

not exigent circumstances, to justify the

two searches in dispute here. See, Ringel,

Searches and Seizures, Arrests and

Convictions, § 9.1 (2d Ed. 1979).

In order to determine whether valid

consent was given in this case, a brief

review of the legal principles involved is

necessary. Our discussion begins with

United States v. Matlock, 415 U.S. 164

-48-

App. 66

(1974). In Matlock, the Supreme Court held

that a person other than the defendant could

consent to a search of an area in which the

defendant had a reasonable expectation of

privacy, and that this consent would validate

a search without a warrant. However, for

such "third party consent", to be effective,

the prosecution must show

"that permission to search

was obtained from a third

party who possessed common

authority over or other

sufficient relationship

to the premises or effects

sought to be inspected."

In footnote 7, the Court defined common

authority:

"Common authority is, of

course, not to be implied

from the mere property

interest a third party has

in the property. The

authority which justifies

the third-party consent

does not rest upon the law

of property, with its

attendant historical and

legal refinements, see

Chapman v. United States,

365 U.S. 610 (1961) (landlord

-49-

App. 67

could not validly consent

to the search of a house

he had rented to another),

Stoner v. California, 376

. 83 (1964) (night hotel

clerk could not validly con-

sent to search of customer's

room) but rests rather on

mutual use of the property

by persons generally having

joint access or control for

most purposes, so that it is

reasonable to recognize that

any of the co-inhabitants has

the right to permit the in-

spection in his own right and

that the others have assumed

the risk that one of their

number might permit the

common area to be searched."

The Supreme Court's foundation for

this rule is not that the third party is

able to waive the defendant's Fourth

Amendment rights. Rather, this principle

developed by the Supreme Court recognizes

that the third party could permit the

warrantless search of the premises or

effects sought to be inspected in his

own right, and the defendant is thought

to have assumed the risk that this third

-50-

App. 68

party might permit such a search. See,

LaFave, Search and Seizure; A Treatise

on the Fourth Amendment, § 8.3 (1978);

Wefing and Miles, Consent Searches and

the Fourth Amendment: Voluntariness and

Third Party Problem, 5 Seton Hall L. Rev.

211 (1974).

Our Court of Appeals has interpreted

this holding in Matlock in several cases,

and the "clearly established rule" is that

"consent to a search by

one with access to the

area searched, and either

common authority over it,

a substantial interest in

it or permission to exercise

that access, express or

implied, alone validates the

search."

United States v. Gradowski, 502 F.2d 563,

564 (2d Cir. 1974); United States v. Pravato,

505 F.2d 703 (2d Cir. 1974); United States

v. Jenkins, 496 F.2d 57 (2d Cir. 1974),

cert. denied, 420 U.S. 925 (1975).

Sis

App. 69

Defendant contends at length that the

test developed by the Second Circuit is far

to broad, and not in accordance with Matlock,

Presumably, the defense regards "express or

implied permission" to enjoy access eas an

extension of the definition of "common

authority" provided in footnote 7 of

Matlock. However, this argument carries

no weight at the trial court level. The

mischief caused by the exclusionary rule

justifies this Court in strict adherence

to decided Second Circuit cases on the

subject.

I conclude that the Government need

only prove by a preponderance of the

credible evidence that the President of

NYU directly or through his subordinates,

or Richard Macris, or Professor Jolly (1)

has access to the new lab and the storage

room; and (2) also had common authority

over the areas, a substantial interest

=

App. 70

in them, or express or implied permission

to exercise the access, and allow others to

do so. For the sake of clarity, we will

discuss this test first with respect to the

new lab, and thereafter consider access to

the storage room in the basement.

Although I reject for obvious reasons

the Government's theory that the privilege

or ability of NYU as owner to break down

its own door to the new lab constituted

access, I find on the basis of the evidence

adduced at the hearing that NYU officials

did have access to the new lab, a fact

which must have been known to defendant . °/

Both the Director of Maintenance at

NYU and the Building Manager testified, and

I find that to the best of their knowledge,

they had keys to the new lab on May 17th.

There was also testimony that it was NYU's

policy to have keys to all NYU facilities,

including the new lab. 2/ The possession

=$3-

App. 71

of these keys certainly constitutes access

under the Second Circuit's test. See

United States v. Gradowski, supra; United

States v. Gargiso, 456 F.2d 584 (2d Cir.

1972). It is clear that the freight

elevator opened into the labs without the

necessity of any key except that needed to

operate the car. This elevator served the

entire building for freight. It carried

an operator, and such additional persons

necessary to accompany and handle freight.

When the automated passenger elevators were

not operating, it also carried passengers.

Through his non-academic subordinates

President Sawhill had control of the freight

elevator, and access thereto, and to all

areas opening therefrom without other doors

or closures. This includes the new lab.

Defendant claims that the locks on

the fourth floor were in fact changed in

«iin

App. 72

November and December 1975 in response to

unrelated thefts of property from the labs,

and that the "administration" was never

given a copy of the new keys. In support

of this argument, the defense has submitted

reports issued by the NYU Department of

Protection, which indicate that the

security officers patrolling Rufus Smith

Hall were unable to obtain a key to certain

doors in that building on three occasions.

(Ex. W). However, these reports carry

little weight, as the first two are dated

before the locks allegedly were changed,

and the third report shows merely that the

guards did not have a key to room 401 which

is an office at the opposite end of the

hall from the laboratory door,

Defendant also argues that certain

memoranda from Vice President John O'Mara

(Ex. 15) suggest that NYU did not have keys

ol

-55-

App. 73

to all the rooms at NYU, and that NYU's

"policy" was not always enforced. How-

ever, the areas referred to in these

memoranda do not include the new lab.

Finally, defendant contends that the

testimony and a letter dated July 26,

1979 (Ex. 16) from Gene Coe, the Assistant

Building Manager, also indicates that NYU

did not have keys to the locks in Rufus

Smith Hall, which housed the new lab, in

late July, 1979. Again, this evidence

does not prove that NYU did not have the

keys on May 17th, as it asserts.

Even if we assume that NYU did not

have the keys to the new lab, it always

had access to the new lab through the old

lab, connected by a doorway having no door,

and in turn entered by means of the freight

elevator. This elevator was utilized by

the NYU maintenance and security forces.

«Se

App. 74

As noted above, this elevator also was

occasionally used as a passenger elevator.

Accordingly, I find that the NYU officials

who gave consent for the search of the new

lab had access to that lab through the

freight elevator.

The next issue, after finding access,

is whether NYU President John Sawhill and

General Counsel Andrew Schaffer had common

authority over the new lab, a substantial

interest therein, or express or implied

permission to exercise their access into

the lab. The Government contends that NYU

had common authority over, and a substantial

interest in, the new lab because the

University owned the premises, assigned

space therein to faculty members, and had

an interest in protecting the students

from any dangerous activity in the

laboratory. The Government also claims

oR?

App. 75

that NYU permitted Buettner-Janusch to use

the premises on the implied condition that

he allow the University unrestricted

access, and thus there was permission to

enter the new lab.

The fact that NYU owned the building

housing the new lab, with certain rights

and duties therein, does not amount to

common authority under footnote 7 of

Matlock. There, the Supreme Court stated

that "[t]he authority which justifies the

third-party consent does not rest on the

law of property, with its attendant

historical and legal refinements." United

States v. Matlock, supra, at 171 n.7, citing

Chapman v. United States, 376 U.S. 610

(1961) (landlord lacked power to consent to

the search of a house he had rented to

another). In this case, the laboratory

was built especially for Buettner-Janusch's

-58-

App. 76

professional activities and assigned to him.

There was no "mutual use" of the property

by any non-academic NYU officials or

personnel. The cleaning staff was allowed

to enter only by appointment, and the fact

that maintenance and security forces were

allowed to enter for specifically defined

duties does not demonstrate mutual use.

See Stoner v. California, 376 U.S. 483

(1964).

The Government also produced several

University regulations that purported to

show NYU's common authority over, or a

substantial interest in, all premises in-

cluding the new lab. (Ex. 1). It seems

clear that accepting faculty tenure subject

to these regulations cannot be construed

as a waiver by defendant of his Fourth

Amendment rights. However, the principle

of third-party consent is not based on

waiver. There is recognized authority

-59-

App. 77

to the effect that while a university has

the right to enter a room assigned to a

student in furtherance of educational

objectives or in case of emergencies,

this right does not extend, by means of

such university regulations, to warrant-

less searches for evidence of a crime.

See, e.g., Piazzola v. Watkins, 442 F.2d

284 (Sth Cir. 1971); Smyth v. Lubbers,

398 F.Supp. 777 (W.D. Mich. 1975).

Finally, the Goverment raises the

argument that Buettner-Janusch gave the

University express or implied permission

to exercise access into the lab. There

was no proof that Buettner-Janusch took

occupancy under an express condition

reserving to the University administrative

authorities the right to exercise any

possessory authority or access with respect

to the new lab. They were not exercising

-60-

App. 78

such access on any regular basis, That

they would have done os in event of fire,

flood or other emergency is of no relevance.

The landlord of a rented apartment would

do no less.

Therefore, I conclude that NYU had

access, but did not have common authority

over the new lab, a substantial interest

therein, or permission to exercise that

access into the lab.

The Government's second contention

was. that Richard Macris, Buettner-Janusch's

lab assistant and NYU student, had access,

common authority, and express or implied

permission. Macris clerly had access to

the new lab for the first six months of

1979, as he had keys to the door with the

knowledge of Buettner-Janusch. See,

United States v. Gradowski, supra. Also,

the fact that he was an employee of NYU

ofits

App. 79

in the lab does not necessarily preclude

a finding of common authority. United

States v. Murphy, 506 F/2d 529 (9th Cir.

1974), cert. denied, 420 U.S. 996 (.975);

United States v. Sells, 496 F.2d 912

(7th Cir. 1974). However, defendant

contends that because Macris did not

receive wages for his work in the lab

after December, 1978, and his personnel

record shows termination on that date,

he cannot be considered an employee on

May 17, 1979. Also, Macris concedes

that he stopped reporting to the lab on

April 20, 1979 under a feigned claim of

illness, and did not return until sometime

in June, when he began working as an

assistant to Jolly. Defendant asserts

that the logical conclusion to be drawn

from this evidence is that Macris did not

have "mutual use," and thus common authority,

over the new lab on May 17, 1979.

-62-

App. 80

The Government offered some evidence

at the hearing that Macris was still an

employee for the first six months of 1979

because he received tuition remission for

his owrk in the lab, and because Buettner-

Janusch told Macris in February, 1979 that

he would resume receiving wages for his

work in the lab retroactively, as soon as

some budgetary problems were resolved. In

addition, the Government contends that while

Macris stopped coming to work on after

April 20, 1979, Buettner-Janusch told him

to return whenever he "recovered" from his

feigned illness, and fully expected him to

return.

I conclude from this evidence that

Richard Macris was so employed in the lab

with defendant's knowledge and had common

authority over the new lab on May 17, 1979,

the date of the search. Paraphrasing the

-63-

App. 81

Matlock test set forth in footnote 7, I

find that it is reasonable to recognize

that Macris had the right to permit in-

spection of the new lab in his own right

and that defendant assumed the risk that

Macris might permit the common area to be

searched. Even though Macris was not then

receiving wages for his work in the new

lab, it seems clear that he was told that

funds would be forthcoming, and he con-

tinued to work for the University under

Buettner-Janusch in the new lab until

April. Although Macris was absent for

approximately four weeks before the search,

this was considered by defendant to be a

temporary leave, as Macris had been invited

to returned when he recovered.

Even if common authority were not

present, I find that Macris had express

or implied authority to exercise his access

-64-

App. 82

to the lab, and thus could have consented

to a search in any event. Although Macris

stopped coming to the lab on April 20,

1979, he was told by defendant that he

should return whenever his "health" per-

mitted, and this surely gave permission to

enter the new lab at any time in the

future.

Defendant further argues ¢ iat Macris

did not actually give consent to the

search, but only went along on May 17th

because he was asked to do so by the

Government. I find that Macris' conduct

implied consent even though the precise

words of authorization may not have been

spoken. See, United States v. Candella,

469 F.2d 173 (2d Cir. 1973). In sum, I

find that Macris' consent is an indepen-

dently valid basis for the May 17th

search.

-65-

App. 83

The Government also claims that Jolly

had common authority over the new lab, or

at least express permission to use that

laboratory, and that he too gave valid

consent to the search. It is certainly

true that Jolly had access to the new lab,

since he had keys to the door at all times.

On the issue of common aut*ority or per-

mission, the prosecution offered an un-

signed memorandum to Dean Stuart of NYU

which spoke of the floor plans for the

new lab and stated that Jolly could use

the new facilities as well (Ex. 4). I

have no doubt that this memo was written

contemporaneously with the new construction

by Buettner-Janusch, and infer from it

that defendant permitted Jolly to share

his laboratory facilities. Also, there

was testimony at the hearing that Jolly

did use Buettner-Janusch's lab on occasion,

-66-

App. 84

and that defendant never objected to this.

It is hard to imagine that such an objection

would be raised, because the two labs were

adjacent to each other, connected by an

open doorway, and defendant's lab contained

facilities not available to Jolly in the

old lab. Therefore, I find that even if

Jolly's use of the new lab did not rise

to the level of common authority, he

certainly had permission, express or

implied, to enter the new lab and use the

facilities therein. I also conclude that

Jolly's offer to accompany the Government

on the May 17th search, and his actions

that oventinn such as opening the doors |

for the agents, constituted consent.

United States v. Candella, supra. It

provides a valid independent basis for

the May 17th search.

-67-

App. 85

Accordingly, the Government has proved

that there was valid consent to the May 17,

1979 search of the new lab, and that no

search warrant was required to comply with

the Fourth Amendment.

Defendant also contends that the

Government's warrantless search of the

new lab violated his First Amendment right ~*

to engage in research. Specifically,

defendant argues that his research is a

form of expression protected by the First

Amendment ("academic freedom") and that

any search which infringes on First

Amendment expression must satisfy a higher

standard of "reasonableness" in order to

comply with the Fourth Amendment. In

support of this, defendant cites the case

of Roaden v. Kentucky, 413 U.S. 496 (1973),

which held that a warrantless seizure of

an obscene film to be shown in a commercial

theater, although incident to an arrest,

-68-

App. 86

was unreasonable because of the First Anend-

ment proscription against prior restraint.

However, the Roaden case also states that

"[a] seizure reasonable as to one type of

material in one setting may be unreasonable

in a different setting or with respect to

another kind of material .... The seizure

of instruments of a crime, such as ...

‘contraband ...' are to be distinguished

from quantities of books and movie films

when a court appraises the reasonableness

of the seizure under Fourth ... Amendment

standards." Id., at 501-502. Therefore,

the Roaden case is clearly distinguishable

from the case at bar. Even if we assume

that the manufacture of controlled sub-

stances in the context of a teaching

facility in the field of scientific research

is a form of expression protected by the

First Amendment or privileged under con-

~69-

App. 87

cepts of academic freedom, the Government ‘s

search for such substances is not subject

to a higher standard of reasonableness.

Because this Court concludes that valid

consent was given for the search of the

lab, the search was reasonable and did not

infringe on any of defendant's First

Amendment rights.

Before we consider the validity of

the seizure of evidence from the lab, we

now turn to the validity of the search of

the basement storage area on August 2, 1979.

The Government contends that the NYU

administration, Richard Macris and Professor

Jolly all had access to this storage room,

as well as common authority over it and

permission to exercise their access. A

careful review of the evidence finds this

argument unsupported by the facts.

+

App. 88

President Sawhill and General Counsel

Schaffer had no access to the basement

storage room cn August 2, 1979. It is

undisputed that Buettner-Janusch had

Professor Cantwell change the lock on the

door to this room on July 19, 1979 and

the two new keys resulting from her

efforts and paid for by the University,

were not turned over to the NYU adminis-

tration, or to anyone else. The only

way to gain entry into the storeroom

without a key would be to break down

the door or to push over the bookshelves

that closed a gap in one wall of the room.

These bookshelves went from the floor to

the ceiling, and were filled with books.

A fair reading of the relevant cases on

consent searches leads to the conclusion

that "access" must be ready and lawful,

and not by force. See, Chapman v. United

=

App. 89

States, 365 U.S. 610 (1961); United States

v. Gradowski, supra. A similar conclusion

may be reached with regard to Macris.

Jolly obtained his key surreptitiously,

and this may constitute access under the

test set forth in the Second Circuit cases

cited supre. Nevertheless, I conclude that

neither Jolly, nor for that matter NYU

officials, or Richard Macris, had common

authority over, a substantial interest in,

nor permission to use, the storage room.

Buettner-Janusch specifically told Ms.

Cantwell to change the locks and to with-

hold the keys from everyone but himself.

She elected to follow these orders. This

clearly implies an intent to keep the room

private from all outsiders, including the

owner of the building. There can be no

finding that defendant "assumed the risk"

that an outsider would permit a search of

this room. Further, the changing of the

=e

App. 90

locks and secreting of the keys implies that

any prior permission to use the storage room

was thereby revoked. There is no showing

that NYU had keys prior to Ms. Cantwell's

activity.

For these reasons, the search of the

storage room on August 2nd was not conducted

pursuant to valid third party consent.

Because the Government relied on no other

expectations to the warrant requirement,

the Government's entry into the storeroom

was an unreasonable search under the

Fourth Amendment, Katz v. United States,

supra; Coolidge v. New Hampshire, supra,

and the evidence seized as a result of

that search must be suppressed.

The Seizure in the New Lab

Thusfar, we have considered only

the lawfulness of the two warrantless

searches. Defendant also contends that,

73s

App. 91

assuming the search of the new lab was

lawful by reason of third party consent,

the seizure of certain items in the new

lab violated his Fourth Amendment rights.

The evidence seized from the new lab

was located in two general ares. First,

there were chemicals and other items

including the lab notebook lying out on

lab benches. In addition, there were

various substances located in enclosed

aveas such as the cold room, the freezer,

the fume hood, and the cabinets beneath

the fume hood.

The Government contends that no

warrant was required to seize the evidence

lying out on the lab benches because this

evidence was in "plain view", and thus

within a well-delineated exception to the

warrant requirement. See, Harris v. United

States, 390 U.S. 234 (1968); United States

in ihn

App. 92

v. Diaz, 577 F.2d 821 (2d Cir. 1978); United

States v. Block, 590 F.2d 535, fn. 5 (4th

Cir. 1978). On the other hand, defendant

claims that the plain view doctrine only

applies to "inadvertent discoveries" of

evidence during an otherwise lawful search,

Coolidge v. New Hampshire, supra, and that

the DEA agents in the new lab were delib-

erately looking for the evidence that

they found on the lab benches.

The requirement of "inadvertence"

in plain view cases concerning contraband

has recently been questioned in this

Circuit, United States v. Liberti, Dkt.

No. 79-1127 (2d Cir. January 25, 1980),

and may not be necessary element of the

Government's proof. Even if inadvertent

discovery is required in some cases, no

third party consent decision has imposed

such a rule. See, United States v.

a

App. 93

Gradowski, supra. Therefore, I conclude

that evidence in plain view may be seized

without a warrant if valid third party

consent is given, regardless of whether

the seizure was inadvertent.

Defendant also contends that the

evidence seized from inside the fume hood,

the cabinets beneath the fume hood, the

cold room and the freezer should be sup-

pressed, on the grounds that consent to

search the lab does not authorize searches

in enclosed areas. This argument has

support in two Fourth Circuit cases.

United States v. Block, 590 F.2d 535 (4th

Cir. 1978); Reeves v. Warden, 346 F.2d

915 (4th Cir. 1965). However, there are

also decisions to the contrary, United

States v. Richardson, 562 F.2d 476 (7th

Cir. 1977), cert. denied, 434 U.S. 1072

(1978); United States v. Robinson, 479

a ee

App. 94

F.2d 300 (7th Cir. 1973); White v. United

States, 444 F.2d 724 (10th Cir. 1971); and

United States v. Matlock, supra, seems to

reject the Fourth Circuit analysis by

holding that third party consent to search

a bedroom extends to the contents of a

bag within a closet.

This question has been raised in two

Second Circuit cases, United States v. Isom,

588 F.2d 858 (2d Cir. 1978) and United

States v. Pravato, supra. In Isom, the

Court of Appeals upheld a search, based on

third party consent, of a locked metal

box, because the defendant never asserted

ownership of the box and thus had no

interest under the Fourth Amendment in

keeping the contents of the box private.

The Court went on to state:

"Guests [such as the defendant]

have a justifiable expectation

under Katz v. United States,

389 U.S. 347, 83 S.Ct. 507, 19

L.Ed.2d 576 (1967), that the

my

App. 95 °

contents of locked arti-

cles that they bring to

the host's premises will

remain private. This

justifiable expectation

should not be vitiated by

a strained application of

the third-party consent

doctrine; the consent of

the host should ordinarily

be insufficient to justify

a warrantless search when

it is obvious that the

searched item is the ex-

clusive property of the

guest. If the police

wish to search such an

article, then under

Chadwick [v. United States,

433 U.S. 1(1977)] they may

seize it upon probable

cause, which they surely

had here once the sawed-

off shotgun was discovered

in the pillow; they may

then search the box after

they have obtained a

warrant."' [Matter in

brackets added].

The principle of United States v.

Chadwick, supra, has recently been

reiterated bv the Supreme Court in

Arkansas v. Sanders, 99 S.Ct. 2586 (1979),

and by the Second Circuit in United States

v. Dien, 609 F.2d 1038 (2d Cir. 1979),

-78-

App. 96

amplified on rehearing, January 31, 1980.

Therefore, the issue before this Court is

whether defendant had a reasonable expec-

tation that the fume hood, the cabinets

underneath, the cold room and the freezer,

were areas where his contrabnad possessions

would remain private.

I conclude that these enclosed areas

were not places in which Buettner-Janusch

had a reasonable expectation of privacy.

Richard Macris, Professor Jolly and a

number of students had express or implied

permission to use the cold room, the

freezer, the fume hood and the cabinets,

and exercised access to all of these areas.

None of the enclosed areas were locked, or

placed off-limits to others by defendant.

Because of this access, and permission to

exercise such access, existing in favor of

of persons other than defendant, this case

-79-

App. 97

is distinguishable as to the items in the

enclosed areas, from those decisions con-

cerning locked metal boxes, United States

v. Isom, supra, sealed cardboard boxes,

United States v. Dien, supra, and locked .

footlockers, Arkansas v. Sanders, supra.

By allowing such a substantial number of

persons to enter, use and observe these

enclosed areas of the new lab as they

wished, Buettner-Janusch forfeited any

reasonable expectation of privacy that

he might otherwise have had. . Furthermore,

the access to these enclosed areas by

Jolly, Macris, and other students, and

defendant's permission to exercise that

access, supports a conclusion that Jolly

and Macris validly consented to the search

of these areas. In conclusion, the search

and seizure of evidence from these enclosed

areas was permitted by the third party consent

to the search of the lab, and no search

warrant was necessary.

-80-

App. 98

An indeterminate number of the sub-

stances that were seized were located in

tightly fastened opaque containers which

did not, from their appearance or labelling,

betray the nature of the contents. Defendant

again relies on United States v. Dien, supra,

and argues that while the seizure of such

containers may have been proper, those con-

tainers should not have been opened until a

warrant was obtained.

The facts in Dien are directly in

point. In that case, narcotics dealers,

followed by a DEA agent, were transporting

their stock in trade through congested city

traffic. The drugs were within plain card-

board boxes sealed with tape, placed within

a van the windows of which had been painted

over and in which opaque plywood had been

placed behind the driver's seat, thereby

manifesting an “expectation that the contents

=Si«

App. 99

would remain free from public examination"

United States v. Dien, supra, at 1045. The

Court of Appeals found that the warrantless

search of the van and the seizure of the

cartons was lawful, but that under its

interpretation of the rationale of Arkansas

v. Sanders, 99 S.Ct. 2586 (1979) a warrantless

search of the cartons themselves was improper.

Within that rule, as to any sealed opaque

containers in the lab which do not show, by

label or other obvious indicia that they

contain relevant evidence, the opening and

seizure of the contents was unlawful. Such

items only will be suppressed.

Counsel are directed to meet forthwith

and prepare an agreed schedule of the items

meeting such criteria, and in event of in-

ability to agree thereon, the Court will

reopen the record to make more specific

findings as to what is suppressed within

-82-

App. 100

the rule of the Dien case. The Court has

considered the Government's attempt by

argument to narrow or distinguish the

holding therein as limited to such items

as briefcases, suitcases and footlockers

which are the traditional means by which

personal effects and papers are carried

and stored. The words of the decision

do not justify such a construction, so we

‘must leave it for a higher authority to

do so.

The Search and Seizure by Professor Jolly

Defendant also contends that the

substances and photographs gathered by

Jolly after April 25th, but before the May

17, 1979 search, should be suppressed.

Defendant argues that after April 25th,

when Edward Boyle took substances gathered

by Jolly to the United States Attorney's

Office for tests, the Government assumed

«83-

App. 101

an active and indispensable role in the

investigation, and that any further action

on Jolly's part could not be considered

"private" under the Fourth Amendment.

On the other hand, the Government asserts

that there is no proof of affirmative

participation by federal agents until

May 17th, and that the evidence gathered

by Jolly prior to that date is therefore

admissible as the produce of a private

search.

The Fourth Amendment proscription

against unreasonable searches and seizures

applies only to activities of the sovereign,

and not to those conducted independently

by a private individual, Burdeau v.

McDowell, 256 U.S. 456 (1921). In order

for evidence gathered by a private indi-

vidual to be suppressed, the search and

seizure must be "infused with governmental

-84-

App. 102

participation" United States v. Cangiano,

464 F.2d 320 (2d Cir. 1972). Expressed

differently, there must be some affirmative

participation or encouragement by the

Government. See, United States v, Keuylian,

602 F.2d 1033 (2d Cir. 1979).

On the evidence before me, I find and

conclude that the investigation conducted by

Jolly was truly private, and not infused by

government participation until the night of

May 17, 1979. The Government did inspect

certain substances gathered by Jolly, but

on an anonymous basis and as a result of

the voluntary intervention of intermediaries.

Further, the Government did not encourage

Jolly to conduct or continue his investi-

gations in any way. I find that Jolly's

actions were motivated not by Government

participation or encouragement, but rather

by understandable outrage that the facilities

-85-

App. 103

of an institution of higher learning should

be used by a colleague for the manufacture

of alleged illegal drugs.

The motions are disposed of in

accordance with the foregoing which con-

stitutes findings and conclusions. Settle

an order on five (5) days notice or waiver

of notice, with schedules identifying with

particularity the items suppressed.

A pre-trial conference and status

report will be held before me on April 10,

1980 at 9:30 A.M. in Courtroom 307.

Dated: New York, New York

March 27, 1980

Charles L. Brieant

i RRs

-86-

App. 104

FOOTNOTES

1. Fried telephone Boyle to furnish the

results of the DEA tests. Boyle testified

that:

"He [Fried] said to me and

these are his exact words,

"I have good news and bad

news.' He said, ‘The good

news is that your relative

who is working the labora-

tory is one Hell of a

chemist, [and] that this is

the purest, strongest sample

of the particular controlled

substance that his agents

had tested." The bad news

was implicit." (Tr. p. 240).

2. The Government offered no explanation

at the hearing for its failure to obtain a

search warrant in this case and thereby

obviate any controversy. As counsel for

defendant pointed out (Tr. pp. 43-45), if

by procecding on third-party consent the

Government sought to protect the anonymity

of Macris and Jolly, it could have satisfied

this necessity by obtaining warrants on

affidavits founded on anonymous informants.

The legitimate interest of the University

were served by urging the Government, as

Schaffer apparently did, to go forward with

the search on the basis of consent without

a warrant. If the consent search turned up

nothing, that would have been the end of

the matter. But if a search warrant had

issued, it would have required a return

to be filed in the public files of the

Court under Rule 41, F.R.Crim. P., with

resulting notoriety injurious to the

University.

App. 105

3. There is no reason to suspect that

Dr. Cantwell, who was also an Assistant

Professor of Anthropology at Rutgers

University, acted with improper motives

when she performed this service for

defendant. However, she conceded that

her participation in such an activity

was highly unusual. She testified:

"Q Is it an ordinary part

of your duty as an

honorary research fellow

to supervise the changing

of locks:

A No, it is not. These were,

I was led to understand,

extraordinary circumstances.

Who led you to understand that?

Professor Buettner-Janusch.

What did he tell you.

-. O8:-? ££

He called me and told me that

he had, was aware that one

of the graduate students,

one of the lab assistants,

Danny Cornyetz, had been

involved in the manufacture

of drugs. He was worried

that he was being framed --

it was during the summer,

I should point out, when

very few people were around

and he asked me if I would

change the locks for him.

ii

App. 106

THE COURT: I've never known any

professor who was asked

to supervise repairs to

materials and equipment."

(Tr. pp. 447-450).

4. The difference between a conventional

cylinder lock and a Medeco lock has been

described as follows:

"A conventional lock has

a series of spring-loaded pins

which are moved vertically by

the insertion of the key. When

the pins are each raised to the

proper designed height, which

variew between locks, the lock

tumbler can be turned by turning

the key, thereby unlocking or

opening the bolt. In order to

raise the pins to the proper

position, the key for such a

conventional lock is cut with

a plurality of cuts, called

bits, to predetermined depths

corresponding to the desired

vertical positions of each of

the pins at which the lock will

open. Moreover, the ends of

the spring-loaded pins which

are in contact with the key

are rounded, to permit easy

sliding of the key.

The Medeco lock adds a new

feature to the conventional

cylinder lock above described.

In addition to lifting each

of the pins to an appropriate

height for that pin, as ina

iii

App. 107

conventional lock, insertion

of the key also rotates the

pins about their aces, to

appropriate angular positions.

This twisting or rotation to

a predetermined point, approxi-

mately 20 degrees either to the

left or right, is made possible

by the angling of the bits on

the key and the fact that the

ends of the pins contacing the

key are wedge-shaped, rather

than rounded as in a conventional

lock, so that nen conform to

the angle on the key. The

thrusting in of the key both

turns and lifts the pins.

Both actions are necessary

to turn the tumbler and unlock

the lock. The key is wider

than the usual key, at the

point which bears on the

wedge-shaped lower ends of

the pins.'' Medeco Security

Locks, Inc. v. Lock

Technolo Corp., Dkt. No.

75 Ci oe (S.D.N.Y.

Vv.

December 37, 1976).

To duplicate a Medeco key, a locksmith must

possess special patented key-cutting equip-

ment, and also must have the serial or

pattern number of the original key to the

lock. As a result of these safeguards, it

is virtually impossible for a criminal or

a locksmith to "pick" or otherwise open, a

Medeco lock without special patented equip-

ment available only under license, and the

pattern or serial number of the specific

key to that lock.

iv

_ App. 108

5. For example, in the June 1, 1979 con-

versation between defendant and Richard

Macris, defendant quoted his then attorneys

as saying that they would not permit de-

fendant to testify before the Grand Jury,

and if he were subpoenaed, that he should

assert his Fifth Amendment rights. De-

fendant also stated that his then attorneys

had assured him that neither Macris nor

Cornyetz would be made a target of the

investigation and that his attorneys

could beat any charges against Buettner-

Janusch on his reputation alone. For

this and more of the same, Buettner-

Janusch disclosed that he was paying a

$40,000 legal fee for all services prior

to indictment. In the same conversation,

while speculating on who the "informant"

in the case might be, defendant disclosed

that his then attorneys could usually get

information such as this "leaked out" of

the U.S. Attorney's Office, but had not

been able to do so in this case.

In the June 27 and July 2, 1979

conversations between defendant and Danny

Cornyetz, defendant divulged the hardly

significant facts that his then attorneys

"think Bruce [Greenfield] is slightly

ga-ga," and believe that they could

massacre" Richard Macris if he testified

against them.

By quoting defendant's disclosures

of "trial strategy" we draw no inference

as to whether such advice was in fact

given, or whether it was quoted correctly

by Buettner-Janusch on the tapes. We note

only that a thorough review of the tapes

shows he never disclosed any significant

legal advice given to him by his then

attorneys.

App. 109

6. In addition to defendant, Professor Jolly

and Richard Macris, a number of others had

keys to the new lab. Richard Macris testified

that, to his knowledge, Danny Cornyetz, Lon

Alterman, Patricia Caratsis, Bruce Greenfield,

Rhea Trienkis and Lisa Forman had keys (Tr.

p. 89). Also, in a taped converstaion between

defendant and Macris on June l, 1979, the

following exchange took place:

BUETTNER-JANUSCH: If they were sure, I'd

be indicted now....

You know what it is,

it's an informer ..

someone got picked

up with something

and said he got it

from B-J's lab,

someone took something

from the lab and got

caught, which is

entirely possible....

MACRIS: Yeah. You --

BUETTNER-JANUSCH: You know how open, you

know how careless we

are with that --

MACRIS: Yeah, that lab's always

open.

This evidence strongly suggests that

defendant was well aware of the large number

of people who had access to the new lab,

and that he had no reasonable expectation

of privacy.

vi

App. 110

7. General Counsel Andrew Schaffer testified

that:

"The University policy was to

maintain a copy of keys to all

academic premises, and to have

access to all academic premises

at all times to assure the

safety and health of the

university and the safety

of people who work there and

the premises themselves."

(teu DP. Sa?

Walter Murray, Director of Maintenance

and Operations at NYU, confirmed in his

testiminy that there was a policy at NYU

requireing that the building manager and

the engineers have “accessibility to each

and every room in the University." (Tr.

pp. 189-190). Murray further testified

that if he discovered an NYU facility

not complying with this policy, he would

insist that the facility provide keys to

NYU to maintain access. (Tr. p. 198).

This was in accordance with memoranda

from John O'Mara, Vice President for

Institutional Facilities, which stated

in part that "there cannot be places to

which the building managers cannot have

access in case of emergency."' (GX 15).

Despite all this, there were places in

the University, including Buettner-

Janusch's storage room, with respect to

which the University policy was honored

in the breach by high placed academics

such as this defendant. I am convinced

vii

App. 111

that the University had actual or constructive

notice that it had no key to the storage room

and that its enforcement of the unwritten

"policy" was, to say the least, half-hearted

with respect to this defendant and those of

similar standing.

viii

App. 112

APPENDIX C

OPINION OF JUDGE BRIEANT (Filed May 28, 1980)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ees - ee se ee ee ee ee ee a a a ee a ee ee ee ee x

UNITED STATES OF AMERICA,

-vV- : 79 Cr. 710-CLB

JOHN BUETTNER-JANUSCH, MEMORANDU™.

Defendant. AND_ORDER

-——— — — me ee ee ee ee eee ee ee ie ee x

Brieant, J.

In a memorandum decision and order

dated March 27, 1980, this Court decided,

inter alia, that the Government's warrant-

less search of defendant John Buettner-

Janusch's laboratory at New York University,

and the seizure of a number of items therein,

was lawful and not in violation of the

Fourth Amendment of the United States

Constitution. However, the decision left

open the question of whether several

"tightly fastened opaque containers" and

App. 113

their conterts which were seized from

defendant's lab and searched by the

Government without a warrant, should be

suppressed under the rule of Arkansas v.

Sanders, 99 S.Ct. 2586 (1979), and United

States v. Dien, 609 F.2d 1038 (2d -Cir.

1979). To resolve this problem, the

record was reopened and a further

evidentiary hearing was held on April 3,

1980. Defendant and the Government each

submitted post-hearing memoranda, and the

motion to suppress those containers was

fully submitted on April 25, 1980.

Familiarity with this Court's earlier

decision of March 27, 1980 is assumed.

The following constitutes my supplemental

findings of fact and conclusions of law.

At the hearing on April 3, 1980, the

Government produced the plastic containers

in dispute, which were identified as

om.

App. 114

Exhibits 103, 104, 106 and 108 (formerly

DEA Exhibits 3, 4, 6 and 8), and was

observed carefully by the Court. All of

these containers had tops that screwed

_ on tightly. The contents were visible,

in varying degrees, through the plastic

walls of the containers. A direct ob-

servation of the containers differs

from their generally more opaque

appearance as shown in various photographs

taken on the night of the raid and

received in evidence at the prior hearing.

While the exhibits themselves were

available to the Court at the prior

hearing, they remained inside evidence

envelopes and were returned to Government

custody at the end of the Court day. The

photographs, however, were submitted to

the Court and retained in Chambers for

study at a later date when the matter was

=

App. 115

submitted for decision. There is a

surprising and substantial difference in

the apparent opacity noted in observing

the photographs, as contrasted with a

direct visual observation of the containers

themselves, now looked at again by the

Court. The increased opacity found in

the photographs is attributed to the

effect of the flash bulbs used to take

the pictures.

Exhibit 103 is two plastic containers

found in the fume hood of defendant's

laboratory, which allegedly contain

methaqualone in variuos stages of refinement.

On the side of one of the containers is an

inverted V, shorthand for the word "approxi-

mately," and the writing "160 grams." On

the side of the second container, there is

an inverted V and the writing "330 grams.'

On the tops of both containers is a Roman

ms

App. 116

numeral II. The contents of these con-

tainers, as perceived visually through the

plastic walls, may be described, and are

readily apparent, as a granular white or

cream colored substance.

Exhibit 104 is also two plastic con-

tainers, slightly smaller than those of

Exhibit 103, which were taken from the

same hood. Both containers have indi-

cations of quantity on the sides and writing

on the tops. The contents, also alleged

to be methaqualone in stages of purifi-

cation, are visible through the plastic

walls of these containers and may also

be described as a white granular sub-

stance in one, and a darker, more crys-

talline substance in the other.

Exhibit 106 is one plastic container,

allegedly containing methaqualone, which

was seized from a bench in defendant's

laboratory. On the side is a notation

oie

App. 117

"resin No. 1"' and a Roman numeral I.

Through the plastic, one may preceive

the contents as a light colored powder.

Exhibit 108 is one plastic container,

found in the lab freezer, having three

glass containers and a gravel-like sub-

stance inside. On the side of the outer

container is the notation "4BJ."" Two of

the glass containers inside have factorv

labels.

At the hearing, the Government also

elicited the testimony of Jeffrey Weber,

a supervisory chemist at the Drug Enforce-

ment Agency, Northeast Regional Laboratory.

Mr. Weber was present during the May 17,

1979 search of defendant's laboratory,

and he advised the DEA agents in charge

to seize, among other items, these con-

containers. Mr. Weber testified that his

advice was based on several facts and in-

nike

App. 118

ferences. First, his prior analysis of rhe

samples collected by Professor Jolly ives

the lab revealed methaqualone and anthra-

nilic acid, a direct chemical precursor to

methaqualone in the customary process by

which the latter is made. When he entered

the laboratory on May 17, 1979, he saw a

number of chemicals which were precursors

to methaqualone, and he concluded from

this information that the powders in nearby

containers were probably methaqualone.

These containers included Exhibits 103, 104

and 106. Also, Mr. Weber found a notebook

in plain view in the laboratory next to

Exhibit 106, that showed notations which

corresponded to the writing on several of

the containers, including the containers

identified in Exhibits 103, 104 and 106.

The notations also described the melting

points of the contents of these containers,

and Weber noticed that several of the

i

App. 119

melting points corresponded closely with

that of methaqualone. Mr. Weber conceded

that he could not tell, simply from looking

at the contents of these containers through

their plastic walls, whether the substances

were methaqualone or something else. But

he could tell that it might be, and became

convinced that these powders or sulstances

were contraband and should be seized when

he opened the tops to the containers and

smelled toluene. Toluene is a known solvent

regularly used in the manufacture of

methaqualone. Mr. Weber also advised seizing

Exhibit 108 after he saw that two of the

glass bottles contained therein were labeled

“ergotamine tartrate,"' a chemical precursor

to lysergic acid diethylamide.

Defendant argues that the ineriminating

nature of the contents of these plastic

containers was not apparent from their outward

appearance, and also that the "plain view"

App. 120

doctrine is inapplicable in this case.

Accordingly, defendant requests that Exhibits

103, 104, 106 and 108 be suppressed. On the

other hand, the Government contends that the

containers should not be suppressed because

their contents were either in "plain view"

or easily inferred by a trained chemist,

Weber, from their outward appearance, other

obvious indicia, and information known to

the Government. In the alternative, the

Government claims that the third party consent

given by Professor Jolly and Richard Macris

to search the laboratory extended to the

seizure and search of the containers.

In Arkansas v. Sanders, 99 S.Ct. 2586

(1979), the Supreme Court stated that while

personal luggage is inevitably associated

with the expectation of privacy, and thus

protected from warrantless searches absent

exigerit circumstances, "[n]Jot all containers

and packages found by the police during the

App. 121

course of a search will deserve the full

protection of the Fourth Amendment. Thus

some containers ... by their very nature

cannot support any reasonable expectation of

privacy because their contents can be inferred

from their outward appearance. Similarly,

in some cases the contents of a package will

be open to 'plain view,' thereby obviating the

need for a warrant." Id. at 2593. n. 13.

Our Court of Appeals, purporting to follow

this analysis in United States v. Dien, 609

F.2d 1038 (2d Cir. 1979), held that three large

cardboard boxes, each partially sealed with

tape, supported a reasonable expectation of

privacy because the contents of these boxes

were not in plain view, and the nature of the

contents was not betrayed by the outward

appearance of the cartons. The Court of Appeals

rejected the Government's contention that the

odor of marijuana, which emanated from the back

-10-

App. 122

of the otherwise empty panel truck in which

the boxes were found, revealed the contents

of the boxes. A recent unreported case dealing

with this problem, dated March 28, 1980,

United States v. Mannino, 79 Cr. 744-RWS (S.D.N.Y.),

held that there is no reasonable expectation of

privacy as to an unsealed cardboard box which had

interlocking flaps, which left a substantial

apparent gap. That the box was otherwise covered

by some rags or newspapers did not affect this

conclusion, especially in light of the fact that

the Government agents in the case had "ample cause"

to believe that the cardboard box contained

controlled substances.

Applying the analysis of Sanders and Dien

to the instant case, I conclude that the plastic

containers in Exhibits 103, 104 and 106 were

properly opened, and their contents seized, without

a warrant. However, the container identified as

Exhibit 108 was unlawfully searched, and must be

suppressed.

eile

App. 123

The testimony of the chemist, Weber, shows

that the containers in Exhibits 103, 104 and 106

were seized and searched because their outward

appearance betrayed the fact that they contained

relevant evidence. The labeling on these containers

closely corresponded to notations in defendant's

lab notebook, and those notations indicated to

Weber that defendant was experimenting with

chemicals that had melting points close to that

of methaqualone. Even if the substances in the

containers at issue here were noted in the lab

notebook as having higher melting points, these

substances could still be relevant evidence

such as precursors to methaqualone, or impure,

partially refined methaqualone.

Moreover, assuming that the labeling does not

disclose the nature of these containers’ contents,

one need only look at the containers themselves

to realize that they are more transluscent

than opaque. As noted earlier, our charac-

terization of these plastic bottles as opaque

-12-

App. 124

was unjustified. The photographs of the exhibits,

taken with flash bulbs create the erroneous

impression that the contents of the containers

cannot be seen. In fact, the opposite is true;

visual examination by the Court now establishes

that each container here was sufficiently

transparent to allow observation of the nature

and appearance of the substances inside. Defendant

contends that even if the containers are translucent,

no chemist could discern what type of substance

is inside merely by looking. However, it is

unnecessary for the exact nature of the contents

to be obvious to the beholder. The most expert

chemist cannot identify a substance conclusively

without testing it first. Thus, the containers

in Exhibits 103, 104 and 106 were translucent

to the point where the substances therein could

be identified as white or slightly darker powder,

and this appearance certainly betrayed them as

relevant evidence in this case.

«33

App. 125

Although defendant may have expected the

contents of these containers to be private, such

an expectation would be unreasonable under the

circumstances, and the protection of the Fourth

Amendment shall not apply. See, Rakas v. Illinois,

439 U.S. 128, n. 12 (1978); Katz v. United States,

389 U.S. 347, 361 (1967) (Harlan, J., concurring) ;

United States v. Ross, Dkt. No. 79-1624 (D.C.

Cir. April 17, 1980).

The container marked as Exhibit 108 has no

labels which would betray its contents as relevant

evidence. It contains three glass bottles, two

of which were labeled as chemicals which are

precursors to LSD, but at the hearing, it was

impossible to tell whether these labels could be

read through the plastic walls of the main

container. Mr. Weber testified that he opened

the outer container before he attempted to see

what was inside, and only then did he realize

that the contents were relevant. Moreover, the

container was found in the freezer, far away

-14-

App. 126

from the other evidence of methaqualone. Mr.

Weber had no reason to suspect, from his prior

analysis of Jolly's samples, that lysergic acid

diethylamide was being produced in the laboratory.

For these reasons, I find that the substances

within Exhibit 108 are not in plain view, nor

are they betrayed by the outward appearance of

the container itself, taken together with the

other known facts.

The Government's alternative argument, that

the third party consent of Macris and Jolly extended

to the search of Exhibit 108, requires little

discussion. In this Court's decision of

March 27th, the rule of Sanders and Dien was

applied in accordance with the analysis employed

in United States v. Isom, 588 F.2d 858 (2d Cir.

1978), which involved the issue of whether third

party consent extended to the search of a locked

metal box. This analysis is controlling.

-15-

App. 127

In conclusion, the containers in Exhibits

103, 104 and 106 were lawfully seized and searched,

and will not be suppressed. However, Exhibit

108 must be suppressed for the reasons stated.

So Ordered.

Dated: New York, New York

May 27, 1980

Charles L. Brieant

ets Me Be

App. 128

APPENDIX D

OPINION OF BRIEANT, J.

(Filed July 7, 1980)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

meaeaaeaee eee eee eee ew ew em ew ewe wee eee x

UNITED STATES OF AMERICA, " 79 Cr.710

-CLB

-v- :

MEMORANDUM

JOHN BUETTNER-JANUSCH, AND ORDER

Defendant.

~<<—<—“—“ cc 8 «ec ee e@ ee wo ee ene eee ew ea euan ne = x

Brieant, J.

| By motion docketed June 26,

1980, defendant John Buettner-Janusch

moves for reargument, pursuant to Rule

9(m) of the Local Rules of this Court, of

hsi prior motion for an order suppressing

certain physical evidence obtained by the

Government and held to be admissible at

trial in this Court's decisions of March

27 and May 27, 1980. Reargument was

heard on June 27, 1980. Familiarity with

>

App. 129

this Court's Memoranda of March 27, May

27 and June 27, 1980 is assumed.1/

Defendant contends that the

recent Supreme Court decision in Walter

v. United States, 48 U.S.L.W. 4807 (June

20, 1980), requires that all physical

evidence of controlled substances seized

from the physical anthropology laboratory

at New York University, whether taken

initially by Government Agents or by Pro-

fessor Jolly, a private party, must be

suppressed.

After careful consideration of

the Walter decision, and its applicabil-

ity.to the facts in the instant case, I

adhere to my orders of March 27 and May

27, 1980, and decline to suppress the

physical evidence referred to by defen-

dant.

ote

App. 130

In Walter, a divided Supreme

Court held that the Government's unauthor-

ized screening of a number of obscene mo-

tion picture films owned by the peti-

tioners constituted an unreasonable inva-

sion of the petitioners’ constitutionally

protected interest in privacy, despite the

fact that the Government had acquired the

filsm from a private party. These films

were each enclosed in individual boxes

which displayed suggestive drawings and

explicit descriptions of their contents.

However, these individual boxes were con-

tained, in turn, in twelve large plain

- cartons which were securely sealed, con-

cealing the nature of their contents.

The cartons were addressed to one of the

petitioners’ companies in Atlanta, Georgia,

but were mistakenly delivered to another

Atlanta company, where private party en-

«Se

App. 131

ployees opened each of the cartons, and

discovered the individual boxes and the

descriptions and drawings thereon. The

employees opened one or two of the indi-

vidual boxes, but could not view any

film sufficiently to determine its illi-

cit character, merely by holding it up

to the light. The opened cartons were

turned over to the F352, and thereafter

mneveral FBI agents viewed the films

with a projector, but neglected to ob-

tain a warrant before doing so.

Four members of the Court

agreed that the petitioners had a rea-

sonable expectation of privacy in the

films, and that the warrantless pro-

jection of these films, without consent

or exigent circumstances, constituted a

search that infringed on the petitioners'

Fourth Amendment rights. Although these

ehe

App. 132

four Justices disagreed on whether a com-

plete search by the private party would

justify a subsequent official search with-

out a warrant, they held that, in this

case, the fact that the cartons and one

or more of the individual boxes were

opened by a private party did not excuse

the FBI's failure to obtain a warrant

before screening the films. A screening

of an entire motion picture film is

necessary in order to ascertain:

"(a) whether 'the average per-

son, applying contemporary

community standards’ would

find that the work, taken as

a whole, appeals to the pru-

rient interest...; (b) whe-

ther the work depicts or de-

scribes, in a patently offen-

sive way, sexual conduct

specifically defined by the

applicable state law; and (c)

whether the work, taken as a

whole, lacks serious literary,

artistic, political, or sci-

entific value." (Emphasis

added). Miller v. California,

413 U.S. I5, 24 (1973).

oSe

App. 133

Mr. Justice Marshall concurred in the

judgment reversing the petitioners’

convictions based on the films, but

expressed no opinion on the legal

reasoning.

Defendant in the instant

case asserts that, by analogy, the

Government's warrantless testing of

the drug samples gathered both by

Professor Jolly and the Drug Enforce-

ment Agency ("DEA") Agents, standing

alone, constitutes a "search" which

infringed on his Fourth Amendment

rights. I do not agree. Even if we

assume that the testing of chemicals

is similar to the viewing of mater-

ials protected by the First Amend-

ment, the case before this Court

differs markedly from the Walter

case.

a$e

App. 134

The protection of the Fourth

Amendment only applies where a person has

exhibited an actual expectation of pri-

vacy, and where that expectation is recog-

nized by society as reasonable. See, e.g.,

Rakas v. Illinois, 439 U.S. 128, n.12

(1978); Katz v. United States, 389 U.S.

347, 361 (1967) (Harlan, J., concurring).

The Court in Walter found that the peti-

tioners had a reasonable expectation of

privacy in the films, largely because the

twelve cartons were initially sealed and

gave no indication of their contents.

By contrast, the chemicals seized from

the lab by Professor Jolly and the DEA

agents were in open dishes (see Trans-

cript of Hearing dated December 12, 1979,

p.296), or in containers that were both

translucent and bore some indication of

the nature of their contents. See, Memo-

ote

App. 135

randum and Order dated May 27, 1980,

pp. 6-7. These open dishes and trans-

lucent containers hardly justify a

finding that defendant exhibited a sub-

jective expectation of privacy, and, in

any event, society would not recognize

such an expectation as reasonable.

Although the lab itself was fairly

secure and access thereto restricted

as to the general academic community,

there were a number of graduate stu-

dents and other persons who had keys.

At least two of these graduate stu-

dents, as well as Professor Jolly,

were outside the alleged conspiracy.

To leave substances open to their

casual inspection, on lab benches

or in other common areas, is incon-

sistent with any reasonable expecta-

tion of privacy. Therefore, I con-

ols

App. 136

clude that the tests by the Government on

samples collected from defendant's labor-

atory, even though performed without a

warrant, did not infringe upon defendant's

constitutionally protected interests.

Assuming for the argument

that defendant did have a reasonable

expectation of privacy in these ‘samples,

the Walter case may also be distinguished

from the case at bar on the grounds that

no consent was given for the warrantless

projection in Walter, whereas here the

Government tests were conducted with

third party consent. The "clearly

established rule" on third party con-

sent in this Circuit, adhered to in this

Court's Memorandum and Order of March 27,

1980, is that: ,

“consent to a search by

one with access to the

area searched, and either

-9-

App. 137

common authority over it,

a substantial interest in

it or permission to exer-

cise that access, express

or implied, alone validates

the search."

United States v. Gradowski, 502 F.2d 563,

564 (2d Cir. 1974); United States v.

Pravato, 505 F.2d 703 (2d Cir. 1974);

United States v. Jenkins, 496 F.2d 57

(2d Cir. 1974), cert. denied 420 U.S.

925 (1975).

Richard Macris, the NYU stu-

dent and laboratory assistant to Pro-

fessor Buettner-Janusch, had both access

to the substances in question and per-

mission to exercise that access. As a

laboratory assistant, he had a key to

the lab and full use of all the chemicals

therein, and he frequently performed ex-

periments relating to the substances

themselves, at defendant's request. That

Macris stopped coming to the lab on

=10-

App. 138

April 20, 1979 due to a feigned illness

is of no consequence, for he was expected

to return and continue his work when his

health permitted. It is true that Macris

never explicitly consented to the Govern-

ment's analysis of Jolly's samples or the

substances siezed by DEA agents on May 17,

1979. However, he was present both when

Jolly's samples were turned over and

when the substances were seized from the

laboratory, and he knew that the Govern-

ment would perform tests to determine

whether controlled substances were being

made. Therefore, I conclude that his

actions implied consent for the Govern-

ment analy: .s. See, United States v.

Candella, 469 F.2d 173 (2d Cir. 1973).

Similarly, as is more fully

discussed in my Memorandum and Order

dated March 27, 1980, Professor Jolly

afie

App. 139

also had the necessary access, and per-

mission to exercise that access, to pro-

vide third party consent himself for the

Government's tests of the samples acquired.

Before leaving our discussion

of the laboratory, we note that at the

initial suppression hearings in this case,

the Government conceded the defendant

had a reasonable expectation of privacy

in the laboratory, and our prior deter-

minations have been based upon that

assumption. In actuality, the Court

doubts that there was any reasonable

expectation of privacy with respect to

any part of the laboratory, except the

locked desk of the defendant. The re-

cord shows that the laboratory could be

entered at any time through the adjoin-

ing laboratory of Professor Jolly from

a freight elevator, capable of carrying

-12-

App. 140

passengers, and commonly used to carry

passengers. Jolly's laboratory was con-

nected by a wide-open archway with Dr.

Buettner-Janusch's laboratory. Also,

as we noted, a large number of persons,

many of whom were not co-conspirators,

and some others arguably not co-con-

spirators, were regularly engaged in

and about the laboratory, as graduate

students in the Department or assist-

ants or employees assigned to work with

this defendant or Professor Jolly.

Included in this large group are the

following, among others:

Richard Macris

Professor Jolly

Patricia Karatsis Berman

Lon Alterman

Rhea Trienken

Lisa Forman

Jeff Rogers

Larry Cytryn

Lisa Lewis

David Klein

o)3-

App. 141

These knowledgeable persons

would have perceived what was transpir-

ing. Defendant apparently caused the

locks to the entrance to the laboratory

to be changed from time to time, a pro-

cedure not unusual in a semi-public

building where students and student

assistants come and go over the years.

But his professional colleague, Pro-

fessor Jolly, who had been authorized

to use the lab, and always possessed

a key, was capable of perceiving the

claimed improper conduct. Along with

others, he had adequate education and

professional skills to enable him to

perceive the nature of the ongoing

conduct in the lab. Standing alone,

this simple act of giving Jolly a key

to the lab negates any reasonable ex-

pectation of privacy.

«lhe

App. 142

The validity of the Court's

conclusion in this regard has been con-

firmed by subsequent testimony at trial.

Mrs. Berman, a graduate student, detected

the apparent irregularities being con-

ducted in the darkroom in furtherance

of the conspiracy, and was so incensed

by this abuse of academic freedom in

making drugs on University property

that she sabotaged the "experiment."

According to her testimony, she changed

a light bulb in the darkroom, replacing

a "“safelight" with a regular light bulb

that was colored red, thereby affecting

the lighting conditions. She also de-

stroyed or poured out a number of flasks

that were located in the cold room.

When defendant learned that his "exper-

iment" had been tampered with, he

"screamed down the hall" that "the

=15-

App. 143

project had been messed up and that a

previous graduate student had ripped him

off." That defendant incorrectly blamed

a student other than Mrs. Berman is

further evidence that many students

had access to the lab and the experi-

ments therein.

We have previously quoted in

our Memorandum and Order of March 27th a

recorded conversation between this defen-

dant and Richard Macris on June l, 1979,

in which he discusses with Macris the

ongoing investigation of his activities.

As noted in some detail in footnote 6 of

‘that opinion, and as appears from the

entire transcript, defendant on June l,

1979, prior to his Indictment, but after

the investigation had begun, attributed

his difficulties with the law to the fact

that "an informer***someone got picked

«i&«

App. 144

up with something and said he got it

from B-J's lab, someone took something

from the lab and s--, and got caught

which is entirely possible*** You know

how open, you know how careless we are

with that," to which Macris remarked

"Yeah, that lab's always open, anyone

could have just walked in there."

Defendant on tape did not dispute

that statement by Macris. In truth,

he had no reasonable expectation of

privacy.

Accordingly, defendant's

motion to suppress certain physical

evidence taken from defendant's labor-

atory is denied.

So Ordered.

Dated: New York, New York

July 7, 1980

Charles L. Brieant

Be Os Oc ws

a Pe

App. 145

FOOTNOTE

1. As reargument was heard

immediately prior to trial, the Court

announced its decision by an oral

direction with the intention of pre-

paring and filing this memorandum

decision at a subsequent date.

App. 146

APPENDIX E

OPINION OF JUDGE BRIEANT

(Filed October 29, 1980)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-eeceecaeeaeen ee ae eae ae ae eee eae x

UNITED STATES OF AMERICA :

-V- : 79 Cr. 0710-CLB

JOHN BUETTNER-JANUSCH, . : MEMORANDUM

AND ORDER

Defendant.

et YI eT x

Brieant, Jr.

On July 16, 1980, following a trial

by jury, the Defendant, John Buettner-

Janusch, was convicted of (1) conspiracy

to manufacture and distribute and possess

with intent to distribute certain controlled

substances (21 U.S.C. §§812, 841(a)(1),

841(b)(1)(B) and 841(b)(2), ("Count One") ;

(2) actual manufacture and possession of

methaqualone with intent to manufacture

and distribute (21 U.S.C. 812, 841(a) (1),

App. 147

841(b)(1)(B), and 18 U.S.C. §2),

("Count Two"); (3) knowingly making false

statements to Government investigators

(18 U.S.C. §1001), ("Counts Five and

Six"). He was found not guilty by the

jury of distribution and possession with

intent to distribute a quantity of Cylert

pemoline (21 U.S.C. §§ 812, 841(a)(1) and

841(b) (2), ("Count Three") and acquitted

by the Court of conspiracy to obstruct

justice (18 U.S.C. §§ 371, 1001, 1503 and

1510), ("Count Four").

By motion filed September 16, 1980,

the Defendant moves, pursuant to Rule 29(c),

F.R. Crim, P., for a judgment of acquittal

notwithstanding the verdict. In the

alternative, the Defendant seeks an order

pursuant to Rule 33, F.R. Crim. P.,

granting him a new trial. Defendant

reasserts his objections to various pre-trial

App. 148

rulings and to the special verdicts and

jury charge; challenges the sufficiency

of the evidence on all counts; and

specifies trial errors which he claims

denied him a fair trial. Oral argument

was heard on September 16, 1980 and the

motion was fully submitted as of October

21, 1980.

Familiarity with the previous

decisions of this Court, dated March 28,

1980, May 27, 1980, June 27, 1980 and

July 7, 1980, is assumed.

Upon considering the Defendant's

contentions in light of the applicable

standards, the Court denies both motions.

The Court finds that the evidence presented

at trial is more than sufficient to

sustain the verdict. There was adequate

proof in the record from which a reasonable

jury could find guilt beyond a reasonable

=3e

App. 149

doubt. See Glasser v. United States, 315

U.S. 60, 80 (1941). Nor has the defendant

succeeded in satisfying the lesser standard

for a grant of a new trial. Neither the

claim that the verdict is against the

weight of the evidence nor the alleged

trial errors require a new trial in the

interests of justice."" See 8A Moore,

Federal Practice §33.02 (rev. ed. 1980).

We now turn to examine the Defendant's

specific contentions to the extent not

fully covered by prior rulings or decisions

of the Court. Defendant contends that the

Court erred in deciding his earlier

motions: 1) to strike prejudicial sur-

plusage from the indictment, Rule 7(d),

F.R. Crim. P.; 2) to dismiss Count Six

of the indictment on the ground that it

is duplicitous, Rule 12(b), F.R. Crim. P.;

3) to dismiss the indictment on the ground

-4e

App. 150

of grand jury abuse, Rule 12(b)(1), F.R.

Crim. P.; 4) to sever Counts One through

Three, Rule 9(a) & 14, F.R. Crim, P.;

5) to dismiss the indictment, Rule 12(b)(1),

F.R. Crim. P. and the Fifth and Sixth

Amendments to the United States Constitution,

or alternatively to suppress tape records

and derivative evidence, Rule 12(b) (3),

F.R. Crim. P.; Amend. IV, V, VI & IX,

United States Constitution; 18 U.S.C.

§2515 and inherent supervisory power of

the Court; and (6) to suppress all items

seized before and during May, 1979 from

the defendant's Anthropology Laboratory.

Defendant also reasserts his objections

to the use of special verdicts on Count

One and to the jury charge. As to the

majority of these issues, the defendant

merely reasserts his stated objections,

refers the Court to his initial submissicn

of papers and presents no new facts or

a%e

App. 151

arguments. Because the defendant presents

no reason to alter the initial determina-

tion of these issues, the Court, at this

juncture, adheres to its prior resolution

of these issues, for the reasons stated

respectively, when these motions or

objections were decided initially.

Defendant does readdress the suppres-

sion motion on additional grounds. (Deft.

Br. Pt. II.) He contends that the evidence

seized by Prof. Jolly and Mr. Cornyetz after

May 2, 1979 ought to be suppressed.

Recognizing that the Fourth Amendment pro-

scriptions only limit Government action,

Defendant argues that the evidence seized

by Jolly should be suppresses because he

was or had become a Government agent for

Fourth Amendment purposes, after May 2,

1980, or alternatively, because the

Government was aware that he was intending

of.

App. 152

to conduct an unauthorized search and

failed to prevent this. Assuming arguendo,

that proof of these facts would require

the suppression of probative evidence

received at trial, the argument fails

because it is not supported by the facts.

There is no evidence that the Government

kenw of Professor Jolly's identity, or

even of his existence, prior to May 17,

1980 when he first met with officials

from the United States Attorney's Office

for the Southern District of New York.

Although the United States Attorney's

Office for the Eastern District had

arranged, through several intermediaries,

for a confidential testing of certain

chemicals on May 2, 1979, that office

was unaware of the identity of the person

providing the substances. There is no

evidence that after May 17, 1980 the

.

App. 153

Government participated, supervised or was

aware of any searches conducted by Prof.

Jolly. The Court, therefore, adheres to

its prior findings and conclusions of March

27, 1980 that the actions of Prof. Jolly

and Mr. Cornyetz in seizing materials from

the laboratory were the actions of private

individuals. The Court also adheres to its

prior determinations that there was valid

third-party consent to the Government

search conducted on May 17, 1980, and that

Defendant did not have a reasonable ex-

pectation of privacy in the laboratory.

(Memo and Order, March 27, 1980).

During oral argument, Defendant's

attorneys cited additional authority to

the Court as they recounted their position

on earlier motions. These cases do not

require any change in the Court's initial

findings.

whic

App. 154

We turn next to consider Defendant's

arguments concerning the sufficiency of

the evidence at trial. The Defendant argues

that the evidence on Counts One, Two, Five

and Six was insufficient for a reasonable

jury to find guilt beyond a reasonable

doubt, and alternatively that the verdict

was against the weight of the evidence

requiring a new trial in the interests of

justice. The Court finds that the evidence

was sufficient to sustain the jury verdict

and that neither the weight of the

evidence nor the alleged errors in receiving

certain evidence requires a new trial.

a) Count One

In addition to a general verdict on

Count One, the jury answered three questions

on a Special Verdict in the affirmative

indicating that they found the Defendant

guilty of conspiring to manufacture, dis-

afin

App. 155

tribute and possess with intent to dis-

tribute each of the three controlled sub-

stances charged in the indictment, namely,

Lysergic Acid Diethylamide ("LSD"),

Methaqualone, and Barbitol (Sodium Barbitol).

Regarding the conspiracy to manufacture,

distribute and possess with intent to dis-

tribute LSD, the Defendant first argues that

the physical evidence introduced at trial

negates the existence of any conspiracy.

Government Exhibit 35, a note written by

Dr. Buettner-Janusch was purportedly intro-

duced to show the second step in the manu-

facture of LSD. Contrary to the Defendant's

contentions, however, the fact that the

note by chemical symbol expressed a direction

for the use of nitric acid rather then

nitrous acid does not conclusively establish

that the Defendant was not attempting to

manufacture LSD. The weight and significance

«iD.

App. 156

of this discrepancy presented an issue to

be determined by the jury. The second

tangible piece of evidence the Defendant

challenges concerns diethylamine, an

essential ingredient in the manufacture

of LSD. Defendant claims that the only

tangible evidence of the presence of this

chemical in the laboratory was a photo-

graph of one sealed bottle and an invoice

showing delivery of two bottles on May

12, 1977. (Govt. Ex. 33K). This evidence

shows that those bottles of diethylamine

were present in the laboratory. It does

not compel an inference that all was used

earlier. There was testimony from the

Government chemist, Weber, as to the samll

amount actually necessary. (Tr. 1367-68).

Nor does this tangible evidence negate

Dr. Buettner-Janusch's admissions to Mr.

Dorfman, for example, that he was going

-ll-

App. 157

to make LSD (Tr. 118) and that LSD in plain

view on May 17, 1980 was a decoy and the

real LSD was hidden in the cold room (Tr.

155). Although the defendant claims that

the Government has, at best, proven only

the passive receipt of statements as to

the Defendant's intention to make LSD with

the aid of the co-conspirator, the existence

of an agreement need not be proven directly

but may be inferred form such statements

and subseuqnet joint participation in the

venture. See United States v. Taylor, 562

F.2d 1345, 1352 (2d Cir.), cerc. denied

sub nom. Salley v. United States, 432 U.S.

909 (1977); United States v. Varelli, 407

F.2d 735, 741-42 (7th Cir. 1969).

Defendant contends that the evidence

regarding a conspiracy pertaining to

barbitol and methaqualone is insufficient

because it is based upon the testimony of

-12-

App. 158

Mr. Dorfman and Mr. Cornyetz. His first

argument is that such "vague, sketchy and

dubious testimony of involved and implicated

parties, is, as a matter of law, an insuf-

ficient basis for a verdict of guilt."

(Deft. Br. 15.) There may well come a

point where, as the Defendant contends, any

number of witnesses considered alone or

together are so incredible and unreliable

that their testimony cannot as a matter of

law constitute sufficient evidence upon

which a reasonable jury could base a guilty

verdict. That is not, however, the

situation in this case. Such a conclusion

is not an inference compelled because the

witnesses initially gave testimony

exculpatory to Defendant, received immunity,

and then recanted and testified for the

Government. Many successful prosecutions

depend on the testimony of former

ai Se

App. 159

accomplices and co-conspirators. Such

persons usually give varying accounts of

their own activities as the investigation

progresses. What the law does require is

that such exculpatory statements of govern-

ment witnesses be disclosed to the Defendant,

see, United States v. Agurs, 427 U.S. 97

(1976); Brady v. Maryland, 373 U.S. 83

(1963), and that jury be informed of all

agreements or deals between the Government

and such accomplice witnesses. Thereafter,

their credibility is for the jury, unless

they are so depraved and uncorroborated

thets testiaeey, At this trial, the jury |

was instructed in the approved fashion

that, in considering the credibility of

Mr. Dorfman and Mr. Cornyetz, it should

recognize that, by their own testimony,

they were accomplices whose testimony must

be viewed with caution. (Tr. 2065-68).

wth

App. 160

Defendant's second argument is that

the testimony of these two witnesses, Dorfman

and Cornyetz, is tainted by the use of

illegally-seized evidence in questioning

these witnesses. Wong Sun v. United States,

371 U.S. 471 (1963). The defendant refers

specifically to the barbitcl seized on

August 2, 1979 from the basement storage

area and chemical precursors of LSD

seized on May 17, 1979. These illicit

items were suppressed by this Court.

(Deft. letter, September 22, 1980.)

Considering the factors enunciated by the

Supreme Court in United States v. Ceccolini,

435 U.S. 268 (1977), I find there is a

sufficient attenuation between the

illegally-seized evidence and the testimony

of these two witnesses at trial. The

suppressed evidence was relatively minor

in comparison to the evidence lawfully

ah Sa

App. 161

obtained by the Government from the

laboratory. The Government has demon-

strated that the identity of Mr. Cornyetz

was known prior to the May 17, 1980 search

and that seizure of ergotamine tartrate

was not used in questioning him or seeking

to obtain his cooperation. Likewise, no

mention was made of this evidence during

the negotiations which resulted in Mr.

Dorfman's cooperation. (Affid. of AUSA

Roanne L. Mann, filed October 1, 1980.)

The Government has also demonstrated

that it had knowledge of the presence

of these substances in the laboratory

independent of the seizures. (Affid. P.3)

Recognizing that "the exclusionary rule

should be invoked with much greater

reluctance where the claim is based on

a casual relationship between a consti-

tutional violation and the discovery

-16-

App. 162

of a live witness than when a similar

claim is advanced to support suppression

of an inanimate object," 435 U.S. at 280,

the Court concludes that the testimony

was properly admitted at trial.

b) Count Two

Count two of the indictment charged

the Defendant manufactured and possessed

with intent to distribute methaqualone.

The Defendant's argument in support of

the motion is based on the provenance of

the methaqualone introduced at trial.

The Government introduced six plastic

jars containing methaqualone in various

stages of purification that were seized

from the Defendant's laboratory during

the Government search on May 17, 1980.

Evidence of the "melting points" of the

substances recorded in the laboratory

notebook by Cornyetz on May 17th was

=if«

App. 163

introduced and compared with the melting

points of the substances seized by the

Government as computed by a chemist of

the Drug Enforcement Agency following

such seizure. Defendant's argument

relies on the opinion testimony of his

expert witness, Dr. Arthur Rosenthal,

that the substances introduced at trial

were not the same substances in the

laboratory on the afternoon of May 17,

1979. Defendant's argument assumes the

accuracy of Cornyet'z tests and argues

that the DEA's tests were likewise

accurate. From these assumed fact. we

"are asked to infer that the witness Jolly,

contrary to his sworn testimony at trial

in the suppression hearing, fabricated

these exhibits after Cornyetz ran his

tests and before the DEA ran its tests.

This dispute is merged in the verdict.

a)

App. 164

Our jurors were adequately situated to

resolve the credibility of the witnesses.

The trial record neither permits nor

requires a finding by the Court that

Prof. Jolly, rather than the conspirators,

made the methaqualone seized in the

laboratory, or that these exhibits

"could not possibly be" the same sub-

stances tested by Cornyetz under

Defendant's personal supervision on

the afternoon of May 17, 1979, and

accordingly, that a reasonable juror

acting reasonably could not find guilt

beyond a reasonable doubt. Nor is it

contrary to the wieght of the evidence.

c) Count Five

Defendant includes Count Five in

his motion for a judgment of acquittal

based on the insufficiency of the

evidence. No further reference has been

Ties

App. 165

made to Count Five, however, in the

Defendant's Brief or subsequent sub-

missions to the Court. There was ample

evidence produced at trial from which a

reasonable jury could find that, contrary

to his representations to an Assistant

United States Attorney, Dr. Buettner-

Janusch was aware that methaqualone

was a controlled substance.

d) Count Six

We note initially that, although

the Defendant “argued vigorously and

repeatedly that Count Six was duplicitous"

(Deft. Supp. Br. 7), he failed to move

during the trial for the withdrawal of

any defective specification. The

Government urges that such failure may

well preclude a post-trial claim of

insufficiency. See United States v.

Bonacorsa, 528 F.2d 1218, 1222 (2d Cir.),

-20-

App. 166

cert. denied, 426 U.S. 935 (1976). The

Court does not rely on this contention.

Legal questions in criminal trials should

be resolved on the merits, and the Court

never perceived that this Defendant in-

tended to or did abandon any of his pre-

trial contentions.

Defendant claims that because the

Count is duplicitous, the jury verdict

is legally insufficient if the proof at

trial was insufficient as to any statement.

This Court has previously ruled that

Count Six charged "multiple means con-

stituting a single and continuing

offense." (Memo. & Order, March 27, _—

1980). The jury was instructed that it

could properly find guilt beyond a

reasonable doubt only if it was unanimous

as to the wilful falsity of at least one

of the statements and also unanimous as

-21-

App. 167

to which one, (Tr. 2117.) See United

States v. Bonacorsa, supra; United States

v. Edmondson, 410 F.2d 670, 673 n.6 (5th

Cir. 1969); Arena v. United States, 226

F.2d 227, 236 (9th Cir. 1955).

There was sufficient evidence from

which the jury could conclude beyond a

reasonable doubt that the Defendant wil-

fully answered falsely. Any claim of

imprecision or ambiguity in the prosecutor's

questions, and any issue of what interpre-

tation this intelligent, educated and

fluent Defendant placed

This text is long and has been trimmed here. Open the source document for the complete record.