Record and brief — Tavelman v. United States
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81-846 BF
ALEX’
IN THE
Supreme Court of the United States
October Term, 1981
JACK WILBUR TAVELMAN,
Petitioner,
. vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
-
PHILIP M. SCHREIBER,
of Counsel to
Law Offices of
ANDREW M. ZANGER,
615 S. Flower Street,
Suite 800,
Los Angeles, Calif. 90017,
(213) 625-1246,
Attorneys for Petitioner,
Jack Wilbur Tavelman.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
QUESTIONS PRESENTED FOR REVIEW.
1. Denial of Due Process.
Whether the Due Process Clause of the Fifth Amendment
is violated by the creation of a fictional criminal scenario
which is created by government agents not acting in concert
with the defendants, inviting the defendants to participate
and then prosecuting them for conspiracy to violate the same
criminal acts provoked, conceptualized and created by the
agents.
2. Fifth Amendment.
Initially, whether the Petitioner’s rights against self in-
crimination were violated by failure to advise the Petitioner
of his Miranda rights when he had been targeted as a suspect
and seized by objective standards.
Secondly, whether the Petitioner’s Fifth Amendment
rights were scrupulously honored when there was continued
interrogation after unsuccessful attempts to garner counsel,
but no waiver of rights was ever received.
3. Fourth Amendment.
Whether the seizure of the Petitioner rendered his pre-
formal arrest statements inadmissible and violative of the
Fourth Amendment.
Finally, whether the Petitioner’s assertion of right to
counsel and subsequent unsuccessful attempts to obtain
counsel rendered his consent to search per se violative of
the Fourth Amendment.
PARTIES.
On July 20, 1979, Steven Job and Petitioner, Jack Wilbur
Tavelman were arrested for a violation of Section 846 of
Title 21 of the United States Code and Section 1952 of Title
18 of the United States Code. Each was indicted and tried
together. Their separate appeals in the United States Court
of Appeals for the Ninth Circuit were consolidated for ad-
TABLE OF CONTENTS
Page
Questions Presented for Review ..................sceees00 i
Oe TIE Gt EI IONS oc cc veccccstsddecocsncscncsucs i
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IIE. wiccon cht sondaiehibessibsantindgsddhesatecececceasas l
SI EIEN ebcicdecubeccocsicde:cckasesssutcgebsoossncste I
PI Silt tats he caittcbadcesacesscovnchccbecgs sombéepee 2
“Constitutional Provisions and Statutes Involved ........ 2
EE re occa coop dbocendveabevecesencs 3
‘Reasons for Allowance of the Writ ....................... 7
I.
Due Process Is Denied When the Police Create a
Crime in Order to Prosecute the Defendants ...... 7
Il.
All Incriminating Communications Obtained From
Petitioner Were Received in Violation of the Fifth
Amendment Right Against Self Incrimination .... 10
A: The Receipt of Damaging Statements From
the Petitioner Without Formal Arrest or Read-
ing of the Miranda Rights Was Unconstitu-
tional as Petitioner Was a Target Suspect and
Objectively in Custody ..................000e00e 10
B. The Government Agents Did Not Scrupu-
lously Honor the Petitioner’s Fifth Amend-
ment Rights and Coerced Further Damaging -
Page
Il.
Petitioner’s Rights Under the Fourth Amendment
Were Violated by Alternatively a Seizure of the
Defendant Without Probable Cause and Garnering
Consent to Search After Request for an Attorney
Pebbdeudaeacabhstakbiened teasbccseckethbossdrssntipths 15
A. There Was No Probable Cause for the Initial
Seizure of the Petitioner ........................ 15
B. Petitioner's Consent to Search His Hotel
Room Was Involuntary and Violative of His
Assertion to a Right to Counsel ............... 17
PIE ‘Wich dcaddvadbeliastnosceskdscatiabeceddeapideccedans 18
INDEX TO APPENDICES
Appendix A. Decision of the United States Court of
Appeals for the Ninth Circuit Rendered July 13,
ED, Mudeheens Gedidmibethbdbassivesesbenscestases App. p. |
Appendix B. Order of the United States Court of Ap-
peals for the Ninth Circuit Rendered September 25,
cA MRK a Riavonioverscsscieteestnessbssenedte 15
Appendix C. Order of the Trial Court Rendered De-
ile IPT Hab Ct chcakn ce céve cuncsecssocnabicoevecny 17
Appendix D. Order of the Trial Court Rendered Jan-
I RUE SuibsdcadiAs pcateecocscccqiésccosinamendabiacs 27
Appendix E. Amendment IV ..................0.cs2e000 29
Appendix F. Amendment V ...............cccccccccccsess 30
Appendix G. United States Code, Title 18, Section
SET Siete the oddbundiiediibs cocks séudhepaicssduveuessioases 31
Appendix H. United States Code, Title 18, Section
TE senda Didilcs vigdpoinssescsocduiaeastntguios 32
Appendix I. United States Code, Title 21, Section 846
iv
TABLE OF AUTHORITIES
Cases Page
Brown Vv. Illinois, 422 U.S. 590 (1975) ................. 16
Brown v. Mississippi, 297 U.S. 278 (1936) ............ 9
Bumper v. North Carolina, 391 U.S. 543 (1968) ...... 17
Carroll v. United States, 267 U.S. 152 (1925) ......... 15
Casey v. United States, 276 U.S. 413 (1928) ... 7,9, 10
Doyle v. Ohio, 426 U.S. 610 (1976) ...............c0ee 11
Dunaway v. New York, 442 U.S. 200 (1979) .... 15, 16
Edwards v. Arizona, ... U.S. ..., 68 L.Ed 2d 378, 101
MRC Se CHREEED GpecctebScccrccccvsevsyocsesusedye 12, 14, 18
Hampton v. United States, 425 U.5. 484 (1976) ......
be chia thnehbdhnsddbTneMlins copasocecocupaseyonsbesses 7,9, 10
Henry v. United States, 361 U.S. 98 (1959) ........... 16
Jackson v. Denno, 378 U.S. 368 (1964) ................ 15
Johnson v. Zerbst, 304 U.S. 458 (1938) ........... 14, 17
Lego v. Twomey, 404 U.S. 477 (1972) .............00+. il
Michigan v. DeFillipo, 443 U.S. 31 (1979) ............ 15
Michigan v. Mosley, 423 U.S. 96 (1975) ............... 13
Miranda v. Arizona, 384 U.S. 436 (1966) ..............
sdiplaies snunnewasigecnes ... i, 5, 10, 11, 12, 13, 14, 16, 18
Oregon v. Mathiason, 429 U.S. 218 (1973) ............ 11
Orozco v. Texas, 394 U.S. 324 (1969) ............ce0e0 il
People v. Johnson, 48 N.Y.2d 565, 399 N.E.2d 936
SE iniaciddinebsvuiiascespis cones dnuabyssiinitensaaeed 18
Rhode Island v. Innis, U.S. ..., 64 L.Ed.2d 297
SR Witeeteiettins tiiins ononsoeicntinecchebutheeweus 13, 14
Rochin v. California, 342 U.S. 165 (1952) ............. 9
Russell v. United States, 411 U.S. 423 (1973)
siete nai cibdlapabvelinnhs+esobecesecesecgs oihan 7, 8,9, 10
SERRE EEE EEE EEE EEE EEE EEE EEE EEE EHH HEE
Page
Sherman v. United States, 356 U.S. 369 (1958) ... 8,
Sorrells v. United States, 287 U.S. 435 (1932) .... 8
Testy ¥. OBio, 392 U.S. 1 (1966) .....ccccccccccccceccees
United States v. Crews, ... U.S. ..., 100 S.Ct. 1244
SUIT: dichamicedslindnetttodinescveasdadesdaemaisiiessabes
COUEEED . the absicenneiiechéditarscevecscossovesstigenmhbahn 2,
Wong Sun v. United States, 371 U.S. 471 (1963) ....
Zap v. United States, 328 U.S. 624 (1964) .............
Constitution
United States Constitution, Fourth Amendment ........
jpbbufikesiidbabetksadebintinbteckevenvbovutesesobnn i *
United States Constitution, Fifth Amendment ..........
suabyvorscbivephssaniveeuvotdesesys i, 2, 5, 6, 9, 10, 13,
Rules
Federal Rules of Criminal Procedure, Rule 41 ..... 2.
Statutes
Fy ara: ME BOE cbdhbesescccccocccccveiacsbsene i, 2,
18 U.S.C., Sec. 3501 (a) and (b) ...............45. 3, 6,
PEI hy Ge TMD veto olinceosescoccasseencedinens i, 3,
Be URE BOB. DAIEED ecibic occ ccscsccccccespumntectabbes
9
9
16
16
14
16
17
15
No. ..-...
IN THE
Supreme Court of the United States
October Term, 1981
JACK WILBUR TAVELMAN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
INTRODUCTION.
Petitioner, Jack Wilbur Tavelman (Defendant-Appellant
below), prays that a Writ of Certiorari issue to review the
decision of the United States Court of Appeals for the Ninth
Circuit, entered on July 13, 1981, as amended, September
25, 1981, and the Judgment of Conviction by the United
States District Court, District of Nevada, entered on Feb-
ruary 25, 1980.
OPINIONS BELOW.
The opinion of the United States Court of Appeals for
the Ninth Circuit affirming and vacating in part the judgment
of the trial court is attached hereto in Appendix *‘A’’. Said
jal. ei
opinion is respectively entitled and found at United States
of America v. Tavelman, 650 F.2d 1133 (1981).
On September 25, 1981 the court amended its opinion
which is set forth herein in Appendix ‘*B’’.
The opinion of the United States District Court for the
District of Nevada denying Petitioner’s motion to suppress
evidence pursuant to Rule 41 of the Federal Rules of Crim-
inal Procedure is attached as Appendix *‘C’’. The trial
court’s order denying Petitioner’s motion pursuant to Sec-
tion 3501 of Title 18 of the United States Code is attached
hereto as Appendix ‘*D’’.
JURISDICTION.
The opinion of the United States Court of Appeals for
the Ninth Circuit, set forth in Appendices ‘‘A’’ and *‘B”’
was entered on July 13, 1981 and amended on September
25, 1981.
A Petition for Rehearing was denied on September 25,
1981. Said denial is set forth in Appendix **B’’.
The jurisdiction of this Court is invoked under Section
1254(1) of Title 28 of the United States Code.
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED.
Fourth Amendment to the Constitution of the United
States of America (Appendix ‘*E’’).
Fifth Amendment to the Constitution of the United States
of America (Appendix **F’’).
Section 1952 of Title 18 of the United States Code
(Appendix ‘‘G’’).
ae aa
Section 3501, Subsections (a) and (b) of Title 18 of the
United States Code (Appendix *‘H’’).
Section 846 of Title 21 of the United States Code
(Appendix *‘I’’).
STATEMENT OF THE CASE.
Baron, an inmate of the Douglas County, Nevada, Jail
contacted Dennis Cameron of the Drug Enforcement
Administration to assist the agency in apprehending persons
involved in the distribution of narcotics in Los Angeles,
California area. In July, 1979, Baron travelled to Los An-
geles with a photograph showing several large bags of a
substance giving the appearance of cocaine.
In Los Angeles, Baron, through Meekins, a middle man,
met Silverman, another middle man. Baron told Silverman
of a possibility of a source of cocaine in the Reno area.
Over a period of four days, Silverman made a number of
phone calls to Steven Job, trying to entice him into flying
to Reno to purchase cocaine from Baron. After several des-
perate attempts, Silverman finally set up a meeting between
Job and Baron at Job’s house. Phone numbers were ex-
changed between Baron and Job, with Job still expressing
reservations about purchasing cocaine from Baron.
On July 17, 1979 Baron called Job to discuss the pos-
sibility of doing business. No deal was set. On July 19,
1979, Baron made five phone calls to Job to negotiate a
possible drug sale. All conversations were recorded by the
D.E.A. where they originated.
At the end of their last taped conversation, Baron stated
that he expected an apology for ‘‘all of this hassle’’ Job had
caused him. In order to interest Job, Baron continually low-
ered the price and offered to pay for all of Job’s expenses
ae ae
in coming to Reno. Job mentioned that his friend *‘Jack”’
was to come with him to iest the cocaine. ‘‘Jack’’ was
described as an accountant.
Baron and Job met in the bar at the MGM Hotel in Reno,
Nevada, where Baron showed Job two large bags each filled
with five pounds of powder which appeared to be cocaine.
Job had never even mentioned the possibility of pur.uasing
ten pounds of cocaine. The briefcase with the powder was
left with Baron’s alleged partner, D.E.A. agent Cameron.
Job and Baron went to Job’s hotel room. After Baron saw
$24,000 in cash in Job’s room, the two returned to retrieve
the briefcase. Baron and Job then proceeded to the elevator
to go to Job’s alleged partner’s room and were followed by
several D.E.A. agents.
Job and Baron yot to the floor where his alleged partner
was, and Job felt that something funny was going on. At
this point he was arrested by agent Cameron. The people
went to Job’s room.
Cameron then attempted to locate Job’s partner, *‘Jack
the accountant,”’ in the hotel. The hotel gave the agent
information that the only single man checking in on the
same day as Job and occupying a room on the floor where
Job’s partner was supposed to be was registered as *‘Jim
Freeman”’ in room #2417. Cameron and the agents pro-
ceeded to that room.
Cameron knocked on the door and was allowed inside
by Tavelman. In the hallway outside Tavelman’s room were
five individuals with at least three guns drawn visible to
Tavelman when he opened the door to let Cameron in.
Inside, Cameron explained that he suspected that there had
been a narcotics arrest in the hotel that day in which he felt
that Taveiman was involved. At this point the other agents
entered and holstered their guns as they came into the room.
eo
Cameron began to question Tavelman without reading
him his Miranda rights and elicited that Tavelman was an
accountant, had registered under a fictitious name, had
$22,000 in cash in the room and had come into Reno on
the same plane as Job. Cameron then asked for permission
to search the room. Tavelman requested the opportunity to
contact his attorney in Los Angeles. Cameron arrested Tav-
elman and read him his rights. Tavelman was then allowed
to call his attorney but was unsuccessful after two attempts.
Discussions promptly began during which Tavelman re-
fused to waive his rights and to allow a search of his room.
Cameron indicated that any cooperation he gave would be
made known to the U.S. Attorney and that he would simply
get a warrant to search the room. On the third request to
search the room, during the discussions with Tavelman,
permission was given. Seizure of several items of evidence
was had pursuant to this alleged consensual search. During
the interrogation of Tavelman, gentle persuasion, promises
of cooperation, availability of bail, threats of a search war-
rant, the possibility of Tavelman becoming an informant
and other artifices were used to cajole Tavelman into dam-
aging admissions and consent to search. At no time did
Tavelman waive his rights nor did Cameron seek another
reading of the rights or an explicit waiver from Tavelman.
On August 9, 1981 Tavelman, Petitioner herein, and
Steven Job were indicted for a violation of Section 846 of
Title 21 of the United States Code and Section 1952 of Title
18 of the United States Code.
On November 19 and 20, 1979, a hearing was held to
determine admissibility of the items, both tangible and in-
tangible, seized in Tavelman'’s room, pursuant to Fourth
Amendment standards. Prior to trial, Petitioner moved for
suppression of his statements in his room pursuant to Fifth
tblbcasie
Amendment standards. Each motion was denied in its en-
tirety, with no hearing being held on the motion pursuant
to Section 3501 of Title 18 of the United States Code.
a aa
REASONS FOR ALLOWANCE OF THE WRIT.
1.
DUE PROCESS IS DENIED WHEN THE POLICE CREATE A
CRIME IN ORDER TO PROSECUTE THE DEFENDANTS.
This Court first dealt with the specific issue of entrapment
in 1928 in the decision of Casey v. United States, 276 U.S.
413 (1928). The Court did not consider the argument of
entrapment as it was not raised in the record. (/d. at 418-
419). Justice Brandeis, in his dissenting opinion, though,
recognized the problems of government conduct which cre-
ated the crime itself.
**The obstacle to the prosecution lies in the fact that
the alleged crime was instigated by officers of the gov-
ernment; that the act for which the government seeks
to punish the defendant is the fruit of their criminal
conspiracy to induce its commission.The government
may set decoys to entrap criminals. But it may not
provoke or create a crime, and then punish the crim-
inal, its creature.’’ Casey, supra at 423, (Brandeis,
J., dissenting) (emphasis added).
Nearly fifty years later this Court considered another sit-
uation involving coercive tactics by government agents in
arresting and prosecuting the defendant. In Hampton v.
United States, 425 U.S. 484 (1976) a government informant
supplied the defendant with counterfeit drugs and then set
up a sale of the drugs to government agents. This Court
rejected the Defendant’s violation of due process claims
based upon Russell v. United States, 411 U.S. 423, 431-
432 (1973), but held nevertheless:
‘*The limitations of the Due Process Clause of the Fifth
Amendment come into play only when the Government
activity in question violates some protected right of the
defendant. Here, as we have noted, the police, the
government informer and the defendant acted in con-
cert with one another. .. . If the police engage in
illegal activity in concert with a defendant beyond the
scope of their duties the remedy lies, not in freeing the
equally culpable defendant, but in prosecuting the po-
lice under the applicable provisions of state or federal
law.’’ Hampton, supra, at 490 (emphasis in original).
The decision in Hampton arose as a response to the ar-
gument by the defendant that the government's conduct
therein was... .
**. . . SO Outrageous that due process principles would
absolutely bar the government from invoking judicial
processes to obtain a conviction . . .’’ Russell, supra,
at 431-432.
~ Russell involved an entrapment argument based upon the
act of government agents supplying an ingredient to the
defendant to manufacture an illegal controlled substance,
methamphetamine (‘‘speed’’). This Court upheld the de-
cisions of Sorrells v. United States, 287 U.S. 435, 451
(1932) and Sherman v. United States, 356 U.S. 369, 372
(1958), which had mandated an investigation into the pre-
disposition of the defendant prior to the government’s in-
volvement.
**To determine whether entrapment has been estab-
lished, a line must be drawn between the trap for the
unwary innocent and the trap for the unwary criminal.
. . « Onthe one hand, at trial the accused may examine
the conduct of the government agent; and on the other
hand, the accused will be subjected to an ‘appropriate
and searching inquiry into his own conduct and pre-
disposition’ as bearing on his claim of innocence.”’
Sherman, supra at 372-373; quoting Sorrells, supra,
at 451.
In Sorreils, a government agent visited the defendant’s
home, and asked repeatedly and persistently (three to five
times) for some liquor. The defendant said he had no liquor,
—
but after continual requests, the defendant said he wouid
try to get some. When he returned with the liquor, he was
arrested. The Court found this governmental behavior a
gross abuse of authority. 287 U.S. at 451.
In Sherman, the defendant was induced by the repeated
requests of a government informer to supply him with nar-
cotics. The defendant was unwilling from the beginning to
do this, but, finally acquiesced, and was thereafter arrested.
The Court held that entrapment was established as a matter
of law. 356 U.S. at 373. The Court stated that entrapment
occurred when the criminal conduct was the product of the
creative activity of law enforcement officials. 356 U.S. at
372. |
Rochin v. California, 342 U.S. 165 (1952), injected a
requirement of basic fairness in criminal prosecutions. (/d.
at 173). This Court disallowed convictions that were
**. . . brought about by methods that ‘offend a sense of
justice.’ ’’ Id. at 173, quoting Brown v. Mississippi, 297
U.S. 278, 285, 286 (1936).
Therefore, as seen, the original entrapment theory es-
poused in Casey, supra, was injected with the Constitutional
ramifications of the Due Process Clause of the Fifth Amend-
ment as per Rochin and Russell and analyzed by Hampton.
In the instant case, though, the criminal activity was
created by the government. The government agents, through
their informer, conceptualized a scheme to sell phony drugs
to the defendants. No illegal substances were involved, no
purchase of narcotics by the defendants took place and no
sale of controlled substances to anyone ever occurred. The
defendants only involvement was unsuccessful negotiations
and travelling to another state. The negotiations between
the informant and the defendants were riddled with induce-
ments and continual phone calls by the informer.
antt.
Here, the agents were not acting in concert with the de-
fendants as in Russell and Hampton. The agents here com-
mitted the very acts feared by Justice Brandeis in Casey by
provoking and creating crime and then inducing the defen-
dants to enter the criminal scenario conceptualized by the
agents. Without the government, no crime would have oc-
curred.
This Court should distinguish between the conduct herein
as opposed to the traps set in Russell and Hampton. The
situation here was a fiction set up to arrest the defendants.
The possibilities of abuse by the police are great if the due
process clause is not invoked to prohibit this type of conduct.
The police would be empowered to target suspected crim-
inals for prosecution, create a fictional criminal scenario,
induce interest in the targeted defendants and then prosecute
them for conspiracy to participate in the fiction.
This Court, therefore, should accept the within matter to
determine whether the Due Process Clause of the Fifth
Amendment prohibits creation of a criminal scenario or
fiction by government agents in order to prosecute suspected
criminals regardless of their predisposition.
I.
ALL INCRIMINATING COMMUNICATIONS OBTAINED FROM
PETITIONER WERE RECEIVED IN VIOLATION OF THE
FIFTH AMENDMENT RIGHT AGAINST SELF INCRIM-
INATION.
A. The Receipt of Damaging Stateraents From the Pe-
titioner Without Formal Arrest or Reading of the
Miranda Rights Was Unconstitutional as Petitioner
Was a Target Suspect and Objectively in Custody.
. In the landmark decision, Miranda v. Arizona, 384 U.S.
436 (1966), this Court stated:
“*[T]he prosecution may not use statements, whether
exculpatory or inculpatory stemming from custodial
interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure the
privilege against self incrimination. By custodial in-
terrogation, we mean questioning by law enforcement
officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any
significant way.’’ (/d. at 444). See also: Lego v.
Twomey, 404 U.S. 477 (1972); Doyle v. Ohio, 426
U.S. 610 (1976); Cf. Oregon v. Mathiason, 429 U.S.
218 (1973).
In Orozco v. Texas, 394 U.S. 324 (1969), the defendant
was accosted by four agents in his bedroom. Prior to giving
Miranda warnings or formally arresting the defendant, the
agents elicited several incriminating responses in order to
establish probable cause. The Court rejected the argument
that due to the defendant being in ‘‘familiar surroundings”’
and on his own bed, Miranda did not apply. (/d. at 326).
The statements of the defendant, in Orozco, were sup-
pressed as there had been a deprivation of his freedom in
a significant way. (/d. at 315).
Clearly, the instant matter involves one of a custodial
interrogation where damaging statements were elicited and
no Miranda rights were given. Prior to the Miranda rights
being given, TAVELMAN was questioned by agent Cam-
eron of the Drug Enforcement Administration, in the pres-
ence of at least four other individuals all standing near the
suspect. The Petitioner had already seen the agents with
guns, which were hoistered as they entered the room. There
can be no doubt that TAVELMAN’S freedom was restricted
significantly. The agents acted in a manner much beyond
a simple investigatory stop or inquiry. Agent Cameron had
gone so far as indicating to TAVELMAN that he was in-
volved in an arrest that had already taken place in the hotel
that day. The trickery involved in not informing the defen-
aK. Pel
dant of his rights and asking him statements that only Cam-
eron knew would incriminate TAVELMAN is obvious.
Each question was innocuous in and of itself, but of a highly
incriminating nature when coupled with the information
known already by Cameron. Formal arrest and a reading
of the Miranda rights came only when the agent asked for
permission to search, and the Petitioner himself suggested
the need for an attorney.
Although TAVELMAN had not been formally arrested,
he was in a custodial situation where his freedom was sig-
nificantly deprived. As stated in Miranda:
**He must be warned prior to any questioning that he
has the right to remain silent, that anything he says can
be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires. Opportunity
to exercise these rights must be afforded to him
throughout the interrogation. . . . But unless and until
such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result
of interrogation can be used against him.’’ Miranda,
supra, at 479. See also: Edwards v. Arizona, ... U.S.
...» 68 L.Ed.2d 378, 101 S.Ct. ... (1981).
Therefore, Petitioner was a target suspect when the agents
entered the Petitioner’s room and utilized the specific knowl-
edge gained before formal arrest to convict the Petitioner,
without providing the necessary required safeguards to the
defendant’s rights, while the defendant was in a custodial
atmosphere.
ue =
B. The Government Agents Did Not Scrupulously
Honor the Petitioner’s Fifth Amendment Rights and
Coerced Further Damaging Admissions After Fer-
mal Arrest.
Michigan v. Mosley, 423 U.S. 96 (1975), dealt with the
admissibility of a confession garnered when the defendant
refused to waive his rights during his first interrogation, but
did confess to a second officer questioning him about an
unrelated crime after advising the defendant a second time
of his Miranda rights, The Court held that the confession
was admissible but instructed on the limitations and pro-
cedures for interrogations by lav. enforcement personnel.
**We therefore conclude that the admissibility of state-
ments obtained after the person in custody has decided
to remain silent depends under Miranda on whether his
‘right to cut off questioning’ was ‘scrupulously hon-
ored.’ ’’ Id. at 104, quoting Miranda, supra, at 479.
(emphasis added).
Part of the problem in dealing with the ‘‘scrupulously
honored’’ test is what can be considered questioning or
interrogation. This Court recently resolved the issue as to
what an interrogation is when it was held:
**We conclude that the Miranda safeguards come into
play whenever a person in custody is subjected to either
express questioning or its functional equivalent. That
is to say, the term ‘interrogation’ under Miranda refers
not only to any words or actions on the part of the
police . . . that the police should know are reasonably
likely to elicit an incriminating response from the sus-
pect.” Rhode Island v. Innis, ... U.S. ..., 64 L.Ed.2d
297, 307-308 (1980).
The basis for the nnis definition of interrogation was to
provide an extra protection to the defendant under Miranda
against coercive police tactics. (Jd. at 308). Clearly, if
Set Tr
rights are not waived and a desire for counsel is shown, the
burden on the government to show waiver is heavy.
In the instant case, Petitioner was coerced through many
tactics. Initially the Petitioner asserted his right to an at-
torney before the Miranda rights were given. After having
been read his rights, Tavelman tried twice to contact his
attorney without success. Tavelman who never waived his
rights, was continuously requested to waive his Fourth
Amendment rights. During this questioning, promises of
leniency were brought up as well as cooperation with the
agents and possible freedom. The agent further discussed
with Tavelman the possibility of jail and spending the week-
end there without bail. In ali this confusion, not an advocate
for his defense and the unavailability of an attorney, Tav-
elman even asked to talk off the record when Cameron
interrogated him.
In Edwards v. Arizona, ... U.S. ..., 68 L.Ed.2d 378
(1981), this Court held:
**[W]hen an accused has invoked his right to have
counsel present during custodial interrogation, a valid
waiver of that right cannot be established by showing
only that he responded to further police-initiated cus-
todial interrogation even if he has been advised of his
rights.’’ (68 L.Ed.2d at 386).
Edwards found that the continued questioning to be a per
se violation of Miranda when right to counsel has been
invoked. (68 L.Ed.2d at 386-387). The officers herein did
not “‘scrupulously honor’’ the Petitioner’s rights. The de-
fendant’s understanding of his rights (see United States v.
Tavelman, 650 F.2d 1133, 1138 (1981)) is not the bench-
mark, intelligent waiver is. Johnson v. Zerbst, 304 U.S.
458, 464 (1938).
Therefore, Tavelman’s incriminating statements and as-
sertive conduct should be suppressed as he was coerced and
ay
cajoled by subtle means. He was questioned through tactics
designed to elicit incriminating responses, and, finally, his
Fifth Amendment rights were not scrupulously honored,
especially his right to counsel.
This Court should review the instant matter to determine
the proper procedures when the police maintain interroga-
tion after rights have been given, an attorney is requested
and further discussions ensue, without a specific waiver or
provision of an attorney.'
il.
PETITIONER’S RIGHTS UNDER THE FOURTH AMENDMENT
WERE VIOLATED BY ALTERNATIVELY A SEIZURE OF
THE DEFENDANT WITHOUT PROBABLE CAUSE AND
GARNERING CONSENT TO SEARCH AFTER REQUEST
FOR AN ATTORNEY.
A. There Was No Probable Cause for the Initial Sei-
zure of the Petitioner.
Probable cause exists when there are:
... facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent per-
son, or one of reasonable caution, in believing in the
circumstance shown, that the suspect has committed,
is committing, or is about to commit an offense.”
Michigan v. DeFillipo, 443 U.S. 31, 37 (1979). See
also: Carroll v. United States, 267 U.S. 132 (1925).
Clearly ,arrests of suspects can only occur when probable
cause exists. Dunaway v. New York, 442 U.S. 200, 207-
209 (1979).
'The trial court refused to hold a voluntariness hearing pursuant to
18 U.S.C. § 3501 although timely requested. See Jackson v. Denno,
378 U.S. 368 (1964). The trial court's decision pursuant to defendant's
ee ee een ee 3 Sey
dealt with Fifth Amendment issues not raised at the suppression hearing
held pursuant to oo In essence, no decision
was
made on the issues presented.
eC Ne
The key to determining when probable cause is needed,
is to analyze when the actual arrest occurred. Henry v.
United States, 361 U.S. 98, 103 (1959).
**It must be recognized that whenever 2 police officer
accosts an individual and restrains his freedom to walk
away, he has ‘seized’ that person.”’ Terry v. Ohio, 392
U.S. 1, 16 (1968).
In Dunaway v. New York, supra, the defendant was
“*seized’’ but not arrested. After his interview with the po-
lice, which elicited incriminating statements, the defendant
was arrested. This Court disapproved the arrest. (/d. at 212-
213). See also: Brown v. Illinois, 422 U.S. 590 (1975).
In the instant case, the government agents entered the
Petitioner’s room without probable cause. The agents knew
only speculative facts regarding the Petitioner. Once in his
hotel room, the agent began to question Tavelman regarding
status, identification, employment, cash on hand and other
incriminating matters. In essence, Cameron was attempting
to elicit incriminating information without the benefit of
having read Tavelman Miranda warnings and to ‘‘roll’’ the
situation into probable cause. Finally, arrest was made only
when the Petitioner asserted his rights.
Essentially, Tavelman and his hotel room were controlled
by government agents rather than by the occupant. Tavel-
man had already seen at least three guns in the air.
Once an arrest has occurred without probable cause, the
arrest must be quashed as well as all evidence received as
a fruit of that illegality. Wong Sun v. United States, 371
U.S. 471, 485, 491-492 (1963); United States v. Crews,
... ULS. ..., 100 S.Ct. 1244, 1249-1250 (1980).
Herein, each of the items of evidence produced in Tav-
elman’s room, as well as his incriminating statements and
questionable consent to search his room should be sup-
pressed.
er ee
B. Petitioner’s Consent to Search His Hotel Room Was
Involuntary and Violative of His Assertion to a
Right to Counsel.
In analyzing a warrantless search based upon consent,
the basic issue to be determined is voluntariness.
“When @ prosecutor secks to rely upon consent to
justify the lawfulness of a search, he has the burden
of proving that the consent was in fact, freely and
voluntarily given. This burden cannot be discharged
by showing no more than acquiescence to a claim of
lawful authority.”’ Bumper v. North Carolina, WA
U.S. 543, 548-549 (1968).
The Court must use the basic test of “totality of the
ciscumstances’’ in ruling on the voluntariness of consent.
*, . . [The question whether a consent to a search was
in fact ‘voluntary’ or was the product of duress or
coctcion, express or implied, is a question of fact to
be determined from the twtality of all the circum-
stances.’’ Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973),
Since consent is a waiver of 2 Constitutional right it
cannot be inferred lightly. Zap v. United States, 328 US.
624 (1964), Johnson v. Zerbst, WA U.S. 458 (i938).
“In examining all the surrounding circumstssces
determine if in fact the consent to search was coerced,
account must be taken of subtly coercive police ques-
tions, as well as the possibly vulnerable subjective state
of the person who consents.”’ Schneckloth, supra at
229.
In the instant situation, Petitioner was faced with five
individuals and drawn guns, continued questioning over a
long period of time, with several agents in his hotel room
neas him during the questioning. Continued questioning of
Tavelman produced from the government not only recurrent,
gratuitous and deceitful promises of leniency; but also at
least three requests to search his room, coupled with threats
of a search warrant. The requests to search the room were
made after a refusal to waive his Miranda rights and attempts
to reach an attorney.
This court should accept the within matter to determine
initially, the problems surrounding a consent to search when
coercive promises of leniency are made in return for consent
to search. Further, whether the defendant is entitled to coun-
sel when requested prior to the alleged consensual search
and, alternatively, whether request for consent to search is
per se a violation of the defendant's rights after counsel has
been requested. See Edwards v. Arizona, supra; People v.
Johnson, 48 N.Y .2d 565, 399 N.E.2d 936 (1979).
Conclusion.
For the foregoing reasons, it is respectfully submitted that
the Petition for Writ of Certiorari should be granted.
Respectfully submitted,
PHILIP M. SCHREIBER,
of Counsel to
Law Offices of
ANDREW M. ZANGER,
Attorneys for Petitioner,
Jack Wilbur Tavelman.
APPENDIX A.
Decision of the United States Court of Appeals for the
Ninth Circuit Rendered }xty 13, 1981.
United States of America Plaintiff-Appellee, v. Jack
Wilbur Tavelman, Defendant-Appellant.
United States of American, Plaintiff-Appeilee, v. Steven
Job, Defendant-Appellant. Nos. 80-1128, 80-1129.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 9, 1981. Decided July 13,
1981.
Appeals from the United States District Court for the
District of Nevada.
Before SKOPIL and FARRIS, Circuit Judges, and BEL-
LONI,* District Judge.
FARRIS, Circuit Judge:
Jack Wilbur Tavelman and Steven Job appeal their con-
victions and sentences for violation of 21 U.S.C. §§ 841(a)(1),
846 (1976) (conspiracy to possess cocaine with intent to
distribute) and of 18 U.S.C. § 1952(a)(3) (1976) (Travel
Act) (interstate travel with acts in furtherance of intent to
distribute cocaine). See 28 U.S.C. § 1291 (1976). We af-
firm except the imposition of special parole terms under 21
U.S.C. § 846 (1976), which we vacate.
I. FACTS
Baron, an inmate at the Douglas County Jail, contacted
DEA agent Cameron who accepted Baron’s offer to assist
the agency in apprehending persons involved in the distri-
bution of narcotics in Los Angeles. When Baron went to
Los Angeles in July, 1979, he took a photograph showing
*The Honorable Robert C. Belloni, United States District Judge for
the District of Oregon, sitting by designation.
oe
him holding several large bags filled with white powder
giving the appearance of cocaine (but actually procaine).
Through one Meekins, a middle man, Baron met Silverman,
another middle man. Over a period of four days, Silverman
made a number of calls to defendant Job, attempting to
entice him to fly to Reno to purchase some very good co-
caine from a large dealer.' During a subsequent meeting at
Job’s house, Baron and Job discussed the quality and price
of the cocaine and exchanged telephone numbers. During
this conversation, Job expressed reservations about the pro-
posed purchase because he already had one kilo of cocaine
that he was attempting to sell. After three of four days in
Los Angeles, Baron returned to Reno and reported that Job
was not interested in purchasing cocaine. Over the next few
days, however, Baron made six recorded telephone calls
from the Reno DEA office to Job in Los Angeles in which
he increased the attractiveness of the trip to Reno. In his
acceptance, Job mentioned that his friend Jack, an account-
ant, would travel with him to Reno to analyze the cocaine
and would supply half the purchase money.
Job and Tavelman flew to Reno from Los Angeles on
‘During trial, Silverman testified over objection to a prior transaction
occurring between himself, Tonkowicz (‘Tea Bags’’), and Job one
month before the arrests. Silverman and Tonkowicz had encountered
one another at a mutual friend’s home. When Tonkowicz showed Sil-
ae a
friend had the other half of the purchase money in a room
on the floor above. Job said that a cocaine laboratory had
been set up in the bathroom of his friend’s room. Baron and
Job returned to the bar, where Baron retrieved his suitcase
from Cameron, an alleged compatriot. The. then went to
the elevator, to go to Job’s friend’s room to test the cocaine.
Several DEA agents got on the elevator with Baron and Job,
including Cameron. On leaving the elevator and starting
down the hallway, Job asked Baron if he was alone. Cam-
eron, who had left the elevator on the same floor, then
arrested Job. Job requested that they return to his room. A
pouch containing money was seized and opened when the
group returned to Job’s room. An airline ticket which fell
out of Job’s coat was also seized. Approximately $1,000
was taken from Job’s person.
Following Job’s arrest, agent Cameron attempted to lo-
cate Job’s partner, ‘‘Jack the accountant.’’ The hotel man-
agement provided information that the only single man
checking in on the same day as Job and occupying a room
on the floor above was registered as ‘‘Jim Freeman’’ and
was located in room #2417. Cameron proceeded to that
room, identified himself to Tavelman as a DEA agent in-
vestigating a narcotics arrest occurring earlier, and asked
to be admitted. Tavelman admitted Cameron, who was ac-
companied by four other agents, tc the room. In response
to Cameron’s questions, Tavelman admitted that he was an
accountant, had registered under a false name, had $22,000
cash in the room, and had traveled from Los Angeles on
the flight known by the agents to have been Job’s. Tavelman
denied knowledge of or involvement in the narcotics deal
under investigation. Tavelman refused Cameron's request
to search his bathroom and requested consultation with an
attorney. Cameron then arrested Tavelman and read him the
Miranda warnings. Tavelman’s attempts to contact his at-
il
torney were unsuccessful. After arrest, Tavelman consented
to the search. He took Cameron into the bathroom, where
a cocaine laboratory was found. He also produced a purse
with money in it and some cocaine. Cameron later testified
at trial that, during this time, Tavelman had told him that
if the cocaine tested out, “‘they were going to use the money
to buy the coke.’ Later, Job and Tavelman met in the
hallway of the DEA office. Job said, ‘‘Jack, I see they got
you, too. I just want you to know that they didn’t get you
through me.’’ Tavelman directed his response to Cameron.
The parties disagreed on that response: He asked either
““How did you get me?’’ or ‘‘How did you get that?”’
On August 9, 1979, Tavelman and Job were indicted in
the District of Nevada (1) for conspiracy to possess cocaine
with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1976) and (2) for interstate travel with
intent to distribute cocaine toward which end acts were
consummated in violation of 18 U.S.C. § 1952(a)(3)
(1976).
Tavelman’s and Job’s pretrial motions to dismiss under
Fed.R.Crim.P. 12(b) were denied in their entirety. Tavel-
man’s motion to suppress evidence obtained from his hotel
room, including his statements at that time, was denied in
its entirety. At the same pretrial hearing, Job’s motion to
suppress the pouch and money seized from his hotel room
was granted and his motion to suppress the airline ticket
was denied. Tavelman’s pretrial motion for a hearing to
determine the admissibility of confessions, admissions, and
assertive conduct, see 18 U.S.C. § 3501 (1976) (motion in
limine), was also denied.
A three-day jury trial, commencing on January 16, 1980,
resulted in convictions of both defendants on both counts
of the indictment. At trial defendants renewed their motions
to suppress the statements made by Tavelman in his hotel
a
room regarding the intended use of the money and by Job
and Tavelman in the DEA office. The court ruled that Tav-
elman’s statement in the hotel room would be excluded and
that Job’s and Tavelman’s statements in the DEA office
would be used only against the codefendant who made them.
Later, the court ordered the defendants’ statements at the
DEA office stricken from the record and admonished the
jury to disregard them. Defendants’ motions for acquittal
at the end of the prosecution’s case were denied. The mo-
tions for acquittal were converted into motions for mistrial
under Bruton from the three extrajudicial statements of the
defendants. The court denied the mistrial motions but ad-
monished the jury.
On February 25, 1980, Tavelman was sentenced to a five-
year term on Count ! with a special parole term of three
years under 21 U.S.C. § 960 (1976) and to a two-year term,
to run concurrently with that on Count I, and a $5,000 fine
on Count II. Job was sentenced on the same day to an eight-
year term on Count I with a special parole term of three
years under 21 U.S.C. § 960 (1976) and to a four-year term,
to run consecutively with that on Count I, on Count II.
Il. SUFFICIENCY OF THE INDICTMENTS
[1] An indictment must inform the defendant of ‘‘the
nature and cause of the accusation.’’ U.S.Const. amend.
VI. Accord, Fed.R.Crim.P. 7(c)(1); United States v. Cecil,
608 F.2d 1294, 1296 (9th Cir. 1979) (per curiam). An
indictment which tracks the offense in the words of the
statute is sufficient if those words fully, directly, and ex-
pressly set forth ail the elements necessary to constitute the
offense intended to be proved. Hamling v. United States,
418 U.S. 87, 117 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590
(1974). The indictments of Tavelman and Job contained the
specific dates of their alleged criminal violations, the stat-
ll antin
utory provisions under which the indictments issued, and
brief descriptions in statutory terms of the nature of the
criminal activity alleged.
A. Countl
Count I of the indictments alleged that Tavelman and Job
conspired, between July 12 and July 20, 1979 to possess
cocaine with intent to distribute it in violation of 21 U.S.C.
§$§ 841(a)(1), 846 (1976). Job and Tavelman contend that,
although the existence of a substantive count may substitute
for a definite statement of essential facts or overt acts, their
indictments failed either to contain a substantive count or
to allege essential facts or overt acts and were therefore
constitutionally defective.
[2-4] An indictment under 21 U.S.C. § 846 (1976) is
sufficient if it alleges:
a conspiracy to distribute drugs, the time during which
the conspiracy was operative and the statute allegedly
violated, even if it fails to allege or prove any specific
overt act in furtherance of the conspiracy.
United States v. Marable, 578 F.2d 151, 154 (Sth Cir.
1978), overruled on other grounds, United States v. Rod-
riguez, 612 F.2d 906, 919 & n.35 (Sth Cir.) (en banc) (by
implication), cert. denied, —— U.S. , 101 S.Ct.
108, 66 L.Ed.2d 41 (1980). Courts do not require as detailed
a statement of an offense’s elements under a conspiracy
count as under a substantive count. E. g., Wong Tai v.
United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301 71 L.Ed.
545 (1927); United States v. Pheaster, 544 F.2d 353, 360-
61 (9th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S.Ct.
1118, 51 L.Ed.2d 546 (1977). United States v. Cecil, 608
F.2d 1294, 1296-97 (9th Cir. 1979) (per curiam), on which
ot
defendants rely, is inapposite. The indictment in Cecil did
not place the conspiracies in any time frame whatsoever.
The Count I indictments were adequate.
B. Count Il
Count II of the indictments contained allegations that the
defendants, on or about July 20, 1979, traveled from Los
Angeles to Reno with intent to promote the unlawful activity
of possession with intent to distribute cocaine (in violation
of 21 U.S.C. § 841(a)(1) (1976)) and that, on that same
day, they committed acts facilitating that unlawful activity
in violation of 18 U.S.C. § 1952(a)(3) (1976). Job and
Tavelman contend that their indictments under Count II
were fatally defective because they failed to allege any spe-
cific overt acts committed in furtherance of the unlawful
intent.
[5, 6] An indictment under the Travel Act requires al-
legations of each of the three elements of the crime: (1)
interstate commerce or use of an interstate facility (2) with
intent to promote an unlawful activity and (3) a subsequent
overt act in furtherance of that unlawful activity. See, e. g.,
United States v. Wander, 601 F.2d 1251, 1258 (3d Cir.
1979); United States v. Polizzi, 500 F.2d 856, 897 (9th Cir.
1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42
L.Ed.2d 820 (1975). The indictments alleged that on July
20, 1979: (1) the defendants traveled interstate (between
Los Angeles and Reno); (2) with the intent to promote a
violation of 21 U.S.C. § 841(a)(1) (specifically the pos-
session of cocaine with intent to distribute); and (3) there-
after knowingly performed acts facilitating that unlawful
activity. These allegations are sufficient to state violations
of 18 U.S.C. § 1952(a)(3). We reject the defendants’ con-
tentions.
er
Ill. SEARCHES OF THE HOTEL ROOMS
A. The Search of Job’s Room
Job concedes that he requested, afier his arrest in the
hallway, that he and the agents return to his hotel room. He
contends, however, that he did not consent to a search of
his room and that the search was not supported by probabie
cause.
[7] Upon conflicting evidence, the trial court found that
Job had consented to the agents’ entry into his room and
that the airline ticket was in ‘‘plain view’’ when it was
seized, see generally Coolidge v. New Hampshire, 403 U.S.
443, 464-71, 91 S.Ct. 2022, 2037-40, 29 L.Ed.2d 564
(1971). The record supports that finding. It is not clearly
erroneous. See United States v. Page, 302 F.2d 81, 85 (9th
Cir. 1962) (en banc) (standard of review for admissibility
of evidence).
B. The Search of Tavelman’s Room
[8] Tavelman contends that, because the agents’ entry
into his room was without probable cause, the evidence
obtained there should have been suppressed under the Fourth
Amendment. We understand but reject the argument. The
court could properly find from the record that Tavelman
consented to the agents’ entry into his hotel room and to
their search.
[9] ‘*{W]hether a consent to search was in fact ‘vol-
untary” or was the product of duress or coercion, express
or implied, is a question of fact to be determined from the
totality of all the circumstances.’’ Schneckloth v. Busta-
monte, 412 U.S. 218, 227 93 S.Ct. 2041, 2047-48, 36
L.Ed.2d 854 (1973). A finding of consent by the trial judge
should be reversed only if, viewing the evidence in the light
most favorable to the government, this court concludes that
se ae
it is clearly erroneous. United States v. Wasserteil, 641 F.2d
704 at 707 (9th Cir. 1981) (quoting United States v.
O’ Looney, 544 F.2d 385, 388 (9th Cir.), cert. denied, 429
U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625 (1976)).
{10} Here, Tavelman gave indicia of consent when
Cameron came to his hotel room door and asked to be
admitted to question him about a recent narcotics arrest.
Tavelman’s election to contact his attorney at a time during
the interview when he may have reasonably suspected that
the investigation was focusing on him demonstrated an un-
derstanding of his Miranda rights. The burden is on Tav-
elman to show that the finding of consent was clearly er-
roneous. See, e. g., United States v. Townsend, 510 F.2d
1145, 1147 (9th Cir. 1975) (per curiam). He fails to carry
that burden.
IV. ADMISSIBILITY OF CODEFENDANTS’
STATEMENTS
[11] Both defendants contend that the admission of their
three extrajudicial statements violated their Sixth Amend-
ment right to confrontation as articulated in Bruton v. United
States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968). These three statements, which were admitted into
evidence at trial, were later ordered stricken from the record
by the district judge who then admonished the jury to dis-
regard them.
Cases subsequent to Bruton have distinguished — as ad-
missible — a codefendant’s admission which is a vague
reference from which guilt might be inferred from other
facts and evidence. See, e. g., United States v. Belle, 593
F.2d 487 493-96 (3d Cir.) (en banc), cert. denied, 442 U.S.
911, 99 S.Ct. 2825, 61 L.Ed.2d 277 (1979); United States
v. Wingate, 520 F.2d 309, 313-14 (2d Cir. 1975), cert.
denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84
a
(1976). Although the statements admitted here did serve to
tie Tavelman and Job to one another in the crime, they were
not incriminating without reference to other, admissible
evidence. Further, even if there was Bruton error, it was
harmless beyond a reasonable doubt, see United States v.
Longee, 603 F.2d 1342, 1345 (9th Cir. 1979), in light of
the nature of the statements, the striking of the statements
and instructions by the court, and the overwhelming ad-
missible evidence that also tied the defendants to one an-
other. That other admissible evidence included Silverman’s
testimony about the cocaine purchase by Job a month earlier
during which Tavelman was present; the identical Western
Airlines’ flight from Los Angeles to Reno (on which the
defendants occupied firstclass seats # #4A and 4C); Job’s
statements and conduct at the hotel indicating the floor on
which his friend was located; Tavelman’s admission that
he was an accountant, as Job had said, and from Los An-
geles; And the cocaine laboratory found, as Job said it would
be, in the bathroom of Tavelman’s room. See United States
v. Buckner, 610 F.2d 570, 574-75 (9th Cir. 1979), cert.
denied, 445 U.S. 961, 100 S.Ct. 1646, 64 L.Ed.2d 235
(1980).
V. ENTRAPMENT AND DUE
PROCESS CHALLENGES
[12-14] Both defendants contend that the government’s
role in ‘‘originating, conceptualizing, and engineering the
entire plan’’ was entrapment. The defendants’ entrapment
defense fails factually because of the evidence adduced at
trial. Government conduct which originates the criminal
design and implants it in the mind of an innocent or un-
willing defendant is entrapment. Sherman v. United States,
356 U.S. 369, 371-73, 78 S.Ct. 819, 820-21, 2 L.Ed.2d
848 (1958). To determine whether the government has im-
planted a criminal design in the mind of an otherwise in-
nocent defendant, the court considers:
the character or reputation of the defendant, including
any prior criminal record; whether the suggestion of
the criminal activity was initially made by the Gov-
ernment; whether the defendant was engaged in the
criminal activity for profit; whether the defendant ev-
idenced reluctance to commit the offense, overcome
only by repeated Government inducement or persua-
sion; and the nature of the inducement or persuasion
supplied by the Government.
United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th
Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56
L.Ed.2d 769 (1978). The record supports the finding that
there was no entrapment.
[15] Alternatively, the defendants argue that the gov-
ernment’s conduct in ‘‘originating, conceptualizing, and
engineering the entire plan’’ was so shocking that it should
offend the court’s *‘sense of justice.’’ The Third Circuit has
held that outrageous and overreaching police involvement
invalidated a conviction despite a showing of the defendant’s
predisposition. See United States v. Twigg, 588 F.2d 373,
378-80 (3d Cir. 1978). See also United States v. Borum,
584 F.2d 424 427-30 (D.C.Cir. 1978). Although the record
provides a basis for defendants’ argument, it also satisfies
us that the conduct complained of here does not reach that
extreme area in which it is “‘outrageous”’ or ‘‘grossly shock-
ing’’. See United States v. McQuin, 612 F.2d 1193, 1196
(9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63
L.Ed.2d 791 (1980); United States v. Smith, 538 F.2d 1359,
1531-62 (9th Cir. 1976).
VI. SUFFICIENCY OF THE TRAVEL ACT EVIDENCE
Defendants contend that the Travel Act contemplates con-
victions only for a continuous course of criminal conduct
in interstate commerce and that such a continuous course
jinn
was not shown by the evidence. Defendants rely primarily
on United States v. Donaway, 447 F.2d 940 (9th Cir. 1971).
In Donaway, a Ninth Circuit pane! found the placing of one
bet to be a ‘‘sporadic casual involvement’’ in, rather than
a “‘continuous course’’ of, criminal activity proscribed by
the Travel Act. Jd. at 944.
[16-19] Neither evidence of large-scale operations nor
long-term duration is required to support a Travel Act con-
viction. United States v. Cozzetti, 441 F.2d 344, 348 (9th
Cir. 1971). instead, what must be shown is evidence of a
continuous enterprise and one act in interstate commerce
in furtherance of that enterprise. See United States v.
Teemer, 214 F.Supp. 952, 958 (N.D.W.Va.1963). Con-
sidering the quantity of cocaine involved in the prior trans-
action proved at trial, the jury could reasonably find a con-
tinuous course of criminal activity. Viewing the evidence
in the light most favorable to the verdict, we do not find
clear error. See United States v. Anderson, 642 F.2d 281
at 284 (9th Cir. 1981). The defendants also contend that the
evidence did not show a ‘‘continuous’’ use of interstate
facilities. The statute does not, however, require such proof.
Once a showing of a continuous enterprise is made, a show-
ing of one transaction in interstate commerce is sufficient
to sustain a conviction under section 1952(a). See, e. g.,
United States v. Teemer, 214 F.Supp. at 958. We reject the
defendants’ contention.
Vil. PROPRIETY OF SENTENCES
AND SPECIAL PAROLE TERMS
A. Job's Sentence
Job contends first that he was incorrectly sentenced under
21 U.S.C. § 960 (1976), rather than under 21 U.S.C. § 846
(1976), on Count I. We reject the contention. He was not
ts...
sentenced under 21 U.S.C. § 960 (1976), but only given
a special parole term under that provision.
[20-22] Job also contends that his consecutive sentences
were illegally imposed because they arose from a single
transaction and identical facts and because a conspiracy is
not an offense punishable separately from one under the
Travel Act. See lannelli v. United States, 420 U.S. 770,
785 n. 17, 95 S.Ct. 1284, 1293 n.17, 43 L.Ed.2d 616
(1975); United States v. Kearney, 560 F.2d 1358, 1365-67
(9th Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54
L.Ed.2d 460 (1977). Proof of a violation of 21 U.S.C.
§ 846 requires showing the elements of (1) an agreement
to violate the statute (2) with intent to commit the underlying
substantive offense and (3) a subsequent overt act in fur-
therance of that agreement. E. g., United States v. Melchor-
Lopez, 627 F.2d 886, 890 (9th Cir. 1980). Proof of a vi-
olation of 18 U.S.C. §1952 requires showing the elements
of (1) interstate travel or use of an interstate facility (2) with
intent to promote an unlawful activity and (3) an overt act
in furtherance of the unlawful activity. United States v.
Wander, 601 F.2d 1251, 1258 (3d Cir. 1979). The interstate
element of section 1952 is not required under section 846
and the agreement element of section 846 is not required
under section 1952. In the special context of narcotics of-
fenses, we have recently held that convictions for conspiracy
and the substantive offense under 21 U.S.C. §§ 841(a)(1),
846 (1976) are permissible. United States v. Wylie 625
F.2d 1371, 1381 (9th Cir. 1980), cert. denied, _ U.S.
——, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). By analogy
from Wylie, we uphold the convictions for conspiracy and
Travel Act violations. See United States v. Stevens, 612
F.2d 1226, 1231 (10th Cir. 1979), cert. denied, 447 U.S.
921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980).
rcs a
B. Both Defendants’ Special Parole Terms
[23] Job argues, and the government concedes, that the
special parole terms imposed on both defendants under 21
U.S.C. § 846 (Count I) are improper under Bifulco v. United
States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205
(1980). In Bifulco, the Supreme Court held that section 846
does not authorize the sentencing court to impose a special
parole term’ on a defendant convicted of conspiracy to man-
ufacture or distribute a controlled substance. Jd. at 400-01,
100 S.Ct. at 2259. We therefore vacate the special! parole
terms imposed on both defendants.
Affirmed in part and vacated in part.
ot
APPENDIX B.
Order of the United States Court of Appeals for the
Ninth Circuit Rendered September 25, 1981.
United States Court of Appeals for the Ninth Circuit.
United States of America, Plaintiff-Appellee, v. Jack
Wilbur Tavelman, Defendant-Appellant.
United States of America, Plaintiff-Appellee, v. Steven
Job, Defendant-Appellant. Nos. 80-1128, 80-1129.
Filed: September 25, 1981.
Before: SKOPIL. and FARRIS, Circuit Judges, and
BELLONI,* District Judge.
The panel as constituted in the above case has voted to
deny the petitions for rehearing of appellants Tavelman and
Job. Judge Skopil and Judge Farris have voted to reject
appellant Job’s suggestion for rehearing en banc.
The opinion filed July 13, 1981 shall be amended as
follows: Add the following paragraph after the first full
paragraph on page 3548 of the slip opinion.
Nor are Tavelman’s Fifth Amendment objections
compelling. Even if he preserved them on the record,
the district court’s determination that Tavelman was
not in custody prior to his formal arrest was not clearly
erroneous.
The full court has been advised of the proposal to amend
the opinion, and of appellant Job’s suggestion for en banc
rehearing, and no judge has objected to the amendment or
requested a vote on the suggestion for rehearing en banc.
Fed. R. App. 35(b).
*Honorable Robert C. Belloni, United States District Judge for the
District of Oregon, sitting by designation.
ii.
The petitions for rehearing are denied and appellant Job's
suggestion for rehearing en banc is rejected. The opinion
filed July 13, 1981 is amended as set forth above.
7, late
APPENDIX C.
Order of the Trial Court Rendered December 12, 1979.
In the United States District Court for the District of
Nevada.
United States of America, Plaintiff, vs. Jack Wilburn
Tavelman, Steven Job and Sheldon Scott Silverman, De-
fendants. CR-R-79-39-ECR. }
Filed: December 12, 1979.
The Motion of defendant Jack Wilburn Tavelman, here-
inafter referred to as ‘“Tavelman’’, for Return of Seized
Property and the Suppression of Evidence, filed herein on
October 2, 1979, came on for hearing before this Court on
November 19 and 20, 1979. The Court heard testimony and
received other evidence, and considered the argument of
counsel.
On July 20, 1979, defendant Job was arrested in the
M.G.M. Grand Hotel, Reno, Nevada, on a narcotics charge.
Drug Enforcement Administration agent Dennis Cameron,
at least two either agents azd a hotel security officer then
went to a suite on the 24th floor where it was believed an
accomplice of Job was staying. They were armed. Tavelman
answered Cameron’s knock on the door. Cameron identified
himself and showed his credentials as a DEA agent. He told
Taveiman that the latter’s suite number had come up during
a drug arrest on a lower floor of the Hotel, and asked to
discuss the matter. Tavelman invited Cameron into the suite.
Cameron then asked permission for the other agents in the
hallway to come into the suite, and permission was granted
by Tavelman.
Agent Cameron asked for identification, and Tavelman
produced his passport and driver’s license. Upon being told
that Tavelman had flown into Reno from Los Angeles,
Cameron asked to see the airline ticket. Tavelman produced
a Western Airlines ticket. Upon being asked if he had a
large sum of money with him, Tavelman acknowledged
having approximately $22,000, which he said he had
brought for gambling purposes.
Next, agent Cameron told Tavelman that a cocaine testing
laboratory was supposed to be in the bathroom of the suite
of the person suspected of being involved in the drug in-
cident that had led to the arrest on the lower floor of the
Hotel. Cameron asked whether Tavelman’s bathroom could
be searched.
Tavelman responded in the negative, saying that the mat-
ter was too serious for him to cope with alone. He said that
he needed an attorney. Cameron said that was okay, for he
would just get a search warrant. Then he placed Tavelman
under arrest for conspiring to possess and distribute cocaine.
The Miranda warnings were read.
Tavelman attempted to reach his Los Angeles area at-
torney by telephone, but was unsuccessful. He also was
unable to reach that attorney’s associate by phone. Then he
called Cameron to the living room area, out of earshot of
the other agents, and asked whether his problems might be
mitigated if he cooperated. Cameron answered that any co-
operation would be made known to the U.S. Attorney.
Then Tavelman declared that he was being treated like
a gentleman, therefore he would show the agents what they
were looking for. He opened the door to the bathroom and
led the agents in. There, he pointed out a cocaine testing
laboratory. Tavelman then went to the bedroom and picked
up a pouch containing the money. He turned it over to an
agent. Three small vials of cocaine were also produced by
Tavelman, as well as a puzzle book with one page missing.
At Tavelman’s request, Cameron allowed him to call
room service and order a steak. Tavelman ate the steak and
a a
took two drinks of scotch before being transported to DEA’s
Reno headquarters.
The primary issue here involved is whether Tavelman
waived his right to consult with an attorney, after first de-
claring that he felt he needed one and twice trying unsuc-
cessfully to reach one by telephone. Discussion of this issue
necessarily starts with the case Miranda v. Arizona, 384
U.S. 436 (1966). The case holds that the prosecution may
not use any statements stemming from custodial interro-
gation of a defendant unless the prosecution shows it used
procedural safeguards effective to secure the privilege
against self-incrimination. ‘‘Custodial interrogation’’ is de-
fined as ‘‘questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.”’
Id., at 444. Statements made by a person during interro-
gation that is not custodial (e.g., investigational), are not
excludable under the Miranda rule. United States v. Rose,
570 F.2d 1358 (9th Cir. 1978).
The Miranda rule as concerns a defendant’s request for
an attorney is as follows (384 U.S. 474):
“If the individual states that he wants an attorney, the
interrogation must cease until an attorney is present.
At that time, the individual must have an opportunity
to confer with the attorney and to have him present
during any subsequent questioning. If the individual
cannot obtain an attorney and he indicates that he wants
one before speaking to police, they must respect his
decision to remain silent.
“*If authorities conclude that they will not provide
counsel during a reasonable period of time in which
investigation in the field is carried out, they may refrain
from doing so without violating the person’s Fifth
sineliiaie
Amendment privilege so long as they do not question
him during that time.”’
The Miranda rule is concerired with the Fifth Amendment
privilege against self-incrimination. The opinion declares
that the failure to honor a defendant’s request for an attorney
undermines the exercise of that privilege (either to remain
silent or to speak without intimidation). Thus, the presence
of an attorney during such interrogation protects the defen-
dant’s rights subsequently at trial by enhancing the integrity
of the fact-finding processes in court. Further, the lawyer’s
presence helps guard against overreaching by the police and
ensures that any statements actually obtained are accurately
transcribed for presentation into evidence. Fare v. Michael
C., 99 S. Ct. 2560 (1979).
After the defendant has elected to exercise his right to
counsel, the interview must be terminated as to that person’s
guilt or innocence, but may be continued as to other matters.
Miranda, supra, at p. 485. If the person is indecisive in his
request for counsel, the interviewing law enforcement agent
must exercise his own judgment in determining whether the
right to counsel is being exercised or waived. The standard
for waiver is necessarily high, however. Id., at pp.485-486.
Further questioning by the agent directed only to clarifi-
cation of the defendant’s wishes is not forbidden. Pierce
v. Cardwell, 572 F.2d 1339 (9th Cir. 1978); Nash v. Estelle,
597 F.2d 513 (Sth Cir. 1979).
Subsequent to the giving of the Miranda warnings and
the defendant being given the opportunity to exercise his
rights thereunder, the defendant. . .“‘may knowingly and
intelligently waive these rights and agree to answer ques-
tions or make a statement.’’ Miranda, at 436 U.S. 479. The
right to waive has been recognized consistently as to the
defendant’s entitlement to counsel. See Brewer v. Williams,
430 U.S. 387 (1977); United States v. Rose, 570 F.2d 1358
ae, |
(9th Cir. 1978). Moreover, such waiver may be implied,
rather than express. North Carolina v. Butler, 99 S.Ct. 1755
(1979); Pierce v. Cardwell, 572 F.2d 1339 (9th Cir. 1978).
The foregoing notwithstanding, any evidence that the ac-
cused was threatened, tricked or cajoled into a waiver will
show that he did not voluntarily waive his privilege. Mi-
randa v. Arizona, supra. Miranda further points out that a
valid waiver will not be presumed simply from the silence
of the accused after warnings are given or from the fact that
a confession was eventually obtained. The opinion empha-
sizes, it should be noted, that Miranda does not affect vol-
unteered statements (as contrasted to statements obtained
during custodial interrogation). Volunteered statements are
not barred by the Fifth Amendment privilege against self-
incrimination. Thus, when an accused initiates or reinitiates
the conversation, his statements are admissible. United
States v. Rieves, 584 F.2d 740 (Sth Cir. 1978).
The Circuit Courts of Appeal split as to whether a suspect
in a criminal investigation could waive his right to counsel
after initially making known his desire to have the assistance
of counsel. The ‘‘per se’’ rule was that, in such a case, no
waiver could be effective until after the accused had con-
sulted with counsel. The Ninth Circuit’s opinions lacked
consistency until the issue was considered en banc in the
case of United States v. Rodriguez-Gastelum, 569 F.2d 482
(1978). There, the accused had been ambiguous as to his
desire to consult with an attorney. The interrogating Drug
Enforcement Administration officer asked, after giving the
Miranda warnings, if the defendant wanted to talk. The
defendant answered: *‘Okay, okay, but with an attorney.”’
The DEA officer then asked if the defendant wanted. . .*‘to
talk to me now without any attorney?’’ The answer was,
**That’s fine.’ The Court eventually heid that the defendant
had waived his prior request for the assistance of counsel.
=
Its discussion of various sub-issues is informative and in-
teresting. First, the burden is greater when the Government
attempts to show a waiver after the right to counsel has been
asserted, as contrasted to when the Government attempts
to show a waiver of the right to remain silent.
The Rodriguez Court then rejected the “‘per se’’ rule,
thereby holding that an accused could knowingly, intelli-
gently and voluntarily waive his previously asserted right
to consult with counsel, without first having talked to an
attorney. It was felt that the contrary result would imprison
a man in his privileges and create absurd situations, so that
Miranda should more realistically be applied with flexibility
and realism.
The opinion then quotes from Johnson v. Zerbst, 304 U.
S. 458, 464 (1938) and Brewer v. Williams, 430 U. S. 387,
404 (1977) that:
**A waiver is ordinarily an intentional relinquishment
or abandonment of a known right or privilege. The
determination of whether there has been intelligent
waiver of the right to counsel must depend, in each
case, upon the particular facts and circumstances sur-
rounding that case, including the background, expe-
rience and conduct of the accused.’’ 569 F.2d, at 488.
Rodriguez notes that all communication between the of-
ficer and the defendant is not barred after assertion of the
right to counsel. The officer may inform the defendant of
circumstances which might contribute to an intelligent
exercise of his judgment.
Six judges concurred wholly with the Rodriguez majority
opinion, whereas two dissented and three others concurred
in part and dissented in part.
Getting away from the Rodriguez case, and discussing
waiver of Constitutional rights (such as the right to counsel),
the cardinal rule is that courts should indulge in every rea-
a, ,
sonable presumption against waiver. Brewer v. Williams,
supra; Brookhart v. Janis, 384 U. S. 1 (1966); Nash v.
Estelle, 597 F.2d 513 (Sth Cir. 1979).
The defendant’s mental and physical state are critical
factors in determining waiver. Pierce v. Cardwell, supra.
The same case declares that intoxication may render a de-
fendant incapable of voluntary, knowing and intelligent
waiver.
Footnote 5 of United States v. Washington, 431 U.S. 181
(1977) is to a statement in the body of the opinion that,
unless the record reveals some compulsion, a defendant's
self-incriminating statements are not in conflict with any
constitutional guarantees and are, in fact, inherently cesir-
able. The footnote reads as follows, at page 187:
**In Miranda, the Court saw as inherently coercive any
police custodial interrogation conducted by isolating
the suspect with police officers; therefore, the Court
established a per se rule that all incriminating state-
ments made during such interrogation are barred as
‘compelled.’ All Miranda’ s safeguards, which are de-
signed to avoid the coercive atmosphere, rest on the
overbearing compulsion which the Court thought was
caused by isolation of a suspect in police custody.”’
(citations omitted).
What the case holds, however, is that the giving of the
comprehensive Miranda warnings dissipates any element of
compulsion to self-incriminate.
The mere fact that a defendant answers questions put to
him after requesting an attorney will not support a pre-
sumption that he has waived that right. Pierce v. Cardwell,
572 F.2d 1339 (9th Cir. 1978). In fact, once an accused
has expressed his own view that he is not competent to deal
with the authorities without legal advice, a later decision
at the authorities’ insistence to make a statement without
oer Se
counsel’s presence may properly be viewed with skepticism.
Brewer v. Williams, 430 U. S. 387 (1977).
On the other hand, once a suspect has agreed to waive
his right to counsel and to cooperate with government
agents, it is not surprising that he may later develop doubts.
Such doubts should not automatically bring to a halt further
investigatory endeavors. United States v. Rose, 570 F.2d
1358 (9th Cir. 1978).
A suspect may, if he chooses, selectively waive his Fifth
Amendment rights by indicating he will respond to some
questions, but not to others. United States v. Lorenzo, 570
F.2d 294 (9th Cir. 1978).
A continued willingness to respond to questions tends to
contradict a claim that the accused had revoked his earlier
waiver. See United States v. Ford, 563 F.2d 1366 (9th Cir.
1977), cert. den. 434 U.S. 1021.
Although Miranda requires law enforcement agents to
cease all interrogation of the accused as to his guilt or
innocence immediately upon his request for the assistance
of counsel, neither immediate access to an attorney nor the
immediate furnishing of an attorney is required. United
States v. Evans, 575 F.2d 1286 (9th Cir. 1978), cert. den.
99 S.Ct. 165; United States v. Rieves, 584 F.2d 740 (Sth
Cir. 1978). In Evans the regular screening procedure for all
persons seeking to enter a military base without a pass was
followed, taking between ten and twenty minutes of time.
In Rieves it is stated that making an attorney available when
the defendant arrives at jail satisfies Miranda. The presence
of substitute counsel may suffice when the notification and
presence of the accused’s own counsel would result in prej-
udicial delay. United States v. Wade, 388 U.S. 218 (1967).
A lawyer is uniquely able to protect the accused from
self-incrimination once the later becomes enmeshed in the
a
adversarial process. Counsel’s presence during interrogation
is indispensable for that reason, as well as to guard against
overreaching by the police and to assure accurate transcrip-
tion of any statements actually made. Fare v. Michael C.,
99 S.Ct. 2560 (1979). It follows that where interrogation
follows hard on the heels of a demand for counsel, the
defendant’s right to have questioning cease has been vio-
lated. United States v. Nixon, 571 F.2d 1121 (9th Cir.
1978). When the police do stop interrogation, as required,
any admissions that later come at the initiative of the accused
are subject to the traditional analysis for voluntariness. Nash
v. Estelle, 597 F.2d 5i3 Cir. 1979).
The mere threat by the officer to obtain a search warrant
does not constitute coercion. United States v. Gaultney, 581
F.2d 1137 (Sth Cir. 1978).
Advice from the police to the accused intended only to
contribute to his fair evaluation of his situation and to aid
in his decision as to consulting with counsel is permissible.
United States v. Rose, 570 F.2d 1358 (9th Cir. 1978). There
is a distinction between questioning a suspect and presenting
evidence to him; the police are allowed to present incrim-
inating evidence to the suspect even after a request for an
attorney has been made. Pierce v. Cardwell, 572 F.2d 1339
(9th Cir. 1978). The Government agent’s promise to make
known to the Court any cooperation on the defendant’s part
is neither interrogation nor coercion. United States v.
Rieves, supra.
Where a Miranda rule has been violated, evidence thereby
obtained is inadmissible in the prosecution’s case in chief.
Nevertheless, such evidence may be used for impeachment
purposes. Were it otherwise, the protection of constitutional
rights would encourage perjury by allowing the defendant
to testify falsely without fear of impeachment by statements
he had previously made. Oregon v. Hass, 420 U.S. 714
a
(1975); Harris v. New York, 401 U.S. 222 (1971). However,
the right of the prosecution to use such statements is denied
when they were involuntary or coerced. Oregon v. Hass,
supra. Whether the officer’s conduct amounts to an abuse
is determined by the traditional standards for evaluating
voluntariness and trustworthiness. Id. The utilization of in-
voluntary or coerced statements would amount to a denial
of due process of law. New Jersey v. Portash, 99 S.Ct.
1292 (1979).
The Court finds that Tavelman not only consented to the
search of his suite, bu’ actually assisted in turning over to
the agents the various items of evidence they seized.
Further, the Court finds that what Tavelman told the
agents was disclosed voluntarily, in conversation initiated
by him. His statements were not made during custodial
interrogation. Although he originally decided to exercise his
Miranda right to consult with an attorney, his subsequent
acts reflect a knowing, intelligent and voluntary waiver of
that right. Apparently, he had decided to try to make the
best of a bad situation by following the course of cooperation
with the arresting officers.
Therefore, the Court hereby orders that Tavelman’s Mo-
tion for the Return of Seized Property and the Suppression
of Evidence be denied in its entirety.
DATED: December 12. 1979.
/s/ Edward C. Reed
UNITED STATES DISTRICT JUDGE
cer, val
APPENDIX D.
Order of the Trial Court Rendered January 10, 1980.
In the United States District Court for the District of
Nevada.
United States of America, Plaintiff, vs. Jack Wilbur Tav-
elman, Steven Job and Sheldon Scott Silverman, Defen-
dants. CR-R-79-39-ECR.
Filed: January 10, 1980.
Defendants Jack Wilbur Tavelman and Steven Job have
filed a motion in limine for a determination of the volun-
tariness of all confessions and assertive conduct of guilt,
pursuant to 18 U.S.C. Sec. 3501.
In the supporting Points and Authorities, at page 4, lines
27-29, the movants state: ‘““TAVELMAN’s statements were
made after arrest in his room, and JOB’s in the police station
As to defendant Tavelman, a Motion for the Return of
Seized Property and the Suppression of Evidence was filed
on his behalf on October 2, 1979. It asked, inter alia, his
observations and statements be suppressed. A hearing was
held on November 19 and 20, 1979, and an Order entered
on December 12, 1979, denying the Motion in its entirety.
Said Order found that any statements made by him in his
room, after arrest, were made voluntarily and not during
custodial interrogation. Thus, the instant motion in limine
has already been decided on the merits adversely to defen-
dant Tavelman as to any statements or assertive conduct in
his room.
As to defendant Job, the aforementioned Order of De-
cember 12, 1979, did not deal with any statements made
in a police station after arrest.
— we
NOW, THEREFORE, IT IS HEREBY ORDERED as
follows:
1. Defendant Tavelman’s motion is denied as to any state-
ments or assertive conduct of guilt in his hotel room after
his arrest.
Defendant Job’s motion is granted, and the Clerk of Court
shall set a time for hearing the same, either prior to the trial
of this action or outside the hearing of the jury if trial has
commenced; and
3. To the extent defendant Tavelman’s motion compre-
hends any statements or assertive conduct of guilt outside
his hotel room and after his arrest, the same shall be heard
simultaneously with the hearing on defendant Job’s motion.
DATED: January 10, 1980.
/s/ Edward C. Reed
UNITED STATES DISTRICT JUDGE.
oo
APPENDIX E.
Amendment IV.
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated; and no Warrants shall
issue but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched,
and the persons or things to be seized.
28.
APPENDIX F.
Amendment V.
No person shall be held to answer for a capital, or oth-
erwise infamous crime, unless on a presentment or indict-
ment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or
property without due process of law; nor shall private prop-
erty be taken for public use, without just compensation.
pr
APPENDIX G.
United States Code, Title 18, Section 1952.
(a) Whoever travels in interstate or foreign commerce
or uses any facility in interstate or foreign commerce, in-
cluding the mail, with intent to—
(1) distribute the proceeds of any unlawful activity;
or
(2) commit any crime of violence to further any un-
lawful activity; or
(3) otherwise promote, manage, establish, carry on
or facilitate the promotion, management, estab-
lishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the
acts specified in subparagraphs (1), (2), and (3), shall be
fined not more than $10,000 or imprisoned for not more
than five years, or both.
(b) As used in this section ‘‘unlawful activity’’ means
(1) any business enterprise involving gambling, liquor on
which the Federal excise tax has not been paid, narcotics
or controlled substances (as defined in section 102 (b) of
the Controlled Substances Act [21 USC §802 (b)], or pros-
titution offenses in violation of the laws of the State in which
they are committed or of the United States, or (2) extortion,
bribery, or arson in violation of the laws of the State in
which committed or of the United States.
(c) Investigation of violation under this section involv-
ing liquor shall be conducted under the supervision of the
Secretary of the Treasury.
ann
APPENDIX H.
United States Code, Title 18, Section 3501 (a) & (b).
(a) In any criminal prosecution brought by the United
States or by the District of Columbia, a confession, as de-
fined in subsection (e) hereof, shall be admissible in evi-
dence if it is voluntarily given. Before such confession is
received in evidence, the trial judge shall, out of the pres-
ence of the jury, determine any issue as to voluntariness.
If the trial judge determines that the confession was vol-
untarily made it shall be admitted in evidence and the trial
judge shall permit the jury to hear relevant evidence on the
issue of voluntariness and shall instruct the jury to give such
weight to the confession as the jury feels it deserves under
all the circumstances.
(b) The trial judge in determining the issue of volun-
tariness shall take into consideration all the circumstances
surrounding the giving of the confession, including (10 the
time elapsing between the arrest and arraignment of the
defendant making the confession, if it was made after arrest
and before arraignment, (2) whether such defendant knew
the nature of the offense with which he was charged or of
which he was suspected at the time of making the confes-
sion, (3) whether or not such defendant was advised or knew
that he was not required to make any statement and that any
such statement could be used against him, (4) whether or
not such defendant had been advised prior to questioning
of his right to the assistance of counsel; and (5) whether or
not such defendant was without the assistance of counsel
when questioned and when giving such confession.
Ss
APPENDIX I.
United States Code, Title 21, Section 846.
Any person who attempts or conspires to commit any
offense defined in this subchapter is punishable by impris-
onment or fine or both which may not exceed the maximum
punishment prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.
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: STEVEN JOB, PETITIONER
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QUESTIONS PRESENTED
1. Whether the involvement of government agents in the
criminal scheme bars petitioners’ convictions (Nos. 81-846
and 81-944).
2. Whether petitioner Tavelman’s pre-arrest or post-
arrest statements were improperly admitted into evidence.
3. Whether there was probable cause for petitioner
Tavelman’s arrest.
4. Whether petitioner Tavelman’s consent to a search of
a bathroom laboratory in his hotel room was voluntary.
5. Whether impossibility can serve as a defense to a
charge of conspiracy to possess a controlled substance (No.
81-944).
(I)
TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES
Cases:
Beckwith v. United States, 425 U.S. 341 ....... 10
Berenyi v. Immigration Director, 385 U.S.
TL HO4b.60456 bb concedocccccccesacecosoces 13
Bifulco v. United States, 447 U.S. 381 .......... 2
Edwards v. Arizona, No. 79-5269
DUE 6 aineecedcceleocedeceencs 10, 11
Miranda v. Arizona, 384 U.S. 436 .......... 9, 10
Oregon v. Mathiason, 429 U.S. 492 ............ 9
Orozco v. Texas, 394 U.S. 324 ......cceceeees 10
Rhode Island vy. Innis, 446 U.S. 291 ........... 11
Schneckloth v. Bustamonte, 412 U.S. 218 ...... 13
United States v. Bobo, 586 F. 2d 355,
cert. denied, 440 U.S. 976 ............05. 14, 15
United States v. Borum, 584 F. 2d 424 ......... 7
United States v. Feola, 420 U.S. 671 .......... 14
United States v. Kellerman, 431 F. 2d 319,
ort. Gentes, 400 U.S. 957 2. cccccccccccccce 14
IV
Page
Cases—(Continued):
United States v. Marx, 635 F. 24 436 ......... 14
United States v. Reliable Transfer Co.,
SL ST nbdcveccscscctaseevednou@iens 13
United States v. Rieves, 584 F.2d 740 ..... 10-11
United States v. Rose, 570 F. 2d 1358 ......... 11
United States v. Rueter, 536 F.2d 296 ........ 14
United States v. Russell, 411 U.S. 423 .......... 6
United States v. Sanford, 547 F. 2d 1085 ...... 14
United States v. Shoup, 608 F.2d 950 ........ 14
United States v. Twigg, 588 F. 2d 373 .......... 7
Constitution and statutes:
United States Constitution, Fifth
PEE 2S cone csdipecccccesWocbheedes 8, 10
Ck PPP ee 2
BP IED cS evcduccovccccteesapectenens 2, 14
Miscellaneous:
W. LaFave & A. Scott, Criminal Law
SEPT dbuGb obshies o0o6ece socbnbs teceoennee 14
Inu the Supreme Court of the United States
OcTOBER TERM, 1981
No. 81-846
JACK WILBUR TAVELMAN, PETITIONER
Vv.
UNITED STATES OF AMERICA
No. 81-944
STEVEN JOB, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-15)! is
reported at 650 F. 2d 1133. The district court's orders of
December 12, 1979, and January 10, 1980 (Pet. App. 17-28)
are not reported.
JURISDICTION
The judgment of the court of appeals was entered on July
13, 1981, and amended on September 25, 1981. Petitions for
Pet. App.” refers to the appendix to the petition in No. 81-846.
l
2
rehearing were denied on September 25, 1981 (Pet. App.
15-16). The petition for a writ of certiorari in No. 81-846
was filed on November 3, 1981, and the petition for a writ of
certiorari in No. 81-944 was filed on November 16, 1981.
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the District of Nevada, petitioners were convicted of
conspiracy to possess cocaine with intent to distribute it, in
violation of 21 U.S.C. 846 (Count 1), and interstate travel in
aid of a racketeering enterprise, in violation of 18 U.S.C.
1952(aX(3) (Count II). Tavelman was sentenced to five
years’ imprisonment on Count I, and sentenced toa concur-
rent term of three years’ imprisonment and fined $5,000 on
Count II. Job was sentenced to eight years’ imprisonment
on Count I and four years’ imprisonment on Count II, to
run consecutively. Both petitioners also were sentenced to
special parole terms of three years, which were vacated by
the court of appeals in accordance with Bifulco v. United
States, 447 U.S. 381 (1980). In all other respects, the court
of appeals affirmed (7et. App. 1-15).
The evidence adduced at trial, which is summarized in the
court of appeals’ opinion (Pet. App. i-4), showed that
Bruce Baron, then an inmate of the Douglas County, Nev-
ada jail, contacted DEA Agent Dennis Cameron in Reno,
Nevada, and offered to assist the agency in apprehending
persons involved in the distribution of illicit drugs. Cameron
accepted Baron’s offer. After Baron informed Cameron
that he had been approached by Mark Meekins, a middle-
man who was looking for a source of large quantities of
cocaine, Cameron, in order to enhance Baron’s image as a
cocaine dealer, supplied Baron with photographs showing
Baron carrying large bags filled with what appeared to be
3
cocaine. Baron then met with Meekins and told him that he
knew of an available supply of cocaine.
In July 1979, Meekins introduced Baron to Shelley Sil-
verman (Pet. App. 1-2; Tr. 106-109, 281-285). Over the next
few days, Silverman, who also was a middleman, made a
number of telephone calls to petitioner Job to see if Job was
interested in purchasing cocaine from Baron in Reno,
where Baron’s “source” was located. Baron later met with
Job in Job’s North Hollywood, California house. Job
expressed interest in purchasing cocaine from Baron after
he had disposed of a kilo of cocaine already in his posses-
sion, but only if Baron’s cocaine was of 91% or better purity.
The parties agreed that if Baron could acquire cocaine of
that quality, Job would pay $27,000 per pound (Pet. App. 2;
Tr. 111-116, 285).
Baron returned to Reno and negotiated the sale with Job
in taped telephone conversations that took place over the
next several days. Job explained that his friend Jack, an
accountant, was going to test Baron’s cocaine and would
put up part of the purchase money (Pet. App. 2; Tr. 120-
123, 287-290).
Baron and Job agreed that they and Job’s partner would
meet in Reno on July 20, 1979 (Tr. 125-126, 293). Agent
Cameron gave Baron two bags of procaine, a non-narcotic
?At trial Silverman testified that this was not the first cocaine trans-
action he had had with Job. One month earlier, a man known as “Tea
Bags” had offered to sell Silverman one pound of cocaine. Silverman
called Job, who expressed a willingness to buy the cocaine if he could
test a sample of the drug first. After doing so, Job told Silverman that he
had a partner and that he needed time to get the purchase money. A few
days later, Silverman returned to Job's house with “Tea Bags,” and Job
tested the cocaine again. Job then spoke with someone on the tele-
phone, and, a few minutes later, petitioner Tavelman arrived. Tavelman
and Job went into a back bedroom, from which Job emerged with
between $27,000 and $29,000 in cash, which he paid “Tea Bags™ (Pet.
App. 2 n.1; Tr. 70-78).
4
substance that looks like cocaine, and Baron and Cameron,
who posed as Baron’s compatriot, subsequently met Job in
a Reno hotel (Tr. 293, 295). After Baron permitted Job to
see the procaine, Job took Baron to his room so that Baron
could see the $24,000 in cash, which was one half of the
purchase price. Job explained that his friend had the other
half of the purchase money and a cocaine testing laboratory
set up in the bathroom of his room on the floor above. After
seeing the cash, Baron retrieved the procaine from
Cameron, who had been waiting in the hotel bar. The three
men, along with another DEA agent, then got on an eleva-
tor to go to Tavelman’s room to test the cocaine. When Job
got out of the elevator on the 24th floor, he realized that he
was being followed. Agent Cameron then arrested Job, and
Job asked the agents to take him back to his room. Before
doing so, the agents seized a pouch of money from Job. In
Job’s room, Cameron seized an airline ticket that fell from
Job’s coat and approximately $1,000 in cash (Pet. App. 2-3;
Tr. 293-296, 302-303, 306-308).
’
Cameron then consulted with hotel management in an
attempt to locate Job’s partner. Cameron concluded that
Tavelman was likely to be located in Room 2417, and he
proceeded to that room. He knocked on the door, identified
himself to Tavelman as a DEA agent investigating a narcot-
ics offense and asked to be admitted. Petitioner Tavelman
admitted Cameron and, at Cameron’s request, also admit-
ted two agents and one hotel security officer (Pet. App. 3;
Tr. 312-313; H. Tr. 132-137).3
During the conversation that followed, Tavelman admit-
ted that he was an accountant, that he had registered under
a false name, that he had $22,000 in cash in the room and
that he had flown from Los Angeles on what the agents
3No agent had his gun drawn when he entered the room (H. Tr. 132,
134, 136)(“H. Tr.” refers to the suppression hearing held on November
19 and 20, 1979).
5
knew was the same flight Job had taken (Pet. App. 3; Tr.
312-317; H. Tr. 138-139). Cameron explained that they
were looking for an individual who had a cocaine testing
laboratory set up in the bathroom and asked if he could
search Tavelman’s bathroom. Tavelman declined and said
that he wanted to consult with an attorney. Agent Cameron
then placed him under arrest and advised him of his
Miranda rights (Pet. App. 3; Tr. 314-317; H. Tr. 138-140,
144).
After Tavelman had unsuccessfully attempted to contact
his attorney, he asked Cameron whether he could “help
himself” by cooperating. Cameron replied that the only
answer he could give Tavelman was that anything he did to
help would be made known to the United States Attorney.
Tavelman again inquired whether it would be beneficial to
him if he consented to a search of the bathroom, to which
Cameron responded that if he found what he expected to
find a search would not be in Tavelman’s best interests.
Cameron advised Tavelman that he was going to attempt to
obtain a search warrant, a process that would take severa!
hours, and that if Tave!nian consented to a search it would
be a concession only to Cameron, to save him some time.
Tavelman then stated that since he was being treated like a
gentleman, he would show Cameron what he was looking
for. Tavelman led Cameron to the bathroom, opened the
door, and showed him a cocaine testing laboratory set up
inside (Pet. App. 3-4; Tr. 317-319; H. Tr. 145-147).
While other agents were examining the laboratory,
Tavelman explained to Cameron how he was going to test
the cocaine. Shortly thereafter, Tavelman gave Cameron
the cocaine and $22,000 that he had with him in the hotel
room. Tavelman told Cameron that he had intended to use
the cocaine to test the purity of Baron’s cocaine (Pet. App.
4; H. Tr. 148; Tr. 326-327).
6
ARGUMENT
1. Both petitioners argue (81-846 Pet. 7-10; 81-944 Pet.
10-21) that, even if they were predisposed to commit the
offenses of which they were convicted, the conduct of the
government agents in this case was so “outrageous” as to
require dismissal of the prosecutions on due process
grounds. Specifically, petitioners contend that the govern-
ment agents “created” the crime and then induced them “to
enter the criminal scenario conceptualized by the agents”
(81-846 Pet. 10). As the court of appeals correctly con-
cluded (Pet. App. 11), however, the conduct complained of
was neither “outrageous” nor “grossly shocking.” To the
contrary, it was entirely proper law enforcement activity.
In the first place, petitioners mischaracterize the origin of
the scheme. Contrary to petitioners’ assertion, government
agents did not approach Job and offer to sell him drugs.
Rather, the evidence shows (see pages 2-3, supra) that Sil-
verman, a middleman, approached an informant, Baron,
and expressed interest in locating a source to supply large
quantities of cocaine. The DEA agents then followed the
middleman’s lead by permitting the informant to offer pur-
ported cocaine for sale, so that they could learn the identity
of the ultimate buyer. There was nothing improper in such
conduct. See United States v. Russell,411 U.S. 423 (1973).
Job’s claim (Pet. 19) that he was lured to Nevada by
telephone calls and promises of women, gambling, fun and
entertainment similarly is unpersuasive. The evidence at
trial showed that this was not the first narcotics transaction
that Silverman had set up for Job and his “partner,” Tavel-
man (see note 2, supra). Moreover, the only reluctance to
purchase the cocaine that Job exhibited was based on his
desire first to sell a kilo of cocaine already in his possession
(see page 3, supra). It is thus apparent that both petitioners
>
were dealing in cocaine before Baron ever came into the
picture.‘
2. Tavelman contends (Pet. 10-15) that the district court
should have suppressed his pre-arrest statements to
Cameron because they were the result of “custodial interro-
gation” conducted without a reading of Miranda rights and
that any statements he made after his arrest also should
have been suppressed because, he claims, Cameron con-
tinued questioning him despite his request to speak with his
attorney.
Prior to trial, Tavelman moved to suppress all evidence
found and statements made in his hotel room on the ground
that they were the fruit of an unlawful arrest and search. At
a suppression hearing held on November 19-20, 1979,
‘Job's reliance (Pet. 16-18, 21) on an alleged conflict between, on the
one hand, the decision below and, on the other hand, United States v.
Borum, 584 F. 2d 424(D.C. Cir. 1978), and United States v. Twigg, 588
F. 2d 373 (3d Cir. 1978), is misplaced. In Borum, in which the District of
Columbia Circuit reversed the defendant's conviction of offenses aris-
ing out of his illegal possession of a firearm, the court of appeals had
found that there was “sufficient evidence in the record for a jury to find
both ‘inducement’ by government agents and lack of predisposition on
the part of appellant Borum”™ (584 F. 2d at 428; emphasis added), and
had rejected the government's suggestion that it “transfer” the defend-
ant’s undisputed predisposition to fence stolen merchandise to the
firearms offenses for which the defendant was convicted (id. at 429).
Nor does United States v. Twigg, supra, have any application to the
facts of this case. In Twigg, the court of appeals reversed convictions for
the manufacture of, and conspiracy to manufacture, a controlled sub-
stance on the ground that extensive police involvement in the crime
violated due process. Even assuming that such a defense was called for
in Twigg by the extent of the police involvement there—including the
facts that a government informant “was completely in charge of the
entire laboratory” in which the manufacturing occurred (588 F. 2d at
376) and that only the informant, but neither of the defendants, knew
how to manufacture the controlled substance (id. at 381), the compara-
tively minor role played by the agents in this case would not warrant the
defense here.
Tavelman argued, inter alia, that he was arrested as soon as
the agents entered his hotel room, that his arrest was not
supported by probable cause, that his Fifth Amendment
rights were violated when agents obtained post-arrest
statements from him in the absence of any valid waiver of
his Miranda rights, and that he did not consent to the search
of his hotel bathroom (H. Tr. 299, 302; see Pet. 5).
The district court denied Tavelman’s motion on
December 12, 1979 (Pet. App. 17-26). The court determined
that Tavelman initially had invited Agent Cameron and the
other agents into his hotel suite (id. at 17), and that subse-
quently Tavelman “not only consented to the search of his
suite, but actually assisted in turning over to the agents the
various items of evidence they seized” (id. at 26). The court
further found that any statements Tavelman made after his
arrest were voluntary. In a subsequent order dated January
10, 1980, the court reiterated (id. at 27) that “any statements
made by [Tavelman] in his room, after arrest, were made
voluntarily and not during custodial interrogation.”> The
‘The January 10, 1980 order was entered in response to Tavelman’s
motion in limine for a determination of the voluntariness of all state-
ments made by him after his arrest in his hotel room (Pet. App. 27). In
denying the motion in limine, the district court noted (ibid.) that it
already had disposed of Tavelman’s claims in its prior order (id. at
17-26) on the basis of the November 19-20, 1979, suppression hearing.
Tavelman’s claim (Pet. 15 n.1) that he was denied a hearing on the
voluntariness of his post-arrest statements is additionally foreclosed by
his trial counsel's negative response to the district court’s inquiry
whether “any other facts * * * might come out if we held an evidentiary
hearing other than what we have dealt with here” (Tr. 9).
Apart from the statemet.ts whose admission Tavelman complains of
here, the district court admonished the jury to disregard testimony
concerning three other statements allegedly made by the petitioners.
First, on cross-examination, Agent Cameron testified that Tavelman
had told him that “they were going to use [the $22,000 found in Tavel-
man’s hotel room] to buy the coke” (Tr. 371). The district court pre-
viously had ruled this statement inadmissible in the government's case-
9
court of appeals affirmed (Pet. App. 1-15), specifically hold-
ing that Tavelman had consented to the agents’ initial entry
into his hotel room and to their subsequent search of it (id.
at 9) and that “the district court’s determination that
Tavelman was not in custody prior to his formal arrest was
not clearly erroneous” (id. at 15).
a. In Miranda v. Arizona, 384 U.S. 436, 444 (1966)
(footnote omitted), this Court defined custodial interroga-
tion as “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.”
The Miranda requirements do not apply to routine on-the-
scene questioning about a possible crime. Miranda v.
Arizona, supra, 384 U.S. at 477. Rather, Miranda warnings
are required only where a suspect’s freedom to leave is
restricted. See Oregon v. Mathiason, 429 U.S. 492, 495
(1977).
The facts of record in this case clearly demonstrate that
Tavelman was not “in custody” when the agents, with his
permission, entered his hotel room. At that time, the agents
had not determined or concluded that Tavelman was Job's
partner. When Cameron entered Tavelman’s hotel room,
Cameron intended only to investigate the possibility that
Tavelman was involved in the attempt to purchase cocaine.
Cameron himself testified (H. Tr. 137-138) that he did not
consider Tavelman to be “under arrest” prior to his formal
arrest because Cameron “hadn't asked [Tavelman] enough
in-chief, and after it came out on cross-examination the court directed
the jury to disregard it (Tr. 452). Second, when the petitioners acciden-
tally met at the DEA Office following their arrest, Job remarked, “Jack,
Ise they got you, too. I just want you to know that they didn't get you
t' «gh me.” Tavelman then asked Cameron: “How did you get me?”
(tr. App. 4; H. Tr. 152; Tr. 335). Prior to trial, the district court had
ruled (correctly, in our view) that these spontaneous statements were
admissible (Tr. 22), but subsequently it ordered them stricken from the
record as well (Tr. 452).
10
to have probable cause in [his] own mind to believe [Tavel-
man] was Jack the accountant.” Neither does the record
reflect that petitioner believed or reasonably should have
believed that he was in custody. Tavelman was questioned
in his own hotel room, to which he voluntarily had admitted
the agents, and at no time was he told he was not free to
leave. Indeed, on direct examination, Tavelman testified
that whether he was free to leave his hotel room had never
occurred to him; he had never thought about it (H. Tr. 203).
Accordingly, the present case is controlled not by Orozco
v. Texas, 394 U.S. 324 (1969), on which Tavelman relies
(Pet. 11), but rather by Beckwith v. United States, 425 U.S.
341 (1976), in which the Court held that Internal Revenue
agents engaged in a criminal tax investigation were not
required to give Miranda warnings to a suspect whom they
questioned in a private residence in which the defendant
occasionally stayed and into which the officers had been
invited (id. at 342).
b. Tavelman further argues (Pet. 13-14) that any state-
ments made after his arrest also were obtained in violation
of his Miranda rights. The district court correctly ruled
(Pet. App. 26), however, that petitioner’s post-arrest state-
ments to Agent Cameron were not the product of interroga-
tion, but rather were made voluntarily during a conversa-
tion initiated by Tavelman, after he had waived his right to
counsel.
Although interrogation must cease after a suspect has
elected to exercise his right to counsel, subsequent volun-
teered statements are not barred by Miranda’s prophylactic
protections of the Fifth Amendment privilege against com-
pelled self-incrimination. Edwards v. Arizona, No. 79-
5269 (May 18, 1981), slip op. 8-9; Miranda v. Arizona,
supra, 384 U.S. at 478. Statements made by a defendant
upon his own initiation of a conversation with law enforce-
ment personnel are admissible. See United States v.
Rieves, 584 F. 2d 740, 745-746 (Sth Cir. 1978). Advice from
police intended only to contribute to a suspect’s evaluation
of his situation does not constitute interrogation even if the
suspect has asked for a lawyer. United States v. Rose, 570
F. 2d 1358, 1361 (9th Cir. 1978). Likewise, an agent’s prom-
ise to make known to authorities any cooperation by the
defendant does not constitute interrogation. United States
v. Rieves, supra, 584 F. 2d at 745.
The record here clearly demonstrates that the statements
Tavelman made following his arrest were not in response to
questions by Agent Cameron, but rather were the result of
Tavelman’s own initiative. Thus, after Tavelman failed to
contact his attorney, he asked Agent Cameron if coopera-
tion would aid his situation (Pet. App. 18). Cameron replied
only that Tavelman’s cooperation would be made known to
the United States Attorney (ibid.). When Tavelman per-
sisted and asked if it would be beneficial for him to consent
to a search of his bathroom, Cameron responded that if he
found what he expected to find, such a consent would not be
in Tavelman’s best interests (H. Tr. 146). Nonetheless,
Tavelman proceeded to show the agents the bathroom
laboratory and other incriminating evidence (Pet. App. 18).
Accordingly, it is clear that, contrary to Tavelman’s con-
tention (Pet. 13-14), the agents “scrupulously honor{ed]”
his request for an attorney. When Tavelman was unable to
contact his lawyer, the agents did not attempt to interrogate
him. Instead, they merely responded to his questions, which
was entirely proper. Cf. Edwards v. Arizona, supra, slip
op. 8-9; Rhode Island v. Innis, 446 U.S. 291, 300-301
(1980). As the district court found (Pet. App. 26), Tavelman
voluntarily and knowingly chose to waive his right to coun-
sel, thus rendering his subsequent responses to Cameron's
questions conerning the operation of the laboratory and
similar matters also admissible.
12
3. Tavelman next asserts (Pet. 15-16) that the agents
lacked probable cause to arrest him. This contention, how-
ever, depends on Tavelman’s further assertion (ibid.) that
he was, in fact, arrested at the moment that the agents
entered his hotel room.
As we have shown above (pages 9-10, supra), Tavelman
was neither under arrest nor in custody at the time Agent
Cameron entered his hotel suite. Rather, at that point,
Cameron was merely investigating the possibility that
Tavelman was involved in the aborted effort to purchase
cocaine. Prior to his conversation with Tavelman, Cameron
knew only that an accountant named “Jack” had come to
Reno on the same flight as Job, was staying in the same
hotel as Job, and was going to test the cocaine and pay half
the purchase price. In addition, immediately before Cameron
arrested Job, Job and Baron had gotten off the hotel eleva-
tor on the 24th floor on their way to “Jack's” room to test
the cocaine. Hotel security also had determined that the
occupant of Koom 2417 met “Jack’s” description (Pet. App.
3). On cross-examination, Cameron described the situation
as follows (Tr. 370): “My feeling at the time is if he had shut
the door in our face and told us he didn’t want to talk about
it, that would have been the end of it.”
It was only after Tavelman invited the agents into his
room that Cameron learned that the occupant of Room
2417 was Jack Wilbur Tavelman, that he had registered at
the hotel under an alias, that he was an accountant, that he
had flown to Reno from Los Angeles on the same flignt as
Job, indeed, in the seat next to Job’s, and that he was
carrying a large sum of money (Pet. App. 3). Together with
his previous knowledge, this additional information fur-
nished Cameron ample probable cause to believe that
Tavelman was Job’s partner and to arrest him at that time.
13
In any event, regardless of whether the agents believed
they had probable cause to arrest Tavelman at the time he
admitted them into his hotel room, the entry was not an
arrest. Tavelman was not told he was under arrest, nor did
the agents act in a manner that could reasonably be
construed by Tavelman to place him under arrest. Instead,
they accurately identified themselves and their purpose and
were voluntarily admitted to the room.
4. Tavelman next contends (Pet. 17-18) that, even if he
had been lawfully arrested, he did not consent toa search of
the bathroom laboratory. Both courts below, however,
rejected this fact-based contention, and there is no reason
for further review of it. United States v. Reliable Transfer
Co., 421 U.S. 397, 401 n.2 (1975); Berenyi v. Immigration
Director, 385 U.S. 630, 635 (1967). In any event, it is with-
out merit.
Tavelman’s claim (Pet. 17-18) that he was subjected to
continued questioning accompanied by deceitful promises
and threats to get a wa:rant is belied by the facts of record.
As we have shown, after petitioner’s arrest, Agent Cameron
terminated the questioning. Tavelman himself, however,
asked whether it would be in his best interests to consent to
a search of the bathroom. Cameron made it clear that if he
found what he expected to find in the bathroom a search
would not be in petitioner's best interests. Tavelman none-
theless replied, “you have been a gentleman with me so far,
and I have tried to be cooperative. I may as well be coopera-
tive all the way. * * * What you're looking for is in the
bathroom” (Tr. 319). Tavelman then took Cameron to the
bathroom and showed him the laboratory (ibid.). On these
facts, there is no reason to doubt the lower courts’ conclu-
sion that Tavelman voluntarily consented to a search of the
bathroom. See Schneckloth v. Bustamonte, 412 U.S. 218
(1973).
14
5. Finaliy, Job attempts (Pet. 23) to characterize the
conspiracy charge as a “conspiracy to attempt to buy
cocaine” in order to pave the way for his “impossibility”
argument (Pet. 22-28). Petitioners were not charged under
the attempt prong of the statute, however, but rather were
indicted for conspiracy to possess a cuoatrolled substance
with intent to distribute it, in violation of 21 U.S.C. 846. Itis
well settled that impossibility, whether “factual” or “legal,”
is not a defense to a charge of conspiracy. See W. LaFave
& A. Scott, Criminal Law 474-476 (1972); United States v.
Bobo, 586 F. 2d 355, 371 (Sth Cir. 1978), cert. denied, 440
U.S. 976 (1979); United States v. Sanford, 547 F. 2d 1085,
1091-1092 (9th Cir. 1976); United States v. Kellerman, 431
F. 2d 319, 323 (2d Cir.), cert. denied, 400 U.S. 957 (1970).
The essential element of the crime of conspiracy is the
agreement to join an illegal venture; whether the conspira-
tors suceed in their criminal endeavor is irrelevant. United
States v. Feola, 420 U.S. 671, 694 (1975); United States v.
Marx, 635 F. 2d 436, 439 (Sth Cir. 1981); United States v.
Shoup, 608 F. 2d 950, 956. 963 (3d Cir. 1979); United
States v. Sanford, supra, 547 F. 2d at 1091-1092; United
States v. Kellerman, supra, 431 F.2d at 323. Accordingly,
in a prosecution for conspiracy to possess a controlled
substance with intent to distribute it, it is immaterial if, at
the final stage of their endeavor, the conspirators fail to
secure any contraband substance or, indeed, any substance
at all. It is sufficient that they intended to possess contra-
band and agreed to participate in a criminal scheme with
that object in mind. See United States v. Marx, supra; 635
F. 2d at 439; United States v. Bobo, supra, 586 F. 2d at 371;
United States v. Rueter, 536 F. 2d 296, 298 (9th Cir. 1976).°
*Under the conspiracy statute involved here, 2! U.S.C. 846, the
government is not required to prove an overt act in furtherance of the
conspiracy (United States v. Marx, supra, 635 F. 2d at 439), although,
of course, petitioners undertook numerous overt acts in furtherance of
their conspiracy.
15
In the present case, the evidence overwhelmingly shows
that the petitioners agreed to travel to Reno together for the
express purpose of purchasing a substantial quantity of
what they believed to be cocaine. The crime of conspiracy
was complete once they agreed to participate in this scheme
(see note 6, supra), and is further evidenced by the steps they
took toward their goal. Because the government’s proof
thus satisfied the requirements of conspiracy law, the nature
of the substance that was offered for sale is irrelevant. See,
e.g., United States v. Bobo, supra, 586 F. 2d at 371.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
Rex E. Lee
Solicitor General
D. LOWELL JENSEN
Assistant Attorney General
JANIS H. KOCKRITZ
Attorney
JANAURY 1982
DOJ-1982-01
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