# Record and brief — Tavelman v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 939

## Text

uOnNed

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

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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
ID. dh004dimaeenesbececcgseneestendie l
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0667%3A0. Public record. Not legal advice.