Petition — Coletta v. United States

Office . s

82-798 FILED

No. NOV 2 1982

IN THE SUPREME COURT

Of The

United States

October Term, 1982

MICHAEL WARREN COLETTA, JOHN A. WILMS,

HERVE BITTON, HERNAN CASTRO

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

STEPHEN J. HEISER, ESQ.

LAW OFFICES OF

STEPHEN J. HEISER

260 California Street

Suite 600

San Francisco, CA 94111

Telephone: (415) 398-7800

Counsel for Petitioners

ATTORNEYS OF RECORD

FOR PETITIONERS

STEPHEN J. HEISER, ESQ.

LAW OFFICES OF STEPHEN J. HEISER

260 California Street, Suite 600

San Francisco, California 94111

Telephone: (415) 398-7800

JOSEPH T. VODNOY, ESQ.

Attorney at Law

316 West Second Street, Suite 1200

Los Angeles, California 90012

Telephone: (213) 627-1736

GREGORY S. STOUT, ESQ.

Attorney at Law

235 Montgomery Street

San Francisco, California 94104

Telephone: (415) 956-5050

Attorneys for Petitioner

MICHAEL WARREN COLETTA

GILBERT EISENBERG, ESQ.

FILIPPELLI & EISENBERG

407 Sansome Street, Third Floor

San Francisco, California 94111

Telephone: (415) 433-3476

Attorney for Petitioner

JOHN A. WILMS

JACK BERMAN, ESQ.

JUDD IVERSON, ESQ.

Attorneys at Law

1231 Market Street--Penthouse

San Franciscan Hotel

San Francisco, California 94108

Telephone: (415) 552-6500

Attorneys for Petitioner

HERVE BITTON

PAUL MIKE GOORJIAN, ESQ.

GOORJIAN, McCABE & POTTER

500 Sansome Street, Suite 212

San Francisco, California 94111

Telephone: (415) 397-1757

Attorney for Petitioner

HERNAN CASTRO

QUESTIONS PRESENTED

Whether white males have

standing to challenge

discrimination in tne selection

of grand jury foremen in

federal criminal trials?

Whether a federal criminal

indictment must be dismissed

where uncontradicted evidence

shows that the Adrinistrator of

the DEA has improperly refused

to reclassify cocaine into a

different schedule of the

Controlled Substances Act?

Whether a warrantless search

and seizure conducted under the

"incident to arrest" exception

to the Fourth Amendment's

warrant requirement must be

contemporaneous with that

arrest?

ii

PARTIES TO THE PROCEEDINGS BELOW

There were no parties, other

than petitioners, in the Court of

Appeals.

iii

TABLE OF CONTENTS

Questions Presented .... =.

Parties to Proceedings Below.

Opinions Belo

ee

Constitutional Provisions and

Statutes Involved ..... -«

Statement * * * * . * . * * *

Basis for Federal Court

eee ¢ 2 es € 8

Reasons for Granting the Writ

1.

The Rul ing By The Court

Of Appeals That White

Males Lack Standing To

Challenge Discriminatory

Process For The Selec-

tion Of Grand Jury Fore-

men Requires This Court

To Settle A Conflict

Between Circuits, And To

Resolve An Important And

Undecided Question Of

Federal La

Given Uncontradicted

Evidence That Scientific

Developments Require

Reclassification Of

Cocaine Uncer The Terms

Of The CSA, The District

Court's Denial, Without

Hearing, Of The Motion

To Dismiss The Indict-

ment Violated Rights

9

iv

Guaranteed By The Due

Process And Indictment

Clauses Of The Fifth

Amendment As Well As The

Fair Trial Guarantee Of

The Sixth Amendment. ..

3. The Opinion Of The Court

Of Appeals Sustaining A

Non-Contemporaneous

Search Incident To

Arrest Violates Law

Established By This

Court And Blurs The

Distinction Between Such

("Belton") Searches And

Automobile ("Ross")

Seearenese.s «+ ce ec eee

Conclusion ..+++«¢+s«¢+e¢e-e806-e

MepenGin A. «eo co sete oe 6 @ fe

meena Des 0 ce 6 6 © 0 6 6 8

ohhh „„ „„

15

TABLE OF AUTHORITIES

CITED

CASES

Louisiana

(1972)

Barrows v. Jackson

Brinegar v. United States

336 U.S. 160 (1949)

Castaneda v. Partida. ...

U.S. 482 (1

Alexander v.

U. *

Missouri !!

9)

Duren v.

U.S.

r

121 U.S. 1 (1886)

United States

r. 0)

Mossew v.

. N

.

69 L.Ed 769

New York v.

(1981)

NORML v. DEA. ..

; (D.C. Cir. 1977)

x | e 0

1972)

Robbins v. California...

7581)

Rose V. Mitchell. ....

1579)

. ’ Ed. 2d 744

vi

Cases

oe .

United States v.

Supp.

United States v.

U. >

3 « « 8 © «

N. D. 111. 1975

DDD „

United States v. Hudson & Goodwin

ranc 0 Ed.

United States v. Kiffer

0 r. 1973)

United States v. Perez-Hernandez.

United States v. oss

“ L. Ed. 2d 57

(1982)

Warth Vv * Weldin * * * * >. * * > *

975)

STATUTES AND REGULATIONS

18 U.S.C. Section 3231 .....

21 U.S.C. Section

Section

Section

841 (al ()

846 * >. >. > > *

872(a) (6)...

1254(1) .

1861 > * > > *

1862

28 U.S.C. Section

Section

Section

vii

CONSTITUTION

United States Constitution:

Article III, Section 22

Fifth Amendment ....+.-s.

Sixth mwendrent

STATUTES

Immigration Act of 1907, 34

Stat. 900, 1907, 39 Stat. 880,

1917, 8 U.S.C. Section 144. ..

Jury Selection and Service Act

of 1968, 28 U.S.C. Section

1861, et seg. * * * * * * * * *

Controlled Substances Act, 21

U.S.C. Section 801, et seg.

Magna Carta, Clause 39, (12

Am.Jur., Constitutional Law,

Section see r

TREATISES AND ARTICLES

Hall, J., General Principles

of Criminal Law, (2d ed. (1960)

Horwitz, The Transformation of

American Law, 1780-1860 (1977)

LeFave and Scott, Criminal Law

(1972) * * . * . * * . * . * .

Nelson, Americanization of the

29

25,27

24,25

viii

Treatises And Articles

Packer, H. The Limits of the

Criminal Sanction (1968)... . .24

Perkins, R., Perkins on

Criminal Law (24 ed. 1969) ... .24

Tribe, American Constitutional

Law (1578) „ . . * = „ „ 5 * „ ao 22.4

OTHER AUTHORITIES

1970 U.S. Code Cong. & Ad.News

st Cong., 2d sess.) ... i117

Hart, Henry M., “The Power of

Congress to Limit the Juris-

diction of Federal Courts: An

Exercise in Dialectic," 66

Harv.L.Rev. 1632 and reprinted

in Hart & Wechsler, The Federal

Courts And The Federal System ‘

(2na ed. 1973) „ „ * * > > > > * — 28. 4

Hearing of the Subcommittee

to Investigate Juvenile

Delinquency, Committee of the

Judiciary, U.S. House of

Representatives, September

IS, 1969 « %% „% 6 & „ „ „ „ « 0fd

Sedler, "Standing To Assert

Constitutional Jus Tertii In

The Supreme Court," 71 Yale

L. Rev. 599 (19677 « « « « «13,14

No.

IN THE SUPREME COURT

Of The

United States

%ctober Term, 1982

MICHAEL WARREN COLETTA, JOHN A. WILMS,

HERVE BITTON, HERNAN CASTRO

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

“The petitioners, Michael Warren

Coletta, John A. Wilms, Herve Bitton, and

Hernan Castro, respectfully pray that a

writ of certiorari be issued to review

the opinion of the United States Court of

Appeals for the Ninth Circuit entered on

July 29, 1982 (Petition For Rehearing

denied September 2, 1982).

-2-

OPINIONS BELOW

The District Court issued no

opinion nor oral findings of fact nor

conclusions of law in denying defendants’

motion to dismiss the Indictment, nor

defendant Coletta's motion to suppress

evidence. The opinion of the Court of

Appeals now reported at 682 F.2d 820

(1982), appears as Appendix A. The Order

of the Court of Appeals dated September

2, 1982, denying the Petition for Rehear-

ing appears as Appendix B.

JURISDICTION

The opinion of the Court of

Appeals for the Ninth Circuit was entered

on July 29, 1982. Petitioners timely

petition for rehearing was denied on

September 2, 1982. Jurisdiction of this

Court is conferred by 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISION

AND STATUTES INVOLVED

Article III, Section 2 of the

*

United States Constitution provides in

pertinent part:

"The Judicial power [of the

United States] shall extend to

all Cases, in Law, and Equity,

arising under this constitution

[and] the laws of the United

States ...

"The Trial of all Crimes ...

shall be by jury ..."

The Fifth Amendment to the

United States Constitution provides in

relevant part:

"no person shall be held to

answer for a capital, or other-

wise infamous crime, unless on

a presentment or indictment of

a Grand Jury ... nor shall any

person ... be deprived of life,

liberty, or property, without

due process of law ....

The Sixth Amendment to the

United States Constitution provides in

relevant part:

"In all criminal prosecutions,

the accused shall enjoy the

right to a speedy and public

trial by an impartial jury ..."

Various sections of the Jury

Selection and Service Act of 1968 (28

age

U.S.C. §1861 et seq) apply to the grand

jury foremen selection issue raised by

this Petition. In particular, §1861 pro-

vides, in relevant part, that it shall be

"The policv of the United

States that ail litigants in

federal courts entitled to

trial by jury shall have the

right to grand and petit jurors

selected at random from a fair

cross-section of the community

... All citizens shall have

the same opportunity to be con-

sidered for service on grand

and petit juries ...."

28 U.S.C. §1862 provides that:

"No citizen shall be excluded

from service as a grand or

petit juror in the District

Court of the United States on

account of race, color, reli-

gion, sex, national origin or

economic status."

Various sections of the Con-

trolled Substances Act (hereafter the

"CSA") are necessarily involved in this

action. The particular provisions most

directly involved, which are set out in

full in Appendix C, are portions of 21

U.S.C. §§811, 812, 841, and 877.

who

STATEMENT

1. On May 8, 1981, the federal grand

jury for the Northern District of Cali-

fornia indicted petit ionersl/

for con-

spiring to distribute cocaine in viola-

tion of Title 21 U.S.C. §846; in addi-

tion, petitioner Coletta was accused of

possessing cocaine for distribution in

violation of 21 U.S.C. §84l(a)(1). Prior

to trial, petitioners challenged the in-

dictment returned against them on several

grounds, including the two presented

here: first, that the selection of grand

jury foremen by district judges in the

Northern District of California violated

the Jury Selection Act by the protections

of the Fifth Amendment in that Caucasian

males accounted for 25 of the 28 of the

grand juries empaneled from

n fifth individual, CARLOS CASTRO, was

indicted and convicted along with petitioners,

but did not challenge his conviction on appeal.

eka

ry 5, 1977, to June of 1981 (of the

ing three, only two were women and

ight have been Hispanic; no black or

was ever selected). Second, that

opments in the state of scientific

2dical knowledge since the enactment

2 CSA in 1970 had rendered the

121 classification of cocaine in

11e II of that Act invalid. Further

ght of equally significant develop-

in the procedural and substantive

oplying to Administrative actions,

2fusal of the Administrator of the

> carry out his statutorily mandated

to reclassify controlled substances

zh circumstances denied petitione s

rocess of law, and, for the reasons

it more fully below, rendered the

tment invalid.

In addition, defendant Coletta

to suppress the warrantless search

2izure of a travel bag removed from

4.

the stationery car in which he was sit-

ting at the time of his arrest, but not

opened and searched and until the drug

agents returned to their office, substan-

tially later in time and removed in place

from the place of arrest.

2. Because all the defendants were white

males, the District Court determined,

without oral or written conclusions of

law or citation of authority, that they

did not have standing to raise the ques-

tion of alleged discrimination in the

selection of the grand jury foreman.

Accordingly, their motion challenging the

Indictment on this ground was denied.

3. Finally, defendants made an extensive

Offer of Proof which, briefly stated,

alleged that scientific and medical

evidence developed since the Concress

placed cocaine in Schedule II (in 1970)

rendered cocaine's continued clas-

sification in Schedule II invalid under

each of the criteria set out in 21 U.S.C.

§812. Although the government never con-

tested any of the substantive allegations

contained in defendants’ Offer of Proof,

and although defendants stressed at the

outset that they were challenging neither

the validity of the Congressional place-

ment of cocaine in Schedule II nor the

constitutionality of the delegation of

the power to reclassify to the Admin-

istrator, the Court denied the defen-

dants’ motion without comment.

4. With respect to the seizure of

cocaine from the travel bag, the facts

which were not in dispute at the sup-

pression hearing showed that pursuant to

@ pre-arranged plan, defendant Coletta

and an undercover informant posing as the

purchaser of drugs were sitting in

Coletta's car parked in a supermarket

parking lot, with a partially opened

travel bag sitting in the back seat.

Also by prior arrangement, when the DEA

oSa

officer approached the car and was sig-

naled by the informant that the transaction

had occurred, the agent immediately

placed Coletta under arrest and removed

him from the car. Once Coletta was re-

moved from the car and handcuffed and

taken out of harm's way, the agent re-

moved both his travel bag as weil as the

informant's bag from the car. Instead of

searching Coletta's bag at the scene, the

agent closed it and took it to his office

where, sometime later, he reopened it and

removed the bags containing the cocaine

from its interior.

BASIS FOR FEDERAL JURISDICTION

Because this is a federal

criminal prosecution, 18 U.S.C. § 3231

conferred original jurisdiction on the

district court.

REASONS FOR GRANTING THE WRIT

1. The Ruling By The Court Of Appeals

That White Males Lack Standing To

Challenge Discriminatory Process For

-10-

The Selection Of Grand Jury Foremen

Reguires This Court To Settle A

Conflict Between Circuits, And To

Resolve An Important And Undecided

Question Of Federal Law.

Although this Court has decided

six major cases dealing with the question

of alleged discrimination in the selec-

tion of grand and petit juries since

1972, 2/ the precise question here has

never been decided: may white males chal-

lenge an Indictment returned by grand

juries, the foremen of which were select-

ed in a manner which discriminated

against minorities, including blacks,

Asians, Mexican-Americans, and women?

Language in this Court's opinions points

in different directions. In Peters,

Supra, the Court held that the existence

of constitutional violations in the grand

2/ see Alexander v. „ 405 U.S.

625 (1972); ; a. ; „8. 493 (1972) 7

J. — 1 . 8. 522 (1975);

, 430 U.S. 482 (1977); Duren

9 U.S. 357 (1979); Rose v.

3 U.S. 545 Nee

jury selection process “does not depend

on the circumstances of the person making

the claim.” 407 U.S. at 498. In

Castaneda, however, the Court employed

language suggesting that a defendant ob-

jecting to the jury selection process

must show “underrepresentation of his

race or of the identifiable group to

which he belongs." 430 U.S. at 494.

Finally, in Rose v. Mitchell, the Court

pointed in both directions at the same

time. First, the Court repeated the

language of Peters that it "has recog-

nized that a criminal defendant's right

to equal protection of the laws has been

denied when he is indicted by a grand

jury from which members of a racial group

purposely have been excluded.” 443 U.S.

at 556. Later in that same opinion, the

Court repeated the Castaneda language,

emphasizing the need of a defendant to

belong to the class being discriminated

against.

3

Thus far, two Courts of Appeals

have passed on the question presented

here. In United States v. Perez-

Hernandez, 672 F.2d 1380 (1982), the

Court of Appeals for the Eleventh Circuit

concluded that the apparent conflict in

the language just cited does nothing to

undercut the “clear and unambiguous”

holding in Peters that “has never been

expressly overr._ 4," especially since

the language in Rose was dicta by virtue

of the fact that the petitioners there

were black and were challenging discrimi-

nation against their own race. 672 F.2d

at 1386. In the instant case, the Ninth

Circuit, with only passing reference to

Perez-Hernandez, reached exactly the

opposite conclusion. This conflict,

regarding a crucial question of

constitutional criminal law, requires

resolution by this Court.

Petitioners suggest that the

Ninth Circuit erred in distinguishing the

two different facets of the law of stand-

ing which have been fashioned by the fed-

eral courts to deal with important ques-

tions emanating from the limited powers

and jurisdiction conferred on such courts

by the constitution. See Barows v.

Jackson, 346 U.S. 249, 255-256 (1953);

Warth v. Seldin, 422 U.S. 490 (1975); and

Sedler, "Standing To Assert Constitu-

tional Jus Tertii In The Supreme Court,"

71 Yale L. Rev. 599 (1962). Briefly

stated, the Court of Appeals confused

constitutional standing, which derives

from the requirement of Article III that

an actual “case for controversy” be pre-

sented for decision, with the “judicial

limitations" which the federal courts

have imposed upon themselves as to how

they will exercise constitutional juris-

diction which they in fact possess.

za ene a ws wa

That is, the Court of Appeals

confused the standing of a party to bring

a suit with the standing of a party to a

suit already brought to contest the

action against him on particular grounds.

See Sedler, supra, at 599. Indeed, all

of the “equal protection cases" which

preclude members of a class not subject

to discrimination from seeking -- as

plaintiffs -- to enforce rights of the

class being discriminated against are

totally inapplicable to the inguiry here.

As the Eleventh Circuit correctly

concluded, no compelling reasons exist

for the federal courts to limit the ambit

of their inguiry into allegations of

discriminatory selection of grand or

petit juries, or their officers.

Accordingly, this Court should grant

certiorari, reverse the rulings below,

and order that an evidentiary hearing be

held to determine whether or not the

prosecution can rebut the strong

, -15-

prima facie case of discriminatory selec-

tion established by petitioners below.

2. Given Uncontradicted Evidence That

Scientific Developments Require

Reclassification Of Cocaine Under The

Terms Of The CSA, The District

Court's Denial, Without Hearing, Of

The Motion To Dismiss The Indictment

Violated Rights Guaranteed By The Due

Process And Indictment Clauses Of The

Fifth Amendment As Well As The Fair

Trial Guarantee Of The Sixth

Amendment.

A. Two points must be made prior

to discussion of the issue presented in

petitioners’ misclassification attack on

the Indictment. First, contrary to

statements made in the Ninth Circuit

opinion, petitioners did not challenge

the constitutionality of the CSA, the

original placement of cocaine in Schedule

II by the Congress, nor the delegation of

the power (and the duty) to reclassify

drugs as scientific knowledge can prove

to the DEA Administrator. Indeed, peti-

tioners contend that the unbroken chain

of cases upholding the validity of the

ate

Act, and the original classification not

only supports their view that the Admin-

istrator has acted improperly in not re-

classifying, but indeed, virtually

compels that very conclusion. See NORML

v. DEA, 559 F.2d 735 (D.C. Cir. 1977);

United States v. Kiffer, 477 F.2d 347

(2nd Cir. 1973); Un- ted States v. Castro,

401 F.Supp. 120 (N. D. 111. 1975).

Second, and again contrary to

statements made in the Ninth Circuit

opinion, defendants’ Offer of Proof

specifically alleged the scientific

evidence would show that under each and

every criteria of §812, particularly

including effects on the public health

and the potential of a drug for abuse,

cocaine may not properly be retained in

Schedule II. To understand why this is

so, a brief overview of the structure and

purpose of the Act is necessary.

Most important to note is that

the CSA was designed to deal ina

coordinated fashion with a perceived drug

problem in the United States by estab-

lishing rehabilitation programs relating

to drug abuse (Title 1); by providing

authority for the Department of Justice

with respect to law enforcement aspects

of drug abuse (Title 2); and by regulat-

ing the importation and exportation of

drugs subject to abuse (Title 3). See

1970 U.S. Code Cong. & Ad. News, p. 4568.

Central to the Act was the re-

gime by which substances could be added,

removed, or reclassified within con-

trolled substance “schedules.” The CSA

contains five categories of controlled

substances, designated as Schedules I-V,

and the schedules are ranked on the basis

decreasing harmfulness at each level,

measured against increasing benefits for

the user. See 21 U.S.C. §812(b) (1-5),

infra, Appendix C. And see, e.g., NORML

v. DEA, 559 F.2d 735, 737 (D.C. Cir.

1977). Moreover, the regulatory controls

-18-

and criminal penalties imposed on the

manufacture, acquisition, and distribu-

tion of substances listed under the CSA

vary enormously in proportion to the

schedule in which the rug is placed.

Congress recognized that as

scientific knowledge concerning the

effects of various controlled substances

improves, the initial drug classifica-

tions in the Act would have to be

changed. Accordingly, it gave the Attor-

ney General the power to change the sche-

dules of controlled substances (see 21

U.S.C. §811, infra, Appendix C). In

order to assist the Attorney General in

this task, the Congress authorized him to

carry out educational and research pro-

grams to develop the information neces-

sary to perform his rescheduling func-

tions under Section 811 [see 21 U.S.C.

§872(a)(6)], and provided guidelines to

him for use in determining into which

schedule a controlled substance should be

-19-

placed. See 21 U.S.C. §8l1l(c), infra,

Appendix C, for a listing of the eight

factors to be considered in determining

the control decision.

The legislative history of the

CSA, and particularly the testimony of

then-Attorney General Mitchell and

then-director of the Bureau of Narcotics

and Dangerous Drugs (BNDD) Ingersoll,

make clear that the theory and structure

of the Controlled Substances Act was

guided by three overriding principles:

first, the creation of five tiers of

controls (codified in the five schedules

of 21 U.S.C. §812) was designed to insure

both actual fairness (in the sense that

offenses and offenders of varying degrees

of severity would be dealt with by means

of graduated penalties) and the

a appearance of fairness (in the sense that

judges, prosecutors, and the public would

perceive that tne penalty fits the crime

in as many senses of that word as are

20 *

are possible). Second, the stress upon

scientific criteria and constant updating

and republishing of the schedules are

designed to insure that the clas-

sification and penalty structure was

rational and credible, in the sense that

the classification of drugs into one or

more of the various schedules conformed

to the best available scientific knowl-

edge as to the relative harmfulness and

benefit of such substance. Third, and in

the eyes of the sponsors of the legisla-

tion, the most important feature of the

CSA, was the granting of discretion to

the Attorney General to move drugs be-

tween one schedule or another. (Section

811; the statute provides that the Attor-

ney General shall add or move a drug from

the Schedules if he determines that cer-

tain factors are present but merely may

transfer drugs from one schedule to an-

other in light of new evidence.)

As Mr. Ingersoll explained

-2l1-

in his testimony introducing the

Controlled Substances Act:

"Perhaps the greatest advantage

to this approach is hat drugs

may be moved from one schedule

to another as scientific infor-

mation and law enforcement

problems come to light ... by

giving the Attorney General

this discretion, the Congress

will permit a quick response to

the ever-changing drug problem

based upon relative harm and

relative abuse potential of

existing drugs and newly dis-

covered drugs."

Testimony of John Ingersoll at

the Hearing of the Subcommittee

to Investigate Juvenile Delin-

quency on the Committee of the

Judiciary, september 15, 1969,

at Pp. 214.

If petitioner's contention is

correct (that the “imposing corrective

mechanism of the CSA is central both

to its validity as legislation and to the

-22-

validity of the manner in which it is

implemented) , the question presented by

the district court's refusal to entertain

his challenge to the administration of

the Act boils down to this: May a defen-

dant in a criminal case be prevented

from challenging the Administrator's

failure to reclassify a controlled sub-

stance as part of his defense to the

charges against him? Petitioner submits

that the answer must be no, because the

rights to due process of law and fair

trial guaranteed by the Fifth and Sixth

Amendments, and the Cases and Contro-

versies provision of Article III of

4/

the Constitution,— preclude the

imposition of the criminal sanction --

“See the celebrated "Dialogue" of Henry

M. Hart, “The Power of Congress to Limit the

Jurisdiction of Federal Courts: An Exercise in

Dialectic,” 66 Harv.L.Rev. 1632, and reprinted in

Hart & Wechsler, The Federal Courts And The Fed-

eral (2nd

0 Constitutional Law (1978) , at

Pages *

222.

indeed, preclude even the exercise of

jurisdiction -- unless two conditions are

met: First, the legislature must have

prescribed a definite penalty (just as it

must have proscribed clearly defined

conduct); second, the defendant must be

permitted to place in issue every element

necessary to prove his guilt.

B. Petitioner argued below that a

determination by the trial court that the

current classification of cocaine is

improper would require dismissal of the

indictment, because the proper classifi-

cation would then be uncertain; since

this classification in turn determines

the range of penalty which may be imposed

by the court, prosecution under 21 U.S.C.

§ 841(b) (1) (A) would violate the funda-

mental principle of Anglo-American cri-

minal law: nulla poena sin lege -- no

220

punishment without law.2/

[Al crime is made up of two

parts, forbidden conduct and a

prescribed penalty. The former

without the latter is no crime."

LaFave and Scott, Criminal Law

(1972), p. 8; See also H.

Packer, The Limits of the

Criminal Sanction (1968),

P. ; J. Hall, neral Princi-

les of Criminal Law (2d ed.

788855 F. 18; K. Perkins,

Perkins on Criminal Law (2nd

* ve . 2

The reason, indeed the neces-

sity, for the rule that where the penalty

is uncertain, no prosecution may be had,

is a product of the reaction of colonial

America to the excesses and oppressions

effected by the King's judges during the

Seventeenth and early Eighteenth

Centuries. See Nelson, Americanization

of the Common Law: The Impact of Legal

-25-

Change on Massachusetts Society,

1760-1830 (1975); Horwitz, The Transfor-

mation of American Law, 1780-1860 (1977),

particularly pp. 1-10. The experience of

colonial Americans was that the General

Courts, which served as the principal

link between the provincial governments

and local communities, and which combined

vast coercive powers covering criminal,

administrative, and civil jurisdictions,

posed too great a threat to liberty to be

retained in the new republic. Accord-

ingly, the Americans came to agree that,

"Those who “executed the Law

ought not to enguire into

its Reason and Policy” but

ought merely “to enquire what

is Law, and see that Laws are

informed," for to permit courts

to determine policy would

introduce a Union of Legisla-

tive and Executive Power” --

"the worst Sort of

Tyranny” .... Colonial Ameri-

cans, in sum, wanted to be

ruled by fixed law, not powers

that could be used by poten-

tially arbitrary rulers.

Nelson, ra, at p. 18, quot-

ing Josi incy, “Charge to

the Grand Jury, “Reports of

28.

Cases Ar and Ad in

t Superior Court o ca-

ture oP the Province of Massa-

chusetts 45 Between 1761 and

* .

That is, a momentous and far-

reaching war was waged in and around the

political institutions of post-indepen-

dence America, in which the point of

controversy was the extent to which the

common law of England should be

received“ into our substantive and

procedure law -- indeed into the very

framework of our judicial and political

institutions. Perhaps by accident,

perhaps not, the reception controversy

came to a head in United States v. Hudson

& Goodwin, 7 Cranch 32, 3 L.Ed. 259

(1812):

"The constitutional objection

to common law crimes boiled

down to the assertion that if

the federal judiciary possessed

jurisdiction to impose criminal

sanctions without a statute it

would be able to obliterate all

constitutional limitations on

the federal government. If the

principle were to prevail,

Thomas Jefferson wrote in 1800,

“of a common law being in force

in the United States“ it would.

"possess .... the general

government at once of all the

powers of the State Governments

and reduce . . us to a single

consolidated government."

Horwitz, supra, p. 10.

In Hudson & Goodwin, the defen-

dants had been convicted of libeling the

President and the Congress by publishirg

an article in a Connecticut newspaper

accusing the Chief Executive and the en-

tire membership of attempting to bribe

Napoleon Bonaparte (with a two million .

dollar present“) to make a treaty with

Spain. In upholding a demurrer to the

indictment, the Supreme Court stated:

»The only question which this

case presents is, whether the

Circuit Courts of the United

States can exercise a common law

jurisdiction in criminal

cases .... Although this ques-

tion is brought up now for the

first time to be decided by this

court, we consider it as having

been long settled in public

opinion .... The only ground on

which it has ever been contended

that [the jurisdiction of the

federal courts to define crimes

or punishments] could be main-

tained is, that, upon the

@2§-

formation of any political

body, an implied power to

preserve its own existence and

promote the end and object of

its creation, necessarily

results to it .... But .... if

[this argument] may communicate

certain implied powers to the

general government, it would

not follow that the courts of

that government are vested with

jurisdiction over any particular

act done by an individual in

supposed violation of the peace

and dignity of the sovereign

power. The legislative

authority of the Union must

first — 14 an act a crime,

affix a punishment to it, and

declare im court that shall

have jurisdiction of the of-

fense.

7 Cranch, at pp. 32-34 (empha-

sis added).

Over 100 years later, the Court

of Appeals for the Second Circuit dis-

missed an indictment brought under a

provision of the National Defense Act

(chapter 53, 40 Stat. 276, August 10,

1917) which made it “unlawful” to hoard

sugar or other "necessaries" which were

in short supply during World War I.

Mossew v. United States, 266 F. 18 (2nd

Cir. 1920). The statute in question,

-29-

however, specified no punishment, and the

court, relying on Hudson & Goodwin, held

that By failure to provide a penalty for

infraction of this statute, or to pre-

scribe a punishment, the statute does not

denounce the act as criminal." Id. at 22.

More recently, this Court took

up the punishment dimension of federal

criminal jurisdiction in a setting more

similar to that presented here -- that

is, where Congress clearly intended to

criminalize conduct and provide a penalty

therefor, but where, for some reason, the

applicable penalty is later seen to be

uncertain. In United States v. Evans,

333 U.S. 483 (1948), the Court upheld the

dismissal of indictments brought under

the Immigration Act of 1907, as amended

in 1917 (34 Stat. 900, 1907, 39 Stat.

880, 1917, 8 U.S.C. Section 144). An

“unusual and difficult problem in stat-

utory construction" arose because che

amendment adding “harboring and

-30-

concealing” left it unclear whether the

punishment (one year) and penalty

($2,000) provisions could apply to each

separate act. As the Court described its

dilemma:

"The choice, as might appear on

glancing at the statute, is not

simply between no penalty, at

the one extreme, and, at the

other, fine plus imprisonment

up to the specified maxima for

each alien concealed or har-

bored. The problem is rather

one of multiple choice, pre-

senting at least three, and

perhaps four, possible yet

neonsistent answers ....

333 U.S. at 484 (emphasis

added).

After noting that “every

reasonable presumption attaches to ...."

require the courts to effectuate the

Congressional purpose, the court held

that “there are limits beyond which we

cannot go..." Id. Again noting

Hudson & Goodwin, it reaffirmed the

principle that where the penalty attached

to proscribed conduct is uncertain,

criminal jurisdiction does not lie.

23}.

Although the uncertainty of

penalty in the statutory setting at issue

here arises in a different manner than it

did in Evans, the resulting problem is

exactly the same: once the present

Classification has been invalidated, it

lies beyond the power of this Court to

re-classify cocaine into Schedule III,

IV, cz V. Consequently, since the pos-

sible penalty for any violation turns on

such reclassification, the problem is

also one of multiple choice, presenting

at least three ... possible yet inconsis-

tent answers ... ." Id.

Finally, if one of the two

prerequisites of a crime, within the

meaning of the Anglo-American system of

justice, is found lacking, the indictment

clause of the Fifth Amendment precludes

any trial on the merits, for that clause

is jurisdictional:

"(If an indictment is impro-

perly amended], it is no

avail ... to say that the court

242

still has jurisdiction of the

person and the crime, for,

though it has possession of the

person and would have jurisdic-

tion of the crime, if it were

properly presented by an in-

dictment, the jurisdiction of

the offense is gone, and the

court has no right to proceed

any further in the progress of

the case for want of an indict-

ment. If there is nothing

before the court which the

prisoner, in the language of

the Constitution, can be ‘held

to answer,’ he is then entitled

to be discharged so far as the

offense originally presented to

the court by the indictment is

concerned. The power of the

court to proceed to try the

prisoner is as much arrested as

if the indictment had been

dismissed or a nolle prosequi

had been entered. There was

nothing before the court on

which it could hear evidence or

pronounce sentence."

Ex parte Bain, 121 U.S. 1, 11

6)

If a valid indictment is juris-

dictional, and if a plea of not guilty

puts every issue in doubt, it necessarily

follows that a defendant must be afforded

a meaningful opportunity to challenge any

essential element of the indictment

brought against him. In this context,

a

that means that Petitioner has an abso-

lute right to a ruling on the merits of

his challenge to the classification of

cocaine. To deny him this right is to

violate the Fifth Amendment's guarantee.

3. The Opinion Of The Court Of Appeals

Sustaining A Non-Contemporaneous

Search Incident To Arrest Violates

Law Established By This Cou “ And

Blurs The Distinction Betwe Such

("Belton") Searches And Automobile

("Ross") Searches.

In New York v. Belton, 453 U.S.

, 69 L.Ed 769 (1981), this Court

established a new bright-Iine“ test for

warrantless searches conducted incident

to the arrest of persons driving automo-

biles. As the Court itself characterized

Belton, that case

"presents the volatile and

fluid situation of an encounter

between an arresting officer

and a suspect apprehended on

the public highway ... Prac-

tical necessity requires that

we allow an officer in these

circumstances to secure

thoroughly the automobile

without requiring him in haste

and under pressure to make

-34-

close calculations about danger

to himself or the vulnerability

of evidence."

Robbins v. California, U.S.

. Ed. at 753

(Powell, J., concurring)

(1981).

Thus, after Belton, “when a

policeman has made a lawful custodial

arrest of the occupants of an automobile,

he may, as a contemporaneous incident of

that arrest, search the passenger

compartment of that automobile." Belton,

supra, 69 L.Ed 2d, at 775.

This past term the Court

established another bright-line test to

deal with the question of the so-called

"automobile exception" to the Fourth

Amendment. See United States v. Ross,

U.S. „ 72 L. Ed. 2d 572 (1982). In

essence, Ross teaches that where the

automobile exception applies, any part of

an automobile and any container inside it

may be searched without a warrant or,

apparently, without limitations. The

-35-

problem presented by this case is the gap

which clearly exists between the

bright-lines of Ross and Belton.

Simply put, the question

presented here is whether a search

incident to arrest, such as occurred

here, must be contemporaneous with that

arrest; if so, the search here was

improper, because the search and seizure

of the contents of the travel bag was not

made until the DEA agent had returned to

his office, some distance and some time

away. If, however, the automobile

exception applies, then non-

contemporaneous searches have been

authorized by this Court.

Under the facts of this case,

however, it is clear that the search

conducted was incident to petitioner

Coletta's arrest, not pursuant to

probable cause to search Mr. Coletta's

car, as is easily seen from analysis

-36-

of the underpinnings of the “automobile”

exception.

As this Court has repeatedly

taught, the initial inquiry, that is to

say the threshold question for the

automobile exception analysis, is not

whether a car may be searched but whether

it may be stopped for the purpose of a

search as it moves on the public

highways. See Brinegar v. United States,

338 U.S. 160, 176-177 (1949);

"(N]o problem of searching ...

was presented either in

[Carroll v. United States, 267

U.S. 132 (1925)] or here. Both

cases involve freedom to use

public highways in swiftly

moving vehicles for dealing in

contraband, and to be

unmolested by investigation and

search in those movements. In

such a case the citizen who has

given no good cause for

believing he is engaged in that

sort of activity is entitled to

proceed on his way without

interference."

That is, only after an auto

stop occurs does the problem addressed in

Ross--the scope of the search--comes to

~37=

the fore. Because the facts showed that,

by prior arrangement, the informant was

to give the signal for Coletta's arrest

only after the informant had put the

cocaine in his bag, no question of a

search is presented; rather, Coletta

was to be arrested, thus triggering

the “incident to“ exception. Thus,

the validity of the police actions here

must be analyzed pursuant to the contem-

poraneity requirement of Ross. Unless

and until this Court rules that a contem-

poraneous search is not required incident

to arrest, the seizure made here must be

deemed illegal and the evidence ordered

suppressed.

CONCLUSION

For the reasons stated above,

this Court should grant a writ of

certior; ri to the United States Court of

Appeals for the Ninth Circuit, and review

-38-

and reverse the judgments entered by that

Court.

Respectfully submitted,

STEPHEN J. HEISER, ESQ.

Attorney at Law

260 California Street

San Francisco, California

94111

Telephone: (415) 398-7800

Counsel for Petitioners

CERTIFICATE OF FILING AND SERVICE

Stephen J. Heiser, a member of the

bar of this Court, certifies that

pursuant to Rule 28 of this Court, he

filed and served the within:

PETITION FOR A WRIT OF CERTIORARI

To The United States Court Of Appeals

For the Ninth Circuit

on November 1, 1982. Service was made

upon counsel for Respondent at the

following addresses:

REX E. LEE

Solicitor General of the United

States

Department of Justice

Washington, D.C. 20530

JOHN C. GIBBONS

Assistant United States Attorney

450 Golden Gate Avenue, 16th Floor

San Francisco, CA 94102

All parties required to be served

have been served.

I certify under penalty of perjury

that the foregoing is true and correct.

Executed on November 1, 1982, at San

Francisco, California.