# Petition — Coletta v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1141%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1202 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1141%3A1. Public record. Not legal advice.