Opposition Brief — Mendia v. United States

Office - Supreme Court, U.S.

| FILED

$s OCT 265 1084

No. 84-289

ALEXANDER L. STEVAS.

iil ERK

Iu the Supreme Court of the Hnited States iE

OCTOBER TERM, 1984

DAVID MENDIA, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JANIS KOCKRITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether petitioner’s Fourth Amendment rights were

violated by the search of a package found in an associate’s

car.

2. Whether the district court properly denied petitioner’s

request for “judicial immunity” for a defense witness.

(1)

Conclusion

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Autry v. Estelle, 706 F.2d 1394, cert.

denied, No. 83-5720 (Mar. 13, 1984) .

Daley, In re, 549 F.2d 469, cert. denied,

ice snake «has «

Government of Virgin Islands v. Smith,

DE chess Cabha Skdatenaess

McCray v. Illinois, 386 U.S. 300 .....

Pillsbury Co. v. Conboy, 459 U.S. 248

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

Rawlings v. Kentucky, 448 U.S.98 ...

Roviaro v. United States, 353 U.S. 53 .

Simmons v. United States, 390 U.S.

oe se Pe re Pe

Thompson v. Garrison, 516 F.2d 986,

cert. denied, 423 U.S. 933 ..........

United States v. Alessio, 528 F.2d 1079,

cert. denied, 426 U.S. 948 ..........

(IIT)

ciaeees 6

IV

: Page

Cases—Continued:

United States v. Allstate Mortgage Corp.,

507 F.2d 492, cert. denied, 421 U.S. 999 ....... 6

United States v. Bazzano, 712 F.2d 826 ........ 7

United States v. Caldwell, 543 F.2d 1333 ....... 6

United States v. Doe, No. 82-786

tp Ep ee re er Pee ere 5

United States v. Gottesman, 724 F.2d

SEE oad is 6k OSE ee Kae es 0a 045 5

United States v. Graham, 548 F.2d 1302 ........ 6

United States v. Hardrich, 707 F.2d

992, cert. denied, No. 82-6986 (Nov. 28,

SE 664 6:65 06d eee RSE AR ENS KC cee 5

United States v. Heffington, 682 F.2d 1075,

Care: GUNG, GP Ws BORD Khaki eve ciccccss 5

United States v. Herbst, 641 F.2d 1161,

oe Re re 6

United States v. Hunter, 672 F.2d 815 ........ 5-6

United States v. Karas, 624 F.2d 500,

Gort. Geman, GED UB TOTS nc nk ccc ccccscccces 6

United States v. Klauber, 611 F.2d 512,

Cort. Games. GES TE. De was cnecwiis ccccccess 6

United States v. Lenz, 616 F.2d 960,

ONES. SN, Get ST Mii aaacwa veneccess 6

United States v. L’Hoste, 640 F.2d 693 ......... 6

United States v. Lowell, 649 F.2d 950 ....... Py,

United States v. Pennell, No. 83-1243

Ss i EE on Go Ken SSawans cccseeces 5

Page

Cases—Continued:

United States v. Richardson, 588 F.2d 1235,

NE Se, Me OE RE. ccc dancnnesccescces 6

United States v. Ross, 456 U.S. 798 .........4.: 5

United States v. Salvucci, 448 U.S. 83 .......... 4

United States v. Taylor, 728 F.2d 930 .......... 5

United States v. Thevis, 665 F.2d 616,

CURE SI, Ge Ss ED Wha abe dcew en dicncs 6

United States v. Todaro, No. 84-1086

eo BO rT TTT eT ree 5

United States v. Turkish, 623 F.2d 769,

cert. dented, 449 U.S. 1077 2... cccccccccceces 6

Wisniewski v. United States, 353 U.S.

IAS ers Se ei rr Yee ree 6

Constitution and statutes:

Siete A, PUNE, EW a wowewenccaccccscesasas 5

RR SC rrr ererTTrree ee TeeT ee 5

Be Ses PEED | o.0 Steton een vcascacwepenc<es l

a TE Waa Wek n i ndbk CeaNc nde cacens sence l

Miscellaneous:

Note, The Case Against a Right to Defense

Witness Immunity, 83 Colum. L. Rev. 139

CEU SG vas ew CRAKE Eh Eee aN Reb eeie ase ba wek 6

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-289

DAVID MENDIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A4) is

reported at 731 F.2d 1412.

JURISDICTION

The judgment of the court of appeals was entered on

April 27, 1984. A petition for rehearing was denied on June

22, 1984 (Pet. App. B1). The petition for a writ of certiorari

was filed on August 20, 1984. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a non-jury trial on stipulated facts in the

United States District Court for the Southern District of

California, petitioner was convicted of conspiring to pos-

sess heroin with intent to distribute it, in violation of 21

U.S.C. 841(a)(1) and 846. He was sentenced to five years’

imprisonment. The court of appeals affirmed (Pet. App.

Al-A4).

(1)

2

1. The evidence at the suppression hearing showed that

on March 3, 1982, co-defendant Anatolio Madrid Cabrales

sold an ounce of heroin to DEA undercover agent Antonio

Huertas. On March 4, Madrid told government informant

Jose Angel Camacho that he was going to pay petitioner for

the heroin that he had sold to Huertas. Later that day, DEA

agents saw Madrid meet with petitioner at a shopping cen-

ter parking lot. E.R. 58-59.!

On April 1, 1982, Madrid delivered 20 ounces of heroin to

Camacho and told him that the selling price was $137,000.

On April 12, Camacho gave the heroin to Huertas, who

conducted a chemical test of the substance and photo-

graphed it. The next day Huertas gave the heroin back to

Camacho and told him to return it to Madrid and explain

that there would be a delay in the transaction. Approxi-

mately one hour later, Madrid went to Camacho’s residence

to retrieve the heroin and took it to his apartment. Pet. 3-4;

Tr. 8; E.R. 59.

Shortly thereafter, petitioner entered Madrid’s apart-

ment. Petitioner soon left the apartment and drove in his

car to a nearby shopping center. DEA agents observed

petitioner park his car and go into a camera shop. At

approximately 2:15 p.m., a DEA agent entered the shop

and saw that petitioner was looking around nervously and

had large bulges in both of his front pockets. Pet. 4; E.R.

59-60.

A few minutes later, petitioner left the camera shop and

went to an adjacent bar. DEA agents noticed that petitioner

no longer had buiges in his front pockets. The agents

believed that petitioner was waiting for someone, because

“E.R.” refers to petitioner's excerpts of record filed in the court of

appeals.

3

he kept looking at the entrance to the bar, and that peti-

tioner was aware of the surveillance. Pet. 4; Tr. 42, 50-51;

E.R. 60.

At approximately 5:45 p.m., Michael Leon Bronk arrived

at the bar. Petitioner iramediately went up to Bronk and

gave him money for a telephone call. After spending a few

minutes in the bar, petitioner and Bronk left at approxi-

mately 6:00 p.m. Pet. 4; Tr. 43; E.R. 60.

Upon leaving the bar, petitioner and Bronk walked over

to petitioner’s car. Petitioner opened the hood and then,

while Bronk remained by the car, entered the camera shop.

After being in the camera shop for approximately two

minutes, petitioner returned to the parking lot. He and

Bronk then went to Bronk’s car, where Bronk opened the

trunk and threw a light colored object inside. At that point,

Bronk drove away in his car, leaving petitioner in the park-

ing lot. Pet. 4; Tr. 25; E.R. 60.

Soon after he left the shopping center, Bronk was

stopped by the local police at the request of the DEA agents.

The police found the 20 ounces of heroin in a bright yellow

plastic bag in the trunk of Bronk’s car. Pet. 4; Tr. 7, 25-26,

28; E.R. 60.

2. Neither petitioner nor Bronk testified at the suppres-

sion hearing. The district court denied petitioner's motion

to grant judicial immunity to Bronk as a defense witness.

Based on the record at the suppression hearing, the dis-

trict court rejected petitioner's motion to suppress the

heroin located in Bronk’s car. The court found that peti-

tioner had no reasonable expectation of privacy in the

package of heroin because he had transferred it to Bronk

and thus lost control over it (Tr. 55-56).

3. The court of appeals affirmed (Pet. App. Al-A4). The

court upheld the district court’s finding that petitioner had

abandoned any reasonable expectation of privacy he might

a

have had by transferring the package to Bronk and main-

taining no control over it (id. at A2-A3). The court also

concluded that the district court had correctly denied peti-

tioner’s request for judicial immunity for Bronk to testify as

a defense witness on the issue of “standing” at the suppres-

sion hearing (id. at A3-A4).

ARGUMENT

1. Petitioner contends (Pet. 6-9) that he had a reasonable

and legitimate expectation of privacy in the bag of heroin

that was found in the trunk of Bronk’s car.? However, the

district court found on the facts of this case that petitioner

relinquished any privacy interest when he delivered the bag

to Bronk and made no effort to keep control of it, which

finding was sustained by the court of appeals. This fact-

bound ruling is correct and in any event does not warrant

further review.

Petitioner disputes the lower courts’ findings on the

ground that the DEA agents “knew” that Bronk was a

“mule” who would eventually return the heroin to peti-

tioner. However, as the district court recognized (Tr. 55-

56), any such “subjective intent” on petitioner’s part would

not establish a reasonable expectation of privacy during the

time that “sole contro: was with Bronk.” At any rate, the

record fails to support petitioner’s assertion. Petitioner did

not testify at the suppression hearing even though his privi-

lege against self-incrimination would have been protected

under Simmons v. United States, 390 U.S. 377 (1968); see

also United States v. Salvucci, 448 U.S. 83, 89-90 (1980).

Having failed to avail himself of the opportunity to explain

any “arrangement” with Bronk, petitioner cannot now

claim that he had an expectation of privacy based on an

Petitioner does not and could not argue that he had any privacy

interest in Bronk’s car itself. See Rawlings v. Kentucky, 448 U.S. 98

(1980); Rakas v. Illinois, 439 U.S. 128 (1978).

5

assumption that the agents knew that Bronk was only a

temporary “mule.”

2. Petitioner also argues (Pet. 9-11) that the district court

erred in not judicially immunizing Bronk as a prospective

defense witness at the suppression hearing. He concedes

(Pet. 5, 9) that he never asked the district court to dismiss

the indictment or to order the government to grant immun-

ity under 18 U.S.C. 6001 et seg., and thus his sole claim is

that the district court has inherent immunity power that

should have been exercised in this case. Petitioner’s argu-

ment is without merit.

The decision whether or not to confer immunity on a

witness is entrusted to the Executive Branch and is ill-suited

for consideration by the courts. See United States v. Doe,

No. 82-786 (Feb. 28, 1984), slip op. 11; Pillsbury Co. v.

Conboy, 459 U.S. 248, 254, 261-262 (1983). The courts of

appeals have overwhelmingly concluded that the judiciary

is not authorized to immunize witnesses, and this Court has

consistently declined review.4

3We also believe that, even if petitioner had “standing,” the heroin

seized from Bronk’s car was admissible against him. Despite his pejora-

tive characterization (see Pet. 4), petitioner plainly has no standing to

challenge the seizure of Bronk entailed in the stop of his car. Moreover,

as outlined above (see pages 2-3, supra), there was ample probable cause

to believe that the car contained heroin. In these circumstances, under

United States v. Ross, 456 U.S. 798 (1982), the search of the bag

contained in the trunk of Bronk’s car was proper and did not violate

petitioner’s or Bronk’s Fourth Amendment rights.

‘See, e.g., United States v. Todaro, No. 84-1086 (2d Cir. Sept. 11,

1984), slip op. 6201-6205; United States v. Pennell, No. 83-1243 (6th

Cir. June 8, 1984), slip op. 7-13; United States v. Taylor, 728 F.2d 930,

933-936 (7th Cir. 1984); United States v. Gottesman, 724 F.2d 1517,

1523-1524 (11th Cir. 1984); United States vy. Hardrich, 707 F.2d 992,

993-994 (8th Cir. 1983), cert. denied, No. 82-6986 (Nov. 28, 1983); Autry

v. Estelle, 706 F.2d 1394 (Sth Cir. 1983), cert. denied, No. 83-5720 (Mar.

13, 1984); United States v. Heffington, 682 F.2d 1075, 1080-1081 (Sth

Cir. 1982), cert. denied, 459 U.S. 1108 (1983); United States v. Hunter,

6

As petitioner points out (Pet. 9), the Third C rcuit has

held that district courts have the authority to order immun-

ity for prospective defense witnesses in exceptional circum-

stances. See Government of Virgin Islands v. Smith, 615

F.2d 964 (3d Cir. 1980). The Third Circuit stands alone in so

holding and, as noted above, this Court has repeatedly

declined to review the issue notwithstanding the divergent

view of the Third Circuit; no different result is called for

here.

Mureover, even under the Third Circuit’s standard,

petitioner could not prevail. By its terms, the Third Cir-

cuit’s rule is applicable only where, among other require-

ments, “the defendant * * * make[s] a convincing showing

* * * that the testimony which will be forthcoming is both

clearly exculpatory and essential to the defendant’s case.”

672 F.2d 815, 818 (10th Cir. 1982); United States v. Thevis, 665 F.2d

616, 638-641 (Sth Cir.), cert. denied, 456 U.S. 1008 (1982); United States

v. L'Hoste, 640 F.2d 693, 695 (Sth Cir. 1981); United States v. Herbst,

641 F.2d 1161 (Sth Cir.), cert. denied, 454 U.S. 851 (1981); United States

v. Karas, 624 F.2d 500, 505 (4th Cir. 1980), cert. denied, 449 U.S. 1078

(1981); United States v. Turkish, 623 F.2d 769, 771-779 (2d Cir. 1980),

cert. denied, 449 U.S. 1077 (1981); United States v. Lenz, 616 F.2d 960,

962 (6th Cir.), cert. denied, 447 U.S. 929 (1980); United States v.

Klauber, 611 F.2d 512, 517-520 (4th Cir. 1979), cert. denied, 446 U.S.

908 (1980); United States v. Richardson, 588 F.2d 1235, 1241 (9th Cir.

1978), cert. denied, 440 U.S. 947 (1979); In re Daley, 549 F.2d 469,

479-480 (7th Cir.), cert. denied, 434 U.S. 829 (1977); United States v.

Graham, 548 F.2d 1302, 1315 (8th Cir. 1977); United States v. Cald-

well, 543 F.2d 1333, 1356 n.115 (D.C. Cir. 1974); United States v.

Alessio, 528 F.2d 1079, 1081-1082 (9th Cir), cert. denied, 426 U.S. 948

(1976); Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir.), cert.

denied, 423 U.S. 933 (1975); United States v. Allstate Mortgage Corp.,

507 F.2d 492, 494-495 (7th Cir.), cert. denied, 421 U.S. 999 (1974); see

also Note, The Case Against a Right to Defense Witness Immunity, 83

Colum. L. Rev. 139 (1983).

5Petitioner’s assertion of an intra-circuit conflict within the Ninth

Circuit (Pet. 9-10) also does not call for this Court's review. See Wis-

niewski v. United States, 353 U.S. 901 (1957).

7

Government of Virgin Islands v. Smith, 615 F.2d at 972.

Thus, there must be “a probable certainty that * * * [the]

expected testimony * * * would * * * in itself exonerate

{the defendant].” United States v. Lowell, 649 F.2d 950,

965 (3d Cir. 1981). See also United States v. Bazzano, 712

F.2d 826, 851 (3d Cir. 1983) (en banc) (Adams, J., dissent-

ing from the judgments of affirmance). Here, Bronk’s testi-

mony would have related merely to petitioner’s “standing”

to seek the suppression of evidence, not to his guilt or

innocence of the charges against him. Cf. McCray v. Illi-

nois, 386 U.S. 300 (1967); compare Roviaro v. United

States, 353 U.S. 53 (1957). In addition, Bronk’s testimony

was hardly essential since, under Simmons v. United

States, supra, petitioner himself was free to testify at the

suppression hearing about the existence and nature of any

arrangement he had with Bronk. And in any event the

district court’s ruling suggests that petitioner’s motion to

suppress would have been denied even if Bronk had testified

about an agreement to return the heroin to petitioner at

some later time (see Tr. 55-56). Thus, this case is a far cry

from the unique situation in Smith, in which the Third

Circuit found judicial immunity for a defense witness to be

appropriate.¢®

*In Smith, the defendant requested the court to confer immunity on

an exculpatory witness, a juvenile subject exclusively to the jurisdiction

of local Virgin Islands authorities. The local authorities offered the

witness immunity, but, as a matter of prosecutorial courtesy, stated that

the offer was conditional on the consent of the United States Attorney,

who inexplicably refused to consent.

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JANIS KOCKRITZ

Attorney

OcTOBER 1984

DO}J-198+4-10