# Opposition Brief — Massengill v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0740%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 833 ## Text Opinion bale... (du ioreas iio oat sen AS Psd ccasccecsuwauuess aie aae arg aceaale Questions presented ___._.-.....-.---:-------- > REN ncaa neo “ps aces eee CITATIONS - Cases: . Abel v. United States; 362 U.S. 217______- ee Bolger v. United States, 189 F. Supp. 237, af- firmed, sub. nom. Bolger v. Cleary, 293 F. — 2d 368, reversed on other grounds, $71 US. Henry v. United States, 361 U.S. 98... ---- eI Lander v. State, 238 Ind. 680, 154 N.E. 2d 507. Marron v. United States, 275 U.S. 192_.-.--. Torres v. United States, 270 F. 2d 252, certi- orari denied, 362 U.S..921_.....-..-.---.- . United States v. Kelley, 186 F. 2d 598, certi- orari denied, 341 US. — akeaea saeco Statutes: D wo 7188-27465 m ON Ne ‘10 a the Supreme Court of the aiid sine Ocrosér TERM, 1965 | eho a 7 “No. 335 | Roy Wricut De WELLES, PETITIONER — iets Ber te dees | ~ Unrrep Srares or AMERICA be ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED . - STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT "BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion eo 3 the court of appeals (Pet. App. A; RCA. et): is reported at 345 F.2d 387. - 7 : _ JURISDICTION “The judgment of the court of appeals was entatta on March 29, 1965 (Pet. App. B). A petition for re- hearing was denied on May 7, 1965. By order of Mr. . Justice Clark, the time for filing a petition for a writ of 2In conformity with . _petitioner’s designations (Pet. 1), . = CA.’ * refers to the volume containing the record in the . _ court of appeals, “R.T.” refers to the three-volume reporter’s transcript of the trial ‘proceedings, . and “C.T.” refers to the volume containing the clerk’s fueneenps of she matters before * the Raatriet court. (1) 2 certiorari was extended to and including July 6, 1965, and the petition was filed on that date. The jurisdic-— tion af this Court is invoked. wer 28 U. S. C. , 1254 Me Bone | QUESTIONS PRESENTED a Whether the trial. court: properly found that a _ search was incident to a lawful arrest by State offi- cials so that the items seized were ‘admissible as evidence. | 2. Whether the trial cotirt abused its diecretion i in denying petitioner’s second motion for a continuance.: ee 7 STATEMENT : Petitioner was convicted after a trial by jury, in the United Statés District Court for the- Southern District of Indiana, on seven counts of an indictment '. charging use of the maifé in furtherance of a: scheme to defraud, in violation of 18 U.S.C. 1341.7 He was sentenced to five years’ imprisonment on one count, and to five years’ imprisonment on each of the re- maining six counts, the latter terms to run concur- rently with ‘each other and consecutively to the term first imposed (R.T. 731). .The court of appeals. unanimously affirmed the conviction. ~~ : ak 1. The evidence disclosed that petitioner, a Cali- fornia chiropractor (R. T. 481, 511-512), had. devel- ‘oped a machine which he called a “Detoxacolon” (R.T. 516). It was. assertedly to be used for: the treatment of asthma, cancer, arthritis, high blood } pres- sure, polio, epilepsy, genital problems, and numerous ? Richard’ Broeringmeyer, who was also named in the indict- | * ment, mee guilty on one count before trial (R.T. 5). ~ ‘and were anxious to be relieved of the responsibility “doctor” (RTM). 3 other ‘ailments: (R.T.- 19, 128-131, 137-138, 307-828; 400). . To effect such treatinents, the machine pumped water and oxygen into the patient’s colon (R.T. 133, 520, 535).°. In 1961, petitioner persuaded one Broer- ingmeyer to bécome a salesman of his. machine (R.T. 9). In May 1962, Broeringmeyer cominunicated with an Indiana physical therapist called ‘‘Doctor” Bull (R.T. - 25-27, 172). Bull and another physical therapist, | “Doctor” Jackson, had been supporting an alcoholic’ chiropractor named Odom (R.T.-173-176, 188-189), (R.T.* 176, 180, 189-190, 193). Thinking that - peti- ‘tiorier’s machine might help Odom establish. some kind’ of practice (R.T. 177), they rented an office for . | Odom in Shelbyville, Indiana (R.T: 183), and executed an agreement with Broeringmeyer for the conduct of a “‘élinic” and the purchase of the machine (R.T. 28-- * | 29, 33-34). Later that month a “Detoxacolon” ‘and an X-ray machine were brought to Shelbyville by ssabithions and his salesman and were installed in the i office rented for Odom (R.T. 38, 81, 87-88). ‘ Shortly after his arrival in Shelbyville, petitione® had several thousand postal cards printed and maile® to rural box:holders in the Shelbyville area (R.T. 86-87, 212-216, 218-220, 229-293, 996-997). "The cards . offered a thorough, free physical examination to any * Recognized medical and. chiropractic oubhenitinn considered the use of the machine not only valueless, but dangerous (R. - 806, 309, 324, 826, 384-835, 838-339, 342, 352, 666-668) . “A physical. aaa is not. suthorized, 9.) use the title a ~ ~ Aid 4 recipient who telephoned for an appointment during the designated six-day period, Although Odom was " not aware of the existence or nature of the cards (RT. 198), they were sent out in his name, and they set forth his telephone number and the address\ of - the office rented for him. The telephoned appoint- ments prompted by the advertisemenf#wore booked by. petitioner and Broeringmeyer (R.'l. 88-89, 199). - Operation of the six-day “clinic”? began’on June 4 | Upon the arrival of each patient, cither petitioner or | Brocringmeyer* would: give him a perfunctory ex- amination, substantially more limited than that which | had been advertised," and listen to his complaints (R.T. 64-65, 94-95, 151, 365, 361, 395, 409-410, 420- — 422). Petitioner or Broeringmeyer would then advise an X-ray of the colon for which a charge of $10 would be made (R.T. 64-65, 103-104, 151-152, 366, 387, 396, — 410, 423). The patient would be given a barium enema and X-rayed. Witliin half an hour, petitioner would return with an X-ray negative of the patient’s — colon and an X-ray negative of an allegedly perfect colon: for comparison (RT. 66, 76, 154, 165, 368, 384, - . 411, 415, 425). Petitioner would point. out to the patient any differences between the two, describe the difference as an abnormality, and attribute to the . difference the symptoms of which the patient had | * Although Odom was occasionally at the office, he was always - inebriated and he examined no patients and performed no funct- tion of any kind (R.T. 92, 94, 110, 185, 197, 199-200). * Petitioner examined one patient by looking into his eyes and - by feeling his back and sides. (R.T. 410). Another was given . no examination at all before being told an X-ray would be %" Recessary- (R.T. 50-51, 57). 6 earlier complained (R:T. 66, 76, 154, 384-985, 399-400, -_ 415, 425). Petitioner would then suggest a prompt course of treatments with the “ Detoxacolon”’ machihe, quoting a price between $125 and $2,000 for the series” (R.T. 67, 155, 369-370, 385-386, 401, 412, 425-426), and offering a discount if the entire amount were prepaid in cash (R.T. 67, 156, 390, 401, 413). If the patient agreed to the series of treatments, the first. would be - | scheduled at the time of payment (R... 69, 157, 403). 2. One of the patients who arrived for a free ex- a amination was an 80-year-old man who became sus-. Ppicious of the procedure (R.T; 40, 44-46), The man "later. talked to a friend (R.T. 51) who had developed similar suspicions after visiting the clinic, The | friend reported the entire matter to the local chief of. police (R.T. 250-251). The chief, with the city " prosecutor and the local sheriff (R.T. 235), went to the clinic on June 5. to see if the operators were “legally licensed’? (R.T...251), As they approached the office, the “hhiet of police met an acquaintance who - said that he. had just paid for a trosgnent GT. ~ 251-252). . . The chief then entered the office, observed pa persons sitting in the waiting room, and introduced . himself to Mrs. Broeringmeyer (R.T. 235, 253). Mrs. . Broeringmeyer took him to meet petitioner’s wife ‘(R.T. 235), who came out of the “Detoxacolon”’ treat- ment room -in which a patient was. lying on.a cot (R.T. 236-237, 253, 258). . Petitioner’s wife asked Soe. the chief to accompany her into another room “away from the Panett (R.T. 236, 254). » They posse a . 2- darkroom (R.T. 237), and entered a room containing an X-+yay machine and a desk upon which lay several . X-rays ‘and a stethostope (R.T. 236-237, 254,256). Thé chief asked petitioner’s wife the number ‘of’ doe- ~tors-in- fhe “elinie” and the name of the doctor in : gharge. (B-F.257). She replied that they had two doctors, petitioner and “‘Doctor’’ Broeringmeyer, and that “Doctor” Broeringmeyer was in charge (R.T. 237, 257). She then exeused herself ,for the announced _ purpose of releasing a patient (R.T. 237, 257-258), The sheriff thereupon questioned Mrs. Broeringmeyer, who ' said. that the ‘doctor in —— was Acwpee A(R.T. 238). WAAL. Petitioner soon entered the room: and stated that Doctor” Broeringmeyer was in charge (R.T. 258, 276). Broeringmeyer then came out of the darkroom and replied that petitioner was in charge (R.T. 259, 277). The chief said that he had heard enough, and asked: ‘whether ‘either of two men had a “‘license to operate this clinic, chiropractor license” (R.T.- 259). After each first stated that he was licensed (R.T. 259, _ . 277), Broeringmeyer admitted that he was not a:¢ehi- ropractor (R.T. 260, 277), and petitioner explained | that he could not‘ find ‘his license (R-.T. .260). : The _ ehief told Broeringmeyer he “was under arrest. and that, if” Eperiniady: didn’t ‘ have ‘a license;' he: ‘was under arrest 7: (RT. 262, 267, 269). The chief then seized” the: book in ‘whith: the patient’s appointments. " were’ reeorded, an ‘instruetion book: on the ‘‘Detoxa- _ . eolon’’ ‘tiachine, some patient history cards, ‘and: sev- eral X-ray’ negatives:-(R:T. 262, 278, 301): Under , a OF ‘ the chief’s custody, petitioner: and Broeringmeyer’and — _ their: wives were taken pfo the police headquarters » (R-T. 260, 269, 278), where it was ascertained that no Indiana license had ever been issued for petitioner: ‘The ‘chief swore out a complaint charging both peti- tioner and’ Broeringmeyer with practicing chiroprac- | tics without a license (R.T. 260-261): The‘ objects _-geized from the clinic were admitted as evidence‘‘at the subsequent trial: The ‘court denied petitioner’s | motion to suppress (R.T. 240-241, 273; s see R.T. 472), finding that the search was incident t to a bnsaage arrest (RE 272-273). ! 3. On March 19, 1963, over nine months. tae - petitioner’ 's arrest by: the chief’ of police, the present | indictment was. returned (C.T. '4):° On’ April 1, petitioner, who was then staying in Mississippi, ‘was “arrested: by federal agents, taken before’ a eommis- sioner, and released on bond. He appeared with a retained attorney ‘on- April 25 ‘and ‘secured a, con+ tinuance of his arraignment (C.T. 10-11), which ulti- mately was held on June 14 (C.T.: 18).- On this - latter date, he assured his retained attorney that he --would furnish him with’a written history of the ease ahd with a list of proposed ‘witnesses ‘and. their ex- ‘pected. testimony (C:T. 28). ‘Thereafter’the attortiey — informed petitioner that the trial date had ‘been set for - September 80 (C.'T..28): On September 7, petitioner . _ wrote ‘his attorney ‘and the t#ial' judge ‘that ‘he “was il, atid that: he needéd'a' 90‘day' postponement ‘sf the trial::(C.P.\28;Pet. App.’18): Petitioner's attorney moved for a continuance on this basis on September 19 se al al (C.T. 20-21), and on September 24 the motion was granted (C,T. 24). ' Two days later, the court ordered that petitioner appear for a physical examination at the office of a named physician in Mississippi (C.T. 25). Petitioner did not appear. On October 14, the attorney wrote petitioner that the trial had been reset 7 for December 9 (C. T, 29), and i in three separate letters | advised. him to. see the @bysician designated by the court in order to verify that he was critically. ill (C,T, 28-29), In the last such letter, dated November 11, the attorney also advised ‘petitioner that unless a gub- stantial portion of the retainer fee were soon. paid, he _ -weuld have. to withdraw from the case (C.T. 29), On. November 19, not having heard from’ petitioner, the | attorney explained the above facts to the court’ and ‘moved. to withdraw. (C.T. 27-30). The motion was . granted and petitioner was notified (C.T. 31; Pet. 7)... On November 25, petitioner secured a second, ston ney to represent him (C.T. 33). On December 4, the second attorneymoved. for a: continuance, alleging that , petitioner had been hospitalized with a gall — bladder inflammation from September 23 to October 7 _ . and was to avoid the stress of a trial prior to an operation scheduled, for late December, and alleging — that the attorney would not-have time to prepare 2 defense by December 9 (C.T. 32-33), The motion was denied. on December 4 (0.T. 36). A. motion. to:dis- - Maigs the indictment was denied on December 6 (C,T. * 38-40) ; trial-began on. Decémber 9 (R.T. 2); and the presentation. of the. neteuee case aorta Descepber - (R.T, 469, 478), . : chief of police plainly had probable from. the “elinie” : _ by the chief of police were admissibly as evidence since \ they were obtained BS incident to a valid arrest. The " e to believe, and did believe (R. T, 267), that petitione Broer- ingmeyer were practicing chiropractics without ‘a li- cense, in violation: of a State statute (Burns? ae Stat. Ann. § 63-1336 (1961 Repl.)). State law em- ‘powered the ‘chief to -arrest such observed niis- demeanants without a warrant. Lander v. State, 238 — Ind, 680, 154 N.E. 24:507. He effected the- ‘arrests — by, expressly announcing that Broeringmeyer wag under arrest and that petitioner was also “if he didn’t have a license” (R.T. 262), by stating . that they “would have to go’’ with him. to. the poli¢a’sta- tion (R.T. 261), and by actually assuming. custody - over them (R.T.. 269). There. is no merit. to. peti- ‘tioner’s suggestion that. he was not then under arrest because the chief’s announeement. was conditioned on ~-a-future finding-that- petitioner-had no license (Pet. 9-10). The existence of an arrest is not, predicated on the words employed, but on the intended assump- — tion of custody and actual ‘assertion of dominion and control. See Henry.v.-United States, 361 U.S. 98; Bolger.v. U nited States, 189 F. Supp. 237, 251 (S. D. | N.Y.), affirmed sub nom. Bolger v. Cleary, 293 F. 24 368 — (C,A, 2), reversed on other grounds, 371 U,S, 392," « i. In any event, there was no ambiguity in the words used to announce the arrest of Broeringmeyer (R.T. 262, 269), and the accompanying’ search was ndepeatieatty lawful as an incident ‘of that arrest. - ‘ : ol f | “he . ‘Contrary to petitioner’s allegation (Pét. 10), the © ‘incidental search occurred before the chief ‘took pe- titioner and’ Broeringmeyet to‘ the station (R.T: 262). The chief testified that the objects were seized by him — (R.T. 262,278, 301-302), and on sdme of them he ©’ _ identified his initials ‘written at the time of ‘seizute - '(R.T. 279-281)" The objects seized were “the things ‘used to carry on the criminal enterprise” (Marron-v. United’ States, 275'U.S. 192; 199) and were, therefore, subject to seizure at the time of arrest. Abel: v. - United. States, 362 U. S. 217, 237-238. ° > 3 2. There was no error in the denial of petitioner’s second motién for a continuance. The only grounds offered to secure 4 delay were petitioner’s ‘need - for _ pre-surgery rest and the attorney’s need for more time to: prepare. In evaluating petitioner’s need for rest, _ the court properly could consider petitioner’s apparent disinclination to be examined by the court-designated physician, even after the date originally set (C.T. _28-29)." , As to the aHeged “need” for more time to * The chief did testify that he “Jett Captain Kelley. there to” pick up some additional things” “(R.T. 262), but there is no basis in the record for assuming that any of the items intro- duced into evidence were the “additional things" ehh Captain _ Kelley had obtained. _ ' © A letter from. another aber actomipaiiied the motion (C.T.. _ $5), but in. view of the nature of the case, it was especially important that the-courtknow the identity and reputation of any doctor submitting written statements. As the court later observéd, 4 doctor’ submitting a statement could be “one of [petitioner’s] many associates” (R.T.. 725). For example, Dr. .Hawk, tlie medical doctor whose letter petitioner. has lodged with the Clerk of. this Court, was & eeptuagenarian on the staff of a now-defunct clinic administered by petitioner (R.T. 710-711). | | the indictment was served and two weeks after the second attorney was retained was an unreasonably — early time to begin trial. See United States v. Kelley, 186 F.2d 598, 600 (C-.A. 7), certiorari denied, 341 U.S. 954. The limited time for the second attorney’s . preparation was directly attributable to petitioner’s lack of: cooperation with -his first attorney. See Torres Vv. United States, 270 F. 2d 252, 254 (C.A. 9), ~ certiorari conten, 362 U.S. 921." , CONCLUSION Ree act : For the reasons stated, it is respectfully submitted. that the petition for a writ of ‘certiorari should be denied. | : = ta er S. Siac, : ee - — Aeting Solicitor General. | . Frep M. Vinson, Jr," ~ Assistant Attorney General. “BEATRICE ROSENBERG) © Ronse L. Garner, as. prepare, ri Ss not appear that eight months after _ Aveusr 1965. U.S. GOVERNMENT PRINTING OFFICE: 1965 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0740%3A2. Public record. Not legal advice.