Opposition Brief — Gordon v. United States

PO POS OS OOOO OOOO SOOSCSCTOSSSOTEOOSSSSSSSOSSSOCOOCOSSCOSOCSESCCCS

CITATIONS

Abel v. United States, 362 U.S. 217 .......... 6

Alderman v. United States, 394 U.S. 165... 10, 11

Anderson v. United States, 406 F.2d 529.. 9

Boehm v. United States, 271 Fed. 454...... 9

Chimel v. California, 395 US. Té8........... 6

Donaldson v. United States, 82 F.2d 680.. 9

| Glavin v. United States, 396 F2d 725,

4 certiorari denied, 393 U.S. 926 +

: Gregory v. United States, 364 F.2d 210,

certiorari denied, 385 U.S. 962 _............. 8

a Gurleski v. United States, 405 F.2d 253,

Ee certiorari denied sub nom. Smith v.

United States, 395 U.S. 977 ..................

Harris v. United States, 331 U.S. 145.......

a Leary v. United States, 395 U.S. 6 ..........

4 Matthews v. Correa, 135 F.2d 534 ............

a Moylan v. United States, No. 885, this

4 Term, certiorari denied, February 24,

AwOonn

g Ea ERATE RII Se a a 11

a Rugendorf v. United States, 376 U.S. 528..

2 Seymour v. United States, 369 F.2d 825,

certiorari denied, 386 U. _ | __ geaeeinen

Cases—Continued

Teresa v. United States, No. 1200, this

Term, certiorari denied, April 27, 1970..

Turner v. United States, 396 U.S. 398 ....

United States v. Eisner, 297 F.2d 5965,

certiorari denied, 369 U.S. 859 ..............

United States v. Licausi, 413 F.2d 1118,

certiorari denied, 396 U.S. 1006 ............

United States v. Van Leeuwen, No. 403,

this Term, decided March 23, 1970 ......

United States v. Williams, 405 F.2d 14....

Wangrow v. United States, 399 F.2d 106,

certiorari denied, 393 U.S. 933 ............

Warden v. Hayden, 387 U.S. 294..............

Wilson v. United States, 162 U.S. 618 ......

Zap v. United States, 328 U.S. 624 ..........

Statutes:

es SE sacsseiicsorciniennsssecniainisniicessenatonets

Fe TD mh cectee esncrmentatvonsnsenrinnntticn

In the Supreme Court of the United States

OCTOBER TERM, 1969

No. 1840

HERMAN GORDON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals is not yet

reported.

JURISDICTION

The judgment of the court of appeals was entered

on January 26, 1970. A petition for rehearing was

denied on February 18, 1970. On March 20, 1970,

the petition for a writ of certiorari was filed. The

(1)

2

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether during the course of a valid search

pursuant to warrant, it was proper to detain items

not described in the warrant but which appeared

upon discovery to be stolen property.

2. Whether it was proper to instruct that posses-

sion of recently stolen merchandise permitted an in-

ference that the possessor knew the property was

stolen, in view of the time which elapsed between

the theft and the discovery of possession.

3. Whether reversal by the court of appeals on

one count required reversal of the remaining two

counts.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of Florida, petitioner

was convicted of unlawful receipt of merchandise

stolen from an airport while the merchandise was

moving in foreign commerce (Count 2; 18 USC 659);

and unlawful receipt of merchandise stolen and then

shipped in interstate commerce (Counts 3 and 4; 18

USC 2815). On February 19, 1969, he was sen-

1 Petitioner was arraigned on four counts. Count 1 involved

the alleged receipt by petitioner of jewelry stolen from a ship-

ment in foreign commerce in January 1968. This count, which

gave rise to the search warrant used to search petitioner’s

home, was dismissed before trial because an important witness

failed to appear (Pet. App. 12). Petitioner was convicted

3

tenced to concurrent sentences of ten years’ impris-

onment on each count.

The evidence showed that on August 20, 1966, 345

watch movements, imported from Switzerland and en

route to a United States consignee, were stolen from

a Chicago airport (Count 2; see 2 A. 460-464)? On

December 2, 1967, approximately $250,000 worth of

jewelry was stolen in an armed robbery of a Garden

City, New York, jewelry store (Count 8; see 2 A.

466-493). On March 18, 1968, F.B.I. agents searched

petitioner’s home in the Miami, Florida, area pur-

suant to a search warrant and found the stolen watch

movements and a portion of the stolen jewelry (1 A.

115-128, 2 A. 401, 479-480; Pet. App. 2-3).

The circumstances of the search gave rise to mo-

tions to suppress. The evidence showed that for some

months prior to the search F.B.I. Agent Yablonsky

had attempted to establish rapport with petitioner in

an effort to obtain information from him regarding

the criminal activities of jewel thieves (2 A. 288-

of the remaining three counts. Count 4, which involved the

interstate transportation of jewelry stolen in an armed rob-

bery of an Atlanta department store, was reversed by the

court appeals on the ground of inadequate value for federal

jurisdiction (Pet. App. 13-14).

*“A.” preceded by the volume number refers to petitioner’s

four volume appendix of the proceedings below. This appen-

dix, on file with the Clerk of this Court, includes the tran-

scripts of the hearings held on the motions to suppress. It

does not include the trial transcript, other than the transcript

of the conference held on the final charge to the jury, argument

of counsel, and the charge to the jury. Volume 8 A. contains

the exhibits, while 4 A. contains the court of appeals’ opinion.

4

289, 292, 323-326, 343). On March 14, 1968, Agent

Yablonsky went to petitioner’s home to inquire if

petitioner was the Herman Gordon listed on a flight

manifest as a person who had recently traveled from

Florida to the Dominican Republic (2 A. 297-302).

While in the home, Agent Yablonsky observed (2 A.

339-340) two distinctive cups (2 A. 370). After

examining pictures of recently stolen articles on file

with the F.B.I., he concluded that they had been

part of a 187-piece shipment of Greek jewelry re-

cently stolen from a foreign shipment (Count 1).

Yablonsky made an affidavit and obtained a warrant

to search petitioner’s apartment for this shipment

(1 A. 1-6). During the course of the search which

followed, the agents had found only the two cups

Yablonsky had noted when they came upon a locked

closet. Petitioner asked them not to search it, prom-

ising that if they did not do so, he would supply

them with information (2 A. 315, 381). Agent Ya-

blonsky told him no deal could be made (2 A. 315).

Petitioner unlocked the closet (2 A. 382, 429).

In the closet, the agents saw suitcases piled on one

another and items of jewelry lying on the floor (2 A.

316). After cursory examination of the contents,

Agent Yablonsky left to get a second warrant. Some

agents remained in the apartment while petitioner

kept the key to the closet (2 A. 816-320, 382, 429,

3 Petitioner was regarded as an associate of known jewel

thieves and had some years before participated in the negoti-

ations for the return of the Star of India Sapphire and the

DeLong Ruby, stolen from the American Museum of Natural

History in New York City (1 A. 37, 148-149).

5

437). After the second warrant was obtained, the

agents proceeded to make a thorough search and a

detailed inventory.* Among the items found were 22

pieces from the Greek jewelry shipment, and the

watch movements and jewelry which became the

bases of counts 2 and 3 of the indictment (1 A. 115-

128, 2 A. 401, 479-480). The return on the first

warrant listed as seized thereunder only the 2 cups;

the return on the second warrant included the 22

additional pieces of Greek jewelry as well as numer-

ous other items.

The trial court denied the motion to suppress, ruling

that the search was not a general exploratory search

for evidence, but was in valid execution of the ini-

tial search. Although it ruled that the second war-

rant was of no significance since the “seizure” had

occurred before the warrant was obtained, it held

that the agents had authority to seize the items other

than those mentioned in the warrant (2 A. 517-521;

Pet. App. 4).

ARGUMENT

1. Pointing to the fact that the return to the first

warrant listed only 2 cups, and relying on the dis-

trict court’s ruling that the second warrant was of

no significance, petitioner argues that the courts be-

low erred in holding that the agents had authority to

seize the stolen items other than the Greek jewelry

to which the initial warrant was directed. (Pet.

12-14), These items, however, were uncovered in the

course of a lawful search.

* With the consent of petitioner’s counsel, the nine suitcases

_ Which were seized were inventoried at a later time.

The officers were searching for the 187 items of

Greek jewelry, items of small bulk and which had

been contained in a small box. (1 A. 1-3, 2 A. 306-

807, 334-335, 344-346). Since only two of these

stolen items, the cups, were visible when the agents

entered the apartment, it was proper for them to

search the entire apartment for the other pieces, in-

cluding closets and drawers where the stolen mer-

chandise might have been secreted. See Warden vy.

Hayden, 387 U.S. 294.°

When, in the course of that lawful search, the

agents uncovered numerous other items of jewelry

in the house of a known associate of jewel thieves,

they were not required to shut their eyes to their

existence. A police officer may seize an item even

though “it was not one of the things it was his busi-

ness to look for.” Abel v. United States, 362 U.S.

217, 238; Matthews v. Correa, 135 F.2d 534, 536-

537 (C.A. 2); Gurleski v. United States, 405 F.2d

253, 258 (C.A. 5), certiorari denied sub nom.

Smith v. United States, 395 U.S. 977; United

States v. Eisner, 297 F.2d 595, 597 (C.A. 6), cer-

tiorari denied, 369 U.S. 859; Seymour v. United

States, 369 F.2d 825 (C.A. 10), certiorari denied,

386 U.S. 987; see Zap v. United States, 328 U.S.

624, 629. Having come upon wholesale quantities of

watch movements and other jewelry of great value

* Chimel Vv. California, 395 U.S. 752, is not to the contrary.

That case limited the areas to be searched when a search

made without a warrant is justified as incident to an arrest.

Where a warrant is obtained, the premises described may be

subjected to as thorough a search as the warrant permits.

7

the agents were authorized to seize them, as well as

the items of Greek jewelry that were named in the

warrant. See Harris v. United States, 331 U.S. 145.

Moreover, we do not believe that the district court

was correct in disregarding the second warrant. The

agents, who were lawfully on the premises, did not

remove the other jewelry but took precautions to as-

sure that it would not be tampered with during the

short period necessary to obtain a warrant. This

brief detention was not an unreasonable seizure un-

der the Fourth Amendment. See United States v.

Van Leeuwen, No. 403, this Term, decided March 23,

1970. The agents here showed scrupulous care in

getting a second warrant from the magistrate when

their lawful search for the Greek jewelry uncovered

new evidence of crime,

2. At trial, the court instructed the jury that

possession of recently stolen property, if not satis-

factorily explained, was a circumstance from which

it might reasonably infer, although it was not’ re-

quired to do so, that the possessor knew the property

had been stolen. The court explained that the jury

was not required to draw this inference; that the

term “recently” was a term without fixed meaning,

dependent on the nature of the property and all the

facts and circumstances shown by the evidence in

the case; and that “the longer the period of time

since the theft, the more doubtful becomes the infer-

ence which may reasonably be drawn from unex-

Plained possession” (2 A. 508). Petitioner objected

to this instruction (2 A. 451).

The court’s instruction was proper. As this Court

has held, possession of the fruits of crime soon after

its commission justifies a permissible inference that

possession is guilty possession. Wilson v. United

States, 162 U.S. 613, 619; Rugendorf v. United

States, 376 U.S. 528, 536-537. Unlike the statutory

inference held invalid in Leary v. United States, 395

U.S. 6, 29-53,° there is a rational relationship be-

tween unexplained possession of recently stolen prop-

erty and the inference of guilty knowledge. The in-

struction given in the present case amounted to no

more than permission to the jury to make a common-

sense deduction from the evidence. Its substance has

consistently been approved. United States v. Wil

liams, 405 F.2d 14, 17 (C.A. 4); Wangrow v. United

States, 399 F.2d 106, 118 (C.A. 8), certiorari de-

nied, 393 U.S. 933; Glavin v. United States, 396 F.

2d 725, 729 (C.A. 9), certiorari denied, 393 U.S. 926;

Gregory v. United States, 364 F.2d 210, 213 (C.A.

10), certiorari denied, 385 U.S. 962.

While petitioner complains of the 19 months which

elapsed between the theft and the proof of possession

as to Count 2, only 344 months elapsed as to Count

8. In this situation, the time lapses do not detract

from the propriety of the instruction as to recent

possession. Recency of possession is not measured by

any fixed standard of time; the circums*nces of each

case determine whether an inference of guilty knowl-

edge may be drawn from the possession of the stolen

property. Recency, therefore, is a relative term and

* Compare Turner V. United States, 396 U.S. 398, 405-418.

aa Hee ai, tn | [ll

9

presents a question of fact solely for the jury. Boehm

. v. United States, 271 Fed. 454, 457 (C.A. 2); United

States v. Licausi, 413 F.2d 1118, 1121 (C.A. 5), cer-

tiorari denied, 396 U.S. 1006; Anderson v. United

States, 406 F.2d 529, 534 (C.A. 8). In the present

case, the large quantity of watch movements and the

unique nature and high value of the jewelry stolen

raised, as the court of appeals concluded, “inherent

difficulties in disposing of stolen property of this char-

acter” (Pet. App. 13). Accordingly, there was no

error in submitting the matter of recency to the jury

for its determination on each of the two counts.’

8. Petitioner contends that the court of appeals’

reversal as to Count 4 requires reversal as to Counts

2 and 3 because of the danger of a “spillover” of

evidence from Count 4 to the two remaining counts

(Pet. 18-19). Count 4, the reversed count, pertained

to petitioner’s possession of the mountings for two

diamond rings which had been stolen recently from

an Atlanta, Georgia department store. The court of

appeals reversed the conviction because of specific

evidence in the record that petitioner acquired the

mountings without the diamonds (Pet. App. 13). In

that case, the value of the rings would not have been

*The government was not required to prove, as petitioner

asserts, that petitioner knew who had stolen the property

found in his possession, “nor when, where or how it had been

stolen” (Pet. 19). All that is required is that a defendant

must know the goods were stolen; he need even not know

they were stolen from an interstate shipment. United States

V. Licausi, supra, 413 F. 2d 1118, 1121 (C.A. 5), certiorari

denied, 396 U.S. 1006. See Donaldson v. United States, 82

F. 2d 680, 682 (C.A. 7).

10

sufficient to warrant federal criminal jurisdiction

under the statute. There was no doubt, however, as

to either the identity of the mountings or petitioner’s

possession of them. In these circumstances, and since

petitioner’s possession of the other items for which

he was charged was uncontestable, there was no pos-

sibility of prejudice.

After the petition for a writ of certiorari was filed,

it was discovered that during 1963-1964 petitioner

visited two locations where electronic surveillance of

others was being conducted; his voice was overheard

on two occasions. Petitioner had no proprietary inter-

est in those premises. The two logs contain some dis-

cernable references and advice, in criminal argot, as

to means of accomplishing criminal enterprises then

currently contemplated. But petitioner was not ar-

rested until March 1968, as a result of his receipt of

goods stolen in January 1968 from an international

air shipment (Count 1); and the subject matter of

the earliest count in time (Count 2) involved mer-

chandise stolen in August 1966, from another inter-

national air shipment, more than two years after the

overheard conversations took place.

The procedure which this Court has usually fol-

lowed, when advised by the Solicitor General that

the government has conducted electronic surveillance

of a convicted litigant, has been to remand the pro-

ceeding to the district court for a hearing to deter-

mine whether the interception was illegal and, if so,

whether the conviction was tainted thereby. F.g.,

Alderman v. United States, 394 U.S. 165. Resolu-

tion of the latter issue, if it is reached, has involved &

11

a determination whether the government used the

overheard conversations in “building its case against”

the accused. Alderman v. United States, supra, 394

US. at 183. Since it is apparent that the overheard

conversations of 1963-1964 in this case could have

had no bearing on petitioner’s possession in 1968 of

property which had been stolen and had moved in

interstate or foreign commerce in 1966 or thereafter,

remand for this purpose is unnecessary. See our sup-

plemental memorandum in Moylan v. United States,

No. 885, this Term, certiorari denied, February 24,

1970, and in Teresa v. United States, No. 1200, this

Term, certiorari denied, April 27, 1970.

CONCLUSION

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

WILL WILSON,

Assistant Attorney General.

BEATRICE ROSENBERG,

EDWARD FENIG,

Attorneys.

May 1970.

W ov. S. Government painting orrice; 1970 384001 671