# Petition for Writ of Certiorari — Alexander v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1387%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1024

## Text

Opinion of Court of Appeals ....................2404. A-1

Judgment of Court of Appeals ....................... A-7
Order of Court of Appeals Denying Rehearing .......... A-8
AUTHORITIES
Cases
Page

Babbits v. McCann, DC E Wis. 310 F Supp. 293 app dism

ED ocd cede nana seaman en weed 9
Bollenback v. U. S., 326 US 607 (1946) ................... 8
Burgett v. Texas, 389 US 109 (1967) ..................... 10
Coolidge v. New Hampshire, 403 US 443 (1971) ........... 7
Delgado v. U.S., 9 Cir. 327 F2d 641 (1961) ............... 8
Griffin v. California, 380 US 609 (1965) .................. 9
Hardin v. Department of Health, DC E Wis. 323 F Supp.

DET cbcc¢ttdaenbaskebvedsusuedoivaerottented 9, 10
Miranda v. Arizona, 384 US 436 (1966) .................. 8,9
People v. Belous, 71 C2d 954, 80 Cal. Rptr. 354, 458

EEE AE, AE SSN g
People v. Malkin, 250 NY 185, 164 NE 900 (1928) ........ q
People v. Marendi, 213 NY 600, 107 NE 1058 (1915) ....... 9

State v. Hawkins, 255 Or. 39, 463 P2d 858 (1970)

AUTHORITIES

Continued
Cases — Continued

Page
State v. Long, 243 Or. 561, 415 P2d 171 (1966) ............ 8
State v. Shipman, 2 Or. App. 359, 468 P2d 921 (1970) ....... 8
Stump v. Bennett, 8 Cir. 398 F2d 111 (1967) ............. 8, 10
Thomas v. U. S., DC Cir. 121 F2d 905 (1941) ............. 9
U.S. v. Flanagan, 5 Cir. 423 F2d 745 (1970)............... 7
U. S. v. Griffin, 6 Cir. 378 F2d 445 (1967)................. 9
U.S. v. Levi, 7 Cir. 177 F2d 827 (1949) .................4. 9
U.S. v. McKinney, 6 Cir. 379 F2d 259 (1967).............. 9
See Cy, WU A OE HUE ove ccvcnvescas recesses 8, 10

Statutes

Page
Sd snd upethedunadieendeds oeek Geaeea ce Sg
cul ect ceucashn Gained Maka eew ee 8, A-2
EERE per ene Serre NTT RerrEr Ay 1
Ee OE OR a ic ee ee suvwedackseuesewes 7, A-l
Sr ea Tee re 7,8
as cod eee kda ben RENE eLMN ERED 2

EE oon Geek wre ee indescacagenisekeuussaend 2

Supreme Court of the United States

OCTOBER TERM 1972

JAMIE DEAN ALEXANDER,
Petitioner,
v

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT

Jamie Dean Alexander respectfully prays that a writ
of certiorari issue to review the judgment of the United
States Court of Appeals for the Ninth Circuit entered in
the above entitled case on July 5, 1972.

OPINION BELOW

The opinion of the Court of Appeals is not yet re-
ported (Appendix p A-1). The District Court gave no
opinion.

JURISDICTION

The jurisdiction of the District Court for the District
of Oregon was founded on 18 USC § 3231. The jurisdic-

2

tion of the Court of Appeals was founded upon 28 USC
§ 1291.

The judgment of the Court of Appeals was entered on
July 5, 1972 (Appendix p A-7). A timely petition for
rehearing was denied on August 16, 1972. This petition
for certiorari will be filed by September 15, 1972. This
Court’s jurisdiction is invoked under 28 USC § 1254 (1).

QUESTIONS PRESENTED

1. When «a search warrant is issued to search for and
seize stolen gold in an automobile securely in police
custody, and none is found, but unknown substances
are found which are suspected to be illegally pos-
sessed drugs, may they be seized without an additional
warrant?

2. When the elements of the crime charged a
possession of drugs without a prescription, can the bur-
den be placed upon defendant to prove his innocence
without violating the due process clause of the Fifth
Amendment?

3. When White and Alexander came in Alexander’s
automobile with the stolen teeth, does any logical basis
exist for attributing the drugs found in the back seat
of the car to Alexander rather than to White or to both?

4. Was the instruction proper that recent possession
of the stolen property allowed an inference that de-
fendants knew they were stolen?

5. Was it permissible for the government to show a
defendant when questioned about this charge, had
claimed the Fifth Amendment?

6. Is it permissible to impeach a defendant witness
by showing a conviction, but without judgment, for
attempted abortion under the old Oregon law?

STATEMENT OF THE CASE

This is two appeals from two convictions that were
consolidated because they arose out of interrelated
transactions.

The first is the conviction of Jamie Dean Alexander
of 6 counts of possession of controlled drugs without a
prescription after trial by a judge without a jury upon
which sentence of one year was imposed (I, pp 1-2, 9,
17, 21).

The second is the conviction of Kenneth Eugene
White and Jamie Dean Alexander of one count of re-
ceiving stolen teeth, and one count of conspiracy to do
so after trial by jury (I, pp. 4-5, 19-20). A third de-
fendant, Lawrence Bernard, was tried by the judge
without a jury, and acquitted (V, p. 473). White was
sentenced to four years on these counts. Alexander was
sentenced to four years on each count, with an additional
$5,000 fine on Count I (I, pp. 22-23).

All sentences were concurrent (I, pp. 21-23), and
defendants were bailed pending appeal.

Facts Relevant to Issues
1, After the arrest of defendants on the charge of
receiving stolen teeth, which teeth were in their posses-

sion, a search warrant was procured to search Alex-
ander’s automobile in which defendants had arrived,

4

for gold also stolen with the teeth (Exh. 1 and 2, Exh.
20 and 21).

The car and its contents were at that time safely
in the custody of the Portland Police Bureau (V. p. 14).

No gold was found in the search, but a paper sack
was found in this car “containing 12 bottles of unknown
substance”, which was taken (I, p. 12, Exh. 1 and 2,
Exh. 20 and 21) without an additional werrant (V.
p. 14).

After examination by a chemist these were discov-
ered to be 6 types of controlled drugs (I, pp. 13-15, II,
pp. 2-3), and Alexander was charged with 6 counts of
possession without prescription (I, pp. 1-2).

Defendant Alexander moved to suppress this evi-
dence on the ground this material was not described in
the search warrant and was not known to be contra-
band or seizable (I, pp. 10, 11; IV, pp. 7), which was
denied (IV. p. 22).

2, 3. No other evidence was offered as to Alexander’s
possession of these drugs, and no evidence was offered
that he did not have a prescription for them, the Gov-
ernment apparently claiming defendant Alexander had
the burden of establishing lawful possession (II p. 39).

Defendant Alexander moved for judgment of acquit- .
tal for inadequate proof of possession by Alexander, for
failure to show lack of a prescription and placing the
burden of disproving an element of the charge upon
defendant violated due process under the United States

5

Constitution (II, pp. 28-29, 31, 35, 38-39). This motion
was denied and defendant convicted (I, p. 17, II, p. 48).

4. It was unquestioned that the teeth which were
the basis of the receiving and conspiracy indictment
were stolen in a burglary of a Denver dental supply
house (II, pp. 4-28).

The defendants had twice received teeth from a
Robert Burr, a Denver dental technician, which they
had sold in the first instance ti. Dr. Lawrence Bernard,
Oregon’s largest practicing dentist (IV, pp. 243-247),
and on the second occasion had attempted to sell them
for a commission to a Portland dental supply house,
Western Dental Equipment and Supply Company (IV,
p. 113), upon Dr. Bernard’s suggestion ( IV, pp. 251-
252), whose manager became suspicious and caused
their arrest (III, pp. 103-117). Nothing was said to
indicate the teeth were stolen, and the price offered
was actually high (III, p. 121). There was nothing in
the history of this company to indicate it would buy
stolen merchandise (III, p. 122).

While there had been no repercussions over the sale
of the first lot of teeth, which had been paid for by two
checks (IV, p. 246) and signed with White’s correct
name, address and telephone number (IV, p. 224, Exh.
30, 31), the government offered evidence that these also
had been stolen (III, pp. 186-189).

To establish that defendants knew the teeth were
stolen in both instances, the government used Harriet
Burr, one of the thieves who had transported the teeth

interstate (III, p. 67), as a witness that she had told
them so (III, pp. 32, 43, 47, 90-91).

Mrs. Burr testified under a grant of immunity for
herself and her husband, both from the United States
and from the State of Colorado (III, pp. 32, 67-69),
including lying before the Grand Jury (III, pp. 72-73).

Defendants as witnesses denied they knew or had
been told the teeth were stolen (III, pp. 212-213, 215-

sively, testified that defendant White would not talk
about the reason for his arrest (III, p. 153). Defendants

7

moved for a mistrial (III, p. 153), and in the alternative
to have it stricken and the jury instructed to disregard
this (III, p. 155), because it called for an inference
from an exercise of Fifth Amendment rights (III, pp.
153-161). This was denied (I, p. 18).

6. Defendant Alexander, over defense objection was
impeached by proof that he had been convicted but not
sentenced for attempted abortion under the old Oregon
abortion law, over defense objection to the lack of judg-
ment, lack of moral turpitude and the unconstitution-
ality of that statute (IV, pp. 255-264).

REASONS FOR GRANTING THE WRIT
The Court of Appeals for the Ninth Circuit has
decided important questions of Federal law which have
not been, but should be, settled by this Court.
ARGUMENT

1. Since the Fourth Amendment requires that a
warrant particularly describe the things to be seized,
seizures beyond its scope without further warrant are
severely curtailed to things immediately recognized as
evidence, not mere suspicion. Coolidge v. New Hamp-
shire, 403 US 443, 466 (1971); U. S. v. Flanagan, 5 Cir.
423 F2d 745 (1970).

2. The drug statutes involved state:

21 USC 331 (9) (3) (B)

“the possession of in violation of section
360 a (c) (2) of this ‘utes SS

21 USC 360 (c) (2)

“No person other than a person described i
subsection (a) or (b) (2) of this section shall ws

" [possess such drug unless such
obtained to a valid
drug was directly or passant to vali

This made it incumbent on the government to prove
Alexander did not have a prescription; it could not
place the burden upon him to prove his innocence. U. 8.
v. Vuitch, 402 US 62 (1971); Stump v. Bennett, 8 Cir.
398 F2d 111 (1968).

3. Since Alexander and White both came to the
staked out premises in Alexander’s car with the stolen
teeth, there is no logical basis for saying the drugs found
in this car could be attributed to Alexander’s posses-
sion. They could just as logically be White’s, or that of
both. Delgado v. U. S., 9 Cir. 327 F2d 641 (1961).

4. While possession must be shown under 18 USC
2315, knowledge that the property was stolen must
also be shown. Certainly it is illogical to say that proof
of mere possession without more suffices to prove
knowledge. Bollenback v. U. S. 326 US 607 (1946);
State v. Long, 243 Or. 561, 415 P2d 171 (1966); State
v. Shipman, 2 Or. App. 359, 468 P2d 921 (1970).

5. The admission into evidence that the defendant
claimed his Fifth Amendment right to silence when
questioned by an FBI agent as to the facts of this
charge had no legitimate purpose. Miranda v. Arizona,

384 US 436, 468 (1966); U. S. v. McKinney, 6 Cir. 379
F2d 259, 262 (1967). Its only use could have been to
call for an adverse inference from such claim. Griffin
v. California, 380 US 609 (1965).

DC Cir. 121 F2d 905, 907 (1941); U. S. v. Levi, 7 Cir.
177 F2d 827, 829 (1949); People v. Marendi, 213 NY
600, 616, 107 NE 1058, 1063 (1915); People v. Malkin,
250 NY 185, 196, 164 NE 900, 905 (1928).

Furthermore it must be for a crime involving moral
turpitude. U. S. v. Griffin, 6 Cir. 378 F2d 445 (1967).
In this day and age a conviction for attempted abortion
under the now repealed Oregon abortion law does not
qualify.

ORS 163.060 (repealed 1969

People v. Belous, 71 C2d 954, 80 Cal. Rptr. 354, 458
P2d 194 (1969); Babbits v. McCann, DC E Wis. 310 F
Supp. 293 app dism 400 US 1 (1970); Hardin v. De-

10

partment of Health, DC E Wis. 323 F Supp. 899 (1971).
Its requirement that defendant prove the lawfulness of
the abortion, cf. State v. Hawkins, 255 Or. 39 45, 463
P2d 858, 861 (1970), also makes this statute unconsti-
tutional. U. S. v. Vuitch, 402 US 62 (1971); Stump v.
Bennett, 8 Cir. 398 F2d 111 (1967). A conviction pro-
cured by use of an unconstitutionally obtained judg-
ment cannot stand. Burgett v. Texas, 389 US 109
(1967).

For these reasons a writ of certiorari should issue to
review the judgment and opinion of the United States
Court of Appeals for the Ninth Circuit.

Respectfully submitted,

Howarp R. LONERGAN
Counsel for Petitioner

Al

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )
Appellee, )

vs.
KENNETH EUGENE WHITE,
Appellant.

)

)
UNITED STATES OF AMERICA, )
Appellee,
)

)

No. 71-2488

~

vs. No. 71-2489
JAMIE DEAN ALEXANDER,

Appellant.
(July 5, 1972]
Appeal from the United States District Court
for the District of Oregon
Before: HUFSTEDLER and CHOY, Circuit Judges,
and SCHNACKE, District Judge.*
PER CURIAM:

Jamie D. Alexander appeals his conviction by a
judge without a jury for possession of twelve bottles of
drugs without a prescription, in violation of 21 U.S.C.
§331(q) (3) (B).’ Alexander and Kenneth E. White
appeal their convictions by a jury of receipt and con-

*The Robert H. U:

neato. one heres stn Genes

She tlt teas Ateaiibenenten trol Act, 21 U.S.C. §§801 et seq.,
Act contained

o— §$331(q) (3)(B) and soon oar However, the Act
usual savings provision.

A2

cealment of stolen goods which had been moved in
interstate commerce, in violation of 18 U.S.C. §2315,
and of conspiracy to commit the substantive crime. We
affirm.

1. White and Alexander were arrested by the FBI
in Portland, Oregon, in possession of about 17,860 false
teeth worth between $25,000 and $26,000, which had
been stolen from the Dental Specialty Company in Den-
ver, Colorado. An accomplice testified for the Govern-
ment that she had told White and Alexander the teeth
were pilfered, but both men denied knowledge that the
goods were in fact stolen. Their objection to the jury
instruction that possession of property recently stolen,
if not satisfactorily explained, is ordinarily a circum-
the person involved knew the property was stolen, is
meritless. United States v. Linder, 442 F2d 419 (9th Cir.
1971); United States v. Redd, 438 F2d 335 (9th Cir.
1971).

2. During the examination of the FBI agent who
i i White after his arrest, the following colloquy
occurred:

Prosecutor: Did he (White to -
oiceiittecmaal yest

Witness: He to talk about certain things.
He would not about the reason for the arrest.

White contends that this statement called for the
jury to draw an adverse inference from his decision to
claim his Fifth Amendment right to remain silent. The
witness was not entirely responsive to the question

et a Cn eer ee AY eat oe eee =F

A3

asked; the prosecutor sought to elicit only White’s Port-
land address and telephone number. The inadvertent
situation here is not comparable to the overt prosecu-
torial misconduct of Griffin v. California, 380 U.S. 609
(1965). The error, if any, was harmless beyond a rea-
sonable doubt. Chapman v. California, 386 U.S. 18
(1966).

3. Alexander objects to the Government’s use of a
prior Oregon conviction to impeach him when he took
the stand in his own behalf. Three years before the trial,
Alexander was found guilty of manslaughter abortion,
a felony in violation of ORS §163.080 (repealed, 1969).
He received a suspended sentence, with five years
probation.

Alexander argues that this conviction was improp-

_ erly used to impeach him. First, he contends that since
* his sentence was suspended, no judgment was imposed.
He was, however, found guilty of a felony and received
probation. The guilty finding was final, and regardless
of the penalty, provided sufficient reason for viewing
his testimony with suspicion. See Annot., 14 A.L.R.
3rd 1272 (1967). Second, he argues that the conduct
involved did not amount to moral turpitude, and thus
cannot be used to impeach him under United States
v. Griffin, 387 F2d 445 (6th Cir. 1969). However, in this
Circuit, any felony, whether or not it involves moral
turpitude, may be used to impeach. Burg v. United
States, 406 F2d 235 (9th Cir. 1969). Third, Alexander
alleges that the Oregon abortion law, although repealed,
is unconstitutional, thus preventing the use of an invalid
conviction for impeachment purposes. Nevertheless,

A4

Alexander violated the law as it then was; and this fact
was used to impeach his credibility. Burgett v. Texas,
389 U.S. 109 (1967), where the Supreme Court held
that a conviction obtained in violation of the defend-
ant’s right to counsel could not be used to impeach him,

is not comparable.

4. The FBI agents who arrested White and Alex-
ander asked the Portland police to impound Alexander's
car. Alexander refused to consent to a search of the car,
and the agents obtained a search warrant. After obtain-
ing the keys from Alexander, the FBI searched the car,
finding on the floor of the back seat immediately behind
the driver’s seat a box containing twelve bottles of pills.
The bottles lacked price tags or other sales identifica-
tion, but bore labels warning that a prescription was
required. No doctor’s prescription labels were on the
bottles. The bottles and the pills were seized. When
analyzed, the pills were identified as drugs the posses-
sion of which without a valid prescription violated 21
U.S.C. $8331 (q) (3) (B) and 360a (c) (2).

Alexander contends that the seizure of the pills
should have been suppressed as beyond the scope of the
search warrant. We assume that the pills were not en-
compassed by the warrant. Nevertheless, the FBI had
a valid warrant to search the car. In the course of ex-
ecuting the valid warrant, the agent saw the contraband
pills in plain view. He was not constitutionally com-
manded to shut his eyes and to forego seizure of the
contraband. Cf. Coolidge v. New Hampshire, 403 US.
443, 464-73 (1971).

A5

5. The indictment against Alexander did not allege,
nor did the Government offer any proof that he did not
have a prescription for the drugs. He now asserts that
this omission resulted in a failure to prove one of the
elements of the offense. However, the valid physician’s
prescription exception to §360a(c) (2) is an affirmative
defense, which must be pleaded and proved by the de-
fendant. Tritt v. United States, 421 F2d 928 (10th Cir.
1970); United States v. Rowlette, 397 F2d 475, 479
(7th Cir. 1968). Cf. also, United States v. Safeway
Stores, Inc., 252 F2d 99, 101 (9th Cir. 1958); United
States v. Young, 422 F2d 302, 306, n. 11 (8th Cir. 1970).

6. Finally, Alexander asserts that the evidence ad-
duced was insufficient to prove that he had possession
of the drugs. Viewing the evidence in the light most
favorable to the jury verdict, Glasser v. United States,
315 U.S. 60, 80, (1942), there was sufficient evidence
that Alexander had control and dominion over the car
in which the drugs were found. He owned it. He had
driven it the day of the arrest, and he had the keys. This
is not a case like Dalgado v. United States, 327 F2d 641
(9th Cir. 1964), in which marijuana was found in a
drawer of a night stand in the defendant’s bedroom. In
Delgado, it was nothing more than speculation whether
the man or the woman or both had possession of the
marijuana. Here there is only uncorroborated hearsay
that White was in the car with Alexander on the day
of the arrest. The evidence was sufficient to establish
that the automobile was under Alexander’s exclusive

A6

control and dominion. Hernandez v. United States, 370
F2d 171, 172 (9th Cir. 1966).

Affirmed.

A7

JUDGMENT OF THE COURT
OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Appellee, )
) No. 71-2489

‘Vv.
JAMIE DEAN ALEXANDER, )
Appellant. )
APPEAL from the United States District Court
for the District of Oregon.

THIS CAUSE came on to be heard on the Tran-
script of the Record from the United States District
Court for the District of Oregon and was duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court, that the
judgment of the said District Court in this Cause be,
and hereby is affirmed. ;

Filed and entered July 5, 1972

A8

ORDER OF COURT OF APPEALS DENYING REHEARING |

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ) ;
Appellee, ) G
v. ) No. 71-2488 *
KENNETH EUGENE WHITE, ) ,
Appellant. )
)
)
)
)
)

UNITED STATES OF AMERICA, |

Appellee, ;

v. No. 71-2489"

JAMIE DEAN ALEXANDER, q
Appellant.

ORDER

Before: HUFSTEDLER and CHOY, Circuit Judges
and SCHNACKE, District Judge*

The panel as constituted in the above case has voted
to deny the petition for rehearing.
The petition for rehearing is denied.

HERBERT J. C. CHoy, :
United States Circuit Judge

*The Honorable Robert H. Schnacke, United States District Judge for the
Northern District of California, sitting by designation. :

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1387%3A1. Public record. Not legal advice.