Opposition Brief — Lafayette Airport Commission v. Roy

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SUPREME COURT. U. ‘fo. 73-361 NOW 14 193

MICHAEL ROBAX, af. CLE

4u the Supreme Gonert of the Muited States

OCTOBER TERM, 1973

AUGUSTE JOSEPH RICORD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RosBert H. Bork,

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

JEROME M. FEIT,

JUDITH A. METZNER,

Attorneys,

Department of Justice,

Washington, D. C. 20530.

INDEX

Page

Opinion below __.__... Joslieecicumnselcananitecnadane 1

Jurisdiction 1

Questions presented -..... ae 2

aah ialeieaiens 2

IE cut cecuinndainadlenssncreniecanscncveapomenibadesinen 5

Conclusion —...... ae, 14

CITATIONS :

Cases: :

Almeida-Sanchez v. United States, No. 71- 4

6278, decided June 21, 1973... 9,10 |

Bass v. United States, 326 F.2d 884, cer- E

tiorari denied, 377 U.S. 905... 12 &

Brown v. United States, 411 U.S. 223. 8

Carroll v. United States, 267 U.S. 132 11 §

Chambers v. Maroney, 399 U.S. 42... 10,11 |

Costello v. United States, 350 U.S. 359... 7 |

Draper v. United States, 358 U.S. 307. . 10 |

Fiocconi v. Attorney General, 462 F.2d :

475, certiorari denied, 409 U.S. 1059. i

Frisbie v. Collins, 342 U.S. 519 __.

i

Ker vy. Illinois, 119 U.S. 436 - reece

Lawn v. United States, 355 US. 339

United States v. Blue, 384 U.S. 251...

United States v. Calabro, 449 F.2d 885,

certiorari denied, 404 U.S. 1047 | 12

United States v. Estepa, 471 F.2d 1132 7,8

United States v. Febre, 425 F.2d 107, cer-

tiorari denied, 400 U.S. 849 eres 12

6

_ 6

Jones v. United States, 362 U.S. 257 _. 8

6

7

7

OTL Pee IEEE AT ROUL

FLEE REI Ie

rs alle aida

Cases—Continued Page

United States v. Garcia, 452 F.2d 419 10

United States v. Glaziou, 402 F.2d 8, cer-

tiorari denied, 393 U.S. 1121 10

United States v. Rodriquez-Gonzalez, 378

CEE soemecanenetone 10

Walker v. United States, 404 F.2d 900... 10

Statutes:

21 U.S.C. (1964 ed.) 173 _........... 2,5,6

21 U.S.C. (1964 ed.) 174 _...... _ 2,5, 6, 11-12

PERE BOOM A: ones ov nome IAN

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In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-361

AUGUSTE JOSEPH RICORD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals rendered no opinion.

JURISDICTION

The judgment of the court of appeals was entered

Be a ee a MR RIT

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on June 6, 1973 (Pet. App. la-2a). A petition for —

rehearing was denied on June 28, 1973 (Pet. App. —

3a). Mr. Justice Marshall extended the time for fil-

ing a petition for a writ of certiorari to and includ-

(1)

2

ing August 27, 1973, and on that date the petition

was filed. The jurisdiction of this Court is invoked

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

QUESTIONS PRESENTED

1. Whether petitioner was properly extradited to

the United States from Paraguay.

2. Whether the grand jury improperly considered

hearsay evidence.

3. Whether the district court correctly denied pe-

titioner’s motion to suppress evidence.

4. Whether the evidence proved petitioner’s guilty

knowledge.

5. Whether the conduct of the district judge de-

prived petitioner of a fair trial.

STATEMENT

Following a jury trial in the United States Dis-

| trict Court for the Southern District of New York,

| petitioner was convicted of conspiracy to commit nar-

| cotics offenses, in violation of former 21 U.S.C. 173

and 174. He was sentenced to twenty years’ impris-

onment and fined $20,000. The court of appeals af-

firmed from the bench without opinion (Pet. App.

la-2a).

1. On September 18, 1970, United States Customs

agents in Miami were furnished a copy of an anony-

mous letter directed to the FBI, describing in detail

certain small aircraft said to be carrying large quan-

tities of narcotics into the United States (Tr. 55-

CASE 4 QO Oe ON RLS OS AOE EE it POL ER SASL SY AL OBE fad 00 RACES

59). On October 18, 1970, one of these airplanes

arrived at Miami International Airport from King-

ston, Jamaica (MS 23-24, 33). Upon its arrival at

Miami, the craft and its occupants were placed under

surveillance. The two pilots left the plane, cleared

Customs inspections, and went by taxi to Miami

(MS 34-35, 44-51, 110-114).

On the following day, October 19, 1970, the pilots

(Bianchi and Balestra) returned to the plane and flew

to a small local airport at North Perry, fifteen miles ©

from Miami. The flight took forty minutes, because |

Bianchi made evasive maneuvers in an unsuccessful

attempt to evade the surveillance officers’ aircraft

(MS 1380-134). Bianchi and Balestra left the air-

plane at North Perry and drove to Miami, following

a circuitous route. The plane remained under sur-

veillance (MS 68-69, 115-118). That evening, Cus-

toms agents entered the plane and discovered two

suitcases hidden behind a fuel tank. A plastic bag

containing white powder was removed from one of

the suitcases, and tests disclosed the presence of

heroin (MS 71-74). On October 20, 1970, the agents

re-entered the aircraft, removing the two suitcases

and another. The three valises contained a total of

94 pounds, or 42 kilograms, of heroin (MS 84-85;

Tr. 407-425).

2. Bianchi was arrested on October 20 as he at-

tempted to board a commercial airliner to return to

POE TRIO OO eT EE ae EE

PEP SNe

1“Tr.” refers to the transcript of trial, “MS” to the tran-

script of the hearing on the motion to suppress, and “Doc.”

to the various numbered documents comprising the certified

record on file with the Clerk of this Court.

een hp pegeeers LSP AT EPR ORTEING SIAM

4

Paraguay. He agreed to cooperate with the agents

and implicated several other co-conspirators (Tr. 257-

258, 772, 783-784). Bianchi revealed that he had

met with co-conspirators Varela and Muravnik in

June 1970 and arranged to fly 60 kilograms of heroin

to the United States. They had obtained the narcotics

from petitioner in Paraguay, at a motel petitioner

owned there. Petitioner showed them to the cabin

where the heroin was kept and personally assisted

them in removing the packages. Bianchi flew the

heroin to Miami, arriving on June 24, 1970 (Tr.

217-228).

In July 1970, Varela, Muravnik, and co-conspira-

tors Becker and Gahou, pursuant to orders from

petitioner, had traveled to Uruguay to receive deliv-

ery of a Citroen automobile arriving by ship from

France. They drove the vehicle to Varela’s house in

Paraguay, where petitioner went to claim it. Inside

the Citroen were concealed 70 kilograms of heroin

(Tr. 537-542, 708-709).

On September 2, 1970, Bianchi flew to Miami from

South America and Panama at Varela’s request,

carrying a load of 30 kilograms of heroin (Tr. 233-

238, 543-545). The following month, fifteen kilo-

grams of heroin were transported from Miami to

New York by some of the conspirators and delivered

to Nicholas Giannatasio, pursuant to instructions

from petitioner. Giannatasio gave conspirator Gahou

$107,000 in cash. Becker took $100,000 of this money

to Paraguay, where Varela delivered it to petitioner

(Tr. 555-568, 710-721).

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5 .

Several days later, in mid-October 1970, petitioner

delivered another load of heroin, totalling 42 kilo-

grams, to Varela and Bianchi at petitioner’s motel

in Paraguay (Tr. 245-254). It was while Bianchi

was attempting to deliver this shipment that the

scheme was discovered by Customs agents and Bi-

anchi was apprehended.

ARGUMENT

1. Petitioner contends that the federal govern-

ment’s actions in procuring his extradition from

Paraguay were so offensive to that nation as to de-

prive the United States courts of jurisdiction of the

instant case. We submit, however, that petitioner is

without standing to present the issue here. He con-

tested his extradition in the courts of Paraguay on

the same grounds raised below; the government of

Paraguay nevertheless ordered his surrender to the

United States for prosecution.

The record conclusively shows that from the time

of the formal extradition request, Paraguay was at

all times fully advised of this nation’s reasons for

seeking petitioner’s removal. The United States Am-

bassador averred that petitioner, who was not known

to have entered the United States, had been indicted

for conspiracy to violate 21 U.S.C. (1964 ed.) 173

and 174 in connection with a major narcotics impor-

tation enterprise. The extradition request was based

upon the procedures outlined in the treaty of extra-

dition in effect between the United States and Para-

guay, and on general principles of comity, particu-

6

larly in view of the seriousness of the international

narcotics problem and the willingness of other na-

tions to extradite for narcotics offenses despite the

absence of specific treaty provisions (Doc. 19).

No misrepresentations were made to the Paraguay-

an government, and petitioner was tried for the pre-

cise offense for which he was extradited.’ Petitioner

was treated exactly as Paraguay expected when that

nation ordered petitioner’s surrender. Petitioner has

not shown that our government’s conduct in any way

offended the government of Paraguay. Unless Para-

guay would have cause to complain, petitioner cannot

raise that country’s rights as a defense to extradi-

tion. Ker v. Illinois, 119 U.S. 436, 441; Fiocconi v.

Attorney General, 462 F.2d 475 (C.A. 2), certiorari

denied, 409 U.S. 1059. In any event, even if peti-

tioner were removed from Paraguay as the result of

an irregular or illegal extradition procedure, that is

no bar to the exercise of jurisdiction by a court

which has obtained control of petitioner’s person.

Frisbie v. Collins, 342 U.S. 519, 522; Ker v. Illinois,

supra, 119 U.S. at 440.

2. Petitioner urges that hearsay evidence was im-

properly submitted to the grand jury which indicted

him. In March 1971, petitioner was indicted on a

charge of conspiracy to violate 21 U.S.C. (1964 ed.)

173 and 174. In October 1972, following petitioner’s

extradition to the United States, a superseding in-

2 Petitioner was tried on a superseding indictment returned

after his arrival in the United States, but the later indict-

ment did not differ from the first insofar as it pertained to

petitioner.

OT Sel Dee W ~

7

dictment was returned, identical to the first insofar

as it concerned petitioner, and it was on the second

indictment that petitioner was tried. The second

grand jury heard the transcript of the first grand

jury proceeding, read by the prosecutor. The tran-

script contained the testimony of Felix Becker, a

co-conspirator. As petitioner acknowledges (Pet. 13-

14), the minutes were furnished to petitioner and

used in cross-examining ‘Becker at trial.

In contending that an indictment may not be based

entirely on hearsay, petitioner misconstrues the clear

holding of this Court in Costello v. United States,

350 U.S. 359, where it was stated (id. at 363):

An indictment returned by a legally consti-

tuted and unbiased grand jury, * * * if valid on

its face, is enough to call for trial of the charge

on the merits. The Fifth Amendment requires

nothing more.

Accordingly, “[nJeither justice nor the concept of a

fair trial” requires the Court to establish a rule per-

mitting challenges to indictments based upon the suf-

ficiency or competency of the evidence presented to

the grand jury. Id. at 364; see also Lawn v. United

States, 355 U.S. 339, 349-350. Petitioner’s rights

were protected by the full safeguards of trial. Cf.

United States v. Blue, 384 U.S. 251, 255, n. 3.

Moreover, petitioner can claim no prejudice, since

the transcript of the eyewitness’s prior testimony

was made available for his use in impeaching the

credibility of the witness at trial.°

* Petitioner’s reliance upon United States v. Estepa, 471

F.2d 1182 (C.A. 2), and other Second Circuit cases is un-

8. Petitioner contends that the district court erred

in refusing to suppress as evidence the heroin dis-

covered during the warrantless search of the airplane

belonging to co-conspirator Bianchi. However, the

search was not directed against petitioner, who was

wholly unknown to the agents at the time of the

search. Petitioner is without standing to challenge

the search and seizure, since he was not in or about

the aircraft at the time of the search, alleged no pro-

prietary interest therein, and was not charged with

an offense which includes possession of the contra-

band as a necessary element. Brown v. United States,

411 U.S. 223, 229. See Jones v. United States, 362

U.S. 257, 263-264.

Petitioner appears to rely for standing upon the

fact that the government’s bill of particulars alleged

petitioner to be the owner of the heroin (Pet. 22).

However, since illegally imported heroin is contra-

band, and wrongfully held, petitioner could have no

legitimate interest or expectation of privacy in his

ownership of the drug in the United States. Cf.

Brown v. United States, supra, 411 U.S. at 230, n. 4;

Jones v. United States, supra, 362 U.S. at 267.'

availing, since the grand jury in the instant case was fully

aware of the nature of the testimony presented to it. The

applicability of Estepa was briefed below, and the court of

appeals, in affirming petitioner’s conviction, implicitly recog-

nized that its previous holding in Estepa had no effect here.

*Neither the intrusion into the aircraft nor the search

thereof affected any right or expectation of privacy of peti-

tioner. Thus, petitioner clearly had no standing to object to

the legality of the search prior to the time that the hidden

suitcases containing the heroin came, as a result of the search,

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9

Moreover, the district court properly concluded that

the warrantless search could be upheld either as a

border search or as a search upon probable cause

(Pet. App. 23a-24a). In arguing that a search of

the aircraft at the North Perry airport could not be

sustained as a border search, petitioner relies on

Almeida-Sanchez v. United States, No. 71-6278, de-

cided June 21, 1973. That case, however, holding

only that “border searches” do not include random,

roving searches of automobiles conducted some dis-

tance from the border or its functional equivalent,

has no application to the facts here.

In the instant case, the search was not “random”

or “roving”. Customs officials had received an anony-

mous but detailed tip concerning the use of particu-

lar aircraft to import narcotics. When one of these

aircraft landed at Miami International Airport, no

immediate “border search” of the aircraft was under-

taken, but it and its occupants were placed under

surveillance. Thereafter, the craft was flown to a

small, local airport only a few miles away, following

an evasive route under aerial surveillance. The craft

was searched later that day, after the pilot had left

it and returned to Miami by automobile, again using

a devious route.

The right to conduct a full customs search, with-

out probable cause, at the time of the aircraft’s ar-

rival in Miami can scarcely be questioned. Nor

should the investigatory officers, who suspected a

into plain view. At that point, there was manifest probable

cause for the seizure.

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10

major narcotics smuggling operation, have been re-

quired to tip their hand by an immediate search,

when surveillance of the plane and its occupants for

a day or two offered the prospect of further uncov-

ering details of the suspected criminal conspiracy.

As a result of this surveillance, it was reasonably

certain that the plane and its contents were intact—

as at the time of crossing the border—when the

search did take place, so that the search was indeed

the “functional equivalent” of a border search.’

Moreover, the combined circumstances—the appear-

ance of an aircraft which was the subject of the

anonymous tip, the evasive maneuvers after takeoff

from Miami and the subsequent landing a few miles

away after 40 minutes in the air, the suspicious ac-

tions of the pilots—all gave the Customs officers

probable cause to believe that the tip was accurate

and that the plane was being used to transport con-

traband. Cf. Chambers v. Maroney, 399 U.S. 42, 46;

Draper v. United States, 358 U.S. 307, 313. Accord-

ingly, even if the search were not sustainable as a

border search not requiring probable cause, it was

entirely proper as based on probable cause. A war-

rant could not practically have been required, more-

®It has been recognized both in Almeida-Sanchez (slip op.,

pp. 6-7) and other cases that customs searches may be con-

ducted at times and places distant from the actual border

crossing. See United States v. Garcia, 452 F.2d 419, 421-422

(C.A. 5); Walker v. United States, 404 F.2d 900 (C.A. 5);

United States v. Rodriguez-Gonzalez, 378 F.2d 256 (C.A. 9).

See also United States v. Glaziou, 402 F.2d 8 (C.A. 2),

certiorari denied, 393 U.S. 1121.

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11

over, since the parked plane could have been readied

for takeoff in a few seconds (MS 60; Pet. App. 23a).

See Carroll v. United States, 267 U.S. 132, 153-156;

Chambers v. Maroney, supra, 399 U.S. at 51.

4. Petitioner contends that the government failed

to prove petitioner’s guilty knowledge in connection

with the conspiracy. In fact, however, petitioner’s

knowing participation in the crime is well supported

by the evidence.

In the instant case, as our statement of facts

shows, the evidence established that on two occasions

in 1970 petitioner led co-conspirators to a cabin of the

motel which he owned in Paraguay and assisted them

in removing a total of more than one hundred kilo-

grams of heroin from the motel for export to the

United States (Tr, 217-228, 245-254). On another

occasion, petitioner directed other co-conspirators to

pick up an automobile arriving from France, which

contained a large quantity of concealed heroin (Tr.

537-542, 708-709). He also accepted payment of

$100,000 in cash for heroin delivered in New York

(Tr. 555-568, 710-721).

That petitioner was aware of the nature of the

substance with which he dealt is manifest from the

furtive manner in which the business of the con-

spiracy was conducted and from the large sum of

money involved. Hence, even apart from the statutory

inference of former 21 U.S.C. 174,° it is clear that

* As petitioner notes (Pet. 26), the government was entitled

to avail itself of a statutory inference under 21 U.S.C. (1964

12.

the jury was entitled to believe that petitioner know-

ingly possessed heroin and that he knowingly con-

spired to introduce the drug illegally into the United

States.

5. Petitioner cites numerous incidents that in his

view constitute examples of prejudicial conduct on

the part of the trial judge. The principal contention

is that petitioner was afforded insufficient time to

prepare for trial. The record shows, however, that

petitioner’s attorney entered his appearance in the

case in September 1972, shortly after petitioner’s

extradition to the United States and nearly ninety

days before trial." Petitioner filed numerous mo-

tions, and hearings were set for October 16, 1972,

with trial to follow on October 30. Petitioner, how-

ever, requested and was granted a five-week adjourn-

ment of trial to December 4 (Doc. 22, p. 43).

It was not until late November 1972 that petitioner

sought permission to depose witnesses in Paraguay

ed.) 174, which permitted the jury to convict if it found

petitioner to have an unexplained possession of the narcotics.

Purely circumstantial evidence is sufficient to show posses-

sion. United States v. Febre, 425 F.2d 107, 110 (C.A. 2),

certiorari denied, 400 U.S. 849. Moreover, a showing of

dominion and control of the drug sufficient to amount to con-

structive possession will suffice to invoke the statutory infer-

ence. United States v. Calabro, 449 F.2d 885, 891-892 (C.A.

2), certiorari denied, 404 U.S. 1047; United States v. Febre,

supra, 425 F.2d at 111; Bass v. United States, 326 F.2d 884,

886-887 (C.A. 8), certiorari denied, 377 U.S. 905.

7 Since petitioner was incarcerated, the government was

entitled to only ninety days to prepare for trial under the

Second Circuit’s “Rules Regarding Prompt Disposition of

Criminal Cases.”

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13

and to interview government witnesses. The court

granted these requests, imposing only the condition

that these activities not delay the commencement

of the trial (Doc. 26, pp. 2-3). It is thus plain that

it was only petitioner’s tardiness, and not unreason-

able rulings of the court, which “forced” petitioner

to trial less fully prepared than he might have wished.

Moreover, as the district court noted (Tr. 1316), the

conduct of petitioner’s counsel during the trial mani-

fested careful and thorough preparation.

Petitioner also argues that the trial court failed

to safeguard against the possibility that the jury

would be influenced by newspaper publicity concern-

ing petitioner. The record fully answers this asser-

tion. During the voir dire of prospective jurors, the

court asked whether any of the venire had read or

heard anything about the case in the news media

(Tr. 30-31).*° Throughout the trial as well, the court

repeatedly cautioned the jurors against exposing

themselves to news reports concerning the case (e.g.,

Tr. 188-184, 349, 528). When petitioner’s counsel

complained during the trial that a prejudicial story

had appeared in the New York Times, the court in-

quired whether any of the jurors had read the Times

or any of several suburban newspapers (Tr. 352-353,

363-365). None said they had.

Petitioner’s other allegations of judicial misconduct

are similarly without basis in fact. The record shows

8’ The sole juror who had seen a news item concerning the

case was not challenged by petitioner peremptorily or for

cause (Tr. 54-55).

14

that the trial was conducted in an orderly atmosphere,

with no apparent hostility between the defense and

the court, and that the court at all times was careful

to ensure that petitioner received a fair and impartial

trial.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

ROBERT H. Bork,

Solicitor General.

HENRY E. PETERSEN,

Assistant Attorney General.

JEROME M. FEIT,

JUDITH A. METZNER,

Attorneys.

NOVEMBER 1973.

Wl oU. 8. GOVERNMENT PRINTING OFFICE; 1973 525933 119

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