Petition for Writ of Certiorari — Slack v. United States

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REME Court, U.S AUG 0

IN THE

SUPREME COURT OF THE UNITE

TERM, 1973

No. i3- 448

JAROLD WILLIAM SLACK,

a/k/a BILLY J. BUDSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAL R. HORTON

733 West Fourth Avenue

Anchorage, Alaska 99501

Counsel for Petitioner

Washington DC e CLB PUBLISHERS INC e@ (2)2) 89) Os

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TABLE OF CONTENTS

COT ORTOP OTTT UCT TTT TET TOR es

BASIS FOR FEDERAL JURISDICTION IN THE

COURT OF FIRSTINSTANCE ...............+.-

REASONS FOR GRANTING THE WRIT .............

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TABLE OF AUTHORITIES

Cases:

i SE co wowneeecessnsecees

Carroll v. United States, 267 U.S. 132 (1925) ..........

Henry v. United States, 361 U.S.98 (1959) .........

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United States v. Ragsdale, 470 F.2d 24 (Sth Cir.,

Nov. 10, 1972, 12 Criminal Law Reporter 2218) ......

Statutes:

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Constitutional Provisions:

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IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1973

JAROLD WILLIAM SLACK,

a/k/a BILLY J. BUDSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, JAROLD WILLIAM SLACK a/k/a

Billy J. Budson, prays that a writ of certiorari issue to

review the opinion and judgment of the United States

Court of Appeals for the Ninth Circuit rendered in these

proceedings on July 2, 1973.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit in the above entitled case is attached

hereto as Appendix A and reported at 470 F.2d 24 (1973

Sh Cir.). The District Court opinion is attached as

Appendix B.

JURISDICTION

The order or judgment of the United States Court of

Appeals for the Ninth Circuit was entered on July 2,

1973. See Appendix A. This Petition for Certiorari was

filed less than thirty (30) days from the date aforesaid.

The jurisdiction of this court is invoked under 28 U.S.C.

Sec. 1254(1).

QUESTIONS PRESENTED

Will probable cause existing in the mind of one F.B.I.

agent support an arrest by a fellow agent having no

information as to probable cause, and having no warrant.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment IV:

“The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.”

STATEMENT OF THE CASE

On June 16, 1971, the Parkway Branch of the First

National Bank of Anchorage was robbed. Two men with

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masks and guns took $9,330.00. It is undisputed that

neither of the two men was Jarold William Slack.

On June 25, 1971, several F.B.I. Agents were on duty

at the Seattle-Tacoma airport. They had arrest warrants

for the co-defendants, Richard Carl Snyder and Charles

Eugene Shaw, but not for Jarold William Slack. Agent

Murphy had secured a Xerox photograph of an individual

known to him as either a Mr. Slack or a Mr. Budson. He

immediately determined that an individual paging a “Mr.

Shaw” was in fact the man in the photograph.

Agent Murphy summoned Agent Reap to take over the

surveillance of defendant Slack. Sometime thereafter

Agent Reap performed the actual arrest without orders

from Agent Murphy and without a warrant. There is no

indication that the arresting officer, Reap, had probable

cause or was acting on orders of Murphy.

Jarold William Slack, Charles Eugene Shaw and

Richard Carl Snyder were jointly indicted on the 7th day

of July, 1971 and jointly tried in the United States

District Court for the District of Alaska. Jarold William

Slack was convicted under an Amended Indictment of

the crimes of armed robbery, conspiracy to commit

robbery and two counts of felon in possession of

firearms.

Judgment was entered on the 25th day of August,

1972, sentencing defendant Slack as follows: Imprison-

ment for twelve years and a fine of $2,500.00 for aiding

and abetting in the crime of bank robbery; five years for

conspiracy to commit bank robbery, and two years each

on two separate counts of possession of firearms by a

convicted felon. The sentences to run concurrent.

At trial, defendant Slack objected to the admissibility

of evidence seized in a search pursuant to his arrest.

Defendant Slack argued that no warrant had been issued

nor had probable cause been shown for the arrest. The

MERA To

4

trial court, holding that probable cause did exist,

admitted into evidence three handguns, two of which

were similar to those used in the robbery. The arresting

officer did not take the stand.

Defendant Slack noticed his appeal to the United

States Court of Appeals for the Ninth Circuit on the 25th

day of August, 1972. His conviction was affirmed on July

2, 1973.

BASIS FOR FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE

Jurisdiction in the Court of first instance is founded in

18 U.S.C. Sec. 2113.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW DECIDES A FEDERAL

QUESTION OF SUBSTANCE NOT IN ACCORD

WITH THE PROTECTIONS GUARANTEED BY THE

FOURTH AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES, AND NOT PREVIOUSLY

DECIDED BY THIS COURT.

It is clear that F.B.I. Agents may make arrests without

warrant for any offense against the United States

committed in their presence or for any felony cognizable

under the laws of the United States if they have

reasonable grounds to believe that the person to be

arrested has committed, or is committing such felony. 18

U.S.C. Sec. 3052. The reasonable grounds requirement of

§3052 is equivalent to the “probable cause” requirement

of the Fourth Amendment. Henry v. United States, 361

U.S. 98 (1959).

Probable cause exists where the facts and circum-

stances within the knowledge of the arresting officers, of

which they had reasonably trustworthy information,

5

were sufficient to warrant a man of reasonable caution in

believing that an offense has been, or is being, committed

and that the person arrested was or is the offender,

Carroll v. United States, 267 U.S. 132 (1925), Henry v.

United States, supra.

Defendant Slack respectfully submits that no probable

cause was demonstrated by the arresting officer for his

arrest.

Agent Murphy testified that he was on duty for the

Federal Bureau of Investigation at the Seattle-Tacoma

airport on June 25, 1971. He had warrants for Richard

Carl Snyder and Charles Shaw. Agent Murphy and Agent

Stark heard a page for Mr. Shaw to go to Gate C-9 and

learned that a Mr. Budson had made the page. Agent

Murphy had in his possession a Xerox photograph of an

individual known to him as a Mr. Slack or Mr. Budson,

and determined that the man placing the page was in fact

the man in the photograph.

Agent Murphy summoned Agent Reap to take over the

surveillance while Agent Murphy left the scene. Sometime

thereafter Agent Reap performed the actua! arrest with-

out a warrant on a charge of conspiracy to commit bank

robbery.

Agent Reap, the arresting officer, was not called by the

Government as a witness. The testimony in this case fails

to establish any indication that the arresting officer,

Agent Reap, or any of his superiors had sufficient

information upon which to base a belief that the

defendant Slack had committed a crime.

The trial court, after hearing argument by counsel for

the Government, not under oath and not subject to

cross-examination, held that probable cause did exist and

admitted plaintiff's Exhibits Seven, Eight, Eighteen, and

Thirty-Four. Objection had been properly made to the

admission of these exhibits based on the lack of probable

cause and lack of warrant.

FDA SE MALIN WHE 4 PUA IE:

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Objection was also made by the attorney for Shaw that

the evidence seized from the search of Mr. Slack

incidental to the illegal arrest revealed plane tickets and

ticket stubs which provided the F.B.I. with the informa-

tion needed to obtain a search warrant for the luggage,

and, therefore, that the luggage and the articles found

therein should be excluded as fruit of the poisonous tree

under the principles of Wong Sun.

It is the function of this court to determine whether

the facts available to Officer Reap at the moment of

arrest would “warrant a man of reasonable caution in the

belief” that an offense has been committed, Carroll v.

United States, 267 U.S. 132, 162; Beck v. Ohio, 379 U.S.

89, 98. There is no testimony available to guide the court

as Reap did not take the stand.

In Beck, the defendant had been arrested after a stop

by police officers. The officers had a picture of the

defendant and had reports that he was involved in illegal

gambling activities. Gambling receipts were found in his

sock in a search pursuant to the arrest.

The Supreme Court of the United States held that it

had the duty to examine the record for facts to support

the arrest, and quoted Ker v. California, 374 U.S. 23:

While this court does not sit as in nisi prius to

appraise contradictory factual questions, it will,

where necessary to the determination of constitu-

tional rights, make an independent examination of

the facts, the findings and the record so that it can

determine for itself whether in the decision as to the

reasonableness the fundamental—i.e., constitutional

—criteria established by this court have been

respected.

The court in Beck then reversed the conviction as it

could not find sufficient facts in the record to support

the arrest. It summarily eliminated the argument that

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good faith of the arresting officer is sufficient to support

the arrest (See also: Henry v. United States, 361 U.S. 98

at 102), and generally condemned warrantless arrests:

An arrest without a warrant bypasses the safeguards

provided by an objective, predetermination of

probable cause and substitutes instead the far less

reliable procedure of an after the event justification

for the arrest or search, too likely to be subtly

influenced by the familiar shortcomings of hindsight

judgment. (Citing Wong Sun v. United States, 371

U.S. 471).

The thrust of the government’s position with respect

to the illegal arrest seems to be that a ruling of probable

cause may properly be based upon representation of an

assistant United States Attorney. This is true, apparently

because he is an officer of the court who is at all times

under a general oath with respect to his conduct in court.

This position seems to be inconsistent with the law as

stated by the trial judge in the instant case in Jury

Instruction 55.

In that instruction the court stated:

Statements and arguments of counsel are not evi-

dence in the case unless made as an admission or

stipulation of fact.

This instruction seems to be well established in

American jurisprudence, notwithstanding the argument

of the Assistant United States Attorney to the contrary.

In addition, the United States acknowledges that the

record does not show exactly how much of the informa-

tion was in the possession of Special Agent Reap at the

time he made the arrest of defendant Slack. This alone

should be sufficient to cause this court to find that

probable cause was not properly established.

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The government, apparently conceding that the

arresting officer did not have sufficient information to

constitute probable cause, falls back on the case of

. United States v. Ragsdale, 470 F.2d 24 (Sth Cir.,

November 10, 1972, 12 Criminal Law Reporter 2218).

In Ragsdale, two patrol officers stopped a motorist for

excessive speed and erratic driving. One of the officers

removed the driver from the automobile and observed a

partially concealed weapon. This officer did not com-

municate his observation to his comrade.

With no information as to the partially concealed

weapon, the second officer conducted a search of the

automobile and found several guns. The court held that

the first officer would have been under a duty to search

the car before allowing the motorist to return to it, and

therefore the search by his comrade, even though

otherwise illegal, would be upheld.

The facts in the instant case are obviously distinguish-

able. There is no-showing that Agent Murphy was present

and constituted part of a team of which Agent Reap was

a member.

Agent Murphy testified that he paged Agent Reap in

the airport. He further testified that he informed Agent

Reap that Mr. Budson was under observation. It is

respectfully submitted that the record fails to show even

a scintilla of information possessed by Agent Reap which

would justify an arrest.

It is also significant that Agent Reap was not called to

testify at the trial. This court may well infer that the

failure of the United States to call as a witness a person

available to them justifies a presumption that any

testimony by that witness would be unfavorable. And, it

should be noted that reliance on weaker and less

satisfactory evidence when better evidence appears to be

available justifies the inference that the evidence not

on

9

produced would be unfavorable. This presumption should

certainly obtain when the witness is a Federal Bureau of

Investigation Agent and no suitable explanation is con-

tained in the record for his absence.

CONCLUSION

As evidence of the probable cause for the arrest of

defendant Slack is wholly lacking, in the transcript or the

record, the arrest and subsequent search of the defendant

were clearly illegal and all evidence arising therefrom

should have been suppressed by the trial court.

Respectfully submitted,

HAL R. HORTON

733 West Fourth Avenue

Anchorage, Alaska 99501

Counsel for Petitioner

arnt te ht

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

v. No. 72-2567

JAROLD WILLIAM SLACK, a/k/a

Billy J. Budson,

Appellant.

UNITED STATES OF AMERICA,

Appellee,

v. No. 72-2962

CHARLES EUGENE SHAW, a/k/a

Carlos Borando, a/k/a F. Wilson,

a/k/a George Harris, Jr.,

Appellant.

UNITED STATES OF AMERICA,

Appellee,

v. No. 72-2963

RICHARD CARL SNYDER, a/k/a

Richard Yancy, a/k/a Richard

Carl Ziegman, a/k/a Rick,

Appellant.

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MEMORANDUM

[July 2, 1973]

Appeal from the United States District Court

for the District of Alaska -

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2a

Before: HUFSTEDLER and CHOY, Circuit Judges, and

TAYLOR, * District Judge

Slack’s Appeal

Slack contends that the district court erred (1) in

denying his severance motion, (2) in denying his suppres-

sion motion, and (3) in admitting inculpatory statements

that he made to Officer Gray.

He argues that the district court abused its discretion

in refusing to sever his trial from that of his co-

defendants, because the evidence against Snyder and

Shaw was “overwhelming” and the evidence against him

was, by comparison, slight. Although Slack was not

physically present at the bank and none of the proceeds

of the robbery were traced to him, abundant circum-

stantial evidence linked him to his codefendants and to

the robbery. Moreover, Slack had made highly inculpa-

tory statements about his connection with the robbery.

He suffered discomfiture, not legal prejudice, from the

joint trial; his discomfort was no greater than that

inherent in conspiracy trials. Denial of his severance

motion was not error.

The search was legal if there was probable cause to

arrest him. Probable cause has to be determined as of the

time the arrest was made and not by the revelations of

hindsight. Murphy and Reap were working as a team,

although the two men were not always acting side by

side. Did the officers have enough information between

*Hon. Fred M. Taylor, Senior Judge, District of Idaho, sitting

by designation.

1 This case is unlike King v. United States (9th Cir. 1970) 426

F.2d 278, because in King the court did not take judicial notice.

The limited remand in King would serve no purpose here.

3a

them to justify the arrest? We think that they did.

Murphy had identified Slack from a photograph as a

robbery suspect. He knew that Slack was traveling as

“Budson” with Shaw and Yancy (Snyder) for whom he

had arrest warrants. Reap observed Slack with Shaw and

Yancy, heard Slack paged, and observed Slack’s nervous-

ness. Any one of these circumstances would not have

been enough to amount to probable cause, but together

they were sufficient to justify the arrest. (Cf. United

States v. Ragsdale (Sth Cir. 1972) 438 F.2d 21.) -

There was no error in admitting Slack’s incriminating

statements. He was not in custody. Ample evidence

supported the determination that his statements were

voluntary. (E.g., United States v. Tucker (9th Cir. 1970)

435 F.2d 1017; see Schneckloth v. Bustamonte (1973)

asinine U.S. ........, «eee. [Slip opinion pp. 5-8].)

Shaw’s Appeal

Shaw claims three errors: (1) improper judicial notice ~

of the federally insured status of the First National Bank ©

of Anchorage; (2) denial of his motion to suppress, and |

(3) unfair pretrial and trial identifications.

From the facts that the word “National” appears in &

the bank’s name, as every national bank is required to §

state (5 U.S.C. §22), that national banks must be =

federally insured (12 U.S.C. §1814(b)), that the court &

sitting in Anchorage could have decided that the national ©

character of the bank was more likely than not to have §

been generally known in the community, and that the |

status of the bank was “capable of immediate and &

accurate determination by resort to easily accessible

sources of indisputable accuracy,” we conclude that the

court did not err in judicially noticing the bank’s status. ©

(See United States v. Phillips (9th Cir. 1970) 427 F.2d :

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1035, 1037; ef. Byers v. United States (10th Cir. 1949)

175 F.2d 654, 656.)' Our upholding judicial notice in

this case is not an indication of general approval of

judicial notice of a bank’s status. Community knowledge

in Anchorage cannot be equated with general knowledge

in Los Angeles. The judicial notice doctrine must be

carefully scrutinized when it is used in a criminal case and

resort to the doctrine must be narrowly circumscribed.

The district court was entitled to find from the

evidence that Shaw abandoned the property that he had

left in the room. His landlady’s activities in moving his

remaining belongings and in transmitting the green slip of

paper cannot be equated with police action. The sub-

sequent warrantless search and seizure were legal. (E.g.,

Parmon v. United States (D.C. Cir. 1968) 399 F.2d 559.)

We do not think that the photographic display was

impermissibly suggestive or that the in-court identifica-

tions were tainted. Although the photographs did not

depict persons who were carbon copies of one another,

there was no gross disparity between Shaw’s features as

thus shown and those of the others. (United States v.

Faulkner (9th Cir. 1971) 447 F.2d 869; United States v.

Williams (9th Cir. 1970) 436 F.2d 1166.)

Snyder’s Appeal

Snyder’s contention that judicial notice was improp-

erly invoked has been heretofore rejected. He further

claims that the court erred (1) in denying his severance

motion, (2) in denying his motion to dismiss Count II,

(3) in admitting certain exhibits without limiting instruc-

tions, and (4) in denying his motion for acquittal.

His argument for severance closely parallels Slack’s. We

reject it for the same reasons. The evidence against

Snyder on the conspiracy charge was not minimal. He

Sa

was tightly woven into the robbery. The jury could have

believed the innocent explanations for his possession of

the tainted money and his intimate association with his

codefendants during the period in question. But it was

not obliged to do so, and it is not our task to substitute

our judgment of the weight of legitimate inferences for

that of the jury.

Under the circumstances of this case, there was no

prejudicial error in failing to give limiting instructions.

The purchase and possession of weapons were overt acts

pursuant to the conspiracy with which Snyder was

charged. The only distinctive feature was that the

weapons charges against his codefendants referred to

them as felons. We do not think that the jury had any

difficulty in sorting out the “felon in possession” charge

and vicarious possession by Snyder, a nonfelon, of the

weapons purchased and used pursuant to conspiracy.

We perceive no error in denying Snyder’s motion to

dismiss Count II. The form of the indictment may not

have displayed the utmost of technical nicety, but Count

II adequately informed him of the charges he had to

meet. No more is required.

We do not think that Snyder’s claim of government

suppression of favorable evidence has enough merit to

warrant discussion.

From our earlier comments about denial of severance,

it is plain that the evidence taken most favorably to the

government was sufficient to support the conviction.

The judgments are affirmed.

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APPENDIX B

. NO ae MINT tRov. 2-63) ate Form Ni No. 25

salt * '. at . = =]

*ntted Hintes District Court

. FOR THE WU i i 5 72

DISTRICT OF ALASKA

CCTs es 2 eae

United States of America ER? pe i i. oy

No, A-67-71 CR

v.

JANCLY WILLIAN SLACK,

a/k/a BILLY J, BUDSON

On this 25th day of August , 1972 came the attorncy for the

fovernment and the ¢-fendant appeared in person and ' by counsel Edward J, Reasor,

It Is ApguLszd that the defendant upon his plea of* not guilty, and a verdict of

guilty

his be van cunt ited of the offense of aiding and cbetting the crime of bank robbery,

curspiracy, and possession of firearms by convicted felon, in violation

f Title 18, U.S.C., Sections 371 and 2113(a) & (d), and Title 18 Appendix,

U.S.C., Section 1202(a)(1),

in Counts I, II, III, and IV

as charged? of the amended indictment,

and the court having asked the defendant whether he has anything to say why judzment should not

b> pronenecd, and no sufficient cause to the contrary being shown or appearing to tire Court,

Ir 15 Avsvancrn that the defendant is guilty as charged and convicted.

Iv Is Anguusiv that the devencant is hereby conmunitted to the custody of the Attorney General o-

his aut!.crized representative fer imprisonment for 2 period of‘ twelve (12) years on Count I,

five (9) years on Count II, two (2) years on Count III, two (2) years on

Count IV, and fined the sum of $2,500.00 on Count 1. Said seatence of

imprisonment on Counts Il, III, and IV to run concurrently, not consec-

utively, with sentence of imprisonment on Count 1,

The defendant is ordered to stand committed until the fine is paid or

he is otherwise discharged by due course of law,

WARP

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