Brief for the Respondent in Opposition — Capra v. United States

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INDEX

Page

Opinions below

Jurisdiction

Questions presented

Statement

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CITATIONS

Cases:

Alderman v. United States, 394 U.S. 165_ 16

Anderson v. United States, 417 U.S. 211 11

Brown v. United States, 411 U.S. 223. 15

Carroll v. United States, 267 U.S. 132. 17

Chambers v. Maroney, 399 U.S. 42. 17

Chapman v. California, 386 U.S. 18... 11

Lisenba v. California, 314 U.S. 219 11

Lutwak v. United States, 344 U.S. 604. 12-13

United States v. Annunziato, 293 F.2d

373, certiorari denied, 368 U.S. 919. . 11

United States v. Apollo, 476 F.2d 156. 13

United States v. Edwards, 415 U.S. 800 17

United States v. Olweiss, 138 F.2d 798,

certiorari denied, 321 U.S. 744... 11

United States v. Soriano, 497 F.2d 147. 17

United States v. Turner, 423 F.2d 481,

certiorari denied, 398 U.S. 967 ; 11

Constitution and statutes:

United States Constitution, Fourth

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18 U.S.C. 371 ____.... 3

Il

Constitution and statutes—Continued Page

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26 U.S.C. (1964 ed.) 4705(a)

26 U.S.C. (1964 ed.) 7237(b) —

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In the Supreme Court of the Uuited States

OCTOBER TERM, 1974

No. 74-659

JOHN CAPRA, ET AL., PETITIONERS

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 opinion of the court of appeals (Pet. App. A)

is reported at 501 F.2d 267. The opinions of the

district court with respect to its suppression and pre-

trial publicity rulings (Pet. Apps. B, C, and E) are

reported at 372 F.Supp. 600, 603 and 609; the dis-

trict court’s wire interception ruling (Pet. App. F)

is not reported.

(1)

Sataniyanin |

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JURISDICTION

The judgment of the court of appeals was entered

on July 26, 1974, and a petition for rehearing was

denied on September 27, 1974. By order dated Octo-

ber 18, 1974, Mr. Justice Marshall extended the time

for filing a petition for a writ of certiorari to and

including November 26, 1974, and the petition was

filed on that date. The jurisdiction of this Court is

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

QUESTIONS PRESENTED

1. Whether petitioners’ convictions for substan-

tive narcotics violations should be reversed because

of the introduction of evidence derived from wire

interceptions, part of which were held by the court

of appeals to be unlawful, where the interceptions

took place after the commission of the substantive

offenses and the evidence derived from the intercep-

tions related only to the conspiracy charge, which was

reversed by the «ourt of appeals.

2. Whether the court properly instructed the jury

regarding the consideration of hearsay declarations

of co-conspirators.

3. Whether petitioners have standing to challenge

the search and seizure of a suitcase containing 51/4

kilograms of heroin and 1 kilogram of cocaine that

took place after they had sold the narcotics and re-

linquished control over them.

4, Whether publicity occurring at the time of peti-

tioners’ arrest warranted dismissal of the charges

against them.

— et eer. a Ss ee ae

SIDE RELA. se

3

5. Whether the warrantless search of an auto-

mobile was justified on the facts of this case.

6. Whether petitioners were denied a fair trial by

four instances of allegedly improper questioning by

the prosecution.

STATEMENT

After a five-week jury trial in the United States

District Court for the Southern District of New

York, petitioners and co-defendant Robert Jermain

were convicted of selling 3 kilograms of heroin, in

violation of 26 U.S.C. (1964 ed.) 4705(a) and 7237

(b), and of distributing, and possessing with the in-

tent to distribute, 514 kilograms of heroin and 1 kilo-

gram of cocaine, in violation of 21 U.S.C. 812, 841

(a)(1), and 841(b)(1)(A). Petitioners and co-

defendants Jermain, George Harris, and Alan Mor-

ris were also convicted of conspiracy to violate fed-

eral narcotics laws, in violation of 18 U.S.C. 371.

Petitioners were each sentenced to concurrent 15

year terms of imprisonment and to six years’ special

parole on the conspiracy and various substantive

counts. Petitioners Capra and Guarino were sen-

tenced in addition to a consecutive term of three

years’ imprisonment and six years’ special parole,

and to fines totalling $45,000 (Tr. Vol. 9, 75-76).

After noting that some of the evidence admitted at

trial to prove petitioners’ participation in the con-

spiracy should have been suppressed, the court of

appeals affirmed petitioners’ convictions on the sub-

4

stantive counts and reversed their conspiracy con-

victions."

The evidence, which is no longer in dispute, is

detailed in the opinion of the court of appeals. It

shows that petitioners formed an enterprise centered

in New York for the massive marketing of heroin

and cocaine, in which their functions were loosely

but generally divided: Guarino secured drugs from

importers, Capra acted as distributor, and Della-

Cava made deliveries. Later Joaquin Ramos, an ad-

mitted co-conspirator but not a defendant in this

case, and co-defendant Jermain transferred drugs

from DellaCava in New York to co-defendants Alan

Morris and George Harris for sale in the midwest.

After Ramos’s release from federal prison in 1969,

he frequented the Havermeyer Social Club in the

Bronx, at petitioners’ invitation. The club was one

of petitioners’ fronts for the enterprise. Guarino

offered to reestablish Ramos in the narcotics busi-

ness, and during the period when Ramos was con-

sidering the proposition, he helped count and hide

money which DellaCava brought into the club (Tr.

148-152). By the fall of 1969, Ramos and a partner

were distributing a kilo of heroin each month.

1 The basis of the reversal of the conspiracy conviction (Pet.

App. A23) was that some of the evidence admitted at trial

to prove the conspiracy had been obtained by court-authorized

wire interceptions, part of which the court of appeals held to

be unlawful. The sentences of imprisonment that petitioners

had received on the conspiracy charges were to run concur-

rently with those received on the substantive charges. The

net result of the reversal was thus that Capra’s and Guarino’s

fines were each reduced by $25,000.

5

Ramos’s usual routine was to place orders with Gua-

rino or Capra at the club and leave a car there,

with a full tank of gasoline, so that DellaCava could

use it to get the narcotics, and, after driving around

New York City to insure that he was not being

watched, return, leaving the narcotics in the trunk

of the car for distribution by Ramos (Tr. 152-160).

Jermain, whose major customer was Harris, a

Detroit drug dealer, entered into a partnership with

Ramos in March 1970.. On instructions from Capra,

they developed a pattern of dealing in which Harris

paid in advance of delivery, and Ramos or Jermain

delivered the drugs to him or one of his agents (Tr.

185-188, 252-254, 267). In 1970, Ramos and Jer-

main established an additional outlet with another

midwestern dealer, Alan Morris. In August 1970,

Ramos delivered two kilograms of heroin to Morris

in New York City. Morris had prepaid Ramos $48,-

000 for the heroin (Tr. 286-291).’

In early November 1970, Harris asked Ramos and

Jermain to get him a kilogram of heroin. After

Ramos discussed the matter with DellaCava, Jermain

agreed to take care of the delivery of the heroin

(Tr. 259-262). The following evening, Jermain gave

two packages containing heroin to Harris and his

associate, Earl Simms, who testified as a witness for

the government (Tr. 1336-1339, 1566-1567). Ramos

subsequently paid $24,000 to Capra and Guarino for

2 This sale was the subject of Count 2 of the indictment.

6

the heroin Jermain had delivered to Harris (Tr.

264).

By 1971, Morris was placing orders cvery three or

four months for approximately $150,000 worth of

heroin (Tr. 278-286, 299-302). As their business

expanded, Ramos and Jermain not only demanded

payment in advance from Morris. but also refused

to meet with him in New York City (Tr. 355-359,

370-376). Instead, Ramos or Jermain checked the

packages of narcotics in public terminals and then

forwarded the claim checks to Morris, who picked up

the drugs without ever meeting the distributors face-

to-face (Tr. 433-434, 443-444). One such sale—of

five and one-half kilograms of heroin and one kilo-

gram of cocaine, consummated in October 1971 at

the Toledo, Ohio train station—led to the arrest of

Ramos.‘

The growth of the enterprise, as outlined by Ramos

and corroborating witnesses (Tr. 1330-1334, 1336-

1339, 1566-1567), was further described by narcotics

agents who had overheard conversations relating to

the conspiracy while engaged in electronic surveil-

lance that had initially been directed at one Joseph

DellaValle, the owner of the tavern out of which

DellaCava operated. This surveillance commenced

nearly two months after the completion of the last

transaction charged in the substantive counts.

3’ This sale was the subject of Count 3 of the indictment.

* This sale was the subject of Ceun‘s 4 and 5 of the indict-

‘ment.

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ARGUMENT

1. The court; of appeals held that “none of the

evidence resulting from the illegal wiretaps was used

to prove the guilt uf [petitioners] on the substantive

charges” (Pet. App. A23-A24), the last of which was

committed about two months before the interceptions

commenced. Accordingly, while it suppressed certain

of this wire interception evidence and reversed the

conspiracy conviction to which the evidence related,

the court below affirmed the substantive convictions.

This ruling was correct and petitioners’ contentions

relating to the wire interception evidence have no

substance.

a. Petitioners assert that their connection with

witness Ramos was first discovered in October 1972

as a result of a chain of events traceable to electronic

surveillance undertaken ten months earlier, which

the court of appeals held to have been unlawful.

Therefore, they submit that all of Ramos’s testimony

at trial should be suppressed as “fruit of the poison-

ous tree.”

We rely on the finding of the court below, which

is supported by the testimony at trial, that “[t]here

is no indication in the record nor was there a claim

by any of the defendants that the police identified

Ramos or asked him to testify as a result of evidence

uncovered by the wiretaps” (Pet. App. A24).°

5 Petitioners argue that the court of appeals erred in con-

cluding that they did not claim that the identification of

Ramos resulted from an illegal interception, pointing to

counsel’s statement at trial that “My chief concern * * * is

Nm Ee

8

Undisputed testimony about police visual surveil-

lance of witness Ramos, which took place before any

of the telephone monitoring, shows that on November

5, 1970, Ramos was followed from a restaurant to

the Havermeyer Social Club, which petitioner Della-

Cava entered shortly thereafter. Approximately half

an hour later, Ramos and DellaCava were observed

leaving the club together (Tr. 1330-1334). On De-

cember 2, 1970, Ramos made two trips to the Haver-

meyer Social Club, where he spent most of the eve-

ning. During his stay there, at approximately 9:00

p.m., co-defendant Jermain entered the club; at ap-

proximately 10:00 p.m., petitioner DellaCava drove

up in a green Ford and entered the club (Tr. 1041,

1111-1112). On December 7, 1970, co-defendant Jer-

main was observed meeting Ramos and driving him

to the Havermeyer Social Club. After a brief period

of time in the ciub, both men went to a restaurant

that the witness Ramos was discovered as a result of some

illegality or some illegality may have been exercised with

regard to witness Ramos.” (Pet. 89). But this bare sug-

gestion that there might be “some illegality” which led to

the discovery of Ramos is far from a specific claim that the

interception led to his identification. Even now, petitioners

base their claim simply on the assertion that, since Ramos

agreed to cooperate with this investigation one month after

references to his part in the conspiracy were overheard,

there is a “reasonable inference” that the monitoring led to

the identification and agreement to testify (Pet. 85).

As we note, infra, however, the record clearly establishes

police awareness of Ramos’s connection with petitioners be-

fore the interception and provides no basis for the speculation

that his agreement to cooperate was motivated by the inter-

ception, rather than by the conclusion of related state pro-

ceedings against him, or, indeed, by any other motivation.

ON: = op ENR A OCS PRE AS IES Ip SE

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where they parked directly across the street from

the green Ford that DellaCava had been driving on

December 2, 1970 (Tr. 1041, 1113). Approximately

forty-five minutes later, Jermain left the restaurant

and picked up co-defendant Morris. A few minutes

later, DellaCava left the restaurant with five people

(Tr. 1041-1042). There was also testimony that,

during the first quarter of 1971, Capra was observed

on approximately six occasions driving a car that

was being watched in connection with the investiga-

tion of Ramos and Jermain (Tr. 2964, 2992-2996).

From this testimony it is clear that the police had

identified petitioners and were aware of their con-

nection with Ramos before the monitoring of Della-

Valle started.° Therefore, petitioners’ unsupported

assertion that Ramos’s testimony is a fruit of the

suppressed wire interceptions is erroneous.’

b. Petitioners assert that the wire interception

evidence, part of which was suppressed by the court

below (Pet. App. A8-A16), was “the real corrobora-

tive evidence of Ramos’ testimony concerning peti-

tioners’ roles as suppliers” (Pet. 81). Therefore,

they contend that its introduction at trial requires

a new trial or re-sentencing.

° Pex tioners were not known to be associates of DellaValle.

This expicins what petitioners call the government’s conces-

sion (Pet. 17 n. 10) that the identities of petitioners were

not known to the police when the first wire interception order

was issued on December 8, 1971.

7In this factual setting, there is no reason to reach the

question whether the testimony of a live witness acting

through his individual volition and choice should ever be

considered tainted as the fruit of an improper interception.

POO EDM se 2 me PANE MRD Ton

Sepia

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The court below correctly concluded, however, that

the record shows that Ramos’s testimony was inde-

pendently corroborated (Pet. App. A24). It was cor-

roborated in detail by police visual and photographic

surveillance evidence (e.g., G. Exs. 22, 24) by air-

line, hotel and telephone toll records (¢.g., G Exs.

26, 39, 42, 44, 46, 47, 76, 77, and 134A), and by

the testimony of co-conspirators Earl Simms and

Joseph Conforti.

Although the prosecution’s theory was that peti-

tioners, as suppliers, were careful to hire others to

take the risks associated with the actual handling

of the narcotics, first hand evidence, other than the

monitored telephone conversations, reveals their per-

sonal involvement. Ramos testified that DellaCava’s

job was to retrieve the narcotics from their hiding

place for each sale (Tr. 158, 741), and that Capra

and Guarino handled the finances, setting the prices

to be paid and dividing the profits (Tr. 149, 151).

DellaCava’s direct contact with the heroin was cor-

roborated by the traces of heroin and the machine

for sealing plastic bags found in his car. Capra’s

involvement in the financial end of the business was

corroborated by the itemized bill for the Toledo, Ohio

sale of five and one-half kilos of heroin and one kilo

of cocaine (G. Ex. 21), which other evidence showed

was in his handwriting (G. Ex. 135). Ramos’s tes-

timony about Capra’s personal involvement was also

corroborated by Conforti’s testimony that he heard

Capra tell co-conspirator Caruso to give Conforti

materials to dilute or “cut” heroin (Tr. 2420-2424).

11

Conforti also testified that he heard Guarino tell co-

conspirator Sperling that “we need the money to get

this deal going,” just before Sperling sent Conforti

to pick up $30,000 (Tr. 2428). He further testified

that on another occasion when he was summoned to

Sperling’s house with cutting materials, Conforti

heard Guarino tell Sperling, “Things are looking up,

we’re going to have a good year” and that a “con-

nection” had been made (Tr. 2445).*

Thus, the wire interception evidence only corrobo-

rated a wealth of other evidence establishing peti-

tioners’ guilt on the substantive counts, and any

error in admitting this evidence was harmless be-

yond a reasonable doubt. Chapman v. California, 386

U.S. 18.

*Eveu though petitioners’ conspiracy convictions were re-

versed, co-conspirator declarations were nevertheless admis-

sible and properly admitted on the substantive counts. It is

well settled that, regardless of whether a conspiracy is charged

in the indictment, acts and statements of co-conspirators made

in furtherance of the conspiracy are admissible at trial

against other co-conspirators. Anderson V. United States, 417

U.S. 211, 218; United States v. Annunziato, 293 F.2d 373, 378

(C.A. 2), certiorari denied, 368 U.S. 919; United States v.

Olweiss, 138 F.2d 798, 800 (C.A. 2), certiorari denied, 321

U.S. 744. Here, the evidence showed that petitioners did not

personally handle the delivery of narcotics to customers but

acted through intermediaries. Therefore, evidence of their

participation in the substantive counts was necessarily cir-

cumstantial, and evidence of prior and subsequent transac-

tions by petitioners which showed the continuing nature of

their joint venture was particularly appropriate to prove

knowledge, intent, and modus operandi. Lisenb~ v. Cali-

fornia, 314 U.S. 219, 227; United States v. Turner, 423 F.2d

481, 483-484 (C.A. 7), certiorari denied, 398 U.S. 967.

<4 ier; PEDIC IDL & OTe Rr ropa

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2. Petitioners contend that the trial court improp-

erly instructed the jury regarding its consideration

of hearsay evidence (Pet. 143-150).

In its charge, the district court instructed the jury

that each defendant’s participation in the conspiracy

must be established by evidence as to his own words,

actions, or conduct and that the jury had to find that

a defendant was a member of the conspiracy by a

preponderance of non-hearsay evidence before it could

consider hearsay evidence against him in determining

his guilt beyond a reasonable doubt’ (Tr. 3941-

3942).°

Petitioners, who do not contend that the non-hear-

say evidence was insufficient to permit the introduc-

tion of acts and statements of co-conspirators, argue

that the judge erred in not giving these instructions

at the time the hearsay evidence was first admitted

and throughout the trial, rather than just prior to

the jury deliberations. In support of this contention,

petitioners point to language in Lutwak v. United

States, 344 U.S. 604, 618-619, concerning a declara-

tion made after the conspiracy had ended:

® Petitioners claim that this instruction permitted the jury

to apply a preponderance test to determine guilt or innocence

on the conspiracy charge (Pet. 147). The court of appeals’

reversal of the conspiracy convictions cured any such error

in the instruction. In any event, we note that on at least

three occasions the jury was instructed that membership in

the conspiracy must be established beyond a reasonable doubt

in order for them to convict on the conspiracy count (Tr. 3938,

3941-3942, 4081). Moreover, on five other occasions the jury

was instructed on the reasonable doubt standard with respect

to the charges in general and the particular elements of the

various counts (Tr. 3903, 3905, 3917, 3923, 3932).

eed

Bee Pern

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In the trial of a criminal case for conspiracy,

it is inevitable that there shall be * * * evidence

as t declarations that is admissible as against

all of the alleged conspirators; there are also

other declarations admissible only as to the de-

clarant and those present who by their silence

or other conduct assent to the truth of the de-

claration. These declarations must be carefully

and clearly limited by the court at the time of

their admission and the jury instructed as to

such declarations and the limitations put upon

them * * * [i.e.] to whom they have been re-

stricted and in some instances for what specific

purpose.

The Court in Lutwak was concerned that declara-

tions made after the conspiracy had ended, “admis-

sible only as to the declarant and those present who —

* * * assent to the truth of the declaration,” be ac-

companied by an instruction at the time of their

admission into evidence appropriately limiting the

jury’s consideration of that evidence. Contrary to

petitioners’ suggestion, the Court did not hold that

declarations and acts like those in the instant case,

made in furtherance of the conspiracy and admissible

against all of the conspirators whose participation in

the conspiracy was established, need be accompanied

by such an instruction. In these circumstances, such

an instruction would be both confusing and incor-

rect.”°

Similarly, United States v. Apollo, 476 F.2d 156 (C.A.

5), cited by petitioners (Pet. 144), is inapposite. There, the

extrajudicial statements of alleged co-conspirators linking

,

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3. Petitioners contend that the narcotics seized

from a suitcase Ramos checked at the baggage room

of the Toledo, Ohio railroad station should have

been suppressed as the result of an illegal search

and seizure. The court of appeals and the district

court properly rejected this claim. in opinions upon

which we rely (Pet. App. A5-A8, E1-E10).

The evidence at the suppression hearing and the

trial showed that after Morris paid Ramos $150,000

for a narcotics delivery," Ramos checked a suitcase

containing the narcotics at the baggage room and

mailed the claim check to Morris. The baggage at-

tendants’ suspicions were aroused by Ramos’s man-

ner” and by the weight and rustling sound of the

suitcase. When the suitcase was not promptly re-

trieved, the attendants consulted with a railroad

police agent, Blevins, who was employed by the rail-

road to protect railroad property. They told him they

feared the bag might contain a bomb, and the three

men decided to open the suitcase to make sure it was

the defendant with a conspiracy were made at a time when

the conspiracy and the defendant’s connection with it were

not firmly established. The court held that it was error to

tell the jury that “connection with conspiracy must of neces-

sity be established by some hearsay in this kind of case”, and

that instead limiting instructions should have been given

(id. at 163).

™ This was petitioners’ share of the proceeds. Jermain and

Ramos were to split the balance due (Pet. App. A7-A8).

2? He was “nervous and tense” and “aggressively” rejected

the agent’s suggestion that he use a coin locker, which would

have been more usual, since he intended to leave the suitcase

for more than a few hours (Pet. App. E3-E4).

ein PISS

15

safe (Pet. App. E4). When the baggage attendants

and Blevins were unable to open the suitcase, Blev-

ins called a city police detective, Ryan, reported his

concern, and asked for assistance in opening the suit-

case. Ryan and two other policemen came to the

station and picked the locks on the suitease. One of

the baggage agents then opened it and discovered the

narcotics. Morris was arrested with an accomplice

in the station after the accomplice claimed the bag

and delivered it to Morris (Pet. App. E5).

After consideration of this evidence, the cour'ts

below concluded that petitioners here had no stand-

ing to challenge the search and seizure (Pet. App.

E2-E3, A7-A8). They had been fully paid for the

narcotics and had completed their part in the plan

for its delivery, and thus they no longer had a suffi-

cient possessory interest in the suitcase or its con-

tents upon which to base their claim. See Brown v.

United States, 411 U.S. 223, 228-230. In any event,

both courts noted that the search was essentially a

private one by the railroad employees in the proper

exercise of their responsibility to protect the rail-

road’s property, not a search for evidence of a crime

by law enforcement officials (Pet. App. E6-E7, A25).

There is no need for further review of the con-

current holdings of both courts below, which turn on

the particular facts of this case, and thus present

no issues of continuing importance.

4. Petitioners contend that this Court should dis-

miss all charges against petitioners because of pub-

licity at the time of their arrest. We rely for re-

16

sponse to this contention on the opinion of the court

below. As the court stated (Pet. App. A19):

The trial court correctly held that there was

no showing of prejudice in this case. Absent

proof of bias on the part of individual members

of a jury, reversal, because of extensive pub-

licity adverse to the accused, is required where,

after reading or hearing it, a resulting conclu-

sion of guilt in the minds of the general public

would be practically certain, Sheppard v. Mazx-

well, 384 U.S. 333 (1966); Rideau v. Louisiana,

373 U.S. 723 (1963), or where improper pres-

sure on a jury was clear from the record itself,

Estes v. Texas, 381 U.S. 532 (1965), neither

of which the trial court found here.

5. Petitioners contend that the warrantless search

of petitioner DellaCava’s car when he was arrested

following his indictment—and the subsequent vac-

uuming of a bag containing almost $14,000 in cash

found in the car—were improper, and thus that the

evidence obtained thereby should have been sup-

pressed.”

The court of appeals concluded that the agents

had probable cause to believe that the car was being

used to transport narcotics, based on their prior

knowledge of DellaCava’s activities and of the charges

in the indictment under which he was arrested (Pet.

*3 Only petitioner DellaCava has standing to raise this issue.

Alderman v. United States, 394 U.S. 165. The car search

revealed a machine for sealing plastic bags, as well as the bag

full of money. The vacuuming disclosed traces of heroin

(Pet. App. A21).

zo a _

17

App. A21). A warrantless search of an automobile,

either immediate or delayed, based on probable cause

to believe that it contains contraband or evidence of

a crime does not violate the Fourth Amendment,

Carroll v. United States, 267 U.S. 132; Chambers v.

Maroney, 399 U.S. 42.* The search of the bag found

in the car was similarly proper. United States v.

Soriano, 497 F.2d 147 (C.A. 5). Although petition-

ers challenge the court’s finding that, under the

particular circumstances here, the officers had prob-

able cause to search the car, there is no need for fur-

ther review of this narrow and essentially factual

issue. In any event, in light of the other overwhelm-

ing evidence of guilt, any error was clearly harmless.

6. Petitioners contend (Pet. 150-153) that they

were denied a fair trial by four instances of allegedly

improper questioning by the prosecutor. On their

face, the questions, which appear at Pet. 150-151,

can hardly be considered inflammatory. Moreover,

the court sustained objections to three of the ques-

tions, and, as petitioners note (Pet. 151), the judge

instructed the jury that “a question is not evidence.”

The fourth instance of allegedly improper question-

ing related to the sale of heroin to co-defendant Mor-

ris in brown paper bags (Tr. 987). After Ramos

%* Since the officers had probable cause to search the car,

it is not necessary to conclude further, as did the courts

below, that the search was justified in anticipation of the

forfeiture of the car.

The fact that part of that search occurred some time later

is not significant. Chambers v. Maroney, supra; United States

v. Edwards, 415 U.S. 800, 806-809.

EPIL LE IONE IR Bs BO, rye persia i a ee

18

testified about the price paid for the bags, he was

asked whether he ever had any conversation with

DellaCava, Guarino, or Capra about what the bags

contained. Ramos answered that conversations re-

garding the bags related to heroin. After objection

by defense counsel, the time frame for these discus-

sions was limited to that charged in the indictment

(Tr. 988-989). As noted above, such testimony was

properly introduced as petitioners’ admissions that

they knew Ramos was selling heroin to Morris.

CONCLUSION

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

Victor D. STONE,

MARC PHILIP RICHMAN,

Attorneys.

Marcu 1975.

% ©. S. coveenment peumtine orrice, 1975 S711S9 6125