# Petition for Writ of Certiorari — Charles V. Costanza v. United States of America 421 U.S. 987 (1975) (No. 74-991) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0732%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 421 U.S. 987 ## Text 5 he 3 LIBRARY SUPREME COURT, In the Supreme Court of the United States OCTOBER TERM, 1974 Ne 4991 * CHARLES V. COSTANZA, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DALE QUILLEN 308 Cavalier Building 95 White Bridge Road Nashville, Tennessee 37205 Attorney for Petitioner E. L. MEnpDEenwALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3080 QE a re TOD EO ee Meng SPP NS Pe ened wa ae eT he NRT OE CONSTITUTIONAL PROVISIONS AND STATUTES RELIED UPON 1. 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 af- firmation, and particularly describing the place to be searched, and the persons or things to be seized.” 2. Constitution of the United States, Amendment V: “No person shall . . . be deprived of life, liberty, or property, without due process of law; ...” 3. Constitution of the United States, Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him;...” 4. Constitution of the United States, Amendment XIV: . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 5. 18 U.S.C. §4208. Fixing eligibility for parole at time of sentencing.— “(b) If the court desires more detailed information as a basis for determining the sentence to be imposed, API RAIS NAD INTs id 5 the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment pre- scribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the dis- position of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After re- ceiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.” 6. 21 U.S.C. §841. Prohibited acts A—Penalties “(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; ...” REASONS FOR GRANTING THE WRIT OF CERTIORARI Petitioner respectfully contends the Writ should be granted because the right of confrontation guaranteed by the Constitution is an essential and fundamental aspect of a defendant’s right to a fair and impartial trial. While this right of confrontation may be limited in certain instances by the trial judge, when it is completely See UR e SPER Rte nome PCA Ns 262 ine bas PONE AEE NS OLEAN ISL NE AB al Ohl BIEN nt sheik Bint ee 6 denied, as in the instant case, it is both repugnant to our system of due process and is violative of the Constitu- tion. Petitioner further respectfully contends the Writ should be granted in order to clarify the continually recur- ring questions surrounding the permissible scope and in- tensity of a search incident to an arrest. The Courts of Appeal and District Courts have inter- preted Chimel v. California in a great variety of ways, thus giving rise to inconsistent results often on essentially identical factual situations. The questions raised in these cases will continue to be a problem until this Court issues further clarification of its holding in Chimel v. California. STATEMENT OF THE CASE Petitioner, Charles V. Costanza, was indicted in a one- count indictment for violation of Section 841(a) (1) of Title 21 U.S.C. in that he allegedly knowingly and intentionally possessed with intent to distribute a quantity of cocaine, a Schedule II substance. A Motion to Suppress was filed and a hearing held. On November 16, 1973, by written order, the District J udge upheld both the arrest and search. (App. A-4) Petitioner subsequently renewed his motion to sup- press upon grounds that the alleged informant was known to him, that the agents had reason to know that the infor- mant had been untruthful in the past, that there were unlawful interceptions of telephonic communications in- volved. An additional Motion to Suppress testimony of Agents Klick and Yarn was filed February 1, 1974 citing alleged 7 misrepresentations made by government agents to the Court. The order of November 26, 1973 was vacated, and further hearing was held by the Court February 8, 1974 and the Motions were denied by order February 11, 1974. The case was tried before a jury beginning March 19, 1974 and ending March 26, 1974 with the petitioner being found guilty. On April 4, 1974 petitioner was sen- tenced to 15 years and a mandatory parole term of three years. Commitment was made under 18 U.S.C. §4908(b), the Court desiring more detailed information as a basis for determining sentence to be finally imposed. Petitioner filed a proper Notice of Appeal and the case was heard by the United States Court of Appeals for the Sixth Circuit. Relief was denied by order of the Sixth Circuit on December 11, 1974. (App. A-1) The petitioner is now properly before this Court. For the purpose of the statement of facts and argument, the peti- tioner will be referred to as he was in the Court below, as “Appellant”. STATEMENT OF THE FACTS On July 23, 1973, Agent Joe Grills, of the Baltimore office of the Drug Enforcement Administration, received a telephone call from an informant. The informant told him that he had been in New York and had seen a sample of cocaine in the possession of the defendant Costanza and that Costanza had tried to sell a kilo of cocaine to him and another individual for Thirty-Seven Thousand Dollars ($37,000). He stated that they had told Costanza that the price was too high and that Costanza had placed the cocaine in his suitcase, these events having occurred at the Carriage House Hotel in New York. The informant advised the agent that he thought the defendant had gone TEEN RL LIS Oy a PIE ES Pg nr, et ETT aL co ee re 8 to Nashville and that he was of the opinion that the defen- dant expected the sale to be made eventually. Agent Grills stated that the following morning, July 24, 1973, the informant called him and told him that he had received a telephone call from the defendant from Nashville, indi- cating that he had the cocaine with him; that Costanza had said that, if they wanted to buy, he would have it at the Carriage House Hotel about 8:30 p.m. on that date. After this call on the morning of the 24th, Agent Leardis Rice, of the Baltimore office of the Drug Enforce- ment Administration, Agent Grills’ superior, made a tele- phone call to Agent Tyrone Yarn, of the Nashville office, Agent Grills being also on the telephone line. At this time, all of the information above set forth was given to Special Agent Yarn. Agent Yarn did not personally know Agent Rice, al- though he did know his name as an agent. The identity of the informant was not given to Agent Yarn, and he was not advised of the basis for the statement which had been made to him by Agent Rice that he was a reliable informant. Agent Yarn did not personally know the defendant, but was familiar with his name from the files of the agency. The informant was known to both Agents Rice and Grills as reliable, having previously furnished them with information which proved to be accurate and having never furnished any information which proved to be inaccurate. After receiving this information, Agent Yarn ascer- tained that the defendant did have a reservation on an American Airlines flight from Nashville to New York, scheduled for departure at 5:00 p.m., and also had a reser- vation at the Carriage House Hotel. Agent Yarn made some efforts to see the defendant so that he could identify wees Wile. inner aeeeermneae cence: ei 33 on this issue the only evidence was the testimony of the appellant, Winokour and Nancy Jenkins. The other wit- ness present at the meetings between Winokour and ap- pellant, Mr. Modell, was under indictment and was there- fore unwilling to testify. Appellant testified that Winokour initiated the meet- ing between the two in New York City by phoning twice and then actually coming over to appellant’s hotel room. Indeed it would be strange for Winokour to come all the way over to appellant’s room in New York from his house in Maryland if he were not initiating the transac- tion. Winokour was an acquaintance of appellant’s whom he had met in Miami and again in New York on earlier occasions. Appellant testified that he never offered to sell any cocaine, but that Winokour told him he was look- ing for some cocaine and inquired to determine if appel- lant knew any sources. Appellant denied knowing any sources, and when Winokour offered him a motorcycle if appellant would name any sources, appellant again replied in the negative. When Winokour tried a third time with a large financial reward offer, appellant finally relented and made some calls to try to locate some sources. Appellant finally succeeded in obtaining some cocaine for Winokour, and it was this cocaine that appellant had in his possession when arrested. Appellant later told Winokour by phone that he would return the cocaine to a “Michael” if Winokour did not buy it, since he was only trying to help Winokour. Furthermore, appellant testified that he had not even paid the supplier for the cocaine, since appel- lant intended to return it if Winokour subsequently re- fused to conclude the transaction. It was therefore appellant’s contention that it was the use of a trusted acquaintance who initiated a meeting and conve.sation about purchasing cocaine, and made re- 4 me | AE Rae ica ec premiegace tmsepeenis? PLE OPEN TRY THE aay OE Smee Sa Bh ar ae 34 peated pleas to appellant, which induced him to make a connection to furnish Winokour with some cocaine. Mr. Winokour admitted going to appellant’s hotel room with the intention of making a connection for his companion, Mr. Modell, but that he did not personally offer to buy any cocaine, and that Modell did. Winokour additionally claimed that appellant first called him in offering to sell cocaine to him. However, it should be noted that even if Winokour were believed, he testified that he personally gave Modell $5,000 with which to buy cocaine, and accom- panied him to appellant’s room in New York to act as an “intermediate” to get appellant to sell cocaine to Modell. Winokour therefore admits he provided the monetary needs and a buyer to induce appellant to sell cocaine to another. Thus the issue of whether Winokour personally induced appellant to sell him cocaine, or whether he got Modell to do the inducing, is immaterial, since a case of entrapment can be made out either way. Winokour further testified that appellant had the co- gaine in plain view on a desk in his room in New York, ready to sell. This was directly refuted not only by appel- lant, but also by Nancy Jenkins, who was present. She testified that there were no packages of white powder on a table in appellant’s hotel room, in accord with appel- lant’s testimony and rebutting Winokour’s story that ap- pellant had cocaine in plain view ready to sell. She did not, however, overhear the conversation between appellant and Winokour regarding the drug transaction, and could not testify as to that. Additionally, Winokour claimed that appellant informed him that appellant had a kilo of cocaine ready to sell in his room, yet Winokour admitted that appellant had to make some phone calls after their conversation during which appellant was haggling over a price. The inconsistencies in Winokour’s testimony sup- ee ee PPI SR 35 port the need for a special cautionary instruction with regard to the credibility of his statements. Winokour admitted that he was being compensated by the Government for his efforts in securing informaticn about appellant. He was thus a paid Government informer for the Government, and fits the category of persons which the Sixth Circuit says warrants a special cautionary in- struction. In addition, Winokour is an admitted user of narcotics, and has been arrested and convicted previously for a violation of the marijuana tax act as a reduced charge after testifying for the Government in a case which resulted in an acquittal. He also furnished the Government with information on other occasions. He had also been convicted of burglary and shoplifting. These last two fac- tors increase the necessity for a cautionary instruction in this situation. As to the issue of whether Winokour implanted the criminal design in appellant’s mind, it has already been indicated that appellant testified that he was approached by Winokour, and that he was asked more than one time if he would make a connection to get Winokour the co- caine before he succumbed. Appellant had never been in trouble with the law on any drug related charges before, and in fact had no previous convictions. He testified that he had never before sold any drugs to anyone. Appellant adequately established a lack of criminal attitude prior to his arrest. The only government witnesses who testified to the contrary were Patricia Sperenzella, who pleaded guilty to reduced charges prior to testifying in this case, and her “roommate” but unmarried companion, Stephen Sperenzella, who was led to believe he would get a re- duced sentence to a drug distribution charge if he testified in this case. Thus a special cautionary instruction was See ee ee 36 necessary with respect to their testimony. This is further necessitated by the admission by Patricia that she had already committed perjury once in this case, and that Stephen admitted first that he also had given contradictory statements to agents and second that anything “truthful” he said in Court now would not be used again him. The net effect is that these three persons, Winokour with respect to the entrapment itself and the Sperenzellas with respect to the appellant’s character, were the only persons offering evidence contrary to the entrapment de- fense established by appellant, and all three had adequate motive to lie. A cautionary jury instruction was abso- lutely essential then to preserve a semblance of a fair and just trial. To counter this, appellant called several witnesses to testify as to his good character. They included Richard Shwartz, president of Jonathan Logan, Inc. and Nile Year- wood, retired president of Capitol City Bank in Nashville who had known appellant for 14 years. The second serious error in the court’s jury instruc- tion was the prejudicial instruction regarding motive or bias on the part of witnesses. The trial court singled out defense witnesses Nancy Jenkins and Charles Kramer as deserving a special cautionary instruction as a result of their being named as co-defendants with appellant in another trial. The trial court properly instructed the jury that they could not consider these indictments as proof of their guilt, nor can they be used to impeach these two witnesses. However, the court did state that these indictments can be considered for the purpose of deter- mining the motive or bias of these two as witnesses in this case. Although requested to do so, the trial court refused to administer a similar cautionary instruction with respect Fe Pee Tr ae ae NO ee Te nS a eS FOG CE Re — 3 37 to other witnesses who were called by the Government and were similarly indicted or had a special motive or propensity to lie. Appellant sought a cautionary instruc- tion for perjurers in instruction request #2, since Govern- ment witness Patricia Sperenzella admitted having lied under oath. The trial court completely refused to instruct on this matter. Appellant in special request #3 sought a cautionary warning regarding the impeachment of wit- nesses because of prior inconsistent actions, or convictions, or a general bad reputation. This request referred to Patricia and Stephen Sperenzella, both of whom were con- victed prior to testifying for drug law violations. As al- ready indicated, Patricia had pled guilty to a reduced charge prior to testifying in this case for the Government while Stephen pleaded guilty in hopes of getting a reduced sentence for testifying in this case after having given con- tradictory statements to agents. A third Government witness, Mr. Winokour, also had previous convictions to his discredit and had charges dropped in exchange for testifying in this case. The trial court refused to give these specific instruc- tions, and only gave a short general charge without men- tioning names that the jury could consider prior convic- tions relevant if it wanted to. The court failed to charge that these convictions and reduced charges could be a source of motivation for the testimony of these Govern- ment witnesses, whereas the court had so instructed after specifically referring to the two defense witnesses. The discriminatory nature of the charge gave the Gov- ernment a significant advantage in its prosecution. This factor alone would have been sufficient to deprive appel- lant of a fair trial, since the jury received a distorted and severely prejudicial instruction on the law. “€ at Sar PEL BEAL AS EE PGE LIS i OR PEE AEE EBE ONO OR at ae Re EE ELLE OE O ETY SIO ET NSE ROO nts 1A 9s ASANTE NEIMAN Meta «tei OA at haa Rea Mia Bre Bid nels terete oe U stee 38 The third error in the substance of the instruction to the jury at trial was the failure of the court to instruct the jury that with respect to the defense of entrapment, that Bruce Winokour was an agent of the Government. As previously stated, Mr. Winokour by his own admission was working with the Government officers in the investiga- tion of this case, and was compensated for his efforts in this direction. The Government cannot make use of an informer, even though he remains unpaid, without that informer becoming an agent of the Government for that purpose. Sherman v. United States, 356 U.S. 369, 375 (1957). There an informer can be a sufficient link with the Government to create an illegal entrapment situation if that informer improperly induced the defendant into committing the illegal act. Id. The trial court’s instruction regarding the defense of entrapment referred only to Government officers or agents without explaining just what constitutes a Government agent. Appellant’s special instruction request +6 specifi- cally referred to Winokour as a Government informer, and would have instructed the jury that he, as an agent of the Government, could trigger an entrapment defense if he improperly induced appellant to commit the crime charged. The result of the jury charge was to leave the jury ignorant as to who qualified as a Government agent, and uninstructed on how to determine if Winokour was one. The effect was to deprive appellant of his right to put his defense of entrapment adequately to the jury, and thus deprive him of a fair trial. Any one of these three errors in the substance of the jury instructions alone could be sufficient to create a situation where the appellant was deprived of his right to a fair hearing. This circuit has emphatically stated ea eee ee — ‘ OANA ESA OITA a Bie 8 Sa . ae. 39 that a cautionary instruction is absolutely essential where a paid informer’s testimony is used to prosecute a person, especially where as here the informer’s testimony is com- pletely uncorroborated, he has had several charges against him reduced by the Government prior to trial, and he is a previous felon and admitted narcotics user. This situation combined with the discriminatory charge by the trial judge casting suspicion on defense witnesses but not at prosecution witnesses, and the confusing charge regard- ing Government agents, created an extremely prejudicial statement of the law cast in favor of the Government. There was no way a well intentioned lay jury could over- come this discriminatory instruction of the law by the trial judge. Appellant was effectively denied a fair trial and the only proper remedy is for a new trial to be granted. The trial court erred further in refusing to deliver a jury instruction with respect to the effect of testimony by witnesses as to the good character of the appellant. Appellant in his special request no. 4 sought to have the jury instructed that testimony of appellant’s good character should be considered along with other evidence in the case. Character testimony is a vital part of the relevant .proof used to establish guilt or innocence in a criminal trial. The Supreme Court has recognized the importance of character evidence for a long time. “.. . the decided weight of authority now is that good character, when considered with the other evi- dence in the case, may generate a reasonable doubt. The circumstances may be such that an established . reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although without it, the other evidence would be convincing.” Edgington v. United States, 164 U.S. 361, 366 (1896) XE LORS MOSER SIE LS RAEN TOE MS Be ARONA I 40 This circuit has also had occasion to comment on the relevance of good character evidence. Gariepy v. United States, 220 F.2d 252, 261 (6th Cir. 1955), cert. den. 350 US. 825, interpreted the effect of Edgington as requiring a court instruction on the use of character evidence not only when the weight of the evidence is evenly balanced between guilt and innocence, but requiring an instruction in every case. See also, Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956), cert. den. 352 U.S. 1025, reh. den. 353 U.S. 93. A trial judge has a duty of instructing a jury on all points of law relevant to the issues developed in the trial. If he fails to do so, or instructs improperly, the only way the error can be rectified is to grant a new trial if the effect was to prejudice the convicted appellant. Edgington v. United States, 164 U.S. 361 (1896) In this case, the character of appellant was a vital issue. Since appellant relied on a defense of entrapment, it was essential that he preserve his good reputation in defending against the prosecutor’s attempt to show appel- lant’s predisposition to commit the crime charged. Appel- lant called the President of Jonathan Logan, Inc. and the retired President of Capitol City Bank, among others, to support his claim of good character. It was essential to appellant’s defense that he be permitted to submit this evidence before the jury and that the jury be instructed as to the weight of such testimony and its purpose. The failure of the trial judge to instruct on the use of character evidence constituted prejudicial error. This omission, when considered as part of the totality of the circumstances created by other omissions and discrimina- tory statements which were part of the jury instruction, deprived appellant of his right to a fair and proper hearing. The only proper remedy is to grant appellant a new trial. i en ee ms ver POG LEARY IIS, — “SREP ee : oe beens ates 41 VI. Whether It Is Improper for Impeachment Pur- poses, for the Prosecution to Ask Several Defense Wit- nesses If They Were Indicted Along with a Defendant in a Totally Independent and Unrelated Proceeding Where No Convictions Have Resulted. The trial court created reversible error in permitting the Government to pursue the existence of indictments for several defense witnesses and appellant for the purpose of impeachment. The introduction of this evidence so prejudiced appellant in the eyes of the jury that he was denied any trace of fairness in his hearing. Justice could only be restored by granting appellant a new trial. The Government improperly inquired in cross-exami- nation whether Nancy Jenkins, Charles Kramer, defense witnesses, and appellant had been indicted in another dis- trict. Appellant objected on each occasion but was over- ruled by the trial court. The insinuations referred to mere indictments in unrelated facts situations, for which trial had not yet been held. This pursuance of the ex- istence of the indictments themselves, and not the truth of the matter contained therein was improper. No convic- tions have arisen from these indictments, so they are im- proper for impeachment purposes. The only purpose the Government could have in asking these questions was to cast doubt on the credibility of these witnesses and the appellant, and they certainly did succeed. The basic rule established by this court, as stated in United States v. Fisher, 377 F.2d 285, 286 (6th Cir. 1967), is that: “[t]he introduction in a criminal case of testimony concerning unrelated criminal activities of a defendant is so likely to have a prejudicial effect on the jury that it is generally held to be inadmissible, ” . vail STDIN DA 8 GO Bs RI RULE RO MO SOVVTE Dy VLE INE) PE PAT ee” sey . “s 42 CONCLUSION For the foregoing reasons, it is respectfully submitted that the Petition for Writ of Certiorari should be granted. Respectfully submitted, DALE QUILLEN CERTIFICATE OF SERVICE I hereby certify that I did this 5th day of February, 1975 mail a copy of the foregoing Petition for Writ of Certiorari to the Solicitor General of the United States, Department of Justice, Washington, D.C. 20530. DALE QUILLEN RIE LORIE SLD LE IL DARE RIES FEE LOLET IG AO ILO BIA EPL EN I LN AMO EER GALORE LO ALR POP NOES LT tl Aaraeeecene SMEG TO SE RL Oe A-1 APPENDIX No. 74-1620 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, Vv. CHARLES VICTOR COSTANZA, Defendant-Appellant. ORDER (Filed December 11, 1974) Before: PHILLIPS, Chief Judge, MILLER, Circuit Judge, and DeMASCIO,* District Judge. The appellant was convicted on a one-count indictment for violation of 841(a)(1) of Title 21 U.S.C. in that he allegedly knowingly, and intentionally possessed with in- tent to distribute, a quantity of cocaine, a controlled sub- stance. On appeal, the appellant contends that the district court erred (1) in overruling motions to suppress testimony allegedly obtained as a result of an unlawful arrest and an unlawful search and seizure; (2) in conducting a sup- *The Honorable Robert E. DeMascio, United States District Judge for the Eastern District of Michigan, sitting by designation. as Si la a ie as a - — A-2 pression hearing by calling the informant as the court’s own witness and denying the appellant, as weil as the government, the right to cross-examine the witness; (3) in denying certain special requests for instructions to the jury; (4) in allowing the prosecution to ask several de- fense witnesses if they were indicted with appellant in a case in New York; and finaily, in continuously interrupt- ing the trial and making comments and gestures which were prejudicial to the appellant and caused him to be denied a fair trial. Narcotics agents had prior information that the appel- lant had engaged in dealing in narcotics and they received a tip from an informant that he would arrive at the Nash- ville airport at a given time on a certain date. The agents proceeded to the airport and found that the information given to them by the informant was confirmed by their own observations. They proceeded to arrest the appellant and to seize and search his luggage which was nearby. The search disclosed in the luggage a pair of balance scales, a large quantity of cocaine, and a box of plastic baggies. A search of the appellant’s person also disclosed an amber bottle containing cocaine. We have carefully considered all of the errors assigned for reversal of the judgments of conviction and we find them to be without merit. The agents, on the basis of the informant’s tip and their own observations at the air- port, had probable cause to arrest the appellant and to search the luggage which was located in close proximity of his person, and then to effect a seizure of the incrim- inating contents. See Draper v. United States, 358 U.S. 307 (1959); Chimel v. California, 395 U.S. 752 (1959); and United States v. Burch, 471 F.2d 1314 (6th Cir. 1973). While the right of cross-examination of witnesses is scrupulously protected by the courts, it is subject to limita- ——— _ A-3 tions within the sound discretion of the trial judge. In the present case, the trial judge made the informant his own witness in order to make inquiry only with respect to whether or not wiretaps furnished any of the probable cause information upon which the agents relied in arresting the defendant. The question raised by the motion to sup- press the evidence had been inquired into at a prior hear- ing; and at the trial of the case itself on its merits, the appellant’s attorney was given free rein to cross-examine the informant even though he had made him his own witness. We think that the district judge acted reasonably and within the permissible bounds of his discretion in thus limiting the right of cross-examination at one of the suppression hearings. Errors are assigned because of the alleged conduct of the trial judge in interrupting the trial to pose ques- tions to various witnesses and in making certain comments. From our exarnination of the record, we find that the trial judge committed no reversible error in his conduct of the trial and that, in any event, any alleged error, in view of the overwhelming evidence against the appei- lant, was not prejudicial “beyond a reasonable doubt.” See Chapman v. California, 386 U.S. 18 (1967), and Fed. Rule Crim. Proc. 52(a). All other errors assigned for reversal have been carefully weighed and considered by the Court and have been found to be lacking in merit. ENTERED BY ORDER OF THE COURT. /s/ John P. Hehman Clerk ELE ODE OIE TO vad OU A A-4 ORDER (Filed November 26, 1973) The indictment in this case charges the defendant with the possession with intent to distribute a quantity of cocaine, a violation of 21 U.S.C. § 841(a)(1). The case is before the court on the defendant’s motion to suppress all testimony pertaining to a quantity of cocaine seized from defendant’s person and from a suitcase seized after his arrest on July 25, 1973. The motion was subsequently orally amended (the oral amendment being later reduced to writing) to ask the return to defendant of all non- contraband property seized from defendant on the day of his arrest. Another phase of the supplemental motion is discussed hereinafter. The ground for the motion is the allegation thai the arrest of the defendant was unlawful and that the subse- quent search of his person, personal effects and luggage was likewise unlawful, the arrest, search and seizure being warrantless. A preliminary hearing was had before the Honorable L. Clure Morton, Judge of this District Court, on July 30, 1973, an indictment was returned August 23, 1973, the defendant pleaded not guilty at arraignment September 18, 1973, filed his motion to suppress within the time allowed, and an evidentiary hearing was had on the motion November 16, 1973. From the two hearings the following facts appear. On July 23, 1973, Agent Joe Grills, of the Baltimore office of the Drug Enforcement Administration, received a telephone call from an informant. The informant told him that he had been in New York and had seen a sample of cocaine in the possession of the defendant Costanza A-5 and that Costanza had tried to sell a kilo of cocaine to him and another individual for Thirty-seven Thousand Dollars ($37,000). He stated that they had told Costanza that the price was too high and that Costanza had placed the cocaine in his suitcase, these events having occurred at the Carriage House Hotel in New York. The informant advised the agent that he thought the defendant had gone to Nashville and that he was of the opinion that the de- fendant expected the sale to be made eventually. Agent Grills stated that the following morning, July 24, 1973, the informant called him and told him that he had received a telephone call from the defendant from Nashville, indicat- ing that he had the cocaine with him; that Costanza had said that, if they wanted to buy, he would have it at the Carriage House Hotel about 8:30 p.m. on that date. After this call on the morning of the 24th, Agent Leardis Rice, of the Baltimore office of the Drug Enforce- ment Administration, Agent Grills’ superior, made a tele- phone call to Agent Tyrone Yarn, of the Nashville office, Agent Grills being also on the telephone line. At this time, all of the information above set forth was given to Special Agent Yarn. Agent Yarn did not personally know Agent Rice, al- though he did know his name as an agent. The identity of the informant was not given to Agent Yarn, and he was not advised of the basis for the statement which had been made to him by Agent Rice that he was a reliable informant. Agent Yarn did not personally know the defendant, but was familiar with his name from the files of the agency. The informant was known to both Agents Rice and Grills as reliable, having previously furnished them with information which proved to be accurate and having never furnished any information which proved to be inaccurate. A-6 After receiving this information, Agent Yarn ascer- tained that the defendant did have a reservation on an American Airlines flight from Nashville to New York, scheduled for departure at 5:00 p.m., and also had a reservation at the Carriage House Hotel. Agent Yarn made some efforts to see the defendant so that he could identify him, going to his place of employment, but was unable to see him on that day. He arranged, however, with ticket sellers of American at the airport, who knew the defendant, to point him out if he arrived that afternoon; however, the defendant did not so arrive. Agent Yarn reported to Agent Rice that the defendant had not appeared and was informed that Agent Rice would check the matter out with the informant. At approxi- mately 2:30 p.m. on the 25th, Agent Yarn received a tele- phone call from Agent Rice informing him that the infor- mant had advised that the defendant had been delayed one day by some family matter but would make the trip on the afternoon of the 25th so that he would be at the Carriage House Hotel in New York by 8:30 p.m. Before this call, however, Agent Yarn had been successful in his efforts to identify him so that he could recognize him. After receipt of the new information, Agent Yarn ascer- tained that the defendant had a reservation, once more, on the same American flight. Agent Yarn then conferred with his superior, Agent Klick, who had not been in Nashville the preceding day, and they went to the office of the United States Attorney to see about obtaining 4 warrant. They were advised by an Assistant United States Attorney that they did not need a warrant and that they would have probable cause to arrest without a warrant if the defendant appeared. Agent Yarn testified that he did not believe they had time to obtain a warrant. Pe PI Pe A BON a7 : — A-7 In any event, the defendant arrived at the airport in a car at about 4:30 p.m., removed a suitcase from it, and walked over to the express check-in outside the front door of the airport, placed his suitcase on the pavement for checking by the Skycap, and, at this point, was ar- rested by Agent Klick, acting on signal from Agent Yarn that the man with the suitcase was the defendant. Agent Klick immediately picked up the suitcase, and then, with the defendant in custody, they proceeded to a room in the airport building where the search was made. The search of the defendant’s person disclosed an am- ber bottle containing a white powder which gave a positive reaction, when field tested, for cocaine. The suitcase was locked but was unlocked by defendant, apparently under orders from the agents, and search therein revealed larger amounts of white powder, alleged to be cocaine, a total of slightly more than three pounds being seized. Two questions are presented by these facts: (1) was the warrantless arrest lawful, and (2) if lawful, was the subsequent search of the suitcase also lawful? From the facts heretofore summarized, the court holds that the information in the possession of Agents Yarn and Klick, partly corroborated by their previous investiga- tion and further corroborated by the defendant’s alighting from his car with a suitcase and preceding to the American Airlines check-in station, gave them, at that time, probable cause to believe that the defendant “had committed or was committing” an offense and that, therefore, his arrest was lawful. Beck v. Ohio, 379 U.S. 89 (1964); United States v. Burch, 471 F.2d 1314 (6th Cir. 1973). See, also, United States v. Romero, 249 F.2d 371. 374 (2d Cir. 1957). The subsequent warrantless search of the defendant’s locked suitcase, already in the physical possession of Agent EE ——— A-8 Klick, presents, to this court, a more serious problem. The court finds itself in agreement with the dissenting opinion of Judge Ely in United States v. Mehciz, 437 F.2d 145, 150-151 (9th Cir. 1971), wherein he pointed out that such searches are not truly analogous to that upheld in Chambers v. Maroney, 399 U.S. 42 (1970) and do not con- form to the criteria set forth in Chimel v. California, 395 U.S. 752 (1969). However, this court is bound by the opinion of the Court of Appeals for this Circuit in Burch, supra, holding, without discussion, that a subsequent search of luggage following a lawful arrest was valid and there- fore admissible. The argument that the search was in some manner ' invalidated by removing the defendant and the suitcase to a room at the airport before conducting it is without merit. United States ex rel. Muhammad v. Mancusi, 432 F.2d 1046 (2d Cir. 1970). Accordingly, the motion to suppress evidence of the items seized, either from the person of the defendant or from his luggage, is DENIED. In the supplemental motion of defendant, adverted to supra, the court was asked to order the United States Attorney for this District and the United States Attorneys for the District of Maryland and for the Eastern District of New York, in which districts the defendant apparently faces other charges, to furnish him with information as to any evidence discovered, directly or indirectly, as a result of the seizure of certain papers and effects from the defendant at the time of his arrest. The decision heretofore made herein renders this aspect of the motion moot, even if this court had the power to act as requested. IT IS SO ORDERED. I te tk RO el Ne hie Rie Oe ot Rat Midis ta pat oe A-9 SUPREME COURT OF THE UNITED STATES No. A-565 CHARLES V. COSTANZA, Petitioner v. UNITED STATES ORDER EXTENDING TIME TO FILE PETITION FOR WRIT OF CERTIORARI Upon CONSIDERATION of the application of counsel for petitioner (s), Ir Is Orperep that the time for filing a petition for writ of certiorari in the above-entitled cause be, and the same is hereby, extended to and including February 8, 1975. /s/ Potter Stewart Associate Justice of the Su- preme Court of the United States Dated this 6th day of January, 1975. ORDER (Filed February 11, 1974) A further evidentiary hearing was had in this case on Friday, February 8, 1974, the court having previously vacated its order heretofore entered denying the motion to suppress. The court, having now considered the evi- dence vacated its order heretofore entered denying the evidence adduced at both of the hearings, is of the opinion that the arrest and search of July 25, 1973, were not illegal. It is, therefore, ORDERED that the motion to suppress evidence be, and it is hereby, DENIED. poe La a AI Pret ti hh we eis hve eb om --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0732%3A1. Public record. Not legal advice.