Opposition Brief — Pickette v. United States

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CITATIONS

Cases:

Chambers v. Maroney, 399 U.S. 42. coccccccccccccscsseeees 8

Chapman v. California, 386 U.S. 18 vocccccccccccceeeees 8

Glasser v. United States, 315 U.S. 60 ....cccccccccccccee. 10

Horner v. United States, 143 U.S. 207 ........00..000.... 4

Hyde v. United States, 225 U.S. 347 ooo 4-5

Ingram v. United States, 360 U.S. 672 .............002... 9

McDonald v. United States, 335 U.S. 451. ............. 7

Schneckloth v. Bustamonte, 412 U.S. 218 .............. 7

United States v. Cianchetti, 315 F.2d 584 ............. 1]

United States v. Cirillo, 499 F.2d 872.

certiorari denied, 419 U.S. 1056 ........cccccccccccceeeee 11

United States v. Crockett, 514 F.2d 64 .......... 8-9, 10

United States v. Feola, 420 U.S. 671 cocccccccccccccccccese 8

United States v. Holiday, 457 F.2d 912,

certiorari denied, 409 U.S. 913 ....ccccccccccccccceeeee 6-7

United States v. Overshon, 494 F.2d 894,

certiorari denied, 419 U.S. 853 oo.ccccccccccccccccccceeeee 5

United States v. San Martin, 505 F.2d 918 ............ 9

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United States vy. Varelli, 407 F.2d 735,

appeal after remand, 452 F.2d 193, certiorari

denied sub nom. Saletko v. United States,

I aa I oie snc ccinobsncseiaviee weilacchausonsacekeiconians 10

United States vy. Watson, No. 74-538, decided

I TI, PE ioisacndoicvces cetera oaoes 7

Warden v. Hayden, 387 U.S. 294 voc ccccceeeeeees 7

Statutes:

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In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1074

TOM PICKETTE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The per curiam opinion of the court. of appeals

(Pet. App. 53-54) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on December |, 1975. On December 30, 1975, the Chief

Justice extended the time for filing a petition for a writ

of certiorari to January 30, 1976, and the petition was

filed on January 29, 1976. The jurisdiction of this

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

QUESTIONS PRESENTED

|. Whether petitioner's removal to the Southern

District of West Virginia was proper.

2. Whether the trial court properly admitted in evidence

a weapon seized at the time of petitioner's arrest.

(1)

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Spares ser orem:

3. Whether evidence of prior similar criminal acts

was admissible.

4. Whether the evidence was sufficient to sustain

petitioner's conviction.

STATEMENT

Following a jury trial in the United States District

Court tor the Southern District of West Virginia, petitioner

Was convicted on one count of conspiring to distribute

Marijuana, in violation of 21 U.S.C. 846, and on two

counts of causing the interstate shipment of marijuana,

in violation of 18 U.S.C. 1952(a)(3) and 2. He was

sentenced to concurrent terms of five years’ imprison-

ment on each count, to be followed by a special parole

term of two years on the conspiracy count. The court

of appeals affirmed (Pet. App. 53-54),

Ihe evidence showed that petitioner participated in a

Well-organized scheme to transport large quantities of

Mexican marijuana from Tucson, Arizona, to Virginia

and West Virginia. where it was distributed to others.

Petitioner acted as the “Arizona connection.” Others

involved in the scheme were Calvin Thomas. who co-

ordinated each shipment with petitioner: Patrick Johnson.

who hired the drivers to transport the marijuana from

Arizona to Virginia and West Virginia and directed its

distribution there (Tr. 81): and Jessie Garrett) and

Terry Fink. who distributed the marijuana in West

Virginia. !

On September 26. 1974. petitioner, Johnson. Thomas and others

Were indicted in the United States District Court tor the Southern

District of West Virginia. Following a removal hearing on October

Hl. 1974. in the United States District Court for the District. of

Arivona, petitioner was removed to West Virginia. Johnson sub-

sequently pleaded guilty and testified for the government: Thomas

remained a fugitive throughout these proceedings. Garrett and Fink

Were named as unindicted co-conspirators and testified for the

government at petitioner's trial.

mi eer LIke eee eo

3

In July of 1973. Calvin Thomas met with petitioner

in Tucson, Arizona, in order to establish a source of

Mexican marijuana (Tr. 68. 75-76). Once Thomas learned

that petitioner could supply the desired quantities.

he informed Patrick Johnson (Tr. 69. 75-76). Johnson

in turn Met with petitioner to discuss future transactions

(Ir. 69, 78-79). Thomas remained in Arizona to co-

ordinate with petitioner the delivery of marijuana from

Mexico and to arrange for its loading into automobiles

lor delivery to Virginia and West Virginia. Approximately

eleven loads of marijuana, each Weighing about 250 to

300 pounds, were transported interstate by automobile

(Ir. 96),

Each of the drivers hired to transport the marijuana

customarily was paid $500 per trip (Tr. 344, 364, 504,

509), Petitioner frequently met with the drivers (Tr.

337, 360. 365, 467, 476. 505, S11. 585. 665-667)

and sometimes discussed the purchase of marijuana with

them (Ir. 592, 596-601, 669-674). Occasionally, the

drivers purchased marijuana for their own use directly

from petitioner (Tr. 602, 669-674). At times. petitioner

suggested to co-conspirators Johnson and Thomas (Tr.

149-150) and to one of the drivers (Tr. 341, 348) the

best routes to travel out of Arizona in order to avoid

police detection.

In West Virginia, the marijuana was distributed by

Garrett and Fink (Tr. 341-343, 661), both of whom knew

petitioner was the “Arizona connection” for the mari-

Juana (Tr. 542, 560, 571. 740-749). Fink testified about

his numerous meetings with petitioner at which the

marijuana scheme was discussed (Tr. 740-749).

ARGUMENT

I. Petitioner contends (Pet. 12-29) that his removal

to the Southern District of West Virginia was improper

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4

because he was not identified at the removal hearing

as the person named in the indictment. He also claims

that there was no venue in that district because he did

not commit any erime there.

a. At the removal hearing, Fink testified that he was an

unindicted co-conspirator in the West Virginia indictment

and that he had testified betore the grand jury there.

He further stated that he was present at six meetings

with petitioner in Tucson, Arizona, at which the co-

conspirators discussed the delivery, quantity and price of

the mariyuana (H. Tr. 7-10).2 Ato the first) of these

meetings, co-conspirator Thomas introduced Fink to peti-

tioner, deseribing Fink as a driver who would. transport

marijuana to West Virginia (H. Tr. 9).

Since the indictment charged that Tom Pickette sold

marijuana in Tucson, Arizona, to Calvin Thomas, Terry

Fink and others and that the marijuana was transported

by automobile to West Virginia and Virginia, the magistrate

justifiably found (H. Tr. 20) on the basis of the evidence

betore him, that petitioner was the Tom Pickette named

in the indictment. There was no occasion for Fink to

eXpress an opinion on that issue, because that was the

ultimate question tor the magistrate to decide (H. Tr.

10-11). See Horner vo United) States, 143° U.S. 207,

ps i

b. Contrary to petitioner’s claim (Pet. 17) that he was

not charged with committing any crime within the Southern

District of West Virginia, the indictment charged him

with conspiring to distribute marijuana in that district.

Since venue in a criminal conspiracy prosecution lies

in any district in which an overt act occurred (Hyde

“HE Tr reters to the transcript of the removal hearing held

on October 11. 1974. in the District of Arizona.

BLEED THROUGH

‘sa

\. Onited States, 225 U.S. 347, 367). the indictment

Was properly returned in the Southern District of West

Virginia, because the evidence shows such an act took

place there. namely. the delivery and distribution ot

maryuana (Tr. 82-99). See. e.g.. United States \. Over-

shon, 494 F.2d 894, 900 (C.A. 8). certiorari denied, 419

U.S. 853. 878. Moreover. since the proof under 18

U.S.C. 1952(a)(3) demonstrated that petitioner caused

the interstate) transportation of marijuana into the

Southern District. of West Virginia, venue was proper

there under 18 U.S.C. 3237(a).

2. Petitioner argues (Pet. 29-38) that his co-defendant’s

gun, Which was introduced in evidence. was seized during

an unlawful search of an apartment which they shared.

Agents of the Drug Enforcement Administration received

information from their office in Charleston, West. Vir-

vinki, that arrest Warrants were outstanding for petitioner

and co-defendant Stanley Desisto (Tr. 419, 778-779).

Pursuant to this information, they went to an apartment

in Tucson, Arizona, where petitioner and Desisto were

believed to be residing with a third person (Tr. 382-

383, 423. 779). Agent William Hare. who was dressed

in civihan clothes (Tr. 421-422). knocked on the front

door of the apartment while another agent watched the

back entrance.

When petitioner answered the door, Agent Hare, who

did not know him, asked whether Mr. Pickette (peti-

tioner) Was there (Tr. 384. 408. 780). A few moments

later co-defendant Desisto. whom = Hare recognized.'

appeared at the door and pointed a gun at the agent's

head (Tr. 382. 384. 388-389, 425). Hare immediately

‘In January of 1972. Desisto had been arrested by tederal narco-

tics agents. Agent Hare recognized him trom a photograph which

he had seen at that time (Tr. 382).

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identified himself as a tederal agent (Tr. 384. 781).

Petittuoner and Desisto thereupon pushed the door shut

and turned out the lights in the apartment (Tr. 385,

TST). At that point. the agents summoned help.

Fitteen minutes later, local police officials and a police

helicopter arrived (Tr. 782). Agent Hare velled numerous

Warnings to petitioner and Desisto that they were federal

agents and had warrants tor their arrests (Tr. 844).

When the agents received no response, they forcibly

entered the apartment. Petitioner and Desisto fled out

the back entrance and were arrested (Tr. 386, 782).

At the time of arrest, an agent advised petitioner and

Desisto of their rights (Tr. 411-412. 821-822). Both

delendants were searched and neither was armed (Tr.

386). The apartment was searched to determine whether

a third person was present and armed (Tr. 386). Neither

a third person nor the gun that Desisto had pointed at

Agent Hare was found. Desisto was then asked where the

gun Was (Tr. 386-387, 787). Desisto told the agent that

the gun was hidden in a skylight in the kitchen (Tr.

387). The agent went back into the apartment and seized

the gun from the skylight (Tr. 387-388).4

Since the agents had information that a third person

might) be residing with petitioner and Desisto, and

since the agents Knew that Desisto had been armed only

moments before the arrest. they reasonably concluded

that immediate entry was necessary to determine whether

that third person, who might be armed. was present.

See. e.g. United States v. Holiday, 457 F.2d 912

‘The agent found two guns (br. 388) The court permitted the

government to disclose to the jury that Desisto was armed when

the agents arrived at his apartment and that the gun was found

there, but at turther instructed the prosecution not to introduce

any testimony about the second gun (Pr. 439).

-— << + —

FRSA EET R oh ws

SATII PORN ANG ATIRE NE RUDRCLS | ie Ot Mh ANCA ARISES A RR Rie ee nr Teen Cs aie Me ae

(C.A. 3), certiorari denied, 409 U.S. 913. “ [T]he exi-

geneies of the situation made that course [of conduct]

imperative’ ” and reasonable for the agents’ own pro-

tection. Warden v. Hayden, 387 U.S. 294, 298-299, quoting =|

VeDonald \. United States, 335 U.S. 451, 456.

Nor did the exigencies of the situation cease once the

initial search had indicated that apparently there was

no one else in the apartment. Since neither defendant = ©

had the gun on his person, the agents knew that it had

been hidden somewhere in the apartment and that it ‘

therefore continued to present a threat to their safety.’ q

In these circumstances, it was reasonable for one of the ©

agents to ask Desisto where he had hidden the gun and

to seize it When its location was disclosed.

we

Moreover, Desisto consented to the seizure. He had

been given Miranda warnings and responded that he

understood: he also was aware that the agents had been

unable to locate the weapon. Yet in responsé to a simple

non-coercive question, he disclosed the location of the

gun. In the “totality of all the circumstances” (Schneckloth

\. Bustamonte, 412 U.S, 218, 227). his consent was volun- ©

tary, and the mere fact that he was in custody did not )

Vitiate that voluntary consent. United States v. Watson.

No. 74-538. decided January 26, 1976, slip op. at 13.

Furthermore, the gun was evidence of a crime that

had been committed only moments before. As the court '

of appeals correctly found (Pet. App. 54), the gun “had been

brandished by one of the defendants moments before

i ds

“Although a third person was not found in the apartment. the

agents Were uncertain whether petitioner and Desisto lived there

alone. Since there had been a ten to fifteen minute delay between

the time Agent Hare identified himself as a tederal agent and

their entry into the apartment. Desisto had sufficient Opportunity

to contact that third person, or even someone else.

Te — - a

fsa we 4 Sees ORRIN! 25 we SENT REA EE TY

In an attempt to prevent entry to the premises.” Not-

withstanding Desisto’s apparent lack of knowledge that

Agent Hare was a tederal agent, his act of pointing a

weapon at Hare’s head was an assault on a federal

officer. United States v. Feola, 420 U.S. 671. In these

circumstances, once Desisto disclosed the gun’s location,

it Was reasonable tor the agents to seize the gun immedi-

ately without a warrant. Cf. Chambers v. Maroney, 399

U.S. 42, $1-52.°

3. The trial court properly admitted evidence concern-

ing prior similar criminal activity, specifically, a purchase

of cocaine from petitioner (Tr. 104, 154-155). a similar

purchase by co-conspirator Fink and petitioner. from an

unnamed Mexican (Tr. 543, 748-749) and a purchase of

cocaine by one of the hired drivers from a Mexican at

petitioner's apartment (Tr. 588-589). The court carefully

instructed the jury that these similar acts were admissi-

ble only to show intent (Tr. 918, 927-929).

Petitioner concedes (Pet. 39) that evidence of similar

criminal activity is admissible “to prove some element of

the crime presently charged.” such as intent. But he con-

tends that the evidence here was inadmissible because

it Was not “plain, clear and convincing” (Pet. 41) and the

prejudicial effect of this evidence “clearly outweighed

any need for its introduction” (Pet. 42).

The admissibility of evidence of prior crimes is within

the trial court’s discretion. See. e.g., United States v.

‘In any event. even if the trial court erred in admitting the gun

and testimony about it into evidence, it was harmless error. Chapman

v. California, 386 U.S. 18. 21-24. The evidence. wholly in-

dependent of the gun, that petitioner participated in a conspiracy to

distribute marijuna and caused its interstate shipment was, as the

court of appeals correctly found (Pet. App. 54), overwhelming.

BLEED THROUGH

ARS gt INO RT Tl A APRA Oe wt RITE AS EO ak AR NT OT OI TI NR IEE ASK

9

Crockett, 514 F. 2d 64, 72 (C.A. 5). There was no abuse of

discretion here. The prior cocaine purchases involved parti-

cipants in the conspiracy charged here and, in fact, occur-

red during that conspiracy. Evidence of each transaction

was “clear and convincing” in that either the witness himself

had made the purchase or a fellow co-conspirator, who had

purchased the drug, related that information to the witness.

These witnesses not only testified that the purchases had

been made, but they also stated the persons involved (Tr.

104, 543, 588, 749), the place of the transaction (Tr. 103-104,

543, 588, 748), and, on at least one occasion, the purchase

price (Tr. 749).’ Furthermore, the trial court did not abuse

its “wide range of discretion” in concluding that the

probative value of the evidence outweighed its inherent

Petitioner's assertion (Pet. 41) that the evidence was not “clear

and convincing” because the record does not show whether the prior

acts Were specific intent crimes is insubstantial. The sale or pur-

chase of a controlled substance proscribed by 21 U.S.C. 841(a)(1). or

aiding and abetting such a transaction, requires the same type of

intent as the crime charged here conspiring to distribute a con-

trolled substance in violation of 21 U.S.C. 846. Ingramy. United States,

360 U.S. 672. 678.

Petitioner's reliance on United States v. San Martin, 50S F. 2d

YTS (CLA. 5S). to show that the evidence of the prior criminal activity

Was insullicient “because only the fact of the offenses and not their

circumstances were introduced” (Pet. 41) is misplaced. In San

Vartin the issue was whether the defendant intended to assault

an FBI agent, or whether he did so aceidentally. The court emphasized

that “evidence of prior crimes involving intent of the moment are

hardly ever probative of later acts involving similarly split-second

intent.” /d. at 923. Accordingly. the court held that the mere recital

that a conviction occurred, without setting forth the circumstances

involved. had more to do with the defendant's overall disposition or

character than with the type of intent necessary to commit the

offense charged. Here. in contrast. the intent involved a conspiracy

to distribute narcotics and the interstate transportation of the drug.

and the circumstances of the prior criminal acts were stated.

Oe RE ERB As GRAS

FEE NT TR. EPL RII MRT BE ETE Pi eI

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prejudicial effects. United States v. Crockett, supra, 514 F.

2d at 72.

4. Finally. petitioner contends (Pet. 43-44) that the evi-

dence was insufficient to sustain his conviction, because.

he says, only a buyer-seller relationship, not a conspira-

torial agreement, existed between him and his co-

defendants. He concedes (Pet. 44) that the evidence

against his co-defendants was “overwhelming.”* How-

ever, viewing the evidence most favorably to the gover-

ment (Glasser v. United States, 315 U.S. 60, 80), it

supported the jury’s verdict against petitioner on each

of the three counts; indeed. the petitioner’s involvement

in the conspiracy, like that of his co-defendants, was

“overwhelming.”

The conspirators were involved in a large scale distri-

bution scheme, a necessary concomitant of which was a

source of Mexican marijuana, which petitioner pro-

\ided. After meetings with co-conspirators Thomas and

Johnson in July of 1973, he agreed to supply the marijuana.

His relationship to and interest in the scheme did not

cease after a single sale but extended over a series of

transactions. Petitioner maintained contact with his

fellow co-conspirators throughout the conspiracy and

personally met with them on numerous occasions to dis-

cuss the availability and price of large quantities of mari-

Juana.

Thus, petitioner participated in an integral and active

way in the scheme. He “intended to participate in it”

‘Relying on United States y. Varelli, 407 F.2d 735, 747 (C.A. 7).

appeal after remand. 452 F.2d 193. certiorari denied sub nom.

Saletko vy. United States, 405 U.S. 1040, petitioner contends (Pet.

43-44) that his conviction must be reversed because of a prejudicial

transference of his co-defendants’ “overwhelming” guilt to him.

The prejudice arose in Varelli, however, because of a variance in the

number of conspiracies charged and those proven. That situation did

not exist here.

BLEED THROUGH

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ase Si ab

(United States vy. Cirillo, 499 F.2d 872. 883 (C.A. 2). cer-

tiorari denied. 419 U.S. 1056). sought “to further its pur-

poses” (United States vy. Cianchetti, 315 F.2d 584, 588

(C.A. 2)) and had a stake in its outcome.

Moreover. contrary to petitioner’s contention (Pet.

23-26). the evidence showed that he aided and abetted

and caused the use of interstate commerce to carry out

the distribution scheme, in violation of 18 U.S.C. 1952(a)

(3). Petitioner was aware that the marijuana would

travel interstate by automobile. and he coordinated with

co-conspirator Thomas the importation of the marijuana

and its loading into automobiles for shipment to Virginia

and West Virginia. He also advised the participants

about safe routes to take out of Arizona in order to avoid

detection by the police. Petitioner's interest in the success

of the venture did not, as he contends (Pet. 26). terminate

at the conclusion of each sale.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

ROBERT H. Bork.

Solicitor General.

RICHARD L. THORNBURGH.,

Assistant Attorney General.

JEROME M. Fett.

MICHAEL J. KEANE,

Attorneys.

APRIL 1976.

DOJ-1976-04

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