# Opposition Brief — Pickette v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2141%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1976 - **Citation:** 425 U.S. 935 ## Text ANDEX Page ere it) ER OnE ee aT ae ae oe’ ERE A aa EA i Ie SOP Pe ees ED l I I a soy cdcsincusdadinn c¥anieiadehobunddedaasbsusnaain I an ERTS gh LA RI aS RO TR ee 2 NINE sisi nceus ctabbacsnas raxalenadssupnssecepeuasbabhavadsecianiccaueedis 3 TG a CTR I a nD ee 2 ESE 1] 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 i EE LOE OE IIA E EIL EL ERLE LILES FOES BV RE BLE yl a ral a women il 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: cle cg A SO Ce ORE EON LOR ora FE Oe 2 Be Fac’ SOUND Si iisusnich teases eiaiiesicshukesdaaaiouen 2, 5, 11 Be eta cP: 4d Gig Visas inselask vcaanan dle uapaonaienne 5 ees Me sticks scneahbngncenatcchb ieceeesaneasianase 9 ee es IIE nents sical cca saddisnnedosa ccotcage ome uaiane 2,9 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) NSO REE RE “ote eT Se eee ee » SPT SE EET HS 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 ae ee ee tz PIERRE Pert TRIO 3 (reeset etree oy creer er Ss 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). as Pa ee PLO OIE IOS SOoaes Se = a aR od FDR SRR LOOM TS 6 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 eee ee 10 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 ae a a ee Oe 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 ad Rl ie OY Toe ee ew --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2141%3A2. Public record. Not legal advice.