Opposition Brief — Schifter v. United States

In the Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-1367

BERNARD SCHIFTER, PETITIONER

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.) is not

yet reported.

JURISDICTION

The judgment of the court of appeals was entered on

February 26, 1976. The petition for a writ of certiorari was

filed on March 25, 1976. The jurisdiction of this Court is

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

QUESTIONS PRESENTED

1. Whether there was probable cause for petitioner's

arrest and for the subsequent seizure of stolen goods from

his automobile.

2. Whether the evidence supports the district court’s

ruling that petitioner was advised of his rights under

Miranda v. Arizona prior to making any post-arrest state-

ments.

(1)

2

3. Whether the district court’s instruction to the jury on

the voluntariness of petitioner’s post-arrest statements

complied with 18 U.S.C. 3501.

STATEMENT

After a jury trial in the United States District Court for

the Eastern District of New York, petitioner was convicted

of unlawfully possessing and transporting a quantity of

stolen camera lenses and accessories, in violation of 18

U.S.C. 549 and 659. He was sentenced to concurrent terms

of two years’ imprisonment on one count and ten years’

imprisonment on the other, subject to study and report

under 18 U.S.C. 4208(b) and (c). He was also fined $10,000.

The court of appeals affirmed (Pet. App.).

1. On August 8, 1974, a shortage of nineteen cartons

of imported cameras, lenses and accessories was discov-

ered at John F. Kennedy Airport in Queens, New York.

This merchandise was valued at approximately $27,816

(Tr. 133-138, 141-144).

In September 1974, petitioner informed August Zolfo

that he had some camera lenses and asked if Zolfo could

“handle” them in his store (Tr. 152). Zolfo said that he

would first have to see the lenses and have some of his

friends look them over. On the next day, petitioner pro-

vided Zolfo with one of the lenses for his inspection (Tr.

151-157).

On September 19, 1974, United States Customs agents

met with Zolfo and determined through an investigation of

a list of the serial numbers of the lenses stolen from Ken-

nedy Airport that the lens provided by petitioner to Zolfo

was part of that shipment. After being informed of this,

Zolfo cooperated with the authorities and called petitioner

in order to arrange a purchase of the remaining lenses.

With Thornton listening to the conversation over an ex-

tension telephone, Zolfo asked petitioner if “[he] had any

RLEED THF OUGH

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additional lenses at that time” (Tr. 246). Petitioner said

he did, and Zolfo then made arrangements with petitioner

to have his friend purchase the lenses the next day at peti-

tioner’s gas station in Brooklyn (Tr. 38-42, 80-81, 154-

_ 160, 245-248).

The next day, Joseph Giordano, a detective with the

New York Port Authority Police, who was working in an

undercover capacity, met with petitioner in the office of

the gas station. Giordano was equipped with a body re-

corder and transmitting device to enable other agents, who

were conducting surveillance, to know when the sale was

made. Giordano and petitioner negotiated the sale of

twenty-one lenses for $1,000, which Giordano paid peti-

tioner in one hundred dollar bills. They then proceeded

to petitioner’s station wagon, which was parked nearby,

and Giordano observed two boxes in the rear of the car.

One box had a visible camera lens in it; petitioner also

showed Giordano a box of camera accessories and stated

that “[w]e have 400 cameras, too” (Tr. 82-87, 101, 104-106,

161-164). The surveilling agents, having received a pre-

arranged signal indicating that petitioner had been paid

the money, then arrested petitioner (e.g., Tr. 4-5, 17-18,

52-54, 82-84, 191-192; November 21, 1975 Tr. 5-7, 17-

19, 34-37)!

Agent Thornton, who arrested petitioner, testified that

when he arrived at the gas station he observed petitioner

and Giordano standing together at the rear of petitioner's

car, which had two large containers in it (Tr. 5-8, 17-21).

After Thornton advised petitioner of his rights in accord-

ance with Miranda vy. Arizona, 384 U.S. 436, petitioner

was searched by Customs Agent Thomas Maxwell. The

$1,000 given to petitioner by Giordano was found in peti-

November 21, 1975 Tr.” refers to the re-opened suppression

hearing commenced on that date.

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tioner’s pocket. After being readvised of his rights by

Maxwell, petitioner stated that the $1,000 was for “gas

money” (e.g., Tr. 10-12, 48, 56-70, 178-179, 251; November

21, 1975 Tr. 30). Subsequently, petitioner was once more

advised of his rights by both Thornton and Maxwell,

and in response to questions by the agents regarding his

possible cooperation in the investigation of the stolen

merchandise, petitioner stated that if he cooperated “his

bones would be spread a!) over the airport” (e.g., Tr.

15-16, 241-242, 253).

The boxes in the station wagon at the time of peti-

tioner’s arrest contained camera lenses and accessories

that were part of the stolen shipment (Tr. 277-279).

2. Prior to the commencement of the trial, petitioner

moved to suppress his post-arrest statements on the

ground that he was not given Miranda warnings and to

suppress the seized merchandise on the ground, inter alia,

that there was no probable cause. After a hearing, the

district court denied both motions. It stated (Tr. 122):

I find that Thornton gave [the] defendant an adequate

warning when he first apprehended him; and | find

that the other warnings, while they certainly helped,

that he had been given an adequate warning were

unnecessary in the light of the first warning.

Secondly, * * * what search there was took place as

an incident to the arrest immediately following the

commission of the crime * * *. [T]he tapes show

when coupled together with the testimony of this

last witness, they did know a crime had been com-

mitted.

Prior to the imposition of sentence, the district court

allowed petitioner to re-open the suppression hearing to

call additional witnesses (see November 21, 1975 Tr.

1-45). Petitioner’s renewed motion to suppress was denied

SLES LE SARA LEAL ABE SLOG LLL TT RS

RE LOR ERM

(December 5, 1975 Tr. 27; see id. at 15, 19).2 Petitioner's

contention that the court’s instruction regarding his admis-

sions had been inadequate also was rejected (December

5, 1975 Tr. 32).

ARGUMENT

1. Petitioner contends (Pet. 21-24) that the agents

had insufficient probable cause either to arrest him or to

seize the boxes of stolen merchandise from his car. But

the record shows the agents had ample cause to do these

things. Thornton knew that petitioner had given a lens to

Zolfo that was part of the shipment stolen from Kennedy

Airport, had agreed with Zolfo on the previous day to sell

additional lenses to Zolfo’s friend, and had taken $1,000

from Giordano in payment for the lenses. These facts

combined to create circumstances “sufficient to warrant

a prudent man in believing that [petitioner] had commit-

ted or was committing an offense.” Gerstein v. Pugh, 420

U.S. 103, 111-112, quoting from Beck v. Ohio, 379 U.S.

89, 91.3 Since petitioner was arrested by the rear of his

station wagon, the seizure of the stolen merchandise was

proper as incident to the arrest. E.g., Chimel v. California,

395 U.S. 752, 763. Beyond this, the officers had been aware

that the station wagon contained two large cartons and

that one of the boxes contained a lens. This independ-

ently provided the agents with cause to seize what they

reasonably believed was the contraband. Cf. Texas v.

White, 423 U.S. 67; Chambers v. Maroney, 399 U.S. 42,

48; Ker v. California, 374 U.S. 23, 42-43.

“December 5, 1975 Tr.” refers to the re-opened suppression hear-

ing continued on that date.

‘Petitioner's claim that there was no probable cause is also in-

consistent with the position he took during the suppression hearing,

at which he argued that a search warrant was required before a search

of his car could have been conducted because the agents had probable

cause (see Tr. 119, 121).

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2. Petitioner contends (Pet. 11-20) that the district

court erroneously found that he was advised of his rights

under Miranda. But the district court, which has the task

of weighing the credibility and recollection of witnesses,

chose to credit the testimony of four arresting officers who

testified that Miranda warnings were given prior to peti-

tioner’s admissions (Tr. 114, 116-119, 122, 128, 130:

December 5, 1975 Tr. 14-22, 26-27). The court's finding

must be upheld unless it was clearly erroneous. E.g.,

United States v. Rosa, 493 F. 2d 1191, 1193-1194 (C.A.

2), certiorari denied, 419 U.S. 850. There is no need for

this Court to review this essentially factual question,‘

which was resolved adversely to petitioner by the court of

appeals. See Graver Mfg. Co. v. Linde, 336 U.S. 271, 275.

3. Petitioner contends (Pet. 6-10) that the district

court's instruction to the jury on the voluntariness of his

post-arrest statements did not comply with 18 U.S.C.

3501. Petitioner did not request a specific instruction and

did not object to the instruction given by the court; hence,

review would be warranted only if there was plain error.

See Fed. R. Crim. P. 30, 52(b). There was no error in this

case.

‘Petitioner's contrary claim is premised primarily on the fact that

a two-minute tape recording of the arrest, which was made from con-

versations over Giordano’s transmitting device, does not include any

Miranda warnings. However, the evidence showed that Giordano

was separated from petitioner after his arrest and that he did not hear

any warnings given to petitioner (e.g., Tr. 89-90, 194-200, 257-259.

291-292; November 21, 1975 Tr. 20-23, 32-33). Thus, the court properly

determined that the recording device worn by Giordano and the

tape, which had “a lot of inaudibility” and “substantial gaps.” and

which petitioner himself stated was not “too clear” (Tr. 113, 233-234.

237-238). could not have picked up all the conversations following

petitioner's arrest (Tr. 114, 127-129; December 5, 1975 Tr. 14-15.

19-20).

>

The jury was instructed to disregard entirely petitioner's

admissions “unless the evidence in the case convinces

the jury beyond a reasonable doubt that the statement[s]

* * * [were] ‘knowingly’ made or done * * * . In deter-

mining [this], the jury should consider * * * [among

other circumstances] [the] physical and mental condition

of [petitioner] while in custody or under interrogation,

*** and also all other circumstances in evidence sur-

rounding the making of the statement * * * , including

whether [he was given a proper warning of his rights]”

(Tr. 346-347). This instruction more than adequately

complied with the requirements of 18 U.S.C. 3501.5

United States vy. Barry, 518 F. 2d 342 (C.A. 2),

relied on by petitioner (Pet. 6-10), is beside the point.

Barry does not prescribe any specific language that must

be included in an instruction under 18 U.S.C. 3501;

it merely held that a “standard boilerplate charge on

credibility,” with no “specific reference to a confession”

(518 F. 2d at 347), failed to comply with Section 3501.

That holding is not applicable to this case, in which there

was a specific instruction regarding petitioner's admissions.

‘Indeed, the instruction actually given goes beyond the require-

ments of 18 U.S.C. 3501(a) in that it required the jury to find volun-

tariness beyond a reasonable doubt before it considered the post-

arrest statements. Under the statute, there is no such requirement.

After the court finds a confession to be voluntary, it

shall be admitted in evidence and the trial judge shall permit the

jury to hear relevant evidence on the issue of voluntariness and

shall instruct the jury to give such weight to the confession as

the jury feels it deserves under all the circumstances. [18 U.S.C.

3501(a).]

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Ropert H. Bork,

Solicitor General.

RicHARD L. THORNBURGH,

Assistant Attorney General.

Jerome M. Feit,

HowarRD WEINTRAUB,

Attorneys.

May 1976.

DOJ-1976-05