Petition — Hampton v. United States

IN TIIE

‘estraitas vette

SUPREME COURT OF THE UNITED STATES

October Term, 1974

v.44 ~ D822

CHARLES HAMPTON,

Petitioner,

- vs -

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE |

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

DAVID A, LANG

Law Offices of Forriss D. Elliott

4625 Lindell - Suite 500

St. Louis, Missouri 63108

314-361-3800

Counsel for Petitioner

January 8, 1975

JAN 10 1975

eth 3 JPREME UOUbT, U.S. |

INDEX

ly OF THE CLERK

SUPREME COURT OF THE UNITIZAD STATES

October Term, 1974

—— — —

CHARLES HAMPTON,

Petitioner,

- VS -

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

DAVID A, LANG

Law Offices of Forriss

4625 Lindell - Suite 500

Missouri 063108

D. Elliott

St. Louis,

314-361-3800

Counsel for Petitioner

January 8, 1975

*eeeeneeeeeenr

Opinions Below. ...+++++eee

Jurisdiction, ...eseeeeeeeees

Questions Presented. ....+++-.

eseeoeveevoenoenee eevee eoeeee20280808

Statement of the Case....++-.

Reasons for Granting the Writ. ....eeeeee.

Conclusion. ...e-e-.

Appendix (Opinion Below). .-eeeceeererrrererererercrcccccveseees

7

8

IN THE

| ; , x = a

CITATIONS SUPREME COURT OF THE UNITED STATES

Cases | Page October Term, 1974

Greene v. United States, 454 F. 2d 783 (9th Cir. 1971). eee eee eeeene 6

State Ve Bocelli, 105 Ariz. 405, 467 P.2d 740 yn RUT EEEET ETT eS | _

State v. Powell, 181 S, E, 2d 754 (N.C. App. 1971)...... TETTTITTit Th.

) United States v. Bueno, 447 F. 2d 903 (5th Cir. 197]l).. ce cee eee eee ee D

CHARLES HAMPTON,

United States v, Dillett, 254 F. Supp. 980 (S.D.N.Y. 1966)........ 006

Petitioner,

United States v. Oquendo, 490 F, 2d 161 (5th Cir. 1974). ... cc eeeceess 6

- ¥vVB -

United States v. Russell, 411 U.S, 423 (1973)... .ccccesccccccsecsees 3,6

‘ UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

The Petitioner, Charles Hampton, respectfully prays that a Writ of

Certiorari issue to review the judgment and opinion of the United States

Court of Appeals for the Eighth Circuit entered on December ll, 1974,

OPINIONS BELOW

| The opinion of the Eighth Circuit not yet reported, appears in the

Appendix, hereto.

JURISDICTION

The judgment of the Court of Appeals was entered on December ll,

1974. This petition for Certiorari was filed within 30 days of that date.

This Court's jurisdiction is invoked under 26 U,S,C, 81254 (1).

QUESTION PRESENTED

l, Whether the Due Process Clause of the Fifth Amendment forbids

the conviction of a defendant for selling contraband, if the contraband

sold by the defendant was supplied by the Government,

STATEMENT OF THE CASE

After a jury trial in the United States District Court for the Eastern

District of Missouri, petitioner was convicted on two counts charging him

with distributing heroin in violation of 21 U.S.C. $841 (a) (1). He was sen-

tenced to five years imprisonment and a three-year special parole term

on each of the two counts. The imposition of sentence was suspended and

the defendant was placed on probation for five years; said probation con-

ditioned upon defendant's remaining in the custody of the North Carolina

prison system during the period of his probation, The Court of Appeals

affirmed the conviction in all respects.

At the trial, the Government introduced the tesitmony of five witnesses

in the case in chief and three witnesses in rebuttal, The defendant intro-

duced the testimony of four witnesses, and he also testified. By agreement

of the parties, the testimony of the defendant's other witnesses was not

before the Court of Appeals for consideration,

A number of the important facts of this case are in dispute. The

following view of the facts may, however, be drawn from the testimony of all

the witnesses, but particularly that of the petitioner (hereinafter referred

to as the defendant).

The defendant testified that soon after he moved to St. Louis with his

ommon-law wife and four-year-old son, he began to frequent a loung2 in

his neighborhood called the Pub Bar and Grille. At the Pub, a man who

introduced himself as ''James Gray" struck up an acquaintance with him.

(Tr. 48). Soon he and "Gray" became close friends, based on their mutual

acquaintances in Chicago and their skill at playing pool. (Tr. 48, 118).

Hampton was later to learn that ''James Gray" was, in reality, Jule Hutton,

a Special Employee of the Drug Enforcement Administration of the United

States Government. (Tr. 53). Hutton had been involved "'as a special agent

or special employee of the government" in ''more"’ than "80 or 90 narcotics

transactions.'' (Tr. 54).

Hutton, aware that the defendant and his farnily were in serious finan-

|

cial straits, proposed a plan whereby they could both make some ‘'clean"’

money. (Tr. 119, 147), Under this plan, defendant testified, Hutton would

obtain a quantity of counterfeit narcotics for sale to some gullible acquain-

tance of Hutton's in town from Colorado. (Tr. 121). This substance would

be obtained, Hutton told Hampton, from a friend of Hutton's who worked in

a pharmacy (Tr. 121), and the substance thus obtained would simulate heroin

in every apparent respect (Tr. 121, 122, 124, 128, 137, 138).

Defendant testified at trial that Hutton did subsequently deliver sucha

substance to him on or about February 25, 1974. At that time, defendant

testified, Hutton handed him a foil-wrapped package containing the sub-

stance that Hampton, soon after, sold to Special Agent Terry C. Sawyer.

(Tr. 130-131). During that transaction on February 25, 1974, Special Agents

Sawyer and McDowell initiated the making of arrangements for another such

transaction, to be consummated the following night, February 26, 1974. (Tr.

132).

Defendant further testified that again, on or about February 26, 1974,

Jule Hutton delivered to him a quantity of a substance that he sold later that

evening to Special Agent Sawyer. (Tr. 139). At that time, defendant tes-

tified, Hutton delivered two small tinfoil packets to him at Hutton's apart-

ment. (Tr. 139). Both Hutton and Hampton participated in the preparation

of one large package of the substance from the two small tinfoil packets.

The Court of Appeals stated clearly that its reason for reje~ting peti-

(Tr. 140). Hampton sifted the mixture through a nylon stocking, and Hutton

tioner's argument was that it believed this Court's opinion in U.S, v. Russeli

wrapped the substance in tinfoil. (Tr. 140).

411 U.S. 423 (1973)\)foredosed it from considering any theory of entrapment

; ; A , : ; anied the

Hutton, on direct examination, te stified that he again accompani¢

-L

founded on other than defendant's lack of predisposition, and since it was

defendant to the agents' car, (Tr. 43), and that he got into the rear seat, and

conceded by petitioner's counsel that he was predisposed to cormmit the of-

» defendant into the front. (Tr. 43). After Hampton passed the tinfoil

,

fenses, he was entitled to no other entrapment instruction,

(App. 9 infra. .

e substance to Special Agent Sawyer, Sawyer got out of the auto-

at pp-

5,7).

a — ¢ ‘ . . » "

mobile, and Special Agent Mc Dowell announced that he and Sawyer were

REASONS FOR GRANTING THE WRIT

narcotics agents and that both Hutton and the defendant were under arrest.

The issue in this case is of fundamental importance for determining

(Tr. 44).

the constitutional methods that law enforcement officials can properly use

nbers after closing argurnents, the defense moved for a spec ial

to detect victimle: rimes, This Court specifically recognized in Russell,

defense of entrapment which reads in relevant part:

infra, that some conduct of law enforcement officials may be so "outrageous

The defendant asserts that he was a victim of entrapment as

‘ harged in the indictment, that due proc esa prince iples would absolutely bar the government from in-

lf you find that the defendant's sales of narcotics were voking judicial processes to obtain a conviction," but held that on the facts

‘

narcotics supplied to him by an informer in the em-

i > UAL

ploy of or acting on behalf of the government, then you must before it, the government's conduct did not reach this point. (411. U.S, 431-

acquit the defendant because the law as a matter of policy for-

bids his conviction in such a case. 432).

Furthermore, under this partic ular defense, you need In Russell, this Court held that where an undercover narcotics agent

not consider the predisposition of the defendant to cormmit

the offenses charged, because if the governmental involve- who was investigating the defendant for illicitly manufacturing a drug, offered

ment through its informer reached the point that I! have just ;

defined in your own minds, ther the predisposition of the him an essential ingredient which, although difficult to obtain, was legal to

defendant would not matter.

possess and was obtainable, this did not constitute entrapment as a matter

Petitioner's motion for the above requested instruction was denied, and

of law, Thus this Court in Russell left open the question of what types of

the C rt gave no jury instruction whatsoever on entrapment.

law enforcement conduct might be sufficiently outrageous to bar prosecution

The Court of Appeals upheld petitioner's conviction for distribution of

for a case by case adjudication,

heroin d pite his assertion that he « ould not be convicted as a matter of

However, both prior and subsequent to the decision ia Russell, there

law, ré rdle f his predisposition to commit the offenses, when the —_———

has been a growing body of authority that universally condemned one parti-

her he ld was provided him by a paid government informer. Petitioner

cular law enforcement practice - that of supplying the very contraband to

further asserted before the Court of Appeals that since there was a factual

the defendant that was the ubject of the offense with which he was charged.

dispute as to his source of supply of the heroin, his requested instruction

U.S, v. Bueno, 447 F, 2d 903 (5th Cir, 1971); U.S. v, Dillett, 254 F. Supp.

shoulc ave bee to the jury to let them decide that factual issue. a a

offs

.4-

Oquendo, 490 F, 2d.

CONCLUSION

S 1971). More-

P.2d 740 (1970); State v. Powell, 161 S.E. 2d 754 (N.C. App.

For these reasons, a Writ of Certiorari should issue to review the

over, both Russell and the government suggested in their briefs before the

judgment and opinion of the United States Court of Appeals for the Eighth

Court in that case that a conviction may be prec luded on due process grounds

Circuit.

sole source of an otherwise unobtainable and

when the government was the

Respectfully submitted,

necessary means to the commission of an offense. (411 U.S. at 431, n. 8).

Indeed,

the government in the commission of a crime on a greater magnitude than

supplying the sine qua non of the offense. Hence, as a practical matter, if

the dissent's fore

January 8,1975

it is difficult to fathom a law enforcement prac tice that involves

f 7

A

{

DAVIDA. LANG \ |

Law Offices of Forriss D. Elliott

4625 Lindell - Suite 500

St. Louis, Missouri 63108

314-361-3800

this particular law enforcement pra¢ tice is not forbidden,

Counsel for Petitioner

boding in the instant case seems parti« ularly apt:

_.. In the future, it is difficult to see how any cefendant in

this circuit can possible raise the due process defense which

the Russell Court sought to leave open... (App. , infra, P.10).

Thus, the important question raised by this case is whether the Court

properly reading the Russell decision, The Eighth Circuit's

of Appeals 1s

holding in this case is in direct conflict with a post- Russell Fifth Circuit

holding that Russell did not overrule that Court's prior decisions that en

trapment is established as a matte! of law to a charce of possessing or dis

tributing contraband where such « ontraband was supplied to the defendant

by a government agent or paid informer. See U.S. v. Oquendo, 490 F.2d

161 (5th Cir. 1974).

The effec of the holding of the Court of Appeals in the instant case 18

that anything 18 permis sible in law enforcement as long as the defendant

was willing or predisposed to commit the offense. This holding clearly

goes beyond anything this Court intended in Russell, is not consistent with

the rationale behind Russell, is in direct conflict with the Fifth Circuit's

holding in Oquendo, and for these reasons should be reviewed by this Court.