Petition — Skartsivas v. United States

Supreme Court, U. &

FILED

AUG 15 1975

MICHAEL RODAK, JR., CLERK

NO. 75-370

UNITED STATES OF AMERICA

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1975

GUS JOHN SKARTSIVAS, PETITIONER

Ve

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR

THE SIXTH CIRCUIT

J. RUSSELL HUGHES, SR.

J-« THOMAS CARROLL, JR.

Counsel for Petitioner

207 Main Street

Harrisville, a

48740

1-517-724-6822

INDEX

CITATIONS OF AUTHORITY eccccccccces

OPINION BELOW ccccccccecesoeecesoce

JURISDICTION. cocccccececesecececes

CONSTITUTIONAL PROVISION IN-

VOLVED eccoccoccccecesccecceccocs

STATUTE INVOLVED ccc ccccccceccccece

QUESTIONS PRESENTED. cecscceccsecces

STATEMENT OF THE CASE.coccescececs

ARGUMENTS

I. PETITIONER WAS ENTRAPPED

AS A MATTER OF LAW BE-

CAUSE, PRIOR TO AFFORDING

PETITIONER THE OPPORTUNITY

TO COMMIT THAT CRIME, THE

GOVERNMENT AGENTS, ON THE

BASIS OF THEIR UNDISPUTED

TESTIMONY AT TRIAL, POS-

SESSED NO FACTS ON WHICH

THEY COULD FORM A REA-

SONABLE BELIEF THAT PETI-

TIONER WOULD COMMIT THAT

CRIME ccccccccccceccccccece

II. WHERE THE TESTIMONY OF AN

INFORMANT AT A PRIOR TRIAL

WAS LARGELY EXCULPATORY OF

PETITIONER, THE GOVERNMENT

HAD AN OBLIGATION, AS A

MATTER OF DUE PROCESS, TO

CALL THAT INFORMER UPON

RETRIAL OF PETITIONER AND

NOT REQUIRE PETITIONER TO

CALL HIM IN ORDER TO MAKE

OUT HIS DEFENSE ccccccccvccs

CONCLUSION ec ccccccccccecccccececes

EXHIBIT Acece eeeseeeveeeee@eeeeeeeeees

EXHIBIT Beccccccccccecsecescecese

Page

" FWND HEF:

14

CITATIONS OF AUTHORITY

erady Vv qorisane 373 U.S. 83

196 sas soon «lil Ae a

Giglio v Und sed States, 405 U.S.

0 ( 5 55 RE AT

Henderson v aes atates. 216 F.2d

5th re 9 erecesseseee

Kadis v “ERS aac 373 F.2d

370 t r. 19 TTT

eee v United Stee 490 F.2d

6 ( th Te q Solow a

ez v United States, 373 U.S. 427

196 @eeeeeeee eevee eve eeeeeeeeeeee@

Lunsfo v United States, 200 F.2d

(10th Cir.

Morales v United States, 260 F.2d

439 (6th Cir.

Morei v United ae 127 F.2d

B27 th Cir. 9 Bisceeeeecescoe

On Lee v United States, 343 U.S.

747 ( 952 eeeeeveeoeeaev eee eee eevee

Sherman v United States, 356 U.S.

9 (195

9 ereeeeseeeee

36,

29,

275

49

26

50

39, 46

Sorrells v United States, 287 U.S.

(19 Shecececececesececceocs

United States v Bryant, 461 F.2d

th cir. 10735

United States v eee 200 F.Supp.

9 eD.Pa. 4

United States v Costner, 359 F.2d

~ 969 (6th Cir, + eteeseeceses

U S vc » 477 F.2d 129

th le 1973 ecereerereseeses

United States v C ,» 284 F.Supp.

seo th DS I1I.

968 ) ecccccccece

United States v DeVore, 423 F.2d

9 th Cir. Drdeocececesse

United States v Fancutt, 491 F.2d

coe: >. Pore.) ere

tnited States Vv For, 437 F.2d

73 7th Cir. 1971), certio-

ad ed, sub m. G

v Unite es, 2 UsdSe

10 9 eeeeveeeeoeee eee en eee

(tab tacss ton, 507 F.2d

cert ora aries No.

5822, anuary 0, er

United states v Key, 371 F.2d 421

Ie Rdg hci Penal

ii

Page

18,

28,

42,

49,

395

28,

50

15

50

15

16

28

51

United States v McGrath, 468 F.2d

1027 (7th Cir. 1972) vacated

on other grounds, 412 U.S.

986 (1973 @eeeeeaeeeeeaeeeeee eevee

United States v ae! 228 F.Supp.

3 D.D.C. 9

United States v Ramsey, 220 F.Supp.

66 (E.D. Tenn. ise

Dieccocdeosee

United States v Russell, 411 U.S.

23 LPT so cevececeeceosoeeesese

United States v Walton, 411 F.2d

sees (oth Cir. 1969)

United ets Vv shies 324 F.2d

2 ir. 9 Seppe Se

United Sen v Williams, 488 F.2d

7 th Cir. __ eiiibeencireabeccell

United States v Willi 487 F.2d

nest : th Cir. 1973), certiorari

denied 416 U.S. 958 ( 97 eeece

whiting v United States, 296 F.2d

’ 5 9 re Ge bassbsae

iii

Page

29%

21

20, 49

UNITED STATES OF AMERICA

IN THE SUPREME COURT OF: THE UNITED STATES

GUS JOHN SKARTSIVAS,

Petitioner

vs. No.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion of the United States Court

of Appeals for the Sixth Circuit is unre-

ported. A copy of same is attached hereto as

Appendix A.

JURISDICTION

1. The opinion of the United States

Court of Anpeals for the Sixth Circuit was

rendered on June 30, 1975.

2. An order Extending the Time With-

in Which to File the Petition for Writ of

Certiorari was entered on July 28, 1975 by

Mr. Justice Marshall extending the time to

file to and including August 15, 1975.

3. Jurisdiction of this Court is pred-

icated on 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

In pertinent part Article V

provides:

No person...eShall be deprived

of life, liiberty, or property

without due process of laWeee.

STATUTE INVOLVED

In pertinent part, 21 U.S.C.

841(a) provides:

Except as authorized by this

chapter, it shall be unlawful

for any person knowingly or

intentionally

(1) to manufacture, distribute,

-2@

EE

or dispense, or possess with

intent to manufacture, distrib-

ute, or dispense, a controlled

substance,

QUESTIONS PRESENTED

I.

WHETHER PETITIONER WAS ENTRAPPED AS A MAT-

TER OF LAW BECAUSE, ACCORDING TO THE UNDIS-

PUTED TESTIMONY OF GOVERNMENT AGENTS, THEY

POSSESSED NO REASONABLE GROUND(S) TO BE-

LIEVE PETITIONER WOULD SELL OR POSSESS NAR-~

COTICS BEFORE INITIALLY AFFORDING HIM THE

OPPORTUNITY TO DO SO.

il.

WHETHER THE GOVERNMENT WAS REQUIRED UNDER

THE DUE PROCESS CLAUSE AND UNITED STATES v

BRYANT, 461 F.2d 742 (6th Cir. 1973), TO

CALL AS A GOVERNMENT WITNESS AN INFORMANT

WHOM, ON THE BASIS OF HIS PRIOR TESTIMONY,

IT KNEW, OR OUGHT REASONABLY TO HAVE KNOWN,

WOULD GIVE TESTIMONY EXCULPATORY OF PETI-

TIONER.

STATEMENT OF THE CASE

Petitioner was convicted in the United |

States District Court for the Eastern Dis- |

trict of Michigan, after a trial by jury,

on two counts of possession and sale of

heroin in violation of 21 U.S.C. 841(a)(1).*

On October 22, 1974, Petitioner was sen-

tenced to five years’ imprisonment on each

count, the sentences to run concurrently,

plus a special three year parole term,

The trial from which the appeal below

was taken was Petitioner's third

trial. Petitioner's plea of guilty

was withdrawn after he asserted that

a witness could corroborate his claim

of coercion by the government in-

formant. The first trial resulted

in a verdict of guilty on both counts.

The trial court ordered a new trial

principally on the basis of the inade-

quacy of prior counsel. The second

trial ended in a mistrial when the

jury was unable to reach a verdict.

-4.

The evidence adduced at trial, which

is pertinent to issues hereafter raised, dis-

closed the following.

(a) The Investigation

In early or mid-September, Agent Frank

Catalogna, of the Drug Enforcement Administra-

tion, began an investigation utilizing an in-

formant, Frankie Mays. Mays was to attempt

to arrange for Petitioner to sell narcotics

to an undercover agent (Tr. 86-87, 148),##

Agent Catalogna testified that he had known

** “Tr.” denotes the transcript of

the trial below; "T.Tr." denotes

the transcript (Exhibit 6) of taped

recordings (Exhibit 5) introduced

in this case; the court reporter

did not include in the trial

transcript the playing of the

tapes (see Tr. 28-29); “F.M.Tr."

denotes the transcript of Frankie

Mays' testimony at the second trial;

"R." denotes the record below. The

Clerk of the Court of Appeals has

been + ~:~ to certify the rec-

ord to the Clerk of this Court.

See letter, Appendix B,.

o$

Mays only since early or mid-September and

that he had been introduced to him by Secret

Service Agents who indicated Mays wanted to

cooperate (Tr. 147-148). Mays provided

Agent Catalogna with some telephone numbers

(Tr. 87, 95) after which Agent Catalogna

surveilled the houses at which the phones

were listed. The agents, after jotting down

license plate numbers of vehicles at a house,

discovered one belonged to Petitioner (Tr.

95). Mays was then shown a picture of

Petitioner, whom Mays knew as Mike, and was

asked to tell Petitioner he had a customer

who was willing to buy narcotics (Tr. 95,

110).

On cross-examination it was disclosed

that neither Agent Catalogna, who had general

supervision over Mays, or Agent Smith, who

was the undercover agent in this case, had

-6-

ever seen or heard Petitioner deal in nar-

cotics prior to September 26, 1972, the date

of the first sale charged in the indictment

(Tr. 44, 142). Agent Catalogna further

testified that he possessed no personal know-

ledge of Petitioner's involvement in nar-

cotics (Tr. 142-143). Agent Smith had never

worked with Mays before and knew very little

about him (Tr. 46).

Mays was paid $300 for his work on Peti-

tioner's case (Tr. 146) and a total of $3,800

from August, 1972 to March, 1973 for work on

6 cases and for information supplied (Tr.

144-147). The “case fee" was apparently de-

pendent on Mays putting a narcotics dealer

in contact with a government agent to nego-

tiate a sale (Tr. 145).

(b) September 26, 1972 Sale

Agent Catalogna arranged with Mays to

have Petitioner call Mays on September 26, 1972

to arrange a sale (Tr. 11). Petitioner called

while Agent Smith (or "Dog" as he was known

in his undercover capacity) was at Mays'

home to set the amount (1 ounce), the price

($1,000), and the meeting place (Six Mile and

Wyoming) for the transaction (Tr. 12-13).

Under surveillance by Agent Catalogna, Dog

and Mays went to the meeting place. Peti-

tioner got in the car, transmitted a tin foil

package, identified as Exhibit 1, to Dog,

who in turn gave Petitioner $1,000 (Tr. 15-

17, 19, 88-89).

According to Agent Smith, Petitioner of-

fered a heavy quarter of heroin to Dog for

$200, explaining that another customer

didn't want it; Dog purchased the tin foil

wrapped package, identified as Exhibit 2,

o§e

for $200 (Tr. 18-19). Dog tneuared whether

Petitioner couid sell additional quanti-

ties. Petitioner replied “hat he could

be contacted through Mays (Tr. 20).

A field test and a later chemical

analysis disclosed that Exhibits 1 and 2 con-

tained heroin in a strength of 4% (Tr. 19-

20, 43-44),

(c) October 4, 1972 Sale

It was decided to attempt another pur-

chase without using the informer Mays, in

order to protect the informer, as well as to

insure that the transaction was not set up

by the informer “in underhanded ways"

(Tr. 63-66, 77-78).

Dog called Petitioner directly on

October 4, 1972 and recorded the ensuing

five conversations (Tr. 25-28), Agent Smith

identified himself to Petitioner as “Frankie's

=Quo

Boy, Dog” (Tr. 233 T.Tr. 1, 2). Peti-

tioner asked if Dog could “handle~ two

"O's", meaning whether he would buy 2

ounces of heroin (Tr. 30; T.Tr. 2). Peti-

tioner inquired if Dog could bring him the

"bread", meaning money, first (Tr. 323

T.Tr. 2). Agent Smith admitted, however,

that Petitioner did not use the usual nar-

cotics phrase “front the bread" and that

"bread" is a common slang term for money

(Tr. 56-57). Petitioner responded to Dog's

inquiry regarding the price of “two sport-

coats" (according to Agent Smith a phrase to

disguise talk about heroin), (Tr. 36) that

it would cost "194" meaning $1,950. Dog

responded, “about 19", meaning $1,900; Peti-

tioner would not accept an $1,800 price of-

fered by Dog (Tr. 36-38; T.Tr. 4-5). When

-10-

Dog complained about the quality of the nar-

cotics sold previously, Petitioner indicated

he would try to do better and that he was

doing the best he could (Tr. 35; T.Tr. 35).

The remainder of the conversations dealt

with the time and place of the meeting

(T.Tr. 5-7).

In the late afternoon on October 4,

1972, Dog, surveilled by Agent Catalogna,

met Petitioner at the appointed place and

time (Tr. 39, 91). Petitioner got in Dog's

car and gave him a plastic bag with a white

substance, identified as Exhibit 3, and Dog

gave him $1,900 (Tr. 40). Dog's attempt to

reach Petitioner's source was rebuffed

by Petitioner (Tr. 41). Petitioner stated,

according to Agent Smith, that he could con-

tact him by telephone if he needed more nar-

cotics (Tr. 41). A field test and a later

elle

chemical analysis contirmed that Exhibit 3

was heroin of 3% strength (Tr. 42, 43-44),

(d) Motion for Judgment of Acquittal;

Instructions

At the conclusion of the government's

case, motion for judgment of acquittal was

made. It was based on the undisputed facts

disclosing that the government agents had no

basis for a reasonable belief that, prior to

September 26, 1972, Petitioner would sell nar-

cotics if simply afforded an opportunity to

do so. It was argued that, under the deci-

Sions of the Sixth Circuit, and other cir-

cuits, Petitioner was entitled to acquittal

a matter of law (Tr. 153-180). The trial

court denied the motion (Tr. 181).

The defense also requested an entrap-

ment instruction tailored to the existence

or absence of the government agents’ reason-

-12-

as

able belief that Petitioner would commit a

narcotics offense if merely afforded the op-

portunity to do so (Tr. 183-189, 193-195).

However, the trial court denied the request

(Tr. 195) and gave its standard entrapment

instruction (Tr. 201-203, 214-215) to which

objection was made (Tr. 221).

ARGUMENT

I.

PETITIONER WAS ENTRAPPED AS A

MATTER OF LAW BECAUSE, PRIOR

AFFORDING PETITIONER THE OPPOR-

TUNITY TO COMMIT THAT CRIME, THE

GOVERNMENT AGENTS, ON THE BASIS OF

THEIR UNDISPUTED TESTIMONY AT TRIAL,

POSSESSED NO FACTS ON WHICH THEY

COULD FORM A REASONABLE BELIEF

THAT PETITIONER WOULD COMMIT THAT

CRIME

The evidentiary record at trial is

clear. Government agents possessed absolutely

no grounds upon which they could form a reason-

able suspicion, much less a reasonable be-

lief, that Petitioner would commit the crime

charged if merely afforded the opportunity

to do so.

This Court has not had occasion to con-

sider this issue. The Circuit Courts of Ap-

peal are divided upon this issue. See e.g.

Henderson v United States, 261 F.2d 909, 912

(Sth Cir. 1959); Morei v United States 127

~14-

F.2d 827, 833-834 (6th Cir. 1942); Morales

v United States, 260 F.2d 939 (6th Cir.

1958); United States v Fox, 437 F.2d 733,

735 (7th Cir. 1971), cert. denied sub nom,

Gill v United States, 402 U.S. 1011 (1971);

United States v Owens, 228 F.Supp. 300,

303-304 (D.D.C. 1964); Lunsford v United

States, 200 F.2d 237, 239 (10th Cir. 1953);

for circuits in which the “reasonable sus-

picion rule" is applied. Compare e.g. Kadis

v United States, 373 F.2d 370, 373 (lst Cir.

1967): United States v DeVore, 423 F.2d 1069

(4th Cir. 1970); United States v Williams,

487 F.2d 210, 211 (9th Cir. 1973); cert.

denied 416 U.S. 958 (1974) for circuits in

which the “reasonable suspicion rule” has

been rejected.

This Court has evidenced a desire to

olZ-

clarify the law in the area of entrapment.

United States v Russell, 411 U.S. 423 (1973);

United States v Hampton, 507 F.2d 832 (8th

Cir. 1974) cert. granted, No. 74-5822, Janu-

ary 10, 1975. This case presents a further

clear opportunity to do so. In the area of

entrapment, the issue presented here con-

stitutes a threshold question - a question

which, in many entrapment cases, chronologi-

cally and conceptually should be resolved be-

fore the trial court can consider the issues

determined in Russell and which are before

this Court in Hampton.

Jurisprudentially, and as a matter of

sound public policy, the “reasonable suspicion”

rule is sound. Surely nothing enunciated in

Russell, supra, appears to have been intended

to grant to the government carte blanche to

solicit the commission of crime from every

-16-

citizen, or any citizen, who happens to walk

down the street. As was stated in Sperman

v United States, 356 U.S. 364, 372 (1958),

whose philosophy and holding Russell reaf-

firmed, the government may seek to ensnare the

“unwary criminal” but is prohibited from

seeking to entrap the “unwary innocent.”

Perhaps one must return to the opinion

in Sorrells, (whose philosophy and holding

was also reaffirmed in Russell), in which

the underpinnings for the entrapment defense

were first set forth, in order to fully com-

prehend the limitations placed on the govern-

ment. Chief Justice Hughes opined:

We are unable to conclude that

it was the intention of the

Congress in enacting this stat-

ute that its processes of de-

tection and enforcement should

be abused by the pe tacat ic by

government x Fes of an act

on the part of persons otherwise

o]7-

innocent in order to lure them to

its commission and to punish

them. Sorrells, supra at 448.

(Emphasis supplied). See also

Sherman, supra at 372.

The key to the quotation is this Court's pro-

hibition against seeking to lure “otherwise

innocent persons" into committing crime. If

the Court meant only that the determination,

as to whether or not one was innocent, was

to be made at the precise point in time at

which the inducement was actually offered,

then the above quotation would be as worth-

less in protecting innocent citizens as a

warning written on tidal sands.

Manifestly, Chief Justice Hughes was

declaring that congressional policy would be

subverted and perverted if government offi-

cials could approach persons whom - prior to

approaching them - it did not reasonably be-

lieve or suspect would commit crime when of-

fered the opportunity to do so. This Court

-18-

must keep in mind that the purpose of allow-

ing the government to utilize inducement as

an artifice or stratagem is to seek out and

catch those “engaged in criminal enterprises".

Sorrells v United States, 287 U.S. 435, 441

(1932). (Emphasis supplied).

The government would argue to this Court

that the determination whether a defendant

was “engaged in criminal enterprises” is

a restrospective one. In other words, if

a citizen succumbs to the government's in-

ducement that citizen, ipso facto, is, or

has been, engaged in a criminal enterprise.

The fact that the citizen committed the

crime, the government would argue, is deter-

minative of the citizen's predisposition

to commit the crime if offered an opportunity

to do so.

Clear thinking opinions have rejected

-19-

this bootstrap argument. To argue that "pre-

disposition existed because the citizen in

fact committed the crime” begs the question.

See Sixth Circuit's perceptive commentary on

this point in Mgrei v United States, 127

F,2d 827, 834-835 (6th Cir. 1942); see also

United States v McGrath, 468 F.2d 1027, 1029

(7th Cir. 1972), vacated on other grounds,

412 U.S. 936 (1973). To accept the govern-

ment's position would be to virtually emascu-

late the defense of entrapment and would cause

the doors to be opened to the subversion of

congressional policy against which the Sor-

rells Court warned,.*

* The Ninth Circuit's statement, in

Williams, supra 487 F.2d at 21l,

that the “reasonable suspicion rule”

would not add to the protection af-

forded the innocent misses the juris-

prudential point and becomes bogged

down in conceptual mire of its own

making. Its frame of reference for

“innocence” is whether the person

afforded the opportunity accepted or

rejected it.

-20-

Unless the government is required to

possess information on which it can base a

reasonable belief or suspicion that a citizen

is "not otherwise innocent” but “is en-

gaged in criminal enterprises" before attempt«

ing to induce that citizen to commit a

specific type of crime, how is the government

going to know that it is approaching only

those engaging in illegal activities. Unless

such a requirement continues to be imposed,

the judiciary will be countenancing mere

governmental “surmise(s) from the shadows -

a guess in the dark" (Compare Whiting v

United States, 296 F.2d 512, 519 (lst Cir.

1961)) regarding a citizen's propensity to

commit the proffered crime.

The determination whether the government

has sought to induce an innocent person to

commit crime must initially focus on informa-

-21-

tion possessed by the government prior to

approaching a citizen. Ir the government

satisfies the "reasonable suspicion” test

then, of course, it may offer the opportunity

to commit the crime and, at trial, it may seek

to show actual predisposition to overcome

the entrapment defense by adducing evidence

arising from the transaction itself. But,

the government must establish, in effect,

that it "knew what it was doing” before

seeking to induce commission of a crime,

To hold otherwise would be to permit

the government to approach anyone: at anytime,

anywhere to attempt to effectuate a criminal

act. Such a notion is repugnant to American

jurisprudence.

This case affords ampie justification

for the existence and application of the

"reasonable suspicion” rule. The evidence

-22-

at trial disclosed that prior to the date of

the first sale neither Agent Catalogna, the

agent-in-charge, nor Agent Smith had met Peti-

tioner. Neither agent had overheard Peti-

tioner deal in, or discuss, narcotics.

Neither agent had seen Petitioner deal in

narcotics. The only information possessed

(if it can be called that) was Agent Catalogna's

testimony that he saw a car, which he later

identified as belonging to Petitioner, at a

house. It was not even testified to that Peti-

tioner was in the car. Nor does the evidence

disclose that there was anything improper or

illegal about Petitioner's car being at that

house or that known illegal activities were

conducted there (Tr. 44, 46, 87, 95, 110, 142).

That is the sum total of information

possessed until the actual sale was made on

a2}

September 26, 1972. It is important to also

keep in mind that Agent Catalogna had known

the informant Mays only for 4 short while be-

fore September 26, 1972 - at the longest, less

tha:. a month, at the shortest, a little over

a week (Tr. 147-145,. Agent Catalogna had

not had an opportunity to work in a close

relationship with Mays. More importantly,

Mays himself had apparently just begun such

informant work (Tr. 147-148). Agent Smith

had never worked with Mays and knew very lit-

tle about him (Tr. 46). Thus, the “infor-

mation” received might not even possess any

substantial degree of reliability.

It is submitted, therefore, that the

evidence disclosed the government possessed

no information on which it could base a reason-

able belief that Petitioner had been, or

was, engaged in the narcotics traffic. The

-24.

evidence also disclosed, therefore, that

the government possessed no information on

which to base a belief that Petitioner would

succumb to an offer to sell narcotics.

A comparison of the facts, or more

properly, the absence of facts, in retitimer's

case, to the facts, or absence of facts, in

previously-cited cases in which the courts

have found entrapment as a matter of: law

on the basis of the “reasonable suspicion”

rule warrants a finding that here, like-

wise, there was no evidence sufficient to

Support a “reasonable suspicion" that Peti-

tioner would sell narcotics.

Here as in Morei v United States, 127

F.2d 827, 834 (6th Cir. 1942) and in Morales

v United States, 260 F.2d 939, 940 (6th Cir.

1958), Petitioner had no criminal record asso-

ciated with narcotics. Here, as in Sherman,

@25<

supra at 375, as in Morales, supra at 940,

as in Morei, supra at 834, and as in United

States v Owens, 228 F.Supp. 300, 304 (D.D.C.

1964), there was no evidence that Petitioner

had been, or was, engaged in narcotics traf-

fic. Here, as in Owens, supra at 304, there

was-no evidence that retitioner had been seen

trafficking in narcotics. Here, as in Sherman,

Supra at 375, and as in Henderson v United

States, 261 F.2d ..9, 912 (Sth Cir. 1959),

no drugs were found in Petitioner's personal

possession, in his car, or in his home after

his arrest. Here, as in Sherman, supra at

375, as in Henderson, supra at 912, and as

in Owens, supra at 304, there was no substantial

evidence that Petitioner made any profit from

sales involved herein.

On the basis of these factors it is

"patently clear" (Sherman, supra at 375) that

Petitioner was induced to commit the first

-26-

=~

crime charged in the indictment on September

26, 1972, at a time when the inducing govern-

ment agents possessed no reasonable grounds

for belief that he would commit the crime.*

Such action constitutes entrapment. That

conclusion requires reversal with a remand

directing entry of a judgment of acquittal.

* To the extent the government would

argue that, regardless of the first

sale, they had reasonable grounds

to believe Petitioner would sell

narcotics on October 4, 1972, Sher-

man would reject such a notion.

The second sale was not an "“inde-

pendent act", but “part of a course

of conduct which was the product of

rd inducement." Sherman, supra at

74.

Il.

WHERE THE TESTIMONY OF AN IN-

FORMANT AT A PRIOR TRIAL WAS

LARGELY EXCULPATORY OF PETI-

TIONER, THE GOVERNMENT HAD AN

OBLIGATION, AS A MATTER OF DUE

PROCESS, TO CALL THAT INFORMER

UPON RETRIAL OF PETITIONER AND

NOT REQUIRE PETITIONER TO CALL

HIM IN ORDER TO MAKE OUT HIS

DEFENSE

While it is conceded that the general

rule does not require the government to call

an informer as a witness (e.g. United States

v Craig, 477 F.2d 129, 131 (6th Cir. 1973);

United States v Key, 371 F.2d 421, 423 (6th

Cir. 1967), there is a well-recognized ex-

ception thereto, constitutionally mandaved oy

the due process clause of the Fifth Amendment.

Where the informer's testimony would be excul-

patory, the government must call the informer.

See e.g. United States v Bryant, 461 F.2d

416, 419 (6th Cir. 1972); United States v

-28-

Ramsey, 220 F.Supp. 86 (E.D. Tenn. 1963); see

generally, United States v Walton, 411 F.2d

283, 287-289 (9th Cir. 1969); Little v United

States, 490 F.2d 686, 686-687 (8th Cir. 1974);

United States v Williams, 488 F.2d 788, 790

(10th Cir. 1973). It is to this exception

that the following argument is addressed.

A few observations crucial to considera-

tion of this issue must be stated at the out-

set. First, the nature and extent of the in-

former Mays’ testimony was known at the time

the motion to call Mays as a government wit-

ness was made, Mays had testified at length

at a prior trial which ended in a mistrial be-

cause the jury was deadlocked. Secondly, the

testimony was, perused as a whole, exculpatory

in nature as the recitation below will indicate.

Third, a summary of the pertinent testimony

adduced through Mays at the second trial

-29-

is necessary to show the knowledge possessed

by the government when it refused to call

Mays and it is also necessary to illusirste

the information possessed by the trial court

when it denied Petitioner's motion to have the

government call Mays (Tr. 141).*

Mays' testimony may be broken down into

two categories: that relative to (a) coercion

and (b) predisposition.

(a) Coercion

Mays related that he threatened people

all the time; that he roughed people up or

had “enforcers” rough people up; that he held

* No extensive argument was made, as

the record reflects, because a

prior motion had been denied after

briefing and argument.

~_"™

himself out as a “rough customer", “one not

to be dealt lightly with"; that this was the

way he conducted business (F.M.fr. 22-25).

Mays specifically recalled a direct and

clear threat against Petitioner either between

the first and second sales charged in the in-

dictment or, more probably, following the

second sale (F.M.Tr. 56-58, 106-111). When

asked by counsel for Petitioner whether he had

directly and clearly threatened Petitioner

prior to the sales charged in the indictment

in order to induce him to make the sales, Mays

replied it was possible; he wouldn't deny it,

but just could not specifically recall (F.M.Tr.

38-39). He did admit that he “put fear in”

Petitioner, but not with a gun, but with ges-

tures and the type of conversation employed,

which is the way he “always did business”

oe

(F.M.Tr. 38-39, 119-120). Further testimony

disclosed that he always “told” Petitioner

what to do; he never “asked” him to do anything

(F.M.Tr. 8-11, 12, 40-41, 42, 48-49, 50-51).

Mays admitted being motivated to make

cases for the government by obtaining leniency

on a then-pending charge (F.M.Tr. 18) and by

obtaining remuneration, $3,895 total (F,.M.Tr.

19), $300 for this case (F.M.Tr. 54). Mays

also "demanded" (F.M.Tr. 96) that Petitioner

give him some money after consummation of the

transactions charged in the indictment as well

as a quantity of narcotics for his use; Peti-

tioner complied (F.M.Tr. 12, 40-41, 53-54,

115). Mays admitted concealing receipt of

the money and the drugs, as well as his ini-

tial transaction with Petitioner, from his

superiors (F.M.Tr. 39, 51, 91) as he knew he

was not supposed to do such things. Mays also

-32-

knew that he was not authorized to threaten

anyone (F.M.Tr. 84),

(b) Predisposition

Mays characterized Petitioner as “ab-

solutely stupid” about narcotics transactions

(F.M.Tr. 59), and in the street jargon of

Mays’ traue, “square as a pool table and

twice as green” (F.M.Tr. 60). In support of

these characterizations Mays related that

Petitioner's packaging of the narcotics (tin

foil rather than plastic or cellophane) was

unusual for the amount of narcotics involved

(F.M.Tr. 36, 89). The drugs supplied by Peti-

tioner were described as "mixed jive", “very,

very low form" (F.M.Tr. 114-115), "not very

good” (F.M.Tr. 88), “lousy junk" (F.M.Tr. 115)

and finally “something I couldn't sell and

live" (F.M.Tr. 88). Selling bad quality

=

drugs could, Mays testified, create an un-

healthy situation for the seller if a refund

was not made by the seller (F.M.Tr. 9).

Mays termed “very unusual” Petitioner's

providing him with a “quarter” of heroin, worth

$200-$250 when he told him he only wanted

a “half quarter” and only paid Petitioner

$100, the “half quarter" price (F.M.Tr. 37,

72). “Highly irregular" was Petitioner's sale

of 2 “quarters” to Agent Smith on September 26,

1972 for $200 when on the same day, shortly

before, he had sold 5 “quarters” for $1,000;

Mays also characterized this transaction as

"doesn't sound like anything normal” (F.M.

Tr. 5-6).

Petitioner was “very nervous” compared

to his manner when selling clothes (F.M.Tr.

46) and “much more nervous” than persons

dealing in narcotics and “frightened*

-34-

(F.M.Tr. 47). Petitioner did not (or could

not) follow directions regarding preparation

of the narcotics (F.M.Tr. 73). Mays “told”

or “demanded” Petitioner to do the things which

he did in connection with the September and

October sales charged in the indictment

(F.M.Tr.-10-11, 39-43, 50-51). Petitioner

"didn't know what (Mays) was talking about"

when he asked for a sample (F.M.Tr. 32).

Importantly, prior to “telling” Peti-

tioner to get him some drugs, Mays had never

known or heard of Petitioner selling drugs

(F.M.Tr. 29) and had never discussed Peti-

tioner with anyone else in relation to Peti-

tioner selling drugs (F.M.Tr. 30). When first

introduced to the informant Petitioner was not

identified as a drug seller (F.M.Tr. 31),

Even after being “told” to procure drugs on one

occasion by Mays, Petitioner did not have

them (F.M.Tr. 36).

Fair play demands that the government

may not withhold the black sheep whose diffi-

cult-to-control machinations generated the

sales of which Petitioner stands convicted,

"irrespective of the good or bad faith of

the prosecution." Brady v Maryland, 373 U.S.

83, 87 (1963); Giglio v United States, 405

U.S. 150, 153 (1972).

As the Sixth Circuit has recognized in

United States v Bryant, 461 F.2d 912, 916

(6th Cir. 1972):

'The government is not ordinarily

compelled to call all witnesses

competent to testify including

special agents or informers.’

United States vee sb ay = re os

72,5 7 th Cir. , . én Ps

399 U.S. 914, 90 S.Ct. 2217, 56

L.Ed. 2d 571 (1970). Nevertheless,

there are situations when the

Governmen as natter of due

process, is required tc

wit s who the Government LE

re e eve wilt ove ex-

SuUiLp ory té RONLY «

: * Maryland, 373 U.S.

3s 94, 10 L.Ed.

24° 215 (1968) 3 United States

=36=

v. Walton, 411 F.2d 283, 288

(9th . 1969) - (Emphasis

oupiian) .

This is not an ordinary case. This is

a situation where the government knowingly

possessed information which, objectively

viewed, would, or should,have given it a

reasonable belief Mays" testimony would

have been exculpatory. Mays, a special

agent or informer, was legally an agent of

the United States government which cannot

disown his actions. Sherman v United States,

356 U.S. 369, 373-374 (1958).

In an extremely cogent opinion, Judge

Neese, in United States v Ramsey, 220 F.Supp.

86, 90 (E.D. Tenn. 1963), squarely held that,

under the circumstances of that case, the

government informer was required to be

called as a witness by the government.

affa

The opinion relied heavily upon the Supreme

Court's discussion of the nature and role of

an informer in Lopez v United States, 373

U.S. 427 (1963) and in On Lee v United States,

343 U.S. 747 (1952). Ramsey, supra at 87-89.

As Judge Neese penetratingly perceived,

the crux of Ramsey's defense -- and the crux

of most accused's entrapment defense -- was

not what occurred between himself and the ATTD

agents at the time of the transactions charged

in the indictment per se. The crux was the

relationship between the informant, French,

and Ramsey before and leading up to the

events charged in the indictment: what ap-

peals were made to induce Ramsey into the

commission of the crime.

The sole reason for the demand and

motion that the government call Mays was so

that Mays could testify regarding his dealings

-38-

—,

with Petitioner and any threats made against

Petitioner. Where an informer is utilized

to set up the transaction which gives rise

to the indictment there is always the pos-

sibility that the informant will overstep

appropriate bounds. The government simply

cannot. always control actions by informants

who are unaccompanied by governmental agents.

See e.g. the machinations of the informer set

forth in United States v Costner, 359 F.2d

969, 972 (6th Cir. 1966).

Merely focusing attention on what tran-

spired at the time of the transactions charged

in the indictment as has been done so often

by trial and appellate courts, represents a

myopic view of the manner in which “street

reality” occurs. As Chief Justice Warren

noted in his concurring opinion in Lopez v

United States, 373 U.S. 427, 446 n.2 (1963):

-39-

Where the similar defense of

entrapment has been involved,

cross-examination of the govern-

ment informer has invariably been

critical to the defense.

See

9, 71-37 7 7 Ct. 819, 820-

822. d the Gov been able

2 ae Hoe

between ad ti-

tioner ¥.% the eet pie

were consumma " e record w

never B ve reveale tne tong Series

of mee ings e er

to these sales. eo

s

zo e sare

upp ed).

Chief Justice Warren recognized that per-

haps the most crucial evidence for the defense -

in an entrapment case - is what occurred prior

to the events charged in the indictment. In-

deed the Sixth Circuit in B t, supra, in-

plicitly, if not explicitly, recognised that

the government's knowledge of improprieties

by an informant prior to sales per ge could

arise and that if so the government had a duty

to call the informer as a witness, Bryant,

-40-

o 6) ee

supra, at 916,

Here it is quite obvious why the govern-

ment adamantly refused to call Mays. His

testimony was overwhelmingly favorable to

Petitioner.* The government did not wish to

have this damning testimony come from the

mouth of its own witness. Better it should

come from a defense witness who could be ruth-

lessly cross-examined on all matters under the

sun and in other ways subtley tied by impli-

cation, to Petitioner as the “defendant's

man",

* It should be noted that Mays and

Petitioner would have had a nearly

insuperable time concocting Mays'

testimony as Mays had been in secre-

tive, protective custody since shortly

after the events charged in the in-

dictment and before Petitioner was

ee (F.M.Tr. 16, 19-20,

~41-

While it is believed that the rule,

which does not require the calling of an in-

former whose identity is disclosed prior

to trial should be re-examined, this Court

does not have to reach that issue. Under

the exception to the general rule which was

clearly enunciated in Bryant, supra, Peti-

tioner was entitled to have the government

call Mays. As the somewhat lengthy summary

of Mays' testimony at the prior trial indicates,

his testimony would tenc to be exculpatory.

First, Mays admits threatening people

as a normal way of doing business. He admits

threatening Petitioner on one occasion and

states it was possible that he threatened

Peititioner prior to any narcotics dealings

with him. Lastly, Mays admits putting Peti-

tioner "in fear" (and a reasonable reading of

his testimony would imply, keeping him “in

fear" throughout their brief relationship).

=itia

His metiration for making a case - any

case - against Petitioner was dismissal of

charges pending against him and greed, the

hope of monetary reward. Mays was paid al-

most $4,000 to assist the government, of

which approximately $300 came from work on

this case.

Most importantly Mays was a participant

in the transactions. He forced, or in his

words. “demanded” or "told", Petitioner to

give him some narcotics and money in connection

with the September transaction and some money

in connection with the October transaction.

In bluntly put words, Mays extorted money

and drugs. from Petitioner - illegal acts.

In other words, Mays possessed narcotics - an

illegal act.

This testimony viewed favorably to the

government displays an informant who cared

-43-

little for the refinements of the aw and

was out to obtain all he could get for him-

self -- leniency, fees from the government,

money and drugs extracted by pressure from

Petitioner.

Such conduct, admitted by the informant

in open court, should surely have given some

pause to government officials.*

* See e.g. the reasons for voluntary

dismissal of charges against two

defendants when the government be-

came apprised of the improper ac-

tivities of informer French -- whose

activities also played a part in the

Ramsey case, discussed, supra. =nited

States v Con r, 359 F. 9»

ir. - It is submitted

that such conduct -- which con-

cededly governmental officials knew

nothing about prior to commencement

of the second trial -- is beyond

the pale of conduct sanctionable by

the courts. Government counsel

should have entered a voluntary

dismissal of the charges.

aa on dad

There was absolutely no justification

for refusing to place this informant, Mays,

on the stand. The government knew what Mays’

testimony had been and could be expected to

be. The government knew Petitioner's prin-

cipal defense was entrapment based upon

threats and coercion by Mays. This was not a

case where Petitioner was “fishing” at the

time of trial. This was not a case where

Petitioner was hoping “something would develop"

which would help him. Both government counsel

and the trial court had heard Mays’ testimony.

They could not have failed to understand its

import; its impact could not have been lost

on reasonably intelligent men.

The government would argue that Mays

was produced for trial, although not as a

government witness, and thus defense counsel

could have called Mays as a defense witness as

he had done at the second trial.

-45-

Such a bootstrap argument is devoid of

merit. As Chief Justice Warren aptly ob-

served in Lopez, supra, at 445-446, merely

allowing the defense to call such an informer

as a witness, even as a hostile witness, is

insufficient. First, he is associated in

the jury's mind as the “defendant's man”

with all of the implications that creates.

The witness is open to impeachment on collateral

matters. Deprivation of the ability to cross-

examine “may be usea to conceal substantial

factual and legal issues concerning the rights

of the accused and the administration of

criminal justice,” Id. at 446. See also the

Chief Justice's additional cogent discussion

of the role cross-examination of the informer

plays in defense strategy. Id. at S4+4-445,

Counsel for Petitioner did not call

Mays at the third trial even though he was

-46-

Cae eee eee

available and would have given the same

testimony as at the pricr trial. Ccunsel

believed justified in relying upon the clear

holding in Bryant, supra. This strategy,

despite the favorable substance of the testi-

mony, was furthered by the impressions left

by Mays with the jurors at the second trial.

Counsel for Petitioner and counsel for Respon-

dent were informed by several jurors that they

believed that, in substance, Mays and Peti-°

tioner, who had both been defense witnesses,

were “in it together". Thus Mays was viewed

as the “defense's man" - precisely the result

warned against by Chief Justice Warren.

It does not require a Ph.D. in psychology

to ascertain that the same testimony from the

mouth of the same witness may be viewed dif-

ferently by a jury depending upon which side

calls hin.

-47-

We submit it is indefensible and repre-

hensible for the government to utilize a

person such as Mays to "make the case", then

act and pretend he doesn't exist when it comes

time to prosecute one of his “victims” -

despite the informant's admitted infractions

of state and federal laws in “making the

case".

Is it fair for the government to attempt

to hide the illegal actions of an informant

by not calling him as a witness?

Has due process been afforded Peti-

tioner when the government knowingly with-

holds from the jury - in the case in chief -

evidence which tends to exculpate Petitioner?

We submit the answer to both querries

is "No".

Under such circumstances, the govern-

ment's burden was and is clear. It must call

-48-

a witness whose testimony would be exculpa-

tory. United States v Bryant, 461 F.2d 912,

916 (6th Cir. 1972). See also United States

v Walton, 411 F.2d 283, 287-289 (9th Cir.

1969); Little v United States, 490 F.2d

686, 686-687 (8th Cir. 1974); United States

v Williams, 488 F.za 788, 790 (10th Cir.

1973) each of which opined, albeit somewhat

obliquely, that where an informant's testi-

mony would be exculpatory or constitute

material evidence under the rationale of

Brady v Maryland, 373 U.S. 83 (1968), the

government would have to produce the infor-

mant as a witness in order to comply with

the demands of due process. See also United

States v Clarke, 220 F.Supp. 905, 908 (E.D.

Pa. 1963) wherein Judge Kraft noted, in grant-

ing a new trial because of the government's

failure simply to produce an informant, that

-49-

if he had been available in court, that he

"might well have ordered the Government

to call him, as would have been our right. 23

C.JeS. Criminal Law Sec. 1017, p. 1097."

Compare United States v Curry, 284 F.Supp. 458,

468-470 (N.D.I11. 1968) in which Clarke, supra,

and Ramsey, supra, were quoted with approval

in granting a motion for judgment of acquittal

because of failure to produce an informant

coupled with delay in bringing the case, there-

by causing the testimony of the informer to

be lost.

Here Petitioner did all that was possi-

ble to try and have Mays called as a govern-

ment witness. Compare United States v Fancutt,

491 F,2d 312, 314 (10th Cir. 1974). Here, un-

like in Little v United States, 490 F.2d

686, 686-687 (8th Cir. 1974), the govern-

ment did possess material information which

it withheld from the jury and that testimony

-50-

would have clearly been helpful to the defense

and “impeached the credibility of the govern-

ment's case". Here as in United States v White,

324 F.2d 814, 816 (2nd Cir. 1963), the infor-

mant's testimony “might have tipped the scales

in" Petitioner's favor,

This, then, is an appropriate case

(United States v Williams, 488 F.2d 788, 790

(10th Cir. 1973)), a case in which “circum-

stances require" (United States v Craig, 477

F.2d 129, 131 (6th Cir. 1973)), that the govern-

ment be ordered to call informer Mays as a

witness.

@$i<

CONCLUSION

For the reasons stated, it is requested

that the Petition for Writ of Certiorari to

the United States Court of Appeals for the

Sixth Circuit be granted.

Dated: August 12, 1975 Respectfully submitted,

J.« RUSSELL HUGHES, SR.

J. THOMAS CARROLL, JR.

Counsel for Petitioner

207 Main Street

Harrisville, Michigan

48740

1-517-724-6822

@§2~

NO. 75-1080

~

UNITED STATES couRT or appeas = | L = D

FOR THE SIXTH CIRCUIT

Jun 59 1875

UNITED STATES © 4SRICA

Plaintiff-Appellee =: JOHN P. HEHMAN, Clerk

v. 3 ORDER

GUS JOHN SKARTSIVAS

Defendant-Appellant :

Before: WEICK, EDWARDS and PECK, Circuit Judges.

The Court having concluded, on the record on appeal

and on the briefs and oral arguments of counsel for the parties,

that defendant-appellant did not establish the defense of entrap-

ment, that this Court's opinion in United States v. Bryant, 461

F.2d 912 (1972), did not require the calling of an informant by

the plaintiff-appellee as its witness, and that the receipt in

evidence of an admission of the appellant against his interests

was not error,

IT IS ORDERED that the judgment of the district court

be anc it hereby is affirmed.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

tree Welle

er

Chief Deputy

Jaly 21, 1975

7. Thomas Carrell, Jr.