Petition — Dallal v. United States

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JAN 12-1976

In The | Mic

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Supreme Court of the United States

October Term, 1975

No. €5-1U020

PAULA DALLAL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

KENNETH KAPLAN

Attorney for Petitioner

666 Fifth Avenue

New York, New York 10019

(212) 581-2375

(88°37)

LUTZ APPELLATE PRINTERS. INC

baw and binancial Prontong

South River, NJ New York NY Philadelphia. Pa Washington. 1) ¢

(201) 257-6850 (212) S63-2121 (218) S@3-SSR7 (202) 7N3-72KS

TABLE OF CONTENTS

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Reasons for Granting the Writ:

The Court's instructions to the jury on the subject of

entrapment was fatally defective in that it failed to

properly place the burden on the government to disprove

the whole defense: thus depriving the petitioner of a fair

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TABLE OF CITATIONS

Cases Cited:

Government of the Virgin Islands v. Cruz, 478 F.2d 71.

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Contents Contents

Page Page

S s Cited:

Kadis v. United States. 373 F.2d 370 (Ist Cir. 1967) ........ 6 —

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Lucas Vv. United States. 355 F.2d 245 (10th Cir. 1966) ...... 6 . $ ")

: Te a a eee SOON ESS EEE TEN SYS 2

Notaro v. United States. 363 F.2d 169 (9th Cir. 1966) $

kd A ee Candee aden e ene se ee eeeehenentaene 6 ie MO os ageuntesestsneesevenies y)

Robinson v. United States, 366 F.2d 575 (10th Cir. 1966) 6 BE TG, Fe nk cwcccenvdaverenseecocsssesesesgeuaceses 2

: . APPENDIX

United States v. Berger, 433 F.2d 680 (2d Cir. 1970), cert.

ied, So gt eee a a ee ee ale a a li ‘

denied, 401 L 62 ~¢ Appendix A — Judgment of Court of Appeals ............ la

United States v. Braver, 450 F.2d 799 (2d Cir. 1971), cert.

I ub ewewes 5

United States v. Cohen, 431 F.2d 830 (2d Cir. 1970) ....... 6

United States v. DeVore, 423 F.2d 1069 (4th Cir. 1970)

ied Mie cee Bie ee a ea eee babe de oe eee ee Oe bees Oba aaee 6

United States v. Riley. 363 F.2d 955 (2d Cir. 1966) ........ 6

United States v. Silver, 457 F.2d 1217 (3d Cir. 1972)

cder ected esd etdede aves ewe slebeutsted caves Guedes 7

In The

Supreme Court of the United States

o—

October Term, 1975

No.

PAUL DALLAL,

Petitioner,

vS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

The petitioner, Paula Dallal, prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the Second Circuit entered on December 19, 1975,

affirming petitioner's conviction in the United States District

Court for the Eastern District of New York (Appendix A, infra,

la).

OPINIONS BELOW

No opinion was rendered by the Court of Appeals or by the

District Court.

2

JURISDICTION

The jurisdiction of the Court is invoked under provisions of

28 U.S.C. Section 1254(1).

STATUTES INVOLVED

The indictment upon which petitioner was tried and

convicted alleged violations of 18 U.S.C. §2 and 21 U.S.C. §§

841(a)(1), 846.

QUESTION PRESENTED

Was the court’s charge on the issue of entrapment defective

and did it deprive the petitioner of a fair determination of a

crucial issue in the case?

STATEMENT

Petitioner’s conviction in the United States District Court

for the Eastern District of New York for distribution and

conspiracy to distribute cocaine hydrochloride was affirmed by

the Court of Appeals for the Second Circuit, without opinion,

Petitioner was charged in Count | of the indictment with

distribution of approximately three-quarters of an ounce of

cocaine hydrochloride, in Count 2 with distribution of

approximately one ounce of cocaine hydrochloride and in Count

4 with conspiracy to distribute quantities of cocaine

hydrochloride.

3

Alfred Cavuto, a special agent with the Drug Enforcement

Administration testified that a government undercover

informant was given $800 to introduce him (Cavuto) to the

petitioner, who in turn introduced him to one O’Brien from

whom drug purchases were made. He called and spoke to the

petitioner twelve or thirteen times importuning her to aid him in

purchasing cocaine.

Petitioner testified she was 23 years of age and never before

in trouble; that the government through its agent Cavutc and

informant Jeff initiated an unremitting barrage of calls and visits

to enmesh her in the commission of a crime. Jeff called her

approximately twenty times and visited her apartment eight times

cajoling her to get cocaine for his friend Al (Cavuto). The

informant Jeff relentlessly continued to entreat and implore her

to get cocaine for his “friend” notwithstanding that she would

tell him that she was unable to do it. He called her four and five

times a day. She testified that the calls were so frequent and the

demands so incessant that in order to avoid further contact she

pretended she had to visit a sick father in Japan, and that

“the only way I could think they would leave me alone was

if | told them I was going to Japan....” She continued,

“...Can’t you just leave me alone... .”

She instructed her roommate to tell him that she was out.

Similarly, Cavuto, in this attempt to have petitioner affect an

introduction with the seller O’Brien spoke to her fourteen or

fifteen times.

She further testified that she uses barbituates; that she dealt

with the seller O’Brien once before and offered to sell agent

Cavuto marijuana and amphetamines.

4 5

commit the crime. On this issue the government

has the burden of proof and it must prove it

beyond a reasonable doubt... .”

REASON FOR GRANTING THE WRIT

The Court's instructions to the jury on the subject of

entrapment was fatally defective in that it failed to properly )

place the burden on the government to disprove the whole )

defense; thus depriving the petitioner of a fair trial.

The Court in the case United States v. Braver, 450 F.2d 799

(2d Cir. 1971), cert. denied, 405 U.S. 1064 (1972), approved the

language in United States v. Berger, 433 F.2d 680, 684 (2d Cir.

1970), cert. denied, 401 U.S. 962, that a defendant had to:

Since the proof indicated that the government initiated the

events charged in the indictment, the petitioner raised the

defense of entrapment on that subject, the court incorrectly

charged the jury over counsel's objection. Thus:

“... The question of entrapment involves two

issues. The first issue is whether the defendant

was ied or induced to commit the crime by

anyone acting for the government. That is, did

the government initiate the criminal transaction?

On this issue the defendant has the burden of

proof. He does not have to prove it beyond a

reasonable doubt but he must prove it by a fair

preponderance more likely than not that the

government initiated the criminal transaction

involved in this case. If you do not find such

inducement then there was no entrapment, but if

you do find such inducement then you must

consider the second issue.

The second issue is whether the defendant

was ready and willing to commit the crime

without persuasion. This is sometimes expressed

as an issue of whether he had a propensity to

“{A]dduce some evidence that a government

agent by initiating the illegal conduct himseif

induced the defendant to commit the offense. If

you find that the defendant... has adduced

such evidence then the government must prove

beyond a reasonable doubt that the inducement

was not the cause of the crime, that is, that the

defendant .. . was ready and willing to commit

the offense.”

The Court in Braver continued on pp. 804 and 805:

“In light of all of this, we suggest that it

would be preferable for the district courts of this

circuit to use an entrapment charge that does not

give to the jury two ultimate factual issues to

decide on two different burdens of persuasion

imposed upon two different parties. While we do

not specifically define this preferable charge, we

suggest that there be no reference to ‘burden’ or

‘burden of proof or ‘preponderance of evidence’

in describing a defendant’s obligation. In

t 7

explaining the burden of proof on entrapment, it

will be enough to tell the jury that if it finds some

In United States v. Watson, 480 F.2d 504 (3rd Cir. 1973)

the Court held at pages 510 and 511:

evidence of government initiation of the illegal

conduct, the Government has to prove beyond a

reasonable doubt that the defendant was ready

and willing to commit the crime. The language

quoted from United States v. Berger, supra,

would obviously be appropriate.”

Notwithstanding this clear instruction, the trial judge

instructed the jury that on the issue of the government's

initiation of the criminal transaction, “.. . the defendant has the

burden of proof...” and “...must prove it by a fair

preponderance of the evidence.”

Other circuits have indicated their preference for the unitary

charge, that is. they have approved entrapment instructions that

do not separate the issues of inducement and propensity and do

not impose a burden on the defendant to prove any element of —

the entrapment defense by either a “burden of proof” or

“preponderance.”

“The issues having appeared, it becomes the prosecution's

burden to establish beyond a reasonable doubt that the accused

was not entrapped into the commission of the offense,” Notaro v.

United States, 363 F.2d 169 (9th Cir. 1966). See Kadis v. United

States, 373 F.2d 370 (ist Cir. 1967); United States v. Cohen, 431

F.2d 830, 832 (2d Cir. 1970); United States v. Riley, 363 F.2d

955, 958-959 (2d Cir. 1966): United States v. DeVore, 423 F.2d

1069 (4th Cir. 1970); Robinson v. United States, 366 F.2d 575

(10th Cir. 1966); Lucas v. United States, 355 F.2d 245 (10th Cir.

1966).

“This court has never had to directly face the

question of whether the giving of the bifurcated

charge constitutes error. However, we have

indicated our preference for a unitary charge. In

Uniied States v. Silver, 457 F.2d 1217 (3d Cir.

1972), we called it a ‘settled principle’ that ‘when

the defense of entrapment is properly raised the

burden of proof is on the Government to prove

beyond a reasonable doubt that the defendant

was not entrapped’” 457 F.2d at 1220.

“Furthermore, in Government of the Virgin

Islands v. Cruz, 478 F.2d 712 (3d Cir. 1973),

decided after the district court decision in this

case, we approved of an instruction which places

the burden on the Government to disprove the

whole defense beyond a reasonable doubt.

Under the unitary approach we require,

inducement therefore enters as an element of

predisposition which the Government must

disprove rather than as an independent element

which the defendant must prove.

Pragmatic considerations also inhibit us

from approving an entrapment charge involving

two elements, with different burdens of proof on

different parties for each element. ‘Ve see no

8

valid justifications for imposing such a confused

standard on a jury in a criminal case for a

judicially created defense which, as pointed out

above. involves essentially a single element.

Indeed. we are supported in this view by the

Government brief in this case which concedes

that ‘it must fairly be said that the initial

treatment in the charge of the entrapment issue

could generate confusion on the part of the

jury.

The trial court’s error in charging the jury deprived the

petitioner of a fair determination of the issues.

CONCLUSION

It is respectfully submitted that the petition for a writ of

certiorari should be granted.

s Kenneth Kaplan

Attorney for Petitioner

APPENDIX A

JUDGMENT OF COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the 19th day of

December, one thousand nine hundred and seventy-five.

Present:

HON. PAUL R. HAYS

HON. WILLIAM H. TIMBERS

HON. MURRAY I. GURFEIN

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee,

CARLOS FAYAD and PAULA DALLAL,

Appellants.

2a

Judgment of Court of Appeals

75-1343

Appeal trom the United States District Court for the United

States District Court for the Eastern District of New York, and

was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered. adjudged. and decreed that the judgments of said

District Court be and it hereby is affirmed. The mandate shall

issue forthwith.

s Paul R. Hays

PAUL R. HAYS

s Willham H. Timbers

WILLIAM H. TIMBERS

s Murray |. Gurfein

MURRAY I. GURFEIN

Circuit Judges.