Petition — McKitty v. United States

| Supreme Court, U. &

*¥iLED

FEB 12 1976

MOWAEL RODAK, JR., CLERK |

eee a

IN THE

Supreme Court of the United States

Octosper Term, 1975. .

No. 75-1145

ROOSEVELT McKITTY,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Raymonp A. Brown,

Counsel for Petitioner,

26 Journal Square

Jersey City, New Jersey 07306.

—

Adams Press Corp., 11 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

PAGE

Rn ee a eae 1

JURISDICTION .....---.-0--c-e-e0+0- a

I TI iciesscticiinscccsnnestncntniirccnnttipstininsnaiionianiteniinnan 2

STATUTORY PROVISIONS INVOLVED ......2.-...00--ceeceecceceeseoeeesee 2

STATEMENT OF THE CASE ....... scenliiediaihaibioaleaba 2

REASONS FOR GRANTING THE WRIT .........-22...s0:-ecseseeeeeeeeeee 7

CoNCLUSION ...........- - ; 12

APPENDIX:

A—Judgment Order of the United States Court

of Appeals ............. saliahinedaieneidaaneiinemenptecntis la

B—Statutory Provisions Involved .................-..... 4a

Cases Cited

Sherman v. United States, 356 U. 8. 369 (1958) _....... 8, 9

Sorrells v. United States, 287 U. S. 441 (1932)_.........8, 9, 11

United States v. Russell, 411 U. 8. 429 (1973)... 8

Statutes Cited

18 U.S.C,

II Ty sescccsesssinsiieslbuesieimieepsgutieisianieacieniiaienppiiticisiaiiiis 2

21 U.S.C.:

| eee ea eae re

BI MY GE OD saceccans ecient caaiinlacinenaiaibictisinaeonmanne

28 U.S.C.:

Se : |) eer rrener ee Ne RP 2

IN THE

Suprene Court of the United States

Ocrosper Term, 1975.

No.

>

ROOSEVELT McKITTY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The Petitioner, Roosevelt MeKitty, respectfully prays

that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Third Cir-

cuit, entered in the above case on January 14, 1976.

Opinion Below

The opinion of the Cireuit Court of Appeals appears

in the appendix annexed hereto, is as yet unreported.

Jurisdiction

The judgment of the Court of Appeals was entered on

Janus ~y 14, 1976. The jurisdiction of this court is in-

voked under 28 U.S.C. 1254 (1). (See Appendix A)

Question Presented

Whether the evidence established that petitioner was

entrapped as a matter of law on the crimes charged in

the indictments.

Statutory Provisions Involved

Statutory provisions involved are 21 U.S.C. Seetion

841 (a) (1) (Count T) and 21 U.S.C. Sections 952 (a)

(2) 960 and 18 U.S.C. Section 2 (Count TT) and 21 U.S.C.

Section 841 (a) (1) and 18 U.S.C. Section 2. (Count ITT)

(See Appendix B)

Statement of the Case

A three count indictment was filed against petitioner

and Isaae B. Bravo, charging each with conspiracy to

possess marijuana with intent to distribute it in violation

of 21 U.S.C. Sections 841 (a) (1) (Cownt T) importing

marijuana in violation of 21 U.S.C. Section 952 (a) (2),

960 and 18 U.S.C. Section 2 (Count IT) and possessing

marijuana with intent to distribute it in violation of 21

om Section S41 (a) (1) and 18 U.S.C. Seetion 2 (Count

The jury returned guilty verdicts against Petitioner on

each count and against Bravo on Count TI. Petitioner

was. sentenced for three concurrent five year custodial

terms, each to be followed by a two year special parole

term. On appeal the Cireuit Court of Appeals affirmed

the judgment of conviction against the Petitioner.

Special Agent Crane testified he met Petitioner for the

first time at the Linden Airport in Linden, New Jersey

on August 17, 1974, at about 1:00 P.M. He was intro-

duced to Petitioner by Id Keegan. He had a short con-

versation with Petitioner and stated “Mr. MeckKitty was

not particularly interested in talking to me directly. I

don’t think he anticipated meeting me. I was introduced

to MeKitty as someone who could accomplish cireumvent-

ing customs at Newark Airport.” (iTr. 36-6 to 13). Agent

Crane further stated that he bad accompanied Keegan to

the airport “with the intention and purpose of meeting

Mr. MeKitty to talk to him about a possible importation

of marijuana” (1Tr. 35-5 to 7). Agent Crane also indi-

cated that there was a discussion of the amount of finan-

cial compensation that he was to receive for performing

his service. In response to the question on direct ex-

amination:

“Was there any discussion on how these goods

should be shipped?”

Agent Crane answered:

“Yes, there was. I told him that I think the easiest

way to do it would be if they were shipped as his

personal effects.” (1Tr. 37-17 to 21).

Agent Crane had further contact with petitioner on the

evening of August 22, 1974 when he met with the defend-

ant at the Broker Restaurant in Newark. The meeting

had been arranged by Id Keegan (17Tr. 41-12 to 16).

+

During the course of the meeting, petitioner told him that

a shipment was in fact due to arrive at Newark Airport

at 7:00 P.M. that evening (1Tr. 43-3 to 6). Crane re-

sponded by requesting that MeKitty supply him with an

airway bill number on the shipment. According to Crane,

MeKitty responded, that he did not have the number, but

said that if Crane “would call him the next morning, that

he would supply it” (1Tr. 44-2'to 9). At this time, Agent

Crane went back to his office and met with other law en-

forcement agents. He then went to Newark Airport and

located the shipment in question, which was addressed to

a Mr. George Williams, in Newark, New Jersey (1Tr.

53-20). At this time, the Government agents opened the

erate (G-1) and verified the fact that there appeared to

be marijuana inside (1Tr. 55-11 to 13).

Agent Crane testified that after inspecting the crate

with the contraband marijuana, he met with Customs

agents and other law enforcement personnel to establish

plans for delivery of the crate to the Shell station which

had been picked as his rendezvous point with petitioner

(2Tr. 6-2 to 7). The crate was then put into a blue van

and was taken to a bowling alley parking lot near the

Shell station rendezvous point. <A surveillance system

was also set up around the Shell station (2Tr. 7-5 to 21 ).

Agent Crane then went to the Shell station to meet peti-

tioner and to see if everything was in order. Petitioner

indicated at that time that evervthing was all right. How-

ever, according to Agent Crane, Petitioner's truck had

not yet arrived. Eventually however, the red van did

arrive (2Tr. 26-2), driven by a person identified by Agent

Crane as Isaac B. Bravo (2Tr. 27-15 to 16) Oe

‘At this point, one of the officers asked Bravo to position

his van next to the van containing the erate so that the

rear door of the vans were facing each other (2Tr. 28-5).

5

Agent Crane also testified on direct examination that

Bravo then “took a screwdriver from his van, pried the

crate open, looked inside, closed the crate again, banged

the nails back down with a screwdriver and put the secrew-

driver back in the truck.” (2Tr. 29-1 to 4). Agent Crane

indicated that at this juncture Bravo tried to move the

crate, but that he was stopped by Crane who insisted upon

having his money before the crate was transferred from

one van to another. In response to Crane’s requst, Bravo

went to fetch MeKitty (2Tr. 30-25). MeKitty then re-

turned with the money and along with Agent Crane he'ped

Bravo transfer the crate. Once the truck was loaded,

Bravo drove away. Eventually, after the petitioner had

been apprehended, Crane took what he considered to be

a representative sample of contraband from the crate and

sent it to the laboratory for analysis (2Tr. 42-11 to 15).

On cross-examination, Agent Crane conceded that he

had known Ed Keegan prior to his August 17th meeting

with the petitioner MecKitty (2Tr. 45-9). Agent Crane

also indicated that Keegan had been referred to the D.E.A.

by the Office of the Union County Prosecutor. Agent

Crane indicated that he and Special Agent Kennedy,

Crane’s Group Supervisor, had met with Keegan in the

week prior to August 17th for about 45 minutes. At this

time Keegan had indicated that he had information con-

cerning narcotics importation (2Tr. 55-1 to 11). Crane

also stated that he and Special Agent Kennedy met with

Keegan at the Coachman Inn immediately prior to pre-

ceeding to the airport to meet with McKitty on the 17th

(2Tr. 64-31).

Agent Crane left McKitty on August 17th with the un-

derstanding that he and MeKitty would contact each other

through Ed. Keegan (2Tr. 86-21 to 25). Agent Crane

stated that a thorough investigation of Mr. MeKitty’s

6

background indicated that he had never been involved in

any kind of similar operation (2Tr. 106-2 to 12).

Officer Joseph Dugan of the Roselle Police Department

testified that he had been assigned on the morning of Au-

gust 23rd to follow petitioner. Pursuant to his instrue-

tions, he followed McKitty into Patty’s Taven in Eliza-

beth (3Tr. 180-24). At approximately 9:20 A.M., a phone

rang in a both in the bar and the bartender called for

“Rocky.” Petitioner identified himself as Rocky and an-

swered the phone (3Tr. 181-4 to 9). Shortly after receiy-

ing this call MeKitty made another call and talked on

the telephone for about 15 minutes. Thereafter, he went

outside of the tavern and talked to a man in a Thunder-

bird. After departing the tavern, Dugan testified that

he briefly followed MeKitty. However, he eventually

returned to the vicinity of Patty's Tavern where he man-

aged to find a vantage point from which he could observe

the entire transaction at the Shell station (3Tr. 185-2 to

16).

Petitioner testified he was introduced to Agent Crane

through Ed Keegan (3Tr. 236-15). He had met Keegan

through a person named Gerald Williams (2Tr. 239-15

to 21). Gerald Williams had called MeKitty on behalf

of Keegan asked him to supply a source for marijuana,

to which request MeKitty responded “no” (3Tr. 240-3 to

8). Williams indicated to MeKitty that Keegan was on

the verge of bankruptey and needed the money to save

his business. According to MeKitty’s testimony, Williams

called him more than once in an attempt to persuade

MeKitty to cooperate (3Tr. 243-14 to 16). MeKitty re-

peatedly refused (3Tr. 243-20). Eventually Williams in-

troduced MceKitty to a man named Joe Taylor, who was

represented to petitioner as Keegan's broker (3Tr, 244-

14). Taylor also emphasized the extent of Keegan's need

for money (3Tr. 245-1 to 3). Eventually MeKitty did

meet Keegan and Keegan attempted to introduce MeKitty

to Chuck who worked for Eastern Airlines (8Tr. 258-1

to 16). MeKitty objected to having an interview take

place. According to McKitty, Keegan brought “Chuck”

to MekKitty’s hotel room where Chuck said, “well Rocky,

I'm Chuck. IT work at Eastern Airlines. I am responsible

for the cargo department. Mr. Keegan told me you want

to import some marijuana” (38Tr. 258-22 to 25).

Mckitty also testified that Keegan had told him that

he and his pilot Sam had been enggaed in similar enter-

prises for a while (4Tr. 14-8 to 9). MeKitty testified that

during the afternoon of the transaction, he spent virtually

the entire day looking for Mr. Keegan because he thought

of this essentially as Keegan's transaction( 4Tr. 39).

Bravo testified that MeKitty called on August 22nd

and asked him to rent a van (4Tr. 76-4 to 8). Melkitty

asked him to have it available and called to take it to the

Shell station (4Tr. 79-24). On the question of his knowl-

edge of the contents of the box, Bravo testified that he

did not know what was in it (4Tr. 844 to 13). Bravo

also testified that MeKitty told him that after the trans-

action, he was to take the van and park it near his home,

which he did (4Tr. 82-18 to 25).

Reasons for Granting the Writ

The Court of Appeals has rendered a decision in con-

flict with the applicable decisions of this Court.

“To determine whether entrapment has been established,

a line must be drawn between the trap for the unwary

8

innocent and the trap for the unwary criminal”. Sherman

v. United States, 356 U.S. 369, 372 (1958). As stated in

United States v. Russell, 411 U. S. 429 (1973) the thrust

of the entrapment defense in Sorrells v. United States,

287 U. S. 441 (1932) was held by Chief Justice Hughes,

“to focus on the intent or predisposition of the defendant

to commit the crime”.

The problem presented by entrapment has had a wealth

of consideration by the courts, first emphasized compre-

hensively in the classic case of Sorrells vy. United States,

supra. The views of Chief Justice Hughes, speaking for

the majority and Justice Roberts, speaking for the minor-

ity, can be summarized as follows: The difference in the

views of the majority and the concurring opinions is that

in the former the inquiry focuses on the predisposition

of the defendant, whereas in the latter, the inquiry focuses

on whether a Government official instigated the crime.”

Ordinarily, entrapment is a question of fact, and in

jury cases must be submitted to the jury. In the Sorrelis

ease, supra, the court remanded the case to the District

Court for retrial with instructions to submit the issue to

the jury. It may become a question of law when the facts

are undisputed. Sherman vy. United States, 356 U.S. 369

(1958).

It is the contention of the petitioner that entrapment

existed as a matter of law and that the indictment against

him should have been dismissed and petitioner acquitted

at the end of the Government’s case.

The reasonable inferences drawn from the testimony of

the Government’s witnesses, resolving disputed points in

favor of the Government, support the contention that the

crime charged in the three counts on the indictment orig-

inated with Ed Keegan and was the result of the “crea-

9

tive activity” of Keegan and Special Agent Crane of the

Drug Enforcement Administration. Agent Crane testified

that Id Keegan was a resource of the Union County

Prosecutor's office who had admitted to having previously

engaged in plans “to bring something in from Jamaica”

(2Tr. 53-1 to 5). Crane and his Supervisor, Special

Agent Kennedy met with Keegan prior to August 17th to

discuss his potential involvement in the efforts to appre-

hend petitioner. On the day of his first meeting with peti-

tioner, Crane and Special Agent Kennedy had met with

Keegan before the meeting with petitioner to discuss in

greater detail the upcoming operation. Crane testified

that it was Keegan who set up the meeting on August

17th and the subsequent meeting on August 22 between

the Agent and petitioner. When Crane left petitioner on

the 17th, it was understood that Crane and _ petitioner

would contact each other through Keegan. It, therefore,

seems clear that the agreement, plans and effectuation of

the criminal act of importing marijuana originated with

Keegan and Agent Crane, acting on behalf of the Gov-

ernment. Both the Sherman and Sorrrell decisions sup-

port the proposition that the acts of the informer or

other “special employee” may be imputed to the Govern-

ment for the purposes of an entrapment analysis.

It is also submitted that the acts for which the peti-

tioner was convicted under Counts IT and III were the

result of creative activity on the parts of Agent Crane

and Ed Keegan. Agent Crane testified that the crate con-

taining the marijuana had already been seized and was

in the custody of law enforcement officers at the time it

was taken to the Shell gas station by these very same

agents in order to be transferred to petitioner. The ease

with which the agents seized the shipment is at least in

part attributable to the fact that the goods were shipped

as personal effects, pursuant to a suggestion made by

10

Agent Crane to petitioner as the most effective method

for shipping contraband, such as marijuana. The conver-

sation that took place at the August 17th meeting between

petitioner and Agent Crane is indicative of the extent to

which the particulars of this operation were supplied by

agents of the Government.

Another particular which was important to the opera-

tion was the supplying of the airway bill number. The

night before the shipment was to have arrived, Crane

asked petitioner tor the airway bill number so that he

might more easily locate the shipment. Petitioner indi-

cated that he did not have the number, but that he would

be able to supply it to Crane if Crane would eall him the

following morning (1Tr. 35-5 to 7). The evidence that

petitioner did not have the crucial way-bill number, but

had to obtain it from someone else was reinforced by

Officer Joseph Dugan of the Roselle Police Department.

Dugan testified that he had been assigned to follow peti-

tioner on the morning of August 23rd. Ile followed peti-

tioner to a tavern in Elizabeth where petitioner received

a phone call at 9:20 am. Shortly thereafter petitioner

made another eall at the same time that Agent Crane

testified that he had spoken to petitioner. This testimony

is particularly interesting when combined with the testi-

mony of petitioner, who indicated that the received the

way-bill number from one of Keegan’s henchmen.

The Government witness admitted that it delivered the

marijuana to petitioner and then charged him with pos-

sion and intent to distribute. In effect, the Government

supplied the defendant with the contraband which defend-

ant was charged with possessing. This behavior clearly

violates the spirit of those policies which brought about

the entrapment defense.

11

Agent Crane conceded that his investigation had not re-

vealed any evidence of previous activities in marijuana,

possession or sale, on the part of petitioner (2Tr. 106-2

to 12). This admission had a two-fold significance. It is,

in and of itself, evidence which would support the infer-

ence that petitioner was not predisposed to commit the

erimes charged and had no history of involvement with

these kinds of crimes. It is also important in that it sug-

gests the reluctance petitioner displayed to talk to Agent

Crane (1Tr. 36-6) was not the reluctance of one ac-

quainted with the narcotie trade. In fact, the inference is

compelling that the hesitancy on petitioner’s part was

beeause of his lack of desire to engage in these activities.

Further evidence supporting the inference that peti-

tioner reluctantly yielded to repeated requests to become

involved in this criminal venture can be found in peti-

.tioner’s own testimony. Ile stated that he had been intro-

duced to Agent Crane through Ed Keegan. He also indi-

cated that he at several times rejected the solicitations

of Keegan’s assistant, Gerald Williams and that he only

agreed to become involved because he had been convineed

that Keegan needed funds to stave off bankruptey (3Tr.

243-14).

What the undisputed evidence shows it that petitioner

was an industrious, innocent, law-abiding man with no

previous disposition or intention to commit the offense;

that the criminal design of committing the offense orig-

inated with the government officers; that the officers im-

planted in the mind of petitioner the disposition to commit

the alleged offense for the purpose of prosecuting him

for the commission of the crime and, by repeated, per-

sistent and incessant solicitations, so induced him and sue-

ceeded in accomplishing their purpose. The foregoing is

held in Sorrells v. United States, supra, to be entrapment.

12

It is respectfully submitted that as a matter of law

petitioner was entrapped and accordingly, the judgment

heretofore entered should be reversed, the sentence set

aside, and a judgment be entered dismissing the case.

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment of the Court of Appeals for

the Third Circuit.

Raymonp A. Brown

Attorney for Petitioner

- ~<a

APPENDIX A

Judgment Order of the United States

Court of Appeals

UNITED STATES COURT OF APPEALS

For tue Tuirp Circuir

Nos. 75-1830 & 75-1831

+

Unirep Stares or AMERICA

v.

Dion L. SANrorp

RooseveLt McKirry

Tsaac Bruce Bravo

Roosevelt MewWitty,

Appetiant in No. 75-1830

Isaac Bruce Bravo,

Appellant in No, 75-1831

(D. C. Crim. No. 74-366)

AppreaL From THE Unrren Sratres District Courr

FOR THE Disrricr or New JERSEY

> -—

[la]

Za

Appendix A

Submitted under 3rd Cir. Rule 12(6) January 8, 1976

Refore:

Van Dusen, Apams and WEIs,

Circuit Judges

Raymond M. Brown, Esq.,

Brown & Vogelman, Newark, New Jersey,

Attorneys for Appellants

Jonathan L. Goldstein, U. S. Attorney;

John J. Barry, Assistant U. S. Attorney;

Brian D. Burns, Assistant U. S. Attorney;

Newark, New Jersey,

Attorneys for Appellee

JUDGMENT ORDER

After consideration of defendants’ respective conten-

tions, namely:

(1) defendant McKitty was entrapped as a mat-

ter of law;* and

'The evidence was sufficient to permit the jury to conclude that

the defendant was predisposed to commit the crimes of which he was

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

e g., Trial Transcript, Vol. III, at 3.239-40; 3.251-54 (D. N. J.,

Crim. No. 74-366).

3a

Appendix A

(2) the evidence was insufficient to support a ver-

dict of guilty against defendant Bravo;*

It is ADJUDGED AND oRDERED that the judgment of the

district court be and is hereby affirmed.

By tHe Court:

Van Dusen

Cireuit Judge

Attest:

THomas F. Quinn

Clerk

Dated: January 14, 1976

* The jury could reasonably infer from all the facts and circum-

stances surrounding the transaction, including the fact that Bravo

looked into the crate, and from Lravo’s subsequent flight, that de-

fendant Bravo knowingly possessed marijuana with intent to dis-

tribute it in violation of 21 U. S. C. § 841(a)(1). See, e. g., Trial

Transcript, Vol. II at 2.28-30; 2.35; Vol. III at 3.158 (D. N. Jj.

Crim. No. 74-366).

4a

APPENDIX B

Statutory Provisions Involved

21 U.S.C. Section 841.

(a) Exeept as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute or

dispense, a controlled substance.

21 U.S.C. Section 952.

(a) It shall be unlawful to import into the customs ter-

ritory of the United States from any place outside thereof

(but within the United States), or to import into the

United States from any place outside thereof, any con-

trolled substance in schedule I or II of subchapter I of

this chapter, or any narcotic drug in schedule IIT, IV, or

V of subchapter I of this chapter, except that—

(1) such amounts of any controlled substance in

schedule I or II or any narcotic drug in schedule

Ill, LV, or V that the Attorney General finds to

be necessary to provide for the medical, scientific,

or other legitimate needs of the United States.

21 :'U.S.C. Seetion 960.

(a) Any person who—

-*

(1) contrary to section 952, 953, or 957, of this

title, knowingly or intentionally imports or exports

a controlled substance.

5a

Appendix B

(2) contrary to section 955 of this title, know-

ingly or intentionally brings or possesses on board

a vessel, aircraft, or vehicle, a controlled substance,

or

(3) contrary to section 959 of this title, manu-

factures or distributes a controlled substance, shall

be punished as provided in subsection (b) of this

section.

18 U.S.C. Section 2.

(a) Whoever commits an offense against the United

States, or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.

(b) Whovere willfully causes an act to be done which

if direetly performed by him or another would be an of-

fense against the United States, is punishable as a

principal.