Petition — Spain v. United States

—-s

E Supreme Court, U. &

ae MILED

eee

JUN 23 1976

No. ——

3n the

Supreme Court of the United States

Ocroser Term, 1976

HUBERT SPAIN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PL.ITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIROUIT

JoHN J. WALLACE

Exuiorr KaLcHem

79 West Monroe Street,

Chicago, Illinois 60603

Attorneys for Petitioner

Watiace, SHetton, Kierinman & KaLcHEIM

79 West Monroe Street,

Chicago, Illinois 60603

782-9035

Of Counsel

OF AE A EEE CRIT EN i TTT ATS TIE AR |

The Scheffer Press, Inc.—(312) 263-6850

INDEX

PAGE

PIII scsnsessdesieioccelstapaenspenbdedetsssnsseesaneindabnaiinantainstnianatssiieasiniabiaite 1

SD TIRIIIITD ccciosesscosinecsasassaensntenionereetbinidiptminnasiananienentetionete l

I oo suasanansianisenaiepnsineiiamenniunsiiaaconids 2

STD FCIIIIIG nscccccssctereiccnitcnnsncnnnnanssnnninannitinnnnnatansienes 2

Constitutional Provisions Involved .0..............:ccceeeeeeeeeeeeeees 2

Statutory Provisions Involved ..................:scssssssscssssssseeees 3

ey Sr ne aos csntaneiedanisnsannbiimeiaamusiilia 4

Reasons for Granting the Wit ...............<cc.cccosesesscscosceeess 7

1. The evidence established entrapment as a

IT Oe Gy saciiectesnsictenceensieeninierabviniisiesetatiiansanenvinase 7

2. The government abused the rights and privi-

leges of the defendant when the prosecutor

used language in his final argument that was

so blatantly prejudicial as to deny the defen-

dant a fair trial! and due process of law .......... 10

I saisiccaisiideisiitisiiticestlissisce aatabiiiinicdeaiianiaias aisicenibaiiilaieanon 16

Appendix

A. Opinion of the Court of Appeals ............. ee Al

List Or AvTHorRITIEs CITED

CASEs:

Glasser v. United States, 315 U.S. 60 wo. eee 15

Hampton v. United States, 96 S.Ct. 1646 sees. 10

People of the State of Illinois v. Weathers, 62 I11.2d

STR Seiichi ia aia das oa acetate 12

Sorrells v. United States, 287 U.S. 435 .... eee 7

United States v. Bastone, 526 F.2d 971 oc. ccceceeeeees 12

United States v. Berger, 73 F.2d 278 ...........ccccccescessseseeee 15

United States v. Phillips, U.S. Court of Appeals 7th

Cir. No. 75-1423 (December 12, 1975) .............sccseeseees 12

In THE

SUPREME COURT OF THE UNITED STATES

OctToser Term, 1976

No.

HUBERT SPAIN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

PRAYER

The petitioner, Hubert Spain, respectfully prays that a

Writ of Certiorari issue to review the judgment and

order of the United States Court of Appeals for the

Seventh Circuit in this proceeding entered on May 25,

1976.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit, not vet reported, affirming the judg-

ment of conviction below, is attached hereto and appears

in Appendix “A”,

=

STATEMENT OF JURISDICTION

The petitioner, Hubert Spain, appealed his conviction

in the United States District Court ‘for the Northern

District of Lilinois to the United States Court of Appeals

for the Seventh Circuit. On May 25, 1976, the United

States Court of Appeals for the Seventh Cireuit affirmed

the judgment of conviction. This court’s jurisdiction is

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

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to establish

entrapment as a matter of law.

2. Whether the closing argument by the government

prejudiced the petitioner and denied him a fair trial and

due process of law.

CONSTITUTIONAL PROVISIONS INVOLVED

1. The Fifth Amendment to the Constitution of the

United States provides as follows:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forees, or in the Militia, w ven

in actual service in time of War or publie danger;

nor shall any person be subject for the same offense

to be twice put in jeopardy of lif> or limb; nor shall

be compelled in any criminal cas) to be a witness

against himself, nor be deprived « tife, liberty, or

property, without due process ot iaw: nor shall

private property be taken for public use, without

just compensation.”

=

2. The Sixth Amendment to the Constitution of the

United States provides as follows:

“Tn all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and District wherein the crime

shall have been committed which District shall have

been previously ascertained by law, and to be in-

formed of the nature and cause of the accusation;

to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of Counsel

for his defense.”

STATUTORY PROVISIONS INVOLVED

Title 21, Section 841, U.S.C. states:

Drug abuse - Prevention, Control. Prohibited Acts

A-Unlawful acts.

(a) Except as authorized by this sub-chapter it sliall

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.

(b) Except as otherwise provided in Section $45 of

this title any person who violates sub-section (a) of this

section shall be sentenced as follows:

1. (A) In the ease of a controlled substance in

Schedule I or II which is a narcotic drug such

person shall be sentenced to a term of imprison-

ment of not more than 15 years, a fine of not more

than $25,000, or both.

(B) In the ease of a controlled substance in

Schedule I or I] which is not a narcotic drug or in

the ease of any controlled substance in Schedule

a

III such person shall be sentenced to a term of

imprisonment of not more than five vears, a fine

of not more than $15,000, or both.

STATEMENT OF THE CASE

The Petitioner, Hubert Spain, was found guilty of

distributing controlled substances.

Trial was by a jury. Upon a verdict of guilty on the

aforementioned counts, judgments of convictions were

entered and he was sentenced to the custody of the

Attorney General for a period of three years on each

of the said counts with sentences to run concurrently

on each count and a special parole of two vears consecu-

tively to make it a total of six vears.

It is from these judgments and sentences that the

petitioner appealed.

The defense and prosecution offered sharp!v differing

versions of the facts. Drug Enforcement Administration

agents learned that defendant, who operated a pharmacy

on Chicago’s south side, had ordered large amounts of

quinine, which is not a controlled substance but which

is sometimes used to dilute heroin. DEA Agent Kenneth

L. Rhodes called defendant by telephone and, without

identifying himself, said he wanted to talk to defendant

about “some Q”, meaning quinine. Defendant told him

to come to the pharmacy. Rhodes did so the next day

and offered to trade quinine for “uppers. ... That is some

fat pills.” Defendant said he could get as much didrex,

a controlled substance, as Rhodes wanted. Defendant

examined bottles of quinine Rhodes had brought with him

and asked whether Rhodes had any sealed bott!es. Rhodes

replied that he did.

—

The next day Rhodes again called defendant and agreed

on the specific terms of a barter of quinine for didrex

tablets. That afterncon the transaction was consummated,

future bariers were discussed, and it was arranged that

a messenger, who turned out to be Agent Kenneth Labik,

would handle future transactions on behalf of Rhodes.

Subsequent transactions during the next month follow-

ed the same pattern, except that in some instances con-

trolled substances other than didrex were received for

the quinine. The last of these transactions was initiated

by defendant, who telephoned Agent Labik and said he

“had 500 tablets of didrex for sale for 50 ounces of

quinine” and agreed to meet Labik in a parking lot to

make the exchange. At that meeting defendant delivered

the didrex to Labik and was immediately thereafter

arrested. After being duly informed of his constitutional

rights, defendant at first said he was using the quinine

to prepare a hair product, but then admitted that he was

selling it to narcotics dealers. There was no evidence of

other prior criminal activity by defendant. Evidence in-

dicated the government formulated and created the activity

to contact the defendant.

Defendant’s version of the facts was markely different

from that of the agents. He testified that, im their first

meeting, Rhodes identified himself and “said that he

wanted to catch this white fellow and his friends that

are selling, pushing pills to the black kids in the com-

munity and he needed my cooperation.” Defendant testi-

fied that he at first declined but after being threatened

with harassment agreed to cooperate, following which

Rhodes gave him pills with instructions to give them

to the saspected pusher in return for quinine. Defendant's

account of the conversation was corroborated by a witness

—

who testified that he overheard it while repairing a stamp

machine nearby. Agent Labik was this “white fellow”.

Later, defendant testified, a stranger delivered to him

at the pharmacy a package containing a controlled sub-

stance which he later delivered to Labik in exchange

for quinine. This was corroborated by a witness who

testified that he was sitting in an automobile smoking a

marijuana cigarette when three men approached him and

told him they were police and would arrest him unless

he delivered a package to the pharmacy of defendant,

whom he did not know, and that he then delivered the

package.

Defendant’s account of the arrest also differed sharply

from the accounts of the agents. He testified that a dirty

cigar picked up from the ground was shoved into his

mouth by one of the agents, that the agents threatened

to kill him, and that one held a gun to his head. He

denied making any admission to the agents that he was

selling quinine to narcotics dealers. These assertions

were first made at the trial. The agents testified that

they did not assau't or threaten defendant. Defendant

testified Labik cailed and left his telephone number and

that is how and why he called that man (Labik) concern-

ing the last transaction, which therefore was initiated

by the Government.

There were other disputed issues of fact, such as

whether quinine is difficult to obtain in large quantities

and whether defendant had a legitimate use for quinine

in connection with experiments he was conducting to

develop a hair grooming product.

_

REASONS FOR GRANTING THE WRIT

1. THE EVIDENCE ESTABLISHED ENTRAPMENT

AS A MATTER OF LAW.

The defense of entrapment is notably set forth in the

established case of Sorrells v. United States, 287 U.S.

435 at 441, 442, wherein it is stated as follows:

“Tt is well settled that the fact that officers or em-

ployees of the government merely afford opportunity

facilities for the commission of the offense does not

defeat the prosecution.”

“A different question is presented when the criminal

design originates with the official of the government

and they in plant in the mind of an innocent person

the disposition to commit the alleged offense.”

The criteria of entrapment which has won general

acceptance is the “subjective” or “origin of intent” test

which allows the defense only if the criminal act was

the product of the created activity of law enforcement

officials. The court supplying this te-’ make two inquiries.

Whether there was inducement on the part of the govern-

ment official and if so, whether the defendant showed

any pre-disposition to commit the offense. Generally,

therefore, where the criminal intent originates in the

mind of the entraping person and the accused is lured

into the commission of the offense charged in order to

prosecute him, no conviction may be held.

The Court of Appeals stated the defense and prosecu-

tion offered sharply differing versions of the facts

(Appendix “A”, page A2). Therefore, for all practical

purposes the court erased any thoughts that entrapment

did exist, but on the other hand disclosed a distinct feeling

that the possibility of entrapment was evident.

yen Wes

The Court of Appeals then properly disclosed in its

opinion that there was no evidence of other prior crim'nal

activity by the defendant (Appendix “A”, page A3) by

the fact that throughout the entire transcript of testi-

mony in this matter there is not one single instance of

the defendant’s engagement in prior criminal activity of

any nature whatsoever.

In the opinion quoted herein at (Appendix “A”, page

A5) it is stated that inconsistencies in the government

ease do not require inference that the government agents

perjured themselves. (No abstract for Appendix was pre-

pared on appeal to the Seventh Court of Appeals and

TR refers to pages in the trial transcript.) A look at the

transcript (Tr. 86) shows that the reputation of the

defendant and his integrity was neither refuted or at-

tacked in any fashion by the government while on the

other hand there was clear impeachment of Agent Labik

on cross-examination, when he testified that any citizen

can ge into almost any drug store and purchase a small

amount of quinine if they have it available; and when

Agent Labik testified before the Grand Jury while also

under oath and when he was asked the question “is

quinine hard to get hold of?”, his answer was “quinine

is very difficult to get hold of, yes, sir.” (Tr. 135). That

after this clear impeachment in his testimony at (Tr.

135), he stated, “Well, I am sure that my statements

reflect two different answers,” and yet, both statements

were made under oath. This, of course, was lightly con-

sidered in the opinion of the Court of Appeals. “Incon-

sistencies in the government case does not require an

inference that the government agents perjured them-

selves.” Such statements certainly and definitely were

without merit and the cases quoted in the opinion have

no substance or thrust to defeat the facts and issues in

pial es

this matter of entrapment and the matter of inconsistent

statements (Appendix “A”, page A5).

The defendant in matters of entrapment has a burden

of proceeding with evidence to show that he was in fact

entrapped; but on the other hand, the government, when

this matter of entrapment has been introduced, has a duty

to prove beyond a reasonable doubt that there was no

entrapment as a matter of law.

It was shown throughout the transcript that the govern-

ment was travelling on very soft ground, was unable to

earry its responsibility of proof beyond a reasonable

doubt, that the government failed in its defense of en-

trapment; and so uncertain was the government in this

area, that when the government in its presentation of

the subject case made an effort to introduce evidence

which was seized at the home of the defendant, to-wit.

“Quinine” and the court denied upon objection of the

defendant the introduction of said evidence and a dis-

cussion pertaining to this between the court and the

government prosecutor (Tr. 107) reached a point where

the prosecutor directed an inquiry to the court, to-wit:

“How is the government to show pre-disposition?”, and

the court then said in response thereto, “wait until he

raises the defense and then we wi!'l see” (Tr. 108). It is

evident at this point in the proceedings and thereafter

that the prosecutor himself did not feel a strong basis

or any basis whatsoever that he would be able to respond

and take up the defense of entrapment; and, again

nowhere does it appear in the record that such defense

was met and a pre-disposition by the defendant proved

beyond a reasonable doubt.

It was therefore shown without a doubt that entrap-

ment was a substantial defense and was proven by the

<= =

defendant as a matter of law; and, the government did

not meet its burden of proving beyond a_ reasonable

doubt that entrapment was not shown.

The government witnesses, the Drug Enforcement

Agents, admitted they created and formulated the plans

to contact the defendant. No pre-disposition was shown.

Defendant had no prior criminal record of activity.

The instant case falls within the purview of J/ampton

v. United States, 96 S. Ct. 1646 (1976), for the defendant

Spain had no prior criminal convictions or record; the

government agents formulated and created the activity

and supplied the controlled substances to defendant; and

no predisposition to commit the crime was shown by the

prosecutor.

The limitations of the due process clause of the Fifth

Amendment, and of those portions of the Bill of Rights

which it has been held to incorporate, came into play,

for the government’s activity in question in the instant

case violated protected rights of the defendant Spain.

2. THE GOVERNMENT ABUSED THE RIGHTS AND

PRIVILEGES OF THE DEFENDANT WHEN THE

PROSECUTOR USED LANGUAGE IN HIS FINAL

ARGUMENT THAT WAS SO BLATANTLY PREJU-

DICIAL AS TO DENY THE DEFENDANT A FAIR

TRIAL AND DUE PROCESS OF LAW.

The closing argument of the prosecutor was so blatamtly

and emotionally prejudicial that the jury in this instance

could not be otherwise than swayed to the utmost degree

by the context of the verbiage set forth in the said closing

argument.

The government prosecutor propounded an improper,

inflammatory and prejudicial closing argument, which was

=

of such a nature that it could not be cured by objections,

rulings thereon, or by instructions of the district court

to disregard them; but, having been made to the jury,

said final argument necessarily caused the jurors to mis-

understand the law applicable to the case, the defense

of entrapment, and to feel prejudice and ill-will toward

Hubert Spain, his witnesses and improperly reflected upon

the integrity of the defendant and his attorney, as shown

by the record and the verdict.

The opinion in the Court of Appeals is most susceptible

of the inner feelings of the court, for while preparing

the decision affirming the trial court, it set forth almost

in detail the verbiage of the prosecutor where it said

“in the case at bar the prosecutor repeatedly described

the defense as “concocted, fabricated, contrived, tailored,

perjured and a lie”; and, “The defendant was said to

be trying to frame the government by bringing you this

perjured testimony”; and “A defense witness was char-

acterized as a liar, and said to have given “lie testimony”;

and, “All this may have been literally true and yet it was

not proper argument.” The court went on to say “We

do not say that the use of any of these expressions is

improper in all circumstances, but their emotive and

pejorative connotations tend to impair the calm and de-

tached search for truth to which a criminal trial should

aspire, and they should be avoided. We can add that their

injudicious and excessive use is likely to be self-defeating,

repelling jurors instead of convincing them.”

The defense pointed out in its brief in great detail

19 absolute vilifications of the defendant and his counsel

by the prosecutor in his final argument as set forth in

the transcript extending from (Tr. 516) to (Tr. 554);

and when read ‘» its entirety, it indicates the detrimental

=

and descructive features of this most prejudicial final

argument.

In the case of the People of the State of Illinois v.

Carl Weathers, 62 Ill. 2d 114, the ranting of the prosecu-

tor in his closing argument was severely condemned.

The Supreme Court of Illinois stated the prosecutor’s

closing argument involving charges that the defendant

and his attorneys had lied warranted reversal. The court

said at page 119 “each of the five remarks was grossly

improper, we condemn them. Mr. Corsentino far exceeded

the boundaries of permissible commentary, he would be

well advised to remember that every defendant regardless

of the nature of the proof against him is entitled to a

fair trial (citations). It is one thine for a prosecutor

to get caught up in the heat of battle and make a mistake,

but it is quite another to repeatedly transgress the bounds

of deceney and fair play. The law expects more and

indeed demands more than one who is trained in law

and who represents the people in a criminal prosecution.”

It will be noted that the court speaks here of only /fve

remarks which they considered grossly improper as com-

pared to the numerous and sundry remarks made by the

prosecutor in the instant case.

As to the defendant’s final argument, in view of the

prosecutor’s arguinent, defendant’s counsel argument falls

within the “invited response” doctrine. United States v.

Bastone, 526 F.2d 971 (7th Cir. 1975).

The law as set forth in People v. Weathers is more than

bolstered in the matter of United States of America vy.

Jimmy E. Phillips decided December 30, 1975; which was

reported in the United States Court of Appeals for the

Seventh Circuit under No. 75-1423, wherein the proseeutor

said in his closing argument, “if you try to reason any

—— -— +

—13—

other way (that this case has not been proved beyond

a reasonable doubt) it would seem to me the way you

are going to have to find is that the Government somehow

or another trumped-up a charge. In other words, you

are going to have to find, I guess, that we really did not

get this stuff from anybody, that they tried to make a

case on these guys and just went there with this stuff

and came back and said, well, we got it from these people.

If vou make that kind of finding on the basis of the

evidence you have before you, | cannot help you heeause

the effect of what you are saying is that... (the govern-

ment agent) has violated the civil rights of these two

people, in other words he has committed a crime and

In the instant case we have the same situation involving

the defendant Spain, where the prosecutor in his closing

argument said, “Now in order to find the defendant

Spain not guilty in this case you have got to determine

in your mind that five government agents walked in here

collectively and individually decided that they were going

to frame Ilubert Spain. You have got to have in your

mind that these agents forged their reports, they perjured

themselves on the stand, that they got together on some

day and decided we are going to get Defendant Spain.

You have also got to conclude that they concocted up

this defense on Defendant Spain. You have to conclude

that what has been brought to you here is not an inform-

ant case as a case made by agents, you have got to

conelude that over 37 years of total experience these

agents is a mere frame. Now I ask you: these agents

had no motive to lie, who has the motive to lie in this

case, and who has lied in this case and who has come

up with this concocted defense is the defendant Hubert

Spain.” The court in the Weathers case concluded that

—*

statements like these of a prosecutor were highly pre)-

udicial and erroneous and most probably that the defen-

dant did not receive a fair trial to which he was entitled.

The ease of Defendant Spain without a question falls

wtiin a purview ot People of the State of Illinois v. Carl

Weathers, and United States of America v. Jimmy E.

Phillips.

The Court of Appeals conde:nned the impropriety of

the prosecutor’s final argument throughout its opinion.

It stated “That the arguments attacking the credibility

of opposing witnesses could have heen made with more

decorum by the prosecutor is an understatement. We shall

have more to say about that later.” (Appendix “A”, page

A7). Again, “we do not find plain error, neither do we

condone the prosecutor’s argument.” (Appendix “A”, page

A7). And, “The prosecutor also told the jury several

times that the defendant was attempting ‘to sell you the

Brooklyn Bridge.” It should be unnecessary for us to

say that this hackneyed metaphor had no place in the

courtroom.” (Appendix “A”, page AQ).

When one adds all of the above remarks to the follow-

ing remarks discussed in the opinion of the Court of

Appeals, there is only one conclusion, gross error and a

prejudicial final argument: “Defendant also complains

of the following statement made by the prosecutor in

responding during rebuttal to the defense’s entrapment

argument:

Agents of the federal government do not make those

kind (sic) of cases unless, in fact, there is the evidence.

Once the evidence is there, most certainly the case is

made. This was grossly improper.”

It can be readily observed that the Court of Appeals

strongly condemns the prosecutor’s final argument, but

did nothing about such gross and improper argument;

and, this is so even though it went on to state that “The

records before us recently have too often disclosed prose-

cutorial arguments which, while not rising to the level

of plain error, were nevertheless improper. If this con-

tinues, this court may find it necessary in appropriate

cases to exercise its supervisory authority, even in the

absence of plain error. In the future all federal prosecu-

tors in this cireuit will conform their arguments to the

standards set by the Supreme Court in the Berger case.”

If the instant case had no plain error and the final

argument was so grossly improper, why wait, why give

the government “one more bite of the apple” to the

prejudice of this defendant. If the remarks of the prose-

eutor were so grossly improper, why not reverse now—

why didn’t the Court of Appeals exercise its supervisory

authority and stop such arguments by the government

now — whiy wait for another argument like this.

Such final argument violates due process of law. The

way to ensure compliance with the standards set up by the

Supreme Court in United States v. Berger, 73 F.2d 278

(2d Cir. 1934) was to do something now and not wait

for the next case to come along.

If such final argumen.' was grossly improper now —

there should be no opportunity for the government to

again make such a fatal and improper argument which

prejudiced the defendant and denied him a fair trial and

due process of law.

In Glasser y. United States, 315 U.S. 60, 67, the court

discussed constitutional safeguards where the smallest

error could have swung the balance between innocence

and guilt and said:

—=_

“In all cases the constitutional safeguards are to be

zealously preserved for the benefit of the accused,

but especially is this true where the seales of justice

may be delicately poised between guilt and innocence.

Then error, which under some circumstances would

not be ground for reversal, cannot be brushed aside

as immaierial since there is a real chance that it

might have provided the slight impetus which swing

the seales toward guilt.”

CONCLUSION

For the foregoing reasons a Writ of Certiorari should

issue to review the judgment and opinion of the Court of

Appeals for the Seventh Cireuit.

Respectfully submitted,

JoHn J. WALLACE

MLLIoTT KALCHEIM

79 West Monroe Street

Chicago, Illinois 60603

Attorneys for Petitioner

WaLuLace, SHELTON, KLEINMAN & IXKALCHEIM

79 West Monroe Street

Chicago, [linois 60603

782-9035

Of Counsel

APPENDIX “A”

For THe SeventuH Circuit

Cuicaco, LLuinois 60604

June 11, 1976

Before

Hon. Puiuipe W. Tone, Cirewt Judge

SE ea

EES SS Lae

Unitep States Or AMERICA,

Plaintiff-Appellee,

No. 75-2127

Hvupert Spain,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, FMastern Division.

(75 306 CR)

This matter comes before the court on the “MOTION

FOR STAY OF MANDATE” filed herein on June 10, 1976

by counsel for the defendant-appellant. On consideration

whereof, this Court being fully advised in the cireun-

stances,

IT IS ORDERED that the aforesaid motion be, and the

same is hereby, DENIED.

— A2—

In THE

UNITED STATES COURT OF APPEALS

For Tue SeEvenrTu Cracvit

No. 75-2127

Unitep States Or AMERICA

Plaintiff-Appellee,

Hvusert SPAIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division—No. 75 CR 306

Tuomas R. McMitten, Judge.

Arcuep Aprit 29, 1976 — Decipen May 25, 1976

Before Farrcuitp, Chief Judge, Cummixcs and Toxr,

Circuit Judges.

Tone, Circuit Judge. The defendant was convicted in a

jury trial of distributing controlled substances in viola-

tion of 21 U.S.C. § 841(a) (1). On appeal, he argues that

entrapment was established as a matter of law and that

the prosecutor’s closing argument was improper. We af-

firm.

The defense and prosecution offered sharply differing

versions of the facts. We must assume for purposes of

appeal that the jury accepted the government’s version,

which was as follows: (Drug Enforcement Administration

agents learned that defendant, who operated a pharmacy

—_"

on Chicago’s south side, had ordered large amounts of

quinine, which is not a controlled substance but which is

sometimes used to dilute heroin. DEA Agent Kenneth

L. Rhodes called defendant by telephone and, without

identifying himself, said he wanted to talk to defendant

about “some Q,” meaning quinine. Defendant told him to

come to the pharmacy. Rhodes did so the next day and

offered to trade quinine for “uppers .... That is some

fat pills.” Defendant said he could get as much didrex, a

controlled substance, as Rhodes wanted. Defendant ex-

amined bottles of quinine Rhodes had brought with him

and asked whether Rhodes had any sealed bottles. Rhodes

replied that he did.

The next day Rhodes again called defendant and agreed

on the specific terms of a barter of quinine for didrex

tablets. That afternoon the transaction was consummated,

future barters were discussed, and it was arranged that

a messenger, who turned out to be Agent Kenneth Labik,

would handle future transactions on behalf of Rhodes.

Subsequent transactions during the next month followed

the same pattern, except that in some instances controlled

substances other than didrex were received for the quinine.

The last of these transactions was initiated by defendant,

who telephoned Agent Labik and said he “had 500 tab-

lets of didrex for sale for 50 ounces of quinine” and

agreed to meet Labik in a parking lot to make the ex-

change. At that meeting defendant delivered the didrex

to Labik and was immediately thereafter arrested. After

being duly informed of his constitutional rights, defen-

dant at first said he was using the quinine to prepare a

hair product, but then admitted that he was selling it to

narcotics dealers. There was no evidence of other prior

criminal activity by defendant.

Defendant’s version of the facts was markedly different

from that of the agents. He testified that, in their first

meeting, Rhodes identified himself and “said that he want-

de to catch this white fellow and his frieds that are sell-

—At—

ing, pushing pills to the black kids in the community and

he needed my cooperation.” Defendant testified that he

at first declined but after being threatened with harass-

ment agreed to cooperate, following which Rhodes gave

him pills with instructions to give them to the suspected

pusher in return for quinine. Defendant’s account of the

conversation was corroborated by a witness who testified

that he overheard it while repairing a stamp machine

nearby.

Later, defendant testified, a stranger delivered to him

at the pharmacy a package containing controlled sub-

stances which he later delivered to Labik in exchange for

quinine. This was corroborated by a witness who testified

that he was sitting in an automobile smoking a marijuana

cigarette when three men approached him and told him

they were police and would arrest him unless he delivered

a package to the pharmacy of the defendant, whom he did

not know, and that he then delivered the package.

Defendant’s account of the arrest also differed sharp-

lv from the accounts of the agents. He testified that a

dirty cigar picked up from the ground was shoved into

his mouth by one of the agents, that the agents threatened

to kill him, and that one held a gun to his head. He denied

making any admission to the agents. These assertions

were first made at the trial. No motion to suppress was

ever made. The agents testified that they did not assault

or threaten defendant.

There were other disputed issues of fact of less signi-

fieance, such as whether quinine is diffienlt to obtain in

large quantities and whether defendant had a legitimate

use for quinine in conection with experiments he was

conducting to develop a hair grooming product. The jury

wsa justified in resolving these issues, like the other

factual issues, against defendant.)

1.

We can quickly dispose of defendant’s argument that

the testimony of the agents was inherently incredible

—_

because it was conflicting with respect to details of the

arrest. Agent Weinstein testified that he and Labik “had

guns” on defendant (who was armed) and that defendant

admitted using the quinine to dilute heroin seconds after

saying he was using it for a hair preparation. Labik

testified that he “never placed a gun on” defendant and

that defendant changed his story after 20 minutes of con-

versation. The jury could have found that these discrep-

ancies, which concerned collateral matters, were the re-

sult of mistake. Inconsistencies in the government case

do not require an inference that the government agents

perjured themselves. Chapman v. United States, 408 F.2d

11, 12 (2d Cir. 1969). Even if the jury found that an

agent had deliberately testified falsely on a collateral!

matter, it could still accept the substance of his testimony

on the issues in the case. See United States v. Proprano,

418 F.2d 1069, 1074 (2d Cir. 1969), cert. denied, 397 U.S.

1021; Wyatt v. United States, 263 F.2d 304, 308 (Sth Cir.

1959), affirmed, 362 U.S. 525 (1960).

2.

The defense of entrapment is available when a defen-

dant who was induced to commit an offense by government

agents had no predisposition to commit the offense. United

States v. Russell, 411 U.S. 423, 483-486 (1973); United

States v. Perry, 478 F.2d 1276, 1278 (7th Cir. 1973), cert.

denied, 414 U.S. 1005. A corollary of this principle is the

rule that “mere solicitation” by government agents “is

not enough to show entrapment.” United States v. Perry,

supra, 478 F.2d at 1278; aceord, Kadis vy. United States,

373 F.2d 370, 374 (1st Cir. 1967); and see Lewis v. United

States, 385 U.S. 206, 208 (1966).*

“It has been held that proof of solicitation imposes on

the government the burden of proving propensity, l’nited

States v. Jones, 260 F.2d 92, 96 (2d Cir. 1966), cert.

denied, 385 U.S. 1012; but see Hays, J., dissenting in

United States v. Riley, 363 F.2d 955, 959-961 (2d Cir.

1966); but propensity can be shown by the defendant’s

ready response to the solicitation, United States v. Viviano,

= =

Entrapment is established as a matter of law only when

the absence of predisposition appears from uncontradict-

ed evidence. In the case at bar the evidence bearing on

the issue of predisposition was in conflict, and that issue

was therefore properly submitted to the jury. The evi-

dence from which the jury could properly have found

predisposition included defendant’s ready response to the

solicitation, United States v. Viviano, 437 F.2d 295, 299

(2d Cir. 1971), his initiation of the final transaction, on

which one of the counts of the indictment was based, and

his admission that he was distributing quinine to narcotics

dealers for use in diluting heroin. The defense of entrap-

ment was properly submitted to the jury, and the jury

was justified in rejecting the defense.

3.

We turn now to the issue of whether the prosecutor’s

closing argument, to which (with one irrelevant excep-

tion) no objection was made, was so prejudicial as to

amount to plain error under Rule 52(b), Fed. R. Crim.

P. Since irreconcilable conflicts in the evidence could not

have been the result of honest mistake each counsel was

of course entitled to argue that witnesses called by him

had spoken the truth and those called by the other side

had testified falsely. There was no other way to argue

the case effectively. Urging the jury to believe the gov-

ernment witnesses’ testimony did “not constitute a vouch-

ing for the credibility of the witnesses nor an indication

of the prosecutor’s personal belief or opinion as to guilt

of the defendant.” [’nited States v. Verse, 490 F.2d 280,

282 (7th Cir. 1973), cert. denied, 416 U.S. 989 (1974).

* (Continued)

437 F.2d 295, 299 (2d Cir. 1971). It is unnecessary to

decide whether to follow the Second Circuit’s burden-

of-proof rule, not only because no point concerning bur-

den of proof is made in the case at bar, but because the

trial judge instructed the jury, in substance, that the

government was required to prove predisposition beyond

a reasonable doubt.

=—_

That the arguments attacking the credibility of oppos-

ing witnesses could have been made with more decorum

by the prosecutor is an understatement. We shall have

more to say about that later. But counsel for the defen-

dant, instead of objecting, chose to respond in kind. As

he said in response to a prosecution objection during his

argument, ‘I didn’t interfere with yours. Will you please

let me speak because it is against you, counsel?” If counsel

for defendant had objected when the first offensive state-

ment was made by the prosecutor, the trial judge would

presumably have corrected that error and prevented its

recurrence not only during the argument of the prosecutor

but, upon proper objection, during the argument for the

defense as well. Instead of objecting, counsel for the de-

fendant made an argument that was more offensive than

the prosecutor’s. The inference of tactical choice is un-

avoidable. We think that the defendant was not prejudiced

by what occurred, The jurors must have understood that

the version of one side or the other was false, and they

were not likely to have been influenced in deciding which

it was by the manner in which the assertions of falsehood

were expressed in counsel’s arguments.

Although we do not find plain error, neither do we

condone the prosecutor’s argument. By way of a_ back-

ground to what we have to say on this subject, it should

be observed that judges have differed about the boundaries

of legitimate prosecutorial oratory. Judge Learned Hand

said over fifty years ago, “To shear him [the prosecutor |

of ail oratorical emphasis, while leaving wide latitude to

the defense, is to load the scales of justice ... .” DiCarlo

v. Unt d States, 6 F.2d 364, 368 (2d Cir. 1925). In Berger

Vv. United States, 295 U.S. 78 (1935), the Supreme Court

reversed the Second Cireuit on the ground of prosecuto-

rial misconduct, including a closing argument which Judge

Hand had said “failed in moderation and good taste”

but was not so gravely offensive as “to compromise its

[the trial’s| essential fairness.” United States v. Berger,

73 F.2d 278, 279, 280 (2d Cir. 1934). While the Supreme

(‘ourt deseribed the closing argument as “containing im-

proper insinuations and assertions ealeulated to mislead

the jury,” which included assertions as to the prosecutor's

personal knowledge, the Court also criticized the argu-

ment as “undignified and intemperate.” 295 U.S. at 85.

—

In another appeal decided shortly after the Supreme

Court’s decision in Berger, the Second Cireuit, per L.

Iland, J., noted “¢ in view of that decision it “felt bound

to look somewhat jealously for any abuse of oe position

by the seaseeelinas attorney,” yet sustained a conviction

despite an argument by the prosecutor that was “at

times... certainly denunciatory.” United States v. Wezler,

79 F.2d 526, 529, 530 (2d Cir. 1935), cert. denied, 297 US.

703. Judge Hand said:

“It is impossible to expect that a criminal trial shall

he conducted without some show of feeling; the stakes

are high, and the participants are inevitably charged

with emotion. Courts make no such demand; they

recognize that a jury inevitably catches this mood and

that the truth is not likely to emerge, if the prosecu-

tion is confined to such detached exposition as would

be appropriate in a leeture, while the defense is allow-

ed those appeals in misericordiam which long eustom

has come to sanction. The question is always as to

the partienlar incident challenged, in the setting of

the whole trial.” 79 F.2d at 529-530.

The prosecutor's argument in Weeler, unlike that in

Berger, did not contain improper insinuations or asser-

tions. Because the argument was “supported by the evi-

dence or by reasonable inferences from it,” the court

would not reverse merely because it contained “rhetoric

Iwhich| seems to us intemperate and feeble,” but whieh

“cannot be said to step beyond limits permissible to those

who like it.” Td. at 530.

Some vears later .iudge Evans of this court sustained

die right of the proseeutor to “speak frankly, vigorously

and effectively concerning the unfavorable facts, or to

draw therefrom legitimate conclusions, unpleasant and

embarrassing to the aeeused ... .” He added,

“The district attorney is quite free to comment legi-

timately and to speak fully although harshly upon the

action and conduct of the accused, if the evidence sup-

ports his comments, as is the accused’s counsel to

comment upon the nature of the evidence and the

character of the witnesses which the Government

produces and which is favorable to him.” United

— AI—

States v. Freeman, 167 F.2d 786, 791 (7th Cir. 1948),

cert. denied, 335 U.S. 817.

In more recent times this court has held a prosecutor’s

reference to statements of a defendant as “lies” to be

proper argument. United States v. Tsaacs, 493 F.2d 1124,

1166 (1974), cert. denied, 417 U.S. 976. “Lies” was found

permissible but “perjured” was said to be “rather ill-

considered” in United States v. Jansen, 475 F.2d 312, 317

(7th Cir. 1973). A prosecutor’s argument which, among

‘a host of infirmities,” included a characterization of the

defense as one which the jury would “have to be born

vesterday to believe” and as “riddled with lies,” a “pack

of lies,” “an insult to vour intelligence,” and “eoncocted,’

was held by the Second Cireuit to be sufficiently prejudicial,

in combination with an incorrect instruction to the jury,

to require a new trial in [Unwed States v. Gonzales, 488

F.2d 833, 836 (1973).

In the case at bar the prosecutor repeatedly described

the defense as “concocted,” “fabricated,” “contrived,”

“tailored,” “perjured,” and “a lie.” The defendant was

said to he “trving to... frame” the government by “bring-

ing you this perjured testimony.” A defense witness was

characterized as a “liar” and said to have given “lie testi-

mony.” All this may have heen literally true, and yet

it was not proper argument. We do not say that the use

of any of these expressions is improper in all ecirenm-

stances; but their emotive and pejorative connotations

tend to impair the ealm and det tached search for truth

to which « criminal trial should aspire, and they should

ordinarily be avoided. We can add that their injudicious

and excessive use is likely to be self-defeating, repelling

jurors instead of eonvineing them.

The prosecutor also told the jury several times that

the defendant was attempting “to sell von the Brooklyn

Bridge.” It should be unnecessary for us to say that this

hackneyed metaphor had no place in the courtroom.

Nothing we have said is intended to discourage a

prosecutor from vigorous argument or frank comment on

the evidence or the character of a witness. The line be-

tween the “undignified and intemperate” (Berger v. United

States, 295 U.S. at 85) and the “hard” (id. at 88) or

— Al0—

“harsh” (United States vy. Freeman, 167 F.2d at 791) but

fair, is not susceptible of ready definition. It can only be

located through a sense of fitness and taste and an ap-

preciation of the prosecutor’s proper role (Berger, 295

U.S. at 88). Those who cannot discern that line with con-

fidence had best stay a safe distance away from it.

Defendant also complains of the following statement

made by the prosecutor in responding during rebuttal to

the defense’s entrapment argument:

“Agents of the federal government do not make those

kind [sic] of eases unless, in fact, there is the evi-

dence. Once the evidence is there, most certainly the

ease is made.”

This was grossly improper. There was, however, no ob-

jection. If there had been, the trial judge would presum-

ably have suitably admonished the prosecutor for his mis-

conduct and advised the jury that no such inferenee could

he drawn. The trial judge later properly instrueted the

jury of the presumption of innocence and the limited fune-

tion of an indictment, and admonished them that the in-

dictment is not evidence of guilt and they must not be

prejudiced against the defendant because an indictment

was returned against him. After having carefully con

sidered the prosecutor’s statement in the context of the

entire record, we are persuaded that it was not plain

error.

The records before us recently have too often dis-

closed prosecutorial arguments which, while not rising

to the level of plain error, were nevertheless improper.

If this continnes, this court may find it necessary in ap-

propriate cases to exercise its supervisory authority, even

in the absence of plain error. In the future all federal

prosecutors in this cireuit will conform their arguments

to the standards set by the Supreme Court in the Berger

case.

AFFIRMED.