Petition — Goodroe v. United States

MICHAEL RODAK, JR., CLERK

Supreme Court af tie Matted tates.

October Term 1976

No.

Souci 76-1327

CHARLES GOODROE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

——_— — - —— ee ee eae ee ——— ee ee ee ee ee —

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_—- TT cr re ——_ —-< - -_- ———

JACOB KOSSMAN

Counsel fer Petitioner

1325 Spruce Street

Philadelphia, Pa. 19107

———— eee eee

Dick Bailey Printers, 200 Richmond Ave, Staten Island, N.Y. 10302

Tel «¢212) 447 5358

TABLE OF CONTENTS

Page

SD ccccdccccnccnéccccscecestecsseses 1

EE Scccdnecbeddbsbdvaduceessnecbeonbels 2

ND bck cccceccunccncdccseneseceses 2

EE, ssc cic censcuensendeeseaueteabs 4

SRRSTESTRGTEOGED ci vccccvccccccccccccccccecese 5

Reasons for Granting the Writ ....... 2.0... 0.60045. ~

1. The reach of Section 922(h) of the Omnibus Crime

Control and Safe Streets Act is an important

question of federal law that has not been, but

should be settled by this Court. ................

2. The indefinite expansion of Section 922(h) by the

courts below raises a serious question of the con-

aaa aa ctenaenontmmmedintaetnactaes

3. The interrelationship of the two ‘‘receipt’’ offenses

in Titles IV and VII of the Omnibus Crime Control

and Safe Streets Act. in light of the judicial con-

structions of the separate provisions. poses a

difficult and important problem of two statutes that

are essentially identical but with grossly d sparate

4. The prosecutorial behavior in this case, seeking

and obtaining an indictment under Section 922(h)

after petitioner failed to accept the prosecutor's

offer of a plea bargain to the original indictment

under Section 1202(a), represents such a flagrant

example of the possibility of vindictiveness as to

demand relief under the Due Process Clause, or at

the very least to call for this Court to exercise its

power of supervision. ...... 6-6 -6sseeeereeeeees 15

Conclusion ... 0... 06. cece reece eee e ene eeeeeees 17

Appendix A—Judgment Order of the Court of Appeals

For The Third Circuit .........:00eeee eee eens la

Appendix B—Order of the United States District Court

for the Eastern District of Pennsylvania ......... 4a

Appendix C—Indictment .....-.--.seeeeeeeereees 5a

Appendix D—Superseding Indictment ......------. 7a

CASES CITED:

Achilli v. United States, 353 U.S. 373 (1957) ......... 15

Barrett v. United Siates, U.S., 423 U.S. 212, 24 450

CIDTED on cccccvcccccdcccccccccccccccescccoceces 9

Bell v. United States, 349 U.S. 81 (1955) ........+.-. 15

Blackledge v. Perry, 417 U.S. 21 (1974) «2... 60 ceeees 16

California Bankers Ass'n v. Shultz, 416 U.S. 21(1974) 13

ili

Fry v. United States, 421 U.S. 542 (1975) ........... 13

Hayes v. Cowan, ——F2d——(CA6) 1230,1976...... 17

i...

Katzenbach v. MQCClung 379 U.S. 294 (1964) ........ 13

Perez v. United States, 402 U.S. 146 (1971) .......... 13

Rewis v. United States, 401 U.S. 808 (1971) ......... 15

United States v. Ruffin. 490 F. 2d 557 (8th Cir. 1974) . 11

United States v. Scarborough, —F .24d—(4th Cir. 1976),

cert. granted, No. 75-1344, Oct.4, 1976 ..... ... 12

United States v. Sullivan, 332 U.S. 689 (1948) ....... 13

STATUTES CITED:

18 U.S.C. Section 922(h) 2... eee 4

TO UBC. Sow. GOOD 2.2 c cc ccccccccccccccccccvcee 4

18 U.S.C. Sec. 1202(a) ..... 0.0.00 eee cc cece e ee 4

Rea a ee 2

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1976

No.

CHARLES GOODROE,

vs.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Third Circuit im the above entitled case, entered on

February 28, 1977.

OPINIONS BELOW

ty andes 4 ad elena esa

t

JURISDICTION

The judgment of the court of appeals below was entered

on February 28, 1977 (Appendix A. infra, 1a). The

jurisdiction of this Court is invoked under 28 U.S.C.

12S4(1).

QUESTIONS PRESENTED

1. Whether Section 922(h) of the Gun Control Act of

1968. which makes it a crime for certain classes of persons

“to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce,”

can be properly applied to a person found in possession of a

revolver that at some remote past time had been brought

into the State where found and subsequently transferred

through an indefinite number of intrastate private trans-

actions.

11. Whether Section 922(h) of the Gun Control Act of

1968. which makes it a crime for certain classes of persons

“to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce,”

can be properly applied to a person found in possession of a

revolver 33 months after it had been brought by a licensed

firearm dealer into the State where it was found, and after

muitiple entirely intrastate transfers among persons not

engaged in gun dealing following the initial intrastate retail

sale by the firearm dealer who had brought the revolver

into the State.

111. Whether the power granted to the Congress by

Article 1. Section 8(3) of the Constitution: “To regulate

commerce with foreign nations, and among the several

States. and with the Indian tribes” permits enactment of a

federal statute that makes it a crime to receive a firearm

3

which at any time in the past has moved in interstate

commerce, without regard to the length of time that the

article had been within a single State. and without regard

to the absence of any connection with commerce in the act

of receiving.

. IV. Where this Court, in 1971, construed the similar

receipt’ offenses of Title IV and Title VII of the Omnibus

Crime Control and Safe Streets Act so as to preserve a

significant difference between the two offenses. by limiting

Title IV to receiving firearms as part of an interstate

transportation, and where this Court, in 1976, construed

the “receipt” offense of Title IV substantially more broadly

than indicated in its 1971 decision, by including the first

retail transaction within a State after an interstate trans-

portation. does application of Title IV's expanded scope

to intrastate events that occurred between 1971 and 1976

deprive a defendant of due process of law through the ex

post facto effect of retroactive application of the Court's

recent construction?

V. Where the Omnibus Crime Control and Safe Streets

Act of 1968 contains two provisions, substantially identical

which make it a crime for a person previously convicted of a

serious offense to receive a firearm that had moved in

interstate commerce, but which have grossly disparate

authorized punishments. does the recognized principle of

lenity require that the lesser maximum be applied?

VI. Where a defendant. indicted under the less severe of

two essentially redundant federal criminal statutes. fails to

accept a plea bargain offered by the Government, and the

heavier penalty, does the existence of circumstances

containing potential for vindictive prosecutorial behavior

render the “superseding indictment” void as a violation

of defendant's constitutional right to due process of law, or

otherwise require the exercise of this Court's supervisory

power?

STATUTES INVOLVED

A(1) Title IV. Section 922(h), of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. Section

922th). provides:

(h) It shall be unlawful for any person

(1) who is under indictment for, or who has been

convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to

marijuana or any nt or stimulant drug (as

defined in section 201(v) of the Federal Food,

Drug. and Cosmetic Act) or narcotic drug (as

defined in section 4731(a) of the Internal Revenue

Code of 1954): or

(4) who has been adjudicated as a mental

detective or why has been committed to any mental

institution;

to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign

commerce.

(2) Section 924(a), 18 U.S.C. Section 924(a), provides:

Penalties

(a) Whoever violates any provision of this

chapter . . . shall be fined not more than $5,000,

or imprisoned not more than five years, or both,

and shall become eligible for parole as the Board of

Parole shall determine.

B. Title VII. Section 1202(a), of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 App. U.S.C.

Section 1202(a). provides:

Be

(a) Any person who—

x... has _ ms by a court of the United

ates or of a State or an itical ivisi

thereof of a felony, or . af — nage

possesses, or transports in commerce or affecting

commerce, after the date of enactment of this Act,

any firearm sha!! be fined not more than $10,000

- we lor not more than two years, or

STATEMENT OF THE CASE

This is a federal criminal prosecution under the gun

control provisions of the Omnibus Crime Control and Safe

Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197, as

amended, Pub. L. 90-618, 82 Stat. 1213. Petitioner was

originally indicted under Title VII of that Act. This in-

dictment was not prosecuted. A “‘supersediag indictment”

was filed under Title 1V. Petitioner was tried and convicted

under this indictment for a violation of Section 922(h).

The facts of the case are basically simple. A search of

petitioner's premises on November 24, 1975, revealed the

firearm in question, a Harrington & Richardson .32 caliber

revolver, Model 732, Serial Number AL6937. Petitioner

had previously been convicted in the Court of Common

Pleas of Montgomery County, Pennsylvania. of a felony

punishable by imprisonment for a term exceeding one year.

Out of these two facts, the Government constructed this

federal prosecution under the Omnibus Crime Control and

Safe Streets Act.

The original indictment charged in a single count that

petitioner “did knowingly and unlawfully receive and

possess |the revolver], in commerce and affecting com-

merce, . . . in violation of Title 18, United States Code

Appendix Section 1202(a)(1)."" (Appendix C). The cited

a)

Section is in Title VII of the Act. This indictment was tiled

on December 9, 1975. On February 24, 1976, the

Government moved to dismiss this indictment, and the

District Court so ordered. (Docket Entries. p. 2)

On the same date. a “superseding indictment” against

petitioner was filed. This indictment charged in one count

that petitioner “did knowingly and unlawfully receive [the

revolver] which had been shipped or transported in in-

terstate commerce... in violation of Title 18, United

States Code. Section 922(h).”” The cited section is in Title

IN of the Act.

The “superseding indictment” substantially enlarged the

potential sentence that could be imposed upon petitioner-if

convicted. The maximum sentence of imprisonment

authorized under Section 1202(a) of Title VII is two years.

The maximum prison term under Section 922(h) of Title IV

is tive vears. The potential of a greater prison sentence

being imposed upen petitioner was fully realized in the

events that followed. Following conviction, the District

Court imposed the maximum permitted prison term otf five

years.

The developments that occurred between the two in-

dictments were established in a hearing on petitioner's pre-

trial motion to dismiss the “superseding indictment’. On

January 10, 197, the Government offered a plea bargain

on the 1202(a) indictment. If petitioner would plead guilty

to that indictment, the prosecutor agreed to join with

defense counsel in recommending a prison sentence of one

vear; in addition, the Government would not go forward

with prosecution of petitioner on narcotics charges, then

under investigation. (H. Tr. 51 52. 55).! Three days later.

on January 13, 1976, the Government wrote to detense

| References to “H Tr.” are to the trans rpt of the pre-tria: hearing

counsel that the plea offer would be withdrawn if not

accepted by January 19. (H. Tr. 53-54). The offer was not

accepted within that time. and the Government thereafter

moved tor the “‘superseding indictment”.

The case went to trial on the Title IV indictment. To

prove that the revolver “had been shipped or transported in

interstate commerce,"’ as required by Section 922(h), the

Government established a partial history of the revolver's

movements. The prosecution evidence proved that the

firearm had been acquired by a licensed gun dealer in

Coatesville, Pennsylvania. from a Massachusetts company,

on February 21, 1973. (T. Tr. 101).2 Two years and nine

months later, the gun was discovered in petitioner's

premises, when the Government searched them on

November 24, 1975. There was no evidence that the

revolver had ever left Pennsylvania after February 21, 1973.

The Government showed that the dealer sold it to a woman

who gave a Coatesville, Pennsylvania, address on February

6, 1974. (T. Tr. 95-97, 100).3 The only other evidence of

the history of the gun was a statement, said to have been

made by petitioner at the time of the search of his premises,

that he had purchased the gun two years earlier from a

triend in Northeast Philadelphia who had previously

acquired or purchased it in the Harrisburg area. (T. Tr. 52,

53, 68). Despite the passage of thirty-three months since

the revolver had been brought into Pennsylvania, and

despite an untold number of intrastate transactions that

occurred after the intrastate retail sale of the gun, the

Government maintained that this evidence satisfied the

requirements of the statute, and the statute so interpreted

3. References to “T. Tr.” are to the transcript of the trial, April 13-19,

1976.

3. Both indictments charged that petitione: committed an offense

“sometime after February 13, 1974."

comes within the commerce power of Congress under the

Constitution.

The Courts below agreed with the Government's un-

precedented extensions of the statute and of the Con-

stitution. Further. the courts below found no occasion to

protect petitioner from even the possibility of vindictiveness

on the part of Government prosecutors in expanding the

scope of potential punishment from two to five years.

REASONS FOR GRANTING THE WRIT

1. The reach of Section 922(h) of the Omnibus Crime

Control and Sate Streets Act is an important question of

tederal law that has not been, but should be settled by this

Court.

The gun control provisions of the Omnibus Crime

Control and Safe Streets Act of 1968 have been among the

most actively entorced sections of that Act. Within the gun

control provisions, there are two “receipt” offenses that

pose unusually difficult. problems of interpretation.

Already. the meaning of Section 922(h) has been before

this Court twice, and the Court has given different readings

on the scope of that provision. There remains a major

guestion about this important section that has not been

answered. This case poses clearly that vital question of the

outer reach of Section 922(h).

The first case to come before the Court was United States

». Buss. 404 U.S. 330 (1971). Both the Government and the

Court there attempted to make sense of the two “receipt”

ottenses. The Court rejected the Government theory that

the Title VII provision, 18 App. U.S.C. Section 1202(a),

should be given a very wide interpretation in order to

distinguish it from Section 922(h) in Title IV. The Court,

rejecting the Government argument for an extreme reading

of Section 1202(a). declared its considered opinion that this

provision, even as narrowly construed, had a broader

sphere of application than did Section 922(h).

The first prosecution under Section 922(h) to reach this

Court was decided earlier in this present Term. Barrett v.

United States, U.S. 423 US 212 2d 450 (1976). The Court

declined to adhere to the interpretatibn of Section 922(h)

indicated in Bass. The Court declared that Section 922(h)

is not strictly confined to the act of receiving a firearm on

arrival from an interstate or foreign shipment.

The critical concept in Bass and Barrett has been the

nexus between the actions of the defendants and interstate

commerce. Buss held that every prosecution under Section

1202(a) must prove that the forbidden acts of receiving or

possessing were ‘in commerce or affecting commerce," the

language of that statute. To avoid redundancy of Section

1202(a) with Section 922(h), the Government had argued

that for the lesser offense of Section 1202(a) there should be

no need to prove that defendants’ actions were in com-

merce or affecting commerce, but this Court held other-

wise.

Barrett held that the act of receiving a firearm comes

within Section 922(h) where the defendant had received the

gun in the first retail sale of it by a dealer who had brought

into the State. The gun had been manufactured in

Massachusetts, shipped by the manufacturer to a

distributor in North Carolina, and then received by the

retailer in Kentucky. The retail sale was entirely in-

trastate within Kentucky. Significantly, it occurred less

than a month after the retailer received the gun into its

inventory. Moreover, the defendant's arrest in that case

was within an hour after the retail purchase. The Court's

opinion emphasizes the importance of the facts of the case:

10

“We conclude that §922(h) covers the intrastate

. . . , t a

receipt, such as petitioner's purchase here. ©

rene that previously had moved in interstate

commerce.” 423 U.S. at 225 (Emphasis supplied).

he question that is before the Court in this petition tor

certiorari is whether there is any limit to how far Barrett

extends Section 922(h) into purely intrastate concerns.

Petitioner was not involved in the first retail sale of the gun

in question when it was brought into Pennsylvania. The

revolver was not discovered in petitioner's Possession until

thirty-three months after the interstate transportation that

brought it into the stock of a Pennsylvania firearms dealer.

The theory of the Government, adopted by the courts

below. gives a reading to Section 922(h) that is vastly larger

than this Court's decision in Barrett. The principle of

commerce on which petitioner's conviction rests 1s

essentially unlimited in scope. No matter how long after a

firearm has come into a State. the commerce requirement

of Section 922(h) is asserted to have been met. No matter

how many wholly intrastate transfers may have occurred

prior to the receipt of the firearm by the defendant. the

commerce requirement of Section 922(h) is asserted to have

been met.

The movement in this Court's reading of Section 922(h)

from the opinion in Bass to the decision in Barrett. while

significant, was not very great on the facts of Barrett.

Inclusion of the first intrastate retail sale of a firearm that

has been moving in commerce was a finite and measured

extension from the prior reading that cut off the statute's

application with the transaction that brought the gun into

the State. The principle espoused in this case to support the

conviction of petitioner, by contrast, ts an unlimited and

irrational extension of the tederal statute.

Plainly. this presents an important question of federal

law that has not been, but should be settled by this Court.

No reported decision of any federal court supports the

conclusion reached by the courts below. In L’nited Srates v.

Craven, 478 F. 2d 1329 (oth Cir. 1973). cert. denied. 414

U.S. 866, the Sixth Circuit sustained a conviction under

Section 922(h). The gun in that case was lost by a police

officer in Kentucky on April 12, 1971. A witness saw a gun

that looked like this weapon in defendant's possession in

Ohio ten days later. And, on April 30. 1971, eighteen days

after the gun's loss, defendant was arrested with the gun in

his possession in Ohio. The Court of Appeals found this

evidence sufficient to prove that the commerce requirement

of the statute had been met. The court noted that there had

been no significant passage of time between the interstate

transportation and the time of defendant's possession. The

court also noted that there had been no intervening in-

trastate transactions. 478 F.2d at 1334-1335.

The Court of Appeals for the Eighth Circuit. on different

tacts. held that the commerce requirement had not been

proved. In United States v. Ruftin. 490 F.2d 557 (8th Cir.

1974), the Eighth Circuit reversed a conviction under

Section 922(h). The gun in question had been stolen from

an interstate shipment in July 1971. At the time of the

theft. the gun had been in the possession of a carrier in

Illinois. The gun was found in defendant's possession in

Missouri on February 23, 1972. seven months later. In

reversing defendant's conviction. the Eighth Circuit

compared the proof that has been held to sati.fy the

commerce requirement in other federal criminal statutes.

The court cited four cases in which convictions had been

affirmed on proof of facts showing that the defendants had

purchased the articles in the first intrastate sale after in-

terstate transportation. Lacking evidence connecting the

—* 12

defendant in Ruffin with the “final step” or “final link” in

the interstate transportation, the Court of Appeals reversed

the conviction.

Both decisions are fully consistent with this Court's

holding in Barrett.

Neither Barrett nor Craven, which upheld convictions

under Section 922(h), involved intrusion into intrastate

transactions beyond the first retail sale. Those decisions

cannot support conviction of the petitioner in this case.

Moreover. affirmance by the court below of the conviction

of petitioner is flat!y in conflict with the reversal of the

conviction in Ruffin.

The record in this case suggests that the hesitance of the

Government to prosecute under Section 922(h) has been

altered by this Court's decision in Barrett. The Govern-

ment’s unjustifiably expansive reading of this Court's

decision presents the possibility of a considerable number

of prosecutions based on the most ephemeral connection

with some remote interstate transportation. It is obviously

desirable for this Court to give definition to the outer reach

of Section 922(h) promptly.

The Court has already agreed to a comparaole action

with respect to Section 1202(a). Lower federal courts could

not agree on the breadth of the commerce requirement

which was held to apply by this Court in Bass. Accordingly.

the Court granted the writ of certiorari to review United

States v. Scarborough, F.2d (4th Cir. 1976).

cert. granted, No. 75-1344, October 4, 1976.

The issues presented by Section 922(h) have always been

influenced by the interpretation of Section 1202(a). While

Scarborough is before the Court for better understanding

of the Title VII provision, it is fitting and appropriate for

the Court to consider the overlapping section in Title IV.

13

2. The indefinite expansion of Section 922(h) by the

courts below raises a serious question of the con-

stitutionalit, of this provision under the Commerce Clause.

The basis in the Constitution for Congressional enact-

ment of Section 922(h) of the Omnibus Crime Control and

Safe Streets Act is the Commerce Clause of Article I.

Section 8(3). While the commerce power as construed by

this Court is quite broad, it is not without limits. The

indefinite expansion of Section 922(h) on the principle

adopted by the courts below poses a serious and un-

precedented question under the Commerce Clause.

The statement of the principle that underlies the con-

viction in this case reveals the constitutional issues: If an

object has ever moved in interstate commerce, Congress

has the power to make receipt of that object by anyone a

federal crime without regard to the time elapsed after the

interstate transportation, without regard to the number or

character of the intrastate transactions that preceded the

receipt in question, and without regard to whether the

person charged knew or had reason to know of the in-

terstate transportation.

None of the recent decisions by this Court upholding

statutes under the Commerce Clause have contemplated so

indefinite an extension of federal power. See, e.g.. Frv v.

United States, 421 U.S. 542 (1975); California Bankers

Ass nv. Shultz, 416 U.S. 21 (1974); Perez v. United States,

402 U.S. 146 (1971); Katzenbach v. McClung, 379 U.S.

294 (1964); Heart of Atlanta Motel, Inc. v. United States.

379 U.S. 241 (1964); United States v. Sullivan, 332 U.S.

689 (1948).

It is, of course, common practice to interpret statutes to

avoid raising constitutional doubts. There is no evidence in

the legislative history of Section 922(h) to suggest that

14

Congress intended to stretch the provision to the con-

stitutional perimeter. The interpretation of Section 922(h)

by the courts below goes well beyond the defined limits of

the commerce power. If that interpretation is followed,

there is no avoiding a serious and unprecedented question

under the Commerce Clause.

3. The interrelationship of the two “receipt” offenses in

Titles 1V and VII of the Omnibus Crime Control and Safe

Streets Act, in light of the judicial constructions of the

separate provisions, poses a difficult and important

problem of two statutes that are essentially identical but

with grossly disparate authorized punishments.

In the history of application and interpretation of the

“receipt” offenses of Section 922(h) and Section 1202(a).

efforts to carve out significant independent areas of ap-

plication have failed. This Court's decision in United States

v. Buss, supra, substantially reduced the potential scope ot

Section 1202(a) by requiring that every case have a proven

nexus with interstate or foreign commerce. This Court's

decision in Barrett v. United States, supra, marginally

expanded the scope of Section 922(h) by permitting at least

the first intrastate retail transaction to come within that

provision. The courts below have further broadened

Section 922(h)'s purview, certainly to the outer limits of

Section 1202(a).

The result is that two sections in the same Act make

criminal the receipt of firearms or ammunition by persons

convicted of serious offenses. The ambiguity that this result

creates is intolerable. On the one hand, it creates a

discretion in the prosecutor to select the two year federal

offense or the five year federal offense as the basis for an

indictment. Such unfettered discretion permits arbitrary

and capricious decisions. No system of criminal justice can

1S

permit the different al between a two year offense or a five

year offense to rest 01 such a flimsy basis.

Moreover, even the federal courts have no guidance in

the statutes, as they have been construed, that will justify

use of the more severe provision in one case and the more

lenient in another. The existence of such a legislatively

created ambiguity calls for application of the’ well

recognized principle of lenity. United States v. Bass, supra,

Rewis v. United States, 401 U.S. 808 (1971); Bell v. United

States. 349 U.S. 81 (1955).

Affirmance by this Court of a conviction under Section

922(h) in Barrett v. United States, supra, is not a

foreclosure of this issue. The only question addressed by

the Court was the interpretation of that section in light of

its language and legislative history. There was no decision

on the intolerable existence in the same Act of two

essentially identical criminal statutes with grossly disparate

punishment authorizations.

Two decades ago, this Court granted certiorari when it

appeared that a similar problem had arisen under the

Internal Revenue Code. The problem was satisfactorily

resolved, however, by the conclusion of this Court that the

two provisions operated on independent and non-

overlapping circumstances. Achilli v. United States. 353

U.S. 373 (1957).

The problem is as important and difficult in 1977 as it

was in 1957. There is no possibility to construe the two

“receipt’’ offenses to have mutually independent spheres of

application. The issue is once again posed whether a

principle of lenity shall be used to correct the legislative

malformation.

4. The prosecutorial behavior in this case. seeking and

obtaining an indictment under Section 922(h) after

16

petitioner failed to accept the prosecutor's offer of a plea

bargain to the original indictment under Section 1202\a).

represents such a flagrant example of the possibility of

vindictiveness as to demand relief under the Due Process

Clause. or at the very least to call for this Court to exercise

its power of supervision.

This Court is fully familiar with the problem of potential

vindictiveness by prosecutors through the state

prosecutions that have come before the federal courts

through federal habeas corpus proceedings. The most

recent example is Blackledge v. Perry, 417 U.S. 21 (1974).

In such cases, this Court has established a prophylactic

rule under the Due Process Clause of the Fourteenth

Amendment. The Court does not require that there be an

actual showing of vindictive prosecutorial behavior. The

mere potential of such behavior in circumstances where a

defendant is exercising rights under state law is enough to

require constitutional protection.

A stronger case is presented in the prosecution of this

petitioner. It is, of course, a federal and not a state

prosecution. Therefore, not only do the Due Process

constraints of the Constitution apply, but the officials

involved are also subject to the supervisory powers of this

Court.

The prosecutor has attempted to justify the obtaining of

a “superseding indictment” under Section 922(h) on the

decision by this Court in Barrett v. United States, supra.

That version of the events does not really explain the

peremptory letter sent by the prosecutor demanding an

answer to the plea bargain offer within a few days, since it

is not clear that this letter came after news of the Barrett

decision reached Philadelphia. Nonetheless, the important

fact is that the prosecutor without any new information

~—zJ,

17

concerning petitioner's offense unilaterally upgraded the

offense charged after petitioner tailed to accept an offer of

a plea bargain. The sequence of such events unmistakably

shows the potential for vindictiveness. “The prosecutor has

— it.” Hayes v. Cowan. ——F2d—— (CA6) 1230.

Petitioner's claim tor relief raises a question appropriate

for this Court's review. It is grounded on the Constitution.

What has transpired is a departure from the accepted and

usual course of criminal prosecutions that calls for this

Court to exercise its power of review.

CONCLUSION

For the reasons advanced in this petition. it is

fully submitted that the petition for writ of certiorari

should be granted.

Respectfully submitted.

JACOB KOSSMAN

Attorney for Petitioner

APPENDIX

2. ee ee oe

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APPENDIX A—JUDGMENT ORDER OF COURT OF

APPEALS FOR THE THIRD CIRCUIT

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 76-2252

UNITED STATES OF AMERICA

v.

CHARLES GOODROE,

Appellant

(D.C. Crim. No. 75-747)

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF PENNSYLVANIA

Submitted Under Third Circuit 12(6)

February 25, 1977

Betore FORMAN, GIBBONS and ROSENN, Circuit

Judges

David W. Marston, United States Attorney

Walter S. Batty. Jr. Asst. United States Attorney

Chief. Appellate Division

Wallis W. Wetlesen, Asst. United States Attorney

3310 United States Courthouse

601 Market Street

Philadelphia, Pennsylvania 19106

Attorneys for Appellee

2a

Leon H. Kline, Esquire

1201 P.S.F.S. Building

12 So. 12th Street

Philadelphia. Pennsylvania 19107

Attorney for Appellant

JUDGMENT ORDER

in this appeal from a judgment of sentence on a con-

viction under 18 U.S.C. §922th) defendant Goodroe

contends:

1. That the superseding indictment should have

been dismissed

(a) for prosecutorial misconduct in seeking it in

retaliation for the rejection of a tendered plea

bargain;

(b) because a change in the government s

prosecution policy with respect to 18 U.S.C. App.

$1202\a)(1) violated his right to equal protection.

>. That the application of $922 in this case violates

the ex post facto clause of the Constitution

3. That a 18 U.S.C. $922 offense was not proved.

But see Burrett v. United States, 423 U.S. 212

(1970)

4. That 18 U.S.C. §$922th) is unconstitutional as

beyond the Congressional commerce power.

We find no merit in these contentions.

it is therefore ORDERED and ADJUDGED that the

judgment of the district court is affirmed.

s’ John J. Gibbons

Circuit Judge

Attest

s’ Thomas F. Quinn

Thomas F. Quinn, Clerk

Dated: FEB 28 1977

By the Court,

4a

APPENDIX B—ORDER OF UNITED STATES

DISTRICT COURT OF THE EASTERN DISTRICT OF

PENNSYLVANIA

UNITED STATES OF AMERICA

VS.

CHARLES GOODROE

CRIMINAL ACTION

NO. 75-747

ORDER

NOW. August 12, 1976. upon consideration of the

motion of defendant for judgment of acquittal, in arrest of

judgment, or for a new trial, and the memoranda of law

submitted. IT IS ORDERED that the motion is DENIED:

detendant shall report for sentencing on September 13.

1976 at 9:30 A.M., Courtroom 12A.

s Daniel H. Huzitt

J.

Sa

APPENDIX C—INDICTMENT

REJC:LJS:jr 18 U.S.C. App.

#75-3190 §$1202(a)(1)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

y

CHARLES GOODROE

CRIMINAL NO. 75.747

VIOLATION: Unlawful receipt of a firearm.

FILED: DEC 91975

INDICTMENT

COUNT!

THE GRAND JURY CHARGES:

Sometime after February 13. 1974. in the Eastern

District of Pennsylvania. CHARLES GOODROE., having

previously been in the Court of Common Pleas for Mont-

gomery County convicted of a felony, i.e.. burglary.

larceny and receiving stolen goods. did knowingly and

unlawfully receive and possess a firearm. in commerce and

affecting commerce, to wit: a Harrington & Richardson.

.32 caliber Revolver. Mode! 732. Serial Number AL6937.

In violation of Title 18. United States Code Appendix

Section 1202(a)(1).

A TRUE BILL:

s Elaine M. Koza

FOREMAN

s’ Robert E.J. Curran

ROBERT EJ. CURRAN

United States Attorney

7a

APPENDIX D—SUPERSEDING INDICTMENT

REJIC:WWW::vtr

File 75-3190

IN THE UNITED STALES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v

CHARLES GOODROE

CRIMINAL NO. 75-747

Unlawful receipt of a firearm

Filed: February 24. 1976

SUPERSEDING INDICTMENT

COUNT!

THE GRAND JURY CHARGES:

Sometime after February 13, 1974, in the Eastern

District of Pennsylvania, CHARLES GOODROE, having

previously been convicted of a crime punishable by im-

prisonment for a term exceeding one year, i.e., burglary.

larceny and receiving stolen goods in the Court of Common

Pleas for Montgomery County, did knowingly and

unlawfully receive « firearm which had been shipped or

transported in interstate commerce, to wit: a Harrington &

Richardson, .32 caliber Revolver, Model 732, Serial

Number AL6937.

In violation of Title 18. United States Code, Section

922th).

A TRUE BILL:

FOREMAN

ROBE: E. J. CURRAN

UNITED STATES ATTORNEY