Petition — Peterson v. United States

upreme Court, U. &

FILED

No. 77 1 2 9 3 MAR 15 1978

TAEL RODAK, JR., CLERK

In the

Supreme Court of the United States

Ocroser Term, A.D. 1977

JAMES AUGUSTUS PETERSON, SR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT

CHARLES A. BELLOWS

One IBM Plaza

Chicago, IIlinois 60611

Attorney for Petitioner

UNITED STATES LAW PRINTING co., CHICAGO, ILLINOIS 60618 (312) 525-6581

— gy —fj oe

— 2 ern mtene

PAGE

3 NEE le a Oren 1

f 1 ‘a * 1

Questions Presented for Revi 2

Statement of the Cases i 2

Reasons for Granting the Writ 6

Appendix 1—Opinion of the District Court App. 1

Appendix 2—Unpublished Order of the Court of

% App. 8

CITATIONS

Blair v. United States, 250 U.S. 273 (1919) 8

Durbin v. United States, 221 F. 2d 520 (D.C. Cir. 1954) 10

Hale v. Henkel, 201 U.S. 43 (1906) 11

Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646. 6

Hoffman v. United States, 341 U.S. 479 (1951) 0... 11

In re September, 1971 Grand Jury, 454 F. 2d 580 . — 11

MeNabb v. United States, 318 U.S. 332 (1943) 12

Sorrels v. United States, 287 U.S. 435 (1932) —

United States v. Archer, (2 Cir. 1973), 486 F. 2d 670... 6

United States v. Dionisio, 410 U.S. 1 (1973) 8

United States v. Fisher, 455 F. 2d 1101 (2d Cir. 1972) 8

United States v. Reifsteck (8 Cir. 1976), 535 F. 2d

1030 6

United States v. Russell, 411 U.S. 423 (1973) . 7

Weeks v. United States, 232 U.S. 383 (1914 12

Wong Sun v. United States, 371 U.S. 471 (1963) 12

Wood v. Georgia, 370 U.S. 375 (1962) - 8

Iu the

Supreme Court of the United States

No.

Ocroser Trem, A.D. 1977

JAMES AUGUSTUS PETERSON, SR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT

Petitioner, James Augustus Peterson, Sr., prays that a

Writ of Certiorari be issued to review the judgment of

the United States Court of Appeals for the Seventh Circuit,

entered in this cause on December 13, 1977.

Opinion Below

The opinion of the Court of Appeals is unpublished.

Jurisdiction

The judgment of the Court of Appeals was entered on

December 13, 1977. A timely Petition for Rehearing was

filed, and was denied on February 15, 1978. The jurisdiction

of this Court is invoked under Title 28, United States Code,

Section 1254(1).

Question Presented for Review

Whether the use by the Government of a grand jury

witness and the subpoena issued to that witness, to bait.

the petitioner into committing the offense of obstruction

of justice was such outrageous conduct on the part of the

Government as to require the suppression as evidence of

the statements made by the petitioner and/or the acquittal

of the Petitioner under this Court’s supervisory powers.

Statement of the Case

Petitioner James A. Peterson was charged in a single

count indictment with obstructing justice, a violation of

Title 18, United States Code, Section 1508. The indict-

ment, returned on August 5, 1976 in the United States Dis-

tric Court for the Northern District of Indiana, alleged

in substance that in and about September, 1975, to the

date of the return of the indictment, a grand jury em-

paneled and sworn in the United States District Court for

the Northern District of Indiana was conducting investi-

gations into possible illegal gambling activities, and that

one William Frank Newman had been subpoenaed as a

witness before that grand jury.

The indictment further charged that on or about Janu-

ary 8, 1976, and on or about January 27, 1976, James

Peterson endeavored to influence William Newman to

falsely testify before the grand jury that, ‘‘Peterson had

nothing to do with Newman’s gambling operation; that

Newman could not recall the substance of conversations

he had had with Peterson; that Newman gave no percent-

age of the proceeds of Newman’s gambling operation to

— ee

Peterson; and that Newman had no knowledge of pay-

ments to local police officials.’’

Peterson entered a plea of not guilty to the charge.

Prior to trial he filed a motion to suppress as evidence

certain conversations between him and William Frank New-

man, including conversations of January 8 and January

27, 1976, which had been recorded by government agents.

As grounds for the motion, Peterson contended that the

use of a grand jury subpoena by a government informant

at the instruction of government agents, to induce a dis-

cussion of the informant’s pending grand jury appear-

ance, constituted an abuse of the grand jury process, and

prosecutorial misconduct and that the resultant conversa-

tions should therefore be suppressed.

An evidentiary hearing was held on the motion to sup-

press. The trial court in memorandum opinion found

that the government’s use of the grand jury subpoena was

improper, but denied the motion to suppress the conversa-

tions. The trial court’s opinion is printed at App. 1.

Peterson then filed a motion to dismiss the indictment,

on the ground that the government’s use of Newman as

an informant had violated United States Department of

Justice guidelines. That motion was also denied.

A trial was then had before the Honorable Phil M.

MeNagy, and a jury, and Peterson was found guilty on

the single count of the indictment. His post-trial motions

were denied, and he was sentenced to the custody of the

Attorney General for a period of nine months.

The testimony adduced at the evidentiary hearing on

Peterson’s motion to suppress is summarized in the memo-

randum decision of the District Court denying the motion.

4

In substance, the evidence showed that one William

Newman, an old friend of James Peterson, was approached

by F. B. I. Special Agent Kenneth Freas while incarcerated

in the East Chicago Indiana jail, and questioned about his

knowledge of gambling activities in Lake County, Indiana.

At this time James Peterson was already a target of the

grand jury investigation.

Shortly after this initial contact by the government, and

after he had been released from jail, Newman agreed to

become a government informant. Newman received ap-

proximately $900 per month from the government from

November, 1975, to the time of trial.

Freas had several subsequent meetings with Newman,

and it was arranged that Newman would be ‘‘wired’’ with

an hidden recording device, and would engage defendant

Peterson in conversations concerning gambling in Lake

County.

On September 16, 1975 and on September 23, 1975, con-

versations between Newman and Peterson were recorded

by the government. Transcripts of these conversations

were introduced into evidence at trial as Government Ex-

hibit 4(d), and Government Exhibit 5(d), respectively.

Freas said that he was satisfied with the ‘‘excellent’’

information he had acquired from Newman’s two recorded

conversations with Peterson.

On December 22, 1975, agent Freas caused a subpoena

to testify before the grand jury to be issued to William

Newman. ‘The subpoena was served upon Newman by

Agent Freas on December 23, 1975. On January 8, 1976

Freas again wired Newman, and instructed him to take

the grand jury subpoena to Peterson and to engage him

in conversation about it.

—

Freas testified that the purpose of instructing Newman

to show the subpoena to Peterson was to ‘‘stimulate’”’ a

conversation about the subpoena. A transcript of that

conversation was introduced at trial as Government’s

Exhibit 6(d).

The Department of Justice strike force attorney han-

dling the investigation did not know about the proposed

use of the subpoena by Newman prior to the time that

the talks occurred.

On January 27, 1976, Newman was again wired, and

again sent to engage Peterson in another conversation

concerning his appearance before the grand jury. Freas

instructed Newman to show Peterson a letter he had re-

ceived, continuing his appearance before the grand jury.

A transcript of that conversation was introduced at trial

as Government Exhibit 7(c).

During the course of the hearing on the motion to sup-

press, Newman said that during his conversation with

Peterson on January 8th, Peterson advised him that he

should obtain an attorney, and that he could stand on his

rights under the Fifth Amendment. He said that he could

not recall anything else said to him during the conversation.

Newman said that when he returned to-visit Peterson

on January 27, 1976, they discussed his problems in open-

ing his gambling establishment.

The testimony adduced at the trial tended to prove that

the petitioner did the acts charged in the indictment. The

petitioner did not testify or introduce any evidence in his

own behalf.

Reasons for Granting Writ

This case presents a question which has remained un-

resolved since this Court’s judgment in Hampton v. United

State, 425 U.S. 489, 96 S. Ct. 1646, and presents a con-

flict with a line of decisions in the Eighth Circuit, most

notably United States v. Reifsteck (8 Cir. 1976), 535 F.2d

1030, and the Second Cireuit United States v. Archer (2

Cir. 1973), 486 F.2d 670. That question is whether the

entrapment defense ought to be limited only to those cases

in which there is no predisposition on the part of the de-

fendant to commit the offense or whether in the words of

Mr. Justice Powell, concurring in Hampton whether ‘‘Gov-

ernment over-involvement in areas outside contraband of-

fenses’’ may be sufficient to constitute a denial of due

process requiring the federal courts to exercise their super-

visory power by acquitting defendants who have been the

target of such over-involvement.

A majority of the Hampton court seemed to accept this as

a statement of law although a different majority voted to

affirm the copviction and therefore there has been no con-

trolling decision of this court in such cases.

The majority in Hampton did seem to agree upon a test

formulated variously as ‘‘the outrageousness of police be-

havior in light of the surrounding circumstances’’ in the

words of Mr. Justice Powell, or ‘‘the conduct of law en-

forcement authorities is sufficiently offensive, even though

the individuals entitled to invoke such a defense might be

‘predisposed’ ’’, with words of Mr. Justice Brennan.

In Sorrels v. United States, 287 U.S. 435 (1932), this

Court recognized that the defense of entrapment was

7

available in the federal courts. As refined in subsequent

eases, the defense is available where the alleged offense

is the product of the creative activity of law enforcement

‘authorities, and a predisposition on the part of the de-

fendant to have committed the crime is not established.

See, United States v. Russell, 411 US. 423 (1973).

Here, the criminal offense with which the defendant was

charged was virtually created by the government. The

government issued the grand jury subpoena to New-

man, instructed him to show the subpoena to Peterson,

and to engage him in a conversation about the subpoena.

The government’s admitted purpose in doing so was to

‘‘stimulate’’ a discussion of Newman’s impending grand

jury appearance. By the government’s own admission, it

set out to ‘‘stimulate’’ the conversation which resulted in

the offense of obstructing justice.

Further, examination of the transcript of Newman’s

conversation with Peterson on January 8, 1976 shows that

Newman, acting as a government agent, himself induced

the conversations about the subpoena. When Newman

showed the subpoena to Peterson on January 8, Peterson

initially only advised Newman to obtain an attorney:

. . this is my advice, is ta... don’t talk to 'em until

ya get ya a lawyer. When they come back as the per-

son, you got your subpoena then the next thing you

gonna do you gonna talk to a lawyer.

. „ *

„An that’s your best advice.“

Only after Newman persisted in his conversation with

Peterson did Peterson make the statements which, the

government contended at trial, constituted the offense of

obstruction of justice. The fact that Peterson initially

advised Newman to seek legal advice is clear proof that he

had no predisposition to obstruct justice.

8

The government not only manufactured the opportunity

for the alleged offense to occur, by providing Newman

with a subpoena and instructing him to discuss it with

Peterson, but through its informer Newman pressed the

conversation, after Peterson initially advised Newman to

obtain an attorney, until the subject of the subpoena was

again reached and the resulting conversation which the

government contended was an endeavor by the petitioner

to obstruct justice.

It is in respect to the grand jury and its function that

the outrageousness of the government’s conduct is made

apparent.

The primary purpose of a federal grand jury is to in-

dict persons suspected of having committed crimes. This

is, in fact, the only purpose of the grand jury specified in

the Constitution. The grand jury has, of course, broad

investigative powers so that it may seek information bear-

ing on its decision whether to indict. See Blair v. United

States, 250 U.S. 273 (1919); United States v. Dionisio, 410

U.S. 1 (1973).

Yet the historical function of the grand jury as a buffer

between the citizen and his government continues. The

grand jury is,

% primary security to the innocent against the hasty,

malicious and oppressive prosecution . . . serving the

individual function in our society of standing between

the accuser and the accused.’’ Wood v. Georgia, 370

U.S. 375, 390 (1962).

A prosecutor thus may not use a grand jury, and its

processes, as his private investigative tool, United States

v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972); and abuses

of the grand jury process are not tolerated. Hale v. Henkel,

201 U.S. 43, 65 (1906) (‘‘Doubtless abuses of this power

may be imagined . . . but were such abuses called to the

attention of this Court, it would doubtless be alert to

repress them.’’). See also, United States v. Dionisio, supra,

410 U.S. at 12.

The instant case presents a clear instance of the prose-

cution misusing grand jury processes for its own pur-

poses. Here there was an ongoing grand jury investiga-

tion into illegal gambling activities in Lake County, In-

diana. The government, through F. B. I. Agent Kenneth

Freas, enlisted one William Newman as a paid informant,

and on two occasions in September, 1975, had him wired

with a transmitter and recorder, and instructed him to

engage James Peterson in conversations concerning gam-

bling in Lake County.

In January, 1976, Agent Freas had a grand jury sub-

poena issued to William Newman. Admittedly, Newman

had knowledge of matters relevant to the inquiry of the

grand jury, and the issuance of the subpoena itself is not

challenged. However, after the issuance of the subpoena,

the government outrageously abused the process of the

grand jury. Agent Freas, without the knowledge or permis-

sion of Department of Justice strike force attorney handling

the grand jury investigation, again wired Newman, gave

him the subpoena, and instructed him to take the subpoena

to Peterson and engage him in a conversation about his

coming grand jury appearance.

As admitted by Agent Freas, the purpose of instructing

Newman to show the subpoena to Peterson was to ‘‘stimu-

late“ a conversation about the subpoena, and Newman’s

impending appearance before the grand jury.

10

The grand jury subpoena was thus not used for its

proper and intended purpose of compelling the appear-

ance before the grand jury of one with knowledge relevant

to its inquiry. Rather, it was used as a tool of the prosecu-

tion, in this instance to literally create the offense of ob-

structing justice.

Yet the government was not content with a single abuse

of the grand jury subpoena power. After the conversation

of January 9, 1976 between Peterson and Newman, New-

man received a letter from the government advising him

that his appearance before the grand jury was continued

to late January, 1976. On January 27, 1976 Agent Freas

again wired Newman, and instructed him to show the let-

ter continuing his grand jury apvearance to Peterson and

to engage him in another conversation relating to his

pending appearance.

The trial court itself recognized that the government

abused the grand jury process with its practices. Although

denying the defendant’s motion to suppress as evidence

the conversations of January 8 and January 27 between

Peterson and Newman, the Court said:

This court is of the opinion that the grand jury sub-

poena should not have been used by the United States

as bait in order to encourage the defendant Peterson

to comment on matters then pending before the grand

jury.“

Other courts have also recognized that an abuse of pro-

cess occurs when the prosecution uses a grand jury as a

private investigative tool. In Durbin v. United States, 221

F. 2d 520 (D. C. Cir. 1954), a United S“ ates Attorney caused

a grand jury subpoena to be served upon a defendant.

When the defendant appeared as required by the sub-

11

poena he was not taken before the grand jury, but rather

was questioned in the office of the United States Attorney.

In reversing his subsequent conviction the Court said, at

221 F.2d 522,

It was clearly an improper use of the District

Court’s process for the Assistant United States At-

torney to issue a grand jury subpoena for the purpose

of conducting his own inquisition.“

In In re September, 1971 Grand Jury, 454 F.2d 580, 585,

the United States Court of Appeals for the Seventh Cir-

cuit held that it would be an abuse of the grand jury

process ‘‘for the Government to impose on that body to

perform investigative work that can be, and heretofore

has been successfully accomplished by the regular investi-

gative agencies of Government.“

Clearly there was an abuse of grand jury process, and

the District Court so found. Yet the District Court de-

clined to suppress as evidence the conversations induced

by that abuse of process, characterizing the issue as wheth-

er the abuse of the subpoena amounted to a ‘‘breach of

fundamental fairness.’’

It is respectfully submitted that once the District Court

found an abuse of process, it erred in refusing to suppress

the conversations of January 8 and January 27. Numerous

cases from this Court have recognized that the federal

district courts must supervise the grand juries sitting in

their jurisdiction. Hale v. Henkel, 201 U.S. 43, 65 (1906)

(courts ‘‘would doubtless be alert to repress’’ abuses) ;

Hoffman v. United States, 341 U.S. 479, 485 (1951); United

States v. Dionisio, 410 U.S. 1, 12 (1973). A grand jury

subpoena is the process by which the grand jury fulfills

its investigative function, and as a process of the district

court lies within the ambit of federal court supervision.

fm .

12

As such, the district court has the power, and in fact the

duty, to tailor a remedy where an abuse of that process

has occurred.

The suppression of the conversations of January 8 and

January 27 was the minimal and proper remedy for the

government’s abuse of process. Clearly in the instant situa-

tion, the Petitioner was not in a position to seek to quash |

the subpoena served upon Newman prior to its misuse. He

was able to bring the abuse of process to the attention of

the Court only after it had been revealed during the course

of pretrial discovery that the subpoena has been used to

bait him into an alleged criminal offense.

By refusing to suppress the conversations induced by

the subpoena, the district court permitted the government

to profit from its transgressions. This is a result contrary |

to a long succession of decisions refusing to permit the

prosecution to profit from its wrongs. See, e.g., Weeks v.

United States, 232 U.S. 383 (1914); McNabb v. United

States, 318 U.S. 332 (1943); Wong Sun v. United States, '

371 U.S. 471 (1963).

Suppression of the statements of January 8 and Jan-

uary 27, the ‘‘fruits’’ of the government’s abuse of process,

was the minimum and proper remedy necessary to repress

the government’s abuse of the grand jury process, and to

restore the integrity of this criminal proceeding.

Respectfully submitted,

CuHarLes A. BELLows

Attorney for Petitioner

EI

—

Appendices

APPENDIX 1.

Opinion of the District Court

On December 13, 1976, defendant, by counsel, Charles A.

Bellows, filed motion to suppress certain conversations. An

evidentiary hearing was held on the motion on January

3, 1977. For reasons hereinafter set forth, defendant’s

motion to suppress is DENIED.

The motion to suppress presents two main reasons why

the conversations in question should be suppressed; (1) Use

of a grand jury subpoena by an informant acting under

instructions of government agents, thereby constituting

abuse of federal grand jury process and prosecutorial mis-

conduct; and, (2) That the informant was a willing wit-

ness before the grand jury prior to the time he talked to

the defendant Peterson, which fact was known to the

government, and thus the informant could not be influenced

by anything that the defendant Peterson might say to him.

The Court is of the opinion that a corollary of the second

proposition is the argument that since the informant was a

willing witness before the federal grand jury, the only

purpose in having the witness converse with the defen-

dant Peterson was to gather, perhaps a more apt word is

‘‘originate’’, evidence for possible charges against the

defendant.

The evidence at the hearing developed the following

facts: The informant, William Frank Newman, was ar-

rested on state charges and was being held at the East

Chicago City Jail. While in the East Chicago City Jail,

he was interviewed by F.B.I. agent Kenneth G. Freas. At

a later time, the informant Newman indicated he would

cooperative with the F. B. I. in its ongoing investigation into

gambling in Lake County, Indiana. It was arranged by

the F. B. I. that the informant Newman would be ‘‘wired’’,

App. 2

i.e. a hidden recording device would be attached to his

body, and that a meeting would be arranged with the de-

fendant Peterson at which time the subject of gambling

would be brought up for discussion between the informant

Newman and the defendant Peterson. Conversations were

recorded that took place between the informant Newman

and the defendant Peterson on September 16, 1975, and

September 23, 1975. In the recorded conversation of Sep-

tember 23, 1975, among other things, the defedant Peterson

suggested to the informant Newman that a grand jury

was meeting in Hammond (p. 3); that he was told by a

man to be patient concerning the raids until the grand

jury was over (p. 6); that a lot of people were going to

be subpoenaed because of the thing (grand jury) in Ham-

mond and that he, Newman, might be one of them; that

if he was asked what they were talking about it would

always be trying to buy liquor, ete. (p. 11); that he

(Peterson) would try to get him (Newman) a good front

man and that he (Peterson) would tell them a lie (p. 12);

that he (Newman) might get a subpoena and that he

should not deny that he knows him (p. 13); and, that

Newman should let him know if he gets a subpoena, that

there would be no use in putting a front man out there

now, and after that he (Newman) should stay away for

a couple of weeks or a month (p. 14).

On December 22, 1975, a subpoena to testify before the

grand jury was issued to William Frank Newman ordering

him to appear before the grand jury on the 15th day of

January, 1976; the subpoena was issued pursuant to ap-

plication of the United States and it should be noted that

the name S. A. Gordon Freas’’ appears underneath the

date of issuance. The return on the subpoena shows that

it was served on William Frank Newman on December

App. 3

23, 1975, by Special Agent Kenneth G. Freas. The in-

formant William Frank Newman had another meeting

with the defendant Peterson on January 9, 1976, at which

time their conversation was recorded. It is not disputed

that Special Agent Freas directed the informant Newman

to show the subpoena to the defendant; Peterson; Special

Agent Freas indicated that the purpose of telling the in-

formant Newman to show the subpoena to the defendant

Peterson was to ‘‘stimulate’’ the conversation between the

two men. The testimony of S.A. Freas on this point is as

follows:

Q. That was the idea, wasn’t it, to send him out

with the subpoena and see what Peterson would say;

isn’t that right?

A. I knew the subpoena would be shown to Mr.

Peterson, I knew it would serve as a stimulus to con-

versation.

Q. You mean there would be conversation about it?

A. Yes.

Q. You knew Newman was going to ask Peterson’s

advice about it, isn’t that right?

A. Not necessarily; I didn’t say that.

Q. Well, you expected Newman to ask Peterson for

his advice?

A. I expected Newman to show Peterson the sub-

poena.

Q. Will you answer the question? Ask for his ad-

vice what to do; isn’t that right?

A. I don’t recall giving him any such instruc-

tion, just show aim the subpoena.

It appears that Attorney Charles Wehner, who was a

member of the strike force of the Department of Justice

handling this investigation, did not know about the pro-

posed use of the subpoena by the informant Newman

in his talks with defendant Peterson prior to the time the

talks occurred. Attorney Wehner subsequently did learn

App. 4

about the use of the subpoena in the conversations be-

tween informant Newman and defendant Peterson. The

pertinent part of his testimony on this point is set forth

below:

Q. I didn’t ask you that. I asked you whether or

not the idea was to engage Peterson in a discussion

about gambling!

A. Yes, it was.

Q. You intended to use that information which

could be recorded in any proceedings against Mr.

Peterson; right?

A. The object was at that point in time purely to

gather information.

Q. And use it if necessary for the purpose of prose-

cuting Mr. Peterson?

A. Yes, it could have been, yes.

Q. Now, in addition to just getting information

about gambling, it was also suggested to Newman, or

Newman was instructed to take the Grand Jury sub-

poena and go to Mr. Peterson with it, am I correct?

A. I believe he was. I didn’t give those instruc-

tions. The instructions to Newman were provided by

Agent Freas.

Q. Did you know that Mr. Freas was going to in-

struct Mr. Newman to go to Mr. Peterson with the

Grand Jury subpoena?

A. I didn’t know that. I knew Newman was given

a subpoena prior to the wiring.

Q. Are you telling me, Mr. Wehner, you didn’t

know that Newman was instructed to take the Grand

Jury subpoena that he had received and go to Mr.

Peterson with it and show it to him?

A. He may have been, I don’t know.

Q. You are not aware of that?

A. That is correct. Let me correct that to say I

was not aware at that time. I believe after discussion

with Agent Freas, I know now he was so instructed.

Q. You now know it? ä

A. Ves, at this time. At that time I did not.

——

=——

App. 5

There was a further meeting between the informant New-

man and the defendant Peterson on January 27, 1976; the

grand jury subpoena was not mentioned in that conver-

sation.

A description of the investigative powers of a grand

jury is set forth in U.S. v. Calandra, 414 U.S. 338, 38

L.Ed.2d 561 (1974):

The scope of the grand jury’s powers reflects its

special role in insuring fair and effective law enforce-

ment. A grand jury proceeding is not an adversary

hearing in which the guilt or innocence of the accused

is adjudicated. Rather, it is an ex parte investigation

to determine whether a crime has been committed

and whether criminal proceedings should be instituted

against any person. The grand jury’s investigative

power must be broad if its public responsibility is

adequately to be discharged.

The defendant Peterson is not here questioning the scope

of the grand jury powers to examine into his alleged

gambling activities. The defendant is here claiming that

a grand jury subpoena issued in the name of the grand

jury was improperly utilized for the purpose of developing

a criminal charge against him.

This Court is of the opinion that the grand jury sub-

poena should not have been used by the United States as a

bait in order to encourage the defendant Peterson to com-

ment on matters then pending before the grand jury. As

stated in U.S. v. Fisher, 455 F.2d 1101 (C.C.A.2d 1972),

4. . . the grand jury is not meant to be the private tool

of the prosecutor’’; this could of course include the use of

the legal process of the grand jury, namely the grand jury

subpoena. Thus, in Durbin v. U.S., 221 F.2d 520 (C. C. A.

D.C. 1954), Judge Bazelon reversed a conviction and or-

App. 6

dered the indictment dismissed because the Assistant

United States Attorney had used a grand jury subpoena

to cause a witness to appear at the office of the United

States Attorney, where the witness’s testimony was dis-

cussed, without ever calling the witness before the grand

jury.

On the other hand, the question remains as to whether

the use of the grand jury subpoena by the United States

as set out in the facts hereinbefore recounted amounts

to a sufficient transgression on the part of the law enforce-

ment agents to justify suppressing the conversations. As

this Court sees the issue, it is should the evidence be sup-

pressed as a matter of fundamental fairness.

To begin with, there is no evidence in the record from

which the court would be justified in concluding that the

grand jury subpoena directed to William Frank Newman

was not legally issued. It is true that the United States

Attorney’s Office has almost complete say-so over the issu-

ance of such subpoenas, although technically issued under

the auspices of the United States District Court, and it is

necessary to keep this in mind when considering the pos-

sible dangers from abuses that can arise. In Re Grand

Jury Proceedings, 486 F.2d 85 (C.C.A.3rd 1973). The evi-

dence was to the effect that this was an ongoing grand

jury which, among other things, was investigating gam-

bling in Lake County. Certainly, the informant William

Frank Newman was a witness that could be expected to

appear before the grand jury and the evidence is to the

effect that he did so on January 29, 1976. It is thus reason-

able to conclude that the grand jury subpoena was issued

for the purpose of directing William Frank Newman to

appear before the grand jury: It makes no difference that

an equally strong reason may have existed for the issuance

0 —

App. 7

of the grand jury subpoena, i.e. that the subpoena would be

shown to the defendant Peterson for the purpose of en-

couraging him to possibly incriminate himself.

The use of the grand jury subpoena in this instance can-

not be said to violate any constitutional rights of this de-

fendant. The question really involves whether the use of

the grand jury subpoena in the way in which it was em-

ployed in this instance amounts to a breach of fundamental

fairness. This Court is of the opinion that the true test

to be applied is the one enunciated in U.S. v. Russell, 411

U.S. 423, 36 L.Ed.2d 366 (1973). The issue involved in

that case was one of entrapment, which may possibly be a

defense in this case. At the same time, the majority

opinion recognizes, that the test to be applied is whether

the law enforcement tactic used violated ‘‘fundamental

fairness.’’ Following a reading of the transcripts of the

conversations that occurred on January 16, 1976, and

January 27, 1976, the Court is satisfied that on applying

such a test it would not be justified in suppressing the con-

versations.

The defendant has also raised the issue that since the

informant had already given a full statement, he was not

subject to being influenced by anything that the defendant

said or did. This theory has been rejected in earlier cases.

U.S. v. Rosner, 485 F. 2d 1213, cert. den. 417 U.S. 950, 41

L.Ed.2d 672.

It should be kept in mind that this ruling in no way

is meant to denigrate the defense of entrapment which is in

all respects available to the defendant as a defense in this

case.

Enter: January 10, 1977.

s/ Phil M. McNagny

Judge, United States District Court

App. 8

APPENDIX 2.

Unpublished Order of the Court of Appeals

ORDER

James Augustus Peterson, Sr., defendant - appellant

(hereinafter defendant or Peterson) appeals from a convic-

tion on an indictment charging him with obstructing jus-

tice in violation of 18 U.S.C. § 1503. The indictment alleged

that defendant corruptly endeavored to influence a wit-

ness, William Frank Newman, to testify falsely before

a grand jury which was investigating illegal gambling

and conspiracy by law enforcement officers to facilitate

Ulegal gambling. The indictment further charged that de-

fendant endeavored to influence Newman to testify falsely

that: (1) defendant had nothing to do with Newman’s

gambling operation; (2) Newman could not recall the sub-

stance of conversations had with defendant; (3) Newman

gave no percentage of the proceeds of his gambling opera-

tions to defendant, and (4) Newman had no knowledge of

any arrangements with local police officers.

After entering a plea of not guilty, defendant filed a

motion to suppress as evidence conversations between New-

man and defenedant on January 8, and January 27, 1976.

These conversations had been recorded by a hidden device

attached to Newman’s body. In his motion, defendant

argued that the use of a grand jury subpoena by a govern-

ment informant at the instruction of government agents,

to induce a discussion of the informant’s pending grand

jury appearance constituted an abuse of the grand jury

process and prosecutorial misconduct. The district court

*The Honorable Wilson Cowen, Senior Judge of the United

States Court of Claims, is sitting by designation.

— ee

— —

— — — —ꝑ ＋

App. 9

held an evidentiary hearing on the motion and issued a

memorandum opinion denying the motion to suppress. De-

fendant then filed a motion to dismiss the indictment on

the ground that the government's use of Newman as an

informant violated Department of Justice guidelines, and

that motion was also denied.

The defendant’s contentions present two principal issues

for review. The first of these is that the government’s use

of a grand jury subpoena to induce conversation between

the defendant and an informant concerning the informant’s

pending grand jury appearance was an abuse of the grand

jury process and prosecutorial misconduct; therefore the

trial court erred in refusing to suppress as evidence the

conversations between the defendant and the informant

which were induced by the grand jury subpoena. Defen-

dant’s second ground for reversal is that the evidence

establishes as a matter of law that the defendant was en-

trapped into committing the offense with which he was

charged.

The facts pertinent to the issues before us are summar-

ized as follows: After the informant, Newman, had been

arrested on State charges and was being held in the East

Chicago City Jail, he was interviewed by FBI agent Freas.

He agreed to cooperate with the FBI in its investigation

of gambling in Lake County, Indiana. It was arranged

that a hidden recording device would be attached to New-

man’s body, and that he would meet with defendant and

discuss the subject of gambling. Recordings were made

of conversations between the two on September 16, 1975

and September 23, 1975. In the first of these conversations,

Newman told defendant that Newman had been arrested

and his gambling place closed. Newman said he had talked

about the matter with the commander and a sergeant of

the East Chicago Indiana Police Department. They told

App. 10

him that they could not give him permission to reopen his

gambling establishment. Peterson replied he would speak

with the police and tell them it was okay with him“ if

Newman reopened his place. Peterson also stated that

there had been more raids under the new police chief in

3 years than in the previous 20.

In the conversation of September 23, 1975, Peterson told

Newman that a lot of people would be getting subpoenas

from the grand jury, which was meeting in Hammond,

Indiana; that Peterson would be seen talking with Newman

who would be asked what the conversation was about.

Peterson instructed Newman to state that in their con-

versations, Newman was trying to borrow money to obtain

liquor on credit from Peterson. Defendant emphasized that

Newman might get a subpoena and stated that he should

not deny that he had talked with Peterson. Peterson also

said that Newma would be asked whether Peterson helped

Newman to operate the gambling establishment, and that

Newman would have to say ‘‘no.’’ He also stated that

Newman should let him know if he received a subpoena.

On December 22, 1975, agent Freas caused a subpoena

to be issued which required Newman to appear and testify

before the grand jury on January 15, 1976. Agent Freas

directed Newman to show the subpoena to the defendant,

and in his testimony, the agent stated that the purpose of

instructing Newman to show the subpoena to the defendant

was to stimpulate a conversation about the subpoena. The

Department of Justice strike force attorney in charge of

the investigation did not know about the proposed use

of the subpoena prior to the time that the conversation

between Newman and the defendant occurred. On January

8, 1976, Newman again had a recorded conversation with

defendant. Newman showed defendant the grand jury sub-

App. 11

poena and at that time, defendant advised Newman what

questions he would be asked by the grand jury and how

he should respond. Peterson advised Newman that if he

were questioned about who worked for him in the gambling

operation, Newman was to say he had ‘‘fellows hustling’’

and that Newman did not share the proceeds of the gam-

bling business with anyone; that Newman should testify

that he did not pay police or anyone else anything; that

Newman would be asked about defendant and whether he

or the police got a share of the proceeds, and that Newman

should testify that he knew nothing about it. Newman

should not deny that he talked with defendant, but he was

to say that he could not remember what the conversations

were about. :

Newman appeared at the meeting place of the grand

jury on January 15, 1976 and was recalled for January 29,

1976. On January 27, 1976, he again consented to having

his conversation with defendant monitored and recorded.

During that conversation, defendant told Newman that if

the latter were asked if he was paying money to the police,

Newman had many good reasons to reply that he was

paying nobody. The defendant also said that since Newman

had been raided many times, he should say that if he had

given the police any money, he would not have been raided.

Newman testified before the grand jury on January 29,

1976 and again on March 23, 1976. The government’s evi-

dence at defedant’s trial consisted primarily of Newman’s

testimony and the recorded conversations between Newman

and defendant.

In the memorandum opinion denying defendant’s motion

to support, the district court stated that the grand jury

subpoena should not have been used by the United States

App. 12

‘fas a bait to encourage the defendant, Peterson, to com-

ment on matters then pending before the grand jury.’’ The

court nevertheless reached the following conclusion:

* * * The evidence was to the effect that this was an

ongoing grand jury which, among other things, was

investigating gambling in Lake County. Certainly, the

informant William Frank Newman was a witness that

could be expected to appear before the grand jury

and the evidence is to the effect that he did so on

January 29, 1976. It is thus reasonable to conclude

that the grand jury subpoena was issued for the pur-

pose of directing William Frank Newman to appear

before the grand jury: It makes no difference that an

equally strong reason may have existed for the issu-

ance of the grand jury subpoena, i.e. that the subpoena

would be shown to the defendant Peterson for the

purpose of encouraging him to possibly incriminate

himself.

Although a court has power to correct an abuse or a

misuse of grand jury process, we find that the distret

court’s denial of the motion to suppress here did not con-

stitute reversible error. Durbin v. United States, 221 F.2d

520 (D.C. Cir. 1954), upon which defendant relies is in-

apposite. In that case, the grand jury subpoena was im-

properly used to provide the U. S. Attorney an opportunity

to coerce the defendant, who was later indicted and con-

victed. At the direction of the U.S. Attorney, the defen-

dant in that case was taken to the office of the U.S. At-

torney and there questioned, but was never taken before

the grand jury. The court found that the subpoena there

was used to restrain the defendant’s movements indefinitely

or until he made a statement which was satisfactory to the

Assistant U.S. Attorney, and this was done despite the

fact that the grand jury had recessed. Here, as the district

—— — ä—

App. 13

court found, the subpoena was directed to Newman, a

legitimate witness, rather than to the defendant. Newman

was under process to testify before the grand jury and he

did appear and gave relevant testimony. His appearance

was a necessary step in the investigation conducted by the

grand jury and the subpoena was appropriately issued to

secure his appearance.

We also reject the entrapment defense, which defen-

dant advances as a ground for the reversal of his convic-

tion. As stated in Sorrells v. United States, 287 U.S. 435,

448 (1932), the entrapment defense prohibits law enforce-

ment officers from instigating a criminal act by persons

„otherwise innocent to lure them to its commission and

to punish them.’’ That case was reaffirmed by the Supreme

Court in the recent case of United States v. Russell, 411

U.S. 423 (1973), which held, among other things, that the

principal element in the defense of entrapment is the de-

fendant’s predisposition to commit the crime. As summar-

ized above, the facts of this case clearly show a predis-

position on the part of the defendant to commit the crime

for which he was convicted. Specifically, in the recorded

conversation of September 23, 1975, the defendant made

statements which, without more, establish such a predis-

position. Moreover, as this court has held ‘‘mere solicita-

tion is not enough to show entrapment.’’ United States v.

Perry, 478 F.2d 1276, 1278 (7th Cir. 1973), cert. den. 414

U.S. 1005 (1973). Entrapment is an affirmative defense

and ‘‘the defendant must come forward with evidence of

nonpredisposition and government inducement.’’ United

States v. Hermosillo-Nanez, 545 F.2d 1230, 1232 (9th Cir.

1976). In this case, the defendant failed to meet that

burden.

For the foregoing reasons, the conviction of the defen-

dant is hereby affirmed.