Petition — Cecil v. United States

| Supreme Court, U. S,

FILED

APR 10 1978

IN THE SUPREME COURT OF THE UNI STATES

MICHAEL RODAK, JR., CLERK

Term, 1978

" 77-1433

ROY LEE CECIL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

4PHE SUPREME COURT OF THE UNITED STATES

Kenn Bradley

Attorney for Petitioner

4815 S. Harvard #138

Tulsa, Oklahoma 74135

TABLE OF CONTENTS

Opinions Below. .....cewceccccccseces

JUTisdiction. ..ccccccccccccccccccces

Statute Involved... ..csecccccscscces

Questions Presented......ccecceseces

Statement Of CASE... cece cccccccccce

Reasons for Granting Writ...........

a | a a ee... ee.

COMPEMERRS 4. ck 6 bbnnd 6666 LOK 6OCE HOC OO

Appendix Pry rT Tre. Tr TT Terre App. A-1

Appendix Deocccceessececececsecceooses App. B-1

TABLE OF CASES

Holt v. U. S. 404 F.2d 914, cert.

denied 89 S.Ct. 872, 393 U.S. 1086

21 L.Ed.2d779, rehearing denied 89

S.Ct. 967, 22 L.Bd.20570.....cccccee 5

Moran v. U. S. 404 Fed.2d 663....... 6

Taylor v. United States 334 Fed.2d

cl oe eee ee ee ee 6

IN THE SUPREME COURT OF THE UNITED STATES

APPENDICES

Opinion of the United States Court

of Appeals Tenth Circuit of March 10,

oo e*eee#ees e*eneeeses eeeeee#ee#es# App. A-1 Term, 1978

Judgment Order of the United States No.

District Court for the Northern

District of Oklahoma of November

Be AFTEccccccccsccecsccesesessene eee App. B-l

ROY LIE CECIL,

STATUTES AND FEDERAL RULES

Petitioner,

Federal Rules of Criminal Procedure

Rule 32(c) (2), 18 GoeBeCoBe cccesecsoces 2

vs.

Title 18, i xo ys ee ee 2

Federal Rules of Criminal Procedure UNITED STATES OF AMERICA,

Rule SOC) Ch dc cc ceweeteestueeeens ene 2

Respondent.

Title 21, U.S.C. §841(a)(1) & §846... 2

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE UNITED STATES

To the Honorable Chief Justice and Asso-

ciate Justices of the Supreme Court of

the United States:

Roy Lee Cecil, the petitioner herein,

prays that a Writ of Certiorari issue to

review the judgment of the United States

Court of Appeals, Tenth Circuit, entered in

ii 1

the above entitled case on March 10, 1978.

OPINIONS BELOW

The opinion of the United States Court

of Appeals, Tenth Circuit, is reported 76-

2134, and is printed in Appendix A hereto,

infra, page A-l. The judgment of the Unit-

ed States District Court for the Northern

District of Oklahoma is printed in Appendix

B hereto, infra, page B-l.

JURISDICTION

The judgment of the United States Court

of Appeals, Tenth Circuit, was entered on

March 10, 1978. The jurisdiction of the

Supreme Court of the United States is in-

voked under:

l. Federal Rules of Criminal Procedure

Rule 32(c)(2), 18 U.S.C.A.

2. Title 18, U.S.C. §3577.

3. Federal Rules of Criminal Procedure

Rule 32(c)(1).

STATUTE INVOLVED

Title 21, U.S.C. §84l(a)(1) and §846

_ —

QUESTIONS PRESENTED

1. To determine whether Trial Court

committed reversible error in overruling

Petitioner's “Motion to Quash Arrest and

to Suppress Evidence."

2. To determine the sufficiency of the

evidence upon which a conviction was based

in this case.

STATEMENT OF CASE

In the early morning hours of June 21,

1976, Petitioner was arrested by Federal

Agents and local police officers for suspi-

cion of being involved in a conspiracy to

distribute illegal drugs. Thereafter, on

July 13, 1976, Petitioner was charged in

Count I of a five-count indictment with the

crime of conspiracy to distribute non-nar-

cotic controlled dangerous substances in

violation of Title 21, United States Code,

Section 841l(a) (1).

On July 22, 1976, Petitioner entered his

plea of not guilty to Count I of the in-

dictment. On July 27, 1976, Petitioner

filed his "Motion to Quash Arrest and to

Suppress Evidence" along with his support-

ing brief. On August 20, 1976, after hear-

ing svgumente of counsel, the trial court

overruled Petitioner's motion, and the case

was scheduled for jury trial.

On September 20, 1976, after three days

of trial, the jury selected in this matter

returned a verdict finding the Petitioner

guilty as charged in Count I of the in-

dictment. Thereafter, on November 3,

1976, Petitioner was sentenced to serve a

term of four and one-half years in the cust-

ody of the United States Attorney General

and given a ten-year special parole eect.

On November 3, 1976, Petitioner initiated

this appeal by filing his “Notice of Appeal"

with the Clerk of the District Court for the

Northern District of Oklahoma.

.

REASONS FOR GRANTING WRIT

1. To determine whether trial court

committed reversible error in overruling

Petitioner's "Motion to Quash Arrest and

to Suppress Evidence." :

2. To determine the sufficiency of the

evidence upon which a conviction was based

in this case.

The arrest of Petitioner in this case

was made without a warrant. In order for

officers to arrest without a warrant, there

must be reasonable grounds to believe that

Petitioner had committed or was committing

a felony. HOLT v. UNITED STATES 404 F.2d

914, certiorari denied 89 S.Ct. 872, 393

U.S. 1086, 21 L.Ed. 24779, rehearing denied

89 S.Ct. 967, 22 L.Ed.24570.

To constitute "reasonable grounds" or

“probable cause" for arrest, it must be

shown that at the time the officer makes

the arrest, the facts and circumstances

within his knowledge and of which he had

reasonable trustworthy information are of two fifty-dollar bills improperly ob-

sufficient to warrant a prudent man in tained and improperly admitted into evi-

believing that the offense is being or dence over Petitioner's objection. Since

has been committed by the suspect. MORAN the evidence against Petitioner was only

v. UNITED STATES, 404 Fed.2d 663, and [ slight, the improper admission of Govern-

TAYLOR v. UNITED STATES, 334 Fed.2d 386. | ment's Exhibit No. 4 certainly requires

In this case, officers suspected Peti- | the reversal of the judgment and sentence

tioner of aiding and abetting in the sale rendered herein.

of drugs. This suspicion was based on the Even with Government's Exhibit No. 4,

hearsay statements of a third party relayed the evidence presented against Petitioner

to officers by their confidential informant, in the trial of this cause is still insuf-

Mr. Fisher, plus Petitioner's association | ficient to support the judgment and sentence

with other people who themselves were under rendered herein. All of the evidence pre-

suspicion. Despite the fact that the offi- sented against Petitioner is circumstantial

cers genuinely suspected that Petitioner and does not exclude every reasonable hypo-

was engaged in the commission of a felony, theses inconsistent with guilt. It clearly

such suspicion does not constitute probable appears that the judgment and sentence ren-

cause, and a warrantless arrest based upon dered herein should be reversed, and the

— ore eee

such suspicion is unlawful. indictment dismissed, and this Petition

for Writ of Certiorari should be granted.

Respectfully submitted,

CONCLUSION

Government's Exhibit No. 4 consisting

Kenn Br

Attorney for Petitioner

4815 S. Harvard #138

Talsa, Oklahoma 74135

6 | 7

PROOF OF SERVICE

I hereby certify that I served a full,

true and correct copy of the Petition for

Writ of Certiorari and Appendices attached

thereof to the United States Attorney for

the Northern District of Oklahoma, Federal

Bldg., Tulsa, Oklahoma, and to the Solici-

tor General of the United States, Washing-

ton, D.C. 20543.

nn Bradley

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

RANDY LEON MANZER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

MICHAEL STEPHEN WEDEL,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

GARY WAYNE THOMAS,

De fendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROY LEE CECIL,

De fendant-Appellant.

me ee ee ee ee ee ee

me ee ee ee ee ee ee

mee ee ee ee ee ee ee i ee ed

No.

No.

No.

76-2131

76-2132

76-2133

76-2134

APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF OKLAHOMA

(D.C. No. 76-CR-98)

Submitted: January 27, 1978

Kenneth P. Snoke, Assistant United States

Attorney (Nathan G. Graham, United States

Attorney, and Ben F. Baker, Assistant

United States Attorney, on the brief),

for Plaintiff-Appellee.

Kenn Bradley, Tulsa, Oklahoma, for Defendants-

Appellants Manzer, Thomas and Cecil.

Steven A. Gall, Denver, Colorado, for De-

fendant-Appellant Wedel.

Before SETH, DOYLE and LOGAN, Circuit Judges.

DOYLE, Circuit Judge.

This is an appeal from convictions of

the four defendants-appellants on several

counts of possession and distribution of

drugs. Count I of the five-count indict-

ment charged all four appellants, Randy

Leon Manzer, Michael Stephen Wedel, Gary

Wayne Thomas, and Roy Lee Cecil, with con-

App. A-2

spiracy to possess and distribute metham-

phetamine and secobarbital, both Schedule

II non-narcotic controlled substances, in

violation of 21 U.S.C. §§ 841(a)(1), 846

(1970). A fifth defendant, George Robert

Wedel, was also named in this count, but

was granted a severance and is not part of

this appeal.

Count II charged Michael Wedel with dis-

tributing approximately twenty-nine grams

of methamphetamine, in violation of 21

U.S.C. §841(a) (1).

Count III charged Randy Manzer with dis-

tributing approximately 3220 tablets of

secobarbital, in violation of 21 U.S.C.

§841(a) (1).

Count IV charged Gary Thomas with pos-

essing with intent to distribute various

controlled substances, in violation of 21

U.S.C. §841(a) (1).

Count V charged Randy Manzer with pos-

App. A-3

sessing with intent to distribute 9977

tablets of secobarbital, in violation of

21 U.S.C. §841 (a) (1).

A jury trial was had before Judge Cook.

All four appellants were convicted on all

counts and were given substantial sentences.

In late May 1976, Mike Fisher, a drug

dealer and user acting as a paid government

informer, sought out appellants Manzer and

Wedel, and informed them that a man named

"Curtis" who was in fact Norman Grayson,

an undercover Drug Enforcement Agency offi-

cer, had a large amount of money, which he

wished to spend on drugs. Fisher persuaded

appellant Manzer to obtain some methamphe-

tamine from his “Uncle Gary."

On June 1, 1976, at noon, Fisher traveled

with Manzer and Wedel to a drive-in restaurant.

From there, Manzer went alone in Fisher's

car to 847 East 52nd Place North in Tulsa,

Oklahoma, Thomas' residence, where he re-

App. A-4

mained for about thirty minutes before

returning to Wedel and Fisher. Shortly

after 7:00 p.m. on June 1, 1976, Manzer

and Wedel drove to a convenience store,

where Wedel remained while Manzer went to

847 East 52nd Place North. Manzer then

returned to the convenience store, and

drove with Wedel to Fisher's residence.

Wedel then joined Officer Grayson in ano-

ther vehicle, and handed him a magazine

containing 29 grams of methamphetamine.

Officer Grayson paid Fisher $900, and Fish-

er paid Manzer and Wedel.

On June 4, 1976, Arrangements were made

to sell 3000 secobarbital tablets to Offi-

cer Grayson. Fisher and Manzer drove to

North Tulsa. Manzer then drove alone to

847 East 52nd Place North, remained there

for thirty minutes, and returned to pick up |

Fisher. Manzer gave Fisher a brown paper

bag, which Fisher turned over to Officer

Grayson. The bag contained 3220 secobar-

bital tablets.

On June 20, 1976, arrangements were made

for Officer Grayson to buy another 10,000

tablets of secobarbital. Manzer met Fisher

at a parking lot in Tulsa. Manzer was driv-

ing a red pickup truck that had been seen at

847 East 52nd Place North. Manzer did not

have any drugs at this time, but told Fisher

that this was a “dry run" and that there

would be counter-surveillance. Manzer then

drove to 847 East 52nd Place North, remained

there about thirty minutes, and then drove

the red pickup truck to a parking lot where

he was to meet Fisher again. The pickup

truck was followed by a Thunderbird driven

by appellant Cecil. Manzer showed Fisher

some pills, which he said were those ordered

by Officer Grayson. Fisher then advised a

Drug Enforcement Agency officer that Manzer

had the pills and that the Thunderbird dri-

ven by Cecil, which was parked nearby, was

being used for counter-surveillance. After

Manzer thew a bag containing 10,000 seco-

barbital tablets out the window, officers

arrested him and Cecil. Officers then went

to 847 East 52nd Place North, entered forci-

bly, and arrested those present, including

appellant Thomas. The following day the

premises were searched pursuant to a warrant.

Officers found papers indicating that appel-

lants Thomas and Cecil, and several other

persons, resided there, and some secobarbi-

tal tablets.

All four appellants claim that it was

error for the trial court to refuse to in-

struct the jury on the issue of entrapment.

They argue that, when first contacted by

Fisher, Manzer had not been involved in the

drug business for several years, and had no

desire to get involved in it again. Fisher

had to go to some effort to persuade Man-

zer to sell the drugs. Fisher told Manzer

that his wife was ill, and that he needed

the money he would make from the drug

sales to help her.

The Supreme Court has held that entrap-

ment is available as a defense “when the

criminal design originates with the offi-

cials of the government, and they implant

in the mind of an innocent person the dis-

position to commit the alleged offense and

induce its commission in order that they may

prosecute." Sorrells v. United States, 287

U.S. 435, 442 (1932). It was said in that

case that it was permissible for government

of ficers to afford the defendant the opport-

unity to commit the crime. This definition

has been approved in this Circuit. See

United States v. Gurule, 522 F.2d 20, 23

(10th Cir. 1975), cert. denied, 425 U.S.

976 (1976). The principal issue in a case

in which the entrapment defense is asserted

is whether the defendant was predisposed to

commit the crime. See United States v.

Russell, 411 U.S. 423, 433 -(1973). If the

prosecution can establish this predisposi-

tion, the defense of entrapment is not

available. Hampton v. United States, 425

U.S. 484, 488-89 (1976). If there is con-

flicting evidence on whether entrapment

occurred, the question is one for the jury.

Once the defendant has introduced enough

evidence to raise the issue, the burden

rests on the government to prove beyond a

reasonable doubt the absence of entrapment.

Gurule, supra, at 23-25.

Undercover activity on the part of law

enforcement officials is a necessary part

of enforcing drug control laws. The Sup-

reme Court has recognized that the only

practicable means of detecting drug-related

offenses is to infiltrate drug rings, and

that this requires gaining the confidence

of the suspected criminals. See United

States v. Russell, 411 U.S. 423, 432 (1973).

Drug traffic is a “prime example" of a type

of criminal ‘activity for which strategem or

deception is needed and permitted for this

reason. Lewis v. United States, 385 U.S.

206 (1966).

The appellants in the present case con-

tend that Manzer was reluctant to deal in

drugs, and had to be persuaded by the infor-

mant, Fisher, to go along with them. But

this is not unusual. Officer Grayson was

an unknown customer seeking to buy a large

quantity of drugs. Under such circumstances,

most drug dealers would be hesitant at first.

See United States v. Pearson, 483 F.2d 809,

811 (9th Cir. 1973). Some persuasive efforts

by the government agents or informants must

therefore be tolerated.

The question cf entrapment is normally

one for the jury. However, the trial court

may be refused, to instruct on it if there

is no evidence to support the defense. See

App. A-10

Hdloway v. United States, 432 F.2d 775,

776 (10th Cir. 1970); Munroe v. United

States, 424 F.2d 243, 245 (10th Cir. 1970)

(en banc); Garcia v. United States, 373 F.2d

806, 808-809 (10th Cir. 1967) (dictum).

In this case, there is no evidence that the

activities of Fisher and Officer Grayson

went beyond providing an opportunity to

commit a crime that the defendants were

already willing to commit. The claim that

Manzer was not involved in drug dealing at

that time is contradicted by a transcript of

a tape recording of a telephone call between

Manzer and Fisher, introduced into evidence,

in which Manzer refers to sales he is making

to other customers. In addition, the uncon-

tradicted facts show that Manzer knew exact-

ly where to go to obtain the large quantity

of drugs involved in this case, and had no

difficulty completing the transactions.

This contradicts his claim that he was no

App. A-1ll

longer involved in the business.

The remaining three appellants, Wedel,

Thomas and Cecil, all denied their involve-

ment in the transaction. The law of this

Circuit is that a defendant who denies the

transaction constituting the crime is not

permitted to take the inconsistent position

that he was entrapped. See Munroe v. Uni-

ted States, 424 F.2d 243, 244 (10th Cir.

1970) (en banc); United States v. Freeman,

412 F.2d 1181, 1183 (10th Cir. 1969).

None of these defendants testified, and

none presents any claim that either Fisher

or Officer Grayson put any pressure on them

to commit the crimes.

All four appellants challenge the suffi-

ciency of the evidence on the grounds that

it was largely circumstantial. The use of

circumstantial evidence is not reversible

error, because circumstantial evidence is

not necessarily any less reliable than

~~

testimonial evidence. See Holland v. Uni-

ted States, 348 U.S. 121, 129-40 (1954).

All four appellants argue that the admis-

sion into evidence of two fifty-dollar bills

found in the possession of appellant Cecil

at the time of his arrest, was error because

the bills were not properly identified. The

bills were properly identified by the testi-

mony of Officer Shannon of the DEA, who

testified that they were in Cecil's posses-

sion at the time of his arrest, and that

their serial numbers matched those of two

fifty-dollar bills used by Officer Grayson

to make the June 4 secobarbital purchase.

All four appellants assert that it was

error for the trial court to admit into

evidence the transcripts of certain recor-

ded telephone conversations. At the trial,

the attorney for appellants, Manzer, Thomas

and Cecil objected to the admission of the

transcripts on the ground that they had been

App. A-13

altered... The attorney did not state what

portions of the transcripts were inaccur-

ate; nor does any appellant elaborate on

this objection in the briefs. No other

grounds for objection was raised at trial;

indeed, it was the objecting attorney who

Originally asked that transcripts (accur-

ate ones) be provided the jury.

Appellant Cecil claims that it was error

to deny his motion to quash his warrantless

arrest and to suppress the evidence seized

in the subsequent search. Cecil's arrest

took place after the arrest of Manzer on

June 20, 1976. Cecil was driving a Thunder-

bird that escorted the red pickup truck dri-

ven by Manzer when he delivered the 10,000

secobarbital tablets to be sold to Officer

Grayson. The Thunderbird was parked rear

the scene of the would-be sale. Manzer had

told Fisher that there was to be counter-

surveillance. These facts clearly establish

App. A-14

probable cause for the arrest. The search

was lawful as pursuant to a legal arrest.

Appellant Thomas claims that it was re-

versible error to deny his motion to quash

the search warrant for his residence, 847

East 52nd Place North, and to suppress the

evidence seized in the search. The search

was made the day after the arrests of Man-

zer, Wedel and Cecil. It was made pursuant

to a search warrant. The affidavit in sup-

port of the warrant relies on information

provided by a confidential, reliable infor-

mant and on surveillance of the premises to

be searched. There was clearly probable

cause for the issuance of the search war-

rant, and the fruits of the search were

properly admitted at the trial.

Appellant Wedel claims that several pieces

of evidence were improperly admitted: The

first is Government's Exhibit 18, a photo-

graph of a pickup truck with Manzer, Fisher

and Grayson. The appellant argues that

the photograph was not properly identified

at trial. The testimony of Officer Gray-

son was sufficient to identify this exhibit.

It was properly admitted.

Next, Wedel objects to the admission of

Exhibit 2, which consisted of about 3000

pills and a glass vial containing white

powder. The objection is that the white

powder was not identified. Officer Gray-

son testified that the pills were the ones

thrown out of the pickup truck in a bag by

Manzer. He did not know what the white pow-

der was. A chemist for the DEA testified

that the pills contained secobarbital. He

was not asked about the white powder. It

is apparent from his testimony, however,

that after completing his analysis, he put

the powder originally contained in the bag

into the glass viet At any rate, the amount

of powder was very small, and there was no

App. A-16

testimony as to what it was. If there

was any error, it was harmless. Moreover,

although there was an objection to the ad-

mission of Exhibit 2 at trial, it was not

on the ground presently asserted.

Wedel objects also to the admission of

Exhibit 6, consisting of pills recovered

in the search of appellant Thomas' residence.

His ground is that they were not properly

identified due to the government's failure

to show chain of custody. The government's

showing of chain of custody was sufficient,

and there was no error.

Wedel also appeals from the admission of

Exhibits 14 and 15, a notebook and list of

names seized from Thomas’ residence, on the

ground that they were not identified. There

is no merit to this claim.

Wedel finally argues that it was error to

admit Exhibit 12, a receipt for methampheta-

mine, or "speed" on the grounds that it was

irrelevant and improperly identified. There

is no merit to either contention.

Since there was no error, the judgment

of the trial court should be affirmed.

The judgment is affirmed.

App. A-18

UNITED STATES DISTRICT COURT FOR

NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

vs. ) Docket No.

) 76-CR-98

)

ROY LEE CECIL, )

Defendant. )

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the

government the defendant appeared in person

on this 3rd day of November, 1976 with his

counsel Kenneth Bradley, retained.

There being a verdict of guilty defend-

ant has been convicted as charged of the

offense of having violated T. 21, U.S.C.,

Sections 846 and 84l(a)(1), as charged in

Count One of the Indictment.

The Court asked whether defendant had

anything to say why judgment should not be

pronounced. Because no sufficient cause

to the contrary was shown, or appeared to

the Court, the Court adjudged the defendant

guilty as charged and convicted and ordered

that: The defendant is hereby committed to

the custody of the Attorney General or his

authorized representative for imprisonment

for a period of Count One - Four and one-

half (4 1/2) years. It is further ordered

that the defendant is sentenced to a special

parole term of Ten (10) years, to commence

at the expiration of the sentence of confine-

ment imposed herein.

s/U. S. Magistrate

11-3-76