Petition — Wedelstedt v. Iowa

NURAEL ROSAK Ip

: NUUAG, JIA

IN THE ee ae

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1978

EDWARD JOSEPH WEDELSTEDT,

Petitioner,

VS.

STATE OF IOWA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

ARTHUR M. SCHWARTZ, P.C.

ARTHUR M. SCHWARTZ

NEIL AYERVAIS

1500 Western Federal Savings Bldg.

Denver, Colorado 80202

(303) 893-2500

C. A. FRERICHS

616 Lafayette Street

Waterloo, Iowa 50705

(391) 234-7741

i

TABLE OF CONTENTS

Page

Citation to Opinion Below............0...............00..00000.. vas 1

Statement of Jurisdiction _.......... ee 2

Ne ctesccheseresccesscecsss «=

Constitutional Provisions Involved .......................00000005. 2

Statement of Facts .......................... a 3

ee 6

ee cccteccscens | OO

CONSTITUTION AND STATUTES

United States Constitution:

ee scccnseccccsece cai 2 .

9,19

ET CD 2

Ce no cnccscccccccccccesccccsccece 3

EEE 3

Ne coc lodecenscccacccececscese 17

ii

CASE CITATIONS

Page

Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7

RA EE, IN aes cicaiisk ds socicln conacaeiaavminatash 18, 19

Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20

OB re one aE | 12

Masciale v. United Siates, 356 U.S. 386, 78 S.Ct. 827,

Be Bea I I IIT ccsvcanediccnictceeanevientssatidanancesinaeenns 18

Raley v. Ohio, 360 U.S. 428, 79 S.Ct. 1257, 3 L.Ed.2d

BE, SIN csakscrcustntaiccsipiad cies aurea eo 11

Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819,

Fe Rae CM: AIIM ceccisbidsescrvepsclccucsubiorcesemenace 138, 14,

18, 19

Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210,

FT Bi RO CIEE. Die Niccacebtisnedbscndinisnassetarsnine ke 10, 11

State v. Anderson, 38 NW2d 662 (Iowa 1949)............ 17

State v. Mullen, 216 NW2d 375 (Iowa 1974) ............ ae

State v. Overmann, 220 NW2d 914 (Iowa 1974) ........ 6, 7

State v. Wedelstedt, 263 NW2d 894 (Iowa 1978) re-

hearing denied 265 NW2d 626 (Iowa 1978)......1, 6, 7,

8, 9, 16, 17

Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct.

GRG, € LnMG.Bd GEG (TOGO). cmiciscnccstccctccccecclens 11,18

iii

CASE CITATIONS — Continued

Page

Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664,

38 L.Ed.2d 666 (1974) ............ SAS a ER pn RR Po 11,12

OTHER AUTHORITY

Comment Note — Lack of Evidence Supporting State

Conviction of Criminal Offense as Violation of

Federal Due Process, 15 L.Ed.2d 889 (1965) ...... 12

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1978

EDWARD JOSEPH WEDELSTEDT,

Petitioner,

vs.

STATE OF IOWA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

Petitioner prays that a writ of certiorari issue to

re..ew the judgment of the Supreme Court of Iowa en-

tered March 22, 1978, on which rehearing was denied May

17, 1978.

CITATION TO OPINON BELOW

This Petition seeks review of the Iowa Supreme Court

decision in the case of State of Iowa v. Wedelstedt, 263

NW2d 894 (Iowa 1978), printed herein as Appendix A.

Rehearing was denied in an opinion reported as State of

Iowa v. Wedelstedt, 265 NW2d 626 (Iowa 1978) printed

herein as Appendix B.

STATEMENT OF JURISDICTION

The judgment of the Supreme Court of Iowa was en-

tered on March 22, 1978, and the Court subsequently denied

Petitioner’s request for rehearing on May 17, 1978. Juris-

diction to review this judgment by Writ of Certiorari is

conferred on this Court by Title 28, United States Code,

Section 1257 (3). A sixty day stay of the remand was issued

by the Iowa Supreme Court. Notice of this stay is printed

herein as Appendix C. This stay was subsequently extended

for an additional period of thirty days. Notice of this ex-

tension is printed herein as Appendix D.

QUESTION PRESENTED

Was take back entrapment established as a matter of

law so that the submission of charges against Petitioner

to a jury and the affirmance of Petitioner’s conviction

denied him due process of law as guaranteed to him by

the Fourteenth Amendment?

CONSTITUTIONAL PROVISONS INVOLVED

UNITED STATES CONSTITUTION

Amendment XIV

$1. Citizenship defined — privileges of citizens —

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges

3

or immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty or property

without due process of law, nor deny to any person within

its jurisdiction the equal protection of the laws.

STATEMENT OF FACTS

Petitioner was charged with, and convicted by an

Iowa jury, of having violated two provisions of the Iowa

Criminal Code: aiding in concealing stolen goods in viola-

tion of Iowa Code, 1973, $712.1 and of conspiracy to con-

cea! stolen goods in violation of Iowa Code, 1973, $719.1.

The jury rendered its finding of guilt on February 10,

1976. After several post-trial motions were denied, the

trial court sentenced Petitioner to consecutive terms in

prison of five years on the substantive charge and three

years on the conspiracy count. These convictions were

upheld by the Iowa Supreme Court in the opinions which

serve as bases for this Petition.

At trial, the substantial proof against Petitioner, and

the evidence which serves as a foundation for Petitioner’s

claims herein, was provided by a police informer, Thomas

Meade, who had been granted immunity from prosecution

in return for his testimony. The essence of Meade’s testi-

mony is recited in the Iowa Supreme Court opinion re-

printed in Appendix A. While this opinion, for the most

part, accurately recites Meade’s testimony, certain details

on which the Iowa Supreme Court relied were not sup-

ported by the record. This lack of support constitutes the

error complained of and delineated below.

At trial, Meade testified that, in September of 1974, he

stole a valuable collection of classic movie films and trans-

4

ported the stolen property to Cedar Rapids, Iowa, where

he gave it to Petitioner. The following month, criminal

charges were filed against Meade by the State of Iowa

for acts unrelated to the theft of the films. Motivated by

desire to avoid imprisonment, Meade contacted an agent

of the Iowa Bureau of Criminal Investigation (BCI) in

an attempt to secure immunity from the criminal charges

pending against him. In return for immunity from all

crimes committed by him short of murder and perjury,

Meade agreed to work with the BCI to furnish evidence

of crimes committed by Petitioner.

During the time that Meade worked with the BCI,

he wore a transmitter to record conversations with Peti-

tioner. Several recorded telephone conversations between

Meade and Petitioner were received in evidence at Peti-

tioner’s trial.

The testimony critical to the instant Petition con-

cerned events occurring between December 12 and Decem-

ber 15, 1974. During this time, Petitioner was in Las

Vegas, Nevada, and Meade was in Iowa. This testimony

related to an attempt by Petitioner and Meade to sell the

stolen films to a purchaser who had been created by the

BCI. At trial, the direct testimony of these events con-

sisted of the playing of numerous recordings of telephone

conversations between Petitioner and Meade (Transcript

pp. 132-161). After several of these conversations, on

December 15, 1974, Meade took a truck which had been

given to him by the BCI and drove it to Petitioner’s farm

(Tr., p. 168, Appendix E, p. 21). The stolen film was

loaded on this truck, at which time Meade took sole pos-

session of the truck and the films and drove to a rendez-

vous with BCI agents (Tr., p. 169, Appendix E, p. 22).

Meade then arranged for a meeting between the prospec-

5

tive purchaser and an employee of Petitioner named

Gentry. When Gentry and another employee brought these

films to the “purchaser”, they were arrested. Petitioner’s

arrest occurred later.

The most critical testimony concerned whether Meade

had sole possession of the stolen films, whether Petitioner

gave Meade the location of the films and whether he in-

structed Meade to dispose of them on December 15. This

testimony was elicited on cross-examination and is con-

tained in Appendix E. In this testimony, Meade stated

that, between December 13 and December 15, he conducted

several telephone conversations with Petitioner who was

in Las Vegas. Meade stated that he did not know the

location of the films until he was told to get them by

Petitioner and by a Mr. Karr (Tr., p. 196, Appendix FE,

p. 24). Meade stated that this instruction by Petitioner

was contained on one of the tapes admitted into evidence

(Tr., pp. 196-197, Appendix E, pp. 24-26). Meade also

stated that he learned of the whereabouts of the films

not from Petitioner but from Mr. Karr (Tr., p. 197,

Appendix E, p. 25).

Meade testified that he was acting, during this time,

pursuant to the instructions of BCI agents (Tr., pp. 197-

199, Appendix E, pp. 25-29). Further, after having obtained

these films, Meade had them in his sole possession without

the knowledge of Petitioner (Tr., p. 201, Appendix E,

p. 30) and ultimately consigned them to the custody of

the BCI (Tr., p. 198, Appendix E, p. 26).

Meade based his contention that Petitioner had di-

rected him to pick up the stolen films on a telephone con-

versation which occurred on December 15, 1974, and which

6

was admitted as Exhibit H at trial. This transcript is

printed in relevant part as Appendix F.

At the close of the prosecution’s case, Petitioner

moved to dismiss both counts against him based on a

claim that the state’s evidence disclosed as a matter of

law that, based on the Iowa doctrine of “take back” en-

trapment, Defendant had been entrapped into the com-

mission of both of the charged offenses. (Appendix G).

This motion was renewed at the close of all proof and was

denied by the Court ( Appendix H).

On appeal, Petitioner renewed his claim that the trial

court’ erred by refusing to rule that, as a matter of law,

Petitioner had been entrapped. The Iowa Supreme Court,

in upholding Petitioner’s conviction, rejected Petitioner’s

“take back” entrapment claim. State of Iowa v. Wedel-

stedt, 263 NW2d 894 (Iowa 1978), rehearing denied 265

NW2d 626. This rejection serves as the basis for the in-

stant Petition.

REASONS FOR GRANTING THE WRIT

PETITIONER’S CONVICTION, IN THE ABSENCE

OF ANY EVIDENCE NEGATING ENTRAPMENT

AS A MATTER OF LAW, VIOLATES HIS FOUR-

TEENTH AMENDMENT DUE PROCESS RIGHTS.

Throughout the course of the proceedings against him,

Petitioner has maintained that the evidence against him

established entrapment as a matter of law. This claim

was founded on the principle of “take back” entrapment

enunciated by the Iowa Supreme Court in State v. Over-

/

7

mann, 220 NW2d 914 (Iowa 1974). Citing a line of cases

propounded by the Fifth Circuit Court of Appeals, the

Overmann Court held that:

If an accused produces evidence disclosing (1) the

government, through an agent or informer, supplied

drugs to defendant, and (2) the government, through

an agent or informer, later reappropriates any of

those drugs from the accused, then a “take-back en-

trapment” is shown. Under those circumstances the

State must come forth with evidence which contra-

dicts either of the above two elements. Jn event the

State fails to so do then an accused is entitled to

dismissal as a matter of law. If, however, the State

does produce evidence sufficient to create a fact issue

as to a “take-back entrapment” the case should be

accordingly submitted to the jury. See United States

v. Oquendo, 490 F.2d at 164; United States v. Bueno,

447 F.2d at 906.

220 NW2d at 917 (Emphasis supplied).

Petitioner asserted that the State’s own evidence es-

tablished that Meade supplied the stolen films to Petition-

er’s accomplice, Gentry, reappropriated them on December

15 and then returned them to Petitioner’s employees. After

Meade returned the films, the BCI set up a “purchase”

and arrested Petitioners after his employees, Gentry and

Leone, attempted to complete the transaction. The State

responded to this argument by claiming that ‘Meade’s

capacity as a BCI informer at the same time he, as de-

fendant’s agent, executed defendant’s instructions, does

not import the State had possession of the films.” 263

NW2d at 900.

8

In adjudicating this issue the Iowa Supreme Court

stated:

The key question is Meade’s capacity when he took the

films from defendant’s farmhouse to the Cedar Rapids

motel to await Gentry and Leone as they flew in from

St. Louis. Did Meade then have possession of the films

as a BCI agent or did he have possession as defendant’s

agent? Id.

The Court answered this question as follows:

On the record we believe Meade was acting under

consistent instructions both from defendant and from

the BCI. Under the circumstances a factual issue was

generated. The jury was clearly entitled to find the

government never came into possession of the goods

at the critical time as a result of Meade’s involve-

ment. It was in no way prejudicial to defendant to

submit the question to the jury. Jd. at 900-901.

The Court’s holding that Meade, in taking possession

of the films, was acting pursuant to instructions from

both Petitioner and the BCI was founded on its factual

determination that:

On December 15, 1974, defendant, from Las Vegas,

told Meade to go to defendant’s farm outside Cedar

Rapids where the films were located. Jd. at 897.

Petitioner, in seeking a rehearing, challenged the fac-

tual basis for this finding. Petitioner argued that the

record failed to support such a finding and asked the Court

to specify the portion of the record supporting the chal-

lenged finding of fact. In response, the Court stated:

<=

9

In view of the agency relationship existing between

defendant and Meade the finding complained of is

perhaps of not controlling importance. In any event

the evidence, taken in the light most favorable to the

verdict, discloses the jury could have made such a

finding. It is elementary the jury is at liberty to

take and reject from the testimony of various wit-

nesses as it chooses.

Defendant testified that he ‘got’ the location of the

films when both a Mr. Karr and defendant told him

to go there. Meade testified his belief the tape record-

ing of the phone conversation would disclose this. (Tr.,

pp. 196-197) Defendant cannot rely on the tapes to

withdraw this testimony. The tapes were at parts

inaudible. Moreover the jury could believe Meade was

right in his testimony but wrong in his stated belief

the conversation was recorded on the tape. 265 NW2d

at 627.

It is Petitioner’s contention that, in these opinions,

the Iowa Supreme Court created an issue of fact where

none existed in the record. Because the evidence pre-

sented by the State established entrapment as a matter

of law and because no evidence was presented to refute

this entrapment, Petitioner’s conviction violated his due

process rights as guaranteed to him by the Fourteenth

Amendment to the United States Constitution. The ques-

tion of entrapment should never have been submitted to

the jury. That jury’s finding of guilt belies the Iowa

Supreme Court’s gratuitous contention that “it was in no

way prejudicial to defendant to submit the question to the

jury.” 263 NW2d at 901.

The decision of the Iowa Supreme Court violates pre-

10

cepts established by this Court in two lines of cases.

Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77

L.Ed. 413 (1932) represents the seminal case in the first

line of relevant authority. In Sorrells, this Court first

recognized and sustained the validity of the entrapment

defense. In exploring the foundation of this defense, the

Sorrells Court created the so-called “subjective-objective”’

dichotomy. The majority opted for a subjective approach,

one which focuses on the conduct and propensities of each

defendant so that only the ‘unwary innocent” will be pro-

tected. The objective approach promoted by the Sorrells

concurrence disregards a defendant’s intent and focuses

on the nature of police conduct. Pursuant to the objective

approach, no matter what a defendant’s record or criminal

animus, courts should not countenance certain police con-

duct whose existence is deemed detrimental to society.

Both tests for entrapment may prompt a trial court

to find entrapment as a matter of law. However, this limi-

tation on the role of a jury is greater where the objective

test is utilized than where the subjective test, which in-

volves factual questions concerning a defendant’s mental

state, is used. A ruling under the objective test, as Mr.

Justice Roberts urged in the Sorrells case, being aimed at

blocking off areas of impermissible police conduct, is con-

signed to the court and not the jury:

The protection of its own functions and the preserva-

tion of the purity of its own temple belongs to the

court. It is the province of the court and of the court

alone to protect itself and the government from such

prostitution of the criminal law. The violation of the

principles of justice by the entrapment of the unwary

into crime should be dealt with by the court no matter

11

by whom or at what stage of the proceedings the facts

are brought to its attention.

287 U.S. at 457 (separate opinion).

This critical role entrusted to trial and appellate courts

under the objective entrapment test is important and con-

trolling herein because the Iowa Supreme Court, in State

v. Mullen, 216 NW2d 375 (Iowa 1974) adopted that test

as the law of Iowa.

While this Court is generally loath to interfere with

a state court’s enforcement of its own doctrines, its opin-

ions have also demonstrated an alacrity in assuring that

such doctrines are enforced in a manner which does not

violate due process of law. See, e.g. Raley v. Ohio, 360 U.S.

423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). This is espe-

cially so in those cases in which this Court has reversed

state court convictions which it found to be unsupported

by the trial court record. In Thompson v. City of Louis-

ville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960),

the initial decision in this second line of relevant precedent,

this Court held that a conviction on charges “totally devoid

of evidentiary support” constitutes a violation of the Four-

teenth Amendment Due Process Clause. The Thompson

Court required that all elements of a charged offense be

supported by the evidence. Jd. at 204. Later, this Court

made it manifest that:

It is beyond question, of course, that a conviction based

on a record lacking any relevant evidence as to a

crucial element of the offense charged would violate

due process. Vachon v. New Hampshire, 414 U.S. 478,

480, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974) quoting

12

Harris v. United States, 404 U.S. 1232, 12338, 92 S.Ct.

10, 30 L.Ed. 425 (1971) (Opinion in Chambers)

(emphasis supplied).

Accord, Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713,

20 L.Ed.2d 838 (1968). See generally, Comment Note —

Lack of Evidence Supporting State Conviction of Criminal

Offense as Violation of Federal Due Process. 15 L.Ed.2d

889 (1965).

These two lines of authority coalesce in the instant

case to require the granting of this Petition. As is readily

apparent from the decisions of the lowa Supreme Court,

Petitioner’s conviction rested entirely on a finding that

the evidence presented a factual question as to Meade’s

role in taking possession of the stolen films and redeliver-

ing them to Petitioner’s employees. If the record demon-

strates that Meade was under the sole control of the BCI,

take back entrapment was established as a matter of law.

If, as the Iowa Supreme Court held, the record presents

a question of fact as to whether Meade was acting pur-

suant to concurrent instructions by Petitioner and by the

BCI, the charges against Petitioner were properly sub-

mitted to the jury.

Initially, the believability and logic of the Iowa

Supreme Court’s statement that “Meade was acting under

consistent instructions both from defendant and from the

BCI” is suspect on its face. At every step in the disposition

of the films, Meade was acting as a BCI puppet. The record

manifests Meade’s constant contact with and instructions

from the BCI. The BCI provided him with a truck onto

which he was to load the films (Tr., p. 196, Appendix E,

p. 24). Meade took samples of the films to the BCI before

13

taking sole possession of them (Tr., p. 197, Appendix E,

p. 25). The BCI told Meade where to park the truck after

he had obtained the films and watched the truck while

Meade conferred with BCI agents (Tr., p. 198, Appendix

K, p. 26). As such, the BCI itself took possession of the

films, exclusive of Meade’s activity. BCI agents directed

Meade to call Petitioner and direct him to a specific rendez-

vous point (Tr., pp. 199-200, Appendix E, pp. 27-30). At’

this time, Petitioner had no knowledge of the films’ loca-

tion (Tr., p. 201, Appendix E, p. 30).

It cannot be seriously argued that, if Petitioner had

given Meade instructions contrary to those given by the

BCI, Meade would have obeyed Petitioner. This concept of

dual agency was rejected by this Court in Sherman v.

United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848

(1958). There, the Government contended that it should

not be bound by the actions of an informant, Kalchinian,

who had undertaken to entrap Defendant. This Court, in

firmly rejecting this characterization, stated:

The Government cannot disown Kalchinian and insist

it is not responsible for his actions. Although he was

not being paid, Kalchinian was an active government

informer who had but recently been the instigator of

at least two other prosecutions. Undoubtedly the im-

petus for such achievements was the fact that in 195]

Kalchinian was himself under criminal charges for

illegally selling narcotics and had not yet been sen-

tenced.

In his testimony the federal agent in charge of the

case admitted that he never bothered to question

14

Kalchinian about the way he had made contact with

petitioner. The Government cannot make such use of

an informer and then claim disassociation through

ignorance. 356 U.S. at 373-375 (Emphasis supplied)

(footnote omitted).

Just as in Sherman, the government agent in the instant

case was operating under the threat of criminal charges.

The fact that Meade, unlike the Sherman informer, was

operating pursuant to explicit police instructions makes

this Petition a more compelling matter than that on which

this Court predicated its reversal in Sherman. Even absent

such precedent, common sense dictates a rejection of any

theory making Meade an agent for both the BCI and for

Petitioner. The record makes manifest his true allegiance.

Such a creative doctrine cannot provide critical evidence

which is not present in the record.

Even accepting, arguendo, the Court’s dual agency

theory, a review of the record further discloses that the

critical fact on which the Iowa Supreme Court relied —

Petitioner’s order that Meade pick up the films — is, in-

deed, missing from the record. In an involved record of

a four-day trial, the Iowa Supreme Court could cite only

one sentence to create a question of fact for the jury. The

passage on which the Court below relied was a statement

by Meade, made not on direct but on cross-examination,

one immediately contradicted by him and one impeached

by the very tape recording on which it relied. On direct

examination, Meade never claimed that Petitioner had

ordered him to pick up the films. Instead, the State relied

entirely on transcripts of telephone conversations between

Petitioner and Meade. Nowhere in these transcripts was

any such order contained.

15

Later, on cross-examination, Meade stated:

Q. Well, how did you happen to get to that location

of the films? Did somebody tell you to go there?

A. Yes, Mr. Karr did and Mr. Wedelstedt.

And did Mr. Wedelstedt tell you that on the tapes?

I believe so. I told him that I was going out there.

I told him I had the truck and I was taking it out

there to meet with him, so we did discuss it on

the tapes.

(Tr., pp. 196-197, Appendix E, p. 25)

(Emphasis supplied).

Immediately thereafter, Meade contradicted himself:

Q. And at least from the night you told him you were

going to, Mr. Wedelstedt never told you where

the tapes were at?

Where the films were?

You learned this from Mr. Karr?

Yes.

You learned that on Saturday night?

we SUP

I learned it on Sunday morning. Saturday night,

Mr. Karr said, ‘Meet me out there.’ I didn’t know

where the films were.

(Tr., p. 197, Appendix E, p. 25)

(Emphasis supplied) .

16

The transcript which Meade believed corroborated his

testimony and on which the State relied on direct examina-

tion was introduced as Exhibit H and is reprinted, in rele-

vant part, as Appendix F. Not only does this tape of their

Sunday morning conversation not support Meade’s claim,

but it contradicts his testimony:

Meade: My feelings — why should I tell the guy

to forget the deal? I know, you know,

the guy’s here with the money and I got

the film.

Defendant: You don’t know where that films at.

Meade: Huh? Who don’t know where it’s at? I’ve

got it all. You better call Dale and check.

( Appendix F, pp. 33-34)

(Emphasis supplied).

This transcript bespeaks only one reading. Petitioner be-

lieved that Meade did not know the location of the stolen

films. Meade informed Petitioner that he (Meade) not only

knew the location but actually had the films in his posses-

sion. It strains credulity to believe that Petitioner would

order Meade to pick up films which Meade already had in

his possession.

The Iowa Supreme Court, in assessing this evidence

stated:

Defendant testified that he ‘got’ the location of the

films when both a Mr. Karr and defendant told him

to go there. Meade testified his belief the tape record-

ing of the phone conversation would disclose this (Tr.,

17

pp. 196-197). Defendant cannot rely on the tapes to

withdraw this testimony. The tapes were at parts

inaudible. Moreover the jury could believe Meade was

right in his testimony but wrong in his stated belief

the conversation was recorded on the tape. 265 NW2d

at 627.

This holding ignores the clear record and constitutes an

abandonment of the Court’s duty under an objective en-

trapment test. The State produced the transcripts and, as

such, vouched for their validity. These transcripts were in-

troduced as a recording of the complete conversation be-

tween Meade and Petitioner. Further, the inaudible por-

tions occur in sections unrelated to a discussion of moving

the films.

Moreover, allowing a jury to believe that such inau-

dible portions might support Meade’s testimony violates

principles of law and of logic. The audible portions clearly

demonstrated that, at a time when Petitioner was supposed

to have orderdd Meade to pick up the films, Meade already

had possession of them without Petitioner’s knowledge.

Allowing a jury to use the inaudible portions to corroborate

Meade’s testimony violates the presumption of innocence

accorded Petitioner, as well as the presumptions of caution

with which Iowa jurors are required to treat accomplice

and informer testimony. See Iowa Code, 1973, $782.5, State

v. Anderson, 38 NW2d 662 (Iowa 1949).

Although this Court will not upset a state court deter-

mination where some evidence is present to support it, two

cases demonstrate that, where such evidence is inherently

incredible, this court will act to protect a Defendant from

a due process violation.

18

In Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7

L.Ed.2d 207 (1961), a defendant, in appealing his state

court conviction for disturbing the peace, claimed that the

conviction was unsupported by the evidence and, therefore,

violated his due process rights under Thompson v. Louis-

ville, supra. The appeal devolved into a question of whether

any evidence existed to prove that Defendant had acted “in

such a manner as to unreasonably disturb or alarm the

public.” One witness, the manager of the store in which

Defendant had staged a protest, had testified that he had

called police because he feared such a disturbance. 368 U.S.

at 171.

Despite this Court’s claim that it will not test the

sufficiency of evidence in a state court proceeding, Thomp-

son v. Louisville, swpra, at 191, the Garner court totally

rejected this testimony as “completely unsubstantiated by

the record.” 368 U.S. at 171. Having detailed the other

evidence which impeached the manager’s testimony, the

court held:

Under these circumstances, the manager’s general

statement gives no support for the convictions within

the meaning of Thompson v. Louisville (US) supra.

Id. at 172.

Similarly, in Sherman v. United States, supra, this

Court held that the question of entrapment should not have

been submitted to the jury despite the Government’s claim

that the jury could have interpreted Defendant’s caution

not as the absence of predisposition to commit the crime

but “as the natural wariness of the criminal.” 356 U.S.

at 375. Cf. Masciale v. United States, 356 U.S. 386, 78 S.Ct.

827, 2 L.Ed2d 859 (1958). Thus, where, as here, the record

discloses limited, unsubstantiated evidence which a state

19

court has used to create a jury question, this Court will

act to vouchsafe a state defendant’s due process rights and

review that record.

It must be granted that an entrapment claim based

on a state law doctrine presents many reasons for this

Court’s refusal to intervene. Certainly, the record reveals

that Petitioner is not an unwary innocent or a civil rights

protestor. The record manifests his illegal motives. None-

theless, where state courts establisi a legal doctrine, they

must enforce such a precept uniformly without regard to

whether that person who asserts it is “good” or “bad.”

Here, the Iowa Supreme Court, in thoroughly-reasoned

decisions, adopted the objective test for entrapment and

embraced the doctrine of “take back” entrapment. It then

found an unpopular defendant attempting to utilize these

theories. Rather than uniformly applying the law to this

Petitioner, the court below sought, and found, gossamer

evidence in the record to uphold his conviction. Petitioner

now asks that this Court, as it did in Garner and Sherman,

review these rulings and guarantee him due process and

uniform enforcement of the law under the Fourteenth

Amendment.

20

CONCLUSION

For the reasons detailed above, Petitioner respectfully

requests that, pursuant to this Court’s supervisory power,

this Petition be granted.

Respectfully submitted,

ARTHUR M. SCHWARTZ, P.C.

ARTHUR M. SCHWARTZ

NEIL AYERVAIS

1500 Western Federal Savings Bldg.

Denver, Colorado 80202

(303) 893-2500

C. A. FRERICHS

616 Lafayette Street

Waterloo, Iowa 50705

(391) 234-7741