Petition — Bower v. United States

MICHAEL ROBAK, JR_cLERK

IN THE

Supreme Court of the United States

OCTOBER TERM. 1977

Case No.: 28-506

CHARLES FREDERICK BOWER,

Petitioner,

ae

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

RAY SANDSTROM of

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale, FL 33301

Telephone: (305) 467-6767

SPOS NILE 8S RIEL NEP

INDEX

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

1. When there is no evidence of any predis-

position to commit a cnme and the defen-

dant established that a paid government

informant. after many efforts covering

several months. created a circumstance

resulting in a single cocaine prosecution,

the defendant was entitled to an acquittal

by reason of entrapment especially when

the defense was prohibited from fully

developing his defense relating to the

informant both pretrial and during trial by

the rulings of the trial court.

.

2. That the submission of the firearms charge

to the jury. when the carrying of a con-

cealed firearm in one’s own dwelling house

constitutes no offense to State law, but

the defendant was charged with violating

federal gun laws, so prejudiced the defen-

dant so as to deny him a fair tral.

CONCLUSION

(i]

PAGE

4-7

17

INDEX Continued

APPENDIX

5

Cases:

The decision of the Court of Appeals

Fifth Circuit

A.1—A.12

Petition for Rehearing

1-4

TABLE OF AUTHORITIES

Alford v. United States,

282 U.S. 687 (1931)

Bruno vy. United States,

(1939) 308 U.S. 294. 60

S. Ct. 200

Chambers v. Mississippi,

410 U.S. 284 (1973)

Clingan v. United States,

400 Fed.2d 869 (Sth Cir. 1968)

Davis v. Alaska,

415 U.S. 308 (1974)

Fla. Stat. 790.07(2)

Fla. Stat. 790.25(3)(n)

French vy. State,

279 So.2d 317 (4 Fla. DCA 1973)

PAGE

9

.7

16

16

Table of Authorities Continued

Gerstein v. Pugh,

420 U.S. 103 (1975)

Gregory v. United States,

369 Fed.2d 185 (CADC 1966)

Hampton vy. United States,

425 U.S. 484, 96 S.Ct. 1646, 48

L.E.D. 2d 113 (1975)

Kotteakos v. United States,

382 U.S. 750 (1946)

Lopez-Hernandez v. United States,

394 Fed. 2d 820 (9th Cir. 1968)

Michelson v. United States,

335 U.S. 469 (1948)

Peoples v. State,

287 So.2d 63 (Fla. 1973)

Perkins v. United States,

526 Fed.2d 688 (Sth Cir. 1976)

Pierce v. United States,

414 Fed.2d 163, 165 (Sth Cir.),

cert. denied 396 U.S. 960 (1969)

Roviaro v. United States,

353 U.S. 53, (1957)

Schaffer v. United States,

362 U.S. 511 (1960)

[iii]

PAGE

Table of Authorities Continued Table of Authorities Continued

PAGE PAGE

Scher v, United States, 14 United States v. Ramirez, 18

305 U.S. 251 (1938) 482 Fed.2d 807 (2nd Cir. 1976) cert.

denied 414 U.S. 1070 (1973)

Sherman v. United States, 12

356 U.S. 359 (1958) United States v. Rivero, 18

532 Fed. 2d 450 (Sth Cir. 1976)

Smith v. Illinois, 13

390 U.S. 129 (1968) United States v. Russell, 8

411 U.S. 423, (1973)

State v. Winters, 19

346 So.2d 991 (Fla. 1977) United States v. Soria, 18

519 Fed.2d 1060 (Sth Cir. 1975)

tu

United States v. Bower,

5757 Fed. 499 (Sth Cir. 1978) Williamson v. United States, 9

311 Fed. 2d 441 (Sth Cir. 1962)

United States v. Bueno, Z

447 Fed. 2d 903 (Sth Cir. 1971)

United States v. Gaskin, 19

320 U.S. 527 (1944)

United States v. Groessell, }2

440 Fed.2d 602 (Sth Cir. 1971)

United States v. Groessell, 12

440 Fed. 2d 602, 606 (Sth Cir.) cert.

denied 403 U.S. 933 (1971)

United States v. Howard, 18

504 Fed.2d 1281 (8th Cir. 1974)

United States v. Puma, 2

548 Fed.2d 903 (Sth Cir. 1977) :

[iv] [v]

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

Case No:

hit ee

CHARLES FREDERICK BOWER,

Petitioner,

Vs—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Petitioner, Charles Frederick Bower. seeks to have this

Court issue its Writ of Certiorari to the United States Court

of Appeals, Fifth Circuit, to review the decision of that Court

affirming the conviction of Petitioner which occurred before

the United States District Court for the Southern District of

Florida.

;

:

y

v

OPINION BELOW

, The decision of the Court of Appeals is reported in United

States v. Bower, 575 F.2d 499 (Sth Cir. 1978) and is contained

in the Appendix to this Petition atAl-12,A timely Petition for

Rehearing was denied on 23 August 1978, a copy appears in the

Appendix atA13.A Stay of Mandate has been filed by Petitioner

on or about 31 July 1978. To date, no action has been taken on

said Motion for Stay of Mandate by the Appeals Court. As this

Petition for Writ of Certiorari is jurisdictional, Petitioner files

same without any action on the Stay of Mandate.

JURISDICTION

The judgment of the United States Court of Appeals was

entered on 19 June 1978. The jurisdiction of this Court to

review the decision uf the Court of Appeals is involved pursuant

to Title 28 USC § 1254(1).

QUESTIONS PRESENTED

WHETHER THE PETITIONER WAS EN-

TITLED TO EITHER AN ACQUITTAL BY

REASON OF ENTRAPMENT OR WAS

DENIED A FAIR TRIAL SO AS TO MAN-

DATE REVERSAL WHERE THERE WAS

NO EVIDENCE OF ANY PREDISPOSI-

TION TO COMMIT THE OFFENSE AND

THE PETITIONER ESTABLISHED, BUT

WAS FRUSTRATED IN THE PREPARA-

TION AND CONDUCT OF HIS DEFENSE

THROUGH THE RULINGS OF THE

TRIAL COURT WHICH PREVENTED HIS

DEVELOPING THE TRUE AND FULL

CIRCUMSTANCES RELATING TO THE

FACT THAT A PAID GOVERNMENT

INFORMANT, AFTER MANY EFFORTS

COVERING SEVERAL MONTHS OF

to

to

PERSUASION, CREATED A CIRCUM-

STANCE RESULTANT IN A SINGLE

COCAINE TRANSACTION FOR WHICH

PETITIONER WAS PROSECUTED.

WHERE THE CARRYING OF A CON-

CEALED FIREARM BY A HOMEOWNER

IN HIS OWN DWELLING HOUSE CON-

STITUTES NO OFFENSE, IS THAT

POSSESSION OF A FIREARM MADE

UNLAWFUL MERELY BECAUSE THE

HOMEOWNER MAY POSSESS COCAINE

WITH THE INTENT TO DELIVER THE

SAME, ESPECIALLY WHEN THE FIRE-

ARM PLAYS NO PART IN THE AFORE-

MENTIONED OFFENSE, AND WHE-

THER THE TRIAL COURTS SUBMIS-

SION OF THIS COUNT TO THE JURY.

AFTER THE MAGISTRATE DISMISSED

SAID CHARGE, SO PREJUDICED THE

PETITIONER SO AS TO REQUIRE

RETRIAL.

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT FIVE

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

crime, unless on a presentment or indictment of a Grand Jury, except in

the Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be

a witness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for public

use, without just compensation.

AMENDMENT SIX

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor, and to have the assis-

tanee of Counsel for his defense.

STATEMENT OF THE CASE

A. HISTORY

On 30 August 1976, the Defendant was arrested and on

the following day appeared before the magistrate where the

Complaint was presented. Bond was set and the Defendant re-

leased. The preliminary hearing occurred on 16 September 1976.

On 5 October 1976, an Indictment was returned in two

Counts, the first charged a possession with intent to distribute

cocaine and the second charged the Defendant did distribute

cocaine. On 15 October 1976, arraignment occurred and there-

after the government filed a superseding indictment charging

Petitioner with a firearms violation.

After Petitioner filed pretrial Motions, an evidentiary

hearing was set for 24 February 1977, on the Motion to Sup-

press and to Dismiss. The District Judge referred the motions

pursuant to Title 28 USC § 636(b) to the magistrate for hearing

and recommendation.

The magistrate made report to the court upon the motion

to suppress and upon the motion to dismiss after hearing. In the

former the magistrate noted the government announced it

would “not seek to introduce” anything taken from the Defen-

dant’s residence except that received from the Defendant

(cocaine) by the agent or taken from the person of the Defen-

dant at the time of arrest. In the latter, the motion to dismiss,

the magistrate ruled that the motion as addressed to the third

count be granted. That third count was the only thing added

by the superseding indictment. the remainder of the indictment

Wus the same.

The prosecution noted an intention to appeal that ruling

to the District Judge; and it did so on 15 March 1977.

On 18 November 1976, the Defendant filed a further

motion for disclosure of Informant. An order was entered

noting the Government filed a response identifying the infor-

mant as RICHARD CLEGG and representing he would be

called as a witness at trial and provided his location would

be refused the Defendant but he was required to be made

available to interview by the Defendant prior to commence-

ment of trial. Such was not done and the witness was pre-

cluded from use by the Government.

Trial commenced on 4 April 1977 and resulted on 6 April

1977, in a verdict of guilty on each of the three counts. How-

ever, prior to verdict, at the close of the government’s case and

close of the entire case, the Defendant made motion for judg-

ment of acquittal; the court denied it as to the first two counts

and reserved ruling as to the third count. The Defendant filed

a renewed motion for judgment of acquittal and alternate

motion for new trial on 13 April 1977. On 21 April 1977. the

court entered an order (1) denying Motion for new trial. (2)

denying Motion for judgment of acquittal as to count one and

two, and (3) granting the motion for a judgment of acquittal

on the third count.

The Defendant was sentenced on 26 May 1977 for a

period of imprisonment for two (2) years followed by a special

parole of three (3) years upon count one with a like sentence

upon count two to run concurrently with the sentence in count

one. An appeal and affirmance of the conviction followed.

B. FACTS

The Defendant was living in a quadruplex in which one of

the units was occupied by his girlfriend Robyn Retzer. Subse-

quently, another girl, one Deborah Russell moved in with the

girlfriend and became her roommate. Later yet, the ex-fiance.

boyfriend of the roommate moved into the same apartment

with the two girls: his name was Richard Clegg. The latter,

unknown to the Defendant was a paid, government informant

and so ultimately functioned in this case.

Shortly after the informant Richard Clegg arrived on the

scene, he began to freely use drugs of various kinds and began

a program of attempting to cause the Defendant to acquire

drugs for him; the Defendant declined to have anything to do

with it as he had with others.

Finally, after about thirty efforts, the informant found

the Defendant in such depressing circumstances that he was

able to prevail upon him and enlist his aid in acquiring a quantity

of cocaine. The Defendant and his girlfriend had parted and the

Defendant was depressed. In reviewing his circumstances,

Petitioner found he was going nowhere and determined he ought

return to college to finish the last year required to obtain his

degree. The informant urged that the Defendant could make

exhorbitant gain in one cocaine transaction and provide the

funds necessary to his schooling. Thereafter, with trepidation,

the Defendant agreed to try to find a quantity of cocaine for

the informant. Initially, the Defendant was only to acquire it

for the informant and he was neither to meet nor deal with any

other person. However, as the transaction began to mature, the

circumstances changed. The Defendant expressed he wanted to

stop and not continue with the matter.

The informant advised the Defendant the he needed to

deal with the “buyer”. The Defendant advised he did not want

to participate further but the informant countered with asser-

tions that the “buyer” was a violent person, a “heavy” and they

were both in great danger for their personal safety if it did not

conclude as planned. The “buyer” was a federal agent.

In terror, the Defendant went through with the transaction

after arming himself for protection. As the “buyer” talked of

more the Defendant went along with the conversation as means

of protecting himself.

The “buyer” appeared and that buyer was Dennis Silvestri

an agent for the DEA [the United States Drug Enforcement

Administration |.

Shortly after his appearance that agent pointed a firearm

at the Defendant and announced he was under arrest. That

agent had no knowledge of what representations or statements

were made to the Defendant by the informant, Richard Clegg.

a paid informant in order to bring on the transaction. The full

amount of payments, including payments as an informant in

other cases as well as the full disclosure of how long the infor-

mant had functioned was at first ordered but the court shortly

thereafter receded from the ruling and it was not disclosed, but

made a part of the court's file. The Informant received one

hundred ($100.00) dollars for expenses before the arrest and

one thousand ($1,000.00) dollars as “reward” for making

6

ORT OTT ES

the case.

Except for a “background” check agent Silvestri got all of

his information from the informant. The informant was never

monitored and just what or how his representations to the

Defendant occurred was not known by the agents except as to

what the informant might have related. The informant was

given no words of limitation or instructions as to what he might

represent to the Defendant.

The firearm taken from the Defendant was used in no way

by him and the arresting agent was wholly unaware it was

possessed by the Defendant until removed from him; it played

no part in the entire episode. It was never tested and it is wholly

unknown whether it will even operate as a firearm.

REASONS FOR GRANTING THE WRIT

1. When there is no evidence of any predispostion to

commit a crime and the defendant established that

a paid government informant, after many efforts

covering several months, created a circumstance

resulting in a single cocaine prosecution, the

defendant was entitled to an acquittal by reason of

entrapment especially when the defense was pro-

hibited from fully developing his defense relating

to the informant both pretrial and during trial by

the ruling of the trial court.

It is wel! established, that the key element to be determined

when an entrapment defense is raised is whether or not the

Defendant was predisposed to commit the crime. Hampton y.

United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.E.D. 2d 113

(1975). As this Court has stated:

“The function of law enforcement is the

prevention of crime and the apprehension

of criminals. Manifestly, that function does

not include the manufacturing of crime.

Criminal activity is such that stealth and

Strategy are necessary weapons in the ar-

senal of the police officer. However, ‘a

different question is presented when the

criminal design originates with the officials

of the government, and they implant in the

mind of an innocent person the disposition

to commit the alleged offense and induce

its commission in order that they may

prosecute’ ”’.

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

In the instant case, there is no question but that the

Petitioner's defense was wholly predicated upon entrapment.

The Defendant testified thusly, as did the witness, Robyn

Retzer, called by the Defendant. An agent fo: the DEA, Dennis

Silvestri testified that he made the arrest of the Defendant. He

| stified that his first attention to the Defendant came as a

result of information given to him in April of 1976 by a paid

sovernment informant, Richard Clegg. Although the “arrest”

did not occur until August of 1976.

It is uncontroverted, that the transaction for which the

Defendant was prosecuted is that which had transpired between

Clegg (the paid informant) and the Defendant. However. there

was no recording or other transcript to reflect the words which

produced the alleged criminal episode. The informant was never

instructed as to what he could or could not represent in arriving

at a transaction with the Defendant. The DEA agent never

heard of the Defendant until he was told of the existence of

him by the informant and, except for “background” informa-

tion (such as driver’s license, etc.) which the agent obtained

from various agencies, all of that learned by him came from

representations of the informant alone.

The first conversation the agent ever had with the Defen-

dant occurred only minutes before he arrested the Defendant

for the episode for which he was tried in this case.

Without the benefit of the testimony of the informant,

the only testimony as to what, when, where and in what words

the alleged criminal transaction came into being is found in the

testimony of the Defendant. There were conflicts between the

testimony of the agent (Silvestri) and the Defendant as to what

actually occurred. Those events occurred at a time not only

when the paid informant was present but also the entire episode

was arranged in detail to the very moment of the arrest trans-

action by that same paid informant. Thus, under these cir-

cumstances, to deny the identity so the informant could be

employed by the Defendant as a witness was reversible error.

Lopez-Hernandez y. United States, 394 Fed.2d 820 (9th Cir.

1968).

There is no doubt that the informant was paid. He was

paid $100.00 in “expenses”, and a “reward’’ of $1,000.00

for making the case possible (and prior to trial). This case is

On point with the case of Williamson y. United States, 311

Fed.2d 411, (Sth Cir. 1962) wherein an informant was paid in a

contingent manner much as in this case. There. as here. no

testimony evidencing any limitations upon the representations

the informant might make in his activities with the Defendant.

to insure that the criminal plan did not originate with the

informant but rather, the informant only furnished the defen-

dant the opportunity to do that which he otherwise planned to

do anyway. Instantly. the Defendant attempted in every manner

possible to investigate the informant. In response to the Defen-

dant’s Motion to Compel the disclosure of the name and address

of the government's informant. the government disclosed the

informant to be Richard Clegg. However. when the Defendant

attempted to get the address of the informant witness (the

government had asserted it was going to have the informant

testify), the court refused to order the government to furnish

the address of said informant to the Defendant. It is thusly. the

Petitioner’s position that his Fifth Amendment right to a fair

trial and Sixth Amendment right to compulsory process, were

denied through the court’s action and that he was wholly pre-

vented from making any independent investigation of the infor-

mant. [Compare: Alford v. United States, 282 U.S. 687 (1931):

Smith v. Illinois, 390 U.S. 129 (1968).

It must be remembered that the government represented

it would call the paid informant as a witness, and the court

ordered and required that he be made available prior to trial

for the Defendant to question. While the opinon of the lower

appellate court states that Petitioner was granted “the right to

interview Clegg at any time before trial’, United States y.

Bower, 575 Fed.2d 499, 503 (Sth Cir. 1978), such is contrary

to the facts. The government was only to produce the infor-

mant, Clegg, just prior to trial. Thereupon, the Defendant was

limited to such interview with no address for the informant

or the ability to learn anything of him in his community or to

garner impeaching material. The government, however, never

complied; thus Clegg was not permitted to testify. However, the

fact that the trial court precluded the witness from testifying

is not a full answer to the issues presented. As Petitioner was

traveling upon a defense of entrapment and could perhaps have

been better supported in his defense with the testimony of

‘ legg: regardless of his identity being known, the Defendant

was wholly prevented from exploring and thereupon developing

this testimony. He could learn nothing of the paid informant; a

result of the denied use of the witness by the government, such

that the defense never had an o;portunity to interview or

investigate the informant.

Under the circumstances, the Defendant was left without

anything by way of “background” to reflect upon the infor-

mant, his propensisties or abilities in functioning as such. How-

ever, there is much testimony by the DEA agent, Silvestri, as to

his actions with the informant or as a result of representations

made by the informant. It is clear, therefore, that the deprival

was not limited to the pretrial period. During the course of the

trial, the Defendant attempted to develop from the DEA agent,

Silvestri, testimony as to the total amount the informant was

paid by the DEA for his function as an informant, the Court at

first ordered it be disclosed, but then receded from that

position to limit it to the payments made only in this case. The

government initially introduced testimony relating to the infor-

mant from the DEA agent, Silvestri; the Defendant only

attempted to explore fully the matter of the informant. That he

was paid large sums of money over a period of time is certainly

a factor to which the jury, in its deliberations might turn, to

understand and appreciate the ability of the informant and his

skill as such developed by his many experiences. Being skillful

surely would allow the jury to believe he could have created the

crime rather than merely to have offered a predisposed person

an opportunity to commit the crime he otherwise intended to

10

commit.

The transcript of trial demonstrates clearly that it was

solely the paid informant who brought the Defendant to the

attention of the DEA. The initial such directing of attention

occurred in April, 1976. It was not until 30 August 1976 that

the episode for which the Defendant was tried was alleged to

have taken place. Therefore, though no act, deed, or thing

unlawful or connected with this case took place until months

after the April date, the paid informant brought the Defen-

dant to the attention of the DEA agent. The testimony fur-

ther indicates that from April through the end of August,

the paid informant on some thirty different occasions,

attempted to lure the Defendant into a narcotics transaction.

but to no avail. Finally, after long effort, at a time when the

Defendant was under unusual depressing circumstances, and

representing an opportunity to make an exhorbitant gain

allowing him to return to school, the Defendant succumbed.

U.S. v. Bower, supra. at 503-504. Moreover, the informant

represented it would be safe and the Petitioner would only

deal with the informant, with whom he was already acquainted

and friendly.

As the circumstances changed, the Petitioner, according

to the only evidence adduced at trial, attempted to withdraw

and not go through with the transaction. However, the paid

informant (later “rewarded” with $1,000.00 by the DEA for

making this case), implored the Defendant to go on or he, the

informant, would be killed and implied the same fate to the

Defe rdant.

The rulings of the trial court, which were affirmed by the

lower appellate court, stripped the Petitioner of any oppor-

tunity to develop or present the circumstances surrounding

the informant. The government presented only the DEA agent

(who posed as the buyer) to relate the transaction itself, with-

out any evidence touching upon the circumstances relating to

the transaction. The full case-situation was not disclosed. The

jury was put much in the position of one determining the

breed of a dog by viewing only the tail.

The trial court recognized that the Defendant raised the

defense of entrapment and so instructed the jury. It is clear,

11

that once the matter of entrapment became an issue, it was the

burden of the government to prove, beyond every reasonable

doubt that the Defendant was not the victim of entrapment.

See: United States v. Groessell, 440 Fed.2d 602 (Sth Cir. 1971).

Not only did the government fail to so establish, but also both

the court and government prevented the Defendant from ad-

ducing all of those circumstances surrounding the paid infor-

mant to corroborate the testimony and evidence of entrapment

as introduced by the Defendant.

It is the Petitioner’s position that the record in the instant

case presents a classic instance where entrapment exists as a

motter of law. Sherman v, United States, 356 U.S. 359 (1958).

The record presented in the instant case contains uncontra-

dicted evidence of the paid informant’s repeated attempts to

persuade the Petitioner to procure narcotics for him. One

might contend that the Petitioner was “an innocent seduced by

a government agent.” Pierce v. United States, 414 Fed.2d 163,

165 (Sth Cir.), cert. denied 396 U.S. 960 (1969).

The government was satisfied to rest its case during trial

against the entrapment defense without ever calling the infor-

mant or otherwise refuting any of the testimony offered by the

Defendant and his witnesses, each who stood unimpeacned.

The idea of the cocaine transaction arose with the informant,

not in the mind of the Defendant. It was the response of the

Defendant, some thirty times that he was not interested in

any such transaction. United States v. Bower, supra at 504.

There is an absolute dearth of evidence to reflect the Defen-

dant ever did or would have dealt with cocaine in any way

except for the actions and representations of the informant

who was, at those very moments functioning as an adjunct to

the DEA agent. United States v. Groessell, 440 Fed.2d 602,

606 (Sth Ci.) cert. denied 403 U.S. 933 (1971). See: United

States v. Puma, 548 Fed.2d 508 (Sth Cir. 1977).

Where from the testimony of the Defendant alone en-

trapment is demonstrated as a matter of law, the absence of

evidence by the government to contradict the Defendant,

mandates reversal. United States v. Bueno, 447 Fed.2d 903

(Sth Cir. 1971). See also: United States v. Groessell, supra.

12

The facts of this case admit of the reasonable existence

of entrapment, it was not dispelled by the government, as a

matter of law the Defendant was entitled to discharge upon

that defense. Sherman v. United States, supra.

The Petitioner further asserts that his right to a fair trial

was prejudiced in that the jury was not apprised of all the

relevant evidence. Though the Defendant relied upon a defense

of entrapment by a paid government informant and the ability

of the informant to lure the Defendant into criminal activity

was an issue, the trial court refused to permit the Defendant (as

previously discussed) to inquire into the total amounts paid by

the DEA to the informant for his services as such and limited

the inquiry to solely the amount paid in this case. The appellate

court by its affirmance of the conviction approved the trial

court’s ruling and dispatched the same by asserting the same

was not relevant evidence. Undoubtedly, the court overlooked

the fact that the length of service, the experience, the number

of instances when the informant was “able” to cause the arrest

of others (and the amount he was paid therefore) would shed

light on whether the Defendant was “lured” into the criminal

act. The circumstances are clearly akin to the ability of a sales-

man, it is not measured by a single sale but rather on his many

sales. The jury may have had the balance tipped in the favor of

the Defendant’s assertion of entrapment if they had known of

the long series of occasions when others were led to commit an

offense by the informant. Compare: Davis v. Alaska, 415 U.S

308 (1974).

Although the government was precluded from calling Clegg

as a witness, due to the prosecution’s failure to produce the wit-

ness did not render the error of the trial court’s holding that the

Defendant was not entitled to the address of the informant, moot.

The decision of the appellate court which summarily held that

Petitioner was not entitled to the address of the identified infor-

mant is wholly contrary to prior holdings of this Court wherein

the value of the address of a witness has been demonstrated.

See: Alford v. United States, supra; Smith vy. Illinois, supra. Had

the informant testified there is no doubt that his true name and

accurate address could be had by the Defendant. /d.

The informant was not a formal witness in this case to the

extent that he appeared and testified. However, his actions were

the subject of much testimony as was the result of his repre-

sentations. That he functioned otherwise than in this case as a

paid informant is not in doubt to any, except the jury who was

privy to no testimony reflecting that matter.

There is no question but that the DEA agent acted through

Richard Clegg (the informant), he did not furnish a mere lead

but actually, grossly participated in the episode for which the

Defendant was prosecuted to the moment of arrest. He played

sucil a part a disclosure of his identity was manifestly necessary.

R: iaro vy, United States, 353 U.S. 53, (1957). Scher v. United

Srates, 305 U.S. 251 (1938). Although the government realized

this and identified the informant, it nevertheless obtained a

protective order. This protective order completely frustrated

the defense, for it was unable to make any independent investi-

gation of the paid informant as well as precluding Petitioner the

right to interview him to become apprised of precisely what the

informant would admit to and testify to in a manner the Defen-

dant could utilize in trial. It is not a sufficient answer, since the

prosecution failed to produce the paid informant for interview

prior to trial they would be precluded from employing his

testimony as the trial court ruled and appellate court affirmed.

United States v. Bower, supra at 502-503.

The Petitioner, pursuant to the Sixth Amendment of the

Constitution of the United States is not only guaranteed the

right “*...to be confronted with the witnesses against him;”

but is also guaranteed ‘‘...to have compulsory process for

obtaining witnesses in his favor,.... In the instant case,

Petitioner was actually deprived of the opportunity to deter-

mine the full extent this witness might be in his favor and also

deprived of that knowledge necessary to be able to serve process

upon that witness compelling him to attend. At no time from

arrest to trial did Petitioner have any real opportunity to con-

front this party who amounted to if not an actual, at least a

constructive, witness against him. Although the opinion of the

appellate court asserts that the Petitioner was granted the right

to interview the informant before trial, such is not actually the

14

case. The government was only to produce the informant Clegg,

just prior to trial. Thereupon, the Defendant was limited to

such interview with no address of the informant or the ability

to learn anything of him in his community or garner impeaching

materials. Due process of law as prescribed by the Fifth Amend-

ment surely cannot be so construed as to render the words of

the Sixth Amendment empty but fine sounding phrases. The

Defendant sought the address and other particulars of identity

of the paid informant in order to subpoena him for trial and so

made it known to the court along with the matter of the non-

disclosure aligning itself within the perimeters of “Brady”

material. The court acknowledged the stated purpose of the

Defendant but refused to grant the Defendant’s motion

allowing the government to continue its concealment of the

paid informant witness. The disclosure was never made to the

Defendant. Thusly, the Defendant was placed in the position of

having the actions of the paid informant together with the fact

of representations made to him by the DEA agent, and acted

upon by the latter, used against him but without any oppor-

tunity to cross-examine the paid informant. And, further, the

Defendant was not in a position to either investigate, interview

or call the paid informant as a witness. The opinion of the

court of appeals in the instant case, alleges that Petitioner could

have sought to subpoena Clegg for trial through the Office of

the United States Attorney. United States v. Bower, supra at

503. Clearly, as such was not the actual address of the infor-

mant, coupled with the fact that Petitioner had been told by

the court that he would be given an opportunity to “interview”

said informant immediately prior to trial. is inconsistent with

the lower court’s holding. Moreover, Petitioner was not in a

position to either investigate. interview or call the paid infor-

mant as a witness. It need be remembered relative to the dis-

closure of informants, that “once the identity of the informer

has been disclosed to those who would have cause to resent the

communication, the privilege is no longer applicable.”” Roviaro

v. United States, supra. No justification stands apparent for the

secreting from Defendant of this witness to actual facts of the

case. Nonetheless, such occurred. Both sides, the prosecution

15

4 DAME nem sem ee *

and defense, have equal rights and should have equal oppor-

tunities to interview witnesses. Gregory v. United States, 369

Fed.2d 185 (CADC 1966).

To have denied the Petitioner the opportunity to call the

informant as an adverse witness was reversible error. Clingan y.

United States, 400 Fed.2d 869 (Sth Cir.1968). Petitioner in the

instant case sought the address in order not only to investigate

and interview but also to subpoena as a witness. He was refused

every opportunity with regard to the witness, except being

nakedly furnished his name by the government.

It must be noted, that the only reason urged by the

go ernment and acted upon by the court to deny the address

of the paid informant to the Defendant was the assertion that

“the Defendant was in possession of an automatic handgun

at the time of his arrest and the informant thus has ‘concern

for his personal safety’.”’ No assertion was ever made that the

possession was unlawful much less that the Defendant ever tried

to use it or had any history of violence or even remarked upon

such propensity. The prosecutor had to know the agent’s testi-

mony was such that except for being on the person of the

Defendant, the gun played no part in the alleged criminal episode.

The paid informant never in person or by affidavit attested to

such ‘“‘concern”’. Surely that “concern” could not serve to

wholly deprive the Defendant and his counsel from learning

the identity and location of material witnesses, interviewing

them or calling them as witnesses and still comport with the

Fifth and Sixth Amendments of the Constitution. The right

to confront and cross-examine witnesses and to call witnesses

in one’s own behalf is essential to due process. Chambers y.

Mississippi, 410 U.S. 284 (1973).

There were clear infringements, without just and lawful

cause or right, of the constitutional rights of the Petitioner,

which necessitate reversal. Petitioner demonstrated that he

was entitled to a judgment of acquittal as a matter of law on his

defense of entrapment and further, that he was severely

prejudiced by the limiting of his cross-examination as to rele-

vant evidence such that his constitutional rights were violated.

16

2. That the submission of the firearm charge to the

jury, when the carrying of a concealed firearm in

one’s own dwelling house constitutes no offense to

State law. but the Defendant was charged with

violating federal gun laws, so prejudiced the Defen-

dant so as to deny him a fair trial.

The Petitioner was originally charged in a two-count

indictment with possession with intent to distribute and dis-

tribution of cocaine. United States v. Bower, supra at 501.

Subsequently, a superseding indictment was filed, charging

Petitioner with possession of a firearm during the commission

of a felony in violation of 18 USCA § 924 (¢)(2), alleging the

Petitioner, at the time of committing set forth in the first two

counts was unlawfully carrying a firearm.

Thereafter, the Petitioner moved to dismiss the super-

ceding indictment, said motion being referred to the United

States Magistrate, “who recommended the motion be granted”.

The district court. however. denied the motion, and trial com-

menced on all three counts. At the close of the government's

case and at the close of the entire cause. Defendant moved for

judgment of acquittal. The district court denied the motion as

to the first two counts and reserved judgment as to count three.

After the jury had returned the verdict of guilty on all three

counts, the district judge sentenced the Defendant. . .and

granted Defendant’s renewed motion for judgment of acquittal

as to count three, the federal firearms count. United States y.

Bower, 575 Fed.2d 499. 501 (Sth Cir. 1978).

The facts surrounding the offense charged in the third

count are nowhere in dispute. The Defendant, at the time of

the other alleged offenses and at the time of his arrest for the

same was in his dwelling home. he so asserts and the govern-

ment agreed and asserts. Therefore, if any offense occurred, it

was unquestionably within the contines of his home, his dwelling

house.

There was no attempt to assert that the Defendant used

the firearm in any way (and factly, the government Knew he did

not use or attempt to use it in any way) the government's

position is founded on mere possession us is the statute involved

(Title 18 USC § 924 (a) (¢) (2).

17

Petitioner maintains mere possession is not a violation of

this statute. The government must prove, in addition to the ele-

ments necessary to establish the commission of the offense,

during which the weapon was allegedly carried, that the firearm

was unlawfully carried or possessed. Perkins v. United States,

$26 Fed.2d 688 (Sth Cir. 1976). In the absence of establishing

that the possession of the weapon was unlawful in itself,

the proof will not sustain the conviction. United States y.

Soria, 519 Fed.2d 1060 (Sth Cir. 1975); United States y.

Ramirez, 482 Fed. 2d 807 (2nd Cir.) cert. denied 414 US.

1070 (1973). The employment of the word “unlawfully” means

carrying a gun contrary to any law, be it federal, state or

niunicipal. United States v. Howard, 504 Fed.2d 1281 (8th Cir.

1974): see also: United States v. Rivero, 532 Fed. 2d 450 (Sth

Cir. 1976). The opinion of the court below recognizes that a

policeman lawfully possessing a firearm but who commits a

felony is exempt from the operation of the statute. However,

the court did not equate the right of the homeowner to possess

a firearm, concealed on his person. while in his dwelling house

to his possessing a license to do so, since the homeowner under

those circumstances is exempt from the required license. Each

being appropriately licensed t. carry a firearm (one by grant

and the other by exemption) is /awfully carrying the firearm.

Each would be equally responsible for any felony committed

while so carrying the firearm but neither would be guilty of

“unlawfully” carrying the firearm, as logic would dictate. The

court below, obviously created a conflict and special class of

person in the instant case.

The magistrate, in recommending the dismissal of count

three of the indictment reported: “On 30 August 1976, the

Defendant Charles Frederick Bower, was arrested in his home

by special agents of the Drug Enforcement Administration for

the knowing possession with intent to distribute and distribu-

tion of a quantity of cocaine hydrochloride to those agents

A search of Bower's person, immediately after his arrest,

revealed that he was carrying a loaded 22 caliber automatic

pistol concealed in his waistband. It was conceived by the

government that the defendant never brandished or other-

wise displayed the pistol at any time.”’

18

The magistrate then determined by the legislative history

of the act that a violation occurs only if possession of a firearm

is itself unlawful. He recognized the Florida Statutes relating to

the carrying of a firearm in one’s own dwelling home rendered

that carrying not unlawful (Fla.Stat. 790.25 (3) (n) and it had

been so construed by the courts of Florida. Peoples v. State,

287 So.2d 63 (Fla. 1973); French V. State, 279 So. 2d 317 (4

Fla. DCA 1973). The district court judge, thereafter, entered an

order denying the motion to dismiss asserting that the

Petitioner could not “use it and carry it in the performance of

another felony’ without violating the statute. Apparently

that ruling completely ignored the findings made by the magis-

trate which were later confirmed at trial, that the weapon was

not brandished or used by the Defendant.

In deciding the instant case, the lower court recognized

that the highest court of the State of Florida has construed the

Florida statutes relating to the carrying of firearms on the per-

son in such a manner that it is not unlawful for one within his

home to carry a firearm concealed on his person. Peoples y.

State, supra. However, the court then opined that pursuant to

the Statute § 790.07 (2), it would be unlawful if the home-

owner within his home was committing the felony of delivery

of cocaine and the firearm played no part in the commission of

that felony but was simply on the person of the homeowner. In

short, although the Defendant-homeowner lawfully concealed

a firearm on his person, the mere fact that subsequently within

his home he delivered cocaine to another while the firearm was

on his person, and in no way being used by him, created an

offense of unlawfully carrying a firearm. No decision with this

construction has ever been promulgated by the courts of the

State of Florida, the final arbitrators of the meaning of state

law.

Nominally, it would appear that the two provisions of the

Statute are in conflict. Penal Statutes in Florida are read liber-

ally in favor of the Defendant and against the State. See: State

v. Winters, 346 So.2d 991 (Fla. 1977): see also; United States v.

Gaskin, 320 U.S. 527 (1944). The construction employed by

the lower appellate court deciding this cause construed to the

19

contrary.

The ambiguity is heightened by the Statute when it speaks

of exempting some felonies in which the unlawful carrying of a

firearm does not constitute an offense. After specifically enum-

erating certain specific offenses the Statute recites “. . .or other

similiar offenses’. Nonetheless, the decisions sub judice resolved

all ambiguities against the Defendant and in favor of the State.

It would appear that the decision of the lower appellate

court essentially established an offense never previously recog-

nized by the state courts of Florida. Moreover, review should be

granted by this Court in this matter, as the trial court, in over-

ruling the magistrate, and subsequently refusing to dismiss the

count and submitting it to the jury resolved this issue differ-

ently from the panel decision of the appellate court. The trial

court in granting the directed judgment of acquittal, did so as

the homeowner merely possessed the firearm on his person and

in no way attempted to employ it in the possession (with intent

to deliver) of cocaine. The appellate court has held that the

naked possession by the homeowner in his home, at the time he

possessed or distributed the cocaine, violated the Statute re-

gardless of his right to possess it concealed on his person while

in his dwelling home. Merely because the Petitioner admitted

carrying the pistol during the narcotics sale, his possession was

not consequently unlawful within the meaning of 18 USC §

924. when state law provides otherwise.

The Petitioner further contends that he was severely

prejudiced by the trial court submitting this issue to the jury.

The Petitioner was put to trial upon a count that could not

stand under the fact Known to the government and the appli-

cable state law as described above. This charge created no

justiciable issue of fact and merely served to infer that the

Defendant was a dangerous person who went about unlawfully

armed. This too, tends to affect the credibility of the Defen-

dant and his defense of entrapment relied upon in this case.

(See Questions Presented 1, supra.) Had the court granted the

motion for judgment of acquittal at the point where the gov-

ernment rested or even when the entire case was in, and then

instructed the jury on the matter of law that the Defendant

20

was not unlawfully armed at the time of the alleged offenses,

the harm may have been dispelled.

However, the court submitted the count to the consider-

ation of the jury, and when the jury advised the court that they

were unable to arrive at the verdict, the trial judge exhorted

them to agree anyway and again failed to remove count three

from their consideration though factually the court had to

know it made no prima facie instance and demanded an acquit-

tal. Additionally, the court instructed the jury that their

inability to arrive at a verdict would result in another jury

hearing and deciding the same case on the same evidence. Again.

making known to the jury that the facts adduced made a case

for the jury on each count. A directed judgment of acquittal

even at that point would have placed the episode in its true

perspective for resolve of the first two counts alone, unin-

fluenced by any assertion of the government that the Defen-

dant was unlawfully armed.

A reasonable doubt was apparently harbored by at least

some members of the jury and such was dissipated upon the

giving of the charge and with no new evidence being offered.

Where the verdict is so delicately poised between conviction and

acquittal can it be said that allowing a count of being unlaw-

fully armed to go to a jury where as a matter of law, a convic-

tion could not be sustained. is harmless? Having permitted the

count to remain before the jury where it should never have

been is tantamount to putting items of character in issue to

introduce a propensity to commit crime issue into the case in

chief; the latter is not permitted. Michelson v. United States,

335 U.S. 469 (1948). A prosecutor has a professional duty not

to charge a suspect with a crime unless he is satisfied with the

existence of probable cause. Gerstein v. Pugh, 420 U.S. 103

(1975). The prosecutor in this instance would have the same

professional obligations to seek indictment only under like

circumstances. No facts existed to give rise to probable cause

for the third count. See: Schaffer v. United States, 362 U.S.

511 (1960).

The submission of this question to the jury, that the

Defendant at the time of the commission of the offense was

al

“armed with a weapon” sorely prejudiced the Petitioner's

case. The firearm charge had no place in this trial except for the

dogged insistence of the prosecution that it remain, it would

never have been. Applying the error standards articulated by

this Court in Kotteakos v. United States, 382 U.S. 750 (1946),

wherein it said: (10) If, when all is said and done, the convic-

tion is sure that the error did not influence the jury, or had but

very slight effect, the verdict and judgment should stand except

perhaps where the departure is from a constitutional norm or a

specific command of congress. Bruno v, United States, (1939)

308 U.S. at page 294, 60 S.Ct. at page 200. But if one could not

say, with fair assurance, after pondering all that happened with-

out stripping the erroneous action from the whole. that the

judgment was not substantially swayed by the error, it is im-

possible to conclude substantial rights were not affected. The

inquiry cannot be merely whether there was enough to support

the result, apart from the phase affected by the error. It is

rather, even so, whether the error itself had substantial influ-

ence. If so. or if one is left in grave doubt. the conviction can-

not stand.”

Applying the foregoing considerations it would appear

prejudicial, reversible error occurred in the trial court and that

the decision of the lower appellate court must likewise be

reversed.

oh)

CONCLUSION

For the reasons set forth above, the petition for Writ of

Certiorari should be...

GRANTED.

Respectfully submitted,

BY:

RAY SANDSTROM of

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale, FL 33301

Telephone: (305) 467-6767

I HEREBY CERTIFY that a copy of the foregoing Petition

for Writ of Certiorari has been furnished by mail to Honorable

Wade H. McCree., Jr., Solicitor General. Department of Justice.

Washington, D.C., 20530. this 21 September 1978.

AS a

RAY SANDSTROM

APPENDIX

1. The decision of the Court of Appeals,

Fifth Circuit

A.1-12

2. Petition for Rehearing

A-13

UNITED STATES v. BOWER

Cite as 575 F.2d 499 (1978)

rectly provided the jury with a written copy of the jury charges.

In United States v. Schilleci, 5 Cir., 1977, 545 F.2d 519, this

court expressed disapproval of the practice of furnishing the

jury with written copies of the jury charge, but stated, however,

that the practice was “not error in itself.”’ /d. at 526. As none

of the circumstances that created the risk of prejudice in

Shilleci is present in this case,4 we reject defendant’s contention.

AFFIRMED.

4, In Shilleci the court explained its dissatisfaction with the practice of fur-

nishing the jury with written instructions.

It should be noted that the trial judge gave a written copy of his jury charge

to each member of the jury to have to follow along as he read, and to carry

into the jury room, Thus, the jury had the opportunity to give more consid-

eration to separate portions of the charge, rather than to the total charge; and

the jury was not instructed that the charge was to be considered by them as a

connected series and viewed as a whole. /d. at 524.

The court went on to further explain its holding.

Other factors combined to compound this error | regarding defendant's ignor-

ance of the law]. First, the charge was submitted to the jury in writing for

them to consider during their deliberations. While not error in itself, the

practice is conducive to dissection of the charge by the jury and overemphasis

of isolated parts rather than consideration of the charge as a whole. Second,

the jury was never instructed to consider the charge as an integrated whole. . .

While we are hesitant to rely on any one of the above errors as constituting

in and of itself, reversible error, their combined eftect, together with the

unique factual situation presented, require reversal of these convictions.

A.l

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Charles Frederick BOWER,

Defendant-Appellant.

No. 77-5336.

United States Court of Appeals.

Fifth Circuit

June 19, 1978.

Jury in the United States District Court for the Southern

District of Florida. at Miami. C. Clyde Atkins, Chief Judge.

found defendant guilty of possession with intent to distribute

and distribution of cocaine and of unlawful possession of a

firearm during the commission of his federal felony, but motion

for judgment of acquittal as to the latter offense was granted,

und defendant appealed. The Court of Appeals. Roney. Circuit

Judge. held that: (1) defendant’s carrying of a concealed

weapon during narcotics sale in his own home was a violation of

Florida statute, and thus “unlawful” within federal statute. so

that there was no error in allowing firearms count to go to the

jury; (2) since defendant was armed when arrested. trial court

justifiably denied disclosure of informer’s address when infor-

mer expressed concern for his personal safety, while granting

defendant night to interview informer at any time before trial.

and (3) issue of entrapment was for the jury.

Affirmed.

1. Weapons 4

Statute proscribing carrying a firearm unlawfully during

the commission of a federal felony is violated only if the act

of carrying the firearm is in and of itself a violation of federal,

state or local law. 18 U.S.C.A. § 924(¢)(2).

2. Weapons 4

Under Florida law, one need not obtain a permit to carry

A.2

500 575 FEDERAL REPORTER, 2d SERIES

a firearm in one’s own home, but statute proscribing carrying

a concealed firearm while committing or attempting to commit

a felony contains no exception for felonies committed in the

home and no exception for narcotics violations, and thus

defendant’s possession of a concealed weapon during a cocaine

transaction in his own home was “unlawful” within the

meaning of federal statute proscribing the carrying of a firearm

unlawfully during the commission of a federal felony. 18

U.S.C.A. § 924(c)(2); West’s F.S.A. § § 790.-07(2)(3), 790.25

(3)(n).

3. Witnesses 2(2)

Where at no time either before or during trial did defendant

seek an interview with informer or attempt to subpoena him for

trial, he could not thereafter argue that his Sixth Amendment

right to compulsory process was violated because of the Govern-

ment’s failure affirmatively to proffer informer for interview

pursuant to pretrial order. U.S.C.A.Const. Amend.6.

4. Witnesses 216

On motion to compel disclosure of confidential infor-

mant, court must balance the benefits to defendant of dis-

closure against the resulting harm to the government; but when

the defense is entrapment, this balancing test generally requires

disclosure.

5. Constitutional Law 268(5)

Witnesses 216

Noting that defendant was armed when arrested, trial

court justifiably denied disclosure of informer’s address when

informer expressed concern for his personal safety, while

granting defendant right to interview informer at any time

before trial, and failure to require disclosure of informer’s

address did not violate defendant’s due process right to a fair

trial. U.S.C.A. Const.Amend. 5.

A.3

UNITED STATES v. BOWER

Cite as 575 F.2d 499 (1978)

6. Witnesses 269(10)

In prosecution for possession with intent to distribute and

distribution of cocaine, in which government agent testified on

direct examination as to the compensation paid to informer for

the present case, there was no error in refusal to allow defen-

dant to inquire on cross-examination as to amounts paid infor-

mer for work on previous cases, since this was not relevant to

the facts testified to by the agent on direct examination.

7. Criminal Law 37(1)

The crucial issue in entrapment cases is whether defendant

was predisposed to commit the crime. and the government's

provision of aid, incentive, and opportunity for the commission

of the crime amounts to entrapment only if it appears that

defendant has done that which he would never have done were

it not for the inducement of government operatives.

8. Criminal Law 739.1(2)

In prosecution for possession with intent to distribute and

distribution of cocaine, issue of entrapment was for the jury.

even though informer did not testify, so that defendant's

account of informer’s repeated attempts to persuade defendant

to procure narcotics remained uncontradicted. Comprehensive

Drug Abuse Prevention and Control Act of 1970, § 401(a)(1),

21 U.S.C.A. § 841(a)(1).

Ray Sandstrom, Fort Lauderdale, Florida, for defendant-

appellant.

Jack V. Eskenazi, U.S.Atty., James E. McDonald, Asst.

U.S. Atty., Miami, Florida, for plaintiff-appellee.

Appeal from the United States District Court for the

Southern District of Florida.

Before JONES. RONEY and TJOFLAT, Circuit Judges.

A.4

501 575 FEDERAL REPORTER, 2d SERIES

RONEY, Circuit Judge:

Defendant Bower was convicted of possession with intent

to distribute and distribution of cocaine, and unlawful posses-

sion of a firearm during the commission of a federal felony. His

convictions came about largely through the efforts of a paid

Government informer. On this appeal defendant seeks reversal

of his convictions, arguing: (1) there was no foundation for

inclusion in the indictment of a count charging a federal fire-

arms violation; (2) the Government’s failure affirmatively to

proffer the paid informer for a pretrial interview with defen-

dant violated defendant's sixth amendment right to compul-

sory process; (3) the trial court’s refusal to compel disclosure

of the informer’s address and its refusal to allow defendant to

inquire into the amount of compensation paid the informer for

previous cases violated defendant’s due process right to a fair

trial; and (4) entrapment was established as a matter of law.

Finding no error, we affirm.

|. Background

The cocaine transaction leading to defendant’s convic-

tions was negotiated by Richard Clegg, a paid Government

informer. In early April 1976 Clegg moved into the apartment

above defendant. The two became acquainted, and Clegg soon

began requesting defendant to supply Clegg with narcotics.

After rejecting Clegg’s overtures several times, defendant agreed

to supply a quantity of cocaine to an Atlanta buyer. A deal was

struck, and Clegg and Drug Enforcement Administration [DEA]

agent Sylvestri, posing as the buyer, met with defendant at the

latter’s apartment to make the exchange. After delivering the

cocaine to Sylvestri, defendant was placed under arrest. A .22

caliber automatic pistol was found inside defendant’s waist-

band, concealed by his shirttail.

Il. Federal Firearms Violation

The original two-count indictment charged defendant

A.5 .

UNITED STATES v. BOWER

Cite as $75 F.2d 499 (1978)

with possession with intent to distribute and distribution ot

116 grams of cocaine, both in violation of 21 U.S.C.A. § 841

(a)(1). A superseding indictment added Count Three, which

charged defendant with possession of a firearm during the

commission of a felony in violation of 18 U.S.C.A. § 924(¢)

(2). Defendant's motion to dismiss Count Three was referred

to a United States Magistrate, who recommended the motion

be granted. The district court. however, denied the motion, and

trial cornmenced on all three counts. At the close of the Gov-

ernment’s case and at the close of the entire case. defendant

moved for judgment of acquittal. The district court denied the

motion as to the first two counts and reserved judgment as to

Count Three. After the jury had returned a verdict of guilty on

all three counts, the district judge sentenced defendant to con-

current terms of two years imprisonment with three years

special probation on the cocaine counts and granted defen-

dant’s renewed motion for judgment of acquittal as to Count

Three, the federal firearms count.

(1] Defendant maintains that the distmet court com-

mitted reversible error in allowing Count Three to go to the

jury. Count Three was based on 18 US.C.A. § 924(¢)(2).

which in pertinent part provides:

(c) Whoever. ..

(2) carries a firearm unlawfully during the commission

of any felony for which he may be prosecuted in a court of the

United States, shall, in addition to the punishment provided for

the commission of such felony, be sentenced to a term of im-

prisonment for not less than one year nor more than ten years.

Congress modified the verb “carries” with the adverb

“unlawfully” in order to avoid imposing additional penalties on

persons, such as policemen, who commit federal felonies while

lawfully carrying firearms. United States v. Ramirez, 482 F.2d

807 (2d Cir.). cert. denied sub nom., Gomez v. United States,

414 U.S. 1070. 94 S.Ct. 581. 38 L.Ed.2d 475 (1973).

Section 924(c)(2) is violated only if the act of carrying the

firearm is in and of itself a violation of federal, state, or local

A.6

———_——

502 575 FEDERAL REPORTER, 2d SERIES

law. United States vy. Rivero, 532 F.2d 450 (Sth Cir. 1976):

United States v. Soria, 519 F.2d 1060 (Sth Cir. 1975); United

States v. Garcia, 555 F.2d 708 (9th Cir. 1977); United States

v. Howard, 504 F.2d 1281 (8th Cir. 1974),

The Government has admitted from the outset that defen-

dant did not affirmatively use the firearm during the cocaine

transaction. Thus, defendant did not violate 18 U.S.C.A. §

924(c)(1), which makes it unlawful to use a firearm to commit

a federal felony.

The entire episode occurred in defendant’s residence.

Under § 790.25(3)(n). Florida Statutes, it is not unlawful to

carry a gun without a license in one’s own home, even if con-

cealed. See Peoples v. State, 287 So.2d 63 (Fla.1973); French

v. State, 279 So.2d 317 (Fla. Dist.Ct.App.1973). Relying upon

this statute, defendant argues, and the magistrate held. that

even if the Government proved defendant lacked a license. his

possession of the gun was lawful and therefore could not, as a

matter of law, form the basis of a conviction under § 924(¢)(2).

Defendant urges that the effect of allowing Count Three to go

to the jury was to allow the jury to consider otherwise inadmis-

sible evidence of defendant’s possession of the gun. This error.

argues defendant, requires reversal. A review of Florida law.

however, shows that under the undisputed facts of this case the

Government was justified in charging defendant with violation

of § 924(c)(2), and the district court did not err in submitting

the count to the jury.

{2] Defendant’s analysis of Florida’s gun licensing statutes

is correct: under § 790.25(3)(n) one need not obtain a permit

to carry a firearm in one’s own home. Peoples vy. State, 287 So.

2d 63 (Fla.1973). The Government proves its case, however, if

it can show that defendant's possession of the gun violated any

firearms law. E.g., United States v. Rivero, 532 F.2d 450 (Sth

Cir.1976); United States v. Howard, 504 F.2d 1281 (8th Cir.

1974),

Another section of the Florida Statutes, § 790.07(2),

A.7

UNITED STATES v. BOWER

Cite as 575 F.2d 499 (1978)

provides: “Whoever, while committing or attempting to commit

any felony or while under indictment... carries a concealed

firearm is guilty of a felony.’ This statute contains no excep-

tion for felonies committed in the home. Although certain

types of crimes are excluded from the application of this

section, narcotics violations are not.

The following crimes are excluded from application of

(§ 790.07]: Antitrust violations, unfair trade practices, re-

straints of trade, nonsupport of dependents, bigamy, or other

similar offenses. Fla. Stat. § 790.07(3). “Other similar offen-

ses” does not include narcotics violations. See Stovall v. State,

272 So.2d 866 (Fla. Dist.Ct.App .1973).

Florida courts have not adjudicated whether carriage of a

concealed firearm during the commission of a felony within

one’s own dwelling house is exempted by any Florida law. It

would appear that § 790.25(3)(n), which excepts the regis-

tration requirements for ‘Sa person possessing arms at his

home’, does not apply to firearm violations of § 790.07. See

§ 790.25(2)(a). We doubt the Florida courts would construe

the Florida statutes to provide any exception to § 790.07

other than those within the section itself.

Vefendant admitted carrying a concealed .22 caliber pistol

during the narcotics sale, a clear violation of Florida Statutes

§ 790.07(2). His possession of the concealed weapon was there-

fore “unlawful” within the meaning of 18 U.S.C.A. § 924(c)(2).

Since the Government has not appealed the validity of the

district court’s judgment of acquittal on Count Three, we do

not reach that issue. See United States v. Boyd, 566 F.2d 929

(Sth Cir. 1978). We hold only that the district court did not err

in denying defendant’s earlier motions for judgment of acquittal

and allowing the firearms count to go to the jury.

A.8

503 $75 FEDERAL REPORTER, 2d SERIES

Ill. Alleged Fifth and Sixth

Amendment Violations

Defendant alleges violations of his sixth amendment right

to compulsory process and his fifth amendment right to a fair

trial. In response to defendant’s motion to compel disclosure of

the name and address of the government’s informant, the Gov-

ernment admitted Richard Clegg’s identity, but moved for a

protective order denying discovery of his current address. The

court granted the Government’s motion, but ordered the

Government to make Clegg available for a pretrial interview

with defendant. The court’s order specifically provided that

prior to trial the government shall make the con-

fidential informant, Richard Clegg, available for

interview by the defendant in a safe place out-

side the immediate presence of a representative

of the government.

Because the Government did not affirmatively tender Clegg to

defendant for interview prior to trial, the court held the pre-

trial order had been violated and refused to allow the Govern-

ment to call Clegg as a witness.

[3] Defendant argues that his sixth amendment right to

compulsory process was violated because the Government’s

failure affirmatively to proffer the informant for interview

deprived him of his opportunity to develop the facts and cir-

cumstances surrounding the informant’s involvement in the

case. But at no time, either before or during trial, did detendant

seek an interview with Clegg or attempt to subpoena him for

trial. Defendant cannot now argue that his constitutional rights

were violated. It is not alleged that the Government failed to

disclose any Brady material in this case. Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962).

[4] Defendant also charges that the trial court violated

his due process right to a fair trial by refusing to compel dis-

closure of informant Clegg’s address and by limiting testimony

concerning Clegg’s compensation to the instant case. A trial

A.9

UNITED STATES v. BOWER

Cite as $75 F.2d 499 (1978)

court faced with a motion to compel disclosure of a contiden-

tial informant can call on no fixed rule to guide its decision.

Rather, in each case the court must balance the benefits to the

defendant of disclosure against the resulting harm to the Gov-

ernment. Roviaro v. United States, 353 U.S.53, 77 S.Ct. 623,

| L.Ed.2d 639 (1957); United States v. Fischer, 531 F.2d 783

(Sth Cir.1976). When the defense is entrapment, this balancing

test generally requires disclosure of the informer’s identity since

the defendant's freedom may rest upon allegations which the

informer is in a unique position to affirm or deny. United States

v. Gomez-Rojas, 507 F.2d 1213 (Sth Cir.). cert.denied, 423

U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d (1975).

{5] In the instant case, the court properly balanced the

competing interests and arrived at a satisfactory solution.

Noting that defendant was armed when arrested. the court

justifiably denied disclosure of Clegg’s address when Clegg

expressed concerm for his personal safety. See United States v.

Hansen, 569 F.2d 406, 410 (Sth Cir. 1978); United States v

Toombs, 497 F.2d 88, 94 (Sth Cir. 1974).

To protect defendant’s right to prepare his defense. the

court granted deiendant the right to interview Clegg at any

time before trial. Defendant could have used this right to

interrogate Clegg and, if pleased with the results, to serve him

with a subpoena to appear as a defense witness. Indeed. had

defendant desired to subpoena Clegg for appearance at trial, as

he now urgently contends, he could have served Clegg through

the office of the United States Attorney. Under these circum-

stances, the court’s failure to require disclosure of Clegg’s

address is not reversible error. See United States v. Gentile

495 F.2d 626, 633 n. 9 (Sth Cir.1974).

{6] No error occurred in the court’s refusal to allow defen-

dant to inquire on cross-examination of agent Sylvestri into

amounts paid Clegg for work on previous cases. The agent’s

testimony was limited to compensation for the present case.

Clegg’s compensation for earlier work was not relevant to

A. 10

504 575 FEDERAL REPORTER, 2d SERIES

the facts testified to by Sylvestri on direct examination.

IV. Entrapment

Defendant contends the evidence established an entrap-

ment as 2 matter of law. In support of this claim, defendant

relies primarily on his own trial testimony that he had agreed to

participate in the criminal enterprise in a moment of extreme

depression. Defendant had recently turned 30 and, reflecting

upon an uneventful past and contemplating a similar future, had

decided to return to college and finish his education. Unfor-

tunately, a year of voluntary unemployment had so depleted his

personal finances that he could not return to school without

working at least part time. Having hoped to be able to focus his

undivided attention on his studies. defendant began to recog-

nize Clegg’s proposals as an opportunity to finance his schooling.

His depression at this time was heightened by the fact that he

and his girlfriend had recently severed their long-standing

relationship. Consequently. although he had repeatedly rejected

Clegg’s earlier entreaties. he could no longer resist the tempta-

tion of the promised “exorbitant gains” to be reaped from a

single cocaine sale.

Since Clegg did not testify at trial. defendant’s account of

Clegg’s repeated attempts to persuade defendant to procure

narcotics is uncontradicted. The record nevertheless contains

evidence weighing against the contention that defendant was

“an innocent seduced by government agent.” Pierce v. United

States, 414 F.2d 163. 165 (Sth Cir.). cert.denied, 396 U.S.

960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). Defendant admitted

that he saw the sale as a source of “easy money” and that he

expected to make a $1.000 profit on the transaction. He pur-

chased the cocaine from a nongovernment source who trusted

defendant enough to defer payment until defendant had resold

the drug. Indeed. while negotiating the actual exchange, defen-

dant assured DEA agent Sylvestri that he could handle Sylvestri’s

future cocaine needs if the amounts were not too large. Both

UNITED STATES v. BOWER

Cite as 575 F.2d 499 (1978)

agent Sylvestri and defendant testified that during the transac-

tion, defendant received a telephone call from his source.

Defendant interrupted his telephone conversation to ask Syl-

vestri if he was interested in buying another four ounces of

cocaine. When the DEA agent expressed interest, defendant

requested his source “not to lock up the other four” and

offered to produce the additional cocaine for Sylvestri in 30

minutes.

[7,8] On this evidence, the trial court did not err in sub-

mitting the entrapment issue to the jury. The crucial issue in

entrapment cases is whether the defendant was predisposed to

commit the crime. Hampton y, United States, 425 U.S. 484, 96

S.Ct. 1646, 48 L.Ed.2d 113 (1975); United States v. Gomez-

Rojas, 507 F.2d 1213 (Sth Cir.), cert.denied, 423 U.S. 826,

96 S.Ct. 41, 46 L.Ed.2d 42 (1975). The Government’s provision

of aid, incentive. and opportunity for commission of the crime

amounts to an entrapment only if it appears that the defendant

has done that which he would never have done were it not for

the inducement of Government operatives. United States y.

Groessel, 440 F.2d 602, 606 (Sth Cir.), cert.denied, 403 U.S.

933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971); see United States

v. Puma, 548 F.2d 508 (Sth Cir. 1977). Although the record

contains evidence upon which a jury might conclude that

defendant was induced by a Government informer to commit a

crime that he was not otherwise predisposed to commit, the

evidence was not “so overwhelming that it was ‘patently clear’

or ‘obvious’ that [defendant] was entrapped as a matter of

law.’ United States v. Groessel, 440 F.2d 602, 606 (Sth Cir.)

(and cases therein), cert.denied, 403 U.S. 933, 91 S.Ct. 2263,

29 L.Ed.2d 713 (1971).

AFFIRMED.

A.12

IN THE

UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

Case No. 77-5336

(USDC #76-6088-CR-CA)

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

vs-

CHARLES FREDERICK BOWER,

Defendant-Appellant.

PETITION FOR REHEARING

COMES NOW the Defendant and makes this Petition for

Rehearing in the above cause and that other alternate relief

mentioned below for this:

FIRST: That the panel deciding this appeal recognized

that the highest court of the State of Florida has construed the

Florida Statutes relating to the carrying of firearms on the

person (chapter 790, Florida Statutes) in such a manner that it

is not unlawful for one within his own home to carry a firearm

concealed on his person [Peoples v. State, 287 So.2d 63 (Fla.

1973)|. However, this court has opined that pursuant to the

statute [§ 790.07(2)] it would be unlawful if the homeowner

within his home was committing the felony of delivery ot

cocaine and the firearm played no part in the commission of

that felony but was simply on the person of the homeowner. In

short, although the defendant-homeowner /awfully concealed a

firearm on his person, the mere fact that subsequently within

his home he delivered cocaine to another while the firearm was

on his person, and in no way used by him, created an offense

1.

of unlawfully carrying a firearm.

No decision with this construction was ever promulgated

by the courts of the State, the final arbiters of the meaning of

state law.

Nominally, it appears the two provisions of the statute are

in conflict. Penal statutes in Florida are read liberally in the

favor of the Defendant and against the State. See: State ».

Winters, 346 So.2d 991 (Fla.1977); see also: United States y.

Gaskin, 320 U.S.527 (1944). The construction employed by

the panel deciding this cause construed it to the contrary.

The ambiguity is heightened by the statute when it speaks

exempting some felonies in which the unlawful carrying of a

firearm does not constitute an offense. After specifically

enumerating certain specific offenses the statute recites "

or other similar offenses.” Nevertheless, the decision sub

judice resolves all ambiguities against the defendant and in

favor of the State.

In the absence of a definitive decision by the highest

state court resolving the language and application of the statute

this Court ought grant rehearing and certify the following

question to the Supreme Court of Florida, to wit:

WHERE THE CARRYING OF A CONCEALED

FIREARM BY A HOMEOWNER IN HIS OWN

DWELLING HOUSE CONSTITUTES NO

OFFENSE, IS THAT POSSESSION OF A FIRE-

ARM MADE UNLAWFUL MERELY BECAUSE

THE HOMEOWNER MAY POSSESS COCAINE

WITH THE INTENT TO DELIVER THE SAME

PARTICULARLY WHERE THE FIREARM

PLAYS NO PART IN THE OFFENSE LAST

AFORESAID.

Or, in the alternative, since this decision establishes an

offense never previously recognized by the State Courts of

Florida, this case should be heard en bane by this Court. Par-

ticularly, since the trial court in overruling the magistrate,

refusing to dismiss the Count and submitting it to the jury

resolved this issue differently from the panel decision in this

te

o>

ee ~~

instance. The trial court in granting the directed judgment of

acquittal did so since the homeowner merely possessed the

firearm on his person and in no way attempted to employ it in

the posssession (with intent to deliver) of cocaine. This Court

has held the naked possession by the homeowner in his home.

at the time he possessed or distributed the cocaine, violates the

Statute regardless of his right to possess it concealed on his

person while in his dwelling house.

SECOND: This Court recognized that a policeman lawfully

possessing a firearm but who commits a felony is exempt from

the operation of the statute. However. the right of the home-

OWner to possess the firearm, concealed on his person, while in

his dwelling house is equal to his possessing a license to do so

since the homeowner under those circumstances is exempt from

the required license. Fach being appropriately licensed to carry

the firearm (one by grant and the other by exemption) is

lawfully carrying the firearm. Each would be equally respon-

sible for any felony committed while so carrying the firearm

but neither would be guilty of “unlawfully” carrving the

firearm,

THIRD: The decision of this Court which summarily holds

the Defendant was not entitled to the address of the identified

informant [Richard Clegg] appears wholly contrary to the

holdings of the Supreme Court wherein it pointed out the value

of the address of a witness. See: Alford ». United States, 282

U.S. 687 (1931); Smith v. Ilinois, 390 U.S. 129 (1968).

FOURTH: The opinion asserts the Defendant was granted

“the right to interview Clegg at any time before trial”. Such is

contrary to the facts. The government was to only produce the

informant. Clegg, just prior to trial. Thereupon, the Defendant

was limited to such interview. with no address for the infor-

mant or the ability to learn anything of him in his community

or to garner impeaching materials.

FIFTH: Though the Defendant relied upon a defense of

entrapment by a paid government informant and the ability of

the informant to lure the Defendant into criminal activity was

an issue, the trial court refused to permit the Defendant to

inquire into the total amounts paid by the DEA to the infor-

mant for his services as such and limited the inquiry to solely

the amount paid in this case. This court by its opinion

approved that ruling and dispatched the same by asserting the

same was not relevant evidence. Undoubtedly, this Court over-

looked the fact that the length of service, the experience, the

number of instances when the informant was “able” to cause

the arrest of others (and the amount he was paid therefor)

would shed light on whether the defendant was “‘lured”’ into the

criminal act. The circumstances are clearly akin to the ability of

a salesman, it is not measured by a single sale but rather on his

many sales. The jury may have had the balance tipped in the

favor of the Defendant’s assertion of entrapment if they knew

of the long series of Occasions when others were led to commit

un offense by the informant. Compare: Davis v. Alaska, 415

U.S. 308 (1974),

WHEREFORE, the Detendant aforesaid moves this Court

to: (1) grant rehearing. (2) grant rehearing and certify an

unresolved question of State [Florida] Law to the highest

court of the State. and (3) grant rehearing en bance, or either of

the foregoing.

| HEREBY CERTIFY that a copy of the foregoing

Petition for Rehearing has been furnished by mail to The

Office of the United States Attorney, Attn: James E. McDonald,

Assistant U.S.Attorney, 300 Ainsley Building, 14 N.E. Ist

Avenue, Miami, FL, 33132, this 29 June 1978.

Respectfully submitted,

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale, FL 33301

Telephone: (305) 467-6767

py. /s/ Ray Sandstrom

RAY SANDSTROM ~

a