Petition — Perl v. United States

Z Bupreme Court, i

FILED

DEC 19 1978

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-996

WILLIAM R. PERL,

Petitioner,

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATHAN LEWIN

SETH P. WAXMAN

MILLER, CASSIDY, LARROCA

& LEWIN

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys for Petitioner

ee eae ne otiiesaaanal

THE CASILLAS PRESS, INC.-—1717 K Street, N. W.—Washington, D. C.-—223-1220

Pith e ear en Sy

ete

mn ca al aa

TABLE OF CONTENTS

OPINIONS BELOW.

JURISDICTION .

QUESTIONS PRESENTED .

STATEMENT .

CONCLUSION

AUTHORITIES CITED

Cases:

Beasley v. State,

282 P.2d 249 (Okla. Crim. App. 1955).

Billingsley v. United States,

274 F. 86 (6th Cir.), cert. denied,

257 US. 656 (1921) .

Hampton vy. United States,

425 US. 484 (1976) .

Henderson v. United States,

237 F.2d 169 (Sth Cir. 1956) .

Koscak v. State,

160 Wis. 255, 152 N.W. 181 (1915).

Lopez v. United States,

373 U.S. 427 (1963) .

Lutfy v. United States,

198 F.2d 760 (9th Cir. 1952) .

=

15

12

12

10

12

12

10

14

(ii)

Notaro v. United States,

363 F.2d 169 (9th Cir. 1966) .

People v. Lewis,

285 Ill. App. 171, 1 N.E. 2d 696,

aff'd, 365 Ill. 156, 6 N.E. 2d 175 (1936).

People v. Moran,

1 Cal. 3d 755, 83 Cal. Rptr.

411, 463 P.2d 763 (1970) .

Sherman v. United States, *

356 U.S. 369 (1958) .

Sorrells v. United States,

287 U.S. 435 (1932) .

United States v. Berrigan,

283 F. Supp. 336 (D. Md. 1968), aff'd sub nom.

United States v. Eberhardt, 417 F.2d 1009 (4th

Cir. 1969), cert. denied, 397 U.S. 909 (1970)

United States v. Garcia,

546 F.2d 613 (Sth Cir.), cert.

denied, 430 U.S. 958 (1977)

United States v. Riley,

363 F.2d 955 (2d Cir. 1966) .

United States v. Russell,

411 US. 423 (1973) .

United States v. Watson,

489 F.2d 504 (3d Cir. 1973) .

Page

14

12

11

11,13

14

10

14

(iii)

Statutes and Regulations:

18 U.S.C. $371

18 U.S.C. $922(a\(3)

18 U.S.C. $922())

18 U.S.C. $970(a)

28 U.S.C. $1254(1) .

Miscellaneous:

22 C.J.S. Criminal Law $45(2) (1961) .

21 Am. Jur. 2d Criminal Law $143 (1965)

Note, Entrapment, 73 Harv. L. Rev. 1333 (1960) .

Note, 70 Harv. L. Rev. 1302 (1957).

Working Papers of the National Commission

on Reform of Federal Criminal Laws (1970) .

ig

12-13

ee

IN THE

Supreme Court of the United States

October Term, 1978

WILLIAM R. PERL,

Petitioner,

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinions of the court of appeals, not yet reported,

are reproduced at Appendix A (pp. la-l6a infra). No

opinion was filed by the district court.

JURISDICTION

The opinions and judgment of the court of appeals were

filed on September 22, 1978. A timely petition for rehear-

ing was denied on October 20, 1978 (Appendix B, p. 17

a, infra). On November 13, 1978, Mr. Chief Justice Bur-

ger extended petitioner’s time for filing a petition for a

writ of certiorari to and including December 19, 1978

(Appendix C, p. 18 a, infra). Jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the trial judge correctly took from the jury

the defense of entrapment where the individual who alleg-

edly entrapped the petitioner was not an established in-

former but instigated and induced petitioner’s offense ex-

clusively for the purpose of reporting the offense to law

enforcement officials and did, in fact, make such a report

before the offense was consummated.

2. Whether the entrapper’s own admissions that he was

working for the intelligence and security forces of a for-

eign government that wished to have the defendant prose-

cuted and the fact that petitioner had been the target of

substantial governmental interest and surveillance over the

preceding years constituted sufficient proof of government

involvement to warrant submission of the entrapment de-

fense to the jury.

STATEMENT

Following an eight-day jury trial, petitioner was convicted

of wilfully attempting to damage property of foreign offi-

cials (18 U.S.C. §970(a)), unlawfully receiving a firearm

from outside the State of Maryland (18 U.S.C. §922(a)(3)),

and conspiracy (18 U.S.C. §371) — all in connection with

an unconsummated attempt to shoot out windows in the

residences of two Second Secretaries of the Soviet Embassy.!

At trial there was no dispute regarding most of the events

that transpired. The defense turned on issues of entrap-

ment and intent. The trial judge, however, refused all en-

trapment instructions and told the jury that “entrapment

is not a defense in this case.’’ Petitioner was fined

$12,000, given a two-year suspended sentence, and placed

on three years’ supervised probation. The court of appeals

reversed petitioner’s conviction on the conspiracy count,

but affirmed his conviction on the two substantive counts.

Petitioner is a 71-year-old retired psychologist and col-

lege professor who has been suffering from Parkinson’s

Disease (Tr. 1118).2 A survivor of Nazi persecution, he has

long been active in humanitarian causes, particularly those

dealing with the welfare and protection of fellow Jews.

He founded the Washington, D.C., chapter of the Jewish

Defense League (“JDL”) and, throughout the events encom-

passed in this lawsuit, served as its president. It was estab-

lished at trial that, as the court of appeals concluded, “both

he [Dr. Perl] and the Washington Chapter [of the JDL]

have a reputation for non-violence” (p. 2a, infra).

The principal witness against Dr. Perl was Reuven Lev-

tov, a former employee of the Embassy of Israel and frog-

man in the Israeli military. Lev-tov’s past included a his-

tory of mysterious trips to Israel, a trial of failed business

ventures, and a recent formal repudiation of Israeli citizen-

ship. Lev-tov testified that he had come to feel very “bad”

I Petitioner was acquitted on a fourth count charging receipt of a

stolen firearm in violation of 18 U.S.C. §922(j).

2 “Tr.” refers to the pages of the trial transcript, portions of which

were reprinted in the Joint Appendix filed with the court of appeals.

about acts of terrorism being perpetrated in the name of

various Jewish causes and determined to “try to stop it”

(Tr. 473-474). He conceived a plan to induce a leading

JDL figure to join him in committing some violent act

and then to deliver his accomplice to the authorities prior

to actual commission of the crime.

Pursuant to this plan, sometime in 1973, Lev-tov attended

a meeting of the Washington JDL at petitioner’s home. He

sought out Dr. Perl, introduced himself as a former Israeli

Navy officer with good contacts at the Israeli Embassy

(Tr. 1175), and made himself “available if any violent acts

should be carried out” (Tr. 477). In Lev-tov’s words, pe-

titioner’s response was, “[W]Je don’t do things like that

here in Washington” (Tr. 477).

Petitioner and Lev-tov did not meet again until the

spring of 1976. Each man claimed that the other initiated

the contact. Lev-tov testified that at a meeting on April

10 Dr. Perl told him that “maybe something like that goes

on in New York will start here” (Tr. 481). Lev-tov under-

stood this to mean that the “same violent acts” that had

occurred in New York would start in Washington, and he

replied that he was ready (Tr. 481-482). Eight days later

Lev-tov testified, the two met again, and Dr. Perl men-

tioned that a firearm was coming from New York (Tr. “or

Lev-tov reported neither of these meetings to the authori-

ties ““[b]ecause I didn’t want anybody to get involved un-

til the actual time to do it, somebody might tail_me, or

foul up the whole thing” (Tr. 503).

3 Lev-tov’s testimony differed significantly from entries in his diary,

which was produced at trial and contained indicia of recent fabrica-

tion (See Tr. 642-647).

Dr. Perl testified that Lev-tov called him in late March

and asked to come over. At the meeting two weeks later,

Lev-tov told him he was working for “Israeli intelligence,”

which had learned that the Soviet Union was planning to

arrest all who had registered to immigrate to Israel and to

deport “many thousands of others to the East” (Tr. 1184).

The Israeli government had decided, Lev-tov said, that the

only thing that might prevent this mass deportation would

be if American Jews brought it home very firmly to the

Russians that they couid not embark on such a program

without strong international repercussions.

Dr. Perl then asked what kind of activities would be in-

volved, and Lev-tov said it would be necessary to take

“final and definite actions against some individuals.” Dr.

Perl responded, “This is not my cup of tea, count me out.”

Lev-tov then reminded Dr. Perl of his experience at the

hands of the Nazis and told him that “American Jews

could have saved many people if they would have spoken

up against the Nazi diplomats here.” Lev-tov “put pres-

sure on me,” Dr. Perl testified, by reminding him that num-

erous members of his family had been killed by the Nazis

(Tr. 1186-1188).

When Dr. Perl refused to go along with any assassina‘ion

scheme, Lev-tov suggested alternative courses: He could

shoot into the windows of the Russian diplomats’ cars as

they were driving home from the Soviet Embassy, and the

JDL, through Dr. Perl, could publicize and take responsi-

bility for the shooting. The reason that the JDL should

claim responsibility, Lev-tov said, was that it was of critical

importance that the Israeli government not be linked to the

shooting incident. Again, however, Dr. Perl declined to be-

come involved. He told Lev-tov: “I can’t do it. I can’t

work on something like that and I won’t” (Tr. 1189).

At that point, Dr. Perl testified, Lev-tov made another,

less violent proposal: He suggested that the protest take

the form of shooting out windows in the home of one of

the Soviet diplomats. Again Lev-tov urged Dr. Perl to co-

operate with him, telling him that (Tr. 1190):

{Y]Jour relatives could be looking over your

shoulder, those who were murdered, they have

every right to expect from you, you try to pre-

vent more murders and remember how you felt

when you were under the Nazis and the Ameri-

can Jews did nothing... .

Dr. Perl testified that he felt “blackmailed” by this pres-

suring (Tr. 1188). He then yielded and agreed to take part

in the scheme, with the understanding that he would handle

the publicity and announce that the Jewish Defense League

or the “Jewish Armed Resistance” was responsible for the

shooting incident (Tr. 336-337).

On April 18 Dr. Perl gave Lev-tov the addresses of two

Soviet diplomats. Lev-tov suggested that Dr. Perl supply him

with a rifle. Dr. Perl expressed surprise and told Lev-tov he

had understood his role was to be limited to publicity only.

Lev-tov told him, however, that he could not supply the

rifle because it would risk exposing the Israeli government’s

involvement in the incident. After further urging from Lev-

tov, playing on Perl’s religious and nationalistic feelings,

Dr. Perl agreed to try to provide a rifle (Tr. 1197).

At subsequent meetings Dr. Perl supplied Lev-tov with

a .22 caliber rifle and ammunition, both received from JDL

sources in New York. Lev-tov reported that Israeli intelli-

gence had verified the addresses of the Russian diplomats.

The afternoon of May 23 was set for the shooting (Tr.

487, 495, 506).

On May 19 Lev-tov visited the Israeli Embassy and re-

ported to an official there that he had been asked to shoot

out the windows. The embassy official told him “to con-

tact the authorities” (Tr. 508). Lev-tov did not immedi-

ately do so, but he received a visit the following afternoon

from two FBI agents, who had been alerted by the Israeli

embassy. Lev-tov gave them the rifle and bullets as well

as an account of his meetings with Dr. Perl. It was agreed

that Lev-tov would continue with the plan. He was given

another gun and blanks and was instructed to wear a body

recorder at all subsequent meetings with Perl (Tr. 514-516,

526, 700).

On May 23 Lev-tov acted out the planned shooting under

the surveillance of the FBI and thereafter called Dr. Perl as

previously arranged. The FBI did not arrest Dr. Perl im-

mediately. Rather, wearing a body recorder, Lev-tov was

sent to Dr. Perl with a spurious federal grand jury sub-

poena to see whether Dr. Perl would attempt to suborn

perjury on the part of Lev-tov (Tr. 424-425). Dr. Perl

did not. He was then indicted and arrested.

Lev-tov denied that he had communicated with the FBI

or with any federal agency before his meeting with Dr.

Perl in 1973 or the first meeting in 1976 (Tr. 550). FBI

agents who testified at trial similarly denied that Lev-tov

had been a government agent or informer before May 20,

1976, when he was visited by the FBI (Tr. 264, 267-268,

275-276, 350-352, 428). Lev-tov admitted, however, that

he had told an acquaintance that he was “working for Is-

raeli intelligence” (Tr. 156-158), and another witness testi-

fied that Lev-tov had told him that he had participated in

these events at the request of “the Israeli Government” (Tr.

241-242). In addition, Lev-tov told petitioner’s counsel less

than two days before trial began that he had been called

by “Israeli security” in anticipation of his testimony at trial

(Tr. 1215). There was also voluminous evidence that the

FBI had surveilled Dr. Perl and written substantial and de-

tailed reports concerning him for many years before the

events at issue (Tr. 282, 398-402). And in April 1976,

when Lev-tov first met with Dr. Perl, a federal grand jury

subpoena was served upon the telephone company for records

of Dr. Perl’s toll calls (Tr. 1394-1395).

At trial and again on appeal petitioner argued on two

grounds his entitlement to an entrapment instruction.

First, he argued that no showing of government involve-

ment in the scheme to entrap need be made if there other-

wise exists evidence that defendant was “induced to com-

mit a crime he had no predisposition to commit solely and

exclusively in order to have him handed over to authorities.”

Second, he argued that even if government involvement

need be shown, Dr. Perl had presented evidence (1) that

Lev-tov was an agent of the Israeli government, which in-

tended to turn Dr. Perl over to American law enforcement

authorities and (2) to permit an inference that Lev-tov had

been working in contact with federal agents prior to the

time he reported Dr. Perl to the Israeli embassy. Appro-

priate instructions covering these legal theories were offered

to the trial judge. The judge rejected these instructions

and told the jury that entrapment was not an available

defense.

In affirming the trial court’s refusal to deliver any of

the petitioner’s proposed instructions, the court of appeals

did not question the evidence that Dr. Perl had commited

the offenses only because of the inducements of Lev-tov,

whose intention throughout was to trap Dr. Perl and turn

him over to the authorities. Rather, it held* that under

federal law “‘[e]ntrapment cannot result from inducements of

a private citizen but must be the product of conduct of gov-

ernmental agents’” (p. 5 a, infra). The court also held

that entrapment by an agent of a foreign government could

never constitute a legal defense (p. 7a, n.3, infra), and it

ruled that petitioner had failed to show sufficient federal in-

volvement in Lev-tov’s plan to warrant a jury instruction on

that theory.> In reaching these results, the court of appeals

explained its rationale as follows (p. 7a, n. 3, infra):

As we view it, the principal purpose of the en-

trapment defense as it has developed in the

federal courts is to deter official misconduct in

the investigation of criminal activity.

REASONS FOR GRANTING THE WRIT

1. The decision of the court of appeals rejecting petition-

er’s entrapment defense conflicts squarely with the rationale

4 The court quoted from United States v. Garcia, 546 F.2d 613,

615 (Sth Cir.), cert. denied, 430 U.S. 958 (1977).

5 In place of the requested entrapment instructions, and over peti-

tioner’s strong objection, the Court delivered a lengthy instruction to

the effect that petitioner could not properly rely on “higher law”

in his defense (Transcript of Nov. 24, 1976, pp. 18-19). This instruc-

tion was taken, almost verbatim, from the same trial judge’s instruc-

tion in the prosecution of Rev. Phillip Berrigan. United States v. Ber-

rigan, 283 F.Supp. 336 (D. Md. 1968), aff'd sub nom. United States y.

Eberhardt, 417 F.2d 1009 (4th Cir. 1969), cert. denied, 397 U.S. 909

(1970). Petitioner had, at all times, disavowed reliance on any such

defense and introduced no supporting testimony. Indeed it was of

critical importance to petitioner’s case to impress upon the jury that

petitioner did not act from moral conviction, but only after being in-

duced and prevailed upon by Lev-tov.

10

for the entrapment defense explained. recently and authori-

tatively by this Court in Hampton v. United States, 425

U.S. 484 (1976), and in United States v. Russell, 411 U.S.

423 (1973). The “principal purpose of the entrapment de-

fense” is not, as the court of appeals believed, “to deter

official misconduct in the investigation of criminal activity”

J. Ja, n. 3, infra), but to prevent the criminal prosecution of

those who lack “the intent or predisposition ... to com-

mit the crime.” United States v. Russell, 411 U.S. at 429.

In both Russell and Hampton this Court emphasized the

distinction between a rule of deterrence, designed to pre-

vent governmental misconduct, and a rule of fairness to in-

dividuals who are not, in the absence of entrapment, pre-

disposed to commit criminal offenses. In its Hampton

opinion (425 U.S. at 488) this Court approved the rule

established in Sorrells v. United States, 287 U.S. 435, 442

(1932), under which the availability of the entrapment de-

fense turns on whether the entrapper’s activity was de-

signed to “implant in the mind of an innocent person the

disposition to commit the alleged offense and induce its

commission.”

Application of the proper rationale of entrapment — as enun-

ciated in Russell and Hampton — requires reversal of petitioner’s

conviction. If the jury believed Dr. Perl — whose testimony

was amply corroborated by his established reputation for

non-violence and by many internal contradictions in the

testimony of Lev-tov — it would have had to find that this

was an instance in which the offense was never to be car-

ried out but had been created by Lev-tov solely as a trap

to ensnare Dr. Perl and hand him over to the authorities

— precisely “the manufacturing of crime” decried in many

of this Court’s entrapment opinions. E.g., Lopez v. United

States, 373 U.S. 427, 434 (1963) (emphasis in original).

1]

2. No federal appellate decision has yet, to our knowl-

edge, recognized the defense of entrapment by a private

citizen who was not previously a government informer but

whose conduct was motivated entirely by law enforcement

objectives.© In the absence of any indication to this effect

from this Court, and in view of the emphasis, until recent-

ly, of the element of government misconduct in the law of

entrapment, it is not surprising that there has not been such

a ruling from a lower court. But at least four States have

recognized such a defense as a matter of local law. In

People v. Moran, \ Cal. 3d 755, 761, 83 Cal. Rptr. 411,

414, 463 P.2d 763, 766 (1970), the California Supreme

Court, en banc, held that “if the crime was suggested by

another person, whether or not a law enforcement officer,

for the purpose of entrapment, the defendant is not crimi-

© Sherman yv. United States, 356 U.S. 369 (1958), was a case in

which there was minimal government involvement in the particular

offense committed by the accused. The defendant was entrapped

by one Kalchinian, who was neither a law enforcement officer nor

working for or with the acquiescence of law enforcement officers at

the time he induced the defendant to commit the charged offenses.

The only connection between Kalchinian and law enforcement auth-

orities was that he had previously served as an informer and that he

induced the defendant to commit an offense with the intention of

informing on him as soon as the defendant violated the law. Despite

the fact that the government knew nothing of Kalchinian’s relations

with the defendant until after the crime was committed, the Court

held the entrapment defense available. Indeed, it found the defen-

dant to have established entrapment as a matter of law.

Unlike Kalchinian, Lev-tov had never previously served as a govern-

ment informer. But under tiis Court’s recent explanations of the

basis for the entrapment defense, this difference is insignificant.

Whether the instigator has ever talked to the government before on

a different case is immaterial from the vantage point of the defend-

ant.

12

nally liable.”” The Oklahoma Criminal Court of Appeals

ruled in Beasley vy. State, 289 P.2d 249, 254 (Okla. Crim.

App. 1955), that entrapment by private individuals would

give rise to a defense if the private individuals lured ‘“‘an

otherwise innocent person” into the commission of an of-

fense and if “officers, although not necessarily parties to

the initial proceedings, . . . [were] fully informed of the

purported commission of the criminal act before it was com-

mitted.”” Both these standards are met, of course, on the

facts of this case. See also People v, Lewis, 285 Ill. App.

171, 1 N.E. 2d 696, aff'd, 365 Ill. 156, 6 N.E. 2d 175

(1936); Koscak v. State, 160 Wis. 255, 152 N.W. 181 (1915);

22 C.J.S. Criminal Law 845(2) (1961); 21 Am. Jur. 2d Cri-

minal Law $143 (1965).

3. Even under the more traditional view of entrapment,

which requires proof of official involvement in the efforts

of the entrapper, the evidence here was sufficient to sub-

mit the defense to the jury. The substantial evidence that

Lev-tov was working for a foreign government which wished

to see Dr. Perl apprehended was a basis for the entrap-

ment defense. Federal courts have uniformly held that

where State officers induced an offense, entrapment is avail-

able as a defense to a federal prosecution. See, e.g., Hen-

derson v. United States, 237 F.2d 169, 176 (Sth Cir. 1956);

Billingsley v. United States, 274 F. 86 (6th Cir.), cert.

denied, 257 U.S. 656 (1921). This is true even if the

federal officers were unaware of the activities of the State

agents at the time the defendant was induced to commit

the crime. The State agent, acting for law-enforcement

purposes is the equivalent of federal law-enforcement per-

sonnel since the target of his efforts is ultimately turned

over to federal officers. See Note, Entrapment, 73 Harv.

L. Rev. 1333, 1340-43 (1960); Note, 70 Harv. L. Rev.

13

1302, 1306 (1957); Working Papers of the National Com-

mission on Reform of Federal Criminal Laws 321-22 (1970).

The same analysis applies to agents of foreign govern-

ments working in this country who act with the intention

of having an American citizen convicted of a federal of-

fense. Like State officers, they become a de facto part of

the federal law-enforcement machinery. There was evidence

at trial from which the jury could have concluded that

Lev-tov was acting for Israeli intelligence or other Israeli

government offices at the time he induced Dr. Perl to com-

mit the offenses charged. Hence, it was error to refuse

the entrapment instruction.

4. Moreover, the court of appeals applied an erroneous

standard in ruling that, insofap as.involvement by the fed-

peals recognized that under She the Epment de-

fense is available “even Wh

prior knowledge of nor directdifvolyem

to entrap.” But it held that “@irect proof of prior deal-

ings between government and entrapper is a prerequisite

to raising a Sherman-type entrapment defense” (p. 9a,

n.5, infra).

The evidence of the federal government’s prior involve-

ment in Lev-tov’s efforts was circumstantial. There was

evidence that at the time Lev-tov first met Dr. Perl in

1976, the FBI sought and secured Dr. Perl’s telephone

records by a grand jury subpoena. There was also volu-

minous evidence that the FBI had been surveilling Dr.

Perl and had been highly interested in all his activities well

before that time. Although Lev-tov denied any contract

with the FBI, the jury should have been permitted to evalu-

14

ate the credibility of that denial against the circumstantial

proof supporting the opposite inference. The court of ap-

peals erroneously held that only direct proof of government

involvement could justify submitting the issue to the jury.

This limitation as to the type of proof required of a de-

fendant in an entrapment case finds no support in federal

law. To the contrary, the cases hold that if there is “any

evidence” in the record that the defendant has been induced

into committing the offense, the issue of entrapment is for

the jury. This is so “however incredible it might appear”

and “however unreasonable the judge would consider a ver-

dict in favor of defendant to be.” United States v. Watson,

489 F.2d 504, 506 (3d Cir. 1973); Notaro v. United States,

363 F.2d 169, 172-74 & n.6 (9th Cir. 1966) (quoting Lufty

v, United States, 198 F.2d 760, 762 (9th Cir. 1952));

United States v. Riley, 363 F.2d 955, 959 (2d Cir. 1966).

The court of appeals did not find that petitioner had sub-

mitted no evidence. Indeed it stated (p. 9a, infra):

As we view the record, defendant did establish

some government interest in the activities of Dr.

Perl. It appears that the FBI had maintained a

file on Dr. Perl for some years and that, in April

1976, at the same time Dr. Perl and Lev-tov were

formulating their plans, a subpoena was issued to

obtain Dr. Perl’s telephone records.

From this and other evidence in the record the jury could

have inferred that Lev-tov was working in cooperation

with federal agents prior to his April 1976 meetings with

Dr. Perl. The instruction tendered by the defense on this

theory should have been given, and the jury should not

have been told, in the unequivocal terms used, that “en-

trapment is not a defense in this case.”

15

CONCLUSION

For the reasons stated herein, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

NATHAN LEWIN

SETH P. WAXMAN

MILLER, CASSIDY, LARROCA

& LEWIN

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys for Petitioner

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1416

United States of America,

Appellee,

v.

‘William R. Perl,

Appellant.

Appeal from the United States District Court for the Dis-

trict of Maryland, at Baltimore. Edward S. Northrop, Chief

Judge.

Argued July 20, 1978 Decided September 22, 1978

Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge,

and HALL, Circuit Judge.

Nathan Lewin (Miller, Cassidy, Larroca & Lewin on brief)

for Appellant; Richard D. Bennett, Assistant United States

Attonrey (Russell T. Baker, Jr., United States Attorney, on

brief) for Appellee.

WINTER, Circuit Judge:

William R. Perl was convicted of willfully attempting to

damage property utilized by foreign officials in violation of

18 U.S.C. § 970, of unlawfully receiving a firearm purchased

outside the State of Maryland in violation of 18 U.S.C. § 922(a)

(3), and of conspiring with unknown persons to commit these

2a

crimes in violation of 18 U.S.C. § 371. He was fined $12,000,

given a two-year suspended sentence, and placed on three years’

supervised probation. On appeal he urges a number of grounds

of reversal, principally that the district court erroneously de-

clined to give an entrapment instruction, that it erroneously

instructed the jury on a defense not asserted at trial, and that

it prejudicially confused the jury by its instructions on the

conspiracy count. We agree that there was reversible error

in the conspiracy conviction. The initial charge on this count

was erroneous and the district court’s attempt to cure the

error was ineffective and likely left the jury in a state of

confusion prejudicial to defendant. We therefore reverse de-

fendant’s conviction on the conspiracy count and award him

a new trial. As to defendant’s other contentions, however,

we find no error and therefore affirm his conviction on both

substantive counts.

The acfendant, Dr. William R. Perl, has long been active

in Jewish affairs, both in Europe and in this country, and,

as a survivor of the Nazi persecutions, he has been particu-

larly concerned about the welfare of Jews living in the Soviet

Union. Among the organizations in which he has been ac-

tive is the Jewish Defense League (JDL). He was a founder

of the Washington, D.C., chapter of that organization and, at

the time that the events material to the instant case com-

menced, was serving as its president. Both he and the Wash-

ington Chapter have a reputation for non-violence.

Sometime in 1973, an Israeli expatriate named Reuven

Lev-tov attended a meeting of the Washington Chapter of

the JDL held at the home of Dr. Perl. By all accounts,

Reuven Lev-tov was and is a shadowy and intriguing figure.

After ten years in the Israeli Navy, where he was a member

of its elite “special forces,’’ Lev-tov joined the Israeli foreign

3a

service and was assigned duty at the Israeli embassy in Wash-

ington as chauffeur and apparent bodyguard to the ambas-

sador. In 1965, he married an American citizen and shortly

thereafter was dismissed from service at the Israeli Embassy.

In 1968, he returned to Israel for a three-year period before

settling permanently in this country in 1971. He subsequent-

ly became a specialist in electrolysis, maintaining an office

in Washington, D.C. Recently he renounced his Israeli citi-

zenship, after having become an American citizen some ten

years earlier.

At trial, Lev-tov testified that by 1973 he had come to

feel bad about acts of terrorism perpetrated in the name

of various Jewish causes and became determined to take

some action to combat its spread. To this end, he con-

ceived a plan to induce a leading Jewish figure to join him

in committing some violent act. Before the commission of

the act, however, it was Lev-tov’s intention to turn his ac-

complice over to the authorities. He apparently chose as

his victim Dr. Perl and, with this plan in mind, attended

the 1973 JDL meeting at Dr. Perl’s home.

At the conclusion of this meeting, Lev-tov managed to en-

gage Dr. Perl in private conversation. Lev-tov made known

his own concern for the plight of Soviet Jews and his avail-

ability to help carry out any act of violence suitable to Dr.

Perl. Dr. Perl gave Lev-tov no encouragement, stating, accor-

ding to Lev-tov, that “we don’t do things like that here in

Washington.”

Nothing more occurred until the spring of 1976, by which

time Dr. Perl had developed Parkinson’s Disease and was

under constant medication. On April 10, 1976, Dr. Perl

and Lev-tov met at a motel in the Maryland suburbs and

agreed that an appropriate form of protest would be to

shoot out the windows of the apartments of two Soviet of-

4a

ficials living in Prince George’s County, Maryland. It was

agreed that Lev-tov would do the actual shooting and that

Dr. Perl would publicize the event and announce that it

was the responsibility of the JDL. At a subsequent meet-

ing, it was agreed that Dr. Perl would also supply the wea-

pon and ainmunition. Dr. Perl then took steps to obtain

a rifle from JDL sources in New York. He was successful

in these efforts and, on May 6, turned the weapon over to

Lev-tov, and, on May 7, the ammunition to fire it. May 23,

a Sunday, was fixed as the date for the shooting.

On May 19, Lev-tov went to the Israeli Embassy, there

telling an official that he had been asked to shoot out the

windows of two apartments belonging to Soviet officials.

He was advised to contact “the authorities.”” However, be-

fore Lev-tov could make such contact he was approached

at his office by two FBI agents who had been alerted to

the situation by an attache at the Israeli Embassy. Lev-tov

made a detailed statement to the agents concerning his as-

sociation with Dr. Perl, and it was agreed that Lev-tov would

continue with the plan. He was instructed to wear a body

recorder at his next meeting with Dr. Perl, which was to

take place on May 22. The recording was later introduced

as evidence against Dr. Perl at trial. On May 23, the planned

shooting was carried out with a weapon and blanks provided

by the FBI.

On June 29, 1976, Dr. Perl was indicted for his role in

the incident. Trial was held in November, 1976. Dr. Perl

was convicted on three of the four counts on which he was

charged, and this appeal followed.

Il.

Dr. Perl freely admits that he participated in the plan to

shoot out the windows of the Soviet officials and that he

eee ee Ea ee

5a

provided Lev-tov a weapon for this purpose. At trial, his

only defense was that he was entrapped by Lev-tov and that,

therefore, no criminal liability should attach. In keeping

with this theory of the case, the defense proposed three al-

ternative entrapment instructions to the district court. The

trial court rejected all three, instructing the jury flatly that

“entrapment is not a defense in this case.”

On appeal, defendant makes two separate arguments with

respect to the entrapment defense. First, he contends that

government involvement in the scheme to entrap should not

be treated as a necessary element in the federal defense of

entrapment and urges us to adopt this as the law of this cir-

cuit. Second, defendant argues that even if some govern-

ment involvement is required, there exists sufficient evidence

of such involvement in the instant case to entitle him to jury

consideration of the defense. We do not agree with either

contention.

The case are legion which either hold directly or state

as dictum that “[e]ntrapment cannot result from the induce-

ments of a private citizen but must be the product of con-

duct by governmental agents.” United States v. Garcia, 546

F.2d 613, 615 (5 Cir.), cert. denied, 430 U.S. 958 (1977).!

On numerous occasions, this court, without ever directly so

holding, has clearly expressed its view that federal law does

not recognize the defense of private entrapment. United States

| See, e.g., United States v. McClain, 531 F.2d 431, 437 (9 Cir.),

cert. denied, 429 U.S. 835 (1976); United States v. Maddox, 492

F.2d 104, 106 (5 Cir.), cert. denied, 419 U.S. 851 (1974); United

States v. DeAlesandro, 361 F.2d 694, 698-99 (2 Cir.), cert. denied,

385 U.S. 842 (1966); Johnson v. United States, 317 F.2d 127, 128

(D.C. Cir. 1963); United States v. Romano, 278 F.2d 202, 204 (2

Cir. 1960); Polski v. United States, 33 F.2d 686, 697 (8 Cir.), cert

denied, 280 U.S. 591 (1929).

6a

v. Tharpe, 443 F.2d 12, 13 (4 Cir.), cert. denied, 404 U.S.

866 (1971); United States v. DeVore, 423 F.2d 1069, 1071

(4 Cir. 1970), cert. denied, 402 U.S. 950 (1971); United

States v. Comi, 336 F.2d 856, 860 (4 Cir. 1964), cert. de-

nied, 379 U.S. 992 (1965); United States v. Sizer, 292 F.2d

596, 599 (4 Cir. 1961); Crisp v. United States, 262 F.2d

68, 69 (4 Cir. 1958).

Despite this vast array of precedent, defendant urges us

to recognize a private-entrapment defense. Under defend-

ant’s theory, no showing of government involvement in the

scheme to entrap need be made if there otherwise exists

evidence that defendant was “induced to commit a crime

he had no predisposition to commit solely and exclusively

in order to have him handed over to the authorities.” De-

fendant’s Proposed Instruction No. 23. While we recognize

that at least two states have adopted the defense of private

entrapment,? we believe that federal courts must require

some showing of government involvement in the alleged

scheme to entrap before the defense is recognized.

Entrapment, as it exists in federal law, is a statutory de-

fense. “It is rooted ... in the notion that Congress could

not have intended criminal punishment for a defendant who

has committed all the elements of a proscribed offense, but

was induced to commit them by the Government.” United

States v. Russell, 411 U.S. 423, 435 (1973) (emphasis ad-

ded). This view of legislative intent has remained firm since

the Supreme Court first recognized entrapment as a federal

defense in Sorrells v. United States, 287 U.S. 435 (1932).

There, Chief Justice Hughes wrote:

2 See People v. Moran, 463 P.2d 763, 766 n.4 (Calif. 1970);

Beasley v. State, 282 P.2d 249, 254 (Okla. Crim. 1966).

Ta

We are unable to conclude that it was the in-

tention of the Congress in enacting [a criminal]

statute that its processes of detection and enforce-

ment should be abused by the instigation by gov-

ernment officials of an act on the part of the per-

sons otherwise innocent in order to lure them to

its commission and to punish them.

287 U.S. at 448. Similarly, in Lopez v. United States, 373

U.S. 427, 434 (1963), the Court observed that “[t] he con-

duct with which the defense of entrapment is concerned is

the manufacturing of crime by law enforcement officials

and their agents.’’ (Emphasis added and deleted.)

In view of this longstanding and authoritative interpeta-

tion of legislative intent, we hold that a defendant, in order

to assert the defense of entrapment in a federal prosecution,

must produce evidence of government involvement in the

scheme to entrap. We therefore affirm the district court’s

rejection of defendant’s private entrapment instruction.?

3 By government involvement, we mean involvement of federal,

state or local law enforcement officials or their agents. See Hender-

son v. United States, 237 F.2d 169 176 (5 Cir. 1956). We do not

mean involvement by agents of a foreign government. One of de-

fendant’s three proposed entrapment instructions provided that the

“defense of entrapment is open to the defendant . . . if [Lev-tov]

was at [the time of entrapment] working on behalf of the Israeli

government, if the Israeli government intended to turn Dr. Perl over

to American law enforcement authorities.” Defendant’s Proposed

Instruction No. 26. As we view it, the principal purpose of the

entrapment defense as it has developed in the federal courts is to

deter official misconduct in the investigation of criminal activity.

As we have elsewhere said: “The defense of entrapment rests on

the premise that the purpose of law enforcement is the prevention,

not the manufacture of crime.”’ United States v. DeVore, supra,

423 F.2d at 1070. See also United States v. Sizer, supra, 229 F.2d

8a !

Alternatively, defendant argues that even if some show-

ing of government involvement in the entrapment plan is

required, there exists sufficient evidence of such involve-

ment in the instant case to entitle defendant to a standard

entrapment instruction.* Stated otherwise, defendant argues

that the district court erred when it decided as a matter of

law that even the traditional entrapment defense was un-

available to defendant. We disagree.

It is well established that entrapment is an affirmative

defense and that the “initial burden [is on defendant] to

go forward with some evidence, more than a scintilla, that

{the government or its] agents induced him to commit

the offense.” United States v. Harper, 505 F.2d 924, 926

(5 Cir. 1974). “If a defendant fails to carry the burden

on the issue of entrapment forward, he is not entitled to

submission of the issue to a jury.”” United States v. Groes-

sel, 440 F.2d 602, 606 (5 Cir.), cert. denied, 403 U.S. 933

(1971). Accord, Lopez v. United States, supra, 373 U.S.

at 435; United States v. DeVore, supra, 423 F.2d at 1071.

The duty of determining whether or not defendant has met

this initial burden is that of the district judge. United States

v. Teeslink, 421 F.2d 768, 771 (9 Cir. 1970).

In the instant case, the district court determined that de-

fendant failed to carry his initial burden of showing some

at 599. This purpose would no more be served by extending the

doctrine to include entrapment by foreign agents than it would be

by extending the defense to include entrapment by private citizens.

The district court, in our view, correctly rejected defendant’s pro-

posed instruction on foreign entrapment.

4 Defendant’s Proposed Instruction No. 27 would have instructed

the jury to acquit “if you have a reasonable doubt whether Reuven

Lev-tov was acting on behalf of any agency of the United States Gov-

ernment, and whether he prevailed upon Dr. Perl to commit offenses

he would not otherwise have committed. . . .”

9a

government involvement in Lev-tov’s plan to entrap Dr. Perl.

We cannot say that it erred in this determination. As we

view the record, defendant did establish some government

interest in the activities of Dr. Perl. It appears that the

FBI had maintained a file on Dr. Perl for some years and

that, in April 1976, at the same time Dr. Perl and Lev-tov

were formulating their plans, a subpoena was issued to ob-

tain Dr. Perl’s telephone records. We do not think, how-

ever, that such evidence of government interest in Dr. Perl

could reasonably support an inference of government involve-

ment in Ley-tov’s entrapment scheme. Without even a scin-

tilla of evidence to back up his speculations as to govern-

ment involvement, defendant was simply not entitled to

jury consideration of his entrapment defense.5 Cf. United

States v. DeVore, supra (defendant held not entitled to jury

instruction on entrapment where he produced evidence of

government solicitation but failed to produce evidence of

government inducement sufficient to create a doubt that

defendant was otherwise predisposed to commit the crime);

United States v. Comi, supra (defendant held not entitled

to jury instruction on entrapment where there existed no

5 Defendant relies heavily on Sherman v. United States, 356 US.

369 (1958), for the proposition the government involvement need be

neither great nor direct in order for the entrapment defense to be

available. While we agree that Sherman allows an entrapment defense

even where the government has neither prior knowledge of nor direct

involvement in the scheme to entrap, it still requires a showing that

the government and the entrapper have an established relationship

such that the government is estopped from denying responsibility for

the entrapment. In the instant case, defendant produced not a shred

of evidence linking Lev-tov to the United States government. Some

direct proof of prior dealings between government and entrapper is

a prerequisite to raising a Sherman-type entrapment defense. See also

United States v. Comi, supra, 336 F.2d at 860-61.

10a

evidence that any government agent initiated or in any

way induced the defendant to commit the crime).

III.

Defendant next contends that the district court erred in

giving a so-called “Berrigan” instruction. See United States

v. Berrigan, 283 F.S. 336 (D. Md. 1968), aff'd sub. nom.

United States v. Eberhardt, 417 F.2d 1009 (4 Cir. 196%),

cert. denied, 397 U.S. 909 (1970). In essence, this portion

of the charge instructed the jury that moral convictions or

adherence to a “higher law” constitute no legal justification

for criminal activity.6 Defendant asserts that it was improper

for the district court to give this instruction in light of de-

6 In full, the district court’s “Berrigan” instruction, which had

been requested by the government, was as follows:

Intent and motive should never be confused. Motive

is that which prompts a persen to act. Intent refers only

to the state of mind with which the act is done.

Personal advancement, financial gain, political reason,

religiious beliefs, moral convictions or some adherence

to a higher law even of nations are well recognized mo-

tives for human conduct. These motives may prompt

one person to voluntary acts of good and another to

voluntary acts of crime.

The law does not recognize political, religious, moral

convictions or some higher law as justification for the

commission of a crime no matter how good that motive

may be. The reason this is so is that such personal mo-

tives or firm beliefs, if you will, would enable the indi-

vidual holder to select the law which he would obey ac-

cording to those beliefs. These personal convictions could

prompt him to steal, rob, commit assaults upon those

holding contrary views and even to kill, under certain

circumstances.

lla

fendant’s repeated disclaimers throughout the trial of any

reliance on a “‘higher-law” defense. We disagree.

It is, of course, well established that the introduction of

an extraneous and irrelevant legal issue into the case by way

of the district court’s charge to the jury may so confuse or

mislead the jury that a new trial is warranted. “It is not

the function of the trial judge to instruct the jury on ab-

stract principles of law which have no bearing on the case.

Extraneous law may be quite as prejudicial as extraneous

facts. Verdicts should be based only on the evidence in the

case and the pertinent law as applied to that evidence.”

United States v. Hill, 417 F.2d 279, 281 (5 Cir. 1969).

See also Michaud v. United States, 350 F.2d 131 (10 Cir.

1965); Morris v. United States, 326 F.2d 192 (9 Cir. 1963);

United States v. Leggett, 312 F.2d 566 (4 Cir. 1962).

We are not persuaded, however, that the court’s “Berrigan”

charge was extraneous to the instant case. It is true that

Or, to put it another way, as Mr. Justice Goldberg

said in the case of Cox v. Louisiana:

The constitutional guarantee of libe:ty implies the

existence of an organized society maintaining public

order, without which liberty itself would be lost.

And he went on further to say in that case:

We also reaffirm the repeated decisions of this

Court, meaning the Supreme Court of the United

States, that there is no place for violence in a

democratic society dedicated to liberty under law,

and that the right of a peaceful protest does not

mean that everyone with opinions or beliefs to

express may do so at any time and at any place.

There is a proper time and a place for even the

most peaceful protest and a plain duty and re-

sponsibility on the part of all citizens to obey

all valid laws and regulations.

12a

defendant from the outset disclaimed any reliance upon a

“higher-law” defense. Nonetheless, we agree with the gov-

ernment that implicit in both the testimony of defense wit-

nesses and defendant’s closing argument was the suggestion

that Perl’s deep concern for the plight of Soviet Jewry in

some way explained his criminal activities. The district

court, which was in a position to assess firsthand the tenor

of the trial, may properly have concluded that the jury, _

however attentive, could well confuse logical explanation

with legal justification and that the best way to prevent

such confusion was to caution the jury against being swayed

by Dr. Perl’s motives. From the record before us, we can-

not say that the district court acted unreasonably in this

regard.

IV.

In Count One of the indictment, Dr. Perl was charged

under 18 U.S.C. § 371 with conspiring with unknown per-

sons (presumably his JDL “sources” in New York) to ob-

tain illegally a firearm for the purpose of damaging prop-

erty occupied by foreign officials. Because Lev-tov, through-

out his association with Dr. Pearl, lacked any intention of

committing a criminal act, he was not charged as a co-con-

spirator.

Defendant was naturally concerned that the jury would

improperly use evidence of his dealings with Lev-tov as

proof of the conspiracy with which he was charged. Con-

sequently, defendant asked for the following cautionary in-

struction:

A conspiracy is an agreement between two or

more persons to engage in conduct that violates

the law. Dr. Perl is charged in this case with

being a conspirator in an illegal scheme in which

13a

various persons unknown to the grand jury were

allegedly other participants. The indictment

does not charge that Dr. Perl conspired with

Reuven Lev-tov, and you may not regard any

apparent agreement between Dr. Perl and Mr.

Lev-tov as the conspiracy charged in Count

One of the indictment. To find Dr. Perl guil-

ty of the charge in Count One of the indict-

ment you must find beyond a reasonable doubt

that Dr. Perl was a member of a conspiracy com-

posed of persons other than Reuven Lev-tov.

Despite the manifest correctness of this statement of law,’

the district court declined to give the requested instruc-

tion. Instead, it told the jury that “the First Count has

to do with conspiracy, that’s an agreement between —

charged between Reuven Lev-tov and the Defendant and

other persons unknown.”’ After defense counsel objected

to the inclusion of Lev-tov in the conspiracy instruction,

the district court attempted to cure the error as follows:

Members of the jury, it has been called to my

attention that I said Reuven Lev-tov was a co-

conspirator. He was not so charged in the in-

dictment. He was part of the agreement, but

not of the conspiracy. The conspiracy is with

people unknown at the time the indictment was

— right?

7 See, e.g., Johnson v. Sheriff, 532 P.2d 1037, 1038 (Nev. 1975);

People v. Atley, 220 N.W.2d 565, 572 (Mich. 1974); State v. Nor-

ton, 170 S.E.2d 466, 470 (N.C. 1969), cert. denied, 398 U.S. 959

(1970); Delaney v. State, 51 S.W.2d 485 (Tenn. 1932); see also ISA

C.J.S. Conspiracy § 37 at 731; Perkins on Criminal Law 622 (2d ed.

1969); Developments-Criminal Conspiracy, 72 Harv. L. Rev. 920,

926 (1959).

14a

Defense counsel again objected, arguing that the distinction

between being a party to an agreement and being a party

to a conspiracy was confusing to the jury and that a more

precise instruction was required. The district court, how-

ever, agreed with the government that it was simply a mat-

ter of “semantics” and concluded to “let it stand the way

it is.”

Because we think that the original instruction on conspi-

racy was erroneous and that defendant was entitled to a clear

and unequivocal correction of the error which he failed to

receive, we reverse his conviction on the conspiracy count.

This was not the typical conspiracy case. The principal

dealings occurred between Dr. Perl and Lev-tov, and most

of the evidence addu.ed at trial was material only to them.

The unknown persons charged as co-conspirators were at

best minor players at the fringes of the major plot. Because

the conspiracy charged in this case was not central to the

drama being played out to the jury, the jury should have

been carefully admonished to exclude from its consideration

of conspiracy all evidence of any agreement between defen-

dant and Lev-tov. Such an instruction was not given. In

the absence of such an instruction, there was on the facts

a substantial likelihood that the defendant was prejudiced;

because, despite a conscientious attempt to follow the dis-

trict court’s instructions, the jury may well have convicted

the defendant for conspiring with Lev-tov. We, therefore,

reverse his conviction on Count One of the indictment and

direct that he be awarded a new trial on this charge.

V.

We find no merit in either of defendant’s remaining as-

signments of error. Even if, as defendant asserts, the dis-

trict court erred in excluding certain expert testimony which

a7

——

ete ares

15a

the court felt came within the notice requirement of F.R.

Crim. P. 12.2(b),8 we think that defendant suffered no pre-

judice as a result of this action. Since the excluded testi-

mony bore relevance only to the entrapment defense, which,

as we have already discussed, was properly withheld from

jury consideration, any error in excluding such testimony

was necessarily harmless. F.R. Crim. P. 52(a).

Likewise, we see no prejudice to defendant in the clerk’s

entry into the jury room to inquire whether the jury would

continue its deliberations into the evening hours or instead

would adjourn to the next working day. Certainly none of

the cases cited by defendant suggest that such a minor and

benign intrusion into jury privacy warrants a reversal of a

verdict otherwise properly reached.

AFFIRMED IN PART;

REVERSED IN PART;

NEW TRIAL AWARDED.

8 Rule 12.2(b) provides that “[i]f a defendant intends to intro-

duce expert testimony relating to a mental disease, defect or other

condition bearing upon the issue of whether he had the mental state

required for the offense charged, he shall, within the time provided

for the filing of pretrial motions or at such later time as the court

may direct, notify the attorney for the government in writing of

such intent... .” Subdivision (d) authorizes the court to exclude

such testimony “[i]f there is a failure to give notice when required

by subdivision (b) ... .” Defendant concedes that no notice was

given but argues that the proffered testimony, which spoke to Dr.

Perl’s increased susceptibility to suggestion as a result of the medica-

tion he was taking, lay outside the scope of Rule 12.2(b). We

have no need to reach this question.

=

l6a

HALL, CIRCUIT JUDGE, CONCURRING IN PART AND

DISSENTING IN PART:

I concur in the statement of facts and in Parts II, II] and

V of the opinion, but must respectfully dissent from Part

IV in which the majority holds that the curative instruction

on the issue of conspiracy was so confusing as to constitute

reversible error.

The instruction, while inartful, stated that Reuven Lev-tov

was not part of the conspiracy charged, but rather that the

conspiracy was with persons unknown. On the basis of this

instruction, I fail to see how the jury could have convicted

Dr. Pearl for conspiring with Lev-tov. Therefore, I would

affirm the verdict of guilty on the charge of conspiracy.

|

ee eo a 8 ot ee

=~ a =,

—

17a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1416

United States of America,

Appellee,

versus

William R. Perl,

Appellant.

ORDER

Upon consideration of the appellant’s petition for rehear-

ing, by counsel,

IT IS ORDERED that the petition for rehearing is

DENIED.

Entered at the direction of Judge Winter for a panel con-

sisting of Judge Winter, Judge Field, and Judge Hall.

For the Court,

/s/ Williarn K. Slate, II

Clerk

18a

APPENDIX C

SUPREME COURT OF THE UNITED STATES

No. A-443

WILLIAM R. PERL,

Petitioner,

Vv.

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel

for petitioner,

IT IS ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including December 19th,

1978.

/s/ Warren E. Burger

Chief Justice of the

United States.

Dated this 13th

day of November, 1978