Petition — Carter v. United States

FILED

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MAR 15 1979

MICHAEL ROBAK, JR_CLERK

IN THE SUPREME COURT “

OF THE

UNITED STATES

October Term, 1978

No. 72 mn ] 4 ] 5

Larry GLOVER CarTER,

Petitioner

¥

Unrrep States OF AMERICA, 9 ~~

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Carv ZIEMBA

Attorney for Petitioner

2000 Cadillac Tower

Detroit, Michigan 48226

(313) 962-0525

AMERICAN PRINTING COMPANY, 125 WEALTHY STREET, S.E.,

GRAND RAPIDS, MICHIGAN 49503 — PHONE GL 8-5326

TABLE OF CONTENTS

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STATEMENT OF JURISDICTION .................

CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR GRANTING THE WRIT ..........

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APPENDIX *‘A’’—

Order of the Court of Appeals for the Sixth Circuit

affirming order denying motion to vacate..........

APPENDIS ‘*B’’—

Order of the Court of Appeals for the Sixth Circuit

denying motion for rehearing and motion for hearing

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APPENDIX ‘*‘C’’—

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AUTHORITIES CITED

Cases: Page

Adams v United States, 220 F2d 297 (CAS 1955) .... 7

Bell v United States, 349 US 81 (1955) ............. 8

Gilbert v United States, 370 US 650 (1962).......... 10

Rewis v United States, 401 US 808 (1971) .......... 8

Stromberg v California, 283 US 359 (1931) .......... 10

Todd v United States, 158 US 278 (1895) ........... 7

United States v Berrigan, 482 F2d 171 (CA3 1973)... 7

United States v Hudson & Goodwin, 7 Cranch 32 (1812) 7

United States v Hudson, 564 F2d 1377 (CA9 1977) .. 10

United States v Pierce, 498 F2d 712 (CADC 1974)... 8

United States v Redwood, 492 F2d 216 (CA3 1974)... 8

Viereck v United States, 318 US 236 (1943) ......... )

Other:

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IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 1978

No.

Larry GLOveR CARTER,

Petitioner

Vv

Unitep States OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Larry Glover Carter, by his attorney, Carl Ziemba, re-

spectfully petitions this Court to issue its Writ of Certiorari to

the United States Court of Appeals for the Sixth Circuit to

review the judgment of that Court entered in an Order dated

December 28, 1978 and Order denying rehearing and rehear-

ing en banc entered February 7, 1979 in No 78 5350.

ORDERS BELOW

The Court of Appeals did not issue an opinion. The

Order of the Court affirming the order of the District Court

denying petitioner’s motion to vacate sentence under 28

USC §2255 was entered on December 28, 1978 and is

unpublished. It is appended hereto as Appendix ‘‘A’’.

The Order of the Court of Appeals denying petitioner's

petition for rehearing and rehearing en banc was entered on

February 7, 1979. It is unpublished and is appended hereto

as Appendix *‘B’’.

STATEMENT OF JURISDICTION

The Order of the Court of Appeals affirming the

judgment of the District Court which denied petitioner’s

motion to vacate sentence was entered on December 28,

1978. Petitioner's petition for rehearing and for rehearing en

banc was timely filed and it was denied by Order dated

February 7, 1979.

The jurisdiction of this Court is invoked under 28 USC

1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

The Fifth Amendment to the Constitution of the United

States provides as follows:

‘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 cases arising in

the land or naval forces, or 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.’

Title 21 United States Code, Section 841(a)(1) provides in

pertinent part as follows:

‘

‘$841 (a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally—

(1) to manufacture, distribute, or dispense, or

posses with intent to manufacture, distribute, or

dispense, a controlled substance; .. .’

QUESTION PRESENTED

Whether under an indictment laid under 21 USC 842(a)(1)

it was error of constitutional dimensions to charge petitioner

with conspiracy to sell and distribute heroin and with

attempting to se// and distribute heroin and for the trial court

to charge the jury in terms of petitioner having been charged

with conspiracy to sell or distribute heroin and with

attempting to sell or distribute heroin where the evidence

would support a finding of an agreement to sell heroin but

where there was no evidence whatever of delivery or

attempted delivery of heroin and the statute in question

proscribed manufacture, distribution and dispensing of

heroin but not the sale of heroin.

STATEMENT OF FACTS

Petitioner was charged in a five count indictment with the

commission of the following offenses:

(1) conspiracy [with one Gregory Hall] ‘to sell and

distribute’ heroin, contrary to 21 USC 841(a)(1)

and 21 USC 846;

(2) unlawful attempt to ‘sell and distribute’ heroin,

contrary to 21 USC 846;

(3) use of a telephone for the unlawful ‘sale and

distribution’ of heroin, contrary to 21 USC 843(b);

(4) unlawful carrying of a firearm in the commission

of a felony, contrary to 18 USC 924(c)(2);

(5) being a convicted felon, receiving a firearm in

commerce, contrary to 18 USC 1202(a)(1).

The case was tried to a jury.

Testimony adduced on trial from government witnesses

tended to establish that an informer and an undercover

policewoman sought out petitioner and asked to get an eighth

of heroin from petitioner. The crucial events occured in the

house of petitioner. The policewoman had been given $3,800

of government funds; the informer was wearing a concealed

transmitting microphone. In the house, petitioner asked for

and was given the $3,800 by the policewoman and petitioner

said ‘It’s on the way’. Thereafter, some two hours passed;

petitoner, Hall, the informer and the policewoman played

many games of pool; at one point, petitioner told Hall to call

‘that bitch’ to see what was taking her so long; at another

point, petitioner said ‘if that bitch don’t be here’, they would

all go to get it. At another point, while petitioner was in a

bedroom with the policewoman, he pulled a gun and

demanded to know ‘what the real deal’ was. A commotion

ensued, the noises of which were heard by the federal agents

who had been maintaining a surveillance around the house

by means of the transmitted carried by the informer. The

agents moved into the house believing that ‘a rip’ was

occurring in the house and that ‘our people’ were in trouble.

Petitioner and Hall were arrested. There was no testimony

that a call was made to ‘that bitch’ by either petitioner of

Hall.

Neither petitioner nor Hall testified on trial.

The jury returned verdicts of guilty against petitioner on

all counts save the third—the use of a telephone for the

unlawful sale and distribution of heroin.

The petitioner was sentenced to two concurrent 10-year

sentences on the conspiracy charge and the attempt charge,

and five years for carrying a firearm in the commission of a

felony, and two years for possession of a firearm while a

convicted felon, the last two sentences to run consecutively

to the 10 year sentences.

Petitioner appealed to the United States Court of Appeals

for the Sixth Circuit where his conviction was affirmed,

United States v Carter, et al (No. 75-2215, April 28, 1976),

and the United States Supreme Court denied certiorari,

United States v Carter, et al (No. 75-1882, June 15, 1977).

Petitioner subsequently filed a motion in the District

Court to vacate sentence under 28 USC 2255. This motion

was denied, and petitioner appealed the denial to the United

States Court of Appeals for the Sixth Circuit, and the denial

was affirmed, Larry Glover Carter v United States (No.

78-5350, December 28, 1978).

Petitioner's motion for rehearing and for rehearing en

banc was denied by Order. Larry Glover Carter v United

States (No. 78-5350, February 7, 1979).

REASONS FOR GRANTING THE WRIT

IT DOES NOT COMPORT WITH DUE PROCESS

TO CONVICT A PERSON OF AN ACT WHICH

HAS NOT BEEN DECLARED A CRIME BY

CONGRESS

The statute under which petitioner was charged and

convicted and sentenced under the first two counts was 2/

USC 841(a)(1) which reads, in pertinent part, as follows:

*§841(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally—

‘(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance; .. .’

It should be noted that the verb ‘to sell’ is not used in the

foregoing statute.

Under Count One of the indictment filed in this case,

petitioner was charged with conspiracy ‘to sell and distribute

approximately 1/8 of a kilogram of heroin’.

Under Count Two of the indictment filed in this case, it

was charged that petitioner did ‘unlawfully attempt to sell

and distribute approximately 1/8 of a kilogram of heroin’.

The trial judge instructed the jury that under Count One

petitioner was charged with conspiracy ‘to sell and distribute

approximately one-eighth of a kilogram of heroin’.

The trial judge also instructed the jury as follows:

‘The Defendant Larry Carter has been charged, as I

have said, in Counts One, Two, Three and Four of

the indictment and the defendant Gregory Hall has

been charged in Counts One and Two of the

indictment, which offenses are all related to the

knowing, unlawful and intentional sale or attempt to

sell and/or distribute heroin.’

‘I charge you that if you find that the government has

failed to prove beyond a reasonable doubt that the

defendant Larry Carter or the defendant Gregory Hall

had such a specific intent to unlawfully sell or at-

tempt to sell heroin, then you cannot convict either or

both of them of any of the offenses described in the

counts of the indictment which apply to them. So

much for Count One.’

It cannot be doubted that if petitioner had been charged

in Count One simply with conspiracy to sell heroin and in

Count Two simply with an attempt to sell heroin, the two

counts would have been fatally defective for failure to charge

a crime since ‘selling’ or ‘sale’ of heroin is not proscribed by

any federal statute.

And if the trial judge had instructed the jury that they

could convict petitioner simply of conspiracy to sell heroin

and simply of attempting to sell heroin, the instructions

would have been fatally defective as empowering the jury to

convict petitioner for an act or acts not declared to be crimes

by an act of Congress.

This is so because in United States v Hudson and Good-

win, 7 Cranch 32,34 (1812), the Court said:

‘The legislative authority of the Union must first

make an act a crime, affix a punishment to it and

declare the court that shall have jurisdiction of the

offense.’

And in Todd v United States, 158 US 278, 282 (1895) the

Court said:

‘It is axiomatic that statutes creating and defining

crimes cannot be extended by intendment, and that

no act, however wrongful, can be punished under

such a statute unless clearly within its terms.’

And in United States v Berrigan, 482 F2d 171, 186 (CA3

1973), the Court said:

‘It cannot be overemphasized that conduct intended

to be prohibited by federal law must be explicitly

prohibited by statutory authority.’

Under former 2/7 USC §174, the predecessor law to that

under which petitioner was charged, one could be charged

with ‘selling’ heroin; ‘selling’ was the act which was pro-

scribed and prohibited. Adams v United States, 220 F2d 297

(CAS 1955).

See also United States v Redwood, 492 F2d 216, 218

(CA3 1974), where the Court said:

‘Appellant correctly observes that under prior law a

person could not be convicted of ‘‘selling’’ narcotics

if he were acting solely on behalf of the purchaser.

(Citation omitted.) Under the present law, however,

[21 U.S.C. §841(a)], the conduct proscribed is ‘‘dis-

tribution’’ rather than ‘‘sale’’ of a controlled sub-

stance.’

In United States v Pierce, 498 F2d 712, 713 (CADC

1974), the Court clearly recognized the distinction between

‘sale’ on the one hand, and ‘distribution’ on the other:

‘As it pointed out, the charge in this case is not that

appellant sold, but that he distributed, a controlled

substance; and the new statute expressly defines

‘‘distribution’’ as meaning ‘‘to deliver’’. . . . The dis-

tinction between ‘‘sale’’, on the one hand, and ‘‘dis-

tribution,’’ on the other, has been made even more

pointed by Congress in the definition of the latter

term contained in the successor statute, as other

circuits have recently recognized.’

Congress had at one time, in the predecessor statute,

declared the sale of heroin as a crime. The Congress could

have declared the sale of heroin a crime in2/ USC §841(a).

Congress did not do so. ‘When Congress has the will it has

no difficulty in expressing it- . . ..Bell v United States, 349

US 81, 83 (1955).

When construing the statute here in question, one should

be ‘struck by what Congress did not say’. Rewis v United

States, 401 US 808, 811-812 (1971).

Congress did not say that selling a controlled substance

was a crime: Congress said that manufacturing, distributing

and dispensing and the possession with intent to manufac-

ture, distribute and dispense a controlled substance was a

crime. Congress had formerly said that selling a controlled

substance was a crime; Congress had the opportunity again

to say that selling a controlled substance was a crime along

with manufacture, distribution and dispensing and posses-

sion for these purposes of a controlled substance; but Con-

gress did not say so.

In Viereck v United States, 318 US 236, 243 (1943) the

Court said:

‘The unambiguous words of a statute which imposes

criminal penalties are not to be altered by judicial

construction so as to punish one not otherwise within

its reach, however deserving of punishment his con-

duct may seem.’

One may manufacture or distribute or dispense a thing

without selling it; one may sell a thing without manufactur-

ing or distributing or dispensing it; one may sell a thing

which is not even in existence, such as grain in a futures

contract; one cannot manufacture or distribute or dispense a

thing unless it is in existence.

The conclusion is difficult to escape that Congress was

aware of the difficulties which law enforcement agencies and

the courts had with the concept of ‘sale’ under former 2/

USC §174 and decided in enacting 2] USC 841(a) to omit

‘sale’ completely in the new statute and proscribe the man-

ufacture and distribution and dispensing of controlled sub-

stances as the most effacacious means of ridding the social

body of the physical presence of controlled substances in

their undesired forms and uses.

Under the form of the indictment as laid and under the

form of the jury charge as given, the jury might have found

petitioner had conspired to sell heroin but not to distribute it;

and the jury might have found that petitioner had attempted

to sell heroin but not to distribute it. Hence, the jury might

have convicted petitioner of a non-existence crime. Since the

10

verdicts on Count One and Count Two were general ver-

dicts, it is not known whether the jury found that petitioner

had conspired to sell heroin or to distribute it; and whether

the jury found that petitioner had attempted to sell heroin or

to distribute it. On one basis the verdicts would be valid; on

the other basis, invalid. Hence, the two verdicts cannot

stand. Stromberg v California, 283 US 359 (1931); United

States v Hudson, 564 F2d 1377 (CA9 1977); Gilbert v United

States, 370 US 650 (1962).

Hence, petitioner might have been convicted of a crime

not known to the laws of the United States in violation of

basic tenets of due process of law.

CONCLUSION

It is respectfully submitted that for the reasons given, the

Order of the Court of Appeals for the Sixth Circuit affirming

the Order of the United States District Court denying

peitioner’s motion to vacate sentence is in conflict with

decisions of this Court and with the requirements of the Fifth

Amendment to the United States Constitution such that

plenary review should be granted in this Court and

petitioner's request for a Writ of Certiorari should be

granted.

Respectfully submitted,

Cart ZiEMBA

Attorney for Petitioner

2000 Cadillac Tower

Detroit, Michigan 48226

(313) 962-0525

Detroit, Michigan

{Date of printing]

APPENDIX

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No. 78-5350

APPENDIX ‘‘A’”’

ORDER

No. 78-5350

UNITED STATES

COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Larry GLover CARTER,

Petitioner-Appellant

V.

Unirep States or AMERICA,

Respondent-Appellee

Before: EDWARDS, ENGEL and MERRITT, Circuit

Judges.

Defendant, pursuant to 28 U.S.C. § 2255, appeals the

District Court’s denial of his motion to vacate sentences

imposed for convictions on several charges which resulted

from an uncompleted drug transaction with an undercover

narcotics agent. He was sentenced to two concurrent 10-year

sentences for conspiring to distribute heroin (21 U.S.C. §

846) and attempting to distribute heroin (21 U.S.C. § 846),

five years for carrying a firearm in the commission of a

felony (18 U.S.C. § 924(c)(2)), and two years for possessing a

firearm while a convicted felon (18 U.S.C. § 1202(a)). These

last two sentences were to run consecutively to the 10-year

sentence and to each other. This Court affirmed, United

States v. Carter, et al (No. 75-2215, April 28, 1976) and the

Supreme Court denied certiorari. United States v. Carter, et

al (No. 75-1882, June 15, 1977).

2a

No. 78-5350

On this appeal from the District Court's denial of his

§2255 motion, defendant first asserts that he was improperly

indicted and convicted for conspiring and attempting to sell

as well as distribute heroin when the statute under which he

was charged and convicted, 21 U.S.C. § 846, proscribes only

conspiracy or attempt to distribute heroin. Defendant argues

that the ‘‘sale,”’ as such, of heroin is not statutorily pros-

cribed and also argues that an individual can ‘‘sell’’ heroin

without necessarily ‘‘distributing’’ it. We believe that under

the statute ‘‘sale’’ is a sub-species of ‘‘distribution.’’ The

legislative history of the Comprehensive Drug Abuse Preven-

tion & Control Act of 1970, 21 U.S.C. §§ 801, et seg.

indicates that the statute is ‘‘extremely broad in scope, no

longer restricted to the narrower concepts of buy and sell,

but all inclusive in covering the entire field of narcotics and

dangerous drugs in all phases of their manufacturing, proces-

sing, and distribution and use.’’ United States v. Pruitt, 487

F.2d 1241, 1245 (8th Cir. 1973).

Defendant also claims he was deprived of his right to a

fair trial by certain jury instructions. Allegations of instruc-

tional error are not appropriate in a § 2255 motion, Osborn v.

United States, 415 F.2d 1021 (6th Cir. 1969) and, further-

more, the errors alleged do not assert fundamental errors of

law that inherently result in a complete miscarriage of jus-

tice, Davis v. United States, 417 U.S. 333 (1974).

Finally, defendant's insistence that trial counsel rendered

ineffective assistance must be rejected under the standard set

forth in Beasley v. United States, 491 F.2d 687 (6th Cir.

1974).

Accordingly, it is ORDERED that the judgment of the

District Court be, and hereby is, AFFIRMED.

ENTERED BY ORDER OF THE COURT

(s) John D. Helman

Clerk

3a

No. 78-5350

APPENDIX ‘‘B”’’

ORDER

No. 78-5350

UNITED STATES

COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Larry GLover Carter,

Petitioner-Appellant

Vv.

Unirep STATES OF AMERICA,

Respondent-Appellee

Before: EDWARDS, ENGEL and MERRITT, Circuit

Judges.

No judge of the Court having moved for rehearing en

banc, the petition for rehearing has been referred to the

hearing panel for disposition.

Upon consideration, it is ORDERED that the petition for

rehearing be and hereby is denied.

ENTERED BY ORDER OF THE COURT

(s) John D. Helman

Clerk

ORDER

4a

Indictment

APPENDIX ‘‘C”’’

INDICTMENT

UNITED STATES

DISTRICT COURT

EASTERN DISTRICT

OF MICHIGAN

SOUTHERN DIVISION

Unrrep STaTEs OF AMERICA,

Plaintiff,

VS.

Larry GLOvER Carter,

Grecory HA Lt,

Defendants.

CRIMINAL NO. 4-81704

VIO: Sections 846 & 843(b),

Title 21, U-S.C.:

Section 924(c)(2),

Title 18, U.S.C.;

Section 1202(a)(1),

Title 18 Appendix, U.S.C.

INDICTMENT

THE GRAND JURY CHARGES:

COUNT ONE

That commencing on or about April 9, 1974, and continu-

ing until on or about April 11, 1974, in the Eastern District of

Michigan, Southern Division, LARRY GLOVER CARTER

and GREGORY HALL, defendants herein, did knowingly

Sa

Indictment

and unlawfully combine, conspire, and agree together to

commit an offense against the United States of America, that

is, to sell and distribute approximately 1/8 of a kilogram of

heroin, a Schedule I Narcotic Drug Controlled Substance,

contrary to the provisions of Section 841(a)(1), Title 21,

United States Code; in violation of Section 846, Title 21,

United States Code.

OVERT ACTS

The following overt acts were committed in furthering

the conspiracy herein alleged:

1.) On April 9, 1974, GREGORY HALL, negotiated with

an undercover police officer and a confidential informant of

the Drug Enforcement Administration for the sale of 1/8 of a

kilogram of heroin.

2.) On April 11, 1974, LARRY GLOVER CARTER,

accepted $3,700.00 as payment for 1/8 of a kilogram of heroin

which was to be delivered shortly all thereafter to an under-

cover police officer and a confidential informant of the Drug

Enforcement Administration.

COUNT TWO

That on or about April 11, 1974, in the Eastern District of

Michigan, Southern Division, LARRY GLOVER CARTER

and GREGORY HALL, defendants herein did knowingly,

wilfully, and unlawfully attempt to sell and distribute approx-

imately 1/8 of a kilogram of heroin, a Schedule I Narcotic

Drug Controlled Substance; in violation of Section 846, Title

21, United States Code.

COUNT THREE

That on or about April 10, 1974, in the Eastern District of

Michigan, Southern Division, LARRY GLOVER CARTER,

defendant herein, did knowingly and intentionally use a

communication facility to wit, a telephone, for the purpose

6a

Indictment

of facilitating an unlawful sale and distribution of heroin

contrary to the provisions of Section 841(a)(1), Title 21,

United States Code, and for the purpose of furthering a

conspiracy to sell and distribute heroin, contrary to the

provisions of Section 846, Title 21, United States Code; in

violation of Section 843(b), Title 21, United States Code.

COUNT FOUR

That on or about April 11, 1974, in the Eastern District of

Michigan, Squthern Division, LARRY GLOVER CARTER,

defendant herein, did knowingly, wilfully, and unlawfully

carry a firearm, that is, a Ruger, .44 caliber revolver, Serial

No. 8140, during the commission of a felony, that is, the

offenses of conspiracy to sell and distribute heroin and the

attempted sale and distribution of heroin set forth in Counts I

and II of this Indictment, which are felonies which may be

prosecuted in a Court of the United States of America; in

violation of Section 924(c)(2), Title 18, United States Code.

COUNT FIVE

That on or about April 11, 1974, at Detroit, in the Eastern

District of Michigan, Southern Division, LARRY GLOVER

CARTER, defendant herein, having been convicted on the

28th day of November, 1972, by the Recorder’s Court for the

City of Detroit, State of Michigan, of the offense of attempt

to carry a pistol in a motor vehicle, a felony, did knowingly

receive, possess, and transport in commerce and affecting

commerce, a firearm, that is, a Ruger .44 caliber revolver,

Serial No. 8140; in violation of Section 1202(a)(1).