# Petition — Carter v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2621%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 908

## Text

FILED

| oa |

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 ..........
REE ES
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

ee eee

la
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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2621%3A1. Public record. Not legal advice.