Petition — Dameron v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

1979 Term

’ No.

& v * >» ‘

JAMES DAMERON . . . : . Petitioner

versus 4

UNITED STATES OF AMERICA - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

C. B. CREECH

GORDON J. DILL, JR.

CREECH, HOGG & DILL

P. O. Box 431

1107 Second National Bank Bldg.

Ashland, Kentucky 41101

Attorneys for Petitioner

WESTERFIELD-BONTE CO., 619 W. KENTUCKY=P.O. BOX 3251, LOUISVILLE, KY.

INDEX

PAGE

REFERENCE TO REPORT OF OPINION OF THE

re 1

STATEMENT OF GROUNDS UPON WHICH

JURISDICTION OF THIS COURT IS INVOKED.

bo

QUESTIONS PRESENTED FOR REVIEW........

bo

STATUTES AND CONSTITUTIONAL PROVI-

UE POE TED con... 2- 6

STATEMENT OF THE CASE.................... 7-13

I hs ie yaa unasceewedaves 7

ere 7-13

REASONS FOR GRANTING THE WRIT.......... 14-21

(A) This Court Should Grant the Writ Prayed for

Herein in Order to Rule On the Question of

Whether a Warrantless Search By a Law En-

forcement Officer Who Gains Entry to a Home

By Fraud, Deceit or Trickery Violates the

Fourth Amendment Such That the Fruits

Thereof Should Be Suppressed............... 14-18

(B) The Proof At Trial Even When Taken in a

Light Most Favorable to the Government Fails

to Constitute an Attempt as Described By 21

ie na gk in ves ona 18-21

EEE Ee re 21

tne las pias sok ob w od 8 6 wee ss 23-24

Order of the Court of Appeals................... 23

Order Denying Petition for Rehearing........... 24

AUTHORITIES CITED

Cases:

PAGE

Coolidge v. United States, 403 U. S. 454 (1971).... 15

Fraternal Order of Eagles v. United States, 57 F. 2d

ee ee ee is ng a aes Vek We as eee 16, 17

Gatewood v. United States, 209 F. 2d 789 (C.A. D.C.,

RG i cde bane cuorhsaeae seca ees 15, 17

Gould v. United States, 255 U. S. 298 (1921)....... 15, 16

Hoffa v. United States, 385 U. S. 293 (1966). ..15, 16-17

Lewis v. United States, 385 U. S. 206 (1966). ..15, 16, 17

United States v. Langley, 466 F. 2d 27 (6th Cir.

Be tenn GAG Se ce oink. Cae ee ence a eR 14

United States v. Mandujano, 499 F. 2d 370 (Sth Cir.

Se ee eee Eee eee eee ae 19, 20

United States v. Phillips, 497 F. 2d 1131 (9th Cir.

ER ete tt rr eee ates ry PE ay Ns Cr 15,17

United States v. Ressler, 536 F. 2d 208 (7th Cir.

SE Wile} nis kin vas Pees 15

United States v. Roman, 356 F. Supp. 434 (S.D.

ee cg SEE Sucka hk SUAS wea ee snd wean 19

Statutes:

i cc poc cs kelp caw eeek toe, 79

NO oS se Shak 5 asic hoo a oe Rees 2,6, 7,18

eee ED ok % ek en Fe ees tee eR ia ake 2

IN THE

SUPREME COURT OF THE UMTED STATES

1979 Term

No.

JAMES DAMERON . “ ‘ - . Petitioner

. Vv.

UNITED STATES OF AMERICA Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, James Dameron prays that a Writ of

Certiorari issue to review the judgment herein of the

United States Court of Appeals for the Sixth Circuit

entered in the above styled action on July 5, 1979, and

upon which Petition for Rehearing was denied on

September 11, 1979.

REFERENCE TO REPORT OF OPINION OF THE

COURT OF APPEALS

The opinion of the Court of Appeals was by per

eurium opinion which was not reported officially or

unofficially. The judgment of the United States Dis-

trict Court was not reported.

~

STATEMENT OF GROUNDS UPON WHICH JURIS-

DICTION OF THIS COURT IS INVOKED

This is a petition seeking review of the Order and

Judgment of the United States Court of Appeals for

the Sixth Circuit entered on July 5, 1979, affirming the

conviction of James Dameron in the United States

District Court for the Eastern District of Kentucky.

Petition for Rehearing was requested, and was denied

by Order entered September 11, 1979. Jurisdiction to

review this action on Writ of Certiorari is granted by

28 U.S.C. §1254 (1).

QUESTIONS PRESENTED FOR REVIEW

A. Should the fruits of a search pursuant to a

search warrant be suppressed where the affidavit in

support of said warrant is based upon information ob-

tained by law officers through entry into defendant’s

home by fraud, deceit and trickery ?

B. Are the acts outlined in the evidence, even if

taken in a light most favorable to the government, suf-

ficient to constitute criminal attempt within the mean-

ing of 21 U.S.C. §846?

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

The statutory provisions pursuant to which peti-

tioner was convicted are Title 21, Sections 841 and

846, United States Code, which read as follows:

Section 841: ‘Prohibited acts A—Unlawful acts

(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally—

2

»

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

possess with intent to manufacture, dis-

tribute, or dispense a controlled sub-

stance; or

(2) to ereate, distribute, or dispense, or

possess with intent to distribute or dis-

pense, a counterfeit substance.

Penalties

(b) Except as otherwise provided in section 845

of this title, any person who violates subsec-

tion (a) of this section shall be sentenced as

follows:

(1)(A) In the case of a controlled substance

in schedule I of II which is a narcotie drug, such

person shall be sentenced to a term of imprison-

ment of not more than 15 years, a fine of not more

than $25,000, or both. If any person commits such

a violation after one or more prior convictions of

him for an offense punishable under this para-

graph, or for a felony under any other provision of

this subchapter or subchapter II of this chapter or

other law of the United States relating to narcotic

drugs, marihuana, or depressant or stimulant sub-

stances, have become final, such person shall be

sentenced to a term of imprisonment of not more

than 30 years, a fine of not more than $50,000, or

both. Any sentence imposing a term of imprison-

ment under this paragraph shall, in the absence of

such a prior conviction, impose a special parole

term of at least 3 years in addition to such term of

imprisonment and shall, if there was such a prior

conviction, impose a special parole term of at least

6 years in addition to such term of imprisonment.

+

(B) In the case of a controlled substance in

schedule I or II which is not a nareotie drug or in

the case of any controlled substance in schedule

III, such person shall be sentenced to a term of

imprisonment of not more than 5 years, a fine of

not more than $15,000, or both. If any person

commits such a violation after one or more prior

convictions of him for an offense punishable under

this paragraph, or for a felony under any other

provision of this subchapter or subchapter II of

this chapter or other law of the United States

relating to narcotic drugs, marihuana, or depres-

sant or stimulant substances, have become final,

such person shall be sentenced to a term of im-

prisonment of not more than 10 years, a fine of not

more than $30,000, or both. Any sentenee impos-

ing a term of imprisonment under this paragraph

shall, in the absence of such a prior conviction,

impose a special parole term of at least 2 years in

addition to such term of imprisonment and shall,

if there was such a prior conviction, impose a

special parole term of at least 4 vears in addition

to such term of imprisonment.

(2) In the ease of a controlled substance in

schedule IV, such person shall be sentenced to a

term of imprisonment of not more than 3 years, a

fine of not more than $10,000, or both. If any

person commits such a violation after one or more

prior convictions of him for an offense punishable

under this paragraph, or for a felony under any

other provision of. this subchapter or subchapter

II of this chapter or other law of the United States

relating to narcotic drugs, marihuana, or depres-

sant or stimulant substances, have beeome final,

such persoa shall be sentenced to a term of im-

—

9)

prisonment of not more than 6 years, a fine of not

more than $20,000, or both. Any sentence impos-

ing a term of imprisonment under this paragraph

shall, in the absence of such a prior conviction, im-

pose a special parole term of at least one year in

addition to such term of imprisonment and shall,

if there was such a prior conviction, impose a

svecial parole term of at least 2 years in addition

to such term of imprisonment.

(3) In the ease of a controlled substance in

schedule V, such person shall be sentenced to a

term of imprisonment of not more than one year,

a fine of not more than $5,000, or both. If any

person commits such a violation after one or more

convictions of him for an offense punishable under

this paragraph, or for a crime under any other

provision of this subchapter or subchapter IT of

this chapter or other law of the United States

relating to narcotic drugs, marihuana, or depres-

sant or stimulant substances, have become final,

such person shall be sentenced to a term of im-

prisonment of not more than 2 years, a fine of not

more than $10,000, or both.

(4) Notwithstanding paragraph (1) (B) of

this subsection, any person who violates subsection

(a) of this section by distributing a small amount

of marihuana for no remuneration shall be treated

as provided in subsections (a) and (b) of section

844 of this title.

Special parole term

(ec) A special parole term imposed under this sec-

tion or section 845 of this title may be revoked

if its terms and conditions are violated. In

such circumstances the original term of im-

G

prisonment shall be increased by the period

of the special parole term and the resulting

new term of imprisonment shall not be dimin-

ished by the time which was spent of special

parole. A person whose special parole term

has been revoked may be required to serve all

or part of the remainder of the new term of

imprisonment. <A special parole term pro-

vided for in this section or section 845 of this

title shall be in addition to, and not in lieu of,

any other parole provided for by law.”’

Section 846: ‘‘ Attempt and conspiracy

Any person who attempts or conspires to com-

mit any offense defined in this subchapter is

punishable by imprisonment or fine or both which

may not exceed the maximum punishment pre-

scribed for the offense, the commission of which

was the object of the attempt or conspiracy.”’

Petitioner relies for relief upon the protection af-

forded him pursuant to the Fourth Amendment to the

United States Constitution, which reads:

‘The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shail not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.”’

~

STATEMENT OF THE CASE

(A) Proceedings

This action originated upon an indictment returned

by a Federal Grand Jury in the Eastern District of

Kentucky charging the Petitioner with having violated

Title 21, United States Code, Section 841 and 846 in

that he attempted to manufacture Pheneyclidine, a

schedule II non-narcotic controlled substance. Peti-

tioner was tried by jury in the United States District

Court for the Eastern District of Kentucky at Pike-

ville, Kentucky. He was convicted and sentenced to

five years imprisonment followed by a special parole

term of two years.

Petitioner appealed to the United States Court of

Appeals for the Sixth Circuit which affirmed the Judg-

ment of the Trial Court. It is from that action which

Petitioner now seeks relief.

(B) Statement of Facts

In January 1978, a sign maker named W. B. Young

in Ashland, Kentucky, at petitioner’s request made

several plastic signs which purported to be for the

Corbin Company (T.E., pp. 117-124). On March 6,

1978, the petitioner also secured a cashier’s check from

the First National Bank in Ironton, Ohio, in the

amount of Two Thousand Three Hundred Forty-six

($2,346.00) Dollars payable to a chemical firm in

Cincinnati, Ohio (T.E., pp. 246, 256). In January of

1978, the petitioner secured the services of an answer-

ing service in Ironton, Ohio to take calls for a firm

8

which he termed the Corbin Company; the petitioner

also used the address of the answering service for his

company, which was not an unusual practice with the

answering service (T.E., pp. 168-188). While in

Florida in February, 1978, petitioner purchased a

quantity of letterheads, envelopes and business cards

for the Corbin Company (T.E., pp. 189-192).

In the early part of March, 1978, the petitioner

ordered from a Louisville, Kentucky chemical firm,

under the name of the Corbin Company, approximately

one hundred twenty-five (125) bottles of piperidine

(T.E., pp. 210-211). This purchase order was to be

picked up by the petitioner at a later date at the

Matheson, Coleman and Bell chemical firm in Cincin-

nati, Ohio. When the petitioner ordered the above

mentioned chemicals from the firm in Louisville, an

agent of that firm notified agents of the Federal Drug

Enforcement Agency (T.E., pp. 220-224).

The salesman at the chemical firm in Louisville

indicated that the chemical, Piperidine, has various

industrial uses (T.E., p. 223).

Several chemists testifying for the United States

and a chemist testifying for the petitioner indicated

that piperidine has many legitimate uses in addition to

being one of at least ten chemicals which go to con-

stitute the controlled substance phencyclidine or PCP

(T.E., pp. 425-457).

According to a forensic chemist employed by the

Drug Enforcement Administration, it is impossible to

manufacture phencyclidine with only the chemical!

piperidine (T.E., p. 439).

Y

All other chemists and/or experts testifying for

either party agreed that it is impossible to construct

phencyclidine with only piperidine, although all agreed

that piperidine is one of from three to ten essential

elements of that drug.

On April 4, 1978, agents of the Drug Enforcement

Administration were serveilling the Matheson, Cole-

man and Bell Chemical Company in Cincinnati, Ohio,

anticipating that the petitioner would be picking up

the above mentioned order of piperidine (T.E., p. 275).

At approximately 11:30 a.m. on April 4, 1978, the peti-

tioner came to the parking lot of the Ohio Chemical

Company in a green Chevrolet truck with a ‘*Corbin

Company”’ sign attached to the doors of the truck he

was operating (T.E., p. 276). The petitioner picked

up the quantity of piperidine and drove away from the

chemical firm’s loading area and immediately removed

the license tag from his truck and replaced that license

plate with another one; he also removed the Corbin

“ompany signs from the doors of his truck (T.E.,

pp. 276-279). The Drug Enforcement Administration

agents attempted to follow the petitioner and did fol-

low him for a long period of time prior to losing him

in the traffic (T.E., p. 281).

In following the petitioner’s truck on April 4, 1978,

the drug agents were able to ascertain the exact name

and address of the petitioner through the registration

of his truck based upon a check of the license plate

(T.E., pp. 280-281).

During the evening of either April 3 or 4, 1978,

Flatwoods, Kentucky, Policeman, Willard Eugene

10

Fisher, talked to officers of the Drug Enforcement

Agency, specifically Larry L. Lakin and Harold Brown,

and was advised that the latter named federal agents

did not know whether the substance piperidine was in

the James Dameron residence (T.E., pp. 3-4).

Officer Fisher was asked to go through the Dameron

residence by Patrolman, Bill Kenneth Jesse, also a

member of the Flatwoods, Kentucky Police Depart-

ment (T.E., p. 5).

On April 3 or 4, 1978, Officer Bill Kenneth Jesse

met with Agents Lakin and Brown at the police station

in Flatwoods, Kentucky (App., p. 71). At that time,

Lakin and Brown described in small detail ‘‘exactly

what was supposed to be happening”’ (T.E., p. 15).

After the initial conversation with Officer Jesse on

either April 5 or 4, 1978, probably on April 4, Lakin

and Brown asked Officer Jesse if he would go to the

home of James Dameron and Officer Jesse indicated

that he would do so (T.E., pp. 16-17).

The Drug Enforcement Officers specifically asked

Officer Jesse to see if there were any cartons in Mr.

Dameron’s house (T.E., pp. 18-19). Officer Jesse in-

dicated that one of the reasons he went to Dameron’s

house was to see whether the boxes or cartons the

D. E. A. Agents suspected of being present in the pe-

titioner’s house were in fact there (T.E., pp. 19-20).

Ostensibly, Officers Jesse and Fisher went to and

entered the Dameron residence with a realtor to view

the premises for the expressed purpose of purchasing

it. However, once inside the Dameron house, the two

policemen thoroughly and without a search warrant,

eee eee ee

11

went through the house room by room, including the

closets, until they found some boxes in a closet (T.E.,

p. 20). The reason given for opening closet doors and

moing clothes and boxes about was to get a better view

into the closets, as stated by Officer Jesse, was to look

for ‘‘bugs’’ (T.E., p. 21). Jesse, in response to the

Trial Judge’s questioning said he would have gone into

the Dameron residence regardless of whether or not he

had ever seen a D.E.A. Officer (T.E., p. 20). However,

in brief before the Court of Appeals and in oral argu-

ment, the United States Attorney abandoned this posi-

tion; and frankly admitted the entire purpose of the

visit to be the search.

Based upon the data provided by Officers Jesse and

Fisher, Agent Larry Lakin prepared an affidavit and

obtained a search warrant on April 13, 1978, and pur-

suant to the search warrant, a search was made of the

Dameron residence on April 13, 1978 (T.E., pp. 323-

325).

As a result of the search of Mr. Dameron’s truck

and residence, agents of the D. E. A. secured two mag-

netic signs of the Corbin Company, a clipboard, a spiral

notebook, plastic hard hat, a copy of a check made

payable to the Preiser Chemical firm, business cards

and letterhead of the Corbin Company, and a pur-

chaser’s receipt for a cashier’s check from the First

National Bank of Ironton, Ohio, payable to the Preiser

Scientific firm in the amount of Two Thousand, Three

Hundred Forty-six Dollars and Twenty-four cents

($2346.24) (T.E., p. 337).

12

Agent Lakin also found in Dameron’s residence a

piece of notebook with some handwritten notes refer-

ring to a British patent as well as another handwritten

note referring to the telephone number 329-5044 and

the name benzene and the name Tom Buyalos (T.E.,

p. 345). Agent Lakin also found a handwritten note

referring to airline schedules in Mr. Dameron’s living

room (T.E., p. 346). In Mr. Dameron’s bedroom, the

federal agents found a briefcase containing other hand-

written notes which Agent Lakin indicated were ‘‘pos-

sibly some receipts and some personal papers’’ (T.E.,

p. 347). Agent Lakin also found a Budget Rent-A-

Car receipt from Miami, Florida, which was dated

February 18, 1978, as well as an invoice from a printing

firm in Florida; this last item Agent Lakin says he

took from Mr. Dameron’s personal bedroom (T.E., pp.

347-349 ).

Further, Agent Lakin said he seized some hand-

written notes with a formula and mathematical caleu-

lations on it (T.E., p. 349). One of the elements men-

tioned in the handwritten notes is cyclohexanone, which

Agent Lakin says is a chemical used in the manufacture

of PCP; no other chemical other than piperidine was

ever found in Mr. Dameron’s possession (T.E., p. 350).

The federal agents found absolutely no drug equip-

ment, utensils, or any other object in Mr. Dameron’s

possession which could be used to manufacture phen-

eyclidine.

Agent Lakin testified that there was nothing illegal

about the possession of any of the items in the peti-

tioner’s residence (T.E., pp. 394-395). Specifically,

13

Agent Lakin testified that he had no knowledge of any-

thing improper occurring within James Dameron’s res-

idence after April 4, 1978 (T.S., p. 396).

None of the bottles of piperidine seized from the

petitioner’s residence had been opened (T.E., p. 398).

No other chemical other than piperidine was present

at the petitioner’s residence or in his possession (T.E.,

pp. 398-399). Lakin only found references to other

chemicals in a book or on a piece of paper (T.E., p.

399).

Agent Lakin found nothing extraordinary in the

tools or equipment in the Dameron residence; Agent

Lakin admitted that the tools found were the ordinary

tools one would find around an ordinary man’s home

(T.E., p. 401).

art of the literature Lakin found in the Dameron

residence was the U.S. News and World Report which

dealt with the drug PCP. With only the chemical

piperidine nothing else can be made (T.E., p. 403).

The Trial Court erroneously overruled the Peti-

tioner’s Motion for Judgment of Acquittal (T.E., pp.

607-641).

Prior to trial of this action, petitioner moved the

District Court to suppress the fruits of the search made

pursuant to warrant on the grounds that the informa-

tion which formed the basis for the affidavit was itself

the product of illegal search by Officers Jesse and

Fisher of the Flatwoods City Police.

14

REASONS FOR GRANTING THE WRIT

A. This Court Should Grant the Writ Prayed for Herein

in Order to Rule On the Question of Whether a War-

rantless Search By a Law Enforcement Officer Who

Gains Entry to a Home By Fraud, Deceit or Trickery,

Violates the Fourth Amendment Such That the Fruits

Thereof Should Be Suppressed.

As cited above, agents of the United States con-

ducted a search of petitioner’s home pursuant to a

search warrant issued by the United States Magistrate.

The basis of the search warrant was the affidavit of a

government ageut. The information contained in that

affidavit consisted primarily of the observations of two

city police officers who entered petitioner’s home under

guise of being interested in purchasing the house. It is

the clearly settled rule that where a search is conducted

pursuant to a warrant, which warrant was procured

by an affidavit based upon the fruits of a prior illegal

search, the fruits of the search pursuant to warrant

must be suppressed upon timely motion. United States

v. Langley, 466 F. 2d 27 (C.A. 6th Cir., 1972). In that

case, the court stated that the fruits of the search must

be suppressed ‘twhere such tainted information com-

prises more than a very minor portion of that found in

an affidavit supporting a warrant to search.’’

Therefore, the question presented to the trial court

and the Court of Appeals was whether or not the war-

rantless search by two police officers fell within one of

the exceptions to the warrant requirement of the

Fourth Amendment. As with every warrantless search,

the heavy burden rests with the government to establish

1)

that the search fell within one of the few specifically

established and well-delineated exceptions to the war-

rant requirement. See Coolidge v. New Hampshire,

403 U.S. 454, 91S. Ct. 2022, 29 L. Ed. 564 (1971).

The Court of Appeals in this case has apparently

misapplied the Supreme Court’s holdings in Lewis vy.

United States, 385 U.S. 206 (1966), and Hoffa v.

United States, 385 U.S. 293, and has reached a con-

clusion contradictory to the rule in several other cireuits

as announced in Fraternal Order of Eagles v. United

States, 57 F. 2d 93 (3rd Cir., 1932), United States v.

Phillips, 497 F. 2d 1131 (9th Cir., 1974), and Gatewood

v. United States, 209 F. 2d 789 (C.A.D.C., 1953). Fur-

ther the holding of the Court of Appeals is contrary to

the principle announced by the Supreme Court in

Gould v. United States, 255 U.S. 298 (1921).

The United States in brief cited Hoffa, and Lewis

to the Court as standing for the general proposition

that a law enforcement officer’s gaining of entry into

a dwelling under ruse or false pretense is not objection-

able and permits the officer to circumvent the warrant

requirements of the Fourth Amendment. In fact, the

court’s holding in those cases is clearly more limited.

In United States v. Ressler, 536 F. 2d 208 (7th Cir.,

1976), the court drew that distinction by pointing out

that in both Lewis and Hoffa the government agent was

an undercover agent invited onto the premises for the

express purpose of observing and participating in the

illegal activities. The rationale of the Hoffa and Lewis

cases is that the defendant was not deceived as to the

purpose of the agent’s entry, but rather by his mis-

16

placed belief that the agent would not report his obser-

vations to law enforcement agencies.

When properly distinguished in this manner,

neither Hoffu or Lewis serve to abrogate the rule an-

nounced by the Supreme Court in Gould v. United

States, 255 U.S. 298 (1921) wherein the court stated:

“The prohibition of the Fourth Amendment is

against all unreasonable searches and seizures and

if for a Government officer to obtain entrance to a

man’s house or office by force or by an illegal

threat or show of force, amounting to coercion,

and then to search for and seize his private papers

would be an unreasonable and therefore a pro-

hibited search and seizure, as it certainly would be,

it is impossible to successfully contend that a like

search and seizure would be a reasonable one if

only admission were obtained by stealth instead of

by force or coercion. The security and privacy of

the home or office and of the papers of the owner

would be as much invaded and the seareh and

seizure would be as much against his will in the

one case as in the other, and it must therefore be

regarded as equally in violation of his constitu-

tional rights.

Without discussing them, we cannot doubt that

such decisions as there are in conflict with this

conclusion are unsound, and that, whether en-

trance to the home or office of a person suspected

of crime be obtained by a representative of any

branch or subdivision of the Government of the

United States by stealth, or through social ac-

quaintance, or in the guise of a business eali, and

whether the owner be present or not,when he

eters, any search and seizure subsequently and

17

secretly made in his absence, falls within the scope

of the prohibition of the Fourth Amendment, and

therefore the answer to the first question must be

in the affirmative.”’

In Fraternal Order of Eagles, supra, the Court held

that where law enforcement agents gained entry into a

private club by falsely representing themselves to be

members of an affiliated organization in another city

and upon eutry observed illegal sale of liquor, the

agents actions constitute an unlawful search.

In Gatewood, supra, the court held that a search

pursuant to an entry gained when officers announced

themselves to be from Western Union, constituted an

unlawful search.

The Ninth Cireuit undertook to distinguish Lewis

in United States v. Phillips, supra, wherein uniformed

police officers gained entry into defendants office by

announcing that they were investigating a burglary.

Again the court noted that the operative language of

Lewis as stated both in the majority opinion and the

eoneurring opinion of Justice Brennan is that the agent

entered ‘‘for the very purpose contemplated by the

oeeupant,’’ p. 211. Since in United States v. Phillips

the officers did not enter for the purpose contemplated

by the occupant, to investigate a burglary, their entry

and resulting search were unlawful.

The limited scope of the use of deception authorized

by Hoffa and Lewis permits law enforcement agencies

to make full use of undercover agents in the enforce-

ment of the law without giving them unbridled au-

thority to invade privacy and security. This court

r

*

Ls

should review this action in order to prevent this mis-

applieation of its prior decisions in order to justify

search by fraud and deceit generally.

It is interesting to note in this case that in its brief,

the government argues that prior to having directed

city Police Officers to enter petitioner’s home on a

false preteuse to conduct a search, the D.E.A. already

had sufficient evidence with which to procure a warrant.

If this is correct, it is frightening to imagine that the

Court of Appeals appears to be holding that the gov-

ernment may enter the home of a private individual on

a ruse even where there is no reason why it could not

have applied to the court for a warrant as contemplated

by the Constitution.

B. The Proof At Trial Even When Taken in a Light Most

Favorable to the Government Fails to Constitute an

Attempt as Described By 21 U.S.C. §846.

The question of distinguishing attempt from mere

preparation is a difficult one not subject to precise

simple definition. This court has never articulated a

definition for attempt since the enactment of 21 U.S.C.

§846. No directive by Congress that the Courts must

apply a less stringent meaning of the concept of at-

tempt is found in the statute. There is no suggestion

that an evil thought can be punished. If so, it should

be spelled out.

It has been argued by petitioner that no court erred

in not directing a verdict of acquittal in this case, since

the only evidence offered by the United States was in

effect, that James Dameron had purchased one of the

19

chemicals used in the manufacture of P.C.P., that he

had in his possession some printed material, all of

which was available to the public, including magazines

and copies of public records, and that he had employed

an assumed name at various times.

In United States vy. Mandujano, 499 F. 2d 370 (5th

Cir., 1974), the Fifth Circuit catalogued some of the

rarious opinions and attempts at defining the line be-

tween preparation and attempt. The Fifth Circuit

adopted a definition of attempt which employs the term

substantial step as a prerequisite for an attempt. That

substantial step must be one strongly corroborative of

the firmness of the defendant’s criminal intent. . It is

this definition which the United States in its brief

urged the court to adopt.

Petitioner submits that a definition such as given in

Mandujano is so vague and broad as to say very little.

Prosecutions for attempt under such a definition be-

comes a dangerous thing in effeet allowing prosecution

of a defendant for his state of mind rather than for

any act.

In the ease of United States v. Roman, 356 F. Supp.

434 (S.D.N.Y., 1973), the court in discussing attempt

employed language from the Model Penal Code which

petitioner urges this court to adopt as an appropriate

definition of attempt, specifically that a person is guilty

of attempt to commit a crime if, acting with the kind of

culpability otherwise required for commission of the

crime, he engages in conduct which would constitute

the crime if the attendant circumstances were as he

believes them to be.

aU

In this case, the danger of prosecuting a person for

What his mental state is believed to be is clearly demon-

strated. The United States made much of the fact that

Petitioner possessed reading material such as govern-

ment patents which are public records, and commercial

publications such as weekly news magazines. It is

submitted that petitioner had absolute right to have

and to read these materials. To infer a sinister motive

from the possession of publications is itself a sinister

thing. Moreover, there is not and the government does

not contend that there is any prohibition whatsoever

against the purchase of piperidine. In fact, there are

several uses for the substance.

The sum of the government’s case is that Mr. Dam-

eron bought a chemical which can be purchased by any

individual and that he acted in a strange manner from

what is usually the conduct in the community. Unusual

behavior is simply not a crime.

Argument has been made by the United States that

a definition of attempt such as that urged by the peti-

tioner would result in making enforcement of drug

laws more difficult. However, the government has at

its disposal the means to make the possession of piperi-

dine a crime itself, thus achieving the desired preventa-

tive result without allowing the government to explore

the possible evil intent of private citizens who have

committed no substantive wrong.

The definition of attempt given in Mandujano in

effect states that the mental state itself is the crime and

there need be only sufficient overt acts to draw a strong

inference as to the state of mind. Petitioner strongly

21

urges that this court reject the substantial step doctrine

and adopt a position consistent with urged by peti-

tivuer,

Regardless of what one may believe Dameron would

have done eventually, he did not attempt to make

P.C.P., and in fact took very few steps consistent with

the making of P.C.P.

CONCLUSION

For the reasons set forth above,a Writ of Certiorari

should be granted to review the judgment of the United

States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

C. B. CREECH

GorDON J. DILL, JR.

CREECH, Hoaa & DILL

P. O,. Box 431

1107 Second National Bank Bldg.

Ashland, Kentucky 41101

Attorneys for Petitioner

APPENDIX

BB nme >t

I

Ce

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 78-5411; 78-5452

Unirep States or America, - - Plaintiff-Appellee,

Vv.

James C. DamMeERON A/K/A JAMES CorBIN, - Defendant-

Appellant,

ORDER—Entered July 5, 1979

Berore: Livery and Keirn, Circuit Judges, Brown, Dis-

trict Judge*

After a jury trial, Appellant was convicted on a one-

count indictment charging him with attempting to manu-

facture, distribute and dispense, and possess with intent to

manufacture, distribute and _ dispense, Phencylidine

(“PCP”) a Schedule II non-narcotic, controlled substance

in that he knowingly and unlawfully possessed Piperidine,

an essential precursor to the manufacture of PCP, in viola-

tion of 21 U.S.C. $846.

Upon due consideration of the record on appeal, the

briefs and oral arguments of counsel for the parties and

being fully advised in the premises, the Court is of the view

that appellant’s allegations of error are without merit.

Therefore, it is ordered that Appellant’s conviction be,

and the same hereby is, affirmed.

Entered by Order of the Court

/s/ John P. Hehman

Clerk

*Honorable Bailey Brown, Chief Judge, United States District

Court for the Western District of Tennessee, sitting by designation.

24

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 78-5411; 78-5452

Unitep States or America, - - Plaintiff-Appellee,

v.

JaMES C. Dameron a/K/a JAMES Corsin, - Defendant-

Appellant,

ORDER—Entered September 11, 1979

Berore: Livery and Keiru, Circuit Judges, and Browy,

District Judge*

Upon consideration of the petition for rehearing filed

herein by appellant, the court concludes that the issues

raised therein were fully considered upon the original sub-

mission and decision of this ease.

It is therefore Orperep that the petition for rehearing

be, and the same hereby is, denied.

Entered by Order of the Court

s/ John P. Hehman

Clerk

*The Honorable Bailey Brown, Chief Judge, United States

District Court for the Western District of Tennessee, sitting by

designation.