Petition — WILLIE E. PATTERSON v. UNITED STATES (Nos. 81-81, 80-2163, 81-58, 81-80)

fw Te at ; Gitice Supreme Court, US

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In The JUL 13 198!

2 L. STEVAS:

Supreme Court of the United States

+

October Term, 1980

WILLIE EARL PATTERSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

KENNETH CARROAD

Attorney for Petitioner

PETER J. MALONEY

Of Counsel

40 Worth Street

New York, New York 10013

(212) 962-3835

LUTZ APPELLATE PRINTERS, INC.

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5230

QUESTIONS PRESENTED

1. Whether a one court indictment of conspiracy to violate 21

U.S.C. §841 may be expanded by the circuit court’s reading in a

charge of aiding and abetting.

2. Whether it is permissible to hold petitioner liable for

conspiracy to violate 21 U.S.C. §841, by aiding and abetting the

distribution of heroin without a showing of a particular sale of

heroin.

3. Whether the petitioner can be convicted for an agreement

to distribute uncontrolled substances to various heroin operations.

4. Whether a police officer may make an auto stop solely for

the purpose of requiring the operator to produce identification

without a showing of exigent circumstances.

5. Petitioner joins in all other arguments made by co-

petitioners for granting certiorari.

li

‘STATEMENT PURSUANT TO RULE 21 (1b) LISTING

NAMES OF PARTIES BELOW

The parties to the proceeding in the court below were:

Leroy Perry, Leroy Butler, Charles Cameron, Donald Dewees,

Arthur Gibbons, and Willie Earl Patterson, appellants; United

States of America, appellee.

iii

TABLE OF CONTENTS

Csstions PeseS. oc icscsccaceatevessvcecéévecestaves i

Statement Pursuant to Rule 21(1b) Listing Names of Parties

BOIOW socccccvevcccccccccccceecccevccseveccvenece ii

Table of Contents ..ccccccccccccccccees PYTTTTT ETT T LT iii

Table OF CUATIONS csccccccccvecccvccccccccvoevvccceces iv

GoUed BOW scacirccesecvissbvertcsesetevesecesuaees 2

FAEMGIUON ccccccccccccenccccccccccesenecseesseseeees 2

Statutory and Constitutional Provisions Involved ......... 3

Statement Of the Case .cccccccccccccccccccvcccccccceces 3

Reasons for Granting the Writ:

I. The majority holding below is based on a novel

theory of the conspiracy statute, 21 U.S.C. §846, and

conflicts with prior decisions of this Court and other

circuit courts regarding this as well as other issues.. 4

Il. The decision below failed to reach the question

whether a police officer may make an auto stop

solely for the purpose of requiring the operator to

produce identification without a showing of exigent

GHOMIIAMENG. no vec acnedesevecdcivcesescceecas 9

COE | 5 cedh win idee seen Case ee cede eckodbaciesckean 10

iv

TABLE OF CITATIONS

Page

Cases Cited:

Arkansas v. Sanders, 442 U.S. 753 (1980) ......seeeeeees 10

Bruton v. United States, 391 U.S. 123 (1968) ........50.. 9

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ 9

Delaware v. Prouse, 440 U.S. 648 (1979) .....cceeeeeeees 10

Kotteakos v. United States, 328 U.S. 750 (1946) ......... 8

Nye & Nissen v. United States, 336 U.S. 613 (1946) ...... 5

Pereira v. United States, 347 U.S. 1 (1954) .......0ec eee 5

Russell v. United States, 369 U.S. 749 (1962) .........55- 7

Shuttlesworth v. Birmingham, 373 U.S. 262 (1913) ....... 6

United States v. Cades, 495 F. 2d 1166 (3rd Cir. 1974) ... 7

United States v. Campbell, 426 F. 2d 547 (2nd Cir. 1970) . 7

United States v. Krol, 374 F. 2d 776 (7th Cir. 1967) ..... 4,5

United States v. Raffin, 613 F. 2d 408 (2nd Cir. 1979) ... 6

United States v. Tornabene, 222 F. 2d 865 (3rd Cir. 1955). 7

United States v. Townes, 512 F. 2d 1057 (6th Cir. 1975) . 5

United States v. Valencia, 492 F. 2d 1071 (9th Cir. 1974) . 6

Vv

Contents

Page

United States v. Williams, 341 U.S. 58 (1951) .......005. 6

Statutes Cited:

PS VB. OE is acide cncccceceeseds dssévecsucens 4; 34% 67

BE US.C. EGE cccccccccccccvvcccevccesevscccecs i, 2, 3, 4, 6

Sh UB. Be oo bes is over cveciccesessesveesenes 2, 3, 4, 6

ZB U.S.C. GIZSET) vccccccncccccvcscccccesvccrscccceses 2

United States Constitution Cited:

PO PEE, hob o-esc kee veeukeueucecounee veeetene y

No.

Supreme Court of the United States

+

October Term, 1980

WILLIE EARL PATTERSON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

To: The Honorable Chief Justice of the United States and the

Associate Justices of the Supreme Court of the United States:

The petitioner Willie Earl Patterson prays that a writ of

certiorari issue to review the judgment of the United States Court

of Appeals for the Second Circuit entered against him in the above-

entitled case on February 2, 1981, and a petition for rehearing en

banc denied May 13, 1981 (dissent as to petitioner Dewees).

OPINION BELOW

The opinion of the Second Circuit Court of Appeals is

attached to the petition of petitioner-appellant Donald Dewees as

Exhibit A. Petitioner Patterson relies on such opinion and makes

references in this petition to the pages contained therein. The

petitioner was convicted after trial for violating 18 U.S.C. §2; 21

U.S.C. §846 (conspiracy to violate the narcotics laws).

Petitioner Patterson along with other defendants and possibly

petitioners Leroy Perry, Arthur Gibbons, Charles Cameron,

Donald Dewees and Leroy Butler, were tried and convicted in the

Eastern District of New York (Mishler, J.) and sentenced to

various terms of imprisonment of from probation to fifteen years.

The petitioner had been released on bail pending his appeal to the

Second Circuit Court of Appeals. A motion for a stay of the

mandate and for bail pending certiorari to the Supreme Court of

the United States was submitted on May 19, 1981, and was denied

June 1, 1981. Petitioner Patterson surrendered as directed on June

18, 1981, and is presently confined in the federal detention facility

in New York City.

The court below split 2-1 in its reasons for affirmance. The

majority held petitioner and the other appellants were properly

convicted under 21 U.S.C. §846 for conspiring to violate 21

U.S.C. §841 by aiding and abetting the distribution of heroin.

JURISDICTION

The judgment of the Court of Appeals was entered on May 13,

1981, and the jurisdiction of this Court is invoked under Rule 19 of

the Supreme Court Rules and 28 U.S.C. §1254(1) on the ground

that the review by the Supreme Court by writ of certiorari is sought

of a judgment of affirmance on appeal by the United States Court

of Appeals for the Second Circuit.

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED

The statutory provisions involved are: 18 U.S.C. §2; 21

U.S.C. §841; 21 U.S.C. §846.

The constitutional provision involved is United States

Constitution, Fourth Amendment.

STATEMENT OF THE CASE

The above petitioner, with several others, was arrested in 1979

and charged with conspiracy to violate 21 U.S.C. §841. A chief

government witness, Gerald Gewirtz, testified as to four deliveries

of mannite or quinine to Patterson between June 17, 1976 and

November 11, 1976.

Several police officers testified as to Patterson having the

boxes of mannite in his car after the first delivery and requiring

Patterson to stop his car and identify himself.

A police sergeant testified that he saw Patterson at a garage at

the time Gewirtz made one of the other deliveries.

There was no showing of the disposition of any of the

materials delivered by Gewirtz to Patterson.

There was other testimony that other conspirators (Dewees

and Pollack) were seen at or in the vicinity of Patterson's store at

125th Street and Sth Avenue. Dewees owned a bicycle store a short

distance away from Patterson’s variety store.

Patterson’s car was observed by a police officer parked near

Butler’s house in New Jersey. .

4

Patterson testified that he knew Butler socially and had been

at Butler’s garage in Harlem.

Frank Lucas, another chief Government witness, testified that

he did not know Patterson.

REASONS FOR GRANTING THE WRIT

I.

The majority holding below is based on a novel theory of

the conspiracy statute, 21 U.S.C. §846, and conflicts with prior

decisions of this Court and other circuit courts regarding this as

well as other issues.

This Court should grant a writ of certiorari to review the

novel opinion of the majority below which held that the

petitioner and others were properly convicted under 21 U.S.C.

§846 for conspiring to violate 21 U.S.C. §841 by aiding and

abetting the distribution of heroin (Appendix, 2a).

Petitioner contends that conspiracy (21 U.S.C. §846) and

aiding and abetting (18 U.S.C. § 2) are separate and distinct

crimes, each requiring a reference to a substantive crime in order

for a conviction under either section to stand.

Here, the majority has added a new element to the

conspiracy as charged, holding that petitioner and others could

conspire to “aid and abet” a crime by the knowing supply of a

raw material necessary for the commission of that crime. Judge

Oakes appropriately commented that “this was not the charge

under the indictment or the instruction of the court.”

Such holding is in conflict with United States v. Krol, 374

F. 2d 776 (7th Cir. 1967) where the Court held “aiding and

5

abetting the commission of a substantive offense is a crime

different from a conspiracy to commit the same substantive

offense.”

In Krol, the indictment charged two counts, the first, that

the defendant aided and abetted a substantive crime, and the

second, that the defendant conspired to commit the same

substantive crime. Kro/ held that the defendant's conviction

under the aiding and abetting count was not inconsistent with a

not guilty finding under the conspiracy count.

In United States v. Townes, 512 F. 2d 1057 (6th Cir. 1975),

cert. denied, 423 U.S. 846, the Court held “Conspiracy to

commit a crime with another and aiding and abetting in its

substantive commission are distinct crimes.”

In Nye & Nissen v. United States, 336 U.S. 613 (1946), the

defendants were charged with one count of conspiracy and six

substantive counts. The Court discussed the application of

conspiracy as opposed to aiding and abetting another to commit

a crime, and held:

“Aiding and abetting has a broader application.

It makes a defendant a principal when he

consciously shares in any criminal act whether or

not there is a conspiracy.... Aiding and

abetting rests on a broader base; it states a rule of

criminal responsibility for acts which one assists

another in performing.”

Again, in Pereira v. United States, 347 U.S. 1 (1954), the

defendants were charged with conspiracy as well as two

substantive counts., Aiding and abetting was held applicable to

the substantive counts and distinguished from the conspiracy

count. In both Nye & Nissen and Periera, the Supreme Court

6

had an opportunity to extend the “aiding and abetting” statute

to conspiracy as well as substantive offenses. The Court chose

not to do so and distinguished the application of “aiding and

abetting” from conspiracy.

The majority below stated that there appears to be no

reported cases involving a conspiracy to aid and abet violations

of the drug laws (Appendix 10a). The petitioner contends that

charges of conspiracy to commit a substantive crime and “aiding

and abetting” a substantive crime are separate and distinct, each

imposing an individual liability upon the offender. United States

v. Valencia, 492 F. 2d 1071 (9th Cir. 1974).

The majority points out that it is not appropriate to impose

conspiratorial liability on one who merely aids and abets a

conspiracy. Apparently to avoid the consequences of such

premise, they hold, 18 U.S.C. §2 is applicable to 21 U.S.C. §841

and not 21 U.S.C. §846.

18 U.S.C. §2 provides: “Whoever commits an offense

against the United States or aids, abets, counsel, commands,

induces or procures its commission, is punishable as a

principal.” Aiding and abetting as used in the statute, means to

assist the perpetrator of a crime. United States v. Williams, 341

U.S. 58 (1951).

By definition a person can only be guilty of aiding and

abetting the commission of an act which is a crime. The Second

Circuit has held: “It is hornbook law that a defendant charged

with aiding and abetting the commission of a crime by another

cannot be convicted in the absence of proof that the crime was

actually committed”. United States v. Raffin, 613 F. 2d 408 (2nd

Cir, 1979), see also, Shuttlesworth v. Birmingham, 373 U.S. 262

(1963).

7

In order to convict a defendant of aiding and abetting the

commission of a crime, it is first essential that the Government

demonstrate that the substantive crime has been committed.

United States v. Cades, 495 F. 2d 1166 (3rd Cir. 1974).

Yet, the majority below held, “It is unnecessary to show

that the conspiracy actually aided any particular sale of heroin

since a conspiracy can be found though its object has not been

achieved (Appendix 13a).

In addition, the majority's application of the aiding and

abetting statute improperly treads upon other precedents which

are also issues (the deficiency of the indictment, prejudicial spill-

over of multiple conspiracies, and severance) which should be

considered on this petition.

The indictment did not charge, nor did the jury instructions

spell out in so many words, that petitioners could be found

guilty of “conspiring to aid and abet” the distribution of heroin,

Nor were those words mentioned by the prosecutor, The

majority held the precise language is unimportant provided all

the elements necessary to find a conspiracy to aid and abet were

fairly put to the jury (Appendix Ila). Yet, the court below has

held an indictment under 18 U.S.C. §2 must be accompanied by

an indictment for a substantive offense. United States v.

Campbell, 426 F. 2d 547 (2nd Cir. 1970).

The indictment, as construed by the majority, holding the

appellant liable under 18 U.S.C. §2, failed to meet the

elementary principle of criminal pleading, stating all the

elements necessary to constitute the offense intended to be

punished. Russell v. United States, 369 U.S. 749 (1962); United

States v. Tornabene, 222 F. 2d 865 (3rd Cir. 1955).

The majority's position was the conspiracy here involved a

single distribution network for legal uncontrolled substances

which were used as cutting agents for heroin. They held that the

participants can be prosecuted for one conspiracy by virtue of

their common source, their knowledge of one another's position

in the network, and their intent that the uncontrolled substances

would be used as cutting agents, despite the fact that the

conspirators were simultaneously involved in different

independent networks which distributed the illegal element,

heroin (Appendix 2a).

This position contravenes this Court’s holding in Kotteakos

v. United States, 328 U.S. 750, 774 (1946) “that the dangers of

transference of guilt from one to another across the line

separating conspiracies are so great that no one really can say

prejudice to substantial right has not taken place.”

Judge Oakes disagreed with the majority's theory of

conspiracy involving a common source of diluents and various

narcotics networks. Significantly, Judge Oakes found at least

two heroin operations and stated the question to be, whether the

petitioner and others can be convicted for an agreement to

distribute uncontrolled substances to various heroin operations

(Appendix 14a).

While the court below held that the petitioner and others

were not prejudiced by the admission against the other

petitioners of highly damaging evidence including inculpatory

statements and stipulations as well as the testimony on similar

acts (Appendix 23a), the majority held, “That the appellants’

object and intent was to aid the distribution of heroin through

the distribution of diluents is evidenced by... the various

stipulations (Cameron) or inculpatory statements (Dewees,

Gibbons, Perry) relating to their knowledge and intent.”

(Appendix 13a).

And so, on the one hand the majority used the stipulations

9

and inculpatory statements to show the singularity of the diluent

conspiracy, while at the same time, the court below contends

that there was no prejudicial spi!lover. This is contrary to the

holding of this Court in Bruton v. United States, 391 U.S. 123

(1968).

The decision below failed to reach the question whether a

police officer may make an auto stop solely for the purpose of

requiring the operator to produce identification without a

showing of exigent circumstances.

Petitioner Patterson contends that the auto stop and seizure

and requirement by the uniformed police officers for Patterson

to produce his license and registration was an unnecessary

intrusion upon his Fourth Amendment rights.

Detective Casella testified that he and another officer, in

civilian clothes and in an unmarked car, followed Patterson's

Cadillac for approximately thirty blocks without difficulty. By a

coincidence, a marked police car happened to pull alongside of

his vehicle while Detective Casella was stopped in traffic.

Detective Casella took this opportunity to ask the uniformed

officers to require the operator of the Cadillac to produce his

identification. Thereafter, Detective Casella had no trouble in

following the Cadillac to its destination, several blocks away,

and then later to Patterson’s place of business, another ten

blocks or so further.

Casella’s only manifested intent was to check Patterson's

identification. Absent exigent circumstances, no amount of

probable cause can justify a warrantless search or seizure.

Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971). Stopping

an automobile and detaining its occupants, even if the stop is

10

brief and limited in purpose, is a seizure. Delaware v. Prouse,

440 U.S. 648 (1979),

In Arkansas v. Sanders, 442 U.S. 753 (1980), the court

reviewed some of the principles applicable to the search of

automobiles. The court found that while there are some

exceptions to the warrant requirement, the burden is on those

seeking the exception to show the need for it. Here, the

Government failed to show any emergency or exigent

circumstances to justify the warrantless seizure.

In Patterson’s case there was no showing of any exigent

circumstances. As Casella testified, the passing of the patrol car

was a coincidence. A seizure should not depend upon such a

coincidence.

Therefore, this Court should grant certiorari to review the

judgment below.

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment of the Second Circuit.

Respectfully submitted,

KENNETH CARROAD

Attorney for Petitioner

PETER J. MALONEY

Of Counsel