Record and brief — STEVEN JOB v. UNITED STATES (Nos. 81-944, 81-846)
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IN THE ALEXANDER L. STEVAS.
SUPREME COURT OF THE UNITED stares ct"
October Term, 1981
STEVEN JOB,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
VICTOR SHERMAN of
NASATIR, SHERMAN & HIRSCH
9911 West Pico Boulevard
Suite 1000
Los Angeles, California 90035
Telephone - (213) 277-3112
Counsel for Petitioner.
Dean-Standefer, 1340 West Sixth Street, Corona, California 91720 - (714) 734-0811
QUESTIONS PRESENTED
1. Whether the petitioner was denied due process
in that he was improperly induced by the outrageous and
unconscionable behavior of government agents who origi-
nated, conceptualized and engineered the entire plan.
2. Whether the conduct of the government agents was
particularly outrageous and reprehensible in that there never
was any contraband or controlled substance in existence
providing an objective basis for the commission of a crime.
ii
PARTIES TO THE PROCEEDING
JACK WILBUR TAVELMAN and STEVEN JOB (peti-
tioner herein) were indicted on August 9, 1979, in the District
of Nevada, and a three-day trial in the United States District
Court for the District of Nevada, commencing January 16, 1980,
resulted in convictions of both defendants. Defendants appealed,
and on July 13, 1981, the appeals were affirmed in part and
vacated in part by the United States Court of Appeals for the
Ninth Circuit. Petitioner’s co-defendant, JACK WILBUR
TAVELMAN, has also filed a Petition for Writ of Certiorari in
this same matter (C.A. No. 80-1128).
SHELLY SILVERMAN was initially indicted and charged
with the same two counts as JOB and TAVELMAN. In plea
negotiations with the government, however, the charges against
SILVERMAN were dropped to a misdemeanor, in exchange for
his testimony against the remaining co-defendants.
PL .ccttnecdeedcueasveuseceudes
Constitutional Provision At Issue ..............
SSS POPC T TTT TCT TT TCT
Reasons For Granting A Writ ...........+50005-
PE. d¢pcesbapeuseeedetceccsscocesese
I ‘Petitioner was denied due process in that he
was improperly induced by the outrageous
and unconscionable behavior of government
agents who originated, conceptualized and
engineered the entire plan.............-+-+.
II The conduct of the government agents was
particularly outrageous and reprehensible
in that there never was any contraband or
controlled substance in existence providing
an objective basis for the commission of a
Co Ye YS NY WN
DE 25.44 d vaduke Teles ce seas cae
Index to Appendixes
22
28
iv
TABLE OF AUTHORITIES CITED
Cases Page
Bifulco v. United States, 447 U.S. 381,
100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980) .. 4
Carbajal-Portillo v. United States, 396 F.2d 944
CM 26 Ge ne eé one bparounee 21
Hampton v. United States, 426 U.S. 484(1976) .. 14, 16
Rochin v. People of California, 342 U.S. 165
eh ous o's os bee cauwawedehe 10, 13
Sherman v. United States, 356 U.S. 369 (1958) ..
NEARS he NS WORT Spe a 11, 12, 13, 14, 15, 18, 19
Sorrells v. United States, 287 U.S. 435(1932) ..
Sa enl o eh oa eee hae bees 11, 12, 13, 14, 15, 18, 19
United States v. Berrigan, 482 F.2d 171
PT os oo, sabes ob hock deneue’s 23, 24, 26
United States v. Binetti, 552 F.2d 1141
ee esc cbetben'ee ioe 28
United States v. Borum, 584 F.2d 424
NE Ee 2, 17, 18, 20, 21, 28
United States v. Brooklier, 459 F. Supp. 479
PR Lis vce ehemesbebued oe 23, 26
United States v. Brooks, 567 F.2d 134
Ne ee Nn ods 6 bubib w ee 18
United States v. Bueno, 447 F.2d 903
EE as wd U datey Sees Utes 16, 20
United States v. Corcione, 592 F.2d 111
SS MPI K ec) se ob.c's veebeaypecess 18
United States v. Deangelis, 430 F. Supp. 327
EE Vaiss sc oc se socencuntiswes 23, 26
TABLE OF AUTHORITIES CITED
Cases (cont'd) Page
United States v. Esquer-Gomez, 550 F.2d 1231
Pn POR bas Caddies stenubne see 18
United States v. Gonzales, 539 F.2d 1238
ME cls Saye dod pend eel 19, 20
United States v. Gonzales-Benitez, 537 F.2d
PCLT icctbeccatesceddner 18, 19
United States v. Graves, 556 F.2d 1319
GG DEVED ds pccetesosiccscccpeses 16, 20
United States v. Hair, 356 F. Supp. 39
SS Un DEE 690669604666 cee doedwe 23, 26, 27
United States v. Heng Awkak Roman,
356 F. Supp. 434 (S.D. N.Y. 1973),
aff'd 484 F.2d 1271 (2d Cir. 1973) ........ 24, 26
United States v. Hough, 561 F.2d 594
CN une 26
United States v. Korn, 557 F.2d 1089
ae 26
United States v. Leja, 573 F.2d 244
aed at «ec 18
United States v. Marin, 513 F.2d 974
I eh 24
United States v. Mosley, 496 F.2d 1012
RTE (ii 4 cNebaxess vys0coe cys 20
United States v. Oquendo, 490 F.2d 161
ER ESS ee 20
United States v. Oviedo, 525 F.2d 881
GRU BPE Khe cescawesccececces 23, 24, 25, 26
vi
TABLE OF AUTHORITIES CITED
Cases (cont'd) Page
United States v. Perez, 600 F.2d 782
DEEL, » cE dccctccessocicssces 18
United States v. Quijada, 488 F.2d 1253
SE MEE Obs powecsccecncceseeee 26
United States v. Reifsteck, 535 F.2d 1035
DEE OEE Gude cececectecveveseve 18
United States v. Reynoso-Ulloa, 548 F.2d 1329
(9th Cir. 1977), cert. denied 436 U.S.
PETE Stes desosesuqececosvdesces 15, 16
United States v. Russell, 411 U.S. 423 (1973). .12, 13, 14, 15
United States v. Spiney, 508 F.2d 146
(10th Cir. 1975), cert. denied
GE Ep edsecevcccceseccccceses 17
United States v. Szycher, 585 F.2d 443
EE “2b bees 6eebes Ceeeese ces 17, 18
United States v. Twigg, 588 F.2d 373
(Sd Cie. 19TE) nc cccccceen. 2, 16, 17, 19, 20, 21, 28
United States v. Waldron, 590 F.2d 33
EE 0 a60 0 ceseee es cetoceces 27
United States v. Webster, 606 F.2d 581
SRT. tedccecesecocccesccese 15
United States v. West, 511 F.2d 1083
ITED 0 bee's ccvccoevcosececvees 16, 20
United States v. Williams, 613 F.2d 560
SE EEE hb cee veccccccceseceset 18
vii
TABLE OF AUTHORITIES CITED
United States Constitution
CNET ‘Secnddnccccceeoccedcdiaoes
REI Fo vc tvecccccscccccccicccesece
United States Code
Title 18
DEP hv eee asecccvcccenetecces
Title 28
2, 10, 19
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1981
STEVEN JOB,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Petitioner, STEVEN JOB, respectfully prays that a writ
of certiorari issue to review the judgment and opinion of the
United States Court of Appeals for the Ninth Circuit, filed
July 13, 1981, case number 80-1129. In this case, the Ninth
Circuit issued an opinion in conflict with the United States
Courts of Appeals for the Third and D.C. Circuits in United
States v. Twigg, 588 F.2d 373, 378-80 (3d Cir. 1978), and
United States v. Borum, 584 F.2d 424, 427-30 (D.C. Cir.
1978), with respect to substantial and serious issues of
outrageous and unconscionable behavior on the part of
government agents in violation of the Fifth Amendment
right to due process, under circumstances where no objective
basis existed for the commission of a crime. It is therefore
respectfully submitted that the Petition for Writ of Certiorari
should be granted so that a resolution of these conflicting
approaches may be obtained.
OPINIUNS BELOW
The Judgment and Commitment Order of the United
States District Court for the District of Nevada was filed
and entered on February 25, 1980, and a copy of said order
appears in the appendix hereto as Appendix “A.” The opinion
of the Court of Appeals for the Ninth Circuit was filed July 13,
1981, and a copy of said opinion appears in the appendix here-
to as Appendix “B.”” On September 25, 1981, a timely Petition
for Rehearing was denied and a suggestion for rehearing en banc was
rejected, and a copy of the Order denying rehearing and rejecting
rehearing en banc appears in the appendix hereto as Appendix “C.”
JURISDICTION
The Judgment and Commitment Order of the United States
District Court filed and entered February 25, 1980 (Appendix
“A”), sets forth petitioner’s conviction of conspiracy to possess
with intent to distribute a controlled substance in violation of
21 U.S.C. § 846 (Count I), and interstate travel in aid of
racketeering enterprise in violation of 18 U.S.C. § 1952(a)(3)
(Count II). The Court of Appeals for the Ninth Circuit, by
opinion filed July 13, 1981 (Appendix “B”’), affirmed peti-
tioner’s conviction, and by order dated September 25, 1981
(Appendix “C’’) denied petitioner’s Petition for Rehearing
and rejected petitioner’s suggestion for rehearing en banc.
The jurisdiction of this Court is invoked pursuant to Title
28 U.S.C. § 1234(1) and Rule 20 of the Rules of the Supreme
Court. The petition is timely, being filed within sixty days
of September 25, 1981, the date on which petitioner’s Peti-
tion for Rehearing in this matter was denied.
CONSTITUTIONAL PROVISION AT ISSUE
Amendment V:
No person shall be . . . deprived of life,
liberty, or property, without due process of law.
STATEMENT OF THE CASE
On August 9, 1979, Indictment No. CR-R-79-39-HEC
was filed in the United States District Court for the District
of Nevada, charging petitioner, STEVEN JOB, and his co-
defendant, with one count of conspiracy to possess with
intent to distribute a controlled substance, in violation of
21 U.S.C. § 846, and one count of interstate travel in aid of
racketeering enterprise, in violation of 18 U.S.C. § 1952(a)(3).
Various pretrial motions were filed on behalf of petitioner
and co-defendant TAVELMAN. On November 19 and 20,
1979, hearings were held on petitioner’s motion to suppress
evidence. The court ordered suppressed certain items illegally
seized in violation of the Fourth Amendment.
Trial of the matter commenced on January 16, 1980,
before the Honorable Edward C. Reed. Petitioner was found
guilty of both charges and was sentenced, on February 25,
1980, to serve eight years in custody on Count I, plus a
special parole term of three years, and on Count II to serve
four years consecutively with Count I.
A timely appeal was taken to the United States Court
of Appeals for the Ninth Circuit, which court, on July 13,
1981, entered its judgment affirming the conviction on each
count. Based upon the recent United States Supreme Court
decision in Bifulco v. United States, 447 U.S. 381, 100 S. Ct.
2247, 65 L. Ed. 2d 205 (1980), petitioner’s special parole
term was vacated.
The facts produced before the District Court indicated
that on July 20, 1979 petitioner was arrested in the hallway
of the MGM Grand Hotel in Reno, Nevada. Petitioner had
come to Reno, Nevada, on that occasion at the request of a
government agent, Bruce Baron, who offered to sell him a
large quantity of cocaine. Baron, in fact, had no cocaine for
sale.
The entire incident was initiated when Mr. Baron contact-
ed Dennis Cameron of the Federal Drug Enforcement Admin-
istration in Reno, Nevada, while Baron was incarcerated in
the Douglas County Jail. Mr. Cameron went to the jail to
interview Baron, who explained that he was an alcoholic and
was in jail because of a fight with a police officer. Baron also
described his past involvement in the distribution of narcotics,
primarily cocaine.
Although Baron resided in Reno, he offered to go to
Los Angeles, California, and supply information to the govern-
ment regarding cocaine trafficking there. Baron supplied
Cameron with a list of names of persons who were allegedly
involved in narcotics distribution.
Several weeks later, while Baron was out on bail, he went
to Cameron’s office and again offered his assistance. Cameron
informed him that the list did not appear to be useful to the
Reno office, but that he would arrange for Baron to meet D.E.A.
agents in Los Angeles, who might pursue the investigation from
there. The Los Angeles office, however, was uninterested in
Baron’s assistance.
Baron returned to Nevada during the first week of July,
1979, and entered an alcohol rehabilitation program (which
he never completed) in lieu of felony or misdemeanor charges.
He contacted Agent Cameron and told him that he had met
several persons in Los Angeles who appeared to be looking
for a source of supply for cocaine. Baron placed four telephone
calls to Los Angeles from the D.E.A. office in Reno, and it was
determined that Baron should return to Los Angeles and meet
with these people.
Baron returned to Los Angeles on approximately July 11,
1979, taking with him a photograph taken in the D.E.A. office
showing him holding several large bags filled with white powder,
giving the appearance of large amounts of cocaine available for
sale. In fact, the substance in the photograph was procaine and
not cocaine. The D.E.A. agent emphasized that the agency was
about to embark on what he called a “unique situation,” “a
novel approach” to the problem, as the agency was deviating
from its usual method of undercover work which involved the
purchase rather than the sale of cocaine.
Baron repeatedly contacted Agent Cameron from Los
Angeles and informed him that he had met an individual
named Shelly Silverman, who he hoped could introduce
him to other persons involved in trafficking.
Silverman made a number of calls to petitioner at his
home in North Hollywood, and attempted to entice peti-
tioner over a period of approximately four days with dis-
cussions about the possibility of flying to Reno and purchas-
ing some very good cocaine from a large dealer (Baron).
Silverman, in his testimony, described petitioner’s
initial response as “real leery.”” However, Silverman pointed
out many details about the quality of the cocaine for sale,
including discussion about its burning and melting qualities
and inexpensive price. Petitioner, however, conveyed to
Silverman a lack of interest in purchasing. Silverman describ-
ed the negotiations as follows:
“ . . . it seemed that at one point it was
on, at one point it was off, at one point he was
interested, but then because of technical difficul-
ties of getting it together and not wanting to fly
up to Reno, Bruce [Baron] offered to pay all his
expenses, and if he wasn’t happy, he could fly
back and nothing gained, nothing lost and that
brought hisinterest .... ”
Silverman further indicated that he was atte:apting to
be a “high pressure salesman . . . to try to get him to go
for it,” because Silverman was to get a commission of $100
an ounce, which he needed desperately. Baron and Silverman
spent about three days together and also discussed cocaine
sales with a person named Tony Tonkowicz, or “Tea Bags.”
The court allowed Silverman, over objection, to describe
in detail a prior transaction he, petitioner and ““Tea Bags” had
engaged in approximately one month earlier. Silverman testi-
fied that prior to that time he had never been involved in situa-
tions involving large amounts of cocaine. This prior incident
was the only one introduced into testimony.
Silverman was initially indicted and charged with the same
two counts as JOB and TAVELMAN. In plea negotiations with
the government, however, the charges against Silverman were
dropped to a misdemeanor, in exchange for his testimony against °
the remaining co-defendants. Baron received approximately
$3,000 from the D.E.A. for his endeavors.
Silverman testified that on the third day which Baron and
he spent together, they went to Woodland Hills. Silverman
decided to call petitioner “one last time,” in his desperation
to make money. He characterized their dealings up to then in
the following terms:
“ . . . there didn’t seem to be much interest.
Up to then the last phone call I had with him he was
going to shy it off; in other words, I’m not sure, or
I’m not going to do it.”
Finally JOB told Silverman and Baron to come over to
his house. After an introductory period of socializing, during
which time Baron indulged in some cocaine, he and JOB dis-
cussed the quality and price of the cocaine Baron allegedly had
for sale. No conditions or business arrangements were agreed
upon. However, they did exchange telephone numbers for
possible use in the future. Silverman said that Baron was
supposed to call JOB again the next day.
Baron returned to Reno after three or four days in Los
Angeles. He informed Cameron that he had brought JOB’s
telephone number with him. Baron claimed that JOB was
not interested in purchasing cocaine.
Thereafter, however, six telephone calls were made by
Baron from the D.E.A. office in Reno to JOB in Los Angeles.
One call was made on July 17, 1979, and five from morning
until evening on July 19, 1979. These conversations were
initiated by the D.E.A.; JOB made no calls to Baron. In addi-
tion, many more calls than six were made to JOB at the instiga-
tion of the D.E.A. Specifically, numerous calls were made by
Silverman at Baron’s urging. JOB testified at the preliminary
hearing that he received from 20 to 25 calls from Baron. Many
of these conversations did not involve discussion of drugs, but
of entertainment and women in Reno should JOB come there.
At the end of their last taped conversation, Baron stated
that he expected an apology for “all of this hassle” JOB had
caused him. Evidence regarding the negotiations and telephone
conversations between Baron and petitioner revealed that JOB
was reluctant throughout the entire incident to come to Reno.
Baron had to continually offer to lower the price to make the
deal interesting.
Further, Baron’s conversations with JOB emphasized the
notion that women would be available in Reno should JOB
come there, and that Baron’s wife, known to be quite beauti-
ful, would also be in Reno. In addition, the goverament made
arrangements to pay for a hotel room for petitioner at the MGM
Grand Hotel and promised to reimburse him if the product was
unsatisfactory, as further inducements to come to Reno. JOB
finally agreed to come the ne» t day. JOB mentioned that a
friend named Jack, who was an accountant (allegedly TAVEL-
MAN) would come with him to Reno. However, even after this
final conversation, Baron was still uncertain whether he and
JOB had an agreement or not, for he called JOB’s house on
July 20 and, when there was no answer, checked with the
airlines and then with the MGM Grand Hotel to see if JOB
had ever arrived in the room the D.E.A. had reserved for him.
Baron finally reached JOB in that room.
Agent Cameron’s plan was to have JOB meet Baron in
the bar of the MGM Grand Hotel, where Baron was to show
him a brief case containing two bags of procaine and effect a
transfer of money. Thereupon, an arrest was to occur.
Baron and JOB did meet in the bar, but JOB indicated
he had half of the money in his room and that the other person
had the other half in a room on the floor above him. JOB took
Baron to his room and showed him $24,000 in cash. Baron and
JOB returned downstairs to retrieve the brief case. They then
proceeded to the elevator to go to the other person’s room.
Several agents were also on the elevator. Upon exiting, Baron
anJ JOB began to walk down the hallway. JOB, however,
became nervous. At that point, Cameron identified himself
and arrested JOB. The agents then proceeded to the other
person’s room, where TAVELMAN was eventually placed
under arrest.
REASONS FOR GRANTING A WRIT
I. Petitioner was denied due process in that he was
improperly induced by the outrageous and unconscionable
behavior of government agents who originated, conceptual-
ized and engineered the entire plan.
Il. The conduct of the government agents was parti-
cularly outrageous and reprehensible in that there never was
any contraband or controlled substance in existence providing
an objective basis for the commission of a crime.
—10—
Petitioner Was Denied Due Process In That He
Was Improperly Induced By The Outrageous And
Unconscionable Behavior Of Government Agents
Who Originated, Conceptualized And Engineered
The Entire Plan.
The history of the justice system in our society reveals
a long-standing commitment to human rights and human
dignity, and to a system of criminal law based on considera-
tion of due process and respect for the canons of decency
and fairness. Rochin v. People of California, 342 U.S. 165
(1952). Due process of law embodied in the Fifth Amend-
ment is “a summarized constitutional guarantee of respect
for those personal immunities which are ‘so rooted in the
traditions and conscience of our people as to be ranked as
fundamental’ [citation], or are ‘implicit in the concept of
ordered liberty’ [citation]. Rochin, supra, at 208. In
Rochin, the United States Supreme Court invalidated a
conviction based on evidence obtained in a manner which
was shocking to human reason and conscience, and offended
“a sense of justice.” Jd. at 209-210. The Court noted that
due process of law requires in each case “an evaluation based
on a disinterested inquiry pursued in the spirit of science, on
a balanced order of facts exactly and fairly stated, on the
detached consideration of conflicting claims [citation] ,ona
judgment not ad hoc and episodic but duly mindful of recon-
ciling the needs both of continuity and of change in a progres-
sive society.” Id. at 209. The need to enforce the law must
—} j—
be balanced against the community’s sense of fair play and
decency. Were the law to be cloaked in shocking and morally
reprehensible conduct, it would soon be discredited and
“brutalize the temper of a society.” Jd. at 210. These same
considerations and ethical and moral priaciples regarding the
conduct of government underlay the development of the law
regarding entrapment. When police officers participate in
criminal activity to an intolerable degree, ostensibly to prevent
violations of law, but, instead, serving to create further crime,
such conduct has been held repugnant to the American criminal
justice system and contrary to public policy. Sorrells v. United
States, 287 U.S. 435, 444 (1932); Sherman v. United States,
356 U.S. 369 (1958).
Thus, principles of due process and the supervisory power
of the judiciary over governmental conduct have been inter-
woven into considerations designed to curb overreaching police
activity in the manufacture of crime.
The United States Supreme Court has dealt with the
defense of entrapment in four major cases. In Sorrells v. United
States, supra, a government: agent visited cdefendant’s home, rep-
resented himself as a veteran of war like the defendant, and asked
repeatedly and persistently (three to five times) for some liquor.
The agent was the only one of several persons present who asked
about securing alcohol. The defendant said he had no liquor, but
after continual requests, as well as sentimental reminiscing about
their experiences as companions in arms, defendant said he would
try to get some liquor. When he returned with some, he was
arrested. The Court found this governmental behavior a gross
abuse of authority. The Court noted that while the predisposi-
tion and criminal design of the defendant were relevant, the
critical consideration was whether the alleged offense was com-
iin
mitted at the instance of government officials and whether
the offense was the product of the creative activity of the
government officials. 287 U.S. at 451.
In the second case, Sherman v. United States, supra,
356 U.S. 369, the defendant was induced by the repeated
requests of a government informer to supply him with nar-
cotics. The defendant was unwilling from the beginning to
do this, but, predicated on the presumed suffering of the
informer, finally acquiesced and was thereafter arrested. The
Court held that entrapment was established as a matter of law,
due to the fact that repeated requests had been necessary to
overcome the defendant’s initial refusal, and that undue per-
suasion had been exercised through recurring meetings and
conversations regarding mutual narcotics experiences. 356
U.S. at 373. The test for entrapment was whether the crim-
inal design originated with the officials of the government and
was implanted in the mind of an unwilling individual, or whether
that individual possessed the disposition to commit the alleged
offense. 356 U.S. at 371-72. The Court stated that entrapment
occurred when the criminal conduct was the product of the
creative activity of law enforcement officials. Jd. In a con-
curring opinion in Sherman, four justices noted that courts
refuse to convict an entrapped defendant not because his
conduct falls outside the proscription of a statute, but because
the methods employed on behalf of the government to bring
about conviction cannot be countenanced. 356 U.S. at 380.
The third situation in which the Supreme Court consid-
ered the law of entrapment, United States v. Russell, 411 U.S.
423 (1973), involved the supplying of an essential ingredient
by a government agent for the manufacture of a narcotic sub-
stance. In Russell, the criminal enterprise of unlawfully manu-
inn
facturing the drug was already in process when the agent
entered the scene. Rather than focusing its analysis solely
on entrapment, the Court expanded the discussion to incor-
porate considerations of due process and the courts’ super-
visory powers, and whether the government’s involvement
in the crime was so vital and so outrageous as to have violated
principles of fundamental fairness as described in Rochin vp.
California, supra. 411 U.S. at 431-32. Russell involved the
illicit manufacture of drugs and a continuing illegal business
enterprise, where infiltration and limited participation in
unlawful practices was often a necessary means of izvesti-
gation. In upholding the defendant’s conviction the Court
nevertheless reaffirmed the holding in Sherman:
“The function of law enforcement is the
prevention of crime and the apprehension of
criminals. Manifestly, that function does not
include the manufacturing of crime. Criminal
activity is such that stealth and strategy are
necessary weapons in the arsenal of the police
officer. However, ‘A different question is pre-
sented when the criminal design originates with
the officials of the government, and they implant
in the mind of an innocent person the disposition
to commit the alleged offense and induce its com-
mission in order that they may prosecute.’ ”’
Id, at 372, 78 S. Ct. at 820, quoting
Sorrells v. United States, supra, 287
U.S. at 442, 53 S. Ct. at 212.
It is when the government’s deception implants the criminal
design in the mind of the defendant that the defense of en-
trapment comes into play. On the other hand, when the
ary
defendant is predisposed to commit the crime and himself
planned its commitment, then the defense of entrapment
may not apply.
In Russell, the Court noted that the defendant conceded
that the jury finding as to his predisposition was supported by
the evidence. In addition, the defendant was an active parti-
cipant in an illegal drug manufacturing enterprise which began
before the government agent appeared on the scene and con-
tinued after he left the scene. Thus, he was not an “unwary
innocent,” but an “unwary criminal.” 411 U.S. at 436.
Finally, in Hampton v. United States, 426 U.S. 484 (1976),
the defendant was convicted of distributing heroin to a govern-
ment agent which had been supplied to him by a government
informant. The Court was divided on the outcome. In a plurality
opinion, three justices held that where the government and the
defendant acted in concert with one another, and the defendant
conceded or the jury found a predisposition to commit the
crime in question, not only was the defense of entrapment
unavailable, but a violation of due process could not be claim-
ed, as no protected right of the defendant had been violated.
Two justices joined in affirming the conviction, but concluded
that Russell did not foreclose reliance on due process principles
in every case where the government was able to prove predisposi-
tion. In a dissenting opinion, three justices again proclaimed
themselves aligned with the concurring opinion in Sherman v.
United States, supra, the separate opinion in Sorrells v. United
States, supra, and the dissent in United States v. Russell, supra,
all of which held that the proper focus of the defense of entrap-
ment was on the unconscionable methods used by the govern-
ment to bring about a conviction.
Faced with this lack of agreement, the various Courts of
“ S
Appeals have struggled to delineate a standard upon which to
base a determination as to whether police conduct in a parti-
cular case was so overreaching as to bar prosecution as a matter
of due process of law.
The Fifth Circuit, in United States v. Webster, 606 F.2d
581 (Sth Cir. 1979), noted that although Russell required that
pre-eminence be given to the predisposition factor, “neither it
nor reason requires us to abandon all consideration of the char-
acter of police conduct in a given affair.” 606 F.2d at 584.
In United States v. Reynoso-Ulloa, 548 F.2d 1329 (1977),
cert. denied 436 U.S. 926 (1978), the Ninth Circuit sought to
ascertain the precise meaning of predisposition as delineated in
Sorrells and Sherman, and found that a number of factors must
be considered in determining whether the government had im-
planted the criminal design in an otherwise innocent defendant.
The court stated as follows:
“Among these [considerations] are the charac-
ter or reputation of the defendant, including any
prior criminal record, whether the suggestion of the
criminal activity was initially made by the govern-
ment; whether the defendant was engaged in the
criminal activity for profit; whether the defendant
evidenced reluctance to commit the offense, over-
come orily by repeated government inducement or
persuasion; and the nature of the inducement or
persuasion supplied by the government. While none
of the factors alone indicated either the presence or
absence of predisposition, the most important factor,
as revealed by Supreme Court and other decisions,
is whether the defendant evidenced reluctance to
engage in criminal activity which was overcome by
—16—
repeated government inducement.” 548 F.2d at
1136. (Emphasis supplied.)
The Third Circuit also as employed an analysis similar
to the Fifth Circuit with regard to a government agent’s supply-
ing of contraband to a defendant. United States v. West, 511
F.2d 1083 (3d Cir. 1975); United States v. Twigg, 588 F.2d
3) 5 (3d Cir. 1978); United States v. Graves, 556 F.2d 1319
(5th Cir. 1977); United States v. Bueno, 447 F.2d 903 (Sth
Cir. 1971). In Twigg, a convicted felon agreed to aid the D.E.A.
in apprehending illegal drug traffickers. He contacted 2 former
acquaintance and organized the setting up of a laboratory to
produce speed. Arrangements were made by telephone, which
conversations were recorded and introduced into evidence at
trial. The government supplied its informant with essential
chemicals, a rented farmhouse, and glassware. The informant
purchased all of the supplies for the lab. A second defendant
became involved in the operation in order to repay a debt to
the other. The laboratory operated for one week, with the
government informant in charge.
In reversing a conviction, the court in Twigg noted that
its decision was not based on the traditional entrapment de-_ .
fense, for predisposition was shown by the defendant's lack
of reluctance to participate and lack of need for inducements.
The basis for the court’s decision was the overreaching extent
of police involvement such as to constitute ‘‘a demonstrable
level of outrageousness.” 588 F.2d at 380. The court delin-
eated the rule left by Hampton v. United States, supra, as
follows:
“ . . . although proof of predisposition to
commit the crime will bar application of the en-
trapment defense, fundamental fairness will not
wilt..
permit any defendant to be convicted of a crime
in which police conduct was ‘outrageous.’ See
United States v. Prairie, 575 F.2d 1316, 1319 (9th
Cir. 1978); United States v. Johnson, 565 F.2d 179,
181 (1st Cir. 1977). Where the facts can easily be
resolved, the validity of the defense is to be decided
by the trial court. United States v. Graves, 556 F.2d
1319, 1322 (Sth Cir. 1977).” 588 F.2d at 379.
In ascertaining whether the police conduct in that particu-
lar situation was ourrageous and violative of “fundamental fair-
ness” necessitating reversal, the Court noted the following
factors: (1) a convicted felon, striving to reduce the severity
of his sentence, had made the initial suggestion; (2) the govern-
ment originated the illicit plan and supplied the ingredients and
other means to facilitate the activities; (3) there was no cost to
defendants in the entire operation; (4) at all times the govern-
ment agent was completely in charge and furnished expertise;
and (5) the involvement of defendants was minimal and at the
specific direction of the agent. Of vital importance in deciding
this constitutional question was “the extent to which the gov-
ernment instigated, participated in, or was involved or enmesh-
ed in, the criminal activity itself.” United States v. Szycher,
585 F.2d 443, 447 (10th Cir. 1978), citing United States v.
Spiney, 508 F.2d 146 (10th Cir. 1975), cert. denied 421 U.S.
949. |
Other Circuits as well have wrestled with the question of
the necessary level of police overreaching required in order to
find a violation of due process.
The D. C. Circuit found such behavior in United States v.
Borum, 584 F.2d 424 (D.C. Cir. 1978). where government
agents induced the defendant to sell them guns through repeat-
—18—
ed requests some 20 times. The court held that while the
principal element in the defense of entrapment might be the
defendant’s predisposition, this did not totally subsume the
question of inducement, which illuminated one critical, addi-
tional element of the entrapment defense: instigation of the
criminal act by government agents. 584 F.2d 425-27. Of
concern to this court was the fact that in that case the agents
had asked the defendant about guns some twenty times, while
in Sorrells the Supreme Court found inducement upon three
to five requests, and in Sherman initial reluctance and later
accession to repeated importunings were fundamental and
material.
In most, if not all, of the recent cases where conviction *
has been affirmed involving a claim of entrapment or violation
of due process through outrageous police conduct, the defend-
ant himself either initiated the criminal activity, never refused
the government offer, was involved in the planning of produc-
tion and distribution of the contraband, or made the initial
offer to the government agent. United States v. Perez, 600
F.2d 782 (10th Cir. 1979); United States v. Williams, 613 F.2d
560 (Sth Cir. 1980); United States v. Corcione, 592 F.2d 111
(2d Cir. 1979); United States v. Brooks, 567 F.2d 134 (D.C.
Cir. 1977); United States v. Szycher, supra; United States v.
Leja, 573 F.2d 244 (6th Cir. 1977); United States v. Reifsteck,
535 F.2d 1035 (8th Cir. 1976); United States v. Esquer-Gomez,
550 F.2d 1231 (9th Cir. 1977). Where the defense has been
upheld, these elements have generally been negated. In deter-
mining the question of predisposition underlying the decision
as to whether an entrapment defense is available, the Ninth
Circuit has suggested that “evidence that government agents
participated in a criminal scheme, and in fact suggested it, and
—19—
even supplied the contraband, is of course highly relevant.”
United States v. Gonzales-Benitez, 537 F.2d 1051 (9th Cir.
1976). In United States v. Gonzales, 539 F.2d 1238 (9th
Cir. 1976), the Ninth Circuit further noted that while it
was not improper for law enforcement agents to infiltrate
criminal rings and gain the confidence of the participants,
nor impermissible to supply some item of value toward the
perpetration of the crime, if the agents engineered and direct-
ed the criminal enterprise from start to finish, such extveme
conduct could arguably constitute a due process violation.
539 F.2d at 1240.
Based on the foregoing discussion, it is clear and indis-
putable that the government conduct in the instant case was
outrageous and violative of the Fifth Amendment. Here, the
government agents originated, conceptualized and planned
the entire scheme. There was no ongoing criminal enterprise
which they simply infiltrated. No prior criminal record of
either defendant was shown. As in Sorrells, the agent here
asked repeatedly (there, three times; here, well over twenty-
five) for the defendant to become involved. Here, as in Sor-
rells, Sherman and their progeny discussed above, petitioner
was extremely reluctant and unwilling to participate, which
indicates lack of predisposition to commit the particular crime.
The agent had to lure him out of the State through continual
tele phone calls, promises of women, gambling, fun and enter-
tainment, as well as outright lies about the very existence of
contraband and its unbelievable quality and price. The govern-
ment agent promised petitioner there would be no cost to him;
the government would pay for and take care of everything.
The instant case also evidences amazing similarity to the
Third Circuit case of United States v. Twigg, supra, where a
violation of due process was found. There and here, a convict-
ed criminal made the initial suggestion, agreed to aid the D.E.A.,
and contacted a former acquaintance. There and here, the gov-
ernment agent organized the project and made arrangements by
telephone, which conversations were recorded and introduced
into evidence at trial. There was no cost to the defendants in
either case. At all times the agent was completely in charge
and furnished expertise. There and here, the government sup-
plied (or pretended to supply) the essential element or contra-
band. There, the court found the entrapment defense unavailable
because the defendant showed no reluctance and there was no
need for any inducements, but did find the police conduct out-
rageous. Here, there was extreme reluctance and unwillingness
and the use of many inducements upon defendant. The involve-
ment of defendants in each case was minimal and at the specific
direction of the agent. Petitioner actually rejected the offer of
the government agent and had to be lured, on total pretext, to
Reno from California, where he otherwise had no intention of
going. In the face of such reluctance and rejection, it is diffi-
cult to be persuaded that petitioner was “predisposed” to
commit this crime. Finally, and most heinously, the govern-
ment was to supply the contraband itself. Were this a case in
the Fifth, Third or D. C. Circuit, the law would be clear that
such conduct may not be condoned. United States v. Bueno,
supra; United States v. Oquendo, 490 F.2d 161 (Sth Cir. 1974);
United States v. Mosley, 496 F.2d 1012 (Sth Cir. 1974); United
States v. Graves, supra; United States v. West, supra; United
States v. Twigg, supra; United States v. Borum, supra. Even
in the Ninth Circuit the law is clear that government agents
may not engineer and direct the criminal enterprise from start
to finish. United States v. Gonzales, supra. Nor may they lure
|
an individual from one jurisdiction to another in order
to arrest him. Carbajal-Portillo v. United States, 396 F.2d
944 (9th Cir. 1968). In Carbajal-Portillo, the court found
that the defendant would not have crossed into California
from Mexico but for the persuasion, deceitful representations
and inducement by the agent. The similarities to the instant
case are startling.
The Circuits have basically split in their approach to
this problem. As noted in the opinion of the Ninth Circuit
Court of Appeals (Appendix “‘B”’), the Third and D. C. Cir-
cuits have held police overreaching in initiating criminal
activity against a reluctant and uninvolved individual a
denial of due process in situations similar to the case at bar.
United States v. Twigg, supra; United States v. Borum, supra.
The Ninth Circuit should follow a similar approach in situa-
tions where the government engineers and facilitates the
entire criminal operation from start to finish and the record
is replete with instances of overreaching and shocking
behavior, as the court notes was supported by the record
here. The Court of Appeals did not dispute the fact that
the pretense of selling a non-existent substance was a novel
approach for the government. However, it felt that the gov-
ernment’s conduct did not approach the standard of out-
rageousness held by the Third and D. C. Circuits to be
sufficient to constitute an invalid conviction.
Petitioner contends that this is precisely the kind
of prohibited police conduct that should be discredited
by this Court as shocking and morally reprehensible and
contrary to due process and the best interests of our society.
x =
ll
The Conduct Of The Government Agents Was
Particularly Outrageous And Reprehensible In
That There Never Was Any Contraband Or Con-
trolled Substance In Existence Providing An
Objective Basis For The Commission of A Crime.
The Court of Appeals failed to note the implications of
the fact that no controlled substance was in existence, and
therefore, there was no basis for the commission of any crime.
Illustrative of the reprehensible nature of the conduct involved
here is the fact that not only was the government initiating a
novel approach of selling cocaine, but there never was any
cocaine to sell. The crime could not possibly have been com-
mitted, as there was no contraband in existence as part of any
conspiracy.
The statute prohibiting conspiracies is the same as that
prohibiting attempts to commit criminal acts, 21 U.S.C. § 846,
which reads as follows:
“Attempt and Conspiracy.
“Any person who attempts or conspires to
commit any offense defined in this subchapter
is punishable by imprisonment o- fine or both,
which may not exceed the maximum punishment
prescribed for the offense, the commission of which
was the object of the attempt or conspiracy.”
The discussion of impossibility as a legal defense has
generally taken place in the context of attempt situations,
but as both are prohibited by the same statute and may be
similarly incompleted crimes, the same arguments are relevant
to both situations. The charge in the instant case could be
characterized as conspiracy to attempt to buy cocaine.
A variety of approaches have been taken by the various
state and federal courts when a defendant is charged with
attempt but it would have been legally or factually impossible
to complete the crime. See cases collected in United States v.
Brooklier, 459 F. Supp. 479 (D.C. Cal. 1978); United States
v. Deangelis, 430 F. Supp. 327 (D.P.R. 1976); and United
States v. Oviedo, 525 F.2d 881 (Sth Cir. 1976).
In United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973),
the Third Circuit ruled that a defense of impossibility! was
available in ‘attempt cases. In that case, the court found that
since a necessary element of the offense was missing, “‘attempt-
ing to do that which is not a crime is not attempting to commit
acrime.” Berrigan at 190. The crime of which the defendants
were charged, attempt to smuggle objects into and out of fed-
eral prison, required lack of knowledge by the Warden. Since
the Warden knew, this precluded conviction for attempt.
The court in Berrigan noted that intent was not the sole
criterion to be considered in determining criminal responsibil-
ity, particularly since it is not subject to direct proof but must
| Historically, some courts have made the distinction between
"factual impossibility" and '‘legal impossibility,"’ the former
being defined as occurring "when the objective of the defendant
is proscribed by the criminal law, but a circumstance unknown
to the actor prevents him from bringing about that objective,"
and the latter ‘when the actions which the defendant perfonns
or sets in motion, even if fully carried out as he desires, would
not constitute a crime." United States v. Oviedo, supra, at 882.
However, this area of legal theory ’; plagued with inconsistency,
so that many courts reject any artificial distinction between these
two defenses. United States v. Hair, 356 F. Supp. 39 (D.C. D.C.
1973).
=34—
be proved by circumstantial evidence, and is the subject of
inference and speculation not open to direct refutation.
482 F. 2d at 189, n. 39. Thus, the court emphasized the
necessity for maintaining the requirement that there be an
objective basis for measuring criminal activity. The will
was not to be taken for the deed.
An opposite approach was taken by the Second Cir-
cuit in United States v. Heng Awkak Roman, 356 F. Supp.
434 (S.D. N.Y. 1973), aff'd, 484 F.2d 1271 (2d Cir. 1973),
where defendants thought they were transporting a suitcase
containing heroin. Unknown to them, through the aid of
an informer, the contents of the suitcase were replaced with
soap powder. The defendants thereafter sold the soap powder
and were arrested for attempted possession with intent to dis-
tribute heroin. The court concluded that because the objec-
tive of the defendants was criminal, fac‘ual impossibility
existed and was not a defense. The approach here was
followed by the Second Circuit in United States v. Marin,
513 F.2d 974 (2d Cir. 1975), where government agents
again faked the existence of drugs. However, these two
cases may be distinguished from the case at bar, for there
the defendants exercised dominion and control over the
fake substance, in one instance soap powder and in the
other a mixture of quinine, starch and cocaine. In the
instant case, the government exercised total dominion and
control over the supposed contraband, its own procaine.
An approach somewhere between Berrigan and
Roman was taken by the Fifth Circuit in United States v.
Oviedo, supra. There, the defendant sold procaine, an
uncontrolled substance, to a government agent in order
to “rip him off,” and was charged with attempting to dis-
==
tribute heroin. The court held that this situation might be
easily characterized as either legal or factual impossibility,
and, thus, these distinctions were not particularly helpful.
The court ruled that in order for a defendant to be found
guilty of criminal attempt, the objective acts performed,
without any reliance on the accompanying intent, must
mark the defendant’s conduct as criminal in nature.
In Oviedo, there were only two objective acts: Oviedo
told the agent that he was selling him heroin, and the sub-
stance was concealed in a TV set. The court said:
“If another objective fact were present, if
the substance were heroin, we would have a
strong objective basis for the determination of
criminal intent and conduct consistent and sup-
portive of that intent. The test set out above
would be met, and, absent a delivery, the crim-
inal attempt would be established. But when
this objective basis for the determination of
intent is removed, when the substance is not
heroin, the conduct becomes ambivalent, and
we are left with a sufficiency-of-the-evidence
determination of intent rejected in the prepar-
ation-attempt dichotomy. We cannot conclude
that the objective acts of Oviedo apart from any
indirect evidence of intent mark his conduct as
criminal in nature. Rather, those acts are consist-
ent with a non-criminal enterprise. Therefore, we
will not allow the jury’s determination of Oviedo’s
intent to form the sole basis of a criminal offense
” $25 F.2d at 886.
Fifth Circuit cases following the decision in Oviedo have
=f...
generally looked for sufficient objective acts to strongly
corroborate a defendant’s subjective intent to commit a
crime. United States v. Korn, 557 F.2d 1089 (Sth Cir.
1977); United States v. Hough, 561 F.2d 594 (Sth Cir.
1977).
Ninth Circuit decisions have noted the rulings in
Berrigan, Roman and Oviedo in cases where impossibility
is a defense. United States v. Brooklier, supra; United
States v. Quijada, 488 F.2d 1253 (9th Cir. 1978). The
Ninth Circuit has generally agreed with the Fifth Circuit
approach in Oviedo. United States v. Brooklier, supra, at
481. This requires objective acts to unequivocally corrobo-
rate the necessary criminal intent.
In the instant case, the objective acts of petitioner
included (1) discussions with the agent about the government
sale of non-existent commodity, wherein petitioner showed
tremendous reluctance and rejected the agent’s offer (such
that the agent described petitioner as “really giving him a
hassle”’), and (2) using an airline ticket to Reno. These acts
are not unique; they are quite commonplace and perfectly
consistent with non-criminal behavior. United States v.
Oviedo, supra; United States v. Deangelis, supra. Thus, in
the instant case, there was no objective basis for the deter-
mination of intent, as required by Oviedo. Petitioner never
made an offer to sell any substance, controlled or non-
controlled. United States v. Quijada, supra. The only
objective acts on record were alleged negotiations for the
purchase of a non-existent substance. Therefore, in those
Circuits following the approach in Oviedo, reversal is com-
pelled.
The D. C. District Court in United States v. Hair, supra,
=, =
was faced with a situation where the defendant was charged
with attempt to receive stolen property, but the item (a tele-
vision set) had not in fact been stolen. The court held that
no conviction could be had for an unsuccessful endeavor to
do that which is not a crime. In Hair, the officer secured a
new TV set, which he gave to an informant with instructions
to sell it to the defendant and to advise the defendant that it
was a stolen set. Thereafter, the defendant was arrested. The
court found that no crime had been committed.
The similarity to the case at bar is clear, for here the
police officer also was the source of the property which was
the subject matter of the crime and which subject matter
made it impossible for petitioner to commit the crime.
There is some discussion of the problem of impossibility
in cases where the charge is conspiracy rather than attempt.
In United States v. Waldron, 590 F.2d 33 (ist Cir. 1979), the
defendants conspired to import and sell a valuable stolen
painting, which turned out to be a forgery. The court found
that under the circumstances of that case, a conviction might
be had even though the crime which was the object of the
conspiracy was impossible to commit. 590 F.2d at 34. This
was because the record indicated the advancement of the con-
spiracy by the defendants by numerous overt acts, including:
initiating many telephone calls, taking several trips abroad,
and delivering, selling and transporting a painting. The court
noted that substantial steps had been taken by the defendants
‘o bring the scheme to fruition.
in the case at bar, however, the defendants had no scheme
—the scheme was that of the government. The defendants took
no substantial steps toward accomplishing a goal; other than
traveling to Reno, nothing else occurred.
= =
On point here is United States v. Binetti, 552 F.2d 1141
(Sth Cir. 1977), where defendant’s conviction for conspiracy
to possess and distribute cocaine was reversed when the sale
actually involved a non-controlled substance and not. cocaine.
Reversal occurred even though the defendant knew of, but
did not participate in, prior drug sales involving the same
individuals, and had taken an active role in the particular
sale for which he had been arrested.
In the instant case, involving a similar situation of im-
possibility, no contraband of any kind was exchanged.
Neither the defendants nor the government possessed any
contraband or non-controlled substance at all. Far from
conspiring to “rip off” the government agents, the govern-
ment agents here conspired to “rip off’ the defendants, and
then arrested the defendants for conspiring to possess and
distribute the government’s own procaine. This is precisely
the kind of illegal police activity acknowledged by courts
as a fundamental danger to be avoided.
Therefore, due to the '»ck of an objective basis for the
commission of a crime and the outrageousness of the police
conduct in denial of due process, a reconsideration of peti-
tioner’s conviction must be had. This is particularly important
in light of the fact that the Ninth Circuit has taken a position
and approach different from the Third and D. C. Circuits in
such matters. United States v. Twigg, supra, 558 F.2d at
378-80 (3d Cir. 1978); United States v. Borum, supra, 584
F.2d at 427-30 (D.C. Cir. 1978).
CONCLUSION
This petition presents fundamental issues regarding due
= =
process and government overreaching in the manufacture of
crime. Various Courts of Appeals have interpreted the require-
ments for outrageous police conduct in such situations differ-
ently. Petitioner’s analysis is consistent with historical and
constitutional doctrine. It is respectfully requested that this
Petition for Writ of Certiorari be granted.
Respectfully submitted,
VICTOR SHERMAN
of
NASATIR, SHERMAN & HIRSCH
Counsel for Petitioner
INDEX TO APPENDIXES
“-— Judgment and Commitment Order
filed and entered February 25, 1980,
in the United States District Court
for the District of Nevada ..........
“B” Opinion of the United States Court of
for the Ninth Circuit decided
TU By BOGS Secs ccccccvecsvdees
“— Order denying Petition for Rehearing
and suggestion for rehearing en banc
filed September 25, 1981 in the Court
of Appeals for the Ninth Circuit ......
APPENDIX “A”
JUDGMENT AND COMMITMENT ORDER
In the United States District Court for the District
of Nevada.
Docket No. CR-R-79-39-ECR.
UNITED STATES OF AMERICA vs. STEVEN JOB.
[Filed and Entered February 25, 1980]
In the presence of the attorney for the government
the defendant appeared in person on this date, FEBRUARY
25, 1980, with counsel, EDWARD L. MASRY . . . there
being a finding/verdict of GUILTY as to Cts. 1 & 2.
Defendant has been convicted as charged of the offenses
of 21 U.S.C. 846, conspiracy to possess with intent to distribute
a controlled substance, Ct. 1; and 18 U.S.C. 1952(a)(3), inter-
state travel in aid of racketeering enterprise, Ct. 2..
The court asked whether defendant had anything to say why
judgment should not be pronounced. Because no sufficient cause
to the contrary was shown, or appeared to the court, the court
adjudged the defendant guilty as charged and convicted and ordered
that: The defendant is hereby committed to the custody of the
Attorney General or his authorized representative for imprisonment
as to Ct. | for a period of eight (8) years, plus a special parole term
of three (3) years in accordance with 21 U.S.C. 960; as to Ct. 2
for a period of four (4) years, to be served consecutively and not
concurrently with term of imprisonment imposed in Ct. 1; it is
FURTHER ORDERED that bail is exonerated and sureties
released. . |
In addition to the special conditions of probation imposed
above, it is hereby ordered that the general conditions of probation
Appendix 2.
[not set forth herein] be imposed. The Court may change
the conditions of probation, reduce or extend the period of
probation, and at any time during the probation period or
within a maximum probation period of five years permitted
by law, may issue a warrant and revoke probation for a viola-
tion occurring during the probation period.
The court orders commitment to the custody of the
Attorney General and recommends incarceration at Federal
Prison facility at Lompoc, California.
EDWARD C. REED, JR.
U. S. District Judge
Dated February 25, 1980.
APPENDIX “B” 3.
OPINION OF THE COURT BELOW
In the United States Court of Appeals for the Ninth
Circuit.
No. 80-1128
UNITED STATES of America, Plaintiff-Appellee, v.
Jack Wilbur TAVELMAN, Defendant-Appellant.
No. 80-1129
UNITED STATES of America, Plaintiff-Appellee, v.
Steven JOB, Defendant-Appellant.
[Argued and Submitted February 9, 1981.
Decided July 13, 1981.)
Appeals from the United States District Court for the
District of Nevada.
Before SKOPIL and FARRIS, Circuit Judges, and
BELLONI,* District Judge.
FARRIS, Circuit Judge:
Jack Wilbur Tavelman and Steven Job appeal their
convictions and sentences for violation of 21 U.S.C. 68
841(aX(1), 846 (1976) (conspiracy to possess cocaine with
intent to distribute) and of 18 U.S.C. 6 1952(a)(3) (1976)
(Travel Act) (interstate travel with acts in furtherance of
intent to distribute cocaine). See 28 U.S.C. § 1291 (1976).
*The Honorable Robert C. Belloni, United States District Judge for the
District of Oregon, sitting by designation.
Appendix 4.
We affirm except the imposition of special parole terms
under 21 U.S.C. § 846 (1976), which we vacate.
I. FACTS
Baron, an inmate at the Douglas County Jail, contacted
DEA agent Cameron who accepted Baron’s offer to assist the
agency in apprehending persons involved in the distribution
of narcotics in Los Angeles. When Baron went to Los Angeles
in July, 1979, he took a photograph showing him holding sev-
eral bags filled with white powder giving the appearance of
cocaine (but actually procaine). Through one Meekins, middle
man, Baron met Silverman, another middle man. Over a period
of four days, Silverman made a number of calls to defendant
Job, attempting to entice him to fly to Reno to purchase some
very good cocaine from a large dealer.! During a subsequent
meeting at Job’s house, Baron and Job discussed the quality
and price of the cocaine and exchanged telephone numbers.
During this conversation, Job expressed reservations about
the proposed purchase because he already had one kilo of
cocaine that he was attempting to sell. After three or four
days in Los Angeles, Baron returned to Reno and reported
that Job was not.interested in purchasing cocaine. Over the
1 During trial, testified over objecton to a prior transaction
occurring between , Tonkowicz ('‘Tea Bags"), and Job one
month before the arrests. Silverman and Tonkowicz had encountered
one another at a mutual friend's home. When Tonkowicz showed Silver-
man a pound of cocaine he had for sale, Silverman telephoned Job and
went to Job's home with a small sample. Several days later Silverman
and Tonkowicz returned to Job's home, where Job gave Tonkowicz
approximately $27,000. Another person at Job's home, identified by
Silverman as Tavelman, had gone to the back of the house before the
exchange of money.
Appendix 5.
next few days, however, Baron made six recorded telephone
calls from the Reno DEA office to Job in Los Angeles in which
he increased the attractiveness of the trip to Reno. In his accep-
tance, Job mentioned that his friend Jack, an accountant, would
travel with him to Reno to analyze the cocaine and would supply
half the purchase money.
Job and Tavelman flew to Reno from Los Angeles on July
20, 1979 on Western Airlines flight No. 144. Baron and Job
met in the bar of the MGM Grand Hotel. Baron opened his
brief case an inch or so to display two plastic 5-Ib. bags of
powder appearing to be cocaine. Job then took Baron to his
room to show him $24,000 in cash, indicating that his friend
had the other half of the purchase money in a room on the
floor above. Job said that a cocaine iaboratory had been set
up in the bathroom of his friend’s room. Baron and Job return-
ed to the bar, where Baron retrieved his suitcase from Cameron,
an alleged compatriot. They then went to the elevator, to go to
Job’s friend’s room to test the cocaine. Several DEA agents got
on the elevator with Baron and Job, including Cameron. On
leaving the elevator and starting down the hallway, Job asked
. Baron if he was alone. Cameron, who had left the elevator on
the same floor, then arrested Job. Job requested that they return
to his room. A pouch containing money was seized and opened
when the group returned to Job’s room. An airline ticket which
fell out of Job’s coat was also seized. Approximately $1,000
was taken from Job’s person.
Following Job’s arrest, agent Cameron attempted to locate
Job’s partner, “Jack the accountant.” The hotel management
provided information that the only single man checking in on
the same day as Job and occupying a room on the floor above
was registered as “Jim Freeman” and was located in room No. 2417.
Appendix 6.
Cameron proceeded to that room, identified himself to
Tavelman as a DEA agent investigating a narcotics arrest
occurring earlier, and asked to be admitted. Tavelman
admitted Cameron, who was accompanied by four other
agents, to the room. In response to Cameron’s questions,
Tavelman admitted that he was an accountant, had register-
ed under a false name, had $22,000 cash in the room, and
had traveled from Los Angeles on the flight known by the
agents to have been Job’s. Tavelman denied knowledge of
or ‘nvolvement in the narcotics deal under investigation.
Tavelman refused Cameron’s request to search his bathroom
and requested consultation with an attorney. Cameron then
arrested Tavelman and read him the Miranda warnings.
Tavelman’s attempts to contact his attorney were unsuccessful.
After arrest, Tavelman consented to the search. He took
. Cameron into the bathroom where a cocaine laboratory was
found. He also produced a purse with money in it and some
cocaine. Cameron later testified at trial that, during this time,
Tavelman had told him that if the cocaine tested out, “they
were going to use the money to buy the coke.”” Later, Job
and Tavelman met in the hallway of the DEA office. Job said,
“Jack, I see they got you, too. I just want you to know that
they didn’t get you through me.” Tavelman directed his response
to Cumeron. The parties disagreed on that response: He asked
either “How did you get me?” or “How did you get that?”
On August 9, 1979, Tavelman and Job were indicted in
the District of Nevada (1) for conspiracy to possess cocaine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
846 (1976) and (2) for interstate travel with intent to distribute
cocaine toward which end acts were consummated in violation
of 18 U.S.C. § 1952(aX(3) (1976).
Appendix 7.
Tavelman’s and Job’s pretrial motions to dismiss under
Fed.R.Crim.P. 12(b) were denied in their entirety. Tavel-
man’s motion to suppress evidence obtained from his hotel
room, including his statements at that time, was denied in its
entirety. At the same pretrial hearing, Job’s motion to suppress
the pouch and money seized from his hotel room was granted
and his motion to suppress the airline ticket was denied. Tavel-
man’s pretrial motion for a hearing to determine the admissibil-
ity of confessions, admissions, and assertive conduct, see 18
U.S.C. § 3501 (1976) (motion in limine) , was also denied.
A three-day jury trial, commencing on January 16, 1980,
resulted in convictions of both defendants on both counts of
the indictment. At trial, defendants renewed their motions to
suppress the statements made by Tavelman in his hotel room
regarding the intended use of the money and by Job and Tavel-
man in the DEA cffice. The court ruled that Tavelman’s state-
ment in the hotel room would be excluded and that Job’s and
Tavelman’s statements in the DEA office would be used only
against the codefendant who made them. Later, the court
ordered the defendants’ statements at the DEA office stricken
from the record and admonished the jury to disregard them.
Defendants’ motions for acquittal at the end of the prosecution’s
case were denied. The motions for acquittal were converted into
motions for mistrial under Bruton for the three extrajudicial state-
ments of the defendants. The court denied the mistrial motions
but admonished the jury.
On February 25, 1980, Tavelman was sentenced to a five-
year term on Count I with a special parole term of three years
under 21 U.S.C. § 960 (1976) and to a two-year term, to run
concurrently with that on Count I, and a $5,000 fine on Count
Il. Job was sentenced on the same day to an eight-year term on
Appendix 8.
Count I with a special parole term of three years under 21
U.S.C, 6 960 (1976) and to a four-year term, to run consecu-
tively with that on Count I, on Count II.
Il. SUFFICIENCY OF THE INDICTMENTS
An indictment must inform the defendant of “the nature
and cause of the accusation.” U.S.Const. amend. VI. Accord,
Fed.R.Crim.P. 7(c)(1); United States v. Cecil, 608 F.2d 1294,
1296 (9th Cir. 1979) (per curiam). An indictment which
tracks the offense in the words of the statute is sufficient if
those words fully, directly, and expressly set forth all the
elements necessary to constitute the offense intended to be
proved. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct.
2887, 2907, 41 L. Ed.2d 590 (1974). The indictments of
Tavelman and Job contained the specific dates of their alieged
criminal violations, the statutory provisions under which the
indictments issued, and brief descriptions in statutory terms
of the nature of the criminal activity alleged.
A. Count!
Count I of the indictments alleged that Tavelman and
Job conspired, between July 12 and July 20, 1979, to possess
cocaine with intent to distribute it in violation of 21 U.S.C.
88 841(a)(1), 846 (1976). Job and Tavelman contend that,
although the existencé of a substantive count may substitute
for a definite statement of essential facts ox overt acts, their
indictments failed either to contain a substantive count or to
allege essential facts or overt acts and were therefore constitu-
tionally defective.
Appendix 9.
An indictment under 21 U.S.C. § 846 (1976) is sufficient
if it alleges:
a conspiracy to distribute drugs, the time during which
the conspiracy was operative and the statute allegedly
violated, even if it fails to allege or prove any specific
overt act in furtherance of the conspiracy.
United States v. Marable, 578 F.2d 151, 154 (Sth Cir. 1978),
overruled on other grounds, United States v. Rodriguez, 612
F.2d 906, 919 & n.35 (Sth Cir.) (en banc) (by implication),
cert. denied, ..... US. ..... , 101 S.Ct. 108, 66 L.Ed.2d 41
(1980). Courts do not require as detailed a statement of an
offense’s elements under a conspiracy count as under a sub-
stantive count. E.g., Wong Tai v. United States, 273 U.S. 77,
81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927); United States v.
Pheaster, 544 F.2d 353, 360-61 (9th Cir. 1976), cert. denied,
429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977). United
States v. Cecil, 608 F.2d 1294, 1296-97 (9th Cir. 1979) (per
curiam), on which defendants rely, is inapposite. The indict-
ment in Cecil did not place the conspiracies in any time frame
whatsoever. The Count I indictments were adequate.
B. Count I
Count II of the indictments contained allegations that the
defendants, on or about July 20, 1979, traveled from Los Angeles
to Reno with intent to promote the unlawful activity of possession
with intent to distribute cocaine (in violation of 21 U.S.C. § 841(a)
(1) (1976) ) and that, on that same day, they committed acts
facilitating that unlawful activity in violation of 18 U.S.C. § 1952
(a3) (1976). Job and Tavelman contend that their indictments
under Count II were fata’ly defective because they failed to allege
Appendix 10.
any specific overt acts committed in furtherance of the unlawful
intent.
An indictment under the Travel Act requires allegations of
each of the three elements of the crime: (1) interstate commerce
or use of an interstate facility (2) with intent to promote an
unlawful activity and (3) a subsequent overt act in furtherance
of that unlawful activity. See, e.g., United States v. Wander,
601 F.2d 1251, 1258 (3d Cir. 1979); United States v. Polizzi,
500 F.2d 856, 897 (9th Cir. 1974), cert. denied, 419 U.S. 1120,
95 S. Ct. 802, 42 L. Ed. 2d 820 (1975). The indictments alleged
that on July 20, 1979: (1) the defendants traveled interstate
(between Los Angeles and Reno); (2) with the intent to promote
a violation of 21 U.S.C. § 841(a)(1) (specifically the possession
of cocaine with intent to distribute); and (3) thereafter knowing-
ly performed acts facilitating that unlawful activity. These alle-
gations are sufficient to state violations of 18 U.S.C. § 1952(a)(3).
We reject the defendants’ contentions.
Ill. SEARCHES OF THE HOTEL ROOMS
A. The Search of Job’s Room
Job concedes that he requested, after his arrest in the
hallway, that he and the agents return to his hotel room. He
contends, however, that he did not consent to a search of his
room and that the search was not supported by probable cause.
Upon conflicting evidence, the trial court found that Job
had consented to the agents’ entry into his room and that the
airline ticket was in “plain view’’ when it was seized, see generally
Coolidge v. New Hampshire, 403 U.S. 443, 464-71, 91 S. Ct.
2022, 2037-.40, 29 L. Ed. 2d 5641971). The record supports
Appendix il.
that finding. It is not clearly erroneous. See United States
v. Page, 302 F.2d 81, 85 (9th Cir. 1962) (en banc) (standard
of review for admissibility of evidence).
B. The Search of Tavelman’s Room
Tavelman contends that, because the agents’ entry into
his room was without probable cause, the evidence obtained
there should have been suppressed under the Fourth Amend-
ment. We understand but reject the argument. The court
could properly find from the record that Tavelman consented
to the agents’ entry into his hotel room and to their search.
“(W] hether a consent to a search was in fact ‘voluntary’
or was the product of duress or coercion, express or implied,
is a question of fact to be determined from the totality of all
the circumstances.” Schneckloth v. Bustamonte, 412 U.S.
- 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854 (1973).
A finding of consent by the trial judge should be reversed only
if, viewing the evidence in the light most favorable to the gov-
ernment, this court concludes that it is clearly erroneous.
United States v. Wasserteil, 641 F.2d 704, at 707 (9th Cir.
1981) (quoting United States v. O’Looney, 544 F.2d 385, 388
(9th Cir.), cert. denied, 429 U.S. 1023, 97 S. Ct. 642, 50 L. Ed.
2d 625 (1976).
Here, Tavelman gave indicia of consent when Cameron
came to his hotel room door and asked to be admitted to
question him about a recent narcotics arrest. Tavelman’s
election to contact his attorney at a time during the interview
when he may have reasonably suspected that the investigation
was focusing on him demonstrated an understanding of his
Miranda rights. The burden is on Tavelman to show that the
Appendix
finding of consent was clearly erroneous. See, ¢.g., United
States v. Townsend, 510 F.2d 1145, 1147 (9th Cir. 1975)
(per curiam). He fails to carry that burden.
IV. ADMISSIBILITY OF CODEFENDANTS’
STATEMENTS
Both de‘endants contend that the admission of their
three extrajudicial statements violated their Sixth Amend-
ment right to confrontation as articulated in Bruton v.
United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d
476 (1968). These three statements, which were admitted
into evidence at trial, were later ordered stricken from the
record by the district judge who then admonished the jury
to disregard them.
Cases subsequent to Bruton have distinguished—as
admissible—a codefendant’s admission which is a vague
reference from which guilt might be inferred from other
facts and evidence. See, e.g., United States v. Belle, 593
F.2d 487, 493-96 (3d Cir.) (en banc), cert. denied, 442
U.S. 911, 99 S. Ct. 2825, 61 L. Ed. 2d 277 (1979); United
States v. Wingate, 520 F.2d 309, 313-14 (2d Cir. 1975),
cert. denied, 423 U.S. 1074, 96 S. Ct. 858, 47 L. Ed. 2d
84 (1976). Although the statements admitted here did
serve to tie Tavelman and Job to one another in the crime,
they were not incriminating without reference to other,
admissible evidence. Further, even if there was Bruton
error, it was harmless beyond a reasonable doubt, see
United States v. Longee, 603 F.2d 1342, 1345 (9th Cir.
1979), in light of the nature of the statements, the striking
of the statements and instructions by the court, and the
12.
Appendix 13.
overwhelming admissible evidence that also tied the defend-
ants to one another. That other admissible evidence included
Silverman’s testimony about the cocaine purchase by Job a
month earlier during which Tavelman was present; the identical
Western Airlines’ flight from Los Angeles to Reno (on which the
defendants occupied first-class seats Nos. 4A and 4C); Job’s
statements and conduct at the hotel indicating the floor on
which his friend was located; Tavelman’s admission that he was
an account, as Job had said, and from Los Angeles; and the
cocaine laboratory found, as Job said it would be, in the bath-
room of Tavelman’s room. See United States v. Buckner, 610
F.2d 570, 574-75 (9th Cir. 1979), cert. denied, 445 U.S. 961,
100 S. Ct. 1646, 64 L. Ed. 2d 235 (1980).
V. ENTRAPMENT AND DUE
PROCESS CHALLENGES
Both defendants contend that the government’s role
in “originating, conceptualizing, and engineering the entire
plan” was entrapment. The defendants’ entrapment defense
fails factually because of the evidence adduced at trial. Gov-
ernment conduct which originates the criminal design and
implants it in the mind of an innocent or unwilling defendant
is entrapment. Sherman v. United States, 356 U.S. 369, 371-
73, 78 S. Ct. 819, 820-21, 2 L. Ed. 2d 848 (1958). To deter-
mine whether the government has implanted a criminal design
in the mind of an otherwise innocent defendant, the court
considers:
the character or reputation of the defendant, including
any prior criminal record; whether the suggestion of
the criminal activity was initially made by the Govern-
Appendix 14.
ment; whether the defendant was engaged in the criminal
activity for profit; whether the defendant evidenced reluc-
tance to cummit the offense, overcome only by repeated
Government inducement or persuasion; and the nature of
the inducement or persuasion supplied by the Government.
United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir.
1977), cert. denied, 436 U.S. 926, 98 S. Ct. 2820, 56 L. Ed. 2d
769 (1978). The record supports the finding that there was no
entrapment.
Alternatively, the defendants argue that the government's
conduct in “originating, conceptualizing, and engineering the
entire plan” was so shocking that it should offend the court's
“sense of justice.” The Third Circuit has held that outrageous
and overreaching police involvement invalidated a conviction
despite a showing of the defendant’s predisposition. See
United States v. Twigg, 588 F.2d 373, 378-80 (3d Cir. 1978).
See also United States v. Borum, 584 F.2d 424, 427-30 (D.C.
Cir. 1978), Although the record provides a basis for defendants’
argument, it also satisfies us that the conduct complained of
here does not reach that extreme area in which it is “outrageous”
or “grossly shocking.” See United States v. McQuin, 612 F.2d
1193, 1196 (9th Cir.), cert. denied, 445 U.S. 955, 100 S. Ct.
1608, 63 L. Ed. 2d 791 (1980); United States v. Smith, 538
F.2d 1359, 1361-62 (9th Cir. 1976).
VI. SUFFICIENCY OF THE TRAVEL
ACT EVIDENCE
Defendants contend that the Travel Act contemplates
convictions only for a continuous course of criminal conduct
in interstate commerce and that such a continuous course was
Appendix 15.
not sown by the evidence. Defendants rely primarily on
United States v. Donaway, 447 F.2d 940 (9th Cir. 1971). In
Donaway, a Ninth Circuii panel found the placing of one bet
to be a “sporadic Casual involvement”’ in, rather than a “con-
tinuous course” of, criminal activity proscribed by the Travel
Act. Id. at 944.
Neither evidence of large-scale operations nor long-
term duration is required to support a Travel Act conviction.
United States v. Cozzetti, 441 F.2d 344, 348 (9th Cir. 1971).
Instead, what must be shown is evidence of a continuous
enterprise and one act in interstate commerce in furtherance
of that enterprise. See United States v. Teemer, 214 F. Supp.
952, 958 (N.D. W.Va. 1963). Considering the quantity of
cocaine involved in the prior transaction proved at trial, the
jury could reasonably find a continuous course of criminal
activity. Viewing the evidence in the light most favorable
to the verdict, we do not find clear error. See United States v.
Anderson, 642 F. 2d 281 at 284 (9th Cir. 1981). The defend-
ants also contend that the evidence did not show a “continuous”
use of interstate facilities. The statute does not, however, re-
quire such proof. Once a showing of a continuous enterprise
is made, a showing of one transaction in interstate commerce
is sufficient to sustain a conviction under section 1952(a). See,
e.g., United States v. Teemer, 214 F. Supp. at 958. We reject
the defendants’ contention.
Vil. PROPRIETY OF SENTENCES
AND SPECIAL PAROLE TERMS
A. Job’s Sentence
Appendix 16.
Job contends first that he was incorrectly sentenced
under 21 U.S.C. § 960 (1976), rather than under 21 U.S.C.
§ 846 (1976), on Count I. We reject the contention. He
was not sentenced under 21 U.S.C. § 960 (1976), but only
given a special parole term under that provision.
Job also contends that his consecutive sentences were
illegally imposed because they arose from a single transaction
and identical facts and because a conspiracy is not an offense
punishable separately from one under the Travel Act. See
Tanaelli v. United States, 420 U.S, 770, 785 n. 17, 95 S. Ct.
1284, 1293 n. 17, 43 L. Ed. 2d 616 (1975); United States v.
Kearney, 560 F.2d 1358, 1365-67 (9th Cir.), cert. denied,
434 U.S. 971, 98 S, Ct. 522, 54 L. Ed. 2d 460 (1977). Proof
of a violation of 21 U.S.C. § 846 requires showing the elements
of (1) an agreement to violate the statute (2) with intent to
commit the underlying substantive offense and (3) a subse-
quent overt act in furtherance of that agreement. E.g., United
States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980).
Proof of a violation of 18 U.S.C § 1952 requires showing the
elements of (1) interstate travel or use of an interstate facility
(2) with inteat to promote an unlawful activity and (3) an
overt act in furtherance of the unlawful activity. United
States v. Wander, 601 F.2d 1251, 1258 (3d Cir. 1979). The
interstate element of section 1952 is not required under sec-
tion 846 and the agreement element of section 846 is not
required under section 1952. In the special context of
narcotics offenses, we have recently held that convictions
for conspiracy and the substantive offense under 21 U.S.C.
86 841(a)(1), 846 (1976) are permissible. United States v.
Wylie, 625 F.2d 1371, 1381 (9th Cir. 1980), cert. denied,
tite US. ....., 101 S. Ct. 863, 66 L. Ed. 2d 804(1981). By
Appendix 17.
analogy from Wylie, we uphold the convictions for conspiracy
and Travel Act violations, See United States v. Stevens, 612
F.2d 1226, 1231 (10th Cir. 1979), cert. denied, 447 U.S. 921,
100 S. Ct. 3011, 65 L. Ed. 2d 1113 (1980).
B. Both Defendants’ Special Parole Terms
Job argues, and the government concedes, that the special
parole terms imposed on both defendants under 21 U.S.C. 6
846 (Count I) are improper under Bifulco v. United States,
447 U.S. 381, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980). In
Bifulco, the Supreme Court held that section 846 does not
authorize the sentencing court to impose a special parole term”
on a defendant convicted of conspiracy to manufacture or
distribute a controlled substance. /d. at 400-01, 100 S. Ct.
at 2259. We therefore vacate the special parole terms imposed
on both defendants.
Affirmed in part and vacated in part.
2a "special parole term’ is a term of two years’ minimum imposed in
addition to a term of imprisonment. If the special parole is violated,
the original term of imprisonment may be increased by the period of
the special parole term. See 21 U.S.C. § 841(b)\(1 XB) (1976 & Supp. Il
1978); Bifuico, 447 U.S. at 384-85, 100 S. Ct. at 2250-51.
APPENDIX “C” 18.
ORDER DENYING PETITION FOR REHEARING
AND SUGGESTION FOR REHEARING EN BANC.
In the United States Court of Appeals for the Ninth
Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. JACK WILBUR TAVELMAN, Defendant-Appellant.
No. 80-1128.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. STEVEN JOB, Defendant-Appellant.
No. 80-1129.
[FILED SEPTEMBER 25, 1981]
Before: SKOPIL and FARRIS, Circuit Judges, and
BELLONI,* District Judge.
The panel as constituted in the above case has voted to
- deny the petitions for rehearing of appellants Tavelman and
Job. Judge Skopil and Judge Farris have voted to reject
appellant Job’s suggestion for rehearing en banc.
The opinion filed July 13, 1981 shall be amended as
follows. Add the following paragraph after the first iull
paragraph on ;age 3548 of the slip opinion [ page 12 of
Appendix “B” —just prior to “IV. Admissibility of Co-
defendants’ Statements”).
Nor are Tavelman’s Fifth Amendment
objections compelling. Even if he preserved
them on the record, the district court’s deter-
smuatnas Seiant C Betets, Steed Shia shit Bip Ses fhe
District of Oregon, sitting by designation.
Appendix 19.
mination that Tavelman was not in custody prior
to his formal arrest was not clearly erroneous.
The full court has been advised of the proposal to
amend the opinion, and of appellant Job’s suggestion for
en banc rehearing, and no judge has objected to the amend-
ment or requested a vote on the suggestion for rehearing en
banc. Fed. R. App. 35(b).
The petitions for rehearing are denied and appellant
Job’s suggestion for rehearing en banc is rejected. The opinion
filed July 13, 1981 is amended as set forth above.
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA )
)s.
County of Riverside )
I, the undersigned, say: I am and was at all times herein mentioned a citizen of
the State of California, County of Riverside, employed in the County of Riverside,
City of Corona, over the age of eighteen years and not a party to the within action
or proceeding; that
My business address is 1340 West Sixth Street, Corona, California 91720, that on
NOVEMBER _, 1981, 1 served the WITHIN PETITION FOR WRIT OF CER-
TIORARI (STEVEN JOB v, UNITED STATES OF AMERICA) on the following
named parties by depositing three copies thereof, enclosed in a sealed envelope
with postage thereon fully prepaid, in the United States Post Office in the City
of Corona, California, addressed to said parties at the addresses as follows:
SOLICITOR GENERAL OF THE UNITED STATES
U. S. Department of Justice
Washington, D. C. 20530
UNITED STATES ATTORNEY .
Federal Building
300 Booth Street
Reno, Nevada 89509
FOR - LELAND E. LUFTY
Assistant U. S. Attorney
ANDREW M. ZANGER, ESQ.
615 So. Flower Street, Suite 800
Los Angeles, California 90017
I declare under penalty of perjury that the foregoing is true and correct.
Executed on NOVEMBER _, 1981, at CORONA, CALIFORNIA.
D. A. Standefer
41 COPIES FORWARDED TO THE U. S. SUPREME COURT,
U. S. SUPREME COURT BUILDING, WASHINGTON, D.<. 20543
Dean-Standefer, 1340 W. 6th St. - Corona, Ca. 91720
(714) 734-0811
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