Petition — Saadon v. United States

82-9.

In The

Supreme Court of the

~-—

October Term, 1982

RAFAEL SAADON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

DILLER & SCHMUKLER

Attorneys for Petitioner

345 Park Avenue

New York, New York 10154

(212) 371-1400

CAROL MELLOR

Of Counsel

6923 LUTZ APPELLATE PRINTERS, INC.

QUESTIONS PRESENTED

Was the conduct of the government in this

case so shocking as to violate the due process

clause of the Fifth Amendment to the United

States Constitution?

Did the government's over-involvement in this

case, which included engaging in conduct which

jeopardized the very lives of the persons whom

it was investigating, reach such proportions

as to bar conviction of this defendant, despite

proof of his disposition to commit the crimes

charged, as a matter of due process?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................. i

INTRODUCTORY STATEMEN. .............. 1

ee SEIN: 4...’ sip ictinddvecivece. 1

5 5 sbcdcns dake de wach. vi 2

RIB SSE IE 7 net: Ne a reer 2

REASONS FOR GRANTING THE

EGG dated ti tn dks te evubes abs vése 7

EE A | nad oh ged ek aes Pode vad 16

APPENDIX ° . . . . . . . + . 7 . . . . la

ii

Table of Authorities

eee 3 United States, 452 U.S.

7

Rochin v. California, 342 U.S. 165

(1952)

United States v. Alexandro, (2d Cir.,

March 15, 1982)

United States v. Russell, 411 U.S.

United States v. Sherman, 200 F.2d

880, (2d Cir. 195

iii

INTRODUCTORY STATEMENT

RAFAEL SAADON, Petitioner, prays that a writ

of certiorari issue to review the judgment of the

United States Court of Appeals for the Second

Circuit made final in this case on June 4, 1982.

The parties to the judgment of the United States

Court of Appeals were Rafael Saadon, Gabriel

Outmezguine and Rafael Ben-Natan as Defendants-

Appellants and the United States of America as

Appellee.

OPINIONS BELOW

The decision of the United States Court of

Appeals for the Second Circuit, which was rendered

on June 4, 1982, was a summary opinion and order,

which will not be published. A copy of the opin-

ion of the Court is annexed hereto as Appendix

"A", infra.

JURISDICTION

The judgment o. the United States Court of

Appeals for the Second “ircuit (Appendix "A",

infra) was entered on June 4, 1982. Re-hearing

was not sought. The jurisdiction of this Court

is evoked under 28 U.S.C. §1254 (a). The basis

for federal juisdiction in the United States

District Court, Eastern District of New York,

which was the court of first instance in this

case, was that the petitioner and his co-defend-

ants were charged with violation of the United

States narcotics laws.

STATEMENT

Petitioner, Rafael Saadon, and his co-de-

fendants were charged and convicted in the

United States District Court for the Eastern

District of New York of the crimes of conspir-

acy to violate the narcotics laws and distri-

bution of controlled substances.

The government used a paid informant,

Marcel Atties, to gather evidence about and

prove this conspiracy. Atties made initial

contact with the co-defendant Outmezquine, and

met with him for the first time on February 9,

1981. At that meeting, Atties sought to obtain

heroin from Outmezguine and, at the same time,

broached the idea that he and Outmezguine im-

port 5-7 kilos of heroin from France.

This suggestion was made pursuant to a plan

of the government to employ the tactic of a

“reverse”. A reverse means that the government

agents pose as sellers of drugs in an attempt

to discover and seize money earmarked for nar-

cotics purchases.

After the inital contact between Outmez-

guine and Atties, a heroin transaction was con-

summated. It was claimed that petitioner, Rafae

Saadon, was the person who brought the drugs to

the scene of the transaction. Thereafter, two

additional drug sales took place, in which Saadon

participated and Saadon also participated in

discussions with respect to the importation cf

the heroin from France.

Atties knew that both Saadon and Outmez-

guine were addicted to heroin. In spite of

this knowledge, during the negotiations for:

the importation of the heroin from France, Attie

obtained from the Drug Enforcement Administrati

4.

a quantity of pure, undiluted heroin, which was

supposed to be a sample of the shipment from

France. With full knowledge of the defendants’

addiction to this substance, Atties gave this

pure heroin to these defendants, who immediately

ingested it by snorting it. Atties acknowledged

that he was not at all surprised when the de-

fendants ingested this heroin in his presence.

It was established at trial that the in-

gestion of this pure heroin was clearly dangerous

and potentially fatal to the defendants. In-

deed, had the defendants injected the heroin

rather than snorting it, the testimony from

Drug Enforcement Agency Agent Ward established

that they probably would have died.

When the testimony at trial revealed the

above-recited facts, a motion was made seeking

dismissal of the indictment on the grounds

that the conduct of the government had violated

due process.

The government attempted to justify its

conduct on the ground that if it had not pro-

vided a sample to these defendants, it never

would have discovered where the money which was

to be used for the purchase of the shipment of

heroin was kept. Thus, even though the gov-

ernment had obtained evidence that these defend-

ants supplied heroin to the confidential in-

formant in the past, it felt that, irrespective

of the risk to these defendants, there was a

legitimate governmental purpose in supplying

heroin to heroin addicts, since it would allow

the government to seize their money.

The motion to dismiss was denied, and on

appeal, the United States Court of Appeals for

the Second Circuit affirmed the judgment, holding:

“Appellant Saadon also argues

that the government's conduct

in this case was so shocking

as to violate the due process

clause of the Fifth Amendment

in that the government agent

supplied Saa with 2 grams of

heroin which was from 89-91%

pure, knowing that he was a

heroin addict, likely to ingest

it, thus risking Saadon's

life. This claim is without

merit. Supplying heroin samples

during a narcotics investigation

can hardly be labelled “egregious.”

Cf. United States v. Alexandro,

#81-1 ; 3 » * at

Cir., March 18, 1982). The

purity of the heroin was essential

since it was supposed to be a

sample of the uncut heroin coming

in from France."

Appendix "A"

at 3a-4Ga.

REASONS FOR GRANTING THE WRIT

This case presents for decision by this

Court the question of whether the government

may, in seeking evidence against a potential

defendant, engage in conduct which creates a

great risk that the defendant will be harmed

or killed. The facts are simple: Saadon was

a heroin addict who was presented by the gov-

ernment with an opportunity to import substantia

quantities of heroin into this country. Although

the government, through use of its informant,

had already gathered evidence that the defendant

was engaged ir the distribution of small quan-

tities of heroin, the government decided that

it was necessary to provide him with a quantity

of pure heroin in an attempt to seize money that

had been accumulated by the petitioner to pay

for the shipment.

Petitioner claims that this conduct vio-

lated due process because of the danger to him,

and, as a result, the government is precluded

from seeking a conviction against him based

on evidence obtained by this conduct. This

argument is predicated upon the species of the

entrapment defense which is measured by an ob-

jective test, rather than the subjective test

which focuses on the predisposition of the

defendant to commit the crime.

This type of “entrapment defense” was first

discussed by this Court in the case of United

States v. Russell, 411 U.S. 423 (1973). On the

facts before the Court in that case, it was

held that the conduct of the agents was not so

shocking as to constitute a violation of fund-

amental fairness, but the Court stated:

"We may someday be pre-

sented with a situation

in which the conduct of

law enforcement agents is

so outrageous that

due process principles

would absolutely bar

the government from

invoking judicial pro-

cess to obtain a con-

viction. See, Rochin

v. California, 342 U.s.

165 (1952)."

United States v.

Russell, supra,

GIL U.S. at 432.

In the case of Hampton v. United States, 45

U.S. 484 (1976), the plurality opinion held

that the Court had not intended, in Russell, to

provide a defense which would give the federal

judiciary a veto power over law enforcement

practices of which it did not approve. Two

justices, however, although agreeing with the

conclusion reached by the plurality, did not

join in the aspect of the opinion which fore-

closed any claim that governmental activities

10.

would not, under any circumstances, amount to

a due process violation.

The concurring opinion, written by Justice

Powell, in which Justice Blackmun joined, left

open the possibility that police “over-involve-

ment” in criminal activity might, under some

circumstances, reach such proportions as to bar

conviction of a pre-disposed defendant under the

principles of due process.

By this petition, we ask that this Court

recognize the defense based upon governmental

misconduct and hold that on these facts, such

misconduct precludes the conviction of the

petitioner.

Although this Court and other federal

courts have previously held that government

ll.

agents may provide controlled substances during

the course of narcotics investigations, this

case presents additional facts which are crucial

and which compell the conclusion that the govern

ment has gone too far. In this case, the heroin

was absolutely pure; was provided to persons

known by the government to be heroin addicts;

was given to them by a government informant who

was certainly aware of the likelihood that it

would be ingested by these defendants; and the

heroin was, in fact, ingested by the defendants*

The record established that the only reason that

defendants were in any condition to stand trial

* The government argued in the United States

Court of Appeals for the Second Circuit that al-

though the government's informant knew that the

defendants were heroin addicts, the government

itself should not be charged with that knowledge

This argument was resoundingly rejected by this

Court in the case of United States v. Sherman,

200 F.2d 194 (1952), and during oral argument, t

judges indicated that they were deciding the cas

on the assumption the the government did, in

fact, have knowledge of the fact that the de-

fendants were heroin addicts.

12.

on these charges was that they ingested the

heroin by snorting it rather than by injecting it.

The judges of the Court of Appeals recognized

that the conduct of the government herein was dan-

gerous to the defendants and, during oral argu-

ment, counsel was asked whether or not our only

objection to this procedure was in the fact that

it was dangerous. We replied in the affirmative.

In affirming the judgment, the Court below ob-

viously believed that so long as the government

could point to a legitimate governmental purpose

in engaging in such conduct, the danger to the

defendants was immaterial.

This attitude, and the conduct complained

of herein, cannot be condoned. The Fifth Amend-

ment to the Constitution of the United States

13.

protects, and guarantees, the right of persons

to life, liberty and the pursuit of happiness.

It has never before been held, and could not,

under the principles of due process, be held,

that the government, in order to obtain evidence

against a defendant, was privileged to engage

in conduct dangerous, and potentially fatal to,

that person.

The question of whether governmental con-

duct violates due process has previously been c

sidered by this Court in the context of whether

that conduct was “shocking to the conscience"

of the Court. It is submitted that it is truly

and fundamentally shocking that the federal

government would show such reckless disregard

for the lives and safety of suspects that it

would hand a potentially fatal dose of heroin

to a heroin addict. As nefarious as drug

14.

trafficking is, there is no justification for

the government's stooping to these levels in

order that its investigation might continue.

When this Court previously held that the

government can engage in illegal activities,

it presumably envisioned a method of control

which would insure that drugs distributed by

the government would not be consumed, particularly

where the sample provided was a potentially

fatal dosage. Although the Assistant United

States Attorney argued that the distribution

of heroin in this case was regulated by tight

procedures, those "safeguards" apparently did

not take into consideration the fact that the

distributees were addicted to the substance

provided, and were, therefore, likely to in-

gest it. In this respect, the government's

safeguards are clearly deficient.

15.

The Court of Appeals for the Second Circuit

was wrong in holding that the investigative

methods employed in this case were justified and

proper. Governmental misconduct which is dan-

gerous to the lives of people is abhorrent and

must be condemmed. As a result, we ask that

this Court accept jurisdiction of this case, and

address the issue of whether the government is

free, with impunity and without judicial sancti

to endanger the lives of persons whom it is

investigating.

CONCLUSION

For the foregoing reasons, a writ of cert-

iorari should issue to the United States Court

of Appeals for the Second Circuit to review

the judgment of that Court.

16.

For the foregoing reasons, a writ of

certiorari should issue to the United States

Court of Appeals for the Second Circuit to

review the judgment of that Court.

Dated: June , 1982

New York, New York

Respectfully submitted,

DILLER & SCHMUKLER, ESQS.

Attorneys for Petitioner

Office & P.O. Address

345 Park Avenue

New York, New York 10154

(212) 371-1400

Carol Mellor, Esq.

Of Counsel

17.