Petition — Gianni v. United States

82-8678 [tee

oct 18 ee

NO. ALEXANDER L. STEVAS.

L_ CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

Gary Gianni,

Petitioner,

Ve

United States of America,

Respondent.

Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

JOHN STEVEN BERK

JOHN S. BERK, P.A.

Counsel for Petitioner

Suite 104

408 South Andrews Ave.

Fe. Lauderdale, FL 33301

(305) 522-3307

THE QUESTION PRESENTED

Whether the conduct of Drug Enforcement

Administration agents in instigating a

drug transaction and supplying the control-

led substance to the Petitioner constituted

outrageous conduct and a denial of Due

Process.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Constitutional provision involved

Statement of the Case

Reasons for granting petition

Conclusion

Appendix

ii

Page

AUTHORITIES

Cases: Page

Hampton v. United States, 425 U.S. ag

’ ,9

United States v. Russell, 411 U.S.

G23 (1973) 6,7,8,10

United States v. Twigg, 588 F.2d

Statutes:

28 U.S.C. §1254(1) 1

Title 21 U.S.C. §841(a)(1) 2

Title 21 U.S.C. §846 2

iii

Petitioner respectfully prays that a

writ of certiorari issue to review the

judgement of the United States Court of

Appeals for the Eleventh Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeal is

reported at 678 F.2d 956 (Appendix A).

The opinion of the district court is not

reported.

JURISDICTION

The judgement of the United States

Court of Appeals for the Eleventh Circuit

was entered on June 14, 1982. A timely

petition for rehearing was denied on

August 18, 1982. The jurisdiction of this

Court is invol:ed under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution

of the United States provides in pertinent

part.

"No person shall ****be deprived of

life, liberty, or property without due

process of law****,"

STATEMENT OF THE CASE

Petitioner was found guilty by The

Honorable Richard B. Kellam, in the United

States District Court for the Middle

District of Florida, of conspiracy with

intent to distribute marijuana, in violation

of Title 21 United States Code Sections

841(a)(1) and 846. A one year sentence of

incarceration was imposed. The question

presented for review in this Petition

arises out of the United States Court of

Appeals for the Eleventh Circuit's failure

to overturn Petitioner's conviction.

Petitioner argues before this Court that

his conviction was obtained by outrageous

government conduct, violative of his right

to Due Process of Law.

In the summer of 1980 the Drug

Enforcement Administration (DEA) instituted

an undercover operation entitled “Operation

Doublecross". Approved by the United

States Department of Justice, the operation

involved the undercover sale of marijuana

by DEA agents.

Pursuant to the guidelines of Operation

Doublecross, DEA Agent Fagan contacted

Kenneth Craig and requested Robert Karley's

telephone number. The agent had met Craig

and Karley approximatley one year before

during the course of an undercover DEA

operation.

In seperate telephone calls, Agent

Fagan informed the two that he had a large

quantity of marijuana for sale. After a

series of conversations a meeting was

arranged between the agent and the two men

at a Holiday Inn in Seminole County,

Florida. The undercover agents agreed to

3

sell marijuana for $245.00 per pound. To

effectuate the transaction the agents

would receive keys to various automobiles

from Karley and Craig and then load the

cars at an unknown location. Upon the

return of the loaded cars by the

undercover agents an exchange of keys for

money would take place.

During ome of the meetings, the

undercover agents met David Wainer.

Wainer indicated that he had buyers at the

Holiday Inn, but he only wanted to

purchase a hundred pounds of marijuana.

The agents refused his offer and insisted

that they had a thousand pound limit.

After additional negotiations, Wainer

agreed to deal with the undercover agents

the following day.

The following morning the agents

loaded three vehicles with 390 pounds of

marijuana and returned them to the Holiday

4

Inn's parking lot. An exchange of keys

and money was made between the agents and

Wainer. After the vehicles left the

parking lot their occupants were arrested.

Later that same day a second

transaction was arranged in which 760

pounds of marijuana was transferred in the

same fashion. The Petitioner was arrested

while operating a car loaded with

marijuana in the second transaction.

Prior to trial the Petitioner filed a

Motion to Dismiss Indictment based on a

denial of his due process right. This

motion was denied by Judge Kellum.

The Petitioner made a timely appeal

of his conviction and the denial of his

Motion to Dismiss to the United States

Court of Appeals for the Eleventh Circuit.

The Eleventh Circuit affirmed Petitioner's

conviction on June 14, 1982. See Appendix

A.

REASONS FOR GRANTING THE WRIT

This Petition raises a substantial

and important question concerning the

permissible level of government involvement

in criminal activity. The decision of the

Court of Appeals, if allowed to stand,

will in effect create a situation where

the Government will be promoting rather

than detecting crime.

The Eleventh Circuit, in holding that

the conduct of the DEA did not constitute

a denial of the Petitioner's right of Due

Process, relied on this Court's rulings in

Hampton v. United States, 425 U.S. 484

(1976) and United States v. Russell, 411

U.S. 423 (1973). In _Hampton v. United

States, 425 U.S. 484 (1976), this Court

stated that it is not necessarily

misconduct for government agents, while

investigating criminal activity, to supply

or sell illegal drugs or provide other

6

essential services. 425 U.S. at 489.

United States v. Russell, 411 U.S. 423

(1973) recognized that the Government's

infiltration of criminal activity is a

permissible means of law enforcement. 411

U.S. at 432.

Here, the Court is present with a

factual scenerio which is divergent from

the two earlier cases. The case before

the Court is an example of the type of

conduct condemned in United States v.

Russell, 411 U.S. 432, 431-32 (1973):

While we may some day be

presented with a situation

in which the conduct of

law enforcement agents is

so outrageous that due _

cess principles would ab-

solutely bar the government

from oe judicial pro-

cess to obtain a conviction...

The conduct of the DEA can neither be

characterized as the mere infiltration of

a drug orgainization nor simply the sale

of an illegal drug. The criminal

7

activity, in this case, could not have

proceeded to fruitation as in United

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

without the aid of the Government. Agents

of the Government used their resources to

create a crime rather than to detect one

in progress. The facts before the lower

court establish that DEA undercover agents

controlled every aspect of the criminal

transaction from start to finish as in

United States v. Twigg, 588 F.2d 373 (3rd

Cir. 1978). In Twigg, a conviction was

reversed due to outrageous conduct displayed

by the Government agents.

Contrary to Hampton v. United States,

425 U.S. 484 (1976) and United States v.

Russell, 411 U.S. 423 (1973) the Petition-

er's predisposition was not a factor.

While there existed evidence to show

predisposition on the part of Karley,

Craig and Wainer to commit the crime, the

record is devoid of any predisposition on

the part of the Petitioner. At trial, the

Government did not offer proof that the

Petitioner was involved in unlawful drug

trafficking transactions with Craig, Karley

or Wainer prior to the Government's

instigation of the crime for which he was

convicted.

In Hampton v. United States, 425 U.S.

484 (1976) the defendant, a known drug

user, was convicted on the subsequent sale

of Government supplied contraband and not

for possession. The fact of the sale

indicates a criminal intent beyond that

which is required for possession and the

defendant in Hampton, admitted predisposi-

tion on his part. He acknowledged the

fact that he had solicited the drug sale

to make money. The incident was part of

ongoing criminal activity. In this case,

the Petitioner did not claim entrapment

and lack of predisposition because he did

not have contact with Government agents.

Justice Powell at 425 U.S. 495 f.n. 7

stated that the cases, if any, in which

proof of predisposition by the Government

is not dispositive will be rare, and in

this case, there is no proof of

Petitioner's predisposition by the Govern-

ment.

Considering, the egregious conduct of

the DEA in this case, it was the duty of

United States Court of Appeals for the

Eleventh Circuit to reverse the Petitioner's

conviction. Its failure to do so resulted

in a violation of the Petitioner's Due

Process rights. In order to assure that

Petitioner and all defendants in his

position are protected from the unconstitu-

tional law enforcement tactics denounced

in United States v. Russell, 411 U.S. at

10

431-432, this Court should grant certiorari

to reverse Petitioner's conviction.

CONCLUSION

For the reason set forth above, it is

respectfully submitted that this Petition

for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN STEVEN BERK

JOHN S. BERK, P.A.

Attorney for Petitioner

408 South Andrews Avenue

Suite 104

Fort Lauderdale, FL 33301

(305) 522-3307

11