Petition — Fields v. United States

Supreme Court. of the United States

OctToser Term, 1982

ANTHONY R. FIELDS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN M. CUTRONE

180 North LaSalle Street

Chicago, Illinois 60601

(312) 236-8121

a

Counsel for Petitioner

y™

— -

wD —

i.

QUESTIONS PRESENTED

Whether petitioner was entrapped as a

matter of law?

Whether petitioner's acquittal of the

first of a series of four transactions pre-

cludes his conviction on the last three?

Whether the district court's failure to

clarify the time to be looked to in deter-

mining predisposition, especially after the

jury's request, was error?

Whether the sentence given petitioner

who went to trial either was or appeared to

be a penalty for his election to proceed to

trial, such as to have a chilling effect on

the exercise of constitutional rights?

a

ii.

TABLE OF CONTENTS

Page

Questions presented ...seccecseseee 1

Table of Contents ..ccseecevseseecil

Table of Authorities ....+eseeeeeeeLil

Opinion Below .ccwccccesessseseses 2

JUPISGICTION ccceecccesesseseseses 2

Constitutional Provisions

and Statutes esenreeeeeeneeeeneee 3

Statement of the Case ..ceeeeeseee 3

Argument nd rétaee Che Bh betee 6bhaekn

Conclusion checcceubesecoeesooosseanr

iii.

TABLE OF AUTHORITIES

Bollenbach v. United States,

326 U.S. 607 PRs 6604 ss Gans temas 20

Dunn v. United States,

284 U.S. 390 Pn? « chbe ctkn ke 23

Harris v. Rivera, U.S.

(No. 81-17, Dec. 14, 1981) eee 23

Lopez v. United States

S79 G.8. S27. CARES) 0... codscccee a8

Masciale v. United States,

356 U.S. 386 (1958) eeeeeeeeeee 13

North Carolina v. Pearce,

395 U.S. 711 (1969) eeeeeeee eee 26

Sherman v. United States,

356 U.S. 369 (1958) .......- 16,18

Sorrelis v. United States,

287 U.S. 435 (1932) eeeeeeeeeee 17

United States v. Anderton,

629 F.2d 1044 (5th Cir., 1980). 22

United States v. Duff,

555 F.2d 187 (7th Cir., 1977)... 14

United States v. Rech,

589 F.2d 1025 (10th Cir., 1978) 24

iv.

United States v. Russell,

411 U.S. 423 (1973) eeeee eee eee 14

United States v. Silver,

457 F.2d 1217 (3d Cir., 1980)... 22

United States v. Stockwell,

472 F.2d 1186 (9th Cir., 1973). 26

United States v. West,

511 F.2d 1083 (3d Cir., 1975)... 19

SUPREME COURT oF THE UNITED STATES

OCTOBER TERM, 1982

ANTHONY R. FIELDS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

I.

ANTHONY R. FIELDS (hereinafter Peti-

tioner), petitions for a writ of certiorari

to review the judgment of the United States

‘ Court of Appeals for the Seventh Circuit

affirming his convictions in the instant

case for knowingly acquiring and possessing

food stamp coupons in a manner not author-

ized by law.

on

‘a!

wt

a *

Il.

OPINION BELOW

The opinion of the United States Court

of Appeals for the Seventh Circuit, F.2d

___.» is as of yet still unreported. It is

reproduced as Appendix A to this petition.

Ill.

JURISDICTION

The judgment of the Court of Appeals

for the Seventh Circuit was entered on

September 14, 1982. This petition is timely

filed under Supreme Court Rule 20.1.

This Court's jurisdiction is invoked

under 28 U.S.C. 1254(1).

ib.

Iv.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution, Amendment V

United States Constitution, Amendment VI.

18 U.S.C. 2 & 846

7 U.S.C. 2024 (b)

The constitutional and statutory

provisions are reproduced as Appendix B.

STATEMENT OF THE CASE

In May of 1981, Petitioner was charged

in a five-count indictment with conspiracy

to violate 7 U.S.C. 2024(b) and four

substantive violations of 7 U.S.C. 2024 (hb)

(unauthorized acquisition or possession of

food stamp coupons), the four substantive

counts occurring on February 18, 1981,

February 26, 1981, March 26, 1981, and April

24, 1981. A co-defendant, Eugene Carter,

pleaded guilty and was sentenced to 90 days

incarceration. Upon the government's

motion, the conspiracy count was dismissed.

3

re

The case proceeded to trial before the

Honorable James E. Noland sitting with a

jury. The defense was one of entrapment as

to all four remaining counts. The jury

returned a verdict of not guilty with

respect to the first transaction (February

18, 1981) but returned guilty verdicts as to

the later three transactions (February 26,

1981, March 26, 1981, and April 24, 1981).

Upon the three verdicts of guilty petitioner

was sentenced to two concurrent terms of

three years imprisonment, and imposition of

sentence on the remaining count was

suspended, the petitioner being placed on

probation for a period of five years to

commence upon petitioner's release from

prison.

Timely appeal was taken to the United

States Court of Appeals for the Seventh Cir-

cuit, jurisdiction being invoked under

28 U.S.C. Sec. 1291. The Court of Appeals by

4

opinion filed September 14, 1982, affirmed

the judgment of conviction and sentence. By

appropriate orders, the mandate of the Court

of Appeals was stayed pending this petition

and petitioner has remained enlarged on

bail.

As far as is relevant to this petition,

the evidence developed at trial involves

Ernest Stanford and Rebyn Stewart, govern-

ment agents; William Allen, a government

informant who was “working off" a pending

charge, Eugene Carter, the co-defendant and

Anthony Fields, petitioner.

The agents testified that the govern-

ment devised a scheme to sell food ston:

coupons at a cut-rate price. (R.Vol.II,

pp. 238, 253) By implementation of this

scheme, the agents made the initial approach

to petitioner on each of four occasions,

induced him to acquire and possess the food

5

a a

Pa

stamp coupons and then arrested him for

acquiring and possessing the food stamp

coupons.

The agents were involved in an investi-

gation absolutely unrelated to petitioner

when the agents through the informant Allen

were introduced to the co-defendant Carter,

a trafficker in weapons and narcotics.

Carter indicated that he "might" know some-

one who would be interested in buying food

stamp coupons. The agents, the informer and

Carter drove to D & P Variety Store, peti-

tioner's place of business. Carter went

into the store while the others waited

outside.

(Prior to this first meeting with peti-

tioner on February 18, 1981, according to

the agents, they had no information at all

about petitioner, and most certainly, no

information that he was involved in illicit

dealings in food stamps. The agents on this

occasion, however, and each of the following

ones, initiated the contact. Never did

petitioner call the agents to initiate a

transaction. Once, coming to petitioner's

store and finding that he was not present,

the agents even called around to find him to

have him come to the store. Admittedly

toward the end of the first transaction

petitioner expressed a willingness to make

future purchases and gave the agents tele-

phone numbers where he could be reached for

that purpose. )

When petitioner came outside, the

agents asked if he was interested in dealing

in food stamps. Petitioner, according to

the agents, expressed a willingness to talk

about the idea. The agents then gave peti-

tioner their "pitch." On this date and on

the following dates, according to the

agents’ testimony, petitioner said that he

did not want to buy stamps that were "hot"

7

or stolen. (R.Vol.II, pp.254-56, 343-44.)

Petitioner said that he did not want to get

into trouble or be arrested. (R.Vol.II,

p.-229) On each date the agents calmed his

fears. (R.Vol.II, pp. 343-4) The agents

informed petitioner that Agent Stewart

worked in a food stamp office and got the

stamps before they were sent out. (R.Vol.II,

p.250) Agent Stewart testified that

petitioner, a black merchant in a poor black

area, was led to believe that he had hit

upon a bonanza, a get-rich-quick plan; that

petitioner could safely make a lot of money

because the stamps were "clean" (not

stolen?) (R.Vol.II, pp. 230-31) Agent

Stanford testified that he told petitioner

the stamps were good, that there was no way

they would give him stamps that were bad or

give him a "raw deal." (R.Vol.II, p.250)

According to the agents, on two of the

later dates, February 26, 1981 and April 24,

1981, in efforts to overcome petitioner's

reluctance, they threatened to take their

business elsewhere (R.Vol.II, p.211) and

prompted him to make a hurried decision,

telling him they were in a hurry and that if

he wanted to buy the stamps he would have to

do so right then. (R.Vol.II, p.223)

On the date of the last transaction the

agents had brought a much larger amount of

stamps than on previous occasions, but peti-

tioner did not have the full amount of cash,

and in perhaps a telling statement, the

agent added that petitioner therefore could

not "do the amount of stamps that we wanted

him to do." (R.Vol.II, pp. 247-48) Peti-

tioner was arrested at the conclusion of the

fourth transaction.

In short, the agents, according to

their own testimony, pursuant to a

government formulated plan, made the initial

contact with petitioner, about whom they had

no information that he was dealing in

illicit food stamps, and by representations

leading him to believe he could make large

amounts of money, and at the same time

overcoming his hesitance by assuring him

that the stamps were not "hot" and that he

could not get into trouble by purchasing

them, induced him to acquire and possess the

stamps so that they could arrest him for

doing so.

At the conclusion of the evidence the

district court, after refusing defense

instructions relative to entrapment and pre-

disposition, gave certain pattern jury

instructions of the Seventh Circuit Court of

Appeals on the entrapment defense. The jury

during its deliberations sent out a note

requesting a legal dictionary. Later, at

10

- ea

a

approximately midnight, after 13 hours of

deliberation, the jury sent out a note

requesting clarification of the operative

time period on the question of predis-

position, "Does prior intent or predis-

position mean prior to the proposal or prior

to the offense?" The district court during

a telephone conference call with’ the

attorneys, not in the presence of the peti-

tioner, decided to refer the jurors to the

previously given instructions.

The jury acquitted petitioner of the

first transaction, even though petitioner,

having taken the witness stand to support

his entrapment defense, admitted to having

acquired and possessed the stamps on that

date. The jury, however, returned verdicts

of guilty as to the later transactions.

11

At the sentencing hearing it was devel-

oped that the government had made a pretrial

offer to petitioner and to the co-defendant

that upon pleas of guilty the government

would recommend 90 days imprisonment.

Carter entered a guilty plea, the government

made its recommendation of 90 days, and the

district court accepted that recommendation

in imposing sentence on Carter. Petitioner,

who exercised his right to trial, was sen-

tenced to two concurrent terms of three

years imprisonment to be followed by a

period of five years probation.

12

V.

ARGUMENT

REASONS FOR GRANTING PETITION

l. This cause presents significant

questions relative to entrapment, a subject

upon which not only the various Circuits of

the Courts of Appeals but even this Court

has been "sharply divided." (Lopez v.

United States, 373 U.S. 427, 434 (1963).)

No decision of this Ccurt has dealt with a

Situation where as here the government fur-

nishes the sine qua non of an offense to one

who was not previously and actually engaged

in the commission of that offense. The case

also presents a question of the moment in

time at which the question of predisposition

must be determined, the decision below

appearing to be in conflict on this point

with earlier decisions of this Court, and of

another Circuit. Important and recurring

13

questions would be resolved were this Court

to grant this petition.

Many cases have dealt with a defense

claim that the government supplied to the

accuseG the subject matter of the convic-

tion. These claims are usually presented in

one of two ways. In the first, the defense

claims that because the defense testimony is

that the material, usually narcotics, came

from the government and such testimony is

unrebutted, entrapment has been established

as a matter of law. Generally the cases

hold that the question is one for the jury

despite the lack of rebuttal evidence.

(Eg. Masciale v. United States, 356 U.S. 386

(1958).) In the other type of case the

defense claims entitlement to an instruction

requiring acquittal upon a finding that the

government supplied the contraband, regard-

less of the defendant's predisposition to

commit the particular offense. Generally

14

the cases hold no error in refusing such an

instruction. (Eg. United States v. Duff,

551 F.2d 187 (7th Cir., 1977).)

But few are the cases such as_ the

instant case where both the government and

the defense agree ‘hat the material, the

possession of which is prohibited, came from

the government. In these cases the question

of entrapment presents itself most clearly.

Even in these cases, this Court has

held that the defense of entrapment will not

be available to one who is already engaged

in the commission of the offense at the time

the government first approaches him, despite

the fact that the government later supplies

him with the contraband or its necessary

ingredients. Thus, in United States v.

Russell, 411 U.S. 423 (1973) the defendant's

admission and other evidence of his previous

manufacturing of methamphetamines as well as

his concession of predisposition rendered

15

Pr:

the entrapment defense unavailable to him.

We hope that by the foregoing discus-

sion we have clarified the type of case

presented here. We deal with one who was

prosecuted for possessing that which was put

into his hands by the government; one wh

did not first approach the government

agents, but who was first approached by them

with a plan of government design; one who

was shown even then not to have committed

the offense until the government overcame

his expressed reluctance with represen-

tations of easily made gains and assurances

that he could not get into trouble; one who

was not shown to have previously committed

the offense, and one who does not concede

predisposition. Under any test of entrap-

ment, or of a due process notion of ouf-

rageous government conduct in instigating an

offense, this conviction should not stand.

16

Sherman v. United States, 356 U.S. 369

(1958) made clear that "ready complaisance”

(we suggest, not present here) and even

proof of prior convictions for the same

offense (again not present here) are not

sufficient to establish predisposition where

the defendant is not currently involved in

the commission of the same type of offense,

or in “the trade” as this Court put it.

(356 U.S. at 375) The Court of Appeals

below, by restating the same evidentiary

facts in several different ways, found

“ample evidence" of predisposition in almost

solely the fact that petitioner committed

the offense. Certainly a defendant must

admit to the commission of the offense in

order to claim entrapment in the first in-

stance , but that does not rule out entrap-

ment where there is no showing that he was

in "the trade.”

17

Of this Court's decisions, perhaps the

most similar to the instant case regarding

predisposition is Sorrells v. United States,

287 U.S. 435 (1932), the seminal case on

entrapment. There the agent, on the first

date he met Sorrells, asked Sorrells to ob-

tain some whiskey for him; after two refus-

als and some war-time reminiscences,

Sorrells agreed, and left. After but a few

minutes he returned with the whiskey.

Despite that it was wae first meeting of

agent and defendant, duspite the number of

refusals being only two, despite the fact

that it only took but a few minutes for

Sorrells to obtain the whiskey, giving rise

to an inference of a readily known source,

and despite even testimony that Sorrells had

the reputation of a "rum-runner," this Court

reversed the conviction, finding Sorrells to

be an otherwise innocent person whom the

government was seeking to punish for an

18

offense the product of its own creative

activity. (287 U.S. at 451) This is a most

fitting description of petitioner.

2. Apparently, the jury agreed with

this description to some extent, since in

the face of the government's evidence and

the petitioner's own admissions that he had

purchased the stamps, the jury acquitted

petitioner of the first transaction.

Clearly, on this state of the record the

acquittal involved a finding of entrapment.

The Court of Appeals below in addres-

sing this contention stated that a finding

of entrapment on the first transaction does

not taint the convictions on the later

transactions. Most respectfully it is sug-

gested that this statement is directly

contrary to this Court's holding in Sherman

v. United States, 356 U.S. 369, 374, (1958):

19

Sy

aad

It; makes no difference that the

sales for which petitioner was

convicted occurred after a

series of sales. They vere not

independent acts subsequent to

the inducement but part of a

course of conduct which was the

product of the inducement.

(See also: United States v. West, 511 F.2d

1083, 1086 (3d Cir., 1975).)

3. The Court below, in further refuta-

tion of this argument suggested that the

matter was one of inconsistency between

verdicts which is not held to require rever-

sal of a conviction. Were it not for an

obvious problem with the district court's

instructions, we might be constrained to

agree.

Petitioner had offered an instruction

relative to predisposition specifying that

predisposition means a previous or prior

inclination or tendency to do an act. (See:

Appendix C) The district court refused the

instruction in favor of pattern instructions

promulgated by the Seventh Circuit Court of

Appeals (See: Appendix C) which did not

specify when in respect to the transactions

the question of predisposition was to be

determined.

Near midnight, after approximately 13

hours of continuous deliberation and after

having first requested a legal dictionary,

the jury sent out a note asking, "Does prior

intent or predisposition mean prior to the

proposal or prior to the offense?" The

district court in reply referred the jury

again to the previously given instructions.

Petitioner argued below and argues here

that such response was error, and fell with-

in this Court's holding in Bollenbach v.

United States, 326 U.S. 607, 612-13 (1945):

21

7%

An experienced trial judge should

have realized that such a long

wrangle in the jury room as

occurred in this case would leave

the jury in a state of frayed

nerves and fatigued attention,

with the desire to go home and

escape overnight detention,

particularly in view of a plain

hint from the judge that a verdict

ought to be forthcoming. The jury

was obviously in doubt as to

Bollenbach's participation in the

theft of the securities in

Minneapolis and their transpor-

tation to New York. The jury's

questions...clearly indicated that

the jurors were confused... Dis-

charge of the jury's responsibility

for drawing appropriate conclusions

voy

from the testimony depend on

discharge of the judge's

responsibility to give the jury

the required guidance by a lucid

statement of the relevant legal

criteria. When a jury makes

explicit its difficulties, a

trial judge should clear them

away with concrete accuracy... A

conviction ought not to rest on

an equivocal direction to the

jury on a basic issue.

(See also: United States v. Silver,

457 F.2d 1217 (3d Cir., 1980) and United

States v. Anderton, 629 F.2d 1044 (5th Cir.,

1980), both of which are entrapment cases,

the latter making particular reference to

the need for clarifying instructions as to

terms of legal significance where the jury

has made known its difficulty.)

23

Because of this apparent confusion on

the issue of when, in relation to the trans-

actions, predisposition is to be determined,

those cases upholding inconsistent verdicts

are not applicable. Dunn v. United States,

284 U.S. 390 (1931) was based upon the

jury's historic power of lenity. That this

was the basis for the decision was reaf-

firmed by this Court as late as last year in

Harris v. Rivera, U.S. , No. 81-17,

December 14, 1981). Here we deal not with

jury lenity, but jury confusion on a basic

issue and cases on inconsistent verdicts

have no application.

The Court of Appeals also on the issue

of clarifying instructions sua sponte raised

the issue of waiver, even though the issue

was never briefed by either side. The deci-

sion below stressed that trial counsel for

petitioner had agreed to the district

court's response. This agreement was

24

reached during a conference telephone call

among the trial judge and respective

counsel. Petitioner was not present, nor

had he personally waived the right to be

present. Significant questions as to the

validity of any waiver by petitioner's trial

counsel outside his presence should not have

been decided without the opportunity for

complete briefing. (See: United States v.

Rich, 589 F.2d 1025 (10th Cir., 1978),

holding that a defendant's trial counsel may

not waive his client's constitutional rights

in ex parte meetings with the trial judge.)

4. Petitioner, and his co-defendant

Carter, both received prior to trial offers

from the government that in return for a

plea, the government would recommend a

sentence of 90 days. The district court did

accept that recommendation with respect to

the sentence of 90 days imposed on Carter

upon his plea. Petitioner, who elected to

exercise his right to trial however, re-

ceived sentences of three years imprisonment

to be followed by five years probation.

The Court of Appeals, in affirming the

sentence, stated that petitioner produced no

evidence apart from the disparity of sen-

tences to support a claim or even raise the

inference that the heavier sentence was a

penalty for pleading not guilty. (See

Appendix A, p-.1l)

Despite this view of the court below,

there is evidence to support such an infer-

ence. Both defendants were made the same

offer by the government. As to the co-

defendant the district court found the

sentence recommendations appropriate.

Certainly, the inference is plain that the

district court would have imposed the same

sentence with respect to petitioner.

Whether or not the sentence was a

penalty for going to trial, the record

leaves unrebutted such an inference. In an

analagous situation, in United States v.

St ll, 472 F.2d 1186 (9th Cir., 1973)

the Court held that the mere appearance of

such a practice would have a chilling effect

upon constitutional rights. The Court held

that the record must affirmatively show that

the heavier sentence was based solely on the

facts of the case and the defendant's per-

sonal history and not as punishment for his

refusal to plead guilty. (er. North

Carolina v. Pearce, 395 U.S. 711 (1969).

27

VII.

CONCLUSION

Petitioner, Anthony R. Fields, respect-

fully urges that his Petition for Writ of

Certiorari be granted.

Respectfully submitted,

JOHN M. CUTRONE

180 North LaSalle Street

Chicago, Illinois 60601

(312) 236-8121

Counsel for Petitioner

November, 1982

28