Petition — Carpentier v. United States

Office - Supreme Court, U.S. |

FILED

NOV19 1982

82-861

t. STEVAS,

Ct Few

IN THE

Supreme Court of the United States

Ocroser Term, 1982

ALFRED CARPENTIER,

Petitioner,

against

UNITED STATES OF AMERICA,

Respondent.

Peririon For A Writ or CerTiorani TO THE Uirep States Court

or APPEALS FOR THE SECOND Ciacurr

PETITION FOR A WRIT OF CERTIORARI

JAMES A. PASCARELLA,

Attorney for Petitioner,

1301 Franklin Avenue,

Garden City, New York 11530

(516) 742-1134

Appellate Printing Co., inc., (212) 480-9180

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1982

No.

ALFRED CARPENTIER,

Petitioner,

—against —

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Government’s conduct in its

ABSCAM investigation violated petitioner's right to due

process of law guaranteed to him by the Constitution of

the United States.

2. Whether, if such law enforcement techniques as

those employed in the ABSCAM investigation are al-

lowed, a judicial warrant is required to be obtained by

the Government.

3. Whether the petitioner was entrapped as a mat-

ter of law.

4. Whether there was misjoinder and the petitioner

should have been severed from the trial of his co-defend-

ant.

i

ii

5. Whether, because of all the publicity received by

the ABSCAM investigation itself and the subsequent

prosecutions, there should have been an individualized,

in camera voir dire of the jury.

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all the

parties.

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ..............4.. i

Parties to the Proceeding ..............0eeeeee0: ii

PED <u van caus cécdubeehetdscdevcce iii

ED cine éuccceedeedadecccéeeks ‘iii

Opinions in the Courts Below .................: l

Grounds on Which Jurisdiction is Invoked ....... l

Constitutional Provisions and Statutes Involved ... 1

I EI Si 6 Sa, ons i aces enees 1

Reasons for the Allowance of the Writ .......... 6

DL. « ciduedaktadecdéuesuetiessssusoess 12

IDE Kddbnccedecncdcdhosedctcnccosccese la

BERD ccccccccccccccccccscceéecccocess l6a

TABLE OF AUTHORITIES

Cases Cirep:

Brown v. United States,

602 F.2d 1073 (2d Cir. 1979) .............. 8

Greene v. United States,

454 F.2d 783 (9th Cir. 1971) .............. 8

Hampton v. United States,

SN SEI nce ccc cebpeescocesies 7

Murphy v. Florida,

Se ee GUD... « wh neadmae tes owls cobs )

iv

Cases CITep: Page

Olmstead v. United States,

Rp ate 6,7

Sherman v. United States,

MEE ic Sve Vee csccctcnkes 7, 10

Sorrells v. United States,

og A See ee 7, 10

United States v. Jannotti,

501 F.2d 1183 at 1193 (E.D.Pa. 1980) ...... S

United States v. Johnson,

478 F.2d 1129 (Sth Cir. 1973) ............. ll

United States v. Kelly,

Slip Op., filed May 13, 1982, at 24 ......... 8

United States v. Meyers,

635 F.2d 932 (2d Cir. 1980) .............. 2,6

United States v. Puma,

548 F.2d 508 (5th Cir. 1977) .............. s

United States v. Reifsteck,

535 F.2d 1030 (8th Cir. 1976) ............. 8

United States v. Russell,

ee ee ae. ea dente se 6, 10

United States v. Twigg,

588 F.2d 373 (3rd Cir. 1978) ............... 8

United States v. Wilson,

500 F.2d 715 (5th Cir.),

cert. denied, 420 U.S. 977 (1974) ........... ll

STATUTES:

ee a ED ohne kde snc cecceccccdes 1

Me oe ates oda. dc ebonseeeheeps 1

Os. eecee cules 1

MISCELLANEOUS: Page

American Bar Association’s “Standards Relating

to the Administration of Justice: Free Press and

8 ee ce ee nr ee 12

William O. Douglas, Almanac of Liberty, 1954 .. 9

The petitioner, Alfred Carpentier, petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit.

OPINIONS IN THE COURTS BELOW

There were no formal opinions in the United States

District Court, Eastern District of New York, which was

the trial court. The opinion oi the Court of Appeals for

the Second Circuit affirmed the conviction of the peti-

tioner and is set forth in Appendix A.

GROUNDS ON WHICH JURISDICTION

IS INVOKED

The judgment of the Court of Appeals was handed

down on September 20, 1982 and was entered on the

same date. Jurisdiction is conferred on this Court to

review the judgment in question by 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The due process clause of the Constitution of the

United States is not set out herein. Pertinent portions of

Title 18 U.S.C. §§201(c) and 371 are set forth in Appen-

dix B, infra.

STATEMENT OF THE CASE

This is an ABSCAM case. The petitioner, Alfred

Carpentier, a businessman and a beefalo cattle farmer,

charged in a three count indictment, was convicted of

l

2

charges relating to conflict of interest and conspiracy to

commit bribery and was acquitted on a charge relating

to the substantive crime of bribery after a jury trial. He

was sentenced to a term of imprisonment of four years

and a fine of $5,000.00 on the conspiracy count and to a

term of imprisonment of two years, which term was

suspended, and an additional fine of $5,000.00 on the

conflict of interest count. Execution of sentence was

stayed pending the appeal. The Court of Appeals for the

Second Circuit affirmed the conviction.

Some time early in 1978, the United States Depart-

ment of Justice set into operation what has become

known as the “ABSCAM” investigation. The chief under-

cover operative for the Government was one Melvin

Weinberg, a lifelong and convicted “con” man.' The

original purpose of ABSCAM was to recover stolen paint-

ings and certificates of deposit. It evolved, its scope ex-

panding to include investigation of organized crime in

Atlantic City, and, eventually, to ensnare corruptible

politicians. The Government was now in the business of

manufacturing crime; Weinberg, using the lure of hun-

dreds of millions of dollars of Arab oil money, sought to

entice various individuals to cross over the line from the

legitimate to the illegal.

In the course of the operation of the ABSCAM

scheme of things, Weinberg had promised to the peti-

tioner, Alfred Carpentier, at one point, a $40,000,000.00

commission; he also continually led the petitioner on

coined by Melvin Weinberg and

Eastern business owned by two fictitious, wealthy Arab

operation,

PCE NS . OCG any ae Ce

confidence game or swindle. See, U: States v. Meyers, 635 F.2d

932 (2d Cir. 1980).

3

with the false promise that the Arabs would buy his

farm, for which petitioner had been asking a purchase

price of $1,500,000.00, for $5,000,000.00.

Weinberg had relatively free reign and was unsu-

pervised at least half of the time he was engaged in

ABSCAM. In his own words, he “played by ear” much of

the time. He even made decisions when to record conver-

sations and meetings with individuals who later became

ABSCAM defendants. In many instances, the FBI had to

rely on Weinberg’s representation as to what occurred, if

he, indeed, chose to tell them at all about conversations

and meetings he did not record.

in December of 1978, petitioner and his then busi-

ness attorney were introduced to Melvin Weinberg by a

New York bank executive. Carpentier presented a num-

ber of legitimate business deals to Weinberg for the in-

vestment of Arab money. These deals were put aside and

left open by Weinberg who suggested to the petitioner

that the Arabs would be more interested in deals that

were not quite so legitimate.

In May of 1979, petitioner introduced a United

States customs officer to Weinberg and undercover FBI

agents to aid one of the “sheiks” with an immigration

problem. While there were conversations in which the

petitioner participated which involved the possibility of

the immigration agent, Carpentier, Weinberg and an-

other individual being paid for the agent rendering serv-

ices to the sheik, the petitioner was led to believe, even-

tually, by Weinberg, FBI agents and the immigration

agent that no service in this regard would actually be

rendered by the immigration official in behalf of the

sheik. A corrupt scheme was, in fact, finally developed

by the immigration official, Weinberg and an under-

cover FBI agent to bring an Irish national, as a favor to

one of the sheiks, into this country. The immigration

4

official was to receive payment for rendering such a

service, and partial payment was made to him. It is clear

petitioner Carpentier knew nothing of this corrupt

scheme and received no payment in this regard.”

Prior to commencement of trial and three times

during tle course of the trial, the petitioner moved for a

severance from his co-defendant (the immigration offi-

cial) on the basis of the fact that the co-defendant’s

defense was antagonistic to the petitioner. Prejudicial

joinder and misjoinder were claimed. The co-defendant’s

defense was basically that he had no criminal intent, he

was merely investigating the “investigators” and peti-

tioner, Alfred Carpentier. The co-defendant’s defense

implied accusations of Carpentier and, when this co-

defendant testified on his own behalf, he made actual

and specific accusations of corrupt and illegal activities

of the petitioner. The trial court denied the motions each

time they were made.

Previous to trial, a motion to dismiss the indict-

ment, based on pretrial publicity, was made on behalf of

the co-defendant and joined in by the petitioner. It was

not so much that there was unfavorable publicity di-

rectly involving the petitioner; the more important as-

pect of the publicity related to the “leaks” of the

ABSCAM investigation to the media from within the

Department of Justice and the wide-spread coverage of

2. The opinion of the Court of Appeals in its statement of facts

dees The facts addressed by the

relating to the corrupt scheme deal only with the immigration

official; in readiag the opinion, one wrongly assume Carpen-

tier was aware of the scheme also. The (apt peo

5

the whole ABSCAM episode. This tended to taint anyone

who was charged as a result of the ABSCAM investiga-

tion.

Prior to commencement of trial and three times

during the course of the trial, the petitioner moved for a

severance from his co-defendant (the immigration offi-

cial) on the basis of the fact that the co-defendant's

defense was antagonistic to the petitioner. Prejudicial

joinder and misjoinder were claimed. The co-defendant's

defense was basically that he had no criminal intent, he

was merely investigating the “investigators” and peti-

tioner, Alfred Carpentier. The co-defendant’s defense

implied accusations of Carpentier and, when this co-

defendant testified on his own behalf, he made actual

and specific accusations of corrupt and illegal activities

of the petitioner. The trial court denied the motions each

time they were made.

Previous to trial, a motion to dismiss the indict-

ment, based on pretrial publicity, was made on behalf of

the co-defendant and joined in by the petitioner. It was

not so much that there was unfavorable publicity di-

rectly involving the petitioner; the more important as-

pect of the publicity related to the “leaks” of the

ABSCAM investigation to the media from within the

Department of Justice and the wide-spread coverage of

the whole ABSCAM episode. This tended to taint anyone

who was charged as a result of the ABSCAM investiga-

tion.

On appeal from the judgment of the trial court, the

court of appeals affirmed petitioner's convictions on the

two counts stated above. The court held that the facts in

petitioner's case fell “far short of indicating conduct that

would violate [his] rights pursuant to the due process

clause” and that the ABSCAM operation, in this case,

did not rise to the level of outrageous overinvolvement

that could bar a criminal conviction (App. A, lla, 12a).

6

The appeals court also held that having failed to raise the

defense of entrapment below, petitioner was precluded

from raising it on appeal and that, at any rate, the

record indicated petitioner was predisposed to commit

the crimes with which he was charged (App. A, 12a-

13a). That court also found that the district court judge

did not abuse his discretion in denying petitioner's mo-

tions to sever and in the manner in which the judge

conducted jury selection in the case.

REASONS FOR THE ALLOWANCE OF THE WRIT

The writ should be allowed in this case because the

Court of Appeals for the Second Circuit has rendered a

decision which is in conflict with decisions of other fed-

eral courts, including decisions of the Court of Appeals

for the Third Circuit. Further, the Court of Appeals for

the Second Circuit has decided certain important ques-

tions of federal law which have not been, but should be,

settled by this Court.

1. The entire ABSCAM operation presents serious

and sensitive public policy issues. United States v. Mey-

ers, supra, at 934. As was snecifically pointed out by the

court of appeals in the petitioner's case, his “attack on

the investigative procedures employed in ABSCAM raises

substantial questions about the proper role of law en-

forcement in our society.” (App. A, 15a). This Court has

indicated on various occasions that those investigative

procedures may at times become so intrusive as to violate

an individual's due process rights, irrespective of the

person’s guilt or innocence and without regard to his

predisposition to commit the offense with which he is

charged. United States v. Russell, 411 U.S. 423; Olm-

stead v. United States, 227 U.S. 438.

Governmental manufacture of crime is fundamen-

tally at odds with established principles of fair play and

7

due process. Police overinvolvement in the creation of

crime in the ABSCAM operation encroached on the

rights of all the individuals charged as a result of that

covert operation. As Justice Brandeis stated:

“In a government of laws, existence of the govern-

ment will be imperiled if it fails to observe the laws

scrupulously. Our government is the potent, the om-

nipresent teacher. For good or for ill, it teaches the

whole people by its example. Crime is contagious. If

the government becomes a lawbreaker, it breeds

contempt for law; and invites every man to become

a law unto himself; it invites anarchy. To declare in

the administration of the criminal law the end justi-

fies the means—to declare that the government may

commit crimes in order to secure the conviction of a

private criminal—would bring terrible retribution.

Against that pernicious doctrine this Court should

resolutely set its face. Olmstead v. United States,

supra, at 484-85.

The function of law enforcement is the prevention of

crime and the apprehension of criminals. That function

should not include the manufacturing of crime. Sherman

v. United States, 356 U.S. 369 (1958); Sorrells v. United

States, 287 U.S. 435 (1932).

While this Court has said, by plurality opinion, that

police overinvolvement should not necessarily be a bar to

conviction where the defendant was predisposed to com-

mit the crime charged, specific standards to be applied to

enable one to determine when such overinvolvement

should serve as a bar or reach “a demonstrable level of

outrageousness” were not enumerated. Hampton v.

United States, 425 U.S. 484 (1976). The case at bar, and

all the so-called ABSCAM cases, presents an opportunity

to this Court to set such standards.

8

The Court of Appeals for the Third Circuit has held

that where the Government's tactics reach a level of

being creative rather than reactive in nature, where the

criminal activity was initiated by the Government and

no criminal enterprise had previously existed, conviction

should be barred. United States v. Twigg, 588 F.2d 373

(3rd Cir. 1978). Support for this reasoning may be found

in other circuits. United States v. Puma, 548 F.2d 508

(5th Cir. 1977); United States v. Reifsteck, 535 F.2d

1030 (8th Cir. 1976); Greene v. United States, 454 F.2d

783 (9th Cir. 1971).

The indictment and conviction obtained in petition-

er’s case, as in the other ABSCAM cases, was the product

of instigation by the Government. Under the fundamen-

tal fairness and totality of circumstances approach, the

ABSCAM operation exceeded the police power of the

federal Government. The line between lawful subterfuge

and excessive governmental involvement has been

crossed in this case and all the ABSCAM prosecutions, in

violation of the due process clause of the Constitution.

As Judge Bryant has stated:

“Governmental manufacture of crime . . . is as odi-

ous, and as prejudicial to a target’s rights, as is the

governmental snaring of the ‘unwary innocent’

which we term entrapment.” United States v.

Richard Kelly, Slip Op., filed May 13, 1982 at 24.

This is particularly true where the use of the pri-

mary operative, the informant (Melvin Weinberg) was,

to a good extent, uncontrolled, or, at least, lacking in

adequate controls. Such use of someone like Weinberg

tends to corrupt the truth-seeking process. Brown v.

United States, 602 F.2d 1073 (2d Cir. 1979). Judge Ful-

lam found that Weinberg “represented the archetypical,

amoral, fast-buck artist.” United States v. Jannotti, 501

F.2d 1183 at 1193 (E.D.Pa. 1980). It is submitted that

9

the conduct of Weinberg in the context of this and all the

ABSCAM cases produced a substantial danger of unreli-

ability and was fundamentally unfair resulting in a

breach of the due process rights of all the individual

“targets.”

The flow of publicity and the Government's con-

duct in this regard also violated the due process rights of

the petitioner and others. The publicity in the ABSCAM

cases was largely Government-inspired. This has been

determined by the investigation of publicity leaks con-

ducted by the Department of Justice. The Blumenthal

Report concluded that the leaks were of a scope and

magnitude unprecedented in Department of Justice his-

tory. Prosecution-inspired publicity is an abuse of the

judicial system and must be held to close scrutiny by the

courts. The spate of adverse publicity “poisoned the

well” for ABSCAM targets and defendants, petitioner

included. This publicity may well have prejudiced soci-

ety in general (and jurors in particular) against anyone

charged with an ABSCAM-based crime. A specific show-

ing of prejudice is not necessary where there is a reason-

able possibility of prejudice or prejudice can be assumed

by the totality of the circumstances. Murphy v. Florida,

421 U.S. 794 (1975).

As Justice William O. Douglas has said, “The great-

est battles for liberty have, indeed, been fought over the

procedure which police and prosecutors may use.” Wil-

liam O. Douglas, Almanac of Liberty, 1954. The

ABSCAM investigations may be the greatest battlefield

of all; the procedures employed by law enforcement on

that battlefield warrant review of this Court.

2. The ABSCAM operation has dramatized a cru-

cial question about all undercover police activities. Why

are they not subject to a judicial warrant so that there

can be some monitoring by an impartial magistrate or

judge? The intrusion of an undercover agent is much

10

more extensive than an ordinary search. It can be contin-

uous, long-term and unlimited. The undercover agent is

a human version of an electronic eavesdropping device.

Before such an electronic device is used, a warrant is

required; the placement of an undercover agent into an

individual's private life should also require such a war-

rant. Indeed, the undercover agent, set into place with-

out a warrant and in the absence of evidence that a

particular crime has been or is about to be committed, is

an intrusive, general search.

3. Entrapment occurs when a person not otherwise

predisposed to commit a criminal act is induced by Gov-

ernment agents to commit such an act. Sorrells v. United

States, supra. Indicia of inducement include persuasion

of an individual to participate in the commission of a

criminal act, Sherman v. United States, supra, at 373;

providing the instrumentalities for the commission of the

crime, United States v. Russell, supra, at 431; and the

creation and instigation of the crime, Sorrells v. United

States, supra, at 440-441. Further, evidence at trial

showed that petitioner was not aware of the particular

corrupt scheme devised by the co-defendant and the

Government operatives. More important, however, is

the fact of the overall atmosphere created by the

ABSCAM operation which, with particular reference to

the petitioner, included using the inducement of a

$40,000,000 commission and the purchase of petitioner's

farm at a price of more than three times the value of the

farm.

Melvin Weinberg, the chief Government operative,

encouraged various persons to present illegitimate deals

to him. Persons, like the petitioner, induced by vast sums

of money, eventually discussed such deals with Weinberg

and became “targets” of ABSCAM. Evidence of the in-

ducements put before the petitioner by the Government

were brought out in both the Government's case and the

11

petitioner's defense case. Once such inducement was es-

tablished prima facie, the burden should then have been

upon the prosecution to prove that the petitioner was

ready and willing, without persuasion, to engage in

criminal conduct. The prosecution, at trial of petitioner's

case, did not prove the requisite propensity of the peti-

tioner. It is maintained that the Government was bound

to do this even in light of the fact that the petitioner did

not raise the specific defense of entrapment. Failure to

establish this propensity of the petitioner is sufficient to

bar his conviction.

4. Prior to the commencement of trial and on three

occasions during the course of the trial, petitioner moved

for severance from his co-defendant based on misjoinder

of defendants. The joinder of the defendants in one trial

was unduly prejudicial because petitioner’s co-defend-

ant’s defense was totally antagonistic to the defense and

interests of the petitioner. In the already sensitized atmo-

sphere of an ABSCAM prosecution, such a claim takes on

even greater significance.

It was an abuse of discretion of the trial court to

refuse to grant the motion for severance when it was

clear that the theory of the co-defendant’s defense was in

direct conflict with petitioner’s defense. A major premise

of petitioner’s co-defendant’s defense was that he was

investigating the petitioner; such a defense created a

danger that the jury would unjustifiably infer that this

conflict alone demonstrated that both defendants were

guilty. In short, it created a situation where the jury was

more likely to find guilt on the part of the petitioner

Carpentier. A separate trial of the petitioner would have

better secured a fair trial. See generally, United States v.

Wilson, 500 F.2d 715 (5th Cir.), cert. denied, 420 U.S.

977 (1974); United States v. Johnson, 478 F.2d 1129 (5th

Cir. 1973).

12

5. As set forth above, the publicity in this case was

extraordinary. Under the circumstances, there should

have been a liberal use of individualized in camera voir

dire in this case and all the ABSCAM cases. Such a view

is expressed in the American Bar Association’s “Standards

Relating to the Administration of Justice: Free Press and

Fair Trial.”

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: November 15, 1982

Respectfully submitted,

JAMES A. PASCARELLA,

Attorney for Petitioner,

1301 Franklin Avenue,

Garden City, New York 11530

(516) 742-1134