Petition — Everett v. United States

S

Be-1171) YES

a? JANIS 1993

IN THE ALEXANDER L. STEVAS :

Supreme Court of the Unkted States

October Term, 1982

GARRISON M. EVERETT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

BRUCE I. HOCHMAN,

7th Floor, West Tower,

9100 Wilshire Boulevard,

Beverly Hills, Calif. 90212,

(213) 273-1181,

Counsel for the Petitioner.

STEPHEN V. WILSON,

MARTIN N. GELFAND,

7th Floor, West Tower,

9100 Wilshire Boulevard,

Beverly Hills, Calif. 90212,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented.

1. Whether legal impossibility is a defense to the crime

of conspiracy.

2. Whether legal impossibility is a defense to the crime

of conspiracy to impair, impede, and obstruct the Depart-

ment of the Treasury in the ‘‘collection of tax revenue’’

where the government designed and participated in a

‘*sting’’ operation utilizing a fictitious taxpayer who under

no circumstance could ever be obligated to file a tax return

and/or pay taxes.

TABLE OF CONTENTS

Page

CIE PUMNOMIOE ccccccccccsenscccostscscccccssccccecesees i

OMEMIOD BOIOW ...cccrcccccsccccccncccccscscsccscsccosseseees l

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EE Scho ussavccntdversenccvcscccacscccocccvecsecee 2

IVC ii ea Gab daadabenccsdscecsdscccccevesscacseece 2

Reasons for Granting the Writ .............cccececeeeeen ens 4

A. Legal Impossibility as a Defense to

PIED cccnceiccswscacnccssececcessescsesecsscees 4

B. Standards for Establishing Legal Impossi-

EU eLasyiahaddveaniedeseetheitdssdubodussesesceese 5

Acts ai eibeeuesuaissistsasshidacecaseceosssces 6

Appendix. Opinion of the United States Court of

Appeals, for the Ninth Circuit ............... App. p.

l

TABLE OF AUTHORITIES

Cases Page

Krulewitch v. United States, 336 U.S. 440 (1949) .... 4

United States v. Berrigan, 482 F.2d 171 (3d Cir.

SU caciss sé uapannvaenesersdbenetagccasiesadersasitisied » 8

United States v. Giordano, 693 F.2d 245 (2d Cir.

PUMUEEE wiiv.c on nse sdipthnsuessasabhaauccbaneeviotaoistwancntabehe 4

United States v. Marin, 513 F.2d 974 (2d Cir

SUPE. Wivcicvnincvadiadanntausivesksbueslatisqpasabassesssaans 5

United States v. Oviedo, 525 F.2d 881 (Sth Cir

RP Wines sdcancscvsecchisaeehetiaseepussaskenseiaaseened 5

United States v. Rose, 590 F.2d 232 (7ih Cir

FOIE: bccabsnccncunces ofancuddedeerssaddanctectscbanagecdbens 4

United States v. Waldron, 590 F.2d 33 (Ist Cir

DUTT chicsiuhasndscquvinceutbeundasde eaunsauaeesiiinncsesaas 4

Ventimiglia v. United States, 242 F.2d 620 (4th Cir.

SUED sahncdiscbuiaknpevdaseieicvsdansesecebaaea cdaetains 3

Statutes

United States Code, Title 18, Sec. 371 .............0008. 2

United States Code, Title 18, Sec. 1791 ................ 5

United States Code, Title 28, Sec. 1254(1) ............. |

No. ..-..

IN THE

Supreme Court of the United States

October Term, 1982

GARRISON M. EVERETT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

GARRISON M. EVERETT, your petitioner, prays that

a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Ninth Circuit, entered in the

above-entitled case on November 15, 1982. (There are no

parties to this proceeding other than the party named in the

caption.)

Opinion Below.

The opinion of the Court of Appeals (App., infra, 1-9)

is reported at 692 F.2d 596.

Jurisdiction.

The opinion of the court below affirming petitioner’s

conviction (Appendix, infra), was entered on November 15,

1982. The jurisdiction of this court is invoked under 28

U.S.C. §1254(1).

ea, ae

Statute Involved.

18 U.S.C. §371 provides, in pertinent part:

If two or more persons conspire either to commit

any offense against the United States, or to defraud the

United States, or any agency thereof in any manner or

for any purpose, and one or more of such persons do

any act to effect the object of the conspiracy, each shall

be fined not more than $10,000 or imprisoned not more

than five years or both.

Statement.

Petitioner was indicted with others in the Central District

of California on a one-count indictment alleging violation

of 18 U.S.C. §371, conspiracy to impair, impede and ob-

struct the Department of the Treasury in the collection of

tax revenue.

After a trial by jury, petitioner was convicted and was

sentenced to three years to the custody of the Attorney

General and to serve six months in a jail-type institution.

The balance of the sentence was suspended and petitioner

was placed on five years probation and ordered to pay a fine

of $5,000. Petitioner appealed and his conviction was

affirmed.

The government’s evidence at trial consisted primarily

of the testimony of an undercover IRS Agent who posed

as the representative of a non-existent wealthy resident alien

who wanted to shelter 1980 and 1981 income. In March,

1981 after an initial meeting and several discussions, the

Agent asked petitioner about sheltering between $150,000

and $180,000 that his fictitious client had received in taxable

income for 1980. Petitioner told the Agent that he could

create a tax shelter for 1980 by backdating the necessary

documentation.

sailbictie

After further discussions, a backdating scheme was de-

vised and documents were signed in the Agent’s presence

on April 16, 1981 and dated December 22, 1980. After the

documents were signed, the Agent gave Petitioner $45,000

as a down payment and lease payment in connection with

the plan. Shortly after the money exchanged hands, peti-

tioner was arrested.

ck sam

REASONS FOR GRANTING THE WRIT.

A. Legal Impossibility as a Defense to Conspiracy.

This case presents a dangercus ‘‘logical’’ extension of

the conspiracy doctrine. The warning sounded by Justice

Jackson, in his concurring opinion in Krulewitch v. United

States, 336 U.S. 440 (1949), has come to pass. Greatly

troubled by the then expanding use of the conspiracy doc-

trine, Justice Jackson acknowledged that the history of con-

spiracy exemplifies the tendency of a principle to expand

itself to the limit of its logic. He warned,

**. . . the looseness and pliability of the doctrine [re-

ferring to conspiracy] present inherent dangers which

should be in the background of judicial thought wher-

ever it is sought to extend the doctrine to meet the

exigencies of a particular case’’. At 336 U.S. 445-449.

Assume on May 10, 1982, A and B entered into an

agreement to kill Mr. Smith. Unknown to A and B, Mr.

Smith died of a heart attack on May 9, 1982. What result?

Given the amorphous nature of the crime of conspiracy

and its dragnet impact, the criminal goal or object of the

conspiracy must be obtainable in order to sustain a convic-

tion. The Fourth Circuit so holds—Ventimiglia v. United

States, 242 F.2d 620 (4th Cir. 1957) (there can be no con-

spiracy to commit a crime when it is legally impossible to

commit the underlying substantive offense). The Ninth Cir-

cuit Court of Appeals in the instant matter, the Second

Circuit Court of Appeals in United States v. Giordano, 693

F.2d 245 (2d Cir. 1982), the First Circuit in United States

v. Waldron, 590 F.2d 33 (ist Cir. 1979) and the Seventh

Circuit in United States v. Rose, 590 F.2d 232 (7th Cir.

1978) have ruled to the contrary. There presently exists a

conflict in the circuits concerning this important public pol-

icy question. The same public policy considerations which

oe Se

support the legal impossibility defense in the case of ‘‘at-

tempt’’ equally apply to the crime of conspiracy. If any-

thing, since less is required to convict in the case of con-

spiracy, the protection should be broader, not less. To say

that the crime of conspiracy is a separate offense is self-

serving, but does not answer the threshold question. If the

substantive crime, from the outset, could not under any set

of circumstances take place, the law should not convert that

conduct, under the guise of a conspiracy, into a crime.

B. Standards for Establishing Legal Impossibility.

Assuming arguendo the defense of legal impossibility is

available as a defense to the crime of conspiracy, what must

the government prove? Here again the circuits are in serious

conflict. The Second Circuit test looks at the circumstances

as the defendant believes them to be. United States v. Marin,

513 F.2d 974 (2d Cir. 1974). The Third and Fourth Circuits

focus solely on the question whether the objective acts com-

mitted by the defendant constitute a crime irrespective of

the defendant’s intent. United States v. Berrigan, 482 F.2d

171 (3d Cir. 1973); Ventimiglia v. United States, 242 F.2d

620 (4th Cir. 1957). The Fifth Circuit (United States v.

Oviedo, 525 F.2d 881 (Sth Cir. 1976)) and the Ninth Circuit

Court of Appeals in the instant case apply yet another stan-

dard—the acts of the defendant must strongly and unequiv-

ocally corroborate his intent to commit the crime in question.

Finally, there is yet another conflict in the circuits. Pe-

titioner asserts there can be no conviction for conspiracy to

defraud the government when the government has partici-

pated in and has knowledge of the scheme. In United States

v. Berrigan, 482 F.2d 171 (3d Cir. 1973), the defendants

were convicted of an attempted violation of 18 U.S.C.

§1791 for smuggling letters into a federal prison without

knowledge and consent of the warden. The warden in fact

ih ian

knew of the letters. The Third Circuit reversed the convic-

tions on the grounds that, since the substantive offense was

not in fact committed, the defendants could not be convicted

of an attempt to commit the offense. The Ninth Circuit

rejected Berrigan in the instant case.

The sound administration of justice requires uniformity

among the circuits so that citizens of the United States are

treated equally. This court should address the conflict and

resolve the issue.

Conclusion.

The public policy question concerning the availability of

the defense of legal impossibility to the crime of conspiracy

is an issue with far-reaching overtones. We are developing

a system which encourages theoretical and hypothetical

crimes as a substitute for the painstaking process of evolving

a factual basis for conviction. Evil theught—no matter how

reprehensible—should not be the subject of a prosecution.

Moreover, the conflicts by and among the circuit courts of

appeal should be resolved in the interest of judicial admin-

istration. It is therefore respectfully submitted that this

petition for a writ of certiorari should be granted.

Dated: January 12, 1983.

Respectfully submitted,

BRUCE I. HOCHMAN,

Counsel for the Petitioner.

STEPHEN V. WILSON,

MARTIN N. GELFAND,

Of Counsel.