# Petition — Everett v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0273%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 460 U.S. 1051 ## Text 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 I ira cdlesaWidocndsetncnatovedcsvisencsvczcssercesees l 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0273%3A1. Public record. Not legal advice.