Petition — Caliguri v. United States

Office - Suprema Court, U.S. |

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IN THE

Supreme Court of the United States

October Term, 1982

ROSS R. CALIGURI,

Petitioner,

vs.

UNITED STATES OF AMERIVA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

MICHAEL S. WASHOR

HARVEY L. GREENBERG

Members of the Bar of the

United States Supreme Court

299 Broadway

New York, N.Y. 10007

(212) 732-2077

WASHOR, GREENBERG & WASHOR

Attorneys for Petitioner

Ross R. Caliguiri

Buk Batley Printovs: 203 Richmond Avenue @ Staten Island, New York 10302

TeL: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

i

QUESTIONS INVOLVED

1. Was the Petitioner’s Constitutional Right to

Due Process violated when the Trial Court refused to

charge the Jury with the defense of ““Government

overreaching’ or ‘‘outrageous Governmental par-

ticipation and misconduct?”’

2. Was the Petitioner’s Constitutional Right to

Due Process violated when the Trial Court restricted

and limited its instruction to the Petit Jury on

Withdrawal from a Conspiracy? Put another way, did

the Trial Court violate the Petitioner’s Constitutional

Rights by depriving Petitioner of the defense of

Withdrawal from a Conspiracy by its charge to the

Petit Jury?

TABLE OF CONTENTS

Page

Bemeations Presented ......0..ccceccccccescseccesscsencecnscesonovonneeses i

TE OR CIE bocisisnccenanesesusennssctsinscscnvenccsscsoscnnssnscoss iv

PGR Bee VUE ona nccccccncecnessosaerssencovsnsonsensevencecsasnnennees 1

Onitriots BebOW q....ccccccceceressescecsrsesesnecnnscecccnnsvosenenecssocenss 2

IE irs ec cacenccesnenisncecinnccensscccnserscessnnninoqenccenesene 2

Rules of the Supreme Court .........ccscceeseseereereeeeeeserenes 2

Statement of the Case .......cssssrcocereseccsccccsscsccssccssescooses 3

POINT ONE—The Trial Court’s Refusal To

Render A Due Process Charge To The Petit Jury

And Allow A Factual Determination To Be Made

As To Whether The Government’s Conduct Was

So Outrageous As To Constitute A Basis For A

Dismissal Of The Charges Was A Violation Of

The Petitioner’s Constitutional Rights .............0++ 6

POINT TWO—The Petitioner's Constitutional

Right To Due Process Was Violated When The

Trial Court Limited And Restricted Its Instruc-

tion On ‘“‘Withdrawal From A Conspiracy.”’ The

Court’s Charge Effectively Deprived Petitioner

Of A Valid And Meritorious Defense As Well As

Being Tantamount To A Directed Verdict Of

AIRE on cercccsecenseecesennsntesehncnnssocnnenmninsbsnnecnccseosinccennnestionens 14

iV

Appendix A—Unpublished Written Opinion Of

The United States Court of Appeals for the

Dee CCIE on ccccsnvanccvasansecceeconcaensseccsaccsssnenseonecsenenses la

Appendix B—Petitioner’s Written Request Of

The Trial Court To Charge The Petit Jury With

The Defense Of ‘Withdrawal From A Con-

SPITACY? ...eecesssessessvseceeeseeecceneesesesessseeeseeeeteenseeseeeeeees 6a

Appendix C—The Trial Court’s Charge On

Withdrawal From A Conspiracy ...ccssccscsseesresrsreeeeees 8a

Appendix D—The Trial Court's Supplemental

Charge, During Petit Jury Deliberations, On

Withdrawal From A Conspiracy ......::ssssccssererereeeees 10a

Appendix E—Petitioner’s Written Request Of

The Trial Court To Charge The Petit Jury With

The Defense Of Government Violation Of Due

I noes cnntasananccnserccsccenenanentonscsecennrcesonssoncs 12a

TABLE OF CASES

Duncan v. Louisiana, 391 U.S. 145 (1968) .......eeeeee 10

Eldrege v. U.S., 62 F.2nd 449, 10th Cir., 1932 .......... 15

Hampton v. U.S., 425 U.S. 484 (1976) ccccccecceecereereenes 6

Hyde v. U.S., 225 U.S, 347, 1912 cescccceceeeeeees 14,17,18

Pinkus v. U.S., 486 U.S. 298, 1978 w.ccccccccceeseserereereeenes 10

Sherman v. U.S., 356 U.S. 369 (1958) .....ccccceeeeeeeeeeees 6,7

Sparrow v. U.S., 402 F.2nd 826, 10th Cir. SO nese 12

Vv

U.S. v. Andrew, 666 F.2nd 915, 5th Cir., 1982 ............ 9

U.S. v. Archer, 486 F.2d 670, 2d Cir. 1978 .......ccescreeee 7

U.S. v. Bagnell, 679 F.2nd 826, 11th Cir., 1982......... 10

U.S. v. Bastone, 526 F.2nd 971, 7th Cir.

(1975), rehearing en banc denied 1976 ..........:.ssceesseees 15

U.S. v. Battista, 646 F.2nd 237, 6th Cir., (1981)........ 15

U.S. v. Beck, 118 F. 2nd 178; 7th Cir., 1941 .............. 16

U.S. v. Borelli, 336 F.2nd 376, 2nd Cir. 1964 ............. 15

U.S. v. Brandon, 633 F.2nd 778, 9th Cir., 1980........... 9

U.S. v. Continental Group, Inc., 603 F.2nd 444,

Be OE TTS vac vcsccerensenncrenpnsnineseonseesccncesssensecsereeeens 15,18

U.S. v. Creamer, 555 F.2nd 612, 7th Cir., 1977 ......... 12

U.S. v. Fera, 616 F.2nd 590, 1st Cir., 1980,

i OE OT I FE ban cisctencncececscenecnnnosonsasnonen 11

U.S. v. Fountain, 652 F.2nd 1083, 7th Cir., 1981...... 13

U.S. v. Gilliss, 645 F.2d 1269, 8th Cir., 1981 ............. ll

U.S. v. Heckman, 479 F.2nd 726, 3rd Cir., 1973. ....... 16

U.S. v. Hendrix, 542 F.2nd 879, 2nd Cir., 1976,

Oe i FFG iiiicsecsccosenensennnenvenerneereens i]

U.S. v. Hickey, 360 F.2nd 127, 7th Cir. (1966) .......... 15

pes Be

U.S. v. Hillsman, 522 F.2nd 454, 7th Cir. 1975 ......... 12

U.S. v. Hoke, 610 F.2nd 678, 9th Cir., 1980 oo... 9

U.S. v. Jimenez, 622 F.2nd 753, 5th Cir., 1980 .......... 19

U.S. v. Lowell, 490 F.Supp. 897, D.C., N.J., 1980 15,18

U.S. v. Panzanella, 416 F. Supp. 68,

ge 6 ESE BS SIE eS SME Cee tscn em rancnls 18

U.S. v. Paunell, 581 F.2d 1374, 10th Cir., 1978 ....15,18

U.S. v. Prieskorn (658 F.2nd 631, 8th Cir., 1981 ....... 11

U.S. v. Quintana, 508 F. 2nd 867, 7th Cir. 1975.......... 8

U.S. v. Reed, 658 F. 2nd 1225, 7th Cir., 1981 ....... 17,19

U.S. v. Richardson, 596 F.2nd 157, 6th Cir. 1979 .....19

U.S. v. Romano, 278 F. 2nd 202, 2nd Cir., 1960 .......... )

LS & Besse, 60) U.S. 423 (1979) .......................... 6,7

U.S. v. Sampal, 636 F.2nd 621, D.C. Cir., 1980 ......... 11

U.S. v. Swanson, 572 F.2nd 523, 5th Cir.,

We I re vor emeceerecretcee )

ie & Zoos, cee ro oe. (1981) .............................. u

U.S. v. Twigg, 588 F.2d 373, 3rd Cir. 1979 .................. &

U.S. v. U.S. Gypsum Co., et al., 438

ee a ele cenctntenancess 14,15,19

vil

U.S. v. Weber, 518 F.2d 987, 8th Cir., 1975................... 8

U.S. v. Wentland, 582 F. 2nd 1022, 5th Cir., 1978 ....18

U.S. v. West, 611 F.2d 1063, 3rd Cir., 1975 ................. 8

OTHER AUTHORITIES

Developments in the Law-Criminal Conspiracy,

Fe PEGE, Fy, OG, Ba, Fe 1 orcnccscetencesecenecenesensesnens 14

Donnelly, Judicial Control of Informants, Spies,

Stool Pigeons and Agents Provocateurs, 60 Yale

Lid. 1061, TOBG-1115 (L9G) ......cccrccercecesecccosesececsenroesees 6

Mikell, The Doctrine of Entrapment in the

Federal Courts, 90 U. Pa. L. Rev. 245 (1947) ............... 6

Rotenberg, Withdrawal as a Defense to Rela-

tional Crimes, 1962 Wis. L. Rev. 596, 604 ................. 17

1

IN THE

| SUPRE?®*F COURT OF THE UNITED STATES

October Term 1982

No.

ROSS R. CALIGURI,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioner, ROSS R. CALIGURI, respectfully re-

quests that a Writ of Certiorari issue to review the

judgment and order of the United States Court of Ap-

peals for the Fourth Circuit, entered on May 3rd,

1983, affirming a judgment of the District Court of

' Maryland entered on May 6th, 1982, convicting Peti-

tioner after a jury trial of the crime of Conspiracy in

violation of Title 21 U.S.C., Section 846.

As a consequence of this conviction, the Peti-

tioner was sentenced to a term of six (6) years im-

prisonment; in addition, the Trial Court imposed a

committed fine of Five Thousand ($5,000.00) Dollars.

2

OPINION BELOW

The United States Court of Appeals for the

Fourth Circuit affirmed the judgment of conviction

without formal written opinion; however, an un-

published written opinion was rendered and is annex:

ed hereto, as part of Appendix ‘‘A.”’

JURISDICTION

The order of the United States Court of Appeals

for the Fourth Circuit was rendered on May 3rd, 1983.

The jurisdiction of this Court is invoked, made,

and conferred under 28 U.S.C. 1254(1) and under Rule

19(1) of the Rules of the Supreme Court.

RULES OF THE SUPREME COURT

Rule 19, Considerations Governing Review on

Certiorari.

1. A review on writ of certiorari is not a matter of

right, but of sound judicial discretion, and will be

granted only where there are special and important

reasons therefor. The following, while neither controll-

ing nor fully measuring the Court’s discretion, in-

dicate the character of reasons which will be con-

sidered:

(a) Where a state court has decided a federal ques-

tion of substance not theretofore determined by this

court, or has decided it in a way probably not in accord

with applicable decisions of this court.

(b) Where a Court of Appeals has rendered a deci-

3

sion in conflict with the decision of another Court of

Appeals on the same matter; or has decided an impor-

tant state or territorial question in a way in conflict

with applicable state or territorial law; or has decided

an important question of federal law which has not

been but should be, settled by this court; or has decid-

ed a federal question in a way in conflict with ap-

plicable decisions of this court; or has so far:departed

from the accepted and usual course of judicial pro-

ceedings, or so far sanctioned such a departure by a

lower court, as to call for an exercise of this court's

power of supervision.

STATEMENT OF THE CASE

On May 11th, 1981, in Salisbury Maryland, the:

Drug Enforcement Administration (DEA) initiated:

and led a “reverse undereover operation’’ wherein

DEA Agents posed as and purported to be drug

sellers.

The DEA leased several motel rooms: for the

operation, brought marijuana with them for sampling,

utilized a confidential informant to solicit the prospec-

tive buyers, rented a farm house to store the drugs; ac-

tually had 15,000 pounds of marijuana. transported

from Florida to Maryland, utilized trailer trucks and

airplanes in this operation, and rented scales to weigh

the marijuana.

Co-defendants, DEREEDER and HUBERT, hav-

ing been lured and importuned by the confidential in-

formant to Maryland, met with the undercover DBA

agents; they discussed a prospective marijuana-deal

advising that they were acting on behalf of the: Peti-

tioner, CALIGURI.

4

The DEA provided a sample of the drugs for

testing as to its quality.

During the next several days, negotiations con-

tinued and the undercover DEA agents were informed

that HUBERT desired to purchase 50 pounds of mari-

juana while DEREEDER was arranging to purchase

the entire 15,000 pounds of marijuana on behalf of

several drug buyers, excluding the Petitioner,

CALIGURI.

The DEA escalated the proposed sale by offering

the drugs partially upon credit. Put another way, the

Government agents offered an equal amount of the

drugs on consignment for every pound of marijuana

actually paid for. As a further enticement, the Govern-

ment agents offered a 20% discount for a separate and

future drug operation.

On May 12th, 1981, HUBERT gave DEA agents

$28,000.00 for the ‘‘future’’ deal, having been cajoled

into believing this money was needed to cover and

defer future expenses.

Negotiations continued and on May 14th, 1981,

DEREEDER introduced GEORGE FERGUSON, a

buyer, to the DEA; he advised the DEA that he

represented buyers from Florida and Washington.

That evening, as a further inducement, DEA agents

brought DEREEDER and FERGUSON to the rented

farm house to view the bulk of marijuana and gave

them each samples.

The following day, Petitioner, CALIGURI, met

with DEREEDER, HUBERT and DEA Agents at

Salisbury Airport. Petitioner inquired if the Mari-

5

juana had been brought from Florida and why it could

not be brought directly to New York. There were no

discussions relating to price, quantity, quality, or

delivery of the drugs. There was no discussion concer-

ning any purchase of drugs.

Soon thereafter, both DEREEDER and

HUBERT were advised by Petitioner that he was

suspicious, did not like the ‘‘set-up”’ and was no longer

interested in the “deal.” Petitioner advised that he

was not going to become involved. In fact, no monies

were ever provided by Petitioner and he had ‘‘backed-

out of the deal’, prior to any consummated transac-

tions.

Even as late as May 19th, 1981, Petitioner was

solicited into the transaction, but again refused and

disavowed his association. }

The principal Government witness admitted that

Petitioner’s disavowance almost ‘“‘wiped the whole

thing out.’’ That Petitioner’s refusal to participate

almost defeated the goal of the conspiracy.

1. A Pilot had flown to New York on behalf of Dereeder to pick up

Petitioner; he refused to go to Maryland and told the Pilot he

wanted nothing to do with the deal.

6

POINT ONE

THE TRIAL COURT’S REFUSAL TO RENDER A DUE

PROCESS CHARGE TO THE PETIT JURY AND

ALLOW A FACTUAL DETERMINATION TO BE

MADE AS TO WHETHER THE GOVERNMENT'S CON-

DUCT WAS SO OUTRAGEOUS AS TO CONSTITUTE A

BASIS FOR A DISMISSAL OF THE CHARGES WAS A

VIOLATION OF THE PETITIONER'S CONSTITU-

TIONAL RIGHTS.

The Due Process defense of Governmental over-

reaching, over-participation or outrageous conduct

emanates from a consideration of the defense of En-

trapment. (Mikell, The Doctrine of Entrapment in the

Federal Courts, 90 U. Pa. L. Rev. 245 (1947); Donnelly,

Judicial Control of Informants, Spies. Stool Pigeons

and Agents Provocateurs, 60 Yale LJ. 1091,

1098-1115 (1951); Note, Entrapment, 73 Harv. L. Rev.

1333 (1960).

Of recent vintage, the Supreme Court has spoken

of Governmental overreaching and Governmental

outrageous conduct (Sherman v. U.S., 356 U.S. 369

(1958); U.S. v. Russell, 411 U.S. 423 (1973); Hampton

v. U.S., 425 U.S. 484 (1976).

Mr. Justice Powell, in his separate concurring opi-

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

to the obligation of the federal courts to carefully ex-

amine law enforcement practices; at page 494, foot-

note No. 5:

‘We should not disregard lightly Mr. Justice

Frankfurter’s view that there is responsibility

‘necessarily in [the court's] keeping...to accom-

modate the dangers of over zealous law enforcement

‘

and civilized methods adequate to counter the in-

genuity of modern criminals.”

In Sherman v. United Staies, 356 U.S. 369, 383,

Mr. Justice Frankfurter observed:

‘Past crimes do not forever outlaw the criminal and

open him to police practices, aimed at securing his

repeated conviction, from which the ordinary citizen is

protected. The whole ameliorative hopes of modern

penology and prison administration strongly counsel

against such a view.

In Russell, supra. Mr. Justice Rehnquist

recognized the import of Governmental over-

participation and abuse of Due Process. At page 431,

he stated:

‘‘While we may some day be presented with a situa-

tion in which the conduct of law enforcement agents is

so outrageous that due process principles would ab-

solutely bar the government from invoking judicial

processes to [411 U.S. 432] obtain a conviction, cf.

Rochin v. California, 342, U.S. 165, 96 L.Ed. 183, 72S.

Ct. 205, 25 ALR2d 1396 (1952), the instant case is

distinctly not of that breed.’’ (emphasis supplied).

Likewise, Circuit Courts have followed the dic-

tates and rationale of the repugnancy of outrageous

Governmental conduct.

Judge Friendly’s expression in U.S. v. Archer,

(486 F.2d 670, 2d Cir. 1973) is noteworthy:

‘There is certainly a [constitutional] limit to allowing

governmental involvement in the crime. It would be

unthinkable, for example, to permit government

8

agents to instigate robberies and beatings merely to

gather evidence to convict other members of a gang of

hoodlums.’’ (676-677)

In U.S. v. West, (511 F. 2d 1083, 3rd Cir., 1975)

the Court held:

‘Frequently, it is permissible law enforcement prac-

tice for an undercover agent to obtain evidence of

unlawful traffic in narcotics by purchasing heroin

from a suspected drug peddler. But when the govern-

ment’s own agent has set the accused up in illicit ac-

tivity by supplying him with narcotics and then in-

troducing him to another government agent as a pro-

spective buyer, the role of government has passed the

point of toleration. Moreover, such conduct does not

facilitate discovery or suppression of ongoing illicit

traffic in drugs. It serves no justifying social objec-

tive. Rather, it puts the law enforcement authorities in

the position of creating new crime for the sake of br-

inging charges against a person they had persuaded to

participate in wrongdoing.” (Emphasis supplied)

The defense of ‘‘outrageous’’ government conduct

has also been recognized in other Circuits. (See U.S. v.

Weber, 518 F.2d 987, 8th Cir., 1975: U.S. v. Quintana,

508 F. 2nd 867, 7th Cir. 1975).

In U.S. v. Twigg, (588 F.2d 373, 3rd Cir. 1979) the

Court recognized the defense of ‘‘outrageous’’ govern-

ment conduct and stated at page 378:

‘‘. , aithough proof of disposition to commit the crime

will bar application of the entrapment defense, fun-

damental fairness will not permit any defendant to be

convicted of a crime in which police conduct is

‘outrageous.’ "’

9

In U.S. v. Romano (278 F. 2nd 202, 2nd Cir., 1960)

the Court reasoned that:

‘it is unthinkable that the Government should

prosecute those whom it urged to commit crimes and

therefore our Courts refuse to countenance prosecu-

tions which rest on such an unsavory foundation.”

In United States v. Tobias, 662 F2d 381 (1981) at

page 386, the Court clearly restated the doctrine set

out in Twigg, supra, and its progeny:

‘‘ ., The Government may not instigate the criminal

activity, provide the place, equipment, supplies, and

knowhow, and run the entire operation with only

meager assistance from the defendants without

violating fundamental fairness.”’

Factual defenses such as Entrapment (issues

directed to defendant’s pre-disposition and Govern-

ment’s original solicitation) insanity (issues directed

to defendant’s state of mind and ability to com-

prehend “‘right from wrong’”’) and alibi (issues directed

to credibility of defense and prosecution witnesses)

have always been left for a Petit Jury’s determination.

(U.S. v. Andrew, 666 F.2nd 915, 5th Cir., 1982; U.S. v.

Brandon, 633 F.2nd 773, 9th Cir., 1980; U.S. v. Hen-

drix, 542 F.2nd 879, 2nd Cir., 1976) Cert. den. 97 S. Cr.

1609, 1977; U.S. v. Swanson, 572 F.2nd 523, 5th Cir.,

Cert. den. 995 Cr. 152, 1978); U.S. v. Hoke, 610 F.2nd

678, 9th Cir., 1980).

Surely, the defense of Governmental overreaching

or over-participation or outrageous conduct, which

emanates from the concept of Entrapment is a factual

issue for a Petit Jury to ultimately decide.

10

Contrasted with the intellectual proclivities of an

isolated Judge what better hold on impermissible

Government conduct is there than the verdict and

determination by the representative peers of a com-

munity, the Petit Jury.

If ours is a ‘Government by the People and for

the People,” then surely the Petit Jury has both the

right and the obligation to scrutinize the

Government’s conduct and determine if they have

gone too far; lest George Orwell's “1984” precipitate

from fiction to reality.

In the case at bar, the Petitioner requested a Due

Process charge which was refused. Petitioner was pro-

hibited from arguing that the Government’s conduct

was outrageous and violated his constitutional rights.

The function of a jury is to stand between the

sovereign and the individual citizen (Duncan v. Lout-

siana, 391 U.S. 145 (1968).

Ergo, the jury function of scrutining the Govern-

ment’s conduct is both apparent, necessary and con-

stitutionally mandated.

In addition to the traditional defenses of alibi, in-

sanity and entrapment, Juries have also considered

and decided First and Fifth Amendments issues. This

is consistent with petitioner’s position that any

Governmental overreaching must ultimately be

scrutinized by a Jury.

Issues concerning ‘‘Community standards’’ and

‘freedom of speach”’ are factual issues left to a jury's

determination (Pinkus v. U.S, 436 U.S. 293, 1978;

11

U.S. v. Bagnell, 679 F.2nd 826, 11th Cir., 1982).

Police Conduct and the voluntariness of a confes-

sion are factual issues ultimately to be determined by

a Petit Jury (U.S. v. Sampal, 636 F.2nd 621, D.C. Cir.,

1980; U.S. v. Fera, 616 F.2nd 590, 1st Cir., 1980, cert.

den. 446 U.S. 969, 1980).

As a general proposition of law, an accused is en-

titled to have a determination by a jury based upon

his theory of the prosecution. U.S. v. Prieskorn (658

F.2nd 631, 8th Cir., 1981) succinctly sets forth this

principle; at page 636, the Court states:

“It is well established that a defendant in a criminal

case is entitled to an instruction on his theory of the

case if there is evidence to support it and a proper re-

quest is made. A proper request is one which is timely,

is supported by the evidence and sets forth a correct

statement of the law.” (citations omitted).

Parenthetically, the Court also recognized that

the evidence of the accused’s defense need only come

from the prosecution’s case and neither requires the

defendant to perpetuate testimony nor produce any

evidence to establish his theory. Continuing on page

636, the Court reasoned:

“The defendant need not testify nor offer any

evidence or witnesses as a prerequisite to the trial

court instructing as to the theory of defense. The foun-

dation of the theory may rest upon evidence elicited

from government witnesses either on direct or cross-

examination (8A Moore’s Federal Practice, Section

30.03(1), 30-7, 2nd ed. 1981).”’

In U.S. v. Gilliss, (645 F.2d 1269, 8th Cir., 1981)

12

the Court, recognized it was the content of a requested

instruction rather than the form that premised a

denial of a constitutional right to a defense. At page

1274, the Court stated:

“A defendant is entitled to an instruction on his

theory of the case if there is evidence to support it and

a proper request is entered (U.S. v. Brown, 540 F.2nd

364, 8th Cir. 1976). A defendant, however, is not entitl-

ed to an instruction in a particular form even if the re-

quested instruction is proper and in form suitable for

use by the Court, the Court retains discretion in

framing the instruction.”’

Notwithstanding the probative weight of the

evidence an accused is nontheless entitled to have a

jury presented with his defense theories. In U.S. v.

Creamer, (555 F.2nd 612, 7th Cir., 1977) the Court held

at page 614:

‘‘A criminal defendant is entitled to have a jury in-

struction on any defense which provides a legal

defense to the charge against him and which has

‘some foundation in the evidence, “even though the

evidence may be weak, insufficient, inconsistent or of

doubtful credibility’.’ U.S. v. Hillsman, 522 F.2nd

454, 7th Cir. 1975)’’ (emphasis supplied).

The Tenth Circuit, has held, in Sparrow v. U.S,

(402 F.2nd 826, i0th Cir. 1968) that the defense of

‘“good faith” in a mail fraud and securities act pro-

secution, must be presented for jury determination if

there 1s evidence to support the defense theory. At

page 828, the Court stated:

“It is apparent that a defendant is entitled to ade-

quate instructions on his theory of the case if suffi-

13

cient evidence is presented to support it’’ (citations

omitted)

The Seventh (7th) Circuit, likewise, has held, in

U.S. v. Fountain (652 F.2nd 1083, 7th Cir., 1981), at

page 1095:

‘,. that a defendant in a criminal case is entitled to

have a jury consider any defense theory that has some

foundation in the evidence, however tenuous.” (cita-

tions omitted).

In the case at bar, it was established through the

government witnesses that the Government initiated

contact with the accused (co-defendants and co-

conspirators Dereeder and Hubert); there was no on-

going criminal enterprise in which the Government

had hoped to infiltrate. D.E.A. agents posed as sellers

of Marijuana. The initial solicitation by the Govern-

ment was created through a paid informer. The

Government financed hotel rooms and meals for this

operation; they rented a farm house to store the

drugs; they leased large scales to weigh the drugs;

they utilized airplanes and trucks to transport 15,000

lbs of Marijuana from Florida to Maryland; they sup-

plied all of the drugs forming the gravaman of the con-

spiracy charge; on several occasions they actually

distributed samples of the drugs.

Put another way, the Government created the

crime, supplied all the necessary ingredients for its

completion and unquestionably distributed drugs,

without all of which there would have been no crime

committed by any of the defendants. The Govern-

ment’s participation was not merely peripheral but

rather all inclusive and extensive.

14

The issue of whether the Government violated the

basic standards of decency and justice requiring

dismissal of the charges permeated the entire trial. It

was clearly the function of the jury, based upon the

overwhelming participation by the Government, to

determine the line between the enticement of the un-

wary innocent and the trap for the unwary criminal.

POINT TWO

THE PETITIONER’S CONSTITUTIONAL RIGHT TO

DUE PROCESS WAS VIOLATED WHEN THE TRIAL

COURT LIMITED AND RESTRICTED ITS INSTRUC.

TION ON “WITHDRAWAL FROM A CONSPIRACY.”

THE COURT’S CHARGE EFFECTIVELY DEPRIVED

PETITIONER OF A VALID AND MERITORIOUS

DEFENSE AS WELL AS BEING TANTAMOUNT TO A

DIRECTED VERDICT OF GUILT.

A participant in a criminal venture may withdraw

from the illegal enterprise. The stated policy behind

the legal recognition of the defense of “withdrawal” is

to encourage conspirators to weaken the criminal com-

bination by lessening its number of participants

(Developments in the Law-Criminal Conspiracy, 72

Harv. L. Rev. 920, 957-1959; Hyde v. U.S., 225 U.S.

347, 1912).

The defense of withdrawal is applicable to a con-

spiracy charge (U.S. v. U.S. Gypsum Co., et al., 438

U.S. 422, 1978).

The elements of withdrawal are no longer in

dispute: A participant must notify a co-participant of

his intention to withdraw from the continuation of the

criminal enterprise and must take an affirmative step,

by act or words, that tends to defeat the purpose of or

15

disavow the goal of the criminal enterprise. (U.S. v.

U.S. Gypsum Co., et al., supra; U.S. v. Paunell, 581

F.2d 1374, 10th Cir., 1978; U.S. v. Lowell, 490 F.

Supp. 897, D.C., N.J., 1980; U.S. v. Smith, 623 F. 2d

627. 9th Cir., (1980); U.S. v. Battista, 646 F.2nd 237,

6th Cir., (1981); U.S. v. Continental Group, Inc., 603 F.

ond 444, 2nd Cir., 1979; U.S. v. Borelli, 336 F. 2nd 376,

ond Cir. 1964; U.S. v. Hickey, 360 F. 2nd 127, 7th Cir.

(1966): U.S. v. Bastone, 526 F.2nd 971, 7th Cir. (1975),

rehearing en banc denied 1976; Eldrege v. U.S., 62 F.

2nd 449, 10th Cir., 1932).

Constitutional error is assigned to that aspect of

the Trial Court’s charge severely restricting the

withdrawal concept.

The charge stated:

“In order to escape responsibility, a defendant must

withdraw before an overt act in furtherance of the con-

spiracy has been committed” (emphasis supplied).

And, further on, the charge stated:

“if you find that he joined the conspiracy, and

that he took affirmative steps to withdraw but that

such steps were taken after an overt act was commit-

ted, then the defense of withdrawal is not available to

him’’ (emphasis supplied).

The jury, during its deliberations, requested a

clarification on the issue of withdrawal, and the Trial

Court, for a second time, reiterated the original in-

structions thereby compounding the constitutional er-

ror.

16

This erroneous charge created problems of con-

stitutional dimension in that it effectively took away

the defense of withdrawal from the Petit Jury’s con-

sideration as well as depriving the Petitioner of a fair

trial and Due Process.

A general conspiracy charge pursuant to Title 18

U.S.C. Section 371, requires the pleading and proof of

an overt act in order to establish the crime charged.

The Petitioner was charged with the crime of Con-

spiracy pursuant to Title 21 U.S.C. Section 846, which

requires merely the pleading and proof that two or

more persons combined or agreed to violate a par-

ticular narcotic statute. Put another way, a prosecu-

tion pursuant to Title 21 U.S.C. Section 846 does not

require either the pleading of or the proof of an overt

act being committed in furtherance of the conspiracy’

(U.S. v. Garcia, 655 F. 2nd 59 5th Cir., 1981).

When an overt act is required for the prosecution

of a conspiracy, an accused who withdraws before that

act is committed may not be punished as a member of

the conspiracy (U.S. v. Heckman, 479 F. 2nd 726, 3rd

Cir., 1973; U.S. v. Beck, 118 F. 2nd 178, 7th Cir.,

1941). Prior to an overt act being committed, there is

no crime committed in a prosecution under Title 18

U.S.C., §371.

After withdrawal, an accused no longer stands as

a member of the conspiracy and as a general rule, the

2. The Supreme Court had recognized early in its consideration of

the law of conspiracy that an overt act is somewhat likened to the

key that starts an automobile.

17

later acts of his former co-conspirators do not bind

him (U.S. v. Reed, 658 F. 2nd 1225, 7th Cir., 1981);

withdrawal will exonerate him from subsequent

crimes. (Rotenberg, Withdrawal as a Defense to Rela-

tional Crimes, 1962 Wis. L. Rev. 596, 604).

In Hyde v. U.S., supra, at page 388, the Court

stated:

‘an overt act is simply evidence that the conspiracy

has passed beyond words and is on foot when the act

is done.”’

However, withdrawal after an overt act is ef-

fected, as applied to a conspiratorial charge may well

operate to render the accused criminally responsible

and liable for his previous agreement and for the

previous acts of his former co-conspirators (U.S. v.

Wooten, 638 F. 2nd 941, 4th Cir. 1982; U.S. v. Reed,

658 F. 2nd 1225, 7th Cir., 1981).

Where no overt act is required for the prosecution

of a conspiracy, as in the case at bar, then withdrawal

is a partial rather than a complete defense (1982 For-

dam L. Rev. Vol. 51, No. 3, 441).

By its very instruction, the Trial Court deprived

the Petitioner of both the partial and complete defense

of withdrawal.

Simply stated, withdrawal can be accomplished at

any time prior to the completion of the crime. The con-

sequences of when withdrawal occurs will dictate

whether the defense is partial or complete. The point

in time of disavowance of an ongoing criminal scheme

will determine whether the withdrawer is to be totally

18

exonerated or whether he is to be held responsible for

his agreement prior to his withdrawal.

In the case at bar, the limiting or restrictive in-

struction by the Trial Court prevented the application

of the defense of withdrawal subsequent to the com-

mission of an overt act. This took away from the

jury’s consideration the defense of withdrawal as a

partial defense.

Since, in fact, the conspiratorial charge at bar, re-

quired no overt act, the proper instruction, as re-

quested by Petitioner, should have been framed to

allow withdrawal at any time prior to the time period

covered by the Indictment or at any moment prior to

the end of the Conspiracy (U.S. v. Continental Group,

Inc., 603 F. 2nd 444, 2nd Cir., 1979); U.S. v. Pan-

zanella, 416 F. Supp. 68, W.D.P.A. 1976; Hyde v. U.S.,

supra; U.S. v. Lowell, 649 F. 2nd 950, 3rd Cir., 1987;

U.S. v. Wentland, 582 F. 2nd 1022, 5th Cir., 1978);

U.S. v. Parnell, 581 F. 2nd 1374, 10th Cir., 1978).

The failure to render such an instruction took

away from the jury’s consideration the defense of

withdrawal as either a partial or complete defense.

This restrictive and limiting type of instruction

has been held to constitute constitutional error. Mr.

Chief Justice Berger, writing for this Court, in U.S. v.

Gypsum Co., supra., stated at page 464:

“Tne charge, fairly read, limited the Jury’s considera-

tion to only two circumscribed and arguably imprac-

tical methods of demonstrating withdrawal from the

conspiracy. Nothing that we have been able to find in

the case law suggests, much less commands, that such

continuing blinders be placed on the jury's freedom to

19

consider evidence regarding the continuing participa-

tion of alleged conspirators in the charged conspiracy.

Affirmative acts inconsistent with the object of the

conspiracy and communicated in a manner reasonably

calculated to reach co-conspirators have generally

been regarded as sufficient to establish withdrawal or

abandonment.”

Not only is the Fourth Circuit Court of Appeals’

decision in conflict with the holdings of this Supreme

Court, but also creates a legal disparity and

dichotomy between Circuits. (See U.S. v. Richardson,

596 F. 2nd 157, 6th Cir. 1979; and U.S. v. Jimenez, 622

F, 2nd 753, 5th Cir., 1980; U.S. v. Reed, 658 F. 2nd

1225, 7th Cir., 1981).

The legal efficacy of the Trial Court’s charge,

under any prosecution for conspiracy is paradoxyl. To

suggest that the defense of ‘withdrawal’ can only be

applied prior to an overt act being committed is tanta-

mount to stating that there is no defense of

“withdrawal” in a conspiracy prosecution. That is the

antithesis of the law (U.S. v. Gypsum Co., et al,

supra.)

In a conspiracy prosecution under Title 18 U.S.C.

Section 371, until an overt act occurs there is no

crime. Restricting the ‘‘withdrawal’’ defense to the

period between the conspiratorial agreement and the

first overt act is denying the defense of ‘‘withdrawal.”’

One may only ‘“‘withdraw’’ from a crime that he once

was a participant in.

In a conspiracy prosecution under Title 21 U.S.C.

Section 846, the illegal agreement without an overt

act constitutes the crime. Restricting the

‘““withdrawal’’ defense to a period prior to the first

20

overt act defeats and limits even the application of the

partial defense of ‘‘withdrawal.’’

Under Section 846 (supra), and Section 371

(supra), the “‘withdrawal’’ by a conspirator can occur

at any time prior to the goal of the conspiracy being

accomplished. The time frame within which the

‘‘withdrawal’’ occurs will determine whether the

defense is absolute (exonerates the accused) or partial

(extends criminal liability for only those acts prior to

the ‘‘withdrawal’’).

As applied to the defense of ‘‘withdrawal”’ Section

346 of Title 21 U.S.C. is unconstitutional. Since the in-

cohate conspiracy charge is complete when the agree-

ment is made, the ‘‘withdrawal’’ defense can never be

absolute or full and may only be applied as a partial

defense. Effectively, then, the statute by its terms

prohibits, limits and denies the defense of

‘‘withdrawal”’ which is unconstitutional.

CONCLUSION

IT IS RESPECTFULLY SUBMITTED THAT

THIS PETITION FOR A WRIT OF CER:

TIORARI BE GRANTED.

Respectfully submitted,

MICHAEL S. WASHOR

HARVEY L. GREENBERG

Members of the Bar of the

United States Supreme Court.

WASHOR, GREENBERG AND WASHOR, ESQS.

Attorneys for petitioner

On Petition for Certiorari

la

APPENDIX “A”’

UNPUBLISHED WRITTEN OPINION OF

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5161

UNITED STATES OF AMERICA,

Appellee,

v.

ROSS R. CALIGURI and JAMES P. HUBERT,

Appellants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Shirley B. Jones, Judge.

Argued: December 10,1982 Decided: April 12, 1983

Before WINTER, Chief Circuit Judge,

RUSSELL, Circuit Judge and BRYAN, Senior Circuit

Judge.

2a

Michael Washor (Washor, Grenberg and Washor

on brief) and Robert I. Kaline (Jay Gregory Horlick on

brief} for Appellants; Stephen J. Immelt, Assistant

United States Attorney (Steven A. Allen, Assistant

United States Attorney on brief) for Appellee.

PER CURIAM:

Defendants Ross Caliguri and James Hubert ap-

peal their convictions for conspiracy to possess with

intent to distribute a quantity of marijuana in excess

of 1,000 pounds.' A jury for the Federal Court for the

District of Maryland found both defendants guilty

and the Court sentenced each man to a term of im-

prisonment as well as the payment of fines. Finding

no error‘on the part of the District Court, we affirm

the judgments.

I

The events. in this case commenced in April of

1981 when an undercover informant of the Drug En-

forcement Administration (D.E.A., Ronald: Poe, in-

formed a reputed drug trafficker, Edward Dereeder,

that he-had marijuana. for :sale: Dereeder in turn con-

taeted defendant JamesHubert and told him on Poe's

conversation. Hubert said he had a friend who might

be: interested in a large marijuana-purchase.

1. 21 U.S.C. $856; The statute provides:

Any person who attempts or conspires to commit any of-

fense defined in this subchapter is punishable by imprison-

ment or fine or both which may not exceed the maximum

punishment prescribed for the offense, the commission of

which was the object of the attempt or conspiracy.

3a

Numerous conversations between the parties en-

sued and in early May of 1981 the D.E.A. landed an

airplane loaded with marijuana at an airfield near

Ocean City, Maryland. Poe rented hotel rooms for

Hubert and Dereeder who drove to Maryland to in-

spect the contraband. Both men were introduced to

Agents O'Leary and Miller of the D.E.A. who showed

them the marijuana at the airstrip and gave them

samples.

In the meantime, Hubert contacted defendant

Caliguri, who according to Hubert, was to be the prin-

cipal purchaser of the marijuana. Caliguri then arriv-

ed from New York to view the marijuana, met the

agents, discussed a sale, and received a sample.’

After returning to his home in New York, Caliguri

expressed his concern to Hubert that they might be

the possible targets of an undercover operation.

Despite his apprehension and refusal to return to

Maryland, the sale proceeded and Hubert Dereeder,

and a third party were arrested.

After the grand jury returned indictments

against the defendants, each made various pre-trial

motions to suppress the evidence and quash the in-

dictment.’ These motions were denied. A jury con-

victed both men of violating 18 U.S.C. §846, and the

Court sentenced Caliguri to six years imprisonment

2. During his conversation with the agents, Caliguri propounded

a number of questions regarding the transportation of the mari-

juana. In addition, Caliguri inquired as to the amount of mari-

juana the agents might obtain, asking ‘“‘how deep is the well?”’

3. Dereeder also was indicted.

4a

and Hubert to four years imprisonment.

II

Caliguri first urges that he withdrew from the

conspiracy and that the District Court improperly in-

structed the jury on the availability of this defense.

The Court told the jury that ‘‘in order to invoke the

withdrawal defense, a defendant must withdraw from

the conspiracy before any overt act in furtherance of

the conspiracy has been committed.’’ The Court then

placed the burden on the Government of disproving

withdrawal beyond a reasonable doubt.

A conspirator’s withdrawal marks his disavowal

or abandonment of the conspiracy. Hyde v. United

States, 225 U.S. 347, 369 (1912). After withdrawal, a

defendant no longer stands as a member of the con-

spiracy and the later acts of the conspirators do not

bind him. United States v. Read, 658 F.2d 1225, 1232

(7th Cir. 1981). Nonetheless, the defendant remains

liable ‘‘for his previous agreement and for the

previous acts of his co-conspirators in pursuit of the

conspiracy.’’ Jd., United States v. Wooten, 688 F. 2d

941, 947 (4th Cir. 1982). In consequence, the District

Court’s instruction on withdrawal constituted a pro-

per statement of the law. See also United States v.

Nicoll, 664 F. 2d 1308, 1315 (5th Cir. 1982) cert. denied

102 S. Ct. 2929 (1982).

Caliguri next argues that the evidence presented

at trial was insufficient to support his conviction. The

evidence, however, discloses the existence of an agree-

ment whereby Dereeder and Hubert assented to work

as Caliguri’s agents for the purchase of the marijuana.

Cliguri further committed an overt act in pursuit of

56

the goal of the conspiracy when he travelled to

Maryland and inspected the marijuana.

Lastly, both Hubert and Caliguri maintain that

the investigation conducted by the D.E.A. violated

their rights to due process of law. Although some

future defendant may successfully rely upon the

defense of Government misconduct, the tactics of the

Government in the present instance fell short of the

‘“‘outrageous”’ conduct denounced in United States v.

Russell, 411 U.S. 423 (1973). Despite the active role

maintained by the Government throughout the in-

vestigation, the D.E.A. agents did not press a sale

upon an unwilling buyer. Rather, the defendants

readily accepted the Government’s offer. See United

States v. Tavelman, 650 F.2d 1133 (9th Cir. 1981) cert.

denied 102 S. Ct. 1429. The judgment of the District

Court is affirmed.

AFFIRMED

6a

APPENDIX “B”

PETITIONER’S WRITTEN REQUEST OF

THE TRIAL COURT TO CHARGE THE PETIT

JURY WITH THE DEFENSE OF

“WITHDRAWAL FROM A CONSPIRACY”

DEFENDANT’S REQUEST TO CHARGE

CONCERNING WITHDRAWAL FROM

A CONSPIRACY

REQUEST TO CHARGE NO. 12

(withdrawal from a conspiracy)

If the jury should conclude that a conspiracy ex-

isted and that defendant Caliguri was a member of the

conspiracy charged and that an overt act had taken

place in furtherance of the conspiratorial goal, it is

then your duty, under the facts of this case, to con-

sider if the defendant Caliguri withdrew from the con-

spiracy.

Withdrawal from a conspiracy requires two

elements: firstly, the accused must take an affir-

mative act that would tend to defeat the purpose of

the conspiracy. This is called a disavowance of a con-

spiracy. Secondly, the disavowance of the conspiracy

must be communicated to a co-conspirator. It matters

not, what the reason is that an accused disavows a

conspiracy.

The defendant Caliguri contends that he did not

furnish monies to further the ends of the conspiracy

because he was suspicious of some of the participants

being federal agents and that prior to the completion

of the conspiracy he communicated this fact to the co-

conspirator, Dereeder.

ia

If you find that the government failed to prove

beyond a reasonable doubt that defendant Caliguri

provided monies and that he was suspicious of some of

the sellers being agents of law enforcement, and did in

fact communicate these factors to a co-conspirator, I

charge you, as a matter of law, that defendant

Caliguri had withdrawn from the conspiracy and you

must find him “‘not guilty.”’

(Hyde v. U.S., 225 U.S. 347; U.S. us. Lowell, 649

F. 2nd 950; U.S. v. Wentland, 582 F. 2nd 1022: U.S. v.

Parnell, 581 F. 2nd 1374).

APPENDIX “‘C’”’

THE TRIAL COURT’S CHARGE ON

WITHDRAWAL FROM A CONSPIRACY

One has to do with withdrawal from a conspiracy

and this instruction pertains to the defendant

Caliguri. Whether it is applicable depends, of course,

on the facts as you find them to be. The principle in-

volved does not apply and is not urged by the defen-

dant Hubert. If you conclude in this case that the con-

spiracy as charged did, indeed, exist, and if you find

beyond a reasonable doubt that the defendant

Caliguri was a member of that conspiracy, and that an

overt act took place at some time in furtherance of

that conspiracy, then you would have before you for

consideration whether Caliguri withdrew from the

conspiracy.

Withdrawal requires two elements: First, a defen-

dant must take some affirmative step either by act or

by word to defeat the purposes of the conspiracy, or to

disavow the conspiracy. This must be communicated

by him in a manner reasonably calculated to reach the

co-conspirators. The reason for the disavaowal does

not matter, it can be for any reason. But, in order to

escape responsibility and in order to invoke the

withdrawal theory, a defendant must withdraw from

the conspiracy before any overt act in furtherance of

the conspiracy has been committed. If you find that

Caliguri joined the conspiracy but later took some af-

firmative steps to disavow the conspiracy, and if you

further find that he took these steps before any overt

act by any co-conspirator was committed, then you

would find him not guilty of the conspiracy charge

because you would then have found that he had

9a

withdrawn from it. But, on the other hand, if you find

that he joined the conspiracy and he took affirmative

steps to withdraw, but that those steps were taken

after an overt act was committed, by some member of

the conspiracy, then the defense of withdrawal would

not be available to him.

I remind you again the defendant does not have

any burden of proof. The burden is on the government

to show beyond a reasonable doubt that Caliguri join-

ed the conspiracy and further that he did not take any

affirmative steps to withdraw before any overt act in

furtherance of the conspiracy was committed.’’

(734-735)

10a

APPENDIX ‘‘D”

THE TRIAL COURT’S SUPPLEMENTAL

CHARGE, DURING PETIT JURY

DELIBERATIONS, ON WITHDRAWAL

FROM A CONSPIRACY

‘‘Now with regard to the withdrawal instruction,

withdrawal from a conspiracy, I instructed you before

and repeat the instruction that if you conclude that

the conspiracy as charged did, indeed, exist and if you

conclude that the defendant Caliguri was a member of

that conspiracy, and if you further find that an overt

act took place at some time in furtherance of the con-

spiracy, then you would consider whether he, that is

Caliguri, withdrew from the conspiracy. Withdrawal

from a conspiracy requires two elements: First of all,

the defendant must take some affirmative steps either

by acts or by words to defeat the purpose of the con-

spiracy, or to disavow a conspiracy. So there must

then be some affirmative step to defeat the purposes

or to disavow the conspiracy. The second element re-

quired is that this must be communicated by the

defendant in a manner reasonably calculated to reach

the co-conspirator. The reason for the disavowal does

not matter. It can be for any reason at all. In order to

escape responsibility, though, a defendant must

“withdraw from the conspiracy before any overt act in

furtherance of the conspiracy before any overt in fur-

therance of the conspiracy has been committed. On

the other hand, and I have to give you the alternative,

if you find that he joined the conspiracy and that he

did take some affirmative steps to withdraw from it

but if those affirmative steps were taken after an

overt act had been committed by any co-conspirator,

then the defense of withdrawal would not be available

lla

to him. I remind you again, as I did before, that the

defendant does not have the burden of proof on this or

on any element of the case. The burden is and remains

on the government and in this regard is on the govern-

ment to show beyond a reasonable doubt that Caliguri

joined the conspiracy and further that he did not take

affirmative steps to withdraw before an overt act in

furtherance of the conspiracy was committed.’

(781-782).

12a

APPENDIX “E”’

PETITIONER’S WRITTEN REQUEST OF

THE TRIAL COURT TO CHARGE THE PETIT

JURY WITH THE DEFENSE OF GOVERNMENT

VIOLATION OF DUE PROCESS

As jurors in this case, you are to consider the

nature and extent of the government’s participation

in the crimes charged.

If you conclude that the governmental involve

ment in the criminal activities of this case has reached

a demonstrable level of outrageousness, you must find

the defendants ‘“‘not guilty.”’

I charge you, as a matter of law, that it is neither

necessary nor appropriate to the task of ferreting out

crime for the government to initiate and create

criminal activity. You must decide as a matter of fact

whether the government initiated the crime, en-

couraged the defendant, and provided the essential

supplies forming the basis of the charges. If so con-

cluded, then you are obligated to find the defendant

“not guilty.’’ It is fundamental fairness that will not

permit any defendant to be convicted of a crime in

which police conduct is outrageous.

Hampton v. United States, 425 U.S. 488; United

States v. Twigg, 588 F. 2d 373 (8rd Cir. 1978).