# Petition — Caliguri v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 991

## Text

Office - Suprema Court, U.S. |

Se-tess [ne

“LERK

ee ees

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1078%3A1. Public record. Not legal advice.