Opposition — Caliguri v. United States

Office - Supreme Court, U.d.

hitLeep

No. 82-1983 NOV 2% 1983

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In the Supreme Court of the Unite States —

OCTOBER TERM, 1983

Ross R. CALIGURI, PETITIONER

Vv,

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

VINCENT P. MACQUEENEY

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

|. Whether the trial! court’s charge concerning petition-

er’s alleged withdrawal from the conspiracy was proper.

2. Whether the trial court should have submitted to the

jury petitioner’s claim of “outrageous” conduct by Drug

Enforcement Administration agents in their undercover

operation.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

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

United States v. Jimenez, 622 F.2d 753 .......

United States v. Johnson, 565 F.2d 179,

ert, Genned, 430 U.S. 1070 ooo cece cecceeces

United States v. Lowell, 649 F.2d 950 ........

United States v. Nicoll, 664 F.2d 1308,

Core. rmeed 477 U.S. LEG... 2. cs sess:

United States v. Read, 658 F.2d 1225 ........

United States v. Richardson, 596 F.2d 157 ....

United States v. Russell, 411 U.S. 423 ........

United States v. United States Gypsum Co.,

ME oe oe ch cohen et wencacees

United States v. Wooten, 688 F.2d 941 .......

Statutes:

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3n the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 82-1983

Ross R. CALIGURI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-5a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 12, 1983. The petition for a writ of certiorari was filed

on June 3, 1983. The jurisdiction of this court is invoked

under 28 U.S.C. 12541).

STATEMENT

Following a jury trial in the United States District Court

for the District of Maryland, petitioner was convicted of

conspiring to possess with intent to distribute a quantity of

marijuana in excess of 1,000 pounds, in violation of 21

(1)

2

U.S.C. 846 (Count 1).! He was sentenced to six years’

imprisonment and a fine of $5,000.?

1. The evidence at trial showed that in April and May,

1981, special agents of the Baltimore District Office of the

Drug Enforcement Administration (“DEA”) posed in an

undercover operation as sellers of marijuana. In the course

of the operation, they offered to sell some 17,000 pounds of

marijuana to a group that included petitioner, Edward

Dereeder, and James Hubert.

In late April a government informant named Ronald Poe

(C.A. App. 241) called Dereeder, his former associate in

drug trafficking, and told him that he had 18,000 pounds of

marijuana for sale (id. at 391). Poe asked Dereeder if he

could collect money for the transaction (id. at 392).

Dereeder contacted Hubert, to whom he had previously

sold marijuana (id. at 390, 392). Hubert responded that he

would contact petitioner, who could buy a ton or more (id.

at 392). Hubert later told Dereeder that petitioner was

interested in buying, but first wanted to inspect the mari-

juana (id. at 393-394). Between the date of Poe’s call and

May 11, 1981, a number of other conversations took place

among members of the conspiracy, including petitioner. On

one occasion Dereeder spoke with petitioner on the phone.

Petitioner told Dereeder to go to Maryland, inspect the

marijuana, verify that the quantity was available, and

report back to him. /d. at 395. On another occasion

'In addition to petitioner, Edward L. Dereeder, James P. Hubert,

George O. Ferguson, Leslie A. Rolph, John Lane, Jr., and John

Fulgham were also indicted on three counts. Counts 2 and 3 charged

possession of marijuana with intent to distribute, in violation of 21

U.S.C. 84l(a). Dereeder, Rolph, Lane, and Fulgham pleaded guilty.

Dereeder testified at petitioner's and Hubert’s trial.

2Hubert was sentenced to four years’ imprisonment and a fine of

$5,000.

3

Hubert and Dereeder visited petitioner at his home. Peti-

tioner at that time again instructed Dereeder to go to Mary-

land and inspect the marijuana. /d. at 539. Hubert later

informed Dereeder that petitioner wanted exclusive pur-

chasing rights on the marijuana being offered for sale (id. at

402).

On May 13, a tractor trailer carrying 17,000 pounds of

marijuana used in the undercover operation was parked ata

farm house in Vienna, Maryland (C.A. App. 568-569). That

evening Dereeder told DEA agent Robert O'Leary that he

had contacted petitioner, who was going to take an “exclu-

sive,” and that petitioner would come to Maryland the next

day (id. at 175-176). On May 15, Dereeder told O’Leary that

petitioner would arrive at the Salisbury airport at noon, and

that he wanted O'Leary to meet him, which O'Leary agreed

to do (id. at 182).

Dereeder and Hubert met petitioner at the airport (C.A.

App. 183) and introduced him to O'Leary and DEA agent

Keith Miller. Petitioner asked Miller “how deep [was] the

well?” (Pet. App. 3a n.2). Miller responded that it was deep

(C.A. App. 565). Petitioner then asked O'Leary for a sam-

ple of the marijuana (id. at 188).

After the airport meeting petitioner, Dereeder, and

Hubert drove to a restaurant in Ocean City. Dereeder gave

petitioner a sample of marijuana he had taken from the

tractor trailer the previous evening, and petitioner said he

would show the sample to his people (C.A. App. 423-425).

They discussed the transportation of the marijuana and its

price, and after dinner petitioner left Maryland. During a

subsequent telephone call to Hubert petitioner told him

that he liked the marijuana, but was concerned about who

the sellers were. He asked whether Dereeder knew their

identity. Jd. at 429.

4

During the weekend of May 16-17, petitioner telephoned

Dereeder and voiced his concern that the deal might be an

ABSCAM-type operation set up by the government (C.A.

App. 432). After reassuring petitioner about the deal (id. at

434-435), Dereeder contacted a pilot and asked him to fly

petitioner to Maryland (id. at 435, 271-272). The trip was

later aborted (id. at 272, 539).

On May 18, petitioner again spoke with Dereeder by

phone, expressed continuing concern about the transac-

tion, and told him that he would not come to Maryland

until Hubert had obtained a small load as a sample and

brought it to New York (C.A. App. 436).

After that sale was consummated the next day, Hubert

and several others were arrested by DEA agents (Pet. App.

3a).

2. Prior to trial, petitioner moved to dismiss the indict-

ment on the ground that his due process rights were violated

by the conduct of the undercover operation. The district

court reserved ruling on the motion. At the conclusion of

the evidence, petitioner sought an instruction submitting

the issue of prosecutorial misconduct to the jury (Pet. App.

12a). The request was denied. After the jury returned its

verdict, the court conducted a hearing and denied the

motion to dismiss (C.A. App. 35).

The trial judge instructed %e jury concerning the defense

of withdrawal from the con: piracy. Petitioner claimed that

he had withdrawn by expressing reluctance to continue his

participation because of fear that the deal was an under-

cover operation. The court instructed the jury that “in order

to invoke the withdrawal theory, a defendant must with-

draw from the conspiracy before any overt act in further-

ance of the conspiracy has been committed.” The court

stated that “after an overt act [has been] committed, by

5

some member of the conspiracy, then the defense of with-

drawal would not be available to him” (Pet. App. 8a-9a). It

rejected a proposed instruction (id. at 6a-7a) that the

defense was available without regard to the time of with-

drawal, as long as the defendant communicated his dis-

avowal to his co-conspirators.

3. The court of appeals held that the district court's

withdrawal instruction was a “proper statement of the law”

(Pet. App. 4a). It also rejected petitioner's due process claim

that his conviction was procured through overreaching by

law enforcement authorities. The court observed that,

“[djespite the active role maintained by the Government

throughout the investigation, the D.E.A. agents did not

press a sale upon an unwilling buyer. Rather, the defend-

ants readily accepted the Government's offer” (id. at Sa).

ARGUMENT

1. Petitioner contends (Pet. 14-20) that the trial court

erred in instructing the jury that “a defendant must with-

draw from the conspiracy before any overt act in further-

ance of the conspiracy has been committed” (Pet. App. 8a).

He argues (Pet. 18) that, because the conspiracy charged did

not require the commission of any overt act, the instruction

should have allowed withdrawal at any time before termi-

nation of the conspiracy. This claim was properly rejected

by the court of appeals, for this case presented no issue of

withdrawal, and petitioner was entitled to no instruction on

the subject at all.

The general legal principles governing the defense of

withdrawal from a conspiracy are well settled. “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.” United States v.

United States Gypsum Co., 438 U.S. 422, 464-465 (1978).

6

Even after withdrawal, however, a “defendant is still liable

* * * for his previous agreement and for the previous acts of

his co-conspirators in pursuit of the conspiracy.” United

States v. Read, 658 F.2d 1225, 1232 (7th Cir. 1981); United

States v. Wooten, 688 F.2d 941, 947 (4th Cir. 1982); United

States v. Nicoll, 664 F.2d 1308, 1315-1316 & n.7 (Sth Cir.),

cert. denied, 457 U.S. 1118 (1982); United States v. Lowell,

649 F.2d 950, 957 (3d Cir. 1981). Thus in conspiracies under

18 U.S.C. 371 withdrawal will exonerate a defendant only if

no overt act has been committed. This is because, under the

statute, no offense has been committed if there is simply an

agreement unaccompanied by an overt act. Once an overt

act occurs, the offense is complete. United States v. Nicoll,

664 F.2d at 1315.3

By contrast, a drug conspiracy under 21 U.S.C. 846 is

complete upon consummation of the agreement; it does not

require commission of an overt act by a participant in the

conspiracy. The defense of withdrawal is thus significant in

Section 846 conspiracy cases only when the defendant's

disavowal of the scheme places his active membership in it

outside the period of the statute of limitations. (See note 3,

supra.) But this case presents no statute of limitations issue.

And petitioner’s withdrawal (if it in fact occurred) plainly

came “too late to avoid liability for the conspiracy.” United

States v. Nicoll, 664 F.2d at 1315. Petitioner does not

challenge the correctness of the instructions regarding the

formation of the agreement or the sufficiency of the evi-

dence to establish his initial membership in the conspiracy.

Petitioner’s numerous conversations and meetings with

undercover DEA agents and his co-conspirators, for the

}Withdrawal may once again become relevant if the time between

withdrawal and indictment exceeds the statute of limitations. See, e.g.,

United States v. Read, 658 F.2d at 1233; United States v. Lowell, 649

F.2d at 955-960; United States v. Richardson, 596 F.2d 157, 164 (6th

Cir. 1979).

7

purpose of settling the details of the drug transactions,

consummated the agreement on which the conspiracy

charge was based, and precluded the alleged subsequent

withdrawal from absolving him of criminal liability.‘

Even if, as in Section 371 cases, an overt act were required

to complete the conspiracy offense, petitioner can have no

complaint, since the trial court instructed the jury to acquit

petitioner if he took steps to disavow the conspiracy before

any overt was committed (Pet. App. 8a).°

2. Petitioner also maintains (Pet. 6-14) that the trial

court erred in refusing to submit to the jury the question

whether the government engaged in improper conduct. This

claim is clearly without merit.

‘There is no substance to petitioner's contention (Pet. 18-20) that the

instruction requiring withdrawal before the commission of any overt

act deprived him of a “partial defense.” Although withdrawal may

preclude liability for substantive acts occurring after the withdrawal, it

does not affect the defendant's liability for the conspiracy. United States

v. Nicoll, 664 F.2d at 1315n.7. Here the only relevant act occurring after

petitioner's alleged withdrawal was the May 19, 1981 sale of a small

sample load — an act in fact directed by petitioner. Petitioner was not

convicted on any substantive charge based on that sale.

$Petitioner maintains (Pet. 19), without elaboration, that the court of

appeals’ decision conflicts with this Court's decision in United States v.

United States Gypsum Co., supra, as well as the decisions of several

courts of appeals. Gypsum has no bearing on this case, however;

withdrawal was an issue in that case because there was a question

whether the defendant had continued to participate in the conspiracy

within the period of the statute of limitations. See also United States v.

Read, supra. Nothing in Gypsum modified the rule that, except for

statute of limitations purposes, the defense of withdrawal is not availa-

ble once all the elements of a conspiracy have coalesced.

In United States v. Jimenez, 622 F.2d 753, 757 (Sth Cir. 1980), also

cited by petitioner (Pet. 19), the court merely approved a jury instruc-

tion tailored to the facts of that case.

8

The issue whether the government has engaged in con-

duct so “outrageous” as to violate due process is a question

of law for the trial judge, not a factual matter for the jury.

As the First Circuit explained in United States v. Johnson,

565 F.2d 179, 181-182 (1977), cert. denied, 434 U.S. 1075

(1978):

Under any view, it is the court’s province to decide

whether defendant's case was such that, if believed, it

would fall into the exceptional category mentioned by

Justice Powell[in Hampton v. United States, 425 U.S.

484 (1976)]. If such a determination were left to the

jury’s unguided discretion, as under the instruction

proposed here, the entrapment defense * * * would be

transformed into an invitation to twelve jurors to con-

sider in any case whether defendant was treated

“fairly.” Whatever its possible role in resolving con-

tested factual issues raised by an entrapment defense,

the jury is not equipped and should not be permitted to

speculate on whether particular facts do or do not

amount to fundamental fairness.

See United States v. Russell, 411 U.S. 423, 441 (1973)

(Stewart, J., dissenting) (“the determination of the lawful-

ness of the Government’s conduct must be made — as it is

on all questions involving the legality of law enforcement

methods — by the trial judge, not the jury”); Hampton v.

United States, 425 U.S. 484, 497 (1976) (Brennan, J., dis-

senting) (same). The trial judge therefore properly refused

to submit to the jury the question whether the government

had engaged in overreaching, creating a due process bar to

prosecution.

In any event, as a comparison of this case with Hampton

makes clear, the evidence of governmental “misconduct”

was wholly insufficient to warrant an instruction on that

defense even if the matter were not for the judge to decide.

In Hampton the petitioner claimed that government agents

9

not only bought the heroin he was convicted of distributing,

but also supplied it to him. A majority of this Court con-

cluded that those facts did not amount to a denial of due

process. 425 U.S. at 490 (opinion of Rehnquist, J.), 491-492

(opinion of Powell, J.). Here the facts disclose nothing more

than an offer of sale by the government to a defendant who

was willing to purchase more than eight tons of marijuana.

“While [there] may some day be * * * a situation in which

the conduct of law enforcement agents is so outrageous that

due process principles wauld absolutely bar the government

from invoking judicial processes to obtain a conviction,

* * * the instant case is distinctly not of that breed.” United

States v. Russell, 411 U.S. at 431-432.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

VINCENT P. MACQUEENEY

Attorney

NOVEMBER 1983

DOJ-1983-11