Petition — Johnson v. United States

| Office - Supreme Court, U.S.

83 : FILED

; 3 6 0 SFP 2 1983

IN THE ALEXANDER a STEVAS.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

JERRY THOMAS JOHNSON,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT,

PETITION FOR WRIT OF CERTIORARI

PHILIP A. DeMASSA

Attorney at Law

2150 First Avenue

San Diego, California 92101-2195

Telephone: (619) 236-0897

Attorney for Petitioner

JERRY THOMAS JOHNSON

QUESTION PRESENTED FOR REVIEW

IS a defendant entitled to a

dismissal of the charges against him due

to outrageous governmental conduct of

supplying drugs or narcotics to him for

ingestion, injection, or consumption?

INDEX

Question Present for

Review

Table of Cases

Opinion Below

Jurisdiction

Constitutional Provision

at Issue

Statement of the Case

Reason for Granting

the Writ

Conclusion

Appendix "A" - Memorandum

Decision of the

United States

of Appeal for

Ninth Circuit

May 11, 1983

Appendix "B" Order of the

United States

of Appeal for

Ninth Circuit

July 27, 1983

ii

Court

the

Court

the

18

30

TABLE OF CASES

Hampton v. United States,

425 U.S.

Malinski v. New York,

329 Ucts Seas Gal

(1945)

Mapp v. Ohio, 367 U.S.

643, 659 (1961)

Olmstead v. United States,

U.S. 438, 485

(1928)

Rochin v. California,

342 U.S. 165 (1952)

United States v. Archer,

486 F, > -675

(2a Cir. 1973)

United States v. Russell,

411 U.S. 42

United States v. Twigg,

568 F.coad 373 346-382

(3rd Cir. 1978)

Statues:

18 U.S.C. Section 2

18 U.S.C. Section 13

21 U.S.C. Section 844

21 U.S.C. Section 845

Page

24,25,28

22,23

20,26

22,23

19,21,22,

25,26

26

21 U.S.C. Section 846

Penal Code Section 647 (f)

California Vehicle Code

Section 23152

California Vehicle Code

Section 23153

California Health and

Safety Code

Section 111352

iv

21

21

21

21

21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

NO,

JERRY THOMAS JOHNSON,

PETITIONER,

«wes

UNITED STATES OF AMERICA,

RESPONDENT,

PETITION FOR WRIT OF CERTIORARI

Petitioner, Jerry Thomas

Johnson, prays that a writ of certiorari

issue to review the Memorandum Decision

of the United States Court of Appeals,

for the Ninth Circuit, filed May 11,

1983.

OPINION BELOW

The opinion of the United States

Court of Appeals for the Ninth Circuit

and the Order of the United States Court

of Appeals for the Ninth Circuit denying

the Petition for Rehearing and Suggestion

for Rehearing In Banc are reproduced in

the Appendix attached hereto.

JURISDICTION

This Court's jurisdiction is invoked

‘inder 28 U.S.C. Sections 1254 and 2101,

this being a petition arising out a

federal criminal conviction involving a

constitutional issue. The petition is

filed within 60 days of denial of

petitioner's petition for rehearing and

suggestion for hearing in banc by the

United States Court of Appeals for the

Ninth Circuit filed on July 27, 1983.

CONSTITUTIONAL PROVISION AT ISSUE

Amendment V:

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence to

be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself,nor

be deprived of life, liberty, or

3

property, without due process of law; nor

shall private property be taken for

public use, without just compensation.

STATEMENT OF THE CASE

In the latter part of 1980, Agent

Magno of the Drug Enforcement

Administration (DEA) was working in an

undercover capacity in Brazil posing as a

narcotics courier for Joao Magalhaenes.

(R.T. 457-459). In October, Magalhaenes

sent Agent Magno to Miami with some

jewels that Magno was supposed to deliver

for sale in the United States. He also

gave Magno a card with several phone

numbers on it. Margo was supposed to

call Carlos concerning the delivery of

narcotics. Upon his arrival in Miami,

Magno called one of the phone numbers and

spoke to "Carlos". He met "Carlos" and

another man the next day. "Carlos" was

defendant Carlos Rubio. (R.T. 460-462,

480-482). (Other defendants who are not

part of this petition will be so

referred).

At his first meeting with Magno,

4

Rubio told him that he could not discuss

narcotics in the presence of his

companion, since his companion was just

there concerning the jewels. (R.T. 465).

Magno met Rubio the following day for

lunch, and they discussed the purchase of

narcotics by Rubio. Rubio discussed

purchasing ten kilograms of cocaine per

delivery at $35,000.00 per kilogram, with

$10,000.00 per kilogram to be paid up

front. Rubio was happy with the deal,

but said that he was unable to consummate

it for awhile because of other pending

business. (R.T. 465-466).

Working with Agent Magno in Florida

was an undercover informant, Ramon

Herrera. (R.T. 466). Rubio told Herrera

that his people could handle 30 kilos.

He also told Herrera that he was related

to the Gambino organized crime family in

New York. (R.T. 561-562). The DEA never

verified this information.

Magno and Herrera met Rubio in

December 1980 in Fort Lauderdale and

discussed possible cocaine transactions.

(R.T. 467). Rubio negotiated a lower

price of $33,000.00 per kilo for 100 kilos

5

a month. (R.T. 567). Arrangements were

made for Rubio to go to Brazil to see a

sample sometime in January. (R.T. 468).

Magno made it clear to Rubio that if he

did not want to do the deal, he should

not do it. (R.T. 488). Rubio did not go

to Brazil to look at the sample.

Agent Magno met with Rubio in April,

1981 in Miami. (R.T. 469, 498, 500).

Rubio wanted Magno to front him the

cocaine and Magno refused. (R.T. 496).

Magno told Rubio that if he did not have

the money to do the deal the way they had

discussed it, Rubio would have to deal

with Magno's associate in the United

States. (R.T. 469). DEA Agent Mazzilli

was playing the role of Magno's associate

in the United States who had cocaine for

sale that had already been delivered to

the United States from Brazil. (R.T.

534, 949).

Mazzilli met with Rubio on April 16,

1981, at Lester's Diner in Fort

Lauderdale. Present with Rubio was a man

named Pedro. Rubio was using the name

Carlos Gambino. (R.T. 845-846). At this

6

meeting, Rubio said that he and Pedro had

customers from the West Coast interested

in large quantities of cocaine. They

wanted to purchase 2 kilos at $45,000.00

a kilo, delivered in Florida. Mazzilli

told Rubio to contact Herrera when Rubio

had his money together. (R.T. 574-575,

847-848). No deal was consummated at

that time.

On June 1, 1981, Herrera met with

Rubio and a man named Carlos whose last

name was unknown (Lnu). They said that

they had people available who wanted to

do multi-kilo deals. A further meeting

was arranged for the next day. (R.T.

571-578).

On June 2, 1981, Agent Magno and

Herrera met nubio, Carlos Lnu, and

co-defendant Garrison at the Holiday Inn

in West Palm Beach. Rubio said that

Garrison was a big marijuana dealer

interested in buying cocaine. Rubio

asked Magno to front Garrison a kilo of

cocaine. Magno refused. Garrison wanted

Magno to go to California to sell

cocaine. Magno said that he would if

7

Garrison would supply plane tickets and

expense money. No deal was made at that

time. (R.T. 471-474, 578). Several

hours after the meeting broke up, Rubio

called Herrera. Rubio told Herrera that

they would provide the plane tickets and

asked Herrera to convince Magno to do the

deal. (R.T. 583-584).

On June 4, 1981, Rubio, Garrison, and

Carlos Lnu met with Herrera, Agent

Mazzilli, and Agent Georges at the Banana

Boat Lounge. Garrison said that he had a

63-person distribution organization, that

he was converting from distributing

marijuana to cocaine, and that he wanted

to start with 10 kilos of cocaine and

work up to approximately 100 kilos per

month. (R.T. 852-853, 980). Rubio and

Garrison said that Garrison would pay the ~

agents' expenses to go to California and

that they would have buyers ready for 10

kilos. Rubio said that he would be in

touch with Herrera to give Mazzilli the

plane tickets and expense money. (R.T.

854-855).

On June 6, 1981, Carlos Lnu delivered

8

to Mazzilli four round-trip tickets to San

Diego, $4,700.00 in cash and a note from

Rubio containing the phone numbers where

he and Garrison could be reached in San

Diego. (R.T. 587-589, 856).

On June 11, Agents Mazzilli and

Georges, with Herrera, met Rubio,

Garrison and co-defendant Lawson at the

Butcher Shop Restaurant in San Diego.

Garrison and Lawson said that they had 16

one kilo customers lined up. Garrison

requested a kilo of cocaine to use as a

sample to show the customers. Mazzilli

was displeased and told them he thought

the deal was already set and all this

sitting around was costing him money.

Garrison offered to provide Mazzilli with

additional expense money to sit tight.

Garrison provided Mazzilli with an old

Cadillac to use for transportation. The

agents and Herrera returned to the hotel.

(R.T. 590-592, 863-869).

Later that same day, at about 7:00

p.m., there was another meeting at the

Butcher Shop between Mazzilli, Garrison,

and Lawson. Garrison gave Mazzilli

9

$3,500.00 and the key to a Mercedes to

use for transportation. Mazzilli still

refused to front the cocaine. However,

he told them that if they sold two kilos,

he would front the third one. (R.T.

872-873).

On June 12, 1981, Mazzilli had

several phone calls with Garrison. He

set up a meeting for 12:00 to 12:15 p.m.

at Anthony's Restaurant, across the

street from the agent's hotel. (R.T.

878-879). Garrison and Lawson met with

the agents and discussed the deal,

including quantity and quality of the

cocaine. After the meeting, Mazzilli had

a phone conversation with Rubio, who said

the deal was set, that they had about

$70,000.00 together. (R.T. 890-895).

On June 13, 1981, at about 11:15

a.m., Mazzilli had a phone conversation

with Garrison. He said that he had a

lady who wanted two kilos and a man from

Florida who wanted a kilo. (R.T.

895-896). Arrangements were made to meet

at noon. At about 12:15 p.m., Agent

Mazzilli and Georges met Lawson and Rubio

10

in front of Anthony's. Rubio asked if

the agents were ready to deliver. They

asked Rubio if they were ready to show

the money. Rubio said that they were.

(R.T. 1389-1390). At that point, Lawson

introduced defendant Freydberg and

petitioner Johnson, who were standing

nearby. Lawson said that Johnson and

Freydberg were a set of purchasers. Just

then, Garrison arrived in a vehicle with

defendant Christie. Defendant Unger and

Walker were following Christie in another

car. Garrison told Agent Georges tHat

Unger, Christie, and Walker were another

set of purchasers. (R.T. 1392-1395).

While standing in the parking lot of

Anthony's, petitioner and Freydberg

showed Mazzilli $50,000.00 contained in

an envelope in the trunk of Freydberg's

car. Johnson placed the money ina

briefcase. (R.T. 898-899).

Mazzilli, Freydberg, and petitioner

joined Rubio, Unger, Christie, Walker,

Garrison, and Lawson in front of the

Holiday Inn across the street from

Anthony's. Mazzilli addressed the entire

11

group. He told them that due to the

large number of people, he would take one

set of purchasers to the room to

negotiate while the rest stayed in the

coffee shop. (R.T. 1395). Mazzilli and

Geerges then took petitioner and

Freydberg to the undercover room. (R.T.

901, 1395-1397).

The meeting in the undercover room

was video taped. At the meeting,

petitioner and Freydberg showed the money

again. (R.T. 1396-1397). During the

meeting, Freydberg said that he could do

100 kilos a month. (R.T. 596-598).

Petitioner took a tall glass and some

chlorox out of his briefcase. After a

very short meeting, petitioner and

Freydberg were escorted down to the hotel

coffee shop to wait while Mazzilli

negotiated with the second set of

purchasers. (R.T. 1396-1397). Agents

Mazzilli and Georges went with petitioner

and Freydberg to the coffee shop, where

they sat at a table. Also present,

sitting about fifteen feet away, were

Rubio, Unger, Walker, Christie, Garrison,

and Lawson. Mazzilli asked everybody at

12

that table if they were ready to do their

deal. Unger and Walker said they were

nervous about doing a deal in a hotel.

Unger said that she preferred doing the

deal at her house and that she did not

like to have the cocaine and the money

together at one place. Mazzilli assured

her that they could do the transactions

separately if she so desired. Unger and

Christie then went with Mazzilli to look

at the cocaine. (R.T. 910-912).

Unger and Christie were video taped

while they were meeting with Mazzilli.

Unger and Christie were shown a kilo of

cocaine. Unger chopped up some of the

cocaine and placed it in a glass of

chlorox. The agents encouraged Unger to

inhale cocaine, to "stick their nose in

the bag," and to take a “whack at it."

Unger did inhale an amount of cocaine in

the presence of the agents.

At about 4:15 petitioner Johnson and

Freydberg returned to the Holiday Inn.

Petitioner went to the room with Mazzilli

while Freydberg stayed at his car with

George. (R.T. 917, 1414, 1415).

13

Johnson's meeting with Mazzilli was video

taped. At the beginning of the

conversation petitioner expressed

dissatisfaction with doing the cocaine:

transaction. During the approximate 30

minutes of video tape, the agents

encouraged petitioner to nasally ingest

cocaine for the purpose of determining

the quality of the cocaine. During this

meeting, petitioner did a chlorox test

and a burn test of the cocaine. (R.T.

928-930). Petitioner also ingested some

cocaine. The cocaine was not acceptable

to Johnson because its cosmetic

appearance was not right for his

customers and distributors. (R.T. 970).

As petitioner was leaving the room he was

placed under arrest.

Petitioner was convicted by jury

trial of conspiracy to possess with

intent to distribute cocaine. 21 U.S.C.

Section 846 and Section 841l(a)(1). He

did not testify.

At a post conviction hearing Motion

to Dismiss Due to Outrageous Governmental

Misconduct, DEA Agent Mazzilli, in

14

charge of the investigation, indicated

that a telex was sent to Washington for

permission during the investigation to

provide to a defendant a one gram sample

of cocaine and allowing a four kilo

cocaine flash amount to be shown the

potential defendants. (R.T. 2958).

Washington DEA Headquarters sent a

teletype back to the agents on June ll,

indicating the Department's permission to

distribute a one gram sample to a

defendant. (R.T. 2959-2960).

Drug Enforcement Administration

guidelines indicate that undercover

operations should not include the

furnishing of a controlled substance

except in extraordinary cases. (R.T.

2168).

Mazzilli further answered at the

dismissal hearing:

(By defense counsel)

"Q All right. The word, use the

word 'furnished,' is that defined

in any D.E.A. report?"

(DEA Agent Mazzilli)

"A No, it is not.

15

Q What does the word ‘furnished’

mean to you in the context of a sting

operation like this?

A Delivered to.

Q What do you mean ‘delivered to'?

A Hand to. Delivered to.

Q Does that allow you to allow a

defendant to use the drugs?

A Yes, sir. If he chooses to.

Q All right. Are there any

regulations about the allowance of

agents to allow potential defendants

to ingest or use drugs?

A Whatever regulations there are

concerning that, you have a copy of.

Q So other than the copies which

have been marked defendants' Exhibit

'A,' there are no other regulations

regarding the allowance by agents of

potential defendants in using drugs?

A That is correct.

Q So, if a defendant wanted to

test a drug by another method other

than ingesting it, you would allow

him to do that; is that correct?

A That's correct.

16

Q So if he wanted to inject it

hypodermically intravenously, you

would allow him to do that?

A Absolutely. What he wants to

put in his system is up to himself.

Q And there have been no

guidelines formulated nor has there

been any training given to you

agents to try to have or attempt to

dissuade a potential defendant from

using drugs as a method of testing?

A Absolutely none.

Q You have been to no workshops,

no lectures, no seminars and have

received no guidelines or training

in that regard?

A That is absolutely right."

(R.T. 2990-92).

The district court denied

petitioner's motion to dismiss. This

ruling was upheld by the Ninth Circuit

Court of Appeals.

17

REASONS FOR GRANTING THE WRIT

I

A DEFENDANT IS ENTITLED TO A

DISMISSAL OF THE CHARGES

AGAINST HIM DUE TO OUTRAGEOUS

GOVERNMENTAL CONDUCT OF

SUPPLYING DRUGS OR NARCOTICS

TO HIM FOR INGESTION, INJECTION

OR CONSUMPTION.

A. Due process principles of the Fifth

Amendment are a bar to prosecution when

the government intentionally supplies

drug or narcotics to a defendant and

encourages his consumption of them.

The testimony of DEA Agent Mazzilli

makes clear that the government

exercises no controls, training, or

safeguards regarding its avowed policy of

allowing drug agents to encourage a

potential defendant to use drugs, or,

ultimately, injecting heroin so that a

drug investigation may be successfully

completed. Such a policy is repugnant to

fundamental and traditional concepts of

due process.

The stated governmental policy as

18

espoused in this case, coupled with the

actual encouragement of DEA agents that

petitioner and later two female

defendants to ingest drugs for purposes

of testing constitutes conduct so

outrageous that due process principles

would absolutely bar the government from

invoking judicial processes to obtain a

conviction.

A majority of this Court has held

that an otherwise disposed defendant

cannot claim a defense of entrapment when

the government agents supply an

essential, legal, but difficult to obtain

chemical ingredient to the defendant.

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

(1973).

Mr. Justice Rehnquist, writing for

the Russell majority, held that there may

be a limit to which the majority would

not tolerate law enforcement excess, and

to which a due process defense would

apply:

"While we may some day be presented

with a situation in which the conduct

of law enforcement agents is so

19

outrageous that due process

principles would absolutely

bar the government from

invoking judicial processes

to obtain a conviction, cf.

Rochin v. California, 342 U.S.

165 (1952), the instant case is

distinctly not of that breed".

411 U.S. 431-32.

The Court's example of outrageous

government conduct, Rochin v. California,

supra, reveals an extreme example of

police conduct which the Court could not

countenance under the Due Process Clause.

Rochin was forcibly removed from his

residence and taken to a hospital for a

stomach pumping to force the disgorging

of two capsules Rochin had taken. The

Court recognized its "responsibility" to

decide whether under the Due Process

Clause court proceedings "offend those

canons of decency and fairness which

express the notions of justice of

English-speaking peoples even toward

those charged with the most heinous

offenses". 342 U.S. at 169, citing

Malinski v. New York, 324 U.S.

20

401, 417 (1945). (Frankfurter, J.,

concurring).

The Russell court carefully pointed

out that federal Agent Shapiro did not

"violate any federal statute or rule or

commit any crime in infiltrating the

respondent's drug enterprise". 411 U.S.

at 430.

In the instant case, the federal

agents violated both federal and state

penal statutes by allowing petitioner and

others to become under the influence of

narcotics and/or drugs. California

Penal Code Section 647(f), California

Vehicle Code Sections 23152, 23153,

California Health and Safety Code Section

11352, Title 18 U.S.C. Sections 2, 13,

Title 21 U.S.C. Sections 844, 845, 846.

While eschewing the availability

of the due process defense, Russell did

make a finding that the conduct of law

enforcement as to Russell stopped far

short of violating the Due Process Clause

of the Fifth Amendment. 411 U.S. at 432.

The Court also affirmed its

Constitutional responsibility to oversee

21

the Executive Branch in the enforcement

of the laws "subject to applicable

constitutional and statutory limitations

and to judicially fashioned rules to

enforce those limitations." 411 U.S. at

435.

Several months after Russell, Judge

Friendly expressed extreme distaste for

governmental agents engaging in crimes in

violation of state or federal law.

United States v. Archer, 486 F.2d 670,

674-675 (2d Cir. 1973). Judge Friendly

cited Mr. Justice Brandeis dissent in

Olmstead v. United States, 277 U.S. 438,

485 (1928) as applicable to the facts in

Archer:

"'"Decency, security, and liberty

alike demand that government

officials shall be subjected to

the same rules of conduct that

are commands to the citizen. In

a government of laws, existence of

the government will be imperilled

if it fails to observe the law

scrupulously. Our government is

the potent, the omnipresent

22

teacher. For good or for ill, it

teaches the whole people by its

example. Crime is contagious.

If the government becomes a

lawbreaker, it breeds contempt

for law; it invites every man

to become a law unto himself;

it invites anarchy. To declare

that in the administration of

the criminal law the end justifies

the means-to declare that the

government may commit crimes in

order to secure the conviction

of a private criminal-would bring

terrible retribution. Against

that pernicious doctrine this

court should resolutely set

its face.” 486 F.2d 674-675.

Although not deciding Archer on the

due process issue, Judge Friendly felt

that the Olmstead reasoning would

forcefully apply:

"...there is certainly a

limit to allowing governmental

involvement in crime. It would

be unthinkable, for example, to

23

permit government agents to

instigate robberies and beatings

merely to gather evidence to

convict other members of a gang

of hoodlums. Governmental

‘investigation' involving

participation in activities that

result in injury to the rights of

its citizens is a course that

courts should be extremely

reluctant to sanction.

Prosecutors and their agents

naturally tend to assign great

weight to the societal interest

in apprehending and convicting

criminals; the danger is that

they will assign too little to the

rights of citizens to be free

from government-induced

Criminality.'" 486 F.2d at 676-677.

Hampton v. United States, 425 U.S.

484 (1976) has not abrogated the

availability of the due process defense.

Where Hampton was convicted despite his

claim that the heroin had been supplied by

a government informer and then sold by

24

Hampton to an undercover agent, Mr.

Justice Rehnquist's plurality opinion,

joined by Chief Justice Burger and Mr.

Justice White, ruled out the fundamental

fairness, or due process, defense. The

plurality held that a defendant's remedy

relative to acts of government agents

"lies solely in the defense of

entrapment". 425 U.S. at 490.

Mr. Justice Powell, joined by Mr.

Justice Blackmun, although concurring in

the plurality result, refused to agree

that fundamental fairness embodied in the

guarantee of due process would not be an

available defense. Id. at 493-494.

Mr. Justice Brennan, joined by Mr.

Justice Stewart and Mr. Justice Marshall,

dissented. The dissent would hold that

the police activity constituted

entrapment as a matter of law. Id. at

497. The three dissenters also

concluded that Russell does not foreclose

a bar to conviction under due process

principles. The dissent found the police

activity in Hampton to be "beyond

permissible limits". 425 U.S. at 497.

25

See also, United States v. Twigg, 588 F.2d

373, 380-382 (3rd Cir. 1978).

Similar to the outrageous extraction

of suspected drugs as condemned in

Rochin, supra, the conduct of law

enforcement in petitioner's case to

encourage the consumption of drugs as a

law enforcement technique is so

outrageous that due process would

absolutely bar petitioner's conviction.

The furnishing of narcotics to defendants

for use is hardly the "limited

participation” sanctioned in Russell,

supra, 411 U.S. at 432.

B. The Court should exercise its

supervisory powers and refuse to

countenance the outrageous law

enforcement practice of supplving

drugs or narcotics to potential

defendants for consumption.

The Court has given deference to law

enforcement's “all but impossible task"

of investigating drug offenses. United

States v. Russell, supra,:at 432. Russell

argued that the judicially devised

exclusionary rule regarding illegal

26

searches and seizures should also

proscribe the activity of agents in

supplying necessary chemicals to him

which aided to his conviction.

The Court rejected the use of its

supervisory power under such a theory,

reasoning that the "principal reason

behind the adoption of the exclusionary

rule was the government's 'failure to

observe its own laws.'" 411 U.S. at 430

citing Mapp v. Ohio, 367 U.S. 643, 659

(1961). The Court pointed out that the

government agent did not violate any

federal statute or rule or commit any

crime in that investigation. Id.

The Court did recognize that it had

the ultimate supervisory authority over

the Executive Branch:

"The execution of the federal

laws under our Constitution is

confided primarily to the

Executive Branch of the

Government, subject to

applicable constitutional and

statutory limitations and to

judicially fashioned rules to

27

enforce those limitations."

411 U.S. at 435.

A majority of the Court has stated

that an available defense based upon the

Court's supervisory power is viable.

Hampton v. United States, supra, at

494-497 (Powell, J., Blackmun, J.,

concurring, Brennan, J., Stewart, J.,

Marshall, J., dissenting.)

Based on the record in this case,

drug agents are given no responsible

guidelines, training, regulations,

workshops, lectures, or seminars to aid

them in their zealous pursuit of

suspected criminal traffickers when drugs

are supplied for consumption by a

potential defendant. There is absolutely

no indication of medical or chemical

expertise so that an unwary consumer who

is administered phencyclidine or cocaine

may be properly supervised.

The government cannot be allowed

under the rubric of an effective tool to

combat crime the pseudo-medical practices

of drug agents whose only interest is

the ferreting out of crime. To condone

28

such activity is to say the end justifies

the means. To sanction unlawful activity

in the pursuit of those dealing in

unlawful activity is to allow the Court

to sanction governmental "'failure to

observe its own laws,'" 411 U.S. at 430,

citing Mapp v. Ohio, supra. Under its

supervisory power, the Court should

reverse petitioner's conviction due to

outrageous governmental conduct.

29

CONCLUSION

For all the reasons stated herein,

petitioner respectfully requests this

Court to grant the writ prayed for and

review the decision below.

DATED: Al yeutT 30, /923

wher LIP A. ==

Attorney for Petitioner

JERRY THOMAS JOHNSON

30

EXHIBIT "A"

(Not to be published in official reports)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

)

) Nos.

Plaintiff- ) 82-1165;

Respondent, ) 82-1166;

Vv. ) 82-1167;

) 82-1168;

JERRY THOMAS JOHNSON, ) 82-1349

JEFFREY A. WALKER, )

CARLOS RUBIO-AMORROSTA, ) D.C. No.

LEAH D. CHRISTIE, and ) CR81-854

MICHELLE UNGER, )

)

Defendants- ) MEMORANDUM

Appellants. )

)

Appeal from the United States District

Court for the Southern District of

California

Judith N. Keep, District Judge,

Presiding

Argued and submitted

December 8, 1982

Before: TANG, SCHROEDER and POOLE,

Circuit Judges.

Appellants Johnson, Rubio-Amorrosta,

Christie and Unger appeal their

convictions of conspiracy to possess

cocaine with intent to distribute, a

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violation of 21 U.S.C. Section 846 and

Section 84l(a)(1). Walker appeals his

conviction of conspiracy to possess

cocaine, a violation of 21 U.S.C. Section

846 and Section 844. Christie and

Rubio-Amorrosta appeal their convictions

of using a telephone in facilitating the

commission of a felony, a violation of 21

U.S.c. Section 843(b).

I. Outrageous Government Misconduct

Appellants argue that the indictments

should have been dismissed because

outrageous government misconduct violated

their rights to due process.

The question of outrageous

government misconduct is a question of

law. U.S. v. McQuinn, 612 F.2d 1193,

1196 (9th Cir.), cert. denied, 445 U.S.

955 (1980). In United States v.

Bagnariol, 665 F.2d 877 (9th Cir. 1981),

cert. denied, 102 S.Ct. 2040 (1982), we

recognized that this defense could be

available even to a defendant predisposed

to the charged crime. Id. at 882. We

noted, however, that

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"This court has emphasized that

the due process channel which

Russell kept open is a most narrow

one, to be invoked only when the

government's conduct is so grossly

shocking and so outrageous as to

violate the universal sense of

justice." (citations omitted).

Id. See also United States v. Abushi, 682

F.2d 1289, 1297 n.4 (9th Cir. 1982).

This district court applied the

Bagnariol standard and concluded that

there was no governmental misconduct in

this case. That the government assumed

the role of seller and provided illegal

drugs for testing certainly calls for

close scrutiny by the courts. But the

district court's findings that the DEA

investigation was directed at large

dealers and that the roles taken by the

DEA agents in the case were reasonable in

that context are sound.

The trial court found no coercion of

Or pressure upon Rubio. The court also

found from viewing the videotapes of the

transactions between agents and ;

appellants that the appellants did not

appear threatened or intimidated by the

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agents. These findings are not clearly

erroneous. The district court's

conclusion on this issue is consistent

with our decisions in Abushi, Bagnariol,

and McQuinn. We affirm on this issue.

II. Conspiracy

Appellants argue that all conspiracy

convictions should be reversed because

the government failed to prove a specific

agreement between the appellants

(prospective purchasers) and the agents

(prospective sellers).

Appellants argue that this case is

controlled by United States v. Melchor-

Lopez, 627 F.2d 886 (9th Cir. 1980).

Melchor-Lopez is distinguishable. In

Melchor-Lopez, the evidence did not

Support an inference that any two persons

involved in that case had agreed to

anything. The facts of this case are

more similar to the facts supporting the

conspiracy conviction in United States v.

Sangmeister, 685 F.2d 1124, 1126 (9th

Cir. 1982) ("Jones agreed to find

suppliers of cocaine, which Fair would

deliver to buyers, and Jones arranged

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Sangmeister for him to sell cocaine to

Fair."). In the case before us, the

evidence supports a finding of agreements

between Unger and Christie to buy; and

between Johnson and Freydberg (an

indicted co-conspirator) to buy; and

between Rubio, Garrison and Lawson to

serve as intermediaries between the

sellers and the buyers.

The fact that the ultimate

transactions between the buyers and

seller-agents were not completed does not

compel reversal. The record proved

agreement to accomplish an illegal

objective on the part of each of the

appellants. It proved as well overt acts

taken in furtherance of the conspiracy,

which acts, in themselves, need not be

criminal. See United States v. Croxton,

482 F.2d 231, 233 (9th Cir. 1973). Their

conspiracy convictions are therefore

affirmed.

Walker, the only appellant convicted

of the lesser offense of conspiracy to

possess cocaine, argues that his

conviction must be reversed, since no

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other defendant was convicted of the

lesser included offense of conspiracy to

possess cocaine (without intent to

distribute). This argument must fail.

Walker's conviction is clearly a lesser

included offense within the offense of

which the other appellants were

convicted. The convictions of all the

other appellants necessarily include a

finding that they each agreed to possess

cocaine. That no other defendant was

convicted only of the specific crime of

conspiracy to possess, without the

further intent to distribute, does not

negate the finding by the jury that the

defendant agreed, at the least, to

possess cocaine. i/

III. Multiple Conspiracies

Christie argues that because the

government proved three or more

1/ The trial court properly directed the

Jury only to consider the lesser-included

offense of agreement to possess if it

found an individual not guilty of the

greater charge. Both charges included

agreement to possess cocaine.

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conspiracies, though it charged only

one, the trials of the different groups

should have been severed to avoid

prejudice. Because of the discrepancy in

the evidence against the various groups

of defendants and the possibility of

prejudice, Christie argues that a

severance should have been granted.

The government argues that there was

a single conspiracy and that Rubio,

Garrison and Lawson (not the government

agents) were the core, and the rest of

the appellants were brought in by them.

To prove a single overall conspiracy,

rather than several limited ones:

The government must produce

enough evidence to show that each

defendant knew or had reason to

know the scope of the distribution

and retail organization involved

with the illegal narcotics,

derived from the operation were

dependent upon the success of the

entire venture.

United States v. Perry, 550 F.2d 524,

528-29 (9th Cir.), cert. denied, 434 U.S.

827 (1977) (emphasis in original).

Severance was not required in this

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case because of any variance between the

indictment and the evidence presented by

he government. Although a single

conspiracy may not have been proved,

there was evidence that the "defendants

had reason to know the scope of the

retail and distribution organization."

The only question was whether they knew

that the benefits each derived "were

dependent upon the success of the entire

venture." There was evidence presented

in this regard. We cannot so easily say

that one conspiracy was not present. Cf.

Kotteakos v.United States, 328 U.S. 750,

768 (1946) ("the jury could not possibly

have found, upon the evidence, that there

was only one conspiracy"). Moreover, the

trial judge eliminated any potential for

prejudice by “scrupulously safeguard (ing)

each defendant individually, as far as

possible, from loss of identity in the

mass." Kotteakos, 328 U.S. at 777.

Under these circumstances, the trial

judge did not abuse her discretion by

refusing to sever the trial. See United

States v. Gee, 695 F.2d 1165, 1169-70

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(9th Cir. 1983) (discussing showing

needed for severance). Even assuming a

single conspiracy was not proved, the

variance between the indictment and the

proof must affect the substantial rights

of the parties. United States v. Kenny,

645 F.2d 1323, 1334 (9th Cir.),

cert. denied, 452 U.S. 920 (1981).

Reversal is appropriate only if

defendants prove prejudice. United

States v. Durades, 607 F.2d 818, 819 (9th

Cir. 1979). Since no such prejudice has

been proved here, no error was committed

in failing to sever the trial.

IV. Voir Dire

Appellants argue that the void dire

of the jury was so inadequate that

appellants were denied a fair and

impartial jury.

Reversal of a trial judge's voir

dire is warranted when there has been an

abuse of discretion. United States v.

Pimentel, 654 F.2d 538, 542 (9th Cir.

1981). If the questions asked by the

court are capable of revealing

prejudices, the specific questions

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offered by counsel need not be asked.

United States v. Giese, 597 F.2d 1170,

1182-83 (9th Cir.), cert. denied, 444

U.S. 979 (1979).

Defense counsel submitted 13 pages

of requested questions, many of which

were asked by the Court. The voir dire

as conducted did not involve an abuse of

discretion.

V. Evidentiary Rulings

A. Cross-Examination of Unger

Unger objects to the government's

cross-examination of her on the events of

June 11-13 as beyond the scope of direct.

The trial court has broad discretion

in determining the scope of

cross-examination. United States v.

Higginbotham,, 539 F.2d 17, 24 (9th Cir.

1976). <A defendant who takes the stand

may be cross-examined on matters

"reasonably related" to the defendant's

testimony on direct. United States v.

Hearst, 563 F.2d 1331, 1340 (9th Cir.

1977), cert. denied, 435 U.S. 1000

(1978).

The purpose of Unger's direct

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testimony had been to give an innocent

explanation for the safes and the triple

weam scale in her home =- in short, to

negate criminal intent. The questioning

on cross-examination was intended to show

that Unger had a bottle of methyl

alcohol, sometimes used to test cocaine,

at her home, and that she had bought the

alcohol at a 7-Eleven store on June 13.

Thus, the purpose of the

cross-examination was to rebut the

suggestion of innocent uses of items

found in Unger's home - to show criminal

intent. The questions on

cross-examination were "reasonably

related” to Unger's testimony on direct.

We affirm the district court's ruling on

this issue.

B. Rebuttal Evidence against

Christie and Unger

Unger and Christie argue that the

district judge erred in allowing a

prosecution witness to rebut Unger's

testimony denying her knowledge, purchase

and ownership of a bottle of methyl

alcohol found in her home. The testimony

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objected to was that of DEA Agent

D'Ulisse, a rebuttal witness. D'Ulisse

testified that on the evening of June 13,

he saw Christie and Unger drive from a

7-Eleven store where they had met Agent

Mazzilli, to another store, carry a bag

to the car, and return to Unger's home.

This contradicted Christie's testimony

that after she and Unger met Agent

Mazzilli at a 7-Eleven store, Unger told

Mazzilli there was no deal and that

Christie and Unger had immediately driven

directly to Unger's home without stopping

anywhere else.

Unger argues that this rebuttal

evidence was improperly admitted because

it was extrinsic evidence offered to

impeach on a wholly collateral matter and

was thus inadmissible under Rule 608(b).

D'Ulisse's testimony was extrinsic,

and clearly impeached Unger and Christie.

The question is whether the testimony was

admissible for some other purpose.

The district court conceded that the

testimony was intended to impeach, but

that it was also intended to rebut

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Christie's and Unger's contention that if

they had ever intended to conspire, they

had abandoned that intent. Since the

testimony, therefore, went to the

critical issue of intent, it was held

admissible.

The trial judge's reasoning is

sound. The testimony not only impeached,

but was evidence supporting another view

of a central issue in the case: whether

Christie and Unger had abandoned their

intent to test the cocaine and continue

dealing with the agents. As such, the

evidence not only went to the

truthfulness of Christie and Unger's

testimony, but directly to the

government's theory of its case against

them.

United States v. Green, 648 F.2d 587

(9th Cir. 1981) is distinguishable.

There, the court found error in the

admission of certain extrinsic evidence

introduced to attack defendants'

credibility. Id. at 596. The Green

court however, noted that "the question

of what 'purpose' is served by the

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introduction of certain testimony, and

therefore its admissibility under Rule

608(b), is a determination that must be

left in the first instance to the trial

court." Id. Because the testimony of

two witnesses in Green "was designed

primarily as an attack on the defendants'

credibility," its introduction was error.

Other testimony admitted, however, even

though it contradicted the testimony of

the defendants, was found not to have

been erroneously admitted because it was

"admissible to demonstrate capacity, or

some other relevant aspect of the

government's case." Id. Because in this

case the testimony was admissible to

establish intent, and to rebut

Appellants' contention that they had

abandoned that intent, we affirm on that

issue.

C. Expert Testimony

Johnson argues that he was denied a

fair trial because he was not allowed to

present the testimony of linguistic

experts in his defense. The jury viewed

the videotaped conversations that were

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the subject of the proposed expert

testimony. The trial court held that the

capes were clear and the proposed

testimony would confuse and mislead the

jury in addition to wasting time.

Whether expert testimony should be

admitted is a matter for the trial

court's broad discretion and "unless

manifestly erroneous," we will sustain

the trial judge's decision. United

States v. Tsinnjinnie, 601 F.2d 1035,

1040 (9th Cir. 1979), cert. denied, 445

U.S. 966 (1980). The trial judge's

decision to exclude expert testimony was

not "manifestly erroneous." We affirm

the exclusion.

D. Videotapes of Johnson & Agents

The government entered into evidence

two videotapes of conversations between

Johnson and the agents made the day of

the arrest. Johnson argues that the

portion taken after Johnson told the

agents he didn't want their cocaine

should not have been admitted because it

constituted evidence of "other crimes,"

(past and future) and was thus

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inadmissible under Fed. R. Evid. 404(b).

The district judge ruled that

evidence of prior bad acts was more

prejudicial than probative, and allowed

only discussion of future plans to

remain. The court's ruling that the

statements were relevant to interpet the

entire transaction was not an abuse of

discretion. We affirm.

VI. Rubio's Request for Travel Funds

Pursuant to 18 U.S.C. Section

3006A(e) (Criminal Justice Act), Rubio's

appointed counsel requested travel funds

to interview Joao Magalahaenes in prison

in Brazil for possible exculpatory

information about Rubio's past dealings

with Magalahaenes.

The district judge denied Rubio's ,

motion on the grounds that the affidavit

supporting the motion was insufficient.

Rubio argues that he was prejudiced by

this denial because an interview with

Magalahaenes could have produced

information helpful to Rubio's entrapment

defense.

The standard for reviewing a denial

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of funds under the Criminal Justice Act

is whether "a reasonable attorney would

engage such services for a client having

the independent financial means to pay

for them." United States v. Sims, 617

F.2d 1371, 1375 (9th Cir. 1980) (in the

context of funds for expert witness). In

order to obtain reversal based on denial

of funds, an appellant must show

prejudice by clear and convincing

evidence. Id.

According to appellant,

Magalahaenes' testimony would have shown

that he entered into no transactions with

Rubio. Since Magno testified that

Magalahaenes knew that Rubio had the

capacity to supply cocaine, the testimony

from Magalahaenes that he entered into no

transactions with Rubio would not help

Rubio. In view of the evidence showing

Rubio's capacity to distribute cocaine

(in that he knew many persons interested

in buying large quantities of cocaine),

he has not shown that the denial of funds

prejudiced him. We affirm the ruling on

this issue.

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The judgments are AFFIRMED.

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EXHIBIT "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Defendants-Appellants.

UNITED STATES OF AMERICA, ) Nos.

) 82-1165,

Plaintiff-Appellee, ) 82-1166

)

Vv. ) D.C. CR

) 81-854

JERRY T. JOHNSON and )

JEFFREY A. WALKER, ) ORDER

)

)

)

Before: TANG, SCHROEDER and POOLE,

Circuit Judges

The panel as constituted above has

voted to deny the petitions for rehearing

and to reject the suggestions for

rehearing en banc.

The full court has been advised of

the suggestions for rehearing en banc,

and no judge of the court has requested a

vote on the suggestions for rehearing en

banc. Fed. R. App. P. 35(b).

The petitions for rehearing are

denied and the suqgestions for rehearing

en banc are rejected.

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