Petition — Simmerson v. United States

IN THE SUPREME COURT

OF THE UNITED STATES

No.

OCTOBER TERM, 1983

UNITED STATES OF AMERICA,

Respondent,

vs.

RANDOLPH SIMMERSON, ;

Petitioner.

PETITION FOR WRIT CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

David B. Sentelle

Suite 400

1130 East Third Street

Charlotte, North Carolina 28204-2660

(704) 377-9714

Counsel of Record

lin the Court of Appeals, this

matter was heard as a portion of a joint

appeal including the following parties

other than those named in the caption:

Danny Stutts, Charles David Cauble,

Dwight Williams, Rodney Lynn Guion and

William Murdock.

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THE COURTS BELOW ERRED

IN PERMITTING PROSECUTION UPON AN

INDICTMENT TAINTED BY INVASION OF THE

SANCTITY OF THE GRAND JURY PROCEEDINGS.

II. WHETHER THE CONVICTION AND

AFFIRMANCE BELOW WAS VIOLATIVE OF THE

DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

BY REASON OF THE OUTRAGEOUS AND OVER-

REACHING CONDUCT OF LAW ENFORCEMENT

AGENTS.

TABLE OF CONTENTS

Opinion Below . . « «© «© © © ee e e l

Geena Gf GUPLOGIGitOn . «. « «© «ee lh

Bemeeeeem ENRVOLVO@G «© «© © ec ec eo ee eo ll

memoemene OF €h@ Cage . - © ew we e eo l

Argument

I.

II.

The Trial Court Erred in

Refusing to Dismiss the

Indictment because of Grand

Se ee ee ee

The Conduct of the Law

Enforcement Agents Was So

Outrageous and Overreaching

that Due Process and Funda-

mental Fairness Should Bar

the Government from Invoking

the Judicial Process to

Obtain a Conviction against

te ae ee er er eo

DET rTs «2 6 » © © © « © « ef3

TABLE OF AUTHORITIES

Hampton v. United States, 425

1 482 (1976) . . . . . . . . . 16

Latham v. United States, 226 F.2d

426 (Sth Cis. i813} « « « «© -e « « «a9

United States v. Computer Sciences

Corp., 689 F.2d 1181

(4th Cir 1962) « « « © « « ce Lagh3ehS

United States v. Echols, 542 F.2d

966: (300 Gat. i976). « « 2 « @ «@ « £6

United States v. Fisher, 455 F.2d

LiGk- i208 Cavs S97ea) bre eo «ee sh) KS

United States v. Rath, 406 F.2d

Ta) (6GR GES 2969) 6 cs ee ee 6 6 se SS

United States v. Russell, 4ll

U.8- 423. £1973) so « 2 ¢ «0-0 28536 .39

United States v. Twigg, 588 F.2d

373 (386 Cis., 2976) 6 «0 abe e'6 &. 47

STATUTES

i8 U.8.C. 2 1,2

18 U.S.C. 841(a) (1) 1,2

18 U.S.C. 841(b) (1) (B) 1

18 U.S.C. 841(b) (6) pi

21 U.S.C. 812, Schedule I 3

21 U.S.C. 846 1,2

21 U.S.C. 952(a) 1,2

21 U.S.C. 963 1,2

RULES

Rule 17.1(a), Supreme Court Rules l

OPINION BELOW

The judgment sought to be reviewed

was entered on July ll, 1983. The

opinion was unpublished, and a copy of

the same is attached hereto as Appendix

A, infra, pp. A-3 through A-10, and

listed as Case No. 82-5314.

GROUNDS OF JURISDICTION

The statutory provision conferring

jurisdiction will be found at Title 28,

United States Code, Section 1254(1); and

Title 28, United States Code, Supreme

Court Rules; Rule 17.1(a).

STATUTES INVOLVED

21 U.S.C. §§841(a) (1),

841(b)(1)(B), 841(b) (6)

21 U.S.C. §846

21 U.S.C. $932(a), 96 3

18 U.S.C. §2

STATEMENT OF THE CASE

Defendant, along with four

co-defendants, was tried in United

States District Court for the Western

District of North Carolina, before a

jury, on a bill of indictment charging

violations of Tile 2l, United States

2rext of statutes are set forth

in the Appendix hereto.

Code, §§846, 841(a)(1), 952(a) and 963,

and Title 18, United States Code, §2.

The substance of the charges against

Simmerson was that on or about

August 12, 1982, he gave approximately

$9,900.00 to co-defendant Guion for

advance expenses in obtaining an

aircraft for the purpose of smuggling

over 1,000 pounds of marijuana from

Jamaica into the Western District of

North Carolina, knowing the purpose for

which the money was to be used, and that

such advancement of money by Simmerson

was part of a conspiracy to import,

intentionally and knowingly distribute,

and possess with the intent to distri-

bute over 1,000 pounds of marijuana, a

controlled substance as defined in Title

21, United States Code, §812, Schedule

I. Simmerson was further charged in two

counts with aiding and abetting sucn

importation and distribution by the

above transfer of money to Guion.

Simmerson entered a plea of not

guilty to all four counts in which he

was charged (l, 2, 4 and 5) and was

tried by jury on October 21-30, 1982,

before the Honorable Robert D. Potter.

The evidence at trial revealed that

beginning mid-to-late May, 1982, Walter

"Smiley" Brown, a paid government

informant acting under instructions from

FBI Agent Hennigar and DEA Agent Ingram,

met at least six times with Guion to

discuss marijuana smuggling. Brown and

Guion initially renewed their high

school acquaintance, interrupted over

twenty years, and discussed general

topics. At their third meeting, the

topic of marijuana smuggling emerged,

with disputed testimony as to who

originated it. The meeting ended with

Guion attempting to locate a Jamaican

source for approximately 400 pounds of

marijuana and Brown supplying and

piloting the aircraft to be used. Brown

informed authorities of these conversa-

tions.

June 8, 1982, on instructions from

Agents Hennigar and Ingram and outfitted

with an electronic eavesdropping device,

Brown again met Guion and suggested a

second pilot be used. This second pilot

was in reality DEA Agent Adams who was

introduced to Guion by Brown June 24,

1982, as an experienced drug pilot

who would assist in flying the marijuana

into the country. This trip never

reached fruition according to Adams'

testimony as Guion was unable to raise

the money that Adams advised he would

need to import the marijuana. Although

Guion made no plans or arrangements to

contact Adams further, Adams persisted

in calling Guion every two to four days

attempting to arrange another trip.

Guion finally arranged financing by

borrowing $10,000.00 from petitioner

Simmerson who thought that Guion needed

the money for business purposes at the

Lakesiae Marina, and who demanded and

received two titles to boats owned by

Guion as collateral for the loan. On

the day Guion borrowed the $10,000.00

from Simmerson, August 12, 1982, Guion

proceeded tO the Charlotte, North

Carolina airport where he gave Adams

$9,900.00. The trip was then arranged

and made August 24-26, 1982, using a

specially equipped government airplane

provided by DEA Agent Adams and sur-

veilled by government agents. All

defendants except Simmerson were

arrested in the vicinity of Statesville,

North Carolina, at or shortly after the

airplane loaded with marijuana landed.

The jury returned a verdict of

guilty as to Simmerson on all four

counts. Simmerson was sentenced to

consecutive eight-year terms on counts

one and two, and consecutive two-year

terms on counts four and five, for a

total of twenty years imprisonment.

Additionally, on counts two, four and

five Simmerson was sentenced to

consecutive special parole terms of two

years, for a total of six years special

parole tern.

Simmerson appealed to the United

States Court of Appeals for the Fourth

Circuit and the judgment was affirmed

July ll, 1983. The Fourth Circuit did

not examine the probative value or

prejudicial impact of the evidence other

than addressing defendant Murdock's

claim that the district court wrongfully

denied his request for jury instruction

on withdrawal from the conspiracy. All

other contentions of all defendants were

found to be without merit without

further comment.

From the foregoing judgment and

affirmance, Simmerson respectfully

petitions this honorable Court to

determine if the government may be

permitted to allow an instrusion into

the grand jury room by unauthorized

government personnel delivering

unidentified documents to the attorney

for the government and whether the

government may permit its agents to

behave in such outrageous and

overreaching conduct that due process

and fundamental fairness are completely

abandoned in the agents' zealousness to

obtain convictions.

ARGUMENT

I. THE TRIAL COURT ERRED IN

REFUSING TO DISMISS THE

INDICTMENT BECAUSE OF GRAND

JURY TAINT.

Counsel for defendants requested

statements of the witness Ingram, pur-

Suant to 18 U.S.C. §3500. Since Ingram

was the only person to appear before the

grand jury that returned this indict-

ment, the tape of the grand jury pro-

ceedings was provided to defense

counsel. Counsel were permitted to

listen to the tape during a lunch

recess. Contained in the tape was an

instance where an employee of the U. S.

Attorney's Office, not authorized to be

pre 2nt in the grand jury, entered the

grand jury room with unidentified docu-

ments. Defense counsel brought this to

the Court's attention and moved to

dismiss the indictment as a result of

this grand jury taint. The government

responded and conceded that an

unauthorized person had entered the

grand jury room.

It is a long-standing and recog-

nized rule in federal courts that the

mere appearance of an unauthorized

person before a grand jury is a

sufficient ground for dismissal. United

States vs. Echols, 542 F.2d 948 (Sth

Cir. 1976); Latham vs. United States,

226 F. 420 (Sth Cir. 1915). Defense

counsel are aware of United States v.

Rath, 406 F.2d 757 (6th Cir. 1969),

which the government may argue. But in

Rath, an attorney mistakenly wandered

into the grand jury room and left within

twenty seconds of his entry. Our facts

bear no similarity to Rath. In this

case, the government allowed supportive

10

personnel to enter the grand jury room

and deliver an unidentified document.

"(T]he grand jury is not meant to

be the private tool of a prosecutor."

United States vs. Fisher, 455 F.2d 110l,

1105 (2nd Cir. 1972). When the

prosecutor allows his office staff

privileges before the grand jury that

witnesses, attorneys for witnesses, and

even grand jury members are denied, he

is using that body as a private tool.

There is a great probability of and,

perhaps, even certain prejudice to the

grand jury system in this regard. It is

possible that some improper influence or

Suggestion was made in the grand jury

room through the use of the unidentified

documents. The court, when apprised of

these facts, took no steps to inquire

ll

furtner of the government who the staff

member was that entered the grand jury

room or what the unidentified document

was and what it had to do with the

matter before the grand jury. Clearly,

the trial court should have done more

than turn a deaf ear and a blind eye to

this violation of the sanctity of tne

grand jury room.

The Fourth Circuit recently

addressed this same issue in United

States v. Computer Sciences Corp., 689

F.2d 1181 (4th Cir. 1982). In that

case, a grand jury investigation lasted

eighteen months, during which intrusions

by unauthorized persons occurred on five

occasions. Relying heavily on the

duration of the entire proceedings as a

"significant measuring background,"

12

supra, at 1185, the Court held that a

dismissal of the indictment was not

appropriate. The opinion indicated that

for a prosecution which required only a

day or two or a week or two to complete

its grand jury work might not suffer the

same fate. In our case, the grand jury

presentation lasted less than one hour,

Guring which time the unauthorized

intrusion occurred. The language of

that case seems particularly appropriate

here: |

Prosecutors should not

consider what we have written

as in any way amounting to an

encouragement to depart from

scrupulous compliance with

Fed. R. Crim. P. 6(d).

Having been fortunate enough

to survive the attack here by

the skin of their teeth on the

basis of a record as a whole,

they cannot count with any

assurance on a similar

conclusion on another record

13

involving unauthorized grand

jury room intrusions.

Supra, at 1186.

Unquestionably, there was an

unauthorized intrusion into the grand

jury room. Because the trial court took

no steps to determine the nature of the

intrusion and because the government

made no effort to explain the unidenti-

fied document, this court is left to

speculate as to what occurred before the

grand jury. Defense counsel brought

this matter to the court's attention and

have shown the possibility of prejudice

by the very nature of the intrusion and

the document being given to the

prosecutor. Neither the trial court,

nor the government did anything to

counter the allegation of prejudice to

14

these defendants. Thus, this court

should dismiss the indictment for grand

jury taint.

II. THE CONDUCT OF THE LAW

ENFORCEMENT AGENTS WAS SO

OUTRAGEOUS AND OVERREACHING

THAT DUE PROCESS AND

FUNDAMENTAL FAIRNESS SHOULD BAR

THE GOVERNMENT FROM INVOKING

THE JUDICIAL PROCESS TO OBTAIN

A CONVICTION.

Simmerson contends that the court

erred by not entering judgment of

acquittal because the extent of

government “overreaching" amounted to a

deprivation of due process rights. In

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

93 S.Ct. 1637, 36 L.Ed.2d 366 (1973),

this Court accepted the proposition that

15

in certain cases, "the conduct of law

enforcement agents (may be) so

outrageous that due process principles

would absolutely bar the government from

invoking judicial processes to obtain a

conviction.” 411 U.S. at 431-32, 93

S.Ct. at 1642-43. Following Russell,

this Court in 1976 issued a plurality

opinion in the last of the cornerstone

entrapment cases, Hampton vs. United

States, 425 U.S. 482, 96 S.Ct. 1646. A

majority of the court rejected the

position “that the defense of entrapment

necessarily is the only doctrine

relevant to cases in which the

Government has encouraged or otherwise

acted in concert with the defendant."

Id. at 492 N.2, 96 S.Ct. at 1651 n.2.

Most recently, the Third Circuit relied

16

on the directives of the Fifth and

Fourteentn Amendments to the

Constitution in stating that although

proof of predisposition to commit the

crime will bar application of the

entrapment defense, fundamental fairness

will not permit any defendant to be

convicted of a crime in which police

conduct was "outrageous." United States

v. Twigg, 588 F.2d 373 (3rd Cir. 1978).

In Twigg. the Court found that DEA

agents "set up" the defendant,

"encouraged him," and “provided the

essential supplies and technical

expertise." Id. at 38l.

The "outrageous" conduct of the

police officers that formed the basis of

the due process defense in Twigg also

appear in this case. Fundamental

17

fairness must also bar prosecution in

the present case. Law enforcement

conduct here violates that "fundamental

fairness, shocking to the universal

sense of justice," mandated by the Due

Process Clause. United States vs.

Russell, 411 U.S. at 431-32, 93 S.Ct. at

1643. The record is replete with

instances of government overreaching.

It was not sufficient for the government

to monitor the situation once knowledge

was gained that a crime may be

committed, nor was it satisfactory to

them to simply infiltrate the proposed

plan and arrest the guilty parties at

the culmination of the criminal act.

Instead, the government guaranteed that

the crime would be accomplished by

virtue of its overreaching involvement,

18

Simmerson loaned co-defendant Guion

the sum of $10,000.00 for what Simmerson

believed to be legitimate business

purposes. The money was to be repaid in

sixty days, according to Guion, and

Simmerson obtained the titles to two

boats owned by Guion as security for tne

loan. Guion testified that Simmerson

never knew about the marijuana and

believed the money so loaned was to be

used by Guion in buying into a beach

club. Guion further testified that his

deal in buying into the beach club fell

through and, finding himself under

pressure from DEA Agent Adams to come up

with the money to rent a plane, Guion

used the money loaned to him by

Simmerson for this purpose. Guion would

19

never have had the occasion to use the

money for this purpose had it not been

for the badgering of DEA Agent Adams and

government informant Brown. Brown called

his home no less than six times in an

effort to consummate the marijuana deal.

The evidence is conflicting as to

whether government informant Brown or

Guion initiated the conversation as to

marijuana smuggling, but the testimony

of a government informant witness, who

admittedly has something to gain as a

result of his actions, must be

scrutinized with the same care as the

testimony of a defendant who stands to

gain if he can discredit the government

informant witness. Brown, additionally,

introduced DEA Agent Adams to Guion as

20

“an experienced pilot" who knew about

the marijuana smuggling business. Agent

Adams explained the essentials of

importing large amounts of marijuana,

including the size of planes needed,

length of airstrip, weight and flying

considerations; he supplied two flight

charts, suggested a larger type of

airplane and told Guion how much money

would be needed to complete the venture.

Adams even offered to investigate the

Situation as to its feasibility for

Guion. In fact, Guion told Adams that

he could not come up with the money, and

abandoned the plan with no arrangements

to contact Adams after the plan fell

through. However, Adams was not to be

deterred and subsequently made at least

nine telephone calls to Guion in an

21

effort to reactivate the plan. The

government was most helpful in this

venture, supplying the pilots to fly to

Jamaica and back, the government

airplane to be used, specially gutted

and streamlined as well as equipped with

special long distance fuel tanks.

Government agents flew the aircraft to

and from a foreign country, assisting in

the locating and loading of marijuana in

Jamaica, and paying for part of the fuel

to be used.

Clearly, the government agents

overstepped reasonable bounds in the

constant telephoning of Guion after he

abandoned plans to smuggle marijuana.

This, coupled with the government's aid

and expertise, in arranging the

uninterrupted flight over and back,

22

should not be tolerated. If a person

has abandoned the idea of committing an

illegal act, for whatever reason, the

government should not be allowed to

badger or tempt him into committing it.

If a person has decided not to commit a

crime, the government should not be

allowed to encourage him to change his

mind.

CONCLUSION

This case presents the opportunity

to reaffirm the sanctity of grand jury

deliberations against encroachment and

erosion.

This case can likewise be important

in its effect on the increasing active

involvement of law enforcement agents

in the procuring of criminal activity

23

for the purpose of possible

prosecution.

Each of these issues is timely,

important and necessary to the continued

"fundamental fairness" which our country

has always deemed essential to our

unique system of justice.

TUCKER, HICKS, SENTELLE, MOON

AND HODGE, P.A.

f fle

David B. telle

Attorney for Petitioner

Suite 400, 1130 E. Third St.

Charlotte, NC 28204-2660

704/377-9714

24

APPENDIX

Judgment and Commitment ...... Ael

Opinion of the Fourth Circuit

Court of Appeals 7 e . . . ° 7 7 a A-3

Order -- Fourth Circuit -- Denying

Stay of Mandate . . * . ° . . * 7 A-9

Text of Statutes Cited . . ° ° . . A-10

EXHIBIT A

THE WESTERN DISTRICT OF NORTH CAROLINA

"STATESVILLE DIVISION

United States of America vs.

Randolph Simmerson.

Docket No. ST=-CR=-82-22-10

In the presence of the attorney for

tne indictment the defendant appeared in

person on this date -- October 30, 1982

WITH COUNSEL Allen Bailey and Tom

Dickenson (both retained)

PLEA Xx

there being a verdict of [ X ] GUILTY by

the jury in Counts l, 2, 4 & 5.

Defendant has been convicted as charged

of the offense(s) of conspiracy to

distribute and to possess with intent to

distribute over 1,000 lbs. of marijuana,

a Schedule I substance, in violation of

21 U.S.C. 841(a)(1), all in violation of

21 U.S.C. 846, as charged in Ct. 1;

aiding & abetting in distributing &

possessing with intent to distribute

over 1,000 lbs. of marijuana, a Schedule

I substance, in violation of 21 U.S.C.

841(a) and 18 U.S.C. 2, as charged in

Ct. 2; aiding & abetting in unlawfully

importing marijuana, a Schedule I

controlled substance, in violation of 21

U.S.C. 952(a) and 18 U.S.C. 2, as

charged in Count 4; conspiracy to

illegally import marijuana, a Schedule I

controlled substance in violation of 21

U.S.C. 963, aS charged in Ct. 5.

The court asked whether defendant

had anything to say why judgment should

not be pronounced. Because no

sufficient cause to the contrary was

shown, or apeared to the court, the

court adjudged the defendant guilty as

charged and convicted and ordered tat:

The defendant is hereby committed to the

custody of the Attorney General or his

authorized representative for

imprisonment for a period of

Count 1 - EIGHT (8) years

Count 2

EIGHT (8) years t+ special

parole term of TWO (2) years

consecutive with sentence

imposed in Count l

Count 4 TWO (2) years t special parole

term of TWO (2) years

consecutive with sentence

imposed in Count 2

Count 5 TWO (2) years consecutive with

sentence imposed in Count 4

/s/

Robert D. Potter

A-2

EXHIBIT B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5310

United States of America,

-Ve-

Danny Stutts,

No. 82-5311

United States of America,

-V-

Charles David Cauble,

Appellant.

No. 82-5312

United States of America,

-V=

Dwight Williams,

Appellee,

Appellant.

Appellee,

Appellee,

Appellant

No. 82-5313

United States of America,

-V-

Rodney Lynn Guion,

No. 82-5314

United States of America,

-V~-

Randolph Simmerson,

No. 82-5315

United States of America,

-V~

William Murdock,

Appellee,

Appellant.

Appellee.

Appellant.

Appellee.

Appellant.

Appeal from the United States District

Court for the Western District of North

Carolina, at Statesville. Robert D.

Potter, Judge.

Argued June 10, 1983 Decided July ll,

1983

Before WINTER, Chief Judge, WIDENER,

Circuit Judge, and BUTZNER, Senior

Circuit Judge.

David Sentelle, Karen Mashburn, Harold

J. Bender (Theo X. Nixon, Keith M.

Stroud, John E. Hodge, Jr., and James D.

Hill on brief) for appellants; Debra J.

Stuart, Assistant United States Attorney

(Charles R. Brewer, United States

Attorney on brief) for appellee.

PER CURIAM:

Danny Stutts, Charles David Cauble,

Dwight Williams, Rodney Lynn Guion,

Randolph Simmerson, and William Murdock

were convicted by a jury of various

charges arising out of a conspiracy to

import and distribute illegally over

1000 pounds of marijuana. They appeal

from their convictions and raise 13

assignments of error.

We have carefully considered each

of the appellants' arguments and find

them all to be without merit, except for

Cauble's contention that he received

a duplicitous sentence. Cauble was

convicted under count three of the

indictment of possession with intent to

distribute over 500 pounds of marijuana

in violation of 21 U.S.C. Section

841(a)(1), and under count two of aiding

and abetting possession with intent to

distribute over 1000 pounds of

marijuana. He received separate,

consecutive sentences of imprisonment

for each conviction. Every element

necessary to prove count three, however,

is also an element of count two and

arose out of the same transaction. It

therefore was improper to sentence him

separately for each conviction.

Accordingly, we vacate Cauble's sentence

under count three of the indictment.

See United States v. Amos, 566 F.2df

899, 901 (4th Cir. 1977).

The only other issue meriting

comment is Murdock's claim that the

district court wrongfully denied his

request for a jury instruction on

withdrawal from the consipiracy.

"Affirmative acts inconsistent with the

object of the conspiracy and communi-

cated in a manner reasonably calculated

to reach co-conspirators have generally

been regarded as sufficient to establisn

withdrawal or abandonment." United

States v. United States Gypsum Co., 438

U.S. 422, 464-65 (1978). Furthermore,

withdrawal must be completed before the

object of the conspiracy is achieved.

See 4 C. Torcia, Wharton's Criminal Law

§ 734 (14th ed. 1981).

Murdock was charged with the

conspiracy to import and conspiracy to

distribute the marijuana. There was

suttictent evidence linking Murdock to

the conspiracy prior to the time the

marijuana was brought into the United

States. Murdock testified, however,

that when some of the other defendants

brought the load of marijuana to his

home to be divided, he became angry and

ordered one of the defendants to "get

that stuff out of here." He claimed he

then left the area, although F.B.I.

agents testified they later observed

Murdock using his truck to guard the

entrance to his property as other

conspirators moved the marijuana.

Murdock made no attempt to withdraw

prior to the achievement of the object

of the conspiracy to import. In

addition, his request to get the

marijuana off his property was not

inconsistent with the object of the

conspiracy to distribute the marijuana.

The district court, therefore, did not

err in refusing to give Murdock's

requested jury instruction. See also

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

946-47 (4th Cir. 1982).

No. 82-5310 - AFFIRMED;

No. 82-5311 - AFFIRMED IN PART

AND VACATED IN PART;

No. Bo-o5le2 - AFFIRMED;

No. 82-5313 - AFFIRMED;

No. 82-5314 - AFFIRMED;

No. 82-5315 - AFFIRMED.

A-10

EXHIBIT C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5314

United States of America, Appellee,

-V=-

Randolph Simmerson,

Appellant.

Appeal from the United States District

Court for the Western District of North

Carolina, at Statesville. Robert D.

Potter, District Judge.

Upon consideration of a motion

of the appellant, for stay of mandate

pending application to the Supreme Court

of the Untied states for a writ of

certiorari,

A-ll

IT IS ORDERED that the motion

is DENIED.

For the Court = by Direction

Clerk

A-12

EXHIBIT D

APPENDIX

Title 21, United States Code, Section

84l(a)(1):

(a) Except as authorized by tnis

subchapter, it shall be

unlawful for any person

Knowingly or intentionally--

(a) To manufacture,

distribute, or dispense, or

possess with intent to

manufacture, distribute, or

dispense, a controlled

substance; ..."

Title 21, United States Code, Section

(b)(1)(B)

In the case of a controlled

substance in schedule I or II which

is not a narcotic drug or in the

case of any controlled substance in

schedule III, such person shall,

except as provided in paragraphs

(4), (5), and (6) of this

subsection, be sentenced to a term

of imprisonment of not more than 5

years, a fine of not more than

$15,000, or both. If any person

commits such a violation after one

Or more prior convictions of him

for an offense punishable under

this paragraph, or for a felony

A-13

under any other provision of this

subchapter or subchapter II of this

chapter or other law of the United

States relating to narcotic drugs,

marijuana, or depressant or

stimulant substances, have become

final, such person shall be

sentenced to a term of imprisonment

of not more than 10 years, a fine

of not more than $30,000, or both.

Any sentence imposing a term of

imprisonment under this paragraph

shall, in the absence of such a

prior conviction, impose a special

parole term of at least 2 years in

addition to such term of

imprisonment and shall, if there

was such a prior conviction, impose

a special parole term of at least 4

years in addition to such term of

imprisonment.

Title 21, United States Code, Section

841(b) (6)

In the case of a violation of

subsection (a) of this section

involving a quantity of marihuana

exceeding 1,000 pounds, such person

shall be sentenced to a term of

imprisonment of not more than 15

years, and in addition, may be

fined not more than $125,000. If

any person commits such a violation

after one or more prior convictions

of such person for an offense

punishable under paragraph (1) of

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this paragraph, or for a felony

under any other provision of this

subchapter, subchapter II of this

chapter, or other law of the United

States relating to narcotic drugs,

marihuana, or depressant or

Stimulant substances, have become

final, such person shall be

sentenced to a term of imprisonment

of not more than 30 years, and in

addition, may be fined not more

than $250,000.

Title 21, United States Code, Section

846:

Any person who attempts or

conspires to commit any offense

defined in this subchapter is

punishable by imprisonment 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.

Title 21, United States Code, Section

952(a);

It shall be unlawful to import into

the customs territory of the United

States from any place outside

thereof (both within the United

States) or to import into the

United States from any place

outside thereof, any controlled

substance in schedule I or II or

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subchapter I of this chapter, or

any narcotic drug in schedule III,

IV, or V of subchapter I of this

chapter. ..

Title 21, United States Code, Section

963:

Any person who attempts or

conspires to commit any offense

defined in this subchapter is

punishable by imprisonment 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.

Title 18, United States Code, Section 2:

(a) Whoever commis an offense

against the United States or aids,

abets, counsels, commands, induces

or procures its commission, is

punishable as a principal.

(b) Whoever willfully causes an

act to be done which if directly

performed by him or another would

be an offense against the United

States, is punishable as a

principal.

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CERTIFICATE OF SERVICE

The undersigned hereby certifies

that David B. Sentelle, Attorney for

Petitioner, Randolph Simmerson, has this

day served a copy of the foregoing

Petition upon the Solicitor General of

the United States and the United States

Attorney by depositing the same in the

United States mail postage prepaid and

properly addressed to:

Solicitor General of the United States

Room #5614

Department of Justice

Washington, DC 20530

United States Attorney

The Charles R. Jonas Federal Building

401 West Trade Street

Charlotte, NC 28202

This the 8th day of September,

1983. -

entelle

Attorney at Law

(Admitted to the Supreme

Court Bar)

1130 E. Third Street, St. 400

Charlotte, NC 28204-2660