Petition — Garrett v. United States

met

88-1227 | sare

ALEXANDER L. STEVAS,

CLERK

NO.

IN THE SUPREME COURT OF

THE UNITED STATES OF AMERICA

OCTOBER TERM 1983

L. G. MOORE,

PETITIONER

Vv.

UNITED STATES OF AMERICA,

RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED

STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR CERTIORARI FOR L. G. MOORE

MICHAEL RAMSEY

2701 PANNIN

202 TRAVIS, SUITE 280

HOUSTON, TEXAS HOUSTON, TEXAS 770@2

(713) 659-8989 77002 (713) 224-2001

QUESTIONS PRESENTED FOR REVIEW

l. Should the indictment have been

dismissed or an acquittal ordered

because federal jurisdiction, which

enabled the Government to prosecute

Petitioner under the Travel Act, was

furnished solely by behavior of

undercover agents?

2. Whether the Government's conduct was

so egregious in luring Petitioner to

commit bribery that an acquittal

should have been ordered on the

grounds of Due Process?

3. Whether the District Court violated

Petitioner's rights under the a

Confrontation Clause in admitting

inadmissible, tape-recorded, hearsay

evidence?

Ar

a - .

, _ a

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .....-+-+-i |

TABLE OF CONTENTS ...cessccccccccsesesodd

TABLE OF AUTHORITIES ...ceeeeeeeveveeesi¥

SPT EID ck Sars 6 opeGbaeecccoscceesek

JURISDICTION ...cceceeeeeseeesscssvsseeed

CONSTITUTIONAL PROVISIONS AND

STATUTES iia hee eee oe eeooccooceecl

STATEMENT OF THE CASE

(i) Course of Proceedings

and Disposition in Court Below ....2

(ii) Statement of facts ....+++++3

ARGUMENT

(i) Should the indictment

have been dismissed or an

acquittal ordered because

federal jurisdiction, which

enabled the Government to

prosecute Petitioner under the

Travel Act, was furnished

solely by behavior of under-

cover agents? ptbdoekedtboececoveesveot

(ii) Whether the Govern- ¢

ment's conduct was so egre- .

gious in luring Petitioner to

commit bribery that an ac-

quittal should have been :

ordered on the grounds of Due ‘

. Process? ccksadas Sebvocdidonedeveohl 7

“e Aaa) Whether the District , 4

ee

A

Court violated Petitioner's

rights under the Confrontation

Clause in admitting inad-

missible, tape-recorded,

hearsay OVIdeNCE? 2. ceeeeeeeeeeee edd

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CERTIFICATE OF SERVICE pewescobdveceud eam

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TABLE OF AUTHORITIES

Page

TABLE OF CASES:

l. Bruton v. United States, 391

U.S. 123, 08 S.ct.1620, 20 L.Ed.

2d 476 CI9SS ic wccdocdsseoocbscccscocoadis 28

2. Chapman v. California, 386

U.S.18, oy S.Ct. 824, I7 L.Ed. 2a 705

Les ds blew bbe oe\aee “TYVTERTT TEL TT OS 29

Se Dutton v. Evans, 400 U.S. 74,

91 s.ct. 210, 27 L.Ed. 213 a ) SP

4. Fahy v. Connecticut, 375 U.S.

85, 6. Se 225- 1T LE t. . .Ed. 2d 171

po SES SS a ete Sy ee

5. Hampton v. United States, 425

U.S. 484, 96 S.Ct. 1646, 48 L.Ed. 24

113 tg | FERS TAR ee > A SA SRR

6. Pointer v. Texas, 380 U.S.

400, 65 §.Ct. 1065, 13 L.Ed. 24 923

(1965). ce reeccrverecccncccecesceseceeseal

7. Rewis v. United States, 401

U.S. 808, SIT S.Ct. 1056, 28 L. ed.

2d 493 ON RRA TIA TS ACF 10, ll

U.8s. , . . ? . . 413

C BOTS. a cccccoccccccesosensoesssooecesoonh

406 fF. °

Sh) rs | ll, 12, 14, 15, 16, 17

Page

10. United States v. Garrett,

716 F.2d 25? (5th Cir.

19SS)cocccvocsckse 13, 17, 18, 19, 20, 26

ll. United States v. Hauser, No.

CR-78-1313 (D. Ariz., WE a baka ces onl

1? United States v. Russell, 411

ve8. 423, 93 S.Ct. 1637, 36 L.Ed. 2d

366 REE S oO) ou. ue ke i

13. United States v. Webster, 649

F.2d 34¢ (5th Cir. Dh no sétethes eel

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. Bo Cee 21, A3

U.S. Const. amend.VI...25, 26, 27, 28, A3

STATUTES:

18 U.S.C. §$1952....4+4+-2, 8, 10, ll, 12,

13, 14, 17, 18, A4

OPINIONS BELOW

The opinion of the Court of Appeals

is officially reported at 716 F.2d 257

(Sth Cir. 1983). There is no opinion of

the District Court as such case was tried

before a jury.

JURISDICTION

The judgment of the Court of Appeals

was entered on September 19, 1983. A

petition for rehearing was denied

November 22, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C.

$1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

1. U.S. Const. amend. V

2. U.S. Const. amend. VI

3. 18 U.S.C. §1952

(See Appendix - Above is set out

verbatim)

STATEMENT OF THE CASE

(i) Course of Proceedings and

Disposition in the Court Below

Defendants, L. G. Moore and John

Garrett, were indicted in a four count

indictment on May 26, 1981, in Houston,

Texas for conspiracy to violate, and

violating the Travel Act, 18 U.S.C.

§1952. As a result of the aforesaid

indictment, original jurisdiction existed

with the District Court located in the

Southern District of Texas, Houston

Division. Defendants’ trial to a jury

began on January 12, 1982, and on

February 25, 1982, the jury returned a

_ guilty verdict against both Defendants on

y)

count three, a substantive Travel Act

violation. The jury was unable to reach

a decision on counts one and four. (The

Defendants were not arraigned on the

second count. ) Both Defendants were

sentenced to five years probation,

j

required to perform three hundred fifty

hours of community service, and pay a Ten

Thousand Dollar fine. Petitioner Moore

timely appealed to the Fifth Circuit

Court of Appeals. Moore's appeal. was

denied on September 19, 1983. He then

timely filed a petition for rehearing

which was subsequently denied on November

22, 1983.

(ii) Statement of Facts

On February 5, 1979, Joseph Hauser

pleaded guilty to federal criminal

charges arising from a scheme to swindle

health, welfare, and pension funds from

labor unions. See United States v.

Hauser, No. CR-78-1313 (D. Ariz.,

1979). At about the same time, Hauser

willingly agreed to participate with

F.B.I. agents in the undercover operation

which has become commonly known as

Brilab. In return, Hauser received the

assistance of Justice Department

\

pes

Dis

‘

ib

attorneys at his sentencing, substantial

compensation, reimbursement of expenses,

other fringe benefits during his

participation in the investigation, and

the benefits of the federal witness

protection program.

The resulting Brilab investigation

was supposed to be centered upon

suspected illegal activities of labor

union officials. Hauser and two F.B.I.

agents, Mike Wacks and Larry Montague,

established a bogus insurance agency

known as Fidelity Financial Consultants

in Beverly Hills, California, in mid-

April, 1979. A cover was arranged

whereby Pidelity would purport to

represent Prudential Insurance Company.

In reality, there was no such

organization as Fidelity, and Fidelity

had no connection with Prudential or any

other insurance company. The plan was

for Hauser, with the assistance of the

re. ae

agents, to expose corruption among labor

leaders by bribing them to acquire

insurance for their unions’ through

Fidelity.

After unsuccessful efforts in

Southern California, Hauser expanded his

field of operations to Texas. A previous

acquaintance in Waco referred Hauser to

Harold Grubbs in Houston. On July 5,

1979, Hauser met with Grubbs, and they

concocted a plea to contact Defendant L.

G. Moore, a labor leader, in order to

obtain insurance business from Moore's

labor unions. Adthensa Moore had no

prior criminal record, Grubbs described

him as “on the take."! on September 20,

a meeting was held between Moore, Hauser,

it is the admission into evidence of the

tape recording of this conversation,

together with a similar tape between

Hauser and Grubbs, which is complained of

as a violation of Moore's rights under

the Confrontation Clause.

and Wacks. At this meeting, Moore was

offered substantial inducements in

exchange for procuring labor union

insurance contracts. These "“induce-

ments", among other things, amounted to

some six hundred thousand dollars per

year in payment of commissions for the

sale of an insurance policy to the State

of Texas and promises of like renum-

eration for other such sales.

On October 17, Moore introduced

Hauser, Wacks and Montague to co-de-

fendant Garrett. Moore referred to

Hauser and the agents as his friends and

solicited Garrett's aid in obtaining

insurance business for Prudential. After

a discussion arose about the possibility

of procuring a county contract, Hauser

inguired about the insurance for the city

of Houston. Garrett then called City of

Houston Councilman Jim Westmoreland, and

asked him whether a deal could be worked

out. Subsequently, Moore and Garrett

attempted to “encourage” Westmoreland to

accept Prudential's bid for the City of

Houston's insurance contract.

Meanwhile, at the time of these

discussions, the Houston City Council was

negotiating and _ soliciting bids in

preparation for the January, 1980

expiration of insurance coverage of

25,000 city employees. Without con-

sulting the government agents posing as

Prudential/Fidelity agents, Prudential

Insurance Company had itself prepared a

bid, as did at least four other major

companies. The Texas Municipal League

(the “League"), a commission representing

over two hundred cities in Texas that

sought to combine the bargaining power of

the cities in order to obtain favorable

insurance coverage for the sunicipal-

ities, independently reviewed the in-

surance available and, coincidentally,

j

7

_—s

—.

adopted Prudential's plan. The contract

finally signed by the City Council on

December 26, 1979 was with the League,

which contracted with a Texas insurance

company that in turn contracted with

Prudential to provide the coverage. (It

is clear that the League had nothing to

do with the efforts to bribe Westmore-

land, and that it had _ independently

selected what it considered the best

coverage at the lowest price.)

The next day, December 27, Moore

called agent Wacks at the Fidelity

offices in Beverly Hills, California.”

Moore told Wacks that the contract was to

be voted on that day (although Moore had

been present at the council meeting the

day before, at which the Council voted in

2rhis is the interstate telephone call

upon which the present federal Travel Act

indictment is based.

favor of the Prudential contract), and

that they needed an extra $10,000 to

commit a couple more councilmen. Wacks

agreed to pay this sum.

Moore called again the same day,

left a message, and Wacks returned the

call. Moore then told him that the

contract had just been awarded at a

premium of $12 million (of which the

agreed commission for the agents and the

defendants was ten percent).

ARGUMENT

(i) Should the indictment have been

dismissed or an acquittal ordered because

federal jurisdiction, which enabled the

Government to prosecute Petitioner under

the Travel Act, was furnished solely by

behavior of undercover agents?

In Rewis v. United States, 401 U.S.

808, 91 S.Ct. 1056, 28 L.Ed. 2d 493

(1971), this Court held that the

interstate commerce element giving rise

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an a“ bee 4 :-~ + a os = gs F haut oF mA Ral fe ed a Re re ee ey ae ey ‘Se

to federal jurisdiction under the Travel

Act should be scrutinized so as to pre-

vent such Act from altering sensitive

federal-state relationships, overextend-

ing limited federal public resources, and

transforming relatively minor state

offenses into federal felonies. In so

holding this Court recognized the tenuous

nature of the interstate nexus and seemed

to categorize situations where the inter-

state element was a “matter of happen-

stance" as those instances where juris-

diction cannot be supported under the

Travel Act. Id., 401 U.S. at 812, 91

S.Ct. at 1059, 28 L.Ed. 2d at 493,

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

670 (2d Cir. 1973), the Second Circuit,

in adhering to Rewis, supra, recognized

that when the federal element in a

prosecution under the Travel Act is

furnished solely by undercover agents, a

stricter standard of review is needed

10

than when the interstate nexus is pro-

vided by the defendants themselves. This

is so because the legislative purpose in

instituting the Travel Act was not to

extend federal power to deal with cor-

ruption in local prosecutor's offices

merely as a result of fortuitous inter-

state contact between an undercover agent

and corruptor. Id. at 685. Logically,

if Rewis stands for the proposition that

an expansive interpretation should not be

given to the interstate nexus, then it is

axiomatic that a similar narrow inter-

pretation should be given when a Federal

undercover agent plays a role in estab-

lishing Travel Act jurisdiction. The

Second Circuit takes Rewis, justifiablr,

one step further by requiring a stricter

standard in reviewing the federal

element.

However, the Fifth Circuit (in

contrast to the Second Circuit), has

11

adopted a more lax standard in scru-

tinizing the federal element giving rise

to Travel Act jurisdiction. Thus a dis-

crepancy exists as to the proper level of

review concerning the interstate nexus

invoking Travel Act jurisdiction. The

Fifth Circuit in deciding the case at

hand, has rejected the Archer “stricter

standard” for testing the sufficiency of

the interstate element when government

agents are involved. Even though the

Court stated that it does not expressly

adopt or reject the Archer, “stricter

standard", United States v. Garrett, 716

F.2d 257, 267 (Sth Cir. 1983), in reality

it rejects such standard. Rather than

applying a stricter standard for testing

the sufficiency of the interstate ele-

ment, the Fifth Circuit merely scru-

tinizes the government's apparent reasons

for its actions and forbids the govern-

ment agent's movement out-of-state solely

12

to manufacture Travel Act jurisdiction.

Id. at 267. Moreover, contrary to the

Second Circuit, the Fifth Circuit inter-

prets the Travel Act as not excepting

“casual, incidental, or happenstance"

interstate contacts. Id. at 267 n.5,

The interstate nacxus, in which the

Fifth Circuit found Travel Act juris-

diction, was predicated on an interstate

telephone call made by Petitioner, who

was in Texas, to federal undercover agent

Wacks who was in California. In line

with Fifth Circuit precedent, the Court

found that since Agent Wacks did not fly

out to California just to receive a

telephone call from Petitioner Moore,

coupled with the fact that Petitioner

Moore was aware of Agent Wacks' Cali-

fornia insurance company when he phoned

Wacks, Travel Act jurisdiction existed.

Id. at 267.

Yet, the Second Circuit, adopting an

Archer "stricter standard", would have

inquired further than the Fifth

Circuit. An apt illustration can be seen

by comparing the scenario of Petitioner

Moore's phone call with two of the tele-

phone calls discussed in Archer. In the

Paris call,?

federal agent traveled out-of-state for

purposes other than manufacturing juris-

diction, a matter of happenstance. In

Archer, the Second Circuit spoke directly

to this point:

"The Government places

great weight on the fact

that Bario (the agent) was

in Paris on legitimate

3In Archer, a federal agent had been

working undercover in New York. During

the pendency of his investigation in New

York, he went to Paris, France on another

investigation. While in Paris, the agent

called a defendant in New York. The

agent's call to New York was one of three

out-of-state calls in which the

Government sought to invoke Travel Act

_ Jurisdiction. United States v. Archer,

supra at 673.

-as in Petitioner's call, the

—

business and was not sent

there solely to manufac-

ture jurisdiction in this

case. But that fact alone

is not sufficient to

qualify the Paris call.

Any __such_ holding would

it the Government to

rm

convert any local bribe

it had rovoked into a

federal offense fur-

nishin an out-of-state

address for an undercover

agent or sending him

outside the state on a

peaitimate errand and

aving a call made before

the offense was con-

sumated." (Emphasis added

s ours).

United States v. Archer, supra at 685.

Furthermore, in the Las Vegas call,‘

as in Petitioner's call, a defendant in-

4while in New York, the undercover agent

told ‘a co-defendant, who was a bondsman,

that he was from Las Vegas and that he

was going out of town and could be

reached at a certain Las Vegas hotel.

. The bondsman, in need of talking to the

agent, repeatedly called the Las Vegas

hotel. However, the bondsman never

talked to the agent during his interstate

calls because unbeknownst to the

bondsman, the fact that the agent could

be reached at the Las Vegas hotel was a

government plant of misinformation.

:

:

itiated the phone call. The sole dis-

tinction being that Petitioner actually

talked to the agent, while in Archer, the

: bondsman did not. Yet, based on this

distinction, the Second Circuit would not

have ruled differently. Id. at 682 n.

14. The Fifth Circuit argues that since

Petitioner was aware of agent Wacks'

California insurance company at the time

of the phone call, jurisdiction exists.

Meanwhile, the bondsman in Archer had the

same subjective belief that the agent

could be reached out-of-state and

jurisdiction was still wanting.

Based on Archer, it is apparent that

if Petitioner's appeal had been before

the Second Circuit, the indictment would

have been dismissed. The stricter

standard applied by the Second Circuit is

definitely a matter of line-drawing.

Yet, the import of Archer is clear, the

defendants must cause the interstate

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commerce element; it cannot be

manufactured by an undercover agent who

gives a defendant an out-of-state

telephone number and as a matter of

happenstance travels to the location of

the out-of-state telephone number and

subsequently receives a call from the

defendant. Especially where such phone

call may have been made intrastate, but

for the matter of happenstance. >

While such interstate nexus would

have been given a stricter standard of

scrutiny resulting in a dismissal of the

indictment in the Second Circuit, the

Fifth Circuit has refused to adopt such a

standard. As a result, the Fifth Circuit

has rendered a decision in conflict with

Sthe Fifth Circuit believes that the

Travel Act does not except “casual,

incidental, or happenstance" interstate

contacts. United States v. Garrett,

supra at 257 n. 5.

>" hae

the decision of the Second Circuit. The

obvious need for this Court to grant

certiorari and reconcile the two circuits

becomes apparent upon reading a footnote

written by Judge Tate which appears

within his panel opinion of tne instant

case:

"Further, in the author's

personal view, the fed-

eralizing of the state

bribery offense - itself

spawned and created by

governmental inducements

of this nature and mag-

nitude - is an unjusti-

fiable expansion of the

congressionally - intended

reach of the Travel Act,

especially where federal

jurisdiction is founded

upon a single interstate

telephone call to a

government agent (where

the government had itself

initiated the initial

interstate contact with

the Texas defendant).

Again, however, I feel

lied the rece-

ents o se circuit to

275 n. 10 (Sth Cir. 1983).

(ii) Whether the Government's conduct

was so egregious in luring Petitioner to

commit bribery that an acquittal should

have been ordered on the grounds of Due

Process? |

In United States v. Russell, 41l

U.S. 423, 93 S.Ct. 1637, 36 L.Ed. 2d 366

(1973), this Honorable Court stated, “we

may some day be presented with a

situation in which the conduct of law

enforcement agents is so outrageous that

due process principles would absolutely

bar the government from invoking judicial

process to obtain a conviction."

Petitioner asserts that the instant case

is such a situation. Moreover, so does

Judge Tate who wrote the panel opinion in

United States v. Garrett, supra. In

Garrett, Judge Tate states the following:

"Although this conclusion

seems required by prece-

dent of this circuit, the

author of this opinion,

expressing views personal

to him alone of the panel,

insofar as he knows, feels

obliged to note that, were

he writing on ae clean

slate, he would feel that

the defendants due process

rights were violated by

their conviction of

government-created crimes

spawned from an enterprise

of this magnitude formed

solely for the purpose of

inducing individuals’ to

commit crimes through

inordinately large fin-

ancial inductments, what-

ever the predisposition of

the individuals so ensnar-

ed."

Id. at 275 n. 10.

In an attempt’ to lure Petitioner to

bribe City of Houston Councilman West-

moreland to vote to accept Prudential's

bid for the City of Houston insurance

contract, undercover agents offered him

the following: six hundred thousand

dollars per year; admission of one of his

K sons into Georgetown Law School; and the

Opportunity of becoming the next General

President of the International Union of

20

a

:

Operating Engineers. As a result of said

inducements, at trial, Petitioner raised

the defense of entrapment. Nevertheless,

the jury, unable to reach a verdict on

two counts, came back with a guilty ver-

dict on count three, a substantive Travel

Act violation.

Yet, the fact that the jury rejected

Petitioner's entrapment deferise should

not preclude Petitioner from arguing..that

the government's conduct was so out»

rageous as to violate due process. Since

the defense of entrapment was first

recognized in Sorrells v. United States,

287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413

(1932) this Court has been split on

whether the focus of the inquiry should

be on defendant's predisposition or on

the conduct of the government agent.

United States v. Webster, 649 F.2d 346,

348 n. 3 (5th Cir. 1981). While some

members of this Court seem to suggest

21

\* cee ERS ee Pen ee

Ae) “ OLY, ae “ iy ae 27 vo ae +7 3d Boe

that outrageous government conduct can

never be made a defense if a defendant is

found to be predisposed to committing the

criminal act, Hampton v. United States,

425 U.S 484, 492, 96 S.Ct. 1646, 1651, 48

L.Ed. 2d 113 (1976), other members

disagree. Justices Powell and Blackmun,

after noting that this Honorable Court

has never had occassion to confront a

Government overinvolvement case in an

area outside the realm of contraband,

both state that they are unwilling to

conclude that such a due process argument

can never be made if a defendant is found

to be predisposed to committing the

criminal act. Id. 425 U.S. at 493, 96

S.Ct. at 1651.

Furthermore, logic would suggest

that the outrageousness of the government

conduct should be considered as a defense

even if a defendant is so predisposed.

This is because the amount of Government

22

inducements begs the question as_ to

whether an individual was predisposed to

committing a criminal act. For instance,

Mr. R. may be offered $100.00 to deface

government property and refuse. Yet, Mr.

R. may be offered $600,000.00 to deface

the same property and agree. The fact

that Mr. R. initially refuses to deface

property for $100.00 seems to suggest

that he is not predisposed to doing such

an act. However, if Mr. R. would be

willing to deface the same property for

$600,000.00, there is some indication

that there exists a certain price where

he would be predisposed to committing

such an act. It is illogical and against

human nature to assume that most people

are not predisposed to committing illegal

acts when substantial inducements are at

stake.

The jury, in rejecting Petitioner

Moore's entrapment defense, arguably

23

believed that Moore was predisposed to

committing bribery for a _ substantial

sum, However, it was the substantial

nature of the inducements which enticed

Petitioner's ill motivated greed. Surely

this Court should grant certiorari to

Gecide whether substantial government

inducements can be so unreasonable as to

violate due process.

(iii) Whether the District Court

violated Petitioner's rights under the

Confrontation Clause in admitting

inadmissible, tape-recorded, hearsay

evidence?

At the trial, over proper objection,

the Government was permitted to introduce

the unsworn, surrepitiously tape re-

corded, hearsay statements of Harold

Grubbs describing Petitioner Moore. The

playing of these tapes, which consumed

the major portion of a trial day, allowed

the jury to hear numerous statements

24

Similar to the following:

GRUBBS: “...Now this guy is the head of

five states for the operating

engineers. Got a lot of fucking

members. Ah, and he can, he'll

he'll deal."

GRUBBS: “Bottom line, he'll deal."

GRUBBS: "“°...Now this son of a bitch here

you can deal with. One on one,

just like you deal with me."

GRUBBS: “But, now this guy, L. G. Moore,

I was telling you about, you can

do business with him. Just like

you're doing it with me and

never have to worry about

nothing."*

GRUBBS: “But you see, you have to know

these people and I know ‘em, I

know who's on the take and I

know who's straight and I know

all the whole fuckin’ deal, and

I'll teil you.”

Before said tapes were introduced into

evidence, counsel for Petitioner objected

and stated that said tapes constituted

inadmissible hearsay. Moreover, counsel

told the District Judge that since

Geclarant Grubbs was unavailable to

testify, introduction of the tapes would

violate Petitioner's Sixth Amendment

right of confrontation. On appeal the

Fifth Circuit, in response to Peti-

tioner's above said claims, . ruled that

the introduction of the aforementioned

tapes constituted error in that they were

inadmissible hearsay. United States v.

Garrett, supra, at 273. However, they

went on to state that such error was

harmless.

Even though the Fifth Circuit panel

‘recognized that Petitioner sought a

reversal with respect to the Grubbs'

tapes on the basis that his Sixth

Amendment Confrontation rights wei

violated because Grubbs was unavailable

for cross-examination, Id. 273, the panel

decision failed to comment on this

issue. Instead, their line of inquiry

was limited to the hearsay nature of said

tapes. In Dutton v. Bvans, 400 U.S. 74,

86, 91 S.Ct, 210, 27 L.Bd, 2@ 213 (1970),

this Honorable Court stated that ‘the

26 \ al

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ba | |

“a ‘| —

4 a | * — \ ae iene * 4 Oa at ell

hearsay law is not to be "equated" with

the right of confrontation. "The Sixth

Amendment's right of an accused to

confront the witnesses against him is

«+e-a fundamental right....” Pointer v.

Texas, 380 U.S. 400, 404 85 S.Ct. 1065,

13 L.Ed. 2d 923 (1965). A right which

Petitioner was denied!

In addressing his Confrontation

Claim, Petitioner would note that the

instant case is analogous to Bruton v.

United States, 391 U.S. 123, 88 S.Ct.

1620, 20 L.Ed. 2d 476 (1968). There,

this Court reversed the robbery con-

viction of a defendant where his in-

volvement in the crime was explained by a

Postal inspector who allegedly heard a

co-defendant's oral confession. In

Bruton, the declarant's statements were

proof on an ultimate fact issue: in-

volvement in the crime. Here, Grubbs'

statements were proof on an ultimate fact

27

issue: predisposition to commit the

iotina:: Thus, Petitioner like Bruton, was

denied an opportunity to confront his

accuser.

Nor can the denial of Petitioner's

Confrontation rights be considered

harmless error. In Fahy v. Connecticut,

375 U.S. 85, 86-87, 84 S.Ct. 229, ll

L.Ed. 2d 171 (1963) Chief Justice Warren

stated:

The question is whether

there is a reasonable

possibility that the

evidence complained of

might have contributed to

the conviction.

In Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed. 2d 705 (1967), a

decision similar to the case at bar both

in the frequency of the highly pre-

judicial evidence, and its influence upon

a “substantial right," the Court, in an

opinion expressing the views of seven of

its members wrote that it must be proven:

»»e-beyond a reasonable doubt

that the error complained of did

not contribute to the verdict

obtained. 386 U.S. at 24.

The fact that the jury deliberated for

four days and was only able to reach a

verdict on one of three counts demon-

strates the closeness of the case. There

can be little argument that the issue of

whether Petitioner was "predisposed" to

engage in his conduct was very difficult

to resolve because the Government's proof

on this issue was not strong. ae

evident that the Chapman standard was not

met. Therefore, this Court should grant

certiorari and restore Petitioner's Sixth

Amendment right of confrontation.

CONCLUSION

For the foregoing reasons,

Petitioner respectfully prays that a writ

of certiorari issue.

29

Respectfully submitted, w#

Wal tah Midtnf isi,

Houston, Texas 77002

713-224-2001

State Bar No. 16521000

Attorney for L. G. Moore

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify ,

that three true and correct copies of the

foregoing Petition for Certiorari for L.

G. Moore were delivered by United States

Mail to the Solicitor General, Department

of Justice, Washington, D.C. 20530

(certified return receipt requested #P269

163 529); Mr. Ron Woods, Assistant United

States Attorney at 515 Rusk, Houston,

Texas 77002 (certified return receipt

requested #P269 163 530); and to Mr.

Richard Haynes, Attorney for John

Garrett, at 2701 Fannin, Houston, Texas

77002 (certified return receipt requested

#P269 163 531) on this the 19th day of

ub foe

31

January, 1984.