Petition for Writ of Certiorari — Shaw v. Winter
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86 — Supreme Court, US. |
| - 18 65 | FILED
) NEC 24 1988
No. A-432 ". JOSEPH F. SPANIOL, JR,
CLERK
In the Supreme Court of the Hnited States
OCTOBER TERM, 1986
RONALD R. SHAW, PETITIONER
V.
SHERIFF ROBERT WINTER, APPELLEE-RESPONDENT
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD R. SHAW
P.O. Box 4887
San Jose. California 95150
Petitioner in Pro-Se
ial bi
ISSUES TO BE SUBMITTED
The issues on appeal among others, will be the
following:
1. Whether the Ninth Circuit's decision conflicts with
the same court's decision handed down four months
previously.
2. Whether that the Summary to the court's opinion
released to the public is erroneous and establishes faulty
authority.
3. Whether the Ninth Circuit's decision conflicts with
the Twigg decision handed down by the Third Circuit in
regards to fundamental fairness or "outrageous"
conduct.
4. Whether the Ninth Circuit's decision sanctions and
restricts the District Court from protecting the
Constitutional Rights of American citizens.
5. Whether in color of law and in violation of Title 42,
1983, the respondents sold the petitioner non stolen goods
for the sole purpose to cause the petitioner to lose his
liquor license so that the black customers would leave the
downtown redeveloping area.
6. Whether the District Court's fact-finding established
the fact that the petitioner had not been involved in stolen
property or food stamps before he was approached by the
police. There was no legal reason to set up the petitioner.
7. Whether petitioner was arrested and convicted
under a case law that is void. The case law attempt to
receive stolen goods, when the goods are not stolen, is
contrary to California Statutory Law 496 and is in
contravention of Article IV, section 9 of the California
Constitution so thereby void.
8. Whether the Ninth Circuit Appellate Court has
rendered a decision on “outrageous” government
conduct in conflict with the Third Circuit's decision in
the Twigg case upholding “outrageous” government
conduct.
9. Whether the attempt to receive stolen goods, when
the goods are not stolen, is an unconstitutional tool
designed to target minorities and take away "the gains"
that minorities have made as a result of Federal Civil
Rights Legislation.
10. Whether the District Court found the petitioner's due
process rights violated under color of law.
11. Whether the food stamp scheme violated the
petitioner's civil and due process right by being used in a
discriminatory manner.
12. Whether the Ninth Circuit's judgment and opinion
are wholly inconsistent with the facts which shows an
abuse of discretion.
Sate
ee
ie de
INTERESTED PARTIES
The interested parties are the following:
1. The United States Court of Appeals for the Ninth
Circuit.
2. The District Court for the Northern District of
California.
The petitioner knows of no other parties with the
exception of the State of California.
In addition, petitioner knows of no other related
matters in this Court.
All pertinent official opinions, of the Lower Court,
are located in the appendix.
///
///
///
TABLE OF CONTENTS
Issues to be Submitted
Interested Parties
Table of Contents
Table of Authorities,
Statutes, Constitutions, Footnote References
Introduction
Preliminary Statement of the Case
Statement of Case and Facts
Summation of the Facts
"Outrageous" Police Conduct
A. U.S. Supreme Court Ruling
United States v. Russell Condemns
"Outrageous" Police Conduct
B. Other Decisions Condemning
"Outrageous" Police Conduct
Shortcomings of the Ninth Circuit's Ruling
A. The Ninth Circuit Overlooked the
Following Facts that Violated Due Process
Rights of the Petitioner
B. The Ninth Circuit's Decision is Contrary to
the Facts in This Matter
C. Petitioner's Arrest was in Contravention
of the California Constitution
D. The Ninth Circuit's Decision in This Matter
Causes a Conflict to be Present with the
Third Circuit's Decision on the Twigg Case.
Requirement of Certainty
Conclusion
Appendix
11.
12.
TABLE OF AUTHORITIES
Greene v. U.S.
454 F.2d 783 (9th Cir. 1971)
Hampton v. U.S.,
425 U.S. 484, 495-496
Katenbach v. Morgan,
384 U.S. 641 (1966)
_Sherman v. United States,
356 U.S. 369 (1958)
Sorrels v. United States,
287 US. 435, 77 L.Ed.413 (1932)
U.S. v. Batres-Santolino,
521 F.Supp. 744 (N.D.Cal.1981)
U.S. v. Hammond,
598, F.2d 1015 (5th Cir. 1979)
U.S. v. Jannoti,
501 F.Supp. 1182 (E.D.Pa., 1980)
U.S. v. Johnson,
565 F.2d 179 (1st Cir. 1977)
U.S. v. McQuin,
612 F.2d 1193 (9th Cir. 1980)
U.S. v. Russell,
411 U.S. 423 (1973)
U.S. v. Twigg,
588 F.2d 373 (3rd. Cir. 1978)
STATUTES
Title 18, Section 242 11,18
Title 42, Section 1983 11,18
California Penal Code 496 13
CONSTITUTIONS
United States Constitution
14th Amendment 2,11,13,14
California Constitution
Article IV, Section 9 13,17
FOOTNOTE REFERENCES
DC = District Court's Opinion
CR =Court Reporter's Transcript } used
RT =Court Reporter's Transcript } interchangeably
ER = Excerpt of Record
NC =Ninth Circuit's Opinion
vi
INTRODUCTION
This appeal, for Petition of Certiorari, is dedicated
out of respect for the following persons:
1. Betty Dinardi who gave the Petitioner courage to
work within the law and to continue this matter into this
court.
2. The San Jose Mercury News reporter, Glenn
Bunting, who had the courage to print the “outrageous”
conduct of the San Jose Police.
3. The Santa Clara County Sheriffs Department,
that did not violate the petitioner's civil rights while he
was unconstitutionally confined.
4. The District Court Judge, the Honorable Robert P.
Aguilar, who had the courage to attempt to protect the
civil rights of all Americans and put an end to
“outrageous” police conduct.
5. The Ninth Circuit judges who had the courage to
apply the-law holding the City of San Jose responsible for
their “outrageous” conduct inflicted on the citizens and
employees that stood by the Petitioner even though being
constantly harassed and abused by the San Jose Police.
(84-1895)
6. Janine Player, barmaid, who has dragged out of
petitioner's bar, in handcuffs, for attempting to work for
petitioner.
7. Attorney Mark Schroeder who attempted to
defend the petitioner and was promptly arrested, losing
his license to practice law as a result of attempting to
defend the petitioner, and,
8. Reverend Martin Luther King, Jr., President
John F. Kennedy, President Lyndon Baines Johnson
and all Civil Rights persons who fought and suffered for
Civil Rights Legislation and due process of law.
Petitioner's petition to this court, concerning the
time, loneliness and efforts to submit this “outrageous”
matter to this court, is a small price to pay considering
what the above persons had to endure to preserve the
right for this petition to be possible.
After the court has reviewed the petitioner's opening
brief and exhibits, it is respectfully prayed that those
vii
people who made Civil Rights and dwe process of law
possible did not do so in vain, and please keep in mind all
the soldiers who bled and died for due process of law for
all Americans.
The petitioner has not ever been in the armed
services of this country. But, it appears that the
petitioner's purpose in life was not to go to war but to
bring to this court's attention as to what the above
citizens had to endure to preserve the right to bring this
matter to this court.
//i/
///
///
viii
PRELIMINARY STATEMENT OF THE CASE
A. Proceedings in the State Court
On July 27, 1981 petitioner, Ronald R. Shaw, was
convicted in the Santa Clara County Superior Court of
five counts of attempted receiving stolen property (Cal.
Pen. Code, section 664/496) and one count of
unauthorized possession of food stamps (Cal. Pen. Code
section 396) (ER 2, 47-48, 59) He was placed on probation,
sent to county jail for 12 months, and fined $2,000. (ER 2,
71, 160-161). The judgment was affirmed in an
unpublished opinion filed September 15, 1983 by the
California Court of Appeal, First Appellate District,
Division Five. (ER 59-64). The California Supreme Court
denied hearing. (ER 3, 49). Thereafter petitioner
petitioned for a writ of habeas corpus in the California
Supreme Court which was denied. (ER 10-14, 49, 157).
B. Proceedings in the District Court
The instant petition was filed August 10, 1984, in the
United States District Court, Northern District of
California ER 1). The District Court issued an order to
show cause on October 3, 1984. The court simultaneously
denied bail, with the denial to "remain in effect through
the entire dependency of this matter until its
disposition.” (ER 158-195). An answer was filed on
October 31, 1984 (ER 47 et seq.). On April 1, 1985 the
District Court dismissed the instant petition as moot
because petitioner had been released from custody (CR
18). After a letter from the California Attorney General's
Office (CR 19), and a notice of appeal filed by petitioner
(CR 21), the court, on April 26, 1985, vacated its order of
April 1, 1985 pending further consideration (CR 25).
On June 17, 1985 the court filed an “order granting
writ of habeas corpus," ordering petitioner's state
conviction "vacated" (ER 160-165). The respondents filed
a notice of appeal from the order on July 11, 1985 (ER
166). On July 189, 1985 the court filed a "judgment"
pursuant to its earlier order, which was entered in civil
docket on July 31,1985 (ER 168). On August 20, 1985 the
respondent filed an "amended notice of appeal" to make
clear the appeal is from the judgment (ER 169).
C. Proceedings in the Appellate Court for the Ninth
Circuit
On August 11, 1986 the United States Court of
Appeals for the Ninth Circuit reversed the United States
District Court's judgment.
On August 20, 1986, petitioner filed a petition for
rehearing.
On September 5, 1986, the Appellate Court denied
petitioner's petition for rehearing.
On September 22, 1986, petitioner filed a Notice of
Appeal.
On September 24, 1986, petitioner mailed an
amended Notice of Appeal.
On October 19, 1986, the Supreme Court of the United
States Clerk's Office received a petition for extension of
time from the petitioner.
Shortly thereafter, the Clerk's Office received forty
briefs from the petitioner.
The petition for time and the briefs were returned
because they all were done incorrectly.
On December 2, 1986, petitioner used Federal
Express and sent to the Clerk's Office a corrected
application of extension for time.
On December 9, 1986, petitioner received an order
granting petitioner time for filing a petition extended to
and including January 3, 1986. Said order had been
signed by Honorable Sandra D. O'Conner, Associate
Justice.
D. Subject Matter Jurisdiction
The District Court had jurisdiction over this habeas
corpus matter. (28 U.S.C. section 2241)
E. Appellate Court's Jurisdiction over the Appeal.
The Ninth Circuit had jurisdiction of this appeal,
pursuant to title 28 U.S.C. section 2253.
F. This Court has Jurisdiction of this Appeal Pursuant
to Title 28 U.S.C. section 2254.
G. Timeliness of Appeal.
The appeal is timely. The notice of appeal was filed
within 30 days of the judgment or order.
///
///
ae
xi
STATEMENT OF CASE AND FACTS
Undercover police officer Emmons gave the
petitioner extensive advice as to how to pass the food
stamps and reassured petitioner that he would not get
into trouble. DC:5 see Exhibit A. Moreover, he suggested
to petitioner for petitioner to attempt to obtain cash from
a store.
Over the course of months Emmons initiated the
sale of food stamps to the petitioner. The police initiated
all sales.
All food stamp booklets had the usual warning
labels of unauthorized use removed.
There is no evidence that the petitioner had ever
been involved in the receipt of stolen property or food
stamps.
The District Court stated the sole purpose of these
actions was that of leading the petitioner into
committing a crime which the police could supervise
and for which they could then arrest the petitioner. See
Exhibit B (DC 5:21).
The District Court's fact-finding found the facts
shocking to the universal fundamental of fairness and
issued a writ of habeas corpus on "outrageous" grounds.
The state investigating officer, Emmons, the prime
witness, admitted being intoxicated during the
investigation. See Exhibit C.
USDA Ann Littleton's testimony implied that San
Jose Police committed perjury to obtain the food stamps
to sell to the petitioner. See Exhibit B.
The first scheme of the San Jose Police failed, in
that, Emmons requested some men's clothes if anyone
happened to come into the bar selling clothes. Within 24
hours an unidentified man entered the petitioner's bar
and asked the petitioner if he knew of anyone who can fit
into size 44 clothes. Petitioner was supposed to buy the
clothes cheap and sell the clothes to Emmons. The
clothing scheme was done under color of law in violation
of Title 42. (RT: 89, 90, 91).
The food stamp scheme was done under color of law
and in a discriminatory fashion in that:
a) acting under color of law and deceitfully
removing the warning labels from the food stamp
booklets for the sole purpose to cause the petitioner to
commit a crime and lose his liquor license;
b) acting in a discriminatory fashion, the San Jose
Police refused to sell the stamps to non-blacks even
though the non-blacks requested some of the stamps;
c) the San Jose Police did not attempt to try to sell
any white bar owner food stamps.
The above unconstitutional conduct of the
respondents shows that the treatment of petitioner was
arbitrary; unreasonable; and was intentional and
deliberate discrimination against petitioner on account
of racial reasons.
The San Jose Police violated the petitioner's civil and
due process rights under the 14th Amendment of the
United States Constitution in that the San Jose Police are
enforcing a case law, attempt to receive stolen goods,
when the goods are non-stolen, which said law is
designed and is only enforced against non-whites, in a
fashion that abridges the privileges of black citizens and
other minorities and violates the Equal Protection and
due process clauses.
The facts clearly show that there was no reason for
the San Jose Police to target the petitioner except to cause
his bar to close.
The petitioner has maintained throughout this
matter that his constitutional rights have been violated
by the unconstitutional conduct of the San Jose Police.
///
Ae
ae
SUMMATION OF THE FACTS
The Appellate Court's opinion states that Emmons
was part of an undercover operation that was aimed at
dealers in stolen property, and Emmons became a
regular customer (NC 1:18).
Spending 11 months in petitioner's bar and only
arresting the petitioner and the only way to be able to
arrest the petitioner was for Emmons to sell his own
property shows a poor showing for the taxpayers’ money.
The petitioner was not a dealer in any illegal operation.
The facts show that there is no evidence that
petitioner has ever been involved in stolen property. The
San Jose Police had no legal reason to set up the
petitioner.
Furthermore, the facts show that petitioner has been
denied due process of law and his civil rights have been
violated.
The only reason that petitioner was sold the food
stamps was to cause the bar to lose its license and cause
the black citizens to leave the area. The results speak for
themselves. The white bar is still open and the area has
no black citizens in site. Petitioner had to pay eight
months of freedom and lost his business just so the City
of San Jose could get rid of black American citizens.
The Ninth Circuit determination condones the
racial policies of the City of San Jose and gives the go-
ahead to continue with that policy.
The petitioner's brief in the Ninth Circuit proved the
respondents were wrong; so wrong that the respondents
refused to answer the facts that were called to their
: But ; i ceaikaith o tea, brief
that evaded the facts.
The Appellate Court handed down a decision and
opinion on April 28, 1986, finding the San Jose Police
violated the constitutional rights of the petitioner. (No.
84-1895)
The Court stated:
"We hold that there were sufficient
allegations in the complaint that there was a
City policy of discriminatory law
enforcement and that the municipal
, ;
Seniesa ‘itutional rights”
On August 11, 1986, the same Appellate Court,
Ninth Circuit, 4 months later, found the respondents
acted properly in setting up petitioner. There is a conflict
present with the two opinions.
The City of San Jose and the San Jose Police acting
in bad faith and in conspiracy with the California
Alcoholic Beverage Control caused the petitioner to be
denied equal protection and equal treatment under the
law causing the State of California to deprive the
petitioner of valuable property, his bar license and
income from a lawful bar business in contravention of
the State and Federal Constitutions.
The Court overlooked the fact that the respondent's
intentional conspiratorial conduct under the color of law
and authority of the State of California was without due
process of law; in that, the respondents intimidated all
attorneys and caused the attorneys to refuse to defend the
petitioner because he is black and owned a black bar in
downtown San Jose. The petitioner was forced to defend
himself. On pages 1 and 2, respectively, of the
petitioner's brief in the Appellate Court, informs the
court that he was denied counsel as a result of the
unconstitutional conduct of the respondents.
HE
///
fir
"OUTRAGEOUS" POLICE CONDUCT
that this matter at bar is a perfect example of
This Court reversed the matter in United States v.
Russell [U.S. v. Russell 411 U.S. 423, 93, SCT 1637 36
Licd, 2d 366 (1973)].
In the Russell matter, the defendants presented this
Court with two theories.
First, the government supply of P-2-P constituted
entrapment as a matter of law regardless of
predisposition.
Second, the police conduct was so repugnant that
due process principles barred prosecution.
This court reversed as to both theories. The court
held that the absence of predisposition is the focal point of
the entrapment defense. Since the defendant conceded
predisposition, that defense could not be raised.
On the second theory this court explicitly left the
defense available but decided that it was not applicable on
the facts of the case. The 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 processes
to obtain a conviction."
Petitioner believes that this instant matter is
distinctly of that breed and the day has surely come. This
Court also stated that:
"in the Russell matter the agents’
contribution of propanone to the criminal
enterprise already in process was scarcely
objectionable."
The court added:
"the law enforcement conduct here stops far
short of violating that ‘fundamental
fairness,’ shocking to the universal sense of
justice mandated by the due process clause of
the Fifth Amendment." (411 U.S. AT 431-32,
935CT)
This Court went on to make an important point in
the Russell matter:
Py no pe eygenemes teree a raptor anor ld
which began before the government agent
happened on the scene.” (Jd at 436, 93 S.Ct. at
1645)
In this matter, the petitioner was not an active
participant in any illegal activity. Petitioner was
minding his own legal business.
The food stamps scheme was initiated and
completed by the San Jose Police in order to close the bar
and cause black citizens to leave the area.
The San Jose Police were involved in this matter
from the start to finish. No crime would have been
committed if the police had not created the
unconstitutional food stamp scheme.
Furthermore, no crime was committed because the
food stamps were non-stolen.
The Appellate Court ignored the facts in this matter.
The defense has been adopted by the Ninth Circuit.
Greene v. United States, 454 F.2d 785 (9th Cir. 1971);
United States v. Batres-Santolino, 521 F.Supp 744 (N.D.
Cal. 1981). In the federal courts, the matter is a question
of law for the court to decide, United States v. McQuin,
612 F.2d 1193, 1196 (9th Cir. 1980), and is accordingly
available to a defendant who is "predisposed" to commit
the crime.
B. Other Decisions Condemni
“Outrageous” Police Conduct
The precise bounds of the defense are only generally
defined by the available case law, but it is clear that the
due process defense is available when the extent of
government involvement in the criminal enterprise
assumes objectionable proportions. The defense is
designed to preclude prosecution in circumstances
where police over-involvement in the fabrication and
commission of the crime is "outrageous" as it was here.
See United States v. Twigg, 588 F.2d 373, 379 (3rd Cir.
1978); United States v. Johnson, 565 F.2d 179, 181 (1st Cir.
1977); United States v. Hammond, 598 F.2d 1015 (5th Cir.
1979).
An example of police-created crime which raises
due process implications is another Abscam-like
decision, United States v. Jannotti, 501 F. Supp. 1182,
1189 (E.D.Pa, 1980), where the district court set aside a
jury verdict and entered judgment of acquittal on
grounds of due process governmental overreaching. Jd.
at 1205.
The defendants there had been convicted of various
crimes, including bribery and conspiracy, in an
Abscam-type operation. The court concluded in
dismissing the charges:
(Emphasis added).
In United States v. Batres-Santolino, supra, the
defendants were indicted for conspiracy to import
cocaine and conspiracy to possess cocaine with an intent
to distribute it. A government agent met the defendants
at the home of a friend and they discussed cocaine. The
agent suggested he had a source and offered to supply
substantial quantities to defendants. The transaction
took several months to consummate, the agent
promising a lucrative source of supply if defendants
signed on. An agreement was finally reached and
defendants were arrested shortly thereafter while
making preparations to pick up the cocaine.
The district court, Patel, J., dismissed the action on
due process grounds despite the fact that the defendants
were not entirely free from culpability on account of the
overreaching governmental activity:
"This is a case of that distinguishable variety
posed in Sherman and Russell where the
‘criminal! design originates with the officials
of the Government, and they implant in the
mind of an innocent person the disposition to
commit the alleged offense and induce its
commission in order that they may
prosecute. Sherman v. United States, 356
U.S. at 372, 78 S.Ct. at 820, 2 L.Ed.2d 848),
quoting Sorrells v. United States, 287 U.S. at
442, 53 S.Ct. at 212, 77 LEd. 413.
"Although the defendants in this case are not
without some culpability, they were not
embarked or about to embark on any
j ."Id. at p.
752. (Emphasis added)
Whether the conduct is outrageous is a matter of
degree and relativity. The more serious the crime, the
greater the justification, naturally, for invasive police
techniques designed to ferret out such activities. Thus,
the cases have discussed the severity of the criminal
activity in comparison to the extent of police involvement.
The Twigg court noted:
"We are adhering to Justice Powell's
reasoning in Hampton v. United States, 425
U.S. 484, 495-496 that in evaluating whether
government conduct is outrageous, the court
must consider the nature of the crime and
the tools available ‘o law enforcement
agencies to combat it.”
The discussion of the facts of this case as applied to
entrapment analysis is applicable to this parallel
constitutional defense of outrageous police over-
involvement in the creation of crime as well. The police
investigation of petitioner was irresponsible and
i . 7 it
7 " Particularly
opposite here, however, is the test proposed by Justice
Powell in Hampton v. United States. Here, the crime
with which petitioner is charged is a minor one -- not
involving violence or posing a substantial threat to
society -- and there exists a variety of other means
available to the police to combat it other than selective
programs designed to test the virtue of San Jose
residents..
Accordingly, petitioner submits that even if
entrapment did not preclude his prosecution, his
constitutional right of due process would do so under the
Russell and McIntire principles of “outrageous govern-
ment conduct.”
A government acts outrageously when it acts
irresponsibly and negligently with little regard for little
apparent social utility and unmindful of the human
costs it wrecks by virtue of its activities.
The court also stated that Emmons gave the
petitioner some hints no how to pass the stamps. (NC 2:2)
The facts show that Emmons did move than hinted.
The facts show:
1. That Emmons assured the petitioner that he
could not get in trouble for what he was doing with those
food stamps (RT: 177).
2. That Emmons told petitioner on several occasions
that the petitioner could not get in trouble (RT: 168).
3. That Emmons deliberately lied to petitioner in
several different ways (See Exhibit C).
The facts show that Emmons approached the
petitioner and told the petitioner that he dealt in
discontinued merchandise and bought and sold items.
The Ninth Circuit's decision and opinion condones
the outrageous and deceitful conduct that was inflicted
on the unsuspecting and friendly petitioner.
The District Court was correct in attempting to
protect all Americans from the above outrageous
9
EE
conduct. By deeming the police conduct as
unconstitutional and "outrageous."
Following the guidelines handed down by this Court
in the Russell matter, petitionc > believes this matter at
bar establishes what is meant by fundamental fairness
or “outrageous " police conduct shocking to the universal
sense of justice mandated by the due process clause.
The case law attempt to receive stolen goods when
the goods are not stolen was designed and is used
against minorities to take away civil rights that were
gained under Civil Rights Legislation.
The attempt to receive in this matter was used in a
discriminatory fashion. In that, the petitioner was the
only person sold the non-stolen goods, even though
others attempted to purchase the stamps from Emmons.
(See Exhibit C.)
The Ninth Circuit's decision condones the racial
policy of the City of San Jose and the conduct of its police
department giving the go-ahead to continue to sell non-
stolen goods to American citizens in order to destroy
citizens that San Jose disfavors.
American Sense of Justice was founded on the
following Sense of Justice:
"It is better to allow ten guilty men to go free, then to
convict one innocent man.”
///
//]
// i
10
SHORTCOMINGS OF
THE NINTH CIRCUIT'S RULING
A. The Ninth Circuit Overlooked
the Following Facts
that Violated the
DueP Rights of the Petiti
1. The court overlooked the laws that protect black
citizens from the deceitful and unconstitutional conduct
of the police.
2. The petitioner called the Court's attention to Title
18, Section 242 which makes it criminal for the state to
unlawfully act under color of law and violate the
constitutional rights of the petitioner.
3. The facts show that petitioner was targeted for the
sole purpose to cause his bar to close so that black
citizens would leave the area. The San Jose Police
engaged in deliberate, vexatious conspiratorial conduct,
under color of law, with the intended purpose to violate
the civil rights of the petitioner because he is black and
his customers were sixty-percent black. The food stamp
scheme was not attempted on the white bar and owner
located 80 feet from the petitioner's bar.
4. The sole purpose of targeting the petitioner was to
close his bar and drive the black citizens out of the San
Jose downtown area.
5. The petitioner called to the Court's attention that
the San Jose Police acted in bad faith and violated
petitioner's civil rights and a large number of black
citizens that patronized petitioner's bar. The conduct of
the San Jose Police was done under color of law in
violation of Title 42, Section 1983, Title 18, Section 242,
and the 14th Amendment Equal Protection and due
process clauses of the United States Constitution.
6. The San Jose Police committed perjury to obtain
the food stamps by falsely stating to the USDA special
agent that the petitioner was a fence.
11
—- a
a to the Facts in this Matt
The Court's opinion states: "That the police officer
Emmons was part of an undercover operation that was
aimed at dealers in stolen property and Emmons became
a regular customer.” (CA: 1).
The facts show that Emmons spent one year in
petitioner's bar and was constantly under the influence
of alcohol and by reference of the California driving
charts, Emmons was legally drunk. The Court should
have taken a dim view of Emmons' statements. (Exhibit
A.)
In addition, the facts show that petitioner was the
only citizen out of eighty cases of the undercover
operation that was sold non-stolen goods and
subsequently arrested for buying the goods. All others
sold stolen goods to the undercover operation.
Furthermore, the operation was set up to buy stolen
goods, not to sell non-stolen goods to a citizen.
The facts clearly show that there is no evidence that
the petitioner had ever been involved in stolen property.
The San Jose Police had no legal reason to set up the
petitioner.
The police conduct was "outrageous" and violated
the due process rights of the petitioner. In addition, the
police committed perjury to obtain the food stamps from
the USDA. (Exhibit B)
The facts show that petitioner has been denied due
process of law and his civil rights have been violated.
The sole purpose that the San Jose Police sold
petitioner non-stolen goods was to cause petitioner's bar
to close and cause black American citizens to leave the
downtown redeveloping area. The results speak for
themselves. The white bar is still open for business and
the area has no black citizens in sight.
Finally, the evidence clearly shows that the warning
labels were removed from all food stamp booklets, so that
the petitioner would be deceived.
12
California case law, attempting to receive stolen
goods, when the goods are not stolen, is in direct
contravention of the California Constitution and
California statutory law Penal Code 496. Thereby, it is
unconstitutional and in violation of the 14th Amendment
due process clause of the United States Constitution.
Article IV, section 9, of the California Constitution
states:
"A statute shall embrace but one subject,
which shall be expressed in its title. If a
statute embraces a subject not expressed in
its title, only the part not expressed is void. A
section of a statute may not be amended by
reference to its title."
California statutory law Penal Code 496 states:
"Every person who buys or receives any
property which has been stolen or which has
been obtained in any manner constituting
theft or extortion,
so stolen or obtained, or who conceals, sells,
withholds or aids in concealing, selling or
withholding any such property from the
:
ey (cues ned.”
Nowhere does California statutory Penal Code 496
express non-stolen goods.
The state authorities are enforcing a case law which
is in contravention of the California Constitution and
contrary to California statutory law, to embrace a subject
not expressed in its title, and is thereby void and
unconstitutional.
13
This Court has stated:
"That the Fourteenth Amendment under the
Enabling Clause in section 5: Congress has
the power to remedy state discrimination
that it finds denies someone equal protection
and state action that it finds violates due
process; and the Court will uphold such
federal legislation as long as it can perceive a
basis for the congressinal determination.”
[Katzenbach v. Morgan, 384 U.S. 641 (1966))
Congress has passed numerous federal laws to
conbat State discrimination under color of law. Sections
1343, 242, 1983 and a host of others to ensure that the due
process rights of American citizens are not violated by
the awesome power of the state.
The District Court investigated this matter and
found “outrageous” police conduct. The District Court
was attempting to adhere to guidelines of the United
States Supreme Court and Ninth Circuit in finding that
the due process rights of the petitioner were violated by
the San Jose Police.
— na
Lay a ey ey yer C Conflict
(U.S. v. Twigg 588 F.2d 373 (1978)]
The Ninth Circuit's reversal of the District Court's
judgment causes district courts to be confused as to what
is meant by "outrageous" government conduct.
Moreover, the opinion is contrary to the facts and to
this Court's intentions to protect black citizens from
“outrageous” discrimination and colorable unconstitu-
tional conduct by the states.
The Ninth Circuit Court's opinion condones the
unconstitutional conduct of the San Jose Police and
restricts the power of the district courts to combat police
14
conduct that violates the universal fundamental fairness
doctrine.
The District Court attempted to follow this Court's
efforts to stop the discriminatory conduct of the police
when the facts showed a basis for the District Court's
intervention.
The Appellate Court's reversal takes away the
power of the District Court to carry out the efforts of this
Court and Congress.
The District Court found no constitutional reason for
no fom Bete Malin | 7¢ 3]
him (DC 5:21).
The facts show that petitioner had not ever been
involved in stolen property or food stamps.
It was obvious to the District Court that the sole
purpose that petitioner was sold non-stolen food stamps
was to cause petitioner to commit a crime so that the
police could arrest him.
Petitioner prays that the United States Supreme
Court will resolve this long-standing conflict as to what
this Court deems “outrageous government conduct."
The District Court's fact-finding found that the San
Jose Police caused and induced petitioner to violate
California case law that petitioner was not predisposed to
commit.
Further fact-finding convinced the District Court
that the San Jose Police falsely claimed that its goal was
to ferret out the distribution of stolen food stamps, but
police activities did not reflect that alleged goal (DC 5:25).
The District Court emphatically and correctly stated:
“That there was no evidence that petitioner
was involved in stolen property before
approached by the San Jose Police." (DC 5:17)
Petitioner had to pay the loss of his business and
eight months of freedom so that the City of San Jose
could get rid of black American citizens.
15
REQUIREMENT OF CERTAINTY
Federal Case Law Grayned v, City of Rockford
ene or oo —ga
"A statute must give fair warning of the
conduct that it makes a crime. It must be
sufficiently explicit to inform those who are
subject to it exactly what conduct on their
part will render them liable to its penalties.
Moreover, the requirement of certainty
prevents arbitrary and discriminatory
enforcement of criminal statutes. It assures
explicit standardes to guide the police as well
as the public." Grayned v. City of Rockford
(408 U.S. 104 1972)
The authorities are covertly enforcing the non-stolen
case law of attempting to receive stolen property, when
the property is non-stolen, in an arbitrary and
discriminatory manner in contravention of the
guidelines handed down by this Honorable Court.
The non-stolen case law is being deceitfully and
covertly used against unsuspecting citizens that are in a
disfavored position with government authorities.
The checks and balances built in the United States
Constitution, to ensure due process, have been
circumvented by the government authorities. The non-
stolen case law does not give fair warning of the conduct
that it makes a crime and does not describe the conduct
required. Moreover, it is void and therefore illegal.
Petitioner believes that the non-stolen case law does
not follow the guidelines of this Court because itis not
designed to follow the due process guidelines but was
covertly designed to be used as a "tn "; in
that, if the disfavored citizen cannot be found to have
dirty hands then as a last resort the unconstitutional,
illegal and voided non-stolen case law is to be deceitfully
used. The petitioner was offered a deal to plead guilty to
16
one charge and all others would be dropped, which
petitio-er refused.
The Santa Clara County District Attorney's office
and all parties knew that the petitioner was not guilty of
the non-stolen case law because of being voided by Article
IV, section 9 of the California Constitution and the
guidelines handed down by this Honorable Court.
Employees of the District Attorney's office attempted
to covertly correct the outrageous charges by deceitfully
adding an equal number of possession of food stamps
charges praying that the jury would correct their
unconstitutional and deceptive scheme finding the
petitioner guilty of possession of food stamps.
When that scheme failed, the District Attorney's
office intimidated all attorneys from defending the
petitioner after this matter had reached federal courts.
In an attempt to deter petitioner and to aid the state
authorities, one attorney advised the petitioner that he
had no basis for a writ of habeas corpus or an appeal for
civil suit.
The attorney refused to return any portion of the
$2,890.00 that was paid to him even though the Santa
Clara Bar Association had awarded $2,550.00 to be
returned to the petitioner. The attorney refused to return
the money for the sole purpose to deter the petitioner
from hiring another attorney. Details are in petitioner's
brief submitted to the appellate court.
Surely, this Court can see, from the facts presented,
that this matter is no longer a matter concerning the
petitioner but is a threat to a large segment of the public
that are disfavored by the state authorities.
The district court was correct in attempting to
protect all American citizens from "outrageous" govern-
ment conduct.
The district court did not gain any state government
friends by correctly deeming this matter as
“outrageous”; but, on the other hand, the district court
can have a clear conscious knowing that the court
upheld its sworn duty to uphold the United States
Constitution and protection of all American citizens
from “outrageous” government conduct.
17
CONCLUSION
It is respectfully prayed that the judgment of the
United States Court of Appeals for the Ninth Circuit be
reversed and the District Court's judgment be held to be
valid on the fundamental fairness doctrine, or
alternately, the respondents be held responsible for
violating the petitioner's civil rights under Title 18,
* section 242, Title 42, section 1983, and for acting under
color of law.
Petitioner respectfully prays that a Writ of Certiorari
be granted.
Respectfully submitted,
18
APPENDIX
19
10.
APPENDIX CONTENTS
. ORDER #85-2285, 9th Cir. Ct. of Appeals,
Shaw v. Winter, (D.C. No. C-84-20530-RPA)
5 Sep 86
OPINION #85-2285, 9th Cir. Ct. of Appeals,
Shaw v. Winter ,11 Aug 86
ORDER Granting Writ of Habeas Corpus,
U.S. District Ct., Northern District of Calif.,
Shaw v. Winter, 17 Jun 85
LETTER of Notice of Extension for filing
Writ of Certiorari, Asst. Clerk U.S. Supreme
Court to Ronald Shaw, 8 Dec 86
ORDER Extending time to file petition for
Writ of Certiorari, Assoc. Justice
Sandra D. O'Connor, 8 Dec 86
CONSTITUTION OF CALIFORNIA
ARTICLE IV, Sec. 9 , "Statute Titles"
CALIFORNIA PENAL CODE,
§496, "Crimes Against Property:
Receiving Stolen Property,” and
§664, "Crimes and Punishment:
Attempts, punishment”
EXHIBIT A -
Excerpt, Emmons Testimony at ABC Hearing
Re: Drinking, non-stolen nature of goods
EXHIBIT B --
Excerpts, Littieton Testimony at State Trial
Re: Knowledge of Petitioner from San Jose
Police, warning labels on food stamp books
EXHIBIT C -
Excerpts, Emmons Testimony at State Trial
Re: Advice & Assurance to Petitioner,
Selling solely to Petitioner
APPENDIX 1
12
13
14
15
16
11. EXHIBIT D --
Excerpts, Emmons Testimony at State Trial
Re: Value of Alcoholic deverages
12. AFFIDAVIT in Request of Search Warrant
Re: Alcoholic Beverages, 26 Sep 80
13. AFFIDAVIT in Support of Search Warrant
Re: Alcoholic Beverages, 26 Sep 80
14. EXHIBIT E --
Petitioner's Petition Filed in Ninth
Circuit Court
INTRODUCTION
Appellee's Preliminary Statement
Statement of the Case
Material Facts & Laws Overlooked
15. PROOF of Service by Mail
APPENDIX 2
& BFR 2
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Ronald R. Shaw, )
Petitioner-Appellee, ) No. 85-2285
)
v. ) D.C. No.
) C84-20530-RPA
Sheriff Winter, )
Respondent-Appellant ) ORDER
Filed September 5, 1986
Before: Charles M. Merrill, Herbert Y.C. Choy, and
Anthony M. Kennedy, Circuit Judges.
Blair W. Hoffman, San Francisco, California, for the
respondent appellant.
Ronald R. Shaw, Pro Per, San Jose, California, for the
petitioner-appellee.
The petition for rehearing of Shaw v. Winter ...
F.2d... (9th Cir. 1986) is denied.
The earlier case, Shaw v. California Department of
Alcoholic Beverage Control, 788 F.2d 600 (9th Cir. 1986),
does not involve the food stamp sales at issue in the
present habeas corpus case. See id at 610. That case
involved charges of racially motivated harrassment
that are not at issue in the present case. The record in
the present case, including the transcript of Ronald
Shaw's trial for attempted receipt of stolen property and
APPENDIX 3
j
———E———
oOo
unauthorized possession of food stamps, contains no
evidence of racial discrimination. The result in the
present case has no bearing on the merits of the Shaws’
lawsuit under 42 U.S.C. § 1983 (1982), in which they are
free to proceed in accordance with this court's opinion
published at 738 F.2d 600.
//f
///
f/f
APPENDIX 4
| a
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Ronald R. Shaw,
)
Petitioner-Appellee, ) No. 85-2285
)
v. ) D.C. No.
) (C-84-20530-PPA
Sheriff Winter, )
Respondent-Appellant ) OPINION
Appeal! from the United States District Court
for the Northern District of California
Honorable Robert P. Aguilar, District Judge, Presiding
Argued and Submitted June 10, 1986
San Francisco, California
Before: MERRILL, CHOY, and KENNEDY, Circuit
Judges
MERRILL, Circuit Judge:
The State of California appeals from the grant of
Ronald R. Shaw's petition for habeas corpus.
As part of an undercover operation aimed at
dealers in stolen property, San Jose Police Officer
James L. Emmons became a regular customer at the
bar that Shaw operated. Shaw introduced Emmons to
someone who sold Emmons some steeply discounted
suits of clothing. Emmons in turn sold Shaw a
microwave oven for a fraction of its value.
Over a period of several months, Emmons sold
Shaw food stamps at forty per cent of their face value.
Emmons took the lead in offering the stamps in
arranging the sales. He told Shaw that the stamps were
stolen but that Shaw would have “no problem” with
them. Emmons also gave Shaw some hints on how to
pass the stamps. While there is no evidence that Shaw
had dealt in food stamps before, once they were
APPENDIX 5
cieeeaneteeeaninetnlle
available he purchased them willingly and without
pressure.
On the food stamp purchases, a California jury
found Shaw guilty of attempting to receive stolen
property. Cal. Penal Code §§ 664, 496. (West 1986). The
jury also convicted him of unauthorized possession of
food stamps. Cal. Welf. & Inst. Code § 10980 (formerly
Cal. Penal Code § 396). It rejected his state law
entrapment defense. These convictions were affirmed
in the state courts. The district court, relying on the
state court trial record, granted Shaw's federal habeas
corpus petition. It ruled that Emmons’ tactics
constituted "outrageous government conduct," barring
prosecution under the due process clause.
We reverse. Government conduct is "outrageous"
so as to preclude prosecution only when it is a violation
of "fundamental fairness, shocking to the universal
sense of justice." United States v. Russell, 411 U.S. 423,
432 (1973), quoting Kinsella v. United Staies, 361 U.S.
234, 246 (1960). See United States v. Bogart, 783 F.2d
1428, 1432 (9th Cir. 1986); United States v. Bagnariol, 665
F.2d 877, 881-83 (9th Cir. 1981) (per curiam), cert.
denied, 456 U.S. 962 (1982). A defendant who fails to
show entrapment can still claim "outrageous conduct,"
but only "if he was subjected to police conduct
repugnant to the American system of justice." United
States v. Lomas, 706 F.2d 886, 891 (9th Cir. 1983), cert.
denied, 464 U.S. 1047 (1984).
The police conduct here was not so shocking as to
violate this standard. Government agents are permitted
to assume false identities in order to gain the
confidence of their targets. United States v. Marcello,
731 F.2d 1354, 1357 (9th Cir. 1984). They may supply the
contraband which is at the heart of the offense.
Hampton v. United States, 425 U.S. 484 (1976)
(government may supply the illegal drug which the
defendants are convicted of selling). In playing out
their undercover roles, such agents may "coach" their
willing suspects. United States v. Williams, 705 F.2d
603, 620 (2nd Cir.), cert. denied, 464 U.S. 1007 (1953).
Emmons did not transgress permissible bounds.
Other courts have rejected the "outrageous
conduct” defense in food stamp "sting" cases. United
APPENDIX 6
States v. Lambinus, 747 F.2d. 592, 595-96 (10th Cir. 1984),
cert. denied, 105 S.Ct. 2143 (1985), United States uv.
Salazar, 720 F.2d 1482, 1488 (10th Cir. 1983), cert.
denied, 105 S.Ct. 789 (1985); United States v. Parisi, 674
F.2d 126 (1st Cir. 1982). The "most effective way to catch
and deter retailers or others who would deal in bulk in
stolen food stamps may be for the government itself to
provide the stamps to the willing buyers." Parisi, supra,
674 F.2d at 127. We agree with and apply that reasoning
here. See also United States v. Abushi, 682 F.2d 1289,
1297 n. 4 (9th Cir. 1982).
Shaw relies on the only two cases where federal
appellate courts have upheld the "outrageous
government conduct” defense. United States v. Twigg,
588 F.2d 373 (3rd Cir. 1978); Greene v. United States, 454
F.2d 783 (9th Cir. 1971). The police involvement in the
illegal activity here was not as long or deep as it was in
those cases.
REVERSED.
rey
///
///
APPENDIX 7
<<
La
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Ronald R. Shaw, )
Petitioner ) NO.
) C-84-20530 RPA
v. )
) ORDER GRANTING
Sheriff Winter, ) WRIT OF
Respondent ) HABEAS CORPUS
The Court has received and considered the
documents submitted by counsel, and, good cause
appearing therefor, enters the following order.
On July 27, 1981, petitioner Shaw was convicted of
five counts of attempted receipt of stolen property
arising out of Shaw's purchase of food stamps from an
undercover police officer on several occasions in 1980.
Shaw was also convicted of one count of unauthorized
possession of food stamps stemming from the discovery
of food stamps in Shaw's possession at the time of his
arrest. The convictions were part of a “sting” operation
by the San Jose Police Department. Shaw was placed on
probation and given a sentence of twelve months in the
county jail and a fine of $2000. Shaw brought this
petition for a writ of habeas corpus while still
incarcerated in Santa Clara County Jail.
Although Shaw has since been released, his
petition is not moot. Because of the "collateral
consequences” which having a felony conviction
entails, including many disabilities and limitations in
employment and public sevice, a petitioner's stake in
this petition for a writ of habeas corpus remains
substantial even after the sentence imposed has been
served. Carafas v. LaVallee, 391 U.S. 234, 237 (1968).
Shaw has challenged his conviction on several
grounds. The evidentiary challenge to the admission of
audio and video tapes is not within the scope of federal
habeas review because the objections raised were not
raised at trial. Shaw must show cause for this failure to
APPENDIX 8
“
z
|
:
{
object, and he has not done so. Thus Garrison v.
McCarthy, 653 F.2d 374 (9th Cir. 1981).
Shaw raises the defense of police entrapment.
Because the jury determined petitioner's state law
entrapment claim, he is not entitled to federal habeas
review of it. Since he was not charged under federal
law, he cannot raise the defense under federal law.
However, Shaw is entitled to raise another type of
entrapment defense, often referred to as the
“outrageous government conduct” defense, and in fact
his claim under this defense is meritorious.
This defense poses the question of whether the
government's conduct was so outrageous that it
violated Shaw's due process rights. U.S. v. Russell, 411
U.S. 423 (1973). The Ninth Circuit has continued to
recognize this defense even after Hampton v. U.S., 425
U.S. 484 (1976), because in that case only three Justices
expressed disapproval of it. U.S. v. Prairie, 572 F.2d
1316, 1319 n. 3 (9th Cir. 1978); U.S. v. Marcello, 731 F.2d
1354 (9th Cir. 1984). Whether or not there was a due
process violation is a question of law. U.S. v. McQuin,
612 F.2d 1193 (9th Cir. 1980), cert. den. 445 U.S. 954
(1980). Unlike the statutory entrapment defense, the
outrageous government conduct defense is available
even to a defendant who is "predisposed" to commit the
crime. U.S. v. Wylie, 625 F.2d 1371, 1377 (9th Cir. 1980),
cert. den. 449 U.S. 1080 (1981).
In the reported cases involving this defense, its
success has turned on the degree of the government's
involvement in and instigation of the criminal activity.
Where defendants were already engaged in that
particular activity, or were actively seeking to become
involved in it, and government agents simply joined in
an ongoing venture or responded to defendant's
overtures, the government's conduct was not
considered outrageous. See e.g. U.S. v. Russell, supra;
U.S. v. Lomas, 706 F.2d 886, 891 (9th Cir. 1983).
Federal courts have upheld this defense where the
defendants would not have been able to commit the
crimes without the government's assistance and
instigation. U.S. v. Twigg, 588 F.2d 373 (3rd Cir. 1978)
(drug manufacturing); U.S. v. Batres-Santolino, 521
APPENDIX 9
F.2d 744 (N.D. Cal. 1981) (drug smuggling); Greene v.
U.S., 454 F.2d 783 (9th Cir. 1971) (bootlegging).
In Greene, a government agent contacted the
defendants some time after they had been arrested on
bootlegging charges, and suggested that they start their
bootle gging operation again. He provided supplies and
equipment, and used veiled threats to urge them to
continue the operation. He was the only purchaser of
the contraband. The court held that the government
was so enmeshed in the criminal activity that the
defendants’ due process rights would be violated by
permitting the convictions to stand.
In Twigg, an agent proposed the establishment of a
speed laboratory, and supplied the equipment and the
essential ingredient. The agent was in charge of
production of the drug and taught the defendants how
to manufacture it. The court held that this constituted a
"demonstrable level of outrageousness" and reversed
the convictions.
In this case, Shaw was approached in the bar he
owned by an undercover officer. The officer, Emmons,
was part of a "sting" operation designed to uncover
distribution networks for stolen property. Emmons
initiated several transactions with Shaw over the
course of several months in early 1980, in which goods
from unidentified sources exchanged hands. In April,
1980, an officer from the vice unit contacted Emmons
and informed him that the Department of Agriculture
was attempting to determine where and how stolen food
stamps were distributed. It was agreed that Emmons
would offer the stamps for sale to various people,
including Shaw. Through conversations in person and
on the phone, only some of which were recorded,
Emmons suggested to Shaw that he buy the stamps,
and the sale took place. When Shaw expressed doubt
about the dangers involved in using the stamps,
Emmons gave him extensive advice as to how to pass
them undetected, and assured him that he would not
get into trouble. Over the course of the next four
months, Emmons initiated a number of additional
sales of food stamps to Shaw. Emmons eventually told
Shaw that the stamps were stolen, but Shaw apprently
did not know this at the time of the first sale. In
APPENDIX 10
#
é
.
;
addition, none of the stamps sold to Shaw had the usual
warning about unauthorized use printed on them. In
any case, Shaw's predisposition to commit the crime
after it had been proposed and set up by the government
is irrelevant to this defense. There is no evidence that
Shaw had ever been involved in the receipt of stolen food
stamps before. It appears from the record that he would
not have had the contacts or ability to procure food
stamps without the active help and prompting of the
government. The scheme was devised by Emmons and
the vice unit for the sole purpose of leading Shaw into
committing a crime which the police could supervise
and for which they could then arrest Shaw.
The government claims that its goal was to ferret
out the distribution of stolen food stamps. But its
activities in this case do not reflect that alleged goal.
There was no evidence that Shaw was involved in the
receipt of stolen food stamps before he was approached
by Emmons. No efforts were made to trace the
disbursement of the stamps after they were sold to
Shaw. The police activity here does not appear designed
to "ferret out ongoing criminal activity," but rather to
put Shaw in the business of disbursing stolen food
stamps for the first time. See, U.S. v. Batres-Santolino,
supra, at 752. As such, the government's extensive role
in instigating and sustaining this criminal activity
brings it within the standards set out in Greene and
Twigg, and this court deems it “outrageous.”
Accordingly, Shaw's petition for a writ of habeas
corpus is granted, and his conviction is ordered
vacated.
IT IS SO ORDERED.
Dated: June 17, 1985.
(Signed)
ROBERT P. AGUILAR
United States District Judge
///
ie ae
APPENDIX 11
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D.C. 20543
December 8, 1986
Mr. Ronald R. Shaw
P.O. Box 4887
San Jose, CA 95150
Re: Ronald R. Shaw v. Robert Winter, Sheriff
A-432
Dear Mr. Shaw:
Your application for an extension of time in which
to file a petition for a writ of certiorari in the above-
entitled case has been presented to Justice O'Connor,
who on December 8, 1986, signed an order extending
your time to and including January 3, 1987.
A copy of the Justice's order is enclosed.
Very truly yours,
JOSEPH F. SPANIOL, JR., Clerk
By
Edward L. Turner, Jr.
Assistant Clerk
vjr
Enc.
cc (letter only): Blair Hoffman, Esq.
Deputy Attorney General
6000 State Building
San Francisco, CA 94102
Clerk, U.S. Court of Appeals for
the Ninth Circuit
(Your No. 85-2285)
APPENDIX 12
SUPREME COURT OF THE UNITED STATES
No.
A-432
RONALD R. SHAW,
Applicant,
Vv.
ROBERT WINTER, SHERIFF
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
UPON CONSIDERATION of the application of
applicant,
IT IS ORDERED that the time for filing a petition
for a writ of certiorari in the above-entitled case be, and
the same is hereby, extended to and including January
3, 1987.
/s/ Sandra D. O'Connor
Associate Justice of the Supreme
Court of the United States
Dated this 8th
day of December, 1986.
APPENDIX 13
ARTICLE IV, SECTION 9
CONSTITUTION OF CALIFORNIA
"STATUTE TITLES"
(p. 100)
SEC. 9. A statute shall embrace but one subject,
which shall be expressed in its title. If a statute
embraces a subject not expressed in its title, only the
part not expressed is void. A statute may not be
amended by reference to its title. A section of a statute
may not be amended unless section is re-enacted as
amended. [New section adopted November 8, 1966.]
///
a a
///
APPENDIX 14
Ale Biecoriity inet
SECTION 496
CRIMES AGAINST PROPERTY
CALIFORNIA PENAL CODE
§ 496 Receiving Stolen Property
1. Receiving; knowledge; concealment; punish-
ment. Every person who buys or receives any property
which has been stolen or which has been obtained in
any manner constituting theft or extortion, knowing
the property to be so stolen or obtained, or who conceals,
sells, withholds or aids in concealing, selling, or
withholding any such property from the owner,
knowing the property to be so stolen ...
SECTION 664
CRIMES AND PUNISHMENT
CALIFORNIA PENAL CODE
§ 664. Attempts; punishment
Every person who attempts to commit any crime,
but fails, or is prevented or intercepted in the
perpetration thereof, is punishab’», ...
///
//1/
///
APPENDIX 15
EXHIBIT A
EMMONS TESTIMONY
AT ABC HEARING
Re: Drinking, Non-Stolen Nature of Goods
PLEASE NOTE: Emmons statement at the ABC
hearing and the amount of drinks
that Emmons said he had in a 3 to 4
hours period.
[EXCERPTS OF TESTIMONY
FROM REPORTER'S TRANSCRIPT FOLLOW]
APPENDIX 16
ll lt
[RT p. 516:
PROCEEDINGS
THE COURT: We'll go back on the record for the
fourth day of hearing in the matter on the accusation
against Ronald and Geraldine Shaw doing business as
The Cozy Bourbon Club. This is file number 47778,
Registration 16982. The record will reflect that Mr.
Shaw is present and represented by Mr. Tenenbaum,
his counsel, and Mr. Tipton is representing the
Department. Mr. Tipton?
MR. TIPTON: Yes. Officer, would you stand and
be sworn, please.
JAMES L. EMMONS,
being first duly sworn by the Hearing Officer to tell the
truth the whole truth, and nothing but the truth, was
examined and testified as follows:
THE COURT: Would you state and spell your
name for the record, please.
THE WITNESS: James L. Emmons, E-m-m-o-n-s.
DIRECT EXAMINATION
BY MR. TIPTON:
Q. Mr. Emmons, what's your business or occupation?
A. I'm a police sergeant with the city of San Jose.
Q: And how long have you been employed by the city of
San Jose as a police officer?
A: Eighteen years.
APPENDIX 17
: When you left the club on those occasions, did you
ever feel that you were under the influence for
purposes of driving a motor vehicle?
: I remember on one occasion I did.
: On any occasion when you left the club were you
ever under the influence of alcohol for purposes of
section 647(f) of the Penal Code?
: Well, one time I thought at first that I was in-
toxicated, but when I woke up the next morning I
felt that I had been given something other than
alcohol. That's the one occasion I remember.
: On how many of these occasions were you with
another officer?
: 80 percent.
: When you left the club, did you usually meet with
other officers before you drove the car away?
APPENDIX 18
A: No, not usually. As I recall, most of the time we
were in separate vehicles.
Where?
bt Best Prod oM a Vi
And the food stamps you got from the United States
Government?
A: Yes, sir, I did.
fP®@e? @ P
Q: Did you learn quite a bit about food stamps during
the course of your investigation?
A: No. I wouldn't say I learned quite a bit, no.
MR. TENNENBAUM: I have an empty book of
food coupons, your Honor. I'd like to have it marked as
Respondent's first in order, please.
THE COURT: We're off the record for a moment.
(Discussion off the record).
THE COURT: We're back on the record, and I
have marked for identification as Respondent's Exhibit
A what appears to be a blank food stamp coupon
et.
(Thereupon, the afforementioned
document was marked Respondent's
Exhibit A for identification.)
APPENDIX 19
nit eaneenienniiatieamnaasill
BY MR. TENENBAUM:
Q: Showing you Respondent's A, Mr. Emmons, which
is the food stamp booklet, was that the kind of booklet
you sold to Mr. Shaw?
A: It appears to be similar, yes, sir.
Q: I notice that the denomination on that cover is $50.
You mentioned previously that the type you sold
were 55 and 65? Is there any other difference other
than that?
A: Not that I'm aware of. I'm sorry. I had the figure
that they were 55 and 65, I could have sold him -- I
did sell him $65 books I have indicated in my report.
And whether the other denomination I sold him
was 50 or 55, I'm not sure.
Q: Okay. Let's go on with the booklet that's in front of
you. Would you take a look at the back cover inside
portion. Right where the judge has put the stamp.
And would you read that aloud for the record,
please?
Shaw?
A: I don't know.
Q: Do you remember testifying in court at Mr. Shaw's
trial? Do you remember testifying at his trial?
A: Yes, sir, I do.
Q: Do you remember testifying that the books that you
sold to him did not contain that admonition?
APPENDIX 20
A: I'm sorry, sir. It's my recollection that Miss
Littleton testified to that. I didn't.
Q: You do remember hearing that testimony?
A: I remember hearing it, and believe that it's her that
said that.
A:. Yes, sir,
Q: And you don't know what the purpose was in
removing that admonition before they were sold to
Mr. Shaw, do you?
A: No, I don't.
Q: Were you present at any time when Mr. Shaw may
have said that he was going to give those food
stamps away to people?
A: Not give them away, no, sir.
Q: At no time did Mr. Shaw say that he was going to
sell these for a profit, did he?
A: No, I don't recall -- excuse me. If I could go back to
your last question.
APPENDIX 21
Let's answer this one. The answer to this one is no,
and now you want to go back to the other one?
: Yes, sir.
And the other question was at any t...e did you hear
Mr. Shaw say he was going to give these stamps
away?
: Okay, then I answered it correctly. I did not hear
him say that.
Okay. Do you remember the names of any of Mr.
Shaw's bartenders?
Yes, sir. Yes, I remember Sharon.
How about Carol? Does the name Carol ring a bell?
I think I did hear it, but I can't picture her.
Do you remember the names of any other
bartenders?
Bridgett.
, ,
se san hee, on of Spas hasiandane See aan Bridgett tI mee ro deal j
. . . . ?
Was there any reason why, when you sold
merchandise to Mr. Shaw, that the amounts were a
minimum of $200?
: No, sir.
APPENDIX 22
od dT a 1 ES lies
: It didn't have anything to do with the fact of
attempting to get Mr. Shaw on a felony as opposed to
a misdemeanor?
: No.
Q: With regard to the alcoholic beverages that were
sold to Mr. Shaw, on the phone conversation he first
asked you to bring it to his home, didn't he? Sir, if
you have an independent memory of it. Let's start
with the beginning. Do you have an independent
memory of the phone conversation which preceded
the delivery of the alcoholic beverages to The Cozy
Bourbon Club?
: I recall portions of it, and I don't recall that. That
occurred later.
: Do you remember in the phone conversation Mr.
Shaw asking you to bring the alcoholic beverages to
his home?
: Not in the phone conversation.
: Do you remember in the phone conversation you
telling Mr. Shaw that you had another person with
you?
: No, I don't recall that.
APPENDIX 23
EXHIBIT B
LITTLETON TESTIMONY
AT STATE TRIAL
Re: San Jose Police,
Warning Labels on Food Stamp Booklets
Statement of Federal Agent Ann Littleton of the
U.S.D.A.
PLEASE NOTE:
The food stamps being obtained from
her under perjury -- the police
telling her that the petitioner was a
known fence. In addition, Littleton
was interested in trafficking, not
closing down a bar.
In addition, Agent Littleton gave
Emmons $910.00 worth of Food
Stamps on April 30th. On that same
day Emmons stated he sold Shaw
$510.00 worth of food stamps. What
happened to the other $400.00? See
pages 5 and 6 of Petitioner's Brief in
the Appellate Court.
Finally, Littleton stating that
Petitioner's food stamp booklets
should have had the warning labels
on them since the warning was on
booklets prior to 1978 series.
[EXCERPTS OF TESTIMONY
FROM REPORTER'S TRANSCRIPT FOLLOW]
APPENDIX 24
[RT p. 116:]
[Examination by Mr. Dettmer]
A:
Q:
We investigate anybody that is abusing the
program, in whatever manner.
Okay. now, you came down and got in contact with
the San Jose Police Department. You got ahold of
them, they didn't get ahold of you, is that correct?
: Yes.
Q: You told them that you wanted to get food stamp
abusers, so to speak?
Okay. You were particularly interested in people
that were abusing food stamps in the area?
: Yes.
: They told you that they had soembody that they
could sell food stamps to, is that what they told you?
7 Ig i kn Ste
ce aatehinds Tail
When did they tell you that?
: I don't remember exactly when Officer Cossey
called me up to let me know. It was sometime
towards the end of April, after our first meeting.
APPENDIX 25
[RT p. 119-122]
Q: Okay. And could you look at the back of it, the back
page, the inside back page? It has some writing on
it, is that correct?
A: Yes, that's correct.
unlawful to use it?
A: Not on the back page.
Q: Does it say so on the front page anywhere?
A: On the front page it has a certification. The person
using the food stamps is responsible for filling that
out.
Q: Doesn't have any indication in there that it is
unlawful, or anything, to possess those if they
weren't issued to you, does it?
A: It doesn't say it's unlawful. However, it says that
the individual must be authorized bv the
Department of Agriculture to participate in the
program before they can use the stamps.
MR. DETTMER: Your honor, I have a food stamp
book I would like marked for identification, please.
THE COURT: Defendant's Exhibit D for
identification.
(Whereupon, the above-mentioned food stamp
book was marked Defendant's Exhibit D for
identification).
Q: (By Mr. Dettmer) Special Agent Littleton, I show
you a food stamp booklet marked Defendant's Exhbit
D for identification, and ask you if you can identify
that?
APPENDIX 26
= Ff &
. = is also a Department of Agriculture food stamp
Does it, on the inside back page of that food stamp
book, say anything about it being unlawful to
possess?
on neg aR POR Snr em biect ghee both
That booklet says that is that correct?
Do you happen to know why the Department of
Agriculture changed the writing on the books?
: No, I don't.
Q: Do you have more food stamp fraud now than you
used to have, or did you have more in, say '79 and
‘80?
I'm am not qualified to make that statement.
Q: Now, these food stamp booklets that were sold came
from the United States Government, is that correct?
: Yes, that's correct.
APPENDIX 27
Q: The United States Government, in other words,
then made a decision that through you, evidently,
thet they were going to sell these food stamps, is
that correct, or they were going to have the San Jose
Police Department sell the food stamps?
A: Yes.
Q: Nobody stole the food stamps from the United States
Government?
A: Not these particular ones, no.
Q: Nobody even cheated the United States Government
out of these food stamps?
MR. BALDWIN: Objection. That is argumentative
and calls for a conclusion of this witness.
THE COURT: Sustained.
MR. BALDWIN: Well, I will withdraw the
objection.
THE COURT: I have already ruled. Do you want
me to withdraw the ruling?
MR. BALDWIN: Yes.
THE COURT: All right, the ruling will be
withdrawn.
MR. DETTMER: Can we have the question read
back?
(The question was read by the reporter.)
THE WITNESS: I don't know what you mean by
cheat the government out of these stamps.
Q: (By Mr. Dettmer) Okay. The government made a
conscious decision to sell the stamps, is that
correct?
APPENDIX 28
: To develop a case, yes.
: Okay. When you gave these stamps to the San Jose
Police Department, did you know anything about the
background of the person that the San Jose Police
Department was going to ssell the samps to?
. They indicated | that } 6
that he had dealt in stolen property.
: Okay. Who told you that?
: I don't remember exactly. It was probably Officer
Cossey or Sergeant Emmons.
: Okay. Did this person ever tell you that he had dealt
in stolen food stamps?
: No, simply that he had indicated an interest in
purchasing stamps.
: Was your intention to use these stamps to maybe
catch somebody who had been involved in food
stamp fraud in the past, for instance? Is that what
your main interest was?
: No. My main interest was simply in the offering for
sale the stamps to see if he would --
: -- Buy them?
: If he would buy them.
Q: So you could then prosecute him for illegally buying
them, is that correct?
: If he was involved in trafficking of food stamps, we
wanted to find out. Yes, that's correct.
: If he bought them, you wanted to prosecute him for
it?
APPENDIX 29
Q: Okay. So you wanted to sell the food stamps under
the guise of prosecuting a person that bought them,
isn't that correct?
MR. BALIYWIN: Objection. That's argumentative
as phrased.
THE COURT: Sustained.
Q: (By Mr. Dettmer) Prosecution was one of the things
in your mind when you agreed to sell the stamps,
isn't that correct?
A: Yes, that’s my job.
(RT p. 127:)
Q: To the best of your recollection, what is the first
time, the first date that anyone from San Jose Police
told you, "Yes, we definitely have somebody who is
interested in buying food stamps"?
A: To the best of my recollection that was April the
30th, 1980.
Q: Let's talk for a moment about our two sets of food
stamps here. We have got Defendant's Exhibit D
which contains the admonition on the back about
illegally obtaining stamps, is that right?
A: Yes, that's correct.
Q: And we have Exhibit 12 that contains no such
admonition?
APPENDIX 30
A: Yes, that's correct.
:
Q: How can you do that?
[RT p. 133:]
Q: (By Mr. Baldwin)
verify anything one way or the other about whether
these admonitions have been printed upon the back
of food stamp coupon books?
- a — ;
= PR bach lated the fact that it ia illegal
He could not tell me the exact
years where they had the statement or did not have
the statement, and the definite answer would be
from somebody in Washington, D.C.
MR. BALDWIN: Your honor, I have no further
questions. I would ask that this chart on the board be
marked as People's next for Identification and entered
into evidence.
APPENDIX 31
THE COURT: Do you have any questions for this
witness?
MR. DETTMER: No, I have no further
questions, your honor. I have no objection to that.
THE COURT: First of all, let's take care of the
witness. You have no further questions?
MR. DETTMER: I have no further questions.
THE COURT: All right, you may step down. You
may be excused if there are no objections.
(Witness excused)
THE CLERK: The crert will be marked People's
Exhibit 14 and admitted into evidence.
APPENDIX 32
EXHIBIT C
EMMONS TESTIMONY
AT STATE TRIAL
Re: Advice to Petitioner,
Selling Solely to Petitioner
PLEASE NOTE: Police Officer Emmons assuring the
Petitioner and giving the petitioner
more than a little bit of additional
advice. Moreover, Police Officer
Emmons offering the Food Stamps to
others and not selling the stamps to
others who were willing to buy.
[EXCERPTS OF TESTIMONY
FROM REPORTER'S TRANSCRIPT FOLLOW)
APPENDIX 33
: So basically, the United States Government was
authorizing you to sell these food stamps, in your
mind?
: Yes, sir, that's true.
: And you sold them for approximately what, 40% of
the face value?
: Yes, sir, that's correct. ‘
: Do you, of your own personal knowledge, happen to
know what food stamps are generally sold for to
people that are authorized to buy food stamps?
: No, sir, I don't.
Q: Now, you sold these food stamps to Mr. Shaw with
To" ow Mr. Shaw for this?
: Eventually, yes, sir,
: Eventually? As a matter of fact, you did this quite a
few times, didn't you?
: Yes, sir, I did.
APPENDIX 34
& = @ ® €
: Yes, sir, that's true.
idn't vet oy iidn't you?
You mean, that was my purposes? No, that wasn't
my purpose.
No, but you did tell him that?
Ltold him that.
You told him that?
Yes.
Q: Now, you spent a lot of time in Mr. Shaw's bar,
didn't you?
: Yes, at first.
APPENDIX 35
A:
, & @
How many hours do you think you spent in that
place?
Oh, I don't know. I would have to guess. Over a
hundred.
Over a hundred hours?
Yes.
Hanging out in there, drinking and stuff like that?
Yes, sir.
y ‘id fically.; chic
manner and way, assure Mr. Shaw that he couldn't
ey my ic; tht food
stamps?
Yes, sir.
MR. DETTMER: May I have just a moment, your
honor? I have a couple of things to look up here, and
then I will be done.
Q: (By Mr. Dettmer) Officer Dubray was down there
with you for a while, wasn't he?
A: Yes, sir, he was.
Q: When was that?
A: That was up until about February or March, I
believe. He quit the Department.
Q: And Officer Dubray is not a Police Officer any more?
A: No, sir, he is not.
APPENDIX 36
Q: Did you know a bartender down at The Cozy
Bourbon named Bridget?
A: Yes, sir.
Q: To your knowledge, do you happen to know if Officer
Dubray had some sort of a relationship with
Bridget?
MR. BALDWIN: Your honor, may we approach
the bench again?
THE COURT: Yes.
(Whereupon, counsel approached the bench
where a discussion was had out of the hearing of the
jury and was not reported.)
MR. DETTMER: I will withdraw the question,
your honor.
A: No, that is not exactly correct, There's a lady named
Georgia that tried to put together a dea! with several
people for some, which she could never get together.
And a girl named Lisa wanted some, but she
wanted them at a cheaper price.
Q: You also offered them to a guy named Papa Carl
who runs the Winchester Lounge?
A: No, I didn't. I couldn't --
APPENDIX 37
Do you have firsthand knowledge that they were
offered to him?
: I don't know if he was offered food stamps or not,
no, I don't.
Have you ever reviewed a tape recording where he
was offered food stamps?
: No, not that I recall.
Q: So in your direct examination this morning then,
Oo - © P
when you say that nobody else wanted them but Mr.
Shaw, you were incorrect?
: Other people actually wanted them. J never sold
them to anybody else,
. It of the sti ' fied
ee | id ti :
: Yes, sir, I would say that's pretty close.
This was the only one?
That Id be t] I ery
Now, over this 14-month period of time that you
were involved in the sting operation, you have
compiled numerous police reports, correct?
Yes, sir.
APPENDIX 38
You testified as a witness in trials over sixty times,
correct?
: Yes, sir.
: And you dealt with hundreds and hundreds of
people through this period of time, correct?
: Yes, sir.
That is why you -- strike that.
And the reason why, during your direct
examination you referred to your report, for
instance, you do that because you have a difficult
time now remembering the facts without referring
to your report?
: Yes, sir.
Q: As a matter of fact, you had to refer to your report
numerous occasions during your. direct
examination?
: Yes, sir, I did.
Q: And it’s hard for you to remember the facts of this
Q:
A:
case without referring to your report?
: Certain specifics, yes, sir.
} ld ] bi li li 9
That' itil nani
MR. BALDWIN: May we approach the bench,
your honor?
THE COURT: Yes.
APPENDIX 39
(Whereupon, counsel approached the bench
where a discussion was had out of the hearing of the
jury and was not reported.)
Q:
4
oS? - £.e | Ff & fF
(By Mr. Dettmer) I just have a couple of other
questions, Sergeant Emmons, and then I will be
finished.
When you were down there at The Cozy Bourbon,
hanging out for your hundred hours, you met
people that worked there?
Yes, sir, I did.
Bartenders?
Yes, sir.
And you would recognize them if you saw them?
Yes, sir, 1 would.
You had conversations with them?
Yes, sir.
Okay. Spent a lot of time with them?
Yes, sir, we did.
You were quite visible in the bar, and you were a big
tipper, if I remember you saying?
Yes, sir, I was.
Q: Now, you never told Mr. Shaw at anytime that you
were in need of money or anything like this, isn't
that correct, to get him to buy stuff from you?
: Not to get him to buy stuff. ...
APPENDIX 40
[RT p. 159:]
A:
Q:
A:
Q:
I didn't , 1 stol
You said something to the extent that you got it off of
a shipment and kept it out especially for him?
Yes, sir.
Okay. Now, somebody saying that, does that convey
stolen, to you?
: Yes, sir, it does.
If somebody, you know, wanted to sell something
that was expensive for a lot cheapter, you know, and
said, "Oh, yes, I got one of these off of a shipment,
and I got this one out especially for you,” that, in
your mind, means that that has got to be stolen?
: Yes, sir, it’s a pretty good indication.
: You never told Mr. Shaw what you did for a living,
did you?
I think I told him once that I bought and sold
things, in general terms, but that was about it.
You bought and sold things, in general terms?
but other than that, no.
7 . fiauid 9
: Yes.
You told him that before you sold him the micro-
wave oven?
: I just don't recall whether it was before or after.
APPENDIX 41
Q: Okay. Somewhere around that time that was the
general idea and general impression you conveyed
to him, isn't that correct?
A:
I believe so, yes, sir.
[RT p. 157:]
Q:
Now, you testified on direct examination that you
participated in a conversation with some vice cops,
between the time you sold Mr. Shaw this microwave
oven in April, when you started selling him the food
stamps, is that correct?
: No, sir, it was -- it was one sergeant from the vice
unit, and it was prior to the sale of the microwave
oven.
Prior to the sale of the microwave oven?
: Fen.
; ag oy meee gpm
: Vice or Intelligence. I don't know how their pay
schedule is. Vice is under Intelligence.
: Okay, But half of the money came from Burglary
Suppression, your unit, and half of the money came
from Vi ce?
A: Yes, sir.
Q: And you say you went down there, started to go
down there at the request of a friend, in December?
: He didn't request me to, no, sir.
Q: Help somebody out?
APPENDIX 42
I'm sorry, are you talking about why I went to The
Bourbon?
Q: The police didn't send you down there?
A: They didn't send me there specifically, no.
Q: Now, this microwave oven that you sold Mr. Shaw,
was this kind of a spur-of-the-moment decision of
yours?
A: No, sir, it wasn't.
[RT p. 170:]
Q: That was basically the end result of the whole thing,
wasn't it?
A: We had a warrant for another party out there, too.
Q: Now, you got to see the people that go into The Cozy
Oo »-
Oo > © & © P&P
Bourbon when you were there, didn't you?
Yes, sir, I did.
They were predominantly black?
Yes, sir, they were.
Street people?
Yes, sir.
I think the way you put it, it’s kind of a place where
street people congregate?
Yes, sir.
And I guess this would include savory types and
unsavory types, isn't that correct?
APPENDIX 43
: Yes, sir, I think it would.
Were there a lot of other police officers down there
in the area when you were at The Cozy Bourbon?
In the area, yes, sir. They have walking patrol, too.
Q: Did they ever come through there when you were in
there?
: Yes, sir, they did.
Q: Now, between January and April, when you made
> ©? ©
your first food stamp sale, did you go in The Cozy
Bourbon a lot then?
Yes, sir, I believe I did.
And you had conversations with Mr. Shaw?
Yes, sir, I did.
None of which are recorded?
: No. sir, '
APPENDIX 44
EXHIBIT D
EMMONS TESTIMONY
AT STATE TRIAL
Re: Value of Alcoholic Beverages
PLEASE NOTE: The San Jose Police committing
perjury in an affidavit to obtain a
search warrant. The sting operation
was set up to buy stolen goods, not to
sell non-stolen goods. The affidavit
wrongly states that the alcoholic
beverages constituted a felony. The
value was $120.00
[EXCERPTS OF TESTIMONY
FROM REPORTER'S TRANSCRIPT FOLLOW]
APPENDIX 45
[RT p. 13:]
What was the property?
It was food stamps.
What is the face value of them?
May I refer to my police report? $5,185.00.
What was the negotiated price?
$2,000.00.
Did you tell him that the property was stolen?
er @ 2 @ te 220
Yes, I told him they were off the loading dock and
that they would not be missed for six months.
©
On the 2nd of July, did that sale take place in Santa
Clara County?
A: Yes, it did.
Q: Referring now to the 25th of September of 1980 Did
you sell any property to Mr. Shaw on that day?
Yes, I did.
What type of property?
It was beer and liquor
Approximately what quantity?
2 @ 2.0 Fe
APPENDIX 46
: Did you tell him this property was stolen?
: Yes, I indicated that by the price I told him I paid
for the beer and the whiskey.
: What was the negotiated price to Mr. Shaw?
: $73.00.
APPENDIX 47
[AFFIDAVIT FOR SEARCH WARRANT]
emphasis added
YOUR AFFIANT, SERGEANT JIM CORNELIUS,
is a police officer with the City of San Jose, and has
been so employed for approximately twenty years. Your
Affiant is presently assigned to the Burglary
Suppression Unit. In that capacity the Unit is presently
operating a (sting) operation, which sells property
represented to be stolen to willing purchasers. Sergeant
James Emmons is also assigned to the Suppression
Unit and is presently the main officer connected with
the sting operation previously mentioned.
On September 25, 1980, Sergeant Emmons spoke
with your Affiant concerning the sale of property
represented to be stolen to one RONALD R. SHAW, at
the address previously described in this Affidavit. Your
Affiant believes the information given by Sergeant
Emmons to be true and accurate.
Sergeant Emmons advised that he has been selling
property to Mr. Shaw which he, Sergeant Emmons, has
In reality it was
property from the Police Property Room and federal
food stamps furnished by the U.S. Department of
Agriculture.
Sergeant Emmons advised that on September 25,
1980, he agreed to sell alcoholic beverages to Mr. Shaw.
That he, Sergeant Emmons,
That Mr. Shaw
agreeau to purchase the alcoholic beverages and that
Sergeant Emmons did in fact, deliver the alcoholic
beverages to the aforementioned address and turn them
over to the custody and care of RONALD S. SHAW. That
Mr. Shaw paid $75.00 for all of the alcoholic beverages
previously described in this affidavit.
Sergeant Emmons advised that the alcoholic
beverages were unloaded from his vehicle into a storage
area located inside the west end of the Bourbon Club.
That this delivery took place on September 25, 1980, at
approximately 2:25 in the afternoon. Your Affiant
believes that the aforementioned property will be found
APPENDIX 48
on the premises of the Bourbon Club at the above
address, and this property constitutes evidence of the
ee f a fel pete weer .
STOLEN PROPERTY).
That based upon the above facts, your affiant prays
that a Search Warrant be issued with respect to the
above location for the seizure of said property, and that
the same be held under California Penal Code Section
1536 and disposed of according to law.
(ATTEMPTED RECEIVING
SERGEANT JIM CORNELIUS
Subscribed and sworn to before me
on this 26th day of September, 1980.
JUDGE OF THE MUNICIPAL COURT
FRED S. LUCERO
TRM:tr
WARRANT #
RECEIVED BY (Signed Sgt. Jim Cornelius)
ON (4-26-80)
APPENDIX 49
MUNICIPAL COURT OF CALIFORNIA
SANTA CLARA COUNTY JUDICIAL DISTRICT
SAN JOSE FACILITY
STATE OF ) AFFIDAVIT
CALIFORNIA ) IN SUPPORT OF
) ss SUPPORT OF
COUNTY OF ) SEARCH
SANTA CLARA ) WARRANT
Personally appeared before me this _26th day of
September, 19.80,
who, on oath, makes complaint, and deposes and says
that there is just, probable and reasonable cause to
believe, and that he does believe, that there is now in the
possession of _RONALD R. SHAW __ , on the premises
located at___The Bourbon Club, 40] S. 1st St.. San Jose,
California , which premises consist of: a single story
wooden structure on the wouthwest corner of _ First
;
Street and San Salvador Street in San Jose, with the Rocaieein Pid the fi 7
Personal property described as follows:
1. Three cases of Olympia 11-ounce bottles of beer;
. One case of Michelob 12-ounce bottles of beer;
. One case of Coors 12-ounce bottles of beer;
. Three cases of Schlitz 16-ounce cans of beer;
a -+ wo N
. One case of Seagrams-7, 80 proof liquor amounting
to 12 9-liter bottles;
Items 1 through 5 are identified by an infrared
marking pencil (JLE) located on the case.
APPENDIX 50
EXHIBIT E
Petitioner's Petition that was filed
in the Ninth Circuit Court.
[FOLLOWS IN FULL]
APPENDIX 51
INTRODUCTION
Appellee's Prelimi Stat
I. The Court's opinion conflicts with another
decision of this court that was handed down on
April 28, 1986, No. 84-1895.
II. The points to be raised are:
1. The conflicting opinions handed down within a
four month period.
2. The facts and laws overlooked:
A.
B.
Involving the Twigg case.
The motive behind selling the appellee non-
stolen food stamps.
The attempt to receive stolen goods, when the
goods are given by the owner, is contrary to
Penal Code 496.
The case law, attempt to receive, is used in a
discriminatory fashion and is designed to
take away the gains that non-whites gained
under the Civil Rights Act of 1964 which
should be condemned by this court.
E. Title 42, Section 1983.
F. Title 18, Section 242.
G.
H
Civil Rights Act of 1964.
. Additional information that the court should
have been aware existed.
The following information is only an attempt to
bring out the facts to the court. It is not intended to
cause embarrassment to any party, or discredit the
APPENDIX 52
court's opinion, and is not intended to be used by the
appellee in a threatening manner. This petition is an
attempt to aid the court to enforce the U.S. Constitution.
APPENDIX 53
RONALD R. SHAW
P.O. BOX 4887
SAN JOSE, CALIFORNIA 95150
Plaintiff in Pro-Per
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Ronald R. Shaw, )
Appellee, ) No. 85-2285
)
v. ) Petition for
) Rehearing on the
Sheriff Robert Winter, ) Facts or Law
Respondent )
STATEMENT OF THE CASE
1. On April 25, 1977, the appellee, Ronald R. Shaw,
purchased a liquor bar located at 401 South First Street,
San Jose, California. The clientele changed from all
white to sixty percent black by teh year of 1979. There
was no problem with the San Jose Police up to that
year.
2. In the year of 1979, the City of San Jose had pro-
posed plans for ground breaking for redevelopment of
the downtown San Jose area in which plaintiffs bar
was located. The ground breaking commenced in the
year of 1980.
3. In September of 1979, a San Jose police sergeant
who had been born and raised in the State of
Oklahoma”. was assigned to the plaintiffs bar to
observe what could be done to cause the California
*NOTE: The San Jose Police Officer's birth is only to
infer that it is more likely that a Southerner would be
more likely to dislike blacks than one born in the north,
but not absolutely true.
APPENDIX 54
Alcholic Beverage Control to revoke the bar's license so
that black citizens would leave San Jose.
4.In December of 1979, the undercover officer,
Sergeant James Emmons, approached the appellee and
told the appellee, Shaw, that he dealt in discontinued
merchandise and bought and sold items. Said officer
left his name and telephone number for Shaw to call if
anyone came into the bar with items for sale. In
addition, Shaw was given the clothing size of said
undercover officer because the officer stated that he was
in need of clothes.
5. Within 24 hours an unidentified man walks in
Shaw's bar and, without approaching any of the
customers, approaches Shaw and informs Shaw that
he has some suits and leather jackets for sale at a
cheap price and would like to know if Shaw knows of
anyone that would fit into size 44 clothes.
6. Shaw called Emmons, by phone, and told him
that a guy had some suits for sale that would fit him
and would have the guy call him. Emmons allegedly
bought the clothing.
7. Shaw discovered through carefully reading the
transcripts of his trial that the suits were taken back to
the store before the trial and the unidentified person
who allegedly sold the suits to Emmons was not
arrested or ever identified.
8. The mere fact that the allegedly stolen suits were
taken back to the store before trial and the person was
not arrested or identified infers that there was a
conspiracy to cause Shaw to commit a crime so that
Shaw would lose his liquor license.
9. The above setup infers that the suits were on
loan and the unidentified person was actually working
uncercover with Emmons. Shaw was supposed to buy
the suits from the unidentified person and sell the suits
to Emmons for a profit which would give credence that
Shaw was a dealer in stolen goods.
10. After the suit scheme failed, Emmons obtained
some food stamps from the Unitd States Department of
Agriculture.
11. In April of 1980, Emmons offered to sell Shaw
food stamps informing Shaw that he could not get into
any trouble by buying the food stamps and on several
APPENDIX 55
asl
occasions told Shaw that they were discontinued, not
stolen. Shaw bought the stamps on several occasions.
12. Before the food stamps were offered or sold to
Shaw, the penalty for unlawful possession and use was
removed from the booklets so that Shaw would not
question the stamps and Shaw could easily traffic the
stamps to a store for money.
13. Emmons advised Shaw that he could obtain
cash if Shaw knew of anyone that managed a food store.
Emmons was attempting to cause Shaw to start
trafficking food stamps.
14. Shaw did not attempt to traffic the stamps but
gave some to the needy and his friends. In addition,
Shaw used some himself but stopped after being
embarrassed using the stamps in public.
15. Shaw's actions were contrary to the wishes of
the conspirators who wanted the bar closed.
16. The remaining food stamps were stolen from
Shaw by a trusted barmaid that Shaw had allowed to
come into his office when he was not present. Shaw
was eventually arrested for attempting to receive stolen
goods as a result of buying the non-stolen food stamps.
Shaw was convicted, by jury, of the above charges.
17. The California Alcoholic Beverage Control
revoked Shaw's bar license after Shaw was convicted.
18. On March 25, 1984, Shaw caused a San Jose
Mercury News article to appear on the front page
detailing the "outrageous" and unconstitutional
conduct of the San Jose Police Department.
19. The article served its purpose by informing the
public of the “outrageous” conduct of the said police
department. The article caused Shaw to become
unpopular which Shaw was aware would happen.
20. On April 5, 1984, 10 days after the article, the
conspirators caused Shaw to be arrested in Mountain
View, California.
21. The Mountain View Police circumvented
requesting the probation department to inform the said
police department if the appellee was actually on
probation, appellee's probation had been revoked and
appellee, Shaw, had put up a $25,000.000 bond in lieu of
probation. The Mountain View Police took the advice of
the district attorney's department, and raided a
APPENDIX 56
personal friend's of the appellee, apartment, believing
that the appellee lived with the friend. A handgun was
found in the apartment.
22. The friend had stated to a girl that she had a
gun in her apartment and that is why she was not
afraid to live alone. The gun information was relayed to
the police and the appellee was set up once more.
23.The appellee, Shaw, was arrested for
constructive possession of a handgun, even though the
Mountain View Police had taken the appellee's keys
and none of the keys would open the door to the friend's
apartment. Appellee posted bail and was released.
24. When the appellee appeared in court for the
$25,000.00 bond in lieu of probation, appellee was
committed to the County Jail and served eight months.
25. While in custody, appellee, Shaw was given
public defender, Edward Davila, without requesting a
public defender, which caused appellee to become
suspicious.
26. While in custody it became apparent to Shaw
that certain parties have a buddy system that
circumvents the United States Constitution due process
clause. In other words, injustice is only a phone call
27. At Shaw's preliminary hearing, a witness
testified that the California Alcoholic Beverage Control
Agents had sent her to a buddy in the Mountain View
Police Department to cause tfeh raid on the friend's
apartment.
28. Please note the following in detail. As a result
of the gun arrest, Shaw was given a one-day trial so
unfair that it makes a mockery out of the United States
Constitution. A conspiracy had been formed to send the
appellee to prison promptly.
29. The conspirators were aware of action of civil
suit filed against the City of San Jose and the State
Alcoholic Beverage Control in Federal District Court.
30. As a result of attempting to cover up the
constitutional conduct of the conspirators, another
deceitful scheme was implemented.
31. While in custody, the appellee attempted to hire
numerous attorneys. The attorneys, after conferring
APPENDIX 57
with the said conspirators, refused to defend the
appellee.
32. An inmate recommended an attorney who the
inmate stated was not a party to the buddy system.
Appellee contacted the attorney, Mark Schroeder, and
was interviewed by Schroeder.
33. Schroeder appeared in the California Superior
Court in Santa Clara County and informed the Court
that he would be representing the appellee when he
receives the money.
34. After Schroeder informed the court of his
intention to defend the appellee in all matters when he
receives the money, Schroeder was promptly arrested
by the police.
35. After Schroeder was arrested, the local
attorneys were too afraid to speak with the plaintiff. It
was suggested by an attorney that the appellee had
known for several years to hire an attorney out of Santa
Clara County. The attorney suggested Attorney Frank
Roach, of Union City, California.
36. The appellee contacted Frank Roach and had
the case material sent to him. Attorney Frank Roach
received the material and promptly sent the material
back to the appellee with the words "pot interested”
written on the face of the material.
37. It became very obvious that a conspiracy was in
force to send Shaw to prison so that he could not pursue
his actions in federal court.
38. The appellee, Shaw, was forced to keep the
deputy public defender, Edward Davila, and was given
a one day "Kangaroo Trial” that the authorities in
South Africa would be proud to parade around to show
that they are no different than Americans.
39. The deputy public defender, Edward Davila,
conspired with the prosecuting deputy district attorney,
Susan Beglau, to obtain a conviction and promptly send
the appellee to prison.
40. The said public defender sent an investigator to
the appellee's friend, in conection with the gun charge.
The investigator took a written statement. The state-
ment stated that the gun was loaned to her and that the
plaintiff did not live with her, and in addition, sent a
APPENDIX 58
sworn statement to the district attorney stating the
same.
41.The prosecuting district attorney, Susan
Beglau, did not ever send an investigator to the
plaintiffs friend.
42. In conspiracy with the public defender, Edward
Davila, the prosecuting deputy district attorney, Susan
Baglau, relinquished the case and became a perjuring
witness to ensure that Shaw would be convicted and
sent to prison.
43. At the one-day trial, Susan Baglau took the
friend had told her over the telephone that the gun
bel 1 to SI 1 that Shaw lived with }
44. Deputy public defender, Edward Davila, did not
object to the deputy district attorney taking the stand
and testifying to the jury. In addition, the sworn
statement and the investigator's report were not ever
referred to or submitted as exhibits to the jury.
45. The jury deliberated for approximately one
hour and found Shaw guilty. At time of sentencing, the
appellee, Shaw, was given a two years prison sentence
and was ordered to prison within 48 hours.
46. When Shaw was being taken back to his jail
cell, the deputy district attorney, Laura Schillings, who
had taken the case so that Susan Baglau could testify
against Shaw, stood outside the courtroom with her
arms crossed and laughed at Shaw.
47. The foregoing convinced the appellee that he
was not disliked, but hated for exercising his
constitutional rights in federal court. Shaw posted bail
before the 48 hours and Shaw was due to be released on
the food stamp convictions.
48. While in custody, all attorneys refused to defend
Shaw. Shaw filed a writ of habeas corpus contesting the
food stamp conviction. The writ was granted by the
United States District Court on “outrageous” grounds
and all food stamp convictions were vacated.
49. After being released, Shaw filed a writ of
habeas corpus on the gun conviction up to the
California Supreme Court exposing the uncon-
stitutional conduct of the conspirators.
APPENDIX 59
50. The writ listed the following “outrageous”
grounds in court of law: 1) ineffective assistance of
counsel, 2) trial judge violated California Penal Code
1025 - submitting the prior food stamps convictions to
the jury, 3) deputy district attorney was in violation of
Penal Code 181 prejudicial misconduct in front of a
jury, 4) appellee's friend's apartment was illegally
searched, 5) Shaw's probation had been revoked (illegal
search), 6) Mountain View Police Officer and deputy
district attorney committed perjury under oath in front
of the jury, 7) evidence did not support that a crime of
constructive possession of a handgun was committed,
8) Shaw was denied time to obtain competent counsel
after substitute attorney had been arrested, 9) mis-
stating Penal Code 12021 to the jury -- using the word
“and' when Penal Code 12021 reads “or”, 10) agents of
the California ABC instigated the arrest by sending a
witness to a buddy in the Mountain View Police
Department, 11) Shaw was denied a complete trial
transcript for an appeal, 12) outrageous conduct of the
public defender and deputy district attorney, 13) prior
food stamp conviction has been vacated. The foregoing
shows the ongoing violation of the appellee's civil rights
by the state.
The appellee is calling the court's attention to the
fact that the case law, attempt to receive stolen goods, is
contrary to California Penal Code 496 in that Penal
Code 496 does not define non-stolen goods. In addition,
the cases that the court used in its opinion (Rojas), and
the other cases, shows informants and the defendant's
acting on their own initiative. Shaw did not act on his
own initiative and the attempt to use an informant on
Shaw failed. The above material facts were overlooked
by this court.
MATERIAL FACTS AND LAWS OVERLOOKED
1. The court has overlooked the laws that protect
the black citizens from the deceitful and unconstitu-
tional conduct of the police.
APPENDIX 60
2. The appellee is calling the Court's attention to
Title 18, Section 242 which makes it criminal for the
state under color of law to deprive a citizen of his civil
rights. In addition, Title VII of the Civil Rights Act of
1964, and Title 42, Section 1983 forbids the state to
unlawfully act under the color of law and violate the
constitutional rights of the appellee.
3. The facts show that the appellee was targeted for
the sole purpose to cause his bar to close so that the
black citizens would leave the area. The San Jose Police
engaged in deliberate, vexatious conspiratora] conduct,
under color of law, with the intended purpose to violate
the civil rights of the appellee because he is black and
his customers were sixty percent black. The food stamp
scheme was not attempted on the white bar and owner
located 80 feet from the appellee's bar.
4. The sole purpose of targeting the appellee was to
close the bar and drive the black citizens out of the San
Jose downtown area.
5. The appellee is calling the Court's attention that
the San Jose Police acted in bad faith and violated the
civil rights of the appellee and a large number of black
citizens that patronized the appellee's bar. The conduct
of the San Jose Police was done under color of law in
violation of Title 42, Section 1983, Title 18, Section 242
and the 14th Amendment equal protection clause of the
United States Constitution.
6. The food stamp scheme was done under color of
law in a discriminatory fashion in that: a) acting under
color of law and deceitfully removed the warning labels
from the food stamp booklets for the sole purpose to
cause the appellee to commit a crime and lose his
liquor license, b) acting in a discriminatory fashion the
San Jose Police refused to sell the stamps to non-blacks
even though the non-blacks requested some of the
stamps, c) the San Jose Police did not attempt to try and
sell any white bar owner food stamps.
7.The above unconstitutional conduct of the
appellants’ shows that the treatment of Shaw was
arbitrary, unreasonable, and was intentional and
deliberate discrimination against Shaw on account of
racial reasons.
APPENDIX 61
2
8. The appellants violated the appellee's civil rights
under the 14th Amendment of the United States
Constitution in that the San Jose Police are enforcing a
law, attempted to receive stolen goods which said law is
designed and is only enforced against non-whites, in a
fashion that abridges the privileges of black citizens
and other minorities and violates the Equal Protection
Clause.
9. The facts clearly show that there was no reason
for the San Jose Police to target the appellee except to
cause his bar to close.
10. The appellee has inferred throughout this
matter that his civil rights have been violated by the
unconstitutional conduct of the San Jose Police.
11. The appellee has attempted to not have this
matter become a racial matter because we are all
Americans.
12. The appellants conduct and this court's opinion
condoning the “outrageous” conduct of the San Jose
Police on the appellee and the black citizens leaves the
appellee no choice except to seek support from the civil
rights organizations and the offices of Congressman
Ron Deleums, Don Edwards and Ted Kennedy among
others. The appellee will be appealing this matter to the
United States Supreme Court.
13. The United States Supreme Court stated under
Section 706(9) a district court has broad discretion to
award “appropriate” equitable relief to remedy
unlawful discrimination to further the government
compelling interest to combat the effects of past
discrimination.
14. The above reflects the goals the high Court and
Congress to protect the civil rights of victims of
discrimination.
15. This Court's opinion is contrary to the Supreme
Court's intentions to protect black citizens from
"outrageous" discrimination and unconstitutional
conduct under color of law by the states.
16. This Court's opinion condones the conduct and
restricts the power of the district court to combat
“outrageous” conduct that non-whites have to endure.
APPENDIX 62
17. The facts, evidence and motives clearly show
that the San Jose Police engaged in terrible conduct in
this matter.
18. The district court had correctly applied the law
under Greene and Twigg. The facts that this Court
against the law to buy food stamps because the penalty
had been removed and Shaw was told each time in
person when he bought the stamps that they were not
stolen but discontinued which was not recorded or the
recording destroyed.
19. The Court stated on page 4 in the opinion that
the police involvement in Shaw's case was not as long
or deep as it was in the Twigg and Greene cases..
20. The Court is incorrect on the Twigg case. The
Twigg matter lasted only a few months and Twigg was
arrested within 90 days. Shaw's case began in
September 1979 and was not arrested until September
1980.
21. The Court overlooked a very important fact. The
Court stated on page 1 that Shaw introduced Emmons
to someone who sold Emmons some suits. The facts
show that Shaw gave Emmons' telephone number to
the person who allegedly had some suits. The facts
show that the suits may have never existed and if they
did the facts show that the suits were on loan from a
store. The suits were not shown to the jury or anyone.
22. The Court stated that Emmons hinted to Shaw
on how to pass the stamps. Emmons stated under oath
that he lied and assured Shaw on many occasions to get
Shaw to buy stamps. (see Exhibit A). He did more than
hint.
ee
///
///
APPENDIX 63
PROOF OF SERVICE BY MAIL
The undersigned declares and says: That I am a
citizen of the United States and a resident of the County
of Santa Clara; I am over the age of 18 years, my
mailing address is P.O. Box 4887, San Jose, California
95150.
On February 16, 1987, I served the within:
Petition for writ of certiorari
On the interested parties in said action, by placing
a true copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid, in the United States Post
Office Mail box at San Jose, California addressed as
follows:
Attorney Blair Hoffman
6000 State Building
San Jews, California
FRY ¢ O
United States Court of Appeals
For the Ninth Circuit
United States District Court
For The Northern District
of California
I declare under penalty of perjury that the
foregoing is true and correct.
Executed at San Jose, California, on February 16,
1987.
a DR. eae
APPENDIX 64
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.