Petition for Writ of Certiorari — Konstantinov v. United States

- -_ ~- : i ' nt * i ager a wewe

86-290 jj Freed

i AUG 28 1986

1 | JosePH F sPaNioc. R.

No. CLERK

“ane a al

Jn the

Supreme Court of the Anited States

Octoser TERM, 1985

NIKOLA KONSTANTINOY,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT (85-2660)

Juuius Luctus EcHELEs

KATHLEEN KELLER

35 East Wacker Drive

Chicago, Illinois 60601

(312) 782-0711

Attorneys for Petitioner

The Scheffer Press, Inc—(312) 263-6850

i

QUESTIONS PRESENTED

1. Whether the Seventh Circuit’s holding—that the de-

fense of entrapment is precluded by defendant’s predis-

position, not to commit the drug crime at issue,’ but to

commit a financial crime* with which he was not charged--

conflicts with decisions from other Circuits,’ and with

controlling precedent of this Court,‘ respecting the “lack

of predisposition” element of entrapment.

1 Defendant was convicted of delivery of .14 (fourteen

hundredths) of a gram of heroin to Drug Enforcement

Administration [hereafter DEA] Agent Perez.

Defendant, age 42, had no prior narcotics record. He

testified—without rebuttal or contradiction—that he never

bought, sold, used or possessed narcotics in his life, other

than the .14 of a gram in this ease. (Tr. 85-86) Apent

Perez testified the DEA had no narcotic file on defen-

dant. (Tr. 34-35)

Here and hereafter: “R.” refers to the Record on Ap-

peal in No. 85-2260, and “Tr.” to the Transcript of Pro-

ceedings at Trial in No. 84 CR 235, which is a part of

said Record.

* Per defendant’s uncontradicted testimony, if Perez had

given him money supposedly for the purchase of drugs

or for supposed “laundering,” defendant intended to ab-

scond with the money and not deliver any heroin. (Tr. 84;

see Tr. 64-65, 119, 122.) In other words, defendant was

predisposed to “take the money and run.”

* See, e.g., United States v. Lard, 734 F.2d 1290 (8 Cir.

1984); United States v. Dion, 762 F.2d 674 (8 Cir. 1985);

Umted States v. Nations, 764 F.2d 1973 (5 Cir. 1985);

United States v. McLernon, 746 F.2d 1098 (6 Cir. 1984);

United States v. Borum, 584 F.2d 424 (D.C. Cir. 1978).

* Sherman v. United States, 356 U.S. 369 (1958), and

Sorrells v. United States, 287 U.S. 435 (1932), both re-

affirmed in United States v. Russell, 411 U.S. 423 (1973).

ii

2. Whether certiorari should be allowed so that this

Court may clarify that the “predisposition” aspect of en-

trapment extends only to defendant’s mental state with

respect to the particular crime charged.

3. Whether, per proper “predisposition” criteria, the

evidence at bar established entrapment as a matter of

law, regardless of any issues of witness credibility.

PARTIES INVOLVED [per Rule 21.1(b)]

Petitioner, Nikola Konstantinev, was the defendant in

the District Court for the Northern District of Illinois,

Eastern Division (84 CR 235), and appellant in the Court

of Appeals for the Seventh Circuit (85-2260). Respondent,

United States of America, was plaintiff in the District

Court, and appellee in the Court of Appeals.

ill

TABLE OF CONTENTS

PAGE

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as hanelensssciduinsecsaverves il

Judgment and Order Below .0..........ccsccssccsssssssssssssseseees 1

Jurisdictional Statement ............c.cccccccscssssssessseees keseons 2

Constitutional Provision and Statute Involved .......... 2

co. cc cusnnssenedensanesvsesensensdedvsuanes 3

RE SOA EA A 3

RR OO) 3

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Reasons for Granting the Writ:

The decision below—that the defense of entrapment

was precluded by defendant’s predisposition, not to

commit the drug crime at issue, but to commit a finan-

cial crime with which he was not charged—conflicts

with decisions from other Cireuits, and with con-

trolling precedent of this Court, respecting the “lack

of predisposition” element of entrapment.

Certiorari should be allowed so that this Court may

clarify that the “predisposition” aspect of entrapment

extends only to defendant’s mental state with respect

to the particular crime charged.

Applying the proper “predisposition” criteria, the

evidence at bar—even according to the government’s

evidence—established entrapment as a matter of

a cc necsanvoscusnsavednsonebsnsesseses 8-16

a svsunnabbnsbepvevatoosvanneenes 17

Appendices :

A. Order [unpublished per Cirenit Rule 35] of the

Court of Appeals for the Seventh Circuit, dated June

cigs oi snsssdsdubenasielbancandineseseasos la

B. Order denying Petition for Rehearing, dated

ES ISS a lla

iv

TABLE OF AUTHORITIES

Cases

PAGE

Casey v. United States, 276 U.S. 413, 72 L.Ed. 632

I 2 csetvcscanancasciernevescxsneste cave reebatieeneuntnenwsanehananceeneesinne 16

Sherman v. United States, 356 U.S. 369, 2 L.Eq.2d

BO STR cktcteiianvtitiibusenniionswmen i,8,11,14

Sorrells v. United States, 287 U.S. 485, 77 L.Ed. 413

(TERRY: - - winsivhassinsibteernnrvcnsiiaticninsionnnamnabeinagpmaivuteat 1,8,11,13

United States v. Borum, 584 F.2d 424 (D.C. Cir.

TOTS) besensnissenpsnsereisarvissomnatcanselinlissnminsinaiaaipmcndarnass 1,12

United States v. Dion, 762 F.2d 674 (8 Cir. 1985) .... 1,12,18

United States v. Gunter, 741 F.2d 151 (7 Cir. 1984) .... 16

United States v. Kaminski, 703 F.2d 1004 (7 Cir.

TOD viciétdidsimnisarmormonccrencenneasmnnsaicaaaniatnanatins 16

United States v. Lard, 734 F.2d 1290 (8 Cir. 1984)

sesaamsmabcs wets Abebiin lathes esoaaoeshdelolalee badibaahanemnans neds i,11,12,14

United States vy. McLernon, 746 F.2d 1098 (6 Cir.

BO) Wiis nencsmsscich baceicaesiscn ese ineonotea ie laednanenan tinal i,12

United States v. Nations, 764 F.2d 1073 (5 Cir. 1985).. i,12

United States v. Oquendo, 490 F.2d 161 (5 Cir. 1974)... 15

United States v. Russell, 411 U.S. 423, 36 L.Ed.2d 366

CITY © asvwstessestpscsah secvionunetniodiqustncpass siusemsambanniuey sa tetaniiaes 11

United States vy. Timberlake, 559 F.2d 1375 (5 Cir.

LOTEY sissssansecctenrvccesasnienrinbirianencasiam aera nae 15

United States v. Townsend, 555 F.2d 152 (7 Cir.

DTT acxpdccbcsctvicieissanntnisivtactaiattastsd pekianmannnaanoapalncanaes 16

United States v. Watson, 489 F.2d 504 (3 Cir. 1973) .. 15

Constitution, Statutes and Rules

U.S. Const. Fifth Amendment (due process clause) .... 2

6 CE TO cen haat ae ee 3

OAD CBO .<uccudtucaoaeee 2,3

OE no eee 2

Supreme Court Rules 20.1 & 20.4 w.ccccsessceeresereeeees 2

In THE

SUPREME COURT OF THE UNITED STATES

Octoser TERM, 1985

No.

NIKOLA KONSTANTINOV,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT (85-2660)

ny

Petitioner, Nikola Konstantinov (hereafter, defendant),

prays that a Writ of Certiorari issue to review the judg-

ment of the Court of Appeals for the Seventh Circuit,

affirming his conviction and sentence for distributing .14

of a gram of heroin in violation of 21 U.S.C. 841(a) (1).

Judgment and Order Below

The Order of the Court of Appeals for the Seventh

Circuit, unpublished per Circuit Rule 35, No. 85-2260, is

set out as Appendix A.

oo eon

Jurisdictional Statement

On June 25, 1986, the Court of Appeals for the Seventh

Circuit affirmed the judgment of the District Court, in an

Order, unpublished per Circuit Rule 35. (App. A) Defen-

dant’s timely Petition for Rehearing was denied on

August 13, 1986. (App. B) This petition to review the

judgment of a federal court of appeals is timely filed

within 60 days after denial of petition for rehearing.

Jurisdiction is invoked under 28 U.S.C. 1254(1) and Rules

20.1 and 20.4 of this Court.

Constitutional Provision and Statute Involved

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

“No person shall... be deprived of life, liberty, or

property, without due process of law;. . .”

The statute which defendant was convicted of violating

is 21 U.S.C. 841(a)(1), distribution of heroin. There is

no issue as to interpretation or application of the statute;

the sole issue at bar involves the defense of entrapment.

_—

STATEMENT OF THE CASE

Nature of the Case

Defendant was charged with distribution of .14 of a

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

Defendant interposed the defense of entrapment, both

during trial, and in his post-trial Motion to Vacate Con-

viction or Grant a New Trial. (R. 5) The court found

him guilty, and sentenced him to 5 years probation with

the first six months in custody. (R. 5, 139)

The Court of Appeals affirmed, (App. A), and denied

rehearing. (App. B)

Jurisdiction of Trial Court

Jurisdiction in the court of first instance is based upon

18 U.S.C. 3231, which provides in part that “The district

courts of the United States shall have original jurisdic-

tion ... of all offenses against the laws of the United

States.” Defendant was charged with having committed

an offense against the United States, to wit, 21 U.S.C.

841(a) (1).

Statement of Facts

[In support of defendant’s position that the evidence

establishes entrapment as a matter of law, the following

operative facts are undisputed; and defendant’s testimony

is uncontradicted and unrebutted. Even taking only the

government’s evidence as true (and discounting defen-

a ws

dant’s testimony),° the evidence establishes entrapment

per se. |

= * e

DEA Agent Perez was introduced to defendant by fe

male government informant “Carmen” on October 8, 1982.

(Tr. 23, 26) “Carmen” was present on this occasion and

on one subsequent occasion when narcotics were discussed.

(Tr. 28-29) Each meeting was instigated by Agent Perez;

each discussion of narcotics was instigated by Agent Perez.

(Tr. 23, 26, 28-29, 36, 50, 56, 58, 87) For some 5 months

after the initial meeting, Perez kept contacting defen-

dant, importuning defendant to procure heroin for him.

(Tr. 36-37, 47-48, 56, 63, 87, 101-02) Although defendant

kept saying [in substance], I don’t deal and don’t know

where I can get any, (see Tr. 7, 29, 50, 56),° he told Perez

that he would try to get some for him. (Tr. 7, 58, 74, 88,

130) During this time, Agent Perez was inducing defen-

* According to the Court of Appeals, “The district judge

rejected Konstantinov’s testimony regarding the source

of the heroin. ... The court found that at the very least

Konstantinov had delivered the heroin in order to con

Perez out of a large amount of money.” Order, App. A,

p. 5. Thus, the district judge necessarily believed at least

a portion of defendant’s testimony. But, even assuming

(arguendo) that his testimony is not credible, the govern-

onl evidence itself establishes entrapment as a matter

of law.

*Such is the gist and substance of defendant’s continu-

ing response to Agent Perez, from their first meeting on

October 8, 1982 until the last week in April, 1983. (See Tr.

130.) For example, on cross-examination of Agent Perez:

“Q). [by defense counsel] He [Konstantinov] told you

he didn’t deal in narcotics, he had nothing to do

with narcotics, isn’t that right?

A. [Agent Perez] That’s right.” (Tr. 29)

— ee

dant with promises of colossal sums of money. (Tr. 30-32,

64-65, 92-93) Perez told defendant that he [Perez] had

some fifty million dollars that needed to be transferred

out of the country. (Tr. 64-65; see Tr. 119, 122; App. A,

pp. 2 & 4.)

Defendant, at age 42, had absolutely no prior record

respecting narcotics. Agent Perez testified that the DEA

had no narcotic file on defendant. (Tr. 34-35) And, per

defendant’s uncontradicted and unrebutted testimony, he

never bought, sold, used or possessed narcotics in his en-

tire life, aside from the “sample” in this case.’ He tried

to keep Agent Perez interested by telling him that he

would try to get some heroin for him, though he did not

in fact have a heroin source, because he wanted to gain

access to Perez’ alleged gargantuan supplies of money.

(Tr. 83-85, 88, 93, 97, 116-18, 130; see fn. 5, supra, quoting

Court of Appeals (App. A, p. 5) summarizing district

judge’s findings: “The court found that at the very least

Konstantinov had delivered the heroin in order to con

Perez out of a large amount of money.”

Defendant wanted to borrow money from Perez to com-

plete repairs to a restaurant, (Tr. 44-45, 91-92, 102), and

even propositicned Perez to go into the carpet business

with him—with Perez’ money to be used for investing in

said business. (Tr. 101)

* Defendant was arrested in March of 1984, about a year

after the single delivery. (Tr. 59, 64, 113) Although Perez

repeatedly tried tc contact defendant after the single de-

livery, he was thereafter unable to reach him. (Tr. 63-64)

pee

There was no evidence whatsoever from which it could

have been inferred that defendant was predisposed to

commit any narcotics offense.*®

After about five months of importuning by Perez and

lulling by defendant, defendant fortuitously came into

possession of a small packet of heroin—.i4 [fourteen hun-

dreths] of a gram—which he delivered to Agent Perez on

April 29, 1983. (Tr. 18-19, 58-59, 109) This was a “free

sample” for which defendant did not receive any compen-

sation. (Tr. 59, 109) Defendant obtained the packet on

April 25, 1983, and coincidentally, the next day on April

26, 1983, Agent Perez again called defendant, after not

having called him for about the previous month.® Perez

asked, “Do you have anything?” Defendant answered,

“Some came in yesterday.” (Tr. 104-05) The delivery

occurred on April 29, 1983. (Tr. 58-59)

*For the Court of Appeals’ summary of the evidence

as to entrapment, see App. A, pp. 2-4, and its condensation

of same, App. A, p. 6, reproduced for the Court’s conveni-

ence in the following Argument, pp. 9-10, infra.

°As to the alleged “source” of the heroin defendant

delivered, though the district judge disbelieved defendant,

it is interesting to note that defendant testified that on

April 25, 1983, an unidentified Mexican approached defen-

dant at Montrose & Kedzie (Chicago), site of a store

defendant was remodeling, and attempted to sell defendant

some jewelry; defendant stated he was not interested.

Then the Mexican offered him heroin, giving him the .14

gram small tinfoil packet as a “sample.” (Tr. 103-04)

[This was the “sample” defendant delivered to Perez on

April 29, 1983.] Curiously, the day after defendant

claimed he had thus acquired the “sample,” on April 26,

1983, Agent Perez—after having left defendant alone for

approximately a month—again began importuning him to

deliver heroin. (Tr. 104)

—

Other than the “sample,” defendant did not thereafter

deliver any additional heroin.”

Defendant testified that if the agent had given money

to him, he would have abseconded with the money and not

delivered any heroin to him. (Tr. 84)

The District Court disbelieved defendant’s testimony as

to the source of the heroin, but found “that at the very

least Konstantinov had delivered the heroin in order to

con Perez out of a large amount of money.” (App. A, p.

5, summarizing District Court’s findings.)

As to predisposition, the District Court relied in part

on a tape-recorded conversation in which defendant par-

ticipated. (Tr. 151"; G. Ex. 2 & 4) (See App. A, pp. 2 & 4

discussing tape-recorded conversation.) In the course of

the tape recording, defendant used certain drug terminol-

ogy; however, per Agent Perez, the prices defendant was

quoting did not seem appropriate. (See G. Ex. 4, pp. 14-

15.)”

Defendant’s failure to supply any further drugs

[though Perez repeatedly (unsuccessfully) tried to con-

tact defendant after the single delivery, (Tr. 63-64) ], cor-

roborates that defendant had no drug source. (See Tr.

59, 64.)

Per the District Court, the tape recording demon-

strates that “the transaction is clearly one... of a willing

participant in a delivery of heroin.” (Tr. 151) This con-

versation was recorded April 26, 1983, three days prior

to the actual, single delivery, and over six months after

Perez met and began importuning defendant.

12 While not determinative of any issue herein, it is

interesting to note that the quality of the fourteen-one-

hundredth of a gram “free sample” was “no good,” per

defendant’s unrebutted testimony as to what “Mario”

[a/k/a Agent Perez] said about it. (Tr. 110, 125) Per

the government chemist’s stipulated evidence, it was of

4.9% purity, (Tr. 19), which the prosecutor acknowledged

be aed high quality material.” (Tr. 148) (See App.

» P. v.

~~

REASONS FOR GRANTING THE WRIT

The decision below—that the defense of entrapment was

precluded by defendant’s predisposition, not to commit

the drug crime at issue, but to commit a financial crime

with which he was not charged—conflicts with decisions

from other Circuits, and with controlling precedent of

this Court, respecting the “lack of predisposition” element

of entrapment.

Certiorari should be allowed so that this Court may

clarify that the “predisposition” aspect of entrapment ex-

tends only to defendant’s mental state with respect to the

particular crime charged.

Applying the proper “predisposition” criteria, the evi-

dence at bar—even according to the government’s evi-

dence—established entrapment as a matter of law.

Synopsis of Argument

“Predisposition” focuses on defendant’s initial willing-

ness to commit the crime with which he is charged. Pre-

disposition to commit a financial crime (with no evidence

of predisposition to commit a drug crime) does not defeat

the defense of entrapment as to the drug crime, respect-

ing which it is undisputed that the government agent ini-

tiated the transaction.* The Seventh Circuit, by holding

that a general criminal predisposition amounts to that

predisposition which defeats the entrapment defense, has

departed from this Court’s precedent and brought itseif

into conflict with other Circuits. (See fns. 3 & 4, p. i,

supra.)

The tape-recorded conversation some three days prior

to delivery, and some six months after the Agent began

** Per the Court of Appeals: “The record conclusively

demonstrates that it was the government agent who ini-

tiated the unlawful activity.” (App. A, p. 6)

rs

importuning defendant to deliver heroin, cannot properly

be used to demonstrate “predisposition”, because this con-

versation itself was the product of the continual, long-term

government inducement. Moreover, the rhetoric used by

defendant respecting drug terminology cannot properly

be used to demonstrate predisposition, considering the

agent’s testimony as to the inappropriateness of the prices

defendant was quoting.

Precepts of due process of law, which underlie the en-

trapment defense, demand that the principles laid down

in the landmark decisions of Sorrells v. United States, 287

U.S. 485, 77 L.Ed. 413 (1932), and Sherman v. United

States, 356 U.S. 369, 2 L.Ed.2d 848 (1958), be followed;

pursuant to which principles, and applying the appropri-

ate criteria respecting “predisposition,” in the instant case,

the evidence established entrapment as a matter of law—

even taking the entirety of the government’s case as true.

ARGUMENT

In its condensation of defendant’s entrapment defense,

the Court of Appeals’ summary of the facts is weighty

support for our position that entrapment has been estab-

lished as a matter of law:

“Konstantinov argues that he was not predisposed

to commit the crime, pointing out that this case in-

volves a single delivery. Also Konstantinov had no

prior record, and in fact, as Perez admitted in his

testimony, he did not have a narcotic file at the drug

agency. Nor did the government present any evidence

of the character or reputation of Kontantinov from

which the court below could have found predisposi-

tion. He also emphasizes that he derived absolutely

no profit whatsoever from the single delivery. The

record conclusively demonstrates that it was the

—_ 1.

governmm=*: «sgent who initiated the unlawful activity.

Also, it was only after several personal visits and

numerous phone calls for an almost seven month

period in which Perez continued to ask him whether

he had found a drug source, that Konstantinov de-

livered the heroin. Further, the inducement offered

by the government was the expectation of receiving

a large amount of money. Konstantinov also argues

the taped phone conversation does not show a de-

tailed understanding of narcotics dealings. In addt-

tion, despite repeated re juests Konstantinov never

again distributed narcotics or engaged in any other

criminal act.” (App. A, p. 6) (Emphasis added.)

Nonetheless, and despite its further concession that “This

is an unusual case involving several close questions,”

(App. A, p. 8), the Seventh Circuit affirmed defendant’s

conviction :

“[C]onsidering all the circumstances as well as the

deference to be accorded the district court as trier of

fact, we cannot find reversible error.” (App. A, p. 8)

Only by falling back on the false premise of “witness

eredibility’—which is irrelevant in this case—and by

focusing on a predisposition to criminality other than

respecting the drug crime at issue, could the Court of

Appeals affirm.

Although paying lip service to the proper test of pre-

disposition—v’z. :

“The entrapment defense focuses on the intent or

predisposition of the defendant to commit the crime.”

(App. A, p. 5) (Emphasis added),

instead of proceeding to determine whether this defen-

dant was predisposed to commit the drug offense charged,

the Court of Appeals has precluded the entrapment de-

ee, aa

fense upon a showing that defendant was ready to “take

the money and run.” But the test is predisposition to com-

mit “the” crime, not “a” crime of any variety.

That the definite article, “the crime,” rather than the

indefinite article, “a crime,” is the definitive factor respect-

ing predisposition, is clear from language of this Court,

recently restated in a well-reasoned Eighth Cireuit deci-

sion, reversing convictions upon finding entrapment as a

matter of law:

“The key question is... whether the government

agent caused or induced the defendant to commit a

crime he was not otherwise predisposed—i.e., will-

ing and ready—to commit whenever a propitious op-

portunity arose. ... [eitation omitted] As the Su-

preme Court has indicated, the principal focus of this

inquiry is upon the ‘intent or predisposition of the

defendant to commit the crime.” United States v.

Lard, 734 F.2d 1290, 1293 (8 Cir. 1984), quoting from

United States v. Russell, 411 U.S. 423, 429, 36 L.Ed.2d

366, 371 (1973). (Emphasis added.)

The Seventh Cireuit’s extension of the concept of pre-

disposition to include a predisposition to commit a crime

—here, a financial crime—whereas the entrapment deci-

sions of this Court and all the other Circuits restrict this

concept to a predisposition to commit the crime with

which the defendant eventually is charged, is an unwar-

ranted and unprecedented extension which should not go

unrestricted by this Court. Such over-extension of “pre-

disposition” conflicts with this Court’s decisions in

Sherman vy. United States, 356 U.S. 369, 2 L.Ed.2d 848

(1958), and Sorrells v. United States, 287 U.S. 435, 77

L.Ed. 413 (1932), as reaffirmed in United States v. Rus-

sell, supra. Moreover, it brings the Seventh Circuit into

conflict with each of the other Circuits—none of which

—— po

has ever held that a predisposition to commit a financial

crime amounts to that “predisposition” which defeats the

defense of entrapment as to a drug crime—where there

is no showing of predisposition respecting drugs, and

“The record conclusively demonstrates that it was the

government agent who initiated the unlawful activity.”

(App. A, p. 6) See, e.g., the following decisions, each, re-

versing upon a finding that the evidence showed entrap-

ment as a matter of law, regardless of any questions of

credibility: United States v. Lard, 734 F.2d 1290 (8 Cir.

1984); United States v. Dion, 762 F.2d 674 (8 Cir. 1985) ;

United States v. Nations, 764 F.2d 1973 (5 Cir. 1985);

United States v. McLernon, 746 F.2d 1098 (6 Cir. 1984);

United States v. Borum, 584 F.2d 424 (D.C. Cir. 1978).

According to such long-standing entrapment law, the

prosecution has the burden of establishing defendant’s

predisposition beyond a reasonable doubt. Lard, supra,

734 F.2d at 1294, n.3. Applying that standard to this case,

no reasonable finder of fact “could have found beyond a

reasonable doubt that... [defendant] was ready and

willing to commit the crimes and that the agents did no

more than afford him an opportunity to do so.” Jd. at 1294.

There is no room for doubt as to this issue, given the un-

disputed facts at bar:

“While law enforcement officials may use strategy,

stealth, and even deception to catch the ‘unwary

criminal,’ they may not arbitrarily select an other-

wise law abiding person, gain his confidence, and then

proceed to beguile or lure him to commit a crime he

would not have otherwise attempted. It is the govern-

ment’s duty to prevent crime, not to instigate or ere-

ate it.” Id. at 1295.

a ae

Here, as in Sorrelis, supra, and in Lard, supra, defen-

dant committed the act of delivery “only upon the insti-

gation and inducement of [the agent],” considering

defendant’s “lack of prior criminal record or dealings in

{contraband],” and that his initial failure to commit an

offense was broken down only after further, repeated

solicitation and inducement by the agent. Lard, supra, at

1294-95.

That predisposition must be shown as to the precise

erime as to which the defense of entrapment is interposed,

is evident from this Court’s opinion in Sorrells, supra,

where the defense was upheld. Sorrells, convicted of un-

lawful sale of liquor, had no prior record, but three

prosecution witnesses testified in rebuttal that defendant

had “a general reputation as a rum runner”; however,

“There was no evidence that the defendant had ever

possessed or sold an intoxicating liquor prior to the

transaction in question.” Sorrells, supra, 287 U.S. at 441,

77 L.Ed. at 416. (conviction, reversed.)

A telling evidentiary detail militating against a finding

of predisposition in this case is that defendant furnished

no additional drugs after delivery of the .14 gm. sample

to Perez. (See pp. 5 & 7, supra.) It has been recognized

judicially that a defendant’s single infraction, not follow-

ed by others, supports a finding of non-predisposition. See

United States v. Dion, supra. There, the Eighth Circuit

reversed one appellant’s convictions for violations of the

Migratory Bird Act, finding he had been entrapped as a

matter of law. The reviewing court expressly noted:

“Additional evidence of Dion’s lack of predisposition is

that he never again sold an eagle to government agents

or to anyone else.” Jd. at 689.

—

Defendant’s tape-recorded conversation with Agent

Perez on April 26, 1983—-three days prior to the single de-

livery, and over six months after their initial meeting

(when Perez began beguiling and importuning defendant)

—was relied on by the district court in finding predispo-

sition, (Tr. 151), and noted by the Court of Appeals,

(App. A, p. 7); in the district court’s view, per this con-

versation, (G. Ex. 2 & 4), “the transaction is clearly one

. of a willing participant in a delivery of heroin.” (Tr.

151) However, what both courts have chosen to overlook,

is that this conversation took place after defendant had

already been cajoled, beguiled and bamboozled by Perez

for over six months. Even if defendant may have been “a

willing participant” at the time of delivery, (three days

after said taped conversation), he became such only as a

direct result of the continuing instigation by the DEA

Agent. (See evidentiary facts, supra.) The same rationale

applies here—but was ignored by the courts below—as

is applicable to a series of deliveries, during the course

of which the government inducement continues. In such

cases—per this Court, in Sherman, supra, it does not even

defeat an entrapment defense if there was more than a

single delivery.* (Here, of course, there was but a single

delivery—which took piace only after more than six

months of government inducement.) Considered in the

light of such decisions, defendant’s willingness to commit

a delivery more than six months after the government

inducement began, cannot be equated with an initial

willingness such as would defeat an entrapment defense.

* Sherman itself involved a series of sales. Moreover,

while the defendant in Sherman, supra, had an extensive

narcotics sales history, the Court held that considering

the government’s repeated requests and defendant’s ini-

tial reluctance, Sherman was not predisposed. 356 U.S.

at 373-74; see Lard, supra, at 1295.

_— wo

Moreover, defendant’s alleged, apparent “familiarity”

with drug terminology obviously was more apparent than

real, considering the evident confusion as to the street

value of heroin, as opposed to cocaine; and additionally,

the prices defendant was quoting did not seem appro-

priate, per Agent Perez. (See G. Ex. 4, pp. 14-15.)

Pursuant to the foregoing, the evidence at bar estab-

lishes beyond peradventure, by undisputed evidence, both

that defendant was not predisposed to commit the drug

offense, and that the Agent repeatedly importuned defen-

dant over a long period of time, overcoming his resis-

tance—and turning him into a lawbreaker—with [false]

promises of huge financial rewards. Thus, the undisputed

evidence establishes entrapment as a matter of law. The

District Court’s and Court of Appeals’ rulings, rejecting

the entrapment defense on these facts, are contrary to the

evidence, and in conflict with decisions of this Court and

of all the Circuits.”

Only by its conclusion that a predisposition to commit

a financial crime defeats an entrapment defense as to

a drug offense, can the Court of Appeals rationalize

affirmance of defendant’s conviction in this case. Such

an unwarranted, unprecedented overextension of the

*JIn addition to the afore-cited Circuit Court deci-

sions finding entrapment as a matter of law, cf. the follow-

ing decisions, each, reversing for instructional errors re

entrapment in jury cases: United States v. Oquendo, 490

F.2d 161 (5 Cir. 1974) (where viable entrapment defense

presented, error for court to instruct in terms of mere

credibility choice between informant and defendant) ;

United States v. Watson, 489 F.2d 504, 508-09 (3 Cir.

1973) ; United States v. Timberlake, 559 F.2d 1375 (5 Cir.

1977).

— =

“predisposition” element of the entrapment defense por-

tends serious consequences to the administration of crimi-

nal justice. In a society wherein impoverished Indians

are entrapped into killing endangered eagles, see Dion,

supra, we do not need to diminish the citizens’ protection

against overzealous government agents, by a holding

which seriously undermines the entrapment d«iense, which

is rooted in due process of law.

“As Mr. Justice Brandeis put it, ‘the government may

not provoke or create a crime and then punish the

criminal, its creature.’ ” Lard, supra at 1292, quoting

from Casey v. United States, 276 U.S. 413, 423, 72

L.Ed, 632, 6386 (1928).

Accordingly, certiorari should be allowed; and, upon a

consideration of the merits, this Court should determine

that, pursuant to application of the proper criteria re-

specting the “predisposition” element of the entrapment

defense, the defendant in this case was, indeed, entrapped

as a matter of law, irrespective of any witness credibility

issues. See cases cited in fn. 3, p. i, swpra; and see espe-

cially United States v. Oquendo, supra fn. 15.

By way of comparison, see the following cases, wherein

convictions were affirmed on the basis of predisposi-

tion; the facts of each are worlds apart from those

at bar: United States v. Gunter, 741 F.2d 151 (7 Cir.

1984); United States v. Kaminski, 703 F.2d 1004 (7 Cir.

1983); United States v. Townsend, 555 F.2d 152 (7 Cir.

1977).

This case presents an ideal vehicle for this Court to

speak on the matter of entrapment, with special empha-

sis on predisposition.

a i

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JuLtius Lucius EcHeEes

KATHLEEN KELLER

Attorneys for Petitioner

— | eo

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 28, 1986

June 25, 1986.

Before

Hon. RicHarp D. Cupany, Cireuit Judge

Hon. Joun L. Corrry, Circuit Judge

Hon. Jorn M. Fuiaum, Cireuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 85-2260 v.

NIKOLA KONSTANTINOV,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 84 CR 235

Hon. Marvin F. Aspen, Judge.

ORDER

After a one-day bench trial, the appellant, Nikola

Konstantinov, was convicted of one count of violating 21

U.S.C. § 841(a)(1) by distributing .14 gram of heroin. He

was sentenced to five years probation with the first six

months in custody at the Metropolitan Correctional Cen-

ter. On appeal, Konstantinov argues (1) that entrapment

was established as a matter of law and (2) that the trial

court improperly restricted eross-examination regarding

the details of money paid to a government informant. For

the reasons discussed below, we affirm.

—

I. FACTS

The only witnesses to testify at trial were appellant,

Konstantinov, and Drug Enforeement Administration

Special Agent, Marcellino Perez, Jr. The testimony re-

vealed that on October 8, 1982, a government informant,

known as “Carmen”, who lived in the same building as

Konstantinov, took Konstantinov and his wife to meet

Agent Perez at a restaurant for lunch. “Carmen” had

previously told Konstantinov that she wanted him to meet

a man who had a great deal of money. The meeting lasted

about thirty-five to forty-five minutes, and narcotics were

discussed for about five minutes. Perez broached the sub-

ject of obtaining heroin. In the guise of a narcotics traf-

ficker from Puerto Rico, Perez told Konstantinov that he

was looking for a white heroin connection. Konstantinov

informed Perez that he did not really deal with narcotics,

but that he had a friend who was then in Europe who

might be able to help Perez. Konstantinov said he would

contact Perez when his friend returned. Perez also told

Konstantinov that he had a large amount of money that

he needed transferred out of the country’ and that he had

access to fifteen million dollars.

Perez and “Carmen” both talked with Konstantinov

several times after the October meeting. At one point

“Carmen” informed Perez that Konstantinovy was going

to deliver a sample of heroin to Perez. This information

This discussion of the laundering of drug money led

to an incident on March 10, 1983, when Konstantinov intro-

duced Agents Perez and Perry to Slabodan Pavlovie and

the four discussed money laundering. See United States

v. Richter, 610 F. Supp. 480, 483 (N.D. Ill. 1985). Ult-

mately, a seventeen-count indictment was handed down.

Konstantinov was named in count one and count seven-

teen. Count one charged Konstantinov and three other

defendants with conspiracy to defraud the United States

in violation of 18 U.S.C. § 371. Id. Count one was eventu-

ally dismissed. The seventeenth count was severed as im-

properly joined under Fed. R. Crim. P. 8(b) and is the

subject of this appeal.

—

led to a meeting on November 19, 1982, when “Carmen”

brought Perez to a building that Konstantinov was reno-

vating. Two other men were present. Perez asked Kon-

stantinov if he had obtained the sample “Carmen” had

mentioned and Konstantinov said that he had not, but he

expected his friend to return from Europe in about one

week. Konstantinov then showed Perez a container con-

taining white powder and asked Perez to identify the

powder. Perez said that it looked like dusting powder

used on cue sticks in pool halls.

Perez called Konstantinov three or four times after the

November meeting asking for narcotics, but Konstantinov

did not have any. On April 26, 1983, Konstantinov met

with Perez and another agent in a car. The conversation

was recorded and played for the court. On April 27, Perez

ealied Konstantinov to arrange for the delivery of a

sample. Konstantinov said that he was unable to contact

his friend and that Perez should call him the next day.

On April 29, Perez again called Konstantinov and arranged

a meeting after Konstantinov said “I have got the sample

for you.”

Later on April 29, Konstantinov and Perez met outside

a restaurant in Perez’s car. Konstantinov gave Perez a

package containing .14 grams of heroin with a 4.9% purity.

Konstantinov told Perez that the sample was from the

same friend that Konstantinov had previously mentioned

and that he would try to arrange a meeting between Perez

and his friend. Konstantinov did not ask Perez for any

money and no money changed hands.

At some time within the next few days Perez came to

see Konstantinov and told him that the heroin was not

good. Konstantinov told Perez he had never bought any-

thing like this before.

No further narcoties were delivered after April 29. Perez

contacted Konstantinov around May 18 to arrange to meet

Konstantinov’s friend, but Konstantinov told him to call

back beeause his friend was out of town. Perez said he

would call in one week. Perez testified that the May con-

—_

versation was the last he had with Konstantinov regard-

ing narcotics because he was unable, after several at-

tempts, to contact Konstantinov. Perez said that he had

problems contacting Konstantinov because he was rarely

home and often said he would be out of town for several

weeks conducting business. Perez’s later testimony, how-

ever, revealed that Perez spoke with Konstantinov on

several occasions about narcotics, but Konstantinov told

him that he was unable to contact the man and that he

did not know where to reach him and had not seen him.

Also, Perez called Konstantinov on March 15, 1984, the

day of Konstantinov’s arrest and almost one year after

the delivery. In the March conversation Perez asked

Konstantinov to obtain some narcotics and Konstantinov

said that he would try to locate someone for him.

Konstantinov spoke in “broken English” at trial, but

did not require an interpreter. Konstantinov testified that

he had never before or after obtained narcotics for any-

one. Konstantinov did not have a friend in Europe nor

did he ever attempt to find a narcotics source. He kept

telling Perez that he would help him to string him along

and to get money from Perez’s laundering activities. Kon-

stantinov claimed he never intended to deliver narcotics,

but only to wait until the money was in his possession,

and then he planned to simply abscond with it. Konstan-

tinov claimed that he had hoped to open a nightclub soon

and needed money. Perez had told him that he had fifty

million dollars and said many times that he would use

Konstantinov to launder money. Konstantinov said he

would help Perez by taking his money to Yugoslavia,

Poland or Russia. Konstantinov had asked Perez for

loans to complete repairs to a restaurant and had asked

Perez to invest in his carpet business. Perez had said he

would see about the loans. nue

Konstantinov alleged that he came into possession of

the heroin when a “Mexican” man looking for a job came

into the building he was renovating on April 25, 1982. The

man first attempted to sell Konstantinov a ring and a

watch; then the man said he had some heroin to sell and

BAe:

— "ee

gave Konstantinov a heroin sample. Konstantinov had

never met this man before and did not know where to find

him. The man told Perez he would return later and that

he had two to three kilos. The man did not ask Konstan-

tinov for any money and Konstantinov never opened the

sample. Konstantinov claimed that his knowledge and

understanding of the quality of the heroin was due to a

conversation with the man who gave it to him. He used

the word “rock form” in describing the heroin on the

date of the delivery only because the man who gave it to

him said they had a lot of heroin in that form. The man

never returned nor did Konstantinov attempt to locate

him.

The district judge rejected Konstantinov’s testimony

regarding the source of the heroin, finding the scenario

without credibility. The judge also found the tape record-

ing as indicative of a willing participant in a delivery of

heroin. The court found that at the very least Konstanti-

nov had delivered the heroin in order to con Perez out of

a large amount of money.

Il. ENTRAPMENT

The entrapment defense focuses on the intent or pre-

disposition of the defendant to commit the crime. See

United States v. Russell, 411 U.S. 423 (1973). Entrap-

ment is established as a matter of law only when the ab-

_sence of predisposition is apparent from the uncontra-

dicted evidence. United States v. Thoma, 726 F.2d 1191,

1197 (7th Cir.), cert. denied, 104 8. Ct. 2683 (1984);

Umited States v. Kaminski, 703 F.2d 1004, 1007 (7th Cir.

1983) ; United States v. Spain, 536 F.2d 170, 173 (7th Cir.),

cert. denied, 429 U.S. 833 (1976). Among the factors rele-

vant to determining predisposition are (1) the character

or reputation of the defendant, including any prior crimi-

nal record; (2) whether the suggestion of criminal] activ-

ity was initially made by the government; (3) whether

the defendant was engaged in the criminal activity for

profit; (4) whether the defendant evidenced reluctance to

— 6 —

commit the offense, overcome only by repeated govern-

ment inducement or persuasion; and (5) the nature of

the inducement or persuasion supplied by the government.

Umted States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir.),

cert. denied, 106 S. Ct. 99 (1985). While none of the fac-

tors alone indicates either the presence or absence of pre.

disposition, the most important factor is whether the de-

fendant evidenced reluctance to engage in criminal ac-

tivity which was overcome by repeated government in-

ducement. Id.

Konstantinov argues that he was not predisposed to

commit the crime, pointing out that this case involves

a single delivery. Also Konstantinov had no prior record,

and in fact, as Perez admitted in his testimony, he did

not have a narcotic file at the drug agency. Nor did the

government present any evidence of the character or

reputation of Konstantinov from which the court below

could have found predisposition. He also emphasizes that

he derived absolutely no profit whatsoever from the

single delivery. The record conclusively demonstrates

that it was the government agent who initiated the unlaw-

ful activity. Also, it was only after several personal

visits and numerous phone calls for an almost seven

month period in which Perez continued to ask him

whether he had found a drug source, that Konstantinov

delivered the heroin. Further, the inducement offered by

the government was the expectation of receiving a large

amount of money. Konstantinov also argues the taped

phone conversation does not show a detailed knowledge

and understanding of narcotics dealings. In addition,

despite repeated requests Konstantinov never again

distributed narcotics or engaged in any other criminal

act.

Viewing the evidence in the light most favorable to the

government as we must, Glasser v. United States, 315 U.S.

60 (1942); Perez-Leon, 757 F.2d at 871, it is apparent that

the judge was presented with specific evidence contra-

BB

—

dicting Konstantinov’s claim that he was not predisposed

to distribute heroin. Perez did initiate the delivery, but

mere solicitation by itself does not establish entrapment.

See Perez-Leon, 757 F.2d at 872; United States v. Rod-

gers, 755 F.2d 533, 550 (7th Cir.), cert. denied, 105 S. Ct.

3532 (1985); United States v. Gunter, 741 F.2d 151, 154

(7th Cir. 1984). Konstantinov himself admitted that he

told Perez during their very first meeting that he would

contact his friend regarding narcotics when he returned

from Europe. See United States v. Garcia, 562 F.2d 411,

416 (7th Cir. 1977) (the fact defendant admitted that he

told the informer during their first meeting that he could

write to sources in Mexico to obtain heroin was specific

evidence contradicting defendant’s claim that he was not

predisposed to deal in heroin.) This fact distinguishes

the present case from United States v. Lard, 734 F.2d 1290

(8th Cir. 1984), which defendant relies upon extensively

to support his claim of entrapment. In Lard, the defen-

dant expressed initial reluctance to engage in criminal

activity. J. at 1295. In this case, Konstantinov never re-

fused to become involved; every time he was asked he

said he would help Perez find heroin and he ultimately

did. Although Konstantinov claimed he lied about a

source and his intentions to help Perez “[p]redisposition

is a question of intent, not experience, and to the extent

defendant engaged in puffery ... this only serves to bol-

ster a finding that he was predisposed .. .” Kaminski, 703

F.2d at 1009.

Moreover, this was a bench trial and the district judge

did not believe Konstantinov’s testimony regarding the

source of the heroin. The district judge found that the

tape recorded conversation showed Konstantinov a will-

ing participant in the delivery of heroin. Credibility

determinations remain with the trier of fact even in en-

trapment cases. Garcia, 562 F.2d at 415, citing Masciale

v. United States, 356 U.S. 386 (1958); United States v.

Navarro, 737 F.2d 625, 636 (7th Cir.), cert. denied, 105

S. Ct. 438 (1984).

—

The defendant indicated that it was the hint of big

money which induced him into procuring the heroin. The

offer of a reasonable inducement is a proper means of in-

vestigating crime. United States v. Belzer, 743 F.2d 1213,

1218 (7th Cir. 1984), cert. denied, 105 S. Ct. 788 (1985).

A large inducement is not proof in and of itself that a

defendant was not predisposed to commit the offense and

becomes of minimal importance where a defendant agrees

to commit the crime before knowing the amount of the

reward. See Kaminski, 703 F.2d at 1008. In this ease, Kon-

stantinov did not participate in the distribution solely to

help a close friend resolve his drug or money problems.

See e.g. United States v. McLernon, 746 F.2d 1098, 1114

(6th Cir. 1984). Instead, he testified that he was motivated

by the hope of stealing the money from the laundering

operation. The fact that Konstantinov was motivated by

greed and unconcerned about breaking the law does not

lead to the inference that he was an “unwary innocent”,

Sherman v. United States, 356 U.S. 369, 372 (1958), ini-

tially refusing to involve himself in criminal activities.

Finally, the defendant’s characterization of the heroin

as “rock form” does indicate a knowledge of the quality

of heroin. Konstantinov claims that the man who gave

him the heroin described it in this manner, but the district

judge rejected his story as incredible. In sum, given all

this, and given also the limited scope of review in this

court of findings of fact and credibility determinations of

the district court, there was sufficient evidence upon which

the district judge could find, beyond a reasonable doubt,

defendant’s predisposition to commit the offense for which

he was charged. This is an unusual case involving several

close questions, but considering all the circumstances as

well as the deference to be accorded the district court as

trier of fact, we cannot find reversible error.

mle Dees i call

—

Til. RESTRICTION OF CROSS-EXAMINATION

Konstantinov argues that he was deprived of his Sixth

Amendment right of confrontation and his constitutional

right to present defense evidence because the trial judge

unduly limited his cross-examination of Perez regarding

the one thousand three hundred dollars “expenses” paid

to “Carmen”, the government informant. The defense

attorney asked Perez on cross-examination what expenses

Carmen had incurred, other than the use of her car. The

court sustained an objection because the informant was

not testifying and was not present on the relevant date.

Thus, Konstantinov contends that he was precluded from

establishing possible outrageous government conduct, see

United States v. Russell, 411 U.S. 423, 481-32 (1973), in

that “Carmen” may have been the kind of forbidden, con-

tingent-fee informer whose participation is a bar to a valid

conviction.

Konstantinov cites as authority for this argument Wil-

liamson, v. United States, 311 F.2d 441 (5th Cir. 1962), in

which the United States Court of Appeals for the Fifth

Cireuit reversed a conviction in which the informant) ed

by the government was paid on a contingent fee to prouuce

legally admissible evidence against certain targeted de-

fendants. The Fifth Cireuit was concerned that such an

arrangement might tend to a “frame up” or cause an in-

formant to induce or persuade innocent persons to com-

mit crimes which they had no previous intent to commit.

Id. at 444. Konstantinov’s reliance upon Williamson is

misplaced. In Williamson, the informant made the pur-

chase from one of the defendants and produced evidence

against both defendants. Id. at 444-45. In this case, Agent

Perez alone witnessed and participated in the transac-

tion which was the basis for the charge. The real issue

was not the credibility of “Carmen”. “Carmen” did not

testify at trial and was not quoted as a hearsay declarant.

The only testimony regarding “Carmen” merely describes

the first two arranged meetings between Perez and Kon-

stantinov. Thereafter, the informant played a decidedly

unobtrusive role in the course of events leading up to the

delivery.

—

The trial court has broad discretion over matters per-

taining to the relevancy and admissibility of evidence as

well as the extent and scope of cross-examination. United

States vy. Pizarro, 717 F.2d 336, 347 (7th Cir. 1983). There

is no evidence that the informant or anyone connected

with the government supplied the heroin. Moreover, the

defendant does not rely upon his relationship with the

informant as inducing him to deliver the heroin. He did

not attempt to call the informant as a witness, adverse or

otherwise, in order to substantiate his story, nor did the

government. Therefore, the informant’s expenses were

not relevant.

Additionally, Konstantinov’s assertion that a conviction

cannot stand if it is based upon participation by a govern-

ment informant paid on a contingent fee basis to “set up”

a particular individual, is incorrect. The Fifth Cireuit it-

self has “confined Williamson to a narrow set of cireum-

stances.” United States v. McClure, 577 F.2d 1021, 1022

(5th Cir. 1978). Factors that militate against the applica-

tion of Williamson include the situation where the agent,

not the informant, made the buy. United States v. Jenkins,

480 F.2d 1198, 1199 (Sth Cir.) (per curiam), cert. denied,

414 U.S. 913 (1973). Furthermore, this Court has declined

to adopt a per se Williamson rule that all contingent fee

arrangements with informants are invalid. See United

States v. Hodge, 594 F.2d 1163, 1167 (7th Cir. 1979) (the

method of payment is properly a matter for the trier of

fact to consider in weighing the credibility of the infor-

mant). In this case, unlike Williamson, there was no like-

lihood that Carmen fabricated evidence in order to con-

vict an innocent person and collect her fee.

The judgment of the district court is affirmed.

—lla—

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 13, 1986.

Before

Hon. Ricwarp D. Cupany, Circuit Judge

Hon. Jonn L. Correy, Circuit Judge

Hon. Jorn M. Fuavum, Cireuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 85-2260 VS.

NIKOLA KONSTANTINOV,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, astern Division.

No. 84 CR 235

Marvin F. Aspen, Judge.

ORDER

On consideration of the petition for rehearing filed by

the appellant in the above-entitled cause, all judges on

the original panel have voted to deny a rehearing. Ac-

cordingly,

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED.