Petition for a Writ of Certiorari — Gunston v. United States

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Office-Supreme Ceurt,. U

JUN 19. 1966,

Supreme Court of the Unged States

‘OCTOBER TERM, 1

__ JOHN F. DAVIS, CLERK _/

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EUSTACE ROPER,

NUNZIO PROVENZANO aii

SALVATORE BRIGUGLIO,

THE sical OF THE STATE OF NEW YORK,

| Petitioners,

Respondent.

—

———

__.. PETITION FOR A WRIT OF CERTIORARI. TO THE

COURT OF. APPEALS OF THE STATE OF NEW YORK —

HARRIS B. STEINBERG 4

Attorney for all petitioners.

Harris B. STEINBERG ©

STANLEY S. ARKIN

Of counsel

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.

Te ee eee De ee eee

INDEX

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Opinions Below ...... See ee eee em cece ence eee eeeece

t I 5 cde hens ba oda es ig wndcsieaases aoe

s €

Questions Presented . EE ee ‘ieee ROR Pr isan

Constitutional Provision Involved CER aro pee nee

ae ee ‘sae ras ae ee Eee a

_ Reasons for Granting the MR Mas

I. Petitioner’s Constitutional ‘Rights: ‘Under :

_ The XIV Amendment Were Infringed cack: 4

IL. The Questions Involved din Tiapestent to : |

.The Fair and piiewad a of s

' Sustice pabshhee OrEsT ee aah eaenteen beebeee 6

NE i aewn Vics wks cmap da ds iesicieteriie! oe |

Appendix A—Opinion i in the Court of hisiaie Bey AO la:

Append: B—Opinion in Appellate Division, First

a Department. .... cee ee oe senseeeecereseeene Qe

Appendix C—List of Citations -,......:c..,..6820) ¢ 6a

Appendix D—Excerpts from Petitioner’s Brief in Hi aes

the Court of Appeals Summarizing and Analyzing bee

the NN ge cal c aeaciees seinaddnas Oued ai ‘Ta

Appendix E—Exeerpts from Petitions: Ss Brief in 7

the- Court of) Appeals in- Support of Motion for.

sap mace sbevaseedan see Vauans saoncense eee / Sia

\ «. Se

.

Wetdacehaheblented ai initiate nde alien ites >

ie Banks v. United States (CA 9th Cir. 1957 ) 249 F. 2d |

fh. Brent Vdc oe hs di canis) er cer

coe ; Bee . ae

TABLE OF wd

/ PAGE

ois Schacher + # ©. Mag, Ct 1944 aN. Y.8..-

RR CON rc! Sema arene Mets Site Oe Rg

United States ex rel. Hall v- People of the: ‘Sate of ,

Nlinots (CA 7th Cir. 1964) 329 F. 2d Pea ‘ 6

: AUzHORITIES Crrep ; ; | ‘e

28 US S. C. §1257(3) eS SET RTE |

Revised’ Penal Law, § 35.40; L. 1965, Ch. 1030 ....... ig

7 Uz S. Cons itution, Amendment XIV, Section 1 ..... 2 ~_F-

. Williams “The. Defense of Entrapment and Related

Problems in ‘Criminal Prosecution’’,. 28 Fordham *

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OG FP vatk iinet Re ES ae

Sherman v. United States (1958) 356-8. 369, 372 . oe

Sorrells v. United States (1932). 287 U. S. 435... « ey

| [nite Slates v v. . Bailey (CA 7th Cir. 1964) 331 P. 2d

i. Rev. 399, BS Coe ett ts ee eee a.

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IN THE, me ao wee

Supreme ‘Court “of ‘the , United States.

OCTOBER TERM, 1965

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No.

‘Eustace Roper, Nunzio Provenzano and

SALVATORE BRIGUGLIO, ? tees, ca

| at ee Se - Petitioners,

v. |

Pease

“Tue PRePLe oF THE STATE OF New York, :

ai iceman

“PETITION FORA WRIT OF CERTIORARI TO THE

‘ “COURT OF APPEALS OF THE STATE OF NEW ‘YORK

Petitioner prays that a writ of certiorari i issue to review .

* the judgment of the Court of ‘Appeals of the State of New

York entered. in this case on March 31, 1966.

’

Opinions Below

- "There was no opinion by. the New York Supreme Court.

The opinion of the Appellate Division (Appendix B, Infra,

PP. 2a-5a) is reported at 24 App. Div. 2d 560.. The opinion

. inthe New. York Court of Appeals (Appendix A, Infra, p.

‘ 1a) is reported at 17 N. Y.2d 711.. By order dated May 5,

1966, the Court of Appeals granted Petitioner’ s motion to a

amend the remittitur.

: , 4

Jurisdiction eps

The judgmnt of the. Court. of Appeals was entered on

‘March 31, 1966. .A motion for reargument was denied, and ~

a motion ‘to amend the remittitur i in this case was granted

ory,

%

on May 5; 1966. The jurisdiction of this Court is invoked

under 28 U. S. C. §1257(3), petitioner having asserted .

below and asserting here deprivation of rights secured ty |

the Constitution and law of the United States.

» °

I. May a State Court, without violating’a defendant’s

_ rights under the Due Process Clause of the XIV Amend-

ment, refuse a defendant’s request to charge the jury on

the issue of entrapment where (1) there is undisputed evi-

dence. that it was the prosecutor who, through his agent,’

made the initial proposal to defendant that he embark on

the unlawful course of conduct resulting in defendant’s in-,

‘dictment, and (2) the prim theory of the an was

—- defendant had. been entrapped?

Il. May a State, without offending “the Due Process

Clause of the XIV Amendment, fail to recognize entrap-

ment as a defense to a criminal ibis

‘Constitutional Provision Involved.

‘isis XIV: Section 1. al persons born or -

naturalized ‘in the United States, and subject to the juris- |

‘diction thereof, are citizens of the United States ‘and of the.

State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of

_ -eitizens of the United States; nor shall any State deprive.

any person of life, liberty, or property, without due process

of law; nor deny to any person, within its Jurisdiction the

equal protection of the laws.’’ -

‘ ; Stat tement | |

en We were. convicted of the crime of hiseasiinia

“Grand Lareeny i in the First Degree by False Pretenses,

after a frial in the vociress — New York County,

een .. $ .

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before Mutten, J., anda jury. Throughout the trial—in the

opening statement to the jury, in the cross-examination of

the witnesses, and in summation—a principal defense con-

tention was that petitioners had been entrapped. (244, 318,

- 668-9, 1105, 1351-4, 1364-6, 1377-8, 1381, 1390-6, 1400-3, #442,

1444, 1448-50, 1452, 1502, 1514-5, 1526-7, 1528, 1529, 1543, -

1588, 1591, 1644, 1646. & 1650-2, 1654, 1655, 1656, 1660, 1661,

1662, 1665-6, 1668, 1685-6, 1701, 2946- 7, 2250, 2252, 2253,

. 2255, 2274, 2282, 2344.) The defense’s contention in: this

regard. had substantial support in the evidence. 2 Despite :

a. specific defense request to instruct the jury on the issue:

of entrapment (2400), the trial judge, in accordance with _

what is the commonly accepted notion of New York law— .

1.e., that entrapment i is not available asa defense *_refused’

the. requested instruction. 3 ~e os

Petitioners’ judgment of conviction was appealed to.the |

Appellate Division, First Department, and that court af-

firmed their conviction, one judge dissenting. - The peti-

_ tioners argued there: that the failure of the trial court: to

_ submit the issue of entrapment to the jury violated their

rights under the Due Process Clause (Petitioners’ brief in

the Appellate Division, p. 23). Mr. Justice Stevens, who

dissented from the judgment of the Appellate Division, did

1 Riediniioss are to pages of the wuinted Record on Appeal tor.

the Court of Appeals. ;

2 The’ evidence in. this connection is “summarized and analyzed

. in detail at pp. 12-15 of petitioners’ brief in the Court. of Appeals,

and pp. 4-7 of petitioners’ brief in support of their motion for

reargumrent, printed in full in the Appendix hereto for the con-

venience of the Court (Appendices D and E, pp. Ta-13a).

_. 8$ee, ag., People v. Sehacher (N. Y. C. Mag. Ct. 1944) 47

N. Y. S. 2d 371, 372:(Not officially reported). See also) Williams.

“<The Defense of Entrapment and Related Problems in Criminal:

Prosecution’’, 28 Fordham L. Rev. 399, 400. Onl ‘recently, the

New York State legislature, recognizing that entrapment is ‘not

presently a defense in New York State Courts, amended the law

to create such a defense, ostensibly for. the first time. (Revised.

Penal Law, § 3.40, enacted by L. 1965, ch., 1030; and Revi 8

comments thereto. ) The new law becomes “effective whic, 4 2 ae

3 ;

ae

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_ the remittitur_by adding the following :

i

<80 on the basis that “‘. . . the contrary evidence not being

so overwhelming as to warrant the Court concluding asa .

matter of law that no entrapment existed, the issue, as one

of fact; should have been submitted to the jury. i (24 App.

Div. 2d 560, “at p. 561.) The majority wrote no opinion.

- Petitioners, after leave to appeal was granted by BuEEE, :

J., 1, appeated their convictions to the Court.of Appeals, That

' court affirmed their conviction. ‘In theif brief to the Court

of Appeals, -petitioners argued that. the failure to submit .

‘the issue of entrapment to the jury constituted a denial of .

' Due Process, guaranteed them by the XIV Amendment to

the Constitution, cP eknapere: Brief i in the Court of Ap-

“ peals, p. 32).

Petitioner’ 8 motion for reargument, or in the alterna-

_ tive, to amend the remittitur to indicate that federal ques-.

tions necessarily“ had béen passed upon bythe Court of

Appeals was granted to the extent that the court amended

-“Upén the —— herein ‘appellants contended

that they were denied due process of law under the

Fourteenth Amendment to the Constitution of the

United ‘States by the trial court’s failure to submit-

_ the issue of ‘entrapment’ to the jury. The Court

-. of Appeals held that the appellants’ constitutional

rights were not. violated.’’

©

* REASONS FOR GRANTING THE WRIT

IL. Petitioners’ Constitutional Rights Under the XIV A

Amendment Were Infringed. Se

At

“1. The decision i in this case represents ‘the first time -

that the Court of Appeals of the State of New York has ~

had the question of whether entrapment is available as a

. defense to a criminal: prosecution squarely presented to it. —

New York (with athe possible exception of Tennessee) is

*the only state jurisdiction which has-not affirmatively rec- —

ognized this defense. (See list of citations, p. 6a, Appen- |

= ; is ‘DS

- dix C.) ‘In fact, the. commonly held notion in New York

is that entrapment i is not a defense there (see n. 3, supra),*

~ and. undoubtedly the trial court’s refusal to instruct the

jury on entrapment stemmed from this belief.

This Court considered the defense of entrapment i in the

context ©! the federal system for ‘the first time in Sorrells

v. United States (1932) 287 U..S. 435, and wrote- that:

.‘‘common justice requires that the accused be: ‘permitted

to prove’’ that he is a person otherwise innocent, whom

- the Government seeks to punish for an offense which is

“the product of the creative activity of its own officials’’

(287 U. S., at p. 451). While. this Court has not yet had

. occasion specifically to characterize entrapment as a denial

‘of Due Process, it is respectfully submitted that the prac-

tice of entrapment is so objectionable to the fair and orderly

administration of justice as ‘to amount to such a denial.

Likeniflg entrapment to the patently constitutionally ob-

jectionable practices of coercing ‘confessions. and making

unlawful searches, this.Court, in Sherman v. United States

_ £(1958) 356 U. S. 369, at p. 372] set its face against con-

vietion obtained by such means. Mr. Justice PRANKFURTER,

in’ a concurring opinion, voiced the rationale of the rule

as follows (356 U. S., at 380):

“. .* . even if his guilt be admitted, the methods

employed-on behalf of the Government to bring about

convictions cannot be countenanced.

+ * *

4 Public confidence 1 in the fair and honorable admin-_

istration of justice, upon which ultimately depends

the rule of law, is the transcending value at stake. i

Accordingly, it is submitted that Petitioners were denied

Due Process of Law by the trial court’s failure to submit

the issue of entrapment to the jury.

4The currency of this notion is pointed . up by a statement

_ made by trial counsel.for petitioner Roper to the trial court:

‘Now, I recognize that entrapment, as such, is not a defense

in this State Court, even if the Court is satisfied that. there

was an entrapment.’’ (1701) ; .

6.

Il. The: Quedtons Invelved ‘Ave’ Innpettent 10 The

Fair and Orderly Administration of Justice.

1. The question of whether entrapment is a matter of

- <Due Process is a subject f conflict between the Seventh

“Circuit and the Ninth Circuit Courts of Appeals. Compare

Banks v. United States (CA 9th Cir. 1957) 249 F. 2d 672,

- with United States. ex rel./Hall v. People of the State of

Illinois (CA 7th Cir. 1964) 329 F. 24 354. The instant

ease ‘presents an opportunity: for this. Court to resolve

that conflict and. settle once and for all whether or not

oie is to be considered a Due Process defense.

A determination that entrapment is or is not a defense of

nstitutional magnitude is important to. the administra-

tion’ of federal crimmal justice in view of the circumstance

.

that many motions under, 28 U. S. C. $2255. seeking col-

laterally to attack both state and federal convictions are

on the ground that the applicant had been entrapped by

the authorities. See, e.g., United ‘States v. Bailey —_ 7th

Cir. 1964) 331 FP. 2d 218, 220.

2. Clearly under the present state of fhe law a New

York accused is treated differently ‘with respect to his

defense, depénding on whether Ke is a state or a federal

defendant. .Thus, a federal defendant can plead entrap-

ment and thereby void conviction, while a state defend-

ant, who is equally the victim of entrapment by the authori-

ties, has no such rights. The corollary, of course, is that’

federal Gnd state law enforcement officers are held to

fundamentally different standards of conduct in the investi-

gation and apprehension ofsuspects of a crime. The New

York State officer can still actively encourage an individual

to commit a crime, and then arrest him for it, while, of

course, the federal officer cannot.. The possibilities in-

-herent in this situation are similar, to those which existed

when the ‘‘Silver Platter’’ doctrine was extant. We sub-

mit, moreover, that the possibilities for real abuses are

not mere theoretical ones.-, Most common of, the cases in

: 4

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7

- which entrapment is pleaded is the narcotics case. “Mit i is.

- common knowledge that ‘federal and state authorities co-

operate extremely closely, especially in New York, in the

investigation of narcotics violations. This being so, un-

less this Court rules that entrapment is a violation of an

~ aécused’s rights under the. XIV Amendment, law enforce-.

ment authorities will be: prone to choose the state forum,

rather than the federal one, in order to avoid an acquittal |

of the defendant based. off his entrapment. An unbecom- ~

ing ‘‘shopping’’ for a favorable. jurisdiction, based on pro-

cedural differences, should not be available to law enforce-

ment officers, faced with the duty of prosecuting a crime

which is cognizable in both the federal and state courts.

‘Such an avenue of discretion will make for a disrespect

for the law, and will result in inequities and injustices

inimical to the effective administration of justice. |

CONCLUSION

"The Petition’ for Certiorari Should be Granted.

Responttully submitted,

ae B. SrereERc

Attorney for all petitioners.

Harris B. STEINBERG

Sranutey S. ARKIN | ig

Of counsel

June, 1966

i

he

* APPENDIX A ~

“Opinion in the Court of Appesis

Reported i in 17 ‘N. Y. 2d 7 a.

The judgments of the Appellate Division should 0 af- .

firmed. We need not decide whether: entrapment is cur-

rently recognized as a defense in New York since, even if it

is, the present case did not create an issue of fact requiring ~

‘submission to the jury (cf., Revised Penal Law, § 35.0, ~

enacted by L. 1965, ch. 1030, eff. Sept. 1, 1967). No-error .

was committed by the-trial court in refusing appellants’ re-

. quest to test the accuracy of Minifon transcripts by requir-

ing the jury to attempt to identify the voices and dialogue ~

without them or by having a.court reporter transcribe the .

tapes as they were being played for the jury. The appel-

' lants: were afforded*considerable latitude to test the tran-

scripts, and all prior transcripts were made available

(People v. Rosario, 9 N Y 2d 286; People v. O’Keefe, 281.

App. Div. 409, affd. 306 N. Y. 619, cert. den. 347 U.-S,989).-——~

We have examined -the additional assignments of error and: ~

find them to be without merit.

4:

la

2a.

* APPENDIX BO

- Opinion i in a Appellate Division, First Department

~ Reported i in 24 A. D. 2d 560."

THE PEOPLE OF THE STATE OF Wie York, Respondent, v. -

Eustace Roper, Nunzio Provenzano and SALVATORE .-

Briguetio, Appellants. | .

AppeaL from a judgment of the Supreme Court, New

York County, rendered March 5,,1963,.upon*a verdict con-

victing defendants of the crime of attempt.to commit ome

larceny by false pretenses. - ‘

J udgmenit of conviction affirmed.

STEVENS, J. (dissenting). I dissent and vote to reverse

and order a new trial.. In my opinion, the question of

entrapment should have been charged by the court and sub-

mitted to the jury as any other issue of- fact.

The initial contact in this case was made by the witness ,

Braun, who spoke to a neighbor and was introduced by tele-

phone by such neighbor*to defendant Roper. - Braun ap-

parently sought a method, not only of terminating the

. picketing of his establishment but of avoiding an election. .

and being rid.of certain gmployees. When the desired ©

solution was not afforded immediately the matter rested.

It was revived when Braun again made an approach as a

result of Braun’s visit to the office of and with some.indica-

tion that it was at the instigation of the District Attorney.

Braun with some degree of effort revived contact with — |

Roper. He had to’ recall himself to such defendant upon

this first completed telephonic conversation. What hap-

pened in the first and subsequent telephone conversations

which were initiated by Braun appears from the transcript

of the recordings in evidence. What happened upon the

first arranged meeting is not so ‘clear for, among other

circumstances, Braun kept cutting the minifon off and on

again. Whether such actions were due to inexperience or

because of a | desire for selectivity one can only hazard a

Appendia B-

guess. The fact is in this important first meeting, set up

Braun’s instarice, we are lacking in complete recorded

teats, and the accounts of what transpired then, and sub-.

sequently, differ. ‘Also, it appears that there was consider-

able drinking at the various meetings.

_ The People. urge entrapmen is not a defense in ew

York and their-position is not without support in the cases

“__-eited= by them. ‘Analysis of some of such eases indicates

~ either that the defendant was the moving force in the |

wrongdoing, or that the-defendant was already predisposed

to commit the crime, or that he was engaged in the doing of .

criminal acts and was afforded an additional opportunity,

or the accomplishment of the deed was made easier. For -

example, in People v. Kriviteky (168 N. Y. 182 [1901}), the

defendant was engaged in counterfeiting the label and

trade-mark of Martell & Co. and Miller, the complainant

. and special agent of Martell, requested labels, the printing . 3

‘of which led to defendant’s ‘apprehension... - To the ery of «

entrapment, the court rightly rejected such defense, observ-

ing the ‘‘purpose of the owners, or of their agent * * * was

. to ascertain if appellant was engaged in the unlawful busi- —

~ ness and that the information was obtained in transattion _

had ‘between them is no defense’? (p. _ 186). And in People

v. Gardner (144 N. Y. 119 {1894]), the defendant, convicted

of extortion, had sought out and approached - the complain- .

ing witness with the proposition. that she pay him money, ‘

specifically $150. In People v. Mills (178 N. Y.-274'[1904]), .

the court pointed out defendant ‘‘proposed the scheme and

put in motion the forces by which the indictmentsswere .

actually removed from the files of thé court and delivered

to him?’ (p. 288). There, as the court observed, even if .

defendant had not, instigated the crime bit took the indict-

ments, property of the State, knowing what they were, with

intent to steal, he would still have been guilty of the offense

charged. The dictum ‘‘The courts do not look to see who.

— out = bait, but to see: who- took it’’ (p. wisi must be

fey .

of such defense fairly consideted and passed upon by the .

entrapment existed, t

been ‘submitted to the jury. \Like all other defenses when.

4a

Appendia B 2 Se

read ° agaiiist the background which eae it. So in

People v: Conrad (102 App. Div. 566 [1905], affd. 182 N. Y.

529) the defendant, convicted of the crime of an attempt

‘to commit the crime of abortion, ‘‘was not a passive instru-

ment in the hands of the entrapping parties. He did the ©

act * * * voluntarily, with full knowledge of the subject and

of. the consequences which would flow .therefrom’’ (pp.

-_ 367-568). Im People v. Moore (142 App. Div. 402 [1911],

affd. 201 N. Y. 570) the trap for the defendant merely

caught the procurer who had done everything to complete

‘the crime. Facilitation of accomplishment to one intent

"on committing a‘crime is not entrapment (Sherman v.

United States, 356 U. S..369). In the cases cited it may

fairly be said as.a matter of law there was no entrapment

and‘so the4ssue need not have been submitted to the jury or,

if submitted, ctacaed by the jury would have been fully .

warranted.

I do not say ure. was entrapment in the case before

us. That should be for the jury to determine. I go no

. further than to say the issue was raised as a defenée, and

the contrary evidence not being so overwhelming as to

warrant the court concluding as a matter of law that no

e, as one of fact, should have

properly raisdd, a defendant is entitled to have the merits

jury. -

Tn charging the ‘jury,’ the court must state to them,

all matters of law which it thinks necessary for their in-

_ formation in giving their verdict and must, if requested,

in addition to what it may deem it its duty to say, inform

. the jury that they are the exclusive judges of all questions —

of fact’? (Code Crim. Pro., § 420, emphasis supplitd). In

- “light of the conflicting versions of the occurrences, and-

particularly i in view of the fact that these defendants had

no prior criminal. record indicative of a continuing course -

mee nnremarr-atere

__ Bye .

: ‘5a

- + Appendia B

e a

of ound the question of entrapment was a question of

fact. Questions of fact are for the jury (People v. Walker, -

198 N. Y: 329). It might be noted that the proposed New

York Penal Law AC 75. ”) rene entrapment ¢ as a

defense.

A plea of not guilty puts in issue every iinet fact

‘essential to the commission of the crime and. the defense

of entrapment can be raised under such a plea (Cf. Sorrells

v. United States, 287 U. S. 435). ‘The factual issue-would _

be whether otherwise unwilling persons were induced to

commit a crime, or whether these defendants were already

so predisposed and were merely afforded an opportunity

to do so. ‘‘Entrapment. occurs only when the criminal

conduct was ‘the product of the creative activity’ of law-

enforcement officials’? (Sherman v. United States, 356 U.S.

369, 372, supra; Sorrells v., United States, 287 U. S. 435,

supra) ‘and unless it can be decided as a matter of law, the

issue should always be one for the jury. No legal agency

should attempt to create a crime in order to punish it, and

ifs the issue be properly raised, like all issues of fact it

‘should go to the jury for resolution.

Botein, P. J., Rabin, McNally and Eager, JJ.; concur e

decision; Stevens, J., dissents in opinion. —

Judgment of conviction affirmed.

Sage

o “wa

Ga

~-aaed V

APPENDIX ¢_

List of Citations

Wheelen Law of Entrapment i in j urisdictions*

Other Than New York

ALABAMA: Johnson v. State “(1952) -36 Ala. App. 634;

Arizona: Hoy v. State (1939).53 Ariz.-440; CatirorNiA:

‘People v. Jackson (1954) 42 Cal. 2d 540; Covorapo: Reigan

v. People (1949). 120 Colo. 472; Cosrorignr:. State v.

- Marquardé (1952) 139 Conn. 1; Froama: Peters v. Brown

(Sup. Ct. Fla. 1951) 55 So. 2d 334; GrorGi: Sutton v.

| State- (1938) 59 Ga. App. 198; Hawan: Terr. ¥. Desha °

{1930) 31 Haw. 474; Ipano: State v. Mantis (1920) 32

_ Idaho 724; Inuino1s: People v. Outten (1958) Ill. 2d 21>

INDIANA: Ditton v. State (1943) 222Ind. 25; Iowa: State:

_v. Heeron (1929) 208 Iowa 1151; Kansas: State v. Leopold

(1952) 172 Kan. 371; Kentucky: Scott v. Commonwealth

(1946) 303 Ky. 353; Loummana: State v. Turner (1961) 241

La. 94; Mame: State v. Calanti (1946) 142 Me. 59; Mary-

LAND: Callahan 'v. State (1932) 163° Md. 298; : Mrommeaz :

People v.:Smith (1941) 296 Mich. 176; Minwesona : State v.

. Poa (1955) 245 Minn. 438; MisstssiPrr: McLemore v. State:

(1960) 241 Miss. 664; Missouri: State v. Stolberg (1928). °

318: Mo.- 958; Monzima; State v. Neely (1931) 90 Mont.

: 199; Nevapa: In re Davidson (1947) 64 Nev. 514; New ~

Hamrsumn: State v. Del Bianco (N. H. 1951) 96 N. H. 436;

New Saneiiy : State v. Rosenberg (1955) 37, N. J. Super.

_197; New Mexico: Kearns v. Aragon (1959) 65 N. M. 119;

Norra’ Canoumra: State v. Nelson (1950) 232 N° C. 602;

Nort Daxora: State v. Currie (1905) 13 N. D. 655; Onno:

State v. Miller (1948). 85 Ohio App. 376; ‘OKLAHOMA:

Beasley v. State (Okla. Ct. of Crim. pApp. 1955) 282 P 2d

249; Onzcon: State v. Beeson (1923) 106. Or. 134; Penn-

SYLVANIA: Commo ywealth v. Kutler (1953) 173 Pa. Super. |

153; SourH Carotina: State v. Jacobs (1961) 238 S: C. 234;

Sovtn Daxorta:/City of Stouaz Fallf v. Farnestad (1946)

71 8. D. 98; Tex.

624; Uran: State \v?:McCornish (1921) 59. Utah 58; Vir-

: Cooper v. State (1956) 162 Tex. Crim. —

‘ cinta: Falden v. Commonwealth (1937) 167 Va. 549; Wasn- -

rmeton: State v. Ragan (1930):157 Wash. 130; West Vm-

amnta: State v. Jarvis (1928) 105 W. “* 499 ; Wrsconsr :

3 State \ v. nope (1957 ) 2 Wis. 2d 410,

oom panera meres amp ME PIP ORE 8 NSN POR TN

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7a

APPENDIX D

Excerpts from Petitioners’ Brief in the Court of Appeals |

a Summarizing and Analyzing the Record

. ce Evidence of Entrapment *

(Pp 19-15)

~ Certainly, the evidence adduced lent itself, Sentiienhae,

-.to an inference that the prosecution had - initiated the

commission of any crime involved in the case. Thus, .

Hubert Braun, the People’s principal -witness,.and the

owner of a business which was being picketed by a’ Team-

- Ser Union local, testified that through the good offices of

a neighbor,. he had telephoned Eustace.Roper, one ofthe

defendants, in September, 1962, to ask the latter to assist —

him with respect t to his labor troybles’ (711). It was un-

disputed that, it Was Braun who sought out Roper, a man

then unknown to him (714). There was nothing in this 1

”-origitfal conversation which could bé construed as unlawful |

or conspiratorial ; Roper merely said he would try to help

Braun. More than two-and-a-half months:later, Braun, at

- the request of the assistant prosecutor, was summoned to

_ the District Attorney’s office (718-9). -Braun and Roper

had never been-in touch with each other since the former’s

original telephone call to Roper. a, the aie ’s ‘ak

gestion, Braun called Roper (720):

“Q,.Did you tell me’ about that phone call to: Mr.

Roper? .

— “6A, Yes, sit. - CTH ee

_ Q,. As a result of that conversation that you. chad

with me on November 1, 1961, what did you do?

‘‘A. IT proceeded to try and get in sie with Mr.

Roper by phone. |

*Q. For what,purpose? a

SE, To see if that offer was still open.” |

@<

* Repeated calls were ‘unavailing, and it was not until No- |

vember 30th that Braun .was able to speak to Roper, who °

had been Bic ll (7 ee At that ae the — tele-

ee |

%

8a :

y F | = Appendia D

phone conversation between’ them clearly’ reveals that

Roper ‘haf forgotten all about Braun baren his original ap-

peal for help (724) :

‘“‘And I introduced myself to Mr. Roper again. )

said, ‘I’m this party that’s got this 810 trouble over —

in New York City.’ And I said, ‘We’re still stand- ~

ing-them off” Isaid, ‘but in’ the meantime things °

have gone from bad to worse.’ I said, ‘Since. the

time’ I spoke with ini ’—he says ‘You’ll have to re-

fresh my memory.’ And I told him who I was, and

so on.’ 3 :

Roper reported that he had*spoken to someone, but that

there was: nothing he could do. Indéed, he suggested to -

Braun that the latter should try the perfeetly legal proee- -

‘durée of a Labor Board ‘election (725). Braun persisted ;

apparently, the prosecutor had instructed him to ask Roper °

‘for a ‘‘figure,’’? and it was Braun who told Roper that he

was willing to pay money to a unionization of his

business (People’s Exhibit 8A) :

‘‘Braun: And, er, I, I don’t know what kind of a

figure is involved or anything else—but Jesus, for

ene, I have to be very honest—we don’t want this

union—I don’t think they want to unionize this shop

—because they wouldn t have done it like they

did—’’ : .

‘Braun was obviously well aware that he was suggesting

something unlawful [‘‘Braun: Ed—better if I call you—

I’ll tell you why, the N. L. R. B. has got guys all over the,

joint here’’ (People +’ Exhibit 8A, supra)]. Roper’s inten-

‘\ . tions, 1 in contrast, as revealed by the conversation, certainly

appeared to be anything but criminal. Thus, Roper sug-

gested that Braun should follow established N. L. R. B.

procedures for an election, and that he should see one

hake 7

2

ar : é :

| yn

9a

Appendix D

— an N. L. R. B. official who was a friend of Roper’ 8, |

to enlist the latter’s aid (People’s Exhibit 8A, supra).

, | If Roper were really contemplating larceny or bribery,

it is hardly likely that he would have wanted the N. L. R. B.

to be a party to his scheme, or that he would have advised

Braun to enlist the aid of the N..L. R. B. to solve his prob-

lems through normal procedures.

Braun called Roper again on December 1st. This call,

‘too, was secretly recorded. ° Several subsequent calls re-

sulted in a meeting on. December 4, 1961, with defendant

_ Roper: Hubert Braun and “the District Attorney prepared

for this meeting, as they did.for all subsequent. ones, by

‘‘bugging’’ Braun’s person with a minifon recording device.

Immediately after this meeting. with defendant and after

all subsequent ones, Braun reported back to the District

Attorney’s office. |

Braun again telephoned defendant Roper on December ~'

* 8, 1961, placing the call froma telephone booth on the ninth’

floor of the District Attorney’s office, to arrange a meeting

that afternoon. ‘Both the telephone conversation and the

conversation among the: three defendants and Braun were

‘surreptitiously recorded. A second meeting on December

8, 1961, with the three defendants, Braun and Milton Silver-

man present also took place. ‘This, too, was recorded.”

_ On December 11, 1961, Braun phoned Roper again to

arrange a’ final meeting for December 12th, telling Roper

that. ‘‘it was a deal,’’ but that he still wanted to talk some

things over with him. This talk was recorded also. ~ o

The morning of December 12, 1961, represented the cul- -

mination of what may be fairly described as efforts to

snare the defendants. Braun produced $2,000 in cash at.

the prosecutor’s, office; this sum was then placed in a travel

folder supplied by Braun and stapled together. The travel

folder was then handed over to defendant Roper, and when

a prearranged signal-was given by Braun bas ett detec-

tives, Roper was arrested. :

f.

=

10a

Appendia D.

A jury would have been justified in finding that Braun,

under the prosecutor’s tutelage, had instigated, encouraged

and persuaded Roper and his co-defendants to move along

a clearly unlawful path. When it is taken into account that

none of the defendants had ever been convicted of any

crime before the present trial; that not one iota of evi-

dence was introduced demonstrating a predisposition on

the part of any of the defendants to participate in criminal ”

ventures of this sort; that the defendants had not been

under any sort of suspicion whatsoever at the time the

initial communication. by Braun was made; and that each

defendant took the stang, and implemented his plea of ‘‘not

guilty’’ by affirmative testimony; that it was Braun who

had _ tried ‘to entice them into helping him in the manrer

described; it becomes ‘clear that a reasonable jury would

have had ample warrant for concluding that the defendants

had been entrapped by an agent of the District ‘Attorney.

Afthe very least, we submit, it was certainly a possible

inference from the evidence, that any unlawful intent in

the, transaction had been initiated by Braun, working hand-

in-hand with the prosecutors. .

<.

4

a

o

lla.

APPENDIX E

Excerpts from Petitioriers’ ‘Brief in the Court oa Appeals

‘in Support of Motion for Reargument Summarizing

and Analyzing the Record Evidence of Entrapment”

(Pp. 4-7)

We respectfully refer the Court to pp. 16-15 of defend- -

ants-appellants’ brief, wherein the record evidence on the

issue of entrapment is analyzed in detail. But there are

tw6 undisputed circumstances shown 1 in the record, either

of which, we submit, is sufficient to raise a jury question

on entrapment, and to ee oe direct the Court’s-atten-

.tion.

1. It was Hubert Braun, the People’ S principal witness

and the owner of a business which was. having labor .

troubles, who, at’ the request of the- prosecutor, called

Eustace Roper, and made the initial proposal to Roper |

that he embark on an unlawful cause of conduct, to wit,

that he assist Braun is preventing the unionization of

Braun’s business. This is shown by the prosecution’s own

evidence. Thus, Braun’s call to Roper on November 30,

1961, was the first time anything which could be construed

as unlawful was discussed,:and it was Braun, ir accordance -

with the prosecutor’s instructions—not. Roper—who made |

the unlawful suggestion (pp. 12-13, defendants-appellants’-

_ brief). Moreover, Roper. acceded to Braun’s entreaty ta.

~ help him in his labor troubles only after persistent urging

by Braun at the prosecutor’ s behest. Roper, at first rather

than agreeing to help Braun, told the latter to go to the

N. L. R. B. (pp. 7, 138, defendants- appellants’ brief). There

-. is absolutely no evidence that Roper or any other of the

defendants-appellants would ever have communicated with

Braun or had anything whatever to do with him, had the

phone call of November 30 not been made at the prosecu-

tor’s instance. But for that call‘there would have been no -

case today. At pp. 15-16 of his brief , the prosecutor argues

that the purpose behind having: Braun call Roper was

. 12a

Appendie EO

s*invdatigation—to ‘find the truth though it be hid i in the

center’’’. Granted that this may have indeed been the

prosecutor’s purpose, nevertheless, it is a’ fair inference,

‘and a jury might have found, that the inspiration for what-

ever defendants-appellants actually did emanated from: the

November 30th phone call. |

2, #& second circumstance from which a jury might have

found that the defendants-appellants were lured by the

‘ prosecutor into an‘ unlawful: course of conduct is that

Braun, acting under the jurisdiction of the district attor ney,

held out the promise of financial reward to them. Thus, —

Braun told Reper that he would be willing to pay money © |

.to prevent the unionization of his business (p. 13, defend-

_ ants-appellants’ brief). This fact alone we sabanit, re-

quired that an instruction on entrapment be given to the

jury. See, Johnson v. United States (€. A. D. C. 1963)

317 F. 2d 127. In Johnson, supra, which involved a con-

viction for the possession of narcotics, the only eyidence

in the case bearing’on entrapment was that a police. officer

had furnished money to an ‘intermediary ’”’, cting for the

government; Whe.in, turn gave the money to the defendant

for_the purpose of buying narcotics. The defendant was -

allowed by. the ‘‘intermediary’’ to keep one of the capsules

‘containing a narcotic substance as his ‘‘reward’’ for carry-

ing out the transactions—i.e., buying the narcotics. . The .

trial court, despite the defense’s request; refused to instruct

the jury on entrapment. Unlike the case at bar, where

there is clear evidence, in addition to the offer of money, .

_ that the prosecution urged defendants-appellants to com-

mit a crime, in Johnson there was absolutely no evidence

_ of importuning or persuasion, other than the.offer of ‘‘re-

ward’’, - Yet the Federal Court of Appeals reversed the

conviction, holding that the evidence of entrapment, though

' . very weak, was not ‘‘non-existent’’, and that, therefore,

the defense was entitled to an instruction on entrapment.

The Court wrote as follows (id., 317 F. 2d, at p. i130):

13a .

Appendix E

‘‘It is reasonable. to. characterize the evidence of

entrapment in this case as not strong; yet we think

it was not so weak as to be non-existent. in the eyes

of the law applicable to the : anes ‘That is_the

basis’ for our decision. lie

Notably, too, the prosecutor does not dispute the exiat!

ence of evidence that defendants-appellants were entrapped.

He argues only that, if entrapped, the ‘defendants-appel-

lants were entrapped into ‘‘conspiring to give a bribe to.

Silverman’’—of which they weré acquitted—not committing .

the crime of false pretenses, of which they were convicted

(p. 17, Respondent’s Brief). However, if the prosecution :

can avoid the defense of entrapment merely by characteriz-

ing conduct which it inspired as falling under one particular

legal rubric as opposed to. another, the whole policy

_~ underlying that defense would easily be frustrated. The

. plam -fact remains, that the prosecution was responsible -

for starting the chain of events which resulted’ in the

defendants-appellants doing thé acts for which they were

convicted. It is the ‘‘methods employed on behalf of the

Government to bring about conviction’? which ‘‘cannot be

countenanced”’ (concurring opinion, Frankfurter, J., Sher-

man v. U. S._[1958] 356 U. S. 369, 380). ‘*. . . The govern-

ment cannot be permitted to contend that he is guilty of

_¢erime where the government officials are the instigators

of his conduct’’ (Sorrells v. United States oo 287 U.S.

435, 452). ‘

‘