# Petition for a Writ of Certiorari — Gunston v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1537%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 385 U.S. 964 ## Text me RARE “Ee = COURT. or. - FILEB: Office-Supreme Ceurt,. U JUN 19. 1966, Supreme Court of the Unged States ‘OCTOBER TERM, 1 __ JOHN F. DAVIS, CLERK _/ = o x _ : . eg 20) 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 a . Te ee eee De ee eee INDEX .- | ; Pa 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 * a> o- 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. eo: ye IN THE, me ao wee Supreme ‘Court “of ‘the , United States. OCTOBER TERM, 1965 at et . ns ‘ . e ! “4 Pa Wey . e ae a - ™ . : ¢ >: i pele . . @s ‘ 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 .. $ . Se enti! A 2 se] & 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. “ 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 " m oe a 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). ‘ ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1537%3A1. Public record. Not legal advice.