Petition for Writ of Certiorari — Akins v. United States

UNITED STATES OF AMERICA,

PETITION FOR A WRIT OF CERTIORARI TO THE |

UNITED STATES COURT OF APPEALS FOR

" "W. S. Moors Petar

200- Petroleum Building |

Jackson, Mississippi 39201

' Attorney for Petitioner

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_ Introductory Statement | a jen Eares.

_ Jurisdictional Statement ... eo

Argument—

(3) Whether the Undisputed testimony of the prose-

| Connie

Appendix A a

Appendix B ante a

_ Appendix C- nnn cndeneeniy :

: Authorities Cited = ©

CASES: |

| Aguilar v. State of Texas, 378 US. 108, 84 S.Ct. 1509,

Questions Ptesented for Review ;

Statutes and Constitutional Provisions Involved ............

Statement of the Case ....... -

Reasons for Granting the eatin iad

(2) Whether the search warrant ‘teed by the Fed-

eral. Officers in-this case violated the Fourth °

easel Amendment and the Fifth Amendment to the .

_™ Constitution of the United States in that said

+ Warrant was (a) not founded _on probable -

cause; (b) an evidentiary search warrant; =m

______-(e)-a- general search warrant. .... “

(2) Whether the trial court’s charge, when read as

a’ whole, sets forth an accurate statement. of

the law of entrapment as applied to the facts

. of this case is

_ cution’s witnesses establishes eee 4 as a

. matter .of law

Accadi v. United States, 257 F.2d°168 (CA. 5, 1958) -

12 L.Ed.2d 723. ncaa , 7,13 —

o

. lew | 7 ¢ = .

° P as

,

y 7 ~*~ =

. ’ . 4

= sen i INDEX :

Berger v. State of New York, 18 N.Y.24 638, 22 NYS.

| 2d'782 (1966) 9313.’

_ Bollenbach v. United States; 326 U. S. 607, 68 S.Ct. 402,

oe __.90-E:Ed. 350 (1946) . 293

Boy d v. United States,-116 US. 616, 6 S.Ct. 524, 29

“LEA, 746 (1886) ...: “CSE 13, 15

‘Chapman v. State of California, 87 S.Ct. 824 (1967) ...... se ce

_ Clancy v. United States, 276 F.2d 617 (C.A. 7, 1960) ..

Coa: v. State of Louisiana, 379 US. 536, 85 S.Ct. 453,

\\43 LEd.2d 471 (1965) 27, 30, 32.

Cox v, State of Louisiana, 379 U.S. 559, 85 S.Ct. 476,

By. L.Ed.2d 487 (1965) 26, 27,2832

nn Carrington, 19 Howell’s State Trials, 1029 - id

PAT68) | Me 71

Fahy v. State of Connecticut; 375 USS, 85, 4 S.Ct. ee:

- 11 L.Ed.2d 171 (1963) ....... .

Gouled v. United States, 255 US. 298, 41 S.Ct. 261,65

LE. 647 (1921) ......... aia, 18,15

Hansford v. United States, 303 F.2d 219 (C.A. DC.,.

a... nt, 18,20, 22

Harris v. United States, 331 US. 145, 67 S.Ct. 1098, 91

L.Ed. 1399 (1947) 13

| Jordan v. United States, 348 F.2d 433 (C.A. 10,1965)... 22

Katz v. United States, 369 F.2d 130 (C.A. 9, 1966), 87

S.Ct. 1021 (1967) .. SS, RO me > oe

_ Lathem v, United States, 259 F.2d 393 (C.A. 5, 1958). 220 -"

" Leahy v. United Statés, 272 F.2d 487 (C.A.9, 1959) ........\ 12

Lewis v. United States, 87 S.Ct. 424 (1966) oc. 20

Marcus v. Search Warrants, 367 US. 717, 81 S.Ct. 1708,

ke RT a; 5 jek esata nea 9

Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72

a cceeet 11, 12

Merritt v. United:States, 349 F.2d 19. c. A. 6, 1957) ...... 12

‘Morissette v. United ‘States, 342 U.S. 246, 72 S.Ct. 240,

8 2 9. Gobemeneatianmene menial 24

rea apoio , r ame a . plowenemmennrts

.

am ee —— —_

;

<

INDEX ; 2 im

4

* Nuckols v. United States, 99 F. 2d 353 (C.A. D.C., 1938) .. 12

~/ Osborn v, United States, 87 S.Ct. 429 (1966) ......:......20, 21

People v. Markowitz, 18 N.Y.2d 953, 277 N.Y.S.2d 149

(1966) ..... 28, 32

"Raley v. Ohio, 360 US. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344

hf Spe ace tiemee wine ine nen EP ..26, 28, 30, 31, 32

itetinden v. United States, 87 S.Ct. 717 (1967 ), 366 F.2d

575 (C.A. 10, 1966) . 23

“ Serao v. United States, 367 F.2d 347 (C.A. 2, 1966) ......! 9

Sherman v. United States, ‘356 Us. 369, ® S.Ct. 819,

(2 L.Ed.2d 848 (1958) | sooo BL, 32

Silverthorne Lumber Co, v. United States, 251 U.S. 385,

40 S.Ct. 182, 64 L.Ed. 319 (1920) . vores 13, 15

- Sorrells v. United States, 287 U. s. 436, 53 S.Ct. 210, 77

- L.Ed. 413 (1932) .1....: 21

Stanford v. State of Texas, 379 U.S. 476, 8 S.Ct. 506,

13 L.Ed.2d 431 (1965) ...............5 seedy 13 -

Steele v. United States; No. 1, 267 US. 498, 45 S.Ct 414,

69 L.Ed. 757 (1925) 12

United Brotherhood of Carpenters v. United States, 330

‘U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973 (1946) potsieincinnee ae

United States v. Akins, 372 F.2d 291 (C.A. 6, 1967) ..:... 1

United States v. Collier, 313 F.2d 157, 159 (C.A. 7, 1963) 16

‘United States v. Cooper, 321 F.2d 456 (CJA. 6, 1963) .... 22

United States v. Head, 353 F.2d 566 (C.A. 6, 1965) ........ 99

_ United. States v. Lefkowitz, 285 US. 452, 52 S.Ct. 420,

‘76 L.Ed. 877 (1932) ‘13

United States v. Littwin, 338 F.2d 141 (C.A. 6, 1964) .. 22 »

' United States v. Thompson, 366 F.2d 167 (C.A. 6, 1966) 2.

United States v. Williams, 319:F.2d 479 (C.A. 6, 1963) .. 22

Warden of The Maryland Penitentiary v. Hayden, 363,

- F.2d 647 (C.A. ae) BeeeN Om LITE SEY Sem Racmenemer sealers 9, 13, 16

Weeks v.. United States, 232 U:S. 383, 34 ‘S.Ct. 341,58

L.Ed. 652 i poems ; 13, 15

‘ ) , sn nc a A aS cata " - | .

pee tee INDEX

of _& - Unrrep Srates CoNSTITUTIONAL PROVISIONS — :

Fourth Amendment sd A ee “ieee 3, 13:

_ Fifth Amendment . : ....3, 7, 8, 13, 25

Ninth Amandment ra pconetieenity Bile. Wy 10

~ Tenth Amendment a ciel snveoeeeedy 13, 15

Fourteenth Amendment . ; yes .16;27

| STATUTES OF THE UNITED Srives 1 ae.

Rule 75(1) of the Federal Rules of Civil Procedure ....... 2

18 U.S.C, 1952 Zi EAT 3,9...

* 28 U.S.C, 1254(1) . : a rae

| _ Orner AutTHorrTies 3 ms

Brown, ‘ Catherine ‘Drinker, Miracle at Philadelphia

« (1966) : 14

Herbert, George, Jacula Prudentum ee) es ear

: :

ee ies

o-

SUPREME COURT OF THE UNITED STATES

“

No.

2

WERT LANELVIN AKINS,

Petitioner,

vs. he ate ts

UNITED STATES OF AMERICA,

_ PETITION FOR A WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS FOR |

INTRODUCTORY STATEMENT

The petitioner, Wert Lapelvin ‘Akins, respectfully pe-

_ titions for a writ of certiorari to review a judgment and

order made by the Court of Appeals for the Sixth Cir-

. - "cuit reported as United States v. Akins, 372 F.2d 291 (C:A. Ry

6, 1967), affirming a iodarent spon the petitionet made.

=e =e 2 ;

and entered by the United States District Court for the

Western District of Tennessee, , enere Devteln, on July 6,

‘1965 (App. 361a).

The opinion of the Court of ibdiie is ae and

bound with this petition (App. A).. ¢

This case-was decided ‘by the United States Court of

Appeals for the Sixth Circuit on February 6, 1967, and

judgmient was entered that date. The Court of’ Appeals

- granted a motion to extend the time for filifig a petition

for rehearing until March 18, 1967. The petition for re-

hearing was denied on April 3, 1967. The Court granted

a motion to stay mandate pending application for cer-

tiorari until May 12, 1967.

Rule 16(e) of the Rules of the inis of Appeals for

the Sixth Circuit permit the use of an appendix record

on appeal, under the authority conferred by Rule 75(1)

of the Federal Rules of Civil Procedure. The petitioner

filed a printed appendix in the Court of Appeals, and no

appendix was filed by the respondent. The Clerk of the

~ Court of Appeals for the Sixth Circuit filed with the Clerk -

of this Court a certified copy of the record and p-oceed-.

ings. in this case.. The references to the record in this

petition are to the printed Appendix to Brief of Defend-

_ant-Appellant filed in the court below, nine additional

copies of which were forwarded to the Clerk of this Court

by the Clerk of the Court of Appeals for the Sixth Cir-.

- cuit.

JURISDICTIONAL STATEMENT

Petitioner believes this Court has jurisdiction to review

the decision by writ of certiorari by virtue of 28 USC

1254(1).

"QUESTIONS PRESENTED FOR REVIEW

1. Whether the search warrant used by the Federal

officers in this case violated the Fourth Amendment and

the Fifth Amendment in that said warrant was (A) not .

founded on probable cause; (B) an evidentiary: search —

- ‘warrant; and. (C) a general search ‘warrant,

2. Whether the trial court’s ‘charge, when via as a

. whole, sets forth an accurate statement of the law of en-

. trapment as applied to the facts of this ade

- Whether the undisputed testimony of the prosecu-

tion’s witnesses establish entrapment as a matter of law. -

STATUTES AND CONSTITUTIONAL PROVISIONS. .

This case involves 18 USC 1952 and Amendments IV,

V, IX and X to the Constitution of the United States, the

full text of which are appended in Appendix B.

° $TATEMENT OF THE CASE

There are no substantial conflicts in the evidence in

this case. Petitioner was found guilty by a jury on five |

counts. of a six-count- indictment charging him with caus- _

ing gambling. supplies and equipment to be shipped in

interstate commerce with the intent of carrying on an

unlawful gambling business in cramer aa in violation of

18 USC 1952. . |

Petitioner owned and salina a professional gambling

casino known as the “Turf Club” in Tipton County, Ten-

nessee, some eighteen to twenty miles North of Memphis,

’ in violation of the laws of the. State of Tennessee, from

January of 1962 until the date of his trial.

4

md Carl T. Stahl operated a games. and gaming equipment

business known as Taylor and Company in Chicago, Illi-

- " nois. For some time prior to 1964, FBI Agents had been

conducting an investigation of Stahl’s operations in Chi-

About: the middle of May, 1964, John Glenville, an

FBI Agent in their Chicago office, talked with Stahl rela-

‘tive to his business. The Agent said that Stahl would

have to go down tothe U. S. Attorney’s office-and sign.

a Cease and Desist Agreement (App. 279a) |

Stahl called his attorney, Sherman C. Magidson, and on

or about May 22; 1964, Stahl and Magidson met with FBI

Agent John Glenville and a Mr. Reagan, who was an As-

sistant United States Attorney in Chicago .(App. 301a).

ae Stahl, Magidson, Glenville and Reagan went through

Stahl’s catalog and specified merchandise which Stahl

could send in interstate commerce. Cards, chips and dice .

were orally designated as items which Stahl could send

lawfully through interstate commerce to any point in

the'country (App. 302a). They discussed all of the mat-

ters for approximately four hours (App. 302a).

In July of 1964, Magidson received a draft of the agree-

ment from Reagan. He made several corrections and

sent the draft back to Reagan (App. 804a).

Magidson was later sent a final draft which was slain

by Stahl either in the last week in September of 1964 or ©

the first two weeks in October of 1964 (App. 314a). The

record is not clear whether Stahl read the agreement or |

was furnished: a copy of it.

Magidson .made a photocopy of the agreenient before

Stahl signed it and kept it in his file (App. 310a). The

photocopy of the unsigned and-undated agreement was

ra

entered in evidence (App. 354a).. There is nothing in the

record to indicate that the agreement signed by Stahl was

ever ergs by any court or approved by the er

_ ment.

- During this time, FBI pears interviewed the gethener .

at his residence in Memphis on. two different occasions

“about the 23rd day of January, 1964,.and about ‘the 15th

day of May, 1964 (App. 169a, 174a, 175a, 226a, 228a and

and 240a). FBI. Agents also made visits to the petition-

' er’s property. located in Tipton County about the 13th

day of May, 1963, about the: 15th day of May, 1963, and

about the 30th day of March, 1965 ° (App. 118a, 119a, 149a,

17la, 174a, 223a, 224a, 101la, 102a). On each of the oc-

casions, the FBI Agents found no violation by petitioner of

the arty renee statute (App. 225a, 226a, 227a and

228a).

Prior to September of 1964, Stahl] had never sold mer-

_chandise to the petitioner (App. 281a). Petitioner tele-

- phoned Stahl during September of 1964, prior to Stahl

signing the agreement, and Stahl informed the petitioner

that he had cleared with the United States Attorney and

- the FBI that it was legal for Stahl to ship to the peti-

tioner poker chips, playing cards and dice (App. 281a).

During the conversation, petitioner. inquired . whether:

Stahl could ship him a layout, which ‘is felt cloth with

numbers printed on the cloth (App. 282a). Stahl in-

formed the petitioner that layouts were illegal to ship

and the petitioner informed Stahl to forget about the

layout, that he did not want one if it was illegal (App.

282a).

_Based upon the representations made by Glenville and :

Reagan, as: relayed to the petitioner by Stahl, the peti-

tioner ‘ordered the playing cards, dice: and poker chips

from Stahl, the merchandise was shipped on five differ- .

ent occasions, and the petitioner was convicted of doing |

the very act that Reagan and Glenville orally represented

to Stahl was lawful.

_One of the FBI Agents who conducted, the search testi-

fied that he did‘not see the search warrant until after the

petitioner’s property had been searched and his property

removed from the premises -(App. 89a). FBI Agents ex-

amined the petitioner’s personal papers situated in his

. desk and made notes from his personal papers, eae a

some of his checks (App. 140a-I4la),

The search was conducted on May 19, 1965. The offi-

cers seized several hundred items, amounting to about a

“truck load” of petitioner’ s property, including ten fire-_

arms, hand guns, rifles, shotguns, a roulette table and

wheel and three dice tables (App. 17a, 15la), under the

authority containéd in the search warrant (App. lla) to

seize “other material used in the business. enterprise in-

volving gambling. ras :

. At the conclusion of the respondent’s proof, the. ‘pett-

tioner moved that all of the evidence and information ob-

tained by the officers be withdrawn and excluded from

‘consideration by the - jury and that the evidence and

information be suppressed (App. 297a); renewed the mo-

tion to suppress (App. 297a); and moved for a judgment

of acquittal upon the grounds that the proof showed that

entrapment was established as a matter of law (App.

298a). All of the motions were overruled (App. 299a). ie

The petitioner called only one witness, Sherman C.

Magidson, the attorney for the witness Stahl, who sub-

stantiated the testimony of Stahl given on cross-examina-

. tion.

4

The trial court charged the jury (App. 336a) that the

entrapment was lawful if the petitioner was not an inno-

cent person, or if the petitioner were engaged in similar

activities or crimes, or was ready and willing to violate

the law. The petitioner made four special requests (App.

- 347a-350a), which were refused (App. 325a). The grant-

ing of the special requests would have cured the charge

given by the tridl court, and would probably have cured

‘the argument of counsel for _the government (App: 327a-

328a). aa

REASONS FOR GRANTING THE WRIT

‘ The decision rendered by. the Court of Appeals for the

Sixth Circuit is in conflict with a decision of the Court

of Appeals for the District of Columbia Circuit on the

same matter. The charge given by the trial court on the

question of entrapment is in direct conflict with a charge

denounced in Hansford v. United States, 303 F.2d 219 (CA.

DC. 1962).

The Court of Appeals for the Sixth Circuit in render-

ing this decision of necessity decided an important ques-

_ tion of federal law which has ‘not ‘been, but should be,

settled by this Court. The question is subsidiary to and ~

_ fairly comprised within Question One herein, and is

whether the seizure of evidentiary objects other than pri-

vate papers violates the Fifth Amendment, and whether

the “Gouled tule” is a dying doctrine.

The Court of Appeals for the Sixth Circuit decided a

federal question involving searches and seizures in a way

in conflict with applicable decisions of this Court, _includ-

_ ing Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65

L.Ed. 647 (1921); Aguilar v. State of Texas, 378 U.S. 108,

- 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Stanford v.. State

of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

bs oe

ARGUMENT |

1. ial dias tin seen caus ed tw 4 the federal

officers in this case violated the Fourth Amendment and the

Fifth Amendment to the. Constitution of the United States —

‘in that said warrant was (a) not founded on probable cause;

_ (b) an evidentiary search — and (c) a sepsien search

warrant,

_ We are indebted to Burt Marks, Esquire, of the 5 ieircity

Hills, California, bar, for his kindness in furnishing us a

copy of his petition for. writ of\ certiorari to the United

States Court of Appeals for the Ninth Circuit filed in Katz

. V. United States, No. 895, facts and opinion, 369 F.2d 130

“(C.A. 9, 1966), certiorari :granted, 87 S.Ct. 1021 (1967).

The question last above stated is paraphrased from the

question stated by Mr, Marks, adding only the reference

to the Fifth Amendment as noted by Mr. Justice. Bradley

in Boyd v. United States, 116 U.S. 616, at 633, 6 S.Ct. 524,

‘29 L.Ed. 746, at 752 (1886): ,

“We have already noticed the intimate relation be-

tween the two amendments. They throw great light

on each other. For the ‘unreasonable searches and

seizures’ condemned in the Fourth Amendment are

almost always made for the purpose of compelling a

man to give evidence against himself; which in crimi-

nal cases is condemned in the Fifth Amendment, and

compelling a man ‘in a criminal case to be a witness:

himself,’ which is condemned in the Fifth

Amendment, throws light on an ‘unreasonable search

and seizure’ ‘within the meaning of the Fourth ‘Amend-

ment. ”

The search warrant i in Katz (369 F.2d at 134, footnote 4)

described the things to be seized as:

AY. ie certain property, namely bookmaking rec-

ords, wagering paraphernalia, including but. not lim-

ited to bet. slips, netting magnets, run down sheets,

SOREN DIF OREN oY vem oo

- schedule sheets indicating the lines, adding machines,

money, telephones, telephone address listings which

are designed and intended for use as the. means of

committing criminal offenses in violation of Title 18, .

. United States Code Section 1084, and violations of .

441, 4412 and Section 7203 of, the Internal Revenue

Code. Rze

We are also indebted to. Albert R. “‘Tumbull, wile ae

the Charlottesville, Virginia, bar, for his kindness in fur-

nishing us a copy of all of the briefs filed in Warden of

The Maryland Penitentiary v. Hayden, No. 480, facts and

opinion, 363 F.2d 647 (C.A. 4, 1966), certiorari granted 87

S.Ct. 290 (1966), argued April 12, 1967.

There are some facets of this ‘cons: siunding to Berger, ¥:

"State of New York, No. 615, facts and opinion, 18 N.Y.2d

_ 638, 272 N.Y.S.2d 782 (1966), and Serao v. United States,

- No. 869, facts and opinion, 367 F.2d 347 (C.A. 2, 1966).

On page 2 of the Brief for the United. States as Amicus

Curiae in ‘Warden, it is stated:

“We recognize, of course, that Rule 41(b) of the

Federal Rules of Criminal Procedure presently .au-.

thorizes the issuance of search warrants only for the

search and ‘seizure of fruits or | instrumentalities of

crime. ” ;

As suggested by our benefactor, Mr. Marks, because of

the seizure of items not specifically described in the war-

rant, assuming jt was not too general, the. entire search

_must be declared invalid since the‘ validly seized items

. cannot be served from the invalidly seized items. See .

Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6

en 1127 (1961).

A prerequisite to any United States Court or Com-

‘missioner acquiring jurisdiction to issue a search warrant

under the provisions of 18 USC 1982, must be an _—

10.

r

_- tion, and probable cause supporting ‘the allegation, that .

ei someone “* * * travels in interstate or foreign commerce: —

or uses any facility in interstate or foreign commerce, in-

cluding: the mail, with intent to * * *” do the things pro-

hibited by the statute. The affidavit (App. 13a) does

not establish that Casey knew, of his own knowledge, that

petifioner used a facility in interstate commerce; or that

petitioner admitted that he used a facility in interstate

commerce; or that a reliable or credible’ person informed

Casey that the records he examined were the records of

Taylor and. Company. -

@

All that appears from the affidavit is that ‘Casey ob-

_ served gambling in progress,- which did not violate any

laws of the United States; that the petitioner admitted he

operated a gambling establishment known as the Turf

Club, which did not violate any.laws of the United States;

that Casey examiined some records, which he concluded,

on information not available to the United States Com-

missioner, were the records of Taylor and (@mpany of

Chicago, and that from this examination, he suspected,

- believed or concluded that the petitioner had caused Tay-

lor and Company to ship gambling supplies to the peti-

tioner in Memphis for use at his gambling gee in

Tipton County.

The only “illicit” pert of the gunbling Staiiinin accord-

ing to the laws of the United States, was the use of the

things which had :traveled in interstate commerce. There

are no“ederal common law crimes. The warrant makes

no attempt to limit the search to those items of personal

_ property which Casey had probable cause to believe were

_ traveled in violation of the laws of the United States, and

- which might be termed contraband, but included items

which could only bé used as “mere amet ” Some of

oe

i .

the items of personal property not having traveled in

interstate commerce, but described “as other material” in

the affidavit for search warrant and the search warrant,

were actually introduced in evidence at the trial.

On July 4, 1776, a small group of revolutionaries made

some libelous. statements regarding the “present King of

Great Britain.” That King and the petty officers to which

it would be directed would have appreciated the warrant

in this case. It is a wonder that one “truck load” handled

it. all.

The United States Commissioner who sia the war-

rant should not have been surprised if the agents brought

back to hirn all the personal clothing worn by the em-

ployees, toilet tissue, food, draperies, telephone, fixtures

and wires, gas fixtures and lines leading to the property,

electric lines, the lawn mower, lightbulbs and light fix-

tures, ash trays and all of the cleaning utensils and sup-

plies. All-of those items traveled in interstate commerce,

and their use certainly facilitated. the operation of the

business. All could, have been seized under the “other

“material” directive in the warrant.

Mr. Justice Butler delivered the’ opinion of this Court

in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74,

76, 72 L.Ed; 231, 237 (1927) in which it «was held:

“The requirement that warrants shall particularly

describe the things to be seized makes general searches |

. under them impossible and prevents the seizure of

* one thing under a warrant describing another. As to

what is to be taken, nothing is left to the discretion -

of the officer executing the warrant.”

If each Special: Agent now in the anaes of the FBI -

were to make an independent search of the Turf Club in

an honest attempt to execute the warrant to the letter, it

Py st : 12

would be a ae to this writer if any of the hands

seized the ‘same number of oe ‘much less the same .

: items. :

- The _government’s reliance on: Marron and. Steele v.— .

. United States, No. 1, 267 U.S. 498, 45, S.Ct. 414, 69 L.Ed. |

757 (1925) to. justify the description of the things to be

_.- seized is misplaced. Every place where intoxicating

_ liquors were being unlawfully. sold was, under the terms

of the National Prohibition Act, declared to be a common

nuisance. The entire places in Marron and Steele were

_ common nuisances and unlawful, according to the laws of

the United States. The carrying on of a. gambling busi-

ness unlawful under state law is not contrary to federal

_ law. It is only the traveling in interstate commefce and. -

later. use of things to facilitate the carrying on of the

business which is contrary to federal law. |

_- We do not believe that Marron stands for the proposition

that the records of a business illicit'in its entirety under

the laws of the United States are instrumentalities of a

crime committed against the United States. See Leahy

' Vv. United States, 272 F.2d 487, 491 (C.A. 9, 1959) and Katz

v. United States, 369 F.2d 130, 134 (C.A. 9, 1966). We do

know, however, that Marron does not stand for.the propo-

_ sition that in the search of a. gambling establishment, the

same descriptive particularity is not..as necessary as it

‘would be in the case of stolen property or goods, not-

withstanding Nuckols v. United States, 99 F.2d 353 (CA...

D.C.,.1938); Merritt v. United States, 349 F.2d: 19 (CA. 6,

1957); and stad v. United States, 276 F.2d whe (C.A.

7, 1960).

‘The ‘warrant in this case was not founded on. ussite

- cause; it was an evidentiary search warrant, a general

search waren and a writ of abies it was contrary

o

é +B

to the rights guaranteed to the sail by: the Fourth

- Amendment and by the Fifth Amendment; it violated the

rights reserved by the people by the Ninth and Tenth

‘Amendments; and is directly contrary to the following

decisioris of this Court: Boyd v. United States; 116 US. |.

616, 6. S.Ct.- 524, 29 L.Ed. 746° (1886); Weeks v, United

States, 232) U.S. 383,..34 S.Ct. 341, 58 L.Ed. 652° (1914);

. Silverthorne Lumber Co. v. United States, 251 US. .

385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Gouled v. United |

States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647.

(1921); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct.

_ 420, 76 L.Ed. 877 (1932); Harris'v. United States, 331 U.S.

145, 67 S.Ct. 1098, 91 L.Ed. 1399. (1947); Aguilar v. State

of Texas, 378 U.S. 108; 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964),

and Stanford v. State of Texas, 379 U.S. 476, 94 S.Ct. 506,

13 L.Ed.2d 431 (1965). . - : |

hs aed lca tia oh Sak a

and concise’ in this’ petition. We realize that the “mere

evidence” or the “Gouled rule” was exhaustively briefed |

_in Warden and Berger; however, there are two. points

which we think important. —

The first is that despite the claim by the United States

" that there is no historical support for the proposition that

the Fourth Amendment was intended ‘to forbid searches

for ‘evidentiary matter other than private papers, no au-

thority other than Entick v. Carrington, 19 Howell’s State

“- Prials, 1029 (1765) was cited to show what was the com-

: mon law in England between 1740 and 1791. “There

be additional authority available: in England, if it is aa

‘ available here.

°

The State of Maryland otind that the “Gouled rule”

causes much confusion and. inconsistency and does not

accomplish any legitimate purpose. There are countries

,

14

on this planet whose law enforcement’ does not cause

confusion or inconsistency, but those law enforcement agen-

‘ cies are not limited by the common law, as is ours. The

government and the State of Maryland forget ‘that there

were many patriotic Americans who opposed the writing

down of a bill of rights. To Alexander Hamilton a bill

of rights was more than’ unnecessary. It would be dan-

gerous, he said. “Why declare that things shall not be

done which there is no power [in. Congress]: to do?”

Catherine Drinker: Brown, Miracle at en an) .

page 245.

James Wilson told a meeting of Pensions citizens,

/ “Enumerate all the rights of men? I am sure that no

gentleman in the late Convention would have attempted

such a thing.” Miracle, supra, page 245.

To complete their list.of unalienable rights, Noah Web-:

ster suggested a clause, "that everybody shall in good

weather, hunt on his own land, and catch fish in rivers

that are public property *.* * and that ‘Congress shall

never restrain any inhabitant of America. from eating and

| “drinking, at seasonable times, or prevent his lying on his

left side, in a long winter’s night, or even on his back,

when he is fatigued by lying on his right.” Miracle, supra,

page 246. .

A bill of rights. was thought by some to be vedentent,

and by others to be dangerous, for if the Corivention

adopted a list of ten, twelve or twenty articles, the courts

would later limit the rights retained and powers reserved

_by the people to those rights and_ en specifically

enumerated in the list.

The first Congress of the United Statés.on March 4,

1789, adopted a twelve-article bill of righfS ‘The next

to the last article became the Ninth Amend 4 t and the

15

last article became the Tenth Amendment. The first two

articles were never ratified, but the final ten articles be-

came a part of the Constitution‘ on December 15, 1791.

Ua.

The precise, reason why the last two articles. were in-

cluded in the list was to remove any. possibility that the.

courts. would later limit the rights and powers the people

enjoyed at common law to those rights and powers spe-

cifically enumerated in the list; otherwise, there would be

no reason whatsoever for the Ninth or Tenth Amendments.

The Attorney General, the Solicitor General, the State

of New York and the State of Maryland have asked this

Court to do precisely what the proponents of the Consti-

tution promised the Antifederalists would néver be done,

to make the Ninth and the Tenth Amendments .an empty

promise. The States of California and New Jersey have

already repealed the Ninth Amendment at the urging of

_modern text writers who have’ not- yet had the educa-:

tional experience of having their homes searched for

five hours. See Appendix C for an affidavit for search

warrant form used throughout the State of. Mississippi.

That form recognizes the “mere evidence” rule and has

led neither to confusion nor inconsistency in that State.

We take the Ninth and Tenth Amendments to mean

that all the rights the people enjoyed at common law '

were retained by the people, and all the powers the peo-

ple enjoyed at common law were reserved to the people.

The rights and powers which the people had at common

law -were “frozen” by, the Ninth and Tenth Amend-

ments. One of the rights retained by the people was

judicially determined by this Court in Boyd, Weeks,

Silverthorne and Gouled. That retained right was to

be free of searches | or seizures for “mere evidence.”

-16

The rule~at common law, frozen by the Ninth Amend- |

ment, was well stated 0 on page 15 of the brief for petitioner

in Warden: |

a |: requires that relevant evidence, | seaeapebly ob-

tained, be excluded if it cannot technically be classed

’ as a means or instrumentality of committing a crime,

the: fruits of a crime, or contraband.”

The writer of this petition resides in a State where the -

‘Fourteenth Amendment is regularly.denounced by the

elected public officials of that State. Those who do not

like the Fourteenth Amendment and those whagdo not

_ like the “mere-evidence” rule have a remedy, but it is

not with the courts. It is by constitutional amendment.

‘It is important that the people be assured that the fears

_ of certain signers of the Constitution, including Alexan-

der Hamilton of New York, James Wilson of Pennsy]-

vania, Roger Sherman of Connecticut and John Dickinson |

of Delaware, that the courts would limit the rights and

powers of the people to those specifically enumerated in

the first eight amendments, were ill founded, and that

the statute of limitations has not run on the promises

made to the Antifederalists by the — of the Con-

stitution.

/

/

2. Whether the trial court’s charge, when read asa

whole, sets forth an accurate statement of the law of entrap-

ment as applied to the facts of this case. |

_ It should be noted at the onset that there is no testi- .

‘mony in the record to show that the petitioner was ready

or willing to commit the offense charged, and the trial

court erred in giving any “propensity” charge to the jury.

- United States v. Collier, 313 F.2d 157, 159 (C.A. 7, 1963). .

Once having undertaken to give a “propensity” charge, -

the trial court had a duty to charge the jury correctly. In-

stead, the trial court charged (App. 336a). that there is no

17

ie; entrapment unless ‘dthe defendant had no previous dispo-

sition to violate the law” (Emphasis ours), and entrap- —

ment is not established) if the defendant “was ready and

willing to violate the law.” (Emphasis ours)

The popular name for the above type instruction is a

“Show nie” instruction. The instruction is highly mis-

leading and}derives its name from the following quota-

tion: “Shdw me a liar and I will show thee a thief.”

George Herbert, Jacula Prudentum (1640). George Her-

bert would have instructed the jury in this manner: “Show

me a man who will carry on an unlawful gambling busi-

ness in Tennessee and I will show thee a man who will use

_a facility in interstate commerce to facilitate the carrying

..on of such unlawful gambling business.”

The charge which would have been given by. paren

- Herbert and the charge given bythe trial court are, for

all practical purposes, identical. | |

_The charge as given might pass muster in a case ab-

sent evidence of any predisposition to violate state law,

but it will not wash in a case where there is ample evi-

dence of such predisposition.

The prejudice to the petitioner is apparent. There was

considerable uncontradicted proof that the petitioner, for

approximately three years prior to the date of his trial,

had been engaged in running and operating a gambling

business establishment in violation of several statutes of

the State of Tennessee, and, in fact, the indictment so

charged. Certainly, to a lay jury, such would seem to

constitute similar acts or crimes and would indicate to

the jury that the petitioner was ready and willing

to violate “the law.” Reading as a whole the charge given

_on the question of entrapment, it is clear that it was the

trial court’s understanding of the law to be that if the ,.

18

| petitioner were ready and willing to violate any law what-

Soever, then he could not claim entrapment, and the trial

court so charged the jury in very nearly those exact words. |

In the jails of every state in this Union are persons who

are convicted time after time for “being*drunk in a pub-

_lic place.” They violate “the law” every time they can

beg, borrow, steal or earn adequate funds with which to

_ intoxicate themselves. Under the charge here, those poor

devils could never successfully’ plead. entrapment to any

charge, because : “ny are “semay and willing to violate

the law:”

_ Ih Hansford v. United States, 303 Wa | 219, 221 (C.A.

D.C., 1962), the defendant was convicted of the sale, pos-_

session, and importation of narcotic drugs in violation of

Federal statutes. The trial judge instructed the jury that

‘where the defense is entrapment,

“the law says that if an otherwise innocent person,

not inclined to commit a criminal offense, is induced,

is led into, is enticed by a police officer to commit a

criminal offense, the prosecution can have no benefit

from it and he would be not guilty. Understand that

I-say an ‘otherwise innocent person’ who would not

'. have. committed the crime except for some ="

. ment, or inducement.”

‘The Court in Hansford, (303 F.2d at 222) further stated:

“The court did not explain to the jury, as here ex- ~

plained to counsel, that the court meant ‘A man who

would not have sold narcotics but: for the enticement.’

The jury could well believe ‘that the defense of en-

trapment was available only to an innocent man, that

is, a man who. had no criminal record, and was en-

ticed. Yet that is not the law. In Sherman v. United

States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, not-

withstanding two previous narcotics convictions the

Court held that Sherman had been entrapped with

| —— to the narcotics me on which he was tried.

19

“The reference of the court to an otherwise inno- |

cent man is understandable; for the opinions of. the

Supreme Court in both Sorrells and Sherman refer

' Several times to the need that the accused be an ‘in-

nocent’ man. Thus, ‘decoys are not permissible to

ensnare the innocent and law-abiding into the com-

mission of crime.’ Sorrells v. United States, supra,

287 U.S. at 445, 53 S.Ct. at 214. But a court opinion

' is not an instruction to a jury. In these opinions the

Supreme Court evidently meant by ‘innocent,’ in eon-

nection with entrapment, absence of a‘ predisposition

or state of mind which readily responds to the oppor-

tunity furnished by the officer or his agent to com-

mit the forbidden act for which the aneueee 3 is charged.

As explained in Sherman:

-* At the trial the factual issue 1 was whether the in- . |

_ former had convinced an otherwise unwilling person —

to commit a criminal act or whether petitioner was

already predisposed to commit the act and exhibited

‘only the natural hesitancy of one A Geman, with

the narcotics trade.’

“Sherman v. United States, supra, 356 US. at 371, 78

S.Ct. at 820. Or, as further stated by the. Court in

Sherman when quoting from Sorrells:

4 ‘Entrapment occurs only when the criminal con-

duct was “the product of the creative activity” of law-

enforcement officials.’

4

“356 U.S. at 372, 78 S.Ct. at 821. These statements

_ largely dispel the ambiguity that arises from an un-

' explained reference to an ‘innocent’ person. If the

term ‘innocent’ is to be used at all—it is preferable

to avoid its use altogether—it should be explained so

that the jury will understand that a ‘criminal record

does not disqualify an accused from defending on the

-ground of entrapment. A person is not entrapped —

when an officer merely presents him with the oppor-

tunity to commit an offense in order to detect crimi-'

20

nality rather than to instigate it. But readiness. or

predisposition is not established by evidence that the

person is not ‘innocent’ in that he has a criminal rec-

ord. Innocent in the context of entrapment means

that the defendant, would not have perpetrated the

crime for which he is presently charged but for the

enticement of the police official. The defendant, in

such circumstances, must be considered a previously

innocent person. A criminal record is relevant in

regard to a predisposition or propensity, but does not

preclude the defense of entrapment.”

The similarity. between the trial court’s charge in “this

case and the charge denounced in Hansford is apparent.

Each trial court informed the jury that the defense of

entrapment is based upon the policy of the law not to

- ensnare an innocent person into the commission of a crime

but if the defendant on trial was “inclined to commit a

criminal offense” or “was ready and willing to violate the

law,” the defense’ was not available to him. However, ©

the trial court in petitioner’s case. went even further and

said to the jury, in express language, that if petitioner is

' not an innocent person, or if petitioner were engaged in

similar activities or crimes, or was ready and willing to.

violate the law, that entrapment is lawful. The decision

of the Sixth Circuit in this case is. clearly in conflict with

. the District of Columbia Circuit’s Hansford decision. ©

"We are not here dealing with an instance where a po- .

lice officer or agent makes a misrepresentation concern-

ing the-identity of the purchaser of illegal narcotics as in

Lewis v. United States, 87 S.Ct. 424 (1966); or a situation

in which trial counsel explicitly conceded that the en-

trapment i issue was for the jury to resolve on conflicting

evidence, such as was involved in Osborn v. United States,

87.S.Ct. 429 (1966); or where the defendant had a predis-

SPREE LALA OE LLL ALE ONE Gy OIG ge are Nae

21

position to commit the offense charged, as in Sorrells v.

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

(1932).

Mr. Justice Stewart delivered the opinion of the Court

in Osborn. Footnote 10. of the majority opinion, which

appears at 87 S.Ct. 434, provides as follows: .

“The petitioner’strial counsel explicitly conceded

that the entrapment issue was forthe jury to resolve.”

Footnote 11 of the Osborn case provides, inter alia:

“Moreover, it is settled that when the defense of en-.

trapment is raised, evidence of prior conduct tending

to show the defendant’s predisposition to commit the

offense charged is admissible. See Sorrells v. United

States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed.

413.” (Emphasis ours)

_ Evidence. of prior conduct tending to show the defend- -

ant’s predisposition to commit other offenses was admis-

sible in this case, not to negate entrapment, but because

the proof of tne otner offenses was essential to the gov- ~

ernment’s case. The government in its brief before the

Court of Appeals, on page 15 thereof, stated: - *

“It was shown by proof that the appellant, often

ordering these gambling supplies with intent to oper-

ate the.gambling casino, ‘thereafter’ operated same in

violation of the gambling laws of the State of Tennes-

see, thus consummating the offense. Such proof was

not only, relevant and material, it was essential.”

' We have been unable to find a case in which the in-.

struction given by the trial court was challenged and the

instruction upheld. This is not to say that the charge given

by the trial court would be improper in a case where there - -

was no testimony in the record that the accused was guilty

of violating state law, and thus no possibility of mislead-

ing the jury, . s

?

-

m Perrematsanta 5 an acencesi on ean armcnnsnemrartons

22

In all of the cases cited in the opinion of the Court of

Appeals, there was no possibility that the jury could mis-

understand the trial court by the instruction that unlaw-

- ful entrapment. is not established if the defendant were

_ . ready and willing to violate “the law.” See Jordan v._

United States, 348 F.2d 433\(C.A. 10, 1965), where no ob-

jection was made to the charge and there was no evi-

. dence of any violation of state law; United States v. Thomp-

| son, 366 F.2d'167 (C.A. 6, 1966), where the defendants

were members of the County Council of McMinn County,

Tennessee, and there was no evidence of any prior viola-

tion of state law; United. States v. Littwin, 338 F.2d 141

(C.A. 6, 1964), which involved the bribery of an Internal

Revenue Agent, there was no objection made to the in-—

structions and there was no evidence of any prior viola-

tion of state law; United States v. Head, 353. F.2d 566 (C.A.

6, 1965), where the accused was charged with the illegal

possession of and an attempt to sell counterfeit money

and there was no evidence of any prior violation of state

law to mislead the jury; United States v. Cooper, 321 F.2d

456 (€.A. 6, 1963), where the accused was charged with

the sale and possession of narcotics, there was no record

of any prior violation of state law, and the Court of Ap-

peals, Sixth Circuit, distinguished Hansford on its facts;

United States v. Williams, 319 F.2d 479 (C.A. 6, 1963),

where the accused was Charged with the possession and.

illegal transfer of marihuana, and there was no testimony

in the record that the accused had any propensity to vio-

late state law; Lathem v. United States, 259 F.2d 393 (C.A.

5, 1958), where the accused was charged with sales of ©

‘morphine sulphate, and there was no evidence in the rec-

ord that\ the accused had any predisposition to commit.

crimes other than sales of drugs contrary to Federal law;

_Accadi v. United States, 257 F.2d 168 (C.A; 5, 1958), where

_ the accused was charged with a conspiracy to acquire and

OD EPRI BT ARE AEE PN TCI 2m

maMeenmcte

.transfer marihuana, \and fhere was no evidence of any

propensity to violate state law; and Robinson v. United

States, N6, 784, certiorari denied 87 S.Ct. 717. (1967),

facts and opinion, 366 F.2d 575 (C.A. 10, 1966), where .

the instruction given by the trial: court included “previ-

‘ous purpose or intent to commit the offense charged * * *.” —

The charge given by the trial court was erroneous, and

there is certainly more than a reasonable possibility that

ithe charge contributed to conviction. See Fahy v. State

of Connecticut, 375 U.S. 85, 84 S.Ct.\229, 11 L.Ed.2d 171.

(1963). Expressing the matter differently, the Court of

Appeals for the Sixth Circuit, and ‘no other reviewing

court, could declare that the erroneous charge was harm-

less beyond a reasonable doybt. Chapman v. et of Cali- |

fornia, 87 S.Ct. 824 (1967).

It was held in Bollenbach v. United States, 326 U.S. 607,

614, 66 S.Ct. 402, 90 girs. 350, 355 (1946):

“A charge. incall not’ be misleading. See Agnew

_ v. United States, 165 U.S. 36, 52, 41 L.Ed. 624, 630,.17

S.Ct. 235. Legal presumptions: involve subtle con-

ceptions to which not even judges always bring clear

understanding. See Thayer, Preliminary Treatise on >

Evidence (1878) cc 8 and 9; Wigmore, Evidence 3d Ed.

par. 2490-2540; Morgan, Some Observations Concern-

ing Presumptions (1931) 44 Harvard L. Rev. 906; Den- |

ning, Presumptions and Burdens (1945) 61 Law Quart.

Rev. 379. In view of the Government’s insistence that.

there is abundant evidence to indicate that Bollen-:

bach was implicated in the criminal enterprise from

the beginning, it may not amiss to remind that

the question is not whether guilt may be spelt out_of

a record, but whether guilt has been found by a jury:

according to the procedure and standards appropri-

ate for criminal trials in the federal courts.” .

|

a

~ It was held jin Morissette v. United States, 342 US. 246,

276, 72 S.Ct. 240, 256, 96 L.Ed. 288 (1952):

“Had the jury convicted on proper instructions it

would be the’ end of the matter. But juries are not

bound by what seems inescapable logic to judges.

They might have concluded that’ the heaps of .spent

casings left in the hinterland to rust away presented

an appearance of unwanted and abandoned junk, and ©

that lack of any conscious deprivation of property or

intentional injury was indicated by Morissette’s good

character, the openness of the taking, crushing and

transporting. of the casings, and the candor with.

which it was all admitted. They might have refused

to brand Morissette as ‘a thief. Had they done so,

that too would have been the end of the matter.” |

' The granting of the Special Requests of the Defendant,

‘Nos. 1, 2, 3 and 4 (App. 347a-350a) would. have cured

.the error of the trial court in instructing there was no

entrapment unless “the defendant had no previous dispo-

sition to violate the. law” and entrapment is not estab-

lished if the defendant “was ready and: willing to: violate

the law.” (App. '336a)

This Court held in. United Brotherhood of Corpenters v.

United States, 330 U.S. 395, 408, 67 S.Ct. 775, 91 L.Ed. 978,

985 (1946):

.“No matter how sak the evidence may be of an |

association’s or erganization’s participation through its

agents in the conspiracy, there must be a charge to

the. jury setting out.correctly the. limited liability

under Sec. 6 of such association or organization for

acts of its agents. For a judge may not-direct a ver-

dict of guilty no matter how conclusive the evidence.

There is no way of knowing here whether the | jury ’s

verdict was based on facts within the condemned in-

structions, note 19.above, or on actual authorization

or ratification of such Joan note 18.

Na

25

“% failure to charge correctly is not harmless, since

the verdict might have resulted from the incorrect |

instruction. We are of the opinion, therefore, that

the. judge should have: instructed the jury as to the

limitations upon the association’s liability for the acts

_ of its agents under Sec. 6. The error is aggravated

by the failure to give the correct — upon re-

quest.”

The Pomme of the special requests would have. pre-

sented the law of entrapment to the jury in ‘such a way -.

“as not to mislead the jury, and would have resulted in a:

verdict of not guilty on all six counts of the indictment. —

_ The Assistant ‘United States Attorney who argued this -

case in the trial court in his closing argument (App. 327a-

328a) anticipated and capitalized on the failure of the

_ trial court to grant the special requests. He argued “the

situation in Tipton County” to the jury rather than a

violation of the laws of the United States. The trial court’s °

charge as given, the trial court’s error in failing to grant

the special requests, and the remarks made: by the Assist- -

ant United States Attorney to the jury, taken as a’ whole,

left an indelible impression on the jury that it was its

function to enforce the gambling laws of the State of

Tennessee, and not to concern itself overmuch with the

question of whether petitioner was entrapped. The rec-

ord as a whole demonstrates that petitioner was thereby

deprived, of his liberty without due process of. law con-

trary to the Fifth. Amendment. :

3. Whether the. undisputed cnliiaaain of the prosecu-

tion’s witnesses establishes’ entrapment as a mafter of law.

_ The Court of Appeals appended a part of. the “cease

and desist agreement” to its opinion. Petitioner’s defense

of entrapment was not based upon the “cease and desist

agreement” executed by Stahl in September or October —

26.

of 1964, but on the oral instructions given. to Stahl in May

_ Of 1964. The implication was clear that the officials knew

\ Stahl would rely on their-advice and that Stahl knew, from

‘the size of the orders, that petitioner was an entrenched —

operator conducting an unlawful gambling business. There

was no conflicting evidence for the jury te pass on in this

case. Entrapment should have been determined by the

trial court-as a matter of law, prior te the introduction

. -of the agreement into evidence. _

The material oPal_ misrepresentations were relayed to

the petitioner via StahilMirrespective of the “cease and de-

sist agreement.” Stahl relied on what the government

agents, acting within their apparent authority, advised

y him, and the petitioner relied on that “same advice (App.

| 281a and wees oa

_ The Court of ones overlooked two cctenltig prece-

dents in its determination of this case. One is Cox v.

' “State of Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L-Ed.2d

487 (1965) and the other is Raley v. Ohio, 360 US. 423,

. 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959).

Petitioner submits that Cox and Raley, when read to-

gether, stand for this overlong proposition: If the un-

contradicted testimony shows that a state or the federal

government, by means of a lawfully designated agent hold- -

ing apparent authority, makes an erroneous administra-

tive determination touching a subject on which reasonable

Rgrsons might differ, to an accused, either directly or

_ -through a third party, that the doing of a specific act does

* not constitute an offense against that government; and the

~ accused, relying ‘on such erroneous advice, does the very

unlawful act he was advised he could do lawfully, then

such constitutes entrapment as a matter of law, and-a-

conviction for the doing of such act cannot stand.

27

' Two cases styled Cox v. State of Louisiana were de-

‘cided by this Court on January 18, 1965. Cox was ar-

‘rested and charged with four offenses under Louisiana

law—criminal conspiracy, disturbing the peace, obstruct-_

. ing public passages and picketing before a courthouse.

The first three offenses were disposed of in Cox v. State

_ of Louisiana, 379 U.S..536, 85 S.Ct. 453, 13 L.Ed.2d 471

(1965), which is not controlling here; however, the first

Cox case, disposing of the three offenses, contain most

_ of the relevant facts from which this Court determined

_ the second Coz ‘case, concerning the picketing before a

courthouse charge.

Police Chief Wingate White testified that he told Cox

that “‘he must confine” the demonstration “to the west

side of the street.” The officers said nothing to the other

1,999 demonstrators (379 U.S. at 543, » S. Ct. at 457).

The students. were then directed ds Cox to the west

sidewalk, across the street from the courthouse, 101 feet ©

from its steps: The students obtained their information .

from Cox only (379 US. at 543, 85 S.Ct. at 457).

This Court rejected Cox’s contention that the L6uisiana

statute was invalid on its face as an unjustified restric-

tion upon freedoms guaranteed by the Firss and Four-

teenth Amendments (379 U.S. at 560-566, 85 S.Ct. at 479-

_ 482).

‘This Court also rejected Cox’s contention that his con-

viction violated due process, on his theory there was no

evidence of intent to obstruct justice or influence any ju-

* dicial official. as required by the Statute (379 US. at 566

and 567, 85 S.Ct. at 482).

28

- This Court did find entrapment as a matter of law and

stated:

_ “* * * appellant was advised ‘that a . demonstration

at the place it was held would not be one ‘near’ the

courthouse wthin the terms of the statute.’ ~ (379 US.

at 571, 85 S.Ct. at 484) .

The. appellants in Raley were informed that they had a .

right to rely on the privilege against self-incrimination.

The o Supreme Court, however, held that the appel-

lants were presumed-to know the law of Ohio, and that

the Ohio immunity statute deprived them of the protec-

tion.of the privilege. This Court held (360 U.S. 425, 79

; S. Ct. 1260):

“We hold that in the circumstances of these cases,

the judgments of the Ohio Supreme Court affirming

the convictions violated the Due Process Clause of

the Fourteenth Amendment and must be reversed,

except as to one conviction, as to which we are equally

divided. After the Commission, speaking’ for the

. State, acted as it did, to sustain the Ohio Supreme

Court’s judgment would. be to sanction an indefensi-

ble sort of entrapment by the State—convicting a

citizen for exercising a privilege which:the State had

clearly told him was available to him. We agree

with that part of Judge Stewart’s dissenting opinion

in the Ohio Supreme Court in’ which he’ said: ‘since

the defendants were apprised by the commission at the

time they were testifying that they had a right to re-

fuse to answer questions which might incriminate

* them, they could not. possibly in following the ad-

monition of the commission be in contempt of it * * *.’”

At least one state court has recognized the proposition

that a conviction by “bureaucratic entrapment” is a dep-

rivation of due process of law. In People v. Markowitz,

18 N.Y.2d 953, 277 N.Y.S.2d 149 (1966), a defendant on a

number of oceadions had been told by the Department of

29

Markets that he did not need a license to sell scorecards

outside Yankee Stadium. He was convicted in the lower ;

court for doing the exact thing which he had been ad-

vised by officials holding apparent sxthority that he could

do lawfully. The Court held:

“Judgment reversed and the complaints dismissed.

Conviction under the peculiar facts presented in this -

' particular case constitutes a deprivation of due proc-. .

ess of law (N.Y. Const. Art. I, Section 6; U.S. Const.,

14th Amdt.; Cox v. State of Louisiana, 379 U.S. 559,

85 S.Ct.: 476, 13 L.Ed.2d 487).”

The witness Stahl did not know. whether Se dice;

poker chips and playing cards to an entrenched gambling |

operator carrying on an unlawful gambling business was

| violation of the law, just.as Reverend Cox did not know

ether he was picketing “near” the courthouse. The

officers in Chicago had no duty to advise Stahl, and the

officers in Baton Rouge had no duty.to advise Cox; how-

ever, having undertaken to advise them, the officers had

a duty not -to entrap them.

The only logical course of’ action for Stahl to follow

after the conference with Reagan and Glenville was the

action the record-clearly shows he followed, which was to ©

answer any. inquiries from entrenched - gambling ‘opera-

tors that it was legal for him to ship them dice, poker

chips and playing cards (App. 283a). To say that Glen-

ville and Reagan did not entrap Akins is tantamount to a

person shouting “Fire” in a crowded theater and explain-

ing later that he did not tell the people to trample each

' other. Stahl was just as much the agent of Glenville and

Ramsey as Cox was the agent of Chief White.

‘Chief White’s administrative interpretation of the word

“near” was made not to the demonstrators, but solely to

Cox. The students were directed by Cox, and not by the

30

officers, to the west sidewalk, across the street from the

courthouse. What would have been the action of this . ~

Court if all of. the demonstrators except Cox were ar-

rested? In that event, we would have a case in which

the governing-authority used Cox, just as the governing

. authority used: Stahl, as their unwilling agent to entrap

the remaining 1,999 demonstrators. Petitioner contends

that this Court would have reversed the convictions of

- the other 1,999 demonstrators just as surely as if Police

Chief Wingate White told each and every demonstrator

separately that the demonstration must be confined “to

the west side of the street.” (379 U.S. at Page 541, 85 S.Ct.

at page 457).

Under all of the circumstances, in the Cox case and in

this case, after the public officials acted. as they did, to

sustain either conviction “would be to sanction. an inde-

fensible sort of entrapment.”

Raley involved four appellants. Had all four of the

appellants been placed in one witness room; Mrs. Morgan

-was called first, she was informed by the Commission that

all four of the witnesses had a right to rely on the privilege

against self-incrimination; Mrs. Morgan completed her

testimony and retired to the same witness room; she in-

formed the other three witnesses that the position of the

Commission was that each had a right to rely on the privi-

lege against self-incrimination; Raley was called to testify;

he testified exactly as he did in the reported case; he was

hot specifically ordered to answer, but he was later prose-

cuted and convicted. Would the decision of this Court

_ have been different merely because the Commission used

- Mrs. Morgan as their unwilling agent to transmit the

message to the remaining thrge witnesses? |

Petitioner contends that Stahl and Akins should no more

be “presumed to know the law” than should the witnesses

~ natn emreeniecetsns

@

31

in Raley. All of the evidence shows they did not know

the law; otherwise, their telephone conversation would |

' have had an entirely different ‘result. |

There is another compelling reason why it should be

held that the trial court erred in holding under the facts

that there was no entrapment as.a matter of law. As in

Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2

L.Ed;2d 848 (1958), the trial court did not choose ‘be-

tween conflicting witnesses, nor judge the credibility of .

the witnesses. All of the witnesses testified to the same

set of facts. Aside from calling Sherman C. Magidson,

the attorney forthe witness Stahl, the defense called no

witnesses. The conclusion of the trial court should have

been reached from the undisputed testimony of the prose-

- Cution’s witnesses, none of whom testified that the appel-

lant had any predisposition to commit the offense charged.

In Sherman, petitioner was convicted under an in- -

dictment charging three sales of narcotics (356 U.S. 370,

78 S.Ct. 820). There was no evidence that Sherman him-

self was in the trade (356 U.S. 375, 78 S.Ct. 822). The

Court in Sherman held (356 U.S. at pages 375 and 376, 78

S.Ct. at page 822):

“The Goyernment’s additional evidence in the sec-

_ ond trial to show that petitioner was ready and will-

ing to sell narcotics should the opportunity present

itself was petitioner’s record of two past narcotics

convictions. In 1942 petitioner,.was convicted of il-

legally selling narcotics; in 1946 he was convicted of

illegally possessing them. However, a nine-year-old

sales conviction and a five-year-old possession convic-

’ tion are insufficient to prove petitioner had a readi-

ness to sell narcotics at the time-Kalchinian approached

-him, particularly when we must .assume: from the

record he was dita to overcome the narcoties habit

. at the time.”

32

We submit that under the facts of this case, in light ‘of

Cox, Raley, Sherman and Markowitz, there was entrap-

ment here as a matter of law, and appellant’s motion for

acquittal should have been granted as to all of the counts

in the. en.

CONCLUSION

- Petitioner respectfully submits that a review of the rec- —

ord would indicate that this petition for writ of certiorari

should, be granted, and that the judgment of the Circuit

Court of Appeals for the Sixth Circuit affirming the judg-

ment of the United States District Court for the Western

District. of Tennessee, Western Division, should be set

aside, and the judgment of conviction reversed. __

Respectfully submitted,

' W. S. Moore !

200 Petroleum Building

Jackson, Mississippi 39201

Counsel for Petitioner —

.

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