Opposition Brief — Green v. United States

6

In mid-February 1968, Pappas returned to Las

Vegas from Mexico and asked petitioner whére Jolin-

- son Was. Petitioner said that Johnson had “run off”

aiid had not: been heard from, that petitioner and

Pappas had been “burnt again,” and that they were

just going to-have to find anothér pilot (2 Tr. 309).

Petitioner’ then called codefendant Bobby Bates, who

agreed to tly the previously purchased marhiamt up

from Mexico (2 Tr. 310-312). On February 20, 1968,

“petitioner, Pappas, and Smith discussed details of the

project with Bates (2 Tr.\812-315, 320, 322-323). -

On F ebruary 24, 1968, following elaborate prepara |

tions in which petitioner took part (2 Tr. 324-331);

Bates ‘and Smith flew in a rented airplane frem ‘an

isolated. dirt airstrip near Parker Lake, Arizona, to

Cuhiacan, where the marihu: ana bought, hy Pappas

was loaded ito’ the. cratt 2 Tr. ‘33; 335). Manuel’

told. Smith that-.’it was going to be a short load”?

because Pappas had been several Tindred dollars

short in his’ payment, biit that if Papipas would come

back and pay the balance he would-let the ‘full 300

kilos” go. According to Smith: “*T told Manuel if he.

[ Pappas | wants to come back and pay: vou, but this

is my last trip: that. Mr. Pappas is taking over, as we

~hiad agreed prior to’ this.” Manuel apparently then

decided to permit ‘the full 300- kilogram shipment to

be delivered. (2 Tr. 333-334). Bates and Smith then

flew with the neirihuana to Rarken Lake, where they

were arrested by agents of. the’ Bureau of Customs:

on landing. ‘During. the Hight Smith was at the con-

trols’ until the plane reached flight altitude, after

me i

which Bates took over and piloted the craft the rest

of the way (2 Tr. 335-336). Pee:

After Bates and Smith had been ‘booked’ at

| Nogales, Arizona, Bates. (wlio in, the meantime had

also agreed to cooperate with the agents) flew wath

Smith anda Customs agent to Boulder City, Nevada.

F rom there Bates and ‘Smith, alone, followed by the

Customs: agents in another aircraft, flew the. plane

carrying the marihuana to North Las Vegas-.Air Ter-

minal. Smith there called Pappas and told him that

he and Bates had landed. Fifteen minutes later peti-

tioner and’ Pappas. arrived in petitioner’s automobile

and were arrested after they had commenced unload-

ing the marihuana from the airplane into the car

_ (1. Tr. 23-26, 31; 2 Tr. 336-340; 3 Tr. 471-473, -479-

483). 2s

2. After resting, its case, the ‘government, noting

that defense counsel might hive raised the issue of en-

tr apnient by questions asked of government witnesses

on cross-examination, sought leave to reopen its case .

for the purpose of offering evidence with respect to

petitioner’s:and Pappas’ predisposition to, commit of-

fenses of the type for which they were on trial (3 Tr

504; 506). Following an offer of -proof by the gov;

ernment (3 Tr. 506-507), the court requested the at-

torneys for petitioner and Pappas to state whether

their clients proposed to rely on entrapment as.a de-.

fense (3 Tr. 544-546). Without objection, the attor- -

neys said they did and, in response to further inquiry

by the court, advised that if the government had

relevant evidence they preferred this to be presented

_before the defense presented its case (3 Tr. 548-549).

8

Upon being permitted to reopen its case, the govern-

nent introduced evidence showing that for a period of

five or six months preceding the events invelved here.

Smith had smuggled marihuana for petitioner, Pap-

pas, and otliers (3 Tr. 901-578) ; that petitioner and

Pappas, while Smith avas in jail Dumediately prior to

the offenses invelved here, had) sought to” induce

Smith's wife, a native of Mexico, to assist them in

snuggling marihuana from Mexico in exchange for

their arranging to secure Smith's release on bail (3 -

Tr: 580-584); and that Customs Agent Diaz, the offi-

cer in charge of the investigation that led: to. the

present prosecution, had been advised by informants

other than Smith that petitioner and. Pappas were en-

gaged in marihuana smugeling (3 Tr. 593-599).

Both Pappas and petitioner thereafter took the

stand in their own defense. Pappas testified (in sub-

stance) that Smith had entrapped him into participat-—

ing in the in¢riminating activities (3 Tr. 621-654).

Petitioner's defense was that -he was entirely inne-

cent. He: stated that all of his activities, about which

the prosecution's witnesses had testified, had been per-

formed simply as favers to Pappas and that he was

the immocent victim of cinumstantial evidence (3 Tr.

695-680). The issue of entrapment was stbinitted to

the jury. (4 Tr. 814-815).

ARGUMEI'T

.

‘.

1. Petitioner contends the evidence is insufficient to

sustain his conviction (Pet, 33-88, 53-56). But as the

recital indicates, the evidence was not simply suffi-

cient, but overwhelming. sie respeet to the count-l

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charge that he conspired to smuggle the shipment. of

marihuana into the United States, the government's

evidence established that petitioner, far from being

an innocent bystander, was, with Pappas, the central’

figure in the conspiracy. With respect to the count-2

charge that petitioner knowingly received, concealed,

cand facilitated the trafisportation and concealment of

the marihuana after its unlawful importation, the evi-

dence was like wise substantial. That charge Was oa de

on petitioner's partic ipation in the unloading of the.

marihuana fron, the plane to his automobile ‘at the

North Las Vegas Air Terminal. following its unlaw-

ful importation, It is immaterial that Bates, who to-

eether with Smith had flown the marihnana into the

United States, had been-arrested prior to the events

at the Air, Terminal and was cooperating with the

government agents at that time. While the conspiracy

had then come to an end so far as Bates was con-

cerned, that did not-affect the character ef the mari-

huatia as unlawfully, imported contraband smugeled

with petitioner’s knowledge. Cf. Pederson v. United

Slates, 392 F, 2d 41, 43-44 (CLA. 9): United States v.

Gould, 419 F. 2d 825, 827 (C.A. 9): Haynes v. United

States, 319 F. 2d 620 (C.A., 5), certiorari denied, 375

U.S. 885. In any event, since petitioner's sentence on

count 2 runs concurrently with his sentence on the

conspiracy count, there is no need for further review

of the count-2 conviction. Cf. Be ntowv. Mar yland, 39)

U.S. 784, 791; Hirabayashi v. United States, 320 US.

ne 7 7

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2. As. to pefitioner’s contention that he was en-

trapped as a matter of law (Pet. 38-45), there was

no evidence that informant Smith-lured or enticed

petitioner into committing an offense he would other-

wise not have attempted—the essence of the defense

of entrapment (Lopez v. United States, 373 U.S. 427,

434-436; Sherman ve United States, 356 U.S. 369,

376: Masciale v. United States, 356° U.S. 386; Sor-

rolls vi United States, 287 U.S. 435, 442)" Tt is not

entrapment for-a government agent or informant

merely to “afford Opportunities ovr facilities for the

commission” of an offense. Sorvells vi.U ited States,

supra, 287 TLS. at 441s Sherman ve United States,

supra, 396 US. at 372; Lopexyv. Enited States, supra,

Bid LS. at 456. The anforfnant here’ did no more.’

“The government is entitled to rebut a defense of

entrapment by offering. evidence of. the accused's -

eriminal predisposition to commit offenses of the type

Charged, including evidence of priory convictions for

such offenses, Sherman v. Cited States, 356 US. 369,

379-376, Sueh. predisposition evidence, absent some

indication that the defense proposes to assert the des

fense of ehtrapment, would of course not normally be

Indeed, petitioner himself, in testifying; made no such claim.

‘The record does not support the allegation, on which peti-

toner parti@ukirly-relies (Pet. 18, 38,°43), that Smith's “eredit

with Manuel” was “utilized by the government” In the frans- | -

action, Pappas g:itve Manuel the $2,000 principal cash payment ;

while the record is unclear as ‘to precisely what agreement was

réached between Mannel and Smith at their final meeting,

where they discussed financial arrangements for the unpaid

portion of ‘the full) 300-kilogram toad, it appears that. any

“eredit™ that may have been involved was extended by Manuel

to Pappas and not Smith (supra, p. 6).

“}1

admissible. But here, as government counsel noted in

his request for leave to reopen, defense counsel had

‘indicated that they might urge the defense of entrap-

ment. The court, upon: the government's motion, rece.

ognized the problem of reconciling -the defendants’

right to raise the ‘issue of entrapment ‘without testify-

ing and the government’s right to counter by offering

predisposition evidence. The court resolved the prob--

lem by requiring each defendant, through his attor-

ney, to state whether he elected to rely on entrapment.

There was no objection to the procedure and the attor-

_neys for both petitioner and Pappas said, in response to

the court’s further i inquiry, that they preferred the gov-.

ermment’s predisposition e vidence to be presented before.

the defense presented its case.

3. On the occasions of his visits (at his hosts’ ie

vitation) to the Las Vegas Apartment in which peti-

tioner and Pappas resided, Smith had concealed on

his person a transmitting device by which goverment.

agents stationed in another pazt of the building re-

corded the conversations that occurred in ‘the apart-

ment (2 Tr. 386-387, 398-399; 3 Tr. 440-441; 4 Tr.

~ 683-691).° In addition, through a “suction cup with a

recorder on it,’ ’ attached toa telephone handset lo-

cated in a Las Vegas hotel room that Spith occupied,

‘the agents were able to record, with Smith’s knowledge.

* The agents also once recorded, on a portable tape recorder, a

conversation between Smith, petitioner, Pappas, a Bates in

a restaurant located at a Las Vegas: golf course: (3° Tr. 490

493). Although thie record is nc lear on the point, es making

of this recording was apparently also accomplished by means

of a transmifting device atts ihed to Smith’ S person,

‘i

Sain We

and consent, telephone ealls received bv Smith from,

and placed by Smith to, the apartment of petitioner

and Pappas (2 Tr. 384-385; 3 Tr. 441-442, 447)." Prior

to trial; transcripts of the recorded conversations were

made a¥ailable to the defense by/the gevernment (Pet.

d7). At trial, ‘no recor ding was fe red in evidence by

the gove mment as part of its dane in chief, but after

petitioner and Pappas had testified in their own he-

half and the defense had rested, the government

sought to introduce certain of the recordings in re-

buttal (4 Tr. 682-694). Viewing these as possibly prej-

udicial to codefendants who had chosei net to testify

(and as to whom the recordings were consequently not

admissible for rebuttal,purposes), the court declined

its discretion to admit the recordings (4 Tr. 697).

As a‘consequence, no recording was heard by the jury.

Petitioner contends the government acted unlaw-

fully in recording the conversations and that although

* Whether there were any such conversations does not, how-

ever, clearly appear. ee : ne

In- addition, the agents once installed’ a monitoring deyice

in «a motel room they had rented (at a Ifoliday Inn in Los

Angeles) and to which Sniith ‘and -Pappas went .on the oc-

easion of their February 1968 consult: ation with the prospective

pilot Johnson (supra, pe 4). Through a recording device

in an adjacent room, eal by the agents, the agents were

able -to record the conversation between Smith, Pappas, and

Johnson, This monitoring was also accomplished with . the:

knowledge and consent of Smith (2 Tr. 258-290, 375-580; 3

Tr. 433-455). Petitioner was not present on this: peeasion and

sO Was NOt at party to the conversation. :

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no recording was introduced: into evidence, he was

nevertheless improperly prejudiced by the very pres-

ence of the ‘tapes and recording devices in the court-

room and ‘by the: fact that the existence of the -

recordings came to the attention of the. jury through

interrogation of witnesses and otherwise (Pet. 26-31,

56-62 ). However, it was through cross-ex amination of

Smith by defense counsel (the attorney for Isbell,

but without objection by any other attorney.) that the

jury first became aware that the recordings in question

had been made (2 ‘Fr. 378-381, 384-387, 398-399).7

United States y. White, 405 F. 24.838 (C.A. 7),

certiorari granted, 394 U.S. 957, restored to calendar

for rearguinent, 396 U.S. 1035, cannot affect peti-

tioner’s case; there the agents te stified concerning the |

contents of conversations overheard through an. clee-

tronic listening device concealed on an informant. How-

ever, in this. case there was no such testimony and

whether 1 ecording the conversation was, in itself, per-

missible, see Lopez v. United States , 313 U.S, 427, 437-

440; Rathbunv.U nited States, 355 US. 107, 110, is not at

issue because the contents of the recordings were not

made known to the jury.. Thus; thei re 1S No occasion.

Tor the Court to defer disposition oF this petition,

* Since the government made transcripts of the tapes available to

defense counsel prior to trial and since the cireumstances surround-

ing the monitoring were made known there is plainly no oceasion.

. to remand for a district court hearing pursuant to the pro:

cedure prescribed in Alderman v. Unite d States, 394 U.Sy 165.

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CONCLUSION

For the reasons stated it is respectfully submitted

that the petition fora writ of certiorari should be

denied.” }

Mae Erwin N.: Griswors,

ee ah aa Solicitor General.

: Witt Wiison, he

_° Assistant Attorney General.

a PHiuip R. Monanay,

, ear go », Attorney.

OcToBER 1970. - . 3

he

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US. GOVERNMENT iamiaee OFFICE: 1970

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