Petition for Writ of Certiorari — Haller v. United States

TABLE OF CONTENTS |

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PIE o cinccedddecensesoneeoneceesaiuenant 2

Questions Presented for Review.................- 2

Constitutional Provisions Involved................ 3

Cr SE os cco cncccenuececnenan 3

Reasons for Granting the Writ.................. 5

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Appendix B ........00..ecccecceecccecceeceeeees 3a

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INDEX TO AUTHORITIES E

Billingsley v United States, 274 F 86 (1921).... 6

Carlton v United States, 198 F2d 795, 798 (1952) :

Etting v Bank of the United States, 24 US :

[Wheat] 59, 78, 6 L Ed 419, 423 (1826)...... 6 3

Hansford v United States, 303 F2d 219, 224-226 e

(1962)... cece eee ceeeececeececeueeceeeues 7,10

Heath v United States, 169 F2d 1007, 1010 (1948) 5)

Hill v United States, 328 F2d 988 (1964)........

Kadis v United States, 373 F2d 370, 373 (1967) 5,7

Kivette v United States, 230 F2d 749, 754 (1956) 5)

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Mattson v United States, 7 F2d 427 1925)...... 6,7

McCray v Illinois, 386 US 300 (1967)............ 9,10

McMillan v United States, 363 F2d 165 (1966).... 8

Neill v United States, 225 F2d 174, 178-180 (1955) 6

Pulido v United States, 425 F2d 1391, 1394 (1970), 7

Roviaro v United States, 353 US 53 (1957)...... 9,10

Rocha v United States, 401 F2d cert. den. 393 US

EE 4c. o ca iadnnbaeadeas keene tureese 10

Rugendorf v United States, 376 US 528 (1964) 9

Schacht v United States, 398 US 58 (1970)...... 11

Sorrells v United States, 287 US 434, 451 (1932) 8

Taglianetti v United States, 394 US 316 (1969)... 11

Trice v United States, 211 F2d 513, 516 (1954).... 3,7

United States v Abdallah, 149 F2d 219, 222...... 5

United States v Catanzaro, 407 F2d 998, 1001

SEE ‘dvccaviuapeaendedieteisosesinweesces 5, 7,8

United States v Collier, 313 F2d 157, 159-160

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United States v DeVore, 432 F2d 1069, 1071...... 4)

United States v Johnson, 439 F2d 882 (1971).... 8

United States v Johnston, 426 F2d 112 (1970).... 7

United States v Prieto-Olivas, 419 'F2d 149, 151

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United States v Robinson, 446 F2d 562 (1971)

United States v Russell — US —; 93 S Ct 1637

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SPOOR: aS RAP CO

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Waker v United States, 344 ‘F2d 795, 797 (1965) 6,7 :

Washington v United States, 275 F2d 687, 690

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Whiting v United States, 321 F2d 72, 76-77 (1963) 5,7

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Other Authorities:

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Webster’s New Dictionary of Synonyms (1968) 430 7

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No.

SANDRA HALLER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Defendant.

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PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

———

Sandra Haller prays that a Writ of Certiorari issue to

review the Judgment of the United States Court of Ap-

peals for the Fifth Circuit entered in this cause on April

25, 1973.

OPINIONS BELOW

The District Judge did not render an Opinion. The

Opinion of the Court of Appeals is reported at 477 F2d

453. It is printed as Appendix A, infra.

JURISDICTION

The Judgment of the Court of Appeals was entered on

April 25, 1973. (Appendix B, infra). A timely Petition

for Rehearing was denied on May 31, 1971 (Appendix C,

infra). Jurisdiction is conferred upon this Court by 28

USC 1254. This Petition is out of time as explained in the

Reasons For Granting The Writ.

QUESTIONS PRESENTED FOR REVIEW

I.

If a Defendant in a Federal criminal prosecution raises

the defense of entrapment may the government show that

he had a prior disposition to commit crime by introduc-

ing hearsay tending to prove the commission of other of-

fenses by the Defendant and the Defendant’s bad reputa-

tion in the community?

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If a government agent is allowed to testify as to state-

ments made to him by informers concerning past offenses

by the Defendant, is the Defendant, on demand at trial,

entitled to the names of the persons who were the source

of the hearsay?

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CONSTITUTIONAL PROVISIONS INVOLVED

The United States Constitution, Amendment 5, provides

in part:

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

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

Amendment 6 provides in part:

In all criminal prosecutions, the accused shall

enjoy the right .. . to be confronted with the wit-

nesses against him;...

STATEMENT OF THE CASE

At her trial for possession of heroin with intent to dis-

tribute it,’ Petitioner raised the issue of entrapment by

cross-examination of the agent and by her own testimony.

Petitioner was a 21 year old heroin addict. She had

never before been arrested. Separated from her husband,

she and her small daughter were living with a man she

had known for about a month.

Petitioner delivered 2.3 grams of heroin to a BNDD?

agent for Fifty Dollars. The agent had been introduced to

her by an informer.

According to Petitioner, she was told that the agent’s

wife was an addict badly in need of heroin. ‘‘Because I

was a heroin addict, I know what it is like to be sick and

I felt sorry for her”. Petitioner also testified that she had

121 USC 841.

? Federal Bureau of Narcotics and Dangerous Drugs.

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never sold narcotics before and her only dealings in it

were purchases for her personal use.

In rebuttal, the government called a local police officer

who testified over objection:

An informant or several informants have given

my department and me in particular information

concerning Sandra Haller and the gentleman she

is living with .. . I was approached and told that

heroin was being dealt from the apartment during

the day and night, at all hours of the day and night;

a lot of traffic in and out of the apartment, both

black and white people . . . the Ft. Lauderdale Po-

lice Department informed me that their informant

had also stated that Haller and Ball were both

dealing in heroin from the apartment. From our

own police department and records clerk who lived

very close to the Hallers and Ball also advised me

that the neighborhood was buzzing with rumors and

people talking about the apartment.

Petitioner’s counsel asked that the local police officer

identify the informants who gave information concerning

3 Petitioner. The police officer asserted that he believed the

; safety of the informants would be endangered if their

identity was disclosed and consequently the Court de-

clined to require him to name them.

The case was submitted to the jury under instructions

which were not challenged in the Court of Ap eti-

tioner was convicted and sentenced forthwith term

of three years in prison.

REASONS FOR GRANTING THE WRIT

In United States v Russell....US....; 93 S Ct 1637 °

(1973), this Court re-examined the rationale of the defense

of entrapment. This Petition does not ask the Court to re-

travel that ground. On the contrary, the conclusion there

marks the origin of our issue.

Thus, the thrust of the entrapment defense was

held to focus on the intent or predisposition of the

defendant to commit the crime. 93 S Ct at 1641.

Whether the focus is broad enough to include the pro-

able cause with which the officers acted in testing the de-

fendant’s predisposition to crime has not been a matter

of agreement among the Circuits. In the First,’ Second,‘

Third,’ Fourth,® and Fifth’ Circuits probable cause need

not be shown to justify the actions of the officers in offer-

ing a defendant an opportunity to commit a crime. To

the contrary, the Ninth® and Tenth’ Circuits hold that

once entrapment is an issue the government must show

that the officers had reasonable grounds for believing that

the accused was engaged in criminal activity.

8 Whiting v United States, 321 F2d 72, 76-77 (1963); Kadis v

United States, 373 F2d 370, 373 (1967).

* United States v Abdallah, 149 F2d 219, 222, fn 1.

5 United States v Catanzaro, 407 F2d 998, 1001 (1969).

® United States v DeVore, 423 F2 d 1069, 1071.

7 Kivette v United States, 230 F2d 749, 754 (1956), United States

v Prieto-Olivas, 419 F2d, 149, 151 (1969).

® Carlton v United States, 198 F2d 795, 798 (1952); Trice v United

States, 211 F2d 513, 516 (1954).

* Heath v United States, 169 F2d 1007, 1010 (1948).

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In the Fighth Circuit probable cause need not be shown

but may be admissible on the question of the predisposi-

tion of the Defendant.’

If resolution of the foregoing conflict were all this Peti-

tion seeks, we might be hard put to justify intrusion upon

this Court’s busy schedule especially since the Court still

remains so closely divided on the rationale of the defense

of entrapment.’ But the conflict runs much deeper.

The basic issue of entrapment is the predisposition of

the defendant rather than the probable cause of the oflicers

to act. The First Cireuit has been extremely careful in

keeping the two concepts separate,

|The Court] charged the jury that the proseeu-

tion could establish the defendant's predisposition

by showing that the agent knew that he was predis-

posed to commit the erime, either from ‘personal

knowledge or from information from an established

authority that is to be believed’. This was either

a total failure to charge on the more basie issue of

predisposition as distinguished from probable

cause, or a charge that on this basic issue hearsay

could be considered.

Waker v United States, 344 F2d 795, 797 (1965).

Solicitation to connnit a crime does not of itself

involve constitutional rights, and it is not eompar-

able to the arrest of person or to the invasion of

premises. Furthermore, if the existenee of probable

w Neill v United States, 225 F2d 174, 178-180 (1955). [But com-

pare Mattson v United States, 7 F2d 427 (1925). This may also be

the Sixth Circuit rule. Billingsley v United States, 274 F 86 (1921).

11“No attempt will be made to analyze [the cases] or to decide

on their application to the case before us, because the judges are divided

respecting it. Consequently, the principles of law which have been

argued cannot be settled . . .” Etting v Bank of the United States,

24 US [11 Wheat.] 59, 78, 6 L Ed 419, 423 (1826).

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cause, normally shown by hearsay evidence, is to

determine who may and who may not be solicited,

a defendant’s exposure to temptation may depend

upon circumstances over which he has no control,

and for which he was in no way responsible.

Whiting v United States, 321 F2d 72, 76 (1963).

Only two Cireuits, the Fifth’? and Ninth," allow uneor-

roborated hearsay and “reputation” testimony to estab-

lish the defendant's predisposition.

The First," Third,"* probably the Seventh’? and Kighth

Cireuits," do not allow such testimony.

The District of Columbia has its own rule that on the

issue of predisposition of the defendant, prior offenses

eannot be testified to even by an eye witness unless there

is substantial corroboration.”

"The opinion below, Appendix A, infra; Hill » United States, 328 :

F2d 988 (1964); United States v Robinson, 446 F2d 562 (1971). In the 7

latter case, the Court indicated that the hearsay also bore on the ques- q

tion of probable cause. To the same effect see Washington v United

States, 275 F2d 687, 690 (CA 5 1960).

"Pulido v United States, 425 F2d 1391, 1394 (1970). Here, the

Court misread its earlier holding in Trice, supra, fn 8 that hearsay

was admissible to prove the probable cause of the officers.

IE PONS OLOGY,

'* The Court below describes the issue as being the “prior disposi-

tion” of the defendant rather than his predisposition. This is prob-

ably careless writing rather than expression of a new concept. Pre-

disposition refers to a current state of mind or predilection. Uf. Web-

ster’s New Dictionary Of Synonyms (1968) 430, which discriminates

incline, bias, dispose and predispose. :

Whiting, fn 3, supra; Kadis, fn 3, supra; and Waker, supra, p. 6.

16 Catanzaro, fn 5, supra.

%* United States v Coliier, 313 F2d 157, 159-160 (1963) [Dictum].

Cf United States v Johnston, 426 F2d 112 (1970) where the Seventh

Cireuit follows the Ihstrict of Columbia rule.

18 Cf Mattson v United States, 7 F2d 427 (1925).

1® Hansford v United States, 303 F2d 219, 224-226 (1962).

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Hearsay is usually admitted on the issue of probable

cause. It is hardly necessary to cite the search warrant

eases and the search-following-arrest cases of this Court.

But the hearsay is sifted and evaluated by a judicial offi-

cer rather than a jury. Although the judicial officer is en-

gaging in a fact-finding function, he is not deciding the

ultimate question, the guilt or innocence of the defendant.

He is acting before trial on a motion to suppress or in is-

suing a warrant.

If we allow a jury to determine probable cause based

upon hearsay, there is a grave danger that the jury will

improperly consider the hearsay in determining guilt.

Even the Fifth Cireuit recognizes this when its attention

is not diverted by the entrapment issue. United States v

Johnson, 439 F2d 882 (1971) ;* McMillan v United States,

363 F2d 165 (1966).

One stark conflict stands out in the confusion of opin-

ions we have cited. For whatever reason assigned, in the

Fifth, Ninth and Tenth Circuits, if a defendant interposes

the defense of entrapment, he gives the government the

right in rebuttal to attack the defendant with hearsay,

rumor and street gossip to show that the defendant is a

bad person or has committed crimes in the past for which

he has not been brought to justice. On the contrary, in the

First, Third, Seventh, Eighth and District of Columbia

Circuits such testimony is inadmissible. The conflict re-

lates not to the scope of the inquiry but the quality of the

evidence. Can a ‘‘searching inquiry’ be based upon

rumor and street gossip?

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20 Citing and relying upon the Third Circuit decision in Catanzaro,

supra, which the Fifth Circuit refuses to follow in entrapment cases.

21, . . if the defendant seeks acquittal by reason of entrapment,

he cannot complain of an appropriate and searching inquiry into his

own conduct and predisposition. . . . Sorrells v United States, 287 US

434, 451(1932).

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This is the conflict which should be resolved in this

Court.

Il.

Rugendorf v United States, 376 US 528 (1964) held that

the government could withhold the identity of an informer

who furnished the information to obtain the search war-

rant. The defendant there did not assert that the identity

of the informer was necessary to defend himself at trial

on the merits. McCray v Illinois, 386 US 300 (1967) dealt

with nondisclosure of informants at a preliminary hear-

ing to determine probable cause for arrest and search. It

was decided under the Fourteenth Amendment. Roviaro

v United States, 353 US 53 (1957) held that an accused

was entitled to the name of an informer who witnessed

the crime charged in the indictment.

None of these cases precisely covers the fact situation

which we tender to the Court. The city police officer

said that the defendant’s reputation and the reputation

of the apartment in which she lived for being a center

of narcotics activity was based upon statements made by

four unidentified informants. It was utterly impossible

to cross-examine the officer as to either the source of the

information or its contents and accuracy. In effect, in vio-

lation of the confrontation clause, defendant had her guilt

turn upon the testimony of four nameless and faceless

witnesses.”?

22 At trial defense counsel stated:

My client has categorically stood upon this stand and denied

that she was involved in the sale of narcotic drugs and for her

now to be impaled upon the testimony of this officer and not to be

permitted to seek out these people to try to ascertain the truth-

fulness of the testimony or exactly how it came about would be

denying to her a fair trial and would also be denying to her an

opportunity to seek out those who are indirectly her accusers, and

they are depriving her of her Sixth Amendment Rights [Trial

transcript §6].

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The rule of the Fifth Circuit is contained in Rocha v

United States, 401 F2d 529, cert. den. 393 US 1103 (1968).

There, under a similar fact situation, the Court held:

The informer who gave this report to the agent

was not a witness to the alleged offense as in

[Roviaro]. The Appellant’s situation more nearly

resembles that presented in [McCray] in which it

was held that the identity of the informer did not

have to be disclosed on an issue of probable cause.

Since the issue of probable cause in McCray was being

determined in a pre-trial hearing and the jury in no way

was getting the information contained in the hearsay

statements, it seems clear that McCray has no applica-

tion. Here, of course, the jury heard the city detective

relate the hearsay statements which were to be consid-

ered by them in determining whether the defendant was

predisposed to commit the crime charged in the indictment.

The ruling below conflicts with the District of Colum-

bia rule that if evidence of other offenses is going to be in-

troduced to show the defendant’s predisposition to crime,

such evidence must be strongly corroborated. Hansford

v United States, 303 F2d 219.

CONCLUSION

Petitioner’s present counsel was not retained until July

26, 1973, and then only in connection with a matter un-

related to this Petition. His first opportunity to examine

the file was on July 27, 1973. Believing that the issues

presented by this record are important enough for review

by the Supreme Court, counsel moved with all dispatch

to prepare this Petition. It will be filed in typewritten form

on August 2, 1973, along with the docketing fee and the

printed Petition will be filed on Monday, August 6th, 1973.

Pepe earner nrc erseenrss cepa ay egret wr oranasnereen ices

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Although the Petition is out of time by approximately

five weeks, the court does have the jurisdiction to con-

sider it. Taglianetti v United States, 394 US 316 (1969);

Schacht v United States, 398 US 58 (1970) [a delay of

101 days in filing the Petition].

The Petition tenders to the Court two closely related

questions which have never been considered by the Court

and upon which there are considerable diverse views in

the Courts below. The Petition for Certiorari should be ;

granted to resolve the conflict.

VARON, STAHL and KAY, P.A.

and PHILIP A. GILLIS

By: Philip A. Gillis, Esq.

Attorneys for Petitioner

Sth floor

American Title Building

Detroit, Michigan 48226

968-8210

LN PTEE ELF ELE L LH RAGES

Dated: August 1, 1973.

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APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-2734

UNITED STATES OF AMERICA,

; Plaintiff-Appellee, — :

versus

EDDIE BROOKS, WILLIE LUMDY f

and SANDRA HALLER,

Defendants- Appellants.

Appeals from the United States District Court for the

Southern District of Florida

(April 25, 1973)

Before BROWN, Chief Judge, WISDOM and

AINSWORTH, Circuit Judges.

PER CURIAM: Eddie Brooks, Willie Lumdy, and San-

dra Haller appeal from their conviction for possession

and distribution of a narcotic controlled drug, heroin, in

violation of 21 U.S.C. § 841. We affirm.

The appellants raise several contentions. Appellant Hal-

ler contends that the trial court erred in admitting into

evidence certain statements concerning her reputation. At

trial, Haller took the stand and testified that she was en-

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trapped. The trial court later allowed a government wit-

ness to testify that several unnamed informants told him

that Haller had been involved in other narcotic transac-

tions. Haller argues that the agent’s testimony was inad-

missible hearsay and that the names of the informers

should have been revealed. We disagree. In Rocha v United

States, 5 Cir. 1968, 401 F2d 529, cert. den. 393 U.S. 1103,

we held that when entrapment is asserted as a defense,

hearsay is admissible to show prior disposition to commit

an offense charged in the indictment and that the govern-

ment is not required to disclose the names of the inform-

ants.

Haller also contends that the evidence established that

she was entrapped. Brooks contends that the trial court

erred (1) in refusing to give a requested jury instruction

as to the government’s burden in proving entrapment

and (2) in ruling that Brooks was not entrapped at a mat-

ter of law. Lumdy contends (1) that the jury selection

plan, allegedly excluding Latin-Americans and persons be-

tween 21 and 25, denied his right to a jury of his peers;

(2) that Congress exceeded its power under the commerce

clause in enacting 21 U.S.C. § 841(a)(1); (3) that the

trial court erred in denying his motion for severance;

(4) that there was insufficient evidence to show for the

jury to find him guilty of the offenses charged; and (5)

that there was a failure to republish Schedule I as re-

quired by 21 U.S.C. § 812.

We find no merit in any of these contentions. The deci-

sion of the district court must therefore be affirmed.

Affirmed.

PE ELS TEENY SS TRETB M SOR NUM EG M8

3a

APPENDIX B

PROPOSED JUDGMENT*

No, 72-2734

Appeal from the United States District Court for the

Southern District of Florida

Before BROWN, Chief Judge, WISDOM and

AINSWORTH, Circuit Judges.

This cause came on to be heard on the transcript of the

record of the United States District Court for the South-

ern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOFP, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be and the same

is hereby affirmed.

April 25, 1973

Issued as Mandate:

(As to Sandra Haller only)

*Counsel is advised that us of August 2, 1973, this judg-

ment, because of a clerical crror, has not yet been en-

tered.

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ORDER

No. 72-2734

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING

(May 31, 1973)

Before BROWN, Chief Judge, WISDOM and

AINSWORTH, Circuit Judges

ER CURIAM: It is ordered that the Petition for

Rehearing filed on behalf of Sandra Haller in the above

entitled and numbered cause be and the same is hereby

denied.

Signed by all three judges

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