Opposition Brief — Haller v. United States

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In te Signin «Cot fhe Ri Sie

OcToBER TERM, 1973 -

SANDRA HALLER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

. THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RosBerT H. Bork,

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

JOHN J. ROBINSON,

WILLIAM M. Piatt,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited Anes

OcTOBER TERM, 1973

No. 73-225

SANDRA HALLER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 477 F. 2d 453.

JURISDICTION

The judgment of the court of appeals was entered

on April 25, 1973. A petition for rehearing was denied

on May 31, 1973. The petition for a writ of certiorari

was filed on August 2, 1973, and is thus substantially

out of time under Rule 22(2) of the Rules of this

Court. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

7 Whether hearsay testimony may be admitted to es-

tablish predisposition to commit the crime when entrap-

ment has been raised as a defense.

2. Whether the defendant is entitled to disclosure of

the names of confidential informers whose hearsay

statements are admitted on the issue of predisposition.

STATEMENT

Petitioner was convicted, following a jury trial in the

United States District Court for the Southern District

of Florida, on two counts of a seven-count indictment

charging her and three co-defendants (tried separately)

with possession and sale of heroin, in violation of 21

U.S.C. 841. She was sentenced to concurrent terms of

three years’ imprisonment followed by a special parole

term of three years (Tr. 165). The court of appeals

affirmed (Pet. App. A).

1. Federal narcotics agent Walde testified that on May

17, 1972, working as an undercover agent, he and an

informant, Stone, went to petitioner’s apartment in

Oakland Park, Florida, to see a suspected drug dealer,

Mike Ball, who lived there with petitioner (Tr. 10).

At the apartment they encountered petitioner, who was

leaving with several other people. Petitioner asked Stone

and agent Walde to watch the apartment until she

returned. When she returned from an errand with an

unidentified male, Stone asked petitioner if they could

“cop some stuff,” i.e., purchase some heroin (Tr. 11).

She agreed and asked them to return in 15 minutes.

When they returned, petitioner was standing outside

the apartment. Agent Walde attempted to give her

fifty dollars on the street, but petitioner said “That's

not cool. Let’s get in the car” (Tr. 12). Agent Walde,

a

Stone and petitioner then got into the agent’s car.

Petitioner told the agent that the 15 minute delay was

required because she didn’t want to deal while the

other man, who had accompanied her back to the

apartment, was present (Tr. 22). Petitioner was concerned °

about whether agent Walde was “cool,” since she had

never met him. She was satisfied, however, after seeing

a driver’s license, that he was not “the heat,” ie.,

a policeman (Tr. 13). Petitioner handed agent Walde a

foil package which she said contained five “dime bags,”

for which the agent paid her $50 (Tr. 12). The contents

of the bags were subsequently found to be heroin (Tr.

15). Agent Walde testified further that no representa-

tions were made to petitioner as to the intended use

of the heroin and that she exhibited no reluctance

whatever to make the sale (Tr. 26-27). On May 23,

1972, petitioner went with the agent and Stone to see

co-defendant Brooks for a second purchase (Tr. 64).

Petitioner admitted the sale of heroin, but claimed

that she was entrapped. Testifying in her own behalf,

petitioner claimed that when Walde and Stone appeared

at her apartment, “they asked me if I could get them

some [heroin], and I said no, I didn’t want to in parti-

cular. * * * I was told that the agent’s wife was an addict;

that she needed it badly; that the man they usually

got it from had been busted. * * * I said I didn’t have

any. I never keep any at the house” (Tr. 41).

Petitioner claimed that she had never sold heroin

prior to this incident, although she had been an addict

for “about two years.” She stated that she had a narcotics

habit requiring two bags of heroin a day, and she was

under the influence of drugs when the two arrived

(Tr. 47). Petitioner further testified that to her knowledge

narcotics had never been sold at her apartment (Tr. 44),

PESTA EPR IER REM I EEN

4

Mike Ball was not dealing in heroin there (Tr. 45),

and neither she nor Ball kept any quantity of drugs on

the premises (Tr. 48). She acknowledged, however, that

several people frequented her apartment to use drugs

(Tr. 59) and that often the drug purchase and use

constituted a group activity (Tr. 60). She testified that

she got the narcotics from “John Love” some four or

five blocks away (Tr. 54).

In rebuttal, the government presented hearsay testimony

to show petitioner's predisposition to sell heroin. Officer

Jack D’Ambrosia of the Oakland Park Police testified

over petitioner’s objections that petitioner had a repu-

tation for dealing in drugs. Officer D’Ambrosia said

(Tr. 78-79):

I was approched [by several informants] and was

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 apart-

ment, both black and white people.

I watched the apartment for a while and saw

heavy traffic, and | informed our uniformed division

to also keep an eye on the apartment for me, and

if anybody familiar or familiar to us involved in

narcotics was seen leaving or entering the apartment,

| wanted to know about it.

= * * * *

The Fort Lauderdale Police Department informed

me that their informant had also stated that Haller

and Ball were both dealing in heroin from the

apartment. And from our own police department

and records clerk who lived very close to the

Hallers and Ball also advised me that the neigh-

borhood was buzzing with rumors and people talking

5

about the apartment, the large amount of traffic

entering and leaving.

Officer D’Ambrosia testified that the informant, Stone,

had related to him that petitioner was present when

narcotics were sold there by Mike. Ball, and “if Ball

was not at home, Sandra Haller would sell the drugs”

(Tr. 80-81). Informant Stone also related to the agent

a specific sale by Haller to a known drug user,

McFarland (Tr. 90). Petitioner was identified in police

files as a heroin user (Tr. 106). On cross-examination

by defense counsel, the informant reports were reviewed

in detail. The sources of all reports of petitioner’s

reputation with respect to drugs, except for the names

of four confidential informants, were disclosed to defense

counsel.! A request for disclosure of the identities of

the four informants was denied (Tr. 87-88).

During the course of the government’s rebuttal tes-

timony, the court instructed the jury (Tr. 101-102):

***TA]s you were advised at the beginning of

this case, it was stated to you that the defense

was that of entrapment. The testimony of this

witness concerning the defendant’s reputation is

admitted solely for the purpose of bearing upon

her predisposition to commit the offense with which

she is charged. * * * Does everyone understand

that? [The jury indicates in the affirmative.] I will

charge you at length on what entrapment is. But

his testimony will only go to her willingness and

readiness or predisposition to have committed the

| The officer tamed the police records clerk (Tr. 88), identified

the Ft. Lauderdale policewoman. involved (Tr. 114),+and turned

over the report which had been given to the federal agents for

introduction into evidence (Tr. 102).

we earnest Py AAI te So HPS

6

offenses charged in the indictment, not that she

actually did it.

At the time of trial, informant Stone’s whereabouts

were unknown (Tr. 23). McFarland was called by peti-

tioner on surrebuttal and denied ever having purchased

drugs from petitioner (Tr. 121-122). None of the other

named sources of Officer D’Ambrosia’s reputation testi-

mony was called. In its general charge, the court

instructed the jury on entrapment (Tr. 155-157). There

were no objections to the charge (Tr. 160).

ARGUMENT

1. Petitioner challenges the trial court’s admission of

hearsay evidence for the purpose of establishing pre-

disposition once the defense of entrapment has been

raised. Predisposition is, of course, part of the govern-

ment’s burden once the defense of entrapment has been

properly raised. As this Court held in United States

v. Russell, 411 U.S. 423, relying on its prior decisions

in Sherman v. United States, 356 U.S. 369, and Sorrells

v. United States, 287 U.S. 435: “* * * [T]he thrust of

the entrapment defense * * * focus[es] on the intent

or predisposition of the defendant to commit the crime.”

411 U.S. at 429. In Sorrells, the Court noted that

“if the defendant seeks acquittal by reason of entrap-

ment he cannot complain of an appropriate and search-

ing inquiry into his own conduct and predisposition

as bearing upon that issue. If in consequence he suffers

a disadvantage, he has brought it upon himself by

reason of the nature of the defense.” 287 U.S. at 451-452. |

This Court has never determined the standards for |

admissibility of predisposition eviderce,2 and _ the

2 In Sorrells, Mr. Justice Roberts indicated in his separate

opinion (in which Justices Brandeis and Stone concurred) that

the rule established by Sorrells would permit the use of reputa-

tion testimony to establish predisposition. 287 U.S. at 458; and

see the concurring opinion of Justice Frankfurter in Sherman,

356 U.S. at 382-383.

hac a AARNE AT LN LIL RIOTS SPATE

courts of appeals have adopted varying ‘ approach-

es.3 In the present case the court of appeals,

adhering to prior decisions of the Fifth Circuit, held

that hearsay evidence was admissible to establish pre-

disposition (Pet. App. A, p. la). While there appears to be

some difference in the treatment of this issue by the

various circuits (see note 3, supra), and while the Fifth

Circuit rule may or perhaps should be subject to an excep-

tion where the particular hearsay evidence in question is

co

3 Cases in the Fifth and Ninth Circuits, including one in which

certiorari was sought and denied, permit the use of hearsay to

establish predisposition. See, e.g., United States v. Robinson,

446 F. 2d 562 (C.A. 5), certiorari denied, 404 U.S. 959; Thompson

v. United States, 403 F. 2d 209 (C.A. 5); Pulido v. United

States, 425 F. 2d 1391 (C.A. 9). The Third Circuit has expressly

rejected the use of hearsay. United States v. Catanzaro, 407 F.

2d 998. The First Circuit has rejected the use of hearsay in two

decisions; however, in each case the evidence was inherently unre-

liable. Waker v. United States, 344 F. 2d 795; Whiting v. United

States, 296 F. 2d 512. The Seventh Circuit has excluded hearsay

when such evidence is found unreliable, e.g., United States v.

Johnson, 426 F. 2d 112, and admitted hearsay when such evidence

is found to be reliable, e.g., United States v. Perry, No. 72-1363,

petition for writ of certiorari pending, No. 73-5091. Although noting

that the prosecution is not subject to the usual restrictions on rep-

utation and character evidence in showing predisposition, the Sixth

Circuit has excluded hearsay in the form of information contain-

ed on file cards which the government agent admitted to be

sometimes unreliable. United States v. Ambrose, Nos. 72-2190,

72-2191. Two other circuits have addressed the question only

in terms of showing similar conduct, allowing such evidence

in proper circumstances. E.g., United States vy. Viviano, 437 F. 2d

295 (C.A. 2), certiorari denied, 402 U.S. 983; Hansford v. United

States, 303 F. 2d 219 (C.A. D.C.). The Eighth Circuit has held

hearsay admissible on the issue of “probable cause” to initiate the

transaction. United States v. Siegel, 16 F. 2d 134. However, as

we noted in our opposition in Perry v. United States, supra, Sup.

Ct. No. 73-5091; we are of the view that the government need

not establish the basis for undertaking any investigation, so that

evidence of the state of mind of government agents—hearsay or not—

should not be admitted.

PEDO

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inherently unreliable or not probative and the evidence

of entrapment substantial, resolution of this context-

dependent, evidentiazy question may properly be left

to the courts of appeals. Cf. United States v. Augenblick,

393 U.S. 348, 355; Palermo v. United States, 360 U.S.

343, 353.

The hearsay testimony admitted here would pose a

more troublesome question were the evidence of entrap-

ment substantial. But here, the sole source of evidence

on the entrapment issue was the somewhat vague and

uncertain testimony of petitioner. She testified that the

informant Stone told her that agent Walde’s wife

was an addict whose supplier had been “busted,”

and that she needed heroin* (Tr. 41). Whether or not

the foregoing assertion would warrant submission of

entrapment to the jury, the record is clear that in

spite of her asserted reluctance to sell, petitioner never-

theless promptly and without any objective manifesta-

tion of reluctance agreed to make the sale, even though

she had known Stone for only a month and had never

met agent Walde before (Tr. 40, 42, 52-55).° Finally,

since predisposition may be inferred from the evidence

concerning the transaction itself, see, e.g., Waker v.

United States, supra, 344 F. 2d at 798, and since

such evidence in this case was sufficient to support,

if not compel, an inference of predisposition, the now

4 Agent Walde denied that either he or Stone (as far as he

was aware) had told petitioner that Walde’s wife was an addict

in need of heroin (Tr. 72). We note also that petitioner was

initially uncertain as to whether she was told that the agent's

wife was an addict before or after the sale (Tr. 50-51).

5‘ The rapidity with which petitioner agreed to sell is in stark

contrast to Sherman, where the government informer’s own

testimony showed that he was able to obtain narcotics from

a fellow patient at a drug treatment clinic only after repeated

requests and appeals to svmpathy.

rege a

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9

disputed hearsay evidence was cumulative and unlikely

to have affected the jury’s verdict.

2. The refusal of the district court to order disclosure

of the identity of the four police informants who were .

the sources of some of the reputation testimony con-

cerning petitioner did not violate her right to confront

accusing witnesses guaranteed under the Sixth Amend-

ment, since the informers’ information did not relate to

the criminal transaction at issue, and none of the unnamed

informers was present at, or participated in, the ‘sale

of narcotics. See McCray v. Illinois, 386 U.S. 300,

309; Roviaro v. United States, 353 US. 53, 62. The

court’s decision not to require disclosure of their identi-

ties was based on considerations of safety of the infor-

mants and preservation of their usefulness for future

investigations (Tr. 87) and did not constitute abuse of

discretion.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

HENRY E. PETERSEN,

Assistant Attorney General.

JOHN J. ROBINSON,

WILLIAM M. P1atTT,

Attorneys.

NOVEMBER 1973,

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