Petition for A Writ of Certiorari — Friend v. Lippman

INDEX

Page

Opinions Below _____... ae

Jurisdiction 2

Questions Presented 2

Constitutional and Statutory Provisions Involved -....... 3

Reference _.... 4

Statement of the Case ____. 4

Reasons for Granting the Writ -___-.......--....---------.... 8

Conclusion ie ; 35

Appendix A -_____........-.-...-------------- A-1

I ins: acccipdivenibeicockdieisouneokineecncboninbcbadeiaisoniuee saeaiae B-1

Appendix C C-1

I igiichiedisgantiean csritesndeocoethisnetiovkconeplaloesiaensaomennsed D-1

Appendix E est cka si Cees oad aces ae

PE istcetnciecnca nicer aint jaime a catatieatniselios ee |

SRE SEN ELIS REG

TABLE OF AUTHORITIES

Cases

Colsby v. United States, 160 U. S. 70, 16 S. Ct. 216

a eee 22

Costello v. United States, 350 U. S. 359, 76 S. Ct.

406, 100 L. Ed. 397 (1956) 10, 12

Crisp v. United States, 262 F. 2d 68 (4th Cir. 1958) _.24

Garcia v. United States, 373 F. 2d 806 (10th Cir.

a7) ............ * : 2 17

Government of the Virgin Islands v. Cruz, 478 F. 2d

712 (3rd Cir. 1973) Craskadliseiehtbeescaamabicaasluanaaes 20

i

ii

TABLE OF AUTHORITIES—Continued

Page

Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229,

14 L. Ed. 2d 106 (1965) 29, 30, 31, 34

Hansford v. United States, 303 F. 2d 219 (D.C. Cir.

1962) 23, 24

Henderson v. United States, 237 F. 2d 169 (Sth Cir.

1956) 24

Lawn v. United States, 355 U. S. 339, 78 S. Ct. 311,

2 L. Ed. 2d 321 (1958) 10

McCarty v. United States, 379 F. 2d 285, 286-287

cosa cnt ldadiiatpinniennnichaiscinsedanaacien 24

Murphy v. Waterfront Commission, 378 U.S. 52, 84

S. Ct. 1594, 12 L. Ed. 678 30

People v. Modesto, 62 Cal. 2d 436, 42 Cal. Rptr.

417, 398 P. 2d 753 30

Redfield v. United States, 328 F. 2d 532 (D.C. Cir.),

cert. denied 377 U. S. 972, 84 S. Ct. 1654, 12 L.

Ed. 2d 741 (1964) __...... 24, 25

Robison v. United States, 379 F. 2d 338 (9th Cir.),

vacated 390 U. S. 198, 88 S. Ct. 903, 19 L. Ed.

2d 1040, on remand 307 F. S. 403 (1968) __._......... 20

Sciortino v. Zampano, 385 F. 2d 132 (2d Cir.

1967), cert. denied, 390 U. S. 906, 88 S. Ct. 820,

19 L. Ed. 2d 872 (1968) 11,12

Sears v. United States, 343 F. 2d 139 (Sth Cir. 1965) .24

Sendejas v. United States, 428 F.2d 1040 (9th Cir. ),

cert. denied 400 U. S. 879, 91 S. Ct. 122, 27 L.

Ed. 2d 116 (1970) Fels Aish. 2 One cee EON 25

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

819, 2 L. Ed. 2d 848 (1958) __.......----. . 18, 19, 20

TABLE OF AUTHORITIES—Continued

Page

Simmons v. United States, 390 U. S. 377, 88 S. Ct.

967, 19 L. Ed. 2d 1247 (1968) --------- 27, 29, 31, 33

Sorrells v. United States, 287 U. S. 435, 53 S. Ct.

210, 77 L. Ed. 413 (1932) 18, 19, 20

Turner v. United States, 441 F. 2d 736 (Sth Cir.

1971) 22

United States v. Alford, 373 F. 2d 508 (2nd Cir.),

Ed. 2d 1003 (1967) 24

cert. denied 387 U. S. 937, 87 S. Ct. 2062, 18 L.

United States v. Ambrose, 483 F. 2d 753 (6th Cir.

1973) 20

United States v. Cross, 347 F. 2d 327 (8th Cir. 1965)_20

United States v. Cruz, 478 F. 2d 408 (Sth Cir. 1973). 9

United States v. Doe, 488 F. 2d 93 (Sth Cir. 1973)__.22

United States v. Dukes, 479 F. 2d 324 (5th Cir. 1973)_15

United States v. Estepa, 471 F. 2d 1132 (2nd Cir.

1972) 10, 11

United States v. Gower, 447 F. 2d 187 (Sth Cir.

1971) _9

United States v. Groessel, 440 F. 2d 602 (Sth Cir.),

cert. denied 403 U. S. 933 (1971) 15, 19

United States v. Hayes, 441 F. 2d 542 (10th Cir.

1971) 17, 18

United States v. Hill, 444 F. 2d 115 (10th Cir. 1971) 18

United States v. Klaes, 453 F. 2d 1375 (Sth Cir.

1972) 9

United States v. Leibowitz, 420 F. 2d 39 (2d Cir.

TE rtevinincemnns 10

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Newcomb, 488 F. 2d 190 (Sth Cir.

1974) : 2,5, 10, 14, 15

United States v. Payton, 363 F. 2d 996 (2d Cir.),

385 U. S. 993, 87 S. Ct. 606, 17 L. Ed. 2d 453

(1966) 12

United States v. Powers, 482 F. 2d 941 (8th Cir.

» 1973) 13

United States v. Ramirez, 482 F. 2d 807 (2d Cir.

1973) 10, 11

United States v. Russell, 411 U. S. 423, 93 S. Ct.

1637, 36 L. Ed. 2d 366 (1973) 18, 19

United States v. Sadler, 488 F. 2d 434 (Sth Cir.

1974) _. de Dy Ee oO

United States v. Shameia, 464 F. 2d 629 (6th Cir.),

cert. denied 409 U. S. 1076, 93 S. Ct. 684, 34

L. Ed. 2d 664 (1972) 23, 25

United States v. Tatar, 439 F. 2d 1300 (9th Cir.),

cert. denied 404 U. S. 866, 92 S. Ct. 69, 30 L. Ed.

2d 109 (1971) 20

United States v. Thompson, 366 F. 2d 167 (6th Cir.

1966) 20

United States v. Umans, 368 F. 2d 725 (2nd Cir.

1966), cert. granted, 386 U. S. 940, 87 S. Ct. 975,

17 L. Ed. 2d 872, cert. dismissed as improvidently

granted, 389 U. S. 80, 88 S. Ct. 253, 19 L. Ed.

2d 255 (1967) 12

Vv

STATUTES

Page

21 U.S.C. Section 841 4

21 U.S.C. Section 846 _. aig ciieehadeaniiasienaieah ana

I I BUD ee onc 2

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 52(b) -.. sieniibsishaicsaiblsinaposiamineseia 3, 15, 17, 18

CONSTITUTIONAL PROVISIONS

Constitution of the United States——

Fourth Amendment ___-.............- 13, 25, 26, 27, 28

Fifth Amendment — ---------... 4, 13, 21, 23, 25, 26, 27,

28, 29, 30, 31, 32, 33

EAE LE 4, 21, 23

Fourteenth Amendment _______...........4, 25, 26, 27, 29

IN THE

Supreme Court of the United States

NO. ————

CARL EUGENE SADLER,

MICHAEL ALFRED BRANDES,

STEVEN PAUL NEWCOMB and

WAYNE EDWIN LUCAS, JR.,

Petitioners,

v.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Carl Eugene Sadler, Michael Alfred Brandes, Steven

Paul Newcomb and Wayne Edwin Lucas, Jr., Petitioners,

pray that a Writ of Certiorari issue to review the judgment

of the Fifth Circuit Court of Appeals, entered in this case

on January 17, 1974.

OPINIONS BELOW

Petitioners Carl Eugene Sadler, Michael Alfred

Brandes, Steven Paul Newcomb and Wayne Edwin Lucas,

1

2

Jr., were convicted in the United States District Court

for the Southern District of Florida, of conspiracy to

possess with intent to distribute some eighty (80)

pounds of marijuana, in violation of 21 U. S. C., Section

846. Sadler and Brandes were tried together and convicted

on October 27, 1972. Newcomb and Lucas were tried

together and convicted on February 28, 1973. In two

separate appeals, the four of them appealed to the Court

of Appeals for the Fifth Circuit. The opinions of the

Fifth Circuit are reported as United States v. Sadler, 488

F. 2d. 434 (1974) and United States v. Newcomb, 488

F. 2d. 190 (1974). Copies of these opinions are attached

hereto, as Appendix “A” (Sadler and Brandes) and as

Appendix “B” (Newcomb and Lucas).

JURISDICTION

The Opinions of the Court of Appeals for the Fifth

Circuit affirming the Trial Courts’ findings that Petitioners

were guilty of the offense of conspiracy to possess with

intent to distribute marijuana, in violation of 21 U. S. C.

§846, was entered on January 17, 1974. This Petition

for Certiorari is not filed within thirty days of said date

for the reason explained in the letters to the Clerk of the

Supreme Court and Fifth Circuit of Appeals and attached

hereto as Appendix “C”. The jurisdiction of this Court

is invoked under 28 U.S.C. §1254 (1).

QUESTIONS PRESENTED

1. All Petitioners present the following question:

Whether Petitioners’ Motion to Inspect the Grand

Jury Minutes should have been granted to enable Peti-

tioners to determine whether the indictment was founded

3

on hearsay or other incompetent evidence, or alternative-

ly, whether the trial court must make an in camera

inspection of the grand jury minutes to see if the grand

jury was notified of the hearsay nature of the testimony

received, where defendant has asserted that the grand

jury heard only incompetent, hearsay evidence.

2. Petitioners Sadler and Brandes present the following

questions:

(a) whether, in using the terms “unlawful” and “law-

ful” entrapment in his charge to the jury, the trial judge

committed “plain error” pursuant to Rule 52 (b), Fed-

eral Rules of Criminal Procedure.

(b) whether the trial court erred in not allowing

Petitioners Sadler and Brandes to present evidence in

surrebuttal to new evidence introduced by the Govern-

ment in rebuttal.

3. Petitioners Newcomb and Lucas present the following

question:

Whether the trial judge erred when he refused to give

a charge on entrapment, thus denying petitioners the

right to present alternative, or inconsistent, defenses; that

is Petitioners contend they should have been permitted

to argue that, though they deny committing the acts

they are charged with, if the jury should find that they

did do these acts, then they were entrapped into com-

mitting them.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

There are no statutory provisions involved other than

21 U.S.C. §846 for violation of which Petitioners were

4

convicted. This section is set forth in Appendix “D”,

attached hereto. For the sake of clarity, Count II, setting

out a violation of 21 U.S.C. §841 (a)(1), for which

Petitioners were found not guilty, is also included in

Appendix “D”.

The pertinent provisions of the Fifth, Sixth, and

Fourteenth Amendments to the Constitution of the United

States are set forth in Appendix “E”, attached hereto.

REFERENCE

The following symbols will be referred to throughout

this Petition:

“S & B, T” for the transcript of the trial proceedings in

which Petitioners Sadler and Brandes were convicted.

“N & L, T” for the transcript of the trial proceedings in

which Petitioners Newcomb and Lucas were convicted.

The parties will be referred to in this petition as they

appeared before the trial court.

STATEMENT OF THE CASE

On September 14, 1972, Steven Paul Newcomb, Bruce

Myers Seale, Carl Eugene Sadler, Michael Alfred

Brandes, and Wayne Edwin Lucas, Jr. were indicted by

a Federal Grand Jury, Miami, Florida, for violation of

Title 21, United States Code, Sections 846 and 841

(a)(1), and Title 18, United States Code, Section 2.

Count I of the indictment charged the Petitioners and

Defendant Seale with conspiring with each other to

possess with intent to distribute eighty (80) pounds of

marijuana. Count II charged Petitioners and Defendant

5

Seale with possessing with intent to distribute eighty

pounds of marijuana. All were charged with aiding and

abetting each other in Count II.

On October 24, 1972, Petitioner Lucas was severed

from trial and trial by jury proceeded with the remaining

three Petitioners and Bruce Myers Seale.

On October 27, 1972, the trial concluded. Petitioner

Newcomb was found not guilty as to Count II and a

mis-trial declared as to Count I. Seale was found not

guilty as to both counts. Petitioner Sadler was found

guilty as to Count I and not guilty as to Count II. Peti-

tioner Brandes was found guilty as to Count I and not

guilty as to Count II.

On February 26, 1973, Newcomb was re-tried on

Count I of the indictment along with Lucas, who, having

been previously severed from the first trial, was being

tried on Counts I and II of the indictment. Lucas was

subsequently granted a Motion For Acquittal as to Count

II. On February 28, 1973, the trial concluded with

Petitioners Newcomb and Lucas being found guilty of

Count I of the indictment.

Petitioners Sadler and Brandes appealed. The opinion

of the Fifth Circuit is reported at 488 F. 2d 434 (Sth Cir.

1974), see Appendix “A”, and affirms the Judgment and

Commitment below. Petitioners Newcomb and Lucas

also appealed. The opinion of the Fifth Circuit affirming

their conviction is found at 488 F. 2d 190 (Sth Cir. 1974)

and is attached hereto as Appendix “B”.

On or about September 1 or 3, 1972, in St. Augustine,

Florida, his home, Petitioner Brandes met the confidential

informer, who was using the alias, “Ronnie Dawsey”, and

6

whose real name was Gregory Robinson. Mr. Robinson

related that he first mentioned the subject of acquiring

drugs from Petitioner Brandes, but Brandes would not

give him any because Brandes said he was “paranoid”

(S & B, T. 266). Brandes told him that he, Brandes, did

not know where in St. Augustine to obtain a large quanti-

ty of marijuana nor did he know where to obtain heroin,

but that he might be able to make a connection in Miami

(S & B, T. 189-190). Petitioner Brandes and the informer

then flew to Miami in their quest for drugs. Brandes

testified that the informer paid for his ticket (S & B, T.

191), whereas the informer stated that Brandes paid

for his own ticket (N & L, T. 43). Brandes testified that

he was partly motivated in coming to Miami by the idea

of a free trip to Miami, which he had never visited (S &

B, T. 196). Once in Miami, Petitioner Brandes and the

informer were met at the airport by Petitioner Sadler.

Thence, all proceeded to the Dankers Inn in Miami.

Petitioner Brandes testified that the informer registered

in Room 303 for Petitioners Sadler and Brandes (S & B,

T. 192). Petitioner Sadler testified that as soon as he

met the informer that the latter began inducing him to

procure marijuana for a wealthy organization that the

informer represented. Petitioner Sadler said that upon

learning from the informer the amount of money he was

willing to pay for a large quantity of marijuana that he,

Sadler, went out to look for some (S & B, T. 209). When

Petitioner Sadler told Bureau of Narcotics and Dangerous

Drugs’ Agent, Jose Marin, who had now entered the

negotiations stage on the side of the Government (S &

B, T. 211), that he, Sadler, had not been able to obtain

a large quantity of marijuana, Marin began putting a lot

of pressure on Petitioner Sadler (S & B, T. 214). Later

4

that evening, the search of Petitioner Sadler, Marin, and

the informer led them to 3081 Gifford Lane where Sadler

knew of some people who might have marijuana. An

occupant of that house had led Sadler to believe that a

large quantity of marijuana would be available, but when

Petitioner Sadler arrived there was no marijuana there.

Sadler told agent Marin that Marin could not go inside

the house because the people inside were “paranoid”,

meaning scared (S & B, T. 220). Agent Marin admitted

that Petitioner Sadler was apprehensive about the deal

(N & L, T. 138).

Agent Marin testified that Petitioner Newcomb and

Defendant Seale were called into the affair by Petitioner

Sadler and that Newcomb and Seale took over negotia-

tions (S & B, T. 36). Petitioner Newcomb testified that

he was in Miami on vacation and had gotten together

with his friend, Defendant Seale, during his vacation,

(N & L, T. 282-3). Further, Newcomb testified that

Agent Sweat of BNDD discussed with him the purchase

of marijuana, but Newcomb advised Sweat that he,

Newcomb, was not interested in having anything at all

to do with marijuana (N & L, T. 278). However, Peti-

tioner Newcomb did admit that he accompanied Agents

Marin and Sweat to the 3081 Gifford Lane address

(N & L, T. 278) which was termed the “stash pad” by

Agent Marin (S & B, T. 38), meaning a place where

marijuana is stored. Shortly after arriving at the “stash

pad”, Petitioner Newcomb was arrested along with De-

fendant Seale. Approximately eighty (80) pounds of

marijuana was seized (N & L, T. 108, 176-178).

Agent Marin’s testimony shows Petitioner Newcomb to

have been the owner of the marijuana and the one who

handled the negotiations in the final stages (S & B, T.

37; 40-42).

With respect to the Petitioner Lucas, the government

proved that he rented a white Rambler in Orlando, Florida

in September, 1972 (N & L, T. 25). The government

could not prove that the trunk of the car was clean of

contraband prior to it being turned over to Petitioner

Lucas (N & L, T. 35). Specifically, the government’s

evidence showed that the car that Petitioner Lucas

rented was seen leaving the Dankers Inn and was followed

to 3081 Gifford Lane. Agent Milford saw, standing next

to the white Rambler, a man wearing a green shirt with

designs on it (N & L, T. 209). Later, Agents, Marin and

Milford and the informer saw someone enter the Rambler

and drive away (N & L, T. 57, 103, 210). Petitioner

Sadler came out and told the agents that the person in

the Rambler had gone to get more marijuana (N & L,

T. 57, 104). Agent Milford later saw the Rambler re-

turn, and then shortly thereafter depart again (N & L,

T. 211-212). Agent Warner later saw the Rambler enter

the Dankers Inn parking lot, deposit Petitioner Sadler, and

leave again. Warner followed the Rambler and subse-

quently arrested Petitioner Lucas who was wearing a

dark green shirt with designs. A small amount of mari-

juana was found in the car’s trunk (N & L, T. 219-222,

245).

Petitioners Sadler and Brandes were arrested at the

motel (S & B, T. 109).

REASONS FOR GRANTING THE WRIT

1. Petitioners contend that disagreement in the Circuit

Courts of Appeal over whether the trial court must inspect

9

grand jury minutes to determine whether the grand jury

has heard only hearsay evidence, or having heard only

hearsay, not been notified that they were receiving such

shoddy merchandise, makes this a question ripe for

Supreme Court guidance.

It is the position of the Fifth Circuit that:

“While the presentation of hearsay testimony of

an investigating officer in lieu of readily available

testimony by direct witnesses is by no means a pre-

ferred procedure, it is neither unconstitutional nor

inherently wrong. In the absence of some showing

that the integrity of the grand jury proceedings has

been impaired, an indictment even if based ex-

clusively on such testimony will not be overturned

on appeal.”

United States v. Cruz, 478 F. 2d. 408, at 411 (Sth

Cir. 1973).

In many earlier Fifth Circuit cases, that court has held

that a denial of a Motion to Inspect the Grand Jury

Minutes is within the sound discretion of the trial court

and is not subject to review in absence of an abuse of

discretions United States v. Gower, 447 F. 2d. 187, 191

(5th Cir. 1971). Furthermore, even if it were conceded

that the evidence presented to the Grand Jury were

wholly hearsay, a defendant’s argument that the indict-

ment should have been dismissed will nevertheless fail. In

United States v. Klaes, 453 F. 2d. 1375 (Sth Cir. 1972),

at 1375, the Fifth Circuit held:

“Klaes’ sole contention is that only hearsay evidence

was presented to the grand jury, and therefore the

indictment should have been dismissed. This con-

10

tention is without merit. See Costello v. United

States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397

(1956); United States v. Gower, 447 F. 2d 187

(Sth Cir. 1971).”

Apparently the Fifth Circuit has not even gone so far

as to question whether there is a duty to advise the grand

jurors that they are hearing only hearsay evidence, though

in the reported opinion of Petitioners’ case, United States

v. Newcomb, 488 F. 2d 190 (Sth Cir. 1974), at 192

(See Appendix “B”), the Fifth Circuit, by way of con-

trast to its own position, calls to attention the fact that

in the Second Circuit there are “supervisory guidelines”

to be employed by courts in determining whether or not

the independence and integrity of the grand jury have

been impaired. In fact, the Second Circuit goes much

further than this. In United States v. Ramirez, 482 F. 2d

807 (2d Cir. 1973), that Court says, at 811:

In Costello v. United States, 350 U.S. 359, 76 S.

Ct. 406, 100 L. Ed. 397 (1956), the Supreme Court

held that an indictment may permissibly be based

solely upon hearsay. See also Lawn v.United States,

355 US. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958).

That rule was qualified by this Court in United

States v. Estepa, 471 F. 2d 1132, 1136 (2d Cir.

1972), holding that where the grand jury is “ ‘misled

into thinking it is getting eye-witness testimony from

the agent whereas it is actually being given an

account whose hearsay nature is concealed... .’

United States v. Leibowitz, 420 F. 2d 39, 42 (2

Cir. 1969),” the convictions should be reversed

and the indictment dismissed.

== shane

11

The Second Circuit, upon appeal of Ramirez, examined

the grand jury minutes to determine whether or not the

grand jury had been misled into believing it was getting

an eye-witness account and found that the Government

had very specifically established to the grand jurors that

its witness was giving a hearsay account, Ramirez, supra,

482 F. 2d, at 812. Finally, the Second Circuit in Ramirez,

at page 812, outlined the procedure that should be fol-

lowed where defendant has made a Motion to Inspect

the Grand Jury Minutes:

In the light of Estepa, where it appears that the

grand jury has heard only hearsay testimony, upon

appropriate motion, the proper course for the trial

judge to follow is to examine the grand jury minutes

in camera to determine whether or not the grand

jury was misled into believing it was given eye-wit-

ness testimony when in fact it was not.

An examination of United States v. Estepa, 471 F. 2d

1132 (2d Cir. 1972) reveals a concern for a defendant's

Fifth Amendment rights that it not evidenced in the

aforenamed decisions of the Fifth Circuit. In Estepa,

supra, 471 F. 2d at 1136, Chief Judge Friendly said:

When the framers of the Bill of Rights directed in

the Fifth Amendment that “No person shall be held

to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand

Jury,” they were not engaging in a mere verbal

exercise. The importance of avoiding undue reliance

upon hearsay before a grand jury is heightened by

this circuit’s view that an indictment constitutes a

finding of probable cause and avoids the need for a

preliminary hearing under F.R.Cr.P. 5(c). Sciortino

12

v. Zampano, 385 F. 2d 132 (2 Cir. 1967), cert.

denied, 390 U.S. 906, 88 S. Ct. 820, 19 L. Ed. 2d

872 (1968).

A further review of Second Circuit cases shows that

as far back as United States v. Umans, 368 F. 2d 725,

730 (2 Cir. 1966), cert. granted, 386 U.S. 940, 87 S. Ct.

975, 17 L. Ed. 2d 872, cert. dismissed as improvidently

granted, 389 U.S. 80, 88 S. Ct. 253, 19 L. Ed. 2d 255

(1967), that court had become concerned over the gov-

ernment’s needless reliance on hearsay before the grand

jury. For example, Judge Friendly, dissenting in United

States v. Payton, 363 F. 2d 996, cert. denied, 385 US.

993, 87 S. Ct. 606, 17 L. Ed. 2d 453 (1966), at 1000,

put these Petitioners’ argument most forcefully:

“The course followed by the government in this

case makes a mockery of the Fifth Amendment’s

guarantee . . . what compromises this indictment is

not that the grand jury heard only hearsay testimony

as in Costello . . . but that, in sharp contrast to that

case, it had no way of knowing that the testimony

that was all it was hearing was hearsay.

If, in these narcotics peddling cases, the government

insists on pressing Costello to the point of offering

a grand jury only hearsay testimony by a surveilling

agent when there is no apparent reason save a

transparently unworthy one for not producing the

agent with first hand knowledge, it must make clear

to the jurors the shoddy merchandise they are getting

so that they can seek something better if they

wish, .. .”

13

The Eighth Circuit has also considered the question

presented here and has refused to adopt the approach

of the Second Circuit, United States v. Powers, 482 F. 2d

941 (8th Cir. 1973), at 943.

In the case before this court, Petitioners contend that

they should have been allowed to inspect the grand jury

minutes or, alternatively, to have had the trial court

inspect the minutes in camera to determine whether or

not the grand jurors heard only hearsay evidence when

first-hand knowledge was readily available and to find

out whether, if hearsay was all that was presented, the

grand jury was made aware that all it was hearing was

hearsay.

It is a common practice in narcotics cases for the

government to present only the testimony of a supervisory

agent whose knowledge is gathered from the reports of

field agents. This is the evil that petitioners herein main-

tain prevent the grand jury from fulfilling its traditional

role as a screening agency, protecting innocent persons

from whims of lazy, or worse, unscrupulous, prosecutors.

Such a practice by the government of presenting only

hearsay evidence, for whatever the reason, both threatens

the integrity of the judicial system and deprives petitioners

of their Fourth, Fifth, and Sixth Amendment rights.

Specifically, Petitioners argue that had the grand jury

heard the first-hand testimony of the confidential informer

in this case, Greg Robinson, the grand jurors might have

found the testimony of that convicted narcotics user to

be less than credible and, therefore, might have refused

an indictment, particularly if the grand jurors had heard

his account of how he first induced Petitioner Brandes

14

to procure marijuana for Robinson’s “organization”,

which was none other than our Federal Government.

Petitioners concede that the testimony of the Govern-

ment’s Special Agent, Jose Marin, provided the grand

jury with some first-hand testimony, but this does not

detract from Petitioners’ argument that had the grand

jury heard the confidential informer testify, they might

not have indicted Petitioners.

In the final analysis, if the trial court judge does not

examine the grand jury minutes, as he may in the Second

Circuit, how else will it ever be determined whether or

not the grand jury was aware that all it was hearing was

hearsay. In the reported opinion of this case below,

United States v. Newcomb, 488 F. 2d at 192, the Fifth

Circuit, after noting the “supervisory guidelines” of the

Second Circuit, states, referring to Petitioners’ case:

“Here, there is no indication that the court below

abused its discretion in not ordering the grand jury

minutes produced for defendants. The trial judge,

like this court, was given no reason to suspect that

the indictment was ill-founded.”

This statement is the crux of the problem. Petitioners

contend that this court should resolve the conflict between

the Circuits by declaring that upon proper motion by the

defendant, he be allowed to inspect the grand jury minutes,

or alternatively, the trial judge in camera inspect the

grand jury minutes and make any other investigation

necessary to determine (1) whether non-hearsay evidence

is readily available; (2) whether the grand jury has been

misled into believing it was hearing direct testimony

rather than hearsay; and (3) whether there was a high

probability that had the grand jury heard the eye-witnesses

Ba |

15

it would not have indicted. See United States v. Newcomb,

supra, 488 F. 2d at 192, fn. 1, and Second Circuit cases

cited therein.

2. (a) Petitioners Sadler and Brandes assert that the trial

court erred in charging the jury on the defense of entrap-

ment by phrasing the definition of that defense in terms of

“lawful” and “unlawful” entrapment when in fact entrap-

ment is per se unlawful. Such a charge is inherently con-

fusing. The jury in this case had an exceedingly difficult

time understanding the judge’s charge on entrapment

to the considerable prejudice of Petitioners’ constitutional

rights.

There is conflict between the Circuits as to whether or

not an entrapment couched in the terms “lawful-unlaw-

ful” is “plain error” under Rule 52 (b) of the Federal

Rules of Criminal Procedure (F. R. Cr. P.), set out in

Appendix “F”.

In United States v. Groessel, 440 F. 2d 602 (Sth Cir.

1971), cert. denied 403 U.S. 933 (1971), the Fifth

Circuit recognized that:

“... utilization of such terms as “lawful entrapment”

and “unlawful entrapment” in a jury instruction is

confusing and, perhaps erroneous.” Groessel at 607.

But, the Fifth Circuit has refused to hold that such an

instruction is, per se, plain error. See United States v.

Dukes, 479 F. 2d 324 (Sth Cir. 1973) at 326, where the

Fifth Circuit reiterated its concern with a charge contain-

_ ing the phrase “unlawful entrapment” but held in that

case that the charge considered as a whole was not so

misleading or confusing as to prejudice the rights of the

accused.

a

16

There is no doubt in Petitioners’ case that the charge,

which was filled with references to, and definitions of,

lawful and unlawful entrapment, was confusing to the

jury. Part of the charge in question is set forth in Appendix

“G”. First, the trial judge’s charge defined two kinds of

entrapment, one lawful and the other unlawful (S & B, T.

402). He went on to mention “unlawful entrapment” five

times and “lawful entrapment” two times (S & B, T.

401-404). Secondly, some time after retiring to the jury

room, the jury sent a message out to the judge requesting

that he re-charge them on the definition of lawful and

unlawful entrapment (S & B, T. 417). The court marked

this request Court’s Exhibit No. 3 calling the jury back

in again and charged them on entrapment using the same

charge as before (S & B, T. 419-421). The next morning

the judge stated that the jury had asked him (Court’s

Exhibit No. 5) for a copy of the definition of lawful and

unlawful entrapment for the jury room (S & B, T. 432).

The couct acknowledged that the jury was having prob-

lems with that aspect of the case (S & B, T. 433). Counsel

objected to the jury having a written definition of entrap

ment so the judge charged the jury once again on entrap-

ment using the same charge (S & B, T. 435-438).

Throughout this lengthy procedure, counsel for petitioners

maintained his objection to the trial court’s entrapment

charge (S & B, T. 334-335, 415-416, 422, 438). Finally,

the jury requested that the testimony of Petitioner

Brandes and that of the confidential informer be re-read

to them. These two witnesses were the key witnesses sur-

rounding the entrapment defense. The judge refused this

request of the jury (S & B, T. 439).

Petitioners Sadler and Brandes wonder what clearer

case could be presented to show that a charge couched

17

in terms of lawful and unlawful entrapment is inherently

confusing and should be considered “plain error” under

Rule 52(b), F. R. Cr. P.

Petitioners rely on a Tenth Circuit case, United States

v. Hayes, 441 F. 2d 542 (10th Cir. 1971), which presents

facts and issues much like the case sub judice. There,

defendant posed an entrapment defense based on the

activities of a confidential informer. The court there

charged the jury on entrapment using a charge quite

similar to the charge used in Petitioners’ case, using the

terms “lawful” and “unlawful” and defining each of those

two types of “entrapment”, Hayes, supra, at 543. The

defendants did not object to the charge but raised the

issue on appeal. The Tenth Circuit said, noting that the

question on appeal was whether the instruction consti-

tuted plain error, at 543:

In Garcia v. United States, 373 F. 2d 806, 809

(10th Cir. 1967), then Chief Judge Murrah stated

as follows: “We must confess our inability to com-

prehend a “lawful” entrapment. In our view the ac-

cused is either entrapped or he is not entrapped. If he

is entrapped, he cannot be punished.*** The words

[‘lawful’ or ‘unlawful’] add nothing to an under-

standing of the defense, and may indeed tend to

confuse.”

and further:

In this case, we believe the defendants introduced

sufficient evidence of entrapment to submit the issue

to the jury. However, the trial court’s charge was

clearly erroneous when it instructed the jury re-

garding a concept of “lawful” versus “unlawful”

entrapment.

18

While counsel was at fault in not requesting an

instruction in conformity with the earlier decision

of this Court, we think that under the circumstances

of this case, the trial judge committed plain error

in his instructions. Hayes at 544.

By footnote to the last paragraph, the court quoted

Rule 52 (b), F.R.Cr.P., which is set out here for con-

venience: “Plain errors or defects affecting substantial

rights may be noticed although they are not brought to the

attention of the court.”

The Hayes opinion was followed shortly thereafter by

United States v. Hill, 444 F. 2d 115 (10th Cir. 1971),

which cited Hayes as controlling and stated that the dis-

trict court’s instruction on entrapment, which used the

terms lawful and unlawful entrapment, though not ob-

jected to at the trial, was plain error under Rule 52 (b),

F.R.Cr.P., and required reversal.

Petitioners contend that the charge given in their case

was erroneous; there is no such thing as lawful entrap-

ment. Entrapment is ipso facto and ipso jure, a defense

to a criminal charge. Nowhere in the opinion of then

Chief Justice Warren, writing for the majority in Sherman

v. United States, 356 U.S. 369, 78 S. Ct. 819, 2L. Ed. 2d

848 (1958), is there found reference to two types of

entrapment, one lawful and the other unlawful. Neither

are these two concepts discussed in Sorrells v. United

States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932),

where this court first recognized and applied the entrap-

ment defense. Again, the latest case considered by this

court dealing with an entrapment defense, United States

v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366

(1973), nowhere mentions lawful or unlawful entrap-

19

ment. The majority opinions in each of these cases make

clear that the focus of inquiry when an entrapment de-

fense is presented is on the pre-disposition of the de-

fendant, whereas the minority view is that the inquiry

should focus on whether the government “instigated the

crime,” Russell, supra, 93 S. Ct. at 1641.

Chief Justice Warren may have been the “unwary

innocent” and created the confusion over the lawful-

unlawful entrapment charge when he wrote in Sherman

that “[t]o determine whether entrapment has been es

tablished, a line must be drawn between the trap for the

unwary innocent and the trap for the unwary criminal.”

356 U.S., at 372, 78 S. Ct., at 821.

In United States v. Groessel, supra, 440 F. 2¢ at 607,

appellant argued that the “charge of the trial judge that

‘the question is whether defendant is a strayed lamb or

an ensnared wolf’ was tantamount to an instruction that

there are two types of entrapment—lawful and unlawful.”

Groessel, supra, at 607. The Fifth Circuit in Groessel felt

that the “lamb-wolf” expression was no more than a

metaphorized modification of Chief Justice Warren’s

“unwary innocent-unwary criminal” phraseology in Sher-

man.

Petitioners strongly contend that this conclusion by

the Fifth Circuit is not supported by the decisions of this

Court in Sorrells, Sherman and Russell, which all agree

that the inquiry is between the predisposition of the de-

fendant and the inducement of the government agents,

not whether the entrapment was lawful or unlawful.

Most Circuits seem to agree with the Fifth Circuit that

use of a lawful-unlawful entrapment charge is not plain

20

error. The Third Circuit in Government of Virgin Islands

v. Cruz, 478 F. 2d 712 (3d Cir. 1973), at 719, states:

“, .. although we believe that it would be prefer

able to avoid phrases like ‘lawful entrapment’ and

‘unlawful entrapment’ when charging a jury, we do

not think that their use amounted to plain error so

as to warrant consideration in the absence of a timely

objection.”

That court by footnote adds that the present Devitt and

Blackmar instruction on entrapment makes no reference

to “lawful entrapment”. E. Devitt and C. Blackmar,

Federal Jury Practice & Instructions, Section 13. 13 (2d

ed. 1970). Cruz, supra, at 719.

A lawful-unlawful entrapment instruction is not im-

proper in the Ninth Circuit, United States v. Tatar, 439

F. 2d 1300 (9th Cir.), cert. denied 404 U.S. 866, 92 S. Ct.

69, 30 L. Ed. 2d 109 (1971); Robison v. United States,

379 F. 2d 338 (9th Cir. 1967), vacated 390 U.S. 198,

88 S. Ct. 903, 19 L. Ed. 2d 1040, on remand 307 F. S.

403 (1968); nor in the Sixth Circuit, United States v.

Ambrose, 483 F. 2d 753 (6th Cir. 1973); United States

v. Thompson, 366 F. 2d 167 (6th Cir. 1966) (which held

a lawful-unlawful instruction not improper citing Sorrells

and Sherman); nor in the Eighth Circuit, United States v.

Cross, 347 F. 2d 327 (8th Cir. 1965).

Petitioners Sadler and Brandes maintain that there is

no legal authority for characterizing entrapment as law-

ful or unlawful. The issue is simply entrapment and that

issue should go to the jury to determine whether the

defendant was predisposed to commit a crime or whether

his crime was the result of impermissible governmental

21

inducement rising to the level of creative activity. If he

is found to be entrapped, he should be acquitted. |

By using the terms “lawful” and “unlawful” the jury

is forced into a boggy word game and must decide whether

something that is unlawful per se, entrapment, might be

lawful if the defendant were properly entrapped. On top

of that shaky foundation, how can the court properly

build in the jurors’ mind a conception of where predis-

position and inducement fit in the total framework.

The unlawful—lawful entrapment charge used in Peti-

tioners’ case denied them the full benefit of the defense

of entrapment and hence denied them due process of law

as guaranteed by the Fifth Amendment of the Constitution

of the United States. Petitioners were also denied the right

to a trial by an “impartial jury” as guaranteed by the

Sixth Amendment because the jury was forced to decide

whether the entrapment was “lawful” or “unlawful” and

were therefore no longer “impartial” as to the defense of

entrapment.

Therefore, for all of the foregoing reasons, Petitioners

Sadler and Brandes believe that this Court should grant

certiorari to resolve this important issue.

(b) Petitioners Sadler and Brandes assert that the trial

judge erred in refusing them the right to present evidence

in surrebuttal when the testimony of government's rebut-

tal witness, Greg Robinson, the confidential informer,

went into new areas and injected fresh issues on which

the petitioners were denied the right to present evidence in

contradiction.

Petitioners admit that it is within the sound discretion

of the trial judge to receive additional evidence after the

22

close of the case-in-chief, Colsby v. United States, 160

USS. 70, 16 S. Ct. 216, 40 L. Ed. 343; Turner v. United

States, 441 F. 2d 736 (Sth Cir. 1971), but where the

government’s rebuttal injects new material or fresh issues,

a defendant should be allowed surrebuttal, Turner, supra,

441 F. 2d at 739; United States v. Doe, 488 F. 2d 93

(Sth Cir. 1973). This also seems to be a well settled

point.

The Fifth Circuit in the opinion below, United States

v. Sadler, 488 F. 2d at 436, points an accusing finger at

defense counsel and states:

“Defense counsel at no time during the informer’s

testimony objected on the basis of his going into new

matter. When, after cross-examining the informer,

defense counsel attempted to present more testimony,

the court gave him the opportunity to demonstrate

why additional evidence was necessary. This he was

unable to do. He pointed to no new ground covered

by the informer’s testimony and gave no indication

that his witnesses would do more than reiterate the

evidence presented in the case-in-chief.”

Petitioners contend that defense counsel did his best to

show the court that he wished to introduce evidence con-

tradicting the new issues opened up by the informer, but

the court arbitrarily and prejudicially to Petitioners re-

fused to allow defense counsel to explain what new evi-

dence he would present (S & B, T. 296-298). As the

court below noted, defense counsel’s argued on appeal

that he wished to show that informer was a narcotics

addict with needle marks on his arm. The court says: “If

this intention had been made known to the trial judge,

he might have felt obliged to admit the impeaching evi-

23

dence.” Sadler, supra, at 436. Petitioners assert that this

defense counsel attempted to do, but was stiffled by the

trial judge who said that never in ten years had he granted

the right of surrebuttal. (S & B, T. 298).

Petitioners therefore submit that their right to due

process of law under the Fifth Amendment has been

abridged. Similarly, Petitioners have been denied their

Sixth Amendment right to trial by an “impartial jury”

because the jury in their case was not able to consider all

the evidence that Petitioners could have presented on their

behalf. Petitioners were greatly prejudiced by this abuse

of discretion and argue that their Petition for Writ of

Certiorari should be granted for this reason.

3. Petitioners Newcomb and Lucas argue that their peti-

tion for writ of certiorari should be granted so that this

Court can examine and resolve the conflict in the Circuits

over whether or not a defendant’s denial of the acts con-

stituting the crime charged is inconsistent with a defense

of entrapment.

In most of the circuits “. . . the defendant may not

absolutely deny every act necessary to constitute the

offense and the claim entrapment on the part of Govern-

ment agents,” United States v. Shameia, 464 F. 2d 629,

631 (6th Cir. 1972). In Shameia, at 630 and 632, are

cited cases from the First, Fifth, Seventh, Eighth and

Ninth Circuits establishing the rule that defendant may

not deny the act and nevertheless have benefit of an

entrapment defense.

The Court of Appeals for the District of Columbia

Circuit and the Fourth Circuit apparently allow the

presentation of inconsistent defenses. In Hansford v.

24

United States, 303 F. 2d 219 (D. C. Cir. 1962), the

court stated:

“It was consistent with defendant’s denial of the

transaction to urge that if the jury believed it did

occur the government’s evidence as to how it

occurred indicated entrapment.

Hansford, supra, 303 F. 2d, at 221. In Crisp v. United

States, 262 F. 2d 68 (4th Cir. 1958), the Fourth Circuit

held that where defendant claimed that the government

agent had snatched a bottle of drugs from his hand, that

is, there had never been any sale and at the same time

presented an entrapment defense, there was ample evi-

dence justifying submission of the issue to the jury and

that it was perfectly proper to permit the alternative de-

fenses.

Alternative defenses may be allowed in certain cases if

substantial evidence of entrapment is injected into the

case by the government and if the defendant offers no

evidence of entrapment inconsistent with his denial of the

crime. See Sears v. United States, 343 F. 2d 139, 143 (Sth

Cir. 1965); Henderson v. United States, 237 F. 2d 169,

172 (5th Cir. 1956); and McCarty v. United States, 379

F, 2d 285, 286-287 (Sth Cir. 1967), explaining Sears and

Henderson. The key in these three cases, the Fifth Circuit

says, is the degree of inconsistency involved. Also in some

Circuits if the defendant has produced uncontroverted

evidence of entrapment he may be allowed alternative

defenses. See United States v. Alford, 373 F. 2d 508,

509-10 (2d Cir.) (dictum), cert. denied, 387 U.S. 937,

87 S. Ct. 2062, 18 L. Ed. 2d 1003 (1967); Redfield v.

United States, 328 F. 2d 532, 533 (D.C. Cir.) (dictum)

cert. denied, 377 U.S. 972, 84 S. Ct. 1654, 12 L. Ed. 2d

25

741 (1964). Perhaps even more Circuits would agree that

the defendant may plead alternative defenses and have an

entrapment charge, even while he denies committing the

requisite acts, where the government’s proof establishes

entrapment as a matter of law, See United States v.

Shameia, 464 F. 2d 629 (6th Cir.) (dictum), cert. denied

409 U.S. 1076, 93 S. Ct. 684, 34L. Ed. 2d 664 (1972);

Sendejas v. United States, 428 F. 2d 1040 (9th Cir.)

(dictum), cert. denied 400 U.S. 879, 91S. Ct. 122, 27 L.

Ed. 2d 116 (1970).

Petitioners maintain that this Court should now exam-

ine the rule against pleading alternative defenses. There

are three basic arguments for abolishing the rule. The

first is that the rule forces a defendant to surrender

fundamental constitutional rights in order to avail himself

of his right to raise the defense of entrapment. The second

argument is in requiring that defendant not be allowed

to plead inconsistent defenses too great a burden is placed

on his ability to defend himself. Third, even if defendants

were allowed to plead alternative defenses, no additional

burden would be placed on the government in proving

their case.

Petitioners argue for a constitutional basis for the de-

fense of entrapment. The constitutional limitations on

entrapment as a device that promotes crime rather than

preventing it could be based on Fourth Amendment, Fifth

Amendment, or Fourteenth Amendment due process

grounds.

As to the Fourth Amendment grounds, petitioners

argue that an analogy between entrapment and illegal

searches and seizures can be made. A confidential inform-

er or under cover agent such as in petitioners’ case, who

26

is employed by the government to ferret out crime in-

discriminately is in reality “searching” for a crime, thus

subjecting the individual to an unwarranted invasion of

his right to privacy. This inducement of crime for the

purpose of making an arrest may become as objectionable

as the unlawful search. Therefore, any right which the

government might have to induce people to commit a

crime or to search for crime should be balanced by an

individual’s Fourth Amendment rights of privacy, dignity

and personal integrity.

The Fifth Amendment provides that a person has a

right to be free from coerced confessions. The analogy

to entrapment is that in both cases the defendant is

coerced into supplying evidence of his own guilt. The

difference is that in entrapment the police, disguising

their identity, solicit the defendant to commit acts which

he does not realize will be used against him. With coerced

confessions on the other hand, the police aggressively

interrogate the defendant wringing from him a verbal

statement. Therefore, if police may not elicit incriminat-

ing statements from a defendant by overcoming his will,

then they should not be allowed to overcome his will by

tempting him to commit an offense.

Possibly entrapment may also be based on the due

process clause of the Fourteenth Amendment. There are

two important due process requirements upon which this

argument rests. First, before criminal liability can be

established, the defendant must perform some culpable

act. The police then should not have unlimited power to

solicit criminal acts by the use of illegal entrapment

methods, which eliminates the requirement of a culpable

act, since the police could probably subvert anyone into

committing a crime by using methods geared to that

ERR at

27

person’s particular weakness. (Note here that entrapment

by police is most often used in the so-called victimless

crime cases that appeal to a person’s moral and/or

physical weaknesses, such as prostitution, homosexuality,

narcotics, illegal liquor, and gambling.) The second

requirement is that the due process clause permits a

deprivation of liberty only where a legitimate goal of

society is achieved. There is no legitimate societal ob-

jective served by unlimited solicitation of criminal acts

through the use of illegal entrapment because such meth-

ods promote crime rather than prevent it. So criminal acts

are committed by those, who left alone, might have obeyed

the law.

Petitioners contend that if the defense of entrapment

is presumed to be based in the Constitution, then one who

is prohibited from asserting alternative defenses is forced

to choose between his constitutional rights. For example,

if a defendant raises the defense of entrapment he is

forced to forego his constitutional right against self-

incrimination and his due process right to have the crime

proven beyond a reasonable doubt. If he asserts his Fifth

Amendment right to remain silent and his Fourteenth

Amendment right to have the government prove him

guilty beyond a reasonable doubt, then he is forced to

forego his right to raise an entrapment defense. Petitioners

argue that forcing them to make this critical decision at

their trial violated the Supreme Court’s own mandate in

Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967,

19 L. Ed. 2d 1247 (1968).

In Simmons, the defendant, in order to obtain standing

to support a pre-trial motion to surpress evidence on

Fourth Amendment grounds, was required to give certain

incriminating testimony, which was later used at his trial

28

as evidence of his guilt. This Court said that it was “par-

ticularly sensitive” to rules that impose conditions deterr-

ing a defendant from asserting his Fourth Amendment

objection. The rule from the court below required that a

defendant who wished to establish standing had to do so

at the risk that the words which he uttered would be later

used to incriminate him. The court below had held that

such testimony was voluntary and that there is no violation

of the self-incrimination clause of the Fifth Amendment.

This Court said, at 393, 394:

A defendant is “compelled” to testify in support of

a motion to suppress only in the sense that if he

refrains from testifying he will have to forego a

benefit, and testimony is not always involuntary as

a matter of law simply because it is given to obtain

a benefit. However, the assumption which underlies

this reasoning is that the defendant has a choice:

he may refuse to testify and give up the benefit.

When this assumption is applied to a situation in

which the “benefit” to be gained is that afforded by

another provision of the Bill of Rights, an undeniable

tension is created. Thus, in this case Garrett was

obliged either to give up what he believed, with

advice of counsel, to be a valid Fourth Amendment

claim or, in legal effect, to waive his Fifth Amend-

ment privilege against self-incrimination. In these

circumstances, we find it intolerable that one con-

stitutional right should have to be surrendered in

order to assert another. We therefore hold that when

a defendant testifies in support of a motion to sup-

press evidence on Fourth Amendment grounds, his

testimony may not thereafter be admitted against

29

him at trial on the issue of guilt unless he makes no

objection.

Thus, if entrapment is presumed to be based in the

Constitution, the mandates of Simmons should have pre-

cluded the trial court in petitioner’s case from applying the

rule that required them to admit the crime in order to

raise the defense of entrapment. The application of the

rule against inconsistent defenses forces defendants in

general, and forced petitioners in particular, to surrender

one constitutional right, the presumed right to be free

from entrapment, in order to assert two other constitu-

tional rights, the Fifth Amendment right against self-

incrimination and the Fourteenth Amendment due process

right to have the charges against them proven beyond a

reasonable doubt.

Petitioners extend their argument by asserting that,

even if this Court should find that the theoretical founda-

tion of entrapment is not constitutionally based, it is still

arguable under Simmons that the primary concern should

be the importance of the right that the defendant has to

give up in order to assert his Fifth Amendment right

against self-incrimination. Although the Court in Simmons

said that where the benefit is another constitutional right

an intolerable situation is created, Simmons, supra, at 394,

88 S. Ct., at 976, 19 L. Ed. 2d, at 1259, the fact that the

entrapment defense might lie only on the fringes of

constitutionality or is one that is of vital importance to

a defendant’s ability to defend himself should not preclude

the application of the Simmons rationale.

In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229,

14 L. Ed. 2d 106 (1965), the prosecutor commented on

the defendant’s failure to testify, thereby prejudicing the

30

defendant before the jury for asserting his Fifth Amend-

ment right to remain silent. The Court commented on the

prejudicial effect on the jury that the prosecutor’s remark

might have:

For comment on the refusal to testify is a remnant

of the “inquisitorial system of criminal justice,”

Murphy v. Waterfront Comm., 378 U.S. 52, 55, 84

S. Ct. 1594, 1596, 12 L. Ed. 678, which the Fifth

Amendment outlaws. It is a penalty imposed by

courts for exercising a constitutional privilege. It

cuts down on the privilege by making its assertion

costly. It is said, however, that the inference of guilt

for failure to testify as to facts peculiarly within the

accused’s knowledge is in any event natural and

irresistible, and that comment on the failure does

not magnify that inference into a penalty for assert-

ing a constitutional privilege. People v. Modesto, 62

Cal. 2d 436, 452-453, 42 Cal. Rptr. 417, 426-427,

398 P. 2d 753, 762-763. What the jury may infer,

given no help from the court, is one thing. What it

may infer when the court solemnizes the silence of

the accused into evidence against him is quite

another.

Griffin, at 614. The Court goes on to hold that the de-

fendant may not be penalized for exercising his Fifth

Amendment right against self-incrimination by having

the assertion of that right cost him so dearly when the

prosecution comments on his silence or the court gives an

instruction that such silence is evidence of guilt. Griffin,

at 615.

Similarly, the defendant in an entrapment case who

exercise his Fifth Amendment privilege against self-in-

31

crimination is also penalized because he is forced to fore-

go the benefit of the defense of entrapment, or if he asserts

the entrapment defense, he is penalized because he is

forced to forego his Fifth Amendment right against self-

incrimination. Petitioners contend that Griffin supports

the rationale that the burden placed on a defendant who

exercises his Fifth Amendment right does not have to

result from the deprivation of another constitutional right,

as occurred in Simmons. Instead, forcing a choice that

causes the defendant to surrender his Fifth Amendment

right against self-incrimination in order to exercise another

important right should be sufficient to invoke the Griffin

rationale. Based on Griffin, it seems that the application

of the rule barring inconsistent defenses of denial and

entrapment unnecessarily penalizes the defendant for

exercising his right against self-incrimination.

The second argument attacking the rule against in-

consistent defenses is that such a rule places too great a

burden on the defendant’s ability to defend himself. When

a defendant is forced to admit the crime in order to assert

entrapment as a defense the government is automatically

relieved of proving the commission of a crime beyond a

reasonable doubt. The government need only negate the

entrapment defense which it can do by proving the de-

fendant’s predisposition to commit the crime. This pre-

disposition evidence can include prior convictions, prior

criminal activity even though no convictions were in-

volved, and general character evidence. This type of evi-

dence has a very prejudicial effect on juries. The defen-

dant entrapped by the government, may decide because of

his poor background to forego the entrapment defense

and hope the government cannot prove his guilt beyond

a reasonable doubt.

32

On the other hand, if the defendant decides to use the

entrapment defense he is also prejudiced because the

prosecution does not have to prove their case. Defendant

looses the opportunity to learn the weaknesses of the

government’s case and looses the right to object to the

government’s evidence. Thus, if the rule against alterna-

tive defenses is abolished, the defendant would be pro

vided with a valuable opportunity to evaluate and object to

the government’s case.

The third argument attacking the rule against incon-

sistent defenses is that even if the defendant were allowed

to deny commission of the crime and alternatively, to say,

that if the jury should believe he committed the crime,

that he was entrapped into doing it, is that permitting

alternative defenses places no greater burden on the gov-

ernment beyond the requirements of an ordinary criminal

prosecution. The government, when it prosecutes an in-

ducement-type case, must be reasonably satisfied that it

has sufficient evidence to prove the elements of the crime

beyond a reasonable doubt. It is to be expected that in

such inducement cases the defendant will not incriminate

himself by admitting the commission of the criminal act

charged unless he thinks he can succeed with the entrap-

ment defense alone. Therefore, the two constitutional

rights that the defendant must surrender in order to raise

the entrapment defense—the Fifth Amendment right

against self-incrimination and the due process right to

have the crime proved beyond a reasonable doubt—are

burdens which the government would have to overcome in

any ordinary criminal case. Thus, abolishing the rule

against inconsistent defenses would not affect the govern-

ment’s prosecution of criminal offenders.

33

In summary then, petitioners argue that for three rea-

sons the rule against alternative defenses should be abol-

ished as imposing unreasonable and penalizing burdens

on defendants in general, and on petitioners in particular

as they proceeded from inducement to arrest to conviction.

First, they were penalized by the rule against alternative

defenses because they had to choose whether to assert

their Fifth Amendment right against self-incrimination,

or foregoing that right assert the defense of entrapment.

Petitioners chose to assert their Fifth Amendment privi-

lege and were penalized because they had to forego their

beneficial right to raise the issue of entrapment. If, on

the other hand, petitioners had plead entrapment they

would have been forced to forego their Fifth Amendment

right against self-incrimination as well as their right to

have every element of the crime proven beyond a reason-

able doubt. In the usual entrapment case, a defendant is

also prejudiced because of the predisposition evidence that

the jury will hear and because he never gets the opportun-

ity to evaluate or object to the government’s case. These

penalties and burdens defendants must suffer even though

abolition of the general rule would place no greater bur-

dens on the prosecution. Petitioners admit that because in

their case entrapment became an issue only late in the

trial, they were spared the prejudicial effects of the intro-

duction of predisposition evidence such as prior criminal

activities and general character evidence, assuming the

government could have presented such evidence.

In conclusion, petitioners maintain that it is time for this

Court to take a closer look at the rule against alternative,

or inconsistent defenses. The rule has created an intoler-

able situation wherein these petitioners were forced to

choose between their constitutional rights, as in Simmons,

34

or between a constitutional right and another right that,

though perhaps not quite of constitutional proportions, is

of vital importance to their ability to defend themselves,

as in Griffin.

For these reasons, Petitioners Newcomb and Lucas

believe that this Court should grant certiorari.

35

CONCLUSION

The trial court erred in denying petitioners’ Motion to

Inspect the Grand Jury Minutes, in charging the jury on

entrapment using the terms “lawful” and “unlawful” en-

trapment (petitioners Sadler and Brandes), and in denying

surrebuttal to petitioners Sadler and Brandes after the

government had injected new issues on rebuttal. The trial

court also erred, in the trial of petitioners Newcomb and

Lucas, in not allowing them to plead inconsistent or

alternative defenses, that is, in not allowing them to both

deny committing the acts charged and in the alternative

also to plead that if the jury believe that they committed

the acts charged that they were entrapped and induced

into doing the acts by government undercover agents.

There is conflict in the Circuits as to each of these

issues except the surrebuttal question. All of these ques-

tions need to be resolved as they go to the very foundation

of the constitutional rights of these petitioners and all

other defendants similarly situated. Petitioners contend

that they were denied a fair trial by an impartial jury and

thus were denied due process of law.

For the foregoing reasons, it is respectfully urged that

this Petition for a Writ of Certiorari be granted.

Respectfully submitted,

/s/Murray M. SILVER

/s/PAUL J. SEWELL

100 Colony Square

Suite 1700

1175 Peachtree Street, N.E.

Atlanta, Georgia 30361

Counsel for Petitioners