# Petition for A Writ of Certiorari — Friend v. Lippman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 415 U.S. 920

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1375%3A1. Public record. Not legal advice.