Petition for Writ of Certiorari — Greenbank v. United States

IN THE

Supreme Court of the United States

October Term, 1973

No.

EDWARD W. GREENBANK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

For the Ninth Circuit

TABLE OF CONTENTS

Abbreviations .......+-+ ese.

Table of Cases and Authorities ....

Opinions Below . ......2..e «ees

Jurisdiction . . . 2. 2 6 «ee eo «

Question Presented .......+242.

Constitutional Provisions Involved.

Amendment 5 of the United States

Constitution . . . . 2. 2. 2 «© © «© « «

Statement of Facts ......+2.+2-.

Reasons for Granting the Writ ....

Conclusion . . . « « «© © «© © © © © ©

Appendices:

Appendix A .

Appendix B . , ; ° "

Appendix C... °

ABBREVIATIONS

For purposes of this petition the

porter's Transcript will be designated

Page

° i

° ii

° 2

. 2

° 3

° 4

° 4

° 10

° 19

- A-l

- A-7

- A-14

Re-

"RT" followed by the appropriate page num-

ber.

TABLE OF CASES AND AUTHORITIES

Cases Page

Mapp v. Ohio,

367 U.S. 659 o o e - ” o im - . o . e e 14

Olmstead v. United States,

277 U.S. 438 (1928) ... ec ccee 19

Sherman v. United States,

356 U.S. 369 (1958) ...w ec ceceece 11

Sorrells v. United States,

aur U.S. 458 (3933) «wc cececee 10,11

United States v. Ambrose,

483 F.2d 742 (6th Cir. 1973) ..... 14

United States v. Bueno,

447 F.2d 903 (5th Cir. 1971) ..... 17

United States v. Chisun,

312 F. Supp. 1307 (C.D. Cal. 1970) .. 17

United States v. Croxton,

482 F.2d 231 (9th Cir. 1973) ..... 14

United States v. Dodson,

481 F.2d 656 (5th Cir. 1973) ..... 14

United States v. Ewbank,

483 F.2d 1149 (9th Cir. 1973) .... 14

United States v. Green,

454 F.2d 783 (9th Cir. 1971) ..... 17

United States v. Martin,

482 F.2d 202 (9th Cir. 1973) ..... 14

United States v. Pollard,

483 F.2d 929 (8th Cir. 1973) ..... 14

» §8 «

TABLE OF CASES AND AUTHORITIES

Cases (Cont'd) Page

United States v. Russell,

411 U.S. 423 (1973). . .3,10,11,12,13,14,15

Statutes

United States Code,

Title 21 U.S.C. § 841

Title 21 U.S.C. § 846

Title 21 U.S.C. § 952

Title 28 U.S.C. § 1254

Other

United States Constitution,

F if th Amendment J o e 7 e e . . 7 . s 4

IN THE

Supreme Court of the Anited States

October Term, 1973

No.

EDWARD W. GREENBANK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

For the Ninth Circuit

Edward W. Greenbank ("Greenbank") pe-

titions for a Writ of Certiorari to review

the judgment of the United States Court of

Appeals for the Ninth Circuit in this case,

entered 28 January 1974.

OPINIONS BELOW

The ruling of the District Court

granting Greenbank's motion for judgment

of acquittal on Count II, Possession with

Intent to Distribute a Controlled Sub-

stance, Title 21 U.S.C. § 84l(a) (1) and

(b) and the denial of the motion as to

Count I, Conspiracy to Commit an Offense

against the United States, Title 21 U.S.C.

§ 846 is attached hereto as Appendix A,

pages A-l - A-6. The opinion of the Court

of Appeals for the Ninth Circuit has not

yet been reported and is attached hereto

as Appendix B, pages A-7 - A-2l. The or-

der denying Greenbank's motion for re-

hearing in the Court of Appeals is attached

hereto as Appendix C, page A-22.

JURISDICTION

The opinion of the Court of Appeals

for the Ninth Circuit was entered 28 Janu-

ary 1974. Greenbank's motion for

Seen son cenenmemll

re-hearing was denied 28 February 1974. The

jurisdiction of this Court is invoked pur-

suant to Title 28 U.S.C. § 1254 (1).

QUESTION PRESENTED

Whether the acts of a government in-

formant in arranging for the sale of mari-

juana, negotiating for the purchase of

marijuana from a Mexican smuggler, assist-

ing in the smuggling of the marijuana from

Mexico into the United States, transporting

and delivering the marijuana and returning

to the United States-Mexico border with the

knowledge of United States Customs offi-

cials, to pay the Mexican smuggler for the

contraband, is a case in which the "conduct

of law enforcement agents is so outrageous

that due process principles would absolutely

bar the government from invoking judicial

processes to obtain a conviction." United

States v. Russell, 411 U.S. 423, 430 (1973).

Sah _soneememmneell

CONSTITUTIONAL PROVISIONS INVOLVED.

AMENDMENT 5 OF THE UNITED STATES CONSTITUTION

"No person shall . . ., be deprived of

life, liberty, or property without due proc-

ess of law."

STATEMENT OF FACTS

Sometime during the last week of June

1972, Francisco Jose Gonzalez, a paid gov-

ernment informant-agent, was in contact

with two Mexican marijuana smugglers named

Conde and Duarte. They had contacted Gon-

zalez and requested that he drive a car

for them containing a load of marijuana

(RT 335). Gonzalez contacted Agent Wash-

ington of the United States Customs office

in San Luis, Arizona, and informed him of

the identity of the Mexican smugglers and

their requests (RT 295-296). Agent Wash-

ington told Gonzalez to contact him later

for further instructions. Washington prom-

ised Gonzalez that he, Gonzalez, would be

a eee

paid for his work. The following day, Gon-

zalez and Conde drove to an Indian reserva-

tion near Ajo, Arizona (RT 335). On the

reservation, Conde showed Gonzalez where

the marijuana was going to come through

the United States-Mexican border (RT 337).

Conde explained that Gonzalez was to pick

it up and drive it out. This information

was transmitted by Gonzalez to Agent Wash-

ington.

From the reservation, Conde and Gon-

zalez drove to the residence of Richard

Gill, the intended buyer of the marijuana

(RT 342). Over the next few days both

Conde and Gill used the informant, Gonzalez,

as an intermediary to negotiate details of

the transaction (RT 348).

Apparently Gill's out of state buyers

had not raised the funds to buy all the

marijuana. It appeared that the transac-

tion might be ended at that point. This

information was relayed to Gonzalez. Gill

paemnReer

also requested that some of the marijuana

be given,to him, Gill, on credit (RT 348).

It was informant Gonzalez who told Gill

that Conde would not agree to provide him

the marijuana on credit. Gonzalez then

urged Gill to call Conde in order to ar-

range a credit transaction.

On the morning of the planned pickup,

Gonzalez phoned Agent Washington to tell

him of the plans and Washington again told

Gonzalez to go ahead. Gonzalez drove to

Gila Bend, Arizona, to meet Gill at the

Space Age Lodge restaurant. There the two

men discussed the proposed marijuana trans-

action (RT 288). Greenbank was present

when Gonzalez first arrived. This was the

first occasion at which Gonzalez met Green-

bank (RT 356, 357). Greenbank waited out-

side the restaurant while the above men-

tioned conversation took place (RT 358, 359).

Later Gonzalez left Gila Bend enroute to

the United States-Mexico border to pick up

—EaEeeaee

the marijuana. While driving to the pick-

up site, Gonzalez met Agent Seaver on the

highway near Why, Arizona. There, the two

men discussed their plans and finally Gon-

zalez said that since he was there already,

he might as well go through with the deal

(RT 206).

Gonzalez drove to the reservation and

met with Conde (RT 297). Gonzalez then

loaded the marijuana into the car that he

was driving. Shortly after leaving the

reservation, Gonzalez spotted Agent Seaver's

truck, stopped his car, and showed Seaver

and Customs officials the marijuana in the

trunk (RT 212, 214). He also informed the

government agents where Conde, Duarte and

the rest of the marijuana could be located.

After this meeting, Gonzalez drove off fol-

lowed by Agent Seaver, both headed to Gila

Bend, Arizona.

Car trouble forced Gonzalez to leave

the car with the marijuana at a service

———E

station and from there he was given a ride

by Agent Seaver to the hotel where Green-

bank was staying (RT 216). After a delay,

Gonzalez was given $9,000.00 for the mari-

juana, left the hotel and again met the

government agents at a service station (RT

181). There he gave the agents a descrip-

tion of Greenbank and his car, and reported

to the agents he had been paid the $9,000.00

for the marijuana. Shortly thereafter,

Greenbank and other defendants were ar-

rested. At some later time, Gonzalez went

to Yuma, Arizona and paid Conde, the Mexi-

can smuggler, his money.

Greenbank was indicted in one count

for Possession with Intent to Distribute a

Controlled Substance; a violation of Title

21 U.S.C. § 841(a) (1) and (b). In another

count, Greenbank was accused of Conspiracy

to Commit an Offense Against the United

States in violation of Title 21 U.S.C. §

846. Greenbank requested that the

——7_—_™

informant be made available for an inter-

view.

Examination of the informant revealed

his immersion in criminal activities rang-

ing from importation of marijuana from

Mexico into the United States to transpor-

tation of marijuana. These illegal activ-

ities were confirmed in cross examination

of Agent Seaver by counsel for Greenbank

when the agent testified as follows:

Q.

Your agent bought, paid for,

sold and assisted in the

smuggling of the marijuana

that these two people are

charged with today, didn't

he?

Didn't he?

Yes sir.

Okay. He also got paid by

you for setting them up,

didn't he?

He received a reward, yes sir.

(RT page 217, lines 12-20).

The jury returned a verdict of guilty

a gpm

) on both counts. The trial court granted

Greenbank's motion for judgment of acquit-

tal on the count charging Possession with

Intent to Distribute. The Court would not

disturb the verdict on the count charging

Conspiracy. On appeal, the Court of Ap-

peals for the Ninth Circuit affirmed the

judgment of conviction.

REASONS FOR GRANTING THE WRIT

In United Statee v. Russell, 411 U.S.

423 (1973), this Court found that the facts

did not justify the legal conclusion reached

by the Ninth Circuit Court of Appeals.

That Court held that as a matter of law "a

defense to a criminal charge may be founded

upon an intolerable degree of government

participation in the criminal enterprise".

United States v. Russell, 459 F.2d 671, 673

(9th Cir. 1972). In so holding, this Court

reaffirmed its prior decisions in Sorretls

v. United States, 287 U.S. 435 (1932), and

wht hres beer the Berne

@ 16 «

a

! Sherman v. United States, 356 U.S. 369

(1958) that the basis of the statutory en-

trapment defense has its focus on the pre-

disposition of the defendant rather than

the degree of governmental involvement in

the criminal enterprise.

Greenbank readily concedes that this

Court's ruling in Russell, supra, forecloses

recourse to the traditional entrapment de-

fense. While recognizing this concession

by Greenbank, the Court of Appeals miscon-

strued Greenbank's defense as being based

upon the broadened view of Sorrells, supra,

and Sherman, supra. This is simply not

the case. Greenbank's defense is premised

upon due process grounds rather than the

traditional entrapment defense or broadened

view of said defense, t.e., the degree of

governmental involvement.

The possibility of a defense premised

ACRE 9 Oo ibe anti aaa

on due process was explicitly left open by

this Court's holding in Russell, supra,

apie Aer aiy 2 a eh an fe

———

TP et ee ei ee wratwees TE Nee PK

where it was stated

"While we may someday be presented

with a situation in which conduct

of law enforcement agents is so

outrageous that due process prin-

ciples would absolutely bar the

government from invoking judicial

processes to obtain a conviction

[citation omitted], the instant

case is distinctly not of that

breed." 411 U.S. at 431, 432.

The facts of the instant case are of that

breed. Invocation of the judicial process

to obtain a conviction, here, violated fun-

damental notions of due process.

In Russell, this Court was asked to

elevate the defense of entrapment to con-

stitutional stature by analogy to the fac-

tors that led to application of the exclu-

sionary rule to illegal searches and

seizures. This argument was rejected in

the following language.

"The analogy is imperfect in any

event, for the principal reason

behind the adoption of the exclu-

sionary rule was the government's

failure to observe its own laws.

Mapp v. Ohio, supra, 367 U.S. at

659. Unlike the situations giv-

ing rise to the holdings in Mapp

@ 12 -

’

and Miranda, the government's con-

duct here violated no independent

constitutional right of the re-

spondent. Nor did Shapiro violate

-any federal statute or rule or

commit any crime in infiltrating

the respondent's drug enterprise."

United States v. Russell, supra,

411 U.S. at 430.

The government in the instant case

has repeatedly broken its own laws. This

lawlessness began when a government agent

helped in smuggling an illegal substance

from Mexico into the United States. A vio-

lation of Title 21 U.S.C. § 952(a) (Impor-

tation of Controlled Substance). The gov-

ernment agent was instrumental in negotiat-

ing the purchase of the marijuana from the

: Mexican smuggler. He assisted in the trans-

_ portation of the marijuana by picking it

| up at a pre-arranged site. He delivered

_ the marijuana and received $9,000.00 for

_ the delivery. Then, with the knowledge and

i consent of United States Customs officials,

3

returned to the United States-Mexico border

and payed the Mexican smuggler. Clearly

=. 13-<

:

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iz

&

2

4

«

4

2

4

4

3

2

the government in the instant case is

guilty of "failure to observe its own laws."

Mapp v. Ohio, supra, 367 U.S. at 659.

This distinction becomes more cogent

when viewed against recent cases that have

applied this Court's holding in Russell,

supra. There has been a uniformity of re-

sult against the defendants on the issue

of entrapment because the government has

merely provided an opportunity for the de-

fendant to commit a crime. United States

v. Dodson, 481 F.2d 656 (5th Cir. 1973);

United States v. Martin, 482 F.2d 202 (9th

Cir. 1973); United States v. Croxton, 482

F.2d 231 (9th Cir. 1973); United States v.

Ambrose, 483 F.2d 742 (6th Cir. 1973);

United States v. Pollard, 483 F.2d 929 (8th

Cir. 1973) and United States v. Ewbank,

483 F.2d 1149 (9th Cir. 1973). In the case

at bar, the government provided more than

mere opportunity. The government was in-

strumental in procuring the corpus delecti

|

of the crime, the contraband.

In Russell, supra, the Court noted

that the chemical supplied by the agent

was a harmless substance and its posses-

sion was legal. The defendant admitted

making the drug both before and after the

government agent supplied the chemical to

them. In the instant case, the facts are

markedly different. What was supplied by

the government was an illegal substance.

No transaction could have occurred before

or after the appearance of the government

agent since it was the agent who assisted

Greenbank and the other defendants.

All the acts hinge upon one factor, the

activity of the government in creating the

crime.

Finally, the Petitioner in Russell,

supra, was engaged in an on-going criminal

:

:

activity prior to the appearance of the

government agent. In the case at bar, the

government agent joined the criminal

1

}

i

H

3

;

>

ee ee ee

:

enterprise at its inception. The criminal

activity began when the source of the con-

traband, Conde, met with the government's

agent-informant, Gonzalez. The next few

days only Conde and Gonzalez met or talked

by phone in order to arrange the time and

place of delivery (RT 335, 342, 347-48).

Defendant Gill then requested informant-

agent Gonzalez to arrange for delivery of

a different quantity of the contraband than

originally planned. Furthermore, the entire

enterprise could have terminated when Gill

could not raise all the money and sought

to have some of the contraband given to

him on credit. It was Gonzalez, the gov-

ernment's agent-informant who told Gill

that Conde would not do that. It was Gon-

zalez who urged Gill to call Conde in

order to keep the criminal enterprise go-

ing to fruition. Every element of this

criminal conspiracy had been effected ex-

cept delivery of the contraband before

: nie.

: Greenbank appeared on the scene (RT 356,

4

| 357).

| ' In its opinion, the Court of Appeals

| placed Conde, Gill and Greenbank as active

. participants in the enterprise prior to

_ Gonzalez joining them. This characteriza-

| tion completely ignores the record in the

| case. The error is compounded by the Court's

opinion that had not Gonzalez been the car-

rier, others could have been found for the

_ job. The Court's reading of the record is

clearly contradicted by the agent-informant

' himself when he testified as follows:

Q. At some time later, you agreed

to do it, did you not?

A. I couldn't find anybody else

who would do it. (RT page 341)

Since this Court did not expressly dis-

_ avow the holdings in United States v. Bueno,

447 F.2d 903 (5th Cir. 1971); United States

v. Green, 454 F.2d 783 (9th Cir. 1971) and

United States v. Chisum, 312 F. Supp. 1307

(CD Cal. 1970) the rationale underlying

Sees eer

» 17 -

ee re aed

Rane nb eld AE tO IR AN Letts Rind hs Se Lae

WiFi cei eiccinbeblehpt Ma iadidaiiads

these decisions merits serious considera-

tion. In essence these cases recognize

' that in ferreting out crime, the police

must use some stealth and covert practices,

At some point stealth becomes a viola-

tion of due process of law. The government

can not create a crime and then punish the

product of its creation, for such activity

is beyond the pale of affording mere oppor-

tunity. Or as Justice Brandeis so succinct-

ly phrased the proposition of law involved

in the instant case.

"Decency, security and liberty

alike demand that government offi-

cials shall be subjected to the

same rules of conduct that are

commands to the citizen. Ina

government of laws, existence of

the government will be imperilled

if it fails to observe the law

scrupulously. Our Government is

the potent, the omnipresent teach-

er. For good or for ill, it

teaches the whole people by its

example. Crime is contagious.

If the Government becomes a law-

breaker, it breeds contempt for

law; it invites every man to be-

come a law unto himself; it in-

vites anarchy. To declare that

in the administration of the

law the end justifies the means--

to declare that the Government may

commit crimes in order to secure

the conviction of a private crimi-

nal--would bring terrible retribu-

tion. Against that pernicious

doctrine this Court should reso-

lutely set its face.”

Olmetead v. United States, 277 U.S. 438,

485 (1928) (Brandeis, J. dissenting).

CONCLUSION

It is respectfully submitted that the

petition for a writ of certiorari should

be granted.

JORDAN GREEN

DEBUS, BUSBY & GREEN, LTD.

Seventh Floor, Luhrs Tower

Phoenix, Arizona 85003

March, 1974

- 19 -

APPENDIX A

Motions for Judgment of Acquittal

THE COURT: Very Well.

Thank you, ladies and gentlemen, for

your services as jurors. You are excused

from further attendance upon the court un-

til notified.

(Whereupon, the jury left the court-

room. )

THE COURT: The defendants are on bail,

are they?

MR. GREEN: Yes, your Honor. The de-

fendant Greenbank has been released on his

own recognizance.

THE COURT: I see. And the defendant

Laakman is on bail? |

MR. PEARLSTEIN: On his own recogni-

THE COURT: Yes.

MR. LEGOWITZ: If it please the court,

there is one matter that has not as yet

been adjudicated in this case.

At the close of the government's evi-

dence, the defendants entered a motion for

a directed verdict of acquittal which the

court has taken under advisement.

THE COURT: Yes.

MR. LEBOWITZ: And the government

would at this time request for the sake of

a complete record if the court could per-

haps make a determination of that motion

at this time.

THE COURT: I will grant the motion

as to Count II of the indictment as to

Edward W. Greenbank.

MR. LEBOWITZ: Thank you.

For the records, Your Honor, so far

as the government in this case is concerned,

the government would request that in view

of the jury's verdict, that the defendant's

bond be revoked. We do this for the record

as a matter of formality.

THE COURT: How soon can I get a

probation report?

MR. LEBOWITZ: I don't know how long

it takes for a pre-sentence report. That's

something I think only the probation de-

partment could answer, your Honor.

MR. GREEN: Our experience, you Honor,

has been something more than two weeks.

MR. LEBOWITZ: And sometimes less than

30 days.

THE COURT: Well, I prefer myself to

impose sentence when I've tried the case.

MR. LEBOWITZ: I understand. I be-

lieve the court could probably make a spe-

cial request of the probation department

to have it completed by a certain date,

and if that is feasible, they are under

the court's authority.

THE COURT: Yes. Well, will you con-

vey my request to the probation department?

MR. LEBOWITZ: Is there a particular

date that the court has in mind?

THE COURT: Well, I'll be leaving here

on the 3rd of May, so some time on or be-

fore the 3rd of May, I ought to have the

report, and as soon as I get the report---~

The defendants will be available at

short notice, will they?

MR. GREEN: My client, Mr. Greenbank,

will be available within 24 hours notice.

THE COURT: And will Mr. Laakman be

available on immediate notice?

MR. PEARLSTEIN: Yes.

THE COURT: So ask them to get the

report to me some time before the 3rd of

May so we can notify the defendants and

get them in here so that I can impose sen-

tence.

MR. LEBOWITZ: I presume judgment is

entered on the verdict with the----

THE COURT: Well, judgment isn't en-

tered until they're sentenced.

If it please the court.

THE COURT: Yes.

With respect to the

defendant Greenbank, we again re-urge the

motion made at the close of the government's

case, a motion for a directed verdict, and

the motion made at the close of all the evi-~

dence for a directed verdict on behalf of

the defendant Greenbank with respect to

Count III of the indictment.

THE COURT: Do I have any other mo-

tions before me in this?

MR. LEBOWITZ: Not that I know of,

your Honor.

MR. PEARLSTEIN: Your Honor, I under-

stand that all motions, especially the mo-

tion for a directed verdict at the close

of the government's case, were re-urged at

the close of the defendant's case.

THE COURT: Yes. I so understand that

they're all before me.

And I'll deny all those motions as of

now----

MR. LEBOWITZ: Very well, your Honor.

THE COURT: --- except the one I

granted with reference to Count II in con-

nection with Mr. Greenbank.

MR. LEBOWITZ: Your Honor, I will con-

tact the probation department. Meanwhile,

I suggest that in order to facilitate this,

the defendants report there today so that

they can commence their report.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

Jan 28 1974

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

EDWARD W. GREENBANK,

OPINION

)

)

Vv. ; No. 73-2503

Defendant-Appellant.

Appeal from the United States

District Court for the

District of Arizona

Before: WRIGHT and CHOY, Circuit Judges,

and EAST, Senior District Judge*

EAST, Senior District Judge:

The defendant-appellant, Edward W.

Greenbank (Greenbank), William T. Laakman

and Betty Rose Laakman (the Laakmans) were

indicted on one count of violating 21 U.S.C.

*Honorable William G. East, Senior United

States District Judge for the District of

Oregon, sitting by designation.

§841(a) (1) and (b) [possession with intent

to distribute a quantity of a controlled

substance] and on one count of violating

21 U.S.C. §846 [conspiracy].

Greenbank and the Laakmans were joint-

ly tried before a jury on April 17 through

19, 1973, and Greenbank was found guilty

on both counts as charged. The district

court had Greenbank's motion for judgment

: of acquittal for both counts under advise-

ment, and thereupon granted the motion as

to the possession count and entered appro-

priate order. Greenbank was sentenced to

custody on the conspiracy conviction and

appeals. We affirm.

Greenbank's assignments of error are

consolidated as follows:

1. The District court should have

granted defendant's motion for a verdict

of acquittal on the conspiracy charge be-

cause of the total enmeshment, from begin-

ning to end, of a paid government agent in

the criminal enterprise culminating in a

denial of due process under the United

States Constitution.

2. The cumulative effect of the nu-

merous instances of prosecutorial miscon-

duct throughout the trial constituted plain

error and a new trial should have been

granted, notwithstanding the fact that de-

fense counsel withdrew his motion for a

mistrial prior to closing argument.

3. The sentence imposed by the dis-

trict court judge was invalid in that it

was based on an erroneous and misleading

presentence report.

Assignment of Error 1:

Greenbank candidly concedes in his

briefs that the rationale and holding of

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

(April 24, 1973) (Russell-Supreme Court),

forecloses any defense of entrapment under

the facts of this case. In fact, Greenbank

states "he never asserted entrapment as a

A-9

defense." Yet it is fair to note that the

jury trial was had during the advent of

Russell-Supreme Court and while the ratio-

nale and holding of United States v. Russell,

459 F.2d4 671 (9th Cir. 1972) (Russell-Cir-

cuit Court), was viable. It is manifest

from the district court's jury instruction

requested by Greenbank and objected to by

the government that Greenbank's theory of

defense throughout the trial and submission

to the jury was based upon the broadened

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

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

principle of the defense of entrapment as

enunciated in Russell-Circuit Court, supra,

viz:

"that a defense to a criminal

charge may be founded upon an in-

tolerable degree of governmental

participation in the criminal en-

terprise.”

That view or concept makes the essen-

tial element of the defense turn on a mea~-

suring or calibration of the type and

A-10

degree of governmental involvement in the

criminal venture, rather than absence on

the part of the accused a predisposition

to commit the crime. It was that very con-

cept that was flatly rejected in Russell-

Supreme Court. Furthermore, that authority

announced "the defense is not of a consti-

tutional dimension" and dropped “the matter

where it was left by the Court in Sherman:

'The function of law enforcement

is the prevention of crime and the

apprehension of criminals. Mani-

festly, that function does not in-

Clude the manufacturing of crime.

Criminal activity is such that

stealth and strategy are necessary

weapons in the arsenal of the po-

lice officer. However, "A differ-

ent question is presented when the

criminal design originates with

the officials of the government,

and they implant in the mind of

an innocent person the disposition

to commit the alleged offense and

induce its commission in order

that they may prosecute."' Id.,

at 372, quoting Sorrells v. United

States, 287 U.S., at at

and 435.

"It is only when the government's

deception actually implants the

criminal design in the mind of the

defendant that the defense of

A-1l

SIAC ep ae TORE tea ITE Bt WENN E EB = ER i ERO

2 EEL EEE ENTS PME

SEHD HE:

OSs apis Reap NS

entrapment comes into play” at 436.

It follows then that Greenbank's posi-

tion on appeal levels with the principle

contention urged in Russell-Supreme Court,

at 431 and 432, namely" "the level of [the

government's agent] involvement in the [en-

terprise] was so high that a criminal pros-

ecution for the [illegal drug traffic] vio-

lates the fundamental principles of due

process," and he seeks shelter in the Court's

observation, "[w]hile we may someday be pre-

sented with a situation in which the conduct

of law enforcement agents is so outrageous

that due process principles would absolutely

bar the government from invoking judicial

processes to obtain a conviction, cf. Rochin

v. California, 342 U.S. 165 (1952)."

It appears in the evidentiary record

that:

One Gonzalez was a known trafficker in

illegal drugs with an arrest record. He

had turned informer to the government and

, a bo)

received periodic compensation for his ser-

vices;

Gonzalez had met on several occasions

with parties to the enterprise, learned of

a proposed $10,000 marijuana transaction

and contacted an agent of the United States

Customs Service;

Gonzalez infiltrated the enterprise,

gave time-to-time progress reports to

agents and participated therein to the ex-

tent of acting as a carrier of the contra~

band and money involved; however, he played

no part in finding or producing the source

or a purchaser of the contraband; and

Greenbank, a Gill and a Conde were

active in the enterprise before Gonzalez

appeared on the scene and became active,

and had not Gonzalez played the role of a

carrier other persons were available for

that purpose.

Gonzalez was not as Greenbank contends

a governmental generated vortex which

A-13

pulled an innocent into an illegal enter-

prise, rather he was a small disloyal cog

turning within the illegal venture under

the power of the predisposed mind and free

hands of Greenbank and his co-conspirators.

We are satisfied, as was the jury, that

Greenbank "was not an unwary innocent’ but, ~

indeed, "an unwary criminal."

"Thus in drug-related offenses law

enforcement personnel have turned

to one of the only practicable

means of detection: the infiltra-

tion of drug rings and a limited

participation in their unlawful

present practices. Such infiltra-

tion is a recognized and permissi-

ble means of apprehension; if that

be so, then the [performance of a

service which] the drug ring re-

quires must, aS a general rule,

also be permissible. For an agent

will not be taken into the confi-

dence of the illegal entrepreneurs

unless he has something of value

to offer them. Law enforcement

tactics such as this can hardly

be said to violate ‘fundamental

fairness' or ‘shocking to the uni-

versal sense of justice,’ Kinsella,

supra." Russell-Supreme Court,

at 432.

We conclude that no expressed or im-

plied concept of federal due process was

violated by the government in making use

of the evidentiary fruits obtained through

Gonzalez's government countenanced infil-

tration and limited participation in the

ongoing illegal enterprise. The assignment

of error is without merit.

Assignment of Error 2:

The prosecutorial misconduct complain-

ed of can be broken down into three areas:

a. The display of a hand gun by a

government witness and the govern-

ment attorney in full view of the

jury, and testimony of a govern-

ment witness regarding the same

weapon which was exhibited in a

photographic exhibit.

b. The prejudical prosecutor's

statement during trial of “fear

for [Gonzalez's] life," and

c. Prejudical statements during

closing argument of the prosecutor

in praise of Gonzalez.

A-15

Area a: The gun and photograph proved

to be utterly immaterial to the charges and

were refused admission in evidence. The

courtroom appearance and use of the arti-

cles were the subjects of a defense motion

for a mistrial. However, before a ruling

thereon defense counsel advised the dis-

trict court,

"I'm in a most difficult situation.

I feel compelled to withdraw the

motion for mistrial for the reason

that the jury which we have, the

complexion of the case at the

| present time, I think is as bene-

ficial to my client as I could

ever have it.

"However, I don't think, although

there are cases on mistrials, and

not being able to refile the case

and try it again, I don't think

this case is at this time in that

complexion. So I have consulted

with co-counsel. I have consulted

' with my knowledgeable law clerk,

; and I would ask the clerk if I may

withdraw my motion for mistrial,

much as I would---"

"THE COURT: Very well. The mo-

tion for mistrial is withdrawn.

"Now when it comes time to in-

struct the jury, do you want me

to make any reference to it, and

A-16

to tell them the gun has nothing

to do with the case, and that they

are to disregard it entirely?”

Area b: The prosecutor's statement of

"fear for his life” entered the record dur-

ing cross-examination of government witness

Gonzalez as follows:

"Q. Okay. And where are you stay~

ing here while you're here?"

"(PROSECUTOR:] Objection, your

Honor. This man is an informant."

"Q. Are you staying with Mr.

Seaver? [Customs Service Agent.]"

"[PROSECUTOR:] There is possible

fear for his life."

"“[COUNSEL:] I'11 withdraw it."

"[PROSECUTOR:] I am going to ob-

ject."

"THE COURT: Sit down. Sustained."

“[COUNSEL:] I move for a mistrial

on the comments of the prosecutor,

your Honor.

"Your Honor, I'll withdraw the mo-

tion for mistrial. I don't want

to go through that.”

"THE COURT: Very well, proceed."

Greenbank concedes that the voluntary

A-17

—y——

withdrawal of the motions for mistrial fore-

closes him of an appealable order for as-

signed error. However, he would fault the

district judge for plain error in non sua

sponte declaring a mistrial on the very

grounds he had expressly abandoned during

trial. We understand the reasons for hind-

sight judgments, but scorn such double

dealing on the district court.

Area c: The tenor of some of the

statements of the prosecutor during clos-

ing argument are challenged as being of

high prejudicial scale. It is fair to say

that in the course of the argument Gonzalez

was applauded for his prior service to law

enforcement officers, his effectiveness as

an informer was complimented and his help

in controlling drug traffic was commended.

However, we are mindful that closing argu-

ment was a reply to defense counsel's argu-

ment wherein Gonzalez was bitterly charac-

terized as "a rat." As most trial lawyers

2

know, advocacy is not bound to wearing kid

gloves or pulling punches.

We are content to state that the rele-

vant evidence in the record was sufficient

to support the inferences respective coun-

sel in advocacy urged the jury to accept.

Greenbank also complains in his reply

brief about the following closing argument

comment :

"All you're concerned with is

whether the people here are guilty

or not guilty, because counsel

knows if we went into other facts

concerning the activities of Gill

and Conde, it would be outside the

record and it would be objectiona-

ble, so we're not going to tell

you all the things we know about

them because we can't."

Whether this reference was based upon

the prosecutor's personal knowledge apart

from evidence in the record as dealt with

in Orebo v. United States, 293 F.2d 747

9th Cir. 1961), is beside the point. Mani-

festly, the reference is not as to probable

guilt of Greenbank as it deals with conduct

.

a

of Gill and Conde and not Greenbank.

We conclude that while the challenged

prosecutor's statements, tactics and con-

duct are seemingly unexplainable, they in

compounded effect do fall short of a bane

of a fair trial for Greenbank. See Todorow

v. United States, 173 F.2d 439 (9th Cir.

1949); cf£. United States v. Cumberland, 200

F.2d 609 (3rd Cir. 1952), and Kotteakos v.

United States, 328 U.S. 750 (1946).

To fault a district court for record

| plain error on an issue of law is one thing,

but to fault on undisclosed and vague pos-

sible prejudicial jury exposure to irrele-

vant evidence and counsel's statements is

quite another. The district court has wide

discretion from his ringside observation

to act and conduct an orderly fair trial

for an accused. We note from the record

timely and direct judicious warnings and

admonitions to the jury following each of

the incidents. We determine from our per-

A-20

usal of the record that there is an abun-

dance of evidence of Greenbank's guilt and

no substantial right of Greenbank was ad-

versely affected as challenged and urged

in assignment of error 2. The record is

free of plain error.

Assignment of Error 3:

The record discloses that defense

counsel examined the presentence report

and made independent inquiry of sources.

The district court heard counsel's objec-

tions to and explanation of reported mate-

rial. The record is devoid of any fact

which was not relevant in the determining

of the discretionary and lawful sentence

entered. The assignment is without merit.

AFFIRMED.

>. oe he |

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Defendant-Appellant.

UNITED STATES OF AMERICA, ) FILED

) Feb 28 1974

Plaintiff-Appellee, )

. )

Vv.

)

)

)

Appeal from the United States

District Court for the

District of Arizona

Before: WRIGHT and CHOY, Circuit Judges,

and EAST, Senior District Judge*

ORDER

The defendant-appellant's petition

for rehearing is denied.

*®Honorable William G. East, Senior United

States District Judge for the District of

Oregon, sitting by designation.

ge spemanarer

CERTIFICATE OF SERVICE

STATE OF ARIZONA

ss.

County of Maricopa )

The undersigned, a Notary Public in

and for the County of Maricopa, State of

Arizona, hereby states that he hand-

delivered three (3) copies of the fore-

going Petition for Writ of Certiorari to:

William C. Smitherman, Esq.

UNITED STATES ATTORNEY FOR

THE DISTRICT OF ARIZONA

Room 5000

230 N. lst Ave.

Phoenix, Arizona 85025

and three (3) copies were placed in the

United States Post Office at Phoenix, Ari-

zona with Air Mail Postage fully prepaid

and duly addressed as follows:

The Hon. Robert Bork

U. S. Solicitor General

Department of Justice

10th and Constitution Ave., N.W.

Washington, D.C. 20530

The above-mentioned service being ac-

complished on the 26th day of March, 1974.

/s/ William H. Howard

Notary Public

My commission expires: [SEAL]

May 28, 1974