Petition for a Writ of Certiorari — Ruggiero v. United States

IN THE

Supreme Court of the United States

OctToBER TERM, 1973

N. €3- 1920

ANGELO RucaiER0, Petitioner,

-

Vv.

UnNItTep STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

EUGENE GRESSMAN

1828 L Street, N. W.

Washington, D.C. 20036

Roy M. Conn

MicHAEL Rosen

39 East 68th Street

New York, New York 10021

Counsel for Petitioner

2 =

June 21, 1974

Press or Byron S. Apams Printinc, Inc., WASHINGTON, D. C.

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Three questions are presented on this appeal

from a conviction for stealing an interstate cargo

of freight:

(1) Whether the Third Cireuit violated due

process principles in ignoring the issues decided by

the trial court and affirming the conviction on a

ground rejected by the trial court;

(2) Whether the trial court effected an uncon- _

stitutional amendment of the indictment by resting

conviction on an element of the crime not alleged

by the grand jury;

(3) Whether the prosecution was barred under

the Fifth Amendment because of outrageous con-

duct by a government agent.

ConSsTITUTIONAL AND Statutory Provisions INVOLVED ..

STATEMENT OF THE CASB . 2... 2... ccc ccc ccc cece

‘A. The various shifts in the alleged crimes ......

B. The activities of the government’s informer ..

Reasons For GRANTING THE WRIT .................0-.

1. A constitutional due process problem is created

by the Third Circuit’s action in appraising and

affirming the conviction in disregard of the statu-

tory issues as determined by the District Court

2. Resting petitioner’s conviction on the proof that

he stole cargo from a ‘‘motortruck”’ is in direct

conflict with this Court’s decisions respecting

the constitutional invalidity of amending a grand

SE = 7 ee ayy pele

12

PE Got els Crane v

il Index Continued

Page

3. Important problems are here raised, in light of

this Court’s recent Russell decision, as to the

raising of due process claims respecting outrage-

ous conduct by governmental agents ..........

IN 9 ce ca Cadivanccovkaibvaveeddicekenaasens 21

APPENDIX:

Court of Appeals judgment and orders .......... la

District Court memorandum opinion and order .. 3a

CITATIONS

CaSEs:

Bie, Te ee, Te OL. BED odds tc ccksccecaeae 14

Cole v. Arkansas, 333 U.S. 196 (1948) ........... 12, 13, 14

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

BE cs cnkaiineiedasin is klk edna yaaa Rose oh 8 19

Rochin v. California, 342 U.S. 165 (1952) ............ 20

Russell v. United States, 369 U.S. 749 (1962) ........ 14

Stirone v. United States, 361 U.S. 212 (1960) ..... 14, 15, 16

United States v. Allegrucci, 299 F.2d 811 (8rd Cir.

MG Lo ccet occa kee ena cauk sia bua s maces kee 15

United States v. Manuszak, 234 F.2d 421 (3rd Cir.

EE sa atiersy ae cance nue cunt aewenerecurs 16

United States v. Russell, 411 U.S. 423 (1973) ..11, 18, 19, 20

CONSTITUTION AND STATUTE:

Fifth Amendment, U.S. Constitution ............... 2

ey Ss NE OE 6b ceded ecb snc ceyswdencecs 3, 5, 16

RASA LSC NRE ARB EL OI TE

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

No.

ANGELO RuaaiEro, Petitioner,

Vv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The petitioner, Angelo Ruggiero, respectfully re-

quests that a writ of certiorari issue to review the

judgment order, entered on February 20, 1974, by the

United States Court of Appeals for the Third Circuit

in this proceeding.

OPINIONS BELOW

The judgment order of the Third Circuit, reprinted

in the appendix hereto (p. 1a. infra), is reported at 492

F.2d 1239, sub nom. United States v. Farley.

The memorandum opinion and order of the United

States District Court for the Middle District of Penn-

sylvania, reprinted in the appendix hereto (p. 3a,

infra), has not yet been reported.

\

2

JURISDICTION

Following a non-jury trial, petitioner was found

guilty on December 17, 1972, by the District Court of

the theft of goods from a shipment of freight in inter-

state commerce, in violation of 18 U.S.C. § 659 and § 2.

The District Court overruled certain post-trial motions

on May 15, 1973, issuing the memorandum opinion that

appears in the appendix hereto. The District Court’s

final judgment and commitment were entered on July

26, 1973.

On February 20, 1974, the Third Circuit issued its

judgment order affirming the conviction. On March

21, 1974, the Third Circuit granted leave to file a peti-

tion for rehearing out of time, allowing 20 additional

days from March 21 for such a filing. The petition for

rehearing was duly filed within the period specified by

the Third Cireuit. And on April 24, 1974, the Third

Circuit denied the petition for rehearing on its merits.

See p. 2a, infra.

On timely application, Mr. Justice Brennan on May

13, 1974, signed an order extending the time for filing

this petition to and including June 22, 1974.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a federal appellate court, consistently

with the principles of constitutional due process and of

proper administration of criminal justice, can review

a federal criminal conviction by ignoring the issues

determined in the trial court and by affirming the con-

viction on a ground rejected by the trial court, sitting

without a jury.

3

2. Whether an unconstitutional amendment of an in- «

dictment was effected by the action of a federal trial

court in (a) finding that the Government had failed to

prove that an interstate cargo had been stolen from a

‘‘station’’ in violation of 18 U.S.C. '§ 659, as alleged by

the grand jury, and (b) resting conviction on proof

that the cargo had been stolen from a ‘‘motortruck”’ in

violation of 18 U.S.C. § 659, which had not been alleged

by the grand jury.

3. Whether a federal prosecution should be barred

under the Fifth Amendment, or whether the defense of

entrapment should be allowed, where (a) a government

informer plays a more than passive role in the commis-

sion of the crime, directing, planning and helping exe-

cute the crime, (b) the defendant has denied his guilt,

and (c) the defendant has not been shown to have

played an active role with the other co-defendants par-

ticipating with the informer in the commission of the

offense.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

United States Constitution, Amendment V:

‘*No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, ... nor shall

any person... be deprived of life, liberty, or prop-

erty, without due process of law; one

United States Code, Title 18, § 659:

‘*Whoever embezzles, steals, or untawfully takes,

carries away, or conceals, or by fraud or deception

obtains from any railroad ear, wagon, motortruck,

or other vehicle, or from any station, station house,

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4

platform or depot or from any steamboat, vessel,

or wharf, or from any aircraft, air terminal, air-

port, aircraft terminal or air navigation facility

with intent to convert to his own use any goods or

chattels moving as or which are a part of or which

constitute an interstate or foreign shipment of

freight or express; ...

‘‘Shall in each ease be fined not more than $5,000

or imprisoned not more than ten years, or both; but

if the amount or value of such money, baggage,

goods or chattels does not exceed $100, he shall be

fined not more than $1,000 or imprisoned not more

than one year, or both.”’ |

STATEMENT OF THE CASE

Petitioner, Angelo Ruggiero, and three others—

Farley, Flammia and Rini—were indicted on a charge

of the theft of goods from a shipment of freight in inter-

state commerce, in violation of 18 U.S.C. § 659 and § 2.

In pertinent part, the single-count indictment alleged:

‘‘That on or about the 21st day of June, 1971, at

North Lebanon Township, Lebanon County, Com-

monwealth of Pennsylvania, ... Angelo Ruggiero

did knowingly, wilfully and unlawfully and with

intent to convert to their own use, steal, take and

carry away from a station, station house and depot,

chattels of a value in excess of $100.00, that is 1426

cases of foodstuffs, which were moving as, and con-

stituted an interstate shipment of freight .. .”

[Emphasis added.]

On December 15, 1972, the District Court, sitting with-

out a jury, adjudged petitioner guilty of this charge,

and he was subsequently sentenced to five years im-

prisonment. The Third Circuit, on February 12, 1974,

— the District Court’s judgment and commit-

ment. :

5

A. The Various Shifts in the Alleged Crime

Section 659 of Title 18 makes it unlawful to steal or

carry away an interstate shipment of freight from,

inter alia, (1) ‘‘any railroad car, wagon, motortruck,

or other vehicle,’ or (2) ‘‘any station, station house,

platform or depot.’? In this case, the grand jury

charged only that the petitioner and his co-defendants

hed stolen the freight shipment ‘‘from a station, station

house and depot.’’? The indictment did not charge that

the shipment had been stolen from a ‘‘motortruck, or

other vehicle.”’

Petitioner’s trial and conviction by the District Court

were premised on the grand jury’s allegation that the

theft had been ‘‘from a station, station house and

depot.’’ But in the course of the District Court’s mem-

orandum opinion denying various post-trial motions

filed by petitioner, the District Court found that the

evidence produced by the Government had not estab-

lished that the theft occurred from a station, station

house or depot. See p. 6a, infra.

The District Court simultaneously found that the evi-

dence did show that ‘‘an unlawful taking from a ‘motor-

truck’ occurred.’’ See p. 8a, infra. There was thus

found a variance between the grand jury’s charge re-

specting a ‘‘station’’ and the Governments proof at

trial respecting a ‘‘motortruck.’’ The District Court,

however, labelled the variance a harmless error, and

denied petitioner’s claim that there had been an un-

constitutional constructive amendment to the indict-

ment.

The evidence giving rise to this variance showed that

an interstate shipment of spaghetti sauce had been con-

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6

tained within the trailer of a motortruck, en route from

Delaware to New York. The truck was left parked on a

private lot (owned by Lesher’s Mack Truck Sales and

Service Co.) for a weekend in Lebanon, Pennsylvania,

while the driver visited at his home near Lebanon. The

owner of the shipment and the employer of the driver,

Gioia Specialty Foods, Ine., was not shown to have

known that the truck would be parked on that par-

ticular private lot; nor had it authorized the driver to

park there. And there was no evidence that Gioia Spe-

cialty Foods had made any prior arrangement with the

private lot owner to utilize the lot to park its trucks.

The lot owner simpy permitted parking on the lot as

an accommodation to various truck drivers stopping

at Lebanon en route to other destinations.

The theft occurred on a Sunday evening on the week-

end in question. The trailer and its contents were re-

moved from the private lot by two of petitioner’s co-

defendants. Those two co-defendants had proceeded for

about two miles before they were stopped and arrested.

The goods were not removed from the truck at any

point. The petitioner played no role in removing the

truck from the private lot; his alleged relationship to

the crime was that of an aider and abettor.

These facts led the District Court to conclude that

the private parking lot was not a “‘station”’ or “‘station

house”’ as those terms are used in § 659. See pp. 7a-8a,

infra. The court accordingly rejected the Government’s

contention that a truck is ‘‘stationed’’ wherever it is

parked, and that any place that the driver might have

parked this truck during the weekend interlude consti-

tuted an interstate facility or “‘station.’’ To be such a

facility or station, said the court, the facility “‘at the

PP ERTIES FOE A Ry OS ER ERA

7

least must be owned, leased or authorized by the firm

engaged in transportation in interstate commerce and

used in the normal course of its business.”’ See p. 8a,

infra.

Petitioner’s conviction was thus reaffirmed by the

District Court on the new theory that the proof showed

that the theft occurred from a ‘‘motortruck’”’ rather

than from a “‘station,”’ the variance being deemed im-

material. But on the appeal, the Third Cireuit rejected

the District Court’s new theory of the crime. In foot-

note 3 of its judgment order, the Third Cireuit without

elaboration stated: ‘‘We believe that it is not an un-

reasonable construction to conclude, under the cireum-

stances here, that there was a theft from a ‘station.’ ”’

See p. 2a, infra. Petitioner’s conviction was accordingly

affirmed on the appeal on a basis rejected by the Dis-

trict Court, the trier of the facts.

B. The Activities of the Government's Informer

The Government’s chief witness was one Robert

Bush, a conceded informer and an alleged agent provoe-

atur. Bush regarded himself as working with the F.B.L.,

and because of the information that Bush fed to the

F.B.L, all of the actions surrounding the taking of the

trailer truck from the parking lot were under the sur-

veillance of F.B.I. agents and other law enforcement

men.

Petitioner’s alleged involvement in the scheme was at

most tangential and highly debatable, the District Court

calling it ‘‘the subject of a serious factual dispute.”

See p. 13a, infra. That dispute was resolved by the court

by disbelieving petitioner’s testimony and by crediting

the contrary testimony of Bush, the informer. At the

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8

core of this factuai dispute was an alleged meeting be-

tween petitioner and Bush in a motel on the date of the

hijacking, in the midst of the co-defendants’ futile ef-

forts to start the parked truck. Bush, despite an initial

difficulty in identifying petitioner as the one with whom

he spoke, testified that petitioner had there offered him

extra money if he would help get the truck started.’

Petitioner denied that any such conversation took place.

Bush not only helped get the truck started but played

a key role in the development and execution of the entire

hijacking operation. Bush and the co-defendant Farley

had originally met each other in 1970 in New York, at

which time Bush agreed to deliver to Farley for hijack-

ing a truckload of Sears batteries consigned to Bush.

That theft, as to which Bush had pre-arranged F.B.I.

surveillance, did not come off, since Farley did not be-

lieve the batteries were marketable. Farley and Bush

remained in contact with each other through June of

1971. During that time, according to Bush, Farley re-

peatedly asked Bush to point out other truckloads of

commodities that could be stolen in transit.

At a meeting with the three co-defendants on June 19,

1971, petitioner not being present, Bush told the three

that he could point out a truckload of Bulova Aecutron

watches. On the following day, Bush came to a financial

agreement with the co-defendant Flammia. Bush re-

ported all these arrangements to the police, as well as

to the truck driver. As Bush knew, the truck contained

spaghetti sauce, not Acutron watches. He instructed

’ Bush testified that he had never seen or spoken to the peti-

tioner Ruggiero before this motel meeting on June 20, 1971, the

date of the hijacking. Bush did not know where petitioner fitted

into the hijacking operation.

4 RDCCGPRIEMED ATO A A te oe

9

the driver to leave the truck parked over the weekend

at the private lot in Lebanon and to stay away from

the truck during that time. The F.B.I. was made fully

aware of this plot and knew that Bush had lied to the

co-defendants about the contents of the truck.

At another meeting with the three co-defendants,

Bush was paid $2,000 by Flammia and was promised

more money after the goods were delivered in New

York. Bush also received $400 from the F.B.I. shortly

: after the events in question.

The three co-defendants were unable to start the

truck when they arrived at the parking lot, despite

Bush’s assistance. It was at this point that the con-

tested meeting occurred between Bush and the peti-

tioner. Bush thereupon secured the stealing of another

tractor and substituted it for the one which had been

attached to the trailer containing the spaghetti sauce.

The co-defendants thus were able to drive the truckload

away from the parking lot. The F.B.I. agents and local

police, who had the entire operation under surveillance,

brought the project to an end by stopping and arresting

the co-defendants after they had driven the truckload

several miles.

The co-defendant Farley testified that the whole

project came about at the instance of Bush, who invited

Farley to see him because he had something that would

take Farley out of his financial difficulties (536a).

Farley stated that Bush had offered to point out the

truckload of Acutron watches at the June 19 meeting

? The co-defendants Flammi and Rini chose not to testify at the

trial. The petitioner and Farley were the only defendants who

took the stand.

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10

for $5000 (538a), and that the final arrangement was

that Bush was to get $5,000 in advance and a later bal-

ance of $95,000 (572a). Each of the three co-defendants

(Farley, Rini and Flammia) was to receive $100,000

from the operation (572a). Arrangements were then

made to meet the next day at a diner near Lebanon,

from which the hijacking party would proceed to the

parking lot (541a).

The petitioner Ruggiero was not involved in any of

these meetings between Bush and the three co-defend-

ants. Indee1, Farley did not even know the petitioner.

Only Rini knew petitioner, and Rini cautioned Farley

not to mention anything in front of the petitioner

(580a). According to the petitioner, he had met Rini by

coincidence in a New York bar and told him that he

wanted to go to Pennsylvania to pick up his wife and

children, but had no driver’s license. Rini told peti-

tioner that he happened to be going to Pennsylvania

the next day on business and offered to drive petitioner

first to where Rini was going and then to petitioner’s

destination in the Poconos. (593a). It was petitioner’s

testimony that he had no knowledge of, or interest in,

the hijacking operation, and that his presence near the

operation was an innocent coincidence (602a, 608a).

Petitioner’s account of his presence in Lebanon was

found by the District Court to be unworthy of belief

(651la).

Based upon the foregoing facts, the claim of entrap-

ment was raised by the petitioner in seeking a judgment

of acquittal. That claim was denied by the District

Court in its post-trial memorandum opinion (see pp.

18a-24a, infra), and that denial was expressly affirmed

by the Third Circuit on the appeal. The District Court

Fe POI D SARE Ny 5 aso ee ORN OR.

11

premised its denial of the entrapment defense upon

the following considerations:

(1) Since petitioner had denied his guilt and his

involvement in the crime, it would be inconsistent for

him now to contend that he was involved in the criminai

enterprise but was impermissibly induced to participate

by the overreaching of a government agent. See pp.

18a-19a, infra.

(2) Petitioner was here found to face ‘‘another

serious hurdle”’ in that ‘‘[t]here is nothing in the rec-

ord indicating the circumstances under which [peti-

tioner] Ruggiero may have become involved in this

erime.”’ See p. 21a, infra. Nothing indicated that peti-

tioner had any direct contact with the informer Bush

before the date of the hijacking or that he was directly

induced by the acts or remarks of Bush.’ In such cir-

cumstances, said the court, ‘‘it is still unclear whether

Ruggiero can raise the defense of entrapment.’’ See

p. 22a, infra.

(3) But the District Court agreed that the entrap-

ment issue could be raised by petitioner on his motion

for judgment of acquittal if the Government’s evidence

established the existence of entrapment as a matter of

law. But on that basis, the District Court could find no

entrapment. In reliance on this Court’s decision in

United States v. Russell, 411 U.S. 423 (1973), the Dis-

trict Court concluded that none of petitioner’s co-

defendants had been entrapped since they had pre-

viously manifested an unsolicited predisposition to steal

* The court stated that it ‘‘would have to surmise that Farley,

Flammia or Rini conveyed Bush’s remarks to Ruggiero before we

could conclude that Ruggiero might have been indirectly induced

by the acts of Bush.’’ See pp. 21a-22a, infra.

cian aciadiionasonnaaeal

12

cargo. Said the court: ‘‘The testimony of Bush clearly

establishes that the criminal design originated with

Ruggiero’s co-defendants and not with Bush. . . they

were not innocent persons corrupted by the overreach-

ing of governmental agents.’’ See pp. 22a-23a, infra.

While Bush was found to have played more than a

passive role in the commission of the crime, the court

rejected any claim that his actions shocked ‘‘the uni-

versal sense of justice.”” See p. 24a, infra.

(4) Finally, ‘“‘under the present record it would be

incongruous to find that Ruggiero was entrapped with-

out first concluding that his co-defendants were en-

trapped. If the defense fails as to the latter [as the

court so held] it must fall as to the former.”’ See p. 22a,

infra.

REASONS FOR GRANTING THE WRIT

1. A constitutional due process problem is created by the Third

Circuit's action in appraising and affirming the conviction

in disregard of the statutory issues as determined by the

District Court.

An important ingredient of constitutional due proc-

ess is a defendant’s right to have his conviction ap-

praised on appeal ‘‘on consideration of the case as it

was tried and as the issues were determined in the trial

court.’’ Cole v. Arkansas, 333 U.S. 196, 202 (1948). As

that principle was applied in Cole, a state supreme

court was held precluded from affirming convictions

as though the defendants had been tried and convicted

for having violated § 1 of a state statute, when in fact

the defendants had been charged, tried and convicted

only for violating § 2 of the same statute.

Here we have somewhat more bizarre fluctuations

among the charge, the trial, the conviction and the

Noy ED ee RE

13

affirmance. But the constitutional principle epitomized

by Cole v. Arkansas would seem no less. demanding,

particularly when translated into a rule of administra-

tion of criminal justice in the federal courts.

This petitioner was charged and tried in the District

Court on the grand jury’s allegation that he engaged in

the theft of an interstate cargo only from a ‘‘station”’’

or ‘‘station house,’’ in violation of 18 U.S.C. § 659. But

the District Court, sitting without a jury, found that

the Government had not proved that the facility from

which the cargo was stolen—which facility is an essen-

tial element of the offense—was a ‘‘station”’ or a ‘‘sta-

tion house.’’ Rather, the District Court concluded that

the Government’s proof showed that the theft occurred

from a ‘‘motortruck,’’ a facility not mentioned in the

indictment. The District Court, while denying that this

variance between the charge and the proof was material

or constituted an unconstitutional amendment of the

indictment, proceeded to rest the petitioner’s guilt on

the proof that he had stolen the cargo from a ‘‘motor-

truck.”’ In effect, the District Court acquitted the peti-

tioner, for lack of proof by the Government, of the

charge that he stole from a “station” or ‘station

house.”’

Yet the Third Circuit did not appraise the District

Court’s shift to the ‘‘motortruck”’ theory of guilt, with

all of its constitutional problems of variance as frankly

discussed by the District Court. The Third Circuit ig-

nored the issues as ‘‘determined in the trial court,”

Cole v. Arkansas, supra, and expressly rested its affirm-

ance on its own belief—contrary to the District Court’s

belief on which the conviction rested—‘that it is not an

unreasonable construction to conclude, under the cir-

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cumstances here, that there was a theft from a ‘sta-

tion.’ ’’ See p. 2a, fn. 3, infra.

Was not petitioner thereby deprived of his constitu-

tional due process right to have his conviction appraised

on the appeal in terms of the critical fact issues as de-

termined by the District Court? Does not the Cole v.

Arkansas principle apply to federal appellate courts?

Does not the proper administration of federal criminal

justice demand that the Third Circuit’s action in this

regard be reviewed and reversed ?

To put one final question in this regard: For what

crime does petitioner now stand as convicted, stealing

from a ‘‘station”’ or stealing from a ‘‘motortruck’’?

2. Resting petitioner’s conviction on the proof that he stole

cargo from a “motortruck” is in direct conflict with this

Court’s decisions respecting the constitutional invalidity

of amending a grand jury indictment.

To the extent that the District Court’s determination

of guilt respecting the takin; from a ‘‘motortruck”’ can

survive the Third Circuit’s improper review and revi-

sion of the conviction, that determination comes

squarely into conflict with two controlling decisions of

this Court: Ex parte Bain, 121 U.S. 1 (1887), and

Stirone v. United States, 361 U.S. 212 (1960). See also

Russell v. United States, 369 U.S. 749, 770-771 (1962).

Bain held that a trial court cannot, consistent with

the Fifth Amendment, formally and literally strike an

essential portion of the indictment as returned by the

grand jury.* Stirone held that a court can neither

*In Bain, the trial court had struck out the words ‘‘Comptroller

of the Currency and’’ from the language of the indictment charg- °

ing the making of false statements ‘‘with intent to deceive the

Comptroller of the Currency and the agent appointed to examine

the affairs of said association.’’

15

change nor add to the indictment by way of admission

of evidence of an alternative elemer:t of the crime that

the grand jury has not alleged.’ And Stirone further

made it clear, 361 U.S. at 217-218, that:

‘‘Although the trial court did not permit a for-

mal amendment of the indictment, the effect of

what it did was the same . . . While there was a

variance in the sense of a variation between plead-

ing and proof, that variation here destroyed the

defendant’s substantial right to be tried only on

charges presented in an indictment returned by

the grand jury. Deprivation of such a basic right

is far too serious to be treated as nothing more than

a variance and then dismissed as harmless error

... The very purpose of the requirement that a man

be indicted by a grand jury is to limit his jeopardy

to offenses charged by a group of his fellow citizens

acting independently of either prosecuting attorney

or judge.”’

In the instant case, the petitioner was charged by the

grand jury with a specilic kind of violation of 18 U.S.C.

§ 659. That section has been described as ‘‘a technical

one and requires the Government to prove the allega-

tion that the goods were, stolen from one of various

enumerated places.’’ United States v. Allegrucci 299

F.2d 811 (3rd Cir. 1962). The designation in the in-

dictment of one of the various facilities or places enum-

5In Stirone, the indictment only charged the defendant with

having caused the movement of sand in interstate commerce ‘‘from

outside the State of Pennsylvania into the State of Pennsylvania.’’

The trial court admitted evidence and charged the jury respecting

(1) the movement of sand into Pennsylvania from other States

and (2) the shipment of steel from Pennsylvania into Michigan and

Kentucky. Such an introduction of element (2) into the case

was held to create not only a variance but an unconstitutional

amendment of the indictment.

Ct. nr. er Te

16

erated in § 659 is considered to be an essential ingre-

dient of the crime. ‘‘Under this statute, it is not a fed-

eral crime to steal goods from an interstate shipment

of freight unless the goods are taken from one of the

specifically enumerated places or facilities. Other thefts,

although of goods which are part of an interstate ship-

ment, are not federal crimes.’’ United States v. Manu-

szak, 234 F.2d 421, 423 (3rd Cir. 1956).

And so it was of critical importance that the grand

jury carefully mentioned only the “station, station

house and depot”’ designations of § 659 in describing

the crime ascribed to petitioner. He was not charged

with the other federal crimes mentioned in § 659 of

stealing cargo from

(1) ‘‘any railroad car, wagon, motortruck, or other

vehicle,” or

(2) ‘any steamboat, vessel, or wharf,” or

(3) ‘‘any aircraft, air terminal, airport, aircraft

terminal or air navigation facility.”

So, when the District Court found that the Govern-

ment had failed to prove that a ‘‘station’”’ was here in-

volved but that petitioner’s guilt could rest on the Gov-

ernment’s proof that the theft was from a “‘motor-

truck,” did not the District Court in effect amend the

indictment in the Stirone sense? How can the grand

jury be said to have charged petitioner with having

stolen a cargo from a ‘‘motortruck,”’ any more than

from an ‘‘airplane’’? And was not petitioner constitu-

tionally entitled to have his guilt assessed solely in

terms of having stolen from a “‘station’’?

If this was truly an amendment of the indictment, the

Stirone decision invalidates the District Court’s effort

17

to brush the matter aside as a mere variance or harm-

less error. And in the context of a technical statute,

carefully defining various interstate facilities to iden-

tify the federal nature of the crimes, it would not ap-

pear decisive that the facts presented to the grand jury

may have embraced a theft both from a ‘‘station’”’ and a

‘“‘motortruck.’’ Indeed, the grand jury’s omission of a

‘“‘motortruck’”’ from the indictment may reflect the

grand jury’s careful conclusion that the facts did not

warrant charging a theft from a ‘‘motortruck.”’

Moreover, even if the petitioner had adequate notice

of the crime charged, even if he was not surprised or

put in double jeopardy by the evidence as to the two

different facilities, petitioner’s constitutional right

would not appear to be diluted. The essence of that right

is not a double jeopardy matter but a protection against

being tried and convicted on any allegation other than

what is precisely delineated in the grand jury’s indict-

ment.

The District Court exhibited great difficulty and con-

cern with this Stirone constitutional issue. Its opinion,

with which the Third Circuit exhibited no disagree-

ment, demonstrates the continuing problems faced by

lower courts in giving effect to the constitutional prin-

ciple at stake. Many criminal defendants in the federal

courts are faced with charges stemming from statutes

of a multi-segmented nature, where it is easy for a judge

or prosecutor to slide from one statutory clause or sec-

tion to another. But when the grand jury has been pre-

cise in its selection of a statutory clause or phrase, at

what point does an unconstitutional amendment arise ?

Both the lower courts and the countless criminal de-

fendants of the future need and deserve further guid-

ance from this Court.

18

3. Important problems are here raised, in light of this Court's

recent Russell decision, as to the raising of due process

claims respecting outrageous conduct by governmental

agents. — : .

In United States v. Russell, 411 U.S. 423, 436 (1973),

a majority of this Court reaffirmed the established doc-

trine that ‘‘It is only when the Government’s deception

actually implants the criminal design in the mind of

the defendant that the defense of entrapment comes

into play.’’ Any determination that the defendant had

a predisposition to commit the crime and thus was not

an ‘unwary innocent’’ is fatal to an entrapment claim.

The Third Circuit has here affirmed the District

Court’s articulated rejection of petitioner’s entrap-

ment claim, mainly on the authority of the Russell

decision. In so doing, however, the courts below have

either misinterpreted the thrust of Russell or exposed

new and important variations ‘on the Russell decision.

Review of such matters is most Sear To be

specific :

(1) The determination by the District Court that

the co-defendants were predisposed to commit this hi-

jacking effectively precludes the assertion of the en-

trapment defense within the contours of the Russell

decision, But Russell also indicated that even where

there is such a predisposition the conduct of law en-

forcement officers may be so outrageous, so shocking to

_ ‘| “the universal sense of justice,’ that the Due Process

Clause of the Fifth Amendment would bar prosecution.

411 U.S. at 431-432.

But Russell did not attempt to delineate the degree of

outrageousness that must be found to warrant condem-

nation of overzealous government agents. Perhaps that

19

can be done only on a case-to-case basis. But, without

the benefit of any guidelines from this Court, the Dis-

trict Court disposed of the due process claim by (1)

conceding that Bush, the informer, ‘‘played a more

than passive role in the commission of this crime’’ by

disclosing the location of the truck and providing aid

in removing the truck and its contents; and (2) con-

cluding that Bush’s actions involved no greater degree

of governmental involvement than in Russell and hence

did not shock the universal sense of justice. See p. 24a,

infra.®

That Bush played more than a passive role is an un-

derstatement. He actively planned, directed and organ-

ized the whole operation, and agreed to share in the

spoils. Does not Russell contemplate that such actions be

evaluated with more than a comparative glance at the

facts in Russell and by a conclusionary statement that

the reviewing court is not shocked? Should there not be

a more careful analysis of all the factors? What should

be the controlling due process factors? Those are the

questions that this case raises and that the courts below

have not answered.

(2) Does Russell contemplate that such a due proc-

ess claim cannot be raised by a defendant who had

pleaded not guilty? The District Court, viewing the

matter solely in terms of raising the entrapment de-

fense, questioned whether such a defense is consistent

with a denial of the acts constituting the offense

charged. See pp. 18a-19a, infra. Even as to the entrap-

ment defense, at least one Circuit has held that the de-

® While this Court did not assess the Russell facts in due process

terms, those facts arguably, if not clearly, show far less outrageous

conduct than Bush exhibited in this case.

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20

fense is not inconsistent with a not guilty plea. Hans-

ford v. United States, 303 F.2d 219, 221 (D.C. Cir.

1962). But the totally unanswered problem is whether

a not guilty plea precludes the due process claim

referred to in Russell.

(3) Does Russell contemplate that the due process

claim is to be unavailable to a defendant who plays a

minor role, as an aider or abettor, in the commission

of the offense? Does the right of such a defendant to

raise the claim depend upon the viability of the claim

as respects those co-defendants who played major and

active roles in the execution of the crime? Here again,

the District Court provided affirmative answers to these

questions within the framework of the entrapment de-

fense. No answers were provided within the framework

of the due process claim.

It would appear that the due process problem men-

tioned by Russell, if it is found to exist in a particular

ease, would be such as to taint and preclude the entire

prosecution by the Government. Outrageous conduct

by government agents can go beyond what is commonly

known as entrapment and be so shocking as to ‘“abso-

lutely bar the government from invoking judicial proe-

esses to obtain a conviction.’’ Russell, 411 U.S. at 431-

432. Cf. Rochin v. California, 342 U.S. 165 (1952). If

that be true, then, the remoteness of a particular de-

fendant from the particular events constituting the

crime would not appear relevant to his right to protest

the invocation of any judicial processes to obtain his

conviction, whether as a principal or as an aider or

abettor.

These are critical and unanswered questions arising

from the Russell acknowledgement that due process

a EEO

21

claims may survive an unwarranted entrapment de-

fense. They deserve consideration and answer by this

Court.

CONCLUSION

For these various reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

EUGENE GRESSMAN

1828 I. Streei, N. W.

Washington, D.C. 20036

Roy M. Coun

MicHaEL Rosen

39 East 68th Street

New York, New York 10021

Counsel for Petitioner

June 21, 1974