Petition for Writ of Certiorari — Johnson v. United States

¢° LIBRARY.

SUPREME COURT, U. 5 waa sey

October Term, 1974

EDDIE LOUIS JOHNSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

* Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Ovi Lewis

Case Western Reserve Law School

11075 East Boulevard

Cleveland, Ohio 44106

Counsel for Petitioner

THOMAS L. JACOBS |

y 1012 Midwestern National Building

75 Public Square

Cleveland, Ohio 44113

Attorney for Petitioner (Court Appointed)

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

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RESTS RR A SRSSR SAR ONE Oe OO RCN eNO CRO 1

Question Presented ...................... Gach ighlucliebiae usa billings 2

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Argument for Allowance of Writ .............0.2......eteseseeeeeees 4

I. The United States Court of Appeals for the Sixth

Circuit Has Sanctioned Procedures in Direct

Conflict with the Holding of Michelson v. United

States ..... ; +

A. The Michelson Rule of In Camera Inspec-

tion of the Accused’s Arrest Record by the

Trial Court Was Disregarded by the Gov-

IE secenhcahonreecntesnsanienestnhenenenitotansieninnetantinhanbiones 5

II. The United Siates Court of Appeals for the

Sixth Circuit Has Sunctioned an Extreme De-

parture from the Accepted and Usual Course of

Judicial Proceedings As to Call for an Exercise

of This Court’s Power of Supervision ................ 7

III. The Scope of Questioning Allowed Under the

Rules of Michelson Is Presently Subject to Con-

flicting Constructions by the Courts of Appeals

for the Fourth, Fifth and Sixth Circuits .....000...... 9

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TABLE OF AUTHORITIES

Cases

Michelson v. United States, - U.S. 469 (1948) ........

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Shimon v. United States, 352 F.2d 449 (D.C. Cir. 1965) 5

United States v. Gibson, No. CR 72-726 (Ohio 1973) .... 6

United States v. Grimes, 438 F.2d 391 (6th Cir. 1971) 8

United States v. Fox, 473 F.2d 131 (D.C. Cir. 1972) ... 6

United States v. Lewis, 482 F.2d 632 (5th Cir. 1973)

5, 7,9

United States v. Null, 415 F.2d 1178 (4th Cir. 1969) ... 9

United States v. Wells, 437 F.2d 1144 (6th Cir. 1971) ... 5

United States v. Wooden, 420 F.2d 251 (D.C. Cir. 1969) 6

United States v. Rispo, 470 F.2d 1099 (3d Cir. 1973) ... 5

Statutes

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Miscellaneous

5 WIGMoRE, EVIDENCE § 1618 (3d Ed. 1940) 00000... 7

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Annot., 47 A.L.R.2ck URGES (1GGG) nnn ccsceeenceeesnnenee 7

Supreme Court of the United States

a erarerencrs

October Term, 1974

EDDIE LOUIS JOHNSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

OPINIONS BELOW

Petitioner was convicted in criminal action No. CR

73-232 in the District Court of the United States, Northern

District of Ohio, Eastern Division, before the Hon. Judge

Thomas D. Lambros, without opinion.

Appeal was taken to the United States Court of Ap-

peals for the Sixth Circuit in Case No. 74-1149 and the

judgment of conviction was affirmed by Order of the Court

on July 23, 1974, a copy of which is appended hereto.

See, Appendix A.

JURISDICTION

The order affirming petitioner’s conviction was entered

on July 23, 1974. Jurisdiction is conferred upon this Court

by 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the government’s repeated cross-examination

inquiries of an accused’s character witness, revealing to

the jury that the accused had been arrested subsequent

to the offenses being tried on a charge identical to that

tried, prejudicially smeared the accused’s otherwise clean

reputation in violation of the rule of Michelson v. United

States, 335 U.S. 469 (1948).

STATUTE INVOLVED

21 U.S.C. § 841(a) (1970):

Except as authorized by this subchapter it shall

be unlawful for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute or

dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess

with intent to distribute or dispense, a counterfeit

substance.

STATEMENT OF FACTS

A contingently paid, addict-informer, Ted Clark, also

known as “Foots”, testified to two purchases of narcotics

from the petitioner, on August 25, 1972, and October 5,

1972, constituting the only direct evidence of the offenses

charged (Tr. pp. 71, 108, 227-28 [informer was not paid

on a salary basis but on a merit basis]; Tr. pp. 16, 65,

74, 75, 449-50 [informer was addicted tc heroin at a cost

of $18,000.00 to $27,000.00 per year]; Tr. pp. 22, 29, 74

[informer received cash payments from the government

for sales to petitioner] ).

3

Petitioner denied being present at the site of the first

transaction, a busy supermarket, at the time in question

(Tr. pp. 345-47 [petitioner’s denial]; Tr. pp. 120, 375,

394-95 [market was busy at the time in question]). Peti-

tioner’s denial of his presence at the supermarket at the

time in question was corroborated by two employees of

the supermarket (Tr. pp. 376, 394-95).

The second transaction, described only by Ted Clark,

the addict-informer, took place in the home of Julius Had-

den, in the presence of Bruce Porter, a convicted seller

of heroin (Tr. p. 252). Bruce Porter, the convicted seller

of heroin, left the site while the informer was present

and was not stopped or searched upon leaving (Tr. pp.

252-253). “Foots”, the government’s addict-informer, had

previously bought drugs from John Osborne at the site

of the second transaction on numerous occasions (Tr. p.

421).

Petitioner denied being present at the premises of

the second transaction at any time (Tr. p. 347). Peti-

tioner’s denial was corroborated by the resident of the

premises of the second transaction (Tr. p. 423).

The testimony being in conflict on key points, the

petitioner put his reputation for truth and veracity and

his reputation as a law-abiding citizen into issue (Tr. pp.

378-79, 400). Character witnesses testified to no knowledge

of any contact with law enforcement agencies by the peti-

tioner prior to the offenses charged (Tr. pp. 378-79, 400).

Upon cross-examination of one of the petitioner’s char-

acter witnesses, Mrs. Vivian Price, the following question

was asked by the government:

“Have you ever heard that Eddie Louis Johnson was

arrested for selling heroin by the Cleveland Police

Narcotics Division in May of 1973?” (Tr. p. 385).

4

Objection and request for mistrial was then mace

by petitioner out of hearing of the jury (Tr. p. 385).

The objection was overruled and the question was repeated

by the government, this time the place c‘ the arrest, the

alleged site of the first transaction for which petitioner

was being tried, was inserted into the repeated question:

“Now, Mrs. Price, have you heard that in May of 1973,

Eddie Louis Johnson was arrested tor selling heroin

by the Cleveland Police Department at Shantell’s Su-

perette?” (Tr. p. 390).

ARGUMENT FOR ALLOWANCE OF THE WRIT

I. The United States Court of Appeals for the Sixth

Circuit Has Sanctioned Procedures in Direct Con-

flict with the Holding of Michelson v. United

States.

The Court is fully sensitive to the inherent difficulties

which arise by allowing government prosecutors to cross-

examine an accused’s character witness in regard to ar-

rests of the accused not culminated in conviction:

[D]espite its theoretical paradoxes and deficiencies,

we approve the procedure as calculated in practice

to hoid the inquiry within decent bounds. Michwvlson

v. United States, 335 U.S. 469, 481 n.18 (1948).

It is the thrust of the present petition for writ of

certiorari that these bounds have been intentionally

vaulted by the government and that the explicit language

of Michelson has been ignored by the lower courts in

this action.

A. The Michelson Rule of In Camera Inspection of

the Accused’s Arrest Record by the Trial Court

Was Disregarded by the Government.

The failure to conduct an in camera inspection of

the defendant’s criminal record before questioning the peti-

tioner’s character witness as to an unculminated arrest

deprived the trial court of the opportunity to consider

the “numerous and subtle” factors which must be evaluated

before allowing the question to be asked. United States

v. Lewis, 482 F.2d 632, 639 (5th Cir. 1973).

The discretion vested in the trial court by Michelson

as to the issue at bar is constrained by two considerations:

(1) The defendant’s reputation evidence apart from the

challenged question, specifically, whether there was any

other criminal record in addition to the unculminated ar-

rest, and (2) the trial court’s ascertainment of the reality

of the arrest from the arrest record of the defendant. See,

e.g., United States v. Wells, 437 F.2d 1144 (6th Cir. 1971).

Without following the inspection rule a trial judge

is, of course, forced to speculate as to the rest of the

defendant’s criminal record and reputation evidence. The

trial judge is rendered incapable of following the first

guideline by exercising an informed discretion. The in-

spection of the arrest record thus serves more than one

purpose. It allows the trial court to decide whether the

prior arrest will stand out alone against an otherwise clean

reputation, thereby highlighting its prejudicial effect, see,

e.g., Shimon v. United States, 352 F.2d 449, 454 (D.C.

Cir. 1965), or whether the proffered arrest is merely cumu-

lative, being but one more contact with law enforcement

officials. See, e.g., United States v. Rispo, 470 F.2d 1099,

1102 (3d Cir. 1973). It further allows the trial court

to evaluate whether the identity of the offense to that

charged will raise prejudice suffic.ent to destroy the proba-

tive value of the question. Unied States v. Gibson, No.

CR 72-726 (Ohio N.D.E.D. 1973).

This rationale for the in camera inspection of the

arrest record was first posited by this Court in Michelson:

[It is] by comparison with the reputation asserted

that a court may judge whether the prior arrest should

be made subject of inquiry. Michelson, supra, at 184.

See, also, United States v. Fox, 473 F.2d 131, 135

(D.C. Cir. 1972); United States v. Wooden, 420 F.2d 251,

252-53 (D.C. Cir. 1969).

It was upon the strength of this rationale that this

court put forth a rule in mandatory terms which was

ignored by the prosecutor for the government below:

[Blefore this . . . inquiry can be made [viz., has the

character witness heard of the unculminated arrest]

counsel must demonstrate privately to the court...

the reality of the arrest. Michelson, supra, at 481

n.18.

Without anir mera inspection of the accused’s arrest

record the discretion which is vested in the trial court

degenerates into a guessing game. The government's tactic

of surprise, precluding the Honorable Judge Lambros from

taking into consideration the totally clean reputation of

the accused prior to the offenses charged, violated both

the letter and rationale of the Michelson rule.

II. The United States Court of Appeals for the Sixth

Circuit Has Sanctioned an Extreme Departure

from the Accepted and Usual Course of Judicial

Proceedings as to Call for an Exercise of This

Court’s Power of Supervision.

Petitioner’s reputation in the community after the ar-

rest of petitioner for the offenses tried below was tainted

by that arrest and is, therefore, not competent evidence

of the petitioner’s reputation. This forms the rationale

for the overwhelming majority rule that character wit-

nesses can only be cross-examined as to events occurring

prior to the offenses charged. See, cases collected at 5

WicmorE, EvipENcE § 1618 at 492-93, n.1 (3d Ed. 1940);

Annot., 71 A.L.R. 1504, 1532-34 (1931); 47 A.L.R.2d 1258,

1300, 1302 (1956).

{[T{he community’s view of the accused’s character

could well be affected by the gossip which frequently

follows on the heels of a criminal] charge, his reputa-

tion in the community after the charge became publi-

cized might not be a trustworthy index to his actual

character. United States v. Lewis, supra, at 641.

This rule was disregarded below. The offenses

charged and tried below occurred in August and October

of 1972. The arrest used to smear the petitioner’s reputa-

tion occurred in May of 1973, after the offenses had been

publicized. To allow this procedure would have the jury

tease out that part of the reputation evidence which rested

solely on gossip arising before publication of the charge

or to choose only that gossip which rests on rumors not

created due to the publication of the charge. The ludicrous

burden this places upon a jury is plain. It is an imprac-

tical result asking mental gymnastics of jurors who are

8

being asked initially to only consider the evidence as it

relates to the character witness’s credibility. To add to

this not inconsiderable burden yet another task of legalistic

distinction borders on the absurd and not incidentally vio-

lates the majority rule on the subject.

More damning for the prosecutor’s surprise tactic, how-

ever, is the fact that its context reveals that the question

was not used to test the credibility of the character witness

but was used solely and intentionally to smear the reputa-

tion of the accused. This bad faith is clear upon examining

the circumstances of the arrest. It occurred at Shantell’s

Superette. The character witness being cross-examined

had just finished testifying that she was the manager

of the Superette. It was, therefore, inconceivable that

an arrest which had occurred at the Superette had not

come to the attention of the character witness. Under

the cloak of testing the credibility of the character witness

the government has thus prostituted the procedures of

Michelson to strike at the accused. This gross deviation

from the usual course of judicial proceedings must exceed

the “bounds of decency” spoken of by this court if those

words are to have any meaning whatsoever.

In light of the tenet set forth by this court in Michel-

son, that reputation alone can raise sufficient reasonable

doubt to vindicate an accused, 335 U.S. 469, 476, and the

nature of the orly direct evidence used by the government

in the trial below, the testimony of a contingently-paid

addict iriformer, evidence which has been subject to nu-

merous attacks as violative of Due Process in and of itself.

see, e.g., United States v. Grimes, 438 F.2d 391 (6th Cir.

1971), it cannot be said that the usual course of judicial

procedures can include the events which marked the pro-

ceedings below, nor that this court can countenance those

events in light of the mandates of Micheison.

III. The Scope of Questioning Allowed Under the

Rules of Michelson Is Presently Subject to Con-

flicting Constructions by the Courts of Appeals

for the Fourth, Fifth and Sixth Circuits.

In United States v. Null, 415 F.2d 1178 (4th Cir. 1969)

the court sanctioned the use of arrests of an accused af-

ter the offenses being tried in cross-examination of an

accused’s character witness, an issue not directly raised

by Michelson where the arrest in question had occurred

many years before the offenses being charged.

In United States v. Lewis, supra, at 641, ‘he Circuit

Court of Appeals for the Fifth Circuit stated the opposite

rule for reasons already mentioned. It now appears

that the Sixth Circuit has followed the path of the Fourth

Circuit in allowing the challenged question to pass muster

in petitioner’s challenge below.

10

CONCLUSION

For the foregoing reasons this honorable court is re-

spectfully requested to grant the writ of certiorari prayed

for pursuant to Rule 19(b), Supreme Court Rules, in that

(1) The rule of this Court as announced in Michelson

v. United States, 335 U.S. 469 (1948) was ignored

below;

(2) The practice sanctioned by the Sixth Circuit is

a gross deviation from the norm of judicial pro-

cedures;

(3) The Circuits are in conflict as to the scope of

the questioning which should be allowed under

the Michelson rules.

Respectfully submitted,

Ovmw LEwIs

Case Western Reserve Law School

11075 East Boulevard

Cleveland, Ohio 44106

Counsel for Petitioner

THOMAS L. JACOBS

Jacoss, Jacoss & Ziskinp Co., L.P.A.

1012 Midwestern National Bldg.

75 Public Square

Cleveland, Ohio 44113

Tel: 216-696-6688

Attorneys for Petitioner (Court Appointed )

11

APPENDIX

IUDGMENT OF THE COURT OF APPEALS

(Filed July 23, 1973)

No. 74-1149

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

EDDIE LOUIS JOHNSON,

Defendant-Appellant.

ORDER

Before: Epwarps and ENGEL, Circuit Judges, and Gray,*

District Judge.

On receipt and consideration of the briefs, record and

oral arguments in the above-styled case; and

Noting that this is an appeal from a conviction on

two counts of forbidden sale of heroin, in violation of

21 U.S.C.A. §841(a) (1970); and

Finding evidence from which the jury could appropri-

ately have found appellant guilty on each count beyond

a reasonable doubt; and

*Honorable Frank Gray, Jr., Chief United States District

Judge tor the Middle District of Tennessee, sitting by designation.

12

Noting that appellant’s character witness was cross-

examined about the present reputation of appellant after

testifying that appellant’s reputation was that of a law-

abiding citizen, Michelson v. United States, 335 U.S. 469

(1948); and

Finding no prejudicial or reversible error in this rec-

ord,

The judgment of conviction is affirmed.

Entered by order of the Court

/s/ Joun P. HEHMAN

Clerk

13

JUDGMENT AND COMMITMENT

(Dated October 24, 1973)

No. CR 73-232

UNITED STATES DISTRICT COURT

For THE NorTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA

V.

EDDIE LOUIS JOHNSON

On this 24th day of October, 1973 came the attorney

for the government and the defendant appeared in person

and by Thomas Jacobs, counsel.

Ir Is ApsupcEp that the defendant upon his plea of

not guilty and a finding of guilty has been convicted of

the offense of distribution of narcotic controlled substance

in violation of 21 U.S.C. §841(a) (1) as charged in Counts

I & II of the Indictment and the court having asked

the defendant whether he has anything to say why judg-

ment should not be pronounced, and no sufficient cause

to the contrary being shown or appearing to the Court,

Ir Is Apsupcep that the defendant is guilty as charged

and convicted.

Ir Is ApsupcEp that the defendant is hereby committed

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of six (6)

years on each Count and the defendant shall become eli-

14

gible for parole after serving 1/3 of the above sentence

pursuant to 18 U.S.C. §4208 (a) (1) and special parole condi-

tions of 6 years as noted under 21 U.S.C. §841 (b).

The sentence on both counts shall be run concurrently

with one another.

Ir Is Orperep that the Clerk deliver a certified copy

of this judgment and commitment to the United States

Marshal or other qualified officer and that the copy serve

as the commitment of the defendant.

/s/ Tuomas D. LAMBROS

United States District Judge