Petition for A Writ of Certiorari — Lue v. United States

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Table of Contents

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Question presented for review ............iccecccccecscens 2

I ee ean eckants 2

Sen Ti INE SE WETEE hi oes wed b ceeds ceniuens rasese 10

PE ce abies TAG eR CLN EN Ca aui cat ectveuniecedaleak 15

Table of Authorities Cited

Cases Pages

Olmstead v. United States, 277 U.S. 488 ................. 15

Rochin v. California, 342 US. 165 .........ccccscccccece 12

United States v. Archer, 486 F. 2d 670 (2 Cir., 1973) ..... 11

United States v. Bueno, 447 F. 2d 903 (5 Cir., 1971) ...... 11

United States v. McGrath, 468 F. 2d 1027 (7 Cir., 1972) ..11,12

United States v. Oquendo, 490 F. 2d 161 (5th Cir., 1974) .. 11

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

Sth GUNA ah cde en REELS OO bee cae «5 2, 3, 10, 11, 12, 13, 14, 15, 16

Williamson v. United States, 311 F. 2d 441 (5th Cir., 1962) 16

Constitutions

U.S. Constitution, Amendment V ...................+08.- 2

Statutes

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Iu the Supreme Court

OF THE

United States

OcToBER TERM, 1973

No.

NorMan Lvt, Petitioner,

VS,

UNITED States or AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

The petitioner, Norman Lue, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for

the Ninth Circuit entered on the 19th day of June,

1974,

OPINION BELOW

The Court of Appeals entered its opinion on June

19, 1974. The opinion is not yet reported, and a

copy of the opinion is attached hereto as Appendix

A.

anne

JURISDICTIONAL STATEMENT

Jurisdiction of this Court is invoked under the

provisions of Section 1254 (1) of Title 28, United

States Code.

QUESTION PRESENTED FOR REVIEW

Was the conviction below obtained in violation of

the due process clause of the Fifth Amendment to

the Constitution by virtue of the conduct of law en-

forcement officers in obtaining, importing and deliver-

ing contraband narcotic drugs to the petitioner?

STATEMENT OF THE CASE

The abbreviated statement of facts in the opinion

below omits evidence developed during the govern-

ment’s case in chief bearing on the important issues

of “creative activity”, and the degree to which the

commission of the crime was the direct result of that

activity. For that reason, petitioner would ask the

Court’s indulgence to summarize the testimony of two

prime government witnesses, Monson [the informant-

special employee] and Shostrom [the agent]. Only

by such a recitation can the case be put in its proper

perspective, thereby exposing the unsound conclusion

by the Court below that the acquisition, importation

and delivery of heroin by government agents is com-

parable to the “scarcely objectionable” conduct in

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

ee

During the trial, Lue moved for judgment of ac-

quittal both on the grounds of entrapment as a matter

of law and that the degree of participation by gov-

ernment agents in the instigation and commission of

the crime was such that due process bars conviction.

Since the Russell case was before this Court, the trial

judge did not feel bound by the Ninth Circuit’s de-

cision in Russell, and both motions were denied. Pe-

titioner was convicted by a jury and sentenced to ten

years in prison. Since the issue of predisposition was

found against the petitioner by the jury, on tradi-

tional entrapment instructions, the Court below found

that there was evidence in the record to support

the jury finding, and that there was no entrapment

as a matter of law (Opinion, Appendix A).

While the petitioner does not concede in this Court

or in the Courts below (as did the petitioner in Rus-

sell, supra), that he was in any way predisposed to

commit the offense, the governmental activity in this

case was so pervasive as to overcome any slight pre-

disposition which could bar the traditional entrapment

defense. For that reason, petitioner only raiscs in this

petition for certiorari the sole question of the degree

of governmental activity required to violate due proc-

ess standards. Consequently, the factual setting from

the government’s own witnesses is of paramount im-

portance, especially the chronology of events preced-

ing the involvement of petitioner in the activity. For

these reasons, the testimony of Monson and Shos-

trom will be summarized in sequential form.

4

March 5, 1972. Monson, a government informer, was

approached by Young in Hong Kong. Young was a

Chinese import-export dealer, and was acquainted

with Monson. Yourg asked Monson if he would go

into a morphine smuggling business with him, and if

he would put up $3,000.00 to purchase the drugs.

Monson told him he would think about it (Transcript,

pp. +7). Monson reported this to Shostrom, a federal

narcotics agent at the American Embassy in Hong

Kong. Monson gave Shostrom Young’s telephone

number, and Monson was told to keep in toucn with

Young. Monson then agreed to take heroin to the

United States for Young, and there was no discussion

about Monson investing $3,000.00 in the venture

(Tr., pp. 8-16).

March 8, 1972. Monson reported his progress to

Shostrom. From March 8, 1972 until April 24, 1972,

nothing happened, since Yeung had informed Monson

that he was “waiting for soine way to raise the money”

(Tr., p. 22).

April 24, 1972. Monson told Young that his visa

would expire, and he was leaving for Formosa. Mon-

son left, and remained in Formosa until May 10,

1972.

May 10, 1972. After contacting Shostrom in Hong

Kong, Monson left Formosa for San Francisco (Tr.,

p. 23). ; »

May 26, 1972. Monson contacted the San Francisco

office of the Bureau of Narcotics after receiving a

letter from a friend that Young was looking for him.

5

It was arranged that Shostrom, the agent in Hong

Kong, would pose as “Stewart” (a friend of Mon-

son’s) and contact Young (Tr., pp. 26-27, 104-107).

May 31, 1972. Shostrom contacted Young in Hong

Kong, and gave Young Monson’s telephone number

in San Francisco, and instructed Young to call Mon-

son. Shostrom said he would return to Hong Kong

in two weeks, and would be in touch with Y oung

(Tr., 201-202) [To add to the intrigue, one week

prior to the meeting on May 31, Young went to the

American Consilate in Hong Kong to furnish infor-

mation concerning drug smuggling into the United

States. He was interviewed by one of Shostrom’s sub-

ordinates, but “no intelligence was taken from Mr.

Young” (Tr., pp. 203-204).]

June 1 or 2, 1972. Monson called Young in Hong

Kong and verified that “Stewart” was an associate,

and that he was “a guy who could carry the deal

of bringing the drugs into the United States”. Young

said he was still interested, but that “he still had

some financial problems” (Tr., p. 34).

June 2, 1972. Monson called Shostrom and conirmed

the conversation with Young.

June 5, 1972. Young contacted Shostrom, and asked

him to take a package to Monson in San Francisco.

Shostrom agreed (Tr., p. 206).

June 10, 1972. Shostrom called Monson in San Fran-

cisco and informed him of the meeting with Young

(Tr., pp. 35, 206).

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June 10-13, 1972. Monson called Young in Hong

Kong and urged him to get the drugs to Shostrom

before the 16th of June, and Young stated that he

would try, though he still had financial problems (Tr.,

pp. 36, 117-118).

June 13, 1972. Shostrom met Young in Hong Kong,

and informed him that he was leaving on the 16th,

and would take the heroin with him. Young asked

Shostrom how he was planning to smuggle the drugs

into the United States, and Shostrom said “That was

my business and I would not discuss it, once he

gave me the heroin, I would take care of it” (Tr,

pp. 208-209).

June 16, 1972. Young called Shostrom and told him

that “the deal was off”, and that Shostrom should

stay a week. Shostrom refused, and Young told him

“Well, then in this case I guess I cannot do any

business with you this time. I will have to do it when

you come next time”. Shostrom said there would be

no next time, and hung up the telephone (Tr., p.

210). Later that day, Young called Shostrom and

gave him petitioner’s telephone number in Los An-

geles. Young told Shostrom to have Monson call Lue

and tell him that “Young has just come from the air-

port”. When Monson finally got in contact with Lue,

Lue did not know what he was talking about and

did not sound anxious to see him. On this initial

contact with Lue, Monson testified as follows: *

Q. Mr. Monson, after this phone call of the

16th, would it be fair to say that you gave him

[Lue] the signal and Lue didn’t appear to under-

stand the signal, right?

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mg

A. Exactly.

Q. You repcrted that he didn’t seem co know

what business you were talking about, did te’

A. Yes.

Q. Yes, he did not or no?

A. Yes, it seemed like he didn’t know.

Q. Isee. And then you expressed a desire to

get together with Mr. Lue, right?

A. Yes.

Q. You wanted to see him. You wanted to

keep putting this deal together, right ?

A. Yes.

* * * *

Q. As a maiter of fact, he didn’t particularly

even want to see you, right? He didn’t sound like

he was very anxious to see you?

A. He seemed like that, yes. (Tr., p. 126).

After this initial call, Monson called Young in

Hong Kong and reported that Lue did not seem inter-

ested in talking to him. He testified:

Q. On the same day you called Mr. Young

to say “What is the matter? How come this deal

isn’t going through”, is that correct?

A. I don’t know exactly the words I used, but

it is on record.

Q. And you asked him what you were sup-

posed to tell this man to participate in this ven-

ture, is that correct?

A. Yes.

Q. In other words, asking Mr. Young’s advice

because Mr. Lue is not falling into this trip [sic]

you are setting and you want Young to tell you

what you should do to snare Lue in, right?

A. Exactly.

* * *

*

8 a . * —

Q. In other words, would it be fair to say

that he [Lue] was reluctant before but you kept

persisting and he finally agreed that you come

down to Los Angeles and talk to him?

A. Exactly. (Tr., pp. 127-128).

June 17,1972. Monson went to Los Angeles and met

Lue in a restaurant, intreducing himself as a friend

of Young’s. Menson told him he was a gold smug-

gler from Hong Kong, and only “hinted” at the sub-

ject of drugs. Lue still did not appear interested in

pursuing the matter, so Monson asked him to cail his

party in Hong Kong. Monson left and returned to

San Francisco (Tr., pp. 44-48, 133-134).

June 18, 1972. Monson called Young in Hong Kong

and reported that Lue did not recognize him, and that

Young should clear that up. Young told Monson that

the drugs were on their way, and that they had been

delivered to “Stewart” for delivery (Tr., p. 50).

June 20, 1972. Monson again called Lue after learn-

ing that Lue had been trying to reach him, Lue

stated that he was coming to San Francisco, and

would meet Monson.

June 22, 1972. Lue met Monson on a street corner

and informed Menson that he [Lue] had talked to

Young, and asked Monson “how much was coming”.

Monson stated that Young was sending “two units”, :

and Lue told Monson that he had never done thjs |

before, that he was not in this kind of business, and |

that he would have to contact somebody else (Tr., p. |

59).

SAGER IO CEL LOE IE IIE IE IG

9

June 30, 1972. Monson wrote Young in Hong Kong

to determine the prices and the split.

July 5, 1972. In response to Menson’s letter, Young

called Monson and told him to collect $7,000.00; that

Monson should keep $1,250.00 and give Shostrom

$1,250.00 plus $700.00 for expenses. The balance was

to be sent to Young by draft (Tr., pp. 61-62).

July 7, 1972. After learning that Shostrom had ar-

rived with the heroin, Monson made several unsuccess-

ful attempts to contact Lue. Monson again called

Young in Hong Kong “to try and get him [Young]

to push Lue and get Lue into this thing” (Tr., p.

146). Finally, Monson reached Lue and arranged a

meeting, telling Lue that the drugs were here and

that he had to accept them, since the carrier was here

and needed the money immediately. Lue informed

Monson that he could not take the drugs, that he had

no money, and could not raise it. Monson told Lue

that he would accept $2,000.00 now, and the $5,000.00

balance later.

July 8, 1972. Monson again called Lue and asked

to meet with him. Lue agreed, and they met. Monson

delivered the heroin to Lue, and Lue paid the $2,000.00.

Lue was later arrested at the home of a friend.

Monson testified that he came to the United States

solely to pursue the drug transaction that had been

proposed, since he was reluctant to return to Hong

Kong in view of the gold smuggling investigation

(Tr., p. 166). After diseussing his cooperation with

Shostrom, arrangements were made through the Amer-

10

ican Consul that Monson be given a visa to enter

the United States to continue working on the case.

Monson testified that he had no other reason to come

to the United States except to work on this one case.

He conceded that under his arrangement with the

Bureau of Narcotics the more he produced the more

he got paid (Tr., p. 167A). Monson was asked “But

you also understood that if you were unable to get

somebody arrested in this case, you wouldn’t have

completed you job?” He replied, “Well, I assume so,

yes” (Tr., p. 168). From the time Monson was first

contacted by Young in March 1972 until the trial of

Lue in January 1973, his only employment was as an

informer in this one case, and at the time of his testi-

mony, he had been paid $3,700.00 for expenses only.

His compensation, upon the successful completion of

the case, “would be settled later” (Tr., pp. 105-106,

167A).

REASONS FOR GRANTING THE WRIT

The dictum of this Court in United States v. Rus-

sell, 411 U.S. 423 (1973) recognizing that due process

may bar conviction when the conduct of the govern-

ment is “outrageous” in the context of “creative ac-

tivity” has been given varied interpretations by the

circuits considering the question after the Russell

decision. As suggested in the opinion below, recént

decisions in the circuits have produced some specula-

tion as tu the scope of the “due process” defense, but

no resolution. The question left for decision by the

Court of Appeals below has not been answered by

11

this Court: When does governmental conduct in in-

stigating criminal activity become “shocking”, so as

to bar the invocation of judicial processes to obtain

a conviction?

Those post-Russell courts that have met the issue

have reached inconsistent results. In United States v.

Oquendo, 490 F.2d 161 (1974), the Fifth Cireuit re-

affirmed the vitality of its rationale in United States

v. Bueno, 447 F.2d 903 (5 Cir., 1971), that entrap-

ment as a matter of law is established whenever it is

shown that “the contraband in question was supplied

to the defendant by a government agent including a

paid informer”. 490 F.2d at p. 162. The Court dis-

tinguished this Court’s holding in Russell on the same

vital distinction present here: rather than providing

the defendant with a “harmless, obtainable substance”,

it was the “contraband itself the possession or distri-

bution of which constitutes the very substance of the

crime”, 490 F.2d at p. 163.

Similarly, the Second Cireuit in United States v.

Archer, 486 F.2d 670 (1973) [cited in the opinion

below] stated that “there is certainly a limit to al-

lowing governmental involvement in crime”. 486 F.2d

at p. 676. While this Court vacated and remanded

the decision of the Seventh Circuit in United States

v. McGrath, 468 F.2d 1027, vacated and remanded,

412 U.S. 936, in light of the Russell decision, the rea-

soning of the Seventh Circuit is in line with that of

the Fifth Circuit in Bueno and Oquendo, supra. As

the Court of Appeals said in McGrath: “[It is] re-

pugnant to the most elemental notions of justice to

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permit law enforcement personnel to manufacture

counterfeit bills, deliver them and then arrest the re-

cipient for possession of contraband.” 468 F.2d at

p. 1030.

The Ninth Circuit in the decision below has iz-

nored any distinction between the supplying of contra-

band and a harmless substance; between entering a

going criminal enterprise and being the moving party

in organizing one; and the capacity of the particular

defendant to commit the crime without governmental

assistance.

It is essential that those limitations on governmental

conduct recognized by this Court in Russell be clari-

fied, if for no other reason than to define the bounda-

ries of permissible police conduct. The decision below

seems to be a “green light” to governmental participa-

tion in criminal activity, so long as the methods used

do not reach the “rack and the screw” extremes of

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

below stated: “For an accused to benefit from this

remedy, the facts of his case would have to demon-

strate government conduct ‘so outrageous’ as to be

analogous to the police conduct in Rochin.” (Opinion,

Appendix A). It is doubtful that this extreme posi-

tion was intended by this Court, nor even advocated

by the government in Russell. As was recognized by

the Solicitor General in Russell: »

We do not here challenge the proposition that

under certain circumstances government partici-

pation in a criminal venture might reach a level

of direction and control that would make it a vio-

lation of the due process clause to prosecute the

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. people who acquiesce in what would be essentially

the government’s enterprise. We submit, how-

ever, that a determination of the circumstances

~ under which such conduct is found to violate the

due process clause cannot be made in a vacuum,

but must be made in the context of “accepted

notions of justice.” See Malinski v. New York,

324 U.S. 401, 417 (Frankfurter, J., concurring).

See also Rochin v. California, 342 U.S. 165,

170-171. Viewing the conduct of the under-

cover ageit here in this light, it is plain that the

isolated fact upon which the majority appeared

to rest its holding—the supplying of the phenyl-

2-propanone—does not justify the holding that

- the respondent’s conviction offends “fundamen-

tal concepts of due process.”

% * * *

It may be that due process precludes criminal

conviction for engaging in conduct that would

not have been possible without the participation

and assistance of a government agent who sup-

plied an indispensable means to the commission

of the crime that could not have been obtained

otherwise, through legal or illegal channels. But

- that is not what the record in this case establishes.

Brief for the United States, United States v. Rus-

sell, No. 71-1585, October Term, 1972, pp. 27, 32.

It is interesting to note that Lue was not even

drawn into the enterprise until after the drugs had

been delivered to the government agent, Shostrom,

for transportation to the United States and ultimate

sale to a receiver. It was only after persistent and re-

peated importunings by Monson that Lue agreed to

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14

call Young and acquiesce in accepting the drugs. In

fact, it was only after Monson agreed to let Lue have

$7,000.00 worth of heroin for $2,000 down that

Lue was able to make the purchase. Monson freely

admitted that he had to persistently keep after Lue to

keep him interested, and that when he detected his

continued reluctance to become involved, Monson in-

creased his efforts. Monson’s testimony that Lue told

him he had never been in the drug business, and that

he was not in it now, was never refuted by any evi-

dence of prior dealings between Young and Lue (Tr.,

pp. 139-140). This question may have been resolved

against Lue by the jury by finding some predisposi-

tion on his part to engage in the criminal venture;

but it does not support any inference that Young and

‘Lue were partners in a smuggling venture, and that

the government simply provided a courier. In fact,

the evidence belies this conclusion, since the details

of the delivery, the price, and so forth were discussed

between Young and Monson; Lue did not even know

how much was coming. He had to ask Monson all the

details of the transaction. The Court below analogized

this situation with that in Russell, that the govern-

ment simply provided a needed ingredient (the ca-

pacity to introduce into the United States hard nar-

cotics through customs) that could easily have been

provided by someone else. Such a finding is not only

not supported by the record, it is not logically anglo-

gous to the facts in Russell. It would appear from a

fair reading of this Court’s opinion in Russell, that

a distinction must be made between providing a gov-

ernment agent to obtain, smuggle and deliver a pro-

15

hibited narcotic drug (one that is not likely to have

been produced in the United States) and furnishing

a harmless chemical to an existing drug manufactur-

ing ring. If no such distinction exists, then this Court

has given the govanment license to play an ignoble

role in the enforcement of criminal laws.

If conduct such as this is condoned, it makes

a mockery of the “celebrated passage” in Mr. Justice

Brandeis’ dissent in Olmstead v. United States, 277

U.S. 438, 485:

- Decency, security, and liberty alike demand

that government officials shall be subjected to the

same rules of conduct that are commands to the

citizen. In a 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 teacher. For good

or for ill, it teaches the whole people by its ex-

ample. Crime is contagious. If the government

becomes a lawbreaker, it breeds contempt for

law; it invites every man to become a law whto

himself; it invites anarchy. To declare that in

the administration of the criminal law the end

justifies the means—to declare that the govern-

ment may commit crimes in order to secure the

conviction of a private eriminal—would bring

terrible retribution. Against that pernicious doc-

trine this court should resolutely set its face.

CONCLUSION

Not only does there exist a conflict in the circuits

on the interpretation of this Court’s decision in Rus-

sell, the issue presented is one of importance in the

16

administration of criminal justice. Any misinterpre-

tation of the limitations still imposed on governmental

involvement by this Court’s decision in Russell will

result in a proliferation of due process problems re-

quiring resolution by the courts, hopefully not, as

below, on an ad hoc basis. It would be unfortunate

if we were left with a rule of conduct which de-

pended, within each circuit, on the subjective sensi-

bilities of a majority of the panel hearing each case.

There runs an undercurrent of feeling in the Courts

of Appeals against excessive involvement by the gov-

ernment in the inducement and instigation of crime.

As Chief Judge Brown stated in Williamson v. United

States, 311 F.2d 441, 445 (5 Cir., 1962) [concurring

specially], “. . . there comes a time when enough is

more than enough—it is just too much. When that

occurs, the law must condemn it as offensive whether

the method used is refined or crude, subtle or spectac-

ular.” The question presented by this petition should

be resolved. The petition for writ of certiorari should

be granted.

Dated, Oakland, California,

July 16, 1974.

Respectfully submitted,

SPENCER W. STRELLIS,

STRELLIs & HALL,

Counsel for Petitioner. »

(Appendix A Fullows)