Petition for Writ of Certiorari — Troise v. United States

LIBRARY € Supreme Court, u. S

aero. 30 O FILED

SEP 6 OS

in the MICHAEL RODAK, !R., Ct 7

Supreme Court

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of the

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ed States

OCTOBER TERM, 1974

No, errr

MICHAEL TROISE,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

JAMES JAY HOGAN

420 Lincoln Road

Miami Beach, Florida

and

RICHARD M. GALE

518 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

Attorneys for Petitioner

EEE LET LOE TEE EEE EEE CEE IEEE TET CELE IERIE EEE ELE

MIAMI REVIEW — 371-4853 — 377-3721

INDEX

Page

OPINIONS BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED 2

STATUTORY PROVISION 3

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT __.. 7

ESR RRS re ESI ae UNE CON Pn IED ROOT 13

CERTIFICATE OF SERVICE 14

APPENDIX

Opinion and Judgment of Fifth Circuit App. 1

Judgment and Commitment,

USDC, So. Dist. of Fla. App. 5

United States Code

18 U.S.C. §2; 21 U.S.C. §§841(a)(1) and 846 App. 7

ll

TABLE ‘OF CASES

Case

McLawhorn v. Norti: Carolina,

484 F.2d 1 (4th Cir. 1973)

Roviaro v. United States,

353 U.S. 53, 77 S.Ct. 622, |

1 L.Ed.2d 639 (1957)

2,7

UNITED STATES CODE

18 U.S.C. §2

21 U.S.C. §§841(a) (1) and 846

3, 8, 10

28 U.S.C. $1254 (1)

in the

Supreme Court

of the

Anited States

OCTOBER TERM, 1974

NO. .

MICHAEL TROISE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

Petitioner Michael Troise prays that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Fifth Circuit

entered in this proceeding on June 27, 1975.

2

OPINION BELOW

This case has been decided without a formal opinion

being prepared for publication in the permanent law re-

ports. See 515 F.2d 1182. The unpublished opinion of the

Court of Appeals appears in the appendix (Ap. A,

pp 1). The judgment and commitment order entered by

the United States District Court for the Southern District

of Florida, is unreported and appears in the appendix

(Ap. B, pp 5).

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on June 27, 1975. A timely petition

for rehearing was denied July 25, 1975. An order extend-

ing the time to file this petition for writ of certiorari

until September 8, 1975, was entered by order of this

Court on August 7, 1975, under Case No. A-109. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec-

tion 1254(1).

QUESTIONS PRESENTED

I

Whether or not the denial of petitioner’s right to

disclosure of the identity of the informer re-

sulted in a misapplication of the principle of

law announced for disclosure of an informer set

forth in Roviaro v. United States, 353 U.S. 53,

77 S.Ct. 623, 1 L.Ed.2d 639 (1957) where the

informer in the case, sub judice, had taken a

material part in the criminal activity including

arrangement of meetings and being present with

the undercover government agent at all critical

times and where the critical facts were adduced

by the sole testimony of the undercover agent and

where the informer’s testimony could have con-

tradicted or amplified upon petitioner’s scienter.

II

Whether or not the denial of petitioner’s right to

disclosure of the identity of the informer directly

collides with the decision of the Fourth Circuit

in McLawhorn v. North Carolina, 484 F.2d 1

(4th Cir. 1973) requiring disclosure of the in-

former where the informer in the latter case,

as the informer in this case, had made a phone

call to arrange a meeting for the sale of narcotics

and was present and observed all matters con-

nected with the sale and the negotiations.

STATUTORY PROVISIONS INVOLVED

18 U.S.C. §2; 21 U.S.C. §§841(a) (1), 846 (Ap. C).

STATEMENT OF THE CASE

Petitioner, Michael Troise, was charged with conspira-

cy to violate 21 U.S.C. §841(a) (1) by committing certain

overt acts in violation of 21 U.S.C. $846. He was charged

also with two substantive counts of knowingly and inten-

tionally possessing with intent to distribute approximately

875 grams of cocaine and with knowingly and intention-

ally distributing said cocaine.

4

A Donald Gould was charged with petitioner. Gould

later pled guilty on the conspiracy count, and the substan-

tive counts against Gould were dismissed.

Petitioner filed a motion to disclose the name and

address of the confidential informer. The motion was

denied without prejudice to renew same at trial. At the

commencement of the trial proceedings the motion for

disclosure was renewed. After a hearing and argument

the motion was denied. It was again renewed at a later

stage of the trial proceedings and, in addition, defend-

ant’s counsel sought a continuance to interview the in-

former. The motions were denied.

The jury found petitioner guilty on all three counts.

He was ord ri committed for a period of 5 years as to

each count w.... the sentences to run concurrently.

Drug Enforcement Administration Agent Brown

stated at the hearing on the motion to disclose the name

and location of the confidential informer that he did not

know his present location. Brown conceded that he under-

stood from a preliminary hearing that defense counsel

asked the government to keep in contact with the con-

fidential informer in the event the Court ordered him

produced. Agent Brown admitted that the informer had

been a paid employee during the critical period of time

involving the charges against the defendant. Brown ad-

mitted that the confidential informer introduced him to

the defendant, Gould, and that the informer was with

him at the time of the delivery of the cocaine. The informer

was also present during all conversations with Gould and

agent Brown at the time of the delivery as well as at the

time that the petitioner was seen by Brown, Gould and

5

the informer. Also, according to agent Brown, petitioner’s

only statement to Brown was made in the presence of the

informer.

Facts adduced at the trial were that Agent Brown

met with the confidential informer on August 15, 1973.

They went to the Miami Shores Quality Cleaners and met

with petitioner’s co-defendant Gould to negotiate for the

purchase of a pound of cocaine. The deal was to take place

the next day. On the following day, Brown and the in-

former met Gould at a restaurant known as Sambo’s.

Gould stated to Brown and the informer that everything

was set to go and that he was meeting his source at the

latter’s office on 79th Street (Miami). Gould left the

restaurant as did Brown and the informer. Other agents

observed Gould go into a building on 79th Street (Miami).

Petitioner was observed going to the cleaners later in

the afternoon and then going back to the office on 79th

Street.

Later, agent Brown received a telephone call from

the informer. Pursuant to the call, Brown and the informer

met and proceeded to the Miami Shores Quality Cleaners.

After arriving at the cleaning store they were advised

by Mr. Gould that his connection for the cocaine would

be there at approximately 6:30 p.m. Gould, Brown and

the informer went to the back of the cleaners where Brown

gave $138,500 to Gould. The latter counted the money,

separated it into bundles and handed it back to Brown.

At approximately 6:30 p.m., Gould went out to a

1966 Blue Thunderbird, which had just arrived. He had

6

a short conversation with the driver (petitioner) and then

returned back inside the cleaners. Gould advised Brown

that the petitioner was the source for the pound of cocaine.

Brown testified that Gould advised him also that the main

man would not bring the cocaine and that he was sending

somebody else. Gould asked Brown and the informer to

go back inside the cleaners as he did not want his source

to see them.

Petitioner moved the Thunderbird across the street

into a parking lot adjoining Uncle John’s Restaurant. At

approximately 6:40 p.m., petitioner was seen by Brown

talking to someone in front of the restaurant and at this

time petitioner was not carrying a brown coat. Then, the

petitioner went into the restaurant and was later seen

crossing the street carrying the coat over his arm. At this

time the informer and Brown walked to the back of the

store. Petitioner carried the brown jacket into the store

and stated to Gould, “Here is my laundry; here is my

cleaning.” Gould brought the jacket in the back to the

informer and Brown and removed the plastic bag con-

taining a white powdery substance from the jacket. Then

Brown gave the money and the brown jacket to Gould

who walked toward the front of the cleaners.

When Agent Brown went to the front of the clean-

ing store with the informer, Brown walked directly by

petitioner and the latter, according to Brown, stated “I’m

sorry I held you up.” Brown testified that he replied “No

problem, I will see you the next time.” Brown admitted

that the confidential informer was approximately three

to four feet from Troise when he allegedly made the state-

ment to Brown.

7

Although other agents observed Troise carrying the

brown jacket over his arm to the cleaners and leaving

the cleaners with the coat, the agents differ in their testi-

mony as to whether Troise went into his automobile with

the coat (and money) and left with the coat or whether

another individual in an automobile next to petitioner

left with the brown jacket (and money).

REASONS FOR GRANTING THE WRIT

1. The denial of petitioner’s right to disclosure

of the identity of the informer resulted in a mis-

application of the principle of law announced for

disclosure of an informer set forth in Roviaro v.

United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.

2d 689 (1957) where the informer in the case,

sub judice, had taken a material part in the

criminal activity including arrangement of meet-

ings and being present with the undercover gov-

ernment agent at all critical times and where the

critical facts were adduced by the sole testimony

of the undercover agent and where the informer’s

testimony could have contradicted or amplified

upon petitioner’s scienter.

The Fifth Circuit misapplied the principle of law

announced in Roviaro v. United States, 353 U.S. 53, 77

S.Ct. 623, 1 L.Ed.2d 639 (1957) to the fact and circum-

stances of the case, sub judice. In Roviaro, the Supreme

Court was confronted with the propriety vel non of the

nondisclosure of an informer’s identity, where the defend-

ant was charged with knowingly receiving, concealing,

buying and facilitating the transportation and concealment

after importation of heroin, knowing the same to be im-

8

ported into the United States. In the case, sub judice,

Troise was charged in Count I with knowingly conspiring

to violate 21 U.S.C. §841(a) (1) and in two counts with

1) knowingly and intentionally possessing with intent to

distribute cocaine and 2) with knowingly and intentionally

distributing cocaine.

The informer in Roviaro had taken a material part

in bringing about the possession of certain drugs by the

accused and had been present with the accused at the oc-

currence of the alleged crime. Roviaro’s request for the

identification and address of the informer was denied by

the trial court, which denial was affirmed by the Seventh

Circuit.

This Court in Roviaro stated that the government’s

privilege to withhold from disclosure the name of an in-

former is subject to an important limitation described by

this Court in the following language:

“A further limitation on the applicability of the

privilege arises from the fundamental require-

ment of fairness. Where the disclosure of an in-

former’s identity or of the contents of his com-

munication, is relevant and helpful to the defense

of an accused, or is essential to the fair determi-

nation of a cause, the privilege must give way.”

This Court in Roviaro in determining whether dis-

closure should be made stated that it depends on the par-

ticular circumstances of each case, taking into considera-

tion the crime charged, the possible defenses, the possible

significance of the informer’s testimony and other rele-

vant factors. It, of course, becomes necessary to advert to

9

the facts and circumstances of the case, sub judice, and

to apply the Roviaro standard in order to determine the

correctness vel non of the Fifth Circuit’s affirmance of

the District Court’s order denying disclosure of the in-

former’s identity.

Briefly, the DEA undercover agent, Brown, was in-

troduced to Donald Gould by the informer, On August 15,

1973, Brown met with the informer and the two went to

see Gould concerning negotiations as to the price of co-

caine, etc. Later, the informer and Brown met with Gould

again to make further arrangements for the purchase of

the narcotics.

Subsequently the informer arranged a meeting be-

tween Gould and Brown at Gould’s cleaning plant. The

informer was with Brown when petitioner entered the

cleaning plant with a sports jacket in which the cocaine

was placed. The informer was present also when Brown

gave the money and the brown jacket back to Gould. When

Brown and the informer walked past petitioner, the latter

allegedly stated to them: “I’m sorry I held you up.” Agent

Brown was the only witness to testify as to what occurred

at the meetings with Gould and the informer.

Petitioner was observed leaving the cleaners with the

sport coat but as to whether he went into his automobile

with the coat containing the money or whether another

person left with the coat is in conflict. It must be remem-

bered also that petitioner did not have the coat with him

when he first appeared across the street from the clean-

ing plant.

10

From the foregoing the Court overlooked that the jury

could have inferred that Troise picked up the jacket from

someone in a restaurant across the street from the clean-

ing plant. Also, there is no evidence that Troise looked in

the jacket. Further, Troise was not present when the jacket

was taken to the back room of the cleaning plant to be

given to Brown in the presence of the informer. The coat

was returned to Troise, who then took it back across the

street and from the agents’ testimony either left with it

or gave it to a John Doe.

It is fundamental under 21 U.S.C. §841(a) (1) that

Troise must have knowingly or intentionally distributed

or dispensed or possessed with intent to distribute or dis-

pense the narcotic substance contained in the jacket. There

is no evidence that Troise saw the substance contained

in the jacket. There is no evidence that the money was

counted out or seen by Troise.

A jury may have inferred that petitioner was noth-

ing more than a flunkie chosen to make a delivery of a

substance (which he did not know the nature of) and

therefore could not have been guilty of knowingly and

intentionally possessing with intent to distribute or guilty

of knowingly and intentionally distributing or guilty of

knowingly and intentionally conspiring to distribute a con-

trolled substance.

The facts and circumstances of this case demonstrate

as the facts and circumstances in the Roviaro case that

“the informer’s possible testimony was highly relevant and

might have been helpful to the defense.” The only witness

to testify as to the negotiations and dealings with Gould

and also the contact with Troise was the DEA under-

11

cover agent Brown. Petitioner’s opportunity to cross-

examine Brown was hardly a substitute for an opportunity

to examine the informer who had been with Brown and

took part in the transaction. The informer had helped to

set up the criminal occurrence by introduction and by

arranging a crucial meeting in the negotiations. The in-

former was the only witness who might have testified to

petitioner’s possible lack of knowledge of the contents of

the package in the sport coat that the latter picked up

across the street from the cleaners and delivered to the

cleaners.

Again, the only person, other than the petitioner (who

is not required to take the stand) who could controvert,

explain or amplify Brown’s report of the critical events

was the informer. Contradiction or amplification would

have borne upon petitioner’s knowledge of the contents of

the package in the pocket of the coat.

In view of the foregoing, it is patently evident that

the Fifth Circuit misapplied the law set forth in Roviaro

by affirming the trial court’s order denying disclosure of

the identity of the informer.

2. The denial of petitioner’s right to disclosure

of the identity of the informer directly collides

with the decision of the Fourth Circuit in Mc-

Lawhorn v. North Carolina, 484 F.2d 1 (4th Cir.

1973) requiring disclosure of the informer where

the informer in the latter case, as the informer

in this case, had made a phone call to arrange a

meeting for the sale of narcotics and was present

and observed all matters connected with the sale

and the negotiations.

12

In McLawhorn v. North Carolina, 484 F.2d 1 (4th

Cir. 1973), the Court held that inasmuch as the informer

was a participant in the incident which resulted in the

arrest and conviction of the petitioner the identity of the

informer should have been disclosed to the defense. The

informer in McLawhorn made several calls to the latter in

an effort to arrange a “buy” between McLawhorn and an

undercover police officer by the name of Daughtry.

In the case, sub judice, the confidential informer

telephoned the government’s agent, Brown, and pursuant

to the telephone conversation Brown and the informer

proceeded to the cleaning plant where the transaction oc-

curred for which Troise was arrested. It is obvious that

the informer set up the meeting for the alleged criminal

transaction as did the informer in McLawhorn.

The Fourth Circuit in McLawhorn held that the in-

former’s testimony should be made available inasmuch

as it was apparent that the informer through telephone

calls arranged a sale and introduced McLawhorn to Daugh-

try. In addition, the informer was present and observed

all matters connected with the sale and was involved with

the negotiations. The Court found the informer’s testi-

mony was essential for the defendant to have a fair trial.

In like manner, in addition to arranging a meeting

between Agent Brown and Gould for the sale of narcotics,

the informer in the case, sub judice, was present and ob-

served all matters connected with the sale and the nego-

tiations. Thus, the Fifth Circuit’s decision denying peti-

tioner’s right to the disclosure of the identity of the in-

former directly conflicts with the decision of the Fourth

Cireuit in McLawhorn v. North Carolina, supra.

13

CONCLUSION

For these reasons a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

James Jay Hogan

420 Lincoln Road

Miami Beach, Florida

and

Richard M. Gale

518 Biscayne Building

18 West Flagler Street

Miami, Florida 33130

Attorneys for Petitioner

14

CERTIFICATE OF SERVICE

I hereby certify that three copies hereof were mailed

to the Solicitor General, Department of Justice, Wash-

ington, D.C. 20530, this _____ day of , 1975.

Nesae 04:

EE AS PINT ee At eee on

oo

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 75-1094

SUMMARY CALENDAR*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-VS-

MICHAEL TROISE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

[June 27, 1975]

Before COLEMAN, AINSWORTH and SIMPSON, Cir-

cuit Judges.

PER CURIAM:

Michael Troise seeks reversal of his convictions for

conspiracy, possession and distribution of cocaine, 21

U.S.C. §§841(a) (1), 846. He alleges the trial court erred

in not ordering the disclosure of the confidential infor-

mant in the case, and in its instructions to the jury on

the conspiracy exception to the hearsay rule. We find these

contentions to be without merit and affirm the convictions.

*Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Com-

pany of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.

App. 2

On August 15, 1978, DEA Agent Brown met with

a confidential informant. They went to the Miami Shores

Quality Cleaners and met with appellant’s co-defendant

Gould to negotiate for the purchase of a pound of cocaine.

The deal was set to take place the next day. They met

with Gould on August 16, and he stated everything was

set to go, that he was meeting his source at the source’s

office on 79th Street. Other agents observed Gould go

into a building on 79th Street. They observed Troise go

to the cleaners later in the afternoon and then go back

to the office on 79th Street. Brown and the informant

were advised the cocaine would arrive at the cleaners

about 6:00 p.m. They proceeded there at 5:30, Troise ar-

rived in a blue Thunderbird at about 6:30. Gould told the

agent his source was driving the Thunderbird. Troise

parked the car across the street and carried a brown

jacket to the cleaners. It contained the cocaine. Brown

gave Gould $13,500 for the cocaine. As Brown and the

informant were leaving the cleaners, Troise told them he

was sorry he had held them up. Troise then departed with

the brown jacket.

Troise and Gould were indicted in November, 1973.

Gould pled guilty in January, 1974. Troise’s trial was

reset numerous times. After several postponements, in

August, 1974, he moved for disclosure of the informant.

The motion was denied without prejudice to renew same

at trial. Trial was set for December 16, at which time

appellant renewed his motion for disclosure. After a hear-

ing and argument the motion was denied. The jury found

appellant guilty on all three counts.

App. 3

In this appeal appellant alleges as errors the fact that

the identity of the confidential informant was not dis-

closed, and that the court erred in its instruction on the

co-conspirator exception to the hearsay rule.

The test for disclosure of an informant was set out

in Roviaro v. United States, 353 U.S. 58, 77 S.Ct, 6238, 1

L.Ed.2d 689 (1957):

“We believe that no fixed rule with respect to

disclosure is justifiable. The problem is one that

calls for balancing the public interest in protecting

the flow of information against the individual’s

right to prepare his defense. Whether a proper

balance renders nondisclosure erroneous must

depend on the particular circumstances of each

case, taking into consideration the crime charged,

the possible defense, the possible significance of

the informer’s testimony, and other relevant fac-

tors.” 353 U.S. at 62, 77 S.Ct. at 628, 629.

We considered Roviaro in our decision in United

States v. Toombs, 5 Cir., 1974, 497 F.2d 88. Toombs i.

very similar to the case at bar. There the disclosure of

the informant was also asked for, but there was no show-

ing of how disclosure would be helpful to the defense.

Such is the case here, Entrapment was neither asserted

nor argued. Based on the circumstances of the case, the

court was correct in denying appellant’s request for dis-

closure.

Appellant’s other argument is that the court erred

in its instruction to the jury concerning the conspiracy

exception to the hearsay rule. The objected to instruction

App. 4

came as the government called its first witness, Agent

Brown, as he began testifying to the events that trans-

pired on the 15 and 16 of August. Previously the court

and counsel agreed that the testimony would be allowed

in with the proviso that if the conspiracy was not proven,

it would be stricken. Appellant now argues this amounted

to a directed verdict of guilt.

At the time appellant did not object to the instruc-

tion, but only to the admission of the testimony, Thus

any error must come under the plain error rule of

F.R.Cr.P. Rule 52(b). Jury instructions must be consid-

ered in their entirety and within the context of the trial,

United States v. Blue, 5 Cir., 1970, 480 F.2d 1286. Judged

in that context, the court’s instructions were not erro-

neous.

A review of the record reveals no errors of law.

The judgment of the District Court is

AFFIRMED.

App. 5

APPENDIX B

UNITED STATES DISTRICT COURT FOR

SOUTHERN DISTRICT OF FLORIDA

DOCKET NO. 78-777-Cr-J LK

Defendant: MICHAEL TROISE

JUDGEMENT AND PROBATION/

COMMITMENT ORDER

In the presence of the attorney for

the government the defendant appeared

in person on this date December 31, 1974

WITH COUNSEL JAMES J. HOGAN, ESQ.

PLEA NOT GUILTY

There being a verdict of GUILTY.

FINDING & Defendant has been convicted as charged

JUDGMENT of the offense(s) of conspiring to violate

Title 21, United States Code, Section

841(a) (1), knowingly and intentionally

possessing with intent to distribute a

quantity of cocaine, a Schedule II nar-

cotic controlled substance, and knowingly

and intentionally distributing a quantity

of cocaine, a Schedule II narcotic con-

trolled substance; all in violation of Title

21, United States Code, Sections 846,

841(a)(1), and Title 18, United States

Code, Section 2, as charged in Counts 1,

2, and 3 of the Indictment.

App. 6

The court asked whether defendant had anything

to say why judgment should not be pronounced. Be-

cause no sufficient cause to the contrary was shown,

or appeared to the court, the court adjudged the de-

fendant guilty as charged and convicted and ordered

that: The defendant is hereby committed to the cus-

tody of the Attorney General or his authorized rep-

resentative for imprisonment for a period of

SENTENCE

OR

PROBATION

ORDER

SIGNED BY

FIVE YEARS as to each of Counts 1,

2 & 3, unless otherwise discharged by

due process of law; it being further

ORDERED AND ADJUDGED that the

sentences of confinement shall run con-

currently with each other, it being fur-

ther ORDERED AND ADJUDGED that

the defendant shall serve a Special Parole

term of THREE YEARS as to each of

Counts 1, 2 & 3 which shall run concur-

rently ‘with each other, it is further

CRDiRED that sentence of confinement

shall be STAYED until January 8, 1975

and on that date the defendant shall re-

port to the Office of the United States

Marshall at Miami, Florida, no later than

12 Noon to commence confinement sen-

tence.

US. District Judge

JAMES LAWRENCE KING

Date Dec. 31, 1974.

App. 7

APPENDIX C

18 United States Code

§2. Principals

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or pro-

cures its commission, is punishable as a principal.

21 United States Code

§841.

(a) 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;

§846. Attempt and conspiracy

Any person who attempts or conspires to commit any

offense defined in this subchapter is punishable by im-

prisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the com-

mission of which was the object of the attempt or con-

spiracy.