Opposition Brief — Skartsivas v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-370

Gus JOHN SKARTSIVAS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that he was entrapped as a matter

of law and that the government should have been required

to call an informant as a prosecution witness, even though

the informant was available to the defense.

Following a jury trial in the United States District

Court for the Eastern District of Michigan, petitioner

was convicted of two counts of having distributed heroin,

in violation of 21 U.S.C. 841(a)(1).! He was sentenced

to concurrent terms of five years’ imprisonment and a

special parole term of three years. The court of appeals

affirmed without opinion (Pet. App. A 1).

'This was petitioner’s third trial. Initially he pled guilty to count

one of the indictment, but the district court permitted him to

withdraw the plea upon his assertion that he could produce a witness

who would testify that he was coerced into selling heroin. There-

after, in February 1974, petitioner was tried before a jury and

convicted on both counts. That conviction was vacated in May 1974 on

the ground of ineffective assistance of counsel. A second trial

in June 1974 ended in jury disagreement.

(1)

2

In early September 1972 in Detroit, Michigan, Agent

Frank Catalogna of the Drug Enforcement Administration

(“DEA”) began investigating petitioner on the basis

of information furnished by Frankie Mays, a paid in-

formant (Tr. 10, 86, 109-111, 144-147). Agent Catalogna

instructed Mays to tell petitioner that he knew of a

prospective purchaser of narcotics (Tr. 11, 110). On the

morning of September 26, 1972, DEA Agent Melvin

Smith, who was to pose as the buyer, drove to Mays’

home to arrange to purchase heroin from petitioner

(Tr. 10-12, 88).

At about 1:00 p.m., Mays engaged in a telephone con-

versation in Smith’s presence during which he asked the

other party to sell one ounce of heroin. Mays agreed

to pay $1,000 for the heroin and to meet the other

person at 1:30 p.m. on the corner of Wyoming and Six

Mile Streets in Detroit (Tr. 12-14). Smith and Mays

drove to the meeting place and met petitioner, who sold

Agent Smith a quantity of heroin for $1,000 (Tr. 14, 16-17,

88-89).

Petitioner noticed that Agent Smith had more money

remaining and offered to sell an additional quantity

of heroin which petitioner said was to have been the

subject of another transaction which had fallen through.

Agent Smith then purchased that quantity of heroin for

$200. Petitioner also told Smith that he could arrange

future heroin transactions (Tr. 17-18, 20-21, 84).

On October 4, 1972, Agent Smith telephoned petitioner

and said that he wished to buy some heroin immediately

(Tr. 67; Tapes 1-2).2 Shortly thereafter petitioner called

“Tapes” refer to the verbatim transcript of the telephone

conversations between Agent Smith and petitioner on October 4,

1972, which were recorded.

a TR ar WY MRE T SPELT FTA SRY LOO RS RINE AEE

3

Smith back and inquired how much heroin Smith wanted.

Smith said one ounce, but petitioner urged him to buy

two, and Agent Smith agreed to the larger amount

(Tr. 29-32, 36; Tapes 1-3). Petitioner telephoned Smith

three subsequent times that afternoon; during those

conversations petitioner and Agent Smith agreed on the

purchase price and the time and place of the transaction:

they also agreed that the quality of the heroin would

be better than that sold by petitioner to Smith on

September 26 (Tr. 35-38; Tapes 4-6).

Following those conversations, Smith met petitioner at

the corner of Wyoming and Six Mile Streets and com-

pleted the transaction (Tr. 39-40). Smith asked petitioner

to name his supplier, but petitioner declined to provide

this information on the ground that it would deprive him

of his status as middleman (Tr. 41). Petitioner told

Agent Smith to call him if he wanted to buy more

narcotics (Tr. 41). Petitioner was subsequently arrested.

1. Petitioner's contention that he was entrapped is

unfounded since, as the record demonstrates, petitioner

was predisposed to sell heroin on both occasions just

recounted. See United States vy. Russell, 411 U.S. 423,

433.

Petitioner proposes, however, that this Court adopt a

new rule? in entrapment cases requiring the government to

‘Contrary to petitioner’s assertion (Pet. 14-15), no circuit now

follows such a rule. Henderson vy. United States, 261 F.2d 909

(C.A. 5), suggested simply that entrapment as a matter of law was

proved by the government's evidence alone, even without defendant's

testimony; nothing whatever was said about a “reasonable suspi-

cion™ test. That such a test is not followed in the Ninth Circuit

is shown by Young v. United States, 286 F.2d 13, 15, certiorari

denied, 366 U.S. 970. Nor does the Sixth Circuit have such a rule,

see United States v. Ambrose, 483 F.2d 742, 752. Morei v. United

States, 127 F.2d 827 (C.A. 6), relied upon by petitioner, held that

entrapment was no defense if the criminal plan originated with the

4

prove that prior to affording the defendant an oppor-

tunity to commit a crime it had a “reasonable suspicion”

that he would do so. Such a rule is unwarranted, since it

would add nothing to the ability of the “otherwise

innocent” (Sorrells v. United States, 287 U.S. 435, 448)

to demonstrate their lack of predisposition, but would,

rather, focus on the conduct of the government, which this

Court has held is not the intended purpose of the

entrapment defense. United States v. Russell, supra, 411

U.S. at 435. See United States v. Williams, 487 F.2d 210,

211, n.1 (C.A. 9), certiorari denied, 416 U.S. 958.

2. At both of petitioner’s previous trials in this case

he had called the informant Mays to testify on his

behalf. At this trial he requested the district court to

instruct the government to call Mays as a prosecution

witness. The district court refused to do so (Tr. 141),

whereupon petitioner elected not to call Mays and rested

his defense.

defendant or if the government agents had a reasonable suspicion

that the defendant was engaged or about to be engaged in crime (127

F.2d at 833). Morales v. United States, 260 F.2d 939 (C.A. 6),

simply took the defendant’s prior lack of criminal conduct into ac-

count in determining that entrapment as a matter of law had been

made out.

Neither United States v. Fox, 437 F.2d 733 (C.A. 7), certiorari

denied sub nom. Gill v. United States, 402 U.S. 1011, nor

Lunsford v. United States, 200 F.2d 237 (C.A. 10), holds that the

government’s failure to prove the existence of a “reasonable suspi-

cion” is fatal when the entrapment defense is asserted. Rather, that

issue was not raised in those cases, which hold only that the entrap-

ment offense could not be successfully raised where the officers had

reasonable suspicion to believe that the defendant might commit an

offense.

5

Petitioner claims that Mays’ testimony would have been

exculpatory as to him and that therefore it was error

for the district court not to order the government to

call Mays as a government witness. But the government

is under no obligation to call an informant as a witness,

especially where, as here, the informant’s testimony is not

needed to prove an essential element of the government’s

case. See, e.g., United States v. Tatum, 496 F.2d 1282,

1284 (C.A. 5); United States v. Craig, 477 F.2d 129,

131 (C.A. 6). Petitioner knew that Mays was available

to testify and what his testimony was likely to be;

if he wished the jury to hear Mays’ testimony he should

have called him as his own witness. See United States

v. Key, 371 F.2d 421, 423 (C.A. 6), certiorari denied, 386

U.S. 982; Cohen v. United States, 363 F.2d 321, 328

(C.A. 5), certiorari denied, 385 U.S. 957; United States

v. Miguel, 340 F.2d 812, 815 (C.A. 2), certiorari denied,

382 U.S. 859; Cenedella v. United States, 224 F.2d 778,

783 (C.A. 1), certiorari denied, 350 U.S. 901.4

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoBERT H. Bork,

Solicitor General.

NOVEMBER 1975.

‘As the court of appeals noted (Pet. App. A 1), petitioner's reliance

on United States v. Bryant, 461 F.2d 912 (C.A. 6), is misplaced. Bryant

requires than an informant be called as a prosecution witness only

where the government had suppressed evidence potentially favorable

to the accused. 461 F.2d at 916. No such claim of suppression is made

in this case.

DOJ-1975-12

BESTE ODS Pls SAE ti ANY