Opposition Brief — Madison v. United States

An the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1264

FREDNA MADISON AND ROGER MADISON, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners contend that they were entrapped, that they

were entitled to a missing witness instruction, and that the

district court improperly denied them a continuance to ob-

tain counsel.

Following a jury trial in the United States District

Court for the Eastern District of Virginia, petitioners were

each convicted of two counts of distribution of heroin and

one count of possession of methamphetamine with intent to

distribute, in violation of 21 U.S.C. 841(a)(1).! Petitioner

'One count charging distribution of methamphetamine was dis-

missed at the close of the government’s case.

(1)

TREN TRIER COSI «ER BATE MTSE MOINS

2

Roger Madison was sentenced to concurrent terms of eight

years’ imprisonment on each count of the indictment, to

be followed by a three-year special parole term. Petitioner

Fredna Madison was given a five-year suspended sentence

and placed on unsupervised probation. The court of ap-

peals affirmed per curiam (Pet. 23-24).

On December 8, 1972, Drug Enforcement Administra-

tion agents Gerald Musiello and Thomas Sheehan were in-

troduced to petitioner Roger Madison by government in-

formant Rebecca Burley, following a phone call from Bur-

ley informing Madison that “his customers were ready and

waiting” (Tr. 9).2 Petitioner Roger Madison and Musiello

discussed a possible heroin purchase. Musiello expressed

an interest in purchasing drugs from Madison on a contin-

uing basis and Madison responded that he could deliver

high quality drugs on a bi-weekly basis. Madison also as-

sured Musiello that he had been dealing with “his people”

for years and that security for the sales was guaranteed

(Tr. 10-11). Madison then telephoned to arrange for de-

livery of the heroin. Petitioner Fredna Madison thereafter

arrived with the heroin, which petitioner Roger Madison

handed over to Musiello in exchange for $1,400 (Tr. 11-

14).

Petitioner Roger Madison and Sheehan met on Decem-

ber 12, 1972, at which time Sheehan complained about the

quality of the earlier heroin and petitioner, expressing sur-

prise, offered to provide a sample of higher quality heroin

before any further sales (Tr. 23-25). Madison subsequently

told Sheehan that he had been dealing with the same

sources of supply for “seven or eight years” and com-

mented that “[y]Jou will run out of money before my man

runs out of heroin’(Tr. 26-27). Madison also told Sheehan

“Tr.” refers to the one-volume transcript of the trial on May 10,

1973.

BTL LI IELTS IG BEE SEMEN ME MEY BS PITS Fig EPON EAT A ENA LS POA

2

that “although he dealt in heroin, he was a connoisseur of

cocaine” and could arrange for a cocaine sale if Sheehan

were interested (Tr. 27). Madison then gave Sheehan a

small plastic packet of heroin (Tr. 29-30), and reiterated his

agreement to furnish two-ounce quantities of heroin on a

regular basis to Sheehan and Musiello (Tr. 29).

On February 22, 1973, Sheehan arranged with peti-

tioner Roger Madison to purchase two ounces of metham-

phetamine for $2,500 (Tr. 30). On March 1, Sheehan and

agent Andrew Sherbine met with Madison to consummate

the purchase. Madison told Sheehan that he had received

the drugs “directly from his man,” that he had not diluted

them and that they were of good quality (Tr. 30, 32). After

about five minutes petitioner Fredna Madison arrived

with two plastic bags containing methamphetamine. Peti-

tioner Roger Madison then handed the drugs to Sheehan

(Tr. 32-33). Shortly thereafter, petitioners were arrested

(Tr. 34, 45).

At trial, petitioner Roger Madison testified in his own

defense. He admitted delivering the heroin and the metham-

phetamine, but stated that all the drugs had been given to

him by the informant, Rebecca Burley (Tr. 51-52). Madison

testified that Burley had asked him to sell drugs on her be-

half to friends “Tom” and “Jerry,” since “Jerry” refused

to deal with a woman and would only trust a black male

(Tr. 50-51). Burley told him that if he made the deal for

her that he could have a substantial profit (Tr. 51). Madi-

son admitted that he readily agreed to sell the drugs be-

cause he wanted the money (Tr. 62-63). Madison denied

any previous involvement with drugs and said that his

statements to the agents relating to the extensive drug

dealings and connections were lies designed to impress

them (Tr. 51, 54, 59).

rere rerm <=. «es -e bt ee

4

1. a. Petitioners contend (Pet. 10-16) that the testimony

of petitioner Roger Madison that he had received the nar-

cotics he sold to the agents from a government informant

established that they were entrapped as a matter of law.

Even assuming, arguendo, that petitioners would have been

entrapped had they received the narcotics from the in-

formant, there was ample evidence from which the jury

could have concluded that petitioners did not receive the

narcotics from the informant, including Roger Madison's

statements to the government agents relating to his exten-

sive drug dealings and connections.

b. Petitioners also contend (ibid.) that the court should

have instructed the jury that if the jury found that the nar-

cotics sold by petitioners were supplied by the government

informant, they would be entitled to an acquittal. Peti-

tioners rely for this proposition upon United States v.

Bueno, 447 F.2d 903 (C.A. 5), a case decided prior to this

Court's decision in United States v. Russell, 411 U.S. 423.

In Bueno, the Fifth Circuit held that entrapment is estab-

lished when the government supplies the contraband that

the defendant is charged with subsequently selling to gov-

ernment agents.

The question of the continuing vitality of Bueno in the

wake of this Court's decision in United States v. Russell,

supra, is currently pending before this Court in Hampton

v. United States, No. 74-5822, certiorari granted, March

31, 1975. The Court therefore may wish to hold this peti-

tion pending its disposition in Hampton

3Contrary to petitioners’ contention, the instant case does not pres-

ent the additional question whether, once the Bueno defense is asser-

ted, the government then must come forward with some evidence

rebutting the defense. Here, as we have shown, there was ample

evidence from which the jury could have concluded that petitioners

had not received the contraband from the government.

5

2. Petitioners also contend (Pet. 16-19) that the trial

court's instructions to the jury improperly shifted the bur-

den of proof to the petitioners by their failure to state that

inferences adverse to the government could be drawn from

the government's failure to produce the informant. A miss-

ing witness instruction is not necessary, however, where the

informant'’s identity is known to the defendant prior to trial,

and where the defendant fully is aware of her location. See

United States v. Kenney, 500 F.2d 39 (C.A. 4). Here, peti-

tioner Roger Madison knew the informant Rebecca Burley.

He admitted visiting her at her home in the District of Col-

umbia on several occasions (Tr. 67-68). The record reveals

no pretrial motions by petitioners, requesting the inform-

ant’s identity or address. Petitioners do not show, nor do

they contend, that they attempted and failed to locate her '

prior to trial. In these circumstances, the district court did i

not abuse its discretion by failing to give a missing witness ’

instruction.*

'

|

3. Finally, petitioners contend (Pet. 19-21) that they

were denied their Sixth Amendment right to counsel by the

court's refusal to grant them a three to four-week continu-

ance.

Following their arrest, petitioners retained Herbert Bass '

of Philadelphia, Pennsylvania, to represent them. Bass ar-

ranged for J. Ronald Lynch, of Alexandria, Virginia, to be |

local counsel. Bass never filed any pleadings or appearance ;

in this case, nor did he personally contact the court or re-

quest a continuance. Approximately ten days prior to trial,

Bass asked Lynch to investigate the possibility of obtain-

ing a continuance, since Bass was experiencing some health

problems. Bass made no attempt personally to advise the

court of his situation.

'

‘Petitioners also contend that because there was no evidence that

petitioners had any predisposition to commit the offense, the trial ;

court erred in instructing the jury on the question of predisposition.

As we have pointed out, however, there was evidence from which the ;

jury could have concluded that petitioners were predisposed to commit ;

the crime.

EED THROUGH

6

After Lynch advised the court of the potential need for a

continuance, the court asked Lynch to obtain certification

from Bass that he was incapable of continuing law practice

during this period. Bass would not so certify (Hearing

Tr. 3-4). The evening before trial was scheduled to com-

mence, Bass informed Lynch that he would not appear.

Petitioners do not allege that they had ineffective assist-

ance of counsel during trial. Under these circumstances,

the district court acted within its discretion in denying a

continuance. Ungar v. Sarafite, 376 U.S. 575, 589.

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rospert H. Bork,

Solicitor General.

June 1975.

DOJ-1975-06

RUBE OT es: rial bata TOMES we eee LER ED RT RT RN, BAERS arermmeaneen «7.