Petition for Writ of Certiorari — Ghanayem v. United States

~ Supreme Court, U.S.

FILED

95225 2 JUL 17 1995

No. OFFICE OF JHE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

KHADIR GHANAYEM,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID S. MEJIA, ESQ.

Counsel of Record

Three First National Plaza

Suite 650

Chicago, Illinois 60602

(312) 641-3311

Attorney for Petitioner

Midwest .aw Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION PRESENTED FOR REVIEW

Whether the »rosecution failed, as a

matter of law, to present evidence to sup-

port the jury verdict that Khadir Ghanayem

was predisposed, independent of the govern-

ment's acts of inducement and beyond a

reasonable doubt, to violate the law of con-

spiracy to possess cocaine with intent to

distribute.

ii

LIST OF ALL PARTIES TO THE PROCEEDING

IN THE COURT WHOSE JUDGMENT IS SOUGHT

TO BE REVIEWED

i. Solicitor General

United States Department of Justice

Washington, D.C. 20530

2 Khadir Ghanayem

5432 North Neenah

Chicago, Illinois 60656

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW... . -; i

LIST OF ALL PARTIES TO THE PROCEEDINGS

IN THE COURT WHOSE JUDGMENT IS SOUGHT

TO BE REVIEWED . . . * . o . * . . 7. . ii

TABLE OF CONTENTS . . + © © © © © «© * iii

TABLE OF AUTHORITIES . ++ + «+ « « iii-iv

OPINIONS BELOW ..++ ++ * © © # # * 1

JURISDICTION .« «© © e ee e © e@ © © © @ 2

STATUTES AND RULES INVOLVED... -; -; 2-3

STATEMENT OF THE CASE ..+ + «© «+ « « 3-5

Jurisdiction of the District Court . 5

Jurisdiction of the Court of Appeals 6

TRIAL EVIDENCE . ° . ° ~ a e . * . 6-11

REASONS FOR GRANTING THE PETITION:

THIS PETITION FOR WRIT OF CERTIORARI SHOULD

BE GRANTED DUE TO THE SPECIAL AND IMPORTANT

REASON THAT THE COURT OF APPEALS HAS REN-

DERED A DECISION IN DIRECT CONFLICT WITH ITS

OWN PRECEDENT United States v. Hollingswort-

h, 27 F.3d 1196 (7th Cir. en banc. 1994) AND

IN CONFLICT WITH APPLICABLE DECISIONS OF

THIS COURT ON THE LAW OF ENTRAPMENT Jacobson

v. United States, 112 S.Ct. 1535 (1992) )

RE I ies SE ee oe ee, eo a i a a, 11-26

CONCLUSION ..

APPENDICES

TABLE OF AUTHORITIES

Casey vs. United States, 276 U.S.

413 (1928) e . es * o a * — * * 7 - * 17

Gonzalez_ys. United States, 474 U.S.

831 (1985) + * nm > * * _ * . 16

, i112

S.Ct. 1535, 118 L.Ed.2d

174 (1992) . « «© © «© «© « « 12,14,16,19,24

Sherman vs. United States, 356 U.S.

369 7. _ e — - * — + > 7 7. . — > — * . * 19

Sorrells vs. United States, 287 U.S.

435 at 442, 53 S.Ct. 210 at

212, 77 L.Ed. 413 . « « «© «© « « « 14,19,26

United States vs. Evans, 924 F.2d

7° a ee a ee |

, 992 F.2d

755 (7th Cir. 1993) 7° e o ° 2 ° = 7. e © 16

~ Be es

3d. 1196 (7th Cir.

eon Dane. 1994) «© <«seeees 42,146,37,26

- , 757 F.2d

a aE TE ee as a nS i Oe

United States vs. Rivera-Espinoza, 905

7a gee tree Gees SOOO) 6 ke ek cw se

United States vs. Russell, 411 U.S.

423, 435-436, 93 S.Ct. 1637,

36 L.Ed.2d 366 1973 . . « « «© «© «© «© «© « 13

No:

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1995

KHADIR GHANAYEM, Petitioner,

vs.

UNITED STATES OF AMERICA, Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

Khadir Ghanayem respectfully petitions

for a Writ of Certiorari to review the

judgment of the United States Court of

Appeals for the Seventh Circuit.

OPINIONS BELOW

The opinion of the court of appeals

(Appendix B) is reported at 48 Fd.3d 1438.

The opinion of the district court (Appendix

A) is reported at 845 F.Supp. 556.

JURISDICTION

The court of appeals entered its judg-

ment on February 28, 1995 (Appendix B) and

following the entry of a petition for re-

hearing and suggestion for rehearing en

banc, the court of appeals denied the peti-

tion on April 18, 1995 (Appendix C). The

jurisdiction of this Court is invoked pursu-

ant to Title 28, United States Code, Section

1254(1).

STATUTES AND RULES INVOLVED

Title 21, United States Code, Section

841 -- (a) Except as authorized by this

subchapter, it shall be unlawful for any

person knowingly or intentionally -- (1) to

manufacture, distribute or dispense, a

controlled substance.

Title 21, United States Code, section

846 -- Any person who attempts or conspires

to commit any offense defined in this sub-

—Te se ee

SS

chapter shall be subject to the same penal-

ties as those prescribed for the offense,

the commission of which was the object of

the attempt or conspiracy.

Title 18, United States Code, section

2 -- (a) Whoever commits an offense against

the United States or aids, abets, counsels,

commands, induces or procures its commis-

sion, is punishable as a principal. (b)

Whoever willfully causes an act to be done

which if directly performed by him or an-

other would be an offense against the United

States, is punishable as a principal.

Federal Rule of Criminal Procedure 29(c) --

(See Appendix D)

STATEMENT OF THE CASE

Khadir Ghanayem and was charged in a

two-count indictment with conspiring to

possess with intent to distribute cocaine

and attempting to possess with the intent to

distribute cocaine. 21 U.S.C. Sections

841(a)(1) and 846 and 18 U.S.C. Section 2.

Mr. Ghanayem defended on the ground that DEA

Agent William Grant entrapped him into

committing the crime through a number of

meetings, telephone calls and hiring the

defendant at his auto repair business to do

work on the agent's car. The jury found Mr.

Ghanayem not guilty of attempting to possess

cocaine with the intent to distribute, but

guilty of conspiracy to possess with intent

to distribute cocaine. Subsequently, the

district court granted Ghanayem's Rule 29(c)

motion ruling the government failed to

produce evidence to establish petitioner was

predisposed to participate in a drug con-

spiracy, as required to overcome his entrap-

ment defense (Appendix A, pages A-38 to A-

40). The court of appeals reversed the

district court's judgment of acquittal, reinstated

ee en ee

the jury verdict and remanded for sentencing

(Appendix B), on the principal basis that

petitioner's “character and reputation

predisposed him to being involved in a drug

transaction", (Appendix B, page B-12).

Neither Seventh Circuit precedent nor set-

tled decisions of this court allow such a

dubious justification to find predisposition

in an entrapment case. Following remand-

ment, the defendant was sentenced to five

years in the federal penitentiary, the

mandatory minimum sentence required to Title

21, United States Code, Section 841(b) (1)

(B). |

Jurisdiction of the District Court

The district court's jurisdiction was

based on Title 18, United States Code,

Section 3231, which grants original and

exclusive jurisdiction in the federal dis-

trict courts covering all criminal offenses

against the laws of the United States.

Jurisdiction of the Court of Appeals

The jurisdiction of the court of ap-

peals for the Seventh Circuit was based on

Title 28, United States Code, Section 1291,

which confers jurisdiction on the courts of

appeals over final judgments of the district

courts. Title 18, United States Code,

Section 3731, also permits the government to

appeal an order of the district court dis-

missing an indictment after verdict.

TRIAL EVIDENCE

On March 30, 1993, DEA Agent Grant and

a cooperating individual ("CI") went to the

1-2-3 Club on Diversey Avenue in Chicago.

Grant had been told that it was a known

"hangout" for criminals. There, the CI

instead saw Ghanayem, an auto-repairman and

cousin of the principle target of the inve-

stigation Mazen Shunnarah. The CI waved and

AE oY Se se ee Cn

a

poe ee

walked over to talk to Ghanayem. A conver-

sation took place, during which Ghanayem

handed the CI an auto body shop business

card and told him to give him a call if he

ever needed auto repair work. (Appendix A,

pages A-16 to A-18)

The next contact with Ghanayem was on

April 22, 1993. It took place at George's

Auto Body Shop in Chicago, where Grant and

the CI went to see him. Grant had a 1991

Mercedes 300SL convertible and asked Ghanay-

em if he could repair its windshield.

(Appendix A, page A-19) At that time the CI

and Grant steered the conversation to drugs,

asking Ghanayem if he knew anyone who would

want to buy five kilos. According to Grant,

Ghanayem responded that he knew somebody who

might be interested. (Appendix A, page A-20)

Ghanayem however testified that after

discussing the repair of Grant's automobile,

Grant turned the conversation to drugs, to

which Khadir Ghanayem responded that he does

not buy, sell, or do drugs. (Appendix A,

page A-21)

Following that meeting, the defendant

did not contact Mazen Shunnarah, the CI nor

Grant. So, on May 7, 1993, Grant went back

to the body shop. Ghanayem discussed the

repair of Grant's vehicle, but Grant kept

leading the conversation to drugs. Grant

asked Ghanayem if he knew anyone else be-

sides his cousin "that might be interested",

to which Ghanayem replied, "Not off hand,

only one person. You... this is the only

person that I know." (Appendix A, page A-27)

The tape-recorded conversation of May

7, 1993 between Ghaneyem and agent Grant

revealed -- in contradiction to Grant's

testimony that the defendant exhibited

readiness to engage in a drug deal -- that

«6 nt ae et nl AE RE an (al thi tll BR

A ara Nee ihe oi ONL Oe acme da ae

cE + Ria ah ian a ts

the defendant was neither experienced,

willing nor interested in Grant's proposal.

(Appendix A-30) In clear contradiction to

Grant's characterization of defendant's

alleged predisposition, the tape recordings

established that Grant persistently returned

the discussion to drugs while Ghanayem

ultimately went along with Grant after

having been overcome by Grant's enticement.

(Appendix A, pages A-31 to A-32)

In the May 12 and May 20, 1993 meet-

ings, Ghanayem repeatedly discussed auto

repairs while Grant brought up the subject

of drugs. By May 27, 1993, Ghanayem eventu-

ally spoke with his cousin Shunnarah, price

and quantity were discussed and in subse-

quent meetings, Ghanayem discussed the

possibility of future deals and requested a

$1,000.00 commission. (Appendix A, pages A-

32 to A-33) Ultimately, no transaction ever

10

took place between Grant and Shunnarah, but

Khadir Ghanayem was prosecuted and convicted

of conspiracy to possess with intent to

distribute cocaine while acquitted by the

jury of attempted possession of cocaine.

Twenty-nine year old Ghanayem took the

stand in his own defense. His education

consists of one year of high school, after

which he took up trade school and received

a certificate in mechanics. He'd been an

auto mechanic for ten years. He drove a

damaged automobile that he purchased for

$3,000.00. He had $2,000-$3,000 in the

bank, owned no real estate.

When Ghanayem was confronted at trial

with tape recordings and transcripts, the

following colloquy took place:

Q (Assistant United State's Attorney):

Why did you arrange this meeting be-

tween Shunnarah and Agent Grant?

11

A (Defendant): Because Mr. Grant came

by my shop several times and asked me

to call ... I kept ignoring him and

didn't want to do it. And then, fin-

ally, I called for him too, I figured

I would make one phone call. He was

bringing me the car to be fixed, and I

figured I would make one call for him

(Tr. 493) * * * I did this as -- I did

this for Mr. Grant because he kept

bothering me with it. I didn't want

to call Mazen Shunnarah in the first

place. I didn't want to be involved on

drug deals, but he kept coming by, and

kept coming by and pursuing" (Tr. 505)

REASONS FOR GRANTING THE PETITION

THIS PETITION FOR WRIT OF CERTIORARI

SHOULD BE GRANTED DUE TO THE SPECIAL AND

IMPORTANT REASON THAT THE COURT OF APPEALS

HAS RENDERED A DECISION IN DIRECT CONFLICT

WITH ITS OWN PRECEDENT (

, 27 F.3d 1196 (7th Cir. en

banc. 1994) AND IN CONFLICT WITH APPLICABLE

DECISIONS OF THIS COURT ON THE LAW OF EN-

TRAPMENT (Jacobson v. United States, 112

S.Ct. 1535 (1992))

The prosecution failed, as a matter of

law, to present any evidence to support to

support the jury verdict that Khadir Ghanay-

em was predisposed, independent of the

12

government's acts of inducement and beyond

a reasonable doubt, to violate the law of

the conspiracy to possess cocaine with

intent to distribute. The district court

therefore granted Ghanayem's post-trial Rule

29(c) motion, relying on established prece-

dent of this court and Seventh Circuit law.

(Appendix A, pages A-35 to A-36). However,

in reversing the district court's judgment

of acquittal -- on the basis that there was

"evidence of predisposition" -- the court of

appeals emasculated its own precedent in

United States v. Hollingsworth, 27 F.3d 1196

(7th Cir., 1994), ignored this court's

decision in Jacobson v. United States, 112

S.Ct. 1535 (1992), upon its finding that:

"the government proffered evidence that

Ghanayem's character and reputation predis--

posed him to being involved in a drug trans-

action." (Appendix B, page B-12) There was

. Aelineiteaike

13

no such evidence in the record. (See Appen-

dix A, page 38) The district court correctly

observed, "The government presented no

evidence that Ghanayem had ever been in-

volved in, arrested for, or convicted of any

drug offense -- or any other offense * * *

No evidence was presented to Suggest that

Ghanayem ever had anything to do with ille-

gal drug trafficking." (Appendix A, page

11)

In the war on drugs, "it is well set-

tled that the fact that officers or employ-

ees of the government merely afford oppor-

tunities or facilities for the commission of

the offenses does not defeat the prosecu-

tion" United States vs. Russell, 411 U.S.

423, 435 - 436, 93 S.Ct. 1637, 36 L.Ed.2d

366 1973. Government agents, however, may

not originate a criminal design, implant in

an innocent person the disposition to commit

14

a criminal act, and then induce commission

of the crime so that the government may

prosecute. Sorrells vs. United States, 287

U.S. 435 at 442, 53 S.Ct. 210 at 212, 77

L.Ed. 413 (1932). Such is the case here.

Both this court and the United States Sev-

enth Circuit Court of Appeals have ruled

that when the government's quest for cri-

minal convictions leads to the arrest,

prosecution and conviction of an otherwise

law-abiding citizen who, if left alone,

would have never run afoul of the law,

courts will intervene. Jacobson vs. United

States, 112 S.Ct.at 1543 and United States

vs. Hollingsworth, 27 F. 3d 1196 (7th Cir.

1994). Intervene even where juries have

deliberated on contested entrapment evi-

dence, deliberated with entrapment instruc--

tions and rendered verdicts of guilt. In

the present case, the court of appeals

a

15

opinion ignores this precedent. Worse, it

circumvents the law by finding predisposi--

tion evidence that never existed in the

record of evidence.

Ghanayem defended the charge on the

ground that DEA Agent Grant entrapped him.

This was achieved through a series of re-

peated acts of going to the defendant's auto

repair shop, engaging him to do lucrative

repair work on the agent's expensive automo-

bile, and constantly urging him to be the

intermediary between the defendant's drug

dealing cousin Shunnarah and Grant. After

Ghanayem was acquitted of attempted posses-

sion of cocaine, but found guilty of con--

Spiracy, the district court reviewed the

record of evidence and granted defendant's

Rule 29 motion finding that a rational jury

could not have found Khadir Ghanayem guilty.

Following the appropriate standard applica-

16

able to Rule 29, the district court under-

took to determine whether the government

proved any predisposition and found it

presented no evidence to establish that

element. (Appendix A, pages A-16 to A-32)

See, United States vs. Grol], 992 F.2d 755,

759 (7th Cir. 1993), United States vs.

Perez-Leon, 757 F.2d 866, 871 (7th Cir.),

Gonzalez vs. United States, 474 U.S. 831

(1985), United States vs. Rivera-Espinoza,

905 F.2d 156, 158 (7th Cir. 1990).

Entrapment was established as Mr.

Ghanayem showed (first) that he was induced

to commit the offense and (second) the

government could not prove that he was

disposed to commit the offense prior to

being approached by the government. See,

Jacobson vs. United States, 112 S. Ct. at 22

1540. In Ghanayem's case both at trial and

on appeal inducement was not in issue.

17

Predisposition, is not a purely mental

state, the state of being willing to swallow

the government's bait. (United States vs,

Hollingsworth, 27 F.3d. 1196 at 1200). This

court has stated, "the defendant must be so

situated by reason of previous training or

experience or occupation or acquaintances

that it is likely that if the government had

not induced him to commit the crime some

criminal would have done so." Further, "it

is different when the defendant is not ina

position without the government's help to

become involved in illegal activity for the

government ‘may not provoke or create a

crime, then punish the criminal, its cre-

ature'." (Hollingsworth 27 F.3d at 1200,

citing Casey vs. United States, 276 U.S.

413, 423, 48 S.Ct. 373, 376, 72 L.Ed. 632

(1928). Ghanayem was not proven by the

government to be a man of experience or

18

occupation to be a cocaine trafficker. The

court of appeals' conclusion that he had a

reputation or character for narcotic traf-

ficking is belied by the record. He is a

29-year old auto repairman. He'd been an

auto mechanic for 10 years when by happen-

stance -- because the DEA had targeted his

cousin Mazen Shunnarah as a cocaine traf-

ficker -- he was approached by the CI and

DEA Agent Grant. Absent from the proof at

trial -- and the Seventh Circuit's opinion -

- is any evidence that he had ever before

engaged in such activity. (See Appendix A,

page 11)

Instead of predisposition evidence, the

decision of the Court of Appeals focuses on

defendant's acts and words after he had been

entrapped by the efforts of the undercover

agent to reach the questionable conclusion

that Mr. Ghanayem possessed a "reputation"

19

and "character" for narcotics. In Jacobson

vs. United States, 112 s.ct. 1535 at 1541,

this court ruled that the government must

prove predisposition as independent -- not

the product of the attention the government

directed at the defendant. See Sorrells vs.

United States, 287 U.S. 435 at 442 and

Sherman vs. United States, 356 U.S. 369 at

372. The present court of appeals decision

blindly ignores this fundamental, settled

principal of law. At this case's incep-

tion, Grant and the CI went to the 1-2-3

Club in Chicago because the CI had told

Grant that it was a known hangout for crimi-

nals. The main target of the investigation

was Mazen Shunnarah. There, by pure acci-

dent, the CI saw Khadir and struck up a

conversation with hin. They talked only

about auto repair. The next contact with

Ghanayem took place at his shop where Grant,

20

acting in an undercover capacity, and the

CI, went there to meet with him in an effort

to have him contact his cousin Shunnarah.

The defendant discussed automobile repair,

but the agent and CI steered the conversa-

tion to narcotics. The defendant told him

that his cousin had moved to Lexington,

Kentucky. He had not spoken with Shunnarah

for six months.

Then, and in all subsequent times, each

time the defendant tried to discuss the

repair of the agent's car, Grant repeatedly

turned the discussion to narcotics. While,

according to Grant, the defendant would

attempt to arrange a cocaine transaction and

would make telephone calls, the government's

tape recordings, transcripts and the testi--

mony of the defendant established that

Ghanayem had no prior experience nor incli-

nation to engage in a cocaine deal. (Appen

dix A, page A-25)

The district court examined the record

and ruled Grant's testimony could not be

taken in a vacuum considering the taped

conversations introduced by the government.

These tapes, which the government introduced

as authentic, undercut Agent Grant's testi-

mony regarding predisposition on the part of

Ghanayem. The May 7, 1993, tape recording

proved that after discussing repairs on the

car Grant broached the subject of cocaine

(Gov't. Exhibit 9 at 4), to which defendant

stated that he had been unable to reach

Shunnarah when he stammered:

"He never called me, a was wanting

a...wasn't able to get a hold of me,

he couldn't get a hold of it."

When the defendant turned the discussion

back to car repairs, Grant turned it back to

cocaine, asking "Do you know anyone else

(other than Shunnarah] that might be inter-

22

ested?" (Government Exhibit 9 at 6), to

which the defendant replied, "not off hand.

Only one person. You..this is the only

person that I know, that you know, he's a

he's a close friend of mine..." (Government

Exhibit 9 at 6). In the view of the dis-

trict court, this established that Ghanayem

was not an experienced drug dealer and was

without connections to his cousin's drug

business. Rather, Khadir Ghanayem was a

confused and ambivalent person, in over his

head. The government tape recordings dis-

proved that the defendant promptly accepted

Grant's offer to arrange a drug deal.

(Appendix A, pages A-24 to A-32)

The tape recorded conversations demon-

strated that on two occasions Ghanayem

deflected drug conversations back to the car

repairs, but Grant repeatedly turned the

discussion back to cocaine. Ghanayem was

23

Clearly unable or unwilling to contact

Shunnarah. The district court thus ruled

that he would not have done so without the

repeated urging of Agent Grant. Signifi-

cantly, Ghanayem did not call the informant

or Agent Grant in any of the intervening

weeks between April and May. Judge Conlon

concluded that it was only after Agent Grant

overcame defendant's reluctance that Ghanay-

em finally followed through by contacting

his cousin to set up a deal. (Appendix A,

pages A-28 to A-29)

On May 12, 1993, when Grant visited the

shop, Ghanayem discussed car repairs, but

Grant again brought up the subject of drugs.

In this and subsequent meetings, defendant,

having been overcome by the agent, discussed

the possibility of multiple deals and requ-

ested a $1000.00 commission on the trans-

action. While a reasonable jury could

24

conclude that Ghanayem was a willing parti-

cipant in the drug conspiracy after May 12,

this occurred over two months after many

discussions. While defendant ultimately

_ became a participant in the drug deal, that

does not support a reasonable inference that

he was predisposed to participate. (See

United States vs. Evans, 924 F.2d 714, 716

(7th Cir. 1991)). The court of appeals use

of post-entrapment words and conduct to

establish predisposition is contrary to

law. In Jacobson vs. United States 112 S.Ct.

1535, 118 L.Ed.2d 174 (11992), the defendant

was prosecuted for buying child pornography.

The pornography was furnished to him by

government agents, who were aware of his

interest in kinky sex because he had brought

magazines that catered to this interest.

Significantly, Jacobson, like Khadir Ghana-

yem, at no time exhibited a reluctance to

25

purchase such magazines provided to him by

agents of the government. The facts of

Jacobson reveal that the government, as

here, did not offer Jacobson any inducements

to buy pornographic magazines or threaten

him with harm if he failed to buy then.

This court found that while the evidence

indicated a generic inclination to act

within a broad range, not all of which is

criminal, such does not prove nor does it

establish predisposition. This court ruled:

"Petitioner's ready responses to these

solicitations cannot be enough to establish

beyond a reasonable doubt that he was pre-

disposed prior to the government acts in-

tended to create predisposition, to commit

the crime of receiving child pornography

through the mail...the evidence that Peti-

tioner was ready and willing to commit the

offense came only after the government had

devoted two and one half years to convincing

him that he had or should have the right to

engage in any behavior that proscribed by

law" (112 S.Ct at 1543).

Here, the district court, applied the above

standard and that of the Seventh Circuit

26

(United States vs. Hollingsworth, 27 F.3d.

1196 (7th Cir. en banc. 1994)) in ruling

that law enforcement officials went too far

when they "implant in the mind of an inno-

cent person the disposition to commit the

alleged offense and induce its commission in

order that they may prosecute." (Sorrells

vs. United States, 287 U.S. 435 at 442). The

present decision stands in conflict with

such eeenibatle: Petitioner was entrapped to

commit a crime which without government

inducement would never have committed.

CONCLUSION

The petition for writ of certiorari

should therefore be granted.

Respectfully submitted,

DAVID S. MEJIA, ESQ.

Three First National Plaza

Chicago, Illinois 60602

(312) 641-3311

Attorney for Petitioner