Petition for Writ of Certiorari — Edenfield v. United States

Supreme Court

Pitebe

931965 JUN -8 199

BPPice OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

JOHN M. EDENFIELD end

JAMES C. EDENFIELD,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOHN R. MARTIN

MARTIN BROTHERS, P.C.

44 Broad Street, N.W.

500 Grant Building

Atlanta, GA 30303

(404) 522-0400

Counsel for Petitioners

UEST P R REVIEW

I.

WHETHER IN JUDGING A GOVERN-

MENT MISCONDUCT CLAIM UNDER

THE DUE PROCESS CLAUSE THE

IMPROPER MOTIVATION OF GOVERN-

MENT AGENTS IN PURSUING A PO-

TENTIAL TARGET, HERE POLITICAL

REVENGE BY A SHERIFF AGAINST

AN IMPORTANT SUPPORTER OF HIS

OPPONENT IN A RECENT ELECTION,

IS IRRELEVANT.

It.

WHETHER IN JUDGING A GOVERN-

MENT MISCONDUCT CLAIM UNDER

THE DUE PROCESS CLAUSE THE

DEGREE OF SUSPECTED CRIMINAL

INVOLVEMENT BY THE TARGETS OF

THE INVESTIGATION IS IRRELE-

VANT; I.E. WHETHER THE SAME

LAW ENFORCEMENT CONDUCT IS

PERMISSIBLE WITH RESPECT TO

ALL "DISTRIBUTORS" OF COCAINE,

WHETHER THEY BE “HARD CORE"

PROFESSIONAL DISTRIBUTORS FOR

PROFIT OR "SOCIAL" DISTRIBU-

TORS WHO MERELY SHARE COCAINE

WITH FFIENDS OR "DISTRIBUTE"

SMALL QUANTITIES TO FRIENDS

FOR COST.

TABLE OF CONTENTS

Page

Questions Presented for Review..... i

Table Of AvuthoFities@. ici. .cccccs soe A484

Opinion Below.......... ceovecececeiec 2

Juri sGsOuiae . i ikiG. d. i ee 2

Relevant Constitutional Provision.. 3

Statement of the Cage:

(A) Course of Proceedings and

Disposition Below............ 4

(B) Statement of Facts............ 7

Reasons for Granting Writ.......... 15

Conc lusiomin's. (OU CEE . oe Be cd Ses «686

Certificate of Service............. 32

Apperm@is.. .ciéii. Bi. CH. ee eeace la

ii

Cases Page

Vv. “eee ’

112 S.Ct. 1535 (1992)........--4-- 24a

Vv , 425 U.S.

484, 96 S.Ct. 1646, 48 L.Ed.2d 113

TASTES) ccc tcaeevwveveceee 24,25,26,27,28

United States v. Edenfield, 995 F.2d

197 (11th Cir. 1993)..... 2,6,11,18,28

United States v. Falk, 479 F.2d 616

(F7th Cir. 1973) ..cccccccccccccccee 21

U tat v. Gordon, 817 F.2d 1538

(Lith Cir. 1987) ...ccccccccccccees 21

es v. Rey, 811 F.2d 1453

(Lith Cir. 1987) ....ccccecccccees 6la

United States v. Richardson, 764 F.2d

See Ue Gee BOOED co cccscccoes 62a

United States ». Rochin, 342 U.S. 165

72 S.Ct. 205, 96 L.Ed.2d 183

(1952) -ccccccccccccscccccccccscces 20

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

93 S.Ct. 1637, 36 L.Ed.2d 366

PEPE cheese e66666 8 0606 15,20,59a, 64a

United States v. Shearer, 794 F.2d 1545

CR Ree Gees BEOOP ccccccecccces 3la,6la

iii

United States v. Steele, 461 F.2d 1148

(9th Ciz. Bea beh asasaweesasrecneas 21

United States v. Tobias, 662 F.2d 381

(Sth Cir. 1981)..........20,25a, 29a, 30a,

36a,40a,59a, 64a

United States v. Twiggs, 588 F.2d 373

(3rd Cir. 1978)........29a,30a,40a,60a

United States v. Williams, 954 F.2d 668

CZEGE GES. BORE) 6 cd eesedvssrreevee 63a

Statutes

LO: Bi Oe .. GA? . ncccnws eo ccvese jae ce. 57a

26 U.B.C. BFTadccccccvcecosescssese 3

ZL GU.B.C. BOE4L. cccccccvevcssceseosecs 57a

21 U.S.C. §841(A) (1) .......-2-2-ee 5

21 U.B.C. 8 BOC cccescccccccccce os S78

28 U.S.C. §$1254(1)......... secowe 3

O.C.G.A. 816-139-311. ccccccccsccecs 14a

0O.C.G.A. §16-13-31 (a) (1) (A) eee 9, 15a, S4a

iv

a a RO + - PUD § RDP wd

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

JOHN M. EDENFIELD and

JAMES C. EDENFIELD,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The potitionsue, JOHN M. EDENFIELD

and JAMES C. EDENFIELD, respectfully pray

that a writ of certiorari issue to review

the judgment and opinion of the United

States Court of Appeals for the Eleventh

re

Circuit, entered in the above entitled

proceeding on July 14, 1993.

OPINIONS BELOW

The decision of the United States

District Court for the Northern District

of Georgia dismissing the indictment

against Petitioners on due process

grounds is not reported. The decision of

the Court of Appeals for the Eleventh

Circuit reversing and vacating the deci-

sion of the District Court for the North-

ern District of Georgia is reported at

995 F.2d 197 (llth Cir. 1993). Both

opinions are set forth in the appendix

hereto.

JURISDICTION

On May 26, 1992, the District Court

for the Northern District of Georgia

diemissed the indictment against the

Petitioners John M. Edenfield and James

C. Edenfield due to law enforcement

misconduct in violation of the Due Pro-

cess Clause. The United States appealed

to the Eleventh Circuit Court of Appeals,

pursuant to 18 U.S.C. §3731. On July 17,

1993, the Eleventh Circuit reversed the

District Court. On March 28, 1994, the

Eleventh Circuit denied a timely filed

petition for rehearing and suggestion for

rehearing en banc. This Court has juris-

diction to review the decision of the

Eleventh Circuit under 28 U.S.C.

§1254(1).

Fifth Amendment to the United States

Constitution. :

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases

arising in the land or naval forces, or

in the Militia, when in actual service in

time of War or public danger; nor shall

any person be subject for the same of-

fense to be twice put in jeopardy of life

or limb; nor shall he be compelled in any

criminal case to be a witness against

himself, nor be deprived of life, liber-

ty, or property, without due process of

law; nor shall private property be taken

for public use, without just compensa-

tion."

STATEMENT OF THE CASE

(A) Course of Proceedings and Dis-

position in the Courts Below

Petitioners John M. Edenfield and

James C. Edenfield (hereinafter also

referred to as "Defendants" or "John

a

Edenfield" or "James ("Jim") Edenfield")

were charged by the United States in a

four count indictment with conspiracy and

possession with intent to distribute

cocaine under 21 U.S.C. §§841(a)(1) and

846. (R1:1; R2:1) To this indictment

they pled not guilty. (R1:3; R2 74).

The Defendants filed timely motions

to dismiss the indictment under the Due

Process Clause because of law enforcement

misconduct in the investigation of their

case. (R1:9, 34; R2:22, 34). Three days

of testimony was heard and 53 exhibits

received into evidence. (R3; R4; R5). The

magistrate recommended that the motions

be denied. (R1:58; R2:58). On May 26,

1992, District Court Judge Robert lL.

Vining, Jr., however, rejected the magis-

trate’s recommendation and dismissed the

indictment on due process grounds.

(R1:62; R2:62). Appendix Exhibit "A".

The Government appealed to the Court

of Appeals for the Eleventh Circuit.

(R1:66; R2:66). On July 14, 1993, a

panel of the Eleventh Circuit granted the

Government’s appeal, vacating the Dig-

trict Court’s order dismissing the in-

dictment and remanding the case for

further proceedings. United States v.

Edenfield, 995 F.2d 197 (11th Cir. 1993).

Appendix Exhibit "B". The Defendants

filed a timely petition for rehearing and

suggestion for rehearing en banc, which

was denied on March 28, 1994. Appendix

Exhibit "Cc". A stay of the mandate

pending a petition for writ of certiorari

to this Court was granted on May 16,

1994. Petitioners now file a timely

petition for writ of certiorari.

(B) Statement Of Facts Necessary

to Argument Of The Issues

The District Court found that in the

| summer and early fall of 1989, Merrill

| Greathouse, Sheriff of Upson County,

Georgia, and other law enforcement

officials, believed that the Edenfields,

who are fraternal twins, were recreation-

al users of cocaine who had made rela-

tively small purchases and who on occa-

sion gave cocaine to friends or sold

small amounts (a gram or less) at cost.

It was known that the Edenfields were not

drug traffickers for profit. (R1:62:2,19;

R2:62:2,19).

In 1988, Sheriff Greathouse had

stood for re-election in largely rural

Upson County. John Edenfield, Sr., the

father of the Defendants, had been a

previous supporter of Sheriff Greathouse,

but there had been an angry "falling out"

7

— a a i

over what John Edenfield, Sr. thought,

rightfully, was an unwarranted and base-

less investigation of a loyal employee.

John Edenfield, Sr. became a supporter of

Sheriff Greathouse’s opponent, who lost

to Sheriff Greathouse in an acrimonious

and close election.

The District Court found that the

subsequent investigation of the Eden-

fields in 1989 by Sheriff Greathouse and

others to implicate the Edenfields in a

cocaine trafficking charge under Georgia

law was motivated by political and per-

sonal revenge by Sheriff Greathouse

against the Edenfields due to the politi-

cal opposition of the Edenfields to

Sheriff Greathouse during the re-election

campaign. The Court specifically found

that Sheriff Greathouse and others were

seeking "to improperly employ their

significant power and resources to settle

personal scores." (R1-62:3, 15; R2-

62:3,15).

The District Court further found

that in order to extract vengeance on the

Edenfields, Sheriff Greathouse and others

entered into a contingent fee arrangement

with an informant, Tony Watson. Sheriff

Greathouse promised Watson a sizable

reward if he were able to lure or to

engineer an Edenfield to be in sole

possession of more than an ounce of

cocaine. Possession of more than an

ounce was critical, because under the

Georgia drug trafficking statute, the

possession of this amount or more re-

quires a minimum term of imprisonment of

10 years and a $100,000 fine, without the

possibility of probation. 0.C.G.A. §16-

13-31(a) (1) (A). No effort was made to

train or control the informant. He was

never advised not to entrap the Defen-

dants. Indeed, Sheriff Greathouse knew

that the informant was often drunk and

probably using cocaine himself while

working undercover for the Sheriff. (R1-

62:7-8, 15-17; R2-62:7-8, 15-17).

Finally, the District Court found

that although law enforcement officials

knew that the Edenfields were not drug

traffickers for profit, they nevertheless

endeavored to "get" an Edenfield in

possession of an amount of cocaine suffi-

cient to make a trafficking case under

Georgia law. The agents arranged for

their informant to purchase more than an

ounce of cocaine on November 10, 1989,

from a source unknown to Jim Edenfield,

but arranged by the informant. The

informant’s ruse was that he wanted to

10

ASI crag A gh A SAR tet AA Chinas Nh

buy over half an ounce for himself in

addition to what Jim Edenfield wanted to

purchase so that more than an ounce would

be obtained. Instead of keeping the

packages separate, however, the informant

_gave all of the cocaine to Jim Edenfield

for his transportation back to their

‘homes in Upson County and formulated an

excuse to exit the car so that Jim Eden-

field would be by himself with over an

ounce of cocaine at the time that the

arrest signal was given. (R1-62:8-10,

17-20; R2-62:8-10, 17-20).

Prior to the November 10, 1989

incident, there had been at least 4

separate "controlled" buys of cocaine by

the informant from the Edenfields.* On

1Although the Court of Appeals in-

correctly states that these were buys of

"one-eighth ounce amounts of cocaine"

(995 F.2d at 199), im fact only two of

(continued...)

11

each of these occasions the investigating

officers had clear evidence of the Eden-

fields’ involvement in cocaine. However,

no search warrant was executed, or arrest

made, because the investigative agents

were not content with a simple possession

or a small distribution case against the

Edenfields. Instead, they would be

satisfied with no less than a trafficking

charge, i.e. possession of more than an

ounce, the contingent fee arrangement

they had made with their informant. (R1-

62:4-7, 16; R2-62:7, 16).

The District Court found that al-

though no particular circumstance was

controlling, the totality of the above

actions constituted misconduct "so egre-

gious as to offend principles of due

*(...continued)

the purchases were for that amount. The

other two were significantly less.

12

process" and require dismissal. (Rl-

61:20; R2-62:20). This conclusion made

it unnecessary for the Court to consider

other evidence of misconduct marshalled

by the Defendants, including efforts to

prevent the defense from learning of the

improper scheme of the investigating

officers, destruction of evidence by law

enforcement officials and perjury by law

enforcement witnesses regarding their

misconduct.

The District Court summarized its

findings as follows:

While no one factor is con-

trolling in this matter the

Court finds that given the

political and personal inter-

est of law enforcement offi-

cials involved in this case,

the preselection of the inves-

tigatory target, the govern-

ment’s entering into a contin-

gent fee agreement with an

informant to get an Edenfield,

and the over-involvement of

the informant as an agent of

the government in the planning

13

and execution of the crime

charged, law enforcement mis-

conduct in this case is so

egregious as to offend princi-

ples of due process. The gov-

ernment whether state or fed-

eral, is supposed to be in the

business of investigating and

intercepting crime in order to

punish and deter wrongdoers.

The government may not initi-

ate crimes. A sense of order-

ed justice does not allow for

law enforcement activity which

results in the preselection of

a particular individual for

investigation and which re-

sults in law enforcement

agents acting to ensure that a

more serious crime is commit-

ted by that targeted individu-

al as a result of the investi-

gation than would have been

committed without the acts of

the government. (R1-62:20;

R2-62:20). (Appendix Exhibit

"As, p. 26).

14

REASONS FOR GRANTING THE WRIT

A. Introduction

Petitioners recognize that due

process challenges for outrageous govern-

ment conduct are by their very nature

fact-specific. What might be shocking to

the "universal sense of justice", United

States v. Russell, 411 U.S. 423, 432, 93

S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973),

to one judge might not be similarly

shocking to the same "univerral sense of

justice" of another. This point was

never made more clearly than in this

case, where the District Court was of-

fended by the circumstances of the gov-

ernment investigation, while the Circuit

Court, adopting the factual conclusions

of the District Court, was unimpressed

with the Petitioners’ claims of outra-

geous misconduct.

15

Ce

Of course, resolution of fact-spe-

cific questions are not typically subject

to Supreme Court review. However, here,

in diminishing the significance of sever-

al of the factors of government miscon-

duct found by the District Court, the

Circuit Court applied questionable legal

analyses contrary to Supreme Court au-

thority or without legal precedent and of

doubtful validity.

16

B. Political Motivation

THE CIRCUIT COURT ERRED AND

MISAPPLIED SUPREME COURT AU-

THORITY IN HOLDING THAT THE

| MOTIVATION OFr GOVERNMENT

| AGENTS IN PURSUING A POTENTIAL

: TARGET, HERE POLITICAL REVENGE

BY A SHERIFF AGAINST AN IMPOR-

TANT SUPPORTER OF HIS OPPONENT

IN A RECENT ELECTION, IS IR-

RELEVANT IN JUDGING THE *“"TO-

TALITY OF CIRCUMSTANCES" OF

GOVERNMENT MISCONDUCT INVOLVED

IN THE INVESTIGATION AND PROS-

ECUTION OF A DEFENDANT.

The District Court clearly found

that Sheriff Greathouse’s intensive

| investigation of the Edenfields, includ-

| ing the engagement of Tony Watson as a

'contingently motivated informant to be

paid only upon producing all of the

evidence necessary to convict an Eden-

field of trafficking in cocaine under

Georgia law, was motivated by the desire

' to obtain political revenge against the

| Edenfields. This political and personal

| motivation was one of the “totality of

17

circumstances" emphasized by the District

Court in finding a due process violation.

As the District Court found, "While law

enforcement should be given great flexi-

bility in investigating crime, to main-

tain justice, fairness and decency in the

criminal justice process, law enforcement

officials cannot be allowed to improperly

employ their significant power and re-

sources to settle personal scores." (R1-

62:15, 20; R2-62:15, 20). (Appendix

Exhibit "A", p. 15)

The Circuit Court, however, found

the political and personal motivations of

Sheriff Greathouse to be "irrelevant", at

least for "due process purposes." 995

F.2d at 200. (Appendix Exhibit "B").

Without citation to any authority in

support of its position, the Circuit

Court opined that due process claims deal

18

‘ only with "outrageous misconduct" (empha-

sis in original) and "an officer’s possi-

ble motive" is of no concern. 995 F.2d at

200. According to the Circuit Court, the

motivation of law enforcement officers,

no matter how inappropriate or contrary

to principles of "fundamental fairness"

uniformly accepted in a free society,

should not even be considered in judging

the "totality of the circumstances"

| involved in a law enforcement misconduct

claim under the Due Process Clause.

Petitioners know of no case sup-

porting the Circuit Court’s position. No

distinction between "conduct" and "mo-

tive", even if one can intelligently be

drawn, has ever appeared in the case law

regarding government misconduct claims.

| Courts are directed to consider the

"totality of the circumstances" whatever

19

they may be, "with no single factor

controlling". See, e.g., United States

v. Tobias, 662 F.2d 381, 387 (5th Cir.

1981). Moreover, the ultimate question

is whether the actions of the government

violated "that ‘fundamental fairness

shocking to the universal sense of jus-

tice’, mandated by the Due Process

Clause." United States v. Russell, 411

U.S. 423, 431-432, 93 S.Ct. 1637, 1643,

36 L.Ed.2d 366 (1973); United States v.

Rochin, 342 U.S. 165, 172, 72 S.Ct. 205,

209, 96 L.Ed.2d 183 (1952). Under this

test both logic and intuition calls for

consideration of all factors involved,

including the nature of the officer’s

motives.

A typical citizen in judging whether

or not government conduct shocked his or

her “universal sense of justice" would

20

‘certainly not exclude the reasons behind

=

anaes tad

eT nba PSA tes dle! SEPA: Alek a aaa Meal

the officers’ conduct. Why should the

courts? Afterall, the reason that we

want to know whether or not the target of

a contingent fee arrangement was "“pre-

selected" is for fear that improperly

motivated law enforcement officials would

target their guile and substantial re-

> sources to induce someone to commit a

crime they would not otherwise commit.

Moreover, in other contexts the motiva-

tion of investigators or prosecutors,

particularly political motivations which

are rightfully subject to careful scruti-

ny in a democratic society, are of para-

-mount importance. Cé£., United States v.

Gordon, 817 F.2d 1538, 1541 (11th Cir.

1987) (Selective prosecution claim based

upon prosecution motivated by a desire to

punish "the principal political organiza-

21

tion representing blacks" with the assis-

tance of the "rival white political

organization."); United States v. Falk,

479 F.2d 616, 623 (7th Cir. 1973) (en

banc) (Improper selective prosecution of

vocal draft resister in order to punish

him for his opposition to the Vietnam

war); United States v. Steele, 461 F.2d

1148 (9th Cir. 1972) (Selective prosecu-

tion of participant in census resistance

movement).

To exclude political motivations, no

matter how inappropriate or dangerous to

a free society, from any consideration in

determining the "totality of the circum-

stances" in a due process challenge to a

prosecution as somehow "irrelevant", as

would the Circuit Court here, eliminates

from the determination of such cases

important evidence particularly relevant

22

Sto the interests at stake, namely the

: "universal sense of justice." This Court

should therefore review this case by

: issuing a Writ of Certiorari to correct

this mistake of the Eleventh Circuit.

La Keele biOs Rue

23

C. Degree of Criminal Involvement

THE CIRCUIT COURT ERRED AND

MISAPPLIED SUPREME COURT AU-

THORITY IN HOLDING THAT IN

JUDGING A GOVERNMENT MISCON-

DUCT CLAIM UNDER THE DUE PRO-

CESS CLAUSE NO DISTINCTION

SHOULD BE DRAWN WITH RESPECT

TO THE DEGREE OF SUSPECTED

CRIMINAL INVOLVEMENT BY THE

TARGETS OF THE INVESTIGATION;

I.E. WHETHER THE SAME CONDUCT

IS PERMISSIBLE WITH RESPECT TO

ALL "DISTRIBUTORS" OF COCAINE,

WHETHER THEY BE "HARD CORE®

PROFESSIONAL DISTRIBUTORS FOR

PROFIT OR "SOCIAL*® DISTRIBU-

TORS WHO MERELY SHARE COCAINE

WITH FRIENDS OR "DISTRIBUTE*

SMALL QUANTITIES TO FRIENDS

FOR COST.

In Hampton v. United States, 425

U.S. 489, 96 S.Ct. 1646, 48 L.Ed.2d 113

(1976) this Court discussed the factors

to be considered in a due. pro-

cess/fundamental fairness challenge to a

cr minal conviction based upon the outra-

geousness of police behavior. There,

three members of the Court, Chief Justice

24

Jpurger, then Justice Rehnquist and Jus-

tice White, opined that due process

principles would never prevent the con-

?viction of a predisposed defendant re-

\gardless of the outrageousness of police

) conduct in investigating and prosecuting

| the case. Justices Powell and Blackmun

| concurred in the judgment of the Court

S ekoléine the convictions of the defen-

dant, but, however, refused "to join the

\ plurality in concluding that, no matter

. what the circumstances, neither due

| process principles nor our supervisory

) power would support a bar to conviction

in any case where the Government is able

_ to prove predisposition." 425 U.S. at

495, 96 S.Ct. at 1653. According to

| Justices Powell and Blackmun, although

the cases would be "rare", a conviction

would nevertheless be barred when police

25

3

1

Z

4

&

3

4

f

3

4

a

;

:

conduct reaches "a demcnstrable level of

outrageousness." 425 U.S. at 495 n.7, 96

§.Ct. at 1653 n.7. The three dissent-

ers, Justice Brennen, Stewart and Mar-

shall, agreed and found sufficient

misconduct in Hampton to vacate the

conviction.’

An important, and often overlooked,

portion of the crucial concurring opinion

of Justices Powell and Blackmun is the

position advanced by the justices that

the outrageousness of police conduct must

be judged in relation to the "widely

varying degrees of criminal involvement"

of the individuals subject to police

investigation. Using narcotics as an

example, the justices noted that the

Justice Stevens took no part in

the consideration or decision of the

case.

26

"criminal involvement of pushers varies

)widely." On one end of the spectrum is

) the "hard core professional in the ‘busi-

: ness’ on a large scale and for years" and

: on the other end of the spectrum is "the

: high school youth whose ‘pushing’ is

| limited to a few of his classmates over

a short span of time." Although in both

situations the defendant is a predisposed

"pusher", the obvious differences in the

circumstances should be relevant in

judging the outrageousness of the govern-

ment conduct "relative to the circunm-

stances." 425 U.S. at 494 fn 5, 96 S.Ct.

at 1652 fn 5. What "fundamental fair-

ness" and the "universal sense of jus-

tice" might countenance in the investiga-

tion of a suspect at one end of the

continuum of "predisposed activity" might

not be similarly acceptable for investi-

A 8A Ce NN Cink wl vite Ri TD batt cc ip Matin hae ida

aE Vie? tet: ihc A

27

+ 24

gation of a suspect at the other end of

the continuum.

Here, the Circuit Court totally

ignored these admonitions in the opinion

of Justices Powell and Blackmun, critical

to the majority in Hampton. The Circuit

Court described the defendants as "long-

time and admitted distributors", 995 F.2d

at 201, as if all cocaine "distributors"

are the same. The Edenfields, who the

District Court found "were users of

cocaine and would sometimes distribute

cocaine to others in amounts of a gram or

less, purely on a social basis" and never

"for profit or in large amounts" (R1-

62:2; R2-62:2), may not qualify as a

"high-school youth" whose "pushing is

limited to a few of his classmates over

a short span of time," but their criminal

involvement was much closer to the "high-

28

; school youth" end of the spectrum than

} the "hard core professional" at the other

; end of the spectrum in the concurring

3 opinion of Justices Powell and Blackmun.

The District Court in judging the

totality of the circumstances of the law

enforcement conduct in this case followed

the directions of Justices Powell and

Blackmun by considering the degree of the

A a jae

nly

suspected criminal involvement of the

+Defendants in deciding the due process

claim. The Circuit Court in determining

\the outrageousness of the law enforcement

officials misconduct ignored the direc-

'tions of this Court, lumped all "distrib-

utors" together, and failed to weigh the

investigative techniques used against the

seriousness of the suspected criminal

_ involvement of the Defendants. This was

}a fundamental misapplication of binding

E 29

authority of the Supreme Court which

should be corrected by this Court through

granting the requested Writ of Certiora-

ri.

The opinion of the Eleventh Circuit

in this case carved out an important new

evidentiary rule in government misconduct

claims, namely that the motivation of law

enforcement officers is in all cases

irrelevant, which is not only without

precedent but is illogical and unwise.

This holding should be corrected. Simi-

larly, in reaching its decision, the

Eleventh Circuit refused to apply or

misapplied the directions of this Court

that the degree of the suspected criminal

involvement of a defendant should be

factored into the decision regarding the

30

ee ee ee ee

outrageousness of the investigative tech-

niques employed. Again, this erroneous

conclusion by the Circuit Court should be

a - eo

corrected by this Court. For each of

ithese reasons, and in combination, the

Noe ST

Petition for a Writ of Certiorari should

‘be granted.

ss

Respectfully submitted,

MARTIN BROTHERS, P.C.

— ,

J R. Martin

ar No. 473325

'44 Broad Street, N.W.

'500 Grant Building

Atlanta, GA 30303

' (404) 522-0400

31

IN THE

OF THE UNITED STATES

TERM 1993

SUPREME COURT

OCTOBER

JOHN M. EDENFIELD and

JAMES C. EDENFIELD,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PROOF OF SERVICE

I, JOHN R. MARTIN, do declare that

on this date, June 7, 1994, pursuant to

Supreme Court Rules 29.3 and 29.4, I have

served the attached PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT on each

party to the above proceeding, or that

party’s counsel, and on every other

32

\person required to be served by deposit-

Jing an envelope containing the above

document in the United States mail prop-

J erly addressed to each of them and with

_first-class postage prepaid.

|

A The names and addressed of those

i served are as follows:

|

Mary Jane Stewart

: Assistant United States Attorney

; 1800 Richard Russell Building

: 75 Spring Street, S.W.

Atlanta, GA 30303

Counsel for Respondent

3

é

é

Hon. Drew Days, III

3 Solicitor General

3 Main Justice Building, Room 5143

10th & Constitution

Washington, D.C. 20530

Counsel for Respondent

Oe a ee ae

John M. Edenfield

James C. Edenfield

P.O. Box 1057

Thomaston, GA 30286

Petitioners

Jo . Martin

Counkél for Petitioners

33