Petition for Writ of Certiorari — Johnston v. United States

Supreme Oourt, U.g. "

FILED i,

96 449 yu 2 4 1996

-™ OFFICE 0; THE CLERK

In The

Supreme Court of the United States

October Term, 1995

S

BERYLE JOHNSTON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari To The

United States Court Of Appeals, Eleventh Circuit

°

PETITION FOR WRIT OF CERTIORARI

F. Westey BLANKNER, Jr., Esq.

217 E. Ivanhoe Blvd., North

Orlando, Florida 32804

(407) 894-0341

Fl. Bar No.: 241784

Attorney for the Petitioner

COCKLE LAW BRIEF PRINTING CO., (600) 225-6964

OR CALL COLLECT (402) 342-2831

\\

~ ee

QUESTIONS PRESENTED FOR REVIEW

1. Whether the prosecution violated the dictates of

Doyle v. Ohio, by questioning and cross-examining wit-

nesses and the accused on the accused’s post-arrest

silence?

2. Whether this Court should expand the Doyle v.

Ohio decision to include within its limitation of cross-

examination questioning and prosecutorial comment on

the accused’s post-arrest silence to cover not only

post-Miranda time frame but pre-Miranda?

3. Whether the prosecution failed to present suffi-

cient evidence showing the accused’s predisposition to

commit the crimes charged under the requirements of the

Jacobson decision?

4. Whether the trial court erred in failing to permit

the accused to submit extrinsic evidence of facts and

circumstances of a prior misdemeanor conviction placed

before the jury by the prosecution?

CERTIFICATE OF INTERESTED PARTIES AND

CORPORATE DISCLOSURE STATEMENT

The undersigned counsel on behalf of Petitioner,

BERYLE JOHNSTON, hereby certifies that to the best of

his knowledge and belief, the following is an accurate

listing of all persons and entities with an interest in the

outcome of this case.

Beryle Johnston, Petitioner

c/o Jeff Johnston

P.O. Box 844

Papillion, NE 68046

Jerry Woody

c/o Bruce A. Nants

Counsel of Record

P.O. Box 247871

Orlando, Florida 32854

Hon. Anne C. Conway

United States District Judge

Middle District of Florida

80 N. Hughey Ave.

Orlando, Florida 32801

Cynthia Hawkins Collazo

Assistant U.S. Attorney

Middle District of Florida

80 N. Hughey Ave.

Orlando, Florida 32801

Tamara Phipps

Vickie L. Johnson

Susan Hollis Rothstein

Assistant United States Attorneys

500 Zack Street

Tampa, Florida 33602

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

Certificate of Interested Persons and Corporate Dis-

PRIOR EF or tee eee ii

ee ND. 0s sho ncign ou cc dsb ckanned ec cebea iv

I 6S hs 6 144.05 «b45' 6 64 eh bd CE RaR LAS OSA 1

ER sas SVN Sa ac WEN Mik cid ie oh bao oh we Gas 1

Constitutional and Statutory Provisions ............ 2

ES ME MEE in a on nk dh a GUA. KeKS Gob aoa Reece 2

er OO WUNOUS 5a bse bc'n sc x ych waa tabady 2

ii. Course Proceedings in the Court Below.... 9

iii. Basis for Federal Jurisdiction.............. 11

Reasons for Granting the Writ I ................... 11

Reasons for Granting the Writ II................... 18

a traces C0 Cree ce ss yk ¥esrekeehoiwend 26

iv

TABLE OF AUTHORITIES

Page

CASES

Doyle v. Ohio, 426 U.S. 620, 96 S.Ct. 2240, 49

Eceae OE LISP cick st eiie aac ke kan ene 12, 17, 18

Greer v. Miller, 483 U.S. 764, 107 S.Ct. 3102, 3108

CRED x's sccias oka a Pin CUS NRA a ee med Oda eR ELE OR Sees 14

Jacobson v. United States, 503 U.S. 540, 112 S.Ct.

TDS, AAG Una E7e CRIED. snes cscnss 18, 19, 20, 21

Lindgren v. Lane, 925 F.2d 198 (7th Cir. 1990)........ 14

Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41

A Gag | Sie: pera epee ners Nn oem 13

Sherman v. United States, 356 U.S. 369 (1958) ........ 19

Sorrells v. United States, 287 U.S. 435 (1935) ......... 19

United States v. Aibejeris, 28 F.3d 97 (11th Cir. 1994) .... 23

United States v. Barnes, 622 F.2d 107 (5th Cir. 1980) .... 24

United States v. Carter, 953 F.2d 1449 (5th Cir. 1992) .... 24

United States v. Evans, 924 F.2d 714 (7th Cir. 1991) 20, 22

United States v. Fairchild, 505 F.2d 1378 (5th Cir.

Ge Se Sak eR aks ko ERWARAA EE a 13

SNE + u's bn cl baad ante MERRLAw ae heehee escent 25

United States v. Hollingsworth, 27 F.3d 1196 (7th

RE. | Serra nenrr a Serie a ree Tere 19,. 21

United States v. Mach, 811 F.2d 991 (7th Cir. 1987) .... 25

United States v. Mealy, 851 F.2d 890 (7th Cir. 1988) .... 25

v

TABLE OF AUTHORITIES - Continued

Page

United States v. Mena, 863 F.2d 1522 (11th Cir.

BUUREN AN-55 05 FRRRAEA ESAS CEREAL BARR Eek Cha 12

United States v. Motley, 940 F.2d 1079 (7th Cir.

ROPES: kk 50a $4 es bbe Hk Phe a ee ea Ske 24

United States v. Pandozzi, 878 F.2d 1526 (11th Cir.

SNPS bad veer che Sis £04 SR Osteo Sp eek 25

United States v. Rivera Espinoza, 905 F.2d 156 (7th

Res SPOE 5 544 cWA RaW OS e ey dE WEE CREATES ae kao 20

United States v. Stubbs, 944 F.2d 828 (11th Cir. 1991) .... 13

United States v. Tenorio, 69 F.3d 1103 (11th Cir. Nov.

ls SUE ohn ond ocean kek renee eekevenes 16, 17, 18

eee

+ 0 NORE OIE mame

OPINION BELOW

On February 13, 1996, the United States Court of

Appeals for the Eleventh Circuit Per Curiam Affirmed the

conviction of Beryle Johnston. (Appx A.)

On March 5, 1996 Beryle Johnston filed his Sugges-

tion for Rehearing and Rehearing En Banc. On April 24,

1996 the Eleventh Circuit denied that combined petition.

(Appx B.)

JURISDICTION

Grounds for invoking the jurisdiction of this Court:

i. The judgment of the United States Court of

Appeals for the Eleventh Circuit of which review is now

sought, was entered on February 13, 1996 (Appx A.) and

the Petition for Rehearing, and Suggestion for Rehearing

En Banc was denied on April 24, 1996. (Appx B.)

ii. This petition is timely filed within the prescribed

ninety days from denial of the combined Petition for

Rehearing, Suggestion for Rehearing En Banc, pursuant

to United States Supreme Court Rule 13.4. This Court’s

jurisdiction is invoked under Title 28, United States Code

§ 1354(1).

iii. This petition was returned for correc*ion by the

United States Supreme Court on July 24, 1996 with an

allowance of 60 days for correction and resubmission.

(Appx C.)

CONSTITUTIONAL AND STATUTORY PROVISIONS

Federal Rules of Evidence, §608(b) Specific Instances of

Conduct

Federal Rules of Evidence, §609(a) General Rule

Federal Statutes, Title 18 §1956 (a)(1)

United States Constitutional Provisions, Amendment V

United States Constitutional Provisions, Amendment VI

United States Constitutional Provisions, Amendment XIV

Pursuant to Supreme Court Rule 14.1(f), these constitu-

tional provisions and statutes are quoted verbatim in the

appendix to this Petition.

¢

STATEMENT OF CASE

i. STATEMENT OF THE FACTS.

A Government Sting Operation began in June 1993

when Agents of the Metropolitan Bureau of Investigation

in Orlando, Florida, and the Drug Enforcement Adminis-

tration, began a Money Laundering Investigation

(R7-125-129).

Petitioner, BERYLE JOHNSTON, was a business man

from Papillion, Nebraska. He flew to Orlando on July 7,

1993 and took part in discussions with Jerry Woody and

the undercover agents representing themselves to be

Columbian drug cartel members of the Calli Cartel wish- !

ing to launder two (2) million dollars. Petitioner appeared

willing to engage in a money laundering deal the terms of

ia

which were never accomplished and although the Peti-

tioner did exhibit clear signs of reluctance during the

single meeting. it was Petitioner’s position, throughout

the trial below, that he was not a money launderer on July

7, 1993, or at any other time, and that he was not aware

that he was meeting with anyone for a money laundering

transaction, until he met with undercover agents repre-

senting themselves to be Cartel members. He had arrived

in Orlando to initially negotiate a loan of two (2) million

dollars at a favorable interest rate. (R10-27).

The Undercover Sting Operation began in June 1993

when JERRY WOODY and TERRENCE FURGUS, his

partner, who was acquainted with AL PALACIO, a Confi-

dential Informant, introduced the undercover agents to

FURGUS and WOODY. Specifically, in June 1993, posing

as an agent of the Calli Drug Cartel, Undercover Agent

RUSSELL PERMAUL, met with JERRY WOODY and TER-

RENCE FURGUS, in Orlando, Florida (R7-133; 10-296).

During the first meeting, Permaul told WOODY and

FURGUS that the agent needed to launder Ten Million

Dollars ($10,000,000) which was the proceeds of cocaine

distribution (R7-157). Permaul represented himself to be a

Columbian Drug Trafficker, a member of the Calli Cartel

(R7-139; 10-280).

WOODY jumped at the opportunity to assist Permaul

and both he and FURGUS tried to convince Permaul they

were capable of laundering funds. Both WOODY and

FURGUS stated that they understood the money was

from cocaine proceeds but they were not interested in

where the money came from (R7-157). WOODY made

numerous fantastical claims to the agent in order to con-

vince him of his money laundering abilities. He told

Permaul that for a million dollars, he could become a part

of their “inner-circle” with attorneys from the Bank of

Liechtenstein and that they had pilots and planes to

provide transportation thereto (R8-289). WOODY

explained to Permaul their method of “cleaning” the cur-

rency through foreign banks and returning the funds

through a loan. He offered to launder Permaul’s money

for a ten percent (10%) commission and Twenty-Five

Thousand Dollars ($25,000) expense money (R7-139). At

the conclusion of this meeting, WOODY asked if the

Undercover Agent Permaul had any funds currently in

the United States that needed to be laundered. It was

agreed upon between WOODY, and the Undercover

Agent that Two Million Dollars ($2,000,000) in small

denominations would be collected and turned over to

WOODY to be laundered through WOODY’s alleged

banking contacts. Thus the sting thereafter focused on the

laundering of Two Million Dollars ($2,000,000) in the

United States. WOODY indicated that he would be in

contact with Permaul in the next few days to arrange the

details of this plan (R7-158).

On June 30, 1993, Undercover Agents arranged a

meeting with JERRY WOODY at the Omni Hotel in

Orlando, Florida. WOODY was observed accompanied by

an elderly individual later identified as JOHN VELDER

arriving at the Omni Hotel. VELDER remained in the

lobby while WOODY proceeded to a room to meet with

the Undercover Agents. WOODY then proceeded to dis-

cuss the laundering of Two Million Dollars ($2,000,000)

through his contacts in Nebraska. He then suggested use

of other persons to launder the money WOODY indicated

that Petitioner, BERYLE JOHNSTON, could launder the

Undercover Agent’s money and offer certain land parcels

as collateral until the money was successfully “cleaned”

(R7-201). The agents requested that the deal be made with

Petitioner Johnston.

On July 7, 1993, WOODY and VELDER were fol-

lowed by Undercover Agents to Orlando International

Airport. At the airport, VELDER went inside the airport

terminal and met with Appellant, BERYLE JOHNSTON,

who had arrived on an American Airlines flight from

Omaha, Nebraska (R9-108-109). VELDER and JOHN-

STON then exited the terminal and entered a car driven

by WOODY (R9-110).

At approximately 4:15 p.m., on July 7, 1993, WOODY,

JOHNSTON and VELDER arrived at the Twin Towers

Hotel, in Orlando, as instructed by the Undercover Agent

(R8-243). Undercover Agents met with WOODY, JOHN-

STON and VELDER in the hotel lobby. After a brief

conversation, Undercover Agents invited WOODY and

JOHNSTON to a hotel room. VELDER remained in the

lobby. Once inside the hotel room, WOODY explained to

Undercover Agents how the Two Million Dollars

($2,000,000) was going to be laundered (R8-149). After

some discussions, Appellant stated:

I see some apprehension here, and I, two million

bucks is a lot of money, I understand that. And

that farm probably means more to me than your

two, three millions dollars means to you. Well,

let’s do this. I send you, or I will get to Jerry,

let's not do anything today, o.k.? Because if its a

problem for you — let’s just not do anything.

And I'll get you the legal description and you

can type them, or you type them — you bring the

form to the table...

(R8-262; Transcript at 26). JOHNSTON also had left the

room with WOODY for what amounted to a twenty (20)

minute break (R-281). In the lobby, WOODY stated to

Appellant: “Beryle, this is a big drug cartel. You're not

going to leave because they have men in place...

(R10-100). JOHNSTON and WOODY then returned to the

hotel room.

JOHNSTON and WOODY explained to the Under-

cover Agents that the Two Million Dollars ($2,000,000)

could be laundered by being turned into Two Hundred

($200) and Three Hundred Dollar ($300) denomination

money orders (R8-149).

At the conclusion of the meeting, WOODY, JOHN-

STON and VELDER were apprehended (R8-278-279).

Appellant, BERYLE JOHNSTON, advised an Undercover

Agent that he was in Orlando to negotiate a six percent

interest (6%) loan (R9-160-161). No money was ever

shown to JOHNSTON. No money changed hands, no

laundering occurred. The case against JOHNSTON was

based solely on the single tape recorded meeting and

conversations between JOHNSTON, WOODY and the

undercover agents.

The character of Petitioner, BERYLE JOHNSTON,

became an issue at trial. James W. Langley, a Papillion,

Nebraska, Veterinarian, who had known Petitioner

JOHNSTON for fifteen (15) years, testified that there was

never a question of Petitioner’s integrity or honesty in

the community, and that he had intended to fly with

Johnston to Orlando for the loan negotiations. Petitioner

ee ge "

had a good reputation for truth and veracity (R9-217-221).

John Dinsdale, who also known Petitioner JOHNSTON

for fifteen (15) years and purchased a bank from him,

stated that “Petitioner’s reputation with anybody that |

have dealt with has been above approach” (R9-238).

Harold Young, a Papillion, Nebraska, Real Estate Broker,

who created the Fleetwood Farms Partnership with Peti-

tioner, BERYLE JOHNSTON, testified that Petitioner had

a good reputation for truth, veracity, honesty and square

dealings (R9-200). The evidence presented at trial

strongly suggested that Appellant JOHNSTON, a

respected member of his Nebraska business community,

had been set up by a cash starved mountebank named

JERRY WOODY. In fact, the Government adduced no

evidence at the trial below that there was any contact

between BERYLE JOHNSTON and WOODY before

VELDER and WOODY picked up Appellant at the

Orlando Airport on July 7, 1993, except one taped conver-

sation involving WOODY, Appellant JOHNSTON, and

the agents (R8-262).

During the early part of the investigation, WOODY

made numerous fantastical claims in pursuit of his

Twenty Five Thousand Dollars ($25,000) in “expense

money” from Permaul (R7-188, 8-231). WOODY initially

stated that a plane would leave and take the money from

Bogota to Liechtenstein. WOODY stated that the night

before one meeting he had laundered Ten Million Dollars

($10,000,000) in Taiwan (R8-333). WOODY stated that one

such plane had crashed in the past with Two and One-

half Million Dollars. ($2,500,000) of gold on it, off Belize,

(R7-165 & 265; R8-307; R8-320). While claiming to be a

wealthy man with access to Swiss Bank Accounts, busi-

ness in the Bahamas (R8-294,299), dealings with General

Noriega in Panama (R8-328), and an inter-circle of law-

yers and international transportation, and being in the

process of obtaining Sixty Seven Million Dollars

($67,000,000) in Italian Lire (R8-310), WOODY, the brag-

gadocio, was apparently living off VELDER’s girlfriend’s

credit cards (R9-165). While WOODY claimed Appellant

JOHNSTON had purchased eighteen (18) 1965 Mustangs

from him, this was untrue (R7-169-170; 9-35). While

WOODY claimed Appellant JOHNSTON owned his own

planes, Appellant arrived on a commercial flight (R9-5).

WOODY emphasized to Permaul that he did not want

FURGUS to know what he was doing (R7-204), and stated

he could “get the Rambo People after Permaul” if neces-

sary (R8-305).

Given the nature of WOODY’s numerous fantastical

claims, his constant averment “my word is my bible”

should have been viewed with considerable skepticism

(R7-204) by the agents conducting the investigation.

For his part, JOHN VELDER, who made the initial

contact with Appellant, BERYLE JOHNSTON, and was

acquitted of charges stemming from the arrest, on July 7,

1993, testified that WOODY told him that he had met

some people who inherited Twenty Million Dollars

($20,000,000). VELDER was never present at the earlier

meetings between WOODY, FURGUS and Permaul

(R8-290). VELDER stated WOODY “couldn’t afford to

buy his cigarettes” (R9-289). VELDER added that “JERRY

WOODY doesn’t have any money. He has never had any

money that I know of for the last ten (10) years.”

(R9-291). Even Agent Permaul conceded that WOODY

never paid for his cheap hotel rooms (R8-293; 331) drove

a older model Mercedes, which was not his (R8-306), and

could not pay his own telephone bill (R8-310). VELDER

testified that WOODY had him contact Petitioner

BERYLE JOHNSTON, rather than with Woody himself, to

see whether JOHNSTON was interested in borrowing the

money (R9-276; 280-281). VELDER never heard the con-

versations WOODY had with Permaul, and VELDER was,

in fact, acquitted of charges stemming from the same

’ Indictment as Petitioner, BERYLE JOHNSTON (R9-281).

Nothing in the investigation indicated JERRY

WOODY had ever had any contact with Petitioner,

BERYLE JOHNSTON, before July 7, 1993, (R8-283). How-

ever, to impeach Appellant’s credibility at trial, the Gov-

ernment resorted to two tactics. First, it elicited testimony

as to Appellant’s post-arrest silence (R98-134). Second,

the Government brought to the jury’s attention the fact

that Appellant had been previously convicted of a Misde-

meanor, “making a false statement to the United States

Department of Education” (R10-205-209). See, also,

(R9-22; 9-246; 9-259). In the former, the District Court

denied Appellant’s motion for a mistrial (R9-157). In the

latter, the District Court denied Appellant an opportunity

to explain the circumstances surrounding a minor Misde-

meanor (R10-209) involving a conflict of interest with a

bank at which he was an Officer.

ii. Course of the Proceedings in the Court Below.

Petitioner, BERYLE JOHNSTON, was named in both

counts of a two count indictment returned by the Grand

10

Jury in the Middle District of Florida at Orlando, on

August 5, 1993.

Count I of the Indictment charges that between on

and about June, 1993 and on or about July 7, 1993, in

Orange County, Florida, BERYLE JOHNSTON, JERRY

WOODY, TERRENCE FURGUS AND JOHN VELDER,

conspired to commit money laundering in violation of 18

U.S.C. 1956(a)(3) and (2).

Count II of the Indictment charged that on or about

July 7, 1993 in Orange County, Florida BERYLE JOHN-

STON, JERRY WOODY AND JOHN VELDER, attempted

to commit money laundering in violation of 18 U.S.C.

1956(a)(3)(B) and (2). (R1-29).

A Jury Trial proceeding as to Petitioner, BERYLE

JOHNSTON, commenced on December 1, 1993 and on

December 7, 1993, BERYLE JOHNSTON, was found

guilty as to Counts I and II. (R2-140). On February 28,

1994, the Petitioner was sentenced to seventy eight (78)

months imprisonment. (R-12). An appeal was thereinafter

instituted in the 11th Circuit Court of Appeals. Appel-

lant’s Initial Brief and Reply Brief were then filed. Oral

Argument was heard on February 2, 1996 and the deci-

sion of the jury and sentence imposed by the Trial Court

was “Per Curiam Affirmed” on February 13, 1996 by the

11th Circuit Court of appeals. Thereafter the Petitioner

filed a timely Petition for Rehearing and Suggestion of En

Banc Consideration. The 11th Circuit Court of Appeals

accepted the Petition as timely filed and ruled on April

24, 1996 that the Petition for rehearing be denied and the

Suggestion of Rehearing En Banc be denied. Therefore

the Petitioner for Writ of Certiorari herein follows.

11

iii. Basis for Federal Jurisdiction.

Jurisdiction before the Eleventh Circuit was invoked

pursuant to 28 U.S.C. § 1291. This petition follows pur-

suant to 28 U.S.C. § 1254(1).

¢

I. REASONS FOR GRANTING WRIT

It is the position of the Petitioner/ Accused, BERYLE

JOHNSTON, that the prosecution improperly placed evi-

dence of his “silence” at the time of his arrest and post-

arrest unfairly, improperly and in violation of his due

process rights under the 5th, 6th, and 14th Amendments

to the United States Constitution before the jury as evi-

dence of Johnston’s guilt.

Counsel for the prosecution, while conducting the

direct examination of its witness, Special Agent Stephen

Collins, directly questioned Collins on the silence of

BERYLE JOHNSTON immediately after he was taken into

custody and arrested by DEA Agents. (R9-134). Defense

counsel immediately moved for a mistrial (R9-155). The

District Court denied the mistrial motion. (R9-157). The

error was further compounded by the prosecution’s

cross-examination of BERYLE JOHNSTON on this point

and again revisited by the prosecution in its closing argu-

ment to the jury. (R9-285-286; R10-204). The error was

doubly prejudicial because, given the closeness of the

evidence in this Record and the questions of credibility

involved, the prejudicial testimony as to Appellant’s

post-arrest silence may have indeed been seen by the jury

as evidence of guilt.

12

The District Court erred in not granting a mistrial.

This was not a case of inadvertent error by the prosecu-

tion nor mistake by the witress- The prosecution point-

edly and by leading question/statement to the agent

asked whether after Mr. JOHNSTON was taken into cus-

tody by the DEA Agents and they identified themselves

to him, he said “Thank God, you’re here”. The Agent

advised the prosecution in response that Mr. JOHNSTON

said no such thing, in fact, he made no mention what-

soever of the laundering scheme or the drug dealers.

(R9-154). The obvious purpose of this scenario of ques-

tion and answer was to point out emphatically that an

otherwise innocent person would certainly have made

mention to the agents of the criminal nature of the meet-

ing and would not have remained silent on this issue.

The prosecutor later cross-examined the Defendant,

JOHNSTON, on this point and made significant mention

of it in closing argument (R9-285-286), R10-204).

It is clear that the prosecutor’s purpose and intent in

focusing on the accused’s silence after being taken into

custody was to invite the jury to infer guilt from the

silence. United States v. Mena, 863 F.2d 1522 (11th Cir.

1989). In Doyle v. Ohio, 426 U.S. 620, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976), the United States Supreme Court ruled

that the prosecution committed reversible error by cross-

examining a Defendant on his silence subsequent to his

arrest and after Miranda warnings were read. The Court

reasoned that silence in the wake of post-arrest and Mir-

anda warnings may be only an exercise of an individual’s

constitutional right and no evidence of guilt. The Court

stated:

13

[2-6] Despite the importance of cross-examina-

tion, we have concluded that the Miranda deci-

sion compels rejection of the State’s position.

The warnings mandated by that case, as a pro-

phylactic means of safeguarding Fifth Amend-

ment Rights, see Michigan v. Tucker, 417 U.S. 433,

443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182

(1974), require that a person taken into custody

be advised immediately that he has the right to

remain silent, that anything he says may be used

against him, and that he has a right to retain or

appoint counsel before submitting to interroga-

tion. Silence in the wake of these warnings may

be nothing more than the arrestee’s exercise of

these Miranda rights. Thus, every post-arrest

silence is insolubly ambiguous because of what

the State is required to advise the person

arrested .. .

The Supreme Court reiterated their holding that use of an

accused person’s post-arrest silence at the time of arrest

and after receiving Miranda warnings, violated the Due

Process Clause of the Fourteenth Amendment. See also,

United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975).

In United States v. Stubbs, 944 F.2d 828, 835 (11th Cir.

1991), this Court addressed the issue of a Defendant’s

post-arrest silence and the proscription of cross-examin-

ing on that particular issue. This Court stated:

[7] While a single comment alone may some-

times constitute a Doyle violation, the Supreme

Court’s opinion in Greer makes clear that a sin-

gle mention does not automatically suffice to

violate defendant's rights when the government

does not specifically and expressly attempt to

use, as was attempted in Doyle and in Greer, the

improper comment to impeach the defendant.

14

See Lindgren v. Lane, 925 F.2d 198, 201 (7th Cir.

1991). (“As explained in Greer v. Miller, it is the

use of an accused’s silence against him at trial

by way of specific inquiry or impeachment that

forms the basis for a violation of the Fourteenth

Amendment.”). (Emphasis added). As was the

case in Greer, the prosecutor here “was not

allowed to undertake impeachment on, or per-

mitted to call attention to [defendant's] silence.”

Greer, 483 U.S. at 764, 107 S.Ct. at 3108 (citation

omitted). The prosecution made no “specific

inquiry or argument” about defendant’s post-

arrest silence. Id. Accordingly, we conclude

there was no Doyle violation in the case. . .

At the time of BERYLE JOHNSTON’S arrest, he was in

unfamiliar territory and in custody of Government

Agents having engaged in a discussion of criminal law

violations with other agents representing themselves to

be dangerous drug smugglers of a Colombian Cartel. His

right to remain silent at the time of arrest had attached.

Clearly, Miranda warnings had not been given. But his

right against such incrimination had attached and his

silence should not have been used to draw inferences of

possible guilt! In this case, the prosecution violated the

Defendant’s right when the prosecutor pointedly

addressed the issue with Agent Collins, re-addressed the

issue on cross-examination of BERYLE JOHNSTON and

discussed it significantly in closing argument. The pros-

ecution’s need to effectively cross-examine a witness did

not outweigh the undue prejudice and confusion which

attached by focusing on the Defendant's silence at the

time of arrest.

15

We believe the Trial Court erred in permitting the

prosecution to illicit from Agent Collins the fact that

Beryle Johnston remained silent and “did not say Thank

God you are here” to the agents after the accused was

arrested and taken into custody and agents identified

themselves as law enforcement officers.

The following excerpt of Supervising Agent Collins’

testimony at trial page 154 of transcript... .

“A. Well, the meeting is concluding and the agents

are walking towards the door of the hotel room with Mr.

Johnston and Mr. Woody. When the door is opened, there

are several agents outside the door. We then enter the

room, and actually physically take Mr. Johnston and Mr.

Woody into custody.

Q. And as the agents enter the room, are you there

to hear what they’re saying?

A. Yes.

Q. Do these agents identify themselves?

A. Yes. As police officers. They’re under arrest.

They all had identifying, what we call a raid jacket. It’s a

wind breaker with a badge and police written across the

front.

Q. And at that point, do you hear defendant John-

ston indicate that, Thank God you’re here to rescue me,

something to that, of that vein?

A. No.”

Later on page 158 of transcript Agent Collins admits

he gives Johnston Miranda Warning after identifying

16

himself as a government agent within minutes in the

hotel room.

“Q. Now, Special Agent Collins, subsequent to the —

well, let’s go back to July 7th. At some point, you actually

approach the Defendant, Beryle Johnston; correct?

A: Te oe

Q. And how long is that after the initial sort of

entry in to the room by the other agents?

A. Not very long after. A few minutes.

Q. And what do you say to Mr. Johnston?

A. I identify myself as a special agent with D.E.A.

Q. Anything else?

A. Yes. I advised him that he was under arrest for

violation of law. Money Laundering violation. I advised

him of his rights.

Q. Now when you say rights, what do you mean?

A. His, what we refer to as his Miranda Warnings.

The attack on Johnston’s silence at the point of his

arrest by the prosecution we suggest is violative of John-

ston’s constitutional due process rights and the above

questions by the prosecution to Agent Collins also vio-

lates Johnston's constitutional right to remain silent.

In United States v. Tenorio, 69 F.3d 1103 (11th Cir. Nov.

29, 1995) the Court held it was error for the prosecution

to attack the accused on his post-arrest silence when in

closing argument the prosecutor stated that an innocent

courier would have given an explanation at the time of |

iinet

17

discovery of the drugs and not have waited 22 hours after

his arrest to come up with a story.

The Court determined that the prosecution failed to

properly word its inquiry to cover only the time frame

prior to Miranda warnings thereby clearly violating the

dictates of Doyle v. Ohio. The Court reversed the convic-

tion finding the error to be harmful.

In Doyle v. Ohio, 426 U.S. 620, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976) this Court ruled that the prosecution

committed reversible error by cross-examining a defen-

dant on his post-arrest silence after “Miranda” warnings

were read. We believe that it is now time for this Court to

address and determine whether post-arrest silence prior

to formal reading cf “Miranda” warning should likewise

be condemned as an inappropriate comment on an

accused person’s right to remain silent in the face of

actual and physical arrest. We suggest that this issue is a

significant one which has far-reaching and material

implications. We would note that most recently the 11th

Circuit Court of appeals addressed the issue of the pros-

ecution’s cross-examination of an accused on his silence

after arrest. United States v. Tenorio, supra. The Court

struggled with the problem of trying to determine

whether the prosecutor’s questions and/or statements by

implication commented not only on the accused’s post-

arrest and pre-Miranda warnings silence but also on his

post-Miranda silence. The Court concluded that the ques-

tions of the prosecution by clear implication unfairly and

improperly covered the “Post-Miranda” time frame

thereby prejudicing the accused. We suggest the time has

arrived for this Court to expand Doyle v. Ohio doctrine to

18

include the post-arrest and pre-Miranda time frame

period.

We believe the rationale laid down in Doyle, supra,

making it a violation of due process to comment on an

accused person's silence after arrest and after “Miranda”

Warnings applies equally to an accused person's

“silence” at or after arrest and prior to formal reading of

one’s “Miranda” warnings. In today’s enlightened age of

mass communication and television trials and television

shows of police operations and arrests, i.e., “America’s

Most Wanted”, “Hard Copy” and “COPS”, is it not

believable and likely that persons arrested and being

taken into custody are unaware of their right and right to

consult with a lawyer before saying anything to the

police. We believe that there exists no fundamental rea-

son to make a distinction between pre-Miranda and

post-Miranda silence after arrest. The difficulties which

arose for the 11th Circuit Court of Appeal in Tenorio,

supra, could clearly be avoided by a ruling from this

Court that one’s post-arrest silence before or after formal

reading of Miranda warnings is not a proper subject for

cross-examination or comment by the prosecution.

Il. REASONS FOR GRANTING WRIT

It is the position of the Petitioner/ Accused, BERYLE

JOHNSTON, he was entrapped into violating the law. The

prosecution failed to present sufficient evidence of his

“predisposition” to commit the crime of money launder-

ing under Title 18 U.S.C. 1956 as pronounced by the

Supreme Court in Jacobson v. United States, 503 U.S. 540,

112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). And the Trial

19

Court's failure to permit the Petitioner to present evi-

dence of a mitigating nature of the lone prior misde-

meanor conviction of Beryle Johnston characterized as

“Giving False Information to the Department of Educa-

tion” was clear error and harmful especially in light of

the significance of one’s prior criminal record on the issue

of “pre-disposition” to commit the crime charged.

We suggest that anytime the government through its

agents or law enforcement authorities conduct what is

known as a “sting operation” or an undercover action

where government personnel portray themselves as crim-

inals in order to induce or flush out criminal activity by

others the issue of entrapment is necessarily raised. We

believe the Jacobson, supra, decision by this Court and the

later opinion of the 7th Circuit Court of Appeals in United

States v. Hollingsworth, 27 F.3d 1196 (7th Cir 1994) stand

for the belief that a defendant who raises a colorable

defense of entrapment requires the government to prove

beyond a reasonable doubt that the accused was in fact

not entrapped and was therefore predisposed to commit

the crime charged.

The entrapment defense is based on the premise that

“the function of law enforcement officials . . . does not

include the manufacturing of crime”. Sherman v. United

States, 356 U.S. 369, 372 (1958). Accordingly, government

agents may not implant in the mind of an innocent per-

son the disposition to commit the alleged offense and

induce its commission in order that they may prosecute.

Sorrells v. United States, 287 U.S. 435, 442 (1932).

The defense of entrapment is designed to “prevent

the police from turning a law abiding person into a

20

criminal”. United States v. Evans, 924 F.2d 714, 717 (7th

Cir. 1991).

Entrapment is established if: (1) the defendant shows

that he was induced to commit the crime; and (2) the

government cannot prove, beyond a reasonable doubt,

that the defendant was disposed to commit the crime

prior to being approached by the government or the

government’s agents. Jacobson v. United States, supra. On

the present record, there is substantial evidence of

inducement presented by the government's activities.

Hence, the sole issue in this case is Petitioner BERYLE

JOHNSTON'S predisposition. See Jacobson, supra, pages

1540-41 & 42. “When government does not dispute

inducement, the sole issue is whether the government

carries its burden on predisposition.” The burden was on

the government below to establish beyond a reasonable

doubt JOHNSTON’S predisposition to engage in money

laundering. Jacobson, supra, page 1540.

In determining whether a defendant was predisposed

to commit an offense, the Courts have relied on factors

such as an overall assessment of the defendant's charac-

ter, evidence of prior offenses, an apparent reluctance to

commit the crime, and the nature of the government's

inducement. United States v. Rivera Espinoza, 905 F.2d 156,

158 (7th Cir. 1990). The first factor here weighs heavily

against the finding of a predisposition. The government

presented no evidence below that JOHNSTON had ever

been involved in, arrested for, or convicted of any money

laundering offense. There is no question that the Govern-

ment initiated negotiations to launder money. It was not

even investigating JOHNSTON when the undercover

21

operation was initiated . . . it had no information that

JOHNSTON was involved in money laundering.

Next, the government did not present sufficient evi-

dence to support a finding that JOHNSTON was predis-

posed to commit money laundering. The question below

was whether JOHNSTON was or was not the type of

person “who, if left to his own devices, probably would

never have run afoul of the law”. Hollingsworth, 27 F.3d at

1199, quoting Jacobson, supra, at 1543. The inquiry is not

whether JOHNSTON ultimately became an active and

willing participant in any money laundering but whether

he was predisposed to be involved regardless of govern-

ment intervention. Hollingsworth, 27 F.3d at 1202. The

words and behavior at the July 7 meeting - behavior that

is fully documented by the government’s own tape

exhibits — belies Agent Permaul’s testimony that JOHN-

STON was easily amenable to arranging money launder-

ing. The tapes should have raised a reasonable doubt in

the mind of a rational jury concerning what JOHNSTON

may have said or done. The statements do not reasonably

appear to be those of an experienced money launderer

who already had strong connections and who was

already interested in pursuing transactions. Rather, the

statements appear to be those of a confused and ambiva-

lent person. (R9-203-205).

Facts about the July 7th conversation raise reasonable

doubts concerning JOHNSTON’s predisposition. First,

the conversations show JOHNSTON was clearly unable

or unwilling to assign his actual interest in Fleetwood

Farms. But assuming arguendo JOHNSTON was viewed

as ultimately becoming an active participant in money

22

laundering, that fact alone would not support a conclu-

sion that he was predisposed to participate in the crime

absent additional evidence of prior criminal activities of a

similar nature. United States v. Evans, 924 F.2d 714, 716

(7th Cir. 1991), the Court stated: If Defendant “was

indeed entrapped, it is irrelevant that the entrapment was

so effective as to make him not only a willing but an

eager participant.” Court deserves a second and thorough

look at the entrapment issue presented. Petitioner John-

ston never laundered anything in this case. He never

received anything to launder. The agents running the

sting operation had no previous knowledge of Beryle

Johnston. They relied upon a “super” liar totally unbe-

lievable charlatan, Jerry Woody, to work his magic and

somehow coax Johnston to come to a “one time meeting”

with the undercover agents which lead to Johnston’s

arrest herein.

During the video taped meeting with undercover

agents, Permaul and Collozzo, acting as drug cartel mem-

bers and Jerry Woody, Beryle Johnston showed apparent

willingness to launder proceeds although he certainly

attempted to end the meeting half-way through by sug-

gesting that each side go their own separate ways and

meet later and not rush it. The agents of course pro-

ceeded onward, their goal was to make their case. Inter-

estingly the agents as part of this operation were

requiring Johnston to give them collateral (an assignment

of his real estate interest) for the proceeds he was sup-

pose to launder. Why would a cartel want an invalid

assignment for an illegal venture? They certainly could

not prevail in a court of law if Johnston stole or lost their

money? A contract to do an illegal thing is certainly not

23

enforceable. Clearly, only a novice midwestern, family

man, and small businessman like Beryle Johnston would

not recognize the government traps. This was a prepos-

terous and unnecessary investigation and it failed to

uncover real criminal wrongdoings.

This case is of great or exceptional importance

because of the need for courts to examine closely the use

of government “sting” type operations to ferret out crimi-

nal activity and to fairly balance that need against the

potential of ensnaring an otherwise innocent individual.

We believe the Courts should be very skeptical of permit-

ting a conviction to be upheld on a single conversation of

the Petitioner’s supposed intentions without the actual

act.

In United States v. Aibejeris, 28 F.3d 97 (11th Cir. 1994)

the Court concluded that it is not a precondition to con-

ducting an investigation of the accused that the govern-

ment have evidence of that person’s predisposition to

violate the particular law. But the Court concluded that

government had to prove beyond a reasonable doubt at

trial that the accused was actually predisposed to commit

the underlying crime prior to its commission and absent

the government’s role in assisting such commission.

The Circuit Court of Appeal finding in favor of pre-

disposition on the accused part noted that Aibejeris had

been previously convicted of money laundering prior to

government intervention. And also noted that there was

direct testimony of government witness, Carmen Cruz, if

believed was that accused had previously engaged in

money laundering activity.

24

In Johnston’s case the facts are strikingly different.

He has no conviction of a crime similar to money laun-

dering. The evidence failed to show any past criminal

activity by Johnston except for the misdemeanor charge

of “false statement to the Department of Education”. The

evidence at trial showed Johnston to be the owner of a

small finance company with his son Jeff and to have a

good reputation for honesty and fair dealing with the

community at large. His one mistake in case was taking a

plane trip to Orlando and showing up for the video taped

meeting. We believe that it was clear error by the Trial

Court in failing to permit the accused to present mitigat-

ing evidence surrounding his conviction for a Misde-

meanor of “making a false statement to the U.S.

Department of Education”.

The Court in ruling that Petitioner, BERYLE JOHN-

STON, would not be permitted to discuss the charge, plea

agreement and/or judgment and sentence not to intro-

duce the pertinent plea agreement and sentence docu-

ments, and to explore his overall involvement or his lack

of involvement In the crime charged, relied upon Federal

Rules of Evidence 608 and 609 pertaining to impeachment

by prior conviction. It is suggested that Rule 609, limiting

the admission of prior convictions and its details, is

meant to protect the Defendant from any unfair prejudice

which might arise from the submission of such evidence

to a jury by the prosecution. United States v. Barnes, 622

F.2d 107 (5th Cir. 1980); United States v. Carter, 953 F.2d

1449 (5th Cir. 1992); and United States v. Motley, 940 F.2d

1079 (7th Cir. 1991).

Thus rule of evidence was never intended to be used

to prevent a criminal defendant, whose conviction is

25

already before the jury through Government cross-exam-

ination, from being able to explain its circumstances in

order to mitigate the effect on the jury that the Defen-

dant’s prior conviction would have.

In United States v. Pandozzi, 878 F.2d 1526, 1533 (11th

Cir. 1989), the trial court was upheld in preventing a

cross-examination into a prior conviction of a government

witness (not the Defendant) about the fact that the prior

conviction for sexual assault involved a child victim. The

Court in so ruling, considered the fact that the prior

conviction excluding the fact that the alleged victim of the

sexual assault conviction was a child. The Court noted

and considered that Rule 609(a)(1), Federal Rules of Evi-

dence, permits the Court to exclude evidence of a witness

prior conviction only if it is prejudicial to the Defendant,

not if it is prejudicial to the witness. Therefore, clearly,

this Rule is meant to protect the accused against unfair

prejudice.

Also, numerous cases have permitted the prosecution

to place before the jury the facts and circumstances sur-

rounding a cooperating witness conviction and plea

agreement even prior to impeachment of the witness by

the defense on the theory that a party is permitted to

present reasonable background information relative to a

witness in order that the trier of fact get a complete

picture of its witness. United States v. Mealy, 851 F.2d 890

(7th Cir. 1988); United States v. Mach, 811 F.2d 991 (7th Cir.

1987) and United States v. Hilltop, 772 F.2d 783, 787 (11th

Cir. 1985).

Similarly, the jury in Petitioner BERYLE JOHN-

STON’S case was left with the erroneous and false

26

impression that the prior conviction involved bank fraud,

a potentially serious matter, and the Court's failure to

permit rehabilitation through direct examination of

Defendant, BERYLE JOHNSTON, on the circumstances of

his prior conviction for a misdemeanor and the Court's

failure to permit him to introduce the accompanying plea

agreement, judgment and sentence was harmful error.

The Court should consider that the credibility of Peti-

tioner, BERYLE JOHNSTON, was critical to his defense

herein. .

Finally, the jury may have been left with the erro-

neous and false impression that Johnston was “predis-

posed” to commit the charged crimes, which prejudiced

his entrapment defense. A full understanding by the jury

of the circumstances of the charge and conviction would

have mitigated it’s effect on Johnston.

Neither the Appellant or Appellee found a case fed-

erally direct on point. We believe that this issue is of great

importance in guiding future trial courts on this issue of

limiting the accused to present mitigation evidence relat-

ing a prior criminal conviction placed before the jury by

the prosecution. We believe in this case that the trial court

abused its discretion especially in light of the entrapment

defense presented to the jury and jury instructions

thereon regarding predisposition.

¢

CONCLUSION

In conclusion, the Petitioner respectfully requests

that this Honorable Court accept jurisdiction of his cause

and the issues stated herein. It is our belief that the

27

Petitioner has been denied due process of law by the

prosecution’s attack on the Petitioner’s post-arrest silence

as evidences of his guilt and for failure of the prosecution

to prove beyond a reasonable doubt by competent evi-

dence that the Petitioner was predisposed to commit the

crimes charged. We request that this Court reverse the

conviction and remand for a new trial.

Respectfully submitted, this 20th

day of September, 1996.

F. WesLey BLANKNER, Jr., Esq.

217 E. Ivanhoe Blvd., North

Orlando, Florida 32804

(407) 894-0341

Fl. Bar No.: 241784

Attorney for the Petitioner

App. i

INDEX TO APPENDIX

Decision U.S. District Court of

od eee ERE TOR POE PEPE Ae Mee Appendix A, App. 1

Decision on Petition For Rehearing and Sugges-

tion of Rehearing En Banc....... Appendix B, App. 3

Letter U.S. Supreme Court returning original peti-

tion and granting 60 days to correct and resub-

WE ss on eed ecane nn NbCER EROS RE WRS Appendix C, App. 5

Constitutional and Statutory Provisions

MOON 6S Sie cin euaccneeunces Appendix D, App. 7

pe

me

oe

*

‘

aie

App. 1

APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-2273

Non-Argument Calendar

D. C. Docket No. 93-130-CR-ORL-22

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERYLE JOHNSTON;

JERRY WOODY,

Defendants-Appellants.

Appeals from the United States District Court

for the Middle District of Florida

(Filed February 13, 1996)

Before ANDERSON and BLACK, Circuit Judges, and

HENDERSON, Senior Circuit Judge.

PER CURIAM:

AFFIRMED. See 11th Circuit Rule 36-1.

App. 2

Judgment Entered: February 13, 1996

For the Court: Miguel J. Cortez,

Clerk

By: /s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: 5/7/96

App. 3

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-2273

UNITED STATES OF AMERICA,

versus

Plaintiff-Appellee, -

BERYLE JOHNSTON;

JERRY WOODY,

Defendants-Appellants.

On Appeal from the United States District Court

for the Middle District of Florida

(Filed April 24, 1996)

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC

(Opinion

, 11th Cir, 19, __F.2d__).

Before: ANDERSON and BLACK, Circuit Judges, and

HENDERSON, Senior Circuit Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

App. 4

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s)

of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ R. Lanier Anderson III

UNITED STATES CIRCUIT JUDGE

App. 5

APPENDIX C

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

WILLIAM K. SUTER AREA CODE 202

CLERK OF THE COURT 479-3011

July 24, 1996

F. Wesley Blankner Jr.

217 East Ivanhoe Blvd. North

Orlando, FL 32804-6486

RE: Johnston v. United States

Dear Mr. Blankner:

The above-entitled petition for writ of certiorari was

received July 24, 1996. The papers are returned for the

following reason(s):

No motion for leave to proceed in forma pau-

peris, signed by the petitioner or by counsel, is

attached. Rules 33.2 and 39. The motion must be

signed.

No notarized affidavit or declaration of indi-

gency is attached. Rule 39. You may use the

enclosed form.

The petition fails to comply with the content

requirements of Rule 14, in that the petition

does not contain:

The questions presented for review. Rule

14.1(a).

Please correct and resubmit as soon as possible.

Unless the petition is received by this Office in

corrected form within 60 days of the date of this

letter; the petition will not be filed. Rule 14.5.

App. 6

A copy of the corrected petition must be served

on opposing counsel.

You must provide an original and 10 copies of

your petition for a writ of certiorari and motion

for leave to proceed in forma pauperis. Rule

12.2.

Sincerely,

William K. Suter, Clerk

By: /s/ Troy D. Cahill

Troy D. Cahill

(202) 479-3044

Enclosures

App. 7

APPENDIX D

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

FEDERAL RULES OF EVIDENCE

§608(b) Specific instances of conduct.

Specific instances of the conduct of a witness, for the

purpose of attacking or supporting the witness’ cred-

ibility, other than conviction of crime as provided in Rule

609, may not be proved by extrinsic evidence. They may,

however, in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning the witness’

character for truthfulness or untruthfulness, or (2) con-

cerning the character for truthfulness or untruthfulness of

another witness as to which character the witness being

cross-examined has testified.

FEDERAL RULES OF EVIDENCE

§609(a) General rule.

For the purpose of attacking the credibility of a wit-

ness, evidence that the witness has been convicted of a

crime shall be admitted if elicited from the witness or

established by public record during cross-examination

but only if the crime (1) was punishable by death or

imprisonment in excess of one year under the law under

which the witness was convicted, and the court deter-

mines that the probative value of admitting this evidence

outweighs its prejudicial effect to the defendant, or (2)

involved dishonesty or false statement, regardless of the

punishment.

App. 8

FEDERAL STATUTES

Title 18 §1956- (a)(1)

Whoever, knowing that the property involved in a

financial transaction represents the proceeds of some

form of unlawful activity, conducts or attempts to con-

duct such a financial transaction which in fact involves

the proceeds of specified unlawful activity -

(A)(i) with the intent to promote the carrying on of

specified unlawful activity; or

(3) Whoever, with the intent -

(A) to promote the carrying on of specified

unlawful activity;

(B) to conceal or disguise the nature, location,

source, ownership, or control of property

believed to be the proceeds of specified unlaw-

ful activity; or

(C) to avoid a transaction reporting require-

ment under State or Federal law,

conducts or attempts to conduct a financial transaction

involving property represented by a law enforcement

officer to be the proceeds of specified unlawful activity,

or property used to conduct or facilitate specified unlaw-

ful activity, shall be fined under this title or imprisoned

for not more than 20 years, or both. For purposes of this

paragraph, the term “represented” means any representa-

tion made by a law enforcement officer or by another

person at the direction of, or with the approval of, a

Federal official authorized to investigate or prosecute

violations of this section.

App. 9

U.S. CONSTITUTIONAL PROVISIONS

5th AMENDMENT

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment 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 offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law, nor shall private property be taken for public use,

without just compensation.

U.S. CONSTITUTIONAL PROVISIONS

6th AMENDMENT

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State or district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation, to be confronted with the wit-

nesses against him; to have compulsory process for

obtaining witnesses against him; to have compulsory pro-

cess for obtaining witnesses in his favor, and to have the

assistance of Counsel for his defense.

App. 10

U.S. CONSTITUTIONAL PROVISIONS

14th AMENDMENT

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges and immunities of the citizens of the

United States; nor shall any state deprive any person of

life, liberty or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

OE