Petition for Writ of Certiorari — Shoffeitt v. United States

Supreme Court, U.S.

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951806 MAR 7 199%

OFFICE OF THE CLERK

No, 95-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

JOHN HENRY SHOFFEITT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a writ of Certiorari

to the United States Court of

Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Submitted By

John Henry Shoffeitt, Pro se

Reg. No. 43933-019

P.O. Box 150160

Lakewood Station

Atlanta, Georgia 30315

(i)

QUESTIONS PRESENTED

1. Does this Court's ruling in Cox vs. Louisiana, 379 US

559 and Raley vs. Ohio, 360 US 423 hold for the proposi-

tion that only prosecuting government could mislead the

defendant as to the illegality of his conduct to warrant a

defense of entrapment by estopple ?

2. Should a defendant be entitled to separate instructions

specifically charging the jury on his theory of defense, when

his theory of defense has a legal and evidentiary foundation?

3. Can a defendant rely on the theory of entrapment by

estopple when State Officials and Federal Appeals Court's

misinterpreting of federal laws could have mislead the

defendant to believe in good faith that his conduct was not

against any laws of the United States, until their interpreta-

tions have been explicitly changed by a ruling from this

Court, to warrant requested jury instructions on his theory of

defense ?

(ii)

1. Cathy Morris Alterman, Attorney for Appellant;

2. Janis Gordon, Assistant United States Attorney;

3. Bruce S. Harvey, Attorney for Appellant;

4. Honorable William C. O'Kelley, Judge, United States

District Court;

5. Douglas McDonald, Trial attorney for Appellant;

4 > rer en pg gmeeeme REEDS resrey ape mee a

6. John Henry Shoffeitt, Petitioner;

7. United States of America.

ee

John Henry Shoffeitt, Pro se

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Statement of Relevant Facts ........... 0... 3,4

Finding of the Appeals Court........................ 4,5

REASONS FOR GRANTING THE WRIT... 5

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(iv )

TABLE OF AUTHORITIES

Page(s)

Beecham vs. United States,

eo Rel be ge 0 re te eon are 5,7

Cox vs. Louisiana,

es EE fs Gr vba kee nee dod wee 3,5

Dickerson vs. New- Banner Institute,

ee ED io pk oo nie ve en Sees a eae 8

Perez vs. United States,

ey ae Ee Ce: CO, SOO) i nie ow ne XR Ss Hs )

Raley vs. Ohio,

ee MD > as ss ab ues ta ih PL Oe 3,5

United States vs. Albertini,

830 F. 2d 985 (9th. Cir. 1987) ............... 6,7

United States vs Bruscantini,

rR oe ks Se} ) re ~ Tae |

United States vs. Edwards,

ee ae Gee ee Oe PE ck chases ee ues 6

United States vs. Geyler,

Dak i, ae Le ee GE, BRD) ccc wweccssceees 6

United States vs. Silverman,

(bw ER Fhb) Re a! Rees 9

United States vs. Swanson,

Oy F. 20 90 Ge Ce ESI) nc cc ccc ceed 6,7

eS 0 EE ore ee ee ae a ae a elie ne 8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

No. 95

JOHN HENRY SHOFFEITT,

Petitioner,

VS.

UNITED STATES OF AMERICA

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

Petition For A Writ Of Certiorari

OPINION BELOW

The decision of the court of appeals in Shoffeitt vs. United

States, (App. A, pp. 1a-2a, infra) is not reported. Petition

for rehearing denied, (App. B. pp. 1).

JURISDICTION

The decision of the court of appeals in the instant case was

rendered on October 17, 1995. Petition for rehearing or sug-

gestion for rehearing was denied on January 26, 1996. The

Eleventh Circuit Court of Appeals had jurisdiction pursuant

to Title 28 U.S.C. § 1291. This court has jurisdiction pur-

suant to Title 28 U.S.C. § 1254.

STATUTES INVOLVED

Section 922 (g) of Title 18 provides as follows:

(g) It shall be unlawful for any person —

(1) who has been convicted in any court of a crime

punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any

controlled substance (as defined in Section 102 of the

Controlled Substance Act (21 U.S.C. 802);

(4) who has been adjudicated as a mental defective

or has beencommitted to a mental institution;

(5) who, being an alien, is illegally or unlawfully in

the United States;

(6) who has been discharged from the Armed Forces

under dishonorable conditions; or

(7) who, having been a citizen of the United States

has renounced his citizenship.

ia |

STATEMENT

Introduction

This petition brings before this Court an issue of

Federal and State law that the Court of Appeals has no guid-

ance of the issues herein. The decision by this court in, Cox

vs. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 LEd 2d 487

(1965); and Raley vs Ohio, 360 U:S. 423, 79 S.Ct. 1257, 3 L

Ed 2d 1344 (1959), does not address the interpretation of

one law enforcement entity interpreting criminal statute of

the other law enforcement entity, such as Federal vs. State

criminal liability, to warrant requested jury instruction as

entrapment by estopple.

STATEMENT OF RELEVANT FACTS

On June 2, 1993 in the United States District Court

for the Northern District of Georgia, Gainesville Division,

the petitioner was indicted for a violation of 21 U.S.C. § 861

and 21 U.S.C. § 846. A Superseding indictment was filed

against petitioner on July 7, 1994, charging him with addi-

tional violation of Title 18 U.S.C. § 922 (g)(1), i.e. posses-

sion of a firearm by a convicted felon.

Petitioner entered a plea of not guilty to all counts in

the indictment and proceeded to trial. Trial commenced

before a jury on February 1, 1994. Petitioner requested an

instruction on entrapment by estopple. The government con-

ceded that there was sufficient evidence to warrant an

4

entrapment instruction. The government then requested an

instruction that a firearm permit is not a defense to a 922 (g)

charge. On the morning of closing arguments, petitioner's

counsel made an incomplete request to withdraw either the

entrapment charge or the equal access charge. The district

court promised however, in response to a clarification

request by the government, that, "regardless", if entrapment

was argued, an entrapment instruction would be given to the

jury. Petitioner argued good faith reliance on the State of

Georgia in issuing the firearm permit and licensing him to

become a bondsman. No entrapment instruction was given.

The district court did however instruct the jury on the gov-

ernment's theory of the case by charging that a firearm per-

mit issued by the State or county was no defense to the

firearm charge.

When the jury was unable to reach a verdict on the

drug charges, a mistrial was declared as to those charges

only. The jury found the petitioner guilty on count 14, the

firearm possession charge. Petitioner subsequently entered a

plea of guilty to one count of possession of cocaine with

intent to distribute. Petitioner was sentenced to 33 months

incarceration and is presently incarcerated in the Atlanta

Federal Prison Camp.

THE ELEVENTH CIRCUIT'S OPINION

The panel, Judges, Kravitch, Hatchett and Cox, in its

per curiam opinion, found Petitioner’s felony conviction was

S.

a federal conviction, and therefore he had no viable

entrapment by estoppel defense based upon the conduct of

Georgia officials. See Beecham vs. United States, 128 L.

Ed 2d 383 (1994); United States vs. Bruscantini, 761 F. 2d

640 (llth. Cir. 1985). The instructions the court gave, there-

fore, were not erroneous, and the court did not err in declin-

ing to instruct the jury as Shoffeitt (petitioner) requested.

REASONS FOR GRANTING THE WRIT

This Court's decision in Cox vs. Louisiana, 379 U.S.

559 (1965); and Raley vs. Ohio, 360 U.S. 423 (1959) does

not address whether a person could rely on state law

enforcement's interpretation of a federal law, that such con-

duct is not against the law, in order to pursue a defense of

entrapment by estopple. This Court's ruling in Cox, supra,

relying on it's earlier ruling in Raley, supra, that Due

Process Clause prevented conviction of a person for refusing

to answer questions of a state investigating commission

when they relied upon assurances of the commission, either

expressed or implied, that they had a privilege under state

law to refuse to answer, though in fact this privilege was not

available to them.

In the instant case, the petitioner gave good faith reliance on

State official’s issuance of his firearm permit and their inter-

pretation of federal law to warrant the reliance on his

defense of entrapment by estopple to warrant the requested

instructions.

6.

Not only were the actions of the State of Georgia

relied on by the petitioner, there were published appeals and

court rulings that drew nationwide attention, that allowed

convicted felons to possess firearms after their release from

any supervision; i.e. United States vs. Geyler, 932 F. 2d

1330 (9th. Cir. 1991); United States vs. Edwards, 946 F. 2d

1347 (8th. Cir. 1991); United States vs. Swanson, 947 F. 2d

914 (llth. Cir. 1991); the aforementioned cases dealt with the

restoration of civil nghts. See Title 18 U.S.C. § 921 (a)(20).

In United States vs. Geyler, supra, the ruling dealt with per-

sons being previously convicted of a federal crime and the

Ninth Circuit found that 18 U.S.C. § 921 (a)(20) applied and

vacated the conviction.

<7 cy

The petitioner was indicted and tried on February 1,

1994, before this Court rendered it's decision in Beecham

vs. United States, 128 L. Ed 2d 383 (1994), that foreclosed

the restoration of civil nights defense, when the previous

conviction resulted in a federal conviction. Beecham, supra,

was decided on May 16, 1994, some months after the peti-

tioner was arrested for the charged conduct. Therefore, the

petitioner could have reasonably believed that the actions

from the State of Georgia and the Appeals Courts opinions

were correct and still in effect at the time of his criminal

conduct, to warrant the requested instructions of entrapment '

by estopple. .

The Ninth Circuit Court of Appeals, found in United

States vs. Albertini, 830 F. 2d 985 (9th. Cir. 1987), a case

close to point. "A peace protester while in conduct of leaflet-

if

ting navalbase had been tried in court and vindicated on

appeal could rely upon appellate court's decision in repeat-

ing the same conduct after receiving the appellate judgment,

before the supreme Court's reversal of that decision.

U.S.C.A. Const. Amend. 5; U.S.C.A. Const, Art. 1, § 9, cl.

3; art 1, § 10, cl 1."

Not only did the State of Georgia issue the petitioner

a permit for a firearm, the published Court of Appeals opin-

ions in the Eleventh Circuit, in a published opinion, United

States vs. Swanson, supra, found that the language in Title

18 U.S.C.§ 921 (a)(20), "unless expressly provides that

the person may not ship, transport, possess, or receive

firearm” the federal law does not apply. The issuance of the

firearm permit, clearly shows that the petitioner was not

restricted by the State, and the federal appeals Court's opin-

ion clearly so held that he was not under any disability.

Until this Court's opinion in Beecham, supra the petitioner

could so rely on the earlier rulings, to reasonably believe his

conduct was not against the law, Albertini, supra, and his

theory of defense, warranted the requested instructions

entrapment by estopple.

The Eleventh Circuit Court of Appeals, relied upon

United States vs. Bruscantini, 761 F- 2d 640 for the propo-

sition that the actions of a state judge and prosecutor who

had told a defendant that he was not a convicted felon after

he entered a plea of nolo did not establish a valid estoppel

defense.

8.

The ruling in Bruscantini, supra, dealt with prior

firearm laws, Title 18 U.S.C. § 922 (b) (1982). At that time

this court's ruling in Dickerson vs. Dew Banner Institute,

460 U.S. 310 was good law. Since the new firearm amend-

ment, Firearm Owner Protection Act, Pub. L. 99-508, effec-

tively overruled Dickerson, supra.

The rule on Cox and Raley is a narrow exception to

the general principle that ignorance of the law is no defense.

It was prompted by this court's observation that permitting

the government to prosecute individuals who reasonably rely

upon government's interpretation of the law would constitute

a kind of entrapment.

The lower court has interpreted Cox and Raley for

narrow proposition, that the benefit of estoppel defense is

that it encourages government officials to better know and

articulate the law, that benefit is not present where applica-

tion of the defense would penalize the wrong government;

the government that prosecuted the defendant rather then the

government that mistakenly and misleadingly interpreted the

law. This interpretation would be correct, if, federal law

allowed only for prosecution of Federal crimes and State

law allowed for only prosecution of state crimes. But

Congress in its legislation of the Comprehensive Drug

Abuse Prevention and Control Act of 1970 enacted federal

laws that corresponded with laws of the States. This is more

apparent in the laws concerning firearms. Congress has

become more aware of this, by its legislation of the Firearm

Owner's Protection Act, Pub. L. 99-308 when Congress

9.

allowed the states to determine the status of their felons for

purposes of their firearm laws. Tidle 18 U.S.C. 921 (a)(20).

Moreover, the inclusion in the statute of § 921, that allowed

states to determine the status of their felons, could not have

been accidental and Congress was certainly aware of it. See

Special Project, The Collateral Consequences of a

Criminal Conviction, 23 Vand. L. Rev. 929, 1143 (1970).

The issue before this court, is not whether the peti-

tioner’s rights were restored under § 921 (a) (20), but

whether the petitioner could have reasonably relied on state

official advice that he could legally possess a firearm, to

warrant a requested instruction of estopple by entrapment.

Petitioner's total theory of his defense was based upon the

issuance of the firearm permit by the state. "It is elementary

law that the defendant in a criminal case is entitled to have

presented instructions relating to a theory of defense for

which there is any foundation in the evidence". Perez vs.

United States, 297 F. 2d 12 (Sth. Cir. 1961) “The defendant

is entitled to a separate instruction specifically charging the

jury on his theory of defense if the theory has legal and evi-

dent-iary foundation". United States vs. Silverman, 745 F.

2d 1586 (lith. Cir. 1984) Surely, petitioner was entitled to

an instructions that related to his only theory of defense.

The petitioner had been issued a firearm license, and

licensed to act as a bondsman with the full knowledge of the

officials of the State of Georgia. Whether he reasonably

could have believed that he had been relieved of his firearm

disability was a fact for the jury; a fact which the jury

10.

could not address without the necessary guidance (jury

instruction from the court) - to frame the question.

Therefore, the petitioner should be entitled to a new trial

with instructions that an entrapment charge be given and

necessary for a fair trial.

The petitioner respectfully prays that this honorable

court will grant certiorari to revisit its earlier ruling in Cox

and Raley, supra, to allow consideration of the defense of

entrapment by estopple when State Officials and Federal

Appeals Court’s misinterpretations of federal laws, could

mislead a defendant to believe in good faith that his conduct

is not against any laws of the United States, until their inter-

pretations has been explicitly changed by a ruling from this

Court, to warrant requested jury instructions as entrapment

by estopple.

CONCLUSION

For the foregoing reasons, the writ of certiorari

should be granted.

Respectfully submitted

John Henry Shoffeitt, Pro se

Reg. No. 43933-019

P.O. Box 150160

Atlanta, Georgia 30315

CERTIFICATE OF SERVICE

I hereby certify that I have caused on this 10th day of May,

1996, a copy of the foregoing to be sent by United States

mail to the Solicitor General’ s office, 10th. & Constitutional

Ave. Washington, D.C. 20530.

App. A, pp. 1a

[Filed October 17, 1995]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 94-8646

Non-Argument Calendar

D. C. Docket No. 2:93-cr-013-1-WCO

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JOHN HENRY SHOFFEITT,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Georgia

(October 17, 1995)

Before KRAVITCH, HATCHETT and COX, Circuit

Judges.

PER CURIAM:

App. A, pp. 2a

John Henry Shoffeitt was convicted, following a jury trial,

for being a convicted felon in possession of a firearm in vio-

latidn of 18 U.S.C. S 922(g). He appeals.

Shoffeitt contends that the trial court erred in failing to give

his requested jury instruction on entrapment by estoppel.

Construed liberally, Shoffeitt’s brief also asserts that the trial

court erred in instructing the jury that a firearms permit

issued by a state or county agency is no defense to the

offense charged. (Appellant's Br. at 24.)

Shoffeitt’s felony conviction was a federal conviction, and

therefore he had no viable entrapment by estoppel defense

based upon the conduct of Georgia officials. See Beecham v.

United ____ US. , 114 S. Ct. 1669 (1994); United

States v. Bruscantini, 761 F.2d 640 (llth Cir. 1985). The

instruction the court gave, therefore was not erroneous, and

the court did not err in declining to instruct the jury as

Shoffeitt requested.

AFFIRMED.

App B, ppib

United States Court of Appeals

FOR THE ELEVENTH CIRCUIT

No. 94-8646

Non-Argument Calendar

D.C. Docket No. 2:93-cr-013-B

[Filed October 17, 1995]

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN HENRY SHOFFEITT,

Defendant-Appellant.

On Appeal from the United States District Court for the

Northern District of Georgia

weer ere eed

Before: KRAVITCH, HATCHETT, and COX, Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the Northern

District of Georgia, and was taken under submission by the

Court upon the record and briefs on file, pursuant to

Eleventh Circuit Rule 34-3;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the judgment

of conviction of the said District Court in this cause be and

the same is hereby AFFIRMED.

Entered: October 17, 1995

For the Court: Miguel J. Cortez, Clerk

. Vi

Deputy Clerk

ISSUED AS MANDATE: 2-7-96

App B, pp2b

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-8646

[Filed January 26, 1996]

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus |

JOHN HENRY SHOFFEITT, |

Defendant-Appellant.

On Appeal from the United States District Court for the

Northern District of Georgia

N PE ES-

(Opinion , 11th Cir.,

19 ae )

Before: KRAVITCH, HATCHETT, and COX, Circuit

Judges.

PER CURIAM:

The Petition (s) for Rehearing are DENIED and no

member 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 Procedure; Eleventh Circuit Rule 35-5), the

Suggestion (s) of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

Phyllis Kravitch

UNITED STATES CIRCUIT JUDGE

ORD-42

(6/95)