Petition for Writ of Certiorari — Dass v. United States

Supreme Court, U.S.

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OFFICE Gr THE CLERK

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

DASS, DR. MULK RAJ

a/k/a "Dr/ Dass”.

PETITIONER

V.

UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

LOUIS DUGAS, JR.

1804 N. 16th St.

Orange, Texas 77630

(409) 883-3506

Attorney for Petitioner

QUESTIONS PRESENTED

FBI agents using fictitious names,

created a Spurious company; falsely

Claiming they sought financial help in

building an Italian Cruise line ship,

purportedly subsidized by the Belgian

government, initiated contact with

petitioner Dass and induced Dass to Signa

contract agreeing to pay $100,000.00 to

Dass to produce a letter of commitment for

the cruise ship construction.

h<

Did the court of appeals err in

holding that the government’s conduct was

not outrageous; and was DASS deprived of

due process?

ee

Did the contract preclude

petitioner’s conviction?

i

LIST OF ALL PARTIES

Dr. Mulk Raj Dass

Louis Dugas, Jr.

1804 North 16th Street

Orange, Texas 77630

(409) 883-3506

Attorney for Dr. Mul Raj Dass

United States of America

John J. Farmer, Jr.

Office of U.S. Attorney

970 Broad Street, Room 502

Newark, New Jersey 07102

Attorney for United States of America

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

LIST OF PARTIES il

INDEX TO APPENDIX iv

TABLE OF AUTHORITIES V

PETITION 7

OPINION BELOW 2

JURISDICTIONAL STATEMENT 2

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE WRIT 3

CONCLUSION 6

iti

INDEX TO APPENDIX

APPENDIX A - MEMORANDUM OPINION

FILED MAY 6, 1994 BY THIRD CIRCUIT

APPENDIX B - JUDGMENT

APRIL 11, 1994 BY THIRD CIRCUIT

APPENDIX C - SUR PETITION

FOR PANEL REHEARING

iv

PAGE

1a

10a

12a

TABLE OF AUTHORITIES

UNITED STATES V. RUSSELL,

423 U.S. 423, 434 (1073)....c.c00..

RESTATEMENT OF CONTRACTS

2D, §162, MISREPRESENTATION........

PAGE

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

UNITED STATES OF AMERICA, PETITIONER

V.

DASS, DR. MULK RAJ

a/k/a "Dr. Dass",

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES:

DR. MULK RAJ DASS petitions for a

writ of certiorari to review the judgment

of the United States Court of Appeals

Third Circuit in this case.

OPINION BELOW

The opinion of the court of appeals

(Ap., infra, la-8) is not reported.

JURISDICTION

The judgment of the court of appeals

(App., infra, 9a) was entered on June 9,

1994. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT OF THE CASE

The FBI office in Atlantic City, New

Jersey created a spurious brokerage

company to look at advanced fee schemes.

The alleged purpose of the brokerage

company was obtaining financing’ for

Italian Cruise Lines, another fictitious

company. The agents used false names in

operation of the brokerage company. On

2

February 27th, 1991, the FBI agents called

Dass, who was in Atlanta, Ga. The agent

told Dass he was seeking a letter of

credit. On 44 occasions, the agent and

Dass spoke over the telephone. The agent

in charge of the phony brokerage house

prepared a contract that was signed by the

agent and Dass. This contract provided

that Dass would receive the sum of

$100,000 if he provided the builders of

the cruise line ship a letter of credit.

Dass presented a letter of credit, but the

government did not accept it. No money

was paid Dass, who was indicted and

convicted for wire fraud.

REASONS FOR GRANTING THE WRIT

This is an unusual case. It does not

involve drugs or bribery. It is important

to decide the extent to which the

government will be allowed to manufacture

crime and more particularly crime in the

3

business place. Consideration must be

given to the citizens who perform their

part of a contract only to find that

performance is not forthcoming, because

the government created a fraud.

To allow the government to continue

it’s deceptive ways is to place a chill on

the market place. In this case the

government met the test set out in United

States v. Russell, 423 U. S. 423, 434

(1973).

"The function of law enforcement is

the prevention of crime and the

apprehension of criminals. Manifestly,

that function does not include the

manufacturing of crime." The court of

appeals decision marks a departure from

the legal principles stated by this Court.

The court of appeals ignored the fact that

the government induced the commission of

the offense in order to prosecute.

In the scenario presented by the

government, everything was false. To

prosecute Dass for wire fraud and let the

instigators go free violates due process.

Dass received nothing as the contract was

not performed. He committed no crime, but

the government did.

ON THE CONTRACT

The government prepared, presented

and provided to Dass a contract. This

contract was signed by the agent for the

government and Dass. Under the Restatement

of Contracts 2d, §162, Misrepresentation,

the contract is voidable because _ the

misrepresentations by the government were

material. The contract could never have

been consummated, because the government

could not have performed. If the

government was not required to perform

5

then Dass should not have to bear the

stigma of a conviction in such a case as

this.

CONCLUSION

For these reasons, a writ of

certiorari should issue to review the

judgment and opinion of the Third Circuit.

Respectfully submitted,

LOUIS DUGAS, JR.

1804 North 16th Street

Orange, Texas 77630

(409) 883-3506

TSB No. 06173000

ATTORNEY FOR PETITIONER

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 92-5547

UNITED STATES OF AMERICA

V.

DASS, DR. MULK RAJ

a/k/a "Dr. Dass”,

A lant

Appeal From the United States District Court

for the District of New Jersey

(D.C. Criminal No. 91-00564-01)

District Judge: Honorable William G. Bassler

Submitted Under Third Circuit LAR 34.1(a)

April 11, 1994

Before: BECKER, MANSMANN, and SCIRICA,

(Filed May 6, 1994)

MEMORANDUM OPINION

BECKER, Circuit Judge.

2a

This is an appeal from a

judgment in a criminal case, in which

Appellant Mulk Raj Dass was convicted by a

jury of four counts of wire fraud, 18

U.S.C. §§ 2, 1343. The conviction was the

product of an FBI undercover investigation

of defendant’s "“advanced-fee financial

transactions."

Appellant owned and operated a

company known as Apex Investment

Securities, Inc., which was purportedly

engaged in the business of securing

venture capital from financial

institutions on behalf of individuals and

companies. Using information from another

investigation, a special agent approached

Dass falsely representing that he was a

broker seeking venture capital for a

project involving the construction of a

cruise ship. According to the evidence

3a

(as viewed in the light most favorable to

the government), appellant agreed to try

to obtain construction financing of $25

miitlion. Pursuant to this agreement,

appellant required, and the undercover

agent agreed to pay, a total finder’s fee

of approximately $6.5 million, $100,000 of

which was payable in advance. Appellant,

however, never intended to obtain

construction financing, but instead

intended to retain the advance fee for

himself.

The evidence further established

that appellant, in order to induce payment

of the advance fee, made false

representations to the agent (i) regarding

his intention and ability to obtain

financing, including false statements

about his ability to produce a legitimate

letter of credit from Manufacturers

4a

Hanover Bank in the amount of $25 million,

and (ii) about his past successes in

obtaining financing for other clients.

Indeed, the appellant defaulted on his

commitment to produce a large letter of

credit from Manufacturers Hanover Bank,

which, as it turns out, had never heard of

him. Instead he produced only a amorphous

(and legally deficient) undertaking from a

dubious business concern. The government

introduced four fax transmissions that

served as the basis for federal

jurisdiction.

Appellant’s principal contention

is that his conviction was a product of

outrageous government conduct in violation

of due process. He relies on United

ta Vv. , 588 F.2d 373 (3rd Cir.

5a

1978), but Twigg is an extreme case and

is inapposite here. We have not extended

Twigg to less egregious circumstances.

See, e.g., United States v. Ward, 793 F.2d

551, 554 (3d Cir. 1986), cert. denied, 107

S. Ct. 98 (1986). For example in United

States v. Jannotti, 673 F.2d 578, 607-08

* In Twigg a government agent

persuaded the defendant to construct a

methamphetamine laboratory. The

government supplied the chemicals,

glassware, and physical plant. The

government agent, who alone possessed the

necessary expertise, ran the operation,

and the defendant acted as the government

agent’s direction. Once the drugs were

manufactured, the defendant carried them

to this car. He was arrested driving down

the road. See 588 F.2d at 325-26, 330-31.

—

6a

(3d Cir.) (in banc), cert. denied, 457

U.S. 1106, 102 S. Ct. 2906 (1982), we made

clear that Twigg applies only to cases in

which the governments conduct was

"intolerable" because "the government

initiated and was actively involved in the

operation of the criminal enterprise

itself." See also United States _ vy.

Gonzalez, 927 F.2d 139, 144-45 (3d Cir.

1991) (distinguishing Twigg in a drug case

where the government agents arranged the

sale of the narcotics to be purchased

by the defendant and the government

informant operated on a "contingent fee"

basis); United States v. Driscoll, 852

F.2d 84 (3d Cir. 1988) (distinguishing

Twigg where postal authorities sold the

defendant child pornography through the

mail). As there was nothing egregious

7a

about the government’s conduct here, Twigg

does not help the Appellant.

Appellant alternatively asserts

that his conviction must be reversed under

the general contracts law doctrine of

frustration of purpose because the written

contract executed between him and the

undercover agent could not have been

performed by the government. We find this

argument, which inexplicably conflates a

Civil law defense to liability with a

criminal law defense to guilt and which is

unsupported by any authority, difficult to

follow. Moreover, insofar as we

understand it, it proves too much: to the

extent it extends to he criminal law the

contract doctrine of impossibility of

performance, it severely hampers’ the

government from conducting any undercover

financial fraud investigations involving

————

8a

written contracts, because impossibility

would often afford a defense.” Yet we

have stated time and time again that we

will not lightly hamper the government’s

undercover criminal investigations, even

when we disapprove of the means employed.

See, e.g., United States v. Martino, 825

F.24 754, 763 (34 Cir. i987}. In any

event, appellant’s criminal fraud was

complete before the government’s

performance on its obligation under the

contract became due. Appellant’s second

argument must therefore be rejected.

* We also note the enormous potential

impact of appellant’s theory on _ the

government’s capacity to convict on

conspiracy counts involving undercover

government agents.

9a

The judgment of the district

court will be affirmed.

10a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CiRCUIT

No. 92-5547

UNITED STATES OF AMERICA

V.

DASS, DR. MULK RAJ

a/k/a "Dr. Dass”,

Appeal From the United States District Court

for the District of New Jersey

(D.C. Criminal No. 91-00564-01)

District Judge: Honorable William G. Bassler

Submitted Under Third Circuit LAR 34.1(a)

April 11, 1994

Before: BECKER, MANSMANN, and SCIRICA,

Circuit Judges.

JUDGMENT

This case came on to be heard on

the record from the United States District

lla

Court for the District of New Jersey and

was submitted on April 11, 1994. On

consideration whereof, it is now here

ORDERED AND ADJUDGED by this

court that the judgment of the district

court entered September 29, 1992 be and

the same is hereby affirmed.

ATTEST:

Chief Deputy Clerk

DATED: May 6, 1994

12a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 92-5547

UNITED STATES OF AMERICA

V.

DASS, DR. MULK RAJ

a/k/a "Dr. Dass",

Appellant

(D.C. Criminal No. 91-00564-01)

Before: BECKER, MANSMANN, and SCIRICA,

Circuit Judges.

SUR PETITION FOR PANEL REHEARING

This petition for rehearing

filed by Appellant, having been submitted

to the judges who participated in the

decision of this court and no judge who

concurred in the decision having asked for

13a

rehearing, the petition for

rehearing is DENIED.

BY THE COURT:

panel

Circuit Judge

DATED: June 9, 1994