Petition for Writ of Certiorari — Zaia v. United States
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~~ “Bupremé Court, U.S.
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’ 941002 DEC 5 199%
NO+__eE-OF IHE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1994
NEERAN ZAIA,
Petitioner,
-ys-
UNITED STATES,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
R. STEVEN WHALEN**
Member of the Supreme Court Bar
Suite 1817, Penobscot Building
645 Griswold Street
Detroit, Michigan 48226
(313) 964-0898
DONALD C. DOERR
Member of the Supreme Court Bar
The Gridley Building, Suite 300
103 East Water Street
Syracuse, New York 13202
(315) 471 8113
Attorneys for Petitioner
** Counsel of Record
II.
QUESTIONS PRESENTED FOR REVIEW
WHETHER THE SIXTH CIRCUIT
INCORRECTLY APPLIED AN
ENTRAPMENT ANALYSIS WHICH WAS
UNDULY RESTRICTIVE UNDER THIS
COURT’S DECISION IN JACOBSON v.
UNITED STATES, 112 S.Ct. 1535
(1992), CREATING A SHARP
CONFLICT WITH POST-JACOBSON
ENTRAPMENT CASES FROM THE
SEVENTH AND FIFTH CIRCUITS.
WHETHER THE SIXTH CIRCUIT ERRED
IN COMPLETELY ABANDONING THE
DUE PROCESS-BASED DEFENSE OF
OUTRAGEOUS GOVERNMENTAL
CONDUCT, WHICH HAS’ BEEN
RECOGNIZED BY THIS COURT AND
APPLIED TO THE BENEFIT OF
DEFENDANTS IN THE NINTH, TENTH
AND THIRD CIRCUITS.
fee
TABLE OF CONTENTS
Questions Presented for Review......i
Table of Authorities..........2.2.ei1ii
Opiniones Belews cccccccessesscesescoel
Statement of Jurisdiction.......2+2-2
Constitutional Provision Involved...2
Statement of the Case.....ceceeeeeeed
Reasons for Granting the Writ.......3l
Camelessaic 0 0 kcscedavbewusenenes ene
ii
TABLE OF AUTHORITIES
CASES
Q
reene v. United States, 454 F2d 783 (9th
Cis. 1971) oa e * + a * 54.
Hampton v. United States, 425 US 484, 96
S Ct 1646, 48 L Ed 2d 113 (1976). °
a * & * oe * e - < 53
Jackson v. Virginia, 443 US 307, 99 S Ct
2781, 61 L Ed 2d 560 (1979) . ° e
. * * 7 o 6 — * 32
Jacobson v. United Sates, 112 S Ct 1535
(1992) e e ° ° ° 32-41,43-44
50-
52
Matthews v. United States, 485 US 58, 108
S Ct 883, 99 L Ed 2d 54 (1988) e 33
United States v. Barger, 931 F2d 359 (6th
Civ. 1991) . . e * * a 54
United States v. Harris, 997 F2d 812
(10th Cir. 1993) . . . e ° 54
United States v. Hollingsworth, 27 F.3d
41-42,47,49-51
United States v. Kussmaul, 987 F2d 345
(6th Cir. 1993) 2 + * odae 37-38
United States v. Russell, 411 US 423, 93
S Ct 1637, 36 L Ed 2d 366 (1973) . °
* oe . 7 am * * ‘e se 52, 55
United States v. Sandoval, 20 F.3d 134
(5th Cir. 1994) ‘ . ‘ 32, 39-41
iii
United States v. Twigg, 588 F2d 373 (3d
Ciz. 1978) e “ e a
° 54
STATUTES
18 USC sec. 201(b)(1) . ° ° ° 03
18 USC sec. 371 . ° ° ° . so
18 USC sec. 1546(a) . . ° ° - 3
28 USC sec. 1254 . ° ° . ° 2
8 USC sec. 1324(a)(1)(D) . ° ° o3
CONSTITUTIONAL PROVISION
US Const, AmV . ° ° ° ° é- e
iv
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1994
NEERAN ZAIA,
Petitioner,
-vs-
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Petitioner NEERAN ZAIA, through her
attorneys, R. STEVEN WHALEN and DONALD C.
DOERR, respectfully asks that this Court
issue a Writ of Certiorari to review the
judgment of the United States Court of
Appeals for the Sixth Cixouit.
OPINIONS BELOW
The full text of the opinion of the
United States Court of Appeals for the
Sixth Circuit, Docket No. 93-1452,
released on September 2, 1994, is
reproduced in the Appendix, p. la.
The judgment of the United States
District Court for the Eastern District
of Michigan in United States v. Neeran
Zaia, No. 92-CR-80137-01-DT, is
reproduced in the Appendix, p. 37a.
STATEMENT OF JURISDICTION
The judgment of the United States
Court of Appeals for the Sixth Circuit
was entered on September 2, 1994 .
This Court’s jurisdiction is invoked
under 28 U.S.C. 1254.
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment to the United
States Constitution reads as follows, in
pertinent part:
"No person shall...be deprived
of life, liberty, or property,
without due process of law..."
STATEMENT OF THE CASE
Petitioner NEERAN ZAIA was tried
before a jury in the United States
District Court for the Eastern District
of Michigan, the Honorable Bernard A.
Friedman, presiding, on an indictment
charging 12 counts of visa fraud, 18
U.S.C. sec. 1546(a), seven counts of
bribery, 18 U.S.C. sec. 201(b)(1), and
one count of alien smuggling, 8 U.S.C.
sec. 1324(a)(1)(D).' The jury convicted
her of seven counts of visa fraud, three
counts of bribery, and the _ alien
smuggling charge, and acquitted her of
the remaining counts.
On March 15, 1993, Petitioner was
sentenced to 15 months imprisonment on
each count of conviction, to be served
concurrently. On September 2, 1994, the
United States Court of Appeals for the
1 A count of conspiracy to smuggle
aliens, 18 U.S.C. sec. 371, was dismissed
on the government’s motion.
3
Sixth Circuit affirmed Petitioner’s
convictions.
The charges against Petitioner arose
out of actions she took in late 1991 and
early 1992 to help a group of Iraqi
refugees flee from Jordan, where they
faced persecution in the wake of the
Persian Gulf war.
Sue Williams, an American
expatriate, testified that she was the
owner of Mom’s restaurant and hotel in
Belize City, Belize, and that she had
lived in Belize since 1973. Mom’s is
located within walking distance of the
U.S. Embassy in Belize City, and Williams
was acquainted with Rudolph (Rudy) Boone,
head of the consular section at the
Embassy.
Williams said that in January of
1992, Petitioner came to her hotel
seeking lodging for a group of 16 people.
They checked in on January 19, 1992, and
stayed about three weeks, until February
12, 1992. Williams said that the group,
which included a 3-year-old child and a
pregnant woman, mostly stayed around the
hotel, and seemed to be angry and
frustrated over the time they were
spending in Belize, often asking
Petitioner when they were going to be
leaving. At one point, a fist-fight broke
out between two men in the group, Williams
said that the group was also getting on
her nerves, that she did not want them
there, and that she may have asked them
to leave at one point.
Sue Williams testified that Rudy
Boone called her from the Embassy, and
asked her to let him know if she heard
anything unusual from the group, Williams
testified that about one _ later,
Petitioner asked her if she knew anyone
at the Embassy who could help the group
get visas to enter the United States.
According to Williams, Petitioner said
that she tried unsuccessfully to get U.S.
visas at the Embassy in the Dominican
Republic, so she was afraid to go
directly to the Embassy in Belize.
Williams claimed that Ms. Petitioner said
that they could both make a lot of money.
Petitioner also told Williams that she
had retained the services of a Belizean
attorney, ,Margaret Mousef, to assist the
group. Ms. Mousef was the sister of Saaed
Mousef, the Deputy Prime Minister of
Belize. According to Sue Williams,
Petitioner said that if the group could
not get U.S. visas, they would return to
Santo Domingo.
Rudolph Boone was the U.S. consul at
the U.S. Embassy in Belize in 1991 and
early 1992. He testified that in January
of 1992, following a telephone
conversation with Sue Williams, he
instructed Ms. Williams to call him if
she heard anything unusual with regard to
her Iraqi guests. Prior to this time, and
unrelated to the Petitioner, Boone had
asked Williams to be an Embassy "Warden,"
which he characterized as "the eyes and
ears of the Embassy," i.e., a civilian
who would act as an informant and provide
him with whatever she considered
suspicious information.
Mr. Boone admitted that even before
the group arrived in Belize, he was aware
that Petitioner had gone to the U.S.
Embassy in the Dominican Republic seeking
visas, with World Service Authority
passports as identification. He stated
that there was nothing illegal about
this. A few days before Petitioner and
the 16 Iraqis arrived in Belize, Mr.
Boone called the Mexican Embassy in
Belize and informed them that a group of
Iraqis were arriving. He also sent a
cable to the State Department in
Washington, D.C. He testified that at the
time Petitioner arrived in Belize, he had
no information that the Iraqis were
attempting to enter the United States
illegally. Mr. Boone stated that
Petitioner and her group were met at the
Belize airport by Margaret Mousef, the
sister of the Deputy Prime Minister.
After receiving a call from Sue
Williams, Mr. Boone informed the U.S.
Ambassador in Belize and the State
Department in Washington, after which
Agents Robert Valente and Jeffrey
Culvert, of the U.S. Diplomatic Security
Service, arrived in Belize. It was
decided that Mr. Boone would initiate a
meeting with Petitioner, and would
surreptitiously tape their conversation
with a hidden micro-cassette recorder.
Boone had no training as a law
enforcement officer, and he said that his
general instructions from Agents Valente
and Culvert were to find out what the
Petitioner’s concerns were. He was
instructed as to various subterfuges and
false statements he might used, but said
that his story about being a disgruntled
foreign service worker who wanted to open
a bakery in Barbados was spontaneous. Mr.
Boone testified that he had in his own
mind a concept of the “fine line" between
a proper and improper overture from
Petitioner, and that once she had, in his
estimation, crossed that line, he
believed he had a “carte blanche" to do
certain things he otherwise would not.
have done.
Mr. Boone first met with Petitioner
at Mom’s Restaurant on February 5, 1992.
He initiated the meeting by arriving
unannounced at the restaurant. The tape
of that meeting was played for the jury.’
2 The contents of the tape-recorded
conversations between Mr. Boone and Ms.
Zaia were not transcribed in the trial
9
At the meeting, Boone introduced himself,
and asked if they could talk a bit.
Petitioner asked what it was regarding.
Mr. Boone conceded at trial that although
he told Petitioner that he was the "chief
of the section," he did not immediately
identify himself as being connected to
the American Embassy. Boone began the
conversation as follows:
BOONE: I’ve gotten word from some
people that you’re here.
ZAIA: Okay.
BOONE: And I wanted to talk to you
about your situation.
ZAIA: Situation? What kind of
situation?
BOONE: Can we close the door?...And
um, you might need some help and I was
wondering what that was. I am _ the
counsel, the chief of the section.
transcript by the court reporter. Rather,
the written transcription of the tapes
prepared before trial, and provided to
the jury, represents the only available
transcript. The transcript of the initial
meeting of February 5, 1992, is contained
in the Appendix, pp. 43a to 83a.
10
ZAIA: Okay.
BOONE: And ah, that’s it.
ZAIA: You mean if I need help, you
mean, you can help?
BOONE: With your group, ah--
ZAIA: Well, most of them, they like
to stay here. (Appendix, 50a-5la).
Petitioner then talked about her
efforts to obtain Belizean “economic
citizenship" for the Iraqis, where they
would be granted citizenship if they
invested in Belize (Appendix, 53a-54a).
At trial, Boone testified that this was
at one time a program legally offered by
Belize, and that he did not advise
Petitioner that the program was no longer
operative.
At the 2-5-92 meeting, Boone
expressed sympathy for the plight of
refugees from the Middle East, relating
the story of his friend "Tafique," who
was, in Boone’s words, "a displaced,
stateless person." (Appendix, 56a-57a).
11
hes
Boone continued:
“But I understand, I think, the
Middle East situation and the
different way because of
Tafique and ah, and he’s used
to say he was a warrior, you
know, he was a Christian and
how difficult it is in that
part of the world to live
because he came from a fine
family. His father was 4
doctor; he was a lawyer, you
know. He had to practice law
for King Faud in Saudi Arabia
for two years, and so, there is
this understanding, this
feeling.
"So, if I can help you, let me
know." (Appendix, 56a~57a)
Petitioner then told Mr. Boone that
she was working with a Belizean attorney
to try to get visas for her group, and
that the lawyer had been in contact with
the Mexican embassy (Appendix, 58a).
Boone then talked about’ the great
difficulty in getting Mexican visas, and,
again bringing up the example of
“Tafique," said that there would be a
problem without U.S. visas (Appendix,
58a-59a). When Petitioner herself said
12
that she wanted to help people in the
Middle East who wanted to run away
because of the war, Mr. Boone intimated
that then-President Bush was going to
initiate another confrontation with
Sadaam Hussein in order to increase his
chances of reelection (Appendix, 6la-
62a).
At this initial meeting, Petitioner
continued to express confusion as to what
kind of help Mr. Boone was proposing, and
at one point asked if he could help her
get Belizean passports for the people in
her group (Appendix, 65a-66a). When Mr.
Boone asked her to “show some good
faith," Petitioner asked, "So what do you
want me to show you?" (Appendix, 66a-
67a). At this point, Mr. Boone directly
asked, "How much is this worth to you,”
and, when he finally stated that he was
from the American Embassy, Petitioner
expressed surprise:
BOONE: How much is this worth
to you?
ZAIA: I don’t know what you
gonna do to them. Because I
don’t know what you’re gonna
do.
BOONE: Well, if you want visas,
if that’s what you want-
ZAIA: Visas to where?
BOONE: To the U.S.
ZAIA: You can do to U.S.?
BOONE: Yes.
ZAIA: Oh my God! How long that
take?
BOONE: I’ve gotta do it within the
course of the day because if the
reconciliation, see; the numbers have to
be--it’s an easy process. And the thing
about why people don’t realize how easy
it is, is that we don’t keep records of
the issuances beyond six months.
ZAIA: So you work with the U.S.
Embassy?
BOONE: I’m the chief of the
section.
ZAIA: Oh, my God!" (Appendix,
68a-69a)
At trial, Mr. Boone conceded that up
to this point, there was no indication
that Petitioner was seeking access to the
14
United States for the group of Iraqis.
Mr. Boone then suggested that
Petitioner pay him $300 per visa, and
Petitioner agreed (Appendix, 7la). He
testified that when he asked for this
money, he knew that Petitioner had
already tried to get U.S. visas
legitimately in the Dominican Republic.
Boone asked that he be given two of the
Iraqi passports to start, and that he
would call her later that evening
(Appendix, 73a-74a). He concluded the
conversation by complimenting Petitioner
on her English (Appendix, 82a) .?
Mr. Boone testified that on February
5, 1992, Petitioner gave him four Iraqi
passports. These passports related to the
following exhibit numbers, persons and
counts in the indictment:
Govt. Ex. 1: Shahin Aram (Count I)
3 Ms. Zaia is a naturalized U.S.
citizen. English is not her first
language.
15
Govt. Ex. 2: Azhar Mikha (Count IT)
Govt. Ex. 3: Faris Yousif(Count IIT)
Govt. Ex. 4: Shatha Ayoob(Count IV)
Each exhibit had a U.S. nonimmigrant
visa stamped in it; Boone testified that
he issued the visas fraudulently, with
the consent of Agents Valente and
Culvert. Government Exhibit 3, Shatha
Ayoob’s passport, also contained a visa
for her child, Taif. Count V of the
indictment charged the fraudulent
procurement of Taif’s visa.
Mr. Boone testified that on February
5, 1992, Petitioner also gave him the
equivalent of $450 U.S. as payment for
the Mikha and Aram visas. (This money
formed the basis of the bribery
allegation in Count XxIil of the
indictment, of which Petitioner was found
not guilty). He said that he talked to
Petitioner about getting a total of 12
visas for the group.
16
Mr. Boone and Petitioner met six
more times in Belize, between February 6
and February 11, 1992. At the first
meeting on February 6th, Boone received
the equivalent of $150 U.S., and at the
second meeting on February 6th, he
received an additional $100. (These funds
formed the basis of the bribery charges
in Counts XIV and XV of the indictment,
of which Petitioner was acquitted). At
this second meeting on February 6th,
Boone refused to accept a traveller’s
check, and threatened to stop’ the
issuance of the visas for the remaining
refugees.
On February 7, 1992, Boone gave the
Petitioner the passports of Yousif and
Ayoob, stamped with U.S. visas. They next
met on February 10, 1992, at which time
Petitioner gave Boone the equivalent of
$500 U.S., in payment for the visas for
Yousif and Ayoob. (This money formed the
17
basis of Count XVI, of which Petitioner
was acquitted). At that time, Boone said,
they talked about obtaining seven more
visas for a total price of $3,000 U.S. On
February 10th, Mr. Boone testified,
Petitioner gave him three more Iraqi
passports:
Govt. Ex. 6: Kovay Aywan (Count
VI)
Govt. Ex. 7: Meisheil Antoon
(Count VIT)
Govt. Ex. 8 Maram Zaia
(Count VIIT)
Boone testified that he stamped
fraudulent U.S. visas in these passports.
Mr. Boone testified that he and
Petitioner next met on February 11, 1992,
at which time Petitioner gave him three
passports and an affidavit in lieu of a
lost passport:
Govt. Ex. 9 Ghosan Jarjin
(Count IX)
Govt. Ex. 10: Nebras Daewood
(Count X)
Govt. Ex. ll: Sarmad Marogy
18
(Count XI)
Govt. Ex. 12: Hisham Mansour
(Count XIT)
Petitioner at this time gave Mr.
Boone $1,000 in Belizean currency ($500
U.S.), which formed the basis of Count
XVII. At a second meeting on February 11,
1992, Petitioner tendered $4,900 in
Belizean currency. (This money formed the
basis of the bribery charge in Count
XVIII). At that time, Mr. Boone returned
Government Exhibits 9 through 12 to
Petitioner.
Charles Shepler, a U.S. Immigration
Officer, was on duty at the New Orleans
airport on February 12, 1992. He
testified that around noon, he questioned
Petitioner, who had arrived at the
airport with a group of six Iraqi
citizens. He said that the Iraqis had
round-trip tickets from Belize, and their
nonimmigrant U.S. visas were dated
February 12, 1992. He said that
19
Petitioner’s name had come up on his
computer, with instructions to contact a
joint federal task force. After doing so,
Mr. Shepler was contacted by Immigration
agent Timothy Houghteling in Detroit, who
advised him that they were trying to
establish a criminal case against
Petitioner, and instructed him to admit
the Iraqis into the U.S.
James P. Ennis, an agent with the
U.S. Department of Diplomatic Security,
was stationed at the U.S. Embassy in
Santo Domingo, the Dominican Republic, on
October 30, 1991. On that day, Petitioner
came to the Embassy to request transit
visas for a group of Iraqis, which would
enable the group to fly to the Miami, and
then transfer to a plane to Acapulco,
Mexico. Petitioner identified herself
with a valid U.S. passport, and presented
18 World Service Authority passports for
the Iraqis, which contained photographs
20
and identifying information for everyone
in her group. Mr. Ennis testified that
the visas were not granted, and that the
following day, Petitioner returned to the
Embassy to pick up the _ passports.
According to Ennis, Petitioner stated
that if she could not get U.S. transit
visas from the Embassy, she would contact
Mexican officials.
George Charles Lannon was employed
at the visa services section at the U.S.
State Department. He explained that the
World Service Authority (WSA) is an
international group which believes in
world citizenship, and which issues
passports to people who subscribe to its
beliefs. He said the United States will
not issue visas based on WSA passports,
but that some countries might.
Mr. Lannon testified that in late
1990 or early 1991, the U.S. Embassy in
Iraq closed operations, and that during
21
the Gulf War, papers at the U.S. Embassy
in Baghdad were destroyed. Therefore, he
said, it would be very difficult for an
Iraqi refugee in Jordan to get a visa
from the U.S. Embassy in Amman, Jordan
without documentation other than an Iraqi
passport.
Robert Valente was an agent with the
Diplomatic Security Service, a branch of
the U.S. State Department which conducts
criminal investigations. He testified
that around January 30, 1992, he received
a diplomatic cable from the U.S. Embassy
in Belize that Petitioner was there with
a group of about 12 Iraqis. Mr. Valente
arrived in Belize on February 4, 1992,
and recruited Chief Consul Rudolph Boone
to initiate a meeting with Petitioner,
and to surreptitiously record the
conversation. He told Boone to treat the
meeting as a “normal consular matter,"
and to leave the meeting open-ended, so
22
that he could assess the situation.
Subsequent meetings between Mr. Boone and
Petitioner were also taped, although
during the second meeting on February 5,
1992, the tape recorder was inadvertently
shut off.
Before he set up the first meeting,
Agent Valente told Mr. Boone that the
whole situation with the Iragis could be
an innocent misunderstanding, or that it
could be a case of a U.S. citizen with a
legitimate problem. He told Boone that
the situation might change if Petitioner
made illegal overtures, but that he
(Valente) would assess the situation
after the first meeting. Agent Valente
testified that when he arrived in Belize,
he was aware of the following facts: (1)
that Petitioner was a U.S. citizen,
legaliy in Belize with a valid passport
and Belizean visa; (2) she had presented
herself to the U.S. Embassy in Santo
23
Domingo, and properly jdentified herself;
(3) in Santo Domingo, she legally applied
for visas for the group of Iraqis, who
were all identified by documentation
provided to the Embassy; and (4)
Petitioner informed the consular official
in Santo Domingo that if she could not
get U.S. transit visas for the Iraqis,
she would try to get them Mexican visas.
Agent Valente testified that after
the first meeting with Petitioner on
February 5, 1992, he decided to have Mr.
Boone issue the visas to the Iraqis in
multiple groups, rather than doing all 12
at the same time. He said that he, not
Mr. Boone, decided how many separate
transactions there would be.
Agent Valente testified that the
Iraqis who were admitted into the United
States pursuant to his plan were all
decent, educated people who posed no
threat to American security or to the
24
interests of the American people, and
that it was more important to him to
arrest Petitioner than to prevent these
12 people from entering the United
States.
Several of the Iraqi refugees, who
were all Chaldean Catholics, testified
that circumstances in the Middle East
were such that, even after they fled to
Jordan, they were pursued by agents of
Sadaam Hussein’s government. They
testified that Petitioner met them in
Amman, Jordan, and arranged for their
travel to the Dominican Republic. Their
understanding was that Petitioner would
try to get them visas to stay in Mexico,
not the United States. The refugees also
testified about the difficulties they
encountered after arriving in’ the
Dominican Republic.
The testimony of Faris J. Yousif was
representative of the refugee’s stories.
25
Mr. Yousif testified that he left Iraq in
July of 1991, with his wife and 8-month-
Old son, and went to Amman, Jordan. He
testified that he was in trouble in Iraq
because he was called into the army, and
refused orders to invade Kuwait. He said
that it was very bad for him and his
family in Iraq, and that the Iraqi
government had registered his son for
military service, even though his son was
only an infant.
Mr. Yousif testified that he wanted
to leave Jordan because it was not safe
there for him and his family, owing to
the good relations between the government
of Sadaam Hussein and the Jordanian
government. In Jordan, he worried about
Iraqi spies. He hid at his brother’s
house in Jordan, because Iraqi agents
were looking for him. He found out later
that his brother was killed in Iraq.
In October of 1991, Mr. Yousif met
26
—
Petitioner at a tour agency in Amman, and
arranged to leave the country with the
group of 16 Iraqis, which included seven
young girls and boys, his own infant son,
and a pregnant woman. They flew to the
Dominican Republic, where they stayed for
two months. During this time, Petitioner
was trying to arrange for Mexican visas
for the group. As time was running out on
their Dominican Republic visas, they went
to Nicaragua in December of 1991.
Petitioner told them that it might be
easier to get Mexican visas in Nicaragua.
However, the Nicaraguans refused them
entry, and sent them to Guatemala. The
Guatemalan officials threatened to send
them back to Iraq. Mr. Yousif said that
in Nicaragua, the officials tried to
extort money from them.
While the group was being detained
at the airport in Guatemala, Hazim Saeegh
arrived, and contacted a representative
27
of the United Nations High Commission on
Refugees in Guatemala. The U.N.
representative told the Guatemalan
officials that the Iragis were refugees,
and that they were sentencing them to
death if they sent the group back to
Iraq.
The group was permitted to return to
the Dominican Republic, where Mr. Saeegh
arranged for a U.N. representative from
Venezuela to talk to them. They were
under guard in the Dominican Republic,
and Petitioner and Mr. Saeegh, along with
a lawyer, tried to get them visas to stay
there. The Dominican government gave them
10 days to resolve the situation, or they
would be deported to Iraq- Petitioner and
Mr. Saeegh met with a representative of
the President of the Dominican Republic,
and obtained an extension on their visas.
After obtaining additional
documentation which they understood the
28
Nicaraguans to have demanded, the group
returned to Nicaragua a second time, but
were again refused entry. From Nicaragua,
they went to Belize, being admitted to
the country on Belizean visas which
Petitioner had obtained for them. Mr.
Yousif said that the group had a deadline
by which they had to leave Belize, or be
sent back to Iraq. During this time,
Petitioner went to Mexico to try to
arrange for Mexican visas. Mr. Yousif
testified that he stayed in Belize for
about three weeks, and then flew to
Houston, with ae U.S. visa which
Petitioner had arranged for him.
Father Jaques Yasso, the pastor of
Sacred Heart Church, a Chaldean Catholic
Church in the Detroit area, described the
terrible conditions that Chaldean
Catholics faced in Iraq since the Ba’ath
Party took over in 1968, and _ how
conditions had worsened since the Iran-
29
Iraq war. He said that he encouraged
Petitioner to help Iraqi refugees in
other parts of the world.
Father Doma Behanan, also a Chaldean
Catholic priest, testified that he often
referred members of his parish to
Petitioner for assistance.
The District Court judge sentenced
Petitioner to 15 months imprisonment, the
lowest sentence possible under the
guidelines as he scored them. The judge
stated that this was “the toughest case
I’ve had as a_ judge, in terms of
sentencing," and noted that Petitioner
did some good, as the people she helped
were in substantial jeopardy. He stated
that the Iraqi witnesses would have been
killed if they had not left Iraq. In
denying a defense motion for a downward
departure from the guidelines based on
sec. 5K2.11, the judge said that
Petitioner did indeed prevent a “greater
30
harm" to the 16 refugees, but that this
did not fit into a 5K2.11 departure. The
judge added that he would impose a lesser
sentence if he could:
"If I were free to fashion a
sentence which I thought was
appropriate in this particular
matter, the record should
clearly reflect it would not be
the minimum under the
sentencing guideline, but I’m
just not free to do that."
REASONS FOR GRANTING THE WRIT
I. THE SIXTH CIRCUIT INCORRECTLY
APPLIED THIS COURT’S DECISION
IN JACOBSON v. UNITED STATES,
AND IS IN CLEAR CONFLICT WITH
THE SEVENTH AND FIFTH CIRCUITS
REGARDING THE SCOPE OF THE
ENTRAPMENT DEFENSE.
The defense in this case was
entrapment. Petitioner argued in both the
District Court and the Sixth Circuit that
the prosecution failed to present
sufficient evidence to show beyond a
reasonable doubt that she was. not
entrapped by the actions of U.S. Consul
31
Rudolph Boone.‘
The viability of this entrapment
issue depends upon the interpretation of
this Court’s decision in Jacobson V-
United States.’ In this regard, the Sixth
Circuit’s opinion, which relied on United
States v. Kussmaul®, is in conflict with
the Seventh Circuit’s en banc decision in
United States v. Hollingsworth’ and the
Fifth Circuit’s decision in United States
——ee——EEeEE———
4 In reviewing a sufficiency of the
evidence challenge, the Court must
consider "whether, after viewing the
evidence in the light most favorable to
the prosecution, any rational trier-of-
fact could have found the essential
elements of the crime beyond a reasonable
doubt." Jackson v- Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). Where evidence is presented which
would support a defense of entrapment,
the government is required to prove lack
of entrapment beyond a reasonable doubt.
Jacobson v. United Sates, 112 s.ct. 1535,
1540 (1992).
$ 112 $.ct. 1535 (1992).
6 987 F.2d 345 (6th Cir. 1993).
197 F.3d 1196 (7th Cir. 1994).
32
v. Sandoval.’ This conflict among the
Circuits suggests a need for this Court
to clarify its decision in Jacobson.
The nature of the conflict is most
clearly shown by the Seventh Circuit’s
decision in United States Vv.
Hollingsworth, which is itself a closely
divided (six to five) en bane opinion.’
Writing for the majority, Chief Judge
Posner first noted that historically, the
defense of entrapment encompassed two
elements: inducement and
predisposition.” He then stated that
Jacobson "changed the landscape of the
entrapment defense," Hollingsworth, 27
F.3d at 1198, by refining the meaning of
predisposition. The majority stated:
8 20 F.3d 134 (5th Cir. 1994).
* The vote in Jacobson was also close
(five to four, with Justice White writing
the majority opinion).
10 See Matthews v. United States, 485
U.S. 58, 62-63, 108 S.Ct. 883, 99 L.Ed.2d
54 (1988).
33
"(Tjhe [ Jacobson] Court
clarified the meaning of
predisposition. Predisposition
is not a purely mental state,
the state of being willing to
swallow the government ’s bait.
It has positional as well as
dispositional force. The
dictionary definitions of the
word include ‘tendency’ as well
as ‘inclination.’ The defendant
must be so situated by reason
of previous training or
experience or occupation ofr
acquaintances that it is likely
that if the government had not
induced him to commit the crime
some criminal would have done
so; only then does a sting or
other arranged crime take a
dangerous person out of
circulation. A public official
is in a position to take
bribes; a drug addict to deal
drugs; a gun dealer to engage
in illegal gun sales. For these
and other traditional targets
of stings all that must be
shown to establish
predisposition and thus defeat
the defense of entrapment is
willingness to violate the law
without extraordinary
inducements; ability can _ be
presumed. It is different when
the defendant is not in a
position without the
government ‘s help to become
involved in illegal activity."
(Emphasis added).
In Hollingsworth, the defendants
34
sie
were a farmer and a dentist who decided
to become international financiers, "a
vocation for which neither had any
training, contacts, aptitude, or
experience." 27 F.3d at 1200. Losing
money, they advertised the sale of their
Grenadan banking license. Seeing the
advertisement in USA Today, a U.S.
customs agent contacted the defendants,
and, adopting an undercover persona,
induced them to help him in a money
laundering scheme.
Applying the above interpretation of
Jacobson, the Seventh Circuit majority
held that the Hollingsworth defendants
were entrapped because, although they
readily accepted the government agent’s
offer to launder money, they were never
in a position to break the law before the
government’s intervention. In other
words, they may have had the "pure mental
state" to break the law, but they "had no
35
—
prayer of becoming money launderers
without the government ’s aid." 27 F.3d at
1202.
There were three separate dissenting
opinions in Hollingsworth. Judge Ripple,
in whose opinion four other judges
joined, wrote that the majority
interpreted Jacobson as creating a new
element for the entrapment defense:
readiness to commit the crime, as
distinguished from mere willingness."
Judge Easterbrook described the
analytical schism between majority and
dissent this way:
“After all, what six judges of
this court see in Jacobson,
five others think a mirage. As
we approach a thousand judges
on the federal courts, such
differences in visual acuity
i "Clarifying the position of the
majority, the court now asserts that
Jacobson significantly changed the law of
entrapment and changed it in a way that
necessitates the introduction of their
new concept of ‘readiness’ into
entrapment analysis." 27 F.3d at 1216
(dissenting opinion, of Ripple, J-)-
36
Bitte me
have the potential to transmute Norman
Rockwell’s view of the world into Joan
Mir6’s." 27 F.3d at 1212 (dissenting
opinion of Easterbrook, J.).
Judge Ripple’s dissent cited the
Sixth Circuit decision in United States
v. Kussmaul, supra, on which the Sixth
Circuit panel in the present case relied.
In the present case, the Sixth Circuit
noted the conflict between itself and the
Seventh Circuit as to how Jacobson is to
be applied, and approved the
Hollingsworth dissent:
“Hollingsworth relies upon
Jacobson to support the
distinction between a
defendant’s being ‘willing’ to
commit a crime, meaning that
she desires the outcome of the
imagined illegal act, and her
being * ready’ to commit that
crime, meaning that she is
prepared to take the steps
necessary to complete the
actual crime. 9 F.3d at 598-99.
The case law in our circuit,
however, is more in line with
the Hollingsworth dissent’s
reliance upon Jac cobson for the
propos ition that
‘predisposition is demonstrated
by the defendant’s ready
commission of [a] criminal
act.’”
37
Neither Kussmaul nor the dissent in
Hollingsworth, however, acknowledges the
following language in Jacobson:
"Petitioner’s ready response to
these solicitations cannot be
enough to establish beyond
reasonable doubt that he was
predisposed, prior to the
Government acts intended to
create predisposition, to
commit the crime of receiving
child pornography through the
mails." 112 S.Ct. at 1543.
Thus, contrary to the interpretation of
Kussmaul and the Hollingsworth dissent,
Jacobson does not presume predisposition
from the alacrity with which a defendant
accepts the government ’s invitation to
crime. If it did, then this Court would
have rejected Mr. Jacobson’s defense.”
In this regard, the conflict between the
Sixth and Seventh Circuits is manifest,
as is the conflict between the Sixth
Circuit and this Court’s decision in
2 Indeed, Justice O’Connor made this
point in her dissenting opinion in
Jacobson, 112 S.Ct at 1543 (dissenting
opinion of Justice O’Connor).
38
Jacobson.
The Fifth Circuit in United States
v. Sandoval”® applied Jacobson in
reversing a bribery conviction in which
the facts were strikingly similar to
those of Petitioner’s case. In Sandoval,
the defendant inquired of an Internal
Revenue Service agent regarding the
agency’s reward program for information
on tax evaders. The I.R.S. was
reassessing the 1988 tax liability of the
defendant and his wife, and the agent
believed that the defendant might be
trying to solicit a bribe. The agent set
up a meeting with the defendant, in which
she hinted that she would be interested
in a bribe. Although the defendant
initially expressed interest only in the
reward program, the agent continued to
push the idea of a bribe, asking, "What ’s
1320 F.3d 134 (5th Cir. 1994).
39
eT
“4 and impressing the
in it for me,
defendant with the risks she was taking.
At the conclusion of the meeting, the
defendant agreed to pay 4 bribe of
$3,000.
As in Petitioner’s case, the
government in Sandoval initiated the
bribery scheme. The Fifth Circuit found
that the agent "“play[ed] on [defendant ’s]
weaknesses and pressure([d] him into
accepting the scheme." 20 F.3d at 137.
Significantly, the court found that the
fact that the defendant agreed to the
scheme after a single meeting, as opposed
to the 26 months of government activity
in Jacobson, was not determinative of the
predisposition question: "The time
involved is less important than the
degree of pressure applied." 20 F.3d at
138.
4 These were the exact words used by
Rudolph Boone in Petitioner’s case-
40
Sandoval cannot be reconciled with
the Sixth Circuit’s ruling in
Petitioner’s case. While the Sandoval
analysis is not ag detailed as
Hollingsworth, it seems clear that the
Fifth Circuit, as well as the Seventh
Circuit, would have reversed Petitioner’s
conviction on the basis of United States
v. Jacobson.
Under Jacobson, as applied by
Hollingsworth and Sandoval, there was
insufficient proof that Petitioner was
predisposed, i.e., ready and willing, to
commit the crimes of visa fraud, bribery
and alien smuggling prior to the
inducement offered by U.S. Consul Rudy
Boone. In addition, given the life and
death situation facing the 16 Iraqis, the
government’s inducement to commit these
crimes was so strong as to be virtually
irresistible to Petitioner or to anyone
else in her position. As the
41
Hollingsworth majority stated,
"(I j]nducement is significant chiefly as
evidence bearing on predisposition: the
greater the jnducement, the weaker the
inference that in yielding to it the
defendant demonstrated that he was
predisposed to commit the crime." 27 F.3d
at 1200.
Petitioner’s lack of independent
predisposition to commit the crimes with
which she was charged is evidenced by her
conduct prior to her contact with Mr.
Boone. That conduct was legal, as
acknowledged by Agent valente. Petitioner
attempted to get transit visas from the
U.S. Embassy in Santo Domingo, worked
with Mexican, Dominican Republic and
United Nations officials, and retained
attorneys in Belize and the Dominican
Republic.”
IS In footnote 4 of its opinion in
the present case, the Sixth Circuit
refers to a government allegation of "the
42
No doubt Petitioner was extremely
anxious to make sure that her group was
not sent back to the Middle East, where
they faced dire consequences. However, as
was the case in Jacobson v. United
States, supra, 112 S.Ct. at 1541, she had
acted within the law at the time she was
attempt to bribe a Guatemalan immigration
official prior to arriving in Belize."
Appendix, p. 15a. In fact, there was no
substantive evidence of this allegation
at trial. The government questioned
Rudolph Boone on redirect examination
regarding a diplomatic cable he allegedly
received which referred to an attempt to
bribe a Guatemalan official. The defense
objected and moved for a mistrial. At a
colloquy outside the hearing of the jury,
the government conceded that the document
was hearsay, proffering it not to show
the truth of the allegations therein, but
to show why Mr. Boone took certain
subsequent actions. The trial judge
refused the government’s request to read
the cable into the record and, although
he denied a mistrial, gave the jury a
cautionary instruction on similar acts
evidence at the conclusion of the case.
In short, this cable contained multiple
levels of hearsay, was not shown to be
reliable, and was not admitted as
substantive evidence. (The objected-to
testimony and the colloquy are found in
the trial transcript of 12-7-92, pp. 170-
180).
43
induced by U-S.- government officials. As
this Court held in Jacobson:
"we simply conclude that proof
that petitioner engaged in
legal conduct and possessed
certain generalized personal
inclinations is not sufficient
evidence to prove beyond a
reasonable doubt that he would
have been predisposed to commit
the crime charged independent
of the Government’s coaxing"
Id., 112 S.Ct. at 1542, n.- 3-
Indeed, Agent Valente testified that
when he first arrived in Belize and
recruited Rudy Boone to work in an
undercover capacity, he told Mr. Boone
that the whole situation with the Iragis
could be an innocent misunderstanding, OF
that it could be a case of a U.S. citizen
with a legitimate problem.
Even during the initial part of the
February 5, 1992 meeting between
Petitioner and Mr. Boone, the Petitioner
showed little predisposition to
committing the crimes of U.S. visa fraud,
44
bribery and alien smuggling.” Before
Boone revealed that he was from the U.S.
Embassy and that he could help her get
U.S. visas for $300 each, Petitioner
stated that her group would either like
to stay in Belize or go to Mexico, and
even in that context, she asked for
nothing illegal. It was Mr. Boone, not
Petitioner, who brought up the
possibility of getting U.S. visas; it was
Mr. Boone, not Petitioner who asked,
"What’s in it for me;" and it was Mr.
Boone, not Petitioner, who suggested the
4 The only other evidence of
predisposition on which the government
relied was the testimony of Sue Williams
that Petitioner asked if she knew anyone
at the embassy who could help her. It
would be a tremendous inferential leap to
interpret this statement as expressing
interest in bribing an official, as
opposed to seeking legitimate help from
someone who was acquainted with embassy
officials. See United States v. Sandoval,
supra. Agent Valente, who was aware of
the information from Ms. Williams when he
arrived in Belize, conceded that he was
not at that point convinced that Ms. Zaia
was anything more than an American
citizen with a legitimate problen.
45
amount which should be paid for the
visas.
Furthermore, Petitioner’s lack of
predisposition to bribe a U.S. official
in order to obtain fraudulent visas is
shown by her surprise when Mr. Boone
revealed his position with the U.S.
Embassy and his willingness to sell her
visas:
BOONE: How much is this worth
to you?
ZAIA: I don’t know what you
gonna do to them. Because I
don’t know what you’re gonna
do.
BOONE: Well, if you want visas,
if that’s what you want-
ZAIA: Visas to where?
BOONE: To the U.S.
ZAIA: You can do to U.S.?
BOONE: Yes.
ZAIA: Oh my God! How long that
take?
BOONE: I’ve gotta do it within the
course of the day because if
the reconciliation, see; the
numbers have to be--it’s an
easy process. And the thing
46
about why people don’t realize how easy
it is, is that we don’t keep records of
the issuances beyond six months.
ZAIA: So you work with the U.S.
Embassy?
BOONE: I’m the chief of the
section.
ZAIA: Oh, my God!" (Appendix,
68a-69a).
The nature of the inducement offered
by the government must be weighed in
considering an entrapment defense. United
States v. Hollingsworth, supra. In
discussing the "inducement" prong of the
entrapment in this case, it should first
be noted that Mr. Boone, by his own
admission, had no training as a law
enforcement agent. His instructions from
Agent Valente were to simply gather
information, and leave the first meeting
with Petitioner open-ended. Instead, Mr.
Boone developed his own theory of where
the "fine line" between innocent and
unlawful overtures lay, and granted
himself a "carte blanche" to do things he
47
_—— ee
would not otherwise have done if, in his
independent estimation, Petitioner
crossed that line. Petitioner was
entrapped by an overly zealous amateur
who disobeyed the instructions of the
agent in charge of the investigation.
Against the factual background of
Petitioner trying to find a safe haven
for her group of 16 Iraqis, this is what
Rudy Boone did:
He approached Petitioner, who had no
idea what he wanted, and commiserated
about the tragic plight of Iraqi
Christians, personalizing the inducement
with a poignant story of his refugee
friend, "Tafique-"
When Petitioner told him that she
was trying to make legitimate
arrangements with the Mexican government,
Mr. Boone discouraged her, telling her
how difficult this would be without U.S.
visas.
48
Mr. Boone, again playing on
Petitioner’s anxiety about the situation
in Iraq, suggested that American politics
would cause the Middle East situation to
flare up again, creating more problems
for Iraqi refugees.
It was Mr. Boone, not Petitioner,
who solicited a bribe. ("What’s in it for
me?" and "How much is this worth to you?"
It was Mr. Boone, not Petitioner,
who set the amount of the bribe.
It was Mr. Boone, not Petitioner,
who structured the time and place of
future meetings.
As the Seventh Circuit noted in
Hollingsworth, the stronger the
inducement, the harder it will generally
be for the government to prove that the
defendant was independently predisposed
to commit the crime. In this case, there
was very little predisposition, short of
Petitioner’s generalized desire to keep
49
a
the refugees from being deported,
persecuted and possibly killed, and an
irresistible inducement offered by Mr.
Boone.
Thus, Petitioner was not predisposed
to commit the offenses charged prior to
contact with Rudy Boone, as required to
support a conviction under Jacobson V-
—rr
United States. Furthermore, under
Unitee __
Jacobson, as applied by United States V-
Hollingsworth, Petitioner was simply not
in a position to commit the crimes
charged without government help. Stated
differently, but for the creative
intervention of Consul Rudolph Boone,
Petitioner would not have committed those
offenses.
Judge Ripple’s dissenting opinion in
United States V- Hollingsworth, Supra, 27
F.3d at 1219, while misreading the import
of Jacobson, does offer a persuasive
reason why this Court should grant a writ
50
of certiorari:
"This en banc proceeding
sharply delineates the
differences between the
majority and the minority of
this court on the issue of
entrapment. It presents, in the
most stark terms possible, two
divergent views of the law of
entrapment. More particularly,
it presents a square difference
of opinion among the judges of
this court on the significance
of the Supreme Court’s opinion
in Jacobson. It questions the
continued vitality of
Russell.The holding of the
majority sets this circuit ona
doctrinal course different from
that of the other circuits. It
presents, as the government
notes in its petition for
rehearing, a significant
practical burden for law
enforcement authorities. It is
now for the Supreme Court to
determine whether the doctrinal
course that the majority has
now set and the burden that it
has impo re) aw enforcement
efforts are correct ones."
(Emphasis added).
Petitioner contends that the Seventh
Circuit’s en banc majority decision in
United States v. Hollingsworth, supra,
correctly applies the entrapment analysis
set forth by this Court in Jacobson v.
51
United States. Petitioner respectfully
asks this Court to grant a Writ of
Certiorari to the Sixth Circuit to
resolve the conflict among the Circuits.
II. THE SIXTH CIRCUIT HAS
COMPLETELY ABANDONED THE
DEFENSE OF OUTRAGEOUS
GOVERNMENT CONDUCT AS >
VIOLATION OF THE DUE PROCESS
CLAUSE, PUTTING IT IN CONFLICT
WITH OTHER CIRCUITS AND WITH
THE SUPREME COURT.
At trial and on appeal, Petitioner
asserted that the government ’s conduct in
this case not only constituted
entrapment, but was so outrageous that it
was a violation of the Due Process
Clause.
The outrageous government conduct
defense was first described in United
States v- Russell, 411 U-S- 423, 431-432,
93 S.Ct. 1637, 1642, 36 L.Ed.2d 366
52
(1973).'7 In a later plurality decision,
Hampton v. United States, 425 U.S. 484,
96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the
concurring opinion left open the
possibility that an outrageous government
conduct defense based on the Due Process
Clause might be successfully invoked
despite the unavailability of the
entrapment defense due to predisposition.
Id., 425 U.S. at 494-495."
The Ninth, Tenth and Third Circuits
have applied the outrageous government
conduct / Due Process analysis in
reversing criminal convictions. See
7 In Russell, Justice Rehnquist
noted that someday the Court might be
presented with a situation "in which the
conduct of law enforcement agents is so
outrageous that due process principles
would absolutely bar the government from
invoking judicial process to obtain a
conviction." Id., 411 U.S. at 431-432.
18 Tn Hampton, at least six members
of the Court in various plurality
opinions recognized the. potential
availability of an outrageous
governmental conduct defense regardless
of the defendant’s predisposition.
53
United States v. Solorio, __F.3d___(9th
Cir 1994)(No. 93-50507, rel’d 9-20-94);
Greene v. United States, 454 F.2d 783
(9th Cir. 1971); United States v. Harris,
997 F.2d 812, 816 (10th Cir. 1993);"
United States v. Twigg, 588 F.2d 373, 381
(3d Cir. 1978).
In the present case, the Sixth
Circuit ostensibly applied a due process
test set forth in United States v.
Barger, 931 F.2d 359, 363 (6th Cir.
1991), and found the defense lacking
under the facts of this case. However, as
the panel noted in footnote 6 of its
opinion (see Appendix, p. 23a), the Sixth
Circuit in fact held, in United States v.
Tucker, 28 F.3d 1420 (6th Cir. 1994),
that as a matter of law, the defense of
19 Harris was an entrapment case. The
Tenth Circuit stated in dicta that an
alternative ground for reversing the
conviction was that the government’s
conduct approached being sufficiently
outrageous to sustain a due process
defense.
54
x
a
i
outrageous government conduct no longer
exists. Rather, Tucker held, a defendant
who challenges government inducement to
crime is limited to the defense of
entrapment, with its key element of
predisposition.
The facts of this case, particularly
the overreaching nature of the
government’s actions, have been set forth
in the preceding argument and in the
Statement of the Case. If the defense of
outrageous government conduct exists,
Petitioner is entitled to its benefit
under these facts. She asks this Court to
grant a writ of certiorari to the Sixth
Circuit to resolve the clear conflict
between its opinion in United States v.
Tucker and the opinions of the Ninth,
Tenth and Third Circuits, which in turn
rely on this Court’s language in United
States v. Russell and Hampton v. United
States.
55
CONCLUSION
WHEREFORE, Petitioner NEERAN ZAIA
asks this Honorable Court to grant a writ
of certiorari to the United States Court
of Appeals for the Sixth Circuit.
Respectfully submitted,
tL bk
sapaa WHALEN
pple of Record
Attorney for Petitioner
Suite 1817, Penobscot Building
645 Griswold Street
Detroit, Michigan 48226
(313) 964-0898
HG .
\, |
DONALD C. DOERR
Attorney for Petitioner
The Gridley Building, Suite 300
103 East Water Street
Syracuse, New York 13202
(315) 471 8113
Dated: December 1, 1994
56
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.