Petition for Writ of Certiorari — Smith v. Lang

U.B.

Court,

FILED

‘! 9x 734 sep -8 097

No. 97-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

WESLEY A. SMITH,

Petitioner,

-V-

RICK J. LANG,

Respondent.

ON PETITION FOR A WRIT OF CERTIO:.. .RI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Wesley A. Smith

1790 St. Rd. 142

Martinsville, IN. 46151

In Forma Persona

QUESTIONS PRESENTED

I). Whether Petitioner loses his Fourteenth

Amendment right, not to be deprived of liberty, without

Due Process of Law, if Petitioner used Entrapment as a

defense?

Il). Whether Petitioner’s Fourteenth Amendment

right to Due Process were violated by: 1). The

manufacture and creating of new crime that was not

existing, nor anticipated? 2). Concealing exculpatory

evidence, concealing predisposition? 3). Intentionally

misleading or withhoiding facts which negate probable

cause to whom that have the ultimate authority to

authorize arrest?

ll

TABLE OF CONTENTS

Page

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Appendix:

Order of the United States Court of Appeals

for the Seventh Circuit, Wesley Smith v.

Rick J. Lang, (June 16, 1997).......................cc0000 lpa

Order of the United States Court of Appeals

for the Seventh Circuit, Wesley Smith v.

Rick J. Lang, (May 7, 1997)..................cccccesseees 2pa

Order of the Untied States District Court for

Southern District of Indiana, Wesley Smith

v. Rick J. Lang, (October 25, 1995)... 12pa

ill

TABLE OF AUTHORITIES

Cases Page

Hunter v. State,

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Jacobson v. United States,

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Olson v. Tyler,

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People v. Isaacson,

IE MUO PUD occ snsssuseeskaessseennonencaavevussssnoneess

Rochin v. California,

IY 5 ss conenvaoveinssncersenitavsesncsevncravrs

Sherman v. United States,

I IED oo cscnicsnsecesvexssonsyvnssaassancenoossees

Sorrelis v. United States,

I EDs avcnsnscsesceesssnsssanennasconseceeseses

United States v. Bogart,

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United States v. Lard,

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United States v. Quinn,

NINE accccnscssusonnensucavennssearsevacseosssense

1V

United States v. Russell,

Oe TN sii ticcis ces tsas rcsandsacsetecinncinnecceeres 5

United States v. Twigg,

IEE nig verscanvianssprticarnaeccatiens 7,10

Whitley v. Seibel,

ee SE issiscniciceusleasssametetaeecccaen 11

Williamson v. United States,

ud ESN a PeRES MOEN NEBR HI m4 11

Wyatt v. Cole,

eb te a) 96. * 5 ee PS Tee LIAR NDS 10

CONSTITUTION

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I

PRAYER

Petitioner Wesley A. Smith, pro se, respectfully

requests that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the Seventh Circuit in this case.

OPINIONS BELOW

The Order of the Seventh Circuit Court of Appeals is

attached, (Appendix Ipa). The Opinion of the Seventh

Circuit Court affirming the United District Court for the

Southern District of Indiana was unpublished Order attached,

(Appendix 2pa). The Opinion of the United States District

Court for the Southern District was unpublished Order

attached, (Appendix 13pa).

JURISDICTION

The judgment of the United States Court of Appeals

for the Seventh District denied Rehearing, entered on June

16, 1997. This Petition for Certiorari is filed within 90 days

of that date. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The fifth and Fourteenth Amendment to the United

States Constitution provides in pertinent part as follows:

... nor shall any State deprive any person of life,

liberty or property, without due process of law.

2

STATEMENT OF THE CASE

In February of 1987, a jury acquitted Petitioner,

Wesley A. Smith, of possession and drug dealing charges in

Hendrick’s County. Petitioner used Entrapment as his sole

defense. Government conduct violated Fundamental

Fairness and Petitioner’s right to due process, as outlined

herein:

1). Petitioner was not engaged in any drug dealing

activities, prior to, or during a three (3) month period from

June to August of 1986, when Informant Stroud

unsuccessfully tried to purchase cocaine from Petitioner,

approximately five (5) times.

2). Stroud had been Petitioner’s drug supplier. He

first attempted to purchase some cocaine back, which he had

just sold to Petitioner, before becoming an informant on June

5, 1986.

3). When Petitioner was unable to locate a new

source of cocaine, Informant Stroud in early July provided

Petitioner with a cocaine supplier. Afterwards Stroud

attempted to purchase cocaine. Petitioner told Stroud, no, he

did not want to become involved, due to having two small

children and having been in trouble seven (7) years prior.

4). Informant Stroud in a two month period had made

purchases only from two targets, also Stroud’s major dealer,

he’d been working on, he could no longer find. Officer Lang

was unhappy with Stroud’s performance, Stroud was then

given a quota, he needed at least “one (1) more”, and a

“good one (1)", to get his desired deal.

5). Mid August, Stroud had not made anymore buys.

Officer Lang acted like Stroud wasn’t going to. get his deal,

and he “might have to do some time”, because “he was going

to have to rap things up pretty soon if (they) wasn’t going to

make anymore buys.”

6). To secure his freedom, Informant Stroud

engineered a drug transaction in late August, by introducing

Petitioner to another drug dealer, Stroud told Officer Lang,

that Tony (already had made (3) cocaine buys), was getting

in a large shipment of marijuana. Stroud engineered a drug

transaction, and had Petitioner deliver the marijuana to the

first drug supplier (introduce by Stroud), and himself, if not,

Petitioner would be cut off from the drug source that Stroud

had provided. Only customer Petitioner had was government

agents.

7). Officer Lang was the catalyst for Stroud’s actions.

The first hand knowledge Officer Lang knew of Petitioner,

was when Petitioner had paged Stroud, looking to buy some

cocaine to use. Officer Lang told Stroud, to “try and make a

buy”, where no drug dealing activity was going on, Stroud

expressed this to Officer Lang. After failed attempts of

purchasing cocaine, Lang still continued to send Stroud back,

trying to make a purchase. Stroud came to a point, to receive

his deal, he felt he had “no choice”, but to set Petitioner up.

At tral, these events that happened during the three

(3) months, did not exist. Knowing what Stroud had done, to

conceal his actions Officer Lang, just prior to the first

transaction, told Stroud to “forget” (about the three (3)

months) and “(we’d) start here with Wes.” (the first (1)

transaction).

Stroud gave a deposition in 1995, recanting his

testimony, he talked about being at Petitioner’s house, he

said:

“When they asked that question when I was on

the stand about the pool table, I remember looking

at Lang. I didn’t know what to say. I mean, I knew

I'd been there and Wes was saying | was there.

4

You know, I felt like they (jury) knew I was lying.”

8). Officer Lang erased a taped recording of a

transaction. Lang testified at trial that “the recorder was

running and running fine, but nothing came out”. Officer

Mishler and Informant Stroud testified they had heard the

recording and described it the same way, coming in and out,

in and out. (At tnal, court ordered Separation of Witnesses).

On February 2, 1989 Petitioner file an action under

42 US.C. § 1983 civil rights suit in the United States

Southern District Court of Indiana, Petitioner alleged that he

was denied Due Process of law, in that the named defendants

knowingly conspired to deprive Petitioner of his liberty,

under Fourteenth Amendment.

On October 25, 1995 the District Court granted

Officer Lang Summary Judgment, because Smith has not

demonstrated a genuine issue of material fact to be resolved

at trial and entered Final Judgment.

On February 16, 1996 the Seventh Circuit Court

Dismissed for lack of jurisdiction, the district court did not

dispose of the claims against all the defendants.

Petitioner requested a Final Judgment and Dismissed

other claims against remaining defendants. The District

Court granted Request on March 18, 1996.

On June 3, 1996 Petitioner filed his appeal. On May

7, 1997 the Seventh Circuit held:

“Smith did not attempt to demonstrate that

Lang’s conduct was so outrageous as to rise to a

violation of due process, for instance, by creating

the risk of convicting an innocent person” ...

“because the defense of entrapment is an “excess

for, not a denial of, crime” and thus “does not bear

on innocence.”

On May 20, 1997 Petitioner filed for a Rehearing,

5

inwhich to correct the facts the Seventh Circuit used in

making their decision. The Seventh Circuit denied

Rehearing on June 16, 1997.

REASON FOR GRANTING PETITION

The Seventh Circuit’s decision in this case conflicts

with the Supreme Court’s ruling in United States v. Russell,

411 U.S. 423 (1973), and other circuit’s rulings. At the

district court level, conflicting decisions are proliferating

rapidly in virtually all circuits, and the need for guidance

from this Court is acute. This case is a timely and rare

opportunity to provide that guidance, since there are

systemic reasons why few of the district court decisions

receive appellate review. Moreover the principle of the

Seventh Circuit’s decision raises a serious question, as to

Limitations, in regards to due process under Fifth and

Fourteenth Amendment.

I). The Court of Appeals’ Interpretations of Due

Process, Conflicts with the Supreme Court

Interpretations and other Authority in the District

Courts.

In United States v. Russell, 411 U.S. 423, 431-32

(1973):

[T]he Supreme Court identified due Process as

a possible theory available to a defendant to redress

governmental entrapment. /d. The Court limited

relief, however, to instances where law enforcement

conduct violates “fundamental fairness, shocking to

the universal sense of justice.” /d.

6

The Seventh Circuit in it’s ruling went beyond

Russell, and defines due process as:

“A cause of action exists only where the state

law violation is extreme that it raises to the level of

a due process violation, such as whether state law

violation “create(s) serious risk of convicting an

innocent person.” Eaglin v. Wborn, 57 F.3d 496,

501 (7th Cir.) (en banc), cert. aemed. In Eaglin, this

Court explained that violations of state entrapment

laws do not necessary create such a risk because the

defense of entrapment is an "excuse for, not a denial :

of crime” and thus “does not bear on innocence.”

Id.

The Court overlooks law enforcement conduct that

violates “fundamental fairness”, mandated in Russell, or the

question of “limitations”. With the Court’s ruling, two

questions emerge?

A). Does due process violations bear on innocence of

the defendant?

The Eighth Circuit in United States v. Lard, 734 F.2d

1290, 1296 (1984), held:

“Apart from entrapment defense, undercover

agent’s overinvolyment in_ conceiving and %

contriving crimes for which defendant was charged

approached being so outrageous that due process

principles should bar government from invoking

judicial processes to obtain a conviction. U.S.C.A.

Const. Amend. 5.” Jd. .

Here Lard was guilty of the offense, but the Court

found Lard’s due process violated by the actions of law

enforcement.

The Third Circuit in United States v. Twigg, 588 F.2d

373, 381 (1978), held:

“This egregious conduct on the part of

government agents generated new crimes by the

defendant merely for the sake of pressing criminal

charges against him ... Fundamental fairness does

not permit us to countenance such actions by law

enforcement officials and prosecution for a crime so

fomented by them will be barred.” /d.

Here like in Lard, Twigg was guilty of the offense,

but the Court found 7wigg’s due process violated by the

actions of law enforcement.

B). Does due process demand limitations to law

enforcement conduct?

In Rochin v. California, 342 U.S. 165, 166-67 (1951)

Rochin's stomach was pumped which produced two (2)

morphine capsules, he was charged under “California’s

Health and Safety Code, 1947, 11,500.” Id. The Supreme

Court held:

“The conviction reversed, because it was

obtained by methods violative of the Due Process

Clause of the 14th Amd.” /d., .. “[A] conviction

which rest upon evidence of incriminating objects

obtained from the body of the accused by physical

abuse is as invalid as a conviction which rest upon a

verbal confession extracted from him by such

abuse.” /d.

Rochin was guilty of the offense, but the Court set

limitations as to law enforcement actions.

8

The Ninth Circuit in United States v. Bogart, 783

F.2d 1428, 1436 expanded on the Court’s view in Rochin:

“We have not accepted the view that this

highly discrete group of extreme cases of police

brutality defines the limits of unconstitutionally

Outrageous governmental conduct. We have held

that law enforcement conduct also becomes

constitutionally unacceptable “where government

agents engineer and direct the criminal enterprise

from start to finish,” Ramirez, 710 F.2d at 539; So,

755 F.2d at 1353, or when governmental conduct

constitutes “in effect, the generation by police of

new crimes merely for the sake of pressing criminal

charges against the defendant.” Ramirez, 710 F.2d

at 540.” /d.

II). Whether Petitioner‘s Fourteenth Amend. right

were violated by: 1). The manufacture and creating

of new crime that was not existing, nor anticipated.

2). Concealing exculpatory evidence, concealing

predisposition. 3). Intentionally misleading or with-

holding facts which negate probable cause to whom that

have the ultimate authority to authorize arrest.

In the Seventh Circuit‘s decision, the account of the

conduct of law enforcement was not correct, Petitioner file

for a Rehearing, inwhich to correct the Court’s account.

Petitioner outlined Lang’s conduct. see 7th Cir. “Brief”,

Issue Ill, “Reply Brief’, Issue I, Stroud’s “Affidavit”, and

“Docking Statement”, Letters F,G,I,J,K,1. The Court has

overlooked such conduct as: |

1). Officer Lang gave Informant Stroud a quota

when he couldn’t produce.

9

2). Stroud was under duress by Lang to perform,

or face prison.

3). Stroud engineered a deal when Petitioner

wouldn't deal.

4). Stroud created crime where no crime exist to

secure his own freedom.

5). Stroud needed a quantity of drugs, which

Petitioner did not have access to.

6). Lang told Stroud to “forget” exculpatory

facts, concealing Petitioner’s predisposition.

7). Stroud committed perury to make his

testimony more incriminating.

8). Lang destroy evidence to conceal Stroud’s

actions and Petitioner’s predisposition.

9). Lang intentionally mislead those who have the

ultimate authority to arrest, inwhich the probable-cause was

fabricated and tainted by Stroud’s actions that violate due

process.

The Seventh Circuit has made this conduct

permissible, due to the fact Petitioner was entrapped,

Petitioner is no longer an innocent person in the court’s eyes,

regardless of government conduct. By the Seventh Circuit’s

ruling, the government can knowingly entrap a person, which

it will now have free rain, where by the ends justify the

means.

The Court’s decision also conflict with 42 U.S.C. §

1983, because there is no recourse or limits against police

misconduct when entrapment is used, though the purpose of

§ 1983 is to:

Deter state actors from using badge of their

authority to deprive individuals of their federally

10

guaranteed rights and to provide relief to victims if

such deterrence fails. Wyatt v. Cole, U.S. Miss.

1992, 112 S.Ct. 1827, 118 L.Ed.2d 504, on remand

994 F.2d 1113.

In Hunter v. State, 531 SO.2d 239, 243 (Fla. App. 4

Dist. 1988), held:

“We believe the action of law enforcement

officials here, where the informant was authorized

to create new criminal activity in order to secure his

freedom, rather then merely assist in apprehending

those who had already participated in a crime,

crossed the line drawn by Glosson wherein the

informant was paid “to manufacture, rather then

detect, crime.” /d.

The Court in Jacobson v. United States, 503 U.S.

540, 548 held: “Government agents may not originate a

criminal design, implant in an innocent person’s mind the

disposition to commit a criminal act ..."

The conduct of law enforcement becomes

unconstitutional when the criminal plan originates with the

government, and engineer the commission, of new crime,

where non existed, merely for the sake of pressing charges.

see such cases as: Sorrells v. U.S., 287 U.S. 435 (1932),

Sherman v. U.S., 356 U.S. 369 (1958), U.S. v. Twigg, 588

F.2d 373 (1978), People v. Isaacson, 378 NE.2d 78 (1978),

U.S. v. Lard, 734 F.2d 1290 (1984).

The Seventh Circuit in Olson v. Tyler, 825 F.2d 1116,

1121 (1987), held:

“A police officer ... in seeking a warrant based

11

on truthful and complete informant is shielded

from liability. But this standard does not neatly fit

a situation where a police officer knowingly omit

from a warrant application facts that tend to negate

probable cause. Here the judicial officer making

the probable cause determination was deprived of

facts that might be important.” /d.

The Seventh Circuit in Whitley v. Seibel, 613 F.2d

682, 686 (1980), held:

“The fourteenth Amd. does not protect against

all deprivations of liberty, but only those

accomplished without due process of law. If the

officer undertakes to make decisions which are not

his to make and then intentionally misleads those

who have the ultimate authority to authorize the

arrest, that officer may be found to have deprived

the arrestee of his liberty without due process of

law. Although some ... omission may have been

only negligent, there is a strong suggestion of

intentional and concealed cormer-cutting to

accomplish the arrest.” /d.

Officer Lang’s probable cause was fabricated and

tainted by Stroud’s action, that violated Petitioner of his due

process. Officer Lang knowingly concealed Stroud’s actions,

and intentionally mislead the probable cause court, denying

the court of making a valid determination.

In Williamson v. United States, 311 F.2d 441,445,

held: “McNabb, supra, and its progeny clearly forbid the

government to make use of the fruits of wrong doing by its

officers or agents.” /d. “Supervisory powers could deny

12

officer fruits of their misconduct.” United States v. Quinn,

543 F.2d 648 (1976).

To allow the Order of the Seventh Circuit Court of

Appeals to remain, would in effect support such conduct and

insulate it from review. In addition, it would be

contradictory not only to decisions of other circuits, but to

the trend of this Court to insure “Fundamental Fairness”

principles, under due process. For the foregoing reasons, it is

respectfully submitted that the Petition for a Wnt of

Certiorari should be granted.

Respectfully Submitted

ee 7}

Wesley mith

In propria persona

1790 St. Rd. 142

Martinsville, IN. 46151

lpa

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

No. 96-1951

Wesley Smith,

Plaintiff-Appellant,

V.

Rick J. Lang,

Defendant-Appellee.

ORDER

June 16, 1997.

before FLAUM, MANION, EVANS, Circuit Judges.

On consideration of the petition for rehearing filed in

the above-entitled case on May 21, 1997, by plaintiff-

appellant, no judge in active service has requested a vote

thereon, and all of the judges on the original panel have

voted to deny a rehearing, Accordingly,

IT IS ORDERED that the aforesaid petition for

rehearing be, and the same is hereby DENIED.

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

No. 96-1951

Wesley Smith,

Plaintiff-Appellant,

v.

Rick J. Lang,

Defendant-Appellee

ORDER

May 7, 1997.

before FLAUM, MANION, EVANS, Circuit Judges.

A jury acquitted Wesley Smith of drug-dealing

charges pending against him in Hendricks County, Indiana.

At trial, Smith’s sole defense was that he was entrapped.

[FN1]. He brought this action under 42 U.S.C. § 1983

against police officer Rick Lang for entrapping him and

arresting him without probable cause. The district court

granted Lang’s motion for summary judgment. We review

the district court’s summary judgment de novo. Booker v.

3pa

Ward, 94 F.3d 1052, 1057 (7th Cir. 1996), cert. denied, 117

S. Ct. 952 (1997); Jones v. Webb, 45 F. 3d 178, 181 (7th Cir.

1995). Because Smith has not demonstrated a genuine issue

of material fact to be resolved at trial, and because Lang is

entitled to a judgment as a matter of law, see Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986), we affirm.

Mark Stroud became a confidential informant for the

Indiana State Police to avoid prosecution for selling cocaine.

Officer Lang pressured him to make controlled purchases

from suspected drug dealers after Stroud failed to provide

any useful information. Stroud told Lang that Smith had

previously purchased drugs from him for personal use but

not for distribution. Subsequently — apparently after Lang

prodded Stroud for more results -- Stroud suggested that he

might be able to purchase drugs from Smith. Stroud twice

wore a wire while going to Smith’s home to attempt a

purchase, but on neither occasion did Smith have any drugs

to sell to Stroud. While monitoring one of these visits,

however, Lang learned that Smith (or his wife) planned to

contact Stroud as soon as they obtained drugs for resale.

Meanwhile, upon further encouragement from Lang, Stroud

asked Smith (and he agreed) to be a middle-man in several

drug transactions in Hendricks and Morgan Counties. Lang

subsequently swore a probable cause affidavit for Smith

arrest for drug dealing based on the Hendricks County

transactions.

Following his acquittal on the Hendricks County

charges. [FN2]. Smith filed suit against Lang under §

1983, alleging that Lang deprived him of his due process by

coercing Stroud to lure him into criminal activity, to destroy

evidence of the inducement, and to testify falsely at Smith’s

trial. Smith further alleged that Lang deprived him of his

Fourth Amendment rights by not disclosing at Smith

4pa

probable Cause hearing that Stroud had been unsuccessful in

two attempts to “set up” Smith, and that Stroud had told

Lang that Smith was not a seller. (R. at 521, 562.) [FN3].

To survive summary judgment, Smith must

demonstrate a material issue of fact (or that Lang is not

entitled to judgment as a matter of law) on the issue of

whether Lang deprived him of his constitutional rights. See

Celotex, 477 U.S. at 322-23. With respect to Smith’s due

process claim, the district court found Lang entitled to

summary judgment noting that “a complaint of entrapment

does not state a cause of action under § 1983.” (R. at

562,564.) We review this decision de novo and conclude

that Lang is entitled to summary judgment.

In United States v. Russell, 411 U.S. 423, 431-32

(1973), the Supreme Court identified due process as a

possible theory available to a defendant to redress

governmental entrapment. /d. The Court limited relief,

however, to instances where law enforcement conduct

violates “fundamental fairness, shocking to the universal

sense of justice.” Id. Notably, this circuit has interpreted

Russell as presenting “an extremely narrow opportunity to

challenge government conduct.” United States v. Davis, 15

F.3d 1393, 1415 (7th Cir.), cert. denied, 513 U.S. 896

(1994). Because S 1983 does not provide for relief for

ordinary violations of state law, a cause of action exists only

where the state law violation is so extreme that it rises to the

level of a due process violation, such as when the state law

violation “create[s] a serious risk ef convicting an innocent

person.” See Eaglin v. Welborn, 57 F.3d 496, 501 (7th Cir.)

(en banc), cert. denied, -- U.S. --, 116 S. Ct. 421 (1995)

(citing Estelle v. McGuire, 502 U.S. 62, 72 (1991). In

Eaglin, this court explained that violations of state

entrapment laws do not necessarily create such a risk

Spa

because the defense of entrapment is an “excuse for, not a

denial of, crime” and thus “does not bear on innocence.” /d.

In the present case, Smith argues that Lang violated

his due process rights by coercing Stroud to entrap Smith, to

destroy evidence proving the entrapment, and to testify

falsely against Smith. In support of his motion for summary

judgment, Lang submitted an affidavit stating that 1) Stroud

informed him that Smith was a known drug dealer and that

Stroud might be able to purchase drugs from Smith, 2) that

Lang learned (by wiring Stroud) that Smith (or his wife)

planned to contact Stroud “when they had drugs available for

sale,” and 3) that Lang arranged the controlled buys only

after Smith “contacted [Stroud]” and revealed that he “now

had marijuana to sell.” (R at 530.) In addition, Lang averred

that he did not tell Stroud to testify falsely against Smith, and

that he first learned - after the completion of Smith’s

Hendricks County criminal trial — that Stroud may have

misrepresented certain facts regarding Smith’s involvement

in the drug trade. Jd. Smith did not counter Lang’s affidavit.

[FN4]. In support of his due process claim, Smith pointed

only to the success of his entrapment defense at the

Hendricks County trial. He did not attempt to demonstrate

that Lang’s conduct was so outrageous as to rise to a

violation of due process, for instance, by creating the risk of

convicting an innocent person. See Eaglin, 57 F.3d at 501.

Hence, Lang is entitled to judgment as a matter of law on

Smith’s § 1983 claim based on an alleged violation of due

process. See Himba v. Odegaard, 769 F2d 1147, 1167 (7th

Cir. 1985) (noting that deputy sheriffs’ potential for violating

defendant’s constitutional rights by framing him for crimes

they committed arose solely under state law, not under ;

1983); Jones v. Bombeck, 375 F.2d 737, 738 (3d Cir. 1967)

(per curiam) (stating that “[w]hile entrapment may be a

6pa

proper defense in a criminal action, a police officer’s

participation in such activity does not constitute a

constitutional violation’’).

Smith also alleges that Lang violated the Fourth

Amendment by applying for an arrest warrant without

revealing that his probable cause affidavit was tainted by his

own entrapment of Smith. [FN5]. Although Smith’s §

1983 claim is properly rooted in the Fourth Amendment, see

Albright v. Oliver, 510 U.S. 266, 271 (1994) (holding that

plaintiffs § 1983 claim implicated Fourth Amendment

where plaintiff, who was never convicted or incarcerated,

alleged officer deprived him of liberty by arresting him

without probable cause) (plurality opinion), it is completely

barred by the existence of probable cause. See Booker, 94

F.3d at 1057; Jones, 45 F.3d at 181; Simmons v. Pryor, 26

F.3d 650, 654 (7th Cir. 1993) (stating that probable cause is

an absolute bar to defendant’s S 1983 liability for unlawful

arrest, false imprisonment, or malicious prosecution), cert.

denied, 511 U.S. 1082 (1994). Probable cause to arrest is not

necessarily negated by a defendant’s successful assertion at

trial of an entrapment defense. See Simmons, 26 F.3d at 654.

The Fourth Amendment requires that a police officer making

an arrest (or relying on an arrest warrant) have knowledge of

reasonably trustworthy facts and circumstances sufficient to

persuade a prudent person that the suspect committed or was

committing an offense. See Malley v. Briggs, 475 U.S. 335,

345 (1986) (holding that an arrest warrant will not shield a

police officer from liability for false arrest if "a reasonably

well-trained officer in [his] position would have known that

his affidavit failed to establish probable cause and that he

should not have applied for the warrant”); Booker, 94 F.3d at

1057; Jones, 45 F.3d at 181. Although probable cause is

normally a jury question, it can be found as a matter of law

7pa

“when no reasonable jury could find that the officer[] did not

have probable cause.” Jones, 45 F.3d at 182.

Smith does not dispute that the evidence presented by

Lang at the probable cause hearing (based on information

obtained through Stroud) sufficiently demonstrated his

involvement in the drug trade. Rather Smith contends that

Lang acted unreasonably in relying on the arrest warrant that

was secured on the basis of his probable cause affidavit

because Lang’s Affidavit failed to mention Stroud’s

statement that Smith was not a seller or the two failed

attempts to “set up” Smith. Lang submits that he was

reasonable in applying for and relying on the arrest warrant

because the omissions were immaterial. Moreover, as

previously noted, Lang averred that he applied for and relied

on the arrest warrant only after being apprised of Smith’s

drug-dealer reputation and of Smith’s agreement to be the

middle-man in a “deal” arranged by Stroud. (R. at 539, Lang

Aff.). Smith’s submissions in response to Lang’s Affidavit,

see supra n. 4, do not demonstrate the existence of a material

issue concerning Lang’s reasonableness in applying for and

relying on the arrest warrant. Stroud’s affidavit merely

confirms his role as a confidential informant and further

describes the context of the transactions leading to Smith’s

arrest. And even if Stroud affidavit confirms that Lang

pressured him for results, it does not counter Lang’s affidavit

that Stroud arranged the controlled purchases only after

Smith revealed his interest in obtaining drugs for resale.

Thus, we we do not see he Stroud’s earlier remarks that

Smith was not a dealer and that Smith refused to deal on

other occasions undermined Lang’s reasonableness in

applying for and relying on the arrest warrant on this

occasion. Indeed, no reasonable jury could find that Lang

did not have probable cause. [FN6].

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We further reject Smith’s attempt to demonstrate a

material issue by pointing to this court’s opinion in Jones v.

City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988) (noting

that neither a prosecutor’s decision to charge, a grand jury’s

decision to indict, nor a prosecutor’s decision not to drop

charges will shield police officer from civil liability “who

deliberately supplied misleading information that influenced

the decision”). See also Albright, 510 U.S. at 279 (stating

that the Fourth Amendment may be violated in a case in

which an officer gives misleading testimony at a preliminary

hearing and that testimony “served to maintain and reinforce

the unlawful haling in of [the defendant] into court”)

(Ginsburg, J., concurring). Although Jones upheld § 1983

liability where police officers violated the Fourth

Amendment by deliberately supplying incomplete and

misleading information to the prosecution, Jones, 856 F.2d at

994, the facts there are — as noted by the district court — very

dissimilar to those presented here. Unlike in Jones, the

evidence Lang “withheld” was neither exculpatory, nor the

type of information that would certainly have convinced the

prosecution to drop the charges against Smith. [FN7]. As

previously noted, Stroud’s comments that “Smith was not a

seller” and had refused to sell on a few prior occasions do

not clearly undermine the evidence also provided to Lang

demonstrating Smith’s willingness to sell. Hence, because

Lang was reasonable in applying for and relying on an arrest

warrant for Smith based on the information he provided in

his probable cause affidavit, Smith’s Fourth Amendment

claims are necessarily barred. Accordingly, we AFFIRM the

judgment of the district court granting Lang’s motion for

summary judgment against Smith’s § 1983 claims.

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{[FN*] After an examination of the briefs and the record, we

have concluded that oral argument is unnecessary, and the

appeal is submitted on the briefs and record. See Fed. R.

App. P. 34(a); Cir. R. 34(f).

[FN1] Smith submitted a juror’s affidavit stating the the jury

believed Smith was entrapped. (R. at 538, Reynolds Aff.)

[FN2] Smith was subsequently tried in Morgan County for

his drug sales there. Although his original conviction in

Morgan County was reversed on appeal, Smith v. State of

Indiana, 565 N.E. 2d 1059 (1991), he was convicted upon

retrial, and that conviction was affirmed on appeal, Smith v.

State of Indiana, No. 55A01-9601-Cr-2 (Ind S. Ct. Aug. 20,

1996). The district court found that this Morgan County

conviction does not bar Smith’s suit, see Heck v. Humphrey,

512 U.S. 477 (1994), because Smith’s § 1983 claims relate

only to Lang’s conduct in procuring Smith’s Hendricks

County arrest. (R at 507). Even if we consider the arrest to

be so intertwining that Heck does apply, his Morgan County

conviction does not bar Smith’s Fourth Amendment claims

because an illegal arrest does not undermine the legality of

the conviction. See Heck, 512 U.S. at 487 n. 7; Simpson v.

Rowan, 73 F.3d 134, 136 (7th Cir. 1995), cert. denied, 117 S.

Ct. 104 (1996).

[FN3] In his Response to the District Court’s Order to

Clarify his Contentions, Smith alleged that Officer Lang

deprived him of his Fourth Amendment right to be arrested

upon a warrant based on probable cause, and of his Fifth and

Fourteenth Amendment rights not to be deprived of liberty

without due process of law. (R. at 521.) Because Lang acted

under color of state rather then federal law, Smith’s due

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process claim implicate the Fourteenth rather than the Fifth

Amendment. See Bivens v. Six Unknown Named Federal

Bureau of Narcotics Agents, 403 U.S. 388, 392 (1971).

Moreover, although Smith also pleaded a Sixth Amendment

Claim, he waived this argument by not raising it on appeal.

See Johnson v. Duneland Sch. Corp., 92 F.3d 554, 557 (7th

Cir. 1996).

[FN4] In opposition to Lang’s motion, Smith submitted

several documents, including: (1) copies of the jury verdict

forms acquitting him in the Hendricks County trial; (2) a

newspaper article noting his acquittal based on entrapment;

(3) a juror’s affidavit; (4) uncertified copies of Stroud’s

deposition testimony stating that he believed Lang set up

Smith and that Lang told him not to testify regarding the

failed attempts to purchase drugs from Smith; and (5)

uncertified copies of excerpts from testimony from his

Hendricks County and Morgan County criminal trials. (R. at

538.) The first three items do not contradict Lang’s affidavit,

and the latter two uncertified submissions may not be used to

support Smith’s argument. See Fed. R. Civ. P. 56(e)

(providing that affidavits shall set forth facts as would be

admissible in evidence; supporting papers shall be sworn or

certified). Smith also submitted Stroud’s affidavit

confirming that he wore a wire to Smith house to allow Lang

to obtain incriminating evidence regarding Smith’s drug

activity, and that he “set up” drug transactions with Smith.

[FNS] According to the district court, “Smith assert[ed] that

Lang’s probable cause affidavit, which resulted in his arrest,

was incomplete, thus depriving the court of the opportunity

to make an informed decision of probable cause.” (R. at

562, 564.)

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[FN6] Because Lang did not learn of Stroud’s alleged

perjury until after Smith’s Hendricks County trial, his

reasonableness in applying for and relying on the arrest

warrant remains intact. Maltby v. Winston, 36 F3d 548, 557

(7th Cir. 1994) (noting that evidence discovered after arrest

is not relevant to inquiry into probable cause for arrest), cert.

denied, 115 S. Ct. 2576 (1995).

[FN7] In Jones, the police officer failed to inform the

prosecution about information contained in “street files” that

could have exculpated the defendant. Jd. at 988-89. In

addition, the police submitted a report to the grand jury that

contained numerous falsehoods and excluded any mention of

the exculpatory evidence. /d. at 990. Moreover, the police

department failed to alert prosecutors when one of the

officers involved in the murder investigation wrote a report

that indicated that they arrested the wrong person. /d.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Civ. No. IP 89-0174-C M/S.

Wesley Smith,

Plaintiff-Appellant,

V.

Rick J. Lang,

Defendant-Appellee

ORDER

October 25, 1995.

before McKinney, District Judge.

Plaintiff Wesley Smith (“Smith”) complains that he

was arrested and tried for certain drug offenses resulting

from the coercion of an informant by defendant police

officer Rick Lang (“Lang”). In addition, Smith asserts that

Lang’s probable cause affidavit, which resulted in his arrest,

was incomplete, thus depriving the court of the opportunity

to make an informed decision of probable cause. Smith

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further contends that Lang’s alleged conduct violated his

Fourth and Sixth Amendment rights. He seeks redress under

42U S.C. § 1983.

Lang has moved for summary judgment on Smith’s

claim. Taking the facts as tendered by Smith, informant

Mark Stroud (“Stroud”) was arrested in June of 1986. Lang

told Stroud that if Stroud could do some undercover work

and “set up” some buys, Lang would help him with his case.

According to Stroud, Lang was not satisfied with his efforts

for the first two months. The two had spoken about some

possible sellers by name. Stroud states that Lang turned up

the heat on him to make some purchases and specifically

mentioned Smith by name.

Stroud told Lang that Smith did not sell, that Smith

just bought for his own personal use. He also told Lang that

his attempts to buy from Smith had been unsuccessful.

Nevertheless, Lang insisted on results from Stroud. Stroud,

in response to Lang’s prodding, arranged for Smith to be the

middle man for two different transactions, one marijuana and

one for cocaine. But for the suggestions of Stroud, Smith

would not have been involved at all in the sale of either of

these drugs.

Smith further complains that after Lang coerced

Stroud to entrap him by luring him into committing criminals

acts, Lang deliberately withheld facts from the court at the

probable cause hearing. Specifically, Smith complains that

Lang left out the facts regarding Stroud’s unsuccessful

attempts to “set up” Smith and Stroud’s statement to Lang

that Smith did not and would not sell.

Even accepting Stroud’s affidavit as accurately

portraying the relevant events, the Court now finds the

defendant’s motion for summary judgment to be well taken.

By withholding information about informant Stroud’s

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unsuccessful attempts at purchasing drugs from Smith, and

the conclusion that Smith was not a seller, Lang did not

deprive Smith of any of his constitutional rights.

Smith does not deny his role in the sale of the drugs.

He successfully availed himself of the defense of entrapment

at trial. The Court that determined probable cause did so on

the basis of the testimony of Lang that Smith probable sold

drugs. Smith admits that he did play a role in the sale. A

criminal defendant has no constitutional nght of which this

Court is aware to-have his defenses adjudicated at the

probable cause hearing.

In addition, a complaint of entrapment does not state

a cause of action under § 1983. Jones v. Bombeck, 375

F2d 737 (3rd Cir. 1967) held, “[wJhile entrapment may be a

proper defense in a criminal action, a police officer’s

participation in such activity does not constitute a

constitutional violation.” Shieb v. Humane Society of Huron

Valley, 582 F. Supp. 717, 725 (E.D. Mich. 1984), agreed.

Plaintiff cannot make a § 1983 claim out of the entrapment.

Smith refers the Court to Jones v. City of Chicago,

856 F.2d 985 (7th Cir. 1988) in support of his position. The

police conduct described in that case involved arresting and

assisting with the prosecution of a defendant who had not

committed the crime. In addition, the defense made

concessions that made it unnecessary for the Court to

“examine the difficult question whether malicious

prosecution can ever count as a deprivation of liberty without

due process of law when the defendant is not imprisoned ...”

Jones, 856 F.2d at 992. In short, Jones is inapposite.

Defendant’s motion for summary judgment is

Granted. The police officer did not commit a constitutional

violation by failing to put forth what turned out to be a

successful entrapment defense before the judge at the

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probable cause hearing. The pressure the C.I. testified he

felt from Lang to make a drug bust does not translate to

outrageous conduct on the part of law enforcement. Nor

does it change the fact that a claim of entrapment does not

state a cause of action under § 1983. Judgment is therefore

entered in favor of the defendant Rick J. Lang and against

the plaintiff Wesley Smith.

IT IS SO ORDERED this 25th day of October, 1995.

BY THE COURT

/S/

LARRY J. McKINNEY, JUDGE

United States District Court

Southern District of Indiana