Petition for Writ of Certiorari — Lopez v. United States

Office Supreme Court, U.S,

RFlikD

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“ee JUL 7. 19%

JOHN F. DAVIS, CLERK

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Supreme Court of the Anited States

Ocroper Trego, 1962

GERMAN S. LOPEZ, =:

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

er RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

{0 THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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Epwaxrp J. Davis

11 Pemberton Square

Boston, Massachusetts.

Attorney for Petitioner.

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Blanchard Printing Company. Boston. Mass. — Law Printers

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TABLE OF CONTENTS

Page

Opinion of the Court Below ...............55. Dyce

Jurisdiction ...,.....0ccseesesececees ieaxhihe s ae cmt

Questions Presented 22. .4......-5. Pao ea Ne Sore

Constitutional Provisions, Statute ~ and Rnles of Court

EMVORUOR- 6 6a of se Pr Sire rare ae $ Pace VGN e RRR Pana eR th

Statement of Case ....2.... Se ons ocd a Mie nas a ee

Reasons for Granting the nS ee ener y Pe =e 16

I. It is apperent on the Record that the issue of

Heal entrapment was duly raised at the trial

i and that tliere Was illegal entrapment of the

petitioner as to the offenses alleged in Counts

* ? Sand 4 of the indictment as a matter of law.

and the getitioner was entitled toa verdiet of

acquittal thereon, .:.2..<...—. «+ ee ae Sere,

Il. Where the Trial Judge, without request, gave

instructions 40-the jury, which as ja matter of

law were plainty misteading aud erroneous on

the issue of illegal eutrapment, and prejudicial

to the defendant, on appeal the error is open to

review for appropriate remedy, although no

exception, was taken by the defendant ......-. 24

Ill. It is a Violation of the Petitioner’s rights under

the Fourth Amendment, and prejudicial error,

where a government agent obtained entry by

inisrepresentation into the private office of the

petitioner, for the Trial Court to permit to be

played to the jury a wire recording of conversa-

tion of the government agent with the petitioner,

which the agent surreptitiously obtained while .

in the petitioner's office, and to admit the testi-

mony of the agent of the conversation where

objection was duly made 6n said constitutional

ae Table of Contents

Page

grounds and the evidence constitutes the gov-

ernment’s case as to Counts 2, 3 and 4 of the

RNa INE Pe ren Maar sina oath yr adie 27

IN choos Co eis ees irecae okies 36.

Appendix,—Opinion of Court of Appeals ............ 37

TABLE ov CITATIONS

Cases

Accardi vy. United States, 257 F.2d 168 ..¢........04- 22

Boyd v. United States, 116 U.S. 616, 626-630 . 22... eee

Butts v. United States, 8 Cir., 1921, 273 Fed. 35, 38,

SiMe SOO. aha Kis ne MAES AES TA TRS ee a 8 17

Entick v. Carrington, 19 Howell's State Trials 1029,

a a OSE TEe ea eR cae ses Peas 35

Goldman vo United States, 316 U.S. 129 ....... 30, 31, 34

Hester vy. Untted States, 365 US. 37... oc ccc vce csance OO «

Jones v. United States, 362 U.S. 257, 266 :........... 33

Kinard v. United States, 96 F.2d 522, 523 .4 S......... 24

Kreiner y. United States, 11 F.2d 722, 731 ......... a

NcDonald v. United States, 335 U.S. 451, 454 22.0.0... 30

Miller v. Untted States,.120 F.2d 968 ..:............ 24

Olmstead v. United States, 277 U.S. 488 ..000.0..... 30, 32

On Lee v. United States, 343 U.S. 747 .. 30, 31, 32, 33, 3

Sherman v. United States, 356 U.S. 369... .. er has 18

Sidrerman v. United States, 365 U.S. 505 ..2. 29, 30, 31, 34

~ Sorrells v. United States, 287 U.S. 435 ............ 17, 18

. Todisco v. United States, 298 F.2d 208, cert. den. 268

Sie: OR cad oe eae ecw ae caus fon hemes ta tots 34, 35

United States v. Jeffers, 342 U.S. 48, 51 ............. 33

United States v. Kabot, 295 F.2d 848, cert. den. 369

Pee ce Oe Srey 34, 35

I'nited States v. Klosterman, 248 F.2d 191, 192, 3rd.

"yak GRR eR DRED DP UNC Y ae tng cite yh 18, 19, 21

United States v. Landry, 257 F.2d 423......0........ 26°

Table of Contents

Miscellaneous

Constitution of the United States,” :

Furth Amendment ....... ey a ke es ee

Internal Revenue Code of 1954, Section 423

Rule 52(b), Federal Rules of Criminal Procedure ..

RO Ren SU a cic Cuan se eco ame bed Dace

28 U.S.C. See. 1254(1)

OF BOS 2 Oe oe Gee OE ew a a ee

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G

ar) i ae

\ Section 4232(b) ...

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in the

Supreme Comat of the United Sunes

Ocroper Teen, 162

No.

GERMAN S. LOPEZ,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner, German S. Lopez, by his attorney, prays that

a writ of certiorari issue to review the judgment of the

United States Circuit Court of Appeals for the First Cir-

cuit, entered on Jhine 15, 1962.

Opinion of the Court Below.

The United States Court of Appeals for the First Dis-

triet, on June 15, 1962, without opinidn, ordered, adjudged

and decreed that ‘*the judgment of the Distriet Court, ts

affirmed.”’ |

Jurisdiction

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The judgment of the Court below entered on June 3,

1962, is contained in the certified copy of Reeord of Pro-

ceedings in Court of Appeals below, filed with this petition.

\ Jurisdiction of this Court is invoked under 28 U.S.C.

s. 1254(1).

Questions Presented

1. Tt is apparent on the Record that the issue of illegal

entrapment was duly raised at the trial and that there was

Ulegal entrapment of the petitioner as to the offenses al-

leged in Counts 2,3 and 4 of the indictment as a matter of

law, and the petitioner was entitled to a verdict of acquittal .

thereon.

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1]. Where the Trial Judge, without request, gave in-

structions to the jury, which as a matter of law were plainly

misleading and erroneous on the issue of illegal entrap-

ment, and prejudicial to the defendant, on appeal the error

is open to review forappropriate remedy, although no ex-

ception was taken by the defendant. |

Ill. Jtisa violation of the Petitioner’s rights under the

Fourth Amendment, and prejudicial error, where a govern-

ment *agent obtained entry by misrepresentation into the

private office of the petitioner, for the Trial Court to per-

mit to be played to the jury a wire recording of conversa-

tion of the government agent which the agent surreptt-

tiously obtained while in the office,,and to admit the testi-

mony of the agent of the-conversation, where objection was

duly made on said constitutional grounds and the evidence

constitutes the government’s case as to Counts 2, 3 and 4

of the indict ment. 3

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Constitutional Provisions, Statutes bart ag

and Rules of Court Involved

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1. The Fourth Amendment provides

“The right of the people to be secure in their per-

sons, houses, papers, and effects against unreasonable

searches and ‘seizures shall not be violated; and no

warrants shall "issue but upon probable cause, sup-

ported by oath ar afirmation and particularly deserib-

ing the place to We searched and the persons or things

to be seized.’’ ; | eee

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2. Rule 52(b) Federal Rules of Crimimal Procedure reads:

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Plain Error, Plain errors or defects affeeting stib-

stantial rights may be noticed although they were not

brought to the attention of the court.”’

3. Section 423 of the Internal Revenue Code of 1994,

26 U.S.C. 4231, provides ‘that;——___

‘There is hereby imposed :

(6) Cabarets. — A tax equivalent to 10 percent of

all amounts paid for admission, refreshment, service,

or merchandise, at any roof garden, **cabaret, or other

similar place furnishing a public performance for

profit, by or for any patron or guest who is entitled

to be present during any portion of such performance.

The tax impésed under this paragraph shall be re-

turned and paid by the person receiving sueh pay-

ments; except that if the person receiving such pay-

ments Is a concessionaire, the tax imposed under this

paragraph shall he paid by such concessionaire and

collected from him by the proprietor of the roof gar-

den cabaret, or other date dade No tax shall be

applicable under paragraph, (1)sor (2) on account of

an amount paid with respect to which tax is imposed

** <4

under this paragraph...

.

Section 4252(h) of said Act provides:

Ki Roof Garden, Cabaret or Other Similar Place.

~The term *troof garden, eabaret, or other similar

place,’ as used in this chapter, shall include any room

in any hotel, resturant, hall, oPetier public place

Where musie and dancing? privileges >), any other en-

_tertaimmnent, except instrumental or mechanical music

alone, are afforded the patrons in counection with the

serving or selling of food, refreshment, or merehan-,

**

lise.

statement of Case

The petitioner, German S. Lopez, on October 24, 1961,

had been conducting a restaurant and liquor business un-

der a lease arrangement since Mareh 1959 at- Clauson’s

Inn, Falmouth, Massachusetts. (R. 102)).

The petitioner was indieted on four counts on bribery

charges, in violation of Title 18, U.S.C. seetion 201,

Count 1 alleged that the defendant on October 21, 1961

bribed Roger S. Davis, a Revenue Agent in the United

States Internal Revenne Service by giving him $420 with

intent to induee said Davis to omit to do an act in viola-

tion of his lawful duty, to -wit:

‘to refrain from making an examination.of the. hooks

o +68 2 ° Y

and records relating to sales and receipts of the bar

1“R” refers to Record Appendix to Brief of Defendant-Appellant in

Circuit Court below. : ‘

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and lounge at Ciauson’s Inn, for the years 1959, 1960

and the first two quarters of the year 1961, from com

puting tax on said sales and receipts, and from = re-

porting same to the Internal Revenue Service.”

Counts 2,5 and 4 charged that petition€F On October 24,

162, did give as bribes to said Agent Davis respectively,

in Count 2, $200.00, in Count 3 a promise of $200.00, in

Count 4, a thing of value, to Witzean expense-paid week.

end accomodation for said Roger S. Davis, his wife and

family, at the Honeymoon Cottage, Clauson’s Imm, North

“almouth, Massachusetts—with intent to influence him

to aid in committing fraud on the United States, to wit:

to conceal from the Internal Revenue Service of the Trea-

ssury Department of the United States the sales and re-

ceipts and any cabaret tax due thereon of the bar and

lounge of Clauson’ s Inn, North 4almouth, Massachusetts,

for the vears 1959, 1960, 1961 and thereafter. (R. 2-5).

‘The govermment’s case at the trial with respeet to the

matter of cabaret tax attaching to the defendant’s busi-

Hess Operation proceeded on the basis that,daneing or sing-

ing in connection with the orehestra or juke box playing in

thé bar and lounge area of Clauson’s Inj would create a

cabaret tax on sales in this area Gurtag such entertain-@

ment. (R. 9-12).

On January 31, 1962, the jury returned a verdict of

Not Guilty_on Count 1 and a verdict of Guilty on Counts

2.2 and 4. (R.1).

On February 6, 1962, the petitioner filed a Motion for?

Jadgment for the defendant on Count 2, 3 and 4 of the

indictment, notwithstanding the jury’s Vardict. (R. 1). |

The petitioner relies on Federal Rules of Criminal Pro-

cedure, Rule 52(b), on Questions I and II, supra, for

right of review. thereof. ’

At the triatithe Court admitted a wire recording of a

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conversation of the petitioner with a government agent

at the private office of the petitioner on October 24, 1961,

and the testimony of the agent of the conversation, which

were objected to as in violation of the Fourth Amendment.

(R. 71-74). Later at the trial the petitioner raised the ques-

tign of ilegal entrapment at’the time of argument, and the

issue of entrapment was made a.part of the Trial Court's

charge. (R. 133, 134). It is submitted that if the evidence

ought to have been exeluded when presented, the défend-

ant’s rights thereto ought not to be precluded by the status

later arising under the defense of illegal’ entrapment.

The followingfacts are uncontrovertible on the record.

P “Agent Davis testified that on August 31, 1961 he

visited and observed the defendant’s operation at Clan-

‘son’s Inn, Falmouth, Massachusetts as a routine visit (R.

10, 35), twice the same day, and that prior thereto he had

no knowledge of the operation. On the seeond visit, in

the evening of the same day he testified he saw dancing

in the lounge in connection with the entertainment, that.

he did not see the defendant and left the premises.? (R. 10)

Agent Davis testified that between August 31, 1961

and October 21, 1961 he did not have the defendant’s busi-

ness at Clanson’s Inn under surveillance, and that during

this time he did not visit the premises, and did not receive

or make any report as ‘to the defendant’s business at the

Inn: that he had no knowledge of what took p ice in the

operation before October 21, 1961, excepting his alleged

observance on the evening of August 31, 1961. He further

testified that he came on his visit to the a on October 21,

2 In this connection, if there was dancing, thes no evidence that

the defendart knew of it. — ;

The defendant testified that on the evening of August 31, 1961 in

the course of his work he was in and out of the bar and lounge at the

Inn while Agent Davis was there. That he observed him there and

saw no dancing in the area. That there was a sign displayed of “No

Dencing™ (which was introduced in evidence ).

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1961 alone, without prearrangement, as a routine visit to

ascertain its activity with reference to cabaret tax lability

(R32, 33)

The record is barren of any activity in the defendant's

business operation at Clauson’s Inn which would create

sg tax lability at any time prior to October 16, 1961.8

The testimony of Agent Davis w as that at the meet

ma of the defendant with him on October 21, 1961, at Clau-

son's Tnn, the defendant offered him a bribe to avoid the

aggravation of an examination for cabaret tax liability for

the period prior to the then tax quarter ending October

Ol, 1961, on the stated situation that the defendant had

never filed a cabaret tax Feturn applicable to the business.

He further testified in this connection ‘*that he (the de-

fendant) didn’t wish to be bothered filing any past tax

returnsfor any past period going back to the time he was in

business or Started in business."? (R. 14) Agent Davis

evidence with respect to examination of the books of the

3 Agent Davis testified in cross-examination:

‘(The following question is read: ,

156] “Q. What was the basis of your stating to Mr. Lopez on

the night of October 21, 1961 that there would be a cabaret tax .

prior to October 17, 1961 in the figure that you now say you

mentioned?

A. Sir, October 17th didn’t enter into this.”

““XQ.. May I substitute the date of October 21, 1961 in the

previous question? And would you give me an answer.

A. The figures discussed on October 21st related to a year,

a year’s figure.”9

A. The basis of that, sir, was that I believe, the conversation

that night, he stated that he had this Trio and a piano player for

a period of time. Since this was October 21, | assumed it, was for

the period previous to October 21st. The basis of the calculation

was that, the figure he gave me for $160,000 gross sales—the

figure of $60,000 total sales for the bar and lounge, and his

estimate of one-half of that, or $30,000 sales at night, and an

estimate of tax would be $3,000.” (R. 41)

He further testified 1 in that connection “I did not tell him that

‘he owed any money.” (R. 43)

XQ. W hat aa ‘did you have to tell this man that he owed

money for a year without an examination of books, and without

business, at this meeting, was that he would examine the

same later when convenient. (R. 36-38)

His evidence was that he would return the following

Tuesday in connection with the preparing of a 720 Form

applicable to the quarter period ending October 31, 1961.

(R. 47, 51) It was manifest at the meeting that the books

did not carry ¢abaret tax data prior to October 16, 1961

and that the existence of cabaret tax liability related to

the entertainment deseribed which was collateral to the

books. (R. 1683. Davis testified that he was an accountant

(R. 41). ;

Agent Davis testified that the events of the meeting

on October 21, 1961 at the Inn, relating to the alleged bribe,

took place in the defendant’s office. That ‘the defendant

and Davis were alone at all times and there was no cor-

roborating witness. (R. 33)

Davis testified that at this meeting $200. was placed

on the acne in the office by a defendant and offered to-

any basis in fact that there was ; entertainment, including dancing,

for the year 1961?

A. I did not tell-him that he owed any money.

Agent Davis testified on cross-examination:

“Q. Is that your position now, that you did not tell him that

night that you were just using figures at random, without having

uny purpose?

A. I did not tel him he owed any money to the government

for the year 1961.

Q. Did you tell him he owed\any money _ that night for the

year 1960?

A. I told him—? No, sir.

Q. Did you tell him that night he o

any money for 1959?

A. No, sir. /

Q. Was there a basis then for a cabaret, tax prior to August

31, 1961?

A. I don’t know, sir.” (R. 43, 44) &

There is in evidence Defendant’s Exhibit B showing the ledger

entry made on October 16, 1961, which reads. “Oct. 16, 1961

Change in policy of entertainment. From this date Liquor Sales

subject to cabaret tax during entertainment hours. This tax is to

be deducted from beverage sales which are subject to 2 rent

charge.” (R. 120)

9

Davis by the defendant with the request-‘tto drop the

case"*; that this was repeated and that Davis refused each

offer with the statement that he had a job to do, ‘‘to

examine the books’’; that later at the meeting the defend-

ant ‘‘added some bills to it’’, which then made the amount _

$420., which was offered and refused. That the defendant

got angry and insisted. Then, Davis stated, ‘‘] told him

-© | asked him how much money was on the desk, and he

said $420°". About that time I picked the money up. It

was about 10 o’elock. I] put it in my pocket and left the

office. (R. 15) 4

Kmanuel Shuster, Regional Director of the United

Stetes Internal Revenue Inspection Service, testified that

the regulations of the Internal Revenue Service was that

if a bribe was offered, or if there were facts indicating that

a bribe might be offered the agent was to divert the sub-

ject, terminate the meeting and leave, (R. 101)

6. Agent Davis further testified on ecross-examination

as follows:

“Q. | refer to the transeript, page 29, lines 21 to

the end,

‘Q. Now coming back to the night of October

21, 1961 when you visited the premises there, in

vour conversation on the oceasion did you agree

on some basis with Mr. Lopez to fill out Form

720, the cabaret tax, in connection with Mr.

Lopez’ business at Clauson’s Inn in Falmouth?

_ A. I did not agree to fill out forms.

The Court: The way you gave thepanswer, it

would not appear on the record, because you gave

* The defendant’s testimony was that he had given the agent $420

to do what was required on his own time, not the government’s, for

cabaret tax returns on the business (R. 111, 112).

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10

it with an infonation. Will you please explain

what you mean?

Q. Will you follow his Honor’s suggestion?

The Court: Read the question and the answer

please; Mr. Duffy.

(Question and answer were read.)

The Witness: Your Honor, I didn’t agree to

fill out the form. That is not my job. What 1

vgreed to was to return to the premises so that

he could file a return, if due. (Italies supplied).

). When vou made that answer was the answer

true?

A. Yes, sir.

(). [s it true now?

A. Yes, sir.’’ (R. 51)

7. The Revenue Inspection Service organized a plan to

entrap the defendant by arranging for Davis to go to

Clauson’s Inn on October 24, 1961 and meet with the

defendant at the defendant's private office. (R. 16, 17)

Richard A. Callahan of the said Service testified that on

October 24, 1961 he placed a minifon recording on the

person of Agent Davis, which was concealed, and also a

Schmidt battery operated radio transmitter, with instrue-

tions to Agent Davis as to what he should do, when he

went to Clauson’s Inn in Falmouth (R. 66, 67) The evi-

dence was that the Sehmidt did not work. (R. 67)

Callahan testified x

**Q. State what those instructions were. ;

A. I instrueted Agent Davis to try to steer the

conversation hack to the meeting of October 21 when

he allegedly received $420, and I gave him certain

instructions as to how to lead into that. :

11 \ .

1 told him that he should explain, go into a mathe-

matical explanation as to what he thought was due’

tax-wise, and | also gave him technical instructions

in that he should steer Mr. Lopez i a quiet place,

possibly his office, not to rustle papers and to sit as

close to Mr. Lopez as possible in the course of the

conversation.’’ (R. 67)

The witness Callahan described the Minifon reeording

device and as to how it was attached to the person of Agent

Davis, and its operation. (R. 67)

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Witness Callahan further testified.”’

“Q. As part of your instructions, did you say to

him, ‘Get the conversation back to the 21st. Get a

genera] discussion as to what had oceurred on the

21st.’

A. Yes, sir, 1 did.

(). Did I understand you also to say, ‘Give him

some figures, tell him what you think is owed.’

A. Yes, sir. His opinion.

Q. His opinion? ©

A. Yes, sir.

(). Now at that time did you have any facts, as far

ax you were concerned, as to whether anything was

owed at all, any basis in fact whatsoever?

A. No, sir.’’ (R. 94, 95)

8. Agent Davis testified that in coneert with Agents

from United States Revenue Inspection Service he came

to Clauson’s Inn on October 24, 1961, that one of the

Agents entered the Inn, but not in his company, and other

agents waited outside of the Inn. The agents who-waited

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outside had instruments to be operated so as to record

sound communications from the Sehmidt, if it worked.

Davis entered the private office of the defendant upon

his request to the defendant pursuant to instructions.

The Minifon recording of what oceurred in the office was

introdkeed and played to the jury over the objection of

the defendant, and marked as Government’s Exhibit 6

(R. 75)

The defendant contends that the Minifon recording

(Exhibit 6) establishes the following facts.

(1) Pursuant to plan Agent Davis by his request ob-

tained entrance to the private office of the defendant on

October 24, 1961.

2) Agent Davis introduced **this 720, exeise form we

were talking about*’, and the defendant immediately ex-

hibited-his mind by a verbai act: ‘* 1—never did file cabaret

tax. L never thought there was need of it."’ This exhibited

the mind of an innocent man with respect to the subjeet

of cabaret taxes of the business, and his relation to the

occurrences of the meeting of October 21, 1961.

(3) Nevertheless the agent pursued the plan of entrap-

ment. The followi ing then oceurred,

‘Davis: I had to do a little thinking about it. I

want to give you a couple of figures now. I mean it

took me a while.’’ (R. 81)

A celloquy ensued on the subject of confidences between

the defendant and Agent Davis, and the Agent pursued

the matter of figures as follows:

' Cd

‘Davis: O.K. 1 am going to put'down some figures

here. Your gross was about, gross sales about 160,000.

Lopez: About 160,000.

Davis: Now 40% of that is—

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Lopez: 1 should say about 30, about 35, conser-

vatively, |

, Davis: Well, we'll say about $50,000 is bar sales.

Lopez: Ya.

Davis: Now) maybe.roughly half of that is at

night. ;

Lopez: Well, | should say about half of that should

he at night, |

sut L should say perhaps, you see, my dining room

ina big seller and the bar, and my dining room sells

wud the the bar.

Davis: Ya, 1] understand that.’

Lopez: This is the greatest. You see a very busy

night at the bar, the bar itself may sell $150, $175, a

good steady night in the lounge itself,

Davis: Well, | kind of figure that. based on what

I’ve seen, the amount of cabaret sales would be for

a vear.’’ (R.S4) te

The defendant contends that. the statement of Agent

Davis, ** Well, | kind of figure that based on what I’ve seen,

the amount of cabaret sales would be for a year’’ Was

completely faise without any basis in fact.

The colloquy continues :

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“Davis: No Ld say $20,000, conservatively 25 would

he cabaret sales beeause—

Lopez: No.

Davis: Well,... the band and everything. ~~, @

Lopez: Most of the business .. . at night when

people actually get uy and dance I have not been

allowed to stop it. Which would be Friday au Satur-

day nights, The other nights we don’t have anything

anyway. The other nights is a mimor thing that T can

always control, but Fridays and Saturday nights in

14

the summer months, when I’m very very busy, 1 often

negect to ‘get up there and do it.”’ (Italies supplied)

At this point on the basis of the defendant's statement

there was no intentionally allowable dancing and thus no

cabaret tax, in the absence of special facts.. This was

clearly the mind -of the defendant as expressed at the

ouset of the meeting. :

There then ensued the following with reference to the

acts of Agent Davis indicating to the defendant that he

Was not using the quoted figures

‘Davis: Well, I’m not...

Lopez: That’s right.

“ Davis: I’m not using this.’ (R. 84, 85)

This statement of the Agent was an obvious fraud. The

only time dancing occurred on the evidence was as stated

by the defendant; and if that were excluded from consid-

eration there would be no basis whatsoever to claim a tax.

This fraud continues ‘*You know just between you and I,

I would say about $20,000 it texable sales, You say your

business isn’t that much. Now, took, yeu went into busi-

ness in 1959. In 1959 the tax was 20%."* (R. 54)

The colloquy continues: (R. 84)

‘‘Lopez: I only operated about six monthe under

the 20%.

Davis: Well, that was 1959 and half of 1960. a

Lopéz: Ya. :

Davis: Between 1959, out of the $20,000 could be

maybe— :

Lopez: Make it 5,000...

Davis: Well, I’m trying to figure. You were open

from March on. The big trade b is in the summer.

Lopez: Ya.

1)

Davis: Maybe 15,000, At 2007 that would be

$5,000.00 for 1959. ‘In 1960, 5 months at 206: the

rest of this is 107, do you remember that?

Lopez: Ya....

Davis: Well,... about 20. And 8 of this was under

the 20°03 8,000 and 12 was under the 107. ° So,

$8,060.00 at 20°C would be 4,000. 12,000 at 10°7 would

be 1,200. In 1961, well for half the year... 16,0Q0;

cabaret $3,000.00. No— .

Lopez: You’re very high Actually, | mean, you're

very high.

Davis: Let’s see what we have here ‘anyway.

(Counting) 2, 2, 4,8, $11,200. Well, let’s say... just

for argument purposes -- Between 9 and 10,000 dol-

lars; that. we know is — You hayn't kept any records,

you see, Now, | mean, I don’t know what .. . ex-

actly what your records show. How are your books? -

Do your books show any balance sheets?

Lopez: Tt shows just the |

Davis: Well let’s go back to the $10,000.00. The

penalty for not filing any returns is 20%. $12,000

ack taxes, conservatively, ... plus 6% interest, which

will go on to here will Id say run over $13,000.00 New

I don’t wont ty qet greedy or anything, but, well, what

would you be gaming .. . (R.85) (Italies supplied)

Lopez: Ihave got a couple of hundred odd dollars

for vou right. now. Listen— 7

Davis: Ya, but I mean, well— Ge

Lopez: J have ...anoney right now.° :

Davis: | know but— °

Lopez: I'll tell you I'd ike to pay as we go along

and I'd like you to take me into your confidence. As

we go along a couple of hundred every time you drop

in. Id like to keep it that way. :

Davis: Well,

16

Lopez: Don’t drop in too often..

Davis: How much is here?

Lopez: Two hundred, keep it.’’ (R. 86)

The foregoing statements of Agent Davis were grotes-

quely fraudulent without any basis in fact. His statements

became so reckless that he was stating So, 8,000 at 20%

would be $4,000." and ended up with a mythical penalty.

The statemént following the penalty, ‘‘now I don’t want

to get “apes or anything but, well, what would you be

gaining **:—is the request for the bribe. :;

The iiloade contends that Agent Davis fabricated a

false and fictitious claim in the’mind of the defendant that

a United States eabaret tax was due on his business, with-

out any basis in faet and grossly inordinate with respect

to the circumstances of the defendant, and that the Agent

induecéd, provoked and in effect requested the defendant

to bribe him to avoid the so-called claim; that the facts

were further aggravated by the perilous position of, the

Agent Davis, who had received $420. from the defendant on

October 21, 1961, allegedly as a bribe in connection with

such a tax, in the situation where the Agent was alone with

the defendant and without a eérroborating witness and

in any event in violation of regulations in his Department.

Reasons for Granting the Writ -

I. /t is apparent on the Record that the issue of illegal

entrapment was duly raised at the trial and that there was

legal entrapment of the petitioner as to the offenses al-

leged in Counts 2,3 and 4 of the indictment as a matter of

lawgand the petitioner was entitled to a verdict of acquittal

thereon,

Appellant contends that the uncontradicted facts in this

case establish that he was entrapped as a matter .of law

and that he was entitled to a verdict of not guilty.

17

1. The much-cited case of Sorrells v. United States, 287

U.S. 435 is the foundation for the applicable law. Under

this case entrapment is raised: by the plea of not guilty.

The governing principles are stated in Sorrells at pages

441, 442: ;

‘Tt is well settled that the fact that officers or em-

ployees of the government merely afford opportuni-

ties or facilities for the commission of the offense

does not defeat the prosecution. Artifice and strata-

gem may be employed to catch those engaged in erimi-

nal enterprises. [Citing cases.] The appropriate object

of this permitted activity, frequently essential to the

enforcement of the law, is to reveal the ‘criminal de-

A different question is presented when the

° sign * * all

criminal design originates with the officials of the gov-

ernment, and they implant in the mind of an innocent

person the disposition to commit the alleged offense

and induce its Commission in order that they may

prosecute.”’ |

‘

The Court went on to cite Butts v. United States, 8 Cir,.

1921, 273 F. 35, 38, 18 A.L.R. 143, to the effect that it is

unconscionable and contrary to public policy to punish a

man for a crime he evidently would never have committed

were he not inspired, incited, and persuaded by officials of

the law. The Court decided that under such cireumstanees

no ¢rime was committed, for Congress could not have in-

tended that an act within the literal meaning of a criminal

statute would be a. crime if incited by those whose pur-

pose it is to prevent crime? Traps and decoys are some-

times permitted. ‘‘The predisposition and criminal de-

signs of the defendant are relevant.’’ 287 U.S. at page 451,

93 S.Ct. at page 216.

= a

Sherman v. United States, 356 U.S. 369, held that the

undisputed testimony established entrapment as a matter

of law. On the record, a narcotics user under treatment for

the addiction, as to whom there was no evidence that he was

then in fhe trade was induced to make three sales of nar-

coties by a gov ernment agent. Except°for a record of two

convictions nine and five years previously; there was no

evidence that petitioner’ himself was in the trade or that

hé showed a ‘tready complaisance”’ to the informer’s re-

quest. -

The court adhered to the majority opinion in Sorrells v

United States, supra. and declined to reassess the doctrine

of entrapment according to the principles announced in

the minority opinion which concurred in the result.

Sherman vy. United States, sapra, .affirms, as did the

Sorrells case, that entrapment occurs only when the crimi-

nal conduct ‘‘was the product of the creative activity -of

law-enforcement officials’’. It held further, ‘‘to determine

whether entrapment has been established, a line must be

drawn between the trap for the unwary imnocent, and the

trap for the unwary criminal.”’

The Court further said, ‘The principles by which the °

courts are to make this determination were outlined in

Sorrells. On the one hand, at trial the aceused may ex-

amine the conduct of the government agent; and on the

other hand, the accused will be subjected to an ‘appropri-

ate and searching inquiry into his own _—— and pre-

disposition’ as bearing on his claim of innocence.’

2. The appeal to the Cirenit. Court below involved the

defence of .entrapment and presented to the Court the

issue of whether the criminal intent proceeded from gov-

ernment agents or whether these agents simply afforded

opportunities to one already disposed to the alleged erimi-

nality. United States of America v. Klosterman, 248 F.2d

191, 192, Third Cireuit, 1957. . :

BO -s

qe"

7 19

+

° «

Klosterman decided that the test to be applied under the

principles governing illegal entrapment is, was the de-

fendant aman otherwise innocent who would not have eom-

mitted the crime but for official solicitation, or was he

predisposed to pursue a criminal design which he had al

ready conceived? (Italies supplied.)

- On the facts of that case, Deeney, an Internal Revenue

Agent approached a fellow agent, King, with respect to

a tax-payer’s return then under investigation for an un-

vusual time, with the statement that a friend of his who

Was angissociate of the’taxpayer, reported that the taxpayer

‘would pay ten to twenty thousand dollars to settle the

ease. On the record, Deeney abandoned the orizir al’ plan,

and later was relentlessly pursued by the fellow. agent

under orders of their superiors to carry out the plan to

bribe until the defendant yielded and agree’ to arrange

for a meeting of the other agent with taxpayer's associate.

The Court applied the above-said test as to Deeney and

held on the record, he was entrapped to commit bribery.

The Court stated: ‘*The inordinate amount of per

suasion of Deeney by King indicates two elements in this.

case. It-elearly discloses that Deeney was sineere in hi-

attempt to abandon his original plan. It shows also that

the criminal design and intént for the commission of the

actual bribery originated not with him but rather with

4 *

the government agents who engineered the persuasion and

**

solicitation.""

In the instant case it is impossible logically to ststain

. on the evidence that the defendant on any basis what.

soever Was pursuing a criminal design ‘‘which he had

already conceived’’, with relation to the events of Oetober

24, 1942 at the meeting of Agent Davis and the defendant

at Clauson’s Inn. The meeting was organized and ear-

ried out by the government agents te entrap the defend-

ant. (Statement, Par. 7, spura) The genesis of th® meet

°

é

20

ing of October 24, 1961 and of the*events that occurred at

the meeting originated with the government agents after

October 21, 1961. y

~QOn the: reeord of this case at the trial there was no

dispute that the defendant gave and agent Davis received

» four hundred twenty dollars on’ October 21, 1961. The is-

sue Was whether it was given and received as a bribe, and

the jury decided that it was not a bribe under the charge.

The evidence introduced by the government as to the

events occurring, at the meeting of the defendant and

the government agent Davis on Ovctober 21, 1961 was per-

“tinent to establish a bribe on October 21, 1961. It neces-

sarily related to a criminal disposition to comnfit bribery

on Octobera2l, 1961, if the evidence were true. It could

not by its very nature sustain that he was disposed to

pursue a criminal design to commit bribery on October 24,

1961 **which he had already conceived"’, since it is mani-

fest that it was impossible for him to have had anything

in his mind on an enterprise as to which he had no know!-

edge whatsoever before the event.*

Further, the record is positive as to the agreement of

* agent Davis made on October 21, 1961 with the defendant,

on the testimony of agent Davis, in response to the trial

eourt’s inquiry. ‘*What I agreed to was to return to the

premises so that he (the defendant) could file a return

if due’’. (Emphasis supplied.) (Testimony ef agent Davis,

statement, supra, par. 6.).

At the meeting of October 24, 1961 (the facts of which

are established on the minafon, recording, (Statement

supra, par. 8.) the eriminal design ‘as to the offenses

charged in counts 2, 3 and 4 manifestly originated with

the government agent/Davis with the express: purpose of

inducing the defendant to commit the crime in order “to

prosecute him, and the government, agent Davis induced,

“

pA!

provoked and solicited the defendant to commit the of-

fenses, °

This position is clearly shown on the recording. (See

Statement supra, par. 8.) :

(1) At the outset of the meeting of October 24, 1961,

ils shown on the recording, ‘the defendant dis-

closed an innocent mind: ‘*l—never~ did file

cabaret tax, T never thought there Was need of

)

it’. (Statement, supra, Par. 8. =2,) (This verbal

act frustrated immediately the ‘avowed plan of

the agents to relate the conversation back to the

meeting of October 21, 1961, (Statement, supra,

Par. i:)

(2) Nevertheless agent Davis pursuedsthe plan. of

entrapment by false statements of the existence

> of éxcise tax obligations which culminated in the

agent’s solicitation of the bribe: “Now I don’t

want to get greedy or anything, but, well, but

what would you be gaining’’——the request for the

“bribe. (Statement, supra, Par. 8.)

United States v. Klosterman, (Supra at pp 195-196),

in its opinion with respeet to the co-defendant Stafford,

demonstrates the principles under the law of entrapment,

whereunder the defendant here would be entitled as a

‘matter of law to the status, en the record, of an innocent

man at the outsgt of the meeting of October 24, 1961) and

to the rule there stated ‘*We de not think that the degree

of persuasion is significant where the first approach is

made by the agent of the law to an apparently innocent

man’.

2

22

4. Accardi v. United States held 257 F.2d 168 that

‘In rebutting the defense of entrapment, primary.

emphasis is on the defendant’s predisposition to com-

mit the crime, but a court must also earefully weigh

the conduct of the government agents, which must

not fall below reasonable standards of the proper use

of government power in law enforeement.”’ :

At page 172, the Court said:

‘*. . . The majority gpinion in Sherman reaffirms

the emphasis on the defendant’s intention of readiness

to*commit the crime, as basic in rebutting entrapment ;

but the Court by no means downgrades the duty of

scrutinizing closely the conduct of the government

agents.®

io “ape . :

ootnote 5. read in part:

‘‘In spite of .the sharp differences between the two:

opinions’ as to the crucial question in entrapment, the

conceptual basis for the defens id the role of the

court, the language of the waanyed the court, shows

‘that they attach almost as much importance as the

minority to the conduct of the government. agents.

There is scarcely a decibel’s difference in their expres.

sions of shock and outrage at the agents’ methods.

‘The function of law enforcement is the prevention

** * not * * * the manufacturing of cfime.’

It is submitted that when Agent Davis left Clauson’s

Inn on Saturday night, October 21, 1961 with $420 in his

pocket which he received from the defendant, he was in a

predicament. Obviously, he was in violation of regulations

ae

of his Department in any event. He had been attached to

the Internal Revenue Service for two years and was an ac-

countant. A policeman investigating a matter as routine

would consider 4 unthinkable, to take a bribe without a“

corroborating witness, and then attempt to explain it to

a superior. On the facts in this case he testified that he

first talked with a fellow agent after leaving the Inn on

the night of October 21, 1961, and then later his group

chief at the instance of the fellow agent talked with Agent

Davis.

There was implicit in the concerted plan of the revenue

inspection service agents for entrapping the defendant in

his private office the relief of the perilous status of Agent

Davis. The avowed plan according to the revenue inspec-

tion service agents was to relate back by statements, caba-

ret tax involvement and alleged bribery, relating to the

meeting of October 21y 1961. This immediately failed on

the statement of the defendant at the outset of the meeting

of October 24, 1961 that he never filed a cabaret tax since

he thought he never needed to. In this status the proce-

dure adopted by Agent Davis in fabricating in the mind

of the defendant?as if true, a false and fictitious claim of

“a government cabaret tax, with outrageously exorbitant

figures, ending with a thrust for a bribe in the words. ‘‘]

don’t want/to be greedy”? is highly reprehensible. There

is inherent in it the aspect of gestapo or inquisition in

attacking the human mind by lies and to involve the person

attacked in crime. It is submitted that this cannot be

countenanced, as a matter of law; certainly in conjunetion

with the other established facts. :

ro

24

WN. Where the Trial Judge, without. request, gave in-

structions to the jury, which as a matter of law were

plainly misleading and erroneous on the issue of illegal

entrapment, and prejudicial to the defendant, on appeal the

error is open to review for appropriate remedy, although

no exception was taken by the defendant. ne

It is submitted that this question presents a matter

open to review under Federal Rules of Criminai Proee-

dure 52(b) as plain error affecting substantial rights,

viewed with respect to principles giving the right of re-

view of a Judge’s Charge undertaken without request,

which manifestly misleads the jury by the instructions

given on an essential issue, as decided in Miller vy. United

States, 120 Fed. 2nd, 968.

In the Miller case the Court stated the following:

‘*In a criminal case, it is the duty of a court to in-

e struct on all essential questions of law, whether re-

quested or not. Kinard v, United States, 68 App. DC

250, 96 Fed. 2nd. 522, 523; Kreiner v. United States,

2 Cir. 11 Fed. 2nd, 722, 731. Some courts have held

that failure to instruct on the consideration to be ac-

corded to character testimony in the absence of a re-

quest for such an instruction is not reversible error.

Kinard v. United States, supra. It may be conceded

that the court was not bound to instruct on character

_ testimony in the absence of a request for such an in-

° struction, but when it did proceed to instruct the jury

thereon, it was required to give a correct instruction.

It could not mislead the jury by an instruction which

was erroneous. Misleading the jury in regard to the

purpose for which they Should consider character evi-

Si

dence adversely affeeted the substantial right® of the

defendants.”

. ° o& °

At the trial in the instant case the Court charged the jury

on the question of entrapment as follows:

‘No there are some other matters to which it is

important that 1 should call to your attention, and

one of them is a defense which was raised in argument

by Mr. Davis, the lawyer, speaking on behalf of Mr.

Lopez. It was his suggestion to you that in this case

the defendant should not be convicted because he was

entrapped. If | understood Mr. Davis’ argument. to

you correctly, he suggested to You that Roger Davis,

the Agent, profiosed that, he, Roger Davis, and his

wife, might have the benefit of a free weekend or free

golfing experience at Clauson’s Inn, and that this was

a method of soliciting a bribe and entrapping the de-

fendant. :

Mr. Davis, the lawyer, also suggested to you that

in making these computations so-called of a tax which

might be due on aceount of a eabaret, if there were

one, or on account of daneing, if there were, Agent

Davis obviously, in Mr. Lawyer Davis’ view prepared

some inflated figures and was using this as a kind of

bait for inducement to a bribe.

Now the law with respect to entrapment‘is this: if

a government agent by improper means or over-bear-

ing persuasion or wrongful conduct induces a person

of ordinary firmness to commit a crime which he would

not otherwise commit, then under those circumstances

the defendant is to be acquitted, not beeause he did not

do something wrongful but because he was induced

to do a wrongful act which he would not otherwise

have done.

26,

nee Now needless to say in all types of law enforcement,

particularly with respect to matters involving certain

types of regulatory statutes, it is often difficult for

the government to get evidence, and government

agents may properly, and without violating the law,

or their duty, take such steps as make it possible to

procure evidence even though such steps Mvolve their

own participation, provided that their participation is

not a deliberate temptation to men of ordinary firm-

ness, provided that they do not cause a crime to be

committed by someone who does not hav e a criminal

disposition to commit that crime.

The burden of proof with respect to entrapment is

on the defendant. And you are to ask yourself whether—

in fact on the evidence you heard you are persuaded

by the preponderance of that evidence that Agent

Davis, as it were, created the crime and the temptation,

and he, Agent Davis, was the instigator and-author

of a crime that would never under any circumstances

have taken place, had he not used unfair means.’’

It is to be noted that there was no issue as‘to how an

ordinary person would have reacted or done in —

of the defendant. The issue was whether the defendant was

entrapped, not whether an ordinary person would have

been. .

United States v. Landry, 257 Fed. 2d 425.

Further the burden of proof must be allocated. The

burden is upon the defendant to produce evidence that

governm:nt agents induced him to commit the crime, and

when evidence has been brought out by the defendant the

government must prove beyond a reasenable doubt that

inducement was not the cause or creator of the crime.

United States v. Landry, supra, at 428, 429.

e

es

=i

&

&

Though the esgiblished faets on the record require a find-

ing, as a matter of law, that illegal entrapment occurred,

it is submitted that in any event the Court’s charge was

erroneous and misleading on the law of entrapment, and

prejudicial to the Defendant.

Hl. Jt as a vrolation of the Petitioner’s rights under

the Fourth Amendment, and prejudicial error, where a

government agent obtained ventry by misrepresentation

into the private office of the petitioner, for the Trial Court

to permit to be played to the jury a wire recording of con-

versation of the government agent with the petitioner,

which the agent surreptitiously obtained while in the peti.

tioner’s office, and to admit the testimony of the agent of

the conversation where objection was duly made on said

coustitutional qrounds and the evidence constitutes the

government's case as to Counts 2, 3 and’ 4 of the indict-

ment,

After hearing, with evidence taken, of the Defendant's

Motion and Petition to Suppress Evidenee (R. 138, 138,

164, 165) the Court denied the Motion to Suppress the

minafon recording, and the defendant’s objection was. re-

newed at the trial (R. 71 and 72) ou the grounds that its

admission and the admission of the testimony of Agent

Davis of the recorded: conversation was in violation of

the Fourth Amendment. The grounds of the defendant's

objection ard the facts established relating thereto were

as follows:

1. That the private office of the defendant at Clau-

son's Inn was a constitutionally protected area. @

2. ‘*That the government agent Davis on October 24,

1961 solicited and obtained permission to enter

into the defendant’s private office, where the de-

31.)

a

fendant condueted his business affairs in private

....’’ (Defendant’s position, R. 137).

Agent Davis testified: That on October 24, 1961

he stated to the defendant that he desired to go

with the defendant into his private office, and went

there pursuant to said request (R. 140).

That Agent Davis ‘obtained this permission by

misrepresentation of the status of his entry’? (posi-

tion of defendant R. 137), and ‘‘that on October

21, 1961—that the said agent had come to the said

premises and had agreed with the defendant to

‘return at a later date, namely, either Monday or

Tuesday, which would be October 23 or October 24,

1961 on his own time to prepare 720 Forms for

cabaret taxes actually due the government. by the

defendant—*’ (position of defendant R. 138). ‘** That

the acts and -cireumstances by which the agent

gained entry into the private office on October 24.

1961 as it related to the arrangement agreed upon

for his coming, were in effect a misrepresentation’’

(position of defendant R. “138).

These positions taken by the lefendant were es-

tablished as fact on the evideace,

(a) Agent Davis unequivocally stated in his testi-

mony upon inquiry by the Court calling for pre-

cise statement: ‘*What I agreed to was to return

to the premises so that he (the defendant).could

file a return, if due.’’ (Statement supra #5, Record

(b) Reference is further made to the Statement,

supra, 27 and #8, with reeord citations establishing

that Agent Davis entered the Uefendant's private

office on October 24, 1961 pursuant to the planned

operation of government agents for entrapment of

the petitioner. It is submitted that the foregoing

sane

a

acts and circumstances set out in the Statement

established entry by the agent into the private of-

fice by misrepresentation.

At the conclusion.of the hearing on the Motion to Sup-

press the Trial Court stated the issue and the basis of his

denial of the Motion as follows: .

“The Court: Well, it is perfectly clear that your

theory is that the individul was admitted under a

deceptive statement and, therefore, everything that

was taken within the inner office was taken as a result

of admission by deception.

Mr. Davis: That is right, sir.

The Court: So it applies to notes on a piece of

o

‘paper as well as notations upon a wire recorder.

Mr. Davis: Well, if the paper—there might be a

different state of facts on a piece of paper. If it was

open and obvious that that was being done, that would

be one thing, and I think prohkably distinguishable

— from an electronie device, which is secret.

The Court: Well, |] understand the argument you,

make. It seems to me a distinetion without a differ-

ence, The petition and motion are denied.’’

as

The Trial Court reiterated its position on this matter

in its Charge to the Jury (R. 136).

It is submitted that the Court’s statement that the ob-

taining of the minafon, Government Exhibit 6, was no dif-

ferent than if the agent took private notes after entrance

into the private office (R. 136, 164, 165), is not sound. The

minafon is no different than if another agent were in the

office by stealth with the powers of a minafon.

However, the real ground of objection is that indight of

the Silrerman ease, all evidence of the conversation of the

‘|

agent and the defendant of the meeting of Oetober 24, 1961

in the private office, whether in the form of testimony of

the agent or as recorded in the minafon, ought to be ex-

cluded as illegally obtained, in violation of the Fourth

Amendment since the entrance to the office was gained

-by misrepresentation. Defendant’s counsel in renewing his

objgction to the admission of this evidence at the trial

stated this as his position. (R. 71)

That the minafon recording and the testimony of Agent

Davis of what occurred at the meeting at Clauson’s Inn on

October 24,. 196F constituted the governmen<’s ‘case on

Counts 2, 3 and 4 cannot be disputed. If the said recorded

conversation and the testimony thereof of Agent Davis

were excluded, the government's case on Counts 2, 3, and

+ would fail for lack of proaf.

Whether’ ‘the seciiving“and taking out the evidence from

the private office of the Defendant should be aecconiplished

by minafon on the person of Agent Davis, or transmission

by Schmidt from his person, or by his personal faculties

as such, each would be illegally obtained if entrance was

gained: by misrepresentation. In this respect a private

office is on the.same basis as a home. In effeet it is a

physical imvasion of a constitutionally protected place _

‘as in Silverman v. United-States, 365 U.S. .505, which dis-

tinguished and declined to reconsider the earlier cases of

Olmstead +. United States, 277 U.S. 438, (oldman vy. United

States, 116 U.S. 129, On Lee vw U nited States, 343 U.S. 747.

In;-the Silverman ease at the trial in the Federal District

Court in which petitioners were convicted of gambling

offensescunder the District of Columbia Code, there was

admitted in evidence over their objection testimony of

police officers describing incriminating conversations en--

gaged in by petitioners at their aiieged gambling estab-

lishment, which the officers had overheard by means of an

electronie listening device pushed through the party wall

¢ Z &

: 2 3

of an adjoining house until it touched heating duets in-the

horse occupied by the petitioners. The Supreme Court

held that such testimony should not have been admitted

in evidence and the convictions

violation of the Fourth

nust be set aside as in

the record of the casé, the eavesdropping Was accomptished

hy means of a unauthorized physical penetration into. the

premises occupied by petitioners, -wttiech violated their

rights under the Fourth Amendment. Goldman v. United

States, 316 US. 129, and On Lee v. United States, 343 U.S.

747, distinguished.

In the On Lee case the agent, not an officer oreemployee

of the United States Government, was a ‘stool pigeon”?

who used an electronic device at quarters in a Chinese

laundry open to the publie, to tap the conversation to a

United States agent outside the premises. 7

~ In Goldman v. United States, 316 U.S. 129, 62 S. Ct.

993, 86 L.Ed. 1522, it was held that the action of federal

agents in placing a detectaphone on the outer wall of the

defendant's hotel room and thereby overhearing conversa-

tions held within the room, did not violate the Fourth

Amendment. There the agents had earlier compitted a

trespass in order to install a listening device within the

room itself. Since the deviee failed to work the Court ex- .

pressly reserved decision as to the effect on the search anid

seizure question of a trespass in that situation.

In the Silverman ease the Court said as follows:

‘*But in both Goldman and On Lee the Court took

pains explicitly to point out that the eavesdropping

had not been accomplished by means of an ?unan

thorized) physicab encroachment within. a= constitu-

tionally protected area. In Goldman there had in faet

heen a prior physical entry into the petitioner’s office

lendment. It was held that on

32

for the purpose of installing a different listening ap-

paratus, which had turned out to be ineffective. The

Court emphasized that this earlier physical trespass

had been of no relevant assistance in the later use of

the detectaphone in the adjoining office. 316 U.S. at

1384:185. And in Ow Lee, as the Court said, *. . . no

trespass was committed.” The agent went into the

petitioner's place of business ‘with the consent, if not

by the implied invitation, of the petitioner.’ 343 U.S.

at 7ol-7o2. .

The absence of a physical invasion of the petition-

ers’ premises was also a vital factor in the Court's

decision in Olmstead v. United States, 277 U.S. 438.

In holding that the wiretapping there did not violate

the Fourth Amendment, the Court noted that *(t)he:

insertions were made without trespass upon any prop-

erty of the defendants. They were made in the base-

ment of the large office building. The taps from house

lines were made in the streets near the houses.’ 277

U.S., at 457. ‘There was no entry of the houses or

the houses or offices of the defendants." 277 U.S., at

464. Relying upon these circumstances, the °Court

reasoned that ‘(t)he intervening wires are not part of

(the defendant's) house or office any more than are

the highways along which. they are stretched.’ 277

U.S.. at 465. Here, by contrast, the olticers overheard

the petitioners’ conversations only by usurping part

of the petitioners’ house or office—a heating system

which was an integral part of the premises oceupied

by the petitioners, a usurpation that was effected with.

out their knowledge and without their consent. In

these circumstances we need not pause to consider

whether or not there was a technical trespass under

the local property law relating to-party walls. Inherent

Fourth Amendment rights are not inevitably measur-

o

a

able in terms of ancient niceties of tort or real prop-

erty law. See Jones v, United States, 362 U.S. 257, 266;

On Lee v. United States, supra, at 752; Hester v.

United States, YO U.S. 57: Knited States &. Setters,

42 US. 48, 41; WeDonald v. United States, 335 ULS.

/

4

451, 454.

The Fourth Amendment, and the personal rights

which it seeures, have a long history. At the very

_ core stands the right of a man to retreat into his own

home and there be. free from unreasonable govern

mental intrusion. Entick v. Carrington, 19 Howell's

State Trials 1029, 1066; Boyd v. United States. 116

U.S. 616, 626-630. This Court has never held that a

federal officer may without warrant and without:con-

sent physically entrench into a man’s office or home,

there ¢ecretly observe or listen, and relate at the man's

subsequent eriininal trial what-was seen or heard.

A distinction between the detectaphone employed

in Goldman and the spike mike titilized here seemed .

to the Court of Appeals too fine a one to draw. The

court was ‘unwilling to believe that the respective

rights are to be measured in fractions of inches’, But

decision here does not turn upon the technicality of a

trespass upon a party wall as a matter of local law.

It ix based upon the reality of an actua? int@usion -

into a constitutionally protected area, What the Court

said long ago bears repeating now: ‘It may be that it

ix the obnoxious thing in its mildest and least ye-

pulsive form; but illegitimate and aneonstitutional ~

practices get ‘their first footing in that way, namely,

by silent approaches and slight déviations from lega!

modes of procedure.” Boyd’ vy. United States, 116

U.S. 616, 685. We find no occasion to re-examine Gold-

man here, but we decline to go beyond it, by even a

fraction of an inch.**

a

; Bey

34 :

See strong concurring opinion by Mr. Justice Douglas in

Silverman v. United States, supra, showing the basie phi

osophy and rationale underlying the decision. Also for this

purpose see the strong dissenting opinion in the case of

On Lee vy, United States supra.

The Defendant argues that the premise in the above

cases Was physical penetration, and distinctions pertaining

thereto. e

a

But here? there was physical invasion into the premises

hy misrepresentation, This would not differ from entrance

by stealthwithout permission.

As an added reason for granting the Writ under Ques.”

tion IIL your petitioner replies to the brief of the Govern-

ment filed in the Cireuit Court below which ealls upon the

defendant to distinguish Todisco v. United States, 298

F.2d, 208, cert. den. 368 U.S. 984-and United States v.

Kabot, 295 F.2d, 848, cert. den, 369 U:S. 803. (Govern-

ment’s brief, page 12, last paragraph.)

In the Todisco cage a lawyer was indicted and found

guilty of offering a bribe 'to settle a tax case of a client.

There were a ‘number of conversations {aped ‘and trans-

mitted to recipients outside by a device on the government

agent from the office of the defendant, all relating to con- .

versations of a proposed bribe of $500.00. It was held not

a violation of the defendant’s rights under the Fourth

Amendmen’. — i ee oe

It seems obvious that the agent in the instant ease on the

facts was in the office of the defendant by misrepresenta-

tion, as distifiguished from the Todisco ease embracing in-

vited_vists by the defendant in that case relevant to the ob-

ject of the bribe. Manifestly in Todisco the evidence sup-

ported that-the defendant was pursuing a criminal design

which he had already coticeived, whereas in the instant

‘ s

‘ase this could not be foundcto be so.

by %&

: wd

be

The entrenching of a government agent in the office of the

defendant, a constitutionally protected area, by nfisrepre-

sentation and for the purpose of illegal entrapment seems

clearly an invasion of privacy of the defendant under the

Fourtly Amendment. In the Jodisco ease there was no in

vasion of privacy whatsoever in legal contemplation.

The Cagrt in Todisco refers to an article in a law re-

view which assimilates a device such as ueminifon with

that of taking notes. .As stated above, the learned Court

in this ease adopted such a view as expressed in his deal-

ing with the Motion to Suppress and in his Charge to the

Jury. It seems apparent that where the entrance is gained

by.misrepresentation into a private office, it is more the

Trojan horse than a note-taking matter. It is submitted

it goes to the very essenese of the rights under the con-

stitutionally protected area of the Fourth Amendment.

In United States v. Kabot, supra, an accountant was In;

dicted and found guilty of offering and giving a bribe to

a government agent to settle an income tax case of a tax-

payer he was representing. The agent went to the office

of the defendant with a minifon attached to his person to

cover a situation indicating the offering of a bribe by the

accountant, recorded a conversation coneerning the sub-

ject matter, with explicit instructions not to lead the de-

fendant on. Also a device was planted in the agent’s hotel

room to record and transmit to agents outside, the oceur-

rences covering the same matter. This was clearly not the

obtaining of entrance by the Agent into the office by mis-

representation, and there was ‘absent any evidence as to

illegal entrapment. Again, as in Todisco, this is distin-

guishable from the instant case.

30

Conclusion

For the foregoing reasons this petition for writ of cer.

tiorari should be granted. .

Respectfully submitted,

Kpwarp J. Davis,

- 11 Pemberton Square

“ Boston, Massachusetts.

Attorney for Petitioner.

Appendix

United States Court of Appeals

For the First Circuit

No. 5981.

GERMAN $8. LOPEZ,

DEFENDANT, APPELLANT,

si v.

UNITED STATES OF AMERICA,

APPELLEE,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Before Woopsurny. Chief Judge, and Harrigan

and Anupricn, Circuit Judges.

Edwerd J. Davis for appellant.

Wiliam C. Madden, Assistant U. S. Attorney, with whom

W. Arthur Garrity, Jr., United States Attorney, and John J. Curtin,

Jr., Assistant U, S. Attorney, wee on brief, for appellee.

OPINION OF THE COURT.

June 15, 1962.

Judgment will be entered affirming the

judament of the District Court.

Per CuRIAM.