# Petition for Writ of Certiorari — Lopez v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0205%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 373 U.S. 427 ## Text Office Supreme Court, U.S, RFlikD a“ “ee JUL 7. 19% JOHN F. DAVIS, CLERK = 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 > Epwaxrp J. Davis 11 Pemberton Square Boston, Massachusetts. Attorney for Petitioner. saaeaianes = — oe Blanchard Printing Company. Boston. Mass. — Law Printers a 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 & G ar) i ae \ Section 4232(b) ... 5 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 = a 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. f J 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 > Constitutional Provisions, Statutes bart ag and Rules of Court Involved ¢ 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 . 2. Rule 52(b) Federal Rules of Crimimal Procedure reads: 8 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. : ‘ = 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 a. 6 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 ). - 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). ° 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) x > 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 ee 0 , oe 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— g a 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 : oe ° “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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0205%3A2. Public record. Not legal advice.