LeDent v. Wolff

• Decision Date: 28 October 1971
• Docket Number: No. CV71-L-149.,CV71-L-149.
• Citation: 334 F. Supp. 64
• Parties: Larry LeDENT, Petitioner, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal Complex, Respondent.
• Court: U.S. District Court — District of Nebraska

334 F. Supp. 64

Larry LeDENT, Petitioner, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal Complex, Respondent.

No. CV71-L-149.

United States District Court, D. Nebraska.

October 28, 1971.

COPYRIGHT MATERIAL OMITTED

Paul E. Watts, Omaha, Neb., for petitioner.

Calvin E. Robinson, Asst. Atty. Gen., for respondent.

MEMORANDUM OF DECISION

URBOM, District Judge.

The petitioner, Larry LeDent, is currently incarcerated in the Nebraska Penal and Correctional Complex. He is serving a 4 to 5-year sentence imposed by the District Court of Douglas County, Nebraska, after a jury found him guilty of possession of marijuana. LeDent now seeks relief through a petition for writ of habeas corpus. Oral arguments on the respondent's motion for a summary judgment were combined with arguments on the merits of the petitioner's claim. Counsel for both parties have stipulated to the accuracy and completeness of the state court records and have agreed that they may be considered by the court for all purposes.

Larry LeDent was first arrested on a charge of possession of depressant or stimulant drugs in late August or early September of 1968. After a discussion with a police officer on the vice control detail and assistant county attorney Eugene Leahy, it was agreed that the charge against LeDent would not be prosecuted, if LeDent would agree to act as an informer to the Omaha police. It was agreed that LeDent would operate in a normal fashion and give periodic reports of narcotics activities in the Omaha area to the police. On several occasions LeDent, using his father as an intermediary, did give information to Joe Friend of the vice control detail of the Omaha police.

In the latter part of October, 1968, LeDent offered to sell a quantity of marijuana to Louis Schiern. Schiern was convinced that LeDent was working for the police. Schiern in fact was arrested on November 2, 1968, on a narcotics charge, although it is not clear whether the arrest was made on the basis of information supplied by LeDent. On November 4, 1968, Schiern reached officer Carl Grossoehme of the Nebraska State Patrol Drug Control Division and informed him that LeDent had fifty lids of marijuana and a homemade brick of grass stored in LeDent's parents' home. Schiern gave the information to Grossoehme in retaliation for LeDent's assumed connection with the Omaha police. On the basis of this information officer Grossoehme prepared an affidavit and an application for a search warrant. The warrant was issued by a state district judge, and officer Grossoehme in the company of officer Quist of the Omaha Police Department went to the LeDent home, where the officers found 47 lids of marijuana stored in a crawl-away beneath the basement stairs. The information given by Schiern proved to be quite accurate, as the two officers were able to go directly to the place where the marijuana was stored.

Over objection of the defendant's counsel the marijuana was introduced into evidence at the criminal trial. LeDent was found guilty by the jury and the conviction and sentence were affirmed by the Supreme Court of Nebraska. State v. LeDent, 185 Neb. 380, 176 N.W.2d 21 (1970), cert. denied, 400 U.S. 917, 91 S.Ct. 177, 27 L.Ed.2d 157 (1970).

At the oral argument on the petition for writ of habeas corpus in this court counsel for the petitioner presented three issues:

(1) whether LeDent was entrapped by the state into committing a crime;

(2) whether the state was estopped from prosecuting LeDent for the crime of possession of marijuana; and

(3) whether the affidavit and application for search warrant were sufficient.

These issues were raised in the direct appeal to the Supreme Court of Nebraska and decided adversely to LeDent.

ENTRAPMENT AND ESTOPPEL

The petitioner's defense at his criminal trial was based partially on entrapment. The issue was raised during argument on the petition for a writ of habeas corpus with counsel for the respondent agreeing that a federal issue was presented. An examination of the cases reveals that in only one instance, Banks v. United States, 249 F.2d 672 (C.A. 9th Cir. 1958), has entrapment been held to raise a constitutional issue. In that case it was held that issues of entrapment should have been considered by the district court in a 28 U.S.C. § 2255 proceeding, and the case was remanded. When the case was next before the Ninth Circuit, the court of appeals substantially withdrew from the position in Banks I and in considering the appellant's contention that he was denied due process because of the insufficiency of the trial court's instruction on entrapment the court said: "None of the first three contentions above noted involves a violation of the constitutional rights of appellant." Banks v. United States, 258 F.2d 318, 319 (C.A. 9th Cir. 1958). The Ninth Circuit strongly reaffirmed the position taken in Banks II in the case of Black v. United States, 269 F.2d 38 (C. A. 9th Cir. 1959). This appears to be the usual view, including that of this circuit. See Evans v. United States, 408 F.2d 369 (C.A. 7th Cir. 1969); United States v. Bailey, 331 F.2d 218 (C.A. 7th Cir. 1964); Simmons v. United States, 302 F.2d 71 (C.A. 3rd Cir. 1961); Way v. United States, 276 F.2d 912 (C.A. 10th Cir. 1960); Turner v. United States, 262 F.2d 643 (C.A. 8th Cir. 1959); and Davis v. United States, 205 F.2d 516 (C.A. 5th Cir. 1953). The standard does not differ in a habeas corpus proceeding attacking a state conviction. In United States ex rel. Hall v. Illinois, 329 F.2d 354 (C.A. 7th Cir. 1964), the court expressly declined to grant habeas relief on the petitioner's contention that failure to instruct on entrapment raised a due process question. Hall was relied on in Benson v. Carter, 396 F.2d 319 (C.A. 9th Cir. 1968), to reach the same result, thus completing the withdrawal of the Ninth Circuit from the rationale advanced in Banks I. I therefore conclude that the entrapment and estoppel issues are matters of substantive state law and do not raise constitutional issues under the due process clause of the Fourteenth Amendment.

THE STATUTORY EXEMPTION

Section 28-462, R.R.S. Neb.1943, a portion of the marijuana law in effect at the time of LeDent's trial, provides that:

"* * * the provisions of this act restricting the possession * * * of narcotic drugs shall not apply to * * * persons whose possession is for the purpose of aiding public officers in performing their official duties."

The testimony at the criminal trial was conflicting as to whether LeDent's arrangement with Leahy authorized him to sell marijuana. It could have been found either that LeDent was authorized to operate exactly as he had before his first arrest or that he was expressly forbidden to deal in narcotics for his own profit. As the Supreme Court of Nebraska noted in its opinion affirming LeDent's conviction, the trier of fact reasonably could have found either way. State v. LeDent, 185 Neb. at 383, 176 N.W.2d 21.

This court has previously held that when a statute confers a benefit, the benefit must be made available to all equally. To grant the benefit to one class, while withholding it from another, is an invidious discrimination intolerable under the equal protection clause of the Fourteenth Amendment. Sawyer v. Sigler, 320 F.Supp. 690 (U.S.D.C. Neb. 1970). This is not LeDent's situation, as he does not fit within any identifiable class which is being made the object of discriminatory treatment. I therefore hold that as to issues numbered (1) and (2), there is no federal question presented and this court is without jurisdiction to consider the issues on collateral review. Summary judgment will be granted for the respondent as to those issues.

THE AFFIDAVIT AND WARRANT

Prior to the trial in the District Court of Douglas County, LeDent's counsel filed a motion to suppress the evidence found when executing the search warrant. The motion was heard immediately before the trial. During the hearing counsel for the petitioner sought to have the evidence suppressed on the basis of the insufficiency of the affidavit in support of the warrant. Although the petitioner's counsel took the position that the burden of proof was on the state to prove the adequacy of the affidavit, the trial judge placed the burden on the defendant (LeDent). No evidence was adduced at the hearing and the motion to suppress was denied. Counsel for LeDent objected to the introduction of the seized marijuana at every appropriate stage of the trial and presented further argument on the sufficiency of the affidavit at the hearing on his motion for a new trial. Because of the complexity of the Fourth Amendment questions presented, it is necessary to examine the affidavit and warrant in considerable detail.

The body of the affidavit upon which the warrant was issued is as follows:

"That the following are the grounds for issuance of a search warrant for said property and the reasons for his belief, to-wit:¹ That the said Larry LeDent is a resident at the above address and is the son of the registered title holder; and that a reliable informant related to the investigative authorities that the said Larry LeDent has offered to the said reliable informant certain narcotic drugs for resale; that on Friday, November 1, 1968, the said Larry LeDent told the said reliable informant that he had fifty (50) lids of marijuana available and also a homemade brick of grass available for resale; and that he knows that reliable informant knows that the narcotics are kept at the residence at 13450 Frederick Street, Omaha, Douglas County, Nebraska.² The reliable informant has given your Affiant other information that coincides with information received from other reliable sources. Said reliable informant's information has been verified and that information received has been the truth. The said Larry LeDent is now charged under an information charging him with possession of depressant or stimulant drugs in a separate incident."

The...