Mitchell v. Ravitz, 85-1029
| Decision Date | 30 September 1985 |
| Docket Number | No. 85-1029,85-1029 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Robert Mitchell, Petitioner-Appellant, v. Justin Ravitz; Robert Facano; Attorney General State of Michigan; and Dale E. Foltz, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Petitioner, Robert Mitchell, appeals from a denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 by the United States District Court for the Eastern District of Michigan. We AFFIRM the district court's denial of the habeas corpus petition.
Petitioner, a former Detroit police officer, was indicted and convicted for his part in a broad drug conspiracy implicating several police officers. The alleged objective of the conspiracy was to share in 'huge profits' derived from the narcotics business within Detroit's Tenth Precinct.
Under Count I, petitioner was convicted of conspiracy to sell, manufacture, deliver, or possess with intent to sell narcotics in violation of Mich. Stat. Ann. Sec. 28.354(1). Count I charged that petitioner and other police officer defendants counselled, aided, and planned the setting up of narcotics establishments in exchange for money; aided the civilian traffickers by tipping them off when raids were to take place; worked with those traffickers to raid rival narcotics operators to secure money and narcotics and then recycled the narcotics so obtained through friendly operators; accepted money to allow friendly operators to remain undisturbed while raiding their competition. The prosecution also contended that the corrupt police officers set the ground rules for favored drug operations in Detroit's Tenth Precinct.
Petitioner was also convicted under Count II for conspiracy to obstruct justice in violation of Mich. Stat. Ann. Sec. 28.773. Under Count II, petitioner and the other defendants allegedly had conspired to obstruct justice through the commission of numerous crimes in support of the conspiracy to traffic in narcotics, as alleged in Count I.
Petitioner and the other defendant police officers asserted that they were scapegoats and victims of a politically motivated scheme by prosecutors and high-level police officers who sought to indict and convict petitioner and the other defendants to show success against extensive illegal drug trafficking in Detroit. Petitioner and other defendants contended that they had acted only in the furtherance of their authorized duties, and that the case against them was fabricated by the prosecution and officials in the police department.
Petitioner's conviction on both counts was affirmed by the Michigan Court of Appeals. People v. Iaconnelli, 112 Mich. App. 725, 317 N.W.2d 540 (1982). The Michigan Supreme Court denied leave to appeal. People v. Haslip, 417 Mich. 1045 (1983). Petitioner then filed with the U. S. District Court for the Eastern District of Michigan a petition for habeas corpus pursuant to 28 U.S.C. Sec. 2254, asserting that his fifth and fourteenth amendment rights to a fair trial had been violated. The district court denied the petition, finding no constitutional violations. Petitioner appeals from that denial of his petition for writ of habeas corpus.
Petitioner alleges that the state trial court's failure to instruct the jury on application of Mich. Stat. Ann. Sec. 18.1070(56)(3), repealed by 1978 Mich. Pub. Acts 368, ('[n]o liability' be imposed 'upon any authorized state, county or local official engaged in the lawful performance of his duties') constituted reversible error. Acknowledging that he gave narcotics to informants in exchange for information, petitioner argued that his actions were in furtherance of legitimate police goals. Petitioner claims that since the state court's instructions failed to present his theory of innocence to the jury, his right to a fair trial was denied. Petitioner was not convicted of the substantive offense of distributing narcotics, rather he was charged with conspiracy to deliver narcotics. The trial court essentially instructed the jury that if petitioner in good faith believed his actions were lawful then even though he was not authorized to deliver the drugs he could not be convicted of the illegal conspiracy. 1 Thus the trial court increased the burden upon the government by requiring that it not only prove that petitioner was not objectively authorized to deliver the drugs, but also that he subjectively thought he was authorized to deliver the drugs. In our view, the trial court appropriately instructed the jury on defendant's theory.
As a procedural matter, in any event, this court need not address petitioner's allegation on this point since the viability of the statutory exemption as a defense is a state law question. The Michigan Court of Appeals held that the trial court properly instructed the jury on state law. 317 N.W.2d 553-54. Proper interpretation of state law is within the province of state courts, and does not present a federal question. Combs v. Tennessee, 530 F.2d 695, 698 (6th Cir.), cert. denied, 425 U.S. 954 (1976). Thus, petitioner's claim of error based on the jury instructions is without merit.
Similarly, petitioner's claim that the state court's denial of his request for a bill of particulars denied him a fair trial presents a state law question and does not present a federal constitutional question. Combs, 530 F.2d at 698. In a similar case, the Michigan Supreme Court held that a bill of particulars was not required. People v. Tenerowicz, 266 Mich. 276, 287-88 (1934); accord People v. Jones, 75 Mich. App. 261, 268-69 (1977). Since a federal court may not review the decision of the state's highest court on state law, 2 Long v. Smith, 663 F.2d 18 (6th Cir. 1981), cert. denied, 455 U.S. 1024 (1982), the Michigan Supreme Court precedent does not require that petitioner be granted a bill of particulars.
Nor did the denial of petitioner's request for a bill of particulars deny him his due process right to notice. Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977). Given the vast amount of information provided to petitioner by the prosecution, petitioner had sufficient notice. Thus, this contention is also without merit.
Petitioner's primary contention is that six separate forms of prosecutorial misconduct when taken as a whole so prevaded the entire trial that he was denied his right to a fair trial. Petitioner cites the alleged instances of misconduct as 1) interjections of irrelevant and prejudicial matters into the case; 2) knowing use of perjured testimony; 3) intimidation of witnesses to compel them to plead the fifth amendment; 4) selective use of grant of immunity; 5) improper withholding of exculpatory evidence; and 6) unjustifiable cash payments to witnesses.
Petitioner cites as prejudicial the prosecutor's 'vouching' for the honesty and integrity of Lieutenant Bennett, who had been placed in charge of the investigation leading to the charges in this case; the prosecutor's inquiry into subjects unrelated to the facts at issue; and the prosecutor's misleading and prejudicial questions. While not a model of good prosecutorial conduct, these problems when taken in context do not rise to the level of reversible error especially in light of the court's curative instructions.
During his opening statement, the prosecutor made the following improper statement:
I believe [the police commissioner] will further testify that in order to achieve [a thorough and proper investigation] he picked a man to be in charge of that investigation. He picked a man who he felt could investigate thoroughly, honestly, with integrity, he picked a man, the then lieutenant George Bennett, now Deputy Chief George Bennett, who is seated at our table.
There was no objection to this statement. During her opening arguments, one defense attorney clearly alluded to political motivations as underlying the investigation:
I don't think you'll be able to avoid finding, or feeling that the picture being put together is as much, if not more about the people who are presenting the case, the police investigators, the prosecutors, the Organized Crime Task Force, and the witnesses as it is about the defendants
.............................................................
...................
* * *
* * *
* * *
I think what the evidence will show is a group of men, one more motivated than the others, . . . who from the beginning sought the end result, and that because of that preconceived nature of the quest, he could not help but to mold and shape the testimony . . . and the statements of the witnesses he interviewed . . .. When [these witnesses] smelled the political motives, the aspirations . . . [i]t's not surprising that these men grasped . . . at a chance to get out.
Petitioner's attorney followed this line of attack with the following statements:
I think the facts are going to show that they prosecuted a group of men [defendant police officers] that by their positions, by their low rank, could not, would not, but wished they would have had access to major narcotics dealers. I think the facts are going to show that these men tried through the junkies, the prostitutes, and through the low-level narcotics people . . . to go higher up the ladder and get higher people in the narcotics underworld in the city of Detroit. And I believe that the facts will show . . . that that might be a reason for this prosecution. Not because they were bad cops, but because they were good cops. They were doing a good job,...
To continue reading
Request your trial