# United States v. Levin

> Court of Appeals for the Sixth Circuit · August 7, 1992 · 973 F.2d 463

URL: https://www.frixlaw.com/law-library/cases/9002432

## Case

- **Full name:** United States v. Richard D. LEVIN Richard D. Levin, M.D., P.S.C., Inc. Paul H. Sorg
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 7, 1992
- **Citations:** 973 F.2d 463; 1992 WL 186669
- **Precedential status:** Published
- **Opinion:** Concurrence by Martin
- **Judges:** Keith, Krupansky, Martin
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9002432

## How later opinions describe it (automated extraction)

- affirming district court’s dismissal of an indictment under Rule 12 where the prosecutor conceded that the facts were undisputed, and based on the undisputed facts, the defendant could not have formed the requisite intent to commit the crime
- stating that a pre-trial examination of the evidence disregards the boundary that exists between the role of the grand jury and the role of the trial court
- affirming district court’s pretrial dismissal of the indictment where “the undisputed extrinsic evidence” showed that the defendants could not, as a matter of law, have formulated the necessary criminal intent
- affirming the district court’s dismissal of an indictment when “undisputed extrinsic evidence” demonstrated that “the government was, as a matter of law, incapable of proving” an element of the offense

## Opinion text

BOYCE F. MARTIN, Jr., Circuit Judge,
dissenting.
If the majority opinion had any factual, logical, or legal support, then I would con *471 sider joining the opinion. I must dissent, however, because I feel the opinion lacks such support. The majority’s decision has knowingly or unknowingly endorsed a criminal justice system that allows a defendant to “try” the merits of a criminal case in a pre-trial hearing before a judge. Moreover, the decision has boldly eviscerated the role that the grand jury has traditionally played in our criminal justice system.
History demonstrates that an extremely delicate balance exists between a grand jury and a trial court. The grand jury’s chief duty is to investigate possible criminal wrongdoing and to make a determination whether, more likely than not, a crime has been committed. When a grand jury finds there is probable cause to believe that a crime has been committed, it issues an indictment charging a defendant with the crime. Once the grand jury has returned a true bill, it is generally the trial court’s duty to try the defendant and determine beyond a reasonable doubt whether the defendant has committed the charged crime. It is not the duty of the grand jury to declare that a defendant has, in fact, committed a crime, and the trial court generally may not enter a judgment of acquittal before trial based on the lack of evidence.
The delicate balance that exists between a grand jury and a trial court is nicely demonstrated in United States v. Williams, — U.S. -, 112 S.Ct. 1735 , 118 L.Ed.2d 352 (1992). In Williams , a federal grand jury charged the defendant with making false statements for the purpose of influencing the action of a federally-insured financial institution. Id. at -, 112 S.Ct. at 1737-38 . The trial court dismissed the indictment because it found that (1) at the grand jury proceedings the government withheld evidence that was “relevant to an essential element of the crime charged”; and (2) the withheld evidence created a reasonable doubt of the defendant’s guilt. Id. at-, 112 S.Ct. at 1738 . Although the Tenth Circuit affirmed the district court’s order, the Supreme Court disagreed. In reversing, the Court held that even under the federal courts’ supervisory power, a federal court may not dismiss a facially valid indictment simply because the government had failed to present substantial exculpatory evidence to the grand jury. Id. at-, 112 S.Ct. at 1736 . In other words, once a grand jury has issued a facially valid indictment charging the defendant with a crime, the trial court should conduct a trial to determine whether the defendant did, in fact, commit the crime. At trial, if the government fails to offer sufficient evidence of guilt, the court may then enter a judgment of acquittal.
Although the facts of Williams are different from the facts of this case, the rationale behind the Williams decision, namely that a trial court should be extraordinarily reluctant to conduct a pre-trial examination of the evidence to determine whether a trial is warranted, is applicable to this case. The court’s reluctance emanates from the fact that such a pre-trial examination would ignore the boundary that exists between the role of the grand jury and the role of a trial court. In cases that do call for pre-trial disposition of motions, Fed. R.Crim.P. 12 covers the situation very well:
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion....
(e) Ruling on Motion. A motion before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after the verdict, but no such determination shall be deferred if a party’s right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
Fed.R.Crim.P. 12. In discussing Rule 12, this court has stated:
The rule was written to encourage the making of motions prior to trial. District courts are directed to dispose of all motions before trial if they are capable of determination without trial of the gener *472 al issue. Generally, motions are capable of determination before trial if they raise questions of law rather than questions of fact. However, Rules 12(e) and 12(g) clearly envision that a district court may make preliminary findings of fact necessary to decide the questions of law presented by [a] pre-trial motion so long as- the court’s findings on' the motion do not invade the province of the ultimate finder of fact. Thus, a defense is “ ‘capable of determination’ if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.”
United States v. Jones, 542 F.2d 661, 664-65 (6th Cir.1976) (quoting United States v. Covington, 395 U.S. 57, 60 , 89 S.Ct. 1559, 1561 , 23 L.Ed.2d 94 (1969)) (citations and footnote omitted).
I found no language either in the rule or in the rule’s commentary that would suggest that a district court has the authority, in the face of a pending indictment, to conduct a pre-trial hearing to weigh the evidence and decide whether a trial is in order. In the case before us, however, the district court has done just that. The trial court based its dismissal on the existence of several letters written by the government or its agents to parties other than Levin; there apparently is no evidence that Levin saw these letters before the grand jury indicted him. Notwithstanding the language used by the district court or the majority’s characterization, I believe the district court’s pre-trial decision that the government would not be able to establish the requisite criminal intent at trial was, in essence, a decision that the indictment was based on insufficient or inadequate evidence. A defendant, however, may not challenge an indictment on the ground that it is not supported by sufficient evidence. In United States v. Short, 671 F.2d 178, 183 (6th Cir.1982), we forcefully stated that “[w]hen a body of citizens, properly chosen and constituted as a grand jury, finds probable cause to believe that a crime has been committed within its jurisdiction, that finding is sufficient to require a trial.” See also United States v. Calandra, 414 U.S. 338, 345 , 94 S.Ct. 613, 618 , 38 L.Ed.2d 561 (1974) (“[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on inadequate or incompetent evidence.... ”); United States v. Adamo, 742 F.2d 927, 936 (6th Cir.1984) (“An indictment returned by a legally constituted and unbiased grand jury ... if valid on its face, is enough to call for trial of the charge on the merits.”) (quoting Short, 671 F.2d at 182 ), cert. denied sub nom. Freeman v. United States, 469 U.S. 1193 , 105 S.Ct. 971 , 83 L.Ed.2d 975 (1985); United States v. Warner, 690 F.2d 545, 555 (6th Cir.1982) (relying on Calandra to reject defendant’s argument that district court should have dismissed an indictment count that was based on insufficient evidence).
In this case, the only conclusion I can reach is that the district court improperly dismissed the indictment. There is no evidence that the grand jury was illegally constituted or that the indictment was invalid on its face. The real crux of the district court’s decision is a belief that the evidence shows the defendants did not commit any crime. One may select various characterizations for the court’s action, but in my mind the substance of the court’s action was a dismissal of the indictment because of insufficient evidence. This was an improper action on the part of the district court.
In support of its decision to uphold the district court’s decision, the majority relies on the doctrine of entrapment by estoppel. Several courts have recognized the defense of entrapment by estoppel but never on facts such as those before this court. See, e.g., United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655 , 93 S.Ct. 1804 , 36 L.Ed.2d 567 (1973); Cox v. Louisiana, 379 U.S. 559 , 85 S.Ct. 476 , 13 L.Ed.2d 487 (1965); Raley v. Ohio, 360 U.S. 423 , 79 S.Ct. 1257, 3 . L.Ed.2d 1344 (1959); United States v. Smith, 940 F.2d 710 (1st Cir.1991); United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987). The doctrine of entrapment by estoppel is based on the fundamental notions of fairness embodied in the Due Process Clause. Smith, 940 *473 F.2d at 714 ; United States v. Austin, 915 F.2d 363, 366 (8th Cir.1990) (quoting United States v. Bradey, 710 F.Supp. 290, 295 (D.Colo.1989)), cert. denied, — U.S.-, 111 S.Ct. 1626 , 113 L.Ed.2d 722 (1991).
The defense of entrapment by estoppel exists if (1) a government official advised the defendant that an act was legal; (2) the defendant relied on the official’s advice; (3) the defendant’s reliance was reasonable; and (4) given the defendant’s reliance, prosecution would be unfair. Smith, 940 F.2d at 715 . Obviously, in order to determine whether the defense of entrapment by es-toppel exists, a trier of fact must conduct a factually specific inquiry. Thus, assuming that this court recognizes the defense, the real question is whether the district court had the authority to decide the merits of the defense in a pre-trial hearing.
Although my research reveals no case law directly on point, in related areas the courts have clearly discouraged the pretrial disposition of motions to dismiss that are based on defenses requiring fact finding. In United States v. Knox, 396 U.S. 77, 78-79 , 90 S.Ct. 363, 364 , 24 L.Ed.2d 275 (1969), the district court had dismissed an indictment charging the defendant with knowingly and willfully submitting false tax forms. On appeal, the defendant asserted that the federal tax statutes compelled him to submit the false statements because the statutes provided for penalties if he did not file the forms. Id. at 81 , 90 S.Ct. at 366 . In reversing the dismissal of the indictment, the Supreme Court stated:
[T]he question whether Knox’s predicament contains the seeds of a “duress” defense, or perhaps whether his false statement was not made “willfully” as required by § 1001, is one that must be determined initially at trial.
Id. at 83, 90 S.Ct. at 367 . The Court also noted that Fed.R.Crim.P. 12 “indicates that evidentiary questions of this type should not be determined on such a motion.” Id. at 83 n. 7, 90 S.Ct. at 367 n. 7. See also United States v. Fadel, 844 F.2d 1425, 1431 (10th Cir.1988) (holding that because entrapment focuses on the defendant’s state of mind, a pre-trial motion for such a defense is seldom appropriate).
In this case, contrary to the majority’s assertion, the facts necessary to resolve the entrapment by estoppel defense were not undisputed. The majority quotes a colloquy between the district court and the government’s attorney and asserts that in this colloquy the government’s attorney conceded that the relevant facts in this case were undisputed. If you review the colloquy, however, you will discover that the attorney for the United States conceded only that the facts surrounding the mechanics of Levin’s kickback scheme were undisputed; there was no concession on the part of the government that any other facts were undisputed. Thus, by implication the following facts were and are still in dispute with respect to the entrapment by estoppel defense: (1) whether an agent of the United States told Levin, as opposed to any other individuals, that the conduct at issue was allowed under the statute; (2) whether Levin actually relied on the government’s letters; and (3) whether Lev-in’s reliance was reasonable especially in light of the fact that there was abundant government material that stated that the particular type of conduct that Levin engaged in was, in fact, illegal. These disputed facts go to the heart of the entrapment by estoppel defense and, thus, involve the ultimate determination of guilt or innocence. When the district court dismissed the indictment based on the letters issued by the government’s representatives, the court unacceptably invaded the jury’s province.
Although I, too, am confused and amazed by the existence of the letters, this still does serve as a sufficient basis for the pre-trial dismissal of the section 1395nn counts. The letters were possibly admissible at trial to show a lack of criminal intent or to establish the defense of entrapment by estoppel. If the defendants had used the letters at trial to create reasonable doubt about the existence of criminal intent or to establish entrapment by estoppel, then the district court could have directed a verdict of acquittal. Alternatively, if the government had failed to meet its burden *474 of proof at trial, then the court could have also chosen to direct a verdict of acquittal. One may not like the procedures that courts have to go through to reach a particular result, but our criminal justice system requires us to follow some procedures. Today, the majority may believe that it is helping “innocent” defendants by allowing them to avoid the rigors of trial; however, what seems like a noble gesture may, in the end, hurt more than help. I only hope that today’s decision does not create in every criminal case a pre-trial hearing whose sole purpose is to examine the evidence and determine whether there should be a trial. If this occurs, the time necessary for pre-trial hearings, combined with the time necessary for sentencing, will leave no time for the actual trials.
For the foregoing reasons, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9002432. Public record. Not legal advice.