Opposition Brief — Larun E. Miller, Petitioner v. United States

No. 17-6596

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

LARUN E. MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

ALEXANDER P. ROBBINS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the government’s purportedly “outrageous” conduct,

inducing petitioner to continue communicating with a fictitious

14-year-old girl against whom he had already committed sex crimes,

barred the government from prosecuting him for those crimes.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-6596

LARUN E. MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 4a-12a) is not

published in the Federal Reporter but is available at 696 Fed.

Appx. 696.

JURISDICTION

The judgment of the court of appeals was entered on June 13,

2017.

A petition for rehearing was denied on August 2, 2017 (Pet.

App. 1a).

The petition for a writ of certiorari was filed on

October 30, 2017.

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

The jurisdiction of this Court is invoked under

STATEMENT

Following a bench trial in the United States District Court

for the Northern District of Ohio, petitioner was convicted of

attempting

to

coerce

or

entice

a

minor

into

engaging

in

prostitution or unlawful sexual activity, in violation of 18 U.S.C.

2422(b); attempting to coerce or entice a minor into creating child

pornography, in violation of 18 U.S.C. 2251(a) and (e); failing to

register as a sex offender, in violation of 18 U.S.C. 2250(a); and

committing a felony sex offense involving a minor while being

required to register as a sex offender, in violation of 18 U.S.C.

2260A.

Pet. App. 13a.

The district court sentenced petitioner to

540 months of imprisonment, to be followed by a lifetime of

supervised

release.

affirmed.

Id. at 4a-12a.

into

Id.

at

14a-15a.

The

1.

Petitioner is a serial sex offender.

a

woman’s

home

and

bound

Investigation Report (PSR) ¶ 55.

and

raped

court

of

appeals

In 1991, he broke

her.

Presentence

In 2005, after serving a state

sentence for the 1991 crime, petitioner was caught in a sting

operation attempting to persuade a fictitious single mother he met

on the internet to let him have sex with her 14-year-old daughter.

PSR ¶ 59.

Petitioner was arrested at the airport on his way to

meet them.

Ibid.

In May 2014, less than a year after being released from prison

for the 2005 offense, petitioner logged into an online chat room

under the name “seekingyounger75” from his home in Ohio.

Pet.

App.

5a;

see

investigators

1/26/2016

Tr.

from

state

the

349.

There,

district

he

interacted

attorney’s

office,

were pretending to be a 14-year-old girl living in Colorado.

with

who

Pet.

App. 5a. Over the next several days, petitioner and the fictitious

14-year-old exchanged hundreds of messages, mostly sexual, and

discussed what sexual acts they would perform when petitioner

visited the girl.

details).

Ibid.; Gov’t C.A. Br. 4-5 (providing further

Petitioner also asked the 14-year-old to send him

pornographic pictures of herself and suggested that they make their

own pornography once they met in person.

Pet. App. 4a-5a.

On the fourth day of these conversations, petitioner stopped

responding to messages from the fictitious 14-year-old for about

14 hours, from approximately 2 p.m. on May 31, 2014, until 4:30

a.m. on the morning of June 1, 2014 -- the day on which the two

had discussed meeting in person.

Pet. App. 5a-6a.

Investigators

attempted to resume communications with petitioner in order to

determine whether “he was really coming.”

1/25/2016 Tr. 137-138.

At approximately 4 a.m., the investigators, acting as the victim,

sent the following email to petitioner:

I guess you like to play games and were messing with me, huh?

Fuck this. I will take care of my lousy fucking life and how

people fuck with me and I will leave this worthless world and

put my note how you pushed me over the edge.

Maybe some

fucking show like 20/20 or something will show how fuck heads

who play games who push people over the edge. It’s the last

game I will play. And game on. I’m ending this game and me.

Pet. App. 5a-6a.

A short time later petitioner sent a text message

saying that he had “stopped in Indiana and f[allen] asleep.”

Id.

at 6a.

At approximately 6 a.m., petitioner sent another text

message, stating “hey I got your email quit it I’m not like

everybody else.”

Ibid.

Petitioner then followed up with a phone

call five minutes later, in which he chastised the 14-year-old for

threating suicide and told her that he was trying to finish

something for his boss in Indiana.

1/25/2016 Tr. 145-146.

He

said he had taken the work assignment to get closer to her in

Colorado.

Id. at 145.

And he explained that he had not figured

out yet when he would get to Colorado, but she “better have a bag

of [her] panties and skirts and shorts with [her]” when he arrived.

Id. at 146.

They then discussed having sex in her mother’s bed.

Id. at 146-147.

The two continued to exchange messages over the next two days

until petitioner was arrested in Ohio on June 3, 2014.

6a.

He had never actually left home.

2.

Pet. App.

Ibid.

A grand jury in the Northern District of Ohio returned

an indictment charging petitioner with attempting to coerce or

entice a minor into engaging in prostitution or unlawful sexual

activity, in violation of 18 U.S.C. 2422(b); attempting to coerce

or entice a minor into creating child pornography, in violation of

18 U.S.C. 2251(a) and (e); failing to register as a sex offender,

in violation of 18 U.S.C. 2250(a) and (c); and committing a felony

sex offense involving a minor while being required to register as

a sex offender, in violation of 18 U.S.C. 2260A.

Superseding

Indictment 1-4.

Petitioner waived his right to a jury trial and

was tried before the district court.

Pet. App. 7a.

At the close of the government’s case, petitioner orally moved

to dismiss the indictment “based on due process violations,” citing

the June 1, 2014 email as being “so outrageous” that it required

dismissal of all charges.

1/26/2016 Tr. 427.

denied the motion the following day.

court

observed

that

petitioner’s

The district court

1/27/2016 Tr. 449-453.

argument

was

“basically”

The

an

entrapment argument, but confirmed that petitioner was not raising

such a defense.

whether

a

Id. at 449, 451.

distinct,

The court expressed doubt as to

inducement-based

due

“viable” under Sixth Circuit precedent.

process

defense

Id. at 451.

was

But the

district court found that dismissal “would not be appropriate”

even if such a defense existed, given that the government had

“nothing to do with [petitioner’s] initial conduct” of logging

into the chat room and initiating sexual conversations with someone

he believed to be a 14-year-old girl and that, “but-for a little

blip,” the email did not change petitioner’s criminal conduct.

Id. at 449-451; see also Pet. App. 30a n.1 (explaining in the final

written decision that the court “doubts such a defense exists,”

but that “even if it was a proper defense, the facts would not

support it in this case”).

3.

The court of appeals affirmed.

Pet. App. 4a-12a.

The

court had previously reasoned in United States v. Tucker, 28 F.3d

1420 (6th Cir. 1994), cert. denied, 514 U.S. 1049 (1995), that “a

defendant whose defense sounds in inducement is, by congressional

intent and Supreme Court precedent, limited to the defense of

entrapment and its key element of predisposition.”

Id. at 1428.

Relying on that decision here, the court found “no authority in

this circuit holding that the ‘government’s conduct in inducing

the

commission

of

a

crime,

if

“outrageous”

enough,

can

bar

prosecution of an otherwise predisposed defendant under the Due

Process Clause of the Fifth Amendment.’”

Tucker, 28 F.3d at 1424).

Pet. App. 8a (quoting

Accordingly, although the court viewed

the use of a fictitious suicide threat during a sting operation to

be

“concerning,”

it

determined

that

petitioner’s

due

process

defense failed “regardless of the propriety of the government

action in this case.”

Ibid.

ARGUMENT

Petitioner contends (Pet. 5-12) that the lower courts erred

in rejecting his due process defense based on allegedly “outrageous

government

conduct”

inducing

him

to

commit

contention does not warrant this Court’s review.

a

crime.

That

The courts below

correctly rejected petitioner’s due process claim, and the court

of appeals’ decision does not conflict with any decision of this

Court or of any other court of appeals.

Although the courts of

appeals have expressed different views on whether an otherwise

predisposed defendant could ever assert a defense to prosecution

based on “outrageous government conduct,” the facts of this case

would not fall within the extremely narrow category of cases in

which courts have said such a defense might be appropriate.

In

any event, this case would be an unsuitable vehicle for addressing

the question presented because the purportedly outrageous conduct

did not prejudice petitioner, who had already committed his crimes

before the conduct occurred.

1.

Further review is not warranted.

This Court has never held that a defendant who was

otherwise predisposed to commit an offense can avoid conviction by

claiming that the government induced him to commit that offense

through “outrageous” conduct.

Rather, to establish the defense of

entrapment, a defendant must assert both that the government

induced

him

to

commit

a

crime

and

predisposed to commit such a crime.

485

U.S.

58,

62-63

(1988).

that

he

was

not

already

See Mathews v. United States,

The

Court

has

described

the

predisposition element as the “principal element in the defense of

entrapment,” id. at 63 (quoting United States v. Russell, 411 U.S.

423, 433 (1973)), focusing the jury “upon whether the defendant

was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who

readily availed himself of the opportunity to perpetrate the

crime,” ibid. (quoting Sherman v. United States, 356 U.S. 369, 372

(1958)).

And the Court has repeatedly rejected the so-called

“objective” theory of entrapment, which would focus only on the

government’s conduct.

See Russell, 411 U.S. at 433-434; Sherman,

356 U.S. at 376-377; Sorrells v. United States, 287 U.S. 435, 451

(1932).

The entrapment defense “is rooted, not in any authority of

the Judicial Branch to dismiss prosecutions for what it feels have

been ‘overzealous law enforcement,’ but instead in the notion that

Congress

could

not

have

intended

criminal

punishment

for

a

defendant who has committed all the elements of a proscribed

offense,

but

was

induced

to

Russell, 411 U.S. at 435.

commit

them

by

the

Government.”

In other words, the defense is “not

intended to give the federal judiciary a ‘chancellor's foot’ veto

over law enforcement practices of which it d[oes] not approve.”

Ibid.; see United States v. Miller, 891 F.2d 1265, 1271-1272 (7th

Cir. 1989) (Easterbrook, J., concurring) (explaining that it is

“enough to support punishment that this person committed this

offense” and “leaving to other institutions the redirection of

investigative or prosecutorial resources”).

Petitioner has never

argued that he was not predisposed to commit the offenses for which

he was convicted (cf. supra pp. 5-6), and he therefore cannot

assert a viable entrapment defense.

In Russell, the Court left open the possibility that conduct

of law enforcement officials may be “so outrageous that due process

principles

judicial

would

absolutely

processes

to

predisposed defendant.

bar

obtain

a

the

government

conviction”

411 U.S. at 431-432.

of

from

invoking

an

otherwise

The Court included

a “cf.” citation, id. at 432, of Rochin v. California, 342 U.S.

165 (1952), in which the Court reversed a drug conviction based on

drug evidence that the police had obtained by forcibly pumping the

defendant’s stomach “against his will,” id. at 166; see id. at

174.

The Court there focused on the unconstitutionality of “force

so brutal and so offensive to human dignity in securing evidence

from a suspect as is revealed by this record,” and explicitly “put

to

one

side”

various

other

“modern

methods

and

devices

discovering wrongdoers and bringing them to book.”

And

the

Court’s

subsequent

decisions

indicate

for

Id. at 174.

that,

if

any

outrageous government conduct defense exists as to non-violent

investigative tactics, it is exceedingly narrow in scope.

In

Hampton

v.

United

States,

425

U.S.

484

(1976),

the

plurality would have rejected any due process defense when a

defendant is predisposed to engage in the crime.

(plurality opinion).

Id. at 488-491

Justice Powell, joined by Justice Blackmun,

concurred in the judgment and did not wish to foreclose all

possibility of a due process defense, but “emphasize[d] that the

cases, if any, in which proof of predisposition is not dispositive

will be rare.”

Id. at 495 n.7.

And in United States v. Payner,

447 U.S. 727 (1980), the Court cast further doubt on a due process

defense based on purportedly outrageous conduct.

See id. at 737 n.9

(“[T]he limitations of the Due Process Clause

. . .

come into

play only when the Government activity in question violates some

protected right of the defendant.”) (quoting Hampton, 425 U.S. at

490 (plurality opinion)).

2.

Petitioner

contends

(Pet.

5-8)

that

the

court

of

appeals’ rejection of an outrageous government conduct defense in

these circumstances conflicts with the decisions of other courts

of appeals.

Although the Sixth Circuit has gone further than some

other courts of appeals by explicitly foreclosing an outrageous

government conduct defense that relies solely on an objective

challenge to the government’s investigative tactics, its decision

in this case is consistent with the results reached by those other

courts.

No court of appeals has held that a predisposed defendant

may establish a violation of due process in circumstances analogous

to those presented here.

Although most courts of appeals recognize the possibility of

an outrageous government conduct defense in theory, petitioner

himself acknowledges that the defense is “often found not to

apply.”

Pet. 7.

Indeed, as petitioner highlights, the First

Circuit has labeled the doctrine as “moribund.”

Capelton, 350 F.3d 231, 243 n.5 (2003).

United States v.

The Fourth Circuit has

recognized the same, explaining that, “in practice, courts have

rejected

United

its

States

omitted).

application

with

v.

13

Jones,

almost

F.3d

100,

monotonous

104

regularity.”

(1993))

(citation

And 20 years ago, the Third Circuit described the

doctrine as “hanging by a thread.”

United States v. Nolan-Cooper,

155 F.3d 221, 230 (1998); see also United States v. Jayyousi, 657

F.3d 1085, 1111 (11th Cir. 2011) (“We have never applied the

outrageous government conduct defense and have discussed it only

in dicta.”), cert. denied, 567 U.S. 946 (2012).

Petitioner identifies (Pet. 6) only two cases where courts of

appeals have ordered or affirmed dismissals of criminal charges on

“grounds of outrageousness” -- United States v. Twigg, 588 F.2d

373 (3d Cir. 1978), and Greene v. United States, 454 F.2d 783 (9th

Cir. 1971).

Neither provides any basis for further review here.

The Third Circuit has not relied on Twigg since that case was

decided four decades ago.

Three circuit judges have expressly

called for the decision to be overruled, see United States v.

Jannotti, 673 F.2d 578, 610 n.17 (3d Cir.) (en banc), cert. denied,

457 U.S. 1106 (1982), and others have expressed doubt whether it

was correctly decided, see United States v. Beverly, 723 F.2d 11,

12 (3d Cir. 1983); see also United States v. Fattah, 858 F.3d 801,

813 (3d Cir. 2017) (“Since Twigg was decided, this Court has

repeatedly

distinguished, and

even

questioned,

its

holding.”)

(footnote omitted).

Greene was decided even longer ago, before this Court’s

decisions in Russell, Hampton, and Payner, and the Ninth Circuit

has similarly declined to rely on it to require dismissal of any

criminal charges since.

See, e.g., United States v. Black, 733

F.3d 294, 302 (2013) (“Dismissing an indictment for outrageous

government conduct

* * *

the

demonstrate

defendant

can

is ‘limited to extreme cases’ in which

that

the

government’s

conduct

‘violates fundamental fairness’ and is ‘so grossly shocking and so

outrageous

as

to

violate

the

universal

sense

of

justice.’”

(citations omitted)), cert. denied, 135 S. Ct. 267 (2014); United

States

v.

Simpson,

813

F.2d

1462,

government agent’s “use of sex to

1465-1466

* * *

(holding

that

a

lure him into selling

heroin” did not warrant dismissal), cert. denied, 484 U.S. 898

(1987).

In any event, the facts of those cases differ substantially

from the facts here.

In Twigg, a divided panel of the Third

Circuit reversed convictions where government agents had supplied

the defendants -- who had previously been “lawfully and peacefully

minding [their] own affairs,” 588 F.2d at 381; see also id. at 382

-- with the chemicals, the laboratory, and the expertise necessary

for

them

to

manufacture

methamphetamine.

The

Third

Circuit

described the case as one in which the crime was “conceived and

contrived by government agents.”

Id. at 378.

Similarly, in

Greene, the government agent initiated contact with the defendants

after they had been arrested for bootlegging alcohol and for twoand-a-half years after the defendants were released from prison

for the first offense, the agent was heavily involved in reestablishing and sustaining the defendants’ bootlegging operations

--

providing

equipment

and

ingredients

and

serving

as

the

defendants’ sole customer. 454 F.2d at 786-787. The Ninth Circuit

reasoned that the government may not “involve itself so directly

and continuously over such a long period of time in the creation

and maintenance of criminal operations, and yet prosecute its

collaborators.”

Id. at 787.

Here, by contrast, the district court found that petitioner

signed on to the chat room under the name “seekingyounger75” and

“initiated the contact with someone whose persona was that of a

minor” on his own accord.

Pet. App. 5a; 1/27/2016 Tr. 450.

The

government had “nothing to do with his initial conduct” and the

email that petitioner argues constituted outrageous government

conduct came “well into the conversation.”

1/27/2016 Tr. 450.

Other than re-initiating contact with petitioner in an attempt to

determine his travel plans, the email did not change the content or

tenor of the conversation in any way.

See id. at 450-451 (“So there

really wasn’t much change at all in the [petitioner’s] conduct,

conduct that he had initiated and didn’t require any encouragement

from the government to commit.”); see supra, pp. 3-4. The district

court accordingly determined that even if petitioner’s proposed

defense were available, “the facts would not support it in this

case.”

Pet. App. 30a n.1.

No indication exists that any other

court of appeals would find the facts of this case required the

outright dismissal of the charges against petitioner.

3.

Finally, this case would be an unsuitable vehicle for

addressing

the

viability

defense in any event.

structural

errors,

of

an

outrageous

government

conduct

Except for a “very limited” category of

even

a

constitutional

violation

warrants

reversing a conviction only if it prejudiced the defendant.

Neder

v. United States, 527 U.S. 1, 8 (1999) (citation omitted); see

United States v. Gonzalez-Lopez, 548 U.S. 140, 148-149 (2006).

Accordingly, “a district court exceeds its powers in dismissing an

indictment for prosecutorial misconduct not prejudicial to the

defendant.”

Bank of Nova Scotia v. United States, 487 U.S. 250,

255 (1988).

In this case, even if the June 1, 2014 email violated

defendant’s rights, the error was harmless.

As the district court

found, petitioner’s crimes “had already been committed” when the

email was sent.

Pet. App. 27a; see id. at 30a n.1.

Accordingly,

petitioner would not be entitled to relief even if this Court

decided in his favor the issue he presents.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

ALEXANDER P. ROBBINS

Attorney

MARCH 2018