Reply Brief — Kenneth Flowers, Petitioner v. United States

Supreme Court briefAug 15, 2018

Ask Donna

What actually matters in this document.

Text

NO. 17-8370

IN THE SUPREME COURT OF THE UNITED STATES

KENNETH FLOWERS, Petitioner,

-vsUNITED STATES OF AMERICA, Respondent.

____________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

____________________________

STEPHEN C. NEWMAN

Federal Public Defender

Ohio Bar: 0051928

CLAIRE R. CAHOON

Ohio Bar: 0082335

Attorney at Law

Office of the Federal Public Defender

617 Adams Street

Toledo, OH 43604

Phone: (419) 259-7370; Fax: (419) 259-7375

Email: claire_cahoon@fd.org

Counsel of Record

TABLE OF CONTENTS

PAGE NO.

Table of Authorities ....................................................................................................... 2

Argument on Reply ........................................................................................................ 3

Conclusion ...................................................................................................................... 8

TABLE OF AUTHORITIES

FEDERAL CASE AUTHORITY

PAGE NO.

Betterman v. Montana, 135 S. Ct. 1609 (2016) ............................................................ 3

Columbe v. Connecticut, 357 U.S. 568 (1961) .............................................................. 4

Hampton v. United States, 425 U.S. 484 (1976) .......................................................... 5

Johnson v. United States, 135 S. Ct. 2551 (2015) ........................................................ 3

Kinsella v. United States, 361 U.S. 234 (1960) ............................................................ 4

Riddell v. Rhay, 404 U.S. 974 (1971) ........................................................................ 4, 5

Sherman v. United States, 356 U.S. 369 (1958) ........................................................... 4

Sorrells v. United States, 287 U.S. 435 (1932) ............................................................. 8

United States v. Flowers, 712 F. App’x 492 (6th Cir. 2017) .................................... 5, 6

United States v. Russell, 411 U.S. 423 (1973) ...................................................... 4, 5, 8

ADDITIONAL REFERENCES

United States v. Flowers, Sixth Circuit Case No. 15-3988, Oral Argument

Audio file, available: http://www.opn.ca6.uscourts.gov/internet/court_

Audio/audSearch.html ........................................................................................ 7

NO. 17-8307

IN THE SUPREME COURT OF THE UNITED STATES

KENNETH FLOWERS, Petitioner,

-vsUNITED STATES OF AMERICA, Respondent.

ARGUMENT ON REPLY

This Court should accept Mr. Flowers’ case for review, because the issue of

whether a defendant can raise sentencing manipulation as a defense to a fake stash

house reverse sting operation designed to include a fictional amount of drugs that

triggers the mandatory minimum sentence is an ripe and critical question of due

process. This Court has noted that during the third phase of the criminal-justice

process, between conviction and sentencing, a defendant’s primary safeguard from

due process violations ”comes from statutes and rules.” Betterman v. Montana, 135

S. Ct. 1609, 1617 (2016).A criminal defendant always possesses a due process interest

in a sentencing proceeding “that is fundamentally fair.” Id. at 1618.Because statutes

are a safeguard at sentencing, this Court explained that statutes are required to

comport “with ordinary notions of fair play and the settled rules of law. . .” Johnson

v. United States, 135 S. Ct. 2551, 2557 (2015).

Yet here it is not the statute, but the artificial manipulations of law

enforcement to satisfy that statute, that violates fundamental fairness. At its core,

due process has to do “with the denial of that ‘fundamental fairness, shocking to the

universal sense of justice.’” Kinsella v. United States, 361 U.S. 234, 246 (1960)

(quoting Betts v. Brady, 316 U.S. 455, 462 (1942)). The impact this Court has in such

cases is real. Where violative police practices are held unconstitutional, this Court

has recognized that law enforcement no longer has an incentive to circumvent those

safeguards. Riddell v. Rhay, 404 U.S. 974, 976 (1971). This Court also acknowledges

the very real balance between society’s need to be protected by the police and its need

to be protected from the police. Columbe v. Connecticut, 367 U.S. 568, 586-87 (1961).

The issue of police overinvolvement in crime is not entirely new to this Court.

Prior decisions have been appropriately cautious about assessing situations of law

enforcement overinvolvement. For example, in evaluating a scenario in which law

enforcement had an informant meet the defendant at a drug treatment office then

seek his assistance in obtaining drugs, Justice Frankfurter wrote in a concurrence,

“The possibility that no matter what his past crimes and general disposition the

defendant might not have committed the particular crime unless confronted with

inordinate inducements, must not be ignored.” Sherman v. United States, 356 U.S.

369, 383 (1958). Pointedly, Justice Frankfurter cautioned that law enforcement

should be allowed to detected those engaged in criminal conduct; however, this Court

should not allow “that in holding out inducements they should act in such a manner

as is likely to induce to the commission of crime only these people who would normally

avoid crime and through self-struggle resist ordinary temptations.” Id.

This Court also looked at overinvolvement when it considered the issue of

police infiltrating an existing crime ring in United States v. Russell, 411 U.S. 423,

431 (1973). This Court held that such involvement, specifically providing things of

value to the ring to allow for continued investigation, was not a due process violation.

The Russell Court reached that conclusion by recognizing that combating existing

narcotics trafficking might require such action and that due process does not foreclose

the technique. Id. at 432.

But here, the police overinvolvement is of a much more sinister variety. It

creates crime where there is none. In his concurring opinion to Hampton v. United

States, 425 U.S. 484, 492-93 (1976) (Powell, J., concurring), Justice Powell wrote to

acknowledge the very real possibility that more brazen investigative techniques could

run afoul of the Due Process Clause. He wrote, “I am not unmindful of the doctrinal

and practical difficulties of delineating limits to police involvement in crime that do

not focus on predisposition. . .” Id. at 494-95. He acknowledged that Russell leaves

open the issue. But this Court in Hampton looked to a confidential informant

supplying drugs for a sale to law enforcement – not a wholly fictional crime invented

by law enforcement to garner a conviction of an otherwise law-abiding person like

Mr. Flowers. Id. at syllabus.

Respondent takes no pains to differentiate the petitioners in its omnibus brief,

perhaps strategically. (Resp. Br., pp. 17-18). Some of the petitioners had prior

criminal records and were predisposed for robbery crimes. But what makes Mr.

Flowers’ petition such a perfect example of a violation of due process is his utter lack

of any predisposition, as he had no prior criminal record of any kind. Judge Stranch’s

concurrence to the Sixth Circuit’s opinion below recognized as much. United States

v. Flowers, 712 F. App’x 492, 509 (6th Cir. 2017) (Stranch, J., concurring) (“In fact,

this sting trapped Flowers, a gainfully employed young man with no criminal

record.”). Without the defense of sentencing manipulation, a defendant liked Mr.

Flowers – poor, black, sorely tempted by a law enforcement invention offering easy

money for little effort – has no recourse. This Court must accept the case on review

for that reason.

While the default government response in criminal petitions to this Court is to

assert the case is mere error correction, Mr. Flowers’ case presents a real, timely, and

increasingly critical question of due process. The Respondent acknowledges that the

Circuits are divided as to whether they recognize the defense of sentencing

manipulation. (Resp. Br., pp. 15-17). 1 The Respondent argues that this Court has

rejected similar petitions in the past.(Resp. Br., p. 15). But Mr. Flowers delineated

for this Court in his petition the turning tide of legal opinion on this law enforcement

practice. That this Court may have rejected similar petitions in the past in no way

undermines the merit of accepting review of this issue now in light of increased

criticism of the practice.

Finally, Respondent mischaracterizes the Sixth Circuit’s ruling below as

declining to recognize sentencing entrapment “because petitioners adduced no

evidence to support any such claim.” (Resp. Br., p. 9). That is incorrect. The opinion

1 The Respondent states in a footnote that Mr. Flowers has abandoned his sentencing

entrapment claim. (Resp. Br., p. 15). Because Mr. Flowers has no predisposition to

commit a crime, he does not now and did not previously advance a claim of sentencing

entrapment – only sentencing manipulation. Therefore, there is no issue of

abandonment of claims here.

below made no decision as to whether Mr. Flowers would be entitled to relief, because

the Sixth Circuit declined to recognized the doctrine of sentencing manipulation.

Flowers, 712 F. App’x at 504. Further, there was a factual dispute at the trial level

regarding whether the amount of fictional drugs listed by law enforcement was

actually an accurate reflection of a typical stash house in Cleveland. The issue was

discussed at oral argument before the Sixth Circuit, as no evidence was presented in

the district court to support law enforcement’s assertion. (See United States v.

Flowers, Sixth Circuit Case No. 15-3988, Oral Argument beginning at 19:56)

(available

online

audio

file

http://www.opn.ca6.uscourts.gov/internet/court_audio/audSearch.html, last visited

Aug. 15, 2018). Therefore, Respondent’s argument that trial testimony supported the

denial of relief even if sentencing manipulation had been recognized is unavailing.

(Resp. Br., p. 19). This Court should accept review.

CONCLUSION

As Justice Douglas stated in his dissent to Russell, 411 U.S. at 439, “Federal

agents play a debased role when they become the instigators of the crime, or partners

in its commission, or the creative brain behind the illegal scheme.” Instead, courts

must be closed to “the trial of a crime instigated by the government’s own agents.”

Sorrells v. United States, 287 U.S. 435 (1932) (Roberts, J., separate opinion).”No

other issue, no comparison of equities as between the guilty official and the guilty

defendant, has any place in the enforcement of this overruling principle of public

policy. Id. Law enforcement has departed from these fundamental principles. Review

is now required.

For all of the foregoing reasons, and for those set forth in the petition, a writ

of certiorari should issue to review the judgment of the United States Court of

Appeals for the Sixth Circuit entered in this case on October 24, 2017 (en banc review

denied December 28, 2017). Due process requires no less.

Respectfully submitted,