Opposition Brief — Nicholas Young, Petitioner v. United States

Supreme Court briefJul 17, 2019

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No. 18-1443

In the Supreme Court of the United States

NICHOLAS YOUNG, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN C. DEMERS

Assistant Attorney General

DANIELLE S. TARIN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court abused its discretion in

determining that certain evidence of petitioner’s “interest in radical, anti-Semitic, terrorist causes,” offered by

the government to rebut an affirmative defense of entrapment by showing predisposition to materially support terrorist causes, was admissible under Federal

Rules of Evidence 401 and 403.

2. Whether the evidence was sufficient to support

the jury’s finding that petitioner was not entrapped.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (E.D. Va.):

United States v. Young, No. 16-cr-265 (Feb. 23, 2018;

June 21, 2019)

United States Court of Appeals (4th Cir.):

United States v. Young, No. 18-4138 (Feb. 21, 2019)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:

Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & Aroostock R.R., 389 U.S. 327 (1967) ............. 7

Cutter v. Wilkinson, 544 U.S. 709 (2005) .............................. 8

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916)................................................................ 7

Jacobson v. United States, 503 U.S. 540 (1992) .............. 9, 11

Major League Baseball Players Ass’n v. Garvey,

532 U.S. 504 (2001)................................................................ 7

Mathews v. United States, 485 U.S. 58 (1988) ...................... 9

Sherman v. United States, 356 U.S. 369 (1958).................... 9

Sprint/United Mgmt. Co. v. Mendelsohn,

552 U.S. 379 (2008).............................................................. 11

United States v. Blankenship, 775 F.2d 735

(6th Cir. 1985) ................................................................ 13, 14

United States v. Bramble, 641 F.2d 681

(9th Cir. 1981) ................................................................ 13, 14

United States v. Cromitie, 727 F.3d 194

(2d Cir. 2013), cert. denied, 135 S. Ct. 53,

and 135 S. Ct. 54, and 135 S. Ct. 56 (2014) ....................... 13

United States v. Harvey, 991 F.2d 981

(2d Cir. 1993) ................................................................. 12, 13

United States v. Hollingsworth, 27 F.3d 1196

(7th Cir. 1994) ................................................................ 15, 16

(III)

Cases—Continued:

Page

United States v. Jones, 976 F.2d 176 (4th Cir. 1992),

cert. denied, 508 U.S. 914 (1993) ......................................... 4

United States v. LaChapelle, 969 F.2d 632

(8th Cir. 1992) ...................................................................... 13

United States v. McLaurin, 764 F.3d 372

(4th Cir. 2014), cert. denied, 135 S. Ct. 1842,

and 135 S. Ct. 1843 (2015) .................................................... 4

United States v. Russell, 411 U.S. 423 (1973) ....................... 9

United States v. Williams, 504 U.S. 36 (1992) ............... 8, 14

Constitution, statutes, and rules:

U.S. Const. Amend. I .............................................................. 8

18 U.S.C. 1512(c)(2) ............................................................. 2, 4

18 U.S.C. 2339B (2012 & Supp. V 2017) ............................ 1, 4

Fed. R. Evid.:

Rule 401 .................................................................. 4, 5, 8, 9

Rule 402 .............................................................................. 8

Rule 403 .......................................................... 4, 6, 8, 10, 11

Sup. Ct. R. 10 ......................................................................... 12

In the Supreme Court of the United States

No. 18-1443

NICHOLAS YOUNG, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-38a)

is reported at 916 F.3d 368. The orders of the district

court are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 21, 2019. The petition for a writ of certiorari

was filed on May 16, 2019. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Virginia, petitioner

was convicted on one count of attempting to provide material support to the Islamic State of Iraq and the Levant (ISIL), a designated foreign terrorist organization,

in violation of 18 U.S.C. 2339B (2012 & Supp. V 2017),

as well as two counts of attempting to obstruct justice,

(1)

in violation of 18 U.S.C. 1512(c)(2). Judgment 1. The

district court sentenced petitioner to 180 months of imprisonment, to be followed by 15 years of supervised release. Judgment 2-3. The court of appeals affirmed the

material-support conviction, vacated the obstruction

convictions, and remanded the case for resentencing.

Pet. App. 2a.

1. In 2010, the Federal Bureau of Investigation

(FBI) opened a counterterrorism investigation into petitioner, a police officer with the Washington Metropolitan Area Transit Authority, after someone with connections to petitioner had been arrested for attempting

to provide material support to a foreign terrorist organization. Pet. App. 3a. During that investigation, petitioner told an undercover agent that he was wary of FBI

surveillance, that he had taken steps to thwart that surveillance, and that he had “the skills needed * * * to

attack an FBI or a federal office.” Ibid. Investigators

also observed petitioner travel to and from Libya. Ibid.

The investigators could not determine the purpose of

petitioner’s trips, and the undercover agent’s contact

with petitioner ceased in April 2012. Ibid.

In 2014, the FBI again began observing petitioner

after petitioner met an FBI informant. Pet. App. 3a.

The informant expressed interest in traveling to Syria

to join ISIL, and petitioner in turn offered advice about

how to evade government authorities while doing so.

Ibid. For example, petitioner volunteered to send the

informant a text message that would falsely suggest

that the purpose of the informant’s trip was vacation rather than joining ISIL. Id. at 3a-4a. Later that year,

after the trip, petitioner sent the prearranged text message: “Hope you had a good vacation. If you want to

grab lunch . . . hit me up.” Id. at 4a (citation omitted).

At that point, the informant’s participation in the investigation ended, and two FBI agents began impersonating the informant through his email account. Pet.

App. 4a. In emails to that account, petitioner made it

clear that he believed that the informant had joined

ISIL. Ibid. Petitioner asked the informant to mention

petitioner to Libyan ISIL members, and petitioner said

that he “had been in Libya with the Abu Salem Martyrs’

Brigade, a militia group with connections to al Qaeda.”

Ibid. Petitioner also sent emails to his contacts in the

Abu Salem Martyrs’ Brigade. Ibid.

In December 2015, FBI agents interviewed petitioner. Pet. App. 4a-5a. During those interviews, petitioner falsely denied that he had the informant’s contact

information, that he had recently been in contact with

the informant, and that he knew anyone who had given

the informant travel advice. Id. at 5a. After the interview, petitioner emailed the informant to tell him about

the FBI’s questions. Ibid.

In 2016, petitioner began communicating with the informant through encrypted messages. Pet. App. 5a. In

those encrypted messages, the informant explained that

petitioner could help ISIL by sending “Google gift

cards,” so that the terrorist group could buy encryptedmessaging services through which they could communicate with recruits. Ibid. Petitioner accordingly sent

$245 in Google gift cards to the informant. Ibid. When

the informant confirmed that he had received the gift

cards, petitioner stated that he was “glad” and that he

would dispose of the device that he had been using to

communicate with the informant. Ibid.

In August 2016, petitioner was arrested. Pet. App.

5a. Agents executing a search warrant found “militant

Islamist, Nazi, and white supremacist paraphernalia as

well as weapons” in his home. Ibid.

2. A grand jury indicted petitioner on one count of

attempting to provide material support to ISIL, in violation of 18 U.S.C. 2339B (2012 & Supp. V. 2017), on account of the gift cards, and two counts of obstruction of

justice, in violation of 18 U.S.C. 1512(c)(2). Pet. App.

5a-6a.

In response to the material-support charge, petitioner asserted an affirmative defense of entrapment.

Pet. App. 7a. That defense required him first to demonstrate that the government induced him to engage in the

criminal activity, see United States v. McLaurin, 764

F.3d 372, 379-380 (4th Cir. 2014), cert. denied, 135 S. Ct.

1842, and 135 S. Ct. 1843 (2015), after which the burden

would shift to the government to prove beyond a reasonable doubt that he was predisposed to engage in the

criminal conduct, see United States v. Jones, 976 F.2d

176, 179 (4th Cir. 1992), cert. denied, 508 U.S. 914

(1993). To prove petitioner’s predisposition to provide

material support to a designated foreign terrorist organization, the government moved to admit evidence of

petitioner’s “interest in radical, anti-Semitic terrorist

causes.” Pet. App. 7a. That evidence included “Nazi

and white supremacist paraphernalia seized from [petitioner’s] home, expert testimony regarding the ‘convergence’ of Nazism and militant Islamism, and testimony

about [petitioner’s] prior support for such causes.” Id.

at 7a-8a.

Before trial, petitioner moved to exclude the Nazi

and white supremacist paraphernalia, contending that

the evidence was irrelevant (in violation of Federal Rule

of Evidence 401) and unfairly prejudicial (in violation of

Federal Rule of Evidence 403). D. Ct. Doc. 117 (Sept.

24, 2017). The district court denied the motion in relevant part. D. Ct. Doc. 131 (Oct. 27, 2017). The court

found that the evidence was relevant to petitioner’s predisposition to support ISIL because Nazism and militant Islamism share the common aim of anti-Semitism.

C.A. App. 134-140. The court also found that the probative value of the evidence was not substantially outweighed by the prejudice to petitioner. To minimize the

risk of prejudice, however, the court required the government “to appropriately reduce the amount of cumulative evidence.” Id. at 139.

Before the submission of the case to the jury, petitioner moved for a judgment of acquittal. Pet. App. 41a42a. The district court denied that motion, finding

“more than enough evidence at th[at] point, drawing all

inferences in favor of the government, * * * that the

defendant attempted to provide material support to a

designated foreign terrorist organization.” Ibid.

The jury found petitioner guilty on all three counts.

Pet. App. 6a. The district court sentenced petitioner to

180 months of imprisonment. Ibid.

3. The court of appeals affirmed the materialsupport convictions, reversed the obstruction convictions, and remanded for resentencing. Pet. App. 1a-38a.

As relevant here, the court of appeals determined

that the district court did not abuse its discretion by admitting petitioner’s Nazi and white supremacist paraphernalia. Pet. App. 12a. In rejecting petitioner’s contention that the evidence was not relevant under Rule

401, the court of appeals explained that the assertion of

an entrapment defense “increase[s] the scope of the relevant evidence,” because “ ‘a broad swath of evidence,

including aspects of the defendant’s character and criminal past, [is] relevant to proving predisposition.” Id. at

12a-13a (citation omitted). The court found that petitioner’s Nazi and white supremacist paraphernalia were

probative of both his “predisposition to support” ISIL

and “the length of such a predisposition,” because “Nazism and militant Islamism share common ground—

specifically, radical, anti-Semitic viewpoints.” Id. at

13a. And in rejecting petitioner’s contention that the

evidence was unfairly prejudicial under Rule 403, the

court found that the high probative value of the evidence “meant that any prejudicial effect was not unfair.” Id. at 14a-15a. The court also determined that

“any prejudicial effect was blunted by the district

court’s limiting instructions to the jury, which specifically cautioned” that the jury could not convict petitioner for his views or for possessing Nazi and antiSemitic literature. Id. at 15a.

The court of appeals also rejected petitioner’s remaining challenges to the material-support conviction.

Pet. App. 12a-16a. But the court found the evidence insufficient to sustain the obstruction convictions. Id. at

26a-37a. The court accordingly remanded the case for

resentencing. Id. at 37a-38a.

4. On remand, the district court resentenced petitioner to 180 months of imprisonment. Resentencing

Judgment 2.

ARGUMENT

Petitioner contends (Pet. 11-20) that the district

court abused its discretion by admitting evidence of his

Nazi and white supremacist paraphernalia, arguing that

the possession of such materials is lawful and constitutionally protected. Petitioner also contends (Pet. 20-29)

that the government presented insufficient evidence to

support the jury’s finding of entrapment. The petition

is interlocutory and should be denied on that basis. In

any event, petitioner did not present either of his contentions in the court of appeals, and the court did not

address them. Nor does the decision below conflict with

any decision of this Court or of any other court of appeals. Further review is unwarranted.

1. As a threshold matter, the decision below is interlocutory, a fact that by itself “furnishe[s] sufficient

ground for the denial” of the petition, Hamilton-Brown

Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916);

see Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & Aroostock R.R., 389 U.S. 327, 328 (1967)

(per curiam). Although the court of appeals affirmed

petitioner’s conviction on the material-support count, it

reversed his convictions on the obstruction counts, and

remanded the case to the district court for resentencing. Pet. App. 26a-37a. The district court resentenced

petitioner and issued a revised judgment, from which

petitioner has appealed. See Resentencing Judgment;

D. Ct. Doc. 257. After the court of appeals resolves petitioner’s pending appeal from the district court’s revised judgment, petitioner will have an opportunity to

raise the claims pressed here, in addition to any claims

arising from the disposition of his second appeal, in a

single petition for a writ of certiorari. See Major

League Baseball Players Ass’n v. Garvey, 532 U.S. 504,

508 n.1 (2001) (per curiam) (noting this Court’s “authority to consider questions determined in earlier stages of

the litigation where certiorari is sought from” the most

recent judgment). No justification exists in this case to

depart form this Court’s usual practice of declining to

review interlocutory petitions.

2. Even if this case were not interlocutory, a writ of

certiorari would not be warranted to review petitioner’s

contention that the district court abused its discretion

by determining that petitioner’s Nazi and white supremacist paraphernalia were admissible under Federal Rules of Evidence 401 and 403.

a. Petitioner’s contention is not properly before this

Court, because it was “not pressed or passed upon below.” United States v. Williams, 504 U.S. 36, 41 (1992)

(citation omitted). Petitioner contends in this Court

that his Nazi and white supremacist paraphernalia were

inadmissible because they were “lawful” and “protected

by the First Amendment.” Pet. 14, 16 (citation omitted)

In the district court, however, petitioner argued only

that the material was “irrelevant,” asserting “differences between Nazism and radical Islamism,” and “unfairly prejudicial,” asserting that it was “likely to inflame and upset a jury.” D. Ct. Doc. 117-1, at 10, 18

(Sept. 24, 2017). Petitioner repeated (Pet. C.A. Br. 3843) those arguments in the court of appeals. In neither

court did petitioner contend that the material was inadmissible under Rules 401 and 403 because it was lawful

or protected by the First Amendment. Cf. id. at 38 (relying on the First Amendment only in the context of a

different argument regarding the validity of the search

and seizure). Neither court, therefore, addressed that

contention. Petitioner identifies no sound reason for

this Court—which is “a court of review, not of first

view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005)—to address that contention in the first instance.

b. In any event, as the court of appeals correctly recognized, petitioner’s challenges to the district court’s

evidentiary rulings are without merit.

Relevant evidence is generally admissible in a federal case. Fed. R. Evid. 402. Evidence is relevant when

“it has any tendency to make a fact [of consequence]

more or less probable than it would be without the evidence.” Fed. R. Evid. 401. The relevance of physical

evidence does not turn on whether the possession of

that evidence was lawful. For example, a defendant’s

clothes would be relevant evidence—even though the

possession of clothes is legal—if matching fibers were

found at the crime scene.

The scope of relevant evidence depends on the

charges and affirmative defenses at issue in the case.

The affirmative defense of entrapment has two components: government inducement of the crime and a lack

of predisposition on the part of the defendant. See

Mathews v. United States, 485 U.S. 58, 62-63 (1988).

Once a defendant shows that the government induced

him to engage in criminal activity, the burden shifts to

the government to prove beyond a reasonable doubt

that the defendant was predisposed to commit the offense conduct. Jacobson v. United States, 503 U.S. 540,

549 (1992). Predisposition—which refers to the intent

of the defendant to commit the crime, see United States

v. Russell, 411 U.S. 423, 429 (1973)—“focuses upon

whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself

of the opportunity to perpetrate the crime.” Mathews,

485 U.S. at 63 (quoting Sherman v. United States,

356 U.S. 369, 372 (1958)). Thus, as the court of appeals

correctly recognized, “a broad swath of evidence, including aspects of the defendant’s character and criminal past, [may be] relevant to proving predisposition.”

Pet. App. 13a (citation omitted). For that reason, “advancement of the entrapment defense increase[s] the

scope of the relevant evidence.” Id. at 12a.

On the facts of this case, both courts below correctly

determined that petitioner’s possession of Nazi and

white supremacist paraphernalia and his interest in

radical, anti-Semitic causes were relevant to proving

predisposition. See Pet. App. 13a-14a; C.A. App. 134140. As the court of appeals explained, that evidence

tends to make it more probable that petitioner was

predisposed to support terrorist activity, because “Nazism and militant Islamism share common ground—

specifically, radical, anti-Semitic viewpoints.” Pet. App.

13a. That evidence was also “probative of * * * the

length of such a predisposition.” Ibid. That factbound

determination does not warrant further review.

Both courts below also correctly determined that evidence of petitioner’s interest in radical, anti-Semitic

causes was admissible under Federal Rule of Evidence

403. That rule provides that a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. As the

court of appeals explained, “the evidence was highly

probative of [petitioner’s] particular predisposition to

support ISIL,” and “[t]his highly probative value meant

that any prejudicial effect was not unfair.” Pet. App.

14a-15a. In addition, the court observed that “any prejudicial effect was blunted by the district court’s limiting

instructions to the jury,” which cautioned the jury to

consider the evidence for predisposition purposes only,

and not to convict petitioner simply “ ‘for possessing

Nazi or anti-Semitic literature.’ ” Id. at 15a (citation

omitted). At a minimum, it was not an abuse of discretion for the district court to determine that, in these circumstances, the probative value of the evidence was not

“substantially outweighed” by the danger of unfair

prejudice. Fed. R. Evid. 403 (emphasis added); see, e.g.,

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,

384 (2008) (“[C]ourts of appeals should uphold Rule 403

rulings unless the district court abused its discretion.”).

Again, the court of appeals’ factbound determination

does not warrant further review.

c. Petitioner errs in contending (Pet. 13-20) that the

decision below conflicts with this Court’s decision in Jacobson, supra. Petitioner suggests that, under Jacobson, evidence of lawful activity is inadmissible to prove

predisposition to commit a crime. But Jacobson involved the sufficiency rather than the admissibility of

evidence. In that case, a defendant raised an entrapment defense against a charge of knowingly receiving

child pornography, and the government offered proof

that the defendant had previously received pornography at a time when it was lawful to do so. Jacobson,

503 U.S. at 550-551. The Court concluded that the government had failed to satisfy its burden of proof, explaining that “[e]vidence of predisposition to do what

once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal.” Id. at 551. The

Court did not address the admissibility of such evidence

at trial, only the sufficiency of such evidence to “prove

[predisposition] beyond a reasonable doubt.” Id. at 551

n.3. In this case, the government did not rely solely on

evidence of petitioner’s interest in anti-Semitic causes

to establish predisposition. The government also relied

on evidence that petitioner traveled to Libya where he

fought with a militia group that had connections to al

Qaeda and that had been fighting Muammar al Qaddafi’s regime; that petitioner provided advice to an informant about joining ISIL; and that petitioner attempted to evade and then to mislead law-enforcement

officers about his contacts with the informant. See Pet.

App. 3a-5a.

Petitioner also suggests (Pet. 15-20) that, under Jacobson, evidence offered for the purpose of showing a

defendant’s generally bad character is inadmissible.

Even if that reading of Jacobson were correct, the decision below would not conflict with it. The government

offered evidence of petitioner’s interest in anti-Semitic

causes to show that petitioner was predisposed to provide support to ISIL, not to show bad character. See

Pet. App. 13a-14a. And, as the court of appeals determined, that evidence was “highly probative” of petitioner’s predisposition to support ISIL because the terrorist group shares an anti-Semitic viewpoint. Id. at

13a-15a. In any event, petitioner’s factbound claim that

the court misapplied Jacobson would not warrant this

Court’s review. See Sup. Ct. R. 10.

d. Finally, petitioner also errs in contending (Pet.

14-15) that the decision below conflicts with the decisions of other courts of appeals. In none of the five cases

that petitioner cites (ibid.) did the court determine that

evidence of lawful activity is inadmissible to prove predisposition.

In United States v. Harvey, 991 F.2d 981 (1993), the

Second Circuit reversed a conviction for the knowing

receipt of child pornography, where the prosecutor had

“gratuitously presented” X-rated videotapes that depicted “gross acts involving human waste, and people

engaging in bestiality and sadomasochism.” Id. at 996997. That decision rested on the Second Circuit’s conclusion that the videotapes “did not bear on the disputed

trial issues” in that particular case; the decision did not

rest on a categorical rule precluding admission of evidence of lawful activity in all circumstances. Id. at 996.

Indeed, the court of appeals recognized that the district

court had properly admitted evidence of “simulated

child pornography” that was relevant to issues at trial,

even though possession of such materials was lawful.

Id. at 995. And in the other Second Circuit case petitioner cites (Pet. 15), United States v. Cromitie,

727 F.3d 194 (2013), cert. denied, 135 S. Ct. 53, and

135 S. Ct. 54, and 135 S. Ct. 56 (2014), the court determined that the defendant’s (lawful) statements—that he

wanted to die like a martyr and “do something to

America”—revealed a preexisting design to commit terrorist acts against U.S. interests and thus were relevant

to establish predisposition. Id. at 212-215.

In United States v. LaChapelle, 969 F.2d 632 (1992),

the Eighth Circuit concluded that evidence of a lawfully

received videotape of a “sexually active” minor should

have been excluded. Id. at 638. The court’s decision

rested on its conclusion that, in the “situation” at issue

there, which was factually similar to Jacobson, the video’s

probative value was “greatly diminished” and “the

video’s prejudicial effects * * * outweigh[ed] its probative value.” Ibid. In contrast, in this case, the court of

appeals found that the probative value of the evidence

was high, and that the district court had diminished the

risk of undue prejudice by giving a limiting instruction.

Pet. App. 14a-15a.

Finally, United States v. Blankenship, 775 F.2d 735

(6th Cir. 1985), and United States v. Bramble, 641 F.2d

681, 683 (9th Cir. 1981), reflect the principle that the

government must show that the defendant was predisposed to commit the crime that was charged, not that he

was predisposed to commit “criminal acts generally.”

Blankenship, 775 F.2d at 739. The Sixth and Ninth Circuits applied that principle to conclude that evidence of

a previous crime ordinarily shows a defendant’s predisposition to commit the charged offense only if the crime

and charged offense are “similar,” Bramble, 641 F.2d at

682, or “substantially similar,” Blankenship, 775 F.2d

at 739. Neither Blankenship nor Bramble held that evidence of a similar previous crime is a prerequisite to

finding criminal predisposition in the context of an entrapment defense. And in this case, the evidence did

show that petitioner was predisposed to commit the specific crime that was charged, because, as the court of

appeals explained, Nazism and militant Islamism share

“radical, anti-Semitic viewpoints.” Pet. App. 13a.

3. A writ of certiorari also is not warranted to review

petitioner’s contention (Pet. i) that the government presented insufficient evidence to convict him on the theory

that a defendant can be considered predisposed to commit a crime only if, without the government’s help, he

would have had the resources or expertise necessary to

carry out that crime.

a. As with his evidentiary contention, petitioner’s

sufficiency contention is not properly before this Court,

because it was “not pressed or passed upon below.”

Williams, 504 U.S. at 41 (citation omitted). Petitioner

did not argue in the court of appeals that the predisposition element of entrapment contains both an “objective” and a “subjective” component. See Pet. C.A. Br.

36-58. And the court did not address that issue. Petitioner identifies no sound reason for this Court to address that contention in the first instance.

b. Petitioner argues (Pet. 20-29) that the Court

should grant a writ of certiorari to resolve a conflict

among the courts of appeals about whether a defendant

can be considered “predisposed” to commit a crime if,

without the government’s help, he would have lacked

the resources or expertise necessary to carry out his

scheme. This case, however, does not implicate the conflict that petitioner asserts. For one thing, the court of

appeals’ opinion does not address the issue involved in

that conflict; as just explained, petitioner did not raise

the issue below. Indeed, petitioner himself describes

the conflict as a disagreement between the “Seventh,

First, and Fifth Circuits” on the one hand, Pet. 20 (emphasis omitted), and the “Second and Ninth Circuits” on

the other, Pet. 23—omitting the Fourth Circuit, from

which this case arises.

For another, petitioner would not be entitled to any

relief even under the rule he proposes. Petitioner principally relies (Pet. 21-23) on United States v. Hollingsworth, 27 F.3d 1196 (1994) (en banc), in which the

Seventh Circuit concluded that proving predisposition

requires proving that the defendant was “ ‘ready and

willing’ ” to commit the crime, not only in the traditional

sense of having been amenable to doing so, but also in

the sense of having been “in a position without the government’s help to become involved in illegal activity.”

Id. at 1200, 1206 (citation omitted). The prosecution

here introduced sufficient evidence to satisfy even that

requirement. Independent of any government inducement, and long before a government agent mentioned

Google gift cards to petitioner, petitioner traveled to

Libya where he fought with a militia group with connections to al Qaeda. Pet. App. 3a-4a. Petitioner maintained contact with members of the militia group. Id. at

4a. Petitioner also claimed to possess the skills needed

“to attack an FBI or a federal office.” Id. at 3a. Petitioner was thus “in a position without the government’s

help to become involved in illegal activity,” Hollingsworth, 27 F.3d at 1200, which means that his conviction

should stand even under petitioner’s own rule.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.