Petition for Writ of Certiorari — Donnie Joe Phillips, Petitioner v. United States

NO. ______________________

IN THE

SUPREME COURT OF THE UNITED STATES

DONNIE JOE PHILLIPS, Petitioner,

VS.

UNITED STATES OF AMERICA, Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALEXIS HALLER

Counsel of Record

LAW OFFICE OF ALEXIS HALLER

7960B Soquel Drive, #130

Aptos, California 95003

(831) 685-4730

ahaller@ahlawoffice.com

Counsel of Record for Petitioner,

DONNIE JOE PHILLIPS

QUESTIONS PRESENTED

Whether the“government inducement” element of the entrapment defense can

be met through the actions of an unwitting government agent.

-i-

LIST OF PARTIES

All parties to this proceeding appear in the caption of the case on the

cover page.

The following additional individuals were defendants in the district

court proceeding:

1.

Gordon Owen Miller

2.

Phyllis Mosher

Mr. Miller also appealed to the United States Court of Appeals for the

Ninth Circuit (Case No. 18-10198).

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TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A.

General Procedural Background. . . . . . . . . . . . . . . . . . . . . . . 3

B.

Background Related to Third-Party Entrapment

Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C.

Ninth Circuit Memorandum Opinion . . . . . . . . . . . . . . . . . . 10

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . 11

I.

Certiorari Should be Granted to Resolve the Recognized

and Persistent Circuit Split with Respect to Whether the

“Government Inducement” Element of the Entrapment

Defense Can Be Based Upon the Actions of an Unwitting

Government Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.

This Case Presents an Excellent Vehicle for the Court to

Resolve the Circuit Split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

-iii-

TABLE OF AUTHORITIES

Cases

Crane v. Kentucky,

476 U.S. 683 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Jacobson v. United States,

503 U.S. 540 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,13,22

Kansas v. Ventris,

556 U.S. 586 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Mathews v. United States,

485 U.S. 58 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,13,21-22

Sherman v. United States,

356 U.S. 369 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Sorrells v. United States,

287 U.S. 435 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Anderton,

629 F.2d 1044 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . 12,14-15

United States v. Brandon,

633 F.2d 773 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 n.2

United States v. Emmert,

829 F.2d 805 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,14

United States v. Jimenez Recio,

537 U.S. 270 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Luisi,

482 F.3d 43 (1st Cir. 2007) . . . . . . . . . . . . 6,12,14,15,16,17,18,21,22

United States v. Martinez,

979 F.2d 1424 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 12,14

-iv-

United States v. Mayfield,

771 F.3d 417 (7th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,22

United States v. Mayweather,

991 F.3d 1163 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Mers,

701 F.2d 1321 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 15 n.3

United States v. Poulsen,

655 F.3d 492 (6th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 n.3

United States v. Russell,

411 U.S. 423 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Squillacote,

221 F.3d 542 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,14

United States v. Thickstun,

110 F.3d 1394 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 8,12,14,16,17

United States v. Valencia,

645 F.2d 1158 (2d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . 6-7,15 n.3

United States v. Washington,

106 F.3d 983 (D.C. Cir. 1997). . . . . . . . . . . . . . 6,11,12,13,14,16-17

Statutes

21 U.S.C. § 841(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

21 U.S.C. § 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Constitutional Provisions

U.S. Const. Amend. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

U.S. Const. Amend. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

-v-

Petitioner Donnie Joe Phillips (“Petitioner” or “Phillips”) respectfully

petitions for a writ of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in Case No. 18-10268.

OPINION BELOW

The unreported opinion of the United States Court of Appeals for the

Ninth Circuit affirming the judgment on appeal is attached as Appendix A.

JURISDICTION

The judgment of the United States Court of Appeals for the Ninth

Circuit was entered on March 25, 2021. This Court has jurisdiction pursuant

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

-1-

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.”

The Sixth Amendment to the United States Constitution:

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.”

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STATEMENT OF THE CASE

A.

General Procedural Background

On April 16, 2015, a federal grand jury returned an indictment against

Donnie Joe Phillips, Gordon Miller (“Miller”), and Phyliss Mosher

(“Mosher”), charging conspiracy to distribute at least 500 grams of

methamphetamine during the period between June 5, 2014 and April 8, 2015

(21 U.S.C. §§ 846 and 841(a)(1)). ER345. The indictment also charged each

defendant with numerous substantive counts of distribution of at least 50

grams of methamphetamine in violation of 21 U.S.C. section 841(a)(1).

ER347, 349, 351, 353-54, 356, 359-60, 362, 364.

On May 9, 2017, Mosher pleaded guilty to the conspiracy charge. CR

45. On January 23, 2018, and pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C), Mosher was sentenced to 180 months imprisonment. ER320.

Phillips and Miller pleaded not guilty. The case against Phillips and

Miller was tried to a jury beginning on January 29, 2018.

On February 7, 2018, the jury returned guilty verdicts against Phillips

on all ten counts charged against him. ER301-05. The jury also returned

guilty verdicts against Miller on five counts, including the conspiracy charge.

ER305-07.

On May 15, 2018, the district court imposed the statutory minimum

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sentence of 240 months imprisonment against Miller. ER071-72.

At a sentencing hearing on July 10, 2018, the district court imposed a

sentence of 300 months imprisonment against Phillips. ER016.

B.

Background Related to Third-Party Entrapment Defense

Agent Brian Nehring had worked as an undercover agent for the DEA

hundreds of times over two decades. ER117. According to the affidavit filed

in support of the criminal complaint and search warrants, Agent Nehring began

receiving information about Phillips’ involvement with methamphetamine in

2001. ER373. Agent Nehring was aware of Phillips’ criminal history, which

included prior methamphetamine convictions. ER373.

In 2014, Agent Nehring was told by an unnamed confidential informant

(“CS#2”) that “Mosher had been very close with Donnie Phillips for many

years and that she had sold [the informant] small amounts of

methamphetamine for several years which she claimed she obtained from

Phillips.” ER374. The informant told Agent Nehring that Phillips’ son “was

incarcerated on then-pending state homicide charges.” ER374.

In May 2014, CS#2 told Mosher that he or she “had a friend from out

of town who wished to purchase a quarter pound of methamphetamine in the

near future.” ER375. Mosher agreed to meet the “friend,” who was Agent

Nehring. ER375.

-4-

On June 5, 2014, Agent Nehring monitored and recorded CS#2's

telephone call with Mosher. ER375. “During the call, CS#2 told MOSHER

that a friend had arrived from out of town and wanted to purchase two ounces

of methamphetamine to examine the quality.”

ER375. Mosher met with

Agent Nehring in the parking lot of My Office Bar on that same date, leading

to the first methamphetamine transaction between the two.

From the outset, Agent Nehring used the cover story with Mosher that

he had a wealthy sister in Alaska and that he would be sending the drugs there

to obtain a better price. ER180. Agent Nehring testified that he used the

“whole the-drugs-are-going-out-of-state thing because everybody loves that.

I love it because people’s greed kind of takes over.” ER181. Agent Nehring

never met or spoke with Phillips or Miller during the events in question; he

only dealt with Mosher. ER183.

According to Agent Nehring, Mosher was a meth user who “talked a

mile a minute all the time” and “drove like a maniac.” ER185. Mosher had

“a very strong personality.” ER185. Mosher was also a meth dealer, who had

multiple sources for methamphetamine.

ER185-86.

Agent Nehring

acknowledged that Mosher was not generally a reliable person, and testified

that it was “very possible that [Mosher] was lying about stuff.” ER186.

There was no dispute at trial that, for all but one transaction, Mosher

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obtained the methamphetamine that she sold to Agent Nehring from Phillips.

The government alleged that Phillips, in turn, received the methamphetamine

from Miller. The relevant transactions took place on June 5, 2014 (four

ounces), June 19, 2014 (four ounces), July 31, 2014 (eight ounces), September

11, 2014 (thirteen ounces), and February 4, 2015 (two pounds). There was

also a “buy-bust” operation on April 7, 2015, during which Mosher was

arrested during a three-pound sale to Agent Nehring. ER309. Mosher and

Agent Nehring had planned to do another three-pound transaction on the same

date. ER167, 169-70. Phillips was arrested later on April 7, 2015, with nearly

six pounds of methamphetamine in his car. ER090-93.

During a post-arrest interview on April 7, 2015, “Mosher indicated she

felt bad because she had known Phillips for several years. Mosher stated

Phillips had been kind to her, and now Phillips was in trouble because of her.”

PSR, ¶ 21.

Before trial, the defense proposed a jury instruction related to thirdparty entrapment, on the theory that Phillips “was entrapped by the government

through an unwitting 3rd party[,]” namely Mosher. ER321. In support of the

proposed instruction, the defense relied on out-of-circuit cases, including

United States v. Luisi, 482 F.3d 43 (1st Cir. 2007), United States v.

Washington, 106 F.3d 983 (D.C. Cir. 1997), and United States v. Valencia, 645

-6-

F.2d 1158 (2d Cir. 1980).1

The defense also proffered the signed statements of four witnesses,

including Ratterman, Phillips’ girlfriend. Ratterman stated the following:

I have been [Phillips’] girlfriend since 2010 or 2011. . . .

[Phillips] never used or sold drugs while with me. He was

approached by several people in my presence to do so. He told

them, “no, I’m not going to touch it.”

[Mosher], his long-term friend, approached him repeatedly – I

was present some times – and she kept telling him he could

make a lot of money if he would get drugs for her.

He definitely did not want to do it. His son, Coby, had a death

penalty murder case at that time. Coby needed money to get a

Mr. Horowitz to represent him. His son was desperate; he

needed a good lawyer. [Phillips] kept telling me that he did not

want to get involved with [Mosher], but he also felt worried and

ashamed that he could not contribute to his son’s defense

lawyer.

[Mosher] assured him that after he got money to pay for the

lawyer, they would end it. She talked him into it.

He did it for his son. His family is the most important thing in

the world to him.

ER329.

Two of the other proffered defense statements were from friends of

1

The proffered defense was third-party entrapment based upon

Mosher’s use of improper inducements at Agent Nehring’s behest. Petitioner

did not claim that he was entitled to raise “vicarious entrapment” based on the

theory that Mosher herself was entrapped by Nehring.

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Phillips, who reported recent instances when Phillips refused to use or get

involved with drugs. ER330, 332. One additional statement corroborated that

Phillips was trying to raise a substantial amount of money for his son’s

defense. ER331.

Relying chiefly on the Ninth Circuit’s decisions in United States v.

Thickstun, 110 F.3d 1394 (9th Cir. 1997), and United States v. Emmert, 829

F.2d 805 (9th Cir. 1987), the government opposed the proposed jury

instruction. CR 87.

Before trial, the district court denied the requested defense instruction

on the basis that “the Ninth Circuit cases cited by the government seem to

make it absolutely clear that a derivative entrapment defense is not permitted

in this district court.” ER029. Noting that there were “divided circuits,” the

defense requested “leave to put on evidence” on the entrapment defense, and

stated that the district court should wait “until the end of the case to decide

what instruction [the defense is] going to get.”

ER030. The defense

specifically objected to not being permitted to “at least to put on our defense

and then decide whether or not you’re going to give the instruction.” ER031.

Defense counsel stated that “I proffer to the Court that we did interview

Phyliss . . . Mosher, and she will be corroborating that she participated in

persuading my client to do it.” ER030-31. Relying on Thickstun, Emmert and

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Brandon,2 the district court denied the request and entirely precluded the

entrapment defense. ER031-32.

In his opening statement, defense counsel laid out the facts that had

been proffered on the entrapment issue, stating that they were relevant to

motive. ER073-80.

With respect to most of the witnesses at trial, counsel for Phillips did

not undertake any cross-examination. ER084, 109, 115-16, 195, 218-20, 231,

236, 238, 242-43, 250, 254, 261, 263, 265, 270, 272, 275, 285, 292. The

defense also presented no case-in-chief. ER295.

During trial, the government moved to bar the defense from arguing

motive or encouraging jurors to engage in jury nullification. CR 104. The

defense argued that Phillips’ motive – obtaining funds to hire an attorney for

his son – was relevant to his intent. CR 106-107. The district court denied the

defense request for a motive instruction. ER021-25. In so doing, the district

court explained again why it had denied the third-party entrapment defense:

[T]he Court at the beginning of the trial granted the

government’s objection and did not permit the defense, Mr.

Phillips, to argue derivative entrapment for a number of reasons,

primarily because the Ninth Circuit doesn’t allow it at this point.

But also so the record’s complete, the Court found that request

to be problematic given the facts of this case, underlying facts

of the case, including the lack of any evidence in this case that

Ms. Mosher actually at any point in time worked for or became

2

United States v. Brandon, 633 F.2d 773 (9th Cir. 1980).

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an agent of the government, that in most entrapment cases it

does involve a lack of predisposition on the part of the

defendant, and the Court obviously is aware of the fact that Mr.

Phillips has a prior criminal history involving involvement with

methamphetamine. And again, given the significant number of

separate transactions in this case, it was problematic in terms of

an entrapment defense. So for all those reasons, the Court did

not permit the derivative entrapment defense.

ER 021-22.

In closing argument, defense counsel apologized for not presenting the

witnesses promised in the opening statement. Counsel stated that “the law on

occasion constricts, and the law constrains; and I’m operating sadly under that

premise.” ER296; see also ER299. Defense counsel’s arguments based upon

what Phillips wanted to do with the money were barred by the district court.

ER297-98.

At sentencing, Phillips stated that he had made a major mistake by

agreeing to work with Mosher to obtain money for his son’s criminal defense.

ER012-13.

C.

Ninth Circuit Memorandum Opinion

In its memorandum opinion of March 25, 2021, the Ninth Circuit held

in relevant part as follows:

The district court properly rejected Phillips’s requested

third-party entrapment defense, which was premised on alleged

entrapment by Mosher as an “unwitting middleman.” We have

“consistently held that the entrapment defense is available only

to defendants who were directly induced by government

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agents.” United States v. North, 746 F.2d 627, 630 (9th Cir.

1984) (emphasis added). Targeting a defendant through an

“unwitting agent” does not constitute forbidden inducement if

the agent was not then cooperating with the government. See

United States v. Emmert, 829 F.2d 805, 809 (9th Cir. 1987).

Ninth Circuit Mem. Op., at A5.

REASONS FOR GRANTING THE WRIT

“This case involves a difficult question in the field of entrapment law,

and one on which courts around the country have reached vastly different

conclusions: to what extent is a derivative entrapment instruction merited in

cases where the government acts through an unwitting agent.” United States

v. Washington, 106 F.3d 983, 994 (D.C. Cir. 1997).

The defense of entrapment requires both government inducement of the

crime and lack of predisposition by the defendant. Mathews v. United States,

485 U.S. 58, 63 (1988). This Court’s entrapment precedent has focused on the

predisposition element. See, e.g., Jacobson v. United States, 503 U.S. 540

(1992). Absent guidance from the Court, circuit law related to the government

inducement element has fallen into significant disuniformity. In particular, as

recognized by the D.C. Circuit in Washington, circuit courts have long split on

whether improper inducement conveyed by an unwitting government agent can

give rise to the defense of entrapment. The First, Fifth and D.C. Circuits hold

that third-party entrapment involving an unwitting government agent can give

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rise to a valid defense. United States v. Luisi, 482 F.3d 43, 51-58 (1st Cir.

2007); United States v. Washington, 106 F.3d 983, 992-96 (D.C. Cir. 1997);

United States v. Anderton, 629 F.2d 1044, 1045, 1047 (5th Cir. 1980). The

Fourth, Ninth and Tenth Circuits strongly disagree.

United States v.

Squillacote, 221 F.3d 542, 574 (4th Cir. 2000); Thickstun, 110 F.3d at 1398;

United States v. Martinez, 979 F.2d 1424, 1432 (10th Cir. 1992). The result

is that a fundamental element of a key defense in federal criminal law is

interpreted inconsistently throughout the United States.

The case at bar presents an ideal opportunity to fix this persistent

problem. Despite the defense’s proffer of facts sustaining the third-party

entrapment theory before trial, the district court completely precluded the

defense under Ninth Circuit precedent, thereby leaving Petitioner without any

possible defense at trial. Petitioner thereafter fully preserved the claim both

in the district court and on appeal. This Court should grant certiorari to

resolve a conflict that has long plagued federal criminal law.

I.

Certiorari Should be Granted to Resolve the Recognized and

Persistent Circuit Split with Respect to Whether the

“Government Inducement” Element of the Entrapment

Defense Can Be Based Upon the Actions of an Unwitting

Government Agent

To address a recognized and persistent circuit split with regard to the

viability of the third-party entrapment defense, this Court should grant the

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petition.

“The law . . . forbids convictions that rest upon entrapment.” United

States v. Jimenez Recio, 537 U.S. 270, 276 (2003). A “valid entrapment

defense has two related elements: government inducement of the crime, and

a lack of predisposition on the part of the defendant to engage in the criminal

conduct.” Mathews, 485 U.S. at 63. “The question of entrapment is generally

one for the jury, rather than for the court.” Id.

This Court’s opinions in entrapment cases concentrate on the

predisposition element, with little discussion of the “government inducement”

requirement for entrapment.

See, e.g., Jacobson, 503 U.S. at 549 n.2

(“Inducement is not at issue in this case.”); Sherman v. United States, 356 U.S.

369, 372 (1958), quoting Sorrells v. United States, 287 U.S. 435, 451 (1932)

(stating that “[e]ntrapment occurs only when the criminal conduct was ‘the

product of the creative activity’ of law-enforcement officials”). Without

further guidance from the Court, circuit courts have developed a deep and

enduring split with respect to whether the government inducement element can

be met through the conduct of unwitting government agents. See Washington,

106 F.3d at 994 (stating that different circuits have reached “vastly different

conclusions” about the issue).

Some circuits, like the Ninth Circuit, reject third-party entrapment

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based upon the conduct of individuals unwittingly acting on the government’s

behalf. See Thickstun, 110 F.3d at 1398 (“We now hold explicitly that a

principal wrongdoer, not knowingly working for the government, cannot

entrap his co-conspirator.”); Emmert, 829 F.2d at 808-09; United States v.

Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (“[I]n the Fourth Circuit, a

defendant cannot claim an entrapment defense based upon the purported

inducement of a third party who is not a government agent if the third party is

not aware that he is dealing with a government agent.”); United States v.

Martinez, 979 F.2d 1424, 1432 (10th Cir. 1992) (holding that “without direct

government communication with the defendant, there is no basis for the

entrapment defense”).

By contrast, in other circuits, an entrapment defense can be based upon

inducement conveyed by an unwitting government agent. See United States

v. Luisi, 482 F.3d 43, 51-58 (1st Cir. 2007) (discussing cases and holding that

inducement by an unwitting government agent is sufficient for entrapment

under certain circumstances); United States v. Washington, 106 F.3d 983, 99296 (D.C. Cir. 1997) (concluding “that a limited form of the ‘derivative

entrapment’ theory is recognized in this circuit, and extends to cases in which

unwitting intermediaries—at the government’s direction—deliver the

government’s inducement to a specified third party”); United States v.

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Anderton, 629 F.2d 1044, 1045, 1047 (5th Cir. 1980) (permitting the

entrapment defense where law enforcement officers specifically targeted the

defendant and then put unspecified “pressure” on the unwitting middleman to

bring the defendant into a pre-designed criminal scheme). As formulated by

the First Circuit in Luisi, a defendant is entitled to an entrapment instruction

in a case involving a unwitting middleman when there is evidence that:

(1) a government agent specifically targeted the defendant in

order to induce him to commit illegal conduct; (2) the agent

acted through the middleman after other government attempts at

inducing the defendant had failed; (3) the government agent

requested, encouraged, or instructed the middleman to employ

a specified inducement, which could be found improper, against

the targeted defendant; (4) the agent’s actions led the middleman

to do what the government sought, even if the government did

not use improper means to influence the middleman; and (5) as

a result of the middleman’s inducement, the targeted defendant

in fact engaged in the illegal conduct.

Luisi, 482 F.3d at 55 (footnote omitted).3

3

There is also a circuit split with respect to vicarious entrapment –

where a defendant asserts the defense based upon the entrapment of his or her

co-defendant – but the instant case does not involve this distinct issue. See

United States v. Valencia, 645 F.2d 1158, 1168 (2d Cir. 1980) (“If a person is

brought into a criminal scheme after being informed indirectly of conduct or

statements by a government agent which could amount to inducement, then

that person should be able to avail himself of the defense of entrapment just

as may the person who receives the inducement directly.”); but see United

States v. Poulsen, 655 F.3d 492, 502 (6th Cir. 2011) (“We have explicitly

chosen not to adopt the doctrine of indirect entrapment”); United States v.

Mers, 701 F.2d 1321, 1340 (11th Cir. 1983) (“A defendant cannot avail

himself of an entrapment defense unless the initiator of his criminal activity is

acting as an agent of the government.”) (emphasis in original).

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An examination of the policy justifications identified on both sides of

the circuit split shows that the First, Fifth and D.C. Circuits have the better

approach. For instance, the Ninth Circuit relies on this Court’s statement in

United States v. Russell 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 commit them by the Government.’”

Thickstun, 110 F.3d at 1398, quoting United States v. Russell, 411 U.S. 423,

435 (1973). According to the Ninth Circuit, this “does not apply when one

criminal simply convinces another to join him in criminal enterprise.” Id. at

1399. But the Ninth Circuit’s reasoning ignores the government’s central role

in cases involving unwitting agents. “[I]n a case where the government agent

specifically targets the defendant, and then causes the middleman to take a

specifically contemplated action (that is arguably improper pressure) with the

goal of ensnaring the defendant, the government’s role is hardly attenuated.”

Luisi, 482 F.3d at 56. As explained by the D.C. Circuit:

[T]he purpose behind allowing such a defense is to prevent the

government from circumventing rules against entrapment

merely by deploying intermediaries, only one degree removed

from the officials themselves, who carry out the government’s

explicit instructions to persuade a particular individual to

commit a particular crime using a particular type of inducement.

This purpose could too easily be defeated by allowing the

government to target specific individuals through unwitting

go-betweens.

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Washington, 106 F.3d at 994.

In rejecting the entrapment defense, the Ninth Circuit also relied on the

justification that “[w]ere we to recognize a private entrapment defense, the

evidence necessary for the government to prove predisposition would involve

purely private transactions and conversations between co-conspirators.”

Thickstun, 110 F.3d at 1399. But that is simply not the case. Most of the

relevant evidence would relate to the government’s actions, including the

specific targeting of the defendant, the government agent’s actions through a

middleman after other government attempts at inducement had failed, and the

agent’s request or instruction to the middleman to employ a specific

inducement. Luisi, 482 F.3d at 55. If all of this is established, the fact that the

middleman’s actual use of the inducement would likely involve a private

interaction with the defendant is not a reason to disallow the defense,

especially since that outcome would have been the result of the government’s

own actions in the first place.

Finally, the Ninth Circuit reasoned in Thickstun that third-party

entrapment should be disallowed as a defense to avoid creating “a troubling

inconsistency in the law, because we have rejected the related defense of

‘derivative entrapment.’” Thickstun, 110 F.3d at 1399. According to the court,

“[t]here is no reason to distinguish between a defendant induced to commit

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crime by a self-motivated private person and one induced by an entrapped

private person.” Id. Once again, the Ninth Circuit was far off the mark. With

vicarious entrapment – where one is induced by an entrapped person – there

is no government conduct specifically targeting the defendant at issue. That

is decidedly not the case with third-party entrapment. Luisi, 482 F.3d at 55.

In short, there is a recognized and enduring circuit split with regard to

the defense of third-party entrapment that requires this Court’s intervention to

create uniformity as to an important issue of federal criminal law.

II.

This Case Presents an Excellent Vehicle for the Court to Resolve

the Circuit Split

The case at bar presents an excellent opportunity for the Court to

resolve the circuit split regarding third-party entrapment.

First, this case involves the complete deprivation of the third-party

entrapment defense. The district court shut down the defense before trial, and

Petitioner was not afforded the opportunity to present evidence relevant to the

defense to the jury. The pretrial preclusion of the entrapment defense under

Ninth Circuit law meant that Phillips had no defense, as shown by defense

counsel’s opening statement, his failure to cross-examine most witnesses, his

failure to present a case-in-chief, and his closing argument. In other words,

this is a case where the denial of the entrapment defense resulted in a

prejudicial denial of Petitioner’s Fifth and Sixth Amendment rights, rendering

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it an appropriate vehicle for the Court’s review. See, e.g., Crane v. Kentucky,

476 U.S. 683, 690 (1986) (“the Constitution guarantees criminal defendants

a meaningful opportunity to present a complete defense”); U.S. Const., 5th and

6th Amends.

Second, even without the opportunity to develop a record, the available

evidence demonstrated that the circumstances set forth in Luisi were present

in this case. By the time of the DEA’s sting operation in 2014, Agent Nehring

had already had his sights set on Phillips for 13 years. ER373. In 2014,

Nehring was aware that Phillips’ son “was incarcerated on then-pending state

homicide charges.” ER374. Nehring set up a methamphetamine transaction

with Mosher, believing that Mosher would obtain the drugs from Phillips.

ER375. There was extensive evidence that Nehring played on Mosher’s greed

during the sting operation. The confidential informant who first spoke with

Mosher echoed Agent Nehring’s “whole the-drugs-are-going-out-of-state

thing[,]” which Agent Nehring “love[d] because people’s greed kind of takes

over.” ER 181, RT 503; see also ER 375, CR 1 at 6 (CS#2 telling Mosher

“that a friend had arrived from out of town and wanted to purchase two ounces

of methamphetamine to examine the quality”). There is evidence that Agent

Nehring used Mosher to convey at least one inducement to Phillips during the

sting. See ER 315, Gov’t Exhibit 85A at 4 (“Well talk to your guy.”); ER 316,

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Gov’t Exhibit 85A at 5 (“I’m telling you, we could run numbers down but

definitely-I think you would like it a lot better.”).

Through Catherine Ratterman, Phillips’ girlfriend, the defense proffered

that Mosher induced Phillips to sell her the methamphetamine by approaching

him “repeatedly” and “telling him he could make a lot of money if he would

get drugs for her.” ER329. Ratterman explained that Phillips “did not want

to do it” but that he was “desperate” because his son needed money to get a

good lawyer for his death penalty case. ER329. According to Ratterman,

“[Mosher] assured [Phillips] that after he got money to pay for the lawyer, they

would end it. She talked him into it.” ER329.4

In short, there was evidence supporting the type of third-party

entrapment set forth in Luisi. This evidence was at least enough to allow the

defense to develop additional facts at trial. See United States v. Mayfield, 771

F.3d 417, 440 (7th Cir. 2014) (“In ruling on a pretrial motion to preclude the

entrapment defense, the court must accept the defendant’s proffered evidence

as true and not weigh the government’s evidence against it.”). Given the

evidence indicating the government’s inducement via an unwitting third party,

4

The district court referred to “the lack of any evidence . . . that Ms.

Mosher actually at any point in time worked for or became an agent of the

government” (ER 022, RT 929), but any insufficiency of such evidence in the

record was foreordained once the district court completely barred all evidence

related to entrapment at trial.

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this case presents an excellent vehicle for the Court to resolve the circuit split.

Third, there was also evidence that Petitioner was not predisposed to

commit the offenses. During pretrial proceedings, Phillips presented the

statements of four witnesses relating to his lack of predisposition and the

inducement by Mosher. ER329-32. The statements showed that Phillips had

turned the corner on his involvement with drugs, including methamphetamine,

and that Mosher induced him to participate in the transactions by playing on

their friendship and on Phillips’ desperate need for money for his son’s legal

defense. ER329-32. Even if this showing was deemed “weak, insufficient,

inconsistent, or of doubtful credibility,” it was sufficient to place the issue

before the jury. United States v. Mayweather, 991 F.3d 1163, 1181 (11th Cir.

2021); see also Luisi, 482 F.3d at 58 (finding sufficient evidence of lack of

predisposition, even when the defendant had previously been a cocaine dealer

and continued to receive profits from his associate’s small drug deals).

The district court expressed doubt about Petitioner’s lack of

predisposition, noting Phillips’ prior convictions and the number of

transactions in the case. ER022. However, even if the district court harbored

doubts about the credibility of Petitioner’s proffered evidence related to

predisposition, that was an issue for the jury to resolve, not the judge. See

Mathews, 485 U.S. at 63 (holding that entrapment is generally a question “for

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the jury”); see also Kansas v. Ventris, 556 U.S. 586, 594, n. * (2009) (“Our

legal system ... is built on the premise that it is the province of the jury to

weigh the credibility of competing witnesses.”); Mayfield, 771 F.3d at 440

(stating that a court should accept the defense’s proffered evidence as true and

“not weigh the government’s evidence against it”).

Moreover, assuming the government’s counter-evidence were weighed,

Phillips’ prior drug convictions would have in fact been essential for a Luisitype entrapment defense, since they explained why Agent Nehring had targeted

Phillips since 2001. The prior convictions were also remote in time – the last

ones being from 2005 (PSR ¶¶ 54-55) – and therefore would have been fully

consistent with the defense’s contention that Phillips had changed and no

longer wanted to deal drugs in 2014, when he was over 60 years old. See

Luisi, 482 F.3d at 58 (finding sufficient evidence of lack of predisposition in

case involving prior cocaine dealer, where the defendant claimed that he had

“resolved to stop dealing drugs”). In addition, the fact that the sting operation

ultimately involved multiple transactions did nothing to preclude an

entrapment defense, since the key issue was whether the government entrapped

Phillips with respect to the original transaction. See Jacobson, 503 U.S. at

549 (stating that “the prosecution must prove beyond reasonable doubt that the

defendant was disposed to commit the criminal act prior to first being

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approached by Government agents") (emphasis added) (citation omitted).

Finally, the entrapment issue was fully preserved at all stages, both in

· the district court and on appeal. As a result, there is no waiver or forfeiture

issue that would counsel against the grant of certiorari.

For all of these reasons, this case is an excellent vehicle for the Court

to resolve the persistent and deep circuit split regarding whether a defendant

is entitled to raise an entrapment defense where the inducement was conveyed

through an unwitting government agent.

CONCLUSION

Based upon the foregoing, a writ of certiorari should issue to review the

judgment of the United States Court of Appeals for the Ninth Circuit.

Dated: June 7, 2021

Respectfully submitted,

ALEXIS HALLER

Attorney for Petitioner,

Donnie Joe Phillips

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