Opposition Brief — Donnie Joe Phillips, Petitioner v. United States

No. 20-8306

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DONNIE JOE PHILLIPS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

petitioner,

who

was

recruited

to

supply

methamphetamine by a private individual who unwittingly sold the

drugs to an undercover agent, was entitled to raise a defense of

entrapment.

(I)

ADDITIONAL RELATED PROCEEDINGS

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

United States v. Phillips, No. 15-cr-81 (July 11, 2018)

United States Court of Appeals (9th Cir.):

United States v. Phillips, No. 18-10268 (Mar. 25, 2021)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-8306

DONNIE JOE PHILLIPS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A9) is not

published in the Federal Reporter but is reprinted at 851 Fed.

Appx. 712.

JURISDICTION

The judgment of the court of appeals was entered on March 25,

2021.

The petition for a writ of certiorari was filed on June 7,

2021.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of California, petitioner was convicted

on one count of conspiring to distribute or possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. 846; and ten

counts of distributing methamphetamine, in violation of 21 U.S.C.

841(a)(1).

C.A. E.R. 50; see id. at 2.

He was sentenced to 300

months of imprisonment, to be followed by ten years of supervised

release.

Id. at 51-52.

The court of appeals affirmed.

Pet. App.

A1-A9.

1.

Petitioner

and

his

co-conspirator,

Gordon

participated in a methamphetamine trafficking ring.

Miller,

Pet. App. A2-

A3. As part of the conspiracy, petitioner supplied methamphetamine

to Phyliss Mosher, who in turn sold the methamphetamine to a third

party,

who

–-

unbeknownst

to

Enforcement Agency (DEA) agent.

her

–-

was

an

Id. at A3.

undercover

Drug

On at least six

occasions between June 2014 and April 2015, petitioner supplied

drugs to Mosher, who then provided the drugs to the undercover

agent.

Gov’t C.A. Br. 10-26.

On June 5, 2014, the undercover agent met Mosher at a bar to

negotiate a two-ounce methamphetamine purchase.

10-11.

Gov’t C.A. Br.

In the middle of the meeting, Mosher stated that she needed

to walk down the street to meet her supplier.

Ibid.

Mosher then

met petitioner and they traveled to a nearby residence.

Id. at

3

11. Mosher returned to the bar, sold methamphetamine to the agent,

and offered to obtain two additional ounces later that day.

Ibid.

Petitioner subsequently met Mosher and traveled with her to the

residence,

after

which

petitioner

and

Mosher

drove

to

the

undercover agent’s location and Mosher sold the agent additional

methamphetamine.

Id. at 11-12.

Phone records confirmed calls

between Mosher and petitioner during the relevant period.

Id. at

12.

Petitioner subsequently supplied the drugs for several other

transactions between Mosher and the undercover agent over the

course of the next ten months.

Gov’t C.A. Br. 12-26.

The

arrangement came to an end on April 7, 2015, when petitioner was

arrested

after

providing

Mosher

with

the

initial

three-pound

installment of methamphetamine for what was to be a six-pound sale

to the undercover agent.

Id. at 23.

A search of petitioner’s car

at the time of his arrest revealed seven additional pounds of

methamphetamine

and

20

“burner”

cell

phones.

Id.

at

24-25.

Subsequent searches of petitioner’s properties uncovered firearms,

methamphetamine, and a marijuana-growing operation.

Id. at 25-

26.

2.

A grand jury charged petitioner, Miller, and Mosher with

one count of conspiring to distribute or possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. 846; and ten

counts of distributing methamphetamine, in violation of 21 U.S.C.

4

841(a)(1).

C.A. E.R. 345-367.

The grand jury also charged Mosher

with one additional count of distributing methamphetamine, in

violation of 21 U.S.C. 841(a)(1).

Petitioner

and

Miller

C.A. E.R. 358.

proceeded

to

trial,

but

Mosher

ultimately pleaded guilty to one count of conspiring to distribute

or possess methamphetamine in violation of 21 U.S.C. 846.

E.R. 341.

C.A.

As part of her plea agreement, Mosher acknowledged

participating in drug deals with the undercover agent on six

occasions, and she admitted that she conspired with a charged coconspirator, who “supplied her with methamphetamine sold to the”

undercover agent on multiple occasions.

Id. at 344.

Before his trial, petitioner requested that the district

court instruct the jury on a defense commonly referred to as

“derivative entrapment” -- a defense in which the defendant claims

he was entrapped by a private co-conspirator (in this case, Mosher)

who was dealing directly, but unwittingly, with a government lawenforcement agent.

See C.A. E.R. 321-322; see also United States

v. Emmert, 829 F.2d 805, 808-809 (9th Cir. 1987) (describing the

derivative-entrapment defense).

Petitioner asserted that, at the

time he began supplying Mosher with drugs, he had “left his

criminal past behind” and that he had only agreed to provide Mosher

with methamphetamine to sell to the undercover agent because he

“was desperate for money” to help pay the legal bills of his son,

who was facing state murder charges.

C.A. E.R. 324.

According to

5

petitioner, “Mosher and the government” knew about petitioner’s

desire for money for his son’s defense, ibid., and used that

knowledge to induce petitioner to supply drugs to Mosher.

id. at

325-326.

In an oral ruling before trial, the district court denied

petitioner’s request for a derivative-entrapment instruction and

declined to allow the defense at trial.

21-22.

C.A. E.R. 29-32; id. at

The court observed that “a derivative entrapment defense

is not permitted” under Ninth Circuit case law.

Id. at 29.

And

it explained that, while it was “primarily” precluding petitioner

from offering the defense “because the Ninth Circuit doesn’t allow

it,” the court also found the request “problematic given the facts

of the case.”

Id. at 21-22.

“most entrapment cases

* * *

The court noted, for example, that

involve a lack of predisposition on

the part of the defendant, and the Court obviously is aware of the

fact that [petitioner] has a prior criminal history involving

* * *

methamphetamine.”

Id. at 22.

The court also stated that

“the significant number of separate transactions

problematic in terms of an entrapment defense.”

* * *

was

Ibid.

Following trial, in which “[t]estimony, surveillance, and

telephone records revealed [petitioner] to be the source for

methamphetamine sold by Mosher to the undercover DEA agent,” Pet.

App. A3, the jury found petitioner guilty of the charged offenses,

C.A. E.R. 50.

6

3.

The court of appeals affirmed in an unpublished opinion.

Pet. App. A1-A9.

The court found that “[t]he district court

properly rejected [petitioner’s] requested third-party entrapment

defense, which was premised on alleged entrapment by Mosher as an

‘unwitting middleman.’”

Id. at A5.

entrapment

available

defense

is

The court explained that “the

only

to

directly induced by government agents.”

defendants

who

were

Ibid. (quoting United

States v. North, 746 F.2d 627, 630 (9th Cir. 1984), cert. denied,

470

U.S.

1058

(1985)).

“Targeting

a

defendant

through

an

‘unwitting agent,’” the court continued, “does not constitute

forbidden inducement if the agent was not then cooperating with

the government.”

Ibid. (citing Emmert, 829 F.2d at 809).

ARGUMENT

Petitioner

contends

(Pet.

11-23)

that

this

Court

should

review the unpublished court of appeals decision in order to

resolve a conflict among the courts of appeals concerning the

derivative-entrapment defense.

Although the courts have indicated

some disagreement concerning the availability and scope of such a

defense,

this

case

does

not

present

a

suitable

vehicle

for

resolving any conflict because petitioner’s claim of derivative

entrapment would have failed under the law of any circuit.

This

Court has previously denied review of the question presented, see

Dong v. United States, 573 U.S. 918 (2014) (No. 13-8801), and the

same result is warranted here.

7

A traditional entrapment defense rests on the proposition

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.” United

States v. Russell, 411 U.S. 423, 435 (1973) (emphasis added).

Here, petitioner had no direct interaction with the undercover

law-enforcement agent or any other government agent or entity.

See Pet. App. A5.

Rather, petitioner supplied large quantities of

methamphetamine to his co-conspirator, Mosher, who in turn sold

the drugs to the government agent.

Id. at A3.

Six circuits, including the court of appeals below, have

rejected an extension of the entrapment defense to include socalled “derivative entrapment,” in which the government itself

plays no active role in defendant’s recruitment.

Those courts

have held that, when an undercover agent recruits a middleman who

does not know that he is working for the government, and the

middleman in turn recruits the defendant, the defendant cannot

assert an entrapment defense.

See United States v. Beverly, 723

F.2d

(per

11,

12

(3d

Cir.

1983)

curiam);

United

States

v.

Squillacote, 221 F.3d 542, 573 (4th Cir. 2000), cert. denied, 532

U.S. 971 (2001); United States v. McLernon, 746 F.2d 1098, 1109

(6th Cir. 1984); United States v. Thickstun, 110 F.3d 1394, 13981399 (9th Cir.), cert. denied, 522 U.S. 917 (1997); United States

v. Martinez, 979 F.2d 1424, 1432 (10th Cir. 1992), cert. denied,

8

507 U.S. 1022, and 509 U.S. 913 (1993); United States v. Mers, 701

F.2d 1321, 1340 (11th Cir.), cert. denied, 464 U.S. 991 (1983).

Six circuits have, in varying formulations, recognized a

derivative-entrapment defense.

See United States v. Luisi, 482

F.3d 43, 55 (1st Cir. 2007); United States v. Pilarinos, 864 F.2d

253, 256 (2d Cir. 1988); United States v. Anderton, 629 F.2d 1044,

1047 (5th Cir. 1980); United States v. Hollingsworth, 27 F.3d 1196,

1204 (7th Cir. 1994) (en banc); United States v. Hodges, 936 F.2d

371, 372 (8th Cir. 1991); United States v. Washington, 106 F.3d

983, 993 (D.C. Cir.) (per curiam), cert. denied, 522 U.S. 984

(1997).

this

But disagreement on that issue does not warrant review in

case

because

petitioner’s

proposed

derivative-entrapment

defense would not have been viable even in those circuits that

allow some form of it.

As the district court made clear, petitioner’s attempt to

rely on the derivative-entrapment defense was precluded not only

by Ninth Circuit precedent but also by the “facts of this case”

including

petitioner’s

methamphetamine,”

and

the

“criminal

history

“significant

number

transactions” in which petitioner participated.

involving

of

separate

C.A. E.R. 22.

Indeed, at least three distinct obstacles would have prevented

petitioner

from

prevailing,

even

in

the

circuits

that

recognized some form of a derivative-entrapment defense.

have

9

First, a successful entrapment defense typically requires “a

lack of predisposition

at issue.

* * *

to engage in the criminal conduct”

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

Here,

petitioner had five prior felony convictions for drug crimes and

drug trafficking.

Presentence Investigation Report (PSR) ¶¶ 48,

51, 52, 54, 55.

Petitioner asserts (Pet. 22) that his criminal

history would not have been an impediment because he proffered

evidence that he had abandoned his life of crime until he was

induced to supply drugs to Mosher. But petitioner disregards that,

at

the

time

of

his

arrest,

he

had

seven

more

pounds

of

methamphetamine (well more than Mosher had requested) and 20

“burner” phones in his car, as well as firearms, methamphetamine,

and marijuana plants at one of his properties, all providing strong

evidence that petitioner’s illegal activity extended far beyond

supplying drugs to Mosher for her deals with the undercover agent.

Gov’t. C.A. Br. 25.

Second, those courts of appeals that recognize a derivativeentrapment defense generally do so only where evidence suggests

that the government directed the middleman to recruit a specific

individual.

See, e.g., Luisi, 482 F.3d at 55 (“[T]he law in this

circuit permits an entrapment instruction involving a middleman

when there is evidence that * * * the government agent requested,

encouraged, or instructed the middleman to employ a specified

inducement, which could be found improper, against the targeted

10

defendant.”); Washington, 106 F.3d at 993 (“[W]e conclude 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.”).

The record

here, however, contains no evidence that the undercover agent

targeted petitioner, and it is undisputed that the agent “never

met or spoke” with petitioner “during the events in question.”

Pet. 5. Petitioner’s argument that he was targeted (Pet. 19) rests

on quotations from an affidavit the undercover agent submitted in

support of a criminal complaint and search warrant.

In that

affidavit, the agent explained that he had obtained Mosher’s phone

number from a confidential informant, and that the confidential

informant had also stated that petitioner was Mosher’s friend and

supplier and that petitioner had “continued to supply [drugs to]

multiple

members

of

the

FAIM

gang

while

his

son

incarcerated on then-pending state homicide charges.”

374.

Coby

was

C.A. E.R.

Far from showing that the government directed Mosher to

obtain

drugs

from

petitioner,

the

affidavit

undercuts

an

entrapment defense by indicating that petitioner was supplying

drugs to Mosher and others even before the undercover agent became

involved.

Third,

government

the

entrapment

engages

in

defense

applies

only

where

the

“improper”

pressure

to

induce

the

11

defendant’s criminal behavior.

United States, v. Gendron, 18 F.3d

955, 961-962 (1st Cir.) (Breyer, J.), cert. denied, 513 U.S. 1051

(1994).

To do that, the government must do more than “provid[e]

an ordinary opportunity to commit a crime.”

Id. at 961 (citation

and internal quotation marks omitted); see also United States v.

Nelson, 732 F.3d 504, 514 (5th Cir. 2013), cert. denied, 572 U.S.

1143 (2014).

It must exert “excessive pressure” -- such as

“‘intimidation,’”

“‘threats,’”

“‘forceful

solicitation,’”

or

“play[ing] upon [the] defendant’s sympathy” -- to ensnare “those

who (in its absence) likely would never have” “committed the crime

elsewhere.”

Gendron, 18 F.3d at 961 (citations and internal

quotation marks omitted).

Here, petitioner asserts that Mosher

repeatedly asked him to supply the drugs with the knowledge that

petitioner was “desperate” for money to pay for his son’s defense.

Pet. 20 (citation omitted).

But, even if such pressure were

improper, Mosher’s use of it would not suggest that the government

had engaged in inducements that rose to the level of entrapment.

While

petitioner

attempts

to

excuse

that

and

other

factual

difficulties by asserting (Pet. 20 n.4) that he would have produced

more evidence if the defense had been available to him at trial,

that contention is belied by his inability to describe what that

evidence might have been, and the district court was not required

to allow a speculative defense.

See United States v. Gomez, 6

F.4th 992, 1001 n.7 (9th Cir. 2021) (where “defendant’s offer of

12

proof is insufficient to establish all the elements of the defense

[of

entrapment],

the

district

court

may

preclude

him

from

presenting the defense at trial”)(citations and internal quotation

marks omitted).

In sum, because petitioner has not shown that he could have

presented

a

derivative-entrapment

defense

that

would

have

succeeded in any circuit, this case affords no opportunity to

consider any question of whether a derivative-entrapment defense

should exist.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

SEPTEMBER 2021