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

No. 20-8306

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

PETITIONER’S REPLY BRIEF

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

The Government Concedes that There is a Deep and

Enduring Circuit Conflict with Respect to Whether the

“Inducement” Element of the Entrapment Defense Can Be

Based Upon the Actions of an Unwitting Government Agent . . . . . 1

II.

The Government’s Arguments Against Certiorari are Without

Merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A.

The Government’s Contentions Regarding

Predisposition are Unavailing . . . . . . . . . . . . . . . . . . . . . . . . 4

B.

Contrary to the Government’s Argument, the State

of the Record Related to Inducement Does Not Counsel

Against the Grant of Review . . . . . . . . . . . . . . . . . . . . . . . . . 7

C.

The Derivative Entrapment Theory Does Not Require

that the Government Itself Applied Improper Pressure

on the Defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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TABLE OF AUTHORITIES

Cases

Chapman v. California,

386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Herring v. New York,

422 U.S. 853 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jacobson v. United States,

503 U.S. 540 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mathews v. United States,

485 U.S. 58 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8

United States v. Luisi,

482 F.3d 43 (1st Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,5,9

United States v. Mayweather,

991 F.3d 1163 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Mers,

701 F.2d 1321 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 n.1

United States v. Miguel,

338 F.3d 995 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities

Voltaire, Dictionnaire Philosophique (1764) . . . . . . . . . . . . . . . . . . . . . . . . 2

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INTRODUCTION

While conceding that there exists a deep and enduring circuit conflict

regarding whether the “inducement” element of the entrapment defense can be

based upon the actions of an unwitting government agent, the government

recommends that this Court deny certiorari and permit the disuniformity to

persist for an untold number of years. Four decades is enough. Contrary to the

government’s position, this case provides an excellent opportunity to finally

resolve the issue, and the Court is highly unlikely to encounter a better

occasion to do so any time soon. The petition should be granted.

I.

The Government Concedes that There is a Deep and Enduring

Circuit Conflict with Respect to Whether the “Inducement”

Element of the Entrapment Defense Can Be Based Upon the

Actions of an Unwitting Government Agent

The government agrees that there is a deep, long-running circuit split

regarding whether the “inducement” element of the entrapment defense can be

based upon the actions of an unwitting government agent. Brief for the United

States in Opposition (“U.S. Opp.”) 7-8. In fact, according to the government,

the conflict is as clear as could be, with six circuits on each side. Id.1 The

1

The government cites the Eleventh Circuit’s decision in United States

v. Mers, 701 F.2d 1321 (11th Cir. 1983), but that case technically involved

vicarious entrapment – where a defendant asserts the defense based upon the

entrapment of his or her co-defendant – which is not at issue here. See id. at

1324, 1328, 1340; see also Petition for Writ of Certiorari (“Pet.”) 15 n.3.

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government also concedes that the conflict began nearly forty years ago and

has only become more entrenched over time. Id.

Nonetheless, citing the denial of certiorari in Dong v. United States, 573

U.S. 918 (2014) (No. 13-8801), the government argues that the Court should

also deny review in the case at bar. U.S. Opp. 6. Yet the fact that the circuit

conflict continues seven years after the denial of review in Dong is a reason to

grant review here. Under the government’s own analysis, a critical element

of a major defense in federal criminal law has for decades been treated

inconsistently in the Nation’s twelve regional circuits. The government’s

position – that the Court should allow this profound disuniformity to persist in

the hope that the ideal case will one day come along – ignores the well-worn

maxim that “the perfect is the enemy of the good.” Voltaire, Dictionnaire

Philosophique (1764).

This maxim is particularly apt given the unlikelihood that the Court will

ever see a “perfect” case to resolve the issue. In the circuits in which the

derivative entrapment defense is allowed, there is no reason to believe that the

government will seek review to resolve the conflict – perhaps because the

government is aware that barring such a defense is difficult to justify.

Compare Pet. 16-18 (explaining the problems with the Ninth Circuit’s

derivative entrapment analysis) with U.S. Opp., passim (no attempt to justify

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the complete preclusion of the defense). For instance, the government never

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

despite the fact that the First Circuit’s decision was the most significant

published opinion on the issue in over a decade.

In circuits where the derivative entrapment defense is not permitted, the

Court will get cases – such as the one here – where there are gaps in the

record, for the simple reason that the government moves to preclude the

defense before trial and the defendant is not permitted to develop the defense

at trial. See Pet. 18-19. In such cases, the government will argue – again, as

it does here (U.S. Opp. 11) – that the incomplete record counsels against this

Court’s review.

Under these circumstances, the Court will never get the ideal

opportunity to resolve the deep and entrenched circuit conflict regarding

derivative entrapment. For the reasons stated in the petition and below, this

case provides an excellent opportunity to fix the problem now. Pet. 18-23;

infra at 4-9. The Court should grant review to resolve the conflict once and

for all.

II.

The Government’s Arguments Against Certiorari are Without

Merit

The government argues that “at least three distinct obstacles would have

prevented petitioner from prevailing” with a derivative entrapment defense.

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U.S. Opp. 8. As shown below, none of the government’s three arguments

holds water.

But even the government’s framing of its arguments fails ab initio. The

question is not whether Petitioner would have “prevailed” at trial with the

derivative entrapment defense. A court’s complete denial of the opportunity

to present a legitimate defense theory is structural error that requires reversal.

Herring v. New York, 422 U.S. 853 (1975); see also, e.g., United States v.

Miguel, 338 F.3d 995, 1003 (9th Cir. 2003) (the preclusion of a valid defense

theory “is structural and requires reversal”). Moreover, even if subject to

harmless error analysis, it would be the government’s burden to prove that the

error was harmless beyond a reasonable doubt. Chapman v. California, 386

U.S. 18, 24 (1967).

In any event, the government’s arguments fail on the facts and the law.

A.

The Government’s Contentions Regarding Predisposition

are Unavailing

The government incorrectly contends that Petitioner could not have

shown a lack of predisposition.

First, the government’s argument relies on a mischaracterization of the

facts. The government emphasizes that a search of “petitioner’s properties

uncovered firearms, methamphetamine, and a marijuana-growing operation.”

U.S. Opp. 3; see also id. at 9. In fact, a search of a mobile home belonging to

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Petitioner – which was located on a larger property in Richmond, California

– yielded a single unloaded Glock 22 pistol, a box of ammunition, and

approximately 43.2 grams of methamphetamine. PSR, ¶ 22. No other firearms

were found in the mobile home, and additional firearms found on the larger

property were deemed to belong to other individuals. CR 120-1, at 2. The

government presented no evidence linking Petitioner to the other firearms or

to the marijuana grow, and Petitioner was not held accountable for either at

sentencing. In addition, there was no evidence that Petitioner used the Glock

22 pistol during any drug transaction.2

Second, the government highlights Petitioner’s prior drug convictions.

U.S. Opp. 9. However, the government disregards that the prior convictions

were critical for a Luisi-type entrapment defense, because they were necessary

to explain why Petitioner had been targeted by the DEA since 2001. Pet. 22;

Luisi, 482 F.3d at 58. The government also ignores the remoteness of the prior

convictions and the fact that they would have been consistent with the

defense’s contention that Petitioner, then over 60 years old, no longer wanted

involvement with drugs when he was first approached in 2014 by Mosher (the

unwitting government agent). Pet. 22.

2

The evidence notably shows that the pistol remained in the mobile

home, unloaded, at the time of the final and largest transaction in the sting

operation in April 2015. PSR, ¶¶ 17-18, 22.

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Third, the government relies on methamphetamine found in Phillips’

car in April 2015, after completion of the DEA’s 10-month sting operation.

U.S. Opp. 9. But the key issue was whether the government entrapped Phillips

with respect to the original transactions a year earlier. The government’s

heavy reliance on evidence at the tail-end of the sting operation ignores this

Court’s holding that “the prosecution must prove beyond reasonable doubt that

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

approached by Government agents.” Jacobson v. United States, 503 U.S. 540,

549 (1992) (emphasis added); Pet. 22-23.

Finally, the government disregards evidence proffered by the defense

regarding lack of predisposition.

Pet. 7-8.

Given that proffer, the

predisposition issue was for the jury to resolve during deliberations – and not

for the district court to resolve before trial. See United States v. Mayweather,

991 F.3d 1163, 1181 (11th Cir. 2021) (stating that even a showing on

predisposition deemed “weak, insufficient, inconsistent, or of doubtful

credibility” was sufficient to place the issue before the jury); see also Mathews

v. United States, 485 U.S. 58, 62 (1988) (“The question of entrapment is

generally one for the jury, rather than for the court.”).

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B.

Contrary to the Government’s Argument, the State of the

Record Related to Inducement Does Not Counsel Against

the Grant of Review

The government argues that the derivative entrapment defense would

not have prevailed because “[t]he record . . . contains no evidence that the

undercover agent targeted petitioner. . . .” U.S. Opp. 10. However, any gap

in the evidence was the direct result of the government’s own actions, since –

at the government’s request – Petitioner’s entrapment defense was completely

shut down before trial. ER29-32; CR 87. In fact, defense counsel specifically

requested “leave to put on evidence” regarding entrapment, but the district

judge precluded admission of any evidence related to derivative entrapment

based upon Ninth Circuit precedent. ER030-32. Because the district court

foreclosed the derivative entrapment defense before trial, Petitioner never had

the opportunity to develop the relevant facts that were in the government’s

possession, including with respect to the DEA agent’s specific interactions

with Mosher.

The government argues that the district court properly denied the

entrapment defense because Petitioner failed to proffer before trial proof “to

establish all the elements of the defense.” U.S. Opp. 11-12 (citation and

quotations omitted).

But the defense did proffer evidence as to both

predisposition and inducement, which are the only two elements of an

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entrapment defense.

Pet. 7-8, 19-23; Mathews, 485 U.S. at 63.

The

government ignores much of this evidence, including the fact that the affidavit

filed in support of the criminal complaint indicated that the DEA began

targeting Phillips thirteen years before the sting operation. ER 373. Contrary

to the government’s characterization (U.S. Opp. 10), the affidavit did not

discuss any confidential informant claiming personal knowledge of ongoing

drug trafficking activity by Petitioner.3

In short, any gaps in the record related to inducement do not counsel

against this Court’s review, especially since the Court is unlikely to encounter

a case without similar gaps given the government’s strategy of seeking the

complete preclusion of the derivative entrapment defense before trial. See

supra at 3.

C.

The Derivative Entrapment Theory Does Not Require that

the Government Itself Applied Improper Pressure on the

Defendant

Finally, the government argues that the entrapment defense would have

failed because there was no evidence that the government itself had engaged

3

The confidential informant, “an associate” of Mosher who had “an

extensive criminal history for firearms and narcotics offenses” and who

provided information “in hopes of receiving consideration in a then pending

state narcotics case,” stated only that he had heard from Mosher and other

unnamed “individuals” that Phillips continued to deal in methamphetamine.

ER 373-74. Although the government relies on this multiple hearsay here, it

obviously would have been inadmissible at any trial. Fed. R. Evid. 802.

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in "'improper' pressure to induce the defendant's criminal behavior." U.S.

Opp. 10-11; see also id. at 11 ("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") (emphasis added). The government's

contention misapprehends the nature of the derivative entrapment defense. As

the First Circuit made clear in Luisi, the defense applies if the middleman used

improper pressure, "even if the government did not use improper means to

influence the middleman." Luisi, 482 F.3d at 55. The defense proffered

evidence here that Mosher had used improper pressure by playing on her

friendship with Petitioner and on Petitioner's desperate need for money for his

son's legal defense. ER329-32. Notwithstanding the government's argument,

the derivative entrapment defense does not require any showing that the

government itself applied the pressure directly.

CONCLUSION

To resolve a deep and enduring conflict regarding a key defense in

federal criminal law, a writ of certiorari should issue to review the judgment

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

Dated: September 23, 2021

Respectfully submitted,

~

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ALEXIS HALLER

Attorney for Petitioner,

Donnie Joe Phillips

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