Petition for Writ of Certiorari — Richmann v. United States

. Supreme Court, U.S.

A FIL ¢D

‘] FEB 10 1989

Iu the ae.

Suprene Court of the United States

October Term, 1988

No.

UNITED STATES OF AMERICA

DANIEL PAUL RICHMANN

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

STEVEN ANTOLAK

Of Counsel to:

COLICH & CAHILI

:20 Lumber Exchange

10 South Fifth Street

Minneapolis, Minnesota 55-402

(612) 333-7007

Attorney for Petitioner

QUESTIONS PRESENTED

When the Government uses a citizen volunteer as

an undercover drug agent, then decides not to use

that citizen, but fails to inform the citizen of the

termination of his agency, and finally prosecutes

him for drug conspiracy violations for acts

committed during his putative agency, has the

Government violated the citizen’s Due Process

rights?

I.

Did the District Court err when it required

Petitioner to prove that a juror’ extrajudicial

contact was prejudicial without permitting an

interview of the tainted juror?

TABLE OF CONTENTS

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

Daeememree Wer inte CASE.......................... 3

REASONS FOR GRANTING THE PETITION..8

I. Due Process Violations.............. 8

I]. Juror Misconduct..................... 14

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APPENDIX

Ul

TABLE OF AUTHORITIES

Hampton v. United States, 425 U.S. 484 (1976)...9

Mattox v. United States, 146 U.S.140 (1892).....14

Remmer v. United States, 347 U.S. 227

Rochin v. California, 342 U.S. 165 (1952)......... 8

Tanner v. United States, US. , 107

ee PR es csccntavasovnces 18

United States v. Emmert, 829 F.2d 805

ee eo cnéainnkeneceasenaees 9

United States v. Forrest, 620 F.2d 446

es i cecekbchosences 16

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

United States v. York, 830 F.2d 885

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

United States of America,

Respondent,

VS.

Daniel Paul Richmann,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

Daniel Paul Richmann petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit in

this case.

OPINIONS BELOW

Petitioner was convicted of conspiracy to

distribute controlled substances in the District of

Minnesota. Appeal was taken to the Eighth

Circuit Court of Appeals which affirmed the

conviction. The opinion of the Court of Appeals

(Appendix, p.1) is reported at 860 F.2d 837 (8th

Cir. 1988). The District Court’s rulings are not

reported.

JURISDICTION

The judgment of the Court of Appeals

(Appendix, p.14) was entered on October 26,

1988. Petitioner’s petition for rehearing and

rehearing en banc was denied on December 13,

1988 (Appendix, p.15). The jurisdiction of this

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

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V:

“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

ty

public danger; nor shall any person

be subject for the same offence to be

twice put in jeopardy of life or limb;

nor shall be compelled in any

Criminal case to be a witness against

himseif, 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.”

STATEMENT OF THE CASE

On December 19, 1986, Dan Richmann was

the President and Chief Executive Officer of

Ackerson Construction Company. Until that date,

he believed that he was also an undercover drug

informant for the Drug Enforcement

Administration (DEA) Task Force in

Minneapolis. When a search warrant was

executed on December 19, 1986, at his office,

however, he was told that the DEA Task Force

had decided long before not to use him. That was

the first time Dan Richmann learned of any such

decision.

————————————————————

Soon after that search, Dan Richmann was

indicted for Conspiracy to Distribute Controlled

Substances and was tried under the District

Court’s jurisdiction conferred by 18 U.S.C.

§ 3231.

Dan Richmann first started using cocaine in

1978. On May 1, 1980, he was admitted to St.

Mary’s Rehabilitation Center for inpatient

treatment of his addiction. He remained free of

cocaine until November of 1984 when he began

using the drug again. Mr. Richmann’s addiction

deepened into heavier use until he was again

admitted to inpatient treatment in December 1985.

After finishing inpatient treatment, Mr. Richmann

approached the DEA and offered information on

some of the highest placed cocaine dealers in the

Minneapolis/St. Paul area, including Vasilious

Loukas (Bill Loukas), a man who later would be a

co-defendant of Mr. Richmann. Mr. Richmann

had neither been arrested nor charged with any

crime when he approached the DEA.

4

Mr. Richmann met with Sergeant Harry

Baltzer of the DEA Task Force and discussed

setting up drug dealer Bob Tory and accumulating

evidence against drug dealer Bill Loukas. After

these discussions, Mr. Richmann’s reliability as an

informant/undercover agent was established by

setting up a drug purchase in March 1986. Mr.

Richmann introduced an undercover DEA agent

to drug dealer Bob Tory and a one ounce cocaine

purchase was concluded.

A short time after this successful drug buy,

the DEA decided not to use Mr. Richmann as an

informant. The DEA claimed that a confidential

informant had said that Mr. Richmann had

revealed the description and identity of the

undercover agent he had worked with in the Tory

purchase. The DEA, however, did not tell Mr.

Richmann that he would not be used. It was only

on December 19, 1986, when a search warrant

was executed at his place of business that Mr.

Richmann learned of the DEA’s decision.

>

Between March, 1986, when he made the

controlled buy, and December 19, 1986, when the

search warrant was executed, Mr. Richmann

collected evidence against Bill Loukas and kept it

in his office. Mr. Richmann had exchanged small

bills for money orders for Loukas and kept the

receipts in his office. He had a car phone installed

in Loukas’ car and kept the records in his office.

The monthly bills for that phone were also sent to

office. This evidence was seized in the December

19th search, with the aid and cooperation of Mr.

Richmann, and was used against him to prove an

alleged conspiracy with Mr. Loukas.

In June of 1987, Mr. Richmann was

convicted by a jury of conspiring to distribute

cocaine in violation of 21 U.S.C. § 846. After his

conviction, Mr. Richmann discovered that one of

his jurors had discussed the case with a third party

who was either in the jury pool awaiting selection

or was a juror sitting on a different case. As part

of the conversation, the juror from this case stated

6

that Mr. Richmann was being taken advantage of

and taken down the Primrose Lane. Mr.

Richmann’s counsel requested the opportunity to

investigate the matter and to have that juror

testify regarding the entire conversation to see if

the conversation had any prejudicial effect on the

jury. The trial court denied the motion,

primarily because Mr. Richmann had failed to

show any prejudice from the juror’s statement.

Appeal was taken to the United States Court

of Appeals for the Eighth Circuit. The Eighth

Circuit affirmed the judgment of conviction, and

later denied a petition for rehearing and rehearing

en banc.

REASONS FOR GRANTING THE PETITION

I.

DUE PROCESS VIOLATIONS

THE COURT OF APPEALS HAS

DECIDED AN IMPORTANT QUESTION

OF FEDERAL LAW WHICH HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT.

More than 30 years ago, this Court held

that Due Process prohibits convictions based on

Outrageous police conduct: “Convictions cannot

be brought about by methods that offend a sense

of justice.” Rochin v. California, 342 U.S. 165,

173 (1952) (police cannot pump a suspect’s

stomach after the suspect has swallowed drug

capsules). When police conduct “shocks the

conscience,” Id. at 172, a defendant’s Due Process

rights are violated, and dismissal is appropriate.

Since Rochin, the increasing sophistication

of the illicit drug trade has forced the courts to

allow a wide range of police tactics. This Court

has held that law enforcement personnel may

8

infiltrate drug rings and even participate to a

limited extent in unlawful practices. United States

v. Russell, 411 U.S. 423, 432 (1973). Federal

agents may supply the main ingredient to

manufacture a drug, or even the illicit drug itself

to trap suspects. See Russell; Hampton v. United

States, 425 U.S. 484 (1976). Lower courts have

approved the use of large sums of money and

threats by drug agents to accomplish their

objectives. See, e.g., United States v. Emmert,

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

The use of informants in drug enforcement

is, of course, permissible. See United States v.

York, 830 F.2d 885 (8th Cir. 1987). Because the

infiltration of drug rings is critical to effective

law enforcement, the use of informants is not only

permissible, it is indispensable. The indispensable

informant, however, is often in a vulnerable and

dangerous position. Accordingly, the informant

shouid have the right to know his exact status vis a

vis the government. To use a person as an

9

informant, exposing that person to the dangers of

detection, without advising that person when they

are no longer being used by the government, is

inexcusable. To then prosecute the person for

acts committed during his putative agency “shocks

the conscience” and should not be allowed.

These are the factual circumstances the

Petitioner presents to this Court. In December

1985, petitioner approached the DEA and

volunteered information on drug dealers. He

even volunteered to act as an undercover

agent/informant to a limited extent. Petitioner did

this on his own accord, not to earn lenient

treatment on a pending charge as most

informants, but because he had kicked a bad

cocaine habit and wanted to clean up the streets.

The DEA tested Petitioner’s reliability with

a controlled drug buy in March 1986 and agreed

to use him. Soon after, the DEA Task Force

decided not to use Petitioner as an informant after

a confidential informant said that Petitioner had

10

revealed sensitive information to others. The

critical fact in this case is that no one from the

government informed Petitioner that he

would not be used as an informant.

Ignorant of the Government’s decision,

Petitioner continued to associate with drug dealer

Bill Loukas, despite his fear of Loukas. In his

private office, Petitioner collected evidence

against Loukas, creating a “paper trail”

documenting money laundering and other drug

activities. When federal agents searched his office

in December 1986, Petitioner was cooperative

because he believed he was working for the very

people who were confronting him. Throughout

the search, Petitioner asked if the agents had

talked with Harry Baltzer, his contact on the DEA

Task Force. Evidence from that search was used

to convict Petitioner.

This case raises the important question of

whether Due Process requires the Government to

advise an informant that they are no longer being

11

used, that they are “on their own.” This Court

has not addressed this issue yet. Due Process

cases have always discussed what the police may

do when dealing with suspects. The question of

what conduct is permissible vis a vis an informant

has not been addressed. Because an informant is

always in a vulnerable position with respect to

both the Government and the drug kingpins they

are setting up, the informant can be abused easily.

It offends society’s “sense of justice” for the

Government to be as dishonest with its informants

as it is with the suspects. Regardless of an

informant’s criminal intent, Due Process should

require, at a minimum, that the Government

advise the undercover informant that the

Government has withdrawn its protective

umbrella. The reasons for the Government's

decision need not be given, but a simple

“termination notice” should be sent to the

informant.

12

—— he

Petitioner's Due Process issue was raised

and briefed in the Eighth Circuit in the context of

a “sufficiency of the evidence” argument. The

thrust of the argument, however, was that the

conduct of the police was so outrageous that his

conviction was unjust. See Petitioner’s Brief to

the Eighth Circuit Court of Appeals, p. 24 (’Such

conduct should not be tolerated from the

government as a matter of policy, which is why

the defense of entrapment exist: in the first

place.”); Petitioners Memorandum in Support of

Petition for Reconsideration by the Eighth Circuit

Court of Appeais, p. | (“This is an important case

because it calls into question the effect that

government agents’ conduct can have on the issue

of intent.”); Id. at 12 (“Sgt. Baltzer’s conduct in

this relationship was outrageous and

unprofessional.”); Id. at 14 (“Appellant asks this

Court to consider carefully the conduct of the

Drug Enforcement Administration’s agents in this

case in determining whether to review its original

decision.”)

Petitioner respectfully asks this Court to

remedy these serious Due Process violations and

crant review.

IT.

JUROR MISCONDUCT

THE COURT OF APPEALS HAS

SANCTIONED A RADICAL

DEPARTURE FROM PRECEDENT AND

THE USUAL COURSE OF JUDICIAL

PROCEEDINGS BY THE DISTRICT

COURT AS TO CALL FOR AN

EXERCISE OF THIS COURT'S

SUPERVISORY POWERS.

In 1892, this Court held that private

communications between jurors and third persons

are absolutely forbidden. Mattox v. United States,

146 U.S. 140, 150 (1892). After Mattox, this

Court pronounced the following black-letter law:

14

“In a criminal case, any private

communication, contact or

tampering, directly or indirectly with

a juror during trial about the matter

pending before the jury is, for

obvious’ reasons, deemed

presumptively prejudicial....The

presumption is not conclusive, but the

burden rests heavily upon the

government to establish, after notice

to and hearing of the defendant, that

such contact with the juror was

harmless to the defendant.”

Remmer _v. United States, 347 U.S. 227, 229

(1954). (emphasis added). It appears then, in a

claim of third party communication with a juror,

a defendant would satisfy the Remmer standard by

showing: 1) a private communication with a

juror; 2) the communication was during trial; and

3) the communication was about the matter before

the jury.

Petitioner met the Remmer standard. A

character witness for the Petitioner was

approached by a third party who had had contact

with a juror in Petitioner’s trial. The third party

15

eee

said that he had had a conversation with that juror

during the trial. In that conversation, the juror

said that the Petitioner was being led down the

“Primrose Lane” by the Government, an obvious

reference to the merits of the case. The rest of

the conversation is unknown because the third

party could not be identified and the talkative

juror was not brought in to testify.

In evaluating this extraneous contact, the

Eighth Circuit quoted the Remmer standard, but

then added that Petitioner “has not alleged that the

juror was improperly influenced or that

information prejudicial to Richmann was

communicated to the juror.” Remmer in no way

requires a showing of communication of

prejudicial information or improper influence.

See United States v. Forrest, 620 F.2d 446, 457

(Sth Cir. 1980) (“whether the comments are

favorable or unfavorable to the defendant is

immaterial”). The only requirement is that the

defendant show: 1) communication, 2) during

16

trial, 3) about the trial. Petitioner made that

showing. Requiring a greater showing disregards

the presumption of prejudice set forth in

Remmer.

The lower court’s error was compounded

by refusing to allow the defense to call the

offending juror to investigate the possibility of

prejudice. Petitioner is well aware of the

importance of insulating the jury’s deliberative

process. Generally, that interest precludes the

admission of juror testimony to impeach a jury

verdict. Fed. R. Evid. 606(b). The exception to

that rule, however, is when “extrinsic influence”

is alleged, as is here. This Court recently noted

that evidentiary hearings in such cases are

appropriate:

“The Courts holdings requiring an

evidentiary hearing where extrinsic

influence or relationships have

tainted the deliberations do not

detract from, but rather harmonize

with, the weighty Government

17

interest in insulating the jury’s

deliberative process.”

Tanner v. United States, 8. Cera 8

S.Ct. 2739, 2747 (1987). Thus, the lower Courts’

failure to allow (let alone require) an evidentiary

hearing should move this Court to exercise its

Supervisory powers.

In essence, the trial court and the Eighth

Circuit have departed from the accepted and usual

course of judicial proceedings in two ways. First,

the lower courts placed the burden of proving

prejudice on the defendant instead of placing the.

burden of disproving prejudice on the

Government as required by Remmer. Second, the

lower courts compounded the error by not

allowing the Petitioner to call in the offending

juror to investigate the scope of the entire

extraneous communication to show prejudice.

This Court should grant review in the exercise of

its supervisory powers to correct those errors.

18

CONCLUSION

Petitioner respectfully requests that the

Court grant his Petition for Writ of Certiorari to

the United States Court of Appeals for the Eighth

Circuit.

Respectfully submitted,

Steven E. Antolak

Of Counsel to:

COLICH & CAHILL

420 Lumber Exchange

10 South Fifth Street

Minneapolis, MN 55402

(612) 333-7007

Dated: February 9, 1989

APPENDIX

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 87-5369

United States of America, *

—

Appellee, *

x

Vv. * Appeal from the United

* States District Court for

Daniel Paul Richmann, * the District Court of

* Minnesota.

Appellant. °

Submitted: June 16, 1988

Filed: October 26, 1988

Before LAY, Chief Judge, Brown, * Senior Circuit Judge,

and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Daniel Paul Richmann appeals his conviction for

conspiracy to distribute cocaine. We affirm.

“The HONORABLE JOHN R. BROWN, Senior United States Circuit

Judge for the Fifth Circuit, sitting by designation.

PAGE __"_ OF APPENDIX

I. Background

In December of 1985, Richmann, who has a history

of cocaine abuse, contacted a Drug Enforcement

Administration (DEA) agent. He told the agent that he

would be willing to provide the DEA with the names of

many of the large cocaine dealers in the Minnesota Twin

Cities area. In connection with this call, Richmann was

cordacted in February of 1986 by another agent, Sergeant

Harry Baltzer of the DEA Task Force. Richmann and

Baltzer met and it was agreed that Richmann would provide

Baltzer with information about Vasilios (William) Loukas, a

large drug dealer in the area and one of Richmann’s

codetendants.

Initially, in order to test Richmann’s reliability.

Baltzer asked Richmann to arrange the introduction of a drug

dealer to an undercover agent of the DEA. The introduction

was made and the agent purchased a small amount of cocaine

from the dealer. In early March of 1986. Baltzer and the

DEA decided not to use Richmann as an informant in the

PAGE __-_ OF APPENDIX

future. This decision was made after Baltzer learned from

another informant that Richmann had discussed his

involvement with the DEA with persons involved in the drug

business. However, Richmann was not told that he was no

longer working with the DEA. It was felt that to do so

would compromise the informant who had told Baltzer of

Richmann’s activities.

From March of 1986 until his arrest in December of

1986, Richmann continued to associate and deal with

Loukas in the distribution of cocaine. On December 18,

1986, a DEA agent, an agent of the Internal Revenue Service

and an agent of the Federal Bureau of Investigation executed

a search warrant at Richmann’s office. Richmann was

present during the search. As it progressed Richmann

offered a substantial amount of information about his

dealings with Loukas and indicated where in the office

physical evidence of these activities was located. During the

course of the search, Richmann was advised of his Miranda

PAGE _>___ OF APPENDIX

rights after which he continued to provide the officers with

information.

Richmann was later indicted along with three drug

dealers. Following a jury trial, Richmann was convicted of

conspiracy to distribute cocaine in violation of 21 U.S.C. §§

841 and 846 and sentenced to eighteen months

imprisonment.

IT. Discussion

A. Third Party Contact by a Juror

Following his conviction, Richmann filed a motion

for a new trial pursuant to Fed. R. Crim. P. 33 based on

grounds of juror misconduct. Richmann claimed that one of

his character witnesses was approached, aftcr he testified, by

a man in the parking garage adjacent to the courthouse. This

individual allegedly told the witness that he had spoken to

one of the jurcrs and the juror told him that he thought

Richmann was being taken advantage of and “taken down

PAGE _*__ OF APPENDIX

the primrose lane” by the government. Following a hearing

at which the witness related this incident, the court denied

Richmann’s motion for a new trial and his request to

question the individual juror about the incident.

“{A]ny communication with a juror during trial about

a matter pending before the jury is deemed presumptively

prejudicial to a defendant’s right to a fair trial. (Citations

omitted.) This presumption of prejudice is not conclusive,

but ‘the burden rests heavily upon the Government to

establish * * * that such contact with the juror was harmless

to the defendant.” United States v. Delaney, 732 F.2d 639,

642 (8th Cir. 1984) (quoting Remmer v. United States, 347

U.S. 227, 229 (1954)). However, Richmann has not

alleged that the juror was improperly influenced or that

information prejudicial to Richmann was communicated to

the juror. The government asserts, therefore, that since the

juror was not exposed to any improper influence or

prejudicial information, the contact was harmless.

PAGE _>___ OF APPENDIX

Unless there has been an abuse of discretion by the

trial court, we will not set aside the court’s decision to deny

the motion. United States v. Conzemius, 611 F.2d 695,

696 (8th Cir. 1979). We find that the misconduct

complained of, if any, was harmless to Richmann. No

information appears to have been conveyed to any member

of the jury. Rather, if Richmann’s witness is believed, it

appears that this juror was expressing an idea which was

favorable to Richmann. There was no evidence that this

particular juror, or any other member of the panel, had been

exposed to prejudicial information or evidence other than that

which was introduced at the trial. In fact, as indicated, the

comment the juror purportedly made to Richmann’s witness

was beneficial to Richmann and detrimental to the

goverment. Therefore. a new tral was not warranted.

As regards Richmann’s request to question the jun

is generally considered preferable to insulate jury

deliberations. “The policy does not. however. foreclose

testimony by jurors as to prejudical extraneous information

PAGE _S__ OF APPENDIX

or influences injected into or brought to bear upon the

deliberative process.” Scogin v. Century Fitness, Inc., 780

F.2d 1316, 1319 n.S (8th Cir. 1985). There being no

showing, however, that this was the situation, the district

court was correct in not making further inquiry into the jury

deliberations.

B. Inadmissible Evidence

Richmann’s second assignment of error involves the

testimony of Sergeant Baltzer concerning the reason he

discontinued his use of Richmann as a confidential

informant. Baltzer testified at trial that he had received

information from an informant that Richmann had stated at a

party that he had compromised a DEA agent. Baltzer further

testified that Richmann had recited that he had provided

specific information to other drug traffickers about the DEA

agent, including a description of the agent and the agent's

undercover name.

PAGE ____ OF APPENDIX

Richmann objected to the testimony claiming it was

hearsay. In addition, he argued that because his DEA

involvement was a crucial part of his defense, the testimony

was unfairly prejudicial and the prejudice outweighed the

probative value of the testimony. Richmann also claimed

that the admission of the statements of the unidentified

informant violated his sixth amendment right to confront the

witnesses against him. The government argued that the

Baltzer testimony was admissible because it was offered

only to show the state of mind of Baltzer at the time he made

the decision not to use Richmann as an informant, and not

for its truth. The district court ruled that the testimony

should be admitted on that basis and instructed the jury that

they were not to consider the testimony for the truth of the

Statements made by Richmann, but rather to consider it as

relating to why Baltzer acted as he did. Agent Baltzer’s

activities within the context of the entire drug investigation

were proper matters for the jury to evaluate.

“(E]videntiary rulings are reviewed for an abuse of

discretion only * * * ” and Richmann has the burden of

PAGE _2___ OF APPENDIX

showing that the district court abused its discretion in

admitting the testimony of Baltzer. United States v. Janis,

831 F.2d 773, 779 (8th Cir. 1987), cert. denied, 108 S. Ct.

1046 (1988). Since Baltzer’s testimony as to the

informant’s statement was of consequence in the

determination of issues properly before the jury and the

informant’s statement was not hearsay as defined by the

rules of evidence, the evidence was admissible. We also

find, as did the district court, that the evidence was not

unfairly prejudicial nor did it violate Richmann’s sixth

amendment rights.

.. Richmann’s Confession

During the search of his office, Richmann

spontaneously provided extensive information about his

activities with Loukas. About two hours into the search, the

agents advised Richmann of his Miranda rights after which

he repeated much of the information he had already given.

PAGE __°_ OF APPENDIX

Richmann, in a pretrial motion, requested that these

statements be suppressed. The trial court denied the motion.

Richmann claims that the statements he made during

the search were taken in violation of his fifth amendment

right against self-incrimination, in spite of the fact that he

repeated the statements after receiving Miranda warnings.

The Supreme Court in Miranda v. Arizona, 384 U.S. 436

(1966) held that law enforcement officers are required to

advise a suspect of his fifth and sixth amendment rights prior

to a custodial interrogation. The court defined custodial

interrogation as “questioning initiated by law enforcement

otticers after a person has been taken into custody or

otherwise deprived of his freedom of action in any

significant way.” Id. at 444. We find that Richmann was

not in custody during the search of his office. He was never

denied permission to leave the office, nor did he ask to do

so. He was denied permission to contact his wife.

However, that does not constitute a significant deprivation of

his treedom. Evenif Richmann could be considered to have

PAGE —_<__ OF APPENDIX

been in custody during the search, his confession is still

admissible because he voluntarily repeated earlier spontaeous

but unwarned statements after the administration of the

Miranda warnings. Oregon v. Elstad, 470 U.S. 298, 314

(1985).

D. Sufficiency of the Evidence

In order to convict Richmann of conspiracy to

distribute cocaine, the goverment had to prove beyond a

reasonable doubt that there was an agreement among the

coconspirators, one of whom being Richmann, to commit an

offense against the United States. In addition, the

government must prove that there was an overt act by one of

the coconspirators in furtherance of the agreement.

Richmann’s defense at trial was that he did not engage in any

overt acts in furtherance of the agreement with the intent to

commit a crime. He claims that he could not have formed

the requisite intent because he believed he was working with

the DEA. His intent was to assist the DEA, not, he claims,

PAGE __*__ OF APPENDIX

io commit a crime. In the alternative, he asserts that he was

a victim of entrapment.

In reviewing a claim regarding the sufficiency of the

evidence, “[t]he verdict of a jury must be sustained if there is

substantial evidence, taking the view most favorable to the 4

Government, to support it.” Glasser v. United States, 315

U.S. 60, 80 (1942). We recognize that the government had

the burden of proving all elements of the crime and of

proving that Richmann had a predisposition to commit the

crime if entrapment is alleged. United States v. Irving, 827

F.2d 390, 392 (8th Cir. 1987). Having reviewed the

evidence presented at trial, we find that there was sufficient

evidence for the jury to convict Richmann.

IV. Conclusion

For the foregoing reasons, the judgment of the

district court is affirmed.

PAGE _'*_ OF APPENDIX

BRKT .

en a |

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

PAGE __>__ OF APPENDIX

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

JUDGMENT

No. 87-5369MN

United States of America,

Appellee,

Vv. Appeal from the United

States District Court for

the District Court of

Minnesota.

Daniel Paul Richmann,

* &#e2etes2?etest &

Appellant.

This appeal from the United States District Court was

submitted on the record of the district court, briefs of the

parties and was argued by counsel.

After consideration, it is ordered and adjudged that

the judgment of the district court in this cause be affirmed in

accordance with the opinion of this Court.

October 26, 1988

A True Copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

MANDATE ISSUED: 12/2988

PAGE _2___ OF APPENDIX

|

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 87-5369MN

United States of America, *

a.

Appellee, *

*

Vv. * Appeal from the United

* States District Court for

Daniel Paul Richmann, * the District Court of

* Minnesota.

Appellant. °

Appellant’s petition for rehearing en banc has been

considered by the Court and is denied.

Petition for rehearing by the panel is also denied.

December 13, 1988

Order entered at the Direction of the Court:

Clerk, U. S. Court of Appeals, Eighth Circuit.

PAGE 15 OF APPENDIX