Opposition Brief — Richmann v. United States

No. 88-1349 MAY 4 j929

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JOCStered F. SPANIOL, JR.

Jn the Supreme Court of the Vinten state

OCTOBER TERM, 1988

DANIEL PAUL RICHMANN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

GEOFFREY R. BRIGHAM

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the government’s conduct in this case was

SO Outrageous as to violate the Due Process Clause.

2. Whether the district court abused its discretion

when, at a post-trial hearing, it determined that a third-

party contact with a juror was harmless and that the juror

need not be called for questioning.

(i)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

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

Remmer v. United States, 347 U.S. 227 (1954) ..........

United States v. Aguon, 851 F.2d 1158 (9th Cir. 1988) ...

United States v. Arteaga, 807 F.2d 424 (Sth Cir. 1986)....

United States v. Duvall, 846 F.2d 966 (Sth Cir. 1988) ....

United States v. Hendrix, 549 F.2d 1225 (9th Cir.), cert.

EE Es |

United States v. Jones, 707 F.2d 1169 (10th Cir.), cert.

EE 7

United States v. Lovasco, 431 U.S. 783 (1977) .......... 4

United States v. Payner, 447 U.S. 727 (1980) ........... 4

5

4

-unkhn on

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United States v. Ramirez, 710 F.2d 535 (9th Cir. 1983) ...

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

United States v. Shoffner, 826 F.2d 619 (7th Cir.), cert.

a 0) 5

United States v. Simpson, 813 F.2d 1462 (9th Cir.), cert.

Genrem. p06 5. Ct. 233 (1967) .......... PE oN rs 5-6

United States v. Tobias, 662 F.2d 381 (Sth Cir. 1981),

nr G0. CN CESGL) .. 2.6. s sce cc eee 6

Constitution and statute:

U.S. Const. Amend. V (Due Process Clause) ........... 3

Te oe SESE EE Go 1-2

Miscellaneous:

3 C. Wright, Federal Practice and Procedure (2d ed.

A Dao a a 7

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-1349

DANIEL PAUL RICHMANN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-13) is

reported at 860 F.2d 837.

JURISDICTION

The judgment of the court of appeals (Pet. App. 14) was

entered on October 26, 1988. A petition for rehearing was

denied on December 13, 1988. Pei. App. 15. The petition

for a writ of certiorari was filed on February 10, 1989. The

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

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the District of Minnesota, petitioner was convicted of

conspiring to distribute cocaine, in violation of 21 U.S.C.

(1)

Nm

846. He was sentenced to 18 monihs’ imprisonment. The

court of appeals affirmed.

1. In December 1985, petitioner, who had a history of

cocaine abuse, contacted a Drug Enforcement Adminis-

tration (DEA) agent. He told the agent that he would be

willing to provide the DEA with the names of large-scale

cocaine dealers in the Minneapolis-St. Paul area. Peti-

tioner was subsequently contacted in February 1986 by

another agent. Petitioner met with that agent and agreed

to provide the DEA with information about Vasilios

Loukas, one of petitioner’s co-defendants and a large-

scale drug dealer in the area. Pet. App. 2.

To test petitioner’s reliability, the agent asked petitioner

to introduce a drug dealer to another undercover DEA

agent. Petitioner arranged the introduction and the agent

purchased a small amount of cocaine from the dealer. In

early March 1986, however, the DEA learned from

another informant that petitioner had discussed his DEA

involvement with persons in the drug business. The agency

theretore decided not to use petitioner as an informant. It

did not, however, tell petitioner that he was no longer

working with the DEA because to do so would have com-

promised the informant who had reported on petitioner’s

activities. From March 1986 until his arrest in December

1986, petitioner continued to associate and deal with

Loukas in the distribution of cocaine. Pet. App. 2-3; Gov’t

C.A. Eee

On December 18, 1986, federal officials executed a

search warrant at petitioner’s office while petitioner was

present. Both before and after he was advised of. his

Miranda rights, petitioner offered a substantial amount of

information about his dealings with Loukas and told of-

ticers where they could find physical evidence of these ac-

livities in the office. Petitioner was later arrested and in-

dicted. Pet. App. 2-4. In his defense, petitioner argued

that the DEA had entrapped him. Pet. App. 12. The jury

returned a guilty verdict.

2. After his conviction, petitioner moved for a new

trial on the ground of juror misconduct. Petitioner

claimed that after testifying, one of his character witnesses

was approached by a man in the parking garage adjacent

to the courthouse. The man allegedly told the witness that

he had spoken to one of the jurors and that the juror had

said he thought petitioner was being taken advantage of

and being “taken down the primrose lane” by the govern-

ment. The district court conducted a hearing at which the

witness related the incident. The court then refused peti-

tioner’s request to question the juror about the incident,

and denied the motion for a new trial. Pet. App. 4-5.

3. The court of appeals aftirmed. The court found

that the evidence was sufficient to prove that petitioner

had criminal intent to commit the offense, and that the

evidence of predisposition was sufficient to justify the

jury’s rejection of petitioner’s defense of entrapment. Pet.

App. 11-12. The court of appeals also rejected petitioner’s

claim of jury misconduct, finding “that the misconduct

complained of, if any, was harmless to [petitioner].” As

the court explained, “[n]o information appears to have

been conveyed to any member of the jury,” and “if [peti-

tioner’s] witness is believed, it appears that this juror was

expressing an idea which was favorable to [petitioner].”

Pet. App. 6.

ARGUMENT

1. Petitioner first contends (Pet. 8-14) that the DEA’s

failure to inform him that he would no longer be used as

an informant constituted outrageous government conduct

that violated the Due Process Clause. This claim is without

merit.

a

First, petitioner failed to raise his claim of outrageous

government conduct before the court of appeals; he is

therefore precluded from raising the issue now. United

States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). In his

court of appeals brief and his petition for rehearing, peti-

tioner argued only that the evidence was insufficient to

support his conviction and rebut his defense of entrap-

ment. Contrary to his contention (Pet. 13-14), petitioner

never made an “outrageous conduct” argument below, nor

did he cite any authority to support that legal theory. See

Richmann C.A. Br. 17-25; Richmann Pet. for Recon-

sideration 6-15. His passing remarks criticizing the govern-

ment’s conduct (see Pet. 13-14 (quoting remarks)) were all

made in the context of his “sufficiency of the evidence”

argument; they did not apprise the court of appeals of any

other legal claim (see Pet. App. 11-12), and they cannot be

construed at this late date as preserving an independent

constitutional issue.

In any case, petitioner’s due process claim fails on its

facts. The due process defense is a very narrow one. Prose-

cution is barred only when the “conduct of law enforce-

ment agents is sO Outrageous that due process principles

would absolutely bar the government from invoking

judicial processes to obtain a conviction,” United States v.

Russell, 411 U.S. 423, 431-432 (1973), and only when “the

government activity in question violates some protected

right of the defendant,” United States v. Payner, 447 U:S.

727, 737 n.9 (1980) (emphasis in original). As one court

has noted, the government misconduct must be “so grossly

shocking and so outrageous as to violate the universal

sense of justice.” United States v. Aguon, 851 F.2d 1158,

1171 (9th Cir. 1988); see also United States v. Duvall, 846

F.2d 966, 973 (Sth Cir. 1988) (“a due process violation will

be found only in the rarest and most outrageous circum-

stances”); United States v. Shoffner, 826 F.2d 619, 626

(7th Cir.), cert. denied, 108 S. Ct. 356 (1987).

The failure of the DEA to tell petitioner tiiat he was no

longer being used as an informant was not “grossly shock-

ing” or “outrageous” in light of the circumstances sur-

rounding the investigation. Petitioner himself began his

relationship with the DEA, offering his services as an in-

formant. Pet. App. 2. After beginning to work with him,

the DEA learned that petitioner had compromised the

identity and safety of a DEA agent by describing the agent

to other people in the cocaine business. Pet. App. 3. The

DEA therefore decided not to use petitioner as an infor-

mant; it could not, however, notify petitioner of its deci-

sion, because to do so would have jeopardized the other

informant who had reported on petitioner’s activities.

Gov't C.A. Br. 3; see Pet. App. 2-3.

Under these circumstances, the government’s conduct

was not improper, let alone “sG grossly shocking and so

Outrageous as to violate the universal sense of justice.” See

United States v. Arteaga, 807 F.2d 424, 426 (Sth Cir. 1986)

(“The appropriateness of the government’s conduct turns

* * * on the needs of law enforcement.”). No court has

reversed a conviction on such a showing, and courts have

regularly declined to find more plausibly blameworthy

government conduct to be sufficiently “outrageous” to

justify reversal. See, e.g., United States v. Ramirez, 710

F.2d 535, 539-540 (9th Cir. 1983) (no due process violation

where police may have coerced or unlawfully induced in-

formant’s cooperation, and where they misled him after

concluding he was a double agent, in order to gain as

much information from him as possible); see also United

States v. Simpson, 813 F.2d 1462, 1464-1468 (9th Cir.) (no

due process violation where FBI continued to use infor-

mant after learning that she was exploiting sexual relation-

ship with defendant in order to get information from

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him), cert. denied, 108 S. Ct. 233 (1987); United States v.

Tobias, 662 F.2d 381, 385-387 (Sth Cir. 1981) (no due

process violation where police supplied formula, some of

ingredients, and step-by-step advice on manufacturing

drug to defendant), cert- denied, 457 U.S. 1108 (1982).*

2. Petitioner also contends that the district court

abused its discretion when it ruled that a third party’s con-

tact with a ‘uror did not require reversal.

Any “private communication * * * with a juror during a

trial about the matter pending before the jury is * * *

deemed presumptively prejudicial.” Remmer v. United

States, 347 U.S. 227, 229 (1954). Nonetheless, the

“presumption is not conclusive,” although “the burden

rests heavily upon the Government to establish * * * that

such contact with the juror was harmless to the

defendant.” /bid. The “allowance or refusal of a new trial

[on the basis of improper juror communications] rests in

the sound discretion of the court to which the application

is addressed.” Mattox v. United States, 146 U.S. 140, 147

(1892).

Here, the government met its burden to establish that

the contact between the third party and the juror was

harmless. As the court of appeals underscored (Pet. App.

5-6), it did not appear that the juror who may have had the

* Petitioner’s claim is especially unpersuasive here, because peti-

tioner had been advised that if he became involved in anything illegal

that was not under the supervision and control of the DEA, he could

be arrested. Petitioner was specifically told that he was not a police of-

ficer and that he had no police function. He was instructed that if he

were to become involved in a criminal enterprise of any type, he was

required to notify the DEA so that the agency could control the situa-

tion. Gov't C.A. Br. 1-2. The actions that petitioner took after the

DEA had ceased to use him as an informant, including the laundering

of narcotics money, Were done without notifying the DEA or obtain-

ing its approval. Gov’t C.A. Br. 12-14.

improper contact received any information from the third

party that could have been conveyed to the other members

of the jury. Pet. App. 6. As the court observed, “[t]here

was no evidence that this particular juror, or any other

member of the panel, had been exposed to prejudicial in-

formation or evidence other than that which was intro-

duced at the trial.” /bid. In fact, the comments made by

the juror to petitioner’s character witness “express[ed] an

idea which was favorable to [petitioner]” and “detrimental

to the government.” /bid. Refusal to grant a new trial on

these grounds did not constitute an abuse of discretion.

Nor can this conclusion be challenged on the ground

that, at the hearing on the claim of juror misconduct, the ~

district court did not allow defense counsel to question the

juror who had supposedly spoken to the third person. See

Pet. 17-18. A trial court “has a great responsibility and

wide discretion in dealing with a motion for a new trial

based on allegations of juror misconduct.” United States

v. Jones, 707 F.2d 1169, 1173 (10th Cir.), cert. denied, 464

U.S. 859 (1983); accord United States v. Hendrix, 549

F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818

(1977); see 3 C. Wright, Federal Practice and Procedure

§ 554, at 261-262 (2d ed. 1982). The district court in this

case conducted a hearing at which it took the testimony of

the third party who was the source of the report of juror

misconduct. As the court of appeals observed (ret. App.

6-8), there was no evidence adduced at the hearing to sug-

gest that the juror was improperly influenced or that infor-

mation prejudicial to petitioner was communicated to the

jury. In these circumstances, and in light of the need to

protect the integrity of the deliberative process, the district

court did not abuse its discretion by refusing to permit the

juror to be questioned about the effect of the contact with

the third party on the jury’s deliberations.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR

Assistant Attorney General

GEOFFREY R. BRIGHAM

Altorney

MAY 1989