Opposition — Peterson v. United States

fp

EILED

MAY .10 1978

nh RODAK, JR., CLE

In the Supreme Court of the United States

OCTOBER TERM, 1977

JAMES AUGUSTUS PETERSON, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

SIDNEY M. GLAZER,

MAUREEN E. GEVLIN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinions below a 1

Jurisdiction 1

Question presented 2

Statement 2

Argument 8

Conclusion 13

CITATIONS

Cases:

Durbin v. United States, 221 F.2d 520 __ 12

Hampton v. United States, 425 U.S. 484. 8-9, 11

Lupo v. United States, 429 U.S. 1038 ___. 12

Osborn v. United States, 385 U.S. 323 ___. 11

Rochin v. California, 342 U.S. 165 9

United States v. Archer, 486 F.2d 670 ___. 9

United States v. Di Gilio, 5388 F.2d 972,

certiorari denied, 429 U.S. 1038 _...__ 12

United States v. Griffin, 463 F.2d 177, cer-

tiorari denied, 409 U.S. 988 _.. Ss ___ 11

United States v. Reifsteck, 535 F.2d 1030. 9

United States v. Russell, 411 U.S. 423 8,9

Walker v. United States, 93 F.2d 792 ___. 11

Statute:

18 U.S.C. 1503 2

Iu the Supreme Cont of the United States

OCTOBER TERM, 1977

No. 77-1293

JAMES AUGUSTUS PETERSON, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 8-13)

is unreported. The opinion of the district court deny-

ing petitioner’s motion to suppress (Pet. App. 1-7) is

also unreported.

JURISDICTION

The judgment of the court of appeals was entered

on December 13, 1977, and a petition for rehearing

(1)

was denied on February 15, 1978. The petition for

a writ of certiorari was filed on March 15, 1978.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether the fact that a government agent sug-

gested to a cooperating grand jury witness that he

show his subpoena to petitioner required either peti-

tioner’s acquittal on the charge that he obstructed

justice by directing the witness to lie to the grand

jury or the suppression of petitioner’s conversations

with the witness.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Northern District of Indiana,

petitioner was convicted of endeavoring to obstruct

justice, in violation of 18 U.S.C. 1503. He was sen-

tenced to nine months’ imprisonment. The court of

appeals affirmed (Pet. App. 8-13).

1. The indictment alleged that petitioner sought

to influence a witness, William Frank Newman, to

testify falsely before a grand jury investigating

illegal gambling and conspiracy by law enforcement

officers to facilitate illegal gambling. According to

the indictment, petitioner attempted to have Newman

supply the following false information: (1) that

petitioner had nothing to do with Newman’s gam-

bling operation; (2) that Newman could not recall

the substance of conversations he had with petitioner;

ae ee

(3) that Newman gave no percentage of the proceeds

of his gambling operations to petitioner; and (4)

that Newman had no knowledge of payments to local

police officials.

The government’s evidence at trial showed that

Newman, an employee of petitioner for many years

(Tr. 88), had run two successive gambling businesses

since 1970 (Tr. 91-99). Newman had opened each

of these businesses after receiving petitioner’s permis-

sion to operate (Tr. 92, 96-97) and had paid peti-

tioner $150 a month, pursuant to an agreement

(Tr. 74, 77). Petitioner ultimately became New-

man’s partner in the second establishment, opened in

August 1974; thereafter, petitioner and Newman

divided the proceeds equally (Tr. 98).

In August 1975, after Newman stopped operating

the gambling business because of raids by the police,

he talked to petitioner about reopening the business

(Tr. 95-100). That same month, Newman began co-

operating with the Federal Bureau of Investigation

(F.B.I.) (Tr. 253-254). He agreed to let the F.B.I.

monitor and record his conversations with petitioner

(Tr. 101-102, 105-106), and four such conversations

were recorded.*

The first of these conversations occurred on Sep-

tember 8, 1975. It primarily concerned the closing

of Newman’s gambling operation, and his own and

1 Government Exhibits 4(d), 5(d), 6(d) and 7(c) are the

verbatim typewritten transcripts of the conversations, or por-

tions of the conversations, which were introduced into evidence

at trial.

4

petitioner’s attempts to have it reopened (Gov. Ex.

4(d)). The second conversation took place on Sep-

tember 23, 1975. At that time petitioner, who had

apparently learned of the special grand jury inquiry

then being conducted into gambling, told Newman

that numerous people would be receiving subpoenas

and that Newman might receive a subpoena and be

asked about petitioner (Gov. Ex. 5(d), p. 1). Peti-

tioner then told Newman how to testify before the

grand jury (Gov. Ex. 5(d), pp. 1-3) and how to

get back into the gambling business (Gov. Ex. 5(d),

pp. 2-3); he also stated that he would begin paying

the police chief for permission to reopen (Gov. Ex.

5(d), p. 6). Petitioner told Newman to let him know

if Newman received a subpoena (Gov. Ex. 5(d),

p. 4).

The third recorded conversation occurred on Janu-

ary 8, 1976, after Newman had been served with a

subpoena to testify before the grand jury on Janu-

ary 15, 1976 (Tr. 317). At the start of this con-

versation, Newman showed petitioner the grand jury

subpoena (Gov. Ex. 6(d), pp. 1-2). Petitioner com-

mented that “Smiley” had also received a subpoena;

that Newman’s subpoena was “the same one they

all got”; and that his advice was “don’t talk to ’em

until ya get ya a lawyer” (ibid). Petitioner and

Newman then discussed the gambling business.

Later, petitioner returned to the subject of the

subpoena. He told Newman that he would be ques-

tioned about the gambling operation and those persons

who worked for him; that Newman should say that

he had “fellows hustling there” and that he did not

share the proceeds of the business with anyone (Gov.

Ex. 6(d), pp. 14-16); that he should testify that he

“don’t pay nobody” and that he never gave any

policeman anything (Gov. Ex. 6(d), p. 17); that

when asked about petitioner and whether petitioner

or the police got a share of the proceeds, Newman

should testify that he knew nothing about it (Gov. Ex.

6(d), p. 19); that Newman should say that he never

got started in the business because he was raided

every time he tried to open (Gov. Ex. 6(d), pp. 19-

20); and that Newman should not deny talking to

petitioner but should say that he could not remember

the contents of the conversations (Gov. Ex. 6(d),

pp. 21-22).

Newman later received a letter informing him that

his grand jury appearance was postponed from Janu-

ary 15 to January 29, 1976 (Tr. 83-84). When

Newman showed this letter to petitioner during their

final recorded conversation, on January 27, 1976

(Gov. Ex. 7(c), pp. 1-2), petitioner again told New-

man that he would be asked if he were paying the

police any money and that Newman had many rea-

sons to say that he was paying nobody (Gov. Ex.

7(c), p. 5).

Newman testified before the grand jury on Janu-

ary 29, 1976, and again on March 23, 1976.

2. Prior to trial, petitioner moved to suppress the

two January conversations recorded after issuance

of the subpoena. He claimed that there had been an

abuse of the grand jury process and prosecutorial

6

misconduct, alleging that Newman had used the grand

jury subpoena, at the instruction of government

agents, to induce a discussion of Newman’s pend-

ing grand jury appearance.

At an evidentiary hearing, F.B.I. agent Freas, who

had been Newman’s primary government contact

from the time that he became a cooperating witness,

testified that he obtained the subpoena summoning

Newman to appear before the grand jury (Jan. 3

S. Tr. 51).22 The agent stated that he subsequently

told Newman to show the subpoena to petitioner if the

opportunity arose (id. at 52), and that he expected

the subpoena to serve as a stimulus to conversation

(id. at 53). Regarding the January 27, 1976, con-

versation, Freas testified that Newman was to engage

petitioner in a conversation about gambling and also

about Newman’s forthcoming appearance before the

grand jury (Jan. 3S. Tr. 58). However, Freas de-

nied that the object was to find out what petitioner

would tell Newman to do concerning the subpoena,

and he stated that he did not instruct Newman to

ask petitioner’s advice concerning it (id. at 53-54).

He said that it was his intention to have Newman

testify before the grand jury when he served him

with the subpoena, that the investigation into gam-

bling and police corruption was an ongoing one, and

that he would have sent Newman out for conversa-

? This reference is to the supplemental transcript of the

January 3, 1977, evidentiary hearing, which contains the testi-

mony of Newman and agent Freas. “Jan. 3 Tr.” refers to the

main transcript of that hearing.

7

tions with petitioner on the two January occasions

whether or not Newman had received a subpoena

(id. at 58-59).*

Newman and -he Strike Force attorney who had

handled the investigation were also called as wit-

nesses by petitioner. Newman confirmed that he was

told to show the subpoena to petitioner, but he said

that he was not instructed to ask for advice (Jan. 3

S. Tr. 22). He had previously been instructed to talk

with petitioner about the gambling business (id. at

13). The Strike Force attorney testified that all in-

structions to Newman were given through agent

Freas (Jan. 3 Tr. 21, 22) and that he had suggested

to Freas that Newman be told to discuss gambling

operations with petitioner (id. at 10, 12). He stated

that the object of the “wiring” was purely to gather

information (id. at 13) and that Freas was not told

to tell Newman to seek advice from petitioner (id.

at 15).

The district court denied the motion to suppress

(Pet. App. 1-7). Although it believed that the “sub-

poena should not have been used by the United States

as a bait in order to encourage [petitioner] to com-

ment on matters then pending before the grand jury”

(Pet. App. 5), it found that it was “reasonable to

conclude that the grand jury subpoena was issued

* At trial, Freas further explained that the subpoena for

Newman was obtained with the knowledge and approval of the

Strike Force attorney handling the investigation (Tr. 374)

and that he expected the subpoena would serve as a stimulus

to conversation by petitioner concerning gambling and police

corruption (Tr. 383).

for the purpose of directing William Frank Newman

to appear before the grand jury” (Pet. App. 6).

Since petitioner’s constitutional rights had not been

violated, the court viewed the issue as whether sup-

pression was required as a matter of fundamental

fairness. Based, inter alia, on its reading of the

January transcripts, the court concluded that sup-

pression would not be justified. The court of appeals

affirmed (Pet. App. 8-13).

ARGUMENT

Petitioner contends that the government improp-

erly used Newman and the grand jury subpoena to

bait him into attempting to influence Newman’s

grand jury testimony. He further says that this

alleged activity constituted “outrageous conduct” re-

quiring either his acquittal under the exercise of this

Court’s supervisory powers or the suppression of the

January conversations. These claims are without

merit.

1. Although petitioner asserts that this case pre-

sents an unresolved issue concerning the entrapment

defense,;* his principal claim seems to be that his

* While petitioner suggests (Pet. 6) that this case affords an

opportunity to resolve “whether the entrapment defense ought

to be limited only to those cases in which there is no predispo-

sition on the part of the defendant,” that suggestion is incor-

rect because that question has already been authoritatively

resolved. In United States v. Russell, 411 U.S. 423, this Court

reaffirmed that the defense of entrapment is unavailable to a

defendant predisposed to commit the crime. /d. at 433, 436.

That view was sustained in Hampton v. United States, 425

conviction on these facts violates general principles

of due process. In his view, this case apparently

presents circumstances “in which the conduct of law

enforcement officials is so outrageous that due process

principles would absolutely bar the government from

invoking judicial process to obtain a conviction, cf.

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

United States v. Russell, 411 U.S. 423, 431-432. See

also Hampton v. United States, 425 U.S. 484, 489.

But whatever may be the ultimate scope of this due

process defense, it is plain that it has no application

to the facts of this case.

The evidence in the present case shows nc egregious

overreaching by government officials; at most, the

agents gave petitioner a convenient opportunity to

commit an offense, an opportunity that he rapidly

U.S. 484. In his concurring opinion, relied upon by peti-

tioner, Justice Powell specifically agreed with the plurality

that “Russell definitively construed the defense of ‘entrap-

ment’ to be focused on the question of predisposition.” Id.

at 492 n. 2.

Nor do the decisions in United States v. Reifsteck, 535 F.2d

1030 (C.A. 8), and United States v. Archer, 486 F.2d 670

(C.A. 2), reflect any conflict or confusion about the limits of

the entrapment defense. In both cases, the courts recognized

that the traditional entrapment defense is restricted to in-

stances where the defendant is not predisposed to commit the

crime. They noted only that this Court has not foreclosed the

possibility of a distinct defense based solely on due process

notions, which the Reifsteck court termed “entrapment as a

matter of law.” 585 F.2d at 1034-1085. Here, the court of

appeals correctly concluded that the recognized entrapment

defense was unavailable to petitioner because “the facts of this

case clearly show [his] predisposition * * * to commit the

crime for which he was convicted” (Pet. App. 13).

10

seized. The primary purpose in serving Newman with

the subpoena was to secure his appearance and testi-

mony before the grand jury (Tr. 393). Although the

agent also told Newman to show the subpoena to

petitioner if the opportunity arose, that instruction

was a proper method to stimulate further discussion

of illegal gambling and police corruption, the matters

under investigation (Tr. 383, 393). The first two

recorded conversations had developed such informa-

tion, and the thrust of the investigation did not

change when Newman was subpoenaed. While the

agent recognized that petitioner might also discuss

with Newman his possible conduct before the grand

jury, the incitement of such a conversation was not

an overriding purpose of the subpoena but merely a

conceivable by-product of its display.°

Even if the conduct of the government agents were

thought improper, their involvement in the criminal

activity was slight. In showing the subpoena to peti-

tioner, Newman was following both past practice

between the two men (Tr. 149, 152) and petitioner’s

own instructions in the September 23 conversation.

There is no reason to suppose that petitioner would

5 Although petitioner seems to suggest that Newman’s grand

jury appearance was postponed to provide an opportunity for

a second discussion concerning the subpoena (Pet. 10), there

is no support for this claim. Newman did appear at the meet-

ing place of the grand jury on January 15, 1976 (Tr. 83-84).

He apparently was one of at least six witnesses who had been

subpoenaed for that date; three seem to have testified that

day, and three, including Newman, were asked to return at a

later date (Gov. Ex. 7(c), pp. 2-3).

ll

have refrained from obstruction of justice if he had

not seen the subpoena but merely had been told that

Newman was to appear before the grand jury. In-

deed, since it has long been established that a “wit-

ness” for purposes of 18 U.S.C. 1503 need not be

subpoenaed (see, ¢.g., United States v. Griffin, 463

F.2d 177 (C.A. 10), certiorari denied, 409 U.S. 988;

Walker v. United States, 93 F.2d 792 (C.A. 8)), the

action of the government in issuing a subpoena to

Newman did not even supply a necessary element of

petitioner’s offense. Cf. Hampton v. United States,

425 U.S. 484.

This Court has upheld a conviction on similar facts

in Osborn v. United States, 385 U.S. 323. There, in

a prosecution for obstruction of justice based on

attempted jury tampering, efforts by the defendant

to bribe a juror were precipitated by the statement

of a government informant that he was related to

one of the jurors. The informant later falsely told

the defendant that the juror was “susceptible to

money” (385 U.S. at 326). Affirming the conviction

despite a claim of entrapment, this Court noted that

“Ta]t the most, [the informant’s statements] afforded

the petitioner ‘opportunities or facilities’ for the com-

mission of a criminal offense.” 385 U.S. at 331-

332.

2. As noted earlier, the district court, in denying

petitioner’s suppression motion, stated that the sub-

poena should not have been used as a “bait to encour-

age [petitioner] to comment on matters then pend-

ing before the grand jury” (Pet. App. 5). Peti-

12

tioner Gontends that the court thus found an abuse

of process and that, having done so, it erred in refus-

ing to suppress the January conversations. The court

of appeals correctly rejected this claim.

Even if there had been an abuse of grand jury

process in this case, 18 U.S.C. 3501 would preclude the

courts from remedying that abuse by suppression of

petitioner’s inculpatory statements. United States v.

Di Gilio, 538 F.2d 972, 985 (C.A. 3), certiorari de-

nied sub nom. Lupo v. United States, 429 U.S. 1038.

In any event, there was no abuse of process in this

case. The district court specifically found that “the

grand jury subpoena was issued for the purpose of

directing William Frank Newman to appear before

the grand jury” (Pet. App. 6), and that it was not

relevant that an additional reason for the issuance of

the subpoena might be discerned. The court of ap-

peals upheld that conclusion, noting that the subpoena

was directed not to petitioner but to Newman, a

legitimate witness, who did appear and give relevant

testimony before the grand jury. As the court of

appeals observed: “[Newman’s] appearance was a

necessary step in the investigation conducted by the

grand jury and the subpoena was appropriately isshed

to secure his appearance.” (Pet. App. 12-13).

The decision in Durbin v. United States, 221 F.2d

520 (C.A.D.C.), is therefore inapposite. In Durbin,

which was decided prior to enactment of Section 3501,

the court, in reversing the defendant’s conviction on

ether grounds, criticized the government’s action in

using a subpoena to restrain the defendant’s move-

18

ments indefinitely, or until he made a statement

satisfactory to the prosecutor, despite the fact that

the grand jury had recessed. By contrast, petitioner’s

sole complaint here is that a witness was instructed

to display his properly issued subpoena in the hope

of “stimulating” conversation. The transcripts of

the January conversations demonstrate that Newman

in fact did no more than show his subpoena to peti-

tioner, who then proceeded to instruct Newman in

the false testimony that he should give. In these cir-

cumstances, the district court correctly concluded that

suppression of the conversations would be unjustified.

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

WADE H. McCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SIDNEY M. GLAZER,

MAUREEN E. GEVLIN,

Attorneys.

MAY 1978.

©. 6. covennmant paimrine orrice; 1976 2eaace 7