Opposition — Mummert v. United States

Nos. 77-1338 and 77-6384

Iu the Supreme Court of the United

OCTOBER TERM, 1977

RICHARD WAYNE MUMMERT, PETITIONER

v.

UNITED STATES OF AMERICA

ALFREDO REYNOSO-ULLOA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

KATHLEEN A. FELTON,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinion below 2

Jurisdiction 2

Questions presented i 2

Statement _ 2

Argument 5

Conclusion ‘ 11

CITATIONS

Cases:

Hampton v. United States, 425 U.S. 484. 6,7

Napue v. Illinois, 360 U.S. 264 10

Sherman v. United States, 356 U.S. 369. 6,7

Sorrells v. United States, 287 U.S. 485... 6, 7-8

United States v. Agurs, 427 U.S. 97____. 10

United States v. Russell, 411 U.S. 423... 6,7

Statutes:

21 U.S.C.:

Section 841

Section 843 _....____.

Section 846

Section 952

Section 960 _

Section 963 _

Co Co CO WH WH

Miscellaneous:

1 Devitt and Blackmar, Federal Jury Prac-

tice and Instructions (3d ed. 1977) ____.. 6

aoe ge

Du the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1338

RICHARD WAYNE MUMMERT, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-6384

ALFREDO REYNOSO-ULLOA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRiEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)*

is reported at 548 F.2d 1329.

JURISDICTION

The judgment of the court of appeals was entered

on January 25, 1977. A petition for rehearing, with

suggestion for rehearing en banc, was denied on

February 21, 1978 (Pet. App. B). The petition for

a writ of certiorari in No. 77-1338 was filed on

March 22, 1978, and the petition in No. 77-6384 was

filed on March 20, 1978. The jurisdiction of this

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

QUESTIONS PRESENTED

1. Whether the district court erred in refusing to

give additional instructions on entrapment.

2. Whether the conduct of a government inform-

ant was so shocking that due process principles bar

the government from prosecuting petitioners.

3. Whether perjury on the part of a government

witness requires reversal of petitioner Mummert’s

conviction (Pet. 77-1338).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of California, peti-

tioners were convicted of five counts of distributing

“Pet. App.” refers to the Appendix in No. 77-1338.

heroin and one count each of possession of heroin

with intent to distribute, use of a telephone to facili-

tate its distribution, and conspiracy, all in violation

of 21 U.S.C. 841, 848, 846, 952, 960 and 963 (Pet.

App. A-1). Each petitioner was sentenced to con-

current terms of four years’ imprisonment on the

charge of use of a telephone to facilitate distribution

and to eight years’ imprisonment on each of the

other counts, to be followed by a three-year term of

special parole. The court of appeals affirmed in a

lengthy opinion (Pet. App. A-1 to A-20).

In April 1975, Michael Sheen, a government in-

formant who had worked for the Drug Enforcement

Administration (DEA) in Seattle, Washington,

moved to Southern California following threats on

his life (Tr. 71-72). He took a job selling cars at a

Ford dealership owned by petitioner Mummert (Tr.

540). Sheen soon became friendly with Mummert

and through him met petitioner Reynoso-Ulloa (Rey-

noso) (Tr. 541-542). As Sheen became better ac-

quainted with Reynoso, he discovered that the latter

had an interest in smuggling heroin. Sheen contacted

DEA agents Flego and Zweiger, with whom he had

worked in Seattle, and asked them if they would be

interested in pursuing an investigation (Tr. 73).

When the agents indicated their interest, Sheen pur-

sued his negotiations with Reynoso, while maintain-

ing regular contact with the DEA agents (Tr. 73-75,

576).

Sheen told Reynoso that he had connections with

a group in Seattle that was seeking a new source of

4

supply for narcotics (Tr. 572-574). As negotiations

developed, Sheen called Agent Flego and told him

that Reynoso and Mummert were willing to make a

deal if they could be convinced that Sheen’s principals

in Seattle had the necessary money (Tr. 75, 576-

578).

Meanwhile, Sheen was independently negotiating

with Mummert, who was trying to obtain $1,200,000

in order to relocate his car dealership. Sheen told

Mummert that his father and his father’s banking

associates had untaxed, illegally earned money avail-

able for investments (Tr. 962, 963). Mummert re-

sponded that he could “launder” the money and made

some preliminary arrangements to do so through

Reynoso’s connections in Mexico (Tr. 1644-1646).

Mummert then met Sheen and the undercover agents

in Seattle, where he was shown what appeared to be

$1,200,000 (Tr. 79, 587, 1654). Mummert told Agent

Flego that either he or Reynoso would be able to

launder the money (Tr. 80).

Sheen testified that shortly after their return from

Seattle, he met with petitioners Mummert and

Reynoso. According to Sheen, this was the first time

he had discussed the heroin transaction in Mummert’s

presence (Tr. 594-595). Sheen explained that the

heroin transaction would provide the funds to relo-

cate the dealership (Tr. 986). Sheen testified that

Mummert indicated initially that he was reluctant to

become involved with the heroin, saying he didn’t

“really want to be involved with that mess.” (ibid.).

Mummert subsequently agreed to participate with

the expectation that he and Sheen would use the

profits from the heroin transaction to invest in Mum-

mert’s dealership (Tr. 644, 998-999). Indeed, Mum-

mert later told undercover agent Zweiger that he

had convinced Reynoso to sell heroin to Sheen’s as-

sociates so that he (Mummert) could finance the

dealership with his share of the profits (Tr. 1113).

Direct negotiations between the agents and both

petitioners continued over several weeks; samples

were exchanged, and several meetings took place

(Tr. 607, 90-91, 150, 157-161, 184), but problems

with Reynoso’s Mexican connections caused continu-

ing delays in delivery (Tr. 142, 143, 144, 147). Mum-

mert periodically reassured the agents as to Reynoso’s

reliability and the quality of the heroin they expected

to supply (Tr. 142, 161, 169, 1036, 1044, 1089).

Finally, on September 19, 1975, Reynoso and Mum-

mert were ready to deliver one and a half kilograms

of heroin for $75,000 (Tr. 183-184). Reynoso was

arrested when he delivered the heroin to Agent Flego

in Los Angeles, and Mummert was arrested while

he was waiting with Agent Zweiger and the purchase

money (Tr. 192, 228).

ARGUMENT

1. Petitioners contend that the instructions on

entrapment given by the district court were erron-

eous.

a. Petitioner Mummert contends (Pet. No. 77-

1338, pp. 10-11) that the trial court erred in refusing

to give one or more of the elaborating instructions

he proposed (Pet. App. D) regarding the relation-

ship between predisposition and economic inducement,

since the crux of his defense was that he had been

overwhelmed by the promise of large amounts of

money offered by informant Sheen.

The entrapment instruction given by the district

court (Pet. App. A-16 to A-17) which tracked 1

Devitt and Blackmar, Federal Jury Practice and In-

structions § 13.09 (3d ed. 1977), properly presented

the elements of entrapment established by this Court

in Sorrells v. United States, 287 U.S. 435, and Sher-

man v. United States, 356 U.S. 369, and reaffirmed

in United States y. Russell, 411 U.S. 423, and Hamp-

ton v. United States, 425 U.S. 484. The court charged

the jury (Pet. App. A-16) that they must acquit if

they had a reasonable doubt “whether the defendant

had the previous intent or purpose to commit any

offense of the character here charged, and did so only

because he was induced or persuaded by some officer

or agent of the Government * * *.” The jury was

then instructed that this persuasion or inducement

could include the “promise of money or other eco-

nomic benefit” (ibid.). ;

As the court of appeals correctly found, the addi-

tional instructions offered by petitioner Mummert

repeated the substance of the court’s charge and

would have placed undue emphasis on the aspect of

inducement, suggesting that the jury could ignore

whether petitioner readily accepted the opportunity

to break the law (Pet. App. A-17). Accordingly, the

7

district court did not err in refusing to give the addi-

tional instructions.

b. Both petitioners assert a kind of due process

defense, based upon the statement in United States

v. Russell, supra, 411 U.S. at 431-432, that a situa-

tion might some day arise “in which the conduct of

law enforcement agents is so outrageous that due

process principles would absolutely bar the govern-

ment from invoking judicial processes to obtain a

conviction * * *.” Relying on this language as well

as statements in the concurring and dissenting opin-

ions in Hampton v. United States, supra, petitioners

claim that they were entitled to an instruction direct-

ing the jury to acquit them regardless of their crimi-

nal predisposition if the jury found the conduct of

the government agents “so outrageous as to be funda-

mentally unfair and shocking to the universal sense

of justice.” (Pet. App. D-2). ;

Assuming that such a defense is available in a

proper case, however, it would raise a question solely

for the court, not the jury. When the focus is on

the constitutional limit of governmental involvement

in crime, “the determination of the lawfulness of the

Government’s conduct must be made—as it is on all

questions involving the legality of law enforcement

methods—by the trial judge, not the jury.” United

States v. Russell, 411 U.S. 423, 441 (Stewart, J.,

dissenting) ; see Hampton v. United States, 425 U.S.

484, 497 (Brennan, J., dissenting); Sherman v.

United States, 356 U.S. 369, 385 (Frankfurter, J.,

concurring in result); Sorrelle v. United States, 287

8

U.S. 435, 457 (separate opinion of Roberts, J.). Ac-

cordingly, the district court did not err in rejecting

an instruction on that issue.

2. The court of appeals properly concluded that

the facts had not established such a due process de-

fense in the instant case.

a. The court considered and rejected petitioners’

claim that profane threats Sheen made to Reynoso

were so outrageous as to require reversal of their

convictions (Pet. App. A-15 to A-16). As the court

correctly noted, “[t]he threat must be viewed in the

context of the vulgarity and ‘puffing’ engaged in by

all participants in the transaction” (Pet. App. A-15).

During the course of the negotiations, numerous false

claims and exaggerated statements were made, all as

part of the sordid milieu in which drug trafficking

generally takes place. For example, when agents

Flego and Zweiger criticized the quality of the heroin

that petitioners had supplied, petitioner Mummert

himself stated that his supplier would be “wasted” if

he ever again delivered inferior heroin (Tr. 1099).

Furthermore, nothing in petitioners’ conduct sup-

ports their contention that they gave credence to this

threat and went ahead with the transaction because

of it. To the contrary, Mummert himself testified that

on September 5th—the day before Sheen’s threat to

Reynoso—he was very much interested in having

the transaction completed and that he himself had

convinced Reynoso to go forward with the deal (Tr.

1739-1740). On the same day, both Reynoso and

Mummert urged the agents not to back out of the deal

and assured them that they would locate the heroin

through different sources (Tr. 1050-1052).

b. Mummert also suggests (Pet. No. 77-1338, pp.

7, 9-10) that Sheen’s offer of a loan of $1.2 million

to a businessman known to be in financial distress

was such an overwhelming inducement that he could

not properly be convicted. This fact, however, suffices

neither to make out the due process defense nor to

establish entrapment as a matter of law. The court

of appeals correctly rejected petitioner’s contention,

treating the fact that such a large sum was involved

as merely one factor to be considered in determining

whether Mummert had been entrapped. The court

concluded from the evidence tliat Mummert showed

“little, if any, real resistance” to becoming involved

in the heroin transaction, that he was at times the

moving force in the heroin scheme, that he had agreed

to “launder” untaxed money even before he was told

of the heroin scheme, that Mummert was uncon-

cerned about illegality and ready to join any enter-

prise that would bring him a large sum of money

(Pet. App. A-10 to A-13). The court concluded

(Pet. App. A-13) that the jury could properly reject

a defense of entrapment by such a person, “who,

motivated by greed and unconcerned about breaking

the law, readily accepts a propitious opportunity to

commit an offense.”

3. Finally, petitioner Mummert contends (Pet. No.

77-1338, pp. 11-12) that a government informant

committed perjury during the government’s case in

chief. “[A] conviction obtained by the knowing use

10

of perjured testimony is fundamentally unfair, and

must be set aside if there is any reasonable likelihood

that the false testimony could have affected the judg-

ment of the jury.” United States v. Agurs, 427 U.S.

97, 103 (emphasis supplied); see Napue v. Illinois,

360 U.S. 264, 269.

Although the court below did conclude (Pet. App.

A-18) that Sheen’s testimony linking Reynoso with

one or more drug transactions prior to the incidents

involved in this case was false, it also found that

there was no evidence that the government knew of

this falsity. Petitioner does not challenge this find-

ing. In any event, the record supports the court of

appeals’ conclusion (ibid.) that neither petitioner

was prejudiced by the admission of Sheen’s statement.

To the contrary, as the court of appeals noted, since

petitioners knew well in advance of trial what Sheen’s

testimony would be, they were able to rebut his testi-

mony effectively and thus impeach his credibility.

Certainly, the alleged perjury did not prejudice Mum-

mert, since it related only to petitioner Reynoso’s

alleged prior involvement in drugs and had no bear-

ing on Mummert’s participation in the scheme in

question.

11

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

May 1978.

WADE H. McCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

KATHLEEN A. FELTON,

Attorneys.

W oo. &. coveenment primrine orrice; 1978 2eacci 8