Opposition — French v. United States

| & Suprema Court, U,

i FILED

‘| OCT 28 1978

Nos. 78-209 and 78-5204

——_——- Se niiitioperiominens) 3 1 CLERK

In the vas Court of the linited States

OCTOBER TERM, 1978

LARRY FRENCH, PETITIONER

V.

UNITED STATES OF AMERICA

Guy WARREN PAYNE, PETITIONER

ve

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WapbeE H. McCreE, JR.

Solicitor General

PHILip B. HEYMANN

Assistant Attorney General

JAMES A. HUNOLT

Attorney

Department of Justice

Washington, D.C. 20530

INDEX

Page

ESE Se |

Nee ci rsccscuscssccsessovssesevscocssecnseeseceseesensseess 2

INNO i scccucnescccccnccsssccasccsccccessccacsccccccsccess 2

ee aaeea cusstaubvacnadctsasessececaccsccsccescsccnscosegeccess 2

is aibicibisesscbnciontnadsnevdseacesecscccesescsccccseseseee 4

seco sake tiveCidscosivensearcecsssacccoccesecccees 10

CITATIONS

Cases:

Hampton v. United States, 425 U.S. 484 ....... 4, 5

Lawn v. United States, 355 U.S. 339 .....cceceee YQ

Petite v. United States, 361 U.S. 529 ...........ccceee 8

Rinaldi v. United States, 434 U.S. 22 voce 8

Sherman v. United States, 356 U.S. 369 «0.0.0... 5

United States v. Calandra, 414 U.S. 338 «0.0.00... 9

United States v. Fisher, 518 F. 2d 836

0 EE 9

United States v. Fritz, No. 77-1027

(10th Cir. July 3, 1978) cert. pending,

ESE SCT REST R A 8

United States v. Russell, 411 U.S. 423. .......... 4,5

United States v. Thompson, (Oct. 10, 1978)

No. 76-1883 (10th Cir. June 15, 1978),

IR A PMID socacssecccsscenscenvecssecssicnse 8

Statutes:

EEE SRI, WIE Ness tdccdivandcocasciasavnsenceaysedbaboeeMeedeanabens 3

ee WM PE oes doc cach nc cubed tasenapbavenaestaataneeborel 2, 3

BO Nc TIENT Gon Veah dines eudechossesticancesaudeienetsusbrvenles Hs

Miscellaneous:

8 Wigmore, Evidence (McNaughton rev.

EINER scar tub cick citabiebsapebandnvas veciukniedabesesensennsiennns 9

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-209

LARRY FRENCH, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 78-5204

Guy WARREN PAYNE, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The original opinion of the court of appeals (78-5204 Pet.

App. A) and the opinion of the court of appeals denying the

petitions for rehearing (78-5204 Pet. App. B) are not yet

reported.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 1978. Petitions for rehearing were denied on July

6, 1978. The petition for a writ of certiorari in No, 78-209

was filed on August 5, 1978. The petition for a writ of

certiorari in No. 78-5204 was filed on August 7, 1978, and ts

therefore out of time under Rule 22(2) of the Rules of this

Court. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether the conduct of government agents in this case

constituted entrapment as a matter of law (No. 78-5204).

2. Whether petitioner Payne was denied the effective

assistance of counsel by the manner in which bench

conferences were conducted (No. 78-5204).

3. Whether the trial court erred in admitting evidence of

petitioner Payne’s prior conviction for possession of

marijuana without requiring the government to produce a

certified copy of the record of that conviction (No. 78-5204).

4. Whether petitioners are entitled to relief on the ground

that they were prosecuted in violation of the Petite policy

(both petitions).

5. Whether the indictment should have been dismissed

because petitioner French’s wife testified before the grand

jury (No. 78-209).

STATEMENT

Following a jury trial in the United States District Court

for the Western District of Oklahoma, petitioner Payne was

convicted of conspiring to import marijuana, in violation of

21 U.S.C. 963 (Count 1), importing marijuana, in violation

of 21 U.S.C. 952 (Count 2), and conspiring to distribute

marijuana, in violation of 21 U.S.C, 846 (Count 3), He was

sentenced to concurrent terms of four years’ imprisonment

on Counts | and 3 and to a consecutive term of four years’

imprisonment on Count 2.' Payne was also fined $15,000 on

Count |.

After a jury-waived trial in the same court,’ petitioner

French was convicted of conspiring to import marijuana, in

violation of 21 U.S.C. 963 (Count 1), and importing

marijuana, in violation of 21 U.S.C. 952 (Count 2). He was

sentenced to consecutive terms of four years’ imprisonment

on the two counts. The court of appeals affirmed in both

cases (78-5204 Pet. App. A).

The evidence at trial showed that on July 27, 1975, John

Walker, an undercover agent and pilot for the Drug En-

forcement Administration, and Joseph Haas, an inform-

ant and commercial pilot, met with petitioner Payne and

co-conspirator George Boehm in Kenner, Louisiana (Tr.

250, 252). During the meeting, petitioner Payne stated that

he had money to start an operation to import marijuana for

distribution in the United States (Tr. 254-255). Payne asked

Walker and Haas to fly to Mexico to pick up 3,800 pounds

of marijuana (Tr. 255). However, Walker told Payne that

they did not want to get involved in drug operations in

Mexico (ibid.). Petitioner then offered to pay Walker and

Haas $10.00 for each pound of marijuana they delivered to

him from Colombia, and the two pilots agreed (Tr. 256).

‘The sentence was made consecutive to a prior state sentence.

*Petitioners were named as co-defendants in the same indictment.

P&itioner French was granted a mistrial, however, during the joint trial.

Hé then waived his right to a jury trial and stipulated to the evidence

presented at the prior trial.

‘George Boehm was convicted in a separate trial, and the convictién

was affirmed by the court of appeals. A petition for a writ of certio-

rari is pending in that case (No. 78-5203).

On September 29, 1975, Walker, Haas, and petitioner

Payne fiew to Colombia (Tr. 260). Payne carried $42,000 in

his boots (Tr. 261-262), After arriving in Colombia, Payne

contacted petitioner French, and the four met the following

day (Tr. 263-264). Payne gave French the $42,000, and

French said that he would “talk to the Colombians and see if

it could be arranged” (Tr. 266). The next day French took

Walker and Haas to survey a clandestine landing strip (Tr.

281-285). Later French, Walker, and Haas discussed the

details of transporting the marijuana (Tr. 291-293). French

told Walker that he should fly to Colombia on October 11,

1975, to pick up the marijuana and that 10,000 pounds

would be transported (Tr. 292). Walker, Haas, and Payne

subsequently returned to the United States (Tr. 293-294).

Walker rented an airpiane on October 10, 1975, and flew

with Haas to Colombia (Tr. 294-301). Approximately four

tons of marijuana were loaded onto the aircraft, which was

then flown to Chickasha, Oklahoma (Tr. 301-305). Walker

and Haas were met there by petitioners and others, and

the marijuana was loaded into two trucks and taken to

a farm in Arkansas (Tr. 306-308, 586-587).

ARGUMENT

1. Petitioner Payne contends (78-5204 Pet. 4) that he was

entrapped as a matter of law because government agents

actively participated in the criminal scheme. But the focus of

the entrapment defense is not on governmental conduct, but

is “on the intent or predisposition of the defendant to

commit the crime.” Hampton v. United States, 425 U.S.

484, 488 (1976) (plurality opinion), quoting United States v.

Russell, 411 U.S. 423, 429 (1974). “It is only when the

Government’s deception actually implants the criminal

design in the mind of the defendant that the defense of

entrapment comes into play.” United States v. Russell,

supra, 411 U.S. at 436. Petitioner has not suggested that he

lacked the predisposition to commit the offenses proved at

trial, and the evidence shows clearly that petitioner was not

an “unwary innocent” (ibid., quoting Sherman v. United

States, 356 U.S. 369, 372 (1958)) but was instead

predisposed to engage in such unlawful conduct. Accord-

ingly, the court of appeals correctly concluded (No. 78-

5204 Pet. App. 12) that petitioner was not entitled to the

entrapment defense as a matter of law.*

Nor was the conduct of the government agents “so

outrageous that due process principles would absolutely bar

the government from invoking judicial processes to obtaina

conviction.” United States v. Russell, supra, 411 U.S. at

431-432. The activity of the agents in flying the marijuana

from Colombia to Oklahoma supplied only one element in

the petitioner’s scheme to import and distribute marijuana,

and the participation was solicited and directed entirely by

petitioners. Petitioner Payne has suggested no basis on

which it could be concluded that the agent’s conduct was so

outrageous as to deprive him of due process of law, and the

court of appeals properly rejected this claim (No. 78-5204

Pet. App. 12).

2. Petitioner Payne contends (78-5204 Pet. 4-5) that he

was denied effective assistance of counsel because the

district court allowed only one attorney at a time to attend

bench conferences. Fourteen defense attorneys participated

in the trial, which involved several co-defendants. Although

the record does not disclose any ruling by the trial judge

limiting the number of counsel allowed to approach the

‘Petitioner Payne asserts that there is a conflict among various courts

on the issue whether proof of substantial police involvement alone may

custain the entrapment defense. Each of the cases upon which petitioner

relies, however, was decided prior to Hampton, supra.

6

bench.s a number of bench conferences occurred at which

only one defense counsel was present (e.g., Tr. 369, 979,

1042-1044, 1634). On other occasions, however, two or

more defense counsel conferred at the bench (e.g., Tr. 310-

312, 878, 937-938, 1654-1657). When petitioner Payne's

counsel wished to approach the bench, he did so (Tr. 2288-

2289). The bench conferences routinely involved matters of

significance only to those participating (e.g., Tr. 1232, 1484-

1485, 1634), and the trial judge allowed other counsel to be

presented/upon request (Tr. 1121-1122). Matters of general

importance to all or several defendants were discussed at

conferences held out of the presence of the jury and in the

presence of all counsel (Tr. 296, 346, 440-446, 481, 495-499,

538-541, 666-682, 1416-1443, 1554-1556, 1841-1845, 2290-

2295).

‘

Petitioner Payne points to no instance in which the trial

court's procedures for conducting bench conferences

adversely affected his representation. The district court's

conduct of the trial merely conformed to the necessities of a

large trial involving several defendants. Petitioner Payne’s

attorney was regularly given the opportunity to address the

trial judge out of the jury’s presence, and there is no basis for

any claim that petitioner was denied the effective assistance

of counsel.

3. Petitioner Payne urges (78-5204 Pet. 3, 5) that

the trial court erred in admitting evidence of petitioner's

prior conviction for possession of marijuana without

requiring the prosecutor to produce a certified copy of the

judgment of conviction. At trial, petitioner Payne asserted

an entrapment defense. During cross-examination he

conceded that he had been convicted of possessing 165

‘According to petitioner (78-5204 Pet. 3), a co-defendant moved

to have the transcript expanded to include the ruling, but that

motion was denied.

pounds of marijuana in 1975 (Tr. 1912). Upon redirect

examination, however, Payne testified that he was in fact

innocent of the prior offense and that he had pleaded guilty

to that charge only because his defense witness was

unavailable (Tr. 1913-1914). A narcotics agent testified

during the government's rebuttal that he had observed

Payne commit the prior offense and that he had been

present at the guilty plea proceedings. Contrary to Payne's

testimony, the agent stated that Payne’s purported defense

witness was available to testify if a trial had been held (Tr.

2270-2277).

Petitioner has conceded the fact of the prior conviction,

Since there was no dispute at trial that petitioner previously

had been convicted, there was no reason to produce a

certified record of that conviction. A copy of the judgment

would have revealed no relevant information concerning the

dispute that arose at trial regarding the facts underlying the

conviction. Accordingly, the court properly rejected

petitioner's request that the official record of conviction be

produced at trial.

4. Petitioners claim (78-5204 Pet. 5-7; 78-209 Pet. 18-19)

that they were prosecuted in violation of the Petite policy.

On October 15, 1975, petitioners were arrested by state law

enforcement officers in Arkansas. They were subsequently

convicted in state court of possession of marijuana.

Thereafter, the present federal indictment was returned, and

petitioners were tried and convicted in federal court. The

state and federal convictions both arose from the same

criminal scheme.

The federal prosecution was not authorized in advance

by the Attorney General, or Assistant Attorney General, in

accordance with the Petite policy, adopted by the Depart-

ment of Justice to limit successive federal and state

prosecutions to cases where there are compelling reasons for

the federal prosecution. See Rinaldi v. United States, 434

U.S. 22 (1977); Petite v. United States, 361 U.S. 529 (1960).

However, on December 17, 1977, while petitioners’ appeals

were pending, the federal prosecution was authorized nunc

pro tunc by Attorney General Bell.

Petitioners first raised the claim that the federal

prosecution violated the Petite policy in petitions for

rehearing before the court of appeals. Petitioners contended

that the federal prosecution was barred because it was not

authorized in advance in conformity with normal practice

under the Petite policy. The court of appeals rejected this

claim, relying upon its prior en banc decisions in United

States v. Thompson, No. 76-1883 (June 15, 1978), cert.

denied, No. 78-5087 (Oct. 10, 1978), and United States

v. Fritz, No. 77-1027 (July 3, 1978), petition for a writ of

certiorari pending, No. 78-5192.

The petitioner in Thompson was indicted along with the

petitioners in this case, and the prosecution of petitioners

and Thompsen was authorized nunc pro tunc at the same

time by the Attorney General.® We therefore rely upon our

memorandum in Thompson, in which we submitted that the

administration of the Petite policy represents an exercise of

prosecutorial discretion by the Department of Justice and

creates no judicially enforceable rights in defendants,

that the nunc pro tunc authorization of federal prosecu-

tions complies with the aims of the Petite policy, and that,

in any event, no prejudice results from such authoriza-

tions.’

“Thompson pleaded guilty in federal court to conspiracy to distribute

marijuana after he had been convicted of possession of marijuana in

state court.

"We are sending a copy of our memorandum in Thompson to

petitioners’ counsel.

5. Petitioner French contends (78-209 Pet. 1 1-18) that the

indictment must be dismissed because his wife testified

before the grand jury in violation of the privilege against

adverse spousal testimony.* But the indictment is facially

valid, and “an indictment valid on its face is not subject to

challenge on the ground that the grand jury acted on the

basis of inadequate or incompetent evidence. Costello v.

United States, [350 U.S. 359 (1956)]; Holt v. United States,

218 U.S. 245 (1910) * * *.” United States v. Calandra, 414

U.S. 338, 345 (1974). See Lawn v. United States, 355 U.S.

339, 349-350 (1958). Petitioner's claim that the grand jury

heard incompetent evidence thus provides no basis for

dismissal of the indictment.?

Petitioner argues that the prosecutor acted in bad faith in

calling petitioner’s wife before the grand jury and that

the indictment should therefore be dismissed. In the

government’s response to a pretrial motion filed by

French, however, the prosecutor advised the district

court that (R. 224-225):

[P]rior to the January Session of the Grand Jury,

Assistant United States Attorney Floy Dawson entered

into plea bargain discussions with defendant’s counsel

relative to Barbara French [petitioner’s wife]. It was

agreed that Barbara French would remain as unin-

dicted co-conspirator, in return for her testimony and

co-operation. When asked about the “husband-wife”

‘The privilege against adverse spousal testimony is distinct from the

privilege against disclosure of confidential marital communications.

United States v. Fisher, 518 F. 2d 836, 838 n.2 (2d Cir.), cert. denied, 423

U.S. 1033 (1975); 8 Wigmore, Evidence § 2334 (McNaughton rev.

ed. 1961). Petitioner relies only upon the former privilege.

*Petitioner French asserts (78-209 Pet. 4) that his wife was the only

witness to testify before the grand jury. The prosecutor represented to

the district court, however, that in fact numerous other witnesses

testified against petitioner French before the grand jury, and that their

testimony was ample to support the indictment independent of any

testimony by French's wife (R. 335-336).

10

privilege problems that could arise from this situation,

Assistant United States Attorney Dawson was advised

that [petitioner] Larry French was going to plead

guilty, and accordingly, there would be no problems in

this regard.

After the indictment was returned, petitioner French

pleaded not guilty. The negotiations leading to the

appearance of Barbara French before the grand jury,

however, reveal that the claim of prosecutorial misconduct

is unfounded.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCRrEE, JR.

Solicitor General

PHiLip B. HEYMANN

Assistant Attorney General

JAMES A. HUNOLT

Attorney

OCTOBER 1978

DOJ-1978-10