Petition — Badger v. United States

Guprama Cant,

FILE

MAY 16 1980

MICHAEL RODAK, JR., CLERR

IN THE

SUPREME COURT OF THE UNITED STATES

No %9=1820

GEORGE H. BADGER,

Petitioner,

Vs.

UNITED STATES OF AMERICA

and BETTY M. MILDENHALL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURTS OF APPEALS FOR

THE TENTH CIRCUIT

GLENN C. HANNI

STRONG & HANNI

604 Boston Building

Salt Lake City, Utah 84111

Counsel of Record for Petitioner

TABLE OF CONTENTS

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QUESTION PRESENTED .....c0csccccaccssvccss

CONSTITUTIONAL PROVISIONS AND

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STATEMENT OF THE CASE ...................

REASONS FOR GRANTING THE WRIT .........

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TABLE OF CITATIONS

CONSTITUTIONAL PROVISIONS AND

STATUTES CITED

Fifth Amendment, U.S. Constitution

18 U.S.C. §201(b)(1) and (2)

CASES CITED

Crisp v. United States,

262 F.2d 68 (4th Cir. 1968) .............0005.

Griffin v. United States,

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TABLE OF CITATIONS (CONTINUED)

Hansford v. United States,

303 F2d 919 (D.C. Cir. 1962),

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Jones v. United States,

362 U.S. 257 (1960) ................ a epee

Mur.roe v. United States,

424 F.2d 245 (10th Cir. 1970) .................

Sherman v. Unitea States,

CME soso oh cccw esse cessiewesess

Simmons v. United States,

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Sorrells v. United States,

PEEMMEED ccc ccsereeessccscssccceces

United States v. Demma,

523 F.2d 981 (9th Cir. 1975)

Tt kk eee weseacedes

United States v. Groessel,

440 F.2d 602 (Sth Cir. 1971) ..................

United States v. Pickle,

424 F.2d 528 (5th Cir. 1970) ..................

United States v. Rodriquez,

433 F.2d 760 (1st Cir. 1970) ..................

United States v. Russell,

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United States v. Shameia,

464 F.2d 629 (Sth Cir. 1972) ...............:..

IN THE

Supreme Court of the United States

No.

GEORGE H. BADGER,

Petitioner,

VS.

UNITED STATES OF AMERICA

and BETTY M. MILDENHALL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURTS OF APPEALS FOR

THE TENTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to review the

judgment herein of the United States Court of Appeals for the

Tenth Circuit entered in the above entitled case on March 4, 1980,

application for rehearing denied on April 16, 1980.

OPINIONS BELOW

The United States District Court for the District of Utah

entered no opinion. Judgment on a jury verdict of guilty was

entered by that court on September 28, 1978.

The opinion of the United States Court of Appeals for the

Tenth Circuit affirming the judgment of the District Court, al-

though not officially reported, is set out in Appendix A.

The order of the Court of Appeals denying petitioner’s applica-

tion for rehearing is set out in Appendix B.

JURISDICTION

The judgment of the Court of Appeals (Appendix A) was en-

tered on March 4, 1980, and petitioner’s application for rehearing

was denied on April 16, 1980 (Appendix B). Jurisdiction of this

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

QUESTION PRESENTED

Whether the defense of entrapment should be available to a

criminal defendant in a bribery case when the defendant chose not

to testify but admitted through counsel that he performed all of the

acts necessary to constitute the crime but lacked the requisite

criminal intent (scienter) because he was entrapped.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The Fifth Amendment, United States Constitution:

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or in-

dictment 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 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 himself, 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.

2. The statute under which petitioner was prosecuted is 18

U.S.C. §201(b)(1) and (2). This statute prohibits bribery of public

officials and provides for fine and/or imprisonment for:

(b) Whoever, directly or indirectly, corruptly gives,

offers or promises anything of value to any public offi-

cial or person who has been selected to be a public

official, or offers or promises any public official or any

person who has been selected to be a public official to

give anything of value to any other person or entity,

with intent —

(1) to influence any official act; or

(2) to influence such public official or person who

has been selected to be a public official to commit or aid

in committing, or collude in, or allow, any fraud, or

make opportunity for the commission of any fraud, on

the United States.

STATEMENT OF THE CASE

Petitioner George H. Badger (Badger) and Betty Mildenhall

(Mildenhall), an employee of the Internal Revenue Service, were

arrested on September 29, 1977, and charged with the bribery of a

special agent of the Internal Revenue Service. Prior to trial Badger

informed the prosecution that he would rely upon the defense of

entrapment. In their opening remarks to the jury, both his counsel

and counsel for co-defendant Mildenhall discussed in detail the

entrapment theory upon which they relied and evidence which

would be introduced in support of this theory. (Tr. pp. 20-30)

At trial Badger, although not testifying, admitted through

counsel that he performed all of the acts necessary to constitute the

crime of bribery but that he lacked the requisite criminal intent

because he was entrapped. (Appendix A; Tr. p. 310)

Evidence was adduced at trial raising a substantial issue of

fact on entrapment. Mildenhall testified that the Internal Revenue

Service, through its agent, Thomas Harkness, first suggested a

bribe in a conversation on September 15, 1977, and then continued

to press the issue in subsequent conversations at the office and

private telephone calls to Mildenhall. (Tr. pp. 252-282; Exhibits

P2, 3, 4, and 5) Additionally, Mildenhall testified that Harkness

telephoned her and specifically requested that she set up a meeting

between him and Badger. (Tr. pp. 257-258)

Although both Badger and Mildenhall requested an instruc-

tion on entrapment, the substance of which was not challenged by

the prosecutor, the trial court refused to give these or any other

4

instructions on entrapment, saying it was bound by the en banc

decision of Munroe v. United States, 424 F.2d 243 (10th Cir. 1970).

The jury returned a verdict of guilty and judgment was sub-

sequently entered thereon. On appeal the judgment was affirmed

on the basis of Munroe, supra. The Court of Appeals articulated the

basis of its affirmance as follows:

In Munroe, the defendants admitted the acts and denied

the intent, saying that they believed the acts to be legal.

An en banc court considered the case and without any

dissent held that the defendants were not entitled to

entrapment instructions, saying, Id. at 244:

The law is well settled in this circuit that if the

defendant denies the commission of the crime

charged, the defense of entrapment is not available

to him. Appellants urge that, in this case, because

they do not deny the making of the [drug] sales, the

above entrapment rule should not be applied. We

cannot agree.

We perceive no controlling distinction between Munroe

and the situation presented by the instant defendants.

At the most they, as did the Munroe defendants, contest

the illegality of the pertinent acts. Munroe was an en

banc decision of this court. The panel hearing this case

cannot overrule an en banc decision of the court.

On March 17, 1980, thirteen days after the Court of Appeals

rendered its decision, Badger filed a petition for rehearing and

suggestion that the same be heard en banc. After the 14-day period

within which to petition the Court of Appeals for rehearing had

expired, Mildenhall sought permission to join with Badger in his

petition. Thereupon the Court of Appeals allowed her to join in the

petition but denied said petition as to both defendants.

REASONS FOR GRANTING THE WRIT

I.

By holding that as a precondition to the assertion of an en-

trapment defense Badger should have admitted that he committed

criminal acts and possessed criminal intent, the United States

Court of Appeals for the Tenth Circuit has acted in conflict with the

applicable decisions of this court and has violated Badger’s rights

under the Fifth Amendment of the United States Constitution.

It has been suggested that the right of entrapment is constitu-

tionally based and finds it moorings in the Fourth Amendment

right to be free from illegal searches and seizures, the Fifth

Amendment right to due process and to be free from coerced confes-

sions, or the Fourteenth Amendment right to equal protection

under the laws. However, even if entrapment is not constitution-

ally mandated, United States v. Russell, 411 U.S. 423 (1973), it is

nevertheless a basic and fundamental defense Sorrells v. United

States, 287 U.S. 435 (1932); Sherman v. United States, 356 U.S. 369

(1958); and United States v. Russell, supra of which Badger was

incorrectly deprived.

The result of the Tenth Circuit opinion is to place a criminal

defendant (Badger) in an unconscionable dilemma. If he asserts his

fundamental right to raise the defense of entrapment, he is forced

to forego his due process right to have the crime proven beyond a

reasonable doubt. If he asserts his Fifth Amendment and due

process rights — as did Badger — he is forced to forego the right to

raise the defense of entrapment. In either situation, it appears that

forcing a defendant to make this critical decision violates the

mandates prescribed by the Supreme Court in Simmons v. United

States, 390 U.S. 377 (1968).

In Simmons, the defendant in order to obtain standing to

support a pre-trial motion to suppress evidence on Fourth

Amendment grounds was required to give incriminating tes-

timony. This testimony was then used against him at trial. The

court found that to force a defendant to surrender one constitu-

tional right, the Fifth Amendment right against self-

incrimination in order to assert another constitutional right, the

Fourth Amendment right to exclude illegally obtained evidence

created an intolerable tension between the exercise of those rights.

6

Even if the theoretical foundation of entrapment is not con-

stitutionally based, the underlying policy of Simmons is applica-

ble. In Simmons, the court suggested that the primary concern

should be the importance of the right that the defendant has to give

up in order to assert his Fifth Amendment right against self-

incrimination. Although the Court clearly stated that if the benefit

is another constitutional right an intolerable situation is created,

the fact that the benefit is of vital importance to a defendant’s

ability to defend himself as is entrapment should not preclude the

application of the Simmons rationale.

Griffin v. United States, 380 U.S. 609 (1965), further supports

the proposition that it should be impermissible to force a defendant

to surrender constitutional rights in order to obtain the beneficial

right to raise the defense of entrapment. In Griffin, the prosecuting

attorney commented to the jury on the failure of the defendant to

testify, thereby penalizing the defendant for asserting his right to

remain silent. The Court maintained that the comment could not

be permitted because of the prejudicial effect that it might have on

the jury. This prejudicial effect, the Court concluded, would

penalize the defendant for exercising his Fifth Amendment right

against self-incrimination and thereby make the assertion of that

constitutional right costly to him. Similarly, a defendant in an

entrapment case who exercises his Fifth Amendment privilege

against self-incrimination is also penalized because he is forced to

forego the benefit of the defense of entrapment or, if he asserts the

entrapment defense, he is penalized because he is forced to forego

his Fifth Amendment right against self-incrimination.

In Jones v. United States, 362 U.S. 257 (1960), petitioner was

charged with narcotics offenses which were proved by the fact of

possession alone. However, in order to have standing to attack the

search which produced the narcotics, he was required to admit

possession. Thus, petitioner’s ability to make a motion to suppress

was necessarily keyed to an admission of the crime. This Court

held that under those conditions, the accused was released of

establishing ownership or possessicn.

Entrapment cases are of course the same. The admission re-

quired to establish standing to raise the defense is an admission of

the crime charged. Jones clearly establishes that when the tes-

*%

7

timony given to obtain standing would be an admission of the

crime, the testimony need not be given.

Although not constitutionally articulated, the entrapment de-

fense is supported by the same policies which support the Fourth

Amendment and should be entitled to a similar level of implemen-

tation. By requiring a defendant to admit that he committed all

elements of a crime before he is entitled to an entrapment defense

violates the defendant’s Fifth Amendment right against self-

incrimination and Fifth Amendment due process right to have all

elements of the crime proven by the government beyond a reason-

able doubt.

Il.

There is a sharp conflict among the Federal Circuit Courts

regarding what, if any, admissions a criminal defendant must

make in order to avail himself of an entrapment defense. This

Court should settle the law on this vital question.

The Circuit Courts have taken three separate and distinct

positions. The District of Columbia Circuit, Fourth Circuit and

Ninth Circuit Court of Appeals all hold that a defendant may

assert his innocence to both the “actus reas” and “mens rea” por-

tion of the crime and still be entitled to an entrapment instruction.

Hansford v. United States, 303 F.2d 919 (D.C. Cir. 1962), (en banc);

Crisp v. United States, 262 F.2d 68 (4th Cir. 1958); and United

States v. Demma, 523 F.2d 981 (9th Cir. 1975) (en banc).

In Demma, supra, the Ninth Circuit stated that this position is

the most consistent with Sorrells, supra, Sherman, supra, and

Russell, supra, and that the strict inconsistency theory (applied by

the Tenth Circuit in this case) is unjustified because of the impor-

tant safeguard entrapment is to law enforcement and the pros-

ecution process and because “there is no conceivable reason for

permitting a defendant to assert inconsistent defenses in other

contexts but denying him that right in the context of entrapment.”

p. 985.

The First, Fifth and Sixth Circuits hold that in order for a

criminal defendant to rely upon a defense of entrapment, he must

8

admit that he committed acts necessary to constitute the crime,

but he may deny that he possessed any criminal intent. United

States v. Rodriguez, 433 F.2d 760 (1st Cir. 1970); United States v.

Pickle, 424 F.2d 528 (5th Cir. 1970); United States v. Shameia, 464

F.2d 629 (6th Cir. 1972).

The justification behind this position is that it would be incon-

sistent for a defendant to deny commission of the acts which consti-

tute a crime and yet assert a defense which presupposes the acts

were committed. In the instant case, since Badger admitted that he

performed all of the acts necessary to constitute bribery, under the

First, Fifth and Sixth Circuit application of the inconsistency

theory, he would have been entitled to a jury instruction on en-

trapment.

The Tenth Circuit perhaps stands alone in its adherence to a

strict inconsistency theory. Munroe v. United States, 424 F.2d 243

(10th Cir. 1970) (en banc). Criminal defendants tried in federal

courts within the boundaries of the Tenth Circuit apparently must

admit that they performed criminal acts with criminal intent

(scienter) before entrapment is available as a defense to them.

Ill.

Compelling policy reasons suggest that this Court should

exercise its supervisory powers over the federal judiciary and

abolish the Tenth Circuit rule which, as a precondition to the

assertion of an entrapment defense, requires a defendant to admit

not only that he committed a criminal act but also that he had

criminal intent when he did so.

Such a position is without logic since a defendant who was

really entrapped would have to claim he possessed a criminal

intent antithetical to the very definition of entrapment. In his

dissent in this case Judge MacKay eloquently pointed out severe

problems with such an approach:

The defense of entrapment historically and analytically

is precisely a challenge to the existence of intent. What

it says is that the person did not have the requisite

criminal intent until the government overcame his will.

9

Thus the only intent in the case legally becomes the

government’s, not the defendant’s. It defies logic to

suggest that one must admit the criminal intent when

the legally acknowledged defense is that the intent-

forming mechanisms were overcome by the wiles of the

government. It is one thing to require the admission

that the party was conscious of the physical conduct

being engaged in and that he consciously pursued that

course of conduct; it is quite another to admit that his

frame of mind met the standards of criminal intent

defined in our cases. It is clear that the latter is the only

admission that the defendants in this case refused to

make. A conclusion that admission of intent is a pre-

requisite to the entrapment defense is not only illogical,

but leads to the mischief of confusing instructions to

juries. In effect they will be instructed on the elements

of intent, followed by an instruction that the defendant

has admitted the elements of that intent, followed by

another instruction that the defendant denies the vol-

untary formation of that intent because his will was

overcome by the government.

In addition to the concerns expressed by Judge MacKay, it is

clear that adherence to a strict rule requiring a criminal defendant

to admit all elements of a crime before he can utilize an entrap-

ment defense may force a defendant into perjury. An accused who

is not factually guilty of crime may admit guilt because of a tactical

decision that entrapment is his better defense. For example, it is

not unknown for one in an official capacity to ask another for a

loan. If the payor transfers the money to the payee as a true loan,

he does not have the specific intent required for a bribery convic-

tion. It is also possible for the payment to be made at the instiga-

tion and solicitation of the payee without regard to any evil intent

on the part of the payor. If such occurs, the Tenth Circuit rule

requires the defendant-payor to choose between his defenses. He

cannot assert both lack cf scienter and entrapment.

The Tenth Circuit position is especially illogical in the instant

case since Badger did not testify and evidence of entrapment was

illicited from other sources. United States v. Demma, supra, is

illustrative. There the court stated:

'%

10

... if a defendant declines to testify at trial and other-

wise refuses to comment on the crime charged, then he

has not denied the crime. Entrapment may nonetheless

become an issue at his trial if (1) the Government’s case

in chief suggests that the defendant who was not predis-

posed was induced to commit the crime charged, or (2) a

defense or a government witness gives evidence

suggesting entrapment. In either event,... there is

simply no inconsistency. The defendant has not denied

the crime charged. At the close of a case in such a

posture, defense counsel may and, and indeed, he should

argue to the jury that (1) the Government has not pro-

ved beyond a reasonable doubt that the defendant com-

mitted the crime charged, and (2) if the Government has

so proved, then the Government has not proved beyond

a reasonable doubt that the acts charged were non-

entrapped. These arguments entail no factual inconsis-

tency; they are merely garden-variety alternative con-

tentions.

See also United States v. Groessel, 440 F.2d 602 (5th Cir. 1971).

CONCLUSION

For the reasons set forth above, petitioner respectfully prays

that a Writ of Certiorari issue to review the judgment herein of the

United States Court of Appeals for the Tenth Circuit.

Respectfully submitted this 14th day of May, 1980.

STRONG & HANNI

Glenn C. Hanni

Sixth Floor Boston, Building

Salt Lake City, Utah 84111

(801) 532-7080

Counsel for Petitioner

APPENDIX A

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 78-1935

and

No. 78-1936

Vs.

GEORGE H. BADGER and

BETTY M. MILDENHALL,

Ne meee eee ee ee

Defendants-Appellants.

Ronald L. Rencher, United States Attorney (Max D.

Wheeler, Assistant United States Attorney) with him on the

brief, for Plaintiff-Appellee.

Glenn C. Hanni (Robert A. Burton, Strong & Hanni,

with him on the brief) for Defendant-Appellant George H.

Badger.

Sumner J. Hatch for Defendant-Appellant Betty M.

Mildenhall.

Before DOYLE, BREITENSTEIN and McKAY, Circuit

Judges.

12

Defendants-appellants were jointly charged in a one-

count indictment with violation of 18 U.S.C. § 201(b) (1) and

(2), bribery of public official, and 18 U.S.C. § 2, aiding and

abetting. The jury found each guilty and each appeals. We

affirm.

Defendant Badger was under investigation for possible

criminal violations of the federal tax laws. Thomas L. Hark-

ness, the IRS special agent in charge of the investigation,

suspected defendant Mildenhall of misconduct and so in-

formed his supervisor. The ensuing observations of the two

defendants included electronic surveillance of various con-

versations.

The IRS regulations provide that telephone conversa-

tions may be monitored with the approval of a regional IRS

officer. The monitoring of nontelephone conversations re-

quires approval at both national and regional levels. Provi-

sion is made for authorization in emergency situations.

United States v. Caceres, 440 U.S. 741, 744-746.

The monitoring related to both telephone and non-

telephone conversations. Defendants asserted that such

monitoring violated various IRS regulations, and filed a

motion to suppress. After a lengthy evidentiary hearing, the

court found that IRS substantially complied with all relev-

ant regulations and denied the motion to suppress. In Ca-

ceres the question related to the suppression of evidence

obtained by electronic surveillance which was conceded to

violate IRS regulations. The Court held that such evidence

was not to be excluded because of the violation of regula-

tions. The Court said, Id, at 754-755:

“In view of our conclusion that none of respondent’s

constitutional rights has been violated here, either

by the actual recording or by the agency violation

of its own regulations, our precedents enforcing the

exclusionary rule to deter constitutional violations

13

provide no support for the rule’s application in this

case.”

In Caceres the regulation violations were conceded. In

the case at bar, they are not and the t. al court found sub-

stantial compliance. Caceres controls. The motion to sup-

press was properly denied and the evidence was properly

received.

The defendants claim error because of the refusal of the

trial court to instruct on entrapment. It must be recognized

that entrapment is a relatively limited defense, rooted “in

the notion that Congress could not have intended criminal

punishment for a defendant who has committed all the ele-

ments of a proscribed offense, but was induced to commit

them by the Government.” United States v. Russell, 411 U.S.

423, 435. After reviewing Sorrells v. United States, 287, U.S.

435, and Sherman v. United States, 356 U.S. 369, the Court

said that these two cases recognize “that the fact that officers

or employees of the Government merely afford opportunities

or facilities for the commission of the offense does not defeat

the prosecution.” Russell, 411 U.S. at 435. Citing Lewis v.

United States, 385 U.S. 206, 208-209, the Court said that the

mere fact of deceit will not defeat a prosecution, “for there

are circumstances when the use of deceit is the only practic-

able law enforcement technique available.” 411 U.S. at

435-436. In Russell the Court declined to overrule the hold-

ing of the prior cases that “the principal element in the

defense of entrapment was the defendant’s predisposition to

commit the crime.” 411 U.S. at 433.

With these principals in mind, we examine the record.

Through an interview with Tatum, a geologist who had done

some work for Badger, Harkness became aware of a possible

leak of information in the Badger investigation. Harkness

suspected Mildenhall, a typist in the IRS Salt Lake City

office. He knew that Badger and Mildenhall were ac-

quainted. On September 15, 1977, Mildenhall whispered to

14

Harkness that Badger would be willing to pay $100,000 to

have the investigation closed and that payment could be

arranged through Badger’s “Swigs banking friends.” Hark-

ness immediately reported this incident to his supervisor

and made a memorandum covering it.

Arrangements were made for the interception of tele-

phone calls and the electronic monitoring of nontelephonic

conversations. Harkness and Mildenhall had previously

complained to each other about their supervisor. Harkness

was instructed to call Mildenhall on a tapped telephone and

discuss their problems with the supervisor, but not to men-

tion a bribe. The telephone call was made and in the course of

‘he conversation Mildenhall said, “You ought to go and

make a deal with George [Badger].” Harkness testified

further with reference to the telephone conversation:

“A. ~ We discussed the case a little further

and then she said, ‘Now you wouldn’t be willing to

take a bribe, would you, Tom?’ and I said, ‘Well I

don’t know, I really wouldn’t — I didn’t know.’

Q. Did you initiate any discussion about the

bribe during that second conversation?

A. No, I did not.

Q. What was the first word mentioned about

this bribe or about a payoff first?

A. She said that I should go to George and

make a deal with him.”

Subsequently, Mildenhall arranged clandestine meet-

ings of herself, Badger, and Harkness. On September 20 the

three met in Mildenhall’s home. The conversations were

recorded. Badger suggested several ways in which Harkness

might be rewarded, and asked how he could know whether

15

the case was closed and Harkness said, “Really the only way

you could know if either you had a copy of the final closing

report or if Betty told you that the case was closed.”

Harkenss testified that later Mildenhall said that

Badger was going to pay him, Harkness, $20,000 to close the

criminal case. With knowledge of his superiors, Harkness

prepared a fictitious closing report, and showed it to Mil-

denhall.

On September 29, Harkness, outfitted with electronic

recording equipment, met in Mildenhall’s home with her

and Badger. Badger placed 10 $100 bills on a table and said,

“It would be best if he delivered the other $19,000 to a Swiss

bank account so that there would be no record of it.” Hark-

ness gave a copy of a closing report to Mildenhall who

handed it to Badger. Mildenhall then gave the $1,000 to

Harkness, saying, “Here’s your money.” The statements of

the parties at this meeting were all recorded.

IRS agent DeBoer identified the tapes of the telephonic

and nontelephonic conversations and they were received in

evidence. The defendants were arrested in Mildenhall’s

home and the 10 $100 bills confiscated.

Badger did not testify at the trial. The only witness in

his behalf was Gilchrest, an accountant, who testified that

with Badger’s knowledge and approval he gave various

documents to the IRS agent who were investigating Badger.

During the argument on the instructions, counsel for Badger

said:

“Your honor, since we were last in session here

I have been out talking with my client, talking

with my associate, Mr. Burton, and while we do not

agree with the Court’s interpretation of what the

Tenth Circuit law is, we do not want for the record

to say that defendant Badger is prepared to admit

that he did do all the acts that were necessary to

16

constitute the crime of bribery but that he lacked the

requisite intent because he was entrapped and we

renew our request then that the Court in light of

that give the entrapment instruction.” (Emphasis

supplied.)

Mildenhall testified in her own behalf. With reference to

her September 15 conversation with Harkness, Mildenhall

said that Harkness asked, “Do you think George [Badger]

would make a deal with me?” She replied, “Sure, why don’t

you get him to give you $100,000. Maybe he’ll set you up a

Swiss bank account.” She further testified that her remark

was made “jokingly” and was “flippant.” She got in touch

with Badger and arranged for him and Harkness to meet in

her home on September 20th. She further said that she

thought that the discussion between Harkness and Badger

was friendly and related to help that Badger might give

Harkness to leave IRS and enter the private practice of

accountancy. She denied handing the money to Harkness at

the September 29 meeting and said that she thought that it

was a retainer for CPA work. The trial court summarized

Mildenhall’s position thus:

“*** she also denies any wrongdoing, and pur-

pose of wrongdoing. — She thought that it was all

legitimate and proper.”

Each defendant requested an instruction on entrap-

ment. The government does not question the form of the

requested instruction. The argument of each defendant is

that the denial of the requisite intent does not preclude an

entrapment instruction. The court refused to give the en-

trapment instruction saying that it was bound by the deci-

sion of the Tenth Circuit in Munroe v. United States, 10 Cir.,

424 F.2d 243.

In Munroe, the defendants admitted the acts and denied

the intent, saying that they believed the acts to be legal. An

17

en banc court considered the case and without any dissent

held that the defendants were not entitled to entrapment

instructions, saying, Id. at 244:

“The law is well settled in this circuit that if the

defendant denies the commission of the crime

charged, the defense of entrapment is not available

to him. Appellants urge that, in this case, because

they do not deny the making of the [drug] sales, the

above entrapment rule should not be applied. We

cannot agree.”

We perceive no controlling distinction between Munroe

and the situation presented by the instant defendants. At

the most they, as did the Munroe defendants, contest the

illegality of the pertinent acts. Munroe was an en banc

decision of this court. The panel hearing this case cannot

overrule an en banc decision of the court.

The defendants say that in the Tenth Circuit the law on

entrapment is unclear. See discussion in United States v.

Shameia, 6 Cir., 464 F.2d 629, 630, cert. denied 409 U:S.

1076, and compare Martinez v. United States, 10 Cir., 373

F.2d 810, 811-812, with United States v. Gurule, 10 Cir., 522

F.2d 20, 23. Specifically, defendants contend that Munroe is

wrong and must be reconsidered in the light of such cases as

the en banc Ninth Circuit decision in united States v.

Demma, 9 Cir., 523 F.2d 981. Any reconsideration of Munroe

must be by the court en banc.

Affirmed as to each defendant.

Nos. 78-1935 and 78-1936 — UNITED STATES OF

AMERICA vs. GEORGE

H.BADGER and BETTY

M. MILDENHALL

18

McKAY, Circuit Judge, Dissenting:

Earlier in the consideration of this case, I concurred in

the court’s opinion and disposition because I believed it was

unnecessary at this stage to reach the question of whether

Munroe v. United States, 424 F.2d 243 (10th Cir. 1970) (en

banc), should be reexamined. On further reflection, I have

concluded that an abridged statement of my views should be

set forth at this time rather than deferred to some uncertain

time in the future. My views lead me to the conclusion that

the disposition reached by the majority is incorrect, al-

though I confess that only the en banc court, not this panel,

has the authority to reach the correct result.

The controlling issue for me is the availability of the

entrapment defense where a defendant admits all of the

conduct but denies the requisite criminal intent. It is true

that in Munroe this court held that the intent as well as other

elements must be admitted before the instruction may be

given.! Unfortunately, none of the Supreme Court or Tenth

Circuit antecedents of Munroe involved facts which would

test the analytical difference between the admission of the

general conduct and the admission of criminal intent.2 They

1 Munroe apparently also requires an admission that the committed

acts were illegal in order to assert the entrapment defense. Intent as it is

usually understood — i.e., intent to perform the specific acts — had been

conceded, but Munroe denied that his actions constituted crimes. 424 F.2d

at 244.

2 For example, in Sorrells v. United States, 287 U.S. 435 (1932), the first

Supreme Court entrapment case, scienter was not even an element of the

alleged offense. In Sherman v. United States, 356 U.S. 369 (1958), a

government informer’s own testimony established the existence of en-

trapment as a matter of law. In Martinez v. United States, 373 F.2d 810

(10th Cir. 1967), the defendant received an entrapment instruction. Row-

lette v. United States, 392 F.2d 437 )10th Cir. 1968), merely quotes

conclusory language from Martinez. In United States v. Freeman, 412

F.2d 1181 (10th Cir. 1969), the defendant had denied the physical conduct

alleged in the indictment. United States v. Russell, 411 U.S. 423 (1973),

the foremost post-Munroe statement of the Supreme Court, merely reem-

phasized that the focus in entrapment cases is on the defendant’s predis-

position to commit the crime, not on the government’s overall involvement

in the criminal scheme.

19

did of course use unnecessarily sweeping language which in

effect said “all elements” must be admitted for the assertion

of the entrapment defense. While the en banc Tenth Circuit

may well have considered those analytical differences, the

opinion on its face does not reveal that process, but rather

clearly appears to rely on the language of those earlier cases.

If we attempt to rationalize the required admission of crimi-

nal intent with the giving of an entrapment instruction, I do

not believe we can continue to adhere to the rule of Munroe.

The defense of entrapment historically and analytically

is precisely a challenge to the existence of intent. What it

says is that the person did not have the requisite criminal

intent until the government overcame his will. Thus the

only intent in the case legally becomes the government’s, not

the defendant’s. It defies logic to suggest that one must

admit the criminal intent when the legally acknowledged

defense is that the intent-forming mechanisms were over-

come by the wiles of the government. It is one thing to

require the admission that the party was conscious of the

physical conduct being engaged in and that he consciously

pursued that course of conduct; it is quite another to admit

that his frame of mind met the standards of criminal intent

defined in our cases. it is clear that the latter is the only

admission that the defendants in this case refused to make.

A conclusion that admission of intent is a prerequisite to the

entrapment defense is not only illogical, but leads to the

mischief of confusing instructions to juries. In effect they

will be instructed on the elements of intent, followed by an

instruction that the defendant has admitted the elements of

that intent, followed by another instruction that the defen-

dant denies the voluntary formation of that intent because

his will was overcome by the government. For these reasons

and the reasons more fully explored by the Ninth Circuit in

United States v. Demma, 523 F.2d 981 (9th Cir. 1975), I

believe this case should be set en banc and that Munroe

should be overturned insofar as it fails to make the essential

distinction between the admission of criminal intent and the

20

admission of the other elements of the charged crime as a

prerequisite to asserting the entrapment defense.

APPENDIX B

MARCH TERM — April 16, 1980

Before Honorable Oliver Seth, Chief Judge, Honorable Jean

S. Breitenstein, Honorable William J. Holloway, Jr., Honor-

able Robert H. McWilliams, Honorable James E. Barrett,

Honorable William E. Doyle, Honorable Monroe G. McKay,

Honorable James K. Logan and Honorable Stephanie K.

Seymour, Circuit Judges

UNITED STATES OF AMERICA,

)

)

Plaintiff-Appellee, )

) No. 78-1935

vs. ) and

) No. 78-1936

)

)

)

)

GEORGE H. BADGER,

BETTY M. MILDENHALL,

Defendants- Appellants.

This matter comes on for consideration of appellants’

petitions for rehearing and suggestions for rehearing en

banc, which were filed out of time. Appellant Mildenhall

petitioned the Court for permission to join with appellant

Badger in the petition for rehearing and suggestion for re-

hearing en banc.

Upon consideration whereof, it is ordered:

1. Appellants are granted leave to file the petitions for

rehearing and suggestions for rehearing en banc out of time.

2. The petitions for rehearing are denied by the panel

that rendered the decision sought to be reheard. Circuit

Judge McKay voted to grant rehearing.

3. Circuit Judge McKay requested a vote on the

suggestions for rehearing en banc, and a vote was taken. the

majority of the Court voted to deny the suggestions, and it is

22

ordered that the suggestions for rehearing are denied. Cir-

cuit Judge McKay voted to grant the suggestions.

al

/S/

HOWARD K. PHILLIPS

Clerk