Opposition — Badger v. United States

a.“

evacas Court, Us

PILE

TOHAEL S0OAK, JR, CLERR

In the Supreme Court of the Hnited Stats

OcTOBER TERM, 1979

GEORGE H. BADGER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

WADE H. McCree, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Hansford v. United States, 303 F. 2d 219 .......... 4

Kadis v. United States, 373 F. 2d 370 ................ 4

Lopez v. United States, 373 U.S. 427 .............. 4

Munroe v. United States, 424 F. 2d 243.000.0000... 3

United States v. Buckley, 586 F. 2d 498,

I I FO OU oe ci eccaas 4

United States v. Christopher, 488 F. 2d

eR ek: PREETI NS RL SORT ea ee a 4

United States v. Demma, 523 F. 2d 981 ............ 4

United States v. DeVore, 423 F. 2d 1069,

ae SR en 4

United States v. Greenfield, 554 F. 2d 179,

CORE: GRU, BF UI TD vases ccescvesccvecescvdccoeascas 4

United States v. Johnston, 426 F. 2d 112. .......... 4

United States v. Perry, 478 F. 2d 1276,

Gmet. em, SHE U.S. COS acccccccsccscccccecvesccsassss 5

United States v. Rodrigues, 433 F. 2d 760,

UE. I, IE Ry We sacacectaciksdccinceescnssenescs 4

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

United States v. Shameia, 464 F. 2d 629,

CNR, Ai PO iiccctdicsccdistecacde 4

Il

Page

Cases—(Continued):

United States v. Tharpe, 443 F. 2d 12.

Me, Se EE, BD an. crivncessscceiccinecesccacen 5

United States v. Watson, 489 F. 2d 504 ............. 4

Statue:

18 U.S.C. 201(b)(1)

In the Supreme Court of the Hnited States

OcToBER TERM, 1979

No. 79-1820

GEORGE H. BADGER, PETITIONER

we

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that the jury should have been

instructed concerning the defense of entrapment.

1. After a jury trial in the United States District Court

for the District of Utah, petitioner was convicted of

attempted bribery of an IRS agent, in violation of 18

U.S.C. 201(b)(1). He was sentenced to five years’

imprisonment. The court of appeals affirmed (Pet. App.

11-20).

The evidence at trial showed that petitioner, aided by

co-defendant Betty Mildenhall,’ offered IRS Agent

Thomas Harkness a $20,000 bribe to close a criminal tax

'Mildenhall was also convicted and was sentenced to two years’

imprisonment. Her conviction was also affirmed on appeal, but she

has not filed a petition for a writ of certiorari.

(1)

2.

fraud investigation that Harkness was conducting concern-

ing petitioner. Mildenhall was a secretary in the Salt

Lake City IRS office; Harkness suspected her of leaking

information to petitioner about the investigation (Pet.

App. 13, 15).

On September 15, 1977, Mildenhall whispered to

Harkness that petitioner would be willing to pay him

$100,000 to close the investigation (Pet. App. 13-14; Tr.

51). Harkness immediately reported this overture to his

superior, and the IRS Internal Security Division was

contacted (Pet. App. 14; Tr. 52, 55). Harkness was then

directed to telephone Mildenhall at home that evening in

order to determine whether her offer was serious (Tr. 56,

207). He was also instructed not to bring up the subject of

the bribe offer but rather to call her and discuss their

mutual problems with a supervisor (Pet. App. 14; Tr. 56-

57). During the course of this conversation, which was

recorded, Mildenhall again suggested that Harkness

“make a deal” with petitioner, and Mildenhall also asked

Harkness if he would be willing to take a bribe (Pet. App.

14; Tr. 69-71).

After additional conversations to set up a meeting,

Harkness met with petitioner at Mildenhall’s home on

September 20 (Pet. App. 14; Tr. 73-80). Petitioner told

Harkness that he wanted the criminal case “put to bed”

(Tr. 83, 85) and, after discussing various ways in which

Harkness could be rewarded, eventually suggested a

$20,000 payment (Pet. App. 14-15; Tr. 81-88). Petitioner

also sought assurances from Harkness that he would

remove the most damaging evidence from his file so that

it would be too difficult to reconstruct a case against him

should anyone want to do so in the future (Tr. 90). After

several inquiries from Mildenhall in the next few days

about the status of petitioner’s case, Harkness wrote a

fictitious closing report and showed it to Mildenhall (Pet.

3

App. 15; Tr. 91-98). On September 29. Harkness again

met with petitioner at Mildenhall’s home. Petitioner

counted out $1,000 and said that the rest would be paid

through a Swiss bank account. Harkness handed

Mildenhall a copy of the false closing report, and she gave

Harkness the money (Pet. App. 15; Tr. 98-101).

Mildenhall testified in her own defense and said that

Harkness made the first overture to her, asking if

petitioner would make a deal with him and stating that he

could discontinue the investigation against petitioner (Pet.

App. 16; Tr. 252, 258-259). Mildenhall denied any

knowledge of a bribe attempt and testified that she set up

the meetings so that petitioner could help Harkness

establish a private accounting practice (Pet. App. 16; Tr.

257-264, 272-273). Petitioner did not testify at trial.

During the conference on instructions. petitioner's

counsel requested an entrapment charge. apparently

conceding that petitioner admitted the facts of the instant

attempted bribery offense but denying any criminal intent

on petitioner’s part (Pet. App. 15-16).2. Government

counsel argued that there was insufficient evidence of

entrapment as to petitioner to warrant an entrapment

instruction (Tr. 300, 303, 310-311). The district court

refused to instruct on the defense of entrapment. The

court of appeals affirmed on the basis of its en banc

decision in Munroe v. United States, 424 F. 2d 243, 244

(10th Cir. 1970), which held that an_ entrapment

instruction should not be given unless a defendant admits

all the elements of the crime, including criminal intent

(Pet. App. 16-17). Judge McKay dissented: he was of the

2We say “apparently” because the transcript reads that counsel

“do[es] not want for the record to say that [petitioner] is prepared to

admit that he did do all of the acts that were necessary to constitute

the crime of bribery * * *” (Tr. 310; emphasis added).

4

view that a defendant need not admit criminal intent in

order to receive an entrapment instruction (Pet. App. 18-

20).

2. Petitioner contends (Pet. 5-10) that he was entitled

to an entrapment instruction because he admitted through

counsel that he had committed the acts that formed the

basis for the crime. While there is a conflict in the circuits

as to whether a defendant must admit or may deny

criminal acts and still claim entrapment,’ this case is not

an appropriate one for resolving that conflict, for

petitioner presented no evidence of entrapment at trial.

Although a defendant is not required to testify at trial

in order to present a colorable entrapment claim, he still

bears the burden of presenting some evidence either of

inducement or persuasion on the part of the government,

or of unwillingness on his part to commit the crime. See

United States v. Buckley, 586 F. 2d 498, SOI (Sth Cir.

1978), cert. denied, 440 U.S. 982 (1979); United States v.

Christopher, 488 F. 2d 849, 850-851 (9th Cir. 1973);

United States v. DeVore, 423 F. 2d 1069, 1071 (4th Cir.

1970), cert. denied, 402 U.S. 950 (1971); Kacdis v. United

States, 373 F. 2d 370, 374 (Ist Cir. 1967). Even assuming

arguendo the truth of co-defendant Méildenhall’s

testimony, i.e., that she had set up a legitimate meeting on

September 20 between Harkness and petitioner concern-

ing a private CPA practice for Harkness, and that she had

3Compare, e.g., United States v. Demma, 523 F. 2d 981 (9th Cir.

1975) (en banc); Hansford v. United States, 303 F. 2d 219 (D.C. Cir.

1962) (en banc), with United States v. Greenfield, 554 F. 2d 179 (Sth

Cir. 1977), cert. denied, 439 U.S. 860 (1978): United States v. Watson,

489 F. 2d 504 (3d Cir. 1973); United States v. Shameia, 464 F. 2d 629

(6th Cir.), cert. denied, 409 U.S. 1076 (1972): United States v.

Rodrigues, 433 F. 2d 760 (Ist Cir. 1970), cert. denied, 401 U.S. 943

(1971); United States v. Johnston, 426 F. 2d 112 (7th Cir. 1970).

5

passed along to petitioner Harkness’ statement that he

could discontinue the criminal investigation, this at the

most shows that the government merely presented

petitioner with the opportunity to incriminate himself. See

Lopez v. United States, 373 U.S. 427 (1963).

It is uncontroverted that at the September 20 meeting

petitioner, not Harkness, asked about closing the criminal

case, inquired what method of reward Harkness preferred,

and sought assurances that damaging evidence would be

removed from petitioner's file (Pet. App. 14-15). The best

evidence of petitioner’s predisposition is that of the

September 20 and 29 conversations, which were recorded;

nothing in them indicates any importuning on the part of

Harkness or any unreadiness on the part of petitioner.

Harkness’ activity failed even to constitute solicitation,

and yet solicitation alone is not sufficient to show

entrapment. See, e.g., United States v. Perry, 478 F. 2d

1276, 1278 (7th Cir.), cert. denied, 414 U.S. 1005 (1973);

United States v. Tharpe, 443 F. 2d 12, 13 (4th Cir.), cert.

denied, 404 U.S. 866 (1971). In sum, since there was no

evidence to show that the government “actually implant-

[ed] the criminal design in the mind of the defendant”

(United States v. Russell, 411 U.S. 423, 436 (1973)),

petitioner was not entitled to an entrapment instruction.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

WADE H. McCree, Jr.

Solicitor General

JULY 1980

DOJ-1980-07