Petition — Olkon v. Minnesota

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Supreme Court, U, $. gs

FILED

80-879 NOV 28 1980

No. MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the GQnited States

OCTOBER TERM 1980

ELLIS OLKON,

Petitioner,

vs.

STATE OF MINNESOTA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Minnesota

PETITION FOR A WRIT OF CERTIORARI

JACK NORDBY

430 Oak Grove Street

Suite 205

Minneapolis, MN 55403

(612) 874-6426

Counsel of Record for Petitioner

1980—Northwest Brief Printing Co., 316 Chicago Avenue, Minneapolis 55415--338-5078

QUESTIONS PRESENTED

Do the doctrine of entrapment and due process of law

forbid conviction for a non-contraband offense (attempted

theft) where extensive police deceptions assure the ac-

cused, a lawyer of good reputation not suspected of any

wrongdoing, that the conduct solicited is not unlawful,

in the following circumstances:

A police agent posing as an accident victim, wearing a

neck brace and walking as if in pain, tells the lawyer he

was injured and confirms the injury by producing another

agent posing as his companion in the accident, an offical

accident report fabricated by police, a repair bill for the

vehicle, medical reports from two doctors (which say the

patient is mentally unstable as well as physically in-

jured), and billings for lengthy actual hospitalization and

treatment for the injuries; the agent conceals the fact that

he has an actual pre-existing injury from the doctors and

the lawyer; the medical society (at police instigation)

falsely tells the lawyer upon two inquiries that the doctor

in question is in good standing; two insurance companies

(also in collusion with the police) falsely represent to the

lawyer they have coverage and (again at police urging) set-

tle the case without adversary investigation; the police

agent makes intentionally ambiguous statements, incon-

sistent with the other evidence, that he was not really in-

jured, but never claims the accident did not actually oc-

cur; and there is no evidence of the lawyer’s predisposi-

tion to commit any fraud?

REPORTS OF OPINIONS BELOW

The opinion below, State v. Olkon, — NW2d — (filed

August 29, 1980, Minnesota Supreme Court, No. 315 -

50966) is not yet reported, but appears in the Appendix

hereto.

on JURISDICTION

Date of Judgment Sought to be Reviewed: August 29,

1980.

Date of Order Denying Rehearing: September 29,

1980.

Statutory Provision Believed to Confer Jurisdiction: 28

U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS

Amendment V

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

erwise infamous crime, unless on a presentment or indict-

ment 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 offense 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.

Amendment XIV Section ]

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, lib-

erty, or property, without due process of law; nor deny

to any person wthin its jursdiction the equal protection

of the laws.

TABLE OF CONTENTS

Page

INE EU ee ee uy ream i

separ Of Opinions Below . .... oc kiccc cle dbces: ii

I A Oe i a ns ii

COMMIUINOMIAL PYOVISIONS «00... wet ccs e ewes li

TE PO 6 0.5 0's Sch as ah Os Oe Kee ce iii

I ane bb pbc cob cee Chas 1

POE IRA Ma a ak > oy a oie 6 0564.6 Wo Ree oa 14

CN a bee ob U0 oes oko won eRe ono » ae

APPENDIX INDEX

Opinion of the Majority of the Minnesota Supreme

RCA a swiss niin s emis Ob hot ges ake A-1

Opinion of Dissenting Justices Yetka and Wahl ....A-43

Order Denying Rehearing ............0ccccses. A-54

Order and Memorandum of Trial Court, August 16,

eae ee A-55

Hospital Reports 2nd Billings ..................A-75

TABLE OF AUTHORITIES

Court Decisions:

Hampton v. U.S., 425 U.S. 484 (1976) ..14, 15, 27. 28

In Re Horwitz, 360 Ill. 313, 196 N.E.2d 208 (1935)

inte te baa ke eae b eae ed ae hi on ed eee it 22, 24

Newman v. United States, 299 F. 128 (4th Cir. 1924) 23

Olmstead v. U.S., 277 U.S. 438 (1928) ............ 27

Sherman vy. U.S., 356 U.S. 369 (1958) ............ 15

Onnwne VY. Ci, 2OT We, OS CLOSE). cone bv ke oe cus 15

State v. Grilli, 304 Minn. 80, 230 N.W.2d 445

Ee Sete Oat ee eioien 13, 20; dv ahy 25

U.S. v. Archer, 486 F.2d 670 (2nd Cir. 1973) .26, 27, 28

U.S. v. Nixon, 418 U.S. 683 (1974) .............. 21

wo. ¥, Russell, 411 0.8, 423 (1973)... 15

U. S. Constitutional Provisions:

NT Bi ay IIE ES ie ae Es ae ae ae &

Pu ER UM Et nk ova cle eee céetlannetovs ii

Rules and Statutes:

Rule 17 (1)(a), Rules U.S. Supreme Court ......... 28

ph 6 coos NR. IRR GCS TS i a a ea 26

SMa I CROP LOE ose bc ke stewed beeoves ii

Other Sources and Texts and Articles Cited:

American Law Institute, Model Penal Code Section

2.13 (1) (Proposed Official Draft 1962) ......... 20

Anno., Defense of Entrapment in Contempt Proceed-

Ny Sk PE ERE ok oon Sis! 80 bs rd we eels ea 25

Anno., Entrapment to Commit Bribery or Offer to

PTE, GOURD OT Sci chek wpe tecavnes 25-26

Anno., Entrapment to Commit Offense Against Laws

Regulating Sales of Liquor, 55 A.L.R.2d 1322 ... 26

Anno., Entrapment to Commit or Attempt Abortion,

Dar SER WGI ci ae'u reek Gd Cask a bees 0 oe cmp oc 26

Anno., Entrapment to Commit Offense Against Ob-

SOU EM FE Picked FOE Se ccc ticececce 25

Anno., Entrapment with Respect to Violation of Fish

and Game Laws, 75 A.L.R.2d 709 ............. 25

Anno., Entrapment to Commit Crime with Respect to

Gambling or Lotteries, 31 A.L.R.2d 1212 ...... 26

Anno., Entrapment to Commit Sexual Offense, 52

PA EE es a4 kb ahs bie an ee 5 haa waa 26

Anno., Instructing on Burden of Proof as to Defense

of Entrapment in Federal Criminal Case, 28

PE, Tce a ho crete ds wh awa hea he 25

Anno., Larceny: Entrapment or Consent, 10 A.L.R.

Oe CU as NCO hw NN es Cy wenden oho R os Cawewen 25

Anno., Propriety and Prejudicial Effect in Federal

Criminal Case of Instruction Distinguishing “Law-

ful” and “Unlawful” Entrapment, 39 .A.L.R.F2d

EN ee ey ay ea Cr Po Re ae Peay oe eS

Annos., Entrapment to Commit Crime witk View to

Prosecution Therefor, 18 A.L.R. 146, 66 A.L.R.

ae Se: SD 5: 5g ss nb nein tice b ae oores

Comment, Elevation of Entrapment to a Constitution-

al Defense, 7 U.Mich.J.L.Ref. 361 (1974) .......

Comment, Entrapment: A Critical Discussion, 37 Mo.

Bie Es eos 4k nk dod be be

DeFeo, Entrapment as a Defense to Criminal Respon-

sibility: Its History, Theory and Application, 1

Chae ee Se APOED a iw dkb caw eeweewse

Donnelly, Judicial Control of Informants, Spies, Stool

Pigeons and Agent Provocateurs, 60 Yale L.J.

EC he ies sh wd ck ob eWke deco as

R. Scott Long, Entrapment—A Due Process Defense

—What Process is Due? p. 11, Southwestern Uni-

versity Law Rev. 663 (1979) 2.6... cc cccccccccs

Note, Criminal Procedure—The Entrapment Defense

—A Reexamination, 25 Mercer L.Rev. 957 (1974)

Note, Rejection of the Conduit Theory of Entrapment,

Hampton v. United States, 425 U.S. 484 (1976), 8

pS Bg, SRR Ge ee ee eo

Park, The Entrapment Controversy, 60 Minn.L.Rev.

PE Sac euhticthens ois odes dus awe cers

Tanford, Entrapment: Guidelines for Counsel and the

Courts, 13 Crim.L.Bull. S$ (1977) ... 2 ccccccccvn

IN THE

Supreme Court of the Gnited States

OCTOBER TERM 1980

No.

ELLIS OLKON,

Petitioner,

Vs.

STATE OF MINNESOTA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Minnesota

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

Petitioner is a Minneapolis, Minnesota, lawyer, con-

victed of two counts of attempted theft by swindle’ for

submitting insurance claims on behalf of a disguised po-

lice officer posing as a personal injury client who, with

the aid of law enforcement and other agencies and insur-

ance companies, presented extensive evidence of his ac-

cident and injuries including accident and medical re-

ports, and then said he was not really injured.

1The jury was unable to agree on two counts of conspiracy.

During an investigation of medical fraud, police de-

vised a scheme to have a disguised officer (Powers) ap-

proach a suspected doctor (Dr. Coifman) posing as an

accident victim interested in making a fraudulent insur-

ance claim; Powers had an official accident report and

false identification documents, fabricated by police; Coif-

man examined Powers and prescribed a neck brace and

hospitalization. A Coifman associate (Neff, not a doctor)

referred Powers to one lawyer, but Powers knew that law-

yer and he asked for another; Neff then suggested Peti-

tioner Olkon, a Minneapolis lawyer of excellent reputa-

tion for honesty, integrity and community service, about

whom nothing untoward was suspected, who thus be-

came involved in the police scheme quite by chance.

Powers called Petitioner’s office on June 22, 1978, tell-

ing a paralegal he and a friend (Elizabeth Saunders, also

a disguised police agent) had been rear-ended, were be-

ing treated by Coifman, and asking for an appointment

or to have Petitioner visit him at a hospital where he ex-

pected to be confined. On June 26, Powers came to Peti-

tioner’s office,” wearing a neck brace and walking stiffly,

as if in great pain, with Saunders; both described the ac-

cident and their injuries to Petitioner and his assistant,

and Powers presented an official police accident report

and receipt for obtaining it, both reproduced below, (we

set these documents out so the Court will appreciate their

official and persuasive appearance and understand the

persuasive impact they would have upon any lawyer to

whom they were presented):

2At this time Petitioner was vader the stress of being a witness in a

case in which he, his wife and mother-in-law had been robbed, Peti-

tioner tortured, and his children threatened by a man who killed an

assistant U.S. Attorney in California.

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The other driver, Mr. Barnes, existed; the information

about him was correct; he, too, was cooperating in the

police scheme. Powers also carried a falsified driver’s li-

cense and a falsified welfare card, and he gave Petitioner

a repair bill for the damage to the vehicle, as follows:

OSTLUND AUTO BODY mae

133 - SW COUNTY ROAD/S— OSSEO, MINNESOTA 55369 Sor Semone. DEFT:

Phone: 425-2226 (Ie.

Small Business + Low Overhead = Individual Attention and Lower Prices

Pa, Pe WPS

Specialists in VW Repair 6 ~/9- 75 7

Replace _ Repair Description of Repair Farts Labor

wot) Eat oP Can De mpen— Reces. Te.%) Ae

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wm Ate Roweas - | Total Labor4¥ (2, /G¥——

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ge Se re ad ha R he Ztewe — Lie : R 25 - bot- T tal Parts

abe Stl IKE Se betec f . tes hew (sfed = a= sm | Tax j 5: G*

ZO Aog § | TOTAL 43 ]3.bo |

Written by Dep ‘

I heteby authorize the above repair work to be done along with the necessary material,

and hereby grant you and/or your employees permission to operate the car, truck or

vehicle herein descriled on streets, highways or elsewhere for the purpose of testing

and/or inspection, An express mechanic's lien is hereby acknowledged on above car,

teuck or vehicle to secure the amount of repairs thereto, Not responsible for loss or

damage to cars or articles left in cars in case of fire, eft or any other cause beyond

OK'd by Ser aft a > t S ourty?4

During this conversation, which Powers secretly re-

corded, Powers and Saunders described the accident and

their injuries, said the police offered to call an ambu-

lance, and specifically indicated the areas of pain; when

Petitioner told Powers he did not “look sick” and asked if

he really was, Powers replied “not really.” (Portions of

this and other recordings are reproduced in the Minne-

sota Court’s opinion in the Appendix.) A retainer agree-

ment and medical information release forms were exe-

cuted.

Because Petitioner had heard of complaints in the past

by insurance companies about Dr. Coifman’s billings and

use of hypnotherapy, he twice called the medical society

to inquire of the doctor’s status. Although the medical so-

ciety office had complaints on file, they agreed (at the re-

quest of the police) to lie to Petitioner and tell him the

doctor was in good standing and to postpone their inves-

tigation of Dr. Coifman pending the scheme’s comple-

tion.

Petitioner sent a letter of retention on July 10 to the

insurance companies ostensibly covering Powers and the

other driver. Of course Powers lied about this, too; but

the insurance companies were also part of the police

scheme, having agreed to deceive Petitioner into believing

they did carry coverage. Later they agreed to settle the

case without the usual adversary investigation and negoti-

ations. Petitioner told Powers’s insurance company to deal

directly with Powers.

In August Powers was hospitalized for 10 days, where

he was thoroughly examined and treated not only by Coif-

man, but by another totally independent physician, (En-

gel), who was not part of the police scheme. Actually

Powers had a genuine pre-existing back injury, but con-

cealed this from Coifman, Engel and Petitioner. Reports

from the two doctors, reproduced below, as well as sever-

al billings for treatment, were given to Petitioner. Coif-

man’s letter to Petitioner was as follows:

ROBERT £. COIFMAN, M.D 0 CHINE, Gin net

2545 Chicago Avenue, Suite 405

Minneapolis, Mn. 55404

Tel. (612) 674-5660, 671-9311

December 14, 1978

Ellis Olkon, Attorney at Law

2226 IDS Bldg.

Minneapolis, MN 55402

RE: Eugene Bowers

Date of Birth: 5 September, 1942

Our medical record #1039-00-07

Dear Mr. Olkon,

I am writing to summarize the history, clinical course, and residual

disability of this 35-year-old white male, reporting himself to have

been in generally good health and employed for 5 of the 6 years preceding

his injury in occupations involving heavy manual labor. On 16 June, 1978

he was driving a van with a high seat back (functioning as a head rest),

standing at a traffic signal when he was rear~ended by a full-sized car.

He experienced general shaking up with no immediate localizing symptoms,

though on examination approximately 12 hours later he already had localizing

back and neck sprain findings. It initially appeared that the patient

stabilized on an outpatient management program consisting of exercises,

relaxed swimming for limbering and strengthening, anti-inflammatory and

muscle relaxant drugs, and hypnotherapy for general and specific muscle

relaxation and for specific turning off of pain. Because of a deterior-

ating clinical course he was hospitalized in mid-August for a total of

9 days, during which time intensive physical therapy, rest, more regular

drug therapy, plus further instruction in self-hypnosis were successful

in reversing his clinical course and permitting a return to essentially

normal activities as long as he would avoid heavy labor and heavy lifting.

The patient's subsequent course has been characterized by continuing

general stability except for recurrence of symptoms with heavy lifting,

and to a somewhat lesser extent with cold weather. He takes no medica~

tions at the present time on a regular basis, though has experienced

numerous low grade flairs in his symptomatology. One would ordinarily

think that a fairly bright young man such as this would have little

difficulty moving into employment in an area not involving heavy manual

labor, but Mr. Bowers appears to have a character or behavior disorder

which makes it difficult for him to get along in close working situations,

and his employment, while more or less continuous prior to the accident,

has still involved frequent job changes and been most stable when he

has been working by himself. I do not feel his prognosis is good for

making an adjustment to employment in areas in which he has always had

a poor track record, without antecedent or concurrent major counseling

and psychiatric intervention of a type for which the patient experiences

no motivation to undertake, with the anticipated result that he will continue

to seek episodic employment in his previous work areas though with less

Ellis Olkon

RE: Eugene Bowers

Page Two

ability to continue to function in jobs involving labor because of his

back injury. We have discussed the improved self-esteem and economic

benefits which the patient could expect were he to become successful in

an area of employment using his brains rather than his back, but he has

thus far avoided seeing either DVR or the hospital based rehabilitation

psychology unit to which I attempted to refer him, most probably because

of apprehension about his ability to make it given what he already knows

about his own personality traits. I thus feel it appropriate to classify

Mr. Bowers as 20 = 25% disabled, because his injury prevents him from

returning to gainful employment on a regular basis in the manual labor

area in which he has been previously employed, while his own personality

structure would be a considerable liability to seeking employment in

alternative areas. The patient is not scheduled for further medical

services on a regular basis, though he is free to return for further

followup should he experience additional symptoms.

sincieiale ; 4

fet Cli flirer.

Robert E. Coifman, MZD.

REC/jlw

Note that in addition to describing Powers’s physical in-

juries, Coifman reports that Powers “appears to have a

character disorder” and is in need of “major counseling

and psychiatric intervention” for which he had been re-

ferred to, but refused to consult, rehabilitation and psy-

chology services.

The hospital reports and billings supporting Dr. Coif-

man’s diagnosis are found in the Appendix.

In addition to the report of Coifman, about whom Pe-

titioner had expressed some reservations, and the support-

ing medical records, Petitioner received the following re-

port from Dr. J. P. Engel:

CONSULTATION

Patient’é Name Bugene Bowers Address

Date 8-21-78 Hospital No. Room No.

Ateneo 1 HS °B irr OF HUC"A -severe-extent-and-this+s———

f-a—tright-sided-tower—back- pair

a symptoms that comes on as he shanges his position and when he gets up and

then stands up from the s*ttipg position he has the pain momentarily which causes

him to stop and then he is able to stand erect.

There has been a_ back ache in the past with increased physical activity and

no sharper pain of this nature.He had also a conplaint of some mild soreness

of his neck on the turning of his head and side bending to the left/

States that physical therapy is easing this symptom

Got the problem post having been the driver of his sar stopped in traffic and then

hit from rear and jarred causing about $700 damage to hhe van.

The first xray studies were done at M.M on an outpatient basis

The symptoms continue to thepresent time

The exam shows that his weight is at 186 pounds and the height is at 6

feet and he has a nonmral appearance and the only physical problem appears to

he the complaints of pain on the various movements done

The exam shows that he stood up in a natural manner from his seated position

on his bed.There was a backward tilting of his back at 15 degrees and this was

painful and he had a better right than the left side bending and the stretch of

his right side of his lower back interéered with the full side bending to his

left but the range was quite good .There was a foreward bending of 60 degrees

and he .°d some flattening of his lower back on thismovement but stated that

this did not hurt his lover back

fhe passive thigh bending went supine position to 45 degrees and

this was taken better on his left side.The straight leg raising range of 5 5

d pulled on his lower back the right side and left side test was at 65

degrees .The reflexes were active

Had spasm of his lower backrore on his right side and more tenderness over

his right lumbosacralregion -Thespasm was at grade two .

He had mild spasm of his left side upper spine involving the C5-6 region

Diagnosis is lumbar spine sprain with a mild right sided radiculitis

and a cervical spine sprain of a milder extent/

leeds most of all a training program in the body mechanics and the kind

of exercise to do for control of the stability of his lower beck/

Will discuss with the physical therapydepartment and with him on the

subsequent visits/

J,.P.Engel M.D. 8- 21- 78

CWERS EVCENE -- R321-)

570025-3 8 15-78

CAR COLFMAN 9-25-42 35

472 48-49-07

768-011 (60-22065) 6/78 Metropolitan Medical Center CONSULTATION

NOLLVLINSNOD

Note that this report confirms a back and neck injury

consistent with Powers’s description, the accident report,

the hospital records and Coifman’s report. (This report

was not presented to the grand jury that indicted Petition-

er. See Section 8 of the opinion below, Appendix.)

Petitioner forwarded these reports to the insurance

companies, whose representatives (in collusion with the

police) then called Petitioner, and settlements were easily

arranged since Powers had been urging Petitioner to make

a quick settlement. In the conversations leading up to the

settlement there were a number of remarks by Powers

and Petitioner about the genuineness of Power's injuries;

throughout, Powers made ambiguous and inconsistent

claims that he was and was not injured, that he had

“fooled” all the doctors, that the case was and was not

“phony.” Petitioner, for his part, expressed skepticism

about Coifman, recommended patience rather than

prompt settlement so that permanency of the injuries

could be determined, said he would withdraw from the

case if it were phony, and told Powers the insurance com-

panies would do their own investigation. There was discus-

sion about whether the claim was legitimate and what

would happen if it were not. Since the conversations are

contained in the Minnesota Court’s Opinion, and space is

limited, we do not reproduce them here. But we empha-

size certain important facts not in the conversations: at

no time did Powers say that he was not actually in a se-

rious accident (and the police report and repair bill

proved that he was), and at no time did he reveal his ac-

tual pre-existing back injury. Powers admitted that he

made his statements to Petitioner intentionally ambigu-

ous.

a a

This prosecution was based upon Petitioner’s submis-

sion of the insurance claims, on the theory that because

Powers had inade remarks to the effect he was not in-

jured the claims were knowingly false, despite Powers’s

and Saunders’s statements to the contrary, and despite

the accident and medical reports showing extensive prop-

erty damage, personal injury and mental instability.

In the Court below Petitioner asserted pre-trial the de-

fense that he was entrapped in violation of the Fifth

Amendment; under Minnesota law this issue was sub-

mitted to and decided before selection of the jury by the

trial judge who found that “the defendant was not en-

trapped.” (See Order, August 16, 1979, Appendix.) State

v. Grilli, 304 Minn. 80, 230 NW2d 445 (1975) estab-

lishes the Minnesota procedure. The question was then

raised on appeal and rejected by the majority of six, with

Justices Yetka and Wahl dissenting at length. (Appendix.)

Among the other issues raised in the Minnesota courts,

which have a bearing upon the context of the entrapment

and due process claims were: 1) the prosecution did not

present exculpatory evidence to the grand jury, specifi-

cally the report from the disinterested Dr. Engel; 2) ex-

tensive evidence of misconduct by Coifman and Neff, not

related to petitioner, was presented to the grand jury; and

3) despite evidence from several sources that anti-semitic

remarks and other prejudicial conduct were made by trial

jurors, at a post-trial hearing the trial judge questioned

only six of the jurors about this, and restricted inquiry

into the misconduct over defense objection. (See Sections

8 and 11 of the Minnesota Court’s opinion, Appendix.)

ARGUMENT

This Case Presents Important Questions of Federal

Law Which Have Not Been, But Should Be, Settled

by This Court: The Constitutional Implications of

and Restraints on Prosecution for Police-Created,

Police-Controlled Non-Contraband Offenses

Where the Idea is Implanted By The Police in a

Person Not Suspected of Wrongdoing Who is En-

ticed Into the Alleged Offense By Elaborate De-

ception Including Falsified and Genuine Official

Documents and Information Persuasively Show-

ing the Conduct Solicited is Not Illegal.

This case has two very important factors not found in

this Court’s previous decisions involving the defenses of

entrapment and denial of due process by police overin-

volvement. First: it is a non-contraband offense. Second:

the police deceptions were calculated to convince the de-

fendant the conduct in question was not unlawful.

In its most recent pertinent decision this Court noted

that it has not “had occasion yet to confront” the im-

mensely consequential issues vividly drawn in this case:

The Constitutional implications and judicial control of

“Government overinvolvement in areas outside the realm

of contraband offenses.” Hampton vy. U.S., 425 U.S. 484,

493 (1976), Justice Powell concurring. It is important

both to law enforcement and criminal defendants that

the Court undertake the inquiry now, at a time of increas-

ingly active “creative” police practices involving agents

posing as would-be solicitors of bribes and spawners of

frauds, often equipped (as in the present case) with sophis-

ticated electronic devices and falsified official documenta-

tion.

Although we believe the present conviction is Constitu-

tionally invalid under the established “subjective” criteria

of “entrapment,” where “the Government’s deception ac-

tually implants the criminal design,” as the police indis-

putably did here, Hampton v. U.S., 425 U.S. at 489, quot-

ing U.S. v. Russell, 411 U.S. 423, 436 (1973), this record

permits us to broaden the inquiry to include application

of the Due Process clause to the degree of police involve-

ment in non-contraband offenses, where a congeries of

government and private agencies and persons collaborate

to provide the defendant with extensive falsified and au-

thentic evidence, documentary and oral, tending forcefully

to assure the defendant that the acts he was induced to

undertake were not improper. For this is not a case, like

those in the leading quartet of Hampton v. U.S., supra,

U.S, v. Russell, supra, Sorrells y. U.S., 287 U.S. 435

(1932), and Sherman v. U.S., 356 U.S. 369 (1958), where

the nature of the contraband involved excluded any

doubt about the defendant’s knowledge of the illegality of

the transaction and no representations of legality were

made by the police; here the police affirmatively per-

suaded the defendant that the agent provacateur was not

acting fraudulently, despite his ambiguous suggestions

to the contrary.

Whether we speak of “entrapment” or “Due Process,”

it can hardly be gainsaid that we are here in a different

realm of jurisprudence (from the contraband cases) when

these factors come into play:

1. The defendant is not previously suspected of

wrongdoing. but of good reputation for honesty and pub-

lic service, as attested by numerous character witnesses

from the bench, bar, and clergy, targeted by chance,’ and

involved solely by the police-agent’s solicitation.

2. The defendant is a lawyer, bound to act zealously

in the best interests of his clients.

3. The counterfeit client tells the defendant and his

staff that his back was injured; he later makes deliber-

ately ambiguous statements to the contrary, but never de-

nies that the accident actually took place.

4. The existence of the injury is confirmed by:

A. The client’s physical appearance, including a

conspicuous neck brace and an awkward

walk.

B. The client’s companion’s assertions that she,

too, was injured.

C. The official police report showing a serious

accident, and the agent’s statement that the

police inquired if they should call an ambu-

lance.

D. The medical report of Dr. Coifman, showing

physical injury and mental problems.

E. The actual lengthy hospitalization of the

agent, during which he was treated for the

injuries.

F. The report of Dr. Engel, an independent and

disinterested doctor not part of the police col-

lusion, confirming the injuries.

G. The fact the agent actually had a pre-existing

back injury, but concealed it.

H. The repair bill for the vehicle.

I. The hospital bills and reports.

5The agent had first been given another lawyer's name, but did not pur-

sue that because the agent thought that lawyer would rcognize him.

See we (1) of the Minnesota Supreme Court's opinion in the

appendix.

5. The client’s competence and ability to say he was

not injured are undercut by the doctor’s report of a men-

tal disorder requiring psychiatric intervention.

6. The legitimacy of Dr. Coifman is confirmed to the

defendant by the police-sponsored deceptions of the Med-

ical Society, which stated Dr. Coifman was in good stand-

ing.

7. The insurance companies assist in the deception,

rather than acting as vigorous adversaries as the defen-

dant would expect, by:

A. Providing false insurance policies.

B. Accepting claims without investigation, resis-

tance and with only minimal negotiation.

8. The agent is provided false official identification

documents.

9. The agent urges the defendant to resolve the claim

quickly.

10. It is impossible that any crime could have been

consummated, the scheme being entirely police-created

and police-controlled.

Thus answers to the two traditionaj “entrapment”

questions dictate a result in the defendant’s favor:

1. Was the idea implanted by the police? Yes.

2. Was the defendant proved to be predisposed to do

the crime? No. And the more difficult and comprehensive

questions under the Due Process doctrine yield similar an-

swers:

May the police create a non-contraband “crime” from

whole cloth, entice an unsuspected citizen into it, raise the

citizen’s scruples by ambiguous suggestions of improprie-

ty, overcome those scruples by elaborate, extensive and

convincing false and genuine evidence, and then prose-

cute that citizen for accepting the police deceptions at

face value?

Where , in traditional “entrapment” cases, the police

provide narcotics, or buy stolen property, or offer a bribe,

the suspect knows unequivocally his solicited acts will be

unlawful; even so the law protects him if the police im-

plant the criminal idea. Should that salutary protection

be denied one to whom the police go much farther and

provide substantial evidence to convince the suspect that

no illegality is involved? And: Will this practice of using

dissembling clients encourage lawyers to fulfil their duties

to make zealous counsel available to all litigants (as op-

posed to a self-protecting and even cowardly refusal to

represent confused, difficult and unpopular clients)?

Dissenting Justices Yetka and Wahl‘ would have held

petitioner was entrapped as a matter of law, for reasons

we find inescapably persuasive:

The police had no information nor any suspicion

that Olkon was involved in any fraud schemes. . . .

--«- Thus, the police had no rational justification for set-

ting a trap for Olkon.

Olkon received both a police report indicating that

an automobile accident had occurred and medical

reports indicating that Powers was injured. Some of

the medical reports were from Dr. Coifman. How-

ever, Olkon also received a report verifying the in-

jury from Dr. Engel, a physician totally independent

of Dr. Coifman and beyond any suspicion.

‘Coincidentally Judge Douglas Amdahl, who presided at petitioner's

trial and ruled against petitioner on the entrapment issue, had been

ripe to the Minnesota Supreme Court but did not participate in

this ion.

Of course, Powers told Olkon he had fooled the

doctors. Olkon had good reason to disbelieve this

assertion due to the medical reports themselves,

Powers’ highly unusual behavior, and a medical re-

port indicating that Powers had a character or per-

sonality disorder. It is also relevant here that Powers

never denied that the accident had occurred. Olkon

believed Powers was a “macho” type trying to down-

play his injuries,

Moreover, Powers had not really fooled the doc-

tors at all. Powers had previously suffered a real

back injury. He disclosed this fact neither to his doc-

tors nor Olkon. Thus, in reality, Powers had not

fooled the doctors; the doctors’ reports were correct

and Olkon was justified in relying on them. .. .

... As the majority notes, the key issue is whether

the prosecution proved beyond a reasonable doubt

that Olkon knew the insurance claim was false. First,

however, it must be decided whether the claim was

totally false. The insurance claim made essentially

two assertions: (a) that Powers had a back injury;

and (b) that the injury was caused by the accident

in question. As noted previously, assertion (a) was

true because Powers did in fact have a back injury

which was properly diagnosed by the doctors. Asser-

tion (b) was false because the back injury was pre-

existing. However, Powers never disclosed this to Ol-

kon or to the doctors. Thus, there is no way Ol-

kon can be charged with knowledge of the falsity of

assertion (b) so the intent element is simply nonex-

istent.

Even disregarding the pre-existing back injury,

Olkon cannot be charged with intent to file a false

claim . . . Olkon was justified in relying on the two

independent medical reports, Although Powers tried

to downplay his injuries, Olkon knew Powers had

psychological problems and felt that he was trying

to prove his toughness. Olkon was never given rea-

son to doubt that the accident had occurred. Thus,

even if the actual existence of the back injury is ig-

nored, Olkon was justified in believing the claim to

be proper.

. . . Unless a lawyer knows that the client’s factual

statements are false, his duty is to advocate the cli-

ent’s position zealously. The attorney is not required

to make an independent investigation of his client’s

veracity in an effort to impeach him; that is the duty

of the other parties in an adversary system. The in-

surance companies could have investigated the case

and had further medical examinations taken. Un-

fortunately, the protections of the adversary system

were wholly lacking since the insurance companies

were in collusion with the police. The insurers never

questioned the early medical reports and never indi-

cated any doubt as to the claim.

I do not believe that the defendant would ever

have been prosecuted were he not a lawyer. The evi-

dence of guilt is simply too flimsy and ambiguous.

I believe the prosecution felt compelled to prosecute

him out of fear of possible public censure that it was

deliberately being easy on a member of the legal

profession.

I also believe we should now overrule GriMi and

adopt the objective test. The objective test, as for-

mulated in the American Law Institute, Model Penal

Code § 2.13(1) (Proposed Official Draft 1962), pro-

vides:

A public law enforcement official or a person

acting in cooperation with such an official perpe-

trates an entrapment if for the purpose of obtain-

ing evidence of the commission of an offense, he

induces or encourages another person to engage

in conduct constituting such offense by * * *:

xe * *

(b) employing methods of persuasion or in-

ducement which create a substantial risk that

such an offense will be committed by persons

other than those who are ready to commit it.

This test deals squarely with the problem of this

case: the fact that many attorneys, not out to com-

mit fraud but to serve their clients diligently, would

file a claim if presented with the tactics used and

facts of this case. If that is so, then the police have

not proven that Olkon is more guilty than other inno-

cent persons, This court should not stand by and

allow police to use tactics which do not separate the

guilty from the innocent.

I propose that we now adopt this test. Since the

tactics used by the police under the facts of this case

created a substantial risk that innocent

would have been trapped, I would hold that the de-

fendant has made out the defense in this case.

One of the vices of entrapment is that the police

must themselves break the law to catch . supposed

criminals. The illegalities in this case include issuing

a false driver’s license, issuing a false welfare card,

writing a phony accident report, issuing a phony re-

ceipt for a copy of the report, and writing a false

auto repair bill. We know from United States v. Nix-

on, 418 U.S. 683 (1974), that even the President of

the United States is not above the law. Where is the

authority in the Constitutions of the United States or

the State of Minnesota or by statute which permits

the police in this state to break the law in order to

enforce the law? There is the ancient common law

rule of fresh pursuit of a lawbreaker, but that is in-

applicable to this case. We are not a police state yet.

Entrapment is not even a necessary technique as

to this kind of crime. Doctors, lawyers and insurance

companies all keep thorough records on cases. If the

police had reason to suspect Coifman or Olkon, they

could have used their investigatory skills and powers

to find and solve any crimes which had been com-

mitted rather than creating new crimes and commit-

ting crimes themselves in the process.

The Illinois Supreme Court in Horwitz’ stated:

For the lawyer in active practice real tempta-

tions are plentiful and sufficient without their ar-

tificial multiplication by private parties whose real

motives can with certainty be known only to them-

selves. The lawyer must deal with exaggerations,

fraud, and actual perjury day after day, and oc-

casionally these things come from his own clients

without his knowledge or consent. His path is haz-

ardous at best, and if he can so far avoid its nat-

ural pitfalls as to maintain and be able to prove

a good reputation, it should be sufficient to pro-

tect him against plots and schemes.

We, of course, agree with this analysis. For purposes

of this petition, however, and the Court’s decision wheth-

er to review the matter, it is sufficient that answers and

guidance are urgently needed, and it is unlikely that an-

other record raising the questions so dramatically will

soon come to the Court’s attention.

The Minnesota Supreme Court’s Rationale is in Con-

flict with Constitutional Decisions of this Court and

Other Courts.

It can scarcely be doubted that the Minnesota court’s

opinion so drastically emasculates the entrapment and

5In re Horwitz, 360 Il. 313, 196 NE2d 208, at 214 (1935).

due process defenses as to destroy them altogether, and

makes citizens fair game for conviction of police-created

and non-existent offenses. In its earlier and leading case,

State v. Grilli, 304 Minn. 80, 230 NW2d 445 (1975),

the court had adopted the “subjective” test, focusing on

the defendant’s predisposition: “whether it was his origi-

nal intent to commit the crime charged.” 304 Minn. at 89,

230 NW2d at 452. The factors to consider in answering

this inquiry were said to be

(a) defendant’s active solicitation to commit the

crime, (b) prior criminal convictions, or (c) prior

criminal activity not resulting in conviction. . . ., or

(d) defendant’s criminal reputation. 304 Minn. at

89, 230 NW2d at 452.

None of these factors was present in this case; rather the

court looked to a catch-all dictum in the Grilli decision to

the effect that if “by any other adequate means the chal-

lenged conduct of the state’s officers is mitigated or ex-

cused,” Ibid, entrapment is not proved.

First, we note that this catch-all, by focusing on justifi-

cation of the police conduct, confusingly shifts from the

“subjective” to the “objective” approach to entrapment,

contrary to the court’s expressed adoption of the former.

Then, in affirming the conviction under this vague “ob-

jective” standard, the court even more confusingly applies

it to the “subjective” question: “whether the defendant’s

predisposition was shown by other adequate means,” State

v. Olkon, appendix, (emphasis in original), and found

that it was.

The dissenters disagreed, saying:

. . . There is no evidence whatsoever that Olkon

was predisposed to commit this crime. The Grilli

case stated four specific ways of proving predisposi-

tion, but not one of them is true here... (Appen-

dix.)

In Grilli, we quoted with approval the following

from Newman y. United States, 299 F. 128, 131 (4th

Cir. 1924):

When the criminal design originates, not with the

accused, but is conceived in the mind of the gov-

ernment officers, and the accused is by persua-

sion, deceitful representation, or inducement lured

into the commission of a criminal act, the govern-

ment is estopped by sound public policy from

prosecution therefor.

Since the criminal design here originated with the

police and Olkon was lured by numerous deceitful

acts into filing the insurance claim, he has a valid

entrapment defense even under the subjective test.

In a case with strikingly similar facts, the Illinois

Supreme Court held that the attorney had been en-

trapped under the “subjective” test. In re Horwitz,

360 Ill. 313, 196 N.E. 208 (1935). In that case, as

here, the detective had created a fictitious accident

but never told the attorney it had not occurred. The

detective also had a pre-existing back injury but

never disclosed it. The medical reports verified the

injury but the detective, when concealed witnesses

were listening, made statements such as “You know

I am not injured.” The Illinois court concluded:

If this entire record is interpreted most strongly

against the respondent, it falls short of sufficient

ground for disbarment. He was entrapped by a

set of false and carefully arranged circumstances

and evidence sufficiently valid, and apparently

real, to deceive an experienced practitioner.

360 Il. 313, 196 N.E. at 213. Although that case

was a disciplinary case, it is even less proper to

convict such an attorney of a crime because of the

higher standard of proof and the necessity of prov-

ing intent....

The objective test is supported by many of the

United States Supreme Court justices in their various

concurring and dissenting opinions. The states are

clearly free to adopt a stricter test than the federal

rule, and many states have done so. In addition to

the five state courts which had adopted the objec-

tive test noted in Grilli, another eleven states have

now adopted the objective test by statute. The ob-

jective test is also supported by the overwhelming

majority of scholarly writing on the subject. [Foot-

notes omitted. }

The majority opinion below is irreconcilable with this

Court’s decisions, despite the Minnesota court’s lip-service

to them. Summary reversal for entry of judgment of ac-

quittal under those cases would be an appropriate disposi-

tion. The dissent not only states the present case correctly

and indicates the proper result, but (the important point

for purposes of this petition) underscores the conflict and

confusion in this surpassingly important area and the

need for guidance from this Court. Indeed it is fair to

suggest that there is perhaps no comparably important

aspect of the criminal and constitutional law in which

uncertainty, disagreement and potential for injustice are

sO great.°

8See, for collections of decisions demonstrating the diversity of ap-

proaches in non-contraband entrapment and due process cases, c.g.:

Anno., Larceny: Entrapment or Consent, 10 A.L.R.3d 1121; Anno.,

Defense of Entrapment in Contempt Proceedings, 41 A.L.R.3d 418;

Anno., Instructing on Burden of Proof as to Defense of Entrapment

in Federal Criminal Case, 28 A.L.R.F2d 767; Anno., Propriety and

Prejudicial Effect in Federal Criminal Case of Instruction Distinguish-

ing “Lawful” and “Unlawful” Entrapment, 39 A.L.R.F2d 75 1; Anno.,

Entrapment to Commit Offense Against Obscenity Laws, 77 A.L.R.

2d 792; Anno., Entrapment with Respect to Violation of Fish and

Game Laws, 75 A.L.R.2d 709; Anno., Entrapment to Commit Brib-

Another illustrative non-contraband case paralleling

the present one, (though decided on other grounds), and

inspiring in Judge Friendly sentiments toward govern-

ment creativity which we respectfully believe should in

part guide this Court’s approach to the issue, is United

States v. Archer, 486 F.2d 670 (2nd Cir. 1973). To com-

bat corruption in the Queens, New York, criminal justice

system, state and federal officials had a disguised agent

pose as an illegal possessor of firearms who was duly ar-

rested and asked a lawyer and bondsman (both previous-

ly unsuspected, like this petitioner) to prevent an indict-

met. As here, the agent was provided false identifica-

tion’ and false police reports were generated.* The pri-

vate lawyer contacted an assistant district attorney (Arch-

er), who advised him to fabricate an explanation for pos-

session of the firearms; this was done, with Archer pre-

senting the case, lying to the grand jury, and as a result

a no-bill was returned. The principals were indicted for

violation of the Travel Act.° The Second Circuit court

reversed the conviction on the narrow ground that the ba-

sis for a federal offense cannot be created by interstate

ery or Offer to Bribe, 69 A.L.R.2d 1397; Anno., Entrapment to

Commit Ojjense Against Laws Regulating Sales of Liquor, 55 A.L.R.

2d 1322; Anno., Entrapment to Commit or Attempt Abortion, 53

A.L.R.2d 1156; Anno., Entrapment to Commit Sexual Offense, 52

A.L.R.2d 1198; Anno., Entrapment to Commit Crime with Respect to

Gambling or Lotteries, 31 A.L.R.2d 1212; Annos., Entrapment to

Commit Crime with View to Prosecution Therefor, 18 A.L.R. 146,

66 A.L.R. 478, 86 A.L.R. 263.

"Including, as here, a driver’s license; he was also given a false immi-

gration card and—parallel to the collusion of the Medical Society in

the present case—the Immigration and Naturalization service a

} provide false information from its office as well. 486 F2d at 672-

73.

®8In Archer the arresting police were not part of the scheme, so although

the arrest was false the police reports themselves were not wholly fab-

ricated as here.

918 U.S.C. § 1952. prohibiting interstate and foreign travel or trans-

portation in aid of racketeering enterprises.

telephone calls deliberately generated by law enforcement

officials for that purpose.”® 486 F2d at 681-683.

Judge Friendly’s analysis begins, however, with an in-

cisive critique of the government’s ignoble role in manu-

facturing the crime itself, a role necessarily based on a

belief that the end justifies the means:

Prosecutors and their agents naturally tend to as-

sign great weight to the societal interest in appre-

hending and convicting criminals; the danger is that

they will assign too little to the rights of citizens

to be free from government-induced criminality. 486

F2d at 677."

As a recent commentator has observed, this Court has

not established a clear majority position on the subjective-

Objective dichotomy, even in contraband entrapment

cases.” Though Archer, supra, was decided before

Hampton, supra, the latter was a plurality decision so far

as pertinent and, unlike Archer, Hampton was a contra-

The Court also condemned federal intervention into what, but for

that intervention, would be a purely state or local matter, an issue not

involved in the present case.

NEariler Judge Friendly quoted Mr. Justice Brandeis’s famous dissent

in Olmstead v. U.S., 277 U.S. 438, 485 (1928), which says in part:

To declare that in the administration of the criminal law the end

justifies the means—to declare that the government may. commit

crimes in order to secure the conviction of a private criminal—

would bring terrible retribution. Against that pernicious doctrine

this court should resolutely set its face. 486 F2d at 675.

22R, Scott Long, Entrapment - A Due Process Defense - What Process is

Due? p. 11, Southwestern University Law Rev. 663 (1979). There are

a number of other helpful recent commentaries on the subject, e.g.:

Tanford, Entrapments Guidelines for Counsel and the Courts, 13

Crim.L.Bull. 5 (1977); Note, Rejection of the Conduit Theory of En-

trapment, Hampton vy. United States, 425 U.S. 484 (1976), 8 Tol.L.

Rev. 473 (1977); Note, Criminal Procedure - The Entrapment De.

fense - A Reexamination, 25 Mercer L.Rev. 957 (1974): Comment,

Elevation of Entrapment to a Constitutional Defense, 7 U.Mich.J.L.

Rev. 361 (1974). DeFeo. Entrapment as a Defense to Criminal Re-

sponsibility: Its History, Theory and Application. 1 U.S.F.L.Rev. 243

- (1967). Park, The Entrapment. Controversy, 60 Minn.L.Rev. 163

(1976). Comment, Entrapment: A Critical Discussion, 37 Mo.1..Rev.

633 (1972); Donnelly, Judicial Control of Informants, Spies, Stool

Pigeons and Agent Provocateurs, 60 Yale L.J. 1091 (1951),

band case. Indeed Mr. Justice Powell’s concurrence in

Hampton cites Archer as an example of the type of non-

contraband situation this Court has not addressed. 425

USS. at 493.

The great confusion, inconsistency and disparity in the

handling of the issues both in federal and state courts,

is, of course, one of the most important reasons for this

Court’s exercise of its certiorari jurisdiction. Rule 17 (1)

(a), Rules, United States Supreme Court.

Another troubling and unusual aspect of this case is

that the defendant is a lawyer, solicited into the police

scheme for that very reason. While it may be true that

lawyers as such should have no particular protection from

creative law-enforcement, and may even be held to high-

er standards than laymen for certain purposes, it is im-

portant to remember that lawyers often (and certainly in

personal injury litigation such as is involved here) oper-

ate in and as part of an adversary system, owing undi-

vided loyalty to each client’s interests, leaving it to the

adverse party and adverse counse] to expose and exploit

defects in the plaintiffs case. Whether or not a party

was actually injured and the source and extent of in-

juries are questions ideally and routinely resolved in the

adversary system, and it is not the task (not even the

right) of a claimant’s lawyer to defeat the claim, even

upon the claimant’s statements. at least when as here sub-

stantial believable evidence supports the claim. As Justice

Yetka’s dissent correctly noted, even after the counter-

feit client’s disclaimers to petitioner there remained sub-

stantial reliable evidence of an actual accident and injury

(there was an actual, earlier injury) and the claimant’s

Suggestions to the contrary were vitiated by the evi-

dence of his mental instability. For petitioner to pursue the

claim here was very little if any different from a lawyer

vigorously defending and seeking acquittal of a criminal

defendant who has admitted guilt; at least the Minnesota

court’s rationale would not need much stretching to en-

compass that situation. If ethical questions arise in such

cases they should be treated as ethical questions, not

made the basis of criminal prosecution, lest the essential

duty of zealous advocacy be chilled and defeated.

We note incidentally that from a lawyer’s point of view

in these circumstances an absolute refusal to deal with a

client who suggests he may be attempting a fraud could

be expected not to defeat that attempt but merely to

educate the client to go to other counsel and not suggest

his duplicity, which would supposedly increase the chance

of the fraud succeeding. While this would not provide a

defense as such, it remains obvious that had the insur-

ance companies or the Medical Society done their jobs in

these circumstances, and exposed the questionable nature

of the claim rather than confirming its legitimacy, the

defendant lawyer would have been in a position to abort

the scheme without enabling the client to begin it anew

elsewhere, and it is clear from this record that this defen-

dant would undoubtedly have done so. A lawyer can no

more be required to reject out of hand a client’s unsup-

ported claim he is not injured, in the face of convincing

evidence to the contrary, than a lawyer could be required

to believe a criminal defendant’s claim of guilt or inno-

cence, in the face of evidence and law to the contrary.

Therefore the fact that petitioner is a lawyer does not

militate against him, as the Minnesota majority suggests,

but in itself goes far toward justifying, even arguably re-

quiring, his conduct.

CONCLUSION

The present case is a uniquely appropriate one to bring

before this Court the supremely important unanswered

questions involved in applying the doctrines of entrap-

ment and due process to non-contraband crimes which

are created by the government and implanted in the de-

fendant’s mind. In addition the present case has the es-

pecially troublesome element of the government’s use of

false and authentic documents and information tending to

show that the acts solicited were not illegal at all, thus

most unfairly lulling the defendant into a belief of its

legitimacy and disarming his scruples or reservations.

Condemnation of police creativity on this scale will

have no adverse effect on legitimate law-enforcement in-

vestigative. techniques against crimes difficult of detec-

tion; contraband investigations would not be affected at

all, nor would non-contraband investigations where a sus-

pected and predisposed wrongdoer is merely provided an

opportunity to carry out a crime of his own design. In-

filtration of organized crime, apprehension of white-collar

offenders by disguised agents, and such techniques as the

so-called “sting” method of ensnaring property offenders

would remain perfectly viable; indeed law enforcement

resources, always too limited, would be much more wisely

allocated to such undertakings than to the creation of

fictional schemes for the enlistment of otherwise unexcep-

tionable citizens.

A writ of certiorari should issue to allow this Court to

address these important and undecided issues, and to re-

solve the conflicts between courts, as well as to correct

the injustice of this conviction.

Respectfully submitted,

Jack Nordby

430 Oak Grove Street

Suite 205

Minneapolis, MN 55403

(612) 874-6426

Counsel of Record for Petitioner

A-1

APPENDIX

No. 315 Hennepin County

Todd, J. Dissenting, Yetka, J., Wahl, J. Took no part,

Amdahl, J.

STATE OF MINNESOTA,

Respondent,

50966 vs.

ELLIS OLKON

Appellant.

Endorsed

Filed August 29, 1980

John McCarthy, Clerk

Minnesota Supreme Court

SYLLABUS

1. Defendant’s argument that the prosecution engaged

in misconduct which denied defendant a fair trial is rejected.

2. The trial court did not err in admitting into evi-

dence the tape recordings of communications between

defendant and an undercover police officer which were

obtained without a warrant but which were consented to

by the police officer.

3. The trial court did not abuse its discretion by per-

mitting the jury, while listening to the recorded conversa-

tions between defendant and the undercover police officer,

to refer to transcripts of those recordings.

4. There was no inconsistency in the jury verdict for

which a new trial is required.

A-2

5. Defendant was properly indicted on two counts of

attempted theft and two counts of conspiracy.

6. The trial court adequately instructed the jury on

the issue of reasonable doubt.

7. The trial court did not err in accepting a partial

jury verdict.

8. No prosecutorial misconduct occurred during the

grand jury proceedings which required a dismissal of the

indictment against defendant.

9. There was sufficient evidence for the jury to find

beyond a reasonable doubt that defendant committed the

crimes of attempted theft by swindle.

10. The trial court did not err in dismissing the

defense of entrapment.

11. The trial court did not abuse its discretion in

determining to call only six jurors to testify at the

“Schwartz” hearing or in limiting the scope of inquiry at

those proceedings.

Affirmed.

Heard, considered, and decided by the court en banc.

OPINION

TODD, Justice.

Defendant, Ellis Olkon, was charged with two counts

of conspiracy to commit theft by swindle over $2,500 and

two counts of attempted theft by swindle over $2,500.

These charges were brought after defendant Olkon col-

lected monies from two insurance companies for the pur-

ported automobile accident injuries of a client even though

he.was apprised that the client was not in fact injured.

—

A-3

The client, who unbeknown to defendant was an under-

cover police officer, had requested that defendant act as

his attorney in presenting the false claims to the insurance

companies, Prior to trial, defendant moved to dismiss the

indictment on the ground that prosecutorial misconduct

had occurred during the grand jury proceedings and on

the ground that the indictment was multiplicious. These

motions were denied. Defendant waived a jury trial on

the defense of entrapment. Therefore, the defense was

tried before the court at the omnibus hearing. The trial

court determined that defendant was not entrapped into

the commission of any offense. After a jury trial, the jury

returned a verdict of guilty on the two counts of attempted

theft by swindle but was unable to reach a verdict on the

two counts of conspiracy. Subsequent to trial, a Schwartz

hearing was held because there had been allegations of

juror misconduct. Defendant moved for a new trial and,

in the alternative, for a judgment of acquittal. These mo-

tions were denied and judgment was entered against defen-

dant. We affirm.

In early 1978, Walter Powers, a Hennepin County police

officer who worked often on undercover narcotics investi-

gations, was requested by Hennepin County Detective

John Meath to take part in an undercover investigation of

medical fraud activities. As a part of this plan, Deputy

Powers established a doctor-patient relationships with Dr.

Robert Coifman, a medical fraud suspect, by consulting

with Dr. Coifman on three occasions for Powers’ purported

allergy problems. Deputy Powers identified himself to Dr.

Coifman as “Eugene Bowers”, the cover name which

Powers was to use throughout the investigation. During

A-4

some of these visits, Powers-Bowers was accompanied by

Deputy Sheriff Pamela Lavarre, who used the cover name

of “Elizabeth Saunders” and who posed as the girl friend

of Bowers.

On June 16, 1978, Powers-Bowers and Lavarre-Saunders

went to Dr. Coifman’s office and told Coifman that they

had been in a car accident the night before. Powers-Bowers

complained of lower back pain but did not receive any

treatment during that visit or during his next visit to Dr.

Coifman, Dr. Coifman and his business manager, Nathan

Neff, discussed the possibility of therapy and the wearing

of a neck brace with Powers-Bowers. On June 20, Powers-

Bowers and Lavarre-Saunders returned to Dr. Coifman’s

office and only saw Neff, who referred them to defendant

Olkon, a Minneapolis lawyer, for legal assistance.’ The

police department had not intended to investigate Olkon

until Neff made this reference.

Prior to the June 16 visit with Dr. Coifman, Powers-

Bowers was issued a driver's license and a Hennepin County

welfare care in his fictitious name. With the cooperation

of the Edina Police Department, a fictitious police accident

report was prepared on a standard Department of Public

Safety form. The report indicated that Bowers and Saun-

ders, while driving in a 1977 Ford van, were rear ended by

one Joseph Barnes at 1:10 a.m. on June 16, 1978, and

that property damage of $700 and physical injuries resulted

from the accident. Powers-Bowers was also listed, in his

fictitious name, as the owner of the van involved in the

1Neff had first given Powers-Bowers and Lavarre-Saunders the name of a

different attorney but Powers-Bowers did not go to see that attorney

because he thought that the attorney might recognize him as a police

officer. Therefore, he asked Neff for the name of another attorney and

was referred to defendant.

A-5

accident and was given a falsified repair bill for the van

in the amount of $313.60. State Farm Mutual Insurance

Company, at the request of the Hennepin County Sheriff's

Department, provided Bowers with insurance coverage

which included personal injury protection. The Travelers

Insurance Company, the insurer of Joseph Barnes, and

State Farm were fully informed of the fictitious nature of

the accident and of the investigation plan. The insurance

companies were requested to settle without contest any

claims made against them on behalf of Bowers. The Henne-

pin County Sheriff’s Department also contacted the Henne-

pin County Medical Society and requested that they delay

the filing of charges against Dr. Coifman for about 30 days.

On June 22, 1978, Powers-Bowers called defendant's

Office to make an appointment with defendant. The con-

versation which ensued and subsequent calls to and inter- .

views in the Olkon office were tape recorded by Powers-

Bowers by means of a small transmitter and receiver.

Powers-Bowers spoke with Debra Juhl, defendant’s para-

legal secretary. He identified himself as Eugene Bowers

and told her that he had been referred to Olkon by Nathan

Neff, that he had been involved in a car accident, and

that he and Saunders had been injured and were in treat-

ment with Dr. Coifman. Juhl contacted Bowers later that

day and gave Bowers an appointment to see defendant the

following Monday. Powers-Bowers agreed to come unless

he was admitted into the hospital in the interim.

On the afternoon of Monday, June 26, 1978, Powers-

Bowers and Lavarre-Saunders went to defendant’s law

office. They were casually dressed and Powers-Bowers wore

a neck brace or “soft-collar.” They were met by Debra

A-6

Juhl who had them execute legal retainer agreements and

medical release forms. Powers-Bowers gave Juhl a copy

of the police accident report. Juhl testified at trial that

Powers-Bowers moved stiffly, appeared to be in pain, and

gave no indication that he was not an injured person.

Powers-Bowers and Lavarre-Saunders then went into

defendant’s office. They identified themselves to defendant

as Powers and Saunders, indicated that they were cohabit-

ing, and told defendant they were unemployed. They

described the accident to defendant and gave him insurance

information. Lavarre-Saunders indicated that she had pain

in her shoulders and lower neck and had headaches. Powers-

Bowers stated that he had lower back pain and would be

hospitalized. They also discussed their treatment with Dr.

Coifman and defendant expressed skepticism concerning

Dr. Coifman because his bills were high and because he

treated patient with hypnotherapy, a procedure not highly

recommended by the medical profession. At this meeting,

the following also transpired (“O” represents Olkon, “P”

represents Powers-Bowers) :

O: You don’t look sick. But with Coifman on, any-

body’s sick. Is something really wrong with you?

P: Ah, well, not really. But they decided that I should

ah—that I maybe I could get something out of it. So they

said I should come and see ya.

O: Well, I don’t want to know anything about that.

P: Then I won’t tell you anything about that!

* * * *

O: Ah, what I am concerned about is because under

no fault insurance, you need one of three things, in order

to qualify for a—for a personal injury lawsuit. I—you have

A-7

to lose at least 2 months from work, but that’s not gonna

be the case, as neither one of you were working at the time

of the accident. Or—2—if you have ah, up to $4,000

worth of medical bills, or hospital medication bills, which

if you see Coifman, won’t be a problem. I mean, I, I, I’ve

never met that guy, and I don’t want to meet him, but, ah, I

guess I don’t want to look a gift horse in the mouth. Cause

I'm unhappy with him, ya know. And the third thing is

to have a permanent injury and that you'll probably have,

cause Coifman finds permanent injury.

* o * *

O: You’re hurting, in pain, possibly hospitalized.

P: Don’t laugh.

After this meeting, defendant notified the Travelers

Insurance Company that an accident had taken place and

that a possible cause of action existed. Defendant also

informed State Farm of the accident and indicated that

State Farm should deal directly with their insured, Bowers.

Defendant forwarded to the insurance companies the acci-

dent report and repair bill.

In March and early July 1978, Debra Juhl called the

Hennepin County Medical Society and asked whether

there were any complaints against Dr. Coifman regarding

his overcharging for services. Juhl was informed that Dr.

Coifman was a member in good standing of the society.

On August 15, 1978, Powers-Bowers was admitted to

the Metropolitan Medical Center by Dr. Coifman. While

there, Powers-Bowers underwent treatment for lower back

pain. He was also examined by Dr. Joseph Engel, a con-

sulting physiatrist who had no relationship to Dr. Coifman.

As a result of thig examination, Dr. Engel concluded that

A-8

Bowers had a minor spine sprain and nerve root irritation.

His consultation report indicated his diagnosis:

Diagnosis is lumbar spine sprain with a mild right

sided radiculitis and a cervical spine block sprain

of a milder extent.

Dr. Engel also reported to State Farm that Bowers had

a mild lower back and neck condition but that it was too

early to indicate any permanency. Defendant received and

reviewed these reports and other reports from the medical

center which delineated Powers-Bowers’ treatment there.

Powers-Bowers’ next contact with defendant was on

September 1, 1978, when he visited defendant at his law

office. Powers-Bowers questioned defendant concerning

the possibility of an early settlement of the insurance claims

and defendant stated that it was to early for a medical

determination of permanency of any injuries. In addition,

the following discussion occurred:

P: ***]’m just wondering how long—if you have any

idea how long this has to go on. I’m getting kind of tired—

ah—playing with [Coifman].

O: Well, it’s only been two and a half months since

you were involved in a severe accident. You know a case

isn’t worth anything for sometimes up until two years.

* * * *

P: Yeah, but, since, since then, now I’ve been in the

hospital, and they—ah—thought that that’d be a good

way to get the bills built up so we’d have a good claim.

* * * *

O: Well, you still have neck and lower back problems?

P: Well, you know—I—

A-9

O: I get nervous when you do change your tone, I

can’t get involved in that.

* * * *

O: ***We can try to speed it up, but cases aren’t

really worth a hell of a lot until they’re*** have some age,

because medical experts will tell you, you can’t determine

a permanent injury after a few months because one of

these days they’re going to have their own doctors examine

you and they’re going to say there’s nothing wrong with

you.

P: Yeah, but I had—lI was in the hospital for 10 days

and fooled everybody in the hospital—so—

O: Well, that’s good, they’ll have good medical reports,

and good medical, ah ya know—but that’s not still showing

that you’re not going to completely heal and have nothing

wrong with you two years from now.

P: Yeah, but—

O: In order to get good money you have to be able to

convince the insurance company there’s a permanent

injury.

P: Oh, I, I’m a good actor, I can convince them of that.

O: You have to convince their doctor of that.

P: TI'll convince ’em.

P: Okay—ahh—how much—ah—trouble could I get

in, if the insurance company catches on to this thing?

O: I don’t know what trouble you can get in if there’s

nothing, you know—if—

P: Well—

O: Basically,—

P: The doctor says there’s something wrong with me,

and well—just—

A-10

O: Well, if there is something wrong with you—the

doctor says there’s something wrong with you, and you're

bringing this claim against the insurance company, ah—

you can’t get in any trouble. But if in fact, there isn’t

anything wrong with you, and—ah—I wouldn’t be han-

dling this case—I really wouldn’t cause that’s what I said

earlier, I, you know. What prior arrangements you have

with Dr. Coifman or Nathan Neff I don’t even want to

know about it. I know there are certain problems going on

down there, cause I’ve had a few—ah—of the files, I

haven’t—your the only case I’ve taken in the last four

months out of there. Maybe you’re the only patient they’ve

got left,—I don’t know, but—ah—

P: Well, may—

O: So let’s say—let’s put it this way—the only trouble

you can get in, is the same trouble Coifman can get in—

if this is a phony case, you’re both in trouble, you know.

But you’re in just as much trouble as he’s in. Ya know***

Ah ***

P: Well, who’s gonna tell ’em though? Who’s gonna

say that it’s a phony case, or if it isn’t?

There’s only one person—you.

Well—I ain’t going to say—nothin.

And Coifman’s not going to say anything.

No.

So then what’s the problem?

And you ain’t going to say nothin’—cause you can’t

say anything that I tell you, right?

O: It’s strictly confidential—just like your priest.

P: Okay, you don’t—you don’t know nothing about

that it’s a phony case then—cause

YONVOVS

A-11

O: No, but if I thought it was phony, I would with-

draw from the case, but wouldn’t give that as the reason,

I would say *** ethical conflict.

P: Well, ifi—I mean—I haven’t—I haven’t

P: Okay, I haven’t told you.

P: At this particular—

O: Ihave no reason to believe that it’s a phony.

P: Thaven’t, I *** Okay, I haven’t told you anything—

as far as that it’s not on the up-and-up, or anything as far

as you and I are concerned, or anybody else.

* * * *

O: *** Tm sure there’s be nothing in the reports—

ahhm—well, you know I haven’t had this type of problem

before in a domestic situation—some lady was here the

other day who is working and was getting some welfare,

but she had, ah her boyfriend was thrown out of the house.

O: *** What I’m really getting at here, and I don’t

know Elizabeth Saunders, I supposed she’s a possibility—

that you throw her out of the house, or—ah—you break

up and start seeing somebody else, and some emotional

problems develop—ah—and she’ll say—well, you leave

me Gene and I’m going to go to—ah to—the medical

association, and tell them that you have a phony case.

There’s a possibility—

P: Well, I don’t think so, but that I’m not really

worried about.

O: Okay—but other than you and Coifman, that

would be the only other possibility.

P: Well—she—she’s involved in it, I mean as far as

that goes, just as much as anybody else.

* * * *

A-12

O: You know then they'll do it, but you know, my—

you know—it’s just that from the medical treatment stand-

point just as long as I do nothing more than read medical

reports, and ask you how you feel, I’m you know—com-

fortable. It’s just that, ah.

P: Well, as far as you and I are concerned, I’ve got

back pain, and still a little bit of neck pain and whatever,

but—ah—I, I haven’t told you anything about anything

else.

* * * *

O: That’s right. Sure—I’d say that by March we

could be ready for that kind of settlement, without any

difficulty. You know—with 5,000 clear to you. That would

be—ah—you know—without any difficulty at all, because

ah—I haven’t seen what his recent medical bills ***

there’s no medical report, but I’ve got some imagination.

P: Well, I’m sure, I’m sure, that it’s high, cause he's

charged me for lots of calls.

O: Well, so—

P: Some of them I didn’t even make.

* * * *

P: It might—it might be kinda hard to—for the other

doctors to say that I got, or to agree with [Coifman] that—

or if he says that I’ve got a 5 or 10% disability—if I

ain’t hurt, so.

On November 14, 1978, and December 11, 1978,

Powers-Bowers called defendant on the telephone. He asked

when the case could be settled and was informed by defen-

dant that nothing could be done until defendant received

a medical report from Dr. Coifman.

A-13

On December 15, 1978, Powers-Bowers went to defen-

dant’s office and hand delivered a medical report from

Dr. Coifman to defendant. That medical report provided

in part:

Mr. Bowers appears to have a character or behavior

disorder which makes it difficult for him to get along

in close working situations, and his employment, while

more or less continuous prior to the accident, has

still involved frequent job changes and been most

stable when he has been working by himself. I do not

feel his prognosis is good for making an adjustment

to employment in areas in which he has always had

a poor track record, without antecedent or concurrent

major counseling and psychiatric intervention of a

type for which the patient experiences no motivation

to undertake, *** I thus feel it appropriate to classify

Mr. Bowers as 20-25% disabled, because his injury

prevents him from returning to gainful employment

on a regular basis in the manual labor area in which

he has been previously employed, while his own per-

sonality structure would be a considerable liability

to seeking employment in alternative areas. ***

The following conversation between Powers-Bowers and

defendant ensued:

P: Good. That’s what we’re waiting for—right there.

O: From Coifman?

P: Yeah. He had me read it to make sure it was right

before, he said too that if that’s not exactly what you want,

that he can redo it too.

* * * *

A-14

O: I don’t like the report, it’s the second time I’ve

told Coifman, you know that, you, say 20 to 25 percent

disabled, but they have to name the goddam part of the

body that’s disabled. Not disabled because this injury

prevents him from returning to gainful employment ***

* * * *

O: I mean, what he’s saying is that there’s nothing

wrong with you. That’s what he’s saying. Ah, I can try to

settle it with this, but it’s not worth the kind of money

that he could have—if he’s said 20 to 25 percent of the

back, the neck, legs, arms, ah—I don’t know what the

hell’s wrong with him. Ya know Neff tells me this is only

gonna help you—this doesn’t help you.

P: Yeah?

O: Back and neck sprain. Well,—ah—do you want to

have him do a new report? Fine. Or I can just send this

one out, and try to get something for it.

O: Nathan—you know the least they could do is

come up with a hell of a better report than this. The

thing is—:you know—he’s protecting his ass. It doesn’t

help if he doesn’t say you have a permanent injury, it just

says you have 20 to 25 percent disabled, because of the

classification of the type of work that you do, that you do

manual labor. That doesn’t impress State Farm. That

doesn’t make sense whether you’re working or not. He says

you have a 20 to 25 percent permanent partial injury of a

certain part of your body. That’s what would be most

beneficial.

P: Well, let’s see, why don’t we see what the insurance

companies will say. Will they make an offer, or will you

have to— |

A-15

O: No, they will give an offer, probably within a week.

P; Why don’t you do that, and see what they say—if

it’s unreasonable—then we'll have Coifman do his bill

Over again, or his report.

He can’t do his report over.

Well, he can specify as to what he feels is—

He’d have to do an amended report.

Yeah.

Okay, I'll take care of it that way, then.

Cause I'd just as soon get it over—if we can get

what we want—I’d just as soon not create any more ques-

tions about this than we have to.

O: Okay—

P: Cause I don’t know how well it could stand up

under real close—if you understand what I’m saying.

O: Probably not too well.

After this meeting, defendant sent all medical and hos-

pital reports and all medical bills to the Travelers and

State Farm insurance companies. On December 20, 1978,

defendant received calls from agents of State Farm and

Travelers who both indicated a willingness to settle Bower’s

claim. Defendant subsequently negotiated settlements with

the agents of State Farm and Travelers. During a discussion

with the agent of Travelers, defendant indicated that the

Coifman medical bills were too high and that he would

try to negotiate Coifman’s bill to a lower amount with

Coifman’s office. Defendant did later confer with Natgan

Neff and was able to get Coifman’s bill reduced from ap-

proximately $3,850 to $1,865.50. However, defendant

never informed the insurance companies of this reduction.

As a result of the negotiation between defendant and the

VOroORO

A-16

insurance agents, on December 20, 1978, defendant re-

ceived $7,315.60 from Travelers Insurance Company and

$4,897.60 from State Farm as full settlement for all of

Bowers’ claims.

On December 21, 1978, Powers-Bowers called defen-

dant and defendant informed him that he could come to

defendant’s office that afternoon to pick up his check.

Powers-Bowers met with defendant later that afternoon.

Defendant told him that Dr. Coifman would receive

$1,865 out of the settlement and Bowers would receive

$6,275. Defendant’s fee for the case was $3,037.87. De-

fendant expressed concern that the Hennepin County

Welfare Department had not filed a lien against the settle-

ment since they had paid $1,538 of Bowers’ medical bills.

Therefore, defendant retained $1,538 out of the settlement

in case the welfare department later filed a lien. During

this meeting between defendant and Powers-Bowers, the

following discussion took place:

O: They don’t want to pay anything. They fought all

this. I just can’t get the kind of money from Travelers that

I should have been able to get in your particular case

because of Coifman’s bad report, okay? That is a bad

report. Coifman doesn’t know that you’re getting seven

thousand plus another thirteen and so on and so forth. He

doesn’t know that.

P: He doesn’t know that. Okay.

O: No, absolute not. He thinks you’re settling for, ah,

forty eight.

* * * *

O: I’ve never been served with a welfare lien. If I had,

I couldn’t do what I’m doing.

A-17

P: Okay.

O: Now that’s where Welfare slipped up. They’re

supposed to send me a welfare lien but the case is only

six months old so they probably haven’t gotten to it yet.

When they get to it, I will then tell them what I collected

and once you arrange for an attorney, welfare will pay

me one third to collect the money.

Ps 5eee,

O: But they’re going to want the other two thirds

back.

P: So okay, that sixteen you might have to pay two

thirds of the hospital bill back to Welfare.

O: That’s right. ***

P: If they find out about this.

* * * *

P: Okay, I’ve heard stories now about insurance in-

vestigators following people around to find out if they

were really hurt. Am I going to have to watch out?

O: Your case is over. Your case.

P: Okay, I don’t *** Okay, it doesn’t make any dif-

ference i” ***

O: Because if you don’t ***

O: The only problem you’ve got is from welfare or

from Coifman. That’s the only problem you’ve got. You

say that Coifman ***

P: Coifman, Coifman ain’t gonna argue with this

because he knows that ***

O: You told me that he didn’t do half the work that

he said he did.

P: *** He knows he didn’t, get knows that I wasn’t

hurt right from the get-go.

A-18

O: Okay, I know that, you told me that, and that’s

why I settled for what you asked me to settle for ***

O: and there’s isn’t any two ways about it, that’s

ah a oh

P: He’s not going to argue about that.

O: That, that, I’ve got certain risks here and my risks

are if welfare comes I’ve got to pay them. That’s what I’m

holding the money for.

P: Okay.

O: I’m writing the letter the way I’m writing it, ya

know, to protect myself. I don’t trust Neff.

P: Well, Neff, Neff ain’t going to say nothin’s either

because *** T walk in the office and tell him that I wasn’t

hurt in the accident and Coifman asks me how bad do

I want to have been hurt.

ot Te

P: He ain’t gonna argue with this.

O: I don’t like to hear you tell me that. I don’t even

want to know that.

P: All right, I didn’t tell you that.

* *

O: This is from Travelers. And there’s ah, yeah, here

they are. I can give you a copy of this explanation of

payment, seven thousand bodily injury, three hundred thir-

teen dollas and sixty cents for property damage. I think

it’s a hell of a fair settlement.

P: I, I, well for someone that wasn’t even hurt. that’s

A-19

P: Okay, I, I ain’t going to have to worry about no

insurance man watching me or nothing?

O: No.

P: I don’t have to keep pretending I’ve been hurt or

nothing?

O: No, the case is over with.

P: Okay, good

O: You're settling. The full and final settlement, I

mean you don’t want, say, somebody to call the insurance

company some day and say you never were hurt, you

know so, ***

P: Say, what ***

O: But if they do, I don’t know anything about that.

P: I got a question, what happens if Neff or Coifman

get busted some time and they snitch me off.

O: Well, they don’t even know you, you're getting

any money on this case.

P: Yeah, but they know that, ah, well, they figure

that I’m getting something out of it.

O: Well, yeah, They think you’re getting a couple

thousand dollars.

P: Well, I mean on a phony claim, a thou, a couple

thousand dollars, I would go to jail.

O: Well, why should they snitch you off. They’re the

doctors.

* * *

O: Im protected on this because I don’t know that

you weren’t hurt.

P: Right.

O: No one’s ever told me that.

P: Well, I’m not going to tell you that.

A-20

O: I’m just an advocate trying to get you the best

kind of, ah, settlement possible ***

P: Right.

O: And, ah, my only thing is that I just know too

damn much about Coifman, and that’s why you're the

last case I’ve taken out of that place.

P: Ah *

O: I haven’t taken any since because you just get me

nervous.

P: Well, ah, if I get in any trouble or anything I’ll

give you a call. And maybe you can help me out there.

O: He’s not going to give you any problems.

P: No, I don’t mean that, I mean if ever I get in any

trouble or some, well, maybe I’ll have an accident next

year. This is an easy way to make some money.

O: Well, but, they’re going to know you have a pre-

existing claim now.

P: Ya, that’s true.

O: Ya, but it’s not an easy way ***

P: You couldn’t do that, too often, I don’t suppose.

O: No.

P: Aggravate ***

O: You went in the hospital, ah, the hospital’s gonna

have records now Coifman’s put things there.

P: Yeah.

O: Ah, people have accidents several times a year

but, ah, it doesn’t work after the first one if it’s too often.

You shouldn’t have another one for five years if you

want to make money.

On January 14, 1979, a search warrant was executed

at Dr. Coifman’s office. On January 15, 16, and 17, de-

A-21

fendant tried to reach Powers-Bowers by phone. On Jan-

uary 17, 1979, soon before a search warrant was exe-

cuted at defendant’s office, Powers-Bowers returned de-

fendant’s calls and the following discussion took place:

O: *** [A] client, totally unrelated to you, indicated

that, ah, that they were making an investigation of Dr.

Coifman and Nathan Neff.

P: They’re what?

O: Ah, that the police department’s making an in-

vestigation of, ah, of Coifman and Neff.

P: What’s that going to do to me?

O: Well, nothing, you had a legitimate injury, didn’t

you?

P: Well, you know about that.

O: Well, you told me it was legitimate. You know,

so they’re not going to do anything to you. You know,

were you faking anything? Cause if you were, you've

got a problem. But, ah, you were in the hospital. As a

matter of fact, you were treated by another doctor named

Engel, weren’t you?

pak {

: And I read Engel’s report and Engel found you

had a problem so ***

P: Well, you know what, I, I, told you that, I mean

that’s ***

O: Well, what you told me is you had, is you had a

problem.

P: I didn’t, I didn’t tell ***

O: Ah, and, ah, and, there’s a lot of people that see

Coifman that they have legitimate problems. I’m sure

on occasion there’s somebody that sees Coifman that

A-22

doesn’t have a problem. And they’re working something

out. Hell, when you and your girlfriend were in the of-

fice, you indicated well, you know, you didn’t know how

serious the problem was. And I told you I don’t know

how many times, that’s between you and Coifman. I’ve

never gone to medical school and I’m not a doctor. I

think I told you when you were first here, that you

know, I don’t like doing business with Coifman and as

a matter of fact, hadn’t for several months. As a matter

of fact, you were the very last person that I had any-

thing to do with Coifman. I wouldn’t touch a patient

from Coifman’s office for a million dollars. Let’s put it

this way, for five billion dollars, because, ah, ya know,

things just don’t look right. But you know, I don’t think

there’s anything to worry about, cause you had a legiti-

mate injury, another doctor examined you, or was there

even a third doctor. ***

This was Powers-Bowers’ last conversation with defendant.

At no time during their relationship did Powers-Bowers

tell defendant that no accident had occurred or that the

accident report or repair bili were fictitious. Additionally,

Powers-Bowers never told defendant, Dr. Coifman, or

Dr. Engel that he had a preexisting lower back condition

which was not caused by an automobile accident.

The issues presented in this appeal are:

(1) Whether the prosecution engaged in misconduct

which denied defendant a fair trial?

(2) Whether the trial court erred in admitting into

evidence the tape recordings of communications between

defendant and the undercover police officer which were

obtained without a warrant but which were consented to

by the police officer?

A-23

(3) Whether the trial court erred in permitting the

jury, while listening to the recorded conversations between

defendant and the undercover police officer, to refer to

transcripts of those recordings?

(4) Whether there was an inconsistency in the jury

verdict for which a new trial is required?

(5) Whether the trial court erred in refusing to dis-

miss either the two counts of conspiracy or the attempted

theft counts?

(6) Whether the trial court improperly instructed the

jury on the issue of reasonable doubt?

(7) Whether the trial court erred in accepting a par-

tial jury verdict?

(8) Whether the trial court erred in refusing to dis-

miss the indictment?

(9) Whether there was sufficient evidence for the jury

to find that defendant committed the crimes of attempted

theft by swindle?

(10) Whether the trial court erred in dismissing the

entrapment defense?

(11) Whether the trial court properly conducted the

Schwartz hearing?

1. A trial, the prosecution asked various questions of

Detective Meath and Deputy Powers (Bowers) concerning

the police investigation into the possible illegal activities

of Dr. Coifman and Coifman’s business manager, Nathan

Neff. Defendant argues that the prosecution, by asking

these questions, sought to repeatedly suggest to the jury

A-24

that there was some type of “sinister” cooperation be-

tween Coifman, Neff, and defendant and to associate de-

fendant with Coifman and Neff’s illegal acts. Defendant

contends that this questioning was improper and served

to prejudice defendant and deny defendant a fair trial

since defendant was not being tried for a conspiracy be-

tween him and Coifman and/or Neff.”

The questions asked by the prosecution were not im-

proper and the evidence introduced by means of these

questions was admissible. The evidence admitted concern-

ing Coifman and Neff served to provide the jury with

background information concerning the police investiga-

tion into insurance fraud and showed how Deputy Powers

came to be associated with defendant. Such background

information is relevant evidence and is admissible. Rules

401 and 402, Rules of Evidence; see Advisory Commit-

tee Note to Rule 401, Fed. Rules of Evidence. Of course,

relevant evidence may be excluded pursuant to Rule 403,

Rules of Evidence, if the danger of unfair prejudice sub-

stantially outweighs its probative value. However, rulings

on evidentiary matters rest within the sound discretion of

the trial court. E.C.I. Corp. vs. G.G.C. Co., 306 Minn.

433, 437, 237 N.W.2d 627, 630 (1976). The trial court

determined that the background evidence concerning the

police investigation of Coifman and Neff was admissible

and this determination was not an abuse of the trial

court’s discretion.

Defendant also claims that questions asked of two de-

fense witnesses by the prosecutor as to whether an at-

*The indictment against defendant originally alleged a cons iracy between

defendant, Powers-Bowers, “and others.” The “and po language

was depleted prior to trial. Therefore, the trial did not concern any

conspiracy between defendant and Coifman and/or Neff.

A-25

torney had a higher duty than to represent the best inter-

ests of his client was clearly prejudicial to defendant. The

first reference to a higher duty was made by the prosecuting

attorney when he was cross-examining a defense witness

who had been qualified as a legal expert in the area of

personal injury claims. The question was asked in this

context:

Q. *** You have told us that there is an obligation

on an attorney to represent his client’s best interests and

go forward with his claim in keeping with his obligations

to the client and to the code of ethics, is that a fair sum-

mary?

A. I think so, true.

Q. Is there a higher duty than that which would run

to a client who walks in off the street and asks you to

do something for him?

Mr. Collins: I’m going to object to this, Your Honor,

on the grounds it’s immaterial, irrelevant. Also, improper.

The Court: I will sustain on the first ground.

A similar question was asked during the prosecution’s

cross-examination of defendant as follows:

Q. You mentioned an ethical duty to represent your

client’s best interests, I believe?

A. Y@s, sir.

Q. Do you have a higher duty than to represent a

client’s interests?

Mr. Collins: I’m going to object to that, Your Honor,

on the grounds that it’s immaterial and irrelevant. May

we approach the bench?

The Court: Yes.

* * *

A-26

The Court: I will sustain an objection to the question.

Defendant argues that through these questions the pros-

ecution sought to suggest that defendant, because of his

status as a lawyer, has a higher duty to obey the law than

does an ordinary citizen. However, these questions appear

only tc have been asked in order to establish that an

attorney’s duty to obey the law outweighs any ethical duty

to zealously pursue his clients’ claims and did not sug-

gest that a lawyer has a greater duty to obey the law

than others. As such, these questions were not improper

nor did they serve to deny defendant a fair trial especially

since the trial court sustained objections to these questions.

Prior to trial, Detective Meath interviewed Dr. Engel,

the doctor who had examined Powers-Bowers during his

hospitalization, and made a report of that interview. De-

fendant claims that the state failed to produce the report

of the interview with Dr, Engel and that such failure vio-

lated Rule 9.01, Rules of Criminal Procedure, and de-

fendant’s due process rights. Even assuming that the fail-

‘ure to turn over this information was improper, it is clear

that defendant was not prejudiced thereby. Defendant had

Detective Meath’s report in his possession at trial and,

in fact, submitted this report into evidence. Furthermore,

Rule 9.01, subd. 1(a), Rules of Criminal Procedure, was

not violated because Dr. Engel appeared as a witness for

the defense at trial. The state did not call him as a witness.

2. Defendant asks this court to hold that the use at

trial of oral and wire communications, intercepted by

means of electronic monitoring and recording devices with

the consent of one of the parties to the communications,

violated defendant’s constitutional right against unreason-

A-27

able searches and seizures since no warrant was obtained

for the interceptions.

We recently addressed this issue in State v. Bellfield,

275 N.W.2d 577, 578 (Minn. 1978), and held:

Because one of the parties to these conversations—

i.e., the informer—voluntarily consented to the tap-

ing of these calls, no warrant was required by either

the Federal or state statutes relating to interception

and recording of telephone communications, and no

Fourth Amendment issue is presented.

See also United States v. White, 401 U.S. 745 (1971);

Minn, Stat. §626A.02, subd. 2(c) (1978). Our Bell-

field ruling is dispositive of the issue presented and we,

therefore, reject defendant’s argument.

3. At trial, the jury was allowed to refer to transcripts

of tape recorded conversations between defendant and

Powers-Bowers while the jury listened to the actual tape

recordings of those conversations. Defendant argues that

the trial court committed reversible error by allowing such

use of these transcripts.

In United States v. McMillan, 508 F.2d 101 (8th Cir.

1974), cert. denied, 421 U.S. 916 (1975), the Eighth

Circuit set forth guidelines for the use of transcripts of

tape recordings at trial as follows:

If accuracy remains an issue, a foundation may first

be laid by having the person who prepared the tran-

scripts testify that he has listened to the recordings

and accurately transcribed their contents. (Citations

omitted.) Because the need for transcripts is gen-

erally caused by two circumstances, inaudibility of

A-28

portions of the tape under the circumstances in which

it will be replayed or the need to identify the speak-

ers, (citations omitted) it may be appropriate, in the

sound discretion of the trial judge, to furnish the

jurors with copies of a transcript to assist them in

listening to the tapes. In the ordinary case this will

not be prejudicially cumulative. (Citations omitted. )

Transcripts should not ordinarily be read to the jury

or given independent weight. The trial judge should

carefully instruct the jury that differences in mean-

ing may be caused by such factors as the inflection

in a speaker’s voice or inaccuracies in the transcript

and that they should, therefore, rely on what they

hear rather than on what they read when there is

a difference. Transcripts should not ordinarily be

admitted into evidence unless both sides stipulate to

their accuracy and agree to their use as evidence.

(Citation omitted. )

508 F.2d at 105-106. These guidelines appropriately rec-

ognize the need for the use of transcripts in certain in-

stances and at the same time serve to protect against any

undue emphasis which might be given to such transcripts.

In this case, the accuracy of the transcripts was in

issue. Therefore, Deputy Powers, the preparer of the tran-

scripts, laid a proper foundation for their use. He testi-

fied that he prepared the transcripts after listening to the

tapes several times and that the transcripts accurately re-

flected the conversations between defendant and him. Ad-

ditionally, the tapes were not clearly audible in part and

the transcripts served to identify the speakers. Therefore,

the trial court did not abuse its discretion in determining

A-29

to allow the use of the transcripts. Furthermore, the trial

court carefully admonished the jurors to rely on what they

heard rather than on what they read:

[The Court]: All right, we will proceed with the

recordings. Jurors, you will each be provided with what

is purported to be a transcript of the taped conver-

sation. The parties do not agree that the transcripts

are exact transcripts, nor do they agree as to what

was said or what was heard from a portion of the

tapes in some instances. The differences in under-

standing of meaning or meaning what was said may

be caused by such factors as the inflection of a voice

or inaccuracies of the transcript and you should rely

upon what you hear rather than what you read if

you find a difference between the tape and the tran-

scripts. The transcripts are provided to you to assist

you in listening to the tapes and will be collected

from you at the conclusion of the playing of each

tape. The transcripts will not be available to you

during your deliberations to reach a verdict.

Sometimes on the tapes it appears that two or more

persons talk at the same time. It is for the jurors to

determine from the tape which party talked first.

The transcript is not to control. The tape is to control.

A transcript of each tape was distributed to the jury

just prior to the playing of that tape and was immedi-

ately picked up after that tape was played. The tran-

scripts were not placed in evidence; only the tapes were.

Thus, the McMillan guidelines were carefully followed

and no error occurred.

A-30

4. Defendant was charged with two counts of con-

spiracy and two counts of attempted theft. The jury re-

turned a verdict of guilty on the attempted theft counts

but was unable to reach a verdict on the conspiracy

counts. Defendant argues that this constitutes an “incon-

sistent” jury verdict.

We do not agree with defendant’s argument that the

failure to reach a verdict on certain counts may serve

to render a verdict inconsistent. Furthermore, even as-

suming arguendo that there is any inconsistency in the

verdict returned by the jury, reversal is not required as

defendant suggests. This court has adopted the majority

rule with respect to inconsistent jury verdict as follows:

The general rule is that a defendant who is found

guilty of one count of a two count indictment or

complaint is not entitled to a new trial or a dismis-

sal simply because the jury found him not guilty

of the other count, even if the guilty and not guilty

verdicts may be said to be logically inconsistent.

State v. Juelfs, 270 N.W.2d 873, 874 (Minn. 1978).

Therefore we find defendant’s argument to be meritless.

5. Defendants argue that the indictment charging him

with two counts of attempted theft and two counts of

conspiracy was multiplicious, Defendant makes this argu-

ment by contending that attempted theft and conspiracy

were essentially identical crimes in this case. Defendant

claims, therefore, that the trial court erroneously refused

to dismiss either the attempted theft counts or the con-

spiracy counts of the indictment.

A-31

The essential elements of the crime of attempt are: (1)

an intent to commit a crime, and (2) a substantial step

taken toward the crime’s commission. See Minnesota

Practice Crim. Jury Instruction Guides 5.01 (1977). The

elements of the crime of conspiracy are: (1) an agree-

ment with another to commit a crime, and (2) an overt

act in furtherance of the conspiracy. See Minnesota Prac-

tice Crim. Jury Instruction Guides 5.07 (1977). Thus,

the crimes of conspiracy and attempt each require dis-

tinct elements of proof and are entirely separate crimes.

State v. St. Christopher, 305 Minn .226, 235-36, 232

N.W.2d 798, 803-04 (1975); Cf. United States v. Brod-

beck, 430 F.Supp. 1056 (Wis. 1977). It was, therefore,

proper to charge defendant with both the crimes of con-

spiracy and attempted theft in the indictment.

6. The trial court, in its instructions to the jury, de-

fined proof beyond a reasonable doubt as follows:

A reasonable doubt is doubt based upon reason

and common sense and arising from the state of the

evidence. It is rarely possible to prove anything to

an absolute certainty. Proof beyond a reasonable

doubt is established if the evidence is such as you

would be willing to rely on and act upon in the most

important of your own affairs.

Defendant argues that this instruction is erroneous be-

cause it defines reasonable doubt in terms of a “willing-

ness to act.” Defendant contended at trial that reasonable

doubt should be defined in terms of a willingness to act

without hesitation.

The proposed instruction on reasonable doubt in Min-

nesota Practice Crim. Jury Instruction Guide 3.03 con-

A-32

tains, in pertinent part, language which is identical to

that used by the trial court in this case. The comment

to that proposed instruction rejects the use of the term

“without hesitation” on the ground that it suggests a reck-

lessness which is antithetical to the rational process to

be pursued by a jury. We agree.

Defendant also contends that the trial court’s instruc-

tion was erroneous because it did not convey to the jury

that they would have no reasonable doubt if they were

“morally certain” of their decision. In State v. Boykin,

312 Minn. 593, 252 N.W.2d 604 (1977), we upheld the

trial court’s decision not to give a “moral certainty” in-

struction. In doing so, we cited /nited States v. Lawson,

507 F.2d 433 (7th Cir. 1974), cert. denied, 420 US.

1004 (1975), and quoted with approval the following lan-

guage from that case:

Because of the very commonness of the words, the

straining for making the clear more clear has the

trap of producing complexity and consequent con-

fusion. That this difficulty may be surmounted is evi-

denced by the attempts which have been approved,

although the language of approval has frequently im-

plicitly suggested the difficulties of articulation. That

the difficulties may be surmounted, however, does not

mean in our opinion that the effort has to be made.

The essential aspect of the matter it appears to

us is that the jury clearly understood that there must

be proof persuasive beyond a reasonable doubt. De-

fining the term should be at the option of the trial

judge even though a defining instruction is tendered.

Lack of definition would not appear to be prejudi-

cial. 507 F.2d at 442.

A-33

312 Minn. at 594, 252 N.W.2d at 606. We find that the

instruction given in this case adequately conveyed the

concept of proof beyond a reasonable doubt to the jury.

7. Defendant claims that the trial court committed

reversible error by accepting a partial jury verdict. Since

each count of an indictment is to be treated as a separate

indictment, People v. Pierce, 40 App. Div. 2d 581, 334

N.Y.S.2d 410 (1972), we find that it was not improper

to accept a verdict on only some of the counts charged

when the jury was unable to reach a verdict on all counts.

See Selvester v. United States, 170 U.S. 262, 265 (1898);

Tyler v. United States, 397 F.2d 565, 570 (Sth Cir. 1968),

cert. denied, 394 U.S. 917 (1969).

8. Defendant argues that prosecutorial misconduct oc-

curred during the grand jury proceedings which so tainted

those proceedings that the indictment should have been

dismissed.

Defendant first contends that the prosecution improp-

erly elicited testimony from Detective Meath concerning

the investigation of Dr. Coifman and Nathan Neff and

improperly allowed the grand jury to use transcripts of

the taped conversations between defendant and Powers-

Bowers. These contentions have been dealt with and re-

jected above.

Defendant also argues that the prosecution improperly

failed to provide a verbatim record of all statements made

by the prosecution to the grand jury. Rule 18.05, subd. 1,

Rules of Criminal Procedure, does not require that all

statements made by the prosecution be recorded. It only

requires that a record be made of all statements of grand

jury witnesses as follows:

A-34

A verbatim record shall be made by a reporter or

recording instrument of the evidence taken before

the grand jury and of all statements made and events

occurring while the witness is before the grand jury.

This quirement was complied with in this case.

In addition, defendant suggests that pre-grand jury

publicity concerning this case served to unfairly prejudice

the grand jury’s determination. However, defendant does

not explain how this publicity affected the proceedings,

nor does he present any evidence showing that the pub-

licity had any effect on the grand jury. Therefore, we must

reject defendant’s argument as merely speculative.

Lastly, defendant argues that the prosecution engaged

in misconduct during the grand jury proceedings by fail-

ing to present evidence to the grand jury concerning the

medical examination of Powers-Bowers by Dr. Engel. De-

fendant claims that the failure to produce this evidence

was improper because it constituted exculpatory evidence.

The export of Dr. Engel’s examination of Powers-Bowers

indicated that Powers-Bowers had a valid lower back in-

jury and defendant reviewed this report. Defendant claims

that he justifiably relied on this report in determining that

Powers-Bowers had a valid claim against the insurance

companies and that, therefore, the medical report was ex-

culpatory.

Defendant’s characteriztion of this evidence must be re-

viewed not in a vacuum but in context with the other

evidence presented to the grand jury. The failure to pro-

duce this evidence will not require reversal unless it would

have materilaly affected the procedings. See generally

Brady v. Maryland, 373 U.S. 83 (1963). The evidence

A-35

presented to the grand jury showed that although certain

medical reports indicated that Powers-Bowers had a valid

injury, defendant was repeatedly told by Powers-Bowers

that he was not injured and that Powers-Bowers had suc-

cessfully feigned injury while in the hospital. Thus, the

Engel medical report cannot be said to be evidence which

would have materially affected the grand jury determina-

tion. Therefore, the trial court did not err in refusing to

dismiss the indictment.

9. Defendant contends that there was insufficient evi-

dence presented at trial to sustain a verdict of guilty of

the crimes of attempted theft by swindle. In determining

the sufficiency of the evidence in a criminal matter, this

court “must view the evidence in a light most favorable

to the jury verdict and decide whether the jury could

reasonably have found the defendant guilty of the crime

charged.” State v. Swain, 269 N.W.2d 707, 712 (Minn.

1978).

The only disputed issue before the jury in this case

concerned the intent element of the crime of attempted

theft by swindle. The essence of a swindle is the defraud-

ing of another of his property by deliberate artifice. State

v. Ruffin, 280 Minn. 126, 129-30, 158 N.W.2d 202, 205

(1968); State v. Wells, 265 Minn. 212, 214, 121 N.W.2d

68, 69 (1963). The offense covers a broad range of fraudu-

lent conduct and, thus, the various elements of the offense

are incapable of precise definition. 280 Minn. at 130, 158

N.W.2d at 205. However, in the context of insurance

fraud, it is our conclusion that the intent element may be

satisfied through proof that the defendant knew of the

falsity of a claim which he presented to an insurance com-

A-36

pany or presented a claim which he knew to be unjusti-

fied by the information in his possession.

We find that there was clearly sufficient evidence to

support the guilty verdict in this case. The evidence sup-

porting the conviction is outlined above. This evidence

indicates that defendant presented Powers-Bowers’ claims

to two insurance companies even though Powers-Bowers

had told defendant that he was not injured.

At trial, defendant took the stand and testified that he

never understood that Bowers was faking his injuries. He

testified that during their relationship, Bowers acted weird,

that he reminded defendant of a “Glenwood Hills pa-

tient”, that Bowers posed “strange hypotheticals” to him,

and that he had to humor Bowers. Defendant testified

that although Bowers told him at times that he was not

hurt, defendant relied on the accident reports, medical

reports, and Bowers’ explanation of the accident and his

injuries to determine that Bowers had a valid claim. De-

fendant’s wife, Nancy Oklon, also testified on behalf of

defendant. She stated that defendant had difficulty listen-

ing to and comprehending the statements of other per-

sons. She also testified that defendan’ at times, displayed

a bizarre sense of humor and sometimes made inappro-

priate jokes. A number of other witnesses all testified to

defendant’s good reputation for truth and honesty in the

community.

Defendant’s claimed reliance on medical reports in con-

cluding that Powers-Bowers had a valid injury must be

viewed in light of the contrary evidence that Powers-

Bowers had informed defendant that Dr. Coifman knew

that he was not injured and that Powers-Bowers had been

able to “fool” everyone at the hospital with respect to

A-37

his injuries, The jury was at liberty to disbelieve defend-

ant’s evidence and could conclude from all the evidence

either that defendant knew that he was presenting a false

claim or that defendant knew the claim to be unjustified

based on the information given to him by Powers-Bowers.

Defendant also argues that, in settling his client’s claims,

he was only discharging his ethical duty as a lawyer to

represent his client zealously. Defendant also contends that

he had a special duty in this regard because Bowers was

a “street person” who displayed “psychotic” tendencies.

The short answer to this contention is that although an

attorney does have the duty to represent his client zealously,

he must do so within the bounds of the law. See Canon 7,

Code of Professional Responsibility.

10. Defendant argues that the trial court erred in dis-

missing the entrapment defense raised by defendant. The

trial court determined that the state merely provided de-

fendant with the opportunity to commit the crime and that,

therefore, no entrapment occurred.

The leading case in Minnesota on the defense of en-

trapment is State v. Grilli, 304 Minn. 80, 230 N.W.2d

445 (1975). In that case, we stated:

In order to decide whether defendant was en-

trapped, focus must be placed on the necessary ele-

ments of the defense. The long-established, presently

prevailing majority rule associated with the majority

opinions in the three United States Supreme Court

cases, Sorrells, Sherman, and Russell, has been termed

the “subjective” test. United States v. Russell, 411

U.S. 423, 440, 93 S.Ct. 1637, 1647, 36 L.Ed.2d

366, 378 (Mr. Justice Stewart dissenting). In the

A-38

majority view, the inquiry on entrapment is concerned

primarily with the element of defendant’s predisposi-

tion: whether it was his own original intent to com-

mit the crime charged. The defense must show that

the actions of the police went further than those nec-

essary to produce evidence of the defendant’s crim-

inality.

* * eae

In disposition of the case before us, we maintain

Our support of the majority view as expressed in

Sorrells, Sherman, and most recently in Russell, that

“predisposition” as well as “inducement” should be

considered when the entrapment issue arises before

(or during) trial. We therefore adhere to the “sub-

jective” approach in so far as it retains “predisposi-

tion” as an ingredient of entrapment cases.

304 Minn. at 89, 91-92, 230 N.W.2d at 452, 453 (foot-

note omitted).

With respect to proof of the element of inducement,

the majority view is that the evidence must show that

the state did something more than merely solicit the com-

mission of a crime. See United States v. Burkley, 591

F.2d 903 (D.C. Cir. 1978), cert. denied, 440 U.S. 966

(1979); United States v. Deupre, 423 F.2d 1069 (4th

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

States v. Costello, 483 F.2d 1366 (5th Cir. 1973); United

States v. Christopher, 488 F.2d 849 (9th Cir. 1973).

But see United States v. Licursi, 525 F.2d 1164 (2d Cir.

1975), United States v. Armocida, 515 F.2d 49 (3d Cir.),

cert. denied, 423 U.S. 858 (1975). Although we have not

heretofore directly addressed this question, we find that

| A-39

something in the nature of persuasion, badgering, or pres-

sure by the state must occur before the inducement ele-

ment is satisfied.

In: addressing the element of predisposition, we have

stated:

[Where the state can show the defendant’s “predis-

position” by eyidence of (a) defendant’s active solici-

tation to commit the crime, (b) prior criminal con-

victions, or’ (c)" prior criminal activity not resulting

in conviction (as here), or (d) defendant’s criminal

reputation, or by any other adequate means the

challenged conduct of the state’s officers is mitigated

or excused, and the defense of entrapment is not

proved.

304 Minn. at 89, 230 N.W.2d at 452. In this case, there

was no evidence that defendant actively solicited the com-

mission of the offense, had prior criminal conviction, had

engaged in prior criminal activity, or had a prior criminal

reputation. Therefore, we must determine whether defend-

ant’s predisposition was shown by other adequate means.

In a number of cases, courts have found that predispo-

sition may be proved by evidence that the accused readily

responded to the solicitation of the commission of a crime

by the state. See United States v. Spain, 536 F.2d 170

(7th Cir.), cert. denied, 429 U.S. 833 (1976); United

States v. Pricto-Olivas, 419 F.2d 149 (Sth Cir. 1969);

United States v. Ortiz, 496 F.2d 705 (2d Cir. 1974).

See generally Masciale v. United States, 356 U.S. 386

(1958); State v. Poague, 245 Minn. 438, 72 N.W.2d

620 (1955). We acquiesce in this view.

A-40

We conclude that the evidence is sufficient to show

that defendant was not induced into the commission of

any offense and that defendant readily responded to the

solicitation by Powers-Bowers. The evidence indicates that

Powers-Bowers went to defendant and indicated to him

that he wanted to file an insurance claim even though he

was not injured. The evidence also indicates that defendant

readily agreed to represent Bowers, Furthermore, the evi-

dence shows that Bowers did not exert pressure on defend-

ant. In fact, Bowers clearly told defendant that defendant

could withdraw from representat ion if he wished to as

follows:

P: Because, ah—as a matter of fact I would say

that if—if you’re worried about me, maybe you should

—maybe I should go find some other attorney—

if—ah—I mean this is here again, like I, I’m not

going to say anything—they’re sure not gonna.

* *

P: Sure. And after you check that over, and de-

cide you don’t want me around, just let me know.

(Emphasis added. )

Therefore, we conclude that the trial court did not err in dis-

missing the entrapment defense.

11. Subsequent to trial, Mr: Tom Matthews, a tele-

vision investigator, sent a letter to Judge Amdahl which

stated that he had heard from at least two sources that

anti-Semitic remarks may have occurred during the jury

deliberations. The letter also indicated that one of the

jurors may have been predisposed to find defendant guilty

before the jury deliberations began. Judge Amdahl also

A-41

received two affidavits from a Mr. Cox, the father of a

juror, and a Mr. Hunter. The Cox affidavit indicated that

“anti-Semitism” may have occurred during the delibera-

tions. The Hunter affidavit indicated that a juror may have

had, during the trial, an improper discussion with the

juror’s employer about the trial. On the basis of this in-

formation, the trial court granted defendant’s motion for

a “Schwartz” hearing pursuant to Rule 26.03, subd. 19(6),

Rules of Criminal Procedure.

‘The trial court determined to call six of the jurors to

testify at the hearing for the following reasons:

The Court requested six of the twelve jurors to

appear for questioning concerning alleged statements

indicating religious bias. Two of the six were jurors

named in the document filed with the Court (a let-

ter from Mr. Matthews—a TV investigator—and an

affidavit of the father of one of the jurors) reciting

alleged anti-Semitic conduct. A third juror was one

who was named in an affidavit filed concerning a

lunch-time contact with his emplo er, and, because

his presence was needed to question him on that event,

was also to be one of the jurors to be questioned about

the anti-Semitic allegation. A fourth was one of the

oldest jurors who was selected by the Court because

Mr. Matthews’ letter referred to “an older man” as

a source of a statement indicating bias. The fifth

juror was the foreperson of the jury, and the sixth

was chosen at random from the remaining jurors to

bring to 50% the jury representation at the hearing.

At the hearing, all of the six jurors called testified that

they had not heard any anti-Semitic remarks during the

A-42

deliberations. The juror who had had the contact with

his employer testified that the contact had not influenced

his decision-making. Therefore, the court denied defend-

ant’s motion for a new trial because of juror misconduct.

Defendant argues that the trial court conducted the

Schwartz hearing improperly. He first contends that the

trial court should haye called all 12 jurors to testify in-

stead of six. While there are no cases which have addressed

this issue, we find that the manner in which a Schwartz

hearing is conducted rests within the sound discretion of

the trial court. In this case, the trial court did not abuse

its discretion in determining to call six jurors, four of

whom were referred to in the allegations of misconduct.

This is especially true in light of the fact that no juror

misconduct was revealed by the testimony of the six jurors.

Defendant also contends that the trial court improperly

limited the scope of inquiry at the Schwartz hearing. Prior

to the hearing, defense counsel requested that he be allowed

to inquire into the possible predisposition of an older juror

to convict from the beginning of the deliberations. The

court denied this request.

The trial court properly determined not to allow ques-

tioning concerning the predisposition of any jurors. Rule

606(b), Rules of Evidence, provides:

Inquiry into validity of verdict or indictment. Upon

an inquiry into the validity of a verdict or indictment,

a juror may not testify as to any matter or state-

ment occurring during the course of the jury’s de-

liberations or to the effect of anything upon his or

any other juror’s mind or emotions as influencing him

to assent to or dissent from the verdict or indictment

A-43

or concerning his mental processes in connection

therewith, except that a juror may testify on the ques-

tion whether extraneous prejudicial information was

improperly brought to the jury’s attention or whether

any outside influence was improperly brought to bear

upon any jurcr. Nor may his affidavit or evidence of

any statement by him concerning a matter about

which he would be precluded from testifying be re-

ceived for these purposes.

Thus, under the rule, the thought processes of a juror are

protected from later inquiry. See 1977 Committee Com-

ment to Rule 606. Any inquiry into the predisposition of

a juror would constitute improper scrutiny of the state

of mind or the thought process of the juror in contraven-

tion of Rule 606(b).

We have considered all other arguments raised by de-

fendant and have determined that they are without merit.

The judgment is, therefore, affirmed.

Affirmed.

Amdahl, J., not having been a member of this court at

the time of the argument and submission, took no part

in the consideration or decision of this case.

YETKA, Justice (dissenting).

I dissent. The role of this court, the court of last resort

for most parties, is to see that justice is done in the courts

of this state. When we are of the firm conviction that a

mistake has been made or that an injustice has been

done to a party, it is our duty to correct the wrong. While

I do not think the trial court erred based upon our prior

decisions, there are a number of troubling factors in this

case which, in my view, warrant reversing the conviction.

A-44

The facts of this case are unlike any other case this

court has seen. The police were not after Ellis Olkon;

they were after Dr. Robert Coifman, who was suspected

of issuing fraudulent medical reports. The police had no

information nor any suspicion that Olkon was involved

in any fraud schemes. They decided to “test” Olkon only

after Dr. Coifman referred policeman Walter Powers to

Olkon. Thus, the police had no rational justification for

setting a trap for Olkon.

Olkon received both a police report indicating that an

automobile accident had occurred and medical reports

indicating that Powers was injured. Some of the medical

reports were from Dr. Coifman, whom, as the majority

indicates, Olkon may have had reason to doubt. However,

Olkon also received a report verifying the injury from Dr.

Engel, a physician totally independent of Dr. Coifman

and beyond any suspicion.

Of course, Powers told Olkon he had fooled the doctors.

Olkon had good reason to disbelieve this assertion due

to the medical reports themselves, Powers’ highly unusual

behavior, and a medical report indicating that Powers had

a character or personality disorder. It is also relevant

here that Powers never denied that the accident had oc-

curred. Olkon believed Powers was a “macho” type trying

to downplay his injuries.

Moreover, Powers had not really fooled the doctors at

all. Powers had previously suffered a real back injury.

He disclosed this fact neither to his doctors nor Olkon.

Thus, in reality, Powers had not fooled the doctors; the

doctors’ reports were correct and Olkon was justified in

relying on them. With these facts in mind, we can turn

to the troubling issues presented.

A-45

Olkon urges that the indictment should have been dis-

missed because the prosecutor failed to disclose to the grand

jury known exculpatory evidence: Dr. Engel’s report ver-

ifying the injury and the fact that Powers did in fact have

a real back injury. Since the duty of a grand jury “is to

clear the innocent, no less than to bring to trial those who

may be guilty,” United States v. Dionisio, 410 U.S. 1, 16-

17 (1975), several courts have held that a prosecutor has

a duty to disclose known exculpatory evidence to the grand

jury.* The ABA Standards for Criminal Justice, The Pros-

ecution Function §3.6(b) (Approved Draft 1971) states,

“The prosecutor should disclose to the grand jury any evi-

dence which he knows will tend to negate guilt.” We pre-

viously urged prosecutors to follow this standard. See State

v. Florence, 306 Minn. 442, 457 n. 19, 239 N.W.2d 892,

902 (1976).

Applying these standards to this case, I would hold that

the indictment should have been dismissed. It is specious

to argue that these items of evidence were not significant;

they were crucial indicators that Olkon had good reason

to file the insurance claim based upon the medical reports

he had received.

For many of the same reasons, I believe the evidence

in general was not sufficient to support the verdict of guilty

of the crime of attempted theft by swindle. As the ma-

jority notes, the key issue is whether the prosecution proved

beyond a reasonable doubt that Olkon knew the insurance

claim was false. First, however, it must be decided whether

8See, e.g., Frink v. State, 577 P.2d 154 (Alaska 1979); Johnson v.

Prat Court, 15 Cal. 3d 248, 539 P.2d 792, 124 Cal. Rptr. 32

(1975); State v. Hall, 235 N.W.2d 702 (Iowa 1975); State v. Herrera,

93 N.M. 442, 601 P.2d 75 (Ft. App.), cert. denied, 93 N.M. 683,

604 P.2d 821 (1979).

A-46

the claim was totally false. The insurance claim made

essentially two assertions: (a) that Powers had a back

injury; and (b) that the injury was caused by the acci-

dent in question. As noted previously, assertion (a) was

true because Powers did in fact have a back injury which

was properly diagnosed by the doctors. Assertion (b) was

false because the back injury was pre-existing. However,

Powers never disclosed this to Olkon or to the doctors.

Thus, there is no way Olkon can be charged with knowl-

edge of the falsity of assertion (b) so the intent element is

simply nonexistent.

Even disregarding the pre-existing back inquiry, Olkon

cannot be charged with intent to file a false claim. As

noted in the facts above, Olkon was justified in relying

on the two independent medical reports. Although Pow-

ers tried to downplay his injuries, Olkon knew Powers had

psychological problems and felt that he was trying to prove

his toughness. Olkon was never given reason to doubt that

the accident had occurred. Thus, even if the actual exist-

ence of the back injury is ignored, Olkon was justified in

believing the claim to be proper.

As Powers’ attorney, Olkon had a duty to represent him

“zealously within the bounds of the law.” Minn. Code of

Professional Responsibility, Cannon 7. The code also pro-

vides:

EC 7-3. *** In asserting a position on behalf of

his client, an advocate for the most part deals with

past conduct and must take the facts as he finds

them, ***

i |

A-47

EC 7-19. *** An adversary presentation counters

the natural human tendency to judge too swiftly in

terms of the familiar that which is not yet fully

known; the advocate, by his zealous preparation and

presentation of facts and law, enables the tribunal to

come to the hearing with an open and neutral mind

and to render impartial judgments. The duty of a

lawyer to his client and his duty to the legal system

are the same: to represent his client zealously within

the bounds of the law.

* ok Be

EC 7-26. The law and Disciplinary Rules prohibit

the use of fraudulent, false, or perjured testimony or

evidence. A lawyer who knowingly participates in intro-

duction of such testimony or evidence is subject to dis-

cipline. A lawyer should, however, present any ad-

missible evidence his client desires to have presented

unless he knows, or from facts within his knowledge

should know, that such testimony or evidence is false,

fraudulent, or perjured.

Unless a lawyer knows that the client’s factual statements

are false, his duty is to advocate the client’s position zeal-

ously. The attorney is not required to make an independent

investigation of his client’s veracity in an effort to impeach

him; that is the duty of the other parties in an adversary

system. The insurance companies could have investigated

the case and had further medical examinations taken. Un-

fortunately, the protections of the adversary system were

wholly lacking since the insurance companies were in

collusion with the police. The insurers never questioned

the early medical reports and never indicated any doubt

as to the claim.

A-48

I do not believe that the defendant would ever have been

prosecuted were he not a lawyer. The evidence of guilt is

simply too flimsy and ambiguous. I believe the prosecution

felt compelled to prosecute him out of fear of possible public

censure that it was deliberately being easy on a member

of the legal profession.

Under the facts of this case, I would hold that Olkon was

justified in filing the claim and that intent to file a false

claim on his part was not proven beyond a reasonable

doubt.

I also believe the defendant was entrapped and that this is

a total defense to the charges brought. In State v. Grilli,

304 Minn. 80, 230 N.W.2d 445 (1975), this court adopted

the “subjective” test for entrapment. While I believe Grilli

should now be overruled and the “objective” test adopted,

I also believe the facts show that Olkon was entrapped even

under the subjective test.

The subjective test of Grilli focuses on the particular

defendant involved, the key question being whether the

defendant was predisposed to commit the crime. There is

no evidence whatsoever that Olkon was predisposed to

commit this crime. The Grilli case stated four specific ways

of proving predisposition, but not one of them is true here.

The majority states that predisposition can be proven by

the willingness of the person to participate in this crime.

Neither Grilli nor State v. Poague, 245 Minn. 438, 72

N W.2d 620 (1955) supports that principle*, and we should

not adopt it now.

‘In State v. Poague, 245 Minn. 438, 72 N.W.2d 620 (1955), the woman

charged with a prostitute ran a “dating service” which could

have been a front for a prostitution service and the police were acting

on a = received. In State v. Grilli, 304 Minn. 80, 230 N.W.2d

445 (1975), the defendant approached the undercover agent with

to selling him drugs and there was also evidence of prior

possession of illegal drugs.

A-49

The subjective test has also been referred to as the

“origin of intent” test. See State v. Grilli, 304 Minn. at 88,

230 N.W.2d at 451. In this case, there is no question but that

the whole scheme was contrived by the police in order to

trap Coifman. In Grilli, we quoted with approval the fol-

lowing from Newman y. United States, 299 F. 128, 131

(4th Cir. 1924):

When the criminal design originates, not with the

accused, but is conceived in the mind of the govern-

ment officers, and the accused is by persuasion, deceit-

ful representation, or inducement lured into the com-

mission of a criminal act, the government is estopped

by sound public policy from prosecution therefor.

Since the criminal design here originated with the police and

Olkon was lured by numerous deceitful acts into filing the

insurance claim, he has a valid entrapment defense even

under the subjective test.

In a case with strikingly similar facts, the Illinois Supreme

Court held that the attarney had been entrapped under the

“Subjective” test. In re Horwitz 360 Ill. 313, 196 N.E. 208

(1935). In that case, as here, the detective had created a

fictitious accident but never told the attorney it had not

occurred. The detective also had a pre-existing back injury

but never disclosed it. The medical reports verified the in-

jury but the detective, when concealed witnesses were lis-

tening, made statements such as “You know I am not

injured.” The Illinois court concluded:

If this entire record is interpreted most strongly against

the respondent, it falls short of sufficient ground for

disbarment. He was entrapped by a set of false and

A-50

carefully arranged circumstances and evidence suffi-

ciently valid, and apparently real, to deceive an ex-

perienced practitioner.

360 Ill. 313, 196 N.E. at 213. Although that case was a

disciplinary case, it is even less proper to convict such an

attorney of a crime because of the higher standard of proof

and the necessity of proving intent. I would apply Horwitz

and hold that Olkon was entrapped under the Grilli test.

I also believe we should now overrule Grilli and adopt the

objective test. The objective test, as formulated in the

American Law Institute, Model Penal‘Code § 2.13(1)

(Proposed Official Draft 1962), provides:

A public law enforcement official or a person acting

in cooperation with such an official perpetrates an

entrapment if for the purpose of obtaining evidence of

the commission of an offense, he induces or encourages

another person to engage in conduct constituting such

Offense by * * *:

* * *

(b) employing methods of persuasion or in-

ducement which create a substantial risk that

such an Offense will be committed by persons

other than those who are ready to commit it.

This test deals squarely with the problem of this case: the

fact that many attorneys, not out to commit fraud but to

serve their clients diligently, would file a claim if presented

with the tactics used and facts of this case. If that is so,

then the police have not proven that Olkon is more guilty

than other innocent persons. This court should not stand

A-51

by and allow police to use tactics which do not separate

the guilty from the innocent.

The objective test is supported by many of the United

States Supreme Court justices in their various concurring

and dissenting opinions.” The states are clearly free to adopt

a stricter test than the federal rule, and many states have

done so. In addition to the five state courts which had

adopted the objective test noted in Grilli,® another eleven

states have now adopted the objective test by statute.’ The

objective test is also supported by the overwhelming ma-

jority of scholarly writing on the subject.®

I propose that we now adopt this test. Since the tactics

used by the police under the facts of this case created a

substantial risk that innocent persons would have been

5See Sorrels v. United States, 287 U.S. 435, 453 (1932) (Roberts,

Brandeis & Stone, JJ., concurring); Sherman v. United States, 356

U.S. 369, 378 (1958) (Frankfurter, Douglas, Harlan & Brennan,

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

(Douglas & Brennan, JJ., dissenting); id. at 439 (Stewart, Brennan &

Marshall, JJ., casey Hampton v. United States, 425 U.S. 484,

496 (1976) (Brennan, Stewart & Marshall, JJ., dissenting).

®Grossman Vv. State, 457 P.2d 226 (Alaska 1969); People v. Barraza, 23

Cal. 3d 675, 591 P.2d 947, 153 Cal. Rptr. 459 (1979); State v.

Mullen, 216 N.W.2d 375 (Iowa 1974); People v. Turner, 390 Mich. 7,

210 N.W.2d 336 (1973); State v. Sainz, 84 N.M. 259, 501 P.2d 1247

(1972).

TSee Alaska Stat. §11.81.450 (1979); Ark. Stat. Ann. §41-209 (1977);

Colo. Rev. Stat. §18-1-709 (1978); Fla. Stat. Ann. §812.028(4) (West

Supp. 1980); Haw. Rev. Stat. §702-237 (1976); N.J. Stat. Ann.

§2C:2-12 (West 1980 — Pamphlet); N.Y. Penal Law §40.05

(McKinney 1975); N.D. Cent. Code §12.1-05-11 (1976); 18 Pa. Cons.

Stat. Ann. §313 (Purdon 1973); Tex. Penal Code Ann. tit. 2, §8.06

(Vernon 1974); Utah Code Ann. §76-2-303 (1978).

*See, e.g., W. LaFave & A. Scott, Handbook on Criminal Law 371 (1972);

Donnelly, “Judicial Control of Informants, Spies, Stool Pigeons, and

Agent Provocateurs,” 60 Yale L.J. 1091 (1951); Comment, 31 U. Chi.

L. Rev. 137 (1963). Other articles favoring the objective test are

cited in Park, “The Entrapment Controversy,” 60 Minn. L. Rev. 163,

167 n. 13 (1976).

Only two law review articles in the last 25 years have favored the

subjective test, one of which favored abolishing the entrapment defense

entirely. Y. Kamisar, W. LaFave and J. Israel, Modern Criminal

Procedure 135 (4th ed.) (Supp. 1979).

A-52

trapped, I would hold that the defendant has made out

the defense in this case.

One of the vices of entrapment is that the police must

themselves break the law to catch supposed criminals. The

illegalities in this case include issuing a false driver’s license,

issuing a false welfare card, writing a phony accident report,

issuing a phony receipt for a copy of the report, and writing

a false auto repair bill. We know from United States v Nixon,

418 U.S. 683 (1974), that even the President of the United

States is not above the law. Where is the authority in the

Constitutions of the United States or the State of Minnesota

or by statute which permits the police in this state to break

the law in order to enforce the law? There is the ancient

common law rule of fresh pursuit of a law-breaker, but that

is inapplicable to this case. We are not a police state yet.

Entrapment is not even a necessary technique as to this

kind of crime. Doctors, lawyers and insurance companies

all keep thorough records on cases. If the police had reason

to suspect Coifman or Olkon, they could have used their

investigatory skills and powers to find and solve any crimes

which had been committed rather than creating new crimes

and committing crimes themselves in the process.

The Illinois Supreme Court in Horwitz stated:

For the lawyer in active practice real temptations

are plentiful and sufficient without their artificial mul-

tiplication by private parties whose real motives can

with certainty be known only to themselves. The law-

yer must deal with exaggerations, fraud, and actual

perjury day after day, and occasionally these things

come from his own clients without his knowledge or

consent. His path is hazardous at best, and if he can

A-53

so far avoid its natural pitfalls as to maintain and be

able to prove a good reputation, it should be sufficient

to protect him against plots and schemes.

360 Ill. 313, 196 N.E. at 214. Therefore, even if the federal

courts would allow this form of entrapment under the United

States Constitution, I would hold the procedure herein used

as violative of our Minnesota Constitution. ]

Finally, there was evidence submitted to the trial judge

that antiSemitic remarks were made during jury delibera-

tions. Rule 26.03, subd. 19(6), of the Rules of Criminal]

Procedure states that if there is a question about extraneous

matters affecting the verdict, “the jurors shall be interro-

gated.” This court has never said whether this rule requires

all jurors to be questioned and therefore the trial court

was within its rights in questioning only a part of the jury.

However, I would think that we ought to interpret the rule

to provide that where religious or racial discrimination may

have affected the deliberations, all jurors that are available

ought to be questioned, particularly in a criminal case.

For all of these reasons, I would reverse the conviction.

WAHL, Justice (dissenting).

I join in the dissent of Mr. Justice Yetka.

A-54

STATE OF MINNESOTA

Office of Clerk of Supreme Court

ST. PAUL, MINN.

September 29, 1980

State of Minnesota,

Respondent,

vs. 50966

Ellis Olkon,

Appellant.

SIR:

You will please take notice that on this date the following

order was entered in the above entitled cause:

ORDERED, that the petition for reargument herein be

and the same hereby is denied and stay vacated.

Yours respectfully,

John McCarthy

Clerk Supreme Court

A-55

THE DISTRICT COURT FOR THE

FOURTH JUDICIAL DISTRICT

County of Hennepin and State of Minnesota

THE STATE OF MINNESOTA,

Plaintiff,

vs.

ELLIS OLKON

Defendant.

(Caption)

ORDER AFTER OMNIBUS HEARING

The above-entitled matter came regularly on for hearing

before the undersigned on August 8, 1979 on defendant's

demand under MRCrimP 8.03 for a hearing as provided by

MRCrimP 11.02 on the admissibility at trial of evidence as-

serted to be in the hands of the prosecution as set forth in

notification given to defendant pursuant of MRCrimP 7.01.

Daniel Bryne, Esq., Assistant Hennepin County Attor-

ney, appeared for and on behalf of plaintiff, and Theodore

Collins, Esq., appeared for and on behalf of defendant who

also appeared personally.

Prior to the commencement of the hearing de‘endant

moved that so much of Count I and Count II of the Indict-

ment herein which is dated April 3, 1979 and which reads

“or with Walter Powers, also known as Eugene Bowers and

others” be deleted and stricken from said Indictment and

that so much of Count III and Count IV of said Indictment

which reads “or others” be stricken and deleted from such

A-56

counts. The State did not oppose and the Court, on the

record, orally granted such motion.

Prior to said hearing the defendant served and filed a

“Notice of Additional Defense” wherein he notified the

plaintiff that he will “rely upon the defense of entrapment

in the event any crime was committed in connection with

the facts giving rise to the above proceeding, said defense

to be in addition to the defense of not guilty already as-

serted by the defendant herein” and requested trial of the

defense of entrapment by the Court, without a jury, as out-

lined in State v. Grilli, 304 Minn. 80, 95, 230 N.W.2d 445

(1975), and defendant executed a jury waiver on the issue

of entrapment which, after approval by the Court, was

duly filed herein.

It was agreed by and between counsel that so far as

evidence presented at the hearing on the admissibility of

evidence was material to the defense of entrapment, the

Court should consider such evidence and that such other

and further evidence as the defendant wished to present

on the defense of entrapment would be presented at the

same hearing.

The hearing commenced on August 8, 1979 and con-

tinued through August 9 and 10, on which latter date, both

sides having rested, counsel made their respective summa-

tions to the Court and the Court took the matter under

advisement.

Upon all the files, records and proceedings herein, and

upon the evidence adduced and the arguments of counsel,

the Court finds:

1. Evidence against the defendant seized pursuant to a

search warrant was lawfully obtained.

A-57

2. Evidence against the defendant procured through

electronic or mechanical eavesdropping was lawfully pro-

cured.

3. That the defendant was not entrapped into the

commission of any offense.

Now, therefore, upon the foregoing Findings of fact, IT

IS HEREBY ORDERED:

1. That defendant’s defense of entrapment be, and

hereby is, denied and dismissed.

2. That the evidence seized pursuant to a search is

admissible.

3. That the evidence obtained by electronic or mechan-

ical eavesdropping is admissible. -

4. That defendant’s motion to suppress the evidence

referred to in paragraphs two and three of this order be,

and hereby is, denied.

5. That a memorandum in support of the within Find-

ings and Order which will be filed at a later date be made

a part hereof upon such filing.

Dated: August 16, 1979.

By the Court:

DOUGLAS K. AMDAHL

Judge of District Court.

biG A-58

(Caption)

MEMORANDUM

This memorandum, although being filed subsequent to

the filing of a document entitled, “Order After Omnibus

Hearing” is to be made a part of such order.

Dated: August 16, 1979.

DOUGLAS K. AMDAHL

Judge of District Court

MEMORANDUM

The prosecution, pursuant to MRCrimP 7.01 advised

the defendant that it had: ,

1. Evidence obtained as a result of a search, search

and seizure, wiretaping, and other forms of electronic and

mechanical eavesdropping.

2. Confessions, admissions or statements in the nature

of confessions made by the defendant.

3. Evidence discovered as a result of confessions, ad-

missions or statements in the nature of confessions made

by the defendant.

And that identification procedures used during the inves-

tigation were: Observations of the defendant.

The defendant by a “Motion for Suppression of Evi

dence” has demanded a hearing as to the admissibility at

trial of any of the evidence specified in the prosecution’s

notice. ia

The motion to suppress is based on constitutional

grounds, i.e., did the state violate defendant’s constitu-

A-59

tional rights in the obtaining of the evidence it refers to

in its Rule 7.01 notice?

The evidence sought to be suppressed includes evidence

seized (defendant’s office file relating to claims and settle-

ment thereof, made by defendant on behalf of an under-

cover officer, to two insurance carriers) pursuant to a

search warrant authorized by a judge of this court and con-

versations between defendant and the undercover officer

and recorded either by use of a concealed microphone on

the person of the officer or by recording from telephone

conversations.

The validity of the search warrant primarily depends

upon the contents of the application for such warrant. The

application extensively recites portions of the recorded

conversations. If the conversations are suppressed, such

recited conversations may not properly form a part of the

application and the application, without such recited con-

versations, is insufficient as a basis for the issuance of

the search warrant. The application for the warrant is a

sufficient basis for the issuance for the warrant if such

conversations remain a part of the application. It is thus

clear that if the conversations are suppressed, the search

warrant is invalid and any evidence seized under it must

be suppressed. By the same analogy, if the conversations

are not suppressed the search warrant is valid and the

evidence seized pursuant to its authority is properly

admissible.

Some background is necessary to put the defendant’s

claims in perspective. The testimony of Sgt. Powers is that

law enforcement officers were engaged in an investigation

- of an alleged insurance fraud. Sgt. Powers, an undercover

A-60

officer, at some time before such investigation commenced,

established an identity as Eugene Bowers and had obtained

false identification documents including a Minnesota driver’s

licence and an auto title certificate in that name and had

arranged an intercept by the postoffice for mail addressed

to him at the address as shown on the false documents and

had a telephone in the Sheriff’s office where calls to him

were answered in a way so as to maintain the false identifi-

cation. After the investigation had commenced, Powers ar-

ranged, with the help of law enforcement personnel of the

city of Edina, for the preparation and execution of a motor

vehicle accident report of an accident which had never

occurred. The report recited that Powers and a female

companion in Powers’ automobile were rear-ended by an

auto operated by one Barnes (who was an actual person

Owning an automobile fitting the description of the auto

in the accident report and who was a part of the scheme)

under circumstances where liability of Barnes was not validly

disputable. Powers also obtained, with the help of Hennepin

County Welfare Department personnel, a Welfare De-

partment identification card showing him to be qualified

for welfare assistance. Powers then went to a doctor who was

the subject of the insurance fraud investigation and informed

him that he had been in an accident and neither he nor his

passenger had been injured but that the other party, who

was responsible for the accident, had insisted that Powers

and his passenger have a medical examination. Powers

asserts that the doctor asked Powers how he wanted to

have been hurt and that he would put down whatever

Powers wanted to tell him. When Powers told the doctor

that he had not in fact been hurt, the doctor told him not

to tell the doctor that. On a later visit to the doctor’s office

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a person identified as the doctor’s office manager was also

informed by Powers that Powers had not been injured.

However, the office manager referred Powers to a lawyer

for the purpose of making claims against the insurers of

Mr. Barnes and of Powers. The attorney to whom Powers

was referred was an attorney who Powers believed would

recognize Powers and would know that he was an investiga-

tor. Powers therefore informed the office manager that he

would like to be referred to a different lawyer, and the office

manager referred him to the defendant here.

Sgt. Powers, with a female deputy sheriff, reported to de-

fendant’s office. There Powers introduced himself as Eugene

Bowers and furnished defendant’s secretary a copy of the

fabricated accident report. At that same time Powers gave

the name of State Farm Insurance Company as his insurer

and gave defendant the number of the automobile insurance

policy. He also provided the defendant with the name of

Travelers Insurance Company as the insurer of the other

driver in the supposed accident and gave the policy number.

The conversation between the female deputy sheriff, Powers

and the defendant on that occasion was recorded on tape

through a microphone concealed on Powers’ body. Other

conversations between Powers and defendant both in person

and by telephone were also recorded.

Powers asserts that he informed defendant that he,

Powers, had not in fact been injured in the accident but that

defendant, despite such information, accepted Powers as a

client with personal injury and proceeded to make claims

against the insurers and eventually settled the claims for

several thousand dollars out of which defendant took a fee.

In his negotiation for settlement defendant was aided by

A-62

a report of hospitalization of Powers under the alias of

Bowers at Metropolitan Medical Center (which hospitaliza-

tion itself was actual but the symptoms and disability leading

to the hospitalization were feigned) and that record included

a report of an examination by Dr. Joseph Engel who was not

the doctor referring the case to Mr. Olkon nor the doctor

under investigation. Additionally, the defendant had a medi-

cal report from the doctor who was under investigation and

a bogus repair bill reciting repairs to the Bowers’ automobile.

The latter was provided by Powers under his assumed iden-

tity as Bowers.

The Eighth Circuit Court of Appeals observations in U.S.

v. McMillan, 508 F.2d 101, 104 (1974), Certiorari Denied,

substantially disposes of the defendant’s Fourth Amendment

ground for suppression in this language:

“It is now well settled that a defendant’s Fourth Amend-

ment rights are not violated when the defendant’s con-

versations with a government informant are electroni-

cally monitored by a government agent with the con-

sent of the informant. E.g., United States v. White,

401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971)

(opinion of White, J., in which the Chief Justice and

Stewart and Blackmun, JJ. concurred); United States

v. Bonanno, 487 F.2d 654 (2d Cir. 1973); United

States v. Bishton, 150 U.S. App. D.C. 51, 463 F.2d

887 (1972); United States v. Quintana, 457 F.2d 874

(10th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 128,

34 L.Ed.2d 130 (1972); United States v. Holmes, 452

F.2d 249 (7th Cir. 1971), cert. denied, 405 US.

1016, 92 S.Ct. 1291, 31 L.Ed.2d 479, 407 U.S. 909,

92 S.Ct. 2433, 32 L.Ed.2d 683 (1972); cf. United

A-63

States v. Skillman, 442 F.2d 542 (8th Cir.), cert.

denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63

(1971).”

The mere fact that an undercover agent used deception

and forged identification and other documents t& bring an

opportunity before the defendant is not a sufficient founda-

tion on which to base a claim of denial of due process.

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637,

36 L.Ed.2d 366 (1973) the Court considered an under-

cover agent who supplied a necessary ingredient for the

manufacture of an illegal drug to persons engaged in such

manufacture: The observations there made are relevent

here:

“While we may some day be presented with a situation

in which the conduct of taw enforcement agents is so

outrageous *hat due process principles would abso-

lutely bar the government from involving judicial pro-

cesses to obtain a conviction, cf Rochin v. California,

342 U.S. 165 (1952), the instant case is distinctly not

of that breed. * * * The law enforcement conduct here

stops far short of violating that ‘fundamental fairness,

shocking to the universal sense of justice,’ mandated

by the Due Process Clause of the Fifth Amendment.

Kinsella v. United States ex rel. Singleton, 361 U.S.

234, 246 (1960).

“The illicit manufacture of drugs is not a sporadic,

isolated criminal incident, but a continuing, though

illegal, business enterprise. In order to obtain con-

victions for illegally manufacturing drugs, the gather-

ing of evidence of past unlawful conduct frequently

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proves to be an all but impossible task. Thus in

drug-related offenses law enforcement personnel

have turned to one of the only practicable means

of detection: the infiltration of drug rings and a

limited participation in their unlawful present prac-

tices. Such infiltration is a recognized and permis-

sible means of investigation; if that be so, then the

supply of some item of value that the drug ring

requires must, as a general rule, also be permissible.

For an agent will not be taken into the confidence

of the illegal entrepreneurs unless he has something

of value to offer them. Law enforcement tactics

such as this can hardly be said to violate ‘funda-

mental fairness’ or ‘shocking to the universal sense

of justice,’ Kinsella, supra.”

So it is here, the use of deception and deceit was made

necessary by the nature of the conduct being investigated.

The conduct of the undercover officer was neither unrea-

sonable nor extreme, nor did it violate the Fifth Amend-

ment of our Constitution.

Since the Court finds that the conversations between

defendant and the undercover agent were not carried out

in violation of defendant’s constitutional rights, such con-

versations are admissible and the defendant’s motion to

suppress them is denied. Furthermore, since the conver-

sations are admissible evidence, the evidence seized under

the authority of the search warrant which is based upon

the validity of such conversations is also admissible.

For the foregoing reasons the Court has made its order

denying defendant’s motions to suppress the evidence

herein.

A 65

Defendant claims that if a crime was committed, that

he was entrapped into the commission, and that such

entrapment is a bar to further prosecution of the charges

here.

The leading United States Supreme Court decisions on

the defense of entrapment are Sorrells v. United States,

287 U.S. 435, 53 S.Ct. 210, 77 L.ed. 413 (1932);

Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819,

2 L.ed.2d 848 (1958); and United States v. Russell

(supra).

The leading Minnesota cases on the defense of entrap-

ment are State v. Poague, 245 Minn. 438, 72 N.W.2d

620 (1955) and State v. Grilli, 304 Minn. 88, 230

N.W.2d 445 (1975).

In Sorrells the United States prohibition agent accom-

panied by three residents of the county who knew the de-

fendant well visited the defendant’s home. He was intro-

duced as a visitor to the area and led the conversation to

the World War and the fact that the agent and defendant

were former soldiers in the same expeditionary force di-

vision. The agent asked defendant if he could get the

agent some liquor. Defendant stated that he did not have

any. The agent, after further conversation, again asked

with the same reply from the defendant. After further

wartime experiences had been discussed, the agent asked

defendant for a third time to get him some liquor; where-

upon defendant left his home and after a few minutes

came back with a half gallon of liquor for which the

agent paid defendant $5. The agent testified that he was

“the first and only person among those present at the

time who said anything about securing some liquor.”

A-66

Chief Justice Hughes found that the defendant had

been entrapped, writing:

“It is clear that the evidence was sufficient to war-

rant a finding that the act for which defendant was

prosecuted was instigated by the prohibition agent,

that it was the creature of his purpose, that defend-

ant had no previous disposition to commit it but

was an industrious, law-abiding citizen, and that the

agent lured defendant, otherwise innocent, to its

commission by repeated and persistent solicitation in

which he succeeded by taking advantage of the

sentiment aroused by reminiscences of their experi-

ences as companions in arms in the World War.

Such a gross abuse of authority given for the pur-

pose of detecting and punishing crime, and not for

the making of criminals, deserves the severest con-

demnation, but the question whether it precludes

prosecution or affords a ground of defense, and, if

so, upon what theory, has given rise to conflicting

opinions.

“It is well settled that the fact that officers or em-

ployees of the Government merely afford opportuni-

ties or facilities for the commission of the offense

does not defeat the prosecution. Artifice and strata-

gem may be employed to catch those engaged in

criminal enterprises. (Citing cases) The appropri-

ate object of this permitted activity, frequently es-

sential to the enforcement of the law, is to reveal

the criminal design; to expose the illicit traffic, the

prohibited publication, the fraudulent use of the

mails, the illegal conspiracy, or other Offenses, and

A-67

thus to disclose the would-be violators of the law.

A different question is presented when the criminal

design originates with the officials of the Govern-

ment and they implant in the mind of an innocent

person the disposition to commit the alleged offense

and induce its commiss

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