Petition — Hullum v. United States

Suprenne Court, U.S.

80-1009 ee

SEC 20 1980

No.

Sos

worry tc NYUAR, IR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

WILLIAM LAWRENCE LENTZ am

we a ee ee ee eee ee 8 See ee eee ek See ae ee

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

On Wrieof Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

CHARLES O. GRIGSON

305 Stewart Title Bldg.

812 San Antonio

Austin, Texas 78701

512/477-5791

ATTORNEY OF RECORD

FOR PETITIONER

WILLIAM LAWRENCE LENTZ

QUESTIONS PRESENTED FOR REVIEW

1. Whether a phone number with an area code and

“Continental” constitute sufficient evidence to prove

beyond a reasonable doubt that a wire communication

is furnished by a person engaged as acommon carrier in

providing facilities for transmission of interstate com-

munications?

2. Whether undisputed evidence that a private cit-

izen had never heard of the scheme to wiretap until he

was asked to participate by law enforcement officers

constitutes entrapment as a matter of law when the

only evidence to show predisposition is the private cit-

izen’s conduct after he was induced to participate?

3. Whether the conduct of three law enforcement

officers, who designed a scheme to wiretap and then in-

duced a private citizen to participate in the scheme, is so

outrageous that to allow the private citizen to be con-

victed would deny him due process of law?

4. Whether Sandstrom v. Montana, 442 U.S. 510

(1979) has changed the law regarding jury instruc-

tions on intent as stated in United States v. Chiantese, 500

F.2d 1244 (Sth Cir. 1977)?

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ................. i

PN MEG 064 Ns bis 's sso bk k ohn base bo iii

III 25. 6. s.s's 0s da.duibin dalalnu 40céd iii

TE a TREES a a ER 2

ERR EI 7 (1 SO a aE OE a 2

Constitutional Provisions and

WN os obs. Sid Sodebehanes cis 2

eR id cn diebiw'cha cn os 4% eae's 4

Reasons for Granting the Writ .................. 7

IES, RE ADA Ne aS 29

ID CONN ss, sae divs 0.00.0 vadlne Ss 30

Appendix

A. Opinion of the Court Below ............ la

B. Order of the Court Below on Petition

for Rehearing and RehearingEn Banc ... 25a

TABLE OF AUTHORITIES

Cases:

Betts v. Brady, 316 U.S. 455, 473 (1942) ........... 23

Glasser v. United States, 315 U.S. 60 (1942) ...... 12,19

Greene v. United States, 454 F.2d 783 (9th Cir.

DE aed ad hkbin ds de dbs bbe Seek Ue PRG L bic wk 23

i PREVIOUS PAGE WAS

A PE een

- LANK |

+ ee te ce

i

iv

TABLE OF AUTHORITIES (Continued)

Page

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

PEE Sc.cXcaclobt> Gharbi asc saan 14,15,18,22,27

Henderson v. United States, 261 F.2d 909, 912 (Sth

eh ok 5 oy eee ere ce Ce aah d 17,18

Mapp v. Ohio, 367 U.S. 643 (1961) ...........00- 23

Miranda v. Arizona, 384 U.S. 436 (1966) .......... 23

Rochin v. California, 342 U.S. 165 ToT sos paws 25-27

Sandstrom v. Montana, 442 U.S. 510 (1979) ....i,28,29

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

DU Glas ce oie RA oe ck saa gine 15,16,18,22

Sorrells v. United States, 287 U.S. 435, 442

I a ate ae a a er 13,15-17,21,22

Tyler v. Phelps, 622 F.2d 172 (Sth Cir. 1980) ...... 28

Tzimopoulos v. United States, 554 F.2d 1216 (1st

ON Ne ie aie ae ee ae eT 17

United States v. Archer, 486 F.2d 670 (2d Cir.

eh ie a ee No ee aa 23

United States v. Barrera, 547 F.2d 1250, 1255 (Sth

Ag ESE A ee ee eae 12,19,21

United States v. Barresi, 601 F.2d 193, 195 (Sth

Oe Ec yoink 226d sabe bs 6 htceariekcbe 21

United States v. Blattel, 340 F.Supp. 1140 (N.D.

SUED Sia esaGe vane DOE sb de kevesuea tees 9,11

v

TABLE OF AUTHORITIES (Continued)

Page

United States v. Bueno, 447 F.2d 903 (Sth Cir.

RTE sce S EE ORE R00 hv Ch a ok Labs cs 14

United States v. Burroughs, 564 F.2d 1111 (4th Cir

a: RRR Re EaSe SOE Cah tein GaN OR <i A a 9

United States v. Bycer, 593 F.2d 549, 550 (3d Cir

RIEL ES De ieee heres, JU AMAR Cr a 10

United States v. Chiantese, 560 F.2d 1244 (Sth Cir

DN ao Phi danas aw Maeda ka WOE ek a wc kk i,29

United States v. Gandolfo, 577 F.2d 955 (Sth Cir

EEE Geko ik se oe cd Lacs ORE akc cke as 12,24

United States v. Haggins, 545 F.2d 1009 (Sth

AD PURE er Padthetonan oooh eas Se ge 12

United States v. Jones, 580 F.2d 219 (6th Cir

SOE Kade. bie abd « Gs amass OE ks 9-11

United States v. Marable, 574 F.2d 224 (Sth Cir

BR oth 6. cvdie eas ecco wee asc. 12

United States v. Perl, 584 F.2d 1316, 1321n.3(4th

I a Ba 14

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

AEDS SEEPS aa AA eR Rare 15,18,22,23

United States v. Schilleci, 545 F.2d 519 (Sth Cir.

OE 5 CN SESE s b keer hil erences © cua wn 28

United States v. Schweih, 569 F.2d 965 (Sth Cir.

PR Aa iis bv beh ae 6 bebe wc code a ene 28

vi

TABLE OF AUTHORITIES (Continued)

United States v. Shaw, 570 F.2d 770 (8th Cir.

EN OEE RS: ee AS eS a On 17

United States v. Till, 609 F.2d 228 (5th Cir. 1980) .... 23

United States v. Twigg, 588 F.2d 373 (3d Cir.

ERS IE». SR Ae Sd ee lar a a 23

United States v. White, 569 F.2d 263, 268 (Sth Cir

ECG Ceo cabs hub 5 cntas anv eve aceeds 9

United States v. Wolffs, 594 F.2d 77, 80 (Sth Cir

i Gos Do cnicp yesh cdlesesctesenue ee 21

Weeks v. United States, 232 U.S. 383 (1914) ........ 23

Williamson v. United States, 311 F.2d 441 (Sth Cir.

SL ena cUha db uandas + oeondeccoesaes cand 17

Statutes:

EID Civadccsscncccscccesccendecencsbe 4

LED ok cin es scccccccccccccssines 2,3,7

DP Es UEROD <6 cc ccccdscccccccccesscet 2,3,8

a eee 2,3,4,7,12

Ss MULE ccc ccccdescccctccncsccs aden 2

i SEE wt avcecesvccceuocesvevavecgeni 8

Rules:

feu. R. EVID. 201(B), (6), (g) ....0. 000000. 3,4,10,13

RULES OF THE SUPREME COURT OF

EEE OP IRE occ cccesdccsenctcctuace 2

Vii

TABLE OF AUTHORITIES (Continued)

Miscellaneous:

Random House Dictionary of the English Language

United States Constitution, Fifth Amendment ....2

Webster's Third New International Dictionary of the

English Language

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

WILLIAM LAWRENCE LENTZ AND

RAYMOND CLINTON HULLUM, JR.,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

Petitioner, WILLIAM LAWRENCE LENTZ, respect-

fully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Fifth Circuit, entered on August 25,

1980.

2

OPINION BELOW

The opinion of the Court of Appeals may be report-

ed at ___ F.2d Acopy of the slip opinion is attach-

ed as Appendix A. It is not known whether the opinion

has been reported at this time.

JURISDICTION

The judgment and opinion of the Court of Appeals in

this case were entered on August 25, 1980. (See Appen-

dix A). The Petitioner filed a Petition for Rehearing and

for Rehearing En Banc, which was denied by the Court

of Appeals on November 3, 1980. A copy of the order

denying the Petition for Rehearing and for Rehearing

En Banc is attached as Appendix B. This Court has

jurisdiction pursuant to 28 U.S.C. §1254(1) and pursu-

ant to Rules 17 and 19 of the Rules of the Supreme

Court of the United States.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The Fifth Amendment, United States Constitu-

tion:

No person shall . . . be deprived of life, liberty, or

property, without due process of law . . .

2. Wire Interception and Interception of Oral Com-

munications, 18 U.S.C. §§2510(1), (10) and

2511(1)(a):

3

§2510(1) “wire communication” means any com-

munication made in whole or in part through the use of

facilities for the transmission of communications by

the aid of wire . . . between the point of origin and the

point of reception furnished or operated by any person

engaged as acommon carrier in providing or operating

such facilities for the transmission of interstate or for-

eign communications;

§2510(10) “communication common carrier” shall

have the same meaning which is given the term “com-

mon carrier” by section 153(h) of title 47 of the United

States Code;

§2511(1)(a) ... any person who — willfully .. .

endeavors to intercept ... any wire... communica-

tion .. . shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

3. Federal Rules of Evidence, Rule 201(b), (f), (g):

(b) Kinds of facts. A judicially noticed fact must

be one not subject to reasonable dispute in that it is

either (1) generally known within the territorial juris-

diction of the trial court or (2) capable of accurate and

ready determination by resort to sources whose accur-

acy cannot reasonably be questioned.

(f) Time of taking notice. Judicial notice may be

taken at any stage of the proceedings.

4

(g) Instructing jury. ... In a criminal case, the

court shall instruct the jury that it may, but is not re-

quired to, accept as conclusive any fact judicially

noticed.

STATEMENT OF THE CASE

Petitioner William Lawrence Lentz [hereinafter re-

ferred to as Lentz] was initially charged along with a

sheriff and a deputy sheriff with endeavoring to il-

legally intercept a wire communication and with con-

spiracy to endeavor to illegally intercept a wire com-

munication in violation of 18 U.S.C. §2511(1)(a) and 18

U.S.C. §371. Ajury found Lentz guilty of three counts

in the indictment, after the trial court had granted

Lentz’s motion for judgment of acquittal as to Count

Four in the indictment. At sentencing the Govern-

ment elected to proceed only on Counts One and Three

in the indictment against Lentz. On July 31, 1979,

Lentz was sentenced to one year imprisonment, but

was ordered to be released as if on parole after serving

six months of the sentence. Lentz timely appealed from

the District Court’s Judgment, and his conviction was

affirmed by a panel of the Court of Appeals for the

Fifth Circuit on August 25, 1980. Lentz’s request for a

rehearing by the panel or rehearing en banc was denied

by the Court of Appeals on November 3, 1980.

At the time all the acts alleged in the indictment oc-

curred, Lentz was a private citizen, residing in Burnet

County, Texas. (R. 185, 209). On March 9, 1979, he

5

was approached by three law enforcement officers, (R.

199, 201, 209, 211) two of whom he knew and trusted,

and was asked to assist in wiretapping a phone. (R. 184,

189, 193, 194). In being asked to participate in a wire-

tap scheme, Lentz was told lies by these men about the

existence of a large scale drug smuggling operation at

the home of Patricia Maddox in Burnet County, Texas.

(R. 184, 189, 224, 500, 535).

The three men who approached Lentz were the

Sheriff of Burnet County, R. C. Hullum, the Chief

Deputy Sheriff of Burnet County, Jack Hall, and a

member of the Greater Austin Area Organized Crime

Unit [hereinafter referred to as OCU], William Fargo.

(R. 184, 191, 197). These three men knew that Lentz

had previously been willing to assist law enforcement

officials when he was asked to do so, and further that

approximately two weeks prior to March 9, 1979, Lentz

had assisted the OCU and United States Secret Serv-

ice in developing a case in a $100,000.00 counterfeit-

ing operation. (R. 144, 187, 293, 574, 644, 713, 706,

934).

The undisputed evidence indicated that Lentz had

never heard of any scheme to wiretap the phone of

Patricia Maddox until he was asked for assistance by

Hullum, Hall and Fargo. (R. 364, 529, 537, 935). Itis un-

disputed that at the time Lentz was asked to partici-

pate, Hullum, Hall and Fargo were acting in their offi-

cial capacity as law enforcement officers. (R. 209, 212,

6

338, 339). It is undisputed that when Lentz was ap-

proached, the scheme to attempt tointercept wire com-

munications had already been created and had origi-

nated from either Hall or Hullum on or before March 8,

1979. (R. 213, 260, 364, 529, 566, 581). It is further un-

disputed that Lentz would not have participated in the

scheme unless he had been asked by Hullum. (R. 853,

884, 939, 940).

Lentz was convicted by a jury, and his conviction has

been affirmed even though the Court of Appeals in its

opinion “question[ed] the wisdom of the prosecutor’s de-

cision to bring charges against Lentz”. Lentz was re-

quired to be tried at the same trial as one of the law

enforcement officers who requested his assistance, and

the Government repeatedly referred to “burglaries”

throughout the trial and in its arguments, although

there was no evidence of such an offense. Further,

Lentz has been convicted after the Government was

allowed to go to trial on a four count indictment, when

two counts were patently frivolous. Nevertheless, the

Court of Appeals has allowed the conviction to stand,

in spite of its questioning the Government's wisdom of

proceeding against Lentz; inspite of its opinion that the

Government's proof of an essential element of the

offense was “thin” and“skimpy”; and in spite of the rec-

ord indicating Lentz’s only motive for his participation

in the events leading to his arrest was to help law

enforcement in Burnet County. (R. 184, 230, 231, 750,

766, 936, 937).

7

mee 5

r,

I. The Court Of Appeals For The Fifth Circuit Has

Rendered A Decision In Conflict With The Court

Of Appeals For The Sixth Circuit.

Lentz was convicted for endeavoring to intercept

wire communications made and sent by persons call-

ing toand from a telephone at the residence of Patricia

Maddox just outside the town of Burnet, Texas. The

conviction of Lentz was affirmed by the Court of

Appeals for the Fifth Circuit, but in reviewing the same

legal issue regarding “common carrier” the Court of

Appeals for the Sixth Circuit had previously rendered a

decision which conflicts with the decision of the Fifth

Circuit in this case. The charges involve a violation of

18 U.S.C. §2511(1)(a).

To fall within the proscription of the statute in this

case the wire communication must be one that is

furnished or operated by any person

engaged as a common carrier in providing or

operating such facilities for the transmission

of interstate or foreign commerce |

18 U.S.C. §2510(1). In the week 'ong trial of this case

there were only two references of any nature regard-

ing the status of the wire communication that the law

enforcement officers and Lentz attempted to inter-

8

cept. Once during a tape recorded conversation that

was admitted in evidence, Hall mentioned that the

phone system in the area was “. . . Continental; one

step below General.” (Govt. Ex. 30B). The only other

testimony was from a witness who gave her phone

number with an area code and testified that she was on

the same party line as the phone which was supposed to

have been tapped. (R. 633, 634). This evidence, which

the Court of Appeals called “thin”, was the Govern-

ment’s entire amount of proof in over 1000 pages of

testimony about an essential element which the

Government supposedly had the burden to prove be-

yond a reasonable doubt. The Government made no

attempt whatsoever during its case to prove that the

wire communication in question was furnished by a

common carrier, as defined by 18 U.S.C. §2510(10) and

47 U.S.C. §153(h). That a witness had a phone number

with an area code was not “proved” by the Govern-

ment. It was a mere accident that Lillian Wall in an un-

responsive answer to a Government question stated

that her phone number included an areacode.! (R. 633).

The same is true about the conversation between Hall

and Fargo in which “Continental” was mentioned as

the phone system in Burnet County, Texas.

In a criminal case

[i]t is a cardinal rule that no person should

be subjected to punishment unless the evi-

1 Q. And, do you have a telephone ma’am?

A. Yes. Area Code 512-756-4028.

9

dence shows beyond a reasonable doubt the

existence of every fact necessary to constitute

the crime charged.

United States v. White, 569 F.2d 263, 268 (Sth Cir. 1978),

cert. denied, U.S. _— (1979). The Fifth Circuit in

this case totally ignored the lengthy and well reasoned

discussion of the necessity and method of showing the

common carrier status of a wire communication in a

case in the Sixth Circuit involving the same statute.

United States v. Jones, 580 F.2d 219 (6th Cir. 1978). See

also United States v. Blattel, 340 F.Supp. 1140 (N.D. Iowa

1972). Cf. United States v. Burroughs, 564 F.2d 1111 (4th

Cir. 1977). The only thing the panel mentioned about

two of these cases was the length of time it took the

Government to request that judicial notice be taken of

the common carrier status of the phone companies in

question.

In Jones, these was proof that the phone in question

was furnished by South Central Bell Telephone Com-

pany, and this evidence was held insufficient to prove

that South Central Bell was a common carrier provid-

ing facilities for the transmission of interstate com-

munications. There as here the Government argued

that Bell’s status could be inferred as a “fact within the

common knowledge of the jury.” Id. at 222. The Court

held that Bell’s status as a“ common carrier . . . provid-

ing . . . facilities for the transmission of interstate. . .

communication” is a fact which, if to be established

10

without direct or circumstantial proof, must be

governed by the judicial notice provisions of the Fed-

eral Rules of Evidence. Id. at 222, 223.

Here the Government made no effort through direct

or circumstantial evidence to show the common car-

rier status, if any, of “Continental” before resting its

case. Only after the Government rested and Lentz

moved for a judgment of acquittal did the Govern-

ment request that the trial court take judicial notice

“that a telephone communication is an interstate — it’s

a device capable of carrying interstate communica-

tions”. (R. 795). The court took judicial notice of noth-

ing in the record. If judicial notice can somehow be

taken implicitly, it was not done here in accordance

with Rule 201(g) of the Federal Rules of Evidence. Unit-

ed States v. Jones, supra at 223, 224.

If Continental was a common carrier, the Govern-

ment should have been required to prove it by direct

evidence.

Inferences from established facts are ac-

cepted methods of proof when no direct evi-

dence is available. It is essential, however, that

there be a logical and convincing connection

between the facts established and the conclu-

sion inferred.

United States v. Bycer, 593 F.2d 549, 550 (3d Cir. 1979).

The only “proof” in the Government's case against

ll

Lentz about Continental is that it is one step below

General. The“ proof” alsoshows that the phone system

in Burnet County is a little more obsolete than the

phone system in Austin. There is no evidence that the

phone belonging to Mary Gail Knight which Lentz

attempted to tap was in any way connected to Conti-

nental. There is no evidence that the phone to be tapped

was even in working order, much less capable of an

interstate communication. (R. 612-632). Further-

more, there is no evidence that the phone to be tapped had

an area code. (R. 613-632).

The Fifth Circuit distinguished Jones and Blattel by

stating that

[h]ere the government proved a vital fact:

the number of the telephone at issue included

an area code.

[Emphasis added]. This “vital fact” from which the

panel allowed an inference of an essential element of

the offense to be drawn is simply not correct. Lillian

Wall testified that her phone number included an area

code. Lentz was charged with attempting? to intercept

a wire communication from the home of Patricia Mad-

dox, Mary Gail Knight’s former roommate. Mary Gail

Knight apparently was on the same four-party line as

Lillian Wall, but there is no proof anywhere that either

2 No actual interception of any communication occurred in this

case, other than the Government's interception of Lentz’s oral

conversations. (R. 158, 225, 562).

12

woman was connected to Continental or that Conti-

nental furnished communications in interstate com-

merce.

The Court of Appeals cited United States v. Barrera, 547

F.2d 1250 (5th Cir. 1977) in stating that it was proper

for the jury to determine whether the evidence re-

garding the wire communication was sufficient. More

appropriately, the Court of Appeals should have

quoted Barrera in this regard:

Glasser . .. requires us to examine the evi-

dence in the light most favorable to the

Government in reviewing ajury verdict, but it

does not compel judicial abdication to the find-

ings of the trier of fact.

Id. at 1255. In this case the jury” must have had a reason-

able doubt as to the existence [of one] of the essential

elements of the crime charged,” the common carrier. Id.

at 1255. Lentz’s motion for judgment of acquittal

should have been granted, and his conviction should

have been reversed. See also United States v. Gandolfo, 577

F.2d 955 (5th Cir. 1978); United States v. Haggins, 545 F.2d

1009 (Sth Cir. 1977); United States v. Marable, 574 F.2d

224 (Sth Cir. 1978).

Since the Fifth Circuit and the Sixth Circuit are in

conflict regarding the method of proving the status of a

common carrier in order to sustain a conviction under

18 U.S.C. §2511(1)(a), this Court should grant this

13

petition in order to review this case and to set forth

guidelines for lower courts in cases involving wire

interceptions and in the applicability of Rule 201 of the

Federal Rules of Evidence.

II. The Court Of Appeals Decided A Federal Ques-

tion Regarding Entrapment Contrary To Appli-

cable Decisions Of This Court, Since The Undis-

puted Evidence Should Have Indicated That Lentz

Was Entrapped As A Matter Of Law.

This Court has held that entrapment occurs

when the criminal design originates with

the officials of the government, and they im-

plant in the mind of an innocent person the

disposition to commit the alleged offense and

induce its commission in order that they may

prosecute.

Sorrells v. United States, 287 U.S. 435, 442(1932). This has

been the law of entrapment for approximately 50

years. The Court of Appeals in this case agreed that

“Lentz was induced by government agents to partici-

pate in the wiretapping scheme”, and apparently

agreed that “the entire plan was conceived by law

enforcement officers”. With these two conclusions

alone, the panel should have held that as a matter of law

Lentz was entrapped. Yet the Court of Appeals held

that even if the Government created the crime and in-

14

duced Lentz to participate, Lentz was not entrapped if

the jury found he was a “willing, knowing, voluntary

participant in an illegal scheme. . . .” The Fifth Circuit's

analysis of the law of entrapment is incorrect. Since the

wiretap scheme was created by the law enfo.cement

officials who induced Lentz to participate, the case

should not have been submitted to the jury.

In reversing a conviction in United States v. Bueno, 447

F.2d 903 (Sth Cir. 1971), cert. denied, 411 U.S. 949 (1973),

the Court stated

[t]he facts of this case clearly fit within the

framework of the law in this field. If Defend-

ant is to be believed, the sales of heroin were

made through the creative activity of the

government. The Defendant would not have

had the heroin to sell if it had not been pur-

chased by the Informer . <-.

Id. at 906. Although Bueno may not be applicable to fact

situations involving illegal drug transactions after

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

principles are still sound and are applicable here. Para-

phrasing, if the Government's witnesses are to be be-

lieved, the scheme to wiretap was made through the

creative activity of the government. Lentz would not

3 Government involvement for purpose of entrapment means

“involvement of federal, state, or local law enforcement officials

or their agents.” United States v. Perl, 584 F.2d 1316, 1321 n.3 (4th

Cir. 1978). It is therefore immaterial in analyzing Lentz’s case that

Hullum is acodefendant, especially since the subjective test of pre-

disposition is applied.

15

have had any idea of the scheme, much less the predis-

position to wiretap, if he had not been approached by

the three law enforcement officers.

In analyzing the defense of entrapment, courts rely

primarily on Sorrells v. United States, supra.* In Sorrells, an

undercover prohibition agent, while telling war stories,

asked the defendant several times to obtain illegal

liquor for him. On the third request the defendant ob-

tained a half gallon of liquor for the government agent

and was subsequently prosecuted for violating pro-

hibition laws.

This Court stated, as did the Court of Appeals here,

that if the Government merely affords the oppor-

tunity or facility for the commission of an offense, the

prosecution is not defeated. The Court noted, how-

ever, that

[a] different question is presented when the

criminal design originates with the officials of the

government, and they implant in the mind of an

innocent person the disposition tocommit the

alleged offense and induce its commission in

order that they may prosecute.

Id. at 442 [Emphasis added]. After analyzing the de-

cisions and reasoning of other courts, the Court con-

cluded that entrapment was a valid defense since Con-

4 See Hampton v. United States, supra; United States v. Russell, 411 U.S.

423 (1973); Sherman v. United States, 356 U.S. 369 (1958).

2

16

gress did not intend for the statute prohibiting the sale

of liquor to be abused by the Government by inducing

innocent persons to break the law. The Court alsocon-

cluded that

[t]he predisposition and criminal design of

the defendant are relevant. But the issues

raised and the evidence adduced must be per-

tinent to the controlling question whether the

defendant is a person otherwise innocent

whom the government is seeking to punish

for an alleged offense which is the product of

the creative activity of its own officials.

Id. at 451 [Emphasis added]. Thus, if an illegal scheme is

wholly created by the Government and a defendant is

induced by the Government into participating in the

scheme, the fact that he knowingly or willfully partici-

pated in the scheme does not show that he was not

entrapped.

Just as this Court held in following Sorrells in Sherman

v. United States, supra, this Court should review this case

and should hold from the testimony of the Govern-

ment’s own witnesses that Lentz was entrapped as a

matter of law. In Sherman the defendant was convicted

of selling narcotics to a Government informant. This

Court held that the defendant's conviction should be

reversed despite two prior convictions for sale and pos-

session of narcotics, and despite the fact that the jury

must have concluded that the defendant knowingly

17

and willfully sold the narcotics in question. The Court

relied heavily on Sorrells, and in doing so focused on the

Government's creative activity in the offense and in-

ducement of the defendant by the Government or its

agents.

In this case it is undisputed that before Lentz was ap-

proached regarding the offense in question, the scheme

to wiretap had already been created and designed by

either Hullum or Hall. (R. 213, 260, 364, 529, 566, 569,

581). It is undisputed from the testimony of all the wit-

nesses that Lentz had never heard of the scheme to

wiretap the phone at the residence of Patricia Maddox

until March 9, 1979. (R. 212, 213, 935). It is undisputed

that the three persons who induced Lentz to partici-

pate were Hullum, the Sheriff of Burnet County; Hall,

his Chief Deputy; and Fargo, amember of the OCU. (R.

184, 197). And it is undisputed that Lentz would not have

participated in any of these activities unless he had

been asked to doso by Hullum. (R. 853, 884, 939, 940).

Indeed, Hall even referred to the request by Hullum as

an “order”. (R. 114). These undisputed facts should put

Lentz in the position of a “sub-agent of, and conduit

for, the government's provocator [Hullum or Hall], and

because, acting for the government, he was not guilty

of any offense. . . .” Henderson v. United States, 261 F.2d

909, 912 (Sth Cir. 1958). Cf. Williamson v. United States,

311 F.2d 441 (Sth Cir. 1962). See also Tzimopoulos v. United

States, 554 F.2d 1216 (1st Cir. 1977), cert. denied, 434 U.S.

851 (1977); United States v. Shaw, 570 F.2d 770 (8th Cir.

1978).

18

As in Sherman and Henderson Lentz was entrapped as a

matter of law. Two primary factual distinctions make

this case and the reasons for review and reversal far

stronger than Hampton v. United States, supra and United

States v. Russell, supra where the Supreme Court upheld

the jury’s verdict of guilt. First, and more importantly,

the defendant in Hampton had conceded predisposition,

and there was more than substantial evidence in Russell

that the defendant had previously committed the same

kind of offenses as that for which he was on trial.5 Sec-

ond, Hampton and Russell involved drug-related offenses

where it was necessary that the law enforcement offi-

cers pose as private individuals involved in illicit drug

trafficking. The law enforcement officers that induced

Lentz were not undercover; they were openly and

visibly acting as the Sheriff, the Chief Deputy Sheriff,

and an OCU member. Furthermore, Lentz has never

conceded predisposition, but instead he has strongly

denied it throughout the trial and on appeal.

Assuming these facts somehow were sufficient to go

to the jury, there was wholly insufficient evidence to

prove that Lentz had any predisposition to commit any

acts alleged in the indictment. The Fifth Circuit dis-

agreed and concluded that there was a great deal of evi-

dence from which the jury could have found Lentz’s

5 See Hampton v. United States, supra at 487 n.3; United States v. Rus-

sell, supra at 428, 432, 437.

19

predisposition. Lentz does not deny that all the acts

shown in the transcripts of recorded conversations oc-

curred, nor does he deny his participation in the

attempted wiretap scheme. By his plea of not guilty,

however, he strongly denied that he was predisposed to

participate in the wiretap endeavor, and by this peti-

tion he strongly urges that the evidence was patently

insufficient to show beyond a reasonable doubt that he

was predisposed.

Although Glasser v. United States, 315 U.S. 60 (1942) re-

quires this Court to examine the evidence in the light

most favorable to the Government, “it does not compel

judicial abdication to the findings of the trier of fact.”

United States v. Barrera, 547 F.2d 1250, 1255 (Sth Cir.

1977). All the acts or events relied on by the Court of

Appeals to show Lentz’s predisposition are acts which

took place after the wiretap plan was created by the law

enforcement officials and after Lentz had been induced

to participate in the attempted wiretap. The evidence

shows that Lentz knowingly and willfully participated

in an illegal attempt to wiretap a phone, but it totally

6 The panel pointed to Lentz’s statements that he knew the

transaction was illegal, his willingness to continue the attempted

wiretap, his volunteering to provide Hullum with eavesdropping

devices, his exculpatory stories told persons from whom he bor-

rowed equipment, and his readiness to take all the blame for the

law enforcement officers in the event of detection.

20

fails to show that he was predisposed’ to participate in

such an attempt.

Under the plain meaning of predisposition the acts

and evidence relied on by the Court of Appeals after

Lentz was induced to participate show nothing re-

garding a prior inclination by Lentz to attempt to wire-

tap the Maddox home. If the holding of the Fifth Cir-

cuit that acts showing willfulness, knowledge, intent

and voluntariness, i.e., the same acts to show the com-

mission of an offense, can be sufficient to show predis-

position beyond a reasonable doubt, then there will be

no defense of entrapment. This is especially true in this

case, when all these acts occurred after Lentz had been

induced to participate in an illegal scheme concocted by

law enforcement officials.

The conclusion of the Court of Appeals that the evi-

dence is sufficient to support the jury's verdict that

Lentz was predisposed to participate is in error not only

because the wrong evidence was used to support the

conclusion, but also because there is no evidence to

show Lentz’s predisposition to commit the specific

7 Webster's Third New International Dictionary of the English Language

Unabridged (1976) at p. 1786 defines “predisposed” as: “having a

predisposition: INCLINED, SUSCEPTIBLE, TENDING .. .” ar-

ranged or settled in advance.” Webster's further defines “predis-

pose” as: “to dispose in advance: make susceptible: INCLINE: to

bring about susceptibility.” The Random House Dictionary of the English

Language (1979) at p. 1133 defines “predispose” as: “to give an in-

clination or tendency to beforehand . . .; to give or furnish a ten-

dency or inclination.”

21

offense in question. Assuming that the “controlling

question” is no longer whether the offense is “the

product of the creative activity of its own officials,” Sor-

rells, supra at 451, the Government must still prove be-

yond a reasonable doubt that “the accused [was] ready

and willing without persuasion and [was] awaiting any

propitious opportunity to commit the offense.” United

States v. Wolffs, 594 F.2d 77, 80 (Sth Cir. 1979). [Emphasis

added].

By the offense the Government must prove that Lentz,

without inducement, was predisposed to commit the

offense for which he was charged. The Government did not

and could not have produced any evidence to show that

Lentz had the prior inclination to attempt to wiretap

the phone of Patricia Maddox because Lentz had never

heard of the scheme until after he was approached by

the law enforcement officers and asked to participate in

a plan they had created. (R. 212, 213, 364, 569). In

examining the sufficiency of the evidence on appeal

the legal test is whether a jury could con-

clude that the evidence and its inferences are

inconsistent with every reasonable hypo-

thesis of innocence.

United States v. Barresi, 601 F.2d 193, 195 (Sth Cir. 1979).

In an entrapment case the question must be whether a

reasonably minded jury must have necessarily had a

reasonable doubt regarding predisposition. See United

States v. Barrera, supra.

22

Lentz, who never testified, is presumed innocent,

and therefore, it is presumed that he was not predis-

posed to engage in the attempted illegal wiretapping of

the Maddox residence. The Government's evidence

and the evidence relied on by the Fifth Circuit to show

Lentz’s predisposition is merely the evidence indicat-

ing what Lentz did after he was induced to participate

in the wiretap scheme. Since the only evidence in the

record regarding Lentz’s predisposition, shows only

that he was ready and willing to assist Burnet County

and other law enforcement officers,* this Court should

grant this petition and hold that the jury must have had

a reasonable doubt regarding Lentz’s predisposition.

III. The Court Of Appeals For The Fifth Circuit De-

cided An Important Question Of Federal Con-

stitutional Law Arising From Non-contraband

Entrapment Cases Which Should Be Decided By

This Court.

The majority of this Court participating in Hampton v.

Lnited States, supra, agreed either with the dissent in

Russell and the concurring opinions in Sherman and Sor-

rells or with majority in Russell that

we may some day be presented with a situ-

ation in which the conduct of law enforce-

ment agents is so outrageous that due process

8 (R. 184, 230, 231, 750, 766, 936, 937).

23

principles would absolutely bar the govern-

ment from invoking judicial processes to ob-

tain a conviction.

United States v. Russell, supra at 431, 432. Other courts

have also agreed that outrageous police conduct may

bar prosecution of private citizens. See United States v.

Till, 609 F.2d 228 (Sth Cir. 1980); United States v. Twigg,

588 F.2d 373 (3rd Cir. 1978); Greene v. United States, 454

F.2d 783 (9th Cir. 1971); See also United States v. Archer,

486 F.2d 670 (2d Cir. 1973).

The conduct of the law enforcement officers in this

case was Outrageous. To allow Lentz to be convicted

and incarcerated under the facts of this case “is offen-

sive to the common and fundamental ideas of fairness

and right... .” Betts v. Brady, 316 U.S. 455, 473 (1942).

Cf. Miranda v. Arizona, 384 U.S. 436 (1966); Mapp v. Ohio,

367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383

(1914).

The Fifth Circuit in its opinion questions “the wisdom

of the prosecutor’s decision to bring charges against

Lentz. ...” The Court of Appeals in paraphrasing

Oscar Wilde further observed “that if this is the way

Burnet County treats its confidential informants, it

doesn’t deserve to have any.” Nevertheless, the Court

found that the prosecution, and implicitly the convic-

tion and incarceration of Lentz were not fundament-

ally unfair. While the quoted language may mean

something to the Government in future similar cases,

24

it will be of little comfort to Lentz during his six months

of imprisonment. Furthermore, the Court of Appeals

apparently never fully grasped the facts of this case.

Burnet County was not treating Lentz or any confi-

dential informant in any way whatsoever in this case.

Lentz was arrested by the FBI, and the plaintiff in this

case is the United States of America. The “prosecutor”

whose wisdom is questioned is not a state official in

Burnet County, but rather is the United States Attor-

ney for the Western District of Texas. Additionally,

Lentz was never a confidential informant for Burnet

County or any other agency, regardless of such a

description by one of the Government's witnesses. It

takes a considerable amount of time to digest the rec-

ord in this case, but if one fact in the record is clear, it is

that Lentz’s assistance given to the law enforcement

officers of his home county was anything but confi-

dential.

In making this due process attack on his conviction,

Lentz has been most unfortunate to be joined by

Hullum. It was even more unfortunate when the Fifth

Circuit incorrectly lumped Lentz and Hullum together

in analyzing the due process argument. In looking at

the record in any case “it is necessary ... that [the

Court] undertake to isolate the evidence against each

defendant.” United States v. Gandolfo, supra. This Court

should similarly isolate each defendant in reviewing

the legal arguments presented. Lentz has been plagued

25

from the beginning when he was forced over his objec-

tions to be tried with Hullum.? Then the Court of

Appeals in its combined analysis of the due process

issues of Lentz and Hullum stated that to find Lentz’s

prosecution fundamentally unfair “would be tanta-

mount to giving police everywhere carte blanche to

ignore laws ... .” [Emphasis added].

Hullum is one of the law enforcement officers whose

conduct Lentz has repeatedly argued was outrageous. '

Lentz has no quarrel with the Fifth Circuit’s state-

ment that “it could hardly shock anyone’s conscience to

see an elected law enforcement official prosecuted for

willfully and knowingly breaking a law... .” This is

precisely the reason Lentz should have been granted a

separate trial.

Unquestionably, Lentz’s case does not present the

repugnant physical abuse found to be shocking to the

conscience in Rochin v. California, 342 U.S. 165 (1952).

The Court of Appeals in holding that the conduct of the

law enforcement officers in this case was not too out-

rageous compared only the facts in Lentz’s case to those

in Rochin. The principles stated in Rochin, not merely the

facts, are what should be applied here to demonstrate

the fundamental unfairness of Lentz’s prosecution, for

as Mr. Justice Frankfurter wrote

9 Lentz’s motion for a separate trial was denied by the trial court

and this decision was affirmed by the Court of Appeals. The

charge to the jury on entrapment additionally placed Lentz right

with Hullum. See Court of Appeals Opinion, n.8.

26

[dJue process of law, as a historic and gen-

erative principle, precludes defining, and

thereby confining, these standards of con-

duct more precisely than to say that convic-

tions cannot be brought about by methods

that offend “a sense of justice”.

Rochin v. California, supra at 173.

Allowing Lentz to be prosecuted after the conduct of

the law enforcement officers in this case should offend

anyone’s sense of justice. Lentz, a private citizen, was

approached on March 9, 1979, by Hullum, the Sheriff,

Hall, the Chief Deputy Sheriff, and Fargo, an OCU

member. In asking Lentz to assist in the already

planned wiretap, all three law enforcement officers

purposely lied to him and deceived him, stating that his

assistance was needed to break up a large scale drug

smuggling operation at the house to be wiretapped. (R.

185-90, 193, 207-09, 534-36, 834-36). He was told by

these three men: “we need a favor” and “we feel like

you are the person that can do it.” (R. 211). Ali three

law enforcement officers were aware that approxi-

mately two weeks prior to March 9, 1979, Lentz had

played a major role in assisting the OCU and the U.S.

Secret Service in obtaining the arrests of persons in-

volved in a $100,000.00 counterfeiting scheme in

Burnet County. (R. 187, 293, 574, 934). Yet, all three

officers of the law lied to him, deceived him, induced

him to trust them, and moreover, participated with him in

every act alleged in the indictment.

27

One of Mr. Justice Powell’s reasons for leaving open

a due process attack on a conviction regardless of pre-

disposition was that the Supreme Court had not

had occasion yet to confront Government

overinvolvement in areas outside the realm of

contraband offenses.

Hampton v. United States, supra at 493. Lentz’s case is nota

case involving contraband, other than the lies he was

told about it in order to encourage his assistance. This

case is probably the only case to be found where a pri-

vate citizen has been asked to participate in an illegal

scheme already conceived by the law enforcement offi-

cers and where the law enforcement officers were act-

ing in their official capacity. In this case the distinction

lies in the fact that the persons who arrested Lentz

were not undercover agents stealthily infiltrating a

drug ring. They were a Sheriff and his deputies, per-

sons who Lentz trusted and truly believed were trying

to combat a large scale drug smuggling operation.

Fargo and Hall only disguised one thing when they ap-

proached Lentz — their intention to arrest him.

Illegal wiretapping is by no means a less severe

offense than contraband offenses, but the due process

clause requires that this Court examine the whole

course of events surrounding the proceedings “even

toward those charged with the most heinous offenses”

in determining whether the proceedings were funda-

mentally fair. Rochin v. California, supra at 169.

28

The conduct of the law enforcement officers in this

case can be nothing less than outrageous. The Court of

Appeals noted that the Government was allowed to

proceed to trial with a multiplicitous indictment con-

taining a variance from the proof. Also, Lentz was

forced to be tried with Hullum. Moreover, Count four

of the indictment was patently frivolous. See United

States v. Schweih, 569 F.2d 965 (Sth Cir. 1978). Focusing

solely on the conduct of the law enforcement officers,

this Court should grant this petition and should find

the prosecution of Lentz fundamentally unfair. When

the proceeding is examined as a whole, the argument

for unfairness is even more compelling.

IV. The Court Of Appeals For The Fifth Circuit De-

cided A Federal Question Regarding The Jury

Charge On General Intent In Conflict With This

Court’s Decision In Sandstrom v. Montana, 442 U.S.

510 (1979).

The District Court in the charge to the jury stated

that it was reasonable for the jury “to infer that a per-

son ordinarily intends the natural and probable conse-

quences of his knowing acts.” (R. 1137). This charge

improperly shifted the burden of showing a lack of in-

tent to Lentz. See Sandstrom v. Montana, 442 U.S. 510

(1979); Tuler v. Phelps, 622 F.2d 172 (Sth Cir. 1980). This

is especially true in Lentz’s case since the offenses for

which he was charged required specific intent. See Unit-

ed States v. Schilleci, 545 F.2d 519 (Sth Cir. 1977). In view

-.

29

of the decision of this court in Sandstrom, the Court

should examine the Fifth Circuit’s decision in United

States v. Chiantese, supra, and determine for the benefit of

all lower courts whether there is any real difference to

a jury between “it is reasonable to infer” and “the law

presumes”, as those phrases are used in jury instruc-

tions on intent.

CONCLUSION

For the foregoing reasons, Petitioner William

Lawrence Lentz respectfully submits that his petition

for writ of certiorari should be granted in order for this

Court to review the judgment and opinion of the Unit-

ed States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

CHARLES O. GRIGSON

305 Stewart Title Bldg.

812 San Antonio

Austin, Texas 78701

512/477-5791

ATTORNEY OF RECORD

FOR PETITIONER

WILLIAM LAWRENCE LENTZ

30

CERTIFICATE OF SERVICE

I do hereby certify that three true and correct copies

of the foregoing instrument have been served on Mr.

Wade Hampton McCree, Jr., Solicitor General, Depart-

ment of Justice, Washington, D.C. 20530; one true and

correct copy on Mr. Jamie C. Boyd, United States

Attorney, 655 E. Durango Blvd., San Antonio, Texas

78205; and one true and correct copy on Mr. J. P. Dar-

rouzet, attorney for R. C. Hullum, Jr., 812 San An-

tonio, Austin, Texas, 78701, by United States Mail,

postage pre-paid, on the ___ day of December, 1980.

CHARLES O. GRIGSON

la

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

versus

William Lawrence LENTZ and

Raymond Clinton Hullum, Jr.,

Defendants-Appellants.

No. 79-5418.

United States Court of Appeals,

Fifth Circuit.

Aug. 25, 1980.

Appeals from the United States District Court for

the Western District of Texas.

Before AINSWORTH and GEE, Circuit Judges, and

HUNTER’, District Judge.

GEE, Circuit Judge: ‘

In this somewhat bizarre case, a former sheriff of

Burnet County, Texas, R. C. Hulium, one of his for-

* District Judge of the Western District of Louisiana, sitting by

designation.

2a

mer deputies, Charles Johnston,! and a civilian who

had cooperated with law enforcement officers in the

past, William Lentz, were indicted for illegal wire-

tapping.? The trial court granted motions for acquittal

on count four, but Lentz and Hullum were convicted by

a jury of the remaining three counts of the indictment.

The government elected to proceed to sentencing on

the conspiracy conviction and only one substantive

offense as to each defendant. Hullum was sentenced to

concurrent sentences of one year imprisonment on

each of the two counts, with the court ordering that he

be released as if on parole after serving nine months.

Lentz received the same concurrent terms of im-

prisonment and was ordered to be released as if on

parole after serving six months. They now appeal to

this court, and we affirm.

1 Johnson plead guilty and testified for the government at trial.

He is not a party to this appeal.

2 Specifically, count one of the indictment charged them with

conspiracy to intercept wire communications in violation of 18

U.S.C. §§371, 2511(1a); count two charged Hullum with the

completed, substantive offense of intercepting, endeavoring to

intercept, and procuring the interception of wire communica-

tions in violation of 18 U.S.C. §2511(1)(a) and charged Lentz and

Johnston with aiding and abetting Hullum; count three charged

Lentz with the completed offense and Hullum and Johnston with

aiding and abetting; count four indicted Lentz for possession of a

device for use in the surreptitious interception of communica-

tions in violation of 18 U.S.C. §2512(1)(b) and charged Hullum

with aiding and abetting in the last-mentioned violation.

3a

Factual Background

Sometime in mid-February 1979, Hullum, who was

then the duly elected sheriff of Burnet County, dis-

cussed with his chief deputy, Jack Hall, Hullum’s inter-

est in curtailing illegal drug traffic in the county and his

belief that a house on Mormon Mill Road was occupied

by two women: who were involved in that traffic. Hall

testified that a search warrant had been executed on

the house the preceding August, yielding a little mari-

juana, but that he knew of no intelligence information

on any drug operation there in February 1979. Accord-

ing to Hall, Hullum suggested that a phone tap be made

on the Maddox residence’s line. Both men seemed

aware that the proposed tap would be illegal.

At about this same time, Sheriff Hullum also sus-

pected that another residence in the county, this one in

the Granite Shoals area and wholly unconnected with

the drug traffic problem, was a repository for stolen

property. Hall testified that he explained to Hullum

that it would take time to get a confidential informant

within the stolen goods ring to work undercover for

the sheriff's office. At that point, Hullum asked Hall to

3 Hullum believed that Patricia Maddox and another woman

lived in the house during the events in question; testimony at trial,

however, showed that although Maddox had lived there, she had

moved out before February 1979. Nevertheless, the house was

often referred to as the “Maddox residence” in the trial testi-

mony, and we will use that terminology here. See also our discus-

sion of the indictment, infra.

4a

break into the house to obtain serial numbers from the

stolen property so that a search warrant could be exe-

cuted and suggested that Hall enlist the assistance of

William Lentz, a civilian who had previously served ina

confidential informant capacity for law enforcement

officers.4 Evidently Hullum repeated his request for a

break-in several times over the next few days.

Deputy William Fargo was Burnet County's

representative on the Organized Crime Unit® and

spent much of his time in Austin. Hall discussed with

Fargo the sheriff's plans to wiretap the house on Mor-

mon Hill Road and to break into the house at Granite

Shoals. Fargo in turn talked to Lieutenant Bobby Simp-

son of the Austin Police Department, the head of the

Organized Crime Unit, and Special Agent Robert Hog-

land of the Federal Bureau of Investigation. A few days

later, Hall met with Simpson, Hogland, and Fargo in

Austin, at which time Hall told the men of Hullum’s

ideas. Simpson provided Fargo and Hall with record-

ing equipment to wear during their conversations with

Hullum. Later the FBI provided Fargo with a more com-

pact recording unit than that provided by Simpson.

4 In the winter of 1978-79, Lentz had worked uncercover at the

behest of the Organized Crime Unit, a task force composed of law

enforcement officers from six contiguous counties and headed by

the Austin Police Department, and had helped to break up a

counterfeiting ring in early February 1979.

S See n.4, supra.

Sa

The next day, March 8, Hullum, Hall, and Fargo met

out in the countryside at a roadside rest area. Hall wore

a microphone that Simpson had given him; the re-

ceiver and a recorder were in the trunk of Fargo’s car.

Hall asked Hullum if he still wanted to tap the tele-

phone line from the Maddox residence, and Hullum

answered in the affirmative, stating that his inform-

ant was a person who shared a party line with Maddox

and that the tap would be the only effective way to dis-

cover the activities of the smuggling operation. Hullum

suggested that Lentz be brought in to do the actual tap-

ping and that he also be approached about the break-in

at the Granite Shoals residence.

In the evening of the following day, Hullum, Hall,

and Fargo, joined by Lentz, met at Bear Creek Ceme-

tery in Burnet County. Hall again wore a microphone

to tape the conversation. During this meeting Hullum

told Lentz that he was about to discuss with him the

most serious thing he had ever been involved in and

that they could be in serious trouble if it were not

handled correctly. Hullum then asked Lentz to tap the

Maddox telephone line. Lentz evidently was enthusi-

astic about the operation and agreed to the wiretap; he

explained that his primary problem would be finding a

spot from which he could set up and tap the line and

volunteered to get any needed equipment from a

friend, at which point Hullum again reminded him that

the operation was illegal. Hullum also stressed to Lentz

the fact thax if anyone were caught, he would be doing

“federal time.” Nevertheless, Lentz was undeterred; he

6a

even indicated that he would be willing to take the

blame alone should the illegal activity be uncovered.

Hullum left this meeting briefly to get some equip-

ment that Lentz might be able to use. While he was

gone, Fargo and Hall explained the break-in operation

at Granite Shoals to Lentz, who seemed willing to

undertake that task, also, and discussed various ways

to get into the house undetected.

Another meeting was held at Bear Creek Cemetery

four nights later. The same participants were present

as at the previous meeting there, with the addition of

Deputy Johnston. This time Deputy Fargo wore re-

cording equipment provided by the FBI. Lentz told the

others that he had obtained the proper equipment with

which to tap the line, and he and Hullum discussed the

details and location of the tap. Finally, a site near the

Maddox house that was hidden from the road during

the day was selected. Hullum and Lentz again discuss-

ed the illegality of the operation, and Lentz repeated his

offer to take all the blame if they were caught. The

break-in operation at Granite Shoals was also discuss-

ed briefly. Lentz and Johnston left the meeting to-

gether to pick up the pole-climbing equipment that

Lentz had borrowed from a friend, to whom he had ex-

plained that he needed it to hang a night light from a

pole. The five men reassembled at the prospective

6 The equipment with which Hullum returned was rejected by

Lentz as obsolete; he stated that he could obtain better equip-

mer¢, perhaps by the next day.

7a

wiretap site and, after looking around, decided to meet

in the sheriff's office the next morning to make final

plans.

At that morning meeting, Deputy Fargo again worea

microphone and recording equipment. The plans as

finally made called for Hall and Lentz to drive with

Fargo to the wiretap site in a borrowed truck. Hall

volunteered to carry some of the wiretap equipment

for Lentz, and Fargo served as their lookout. After

Lentz climbed the pole, he or Hall was to radio John-

son, so that the latter could make radio contact with

Sheriff Hullum, who had driven to a location near the

Maddox residence. Sheriff Hullum then was to go to

the residence of his informant, who shared a party line

with Maddox, and make a phone call to the sheriff's

office, keeping the party line open to enable Lentz to

find it and tap into it. All went according to plan for a

time, but once atop the pole, Lentz attempted for 15 or

20 minutes to find the right line to no avail. He notified

Deputy Hall of this, and Hall walked to the truck and

told Fargo. Fargo drove about a mile to the other side of

the Maddox residence, found Hullum, and told him of

the problem. After Hullum discussed and then reject-

ed the possibility of using someone else to do the wire-

tap, Hullum told Fargo to direct Lentz to try again for

about a half hour to tap the line and, if unsuccessful, to

stop and return to the sheriff's office. When Fargo re-

turned to the tap site, he had some difficulty locating

Hall and Lentz; after he found them, he told them to

8a

break off work. The men all returned to the sheriff’s

office, and shortly thereafter, Lentz and Sheriff

Hullum were arrested.

Sufficiency of the Evidence

As one of the elements of the government's case

under 18 U.S.C. §2511(1)(a), it had to prove that the

telephone conversations at issue were “wire com-

munications,” which are defined in 18 U.S.C. §2510.’

Both defendants contend that the government's evi-

dence was insufficient to show that the wire com-

munication in this case was furnished by a common

carrier.

7 Title 18 of the United States Code provides, in pertinent part:

§2511. Interception and disclosure of wire or oral com-

munications prohibited

(1) Except as otherwise specifically provided in this

chapter any person who—

(a) willfully intercepts, endeavors to intercept, or pro-

cures any other person to intercept or endeavor to

intercept, any wire or oral communication;

shall be fined not more than $10,000 or imprisoned not

more than five years, or both.

§2510. Definitions

As used in this chapter—

(1) “wire communication” means any communication

made in whole or in part through the use of facilities for

the transmission of communications by the aid of wire,

cable, or other like connection bet:veen the point of

origin and the point of reception furnished or operated

by any person engaged as a common carrier in provid-

ing or operating such facilities for the transmission of

interstate or foreign communications... .

9a

Defendants carry a heavy burden here, since the evi-

dence must be considered in the ligk.: most favorable to

the verdict, and we must draw all reasonable infer-

ences and decide credibility choices in favor of the jury’s

decision. Glasser v. United States, 315 U.S. 60, 62S.Ct. 457,

86 L.Ed. 680 (1942); United States v. Hitsman, 604 F.2d 443

(Sth Cir. 1979). The government introduced testi-

mony by Mary Gail Knight, who lived in the Maddox

residence during the attempted wiretap, indicating that

her telephone number was 756-4478 and that the tele-

phone line was a four-party line. Mrs. Wall, from

whose residence Sheriff Hullum placed the call to the

sheriff's office to keep the line open, testified that her

phone number was “area code 512-756-4028” and that

she was on the same party line with Mrs. Knight. A

tape recording clandestinely made by Hall of a meeting

at which Hullum and Lentz planned the eavesdrop-

ping operation was played before the jury; the record-

ing contains the following conversation:

HALL:

Our phone system out here is a little more

obsolete than what they have in Austin, too; I

don’t know if you can do that on a party line.

Some of this phone system is some kind of

mess....

FARGO:

This is General Telephone, too.

HALL:

No, this is Continental; one step below Gen-

eral.

10a

After the government rested its case, Lentz and

Hullum moved for judgments of acquittal. At that

point the government requested the court to take judi-

cial notice of the interstate nature of the telephone

communications, but there is no indication in the rec-

ord that the trial judge did so. However, the court ob-

viously felt that the foregoing evidence was sufficient

to submit the issue of whether the conversation at

issue was a “wire communication” to the jury. That is,

he obviously believed that a reasonable minded jury

would not necessarily entertain a reasonable doubt as

to the existence of this essential element. See United States

v. Barrera, 547 F.2d 1250, 1255 (Sth Cir. 1977).

While the evidence of the common carrier status of

the company providing the telephone at issue was thin,

and while we do not congratulate the government for

its skimpy proof of this element, we think that the evi-

dence presented passes muster. From the testimony,

the jury could have concluded, based on the common

fund of information supposedly possessed by jurors,

that the assignment of an area code to a number indi-

cates that the telephone in question is capable of being

utilized in interstate telephone calls and that the tele-

phone was not merely part of a private intercom

system.

Defendants point out that in United States v. Jones, 580

F.2d 219 (6th Cir. 1978), the government proved only

that the telephone at issue was furnished by South

Central Bell Telephone Company and that the court re-

lla

fused to allow the jury to use its common experience to

draw the inference that the telephone was furnished by

a common carrier. Rather, the Sixth Circuit ruled that

South Central Bell’s status as a common carrier, under

the facts presented in Jones, must be governed by the

judicial notice provisions of the Federal Rules of Evi-

dence. Id. at 222-23. Since the government in Jones did

not move the court to take judicial notice at trial, the

Sixth Circuit reversed Jones’ conviction. Defendant

also relies on United States v. Blattel, 340 F.Supp. 1140

(N.D. Iowa 1972), in which the government merely

proved that the telephone was provided by North-

western Bell Telephone Company and moved the

court, unsuccessfully, to take judicial notice of North-

western Bell’s common carrier status 17 days after the

jury’s verdict.

We think the facts introduced by the government in

the instant case distinguish it from Blattel and Jones.

Here the government proved a vital fact: the number of

the telephone at issue included an area code. In light of

the evidence, it was not necessary for the court to take

judicial notice of Continental’s common carrier status,

and the jury could draw an inference of such status

from its common fund of knowledge. Since the evi-

dence was sufficient to go to the jury, we find that

defendants have not carried their burden under Glasser,

and we reject their contentions on this point.

12a

Entrapment and Due Process

Lentz argues that the evidence shows that he was en-

trapped as a matter of law. However, “[ilt is well settled

that the question of entrapment, if fairly raised, is one

for the jury.” United States v. Benavides, 558 F.2d 308, 310

(Sth Cir. 1977). The defendant must first present some

evidence that the government agents induced him to

commit the offense charged. Id.; see also United States v.

Wolffs, 594 F.2d 77, 80 (Sth Cir. 1979); United States v.

Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952). Then the

government must prove beyond a reasonable doubt

that “the accused was ready and willing, without per-

suasion and was... awaiting any propitious oppor-

tunity tocommit the o.fense.” Wolffs, 594 F.2d at 80; see

also Benavides, supra; Sherman, supra. Put another way, the

key to an entrapment defense is the accused's predis-

position to commit the crime. Hampton v. United States,

425 U.S. 484, 96S.Ct. 1646, 48 L.Ed.2d 113 (1976); Sher-

man v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820,

2 L.Ed.2d 848 (1958); Sorreils v. United States, 287 U.S.

435, 448-49, 53 S.Ct. 210, 215, 77 L.Ed. 413 (1932).

The testimony from the government’s own wit-

nesses was sufficient to sustain defendants’ burden of

production in the instant case. That is, it can be in-

ferred from the testimony of Hall and others that Lentz

was induced by government agents to participate in the

wiretapping scheme; thus, the government of neces-

sity shouldered the burden of persuasion on predis-

position. Lentz argues that there is no evidence that he

13a

had any predisposition tocommit the acts alleged in the

indictment and that the government's proof failed asa

matter of law. We disagree. There was a great deal of

evidence in the record from which the jury could find

Lentz’ predisposition: his statements that he knew the

transaction was illegal, coupled with his willingness to

continue his efforts to wiretap the phone; his volun-

teering to provide Hullum with eavesdropping de-

vices; his exculpatory stories, told to the persons from

whom he borrowed the equipment, regarding the use

of the equipment; and his readiness to “take the rap”

for the law enforcement officers should they be caught.

The court’s charge on entrapment, to which Lentz

makes no objection, correctly spells out the law and the

burden of proof for the jury. Thus, since the evidence

8 Where a person has no previous intent or purpose to violate

the law, but is induced or persuaded by law enforcement officers

or their agents tocommit acrime, he is a victim of entrapment, and

the law as a matter of policy forbids his conviction in such acase.

On the other hand, where a person already has the

readiness and willingness to break the law, the mere fact

that government agents provide what appears to be a

favorable opportunity is not entrapment.

If, then, the jury should find beyond a reasonable doubt

from the evidence in the case that, before anything at all

occurred regarding the offenses charged in the indict-

ment, the defendants William Lentz and R. C. Hullum

were ready and willing to commit the crime as chargedin

the indictment, whenever the opportunity was afford-

ed, and that law enforcement officers or their agents did

no more than offer the opportunity, then the jury should

find that the Defendants William Lentz andR. C. Hullum

are not victims of entrapment.

On the other hand, if the evidence in the case should

-*

14a

on predisposition was sufficient to go to the jury and

since the jury was given correct guidance, we must up-

hold the jury’s verdict of guilty. In other words, the evi-

dence in Lentz’ favor is not “so overwhelming that it

[is] ‘patently clear’ or ‘obvious’ that [the accused] was

entrapped as a matter of law.” United States v. Bower, 575

F.2d 499, 504 (Sth Cir. 1979), quoting from United States v.

Groessel, 440 F.2d 602, 606 (5th Cir.), cert. denied, 403 U.S.

933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971).

Lentz makes much of the fact that the entire plan

was conceived by law enforcement officers and that his

only motive was to help those officers catch criminals.

However, entrapment is not necessarily present mere-

ly because government agents provide the oppor-

tunity or means to break the law. If Lentz was a will-

ing, knowing, voluntary participant in an illegal

scheme, and the jury found that he was, he was not

entrapped.

Lentz also argues, and in this he is joined by Hullum,

that the conduct of law enforcement agents is so out-

rageous in this case, and the degree of involvement by

law officers so excessive, that due process principles

absolutely bar the government from invoking judicial

leave you with a reasonable doubt as to whether the

Defendants had the previous intent or purpose to com-

mit the offenses charged, apart fom the inducement or

persuasion of some law enforcement officer or agent of

the government, then it is your duty to find the Defend-

ants William Lentz and R. C. Hullum not guilty.

oe?

15a

process to obtain aconviction. We note that five mem-

bers of the Supreme Court, in Hampton v. United States,

425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976),

would accept the argument that in some circum-

stances government involvement in the crime charged

could be so high as to bar prosecution. See id. at 491, 493,

96 S.Ct. at 1650, 1652 (Powell, J., joined by Blackmun,

J., concurring); id. at 495, 96 S.Ct. at 1652 (Brennan, J.,

joined by Stewart, J., and Marshall, J., dissenting).9

We agree with Mr. Justice Powell in his analysis of

the defense of entrapment in which he states that

“ ‘entrapment’ should now be employed as aterm of art

limited to [the concept of predisposition]. This does not

mean, however, that the defense of entrapment neces-

sarily is the only doctrine relevant tocases in which the

government has encouraged or otherwise acted in con-

9 Inthe opinion for the majority, written by Mr. Justice Rehn-

quist and joined by Chief Justice Burger and Mr. Justice White, the

Court states that in United States v. Russell, 411 U.S. 423, 93 S.Ct.

1637, 36 L.Ed.2d 366 (1973), it “ruled out the possibility that the

defense of entrapment could ever be based upon governmental

misconduct in a case. . . where the predisposition of the defend-

ant to commit the crime was established.” 425 U.S. at 488-89, 96

S.Ct. at 1649. While concurring in the judgment of the case, Mr.

Justice Powell, with Mr. Justice Blackmun, took issue with this

holding. See 425 U.S. at 492-93, 96 S.Ct. at 1651-52. The concur-

ring opinion points out that the Court had never had occasion to

“confront Government overinvolvement in areas outside the

realm of contraband offenses.” lil. at 493, 96 S.Ct. at 1651. Mr. Jus-

tice Powell goes on to state, “In these circumstances, I am unwill-

ing to conclude that an analysis other than one limited to predis-

position would never be appropriate under due process prin-

ciples.” Id., 96 S.Ct. at 1651-52.

>

*

16a

cert with the defendant.” Id. at 492 n.2, 96 S.Ct. 1651

(Powell, J., concurring) (citation omitted). At least two

of our sister circuits have held that excessive govern-

mental irrvolvement in a crime will bar prosecution of a

private citizen. See United States v. Twigg, 588 F.2d 373 (3d

Cir. 1978); Greene v. United States, 454 F.2d 783 (9th Cir.

1971). The Second Circuit has dicta to that effect. See

United States v. Archer, 486 F.2d 670 (2d Cir. 1973). Our

circuit has also indicated, in dicta, that it might accept

the defense of outrageous governmental conduct. See

United States v. Till, 609 F.2d 228, 230 (Sth Cir. 1980).

Therefore, we will assume, although we emphasize

that we do not decide that the conduct of government

agents could be so excessive and outrageous as to bar,

on due process grounds, prosecution for a particular

crime, even if the defendant is shown to have been pre-

disposed to commit the crime.

Even so, while we might very well question the

wisdom of the prosecutor’s decision to bring charges

against Lentz,!° we cannot say with any certainty that

it was fundamentally unfair to prosecute Lentz or

Hullum. The only case cited by the Supreme Court in

United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct.

1637, 1642-43, 36 L.Ed.2d 366 (1973), for the proposi-

10 We here paraphrase Oscar Wilde and observe that if this is

the way Burnet County treats its confidential informants, it

doesn’t deserve to have any. Oscar Wilde is reported to have

opined, regarding conditions in Reading Gaol where he was in-

carcerated, “If this is the way the Queen treats her criminals, she

doesn’t deserve to have any.”

17a

tion that outrageous conduct might bar prosecution in

a proper case, was Rochin v. California, 342 U.S. 165, 72

S.Ct. 205, 96 L.Ed. 183 (1952). Rochin involved an ac-

cused who had had his stomach pumped by the police

after his arrest, and this conduct by the police was held

to be so shocking as to violate concepts of fundamental

fairness under the due process clause. No such shock-

ing occurrences took place in the instant case. After all,

the jury could have believed that then Sheriff Hullum

conceived the entire plan to wiretap the Maddox resi-

dence. Regardless of the undercover devices employ-

ed, it could hardly shock anyone’s conscience to see an

elected law enforcement official prosecuted for will-

fully and knowingly breaking a law designed to protect

citizens from just such conduct.!! While Lentz came

into the plan late, he seems to have embraced it whole-

heartedly, provided some of the means by which to

carry it out, and taken part with full knowledge of the

plan’s illegality. The fact that Lentz was merely help-

ing the police in their alleged efforts to catch criminals

should not make prosecution of him unfair if he volun-

tarily and knowingly employed illegal methods. Were

11 Hullum complains that the trial court refused to give his re-

quested jury charge to the effect that it had to acquit him if it found

that the actions of the government officers were contrary tocom-

mon decency and fair play or were so outrageous and offensive as

to violate due process. The government, in turn, argues that this is

a question of law, not of fact, and was properly excluded from the

jury charge. We hold that, as a matter of law, it was not unfair or

outrageous to prosecute Hullum for the acts he was charged with

a and that the trial court correctly refused togive sucha

charge.

18a

we to hold otherwise, it would be tantamount to giving

police everywhere carte blanche to ignore laws that

could have been passed to protect all citizens against

improper invasions of their rights by police conduct.

“Burglary” Evidence

Lentz complains that evidence showing his willing-

ness to break into the house at Granite Shoals and ob-

tain serial numbers off the suspected stolen goods

should never have been presented to the jury, since it

was wholly irrelevant to the crime charged. Alterna-

tively, he contends that if it had some relevance, it still

should have been excluded under Fed.R.Evid. 403 as

unfairly prejudicial. Lentz’ attorney objected every

time the prosecution sought to introduce evidence re-

garding the planned break-in, primarily on grounds

that the prosecution continually referred to the opera-

tion as a“ burglary” when in fact it would not have been

a burglary under Texas law. The trial court continued

to admit the evidence of Lentz’ willingness to partici-

pate inthe break-in but gave alimiting instruction in its

charge in which it defined burglary under Texas law

and told the jury that neither Lentz nor Hullum were

on trial for burglary. Nevertheless, if the evidence was

irrelevant or if its prejudicial nature substantially out-

weighed its probative value, it should have been ex-

cluded under the Federa! Rules of Evidence. We will

assume that Lentz’ objections preserved this point on

appeal.

19a

Since the discussions about the proposed break-in

were almost hopelessly intertwined with conver-

sations about the wiretapping, we believe that the

break-in evidence was necessary to the government in

its attempt to tell the whole story of the crime.!2 The

government draws support from United States v. Beechum,

582 F.2d 898 (Sth Cir. 1978) (en banc), which approved

of proof of extrinsic offenses under acommon scheme

or res gestae analysis “if the uncharged offense is‘so link-

ed together in point of time and circumstances with the

crime charged that one cannot be fully shown without

proving the other.’ ” Id. at 911-12, n.15 (quoting Slough

& Knightly, Other Vices, Other Crimes, 41 lowa L.Rev.

325, 331 (1956)). We believe that since Lentz was

brought into the law enforcement group by Hullum

both to perform the wiretap and to commit the break-

in, evidence of the break-in would be relevant and ad-

missible under Beechum.

The decision to exclude relevant evidence on

grounds of its unfairly prejudicial nature rests in the

first instance with the trial court, and we cannot hold,

in the circumstances of this case, that the court abused

its discretion in admitting this evidence. Even if we

were to so hold, we would be inclined to find that the

admission of this evidence was harmless error, since

12 Of course, the evidence might be admissible under

Fed.R.Evid. 404(b) as proof of motive, opportunity, intent, prep-

aration, plan, knowledge, identity, or absence of mistake or acci-

dent. However, the government in its brief explicitly rejects this

ground of admissibility and instead urges us to accept the “whole

story” rationale.

20a

the proof of Lentz’ involvement in the wiretapping

scheme was overwhelming.

The Indictment

Lentz and Hullum argue that the indictment was

multiplicious because in one count Hullum was cha rged

with endeavoring to intercept a wire communication,

aided and abetted by Lentz, while in another count

Lentz was charged with the substantive offense, aided

and abetted by Hullum. The jury convicted on both

counts, but the government elected at sentencing to

proceed on only one substantive count for each

appellant, and each was sentenced to concurrent sen-

tences on the conspiracy and on one substantive count.

We believe that the indictment was probably multipli-

cious, since it charged the same offense in two dif-

ferent counts. See Gerberding v. United States, 471 F.2d 55

(8th Cir. 1973). Nevertheless, a conviction obtained

pursuant toa multiplicious indictment does not have to

be reversed in all cases, “since an indictment may

charge a single crime in a variety of forms to avoid a

fatal variance of the evidence.” United States v. Dudley,

581 F.2d 1193, 1199 (Sth Cir. 1978) (citing United States v.

Universal C.1.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct.

227, 231, 97 L.Ed. 260 (1952)). If a multiplicious indict-

ment leads to cumulative sentences, the appropriate

remedy is to remand for dismissal of one count. Dudley,

581 F.2d at 1199. Since-Lentz and Hullum each re-

ceived only one sentence on a substantive count, there is

21a

no reason to upset the disposition made by the trial

court. See id.

Lentz and Hullum also contend that they were preju-

diced by the government's being allowed to go to trial

on the fourth count of the indictment. This count

charged them with possession of wiretapping instru-

ments and was dismissed at the close of the govern-

ment’s case. The trial court entered a judgment of

acquittal on count four because the telephone line-

man’s handset used by Lentz was not shown to be an

instrument of wiretapping designed for that use. The

court then reformed the indictment to reflect the

acquittal. We do not think that the defendants have

shown that the government knew that count four was

frivolous. Nor do we think that allowing the govern-

ment to present evidence on all four counts was un-

fairly prejudicial to either defendant.

Hullum contends that the indictment varied imper-

missibly from the proof offered at trial. Specifically, he

points out that the indictment charges him with con-

spiracy and an attempt to tap the “telephone located at

the residence of Patricia Maddox, Route 2, Box 72,

Mormon Mill Road, Burnet County, Texas,” while the

evidence at trial showed that P:tricia Maddox did not

live in the Mormon Hill residence at the time of the

alleged offense, although she had lived there previous-

ly. However, the evidence also showed that Hullum be-

lieved that the house was occupied by Maddox. We be-

22a

i. .e that a variance does exist, although it is a tech-

nical one and not necessarily fatal to the prosecution.

See United States v. Baldarrama, 566 F.2d 560 (Sth Cir.

1978), cert. denied, 439 U.S. 844, 99 S.Ct. 140, 58 L.Ed.2d

145 (1979). Hullum is not entitled to a reversal of his

conviction unless his substantial rights have been

affected. See United States v. Tilton, 610 F.2d 302 (Sth Cir.

1980). Since Hallum does not allege that any of his sub-

stantial rights were affected by this or argue that he

was prejudiced in any way by the error in the indict-

ment, we reject this contention as a ground for re-

versal.

Jury Charge on Intent

Relying on Sandstrom v. Montana, 442 U.S. 510, 99

S.Ct. 2450, 61 L.Ed.2d 39 (1979), Lentz and Hullum

urge us to find error in the trial court’s instruction on

intent and on the inferences permissible from the evi- .

dence. The pertinent part of the court’s charge is set

out in the margin.13 We think that it is a permissible

charge under our case law and does not incorrectly

shift the burden of proof to defendants. in fact, the trial

court adopted language that we found commendable in

13 It is reasonable to infer that a person ordinarily intends the

natural and probable consequences of his knowing acts. The jury

may draw the inference that the accused intended all of the con-

sequences which one standing in like circumstances and possess-

ing like knowledge should reasonably have expected to result from

any intentional act or conscious omission. Any such inference

drawn is entitled to be considered by the jury in determining

whether or not the Government has proved beyond a reasonable

doubt that the defendant possessed the required criminal intent.

23a

United States v. Chiantese, 560 F.2d 1244, 1255 (Sth Cir.

1977) (en banc). We do not read Sandstrom as forbidding

this type of charge, since the charge at issue is couched

in permissive, not mandatory, language.

Miscellaneous Assertions of Error

Lentz argues that the trial court should have sever-

ed his case from Hullum’s and that its refusal to do so

denied Lentz a fair trial. When defendants are proper-

ly joined in the indictment, the denial of a motion for

severance is subject to reversal only for abuse of dis-

cretion. United States v. Cuesta, 597 F.2d 903 (Sth Cir.

1979). Defendant Lentz must make a strong showing

of prejudice arising from a joint trialin order to gain re-

versal, see United States v. Staller, 616 F.2d 1284 (Sth Cir.

1980) and he has not done so here. Lentz argues that

his and Hullum’s defenses were inconsistent, but in

order to prevail Lentz had to show that “defenses .. .

conflict[ed] to the point of being irreconcilable and

mutually exclusive.” See United States v. Crawford, 581 F.2d

489, 491 (Sth Cir. 1978). The fact that Lentz had a

traditional entrapment defense, while Hullum did not,

is not grounds for severance. See United States v. Eastwood,

489 F.2d 818, 822 (Sth Cir. 1973). Having been shown

no compelling prejudice by Lentz, we uphold the action

of the trial court.

Finally, Hullum charges the prosecution with two in-

stances of misconduct. First, he alleges that the prose-

cution misled him by indicating in discovery that it was

24a

apable of proving the essential elements of count four

of the indictment, when that proved not to be the case

at trial. We fail to see how Hullum was prejudiced by

this action. We would point out that the government

was required under the Jencks Act, 18 U.S.C. §3500, to

deliver the discovery materials to Hullum, and failure by

the government to do so would have been error.

Second, Hullum contends that the government ob-

tained his stipulation to the testimony of one witness,

who the government asserted would have testified

concerning Hullum’s bad character. At a post-trial

hearing this witness stated that he was unaware of

appellant’s character in the community and that his

testimony would have been based upon an acquaint-

ance with Hullum 12 or 13 years prior to the events

charged. Hullum contends that the government knew

before trial that the witness’ testimony would have

been inadmissible and that his stipulation was obtain-

ed by deceit. Since the government presented four

other witnesses who testified that appellant Hullum’s

reputation for truth and h_nesty and for being a law-

abiding citizen was bad, and three addit: onal witnesses

were encompassed vithin the stipulation to that effect,

we fail to see how this one stipulation prejudiced

Hullum’s rights.!4

For all of the foregoing reasons, the convictions are

AFFIRMED.

14 Hullum presented six witnesses who testified to his good

character.

25a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Office of the Clerk

November 3, 1980

Gilbert F. Ganucheau

Clerk

TO ALL PARTIES LISTED BELOW:

NO. 79-5418 — U.S.A. v. WILLIAM L. LENTZ, ET

AL.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 16) the

petition for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

**

26a

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

Is) SALLY HAYWARD

Deputy Clerk

cc: Mr. Charles O. Grigson

Mr. J. P. Darrouzet

Ms. LeRoy Morgan Jahn