# Petition — Hullum v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0994%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 995 ## Text 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 * 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0994%3A1. Public record. Not legal advice.