Petition — Garrett v. United States

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83-17 226 ome preme Court

JAN 21 1906

——— $$ ee

NO.

Supreme Court of the Hited States

OcTOBER TERM, 198__

JOHN GARRETT,

Petitioner

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

2701 Fannin

Houston, TX 77002

(713) 659-8989

Attorneys for Petitioner

7 23-3003

oe ™ o

“ ¥ .

QUESTIONS PRESENTED FOR REVIEW

1. Can federal jurisdiction under the Travel Act be

sustained when the interstate nexus essential to such juris-

diction consisted of a single interstate telephone call to an

undercover agent which was unessential to the underlying

state offense?

2. Were the activities of the federal agents in this case

(which consisted of instigating and participating in a

scheme to bribe a local official with admitted disregard

to any consequences to the local government involved)

sufficiently outrageous to give rise to the defense suggested

by the majority of this court in Hampton v. United States?

TABLE OF CONTENTS

. Page

TABLE OF AUTHORITIES ........ ccc ccccceceeeeens n

GE EID ccc cmncrcccrccceccccveccceceeons 1

STATEMENT OF JURISDICTION .......6cccceeeees 1

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THIS CASE ... 6. cscs ce eee ceeeees 2

STATEMENT OF FACTS ....cccccsccceceereeeeeenes 5

REASONS WHY WRIT SHOULD BE GRANTED ..... 6

A. FEDERAL JURISDICTION UNDER THE

EP EPPPITTTI TTT TTT 6

B. OUTRAGEOUS GOVERNMENT CONDUCT ... 21

CONCLUSION AND PRAYER ...... 5: cc cccccceneens 29

CERTIFICATE OF SERVICE ..... seeecccccceoeeces 30

APPENDICES:

A. Opinion of the Court of Appeals ..........05055 la

B. Opinion of the District Court «0.666666 cece ees 59a

C. Judgment of the Court of Appeals .............. 42a

D. Order of the Court of Appeals Overruling Motions

Ger TROMORTOND ccc ccccceccccceccccrecccccccece 43a

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS AND STATUTES '

18 US.C. § 1952 (“The Travel Act”) eae ee sited

28 US.C. § 1254 sere eeepeeeeeeeeeeeeeee Seeeeveeeeeeenee a

28 U.S.C. § 1359 seer eeereeeeeeeeee eee eee eee eer eee ee seer 17

United States Constitution, Amend. Vo... 6.6.6 c sce ceee 5

CASES Page

v. United States, 409 U.S, 250, 34 L.Bd.2d 446,

93 S.Ct. 477 (1972) eseeeeeree eee eee eeeee seeeeee ,

Hampton v. United States, 425 U.S, 484, 48 L.Ed.2d 113,

96 S.Ct. 1646 (1976) . peeeeeernee Tag be » cvead se

7 HR Uh

v CASES Page

Perrin v, United States, 444 U.S, 37, 62 L.Ed.2d 199, 100

ie SEN CUUVE) cocvccccnee ctendecscnenecédececcas 7,8

Rewis v, United States, 401 U.S, 808, 28 L.Ed.2d 4953, 91

ee DEO CEDTED vccncvccccivvesevecsbcccionss 7, 8, 10, 11, 20

United States v, Alexandro, 675 F.2d 34 (2d, Cir.), cert,

denied, _U.S._, 74 L.Ed.2d 75, 103 S.Ct. 78 (1982) . 24

United States v. Altobella, 442 F.2d 310 (7th Cir. 1971).. 8, 10

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

ars olicts icin s vein dekinecuenat 9, 10, 14, 18, 19, 20, 21

United States v, Bass, 404 U.S. 396, 30 L.Ed.2d 488, 92

INES tRMEEET Cho once Snnaceronte’ «' ?

United States v. Brown, 635 F.2d 1207 (6th Cir, 1980) . 24, 26

United States v, Burkley, 591 F.2d 903 (D.C. Cir, 1978),

cat. denied, 440 U.S, 966, 59 L.Ed.2d 782, 99 S.Ct. 1516 rs

United States v. Clayton, No. H-30-74 (S.D. Tex. 1980) . 4

United States v, Corclone, $92 F.2d 111 (2d. Cir,), cert.

denied, 440 US, 975, 59 L.Ed.2d 794, 99 S.Ct. 1845 and

440 U.S, 985, 60 L.Ed.2d 248, 99 S.Ct. 1801 (1979) . 24, 25

United States v. Craig, $73 F.2d 455 (7th Cir, 1977), cert,

denied nid, 439 US, 820, 58 L.Ed2d 110, 99 S.Ct,’ 82-3 .

OO EE i acu a ected nee ee tea

United States v. Elsner, 533 F.2d 987 (6th Cir), car

denied, 429 US. 919, 50 L.Ed.2d 286, 97 S.Ct. 314

|” Ree peepee ei eats Hae hig ea te 11,12

United States v. Garcia, $62 F.2d 411 (7th Cir. 1977) . 4

United States v, Giordano, 693 F.2d 248 (2d. Cir, 1982) . 25

United States v. Graves, 556 F.2d 1319 (Sth Cir. 1977)

cart. dened, 435 U.S. 923, 55 L.Ed.2d 516, 98 S.Ct. ‘aed i

1 seeeeeeereereeaeeeee sere eereeeeeee eee eeeeeeeeee

United States v. Hauser, No. CR-78-1313 (D, Aris. 1979) 5

United States v, Isaacs, 493 F.2d 1124 (7th Cir.), cert,

denied, 417 US, 976, 41 L.Ed.ld 1146, 94 om 5183

(1974 eeereeereeereeeeee sere eereeeee eee ee ee eeee 9,10, 11

United Seas’ v. Jannotti, 673 F.2d $78 (3d, Cir,), cert

denied, = heen 1106, 73 L.Ed.2d 1315, 102 S.Ct. 2906

1982 seeeeeeree 24

rae ohnson, $65 F.2d 1 int Cir 1977 ,

cert, denied, VP, US, 1075, 55 i 780, 98

1264 (1978) . eeeeeeeee eee eee eee eee eee eee eee eee eee 24

United States v. Kaminski, 703 F.2d 1004 (7th Cir, ‘eee 24

United States v. Khatib, 706 F.2d 213 (7th Cir, 1983) . 25

United States v. LeFaivre, $07 F.2d 1288 (4th Cir, 1974

cert, denied, 420 US, ‘1004, 7 ee hewn

1446 (1975) seeereeeene seer seeeeeereeeee

CASES Page

United States v. Leja $63 F.2d 244 (6th Cir, 1977), cert.

denied, 434 U.S, 1074, $5 L.Ed.2d 780, 98 S.Ct, 1263 and

436 US, 948, 56 L.Ed.2d 790, 98 S.Ct. 2853 (1978) ... 28

United States v. Lightfoot, $06 F.2d 238 (D.C. Cir, 1974) 9, 10

United States v. McCormick, 442 F.2d 316 (7th Cir. 1971) 9, 10

United States v, McQuin, 612 F.2d 1193 (9th Cir, 1980),

cert, denied, 445 U.S, 954, 63 L.Ed.2d 791, 100 §.Ct.

1607 and 445 U.S, 955, 63 L.Ed.2d 791, 100 S.Ct. 1608

BU Ce ers ce, ic tua Cine be lids tla hails 0, « 25

United, tates v. Marcello, $37 F.Supp. 1364 (E.D. La.

DEED Sah 66.6 00 0.000.008 Aas 08 be SOUb eb ebb nbases eedsse ee 4

United States v. Monaco, 700 F.2d 577 (10th Cir, 1983) .. 26

United States v, Myers, 692 F.2d 823 (2d, Cir, 1982),

cert, denied, S._, 77 L.Ed.2d 1322, 103 S.Ct.

Rt greee RaltipenNT 0:2 cnctiatate Rie 4

United States v. Nardello, 393 U.S. 286, 21 L.Ed.2d 487,

I CU a, 7, 20

United States v. Norton, 700 F.2d 1072 (6th Cir.), cert.

denied, US. _|, 76 L.Ed.2d 814, 103 S.Ct 1885

Tg pean prea RE ERIE MS 7h PAPER 24, 25

United States v, O'Dell, 671 F.2d 191 (6th Cir, 1982) . 10, 11

United States v. Perrin, $80 F.2d 730 (Sth Cir, 1978), af,

444 US, 37, 62 L.Ed.2d 199, 100 S.Ct, $11 (1979) . 18

United States v. Prarie, $72 F.2d 1316 (9th Cir, 1978) . 25

United States v. Quinn $43 F.2d 640 (8th Cir, 1976) , 25

United States v. Russell, 411 U.S, 423, 36 L.Ed.2d 366, 93

7 ap ede Reap he pray am 22

United States v. * $85 F.2d 443 (10th Cir, 1978) 25

United States v, 567 F.2d 638 (Sth Cir.)

denied, 439 US, 822, 58 L.Ed.2d 114, 99 S.Ct. a.) cat 24

United v. Tobias, 662 F.2d 381 (Sth Cir, 1981),

cert, denied, 487 US, 1108, 73 L.Ed.2d 1317, 102 S.Ct.

SSIES, «cn. cutuis ciudad sho suena anes cit 24, 27, 28

nited States v. "$88 F.2d $73 (Sd, Clr, 1978) ....24, 26,28

United States v. Wander, 601 F.2d 1251 (3d. Cir, 1979) .. 13

OTHER AUTHORITY

Sen. Doc, No, 98-5160, p, 56, 97th Cong, 2d, Seas. (1982) 29

NO,

IN THE

Supreme Court of the United States

OcToser Term, 198__

JOHN GARRETT,

Petitioner

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

To The Honorable Supreme Court Of The United States:

NOW COMES JOHN GARRETT, petitioner, and files

this Petition for Writ or Certiorari and would show as

follows:

OPINIONS BELOW

1. The opinion of the Court of Appeals for the Fifth

Circuit is published at 716 F.2d 257.

2. The opinion of the District Court for the Southern

District of Texas on the issues presented in this petition

is unpublished and is reproduced in the appendix.

STATEMENT OF JURISDICTION

1, The judgment of the Court of Appeals is dated

September 19, 1983.

2. A timely Motion for Rehearing was overruled on

November 22, 1983.

3. This Court has jurisdiction under 28 U.S.C, § 1254,

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THIS CASE

1. The Travel Act, 18 U.S.C. § 1952, provides as

follows:

§ 1952. Interstate and foreign travel or transporta-

tion in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign com-

merce or uses any facility in interstate or foreign

commerce, including the mail, with intent to—

(1) distribute the proceeds of any unlawful ac-

tivity; or

(2) commit any crime of violence to further any

unlawful activity; or

(3) otherwise promote, manage, establish, carry

on, or facilitate the promotion, management, es-

tablishment, or carrying on, of any unlawful ac-

tivity,

and thereafter performs or attempts to perform any

of the acts specified in subparagraphs (1), (2), and

(3), shall be fined not more than $10,000 or im-

prisoned for not more than five years, or both.

(b) As used in this section “unlawful activity” means

(1) any business enterprise involving gambling, li-

quor on which the Federal excise tax has not been

paid, narcotics or controlled substances (as defined

in section 102(6) of the Controlled Substances Act

{21 USCS § 802(b)]}), or tution offenses in

violation of the laws of the in which they are

committed or of the United States, or (2) extortion,

bribery, or arson in violation of the laws of the State

in which committed or of the United States.

involving liquor shall be conducted under the super-

vision of the Secretary of the Treasury.

2. The Fifth Amendment to the United States Con-

stitution provides, in part: “No person shall . . . be de-

prived of life, liberty, or property, without due process

of law... .”

STATEMENT OF FACTS

The present case results from an FBI sting operation

which has become commonly known as “Brilab.” The

sting operation was the result of a plea bargain between

the government and one Joseph Hauser, Mr. Hauser

pleaded guilty in federal court in Arizona to criminal

charges arising from a scheme to swindle health, welfare,

and pension funds from labor unions. (R. VII, 23-24;

See United States v. Hauser, No. CR-78-1313 (D. Ariz.,

1979) ). In exchange for a light sentence, substantial com-

pensation and fringe benefits, and the benefits of the

Federal Witness Protection Program, Mr. Hauser agreed

to participate as a government agent in an undercover

operation. (R. VII, 23-24, 143-44; IX, 204-204).

To facilitate the operation, Hauser and two FBI agents,

Mike Wacks and Larry Montague, established a bogus

insurance agency known as Fidelity Financial Consultants

in Beverly Hills, California, in mid-April, 1979. (R. XI,

6). A cover was arranged whereby Fidelity would purport

to represent Prudential Insurance Co. (R. XIV, 22-24).

In reality, of course, there was no such organization as

Fidelity, and Fidelity had no connection with Prudential

or any other insurance company. (R. XVIII, 206).

The original plan was that Mr. Hauser would contact

officials of labor unions and offer them large bribes and

a percentage of the commission if they would cause their

labor unions to purchase insurance from Prudential

through Fidelity. (R. VI, 203-204). Hence, the name of

‘y

j j ; \ 7 ”

the operation became “BriLab,” an abbreviation of

“Bribery-Labor.” Hauser’s efforts in Southern California

were unsuccessful (R. VII, 209; X, 125-126), and Hauser

expanded the operation to Texas, (R. VII, 210-212, 220).

After contacting a series of intermediaries, Hauser con-

cocted a plan to bribe Defendant L. G. MOORE, a labor

union official, in order to obtain insurance business from

MOORE’s labor unions. (R. VIII, 38-41).

At approximately this point, for reasons which are

unclear in the record, the objects of the conspiracy under-

went an enormous expansion. Instead of attempting to

bribe labor union officials for the purpose of obtaining

insurance business from labor unions, Hauser began plan-

ning to bribe almost anyone he could find for the purpose

of obtaining insurance business from almost any organi-

zation whatsoever. (See e.g. GX 10, 6-13). Thus, Hau-

ser’s efforts expanded to include an effort to bribe certain

Texas legislators (See United States v. Clayton, No. H-

80-74 (S.D. Tex. 1980)), an effort to bribe certain in-

dividuals in Louisiana, (See United States v. Marcello,

537 F. Supp. 1364 (E.D. La. 1982)), and the present

effort to bribe the Houston City Council.

It was undisputed that Mr. Hauser, a government agent,

instigated the plan to bribe the Houston City Council.

Defendant MOORE introduced Hauser, F.B.I. Agent

Wacks, and F.B.I. Agent Montague to GARRETT, the

Houston Port Commissioner, at his office in Houston. (GX

11, 42-43). The group solicited GARRETT’s aid in ob-

taining insurance business for Prudential. (GX 11, 51).

No limitation was placed on where this insurance business

should be obtained, and a discussion followed concerning

the Port Commission Contract and the Harris County

Contract. (See GX 11, 51-66). Eventually, Hauser di-

rected the inquiry toward how the insurance contract for

c¥

‘4

“Ty

the City of Houston could be obtained. (GX. 11, 66).

GARRETT then made a phone call to his friend, Jim

Westmoreland, a Houston City Councilman, and inquired

about the city contract. (GX 11, 75).

Approximately two months later, a mecting was held

at the Grand Hotel Bar in Houston between MOORE,

Agent Wacks, Agent Montague, GARRETT, Marinello

(an attorney from Louisiana reputed to have underworld

connections), and Westmoreland (GX 25). A very vague

conversation ensued, but the jury apparently believed that

an agreement was reached that Westmoreland would be

paid some unstated sum of money in return for his efforts

to steer the insurance contract to Prudential. (GX 25, 57,

58, 81). Montague had previously informed the Defend-

ants that the commission would be split fifty-fifty between

the agents and the Defendants. (GX 23, 16). The com-

mission would have amounted to over a million dollars.

(See‘GX 37, 2).

Two weeks later, on December 26, the Houston City

Council voted to award the city insurance contract to

Prudential pursuant to a package set up by the Texas

Municipal League. (R. XIV, 14). The actual contract to

be signed was an intra-state contract between the city

of Houston and the Texas Municipal League. (R. XXI,

47). The Texas Municipal League contracted with a

Texas insurance company which, in turn, contracted with

Prudential. (/d.). The Texas Municipal League program

was the low bid and the best program, and the award of

the contract probably had absolutely nothing to do with

the efforts to pay Westmoreland. (R. XX, 52; XXI, 42-

44). This, however, was unknown to the F.B.I. agents.

(R. XXI, 145; XVII, 123, 160). But for a sheer coinci-

dence, the city of Houston would have purchased inferior

insurance via the efforts of the federal government. (/d.).

Defendants’ convictions were based on an interstate call

placed by MOORE to Wacks on December 27, the day

after the council voted. (GX 37). MOORE informed

Wacks that an additional ten thousand dollars was needed

to commit a couple more councilmen. (GX 37, 1). Ac-

cording to MOORE, the contract could be resolved within

twenty minutes if each councilman were promised five

thousand dollars (in reality, the contract had been signed

the day before). (GX 37, 3). At one point, MOORE

further claimed that GARRETT was present during the

call. (GX 37, 6, 8). Approximately ten days later,

MOORE and GARRETT accepted six thousand dollars

as their share of the first month’s commission. (GX 51,

37). Westmoreland was apparently paid five thousand

dollars pursuant to the prior agreement. (GX 59; GX 64).

Shortly thereafter, GARRETT and MOORE were ar-

rested.

Defendants were indicted for one count of conspiracy

to use interstate facilities to facilitate bribery in violation

of 18 U.S.C. § 1952 and for two substantive violations

of said act. Trial was to a jury which found defendants

guilty on one of the substantive counts but was unable

to reach a decision on the remaining counts. The United

States Court of Appeals for the Fifth Circuit affirmed,

and a timely Motion for Rehearing was overruled.

REASONS WHY WRIT SHOULD BE GRANTED

case the F.B.I. instigated a bribery scheme involving a

local official and local participants. Jurisdiction was based

on a single interstate phone call placed to one of the

F.B.I. undercover agents. The phone call was unnecessary

to the scheme and played no integral part in it. This

Court should rule that the federal Travel Act does not

reach so far as to include this phone call.

This Court has rendered decisions regarding the scope

of the Travel Act on four separate occasions. United

States v. Nardello, 393 U.S. 286, 21 L.Ed.2d 487, 89

S.Ct. 534 (1969); Rewis v. United States, 401 U.S. 808,

28 L.Ed.2d 493, 91 S.Ct. 1056 (1971); Erlenbaugh v.

United States, 409 U.S. 239, 34 L.Ed.2d 446, 93 S.Ct.

477 (1972); Perrin v. United States, 444 U.S. 37, 62

L.Ed.2d 199, 100 S.Ct. 311 (1979). The most significant

case for present purposes is Rewis. There, this Court held

that the Travel Act could not be used to ensnare the

proprietors of an illegal gambling operation simply be-

cause the operation was frequented by out-of-state bettors.

This Court began by noting that the Travel Act was

“aimed primarily at organized crime and, more specifi-

cally, at persons who reside in one State while operating

or managing illegal activities located in another.” 401

U.S. at 811. This Court expressed concern that a broad

interpretation of the Travel Act would “alter sensitive

federal-state relationships” and “could overextend limited

federal police resources.” 401 U.S. at 812; see also United

States v. Bass, 404 U.S. 336, 349, 30 L.Ed.2d 488, 92

S.Ct. 515 (1971). This Court’s conclusion was as follows:

“In short, neither statutory language nor legislative history

supports such a broad-ranging interpretation of § 1952.”

401 U.S. at 812. More recently, in Perrin this Court did

not purport to rule on the sufficiency of the interstate

nexus. See 444 U.S. at 50, However, the language of the

opinion has been interpreted by the government in its

argument to the court below as severely limiting, if not

overruling, Rewis. In Perrin, this Court explained Rewis

as follows:

Our concern there was with the tenuous interstate

commerce element. Looking at congressional intent

in that light, we held that Congress did not intend

that the Travel Act should apply to criminal activity

within one State solely because that activity was

sometimes patronized by persons from another state

[S]o long as the requisite interstate nexus is present,

the statute reflects a clear and deliberate intent on

the part of Congress to alter the federal-state balance

in order to reinforce state law enforcement.

444 US. at 50.

Subsequent to Rewis, the courts of appeals have ren-

dered a number of decisions regarding the scope of fed-

eral jurisdiction under the Travel Act. These decisions

cannot be reconciled. The Seventh Circuit has taken the

lead in urging a narrow construction of the Travel Act.

In United States v. Altobella, 442 F.2d 310 (7th Cir.

1971) the court found no jurisdiction under the Travel

Act where defendants had merely cashed an out-of-state

check which was the fruit of an extortion scheme. The

court interpreted the Travel Act as being of limited scope:

That congress did not intend to exercise its full con-

stitutional powers in the area of local law enforce-

ment is demonstrated by the wording of the Act and

specifically by the use of the word “thereafter.”

Id. at 314. The court held that jurisdiction under the Act

requires a “significant use of a facility of interstate com-

merce. . . .” Id. Thus,

[W]hen both the use of the interstate facility and

the subsequent act are as minimal and incidental as

in this case, we do not believe a federal crime has

been committed.

Id. at 315.

In United States v. Isaacs, 493 F.2d 1124 (7th Cir.),

cert. denied, 417 U.S. 976, 41 L.Ed.2d 1146, 94 S.Ct.

3183 (1974) the Seventh Circuit reiterated its narrow

view of the scope of the Travel Act. There, the court

rejected federal jurisdiction where certain checks used

to distribute the proceeds of an illegal bribery scheme

had cleared through an out-of-state federal reserve bank.

The court reasoned as follows:

Similarly, were the § 1952 counts here to be upheld

the federal-state balance would be seriously upset.

It would be the rare case where investigation of an

enterprise in violation of state law would not disclose

some incidental and fortuitous use of interstate fa-

cilities which might then be used to support a federal

prosecution. Nothing in the legislative history sup-

ports such a broad reading of the statute.

Id. at 1147. See also United States v. McCormick, 442

F.2d 316 (7th Cir. 1971).

Following the lead of the Seventh Circuit, at least three

other circuits have either held or implied that jurisdiction

under the Travel Act requires a significant utilization of

interstate facilities. United States v. Archer, 486 F.2d

670, 682-3 (2d Cir. 1973) (“the call served no purpose

that would not have been equally served by a call from

New York; the most that can be said is that when the

defendants made their despicable agreement with Bario,

they were told he might be calling from across the Atlantic

rather than the East River—a matter of complete in-

difference to them.” Jd. at 683); United States v. Light-

foot, 506 F.2d 238 (D.C. Cir. 1974); United States v.

O’Dell, 671 F.2d 191 (6th Cir. 1982).

The Fourth Circuit, on the other hand, has taken the

lead in urging a broad-ranging interpretation of the

Travel Act. In United States v. LeFaivre, 507 F.2d 1288

(4th Cir. 1974), cert. denied, 420 U.S. 1004, 43 L.Ed.2d

762, 95 S.Ct. 1446 (1975) the court was faced with a

set of facts very similar to those faced by the Seventh

Circuit in Altobella and Isaacs. The defendants were the

owners of a local gambling operation in Baltimore. The

only connection shown between the gambling operation

and interstate commerce was that fourteen out-of-state

checks issued in settlements of bets had passed through

interstate banking channels in the clearing process. Never-

theless, the court upheld jurisdiction under the Travel

Act. The court expressly refused to follow the Seventh

Circuit decisions:

It is possible that those cases [Altobella, Archer and

McCormick] may be confined to their facts. If not,

we decline to follow them and reject any narrowly

restrictive reading of the Act.

Id. at 1294. The Fourth Circuit’s interpretation of the

Act has the effect of narrowing this Court’s Rewis opinion

into practical non-existence. The Rewis opinion was ap-

parently based on broad policy considerations—a concern

that the prosecution of the proprietors of an essentially

local gambling operation in federal court would “alter

sensitive federal-state relationships” and “overextend limit-

ed federal police resources.” Nevertheless, the LeFaivre

case upholds federal jurisdiction over precisely such a

prosecution. The effect is that federal jurisdiction depends

upon whether the customers pay by check or in cash,

a matter of little significance.

One other circuit has, at least temporarily, adopted

the Fourth Circuit’s broad interpretation of the Travel

Act. In United States v. Eisner, 533 F.2d 987 (6th

Cir.), cert. denied, 429 U.S. 919, 50 L.Ed.2d 286, 97

S.Ct. 314 (1976) defendant was the proprietor of an

illegal prostitution business. The only use of an inter-

state facility shown was that one customer had paid

for his entertainment with checks drawn on an out-of-

state bank. Fifteen such checks were introduced into evi-

dence. Faced with a challenge to the jurisdiction, the

court noted the conflict between the Seventh Circuit and

the Fourth Circuit. The court opted for the Fourth Cir-

cuit interpretation: “any use of an interstate facility in

furtherance of one of the unlawful activities defined in

the Act is enough to satisfy the jurisdictional require-

ments of the Travel Act.” Jd. at 991; but see United

States v. O’Dell, supra where the Sixth Circuit has ap-

parently retreated to a less broad-ranging interpretation

of the Act.

The Eisner case also narrows Rewis practically out of

existence. Thus, it is highly unlikely that this Court in-

tended to make any distinction between an illegal gam-

bling business and an illegal prostitution business. Under

Rewis the prostitution business would not be a federal crime

simply because it was patronized by out-of-state cus-

tomers. Thus, under Eisner the Rewis holding is ap-

plicable only so long as the customers pay in cash. In

this age of routine payment by check or credit card the

Eisner case makes the Rewis holding very narrow indeed.

The thrust of this Court’s Rewis decision was a concern

with the federalization of local crimes and the injection

of already overextended federal law enforcement and

courts into a traditionally local arena. As emphasized by

the Seventh Circuit in Jsaacs, it is a rare criminal activity

that does not involve at least one out-of-state check,

credit card, or interstate phone call. Thus, under the

LeFaivre and Eisner decisions virtually any local “un-

lawful activity” can, upon careful investigation at the

discretion of the prosecutor, be federalized.

Certain circuit judges have expressed grave concerns

about the expansion of federal law enforcement. In

United States v. Craig, 573 F.2d 455 (7th Cir. 1977),

cert. denied, 439 U.S. 820, 58 L.Ed.2d 110, 99 S.Ct.

82-3 (1978) the normally conservative Seventh Cir-

cuit upheld Travel Act jurisdiction based on a single out-

of-state trip which occurred during the course of a local

scheme to bribe the Illinois legislature. Judge Swygert

registered a strong dissent:

This case follows a pernicious trend that has been

developing in our federal criminal jurisprudence over

a long period of time: the extension of federal juris-

diction beyond anything intended by Congress when

z enacted the various provisions of the Criminal

ode.

Id. at 497.

There is no showing that the bribery scheme in any

way depended on this one incident of interstate

travel. That the members of the ID-MCRA were

meeting in Indianapolis was completely fortuitous.

Id. at 504.

I conclude by depicting a scenario which I have

little doubt approximates the facts of this prosecu-

tion. Federal officials, getting wind of a deal be-

tween the Illinois state legislators and the ready-

mix cement industry, assign agents to investigate.

In due course, immunity is promised to some of the

involved legislators and company officials in re-

turn for their cooperation and testimony. Recording

devices are placed on some of the immunized per-

sons to obtain inculpating admissions from those

who are the targets of the prosecution. Once the

investigation is completed, consideration is then

given io what federal offense, if any, has been

committed. The mail fraud statute? The federal

Travel Act? The investigation files are searched to

find some mailings or evidence of interstate travel.

The United States attorney’s office sifts through the

mailings in the file and then constructs a legal

theory in order that they may be used to form

the basis for a charge of mail fraud. One fortuitous

trip, totally incidental and unforeseen, by an un-

indicted co-chemer forms the basis of the two Travel

Act counts. A conspiracy count is, of course, added.

In this fashion, the mail fraud statute and the Travel

Act are subverted to purposes for which they were

never intended. No longer are the mailings and

travel considered essential or an integral part of the

scheme; they are seen and used as mere technicali-

ties which are necessary to obtain federal jurisdic-

tion.

Id. at 505. See also United States v. Wander, 601 F.2d

1251 (3d Cir. 1979) (“assume that all the activity took

place in Philadelphia, Pennsylvania and that Ms. Currie

left Philadelphia only long enough to have lunch across

the river in Camden, New Jersey. Assume further that

during lunch she received a phone call, and her return

to Philadelphia from Camden was in response thereto.

Would there be federal jurisdiction under the Travel

Act?” Id. at 1265, Aldisert, circuit judge, dissenting. )

Clearly, if the approach advocated by the Seventh Cir-

cuit and by Judges Swygert and Aldisert is applied to

the case at hand, there was no federal jurisdiction. This

was an essentially local scheme to bribe a local city

councilman. The payment was negotiated, the vote ac-

complished, and the state crime completed without the

; :

use of an interstate facility. This conviction rests on a

single interstate phone call placed to a federal under-

cover agent posing as a conspirator after the objects of

the scheme were apparently accomplished. The phone

call was hardly an integral part of the scheme and served

no purpose which could not have been served by a local

call. The presence of the agents in California at the

time of the call can only be described as “happenstance.”

One suspects, as did Judge Swygert, that the phone call

was found as an afterthought as an excuse for federal

jurisdiction.

The present case is further complicated by the heavy

involvement of the government agents in creating the

jurisdictional nexus. The interstate telephone call upon

which jurisdiction was based was ultimately the product

of the activities of the agents. The agents chose to lo-

cate their bogus insurance agency in California. The

agents instigated the plan to bribe the Houston City

Council. The agents chose to return to California shortly

before the council voted.

The leading case on artificial creation of federal juris-

diction in a criminal setting is United, States v. Archer,

supra, a case whose rationale was partially rejected by

the court below. 716 F.2d at 267, n. 5. The facts in

Archer bear a striking resemblance to the facts in the

case at hand and will be discussed in detail. There, as

here, the federal government created a crime in the hope

of ensnaring a corrupt agent of a local government.

There, the “crime” was conceived at a February, 1972

meeting attended by the regional director of the Bureau

of Narcotics and Dangerous Drugs, several agents of the

F.B.I., including one Bario, Vincent Murano, a New

York City police officer, and two assistant United States

attorneys. Pursuant to the plan, Bario assumed a new

identity and posed as a resident alien with connections

to the Las Vegas underworld. He was supplied with fake

identification and two loaded pistols. Murano staged an

arrest of Bario on the phony charge of unauthorized pos-

session of the pistols, a felony under New York law.

Bario was booked, arraigned, and admitted to bail. His

bond was posted by another government agent posing as

his father. A preliminary hearing was waived, and the

case was forwarded for presentation to the grand jury.

A government informer introduced Bario to Defendant

Wasserberger, a Manhattan bail bondsman. Wasser-

berger introduced Bario to Defendant Klein, a Queens at-

torney. Bario declined a proposal that he plead to a mis-

demeanor charge. It was agreed that the only solution

was to have the grand jury return no indictment. Klein

informed Bario that this could be arranged for a lot of

money—probably between $10,000.00 and $15,000.00

in cash. Klein sought a telephone number where he could

reach Bario in Las Vegas, but Bario responded that he

would be out of the country and would call Klein in-

Bario, Wasserberger, and Klein met at Klein’s office

later in the day. Klein stated that he was in touch with

an assistant district attorney, Defendant Archer. Archer

had suggested that Klein create a fictitious story to justify

Bario’s possession of the guns. Such a story was con-

cocted. Klein informed Bario that the total price would

be $15,000.00 in cash.

Three days before the grand jury was scheduled to meet,

Bario made an intrastate call to Wasscrberger. Wasser-

berger said that he had been trying unsuccessfully to

call Bario in Las Vegas in order to inform him that the

grand jury meeting had been postponed.

Bario appeared before the grand jury and told his

concocted tale. Archer persuaded the grand jury to re-

turn no indictment. Shortly thereafter, government agents

observed an encounter be.ween Klein and Archer. About

a month later, Wasserberger, Klein, and Archer were

arrested.

The Second Circuit began by noting that the only

activities which could possibly constitute using “any

facility in interstate or foreign commerce . . . to pro-

mote, manage, establish, carry on, or facilitate the pro-

motion, management, establishment, or carrying on, of

. . « extortion, bribery, or arson .. .” were the three

telephone calls. The first such call was Bario’s call from

Paris to Klein; the second was Klein’s call to Bario

telephone call manufactured by the Government for

the precise purpose of transforming a local bribery

offense into a federal crime. In view of the totally

fabricated nature of this episode, it is immaterial that

Klein returned the call rather than receiving it as

the Government had plotted.

Id, at 681.

The Court was equally quick to reject the unsuccessful

attempts to reach Bario in Las Vegas. “Those calls also

resulted from a plant by the Government.” Jd. at 682.

Or, as the Court had earlier stated:

Congress . . . did not mean to include cases where

the federal officers themselves supplied the inter-

state element and acted to insure that an inter-

state element would be present. Manufactured fed-

eral jurisdiction is even more offensive in criminal

than in civil proceedings, Cf. 28 U.S.C. § 1359.

Id.

Finally, the Court of Appeals rejected Bario’s call from

Paris. It is true that this call was not contrived in the

sense that the other calls were contrived—Bario had a

legitimate reason for being in Paris. However:

In rejecting the government’s motion for rehearing,

the Court held as follows:

While the government professes alarm at the prece-

dential effect of our decision, we in fact went no

further than to hold that when the federal element

in a prosecution under the Travel Act is furnished

solely by undercover agents, a stricter standard is

applicable than when the interstate or foreign ac-

tivities are those of the defendants themselves . . .

Id. at 685-686. This passage has been cited as limiting

the impact of Archer. United States v. Perrin, 580 F.2d

730 (Sth Cir. 1978), aff'd, 444 U.S. 37, 62 L.Ed.2d 199,

100 S.Ct. 311 (1979). However, even this limited inter-

pretation of Archer falls squarely within the case at hand.

If a “stricter standard” is applied to what is already a

very marginal jurisdictional basis, as in the case at hand,

the scales are tipped against the exercise of federal juris-

diction.

The only thing which distinguishes the present case

from Archer is the more elaborate nature of the govern-

ment’s ruse. The government’s decision to locate its bogus

insurance agency in California was purely arbitrary. There

was no evidence produced at trial demonstrating that the

California location was either necessary or useful to the

government’s operation. Had a Texas location been chosen,

there would have been no Travel Act violation. This

would have been true despite the fact that defendant’s

conduct was identical in all material respects with the

conduct which, in fact, occurred. It seems almost pre-

posterous that the existence or non-existence of a federal

crime depended almost exclusively on the government’s

arbitrary selection of the locale for an insurance agency

—a fictitious insurance agency. On rehearing, the Court

in Archer spoke directly to this point:

The Government places great weight on the fact that

Bario was in Paris on legitimate business and was

not sent there solely to manufacture jurisdiction in

this case. But that fact alone is not sufficient to

boty A the Paris call. Any such holding would permit

the Government to convert any local bribery it had

provoked into a federal offense by furnishing an

out-of-state address for an undercover agent or send-

ing him outside the state on a legitimate errand and

having a call made before the offense was consum-

mated.

Id. at 685.

Furthermore, the decision of Agents Wacks and Mon-

tague to leave town after the agreement with Westmore-

land was struck, but before the pay-off, was equally ar-

bitrary. There was no showing that it was necessary or

useful to either the government’s “sting” operation or the

bribery scheme that the agents be out-of-town on De-

cember 27. Indeed, it appears that Agents Wacks and

Montague were in and out of Houston during this time

period. It was at best a matter of happenstance, and

perhaps, a matter of governmental design, that the agents

had returned to Los Angeles at the time of the City

Council vote and on the following day when Moore called.

_ The Archer Court spoke to this point on rehearing also:

Despite the copious citation of cases, including many

not included in its original brief, not one of the

Government’s citations supports application of the

Travel Act where the sole “federal” clements were

telephone calls from or to an undercover agent.

Id. at 684 [Emphasis supplied].

It may be argued that, despite the passage last quoted,

it somehow makes a difference that the Paris call in

Archer was from the government agent rather than to

20:

him. This, however, is a very dubious distinction. The

defendants in Archer were ready and willing to use inter-

state facilities. They twice sought the agent’s Las Vegas

phone number. They tried to call the agent in Las Vegas.

In the case at hand, however, the agents went one step

further in their efforts to create jurisdiction and supplied

a number where they could actually be reached. The

record does not reflect whether defendants sought this

number or whether the agents volunteered it. Jurisdiction

should not depend on whether the agents give a real

phone number or a bogus one. It should also be noted

that, in Archer, the agent’s Las Vegas address at least

gave some credibility to his claim of “underworld” con-

nections. Here, the agents’ California address served no

apparent purpose.

Under these circumstances, the concerns about altering

sensitive Federal-State relationships expressed in Rewis

v. United States, supra, ate particularly compelling. As

noted earlier, it is a rare criminal activity indeed that

involves no out-of-state checks, credit cards, interstate

phone calls, or other use of an interstate facility. Cases

will be even rarer where a government agent, who has

either instigated or infiltrated a scheme, will be unable

to plan his activities so as to cause use of interstate fa-

cilities. Thus, we are approaching a situation where any

of the “unlawful activities” enumerated in the Travel Act

can be transformed into a federal crime virtually at the

whim of federal law enforcement officers and prosecutors.

The legislative history of the Act has been reviewed

by this Court both in Nardello and in Rewis. There, it

was noted that the Act was aimed primarily at organized

crime and, more specifically, at persons who reside in one

state while managing unlawful activities in another state..

It was manifestly not the intent of Congress to transform -

all local extortion, bribery, or arson offenses into federal

crimes. This Court should grant certiorari and reverse

for lack of federal jurisdiction.

B. Outrageous Government Conduct

This case also provides an opportunity for this Court

to clarify an issue of law left unsettled by previous

opinions of this Court: When, if ever, does government

over-involvement in criminal activity reach a level that

prosecution is barred by due process? The facts pertinent

to this issue are undisputed and shocking. Agents of the

federal government thought up, instigated, carried on

and participated in a scheme to bribe the Houston City

Council. The agents neither knew nor apparently cared

whether the insurance they were influencing the Council

to accept was best for the City and its thousands of em-

ployees. It is impossible at this late date to be fully certain

whether the City of Houston acquired its insurance through

legitimate considerations or through the efforts of the

federal government.

Over ten years ago in United States v. Archer, supra,

Judge Friendly remarked that:

[T]here is certainly a limit to allowing govern-

mental involvement in crime. It would be unthink-

able, for example, to permit government agents to

instigate robberies and beatings merely to gather

evidence against a gang of hoodlums. Governmental

“investigation” involving participation in activities

that result in injury to the rights of its citizens is a

course the courts should be extremely reluctant to

sanction.

Id. at 676-7. Bribery of a public official, like robbery,

is classified in most states as a felony. Although the harm

22.

to any particular individual caused by federally instigated.

bribery may not be as great as that caused by Judge

Friendly’s hypothetical robberies and beatings, the number

of victims is enormous. This factor puts this case squarely

within Judge Friendly’s example.

This Court first discussed this issue in United States v.

Russell, 411 U.S. 423, 36 L.Ed.2d 366, 93 S.Ct. 1637

(1973). There, defendant was convicted of unlawfully

manufacturing and selling methamphetamine. His sole

defense was based upon governmental misconduct which

occurred when an undercover agent supplied phenyl-II-

propanone, a rare but essential ingredient in the manu-

facture of methamphetamine. The Court of Appeals for

the Ninth Circuit found this to be an unacceptable level

of governmental involvement in instigating crime and

reversed the conviction.

This Court reversed the Ninth Circuit:

While we may some day be presented with a situation

in which the conduct of law enforcement agents is

so outrageous that due process principles would ab-

solutely bar the government from invoking judicial

processes to obtain a conviction [citation omitted],

the instant case is distinctly not of that breed... .

The law enforcement conduct here stops far short of

violating that “fundamental fairness, shocking to the

universal sense of justice,” mandated by the Due

Process Clause of the Fifth Amendment. |

411 US. at 431-2.

Three years later in Hampton v. United States, 425

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

fendant contended that the government had gone one

step further and actually sold him the contraband to be

resold to another undercover agent. The trial court refused

to instruct the jury that, if they believed this contention,

they should acquit. On appeal, the Court of Appeals for

the Eighth Circuit affirmed.

This Court also affirmed the conviction, but wrote three

separate opinions. In the plurality opinion, Justice Rehn-

quist, joined by Chief Justice Burger and Justice White,

expressed the opinion that, under no circumstances, could

governmental over-involvement in crime reach such a level

that prosecution would be barred by due process:

The remedy of the criminal defendant with respect

to the acts of Government agents, which, far from

being resisted, are encouraged by him, lies solely

in the defense of entrapment.

425 U.S. at 490.

Justice Powell, joined by Justice Blackmun, concurred

in the result. He disagreed with the proposition that due

process could never bar the prosecution of a predisposed

defendant, “regardless of the outrageousness of police

behavior in light of the surrounding circumstances.” 425

U.S. at 492. He particularly noted that: “Nor have we

had occasion yet to confront Government over-involve-

ment in areas outside the realm of contraband offenses.”

425 U.S. at 493. He noted, however, that instances where

this defense would be successful will be rare. “Police over-

involvement in crime would have to reach a demonstrable

level of outrageousness before it could bar conviction.”

425 U.S. at 495, n. 7. Justice Powell concurred in the

result, however, because he believed that the alleged

governmental conduct of supplying the contraband for

resale to another government agent was not sufficiently

outrageous to bar a conviction.

Justice Brennan, joined by Justice Stewart and Justice

Marshall, dissented. He concluded that the police activity

there involved was “beyond permissible limits.” 425 U.S.

at 497. Thus, a majority of this Court, consisting of two

concurring justices and three dissenting justices, recog-

nized the existence of a due process defense based on

police over-involvement in instigating crime.

Subsequent to Hampton, the majority of courts of

appeals have expressed the opinion, usually in dicta, that

“outrageous government misconduct” is still a viable de-

fense in an appropriate case. United States v. Johnson,

565 F.2d 179 (1st Cir. 1977), cert. denied, 434 US.

1075, 55 L.Ed.2d 780, 98 S.Ct. 1264 (1978); United

States v. Corcione, 592 F.2d 111 (2d Cir.), cert. denied,

440 U.S. 975, 59 L.Ed.2d 794, 99 S.Ct. 1545 and 440

U.S. 985, 60 L.Ed.2d 248, 99 S.Ct. 1801 (1979); United

States v. Alexandro, 675 F.2d 34 (2d Cir.), cert. denied,

U.S , 74 L.Ed.2d 75, 103 S.Ct. 78 (1982);

United States v. Myers, 692 F.2d 823, 837 (2d Cir.

1982), cert. denied, U.S , 77 L.Ed.2d 1322,

103 S.Ct. 2437 (1983); United States v. Twigg, 588

F.2d 373 (3d Cir. 1978); United States v. Jannotti, 673

F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106, 73

L.Ed.2d 1315, 102 S.Ct. 2906 (1982); United States v.

Graves, 556 F.2d 1319 (Sth Cir. 1977), cert. denied,

435 U.S. 923, 55 L.Ed.2d 516, 98 S.Ct. 1485 (1978);

United States v. Thomas, 567 F.2d 638 (Sth Cir.), cert.

denied, 439 U.S. 822, 58 L.Ed.2d 114, 99 S.Ct. 90

(1978); United States v. Tobias, 662 F.2d 381 (5th Cir.

1981), cert. denied, 457 U.S. 1108, 73 L.Ed.2d 1317,

102 S.Ct. 2908 (1982); United States v. Brown, 635

F.2d 1207 (6th Cir. 1980); United States v. Norton,

700 F.2d 1072 (6th Cir. 1983), cert. denied, ___US.

___., 76 L.Ed.2d 814, 103 S.Ct. 1885 (1983); United

States v. Garcia, 562 F.2d 411 (7th Cir. 1977); United

States v. Kaminski, 703 F.2d 1004 (7th Cir. 1983);

United States v. Quinn, 543 F.2d 640 (8th Cir. 1976);

United States v. Prarie, 572 F.2d 1316 (9th Cir. 1978);

United States v. McQuin, 612 F.2d 1193 (9th Cir. 1980),

cert. denied, 445 U.S. 954, 63 L.Ed.2d 791, 100 S.Ct.

1607 and 445 U.S. 955, 63 L.Ed.2d 791, 100 S.Ct. 1608

(1980); United States v. Szycher, 585 F.2d 443 (10th

Cir. 1978); United States v. Burkley, 591 F.2d 903 (D.C.

Cir. 1978), cert. denied, 440 U.S. 966, 59 L.Ed.2d 782,

99 S.Ct. 1516 (1979).

Thus, the defense has been recognized but rejected in

a variety of situations where law enforcement agents

instigated or participated in crime but took affirmative

steps to prevent harm to innocent third parties. In United

States v. Giordano, 693 F.2d 245 (2d Cir. 1982) under-

cover agents, in an effort to trap a professional arsonist,

considered employing him to burn an actual building.

However, they actually hired him to burn a non-existent

store. Thus, there was little danger of any actual harm.

The court held that this did not violate due process. In

United States v. Norton, supra, undercover agents infil-

trated a scheme to bomb a synagogue. The agents sub-

stituted a fake bomb for the real one and caused the

defendants to be arrested before the plan materialized.

Thus, injury was prevented by the affirmative acts of the

agents. The government participation in the scheme was

held not to violate due process. In United States v.

Corcione, supra, undercover agents, who were heavily

involved in a scheme to smuggle heroin into the United

States, substituted soap powder for the heroin. Thus, their

involvement in the scheme was held not to have violated

due process. Finally, in United States v. Khatib, 706 F.2d

213 (7th Cir. 1983) government agents who had sold

illegal weapons to defendant arrested defendant immedi-

ately after the sale to prevent harm to third parties. Once

again, there was no violation of due process.

Where undercover agents have actually participated in

a crime without taking steps to mitigate the harm and

no due process violation was found, it has always been

apparent that the agents did not instigate the crime, and

it would have occurred without their participation. Thus,

in United States v. Brown, supra, a government informer

who was participating in the investigation of a wide-

spread burglary and fencing ring actually participated in

a series of burglaries. However, it was abundantly clear

that the burglaries would have occurred without his

assistance. The informer planned none of the burglaries.

He merely followed directions to prevent his identity as

an informer from being exposed. This was held not to

violate due process. In United States v. Monaco, 700

F.2d 577 (10th Cir. 1983) government agents allowed

their informer to continue to work as a prostitute during

the course of the investigation. However, the individual

in question had long been a prostitute and almost cer-

tainly would have continued to work as a prostitute with

or without the approval of the agents. Again, there was

no violation of due process.

When government agents have instigated a crime and

it has been apparent that the defendant would have been

incapable of committing the crime without the assistance

of the agents, the resulting prosecutions have been the

subject of controversy in the lower courts. Thus, in Twigg

v. United States, supra, government agents instigated a

plan to manufacture illegal drugs. The government in-

former purchased all of the supplies, set up the laboratory,

and was in complete charge of the entire operation, The

defendants lacked the expertise to manufacture drugs

themselves, and any production assistance they provided

was “minor and at the specific direction of Kubica [the

informer].” After defendants were convicted, the Court

of Appeals for the Third Circuit, with one judge dis-

seating, reversed. Hampton was distinguished as follows:

In this case, however, we are not only concerned

with the supply by government agents of necessary

ingredients for manufacture, but we also have before

us a crime, unlike Hampton, conceived and contrived

by government agents.

Id. at 378. Thus, the court had “no trouble in concluding —

that the governmental involvement in the criminal activ-

ities of this case has reached ‘a demonstrable level of out-

rageousness.’” Jd. at 380.

In United States v. Tobias, supra, defendant purchased

supplies from an undercover drug supply company oper-

ated by the federal government. When defendant at-

tempted to cancel his order because he had discovered

that he lacked the expertise to manufacture cocaine, one

of the undercover agents suggested that defendant manu-

facture PCP instead. The undercover agents not only sent

defendant all the necessary ingredients but also gave him

advice on at least thirteen different occasions during the

manufacturing process. It was apparent that defendant

could not have manufactured the drug without the assist-

ance of the agents. The Court of Appeals for the Fifth

Circuit affirmed but cautioned: “This case does set the

outer limits to which the government may go in the quest

to ferret out and prosecute crimes in this circuit.” Jd.

at 387.

The dissenting judge repeatedly emphasized the fact

that defendant would have been incapable of manufac-

turing any illicit drug without the assistance and encour-

agement of the government agents. He concluded as

follows:

I do not, of course, propose that federal courts be

accorded a “chancellor’s foot” veto over law enforce-

ment techniques that are disapproved. [Citing Rus-

sell, supra.] 1 do suggest, however, that the majority

goes too far by holding, in effect, that no matter how

egregious and shocking the degree of Government

involvement in the commissiun of a crime, neither

the due process clause nor the court’s supervisory

powers will ever be invoked to preclude prosecution.

Id. at 392-3, Johnson, Judge, dissenting. See also United

States v. Leja, 563 F.2d 244 (6th Cir. 1977), cert.

denied, 434 U.S. 1074, 55 L.Ed.2d 780, 98 S.Ct. 1263

and 436 U.S. 948, 56 L.Ed.2d 790, 98 S.Ct. 2853

(1978) where the Sixth Circuit, with one judge dissent-

ing, affirmed a conviction on facts vaguely similar to

those in Twigg. However, the defendants had instigated

the crime and probably could have carried it out without

the assistance of the agents.

This case represents a step beyond Twigg or Tobias.

Clearly, the government agents instigated this crime. It is

undisputed that both the general idea of bribing people

to obtain insurance contracts and the specific idea of

bribing the Houston City Council originated in the minds

of the government agents. The government agents partici-

pated in the scheme from start to finish. If they had with-

drawn at any point, continuation of the scheme would

have been impossible—literally pointless. Furthemore, in

both Twigg and Tobias the government ended its scheme

before there was any possibility of harm to third persons.

In this case the federal agents allowed the city council to

vote (and, indeed, sign a contract) knowing that some

of the votes were the product of the efforts of the federal

government and not the product of a legitimate desire to

promote the welfare of the city. This is more than this

Court should tolerate.

The remarks of the Committee on the Judiciary, United

States Senate regarding a similar F.B.I. investigation are

quite appropriate here:

It is well that justice is blind for she would not

care to see what has been wrought in her name. This

investigation is a shame and a disgrace. The FBI

created a conspiracy to investigate and investigated

it as some elaborate game without rules or purpose.

The FBI seemingly lost sight of its mandate to un-

cover crime, not create it. The FBI and the Depart-

ment ran this investigation without apparent concern

for the consequence to the individuals under investi-

gation or this nation’s foreign policy. The FBI’s

questionable activities in the much publicized AB-

SCAM investigation caused this Congress to establish

a Select Committee to consider the conduct of under-

cover investigations. The FBI’s conduct of this under-

cover investigation is therefore of special concern

not only to the public but also to members of the

Select Committee to whom we commend this report.

“The Undercover Investigation of Robert L. Vesco’s

Alleged Attempts to Reverse a State Department Ban

Preventing the Export of Planes to Libya,” Sen. Doc.

No. 98-5160, p. 56, 97th Cong., 2d Sess. (1982). This

case should be reversed and an acquittal ordered.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Defend-

ant Garrett prays that this case be reversed and remanded

with orders to dismiss the indictment, or, alternatively,

that this case be reversed and remanded with orders to

acquit. Defendant Garrett is not seeking a new trial.

Respectfully submitted,

HAYNES & FULLENWEIDER

A Professional Legal Corporation

RICHARD HAYNES

RosBertT B. WALLIS

By:

CLINARD J. HANBY*

2701 Fannin

Houston, Texas 77002

(713) 659-8989

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that three true and correct copies of the

foregoing Petition for Writ of Certiorari were served on

The United States Solicitor General, Department of Justice,

Washington, D.C. 20530, Daniel K. Hedges, U.S. Attorney,

515 Rusk, 12th Floor, Houston, Texas 77002 and Mike

Ramsey, attorney for L. G. Moore, 202 Travis, Houston,

Texas 77002 by on this

day of , 1984.

* Application for admission to the bar of this Court pending.

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-2147

UNITED STATES OF AMERICA, Plaintiff-Appelilee,

versus

JOHN GARRETT and L. G. MOORE,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Texas

(September 19, 1983)

Before Wisdom, Tate, and Garwood, Circuit Judges.

TATE, Circuit Judge:

The defendants John Garrett and L. G. Moore ap-

peal their conviction by a jury under 18 U.S.C. §§ 2,

1952(a)(3) (“The Travel Act”)’ for aiding and abetting

1. The Travel Act 18 U.S.C. § 1952 (1970), provides in pertinent

(a) Whoever travels in interstate or foreign commerce or uses

any facility in interstate or foreign commerce, including the mail,

with intent to—

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful

activity; or

(3) otherwise promote, manage, establish, carry on, or facili-

tate the promotion, management, establishment, or carrying on,

of any unlawful activity,

one another in using and causing to be used a facility

in interstate commerce with the intent to carry on a

bribery scheme. The jury found that Garrett and Moore

offered and agreed to offer a bribe to a Houston, Texas,

city councilman for his recommendation and vote in

awarding a contract of group insurance for the city’s

public employees. In facilitation of this unlawful scheme,

the jury found, they caused to be used a facility in inter-

state commerce when Moore placed a long distance tele-

phone call from Houston, Texas to a federal undercover

agent in Beverly Hills, California, on December 27,

1979.

On appeal, the defendants challenge the sufficiency of

Travel Act jurisdiction premised on an out-of-state phone

call made to a federal agent. They claim that jurisdic-

tion was artificaly created because the requisite inter-

state element was supplied by the location of the federal

agent, and that the call did not “facilitate” the under-

lying state offense. Garrett and Moore also contend that

and thereafter performs or attempts to perform any of the acts

specified in subparagraphs (1), (2), and (3), shall be fined not

more than $10,000 or imprisoned for not more than five years,

or both.

(b) As used in this section “unlawful activity” means

-_ * *

(2) extortion, bribery, or arson in violation of the laws of the

State in which committed or of the United States.

The “unlawful activity” facilitated by the use of interstate com-

merce in this case was bribery of a state official, proscribed by Tex.

Penal Code § 36.02(a)(1),(3) (1975). This statute

(a) A person commits an offense if he intentionally or know-

ingly offers, confers, or agrees to confer on another, or solicits,

accepts, or agrees to accept from another:

(1) any pecuniary benefit as consideration for the recipient’s

decision, opinion, recommendation, vote, or other exercise of dis-

cretion as a public servant, party ‘official, or voter;

(3) sit Winibe e isbalaiiis tsk amine od aaa

posed by law on a public servant or party official.

they were entrapped by the federal agents into per-

forming unlawful acts, and that the government’s con-

duct was so outrageous as to constitute a violation of

due process. Garrett argues that the evidence adduced at

trial displayed his absolute lack of predisposition to com-

mit bribery, such that he established entrapment as a

matter of law. Moore contends that he was unable to

make out the defense because the trial court refused to

admit certain evidence of the government’s induce-

ments and testimony of witnesses that would tend to

show lack of prediscription. Moore additionally argues

that the trial court’s determination to admit hearsay evi-

dence of a taped conversation concerning his reputation

as someone who would “deal” denied him federal consti-

tutional confrontation and fair trial rights.

We find that on the evidence shown, the trial judge

did not reversibly err in making these jurisdictional and

evidentiary rulings. We therefore affirm the convictions.

Factual and Procedural Background

These Travel Act convictions are a result of a federal

undercover operation that centered upon the suspectéd

illegal activities of labor unions in promoting and con-

tracting for insurance and pension benefits. In 1979,

Joseph Hauser pleaded guilty to federal charges of pay-

ing bribes and receiving kickbacks in union insurance

business; in return for a reduced sentence and financial

support of himself and his family, he agreed to cooperate

with the government in investigating this type of crime.

Hauser and two F.B.I. agents, Mike Wacks and Larry

Montague, established a fictitious insurance agency

known as Fidelity Financial Consultants, with an office in

Beverly Hills, California and a cover by which they would

purport to represent the Prudential Insurance Company,

a large national concern. Their initial plan was for

Hauser to expose corruption among labor leaders by

bribing them to acquire union insurance through Fidelity.

The agents decided to expand operations outside Calli-

fornia (at least in part because of publicity that Hauser

was a government informer), and, because of Hauser’s

contacts, began to arrange insurance deals in Texas and

Louisiana.’*

The jury trial took place over 27 days of testimony.

The defendants were charged on a conspiracy count and

two Travel Act counts; after four days of deliberations,

the jury convicted on one Travel Act count, but was

unable to agree on a verdict on the conspiracy or other

Travel Act Count. The government’s case was presented

during 19 days of testimony, most importantly the testi-

mony of Hauser and the two F.B.I. agents, corroborated

by tapes of conversations with the alleged conspirators

and tapes of telephone conversations with them. The

defendants’ case was presented in eight days of testi-

mony.

Aside from establishing that the insurance contract

to Prudential at issue had been awarded on its merits in

accord with the recommendation of the Texas Municipal

League, and numerous character and reputation witnesses

for both defendants, the defendants’ case relied princi-

pally pon their own extensive testimony on the stand

2. The defendants were initially to be indicted with two of the

participants in the Louisiana insurance scheme, but these charges

were separately brought. The Louisiana dealings were not referred to

at the trial, although there was testimony to the effect that Vincent

Marinelio, a primary actor in the Louisiana dealings, was

during a few of the meetings of the F.B.I. agents and Garrett and

Moore.

by which they presented a lawful explanation for their

actions. The substance of the explanation is that they

were merely exploiting their political friendships in order

to earn a share of a commission for the insurance con-

tract (not in itself unlawful under Texas law), and that

the money subsequently given to the city official was a

campaign contribution, not a bribe. Garrett also relies

upon his initial protestations, in the conversations that

unknown to him were being taped, that he did not wish

to participate in any illegal activity.

The government’s essentially uncontradicted evidence

shows the following:

In August, 1979, Hauser contacted a Texas acquain-

tance, who put him in contact with Harold Grubbs, a

labor official in Houston; on the recommendation that

Grubbs would split commissions on insurance deals

“fifty-fifty.” In a tape-recorded meeting,* Grubbs told

Hauser about a union official, the defendant L. G. Moore,

whom Grubbs described as “someone who would deal”

and was “on the take.” (On appeal, Moore objects to

the use of this tape, GX 7, as highly prejudicial.)

Grubbs introduced Hauser to Moore to discuss the

possibility of Moore’s obtaining insurance business for

Fidelity. Moore discussed his union connections in many

states and indicated that insurance coverage for Texas

school and hospital districts may be available. Moore,

Hauser, and F.B.I. agent Mike Wacks met on September

10, where Moore accepted $2000 from Hauser and the

three discussed potential business and potential com-

missions (a sum of $600,000 was mentioned) that Moore

3. All of the subsequent meetings of the agents with the defend-

ants were tape-recorded; the government also taped telephone con-

versations of the defendants, in accordance with federal procedures.

could make. Moore named the defendant Garrett, the

President of Richmond Road Engineering and a com-

missioner of the Port of Houston, as a “deal-maker” who

could help them make additional connections for in-

surance contracts.

Moore introduced Garrett to Hauser and agents Wacks

and Montague in October, asking for some “inside

wires on the insurance business with Prudential.” Gar-

rett called Houston City Councilman Jim Westmoreland

at that time to ask him about obtaining for Fidelity and

Prudential the city employees’ insurance coverage that

was going to become open for bidding. This insurance

contract becomes the focus of subsequent meetings and

dealings, although other future and simultaneous deals

were discussed and, for the most part, kept from the jury.

Garrett arranged to meet with Councilman Westmore-

land after the November City Council election. At a No-

vember 28, 1979 meeting of Garrett, Moore, Wacks, and

Montague, Garrett turned down an offer of cash but

stated that he wanted a fifty percent split of the agents’

commissions, which he would then split with Moore. He

again called Westmoreland to discuss the Houston em-

ployees’ insurance contract, telling the others that he

“did not mind spending a few dollars if it looks like

. we have to motivate the works for us.”

At the time of these discussions, the Houston City

Council was negotiating and soliciting bids in preparation

for the January, 1980 expiration of insurance coverage

of 25,000 city employees. Without consulting the govern-

ment agents posing as Prudential/Fidelity agents, Pru-

dential Insurance Company had itself prepared a bid, as

did at least four other major companies. The Texas

Municipal League (“the League”), a commission repre-

senting over two hundred cities in Texas that sought to

combine the bargaining power of the cities in order to

obtain favorable insurance coverage for the municipalities,

independently reviewed the insurance available and, co-

incidentally, adopted Prudential’s plan. The contract final-

ly signed by the City Council on December 26, 1979

was with the League, which contracted with a Texas

insurance company that in turn contracted with Prudential

to provide the coverage. (It is clear that the League had

nothing to do with the efforts to bribe Westmoreland,

and that it had independently selected what it considered

the best coverage at the lowest price. )

Garrett and Moore’s primary efforts in late November

and December were to arrange matters so that Prudential

would be selected for the new city insurance business

that would produce a commission (according to the bogus

agents) of around one million dollars. The defendants

talked often to government agents Montague and Wacks.

(Hauser had disappeared entirely from the scheme because

he began serving his prison sentence; Moore knew the

fact of Hauser’s imprisonment, but explained his absence

to Garrett by telling Garrett that Hauser was sick.)

Moore telephoned the government agents, who had re-

turned to California, in order to discuss progress of the

insurance selection by the Council.

On December 11, Moore, Garrett, Wacks and Mon-

tague again met at Garrett’s office in Houston to discuss

payment of commissions and an upcoming meeting with

City Councilman Westmoreland. The agents asked how

much to give Westmoreland, and at Garrett’s suggestion,

they agreed to pay Westmoreland no m>:e than $2000

at the first meeting.

That evening, the four waited at a hotel bar for West-

moreland, accompanied by Vincent Marinello, a lawyer

from New Orleans who had independently called West-

moreland and who had worked with Hauser on a similar

scheme in Louisiana. (See note 2 supra). Garrett told

Montague to forget about paying Westmoreland anything

that evening; in response to Montague’s question, Garrett

replied that, however, Westmore ind understood that he

would be paid once the deal was signed. Westmoreland

arrived and informed the group that Prudential would

get the contract if it were, out of the five companies con-

tending for the contract, the third best bid or better.

Garrett assured Wacks on December 13 that the con-

tract would be approved at the City Council meeting the

following week; however, the council postponed its vote

on the issue for another week. The City Council voted

in favor of the Texas Municipal League/Prudential cover-

age on December 26; Westmoreland seconded the motion

for adoption of the contract and voted for it, while two

councilmen voted against it. The next day, December 27,

Moore called agent Wacks at the Fidelity offices in

Beverly Hills, California. (This is the intersiate telephone

call upon which the present federal Travel Act indict-

ment is based.) Moore told Wacks that the contract was

to be voted on that day (although Moore had been

present at the council meeting the day before, at which

the Council voted in favor of the Prudential contract),

and that they needed an extra $10,000 to commit a

couple more councilmen. Wacks agreed to pay this sum.

In the conversation. Moore stated that Garrett was in

the room during the call.

Moore called again the same day, left a message, and

Wacks returned the call. Moore then told him that the

contract had just been awarded at a premium of $12

million (of which the agreed commission for the agents

and the defendants was ten percent).

Moore again called Wacks in California on December

28, asking for $10,000 so that Garrett could pay off

Westmoreland. On January 5, 1980, Wacks told Moore

that he wanted to be present when the $10,000 was given

to Councilman Westmoreland, because the company

wanted to ensure that the money was paid. On January

7, Wacks, Montague, Moore and Garrett met at a hotel

in Houston where Moore and Garrett were given $6000

as their share of the commissions for the first month.

At this meeting, Garrett told Wacks that he had con-

tacted Westmoreland about the meeting for the payoff,

but that Westmoreland was too nervous to accept payment

in the agents’ presence. They arranged that Garrett would

relay a code to Westmoreland’s office in the agents’ pres-

ence to signify that the payoff money was ready for

delivery.

On January 11, Garrett, Moore, Wacks, and Mon-

tague met in Garrett's office; Wacks gave Garrett

$5000 and Garrett left a message with Westmore-

land’s secretary in code that the “5/8 inch reinforc-

ing steel was in.” On January 21, Montague called

Moore; Moore said that Garrett called the council-

man and said that Westmoreland had “the steel.” Garrett,

Montague and a third party met on January 22 to discuss

future business; Garrett said that Westmoreland was

“happy,” but wanted to know when the other payment

of $5000 would come.

The Issues Raised by the Appeals

The following issues are raised by the defendants’

appeals:

10a

I. Travel Act Jurisdiction: (A) The indictment under

the Travel Act, 18 U.S.C. § 1892(a)(3) (quoted in

footnote 1) should have been dismissed, or an acquittal

ordered, because a violation of this statute, and conse-

quently federal jurisdiction, may not be based on a

telephone call with so little interstate nexus with the

unlawful activity and which did not “facilitate” the un-

lawful purpose within the meaning of the Travel Act;

(B) Further, the happenstance that the telephone call to

a government agent finds him located at a site in another

state does not furnish a basis for jurisdiction or convic-

tion under the Act.

II. Entrapment issues: (A) Availability of the defense;

(B) Moore complains of the introduction of a redacted

tape from which was excised overwhelming inducements

offered to Moore by government witnesses; (C) Moore

complains of the exclusion by the trial court of some

“lack-of-predisposition” witnesses offered by him; (D)

Moore contends that his “lack-of-predisposition” defense

was severely prejudiced by the admission into evidence

of two tapes of conversations between Hauser and Grubbs

(the latter not called to testify), which moreover violated

his Sixth Amendment rights since he was unable to cross-

examine Grubbs as to his characterization of Moore as

a labor leader who would “deal”; (E) Garrett contends

that the evidence shows that he was entrapped as a matter

of law and that the district court erred in not granting

his motion for a directed verdict of acquittal. .

III. Outrageous government conduct; Both defend-

ants contend that the conduct and degree of involvement

of the government agents is so outrageous as to violate

their due process rights and entitle them to dismissal of

the indictment.

lla

I. Travel Act Jurisdiction

Garrett and Moore contend that federal jurisdiction

under the Travel Act may not be predicated solely upon

the out-of-state phone call made by Moore to the govern-

ment agent in.California and, further, that the telephone

call to the government agent in the present case did not

implicate “intent” to “facilitate” the defendants’ “unlaw-

ful activities” within the meaning of the Act. The defend-

ants thus argue that the indictment in this case should

have been dismissed or acquittal ordered because federal

jurisdiction was artificially created by the agents’ use of

the California office location. They also argue that the

use of interstate communications was at best marginally

involved in facilitation of an essentially local crime, and

that the bribery activity preferably should be attacked

under state law and not the Travel Act, which is intended

primarily to be a weapon against organized crime.

(A) Interstate Nexus and “Facilitation”

Requirements

The call of December 27, 1979, on which the govern-

ment based Travel Act jurisdiction for the count on which

the defendants were convicted, occurred under the follow-

ing circumstances, as revealed by the taped conversations

introduced into evidence at trial: Garrett requested that

Moore call the agents to obtain details concerning the

amount of the insurance premium. The same day, from

Texas, Moore called agent Wacks at the Fidelity office

in Beverly Hills, California, stating that the vote on the

insurance contract had been postponed by the City Coun-

cil and that $10,000 was needed to “move” a couple of

the councilmen. Moore told Wacks that Garrett was in

the room and needed a commitment from Wacks.

12a

The defendants contend that the interstate call did not

“facilitate” an “unlawful activity” within the meaning of

the Act. They argue that the primary purpose of the Act

was to combat highly organized criminal syndicates whose

criminal conduct was beyond the reach of local officials,

and that here the underlying state crime of bribery—

technically implicating solely an intrastate insurance con-

tract between the Texas Municipal League and the City

of Houston—only marginally involved interstate com-

merce. Furthermore, they assert, the telephone call was

merely incidental to commission of the offense, for all of

the elements constituting the state crime of bribery were

present and the crime was “complete” before the tele-

phone call, when the defendants had agreed to pay West-

moreland for his vote. They also argue that the interstate

nature of the calls, caused exclusively by the happenstance

of the federal agent’s location, contributed nothing to the

scheme that could not have been accomplished by an

intrastate call.

In urging a narrow construction of the Travel Act that

would not encompass this “essentially local” bribery

scheme, the defendants emphasize that “[l]egislative his-

tory of the Act is limited, but does reveal that [it] was

aimed primarily at organized crime and more speifically,

at persons who reside in one state while operating or

managing illegal activities located in another.” Rewis v.

United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 1959

(1971). In Rewis, the Supreme Court held that the

Travel Act did not reach so far as to include the pro-

prietors of a local gambling operation just because its

13a

tions in which . . . geographic origin . . . , a matter of

happenstance, would transform relatively minor state

offenses into federal felonies.” 401 U.S. at 812, 91 S.Ct.

at 1059.

Subsequently, however, this circuit, later affirmed by

the Supreme Court, observed that the Travel Act’s ex-

pansive language did not outlaw only those “crimes

‘typically associated with the underworld.’” Perrin v.

United States, 580 F.2d 730, 733 (Sth Cir. 1978), af-

firmed, 444 U.S. 37, 100 S.Ct. 311 (1979). In Perrin,

the court found that the bribery of a corporate employee

to steal data from his employer constituted an “unlawful

activity” for purposes of the Act, and that a single inter-

state telephone call sufficiently facilitated the plan so as

to sustain federal jurisdiction.

In affirming the determination of this court the Su-

preme Court held that the statute encompassed illegal

activities besides those traditionally associated with organ-

ized crime, explaining that its concern in Rewis was not

with the local nature of the predicate intrastate gambling

operation, but with the “tenuous interstate commerce

element.” Perrin, 444 U.S. at 50, 100 S.Ct. at 318.

The Court concluded that, with regard to an under-

lying: unlawful state “bribery” activity, 18 U.S.C. § 1952

(b)(2), “so long as the requisite interstate nexus is

present, the statute reflects a clear and deliberate intent

on the part of Congress to alter the federal-state balance

in order to reinforce state law enforcement.” 444 U.S. at

812, 91 S.Ct. at 1059. Thus, here, bribery of a city

official—the unlawful activity underlying use of interstate

communication facilities in violation of the Travel Act—

is clearly within the ambit of the statute. See also United

States v. Pecora, 693 F.2d 421 (Sth Cir. 1982) (bribery

° a state sheriff).

l4a

We thus must analyze the nature of “the interstate

nexus”, Perrin, 444 U.S. at 812, 91 S.Ct. at 1059, ie.,

the interstate telephone call the defendant Moore placed

from Texas to federal agent Wacks in California, in order

to consider the defendants’ contention that the call does

not sustain federal jurisdiction or prove a violation of the

federal act, because it did not facilitate, or at most only

incidentally facilitated, unlawful activity, and because it

occurred subsequent to the completed state offense of

bribery (even though the bribe money was actually paid

after the telephone call).

The Travel Act punishes the use of interstate facilities

to “facilitate” the carrying on of unlawful activities that

are “thereafter” performed, 18 U.S.C. § 1952(a) (quoted

at note 1 supra), pertinently including the unlawful ac-

tivity of “bribery”, 18 U.S.C. § 1952(b)(2). The Act

“reaches anyone who travels interstate or uses an inter-

state facility to facilitate an unlawful activity and there-

after performs or attempts to perform an act in aid there-

of.” United States v. Jones, 642 F.2d 909, 913 (Sth

Cir. 1981).

In both Perrin and Pecora, supra, the courts upheld a

Travel Act violation based on a single interstate telephone

call. Perrin involved a conspiracy to bribe an employee

of a geological corporation (who acted as a government

informer), in which the coconspirators bribed the em-

ployed informer to steal seismic exploration charts from

his employer and to help set up a corporation for ex-

ploiting the data. The informer was instructed by the sub-

15a

constitute an essential aspect of the already completed

bribery agreement, for “[t]here is no requirement that the

use of interstate facilities be essential to the scheme: it is

enough that the interstate travel or the use of interstate

facilities makes easier or facilitates the unlawful activity.”

580 F.2d at 736. Accord, United States v. Jones, 642

F.2d 909, 913 (Sth Cir. 1981).

In Pecora, Travel Act jurisdiction was founded upon

an interstate telephone call from the defendant, made at

the request of the sheriff (who was cooperating with the

F.B.I.), to discuss details of the proposed bribery to

secure the dismissal of state drug charges. We applied

Perrin and rejected the defendants’ contention that the

call, even if it made the bribery scheme easier, was too

“fortuitous and incidental” to invoke the Travel Act. We

concluded that the call served to “benefit” the scheme

and that “we discern in the Travel Act no exception for

casual and incidental occurrences or for ‘happenstance’

ones.” 693 F.2d at 424.

Aside from the aspect of the government agent’s loca-

tion outside the state when the interstate call was received

by him (which will be discussed below), the telephone

call in the present case requesting funds for bribery is no

more incidental or fortuitous than the calls invoking the

Travel Act in Perrin and Pecora, found to be sufficient

to sustain jurisdiction. The defendants argue that the

interstate nature of the call, a mere happenstance result-

ing from the location of the government agent, added no

special assistance to the scheme, for the same objects

could have been accomplished by an intrastate call. This

argument was implicitly rejected in Perrin and Pecora,

for in those cases the defendants’ plans would have been

served equally by an intrastate call.

16a

The defendants argue that the call did not benefit what-

soever the unlawful activity, because under Texas law,

the crime of bribery was complete when the defendants

agreed to pay Westmoreland for his vote. Arranging

actual payment of the bribe, however, undoubtedly made

easier the commission of the scheme, just as in Perrin,

where the defendants had already offered to bribe the

employee, an offense under Louisiana law, but used the

interstate call to effect exploitation of the stolen data

in order to pay the agreed-upon bribe—a percentage of

the profits from the scheme.

We also cannot accept the defendants’ contention that

the call to a government agent could not “facilitate” the

crime, At least by implication, Perrin and Pecora require

rejection of this argument. There, the defendants were

held properly convicted under the Travel Act for attempt-

ing to bribe the sheriff and the corporation employee,

both of whom were secretly cooperating with federal

authorities.

In the present case, Moore’s call to Wacks to obtain

funds (which resulted in Wacks subsequently giving the

defendant $10,000) actually benefited the defendants’

plans to arrange payment for Westmoreland in accord-

ance with their agreement to pay him for his vote; it thus

facilitated the unlawful bribery activity within the mean-

ing of the Act, following and as a consequence of which

the bribe money was actually paid. Moore’s call to Wacks

in this case likewise serves to invoke Travel Act juris-

diction over his codefendant Garrett, who aided and

abetted in the entire scheme, was aware that the agents

were based in California, and was present during Moore’s

call. The evidence further shows that he directed Moore

to call the agents for the $10,000; as in Perrin, where

17a

the defendants instructed a participant to telephone out-

of-state, “it is sufficient that the [defendant] caused the

use of interstate facilities.” 580 F.2d at 736 (emphasis

added).

(B) Artificial Creation of Travel Act Jurisdiction?

The defendants strenuously contend that federal juris-

diction was contrived, because the interstate element

depended on the federal agents’ location in California

to receive the interstate call from Moore. Garrett and

Moore argue that the existence of a federal crime should

not depend upon the government’s arbitrary—and in their

opinion, inconvenient—out-of-state locale for the fictitious

insurance agency, and that it was not necessary or useful

to the government’s “sting” operation or to the bribery

scheme that the agents be outside the state on the dates

of the city council vote regarding the insurance plan. The

defendants suggest that it was at best a matter of happen-

stance, “and perhaps, a matter of government design”,

that the agents were in California during this time. They

urge that this court adopt the standard articulated by

the Second Circuit on rehearing in United States v.

Archer, 486 F.2d 670, 685-86 (2d Cir. 1973) (emphasis

added): “when the federal element in a prosecution under

the Travel Act is furnished solely by undercover agents

a stricter standard is applicable than when the interstate

or foreign activities are those of the defendants them-

selves,”*

4. Because of the nature of governmental involvement, the Second

Circuit in Archer rejected the establishment of Travel Act jurisdiction

on the basis of several interstate and foreign phone calls. The court

discarded as artificially created one call, where the government agent

travelled into New Jersey solely in order to make a call to the de-

fendants in New York (which the defendants then returned). 486

F.2d at 681. It also rejected the defendants’ calls to Las Vegas that

18a

In both Perrin and Pecora, discussed above, the de-

fendants raised similar arguments concerning whether

governmental agents improperly supplied the interstate

nexus in the Travel Act prosecution. In Perrin, the court

set forth the Archer standard urged by the defendants,

and noted that jurisdiction in Perrin had been established

by one count of the indictment that specified an out-of-

state call to a third party made by one of the coconspira-

tors. The court also considered, however, the Travel Act

count in which jurisdiction depended upon the interstate

phone call to a map store made by the government in-

former, determining that it could not “condemn the fact

that the government informer was involved in the inter-

state element of the crime.” 580 F.2d at 736. It found

that the informer was a “follower” in the scheme and

that another coconspirator selected the out-of-state source

of the maps. This court warned, however, that although

there was no artificial manufacture of jurisdiction present,

a government informer could not “at the behest of the

government .. . unilaterally supply the interstate element

of a local bribery scheme and thereby transform [it] into

a Travel Act violation: for example, [he] could not at

the government’s direction [go out of state] merely to

call one of the coconspirators.” /d.

In Pecora, the sheriff, acting for the government, had

a message relayed to the defendant, while she was out-of-

state, to call him to arrange the details of the planned

bribery. The court found that there was no attempt to

create or manufacture federal jurisdiction artificially under

the Travel Act, for ample evidence existed to support

were in response to a government plant of misinformation that the

agent could be reached there. /d. at 682. Finally, the court rejected

as a “casual and incidental occurrence” the call that the government

agent placed to the defendants while he was pursuing another govern-

ment investigation in Paris. Jd. at 682-83.

19a

the trial court’s determination that the sheriff requested

the defendant to call before he learned that she was out-

of-state. The court concluded that “[uJnlike Archer, the

interstate element in this case was not furnished solely

by undercover agents and there is no question of any

attempt to contrive jurisdiction.” 693 F.2d at 424 (em-

phasis added).°

Pecora and Perrin thus do not expressly adopt or re-

ject the Archer “stricter standard” for testing the suffi-

ciency of an interstate nexus involving government agents.

In instances when the interstate nexus is furnished by a

telephone call to a government agent, these decisions do,

however, require the court to scrutinize the government’s

apparent reasons for its actions and forbid the govern-

ment agent’s movement out-of-state for the sole purpose

of manufacturing Travel Act jurisdiction.

In the present case, no evidence shows that the agents

initially set up Fidelity in California or arranged to be

there when Moore and Garrett needed to telephone them

for additional funds solely for the purpose of contriving

an interstate nexus. The agents had established a base in

California because of Hauser’s connections there and, —

subsequently, decided to branch out-of-state from Cali-

fornia into Louisiana and Texas because their activities

in California were impaired by publicity that Hauser was

a government informer. This preexisting out-of-state op-

eration, combined with the fact that the defendant Moore

was aware of the interstate nature of the agents’ (ficti-

tious) insurance business when he himself telephoned the

5S. The Pecora court then rejected the Archer rationale for not

permit jurisdiction to be based on the government t’s call

from (see note 4 supra); contrary to the Second Circuit, this

court concluded that the Travel Act did not except “casual, incidental,

or happenstance” interstate contacts.

20a

agents in California, is sufficient to show that the inter-

State element was not solely furnished by government

agents and that the government did not attempt to con-

trive jurisdiction. See also United States v. Bagnariol,

665 F.2d 877, 896-99 (9th Cir. 1981) (the govern-

ment agent’s residence in a state other than that of the

defendant was not established solely to manufacture an

interstate element, but was a result of a prior undercover

operation).

Because we find that interstate nexus here similarly

was not artifically created to invoke federal jurisdiction,

and does not infringe the standards of Perrin and Pecora,

we conclude that Travel Act jurisdiction exists.

II. Entrapment Issues

In trial, and now on appeal, the defendants urged that

they were innocent by reason of government entrapment.

In our en banc opinion in United States v. Webster, 649

F.2d 346, 348-49 (Sth Cir. 1981), we summarized the

principles relating to the defense of entrapment:

First recognized by the Supreme Court in Sor-

rells v. United States, 287 U.S. 435, 53 S.Ct. 210,

77 L.Ed. 413 (1932), the defense of entrapment is

“virtually unique to the criminal jurisprudence of the

United States,” G. Fletcher, Rethinking Criminal

Law, § 7.3.B, at 541 (1978); See Mikell, The Fed-

eral Courts, 90 U.Pa.L.Rev. 245, 246 (1942). The

justification for the defense is “that Congress could

not have intended criminal punishment for a defend-

ant who has committed all the elements of a pro-

scribed offense, but was induced to commit them by

the Government.”* United States v. Russell, 411

U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d

366 (1973). Three major Supreme Court cases,

decided over a span of 41 years, establish that en-

2la

trapment occurs “when the criminal design originates

with the officials of the Government, and they im-

plant in the mind of an innocent person the disposi-

tion to commit the alleged offense and induce its

commission in order that they may prosecute.” Sor-

rells v. U.S., 287 U.S. at 442, 53 S.Ct. at 212-213;

accord, United States v. Russell, 411 U.S. at 428-29,

93 S.Ct. at 1641; Sherman v. United States, 356

> a 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848

Notwithstanding the forceful arguments to the

contrary, it is clear that when entrapment is at issue

the focal point of the inquiry is on the predisposi-

tion of the defendant.’ See United States v. Russell,

411 US. at 433, 93 S.Ct. at 1643. Thus, a defend-

ant who wishes to assert an entrapment defense

must initially come forward with evidence “ ‘that

the Government’s conduct created a substantial risk

that the offense would be committed by a person

other than one ready to commit it.’ ” United States

v. Dickens, 524 F.2d 441, 444 (Sth Cir. 1975)

(quoting United States v. Mosley, 496 F.2d 1012,

1014 (Sth Cir. 1974)). Once the defendant has

carried this burden, the government must, if it is

to prevail prove beyond a reasonable doubt that the

defendant was predisposed to commit the crime

charged. United States v. Dickens, 524 F.2d at 444.

During the government’s case, the trial court ruled

that there was sufficient evidence in the record to raise

the entrapment defense: The trial court found that the

evidence of government monetary inducements and the

initiation of contacts for the insurance scheme satisfied

the defendants’ initial burden under United States v.

Dickens, 524 F.2d 441, 443 (Sth Cir. 1975), cert.

denied, 425 U.S. 994, 96 S.Ct. 2208 (1976), to come

forward with evidence showing that the government’s

conduct created a substantial risk that the offense would

22a

be committed by a person other than one ready to com-

mit it. Therefore, once the defendant raised the issue

that the government had induced the defendants beyond

merely affording opportunity or the facilities to commit

a crime, the government was required to prove beyond a

reasonable doubt “that the defendant was predisposed to

commit the charged offense.” Dickens, 524 F.2d at 444.

The trial judge permitted the defendants to present

evidence and argue lack of predisposition, and instructed

the jury that, if it found lack of predisposition on the part

of Garrett or Moore, it must acquit such defendant of the

charged offense.° By convicting the defendants, the jury

rejected the entrapment defense.

On appeal, the issues raised relating to entrapment are:

A. As a threshold issue, the government contends that,

even if error was committed in the respects contended by

6. The jury charge (to which the parties do not now object on

appeal) reads in part:

The defendants assert that they were the victims of entrapment

as to the offenses charged in the indictment. Entrapment occurs

when the criminal design originates with officials of the govern-

ment and they implant in the mind of an innocent person the

disposition to commit the alleged offense and induce its commis-

sion in order that they may prosecute. Where a person has no

previous intent or purpose to violate the law, but is induced

or persuaded by law enforcement officials or their agents to

commit a crime, he is a victim of entrapment, and the law as

a matter of policy forbids his conviction in such a case.

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 ppl is not

entrapment. For example, it is not entrapment for a a

agent to pretend to be someone else and to offer, ei directly

or through an informer or other decoy, to engage in an unlawful

transaction. Law enforcement officials are not precluded from

utilizing artifice, stealth and stratagem, such as the use of decoys

and undercover agents, in order to apprehend persons engaged

in criminal activities, provided that they merely afford oppor-

tunities or facilities for the commission of the off

predisposed or ready to commit it.

23a

the defendants, it was harmless. The government argues

that the entrapment defense was not available to the

defendants under the facts presented, and therefore the

district court improperly submitted the defense to the jury.

B. Moore complains of the introduction of a redacted

tape from which was excised overwhelming inducements

offered Moore by government witnesses.

C. Moore complains of the exclusion by the trial court

of some “lack-of-predisposition” witnesses offered by him.

D. Moore contends that his “lack-of-predisposition”

defense was severely prejudiced by the admission into

evidence of two tapes of conversations between Hauser

and Grubbs (the latter not called to testify), which more-

over violated his Sixth Admendment rights since he was

unable to cross-examine Grubbs as to his characterization

of Moore as a labor leader who would “deal”.

E. Garrett contends that the evidence shows that he

was entrapped as a matter of law and that the district

court erred in not granting his motion for a directed

verdict of acquittal.

A. Availability of the Defense

The government contends that none of the defendants’

contentions of error should be considered, because Garrett

and Moore were incorrectly permitted by the district court

to raise before the jury the defense of entrapment. The

government contends that a criminal defendant cannot, as

a matter of law, assert entrapment unless he admits com-

mitting the charged offense. Garrett and Moore reply that

their defense that they lacked the intent to bribe Council-

man Westmoreland is not inconsistent with the defense

that, if their activity in approaching Westmoreland for

help with the Prudential contract and subsequently mak-

24a

ing a campaign contribution is indeed criminally culp-

able, they were nonetheless entrapped into doing so by

the government agents’ inducements.

In this circuit, the general rule is that the defendant

may not deny the commission of the acts on which crim-

inal liability is predicated and simultaneously claim that

he was entrapped to perform those acts. “The rationale

for the rule appears to be that to deny the very acts upon

which the prosecution is predicated and at the same time

to plead the defense of entrapment, which assumes that

the acts charged were committed, is too inconsistent.”

United States v. Greenfield, 554 F.2d 179, 182 (Sth Cir.

1977). The early decisions on this issue recognized that

for practical reasons a defendant could not generally deny

the substantive charge and raise entrapment, because in

most cases, a defendant proving that he did not commit

the criminal act could not consistently also prove that the

government induced him to commit the act he denies

occurred. Sears v. United States, 343 F.2d 139, 143 (Sth

Cir. 1965); Henderson v. United States, 237 F.2d 169,

173 (Sth Cir. 1956). See also Hamilton v. United States,

221 F.2d 611, 614 (Sth Cir. 1955) (defendant permitted

to deny charge and assert entrapment; the court noted,

however, that the defense of entrapment “assumes that

the act charged was committed”).

In both Sears and Henderson, however, this court recog-

nized exceptions to the general situation and permitted

dual defenses where, under the particular facts, “proof of

entrapment [is not] contrary or repugnant to proof that

the defendant is otherwise not guilty.” Henderson, supra,

237 F.2d at 173. In Henderson, the defendant was per-

mitted to admit to operating an illicit still, deny knowl-

edge of (and thus participation in) a larger conspiracy,

and “still defend on the ground that such overt acts as he

25a

did commit were done as a result of entrapment.” /d." In

Sears, the defendant, a sheriff, was charged with participa-

tion in a conspiracy to manufacture and sell illegal liquor

by accepting a bribe; he was able to deny acceptance of

the bribe and all knowledge of the conspiracy but receive

a jury instruction on entrapment because the govern-

ment’s own case in chief injected substantial evidence of

entrapment in the case. Sears, supra, 343 F.2d at 143.

Although in Henderson we stated that “it is generally

held that inconsistent defenses may be interposed in a

criminal case”—and thus declined to determine “[w]hether

a greater degree of inconsistency in defenses [than pre-

sented in that case] should be permitted,” id., 237 F.2d

at 173—subsequent decisions have recognized the re-

quirement of consistency of defenses; see, “where a de-

fendant does not have to take an inconsistent position, he

is not precluded from invoking entrapment as a defense,”

United States v. Harrell, 436 F.2d 606, 612 (Sth Cir.

1970). Nevertheless, this court has determined that gener-

ally “the defense of entrapment is unavailable unless the

defendant admits the facts upon which the prosecution is

based.” United States v. Crossman, 663 F.2d 607, 610

(5th Cir. 1981). See also United States v. Webster, 649

F.2d 346, 351 n.10 (Sth Cir. 1981) (en banc) (dicta);

McCarty v. United States, 379 F.2d 285, 286-87 (Sth

Cir.), cert. denied, 389 U.S. 929, 88 S.Ct. 291 (1967);

Beatty v. United States, 377 F.2d 181, 186 (Sth Cir.),

reversed on other grounds, 389 U.S. 45, 88 S.Ct. 234

(1967). One basis for this approach seems to be that

7. The court explained that it was proper for the defendant to

argue: “ ‘I did not go so far as to become a party to the conspiracy,

but to the extent that I did travel down the road to crime, I was

entrapped[,’ for] the defenses do not seem to us so

proof of the one necessarily disproves the other.” Henderson, supra,

237 F.2d at 173.

26a

inconsistent defenses will tend to “confuse” the jury, see

Sears, supra, 343 F.2d at 143, due to the “inherent incon-

sistency” in saying at the same time that “I didn’t do it,”

and “the government tricked or seduced me into doing

it.” United States v. Brooks, 611 F.2d 614, 618 (Sth

Cir. 1980).°

The rule that defendant must admit to the facts or acts

constituting the charged offense is now firmly entrenched

in this circuit. The most recent decisions of this court

present some confusion, however, as to whether the de-

fendant, while admitting to his involvement in the acts

underlying the offense, may assert entrapment and argue

that he does not possess the requisite knowledge or intent

to render his conduct culpable. See United States v. Hill,

626 F.2d 1301, 1303 n.2 (Sth Cir. 1980) (noting the

“disarrary” of decisions in this circuit, but not addressing

the “controversy” given the facts of that case). We find

that the better approach, more in accord with the case

law, is to determine whether the defendant’s asserted

defense is necessarily inconsistent with an allegation of

entrapment.

In United States v. Greenfield, supra, 554 F.2d at 182,

we discussed the Sears and Henderson decisions, conclud-

ing that the defendant, a doctor charged with illegally

prescribing controlled drugs, should be permitted to deny

commission of any crime and also raise the defense of

8. However, the now “fundamental rule that a defendant may not

alternatively rely on inconsistent defenses of entrapment and denial

of the commission of the crime has come under increasing attack,”

United States v. Hill, 626 F.2d 1301, 1303 n. 2 (Sth Cir. 1980).

See also United States v. Daniels, 572 F.2d 535, 542 (Sth Cir. 1978)

(criticizing the Fifth Circuit’s position). The Ninth Circuit has re-

jected the inconsistency defense theory as “seriously infirm,” since,

as the Henderson court pointed out, criminal defendants are per-

mitted to raise inconsistent defenses in other contexts. See United

States v. Demma, 523 F.2d 981, 982 (9th Cir. 1975) (en banc).

27a

entrapment. We found that the doctor’s claim of legiti-

mate medical purpose and lack of culpable knowledge

or criminal intent—while admitting to the acts of pre-

scribing the drugs—was not so “impermissibly inconsist-

ent” as to preclude his argument that “to the extent that

the jury may find culpability on his part, he was en-

trapped.” 554 F.2d at 183. See also United States v.

Smith, 407 F.2d 202, 204 (Sth Cir. 1969), cert. denied,

397 U.S. 949, 90 S.Ct. 972 (1970) (defenses of lack

of guilt and entrapment permitted as not inconsistent

where the defendant contended that he was an agent

rather than principal, but that whatever role he played

was a result of entrapment).

In the present case, similar to Greenfield, Garrett and

Moore deny wrongful intent to bribe Westmoreland; they

instead argue that the payment, an undisputed act, was an

innocent campaign contribution made after the city coun-

cil voted to accept the Prudential Insurance plan as pro-

pounded by the Texas Municipal League. We agree with

the trial judge that these alternative defenses, both founded

on identical facts, are not impermissibly inconsistent.

Two cases after Greenfield do not compel us to adopt

a contrary analysis. In United States v. Brooks, 611 F.2d

614, 618 (Sth Cir. 1980), citing Greenfield, we stated

that in light of the defendant’s defense of entrapment to

sell firearms illegally, it is doubtful whether the court

should consider his alternative defense that “he had no

intention to violate the law because he did what was

customary and what was, in his opinion, permissible.”

611 F.2d at 618. Regardless of the court’s doubt as to

the efficacy of these alternative defenses, it emphasized

that the contention of lack of culpable knowledge or

intent was not raised until closing argument and that

the evidence as to the element of culpable intent was

28a

overwhelming. 611 F.2d at 617, 619. A panel of the

Former Fifth Circuit, Unit B, cites solely to Brooks in

rejecting the defendant’s defense of entrapment to the

charge of possession with intent to distribute cocaine,

where the defendant contended during trial that he had

no intent to distribute. United States v. Nicoll, 664 F.2d

1308, 1314 (Sth Cir. 1982). It is arguable that the

precedential value of Nicoll is minimal with respect to

denying alternative defenses, however, because the court

also notes that the defendant failed to assert the entrap-

ment defense at trial, and thus cannot raise it for the

first time on appeal.

We conclude that the defendants’ defense of non-guilt

—that they intended to offer money to the city councilman

as a political contribution and not as a bribe to obtain

favors—is not inconsistent with the defense that, whatever

the legal characterization of the payment, they were en-

trapped into making it by the government agents. We

therefore turn now to the defendants’ contentions con-

cerning the trial court’s rulings with respect to the entrap-

ment defense.

B. Introduction of Redacted Tapes

Moore contends that the trial court erred in refusing

to permit him to play before the jury a portion of a

government tape-recording of a meeting between him

and government informant Hauser and F.B.I. agent Wacks

in which the government agents offered to pay Moore

$600,000 in commissions, to use their influence to place

Moore’s son in Georgetown Law School and to help

Moore become president of International Union of Oper-

ating Engineers, in return for Moore’s use of union, politi-

cal and business influence to obtain insurance contracts

for Prudential. Moore was able to cross-examine the

29a

agents regarding all of these inducements, but he argues

that it was necessary for the jury to hear directly the

taped version for their consideration of his lack of pre-

disposition. Moore suggests that the trial court’s ruling

was erroneously founded on a conclusion that evidence

of these inordinate inducements was not admissible with

respect to the jury issue of predisposition.

We disagree. The trial court stated that it disallowed

the playing of the redacted portion because it also con-

tained references to a proposed insurance deal in Austin

that implicated other individuals and that was not the

subject of the charged offense. Because Moore had the

opportunity to elicit all of the desired information on

cross-examination, he was not prejudiced by the trial

court’s determination to exclude the tape itself.

Moore also urges that because the government was

permitted to play another part of the same tape, Fed. R.

Evid. 106 requires that when one party introduces part

of a writing or recording, an adverse party may require

introduction of any other part of the recording that

“ought in fairness to be considered contemporaneously

with it.” This “completeness doctrine,” however, does not

require introduction of portions of a statement that are

neither relevant to nor explanatory of the admitted pas-

sages. United States v. Marin, 669 F.2d 73, 84-85 (2d

Cir. 1982). Here, the redacted portion contained irrele-

vant matters (excluded at least in part due to possible

prejudice to Moore by including wrongdoings that were

not the subject of the trial), and Moore elicited the rele-

vant information through cross-examination, such that

“fairness” did not require playing of the entire tape.

C. Exclusion of “Predisposition” Witnesses

At the conclusion of the defendant Moore’s testimony

30a

at the close of this long trial, the district court denied

Moore’s courisel additional witnesses tendered on the issue

of “predisposition.” Moore contends that these rulings

prejudicially hampered his defense on that issue.

The first contention is with regard to ten listed wit-

nesses, public officials, who were to be called to give

testimony that they had had dealings with Moore over

a period of years in the political and labor fields and that

they had never known him to do any improper, illegal or

immoral act, or to attempt to commit any offense in the

nature of bribery. By this time, during presentation of the

defense case, at least eight witnesses had already testified

that Moore, to their knowledge, had never taken a bribe

and had an unblemished reputation. In denying the

proffered testimony, the district judge, inter alia, char-

acterized these tendered witnesses as “additional charac-

ter witnesses” and ruled that he had already “allowed

ample character witnesses for a case of this kind.” We are

unable to find an abuse of the district court’s discretion

under Fed. R. Evid. 404 to allow additional, cumula-

tive testimony of this nature. Accord, United States v.

Haynes, 554 F.2d 231, 234 (Sth Cir. 1977).

Additionally, Moore also objects to the trial court’s

rejection of a proffer of the testimony of a lawyer, Ray,

who was prepared to testify that Moore consulted him

about the legality of accepting insurance commissions for

his efforts regarding the City of Houston contract. Moore

argues that this evidence would have shown his desire

to abide by the law and thus would have proven lack of

predisposition to commit the charged offense. Moore had

already testified at trial, however, that he had consulted

with an attorney who had told him that it was legal for

him to receive the commission, so that the substance of

_———— ——- - \

3la

Ray’s proposed testimony was before the jury. More-

over, the attorney’s opinion concerned the propriety of

receipt of the commissions by Moore, a person not

licensed to sell insurance; while the subject at issue at

the trial was the legality of the payments to Westmore-

land, as to which the attorney’s opinion was marginally,

if at all, relevant. We conclude that the district court

did not abuse its discretion by excluding Ray’s testi-

mony.

D. Introduction of the Grubbs Tapes

Moore contends that the introduction into evidence of

two taped conversations between Harold Grubbs and

government witness Joseph Hauser, is reversible error

because the government tapes contain prejudicial hearsay

concerning Moore’s reputation. These tapes contain

Grubbs’ assertions that Moore, as a union official, would

be a likely candidate to help Hauser obtain insurance

business. At many points in the tapes, Grubbs describes

Moore as someone who will “deal”.

At trial, Moore argued that introduction of these

Statements about his character was prohibited by United

States v. Webster, 624 F.2d 346 (Sth Cir. 1981) (en

banc), in which this court held that hearsay evidence of

reputation is generally inadmissible for the government to

show the defendant’s predisposition and thus rebut an

entrapment defense. Moore also urges that his Sixth

Amendment confrontation rights were violated because

Grubbs was unavailable for cross-examination with re-

spect to the allegedly hearsay statements.

Before introduction of the tapes containing the ob-

jectionable statements, the trial court gave a cautionary

instruction to the jury that Grubbs was unavailable to

32a

testify and that his statements were not admissible to

show Moore’s bad character, but only to show why

Hauser approached Moore. The court reiterated this

warning during the final jury charge. The government argues,

inter alia, that the tapes—constituting a half day of the

jury’s proceedings—were properly admitted for the limi-

ted purpose to show why the government agents acted as

they did in meeting with Moore.

Grubbs’ statements about the defendant Moore in the

Grubbs-Hauser tapes were clearly inadmissible hearsay,

both as to his predisposition, see Webster, supra, and as

declarations by a coconspirator (since Moore had not

even been approached yet to join the alleged conspiracy).

We doubt that the statements were admissible over

Moore’s objection for the proffered purpose of showing

why the government’s witnesses approached Moore, be-

cause the relevant purpose for their admission—that the

government agents had approached Moore on Grubbs’

recommendation—could have proved by testimony to

this effect without embellishment by the lengthy and many

references to Moore in the prejudicial and uncross-exam-

ined statements of Grubbs that Moore was one who

would “deal”. Fed. R. Evid. 403.

We need not expressly rule on this issue, however, be-

cause if there was error, it was hermless. In the first

place, the trial court expressly and repeatedly cautioned

the jury against giving credence to Grubbs’ statements.

Additionally, over the government’s hearsay objection,

the district court permitted Moore to testify at length

as to Grubbs’ representations to him about the Prudential

transaction and about Grubbs’ dealings with Hauser, R.

41, p. 187 et seq., which clearly developed Moore’s de-

fense that he thought he was doing nothing illegal when,

33a

induced by the government agents, he went to work to

earn commissions for himself from Prudential and polliti-

cal contributions for labor and its friends.

Weighing even more heavily in favor of the harmless-

ness of the error, Moore’s “intent and predisposition to

commit the acts charged was established largely by re-

corded evidence of his own statements.” United States v.

Howell, 664 F.2d 101, 105 (Sth Cir. 1981) (holding

under virtually identical circumstances and contentions

that the error was harmless). The Grubbs-Hauser tapes

were played on the ninth day of evidence taken during

the twenty-seven days of trial. Evidence adduced after

these tapes, primarily in the form of Moore’s conversa-

tions with Garrett and the government agents, showed

that Moore readily and immediately joined the insurance

scheme and was active at every stage of the events. Con-

sidering the entire record, we are unable to find that the

Grubbs’ references to Moore in the tapes, which the

jury was repeatedly cautioned by the district court

not to credit for their truth, caused prejudice to any

appreciable degree to Moore’s entrapment defense.

E. Entrapment as a Matter of Law

Garrett contends that, regardless of the jury determina-

tion of guilt, he was entrapped as a matter of law. He

argues that the government failed to offer proof that

Garrett was predisposed to engage in a bribery-type

offense and that his acts were a product of this predisposi-

tion rather than the activity of the government agents.

In particular, Garrett argues that he initially refused to

accept any payment from the agerts, that he told the

government agents that he did not wish to do anything

illegal or fraudulent, and that the government agents

“an

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34a

suggested that he make the contribution to Westmoreland.

At trial, Garrett testified that he sought to use his political

influence only, and that he told Westmoreland that the

pay-off was a political contribution made after the City

Council vote on the insurance contract.

“It is well-settled that the question of entrapment, if

fairly raised, is one for the jury.” United States v. Lentz,

624 F.2d 1280, 1286 (Sth Cir. 1980). See generally

United States v. Russell, 411 U.S. 423, 436, 93 S.Ct.

1637, 1645 (1973). In the present case, as we have

stated, the defendants met their initial burden of produc-

tion to present evidence that the government agents in-

duced them to commit the charged offense. Having put

forward the issue of entrapment, Garrett argues there was

no evidence of predisposition and thus entrapment existed

as a matter of law.

We disagree. Although it is unclear from the first of the

taped meetings whether Garrett was offered any cash by

Hauser, Wacks or Montague, he discussed a 10% com-

mission split with Moore, and originated the idea of call-

ing Councilman Westmoreland. Subsequently, he stated

that he was not opposed to “spending a few dollars. . .

to motivate the works for us” and discussed “deliveries”

of funds to Westmoreland. These activities, along with

Moore and Garrett’s discussion of prior “cuts on deals,”

constituted evidence from which a jury could determine

the existence of predisposition to engage in the transac-

tions that resulted in the Travel Act offense. As stated in

United States v. Dickens, supra, 524 F.2d at 445

a jury may appropriately consider the defendant’s

conduct and statements subsequent to his initial con.

tact with the government agent, as well as proof of

his state of mind before the contact was made, to

eh?

35a

determine whether the accused should be classified

as an “unwary innocent” or an “unwary criminal.”

Because the government raised sufficient evidence to

place the issue of predisposition before the jury, and there

is no objection to the jury instruction, we do not “usurp

the jury’s proper role” to determine whether entrapment

was present. United States v. Anderton, 679 F.2d 1199,

1202 (Sth Cir. 1982). The evidence Garrett presented

characterizing his activities as motivated by innocent in-

tent is not “so overwhelming that it is ‘patently clear’ or

‘obvious’ that [he] was entrapped as a matter of law.”

Lentz, supra, 624 F.2d at 1287. As in Lentz, the jury

could find with respect to the evidence that Garrett was

a willing, knowing and voluntary participant in an illegal

scheme, even though that scheme was conceived and in

part implemented by law enforcement agents. /d.

Ill. Outrageous Government Conduct

Garrett, joined by Moore, argues that the conduct and

degree of involvement of the government agents in this

case is so outrageous as to violate due process guarantees

of the Fifth Amendment. He asserts, as in the entrapment

defense, that the crime allegedly committed would not

have occurred but for the actions of the government

agents. Additionally, Garrett urges that the government’s

actions created outrageous risks of harm: that the City

of Houston purchased an insurance policy for its em-

ployees based at least in part on the efforts of the defend-

ants and the government agents (risking their obtaining

inferior coverage) and that Garrett’s life was endangered

because the government’s activities entangled him with a

Carlos Marcello, alleged to be an underworld leader, who

allegedly had an interest in the Hauser insurance scheme.

36a

In Hampton v. United States, 425 U.S. 484, 96 S.Ct.

1646 (1976), five justices of the Supreme Court’ indi-

cated that in some circumstances government involve-

ment in the charged crime could be so excessive and out-

rageous as to bar prosecution of the private citizen. In

United States v. Tobias, 662 F.2d 381, 386-87 (Sth Cir.

1981), this circuit recognized the defense, indicating,

however, that a due process violation will be found in

only “the rarest and most outrageous circumstances.” /d.

at 387. Subsequently, in United States v. Nicoll, 664

F.2d 1308, 1314 (Sth Cir. 1982), this court recognized,

but rejected, the defense where the defendant sought to

purchase cocaine from the government.

In Tobias, supra, the court held that there was no out-

rageous government conduct where the Drug Enforce-

ment Administrator (DEA) established a chemical supply

company to detect the manufacture of illicit drugs, and

urged the defendant to manufacture amphetamines after

he had cancelled his order for supplies to produce cocaine.

The court determined that the case presented the “outer

limits” to which the government could go in its attempts

to ferret out and prosecute crimes, but found that under

the totality of the circumstances, the defendant was a pre-

disposed, active participant in a scheme to manufacture

an illegal drug and was motivated exclusively by the

desire to make money. 662 F.2d at 387. In Nicoll, the

government’s conduct was found not to be egregious

9. See 425 U.S. at 491, 494, 96 S.Ct. at 1650, 1652 (Powell, J.,

joined by Blackmun, J., concurring); 425 U.S. at 495, 96 S.Ct. at

1652 (Brennan, J., joined by Stewart and Marshall, J.J., dissenting).

At least three other circuit courts have adopted this view. See United

States v. Leja, 563 F.2d 244 (6th Cir. 1977), cert. denied, 434 US.

1074, 98 S.Ct. 1263 (1978); United States v. Twigg, 588 F.2d 373

(3d Cir. 1978); Greene v. United States, 454 F.2d 783 (9th Cir.

1971).

Ped

xe Orson

37a

where the DEA merely initiated contact with the defend-

ant, who then actively negotiated the cocaine deal. 664

F.2d at 1314.

Under Tobias and Nicoll and the prevalent jurispru-

dence, we cannot find that the government’s conduct was

so egregious and outrageous as to make the defendants’

convictions subject to attack as a denial of due process.’®

Conclusion

Because there was federal Travel Act jurisdiction in

the present case, and the jury could properly determine

that Garrett and Moore were not entrapped by virtue of

government misconduct, we AFFIRM their convictions

below.

AFFIRMED.

10. Although this conclusion seems required by precedent of this

circuit, the author of this opinion, expressing views personal to him

alone of the panel, insofar as he knows, feels obliged to note that,

were he writing on a clean slate, he would feel that the defendants’

due process rights were violated by their conviction of government-

created crimes spawned from an enterprise of this magnitude formed

bribery offense—itself spawned and created by governmental induce-

ments of this nature and magnitude—is an unjus

the Congressionally-intended reach of the Travel Act, especially where

federal jurisdiction is founded upon a single interstate call

to a government agent (where the government had itself initiated the

initial interstate contact with the Texas defendant). Again, however,

I feel compelled by the precedents of this circuit to find Travel Act

jurisdiction in the present case

38a

No. 82-2147, USA v. JOHN GARRETT and

L. G. MOORE.

GARWOOD, Circuit Judge, Specially Concurring:

I concur in all of Judge Tate’s excellent opinion for the

Court except Part II.A. thereof (“Availability of the

Defense”). I do not reach the difficult issues concerning

the availability of the defense of entrapment dealt with in

Part II.A. of the opinion because resolution of those issues

is not necessary to and does not affect the disposition of

this appeal.*

* Nor do I have occasion to take any position respecting the

matters commented on in note 10.

39a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CRIMINAL NO. H-80-74

UNITED STATES OF AMERICA, Plaintiff

L. G. MOORE, Defendant.

CRIMIINAL NO. H-81-74

UNITED STATES OF AMERICA, Plaintiff

JOHN GARRETT, and L. G. MOORE, Defendants.

ORDER

Pending before the Court are various defense motions

in the above styled and numbered causes.

Both Moore and Garrett have filed motions to dis-

miss on the basis of manufactured federal jurisdiction,

Defendant Moore has also moved to dismiss on the basis

of police overinvolvement in the alleged conspiracy.

The leading Fifth Circuit case on Travel Act juris-

diction is United States v. Perrin, 580 F.2d 730 (Sth Cir.

1978). In that case the defendants were convicted of

violating the Travel Act when they used facilities in

interstate commerce to promote the commission of a sub-

stantive crime (commercial bribery). The court held,

40a

inter alia, that the use of interstate facilities need not be

essential to the illegal scheme where the defendants

caused the use in order to further an unlawful activity.

Perrin concluded that when the federal element is fur-

nished solely by undercover agents, a stricter standard

would be applicable; but the court went on to say that

it could not condemn the fact that a government informer

was involved in the interstate element of the crime so

long as the government informer did not unilaterally

supply the interstate element.

In this case the Government will offer evidence that

its investigation was national in scope and that the inter-

state element was supplied by the Defendants’ activities.

The Court has reviewed the record and applicable au-

thorities and is of the opinion that Defendants’ motions

to dismiss on the basis of manufactured jurisdiction

should be, and are DENIED.

Defendant Moore’s claim of police overinvolvement

is based on his contention that the investigation made the

basis of this action was “active” rather than “passive;”

and that the involvement of the government in the case

was sufficiently egregious to warrant dismissal. Moore

relies in part on language from Justice Powell’s con-

curring opinion in Hampton v. United States, 425 U.S.

484 (1976). In that case Justice Powell intimated that

a case might appear which would warrant dismissal on

the basis of outrageous government conduct (police over-

involvement ).

The Fifth Circuit recently declined to formulate a

per se rule with respect to objective entrapment. United

States v. Gray, 626 F.2d 494 (Sth Cir. 1980). In that

4la

case the court concluded that an informant’s activity

merely eased the way for the conspiracy when the in-

formant suggested the scheme and aided in its furtherance

by providing air transportation for a marijuana smug-

gling operation.

Defendant also relies on Williamson v. United States,

311 F.2d 441 (Sth Cir. 1962). In Williamson, the

government’s payment of a contingent fee to an informer,

conditioned on his “making” a given individual, was

held to be entrapment as a matter of law. The case was

restricted to its facts in United States v. Onori, 535 F.2d

938, 942-43 (Sth Cir. 1976), where the court held that

payment of an informer did not constitute entrapment as

a matter of law when the informer was not directed to

make a case against a specified individual. Following

Onori, it is clear that Hauser’s employment as a Govern-

ment informer did not amount to entrapment as a matter

of law.

After considering the evidence and arguments of coun-

sel, L. G. Moore’s motion to dismiss on the basis of police

overinvolvement is DENIED.

[The remainder of the opinion is irrelevant to the issues

before this Court. Both defendants later moved for di-

rected verdict based on the same issues. This was denied

without further opinion.]

Done at Houston, Texas, this 20th day of October,

1981.

/s/ NORMAN W. BLACK

Norman W. Black

United States District Judge

42a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 82-2147

D. C. DOCKET NO. CR-H-81-74

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN GARRETT and L. G. MOORE,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Texas

Before WISDOM, TATE and GARWOOD,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on

appeal and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

September 19, 1983

ISSUED AS MANDATE: Dec. 12, 1983.

43a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 82-2147

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN GARRETT and L. G. MOORE,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Texas

ON PETITIONS FOR REHEARING AND

SUGGESTIONS FOR REHEARING EN BANC

(Opinion September 19, 5th Cir., 1983, ___F.2d____.)

(November 22, 1983)

Before WISDOM, TATE and GARWOOD,

Circuit Judges.

PER CURIAM:

The Petitions for Rehearing are DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc, (Federal Rules of Appellate Pro-

cedure and Local Rule 35) the Suggestions for Rehear

ing En Banc are DENIED.

** *

ENTERED FOR THE COURT:

Signature Illegible

United States Circuit Judge

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