# Respondents Brief — Mathews v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0982%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1988 - **Citation:** 485 U.S. 58 ## Text No. 86-4108 Iu the Supreme Court of th 1h (oer? : VLA POR THE Ut NITt BRIPS we n Unife Mites ter Db STATES OLESTION PRESENTED _ - - +s | . ;™ STATUTORY PROVISION INVOLVED 18 U.S.C. 201(2) provides: Whoever, being a public official, former pub- lic official, or person selected to be a public ofh cial, otherwise than as provided by law for the roper discharge of official duty, directly or in- directly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him; Shall be fined not more than $10,000 or im- prisoned for not more than two years, or both. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Wisconsin, peti- tioner was convicted of accepting a gratuity as a public official, in violation of 18 U.S.C. 201l(¢). He was sentenced to a three-year term of probation. The court of appeals affirmed (Pet. App. 101-108). 1. The government’s evidence at trial established that petitioner was responsible for administering the so-called “SA program” of the Small Business Ad- ministration (SBA) in Milwaukee, Wisconsin. That program was designed to aid small businesses owned by minorities and economically disadvantaged indi- viduals. Under the program, the SBA would obtain government contracts and subcontract them to par- ticipating firms; it also would provide assistance to the firms in performing the contracts, and when nec- essary it would help participating firms obtain pay- ment in advance of performance. Pet. App. 102; Tr. 124-125, 127-128, 130-131, 136-137. Until the time of his arrest on April 24, 1985, petitioner had pri- mary responsibility for obtaining 8A program con- tracts and advance payments for SBA client firms in Milwaukee, and for assisting those firms with the associated paperwork. Tr. 124-125, 127, 151, 15o- 137. One of the long-term participants in the 8A pro cram was Midwest Knitting Mills (Midwest). As early as 1979, petitioner had assisted Midwest's president, James DeShazer, in obtaining financit for his company (J.A. 116). By 1983, petitioner was Midwest’s principal contact at the SBA (id. at 10- ll). Yet beginning in 1982, petitioner repeated); asked DeShazer for money. When DeShazer was seeking bank financing in that year, petitioner de- manded a $1,200 payment to “get you a bank” (J.A. 16). DeShazer did not make that payment, but in February 1983 petitioner called DeShazer to re quest a $1,500 loan, which petitioner said he needed to help pay his daughter’s college expenses. DeShazer made the loan, which was not repaid (id. at 16-18) Later that year, petitioner requested an additional $1,200 loan to help meet his mortgage payments. DeShazer again lent the money to petitioner, and again was not repaid (id. at 18-19). In February 1984, petitioner and DeShazer met discuss Midwest’s failure t receive advance ments from the SBA that were necessary for the formance of its contracts. At that meeting, petitioner asked DeShazer for a $3,000 personal loan (J.4. 12 15). Although DeShazer refused to make the pay- ment at that time, petitioner repeated his request fo the money on several occasions between February 1) ~ >) ( rn? p (>? ? dd Tig? Si) 198 { J \ ‘()) he te? t . | Or These ? T 1984 ‘ ~ TT) ry) [) Q} y Tif ’ ) fT. q : ‘ mm f i pe one on | f rel i and July of 1984 (id. at 20, 85, 94). During that same period, DeShazer noted that petitioner had failed to process his requests for payment on Mid- west’s 8A contracts (id. at 27). In October 19354, DeShazer complained to representatives of the De- fense Department, one of his customers, that he be- lieved he was being denied advance payments because he would not make payoffs to petitioner (id. at 23- 24). The Defense Department in turn reported this allegation to the Federal Bureau of Investigation (FBI), which in early 1985 asked DeShazer to assist an investigation by recording his conversations with petitioner. DeShazer agreed. /d. at 25-27. DeShazer and petitioner met in February 1985 (J.A. 29). At that meeting, DeShazer offered peti- tioner the $4,200 he had previously requested if petitioner would agree to process Midwest’s applica- tion for advance payments.’ DeShazer told petitioner that he “want[fed] to give you that forty-two hun- dred dollars, if you can assure me that this is going to solve my problems.”’ Petitioner responded: “sure, I am sure that I can co that,” adding that the pavy- ment would “solve the problem.” J.A. 30-31. In the following weeks, petitioner and DeShazer spoke many times about Midwest’s financial problems (id. at 32). The two met again on April 8 in DeShazer’s car. After a discussion of DeShazer’s prospects for obtain- ing financing for his company, petitioner asked, “what can you do for me?” (see id. at 125; Tr. 508). Petitioner then referred to DeShazer’s statement in February of that year that he had recently come into a large sum of money. DeShazer responded that he The $4,200 represented the $1,200 petitioner had requested n 1982 and the $3,000 he had requested in February 1984 would pav petitioner in two installments of $2,100 each And DeShazer agall ( ‘pla ned to pet tione “the critical situation that I was in, * * * I kept saying, ate you voing to, can You tel] me once GO this. this nightmare that I have is over? And he told me that it would be.” /d. at 33-59. Petitioner and DeShaz " OK ry tele} ne April 25. LOSS. and agree that DeShazer would \fter an exchange of calls the following mom in they agreed to meet in a hotel restaurant (id. at 99- 101). At the hotel, petitioner asked for the money after obtaining petitioner's assurances that the pay ment would end Midwest’s financiai problems, Di Shazer passed the money under the table (7d. at 4% 19) Petitioner was arrested as he left 9 At the outset of trial, the district court rule that petitioner would not be nermitted to argue et} trapment as a defense The court explained that a defendant is entitled t a ue ent ment n| I “concede! s | that what he lid Vas Wron ~ £2.25 > ) Because petitioner denied accepting the payment fro DeShazer for the performance of his official duties : ; . , — . ; . ‘ . +7 , ] and thus denied having the requisite mental state fo » ¢ ; » 4 ° . ‘ ¢ ' . violation of 18 U.S.C. 201(¢) tne court ruied tnat | | | , » " nNeril oner cout not rery (>? eat cegtTel ~ tH QO] eENnNTranp " > ' ? { ‘ | ; i est } q pe ©) ‘ ‘ TY i L} ’ , ‘ ; ment (id. at 5-4) he cou pet tioner "TO seus. ¢( IL? | t Lneor" the acts of the |petitioner| were ment, Mr. DeShazer, and to develo} of [his] first line of defense” at tri: Petitioner subsequently testified disputed some of the particulars of Case, he acknowled; ec| t} al he had from DeShazer in 1985 (J.A. 119) edged t hat he had accepted DeShazer’ in February 1985 “¥ at 122); thi sub ect was br ache: subsequenth that he was “‘|still] thames in” the procure yt that as the governn He also acl S otteay at when 125): and that he had brought up the topic of Shazer's — ” their April & meeting, stating ‘he would s he willing to accept” the mon at 125: see ") at 123: Tr. 508-509). Petitione) acknowledged that his discussions about the payment generally followes west’s financial problems. J.A 124-125, AE S? 100 50%. And petitioner conceded that from DeShazer in an _ under-the-t April 24, 1985, while telling DeShaz the payment to anyone (J.A. 126-127 contended, however, that he had vi | a personal one that Was not connect th DeSha | talk about he took ance of his job (id. at 127-150). He attribut two-month delay between the origi? s of the Govern- overt acts of this princip|/al] witnes: par vent’ = (>) Mid- TI able payn nent on er not to ment ] 129). Petitione { vec the al ec LO tne periorm- Ti Lne loan and the delivery of the money to his doubts DeShazer actually had the money or was “really sin- eere about the loan” (id. at 126: see id. at 122, 128, 125, 126). At the close of the evidence the district court de- clined to give an entrapment instruction. Petitioner arcued that the court’s ruling on that issue was a eround for a mistrial. The government opposed 1 motion for two reasons, arguing (1) that a defenda1 may not both deny commission of the offense and argue entrapment, and (2) that petitioner had not in any event, adducea . “ -ient evidence of entrap- ment to warrant an instruction on the issue (T) 622). The district court found it unnecessary to address the government’s second argument. Instead the court ruled that petitioner was not entitled to an entrapment instruction because he “elected * * * to deny the intent and the other elements in the |[of- fense]” (J.A. 131). The court went on to note, how- ever, that the evidence of entrapment was “shaky at best.” adding that “it would normally require more evidence than what is presently in the record on which to predicate an entrapment instruction” (ibid.). The jury returned a verdict of guilty 3. The court of appeals affirmed, holding that peti- tioner was not entitled to raise an entrapment de- fense (Pet. App. 101-108).° The court explained that Af po pel T ne? ippe rs } T% ’ ‘ ‘ 4 ‘ + ‘ ve +} +» ‘ a4 4 . . 4 he ; ’ ry pe Ty 7 ed th " ‘ ‘ +» ipme! + ~ ie? ( \ | 14 Pe 1 ! not D t { f f " +, ryr ‘ ? ‘ +} + he ry ‘ ‘ } + | eX led i 2 | « | t (*¢ f t} s rm) neo ae : ree | ? ) nat c F ) ch ’ + +} ‘ ‘ + + ; +} " . ‘ +, pment + 4 e } ox ‘ e ‘ + ‘ Seventh Circu recedent “requir[es] a defendant t ; { ’ , ft » He ' ian ali elements O ne crime vetore dvelng allowed ’ ; > ; ; ; + + yet LO Ca env_rapmen ' at 105) Ir Uf) Cou! Ol : ‘ : lof . ; Sones appeais View i‘winen a aetendan pieads entrap- mort ne + Ic Ty Tr } riTns lon ne |} (} erin na *y , +” > > > nits y) ¢ + ~ Tre {, , ©) ~ (iPCeT) cy? | na vy - " Té ' ? Q " ies ’ " ,) ry y cyt Tne a. i * ** ’ ’ rT) : - te} if} + ; J is lot ’ j ed ste * ‘ sf . ‘ 7 * ) . 1 +] > > ; ‘ me nceonsistent f S¢ VN [ ne aerense na ii¢ OTs 7 } Q) ’ gal e } ~ t " 9 nition? ‘ 17 " a24 Tr ’ Tr uw y " ,ccyy ' ’ ) ’ >| ‘ il i | =17 lita . Dot 1()° ‘ it } i » | > st ty SUMMARY OF ARGUMENT ‘ 1") + ys) ; Feast. ? rTranmernit ry) ¢ } 1 f erense i entrapme na e ’ ’ « . ‘ ° mont »% , rnoa rey e) e (,overnmen nlavs O he Weak- > > | =i . at Lp , . . rs nar , Bal heo 1] PS nmvry 1% ‘ a i I i , ° ’ ¥ ?? . . } " . > m1! rimes which he otherwise would n ‘ y 9 , ’ ‘ - na rTemnNteé She (1) \ / red STOTT ¢ oH ’ va. >= , ‘ | _ HY >it f Y > 2 Ac +} . ie . tic? Si ects mar Oy tral ry’ tines tar} le , ry) a ’ ’ T ) » lack a predispositior ry?) VY ’ ’ ’ vy . , *) . y isa +« +> +} + {) ‘ ‘ ir ove roearing HOLICe At ics : — ‘ ‘minal heh: : +} ant af ir ice Cl Inai DenNavior On tne part Ol ry , Tne?) \ ~~ VW - , ’ 0 CIT Oy ~ The e) > nme "ss 2 fie. +1 + 4 +1} : } ens nus NaS LWO con Its ne crime must Nave PY ? ' ort sf Tr varnmont nr tho lofand 7. bi i ‘ c b cli ali c t(iticlitia " : > " 1s not ’ } ‘ NEE?) "~y (i ~ MQ6 ! 4 ‘ —_ ‘ ei4 , ’ ’ , 7 1 f e(] re mrp eT ‘ ; ' no nr nec (Pp s } } : ; ™ f t de 1 certioral n petit 9 The courts have uniformly held that the govern- ment may be said to have induced an offense only if the police behavior was such that it would likely have overborne “a law-abiding citizen’s will to obey the law.” United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984). Simple solicitation or initiation of the crime by the government plainly does not fall within this category, since “ ‘solicitation by itself is not the kind of conduct that would persuade an other- wise innocent person to commit a crime’” United States v. Burkley, 591 F.2d 903, 912 (D.C. Cir. 1978) (citation omitted), cert. denied, 440 U.S 966 (1979). Instead. as this Court’s holdings suggest, inducement can be made out only if the government used coercion or some other sort overbearing conduct to instigate the offense. Conversely, a defendant who is predis- posed—whose “criminal conduct was due to his own readiness and not to the persuasion of government agents” (Sherman, 356 U.S. at 376-377)—cannot claim entrapment. And obviously, the surest indica- tion of this sort of predisposition is the defendant’s unhesitating acceptance of the government’s criminal offer. Because entrapment is an affirmative defense, it need not be submitted to the jury unless the defend- ant makes a threshold showing of inducement and lack of predisposition. Petitioner plainly failed to make such a showing in this case. The “inducement”’ here was a simple criminal proposition: the govern- ment’s agent offered petitioner cash in return for official action. This is hardly the sort of conduct that would have overborne the will of a normally law- abiding person. At the same time, absolutely nothing in petitioner’s reaction to the proposal suggests that he was not predisposed. To the contrary, petitioner's y . eager acceptance of the offer mack r be , ’ ] ' - , ec WU ) S } 4 SPWULA JF ULES v¥ t i » reai al I Wi sit. ¥ eat it 1) ‘ li ~~ I I! YY ++ +} e aa nce T’) ty ad Si 1teR R ‘ 26 " }- 2 } G 5. -~ -— ‘ , * . , a 5 . ° } . p + + Gi (Yq { a. 1966). Because t! = evidence cll ) ; stn "+ + . : ' : , | [ is Was SLLLiiCie {) ~—¢ ‘ r roar 5 | } . | al Té riS€ the (*/ urts re ov were eCorrec ) nei | y 0 Tt? al etitioner was not e! ed to a 1? mst} ale) entrapment. B Petitioner was not e) titled ti an e) + yr ry) . J . al . : press denial ot the crime was inconsistent W nis simultaneous claim that he was entrapped into com- mitting it. The court below, like a majorit * tl courts of appeals, wil! not permit a defendan to testify that he did not commit the crime, and the same time to argue that the government e! trapped him. This “inconsistency rule” is a sound one. Entrapment is a nonconstitutional affirmative ce- fense that relieves the defendant of liability for what otherwise would be a crime. Because the law of en- trapment is not governed by any constitutional prin- ciple, and because Congress has not enacted legisla- tion affecting the defense in any way, the administra- tion of the entrapment defense has remained prin- cipally the responsibility of the courts. The courts, in turn, have applied the defense in a way that is consistent with its underlying purposes and that furthers accuracy in the truth-seeking process. Ap- mnlying their authority to shape the ertrapment de- fense according to these principles, a great majority of the courts of appeals have concluded that withhold- ing the defense from defendants who testify that they did not commit the crime accords most fully \ t+} +} y Ti) ? 1) . ‘ \ s Lit . ‘ ‘ id - ) ] . r . ‘ ; 14 .« 1. Cir. 1985). Both elements therefore are ultimate!) concerned with ernment “implant[ed] in the mind of an innocent son the disposition to commit the al lle Ag (Sorrells, 287 A the single question whether the POV- —~ i ’ ’ | ieged offense U.S. at 442). Yet because inducement focuses on the position is concerned with the defendant’s state of mind. it is convenient to consider the two elements separately government’s conduct, while predis a. The courts have uniformly held that the gov- ernment may be said to have induced an offense onl} if the “behavior fof law enforcement agents] was such that a law-abiding citizen’s will to obey the law could have been overborne’”’ (United States v. Ke ly, 748 F.2d 691, 698 (D.C. Cir. 1984) )—if, in other words. there was “government conduct that would O¢ ‘ “ek > mg11¢01 ‘ } *1T7} . : ; ] create a YrisK OI causing an otnerwise unprecdisposed person to comn F.2d at 914) words, “‘mere sit the crime charged” (Burkley, 591 Thus. again in Judge \ieGowan’'s government solicitation or initiation [of the crime] is, without more, insufficient to raise a’ *« . ] . 7 : ++ ‘ the entrapment defense” ; that conclusion “rests on the not unreasonable behavioral assumptior ‘solicitation by itself is not the kind of conduct that would persuade an otherwise innocent person to com- mit a crime’ ”’ (id. at 911-912 (quoting United States — DeVore, 423 F.2d 1069, 1071 (4th Cir. 1970), cert. denied, 402 U.S 950 (1971) Reg j f Stat H N S7-1072 (7 ( | e 17. 19R7 ’ } * / R04 F.2d 1161, 1165 (10th Cir. 1986): United Stat Nat 764 F.2d at 1079: 1 . Hi 749 1 ) - 17 The validity of this conclusion is confirmed by this . , . , > msideration oO! ne Court’s holdings. In its earliest cons! issue, the Court rejected assertions of the entrapment defense when the defendant “was in no way induced to commit the crime beyond the simple request of [a government informant].” Casey v. United States 276 U.S. 413, 419 (1928). See Grimm v. Uni States. 156 U.S. 604, 609-610 (1895) And in its first lengthy treatment of entrapment, the Court made it clear that “the defense of entrapment is not simply that the particular act was committed at the (Sorrells, 287 U.S. to] instance of government officials” at 451). To the contrary, the Court pronounced it “well settled that the fact that officers or employees of the Government merely afforded opportunities or facilities for the commission of the offense does not defeat the prosecution” (id. at 441). “Artifice and strategem,” the Court explained, are “frequently es- In ¢ tr} } fendant pro ded morp! ri ? the 4 f a government informant (see 276 U.S. at 422 | |. dissenting) ). Although the defendant failed to make nt? D ent iT? ment the (4 rt sper fig ‘ suas ted ft} i I Sé d be inavailable, expla ning that the de Fos ma O 1 > pr ve I re crTwy Lal & A. § Subs e Crm 8 5.2(4) (19R6) Othe t however, have collapsed the ir ry a2 e +L . —_ = +; , or salty +o! r g that inducement and predisposition are ultimately co! gle question whether the defendant was repared to commit the crime in the absence of the government mndauct See. e.0.. Kadis v. United States. 373 F.2d 370. 373 : ’ rf , 74 (lst Cir. 1967); Unmtted States v. Devore, 423 F.2d 1069, 1071 (4th Cir. 1970), cert. denied, 402 U.S. 950 (1971). But ’ ? ’ ’ Yr, , ros our ‘ ‘ ry ry? > - - ‘ t I | ement 1 predisposition are s And given the nature of the entiapment defense, it is not surprising that the courts have requived a showing of “inducemen: by a government agent and a lack of predisposition by the defendant” before sub- mitting an entrapment The Court in Sorrells reversed the holding of the court of appeals that “entrapment can be maintained only where, as a result of inducement, the accused is placed in the attitude of having committed a crime which he did not intend to com- mit, or where, by reason of the consent implied in the induce- ment, no crime has in fact been committed” (287 U.S. at 442 (citing 57 F.2d at 974)). One commentator has therefore observed that “[a] defendant who has not committed a crimi- nal act with the requisite criminal intent cannot have been entrapped under federal law.” Note, Entrapment and the De- nial of the Crime: A Defense of the Inconsistency Rule, 1986 Duke L.J. 866, 889 (footnote omitted); see id. at 889 n.206. - ~~ — 4 — more than 60 years—even prior to te recognition of the entrapment defense by this Court in Sorrells *“—it has been the rule in most circuits that a defendant cannot take inconsistent positions by simultaneously denying commission of the crime and arguing entrapment to the jury. That is now the approach taken by a substantial majority of the courts of appeals. At present, it appears that three circuits bar the assertion of an entrapment defense ; unless the defendant affirmatively admits commission } of the crime.** Another five circuits nave held that the defendant may not both deny commission of the crime and argue entrapment, although those courts > the defendant from seeking an entrapment foreclose nstruction only if he offers evidence contesting the elements of the offense.“ Only two courts of appeal: pernilt the defendant to testify (or introduce othe ting the existence of an element of he offense while simultaneously arguing entrapment These are the Third, Sixth, and Seventh Circuits. See (United States Vv. Hill, 655 F.2d 512, 514 (3d Cir. 1981) 1 States v. Whitley, 734 F.2d 1129, 1129 (6th Ci) 1984): UV ed States Vv. Liparota, 735 F.2d 1044, 1048 (7th Cir. 1984), rev’d on other grounds, 471 U.S. 419 (1985) ! See United States v. Annese, 631 F.2d 1041, 104 Cir. 1980); Unit States Vv. Mayo, 705 F.2d 62, 72-73 (2d Cir. 1983); United States v. Dorta, 783 F.2d 1179 (4tl Cir. 1986), cert. denied, No. 85-1713 (June 23, 1986) ; Unite Stat Vv. Mora. 768 F.2d 119 1198-1199 (10th Cir. 1985) cert. denied, No. 85-5437 (Jan. 21, 1986); United States \ Smith, 757 F.2d.1161, 1169 (11th Cir. 1985). In addition, th EFighth Circuit has « dorsed thi approach 1! dict im [’ Nhate \ A ; ' 670 2 od R70. R76 (Rth { Ir 19RY ) ‘>¢ } { tne ry ne otner circult permits a detendal 2 th . > , +] . . -« ] . . Sani 7 TF to deny the existence or the mental elemen OI Une ° +F oy } 7 cr? ’ ? TY ) ’ ’ ? > ’ ¥ NiCiis & i ' | ++ : b \ lie arguing tnat tli tne crime was com! eC } f aS entrapped into Col tting it Is the sounde y A 4 +} » + + + + y , ‘ , + ¥ ? ’ ce. sit e outset, petitioner 1S pialniy corres I : ‘ } 4 ] _ asserting (Pe Br 10. 14-15) that thers Ss anv con- + s«* na! » . y*) + ’ Qf *) »*} 'T} cy | »>*r) ? r)vT ~ ss ‘tv ) ] ‘ ‘ , ] +? r. , of the offense evyol a reasonabDie aoubnpt But the entrapment aerense Ss not eonstiturionaly grounded ’ 7 . on : ( : > >> “7 LSet MuUSsse ; $1] | a al ! mo}, anna cle absence ‘ > + + + . {> + envcrapniel SNnOL an @irementw Ol any OUenseé I) SLE aa mrfran) nt ‘ } rant ] firn +tIit"D lofay entrapment 18S a Courv-createt allirmatlv¢ GeLle;»nse ’ bs . ] ?} ,riée + + b + Fis ! 4 4 av reileves tne qdelendadant OL i1laDlilty 10) a ner- } . ° ’ 2 > 7 y\? > 7 se would be a crime. And since entrapment comes nto Diady O! \ Ne] all Line Cit! ents (yt ear. { ‘ nave deen estadlisned, 1tS existence qdaoes not “Ss é + + f + . ND . ap - + . , . > ‘ } cCVal any ial ls U Lit a Vril ‘ i. - 67 ‘ : ‘ 99 ' ernmen Is tO prove in orde}l {) convict Pa a ) . . es 9° —_ - _ = py . 4 - Ne f Y ork, 152 -.% ve AL (19% ij} pee Mar 7 7 ~ . . “\ O° ‘ _— 1: . -~ (Jhio,. No. 85-6461 (Feb. Zo. Joi). SLD OD. bD-- . he . r ; r 4 ‘ i ] ) ) } 7A ‘ ‘ si i i & hs “ i-& : Lr I - ; ‘ - ~ > = : —_ » . - . " ~ . ‘ > : : : " c . + + = . + - . “ ~ j 4 1 > 7 J > : : - ~ ~ . e > - > _ a . a - -- - - + ‘ . . j — @ % . y : 3 fg . a ‘ c c " 2 " ‘ + ’ ~~ “ > + > " > — ~ -_ ~ ’ ~ * : > C : - n “ ame - « ° . . aa > ~ = . - 7 + : » > 4 - . . = = ; “Z ; ‘ ° A “ ‘ — ~ ~ > = . ° “ - ‘ . > " . bs ~ . ; 7 > * . ~ | . bua . - . ‘a - > - — = ‘ © - > e « > a a - = ~ + - > | ~) ' ‘ > : + —_ . ae : - . . = = > e ‘ To - o — > . . ~ 7 ‘+ i ~ ee > a + . - patent - —_e - - 4 " . : m , - " “ c x ‘ * - _ - . - - 4 . - . , . ‘ rn ; eo . ‘ " ' - ~ = ‘ = - > | - ‘ - - , o > > - - . c - : " 7 : - “ - + “ ‘ ‘ we c | c ~ - ~ , : . b j _ ; “ m om « —— : : ™ j - ee - } _ - ’ - - ’ + “ c ¥ " 1 : . ” + . bs - . . ‘ | . ° . . . + . - e - > = = - j + " > a “ > ~ S » ¥ J — o . ° le ‘ “ > + . DD) a \ ’ oO 4 ! ‘ ‘ ‘ } } T fue (or present ¢ elice ClaulIng tO) al fT ative GUCLeIIst t iS tactua SU pi avi t See B 144 U.S t 416-417) « Ot ievally CogniZavie (see Ve} Li hy } i {J 1 ri Cast Chances ol ACQUILLA ; . ++ ne + j ‘ " i > + ri) ‘Saki ‘ ’ sah) ©) l { LIi¢ qaerenad O alvue { rapmel 4 + , a LLel LAKINY rie stand 1 il cif l \ {7 ‘ | i - 7 {)i { t | ‘ met) ‘ i] rie )' | f Si] ‘ } 1 yY)) c the integrity and the trutn-finding function of ou , . ee , . YY , ~ ‘) . ¢) nal trials.” United States v. Dorta, 783 F.2d — 179, 1181-1182 (4th Cir. 1986), cert. denied, No 85-1713 (June 23. 1986). When he denies an ele- ment of the offense. the defendant in effect testifies that he was not entrapped; in this case, for example, Une overnment could hard! have implant] ed | the criminal design” (Russell, 411 U.S. at 436) in peti- tioner's mind lif, as petitioner testified. a criminal cd sion never existed [f petitioner nevertheless ob- tained I entrapment nstructior he effective vould be ng tne l} to acquit him on a view of ? T | T a nimselt | (| testified is not true vey \ te / ; ; r rw ad air Denial oT the ( rime 1 De / ste / Rule, 1986 Duke L.J 866. 883-884 . ent of the sporting the i , 749 F.2d at 215 (Gee, J ssenting)). “| Tl}here is no right whatever—con- titutional or otherwise—for a defendant to use false evidence’ (NA slip op. 15); once “[hlaving volun- tarily taken the stand, |a defendant is] under an ob- , , } aerate bh 4 li«y?? _)* f | ition to speak truthfully” (Harris v. New York LO] US 222, 229 (1971) See Niaz. slip Op 4.10) , , sy)? ’ ’ — Ff Orn? ‘ | ' : ’ ave | ft the ) ne An ‘ +¥ ‘ rt yr ht for ment CONCLUSION ‘ f ' ; - ~ MTT , ’ PC] HARI} RIED . ; j WILLIAM F. WELD issistant Att WILLIAM C. BRYSON De ty Sol RLES A. ROTHFE! yk orn ry ’ , The riryvie ‘ YY ’ al qa qd nao? nee at t Even whe the defs iant a t from the na o1 tnerwist ffer evidel overnment & proot or the ¢ ements of the lant al ment to the ir’y hased o1 nco! I annot muitaneousiy be true that t he offense were not present and that the def pped And the entrapment defense ST rr rie V“ h rar cy Ts h Q roe ry) < ’ not commit the offense at all and therefors een entrapped by a government rent int crime. On the other hand, we recoenize ti natte i defendant may put the covernment lAaAKe d nta | ! let <¢ ed \ the i we recog? e that ? ~T where the def ¢ ered evidence denying comm on of the have felt that it unreasonably taxes the d to put the government to its proof on the f rt to require the lefendant Oo stil ré f the offe ‘ } order TO @en1TOV the henefit defense See ¢ [’ ted St \ He l’nited Stat \ } ese. 631 F.9d at 104 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0982%3A7. Public record. Not legal advice.