Reply Brief — Mathews v. United States

No. 86-6109

IN THE

Supreme Court of the Cited States

{) ih | | V1 “Qs |

On Writ Of Certiorari To The lL nited Stats

Court Of Appeals For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

TABLE OF CONTENTS

TABLE OF AUTHORITII

SUMMARY OF REPLY AI! ME?

RepLy ARGUMENT

| DETERMINATION OF WHETHI » Ds

Was ENTRAPPED. LIKE THE DETERMINA

WHETHER THE DEFENDANT G

ENT, ls A QUESTION FOR THE JU!

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States, 276 U.S. 416 92

led States 25 U.S. 4384 1976

de, No. 84-1321 (Feb. 26, 1986

ted States. 356 U.S. 369 (195%

ed States. 227 U.S. 435 (19382

iJemima 513 F i GI Sen Cir

(,reenfieid 94 r 2a 179 pth

lackson, 700 F.2d 181 (5th Cir

Johnston, 426 F.2d 112 87th '

1, 401 U.S. 921 (1971

Ke 4 (48 F.2d O91 Df _i

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tey, 706 F.2d 145 (5th Cir. 198

Rhodes 71 F.2d 5 (Stn '

U.S. 1012 (198

Rogers, 755 F.2d 533 (7th Cir

Russe 411 U.S. 423 (19%

Timberlake , 559 F.2d 1375 (oth |

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TABLE OF AUTHORITIES

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SUMMARY OF REPLY ARGUMENT

I. Inits search for truth, the jury should have available to it

all evidence bearing upon the guilt or innocence of the accused.

It is not inconsistent for a defendant to assert his innocence and

yet claim entrapment. He could argue that he had not formed

the subjective criminal intent necessary to find him guilty of

the offense, and argue alternatively that if the jury found

sufficient objective indicia of his criminal intent, the offense

was the product of the government's creative activity.

II. The question of whether the record contains sufficient

evidence to entitle Mr. Mathews to an entrapment instruction

is not squarely before this Court. Nevertheless, the record

clearly establishes that DeShazer induced Mathews to commit

the offense by playing upon Mathews’ dire financial circum-

stances and DeShazer’s own dilemma of explaining a large sum

of money to his wife. There is no evidence that Mathews was

predisposed to commit the offense. Although Mathews had

previously borrowed money from DeShazer, nothing in the

record demonstrates that either party believed those

exchanges were anything but personal loans. Thus, the govern-

ment failed to prove beyond a reasonable doubt that Mathews

was predisposed to commit the offense.

REPLY ARGUMENT

I. DETERMINATION OF WHETHER A DEFENDANT

WAS ENTRAPPED, LIKE THE DETERMINATION OF

WHETHER THE DEFENDANT IS GUILTY OR INNO-

CENT, IS A QUESTION FOR THE JURY.

Contrary to all of this Court’s precedent, the government

argues that the defendant who claims he was entrapped but

denies having the intent to commit the offense is somehow

gaining a windfall if the jury adopts the entrapment defense.

That view assumes that the defendant is guilty but is allowed to

go free because of the government's overreaching. It is on that

basis that some circuits require the defendant to first admit his

guilt before he can claim entrapment.

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This court has long held, however, that the entrapment

defense is not in the nature of a confession and avoidance. The

Sorrells Court expressly held that “This . . . is a misconcep-

tion. The defense is available, not in the view that the accused

though guilty may go free, but that the government cannot be

permitted to contend that he is guilty of a crime where the

government officials are the instigators of his conduct.” Sor-

rells v. United States, 287 U.S. 435, 452 (1932). Very simply,

there is no crime if the defendant's conduct is found to be the

product of entrapment.

In that light, there is no impermissible inconsistency in

submitting to a jury both the claim that the defendant lacked

the intent to commit the offense and the claim that the defend-

ant was entrapped. Sorrells, 287 U.S. at 452. The defendant

may logically assert that although he committed certain acts

comprising the elements of the offense, he had not formed the

intent necessary to transform those actions from innocent

conduct to a criminal offense. At the same time, the defendant

may claim that if the jury concludes from all of the evidence

that he did have the required criminal intent, he did so at the

government's instigation.

The well-established fundamental premise of the

entrapment defense is “the notion that Congress could not have

intended criminal punishment for a defendant who has com-

mitted all the elements of a prescribed offense but was induced

to commit them by the government.” United States v. Russell,

411 U.S. 423, 435 (1973). The government interprets that lan-

guage as requiring the defendant to admit all elements of the

crime. The government's reliance is without foundation in the

law: nothing in this Court’ decisions requires a defendant to

admit any elements of the offense before he may claim

entrapment. On the contrary, this court expressly leaves such

matters to the jury. Sherman v. United States, 356 U.S. 369,

377 (1958). In any given case there exists the very real pos-

sibility that the government may have succeeded in creating

the circumstantial, objective appearance of intent, without

having actually implanted the criminal design in the defend-

ant’'s subjective mind. On that premise, a defense of both inno-

cence and entrapment is not only entirely logical and

consistent, but best serves the criminal trial’s function as a

“search for truth.” Nix v. Whiteside, No. 84-1321, slip op. at 8

(Feb. 26, 1986)

In Mr. Mathews’ case, it is entirely consistent for him to

admit that he received money from Mr. DeShazer, acknow!-

edge that DeShazer was his client at the Small Business

Administration, but deny that he took the money with the

intent that it would affect Mathews’ handling of DeShazer's

SBA matters. Intent, for purposes of submission to the jury,

was established purely through DeShazer’s juxtaposition of

discussions about SBA matters with talk about the loan he was

offering to Mathews, or even through the physical transfer of

money. Mathews denied that he would have ever taken the

money if it had been offered in relation to his SBA work. His

denial constitutes a denial of the intent element of the offense.

Yet he could have argued to the jury that if in fact the jury

decided that Mathews had formed the criminal intent essential]

to a finding of guilt, the jury should consider whether that

intent, as well as the physical act, was induced by DeShazer

acting 9s a government agent.

While the government acknowledges, as it must. that a

criminal jury trial is a search for the truth, e.g., United States

v. Greenfield, 554 F.2d 179, 182 (5th Cir. 1977), its view would

preclude criminal defendants from presenting to the jury a

significant portion of the evidence in a given case. “(T]he incon-

sistency rule subverts the truth-seeking function of the trial by

unreasonably requiring a defendant to present to the jury only

what he believes to be the most credible set of facts available. In

large part, the jury is thereby deprived of the benefit of view-

ing the bases for the accused's indictment in their entirety.”

Note, Pleading the Entrapment Defense: The Propriety of

Inconsistency, 28 N.Y.L. Sch. L. Rev. 1025, 1074 (1983)

(emphasis in original). Whether a defendant has been

entrapped is a jury question, “as part of its function of deter-

mining the guilt or innocence of the accused.” Sherman v.

United States, 356 U.S. 369, 377 (1958). Once inducement, the

factual predicate for an entrapment claim, is established, “non-

entrapment” is simply an additional element which the pros-

ecution must prove. United States v. Demma, 513 F.2d 981. 983

.2 (9th Cir. 1975)(citing Sorrells, 287 U.S. at 448). The pros-

ecution accomplishes this by proving predisposition. These

entrapment issues cannot be removed from the jury's consider

ation, simply because a defendant contests another element of

the government's proof.

The government and a minority of this Court have repeatedly

urged the implementation of an objective legal standard for

when a criminal defendant may claim the entrapment defense.

United States v. Russell, 411 U.S. 423, 441 (1973) (Stewart, J.,

dissenting); Sherman, 356 U.S. at 384-85 (Frankfurter, J.,

concurring); Sorrells, 287 U.S. at 453, 457 (Roberts, J., con-

curring). Under that view, the trial judge, not the jury, should

decide whether the government's conduct was lawful. Russell,

411 U.S. at 441 (Stewart, J., dissenting). This Court has

soundly rejected that approach, holding that the entrapment

determination is a jury issue. See Russell, 411 U.S. at 433-54

Mathews was improperly denied the opportunity to have the

jury consider his entrapment issue, solely because he refused

to admit that he was guilty of the offense. The jury should have

been allowed to decide whether Mathews committed the sub-

stantive elements of the crime and if so, whether the govern-

ment implanted the criminal design.

As alternative defenses, those two claims are logically con-

sistent. A defendant can consistently claim that, subjectively,

the government never succeeded in implanting the criminal

intent in his mind. But if the jury finds, from the objective facts

before it, that the government successfully implanted the crim

inal design, the intent certainly would have existed, and the

jury is required to move to the issue of whether the govern

ment’s proof was obtained through impermissible “creative

activity.” Sorrel/s, 287 U.S. at 451.

On the other hand, if the evidence created a circumstantial

perception that Mathews had the requisite intent (i.e., he took

money from someone who was his client and for whom he was

supposed to process various documents), the government may

not have successfully transferred the mens rea to Mathews.

To have induced the underlying activity is not necessarily

to have induced a particular state of mind, because the

activity may reflect any of several different motives. The

significant point is that to claim entrapment is to claim that

the government induced the acts necessary to constitute

the crime charged, whether or not the government also

induced the requisite state of mind.

Demma, 523 F.2d at 984 n.2. Nevertheless, the jury logically

could find that although Mathews claims an innocent state of

mind, the circumstantial evidence of intent was sufficient to

persuade the jury that he did have mens rea. Given the

entrapment defense, the jury also could find that the intent, as

well as the physical acts, were the government's creation.

When, as in this case, the testimony and other evidence can

arguably support claims of both innocence and entrapment, the

jury should be allowed to decide both issues. See Sherman, 356

U.S. at 377. Indeed, trial courts must instruct the jury on the

defendant's defense theory where the record contains any

evidentiary foundation for the theory, even if the evidence is

“weak, insufficient, inconsistent, or of doubtful credibility.”

United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir

1977).

There is no dispute that “(aj criminal prosecution. . .isnota

game.” L’nited States v. Rey, 706 F.2d 145, 147 (5th Cir. 1983).

It is irrefutably a serious matter with the potential to perma-

nently affect the course of a defendant's life. A defendant

should not be foreclosed from presenting those defenses and

allowing the jury to choose. Because there are instances when

alternative defenses can be supported by the evidence, if the

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jury finds the defenses are factually and logically incompatible,

the defendant is the one who takes the risk and bears the brunt

of any resulting diminution in credibility. United States v.

Kelly, 748 F.2d 691, 701 n.1 (D.C. Cir. 1984) (“[wJhen [defend-

ant] chose to give testimony at odds with the entrapment

defense. he ran the risk of undercutting his own case.”);

Demma. 523 F.2d at 984. “{Slimultaneous denial of criminal!

intent and advancement of an entrapment theory almost

always will damage the likelihood of success of such defense.”

l’nited States v. Nations, 764 F.2d 1073, 1081 (Sth Cir. 1985).

Permitting the defendant to claim entrapment while he

denies guilt is entirely consistent with this Court's view of the

entrapment defense. Because Mr. Mathews was denied the

opportunity to present both alternative defenses to the jury,

his right to a fair trial, with the jury receiving all relevant

evidence and instructions, was denied. Reversal is therefore

mandated.

il. THE EVIDENCE AT TRIAL DEMONSTRATED SUF-

FICIENT GOVERNMENT INDUCEMENT TO WAR-

RANT AN ENTRAPMENT INSTRUCTION.

The government erroneously states that two independent

reasons supported the lower courts’ decisions denying Mr

Mathews the use of the entrapment defense. In fact, the lower

courts based their decisions entirely upon the Seventh Circuit

Court of Appeals’ rule that a defendant who wishes to claim

entrapment must first admit that he committed all of the phys-

ical acts and had the necessary criminal intent. (J.A. 3-4, 131)

E.q., United States v. Rogers, 755 F.2d 533, 550 (7th Cir. 1985);

l’nited States v. Johnston. 426 F.2d 112, 114 (7th Cir. 1970),

cert. denied, 401 U.S. 921 (1971). The trial court expressly

declined to address the sufficiency of the evidence. (J.A. 151).

The government argues extensively that the trial record con

tains no evidentiary support for the entrapment defense

Although this issue is not squarely before the court, it is easily

resolved by reference to the trial record and the law

Before the entrapment defense can be claimed, the evidence

must indicate government inducement to commit the offense.

Russell, 411 U.S. at 433; Demma, 523 F.2d at 984. Inducement

requires a showing of more than a government agent's “simple

request” to engage in a criminal activity, Casey v. United

States, 276 U.S. 413, 419 (1928), but can be established. as the

government acknowledges, by a showing of “persuasion or mild

coercion” or by “pleas based on need, sympathy or friendship.”

United States v. Jackson, 700 F.2d 181, 191 (5th Cir. 1983).

In United States v. Nations, 764 F.2d 1073 (5th Cir. 1985).

the court aeld that sufficient evidence of government induce-

ment was presented to allow the defendant to present the

entrapment claim to the jury. /d. at 1080. The informant, who

was the defendant's former brother-in-law and who admitted

he had a vendetta against the defendant. id. at 1074. “engaged

ithe defendant's] cooperation with a tale of financial woes, the

need to support a new spouse, and terminal cancer, al] the

while knowing that [the defendant's] sister recently had died of

cancer.” /d. at 1080.

Similar evidence of inducement exists in the instant case

Mathews and DeShazer had been friends for a number of years,

confiding in each other about a variety of personal concerns

(J.A. 9, 191, 106, 117-8; R. 38: 434-35). In December 1984 and

January 1985 DeShazer was “a desperate man” and blamed

Mathews because he was not meeting his defense department

contracts. (J.A. 95). DeShazer knew that Mathews was about

to lose his job, that Mathews’ wife had left him, that Mathews

had attorney fees to pay, and that Mathews had significant

household expenses. (J.A. 121-22). DeShazer told Mathews a

fictitious story about a friend loaning him $12,000.00. that he

needed $7,000.00 for mortgage payments, that he did not want

his wife to find out about the total amount because it could lead

to another divorce, and that therefore he would loan the dif-

ference to Mathews. (J.A. 81, 99, 121-22). He played on Math-

ews dire financial and employment circumstances, and talked

about not wanting another divorce when he knew Mathews

wile Nad )ust iert hin And he repeated the ofier over a penmod

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f two months. (J.A. 23, 35-36, 0/-69 25

Thus, the evidence presented provided a more than adequate

‘basis for a reasonable doubt on the ultimate jury entrapment

ssue of whether criminal intent omginated with the govert

ment.” Nations, 764 F.2d at 1080. In such cases, where the

record contains sufficient evidence to submit the entrapment

ssue to the jury, “the district court must instruct the tury (

acquit uniess the evidence proves Deyond a reasonaDie doubt

that the defendant was predisposed—that the cmminai intent

riginated with the defendant ia

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Predisposition can be established Dy a defendants read

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mpialsance OMmDIV WILI ne government agents sugyes

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ment argued in Sferman that the defendants two prior

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onvictions demonstrated his predisposition. As in Sherma

however. there is ample evidence in this case to support the

laim that the defendant was not predisposed. Mathews had

previously taken money from DeShazr. but according t

Vathews. it was alwavs deemed a personal joan with no cor

nection to Mathews duties at the SBA. There was no indicatior

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hat either party. at the time of the earlier loans, Delleved (thal

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ne prior transactions were anything otner than persona

ans. As for the loan upon which the instant offense is based

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a: o¢ ce eal CSLAVDLUSIIC> al Lt laLe i a ews

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f agence Tturtner snowed na m revruaryvy zo LYSo w ne

leSNazer suggested tne subdject ar Mathews had not

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requested anv loans since July, 1984 At the very least Matt

ews own testimony raised the issue of inducement and lack

predispesition. The iry should Nave Deen permitted |t !

sider this in the ugnt of the law of entrapment

il iacK OF Dredispos nis an essentiai factor lo de estal

sneqd DetIore a detendant Ma laim entrapment. then Une

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254. 489 (1976): Nations. 764 F.2d at 1080: I’ nited Stat

Rhodes, 713 F.2d 463, 467 (9th Cir.). cert. denied. 466 U.S lO12

1983). If entrapment is established, there is no crime. Sor

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8, 2O | »S. al bo2Z Therefore when inducement is raised [

t(riai evidence, non-entrapment is an element of ev rr’ rime

it is not for this Court, however—or indeed for anv entit

put the ur’) to decide whether the evidence established that

Mathews was or was not predisposed to commit the offense. A

liscussed earlier. the issue of gulit and the issue of entrapment

are Doth issues for the jury

In this ‘ase, despite a more than ade juale evidentiary four

lation, the jury was never allowed to decide the entrapme!

ssue because Mathews refused to admit that he was guilty. The

ssue presented for review is whether a lefendant snouild De

Liowed to ialim en rapme | wher ne ienies DOSSeSSING Set

requisite criminai intent. Resolutior I that issue render

innecessary the Courts analysis of whether the record below

I dead enougn *« aence { permit the eftendal il!

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CONCLUSION

4< stated in his original brief, Frederick Mathews

respectfully urges this Court to reverse Nis conviction and

grant him a new trial with the ability to claim the entrapment

defense without forfeiting his constitutional nights to remain

silent. to refrain from incriminating himself, and to require the

government to prove every element of the offense charged

beyond a reasonable doubt In so doing, this Court will elimi

ite a longstanding dichotomy lil the circuits while reiterating

and ciariiving its wel established holdings on tne entrapment

lefense

Respectfully submitted

Gimpec. RerLLy, GUERIN & BROW?

PrRaANKLYN M. GIMBE!

ippointed by this Cour

jerrrReyY A. KAUFMAN

MaRNA M. Tt MATTNI

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M WaUuAce W SCONnSIT 4 My?

$14) 271-1440