Opposition Brief — El Gawli v. United States

Dep eo Ye} \ No. 87-1726 SOSEDL Fe BEAN

In the Supreme Court of the Bnited States

OCTOBER TERM, 1988

SULTAN EL GAWLI, PETITIONER /

F v. a i

' UNITED STATES OF AMERICA : Me

ON PETITION FOR A WRIT OF CERTIORARI TO ens

THE UNITED STATES COURT OF APPEALS FOR ‘7

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

EDWARD §.G. DENNIS, JR.

"4 Acting Assistant Attorney General

JOSEPH C. WYDERKO

Altorney

——-a

Department of Justice

Washington, D.C. 20530

(202) 633-2217

5 Sel

QUESTION PRESENTED

Whether the district court’s supplemental jury instruc-

tions On entrapment were correct.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Bollenbach v. United States, 326 U.S. 607 (1946) ........ 6

Mathews v. United States, No. 86-6109 (Feb. 24, 1988) ... 4

Sagansky v. United States, 358 F.2d 195 (Ist Cir.), cert.

a 4-5

United States v. Anglada, 524 F.2d 296 (2d Cir. 1975) .... 5

United States v. Armocida, 515 F.2d 49 (3d Cir.), cert.

BEE 5

United States v. Castro, 776 F.2d 1118 (3d Cir. 1985),

cert. denied, 475 U.S. 1029 (1986) .................. 5

United States v. Gunter, 741 F.2d 151 (7th Cir. 1984) .... 4

United States v. Luce, 726 F.2d 47 (\st Cir. 1984) ....... 5

United States v. Rhodes, 713 F.2d 463 (9th Cir.) cert.

CE 5

Wisniewski v. United States, 353 U.S. 901 (1957) ........ 5

Statute and regulation:

22 U.S.C. 2778(b)(2) ........... LP ty ee nee

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(111)

Jn the Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1726

SULTAN EL GAWLI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-21a)

is reported at 837 F.2d 142.

JURISDICTION

The judgment of the court of appeals (Pet. App. 22a)

was entered on January 19, 1988. A petition for rehearing

was denied on February 17, 1988 (Pet. App. 23a-24a). The

petition for a writ of certiorari was filed on April 19, 1988,

and is therefore out of time under Rule 20.1 of the Rules

of this Court. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the District of New Jersey, petitioner was convicted of

conspiring to export defense articles without a license or

(1)

2

the approval of the State Department, in violation of 22

U.S.C. 2778(b)(2) and 22 C.F.R. 121.1(b), Category V(A).

He was sentenced to two years’ imprisonment. The court

of appeals affirmed (Pet. App. la-21a).

1. The evidence at trial is summarized in the opinion

of the court of appeals (Pet. App. 3a-6a). It showed that

petitioner, who came to the United States from Egypt in

1969 and became an American citizen in 1977, owned and

operated a travel agency. In June 1985, petitioner met

Momdouh Zakkary Girguis (Zakkary), an Egyptian

businessman, when Zakkary ‘purchased airline tickets

from petitioner’s travel agency. On July 31, 1985, Zakkary

visited petitioner’s agency again. During that meeting,

petitioner asked Zakkary whether Zakkary could assist

him in procuring arms for Palestinian revolutionaries.

Zakkary pretended to be familiar with arms sales in order

to determine whether petitioner was serious. Zakkary met

again with petitioner in August and September 1985 to

continue the discussion. /d. at 3a.

On September 19, 1985, Zakkary informed a Customs

Service auditor avout his discussions with petitioner. Zak-

kary thereafter agreed to pose as an arms dealer and to

tape record his conversations with petitioner. In a meeting

on November 8, 1985, Zakkary described a supposed

liaison with an American soldier who could provide

weapons. Four days later, petitioner introduced Zakkary

to Said Hassan, a representative of the Palestinian Libera-

tion Organization (PLO) in Saudi Arabia. Hassan told

Zakkary that he needed explosives and detonation devices

for the “revolution people” in the Middle East. Hassan

and Zakkary thereafter decided to conduct all further

arms discussions through petitioner, who agreed to act as

an intermediary. Pet. App. 4a.

In a meeting on November 15, 1985, Zakkary quoted

prices to petitioner for the requested explosives and

wn 2

3

detonating devices. Petitioner agreed to a price of $12,000

for the arms and $13,000 for Zakkary’s expenses. When

Zakkary complained of financial difficulties, petitioner

explained that he himself would be receiving no remunera-

tion, stating: “I am doing this for the sake of God. I am

personally not going to gain anything out of it.” Pet. App.

4a-Sa. .

On December 5, 1985, Zakkary brought a sample ex-

plosive to the travel agency, and petitioner called Saudi

Arabia to tell the PLO representative that the explosives

were ready for shipment. On December 13, petitioner and

Zakkary met with Hassan to discuss prices, and on

December 17, petitioner and Zakkary met to discuss pro-

curing helicopters. Petitioner was arrested the following

day. Pet. App. Sa. .

2. Petitioner admitted at trial that he had agreed to

serve as an intermediary in the arms negotiations, and that

he knew that his conduct was wrong. He claimed,

however, that he had been entrapped. Pet. App. Sa. The

district court accordingly instructed the jury on the entrap-

ment defense. Neither petitioner nor the government ob-

jected to that charge. After two hours of deliberations, the

jury requested further instructions on entrapment. The

district court reread its original charge and sent the jury

back to resume deliberations. Jd. at 6a.

The following day, the jury asked for further instruc-

tions On entrapment. Over defense counsel’s objection, the

district court gave a supplemental charge, stating in perti-

nent part that “it remains on the Government to prove

beyond a reasonable doubt that the defendant was not in-

duced by the Government to commit the crime or they

must prove beyond a reasonable doubt that he was

predisposed to commit the crime.” Pet. App. 6a (emphasis

omitted). The jury resumed deliberations, and shortly

thereafter it returned a guilty verdict (id. at 7a).

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3. The court of appeals affirmed (Pet. App. la-21a).

The court rejected petitioner’s claim that the supplemental

entrapment instructions were erroneous. Petitioner had

contended that, in order to disprove an entrapment

defense, the government must negate the defendant’s

showing of inducement and must also prove that the

defendant was predisposed to commit the crime. The court

of appeals disagreed, explaining (id. at 12a) that “entrap-

ment can be disproved in one of two ways, either by prov-

ing beyond a reasonable doubt that the defendant was not

induced, or by proving beyond a reasonable doubt that He

was predisposed to commit the crime.”

ARGUMENT

1. In its supplemental instructions, the trial court ex-

plained to the jury it could reject petitioner’s entrapment

defense if it concluded that the government had either

disproved inducement or, aliernatively, that it had shown

that petitioner was predisposed to commit the offense.

Petitioner contends (Pet. 5-10) that those instructions are

mistaken, because in his view the government must make

both showings in order to defeat an entrapment defense.

There is no merit to that contention. As this Court ex-

plained in Mathews v. United States, No. 86-6109 (Feb.

24, 1988), slip op. 4, “a valid entrapment defense has two

related elements: government inducement of the crime,

and a lack of predisposition on the part of the defendant

to engage in the criminal conduct.” If either element is

missing, the defense must fail. For that reason, the courts

of appeals have consistently held that the government may

overcome the defense of entrapment by proof sufficient to

disprove either prong of the defense. See, e.g., United

States v. Gunter, 741 F.2d 151, 153 (7th Cir. 1984); Sagan-

sky v. United States, 358 F.2d 195, 203 (Ist Cir.), cert.

a)

denied, 385 U.S. 816 (1966). Inceed, the courts have re-

quired a showing of “inducement by a government agent

and a lack of predisposition by the defendant” before even

submitting an entrapment claim to the jury. United States

v. Rhodes, 713 F.2d 463, 467 (9th Cir.) (emphasis in

original), cert. denied, 464 U.S. 1012 (1983). See also

United States v. Luce, 726 F.2d 47, 49 (Ist Cir. 1984);

United States v. Anglada, 524 F.2d 296, 298 (2d Cir.

1975); United States v. Armocida, 515 F.2d 49, 55 (3d

Cir.), cert. denied, 423 U.S. 858 (1975).*

2. There is no merit to petitioner’s contention (Pet. 10)

that the district court’s supplemental instruction on en-

trapment was inconsistent with its original charge. In its

original charge, the district court stated that “[t]he govern-

ment must prove beyond a reasonable doubt in addition to

[the] elements of the offense itself that the defendant was

not entrapped” (C.A. App. 808-810 (quoted in Appellant’s

Br. 22)). In its suppiemental charge, the district court fur-

ther explained that “it remains on the Government to

prove beyond a reasonable doubt that the defendant was

not induced by the Government to commit the crime or

they must prove beyond a reasonable doubt that he was

predisposed to commit the crime” (Pet. App. 6a (emphasis

omitted)). The latter instruction was merely an elaboration

* Petitioner contends (Pet. 5-8) that the decision of the court of ap-

peals is inconsistent with the Third Circuit’s prior decision in United

States v. Castro, 776 F.2d 1118 (1985), cert. denied, 475 U.S. 1029

(1986). As the court of appeals explained (Pet. App. 14a-15a),

however, the Castro case simply holds that a district court must in-

struct the jury that the burden of disproving both elements of the

defense is on the government. The case does not hold, as petitioner

Suggests, that the government must actually disprove both elements in

order to defeat the defense. In any event, petitioner’s claim of an in-

tracircuit conflict is for the court of appeals, and not this Court, to

resolve. Wisniewski v. United States, 353 U.S. 901, 902 (1957).

6

of the former, and it was entirely responsive to the jury’s

request for further clarification. See Bollenbach v. United

States, 326 U.S. 697, 612-613 (1946).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistant Attorney General

JOSEPH C. WYDERKO

Altorney

JULY 1988

US. GOVERNMENT PRINTING OFFICE: 1988— 202-037/60549