Petition for Writ of Certiorari — Clements v. United States

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IN THE SUPREME COURT OF THE §NITED SGatoe™

October Term, 1984

RICHARD CLEMENTS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

we Ne Ne Se SS SY

Respondent.

PETITION FOR A WRIT OF CERTORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

PARKER, BRUNNER & HAMILTON

John C. Hamilton

1100 Hazlitt Building

120 W. LaSalle Avenue

South Bend, IN 46601

(219) 234-4149

Counsel for Petitioner

Of Counsel:

KELLY LEEMAN

1300 E. Broadway

Logansport, IN 46947

(219) 722-3881

QUESTION PRESENTED

Given this Court's recognition of the

"due process entrapment defense" in

Hampton v. United States, 425 U.S. 484

(1976), and given the fact that inferior

federal courts, including the court below

in this case, have struggled with deciding

when and where the due process defense

controls, should this Court review the

defense and attach to it standards that

will enhance predictability of when the

defense should and should not apply?

PARTIES INVOLVED

The parties involved in this petition

are Richard Clements, petitioner and

defendant below, and John A. Belzer, Jr.

and John Evans, defendants below, and

the United States of America, respondent

and plaintiff below.

Mr. Hamilton, one of petitioner's

counsel, represented John A. Belzer, Jr.,

by appointment, through the appeal for

to the Seventh Circuit. Before agreeing

to represent Mr. Clements on this peti-

tion Mr. Hamilton personally informed Mr.

Belzer that he could join in this peti-

tion. Mr. Belzer stated clearly that he

did not wish to do so.

ii.

INDEX

Pages

Question Presented i

Parties Involved ii

Index iii-iv

Citations V-vi

Opinion Below 5

Jurisdiction 2

Constitutional and Statutory

Provisions Involved 2-3

Statement of the Case 3-10

1. Proceedings Below 3-4

2. Statement of Facts 4-10

Counterfeiting in 1982

The Government Becomes Aware

The Investigation

The Conspiracy Underway

The Search Warrant and

Changed Facts

3. The Seventh Circuit's

Decision 10-13

The Defendants' Position

The Appellate Court's Reaction

iii.

INDEX (Cont.)

Pages

Reasons for Granting the Writ 13-21

This Court Should Review the

"Outrageous Conduct" Standard

Heretofore Used in Due Pro-

cess Entrapment Cases Be-

cause it is Vague, Inherently

Subjective and, Finally, [n-

spires, Rather than Limits, a

Multiplicity of Trial Court

Issues and Consequent Appellate

Litigation.

Conclusion 22

Ve

CITATIONS

Cases

Hampton v. United States,

425 U.S. 484 (1976) ‘

People v. Isaacson,

44 _N.Y.2d 511,

406 N.Y.S.2d

714, 378 N.E.2d 78 (1978)

Rochin v. California,

342 U.S. 165 (1952)

Sherman v. United States,

356 U.S. 369 (1958)

Sorrells v. United States,

387 U.S. 435 (1952)

United States

v. Jannotti,

673 F.2d 578 (3rd Cir. 1982),

cert. denied, 457 U.S. 1106 (1983)

United States

703 F.2d 1004

1983)

United States

707 F.2d 1460

cert. denied,

(1984)

United States

411 U.S. 423,

United States

726 F.2d 1Ligl

Vv. Kaminski,

(7th Cir.

15-16,

v. Kelly,

(D.C. CiF.),

104 S.Ct. 264

v. Russell,

431-32 (1932)

v. Thoma,

(7th CiP.), cert.

Pages

13-14, 15

17

17

14, 16

14, 16

16

18-20, 21

is, 2:

15

denied, 104 S.Ct. 2683 (1984) 19-20,

CITATIONS (Cont.)

Statutes:

U.S. Const. amend. i

U.S. Const. amend. IV as Shy

U.S. Const. amend. V a, a,

18 U.S.C. 371

18 U.S.C. 471

18 U.S.C. 474

Miscellaneous:

Gershman, Entrapment, Shocked

Consciences, and the Staged

Arrest, 66 Minn. L.Rev. 567

(1982)

Note, Entrapment as a Due

Process Defense: Developments

After Hampton v. United States,

57 Ind. L.J. 89 (1982)

se

Pages

17

17

NO. 84-

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1984

RICHARD CLEMENTS,

Petitioner,

Ve

UNITED STATES OF

AMERICA,

Ne Nee Ne Oe SS ee Se Se SS

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

Richard Clements prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Seventh Circuit in this case.

OPINION BELOW

The decision of the court of appeals

(App. A, infra, la ~ 37a) is reported at

743 F.2d 1213.

JURISDICTION

The judgment of the court of appeals

(App. B, infra, 38a - 39a) was entered on

September 18, 1984 and a suggestion for

hearing in banc was denied on October 18,

1984 (‘pp.- C, infra, 40a - 4la).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the

United States Constitution provides, in

part,

No person shall be. . .deprived

of life, liberty, or property,

without due process of law. ...

2. The Fourth Amendment to the United

States Constitution provides,

The right of the people to

be secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures

shall not be violated; and no

Warrants shall issue but upon pro-

able cause, supported by Oath or

affirmation, and particularly

describing the place to be searched,

and the persons or things to

be seized.

2.

3. The defendants were charged below

with violation of the following statutes:

18 U.S.C. §§371, 471, 474. Those stat-

utes are set forth below. (App. D, infra,

42a - 45a).

STATEMENT OF THE CASE

1. Proceedings Below.

On March 4, 1983 John A. Belzer, Jr.,

Harold Clements, Richard Clements and

John Evans were charged in a five count

indictment filed in the United States

District Court, Northern District of

Indiana (South Bend Division) with con-

spiracy to commit, and the commission ot.

various acts constituting or relating to

counterfeitiig. Specifically they were

charged with conspiracy to violate 18

U.S.C. §§ 471 and 474 as proscribed in

18 U.S.C. § 371, and several violations

of 18 U.S.C. § 474. (ibid.).

3.

During trial the indictment against

Harold Clements was dismissed. As to the

other defendants the jury found Richard

Clements guilty of three of the five

counts and the other defendants guilty

on all counts.

All remaining defendants appealed to

the United States Circuit Court for the

Seventh Circuit, and, on September 18,

1984, that court affirmed the judgment.

John Belzer filed a suggestion that the

case be heard by the Seventh Circuit in

bane on October 1, 1984. Treating the

suggestion as a petition for rehearing as

well as a request for in banc hearing,

the Seventh Circuit denied it on Octo-

ber 18, 1984. (App. C, infra, 40a-45a).

2. Statement of Facts.

Counterfeiting in 1982

During the summer of 1982 a James

Farthing traveled from Indiana to Florida

4.

to purchase some counterfeit currency

from John Belzer and John Evans. No pur-

chase took place because of the bills’

poor quality. (App. A, infra, 3a). Bel-

zer and Evans attempted to produce coun-

terfeit material in Indiana. They used

various items of equipment which they

had purchased in that state. (ibid.).

Richard Clements’ involvement in the

venture began with his providing $5,000

to partially finance the venture. (Id.,

3a-4a). While Clements knew Farthing,

he did not know Belzer or Evans until a

trip to Florid® in February, 1983.

(Tr. 731, 1237).

The counterfeiting venture in 1982

failed. After several weeks of effort

Farthing, Belzer and Evans abandoned the

project. Belzer and Evans returned to

Florida. Clements had the equipment

5.

hauled away and stored in a trailer.

(App. A, infra, 4a).

In early December, Clements contacted

Farthing about producing counterfeit

currency. He expressed interest in hav-

ing the other actors (Belzer and Evans)

return to Indiana and participate. (id.,

5a).

The Government Becomes Aware

Sometime before December 1982, the

Secret Service learned that Farthing was

involved in a counterfeiting operation.

By December it knew that Farthing had

been arrested on Indiana state drug

charges. (ibid.).

An agent of the Secret Service con-

tacted Farthing in late January, 1983.

The agent obtained Farthing'’s agreement

to assist the Service in an investigation

of Belzer, Evans and Clements in return

for help with his state charges. (id.,

5a-6a).

The Investigation

The Secret Service gave Farthing tape

recording equipment. On February l,

1983 and for several days thereafter,

Farthing initiated or engaged in several

telephone conversations with Clements,

Evans and Belzer. During those conver-

sations, Farthing promoted the idea of

counterfeiting currency in Indiana. (App.

A, infra, 6a-8a). None of the future

defendants was opposed to the idea of

counterfeiting, but Farthing was required

to persuade Belzer and Evans to leave

Florida to do so; both men resisted the

idea of traveling to Indiana to do the

work. (id., 8a).

Farthing did at length prevail. In

the process he promised Belzer and Evans

that they would receive $500 each at the

outset, that Clements would finance the

operation and that Clements would drive

7

them from Florida to Indiana. (App. A,

infra, 8a).

The Conspiracy Underway

Clements did drive to Florida where

he first met the two men. On February

10, Clements, Belzer and Evans began the

drive to a slaughterhouse on Harold

Clements' farm. It was there that the

counterfeiting was to take place, the

equipment in Clements possession having

been moved there. (id., 8a-948).

While the three men were on their way,

the Secret Service rented a graphic arts

camera and delivered it to the slaughter-

house. Clements, Belzer and Evans arri-

ved at the farm on Saturday, February ll.

The next day, Sunday, the effort to coun-

terfeit began. At the outset Farthing

taught Belzer and Evans how to operate

he graphic arts camera. (id., 9a-10a).

Farthing visited the slaughterhouse

8.

nearly every day. He supplied the Secret

Service with daily status reports on tne

operation. (App. A, infra, 9a-1l0a).

The Search Warrant and Changed Facts

The Secret Service obtained a search

warrant on Monday, February 14, 1983.

In the meantime, at Belzer's and Evans'

request, on Wednesday, February 16, in

the company of a Secret Service agent,

Farthing bought additional printing sup-

plies, including green tinted paper.

Later that day he delivered the material

to the slaughterhouse. (id., 10a; Tr.

247-48, 668-69, 671-73, 736, 778, 780-821,

1279-80; Belzer Exh. E).

A completed counterfeit bill ($20.00)

-- that is, with a front and back -- was

not produced until later in the day on

Thursday, February 17, 1983. (Tr. 165-66,

220-21, 704-05).

The Secret Service and others executed

9.

the search warrant at 10:00 or 11:00 p.m.

on Friday, February 18, 1983. (App. A,

infra, 10a; Tr. 169, 324, 877).

3. The Seventh Circuit's Decision.

The Defendants’ Position

The primary claim by all the defen-

dants on appeal was that, while there was

evidence that each was predisposed to

commit offenses which involved counter-

feiting, the government's actions were

such that,

(a) their rights to due process

under the United States Con-

stitution were violated; and

(b) their convictions should be

reversed on the basis of the

court's authority and duty

to supervise its processes.

The defendants’ positions were based

on contentions that the Secret Service

became so involved in the criminalizing

process that it instigated and underwrote

a crime that, without its involvement,

10.

would and could never have occurred. As

an essential part of their position the

defendants argued that the Secret Ser-

vice's act of waiting for four days be-

fore executing the search warrant vio-

lated their rights under the Fourth

Amendment.

During that four day wait, defendants

contended,

(a) the government's informant

Supplied them with printing

Supplies and green tinted

paper,

(b) the defendants began to pro-

duce completed counterfeit

currency one day before the

search occurred.

As a result, the facts on which the war-

rant was issued necessarily were changed

-- in one case by the acts of the Secret

Service's own agent.

The Appellate Court's Reaction

The Seventh Circuit ruled that the

Secret Service's actions did not con-

ll.

stitute "outrageous government conduct

in violation of the due process clause"

and did not present the court with a

basis for exercise of its supervisory

powers. (App. A, infra, 28a).

As to the Secret Service's handling

of the search warrant and its bearing on

the due process claim, the court ruled

that defendants failed to show that the

government agents intended to do wrong

by waiting. (id., 30a-3la). The court

implicitly suggested in the process that

government agents, armed with a search

warrant, could wait as long as needed for

the subjects of the future search to

create the contraband the search was in-

tended to recover. (id., 3la-32a).

Having addressed the defendants'

Fourth Amendment argument on the merits,

the court concluded that it need not de-

cide that executing the warrant on the

12.

ee ee ey ey w > seein x nN

oe ee a ee eee ee eee ee ee ee eS ee eee ee eee ew Te

changed facts referred to made it in-

valid. The court based its conclusion

on the ground that the only way such in-

validity could be preserved is by a

motion to suppress evidence. The court

went on to state, however, that even

were improper execution of a search

warrant relevant to a due process argu-

ment, where, as in this case, it was not

Shown that the government "intentionally

manipulated or abused the judicial pro-

cess," its conduct would not provide

sufficient basis for reversal. (App. A,

infra, 35a-37a).

REASONS FOR GRANTING THE WRIT

This Court Should Review the "Out-

rageous Conduct" Standard Hereto-

fore Used in Due Process Entrapment

Cases Because it is Vague, Inher-

ently Subjective and, Finally, In-

Spires, Rather than Limits, a Mul-

tiplicity of Trial Court Issues

and Consequent Appellate Litigation.

In Hampton v. United States, 425 U.S.

484, 492-94, 497, 499 (1976) this Court

13.

acknowledged that the due process clause

might invalidate the conviction of a

defendant who, because he was predis-

posed to commit crime, could not rely on

the "common law" defense of entrapment

recognized in Sorrells v. United States,

287 U.S. 435, 451 (1932).

As is well known, Sorrells embodied

what was to become a continuing debate on

whether evaluation of "common law" en-

trapment was to be done by an objective

or by a subjective standard. id., 451-52,

458-59. The objective standard, pro-

posed by Justices Roberts in Sorrells,

id., 454-55, 457-59, and Frankfurter in

Sherman v. United States, 356 U.S. 369,

382-85 (1958), among others, called for a

weighing of the government's actions.

According to this view the moral worth

and intent of the defendant was irrele-

vant. The theory that succeeded was the

14.

subjective standard. It made the defen-

dant's character and intent a condition

| precedent to determining whether an en-

trapment occurred. If evidence support-

ed the fact finder's conclusion that the

defendant was predisposed, the entrap-

ment defense was not available to him --

presumably no matter what the government

might have done to bring him to the dock.

See, Hampton v. United States, supra,

425 U.S. 484, 488-90.

No doubt it was the implicit radical-

ism of the conclusion just expressed

("if predisposed, the government can do

anything") that compelled recognition of

the due process defense in United States

v. Russell, 411 U.S. 423, 431-32 (1973)

and Hampton. However, after more than

eight years of lower courts' straining to

define what conduct calls the defense into

play, e.g., United States v. Kaminski,

15.

703 F.2d 1004, 1009 (7th Cir. 1983) ("The

Supreme Court has not yet given any con-

tent to the principle that governmental

misconduct may bar prosecution even ab-

sent any other deprivation of defendant's

constitutional rights."); United States

v. Jannotti, 673 F.2d 578, 606 (3ra Cir.

1982), cert. denied, 457 U.S. 1106 (1983)

(". . edelineation of the conduct cir-

cumscribed by the due process defense is,

at best, elusive."), it seems appropri-

ate for this Court to clarify the situa-

tion.

If the Court wishes to layer an addi-

tional, wholly subjective, standard on-

to the Sorrells-Sherman type of situa-

tion, already governed by, at least, a

partially subjective test, it should say

so. Then lower courts need not strain to

find precedent for the conclusions they

16.

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,

;

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reach in response to claims of due pro-

cess violations.

On the other hand, it seems not im-

possible to establish a set of objective

criteria by which government conduct in

the course of intrusive or pre-emptive

investigations can be measured. The New

York Court of Appeals did so as it con-

strued its due process clause. People

v. Isaacson, 44 N.Y.2d 511, 521-22, 406

N.Y.S.2d 714, 719-20, 378 N.E.2d 78,

83 (1978). Commentators have urged in

the context of cases similar to this one

that a Rochin "shocks the conscience"}

"standard" need not be used. Note,

Entrapment as a Due Process Defense:

Developments After Hampton v. United

States, 57 Ind. L.J. 89, 102-13 (1982);

Gershman, Entrapment, Shocked Consciences,

and the Staged Arrest, 66 Minn. L.Rev.

567, 596-611 (1982).

1. Rochin v. California, 342 U.S. 165,

172 (1952).

17.

The case before this Court demonstra-

tes the need for order and predictability.

No doubt consistent with an inherent bias

in favor of predictability, the appellate

courts are attempting to give substance

to the terns "outrageous conduct.”

One appellate court has concluded that

the requisite level of outrageousness is

not established unless “coercion, vio-

lence or brutality to the person" is

shown. “Flagrant misconduct on the part

of the police” is not enough. United

States v. Kelly, 707 F.2d 1460, 1476

& n. 13 (D.C. Cir.) cert. denied, 104

S.Ct. 264 (1983) (Ginsburg, J., in sep-

arate opinion).

On the other hand the Seventh Circuit

has added the word “truly” to bring some

definition to the problem. Due process

will not provide a defense unless the

official conduct is “truly outrageous.”

18.

However, the "truly outrageous" standard

might be avoided in a due process entrap-

ment case if violation of an independent

constitutional right can be shown, In

United States v. Kaminski, Supra, 703

F.2d 1004, 1009, the court said,

Assuning no independent consti-

tutional right has been violated,

governmental misconduct must be

truly outrageous before due pro-

cess will prevent conviction of

a defendant.

In United States v. Thoma, 726 F.2d 1191

(7th Cir.) cert. denied, 104 S.Ct. 2683

(1984), the defendant, taking his cue

from Kaminski, argued that his indepen-

dent right under the First Amendment had

been violated in the course of govern-

mental misconduct and therefore the "truly

outrageous standard” should not apply to

his due process entrapment defense. In

response the court acknowledged t.¢

argument,

19.

We. . .agree that if the

Government violated this

{constitutionally protected]

right in the course of in-

vestigating defendant, then

the "truly outrageous" stan-

dard would not be applicable.

Id., 1198.

It was, of course, this language in

Kaminski and Thoma that inspired the

Fourth Amendment argument below. If the

defendants’ Fourth Amendment rights had

been violated by a delay during which the

facts were changed (in part by the Govern-

ment itself), and during which at least

one crime, counterfeiting $20 bills, was

effected, then by its own standard the

Seventh Circuit would be compelled to use

some standard other than “truly out-

rageous." What that standard might be

remains at this point unknown.

What has just been said might be dis-

missed as nothing more than carping by

disappointed defense counsel. That is

not .ts intent.

20.

What Kelly, Kaminski and Thoma as well

as the other cases cited earlier reflect,

is disagreement, confusion and what

appears to be an utter lack of definition

as inferior courts attempt to cope with a

standard that is no standard at all.

On the contrary, the words "outrageous

conduct” appear to be achieving nothing

more than formless litigation in every

case where the government's actions

appear in any way to be intrusive and

where the defendant might be found to be

predisposed. That description applies to

a good number of cases flowing through

the federal system.

21. s

CONCLUSION

After more than eight years of form-

lessness and its effects, it is time for

this Court to review the bases on which

the due process entrapment defense will

lie. The “outrageous conduct" formula is

subjeccive, incapable of definition, and,

because it inspires litigation rather

than governing it, is cost ineffective.

A writ should issue in this case.

Respectfully submitted,

PARKER. BRUNNER & HAMILTON

John C. Hamilton

1100 Haziitt Building

120 W. LaSalle Avenue

South as) IN 46601

al as -414

cr for Petitioner

Of Counsel:

KELLY LEEMAN

1300 E. Broadway

Logansport, IN 46947

(219) 722-3881

November 1984

APPENDIX A

Opinion of the Court of Appeals

of

September 18, 1984

la

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Argued May 31, 1984

Decided September 18, 1984

Nos. 83-2130, 83-2146, 83-2175

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Ve

JOHN A. BELZER, JR., JOHN M. EVANS

and RICHARD CLEMENTS,

pefendants-Appellants

Before:

POSNER and FLAUM,

Circuit Judges

and

GORDON , *

Senior District Judge

* The Honorable Myron L. Gordon, Senior

District Judge for the Eastern District

of Wisconsin, is sitting by designation.

2a

FLAUM, Circuit Judge. This is an appeal

following a jury trial in which the

defendants were convicted of violating

federal counterfeiting laws. The defen-

dants' main argument on this appeal is

that the government's undercover opera-

tion leading to their arrests was so

outrageous as to violate fundamental

principles of due process. We disagree,

and we affirm the convictions.

“ ee eee oe eres

3a

I

During the summer of 1982, James

Farthing traveled from Indiana to Florida

to purchase counterfeit currency from the

defendants John Evans and John Belzer.

He did not make the purchase, however,

because the quality of the bills was poor.

Later that summer, Farthing, Evans, and

Belzer decided to make counterfeit cur-

rency together. They bought a printing

press from an Indiana company, as well as

an arc light plate burner, a vacuum table,

a platemaker, paper, and various printing

supplies. Shortly thereafter, they de-

termined that they needed $5,000 more to

finance their counterfeiting operation,

and began to search for someone to pro-"

vide them with this amount.

At the same time, the defendant Rich-

ard "Pete" Clements was looking for a

4a

source of counterfeit currency. Through

mutual acquaintances, it was arranged

for Clements to provide Farthing, Evans

and Belzer with $5,000. Clements sup-

plied the money, requesting that in re-

turn he get as much counterfeit currency

as he could.

Evans, Belzer and Farthing then began

to attempt to produce counterfeit cur-

rency in a garage in Indiana. However,

they had difficulty operating the print-

ing press and were unable to produce

bills of high quality. After several

weeks they abandoned the project. At

this point, sometime in November 1982,

Evans and Belzer returned to Florida,

and Clements had the equipment hauled

away and stored in a trailer.

1. Clements, the only defendant who

testified at trial, disputed this ver-

sion of the facts. He stated that he

gave the $5,000 to an acquaintance as a

loan to help finance a vending machine

business.

5a

In early December 1982, Clements con-

tacted Farthing about the possibility of

renewing the counterfeiting effort. Dur-

ing December and January, the two had

several more discussions about this sub-

ject. During these aiscussions, Clements

expressed an interest in having Belzer

and Evans return to Indiana to resume the

counterfeiting.

In late January 1983, Farthing was

contacted by United States Secret Service

Agent Lawrence D. Haas, Jr. The Secret

Service had received a tip from a con-

fidential informant several months ear-

lier, informing it that Farthing was in-

volved in a counterfeiting operation.

In December 1982, the Secret Service had

learned that Farthing had been arrested

on drug charges in Indiana. Thus, in

late January 1983, Haas and Farthing dis-

cussed the possibility of Farthing

6a

assisting the Secret Service in an under-

cover investigation of Belzer, Evans,

and Ciements. Farthing agreed to assist

the Secret Service, and in return Haas

promised to make Farthing's cooperation

known tc the Indiana authorities invol-

ved in Farthing'’s drug prosecution. Haas

Supplied Farthing with equipment for tape

recording phone conversations, and re-

quested that he contact Clements, Belzer

and Evans about resuming their counter-

feiting operation.

On February 1, 1983, Farthing made the

first of many tape recorded phone calls

to the defendants. In a conversation

with Clements, he suggested that they

plan another attempt at counterfeiting,

and Clements agreed. The two men then

began to discuss the details of the oper-

ation. At this time, Clements indicated

that he would be willing to travel to

7a

Florida to pick up Belzer and Evans and

bring them back to Indiana.

On February 2, Evans phoned Farthing,

returning a call Farthing had made to him

earlier. They discussed the counter-

feiting operation. Farthing told Evans

that they would be purchasing additional

equipment and thus would be able to make

counterfeit bills of better quality than

those they had made previously. Evans

then indicated that he could make counter-

feit money, and that he would be willing

to try again. During the next few days,

Evans and Farthing had several more phone

conversations in which they discussed

counterfeiting. During one of these dis-

cussions, Evans stated that he and Belzer

in the past had made counterfeit currency

that was not high quality, but that had

“passed.” Tr. at 571.

8a

During several other phone conversa-

tions with Farthing, Evans showed some

resistance to traveling to Indiana. He

stated that he and Belzer would prefer

to run the counterfeiting operation in

Florida. At several points, Evans in-

dicated that they might withdraw from the

scheme altogether. Farthing also spoke

with Belzer, who also stated that he did

not want to leave Florida. Ultimately,

however, Farthing was able to persuade

Evans and Belzer to travel to Indiana.

In so doing, he promised them that they

would receive $500 each up front, that

all the money to finance the operation

would be supplied by Clements, and that

Clements would travel to Florida and

drive them back to Indiana.

On February 10, Clements met Belzer

and Evans in Florida and the three men

set out for Indiana. While they were

9a

traveling, the Secret Service rented a

graphic arts camera and brought it to a

Slaughterhouse located on a farm that was

owned by Clements'’s brother, which is

where the counterfeiting operation was to

take place. This camera is used to make

photographic negatives which are then

used to make offset printing plates, and

it is available commercially. The other

counterfeiting equipment had already been

set up in the slaughterhouse.

Clements, Evans, and Belzer arrived at

the fasm on February 11, and the counter-

feiting operation began the following day.

Throughout the next week, Belzer and

Evans worked on producing the counterfeit

currency, with Belzer primarily responsi-

ble for making the printing plates and

Evans primarily responsible for operating

the printing press. Farthing was not

actively involved in the day-to-day

10a

operation, though he did visit the

slaughterhouse nearly every day. In

addition, Farthing instructed Evans and

Belzer on operating the graphic arts

camera, and he supplied them with some

light sensitive tape used in platemaking.

During this time, Farthing was supply-

ing the Secret Service with daily status

reports on the counterfeiting operation.

On February 14, the Secret Service sought

and received a search warrant for the

Slaughterhouse. On February 16, before

the warrant was executed, Farthing pur-

chased additional printing supplies that

had been requested by Evans and Belzer,

and delivered them to the defendants. On

February 18, pursuant to the warrant

issued several days earlier, the Secret

Service entered the slaughterhouse and

arrested the defendants.

The defendants were charged with five

lla

counts of violating federal counterfeit-

ing laws, 18 U.S.C. §§ 471, 474 (1982),

and with conspiracy to violate federal

law, 18 U.S.C. § 371 (1982). The case

proceeded to a trial before a jury on

April 18, 1983. The defendants' primary

defense was that they had been entrapped

or that they had been denied due process

of law because of governmental misconduct.

The jury returned guilty verdicts against

Belzer and Evans on all five counts, and

against Clements on three of the counts,

acquitting him on the other two. The

defendants’ post-trial motions were

denied, and each was sentenced to prison.

Evans for five years and Belzer and

Clements for three. This appeal follow-

ed.

II.

The defendants have not argued en-

trapment on this appeal, conceding that

12a

there was sufficient evidence of their

predisposition to counterfeit to support

the jury's verdict. Thus, their primary

argument is that the government under-

cover operation leading to their arrests

violated their rights to due process of

law and that therefore their convictions

should be vacated. In addition, they

contend that the government's four-day

delay in executing its search warrant

violated their constitutional rights,

and that this is another reason that

their convictions should be vacated.-

As an alternative to their contention

>. Clements has also argued that the

district court denied him a jury drawn

from a fair cross-section of the commun-

ity, because it excused the only member

of the jury panel who resided in his

county. Clements has not claimed, how-

ever, that the process used to derive the

panel was in any way unfair. In view of

this, and because tne district court had

a proper reason for excusing the prospec-

tive juror - his exposure to pre-trial

publicity - we reject Clements’ argument.

Tn

l3a

that their rights were violated, the

defendants argue that the government's

conduct in this case compels us to vacate

the defendants' convictions in the exer-

cise of our supervisory powers over the

administration of criminal justice.

A. The Undercover Operation

In United States v. Russell, 41l U.S.

423, 431-32 (1973), the Supreme Court

Stated that "we may some day be present-

ed with a situation in which the conduct

of the law enforcement agents is so out-

rageous that due process principles would

absolutely bar the government from in-

voking judicial processes to obtain a

conviction." Several years later, in

Hampton v. United States, 425 U.S. 484

(1976), five justices of the Supreme

Court reaffirmed the principle that

criminal defendants may present a defense

based on outrageous governmental miscon-

l4a

duct, regardless of the defendant's pre-

disposition to commit the crime charged.

This circuit also has recognized the

existence of such a defense. See, e€-g.,

United States v. Kaminski, 703 F.2d

1004, 1009 (7th Cir. 1983).

The due process defense, however, has

been invoked successfully only on a few

occasions. As this court has noted:

[A]n examination of the post-

Hampton cases decided by the

courts of appeals indicates

that due process grants wide

leeway to law enforcement

agencies in their investigation

of crime. Assuming that no

independent constitutional

right has been violated, govern-

mental misconduct must be truly

outrageous before due process

will prevent conviction of

the defendant.

Id. at 1009. The defendants argue that

the Secret Service's conduct in investi-

gating their counterfeiting activity was

"truly outrageous." We disagree.

15a

The defendants' main argument is that

the government "manufactured" the counter-

feiting crime of which they were con-

victed. According to the defendants, the

crime would not have occurred but for the

government's participation, through its

informant, Farthing. Specifically, the

defendants complain that Farthing induced

them to resume the counterfeiting efforts

that they already had abandoned, and

furthermore that without the supplies and

expertise that he provided, they would

not have been able to produce counterfeit

bills of sufficient similitude to real

currency to constitute a violation of

federal counterfeiting laws. See,

United States v. Johnson, 586 F.2d 395,

397-98 (5th Cir. 1978) (discussing the

requirement under 18 U.S.C. § 474 that

counterfeit currency resemble genuine

currency), cert. denied, 440 U.S. 926

16a

(1979).

Turning first to the defendants' claim

of inducement, this court recently stated

that "[w]lhen a defendant is predisposed

to commit the offense due process cannot

be violated by Government induce-

ment. .. ." United States v. Thoma,

726 F.2d 1191, 1199 (7th Cir.), cert.

denied, 104 S. Ct. 2683 (1984). We have

not stated, however, that the inducement

offered by the government cannot be con-

sidered in determining whether the govern-

ment's conduct is so outrageous as to

warrant the invocation of our supervisory

3

powers. Assuming that it can be, it

3. Because in the exercise of our

Supervisory powers we focus on the actions

of the government rather than on the

defendant, we can imagine a situation

where the nature of the government in-

ducement should be considered in assess-

ing the outrageousness of the govern-

ment's conduct, even though the defendant

is predisposed to commit the crime char-

ged. In this case, for example, if the

Secret Service, through Farthing, had

(Footnote continued on following page)

17a

is nevertheless clear that the govern-

ment's inducement in this case was pro-

per. This is not a case in which the

government's inducement to commit the

crime was “exceedingly generous," see

United States v. Jannotti, 673 F.2d 578,

600 (3d Cir.) (en banc), cert. denied, 457

U.S. 1106 (1982) or in some other way

excessively coercive. See, Greene v.

United States, 454 F.2d 783 (9th Cir.

1971) (government agent used veiled

threats to induce crime). In fact, the

government did not even initiate the

counterfeiting operation. Not only had

there been a prior counterfeiting attempt

involving alli of the defendants just be-

2. (continued) made a credible threat of

violence toward one of the defendants

and/or his family members if he refused

to assist in the counterfeiting operation,

we would be abdicating our responsibility

if we did not consider this fact in assess-

ing the defendants' outrageous conduct

claim.

18a

fore the government's intervention, but

it was the defendant Clements who first

contacted Farthing about resuming the

operation. Farthing, working undercover,

did induce the already predisposed team

of Evans and Belzer to continue their

counterfeiting, but the small amount

offered to them hardly gives rise to an

outrageous government conduct claim.

"(T]he offer of a reasonable inducement

[is a] proper means of investigating

crime." United States v. Kaminski, 703

F.2d at 1009.

The defendants also complain that the

government provided them with supplies

and expertise that were indispensable to

4 It is

4. There is some indication in the re-

cord that Farthing may have paid for some

of the supplies himself, or that he may

have been reimbursed by Clements and not

the Secret Service for some of his ex-

penses. Whether this lessens the govern-

ment's degree of involvement in the

(Footnote continued on next page)

their counterfeiting operation.

19a

government may supply some items of value

toward the perpetration of the criminal

enterprise. See, e.g., United States v.

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

(government supplied legally obtainable

chemicals to illegal drug manufacturers),

cert. denied, 434 U.S. 1108 (1978); United

States v. Gonzales, 539 F.2d 1239 (9th

Cir. i976) (government agents were

"actively involved in purchasing ink

and other supplies, as well as a func-

tioning press," in support of counter-

feiting operation). Cf. Hampton v.

United States, 425 U.S. 484 (1976)

(government supplied actual contraband

whicn defendant was convicted of sell-

ing). Here, the supplies and equipment

provided by Farthing were all commer-

4. (continued) counterfeiting operation

for purposes of az outrageous government

conduct claim is a question we need not

address, in view of our holding.

20a

cially available, and could have been

purchased by the defendants themselves.

Moreover, Farthing provided only one of

several pieces of equipment necessary to

the counterfeiting operation, and only a

portion of the necessary supplies. Under

these circumstances, the government's

degree of involvement in supplying the

means to commit the crime falls short of

being considered outrageous.

With regard to the expertise provided

by Farthing, the defendants point to

their earlier bungled counterfeiting

attempt as evidence that they could not

have produced passable counterfeit bills

without his help. However, the record

indicates that Farthing had very little

to do with the actual production of the

counterfeit bills; all he did was in-

struct the defendants on operating the

graphic arts camera. This was not such

2la

a complex task that they probably could

not have done it without his help. See,

United States v. Twigg, 588 F.2d 373,

381 (3d Cir. 1978) (outrageous govern-

ment conduct found where government agent

provided all knowledge of chemistry nec-

essary to manufacture illegal drug; de-

fendants had no knowledge of chemistry).

5. The defendants rely heavily on Twigg

which is the only court of appeals de-

cision since Hampton to vacate a con-

viction on the basis of outrageous gov-

ernment conduct. In Twigs the Third Cir-

cuit found that the Drug Enforcement

Agency was excessively and thus imper-

missibly involved in the illegal manu-

facture of methamphetamine. Twi is

distinguishable from the case before us

because in Twi the government agents

and their informant originated the idea

of establishing an illegal methampheta-

mine laboratory, and the informant was

"completely in charge” of the production

process and supplied all the laboratory

expertise. United States v. Twigg, 588

F.2d at 380-81. In addition, we note

that there is a significant question as

to whether Twi is still good law in the

Third Circuit. See, United States v.

Beverly, 723 F.2d 1l, 12 (3d Cir. 1983)

(per curiam).

22a

The defendants did have some experience

counterfeiting, and, according to Evans's

own statement, in the past had produced

counterfeit bills that had “passed.”

Under these circumstances, it was cer-

tainly permissible for Farthing to pro-

vide the defendants with some technical

expertise to facilitate their counter-

feiting. See, United States v. Reifsteck

535 F.2d 1030, 1035 (8th Cir. 1976)

(actual printing of counterfeit bilis

done by government agents); United States

v. McGrath, 494 F.2d 562 (7th Cir. 1974)

(government agents supervised actual

printing of counterfeit bills).

Even considering all of the govern-

ment's actions together, rather than

separately, we are not persuaded that the

government can be said to have "manufac-

tured" the defendants’ crime. The de-

fendants have conceded that there was

23a

sufficient evidence for the jury to find

them predisposed to counterfeit. While

we recognize that a person who is pre-

disposed to commit a crime might choose

not to act on that predisposition, see

Note, Entrapment as a Due Process De-

fense: Developments After Hampton v.

United States, 57 Ind. L.J. 89, 126-29

(1982), or in unusual circumstances

might be unable to commit the crime,

courts have never required prosecutors to

prove to a high degree of certainity that

a predisposed defendant in a particular

case actually would have committed the

crime even without the government's in-

tervention. Cf. United States v. Kaminski

703 F.2d at 1008 ("there is no infallible

means of divining a defendant's predis-

position after the fact"). Here, the

Secret Service intercepted a counter-

feiting operation that at the time was,

24a

if not ongoing, at least fairly likely

to be revived successfully. On the

facts of this case, we reject the defen-

dants' claim that the government "manu-

factured" the crime of which they were

convicted.

In addition to arguing that the Sec-

ret Service “manufactured” their crime,

the defendants complain of the manner in

which the investigation was conducted.

Specifically, they claim that the Secret

Service agents had "an overriding desire

to obtain a conviction as an end in itself

and to create a crime rather than pursue

legitimate law enforcement goals of pre-

venting further crime.” Clement's Br.

at 20. In addition to reiterating the

claims that we have already rejected,

the defendants support this argument by

pointing to the government's use of "a

known counterfeiter and convicted felon"

25a

as an informant, and to "intentionally

- « « deceptive and dishonest acts" com-

mitted by Farthing in the course of his

undercover work. Clements's Br. at 17,

20.

We can reject these claims without

extensive discussion. "[A]rtifice and

stratagem, including the use of paid in-

formants whose employment is made neces-

sary by the investigation, may be con-

stitutionally resorted to to uncover and

identify those engaged in criminal en-

terprises." United States v. Cuomo, 479

F.2d 688, 692 (2d Cir.), cert. denied,

414 U.S. 1002 (1973). See also ynited

States v. Russell, 411 U.S. at 436

("there are circumstances when the use

of deceit is the only practicable law

enforcement technique available”). As

this court has stated, "Undercover pol-

ice work in general, and the use of men

26a

such as [the informant] in specific, is

an unattractive business, but that is

the nature of the beast... ." United

States v. Kaminski, 703 F.2d at 1010.

Here, we find nothing outrageous in the

use of Farthing or in the perpetration

of a few deceptive acts and statements

in the furtherance of the investigation.

The defendants also argue that the

Secret Service's undercover investigation

was particularly outrageous because it

was unnecessary. They claim that the

government could have prevented them from

counterfeiting by simply monitoring any

activity around the printing press, a

large, rather immobile piece of equip-

ment, or by investigating their previous

counterfeiting attempt and prosecuting

them for that. However, it is not clear

27a

to us that either of these choices would

have been effective or even feasible.

More important, we are not inclined to

second-guess the executive branch con-

cerning its choice of law enforcement

techniques. While we hesitate to say

that the government's available alterna-

tives can never be relevant to a court's

consideration of an outrageous govern-

ment conduct claim, we are mindful of

the Supreme Court's admonition that the

federal judiciary should not exercise a

""chancellor's foot' veto over law en-

forcement practices of which it [does]

not approve." United States v. Russell,

28a

411 U.S. at 435.°

Here, we find nothing

outrageous about the government's choice

of law enforcement techniques. Hence,

we reject the defendants’ claim that the

government's undercover investigation

constituted outrageous government con-

duct in violation of the due process

clause, or that it provides us with a

basis for the exercise our supervisory

powers to vacate the defendants’ con-

victions.

6. Many courts explicitly have ex-

pressed their disapproval of the under-

cover law enforcement practices being

challenged in cases before them, while

at the same time upholding the constitu-

tionality of those practices. See e.

United States v. Beverly, 723 F. F.2d L "13

(3d Cir. 1983); United States v. Garrett,

716 F.2d 257, 275 n.10 (5th Cir. 1983);

United States v. Kelly, 707 F.2d 1460,

1477 (D.C. Cir.), cert. denied, 104 S.

Ct. 264 (1983); United States v. Leja,

563 F.2d 244, 246 (6th Cir. 1977), cert.

denied, 434 U.S. 1108 (1978).

29a

B. The Search Warrant

The defendants have also challenged

the government's execution of its search

warrant. Specifically, they claim that

the government agents sought a warrant

and then purposely delayed its execution

until they were sure that the defendants

had produced counterfeit currency of

sufficient similitude to real currency

to constitute a violation of federal law.

They further object to the fact that

during the four-day interval between the

procurement of the warrant and its exe-

cution, Farthing provided them with more

printing supplies. They contend that

the government's handling of the search

warrant amounted to outrageous govern-

ment conduct, particularly in combina-

tion with the rest of the undercover in-

vestigation. Alternatively, they argue

30a

that the delayed execution of the search

warrant amounted to an independent vio-

lation of their fourth amendment rights,

because the facts forming the basis on

which the warrant was issued were changed

before it was executed. They claim not

that this violation of their rights re-

quired the suppression of evidence at

trial ~-- they are foreclosed from argu-

ing this because they did not raise it

at trial -- but that it “is itself inde-

pendent and most compelling evidence of

the constitutional misconduct that in-

fected all parts of this prosecution."

Belzer's Reply Br. at 2.

We do not find that the government's

delayed execution of the search warrant

makes its conduct in this case “outra-

geous." Although the defendants have

suggested that the Secret Service manip-

3la

ulated the judicial process by obtaining

a search warrant and then waiting to exe-

cute it until they were sure that the

defendants had committed a crime, they

failed at trial to elicit any evidence

concerning the reasons for the govern-

ment's conduct. Thus, there is an inade-

quate record to support their manipula-

tion theory. Moreover, on the facts of

this case it appears that there was no

reason for the government to have manipu-

lated the judicial process. We do not

see what advantage the government would

have gained by seeking a search warrant

before it was prepared to execute it.

While one can imagine a situation where

law enforcement officials obtain a war-

rant as quickly as possible before circum-

stances giving rise to probable cause

have a chance to change, this is not such

32a

a case. Probable cause in this case was

present as long as the defendants’ oper-

ation in the slaughterhouse was in exis-

tence, a situation that the Secret Ser-

vice was monitoring closely. Thus, the

real question is not why the government

delayed execution of the warrant, but why

it sought a warrant as early as it did.

The most obvious explanation is that

the Secret Service obtained the warrant

before realizing that the defendants had

not yet produced any counterfeit bills

of sufficient quality to pass as genuine

bills. Once they had this realization,

they decided to postpone execution of

the warrant until they would have a pro-

per basis for arresting the counterfei-

ters. According to this theory, the

government was perhaps a bit inept, but

not manipulative. Although our theory

33a

may be incorrect, the defendants have

done nothing to contradict it. In short,

the defendants are alleging that the

government's handling of the search war-

rant amounted to outrageous governmental

conduct, and yet they have failed to

make a factual showing that in securing

or executing the warrant, the government

intentionally manipulated or abused the

judicial process. In the absence of such

a record, we will not find outrageous

governmental conduct on the basis of the

Secret Service's delay in executing the

search warrant.

Nor will we find outrageous govern-

mental conduct on the basis of Farthing's

furnishing of supplies to the defendants

after the search warrant was issued.

Farthing was responding to the defen-

dants' request for him to replenish their

34a

depleted stock of supplies. To refuse

their request might have seemed unusual,

in light of his previous willingness to

assist them, and thus might have jeopar-

dized his cover. Allowing the Secret

Service in this case to continue to

assist the defendants even after ob-

taining a search warrant for their pre-

mises admittedly tends to underscore

the somewhat active role that law en-

forcement officials are permitted to

play in criminal enterprises that they

are investigating. However, this lati-

tude that we permit law enforcement of-

ficials clearly is an accepted feature

of our jurisprudence, as we have already

discussed. Given that is was permissible

for the government to furnish the defen-

dants with materials used in their coun-

terfeiting operation, we find that the

35a

fact that some of these materials were

furnished after the government obtained

its search warrant makes no difference

for purposes of this appeal.

Finally, we turn to the defendants’

Claim that the delay rendered the search

warrant defective and that thus their

fourth amendment rights were violated.

We recognize that there is at least a

question as to whether the warrant became

defective because of the delay. Compare

United States v. Bedford, 519 F.2d 650,

655 (3d Cir. 1975) (warrant must be ex-

ecuted within “reasonable time” after

issuance; reasonableness “functionally

measured in terms of whether probable

cause still existed at the time the war-

rant was executed"), cert. denied, 424

U.S. 917 (1976) with United States ex rel.

Beal v. Skaff, 418 F.2d 430, 433 (7th Cir.

1969) ("a ‘stale warrant,’ the execution

36a

of which is unduly delayed by the police

in order to assure the seizure of the

goods sought, is invalid”). However, we

need not decide that question. If the

warrant was defective, the proper remedy

would have been the suppression of evi-

dence seized pursuant to the warrant, a

remedy which the defendants chose not to

pursue. Although it is possible that the

improper execution of a search warrant

might be relevant to a claim of govern-

ment misconduct, as the defendants con-

tend, we find on the facts of this case

that even if the search warrant was de-

fective, in the absence of a showing that

the government intentionally manipulated

or abused the judicial process, the

government's conduct does not provide a

sufficient ground for vacating the

37a

the defendants’ convictions.”

The defendants’ convictions are

affirmed.

7- In United States v. Kaminski, 703

F.2d 1004, 1009 (7th Cir. 1983) and

United States v. Thoma, 726 F.2d 1191,

(7t r. 1984), cert. denied, 104

S. Ct. 2683 (1984), this court indicated

that if in the course of its investiga-

tion, the government violates the de-

fendants’' constitutional rights, the

"truly outrageous” standard would not

be applicable. We hold today that the

government's handling of the search

warrant does not invalidate the defen-

dants’ convictions, even under a stan-

dard less permissive than the “truly

outrageous” standard.

APPENDIX B

Judgment of the Court of Appeals

of

September 18, 1984

38a

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

September 18, 1984

Before

HON. RICHARD A POSNER, Circuit Judge

HON. JOEL M. FLAUM, Circuit Judge

HON MYRON L. GORDON, Senior District

Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 83-2130, 83-2146

83-2175

JOHN A. BELZER, JR., JOHN

M. EVANS, and RICHARD

CLEMENTS,

Defendants-Appellants.

ee ee ee

Appeal from the United States

District Court for the Northern

District of Indiana, South Bend

Division

No. 83 CR 2

Judge Allen Sharp

* The Honorable Myron L. Gordon, Senior

District Judge for the Eastern District

of Wieconsin, is sitting by designation.

39a

This cause was heard on the record of

the United States District Court for the

Northern District of Indiana, South Bend

Division, and was argued by counsel.

On consideration whereof, IT IS

ORDERED AND ADJUDGED by this Court that

the judgment of the said District Court

oe this cause appealed from be, and the

same is hereby AFFIRMED, in accordance

with the opinion of this Court filed this

date.

APPENDIX C

Order of the Court of Appeals

of

October 18, 1984

40a

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

October 18, 1984

Before

HON. RICHARD A POSNER, Circuit Judge

HON. JOEL M. FLAUM, Circuit Judge

HON. MYRON L. GORDON, Senior District

Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 83-2130, 83-2146

83-2175

JOHN A. BELZER, JR., JOHN

M. EVANS, and RICHARD

CLEMENTS,

Defendants-Appellants.

eNO SS Se

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF INDIANA, SOUTH BEND

DIVISION

NO. 83 CR 2

Judge Allen Sharp

* The Honorable Myron L. Gordon, Senior

District Judge for the Eastern District

of Wisconsin, is sitting by designation.

4la

ORDER

On consideration of the petition for

rehearing and suggestion for rehearing

in banc filed in the above-entitled

cause by Defendant-Appellant John A.

Belzer, Jr., no judge in active service

has requested a vote thereon, and all of

the judges on the original panel have

voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid

petition for rehearing be, and the same

is hereby, DENIED.

APPENDIX D

Excerpt from 18 U.S.C.

371 and 18 U.S.C. 471 and

18 U.S.C. 474

42a m

Section 371, Title 18 of the United

States Code, provides in part,

If two or more persons conspire

either to commit any offense

against the United States, or to

defraud the United States, or any

agency thereof in any manner or

for any purpose, and one or more

of such persons do any act to

effect the obje¢t of the conspiracy,

each shall be fined not more than

$10,000 or imprisoned not more

than five years, or both

Section 471, Title 18 of the United

States Code, provides,

Whoever, with intent to de-

fraud, falsely makes, forges,

counterfeits, or alters any

obligation or other security of

the United States shall be fined

not more than $5,000 or imprisoned

not more than fifteen years, or

both.

Section 474, Title 18 of the United

States Code, provides,

Whoever, having control, custody,

or possession of any plate, stone,

or other thing, or any part there-

of, from which has been printed,

or which may be prepared by dir-

ection of the Secretary of the

Treasury for the purpose of print-

ing, any obligation or other

43a

security of the United States,

uses such plate, stone, or other

thing, or any part thereof, or

knowingly suffers the same to be

used for the purpose of printing

any such or similar obligation or

other security, or any part there-

of, except as may be printed for

the use of the United States by

order of the proper officer

thereof; or

Whoever makes or executes any

plate, stone, or other thing in

the likeness of any plate de-

signated for the printing of such

obligation or other security; or

Whoever sells any such plate,

stone, or other thing, or brings

into the United States any such

plate, stone or other thing,

except under the direction of the

Secretary of the Treasury or other

proper officer, or with any other

intent, in either case, than that

such plate, stone, or other thing

be used for the printing of the

obligations or other securities

of the United States; or

Whoever has in his control,

custody, or possession any plate,

stone, or other thing in any manner

made after or in the similitude

of any plate, stone, or other

thing, from which any such obli-

44a

gation or other security has

been printed, with intent to

use such plate, stone or other

thing, or to suffer the same

to be used in forging or counter-

feiting any such obligation or

other security, or any part

thereof; or

Whoever has in his possession

or custody, except under auth-

ority from the Secretary of the

Treasury or other proper officer,

any obligation or other security

made or executed, in whole or

in part, after the similitude

of any obligation or other

security issued under the au-

thority of the United States,

with intent to sell or otherwise

use the same; or

Whoever prints, photographs,

Or in any other manner makes

or executes any engraving, photo-

graph, print, or impression in

the likeness of any such obliga-

tion or other security, or any

part thereof, or sells any such

engraving, photograph, print, or

impression, except to the United

States, or brings into the United

States, any such engraving, photo-

graph, print, or impression,

except by direction of some prop-

er officer of the United States; or

45a

Whoever has or retains in his

control or possession, after a

distinctive paper has been adopted

by the Secretary of the Treasury

for the obligations and other se-

curities of the United States,

any similar paper adapted to the

making of any such obligation or

other security, except under the

authority of the Secretary of the

Treasury or some other proper

officer of the United States --

Shall be fined not more than

$5,000 or imprisoned not more

than fifteen years, or both.