# Petition for Writ of Certiorari — Clements v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1741%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1110 ## Text — ; cn OS, De -OL® Office-Supreme Court, USF! FILLED i | ae eae NOV 17 mee ALEXANDER | 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. | | , ; | | 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1741%3A1. Public record. Not legal advice.