Opposition Brief — Winnett v. United States

FILE

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2) DEC 7 1984

No. 84-400

ALEXANDER 1.

CLERK

Office - Supreme Court, U.S.

D

STEVAS.

In the Supreme Court of the United States

OCTOBER TERM, 1984

MARVIN L. WINNETT, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

Department of Justice

Washington, D. C. 20530

(202) 633-2217

w i

As

TABLE OF AUTHORITIES

Page

Cases:

Hansford v. United States, 303 F.2d 219 ........ 4

United States v. Brooks, 567 F.2d 134.......... 5

United States v. Bryant, 716 F.2d 1091,

cert. denied, No. 83-5697 (Jan. 23, 1984) ...... 3

United States v. Buckley, 586 F.2d 498,

UR 8 e+ a re 5

United States v. Demma, 523 F.2d 981 ......... 4

United States v. DeVore, 423 F.2d 1069,

oe Re a. 5

United States v. Garrett, 716 F.2d 257,

cert. denied, No. 83-1226 (Apr. 16, 1984) ...... 4

United States v. Haimowitz, 725 F.2d 1561 ..... 4

United States v. Rhodes, 713 F.2d 463,

cert. denied, No. 83-5661 (Dec. 5, 1983) ....... 5

United States v. Smith, 629 F.2d 650,

cert. denied, 449 U.S. 994 ....... ccc ccc cccee 4

Wisniewski v. United States, 353 U.S. 901 ...... 6

Statute:

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Inu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-400

MARVIN L. WINNETT, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that he was entitled to a jury instruc-

tion on the defense of entrapment.

1. Following a jury trial in the United States District

Court for the Middle District of Tennessee, petitioner was

convicted of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. App. 1202(a)(1). He was sentenced to

18 months’ imprisonment and fined $5,000. The court of

appeals affirmed (Pet. App. Al-AS5).

The evidence at trial is summarized in the court of

appeals’ opinion (Pet. App. A2-A3). In early 1982, Lucian

Debow, a retired policeman and acquaintance of petitioner,

agreed to introduce federal law enforcement authorities to

petitioner in exchange for reduction of state charges pend-

ing against him for receiving and concealing stolen pro-

perty. Debow testified that shortly thereafter, on about

March |, petitioner telephoned Debow and asked for Deb-

ow’s assistance in selling a handgun. Debow consented and

(1)

2

petitioner brought the gun — a .44 caliber Smith and Wes-

son revolver contained in a sock — to Debow’s apartment

and left it with him. Debow then contacted the authorities

and, within the next day or two, A. TF Agent Don Watson

went to Debow’s apartment and took possession of the gun.

Debow then contacted petitioner and told him that he hada

prospective buyer for petitioner’s gun. Debow said he

would iutroduce the buyer to petitioner at an automobile

auction in Nashville. Pet. App. Al; Tr. 15-16, 50-56.

At the auction, Debow introduced Agent Watson to

petitioner, telling him that Watson was interested in buying

and selling guns. In a partially recorded conversation,!

petitioner described certain characteristics of the revolver in

question to Agent Watson, including the fact that it was an

antique, and stated that he wanted $100 for it. He also asked

Watson to return the sock in which the revolver had been

wrapped. In addition, petitioner said that Watson would

not have any problem disposing of the revolver in the

Nashville area because it “had come from the desk of an old

fellow” in Kentucky who rarely looked in the desk and

“wouldn’t miss it anyway.” Pet. App. A3; Tr. 23-24, 30-31.

Watson also opened the trunk of his car and displayed

several weapons to petitioner, including the revolver in

question, to create the impression that he was in fact a gun

dealer. Petitioner then accepted a payment of $100 from

Watson for the revolver. Tr. 23-25.?

Petitioner testified at trial that Debow was the possessor

of the gun, that Debow had asked him to pretend that it

belonged to him and to sell it to Watson for $100, and that

he never had possession of the gun. Petitioner also claimed

‘Portions of the recording were of poor quality (Pet. App. A3 n.2).

2The parties stipulated that, as alleged in the indictment, petitioner

was a convicted felon and the gun in issue had travelled in interstate

commerce (Tr. 9).

3

that the only reason he had been able to discuss the gun’s

antique character and the fact that it was wrapped ina sock

was that Debow had given him that information. Petitioner

denied that he made the other statements about the gun that

were attributed to him by Watson, even though some of

those statements appeared on the transcript of the record-

ing of the conversation. Tr. 64-73. Debow, Watson, and

petitioner were the only witnesses at the trial.

2. On closing argument to the jury, defense counsel

attempted for the first time to raise an entrapment defense.

He was interrupted by the district court, however. The court

observed (Tr. 96-97; emphasis added):

Now, under these circumstances, you can’t defend on

entrapment, not in view of the testimony of the

defendant.

* * * * *

[YJou have not made any request for entrapment.

There has been no evidence of entrapment, and the

defendant has denied the crime and the law is very clear

on that.

The district court later overruled petitioner’s objection to

the omission of an entrapment instruction from the court’s

charge to the jury (Tr. 123).

The court of appeals rejected petitioner’s contention that

the denial of an entrapment instruction constituted reversi-

ble error. First, the court noted that the Sixth Circuit

“adheres to the ‘traditional’ approach to the defense of

entrapment, which mandates the defendant to admit ‘each

and every element of the crime’ before availing himself of

the defense.” Pet. App. A3-A4, quoting United States v.

Bryant, 716 F.2d 1091, 1094 (6th Cir. 1983), cert. denied,

No. 83-5697 (Jan. 23, 1984). The court declined petitioner’s

“invitation to overrule Sixth Circuit precedent on this

4

issue” and “reaffirm[ed] the ‘traditional’ rule” (Pet. App.

AS). But the court of appeals also stated that “a review of

the record in its entirety makes it readily apparent that the

jury completely discredited [petitioner's] own testimony.

* * * The jury’s ultimate resolution of the case evinces its

decision to place greater weight upon the testimony of the

prosecutor’s witnesses in concluding that the government

had met its burden of proof, beyond a reasonable doubt,

that [petitioner] had possession of the gun prior to the

involvement of Debow and Watson in the scheme” (ibid.;

emphasis added).

3. There is no merit to petitioner’s contention (Pet. 6-9)

that this Court should review the decision below to resolve

an asserted conflict among the circuits regarding the availa-

bility of the entrapment defense. As the court of appeals

explained (Pet. App. A4), the majority of the circuits follow

the Sixth Circuit in holding that a defendant must ordinari-

ly admit commission of the offense charged before he is

entitled to an entrapment instruction. See ibid. (citing

cases). See also United States v. Smith, 629 F.2d 650,

652-653 (10th Cir.), cert. denied, 449 U.S. 994 (1980).3

Petitioner asserts (Pet. 6-8) that in United States v.

Demma, 523 F.2d 981 (1975) (en banc), the Ninth Circuit

adopted a different position. See also Hansford v. United

States, 303 F.2d 219, 221 (D.C. Cir. 1962) (en banc).

But even if this conflict exists, petitioner is not entitled to

relief, because he could not have obtained an entrapment

instruction even in a circuit that disagrees with the Sixth

ICf. United States v. Haimowitz, 725 F.2d 1561 (1 1th Cir. 1984) (the

general rule requiring the defendant to admit commission of the offense

applies, unless the government's own case contains substantial evidence

of entrapment); United States v. Garrett, 716 F.2d 257 (Sth Cir. 1983),

cert. denied, No. 83-1226 (Apr. 16, 1984) (general rule applies at least

when the proof of entrapment is contrary or repugnant to proof that the

defendant is otherwise not guilty).

5

Circuit’s approach. The settled principle, even in the circuits

in which petitioner asserts that he would have fared better,

is that a “defendant is not entitled to have the issue of

entrapment submitted to the jury in the absence of evidence

showing some inducement by a government agent and a

lack of predisposition by the defendant.” United States v.

Rhodes, 713 F.2d 463, 467 (9th Cir.), cert. denied, No.

83-5661 (Dec. 5, 1983) (emphasis in original); see, e.g.,

United States v. Brooks, 567 F.2d 134, 138 (D.C. Cir.

1977); United States v. Buckley, 586 F.2d 498, 501 (Sth Cir.

1978), cert. denied, 440 U.S. 982 (1979); United States v.

DeVore, 423 F.2d 1069, 1071 (4th Cir. 1970), cert. denied,

402 U.S. 950 (1971). In this case, as the district court

expressly stated (Tr. 96), there was “no evidence of entrap-

ment.” Petitioner testified that he never had possession of

the gun; he offered no evidence tending to show that Debow

or Watson induced him to take possession of it.

Moreover, as the court of appeals noted, the jury’s verdict

makes it clear that the jury would have rejected an entrap-

ment defense in any event. Petitioner testified that he never

possessed the weapon and merely acted as if he was the

owner, at Debow’s request; Debow testified that petitioner

possessed the weapon before Debow and Watson became

involved in the scheme at all. In convicting petitioner, the

jury must have rejected his version of the events and chosen

Debow’s. Since petitioner could not possibly have been

entrapped if he had already possessed the weapon before

Debow and Watson became involved, the jury would neces-

sarily have rejected an entrapment defense as well. Because

petitioner would not be entitled to relief even in a circuit

that did not require a defendant to admit the crime in order

6

to obtain an entrapment instruction, this case presents no

occasion for this Court to resolve the asserted conflict.*

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lee

Solicitor General

DECEMBER 1984

‘Petitioner also argues (Pet. 9) that the holding in this case and in the

other recent Sixth Circuit decisions cited in the court of appeals’ opi-

nion (Pet. App. A4) conflicts with two é@ariver Sixth Circuit cases. The

fact remains that the decision below is in accord with the long-standing

Sixth Circuit rule and, in any event, the asserted intra-circuit conflict

does not warrant the attention of this Court. See Wisniewski v. United

States, 353 U.S. 901 (1957).

DOJ-1984-12