Appendix — Hunt v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

J. WILTON HUNT,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH MICHAEL ROBINSON

W. GARY KOHLMAN

301 Eye Street N.W.

Washington, D.C.20001

(202) 347-6100

Attorneys for Petitioner

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TABLE OF CONTENTS

OPINION of Judges Russell, Sprouse and Michael of

United States Court of Appeals for the Fourth

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 83-5088

United States of America.

Appellee.

versus

J. Wilton Hunt. Sr..

Appellant.

Appeal from the United States District Court for the

Eastern District of North Carolina, at Wilmington.

James C. Cacheris. District Judge.

Argued: May 11. 1984.Decided: November 28. 1984

Before RUSSELL and SPROUSE. Circuit Judges. and

JAMES H. MICHAEL. JR.. United States District Judge

for the Western District of Virginia, sitting by designation.

W. Gary Kohiman (Kenneth M. Robinson on brief) for

Appellant: Francis J. Martin. Department of Justice

(Samuel T. Currin, United States Attorney on brief) for

Appellee.

RUSSELL. Circuit Judge:

Appellant J. Wilton Hunt. Sr.. a North Carolina state

district judge, was convicted following a jury trial of the

2a

following offenses: 1} conspiracy to conduct the affairs

of an enterprise. his judgeship. through a pattern of rack-

eteering activity. accepting bribes in violation of North

Carolina law. 18 U.S.C. §1962(d) and 1963 (the RICO

Statute): and 2) facilitating the making of an interstate

telephone call with the intent to carry on an unlawful

activity. gambling in violation of North Carolina law. 18

U.S.C. §1952(a). His principal defenses below were

entrapment and alleged improper conduct by government

agents in violation of due process. The defendant did not

testify at trial. Hunt now appeals from his convictions.

and we affirm.

I.

This prosecution arose from an undercover investiga-

tion of corruption in Columbus County, North Carolina

begun in 1980 by the Federal Bureau of Investigation.

‘and known by the acronym ‘“‘Colcor.’’ The Colcor inves-

tigation lasted until mid-1982. culminating in the indict-

ments of several public officials. including Judge Hunt.

The defendant was first elected to the District Court for

the 13th Judicial District of North Carolina. an area com-

prised of three counties including Columbus. in 1974.

and as a judge presided over misdemeanor cases and traf-

fic offenses. He held judicial office throughout the rele-

vant period of the Colcor investigation.

The FBI investigation was first directed toward Hunt

in August 1980. At that time Joseph Moody. who was

scheduled to appear in Hunt’s court on assault charges.

informed the FB] that Danny Edwards. a local cnminal.

had claimed that he could bribe the judge. The FBI gave

Moody $300-to deliver to Edwards. who was supposed to

use the money for an attempted payoff. Hunt never ap-

peared for the purportedly arranged meeting with Ed-

3a

wards. which was under FBI surveillance. and Edwards

evidently pocketed the bribe money.

Nevertheless, the FBI continued its investigation of

Hunt. and subsequently Moody informed the FBI that

another individual. James Carroll. had also claimed that

he could ‘“‘deliver”’ the judge. FBI agent William L. Red-

den. together with Moody. met Carroll at the Roxanne

Club. a bar in Whiteville. North Carolina which Carroll

operated. on October 23. 1980. Redden. acting under-

cover, presented himself to the unwitting Carroll as Bill

Leonard, the representative of a criminal syndicate or

Organization interested in making financial investments in

the area. Redden suggested that he was interested in

acquiring the Roxanne Club for as much as $400.000, as

a front for various illegal activities such as drugs and pros-

titution. and needed protection from local authorities.

Carroll. who testified at trial as a government witness.

told Redden that he was acquainted with Hunt. and that

the judge would be ‘‘available for protection payments.”

He claimed to be a close personal friend of Hunt, and

mentioned that the judge liked to play poker. Redden

told Carroll that the assurances of protection would have

to come from Hunt personally, and asked Carroll to ar-

range a meeting.

After further pressure from Redden. who admitted

that he was “‘leaning on Carroll very hard” during this

part of the investigation. Carroll finally managed to ar-

range a meeting between Redden and Hunt in a motel

room in Whiteville on November 20, 1980. Prior to this

meeting. Carroll had told Redden that the judge ‘“‘didn’t

seem to care about the money,” and no offer of money

had been made. Redden and several other FBI agents

were present at the November 20 meeting in undercover

roles, and the conversation was secretly recorded. Red-

den did not make his supposed organized crime connec-

4a

tion explicit to the judge. but simply told Hunt that he

was interested in buying the Roxanne Club for a steak

house, suggesting that illegal poker games would be run

on the premises. There was evidence that Hunt had

previously participated in similar games. as recounted by

witnesses at trial. Redden asked the judge for ‘“‘advice”

on possible problems with law enforcement in the area,

and Hunt, far from opposing the idea of the illegal games.

told Redden that operators of the games would not be

likely to receive jail time for a first offense. Redden

made no explicit offer of money at this meeting. explain-

ing afterward that the purpose of the meeting was ‘‘just

to feel each other out to see exactly who the judge was

and what his feelings were.” He acknowledged the possi-

bility that the judge might not have been corrupt.

Soon after the November 20 meeting. Carroll made it

clear to Hunt that Redden was interested in paying

$1500 a month for the judge’s protection. Hunt replied,

“That sounds good.”’ Carroll reported the agreement to

Redden. and a second meeting took place on December

3. 1980. Redden and Carroll found the judge in a White-

ville ‘‘beer joint,” and Hunt joined the two outside in a

car. Their conversation was recorded. Redden again ex-

plained to the judge their need for protection of the

planned gambling. and the judge expressed his under-

standing. Redden then gave Carroll an envelope contain-

ing $1000 in cash, and Hunt accepted the money from

Carroll. Before leaving. Hunt said that he had never

taken money before and found it difficult. but then pro-

posed that the money be considered a ‘‘campaign contni-

bution.”” On December 22; Redden gave Carroll the

remaining $500 for delivery to the judge. who had re-

quested the money, and a week later Hunt confirmed

that he had received the payment.

5a

Hunt accepted a second $1500 protection payment

from Redden on January 26, 1981. Shortly thereafter,

Redden retired from the FBI for health reasons and was

relieved of his Colcor responsibilities. being replaced by

another FBI agent. Robert Drdak. who was introduced

to Carroll as another member of Redden’s organization,

Thomas ‘‘Doc” Ryan. Drdak first met Hunt on February

24, 1981, giving the judge his third protection payment

of $1000. He now made it clear to Hunt that the organi-

zation of which he was a part was involved in drug deal-

ing as well as gambling, and wanted the judge to set low

bonds for any of his associates who were arrested, making

it easier for them to flee. Hunt agreed to do so. He ad-

mitted to Drdak that someone else had offered him half

a million dollars to protect a local narcotics smuggling

operation, and that he ‘‘didn’t know what to do”’ about

that offer, as “it was a lot of money.” Drdak also re-

quested the judge’s assistance in “taking care of some

traffic problems” for a Mr. Moody, an important member

of their operation, who was facing suspension of his

license, and the judge consented to “handle” it.

On March 30, 1981, Drdak again met with Hunt, giving

the judge his monthly payoff. Hunt reported on his

efforts to take care of Moody’s traffic problems, assuring

Drdak that Moody’s ticket would not be treated as a con-

viction. Drdak told Hunt that he planned to open a gold

and silver business in Whiteville to serve as a front for

drug smuggling. Hunt agreed to help Drdak obtain a re-

quired license for the business. telephoning a county

commissioner and a county attorney about the matter.

The next day Drdak received his license. and subsequently

opened the business.

Drdak’s next recorded meeting with Hunt was on June

22, 1981, when a $2000 protection payment was made,

and Moody’s traffic problems were discussed, as well as

6a

the drug smuggling plans. Hunt was unwilling to partici-

pate directly in the smuggling, but agreed to talk to a

local sheriff and ‘‘put his mind at ease’’ about Drdak’s

operation. The judge admitted having previously at-

tempted to buy some smuggled diamonds.

At a September 22, 1981 meeting between Hunt and

Drdak. which was both recorded and videotaped. the

judge accepted his next $1500 payment. Hunt agreed to

take care of a speeding ticket issued to another of Drdak’s

undercover associates. Brad Hoferkamp, and this charge

was in fact subsequently reduced. Drdak had previously

asked Hunt to put him in touch with local bookmakers.

and at the September 22 meeting, Hunt gave Drdak a

South Carolina telephone number for a bookmaker.

Frank McDuffy. Drdak later placed several bets with

McDuffy. forming the basis for Count II of the indict-

ment.

Hunt and Drdak held their next meeting on October

21. No payment was made at this time. The judge ex-

pressed his concern that his name had been linked in local

rumors to a large drug operation uncovered by the police

in Brunswick County, North Carolina, and that Carroll

had been using his name indiscriminately. Hunt main-

tained that he could be of no further use to Drdak if he

were personally under suspicion.

On November 9. 1981, Drdak had his final contact

with Hunt in a telephone call concerning Hoferkamp’s

ticket. which was reduced the next day. Thereafter, the

FBI agents discontinued their relationship with the

defendant, believing that they now had enough evidence.

and that the public rumors beginning to arise concerning

the judge afforded a plausible excuse for withdrawing.

Il.

The most substantial issue raised by the appellant con-

cers the admission into evidence at trial of certain allega-

7a

tions about Judge Hunt made known to the FBI before

the start of its undercover investigation. Hunt contends

that this testimony amounted to inadmissible hearsay,

and that its use violated his right of confrontation under

the Sixth Amendment.

Specifically. FBI agent Terry D. Peters testified on

direct examination by the government that he had in-

formed both Redden and Drdak. before each went under-

cover. of three sources of allegations concerning Hunt.

First, in late summer of 1980. the FBI received a report

of an interview conducted by law enforcement authori-

ties in Virginia, in which a woman claimed that a cousin

of Judge Hunt had told her that Hunt had ‘“‘taken care

of’ some firearms charges against him. Second. members

of the Columbus County sheriffs office and the White-

ville police department asserted that Hunt was associating

socially with local criminals. had a reputation of person-

ally taking guns seized as evidence. and had attempted,

according to an unidentified source, to purchase stolen

weapons. Third, Danny Edwards told the FBI that Hunt

was involved in the sale and possession of drugs in Colum-

bus County. and had bought a M-16 automatic weapon

from Edwards. Peters later told Drdak only of similar

allegations of Hunt's criminal associations received from

county and city police during the investigation. On

direct examination by the government, Drdak confirmed

having learned from Peters about Hunt’s reputed criminal

associations, alleged involvement in narcotics. and sup-

posed acquisition of guns held in police custedy. The

Original informants for all these allegations never testi-

fied, nor did the government make any showing of their

unavailability.

The government concedes in this case that hearsay evi-

dence may not ordinarily be used as proof of predisposi-

tion where an entrapment defense is made, uiless other-

8a

wise admissible under a recognized hearsay exception. It

seems that every circuit to have considered the use of

hearsay in entrapment cases has taken a position similar

to that conceded by the government. See United States

vy Webster. 649 F.2d 346, 347 and n.1 (Sth Cir. 1981)

(en banc—with a strong dissent from nine members of the

Court): United States v. McClain, 531 F.2d 431, 437 (9th

Cir.). cert. denied, 429 U.S. 835 (1976): United States v.

Ambrose, 483 F.2d 742, 750 (6th Cir. 1973): United

States vy. Johnston, 426 F.2d 112, 114 (7th Cir. 1970):

United States v. Catanzaro, 407 F.2d 998, 1001 (3rd Cir.

1969): Whiting v. United States, 296 F.2d 512, 519 (ist

Ciz. 1961).' It has long been recognized, however, that

an “appropriate and searching inquiry” into a defendant's

predisposition may be undertaken where entrapment is

claimed, Sorrells v. United States, 287 U.S. 435, 451

(1932). The introduction of “gross hearsay,”’ Webster,

649 F.2d at 350, may well be searching. but it lias been

said not to be appropriate, especially where such hearsay

lacks both a showing of the original declarant’s unavaila-

bility and the “‘particularized guarantees of trustworthi-

ness” mandated by Ohio v. Roberts, 448 U.S. 56, 66

(1980) in satisfaction of the defendant’s rights under the

Confrontation Clause. Accordingly. had the testimony of

agents Peters and Drdak been elicited as proof of the

matters asserted, in order to show the defendant’s predis-

position to commit the offenses charged, there could be

legitimate doubt as to its admissibility.

The actual context of Peters’ and Drdak’s testimony.

however, creates greater complexity. Prior to trial, the

‘Cf. United States v. Cunningham, 529 F.2d 884, 887 (6th

Cir. 1976) (crossexamination of defendant claiming entrapment

held improper since based on hearsay reports): Hansford v. United

States, 303 F.2d 219, 226 (D.C. Cir. 1962) (uncorroborated evi-

dence of prior offense inadmissible to rebut claimed entrapment).

sa

9a

defendant had moved to dismiss the indictment on the

ground of “outrageous government investigative con-

duct” in violation of his due process rights, part of this

argument being that the government had ‘“‘no evidence of

the defendant’s illegal conduct other than that initiated

by its own operatives.”” Such a contention is also pressed

on this appeal as grounds for reversal. In cross-examina-

tion of agent Redden, who testified prior to Peters and

Drdak. the defense sought to establish that the FBI had

no evidence that Hunt might be corrupt before commenc-

ing the investigation, and Redden could not identify any

such evidence.? Counsel for the government thereupon

informed the court that Redden was apparently trying to

avoid discussing the information he had received from

Peters. and counsel for the defendant expressed his will-

ingaess to allow Redden to answer as to what he knew.?

? Cross-examination of Redden proceeded in relevant part:

Q. “What I’m driving at, isn’t it true that as of August

27, 1980, the F.B.L had no file of corruption on

Judge Hunt at all?”

A. “Tomy knowledge, no.”

Q. “That indicates that there’s no file indicating that

he is doing similar activities as of August 27, to your

knowledge, isn’t that right?”

“To my knowledge, right.”

Q. “Il want you to name for this jury, sir, one piece of

paper, one tape, one informant—and you can give

the name to the judge so | don’t reveal its confiden-

tiality—one source that says when you came to

Judge Hunt there was evidence of him being cor-

rupt in the past. 1] want you to name it right now.”

A “Not that Judge Hunt by name.”

3 at the bench conference discussing the cross-examination of

Redden recounted supra, n. 2, the following colloquy ensued:

Mr. McCullough: “What I think the agent is trying

to avoid saying is when he checked with agent Peters,

[footnote continued]

10a

Thus, the testimony of Peters and Drdak now claimed to

be objectionable was only introduced after persistent

efforts of the defense to call into question the govern-

ment’s basis for investigating Hunt at all. When the de-

fense objected to Drdak’s testimony, the district court

admitted it on the ground that it went to “probable

cause, state of mind.”* Likewise. the court overruled a

who is the agent that covered the county, there were

A.T.F. files of reports that Judge Hunt had shielded

people from stolen property, like in past cases that were

in the file at the time he went back to that were from

years past, and I have those documents.”

Mr. Robinson: “I’m giving him every chance to say

what he saw.”

Mr. McCullough: “Do you want him to put that on

the record? I think he’s trying to avoid saying that.”

Mr. Robinson: “Fine. My point is that he would-

n’t answer under oath before and so far today that he

never had any knowledge of him taking any kind of pay-

off prior to this case.”

Mr. McCullough: “I think the question has gone a

little far afield than just payoffs.”

The Court: “The next question is, if he puts this in

now, are you prepared to run with that?”

Mr. Robinson: “If he goes with it. Frankly, being

candid about it, at some point they may try to argue any

criminal activity is predisposition. ['m not saying that I

agree with that, but I’m prepared to take any kind of

punches. I know there’s allegations, but what’s impor-

tant is what did this agent know when they indicated to

him specifically that there was some indication of pre-

disposition. It doesn’t matter if they go out and find

something after the fact.”

The Court: “Well, he’s telling you what other peo-

ple have told him; that’s basically what he has said.”

*at the time of the district court’s ruling on Drdak’s testi-

mony. counsel engaged in a discussion on the meaning of predispo-

sition. which the defendant relies upon in contending that Drdak’s

testimony was admitted to show his predisposition to commit the

acts charged. Suffice it to say that the arguments of counsel can-

not be equated to the rulings of the court, the meaning of which

are made abundantly clear by the subsequent ruling on the objec-

tion to Peters.

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defense objection to Peters’ testimony regarding what he

learned from Edwards because “it’s a question of what

information they had,” and “‘fw] hether it’s true or not is

another matter.”’*

On appeal the defendant disingenuously contends that

because good faith on the part of the government is not

relevant to an entrapment defense, see United States 1.

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

denied 402 U.S. 950 (1971), which focuses rather on a

defendant’s predisposition, see United States v. Russell,

411 U.S. 423, 433 (1973), the district court could not

properly have admitted the agents’ tesumony on the

ground that it went to what they knew in commencing

the investigation. It is evident that the defense simultane-

ously sought to develop both its entrapment and due pro-

cess claims. which are analytically distinct though relying

to some extent on the same facts. Though only the

entrapment claim was for the jury to resolve. the govern-

ment was nevertheless entitled to develop its rebuttal to

the due process theory as well, once the defense called

the government’s conduct into question. Having “‘opened

the door” the defendant may not be heard to complain

of testimony which proved adverse to his position that

the government had no reason to investigate him.* As

the rulings of the district court demonstrate, this evi-

dence was not introduced to “‘prove the truth of the mat-

ter asserted,” Fed. R. Evid. 801(c), but merely to refute

criticism of the government’s decision to launch its under-

*It does not appear that the defense ever made a specific ob-

jection to introduction of the allegations about Hunt that Peters

received from law enforcement officials in Columbus County.

*See United States v. Rangel, 534 F.2d 147, 149 (9th Cir.),

cert. denied, 429 U.S. 854 (1976) (rejecting claim that hearsay

improperly admitted to prove predisposition where matter opened

up by defense counsel).

l2a

cover investigation of Hunt. and therefore did not fall

within the definition of hearsay.’ In Webster. the Fifth

Circuit recognized that the government could, in special

circumstances, prove what its agents had been told about

a defendant ‘‘as evidence of good faith, reasonableness or

proper motive.” in order to rebut contrary assertions by a

defendant. 649 F.2d at 347-48, 351. This case presents

the paradigm situation for application of such a rule.

Had the question of the government’s basis for the inves-

tigation never been raised by the defense, there would, of

course, have been no ground for admission of Peters’ and

Drdak’s testimony. We hold, however, that where a

defendant elects to challenge the government’s conduct

of an investigation. the government may introduce rebut-

tal evidence, even though it would amount to hearsay if it

were intended to prove the truth of matters asserted. for

the limited purpose of demonstrating that the investiga-

tion was reasonable and free of improper motive.* Thus

it follows that the district court did not err in admitting

the challenged testimony.

"See United States v. Scott, 678 F.2d 606, 612 (Sth Cir.),

cert. denied, 459 U.S. 972 (1982) (support existed for admission

of alleged radio communications of conspirators because not intro-

duced to prove truth of matter asserted but to show why Coast

Guard undertook investigation).

® Since hearsay evidence. as we have indicated, may not be

used to prove predisposition, the defendant would have been en-

titled to a limiting instruction, providing that the testimony of the

agents was not to be considered for the truth of the matters as-

serted, and did not bear in any way on the defendant’s entrapment

claim. Alternatively. once made aware of the nature of the evi-

dence that the government might introduce, the defense might

have agreed to a stipulation with the government, thereby keeping

any potentially preiudicial information from the jury. The record

does not show that either course was considered by the defense.

13a

III.

The defendant next contends that the evidence of his

predisposition to engage in the offenses charged was in-

sufficient to sustain a conviction as a matter of law. This

claim, we find. cannot be sustained.

Once a defendant has presented some evidence of in-

ducement by government agents, see United States v. Perl,

584 F.2d 1316, 1321 (4th Cir. 1978), cert. denied , 439

U.S. 1130 (1979): DeVore, 423 F.2d 1069, 1071, the

burden rests on the government to overcome an entrap-

ment defense. The Supreme Court has offered various

formulations of the nature of entrapment, stating that

such a claim may only prevail where “‘the Government’s

deception actually implants the criminal design in the

mind of the defendant.”’ Russell, 411 U.S. at 436, see

also DeVore, 423 F.2d at 1071, or that the criminal con-

duct must have been “ ‘the product of the creative activ-

ity’ of law enforcement officials.”” Sherman vy, United

States, 356 U.S. 369, 373 (1958), quoting Sorrells, 287

U.S. 435, 451 (emphasis supplied in Sherman). In any

event, it is clear since Russell that the essential element of

the entrapment defense is the defendant’s lack of predis-

position to commit the crime charged. 411 U.S. at 433.

Predisposition is necessarily a nebulous concept,’ and

has generally been held to be a question for the jury.

*The standard jury instruction on entrapment, as given here,

asks whether the defendant was “ready and willing” to commit

crimes such as charged whenever the opportunity was afforded.

1 Devitt & Blackmar, Federal Jury Practice and Instructions

§ 13.09 at 364 (3d ed. 1977). This is hardly more illuminating

than the general notion of predisposition itself, given that one’s

willingness to commit a crime would necessarily depend on the

leve] of inducement offered and the circumstances created by gov- _

ernment agents. See L. Seidman, The Supreme Court, Entrapment,

[footnote continued }

14a

unless the evidence is plainly insufficient as a matter of

law. See, e.g. United States v. Jannotti. 673 F.2d 578.

597 (3rd Cir.), cert. denied, 457 U.S. 1106 (1982). and

cases cited therein. On review we may Only overtum the

jury’s determination if, viewing the evidence in the light

most favorable to the prosecution, no rational trier of

fact could have found predisposition to exist beyond a

reasonable doubt. See Jackson v. Virginia. 443 U.S. 307.

319 (1979): Jannotti, 673 F.2d at 598.

Predisposition. as recognized in the recent series of

ABSCAM decisions. “refers to the state of mind of a de-

fendant before government agents make any suggestion

that he shall commit a crime,”’ but does not require “‘spe-

cific prior contemplation of criminal conduct.” United

States v. Williams. 705 F.2d 603, 618 (2nd Cir.). cert.

denied. 104 S.Ct. 524, 525 (1983). “It is sufficient if the

defendant is of a frame of mind such that once his atten-

tion is called to the criminal opportunity, his decision to

commit the crime is the product of his own preference

and not the product of government persuasion.”” Jd. Pre-

disposition may be found from a defendant’s ready re-

sponse to the inducement offered. United States rv.

Myers, 692 F.2d &23, 836 (2d Cir. 1982), cert. denied,

103 S.Ct. 2437, 2438 (1983). As the Third Circuit ob-

and Our Criminal Justice Dilemma, 1981 Supreme Court Review

111, 118-19. “Persistent offers, exorbitant amounts of money,

and appeals to emotion or civic duty may seduce a person of ordi-

nary firmness into a compromising position.” B. Gershman, Ab-

scam, the Judiciary and the Ethics of Entrapment, 91 Yale L.J.

1565, 1584 (1982). It is simply naive to suppose that public offi-

cials, or other defendants, can be neatly divided between the pure

of heart and those with a “‘criminal” outiook. As it would appear,

however, to be impossible to formulate a more coherent definition

of predisposition consistent with the Supreme Court’s decisions,

the whole matter is best left to the discretion of juries, constrained

only perhaps in the use of unreliable character evidence, as we have

done in Part II, supra.

15a

served in Jannofti. it is extremely difficult to show pre-

disposition of a public official to accept bribes through

direct evidence of prior involvement in similar conduct.

and in such circumstances it is necessary to consider the

situation surrounding the illegal conduct: indeed, “the

very acceptance of a bribe by a public official may be evi-

dence of a predisposition to do so,”’ 673 F.2d at 604. at

3 least where, as here, the jury is provided with such strong

evidence of the transactions as recordings and videotapes.

from which the defendant’s willingness or reluctance may

be assessed. Where. as in this case, the defendant is in-

a lial at Ni RD ota re’ ee

volved in a continuing relationship with the government

agents. his state of mind may even be assessed by later

events in the relationship bearing on his attitude prior to

the initial opportunity for illegal conduct. We emphasize

that the jury is not required to infer predisposition for

any such evidence, but is entitled to determine what

weight if any is to be accorded to relevant evidence

before it.

It may readily be conceded that the evidence of predis-

position is not overwhelming here, while finding nonethe-

less that it is adequate to sustain the defendant's convic-

tions. Turning to the facts before us, it appears that

Hunt was willing to meet Redden and his associates in a

motel room on November 20, 1980 at Carroll’s behest.

Hunt learned at that meeting that the Roxanne Club

would be used for illegal gambling, and yet was willing to

remain at the meeting and even provide advice on the

attitudes of local authorities to the proposed criminal

activity. The jury, presented with conflicting explana-

tions for the absence of any payoff on November 20,

could reasonably assume that the parties were ‘“‘feel[ing]

each other out” as explained by Redden, rather than that

the judge never contemplated any corruption. More sig-

nificantly, once Carroll made Redden’s payoff proposal

16a

explicit soon after the first meeting, no significant pres-

sure or cajoling was required to secure the judge’s assent.

Thus, prior to the crucial December 3 meeting when the

criminal opportunity was first presented, substantial cir-

cumstantial evidence of the judge’s predisposition had

already accumulated. The preliminary discussion between

Redden and Hunt on December 3 could have left no fur-

ther doubt in the judge’s mind as to the illegality of the

proposed conduct, and there was nothing to prevent him

from breaking off relations at that point, yet he chose to

proceed along the path to corruption. In accepting the

proffered money, the defendant himself advanced the

facile excuse of a “campaign contribution.” Further-

more. Hunt never demonstrated any desire to withdraw

from the protection scheme until his name had been pub-

licly linked to criminal activities several months later;

more visible qualms could have been expected from a

public servant of reasonable rectitude who had been led

astray.'"° The excuse offered by the defense that Hunt

feared to withdraw cannot withstand analysis, in light of

Redden’s caution in approaching the judge. Not until

Drdak entered the investigation, after the judge had al-

ready accepted several payoffs, did the defendant learn

that the individuals with whom he dealt were engaged in

a more extensive range of criminal activity than illegai

gambling. Whatever the unwitting middleman Carroll

may have believed or feared about the agents is of little

relevance, in the absence of any evidence that the govern-

1°Only one piece of evidence, which the jury was entitled to

disbelieve, even suggested pangs of conscience. A ciose friend of

the judge, Thurston Watts, claimed that immediately after the De-

cember 3 meeting, the judge admitted to him that he had accepted

money, but would have to return it. There is no evidence whatso-

ever that the defendant ever actually tried to return any of the

money, and in December 1980, after receiving his first payoff, he

actually inquired after the remaining $500 due.

17a

ment agents either threatened the judge themselves or

told Carroll to do so."

Our review of the recent series of ABSCAM decisions,

see United States vy. Kell}. 707 F.2d 1460 (D.C. Cir.),

cert. denied, 104 S.Ct. 264 (1983): Williams. 705 F.2d

603: Myers, 692 F.2d 823: Jannotti. 673 F.2d 578. re-

veals certain significant parailels in the conduct of the

public officials involved. including preliminary contacts

through presumably ‘“‘safe’”’ middlemen and initial caution

as the parties felt one another out. before any outright

opportunity for corruption arose. all circumstances pres-

ent here as well. In at least one respect. the defendant’s

behavior here is even less excusable than that of the AB-

SCAM defendants: those individuals typically held legis-

lative posts, which necessarily lead to contacts with those

seeking political favors. A judge, whether elected or ap-

pointed, must be more circumspect in his dealings with

the public, in light of the standards of judicial ethics and

the responsibilities of his office, which require him to be

a neutral arbiter above partisan concerns. We hold that

the evidence against the defendant was sufficient for the

jury to find the requisite predisposition and to reject the

entrapment defense.?”

1] According to the judge’s friend Thurston Watts, the defend-

ant did not return the money accepted on December 3 because

Carroll told him that he was dealing with “organized crime figures”

who would not take the money back. Watts did not claim ever to

hear Carroll make such a statement, but supposedly received his

information secondhand from the defendant. Carroll denied ever

making such a statement to the judge after the December 3 meet-

12 it is equally clear, and we so hold, that the evidence of Hunt’s

predisposition to facilitate an interstate bet was sufficient to sus-

tain the § 1952(a) conviction.

18a

IV.

The appellant also urges us to find that the govern-

ment’s conduct of the investigation was so outrageous as

to violate due process, a claim distinct from the unsuc-

cessful entrapment defense. While the Supreme Court

has suggested that such a defense might be proper in cer-

tain circumstances. see Hampton v. United States, 425

U.S. 484, 493 (Powell. J.. concurring in judgment), 499

(Brennan, J., dissenting) (1976): Russell. 411 U.S. at 431-

32: but see Hampton. 425 U.S. at 489-90 (opinion of

Rehnquist, J.), it has yet to allow a due process attack on

a government investigation to prevail, and only two cir-

cuits have set aside convictions on this basis. United

States v. Twigg, 588 F.2d 373 (3d Cir. 1978): Greene r.

United States. 454 F.2d 783 (9th Cir. 1971). Assuming

that in some circumstances a due process defense might

have merit notwithstanding the predisposition of the

defendant to commit the offenses charged, it is apparent

here that the conduct of the FBI agents was hardly so

‘“‘outrageous,”” Russell, 411 U.S. at 423, as to preclude a

conviction.

The defendant launches a two-pronged assault on the

government’s investigation. He first faults the persistence

of the government in pursuing him, and next alleges that

the hints of violence occasionally dropped by FBI agents

during the investigation constituted due process viola-

tions. As to the former claim, we can hardly criticize the

government for reasonably pursuing available leads con-

cerning judicial corruption, although some proved barren

and others did not immediately bear fruit. The reports

received by the FBI created a reasonable basis for the

investigation of Hunt: we are not faced with an indiscrim-

inate government fishing expedition. Nor are we pre-

sented with a situation where a defendant firmly refused

19a

a proposed payoff. and thereafter was incessantly hec-

tored by government agents to reverse his decision: such a

Situation, indeed, might be equally well resolved on

entrapment grounds as due process. Hunt's failure to

jump to the bait on November 20. and his seeming lack

of interest in money in his preliminary discussions with

Carroll. could reasonably be construed as mere negotiat-

ing tactics, and do not render the government’s subse-

quent conduct ‘outrageous.’ The latter prong of the

defendant’s due process claim is similarly flawed, for. as

noted in part III, supra, there is no evidence whatever

that the government agents ever threatened the judge

themselves or pressured anyone else to doso. Hunt may

well have believed that he was dealing with the criminal

underworld, but this in itself did not render the investi-

gation “‘outrageous.”’ As the Ninth Circuit observed in

rejecting a similar due process defense:

We have long since recognized that the govern-

ment may employ undercover tactics to infiltrate

criminal ranks and may rely on paid informants in

order to locate and arrest criminals. . . . This being

so, the informants and undercover agents must be

permitted, within reason, to assume identities that

will be convincing to the criminal elements they

have to deal with.

United States vy. McQuin, 612 F.2d 1193, 1195-96 (9th

Cir.). cert. denied. 445 U.S. 954. 955 (1980). The FBI

agents in this case had to make their undercover roles

convincing to their unwitting middleman, Carroll, a dis-

reputable figure himself, and thus chose to present them-

selves as tough characters, dangerous if crossed.'* In their

13 at one point in their relationship, Carroll suggested to Red-

den the possibility of burning the Roxanne Club for the insurance,

[footnote continued]

20a

dealings with the judge both Redden and Drdak behaved

with much more restraint. never threatening any violence

in his presence. We can find nothing sufficiently “out-

rageous” in the agents’ performance of their criminal

roles to warrant reversal on due process grounds. **

_?

Finally, the defendant contends that he cannot be

prosecuted under the Racketeer Influenced and Corrupt

Organizations (RICO) statute, 18 U.S.C. §1961 er seq..

because he is not a member of “organized crime.” and

was the victim of a crime manufactured by the FBI. Al-

though the Supreme Court has recognized that “‘the pn-

mary purpose of RICO is to cope with the [organized

crime] infiltration of legitimate businesses.” United States

v. Turkette. 452 U.S. 576, 591 (1981), it has declined to

limit the applicabilitv of RICO to its core purpose alone,

and lower courts have expressly held that the RICO sta-

tute does not require proof that the defendant or his

enterprise is connected to organized crime. See, e.g.

United States vy. Aleman, 609 F.2d 298, 303 (7th Cir.

_ 1979), cert. denied. 445 U.S. 946 (1980). We have previ-

ously upheld convictions of public office holders under

RICO where there was no evidence of any “organized

crime” connection, see, e.g. United States vy. Long. 651

F.2d 239 (4th Cir.). cert. denied, 454 U.S. 896 (1981),

and we will not graft an ambiguous “‘organized crime”

and Redden replied that his organization could arrange that. Of

course, the arson was never carried out. Redden also told Carroll,

after Thurston Watts had won $300 in one of their illegal poker

games, that Watts could end up with ‘“‘a fucked up jaw.”

1’ See generally United States v. Gamble, No. 82-1151, slip op.

(10th Cir. June 20, 1984) for a graphic example of how far govern-

ment investigators have been allowed to proceed in an undercover

“sting’’ without violating the constraints of due process.

foipe Te ee

2la

precondition onto the RICO statute now. That a crime

may have been “manufactured” by the government is

properly dealt with under the entrapment doctrine. and

not by a challenge to the substantive statute. We find that

the defendant’s RICO conviction must be sustained. '*

V1.

Corruption in public office. as manifested in the AB-

scam cases and here as well. must often be exposed

through unconventional investigative techniques.’® and

the government treads a perilous course “between the

trap for the unwary innocent and the trap for the unwary

criminal,”” Sherman, 356 U.S. at 372. between affording

anticipatory opportunity to the willing wrongdoer and

fabricating criminality from inherent human frailties.

Public officials of reasonable honesty might often be led

astray by sufficient and repeated inducements, or by

plays upon character weaknesses that might otherwise

have never come to light. The conduct displayed by the

defendant, however, transgresses the permissible bounds

of simple weakness or naivete, and is particularly extra-

ordinary for a holder of judicial office. who of all public

officials must be held to the highest standard of incor-

ruptibility. It is unnecessary for us to decide here how

15 The remaining RICO issues raised by the defendant, whether

a judgeship can constitute an “‘enterprise”’ for RICO purposes, and

whether multiple bribes may be treated as distinct felonies, have

been dispositively resolved by our decisions in United States r.

Altomare, 625 F.2d 5, 7 (4th Cir. 1980). and United States y.

Karas, 624 F.2d 500, 504 (4th Cir. 1980), cert. denied, 449 U.S.

1078 (1981).

1©Notwithstanding the increasingly publicized use of the de-

fense, it has been said that the “‘[e]ntrapment doctrine, standing

alone, is no more than a curiosity, of more use to legal academics

seeking tenure than to criminals seeking acquittals.” L. Seidman,

supra, n. 9, at 152.

22a

far the government may cast its nets in search of sus-

pected corruption, for little indeed was required to expose

Judge Hunt. We are resolved that the defendant’s convic-

tion must be affirmed.

AFFIRMED.

SPROUSE. Circuit Judge, dissenting:

I respectfully dissent. The analysis adopted by the ma-

jority concedes that hearsay evidence is incompetent to

prove directly the predisposition of the defendant, but

then effectively permits such use under the guise of edmit-

ting the hearsay as direct proof of governmental good

faith, motive, and reasonableness. Moreover, | cannot

accept the broad rule announced by the majority which

apparently permits the government to introduce hearsay

evidence on the good faith, motive. and reasonableness

of its investigation whenever the defendant has alleged a

violation of due process. The majority relies on United

States v. Webster, 649 F.2d 346 (5th Cir. 1981) (en

banc), for support for its holding. but never identifies in

this case the “special circumstances” creating a need for

the hearsay evidence that outweighs its great prejudicial

effect that the Webster court would require before admit-

timg hearsay in an entrapment case. Because I believe

that such special circumstances are absent here. I would

reverse Hunt’s convictions and remand the case for a new

trial.

The basic rationale of the entrapment defense has not

changed since it was repeated by Chief Justice Hughes i in

Sorrells v. United States:

23a

The first duties of the officers of the law are to

prevent, not to punish crime. It is not their duty

to incite to and create crime for the sole purpose

of prosecuting and punishing it... . [I]t is uncon-

scionable, contrary to public policy, and to the

established law of the land to punish a man for

the commission of an offense of the like of which

he had never been guilty, either in thought or in

deed, and evidently never would have been guilty

of if the officers of the law had not inspired, in-

cited, persuaded, and lured him to attempt to

commit it.

287 U.S. 435, 444-45 (1932) (quoting Burts vr. United

States, 273 Fed. 35, 38 (8th Cir. 1921) (Sanbom, J.)).

When the defense is raised, “predisposition” of the de-

fendant to commit the crime is, of course, the key ele-

ment of the case. United States v. Russell. 411 U.S. 423.

433 (1973): Sorrells, 287 U.S. at 451. The defendant

must initially present evidence “ * “that the Government’s

conduct created a substantial risk that the offense would

be committed by a person other than one ready to com-

mit it.” ’” United States v. Webster. 649 F.2d 346, 349

(Sth Cir. 1981) (en banc) (quoting United States v. Dick-

ens, 524 F.2d 441, 444 (Sth Cir. 1975) (quoting, in tum,

United States v. Mosley, 496 F.2d 1012, 1014 (Sth Cir.

1974)), United States v. Perl, 584 F.2d 1316, 1321 (4th

Cir. 1978), cert. denied, 439 U.S. 1130 (1979). After the

defendant meets this burden, the government is required

to prove beyond a reasonable doubt that the defendant

was predisposed to commit the crime charged. Webster,

649 F.2d at 349: Dickens, 524 F.2d at 444.

Hunt’s trial established conclusively that he took the

bribes, and that government agents induced him to do so.

The principal jury focus then was whether Hunt was pre-

disposed to accept bribes. Hunt demonstrably is not a

24a

good citizen and certainly lacks the character required to

hold even the minor judicial office to which he was

elected. This, however. does not weigh on the principal

issue. Hunt claims the government made him a criminal

by manipulating his weak character. The government

claims he was ready to commit the crimes and merely

awaited the opportunity. The jury resolved the issue

against Hunt and defeated his entrapment defense. but

the path to its decision was cluttered with gross hearsay

evidence. .

The principal issue on appeal. therefore. is whether the

district court improperly admitted hearsay evidence on

the issue of Hunt’s predisposition to accept a bribe and

thereby tainted the jury’s decision. We look to the Fed-

eral Rules of Evidence governing the admission of hearsay

evidence and to the Sixth Amendment’s confrontation

clause. Hearsay evidence is prohibited in the proof of

predisposition unless it satisfies one of the exceptions to

the general prohibition contained in the Federal Rules of

Evidence. Webster, 649 F.2d at 349-50: United Srates ¥.

McClain, 531 F.2d 431, 435-37 (9th Cir.), cert. denied,

429 U.S. 835 (1976): United States v. Catanzaro. 407

F.2d 998, 1001 (3d Cir. 1969). The sixth amendment’s

proscriptions can be even stricter. California r. Green,

399 U.S. 149, 155-56 (1970) (satisfying recognized hear-

say exception does not automatically satisfy Confronta-

tion Clause).

The familiar rules governing the admission of hearsay

evidence must be applied carefully in an entrapment case

because of their heightened susceptibility to abuse. The

nature of the entrapment defense is such that by the time

the predisposition issue is reached, the defendant has

shown that government agents created the opportunity

for the defendant’s criminal conduct. At this point the

trial process determines whether the government has

25a

crossed into the realm of “‘overzealous law enforcement,”

Sherman v. United States. 356 U.S. 369, 381 (1958)

(Frankfurter, J., concurring). by inducing into the

scheme a person not otherwise disposed to commit the

crime. In the course of this process. the trial court must

make certain that the evidence presented is not a product

of the same possibly excessive zeal. Good police investi-

gation collects tips and other information of all degrees

of reliability and from all shades of informants. The reli-

ability of hearsay evidence that reaches police records via

a chain of informants whose unavailability to testify has

not been shown must be especially suspect and its use in

an entrapment case subject to close examination.

At trial, the government adduced considerable direct

evidence of Hunt’s involvement in the bribe scheme—he

touk the payments, expressed interest in helping with the

illegal enterprise, and never protested—and from this the

jury was entitled to inier predisposition. See United

States v. Jannotti, 673 F.2d 578, 604 (3rd Cir.), cert.

denied. 457 U.S. 1106 (1982). Likewise, there was de-

fense evidence negating predisposition—Hunt had a repu-

tation for honesty, had never accepted a bribe before,

initially resisted the bribes. and even tried to return the

first payment; and the FBI] pressured an intermediary to

have Hunt accept the bribes. The trial, filtered of im-

proper hearsay, presented a sharply drawn factual con-

flict for the jury to resolve. Our task on appeal, of course,

is not to weigh the evidence but to judge the process by

which the jury weighed it.’ In my view, it was not pos

sible for the jury to resolve the issue objectively because

evidence on the question of Hunt’s predisposition was

Some indication of the jury’s difficulty with this issue was that

after two to three hours’ deliberation the jury requested the first

instruction on the meaning of “predisposition.” 3 Jt. App. at

1196, 1233-34.

26a

irretrievably mixed with the most dubious sort of double

and triple hearsay concerning his alleged corruptibility.?

The trial court permitted the jury to consider raw

investigatory data that may well have been vital to initial

police work but just as well could have been corrosive of

the ultimate judicial truth-seeking process. The hearsay

testimony of the three FBI agents overshadowed all of

the evidence. Agent Drdak initiated the hearsay evidence,

testifying on direct examination over defendant’s objec-

tion that he heard from Agent.Peters. who heard from

local law enforcement officers, that Judge Hunt “‘had

associated with criminal element there in Whiteville,”

‘“‘was involved from a financial standpoint in narcotics,”

and “‘had built a fairly good gun collection”’ from confis-

cated firearms. The hearsay continued during the direct

examination of Agent Peters as he related the informa-

tion he gave to Agents Drdak and Redden prior to the

undercover operation. He testified about hearing from a

sheriff who gave him a transcript of an interview with a

woman who “was involved with” a cousin of Hunt who

claimed Hunt had “taken care of” firearms charges

against the cousin. He repeated the criminal association

and confiscated weapons stories testified to by Drdak,

citing as his source unnamed Columbus County and

Whiteville law officers. Finally, Peters testified that a

prison inmate named Edwards had alleged that Hunt was

? Herein, I think, lies a failure on the part of the government to

view its investigative role and prosecutorial role in the proper per-

spective. Good criminal investigatory techniques from time im-

memorial rely on information not only from good citizens, but

aiso from informants from the most broken walks of life. From

this sometimes ingiorious ragbag, however, the dedicated police

officer develops evidence that is worthy of consideration by judge

and jury in the prosecutorial phase. Failing to properly develop

respectable evidence, the police agency may not dump a ragbag of

investigative leads on a jury.

27a

involved in drug transactions and had purchased an auto-

matic weapon. Agent Redden repeated some of these

statements in his testimony. None of the informants in

the chain of transmitting this information testified and

the government did not show their unavailability.

The government concedes, as well it should, that hear-

say evidence may not be used to prove predisposition

unless it is admitted under a constitutional exception to

the general prohibition against its use contained in the

Federal Rules of Evidence. United States v. Webster, 649

F.2d 346. 347 & n.1 (Sth Cir. 1981) (en banc); United

States v. McClain, 531 F.2d 431, 435-37 (9th Cir.), cert.

denied, 429 U.S. 835 (1976): United States v. Ambrose,

483 F.2d 742, 750 (6th Cir. 1973): United States y.

Catanzaro, 407 F.2d 998, 1001 (3d Cir. 1969); Whiting v.

United States, 296 F.2d 512, 518-19 (1st Cir. 1961). It

argues, however, and the majority agrees that the hearsay

introduced by the testimony of the three FBI agents was

admissible because it was not offered to prove the truth

of the statements asserted but merely to prove that the

statements had been made and that the FBI agents were

aware of them when the undercover operation was ex-

tended to induce Hunt to accept bribes. The majority

holds that ‘“‘where a defendant elects to challenge the gov-

emment’s conduct of an investigation, the government

may introduce rebuttal evidence, even though it would

amount to hearsay if it were introduced to prove the

truth of matters asserted, for the limited purpose of dem-

onstrating that the investigation was reasonable and free

of improper motive.”’

The majority’s holding incorporates two propositions.

First, the government properly introduced this evidence

for the jury’s consideration because defense counsel

“opened up” this line of inquiry by cross-examining

agent Redden as to the basis of the investigation. Sec-

28a

ond, in the majority view, the evidence was relevant and

admissible because Hunt claimed that the government’s

investigation was not instituted in good faith and there-

fore violated his due process rights.

I cannot agree that the defense ‘‘opened up” the evi-

dence of FBI good faith on cross-examination so as to

allow the agents on direct examination to relate all other

completely unreliable hearsay information in their files.

The hearsay first came into evidence during the govern-

ment’s direct examination of agent Drdak, over objec-

tions to its hearsay character. Drdak was asked:

[Government counsel]: What did you learn from

agent Peters about the judge?

[Defense counsel: Objection (hearsay)]

[The Court]: [T]his goes to... . state of mind.

[Defense counsel]: [P]redisposition deals with

prior to the first act, not after the first act.

[Government counsel]: Predisposition, as I under-

stand it, your honor, is synonymous with all the

events that transpired between the individuals.

[The Court]: I’m going to overrule the objection.

Weight for the jury.

2 Jt. App. at 482-83. Drdak then related much of the

hearsay discussed, supra. It is true that on one occasion

On cross-examination defense counsel asked agent Red-

den whether he was aware of any evidence of corruption

on Hunt’s part prior to the FBI investigation and his

answer was “no.” 1 Jt. App. at 228. This, however, was

legitimate cross-examination on the issue of predisposi-

tion.

29a

Furthermore, the Supreme Court in Russell. by focus-

ing solely on the issue of defendant’s predisposition. 411

U.S. at 433-35. makes it clear that the ‘‘agent’s good faith,

motive or reasonableness is of only secondary significance,

if relevant at all”. United States v. Webster. 649 F.2d

346, 351 (Sth Cir. (1981). The nature of police activity

may be relevant to a due process attack. United States yv.

Scott, 678 F.2d 606, 612 (5th Cir.), cert. denied, 103

S.Ct. 304 (1982): Webster, 649 F.2d at 351 (to rebut

defendant's assertions of.bad faith or improper motive),

but on the issue of entrapment its probative value is ques-

tionable and its “prejudicial effect .. . is likely to be great

because the jury might consider it as evidence of predis-

position or of bad character.” Webster. 649 F.2d at 351:

see United States v. Catanzaro, 407 F.2d 998. 1001 (3d

Cir. 1969). This use of hearsay also denies the defendant

an opportunity to establish by cross examination of

police sources information that might support an asserted

lack of predisposition to commit the crime instigated by

the police.

Likewise. I cannot agree that Hunt opened the door to

a flood of hearsay by raising a due process claim. Hunt’s

motion for dismissal on the grounds that the FBI’s inves-

tigative conduct amounted to a denial of due process was

a pretrial motion. He never raised that issue during trial

and even had he done so, it would have been egregious

procedural error to submit that legal issue to the jury. In

deciding the merits of the claim, there were any number

of ways for the trial court to develop relevant facts with-

out tainting the jury’s entrapment deliberation. The

effect of the majority’s opinion is to require Hunt to

choose between an entrapment defense and a constitu-

tional due process ciaim.

It is possible that the defense in some exceptional case

might “open up”’ an issue of government ‘“‘good faith”

30a

sO as to permit the introduction of some hearsay evidence

in rebuttal. I feel. however, that this is not such a case

and above all that we should not establish the broad rule

announced by the majority.

—