Opposition Brief — Hunt v. United States

OCTOBER TERM, 1984

J. WILTON HUNT, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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cerk

In the Supreme Court of the United States

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QUESTION PRESENTED

Whether when a defendant attempts to show that

the government did not initiate its investigation of

the defendant in good faith, the government may re-

spond by introducing evidence of the allegations that

prompted the investigation.

(1)

TABLE OF CONTENTS

IE REE aA ENA Sat i a SN RRS RR

RE IR RE Ue A Aa oe

TABLE OF AUTHORITIES

Cases:

United States v. Dyman, 739 F.2d 762, cert. denied,

No. 84-6476 (Jan. 21, 1986) ..................................

United States v. Myers, 692 F.2d 823, cert. denied,

SESE SR A AR a 7

United States v. Russell, 411 U.S. 423 0000000.

United States v. Scott, 678 F.2d 606, cert. denied,

gs EE oe

United States v. Webster, 649 F.2d 346 .....00000 wu.

United States v. Williams, 705 F.2d 603, cert. de-

nied, No. 83-256 (Dec. 5, 1983) ....................00.......

United States v. Young, No. 83-469 (Feb. 20,

TR siiiccenteteysercosoreecsevtoceanntecstosentnesoees a See irae

Statutes and rules:

FEET Fc ean oe I

i sammishniouenieeiodants

Fed. R. Evid.:

i

Ee I Ad Beh A Sea RN aI

(111)

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1481

J. WILTON HUNT, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1la-

30a) is reported at 749 F.2d 1078.

JURISDICTION

The judgment of the court of appeals was entered

on November 28, 1984. A petition for rehearing was

denied on February 4, 1985. The petition for a writ

of certiorari was filed on Maren 6, 1985. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

a M

2

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Eastern District of North Caro-

lina, petitioner was convicted on one count of con-

spiracy to engage in racketeering activities, in viola-

tion of 18 U.S.C. 1962(d); and one count of use of

an interstate facility in aid of racketeering, in viola-

tion of 18 U.S.C. 1952(a). Petitioner was sentenced

to 14 years in prison on the conspiracy count and a

concurrent two-year term on the substantive count.

The court of appeals affirmed (Pet. App. 1a-30a).

1. The evidence at trial, as summarized in the

opinion of the court of appeals, showed that between

1980 and mid-1982 the Federal Bureau of Investiga-

tion conducted an undercover investigation into cor-

ruption of public officials in Columbus County, North

Carolina. During this period petitioner was a judge

on the North Carolina District Court for the 13th

Judicial District, which included Columbus County.

He presided over misdemeanor cases and traffic of-

fenses. Pet. App. 2a.

In August 1980, the FBI received a report from

Joseph Moody, who was scheduled to appear before

petitioner on an assault charge, that petitioner was

willing tou accept a bribe. The FBI gave money to

Moody to deliver to a middleman who was to meet

with petitioner. The meeting with petitioner never

took place and the middleman apparently pocketed

the bribe money. Pet. App. 2a-3a. Two months later,

Moody informed the FBI that another individual,

James Carroll, “claimed that he could ‘deliver’ [peti-

tioner]” (id. at 3a). An FBI undercover agent

posing ‘as a member of a criminal syndicate met with

Carroll and expressed interest in purchasing a club

operated by Carroll in Columbia County to use as a

3

front for various illegal activities including drug sales

and prostitution. The court of appeals stated that

Carroll told the agent that “he was acquainted with

[petitioner] and that [petitioner] would be available

for protection payments.” Ibid.

Carroll arranged for the undercover agents to meet

with petitioner on November 20, 1980." At that meet-

ing the agents discussed their plans for the club,

which included an illegal poker game. Petitioner ad-

vised the agents that if the game were raided it was

unlikely that anyone would receive a jail sentence for

a first offense. The agents made no explicit offer of

money at this meeting, but Carroll subsequently made

clear to petitioner that the agents were “interested in -

paying $1500 a month for [petitioner’s] protection.

[Petitioner] replied, ‘That sounds good.’” Pet. App.

4a.

On December 3, 1980, a meeting took place between

an undercover agent, Carroll, and petitioner at which

the agent explained the need for “protection” for the

gambling enterprise. The agent gave Carroll an en-

velope containing $1,000 in cash and Carroll gave the

envelope to petitioner. Petitioner “said that he had

never taken money before and found it difficult, but

then proposed that the money he considered a ‘cam-

paign contribution.’ ” Pet. App. 4a. Petitioner sub-

sequently requested the remaining $500, which was

delivered to him by Carroll (ibid.).

Over the next nine months, petitioner received five

payments totaling $7,500. Petitioner agreed to set

low bonds for any of the undercover agent’s associates

arrested on gambling or drug charges, reduced the

penalties on traffic citations issued to two of the

1The agents’ meetings with Carroll and petitioner were

secretly recorded.

4.

agent’s undercover associates, assisted the agent in

obtaining a license for a gold and silver business that

was to be used as a front for drug smuggling, agreed

to talk to a local sheriff and “ ‘put his mind at ease’ ”

about the agent’s drug smuggling plans, and gave the

agent the telephone number of a local bookmaker. The

undercover operation was terminated in November

1981 in response to petitioner’s concern about rumors

that he had been linked with a drug ecperation. Pet.

App. 5a-6a.

2. Petitioner’s convictions were affirmed by a di-

vided court of appeals (Pet. App. la-22a). The ma-

jority rejected petitioner’s claim that the district

court improperly admitted evidence of the allegations

of unlawful conduct involving petitioner that were

known to the FBI at the start of its investigation.

The court noted that petitioner had argued tnat the

government “had ‘no evidence of [petitioner’s] illegal

conduct other than that initiated by its own opera-

tives’”” and had attempted to establish this fact dur-

ing the cross-examination of an FBI undercover agent

at trial (7d, at 9a). The court of appeals con-

cluded that “the testimony * * * claimed to be objec-

tionable was only introduced after persistent efforts

of the defense to call into question the government’s

basis for investigating [petitioner] at all” (id. at

10a). It held that “where a defendant elects to chal-

lenge the government’s conduct of an investigation,

the government may introduce rebuttal evidence, even

though it would amount to hearsay if it were in-

tended to prove the truth of matters asserted, for the

limited purpose of demonstrating that the investiga-

tion was reasonable and free of improper motive”

(id. at 12a (footnote omitted) ).*

2 The court of appeals also rejected petitioner’s claims that

his entrapment defense had been established as a matter of

|

5

Judge Sprouse dissented (Pet. App. 22a-30a). He

stated that petitioner had not raised the issue of the

government’s good faith in a manner that permitted

the admission of the evidence, and that admission of

this evidence allowed the jury to rely upon hearsay

testimony in rejecting petitioner’s entrapment de-

fense.

ARGUMENT

The decision of the court below is correct and does

not conflict with any decision of this Court or an-

other court of appeals. Further review therefore is

not warranted.

1. Petitioner’s principal claim (Pet. 6-10) is that

the court below incorrectly permitted the government

to rebut his entrapment defense by introducing hear-

say testimony showing his predisposition to engage in

criminal activity... This assertion completely mis-

characterizes the decision of the court of appeals. The

government did not contend below that otherwise in-

admissible hearsay can be introduced in order to show

the defendant’s predisposition (see Pet. App. 7a-8a),

and the court of appeals did not adopt a rule permit-

law because there was insufficient evidence of his predisposi-

tion to engage in the offenses (Pet. App. 18a-17a), that the

government’s conduct of the investigation was so outrageous

that it violated due process (id. at 18a-20a), and that peti-

tioner was not subject to prosecution under the Racketeer

Influenced and Corrupt Organization Act because he was not

a member of “organized crime” (id. at 20a-21a).

3 An entrapment defense can prevail only if “the Govern-

ment’s deception actually implants the criminal design in the

mind of the defendant.” United States v. Russell, 411 U.S.

423, 436 (1973). Thus, “the principal element in the defense

of entrapment [is] the defendant’s predisposition to commit

the crime.” Jd. at 433.

6

ting the introduction of such testimony. The court

noted that “every circuit to have considered the use

of hearsay in entrapment cases” has rejected the use

of otherwise inadmissible hearsay, and concluded that

“had the testimony of [the FBI agents] been elicited

as proof of the matters asserted, in order to show the

defendant’s predisposition to commit the offenses

charged, there would be legitimate doubt as to its ad-

niissibility” (id. at 8a).

As the court below demonstrated (Pet. App. 9a-

12a), the hearsay issue in this case arose in a com-

pletely different context. Petitioner sought dismissal

of the indictment before trial on the ground that the

government’s investigation violated his due process

rights. This claim rested in part upon petitioner’s as-

sertion that the government “had ‘no evidence of [pe-

titioner’s] illegal conduct other than that initiated by

its own operatives.’” Id. at 9a. At trial, during

cross-examination of the first FBI agent to testify,

petitioner’s counsel “sought to establish that the FBI

had no evidence that petitioner might be corrupt be-

fore commencing the investigation.” IJbid.; see C.A.

App. 282-284. Counsel for the government requested

a bench conference and informed the court that the

agent was attempting to avoid discussing reports that

indicated that petitioner previously had been involved

in criminal activity (C.A. App. 284). Petitioner’s

counsel stated that he wanted such material put on

the record, and responded affirmatively when the

court inquired “if he puts [these allegations] in now,

are you prepared to run with that?” (ibid.).

Following this exchange, the government elicited

testimony from the other FBI agents cuncerning the

information about petitioner available to the govern-

ment at the onset of its investigation. The agents

7

testified that they had information that petitioner had

taken for his personal use guns seized as evidence,

attempted to purchase stolen guns, and “taken care

of” firearms charges lodged against a cousin. C.A.

App. 483-485, 722-725. The district court stated that

the testimony was admissible because it went to

“probable cause, state of mind” and “what informa-

tion [the government] had” (id. at 482, 725).*

The court below correctly held that “the government

was * * * entitled to develop its rebuttal to [petition-

er’s] due process theory * * *, once the defense called

the government’s conduct into question. Having

‘opened the duor’ the defendant may not be heard to

complain of testimony which proved adverse to his

position that the government had no reason to inves-

tigate him.” Pet. App. lla (footnote omitted); see

also United States v. Webster, 649 F.2d 346, 351 (5th

Cir. 1981) (en banc); ef. United States v. Young,

No. 83-469 (Feb. 20, 1985), slip op. 9-12."

2. Petitioner asserts (Pet. 10-11) that the effect of

the decision below is to require a defendant to choose

between an entrapment defense and a due process

* This testimony did not constitute hearsay because it was

offered in evidence only to establish the state of the govern-

ment’s knowledge, not “to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c) ; see also Pet. App. 1la-12a;

United States vy. Scott, 678 F.2d 606, 612 (5th Cir.), cert.

denied, 459 U.S. 972 (1982).

*The admission of this evidence did not prejudice peti-

tioner’s entrapment defense. As the court below found (Pet.

App. 15a-17a), the jury could infer petitioner’s predisposition

from his willing acceptance of the series of bribes. Moreover,

the question whether this small amount of testimony (six

pages out of a transcript that totaled more than 1,000 pages)

was prejudicial was a matter to be resolved by the trial court.

Fed. R. Evid. 403.

8

claim, presumably because evidence relating to the

due process claim might undermine the entrapment

defense. Petitioner is incorrect.

The defense of entrapment is a matter to be sub-

mitted to the jury, while a claim that the govern-

ment’s conduct was so outrageous that it violated due

process is decided by the trial judge. A claim of

outrageous government conduct typically is resolved

through a post-trial hearing. See United States v.

Dyman, 739 F.2d 762 (2d Cir. 1984), cert. denied,

No. 84-5476 (Jan. 21, 1985); United States vy. Wil-

liams, 705 F.2d 603, 619-622 (2d Cir.), cert. denied,

No. 83-256 (Dec. 5, 1983); United States v. Muers,

692 F.2d 823, 828-829 (2d Cir. 1982), cert. denied,

461 U.S. 961 (1983). Thus, a defendant can raise

an entrapment defense at trial, and, if the defense

proves unsuccessful, present evidence concerning the

due process claim at a post-trial hearing. The deci-

sion below relates only to the unusual situation in

which the defendant chooses to raise the due process

issue before the jury.

Petitioner plainly made a tactical decision to ad-

duce evidence relating to the due process claim

through questioning at trial. He apparently believed

that the jury might be influenced in his favor if he

could show that the government had no incriminating

information at the time it started its investigation.

Having adopted this course of action, petitioner can-

not now argue that the government should have been

barred from introducing its rebuttal evidence relat-

ing to the due process claim. The admission of this

evidence was a result of petitioner’s own tegy and

provides no grounds for a challenge to decision

below.

CON‘CLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

MAy 1985

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