Petition for Writ of Certiorari — Drum v. United States

SUPREME COURT OF THE UNITED STATES

October Term 1985

Renn Drum, Jr., )

)

Petitioner, )

)

V5 )

)

United States of America, )

)

Respondent. )

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Norman B. Smith

Smith, Patterson, Follin,

Curtis, James & Harkavy

700 Southeastern Building

Greensboro, NC 27401

(919) 274-2992

Counsel of Record

LEI eal ee eee eae

sen haahitntdandad

— BAG huaZe Seg», ‘ port gies tae

QUESTIONS PRESENTED

bs Does a defendant who testifies

in his own behalf in a criminal con-

Spiracy case, and admits engaging in

overt acts, but denies he did so with

Criminal intent, forfeit his right to

have the jury consider the defense cf

entrapment?

r If a defendant must forfeit his

right to have the defense of entrapment

considered by the jury, as the price of

testifying in his own behalf, (a) 1S an

unconstitutional presumption thereby

created, and (b) is the defendant's right

to testify for himself impermissibly

burdened?

ane i ti 3s Sieh lo

PARTIES

The parties to this proceeding are

the petitioner Renn Drum, Jr., and the

United States of America.

1i

TABLE OF CONTENTS

Questions Presented ......... i

8 eS ye ee eet eS & ye wee

we@pe@ Of Authorities .....+%... ¥

EE |

ee

Constitutional Provision Involved .. 2

meece@ment Of the Case ..:...s..2.3

A Defendant Who Testifies

On His Own Behalf in a Criminal

Conspiracy Case, and Admits

Engaging in Overt Acts, But

Denies That He Did So With

Criminal Intent, Does Not

Thereby Forfeit His Right to

Have the Jury Consider the

Defense of Entrapment. .... .10

II. If a Defendant Must Forfeit

His Right to Have the Defense

of Entrapment Considered by the

Jury, as the Price of Testify-

ing in His Own Behalf, (a) an

Unconstitutional Presumption is

Created, and (b) the Defend-

ant's Right to Testify for

Himself is Impermissibly

ae De

a An Unconstitutional Pre-

Sumption Against Petitioner Was

ee eT

lii

i

B. Petitioner's Right to

Testify for Himself Was Im-

permissib]y Burdened. ... -

Conclusion .« « « « «

lv

TABLE OF AUTHORITIES

Cases

Brown v. United States, 356 U.S.

ee i | ee re Poe cro

Crisp v. United States, 262 F.2d 68

Cie Weed t Pee 6 | rrr cre Pee)

Faretta v. California, 422 U.S.

Bue Ch eee talks eo el eta eee eee

Hampton v. United States, 435 U.S.

Ss | err rer ne ae

Harris v. New York, 401 U.S. 222

eo 2s 6 er re ee ee ae ae ee ee ee

Johnson v. United States, 426 F.2d

Ss. {Osu0Cees LOT ey & 4s teh eee ae

Morisette v. United States, 342

Wows £OO LASSA) * %. & 4 6 ace eee ee

Munroe v. United States, 424 F.2d

“O02 {Aver Clik, Berar a a see ee

North Carolina Utilities Commis-

sion v. Federal Communications

Commission, 552 F.2d 1036 (1977). .10

Sandstrom v. Montana, 442 U.S.

360 TASISe 4) wwe te hae ee ce eee

Sherman v. United States, 356 U.S.

JOe QESSET & kk oe eS eee

Simmons v. United States, 390 U.S.

S77 U290G! 42.6 & & a ee ee eee

Sorrells v. United States, 287

U.S. 435 (1932) . .« « © « «© « LS, 16

Fa -28

i3, 22

30

Timmreck v. United States, 577 F.2d

372 (6th Cir. 1978) ....... .10

Turner v. United States, 396 U.S.

398 (1970) . 2. 2» © © os we ts we lll AG

Uliman v. United States, 350 U.S.

@Z2 (iS5d6) « «© 6 os he eh eu eC Uw ee

United States v. Annese, 631 F.2d

104i (ist Cir. 1980) .... . 412, 15

293

United States v. Demma, 523 F.2d

981 (9th Cir. 1975) ..... .11, 17

> ae

United States v. DeVore, 423 F.2d

1069 (4th Cir. 1970) ....... 219

United States v. Henry, 749 F.2d

203 (Sth Cir. 1984) . ... . «14, 15

19, 20

25, 29

United States v. Hill, 655 F.2d

Si2Zd (3rd Cir. i981) .« »« « © « sh@e 4S

United States v. Kelly, 748 F.2d

6091 (D.C.Cir. 1984) . 2. 2 «6 © 2 @ sil

United States v. Liparota, 735 F.2d

1044 (7th Cir. 1984) . .... 11, 15

vi

United States v. Mayo, 705 F.2d

CF {2G USES EB POEP Var eke eee tae

United States v. Perl, 584 F.2d

SEO CACM Clits aerel e-s ek ew we ee oe

United States v. Russell, 411 U.S.

Ras Capers. sh bee eee eee

United States v. Smith, 757 F.2d

£202 Qlser Gils 2eeet & & w & whe

United States v. Whitley, 734 F.2d

Sige (Stem Cif, L9eet s 6. & ws ws ERD

15

Ware v. United States, 259 F.2d

Sia (GGn- Clits Aseee ss 2 ak 4 ede a8

Whittaker v. United States, 281

Come Sse. Ceeeccies LOG. «a ee 2

Statutes

oo UsGsC. Sec. 195441). 3 kw ke Oe

Miscellaneous

Groot, "The Serpent Beguiled Me ana

I (Without Scienter) Did Fat --

Denial of Crime and the Entrapment

Defense," 1973 U.111.L.Forum 254. .23

54 A.L.R.Fed. 644, Sec. 3(c)

[aeen) & & & Ae & OS eS Aw Se

vil

S A.L.R.4th 1126, Sec. 3(c}

R9GR) 6 ke 4 Se Se eee 8 eee aS

21 Am.Jur.2d Criminal Law Sec.

i} ee Tiere es or ne ee eee eee a 2

Za: ©¢.3.8. Criminal Law Bec. 34 « « «43

vili

No. 85 =

SUPREME COURT OF TKE UNITED STATES

October Term 1985

Renn Drum, Jr., )

)

Petitioner, )

)

Vv. )

)

United States of America, )

)

Respondent. )

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

‘OR THE FOURTH CIRCUIT

Petitioner respectfully prays that a

writ of certiorari issue to review the

judgment and opinion of the United States

Court of Appeals for the Fourth Circuit

entered in this cause on February 21,

1986.

OPINIONS BELOW

The decision of the Court of Appeals

will be, but is not yet, reported. It

appears at pp. la-23a of this petition.

JURISDICTION

The judgment of the Court of Appeals

was entered on February 21, 1986. This

petition 1s filed within 60 days of that

date. This Court has jurisdiction to

review the judgment in question by writ

of certiorari pursuant to 28 U.S.C. Sec.

L25401} =

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitu-

tion of the United States:

No person shall be held to aaswer

for a capital, or otherwise infamous

crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases

arising in the land or naval forces, or

in the Militia, when in actual service in

time of War or public danger; nor shall

any person be subject for the same

offense to be twice put in jeopardy of

life or limb; nor shall be compelled in

any criminal case to be a witness against

himself, nor be deprived of life, liber-

ty, Or property without due process of

law; nor shall private property be taken

for public use, without just compensa-

tion.

STATEMENT OF THE CASE

Petitioner was one of several co-

defendants indicted for conspiracy to

distribute cocaine and various drug-

related substantive offenses in the

United States District Court for the

Middle District of North Carolina.

Petitioner was found guilty of the con-

Spiracy count, but was acquitted of the

Substantive counts of traveling in, and

using instrumentalities of, interstate

commerce for criminal purposes. Peti-

tioner was sentenced to an active sen-

tence of confinement and a fine.

The trial ccurt refused petitioner's

request to instruct the jury on the

defense of entrapment.

Petitioner is an attorney. The

government's theory was that petitioner

first became involved in the cocaine

conspiracy in early August, 1983, when he

was retained to represent Jones, Weeks,

and Foelker, following their arrest for

possession of cocaine and a large quanti-

ty of cash at Atlantic Beach, North

Carolina. Petitioner visited his clients

in a North Carolina Jail, and then after

they were transferred to the Southern

District of Georgia to stand trial for

assault on an F.B.I. officer, in Georgia

jails, during the period of August

through October, 1983.

Petitioner's clients entered guilty

pleas in the United States District Court

for the Southern District of Georgia in

November, 1983, for assaulting an F.B.I.

officer. Weeks was released from custody

pending sentencing, ostensibly for the

purpose of establishing a home and busi-

ness near petitioner's location in North

Carolina. Unbeknown to

the me

Georgia co-counsel, anc

Bureau

antime, Jones, Weeks, petitioner

Of Investigation en!

scheme whereby Jones and

GOovernment agents to Carry

another

n

them make conteéect

+

1ls co-defendant in the

Client of petitioner's ance

| the Fe.

With Wa

Weeks had Warden's telephone number

knew how to reach him. Nevertheless

repeatedly asked

dialing Warden's number

reaching him.

M

>

for petitioner's he

<

an

a

n

or otnhnerwi

Ost of the conversations be

petitioner and Weeks, anda

Jones

phone)

(the latter by long

were tape recorded.

petitione

distance

Weeks

twe

te

08

efi

intimated to petitioner on December 14,

1983, that she was trying to make drug

deliveries to Warden. At this point, and

on several later occasions, petitioner

told her that he did not want to hear

about it and did not want to become in-

volved. Petitioner warned Weeks and

Warden to stop the drug business, anda

stated that if they did not, they would

get in trouble. Petitioner urged Weeks

to set up a legitimate business that

would pay for itself rather than an

illegal business through twhhich drug money

could be laundered. Petitioner told

Weeks that he would not accept any drug

money.

Rebuffed in this fashion by peti-

tioner, Weeks sought to break down his

resistance through the use of her sex

appeal. She suggested, for example, that

her boyfriend Jones was jealous of peti-

tioner, as a means of inducing petitioner

to call Warden for her. itt “Spite of

these blandishments by Weeks, petitioner

refused on one occasion to convey some.

information to Warden about Gdrugs; re-

fused on a second occasion to call Warden

to tell him that drugs were ready to pick

up, but stood by while Weeks got hold of

Warden herself; and on a third occasion

refused Weeks' impassioned request that

he deliver a bag to Warden which he sus-

pected contained drugs, Saying he wanted

his "clients to be straight and to clean

up their act.* Nevertheless, on three

occasions petitioner telephoned Warden

at the behest of Weeks; those phone calls

were the sum total of any activity on

petitioner's part that could be regarded

aS contributing tc a conspiracy.

Petitioner's expert psychologist

testified that he had diagnosed him as

suffering from a mental abnormality,

narcissistic personality disorder. This

witness explained that the personality

disorder manifested itself in fantasiz-

ing, exhibitionism, and a grandiose sense

of self-importance, and was celated to a

deep seated feeling of inadequacy. This

witness found from the government's

secretly-taped conversations of petition-

er, Clear evidence of a compulsive need

on his part to please others, which was

another manifestation of the personality

disorder. Thus, on account of his mental

condition, petitioner was particularly

susceptible to the efforts of Weeks and

Jones to get him involved in their con-

spiracy.

Petitioner testified on his own

behalf that he did not travel or use

communication facilities for illegal

purposes. He testified that he did nct

engage in any discussions with Warden,

Jones, Foelker, Weeks, or others relating

to any illegal drug business. He ad-

mitted that he made contact with Warden

at the request of Weeks to tell him that

she wanted to see him, but denied that he

did so for the purpose of assisting druq

trafficking by them.

The Court of Appeais affirmed peti-

tioner's conviction on a theory not

raised by the government, or discussed by

the parties in their briefs or at oral

argument, holding that by taking the

stand in his own defense, petitioner

forfeited his right to have the jury

consider the cefense of entrapment.

at

REASONS FOR GRANTING THE WRIT

I. A DEFENDANT WHO TESTIFIES ON HIS

. OWN BEHALF IN A CRIMINAL CONSPIRACY CASE,

AND ADMITS ENGAGING IN OVERT ACTS, BUT

DENIES THAT HE DID SO WITH CRIMINAL

INTENT, DOES NOT THEREBY FORFEIT HIS

RIGHT TO HAVE THE JURY CONSIDER THE

DEFENSE OF ENTRAPMENT.

The Court of Appeals overruled the

Fourth Circuit's former rule established

in Crisp v. United States, 262 F.2d 68,

70 (4th Cir. 1958), in contravention of

the well-established principle that the

Court of Appeals must sit en banc if it

\

is toe overrule an earlier decision of the

court. North Carolina Utilities Commis-

sion v. Federal Communications Commis-

sion, 552 F.2d 1036 (1977); Timmreck v.

United States, 577 F.2d 372 (6th Cir.

1978), rev'd. o.g., 441 U.S. 780 (1979).

The Court of Appeals correctly

discerned that there is a split of au-

thority among the courts of appeals on

10

the general question of whether or not a

defendant may testify that he is innocent

of the crime charged, and at the same

time contend that he was entrapped.

Cases holding that a defendant is not

precluded from testifying as to his

innocence and at the same time contending

he was entrapped, include United States

V. Demma, 523 F.2d 981, 982 {Sth Cir.

1975) (en banc); and United States v.

Kelly, 748 F.2d 691, 701 nv2d (6.6.Cir.

1984). Cases holding, on the other hand,

that a defendant may not testify he did

not commit the crime and at the same time

Claim the entrapment defense include

United States v. Smith, 757 F.2d Liti«

1167-69 (llth Cir. 1985); United States

Vv. Liparota, 735 F.2d 1044, 1048 (7th

Cix. 1964), rev'd. 6.8. , U.S. ’

105 S.Ct. 2084 (1985); United States

11

v. Whitley, 734 F.2d 1129, 1139 (6th

Cir. 1984); United States v. Mayo, 705

F.2d 62, 72-73 (2d Cir. 1983); United

States v. Hill, 655 F.2d 512, 514 (3rd

Cir. 1981); United States v. Annese, 631

F.2d 1041, 1046-47 (1st Cir. 1980);

Munroe v. United States, 424 F.2d 243,

244 (10tn Cir. 1970) (en banc); Ware

v. United States, 259 F.2d 442, 445 (8th

Cir. 1958).

The position which the Court of

Appeals purported to adopt is based

primarily on the rationale that it is

inappropriately inconsistent for a de-

fendant to deny guilt and at the same

time assert entrapment. See United

States v. Smith, supra, 757 F.2d at

1167-68. This rationale does not square

with the general rule that a defendant in

a criminal prosecution may assert incon-

Sistent defenses, leaving it to the jury

to determine where the truth lies. 21

Am.Jur.2d Criminal Law Sec. 142: 22

C.J.S. Criminal Law Sec. 54. See, €.9.,

Johnson v. United States, 426 F.2d GSi.

656 (D.C.Cir. 1970) (denial of sexual]

intercourse and claim of consent); Whit-

taker v. United States, 281 F.2d 631

(D.C.Cir. 1960) (denial of underlying

acts and claim of insanity).

The Court of Appeals, rather than

subscribing to a majority position as it

claimed to be doing in its opinion,

instead pronounced a uniquely erroneous

rule that is inconsistent with the deci-

Slons of all of the other courts of

appeals. The Court of Appeals failed to

recognize that the facts of the instant

case come within a well-estabiisheea

13

exception to the rule that it purported

to adopt. The exception is that a de-

fendant- in a conspiracy case is permitted

to admit that he did the acts that are

Charged, but to deny that he acted with

conspiratorial intent, and at the same

time rely on the defense of entrapment.

See Annots., 54 A.L.R.Fed. 644, 655-656,

Sec. 3(c) (1981); 5 A.L.R.4th 1128, 1140,

Sec. 3(c) (1981).

In an en banc decision, the United

States Court of Appeals for the Fifth

Circuit very recently explained why the

rule preserving the defense of entrap-

ment when the defendant denies an essen-

tial mental element of the crime, in

spite of his admission of performing the

act in question, is mandated by leading

decisions of this Court. United States

14

V. Henry, 749 F.2d 203 (5th Cir. 1984) ,1

The law of entrapment as developed in

this Court stems Primarily from the

Opinion of Chief Justice Hughes in Sor-

rells v. United States, 287 U.S. 425

(1932)... There the Court characterized

entrapment as an affirmative defense,

inconsistent with guilt. The majority

Opinion rejected the government's conten-

1 In none of the cases relied on by

the Court of Appeals in the instant case,

was there an issue concerning conspira-

cOrlal intent, since in each case the

defendant denied any involvement with the

Substantive offenses in question. United

States v. Liparota, supra (unlawfol

possession of food Stamps); United States

Vv. Whitley, supra (purchase of cocaine);

Uniced States v. MayO, supra (sale of

.-machine guns); United States v. Hill,

Supra (distribution of heroin); United

States v. Annese, Supra (manufacturing

controlled substance); Munroe Vv. United

States, Supra (sales of amphetamines) ;

Ware v. United States, supra (purchase,

Possession, and sale of heroin); United

States v. Smith, Supra (admission of drug

conspiracy with government agents, but

denial of conspiracy with non-agents).

tion that entrapment should be treated as

a plea in bar, which would absolve the

defendant regardless of guilt or inno-

cence. "It is assumed that the accused

is not denying his guilt but is setting

up special facts in bar upon which he

relies regardless of his guilt or inno-

cence of the crime charged. This, as we

have seen, is a misconception. The

defense is available, not in the view

that the accused though guilty may go

free, but that the Government cannot be

permitted to contend that he is guilty of

a crime where the government officials

are the instigators of his conduct." 287

0.6. at 452.2

2 The Court further emphasized that

entrapment is an affirmative defense

inconsistent with guilt, when it said,

"We are unable to approve the view that

the court, although treating the statute

as applicable despite the entrapment, and

the defendant as guilty, has authority to

16

The Court adopted the same reasoning

in Sherman v. Uniteed scates, 356 Us.

369, 377 (1958), where it was stated

that, "the issue of whether a defendant

has been entrapped is for the jury as a

part of its function of determining the

guilt or innocence cf the accused." The

Court reiterated in the more recent cases

of United States v. BUSSE1!, 613 U.S.

423, 434-435 (1973) and Hampton v. United

states, 435 U.S. 484, 488-490 (1976),

that entrapment remains an affirmative

cdefense by which the defendant's guilt or’

innocence is determined on the basis of

his mental state, and is not a due pro-

cess conception by which criminal prose-

Cutions are to be dismissed on account of

grant immunity, or to adopt a procedure

to that end." 287 U.S. at 449.

Li?

police misconduct. As Judge Hufstedler

of the Ninth Circuit, explained:

Under Sorrells, whenever the element

of non-entrapment is put in issue the

Government must prove beyond a reasonable

doubt that the acts charged were non-

entrapped acts. The Government bears

this burden whether or not the crime

charged involves a subjective, mental

element and whether or not the defendant

concedes any mental element involved.

wea we Relieving the Government of the

burden of proving that the necessary acts

were non-entrapped, conflicts funda-

mentally with the Sorrells conception of

entrapment. -- United States v. Demma,

523 F.2d 981, 383 (9th Cir. 1LF75).

The central inguiry in an entrapment

defense is whether the criminal conduct

was the product of the accused's intent,

or whether it was produced by the crea-

tive activity of law enforcement of-

ficers. “The predisposition and criminal

design of the defendant are relevant.

But the issues raised and the evidence

adduced must be pertinent to the con-

trolling question whether the defendant

18

is a person otherwise innocent whom the

Government is seeking to punish for an

alleged offense which is the product of

the creative activity of its own offi-

ae FOR lg Sorrells v. United States, 287

U.S. at 451. Consistent with this analy-

Sis, and prior to its decision in the

instant case, the Fourth Circuit's rule

had been that in order to carry the

entrapment defense to the jury, the

defendant must produce "more than a

scintilla", United States v. Perl, 584

Poem eee eee eer Cir. 1978), of “some

evidence of unreadiness on his part, or

Of persuasion by the agent." United

States v. DeVore, 423 F.2d 1069, 1071

(4tn Cis. 2970).

As stated by the Fifth Circuit in

United States v. Henry, 749 F.2d 203, 211

(Sth Cir. 1984), in light of the forego-

19

ing analysis of the defense of entrap-

ment, it is not “impermissibly incon-

sistent for an accused both to claim that

his admitted acts were without criminal

intent, but that nevertheless any act he

so committed was induced by governmental

entrapment. Did he intend to commit the

crime? If so, what was the origin of

that intent?” The court went on to

observe that "proof of lack of criminal

intent often may be much of the proof of

both inducement and lack of predisposi-

tion. ». « « The Jury's Ceacitionses Toie

should not be pared down simply because a

defendant expresses a personal belief in

his lack of criminal intent.” 749 F.2d

at 213-214.

In the instant case it was not

logically inconsistent, and it was well

within the conception of entrapment as

20

developed by this Court for petitioner to

Maintain his innocence of criminal intent

and at the same time to contend that he

had been entrapped into committing acts

that could be regarded as carrying out

the objectives of the drug conspiracy.

The jury obviously believed petitioner's

testimony that he did not travel or use

instrumentalities of interstate commerce

for criminal purposes, because he was

acquitted of these counts of the indict-

ment. Petitioner was convicted of con-

spiracy on the basis of his overt acts

consisting cf assisting the undercover

government agent tc make contact with his

co-defendant Warden. Testifying in his

own behalf, petitioner freely admitted

having rendered this assistance, but

denied that he did so for any illegal

purpose or with the intent to forward a

criminal enterprise. On these facts, it

was inconsistent with this Court's deci-

sion in Sorrells v. United States, for

the Court of Appeals to withdraw the

entrapment defense from the jury.

II. IF A DEFENDANT MUST FORFEIT HIS

RIGHT TO HAVE THE DEFENSE OF ENTRAPMENT

CONSIDERED BY THE JURY, AS THE PRICE OF

TESTIFYING IN HIS OWN BEHALF, (a) AN

UNCONSTITUTIONAL PRESUMPTION IS CREATED,

AND (b) THE DEFENDANT'S RIGHT TO TESTIFY

FOR HIMSELF IS IMPERMISSIBLY BURDENED.

The Court of Appeals in the instant

case faiied to take account of the con-

stitutional dimensions of its decision.

Since the point decided by the court had

not been briefed or argued by the par-

ties, neither the government nor peti-

tioner had an opportunity to address

their views on the constitutional issues

implicit in the decision.

The United States Court of Appeals

for the Ninth Circuit in United States

22

¥V. Demma, 523 F.2d 981, 986 (9th Cir.

1975), noted that there are sericus

constitutional objections to rejecting

the entrapment defense of a defendant who

testifies that he is innocent. In the

present case, the constitutional objec-

tions are twofold. First, an unconsti-

tutional presumption against petitioner

was created. Second, petitioner's right

to testify for himself was improperly

burdened. The constitutional arguments

are set forth in Groot, "The Serpent

Beguiled Me and I (Without Scienter) Dia

Eat -- Denial of Crime and the Entrapment

Defense,” 1973 U.111.L.Forum 254, 269-75.

A. An Unconstitutional Presumption

Against Petitioner Was Created.

The Court of Appeals held in this

Case that if petitioner wished to main-

tain that he had been entrapped, and at

23

the same time testify im his own behalf,

he could not testify that his actions

were without criminal intent. The clear

effect of this holding was tc create an

icrebuttable presumption that whenever

one is entrapped, he must be guilty of

the crime.

There are a great many factual

settings, including that of the present

case, in which this presumption 1s un-

reasonable. Petitioner would not have

done the acts, i.e., made the telephone

calls, that the government relied upon to

secure his conviction of conspiracy, had

he not been induced by the undercover

government agent. Nevertheless, when he

did these acts, even though to paraphrase

his testimony he suspected he was getting

Gangerously close to the drug dealing

business, he did not intend to become,

24

and did not believe he was becomina,

personally involved. 3

The presumption imposed by the court

below is unconstitutionally invaliad

because it collides with the constitu-

tionally mandated presumption of innc-

cence in criminal cases. Sandstrom v.

Montana, 442 U.S. 510 (1979): Morisette

Vv. United States, 342 U.S. 246 t83321%

Petitioner would have had to surrender

his presumption of innocence and freely

admit to guilty acts with guilty know-

ledge, in order to rely on the entrapment

cefense, according to the court below.

"A conclusive presumpticn which testimony

could not overthrow would effectively

eliminate intent as an ingredient of the

3 See United States v. Henry, 749

F.2d 203, 213 -(1984) {"ingeed, proort ot

lack of criminal intent often may be much

of the proof of both inducement and lack

of predisposition.")

25

offense. . .. [T]his presumption would

conflict with the overriding presumption

of innocence with which the law endows

the accused and which extends to every

element of the crime." Morisette v.

United States, 342 U.S. at 274-275.4

B. Petitioner's Right to Testify

for Himself Was Impermissibly Burdened.

The court below held that the price

to petitioner of taking the stand in his

own behalf, was surrender of his entrap-

ment defense. The right of one accused

of a crime to testify in his own behalf

is well-established. Harris v. New York,

4 The lower court's presumption,

even if it were only a permissive and not

a mandatory one, would not pass constitu-

tional muster, since it cannot be said

that the presumed fact, i.e., possession

of criminal intent, more likely than not

flows from the proven fact, i.e., entrap-

ment. Turner v. United States, 396

U.S. 398, 404-405 (1970). See Sandstrom

v. Montana, Supra, 442 U.S. at 519, n. 9.

26

401 U.S. 222, 225 {1971)3 Faretta v.

California, €22 U.S O06, 819% fa 2S

(1975). This is a fundamental right on

which the government must not place

burdens and conditions. Petitioner's

testimony was honest; he was not decep-

tive. He believed that his acts were

free of criminal intent, yet he would not

have acted in the way that he did without

having been persuaded by the government

agent. The Court of Appeals' rule would

force a false confession from petiticner

as the price cf submitting the entrapment

defense.» Under these circumstances,

5 petitioner's dilemma is markedly

Gifferent from that of the defendants in

cases like Harris v. New York, supra, and

Brown v. United States, 356 U.S. 148

(1958), who were required to face truth

determination cGevices like cross examina-

tion and impeachment in return for taking

the stand in their own defense, whereas

petitioner was deprived of a benefit

because he told what he regarded to be

the truth.

a@

there is no basis for exacting the relin-

quishment of petitioner's entrapment

defense, as the price of his testimony in

self-defense. Cf., Simmons v. United

otates, 390 U.S. 377 (1968).

~ @ & 2 a2 2 ©

The iower court's retroactive over-

ruling of its prior decision was uniquely

prejudicial to petitioner. Had- he known

that Crisp v. United States, 262 F.2d 68

(4th Cir. 1958), was to be overruled, he

could have made a reasoned decision as to

whether or not to take the stand in his

own defense. Had he known that the price

of testifying truthfully would have been

the loss of his entrapment defense, he

might have elected to adhere to his

constitutional right of maintaining his

Silence. Ullman v. United States, 350

U.S. 422 (1956). Strategically this

28

would not have been unreascnable, since

the government's recorded tapes were

replete with instances in which peti-

tioner cautioned the government under-

cover agent against doing anything ille-

gal, and in which petitioner refused to

engage in various actions that he stated

were improper. ©

Because petitioner could not foresee

the Court of Appeals' reversing the

existing authority of the circuit, he

unwittingly, unintentionally exercised

his right to testify in his own behalf,

and by testifying created an irrebuttable

6 Cases on both sides of the ques-

tion of whether one can testify as to

innocence and at the same time maintain

he was entrapped, are in agreement that

the defendant who does not take the stand

in his own defense is free to rely on the

defense of entrapment. United States v.

Henry, 749 F.2d 203, 205, 207-208 (5th

Cir. 1984); United States v. Annese, 631

F.2d 1041, 1045-1047 (lst Cir. 1980).

29

presumption, resulting in his loss of the

right to present the entrapment defense

to the jury.

CONCLUSION

This Court should grant certiorari

in this case, and should reverse the

decision of the United States Court of

Appeals for the Fourth Circuit holding

that denial of conspiratorial intent

works a forfeiture of the entrapment

defense, for the reasons that this deci-

sion is fundamentally inconsistent with

the substantive law of entrapment as

developed by this Court in Sorrells v.

United States and its progeny, and that

the decision imposes unconstitutional

burdens on the presumption of innocence

and the right to testify in one's own

behalf.

30

Respectfully submitted,

Norman B. Smith

Smith, Patterson, Follin,

Curtis, James & Harkavy

700 Southeastern Building

Greensboro, NC 27401

Telephone: (919) 274-2992

Counsel of Record

31

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 84-5291 (L)

United States of America,

Appellee,

versus

Ramon Elesvan Dorta,,

a/k/a Raymond. Dorchester,

Appellant.

NO. 84-5294

United States of America,

Appellee,

versus

Luis German Laverde,

Appellant.

NO. 64-5295

App. 1

United States of America,

Appellee,

versus

Donald Bruce Knight,

Appellant.

NO. 84-5296

United States of America,

Appellee,

versus

Renn Drum, Jr.,

Appellant.

Appeal from the United States District

Court for the Middle District of North

Carolina, at Greensboro. Recnara cC.

Erwin,’ District Judge. (CR 84-31-01-G;

O2-G; 03-G; O7/-G)

Argued: November 4, 1985

Decided: February 21, 1986

Before WINTER, Chief Judge, SNEEDEN,

Circuit Judge and HILTON, United States

District Judge for the Eastern District

of Virginia, sitting by designation.

Age. 2

Norman B. Smith for Appellant Renn Drum,

Jr.; A. Wayne Harrison for Apvellant

Donald Bruce Knight; Michael Burnbaum for

Appellant Luis German Laverde (Smith,

Patterson, Follin, Curtis, James and

Harkavy; Bronis & Portela, P.A.; Robert

Kalter, P.A. on brief) for Appellant

Ramon Elesvan Dorta; David B. Smith,

Assistant United States Attorney (Kenneth

W. McAllister, United States Attorney;

Becky M. Strickland on brief) for

Appellee.

SNEEDEN, Circuit Judge:

Appellants Dorta, LaVerde, Knight,

and Drum were indicted for numerous drug

related offenses arising out of an al-

leged cocaine distribution operation.

They appeal their subsequent convictionsl

.\ Jury found Dorta guilty of one

count of conspiracy to distribute cocaine

in violation of 21 U.S.C. Sec. 846, five

counts of using a telephone to carry on

illegal drug activities in Violation of

is 0.8.C. See. 1952(a) (2), (a) (3), ana

five counts of possessing cocaine with

the intent to distribute in violation of

el U.S. See. G@41(a) (1). LaVerde was

found guilty of one count of conspiracy

App. 3

On numerous grounds. Finding no merit in

appellants' contentions, we affirm.

Ae

On August 5, 1983, federal agents

arrested Donald Jones and Susan Weeks at

Atlantic Beach, North Carolina, and

Charged them with possession of cocaine.

As part of an eventual plea bargaining

agreement, Jones and Weeks agreed to

testify against appellants.

The evidence introduced by the

government at trial can be briefly sum-

marized. The testimony by Jones, Weeks,

and other witnesses implicated appellants

to distribute cocaine and one count of

uSing the telephone to carry on illegal

drug activities. The jury found Knight

guilty of one count of conspiracy to

distribute cocaine, three counts of using

the telephone to further illegal drug

activities, and two counts of possession

of cocaine with intent to distribute.

Drum was convicted of conspiring to

distribute cocaine.

App. 4

Dorta, LaVerde, and Knight in a drug

distribution operation dating from 1981.

The distribution network involved cocaine

pick-ups in Florida and deliveries in

North and South Carolina. Their testi-

mony also implicated Henry Warden (a

co-defendant not involved in this appeal)

as playing a key role in the drug distri-

bution ring. Appellant Drum was Warden's

attorney. Jones and Weeks testified

that, after their arrest, Drum visited

them in jail on Warden's behalf in order

to arrange for the continuation of co-

Caine deliveries.

As part of their agreement with the

government, Jones and Weeks pretended to

continue their illegal drug activities

after their release from jail. THis

effort, in which Jones and Weeks were, in

effect, government agents, commenced

App. 5

Sometime in November, 1983. As a result

of their cooperation, the government

introduced additional evidence implicat-

ing Drum in the distribution conspiracy.

Appellants were arrested on February 7,

1984.

ik.

The first issue we will discuss is

Drum's assertion that the trial court

committed reversible error by refusing to

instruct the jury on the entrapment

Gefense. Drum claims that nenatdetabie

evidence was introduced which demon-

strates that Weeks induced Drum fo join

the drug conspiracy during the time she

was acting as a government agent. Citing

our decision in United States Vv. Hunt,

749 F.2d 1078 (4th Cir. 1984), Drum

asserts that the trial court was required

to instruct the jury on entrapment.

Apr. 6

However, we do not need to decide

this issue because the record reveals

that in his testimony before the jury,

Drum unequivocally and repeatedly denied

any involvement in the cocaine conspira-

cy. Thus, Drum is claiming in one breath

that he did not commit the crime, and in

the next that even if he did commit it,

the government entrapped him. 2

The vast majority of the circuit

courts of appeals have adopted the rule

that defendants may not testify that they

did not commit the crime charged and also

assert the -entrapment defense. See,

2 The reason for the district

court's refusal to instruct the jury on

entrapment is not entirely clear from the

record. The government took the position

at trial that an entrapment instruction

should not ke given in this case because

it would be inconsistent with Drum's

denial of wrongdoing. Accordingly, this

inconsistency may have been the basis for

the court's ruling.

-

App. Fi

e.qg., Uaited States Vv, Guitth,--7ot-P.ea

1161, 1267-69 (lith- Cir. 1985)3. Carre

States v. Liparota, 735 F.2d 1644, 1C48

(7th Cir. 1984), rev'd. on other grounds,

105 §.Ct. 2084 (1985): United States

v. Whitley, 734 F.2@ 1123) £257 etn

Cir. 1984); United States v. Mayo, 7/05

F.2d 62, 72-73 (2nd Cir. 1983)? United

States v. Hill, 655 F.2d Si2, S314: 42r¢

Cir. 1981), cert. denied, 104 S.Ct. 699

(1984); United States v. Annese, 631

F.2d 1041, 1046-47 (ist Cir. 1980);

Munroe v. United States, 424 F.2d 243,

244 (10th Cir. 1970) (en banc); Ware

v. United States, 259 F.2d 442, 445 (8th

Cir. 1958).3 The primary rationale for

3 The Fifth Circuit has recently

adopted a hybrid position in which a

testifying defendant may not deny that he

has committed the acts charged and also

claim entrapment, but the defendant may

deny having criminal intent and still be

entitled to assert the entrapment de-

App. 8

this rule is the unacceptable incorsis-

tency that arises when a defendant both

denies guilt and asserts entrapment.

see, @.g., United States v. Smith, 757

F.2d at 11€7-68; Munroe v. United States,

424 F.2d at 244.

This circuit's holdings on whether

defendants may assert an entrapment

defense inconsistent with their denial of

committing the crime have been sparse and

inconsistent. In Nutter v. United

States, 289 F. 484, 485 (4th Cir. 1923),

this court took the position that a

defendant may not succeed on a claim of

entrapment when he has testified that he

fense. United States v. Henry, 749 F.2d

203, 205 (5th Cir. 1984) (en banc).

Only two circuits permit a defendant

to deny all elements of the crime and

Still claim entrapment. United States

V¥. Kelly, 523 F.2d 691, 7O0L ni 24 (0.C.

Cir. 1984); United States v. Demma, 523

F.2c 981, 982 (9th Cir. 1975) (en banc).

App. 9

did not commit the crime.4 In 1958 we

took the opposite position in Crisp

v. United States, 262 F.2d 68, 79 (4th

Cif. £P7Sh« The opinion in Crisp does

not cite or discuss Nutter, which another

court had two years earlier interpreted

to support the rule that the entrapment

defense is not available when the defend-

ant denies commission of the crime,

Henderson v. United States, 232 F.2d 169,

172-73 (5th Cir. 1956). Our research has

failed to locate any Fourth Circuit

opinion citing Crisp with approval on the

issue in question here.

4 As an alternative holding, the

court's opinion in Nutter also relied

on evidence of the defendant's predis-

position to commit the crime. 289 F. at

485. We note, however, that other courts

have interpreted Nutter to be consistent

with the proposition that a defendant may

not raise the entrapment defense when he

has denied commission of the crime. See,

e.g., Henderson v. United States, 237

P.420 169, 2f2°7f3 (Sth Cifs FSSS3 «

App. 10

We must choose between our conflict-

ing positions in Crisp and Nutter. We

conclude that the better rule is that

defendants are not entitled to a jury

instruction on entrapment when they

testify that they have not committed the

Crime charged. Not only is this the much

more recent position of the overwhelming

majority of other Circuits, but more

importantly, it is also in the interest

of protecting the integrity and the

truth-finding function of Our Criminal

trials. "A criminal prosecution ... is

not a game, It ~incorporates a mora]

content and an ultimate concern with

guilt or innocence that are inconsistent

with permitting the accused to say, 'I

didn't do it, but if I did, the govern-

ment tricked me into it.'" United States

Vv. Rey, 706 F.2d 145, 147 (5th Cir. 1983)

App. 11

(citation omitted). Accordingly, the

Sraai COUrt:, Gad not “err in reftasinc

Drum's request that the jury ce

instructed on entrapment.

tif.

We next address the claim by all the

appellants that the trial court erred in

refusing to allow their counsel to cross-

examine the government's chief witness,

Jones, concerning his belief as to what

his maximum sentence could have been had

he not cooperatec with the government.

Appellants contend that this ruling

violated their constitutional right to

confront adverse witnesses.

We recognize that a witness' unaer-

etanding of what benefits he will receive

as a result of his cooperation with the

government is relevant and that the

defendant is constitutionally entitled to

App. 12

explore this subject during cross-exami-

nation. Davis Vv. Alapka,. 4235 U.8.. 308

(1974); Hoover v. Maryland, 714 F.2d 301

(4th Cir. 1983). In Hoover v. Maryland,

we held that a state trial court had

unconstitutionally abridged the defend-

ant's right to confront an adverse wit-

ness by a “sustained and effective re-

Fusal to permit inquiry into [the wit-

ness'] understanding of his bargain with

the government." 714 F.2d at 306. In

that case we concluded that the court's

"interference" with defense counsel's

cross-examination on the bias issue was

: e &

“pervasive.” Id.°?

9 In Hoover, the trial judge had

"indicated his belief that the letter

Granting immunity was the only evidence

on the contents of the immunity agreement

neeaed by the jury." 714 F.2d at 306.

App. 13

A careful review of the record here

reveals that appellants' counsel cross-

examined Jones thoroughly, if not exhaus-

tively, concerning his possible bias

arising out of his agreement with the

government. Appellants' counsel ex-

plored, for example, Jones' conviction

for assaulting an FBI agent; his past

Criminal conduct, including the number of

times he possessed cocaine; his under-

standing of the use immunity he was

granted for his grand jury testimony; his

understanding of the implications of his

plea agreement; and his motivation for

testifying. The trial court clearly did

not impose "Substantial limitations on

the attempts of a defendant to undermine

as biased a witness' testimony." Hoover

v. State of Maryland, 714 F.2d at 305.

App. 14

The “defendants in this case ob-

tained from the witness a clear anda

complete statement of [the witness']

understanding of the plea bargain and of

what benefits [the witness] would receive

as a result." United States v. Odom, 736

F.2d 104, 108-09 (4th Cir. 1984).

Accordingly, we find no error in the

trial court's ruling.®

6 The information which appellants

Claim that the district court improperly

prevented them for eliciting -- namely,

Jones' understanding of the total possi-

ble sentence he would have faced for all

the crimes he had committed that were

covered by his plea agreement -- was

readily ascertainable from Jones' testi-

mony On cross-examinaton. Jones testi-

fied on cross-examination that he had

possessed cocaine in North Caroilna 50 to

100 times and that it was his understand-

ing that fifteen years was the maximum

sentence for each possession. Thus,

while relevant, this evidence was proper-

ly excludable as repetitive. Davis v.

Alaska, 415 U.S. at 316.

App. 15

IV.

Appellants' remaining four conten-

tions do not reaguire detailed discus-

sion. The first of these is that the

trial court erred in allowing two govern-

ment charts into evidence that appellants

allege inaccurately and unfairly sum-

marized telephone toll records. The

lengthy telephone records had already

been introduced into evidence, and the

Charts in question summarized the calls

that were relevant to the government's

case.

Rule 1006 of the Federal Rules of

Evidence provides that the "contents of

voluminous writings, recordings, or

photographs which cannot conveniently be

examined in court may be presented in the

form of a chart, summary, or calcula-

tion." Since the charts in question here

App. 16

accurately summarized evidence already

before the jury, we find no €rror in the

district court's exercise of discretion

is admitting the charts into evidence.

See United States Vv. Kettner, 675 F.24 at

602, 605-06 (4th Cig. ), Cert. denied,

T5938 c--839 (1982).

The appellants also assert error in

the trial court's refusal to give

Appellant Drum's requested jury instruc-

tions on the elements of conspiracy. 4

Careful comparison of the instructions on

conspiracy given by the district court

and those requested by Drum, however,

reveals that the instructions Given by

the court, as « whole, included the

substance of Drum's requested conspiracy

Charge and were "sufficiently precise to

instruct the jury in the defendant's

theory of defense." United States y.

App. 17

Miller, 658 F.2d 235, 237 (4th Cir. 1981)

(quoting United States v. Mitchell, 495

F.2G 285, 268 €4tH Cir. 19773). We

therefore find no error in the district

court's charge to the jury on the ele-

ments of conspiracy.

Next, Appellate LaVerde claims that

the trial court erred in refusing to

Suppress Diane Palas' in-court identifi-

cation of him. After LaVerde's arrest,

Palas was shown the pictures of the seven

individuals arrested in this case. She

identified the individuals in the picture

by name. LaVerde contends that the photo

display was unduly suggestive in that he

was the only foreigner in the pictures.

Even assuming, without deciding,

that the photo display was unduly sugges-

tive, we find no error because the

totality of the circumstances in this

App. 18

———— tC ttt‘ C;S;tr”™;é‘SCé;CO~™;

case -- including Palas' several previous

encounters with LaVerde -- “fall far

short of the 'very substantial likelihood

of irreparable misidentification'

standard that is required." United

States v. Hughes, 716 F.2d 234, 241 {4th

Cir. 1983) (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)).

Finally, Appellant Knight urges that

the district ccurt erred in failing to

grant his request for a jury instruction

on the law of multiple conspiracies. The

indictment alleged a single conspiracy

existing from March, 1981, until February

ts USS: Knight's position is that the

evidence establishes two conspiracies: a

minor conspiracy, in which he is impli-

cated, that began in March of 1981 and

ended on August 5, 1983, and a separate

conspiracy, in which he has not been

App. 19

implicated, that began on August 5, 1983,

and continued until February 7, 1984.

The bulk of the government's evidence

concerned the period of time beginning in

August, 1983, and ending in February,

1984.

Our initial inquiry is "whether the

evidence, when viewed in the light most

favorable to the government, Glasser

otter strates, 315 U.S. 60, 80, 62

Daun Sor, S69, 86 L.EG. 680 (1942),

supports the jury's finding of a single

conspiracy." United States v. Hines, 71/7

F.20 1481, 1489 (4th Cir. 1983). Apply-

ing this standard, the evidence clearly

supports the jury's verdict. Evidence

introduced at trial implicated Knight as

an active member of a cocaine distribu-

tion ring whose core members remained

App. 20

—----

basically unchanged during the approxi-

mately three-year period alleged in the

indictment. Even assuming that the jury

could not have found that Knight partici-

pated in the specific drug transactions

occurring during the last six months of

the cocaine distribution scheme, there

was no evidence that Knight had withdrawn

from the conspiracy or that it had termi-

nated and a new conspiracy had begun.

Since the other core members of the

conspiracy and its basic operation re-

mained unchanged, a new conspiracy did

not arise simply because two former co-

conspirators began to act as government

agents. "To separate the drug conspiracy

at issue into multiple conspiracies

pertaining to each drug transaction would

not only be artificial, but would distort

the common goal of the conspiracy."

App. 21

United States v. Adams, 759 F.2d 19099,

R210 “(2e4. Cites 298s a Accordingly,

Knight's assertion of error based on the

existence of multiple conspiracies has

no merit./

= Ws

After carefully considering all of

appellants' contentions, we conclude that

the judgments entered pursuant to the

jury's verdict should be affirmed.

7 Contrary to the position taken in

appellants' brief, at oral argument

counsel for Knight contended that the

evidence showed not two, but four, con-

Spiracies. While we do not feel com-

pelled to address this contention made

only at oral argument, we note that it is

likewise meritless.

Knight also contends that the trial

court erred in denying his motion to

sever, which was based on the existence

of multiple conspiracies. Clearly, the

court did not abuse its discretion. See

United States v. Spoone, 741 F.2d 680,

688 (4th Cir. 1984) (denial of motion to

sever reviewed under abuse of discretion

standard).

App. 22

AFFIRMED.

23

App.