# Petition for Writ of Certiorari — Drum v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1756%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 477 U.S. 905 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1756%3A1. Public record. Not legal advice.