Opposition Brief — Ingram v. United States

4 ry Court, U.S,

(9) 2) . FILED

Nos. 85-2003 and 85-2150 AUG 8 1996

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JOSEPM F. SPANIOL, JR.

RK

on the Supreme Court of the United States

OCTOBER TERM, 1986

Henry E. INGRAM, JR., PETITIONER

V.

UNITED STATES OF AMERICA

CLIFFORD BRANTLEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

Maury S. EPNER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether petitioners’ conspiracy convictions under the

Hobbs Act, 18 U.S.C. 1951, were correctly sustained where

petitioners’ purported victims were actually federal agents

and the object of the conspiracy was thus impossible to

achieve. |

2. Whether the Hobbs Act covers only extortionate con-

duct that adversely affects interstate commerce.

3. Whether the evidence was sufficient to support peti-

tioner Ingram’s conspiracy conviction under the Hobbs

Act.

4. Whether the selection of the jury from a districtwide

pool violated petitioners’ rights under the Sixth Amend-

ment or the Jury Selection and Service Act, 28 U.S.C. 1861

et seq.

5. Whether the district court erred by failing to instruct

the jury on the law of entrapment.

(I)

TABLE OF CONTENTS

Page

CGE nea eu eis eens 066 6h4 Dev n SO e+ ews |

is Sods ed wb dak ide vastus sus kv eee s 2

SE A Cy ee ee ee ee eee 2

ES SES er re Per ere eee rere 5

CONCHUSION 0... .ccccccsccccccccccccscccsccssess 11

_ TABLE OF AUTHORITIES

Cases:

Callanan v. United States, 364 U.S. 587 ........ 5

Lopez v. United States, 373 U.S. 427 .......... 10

Osborn v. United States, 385 U.S. 323 ......... 6

Ruthenberg v. United States,

Se eee s a eS enn cesesvecveacecs 10

Savage v. United States, 547 F.2d 212,

Gert. Gomned, 450 U.S. 958 2... cc csecccccess 9-10

Stirone v. United States, 361 U.S. 212 .......... 7

United States v. Archer, 486 F.2d 670 .......... 3

United States v. Bagnell, 679 F.2d 826,

I, MT SP, BUEE io SicWiscsccccoccee 10

United States v. Brooklier, 685 F.2d 1208,

MP SE, BMD a ccc ccncccccccess 5

United States v. Busby, 780 F.2d 804 ......... 10

United States v. Culbert, 435 U.S. 371 ......... 7

United States v. Feola, 420 U.S. 671 ......... 8-9

United States v. Frazier, 560 F.2d 884,

ee A | ree 5

(III)

IV

Page

Cases—Continued:

United States v. Holmes, 767 F.2d 820 ......... 5

United States v. Jannotti, 673 F.2d 578,

cert. denied, 457 U.S. 1106 .............. 5, 6,8

United States v. Kakley, 741 F.2d 1,

cert. denied, No. 84-5341 (Oct. 9, 1984) ...... 10

United States v. Kuta, 518 F.2d 947,

CE, Se, Se rs RE bn dv cc cccncescees 8

United States v. Mattson,

4 8 5 BAR ee 6-7, 8

United States v. Nations, 764 F.2d 1073 ....... 10

United States v. Rindone, 631 F.2d 491 ........ 5

United States v. Rodgers, 755 F.2d 533,

cert. denied, No. 84-6500 (Juiy 1, 1985) ...... 10

United States v. Rose, 590 F.2d 232,

I, SE CoG baie whe ccecccccss 6

United States v. Russell, 411 U.S. 423 ......... 10

United States v. Staszcuk, 517 F.2d 53,

OE, I, Gr Ge SE os oon cdndn cence 8

Constitution and statutes:

ee EE no’ va be ak eaGebeues 9, 10

ee Fe, es SE ce ks scnckesseses ,

es SE cc Gok svc dbdese usar souens 7

Jury Selection and Service Act of 1968,

a OIG Shi oh cchaneboseuccecce 9

ns. Pol vice i hawabeuss Q

Be Ws OPO Nas Cheha nscb ae wiaesenwaneveu sen 8

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1986

No. 85-2003

HENRY E. INGRAM, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 85-2150

CLIFFORD BRANTLEY, PETITIONER

Ve

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (85-2003 Pet. App.

39-57)! is reported at 777 F.2d 159.

1Unless noted otherwise, all citations to “Pet. App.” will refer to the

petition filed in No. 85-2003.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

November 7, 1985, and a petition for rehearing was denied

on April 2, 1986 (Pet. App. 58-59). The petitions for a writ

of certiorari were both filed on June 2, 1986. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the District of South Carolina, petitioners were con-

victed on one count of extortion and one count of conspir-

ing to commit extortion, both in violation of the Hobbs

Act, 18 U.S.C. 1951. Petitioner Ingram was sentenced to

concurrent four-year terms of imprisonment on the two

counts. Petitioner Brantley was sentenced to concurrent

terms of imprisonment of five and seven years, respectively,

on the two counts, and a $2200 fine. The court of appeals

reversed petitioners’ convictions on the substantive extor-

tion count, but affirmed their convictions on the conspiracy

count (Pet. App. 39-57).

.. The evidence at trial, as summarized in the opinion of

the court of appeals (Pet. App. 41-44), showed that FBI

Agent Theodore Domine was dispatched to South Carolina

from the FBI’s Cleveland office to conduct an undercover

investigation of reported corruption on Hilton Head

Island. Agent Domine posed as a gambler who was inter-

ested in opening and operating a casino, for which he

needed the “protection” of local law enforcement officials.

Petitioner Ingram, a local owner of gam.dling devices, sug-

gested that the agent consider locating the gambling opera-

tion in a vacant restaurant in Hardeeville, a small town in

Jasper County, South Carolina. Ingram said his friend,

petitioner Brantley, was the sheriff of Jasper County and

that Brantley would protect the gambling operation if he

were paid $500 per month. Ingram also proposed that the

agent give Brantley $200 at their first meeting as a gesture of

good faith (id. at 42).

3

Ingram and Agent Domine subsequently visited Brantley

at his office. Domine explained that he intended to rent the

vacant restaurant in Hardeeville and, once a month, to

invite persons from Cleveland, New York, and Chicago to

gamble there at high stakes. Brantley approved the pro-

posal but insisted that it not involve any local persons. At

the conclusion of the meeting, Ingram handed Sheriff Brant-

ley $200 that Agent Domine had given him for that purpose

(Pet. App. 42-43).

After Agent Domine rented the vacant restaurant, he

arranged for gaming tables and other gambling equipment

to be delivered from the FBI training academy in Virginia.

He also stocked a bar with liquor furnished by the FBI.

Thereafter, six to eight FBI agents, posing as gamblers,

assembled at the club once each month for the next four

months. They gambled and purchased drinks with money

supplied by the FBI. In addition, once each month Agent

Domine met with Sheriff Brantley, reported that the casino

was operating as planned, and paid the Sheriff $500 (Pet.

App. 43-44).

2. Petitioners were convicted of both extortion and con-

spiracy to commit extortion. On appeal, the court of

appeals reversed petitioners’ convictions on the substantive

count but affirmed their convictions for conspiracy.

The court of appeals reversed on the substantive count

because it found that petitioners’ acts of extortion had not

actually affected interstate commerce (Pet. App. 45).

Neither the liquor nor the gambling devices that the FBI

transported to South Carolina were the subjects of com-

mercial transactions, the court held. The prosecution had

therefore failed to show thct petitioners had obstructed,

delayed, or affected commerce, within the meaning of the

Hobbs Act, 18 U.S.C. 1951. Pet. App. 44-49. Relying on

United States v. Archer, 486 F.2d 670 (2d Cir. 1973),

4

moreover, the appellate court held that “federal agents may

not manufacture jurisdiction by contrived or pretensive

means” (Pet. App. 49). Thus, because “{i]t was wholly

unnecessary [to the extortion scheme] for the FBI to move

gambling equipment from Virginia to South Carolina, or to

have its agents pretend to gamble and to purchase whiskey,”

the court of appeals found no effect on interstate commerce

and thus no “commercial predicate for federal jurisdiction”

(id. at 50).

With regard to the conspiracy convictions, the court of

appeals reached a different conclusion. As with other con-

spiracy statutes, the court held, “a conviction of conspiring

to obstruct commerce in violation of the Hobbs Act may be

founded upon proof of an agreement to engage in conduct

which would violate the statute” (Pet. App. 51). Thus, even

though the object of the conspiracy could not be attained

and the conspiracy therefore could have had no actual effect

on interstate commerce, petitioners could still be guilty of

conspiracy, as long as the unlawful agreement contem-

plated an effect on interstate commerce. In this case, the

court of appeals noted, petitioners anticipated that the

“{p]atronage of non-residents was to be sought, while local

people were to be excluded from participation” in the gam-

bling enterprise (id. at 55). Petitioners’ agreement therefore

contemplated a substantial effect upon interstate com-

merce. While petitioners may have been “the victims of

pretense in the description of the project,” the court con-

cluded that that did not “sanitize their * * * willing partici-

pation ipa conspiracy to violate the Hobbs Act” (id. at 56).’

?The court of appeals also rejected the assertion that the district court

should have instructed the jury on the law of entrapment, concluding

that “[t}Jhere was insufficient evidence of entrapment to warrant an

instruction on the subject” (Pet. App. 56).

5

ARGUMENT

1. The court of appeals correctly upheld petitioners’

Hobbs Act conspiracy convictions. Moreover, the court’s

decision is not in conflict with the decisions of this Court or

any other circuit. Accordingly, further review by this Court

is unwarranted.

The involvement of federal agents prevented petitioners

from realizing the object of their conspiracy. Nevertheless,

the court of appeals upheld petitioners’ conspiracy convic-

tions because their conspiratorial agreement contemplated

conduct that “would have had more than an adequate effect

upon commerce” (Pet. App. 56). Every circuit court that

has considered this issue has reached the same conclusion:

defendents may be convicted of violating the Hobbs Act

even where, because of the involvement of federal agents, it

is impossible for the defendants to carry out the object of

the conspiracy. See United Siates v. Holmes, 767 F.2d 820

(11th Cir. 1985); United States v. Brooklier, 685 F.2d 1208,

1216-1217 (9th Cir. 1982), cert. denied, 459 U.S. 1206

(1983); United States v. Jannoiti, 673 F.2d 578, 590-594 (3d

Cir.), cert. denied, 457 U.S. 1106 (1982); see also United

States v. Rindone, 631 F.2d 491 (7th Cir. 1980); United

States v. Frazier, 560 F.2d 884 (8th Cir. 1977), cert. denied,

435 U.S. 968 (1978).

Petitioners contend, in essence, that a conspiracy to vio-

late the Hobbs Act is no different from a substantive viola-

tion of that Act. If the substantive crime cannot be carried

out because of the involvement of undercover agents, they

argue, the government may not prosecute the ynlawful

agreement to carry out that substantive crime. _- this

claim overlooks the fact that the conspiracy and substantive

provisions of the Hobbs Act constitute two separate crimes

“composed of differing components” (Callanan v. United

States, 364 U.S. 587, 597 (1961)). The distinction between a

substantive offense and a conspiracy to commit it results in

6

many instances in which particular conduct can be prose-

cuted under one provision but not the other. See Jannotti,

673 F.2d at 593; United States v. Rose, 590 F.2d 232 (7th

Cir. 1978), cert. denied, 442 U.S. 929 (1979) (conspiracy

conviction affirmed despite the fact that involvement of

FBI agents prevented theft of goods from taking place).

This Court made the same point in a closely analogous

setting. In Osborn v. United States, 385 U.S. 323 (1966), an

attorney sought to bribe a member of a jury panel in a

prospective criminal case. Unbeknownst to the attorney,

the person through whom he sought to pass the bribe was

cooperating with federal agents. After his conviction, the

attorney argued, as petitioners do here, that because of the

involvement of federal agents the actual bribe scheme was

“impossible of accomplishment” (385 U.S. at 332). Noting

that the attorney had been charged simply with “endeavor-

ing” to effect the bribe, this Court rejected the impossibility

defense. Because the statute reached all “endeavors” to

corrupt a juror, the Court found that it was unnecessary for

the government to prove that there was some risk that the

juror would actually be corrupted. It was enough that the

defendant had the intent to commit the offense and took

steps to realize this unlawful objective. /d. at 333. The same

analysis applies to a prosecution for conspiracy; as long as

the conspirators share an unlawful purpose and enter into

an agreement to achieve that purpose, the offense is com-

plete, regardless of whether there is any realistic likelihood

that the object of the conspiracy will ever be attained.’

3Petitioner nevertheless asserts (Pet. 20-21, 23) that the decision of

the court of appeals sustaining his conspiracy convicti

the holding in United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982).

In Mattson, the Seventh Circuit overturned a Hobbs Act conspiracy

conviction because “{t}he victim in thjat] case was an individual who

had no connection with interstate commerce at all * * *” (671 F.2d at

1025). Mattson could not be charged with conspiring to violate the

Hobbs Act because the bribe he accepted neither affected nor was

7

2. Petitioner Brantley, while conceding that “interstate

commerce would have been affected by the proposed gam-

bling establishment,” insists that the venture would not

have adversely affected commerce (85-2150 Pet. 12).

Because in his view “the federal government has no interest

in prosecuting a crime that has, either actually or poten-

tially, only a favorable impact on interstate commerce”

(ibid.), Brantley asserts that petitioners’ conspiracy may not

be prosecuted under the Hobbs Act.

As petitioner frankly acknowledges, this argument essen-

tially asks the Court to “engraft[] the word ‘adversely’ into

the meaning of the Hobbs Act” (ibid.). There is neither

precedent nor warrant for restricting the scope of the Act in

that fashion. The Hobbs Act “speaks in broad language,

manifesting a purpose to use all the constitutional power

Congress has to punish interference with interstate com-

merce” (Stirone v. United States, 361 U.S. 212, 215 (1960)).

This Court has expressly refused to limit the broad reach of

the Hobbs Act by reading into it qualifying language that

simply is not there. In United States v. Culbert, 435 U.S.

371 (1978), the Court rejected the contention that conduct

otherwise satisfying the elements of a Hobbs Act violation

must also constitute “racketeering” in order to fall within

the Act. The Court found that the statutory language did

“not lend [itself] to restrictive interpretation” (435 U.S. at

373). Rather, the language “sweeps within it all persons who

have ‘in any way or degree * * * affect{[ed] commerce

* * * by robbery or extortion’ ” (ibid., quoting 18 U.S.C.

1951(a)).

meant to affect interstate commerce. By contrast, petitioners’ agree-

ment to extort protection money from Agent Domine contemplated

that Domine’s illegal casino would be patronized exclusive:y by

gamblers from outside South Carolina. An effect on interstate com-

merce was therefore an integral part of the agreement in this case, but

was no pari at all of the agreement in Mattson. There is accordingly no

conflict between the decision of the Fourth Circuit in this case and that

of the Seventh Circuit in Mattson.

8

The Hobbs Act, on its face, covers all acts of extortion

that “affect commerce.” There is no textual basis on which

to restrict the statutory language as Brantley urges.

Moreover, the decision of the court of appeals is consistent

with the decision in every other case that has addressed the

issue. See, e.g., United States v. Mattson, 671 F.2d 1020,

1024 (7th Cir. 1982) (“[e]ven a beneficial effect on interstate

commerce, e.g., facilitating the flow of building materials

across state lines, is within the prohibition of the statute”);

Jannotti, 673 F.2d at 590; United States vy. Kuta, 518 F.2d

947 (7th Cir.), cert. denied, 423 U.S. 1014 (1975); United

States v. Staszcuk, 517 F.2d 53, 58 (7th Cir.) (en banc),

cert. denied, 423 U.S. 837 (1975). Further review is

unwarranted.

3. Petitioner Ingram asserts (Pet. 24-28) that the evi-

dence supporting his conspiracy conviction was insufficient

because the government failed to show that the conspiracy

had “a probable effect on interstate commerce” (id. at 27).

This claim, however, simply restates in another guise peti-

tioner’s initial contention that there cannot be a Hobbs Act

conspiracy where the object of the scheme is incapable of

being realized. As we noted above (see pages 5-7, supra), the

conspiracy here plainly contemplated that there would be

an effect on interstate commerce. The court of appeals so

found, and its conclusion, based on this record, does not

deserve further consideration.‘

‘This Court’s decision in United States v. Feola, 420 U.S. 671 (1975),

from which petitioner quotes extensively (Pet. 25-27), is not to the

contrary. There, the Court held that one may be guilty of conspiracy to

assault a federal officer, in violation of 18 U.S.C. 371, without specifi-

cally knowing that the victim was a federal officer. In the course of its

decision, the Court noted that while the defendant need not know the

federal status of his victim, the government must nevertheless show that

the defendant knew enough about his intended victim so that it may be

fairly said that the “unfulfilled agreement to assault, * * * standing

alone, constituted a sufficient threat to the safety of a federal officer so

ON i Nh Et OS RN nn ces Na

9

4. Petitioner Ingram contends (Pet. 28-31) that the selec-

tion of his jury from the entire district of South Carolina,

rather than from just the Charleston division, denied him

his rights under the Sixth Amendment and the Jury Selec-

tion and Service Act of 1968, 28 U.S.C. 1861 et seq.

The Jury Selection and Service Act guarantees the ran-

dom selection of juries “from a fair cross section of the

community in the district or division wherein the court

convenes” (28 U.S.C. 1861). Petitioner’s jury was selected

from a pool comprised of persons from the entire district.

The jury selection system used in this case therefore com-

plied with the plain terms of the Act.

Petitioner is equally mistaken in contending that the

jury-selection process failed to provide a “fair cross section

of the community” within the meaning of the Sixth

Amendment. Petitioner does not dispute that his jury was

selected from a “fair cross section” of the district. Nor does

he assert that the trial court’s decision to draw the jury poo!

from the entire district—rather than just the Charleston

division—was somehow intended to deprive him of his

rights. Petitioner simply contends that by drawing the jury

from a statewide rather than a local pool, the trial judge

caused “a substantial reduction of non-white qualified

jurors” (Pet. 30). Even if true, this claim does not make out a

violation of the Sixth Amendment. See Savage v. United

States, 547 F.2d 212, 215-216 (3d Cir. 1976), cert. denied,

as to give rise to federal jurisdiction” (420 U.S. at 695). Petitioner relies

on this language to support his claim that there was insufficient evi-

dence that the conspiracy in this case constituted enough of a threat to

interstate commerce to provide federal jurisdiction. But petitioner mis-

construes the quoted language from Feola. The Court simply stated

that a conspiratorial agreement must contemplate conduct which, if

realized, would satisfy the jurisdictional threshold; the court of appeals

in this case concluded that this conspiracy met that test, and its decision

on that point is amply supported by the record.

10

430 U.S. 958 (1977). By its terms, the Sixth Amendment

requires only that the jury be selected from “the State and

district wherein the crime shall have been committed.”

While the Sixth Amendment has been held to be satisfied by

the selection of juries from only a single division within a

district, see Ruthenberg v. United States, 245 U.S. 480, 482

(1918), there is obviously nothing wrong with a jury-

selection system that complies with the strict terms of the

Amendment by providing for juries to be selected from the

entire district.

5. Finally, petitioner Ingram renews his claim (Pet. 32-

36) that the district court erred by failing to instruct the jury

on the law of entrapment.

In United States v. Russell, 411 U.S. 423 (1973), this

Court observed that “entrapment is a relatively limited

defense” and is available cnly to those defendants who have

“committed all the elements of a proscribed offense, but

[were] induced to commit them by the Government” (411

1) S. at 435). The courts uniformly hold that before a

defendant is entitled to an entrapment instruction, he must

first produce some evidence that the government induced

him to commit the offense. See, e.g., United States v.

Busby, 780 F.2d 804, 806 (9th Cir. 1986); United States v.

Nations, 764 F.2d 1073, 1079-1080 (Sth Cir. 1985); United

States v. Rodgers, 755 F.2d 533, 550-551 (7th Cir. 1985),

cert. denied, No. 84-6500 (July 1, 1985); United States v.

Kakley, 741 F.2d 1, 3 (1st Cir. 1984), cert. denied, No.

84-5341 (Oct. 9, 1984); United States v. Bagnell, 679 F.2d

826, 835 (11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983).

Cf. Lopez v. United States, 373 U.S. 427, 434-435 (1963)

(“before the issue of entrapment can fairly be said to have

been presented in a criminal prosecution there must have

been at least some showing of the kind of conduct by

government agents which may well have induced the

accused to commit the crime charged”). Reviewing the

record in this case, the court of appeals concluded (Pet.

11

App. 56) that Ingram did not make a factual showing

sufficient to merit an entrapment instruction.

While admitting that he had twice accepted cash from

Agent Domine on behalf of Sheriff Brantley (4 Tr. 195,

204), petitioner Ingram never claimed that he was induced

to do so. Rather, he repeatedly denied that he had joined a

scheme to protect an illegal gambling operation, and he

insisted that there was no connection between his accep-

tance of cash from Agent Domine and the operation of the

casino (id. at 193-195, 204-205, 221-223, 231, 234, 239, 241).

Ingram even professed surprise that the agent had given

Brantley money (id. at 200). In short, as the court of appeals

concluded, petitioner failed to adduce evidence sufficient to

require an entrapment instruction to the jury.° The court’s

analysis of the record and its fact-bound conclusion war-

rant no further review by this Court.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

Maury S. EPNER

Attorney

AUGUST 1986

‘Ingram cites only one part of the record as having sufficiently raised

an entrapment defense—that in his own testimony at trial he had

“explain{ed] that he did not understand why those actions [he had

taken] were against the law” (Pet. 34). Plainly, that disclaimer has

nothing to do with any alleged inducement by the government.

DOJ-1986-08