# Opposition Brief — Ingram v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 822

## Text

= ; “, Supreme Court, U.S,
| * 1? FILED
j <f
Nos. 85-2003 and 85-215 | AUG 8 1986
JOSEPM F. SPANIOL, JR.
SLERK

Su 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

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
pooi violated petitioners’ rights under the Sixth Amend-
ment or the Jury Selection and Service Act, 28 U.S.C. i861
et seq.

5. Whether the district court erred by failing to instruct
the jury on the law of entrapment.

(1)

TABLE OF CONTENTS

Page
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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,

EE Se ice h oak ey ess 6s ikke aeen 10
Savage v. United States, 547 F.2d 212,

re 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,

ee ee) 10
United States v. Brooklier, 685 F.2d 1208,

| eee 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,

i ee Te ccc ust er ewcssceceses 5

(IIT)

IV

Page
Cases—Continued:
United States v. Holmes, 767 F.2d 820 ....... ane
United States v. Jannotti, 673 F.2d 578,

Cet, GE, GST Ue UD die wweccacsescs 5, 6, 8
United States v. Kakley, 741 F.2d 1,

cert. denied, No. 84-5341 (Oct. 9, 1984) ...... id
United States v. Kuta, 518 F.2d 947,

curt, Game TS U.S. FR oa cca cecccsecseses 8
United States v. Mattson,

ee Se sbi nde beddapsacsinns 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 (July 1, 1985) ...... 10
United States v. Rose, 590 F.2d 232,

— ek ee 6
United States v. Russell, 411 U.S. 423 ......... 10
United States v. Staszcuk, 517 F.2d 53,

Se, HE UE PE ov oe kee we veces s san 8

Constitution and statutes:
a a Pr EE ocak khan daweaawes 9, 10
eee Pe ee Se SE hk soe c vekawuswse 2,3
ee oe ake ease how aes 7
Jury Selection and Service Act of 1968,
Be is WO Dh kd en tik tS be doneedcenss 9
ee ee, Sac rc cock oe eee deen vueeers 9

gk ede 7 BPP err er err rer eee 8

iu the Supreme Court of the Hnited States

OCTOBER TERM, 1986

No. 85-2003
HENRY E. INGRAM, JR., PETITIONER
V.

UNITED STATES OF AMERICA

No. 85-2150
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

OPINION BELOW

The opinion of the court of appeals (85-2003 Pet. App.
39-57)! is reported at 777 F.2d 159.

‘Unless noted otherwise, all citations to “Pet. App.” will refer to the
petition filed in No. 85-2003.

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).

1. 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 gambling 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).

Lo

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, ouce 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 subjests of com-
mercial transactions, the court held. The prosecution had
therefore failed to show that 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]Jt 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 gambie 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 actuai 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]jatronage of non-residents was to be sought, while local
people were to be excluded from participation” in the gam-
dling 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 in a gonspiracy 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]here 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 cort’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 States 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. Jannotti, 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 unlawful
agreement to carry out that substantive crime. But 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

ii |

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. Jd. 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.?

Petitioner nevertheless asserts (Pet. 20-21, 23) that the decision of
the court of appeals sustaining his conspiracy conviction conflicts With
the hoiding 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 th{at] 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’ agrec-
ment to extort protection money from Agent Domine contemplated
that Domine’s illegal casino would be patronized exclusively 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 part 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) (“fe]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 v. 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

ee

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 pool
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.

et ee een

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 only to those defendants who have
“committed all the elements of a proscribed offense, but
[were] induced to commit them by the Government” (4/1
U.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 Brantiey (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 Doniine 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.

DO}-1986-08

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2130%3A2. Public record. Not legal advice.