Opposition Brief — Robinson v. United States

©)

No. 86-542 J

EERE ener eae See TY

Jn the Supreme Court of the Gnited eae

OCTOBER TERM, 1986

DONALD ROBINSON, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JANIS KOCKRITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

OSEPH F. SPANIOL, JR,

QUESTION PRESENTED

Whether the evidence at trial required that the court in-

struct the jury on the entrapment defense.

(I)

TABLE OF CONTENTS

ET na ee |

Ne ees cd ak ed cece keer ee

Sd ea On tc dweeesuwewee

|

|

TSG pee e hak ease heehee REN ase eeweia's 5

8

Nee ee awa eed eéeesecs

TABLE OF AUTHORITIES

Cases:

United States v. Annese, 631 F.2d 1041 (ist Cir. 1980)... 6

United States v. Bagnell, 679 F.2d 826 (11th Cir. 1982),

cert. denied, 460 U.S. 1047 (1983) .................. 5-6

United States v. Brooks, 567 F.2d 134 (D.C. Cir. 1977) .. 6

United States v. Busby, 780 F.2d 804 (9th Cir. 1986) ..... 5

United States v. Demma, 523 F.2d 981 (9th Cir. 1975) ... 5

United States v. DeVore, 423 F.2d 1069 (4th Cir. 1970) ... 6

United States v. Luce, 726 F.2d 47 (Ist Cir. 1984) ....... 5,6

United States v. Nations, 764 F.2d 1073 (Sth Cir. 1985)... 5,7

United States v. Rhodes, 713 F.2d 463 (9th Cir.), cert.

Statutes:

Ee Oe

United States v. Sarmiento, 786 F.2d 665 (Sth Cir. 1986) . 8

United States v. Shoup, 608 F.2d 950 (3d Cir. 1977) ..... 5

United States v. Smith, 629 F.2d 650 (10th Cir.), cert.

re es suka csssesstccccssacess 5

Ne ck veh dds van ses vwhosevcess l

ed nt pew aa hu waa eR eS

ee naa oc ceed bateens 2

(111)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-542

DONALD ROBINSON, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-32a)

is reported at 795 F.2d 278.

JURISDICTION

The judgment of the court of appeals was entered on

June 30, 1986. The petition for a writ of certiorari was

filed on September 2, 1986, and is therefore out of time

under Rule 20.1 of the Rules of this Court. The jurisdic-

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

STATEMENT

After a jury trial in the United States District Court for

the Eastern District of Pennsylvania, petitioner was con-

victed of racketeering, in violation of 18 U.S.C. 1962(c)

(Count 1), racketeering conspiracy, in violation of 18

U.S.C. 1962(d) (Count 2), and two counts of attempting

to possess methamphetamine with intent to distribute it,

(1)

2

in violation of 21 U.S.C. 846 (Counts 6 and 21). Petitioner

was sentenced to concurrent terms of five years’ imprison-

ment on Counts | and 2, and a five-year term of probation

on Counts 6 and 21.!

1. The Pagans Motorcycle Club was a multistate

organization that, from a least 1976 to 1982, manufac-

tured and distributed certain controlied substances, prin-

cipally phencyclidine and methamphetamine (Pet. App.

7a). Petitioner was the Pagans’ national treasurer (Gov’t

App. 33a-34a).? In addition, he served as an “advisor” to

local chapters of the Pagans in the Philadelphia and

southern New Jersey areas (id. at 72a). The evidence ‘at

trial showed that, throughout the 1976-1982 period, peti-

tioner received presents and small quantities of phen-

cyclidine in exchange for permitting drug distribution to

occur through Pagan club contacts and on Pagan club

premises (Pet. 4).

In the fall of 1977, Richard Lehr, one of the Pagans’

phencyclidine suppliers, asked petitioner for permission to

use a middleman in selling phencyclidine to Pagan

members (Gov’t App. 309a-310a). Lehr indicated that

Pagan members had complained about the price and

quality of the drugs he was supplying, and Lehr said he

believed using a single dealer would improve the distribu-

tion situation (ibid.). Petitioner declined to act as the mid-

dleman himself, but he allowed Lehr to make such an ar-

rangement with Michael Grayson, another Pagan member

(id. at 310a-313a). Thereafter, Lehr provided Grayson

' Petitioner was indicted together with nine co-defendants. Two of

them pleaded guilty, and the others were all convicted at trial.

? “Gov't App.” refers to the supplemental appendix filed by the

United States in the court of appeals.

3

with approximately 9 to 14 pounds of phencyclidine each

week for distribution among the Pagans (id. -at

313a-316a).

In January 1983, one of the Pagans’ former metham-

phetamine suppliers, James DeGregorio, informed peti-

tioner that he had procured all of the chemicals necessary

to manufacture methamphetamine (Gov’t App. 235a-236a).

DeGregorio asked petitioner to alert his former Pagan

customers that he would soon have methamphetamine for

sale (id. at 236a). DeGregorio promised to give petitioner

one pound of methamphetamine for assisting him (id. at

268a-269a). Unbeknownst to petitioner, DeGregorio was

acting as an informant for federal law enforcement of-

ficers at that time (id. at 20a-24a).?

Several days later, on January 15, 1983, DeGregorio

contacted petitioner again and informed him that the

methamphetamine was almost ready for sale (Gov’t App.

236a-237a). DeGregorio asked if petitioner had contacted -

any of DeGregorio’s former customers (id. at 238a). Peti-

tioner replied that he had tried to contact one Pagan

member but had failed (ibid.). He said that he would con-

tinue trying to contact that member and others (id. at

238a-239a).

The next day, DeGregorio took 20 pounds of “look-

alike” methamphetamine to a Holiday Inn in Essington,

Pennsylvania (Gov't. App. 239a-243a). From _ there,

DeGregorio telephoned petitioner and indicated that the

methamphetamine was ready for sale (id. at 244a-245a).

Petitioner stated that he had successfully contacted one

3 DeGregorio had been convicted in state court in September 1982

on charges of attempted murder (Gov’t App. 21a). While he was in

prison, federal officials contacted him and obtained his agreement to

act as an informant for them (id. at 20a-22a). State authorities tem-

porarily released DeGregorio so that he could work with the federal

officials (id. at 22a-24a).

a

Pagan member, Charles McKnight (id. at 245a). Later that

day, McKnight telephoned DeGregorio and informed him

that he had received DeGregorio’s message from petitioner

and that he wanted to purchase methamphetamine (id. at

250a-252a). A short time later, McKnight and Michael

Grayson came to the hotel (id. at 25la-252a, 260a-261a);

each purchased a pound of the “look-alike” metham-

phetamine (id. at 260a, 273a-276a). Later that evening,

they returned and purchased another two pounds of the

substance (id. at 277a-279a).*

The following evening, DeGregorio met with petitioner

(Gov’t App. 282a-283a). At that meeting, DeGregorio ©

gave petitioner a pound of the “look-alike” metham-

phetamine as payment for assisting him, and petitioner ac-

cepted it (id. at 290a-291a). Petitioner subsequently sold

half of the pound of “look-alike” methamphetamine to

Kenneth Weaver, another member of the Pagans (17 Tr.

54).5

In his defense, petitioner denied that he was a dealer in

drugs or that he had ever conspired to distribute metham-

phetamine (22 Tr. 191; 23 Tr. 40). Specifically, he testified

that he told DeGregorio several times that he did not want

the pound of methamphetamine because he “wouldn’t

know what to do with it” (23 Tr. 38). Nonetheless, peti-

tioner testified, DeGregorio left the drugs in petitioner’s

van (ibid.). Petitioner further testified that, when he gave

some of the “look-alike” methamphetamine to Kenneth

Weaver a few weeks later, he told Weaver that he “didn’t

think it was anything” and that he “knew it was garbage,

not what it was supposed to be” (id. at 39-40).

4 Petitioner’s conduct in arranging for the sale of the “look-alike”

methamphetamine to McKnight and Grayson formed the basis for the

charge in Count 6 of the indictment.

$ Petitioner’s possession of a pound of the “look-alike” metham-

phetamine formed the basis for the charge in Count 21 of the indict-

ment.

5

At the close of his defense, petitioner requested that the

court instruct the jury on the defense of entrapment. The

court refused to do so, noting that petitioner had not ad-

mitted the elements of the offenses with which he was

charged. Pet. 6.

2. The court of appeals affirmed (Pet. App. la-32a).

It found petitioner’s challenge to the district court’s refusal

to give an entrapment instruction “to be without merit and

[to] require no discussion” (id. at Sa & n.2).

ARGUMENT

Petitioner argues (Pet. 6-9) that this Court should grant

a writ of certiorari to resolve a conflict among the circuits

concerning whether a defendant must admit all the

elements of a charged offense before he is entitled to raise

the defense of entrapment.® The evidence petitioner pro-

duced, however, would not entitle him to an entrapment

instruction in any circuit. Accordingly, this case is not an

appropriate vehicle for addressing the issue petitioner

raises.

The courts of appeals uniformly hold that, before an en-

trapment instruction may be given, a defendant must

“make some showing of both inducement [by the govern-

ment] and lack of predisposition [by the defendant]”

(United States v. Nations, 764 F.2d 1073, 1079 (Sth Cir.

1985)}. See also United States v. Busby, 780 F.2d 804, 806

(9th Cir. 1986); United States v. Luce, 726 F.2d 47, 49 (Ist

Cir. 1984); United States v. Rhodes, 713 F.2d 463, 467

(9th Cir.), cert. denied, 464 U.S. 1012 (1983); United

® The Ninth Circuit has held that a defendant can argue both that he

did not commit the unlawful acts charged against him and that, if he

did, he was entrapped. See United States v. Demma, 523 F.2d 981

(1975) (en banc). Other courts of appeals have held that such inconsis-

tent pleading is impermissible. See United States v. Smith, 629 F.2d

650 (10th Cir.), cert. denied, 449 U.S. 994 (1980); United States v.

Shoup, 608 F.2d 950 (3d Cir. 1979).

6

States v. Bagnell, 679 F.2d 826, 835 (11th Cir. 1982), cert.

denied, 460 U.S. 1047 (1983). Thus, unless there is some

evidence of “overreaching inducive conduct on the part of

the government” (United States v. DeVore, 423 F.2d 1069,

1071 (4th Cir. 1970)), and an “unreadiness” on the defend-

ant’s part (United States v. Annese, 631 F.2d 1041, 1047

(1st Cir. 1980)), no circuit allows the entrapment defense

to be sent to a jury. See also United States v. Brooks, 567

F.2d 134, 142 (D.C. Cir. 1977) (Robinson, J., dissenting).

In this case, the evidence was insufficient on both issues.

There was no evidence at trial that the government

coerced or pressured petitioner to commit the charged of-

fenses. See United States v. Luce, 726 F.2d at 49; United

States v. Bagnell, 679 F.2d at 835. Petitioner testified that

DeGregorio solicited his assistance in the distribution of

the “look-alike” methamphetamine. But solicitation alone

does not establish “inducement” by the government; there

must be some evidence of at least “mild persuasion or

coercion” (ibid.). Petitioner did not suggest that

DeGregorio pressured him to contact McKnight (see 23

Tr. 35), so there is no basis whatsoever for his entrapment

claim_as to the charge of aiding and abetting the attempted

possession of methamphetamine on January 16. And peti-

tioner’s brief testimony about DeGregorio’s conduct in

giving him the pound of methamphetamine on January 18

does not suggest that DeGregorio coerced or pressured

petitioner in any way. The most petitioner’s testimony sug-

gests is that DeGregorio wanted petitioner to have the

methamphetamine and that petitioner said he did not want

it and would not know what to do with it (23 Tr. 38). After

DeGregorio had allegedly left the drug in petitioner’s van,

petitioner admits he maintained possession of the drug for

several weeks, after which he distributed part of it to

Weaver (23 Tr. 38-40). Thus, even taking petitioner’s

testimony as true, the evidence was insufficient to support

7

petitioner’s claim that he was pressured by an agent of the

government to commit the offenses with which he was

charged.’

Nor did the evidence in any way support petitioner’s

contention that he was not predisposed to commit the

crimes for which he claims he was entrapped. See United

States v Nations, 764 F.2d at 1080; United States v.

Rhodes, 713 F.2d at 467. On the contrary, the record con-

tains “overwhelming evidence of his predisposition”

(ibid.). Petitioner was a member of the drug distribution

enterprise well before DeGregorio solicited his assistance

in the “look-alike” methamphetamine distribution scheme:

petitioner aided and abetted Lehr’s distribution of phen-

cyclidine in 1977 and, more generally, allowed the

distribution of drugs through club contacts and on club

premises throughout the 1976-1982 period. Furthermore,

the record shows that DeGregorio had good reason to con-

tact petitioner in 1982 and to offer him a pound of the

“look-alike” methamphetamine in exchange for assisting

in its distribution: petitioner had acce,ted presents and

small quantities of drugs throughout the 1976-1982 period

in exchange for facilitating the distribution of controlled

substances to Pagan members. Although petitioner dis-

puted the evidence of his drug activities in his own

testimony, he made a number of damaging admissions that

’ Rather than supporting a defense of entrapment, petitioner’s

testimony appears to have been designed to support a very different

defense. As to the telephone call to McKnight, petitioner testified that

he did not know that DeGregorio was contacting McKnight for pur-

poses of arranging a drug deal (see 23 Tr. 131). As to petitioner’s

possession of the pound of “look-alike” methamphetamine, petitioner

testified that he did not initially accept the drug. Instead, he testified

that DeGregorio left it for him in his van. After he discovered that he

had the substance, petitioner said, he doubted that it was metham-

phetamine, and therefore claimed that he never had the intent to

possess a controlled substance (23 Tr. 39-40).

8

undermined his claim that he was not predisposed to

possess methamphetamines. In particular, he admitted

that he had used phencyclidine regularly and that he had

used methamphetamine as well (22 Tr. 192-193; 23 Tr.

78-81). He also admitted that he had held supplies of

methamphetamine for DeGregorio on other occasions (22

Tr. 193). In addition, petitioner testified that DeGregorio

and another drug distributor had regularly given him sup-

plies of phencyclidine, which petitioner had on occasion

distributed to others (id. at 204, 215-218, 220, 222; 23 Tr.

10, 84). Thus, the evidence in the record does not remotely

support petitioner’s contention that he was an un-

predisposed victim of coercive pressure by a government

agent.

Where, as here, the defendant has not met his initial

evidentiary burden, he is not entitled to an instruction on

the entrapment defense. See, e.g., United States v.

Sarmiento, 786 F.2d 665 (Sth Cir. 1986). Thus, regardless

of whether a defendant can properly assert inconsistent

defenses in an entrapment case, petitioner has failed to

establish his entitlement to an entrapment charge.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JANIS KOCKRITZ

Attorney

DECEMBER 1986

US. GOVERNMENT PRINTING OFFICE: 1986— 181-483/40155