Opposition Brief — Bean v. United States

Supreme Court, U.S.

cs FILED |

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No. 87-1169 JOSEPH F. SPANIOL, R.

Jn the Supreme Court of the Gnited States ;

OCTOBER TERM, 1987

RUSSELL BEAN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

ROBERT J. ERICKSON

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ate

QUESTIONS PRESENTED

1. Whether petitioner’s theft of a government-owned

tape recorder from a government informant constituted a

theft of government property in violation of 18 U.S.C.

641.

2. Whether the timing of the government’s issuance of

a grand jury subpoena or the government’s payments to an

informant violated petitioner’s due process rights.

3. Whether petitioner’s conviction on one count must

be reversed on the ground that it was inconsistent with his

acquittal on two other counts.

4. Whether petitioner is entitled to a new trial because

of the absence of an entrapment instruction.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Hampton v. United States, 425 U.S. 484 (1976) ......... 6

Mathews v. United States, No. 86-6109 (Feb. 24, 1988) ... 7

Nelson v. United States, cert. denied, No. 87-656 (Jan. 19,

ted ee waa way ahd ced as genes 0s. 5

United States v. Baker, 693 F.2d 183 (D.C. Cir. 1986) .... 3

United States v. Beverly, 723 F.2d 11 (3d Cir. 1983) ..... 6

United States v. Caputo, 633 F. Supp. 1479, motion for

reconsideration denied, 641 F. Supp. 378 (E.D. Pa.

NN See i a id as 605-40 0 o's bases s 4

United States v. Cervantes-Pacheco, 800 F.2d 452 (1986),

rev’d, 826 F.2d 310 (Sth Cir. 1987) .................. 5

United States v. Feola, 420 U.S. 671 (1975) ............. 3

United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert.

Ro, Rr 6

United States v. Jermendy, 544 F.2d 640 (2d Cir. 1976),

cert. denied, 430 U.S. 909 (1977) ................... 3

United States v. Martino, 825 F.2d 754 (3d Cir. 1987) .... 4

United States v. Powell, 469 U.S. 57 (1984) ............ 6

United States v. Scott, 789 F.2d 795 (9th Cir. 1986) ...... 3

United States v. Speir, 564 F.2d 934 (10ti Cir. 1977),

cert. Gemsed, 435 U.S. 927 (1978) . 6. cc cece 3

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) ...... 6

United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984),

cert. denied, 471 U.S. 1065 (1985) .................. 6

United States v. Young, 470 U.S. 1 (1985) .............. 7

(111)

Statutes and rule:

18 U.S.C. 201(d) ...

18 U.S.C. 641 .....

18 U.S.C. 1510 ....

21 U.S.C. 841(a)(1)

Fed. R. Crim. P. 30

IV

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

_No. 87-1169

RUSSELL BEAN, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION

The opinion of the court of appeals (Pet. App. A4-A5)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 8, 1987. The petition for a writ of certiorari was

filed on December 4, 1987, but was not served on the

government until January 6, 1988. The jurisdiction of this

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

STATEMENT

1. On April 23, 1986, a six-count indictment was

returned in the United States District Court for the

Eastern District of Tennessee charging petitioner with

three counts of distribution of cocaine, in violation of 21

U.S.C. 841(a)(1); bribery of a prospective government

(1)

2

witness, in violation of 18 U.S.C. 201(d); obstruction of

justice, in violation of 18 U.S.C. 1510; and theft of

government property having a value in excess of $100, in

violation of 18 U.S.C. 641. See C.A. App. 23-26.' Follow-

ing a jury trial, petitioner was found guilty of theft of

government property, but he was acquitted on the remain-

ing counts. He was fined $500 and sentenced to a term of

three years’ imprisonment, all but five months and twenty-

nine days of which was suspended in favor of probation

(id. at 59). The court of appeals affirmed in a brief per

curiam opinion (Pet. App. A4-AS5).

2. At trial, the government established that in 1985 the

Federal Bureau of Investigation was investigating allega-

tions that petitioner and others were involved in the

distribution and use of cocaine. Janet Morgan, one of the

individuals allegedly involved in the drug activities, agreed

to cooperate with the FBI and allowed the FBI to record

several conversations she had with petitioner in person and

on the telephone (C.A. App. 230). On the last of those oc-

casions, petitioner asked Morgan whether she was record-

ing their conversation (id. at 319). When she-denied it,

petitioner stated that he had a detection device in his

pocket that indicated that she was carrying a recorder

(ibid.). When Morgan refused petitioner’s request to look

into her purse, he forcibly took the purse from her and

found the recorder inside (id. at 320). Petitioner then left

with the recorder, even though Morgan told him it be-

longed to the FBI (id. at 320-321). Morgan immediately

notified the FBI that petitioner had taken the recorder (id.

at 321-322), and an FBI agent stopped petitioner’s car a

short time later. Upon demand, petitioner surrendered the

recorder to the agent (id. at 780-782).

'“C.A. App.” refers to the Joint Appendix filed in the court of ap-

peals.

3

ARGUMENT

1. Petitioner contends (Pet. 6-9) that the evidence does

not support his conviction under 18 U.S.C. 641 for theft

of government property because he “uncovered the

recorde[r] with the mistaken belief that it [belonged to]

Janet Morgan” (Pet. 7) and because he intended to return

the recorder once he had listened to the tape (id. at 8).

Petitioner’s claim lacks merit on both accounts.

First, it is irrelevant whether petitioner mistakenly

believed that the recorder belonged to Morgan. As the

courts of appeals have consistently held, a violation of 18

U.S.C. 641 does not require knowledge that the stolen

property belongs to the government. See, e.g., United

States v. Scott, 789 F.2d 795, 798 n.2 (9th Cir. 1986);

United States v. Baker, 693 F.2d 183, 186 (D.C. Cir.

1982); United States v. Speir, 564 F.2d 934, 938 (10th Cir.

1977), cert. denied, 435 U.S. 927 (1978); United States v.

Jermendy, 544 F.2d 640 (2d Cir. 1976), cert. denied, 430

U.S. 909 (1977). Cf. United States v. Feola, 420 U.S. 671

(1975).

Nor was the evidence insufficient to support the jury’s

conclusion that petitioner intended to deprive the govern-

ment of its property permanently. The trial court properly

instructed the jury that the taking must be accomplished

“with intent to deprive the owner of [the property’s] use or

benefit, and that means permanently, as opposed to tem-

porarily” (C.A. App. 689). The jury heard petitioner’s

denial that he intended to steal the recorder (see id. at

480-481), but it was apparently persuaded to the contrary

by the evidence that petitioner forcibly took the recorder

from Morgan and that he surrendered the recorder only

after being stopped by a federal agent who demanded its

return (see id. at 319-322, 780-782).

4

2. Petitioner also argues (Pet. 9-13) that his conviction

should be reversed because the government engaged in

misconduct by issuing a “sham” grand jury subpoena to

Morgan and by paying her a fee contingent on the value of

her cooperation in the case. There is no substance to either

claim.

Contrary to petitioner’s assertion, the government did

not seek the issuance of a subpoena to Morgan on October

8, 1985, for the “sham” purpose of inducing petitioner to

commit the bribery and obstruction of justice offenses

charged in Counts | and 2 of the indictment. As the FBI

agent testified at trial (C.A. App. 859-860), the subpoena

was issued at that time to afford Morgan, who appeared as

a witness before the grand jury on October 22, 1985, and

again in April 1986 (see id. at 328, 423, 859), “some cloak

of Federal protection” in the event that she was threatened

or harmed (id. at 859-860). The subpoena was therefore

issued for a proper purpose —to compel Morgan’s appear-

ance. The timing of the issuance of the subpoena served an

equally proper purpose —to extend to the witness the pro-

tections of federal law. The issuance of the subpoena

therefore did not constitute prosecutorial misconduct.

And even if the subpoena had been issued for a “sham”

purpose, petitioner would not have had any ground for

relief. See United States v. Martino, 825 F.2d 754, 759-762

(3d Cir. 1987) (permissible to issue “sham” subpoena under

a pseudonym to protect the identity of an undercover

agent).?

There is likewise no merit to petitioner’s claim that

Morgan was improperly compensated under a contingent

fee arrangement. The government established at trial that

2 In Martino, he Third Circuit reversed the district court’s decision

in United States v. Caputo, 633 F. Supp. 1479, motion for recon-

sideration denied, 641 F. Supp. 378 (E.D. Pa. 1986), upon which peti-

tioner exclusively relies (see Pet. 10).

5

Morgan was not paid any money contingent on her testi-

mony. The FBI agent responsible for the payments to

Morgan testified that the government paid Morgan’s

telephone bill and also made several $100 payments to her

to pay for her security and for her travel out of town on

occasions when petitioner expected her to be visiting her

husbaad in Florida (C.A. App. 885-886). Morgan’s trial

testimony did not contradict that account (see id. at 301,

315-316, 322-323, 327-330).

In any event, petitioner mistakenly relies on the Fifth

Circuit’s panel decision in United States v. Cervantes-

Pacheco, 800 F.2d 452 (1986), in claiming that contingent

fee arrangements violate due process. The Fifth Circuit,

sitting en banc, subsequently reversed that panel opinion

by a vote of 12 to 2 (826 F.2d 310 (1987), and this Court

recently denied certiorari in that case. See Nelson v.

United States, No. 87-656 (Jan. 19, 1988). As we demon-

strated in our brief in opposition in Nelson,’ due process

principles are in no manner violated by compensating in-

formants for their cooperation on a contingency basis.

3. Petitioner contends (Pet. 13-19) that his conviction

for theft of government property should be reversed

because it is inconsistent with his acquittals on two other

counts alleging bribery and obstruction of justice. In the

first place, however, the jury verdicts were not inconsis-

tent. At trial, petitioner asserted an entrapment defense to

the charges of bribery and obstruction of justice, and he

defended against the theft charge on the ground that he

did not intend to deprive the government of its property

on a permanent basis. The jury therefore could have

decided that petitioner was indeed entrapped with regard

} We are providing petitioner with a copy of our brief in opposition

in Nelson.

6

to the bribery and obstruction of justice charges, or that

he lacked the intent to commit those offenses, but that he

acted with the requisite criminal intent when he took the

tape recorder.

In any event, even if the verdicts were inconsistent, that

would not warrant reversal. As this Court explained in

United States v. Powell, 469 U.S. 57, 65-66 (1984), incon-

sistent verdicts are not reviewable because “inconsistent

verdicts —even verdicts that acquit on a predicate offense

while convicting on the compound offense—should not

necessarily be interpreted as a windfall to the Government

at the defendant’s expense. It is equally possible that the

jury, convinced of guilt, properly reached its conclusion

on the compound offense, and then through mistake,

compromise, or lenity, arrived at an inconsistent conclu-

sion on the lesser offense.” Contrary to petitioner’s unsup-

ported assertion (Pet. 14), there is no reason to apply a dif-

ferent rule when an entrapment defense is raised.

4. Finally, petitioner contends (Pet. 19-20) that he

should have been allowed both to deny the commission of

~-

4 Neither of the two cases upon which petitioner relies (Pet. 14-19),

United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984), cert.

denied, 471 U.S. 1065 (1985), and United States v. Twigg, 588 F.2d

373 (3d Cir. 1978), is relevant to petitioner’s inconsistent defense

claim. Neither even involved a claim based on inconsistent verdicts.

Waterman was exclusively concerned with the distinct question

whether a government agreement to reward a witness based on the

success Of the prosecution was valid. Twigg addressed the issue

whether the evidence produced in that case supported an entrapment

defense. The panel decision in Waterman, moreover, was subsequent-

ly vacated by an evenly divided en banc court (see 732 F.2d at 1533),

and the Third Circuit has since questioned whether Twigg is consistent

with-this Court’s decision in Hampton v. United States, 425 U.S. 484

(1976). See United States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983);

United States v. Jannotti, 673 F.2d 578, 610 n.17 (3d Cir.) (en banc),

(concurring opinion), cert. denied, 457 U.S. 1106 (1982).

ee Te

7

the offense and to assert the defense of entrapment. It is

now settled that “even if the defendant denies one or more

elements of the crime, he is entitled to an entrapment in-

struction whenever there is sufficient evidence from which

a reasonable jury could find entrapment.” Mathews v.

United States, No. 86-6109 (Feb. 24, 1988), slip op. 4.

Petitioner, however, never requested that an entrapment

instruction be given with respect to the theft charge. Nor

did petitioner object to the absence of an entrapment in-

struction On that count at the conclusion of the district

court’s jury charge. See C.A. App. 650-681, 689. Hence,

petitioner is entitled to relief now only if the absence of an

instruction amounts to plain error that “seriously affected

‘substantial rights.’ ” See United States v. Young, 470 U.S.

1, 17 n.14 (1985); Fed. R. Crim. P. 30.

. The absence of an entrapment instruction on the theft

charge in this case was not error at all, let alone plain

error. A defendant seeking an entrapment instruction

must adduce sufficient evidence to show that he lacked

predisposition and that he was induced by the government

to commit the offense (see Mathews, slip op. 4-5, 8). Peti-

tioner made no such showing here; nor could he have. The

evidence at trial refuted any possible argument that the

government induced petitioner to steal the tape recorder

and that petitioner lacked the predisposition to commit the

crime. The tape recorder was hidden in Morgan’s purse,

- where petitioner would not discover it. Petitioner used a

detection device to locate the recorder and forcibly re-

moved it from Morgan’s possession. There was not the

slightest suggestion in the evidence that petitioner was

somehow pressured or coerced into engaging in that con-

duct.

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

ROBERT J. ERICKSON

Altorney

MARCH 1988

ve U.S. GOVERNMENT PRINTING OFFICE: 1988— 202-037/60337