Opposition Brief — Yun v. United States

—

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Y) DEC 9

No.90-535 JOSEPH F. SPARIGK, 5%

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

JUWHAN YUN, PETITIONER

Vv.

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

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

GEOFFREY R. BRIGHAM

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

_ — = es

QUESTIONS PRESENTED

1. Whether the government’s undercover investi-

gation of petitioner’s involvement in illegal muni-

tions-export plans violated the Due Process Clause.

2. Whether the evidence established the defense of

entrapment as a matter of law.

(1)

TABLE OF CONTENTS

Page

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GR RC 2

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TABLE OF AUTHORITIES

Cases:

Hampton v. United States, 425 U.S. 484 (1976)... 7,9

United States v. Driscoll, 852 F.2d 84 (3d Cir.

SL Ae Ee AE a 9

United States v. Jacobson, 893 F.2d 999 (8th Cir

Ei Ear TS RE er CE 9

United States yv. Jacobson, 916 F.2d 467 (8th Cir.

DESTRESS Nc A RAI ae a 9

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

1981), cert. denied, 457 U.S. 1106 (1982) 00... 9

United States v. Jenrette, 744 F.2d 817 (D.C. Cir.

1984), cert. denied, 471 U.S. 1099 (1985) ........ 9

United States v. Luttrell, 889 F.2d 806 (9th Cir.

a capentnnithlioecwideidawe 9

United States v. Luttrell, 906 F.2d 1384 (9th Cir

I ccisodidpauipioceninmen 9-10

United States v. Miller, 891 F.2d 1265 (7th Cir.

Ce ai ae eaeraiisonaensions 9

United States v. Myers, 635 F.2d 932 (2d Cir.),

cert. denied, 449 U.S. 956 (1980) -...002200200000.. 9

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

Constitution, statutes and regulations:

U.S. Const. Amend. XIV (Due Process Clause)... 6,8

a ee 2

REESE ae a 2

a scestncahinpinsini 2

(IIT)

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-535

JUWHAN YUN, 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

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 4a-

5a) is unreported. The opinion of the district court

(Pet. App. 6a-33a) is reported at 718 F. Supp. 366.

JURISDICTION

The judgment of the court of appeals was entered

on March 29, 1990, and a petition for rehearing was

denied on April 27, 1990. Pet. App. 2a-3a. On July

12, 1990, Justice Brennan extended the time within

which to file a petition for a writ of certiorari to

September 24, 1990, and the petition was filed on

(1)

2

that date. Pet. App. la. The jurisdiction 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 District of New Jersey, petitioner was

convicted of conspiring to export nerve gas (Sarin)

without a license, in violation of 18 U.S.C. 371, 22

U.S.C. 2778(b) (2), and 22 C.F.R. 127.1.* He was

sentenced to 30 months’ imprisonment and _ three

years’ supervised release. The court of appeals af-

firmed. Pet. App. 4a-5a.

1. The evidence at trial showed that in June 1988,

petitioner, the president of Komex International,

telephoned William E. DeArman, the project director

at CIC International, a company involved with the

defense industry and international trade. Petitioner

requested a quotation on “ammunitions,” specifically

105 and 106 millimeter ammunition. He followed un

his telephone inquiry with a telefax reciting his re-

quirements and stating that the end-user of the mu-

nitions would be the Republic of Korea. For a num-

ber of reasons, however, DeArman, a former United

States Customs Agent, was suspicious of the inquiry.

First, members of the defense industry were nor-

mally fluent in the pertinent arms nomenclature and

would not have used the term “ammunitions.” Sec-

ond, 105 millimeter ammunition was not of a type

commonly requested by a government. Third, there

were several manufacturers located in Korea that

could have supplied that type of material. Fourth,

CIC International did not normally receive domestic

* Petitioner was acquitted on another count charging at-

tempted exporiation of nerve gas without a license. Gov’t

C.A. Br. 3.

3

requests for such material; rather, most inquiries

came from its own agents or directly from foreign

governments. Gov’t C.A. Br. 5-6; see also C.A. App.

1.63-1.70, 1.78-1.80.

DeArman notified the United States Customs Serv-

ice, which commenced an undercover operation.

_ C.A. App. 1.67-1.68. Customs Agent Richard Ken-

nan telephoned petitioner and introduced himself as

Richard Moyes, the president of T & C Trading,

which Kennan said was an export arm of CIC Inter-

national. During the ensuing six months, petitioner

and Kennan continued negotiations about the ammu-

nition. Persons in the business of exporting defense

articles must register with the Office of Munitions

Control, and petitioner’s company, Komex Interna-

tional, was registered with that Office during this

time. Gov’t C.A. Br. 6-7.

In July 1988, Kennan and petitioner met and dis-

cussed “silkworm” and TOW-2 missiles. Kennan

claimed that he could obtain those items. Petitioner

immediately mentioned Iran, and told Kennan that

four years earlier he had made inquiries concerning

TOW missiles on behalf of South Korea, which was

interested in obtaining 400 missiles for Iran. Peti-

tioner recounted that this activity had prompted a

visit from the FBI, but that he had told the FBI

that the missiles were for Korea. At a later meeting

in August 1988, petitioner confirmed that the actual

destination of the TOW missiles was Iran. Gov't

C.A. Br. 9-10.

Later in August 1988, petitioner again contacted

Agent Kennan. Petitioner stated that a customer

needed 1250 missiles, but he expressed concern about

the “illegality” of the order because the missiles were

on the United States’ Munitions List and therefore

required an export license from the Office of Muni-

4

tions Control. An export license identifies, inter alia,

the purpose for which the commodity is to be ex-

ported and the foreign “end-user.” See Gov't C.A.

Br. 7, 10. Petitioner suggested that he could obtain

a phony end-user certificate, and Agent Kennan in-

dicated that he could obtain a phony export license,

which he said would cost either 1° of the total price

or $50,000, whichever was less. Petitioner said that

the $50,000 presented no problem. Kennan empha-

sized to petitioner that the license would not be legal,

because it would be based on a phony end-user and

because the arms would actually be going to Iran.

Petitioner stated that the purchaser would use a

third country that was friendly to the United States

as the purported final destination. Petitioner even-

tually told Agent Kennan that he had made up his

mind to go through with the TOW missile deal, and

he later inquired about the availability of other prod-

ucts to sell to Iran, including stinger missiles and

Varian tubes. /d. at 10-11.

in November 1988, Charles Caplan, of Domino As-

sociates Holding Ltd. in London, asked whether peti-

tioner could provide 500 units of the nerve gas Sarin

for shipment to Iran. Petitioner promised to check.

Having intercepted these communications, Agent

Kennan told petitioner the next day that he had re-

ceived a massive order for many items desired by

Iran, including “chemical stuff like Sarin.” C.A.

Supp. App. 41; C.A. App. 2.22-2.23. Two days later,

petitioner telefaxed a message to Caplan, stating that

petitioner was scheduled to have dinner with “a busi-

ness gentleman for your 500 ea.” C.A. Supp. App. 46,

47; C.A. App. 2.26; Gov’t C.A. Br. 11-13.

Shortly thereafter, petitioner met Agent Kennan

for lunch. After discussing other matters, including

5

the ammunition, petitioner raised the subject of the

Sarin. Kennan furnished petitioner information con-

cerning available containers and prices. Petitioner

suggested using a code name for the chemical in dis-

cussions and telefaxes. Shortly after lunch, peti-

tioner informed Caplan by telefax that the product

could be shipped within a month, and he asked Cap-

lan to specify the desired container size. In Decem-

ber 1988, after additional contacts with Caplan, peti-

tioner asked Kennan to procure 500 units of Sarin in

a specified container. Kennan stated that he would

need a 10% down payment in advance, which would

include the cost of the phony export license. Peti-

tioner also discussed financial arrangements for the

deal that would yield him a profit of $2000 per unit,

for a total of $1 million. Gov’t C.A. Br. 13-15.

After petitioner had further conversations with

Caplan and Kennan, petitioner and Kennan discussed

the Sarin deal at length at a meeting on January 11,

1989. Kennan assured petitioner that he would pro-

cure an export license, but again he stated that the

license would be “bogus.” Petitioner suggested that

the license identify the goods as “crankshafts,” but

Kennan pointed out that this subterfuge would not

survive a cursory inspection and suggested that the

license specify regular Mark 82 bombs. Toward the

end of the meeting, the two men quarreled concern-

ing the financial arrangements and shipping date.

Petitioner told Kennan that his contacts in London

were skeptical about Kennan because petitioner had

not previousiy dealt with him. Petitioner wanted to

complete the munitions deal first and delay the Sarin

deal. Kennan did not want to proceed with the muni-

tions deal because although the items were available,

the financial arrangements for it would have placed

6

the Customs Service at risk of financial loss, and

Kennan wanted to complete the Sarin investigation.

Kennan accordingly told petitioner that, for cash-flow

reasons, the Sarin deal had to be completed before the

munitions deal. Petitioner, who did not want the

two matters connected, insisted that petitioner first

demonstrate his capability through the munitions

deal. Gov’t C.A. Br. 17-18.

Unable to resolve the matter, the two men parted.

Within about an hour, however, petitioner telephoned

Kennan twice and left a message for Kennan to call

him. When Kennan returned the call, petitioner ex-

plained that he was doing what he could, that the

timing of the Sarin deal was beyond his control, and

that the earliest shipping date would be early Feb-

ruary. Kennan asked for time to think about it, and

he called petitioner again later that evening. They

discussed both the Sarin deal and the munitions deal,

as well as the possible shipment of anti-aircraft mis-

siles, for which petitioner suggested getting a phony

export license to permit quick shipment. Petitioner

reassured Kennan that if he was patient, they would

eventually make a lot of money. The two men agreed

to talk the next day. On January 12, 1989, petitioner

was arrested in Kennan’s office. Gov’t C.A. Br. 18-19.

2. The district court rejected petitioner’s argu-

ment that the undercover operation established en-

trapment as a matter of law and violated the Due

Process Clause. Pet. App. 6a-33a. Petitioner’s con-

tention that he was entrapped as a matter of law

rested principally on the notion that he had with-

drawn from the conspiracy at the January 11, 1989,

meeting. Jd. at Ta, 2la-22a. The court rejected this

contention, observing that what transpired during

the meeting and the “blow-up” between the two men,

as well as petitioner’s prior and subsequent actions,

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7

were “hotly disputed by the parties and [were] for

the jury to evaluate,” id. at 21a, and “‘the jury found

that [petitioner] was predisposed, and thus not en-

trapped.” Jd. at 7a. “Viewing the evidence in a light

most favorable to the government,” the court found

“no basis to disturb the jury’s determination that

[ petitioner] was not entrapped and did not withdraw

from the conspiracy.” Jd. at 22a.

The district court likewise concluded, based on this

Court’s decisions in United States v. Russell, 411

U.S. 423 (1973), and Hampton v. United States, 425

U.S. 484 (1976), and an elaborate review of Third-

Circuit precedents, that petitioner did not have a vi-

able due process claim. Pet. App. 18a-19a; see id. at

9a-21la. The court could not “find that the investiga-

tion was launched for an improper reason,” in view

of the suspicious nature of petitioner’s initial inquiry

to an official of CIC International. Jd. at 19a. The

court further observed that “[n]o authority now

exists which would permit this court to find that the

mere initiation of the investigation violated [peti-

tioner’s] due proces rights.” Jd. at 7a. Finally, the

court concluded that because the government had of-

fered sufficient evidence to support the jury’s finding

that petitioner “was an active participant in a plan

to export Sarin without a legitimate license,” this

was not a case in which “the plan was completely

initiated and operated by the government.” /d. at

20a-21a.

3. The court of appeals summarily affirmed peti-

tioner’s conviction in an unpublished order, rejecting

petitioner’s entrapment and due process claims. Pet.

» App. 4a-5a.

8

ARGUMENT

1. Petitioner first contends (Pet. 7-14) that a gov-

ernment undercover investigation violates the Due

Process Clause if the government does not have a

“reasonable suspicion” for targeting the subject.

This case, however, does not present that issue, since

the record shows that the government had ample

grounds for initiating an investigation of petitioner.

When petitioner telephoned DeArman at CIC In-

ternational, DeArman, a former Customs agent, was

justifiably suspicious of petitioner’s intentions for a

number of reasons. First, petitioner, unlike most

members of the defense industry, was not conversant

with the pertinent nomenclature. Second, petitioner

was requesting, ostensibly on behalf of the Republic

of Korea, a type of anti-personnel ammunition that

was not normally requested by governments. Third,

the Republic of Korea would have been able to obtain

those munitions from its own manufacturers. Fourth,

CIC International did not normally receive domestic

inquiries for that type of munitions. Only when pre-

sented with this information did the Customs Service

contact petitioner and explore his munitions activi-

ties. See C.A. App. 1.63-1.70, 1.78-1.80. Against this

background, the district court properly concluded

that the investigation was not launched without any

predicate or for an improper reason. Pet. App. 19a.

The course of the investigation of petitioner, culmi-

nating in the conspiracy for illegal exportation of

Sarin, confirmed that the government’s initial sus-

picion was well founded.

In any event, the courts of appeals have repeatedly

rejected the due process contention petitioner ad-

vances here. As the Seventh Circuit recently con-

cluded, “‘[t]he Constitution does not require the gov-

EE <<< |

9

ernment to have a preexisting good faith basis for

suspecting criminal activity before initiating an un-

dercover investigation.” United States v. Miller, 891

F.2d 1265, 1269 (1989); accord United States v.

Jacobson, 916 F.2d 467, 469 (8th Cir. 1990) (en

bane); United States v. Jenrette, 744 F.2d 817, 824

& n.13 (D.C. Cir. 1984), cert. denied, 471 U.S. 1099

" (1985); United States v. Jannotti, 673 F.2d 578,

609 (3d Cir. 1981) (en banc), cert. denied, 457 U.S.

1106 (1982); United States v. Myers, 635 F.2d 932,

940-941 (2d Cir.), cert. denied, 449 U.S. 956

(1980). Due process limitations “come into play only

when the Government activity in question violates

some protected right of the defendant.” Hampton v.

United States, 425 U.S. 484, 490 (1976) (plurality

opinion). Yet, as the Eighth Circuit has succinctly

noted, a defendant has “no constitutional right to be

free of investigation.” United States v. Jacobson, 916

F.2d at 469. In other words, where “the conduct of

the investigation itself does not offend due process,

the mere fact that the investigation may have been

commenced without probable cause does not bar the

conviction of those who rise to its bait.” United

States v. Driscoll, 852 F.2d 84, 87 (3d Cir. 1988)

(internal quotation marks and citation omitted).

Petitioner mistakenly relies (Pet. 8-14) on United

States v. Jacobson, 893 F.2d 999 (8th Cir. 1990),

and United States v. Luttrell, 889 F.2d 806 (9th Cir.

1989). The Eighth Circuit, sitting en banc, has re-

versed the panel’s ruling in Jacobson, and thus

‘joinfed] with the courts of appeals that hold the

constitution does not require reasonable suspicion of

wrongdoing before the government can begin an un-

dercover investigation.” 916 F.2d at 469. And the

Ninth Circuit has recently ordered that Luttrell be

reheard by the court en bane. United States v. Lut-

10

trell, 906 F.2d 1384 (1990). Accordingly, even if

this case presented the question whether the govern-

ment must have some measure of suspicion before

targeting an individual for an undercover investiga-

tion, review of that question would be premature in

this case because of the absence of any conflict among

the courts of appeals.

2. Petitioner also argues (Pet. 14-19) that he was

entrapped as a matter of law because the evidence

failed to show that he had the requisite predisposi-

tion to commit the crime. This argument is com-

pletely without merit. As the evidence showed, peti-

tioner had already sent military equipment (parts

for the 20 millimeter “Vulcan” automatic weapon)

to South Korea without a license between June 1986

and December 1988. C.A. Supp. App. 307-348. Al-

though those parts were on the United States Muni-

tions List, petitioner never obtained export licenses

for the shipments. To be sure, petitioner testified that

his conduct over that 18-month period was merely a

mistake, but the jury was entitled to conclude other-

wise, especially given petitioner’s substantial experi-

ence in the munitions industry. Gov’t C.A. Br. 24-25.

Moreover, petitioner admitted to Agent Kennan

that he had helped South Korea circumvent Swedish

laws prohibiting exportation of weapons from Swe-

den to a “conflict country.” Although petitioner

claimed that his conduct was appropriate because the

Swedish Government actually wanted its laws to be

violated, the jury was entitled to reject that explana-

tion and to find that petitioner was predisposed to

engage in illegal exportation. Gov’t C.A. Br. 25.

Furthermore, petitioner admitted to Kennan that he

had investigated the procurement of 400 TUW mis-

siles for Korea to send to Iran. C.A. Supp. App. 284-

285. Because such an exportation would have vio-

11

lated the Arms Export Control Act, petitioner told

Hughes Aircraft and the FBI that the end-user was

Korea, thereby demonstrating his readiness to con-

spire to violate the Arms Export Control Act. C.A.

Gov’t Br. 26.

In addition, well before the negotiations concern-

ing Sarin began in November 1988, petitioner en-

thusiastically embraced Kennan’s proposal to obtain

TOW missiles, and petitioner pursued a plan to obtain

shipment of the missiles, with the ultimate destina-

tion of Iran. Petitioner first mentioned Iran; peti-

tioner told Kennan that the ultimate destination

would be Iran; petitioner suggested that he could ob-

tain a phony end-user certificate; and he proposed

code words to use in discussing the illegal transac-

tions. In sum, the record refutes any suggestion that

petitioner was entrapped as a matter of law. The

district court therefore correctly permitted the jury

to pass on his entrapment defense.

' CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

GEOFFREY R. BRIGHAM

Attorney

DECEMBER 1990

* GU. S. GOVERNMENT PRINTING OFFice, 1990 28206! 20276