Brief for the United States in Opposition — Durham v. United States

Inte Supreme Court the Muted tte

OcTOBER TERM, 1969

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No. 351;

McKINLEY DURHAM AND Lucious PATTERSON, SR.,

PETITIONERS |

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

' UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE,UNITED STATES IN OPPOSITION

OPINION BELOW

_. The opinion of the court of appeals (Pet. App. Al-

A3) is not yet reported.

JURISDICTION 3 eee

The judgment of the court of appeals was entered

on June 17, 1969. The petition for a writ of certio-

R was filed on July 17, 1969. The jurisdiction of

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

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QUESTIONS PRESENTED >

1. Whether the trial court properly denied peti-

tioners’ motion to dismiss for lack of speedy trial.

2. Whether the financial arrangement between -

the government and the informer resulted in entrap- ~

ment so as to require reversal of petitioners’ convic-

tions. es

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"After a jury trial in the United States District

Court for the Middle District of Georgia, petitioners

were convicted of possessing and selling non-tax-paid

liquor, in violation of 26 U.S.C. 5205(a) and 5604

(a). On November 1, 1968, Durham was sentenced

«—torimprisonment for six concurrent terms of one year

and ‘a day; Patterson, for two concurrent terms of

eighteen months. On-appeal, the court of appeals

affirmed per curiam.

The evidence showed that in October 1966; Alcohol

and Tobacco Tax Division agent Robert Griffith en-

~ listed Joe B. Hayes to serve as an informer on fed-

eral liquor law violators in the area of Macon, Geor-

gia (R. 48, 58).’ Griffith agreed to pay Hayes $10

per day for expenses, and a bonus at the end of his

employment if his efforts were successful overall (R.

24, 63). The informer was specifically directed not

to entice individuals ‘into selling him liquor or to

offer to pay more than the going rate (R. 49). Grif-

fith urged Hayes to attempt to make a purchase from

:“R.” refers to the “Transcript of Record” on file with the

Clerk of this Court.

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_ petitioner Patterson, an acquaintance of Hayes. The

agent had reason to believe that Patterson was “the

biggest bootlegger down there” (R. 72). Se |

On November 29, 1886, Hayes met Patterson at ;

the latter’s gasoline station and offered to purchase:

forty gallons of whiskey. Patterson. agreed to make

the sale and told Hayes = the transaction would

take place at an old saw mill (R. 17-18). Prior to

the designated time for the purchase, agent Griffith

removed the back-up light lens from Hayes’ car’in |

erder to enable him ta observe the transaction while

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hiding «in the trunk (R. 49). That evening Hayes,

with Griffith secreted in the trunk, drove Patterson

to the saw mill. There they met co-petitioner Dur-’

ham, who had driven a pick-up truck containing the

illicit liquor (R. 18, 49-50). Hayes paid Patterson ©

$200 in funds furnished by the agent, and received _

eight five-gallon jugs containing moonshine whiskey

on which-the prescribed taxes had not been paid (R.

18, 51-52). Patterson told Hayes to return the empty

jugs (R. 23): Additional 20-gallon purchases were

‘made on December 8 and 15,1966, each time ob-

served by an agent located in the trunk of the car

driven by Hayes (R. 19-21, 52-54). At the end of

- his employment, which involved informing on more

than twenty violators, Hayes received a bonus of _

$400 (R. 25, 74). 3

ARGUMENT

1. The courts below correctly- held that petitioners

were not entitled to a dismissal of their case for lack

of a speedy trial. They were arrested on January 17,

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1967-(R. 71), and indicted onJuly 25, 1967. Trial

occurred on October 21, 1968. Most of the pre-trial:

' delay was occasioned by the disappearance of the

informer, Hayes, for a period of nine months. When

located in Centre, Alabama, Hayes was immediately

returned to the Middle District of Georgia. There

was no question of any dilatory action by the gov-

ernment. See Pollard v. United States, 352 U.S. 354,

361. Nor did petitioners suffer any prejudice from

the delay. They were not incarcerated during this

- time, and they ‘made no showing whatever that evi-

dence had disappeared or witnesses had become un-

available. In light ofethese circumstances, petition-

ers’ speedy trial claim is without merit. United

States v. Ewell, 383 U.S,°116, 120-123; Smith v.

United States, 360 U.S. 1, 10; Beavers v. Haubert,

198 U.S. 77, 87; see also Harrison v. United States,

392 U.S.?219, 221, n. 4; Hedgepeth v. United States,

865 F. 2d 952,954 (C.A:D:C:).

2. The evidence failed ‘to-establish unlawful en-

trapment, in view of the clear showing that petition-

ers demonstrated no reluctance whatsoever to sell

illicit liquor to the informer. Petitioners urge this

Court to strike down their convictions because of the .

terms of the financial arrangement between the in-

former and the government agents. In support of

their position they cite Williamson v. United States,

311 F. 2d 441 (C.A. 5), where the court of appeals’

: 2In their pretrial motion to dismiss the indictment, peti-

tioners’ only reference to prejudice was a claim that they had

been kept from “various endeavors” for “no Jess than eight.

days.” (R. 6).

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reversed a conviction because payments of specific

sums of money were promised to an informer if he

would “catch” two particular suspects. The Fifth

Circuit and other courts of appeals as well have dis-

tinguished Williamson and upheld convictions where’

the informant is paid, not a specific sum for the con-

viction of a specific individual, but a per diem amount —

and an unspecified bonus depending upon thé success

of his entire efforts (all of which is paid before any

convictions). Henley v. United States, 406 F: 2d 705

(C.A. 5); Harris v. United States, 400 F.2d 264

(C.A. 5); Moore v. United States, 399 F. 2d 318

_(C.A. 5), certioggri-denied, 393°U.S. 1098; Bullock —

v. United States, 383 F. 2d 545 (C.A. 5); United

States v. Costner, 369 F. 2d 959, 973 (C.A. 6), United ©

- States v. Baxter, 342 F. 2d 773 (C.A. 6), certiorari

denied, 381 U.S. 934; Maestas v. United States, 341

F. 2d 493 (C.A. 10); United States v. Crim, 340 F.

2d 989 (C.A, 4). There is thus no occasion for fur-

ther review of this issue. |

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CONCLUSION

_ For the reasons stated, it is respectfully gubmitted

that the petition. for a writ of certiorari should be‘

denied.

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‘

ERWIN N. GRISWOLD,

Solicitor General.

WILL WILSON,

Assistant- Attorney General.

MERVYN HAMBURG,

; Attorneys,

AucusT 1969. -/ $

WW UV. S. GOVERNMENT PRINTING OFFICE; 1969 360665 114

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