Petition for Writ of Certiorari — Price v. United States

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Supreme Osuh, U.S.

FILED

95 1579 APR - 1 199%

— Biber int CLENK

No.

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

JOHN G, PRICE AND

DAVID G, PRICE,

PETITIONERS,

THE UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STEPHEN R. GLASSROTH

COUNSEL OF RECORD

FOR JOHN G. PRICE

GLASSROTH & ASSOCIATES, P.C.

615 SOUTH MCDONOUGH ST.

POST OFFICE BOX 910

MONTGOMERY, AL 36101-0910

334/263-9900

JEFFERY C, DUFFEY

COUNSEL OF RECORD

FOR DAVID G. PRICE

600 SOUTH MCDONOUGH ST.

MONTGOMERY, AL 36104

334/834-4100

QUESTIONS PRESENTED

1. Whether the decision of the Court of Appeals is in

conflict with Jacobson v. United States, 503 U.S. 540

(1992), by the court below holding that predisposition is

proved with a showing that one is ready and willing to

commit an offense after government contact in a federal

prosecution where entrapment is a defense and government

inducement is shown and whether there is confusion among

the circuits with respect to proving predisposition by merely

showing a general disposition, prior to any government

contact, to commit an offense different from that charged.

2. Whether a federal court’s procedure and manner of

conducting a post verdict jury investigation regarding juror

misconduct and bias and its finding of no prejudice conflicts

directly or in principle with Smith v. Phillips, 455 U.S. 209

(1982), Remmer v. United States, 347 U.S.227 (1954) and

United States v. Wood, 299 U.S. 123 (1936), thereby

violating petitioners’ rights to due process, to a fair and

impartial jury and to the effective assistance of counsel.

3. Where a federal court admits the Attorney General’s

Guidelines on FBI Undercover Operations during cross

examination in a case where entrapment is the defense and

those Guidelines are relevant to the issues of inducement and

predisposition and at the government’s untimely request,

after the close of all evidence, orders them removed from

evidence and prohibits any argument about them is an

important question of federal law that has not been, but

should be, settled by the court.

4. Where there is a conflict among the Courts of Appeal of

various circuits regarding whether a prospective cost of

incarceration fine levied pursuant to U.S.S.G. §5E1.2(i) in

addition to an imposed punitive fine is excessive under the

Eighth Amendment or violative of the right to due process

under the Fifth Amendment, or not rationally related to the

purposes of the Sentencing Reform Act, this Court should

resolve this conflict that is expected to cause continuing

confusion.

5. Whether the district court’s failure to recuse itself in the

face of purported threats allegedly made by one of the

petitioners and disclosed to the parties on the eve of

sentencing is in conflict, either directly or in principle, with

Liteky v. United States, _ US. __, 114 S.Ct. 1147

(1994).

ill

LIST OF PARTIES

All parties appear in the caption of the

case on the cover page.

TABLE OF CONTENTS

PAGE

OPINIONS BELOW 1

JURISDICTION 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS 1

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE PETITION 6

CONCLUSION 30

INDEX TO APPENDICES

APPENDIX A la

Opinion of the U.S. District Court,

Middle District of Alabama 2a

APPENDIX B 23a

Opinion of the United States Court

of Appeals for the Eleventh Circuit 24a

APPENDIX C 43a

Order of the United States Court of

Appeals for the Eleventh Circuit on

Application for Rehearing 44a

APPENDIX D

Order of the United States Court of

Appeals for the Eleventh Circuit on

Recall of the Mandate

APPENDIX E

Fifth Amendment, U.S. Constitution

APPENDIX F

Sixth Amendment, U.S. Constitution

APPENDIX G

Eighth Amendment, U.S. Constitution

APPENDIX H

Local Rule 9 of the United States

District Court for the Middle District

of Alabama

APPENDIX I

U.S.S.G. § 5K1.2(1)

APPENDIX J

18 U.S.C. §3553

PAGE

46a

47a

APPENDIX K

18 U.S.C. §3572

APPENDIX L

28 U.S.C. §994(a)and (y)

APPENDIX M

Excerpts from Entrapment Jury

Instructions

Vii

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

Fifth Amendment..................... 1, 7, 19, 20, 27, 28, 29

oe acu ds ieacctebttienadeawwes 1,2, 26

irs da svncneesussnccdnis¢abasuaves a4, ae

STATUTES AND RULES

IR Lins ie oc nd nn vocsidncaantaxhyiwweundddcacctael 6

al sepa canensekadkeaeceeend 6

a re. ro Felis an ccduhen dsGataa deans dceuce 6

eae On ududubdabd sdubuieoucaunt 2

eee ee oc vesdasascdccaheseunns 2

I oo «0, ce otnehous sc cans dens bdicccncteseees 27

eo ca cca iuh baksanwaneberneracecsaxséned 2, 28

REE leer tie) oe a a ny ey eee 30

Ne Pee sc ccn en unboncuedecawsccestcas 30

As 20 noc culihinnancdavibwdabnadases isabani 2,28

ics vai cn cannsnadcnndéeshancsenee cieuiaaas l

ee a ss ce aawkanhvubeakeeeess ii, 27,28

Re ein cks coacncennuesdanssdaavavcdancnoeadecs 4

I i og 2s 2 NG abu ous cus ih ebeedsaesssn) 2

no ca cao awtlcbh cusgunadiienkewenwececa 19

eae each os UES. suciagdenshekvnsd 4

CASES

Davis v. Alaska, 415 U.S. 308 (1974)......... 0.0... cece cece. 27

Delaware v. Van Arsdall, 475 U.S. 673 (1986).............. 18

Viii

Dennis v. United States, 339 U.S. 162 (1950)............... 18

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

In Re: Murchison, 349 U.S. 133 (1955).................00000- 19

frvuia v. Dowd, 366 U.S. 717 CSG) «onc cccccacsiscsideicia 19

Jacobson v. United States, 503 U.S. 540

EE odkkc souckskvobacusticnctiowensicnee i, 74 8, 2, 40.

ii, te i

25, 26

Liteky v. United States, U.S. _, 114

ee a ci nn nncciccscarwivendanbie kacccesves ii, 30

Mathews v. United States, 485 U.S. 58 (1988)................. 7

Pears Vi. BA FST US a GT Bw vicisdecedcdinessssvece 19, 20

Remmer v. United States, 347 U.S. 227 (1954)............ i, 22

Sherman v. United States, 356 U.S. 369 (1958)............... 7

Sorrells v. United States, 287 U.S. 435 (1932)................. 7

Smith v. Phillips, 455 U.S. 209 (1982)................. i, 17,18

United States v. Aibejeris, 28 F.3d 97 (11th

aes. Pi ucdnces es yO uRibA ead Gdebainakaecetcanneekans 8

United States v. Brown, 539 F.2d 467 (Sth Cir.

United States v. Brown, __ U.S. __, 43 F.3d

618 (11th Cir.), cert. denied, 116 S.Ct.

ark vce Sac tian sbaateuducksssscsves: . i24, 3

United States v. Carrozza, 4 F.3d 70 (ist Cir.

1993), cert. denied, 114 St.Ct. 1644.............00.... 29

United States v. Evans, 910 F.2d 790 (11th Cir.

United States v. Gendron, 18 F.3d 955 (1st. Cir.),

cert. denied, 115S.Ct. 654(1994)......00. 0... 11

United States v. Gifford, 17 F.3d 462 (1st Cir.

United States v. Hagmann, 950 F.2d 175 (Sth Cir.

1991), cert. denied, 506 U.S. 982 (1992)........ 28, 29

United States v. Hollingsworth, 27 F.3d 1196

APNE 9s ia coadsiiiseticcwnceedecahicss: 9,10,11

United States v. LaRizza, 72 F.3d 775 (9th Cir.

United States v. Leonard, 37 F.3d 32 (2d Cir. 1994)....... 29

United States v. May, 52 F.3d 885 (10th Cir. 1995)........ 29

United States v. Mkhsian, 5 F.3d 1306 (9th Cir. 1993)..... 13

United States v. Miller, 71 F.3d 813 (11th Cir. 1996)...9.

United States v. Price, 65 F.3d 903 (11th Cir.

1995)... | peeesstoccecesig ae

United States v. Rattenni, 480 F.2d 195 (2d Cir

aa Raa eet ee el

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

United States v. Spiropoulos, 976 F.2d 155 (3d

Cir. 1992) , __ ee

United States v. Turner, 998 F.2d 534 (7th Cir.).

cert. denied, 114S8.Ct. 639(1993)..

United States v. Wood, 299 U.S. 123 (1936).. i,

OTHER AUTHORITIES

U.S. District Court Local Rule 9 2,

»9

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment below.

OPINIONS BELOW

The U.S. District Court, Middle District of Alabama.

by unpublished opinion, denied petitioners’ motion for new

trial (Appendix A). The opinion of the U.S. Court of

Appeals appears at Appendix B to the petition and is

reported at 65 F.3d 903 (11th Cir. 1995).

JURISDICTION

The judgment of the Court of Appeals was entered on

September 29, 1995. A timely petition for rehearing was

denied on January 3, 1996, and appears at Appendix C. The

court of appeals on January 30, 1996, entered an order of

recall and stay of the mandate pending petition for writ of

certiorari (Appendix D). This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Fifth Amendment, United States Constitution

(Appendix E), Sixth Amendment, United States Constitution

(Appendix F), Eighth Amendment, United States

Constitution (Appendix G), Local Rule 9 of the United States

District Court for the Middle District of Alabama, (Appendix

H), U.S.S.G. § 5K1.2(i) (Appendix I, 18 U.S.C. § 3553

(Appendix J), 18 U.S.C. § 3572 (Appendix K), 28 U.S.C.

§ 994(y) (Appendix L).

STATEMENT OF THE CASE

Petitioners John and David Price, (ages 63 and 41

respectfully at the time of arrest), are father and son. John

Price was president of Price Rubber Corporation

headquartered in Montgomery, Alabama. David was an

employee and ran the Arlington, Texas operation. Prior to

this offense neither had ever been involved in any criminal

offense.

This case arose out of a government sting operation

orchestrated by a large scale drug smuggler turned

government operative who was facing the possibility of life

in prison. The operative was Bobby Price, Jr., who is no

relation to the petitioners but was acquainted with them

because he was a former employee.

On July 8, 1991, Bobby Price, Jr., was arrested and

subsequently indicted in the Middle District of Alabama for

a drug distribution conspiracy. Five days later he became a

government agent by entering into a cooperation agreement

in order to reduce his sentencing exposure and to be released

on bail, after first being detained pursuant to 18 U.S.C.

§3142(e).

The government agent provided over 100 names to

investigators for possible drug prosecution before targeting

defendants John and David Price. The informant had prior

knowledge of the personalities of the petitioners and of the

legal problems and other events they had experienced.

There were numerous instances of the government agent's

attempts to persuade or pressure petitioners to commit the

charged offense. United States v. Price, 65 F.3d 903, 908

(11th Cir. 1995).

After becoming a government agent, Bobby Price, Jr.

was strapped for funds to pay his lawyers. He deceptively

prevailed upon John Price to contribute to his legal defense

but the informant converted most of the funds to his personal

use instead, thus obtaining money by false pretenses.

Following his release from detention and the

commencement of his service as a government agent, the

operative had several meetings with petitioners. The first

recorded meeting with John Price was on audio tape and did

not occur until August 21, 1992, and the first recorded

meeting with David Price occurred on September 16, 1992.

During the August 21 meeting John Price consistently

disavowed interest in having anyone killed. That disavowal

persisted despite the informant’s urging for him to go along

with killings. The government agent told John Price, "there

are people that don’t deserve to live and these [purported

victims] are two that don’t." The operative further pushed

John Price to adopt his plan by telling him that he [the

informant] would have "a hard time sleeping at night

knowing that there was some son of a bitch out walkin’(sic)

around that had caused..." him aggravation. Immediately

prior to the September 16, 1992, meeting with David Price

and the undercover FBI agents, the operative frightened

David Price by instructing him not to talk to the “hit men"

agents about anything less than terminal (murder) or David

Price would be harmed.

Unbeknownst to the government, Bobby Price, Jr.

kept a diary of most of his activities as an agent. The diary

was presented by Bobby Price, Jr. to his sentencing judge as

a truthful compendium of the time spent and activities in

which he engaged as a government agent to expand upon the

government’s motion for downward departure under

U.S.S.G. §5Ki.1. | In that diary he stated that his

l While Bobby Price, Jr. presented his diary to Judge Truman

Hobbs for the court to rely upon as truthful at his sentencing, by the time

of petitioners’ trial the diary became a “pack of lies" explained as

emotional ramblings. The operative never informed Judge Hobbs that the

diary he submitted was perjured testinony. He also admitted to telling a

great many lies throughout his and these proceedings. Nevertheless, he

received the benefits of the government’s §5K1.1 motion and a

Fed.R.Crim.P. 35(b) motion made by the government after petitioners’

trial was concluded. Unfortunately, how fruitful the 35(b) motion was

for the government’s agent is unknown, for it was placed under seal.

The operative’s attitude toward the truth is best described in his

own words: "I guess the -- in one sense you can look at it and it is a lie

because it is not a truth..." and that when he tells lies, he tells them for

"[nJo particular reason."

government handlers were upset with the results of his

August 21 meeting with John Price because he had not

gotten John Price to say that he wanted murder for hire. The

operative’s attorney kept notes regarding his conversations

with his client and testified that Bobby Price, Jr. told counsel

that his handlers informed him that "hire for hurt" was not

a federal crime and was not "good enough", thus

corroborating the informant’s diary entry. There were also

diary entries made by the informant stating that his handlers

believed he may have been entrapping people.

The September 16, 1992, meeting involved the

government operative, the undercover agents and David G.

Price, to whom the agents were introduced by the informant.

During a wide ranging discussion the undercover agents

informed David Price that people could be killed for a

certain price. David Price was intoxicated during that

conversation and later, in a conversation held only between

David Price and the operative, it was shown that the meeting

with the agents had been preceded by directions from the

informant about what to say to the agents, i.e., don’t talk

about anything less than murder. After a November 4,

1992, meeting with the undercover agents, David Price

remained uninvolved until contacted by telephone by one of

the agents in the middle of January, 1993.

On November 10, 1992, John Price met with the

undercover agents and potential "victims" were discussed.

Over the next few months there were telephone

conversations between the agents and John Price, personal

conversations and letters sent by John Price to the agents.

On January 27, 1993, John Price again met with the

undercover agents. He was shown a photograph of a

purportedly dead victim with what appeared to be a bullet

hole in his head, however, this was staged and no death ever

occurred. Money was given to one agent and John Price

was then arrested. David Price was arrested later that day

in Texas.

On June 22, 1993, a jury was unable to reach a

verdict and a mistrial was declared. On retrial, petitioners

were convicted of conspiracy to commit murder, in violation

of 18 U.S.C. § 371, and for the use of interstate commerce

facilities with the intent to commit murder-for-hire, in

violation of 18 U.S.C. § 1958. John Price was also

convicted of solicitation, to commit a crime of violence in

violation of 18 U.S.C. § 373, while David Price was

separately convicted for using interstate commerce facilities

with the intent to commit murder-for-hire in violation of 18

U.S.C. § 1958.

REASONS FOR GRANTING THE PETITION

This case presents several related and important

issues for the Court. First, the reasoning of the court of

appeals conflicts with applicable decisions of this Court on

the issue of predisposition as an element of entrapment as to

which the courts of appeals are also in conflict. Second, the

court of appeals failed to fully consider petitioner’s claims of

jury misconduct and of trial court error which deprived them

of due process and a fair trial. The court’s failure to apply

the relevant decisions of this Court warrants the exercise of

the supervisory powers of this Court. Finally, the

imposition of a “cost of incarceration” fine on petitioners

presents an important question of the constitutionality of such

fines under the Fifth Amendment guarantee of due process

and the Eighth Amendment prohibition against excessive

fines. The courts of appeals are in conflict as to this

question, as well.

1. Entrapment

This Court has consistently adhered to the view that

"a valid entrapment defense has two related elements:

government inducement of the crime, and a lack of

predisposition on the part of the defendant to engage in the

criminal conduct." Mathews v. United States, 485 U.S. 58,

62-63 (1988) (citing Sorrells v. United States, 287 U.S. 435

(1932); Sherman v. United States, 356 U.S. 369 (1958);

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

United States, 425 U.S. 484 (1976)). This Court’s most

recent consideration of the entrapment defense focused on

the second element of “predisposition”. Jacobson v. United

States, 503 U.S. 540 (1992). In Jacobson, this Court

reiterated that a defendant’s “ready response to

[governmental] solicitations cannot be enough to establish

beyond reasonable doubt that he was predisposed, prior to

the Government acts intended to create predisposition, to

commit the crime.” Jd. at 553.

Since Jacobson, however, there has been continuing

misunderstanding and conflict among the lower courts as to

predisposition. There is conflict among the courts of appeals

as to the standard or criteria for determining predisposition.

This conflict has led to confusion about the temporal nature

of the inquiry—whether evidence of commission of the crime

after governmental inducement is sufficient to show that

disposition to commit the crime existed prior to

governmental contact. There is also some conflict as to

whether a defendant’s predisposition must be to commit the

offense for which he is charged, or if it is sufficient to have

only a general criminal disposition.

This case clearly illustrates the conflict that has

developed among the courts of appeals and_ the

misapplication of the standard articulated by this Court in

Jacobson. In this case, the court of appeals conceded that

government inducement was not an issue. United States v.

Price, 65 F.3d 903, 908 (11th Cir. 1995). Instead, the

question was petitioner’s predisposition. Jd. The court

noted that: "To show predisposition, the government must

prove beyond a reasonable doubt that ‘the defendant was

actually predisposed to commit the underlying crime absent

the government’s role in assisting such commission.’" /d. at

908 (quoting United States v. Aibejeris, 28 F.3d 97, 99 (11th

Cir. 1994) (citing Jacobson, 503 U.S. at 547-49))(emphasis

in original). The court concluded that, despite statements

made by petitioner John Price and his co-petitioner that

“suggest hesitation to go as far as murder,” a reasonable

jury could conclude that petitioner was predisposed based on

his “readiness and willingness to have their perceived

enemies maimed or killed.” Jd.

The Eleventh Circuit has similarly construed the fact

that a defendant was “ready and willing” to commit a crime

as the equivalent of “predisposition” in other cases, as well.

In United States v. Brown, 43 F.3d 618 (11th Cir.), cert.

denied, __—iU.S. __, 116 S. Ct. 309 (1995), the court

noted “the continued strength of an approach focused on the

defendant’s readiness and willingness to commit the charged

crime” after Jacobson. Id. at 624. In Brown, the court

found that regardless of the defendant’s ability to engage in

criminal acts absent governmental involvement, the prompt

commission of the crime at the first opportunity is enough to

show predisposition. Jd.; see also United States v. Miller,

71 F.3d 813, 816 (11th Cir. 1996) (citing Brown with

approval).

At least one other circuit has squarely disagreed. The

United States Court of Appeals for the Seventh Circuit has

reasoned that the trend of some courts of appeals toward

finding predisposition whenever the defendant is “‘willing,’

in the sense of being psychologically prepared, to commit

the crime” cannot be squared with this Court’s decision in

Jacobson. United States v. Hollingsworth, 27 F.3d 1196,

1198 (7th Cir. 1994)(en banc). The court in Hollingsworth

noted that Jacobson had not added a new element, but rather

clarified the meaning of predisposition. Jd. at 1199-1200.

As Chief Judge Posner explained for the Hollingsworth

court:

Predisposition is not a purely mental state, the

State of being willing to swallow the

government’s bait. It has positional as well

as dispositional force. . . . The defendant

must be so situated by reason of previous

training or experience or occupation or

acquaintances that it is likely that if the

government had not induced him to commit

the crime some criminal would have done so.

Id. at 1200.

The confusion among some courts appears to stem,

in part, from the language in Jacobson describing the

differing considerations for one who participates in a more

traditional government “sting” operation, as opposed to one

who is induced by the government:

[A]n agent deployed to stop the traffic in

illegal drugs may offer the opportunity to buy

or sell drugs and, if the offer is accepted,

make an arrest on the spot or later. In such

a typical case, or in a more elaborate “sting”

operation involving government-sponsored

fencing where the defendant is simply

provided with the opportunity to commit a

crime, the entrapment defense is of little use

because the ready commission of the criminal

act amply demonstrates the defendant’s

predisposition.

Jacobson, 503 U.S. at 549-50. Although this Court

distinguishes the case of a defendant who has been induced

from one who simply avails himself of the opportunity

provided by the government, some courts of appeals have

improperly held the former to the standard of the latter.

This Court confirmed in Jacobson that in the case of

inducement, the burden is then on the government to show

predisposition “prior to first being approached by

Government agents.” Jd. at 549.

Some courts, however, have instead used the “ready

commission” criteria to find predisposition, rather than

limiting that to cases where there has not been government

inducement. See, e.g., United States v. LaRizza, 72 F.3d

775, 778 (9th Cir. 1995) (predisposition means the defendant

is “ready and willing” to commit the crime); United States

v. Gifford, 17 F.3d 462, 469 (1st Cir. 1994) (ready

commission of the crime and "demonstrated readiness to

commit a potential crime can suffice to prove

predisposition"); but see United States v. Gendron, 18 F.3d

955, 963 (1st Cir.) (question should be how defendant would

have reacted to an ordinary opportunity to commit the crime,

rather than “concluding automatically, simply from the fact

that the defendant committed the crime, that he was

‘predisposed’ to commit it”), cert. denied, _U.S.__, 115

S. Ct. 654 (1994); Cf Hollingsworth, 37 F.3d at 1200 (for

traditional targets of stings, “willingness to violate the law

without extraordinary inducements” shows predisposition;

standard is different when “defendant is not in position

without the government’s help to become involved in illegal

activity”).

This misapplication of the Jacobson holding also

results in conflict among the courts regarding the appropriate

time frame for determining predisposition. In Jacobson, this

Court again emphasized that the relevant inquiry is the

defendant’s predisposition “prior to first being approached by

Government agents.” 503 U.S. at 549. While relevant

evidence of predisposition may include the defendant’s

conduct both prior to and after contact with the government,

it must be clear that the defendant’s disposition to commit the

crime was present before the contact. /d. at 553.

In petitioners’ case, the court of appeals did not

discuss in any detail the timing aspect of the determination of

petitioners’ predisposition. There is no evidence of any

action or statements by petitioner, John Price, prior to his

first meeting with the government’s agent, and the evidence

after that contact shows that he did not initially want to “go

as far as murder.” Price, 65 F.3d at 908. It was only after

inducement by the government’s agent that John Price

showed a disposition to commit the crime charged. By

ignoring this distinction and focusing only on whether John

Price was “ready and willing” to commit the crime, the court

misapplied this Court’s holding in Jacobson. In fact, the

Eleventh Circuit has repeatedly held, both before and after

Jacobson, that the government “need not produce evidence of

predisposition prior to its investigation,” Brown, 43 F.3d at

625 (citations omitted), and that predisposition may be

demonstrated by the ready commission of the crime alone,

Miller, 71 F.3d at 816. Other circuits have demonstrated

similar confusion. See, e.g., Gifford, 17 F.3d at 469 (the

critical time is in advance of the government’s initial

intervention, but a demonstrated willingness to commit the

potential crime may be sufficient).

Finally, the “ready and willing” standard improperly

overlooks yet another important element of predisposition

articulated in Jacobson— that the defendant must be

predisposed to commit the crime charged. See Jacobson, 503

U.S. at 553 (ready response of petitioner does not establish

that he was predisposed to commit the crime with which he

was charged, receiving child pornography through the mails).

In this case, the court specifically noted that petitioner were

“reluctant” and “hesitant” to commit the crime with which

they were charged— murder for hire—even after contact with

the government’s agent. Although John Price may have been

more willing to contemplate a lesser crime, this does not

equate to a predisposition to commit the crime with which he

was charged. Again, the fact that he did commit the crime

after government inducement is insufficient to establish

predisposition under Jacobson. Id. 23

2 Even the Brown court recognized that the Eleventh Circuit pattern

jury instruction on entrapment could be misleading to a jury and noted

that other circuits have clarified their entrapment jury instructions in light

of Jacobson. 43 F.3d 628, n.8.

3 The court below affirmed the jury instruction given in this case

which did not charge the jury to gauge petitioners’ disposition as it

existed prior to on otherwise law abiding citizen first being approached

by government agents. See United States v. Mkhsian, 5 F.3d 1306

Because the court of appeals misapplied the standard

for predisposition as articulated by this Court in Jacobson,

and because of the conflict among the other courts of appeals

about the proper application of the Jacobson standard, this

Court should grant Petitioner's request for certiorari on this

question.

2. Jury Misconduct and Bias

Following their convictions petitioners moved for a

new trial and sought relief from Local Rule 9 (Appendix H)

in order to conduct interviews with jurors. The motion for

permission to interview jurors was supported by affidavits of

individuals who set forth colorable claims of juror

misconduct.4 The court denied petitioners’ request to

interview the jurors. Juror examination was conducted by

the court, even though counsel had requested leave to

3 (cont'd) (9th Cir. 1993) (post Jacobson instruction on entrapment must

clearly inform jury that disposition must be measured prior to defendant's

encounter with government agents). The trial court also failed to clearly

inform the jury that petitioners’ ability to engage in the charged activity

must be proved beyond a reasonable doubt and be separate and

independent of government intervention. Appendix M (excerpts from

court's entrapment charge). That instruction is required in order to

protect “an otherwise law-abiding citizen who, if left to his own devices,

likely would never have run afoul of the law...." 503 U.S. at 553-554.

4 The petitioners’ motions to interview the jurors alleged that a juror

from the first trial had spoken to the second trial jurors while the jurors

were hearing the case. In addition, petitioners made allegations,

supported by affidavits to the defense and FBI, that one juror remarked

to his employer he had prejudged the case.

examine each juror.> As the only means of participating,

the defense was required to write out any questions prompted

by witness responses during the court’s examination of the

jurors. Those questions were required to be handed to the

court for its determination of whether the proffered questions

would be asked and many of them were not posed. This

procedure was the extent of petitioners’ participation in the

individual examination of the former jurors, except counsel

were allowed to question one witness, a spouse of a former

juror.

Juror number 10 admitted that his supervisor did

question him about the length of his jury service, but denied

that he told the supervisor he and the other jurors had

prejudged the case. | Compromising the potential for this

juror’s candor, the prosecutor inferred in the presence of

juror number 10 that there may be a “potential prejudice" to

the juror regarding his testimony. A sidebar conference was

then held where potential contempt charges were discussed.

Adding to feelings of uneasiness, the court let it be known

to the jurors that the defendants had requested this hearing

and that the press was present in the courtroom. There was

testimony from former jurors that should have been of great

5 The court's juror interrogation was to be conducted in camera,

however, when the time for the examinaiions arrived the court permitted

members of the press to be present throughout the examination.

Petitioners’ objection and motion to allow members of the public to be

present in light of the ability of the press to attend was denied.

concern to the court.©

Juror number 4 was called for her examination and

from the start candidly admitted that she had not followed

the court’s admonition, given repeatedly during the course of

the trial, not to discuss the case with anyone. She disclosed

that she talked about the case with her husband, telling him

that she "was shocked at what [she] heard in the case, very

shocked" She also told her husband that the petitioners "are

really mean."

Juror number 4 also revealed that she had made up

her mind about the guilt of petitioners before the close of

evidence and the court’s charge. The court’s method of

6 Juror number | testified that during the trial she told her husband

she was “a little bit afraid" because there were “some thug-looking

people out in the audience." Her husband told her they worked for

defendants and were not thugs and she no longer felt threatened, but she

testified that she “always had a little eerie feeling, to be honest."

Juror number 2 revealed that she “tried” to keep an open mind,

but counsel was not allowed to adequately pursue the matter.

Juror number 15, who sat on the mistrial jury, had unexplained

contact with the prosecutors after both trials:

"Mr. Teschner apprized [sic] me of

the fact that I would be subpoenaed

so that it would not take me by

surprise."

"I spoke to the two prosecuting

attorneys ...after the first trial and

after the second trial."

questioning caused the juror to back away from the certainty

of her disclosure. The defense objected to the court's

method and again sought leave to directly question the

former juror. That leave too was denied.

Another troubling revelation was made by juror

number 4 during her examination and that concerned contact

by that juror with the FBI case agent and main witness. She

disclosed that she approached that witness to tell him how

brave she thought he had been. This contact between the

government case agent and the juror was neither brought to

the court’s attention nor to the petitioners’ attention, despite

the great care and caution taken by the court to ensure that

no contact between jurors and others occurred.

That the potential for juror contact was a concern at

trial is an understatement. Once the juror’s contact with the

FBI agent, the chief government witness, came to light

petitioners moved to have the agent appear and testify. The

district court denied the motion to require the agent's

appearance and testimony. By refusing that request, the

court, as it did with its questioning of the misbehaving juror,

again abdicated its responsibility to conduct a full and fair

inquiry into misconduct which strikes at the core of the jury

system.

When possible juror partiality is shown, a hearing

should provide a defendant with "the opportunity to prove

actual bias ... in a hearing with all interested parties

permitted to participate." Smith v. Phillips, 455 U.S. 209,

215 (1982). The defendant should be "’free to show the

existence of actual bias’", id., quoting Dennis v, United

States, 339 U.S. 162, 167 (1950), because "’the opportunity

to prove actual bias is a guarantee of a defendant’s right to

an impartial jury.’"/d. Impartiality is a state of mind and a

full inquiry as to the actual bias of a juror should be

permitted. See United States v. Wood, 299 U.S. 123, 145

(1936). Similarly, in Delaware v. Van Arsdall, 475 U.S.

673, 680 (1986), the Court found a violation of the

confrontation clause where one was prohibited from

engaging in otherwise appropriate cross examination

designed to show a prototypical form of bias.

To make matters even worse, petitioners were bound

and shackled in full view of the former jurors and the

intimidating atmosphere of the great number of marshals

present for "security" purposes added to an air of fear. This

was even more palpable when each juror, at the close of his

questioning, was told he could be escorted to their vehicle

individually by U.S. Deputy Marshals. The presence of the

press transformed the "in camera" proceeding into a public

spectacle which discouraged witness forthrightness.

Instead of endeavoring to learn the full extent of the

misconduct, the trial court’s actions appeared to have

frustrated the search for truth. This is amply shown by the

court not permitting the defense to develop the misconduct

by cross examination.

Indeed, the right to trial by a jury able to decide a

case free from bias and prejudice, based solely on the

evidence is a cornerstone of our system of justice. See,

e.g., Irvin v. Dowd, 366 U.S. 717 (1961). The Fifth

Amendment’s due process clause is also implicated by the

actions and behavior of juror 4 since"[A] fair trial in a fair

tribunal is a basic requirement of due process." Jn Re

Murchison, 349 U.S. 133, 136 (1955). As the Court

declared, "fairness of course requires an absence of actual

bias in the trial of cases. But our system of law has always

endeavored to prevent even the probability of unfairness."

Id.

The district court conducted an inquiry and learned

that a juror that served was biased and had ceased being

impartial. That disclosure was made after the trial was

concluded, at a time when the court could not cure the

problem. Had the information been revealed during the

trial, the court could have engaged in a variety of remedial

measures, from strong admonitions to replacement of the

offending juror with an alternate under Fed.R.Crim.P. 24(c).

Since the information about the juror did not surface until

after the trial, the court was unable to employ any remedial

devices to rectify the fair trial violation. "Even if there is no

showing of actual bias in the tribunal... due process is

denied by circumstances that create the likelihood or the

appearance of bias." Peters v. Kiff, 407 U.S. 493, 502

(1972). Here, actual bias by juror 4 was shown.

It is clear from the record that the government was

aware of the contact between the agent and juror 4 before

the hearing on September 16. It is equally clear that the

prosecutor never brought the information about the contact

to the defense or the court. What is abundantly clear is that

the government prosecutors had no intention of disclosing the

contact and would have been content had the information

about it never surfaced. Such action demeans the office of

the United States Attorney and subverts the role of the

prosecutor.

When information which may cast doubt upon the

impartiality of a juror is known by the prosecution, that

information must be disclosed to the court for such

information goes directly to a defendant’s due process right

to a fair trial, Peters v. Kiff, 407 U.S. at 501, thus

implicating "the critical importance of protecting the

integrity of the trial process." United States v. Rattenni, 480

F.2d 195, 198 (2d Cir. 1973) (Clark, J. sitting by

designation). It is of no moment to contend that the

prosecutor did not purportedly learn of the contact until after

the trial. The contact occurred during the trial and involved

the former juror and the lead prosecution witness, a veteran

of twenty plus years of FBI service. The possession of the

information concerning the contact is chargeable to the

government. As the former Fifth Circuit has noted, "this

court has declined to draw a distinction between different

agencies under the same government, focusing instead upon

the ’prosecution team’ which includes both investigative and

prosecutorial personnel." United States v. Antone, 603 F.2d

566, 569 (Sth Cir. 1979).

The defense in this case was entrapment. Acceptance

of the defense theory depended upon credibility

determinations that discounted the government’s evidence.

The presence of a juror who admired the chief government

witness and who felt so strongly about that to actually make

contact with him rendered futile any effort to successfully

attack the government’s case. As so observed by defense

counsel Bobby Lee Cook:

Mr. Cook: ...I can state to this Court with

absolute credibility that had I known of that,

that a member of this jury had approached an

FBI agent involved with this case and had told

him during the progress of the trial how much

she admired him, that I would have moved

the Court to remove that juror from the panel

and to have placed an alternate in his or her

place...

* * *& *

Mr. Cook: ...I didn’t come into town on a

turnip truck, and I _ pardon the

characterization...or...I didn’t fall off the

back end of a watermelon truck...What that’s

saying to me, if a juror came up to me during

the trial of the case or came up to Mr. Price

during the trial of the case and said I just

want to tell you, Mr. Cook, how much |

admire you, or I want to tell you, Mr. Price,

how much I admire you, that’s telling me

something. And I think that had that

happened to me...[ would have had an

obligation, if I understand my _ ethical

obligations correctly, to have apprized (sic)

the Court of that situation.

* * *

The Court: I take it that your position is that

the remarks made by the young lady,

whatever they were, were endearing remarks

that endorsed the Government’s case.

Mr. Cook: Indeed so, and that approves of

the - - that approves and sanctions this

witness, if it’s Mr. Johnson, and that’s whom

I thought that it probably was, and she is

congratulating him upon riding a white horse,

if you please. Of course, I think’s it’s very,

very serious proposition. And I state to the

Court very frankly that I am shocked and

disturbed that at this late date that we have to

find out about it in a serendipitous way as

opposed to having been informed by

Government at some time prior to this or the

Court having been informed, I consider it

highly inappropriate.

Any contact by a juror and a third party is

presumptively prejudicial. Remmer v. United States, 347

U.S. 227, 229 (1954). The trial court made a finding that

prejudice was presumed in this case but was rebutted by the

government. The trial court abused its discretion in making

that finding because the government rebuted nothing.

Juror 4’s comment concerning the contact with the

FBI case agent is not innocuous, as the trial court held.

While the former juror stated, "I didn’t discuss the trial", it

is not clear that she did not tell the agent she admired him.

The court did not follow up on that area of disclosure and

petitioners’ counsel were not permitted to directly examine

the former juror, even though the opportunity was sought.

The trial court’s conclusion that juror 4 did not discuss the

case is plainly incorrect. The testimony of the husband of

juror 4 clearly shows that because the husband testified that

his wife did tell the chief FBI agent her feelings: "She was

just telling him she thought he was real brave to be involved

with this mess where it was so much danger." The trial

court again tried to dilute the response: "that’s what she

wanted to tell him?" (emphasis added). The witness held

firm by replying: "that’s what she was telling --"(emphasis

added) and the court cut him off. It is extremely likely that

juror 4 would not have viewed informing the undercover FBI

agent in this case of her admiration for him as "discussing

the case" since an expression of admiration would not

necessarily involve any discussion of the evidence. Given

the nervousness and apprehension / demonstrated by juror

7 Juror number 4 testified that she felt like she was being "tricked"

by the questioning of her during the jury investigation and felt like she

was being "entrapped."

4 at the September 16 hearing, it is entirely likely that she

did commend the FBI agent during trial. The record

demonstrates only that juror number 4 believes she did not

"discuss the case" with the agent. Unfortunately, no further

development of that fact was pursued or permitted by the

court.

Actual bias on the part of juror number 4 was clearly

demonstrated, even with the trial court’s failure to fully

explore it. Her disregard of the court’s instructions not to

discuss the case, even with spouses, to keep an open mind

and her undisclosed contact with the chief government

witness all show that juror number 4 was not impartial. Her

lack of impartiality was prejudicial to the petitioners because

it deprived them of their due process right to a fair trial.

"The truth pronounced by Justinian more than a thousand

years ago that, “Impartiality is the life of justice,’ is just as

valid today as it was then." United States v. Brown, 539

F.2d 467, 469 (Sth Cir. 1976). The severe violation of the

fundamental right to a fair trial cries out for this Court to set

this case for review.

3. The Attorney General’s Undercover Guidelines

During the course of the trial the defense cross

examined the chief government witness, an undercover FBI

agent, on the issue of the improper conduct of the

undercover operation in this case. In order to expedite the

cross examination of the witness, the court informed counsel

that a copy of the Attorney General’s Guidelines for

Undercover FBI Operations (hereinafter guidelines) would be

placed into evidence. In reliance upon that ruling defense

counsel ceased their cross examination of the FBI agent on

that matter and moved to another topic. At a later time,

after the close of all of the evidence and prior to closing

arguments, the government objected to the guidelines being

placed in evidence as an exhibit.

The court changed its mind and decided that under

United States v. Evans, 910 F.2d 790 (11th Cir. 1990), aff’d

on other grounds, 504 U.S. 255 (1992), that the admission

into evidence of the guidelines was erroneous. It determined

that Evans mandated the withdrawal of the guidelines from

evidence. Evans merely held that not allowing the guidelines

into evidence was not an abuse of discretion.8 Since

Jacobson, the Evans decision about the guidelines must be

seriously questioned as having any further vitality because

the question of predisposition must be evaluated at a time

prior to and independent of contact with the government

agent. If the guidelines are violated in an undercover

operation and entrapment is the defense, the guidelines are

indeed relevant on both the issue of inducement and

predisposition. Where the government agent improperly

induced one who was not predisposed prior to contact to

engage in criminal activity, failure to adhere to the

8 Evans was decided before United States v. Jacobson, 503 U.S.

540, (1992). In Jacobson this Court noted that the guidelines would

likely be relevant when it cited them in its discussion on predisposition.

503 U.S. at 549, n.2. The relevance of the guidelines in this case cannot

be seriously disputed.

guidelines would certainly be relevant to the question of

whether an agent of the government "originate[d] a criminal

design, implant[ed] in an innocent person’s mind the

disposition to commit a criminal act, and then induce([d]

commission of the crimes so that the Government may

prosecute." Jacobson,503 U.S. at 548 (citations omitted).

In reliance upon the trial court’s ruling concerning

the guidelines, defense counsel moved on to another topic

during cross examination. In effect, counsel was relying

upon the presence of the guidelines in evidence as an area

that would not need further exploration on cross examination

in order to be able to argue the government’s failure to

adhere to the guidelines as part of its theory of defense.

When the district court removed the guidelines from

evidence after the close of all testimony, the petitioners were

effectively denied the opportunity to cross examine the

witness in violation their Sixth Amendment rights and the

court emasculated a part of the defense theory of the case

since it prohibited the defense from referring to the

guidelines. That the guidelines were relevant to a portion of

the defense theory of the case is readily apparent since the

defense attacked the reliability of Bobby Price, Jr., the

government agent who induced the petitioners. Whether he

was acting in accordance with established procedure was a

critical element in determining whether his actions resulted

in entrapment.

As this Court has held, "cross examination is the

principle means by which the believability of a witness and

the truth of his or her testimony are tested." Davis v. Alaska,

415 U.S. 308, 316 (1974). The removal of the guidelines

from evidence after all sides had rested effectively shut the

door on a critical aspect of the defense case.

4. The Cost-of-Incarceration Fine

At sentencing, the trial court imposed an additional

fine of $630,752.40 on John Price and $526,712.40 on

David Price for the cost of their incarceration, pursuant to

U.S.S.G. §5E1.2(i). The Fifth Amendment guarantees due

process to criminal defendants and the Eighth Amendment

prohibits the imposition of “excessive fines.” The decision

in the court below does violence to both of these provisions

by imposing on petitioners a fine to pay for petitioners’ cost

of incarceration pursuant to 18 U.S.S.G. § 5E1.2(i).

There is a conflict between U.S.S.G § 5E1.2(i),

which requires imposition of a fine “to pay the costs to the

government of any imprisonment,” and 18 U.S.C. §

3553(a), which sets forth the general factors to be considered

in imposing sentence. Section 5E1.2(i) imposes an additional

punishment to serve a goal that is not found in the

Sentencing Reform Act and that is greater than necessary to

satisfy the goals of the Act.

This issue was a question of first impression for the

Eleventh Circuit in this case and that court recognized that

other circuits are split on the question. Price, 65 F.3d at

909. The court held that the cost-of-confinement fines were

constitutional and relied upon the November 1994

amendments to 18 U.S.C. § 3572(a) (specifically including

the expected costs of imprisonment as a factor to be

considered in imposing a fine), 28 U.S.C. § 994(y)

(Sentencing Commission may include a as component of fine

calculus the expected costs of imprisonment), and the

reasoning of the Fifth Circuit in United States v. Hagmann,

950 F.2d 175, 186-87 (Sth Cir. 1991) (guideline using

government's cost for incarceration to determine fine is not

irrational), cert. denied, 506 U.S. 982 (1992). Reliance on

the amended statutes, which became effective nine months

after petitioners were sentenced, was improper. This is still

an issue warranting this Court’s attention because the

Statutory amendments merely authorize the court to consider

the cost as a component of a fine, not an additional fine.

Additionally, the issue of a fine being due immediately based

upon prospective costs not yet incurred or that may never be

incurred, for example, if one dies prior to the end of a

sentence, is a continuing due process violation.

The other courts of appeals are divided on the

constitutionality of “cost-of-incarceration” fines. In United

States v. Spiropoulos, 976 F.2d 155 (3d Cir. 1992), the

court concluded that such fines were impermissible because

there was no specific or general provision in the Sentencing

Reform Act for recouping the cost of imprisonment, and

there was no reason to believe such a fine would meet the

Act’s goals of deterring criminal conduct, protecting the

public or rehabilitating the defendant. /d. at 165. The court

believed construing § 5E1.2 to allow for a _ cost-of-

imprisonment fine as a method of assessing restitution would

risk violating the constitutional guarantee of due process

because “the cost of a defendant’s incarceration bears no

apparent relationship to the amount that a_ particular

defendant’s victim has been injured.” Jd. at 167. While the

court noted that its decision was “in tension” with the Fifth

Circuit’s reasoning in Hagmann, it rejected that court's

analysis as “too facile.” Jd. at 167-68.

Several courts of appeals have followed reasoning

similar to the court’s in Hagmann, which concluded that the

imposition of fines based on the cost of a defendant’s

imprisonment are permissible. See, e.g., United States v.

May, 52 F.3d 885, 891-92 (10th Cir. 1995) (analyzing

decisions from other circuits and concluding that cost-of-

incarceration fine “accounts for the seriousness of the

offense” and “is not greater than necessary”); United States

v. Leonard, 37 F.3d 32, 39-40 (2d Cir. 1994) (recognizing

split among circuits, but concluding fines are permissible);

United States v. Turner, 998 F.2d 534 (7th Cir.) (rejecting

Spiropoulos and finding that cost of incarceration fines were

authorized because of deterrent effect), cert. denied. eeu * 8

__, 114 S. Ct. 639 (1993). Other courts of appeals have

recognized the conflict among the circuits on this issue, but

have declined to decide the matter. See, e. g., United States

v. Carrozza, 4 F.3d 70, 83-84 (1st Cir.) (noting disagreement

among circuits, but declining to answer the question), cert.

denied, _ U.S. __, 114 S. Ct. 1644 (1994),

5. Recusal

On the day before sentencing, the trial court called

counsel to his office and disclosed that he had been provided

with around-the-clock security protection for the two weeks

prior to that day, and maybe longer, due to purported threats

made upon the judge’s life by one of the petitioners. The

court then explained that it would not recuse itself for the

sentencing scheduled for the following day, made certain

findings concerning recusal and cited certain cases. The

defense formally moved for recusal prior to sentencing and

the court denied the motion.

Recusal was required in this instance either under 28

U.S.C. §§144 or 455. See Liteky v. United States, _ US.

_, 114 S.Ct. 1147 (1994). Under Liteky, recusal should

have been ordered because of the extrajudicial matters which

came to the court’s attention. After these matters became

known to the court, its continuing to address matters in this

case, particularly something as profound as sentencing,

certainly raises an appearance of impropriety even if it did

not rise to the level of actual impropriety.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Stephen R. Glassroth, Esq. Jeffery C. Duffey

Counsel of Record for Counsel of Record for

John G. Price David G. Price

March 1996

APPENDIX A

FILED

Dec 14 1993

By THOMAS C, CAVER, CLERK

DEPUTY CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA ) CRNO. 93-57-N

)

VS. )

)

JOHN G. PRICE and )

DAVID G. PRICE. )

MEMORANDUM OPINION AND ORDER

Now before the court is the defendants’ motion for new

trial, filed August 11, 1993. The defendants filed a support-

ing brief on October 12, 1993. The government responded

with a brief in opposition to the motion on October 15, 1993.

The defendants filed a brief in reply to the government’s

opposition on October 22, 1993. For the reasons explained

below, the defendants’ motion for a new trial is due to be

denied.

FACTS

John and David Price were both convicted of multiple

counts of using interstate commerce in the commission of a

murder for hire, pursuant to 18 U.S.C. § 1958, and various

other related crimes including conspiring to use interstate

EOD 12-14-93

commerce for a murder for hire, aiding and abetting another

in the use of interstate commerce for a murder for hire, and

using the mails with the intent that another commit murder.

Both defendants moved the court for a new trial based on

alleged juror misconduct and further moved the court for

relief from the Middle District of Alabama Local Rule 9! in

order to interview the jurors from the second trial and one

juror from the first trial.

The defendants’ motion to interview the jurors alleged

that a juror from the first trial had spoken to the second trial

jurors while the jurors were hearing the case. In addition, the

defendants made allegations, supported by an affidavit, that

one juror remarked to his employer after being asked when

he thought that he would complete his jury service that “it

would not be much longer because he and the other jurors

had their minds made up.” (Cornelius Calhoun Aff. § 2).

The court denied the defendants’ motion to conduct inter-

views of the jurors, but did conduct a full investigative hear-

ing, questioning all the jurors from the second trial, the hus-

band of one second trial juror, and one juror from the first

trial. Although the court questioned each of the witnesses,

the court took care to ask the appropriate questions which

' United States District Court for the Middle District of Alabama,

Local Rule 9 provides:

Attormeys, parties, or anyone acting for them or on their behalf shall

not, without filing formal petition therefor with the Court and securing

the Court's permission, interrogate jurors, either in person or in writing,

in an attempt to determine the basis for any verdict, rendered or to secure

other information concerning the deliberations of the jury or any mem-

bers thereof.

M.D. Ala. R. 9.

were submitted before and during the hearing by the defen-

dants and the government. The court questioned each juror

about whether they had talked with anyone about the trial,

whether those conversations included discussions with Alice

Albertson, a juror from the first trial, and whether they had

listened to any media accounts of the trial. Alice Albertson,

a juror from the first trial, testified that second trial or the

numerical outcome of the first jury’s deliberations with any

of the second trial jurors. She further testified that she saw

some of the jurors in the courthouse snack bar, but that she

did not talk with them.

All of the second trial jurors, with the exception of Juror

4, responded in the negative to all the court’s questions con-

cerning whether they had discussed the case, been exposed

to media reports, or ever said, exactly or in substance, “we

have our minds made up” prior to the beginning of their

deliberations.

Juror 4’s testimony, however, raised serious questions to

be considered by the court. From the onset, Juror 4

appeared nervous and intimidated by the court’s investiga-

tive hearing. As the court questioned her, she became con-

? Juror 4 testified to the following:

BY THE COURT:

All right. Throughout the trial did you maintain an open mind?

I tried to, if that’s a sufficient answer.

Yes. Did you reach a decision in the trial prior to deliberating in

the jury room after all the evidence and after I instructed you?

State that again.

Did you make up your mind about the guilt or innocence prior to

the time that all the evidence was in and I told you what the law

was, and then you took the case to the jury room?

Well, yes. I mean maybe that’s contradicting something I said

O> LPO

fused and her responses to questions were erratic.”

First, Juror 4 testified that she had not followed the

instructions of the court and had discussed the case with her

husband, who also testified at the hearing. According to her

testimony, she remarked to her husband that the defendants

looked “mean,” and her husband did not respond to the char-

acterization. (Tr. at 105.) Her husband, Brian Lanier, did

not remember Juror 4 making that comment to her and testi-

fied that the only comment he recalled her making to him

regarding the trial was that she could not talk about it. (Tr.

at 164.)

Second, after initially testifying that she had made her

mind up before being charged by the court and before delib-

erations had commenced, she testified to the following:

BY THE COURT:

Q. The questions that I asked you about -- or the ans-

wers you gave me about how you felt about the case

before, but I feel --_Lmean lam a little bit nervous,

Q. Well, explain to me what you mean. When you went into the

jury room to deliberate did you have an open mind?

Not really, If that makes sense. I don’t know.

Well, you are going to have to tell me, did you make your mind

up prior to the time I instructed you and prior to the time that

all the evidence was in and prior to the time you went into the

jury room or did you go into the jury room thinking we will

deliberate and then I will reach a verdict?

I would have to say that I made my mind up. If that’s --

I want you to tell me, I can’t tell you.

I will say yes.

Tell me when your mind was made up.

After -- you know, during those nine days, I really--

You mean after all the evidence was in?

OPOPro>

POPO >

while it was being tried, were they merely your eval-

uations of the evidence at that time?

I guess, yes.

They were how you felt at that time about the case.

Yes.

Is that a fair statement?

I guess it is. This is all new to me. I feel entrapped.

MR. EVANS: Your honor, just for the record I under-

stand the Court’s concern and reading of the lan-

guage in those cases, but as phrased, both that ques-

tion and some earlier questions to the witness, I

believe were too leading and suggestive to really

get her to be meaningful, and I think she has

already answered the question.

THE COURT: All right. I think that we are delv-

ing into the deliberative process. I also think the

law is very clear that all jurors begin to get a feel

for the guilt or the innocence of any Defendant dur-

>O> OFOPO>O>O>

Yes.

Did you listen to my instructions about the law?

Yes, I thought I did.

Did you follow them?

Yes. And I know you did say that.

I said don’t do what?

We were supposed to have an open mind and all that.

Did you have an open mind?

I guess I didn’t.

Did you not make a final decision until after you and the

other jurors had voted in the deliberation room?

Did I not make a final decision?

Until then.

Well, I made my decision all along, I felt, of guilty, but I

made my decision, I voted.

ing the course of a trial, and I think that -- and I

find that this juror has told me that she didn’t final-

ly make her mind up until the case was all over

with; is that a fair statement?

THE WITNESS: I think they are guilty, but I --

when we voted in there, when we went around the

room I knew he was guilty and I said yes.

Q. That’s when you finally made your mind up.

. That’s when I said. In my mind I thought it, but

yes. Does that make sense?

Q. Yes, ma’am. That’s when you finally made your

mind up when you voted.

A. When I said yes.

Q. Is that a fair statement?

A. Yes.

(Tr. at 109-111.)

Third, Juror 4 also made a surprising revelation about

an attempt she made to converse with Special Agent

David Johnson of Federal Bureau of Investigation, the

government’s lead witness, during the course of the sec-

ond trial. Juror 4 testified that she tried to approach Mr.

Johnson, but he informed her that he was unable to talk

with her. The colloquy at the hearing pertaining to this

Q. In the jury room.

A. Oh, in the jury room, when they were asked, absolutely, I

made a final -- I mean I did.

(Tr. at 105-7) (emphasis added).

incident is as follows:

BY THE COURT:

Mee oe

Did you at any time speak to any member of the

first trial in the restroom?

Not about the case. I was tired and I -- cold or

something like that.

Nothing about the case?

No, sir.

Or in the coffee shop?

. No, sir. I did go up to -- but I was going to speak to

the -- the FBI, and I asked him did he have just a

minute, but I will tell you the truth, Lwas going to tell

him how I admired him during all this that took place

before the trial when I saw the pictures and every-

thing, you know what I am talking about.

. But you did not do so?

. I didn’t discuss the trial, no, or anything I heard,

and he said I cannot talk to you, that’s what he

told me. Yes.

(Tr. at 104) (emphasis added). Other than Special

Agent Johnson informing Juror 4 that he could not

speak with her, no other contact occurred between

Special Agent Johnson and Juror 4.

Discussion

uros Si okt: Hxtsinsie Bivid

The district court has broad discretion in choos-

ing the investigative procedure to be used in determin-

ing whether juror misconduct occurred, and only an

abuse of discretion by the district court will constitute

error. United States v. Caldwell, 776 F.2d 989, 997

(11th Cir.1985). Juror misconduct concerning outside

influences must be fully investigated to determine if

any misconduct actually occurred and whether or not

it was prejudicial. United States v. Brantley, 733 F.2d

14299, 1439 (11th Cir.1984), cert. denied, 470 U.S.

1006 (1985). Failure to hold a hearing in cases of

Outside influence constitutes an abuse of discretion

and is thus reversible error. United States v.

Chiantese, 582 F.2d 974, 979 (Sth Cir.1978), cert.

denied, 441 U.S. 922 (1979) (holding that a hearing

was unnecessary where a juror made a remark about

the defense counsel). However, when alleged juror

misconduct is the result of internal not external influ-

ences, the court may use its discretion in deciding

whether to interrogate the jurors. Grooms v.

Wainwright, 610 F.2d 344, 347-48 (Sth Cir.), Cert.

denied, 445 U.S. 953 (1980); see United States v.

Conover, 772 F.2d 765 (11th Cir.1985) (holding that

in a case where jurors participated in substance abuse

during trial the decision to conduct a hearing was

within the discretion of the court), cert. denied, 479

U.S. 929 (1986).

The test to determine whether misconduct arises to

the level of warranting a new trial is whether or not

the misconduct has prejudiced the defendant to the

extent that he has not received a fair trial. United

States v. Armstrong, 909 F.2d 1238, 1244 (9th

Cir.1990) (quoting United States v. Klee, 494 F.2d

10a

394, 396 (9th Cir.), cert denied, 419 U.S. 835 (1974)),

cert. denied, 498 U.S. 870 (1990); see United States v.

Jones, 707 F.2d 1169, 1173 (10th Cir.) (holding that

not every incident of jury misconduct warrants a new

trial), cert. denied, 464 U.S. 859 (1983). In United

States v. Bolinger, 837 F.2d 436, 439 (11th Cir.1988),

cert. denied, 486 U.S. 1009 (1988), the Court of

Appeals for the Eleventh Circuit held that “exposure

to extrinsic evidence mandates a new trial only if the

evidence poses a reasonable possibility of prejudice to

the defendant.” Bolinger, 837 F.2d at 439. After the

defendants have shown a reasonable possibility of

prejudice, the government then bears the “burden of

rebutting the presumption of prejudice which attaches

when it has been shown that the jury was exposed to

extrinsic evidence.” /d.

After considering jury exposure to extrinsic evi-

dence, if the district court concludes that no prejudice

resulted from the misconduct then the conviction will

stand. United States v. Brantley, 733 F.2d 1429, 1441

(11th Cir.1984). Furthermore, the Ninth Circuit Court

of Appeals opined that “substantial weight will be

given to the trial judge’s conclusions as to the effect

of alleged juror misconduct” and“[w]hen a wise and

experienced judge, who presided at the trial and

observed the jury, comes to such a conclusion, it is not

for us to upset it.” Armstrong, 909 F.2d at1244 (quot-

ing Klee, 494 F.2d at 396).

The primary extrinsic evidence involved in this

> The other allegation of extrinsic evidence included a juror telling

his employer while discussing his work schedule that “it would not be

lla

case is Juror 4’s discussion of the case with her hus-

band, Brian Lanier, who testified at the investigative

hearing.® According to Juror 4, she told her husband

One evening during the trial that the defendants’

looked “mean.” (Tr. at 105.) Juror 4 then testified

that her husband did not respond. (/d.) Mr. Lanier

testified about the incident telling the court that he did

not remember his wife making such a comment. (Tr.

at 164.) In addition, Mr. Lanier testified that the only

thing he could recall his wife saying to him regarding

the trial was that she could not talk about it. (/d.)

Because this situation involved extrinsic evidence,

the court would have abused its discretion if it had

declined to hold a full, investigative hearing.

However, having held such a hearing in this case, the

court finds that Juror 4’s discussion with her husband,

if it occurred and though against the orders of the

court, created no reasonable possibility of prejudice to

the defendants. -: is unlikely, if not impossible, to

divorce every juror from all contact with nonjurors

which might involve some minute reference to the

case over which they preside as jury members. Juror

4’s general, if not ambiguous, comment to her hus-

band about the defendants looking “mean” is an exam-

ple of the de minimis contact from which it is impos-

sible to shield jurors. Because the court finds that

Juror 4’s discussion with her husband was not prejudi-

much longer because he and the other jurors had their minds made up.”

(Cornelius Calhoun Aff. § 2.) Juror 10 vigorously denied ever making

such a comment. (Tr. at 75-76, 81-82.) The court finds Juror 10’s

response to be credible and deals no further with the allegations about

extrinsic juror misconduct in relation to that alieged incident.

12a

cial, the incident will not support the granting of a

motion for a new trial.

B. Premature Deliberations

“It is a generally accepted principle of trial admin-

istration that jurors must not engage in discussions of

a case before they have heard both the evidence and

the court’s legal instructions and have begun formally

deliberating as a collective body.” United States v.

Resko, 3 F.3d 684, 688 (3rd Cir.1993). There are a

number of reasons for the prohibition of premature

deliberarions. According to the court in Resko, they

are as follows:

First, since the prosecution presents its evi-

dence first, any premature discussion are likely

to occur before the defendant has a chance to

present all of his or her evidence, and it is like-

ly that any initial opinions formed by the

jurors, which will likely influence other jurors,

will be unfavorable to the defendant for this

reason. Second, once a juror expresses his or

her view in the presence of other jurors, he or

she is likely to continue to adhere to that opin-

ion and to pay greater attention to evidence pre-

sented that comports with that opinion.... Third,

the jury system is meant to involve decision

making as a collective, deliberative process and

premature discussions among individual jurors

may thwart that goal. Fourth, because the court

provides the jury with legal instruction only

after all the evidence has been presented, jurors

who engage in premature deliberations do so

13a

without the benefit of the court’s instruction on

the reasonable doubt standard. Fifth, if prema-

ture deliberations occur before the defendant

has had an opportunity to present all of his or

her evidence... and jurors form premature con-

clusions about the case, the burden of proof

will have been, in effect shifted from the gov-

ernment to the defendant, who has “the burden

of changing by evidence the opinion thus

formed.”

Resko, 3 F.3d at 689. Prohibiting premature delibera-

tions helps protect a defendant’s Sixth Amendment

right to a fair trial and a defendant’s right to due

process of law as required by placing the burden of

proving the defendant’s guilt on the government. /d at

689-690. The Third Circuit in Resko went on to say

that “when there are premature deliberations among

jurors with no allegations of external influence on the

jury, the proper process for jury decisionmaking has

been violated, but there is no reason to doubt that the

jury based its ultimate decision only on evidence for-

mally presented at trial.” /d. at 690.

In United States v. Davis, 960 F.2d 820 (9th Cir.),

cert. denied, 113 S.Ct. 210 (1992), the defendant

argued that he had been denied his Sixth Amendment

right to a fair trial because during a posttrial interview

one juror stated that “from the first day I knew [Davis]

was guilty.” The court held that his argument was

“meritless.” Davis, 960 F.2d at 828. According to the

Court of Appeals for the Ninth Circuit, the juror’s

comment simply reflected his personal beliefs and

l4a

evaluation concerning Davis and was insufficient to

set aside a verdict. /d.

Moreover, in United States v. Armstrong, 909

F.2d 1238 (9th Cir. 1990), a juror was heard to com-

ment after the prosecution’s opening argument that

the defendant was guilty. The court held that defen-

dant was not denied a fair trial. Armstrong, 909 F.2d

at 1244.

Lastly, in United States v. Harris, 908 F.2d 728

(1l1lth Cir.1990), cert. denied, 498 U.S. 1093 (1991),

one juror allegedly told a key government witness to

“do it to him good” while the witness was proceed-

ing to the witness stand to testify. Harris, 908 F.2d

at 734. The Court of Appeals for the Eleventh

Circuit upheld the district court’s decision not to

hold an investigatory hearing concerning the com-

ment. Furthermore, they ruled that jurors naturally

begin to form opinions as a case progressed. /d.

The court went on to quote Grooms v. Wainwright,

610 F.2d 344 (Sth Cir.1980),4 where the Court of

Appeals for the Fifth Circuit ruled that a similar

juror’s comment did not reflect serious prejudice

“but only an objective evaluation of the evidence

presented to date in the trial.” Grooms, 610 F.2d at

348 (holding that a district court did not abuse its

discretion in denying a motion for new trial where a

juror remarked that “as far as I’m concerned [from]

* In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981),

the Court of Appeals for the Eleventh Circuit adopted as binding

precedent all decisions of the former Fifth Circuit rendered prior to

October 1, 1981. ai

15a

what I heard already he’s guilty”).

Juror 4 initially testified that she had waited until

deliberations began in the jury room before she

made up her mind about the guilt or innocence of the

defendants. (Tr. at 105.) Later in the hearing, Juror 4

testified that she had made up her mind about the

guilt before the defendants finished their case and

before the court instructed the jury about the applic-

able law. (Tr. at 106-107.) Juror 4, throughout her

testimony, was intimidated by the proceedings and

was visibly nervous. She became confused by what

the court meant when it asked her about whether she

maintained an open mind during the trial. Sensing

that she was unsure of what the court meant by an

“open mind,” the court asked specific questions con-

cerning whether she listened to all the evidence as

presented, whether she listened to the instructions of

the court, whether she listened to the deliberations

of the other jurors, and whether she made up her

mind while deliberating. (Tr. at 106-107.) Although

her testimony was somewhat unclear, it appears that

she listened to the jury instructions, that she fol-

lowed them, and that she maintained an open mind

until deliberations began. (Tr. at 106.) Her prior

testimony to the contrary was simply a characteriza-

tion of the strength of the government’s case from

the beginning of the trial, the evaluation of which is

clearly within the prerogative, if not the duty, of a

juror. The court finds that Juror 4, though confused

when questioned about the trial and her impressions,

maintained an open mind during the trial and that

any conclusions she may have reached during the

16a

trial were, to use the words of the court in Grooms v.

Wainwright, “objective evaluation[{s] of the evidence

presented to date in the trial.” The fact that she

voted to acquit David Price of two counts of the

indictment is strong and direct evidence that she

maintained an open mind about the guilt or inno-

cence of the defendants. In addition, the colloquy

set Out previously in this opinion further supports

the conclusion that any confusion created by her ini-

tial testimony was dispelled at the end when she tes-

tified that she finally made up her mind when she

voted. See supra pp. 3-4.

A juror would not be doing his or her duty unless

he or she weighed each piece of evidence and evalu-

ated its strengths and weaknesses. During that eval-

uation process, a juror naturally begins to form opin-

ions. Though a juror may form a tentative opinion

during trial, such a process does not mean that

such opinion is not subject to change when the

judge instructs the jury on the law or during jury

deliberations.

The court finds that Juror 4 formed the natural

Opinions that would result from the presentation of

strong and direct evidence, but that those prelimi-

nary Opinions did not prevent Juror 4 from maintain-

ing an open mind until the deliberation phase of the

trial. Furthermore, the court finds that the defen-

dants were not prejudiced by any premature deliber-

ations on the part of Juror 4. The defendants’ alle-

gations and the testimony concerning Juror 4’s

engaging in premature deliberations were not born

17a

Out in the hearing and are not sufficient to support

the granting of a motion for a new trial.

C. Unauthorized Di ee i eo itay

“Any unauthorized private communication

between jurors and persons associated with the case

is presumptively prejudicial, unless its harmlessness

is or becomes apparent.” United States v. O’Brien,

972 F.2d 12, 14 (1st Cir.1992). The burden is on the

government to prove that the communication was

harmless.

The United States Supreme Court held in Smith v.

Phillips, 455 U.S. 209, 217 (1982), that since “it is

virtually impossible to shield jurors from every con-

tact or influence that might theoretically affect their

vote... due process does not require a new trial every

time a juror has been placed in a potentially compro-

mising situation.” Smith, 455 U.S. at 217. The

Court went on to say that “[d]Jue process means a

jury capable and willing to decide the case solely on

the evidence before it, and a trial judge ever watch-

ful to prevent prejudicial occurrences and to deter-

mine the effect of such occurrences when they hap-

pen.” /d.; see United States v. Rowe, 906 F.2d 654,

656 (11th Cir.1990) (holding that a comment by a

juror while in the restroom that the defendants could

not pay their lawyers did not create a reasonable

possibility of prejudice).

In United States v. Strickland, 935 F.2d 822 (7th

Cir.) cert. denied, 112 S.Ct. 324 (1991), the court

held that improper, extrajudicial contact between the

jury and a third party can indeed prejudice a defen-

dant; but it does not necessarily do so in every case.

18a

The determination of whether the contact in a given

case was prejudicial or harmless lies primarily with-

in the discretion of the court. Also, in United States

v. Castello, 830 F..2d 99, 101 (7th Cir.1987), the

court held that “harmless contact” between a juror

and a security guard was not a proper ground for

reversal.

In United States v. Day, 830 F.2d 1099, 1104

(10th Cir.1987), a juror and a federal agent, who had

been sitting at the prosecutor’s table during the trial,

had a conversation in the restroom which consisted

of the juror telling the agent that he was “sleepy”

and the agent responding that the government’s next

piece of evidence “may put you to sleep.” The court

held that the conversation was merely a “casual,

time-of-the-day greeting.”

The facts in Day are very similar to the facts in

the present case. Juror 4 approached a key govern-

ment witness, Special Agent David Johnson, and

Special Agent Johnson told her that he could not talk

with her. In cases where jurors have communicated

with third parties, the contact is deemed prejudicial

unless the government can show that the contact was

harmless. In the present case, as in Day, the contact

did not involve the merits of the case. The attempt-

ed conversation between Juror 4 and Special Agent

Johnson only involved a greeting with Special Agent

Johnson politely admonishing Juror 4 that he could

not talk to her. Since the contact was presumptively

prejudicial, the government bears the burden of

proving it was harmless. The court finds that the

government has carried that burden in this case.

eer ane re nn eee nT en a ae

19a

Therefore, the court finds that Juror 4’s attempt to

talk with Special Agent Johnson was harmless and

not prejudicial to the defendants.°*

The principle that a jury verdict is based solely

on the evidence presented at trial is fundamental to

Our system of jurisprudence. Turner v. Louisiana,

379 U.S. 466, 472 (1965). On its face, Juror 4’s

favorable impression of Special Agent Johnson does

not show bias but is merely an objective evaluation

of his testimony. Moreover, this characterization is

further supported by the acquittal of David Price on

two counts. Though against the court’s order, the

court finds that the contact between Juror 4 and

Special Agent Johnson was harmless and not preju-

dicial to the defendants. Thus, the contact is insuf-

* Juror 4 testified that she wanted to tell Special Agent Johnson

that she admired him for the undercover work he had done in bringing

the defendants to trial. However, Special Agent Johnson did not let

Juror 4 proceed, but cut her off after she initially spoke to him.

Neither Special Agent Johnson nor the government knew what Juror 4

intended to say at the time of the initial contact. Because Special

Agent Johnson would not let Juror 4 proceed, the government could

not have reasonably known that Juror 4 intended to say something

favorable about the prosecution. Indeed, the government would never

have known if it had not been brought out by the investigative hearing

conducted by the court.

Furthermore, the fact that Juror 4 may have admired Special

Agent Johnson is of no consequence. Her characterization of a gov-

ernment witness was perfectly within her role as a juror. It was only

her attempt to approach the witness that was improper and in violation

of the court’s orders, but the court finds that this violation resulted in

no prejudice or harm to the defendants.

20a

ficient to support the granting of a motion for a

new trial.

Lastly, the defendants argue that the govern-

ment’s failure to disclose the contact between Juror

4 and Special Agent Johnson is a sufficient ground

for the court to order a new trial. First, it is

unclear whether the government knew about the

contact. Consequently, without notice, the govern-

ment would be under no duty to report the contact

to the court.® In the alternative, even if the govern-

ment had notice of the contact, the defendants have

cited no controlling nor clear authority that the

government had a duty to disclose such de minimis

contact. The defendants have not cited any control-

ling authority dictating that a new trial would be

required in situation where the government did not

make such a disclosure. Neither the government’s

lack of notice nor its alleged failure to disclose the

* Assistant United States Attorney Teschner, when questioned by

the court, answered as follows:

BY THE COURT:

Q. What gave you that understanding that it was Mr. Johnson?

MR. TESCHNER: He told me yesterday, Your Honor.

MR. COOK: I would like to know, if I may, and I am addressing

the Court, when was it that Government counsel for the first

time learned that, in fact, had occurred, that the agent had been

approached by a juror during the progress of the case, if it was

just yesterday, and if anyone on the defense or the Court had been

advised of that prior to the time that it fell out of the witness.

Q. Do you wish --

MR. TESCHNER: Your honor, I do not -- I do remember that

Special Agent Johnson did come to me, my belief, my best recol-

lection is it was after the trial, aid indicated a juror had come and

| : |

21a |

contact is sufficient to support the granting of a

motion for a new trial.

i Conclusion

It is within the sound discretion of the court

h whether to conduct an investigatory hearing con-

cerning alleged juror misconduct. Furthermore, it

is within the ample discretion of the court as to

how an inquiry should be conducted. Lastly, the

principle question for a court to determine is

whether the defendants were prejudiced by alleged

juror misconduct in any way. The court conducted

a full investigation of the juror misconduct which

allegedly occurred in the second trial of the defen-

dants. It is considered judgment of the court that

no material misconduct occurred and that the

defendants were not prejudiced in any way. The

court finds that both defendants received a fair trial

along with a full measure of due process of law.

As the Alabama Court of Criminal Appeals

recently opined in Hunt v. Alabama, No. CR 92-

1300 (Ala. Crim. App. Dec. 13, 1993), “‘[A] defen-

dant is entitled to a fair trial but not a perfect one,’

for there are no perfect trials.” Hunt, No. CR 92-

1300, slip op. at 132 (Ala. Crim. App. Dec. 13,

f 1993) (quoting Brown v. United States, 411 U.S.

(| 223 (1973)). The court finds that the defendants

. received a fair trial.

asked if she could talk to him and he refused to talk to her. But I

do know that he mentioned it yesterday to me. This was not dur-

ing the trial, but I cannot recall a specific date or time...

(Tr. at 153.)

22a

For the foregoing reasons, it is CONSIDERED

and ORDERED that the defendants’ motion for new

trial be and the same is hereby DENIED.

DONE this the 14th day of December, 1993.

(s) Ira De Ment

UNITED STATES DISTRICT JUDGE

23a

APPENDIX B

24a

UNITED STATES of America,

Plaintiff-Appellee,

David G. PRICE, Defendant-Appellant.

UNITED STATES of America,

Plaintiff-Appeliee,

Vv.

John G. PRICE, Defendant-Appellant.

Nos. 94-6141, 94-6152.

United States Court of Appeals,

Eleventh Circuit.

Sept. 29, 1995.

Appeals from the United States District Court for the

Middle District of Alabama.

Before COX, Circuit Judge, RONEY and WOOD*,

Senior Circuit Judges.

PER CURIAM:

John and David Price were convicted for conspiracy, in

violation of 18 U.S.C. § 371 (1988), to commit murder and

for the use of interstate commerce facilities in violation of 18

U.S.C. § 1958 (1988), with the intent to commit murder-

for-hire. John Price was also convicted of solicitation to

commit a crime of violence in violation of 18 U.S.C. § 373

(1988), while David Price was separately convicted for using

interstate commerce facilities in violation of 18 U.S.C. §

25a

1958 (1988), with the intent to commit murder-for-hire.'

John Price was sentenced to 360 months imprisonment and

fined. David Price was sentenced to 300 months in prison

and was ordered to pay fines as well. The Prices appeal,

challenging their convictions and their sentences. We affirm

their convictions but vacate their sentences and remand for

resentencing.

I. FACTS AND PROCEDURAL HISTORY

John Price was president of Price Rubber Corporation, a

business headquartered in Montgomery, Alabama. His son

David managed a Texas rubber plant owned by the company.

Several business-related incidents gave rise to the convic-

tions now at issue.

Before establishing operations in Montgomery, John

Price owned a rubber warehouse and distribution center in

Auburn, Georgia. That facility burned in 1974, causing Price

a three million dollar uninsured loss. The Prices have always

believed that Auburn resident David Hawthorne was respon-

sible for the arson. Nothing came of their suspicions for a

time, however, because shortly after the fire, the Prices left

Auburn and moved to Montgomery to found Price Rubber.

The Prices acquired more perceived enemies when, in

1986, Sy Shafer and Ellis Lucas sold their printing concern,

Pioneer Press, to Kenny Price, John Price’s nephew. Kenny

was affiliated with the Prices’ enterprise, and he ran the

* Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for

the Seventh Circuit, sitting by designation.

' Both Prices were charged with tampering with witnesses, in viola-

tion of 18 U.S.C. § 1512(b)(2)(A) (1988), but were acquitted on those

two counts.

26a

printing business “parallel” to the principal rubber operation.

(Gov't Ex. 6 at 17-18.) Shafer and Lucas retained Leon

Capouano, a Montgomery lawyer, to handle the sale of

Pioneer Press.

The acquisition proved troublesome for the Prices. The

parties to the deal became involved in litigation, and ulti-

mately Shafer and Lucas obtained a money judgment against

Pioneer Press and Kenny Price. Litigation continued through

1992; Sy Shafer had filed two suits directly against John

Price by the fall of 1991. Family relations turned so sour

that John Price fired nephew Kenny, on the belief that he was

stealing from the company. After his severance from the

Price empire, Kenny became a prospective witness for Sy

Shafer against his uncle.

Further problems arose for Price Rubber in 1991, when

Internal Revenue Agent Dwight Huff initiated an examina-

tion of the company’s tax records. Though routine, the

review spanned the next two years, in part because of the

failure of Price Rubber to timely provide information neces-

sary for the audit’s completion.

Not found of lawyers, John Price and his son David

decided to bypass legal recourse and deal with their woes

through a sinister plot to pay back their perceived enemies by

hiring hitmen to wreak various degrees of havoc upon them.

Bobby Price (unrelated to, but acquainted with John and

David Price) was the Prices’ initial contact with the under-

world.? In November, 1991, David Price visited Bobby’s

auto body shop in Montgomery. At this meeting, David

* Bobby Price had worked for the Prices during 1983-1984 and again

during 1987. During those times, Bobby knew both Prices and had

become friends with David Price.

27a

handed Bobby $2000 and instructed him to find “the right

people” to blow up Leon Capouano’s law office and to kill

David Hawthorne in Auburn, Georgia. (R. 18 at 329.) Later,

David mailed Bobby two packages which contained maps,

photographs, and other information about Capouano and

Hawthorne. The second parcel also contained a note indicat-

ing that David Price had two more names to add to the “hit

list,” apparently Kenny Price and Sy Shafer.

Meanwhile, Bobby Price was arrested July 8, 1992, for

trafficking in marijuana. In exchange for a lighter sentence,

Bobby struck a deal with the government, eventually provid-

ing information about the Prices’ murder-for-hire plot.’ After

his agreement with the government, the federal agents

orchestrated a meeting on August 14, 1992, between Bobby

Price and David Price, during which David told Bobby that

Kenny Price and David Hawthorne were still prime targets.

David also took Bobby out to Elmore County, Alabama, to

“case” Kenny’s trailer. David paid Bobby $1500, and Bobby

explained that he had two friends (FBI special agents) who

would be willing to do these jobs for the Prices.

One week later, Bobby had a similar meeting with John

Price. There, John expressed his desire to have Kenny “bust-

ed up pretty good,” (Gov't Ex. 2 at 59), though he expressed

hesitation about killing his nephew outright. As for David

Hawthorne, John stated that “the guy needs to be rubbed out.

> Bobby provided information regarding drug traders in the

Montgomery area during “debriefing sessions” held in July, 1992. He

did not mention John and David Price until August 4, 1992, after the

debriefing agents demanded to know about phone calls made to

Arlington, Texas. (R. 18 at 339-42.) Those calls were to David Price

and concerned the activities at issue in this case.

28a

No question about that.” (/d. at 62.)*

By September 16, Bobby had introduced David Price to

the undercover FBI agents, and meetings between the partici-

pants continued through the fall of 1992. During these meet-

ings, the murders of Kenny Price, David Hawthorne, and Sy

Shafer, as well as the bombing of Leon Capouano’s law

office, were planned and paid for by John and David Price.’

Finally, John Price sent a letter to the agents in January,

1993, requesting the “well damaged carcass” of IRS agent

Dwight Huff, in retaliation for the inconvenience caused by

the audit of Price Rubber. (Gov’t Ex. 63.)

The last meeting between the federal agents and John

Price occurred on January 27, 1993, in Montgomery. There

the agents told Price that the first murder, that of Sy Shafer,

had been completed, and they showed him pictures of what

they said was the body. John Price paid the agents $20,000

and expressed enthusiasm about the imminent success of the

remaining jobs. Later that day, he and son David were

arrested.

* John Price was more reluctant than his son to order the murder of

their targets. Instead, he graphically described how he would rather have

them mutilated, so that they would have to live with the damage for the

rest of their lives. Still, John Price was at best indifferent to his targets’

survival: “... if [Hawthorne] should ... should die I don’t give a shit... ”

(Gov't Ex. 2 at 66; Gov't Ex. 6 at 24-25.)

* The Prices’ plans became more grandiose as time passed. By

December, 1992, John Price sent the agents a“menu” of possible ser-

vices for the agents to perform and the payments he would make for

each. (R. 17 at 189-92.) Later, Price referred back to the menu to

describe what he wanted done to two attorneys, Dennis Pentazis and

Tim Davis, who were involved in litigation against him. (R. 17 at 198;

18 at 230.)

29a

A grand jury in the Middle District of Alabama indicted

the Prices jointly, and the case went to trial in June, 1993.

The Prices were acquitted on two counts of witness tamper-

ing, but t*: jury was unable to reach a verdict on the other

counts. «> a result, a mistrial was declared as to those

counts. Retrial began in July, 1993, and the jury returned

guilty verdicts against both defendants on the remaining

charges. The Prices filed a motion for a new trial, which

alleged, among other things, that juror misconduct deprived

them of a fair trial. The court questioned the jurors in cam-

era to investigate the alleged improprieties, and some

instances of misconduct were found. The judge ruled that

none of the incidents prejudiced the defendants’ rights and

denied the motion for a new trial.

David Price was sentenced to a total of 300 months in

prison, a period of supervised release, and was fined

$726,712.40, which included a fine of $200,000 and costs of

incarceration and supervision. David was also ordered to

pay a $200 assessment and restitution of $350 to Leon

Capouano. In calculating David Price’s sentence, the court

applied an upward adjustment based on its finding that he

obstructed justice by giving false testimony at trial. See

United States Sentencing Commission, Guidelines Manual §

3C1.1 (Nov. 1992).

John Price’s sentence consisted of a total of 360 months

in prison and a period of supervised release. Additionally,

John Price was fined $880,752.40, comprised of a $250,000

fine and costs of incarceration and supervision. He was also

ordered to pay $350 in restitution to Capouano.

In calculating both Prices’ sentences, the trial judge

found that a two-level upward departure was warranted

30a

because of the racial and ethnic motivation behind the

crimes, the severe psychological injury to the victims, and

the threat of harm to third parties. The Prices appealed.

II. ISSUES ON APPEAL

The Prices raise several issues on appeal. They contend

that: (1) the trial court’s denial of their motions for acquittal

was erroneous because they were entrapped as a matter of

law; (2) the trial court’s imposition of cost-of-confinement

fines violated the Fifth and Eighth Amendments to the

Constitution; and (3) the court misapplied the sentencing

guidelines when it calculated their sentences.®

* The Prices also argue that the trial court improperly denied their

motions for a new trial after allegedly prejudicial juror misconduct was

discovered.. They further claim that the trial court abused its discretion

in the manner in which it conducted its investigation of the possible mis-

conduct.

The Prices allege several acts and omissions by the trial court which

they contend deprived them of a fair trial. They claim that: (1) the trial

court's entrapment instruction was inadequate; (2) the trial court erred

by removing from evidence the Attorney General’s guidelines on FBI

Undercover Operations; (3) the court erred by not allowing the defense

to have an unredacted copy of informant Bobby Price’s diary; and (4)

the diary and other information were required to be disclosed under

Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

They also attack the trial court’s admission into evidence of a photograph

containing inflammatory racial and ethnic matter, the trial court's instruc-

tion given to remedy “improper” remarks made by the prosecutor, and,

finally, the judge's failure to recuse himself prior to sentencing because

of death threats purportedly made by the Prices.

David Price separately argues that it was error for the district court

to enhance his sentence under U.S.S.G. § 3C1.1 on the ground that

Price obstructed justice by perjuring himself during the trial.

All these contentions are without merit and do not warrant further

discussion. See 11th Cir.R. 36-1.

3la

III. DISCUSSION

A. Entrapment

The Prices invite us to overturn their convictions, arguing

that the district court should have granted their motions for

acquittal because the government’s evidence was insufficient

to negate their entrapment defense. Their argument on this

issue fails.

[1,2] Entrapment is generally a jury question. United

States v. Brown, 43 F.3d 618, 622 (11th Cir.1995) (citing

Mathews v. United States, 485 U.S. 58, 61, 108 S.Ct. 883,

886, 99 L.Ed.2d 54 (1988); United States v. Costales, 5 F.3d

480, 487 (11th Cir.1993)). Therefore, appellate review of a

defendant’s contention that he was entrapped as a matter of

law is a sufficiency of the evidence inquiry, limited to decid-

ing whether the evidence was sufficient for a reasonable jury

to conclude that the defendant was predisposed to take part

in the illicit activity. Brown, 43 F.3d at 622 (citing United

States v. Aibejeris, 28 F.3d 97, 99 (11th Cir.1994)). Review

is de novo, but we must view all facts and make all infer-

ences in the government’s favor. /d. (citing Aibejeris, 28

F.3d at 98). We cannot overturn a verdict if any reasonable

construction of the evidence would allow the jury to find the

defendant guilty beyond a reasonable doubt. /d. (citing

United States v. Ventura, 936 F.2d 1228, 1230 (11th

Cir.1991)).

(3, 4]A valid entrapment defense consists of two ele-

ments: government inducement and the defendant’s lack of

predisposition to commit the crime prior to the inducement.

Mathews, 485 U.S. at 63, 108 S.Ct. at 886 (citations omit-

ted). While the burden of production rests with the defen-

32a

dant to show inducement, once that showing is made, the

burden shifts to the government to prove beyond a reason-

able doubt that the accused was predisposed to commit the

crime. Brown, 43 F.3d at 623.

To establish government inducement, an “element of per-

suasion or mild coercion” is necessary. /d. In this case,

there are numerous instances of government attempts to per-

suade or pressure John and David Price to commit the crimes

they planned. For example, Bobby Price invoked his rela-

tionship with the Prices in offering to pay them back for past

favors by arranging the murders of the Prices’ enemies. A

reasonable jury could have believed that such pressure

induced the Prices to put their schemes in motion, so the

court properly decided to charge the jury on entrapment.

The flaw in the Prices’ argument is their contention that

no reasonable jury could conclude that they were predis-

posed to engage in their murder-for-hire plot. They argue

that they were not “disposed” to commit the crimes

charged until after the initial contact with government

agents. The Prices correctly assert that “one may not

become unentrapped when the disposition arises after

entrapment,” (Appellant John Price’s Br. at 24), and they

claim, based on excerpts from the conversations they had

with Bobby Price and the FBI agents, that they were reluc-

tant to take part in the murder-for-hire scheme until after

government persuasion.

Predisposition is “necessarily a fact-intensive inquiry

because it is a subjective inquiry into a defendant’s state of

mind.” Brown, 43 F.3d at 625 (rejecting five-factor list used

by other circuits in reviewing predisposition in favor of case-

by-case analysis). To show predisposition, the government

33a

must prove beyond a reasonable doubt that “the defendant

was actually predisposed to commit the underlying crime

absent the government’s role in assisting such commission.”

Aibejeris, 28 F.3d at 99 (citing Jacobson v. United States,

503 U.S. 540, 547-49, 112 S.Ct. 1535, 1540, 118 L.Ed.2d

174 (1992)); see also Brown, 43 F.3d at 624-25 (endorsing

approach based on defendant’s “readiness and willingness”

to commit the crime; listing several “guiding principles” to

use in reviewing predisposition findings, such as jury consid-

eration of demeanor and credibility evidence).

[5] We cannot say that the evidence was insufficient for

the jury to conclude beyond a reasonable doubt that the

Prices were predisposed to commit the crimes of which they

were convicted. While some statements made by both John

and David Price suggest hesitation to go as far as murder,

there are other indications of their readiness and willingness

to have their perceived enemies maimed or killed.

Significantly, David Price met with Bobby Price and made

the first “downpayment” for their series of “hits” in

November, 1991, long before Bobby became a government

agent. In negotiating with the FBI agents about their fees,

both John and David Price made reference to payments pre-

viously given to Bobby. This further Suggests that the

Prices’ disposition arose before government agents allegedly

pressured them to discuss murder.

B. Sentencing Issues

The Prices attack several aspects of their sentences.

They argue that the fines imposed to pay for costs of incar-

ceration and supervision are unconstitutional, and they also

contest the two-level upward departure that the trial judge

found was merited because of the nature of the Prices’

plans and actions.

1. Cost-of-Confinement Fines

[6] The Prices argue that the fines levied upon them

pursuant to U.S.S.G. § 5E1.2(i) to pay for costs of incarcer-

ation are excessive under the Eighth Amendment and violate

due process under the Fifth Amendment because they are not

rationally related to the purposes of the Sentencing Reform

Act. The Prices argue that U.S.S.G. § 5E1.2(i), which pro-

vides for cost-of-incarceration fines, and 18 U.S.C. §

3553(a) (1988), which states that courts shall “impose a sen-

tence sufficient, but not greater than necessary,” are in con-

flict, since § 5E1.2(i) imposes an “additional” fine on top

of the fine ranges contained in the table provided by §

SE1.2(c).’ The government, on the other hand, asserts that

the fine is neither excessive nor irrational. Such questions of

law are subject to plenary review. See United States v.

Weaver, 920 F.2d 1570, 1573 (11th Cir.1991).

[7] The validity of U.S.S.G. § 5E1.2(i) is an issue of

” The Prices argue that such a fine is by definition excessive under

the Eight Amendment. We reject their argument. The penalties levied

on the Prices are neither excessive nor grossly disproportionate to the

crimes committed, see Alexander v. United States, —- U.S. —,—,

113 S.Ct. 2766, 2770, 125 L.Ed.2d 441 (1993); United States v. Elkins,

885 F.2d 775, 789 (11th Cir.1989), cert. denied, 494 U.S. 1005, 110

S.Ct. 1300, 108 L.Ed.2d 477 (1990), and so pass muster under the Eighth

Amendment. Indeed, a fine based on a criminal’s stay in prison seems to

be by definition proportional to the crime committed. The Prices also

argue thal it is excessive to require them to pay for their imprisonment

costs when they have yet to incur them. This argument is beside the

point as well, since the fines are meant to penalize their criminal actions,

not to pay the bills as they accrue while in prison. Also, the money will

go not to their prison facilities but to the Crime Victims Fund, 42 U.S.C.

§§ 10601 to 10603 (1988).

35a

first impression in this circuit, and other circuits are split on

the question. Compare United States vy. Spiropoulos, 976

F.2d 155, 165-67 (3rd Cir.1992) (holding § 5E1.2(i) to be

inconsistent with Sentencing Reform Act while avoiding due

process question) with United States v. Hagmann, 950 F.2d

175, 187 (Sth Cir.1991), cert. denied, —— USS. —, 113

S.Ct. 108, 121 L.Ed.2d 66 (1992) (finding that cost-of-incar-

ceration fines are rational means to assist victims of crime

collectively). In declaring guideline § 5E1.2(i) invalid, the

Third Circuit found that the plain language of the section

indicated that the fines imposed thereunder were to reim-

burse the government for the costs of imprisonment.

Spiropoulos, 976 F.2d at 166. The court concluded that the

Sentencing Reform Act did not authorize fines to cover costs

of confinement, even though the money collected from the

fines went to the Crime Victims Fund and not actually to pay

for penal operations. Jd. at 166-67.

We disagree with the assertion that Congress did not con-

sider imposition of cost-of-confinement fines to be within the

scope of the Sentencing Reform Act’s goal of restitution.

See 18 U.S.C.A. § 3572(a)(6) (West Supp. 1995) (providing

that courts can consider “the expected costs to the govern-

ment of any imprisonment, supervised release, or probation

component of the sentence” in setting amount of fine); 28

U.S.C.A. § 994(y) (West Supp.1995) (stating that

Sentencing Commission may include as component of fine

calculus the expected costs of imprisonment). Instead, we

find Hagmann to be persuasive. We agree with the Fifth

Circuit that “the uniform practice of fining criminals on the

basis of their individualistic terms of imprisonment—an indi-

cator of the actual harm each has inflicted upon society—is a

36a

rational means to assist the victims of crime collectively.”

Hagmann, 950 F.2d at 187.

Although the Third Circuit in Spiropoulos found the

analysis in Hagmann to be “too facile,” 976 F.2d at 168,

Spiropoulos has been rejected, and Hagmann followed, in

every other circuit that has addressed the issue. See, e.g.,

United States v. Zakhor, 58 F.3d 464, 466 (9th Cir.1995)

(upholding cost of confinement fines); United States v. May,

52 F.3d 885, 891 (10th Cir.1995) (finding guideline rational-

ly related to legitimate government interest); United States v.

Leonard, 37 F.3d 32, 39 (2d Cir.1994) (citing Hagmann and

holding § 5E1.2(i) consistent with 18 U.S.C. § 3553(a));

United States v. Turner, 998 F.2d 534, 538 (7th Cir, 1993)

(holding that § 5E1.2(i) is authorized by statute), cert.

denied, —— U.S. —, 114 S.Ct. 639, 126 L.Ed.2d 598

(1993). We join the other circuits that have upheld U.S.S.G.

§ 5E1.2(i), and we reject both constitutional challenges

made by the Prices.

2. Upward Departure Granted by the District Court

The trial court found that the Prices’ crimes went beyond

the “heartland” of typical cases, see U.S.S.G. § 5K2.0, and

departed upward by two levels from the applicable guide-

lines in calculating their sentences. (R.31 at 103.) In decid-

ing that this case merited departure, the court found that

three aspects of the Prices’ activities were not adequately

considered by the guidelines: (1) their extreme conduct,

including the fact that harassment of Leon Capouano was

motivated by racial and ethnic prejudice, and that the Prices

planned to mutilate IRS agent Dwight Huff; (2) the risk of

harm to innocent bysianders because of the plan to blow up

lala

37a

Capouano’s law firm; and (3) the extreme psychological

injury to Kenny Price and other victims.* The court treated

these factors as a group, assigning no relative weight to one

factor over another in making the decision to depart from the

guidelines. The Prices challenge the departure, arguing that

the sentencing guidelines adequately considered all aspects

of their crimes, and that there was insufficient factual support

for the trial court’s findings. The government originally

moved for a four-level departure, but on appeal urges us to

affirm the two-level departure as reasonable.

[8] In sentencing determinations, a court may impose a

sentence Outside the range established by the guidelines, if

the court finds that “there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in formu-

lating the guidelines that should result in a sentence different

from that described.” 18 U.S.C. § 3553(b) (1988). We

review such departures by applying a three-step analysis.

United States v. Dailey, 24 F.3d 1323, 1325 (11th Cir.1994)

(citing Weaver, 920 F.2d at 1573). We review de novo a deci-

sion as to whether the guidelines adequately consider a par-

ticular factor so as to preclude a sentencing court’s reliance

on it as a basis for departure. /d. Second, we review the fac-

tual findings underlying the trial court’s decision to depart

for clear error. /d. Finally, we review the departure itself for

reasonableness. /d.; accord United States v. Passmore, 984

F.2d 933, 937 (8th Cir.1993) (holding that extent of upward

departure is a “judgment call” by district court). We deal

with each factor relied upon by the trial court in turn.

a. Extreme conduct (racial/ethnic motivation for crimes;

*(R.Ex. 210 at 6 (John Price), 208 at 6 (David Price).)

38a

planned mutilation of victims)

The Prices do not challenge the trial court’s determina-

tion that racist or anti-semitic motivation for a crime was a

proper basis for departure.’ Instead, they argue that their

actions were not racially or ethnically motivated, and that it

was Clear error for the trial court to find that they were. Our

review, then, is limited to determining whether the trial

court’s factual findings are clearly erroneous.

[9] We find no clear error in the trial court’s finding

that the Prices were motivated by ethnic hatred in their

harassment of Leon Capouano. While it is true that the

court, as well as the government, acknowledged that two pri-

mary motivators for the Prices’ conduct were greed and busi-

ness litigation, the trial court concluded that racial and ethnic

prejudice also played a part. See McAninch, 994 F.2d at

1388 (affirming trial court’s conclusion that hatred was moti-

vator of crime despite evidence that psychological problems

could have been the cause). The Prices knew that Capouano

was Jewish, and when they vandalized his home they painted

swastikas and anti-semitic and racist remarks designed to

strike at his religious heritage. The Prices also made repeat-

ed anti-semitic remarks about Capouano and Jews in general.

While the Prices counter that any racist and anti-semitic con-

* While we do not reach the issue here, we note that other circuits

have allowed departures based on racist or anti-semitic motivation. See

e.g., United States v. McAninch, 994 F.2d 1380, 1387-89 (9th Cir.) (hold-

ing that defendant’s racist motivation is valid ground for departure

because it is not otherwise treated in guidelines), cert. denied, —— U.S.

—, 114 S.Ct. 394, 126 L.Ed.2d 342 (1993); United States v. Salyer, 893

F.2d 113, 115-16 (6th Cir.1989) (race of victim could be considered

under U.S.S.G. § 3A1.1 where defendant tailored actions to exploit

special vulnerability of African-American family to cross burning).

39a

duct was impulsive and isolated, there is evidence that the

Prices put some thought into what they did and how they did

it. See United States v. Sanders, 41 F.3d 480, 485 (9th

Cir. 1994) (holding that racist and anti-semitic letters, though

short and simplistic, evidenced deliberation where defendant

had to look up addresses and tailor each message to the

group he was attacking), cert. denied, —— U.S. —, 115

S.Ct. 2010, 131 L.Ed2d 1009 (1995).

[10] As for the proposed mutilation of IRS agent Dwight

Huff, the Sentencing Commission did not adequately provide

for such a grisly variety of the crime when it designed the

applicable guidelines for conspiracy, solicitation, or murder-

for-hire. See U.S.S.G. § 5K2.8 (allowing departure where

defendant’s conduct was unusually heinous, cruel, brutal, or

degrading to victim). As the trial court concluded, these

crimes were more depraved than the typical cases the guide-

lines were designed to cover, so that a departure based in part

on the proposed mutilation of Huff was warranted. Further,

we find no clear error in the trial court’s underlying factual

findings. John Price explicitly ordered Huff’s “well-dam-

aged carcass” in a taped conversation with the FBI.

b. Risk of harm to innocent third parties

[11] The trial court held that the potential for “injury

even to the point of death” to a multitude of unknown vic-

tims as a result of the defendants’ criminal activity was a fac-

tor not adequately considered in the applicable guidelines.

(R. 31 at 104.) The factual predicate to this holding was the

probability of injury to innocent bystanders had the scheme

to blow up Leon Capouano’s law office succeeded. The

Prices argue that any risk to bystanders was already taken

into account by the guidelines.

40a

We first examine the guidelines to determine whether the

district court correctly concluded that the danger to innocent

bystanders from a bombing was not adequately considered.

Reading U.S.S.G. § 2K1.4, we agree with the Prices that

the risk of harm to third parties is already incorporated into

the guideline applicable to property damage caused by

explosives. The presentence irivestigation reports explicitly

applied guideline § 2K1.4(a)(1), which provides for a

greater base offense level where the crime “created a sub-

stantial risk of death or serious bodily injury to any person

other than a participant in the offense...” (emphasis added).

This includes people caught inside a building as well as

bystanders injured in a blast. There may well be bombing

cases involving risks to third parties of a kind outside the

“heartland” of such cases. But the government points to

nothing in the record demonstrating that this is such a case.

As a result, we hold that the trial court misapplied the guide-

lines to the extent that the risk to third parties was double-

counted; the court’s reliance on the harm to innocent

bystanders was thus misplaced as a ground for departure.

c. Extreme psychological injury to Kenny Price

[12] The Prices also challenge the court’s reliance on its

finding of extreme psychological harm to several of the vic-

tims, most notably Kenny Price, as a basis for upward depar-

ture. The Prices do not question the court’s capacity to

increase their sentences where their victims suffered severe

psychological injury. See U.S.S.G. § 5K2.3. They only

argue that the evidence introduced by the government did not

show that Kenny Price or the other victims suffered an

“injury much more serious than that normally resulting”

from being a target for murder. See U.S.S.G. § 5K2.3, p.s.

4la

Our review, then, is limited to reviewing the court’s factual

findings for clear error.

To be sufficiently severe to warrant a departure, there

must be “a substantial impairment of the intellectual, psycho-

logical, emotional, or behavioral functioning of a victim”

likely to last for an extended duration and to manifest itself

by physical or psychological symptoms, or by changes in

behavior. U.S.S.G. § 5K2.3. See United States v. Wilson,

993 F.2d 214, 218 (11th Cir.1993) (stating that “[wJe that

feelings of foolishness, anger, or disappointment are so far

beyond the heartland of fraud offenses” to rise to the level of

extreme psychological harm). While we have never decided

the extent of harm needed to show “extreme psychological

injury,” other circuits have affirmed trial courts that departed

from the guidelines based on factual findings similar to those

in this case. See, e.g., United States v. Anderson, 5 F.3d 795,

804-805 (Sth Cir.1993) (upholding departure based on letter

of victim describing “her ordeal and its effects on her life’’),

cert. denied, —- US. —, 114 S.Ct. 1118, 127 L.Ed.2d

428 (1994); United States v. Miller, 993 F.2d 16, 21 (2d

Cir.1993) (upholding departure where victim was afraid to

answer phone, open mail, or stay in New York area).

Upon review of the presentence investigation reports

(PSIs), we cannot say that the trial court clearly erred in find-

ing that several of the victims suffered severe psychological

injuries of the type addressed by U.S.S.G. § 5K2.3. The

PSIs state that this ordeal was very traumatic for Kenny

Price. He attended counseling sessions, and at one point

contemplated suicide. Kenny suffered from depression, and

he stated that He no longer felt safe in his home or when he

went anywhere. IRS agent Dwight Huff stated in the PSIs

42a

that his whole family changed their lifestyle to be “extra cau-

tious of their surroundings,” and he also said that his children

were psychologically affected. Leon Capouano and David

Hawthorne installed security systems in their houses and also

restricted their activities outside their homes after the inci-

dents at issue in this case. We find no error in the trial

court’s reliance on this evidence of extreme psychological

injury as a basis for upward departure under U.S.S.G. §

5K2.3.

d. Reasonableness of the two-level upward departure

{13} Our final task in weighing the trial court’s decision

to depart is to evaluate the overall departure for reasonable-

ness. Dailey, 24 F.3d at 1325. The trial court did not sepa-

rately assign a departure level to each ground in ordering an

overall departure of two levels. In light of our determination

that one of the three grounds for the departure was already

considered in the relevant guidelines, we are unable to say

that the overall departure would have been the same based

only on the other two grounds. See Williams v. United

States, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 1120-21, 117

L.Ed.2d 341 (1992). Therefore, we vacate the sentence and

remand to the district court for resentencing consistent with

this opinion.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the Prices’ con-

victions; we VACATE their sentences and REMAND for

resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED

and REMANDED for RESENTENCING.

43a

APPENDIX C

44a

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 30, 1996

MIGUEL J. CORTEZ

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 94-6141 AND 94-6152

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID G. PRICE,

JOHN G. PRICE,

Defendants-Appellants.

On Appeal from the United States District Court for the

Middle District of Alabama

ON PETITION (S) FOR REHEARING AND

SUGGESTION (S) OF REHEARING EN BANC

(Opinion , UithCir, 19,

F.2d ).

Before: COX, Circuit Judge, RONEY and WOOD*,

Senior Circuit Judges

45a

PER CURIAM:

The Petition (s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure: Eleventh Circuit Rule 35-5), the

Suggestion (s) of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

(s) Edward R. Cox

UNITED STATES CIRCUIT JUDGE

ORD-42

(6/95)

*Honorable Harlington Wood, Jr., Senior Circuit Judge

for Seventh Circuit, sitting by designation.

46a

APPENDIX D

47a

FILED

U.S. COURT OF APPEAI.S

ELEVENTH CIRCUIT

JAN 30, 1996

MIGUEL J. CORTEZ

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 94-6141 AND 94-6152

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus,

DAVID G. PRICE,

JOHN G. PRICE,

Defendants-Appellants.

On Appeal from the United States District Court for the

Middle District of Alabama

ORDER:

( ) The motion of David G, Price and John G, Price _

for ( )stay ( ) recall and stay of the issuance of

the man date pending petition for writ of certiorari

is DENIED.

(X) The motion of David G, Price and John G, Price _

for ( ) stay (X) recall and stay of the issuance of

the mandate pending petition writ of certiorari is

GRANTED to and including April 2, 1996 __,

the stay to continue in force until the final dispo-

( )

48a

sition of the case by the Supreme Court, provided

that within the period above mentioned there shall

be filed with the Clerk of this Court the certificate

of the Clerk of the Supreme Court that the certio-

rari petition has been filed. The Clerk shall issue

the mandate upon the filing of a copy of an order

of the Supreme Court denying the writ, or upon

expiration of the stay granted herein, unless the

above mentioned certificate shall be filed with the

Clerk of this Court within that time.

The motion of

for a further stay of the issuance of the mandate is

GRANTED to and including ,

under the same conditions as set forth in the pre

ceding paragraph.

IT IS ORDERED that the motion of

for a further stay of the issuance of the mandate is

DENIED.

(s) Edward R. Cox

UNITED STATES CIRCUIT JUDGE

ORD-45

49a

APPENDIX E

50a

FIFTH AMENDMENT, U.S, CONSTITUTION

“No person shall be held to answer for a capital, or other-

wise infamous crime, unless On a presentment or indictment

of a grand jury, except in cases arising in the land or naval

forces or in the militia, when in actual service in time of war

or public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be

taken for public use, without just compensation.”

S5la

APPENDIX F

52a

SIXTH AMENDMENT, U.S. CONSTITUTION

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

state and district wherein the crime shall have been commit-

ted, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accu-

sation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.

53a

APTENDIX G

KIGHTH AMENDMENT, U.S. CONSTITUTION

1] " . > " ‘_ > >

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted

APPENDIX H

56a

MIDDLE DISTRICT OF ALABAMA

Local Rule 9

POST-VERDICT INTERROGATION OF JURORS

Attorneys, parties, or anyone acting for them or on their

behalf shall not, without filing formal petition therefor with

the Court and securing the Court’s permission, interrogate

jurors, either in person or in writing, in an attempt to deter-

mine the basis for any verdict rendered or to secure other

information concerning the deliberations of the jury or any

members thereof.

APPENDIX |

58a

U.S.S.G. GUIDELINES

§SK1.2() Fines for Individual Defendants

(a) The court shall impose a fine in all cases,except

where the defendant establishes that he is unable to

pay and is not likely to become able to pay any fine.

(b) Except as provided in subsections (f) and (i) below,

or otherwise required by statute, the fine imposed

shall be within the range specified in subsection (c)

below. If, however, the guideline for the offense in

Chapter Two provides a specific rule for imposing a

fine, that rule takes precedence over subsection (c)

of this section.

column A of the table below.

(2) Except as specified in (4) below, the max-

imum of the fine range is the amount shown

in column B of the table below.

(3) Fine Table

Offense A B

3 and below $100 $5,000

4-5 $250 $5,000

6-7 $500 $5,000

8-9 $1,000 $10,000

10-11 $2,000 $20,000

12-13 $3,000 $30,000

14-15 $4,000 $40,000

59a

16-17 $5,000 $50,000

18-19 $6,000 $60,000

20-22 $7,500 $75,000

23-25 $10,006 $100,000

26-28 $12,500 $125,000

29-31 $15,000 $150,000

32-34 $17,500 $175,000

35-37 $20,000 $200,000

38 and above $25,000 $250,000

(4) Subsection (c)(2), limiting the maximum

fine does not apply if the defendant is con-

victed under a statute authorizing (A) a maxi-

mum fine greater than $250,000, or (B) a fine

for each day of violation. In such cases, the

court may impose a fine up to the maximum

authorized by the statute.

(d) In determining the amount of the fine, the court

shall consider:

(1) the need for the combined sentence to reflect

the seriousness of the offense (including the

harm or loss to the victim and the gain to the

defendant), to promote respect for the law, to

provide just punishment and to afford ade-

quate deterrence;

(2) any evidence presented as to the defendant’s

ability to pay the fine (including the ability to

pay over a period of time) in light of his earn-

ing capacity and financial resources;

(3) the burden that the fine places on the defen-

60a

dant and his dependents relative to alter

native punishments;

(4) any restitution or reparation that the defendant

has made or is obligated to make;

(5) any collateral consequences of conviction,

including civil obligations arising from

the defendant’s conduct;

(6) whether the defendant previously has been

fined for a similar offense; and

(7) any other pertinent equitable considerations.

(e) The amount of the fine should always be suffi-

(f)

cient to ensure that the fine, taken together with

other sanctions imposed, is punitive.

If the defendant establishes that (1) he is not able

and, even with the use of a reasonable installment

schedule, is not likely to become able to pay all

or part of the fine required by the preceding pro-

visions, or (2) imposition of a fine would unduly

burden the defendant’s dependents, the court may

impose a lesser fine or waive the fine. In these

circumstances, the court shall consider alternative

Sanctions in lieu of all or a portion of the fine,

and must still impose a total combined sanction

that is punitive. Although any additional sanction

not proscribed by the guidelines is permissible,

community service is the generally preferable

alternative in such instances.

(g) If the defendant establishes that payment of the

fine in a lump sum would have an unduly severe

6la

impact on him or his dependents, the court should

establish an installment schedule for payment of

: the fine. The length of the installment schedule

' generally should not exceed twelve months, and

shall not exceed the maximum term of probation

authorized for the offense. The defendant should

be required to pay a substantial installment at the

time of sentencing. If the court authorizes a de-

fendant sentenced to probation or supervised

release to pay a fine on an installment schedule,

the court shall require as a condition of probation

or supervised release that the defendant pay the

fine according to the schedule. The court also

may impose a condition prohibiting the defendant

from incurring new credit charges or opening

additional lines of credit unless he is in compli-

ance with the payment schedule.

(h) If the defendant knowingly fails to pay a delin-

quent fine, the court shall resentence him in

accordance with 18 U.S.C. § 3614.

(i) Notwithstanding of the provisions of subsection

| (c) of this section, but subject to the provisions of

. subsection (f) herein, the court shall impose an

additional fine amount that is at least sufficient to

pay the costs to the government of any imprison-

ment, probation, or supervised release ordered.

Si lt

Commentary

Application Notes:

1. A fine may be the sole sanction if the guidelines do

not require a term of imprisonment. If, however, the

62a

fine is not paid in full at the time of sentencing, it is

recommended that the court sentence the defendant

to a term of probation, with payment of the fine as a

condition of probation. If a fine is imposed in addi-

tion to a term of imprisonment, it is recommended

that the court impose a term of supervised re-

lease following imprisonment as a means of enforc-

ing payment of the fine.

. In general, the maximum fine permitted by law as to

each count of conviction is $250,000 for a felony or

for any misdemeanor resulting in death; $100,000 for

a Class A misdemeanor; and $5,000 for any other

offense. 18 U.S.C. 9 3571(b)(3)-(7). However,

higher or lower limits may apply when specified by

statute. 18 U.S.C. § 3571(b)(1), (e). As an alterna-

tive maximum, the court may fine the defendant up to

the greater of twice the gross loss. 18 U.S.C. §

3571(b)(2), (d).

. The determination of the fine guideline range may be

dispensed with entirely upon a court determination

of present and future inability to pay any fine.

The inability of a defendant to post bail bond (having

otherwise been determined eligible for release) and

the fact that a defendant is represented by (or was

determined eligible for) assigned counsel are signif-

icant indicators of present inability to pay any

fine. In conjunction with other factors, they may also

indicate that the defendant is not likely to become

able to pay any fine.

. The Commission envisions that for most defendants,

the maximum of the guideline fine range from subsec-

63a

tion (c) will be at least twice the amount of gain or

loss resulting from the offense. Where, however, two

times either the amount of gain to the defendant or

the amount of loss caused by the offense exceed the

maximum of the fine guideline, an upward departure

from the fine guideline may be warranted.

Moreover, where a sentence within the applicable fine

' guideline range would not be sufficient to ensure both

| the disgorgement of any gain from the offense that

otherwise would not be disgorged (e.g. by restitution

or forfeiture) and an adequate punitive fine, an up-

ward departure from the fine guideline range may be

warranted.

5. Subsection (c)(4) applies to statutes that contain spe-

cial provisions permitting larger fines; the guidelines

do not limit maximum fines in such cases. These

: Statutes include, among others; 21 U.S.C. §§ 841(b)

and 960(b), which authorize fines up to $8 million in

} offenses involving the manufacture, distribution, or

i importation of certain controlled substances; 2]

: U.S.C. § 848(a), which authorizes fines up to $4

million in offenses involving the manufacture or dis-

tribution of controlled substances by a continuing

criminal enterprise; 18 U.S.C. § 1956(a), which

authorizes a fine equal to the greater of $500,000 or

two times the value of the monetary instruments or

funds involved in offenses involving money launder-

ing of financial instruments; 18 U.S.C § 1957(b)(2),

which authorizes a fine equal to two times the amount

of any criminally derived property involved in a

money laundering transaction; 33 U.S.C. § 1319c),

Je) AAA Deli es 0 cA Pe WS Ai cbaaas!

;

}

‘

64a

which authorizes a fine of up to $50,000 per day for

violations of the Water Pollution Control Act; 42

U.S.C. $ 6928(d), which authorizes a fine of up to

$50,000 per day for violations of the Resource Con-

servation Act; and 42 U.S.C. $ 7413(c), which

authorizes a fine of up to $25,000 per day for viola-

tions of the Clean Air Act.

6. The existence of income or assets that the defendant

failed to disclose may justify a larger fine than that

which otherwise would be warranted under §$5E1.2.

The court may base its conclusion as to this factor on

information revealing significant unexplained expen

ditures by the defendant or unexplained possession

of assets that do not comport with the defendant's

reported income. If the court concludes that the

defendant willfully misrepresented all or part of

his income or assets, it may increase the offense level

and resulting sentence in accordance with Chapter

Three, Part C (Obstruction).

7. Subsection (i) provides for an additional fine suffi-

cient to pay the costs of any imprisonment, probation,

or supervised release ordered, subject to the defen-

dant’s ability to pay as prescribed in subsection [f).

In making a determination as to the amount of any

fine to be imposed under this provision, the court

may be guided by reports published by the Bureau of

Prisons and the Administrative Office of the United

States Courts concerning average costs.

Historical Note: Effective November 1, 1987. Amended effective

January 15, 1988 (see Appendix C., amendment 54); November 1,

1989 (see Appendix C, amendments 280, 281, and 302); November 1,

1990 (see Appendix C. amendment 356); November 1, 1991 (see

Appendix C., amendment 384).

65a

APPENDIX J

66a

18 U.S.C. 3553

§ 3553 Imposition of a sentence

(a) Factors to be considered in imposing a sen-

tence.—The court shall impose a sentence sufficient, but

not greater than necessary, to comply with the purposes

set forth in paragraph (2) of this subsection. The court,

in determining the particular sentence to be imposed,

shall consider-

(1) the nature and circumstances of the offense and

the history and characteristics of the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just

punishment for the offense.

(B) to afford adequate deterrence to criminal

conduct;

the defendant; and

(D) to provide the defendant with needed educa-

tional or vocational training, medical care, or

other correctional treatment in the most effec-

tive manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for the applicable category of offense

committed by the applicable category of defen-

dant as set forth in the guidelines that are issued

by the Sentencing Commission pursuant to 28

U.S.C. 994(a)(2) that is in effect on the date the

defendant is sentenced;

(5) any pertinent policy statement issued by the

67a

994(a)(2) that is in effect on the date the defendant

is sentenced;

(6) the need to avoid unwarranted sentence dispari-

ties among defendants with similar records who

have been found guilty of similar conduct: and

(7) the need to provide restitution to any victims

of the offense.

(b) Application of guidelines in imposing a sen-

tence—The court shall impose a sentence of the kind,

and within the range, referred to in subsection (a)(4)

unless the court finds that there exists an aggravating

Or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines

that should result in a sentence different from that

described. In determining whether a circumstance was

adequately taken into consideration, the court shall

consider only the sentencing guidelines, policy state-

ments, and official commentary of the Sentencing

Commission. In the absence of an applicable sentenc-

ing guideline, the court shall impose an appropriate

sentence, having due regard for the Purposes set forth

in subsection (a)(2). In the absence of an applicable

sentencing guideline in the case of an offense other

than a petty offense, the court shall also have due

regard for the relationship of the sentence imposed to

sentences prescribed by guideiines applicable to simi-

lar offenses and offenders, and to the applicable poli-

cy statements of the Sentencing Commission.

Court, at the time of sentencing, shall state in open

court the reasons for its imposition of the particular

68a

sentence, and, if the sentence-

(1) is of the kind, and within the range, described in

subsection (a)(4), and that range exceeds 24 months,

the reason for imposing a sentence at a particular

point within the range; or

(2) is not of the kind, and within the range, described

in subsection (a)(4), the specific reason for the im-

position of a sentence different from that described.

If the court does not order restitution, or orders only

partial restitution, the court shall include in the state-

ment the reason therefor. The court shall provide a

transcription or other appropriate public record of the

court's statement of reasons to the Probation System,

and, if the sentence includes a term of imprisonment, to

the Bureau of Prisons.

(d) Presentence procedure for an order of notice.—Prior

to imposing an order of notice pursuant to section 3555,

the court shall give notice to the defendant and the

Government that it is considering imposing such an

order. Upon motion of the defendant or the Government,

Or On its Own motion, the court shall-

(1) permit the defendant and the Government to sub-

mit affidavits and written memoranda addressing

matters relevant to the imposition of such an order.

(2) afford counsel an opportunity in open court to

address orally the appropriateness of the imposition

of such an order; and

(3) include in its statement of reasons pursuant to

subsection (c) specific reasons underlying its deter-

minations regarding the nature of such an order.

;

}

69a

Upon motion of the defendant or the Government, or on

its Own motion, the court may in its discretion employ

any additional procedures that it concludes will not

unduly complicate or prolong the sentencing process.

(e) Limited authority to impose a sentence below a

Statutory minimum.—Upon motion of the Government.

the court shall have the authority to impose a sentence

below a level established by statute as minimum sen

tence so as to reflect a defendant's substantial assistance

in the investigation or prosecution of another person who

has committed an offense. Such sentence shall be

imposed in accordance with the guidelines and policy

statements issued by the Sentencing Commission pur-

suant to section 994 of title 28, United States Code.

APPENDIX K

Tila

18 U.S. C. 3572

§ 3572 Imposition of a sentence of fine and related matters

(a) Factors to be considered.—In determining whether to

impose a fine, and the amount, time for payment, and

method of payment of a fine, the court shall consider, in

addition to the factors set forth in section 3553(a)—

(1) the defendant’s income, earning capacity, and financial

resources;

(2) the burden that the fine will impose upon the defendant,

any person who is financially dependent on the defendant,

or any other person (including a government) that would be

responsible for the welfare of any person financially depen-

dent on the defendant, relative to the burden that alternative

punishments would impose;

(3) any pecuniary loss inflicted upon others as a result of

the offense;

(4) whether restitution is ordered or made and the amount

of such restitution;

(5) the need to deprive the defendant of illegally obtained

gains from the offense;

(6) whether the defendant can pass on to consumers or

other persons the expense of the fine; and

(7) if the defendant is an organization, the size of the orga-

nization and any measure taken by the organization to dis-

cipline any officer, director, employee, or agent of the orga-

nization responsible for the offense and to prevent a recur-

rence of such an offense.

(b) Fine not to impair ability to make restitution.—If, as

a result of a conviction, the defendant has the obligation to

make restitution to a victim of the offense, the court shall

impose a fine or other monetary penalty only to the extent

72a

defendant to make restitution.

fact that a sentence to pay a fine can subsequently be—

(1) modified or remitted under section 3573;

(2) corrected under rule 35 of the Federal Rules of Crimi-

nal Procedure and section 3742; or

(3) appealed and modified under section 3742; a judgment

that includes such a sentence is a final judgment for all

other purposes.

(d) Time, method of payment, and related items.—A

person sentenced to pay a fine or other monetary penalty

shall make such payment immediately, unless, in the inter-

est of justice, the court provides for payment on a date cer-

tain or in installments. If the court provides for payment in

installments, the installments shall be in equal monthly pay-

ments over the period provided by the court, unless the

court establishes another schedule. If the judgment permits

other than immediate payment, the period provided for shall

not exceed five years, excluding any period served by the

defendant as imprisonment for the offense.

(e) Alternative sentence precluded.—At the time a defen-

dant is sentenced to pay a fine, the court may not impose an

alternative sentence to be carried out if the fine is not paid.

(f) Responsibility for payment of monetary obligation

relating to organization.—If a sentence includes a fine,

special assessment, or other monetary obligation (including

interest) with respect to an organization, each individual

authorized to make disbursements for the organization has a

duty to pay the obligation from assets of the organization.

73a

If such an obligation is imposed on a director, officer, share-

holder, employee, or agent of an organization, payments

may not be made, directly or indirectly, from assets of the

organization, unless the court finds that such payment is

expressly permissible under applicable State law.

(g) Security for stayed fine.—If a sentence imposing a

fine is stayed, the court shall, absent exceptional circum-

stances (as determined by the court)—

(1) require the defendant to deposit, in the registry of the

district court, any amount of the fine that is due;

(2) require the defendant to provide a bond or other securi-

ty to ensure payment of the fine; or

(3)restrain the defendant from transferring or dissipating

assets.

(h) Delinquency.—A fine is delinquent if a payment is

more than 30 days late.

(i) Default.—A fine is in default if a payment is delin-

quent for more than 90 days. When a fine is in default,

the entire amount of the fine is due within 30 days after

notification of the default, notwithstanding any installment

schedule.

74a

APPENDIX L

75a

28 U. S. C. 994 (a) & (y)

§ 994. Duties of the Commission

(a) The Commission, by affirmative vote of at lease

four members of the Commission, and pursuant to its

rules and regulations and consistent with all pertinent

provisions of this title and title 18, United States Code.

shall promulgate and distribute to all courts of the

United States and to the United States Probation

System—

(1) guidelines, as described in this section, for use of

a sentencing court in determining the sentence to be

imposed in a criminal case, including—

(A) a determination whether to impose a sentence

to probation, a fine, or a term of imprisonment;

(B) a determination as to the appropriate amount

of a fine or the appropriate length of a term of

probation or a term of imprisonment;

of imprisonment should include a requirement that

the defendant be placed on a term of supervised

release after imprisonment, and, if so. the appro-

priate length of such a term;

(D) a determination whether multiple sentences to

terms of imprisonment should be ordered to run

concurrently or consecutively; and

(E) a determination under paragraphs (6) and (11)

of section 3563(b) of title 18:

xk *

76a

(y) The Commission, in promulgating guide-

lines pursuant to subsection (a)(1), may

include, as a component of a fine, the expect-

ed costs to the Government of any imprison-

ment, supervised release, or probation sen-

tence that is ordered.

(Added Pub.L. 98-473, Title II, § 217(a), Oct. 12, 1984, 98 Stat.

2019, and amended Pub.L. 99-217, § 8, Dec. 26, 1985, 99 Stat.

1728; Pub.L. 99-363, § 2, July 11, 1986, 100 Stat. 770; Pub.L. 99-

750, Title I, §§ 1006(b), 1008, Oct. 27, 1986, 100 Stat. 3214;

Pub.L. 99-646, §§ 6-b), 56, Nov. 10, 1986, 100 Stat. 3592, 3611;

Pub.L. 100-182, §§ 16b, 23, Dec. 7, 1987; 101 Stat. 1269, 1271;

Pub.L. 100-690; Title VII, §§ 7088, 7103(b), 7109, Nov. 18, 1988,

102 Stat. 4408, 4418, 4419; Pub.L.103-322, Title II, § 20403(b),

Tithe XXVIII, § 280005S(c)(4), Title XXXIII, § 33003(f(1), Sept.

13, 1994, 108 Stat. 1825, 2097, 2141.)

77a

APPENDIX M

78a

EXCERPTS FROM JURY INSTRUCTION

“([T]here is no illegal entrapment where a

defendant is ready and willing to break the law,” (R24-

1387);

“A defendant would not be a victim of illegal entrapment if

you should find beyond a reasonable doubt that the defen-

dant was ready, willing and able to commit the crime

charged in the indictment, whenever the opportunity afforded

it” (R24-1387);

“If the evidence in the case leaves you with a reasonable

doubt whether a defendant had any predisposition or intent to

commit the crime, except for inducement or persuasion on

the part of some government officer or agent, then it is your

duty to find that defendant not guilty.” (R24-1387).

“The government therefore, or however, must prove beyond

a reasonable doubt that a defendant was predisposed to com-

mit the crime. In deciding whether a defendant was predis-

posed to commit the crime you should consider all of the rel-

evant evidence before and after the initial contact by the gov-

ernment agent. Three of the factors you may consider in this

case are (1), was the defendant ready and eager to deal in

the charged crime or did the defendant exhibit reluctance?

(2),.You may consider post-crime statements, deeds or

actions on the part of either or both defendants. (3), Ask

yourself the question, did the evidence show that the defen-

dant was given an opportunity to back out of the transaction

and that he failed to do so and, as I stated to you earlier, you

VSSQ

DARA, ta ers A RB aS 82 eds Fe

79a

may also consider--or maybe I did not state it to you earlier--

you may also consider the defendants good character and

reputation, his lack of a prior criminal record, his susceptibil-

ity, his state of mind in deciding the issue of predisposition.”

(R24-1388, 1389);

“The government does not need to establish a reasonable

suspicion of the illegal activity before instituting a sting

operation” (R24-1391);

“The law, however, does not prohibit the government from

inducing bad people to commit crimes.” (R24-1391);

“The law requires that when defendant raises entrapment the

government proved beyond a reasonable doubt that the

defendant had the inclination to commit the crime with

which he is charged and that his criminal inclination did not

possibly result from the seduction of government agents.”

(R24-1391);

“Where the government simply gives the defendant an

Opportunity to commit the crime and the defendant accom-

modates by committing the crime, the entrapment claim is

unavailable.” (R24-1391, 1392);

The defendant’s objections appear in the record at R24-1259

through 1262, 1263 thru 1266, 1267, R20-1403, 1407, 1409,

1410, 1411.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.