Petition for Writ of Certiorari — Dixon v. United States

Bupre rie “

a a

vurt, U.S,

’ rr

ae A LJ

98723 APR 27 1999

No.

PhGE OF THE CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1998

JERRY T. DIXON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

PeTerR J. STRIANSE

Counsel of Record

TUNE, ENTREKIN & Wuirte, P.C.

Attorneys for Petitioner

21st Floor

First American Center

Nashville, Tennessee 37238

(615) 244-2770

152624 @] Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

QUESTION PRESENTED FOR REVIEW

Whether the due process defense of entrapment by

estoppel is available to defend against a violation of 18 U.S.C.

§ 1955?

il

TABLE OF CONTENTS

Page

Question Presented for Review ................. i

Fae EN os ie si ee i, il

SUDO OT Ute AGUS in gk iil

BO OT OOS io os hs oes eRe vi

fe, ene i Pann NL Rules ey l

simone of Juradiction 6 oe l

Constitutional and Statutory Provisions Involved .. |

StStORIGns OF ie eee ce eee 6

Reasons for Granting the Writ .................. 7

1. The Petition Should Be Granted Because The

Sixth Circuit Court Of Appeals Decided An

Important Constitutional Question In A Manner

That Conflicts With Relevant Decisions Of This

CG es Scientia ee 7

A. Petitioner Dixon Has A Fundamental

Constitutional Right To Present A

Conipiete Defense. 6.2... 000. 7

B. The Right to Have a Jury Hear a Complete

oc oink concen roe 13

C. The Due Process Right to a Fair Trial ... 15

COUCIIMION obi pik calc vcsen eee 17

4

i

TABLE OF CITED AUTHORITIES

Page

Cases:

California v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d

Ete COP Wi ls BOE CIDE) oo oc ick coven teen 7,8

Cox v. Louisiana, 379 U.S. 559 Pe ra a 7, 43

Crane v. Kentucky, 476 U.S. 683, 90 L. Ed. 2d 636.

eee i Re a 7

Duncan v. Louisiana, 391 U.S. 145 + Ee IER 15

Mathews v. United States, 485 U.S. 58, 99 L. Ed. 2d

ay See Ge LEU? so ree 7, 8,14

Pace v. State, 566 S.W.2d 861 (Tenn. 1978) ...... 12

Raley v. Ohio, 360 U.S. 423 (1959) .............. ‘oe

Sherman v. United States, 356 U.S. 369, 2 L. Ed. 2d

Samy 2 ee Oe, OEP EPSON) 65... o ss enc. 14

United States v. Austin, 915 F.2d 363 (8th Cir. 1990)

a warmer tbe gil Per ae ey i 15

United States v. Brady, 710 F. Supp. 290 (D. Colo.

og EEE ES REISER, Dae Sage netomat ERS NED at ii. iz. 15

United States v. Brebner, 951 F.2d 1017 (9th Cir. 1991)

Lae need cee wok wed hb Oh bk bee es 1]

iv

Cited Authorities

Page

United States v. Buehler, 793 F. Supp. 971 (E.D. Wash.

1992, aff'd, 8 F.3d 31 (9th Cir. 1993) .......... 16

United States v. Conley, 859 F. Supp. 909 (W.D. Pa.

SPEED Sb ckaveriestiveetueiitee RE, Say boy 30

United States v. Contento-Pachon, 723 F.2d 691 (9th

Ca. SO in eas ee a ae ea 14

United States v. Etheridge, 932 F.2d 318 (4th Cir. 1991)

yawn cay 06 eo VU SETR ERA h eC ehes cae e es 1]

United States v. Evans, 928 F.2d 858 (9th Cir. 1991)

CONS RWS ae PRIS WR eee bas ane ee aes 14

United States v. Hurst, 951 F.2d 1490 (6th Cir. 1991)

yah Ad 98.63 8 OR OMAR OK a ee ee a 8,9, 10

United States v. LaChapelle, 969 F.2d 632 (8th Cir.

SPORE ead ia ea eee ree 14

United States v. Levin, 973 F.2d 463 (6th Cir. 1992)

ah dard S bnkle ain RE eae auc ads teas 8, 13, 14, 15

United States v. Ramos, 961 F.2d 1003 (1st Cir. 1992)

United States v. Santiago-Godinez, 12 F.3d 722 (7th

LM MOBOd ce ketanserin ake ue 9,14

Cited Authorities

Page

United States v. Spires, 79 F.3d 464 (Sth Cir. 1996) :

eC ET OER POR OF Spy pr! eo Ee ae 11

Statutes:

Se Se BNO 55 8 5 ERs haw We eke Des 5, a5) 32

Ste PED . - pre eee te Rtas meray Ais 6

BO ee FOPMED: oie Corned Udi veka ee l

tenn. Code Amn. § 8-7-1039 2. ooo obo ed. 4,12

Tenn. Code Ann. § 8-18-106 ef seq .............. 12

United States Constitution:

Pass PU 55 gone cc ced viv ius ca, l

Other Authorities:

Colbert, 39 Stanford L. Rev. 1317 ............... 15

Colbert, 39 Stanford L. Rev. 1316 ............... 16

Sean Connelly, Bad Advice: The Entrapment by

Estoppel Doctrine in Criminal Law, 48 U. Miami L.

PVG CRP osc eishas ch elon 8, 16

vi

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Sixth Circuit Dated And Filed

PONIES Big COUR io 06 Fh och eas ro la

Appendix B — Order Of The United States District

Court For The Middle District Of Tennessee,

Northeastern Division Dated And Filed July 14, 1997

j

l

Petitioner Jerry T. Dixon respectfully requests that a writ

of certiorari be issued to review the judgment of the United

States Court of Appeals for the Sixth Circuit in this case.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is unreported. (App. A). The order of the

district court in United States vy. Jerry Dixon, No. 2-96-00014

(M.D. Tenn. 1997) is not reported. (App. B). (The district

court’s order refers to “reasons stated on the record.”

Appendix B also includes transcript excerpts which comprise

the district court’s “reasons.”’)

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Sixth Circuit (“Court of Appeals”) was entered on January

27, 1999. This petition for writ of certiorari was filed within

90 days of the entry of the judgment of the Court of Appeals

for the Sixth Circuit.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in relevant part: “[n]o person shall .. . be deprived

of life, liberty, or property, without due process of law.”

2

18 U.S.C. § 1955 provides:

Prohibition of illegal gambling businesses

(a) Whoever conducts, finances, manages,

supervises, directs, or owns all or part of an illegal

gambling business shall be fined under this title

or imprisoned not more than five years, or both.

(b) As used in this section —

(1) “illegal gambling business” means a gambling

business which —

(1) is a violation of the law of a State or political

subdivision in which it is conducted;

(ii) involves five or more persons who conduct,

finance, manage, supervise, direct, or own all or

part of such business; and

(iii) has been or remains in substantially

continuous operation for a period in excess of

thirty days or has a gross revenue of $2,000 in

any single day.

(2) “gambling” includes but is not limited to pool-

selling, bookmaking, maintaining slot machines,

roulette wheels or dice tables, and conducting

lotteries, policy, bolita or numbers games, or

selling chances therein.

(3) “State” means any State of the United States,

the District of Columbia, the Commonwealth of

ee ee e

3

Puerto Rico, and any territory or possession of the

United States.

(c) If five or more persons conduct, finance,

manage, supervise, direct, or own all or part of a

gambling business and such business operates for

two or more successive days, then, for the purpose

of obtaining warrants for arrests, interceptions, and

other searches and seizures, probable cause that

the business receives gross revenue in excess of

$2,000 in any single day shall be deemed to have

been established.

(d) Any property, including money, used in

violation of the provisions of this section may be

seized and forfeited to the United States. All

provisions of law relating to the seizure, summary,

and judicial forfeiture procedures, and

condemnation of vessels, vehicles, merchandise,

and baggage for violation of the customs laws; the

disposition of such vessels, vehicles, merchandise,

and baggage or the preceeds from such sale; the

remission or mitigation of such forfeitures; and

the compromise of claims and the award of

compensation to informers in respect of such

forfeitures shall apply to seizures and forfeitures

incurred or alleged to have been incurred under

the provisions of this section, insofar as applicable

and not inconsistent with such provisions. Such

duties as are imposed upon the collector of

customs or any other person in respect to the

seizure and forfeiture of vessels, vehicles,

merchandise, and baggage under the customs laws

shall be performed with respect to seizures and

4

forfeitures of property used or intended for use in

violation of this section by such officers, agents,

or other persons as may be designated for that

purpose by the Attorney General.

(e) This section shall net apply to any bingo game,

lottery, or similar game of chance conducted by

an organization exempt from tax under paragraph

(3) of subsection (c) of section 501 of the Internal

Revenue Code of 1954, as amended, if no part of

the gross receipts derived from such activity inures

to the benefit of any private shareholder, member,

or employee of such organization except as

compensation for actual expenses incurred by him

in the conduct of such activity.

Tenn. Code Ann. § 8-7-103 provides:

Each district attorney general:

(1) Shall prosecute in the courts of the district all

violations of the state criminal statutes and

perform all prosecutorial functions attendant

thereto, including prosecuting cases in a municipal

court where the municipality provides sufficient

personnel to the district attorney general for that

purpose;

(2) Shall prosecute in the federal court all criminal

cases removed from a state court in the district to

any inferior court;

(3) May cooperate and assist, upon the request or

direction of the attorney general and reporter, in

5

the bringing, prosecution, defense, preparation,

and trial of all cases in the circuit and chancery

courts in which the attorney general and reporter

is required to appear for the protection of the state

or the public interest;

(4) Shall give an opinion, without charge,

whenever called upon by any coumy officer in the

district, upon a question of criminal law relating

to the duties of the county officer’s office;

(5) Shall submit to the office of executive director

for the district attorneys general conference within

ninety (90) days after the end of each fiscal year,

a written report specifying:

(A) Each source from which funds were received

by the office of the district attorney general during

the fiscal year;

(B) The amount of funds received from each

source; and

(c) The disposition of such funds.

(6) Shall have discretion in the performance of

duties and responsibilities in the allocation of

resources available to such district attorney

general, any other provision of law

notwithstanding; and

(7) Shall have authority to delegate the foregoing

duties and responsibilities to an assistant district

attorney general.

6

STATEMENT OF THE CASE

In April of 1992, agents of the Federal Bureau of

Investigation and agents of the Tennessee Bureau of

Investigation began investigating Petitioner Jerry T. Dixon

(hereafter “Petitioner Dixon”) for the alleged distribution of

gambling devices. The investigation continued until April

21, 1993, when, pursuant to a search warrant, the agents

conducted a “raid,” seizing the alleged gambling devices and

other associated evidence.

Petitioner Dixon was indicted on November 23, 1996. A

Superseding Indictment followed on December 13, 1996. On

March 24, 1997, the day before the trial was set to begin, the

government filed a motion in limine to prevent Petitioner

Dixon from introducing evidence regarding the defense of

entrapment by estoppel.

On May 30, 1997, Defendant Dixon entered a conditional

plea of guilty to operating an illegal gambling business (Count

One, 18 U.S.C. § 1955), and engaging in an unlawful

monetary transaction (Count Thirteen, 18 U.S.C. § 1957),

preserving his right to challenge the district court’s decision

to bar the defense of entrapment by estoppel. Petitioner Dixon

was subsequently sentenced to twenty-four (24) months in a

federal correctional facility.

On August 25, 1997, pursuant to his conditional plea of

guilty, Petitioner Dixon timely filed notice of his appeal of

the district court’s order granting the government’s motion

in limine barring the defense of entrapment by estoppel. The

Court of Appeals reversed the district court’s decision to

exclude evidence relating to a good faith defense as to the

specific intent crime of money laundering but affirmed the

7

district court’s decision to prohibit Petitioner Dixon from

offering an entrapment by estoppel defense as to the general

intent crime of gambling.

REASONS FOR GRANTING THE WRIT

I.

THE PETITION SHOULD BE GRANTED BECAUSE

THE SIXTH CIRCUIT COURT OF APPEALS

DECIDED AN IMPORTANT CONSTITUTIONAL

QUESTION IN A MANNER THAT CONFLICTS WITH

RELEVANT DECISIONS OF THIS COURT.

Petitioner Dixon submits that the Court of Appeals’

decision is contrary to the letter and spirit of: Crane v.

Kentucky, 476 U.S. 683 (1986); California v. Trombetta, 467

U.S. 479 (1984); Mathews v. United States, 485 U.S. 58

(1988); Raley v. Ohio, 360 U.S. 423 (1959); and Cox v.

Louisiana, 379 U.S. 559 (1965).

A. Petitioner Dixon Has A Fundamental Constitutional

Right To Present A Complete Defense.

This Court has unanimously stated that a defendant has

“a fundamental constitutional right to a fair opportunity to

present a defense.” Crane v. Kentucky, 476 U.S. 683, 687,

90 L. Ed. 2d 636, 643, 106 S. Ct. 2142 (1986). The Crane

Court cited California v. Trombetta which states:

Under the Due Process Clause of the Fourteenth

Amendment, criminal prosecutions must comport

with prevailing notions of fundamental fairness.

We have long interpreted this standard of fairness

8

to require that criminal defendants be afforded a

meaningful opportunity to present a complete

defense. )

467 U.S. 479, 485, 81 L. Ed. 2d 413, 419, 104 S. Ct. 2528

(1984).

Therefore,

{a]s a general proposition a defendant is entitled

to an instruction as to any recognized defense for

which there exists evidence sufficient for a

reasonable jury to find in its favor.

Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54,

61, 108 S. Ct. 883 (1988) (citations omitted); See United

States v. Hurst, 951 F.2d 1490, 1499 (6th Cir. 1991).'

Although the defendant’s initial burden requires

presenting more than a scintilla of evidence, the

evidence need not be so substantial that if

uncontroverted, a court may find entrapment as a

matter of law.

1. [T]he United States Supreme Court and several circuit

courts have recognized the criminal doctrine of

entrapment by estoppel which is based upon

fundamental notions of fairness embodied in the Due

Process Clause of the Constitution

United States v. Levin, 973 F.2d 463, 468 (6th Cir. 1992); See, Sean

Connelly, Bad Advice: The Entrapment by Estoppel Doctrine in

Criminal Law, 48 U. Miami L. Rev. 627 (1994).

9

United States v. Santiago-Godinez, 12 F.3d 722, 727-728 (7th

Cir. 1993) (citations omitted).

In Hurst, the defendant was allowed to admit evidence

that she relied on the inaction of state compliance personnel

in running an illegal bingo hall. 951 F.2d at 1499. However,

the trial court rejected the defendant’s request for a jury

instruction on the defense of entrapment by estoppel. The

Court of Appeals affirmed, stating “there is simply no

evidence that the defendants were ever told by state officials

that their actions were legal.” Jd.

In the instant case, however, there is considerable

evidence that the actions of state officials caused Petitioner

Dixon to believe that his conduct was legal. For example, at

one point in the early 1980’s, Petitioner Dixon became

concemed about the legality of his video poker machines

following raids in the area. Petitioner Dixon removed several

of the machines from their public locations. To determine if

the machines posed a problem, Petitioner Dixon sought the

advice of District Attorney Tommy Thompson. At a meeting

with the District Attorney, Petitioner Dixon asked if he should

return the machines to their public locations, specifically,

the Macon County Country Club. According to Petitioner

Dixon: “(Tommy Thompson] said, well, it would be okay.

He said, I don’t see anything more wrong with poker machines

than I do the poker games they have out there.” Because

Petitioner Dixon had personally demonstrated the operation

of a video poker machine to the District Attorney and because

he believed it was common knowledge that pay-offs occurred

on the machines, Petitioner Dixon relied on the advice of the

District Attorney and returned the machines to their public

locations.

10

Petitioner Dixon received similar advice from Assistant

District Attorney John Wootten, who informed him that the

machines were “all right,” despite the fact that Mr. Wootten

assumed that the machines were “paying off.” At the time,

Mr. Wootten also served as President of the country club

where several machines were located and where pay-offs were

common knowledge. Also aware that pay-offs were common

knowledge, Petitioner Dixon believed that machines that

“paid off” were, in the words of the District Attorney, “okay.”

In Hurst, after finding no evidence that state officials

instructed the defendants as to the legality of their conduct,

the Court of Appeals for the Sixth Circuit wrote

[m]oreover, the statements allegedly relied upon

were made by state officials relating to state law,

while the defendants were charged with violations

of federal law.

951 F.2d at 1499.7 In fact, the Dixon Court observed:

In Hurst, this court clearly stated, with respect to

the same offense at issue in this case, that the

defense of entrapment by estoppel is not available

to a defendant who relies upon the advice of state

officials. Considering the fact that an element of

18 U.S.C. § 1955 is a violation of state law, our

holding in Hurst seems somewhat harsh; as Dixon

argues, where else would an individual turn of

advice as to the legality of particular actions under

State law?

2. Unlike those members of society who have formal legal

training, the average layperson does not differentiate between state

and federal law and state and federal officials.

1]

(Appendix A, p. 6). Other Circuits have also held that, when

asserting the defense of entrapment by estoppel with regard

to a federal crime, the defendant must have reasonably relied

on the advice of a federal, not state, official. See United States

v. Spires, 79 F.3d 464, 466-467 (Sth Cir. 1996); United States

v. Brebner, 951 F.2d 1017, 1026 (9th Cir. 1991 ); United States

v. Etheridge, 932 F.2d 318, 320-321 (4th Cir. 1991). There

is, however, an exception to this general rule, which applies

to Petitioner Dixon.

In United States v. Brady, 710 F. Supp. 290, 294 (D.

Colo. 1989), the court held that “it would violate due process

to convict Brady of this offense in light of the fact that the

defendant’s conduct conformed to the judge’s statement of

law.” See Etheridge, 932 F.2d at 323 (Mullen, J., dissenting)

(“I find the reasoning in [Brady] persuasive. . . .”). The Brady

court based its decision on the authority and duty of the state

judge “to interpret and apply” federal law, especially with

“regard to this particular statute [felon in possession of

firearm} because state convictions trigger the applicability

of the law.” Jd. at 295. The court also noted that in Colorado,

civil officers are required to take an oath to support the United

States Constitution. /d. In United States vy. Conley, the court

extended the reasoning in Brady to all state and local officials:

The Government asks that the Court apply a per

se rule to deny the defense [of entrapment by

estoppel] and hold that the federal government

cannot be estopped from enforcing its criminal

laws by the conduct of state or local officials. The

Court declines to adopt such a per se rule. The

Government can point to numerous authorities

holding or urging that the due process clause can

be invoked only in reliance upon federal

government conduct.

12

The focus of the Due Process inquiry into

fundamental fairness and substantial justice,

however, should not be arbitrarily constrained by

concepts taken from other contexts such as

estoppel, actual authority or deterrence.

859 F. Supp. 909, 932 (W.D. Pa. 1994) (citations omitted).

The Conley Court concluded that “the Due Process clause

may still invalidate certain prosecutions under Section 1955

solely on the basis of reliance upon advice from state or local

officials.” Jd.

The reasoning in Brady and Conley is applicable to

Petitioner Dixon. In Tennessee, District Attorneys are

required to take an oath to support the Constitution of the

United States. See Tenn. Code Ann. § 8-18-106 et seg. The

District Attorney is “a constitutional officer” and “a quasi

judicial officer.” Pace v. State, 566 S.W.2d 861, 865 (Tenn.

1978) (Henry, C.J., concurring). A District Attorney’s

knowledge of federal law is evident in the District Attorney’s

statutory duty to “[p]rosecute in the federal court all criminal

cases removed from a state court ...” and duty to

“(plarticipate ... in joint efforts with other state, local or

federal officials or agencies. ...” Tenn. Code Ann. § 8-7-

103. Finally, Petitioner Dixon is entitled to rely on the

assurances of a District Attorney because, as in Brady and

Conley, a violation of state law is a mandatory predicate for

a violation of the relevant federal statute. See 18 U.S.C.

§ 1955(b)(1). To violate the federal gambling statute,

Petitioner Dixon had to be in violation of a law of the state

of Tennessee. In Conley, the court stated:

ee es ne

RS Ne ata ere ni anatase bball

13

One element of a Section 1955 violation is that

the business operate in violation of state or local

law.

If a defendant who intended to maintain gambling

devices relied on advice from an appropriate state

or local official that the conduct was legal, without

complicity or corruption on the part of the

government official, the Due Process clause would

render a state prosecution a nullity. The Court fails

to see how a prosecution founded on the same

conduct and the same state law would be rendered

fundamentally fair because it was instituted by

federal authorities.

859 F. Supp. at 932-933. After a review of the facts, however,

the court determined that the defendants were not misled by

government officials. Jd. at 936.

Based on the words and actions of District Attorney

Tommy Thompson and Assistant District Attorney John

Wootten, Petitioner Dixon did not believe he was violating

either state or federal law.

B. The Right to Have a Jury Hear a Complete Defense

Extensive evidence exists upon which a reasonable jury

could find that Petitioner Dixon relied on a government

announcement that his conduct was legal. See United States

v. Levin, 973 F.2d 463, 468 (6th Cir. 1992). Therefore, based

on fundamental fairness and the Due Process clause, the

Petitioner Dixon should be allowed to present all of the

14

evidence relating to the words and actions of state officials

in support of his defense. After hearing the evidence, the jury

can decide if Petitioner Dixon relied on the authorities’ advice

and, if so, whether his reliance was reasonable.

“(T]he issue of whether a defendant has been entrapped

is for the jury as part of its function of determining the guilt

or innocence of the accused.” Sherman v. United States, 356

U.S. 369, 377, 2 L. Ed. 2d 848, 854, 78 S. Ct. 819 (1958);

See Mathews, 485 U.S. at 63, 99 L. Ed. 2d at 61. The defense

of entrapment by estoppel, a heavily fact-oriented inquiry,

raises a question for a jury. United States v. Evans, 928 F.2d

858, 860 (9th Cir. 1991); See United States v. Levin, 973

F.2d 463, 467 (6th Cir. 1992); United States v. LaChapelle,

969 F.2d 632, 637-38 (8th Cir. 1992); United States v. Ramos,

961 F.2d 1003, 1006 (lst Cir. 1992); United States v.

Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993) (“This

is because whether entrapment occurred is a factual issue;

the defense of which is intertwined with the issue of intent

and is often based on credibility determinations, which are

traditionally reserved for jury resolution.”). “Factfinding is

usually a function of the jury, and the trial court rarely rules

on a defense as a matter of law.” United States v. Contento-

Pachon, 723 F.2d 691, 693 (9th Cir. 1984) (citations omitted).

Professor Colbert has argued that, when a court prohibits

a jury from hearing a defense,

it jeopardizes the accused’s “inherent and

invaluable” right to be judged by a jury that has

had the opportunity to hear and consider a

complete defense to a charge.

15

39 Stanford L. Rev. at 1317 (quoting Duncan v. Louisiana,

: 391 U.S. 145, 152 (1968)). Professor Colbert believes that

/ precluding a complete defense “seriously erodes (if not

completely nullifies) the crucial role of the jury as factfinder”

and “denigrates the jury’s role in the criminal justice system.”

Id. at 1274 and 1318. Finally, the Professor argues:

The government’s use of the broad motion in

limine demonstrates a lack of trust and confidence

in the people who serve as jurors. The motion

attempts to restrict the factual basis for a decision

by asking the court to prevent evidence from ever

reaching the jury. Such tactics undermine the bond

of trust that exists between the government and

the people, and severely impairs the integrity of

the jury system. Public confidence in the fairness

of a criminal trial is diminished, and, most

seriously, the democratic process is thwarted.

Id. at 1326.

C. The Due Process Right to a Fair Trial

The foundation of the entrapment by estoppel defense is

two familiar Supreme Court cases, Raley v. Ohio, 360 U.S.

423 (1959) and Cox v. Louisiana, 379 U.S. 559 (1965). “Cox

and Raley make clear that the purpose of the [defense] is to

prevent fundamental unfairness and injustice.” Brady, 710

F. Supp. at 295. The two cases, however, never use the word

“estoppel,” as the “doctrine stems from the due process

clause.” Jd.; See Levin, 973 F.2d at 468 (entrapment by

estoppel defense based on fundamental notions of fairness

embodied in the Due Process Clause of the Constitution);

United States v. Austin, 915 F.2d 363, 366 (8th Cir. 1990).

16

One commentator has argued that, in the case of an offense

involving a specific intent, such as money laundering,

there is no need for a constitutional entrapment

by estoppel defense (predicated on the need to

avoid fundamental unfairness) because a defendant

who is affirmatively misled will lack the requisite

criminal intent.

Sean Connelly, Bad Advice: The Entrapment by Estoppel

Doctrine in Criminal Law, 48 U. Miami L. Rev. 627, 641

(1994); See United States v. Buehler, 793 F. Supp. 971, 975

(E.D. Wash. 1992, aff'd, 8 F.3d 31 (9th Cir. 1993)) (“When

specific intent is an element of an offense, the fact that a

defendant reasonably believes he is not violating any law

would be a defense.”). In other words, if Petitioner Dixon

believed that the proceeds of his business were not criminally

derived based of the words and actions of state officials, then

he could not “knowingly” launder the proceeds.’ To prohibit

Petitioner Dixon from offering evidence as to his intent would

jeopardize his due process right to a fair trial. See Colbert,

39 Stanford L. Rev. at 1316 (“The use of the motion in limine

to exclude an entire defense poses serious threats to an

accused’s right to a fair trial.”).

3. If a defendant believes erroneous advice regarding

the legality of the offense conduct, whether the advice

comes from the government, from a lawyer, or in a

dream, the defendant is not guilty of the crime.

United States v. Conley, 859 F.Supp. 909, 929 (W.D. Pa. 1994).

17

CONCLUSION

For reasons stated herein, the Petitioner respectfully

requests that his petition for writ of certiorari be granted.

Respectfully submitted,

PETER J. STRIANSE

Counsel of Record

TUNE, ENTREKIN & WHITE, P.C.

Attorneys for Petitioner

21st Floor

First American Center

Nashville, Tennessee 37238

(615) 244-2770

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

DATED AND FILED JANUARY 27, 1999

No. 97-6088

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JERRY T. DIXON,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF TENNESSEE

OPINION

Before: JONES and COLE, Circuit Judges; and

MARBLEY, District Judge.*

R. GUY COLE, JR., Circuit Judge. Defendant-

Appellant Jerry T. Dixon appeals his conviction following

his conditional guilty plea to one count of operating an illegal

* The Honorable Algenon L. Marbley, United States District

Judge for the Southern District of Ohio, sitting by designation.

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Appendix A

gambling business, in violation of 18 U.S.C. § 1955; and one

count of engaging in an unlawful monetary transaction, in

violation of 18 U.S.C. § 1957. Specifically, Dixon challenges

the district court’s grant of the government’s motion in limine

which barred Dixon from presenting evidence regarding his

alleged reliance upon the advice of state officials that his

involvement in gambling was legal. For the reasons that

follow, we REVERSE the judgment of the district court and

REMAND for further proceedings in accordance with this

opinion.

Since 1969, Dixon has been in the amusement machine

business. Dixon began placing video poker machines in clubs

and businesses in 1980. The object of playing a video poker

machine is to win points and then be reimbursed with cash

for the accumulated points. Dixon placed video poker

machines in the Macon County Country Club, a club that

was frequented by various state law enforcement officials

including District Attorney Tommy Thompson and Assistant

District Attorney Johnny Wooten.

In the early 1980s, local law enforcement agents seized

several video poker machines in the Macon County area, none

of which belonged to Dixon. As a result of these seizures,

Dixon became concerned about the legality of his machines

and removed them from the various clubs at which they were

located. In addition, Dixon asked Thompson whether the

machines were legal. According to Dixon, Thompson replied,

“Well, it would be okay. .. . I don’t see anything more wrong

with poker machines than I do the poker games they have

He ts a wi aan Sie!

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Appendix A

out there.” Dixon further stated that he was never informed

that the video poker machines were illegal; in fact, both

Thompson and Wooten told him that the machines were “okay

to have.” Dixon admitted that he never discussed with

Thompson or Wooten his practice of paying players for

accumulated points; however, according to Dixon, it was

general knowledge that cash payouts took place, and Wooten

had knowledge of that practice. In addition, Dixon had

demonstrated to Thompson how to play a video poker

machine. Believing that the machines were legal, Dixon

returned the video poker machines to the clubs.

The Federal Bureau of Investigation began investi gating

Dixon in 1992 for illegal gambling activities. In April of 1993,

agents executed a search warrant and seized Dixon’s gambling

machines. A federal grand jury returned a fourteen-count

indictment, charging Dixon with various gambling and money

laundering offenses on November 22, 1996.' Count One

alleged that Dixon operated an illegal gambling business, in

violation of 18 U.S.C. § 1955.2 Counts Two through Eleven

charged Dixon with conducting financial transactions

involving the proceeds of unlawful activity, in violation of

18 U.S.C. § 1956. Count Thirteen alleged that Dixon

conducted a financial transaction involving over $10,000 in

proceeds from an unlawful activity, in violation of 18 U.S.C.

1. No explanation was given for the three-year delay.

2. Title 18 U.S.C. § 1955 defines an illegal gambling business

as a gambling business which “is a violation of the law of a State or

political subdivision in which it is conducted.” The state law that

was allegedly violated in this case is Tennessee Code Annotated

§ 39-17-504.

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Appendix A

§ 1957. Count Twelve sought forfeiture of the monies

involved in Counts Two through Eleven, and Count Fourteen

sought forfeiture of the monies involved in Count Thirteen,

pursuant to 18 U.S.C. § 982. On December 13, 1996, a

superseding indictment was handed down for the purpose of

correcting typographical errors in the original indictment.

The district court scheduled Dixon’s trial to begin in

March 1997. Prior to trial, Dixon filed a brief setting forth

his intent to introduce evidence in support of his defense of

“entrapment by estoppel.”? The government then filed a

motion in limine asking the court to prohibit Dixon from

introducing evidence related to “any statements allegedly

made by any state or local law enforcement official

concerning the legality or illegality of the defendant's

machines or business.” The district court continued the trial

and set an evidentiary hearing for an offer of proof regarding

Dixon’s entrapment by estoppel defense. At the hearing, the

court heard the testimony of Dixon, Thompson, Wooten,

Dewey Ferguson (the sheriff of Macon County), Buford Wix

(the police chief of the city of Lafayette), and Jerry Dallas (a

Lafayette police officer). Dixon further argued that the

evidence regarding his reliance on the advice of state officials

was also relevant with respect to his defense of good faith to

the money laundering charges. Following the hearing, the

district court granted the government’s motion in limine,

stating briefly that:

3. The defense of entrapment by estoppel applies when a

defendant, relying upon the advice of an authorized government

official, believes that particular conduct is legal. See United States

v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991).

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Appendix A

the proffered testimony that you have outlined in

support of this entrapment by estoppel [defense]

is simply not an applicable defense in this case

and this court will not permit it. And based on what

is now apparent from the superseding indictment

that it can’t come in the back door in support of a

claim of good faith, a defense in good faith with

regard to this money laundering count.

Thereafter, Dixon entered a plea of guilty to Counts One

and Thirteen, in exchange for the government’s dismissal of

the remaining counts. The plea agreement specifically

preserved Dixon’s right to appeal the district court’s grant of

the government’s motion in limine. The district court

sentenced Dixon to twenty-four months’ incarceration. This

appeal followed.

The sole issue on appeal is whether the district court erred

in granting the government’s motion in limine which

prohibited Dixon from presenting evidence regarding his

reliance on the advice of state officials that his conduct was

legal. We review a district court’s decision to exclude

evidence pursuant to a motion in limine for an abuse of

discretion. See United States v. Phibbs, 999 F.2d 1053, 1078

(6th Cir. 1993).

A.

The United States Supreme Court, as well as numerous

circuit courts, have recognized the defense of entrapment by

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Appendix A

estoppel. See, e.g., Cox v. Louisiana, 379 U.S. 559 (1965).

As stated, this defense applies “when an authorized

government official tells the defendant that certain conduct

is legal and the defendant believes the official.” See United

States v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991). The

defense of entrapment by estoppel is a constitutional defense

“based upon fundamental notions of fairness embodied in

the Due Process Clause.” United States v. Levin, 973 F.2d

463, 468 (6th Cir. 1992).

The initial requirement for a defense of entrapment by

estoppel is that the assurances upon which the defendant

relied were made by an “authorized government official,”

which, in the case of a federal prosecution, must be a federal

official. See United States v. Hurst, 951 F.2d 1490, 1499 (6th

Cir. 1991); see also Tinsley v. United States, 1997 WL 63156

at *5 (6th Cir. Feb. 12, 1997); United States v. Spires, 79

F.3d 464, 466-67 (Sth Cir. 1996); United States v. Achter, 52

F.3d 753, 755 (8th Cir. 1995); United States v. Hall, 1994

WL 408188 at *3 (6th Cir. Aug. 3, 1994); Brebner, 951 F.2d

at 1026. In Hurst, the defendants were charged with violations

of 18 U.S.C. § 1955 and asserted the defense of entrapment

by estoppel based upon the alleged statements and actions of

state officials. See 951 F.2d at 1499. This court upheld the

district court’s refusal to give a jury instruction on entrapment

by estoppel, stating that the defense was not available because

there was no evidence that the defendants were told by state

officials that their conduct was legal and, “[m]oreover, the

statements allegedly relied upon were made by state officials

relating to state law, while the defendants were charged with

violations of federal law.” Jd.

debs 2

eo want er ls oth alls REPS.

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Appendix A

The circumstances of the present case are very similar to

the circumstances of Hurst. Dixon, however, relies upon two

district court cases which held that the assurances of state

officials could, in fact, serve as the basis for the defense of

entrapment by estoppel in a federal prosecution. See United

States v. Conley, 859 F. Supp. 909, 932 (W.D. Pa. 1994);

United States v. Brady, 710 F. Supp. 290, 294 (D. Colo. 1989).

Dixon’s reliance is misplaced. In Hurst, this court clearly

stated, with respect to the same offense at issue in this case,

that the defense of entrapment by estoppel is not available to

a defendant who relies upon the advice of state officials.

Considering the fact that an element of 18 U.S.C. § 1955 isa

violation of state law, our holding in Hurst seems somewhat

harsh; as Dixon argues, where else would an individual turn

for advice as to the legality of particular actions under state

law? Recognizing that conundrum, the Hurst court noted:

One of the purposes of section 1955 was to aid in

the enforcement of state gambling laws where state

enforcement was corruption of state officials.

Allowing a state official’s alleged complicity in

illegal activities to void the convictions here would

violate the intent of Congress in enacting section

1955 and distort the clear due process doctrine

set forth in [Supreme Court cases discussing

entrapment by estoppel].

951 F.2d at 1499-1500 (citation omitted). Accordingly, we

are bound to follow Hurst’s holding that entrapment by

estoppel is not an available defense to violations of § 1955

when a defendant relies upon the advice of state officials.

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Appendix A

B.

Our analysis, however, does not stop here. The district

court’s ruling had the effect of excluding all evidence

regarding Dixon’s reliance upon the advice of state officials.

Dixon argued in the district court, on an alternative basis,

that the proffered evidence was also relevant to his defense

of good faith to the charges of money laundering. The district

court rejected this argument, apparently accepting the

government's contention that it was a “back door” method

of admitting the evidence. We disagree.

Dixon was charged with ten counts of money laundering,

in violation of 18 U.S.C. § 1956(a)(1)(A)(i). To prove that a

defendant violated 18 U.S.C. § 1956(a)(1)(A)(i), the

government must establish that the defendant: (1) conducted

a financial transaction that involved the proceeds of unlawful

activity; (2) knew the property involved was the proceeds of

an unlawful activity; and (3) intended to promote that

unlawful activity. See United States v. Haun, 90 F.3d 1096,

1100 (6th Cir. 1996), cert. denied, 117 S. Ct. 691 (1997).

Thus, in contrast to the federal gambling statute, which is a

general intent crime, the knowledge requirement of 18 U.S.C.

§ 1956 makes it a specific intent crime, subject to a defense

that a defendant lacked the requisite knowledge.

We first note that Dixon is not arguing that the defense

of entrapment by estoppel is applicable to the money

laundering charges, as that defense is generally not applicable

to a specific intent crime. See Sean Connelly, Bad Advice:

The Entrapment by Estoppel Doctrine in Criminal Law, 48

U. Miami L. Rev. 627, 641 (1994) (stating that “there is no

te sae ste ral

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Appendix A

need for a constitutional entrapment by estoppel defense

(predicated on the need to avoid fundamental unfairness)

because a defendant who is affirmatively misled will lack of

the requisite criminal intent”).* Although Dixon is precluded

from raising the defense of entrapment by estoppel, the

evidence proffered by Dixon is relevant for another purpose

Dixon's state of mind with respect to the money laundering

charges. Dixon’s state of mind is an element of the offense:

thus, the government must prove that Dixon knew that the

property involved was the proceeds of an unlawful activity.

Dixon’s belief regarding the lawfulness of the video poker

machines, including his reliance on the advice of state

officials, is relevant to this issue.’ We therefore hold that the

district court abused its discretion by not allowing Dixon to

present evidence regarding his reliance on the advice of state

officials as a defense to the specific intent element of his

money laundering charges. Accordingly, we reverse the

district court’s grant of the government’s motion in limine.

4. When a criminal statute requires specific proof of culpable

intent, the constitutional defense of entrapment by estoppel is

superfluous because a defendant who acted in good faith reliance on

the advice of government officials that his conduct was legal cannot

have the specific intent to commit the offense. See Connelly, supra,

at 648.

5. The district court did not mention Fed. R. Evid. 403 in

granting the government’s motion in limine. To the extent that the

district court relied on Rule 403, we note that the probative value of

the excluded evidence was not substantially outweighed by the danger

of unfair prejudice, confusion of the issues or misleading the jury.

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Appendix A

iil.

For the foregoing reasons, we REVERSE the judgment

of the district court and REMAND for further proceedings

in accordance with this opinion.

lla

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF

TENNESSEE, NORTHEASTERN DIVISION

DATED AND FILED JULY 14, 1997

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NORTHEASTERN DIVISION

No. 2-96-00014

Judge Higgins

UNITED STATES OF AMERICA

v.

JERRY DIXON

ORDER

For the reasons stated on the record’ at the hearing on

March 25, 1997, the government’s motion (filed March 24,

1997; Docket Entry No. 51) in limine to prevent the defendant

from introducing evidence regarding the defense of

entrapment by estoppel was granted.

It is so ORDERED.

s/ Thomas A. Higgins

Thomas A. Higgins

United States District Judge

1. See transcript filed June 2, 1997 (Docket Entry No. 98).

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Appendix B

[stamp] This document

was entered on the docket

in compliance with Rule

55, FRCrimP, on 17-14-97,

By: s/ AG [stamp]

13a

Appendix B

97-6088

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

COOKEVILLE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JERRY DIXON,

Defendant.

TRANSCRIPT OF PROCEEDINGS —

MOTION IN LIMINE & RULING

BEFORE THE HON. THOMAS A. HIGGINS,

U. S. District Judge

on March 25, 1997

* ~ bd

[Commencing at page 6].

* * *

THE COURT: Well, we’re trying a federal offense and

the Court of Appeals for the Sixth Circuit said we need not

apply these factors in the present case, however, because none

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Appendix B

of the assurances on which Tinsley relies were made by an

authorized government official for purposes of the entrapment

by estoppel defense. When asserting this defense in regard

to a federal crime, the defendant must have reasonably relied

on assurances made by a federal — not state — official.

MR. STRIANSE: Your Honor, again, Tinsley —

THE COURT: Then they cite Spires from the Fifth

Circuit; to satisfy the requirements of the defense when

charged with a federal crime, a defendant must show reliance

on either a federal government official or an authorized agent

of the federal government.

MR. STRIANSE: That’s purely a federal crime.

THE COURT: Well, this is purely a federal crime. We're

not trying a state offense here, we're trying a federal crime.

MR. STRIANSE: But in order for Mr. Dixon to be found

guilty of the federal offense, one of the essential jurisdictional

elements is that he violated the Tennessee state law. Who

else would a citizen look to for guidance on the Tennessee

state law other than the local and state law [7] enforcement

officials? If someone had a question about whether their

conduct impacted a Tennessee statute, they certainly wouldn’t

call Mr. Harcum in Cookeville and ask him.

THE COURT: But the Court of Appeals has also dealt

with that in the Hurst case that I decided. In Tinsley, in

footnote five, the court says, The defendants in Hurst were

charged violating gambling under 18 United States Code

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Appendix B

1955. In our decision we noted that one of the purposes of

section 1955 was to aid in the enforcement of state gambling

laws where state officials — state enforcement was disabled

by corruption of state officials. Allowing a state official's

alleged complicity in illegal activities to void the conviction

here would violate the intent of Congress in enacting Section

1955 and distortd the clear due process doctrine set forth in

Cox versus Enraley.

MR. STRIANSE: Your Honor, we make no insistence

that the state officials in this case were involved in any

wrongdoing or were a part of the plan to have somebody just

shrug off the law. That’s not our position.

Our position is that they gave advice to my client and he

relied on that advice. This is a defense, Your honor, that’s

been used in Judge Nixon’s court in a federal gambling case,

it’s been used in Judge Echols’ court in a federal gambling

case, it was used last month before Judge

* + *

[32] laundering purposes that the government is relying on

is the specified activity proscribed by 1955, the federal statute,

and that underlying state offense is a jurisdictional matter.

It’s an element, but it’s a jurisdictional matter.

Mr. Strianse, based upon your proffer, and believe me,

sir, I’m going to give you the opportunity to flesh out the

record to preserve your position in the record, however long

it takes, by calling each of these witnesses and putting their

proof in the record, but I am satisfied under Hurst, Tinsley

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Appendix B

and the related cases, that under the facts of this case as they

now appear based on this superseding indictment, that the

proffered testimony that you have outlined in support of this

entrapment by estoppel in simply not an applicable defense

in this case and this court will not permit it. And based on

what is now apparent from the superseding indictment that it

can’t come in the back door in support of a claim of good

faith, a defense in good faith with regard to this money

laundering count.

Now if I'm wrong, that’s why the Court of Appeals sits

in Cincinnati and the Supreme Court of the United States

sits in Washington.

MR. STRIANSE: I understand that, Your Honor. But

it’s not quite that simple. You're putting us in the position of

going forward today with no defense. And I don’t think I’m

limited by the imagination of Mr. Vincent [33] when he stands

up here and says in the presence of people that don’t have

any defense, this court knows me as an officer of the court,

knows that I don’t come to court with no defense, just for the

sport of having a trial. And I don’t know why the court would

force us to trial when I have made a lawyerlike representation

to the court that we have put all of our eggs in this basket and

now we're going to go through some minuet with the jury

when we get our brains beat at out over the next week and he

gets sentenced to 80 months, then I don’t know what solace

he can take in the fact while his case is matriculating through

the Court of Appeals in Cincinnati that maybe they will take

a look at it.

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Appendix B

THE COURT: Well, now, I understand your appeal and

respect your representation as an officer of the court. And I

haven't dealt with the question of a continuance yet. But

what's the situation going to be six weeks from now when

you come in with another defense and it won’t trot? Are you

going to ask then —

MR. STRIANSE: No.

THE COURT: — for another continuance? The point is

this is a matter that was subject to a fair debate, such as we’ve

had here today, and in addition to the papers and a respectable

contention could be made that you were chargeable with this

might not trot.

[37] in and we talk about it, and it would give me an

opportunity to talk to the government, to see if there is any

way we could fashion — although the circuits are split on

this, whether this kind of defense can be brought pretrial,

some circuits say no, some circuits say yes, perhaps it could

be a 12(b) motion, an evidentiary hearing and a conditional

plea and an appeal. I don’t know. I need to explore it with

the government and with my client.

Or maybe I could announce at that status conference that

we're unable to resolve it, we’re going to trial and these are

my defenses. And even the government can speak or forever

hold their peace as to whether they think it’s a legitimate

defense or not.

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Appendix B

THE COURT: Well, I want to give you every fair chance

because a man’s liberty is at stake and it’s no trivial matter

to just hustle a man into the penitentiary. And | think you

know that I believe I am careful about that.

MR. STRIANSE: Yes, Your Honor.

THE COURT: That I’m conscious that when one

disposes of the life and liberty of people, that under our

constitutional form of government, that it behooves those who

exercise that power to be careful about their business.

And I just respectfully disagree and hold on the basis of

the authorities that I have cited and for the reasons | have

articulated that the defense of entrapment by estoppel and

the good faith defense based upon the same proof that’s been

proffered as a defense to the money laundering count simply

is not cognizable as a matter of law under the law of this

Circuit.

And I might add that part of that law was made arising

out of a decision in a case that I tried right here, and that was

the Burnett case, the state legislator, and these people from

the Secretary of State’s office and the lady over somewhere

in east Tennessee, Ms. Hurst, who Mr. Richey from

Knoxville, very competent federal criminal lawyer,

represented. And that’s a published opinion. And I held in

the same fashion in that case: Simply absent a representation

by a federal officer charged with law enforcement enforcing

the particular statute or a state official who purported to act

under authority of the federal government, that what you have

proffered simply does not rise to a recognized defense.

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Appendix B

Now Mr. Dixon and you disagree, and ultimately you

can present it to the Court of Appeals and the Supreme Court

of the United States, but that’s the decision this court makes

upon the record as it is now presented to this court.

Now on the question of a continuance. Given your

representation, and | recognize the government has exerted a

great effort to be prepared, out of an abundance of caution

I’m going to grant the continuance.

+ * *