Petition for Writ of Certiorari — Proven v. United States

' Supreme Court, U8. ;

FILED

001465 MAR 1 9 2001

OFFICE OF THe CLERK

In The

Supreme Court of the United States

+

DONN R. PROVEN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The Eleventh Circuit Court Of Appeals

+

PETITION FOR WRIT OF CERTIORARI

+

BENJAMIN S. WaAxMAN, EsQuiri

ALAN S. Ross, EsQuirt

Counsel of Record

Rossins, TUNKEY, Ross,

AMSEL, RABEN, WAXMAN &

E1GLARSH, P.A.

2250 Southwest Third Avenue

Fourth Floor

Miami, Florida 33129

(305) 858-9550

Counsel for Petitioner

Donn R. Proven

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

II.

QUESTIONS PRESENTED

Whether a defendant is entrapped as a matter of law

where the government has originated the criminal

design, implanted it in the defendant’s mind, and

induced commission of the crime, and where the

defendant clearly manifests a lack of predisposition

prior to being approached by the government agent?

Whether an appellate court, in an entrapment case,

may consider all inferences, not just reasonable infer-

ences, in the government’s favor in determining

whether the government has proven the defendant's

predisposition to commit the crime, absent the gov-

ernment’s inducement, beyond reasonable doubt?

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESEN IEG i; .....s0seeeeeeeees Paeae

TABLE OF AUTHORITING 2... 125 ase ehenpeee eases iii

OPINION BELOW... :000e eee ii Gee aa a een 1

JURISDICTION . . s:« 0:5 ¢0/ au oan ee ee 1

CONSTITUTIONAL PROVISION INVOLVED....... 1

STATEMENT OF THE CASE...........0-.0-0000005 1

REASONS FOR GRANTING THE WRIT ........... 10

I. THE ELEVENTH CIRCUIT COURT OF

APPEALS, BY AFFIRMING THE DEFEN-

DANT’S CONVICTION AND REJECTING HIS

ENTRAPMENT DEFENSE, HAS VIOLATED

THE DUE PROCESS PRINCIPLES SET FORTH

IN JACOBSON v. UNITED STATES, 503 U.S. 540

(1992), AND HAS RENDERED A DECISION

THAT CONFLICTS WITH DECISIONS OF THIS

COURT AND OTHER FEDERAL CIRCUIT

COURTS OF APPEALS: ...12-7ess seer eeaeee eee 10

Il. THE ELEVENTH CIRCUIT COURT OF

APPEALS, BY DRAWING ALL INFERENCES IN

FAVOR OF THE GOVERNMENT IN EVALUAT-

ING WHETHER IT PROVED THE DEFEN-

DANT’S PREDISPOSITION TO COMMIT AN

OFFENSE, HAS RENDERED A DECISION

THAT CONFLICTS WITH DECISIONS OF THIS

COURT AND OTHER FEDERAL CIRCUIT

COURTS OF APPEALS. .is415 ee 19

CONCLUSION 6 «occ: 5 5 ue ee 23

iv

TABLE OF AUTHORITIES - Continued

Page(s)

United States v. Frost, 125 F.3d 346 (6th Cir. 1997),

Cort: Gem, Fe Wi BIG TR 6 heat ccctacnacesain 21

United States v. Gonzalez, 19 F.3d 1169 (7th Cir.

eg | AP ERB ND PP BA roy rey oD PMA EAS 22

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

1990) (en banc), rev'd, 503 U.S. 540 (1992)...... a Re

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

ee BEF ST D.. Tae CR oi in ah eC eee ck ness 22

United States v. Kaminski, 703 F.2d 1004 (7th Cir.

PN 5c 5i0 66 Cob ok pA ks AD RRS GAR ARE DUAR Rees 18

United States v. Leoz-Quijada, 107 F.3d 786 (10th

Ce Us kines bxovasasereadaend boebsy sip en eRes 21

United States v. Ortega Reyna, 148 F.3d 540 (5th Cir.

OE TEP Pe TT ETS eer e rer ry ETT Ter Tre 21

RRR ag ine Oi irie SL Aart AMER D, rn gr AEA ae 16, 19, 20

United States v. Reveles, 190 F.3d 678 (5th Cir. 1999) .... 21

United States v. Russell, 411 U.S. 423 (1973).......... 11

United States v. Salerno, 66 F.3d 544 (2d Cir. 1995),

cert. denied sub nom., Di Girolamo v. United States,

Tae TES. RU Ce ok wks and eo bb hes abe eek kas 22

United States v. Villegas, 911 F.2d 623 (11th Cir.

RONOE id uwdn eden adabanseeeT Aswan saepenuabeaewane 21

STATUTES, RULES AND CONSTITUTIONAL PROVISIONS

Supreme Court Rules

I ro 9.505 4.2 0cue es esbecceceues cobs cea 20

TABLE OF AUTHORITIES - Continued

Page(s)

United States Code

tee 36, WSs. ORR 2. eee 1

Tee 36, U.S. GOO B71. cons ccc ae 1

Title 28, U.S.C. section 1254(1)..................... 1

s8the 30, USA. SOGGOR THU. 6 issn ccccesnakee eee 1

ite 30, USC. nection TAUB. i6.d5.osa0es bas leeeaes 1

United States Constitution

Fifth

ADMIRER. 3) oss ae eee 1

OPINION BELOW

The unpublished opinion of the United States Court

of Appeals, Eleventh Circuit, is contained in the Appen-

dix (hereinafter “A”) ai pages 1-2.

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JURISDICTION

The judgment to be reviewed was entered on Novem-

ber 13, 2000. A-1. Mr. Proven’s Petition for Rehearing was

denied on December 18, 2000. A-3. Jurisdiction is con-

ferred on this Court by Title 28, U.S.C. section 1254(1).

>

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fifth Amendment to

the United States Constitution:

No person shall be . . . deprived of life, liberty,

or property, without due process of law.

.

STATEMENT OF THE CASE

Mr. Proven and co-defendant Fairchild were charged

in a two count superseding indictment with conspiracy to

export helicopters to Iraq (in violation of Title 18, U.S.C.

section 371); and attempt to deal in property intended for

exportation to Iraq (in violation of Title 50, U.S.C. sec-

tions 1702 and 1705 and Title 18, U.S.C. section 2). The

district court denied the defendants’ motions for judg-

ment of acquittal based on entrapment. The jury found

Mr. Proven and co-defendant Fairchild guilty as charged.

Thereafter, the district court entered its judgment of con-

viction and sentenced Mr. Proven to 46 months in prison.

The evidence at trial established that Donn Proven, a

professional administrator with extensive military and

police experience including thirty years in the Marine

Corps, joined together with a group of military colleagues

to form Police & Military Instructors, Inc. PMI was dedi-

cated to providing training, instruction, and maintenance

for civilian applications of military and police technolo-

gies and operations including security and aviation.

Proven’s partners included Fairchild (a former legislator

and narrowly defeated Arkansas gubernatorial candi-

date), a retired Colonel of the National Guard with 41

years of military experience, a military police officer with

the United States Army, and a retired Brigadier General

and former captain of the Chicago Police Department.

In 1996, Proven met an entrepreneur with business

interests in the Philippines. The Philippines was looking

to stimulate economic growth. This contact advised

Proven about the Philippines’ need for assistance in

developing a security operation to combat routine bank

robberies and other services PMI had to offer.

Proven traveled to the Philippines with his contact to

explore potential business opportunities for PMI. Proven

met various government officials, including the President

of the Philippines, to discuss the Philippines’ security

needs. Proven met with a Philippines business consultant

who was asked to assist Proven in complying with gov-

ernmental regulations necessary to set up a potential

business for sales, rentals, and maintenance of helicop-

ters. The business contemplated importing some United

States manufactured military helicopters. The men dis-

cussed the needed authorizations and required “end user

certificates” from the Civil Aeronautics Board. Proven

also met other Philippines officials who gave further

assistance and encouragement to Mr. Proven regarding

his interest in developing business opportunities for PMI

in the Philippines. These officials and consultants testi-

fied that Mr. Proven did nothing to conceal his identity or

that of his principals, or otherwise did anything out of

the normal or usual course of business.

While in the Philippines, Mr. Proven stayed in con-

tact with the other PMI principals. He advised his board

about being requested to present a letter of proposal

regarding the security operation which would involve the

use of 12 to 15 helicopters and a maintenance contract

sought by PMI.

Upon his return to the United States, Proven met

with PMI’s board of directors. He reviewed his Philip-

pines trip and the nature of the proposed venture. He

specified that the operation would involve 15 helicopters

which “could lead to many more repair and rebuild

amendments to the contract.” The operation would

require maintenance, flight training, and probably the

provision of all maintenance tools. He further discussed

the need for submitting “a concept proposal.” All mem-

bers of the PMI board of directors approved pursuing this

proposal.

In mid-January, 1997, Proven forwarded a letter of

proposal to one of his Philippines contacts. The proposal

provided an overview of the Philippines’ security prob-

lems, and outlined various steps that PMI proposed tak-

ing to remedy the problems including repairing non-

flyable aircraft currently located in the Philippines for use

in security, establishing an aviation maintenance and

repair facility, and training Philippines nationals to main-

tain and repair their aircraft and to pilot them safely.

Proven wrote a follow-up letter requesting input and a

response to the proposal one and one-half months later.

In early January, codefendant Fairchild inquired about a

fleet of Canadian demilitarized helicopters being mar-

keted by a private broker. Canada had obtained the fleet

from the United States Army. Because these aircraft were

on the United States munitions list, their sale was

required to be approved by the United States Department

of State. The owner was offering to sell the fleet for

$68,000.00 Canadian dollars per helicopter, making the

total price for the 45 helicopter fleet $3,060,000.00.

Fairchild wanted to purchase two of the helicopters,

but the broker had countered that the seller would not

sell fewer than twenty-two. Fairchild responded that he

might be interested in five. By March or April, the broker

indicated that there were thirty-five helicopters available

and that a letter of intent and non-refundable deposit of

$750,000.00 would be required to inspect them.

In further negotiations, Fairchild advised the broker_

that his true interest was a service contract in the Philip-

pines but that he could not get the contract until he could

show a contract to purchase the necessary helicopters. A

price of $152,000.00 United States dollars per helicopter

was discussed.

The broker began contacting Canadian and American

officials to determine the viability of a sale to Fairchild.

He specifically advised Fairchild that a resale could not

be made to an unfriendly country. Fairchild stated that

this was not a problem because the helicopters were

going to the Philippines. Fairchild further assured that

complying with the State Department's “end user certifi-

cate” requirement would not be a problem.

By March when it became clear that the entire fleet

would have to be purchased to obtain the two desired

helicopters, PMI contacted another broker to find a pur-

chaser for the balance of the helicopters. Proven empha-

sized: “We cannot involve ourselves in non-disclosure

with the sale of aircraft, training on them, or maintenance

of them. In order for us to sell them we need U.S. State

Department participation in the contract process and

there [sic] approval of the sale.” A-4-5.

By mid-March, 1997, Hugh Redditt, a twenty-year

veteran helicopter broker and former paid informant for

United States Customs, had been contacted about pur-

chasing the Canadian helicopters. Redditt was speci-

fically told that the sellers were military people and that

the entire transaction would have to be made with State

Department approval. A-6.

Shortly after being contacted, Redditt contacted Cus-

toms. He claimed he was suspicious of the broker because

he would not disclose the identity of the seller or the sale

price and he believed State Department approval would

be nearly impossible to obtain. By mid-April, Customs

had undertaken Redditt’s supervision in pursuing the

sellers. Redditt began tape recording all of his telephone

conversations and meetings regarding the proposed heli-

copter transaction.

In a taped telephone conversation on April 15, 1997,

PMI’s broker told Redditt that the sellers could not

involve themselves in a “non-disclosure with the sale of

the aircraft” and that to sell them, they would “need U.S.

State Department participation in a contract, ... in the

contract process, and their approval of the sale.” A-6.

Redditt contacted the broker a second time on April

15th. In response to Redditt’s inquiry whether non-dis-

closure was a possibility, Proven and Fairchild responded

unequivocally in a direct communique to Redditt, “Can’t

do it. We have to disclose to Department of State.” As the

broker and Redditt discussed the fact that the helicopters

seemed to be overpriced at $150,000.00 apiece, Redditt

persisted that the value of the helicopters depended upon

what he could sell them for and that they might well be

worth the price if they could be resold to “someone’s who

(sic) not supposed to have them.” The broker again

reminded Redditt of Proven’s and Fairchild’s written

communique that the helicopters could not be sold to

“people that can’t have them.”

On April 23, 1997, Redditt met in person with Proven

and Fairchild. He told them numerous lies, distortions,

and exaggerations to establish his expertise and gain

their confidence. Proven and Fairchild explained that

their real business was aviation maintenance and training

and that helicopter procurement was only necessary to

facilitate these primary aspects of their business. A-8-9,

10-11. Proven told Redditt that any sale would have to be

“squeaky clean . . . to clear the U.S. [State] Depart-

ment... ;” the deal would have to “walk on water.” A-9.

Redditt knew that Proven and Fairchild were asking

$350,000.00 per helicopter and indicated his belief that

they were not worth that much. In an effort to support

this inflated price, Proven stated that the helicopters

would bring his maintenance, training and transitioning

expertise. Fairchild puffed that the helicopters had many

uses, for police, search and rescue, and “just a multitude

of operations that the OH-58 does better than just about

any other aircraft out there. ... ” Redditt retorted that it

would be very difficult to sell the helicopters to a “legiti-

mate foreign government” which could provide services

for free, and that the helicopters could only command a

$350,000.00 sale price if they were sold to “an unfriendly

place that couldn’t provide you with an end user certifi-

cate. ...” A-10. Proven’s response was clear and immedi-

ate: “Yeah but there’s one little hitch in that scenario,

I’m not about to do that.” Id. Redditt responded that

Proven would have to be “more realistic about the selling

price” to which Proven replied “Alright.” Id.

Throughout the balance of this conversation, Proven

and Fairchild continued to emphasize that their interest

was not in the helicopters but, instead, maintenance and

training contracts. A-10-12. Indeed, Proven and Fairchild

had no arrangement to make a commission on any sale.

A-11-12. Redditt acknowledged Proven’s and Fairchild’s

desire to do any transaction “absolutely legiti-

mately. ...” As Redditt pushed Proven and Fairchild,

again, to provide an “end user certificate” themselves in

order to sustain the $350,000.00 per helicopter price, Fair-

child continued to resist: “What about two hundred?”

Redditt flatly rejected this suggestion. Further expressing

his revulsion at the idea of selling helicopters to an

unfriendly nation, Proven remarked: “ ... I’m not a

Republican anymore because my president, the one that

just left office, sold weapons to my enemy, f --- him and

the Republican party.” A-12.

On May 7, 1997, Fairchild continued to suggest ways

to purchase the helicopters without involving any

“unfriendly country.” He suggested that PMI could

acquire the helicopters for the buyer, bring them into the

United States, outfit them for police work, and then sell

them piecemeal to police departments. A-13. Even after

Redditt stated “that’s not where my buyer wants them,”

Fairchild responded that he could ship the helicopters to

Houston and then “sell them to whoever.” A-14.

Discussions continued throughout May, June, and

into July. Redditt continued to pressure Proven and Fair-

child urging “my guys are ready to proceed,” “we’re

ready to go at this end... . ” In early July, with still no

definitive plan to sell to Redditt’s mystery buyers, Red-

ditt pressed: “I want to get this show on the road other-

wise I’m gonna lose confidence with these guys that want

to spend this dough.” A-16. Redditt made veiled threats,

advising Proven and Fairchild that there were “all kinds

of creeps all over the world” involved and that the buyers

were “spooky” people who did things in “devious ways.”

A-17. He repeatedly expressed impatience with the

delays. He periodically reminded Proven and Fairchild,

who could not even afford domestic travel necessary to

consummate any deal, that there would be millions of

dollars in profits for them if the deal closed.

For their part, Proven and Fairchild continued to

explore alternatives to Redditt’s proposed sale to buyers

from some undesignated, “unfriendly place.” They sug-

gested bringing the aircraft to the Middle East for human-

itarian reasons through the International Red Cross with

direct State Department approval. They suggested mod-

ifying the aircraft engines with State Department

approval so that they would not need an end user certifi-

cate. As late as mid-July, Proven and Fairchild indicated

they were still attempting to get “civilian” certifications

to avoid the need for State Department approval. Inform-

ant Redditt continued to rebuff these ideas. He insisted

that this was no time for surprises and they were “in this

uv

god damn boat, sink or swim... .

Even at the July 17, 1997, meeting with Redditt which

immediately preceded Proven’s and Fairchild’s arrests,

Proven was still attempting to get the helicopters certified

civilian to avoid the necessity of an end user certificate

and State Department participation: “[I]f I can get them

certified as to 206 Alpha 1s, I don’t need an end user

certificate and I can sell them as civilian aircraft.” The

identify of Redditt’s buyers was still unclear, “[I]s it Iran

or Iraq?” Nonetheless, on the next day, Redditt brought

the contract for the sale of the thirty-five helicopters for

($12,250,000.00) twelve million two hundred and fifty

thousand dollars. Shortly after signing the contract,

Proven and Fairchild were arrested.

In addition to the facts of the circumstances directly

surrounding the negotiations between Proven and Fair-

child, and Customs informant Redditt, Mr. Proven pre-

sented numerous witnesses who testified about his

impeccable reputation for iaw-abidingness, patriotism,

10

and lack of predisposition to sell helicopters to

unfriendly nations. These witnesses including police offi-

cials who knew Proven from his twenty years of service

on the Northfield, Illinois, Fire and Police Commission,

business people he knew Proven from his lengthy tenure

leading to his executive directorship of the Equipment

and Tool Institute, and other decorated officers from the

Marine Corps in which Proven served for thirty vears.

Rejecting Proven’s claim that the district court had

erred in denying his motions for judgment of acquittal

based on entrapment as a matter of law, the Eleventh

Circuit Court of Appeals held that it must “view the

evidence and make all inferences in favor of the govern-

ment.” A-2 (emphasis added). In light of this standard,

the court went on to state that it could not say that the

defendants were entitled to a judgment of acquittal as a

matter of law.

¢

REASONS FOR GRANTING THE WRIT

I. THE ELEVENTH CIRCUIT COURT OF APPEALS,

BY AFFIRMING THE DEFENDANT’S CONVIC-

TION AND REJECTING HIS ENTRAPMENT

DEFENSE, HAS VIOLATED THE DUE PROCESS

PRINCIPLES SET FORTH IN JACOBSON ov.

UNITED STATES, 503 U.S. 540 (1992), AND HAS

RENDERED A DECISION THAT CONFLICTS

WITH DECISIONS OF THIS COURT AND OTHER

FEDERAL CIRCUIT COURTS OF APPEALS.

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

Court reiterated that “Government agents may not origi-

nate a criminal design, implant in an innocent person's

mind the disposition to commit a criminal act, and then

induce commission of the crime so that the Government

may prosecute.” Id. at 548. Culminating a solid line of

precedents that condemned government inducement of

crime in suspects that otherwise lack the predisposition

to commit offenses on their own, e.g., United States v.

Russell, 411 U.S. 423 (1973); Sherman v. United States, 356

U.S. 369 (1958); Sorrells v. United States, 287 US. 435

(1932), this Court held in Jacobson that “the Government

overstepped the line between setting a trap for the

‘unweary innocent’ and the ‘unweary criminal,’ .. . and

as a matter of law failed to establish that petitioner was

independently predisposed to commit the crime for

which he was arrested ... .” Id. at 542.

Although the Eleventh Circuit’s decision in the

instant case fails to recite the facts underlying its decision

or explain its analysis of them, the trial record cannot be

squared with this Court’s precedents and those of other

federal circuit courts of appeals condemning entrapment.

The Eleventh Circuit has erected a virtual insurmountable

burden to a defendant demonstrating lack of predisposi-

tion, The standards it has employed prevent it from ful-

filling its constitutional role under the Due Process

Clause of ensuring that the government does not manu-

facture a crime and then, having led an unsuspecting

citizen down the road to criminal misconduct, spring that

trap to take its trophy.

In Jacobson, this Court reviewed. and ultimately

reversed, the Eighth Circuit’s decision which, upon

rehearing en banc, affirmed the defendant's conviction,

rejecting his argument that he was entrapped as a matter

of law. United States v. Jacobson, 916 F.2d 467 (8th Cir.

12

1990), rev'd, 503 U.S. 540 (1992). Jacobson concerned a fifty-

six-year-old veteran-turned-farmer who ordered maga-

zines entitled Bare Boys I and Bare Boys II from a Califor-

nia adult bookstore. Id. at 542. The magazines depicted

nude preteen and teenage boys. Id. at 542-3. After federal

law changed rendering receipt through the mails of sexu-

ally explicit photographs of children illegal, federal

agents who obtained the bookstore’s mailing list under-

took to test Jacobson’s willingness to continue receiving

child pornography. Id. at 543.

Federal agents first sent Jacobson a letter from the

fictitious American Hedonist Society touting a persons’

“right to read” what the person desires and “right to seek

pleasure without restrictions being placed . . . by out-

dated puritan morality.” Upon Jacobson’s enrollment,

the organization responded with a sexual attitude ques-

tionnaire on which Jacobson indicated that he

“enjoy[ed] . . . [p]re-teen sex.” Id. at 544. A federal agent

next sent Jacobson a solicitation from a supposed con-

sumer research company seeking responses from people

who “believe in the joys of sex of and the complete

awareness of those lusty and youthful lads and lasses of

the neophite [sic] age.” Id. Jacobson responded that he

was interested in “teenage sexuality.” Id. The government

next sent Jacobson a mailing from a fictitious organiza-

tion “founded to protect and promote sexual freedom and

freedom of choice.” This included another survey on

which Jacobson indicated “above average” but not high

interest in “[p]reteen sex-homosexual” material. Id. This

organization replied with materials indicating it was a

lobbying organization with the purpose, among others, of

————EEe OO

13

eliminating “any legal definition of the age of consent.”

Id. at 545. These materials contained a list of potential

“pen pals” with similar interests to which Jacobson did

not respond.

By this time, thirty-four months had passed since the

government obtained Jacobson’s name; twenty-six

months had passed since agents began its mailings to

Jacobson. Now, a Customs pornography sting sent Jacob-

son a brochure advertising photographs of young boys

engaging in sex. Id. at 546. This time, Jacobson ordered a

set of photographs advertised as depicting “young boys

in sex action fun.” Id. at 555. For unknown reasons, the

order was never delivered. The second time a catalogue

was sent, Jacobson ordered a magazine called “Boys Who

Love Boys” described as “11 year old and 14 year old

boys get in on in every way possible... . . wey

Upon these facts, the court of appeals concluded that

the government had merely provided Jacobson with an

opportunity to illegally purchase child pornography, that

Jacobson was predisposed to commit this offense, and,

thus, that the question of Jacobson’s entrapment was

properly submitted to, and decided by, the jury. Id., 916

F.2d at 470. Reversing, this Court found that the facts

established entrapment as a matter of law. This Court

acknowledged that agents may lawfully offer the oppor-

tunity to, for instance, buy or sell drugs, and if the offer is

accepted, make an arrest. Id., 503 U.S. at 549-50. The

Court explained that where the government simply pro-

vides an opportunity to commit a crime, “the entrapment

defense is of little use because the ready commission of

14

the criminal act amply demonstrates the defendant's pre-

disposition.” Id. at 550. By contrast, in Jacobson, the peti-

tioner had been “the target of 26 months of repeated

mailings and communications from Government

agents ....” Id. Thus, though the petitioner was predis-

posed to break the law when he ultimately ordered the

child pornography, this Court held that “the Government

did not prove that this predisposition was independent

and not the product of the attention that the Government

had directed at petitioner [over the prior 26 months].” Id.

This Court eschewed the government's claimed evi-

dence of predisposition prior to its mailing campaign that

Jacobson had ordered and received the Bare Boys maga-

zines. Although this may have reflected Jacobson’s sexual

preferences, it was not illegal at the time. Jd. at 550-51.

Regarding the government’s evidence of predisposition )

gathered during its investigation, this Court viewed the |

government entreaties to support individual rights and to |

“obtain and read [sexually explicit] material[s] as part of

a fight against censorship and the infringement of indi-

vidual rights” as an exertion of “substantial pres-

sure ... .” Id. at 552. Regarding Jacobson’s ultimate

orders placed in response to the government's final solic-

itations, this Court observed:

Petitioner’s ready response to these solicita-

tions cannot be enough to establish beyond rea-

sonable doubt that he was predisposed, prior to

the government acts intended to create predis-

position, to commit the crime of receiving child

pornography through the mails. . . . The evi-

dence that petitioner was ready and willing to

ene

a"

Ul

commit the offense came only after the Govern-

ment had devoted 2'/2 years to convincing him

that he had or should have the right to engage

in the very behavior prescribed by law. Rational

jurors could not say beyond a reasonable doubt

that petitioner possessed the requisite predis-

position prior to the Government's investigation

and that it existed independent of the Govern-

ment’s many and varied approaches to peti-

tioner.

Other federal courts of appeals have followed this

Court’s lead in carefully scrutinizing inducement and

predisposition in entrapment cases. In United States v.

Brooks, 215 F.3d 842 (8th Cir. 2000), the court reversed the

defendant’s conviction of distribution of controlled sub-

stances based on a finding of entrapment as a matter of

law. The government had argued that the defendant's

prior conviction of possession of cocaine with intent to

distribute was evidence of predisposition. Id. at 846.

Although the court recognized this evidence was proba-

tive, it concluded that, standing alone, it was insufficient

to establish predisposition. Id. The court pointed to Sher-

man v. United States, 356 U.S. 369 (1958), in support.

There, though the defendant had been convicted of two

prior drug offenses, one sale-related and one for posses-

sion, this Court found insufficient evidence to establish

predisposition. Id. at 375-76.

In Brooks, the government urged that the entrapment

defense had been fully considered by the jury and the

court should be loath to disturb its verdict. Jd., 215 F.2d at

847. The court responded:

16

The continuing vitality and integrity of our

“government of laws” would be imperiled if we

sanctioned the manufacturing of crime by those

responsible for upholding and enforcing the

law. .. . The government may not condemn an

otherwise innocent person for committing, at

the behest of the government, a crime which the

government itself has devised.

Id. (citation omitted).

In United States v. Poehlman, 217 F.2d 692 (9th Cir.

2000), the court likewise reversed a jury verdict of guilty

for crossing state lines for the purpose of engaging in sex

acts with a minor, finding entrapment as a matter of law.

The government urged that there was abundant evidence

of predisposition: the defendant’s graphic, detailed

descriptions of sexual acts he would engage in with the

undercover agent's fictitious children; his statement that

he “always looked at little girls,” his enthusiastic

response to the question whether he believed the ficti-

tious children would be ready for certain sexual acts,

“God, I hope so;” and the fact that the first mention of

having sex with the children, and the description of each

proposed sexual act in which they would engage, origi-

nated with the defendant. Id. at 703-07. Despite the infer-

ences that could have been drawn from this evidence of

predisposition, and the jury’s verdict of guilty, the court

reversed the defendant's conviction.

As in Jacobson, Brooks, and Poehlman, Mr. Proven

maintains, and his trial record demonstrates, that, not-

withstanding the Eleventh Circuit’s opinion, the govern-

ment failed to sustain its burden of proving that he was

een

<A A RE RT

17

predisposed to commit the offense of which he was con-

victed. Unquestionably, the government, through its

agent/informant Redditt, originated the criminal design.

It was Redditt who first raised the specter of selling the

helicopters to an unfriendly country. A-10. Proven and

Fairchild repeatedly rejected Redditt’s suggestion, both in

written communications and telephone conversations.

E.g., A-4-5, 6, 9. None was perhaps as forceful and direct

as Proven’s immediate response to Redditt’s urging that

the helicopters could only command a $350,000 sale price

if they were sold to an unfriendly place, “Yeah but there’s

one little hitch in that scenario, I’m not about to do that.”

A-10.

Throughout the next three months, Proven and Fair-

child resisted Redditt’s persistent suggestions of criminal

misconduct by proposing, several times, a lower sales

price, e.g., A-10-12, and alternative, legitimate means of

disposing of the helicopters. E.g., A-13-15. Redditt stub-

bornly rebuffed these suggestions. He persisted in his

efforts to inveigle Proven and Fairchild through promises

of millions of dollars in profits and the thinly veiled

threats of the undisclosed buyers. E.g., (there are “all

kinds of creeps all over the world” involved); A-17

(“spooky” people who do things in “devious ways”), who

were counting on Proven and Fairchild to facilitate the

transaction.

The dissenters in Jacobson protested that the peti-

tioner’s eager response to the opportunity to commit a

crime dispelled his claim of lack of predisposition:

Keith Jacobson was offered only two oppor-

tunities to buy child pornography through the

mail. Both times he ordered. Both times, he

ee

18

asked for opportunities to buy more. He needed

no Government agent to coax, threaten, or per-

suade him; no one played on his sympathies,

friendship, or suggested that his committing the

crime would further a greater good. In fact, no

Government agent even contacted him face-to-

face.

Id., 503 U.S. at 554. They noted that “the most important

factor [in determining predisposition] . . . is whether the

defendant evidenced reluctance to engage in criminal

activity which was overcome by repeated Government

inducement.” Id. (quoting United States v. Kaminski, 703

F.2d 1004, 1008 (7th Cir. 1983) (citation omitted)).

In the instant case, Mr. Proven and codefendant Fair-

child exhibited strong resistence to the government’s

criminal scheme throughout three full months of inten-

sive negotiations. Government agent Redditt coaxed,

threatened, and persuaded them through, inter alia,

repeated promises of millions of dollars in profits, to go

along with the government’s scheme. Proven and Fair-

child’s resistence persisted through the final meeting pre-

ceding the signing of the contract which obligated

Redditt’s still undisclosed clients to payment of more

than twelve million dollars. This resistence, together with

the other evidence, undermined any reasonable inference

of predisposition.

By its decision, the Eleventh Circuit Court of Appeals

has, essentially, insulated unconstitutional governmental

entrapment from appellate review. By viewing all evi-

dence and all inferences (even ones that are unreason-

able) in favor of the government, the court has abdicated

19

its constitutional duty to scrutinize governmental investi-

gative techniques that are contrary to due process of law.

The decision is contrary to those principles set out in

Jacobson and the decisions of other circuit courts of

appeals exemplified by Brooks and Poehlman. To rectify

this conflict and reinitiate appropriate standards in the

Eleventh Circuit for review of entrapment cases, this

Court should review this case and reverse Mr. Proven’s

conviction.

Il. THE ELEVENTH CIRCUIT COURT OF APPEALS,

BY DRAWING ALL INFERENCES IN FAVOR OF

THE GOVERNMENT IN EVALUATING

WHETHER IT PROVED THE DEFENDANT'S PRE-

DISPOSITION TO COMMIT AN OFFENSE, HAS

RENDERED A DECISION THAT CONFLICTS

WITH DECISIONS OF THIS COURT AND OTHER

FEDERAL CIRCUIT COURTS OF APPEALS.

The role of a court in assessing the sufficiency of the

evidence in an entrapment case is doubly important. Not

only must it ensure that government does not manufac-

ture a crime and then implant the disposition to commit

the crime in the mind of an innocent person, Jacobson, 503

U.S. at 553, it also must guard against a violation of due

process by ensuring that the evidence would support a

reasonable jury determination of guilt beyond reasonable

doubt. See In re Winship, 397 U.S. 358 (1970). When the

evidence fails to meet this strict standard, courts should,

and must, intervene. See Jacobson; United States v. Poehl-

man, 217 F.3d 692 (9th Cir. 2000); United States v. Brooks,

215 F.3d 842 (8th Cir. 2000).

20

In the decision under review, the Eleventh Circuit

asserted that in its review of the evidence, it must “make

all inferences in favor of the government.” A-2.

(Emphasis added). The court relied on United States v.

Francis, 131 F.3d 1452 (11th Cir. 1997), cert. denied, 525 U.S.

986 (1998), and United States v. Brown, 43 F.3d 618 (11th

Cir.), cert. denied, 516 U.S. 917 (1995), for this proposition.

These cases too, which also concerned entrapment, sim-

ilarly declared that in reviewing evidence of predisposi-

tion, the evidence and all inferences must be viewed in

favor of the government. Francis at 1456; Brown at 622.

Contrary to the decision below, this Court’s caselaw,

as well as caselaw from other federal circuit courts of

appeals, make clear that inferences may be drawn in the

government's favor only if they are reasonable. In Jacobson

v. United States, 503 U.S. 540 (1992), the dissenters crit-

icized the majority for “fail[ing] to draw all reasonable

inferences in the government’s favor.” Id. at 559; cf. Jack-

son v. Virginia, 443 U.S. 307, 319 (1979) (jury entitled to

resolve conflicts in the evidence but only allowed to draw

“reasonable inferences” from basic facts). Accordingly,

this Court and others have reversed defendants’ convic-

tions in entrapment cases precisely because the govern-

ment’s evidence and inferences of predisposition were

unreasonable. E.g., Jacobson; Sherman v. United States, 356

U.S. 369 (1958); Poehlman; Brooks. The decision below

conflicts with these decisions. The court below has

departed from the accepted and usual course of judicial

proceedings. S.Ct. R. 10(a).

While the federal circuit courts of appeals have uni-

formly rejected the prior distinction for circumstantial

evidence cases followed by many courts that required the

21

government to exclude all reasonable hypotheses of inno-

cence, e.g., United States v. Collazo-Aponte, 216 F.3d 163,

192 (1st Cir.) pet. for cert. filed, No. 00-8391 (Dec. 18, 2000);

United States v. Reveles, 190 F.3d 678, 687 (5th Cir. 1999);

United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B

1982), aff'd on other grounds, 462 U.S. 356 (1983), they,

nonetheless, are sensitive to the vagaries of circumstan-

tial evidence end review it with heightened scrutiny.

Courts generally recognize, for instance, that if the evi-

dence viewed in the light most favorable to the prosecu-

tion gives equal or nearly equal circumstantial support to

a theory of guilt and a theory of innocence, then a reason-

able jury must entertain a reasonable doubt. E.g., United

Siates v. Colon-Munoz, 192 F.3d 210, 219 (1st Cir. 1999),

cert. denied, 529 U.S. 1055 (2000); United States v. Reveles,

190 F.3d at 687; United States v. Ortega Reyna, 148 F.3d 540,

543 (Sth Cir. 1998); Cosby v. Jones, 682 F.2d 1373 (11th Cir.

1982). Even the Eleventh Circuit in United States v. Vil-

legas, 911 F.2d 623 (11th Cir. 1990), warned that “inferred

factual conclusions based on circumstantial evidence are

permitted only when, and to the extent that, human

experience indicates a probability that certain conse-

quences can and do follow from the basic circumstantial

facts.” Id. at 628 (citation omitted). Accordingly, the gov-

ernment is only entitled to the benefit of the reasonable

inferences in an appellate court’s evaluation of the suffi-

ciency of the evidence. E.g., Collazo-Aponte, 216 F.3d at

192; Colon-Munoz, 192 F.3d at 219; Ortega Reyna, 148 F.3d

at 543; United States v. Frost, 125 F.3d 346, 354 (6th Cir.

1997), cert. denied, 525 U.S. 810 (1998); United States v.

Leoz-Quijada, 107 F.3d 786, 794 (10th Cir. 1997); United

States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996), cert. denied,

520 U.S. 1179 (1997).

22

As in Jacobson, in the context of entrapment cases, the

federal circuit courts of appeals uniformly allow the gov-

ernment the benefit of only reasonable inferences in deter-

mining whether the government’s proof has overcome a

defendant's claim of entrapment and, more specifically,

lack of predisposition. E.g., United States v. Duran, 133

F.3d 1324, 1336 (10th Cir. 1998); United States v. Salerno, 66

F.3d 544, 548 (2d Cir. 1995), cert. denied sub nom., Di

Girolamo v. United States, 516 U.S. 1063 (1996); United

States v. Gonzalez, 19 F.3d 1169, 1172 (7th Cir. 1994); United

States v. Beissel, 901 F.2d 1467, 1469 (8th Cir. 1990); United

States v. Jannotti, 673 F.2d 578, 599 (3d Cir.), cert. denied,

457 U.S. 1106 (1982). The distinction between construing

all inferences in favor of the government as the court did

below, and accepting only reasonable inferences in favor of

the government as these cases dictate, is critical. While a

defendant certainly carries a heavy burden on appeal to

demonstrate entrapment as a matter of law, a rule allow-

ing an appellate court to consider all inferences in favor

of the government in reviewing the evidence would pre-

sent an insurmountable barrier to effective judicial

review. Even if a strained reading of the record below

viewing all inferences in favor of the government might

allow an affirmance, restricting such inferences to only

reasonable ones would not.

The standard employed by the court below, accepting

all inferences of predisposition in favor of the govern-

ment, constitutes an abdication of the court’s double

responsibility in entrapment cases. The decision of the _

Eleventh Circuit conflicts with Jacobson and the numerous

cited decisions of the federal circuit courts of appeals. To

correct the Eleventh Circuit’s misapplication of the law,

ea ey ee

Ye

this Court should review the decision below and reverse

Mr. Proven’s conviction.

CONCLUSION

For these reasons, Petitioner respectfully prays that

this Court grant its Writ of Certiorari.

Respectfully submitted,

BENJAMIN S. WaxMAN, Esquire

ALAN S. Ross, Esquire

Rossins, TUNKEY, Ross,

AMSEL, RAaBEN & WaAxMAN &

EIGLARSH, P.A.

2250 Southwest Third Avenue

Fourth Floor

Miami, Florida 33129

(305) 858-9550

:

:

In The

Supreme Court of the United States

o-—

DONN R. PROVEN,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari To The

Eleventh Circuit Court Of Appeals

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

TABLE OF CONTENTS

PAGE(S)

Opinion of Eleventh Circuit Court of Appeals...... A-1

Denial Of Reneaeie sac sisson seaeesesaae esses A-3

Def. Ex. 63, April 13, 1997, Fax from “Donn” to

tte PEEP TEP UTE er TT eres Po eee A-4

Excerpt of Def. Ex. 46A, Transcript of conversa-

tion between broker Manuel Oliveira and

informant Redditt on April 15, 1997, pg. 1.......1 A-6

Excerpts of Gov. Ex. 1A, Transcript of conversa-

tion between Proven and informant Redditt on

April 23, 1997, pgs. 9, 10, 17, 19, 25, 37, 40...... A-8

Excerpt of Gov. Ex. 4A, Transcript of conversation

between codefendant Fairchild and informant

Redditt on May 7, 1997, pgs. 1-2 ............... A-13

Excerpts of Gov. Ex. 24A, Transcript of conversa-

tion between Proven, co-defendant Fairchild,

and informant Redditt on July 2, 1997, pgs. 3-4,

Oo icikc fi Re eew ned eee eee A-16

A-1

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-4374

D.C. Docket No. 97-06104-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONN R. PROVEN, ROBERT S. FAIRCHILD, JR.,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Fiorida

(Filed November 13, 2000)

Before BARKETT and WILSON, Circuit Judges, and

GEORGE”, District Judge.

PER CURIAM:

Donn R. Proven and Robert Fairchild appeal the

denial of their motion for judgment of acquittal based on

entrapment relating to their conviction for (1) conspiracy

to violate 22 U.S.C. § 2278 (Arms Export Control Act), 18

U.S.C. § 1001 (False Statement to a Federal Agency), and

50 U.S.C. §§ 1702 and 1705 (International Emergency

* Honorable Lloyd D. George, U.S. District Judge for the

District of Nevada, sitting by designation.

A-2

Economic Powers Act), all in violation of 18 U.S.C. § 371;

and (2) attempting to deal in property intended for expor-

tation to Iraq, in violation of 50 U.S.C. §§ 1702 and 1705

and 18 U.S.C. § 2.

We review the district court’s denial of a motion for

judgment of acquittal de novo. United States v. Francis, 131

F.3d 1452, 1456 (11th Cir. 1997). In doing so, we view the

evidence and make all inferences in favor of the govern-

ment. Id.; see United States v. Brown, 43 F.3d 618 (11th Cir.

1995). We cannot overturn the jury’s verdict if any rea-

sonable construction of the evidence would allow the jury

to find the defendants’ guilty beyond a reasonable doubt.

Francis, 131 F.3d at 1456; Brown, 43 F.3d at 622.

In light of this standard, having reviewed the record

and considered the arguments of counsel, we cannot say

that the defendants were entitled to a judgment of acquit-

tal as a matter of law. Accordingly, the convictions in this

case must be AFFIRMED.

A-3

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-4374-EE

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONN R. PROVEN,

ROBERT S. FAIRCHILD, JR.,

Defendants-Appellants.

On Appeal from the United States District Court

for the Southern District of Florida

(FILED DEC 18 2000)

BEFORE: BARKETT, WILSON, Circuit Judges, and

GEORGE”, District Judge.

PER CURIAM:

The petition(s) for rehearing filed by Donn R. Proven

is DENIED.

ENTERED FOR THE COURT:

/s/ ROSEMARY BARKETT

UNITED STATES CIRCUIT JUDGE

A-4

EXCERPT OF DEFENDANT'S EXHIBIT 63

13 April 1997

Glenn:

This is to confirm-our conversation of today regarding

your E-Mail of 10 April 97 19:17:05 EDT I will answer the

Questions in numerical order.

1. PMI I will be the EXCLUSIVE owner of the Aircraft as

we plan to own the aircraft with your client’s money. This

will tie us all in and failure to perform will cost the non-

performer dearly.

2. We have NO intention of disclosing any of the aircraft

location(s) or there [sic] maintenance information and/or

serial numbers until a $75K per aircraft deposit (non-

refundable) has cleared our bank.

3. The cost of shipping the birds will be part of the final

sale price but will be included in the transaction. As we

discussed, it is in all of our best interests to ship the birds

(2) to a container. Our plan is to remove the main rotor

blades and the tail section which will allow the two birds

per container. We will also meet the shipment at its final

destination. We will then reinstall the components and

test fly each aircraft. This is assuming we have a training

and maintenance contract in addition to the sale of the

aircraft. Frankly, we would be reluctant to sell the aircraft

without maintenance and training.

4. We can not involve ourselves in non-disclosure with

the sale of aircraft, training on them, or maintenance of

them. In order for us to sell them we need US State

A-5

Department participation in the contract process and

there [sic] approval of the sale.

5. The question of commissions on the sale is not our

issue. We will own the aircraft and our deal is with you

on your participation in the sale so if your client has

commission commitments, that is his problem.

6. Your associates attempt to show the limited market

for these aircraft does show knowledge of the market but

they are on the wrong course if they think the market has

either the number or the quality of aircraft available for

this kind of money. It is in fact the very reason they need

to act quickly and not try to negotiate price concessions.

Glenn. Spare parts on this deal could also be part of this -

If they are willing to buy 40 or more aircraft. However,

we will not sell parts without training and maintenance.

All these birds are AIRWORTHY'!! Bob has started with

the agents for these aircraft - we should have an answer

by the end of the week. It is possible they are already

sold.

Keep in touch

SemperFi

Donn

[Bob I am home call me on this]

A-6

EXCERPT OF DEFENDANT'S EXHIBIT 46A

Call from Manuel OLIVEIRA to SA-23-WP on April 15,

1997. This conversation was terminated at approximately

1:25 p.m. Page 1

MO:

CIE

Manuel OLIVEIRA

SA-23-WP

Recording starts

MO:

Who want to sell them, they’re owners of the air-

craft, uha, they have no intention. I’m just basically

recapping what their uha, what uha, the guy’s,

Glenn MORRIS, fax to be was. They have no inten-

tion of disclosing the location of the aircraft’s or

serial numbers until they get the deposit of seventy

five thousand dollars non-refundable towards the

aircraft and they’ve cleared banks uha, the ship-

ping costs will have to be part of the final sale and

uha, and if uha, they’re basically saying aside from

rotors and tails sections being removed and, and

they probably can put two uha, two per container

and uha, they will uha, they will assemble them

and on final uha, wherever the destination is going

to be. Uha, they says we cannot involved ourselves

in a non-disclosure with the sale of the aircraft,

trainer, maintenance and the team in order for us

to sell the aircraft uha, we need U.S. State Depart-

ment participation in a contract uha, in the contact

[sic] process and their approval of the sale. Uha,

the questions of commissions, they’re saying the

uha, they disagree with 10% uha, they would

rather give us what they want to sell the aircrafts

for and we could mark up from there. And uha,

they agree of course that they are limited to a very

limited market but they are saying that uha, for the

few customer, they are big players and they are

Betas phe nee. > Als's eee

CI:

A-7

shortage of it and they go on to say that uha, I

guess maybe some were sold or so they don’t

specify so but they are saying that there are proba-

bly going to be twenty five uha, of these aircraft

for sale uha, as apposed [sic] to the initial fifty and

uha, he’s gonna try to get me more information. So,

I don’t know if you want to any further with this

or not. Get back to your people this is what they

are telling me and uha. .

Send me a copy of that fax.

* * »

A-8

EXCERPTS OF GOVERNMENT'S EXHIBIT 1A

Meeting on April 23, 1997, between Hugh Redditt, Glenn

MORRIS, Robert FAIRCHILD and Donn PROVEN in Fort

Lauderdale, Florida.

[Page 9]

PROVEN:

We need, we need, we need to lay a couple

things on the line. First of all, once we have a

letter of intent, we are perfectly willing to

share the lineage, but I think that we should

talk in general natures helicopter versus heli-

copter versus by what we got. We got twenty

five cherrys, um, I, I expect that they are in

fact, ah, flight folded in Lybell Helicopter in

storage. But when they came out of service

the high time bird had twelve thousand

hours and the low time bird had four thou-

sand hours and you and I both know there’s

very few places that we can find helicopters

manufactured November ‘72 from December

‘71 alpha models with all the changes made

on them all out of the book and apparently all

the log books are clean. So, what I think we

got here is a real cherry one time and one

time only, you know, everybody says that in a

deal, but I really got a gut feeling think that

these are really good. I'll tell ya why I’m so

high on these, because whoever we sell this

to, I desire, I desire to sell the helicopters to

some kind of training and operatioal use of

these helicopters and the reason why that is

because I’m gonna be responsible for the

maintenance.

A-9

Redditt: Why are you gonna be responsible for the

maintenance?

PROVEN: ‘Cause I’m gonna get a maintenance contract

with them...

Redditt: When you sell them...

PROVEN: Yes.

[Page 10]

Redditt: So the airplanes aren’t owned by you at the

moment? They’re owned by someone else.

PROVEN: No, no.

Redditt: The ah, tryin’ to find a home for these airplanes

through civilian channels would be virtually

impossible. The ah, how sensitive are you

about ah, where the airplanes would go and the

end use?

PROVEN: Um, I have to have squeaky clean where they

go to clear the U.S. Department uh, I mean

uh, the name of that...

FAIRCHILD: End use...

PROVEN: End user certificate...

Redditt: Uh-uh.

PROVEN: That walks on water because it’s gotta clear

bank and the State Department.

[Page 17]

Redditt: Um, I’m hung up on the three hundred and

fifty thousand dollars. The three hundred and

fifty thousand dollar number is the kind of

A-10

number that you would expect to get from

somebody that wouldn’t do you a friendly guy,

someone that wouldn’t be able to get you an

end user certificate, ah,

PROVEN: These are the people that we have dealt with

so far.

Redditt: Well, I mean, if you have, if you have, and it

could be arranged, I’m certain, that these air-

planes could go to an unfriendly place that

couldn’t provide you with an end user certifi-

cate, ah, maybe three hundred and fifty thou-

sand dollars isn’t too far.

PROVEN: Yeah, but there’s one little hitch in that sce-

nario, I’m not about to do that.

Redditt: Okay, well then you’re gonna have to be more

realistic about the selling price.

PROVEN: Alright.

[Page 19]

PROVEN: Canada had a hundred twenty five to hun-

dred and fifty thousand dollars (inaudible).

I’d rather walk away from it than do that and

I don’t have a particular aircraft business. I

want to sell them to somebody who wants the

package, I want them to not only buy these

aircraft I want to buy maintenance contracts

and agreements and a training contract for

(inaudible).

Redditt: Well, I mean, if you can do all of that, I mean, if

you can get a maintenance contact [sic], a train-

ing contract and all of that business along with

the airplanes that, that’s fine. I’m not in the

maintenance or training business.

PROVEN:

[Page 25]

Redditt:

PROVEN:

Redditt:

A-11

Well, that’s how I back into this thing. I’m not

in the airplane business, I understand it. But

our business is selling training and military

and law enforcement operations who use air-

craft in, in and as a portion of whatever it is

that they are doing and we generally get into

the acquisition business because with the L,

it’s all wonderful, we don’t have any air-

planes and if we did, we don’t have any

trained pilots or planes.

> > *

If those people really don’t care about the user

certificates. Then we could go ahead and pro-

ceed and sell these airplanes for probably three

hundred and fifty thousand dollars, and you

guys aren’t even (inaudible) and if you want a

training contact [sic] and a maintenance contact

[sic] that could be a side issue contingent upon

the sale but a separate issue totally so that you

guys are out the loop.

Yeah.

Then on pay day ah, since you guys are talking

to MORRIS, MORRIS then is the guy who dis-

tributes all the funds. If that can be arranged

than maybe your three fifty could work. The

ah, um, I, I assume that beyond the training

and maintenance that you were interested in,

there’s something in it for you if you're part of

this transaction and make the airplanes go

away with the owner.

FAIRCHILD: No.

PROVEN:

Redditt:

No.

You're not.

A-12

FAIRCHILD: No.

[Page 37]

Redditt: The ah, the ah, we ah, we ah, don’t need that.

Because this is no big deal. From the scheme of

things this is just another normal transaction.

So if you can get back to your guys and tell

them what we discussed and there’s no prob-

lem with money, the buyers will have no prob-

lem getting this money up based on deposit, I

mean based on inspection and ah, no problem.

PROVEN: And If we produce an end user certificate?

Redditt: I would think so. If you want three hundred

and fifty thousand dollars per machine... .

FAIRCHILD: What about two hundred?

Redditt: No.

[Page 40]

PROVEN: Well, to give you an idea of my age, the first

presidential election that I ever voted in, I

voted for Barry Goldwater and ah, I belong to

no political organized party for the Republi-

cans but I’m not a Republican any more

because my president, the one that just left

office, sold weapons to my enemy, fuck him

and the Republican party.

Redditt: Who’s the enemy?

PROVEN: Iran.

Redditt: Oh.

A-13

EXCERPTS OF GOVERNMENT'S EXHIBIT 4A

Telephone call from Robert FAIRCHILD to Hugh Redditt

on May 7, 1997. Ending time was approximately 10:35

a.m. Pages 1-2

FAIRCHILD:

Robert FAIRCHILD

Redditt: Hugh Redditt

Recording starts

FAIRCHILD:

When we first met...

Redditt: Uh-hu.

FAIRCHILD:

PMI, the company that Donn and I are

with, ah, we were thinking that because of

all the problems that we have perceived on

the sellers end that PMI would ah, acquire

title of those aircraft for the buyer. That is

still a possibility, if you would like to

approach it from that way. Uh, if they

would like to put the money up and if they

are prepared to do cash, PMI could acquire

the aircraft. Now I’m checking to see if we

can bring them into the country and right

now I have not found a reason that I can’t.

Redditt: What country?

FAIRCHILD:

LH RS

Redditt: Uh-hu.

FAIRCHILD:

Uh, and I’m trying to do some other things

for some police departments and they

acquire, as you are well aware, they’re

acquiring National Guard helicopter and

stuff like that and repainting them and fit-

ting them and using them for police work.

Uh, but PMI would not even have to pro-

duce an end user agreement until we

EE ee

A-14

bought them and then we would bring

them into the country. We could bring them

into the United States and then sell them

piece meal to police departments or you

know whatever and I don’t think that that’s

a big deal at this point. But it, it depends on

sort on your buyer, ah, and I don’t, I’m at a

real loss as to why under those circum-

stances, why we couldn’t just crate them

two to a container and put them on a damn

railroad and bring them into this country.

Redditt: Well that’s not where my buyer wants them. He

wants them shipped. I'll know definitely where

he wants them shipped later today.

FAIRCHILD: Well, but, but I’m sayin’ that if, that if, we

needed to do it that way...

Redditt: Uh-huh.

FAIRCHILD: Or if we needed to put it on a uh, boat and

ship it to Houston so that, you know, the

paperwork for PMI was taken care of as

long as the Canadian government got a, a

clean end user statement from PMI that

they are going to go to Houston, Texas, or

whatever .

Redditt: Well, how would they, how would you then

tranship them somewhere else if you are the

owner?

FAIRCHILD: Well, then I would sell them to whoever.

Redditt: Yeah, I know, but I mean, ah, they would still

have to have an end user’s certificate.

tow

A-16

EXCERPTS OF GOVERNMENT'S EXHIBIT 24A

Transcript of conversation between Proven, co-defendant

Fairchild, and informant Redditt on July 2, 1997.

[Page 3]

PROVEN:

Redditt:

PROVEN:

Redditt:

[Page 4]

PROVEN:

Redditt:

PROVEN:

Redditt:

[Page 8]

Redditt:

PROVEN:

Redditt:

PROVEN:

Redditt:

* * *

And, and... I, I wasn’t, I wasn’t excited I

was frustrated.

No, I understand. I can understand exactly

where you would be coming from.

Yeah, well.

It’s not, look trust me, I’m frustrated too.

I know.

I want to get this show on the road otherwise

I’m gonna lose confidence with the guys that

want to spend this dough.

Exactly right.

And ah, time kills deals.

* * *

See the situation here now as I see it is that

ah, RAVEN wants to buy these airplanes...

Yes. :

I have the keys to the dough.

Yes.

All you have to do is present me with the, the

[Page 9] paperwork that is required by the

buyers.

el

PROVEN:

Redditt:

PROVEN:

Redditt:

PROVEN:

Redditt:

PROVEN:

Redditt:

PROVEN:

Redditt:

PROVEN:

Redditt:

A-17

Okay.

And the buyers are spooky because they

have been had many times before.

Okay. ~

And they do things in devious ways and ah,

there’s no sense in, you know, reminding you

how the mind of an Iraqi works.

Right, right.

But ah, they do things that might not seem

logically correct to you or me from our cul-

tures standpoint...

Exactly.

They have their own...

Their own, it’s their own Arabic style.

Yup. So what every that is, we just be accom-

modating as we can to them, and at the same

time make sure Mr. FINLAY isa...

Is playing the game the way he ought to be.

Yeah.