# Petition for Writ of Certiorari — Proven v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0970%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 532 U.S. 974 ## Text ' 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. + 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0970%3A1. Public record. Not legal advice.