Opposition Brief — Vennes v. An Unknown Number of Unidentified Agents

Se So Re 8

) Supreme Court, US. |

() FILED

J

DEC 9 1894

Foil ei aaatianaS

In the Supreme Court of the Gmted States

OCTOBER TERM, 1994

FRANK E. VENNES, JR., PETITIONER

Vv.

AN UNKNOWN NUMBER OF UNIDENTIFIED AGENTS

OF THE UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DREw S. Days, III

Solicitor General

LORETTA C. ARGRETT

Assistant Attorney General

JONATHAN S. COHEN

JONATHAN A. WASSERMAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether petitioner stated a cause of action under |

Bivens v. Six Unknown Named Agents of the Fed. E

Bureau of Narcotics, 403 U.S. 388 (1971), for alleged

violations of his substantive due process rights.

eal

(I) 4

a r= FF rts wie (79 + a Sees eae

4 ee ae

we” ee - Pe ee ee ed FR ee ee, Oe La a al Aah i a ag

FOO TS Sy PR Ree oP RE oF ORES oe Pee ee Or ap OS eee aS eee Se TOE Rake PEN MADER TET te eae is, *

TABLE OF CONTENTS

YY vac sass cokes dectaiciosesbidsscssssestédesdseneceseiass.<.,...

Ri iesciniscishesttehnscsarcic otncsccncr ne

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 ( ee

FDIC v. Meyer, 114 S. Ct. 996 (1994) i iecilbedliiiteiasiines

ect nN nS OSE SO Ta Ae a

IV

Cases—Continued: Page

Wisniewski v. United States, 353 U.S. 901 (1957) .......... 9

Constitution, statutes and rules:

U.S. Const. :

SII FT Scitenlininttncdeisskabeintincsebaidieieilinicsait seeker 3

MIE. © si cisnnisnchaginbunchchaiasisieatedauianenameaiibamds aoa 3

MINING: - WHE cicinsncresdacignsddiistninbdssieiitscdactenosacusinaaiancidoais 3

IE: WEEE ccctachrdichrebidttiebdinclitminktiabiilauasine 3

Fare i EE. Mianssnhuccaninsngushasaindeddsniiodinteiasieatenienaalial 3

ME SE ie TUE. acncacisndhckcesabsepilbdinddedeigiiadvansieaibudanania 5, 8, 9, 10

Fed. R. Civ. P.:

BR GE Gicntacecsncsncnsninseicdinedsttshalinbiouisiadslicetieduaamenael 4,7

BRN: BID: csicessccinscdbcicdsdisubtinsddbidseliaatbkccpmre a. 7

Gn the Supreme Court of the Wnited States

OCTOBER TERM, 1994

No. 94-461

FRANK E. VENNES, JR., PETITIONER

Vv.

AN UNKNOWN NUMBER OF UNIDENTIFIED AGENTS

OF THE UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-23) is

reported at 26 F.3d 1448. The order of the district court

(Pet. App. 24-27) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 16, 1994. A petition for rehearing was denied on

August 10, 1994. Pet. App. 29. The petition for a writ of

certiorari was filed on September 13, 1994. The juris-

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

(1)

2

STATEMENT

1. In May, 1987, petitioner was charged in three

indictments returned in the District of North Dakota

with violations of the federal money-laundering, firearm,

and drug laws. In August, 1987, petitioner entered into a

plea agreement regarding those charges. Petitioner

agreed to plead guilty to one count of money laundering

and to plead no contest to one count of illegally selling a

firearm and one count of using a telephone to facilitate

the distribution of cocaine. The government agreed to

dismiss the other charges. See Pet. App. 3; C.A. App.

19-20, 57-58, 134-136.

In a hearing on petitioner’s pleas, the district court

questioned counsel about the no-contest pleas that

petitioner had agreed to make to two of the charges.

Counsel for petitioner explained that petitioner was

“prepared to defend himself on the basis of entrapment

[and] outrageous government conduct” but wished to

plead no contest because those defenses were “extremely

difficult” to prove. Pet. App. 3; C.A. App. 65. The

prosecutor explained that the government was not

insisting on guilty pleas to the two charges, because

petitioner “could make a fair case” that he had

committed the underlying offenses in order to recoup

$100,000 for an undercover agent 10 petitioner believed

was associated with organized crime. Pet. App. 3; C.A.

App. 67. The district court accepted petitioner’s pleas

after finding that they were knowing and voluntary, that

petitioner was guilty of money laundering, and that

petitioner understood that his no-contest pleas would be

treated as guilty pleas at sentencing. Petitioner was

sentenced to five years’ imprisonment. He did not appeal

his conviction or sentence. Pet. App. 3-4; C.A. App. 59-

101, 130-138.

3

2. Petitioner later filed two petitions for relief under

28 U.S.C. 2255. In the first petition, he claimed that his

trial attorney provided constitutionally deficient

representation because the attorney did not seek

dismissal of the charges on the grounds of entrapment

and outrageous government conduct. The district court

denied that petition. See Pet. App. 4. In affirming the

district court’s ruling, the Eighth Circuit observed that,

contrary to petitioner’s claim that his lawyer had not

adequately investigated the allegedly improper govern-

mental conduct, “[t]}he transcript of the [guilty plea]

hearing makes it clear that defense counsel was well

aware that his client had a factual basis for asserting

outrageous government conduct and entrapment, and

that these matters were considered and discussed at the

* * * hearing.” C.A. App. 335.

In his second petition under 28 U.S.C. 2255, petitioner

claimed that the government breached its plea

agreement with him by disclosing confidential

information to parole officials. Pet. App. 4-5; C.A. App.

337. After “carefully review[ing] the record,” the Eighth

Circuit affirmed the district court’s denial of the

petition, holding that “the district court thoroughly and

properly examined [petitioner’s] claims.” C.A. App. 338.

3. a. After completing his sentence, petitioner

brought this action against an unspecified number of

unnamed federal agents in the United States District

Court for the District of North Dakota, seeking money

damages under Bivens v. Six Unknown Named Agents

of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Petitioner claimed that the unnamed agents conspired to

violate his rights under the Fourth, Fifth, Sixth, and

Eighth Amendments. In support of that claim, he alleged

that he committed the money-laundering offense to

which he later pleaded guilty when he transported

4

$100,000 in currency to Switzerland without filing the

currency reports required by federal law. He alleged

that he did this at the behest of undercover federal

agents and that they supplied the currency. He also

alleged that, after the $100,000 was stolen from him,

undercover federal agents posing as mafia figures

coerced him into attempting to recoup the $100,000 by

committing the firearm and drug offenses to which he

later pleaded no contest. Petitioner further alleged that,

as part of the claimed conspiracy, agents of the Internal

Revenue Service (IRS) made false demands on him, and

imposed a levy on his property, for delinquent taxes.

Pet. App. 1-2, 5-6; C.A. App. 3-7. The government moved

to dismiss the complaint or in the alternative for

summary judgment.’

The district court dismissed petitioner’s claims to the

extent that they were based on alleged misconduct by

IRS agents. It held that the exclusive remedy for such

misconduct was provided by the Internal Revenue Code.

It granted summary judgment against petitioner with

respect to the remaining claims. It held that he was

estopped from asserting those claims because he had

pleaded guilty or no contest to the offenses that allegedly

1 As the court of appeals noted, petitioner “failed to name or

serve any agent, even though many of the undercover investi-

gators were named in his indictment or identified elsewhere in the

record of his criminal case.” Pet. App. 5 n.2. Petitioner served

the complaint only upon the U.S. Attorney and the Attorney

General, even though the United States was not named as a

defendant. See Fed. R. Civ. P. 4(i). The Assistant U.S. Attorney

who moved for dismissal or summary judgment and appeared in

the district court, purportedly on behalf of the. unnamed

defendants, was authorized by certain individuals to represent

them in the event that they were named as defendants.

5

arose from the government misconduct on which his

claims were based. Pet. App. 26-27.

b. On appeal, petitioner argued only that he had stated

a cause of action under Bivens for violations of his

substantive due process rights; he did not renew his

claims of violations of other constitutional rights. In

support of his substantive due process claim, he relied on

“a line of cases in the U.S. Supreme Court such as

Rochin v. California, 342 U.S. 165 [(1952)], U.S. v.

Russell, 411 U.S. 423 [(1973)], and Hampton v. United

States, 425 U.S. 484 [(1976)], that suggest the due process

clause * * * can be violated even in the absence of a

procedural violation by law enforcement authorities

who go too far in manufacturing a crime and inducing a

defendant into committing it.” Pet. C.A. Br. 21. He also

relied on Gunderson v. Schlueter, 904 F.2d 407, 410-411

(1990), in which the Eighth Circuit suggested that an

action might lie against state law enforcement officials

under 42 U.S.C. 1983 if their conduct was shown to be so

outrageous as to deprive the plaintiff of substantive due

process. Pet. C.A. Br. 21; see also Pet. C.A. Reply Br. 8.

The court of appeals affirmed, holding that petitioner

had failed to state a Bivens claim for violations of

substantive due process. Pet. App. 1-23. The court based

that holding on petitioner’s failure to raise defenses of

entrapment or outrageous government conduct in the

criminal proceeding against him. The court observed

that “[t]he alleged deprivation of [petitioner’s] rights

occurred during the criminal investigation and resulted

in his being charged with multiple crimes.” Id. at 9. The

court reasoned that “(bly pleading guilty, [petitioner]

elected to forego the post-deprivation process best suited

to determining whether the agents in fact violated his

due process rights—the criminal trial.” Ibid.’

Senior Circuit Judge Heaney dissented with respect to

the allegations in petitioner’s complaint that did not

concern IRS agents. Pet. App. 13-23. With respect to

those allegations, he discerned “no special factors” that

justified withholding a Bivens remedy. /d. at 13 (inter-

nal quotation marks omitted).

ARGUMENT

Petitioner renews his contention that his complaint

stated a cause of action under Bivens for violations of

substantive due process arising from alleged outrageous

conduct by law enforcement officials. Pet. 8-11. The

availability of a Bivens remedy for such conduct is not

the subject of a circuit conflict or any other reported

court of appeals decision of which we are aware.

Moreover, the court of appeals correctly held that

petitioner did not have a Bivens remedy in light of his

failure to raise (much less prove) a defense of outrageous

government conduct in the criminal proceeding against

him.

2 In the alternative, the court of appeals reasoned that the

proximate cause of the injuries for which petitioner sought to

recover—all of which stemmed from his imprisonment—was his

decision to plead guilty and no contest to certain charges pursuant

to a plea agreement, and not the alleged government misconduct

that gave rise to the charges against him. Pet. App. 10. The court

concluded that “[t]o the extent that the alleged outrageous

government conduct was not the proximate cause of [petitioner’s]

injuries, his damage claim must fail as a matter of law.” Ibid. The

court also concliided that a Bivens remedy for the alleged

misconduct by IRS agents was precluded by the availability of

statutory remedies for such misconduct. Jd. at 11-12.

3 As an initial matter, it is doubtful that the district court had

authority to adjudicate petitioner’s claims. To the extent that

7

1. Petitioner contends that Bivens provides a civil

remedy against law enforcement officials “who go to[o]

far in manufacturing a crime and in inducing an

petitioner was suing respondents in their individual capacities, it is

not clear that ‘the district court had personal jurisdiction over any

defendant. The complaint did not identify any federal agent by

name, even though, as the court of appeals noted, several agents

involved in the criminal investigation of petitioner had been named

in the indictment and other parts of the record of the criminal

proceeding against him. See Pet. App. 5 n.2. Nor did petitioner

serve the complaint upon any individual federal agent. Instead, he

served only the U.S. Attorney and the Attorney General; service

on them, however, would have been effective in conferring

personal jurisdiction only over the United States, which was not

named as a defendant. See Fed. R. Civ. P. 4(i); see also, e.g.,

Friedman v. Estate of Presser, 929 F.2d 1151, 1155-1156 (6th Cir.

1991). It is not clear whether the defect in service was waived by

the appearance of an Assistant U.S. Attorney (AUSA) in the

district court. The AUSA was acting on behalf of certain

individuals who asked him to represent them in the event that

they were made named defendants. Only those individuals could

be deemed to have waived personal service under Fed. R. Civ. P.

12(h)(1). It is purely speculative on this record whether those

individuals were the same individuals encompassed by the class of

unnamed defendants to which the complaint referred. The

government contended in the court of appeals that, in light of

petitioner’s failure to name any specific officers as defendants and

the vague and conclusory nature of his allegations, his action was,

in reality, an action against the United States that was barred by

sovereign immunity. See Gov’t C.A. Br. 14-17. The court of

appeals stated that petitioner’s “conclusory, overbroad complaint

lends considerable credence to this contention.” Pet. App. 5 n.2.

The court of appeals declined to rule on the contention, however,

because “it was not raised in the district court.” Ibid. However,

“(sovereign immunity is jurisdictional in nature,” FDIC v. Meyer,

114 S. Ct. 996, 1000 (1994), and may be raised as a defense at any

stage of the proceeding, see United States v. United States

Fidelity & Guar. Co., 309 U.S. 506, 513 (1940); see also Minnesota v.

United States, 305 U.S. 382, 388-389 (1939).

8

otherwise law-abiding citizen into committing that

crime.” Pet. 8-9. Petitioner does not cite (and we are

not aware of) any decision of this Court or another court

of appeals that addresses the question.

In United States v. Russell, 411 U.S. 428, 431-432

(1973), this Court stated: “[W]e may some day be

presented with a situation in which the conduct of law

enforcement agents is so outrageous that due process

principles would absolutely bar the government from

invoking judicial processes to obtain a conviction.” See

also Hampton v. United States, 425 U.S. 484, 492-493

(1975) (Powell, J., concurring); cf. Moran v. Burbine, 475

U.S. 412, 432 (1986). Several courts of appeals likewise

have recognized the possible existence of a criminal

defense of “outrageous government conduct.” See, ¢.g.,

United States v. Mosley, 965 F.2d 906, 908-909 (10th Cir.

1992); United States v. Restrepo, 930 F.2d 705, 712 (9th

Cir. 1991); United States v. Robinson, 763 F.2d 778, 785

(6th Cir. 1985); United States v. Reifsteck, 535 F.2d 1030,

1034-1035 (8th Cir. 1976); but see United States v. Miller,

891 F.2d 1265, 1271-1273 (7th Cir. 1989) (Easterbrook, J.,

concurring). Only two courts of appeals, however, have

reversed a conviction because of “outrageous govern-

ment conduct.” See United States v. Twigg, 588 F.2d 373

(3d Cir. 1978); Greene v. United States, 454 F.2d 783 (9th

Cir. 1971); cf. United States v. Cuervelo, 949 F.2d 559 (2d

Cir. 1991) (remanding for further proceedings on defense

of outrageous government conduct). And no court of

appeals has held that such conduct supports recovery for

money damages in a civil action under Bivens or Section

1983.

Petitioner implicitly acknowledges the absence of

legal support for his Bivens claim when he states that

“th[{is] action was commenced in reliance o[n] the 8th

Circuit Court of Appeals’ decision in Gunderson.” Pet.

8. Gunderson suggested, without holding, that relief

under Section 1983 might lie for outrageous government

conduct. 904 F.2d at 410-411. In the present case, the

Eighth Circuit correctly characterized the Bivens issue

before it as “unique” and resolved that issue primarily

by reference to its prior decision in Gunderson. Pet.

App. 6; see also id, at 8, 11. The Eighth Circuit’s holding

that petitioner did not meet the standard for a civil

remedy suggested in Gunderson does not warrant

review by this Court. See Wisniewski v. United States,

353 U.S. 901, 902 (1957) (per curiam).

2. In any event, and assuming arguendo that

Gunderson provides the proper standard for Bivens

relief here (as petitioner argues, see Pet. 9), the court of

appeals correctly held that Gunderson does not aid

petitioner.

In Gunderson, the plaintiff sought damages under 42

U.S.C. 1983 from a state law enforcement officer who

allegedly entrapped him into conduct that gave rise to

state criminal charges. 904 F.2d at 408-409. The plaintiff

had been acquitted of the charges after raising, and

apparently establishing, an entrapment defense at the

criminal trial. Id. at 408, 411. The Eighth Circuit

affirmed the dismissal of his Section 1983 claim. It held

that he had not met the “quite high” standard of proof

necessary to establish outrageous government conduct.

904 F.2d at 410. In addition, it reasoned that the

plaintiff’s acquittal should be “the full extent of his

remedy,” because “[flinding a due process violation here

would bring us too close to converting every successful

entrapment defense into a section 1983 claim for

damages.” Id. at 411.

The Eighth Circuit in this case correctly concluded

that petitioner “propose[d] an{] even greater conversion”

than was urged by the plaintiff in Gunderson, because

Tg Sings en ee

10

petitioner, unlike the plaintiff in Gunderson, did not

even raise, much less prove, defenses of entrapment or

outrageous government conduct in the criminal

proceeding against him. See Pet. App. 8. The court of

appeals observed that allowing plaintiffs to maintain

Bivens actions based on conduct that could have been,

but was not, raised in prior criminal proceedings would

“flood the federal courts with constitutional damage

claims by the many criminal ‘defendants who leave the

criminal process convinced that they have been

prosecuted.and convicted unfairly.” Ibid. ©

Petitioner offers no convincing reason why he should

be allowed to maintain a Bivens claim despite his failure

- at his trial to raise the alleged government misconduct

underlying the Bivens claim. Although petitioner

asserts that “[h]le was the victim of an incompetent

defense [counsel],” Pet. 6, that assertion was resolved

against him in his first collateral challenge to his

conviction, when both courts below rejected his claim of

ineffective assistance of counsel at trial. See p. 3, supra.

Petitioner also suggests that the Eighth Circuit

erroneously applied the doctrine of collateral estoppel

against him in relying on his failure to raise a claim of

outrageous government conduct in the criminal pro-

ceeding. See Pet. 10. The court of appeals, however,

expressly recognized that the doctrine of collateral

estoppel was inapplicable here. See Pet. App. 8-9, citing

Haring v. Prosise, 462 U.S. 306, 322-n.11 (1983) (guilty

plea in state criminal proceeding does not have collateral

estoppel effect in later action under 42 U.S.C. 1983).

Instead, the court of appeals merely held that a criminal

trial is the proper forum in which to raise a claim of

governmental misconduct of the sort alleged here in the

first instance. See Pet. App. 9. That holding was

consistent with Gunderson. See Gunderson, 904 F.2d at

ti: Sate tat Fe Ee ee oe PP. ay Cle Ge DSRS eee ae Fe Y; FOREN db demas eA ie Ti 8d Seals s aar A Ba ca i an

11

411; cf. Heck v. Humphrey, 114 S. Ct. 2864, 2372 (1994)

(“when a state prisoner seeks damages in a § 1983 suit,

the district court must consider whether a judgment in

favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the

complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already

been invalidated”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Drew S. Days, III

Solicitor General

LORETTA C. ARGRETT

Assistant Attorney General

JONATHAN S. COHEN

JONATHAN A. WASSERMAN

8

DECEMBER 1994