Opposition Brief — Bell v. United States

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In the Supreme Court of the United States

OCTOBER TERM, 1994

DWIGHT R. BELL, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

DReEw S. Days, III

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

JOHN M. SMITH

Colonel, USA

LYLE D. JENTZER

Major, USA

MICHAEL E. MULLIGAN

Captain, USA

Appellate Government Counsel

Government Appellate Division

Falls Church, VA 22041-5013

‘BEST AVAILABLE COPY | iam

QUESTIONS PRESENTED

1. Whether petitioner was entrapped as a matter of

law.

2. Whether the Drug Abuse Prevention, Treatment,

and Rehabilitation Act, 21 U.S.C. 1101 et seq., and imple-

menting regulations, forbade military investigators from

subjecting petitioner to an undercover investigation.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Jacobson v. United States, 112 S. Ct. 1535 (1992) ......... 9, 10, 11

Kaisha v. U.S. Philips Corp., 114 S. Ct. 425 (1993) ......... 13

Sherman v. United States, 356 U.S. 369 (1958) ............ 9, 11, 12

Sorrells v. United States, 287 U.S. 485 (1932) ................. 9

United States v. Akinseye, 802 F.2d 740 (4th Cir.

1986), cert. denied, 482 U.S. 916 (1987) oo... 10

United States v. Caceres, 440 U.S. 741 (1979) .........cc..e ee. 12

United States v. Collins, 957 F.2d 72 (2d Cir.), cert.

oR EE a Fo |) 10

United States v. Cooper, 33 M.J. 356 (C.M.A. 1991) ....... , 5

United States v. Ford, 918 F.2d 1343 (8th Cir. 1990) ...... 10

Constitution, statutes and rule:

U.S. Const. Amend. V (Due Process Clause) ................... 7

Drug Abuse Prevention, Treatment, and Rehabilitation

Me TE OE DD, srcinincsccciccesscncorsessuceccsevesssoseee 11

Uniform Code of Military Justice, Art. 112a, 10 U.S.C.

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(III)

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-630

DWIGHT R. BELL, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The order of the Court of Military Appeals (now called

the United States Court of Appeals for the Armed

Forces) denying review (Pet. App. F1) is unpublished,

but the decision is noted at 41 M.J. 77 (Table). The

opinion of the United States Army Court of Military

Review (now the United States Army Court of Criminal

Appeals) is unreported. Pet. App. E1-E2. At an earlier

stage of the proceedings, the Court of Military Appeals

issued an opinion (Pet. App. D1-D18) that is reported at

38 M.J. 358,' and the Army Court of Military Review

1 The petition’s appendix does not set forth page numbers for

this 18-page opinion. We have numbered the pages of the court’s

(1)

2

issued an opinion (Pet. App. C1-C8) that is reported at 34

M.J. 846.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on July 7, 1994. The petition for a writ of

certiorari was filed on October 5, 1994. The jurisdiction

of this Court is invoked under 28 U.S.C. 1259(3) (Supp. V

1993).

STATEMENT

Petitioner was convicted by-a general court-martial of

using cocaine and two specifications of distributing

cocaine, in violation of Article 112a, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. 912a. On

petitioner’s initial appeal, the United States Court of

Military Appeals set aside petitioner’s conviction for

using cocaine and remanded the case for reassessment of

the sentence. Pet. App. D1-D18. On remand, the Army

Court of Military Review ordered that petitioner be

confined for nine years, that he forfeit all pay and

allowances, and that his rank be reduced to Private E1.

Id. at K2. The United States Court of Military Appeals

denied further review. Jd. at F1.

1. In late September 1989, Private Dwight Nolte and

three other soldiers were caught smoking marijuana and

were arrested. Following Nolte’s arrest, a friend sug-

gested to him that he should try to obtain leniency by

offering his cooperation to the Criminal Investigation

Division Command (CID). Nolte decided to take his

friend’s advice. Tr. 110-111.

On September 24, 1989, Nolte proffered his cocperation

to the CID. When asked by CID agents if he knew anyone

opinion “D1” through “D18” and we have used that pagination

system in this brief.

SS eae ee

5

who would “deal” cocaine, Nolte gave petitioner’s name.

According to Nolte, petitioner had discussed the

possibility of dealing drugs with Nolte, and petitioner

had lamented that he lacked enough money to do so. A

few months earlier petitioner had also borrowed $10 from

Nolte to buy some “erack.” Tr. 111-112, 120,176. While

Nolte knew that petitioner had referred himself to the

Army Alcohol and Drug Abuse Prevention and Control

Program (ADAPCP) at Fort Campbell, he did not share

that information with the CID agents. Pet. App. C3; Tr.

110-112, 120, 176.

The CID registered Nolte as a confidential “source,”

assigned him to an undercover agent, and immediately

sent him and the agent out together to attempt to

purchase drugs from petitioner. Observing petitioner

driving his car, Nolte waved petitioner down and

introduced the undercover agent to petitioner as a

student from the University of Nebraska. Nolte asked if

petitioner would sell some crack to the agent. Petitioner

replied “sure[,] no problem,” and “[v]irtually instantly

* * * hopp[ed] into Nolte’s car and directed the agent

and Nolte to a location in nearby Clarksville,

Tennessee.” Pet. App. D5; Tr. 113-114, 132-134, 180.

Once there, the agent gave petitioner $20. Petitioner left

the car and returned with approximately .04 grams of

“crack” cocaine. During the return trip to Fort

Campbell, petitioner discussed how he could obtain

“crack” in the future and said that he knew that the

supply of crack in Washington, D.C. was “real plentiful.”

Tr. 60-61; see also Tr. 113, 115, 1388. Unbeknownst to

Nolte and the agent, petitioner cheated the agent by

keeping (and later smoking) some of the crack for

himself. Pet. App. D5.

After the September 24, 1989, purchase, the CID asked

Nolte to arrange another buy for the same agent. Nolte

4

explained to petitioner that the “student” was really a

soldier who was interested in buying drugs, and he

suggested to petitioner that they could “set up” the

agent together and “take him” for a lot of money by

arranging another “crack” purchase. Nolte lost touch

with petitioner for a few days, but he eventually met with

petitioner on October 5, 1994, when petitioner once again

agreed to procure drugs for the agent. The transaction

proceeded much as the first deal, except that petitioner

smoked some of the crack in the agent’s presence and he

solicited more drugs from the agent, asking the agent to

smoke with him. Petitioner was arrested upon his

return to Fort Campbell. Pet. App. D6; Tr. 64-70, 116-

118, 182.

2. At his court-martial, petitioner interposed the

defense of entrapment. Petitioner testified that he first

used cocaine in February 1989, and that he became

addicted. Tr. 170-173. He claimed that he refused Nolte’s

requests to buy drugs three times before agreeing to the

purchase on September 24, 1989. Tr. 174. Petitioner

claimed that before he agreed to that purchase, he

interpreted Nolte’s gestures and eye and facial move-

ments to mean that petitioner should “rip off” the agent

by keeping some of the “crack” for himself. Tr. 181-183.

Petitioner testified that he had “ripped off” people “a lot

of times before” in similar distributions in which he

participated with others. Tr. 184, 192.

The court-martial rejected petitioner’s entrapment

defense and convicted him of use of cocaine and two

specifications of distribution of cocaine in violation of

Article 112a of the Uniform Code of Military Justice

(UCMJ), 10 U.S.C. 912a. Petitioner was sentenced to

confinement for 20 years, total forfeiture of pay and

allowances, reduction to the lowest enlisted grade and a

dishonorable discharge. The convening authority

5

approved the finding and sentence.? The Army Court of

Military Review affirmed the findings and sentence,

except that it reduced petitioner’s confinement to ten

years. Pet. App. A2, D2. The Court of Military Appeals,

however, summarily vacated the judgment and remanded

the case to the Court of Military Review for further

consideration in light of United States v. Cooper, 33 M.J.

356 (C.M.A. 1991). Pet. App. B1, D2.

3. Upon reconsideration, the Army Court of Military

Review again affirmed petitioner’s convictions and his

sentence (as previously modified by the reduction of the

term of confinement to ten years). The court noted that

in Cooper, a registered informant told CID agents that

the defendant was a drug dealer, but did not tell the

agents that the defendant had enrolled in ADAPCP. The

informant in Cooper then overcame the defendant’s

reluctance to revert to drugs, and persuaded him to

procure drugs for an undercover agent. The Court of

Military Appeals affirmed the ensuing conviction.

The Army Court of Military Review noted that the

lead Cooper opinion, which was authored by Judge Cox,

emphasized that the CID agents did not knowingly

approach the defendant in violation of regulations

designed to protect the confidentiality of the ADAPCP

program, and that Judge Cox assumed that the knowing

targeting of a recovering addict would violate due

process. Pet. App. C6. The court also noted that, in a

concurring opinion, Chief Judge Sullivan stated that the

CID should be bound by the informant’s knowledge of the

2 The “convening authority” is the commander who convenes

the court-martial. The convening authority selects the court-

martial members (who are analogous to jurors), directs that the

accused be tried by the court-martial for the charged offenses, and

conducts a post-trial review of the proceedings.

6

defendant’s decision to seek treatment, but that the

regulations that protect ADAPCP patients do not apply

to offenses committed after a patient enters the program.

Id. at C2-C3, C5-C6. The Army Court of Military

Review then concluded that petitioner would lose under

either approach, because the CID did not seek him out

knowing him to be enrolled in the ADAPCP program,

and because petitioner had already engaged in drug

misconduct after entering the program. Moreover, the

court noted that the record contained no evidence of

official overreaching. “Nolte made only a single, simple,

and perfunetory request to [petitioner,] whose

compliance with the request was immediate and

unhesitating. * * * He was clearly readily complaisant

and we so find.” Jd. at C7.

4. The Court of Military Appeals affirmed petitioner’s

two convietions for distributing cocaine, but it reversed

his conviction for using cocaine. The court remanded for

reassessment of the sentence based on the remaining

findings of guilt. Pet. App. D1-D18.

a. Speaking for the court with respect to the

distribution counts,’ Judge Cox first rejeeted peti-

tioner’s claim of entrapment. Judge Cox noted that there

was no opportunity for Nolte to communicate any official

inducement to petitioner, since Nolte was with a CID

agent between the time he signed up as an informant and

the time he and the agent asked petitioner for erack,.

Moreover, the evidence showed that petitioner readily

agreed to sell the drugs immediate;y upon being asked,

Pet. App. D4-D5. Because “{njothing in the law of

entrapment forbids the Government from merely asking

% Chief Judge Sullivan and Judge Crawford joined Judge Cox’s

opinion insofar as it upheld the convictions on the distribution

counts. Pet. App. D2.

7

someone to sell drugs,” and because “(tjhe instant record

is replete with evidence of (petitioner’s] pre-existing

disposition and of the Government’s lack of overreaching

prior to the first transaction,” Judge Cox concluded that

| “(tjhe faetfinder was entirely within its province in

rejecting [petitioner's] entrapment claim.” Id. at D7-

4 D8 4

Judge Cox also rejected petitioner’s claim that his

prosecution violated statutory and regulatory provisions

designed to protect the integrity of drug rehabilitation

programs, First, Judge Cox noted that 42 U.S.C, 290ee-

3(a) and 290ee-3(¢), which mandate confidential treatment 7

for drug treatment records and prohibit the use of such

records in a criminal investigation or prosecution of a

patient, are expressly made inapplicable to “any

interchange of records ... within the Armed Forces,”

Pet. App. D9, and that, in any event, “there is not the

slightest indication in this record that any records of

any drug-abuse-prevention function were ever disclosed

to anybody.” Ibid. Second, Judge Cox rejected peti-

tioner’s reliance on numerous regulations promulgated

by the military and the Department of Health and

Human Services that restrict the use of undercover

officers or informants to investigate patients enrolled in

a drug rehabilitation program. After reviewing the

language of each regulation, Judge Cox concluded that

those regulations prohibit law enforcement infiltration

* Judge Cox also rejected petitioner’s claim that the

government’s conduct violated the Due Process Clause of the Fifth

Amendment, explaining that a due process claim “arises only in

the context of shocking police abuse of an aceused, In the instant

ease, the law enforcement agents merely asked (petitioner) if he

wanted to deal, and he did. There was thus no abuse or mistreat-

ment whatever.” Pet, App. at D7-D8 n4,

oe

8

of rehabilitation programs, and the use of information

collected by those programs for law enforcement

purposes, neither of which occurred in this case. Id. at

D9-D12.°

b. Speaking for the court with respect to petitioner’s

conviction for using cocaine, Chief Judge Sullivan

concluded that the government improperly induced

petitioner to use cocaine during the second sale to the

undercover agent, because Nolte had offered petitioner

cocaine to induce that sale and the CID agent allowed

petitioner to smoke the cocaine. In Chief Judge

Sullivan’s view, those actions amounted to “outrageous

government conduct” that violated petitioner’s due

process rights and precluded petitioner’s conviction for

using the cocaine. Pet. App. D13.

ce. Judge Gierke dissented. While he agreed with

Judge Cox’s treatment of petitioner’s entrapment claim,

he would have reversed petitioner’s conviction for

distributing drugs on October 5, 1989 (in addition to the

use conviction arising out of the events of the same date),

because he believed that Nolte’s conduct in offering

petitioner drugs to induce his participation in that sale

amounted to “outrageous government conduct” in vio-

lation of due process. Pet. App. D15-D18.

5 Judge Wiss concurred separately in the affirmance of the two

distribution convictions, but he disagreed with Judge Cox’s

reasoning. As to the first sale, Judge Wiss concluded that the

members of the court-martial necessarily “rejected [petitioner's]

contention that Nolte had used cocaine as the carrot to induce a

known cocaine addict to commit a crime that Nolte had no reason

on earth to think that the addict otherwise would com’ ” Pet.

App. D14. As to the second sale, Judge Wiss concluded. i “(bly

then * * * [petitioner’s] propensity to distribute already was

established by the first transaction, so an entrapment defense in

the usual sense was precluded.” Jd. at D15.

9

5. On remand, the Army Court of Military Review

reassessed the sentence based on the remaining findings

of guilt, and reduced petitioner’s confinement to nine

years. Pet. App. E2. The Court of Military Appeals

denied further review. Id. at F'1.

ARGUMENT

1. Petitioner first contends (Pet. 29-31) that under

the concept of predisposition articulated in Jacobson v.

United States, 112 S. Ct. 1535 (1992), and Sherman v.

United States, 356 U.S. 369 (1958), he was entrapped as a

matter of law. Petitioner is incorrect. Accordingly,

further review of petitioner’s factbound claim is not

warranted.

Jacobson involved a sting operation in which the

government repeatedly contacted the defendant over a

two-and-a-half year period through various fictitious

organizations and a bogus pen pal before the defendant

accepted an invitation to purchase child pornography

through the mail. Relying on the well-settled proposition

that “[gjovernment agents may not originate 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,” 112 S. Ct. at 1540 (citing Sorrells v. United

States, 287 U.S. 435, 442 (1932)), the Court concluded that

the defendant had been entrapped as a matter of law into

ordering the prohibited material. The Court reasoned

that the government’s prior contacts with the defendant

“not only excited [his] interest in sexually explicit

materials banned by law but also exerted substantial

pressure on [him] to obtain and read such material as

part of a fight against censorship and the infringement of

individual rights.” 112 S. Ct. at 1542. In those

circumstances, the Court held, “[rJational jurors could

— —_——— ball

10

not say beyond a reasonable doubt that [the defendant]

possessed the requisite predisposition [to commit the

offense charged] prior to the Government’s investigation

and that it existed independent of the Government’s

many and varied approaches to [him].” Jd. at 1543.

In Jacobson, however, the Court reaffirmed the

longstanding principle that a defendant is not entrapped

when government agents “merely afford opportunities or

facilities for the commission of the offense,” and that

“{ajrtifice and stratagem may be employed to catch those

engaged in criminal enterprises.” 112 S. Ct. at 1540.

The Court explained:

Thus, an agent deployed to stop the traffic in illegal

drugs may offer the opportunity to buy or sell drugs,

and, if the offer is accepted, make an arrest on the

spot or later. In such a typical case, or in a more

elaborate “sting” operation involving government-

sponsored fencing where the defendant is simply

provided with the opportunity to commit a crime, the

entrapment defense is of little use because the ready

commission of the criminal act amply demonstrates

the defendant’s predisposition. See United States v.

Sherman, 200 F.2d 880, 882 (CA2 1952).

Jacobson, 112 S. Ct. at 1541. After viewing the evidence

in the light most favorable to the government, as they

were required to do, see United States v. Collins, 957

F.2d 72, 77 (2d Cir.), cert. denied, 112 S. Ct. 2285 (1992);

United States v. Akinseye, 802 F.2d 740, 744 (4th Cir.

1986), cert. denied, 482 U.S. 916 (1987); United States v.

Ford, 918 F.2d 1343, 1348 (8th Cir. 1990), the courts below

correctly concluded (Pet. App. C7, D7-D8) that Nolte and

the undercover CID agent simply offered petitioner an

opportunity to participate in a criminal venture, for

which petitioner’s past comments and actions suggested

11

his ready amenability. Petitioner’s immediate accept-

ance of that opportunity demonstrates that he was an

“unwary criminal,” not an “unwary innocent,” see

Jacobson, 112 S. Ct. at 1537 (quoting Sherman v. United

States, 356 U.S. 369, 372 (1958)), and that he was

therefore not entrapped as a matter of law.®

2. Petitioner also contends (Pet. 32-37) that his

distribution convictions should be set aside, because the

Drug Abuse Prevention, Treatment, and Rehabilitation

Act, 21 U.S.C. 1101 et seg., and its implementing

regulations, forbade military investigators from sub-

jecting petitioner to an undercover investigation. Peti-

tioner offers no argument to rebut the Court of Military

Appeals’ careful textual analysis of the provisions on

which he relies, and he does not suggest that the lower

courts are in conflict on the proper interpretation of

those provisions. Nor does petitioner offer any

persuasive reason for his assumption that those

statutory and regulatory provisions authorize or

6 For similar reasons, petitioner’s reliance on Sherman v.

United States, 356 U.S. 369 (1958), is misplaced. Sherman, like

this case, involved a defendant who had at some point sought treat-

ment for narcotics addiction. In Sherman, however, “the

undisputed testimony of the prosecution’s witnesses” (id. at 373)

established that the defendant was first persuaded to abandon his

rehabilitation efforts by the informant, who was also enrolled in the

program while working for the law enforcement agents and who

falsely and repeatedly claimed that he needed the drugs “because

he was not responding to treatment.” /d. at 371. “Not until after

a number of repetitions of the request, predicated on [the

informant’s] presumed suffering, did [the defendant] finally

acquiesce.” Ibid. Thus, in Sherman, unlike this case, the

government’s own evidence established that “[o]ne request was not

enough, for * * * additional ones were necessary to overcome,

first, [the defendant’s] refusal, then his evasiveness, and then his

hesitancy in order to achieve capitulation.” Jd. at 373.

12

contemplate the dismissal of a criminal prosecution even

when they are actually violated. Cf. United States v.

Caceres, 440 U.S. 741, 749 (1979).

Petitioner simply asserts that ordinarily, and

especially in the entrapment c» stext, see Sherman v.

United States, supra, the actions and knowledge of

informants are imputed to the government. Pet. 34-35.

While that is true, it does not help petitioner. The

Court of Military Appeals imputed Nolte’s conduct and

knowledge (after Nolte became an informant) to the

government for purposes of adjudicating petitioner’s

claim of entrapment, but found that defense defeated by

the obvious alacrity with which petitioner reponded to

the inducement. Pet. App. D7-D8 & n.5. The court also

examined the informant’s conduct in adjudicating

petitioner’s distinct statutory and regulatory claims, but

concluded that neither the CID nor the informant

violated the cited provisions. The court explained that

the “‘information’ that [the informant] provided was

acquired prior to or wholly outside of any [drug-abuse]

program,” id. at D10, and petitioner’s participation in a

drug abuse program “had nothing to do with his

selection” as a target, because “the CID agents did not

at the time know [petitioner] was involved in the

program, and the source identified [petitioner] because

he was the only person the source knew who was

involved with cocaine,” id. at D11. That analysis did not

depend on whether the informant’s knowledge was

imputed to the government; rather, it depended on a

conclusion that the CID and the source’s conduct did not

infringe on the protection allowed to participants in a

13

drug rehabilitation program. Petitioner has offered

nothing to doubt the correctness of that analysis.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREw S. Days, III

Solicitor General

JOHN M. SMITH

Colonel, USA

LYLE D. JENTZER

Major, USA

MICHAEL E. MULLIGAN

Captain, USA

Appellate Government Counsel

Government Appellate Division

DECEMBER 1994

7 Petitioner also suggests in his concluding statement (Pet. 38-

39) that his convictions shouid be reversed “on due process

grounds,” because the government’s conduct was “shocking to the

universal sense of justice.” The questions presented by the peti-

tion, however, do not advert to or fairly include any due process

issue. See Pet. i. Accordingly, that issue is not properly before

this Court. See Sup. Ct. R. 14.1(a); Kaisha v. U.S. Philips Corp.,

114 S. Ct. 425, 427-428 (1993) (per curiam).