Opposition Brief — Tucker v. United States

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Nos. 94-977 and 94-6963 MAR 10 1999,

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OCTOBER TERM, 1994

3RENDA TUCKER, PETITIONER

Uv.

UNITED STATES OF AMERICA

3ARBARA MCDONALD, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREWS. DAYS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217 f

BESTAVAILABLE COPY "ili

QUESTION PRESENTED

Whether petitioners were entitled to dismissal of the

indictment on the theory that a government agent’s in-

ducement of their crime constituted outrageous govern-

ment conduct.

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Hampton v. United States, 425 U.S. 484 (1976) .............. 5,9

Jacobson v. United States, 112 S. Ct. 1535 (1992) ............ ~

Rochin v. California, 342 U.S. 165 (1952) oo... eeeeeeeeeeee. 8

Sherman v. United States, 356 U.S. 369 (1958) ............... 8

Sorrells v. United States, 287 U.S. 435 (1982) ..........00000.. ~

United States v. Barger, 931 F.2d 359 (6th Cir. 1991) ..... ¥

United States v. Beverly, 723 F.2d 11 (3d Cir. 1983) ........ 10

United States v. DeRewal, 10 F.3d 100 (3d Cir. 1993),

cert. denied, 114 S. Ct. 1544 (1994) oo... ee eeeeeees 10

United States v. Kelly, 707 F.2d 1460 (D.C. Cir.), cert.

rin. ccsesaveseseradvercessoess 10

United States v. Lard, 734 F.2d 1290 (8th Cir. 1984) ...... 11

United States v. Myers, 692 F.2d 823 (2d Cir. 1982),

cert. denied, 461 U.S. 961 (1983) .................cccccccccsccosseee 10

United States v. Payner, 447 U.S. 727 (1980) ........cceeee 5, 6, 9

United States v. Russell, 411 U.S. 423 (1978) .........00..000. 5, 8

United States v. Solorio, 37 F.3d 454 (1994), withdrawn,

Be Ne UN Ge BOD orc ccccderecececcesencteccocsccescececeves 11

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) ........ 6, 10

Wisniewski v. United States, 353 U.S. 901 (1957) ............ 12

Constitution and statute:

U.S. Const. Amend. V (Due Process Clause) .............0..00 6, 7

Is ctmsuunwenunon 2

§n the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-977

BRENDA TUCKER, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 94-6963

BARBARA MCDONALD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-28a)' is

reported at 28 F.3d 1420.

' Unless otherwise noted, “Pet. App.” refers to the appendix to

the petition in No. 94-977.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

July 15, 1994. A petition for rehearing was denied on

August 26, 1994. Pet. App. 1b-2b. The petition for a writ

of certiorari in No. 94-6963 was filed on November 21,

1994. The petition for a writ of certiorari in No. 94-977

was filed on November 23, 1994. The jurisdiction of this

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

STATEMENT

In a five-count indictment returned in the United

States District Court for the Western District of

Tennessee, petitioners were charged with purchasing,

and aiding and abetting the purchase of, food stamps, in

violation of 7 U.S.C. 2024(b)(1).2 Petitioners moved to

dismiss the indictment, claiming that the government’s

conduct in inducing them to commit their crimes

violated due process. The district court, accepting the

recommendation of a magistrate judge, granted the

motion. The government appealed, and the court of

appeals reversed and remanded for trial. Pet. App. la-

23a. '

1. Petitioners’ indictment arose out of a “reverse

sting” operation, in which an agent of the Department of

Agriculture, Clifford White, retained Linda Hancock to

offer to sell food stamps below face value. Agent White

furnished Hancock food stamps and instructed her to sell

them. Hancock was reimbursed for her mileage costs

and was paid by being permitted to keep half the money

collected from her sales of food stamps. Hancock was

2 Both petitioners were charged in Count One of the

indictment. Counts Two, Three, and Four charged petitioner

McDonald only, and Count Five charged petitioner Tucker alone.

C.A. App. 17-21.

3

told to find people who were willing to buy food stamps

below face value and to record her conversations with

them. She was not told whom to approach, but she was

instructed not to compel anyone to buy food stamps. Pet.

App. 2a, 2c-3ce.

Petitioner Tucker owned and operated a beauty salon

in Memphis, and petitioner McDonald was her employee.

Tucker and Linda Hancock were personal friends. Pet.

App. 3c. In November 1990, Hancock contacted Tucker at

the beauty salon and told her that she was in such dire

financial need that her children would not have a proper

Christmas. Hancock came to the beauty salon dressed in

a manner that suggested she was in financial distress.°

Hancock offered to sell Tucker food stamps at half their

face value, and Tucker agreed. Tucker purchased food

stamps from Hancock on two separate occasions; she also

put Hancock in touch with McDonald and other salon

employees and customers. /d. at 3c-4c; C.A. App. 128-129.

Hancock told McDonald that Hancock had been sick and

that she had to sell some food stamps in order to provide

for her children’s Christmas. Pet. App. 4c; C.A. App. 141.

McDonald also purchased food stamps from Hancock.

Pet. App. 4c.*

3 As the court of appeals noted (Pet. App. 4a n.1), the

government vigorously disputed several of the magistrate judge’s

findings, described in the text, regarding practices employed by

Hancock to ferret out persons willing to buy food stamps. For

example, Hancock denied that she dressed in a manner suggesting

she was in financial need and said she did not represent to

petitioner Tucker that she was having financial difficulties. Jd. at

3c-4c. The magistrate judge resolved the factual disputes based on

credibility judgments, and the court of appeals found no clear

error in those findings. Jd. at 4a n.1.

4 Hancock said she approached Tucker because she knew that

Tucker had previously been convicted for shoplifting and thought

4

2. The magistrate judge recommended that the

indictment be dismissed for outrageous government

conduct. He noted that petitioners would not likely

succeed with an entrapment defense because of their

willingness to participate in the food stamps sales, but he

thought the case was “one that should be dismissed

without regard to [petitioners’] abiijity to mount an

entrapment defense,” because the government’s conduct

went so “far beyond the bounds of propriety” as to

constitute a violation of due process. Pet. App. 7c-8c.

The district court accepted the magistrate judge’s

recommendation and dismissed the indictment. The

court agreed that the facts made it doubtful that either

defendant would be able to present a credible entrapment

defense, but it concluded, as had the magistrate, that the

totality of the facts in this case crossed the boundary of

due process. Pet. App. le-4e. The court. remarked (id. at

3e):

I don’t think we are at a point in our criminal history

where the government needs to lower itself into

targeting sympathetic ploys on citizens that are not

otherwise suspected of engaging in criminal conduct

* * *

3. On the government’s appeal, the court of appeals

reversed and remanded for trial. The court of appeals

concluded that, as a matter of law, a defendant could not

claim a violation of due process based solely on the

that she had also been involved in stolen credit cards and fur coats;

the magistrate, however, noted that the shoplifting conviction

occurred 16 years before and that Tucker’s denial of any

involvement in stolen credit cards or merchandise was credible.

There was no evidence that either Tucker or McDonald had ever

previously been involved in food stamps sales. Pet. App. 5c-6c;

C.A. App. 97-102.

5

theory that his criminal behavior was induced by the

government and that the government’s conduct was

objectively outrageous. Rather, when a defendant

attacks the manner in which the government induced

him to commit a crime, he is “limited to the defense of

entrapment and its key element of predisposition.” Pet.

App. 20a-21a.

The court of appeals began by noting that this Court

had never accepted the so-called “objective” entrapment

defense, which would focus solely on the government’s

conduct and would not consider whether the defendant

was subjectively predisposed tu commit the offense.

Although this Court stated in United States v. Russell,

411 U.S. 423, 431-432 (1973), that outrageous government

conduct might be a bar to prosecution in a sufficiently

extreme and shocking case, the court noted that that

suggestion was made in dicta. The court of appeals

further observed that the plurality in Hampton v.

United States, 425 U.S. 484 (1976), had repudiated any

defense based on outrageous conduct, and while Justice

Powell’s concurring opinion in Hampton continued to

leave open the possibility of such a defense, his opinion

for the Court in United States v. Payner, 447 U.S. 727

(1980), appeared to abandon that possibility. Pet. App. 7a-

9a & n.3.

The court of appeals then stated that many of its prior

cases had assumed the existence of a due process defense

based on outrageous government conduct. None of those

cases, however, had reversed a conviction based on that

defense. Similarly, the court of appeals noted, other

courts of appeals had often cited Russell for the pos-

sibility that a prosecution could be barred based on

outrageous conduct, but had rejected the defense on the

facts of each case. The court of appeals found only one

case in which a court had actually barred a prosecution

6

on that basis, United States v. Twigg, 588 F.2d 373 (8d

Cir. 1978), but it observed that Twigg had been disavowed

by the court that had decided it. Pet. App. 1la-12a.

Finding no authority requiring it to recognize the due

process defense of outrageous government conduct, the

court of appeals articulated three reasons for concluding

that such a defense should not be recognized. First, the

court reasoned, government conduct that induces a

defendant to commit a crime, even if considered “out-

rageous,” does not violate a defendant’s due process

rights, because the basis for the defense of entrapment

has been held to lie in congressional intent, not in the

Due Process Clause. The court explained that if

Congress could eliminate the entrapment defense even

for defendants who were not predisposed to commit a

crime, the Constitution does not require an outrageous-

conduct defense for defendants who were predisposed to

commit a crime. Pet. App. 16a-17a.

Second, the court of appeals found no authority to

dismiss an indictment in the absence of any specific

violation of a defendant’s due process rights. The court

noted that this Court’s decision in United States v.

Payner, 447 U.S. 727, 737 n.9 (1980), had rejected a

similar attempt to dismiss an indictment based solely on

an “ ‘objective’ assessment of the government’s conduct.”

Pet. App. 17a-18a.

Finally, the court of appeals stated that recognition of

an outrageous conduct defense would violate separation

of powers principles. The court noted that the Executive

Branch is principally responsible for regulating the

conduct of investigations, and that, through the en-

trapment defense, Congress “has implicitly curbed the

Executive Branch” from engaging in conduct. that

induces a defendant to commit a crime that he is not

predisposed to commit. Pet. App. 19a. The court of

7

appeals concluded that the Judiciary should not inject

itself further into the role of reviewing police practices

by invoking the Due Process Clause. Rather, the jury,

acting as factfinder in cases of alleged entrapment,

“operates as the ultimate check on abuses of executive

power.” Id. at 18a-20a.

The court of appeals therefore held that “a defendant

whose defense sounds in inducement is, by congressional

intent and Supreme Court precedent, limited to the

defense of entrapment and its key element of pre-

disposition.” Pet. App. 20a. The limitations on that

defense, the court determined, cannot be circumvented

by an outrageous conduct defense under the Due Process

Clause.’ Ibid.

Judge Martin concurred in the result. In his view, the

court was bound by prior Sixth Circuit precedent to

recognize the existence of an outrageous government

conduct defense. He concurred, however, because he did

not believe that the government’s conduct in this case,

measured by the factors set forth in United States v.

Barger, 931 F.2d 359, 363-364 (6th Cir. 1991), was out-

rageous. Pet. App. 21la-23a.

ARGUMENT

Petitioners contend (94-977 Pet. 11-29; 94-6963 Pet. 12-

26) that the court of appeals erred in rejecting an

outrageous government conduct defense based on the

conduct of government agents in inducing the defendant

to commit a crime. They argue that the decision below

conflicts with decisions from the Third and Ninth

Circuits in which those courts dismissed indictments for

outrageous government conduct, and with the analysis of

5 The court remanded for a trial, at which the issue of

entrapment would be determined by the jury. Pet. App. 21a.

8

cases in other circuits. Petitioners’ claim does not

merit this Court’s review. Although the courts of

appeals have expressed different views on whether any

outrageous government conduct defense exists, the facts

of this case would not fall within the extremely narrow

category of cases in which the courts have said such a

defense might be appropriate.

1. This Court has never held that the government’s

employment of undercover agents, or the use of deception

by them, gives rise to a due process defense. While the

Court has permitted defendants to raise an entrapment

defense, under which a defendant who lacks the predis-

position to engage in criminal conduct may avoid

conviction when the government has induced him to

commit the crime, see Jacobson v. United States, 112 S.

Ct. 1535, 1540 (1992), the Court has repeatedly tied that

defense to the defendant’s lack of subjective pre-

disposition to violate the law. The Court has rejected

the so-called “objective” theory of that defense, which

would focus only on the government’s conduct. United

States v. Russell, 411 U.S. 423, 483-434 (1973); Sherman

v. United States, 356 U.S. 369, 376-377 (1958); Sorrells v.

United States, 287 U.S. 435, 451 (1932). As the Court put

it in Russell, “the defense of entrapment enunciated in

[Sorrells and Sherman] was not intended to give the

federal judiciary a ‘chancellor’s foot’ veto over law

enforcement practices of which it did not approve.” 411

U.S. at 435.

In Russell, the Court left open the possibility that

conduct of law enforcement officials may be “so out-

rageous that due process principles would absolutely bar

the government from invoking judicial process to obtain

a conviction.” Russell, 411 U.S. at 431-432. The Russell

Court’s citation (id. at 432) to the “stomach pumping”

case, Rochin v. California, 342 U.S. 165 (1952), however,

9

implied a due process concern with conduct involving

police violence or brutality. The Court’s subsequent

decisions indicate that, if any outrageous government

conduct defense exists as to investigatory tactics, it is

exceedingly narrow in scope. See Hampton v. United

States, 425 U.S. 484 (1976); United States v. Payner, 447

U.S. 727, 737 n.9 (1980).

Indeed, in Hampton, the plurality would have rejected

any due process defense when a defendant is predisposed

to engage in the crime. 425 U.S. at 488-491 (plurality

opinion). Justice Powell, joined by Justice Blackmun,

concurred in the judgment and did not wish to foreclose

all possibility of a due process defense, but underscored.

that “the cases, if any, in which proof of predisposition is

not dispositive will be rare,” and that claims of

“outrageousness” would be particularly unlikely to

succeed when the challenged police practice involves the

use of undercover agents to combat contraband offenses.

Id. at 495-496 & n.7. And in Payner, the Court cast

further doubt on a due process defense based on pur-

portedly outrageous conduct. 447 U.S. at 737 n.9. In

light of the reasoning of those cases, there is significant

support for the court of appeals’ conclusion that a

defense of outrageous conduct cannot be predicated

solely on the way in which a defendant was induced to

commit a crime in an undercover investigation.

2. Petitioners contend that the court of appeals’

rejection of an outrageous conduct defense conflicts with

the decisions of other courts of appeals. 94-977 Pet. 13-

22; 94-6963 Pet. 17-21. It is true that the court in this

case went further than other courts of appeals in

precluding an outrageous government conduct defense

that relies solely on an objective attack on the

government’s inducement of a crime. But the court’s

holding, on the facts of this case, is consistent with the

10

results reached by other courts of appeals. Although

other courts have recognized an outrageous conduct

defense in theory, no court of appeals has held that a

predisposed defendant may establish a violation of due

process merely because he was induced to commit the

crime by an undercover agent. Rather, courts have

generally reserved an outrageous conduct defense for

cases involving far more egregious conduct. See United

States v. Kelly, 707 F.2d 1460, 1461, 1476 (D.C. Cir.)

(opinion of R.B. Ginsburg, J., for the court) (suggesting

that coercion, violence, or brutality is required), cert.

denied, 464 U.S. 908 (1983); United States v. Myers, 692

F.2d 823, 836-843 (2d Cir. 1982) (same), cert. denied, 461

U.S. 961 (1983). And, contrary to petitioners’ contention,

the decision below does not conflict with the result

reached by any other court of appeals.

In United States v. Twigg, 588 F.2d 373 (1978), a divided

panel of the Third Circuit reversed convictions where

government agents had supplied the defendants—who

had previously been “lawfully and peacefully minding

[their] own affairs,” id. at 381; see also id. at 382—with

the chemicals, laboratory, and expertise necessary for

them to manufacture methamphetamine. As the Third

Circuit recently noted, however, it has never applied

Twigg since that case was decided, see United States v.

DeRewal, 10 F.3d 100, 105 n. 3 (1998), cert. denied, 114 S.

Ct. 1544 (1994), and that court also has suggested that

Twigg was wrongly decided. See United States v.

Beverly, 723 F.2d 11, 12 (1983). Moreover, even were

Twigg still authoritative, it is distinguishable. Unlike

the government agents in Twigg, Hancock merely

presented petitioners with an opportunity to buy food

stamps and allegedly used deceptive tactics in her offer

of sales; petitioners showed a ready willingness to make

the illegal purchases, and there was no need for Hancock

11

to provide extraordinary means for committing the

crimes.°

Nor are petitioners aided by United States v. Solorio,

37 F.3d 454 (1994), withdrawn, 43 F.3d 1334 (9th Cir. 1995)

(see Pet. App. 1f-25f). That case turned on the panel’s

perception (which the government has disputed in a

rehearing petition that remains pending) that a drug

informant “was paid a fee contingent on conviction.” 37

F.3d at 458; see also id. at 459, 460 (reemphasizing that

payments were contingent on “getting people con-

victed”). The panel deemed such a contingency fee out-

rageous because it provides “too great an incentive for

informants to fabricate evidence and to maximize the

amount of drugs involved.” Jd. at 458. In this case,

however, Hancock, the undercover agent, was paid by

being permitted to keep half the proceeds of her food

stamps sales. There was no evidence that her payments

were contingent on obtaining convictions, and peti-

tioners’ claim was not predicated on the theory that the

payment arrangements rendered the agent’s testimony

unreliable. In any event, the panel that decided Solorio

has ordered the publication of its opinion withheld

pending further order of the court, and the government’s

petition for rehearing, and suggestion for rehearing en

6 Petitioner Tucker also puts some reliance (94-977 Pet. 24-25)

on United States v. Lard, 734 F.2d 1290 (8th Cir. 1984), but in that

case the court of appeals reversed on traditional entrapment

grounds, finding that the facts failed to show that the defendant

was predisposed to commit the crime. The court went on to

remark that the conduct of government agents in that case

“approached” the kind of outrageous government conduct that

had led the court in Twigg to reverse on due process grounds. /d.

at 1296-1297. The court’s due process comments were unnecessary

to its decision, since it had already found entrapment as a matter

of law.

12

banc, remains pending. Thus, the decision in Solorio

may yet be modified or reconsidered by the court of

appeals en banc.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREw S. DAys, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

MARCH 1995

7 Petitioner McDonald also complains (94-6963 Pet. 27-31) that

the court of appeals erred in holding that it was not bound by its

prior cases assuming the existence of an outrageous government

conduct defense on the ground that the comments in each of those

cases were dicta. Pet. App. lla. That contention does not merit

review by this Court. Whatever conflict may exist among Sixth

Circuit precedents is a matter for resolution by the court of

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