Opposition Brief — Zaia v. United States

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No. 94-1002 } FEBS 1995

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In the Supreme Court of the Anited States |

OCTOBER TERM, 1994

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NEERAN ZAIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREw S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

VICKI S. MARANI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner was entrapped as a matter of

law as a result of the undercover investigation that led to

her prosecution for bribery, visa fraud, and alien

smuggling.

2. Whether petitioner was a victim of outrageous

government conduct requiring dismissal of the

indictment under the Due Process Clause of the Fifth

Amendment.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Greene v. United States, 454 F.2d 783 (9th Cir. 1971) ...... 15

Hampton v. United States, 425 U.S. 484 (1976) .............. 16

Jacobson v. United States, 112 S. Ct. 1535 (1992) ......... 7, 10, 11

Mathews v. United States, 485 U.S. 58 (1988) ....ccccccccce. 8

United States v. Akinseye, 802 F.2d 740 (4th Cir. 1986),

cert. denied, 482 U.S. 916 (1987) .occccccceccecccccccceesccceeees 8

United States v. Beverly, 723 F.2d 11 (3d Cir. 1983) ........ 15

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

cert. denied, 114 S. Ct. 1544 (1994) oo... ccc cece cone 15

United States v. Duncan, 896 F.2d 271 (7th Cir. 1990) .... 13-14

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

United States v. Harris, 997 F.2d 812 (10th Cir. 1993) ... 16

United States v. Henderson-Durand, 985 F.2d 970 (8th

Cir.), cert. denied, 114 S. Ct. 164 (1998) oo...ecccccccccccceee. 13

United States v. Hollingsworth:

gE a 12

eG ES 11, 12, 13

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

IS ME Es PD CBO) cocsccccccevcnencccscsvececsscccececccccess 14

United States v. Martinez, 979 F.2d 1424 (10th Cir.

1992), cert. denied, 113 S. Ct. 1824 and 113 S. Ct. 3019 8

NS EE SESSA CE NOE TR

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

I OU i OD, a insidvhidevevsnuvasnncecacsvaccocve 14

lV

Cases—Continued: Page

United States v. Nunez-Rios, 622 F.2d 1093 (2d Cir.

PUT | vadecsusasdassh wedinnetdasccsendeusssaotiasecaaeaiLibarisnmmaiatiaels 14

United States v. Powell, 469 U.S. 57 (1984) 0... 9

United States v. Russell, 411 U.S. 423 (1973) .................. 14

United States v. Sandoval, 20 F.3d 134 (5th Cir. 1994) ... 13

United States v. Sherrod, 33 F.3d 723 (6th Cir. 1994), |

petition for cert. pending No. 94-7209 ...........cceeeeee eens 11

United States v. Solorio, 37 F.3d 454 (9th Cir. 1994) ....... 15, 16

United States v. Tucker, 28 F.2d 1420 (6th Cir. 1994),

petition for cert. pending, No. 94-6963 0.0.0.0... eee 14

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) ........ 15

Constitution, statutes and rules:

U.S. Const. Amend. V (Due Process Clause)................... 7,12

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Set Bea: MEE wind ve duitnee cerca conovonedetaabammanea buaenmnabraseone 2

Fed. R. Crim. P.::

BENE MITT © dnnicasddansucannossnnncas seidbhaweaateyamcnicnaammaaumaaies 13

I a a ae 13

In the Supreme Court of the Giuted States

OCTOBER TERM, 1994

No. 94-1002

NEERAN ZAIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION 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-36a) is

unpublished, but the judgment is noted at 35 F.3d 567

(Table).

JURISDICTION

The judgment of the court of appeals was entered on

September 2, 1994. The petition for a writ of certiorari

was filed on December 5, 1994, and is therefore out of

time under Rules 13.1 and 13.4 of the Rules of this Court.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Michigan, petitioner

was convicted on seven counts of visa fraud, in violation

of 18 U.S.C. 1546(a) (Counts 6-12); three counts of

bribery, in violation of 18 U.S.C. 201(b)(1) (Counts 17-19);

and one count of alien smuggling, in violation of 8 U.S.C.

1324(a)(1)(D) (Count 20).' She was sentenced to con-

current prison terms of 15 months, to be followed by two

years’ supervised release. The court of appeals affirmed.

Pet. App. la-36a.

1. In the wake of the Persian Gulf War, petitioner,

who operated a travel agency in Detroit, advertised on an

Arabic-language television station that she could assist

Catholic Iraqis (Chaldeans) who had fled to Jordan

emigrate to another country. Gov’t C.A. Br. 3-4.

Sixteen Chaldeans or their Detroit-area relatives hired

petitioner for that purpose in late 1991. Pet. App. 3a;

Gov’t C.A. Br. 5. Promising to obtain visas for Mexico or

Canada, petitioner charged fees ranging from $2,000 to

$5,000 per person, exclusive of travel and lodging

expenses. Pet. App. 3a; Gov’t C.A. Br. 5, 22-23. Instead

of securing the promised visas, however, petitioner gave

the Chaldeans “passports” issued by the “World Service

Authority” (WSA), a private group that espouses world

citizenship, and tourist visas for the Dominican

Republic, where the group stayed for about two months.

Pet. App. 3a-4a; Gov’t C.A. Br. 5-6, 22.

! Petitioner was acquitted on five other counts of visa fraud

(Counts 1-5) and four other counts of bribery (Counts 13-16).

1 C.A. Joint App. 538. A count charging conspiracy to commit an

offense against the United States, in violation of 18 U.S.C. 371

(Count 21), was dismissed on motion of the government. 1 C.A.

Joint App. 53.

—————

3

While in the Dominican Republic, petitioner tried to

obtain United States visas at the United States

Embassy by claiming that the group planned to travel

through the United States in order to vacation in

Acapulco, Mexico. An Embassy official denied the visas,

explaining that the United States does not recognize

WGA passports as valid. Pet. App. 4a; Gov’t C.A. Br. 6.

After unsuccessful attempts to have Nicaragua and

yuatemala accept the group, petitioner arranged for the

Chaldeans to fly to Belize (formerly British Honduras),

where they stayed at a hotel run by an American citizen,

Sue Williams. Petitioner told Williams that the group

was touring Belize and that she was their guide.

Petitioner then asked Williams if she knew anyone at the

United States Embassy who could help them get visas to

the United States. Petitioner added that she would be

bringing “lots of people through” and that if Williams

acquired the proper contact, they “both could make lots

of money.” Suspicious, Williams reported this con-

versation to Rudolph Boone, the United States Consul at

the American Embassy in Belize City. Boone was

already aware of the Iraqis’ presence, having received a

State Department cable to the effect that petitioner had

tried to bribe a Guatemalan official to furnish visas for

her group. Boone relayed Williams’ information to the

State Department. Pet. App. 4a-5a, 13a-15a & n.4; Gov't

C.A. Br. 6-7, 13-14, 17, 22-23.

On instructions from the State Department, Boone

arranged a meeting with petitioner on February 5, 1992,

at a restaurant owned by Williams. Pet. App. 5a. Boone

surreptitiously taped that and subsequent meetings with

petitioner. /bid; Gov’t C.A. Br. 8. Identifying himself as

“the counsel, the chief of the section,” Boone told

petitioner that he had heard she was with a group and

4

that “you might need some help and I was wondering

what that was.” Pet. App. 5la. Petitioner replied that

her group was Iraqi and had trouble getting visas. /d. at

5la-53a. Boone said, “if I can help you, let me know[.]”

Id. at 57a. Petitioner confirmed that she could use his

help and asked “what kind” he could give her. Jbid.

When Boone answered, “[wlell, you tell me,” petitioner

said that “every month” she had a “different group”

seeking to go to Canada, Mexico, or the United States.

Id. at 57a-58a. Boone hesitated (“Well, I don’t know about

that”), id. at 58a, but petitioner pressed him (“So what

are you going to do for them?”), id. at 59a. Boone asked,

“[w]hat’s in it for me?,” and petitioner countered, “I don’t

know what are you going to do for me.” Jd. at 60a. When

Boone agreed to obtain visas, petitioner thanked him,

adding, “This is business. We’re going to make money,

you know.” [bid.

Boone again hesitated about getting visas for

petitioner on a monthly basis, Pet. App. 63a, but peti-

tioner pointed out that, right then, she had “just a few

[people] left,” and she urged him to “do something just

between us,” 7d. at 64a. Petitioner added, “if you like to

work with me, we’re going to work together.” Jbid- She

then asked for Belize passports and agreed not to call

Boone at home. /d. at 66a-67a. When Boone asked her,

“How much is this worth to you?,” petitioner replied, “I

don’t know what you gonna do[.}” Jd. at 68a. Boone

promised to obtain visas for the United States, and

petitioner asked “[hjow long” it would take. /d. at 68a-

69a. After discussions about price, volume, and timing,

petitioner instructed Boone: “Okay, go ahead, start.” Jd.

at 72a. Boone agreed to issue two visas that day and the

rest later. Jd. at 73a, 79a. The meeting ended after

5

petitioner had Boone promise to meet her again at a

particular time and place. /d. at 80a-81a.

Over the next six days, petitioner met with Boone five

more times. Gov’t C.A. Br. 9. At each meeting, peti-

tioner gave Boone Iraqi passports, and he returned them

stamped with non-immigrant United States visas in

exchange for cash. /d. at 9, 13. All told, petitioner paid

Boone $3,750 for 12 visas. Pet. App. 3a, 6a-7a; Gov’t C.A.

Br. 9, 18.2. During their meeting on February 10th,

petitioner asked Boone for his address and telephone

number and told him, “I don’t want it to be too hard to

call you.” 2 C.A. Joint App. 524. At their February 11th

meeting, petitioner invited Boone to visit her home and

office in Detroit. Jd. at 552. She also gave him her home

telephone number and said that he should call her collect.

Id. at 557.

The 12 aliens for whom petitioner had secured

fraudulent visas traveled to the United States in two

groups: One group entered the country through New

Orleans with petitioner, while the other group entered

through Houston. When a Customs inspector in New

Orleans questioned petitioner about the visas, she denied

knowing anything about them. She claimed that the

group was planning to attend Mardi Gras, then return to

Jordan or Belize. In fact, the group did not attend Mardi

Gras, but went to Detroit. Pet. App. 7a; Gov’t C.A. Br.

10.

2 The two visas that Boone issued to petitioner on February 5th

were the subject of Counts 1 and 2 of the indictment; he issued

three visas to her on February 7th, which were the subject of

Counts 3, 4, and 5. Those five visa fraud counts were the ones on

which she was acquitted. She was also acquitted on the briberies

charged on February 5th (Count 13), February 6th (Counts 14 and

15), and February 10th (Count 16). See Pet. App. 6a.

6

At petitioner’s direction, the four aliens for whom she

was unable to obtain visas traveled from Belize to

Mexico, where they swam across the Rio Grande River

at night to Brownsville, Texas. There, they met up with

petitioner’s co-defendant, Hazim Saeegh, who had been

waiting for them. Pet. App. 3a, 7a; Gov’t C.A. Br. 10-11,

14, 23.

On February 20, 1992, Boone met petitioner in her

Detroit office, in accordance with her previous in-

vitation. The two and Saeegh discussed an expanded role

for Boone in their visa business, /.e., if Boone processed

about 30 Iraqis per month as well as some Chinese

immigrants, they would pay him $500 for each fraudulent

immigrant visa and $1,000-$2,000 for each passport. In

addition, with petitioner present, Saeegh asked for

Boone’s help in transferring to Belize an immigration

petition that was pending in Algeria. Boone agreed to

handle the matter for $500. The next day, in Boone’s

hotel room, Saeegh gave Boone the file on that case, and

petitioner handed Boone $500 in cash. Pet. App. 7a-Sa,

lSa; Gov't C.A. Br. 11, 13-14, 18. ;

2. Petitioner asserted an entrapment defense at trial

and moved for a judgment of acquittal on the ground that

she had been entrapped as a matter of law. Pet. App. 9a.

The district court denied the motion and submitted the

entrapment issue to the jury. /bid. Without objection,

the court gave the Sixth Circuit’s pattern instruction on

entrapment. /d. at 18a. See also Pet. C.A. Br. 44 (conced-

ing that defense counsel had “agreed to the instruction

given”). The jury found petitioner guilty as indicated

above.

Following the verdict, petitioner moved to dismiss the

indictment, on the ground that the manner in which the

government had investigated her was so outrageous as to

7

violate due process. 1 C.A. Joint App. 35, 47-50. The

district court assumed that a defense of outrageous

government misconduct exists under the Due Process

Clause, but it rejected petitioner’s claim, explaining that

it did not believe that the government’s conduct in this

case was in fact “outrageous.” 2 C.A. Joint App. 399.

3. The court of appeals affirmed. Pet. App. la-36a.

The court rejected petitioner’s claim that she had been

entrapped as a matter of law. Relying on Jacobson v.

United States, 112 S. Ct. 1535, 1541 (1992), for the pro-

position that a defendant’s “ready commission of [a]

criminal act” demonstrates predisposition, Pet. App. 12a,

the court found that, viewed in the light most favorable

to the government, the evidence “justifie[d] the inference

that [petitioner] was * * * predisposed to commit the

crimes for which she was convicted|,]” td. at 14a-15a.

The court also rejected petitioner’s claim that she was

the victim of outrageous government conduct. The court

reasoned that petitioner

was the one who first approached Williams about

making contact with an employee of the United

States embassy in Belize * * *, and that [petitioner]

on her own, without any government participation or

knowledge, sent four of her clients into Mexico

illegally, without, [sic] visas of any kind * * *. It

was also [petitioner] who selected which passports to

give to Boone * * *; and it was [petitioner] who

created the need for her illegal activities by bringing

her clients to Belize without any realistic chance of

obtaining legitimate visas for them.

Pet. App. 22a-23a. The court also acknowledged the

government’s argument that, in order to investigate

petitioner’s apparent interest in obtaining fraudulent

visas, “it had no choice but to present someone to be

8

bribed, namely Boone|.]” Accordingly, the court con-

cluded that petitioner had “show|n] enough initiative in

the conduct of the criminal activities at issue here to

prevent our finding that the government|’s] conduct in

this case was so outrageous as to shock the universal

sense of justice.” /d. at 23a (internal quotation marks

omitted).

ARGUMENT

1. Petitioner renews her contention that she was

entrapped as a matter of law. Pet. 31-52. That claim does

not merit review.

a. A valid entrapment defense has two related

elements: (1) government inducement of the crime, and

(2) a lack of predisposition on the part of the defendant to

engage in the criminal conduct. Mathews v. United

States, 485 U.S. 58, 63 (1988). “Predisposition, the

principal element in the defense of entrapment, * * *

focuses upon whether the defendant was an unwary

innocent or, instead, an unwary criminal who readily

availed himself of the opportunity to perpetrate the

crime.” Jbid. (citations and internal quotation marks

omitted). Petitioner claims that she had only a

“generalized desire” to protect refugees, and that, “but

for the creative intervention of Consul Rudolph Boone,”

she would not have committed any crimes. Pet. 49-50.

As petitioner recognizes (Pet. 32 n.4), in evaluating a

claim of entrapment as a matter of law, the evidence of

predisposition must be viewed in the light most favorable

to the government. See, e.g.,United States v. Martinez,

979 F.2d 1424, 1430 (10th Cir. 1992), cert. denied, 113 S.

Ct. 1824 and 113 S. Ct. 3019 (1993); United States v. Ford,

918 F.2d 1343, 1348 (8th Cir. 1990); United States v.

Akinseye, 802 F.2d 740, 744 (4th Cir. 1986), cert. denied,

482 U.S. 916 (1987). Viewed in that light, the evidence

9

does not support petitioner’s claim that she committed

the crimes at issue because of “irresistible inducement,”

Pet. 41, 50, by “an overly zealous” Boone, id. at 48.

Boone contacted petitioner only after she had promised

Sue Williams a chance to make “lots of money” if

Williams put her in touch with anyone in the United

States Embassy who could supply her with visas. When

petitioner and Boone met, she “showed no reluctance

whatsoever to break the law,” and she “very quickly

warmed to the idea” of bribing him for fraudulent visas.

Pet. App. 13a-l4a. Indeed, at their first meeting, the

discussion focused less on whether petitioner would pay

a bribe than on how large the bribe would be, how many

visas Boone could obtain, and how quickly. When Boone

at first provided only two visas, petitioner sought

additional meetings with him in order to obtain visas for

the rest of her group, and met with him five more times

in Belize for that purpose. Over the course of a week,

petitioner paid Boone a total of $3,750 in bribes in ex-

change for 12 fraudulent visas. See Pet. App. 3a, 6a-7a;

Gov't C.A. Br. 9, 18.’

Petitioner’s intent to promote her illegal immigration

business om a continuing basis, wth or without Boone’s

help, also showed her predisposition. At their first

meeting, petitioner informed Bocne that she would be

back for more visas every montana. Pet. App. 57a-58a.

When Boone expressed doubt that he could accommodate

her, id. at 58a, petitioner encouraged him by saying:

* That petitioner was acquitted on several counts of visa fraud

and bribery did not, of course, preclude consideration of the

conduct underlying those counts as evidence of predisposition. Cf.

United States v. Powell, 469 U.S. 57, 65 (1984) (jury may have

acquitted out of “mistake, compromise, or lenity,” even though

“convinced of guilt”).

10

“This is business. We’re going to make money, you

know,” id. at 60a. Later, petitioner arranged—without

the involvement of Boone or any other gevernment

agent—for four of her “clients” to enter the United

States illegally through Mexico. She also renewed

contact with Boone in Detroit, where she paid him $500

to act on an immigration petition and offered him

substantial money to process a steady stream of illegal

immigrants. Gov’t C.A. Br. 10-11. That evidence was

sufficient to support the jury’s conclusion that

petitioner was amply predisposed to engage in an illegal

immigration scheme.

b. Petitioner also argues (Pet. 31, 41-42, 50) that the

court of appeals misapplied Jacobson by overlooking its

requirement that the defendant’s disposition to commit

the criminal act be shown beyond a reasonable doubt to

have existed before and independently of the govern-

ment’s contacts with her, 112 S. Ct. at 1540 n.2, 1543.

While concluding that the defendant in that case was not

predisposed to commit the offense in question before

government agents persistently pressured him to break

the law, the Jacobson Court reaffirmed the longstanding

principle that a prosecution will not be defeated when

government agents “merely afford opportunities or

facilities for the commission of the offense,” and that

“{alrtifice 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

11

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.

112 S. Ct. at 1541. The court of appeals expressly relied

on that portion of the Jacobson decision, see Pet. App.

10a-lla, and correctly applied it to the instant case, see

id. at 13a-16a.

As the court of appeals observed, the evidence showed

that, “regardless of who first suggested that the visas

could be obtained for money,” Pet. App. 13a, petitioner

readily and willingly availed herself of the opportunity to

bribe Boone. That action, coupled with her prior efforts

to locate an embassy official to bribe, confirmed that

petitioner was not “an otherwise law-abiding citizen

who, if left to h[er] own devices, likely would have never

run afoul of the law[.]” Jacobson, 112 S. Ct. at 1543.

Contrary to petitioner’s contention (Pet. 32-33), the

conclusion reached by the court of appeals in this case

does not conflict with United States v. Hollingsworth, 27

F.3d 1196 (7th Cir. 1994) (en bane). In Hollingsworth the

majority stated that Jacobson had changed the law of en-

trapment, because the government must now prove that

the defendant was “ready and willing” to commit the

crime not only in the traditional sense of having been

4 We note that petitioner does not challenge the district court's

entrapment instruction in this Court. That instruction repeatedly

cautioned that a guilty verdict may not be returned if “the

government persuaded a defendant who was not already willing to

commit a crime to go ahead and commit it.” The Sixth Circuit

correctly regards that language as “consistent with Jacobson,”

United States v. Sherrod, 33 F.3d 723, 725-726 (1994), petition for

cert. pending, No. 94-7209, and petitioner does not argue

otherwise.

12

amenable to doing so, but also in the sense of having been

“so situated by reason of previous training or experience

or occupation or acquaintances that it is likely that if

the government had not induced him to commit the crime

some criminal would have done so.” /d. at 1200. The

court of appeals in this case stated that its precedents

were “more in line” with Judge Ripple’s panel dissent in

Hollingsworth, which the five dissenting judges en-

dorsed when the case was reheard en bane. Pet. App. 12a

(citing United States v. Hollingsworth, 9 F.3d 593, 603-

604 (7th Cir. 1993) (Ripple, J., dissenting)). That state-

ment, however, does not indicate a conflict that warrants

resolution in this case, because petitioner’s conviction

would be affirmed even under the analysis of the

Hollingsworth majority. |

Petitioner’s conduct made her, under Hollingsworth,

the sort of “traditional [sting] target” for whom “all that

must be shown to establish predisposition and thus

defeat the defense of entrapment is willingness to violate

the law without extraordinary inducements; ability [to

violate the law] can be presumed.” See 27 F.3d at 1200.

Petitioner was the moving force in seeking to obtain

visas through a fraudulent scheme, as demonstrated by

her prior attempt to bribe the Guatemalan authorities,

her offer of “lots of money” to Williams in exchange for

an embassy contact, her promise to Boone that the scam

would be a continuing money-making operation, and her

subsequent smuggling of four illegal aliens into the

United States through Mexico without any help from

Boone or any other involvement by the government.’

5 Petitioner faults the court of appeals for mentioning her

attempted bribery of a Guatemalan official, claiming that the

government improperly elicited testimony about it from Boone “on

redirect examination.” Pet. 42 n.15. In fact, Boone referred to it

13

Petitioner clearly was “in a position without the govern-

ment’s help to become involved in illegal activity” of the

very type of which she was convicted. United States v.

Hollingsworth, 27 F.3d at 1200.

Nor is this case “strikingly similar” (Pet. 39) to

United States v. Sandoval, 20 F.3d 134 (5th Cir. 1994).

The defendant in Sandoval initially explored lawful

means to resolve his tax liability, and reluctantly agreed

to pay a bribe only after a government agent, playing

upon the defendant’s financial weakness, “doggedly

steered [him] away from a legitimate reward for informa-

tion,” id. at 1388, and toward a benefit for herself. Here,

by contrast, the agent, Boone, did not approach petitioner

until she had already tried to involve Williams in her

illegal immigration scheme. Petitioner then “showed no

reluctance whatsoever to break the law,” Pet. App. 13a,

when offered the opportunity. She also continued to

break the law both with and without Boone. Those facts

bear scant resemblance to Sandoval.

2. Petitioner also claims (Pet. 52-55) that the

indictment should have been dismissed under the Due

Process Clause of the Fifth Amendment, because Boone

engaged in outrageous misconduct.°

on cross-examination, in response to defense counsel’s criticism of

him for not telling petitioner directly of his concerns about her

group’s presence in Belize. 12/7/92 Tr. 170. After eliciting that

testimony, defense counsel moved for a mistrial. The district

court correctly denied that motion, noting that Boone had not

“blurted out [something] that had no relationship to anything asked

of him.” Jd. at 177.

® A claim of outrageous government misconduct raises a purely

legal defect in the institution of the prosecution, which is waived

unless raised prior to trial under Fed. R. Crim. P. 12(b)(1) and

(b)(2). See, e.g., United States v. Henderson-Durand, 985 F.2d

970, 973 & n.5 (8th Cir.), cert. denied, 114 S. Ct. 164 (1993); United

14

This Court has never held that the government’s mere

use of undercover agents, or the use of deception by

them, gives rise to a due process defense, although in

United States v. Russell, 411 U.S. 423, 431-432 (19783), it

left open the possibility that conduct of law enforcement

officials may be “so outrageous that due process

principles would absolutely bar the government from

invoking judicial process to obtain a conviction.” The

courts of appeals have expressed different views on

whether any outrageous government conduct defense

exists, compare United States v. Tucker, 28 F.3d 1420,

1428 (6th Cir. 1994) (no defense exists as to predisposed

defendant), petition for cert. pending, No. 94-6963, with

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

Cir.) (opinion of R.B. Ginsburg, J., for the court) (sug-

gesting 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), but no court of appeals has held that a

predisposed defendant may establish a violation of due

process merely because she purportedly was induced to

commit the crime by an undercover agent. Indeed, while

the court of appeals noted that it does not recognize a due

process defense, Pet. App. 23a-24a n.6 (citing Tucker,

supra), it concluded that in any event petitioner “showed

enough initiative in the conduct of the criminal activities

at issue here to prevent [a] finding that the government

conduct * * * was so outrageous as to ‘shock the

universal sense of justice.’” Pet. App. 23a. The district

court expressed the same view. 2C.A. Joint App. 399.

v. Nunez-Rios, 622 F.2d 1093, 1099 (2d Cir. 1980). Because

petitioner first made her claim of “outrageousness” in a post-

verdict motion, she waived that claim.

15

None of the court of appeals decisions on which

petitioner relies (Pet. 53-54) assist her due process

claim. 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 (1993),

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 (8d Cir. 1983).

Moreover, even were Twigg still authoritative, it is

distinguishable. Unlike the government agents in

Twigg, Boone merely presented petitioner with an

opportunity to do what she intended to do both before and

after meeting him: get Chaldeans into the United States

by any means necessary, legal or illegal.

Nor is petitioner aided by United States v. Solorio, 37

F.3d 454 (9th Cir. 1994). That case turned on the panel’s

perception (which we have 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 convicted”). The

panel deemed such a contingency fee outrageous because

it provides “too great an incentive for informants to

fabricate evidence and to maximize the amount of drugs

16

involved.” Jd. at 458. Plainly, Solorio is factually in-

apposite to the instant case.’

Finally, petitioner relies on United States v. Harris,

997 F.2d 812 (1993), which she characterizes as “an

entrapment case” in which the Tenth Circuit “stated in

dicta that an alternative ground for reversing the

conviction was that the government’s conduct ap-

proached being sufficiently outrageous to sustain a due

process defense.” Pet. 54 n.19. In Harris, the district

court had dismissed two drug counts on grounds of

outrageous government conduct. On the government’s

appeal, the Tenth Circuit “concluded [that] the govern-

ment did not create the crimes for which Defendant is

_charged” and that the undercover agent’s payment of the

defendant in cocaine for his role as a middleman in the

drug transaction was not “so coercive that [his] due

process rights were impinged.” 997 F.2d at 818. The

court found the record unclear, however, on the question

whether the agent knew that the defendant was an addict

and nevertheless “relifed] on that addiction to conduct

multiple transactions” lacking “a specific investigatory

purpose.” Jd. at 818-819. The court remanded for a

determination of that factual issue. /d. at 819. Peti-

tioner is no: akin to the addict in Harris.

? Petitioner also cites (Pet. 54) the Ninth Circuit’s decision in

Greene v. Urited States, 454 F.2d 783 (1971), where the court

found that, over at least a 2 1/2-year period, the government. had

created and maintained bootlegging operations, for which it served

as the only customer. That conduct cannot be compared to the

discrete episcde in this case. In addition, Greene was one of the

authorities necessarily rejected by this Court’s ruling in Hampton

v. United States, 425 U.S. 484 (1976). See id. at 498 (Brennan, J.,

dissenting).

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

VICKI S. MARANI

Attorney

FEBRUARY 1995