Opposition Brief — Manarite v. United States

No. 94-1641

Tae

In the Supreme Court of the Unter States

OCTOBER TERM, 1994

JEANNE MANARITE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

DAVID S. KRIS

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

CLERK

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support

petitioner’s conviction for money laundering under 18

U.S.C. 1956(a)(8)(A) and (B).

2. Whether petitioner was entitled to a jury

instruction on the defense of derivative entrapment.

3. Whether the evidence was sufficient to support

petitioner’s conviction for receiving stolen property,

in violation of 18 U.S.C. 2315.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Berkemer v. McCarty, 468 U.S. 420 (1984) ooo...ccceccceeeeeeeee 14

Brown v. United States, cert. denied, 115 S. Ct. 1404

I aN a ial da aa cial onda biidaciinsiwanaieiebensnne 7

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

Johnson v. United States, 317 F.2d 127 (D.C. Cir. 1963) 13, 14

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

Sorrells v. United States, 287 U.S. 435 (1932) ........0cccc00. 10

United States v. Alvarez-Sanchez, 114 S. Ct. 1599

I la i aac cd dla an sian nisweninns 14

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

United States v. Bradley, 820 F.2d 3 (1st Cir. 1987) ........ 11, 13

United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978),

cert. denied, 440 U.S. 966 (1979) .............ccccceecccecccceceecee 11

United States v. Dove, 629 F.2d 325 (4th Cir. 1980) ......... 11, 15

United States v. Emmert, 829 F.2d 805 (9th Cir. 1987) ... 13

United States v. Garcia, 546 F.2d 613 (5th Cir.), cert.

sins anvevurtacuanunonnes 13

United States v. Gendron, 18 F.3d 955 (1st Cir.), cert.

I, I Ra NE SU oa srcrceineniecwiiticsnserimnnenuiennees 10

United States v. Heaps, 39 F.3d 479 (4th Cir. 1994) ........ 8,9

United States v. Hollingsworth, 27 F.3d 1196

I inci tetiotetisaachawaisdseodkedscinuswniesatsecne 10, 11, 12, 13, 15

United States v. Jackson, 935 F.2d 832 (7th Cir. 1991) ... 7,8

United States v. Leroux, 738 F.2d 943 (8th Cir. 1984) ..... 11

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

1992), cert. denied, 113 S. Ct. 1824, 3019 (1998) ............. 10, 11

(III)

IV

Cases—Continued: Page

United States v. Mayo, 498 F.2d 713 (D.C. Cir. 1974) ..... 14

United States v. McLernon, 746 F.2d 1098

FORE Ml RUNNED . kcdvicisecensdicensanienithaiedansnsanionteedtececabienels 11, 13

United States v. Mers, 701 F.2d 1321 (11th Cir.), cert.

OE. GEG Thee. Hk CN Rac aceteetihtincpatacsteenoreniies 11, 13

United States v. Paramo, 998 F.2d 1212 (3d Cir. 1993),

cert. denied, 114 S. Ct. 1076 (1904) ...........ccccscsccseceseseses 7,8

United States v. Piervinanzi, 23 F.3d 670 (2d Cir.), cert.

denied, 115 S. Ct. 259, SEZ (IGBS) .....cecceocccccsccesccccsonsscees 8

United States v. Pilarinos, 864 F.2d 253 (2d Cir.

ORR AEC HE Am Some Meer 10, 12, 13, 15

United States v. Robins, 978 F.2d 881 (5th Cir. 1992) ..... 10, 13

United States v. Russell, 411 U.S. 423 (1978) .................. 10

United States v. Sarmiento, 786 F.2d 665 (5th Cir. 1986) 11, 13

United States v. Stewart, 770 F.2d 825 (9th Cir. 1985),

cert. denied, 474 US. 1108 (1GG6) .nccccccccccussscesscesascvencons 11

United States v. Toner, 728 F.2d 115 (2d Cir. 1984) ........ 12, 15

United States v. Valencia:

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SR UR Eisn. PIRI sh tckice in receetncasanenccsninieneenietanenns 2, 5, 6, 7

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In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1641

JEANNE MANARITE, PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-

A24) is reported at 44 F.3d 1407.

JURISDICTION

The judgment of the court of appeals was entered on

January 6, 1995. A petition for rehearing was denied,

and the opinion was amended, on March 15, 1995. The

petition for a writ of certiorari was filed on April 6,

1995. 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 District of Nevada, petitioner was con-

victed on two counts of money laundering (Counts 2

and 3), in violation of 18 U.S.C. 1956(a)(3)(A) and (B),

and one additional count of money laundering (Count

8), in violation of 18 U.S.C. 1956(a)(1)(B)G); one count

of transporting stolen property -n-interstate com-

merce (Count 6), in violation of 18 U.S.C. 2314; one

count of receiving stolen property (Count 7), in viola-

tion of 18 U.S.C. 2315; and one count of conspiring

to commit those and other offenses (Count 1), in

violation of 18 U.S.C. 371. Judgment at 1. She was

sentenced to 46 months’ imprisonment, to be followed

by a three-year term of supervised release. /d. at 2-3.

The court of appeals reversed petitioner’s conspiracy

conviction, affirmed her other convictions, vacated

her sentence, and remanded for resentencing. Pet.

App. Al-A24.

1. The FBI suspected that petitioner’s husband,

Samuel Manarite, was involved in criminal activity,

and an FBI informant, Richard McLaughlin, “set out

to ‘get close’” to him. Pet. App. A3; see Gov’t C.A.

Br. 4. Samuel Manarite suggested to McLaughlin

that they should “earn some money together.” Pet.

App. A8. Based on their previous conversations,

McLaughlin understood that suggestion to pertain to

illegal activity. Gov’t C.A. Br. 4. McLaughlin said

that he knew someone at a casino, and Samuel

Manarite suggested that they could make as much as

$500,000 by engaging in fraudulent credit trans-

actions at casinos. /d. at 4-5.

Petitioner and Samuel Manarite met with Mc-

Laughlin, and later also met with an FBI agent,

Se

William Matthews, who was posing as an employee of

the Maxim Casino in Las Vegas, Nevada. Gov't C.A.

Br. 4,5. McLaughlin said that Agent Matthews knew

a blackjack dealer who was skimming chips from the

casino, and that they needed a way to convert the

chips into cash. /d. at 5-6. Petitioner and Samuel

Manarite suggested several ways to cash the chips,

and they agreed to do so for half of the profits. /d.

at 6.

On March 19, March 20, March 27, and April 1, 1992,

McLaughlin gave petitioner a total of $13,000 in chips,

which she and her family cashed at the casino. Gov’t

C.A. Br. 6-8. Samuel Manarite then gave McLaughlin

his share of the cash. Jbid. McLaughlin asked

Samuel Manarite whether he wanted to stop the

scheme. Samuel Manarite responded that he did not,

and he repeatedly pressed McLaughlin to provide

more chips. /bid. On April 9 and April 15, 1992, Agent

Matthews met with Samuel Manarite and gave him a

total of $5,050 in chips. Jd. at 8-9. Samuel Manarite

again complained at the lack of chips; he told Agent

Matthews to pressure the blackjack dealer into skim-

ming more chips. /d. at 9.

On April 20, Agent Matthews told Samuel Manarite

that the dealer had stopped skimming chips. Gov’t

C.A. Br. 9. The two discussed fraudulent credit

transactions and the possibility of burglarizing hotel

rooms at the Maxim Casino. Jbid. On May 16, 1992,

petitioner’s son, Robert Manarite, and Robert’s

friend, Sandra Bonham, submitted a false credit

application to the casino, borrowed $5,000 in chips, and

left the casino with the chips. /d. at 10. Samuel

Manarite cashed some of the chips, and petitioner

distributed the cash proceeds. Ibid.

On June 2, 1992, Agent Matthews told Samuel

Manarite that he (Matthews) was involved in money

laundering for a drug dealer, and that the drug dealer

kept large amounts of cash on a boat in Marina Del

Rey, California. Gov’t C.A. Br. 11. Samuel Manarite

asked Agent Matthews whether he wanted him to

burglarize the boat, and Matthews said it was his

decision, but then said he would rather not have him

take the chance of being caught. Jbid. The Manarites

decided to burglarize the boat, and on June 9, peti-

tioner and her son, Robert, met McLaughlin in

Marina Del Rey. /d. at 12. McLaughlin showed them

where the boat would be docked. /bid. The next day,

Robert Manarite went onto the boat and took $18,300

in cash and chips, and three pieces of jewelry that had

been planted there by the FBI. Jbid. The Manarites

cashed the chips from the burglary and divided the

money among themselves. /d. at 12-13.

2. Neither petitioner nor her husband presented

any evidence at trial. Gov’t C.A. Br. 2. Petitioner

proposed an instruction on direct entrapment, which

stated that when “a person, having no previous

intention to violate the law, is talked into committing

acrime by government agents, she is entrapped, and

the law, as a matter of policy, forbids her conviction.”

C.A. Supp. E.R. 58. The court found that there was

no evidence that would warrant instructing the jury

on that theory. Gov’t C.A. Br. 3. Samuel Manarite

did not request an instruction on entrapment. See

Samuel Manarite C.A. Br. 17. Petitioner did not re-

quest an instruction on derivative entrapment.

3. The court of appeals reversed petitioner’s con-

spiracy conviction, and remanded for resentencing.

Pet. App. Al-A24. Count 1 of the indictment alleged

that petitioner conspired to commit several offenses,

fe eee

eg |

including mail fraud and wire fraud. The court held

that the mail fraud and wire fraud objects were

legally insufficient to constitute federal offenses.

Because the jury returned a general verdict of guilty,

the court reversed the conspiracy conviction, ex-

plaining that the jury might have relied on one of the

legally invalid objects in finding petitioner guilty of

the conspiracy. Pet. App. A5-A11.

The court affirmed petitioner’s money laundering

convictions on Counts 2 and 3 based on her cashing of

the stolen casino chips. Pet. App. Al2-A17. The court

rejected petitioner’s argument that she lacked the

intent “to promote the carrying on of specified unlaw-

ful activity,” as required by 18 U.S.C. 1956(a)(3)(A),

because that intent can “only be found when the

proceeds are ‘plowed back’ [reinvested] into the

activity.” Pet. App. Al5. The court noted that “[t]he

chip-skimming scheme could not benefit its parti-

cipants unless the chips were cashed,” and, accord-

ingly, “{a] rational jury could conclude that the

Manarites cashed the chips with the intent to

promote the chip-skimming scheme.” Jd. at A16.

The court rejected petitioner’s entrapment argu-

ment for the same reasons as the district court,

finding that “[t]here is no evidence whatsoever that

[petitioner] was the victim of government entrap-

ment.” Pet. App. A20. The court noted that “lijf any

inducement occurred, it was Samuel Manarite, not

[petitioner], who was induced,” but that even if

Samuel persuaded petitioner to participate in the

schemes, the Ninth Circuit does not recognize a

defense of “derivative entrapment.” Jd. at A1l9. In any

event, the court concluded, the evidence established

that petitioner and her husband “volunteered” to

commit the crime when they were given the

6

opportunity, and therefore they did not receive any

government “inducement”—.e., the type of govern-

ment conduct “that creates a substantial risk that an

otherwise law-abiding person will commit a crime.”

Id. at A20.

Finally, the court rejected petitioner’s claim that

she could not be convicted of transporting or re-

ceiving stolen property, because the government

“implicitly authorized” her “to take the government-

owned property from the boat through Agent

Matthews’ aid and encouragement.” Pet. App. A17.

Recognizing that petitioner’s claim “amounts to an

attack on sting operations generally,” the court found

that “(t]he property belonged to the government and

the Manarites took it and then transported and

disposed of it” without the government’s permission.

Id. at A17-A18. The court indicated that petitioner’s

broader challenge, to the “morality of [the] sting

operation[}” in this case, was in effect a restatement

of her failed entrapment claim. Jd. at A18.

ARGUMENT

1. Petitioner contends (Pet. 7-11) that this Court

should grant review to resolve a conflict in the courts

of appeals over the interpretation of the money laun-

dering statute, 18 U.S.C. 1956(a)(3)(A). A violation of

Section 1956(a)(3)(A) requires proof that the defen-

dant conducted a financial transaction involving prop-

erty represented by a law enforcement officer to be

the proceeds of specified unlawful activity, with the

intent “to promote the carrying on of [the] specified

unlawful activity.” Petitioner contends that the de-

cision below, which held that a financial transaction

may “promote” an unlawful activity even if its pro-

ceeds are not reinvested in the activity, conflicts with

decisions of the Seventh and Fourth Circuits. That

claim does not warrant review.’

In United States v. Jackson, 935 F.2d 832 (7th Cir.

1991), the defendant deposited the proceeds of drug

dealing into a church’s bank accounts, and then used

money from the accounts to buy pagers, mobile

telephones, and automobiles, and to pay his rent. 7d.

at 836-837, 841. The government charged that those

purchases violated 18 U.S.C. 1956(a)(1)(A)Gi), which

requires the defendant to engage in a financial

transaction “with the intent to promote the carrying

on of specified unlawful activity.””. The court held

that the purchase of the pagers “was intended to

promote [the defendant’s drug] activity, establishing a

violation of § 1956(a)(1){A)(i),” but that the other

purchases, and the payment of rent, were intended

only to “maintain[]” the defendant’s comfortable

“lifestyle,” not his drug dealing, and therefore did not

establish a money laundering violation under Section

1956(a)(1)(A)G). 935 F.2d at 841.

As the Third Circuit recognized in United States v.

Paramo, 998 F.2d 1212, 1217 (1993), cert. denied, 114 S.

Ct. 1076 (1994), “Jackson stands for the proposition

' This Court recently denied review in a case raising the

identical claim, Brown v. United States, cert. denied, 115 S.

Ct. 1404 (1995) (No. 94-7445).

2 As the court below explained (Pet. App. Al2 n.10), Section

1956(a)(1)(A)(i) is similar to Section 1956(a)(3)(A): “The pri-

mary difference between them is that § 1956(a)(1) requires the

money involved to be ‘in fact’ the proceeds of unlawful

activity, while § 1956(a)(3) is designed for government sting

operations using money ‘represented to be’ the proceeds of

unlawful activity, but which is, in fact, government property.”

In particular, as the court noted (Pet. App. A13), the two

provisions have “nearly identical intent requirements.”

that an intent to promote the carrying on of unlawful

activity cannot be inferred from the mere fact that a

defendant uses cash proceeds of such activity to pay

personal expenses or purchase consumer goods.”

Where the financial transaction is conducted as part

of the defendant’s illegal scheme, however, Jackson

does not shield the activity from prosecution. Be-

cause Jackson does not “suggest an intention either

to delineate the universe of conduct prohibited under

section 1956(a)(1)(A)(i), or to decide whether a defen-

dant could violate that section other than by plowing

back the proceeds of unlawful activity,” that decision

“cannot fairly be read to imply that a conviction under

section 1956(a)(1)(A)(i) necessarily requires evidence

that the defendant plowed back, or reinvested,

criminal proceeds.” Paramo, 998 F.2d at 1218; accord

United States v. Piervinanzi, 23 F.3d 670, 682 (2d

Cir.), cert. denied, 115 S. Ct. 259, 267 (1994).’

Petitioner derives no greater support from her

reliance (Pet. 10-11) on United States v. Heaps, 39

F.3d 479 (4th Cir. 1994). Heaps reversed a money

laundering conviction because “(t]here was no

evidence nat the money acquired through the

payment [at issue] was itself used to promote an

% As petitioner points out (Pet. 9), the court in Jackson

stated that Section 1956(a)(1)(A)(i) is “aimed” at “the practice

of plowing back proceeds of ‘specified unlawful activity’

to promote that activity.” 935 F.2d at 842. That statement,

however, was merely an attempt to contrast an obvious

application of Section 1956(a)(1)(A)(i) with the scope of Sec-

tion 1956(a)(1)(B)(i), which applies to financial transactions

designed to “conceal” the attributes of laundered funds. The

statement does not amount to a holding that a transaction can

never “promote” illegal activity in the absence of “plowing

back.” See Paramo, 998 F.2d at 1218.

unlawful activity.” Jd. at 486. The court noted that

“the only evidence as to what was done with the

money after it was sent [to the defendant in payment

for drugs] was that it was put in a box in a drawer of

the defendant’s house.” Jbid. The court concluded

that the statute “should not be interpreted to make

any drug transaction a money laundering crime.”

Ibid. It also stated that its interpretation was

“squarely consistent” with the rationale of Jackson,

and indicated that “[t]o the extent” its decision was

inconsistent with the views of the Third and Ninth

Circuits, it would not apply those decisions. [bid.

It is unclear whether the court in Heaps intended

to adopt a “plowing back” theory. In any event, any

disagreement among the courts of appeals on that

issue is not squarely presented here. Unlike Heaps,

this case did not involve a single transfer of funds, in

which there was no proof of further transactions or

intention to encourage them. 39 F.3d at 484. Rather,

as noted above, petitioner engaged in a continuing

fraudulent scheme. Moreover, the financial trans-

actions in this case—cashing the chips—were not

only designed to “promote” the carrying on of the

illegal chip-skimming, they were integral to its

success, because the chips themselves have no

intrinsic value outside the casino. As the court of

appeals explained (Pet. App. A16), “(t]he chip-

skimming scheme could not benefit its participants

unless the chips were cashed.” Thus, petitioner’s

financial transactions were intended to promote the

carrying on of the unlawful activity; Heaps does not

suggest that the Fourth Circuit would reach a

contrary result in this case.

2. Petitioner also contends (Pet. 12-16) that the

district court erred in refusing to instruct the jury

10

on the defense of derivative entrapment, and that this

Court should grant review to resolve a circuit con-

flict over the existence of that defense. The court

below correctly rejected petitioner’s claim of entrap-

ment. No further review is warranted.

Entrapment is an affirmative defense that is

implicated only when law enforcement officials “im-

plant in the mind of an innocent person the disposition

to commit the alleged offense and induce its com-

mission in order that they may prosecute.” Sorrells

v. United States, 287 U.S. 485, 442 (1932). Thus, “the

entrapment defense has two parts: (1) the govern-

ment’s ‘inducement’ of criminal behavior; (2) by a

defendant who was not ‘predisposed’ to commit the

crime.” United States v. Gendron, 18 F.3d 955, 960

(Ist Cir.) (Breyer, J.), cert. denied, 115 S. Ct. 654

(1994); see also Jacobson v. United States, 112 S. Ct.

1535, 1540 (1992); United States v. Russell, 411 U.S.

423, 435-436 (1973).

In keeping with those principles, the courts of

appeals have uniformly recognized that “[t]here is no

defense of private entrapment.” United States v.

Hollingsworth, 27 F.3d 1196, 1203 (7th Cir. 1994) (en

bance); see also Russell, 411 U.S. at 483. Thus, the law

does not “permit an innocent minded defendant to

raise an entrapment claim when a private person

‘induced’ him (through * * * ‘overreaching’ conduct)

to commit acrime * * *, however ‘outrageous’ the

private person’s conduct” may have been. Gendron,

18 F.3d at 962-963.‘ The vast majority of the courts of

4 See, e.g., United States v. Martinez, 979 F.2d 1424, 1432

(10th Cir. 1992), cert. denied, 113 S. Ct. 1824, 3019 (1993);

United States v. Robins, 978 F.2d 881, 884-885 (5th Cir. 1992);

United States v. Pilarinos, 864 F.2d 253, 256 (2d Cir. 1988);

1]

appeais have applied that principle in cases of so-

called “derivative entrapment”—i.e., when the private

person who induces the defendant’s commission of the

crime was himself entrapped or otherwise subject to

improper pressures by government agents. See, e.g.,

United States v. Martinez, 979 F.2d 1424, 1432 (10th

Cir. 1992), cert. denied, 113 S. Ct. 1824, 3019 (1993);

United States v. Sarmiento, 786 F.2d 665, 667-668 (5th

Cir. 1986); United States v. Stewart, 770 F.2d 825, 831

(9th Cir. 1985), cert. denied, 474 U.S. 1103 (1986);

United States v. Leroux, 738 F.2d 943, 948 (8th Cir.

1984). The reason for disallowing such a defense is

that if an individual is willing to break the law when

persuaded to do so by a private party, he should not

escape liability simply because the government may

have acted improperly toward that other party.

Hollingsworth, 27 F.3d at 1218 (Ripple, J., dissenting).

Petitioner claims (Pet. 12-16) that the lower courts

are divided on the validity of “derivative entrapment”

as a defense, with the Second and Seventh Circuits

endorsing that defense. In the Second Circuit, a

defendant is entitled to a jury instruction on that

defense when the government directly transmits an

inducement to him, or “consciously recruit[s]” him,

United States v. Bradley, 820 F.2d 3, 7-9 (1st Cir. 1987); United

States v. Sarmiento, 786 F.2d 665, 667-668 (5th Cir. 1986);

United States v. Stewart, 770 F.2d 825, 831 (9th Cir. 1985),

cert. denied, 474 U.S. 1103 (1986); United States v. McLernon,

746 F.2d 1098, 1109 (6th Cir. 1984); United States v. Lerouz,

738 F.2d 943, 948 (8th Cir. 1984); United States v. Beverly, 723

F.2d 11, 12 (8d Cir. 1983) (per curiam); United States vy. Mers,

701 F.2d 1321, 1340 (11th Cir.), cert. denied, 464 U.S. 991

(1983); United States v. Dove, 629 F.2d 325, 329 (4th Cir. 1980);

United States v. Burkley, 591 F.2d 903, 911 n.15 (D.C. Cir.

1978), cert. denied, 440 U.S. 966 (1979).

12

through a third party. United States v. Toner, 728

F.2d 115, 127 (2d Cir. 1984); see United States v.

Pilarinos, 864 F.2d 253, 256 (2d Cir. 1988). Thus, to

establish the defense in the Second Circuit, a defen-

dant generally must show that the third party is

being used as a cat’s paw for an investigation that is

directed at the defendant himself.’ In Hollingsworth,

the Seventh Circuit appeared to adopt that standard,

holding that “when a private individual, himself

entrapped, acts as agent or conduit for governmental

efforts at entrapment, the government as principal is

bound.” 27 F.3d at 1204.

That articulation of the “derivative entrapment”

defense accords with the principle, accepted by all of

the courts of appeals and by this Court, that entrap-

ment may exist where a third party, who is not a law-

enforcement officer, purposefully acts as an agent of

the government in transmitting inducements to the

defendant. See, e.g., Sherman v. United States, 356

U.S. 369, 373-374 (1958) (defendant entrapped by

5 Petitioner relies (Pet. 13-14) on the Second Circuit’s de-

cision in United States v. Valencia, 645 F.2d 1158 (1980)

(Valencia I), which appeared to endorse a broader theory of

derivative entrapment. /d. at 1168; see id. at 1176-1179 (Van

Graafeiland, J., dissenting from denial of rehearing en banc in

Valencia 1). Since Valencia I, however, the Second Circuit has

substantially “retrenched” from the implications of that deci-

sion. Hollingsworth, 27 F.3d at 1204; see id. at 1218 (Ripple, J.,

dissenting) (“the Second Circuit’s decision in [Valencia I] has

been placed in doubt by the subsequent caselaw of that

circuit”); Pilarinos, 864 F.2d at 256; Toner, 728 F.2d at 126-127;

see also United States v. Valencia, 677 F.2d 191, 192 (2d Cir.

1982) (Valencia I[1).

13

government informant).®° Some courts use the “de-

rivative entrapment” rubric to describe those agency

cases, see, e.g., Hollingsworth, 27 F.3d at 1204;

Pilarinos, 864 F.2d at 256, while other courts reject

that label while still recognizing the availability of

entrapment as a defense in such circumstances, see,

e.g., United States v. Bradley, 820 F.2d 3, 7 n.6 (1st

Cir. 1987). Whatever name courts attach to the

defense, however, it depends on a finding of agency

between the government and the third party who

communicated the inducement to the defendant.

The application of agency principles to the entrap-

ment context has produced only one narrow dis-

agreement among the courts of appeals. The Second

and Seventh Circuits hold that an “unwitting

middleman”—i.e., an innocent third party who does

not know of the government’s focus on the defendant

—may be deemed a government agent for purposes of

entrapment law when the government purposefully

uses the middleman to induce the defendant to commit

acrime. See Pilarinos, 864 F.2d at 256; Hollings-

worth, 27 F.3d at 1204. In contrast, the Fifth and

Ninth Circuits have held that such a middleman

generally is not a government agent. See Sarmiento,

786 F.2d at 667-668; United States v. Emmert, 829

F.2d 805, 808-809 (9th Cir. 1987).’

8 See also Hollingsworth, 27 F.3d at 1204-1205; Robins, 978

F.2d at 884-885; Bradley, 820 F.2d at 7-8; Sarmiento, 786 F.2d

at 667-668; McLernon, 746 F.2d at 1109; Mers, 701 F.2d at 1340;

United States v. Garcia, 546 F.2d 613, 615-616 (5th Cir.), cert.

denied, 430 U.S. 958 (1977).

7 Petitioner also claims (Pet. 14) that the D.C. Circuit allows

the derivative defense, and she relies for that claim on Johnson

v. United States, 317 F.2d 127 (1963). In Johnson, however,

the middleman was a knowing participant in the government's

14

That narrow disagreement is not implicated by the

facts of this case for three reasons. First, petitioner

is presenting her claim of derivative entrapment for

the first time in this Court. She did not request a

derivative entrapment instruction in the district

court; she requested only a direct entrapment in-

struction. See C.A. Supp. E.R. 55-59. Nor did she

present her derivative entrapment claim to the court

of appeals. See Pet. C.A. Br. 14-18; Pet. C.A. Rep. Br.

7-10. While the court of appeals alluded to the

doctrine, it did so only to reject her direct entrapment

claim—by pointing out that petitioner was brought

into the crime by her husband, if by anyone. Pet. App.

Al9. Thus, petitioner cannot now argue that the

district court erred in refusing to give a derivative

entrapment instruction. See, e.g., United States v.

Alvarez-Sanchez, 114 S. Ct. 1599, 1605 n.5 (1994);

Berkemer v. McCarty, 468 U.S. 420, 448 (1984).

Second, petitioner has not articulated a legally

valid entrapment claim under the law of any circuit.

Petitioner does not suggest that her husband was a

government agent under ordi “y agency principles

(see Pet. i), and both courts below concluded that

there was no evidence that petitioner was entrapped

by any government agent. See Pet. App. A19-A20.

Nor does petitioner assert that the government

“consciously recruited” her through her husband. At

contact with the defendant. See id. at 128. In United States v.

Mayo, 498 F.2d 713 (1974), the D.C. Circuit cited Johnson for

the proposition that entrapment exists where “a private

citizen” acts “as an agent” of the government, and held that

“where there is no showing that the agent provocateur was

purposefully acting on behalf of the Government the defense

does not obtain.” Jd. at 716-717.

most, she suggests that the government entrapped

her husband, and that he passed on the inducement

to her of his own accord. See Pet. 12. As the Second

Circuit has repeatedly held, a defendant is not

entitled to an entrapment instruction where a

government agent entraps a middleman, “and the

middleman, responding to the pressure upon him,

takes it upon himself to induce” the defendant to

commit a crime. Pilarinos, 864 F.2d at 256; see

Toner, 728 F.2d at 127; see also Hollingsworth, 27

F.3d at 1204.

Third, there was no evidence of entrapment of any

defendant, including petitioner’s husband, in this

case. The court of appeals correctly concluded that

“McLaughlin’s actions did not rise to the level of

inducement,” and that, far from being entrapped,

petitioner and her husband both “volunteered” to cash

the stolen chips. Pet. App. A20. Because there was

no evidence to support the claim that petitioner was

entrapped, whether directly or derivatively, that

claim would fail under even the most generous

articulation of the entrapment defense.

3. Petitioner contends (Pet. 16-18) that the

property taken from the boat in Marina Del Rey was

not “stolen” property under 18 U.S.C. 2315 because

the government authorized the defendants to take it.

As the court of appeals concluded (Pet. App A18),

however, the government “did not give [petitioner]

permission to take property from the * * * boat.”

Nor is petitioner assisted (Pet. 17) by United States

v. Dove, 629 F.2d 325 (4th Cir. 1980). As the court of

appeals explained, in contrast to Dove, “[t]here is no

question in this case about whether the property

taken retained its stolen character.” Pet. App. A17.

16

Petitioner also claims that the government en-

couraged her to steal the property, and that there is a

“dearth of law” (Pet. 18) on the question of when such

encouragement precludes a conviction under Section

2315. In fact, as the court of appeals correctly held,

petitioner would not be entitled to relief on her theory

of governmental encouragement unless she could

demonstrate entrapment, which she failed to do. See

Pet. App. A18.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Drew S. DAYS, Ill

Solicitor General

JOANN HARRIS

Assistant Attorney General

DAVID S. KRIS

Attorney

JUNE 1995