# Opposition Brief — Manarite v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1158

## Text

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

Page
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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1534%3A2. Public record. Not legal advice.