PAUL A. JOHNSON, PETITIONER V. UNITED STATES OF AMERICA No. 89-7138 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A1-A2) is unpublished. JURISDICTION The judgment of the court of appeals was entered on February 7, 1990. The petition for a writ of certiorari was filed on April 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the attorney-client privilege barred the admission against petitioner of his letter to a personal friend, his former attorney, asking for an opinion concerning the entrapment defense petitioner proposed to present at trial. STATEMENT Following a jury trial in the United States District Court for the District of Columbia, petitioner was convicted on one count of possession of more than 500 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a); one count of conspiring to commit that offense, in violation of 21 U.S.C. 846; and five counts of using a telephone to facilitate a drug offense, in violation of 21 U.S.C. 843(b). He was sentenced to 235 months' imprisonment on the possession and conspiracy counts and 96 months' imprisonment on each of the Section 843(b) counts, all sentences to run concurrently. In addition, he was sentenced to an eight-year term of supervised release. The court of appeals affirmed. Pet. App. A1-A2. 1. The evidence at trial showed that, between 1984 and April 1988, petitioner and Louis Scanga engaged in eight drug transactions, seven involving cocaine. Gov't C.A. Br. 3. After his arrest in April 1988, Scanga agreed to cooperate with the government. Scanga contacted petitioner, and over the next several months the two arranged a multi-kilogram cocaine deal over the telephone. The telephone conversations were recorded by the FBI and the resulting tapes were played for the jury at trial. Id. at 3-4. When Scanga initially contacted petitioner in April 1988, they discussed cocaine. Gov't C.A. Br. 4. In response to three calls to Scanga's pager in July 1988, Scanga called petitioner. Petitioner told Scanga about a cocaine connection in New York and quoted a price of $18,000 for one kilogram of cocaine. Ibid. On August 29, 1988, Scanga called petitioner in response to petitioner's call to Scanga's pager. Petitioner told Scanga that petitioner's New York connection would like to arrange an ongoing relationship. Gov't C.A. Br. 5. On September 3, 1988, petitioner told Scanga over the telephone that a friend had provided him with some cocaine, but it was only 50 percent pure. Petitioner then put his New York connection, John Wan, on the line. Wan told Scanga that he could get Scanga whatever he wanted. Ibid. On September 5, 1988, petitioner travelled to Washington, D.C. and checked into a hotel where Scanga, wearing a body wire, visited him. Gov't C.A. Br. 6. During the visit, petitioner demonstrated his intimate knowledge of the drug trade. He told Scanga that there was a lot of "smoke" in Virginia. He talked at length about the need to establish a relationship with the New York suppliers in order to ensure regular and larger supplies of cocaine at better prices. He discussed the drug deals he had previously done with Scanga, contrasting his long-standing relationship with Scanga to the new relationship with the New York suppliers. When Scanga expressed some concern about conducting the sale at a hotel near the airport, petitioner assured him that no problems would arise if they exchanged briefcases as they had done previously. Petitioner stated that the New York suppliers had 500 kilograms of cocaine to sell, which they had obtained through a direct connection with Colombia that bypassed Miami. He assured Scanga that once the relationship was established, larger regular deals could be arranged. Id. at 6-7. The next day, petitioner, Wan, and two other men went to another hotel, where petitioner had rented a room. In the room, petitioner tested the cocaine and pronounced it satisfactory. Scanga, who was in another room in the same hotel, called petitioner and asked him to bring the cocaine to Scanga's room. When petitioner refused, Scanga went to petitioner's room. There, petitioner handed Scanga a piece of paper on which petitioner had written the price of the cocaine. Gov't C.A. Br. 7-8. Petitioner left the room before the exchange of drugs and money took place. Immediately following the transaction, FBI agents arrested petitioner in the hallway of the hotel. Id. at 8. 2. At trial, petitioner admitted the transaction with which he was charged, but claimed that he had been entrapped by the government. During cross-examination of petitioner, in an attempt to show that petitioner's entrapment defense was a recent fabrication, the prosecutor asked whether petitioner had described his defense in a letter he had written to attorney George Drake a few weeks earlier in which he asked Drake whether that story would "fly." Gov't C.A. Br. 12. Defense counsel objected to the question on the ground of attorney-client privilege and stated that he had never seen the letter. In light of petitioner's own testimony that Drake was not representing him in this case and that Drake was one of his "closest friends," the district court concluded that the letter was nonprivileged and allowed the prosecutor to pursue the line of inquiry. Ibid. After petitioner's cross-examination, defense counsel moved to strike his testimony concerning the letter or for a mistrial. He maintained that the government's failure to produce the letter violated Fed. R. Crim. P. 16. In response, the prosecutor explained that the FBI had lost the letter, and that the prosecutor had based her questions on a report written by an FBI agent, whom Drake had contacted and provided with a copy of the letter. The prosecutor gave a copy of the agent's report to defense counsel, and the district court denied the defense motion. On redirect examination, petitioner elaborated on his personal friendship with Drake and denied asking Drake whether his entrapment defense would "fly." Gov't C.A. Br. 13. Thereafter, the government obtained a copy of the letter and provided it to the defense. Gov't C.A. Br. 14. In the letter, which was admitted into evidence, petitioner related his entrapment defense to Drake and then wrote, "George, give me your analysis of my chances in court." Gov't C.A. Br. App. 48-50. Defense counsel again moved for a mistrial on the ground that the letter was privileged, and the district court denied the motion. Gov't C.A. Br. 14. 3. On appeal, petitioner contended that the letter to Drake should have been provided to the defense under Fed. R. Crim. P. 16 and that it was protected from disclosure by the attorney-client privilege. The court of appeals rejected these claims, stating (Pet. App. A1-A2): The Government's admitted but unintentional violation of Rule 16 of the Federal Rules of Criminal Procedure, in omitting disclosure of the letter obtained from (petitioner's) former attorney, does not justify reversal. The letter did not fall within the ambit of the attorney-client privilege and, in view of the overwhelming weight of the evidence pointing toward (petitioner's) predisposition to distribute a controlled substance and his guilt of the offenses of which he was convicted, the error was not prejudicial. ARGUMENT Petitioner renews his contention that his letter to Drake was protected by the attorney-client privilege. The privilege permits a person to prevent testimonial disclosure of communications made in confidence between himself and his lawyer during the course of a professional lawyer-client relationship. See, e.g., United States v. Bay State Ambulance and Hospital Rental Service, Inc., 874 F.2d 20, 27-28 (1st Cir. 1989); United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986), cert. denied, 480 U.S. 938 (1987), United States v. Kelly, 569 F.2d 928, 938 (5th Cir.), cert. denied, 439 U.S. 829 (1978); United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-359 (D. Mass. 1950). It is an essential element of the privilege that the person asserting it "was or sought to be a client of (the attorney)." Bay State Ambulance and Hospital Rental Service, Inc., 874 F.2d at 27-28 (quoting United States v. Wilson, 798 F.2d 509, 512 (1st Cir. 1986)). See also Kelly, 569 F.2d at 938; 24 Wright & Graham, Federal Practice and Procedure: Evidence Section 5474, 116. The burden of demonstrating the existence of an attorney-client relationship is on the person asserting the privilege. Bay State Ambulance and Hospital Rental Service, Inc., 874 F.2d at 28; In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984); United States v. Stern, 511 F.2d 1364, 1367 (2d Cir.), cert. denied, 423 U.S. 829 (1975). The trial court's factual determination as to the existence of an attorney-client relationship is reviewable only for clear error. United States v. Dennis, 843 F.2d 652, 657 (2d Cir. 1988); Wilson, 798 F.2d at 512; Steiner v. United States, 134 F.2d 931, 935 (5th Cir.), cert. denied, 319 F.2d 774 (1943); 1 J. Weinstein & Berger, Weinstein's Evidence Section 104(04), at 104-29 to 104-31 (1985 ed.); 24 Wright & Graham, supra, Section 5507, 569. Here, the district court determined that petitioner was not, nor did he seek to become, Drake's client. The court of appeals evidently concurred in that determination. This factual finding by the two lower courts was not clearly erroneous and therefore should not be disturbed. See United States v. Doe, 465 U.S. 605, 614 (1984) ("Traditionally, we * * * have been reluctant to disturb findings of fact in which two courts below have concurred"). Petitioner himself testified that Drake did not represent him in this case, and Drake told the FBI the same thing. Further, there is no evidence that petitioner paid Drake for any services. Although the payment of a fee is not a prerequisite to a finding of a privileged professional relationship, the courts have indicated that failure to pay a fee is evidence that no professional relationship was intended. Bay State Ambulance and Hospital Rental Service, Inc., 874 F.2d at 28-29; Wilson, 798 F.2d at 513. Moreover, the fact that Drake, on his own initiative, contacted the government and disclosed his friend's letter suggests that Drake himself did not regard his relationship with petitioner as privileged. Viewing these factors in the light of petitioner's testimony that Drake was perhaps his closest friend, the courts below could reasonably conclude that petitioner wrote to Drake in Drake's personal rather than in his professional capacity. In any case, any error in admitting the evidence of the letter was harmless. It is well settled that there can be no entrapment where the defendant was predisposed to commit the charged offense, even where government agents provide him with the opportunity to do so. See United States v. Russell, 411 U.S. 423, 426 (1973). Here, as the court of appeals held (Pet. App. A2), the evidence of petitioner's predisposition to distribute narcotics was "overwhelming." Scanga testified that he previously had made seven purchases of cocaine from petitioner, and the tape-recorded meeting between petitioner and Scanga corroborated that testimony. In addition, the tape-recorded telephone conversations are replete with petitioner's assertions that the transaction was only the beginning of a large and continuous flow of cocaine to Washington, D.C. and with his promises to assist Scanga in establishing an ongoing relationship with the New York suppliers. The taped meeting also demonstrated petitioner's intimate familiarity with the drug trade. In light of this conclusive evidence of predisposition, the government's attempt to use the letter to Drake to show that petitioner's entrapment defense was fabricated could not possibly have affected the outcome of the trial. /1/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /2/ EDWARD S.G. DENNIS, JR. Assistant Attorney General JOEL M. GERSHOWITZ Attorney JUNE 1990 /1/ It is worth noting further that the letter to Drake constituted extremely weak evidence of recent fabrication. Petitioner merely set forth the factual basis for the defense and asked Drake to evaluate its chances of success. There is no suggestion in the letter that the defense was "made up." /2/ The Solicitor General is disqualified in this case.