No. 97-5097 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 CHARLOT THICKSTUN, PETITIONER v. 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 SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the district court's entrapment instructions constituted plain error because they did not instruct the jury in accordance with the theory of "positional predisposition." 2. Whether the district court's entrapment instructions constituted plain error on the ground that they did not sufficiently address petitioner's claim that she was entrapped indirectly through a co-conspirator. (1) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 97-5097 CHARLOT THICKSTUN, PETITIONER v. 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 OPINIONS BELOW The published portion of the court of appeals' decision (Pet. App. A1-A13) is reported at 110 F.3d 1394. The remainder of the decision (Pet. App. A14-A20) is unpublished, but the decision is noted at 111 F.3d 139 (Table). JURISDICTION The judgment of the court of appeals was entered on April 3, 1997. The petition for a writ of certiorari was filed on July 1, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following a jury trial in the United States District Court for the District of Alaska, petitioner was convicted on two counts of bribing an Internal Revenue Service (IRS) agent, in violation of 18 U.S.C. 201(b) (l), and on one count of conspiring to commit that offense, in violation of 18 U.S.C. 371. Petitioner was sentenced to 24 months' imprisonment, to be followed by a 24-month term of supervised release. The court of appeals affirmed. Pet. App. A1-A20. 1. In 1994, while IRS agent Gregory Hysom was conducting an audit of John Nazaroff's unpaid taxes, Nazaroff offered him a $5,000 bribe to "zero out" his $785,000 tax liability. Hysom reported that bribe offer to the IRS and was instructed to appear receptive to the scheme. Nazaroff bribed Hysom in two cash payments. When making the second in October 1994, Nazaroff asked Hysom to- help out a "gal-friend" petitioner who had tax problems. Petitioner owed $476,000 in unpaid taxes, with interest and penalties, because she had failed to pay taxes for almost a decade. Pet. App. A4; Gov't C.A. Br. 3-9, 11 n.6. At the time Nazaroff raised her name with Hysom, petitioner had filed-her delinquent tax returns and had hired an attorney to deal with the IRS, but she had not reached a settlement. Pet. App . A4-A5 . Hysom pretended to go along with the scheme suggested by Nazaroff, who arranged for petitioner and Hysom to discuss the matter by telephone. Gov't C.A. Br. 9-10. In their initial conversation, petitioner introduced the subject of the ---------------------------------------- Page Break ---------------------------------------- 3 bribe and eagerly offered to pay Hysom a total of $5,000, with an initial payment of about $3,000, to eliminate her tax liability. Id. at 11-12; Pet. App. A6-A7. Petitioner later made two separate cash payments to Hysom, totaling $5,000. Gov't C.A. Br. 12-13. 2. Petitioner was indicted on two counts of bribery and on one count of conspiring with Nazaroff to commit bribery. She focused much of her defense at trial on the theory that she had been entrapped, and the district court delivered a series of detailed instructions on the issue of entrapment. See Pet. App. D1-D4. Although petitioner had proposed her own set of entrapment instructions, see id. at F1-F6J she did not object when the district court rejected them, see id.. at A18-A19; Gov't C.A. Br. 40. The jury convicted petitioner on all three counts, and the district court denied her motion for a new trial. Pet. App . B1-B8. 3. a. The court of appeals affirmed. In denying petitioner's entrapment claims, it first rejected her argument that the evidence, viewed in the light most favorable to the government, was insufficient to permit a reasonable jury to find that she was predisposed to commit the offense before her contact with Hysom. Pet. App. A5. The court based' that determination ___________________(footnotes) 1 Petitioner was tried jointly with Nazaroff, who was also charged with two bribery counts and a conspiracy count. Nazaroff also raised-an entrapment defense at trial, and he was also convicted by the jury on all counts against him. The court of appeals affirmed Nazaroff's conviction along with petitioner's. Pet. App. A14-A20. ---------------------------------------- Page Break ---------------------------------------- 4 on, among other considerations, petitioner's tax debt of nearly half a million dollars and her profit motive for engaging in the bribery scheme. Id. at A6. The court also noted that the jury had heard recordings of petitioner's telephone conversations with Hysom, and that in those conversations petitioner had "broached the topic of the bribe" and had "show[n] no reluctance to -commit the crime." Ibid. Indeed, the court added, those recordings demonstrated petitioner's eagerness and enthusiasm for the bribery scheme. Pet. App. A6-A7; see also Pet. App. B6-B7. The court also found that any government inducement was minimal and that Hysom "encouraged" the bribe only in the sense that he gave her "the opportunity to make it." Pet. App . A7-A8. The court rejected petitioner's argument, based on United States v. Hollingsworth, 27 F.3d 1196 (7th Cir.1994) (en bane), that a defendant may be "predisposed" to commit a crime only if he or she is in "position" to commit it i e has "the means to accomplish it" without government assistance." Pet. App. A8-A9. The court recognized that "[al person's ability to commit a crime may illustrate her predisposition to do so, "but held that such ability "should not become a separate element to be proven." Ibid. Nothing in Jacobson v. United States, 503 U.S. 540 (1992), the court held, `is to the contrary. Pet. App. A9 ("We read Jacobson not as creating a requirement of positional readiness but as applying settled entrapment law."). The court observed that petitioner's theory of entrapment "would be especially problematic in bribery cases, " because " [a] person is ---------------------------------------- Page Break ---------------------------------------- 5 never `positionally' able to bribe a public official without cooperation from that official." Id. at A9. b. The court also rejected petitioner's claim that she was entrapped by Nazaroff, who, she claimed, had been acting as an unwitting government agent." The court reasoned that Nazaroff "did not know that he was working with the government" and that "a principal wrongdoer, not knowingly working for the government, cannot entrap his co-conspirator." Pet. App. A9-A11. Entrapment is a "narrow" defense that does not apply, the court explained "when one criminal simply convinces another to join him in " criminal enterprise." Id. at A10. The court noted that it had previously rejected the similar but distinct defense of derivative entrapment," advanced where "an entrapped [private] individual induces the defendant to commit a crime, it but it observed that that petitioner could not rely on such a defense here in any event because Nazaroff was not himself entrapped Id. at All and n.3. In the unpublished portion of its opinion, Pet. App. A14- A20, the court separately observed that petitioner had failed to object to the district court's failure to adopt, inter alia, her proposed charge on an "unwitting agent" theory. For that reason, the court held, it would review the district court's decision to exclude that charge only for plain error under Fed. R. Crim. P. 52 (b) . Employing that standard, the court rejected petitioner's challenge on the ground that petitioner "did not present evidence that would have permitted the jury to find that Nazaroff ---------------------------------------- Page Break ---------------------------------------- 6 entrapped her or that he acted as a government agent." Pet.App. A18. ARGUMENT 1. Petitioner first contends that the district court erred in its entrapment instructions by "fail[ing] to explain to the jury that before it could find that [she] was predisposed to bribe Hysom, she had to have some capacity to bribe the IRS, aside from any government involvement." Pet. 17. She argues that "[t]he jury was never able to consider whether [she] had the capacity to bribe Hysom" and asserts that the court of appeals' affirmance of her conviction therefore conflicts with the decisions of two other circuits. Ibid That claim does not merit this Court's review. I We agree with the court of appeals that Jacobson v. United States, 503 U.S. 540 (1992), did not create a new "positional" component to the entrapment defense. Nonetheless, there is some emerging disagreement among the courts of appeals concerning the application of the entrapment defense in cases where the defendant, despite a willingness to commit an offense, was not in "position" i.e, lacked the practical ability to commit it without government assistance. Compare United States v. Hollingsworth, 27 F.3d 1196, (7th Cir. 1994) (adopting theory of "positional" predisposition); United States v. Knox 112 F.3d 802 5th Cir.) (following Hollingsworth}, rehearing en bane granted, No. 96-50340, 1997 WL 453354 (5th Cir. Aug. 5, 1997)", with Pet. App . 9 (declining to adopt that theory); United States v. ---------------------------------------- Page Break ---------------------------------------- 7 Gendron, 18 F.3d 955, 962 (lst Cir.) (appropriate inquiry the defendant likely would have reacted to an ordinary opportunity to commit the crime") , cert. denied, 513 U.S. 1051 (1994). The extent of that disagreement, however, is still unclear. Compare Pet. App. A9 ("A person's ability to commit a crime may illustrate her predisposition to do so, but should not become a separate element to be proven.") with Hollingsworth, 27 F.3d at 1199-1200 ("We do not suggest that Jacobson adds a new element to the entrapment defense 'readiness' or 'ability' or `dangerousness' on top of inducement and, most important predisposition. * * * Rather, the Court clarified the meaning of predisposition."). Moreover the Fifth Circuit recently granted rehearing en bane to revisit the relevant portion of the Knox decision. See Order Granting Rehearing En Banc, No. 96-50340, 1997 WL 453354. (Aug. 5, 1997) . In any event, this case would be an inappropriate vehicle for addressing the general issue of "positional predisposition." Both Hollingsworth and Knox involved complex crimes in each case, money laundering offenses that are ordinarily committed without government involvement. Such crimes clearly present the issue addressed in those cases: whether a defendant is. properly described as "predisposed" to commit- a crime if, "absent government involvement," Knox 112 F.3d at 807, he would have found it difficult as a practical matter to carry out his wish to commit the crime. By contrast, this case involves a crime bribery of a public official that by definition requires the ---------------------------------------- Page Break ---------------------------------------- 8 involvement of a government official, whether or not the official is criminally culpable. Moreover, bribery, unlike the complex money laundering crimes at issue in Hollingsworth and Knox requires no special knowledge or expertise: it simply requires the willingness to pay money to a public official in exchange for an illicit favor. Compare Hollingsworth, 27 F.3d at 1.202 ("to get into the international money-laundering business you need underworld contacts, financial acumen or assets, access to foreign banks or bankers, or other assets") ; Knox, 112 F.3d at 807-808(similar). 2. In these circumstances, the issue of a defendant's "positional" predisposition to commit a crime, to the extent that it is an issue at all, is not clearly distinct from the traditional inquiry into whether the defendant was subjectively "willing" to commit the crime without extraordinary inducement. See Hollingsworth, 27 F.3d at 1200 ("A public official is in a position to take bribes," and therefore, when the official is the defendant, "all that must be shown to establish predisposition and thus defeat the defense of entrapment is willingness to ___________________(footnotes) 2 Petitioner suggests that the government provided petitioner the means to commit the offense in that "Hysom loaned [her] the money to make the bribe." Pet. 4. The government loaned no funds to petitioner. Petitioner's comment can refer only to her second bribe payment, after she had already paid Hysom an initial $4,000. To ensure that Nazaroff would be available for arrest when petitioner made her second payment, Hysom called him and pretended that he would be coming to see him at that time to deliver Nazaroff's Alaska PFD (permanent fund dividend) check of approximately $1,000. 6 RT 73-75 (Gov't C.A. E.R. 68-69]: While petitioner may have borrowed the cash for her second bribe payment from Nazaroff, the government did not provide those funds. See Gov't C.A. Br. 38-39. ---------------------------------------- Page Break ---------------------------------------- 9 violate the law without extraordinary inducements; ability can be presumed."); id. at 1203 (there is no entrapment in "a case in which the government had merely furnished the opportunity to commit the crime to someone already predisposed to commit it") (citing Jacobson, 503 U.S.. at 548). 3. Petitioner received a jury instruction detailing that traditional predisposition inquiry, Pet. App. D1-D4, and to some extent her claim therefore collapses into a factbound challenge to the sufficiency of the evidence to support the jury's guilty verdict. In sum, although this Court may someday wish to review the issues addressed in Hollingsworth and Knox, it should wait for a case where the issue of "positional predisposition" is squarely presented: where, among other considerations, the crime at issue is normally committed among private individuals and where it requires special expertise or assets. A second consideration independently makes this case an inappropriate vehicle for review of the issue of "positional predisposition." Petitioner frames her claim on that issue as a challenge to the district court's jury instructions. See Pet. 4, 17-18. In the district court, however, petitioner did not clearly preserve that challenge, either by proposing an instruction explicitly embodying a theory of "positional predisposition" (cf. Pet. App- F1-F6) or by objecting to the ___________________(footnotes) 3 As those passages in Hollingsworth suggest, it is not clear that petitioner's claim would have prevailed in the Seventh Circuit. And, as noted, the Fifth Circuit has granted rehearing en bane to revisit the entire issue of "positional predisposition." ---------------------------------------- Page Break ---------------------------------------- 10 district court's actual instructions on the ground that they erroneously omitted such a theory. As a result, although the court of appeals appears to have addressed the" theory strictly on the merits, see Pet. App. A8-A9; cf. id. at A18-A19, petitioner's challenge is nonetheless properly reviewed under the "plain error" standard of Fed. R. Crim. P. 52(b) . See Gov't C.A. Br. 40. In our view, petitioner cannot satisfy that rigorous standard: among other considerations, the district court's decision not to include an instruction on "positional predisposition, " even if it could be considered error, could not be considered "plain," "clear," or "obvious" error. See generally United States v. Olanor 507 U.S. 725, 732-736 (1993) (discussing "plain error" standard) . Petitioner's underlying claim is therefore poorly presented for this Court's review on the merits. 2. Petitioner also renews her contention that the district court erred in failing to give an "agency" instruction reflecting her argument that Hysom "used Nazaroff as a communication conduit in order to induce [her] to make a bribe overture. " Pet. 19. Two threshold problems with that argument make it unsuitable or this Court's review. First, although petitioner proposed various "agency" instructions to the district court, see, e.g Pet. App- F5-F6, "[s]he did not object to the court's refusal to instruct on that theory, " and the court of appeals deemed "groundless her assertion that the court did not allow her to object." Id. at A18. Thus , insofar as petitioner bases her "agency" claim on the ---------------------------------------- Page Break ---------------------------------------- 11 district court's supposed failure to incorporate it in the instructions (see Pet. 10-11, 22-23) , that claim is now properly reviewed only for plain error and, like the "positional predisposition" claim, is therefore an inappropriate candidate for this Court's review on the merits. See Pet. App. A18 (rejecting petitioner's claim on plain-error grounds). Second, the district court's jury instructions did in fact reflect petitioner's theory that Hysom "used Nazaroff as a communication conduit" (Pet. 19), and that may be why petitioner did not object to them. The instructions required the prosecution to prove "BEYOND reasonable doubt * * * that [petitioner] was not entrapped," and explained that "[a] person is entrapped when the person is not disposed to commit the crime before being contacted directly or indirectly by government agents and is induced by them to commit the crime charged." Pet. App. D1 (emphasis added). 4. Fairly read, that instruction required the jury to acquit petitioner if it found that she was not predisposed to commit the offense and that Hysom had ___________________(footnotes) 4 Petitioner herself had advocated the "directly or indirectly" language, in one of her proposed instructions: Entrapment is a defense in this case if you find that Greg Hysom originated the idea that he would "zero out" [petitioner's] tax liability in exchange for payment, and that, either directly or indirectly, he caused this idea to be implanted in [p [petitioner's] mind, and then induced her to commit the crime so that she could be prosecuted, and that she was not predisposed to do so prior to first being approached to do so by a government agent. Pet. C.A. E.R. 30 (emphasis added). ---------------------------------------- Page Break ---------------------------------------- 12 "indirectly * * * induced" her, through Nazaroff, to commit it. In convicting petitioner, the jury found, for factbound reasons, that Hysom had done no such thing. In short, the district court instructed the jury on the substance of the "agency" charge that petitioner presents in the petition, and its unchallenged decision to forgo the more detailed (and more pro-defense) 5. instructions requested by petitioner was not plain error. See, e.g., United States. v. Melvin, 91 F.3d 1218, 1224 (9th Cir. 1996) . Petitioner cites a variety of entrapment decisions that address loosely related "agency " issues; those decisions, she contends, reveal a circuit split on the issue presented here Pet. 18-22. That contention is without merit. Even if there were a circuit conflict with respect to some issue of agency petitioner is poorly positioned to invoke it, because she forfeited any "agency" challenge to the jury instructions by not objecting to them, and because she in fact received the substance of the "agency" instruction to which she now claims entitlement. ___________________(footnotes) 5 One of petitioner's typical proposed instructions asked the jury to consider her disposition "before Mr. Hysom caused Mr. Nazaroff to communicate [to petitioner] Mr. Hysom's offer he would 'zero out' [petitioner's] tax liability in exchange for a bribe." Pet. App. F4. That language incorrectly assumes as a fact the defense position that Hysom "caused" Nazaroff to communicate with petitioner, and adopts petitioner's view that the bribe "offer" came from the government, not from Nazaroff and petitioner. See also id. at F5 (petitioner's proposed instruction discussing "Mr Hysom's offer to zero out [petitioner's] tax liability"). The district court correctly declined to adopt that instruction, which "gives undue emphasis to defendant's version of-the facts." United States V. Jackson, 72 F.3d 1370(9th Cir.1995), cert. denied, 116 S.Ct.1546 (1996). ---------------------------------------- Page Break ---------------------------------------- 13 In any event, despite some divergence in reasoning, the decisions that petitioner cites do not squarely conflict with the holding below. 6. Nor could they have, since petitioner invokes those decisions to support an agency theory that the district court in fact submitted to the jury, and that the jury properly rejected on the facts of this case. Moreover, as the district court held in denying petitioner's post-trial motion for a new trial: The possibility of a bribe of a government agent by [petitioner] was not initiated by a government agent. It was initiated by [petitioner's] boyfriend, defendant Nazaroff. Nazaroff was not a government agent. The evidence reasonably suggests quite. the contrary; ___________________(footnotes) 6 For example, petitioner relies heavily on dicta in United States v. Washington, 106 F.3d 983 (D.C. Cir. 1997), petition for certiorari filed, No. 97-5423 (July 29, 1997) , but the court of appeals in that case addressed the agency issue presented there as a question of "derivative entrapment" (cf. Pet. App. A1l-A12 & n.3) and rejected the defendants' claims, See 106 F.3d at 994- 996. The other decisions that petitioner cites are similarly unavailing. Seer e.g, Hollingsworth, 27 F.3d at 1204 ("there is no defense of vicarious entrapment," and "derivative entrapment" claim is available only where "a private individual, himself entrapped, acts as an agent or conduit for governmental efforts at entrapment") (emphasis added); United States v. Pilarinos, 864 F.2d 253, 255-256 (2d Cir. 1988) (limiting earlier precedent on scope of "derivative entrapment" theory and rejecting specific entrapment claim) ; United States v. Jones, 839 F.2d 1041, 1054 (5th Cir.) (finding no basis for entrapment instruction for several reasons, "most important" of which was that, as in this case, "it was [the middleman] who contacted [the government informant] , not vice-versa"), cert. denied, 486 U.S. 1024 (1988); United States v. Anderton, 629 F.2d 1044, 1047 (5th Cir. 1980) (finding entrapment where -unlike here, see Pet. App. B6 (rejecting petitioner's claim that Hysom "pressured" Nazaroff) government agents first mentioned defendant's name to "ignorant pawn" and pressured "pawn" to recruit defendant into illegal scheme) ; V. United States v. Klosterman, 248 F.2d 191, 195-196 (3d Cir. 1957) (recognizing derivative entrapment defense where middleman was `himself entrapped) ; compare United States v. Beverly 723 F.2d 11, 12 (3d Cir. 1983) (entrapment defense "cannot be predicated on the actions of a party who has not agreed explicitly or implicitly to help the government make its case against the person who complains of entrapment"). ---------------------------------------- Page Break ---------------------------------------- 14 namely, that almost from the beginning, Nazaroff and [petitioner] were jointly considering how their respective tax problems might be solved once the revenue agent with whom Nazaroff was working was identified by Nazaroff as being potentially corrupt. Pet. App. 136. Given those facts, petitioner's "agency" claim could not have prevailed in any court of appeals, and her assertion of "geographic justice" (Pet. 23) is without merit. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted.. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General WILLIAM C. BROWN Attorney SEPTEMBER 1997