No. 97-5423 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 DWAYNE A. WASHINGTON, TROY E. TAYLOR, and JOHN C. HARMON, PETITIONERS v. UNITED STATES OF AMERICA 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 SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General RICHARD A. FRIEDMAN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioners were entitled to a derivative entrapment instruction on the ground that they were recruited to participate in illegal activity by a private individual who himself had been recruited by an undercover agent, even though that private individual selected the people he would recruit and formulated what he would tell them. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 No. 97-5423 DWAYNE A. WASHINGTON, TROY E. TAYLOR,. and JOHN C. HARMON, PETITIONERS v. UNITED STATES OF AMERICA 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 opinion of the court of appeals (Pet. App. la-36a) is reported at 106 F.3d 983. JURISDICTION The judgment of the court of appeals was entered on February 21, 1997. Pet. App. la. A petition for rehearing was denied on April 30, 1997. Pet. App. lb. The petition for a writ of certiorari was filed on July 29, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the District of Columbia, petitioners, Dwayne A. Washington ---------------------------------------- Page Break ---------------------------------------- 2 Troy E. Taylor, and John C. Harmon, all District of Columbia police officers, were convicted of conspiracy to commit bribery, in violation of 18 U.S.C. 371; conspiracy to distribute cocaine and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846; bribery, in violation of 18 U.S.C- 201; two counts of using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c); and, except for Harmon, attempted possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a) . Petitioners were each sentenced to concurrent terms of 292 months' imprisonment for the bribery and drug offenses and to consecutive terms of 60 and 240 months' imprisonment for the firearms offenses. The court of appeals affirmed, except that it set aside a portion of each petitioner's sentence and remanded for resentencing. 1. In December 1992, undercover FBI Agent Jose Olivier, posing as a member of a Miami-based narcotics organization, asked police officer Nygel Brown, who was suspected of corruption, to help him in illegal drug trafficking in the District of Columbia. Brown expressed interest and stated that he knew other potential recruits. On March 4, 1993, Brown introduced Olivier to Officer Sean Wiggins, an admitted former drug dealer who agreed to join the scheme. On April 25, 1993, Brown and Wiggins flew to Miami to meet Olivier's ostensible boss "Juan," who was also an undercover FBI agent. Pet. App. 8a. "Juan" told the officers that he intended to fly large ---------------------------------------- Page Break ---------------------------------------- 3 quantities of cocaine into the District of Columbia area, and that he wanted police officers to "protect" those shipments. "Juan" added that he wanted "dirty police officers, people who were used to protecting drugs. " On June 8 and 9, 1993, Brown and Wiggins introduced Olivier to Officers Ronald Bailey, William Hackney, and Kyle Davis. After meeting with Olivier individually and learning of the drug operation, each agreed to join. On July 13, 1993, the officers participated in the first of three staged drug runs and received thousands of dollars for their assistance. Pet. App. 8a. On August 9, 1993, Brown and Hackney introduced Olivier to Roland Harris and petitioned John Harmon, both D.C. police officers. After making sure that Harris and Harmon were interested, Olivier asked each whether he had had any prior illegal experience in the drug world. Both officers confirmed that they had. Harmon stated that he had sold drugs with Hackney and that he had done "rips" on the street: i e he had picked up drugs or money dropped by fleeing dealers. Olivier explained that, on the planned drug runs, the officers would be expected to drive behind the couriers and "use their badges" if necessary. Neither Harris "nor" Harmon expressed any reluctance to join the scheme, and, on August 10, 1993, both joined in the second of the three runs. Harmon received $2,000 for his role. Pet. App. 8a- 9a. On August 25, 1993, Olivier told Hackney and Brown that "Juan" wanted to set Up a second team, and he asked Hackney to ---------------------------------------- Page Break ---------------------------------------- 4 recruit as many new officers as he could. Hackney agreed. On September 16, 1993, he and Brown brought four officers, including petitioner Dwayne Washington, to meet Olivier. Another officer, petitioner Troy Taylor, was also invited, but he could not attend because he was working. After Olivier had presented his standard introduction and questions, Washington told him not only that he had worked in vice and was used to being around drugs, but that he had stolen drugs from street dealers because they ain't gonna say nothing. " Washington also told Olivier that he was comfortable with the arrangement that Hackney had proposed. Pet. App. 9a. On October 4, 1993, petitioner Taylor was introduced to Olivier. After Olivier gave his standard pitch, Taylor agreed to participate in the scheme. Taylor described his former experience "running the coke" and "shipping it out to the little people" for a local drug dealer. Although he claimed never to have killed anyone, he said that he had shot people in the course of his illegal activities and that he would "take somebody's life, point-blank, " if things went wrong. He also said that he knew a "hit man" if Olivier ever had "any problems with anybody. " The next day, Washington and Taylor joined in the third and final drug run. Pet. App. 9a. On December 14, 1993, petitioners Taylor, Washington, and Harmon, along with eight other officers, assembled in two hotel rooms with Olivier to prepare for the cocaine shipment scheduled for that day. While they were planning their runs, FBI agents ---------------------------------------- Page Break ---------------------------------------- 5 and District of Columbia police officers rushed in and arrested petitioners along with their co-conspirators. Pet. App. 9a. 2. At trial, the district court gave the jury comprehensive instructions on the entrapment defense, but added: "it is not a defense to the" crimes charged that the defendants were induced to commit the crimes by their co-conspirators. " Pet. App. 10a. Petitioners objected to that instruction and to the district court's refusal to include a special charge on "derivative entrapment, " a charge that would have instructed the jury to acquit petitioners if it found that they had been entrapped by an unwitting third party who was himself working at the direction of a government agent. Ibid 1 3. The court of appeals rejected petitioners' derivative entrapment claim. The court first -observed that "all circuits appear to be in agreement that persuasion, seduction, or cajoling by a private party does not qualify as entrapment, * * * and some circuits appear to have rejected the derivative entrapment defense in all its forms." Pet- App. 11a. "Nevertheless, " the court continued, "a number of circuits have recognized the defense under some circumstances when government agents act through private citizens." Ibid. (internal quotation marks omitted) . The court held that, as a general matter, "a limited form of the 'derivative entrapment' theory is recognized in this ___________________(footnotes) 1 As the court of appeals observed, there was some dispute as to whether petitioner Taylor was recruited by Hackney or by Harmon, who was one step further removed than Hackney from government agent Olivier. See Pet. App . 10a n.3. ---------------------------------------- Page Break ---------------------------------------- 6 circuit, and extends to cases in which unwitting intermediaries - - at the government's direction deliver the government's inducement to a specified third party." Ibid On the facts of this case, however, the panel held that the district court had not erred in denying petitioners' request for a derivative entrapment instruction. First, the court addressed whether petitioners were entitled to such an instruction on the facts that they themselves had alleged at trial and on appeal. According to petitioners: The three defendants herein had all been recruited by Hackney. Each officer testified, with some variation, that Hackney had approached them under the same pretext a Miami businessman who carried lots of money and needed protection while in the area was looking for officers to work private security, a scenario consistent with what Hackney, in his [resentence report] , claimed he had been told by Brown. Based on that testimony, the jury could have concluded that Hackney duped the defendants into meeting with Olivier, by causing them to believe that the work for Olivier involved legal, albeit unauthorized, private security work. Pet. App. 12a (quoting Joint Brief for Appellants at 58-59 (footnotes and citations omitted)). The panel explained that, if those facts were accepted as true, and if Hackney had in fact "modified the alleged inducement, telling the [petitioners] that they would be engaging in legitimate private security work in exchange for $2000 per run, then he would have deviated from the government's original inducement (offering money in exchange for drug-running ), and a derivative entrapment instruction would not be supported by the evidence." Pet. App. 13a. Put another way, "[a]ssuming that [petitioners] did not know they were to commit a ---------------------------------------- Page Break ---------------------------------------- 7 crime until after they met with Olivier himself, then the only issue for-the jury would be whether Olivier himself entrapped them. But the jury was instructed on the issue of direct entrapment[.] " Ibid The court then "gave [petitioners] every benefit of the doubt" and assumed that contrary to their own account they had been "aware from the outset that they would be working for a `drug dealer.'" Pet. App. 13a. The court held that, even under that set of facts, the district court would not have erred in denying a derivative entrapment instruction because "Olivier did not designate particular police officers to whom the intermediaries should offer the $2000 incentive per drug run. Rather, Olivier instructed Hackney and Brown more generally to offer the incentive to undesignated cops whom they knew to be corrupt or 'dirty.'" Ibid The court held that "[s]uch a general instruction by a government agent to an intermediary is not sufficient to support a derivative entrapment defense, " because "[t]he defense should not apply if, in response to pressure put on him by the government, the unknowing intermediary on his own induces the defendant to engage in criminal activity. " Id. at 14a (internal quotation marks omitted). The court thus concluded that petitioners "were not entitled to a derivative entrapment defense under any possible version of the facts that the jury could have found." Ibid 2 ___________________(footnotes) 2 The panel also rejected petitioners' arguments, not reasserted here, that the general entrapment instructions were deficient, Pet. App. 14a-16a; that other jury instructions were ---------------------------------------- Page Break ---------------------------------------- 8 ARGUMENT Petitioners argue (Pet. 9-19) that this Court should grant certiorari to resolve a conflict among the courts of appeals concerning the derivative entrapment defense. Although the courts have indicated some disagreement concerning the availability and scope of that defense, this case does not clearly implicate any conflict on those issues: even if we give petitioners the benefit of the doubt on the facts presented here, it is unlikely that their argument for a derivative entrapment instruction would have prevailed under the law of any circuit. The entrapment defense rests on the proposition that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense but was induced to commit them by the Government." United States v. Russell, 411 U.S. 423, 435 (1973) (emphasis added). As the court of appeals correctly observed, "all circuits appear to be in agreement that persuasion, seduction, or cajoling by a private party does not qualify as entrapment." Pet. App . 11a (internal quotation marks omitted). Similarly, most courts that have addressed the issue have determined that, when an intermediary recruited by an undercover agent has no knowledge that he is operating at the behest of a government ___________________(footnotes) deficient, Pet. ADD . 20a-26a, 28a-31a: that the district court erred in various evidentiary rulings, pet. App. 16a-20a, 26a-28a; and that the court erred in various sentencing determinations, Pet. App. 33a-36a. The court vacated a portion of each petitioner's sentence, and remanded for resentencing. Pet. App. 31a-33a. ---------------------------------------- Page Break ---------------------------------------- 9 agent, the intermediary cannot himself be considered a government agent, and those whom he recruits for criminal activity cannot generally claim to have been entrapped. See, e.g. United States v. Martinez, 979 F.2d 1424, 1432 (10th Cir.. 1992) (discussing case law) , cert. denied, 507 Us. 913, 507 Us. 1022 (1993); United States v. Thickstun, 110) F.3d 1394, 1398-1399 (9th Cir. 1997), cert. denied, No. 97-5097 (Oct. 14, 1997) ; United States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983) ; United States v. Dove, 629 F.2d 325, 329 (4th Cir. 1980). Like the D.C. Circuit in this case, however, several other courts of appeals have recognized a limited defense of derivative entrapment in circumstances where, among other things, a defendant is recruited into a criminal scheme by a private party who is unwittingly acting under the direction of an undercover government agent. See United States v. Toner, 728 F.2d 115, 126 (2d Cir. 1984) (recognizing limited availability of derivative entrapment defense but rejecting specific entrapment claim) ; United States v. Pilarinos, 864 F.2d 253, 255-256 (2d Cir. 1988) (same); United States v. Anderton, 629 F.2d 1044, 1047 (5th Cir. 1980).3 Also like the D.C. Circuit (see Pet. 13-14), however, ___________________(footnotes) 3 The courts have employed varying definitions of the term "derivative entrapment." Unlike the court of appeals in this case (see Pet. App. 11a-12a) , some courts have confined the use of that term to circumstances in which the private party inducing others to commit criminal activity was himself entrapped. See, e.g., Thickstun, 110 F.3d at 1399 & n.3; United States v. Hollingsworth, 27 F.3d 1196, 1204 (7th Cir. 1994) (en bane) (noting, in dicta, that "there is no defense of vicarious entrapment, " and that a derivative entrapment claim is available only where "a private individual, himself entrapped, acts as an agent or conduit for governmental efforts at entrapment") ---------------------------------------- Page Break ---------------------------------------- 10 those courts appear to confine the scope of any derivative entrapment defense to cases in which the government targeted a particular individual and used an unwitting middleman strictly as a conduit to entice that individual into a criminal scheme; to our knowledge, those courts have not reversed a conviction for failure to give a derivative entrapment instruction where the middleman operated as an independent actor using his own initiative to help develop the scheme. See, e.g., Anderton, 629 F.2d at 1047 (finding entrapment where., unlike here, government agents first mentioned defendant's name to "ignorant pawn" and pressured pawn to recruit defendant into illegal scheme); see also United States v. Hollingsworth, 27 F.3d 1196, 1204 (7th Cir. 1994) (en bane) (derivative entrapment defense is available only where middleman serves as "an agent or conduit for governmental efforts at entrapment") ;. Pilarinos, 864 F.2d at 256 (denying derivative entrapment claim and noting that such claims are unavailable "where a government agent `induces a middleman to commit a crime, and the middleman, responding to the pressure upon him, takes it upon himself to induce another person to participate in the crime'") (quoting Toner, 728 F.2d at 127).4 ___________________(footnotes) (emphasis added). Petitioners do not allege that the private parties who recruited them into their illegal scheme were themselves entrapped. See Pet. 15 n.9. 4 Accord Pet. App. 14a ("[t]he defense should not apply if, in response to pressure put on him by the government, the unknowing intermediary on his own induces the defendant to engage in criminal activity') (internal quotation marks omitted) . Citing United States; v. Valencia, 645 F.2d 1158, 1168-1169 (2d Cir. 1980), the court of appeals suggested that the Second Circuit's approach to derivative entrapment is "potentially ---------------------------------------- Page Break ---------------------------------------- 11 For that reason, petitioners' claim of derivative entrapment would likely have been rejected in any of the circuits that have recognized a derivative entrapment defenses Even under the version of the facts most helpful to that claim a version that petitioners themselves repudiated on appeal (see Pet. App. 12a- 13a) but questionably claim that they may assert now (see Pet. 17-18). Olivier and "Juan" did not employ Hackney and Brown as mere conduits to induce designated individuals to join the conspiracy; Hackney and Brown used their own discretion to recruit only those individuals, like petitioners, "whom they knew to be corrupt or `dirty.'" Pet. App. 13a. The court of appeals correctly held that no derivative entrapment instruction was warranted in those circumstances, and petitioners cite no authority to the contrary. ___________________(footnotes) broader" in application than its own. Valencia does not support petitioner's argument here, however. In that case, the defendant claimed that a government agent (an informant) had "continually `push[ed] ` and `coerc[ed] ` [the defendant's wife] to sell cocaine, " id. at 1168, and that "the agent's inducement was directly communicated" by the wife to the defendant himself, id at 1169. Although the Second Circuit stated that such facts could support an entrapment claim, see id. at 1168-1169, petitioner has not predicated his entrapment claim on an argument that the government "coerced" Hackney and Brown to engage in criminal activity or to recruit others. See note supra; see also United States v. Valencia, 677 F.2d 191 (2d Cir. 1982) (affirming defendant's conviction after remand) . ___________________(footnotes) 5 Petitioners suggest that Thickstun would have been decided differently "under the rule of the instant Case." Pet. 14. That is not correct. Fairly read, the jury instructions in Thickstun indicated that the defendant was entitled to an acquittal if the jury found that government agents had "indirectly * * * induced" her to commit a crime- See U.S. Br. in Opp. in No. 95-5097, at 11-12 (filed Sept. 3, 1997). ---------------------------------------- Page Break ---------------------------------------- 12 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 RICHARD A. FRIEDMAN Attorney OCTOBER 1997