JESUS SUD, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7561

   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 Eleventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-2) is reported at
889 F.2d 1029.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 6,
1989.  A petition for rehearing was denied on February 22, 1990.  The
petition for a writ of certiorari was filed on April 19, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the government's conduct was so outrageous that it
violated petitioner's right to due process.

   2. Whether the evidence was sufficient to support petitioner's
conviction for carrying a firearm during and in relation to a drug
trafficking crime.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted of conspiring
to possess more than five kilograms of cocaine with intent to
distribute it, in violation of 21 U.S.C. 846;  possessing more than
five kilograms of cocaine with intent to distribute it, in violation
of 21 U.S.C. 841(a)(1);  and carrying a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. 924(c)(1).  /1/ The
district court sentenced him to concurrent terms of ten years'
imprisonment on the conspiracy and possession counts, to be followed
by a five-year term of supervised release, and to a consecutive
five-year term of imprisonment on the firearm count.  The court of
appeals affirmed.  Pet. App. 1-2.  /2/

   1. Petitioner and co-defendant Rivera were Miami police officers.
Co-defendant Santiago was a civilian security guard at a public high
school.  Gov't C.A. Br. 3.  In the summer of 1987, petitioner and
Rivera became friendly with Stephen Maldonado, a security director at
a residential complex.  The officers introduced Maldonado to Santiago,
whom Maldonado then hired as a part-time security guard at the
residential complex.  Over the next few months, Rivera repeatedly
discussed with Maldonado his desire to steal drugs and sell them.
Gov't C.A. Br. 3-4.

   On October 1, 1987, Maldonado met with Sergeant Arthur Serig of the
Miami Police Department's internal security section, provided him with
information concerning Rivera and petitioner, and subsequently agreed
to act as a confidential informant.  Sergeant Serig told Maldonado to
avoid entrapping the officers and to wait for them to contact him.
Gov't C.A. Br. 4-6.

   On October 3, 1987, Santiago, who saw Maldonado every day at work,
told Maldonado to call Rivera.  Shortly thereafter, Maldonado met with
Rivera and Santiago;  Santiago initiated a conversation with Rivera
about doing "rip-offs" of cocaine dealers, mentioned specific dealers
as potential targets, and sought Maldonado's assistance in the
proposed rip-offs.  Gov't C.A. Br. 6-7.

   On October 13, 1987, again at Santiago's direction, Maldonado
telephoned Rivera, who wanted to meet to plan cocaine rip-offs.
Rivera said that petitioner would attend the meeting to participate in
the planning.  Three days later, Maldonado met with petitioner and
Rivera, and discussed the rip-offs with them.  During the
conversation, Maldonado brought up the "hotel scenario," an
alternative developed by Sergeant Serig for use if it appeared that
petitioner, Rivera, and Santiago were about to commit a theft.  The
scenario was designed to divert the conspirators from civilian
targets, while allowing them to proceed with their plans in a
controlled environment.  As part of the scenario, Maldonado, who also
worked at a Days Inn Hotel, said he had repeatedly seen a person use
the hotel to drop off packages that someone else would pick up.  The
group speculated that the packages contained cocaine, cash, or
jewelry.  After discussing the hotel scenario, petitioner threatened
to shoot Maldonado if he informed on them and they went to jail.
Gov't C.A. Br. 7-9.

   During a series of subsequent conversations, the conspirators and
Maldonado discussed several rip-off schemes, including a drug rip-off
within the hotel scenario proposed by Maldonado.  At one meeting,
petitioner asked Maldonado to get the license plate number of the
vehicle used by the potential rip-off target of the hotel scenario so
that petitioner could have the police department run a check on it.
Petitioner spoke of other possible scenarios, and suggested getting
rid of stolen drugs in New York or the Northeast where they would
command a higher price.  Gov't C.A. Br. 9-11.  Petitioner again
threatened Maldonado that, if he informed on the group, petitioner
would kill him or someone in his family.  Gov't C.A. Br. 10.

   On October 25, 1987, Maldonado telephoned petitioner pursuant to
Rivera's directions.  After asking Maldonado about the hotel scenario,
petitioner stated his desire to begin surveillance of a suspected drug
courier known as "Miss America." The next day, when Maldonado
contacted petitioner, again pursuant to Rivera's instructions,
petitioner reiterated his intent to begin surveillance of "Miss
America." Sergeant Serig told Maldonado to proceed with the hotel
scenario in order to avoid the danger to civilians that an attempt to
rip off "Miss America" would pose.  Gov't C.A. Br. 11-12.

   On October 27, 1987, Maldonado telephoned the conspirators and told
them that the suspected drug dealer would be at the Days Inn Hotel
three days later.  Petitioner was happy at the news, and said that the
group had to meet for further planning.  The next day, Maldonado met
with petitioner and his co-conspirators at a park and discussed the
hotel scenario.  The group determined that petitioner, Rivera,
Santiago, and Fernandez all would carry their guns.  After more
meetings and conversations, the group agreed to meet on October 30,
prior to the planned rip-off, at a restaurant near the hotel.  Rivera
told petitioner to bring a police radio with him to check on the
license plate number of the rip-off target's vehicle to see if the
target was an undercover agent.  Gov't C.A. Br. 12-14.

   The meeting took place as planned, and the group discussed their
assignments during the theft attempt.  Petitioner and co-defendant
Fernandez were to remain in petitioner's car in the hotel garage to
conduct surveillance;  Santiago and Rivera planned to enter the drug
dealer's room with a key obtained by Maldonado.  All the men except
Maldonado were armed.  Petitioner, touching his gun, expressly told
the group that he had his weapon.  Petitioner also said that Fernandez
had his gun in petitioner's car.  Rivera produced a weapon for
Maldonado.  Petitioner told Maldonado to call him on his beeper when
the drug dealer arrived.  Gov't C.A. Br. 14-15.

   After the meeting, Maldonado went to the Days Inn.  Shhortly
thereafter, petitioner and Fernandez twice drove past the hotel in
petitioner's car.  An undercover agent posing as the drug dealer then
arrived at the hotel and took a duffel bag containing six kilograms of
cocaine to Room 406.  Maldonado telephoned petitioner, summoning the
conspirators and giving them a key to Room 406.  Earlier that day,
petitioner had checked out a police radio from the Miami Police
Department.  He now radioed the police to request a check on the
license plate number of the undercover agent's car.  After the agent
left the hotel in the car, Santiago and Rivera went towards Room 406.
Before going in, the men approached Maldonado and told him to clear
the pool area of people;  Rivera then instructed Santiago that they
would go through with the plan.  After Maldonado cleared the pool
area, Santiago unlocked and opened the door, and he and Rivera entered
the room.  When they emerged approximately one minute later, Santiago
was carrying a bag that contained six kilograms of cocaine.  The four
co-conspirators were immediately arrested.  At the time of
petitioner's arrest, he was carrying a loaded .380 caliber
semi-automatic pistol.  Gov't C.A. Br. 15-17.

   2. On appeal, petitioner argued that the conduct of the government
was so outrageous that it violated his due process rights.  /3/ The
government responded (Gov't C.A. Br. 19, 20-26) that it had acted
reasonably and prudently by providing a controlled scenario in which
the conspirators could carry out their plan to steal drugs without
risk of harm to their intended victims or others.  The government
added (Gov't C.A. Br. 26) that making the six kilograms of cocaine
available for the conspirators to steal was not improper because the
conspirators had spoken often of their desire to steal cocaine, and
could have left all or some of the drugs behind in Room 406 if they
did not want to steal them.  The court of appeals rejected the due
process argument as one of the several arguments raised below that
were "clearly without merit" and therefore not "worthy of extended
discussion." Pet. App. 1 n.1.

   Petitioner also contended that the evidence was insufficient to
support his conviction under 18 U.S.C. 924(c)(1) because as a police
officer he was instructed to carry a firearm with him at all times.
The court of appeals rejected this argument (App., infra, 3-4), ruling
that Section 924(c)(1) was clearly intended to reach the armed police
officer who commits a crime, and that the evidence presented at trial
was sufficient for a jury to conclude that petitioner and his
co-conspirators were carrying firearms with the intent to use them if
necessary during the drug theft.

                               ARGUMENT

   1. Petitioner renews the contention (Pet. 15-27) that the
government's conduct was so outrageous that it violated his due
process rights.  This same contention was raised by petitioner's
co-defendant, Santiago, in his petition for certiorari;  this Court
has already examined the issue and determined that it does not warrant
further review.  See Santiago v. United States, cert. denied, No.
89-7255 (June 25, 1990).  For basically the same reasons stated in our
brief in opposition in that case, petitioner's due process claim is
likewise without merit.  /4/

   This Court has stated that it is conceivable that in some case the
provocative conduct of law enforcement agents could be so extreme that
fundamental principles of due process would bar a criminal prosecution
and conviction, even thought the defendant was predisposed to commit
the offense charged.  See United States v. Russell, 411 U.S. 423,
431-432 (1973).  Such a defense, however, would be available only in
the most outrageous circumstances.  United States v. Tobias, 662 F.2d
381, 387 (5th Cir. 1981), cert. denied, 457 U.S. 1108 (1982);  see
United States v. Savage, 701 F.2d 867, 868 (11th Cir. 1983) (quoting
Hampton v. United States, 425 U.S. 484, 495 n.7 (1976) (Powell, J.,
concurring)).  To establish that "due process defense," a defendant
would have to show that the conduct in question violates "that
'fundamental fairness, shocking to the universal sense of justice,
mandated by the Due Process Clause of the Fifth Amendment.'" Russell,
411 U.S. at 432 (citation omitted);  accord Tobias, 662 F.2d at 386.

   The Third Circuit has ruled that the government violates the
"fundamental fairness" required by the Due Process Clause when it
instigates a criminal activity, provides the place, the equipment, the
supplies, and the expertise, and manages the entire operation with
only minimal assistance from a defendant.  United States v. Twigg, 588
F.2d 373, 380-381 (3d Cir. 1978).  /5/ It is undisputed, however, that
the government's infiltration of a criminal activity, including
efforts in which agents participate in and supply elements to an
illegal operation, is a legitimate investigative technique.  Russell,
411 U.S. at 432;  Tobias, 662 F.2d at 386;  United States v. Puett,
735 F.2d 1331, 1335 (11th Cir. 1984).

   Thus, in Tobias, even though the government had suggested that the
defendant manufacture PCP and, through a dummy company, had arranged
to supply the defendant with all that he needed to produce the drug,
prosecution was not barred.  The defendant, who had originally wanted
to manufacture cocaine and repeatedly telephoned the dummy company for
advice on PCP production, was an active and enthusiastic participant
in the offense.  662 F.2d at 383-384, 387;  see also, e.g., Puett, 735
F.2d at 1335 (government's asserted misconduct no bar to prosecution
where defendant was predisposed to commit offense and played a
significant role in the criminal enterprise);  Kett v. United States,
722 F.2d 687, 689-690 (11th Cir. 1984) (government's conduct did not
violate due process where defendant initiated contact with government
informant and was predisposed to commit offense);  United States v.
Gray, 626 F.2d 494, 498-499 (5th Cir. 1980) (same, where government
agents not only suggested drug smuggling scheme, but also furnished
defendants with repair services, an airstrip, and a crew), cert.
denied, 449 U.S. 1091 (1981).

   Petitioner has conceded his predisposition to commit the charged
offenses (see Gov't C.A. Br. 20 n.3), and he played an active,
significant part in their commission.  Conversely, the government's
proposal of the hotel scenario was a prudent response to the
likelihood that petitioner and his co-defendants, if not diverted from
their original criminal intentions, would commit crimes of violence
posing a threat of death or serious bodily injury to innocent
civilians.

   Specifically, petitioner was an active member of the conspiracy,
meeting frequently with his co-conspirators and Maldonado to discuss
and plan cocaine rip-offs.  He twice threatened to kill Maldonado or a
member of his family if Maldonado informed on the conspirators.
Through his stated desire to begin surveillance on the suspected drug
courier "Miss America," he triggered the execution of the hotel
scenario.  He was pleased when Maldonado informed him that the hotel
scenario could shortly be carried out, and supported further planning
to prepare for it.  He came armed to the restaurant meeting on the day
of the planned rip-off, and instructed Maldonado on the role he was to
play in the enterprise.  With another co-conspirator, he surveyed the
planned rip-off scene twice before the undercover agent arrived at the
hotel and was the person whom Maldonado called to summon the
conspirators to the hotel.  Petitioner had earlier asked Maldonado to
obtain the license plate number of the potential target's car;  on the
day of the arrest he brought a police radio and used it to check on
the license plate number of the undercover agent.  He continued to
conduct surveillance of the hotel as Santiago and Rivera entered Room
406, until the time of his arrest.  These circumstances demonstrate
without question that petitioner actively and willingly participated
in the charged offenses;  the government merely channeled petitioner's
criminal activities into a controlled environment.  /6/

   2. Petitioner's challenge (Pet. 28-33) to the sufficiency of the
evidence supporting his conviction under 18 U.S.C. 924(c)(1) is
likewise without merit.

   Petitioner concedes (Pet. 28) that he was carrying a firearm during
the commission of the drug trafficking crime of which he was
convicted.  The court of appeals correctly rejected his contention
(see Pet. 29, 33) that his status as a Miami police officer excused
any apparent offense.  The legislative history of the applicable
version of 18 U.S.C. 924(c)(1) makes it clear that

      persons who are licensed to carry firearms and abuse that
      privilege by committing a crime with the weapon, as in the
      extremely rare case of the armed police officer who commits a
      crime, are as deserving of punishment as a person whose
      possession of the gun violates a State or local ordinance.

S. Rep. No. 225, 98th Cong., 1st Sess. 314 n.10 (1983).  Thus, as the
court of appeals accurately noted (App., infra, 3), the only issue in
the present case was "whether there was sufficient evidence for the
jury to find that (petitioner) intended or was ready to use the gun,
if necessary, either during the commission of the offense or in making
his escape."

   The evidence showed that petitioner and his co-conspirators were
attempting to commit a rip-off of drugs or jewelry.  At a meeting
several days before the commission of the offense, they had determined
that they should carry weapons with them.  On the day of the offense,
all were in fact armed.  Petitioner explicitly reassured his
associates that he had his gun with him, and further told them that
co-defendant Fernandez had his weapon in petitioner's car.  The
conspirators produced a gun for Maldonado as well.  In the face of
these circumstances, as well as petitioner's repeated threats to kill
Maldonado if he informed on them, petitioner's claim (Pet. 30) that he
sought to avoid confrontation is unconvincing.  Rather, a reasonable
jury could well conclude that petitioner intended to use the firearm
he was carrying if it became necessary during the offense.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   THOMAS M. GANNON

      Attorney

   JUNE 1990

   /1/ Petitioner's co-defendants, Joe Santiago and Ruben Rivera, were
also convicted of conspiracy, cocaine possession, and firearms
charges.  Pet. App. 1.  The case of a third co-defendant, Jose Angel
Fernandez, was severed at trial from that of the other three
defendants.  Gov't C.A. Br. 2 n.1.  This Court recently denied a
petition for certiorari filed by co-defendant Santiago which raised
the same due process contention as does petitioner here.  Santiago v.
United States, cert. denied, No. 89-7255 (June 25, 1990).

   /2/ A complete copy of the court of appeals' opinion is appended to
this brief.  App., infra, 1-4.

   /3/ Petitioner and his associates conceded that they were
predisposed to commit the offenses of which they were convicted.
Accordingly, they did not assert a traditional entrapment defense.
Gov't C.A. Br. 20 n.3.

   /4/ We are serving a copy of our response to Santiago on counsel in
this case.

   /5/ But see United States v. Beverly, 723 F.2d 11, 12 (3d Cir.
1983) (limiting Twigg).

   /6/ The court of appeals correctly rejected petitioner's related
claim, renewed here (Pet. 23-27), that the government improperly made
an inordinate amount of cocaine, six kilograms, available for the
conspirators to steal.  Petitioner and his co-conspirators had
repeatedly stated their desire to steal cocaine.  If they had not
intended to steal the six kilograms of cocaine in Room 406, they could
have left some or all of the drug behind.

   APPENDIX