CHARLES RELIFORD, PETITIONER V. UNITED STATES OF AMERICA No. 90-5198 In The Supreme Court Of The United States October Term, 1990 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 judgment order of the court of appeals (Pet. App. 1) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 2, 1990. The petition for a writ of certiorari was filed on July 20, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the government's undercover narcotics investigation of petitioner violated the Due Process Clause. 2. Whether there was sufficient evidence to support petitioner's conviction for conspiring to possess cocaine with intent to distribute it. 3. Whether the district court's failure to instruct the jury about the legal impossibility of conspiring with a government agent amounted to plain error. STATEMENT After a jury trial in the United States District Court for the Middle District of Florida, petitioner was convicted on one count of possessing more than 500 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), one count of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c), and one count of conspiring to possess more than five kilograms of cocaine with intent to distribute it, in violation of 21 U.S.C. 846. He was sentenced to a total term of 229 months' imprisonment, to be followed by a term of five years' supervised release. The court of appeals affirmed. 1. The evidence at trial showed that petitioner met Nelson Valdes in July 1988 at Valdes' Lincoln-Mercury dealership in Tampa, Florida. Petitioner, who was shopping for a new car, mentioned that someone owed him $17,000. Valdes realized that that amount was the current market price for a kilogram of cocaine and asked petitioner if that was the source of the debt. Petitioner denied that it was, but then asked Valdes if he knew where to obtain narcotics. Valdes, a former narcotics dealer, told petitioner that he had sources. Petitioner suggested that he would contact Valdes in the near future. Gov't C.A. Br. 3. Several days later, petitioner met with Valdes. Petitioner asked Valdes about his drug sources; Valdes explained that he could not deal in less than ten-kilogram quantities of cocaine. Petitioner replied that such terms would not pose any difficulties, but that he needed "to check with his people." Gov't C.A. Br. 4. Before petitioner contacted Valdes again, Valdes notified the Drug Enforcement Administration of his discussions with petitioner and agreed to work undercover for the DEA. /1/ Thereafter, in early August, petitioner met with Valdes and an undercover DEA agent posing as Valdes' supplier. At that meeting, petitioner told the agent that he was the supplier for a cocaine organization operating in Detroit and Chicago, and that he would like to buy as much as 37 kilograms of cocaine each month. /2/ Petitioner later delayed closing the cocaine deal, explaining to the agent that he had been unable "to contact any of his people up north" because of his son's accident. Gov't C.A. Br. 5. After trying unsuccessfully to contact the agent in late September and early October, petitioner managed to reach him on October 12. Petitioner told the agent that he wanted to buy one kilogram of cocaine. Petitioner, however, delayed the transaction, explaining that he was having problems waiting for his business partner, his nephew. On October 17, petitioner met the agent in a Tampa parking lot. Petitioner paid the agent $10,000 in cash in exchange for one kilogram of cocaine; he promised to pay the agent the remaining $4,000 within a week to ten days. Petitioner returned to his car, examined the cocaine, and placed it in his briefcase. DEA agents then arrested petitioner. A search of petitioner's car uncovered a fully loaded .357 revolver on the floorboard beneath the driver's seat and a loaded .38 revolver in the glove compartment. Gov't C.A. Br. 5-7. 2. In the court of appeals, petitioner contended that he had been entrapped and that the government's undercover investigation "was so overreaching and outrageous that due process principles prohibit his conviction." Pet. C.A. Br. 8; see id. at 8-14. Petitioner also claimed that the government had not presented sufficient evidence that he conspired with any individual who was not a government agent, Pet. C.A. Br. 15-16, and that the district court erred in not instructing the jury about the impossibility of conspiring with a government agent, Pet. C.A. Br. 27. /3/ The court of appeals summarily rejected each of petitioner's claims in an unpublished judgment order. Pet. App. 1. ARGUMENT 1. Petitioner contends (Pet. 5-6) that the government's undercover narcotics investigation of him violated the Due Process Clause. That claim is frivolous where, as here, the government launched an investigation only after receiving credible information that petitioner was trying to buy substantial quantities of cocaine for distribution; /4/ the record showed that petitioner was not entrapped into pursuing transactions to buy cocaine. See Hampton v. United States, 425 U.S. 484, 490-491 (1976) (plurality opinion); id. at 491 (Powell, J., concurring). 2. Petitioner also asserts (Pet. 6) that the government presented insufficient evidence that he conspired with any individual who was not a government agent. Here, the record showed not only that petitioner conspired with Valdes for a time before Valdes became a government agent, but also that petitioner -- by his own admissions -- conspired with "his people up north," Gov't C.A. Br. 5, including members of his family. In these circumstances, petitioner's claim fails. See, e.g., United States v. Elledge, 723 F.2d 864, 866 (11th Cir. 1984) (conversations between defendant and government informant are evidence of conspiracy between defendant and third party). 3. Finally, petitioner argues (Pet. 6) that the district court's failure to instruct the jury about the legal impossibility of conspiring with a government agent amounted to plain error. At trial, petitioner never contended that he could not be convicted of conspiracy because he had acted only with government agents, presumably because the evidence plainly showed that he had acted with others, namely, his business associates in Chicago and Detroit. See Gov't C.A. Br. 26. On this record, the district court's failure to give a superfluous instruction did not "undermine the fairness of the trial and contribute to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16 (1985). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General SEAN CONNELLY Attorney SEPTEMBER 1990 /1/ Before this time, the DEA had not been supervising Valdes' independent activities. Gov't C.A. Br. 4. /2/ At a later meeting, petitioner told the agent that he was actually distributing cocaine to family members in Chicago and Detroit. Gov't C.A. Br. 5. /3/ In addition, petitioner complained of prosecutorial misconduct, Pet. C.A. Br. 17-18, argued that the firearms conviction should be overturned, Pet. C.A. Br. 19-21, contended that the district court had misapplied the Sentencing Guidelines and that those Guidelines were unconstitutional, Pet. C.A. Br. 22-24, and claimed that the district court had erroneously instructed the jury about entrapment, Pet. C.A. Br. 25-26. The court of appeals rejected each of these contentions and petitioner has not sought further review of them. /4/ For that reason alone, petitioner errs in relying on United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), and United States v. Luttrell, 889 F.2d 806 (9th Cir. 1989), which, he asserts, preclude presenting "apparently innocent persons" with criminal opportunities, Pet. 5. In any event, the Ninth Circuit recently agreed to rehear Luttrell en banc, 906 F.2d 1384 (1990), and Twigg -- which has not been followed by other circuits -- has limited significance even within the Third Circuit, see, e.g., United States v. Jannotti, 673 F.2d 578, 610 & n.17 (3d Cir.), cert. denied, 457 U.S. 1106 (1982).