JAMES GRIMES, PETITIONER V. UNITED STATES OF AMERICA No. 90-5408 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 899 F.2d 731. JURISDICTION The judgment of the court of appeals was entered on March 29, 1990. A petition for rehearing was denied on May 11, 1990. The petition for a writ of certiorari was filed on August 8, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was entitled to an instruction on entrapment. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Missouri, petitioner was convicted of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to imprisonment for 27 months and a four-year period of supervised release. The court of appeals affirmed his conviction and sentence. 1. At trial, government witness Nancy Landon testified that, for a period of approximately one year in the mid-1980's, petitioner had sold her cocaine once or twice a week. In early 1987, the arrangement ended when Landon began to obtain cocaine directly from Len Anderson, who had been petitioner's supplier. Pet. App. A 731. In February 1988 Landon decided to cooperate with local law enforcement officers and with the DEA because she feared arrest for drug trafficking. In exchange for immunity from prosecution for her prior offenses, Landon agreed to participate in DEA undercover operations. Ibid. Between February and April 1988 Landon made several attempts to contact Anderson directly for cocaine purchases. All of her attempts were unsuccessful. Landon also tried to reach Anderson through petitioner. Those efforts also failed. DEA Agent Dean Duke then decided to change the strategy by having Landon attempt to buy cocaine from petitioner. Id. at 731-732. On May 25, 1988, Landon telephoned petitioner and offered to buy two ounces of cocaine for about $3,000. Landon told petitioner that the cocaine was for her friend, Jim (Agent Duke), who would accompany her to the place where the transaction would take place. Petitioner agreed to make the sale, and met Landon and Agent Duke at a pre-arranged location. From there, petitioner drove Landon to a residence, while Agent Duke followed in another car. Throughout the transaction, Landon wore a body transmitter to record her conversations. Pet. App. A 732; Gov't C.A. Br. 2-3. Petitioner first entered the residence alone, then reappeared and motioned for Landon to enter. In the kitchen Landon received two ounces of cocaine, which she tested by placing a small amount on her gums. She then returned to Duke, told him she had tested the cocaine, and got the purchase money from him. Although petitioner summoned her to return to the house, she refused to do so, and instead remained near petitioner's car outside. Petitioner and his supplier then emerged from the residence and entered petitioner's car with Landon. After the supplier placed the cocaine on the front seat, Landon gave petitioner the money and petitioner passed it to the supplier; Landon then took the cocaine and returned to Duke's car. Pet. App. A 732; Gov't C.A. Br. 3. 2. At trial, the government's proof consisted primarily of Landon's testimony and the tape recording of conversations between Landon and petitioner. The defense case consisted of testimony from Patricia Brewer, who stated that she had known petitioner for 20 years and had no knowledge of his involvement in drug trafficking. She also testified that she had introduced petitioner to Landon only after the period when, according to Landon's testimony, the drug sales by petitioner to Landon had occurred. Brewer conceded on cross-examination that she was petitioner's lover. Gov't C.A. Br. 4. The defense also called another woman, whose testimony that she had never been involved in drug transactions with Landon contradicted Landon's own testimony. Petitioner did not take the stand. Gov't C.A. Br. 4. During a charge conference petitioner submitted a proposed instruction on entrapment. The trial judge declined to give it on the ground that the evidence did not support the defense of entrapment. Gov't C.A. Br. 5. The defendant did not specifically object to this ruling. Gov't C.A. Br. 5-6. During deliberations the jury sent the judge a note inquiring, inter alia, "(w)hat constitutes entrapment." Pet. C.A. Br. Ex. 5. The judge persisted in his ruling that no entrapment instruction would be given, and the jury verdict was reached without consideration of that possible defense. 3. On appeal, petitioner claimed that the district court erred in refusing to instruct the jury on entrapment. The claim was rejected by the Eighth Circuit. The court of appeals referred to this Court's observations in Mathews v. United States, 485 U.S. 58, 63 (1988), that "a valid entrapment defense has two related elements: government inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Quoting Mathews, the court recognized that a defendant "is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment" (id. at 62), and that proof that the government "merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant such an instruction" (id. at 66). In its brief discussion of the entrapment issue, the court of appeals noted that "(n)othing in the record raises any question as to (petitioner's) predisposition to commit the crime." Pet. App. A 732. Moreover, the court observed that "the record (does not) suggest that (petitioner) resisted the idea of obtaining cocaine for Landon." Ibid. The court concluded that "because the government merely provided an opportunity to commit the crime, the district court did not err in refusing to give the entrapment instruction." Ibid. ARGUMENT Petitioner alleges that the Eighth Circuit erred in holding that he had to produce evidence on both government inducement and lack of predisposition sufficient to permit a reasonable jury to find entrapment before his defense could be submitted to the jury. /1/ Petitioner misreads the Eighth Circuit's decision in this case. Because the Eighth Circuit based its decision in part on the conclusion that petitioner had failed to produce evidence of government inducement -- a conclusion that alone would be sufficient to justify the denial of an entrapment defense in any circuit -- the court of appeals' decision was correct and this case would not provide an appropriate vehicle to address any of the asserted differences among the circuits claimed by petitioner. 1. Petitioner is mistaken in asserting that he "was required to produce 'sufficient' evidence on the issues of inducement and predisposition in order to be entitled to an entrapment instruction." Pet. 4 (emphasis in orginal). /2/ The court of appeals' entire discussion of petitioner's contentions concerning an entrapment defense consisted of its quotation of portions of this Court's opinion in Mathews to establish the legal contours of the entrapment defense, followed by this paragraph: Nothing in the record raises any question as to (petitioner's) predisposition to commit the crime. Nor does the record suggest that (petitioner) resisted the idea of obtaining cocaine for Landon. Accordingly, because the government merely provided an opportunity to commit the crime, the district court did not err in refusing to give the entrapment instruction. Pet. App. A 732. As is apparent from the quoted language, the court did not adopt any new standard to govern the availability of the entrapment defense. Instead, the court simply observed that the evidence in the case neither "raise(d) any question" concerning predisposition nor "suggest(ed)" that the government induced petitioner to commit the crime. Far from holding that petitioner had to produce evidence as to both prongs of the entrapment defense, the court held that his failure to make an issue of either prong of the defense was sufficient to preclude its submission to the jury. 2. Petitioner's failure to make a factual issue of government inducement would be sufficient to dispose of petitioner's claim in any circuit. Although there are differences between the formulations used by the courts of appeals in describing the prerequisites for submission of an entrapment defense to the jury, the cases cited by petitioner himself make clear that failure to show that "Government conduct created a substantial risk that an offense would be committed by a person other than one ready to commit it" precludes assertion of the defense. United States v. Martinez, 894 F.2d 1445, 1450 (5th Cir. 1990); accord United States v. Alston, 895 F.2d 1362, 1367 (11th Cir. 1990); United States v. Fedroff, 874 F.2d 178, 183 (3d Cir. 1989). It is well settled that a defendant must produce evidence of "something more than mere solicitation" before this standard is met. United States v. Marino, 868 F.2d 549, 553 (3d Cir.) (citing cases), cert. denied, 109 S. Ct. 3243 (1989); accord United States v. Ortiz, 804 F.2d 1161, 1165-1166 (10th Cir. 1986); United States v. Perez-Leon, 757 F.2d 866, 872 (7th Cir.), cert. denied, 474 U.S. 831 (1985); United States v. Johnson, 872 F.2d 612, 621 (5th Cir. 1989); United States v. Espinal, 757 F.2d 423, 425 (1st Cir. 1985); 1 E. Torcia, Wharton's Criminal Law 254-260 (14th ed. 1978 & Supp. 1989). In this case, petitioner does not challenge the conclusion of the court of appeals (Pet. App. A 732) that he did not "resist()" Landon's request to purchase cocaine, and that the government accordingly did not induce him to commit a crime he otherwise would not have undertaken, but merely "provided an opportunity" for petitioner to arrange the drug transaction. This fact-bound conclusion, which is fully in accord with settled law on the subject, provides a sufficient basis for the decision in this case. 3. As to predisposition, it is well-settled that there is no single factor whose presence is sufficient to create a factual issue of predisposition requiring decision by the jury. Moreover, although evidence of lack of prior criminal activity may be relevant, the most important consideration is "whether the defendant evidenced a 'reluctance to engage in the criminal activity that was overcome only by repeated government inducement.'" United States v. Marren, 890 F.2d 924, 930 (7th Cir. 1989) (citation omitted)); see e.g., United States v. Sotelo-Murillo, 887 F.2d 176, 181 (9th Cir. 1989) (same); United States v. Fedroff, 874 F.2d at 183 ("lack of prior illegal conduct alone will not satisfy the defendant's burden of production on non-predisposition"). Applying these standards, the court of appeals correctly found, on the basis of the particular facts of this case, that petitioner failed to introduce evidence that would make predisposition a factual issue requiring resolution by the jury. As the court observed, petitioner introduced no evidence suggesting that he was reluctant to engage in the criminal activity in this case. The only testimony relevant to the question of predisposition was the testimony of Brewer, who admitted a close personal relationship with petitioner. The fact that she had not known him to traffic in drugs, even if believed, is of little significance, given the generally clandestine and secretive nature of the drug trade. Nor, on the facts of this case, was Brewer's disputed testimony concerning the date when Landon first met petitioner sufficient alone to carry petitioner's burden of production, especially in light of the overwhelming and indisputable evidence that petitioner participated readily and actively in the drug transaction for which he was prosecuted. The other evidence petitioner discusses (Pet. 2, 8-9), while perhaps generally relevant in assessing the credibility of the government's principal witness, does not affirmatively support his contention of lack of predisposition. In short, the fact-bound conclusion of the court of appeals that petitioner did not introduce sufficient evidence to raise a question of predisposition was correct and fully in accord with settled legal principles. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General MERVYN HAMBURG Attorney NOVEMBER 1990 /1/ As the government argued in the court of appeals, petitioner failed to preserve his contention that the district court erred in refusing to instruct the jury on entrapment. See Gov't C.A. Br. 5-6. Although petitioner did submit a proposed instruction on entrapment, mere submission of an instruction does not satisfy the requirements of Fed. R. Crim. P. 30; petitioner did not object to the failure to give the instruction. See United States v. Kutrip, 670 F.2d 870, 876 (8th Cir. 1982). The court of appeals found it unnecessary to rule on the waiver issue. Pet. App. A 732 n.2. /2/ Petitioner curiously supports his contention that the Eighth Circuit adopted an incorrect legal standard by quoting that portion of the court of appeals' opinion htat in turn simply quoted portions of this Court's opinion in Mathews setting out established law concerning the entrapment defense. See Pet. 6.