UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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Nos. xxxxxxxxxx



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UNITED STATES OF AMERICA,



Plaintiff-Appellee,

v.



xxxxxxxxxxxxxxxxxxxx



Defendants-Appellants.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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BRIEF FOR APPELLANT GREGORY xxxxxxxx



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JURISDICTION



The district court had jurisdiction under 18 U.S.C. 3231. This Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the court erred in instructing the jury that pressure from a source other than law enforcement is not "inducement."

II. Whether the court's refusal to exclude from evidence Mr. xxxxxxxx's boasts to the undercover officer about various other crimes he had supposedly committed prejudiced his entrapment defense where the government never contended those claims were true but then argued them for their truth to prove Mr. xxxxxxxx's predisposition to launder money.

III. Whether an entrapment defense is legally incompatible with "acceptance of responsibility."

STATUTES AND RULES

Pertinent statutes and rules are set forth in the Addendum.

STATEMENT OF THE CASE (1)

Mr. xxxxxxxx was convicted of money laundering in connection with his sale of three cars to undercover officer Larry Best -- an Infiniti Q-45 on April 30, 1991 (Deal 2 -- Count Three), a Nissan 300ZX on September 5, 1991 (Deal 3 -- Count Four), and a Jaguar Sovereign on October 1, 1991 (Deal 4 -- Count Five). At trial, Mr. xxxxxxxx's counsel affirmatively challenged the charge of conspiracy in Count One, and Mr. xxxxxxxx was acquitted of that offense. As to Counts Three, Four and Five, while Mr. xxxxxxxx did assert his right to have a jury find that the government proved each element of money laundering beyond a reasonable doubt, he did not affirmatively contest any of those elements. Rather, unlike the other ten defendants, Mr. xxxxxxxx's sole defense to the substantive offenses was entrapment.

1. The Government's Use of Paul Smyth to Induce Mr. xxxxxxxx

In Deal 1, on referral from Marion Ennis of Rosenthal Toyota, Best bought a Nissan Maxima from salesman Willie Gladden. During that deal, Best saw Gladden go speak with Paul Smyth, the General Manager of Rosenthal Nissan/Mazda (11/2:118-119). Gladden told Best that Smyth was "top brass" (GXOneTR-7:4).

Deal 2 began when Best called Ennis a week later, on April 29, 1991, and said he wanted to buy an Infiniti (GXTwoTR-1:2-3) (emphasis added):

Ennis: Okay, check this out, before you even go any further . . . We had an awards dinner last night right. . . . I met the Vice President of the Nissan store, Right? . . . He knew about your deal. Okay. That ain't no problem, he told me, man, from now on, anything you want, let him know, he'll take care of it, he'll handle it. I'm talking the Vice President, my brother.

Best: Who is these people?

Ennis: I'm with the insides boy.

Best: Who is these people?

 

Ennis: His name is Paul Smyth.

Ennis explained that he had complained to Smyth about not getting his $100 referral fee on the Maxima and Smyth had said he would take care of it (GXTwoTR-1:3-4) (emphasis added):

Ennis: . . . And the dude said look, from now on he gave me his card and everything, said if you got a problem, don't even, don't even go through none of the managers no more. You got somebody you send them to me, and I'll make sure they're taken care of and I'll make sure you happy. . . .  . .



Best: Okay, well since he up on me; I saw something next door at that Infiniti dealership. . .



Ennis: Even though he's in charge of the Nissan store, all Paul would have to do is make a call next door, you understand what I'm saying? He, he's got just that much pull.



Best: Okay, well I need somebody next door at the Infiniti dealership.

A few hours later, Best called Ennis and had him make a three-way conference call to Smyth, without Smyth's knowledge that Best was on the line (11/9:29-30). Ennis told Smyth that the "same guy" he had referred to buy the Maxima wanted to buy an Infiniti "strictly cash" to be "handled the same way that it was handled at Nissan" (GXTwoTR-2:4-5). Smyth said to "tell him to come over and see me and I'll hook him up" (GXTwoTR-2:5-6).

The next day, Best went to the Nissan dealership, where he told Smyth which Infiniti he wanted, that he wanted to buy it "cash," the same way he had bought the Maxima, with "[n]o reflections on me" (GXTwoTR-5:2-3). When Best asked how the "paperwork" would be done -- whether Smyth would "get a name for me or we gonna use that same name?" -- Smyth said, "let me get with . . . somebody and see what we can do here on it" (GXTwoTR-5:4). When Best asked whether the salesman Smyth was getting would "be fully aware of how we gonna do this . . .," Smyth said, "Yeah. Totally" (GXTwoTR-5:4-5). Smyth then left for approximately 10 minutes and returned with Mr. xxxxxxxx (11/9:36). After a brief introduction from Smyth (Smyth: Say, Greg. Hey, guy, this is Greg. . . . He'll take care of you. xxxxxxxx: My pleasure, man. How are you?) (GXTwoTR-5:5), Best walked with Mr. xxxxxxxx over to the Infiniti lot, where the deal was conducted (11/9:38).

2. The Infiniti Sale

After Best selected an Infiniti Q-45, and agreed on full sticker price of $44,385, Mr. xxxxxxxx asked Best for an identification to prepare the paperwork (11/9:38-40; 11/10B:16-17, 25; GXTwoTR-5:8). Best informed Mr. xxxxxxxx that he was in the business of selling cocaine and did not want anything in his name (11/9:40; GXTwoTR-5:9). Mr. xxxxxxxx immediately sought assurance that Best knew Paul Smyth and had bought a car from him before. He then asked Best whether he was a police officer. Best said he was not. (11/9:40; GXTwoTR-5:9-10, 18, 20). Best then showed xxxxxxxx several fake driver's licenses, none of which bore Best's photo. Mr. xxxxxxxx decided to use the "Raymond Smith" license to fill out the paperwork (11/9:40-42).

Best then telephoned the task force and arranged for his partner, posing as one of his employees, to bring him the $20,000 deposit from the sale of "those six keys," which he did (11/9:42-43, 46-47; GXTwoTR-5:14-16). Best advised xxxxxxxx that he would complete the transaction and pick up the vehicle the next day (GXTwoTR-5:14, 22-23). Because it was to be Mr. xxxxxxxx's day off, he introduced Best to Mr. Spriggs, who would complete the transaction (GXTwoTR-5:33-34). Mr. xxxxxxxx and Mr. Spriggs then counted the deposit (GXTwoTR-5:36-40).

The next day, Best called the dealership and learned that Mr. xxxxxxxx had decided to come in to help complete the transaction (11/9:81-82; GXTwo/TR-7:1-2). Best asked xxxxxxxx to send someone to D.C. to pick him up and arrangements were made for Spriggs to pick Best up at Hogates (GXTwoTR-7:2-4). When Best and Spriggs returned, xxxxxxxx, Spriggs and another employee counted the balance of the purchase price ($26,570) (11/9:88-89; GXTwoTR-8:18-21). At Mr. xxxxxxxx's request, Best gave him a $900 tip to be divided among the three of them (11/9:90-91; GXTwoTR-8:22). 3. The 300ZX Sale

The second and third deals followed a similar pattern. On September 5, 1991, Best went to the Nissan/Mazda dealership, where he told Smyth that he wanted to purchase a 300ZX for one of his "workers." Smyth telephoned Mr. xxxxxxxx to assist with the deal. When he arrived, the three discussed Best's cocaine business. Mr. xxxxxxxx then helped Best select a 1991 Nissan 300ZX. Back in Smyth's office, Mr. xxxxxxxx asked Best what name he intended to use. Best produced three driver's licenses and Mr. xxxxxxxx decided to use the one in the name of "William Thomas Jones." Mr. xxxxxxxx then used a money counting machine to count the $12,000 deposit. (11/16:67-74, 77-91; GXThreeTR-1).

The next day, at Best's request, Spriggs again picked Best up in D.C. and drove him to Virginia to complete the deal. Mr. xxxxxxxx counted the $30,190 balance. Best signed all of the paperwork in the name of William Jones, and gave Mr. xxxxxxxx a $700 tip, of which $100 was for Spriggs. (11/16:112-121; GXThreeTR-3).

4. The Jaguar Sale

On October 1, 1991, Best went to see Smyth about obtaining a Jaguar. Smyth again summoned xxxxxxxx. The three discussed cocaine distribution and Best's intention to ship cars to Colombia in the future. Mr. xxxxxxxx then helped Best select a 1992 Jaguar Sovereign. When Best asked Mr. xxxxxxxx why he did not get a discount on the cars he bought, xxxxxxxx said, "I guess the way maybe Paul figures it, is you might be cleaning money by way of autos, I don't know." Best responded, "That's how I'm doing it." GXFourTR-2:22). Mr. xxxxxxxx introduced Best to Robert Migliozzi, the Jaguar finance manager, who prepared the paperwork in the name of Jerry Johnson. The next day, Best had Spriggs drive him from D.C. to the dealership, where xxxxxxxx and Migliozzi counted the $50,000 balance. Best then tipped Mr. xxxxxxxx $1000. (11/18:56-89; GXFourTR-2; GXFourTR-4).

In December 1992, after Mr. xxxxxxxx had left Rosenthal and moved to Richmond to open a record store, an IRS agent, unaware of the ongoing sting investigation, appeared at the Jaguar dealership to investigate the cash reporting form for Deal 4 (which had been marked by the dealership as a "suspicious transaction") (12/14:133, 141). When the agent contacted Mr. xxxxxxxx, xxxxxxxx lied about the sale, not telling him it was done in a phony name or that the buyer had purchased two other cars from him (12/14:140-42). The next month, Migliozzi called xxxxxxxx to seek advice about whether to sell "Rob" six more cars. Mr. xxxxxxxx declined to advise him, saying he "wasn't involved in it anymore" (11/3B:775-76), but did suggest that Migliozzi not tell "Rob" the IRS had been asking about him (11/3B:71-76). The arrests were made a few days later.

SUMMARY OF ARGUMENT

Crucial to Mr. xxxxxxxx's claim of entrapment was his contention that the government knowingly exploited Paul Smyth's authority within the Rosenthal hierarchy as a means of pressuring or "inducing" Mr. xxxxxxxx to make the three illegal sales. However, the government persuaded the court that because Smyth was not a knowing agent of the government, any pressure resulting from the government's use of Smyth was not government inducement. Over defense objection, the court instructed the jury that "[p]ressure or coercion from a source other than a law enforcement official is . . . not an inducement" (1/21A:56; 2/2:62). Because the government can in fact induce a defendant through unwitting third parties, Johnson v. United States, 317 F.2d 127 (D.C. Cir. 1963), this erroneous instruction deprived Mr. xxxxxxxx of the right to present his entrapment defense.

The government irreparably prejudiced Mr. xxxxxxxx's defense in violation of Rules 404(b) and 403, Fed.R.Evid., by parading past the jury a string of inflammatory boasts he had made in an attempt to develop rapport with "Rob" the drug dealer. Trained to "mirror" his customers, xxxxxxxx portrayed himself as a one-time international drug "mule" who used to sleep with three machine guns under his bed. Although Mr. xxxxxxxx did have a five-year-old conviction for cocaine distribution in Maryland (references to which were only partly redacted), the prosecutors never claimed to believe that xxxxxxxx's other farfetched claims were true, including his claim of having once been subpoenaed in connection with a "straw" sale at another dealership. Nevertheless, the government argued Mr. xxxxxxxx's braggadocio to the jury for its truth to establish his predisposition to launder money, fatally tainting him as a dangerous thug in the eyes of the jury.

The district court erred as a matter of law in accepting the government's argument that the entrapment defense is legally incompatible with "acceptance of responsibility." The court rejected the Probation Officer's recommendation that Mr. xxxxxxxx was entitled to an "acceptance of responsibility" reduction before allowing Mr. xxxxxxxx to speak directly to the court about his contrition. At a minimum, this Court should remand for reconsideration of this adjustment.

ARGUMENT

I. THE COURT CRIPPLED MR. xxxxxxxx'S ENTRAPMENT DEFENSE BY ERRONEOUSLY INSTRUCTING THE JURY THAT INDUCEMENT DOES NOT INCLUDE PRESSURE FROM SOURCES OTHER THAN A LAW ENFORCEMENT OFFICIAL.

A. The Erroneous Inducement Instruction

A critical aspect of Mr. xxxxxxxx' entrapment defense was his contention that the government intentionally used Paul Smyth's position within the Rosenthal organization to induce him to do the three deals that are the basis of his convictions. Mr. xxxxxxxx's proposed Theory of Defense Instruction (Number Three), which the court refused to give, stated: "Mr. xxxxxxxx contends that Officer Best's use of Paul Smyth, a general manager, to convey to Mr. xxxxxxxx the fact that Best wished to purchase automobiles for cash, constitutes inducement or persuasion by the government" (JA:__-__).

Consistent with this theory, the defendants' proposed entrapment instruction stated in part (JA:__):

A person is entrapped if law enforcement officials, either directly or through another person, induced or persuaded a person to commit a crime which he would not otherwise have committed. . . . If you should find no evidence that before the alleged offenses occurred, government officers, directly or through another person, induced or persuaded the defendant to commit the crimes charged, but rather that they did no more than offer the defendant the opportunity to engage in criminal conduct, there is no entrapment.

In response, the government proposed its own entrapment instruction, excluding the underscored phrase and including instead the admonition that "[p]ressure or coercion from a source other than a law enforcement official is also (2) not an inducement" (JA:__). The defense objected that the government's proposal failed to recognize that "government manipulation of private parties can lead to indirect or vicarious entrapment" (JA:__). When the court adopted the government's language in its draft instructions (JA:__), the defendants objected again (1/14:94-95). The court overruled the objection, twice instructing the jury in the language proposed by the government (1/21A:56; 2/2:62).

The government emphasized this instruction twice in closing (1/21B:15-16; 1/21D:87), yet argued:

Remember Mr. Ennis? Remember how he told us . . . Paul Smyth had that much pull to bring all of these people together[?].And Rob the drug dealer relied on Paul Smyth because Rob the drug dealer couldn't just walk into Infiniti. He may run into someone like Larry Mischou, the General Sales Manager.Remember what Greg xxxxxxxx told us about Larry Mischou on the tape? He said -- he told Detective Best, "He ain't cool. You know what I mean as far as doing any kind of deals like that. He's too conservative. Let me put it that way."

Rob the drug dealer needed Paul Smyth to pave the way for him.

1/24B:20 (emphasis added).

B. Standard of Review

Whether pressure from a source other than a law enforcement official can constitute "inducement" is a question of law. Because the error in the inducement instruction was preserved below, this Court exercises plenary de novo review.

C. Law Enforcement May Induce By Intentionally Acting Through Unwitting Agents.

In order to make out a defense of entrapment, a defendant must "come forward with some evidence of government conduct that would create a risk of causing an otherwise unpredisposed person to commit the crime charged." United States v. Burkley, 591 F.2d 903, 914 (D.C. Cir. 1978), cert. denied, 440 U.S. 966 (1979). The government's admitted use of Smyth's "pull" within the Rosenthal organization to "pave the way" for Rob at the Infiniti dealership (1/24B:20), was just such an inducement because, as a subordinate employee, Mr. xxxxxxxx would, by definition, feel some "pressure" to honor his superior's request to "take care of" a customer (GXTwoTR-5:5), even when it turned out the customer wanted to buy the car in an illegal way. The jury was improperly precluded from considering this pressure by the court's refusal to instruct that the government can induce "directly or through another person" (JA:__) and insistence on instructing instead that pressure from a non-law enforcement official, such as Smyth, is "not an inducement" (1/21A:56; 2/2:62).

This Court in Johnson v. United States, 317 F.2d 127, 128 (D.C. Cir. 1963), stated plainly that the entrapment defense "has found general application to cases where the officer acts through a private citizen" (emphasis added). See also id. at 129 n.1 ("a private person [can] be the medium for acts of inducement flowing from an officer"). In United States v. Mayo, 498 F.2d 713 (1974), this Court repeated the holding of Johnson that, while inducement by a private citizen cannot be entrapment, "[i]f . . . a Government official uses a private citizen as an agent, and in such manner induces an otherwise unwilling person," that person can assert a defense of entrapment. Id. at 716 (emphasis added). The Redbook entrapment instruction follows this authority by stating that law enforcement can induce "either directly or through an agent such as an informant." Redbook Instruction 5.05 (emphasis added).

Although the Redbook suggests "an informant" as an example of an "agent" through whom law enforcement might induce, it is not necessary that the private citizen at issue be a knowing agent. In the Johnson case itself, the government's "intermediary" was not aware that the person on whose behalf he was soliciting drugs was an undercover officer. See Johnson, 317 F.2d at 132, n.4 (Bastian, J., dissenting) ("the unsuspecting Turner" was "not an informant"). Indeed, Turner, like Smyth, was indicted along with the person the government used him to induce. Id. at 130.

Likewise, in the Abscam sting, the government induced Congressman Kelly through unknowing agents who were ultimately indicted along with the congressman. As the district court explained in the course of dismissing the indictment against Kelly on due process grounds:

The government, for obvious reasons, vehemently seeks to disclaim any government involvement beyond [the government's paid informant] and to disown [the unwitting middlemen] as its agents. But this position is patently untenable in the face of the evidence. [Footnote citing Johnson, 317 F.2d at 128]. It is obvious that although [the middlemen] were unaware of it, they were programmed to one end, i.e., to bring in some Congressman, and in this case it was Kelly, for the purpose of accepting a bribe.

United States v. Kelly, 539 F. Supp. 363, 371 (D.D.C. 1982) (emphasis added), rev'd on other grounds, 707 F.2d 1460 (D.C. Cir. 1983) ("Kelly I"). Although this Court reversed the district court's due process ruling, the Kelly I majority agreed that "the government tendered" its inducement to Kelly through "unwitting middle-m[e]n." Kelly I, 707 F.2d at 1475 & n.10 (Opinion of Ginsburg, J., with Robinson, J., concurring). On subsequent review of the entrapment issues, this Court in Kelly II confirmed that the district court's entrapment instruction -- referring to inducement "by law enforcement officials or their agents" -- was "accurate." 748 F.2d 691, 697 (D.C. Cir. 1984) (emphasis added). See also Burkley, 591 F.2d at 908 n.2 (praising new 1978 Redbook instruction, which referred to inducement by law enforcement officials "acting either directly or through an agent"); id. at 911 & n.15 (contrasting persuasion by a private party with entrapment scenario, in which government "agent" plays role in commission of crime).

The government's intentional use of someone high up a corporate chain-of-command to bring a low-level employee into a transaction is government inducement because it exploits the pressure inherent in any hierarchical organization. Here, the government cannot disclaim responsibility for that pressure: Marion Ennis explained Smyth's "pull" to Best in no uncertain terms before the government chose to exploit it.

The government acknowledged the critical nature of this inducement when it argued that "Rob the drug dealer couldn't just walk into Infiniti" but "needed Paul Smyth to pave the way for him" (1/24B:20). Although Mr. xxxxxxxx also contended that he was induced by the commissions on full-sticker-price sales, the tips, and Best's references to future car purchases (see JA:__), these inducements were completely undercut by the court's instruction that it is "also not an inducement" to "offer or give to a defendant the money which is involved in the commission of the crime itself" or to "initiate the offer of money to a defendant" (1/21A:55-56; 2/2:62). Moreover, because any inducement must take place "before the alleged offenses occurred" (1/21A:56; 2/2:62), the inducement inherent in the initial referral from Smyth -- which so clearly preceded all the offense conduct -- was crucial to his defense. By telling the jury to ignore this inducement, the challenged instruction operated to relieve the government of the burden of proving predisposition beyond a reasonable doubt -- a structural error that can never be harmless. See Joint Brief at ___-___.

II. MR. xxxxxxxx'S ENTRAPMENT DEFENSE WAS PREJUDICED BY THE IMPROPER USE OF OTHER CRIMES EVIDENCE TO PROVE PREDISPOSITION. A. The Introduction and Argument of Other Crimes Evidence

Before the evidence in Deal 2 began, counsel for xxxxxxxx filed a motion in limine (JA:__-__) to exclude those portions of the undercover tapes in which Mr. xxxxxxxx referred to his 1986 cocaine distribution conviction (GXTwoTR-5:42; GXTwoTR-8:24-25), stated that he had been out of the drug business for five years but claimed, "I use to have three machine-guns underneath the fuckin' bed" (GXTwoTR-8:24-25), and boasted that he had been in prison seven times (GXTwoTR-5:42). Counsel argued that these statements were inadmissible prior bad acts under Rule 404(b), unduly prejudicial under Rule 403, and that -- with the exception of the prior conviction -- there was no evidence whatsoever that they were true. In fact, these statements were no more than a salesman's misguided attempt to "mirror" a customer who had declared himself to be a major drug dealer (JA:__-__; 11/9:65-66). (3)

The government argued in response that "it is not the truth, if any, of his statements themselves, but rather the fact that he said them to the undercover officers" which demonstrated his predisposition to launder money, knowledge of the illegal source of the cash, and intent to conceal that illicit source (JA:__) (emphasis added). See also 11/9:61 ("whether they are true or whether they were false is really irrelevant"); 11/9:62 ("it is the fact that he said those things . . . that is important, far more than whether there was any truth to them").

The court ordered Mr. xxxxxxxx's reference to his prior conviction and his claim of having been in prison seven times redacted from the April 30, 1991 tape (11/9:69-70; GXTwoTR-5:42). The court also excluded a later statement by Spriggs that "Greg has been busted on drugs" (11/9:71-72; GXTwoTR-8:13).

The next day, counsel for xxxxxxxx renewed his motion to redact the other similar references by Mr. xxxxxxxx -- specifically his statements "I went down in '86" (GXTwoTR-8:24), "I did some time, you know, I didn't bring nobody down with me, they set me up" (GXTwoTR-8:25) and "I did my time . . . paid my money to my fine, I paid my lawyers" (id.) -- and to exclude the "three machine guns" reference (id.) (11/10A:7-13).

The court clarified that it had meant to implicitly rule that those references did not violate Rule 403 (11/10A:12-13). Defense counsel requested a limiting instruction, but only if the instruction advised the jurors that they were not to consider the evidence as to predisposition unless they determined that the statements were in fact true (11/10A:14-19, 24-25). The court declined to give that instruction (11/10A:24-25).

On November 15, 1993, defense counsel filed a supplemental motion in limine to exclude statements made by Mr. xxxxxxxx during Deal 3 in which he discussed past cocaine prices ("I remember when it was fifty grand a kilo") (GXThreeTR-1:11) and the fact that he had once "muled" two kilos through U.S. Customs ("I muled two in, one time, for my grandfa . . . my ah, people down in Peru . . . I took it from Costa Rica right through Customs") (id.).

The court ruled that the challenged evidence "doesn't prove an element of the crime charged" but "explains the circumstances of the crimes charged" (11/16:100). The court ordered the government to redact the prejudicial reference to "muling" drugs (11/16:100-101) but refused to exclude the following related passage (11/16:101-102, 103) (GXThreeTR-1:12):

xxxxxxxx: I went right through Customs. Didn't even fuck with me. And then one time, I came from Peru and they went to all the fucking suits I had, . . . they thought it was in the lining and shit. My uncle was a big fucking trafficant . . .

Best: I will not travel with mules.

xxxxxxxx: Well, at that point I didn't give a fuck . . .

The court again declined to instruct the jury that it was not to consider the statements unless it determined they were true (11/16:98-100, 107). After the Deal 3 tapes were played, the court did instruct the jury, at the request of the other defendants, to consider statements by xxxxxxxx and Smyth about uncharged matters "only with regard to the state of mind of the parties to those discussions" (11/17:12).

In addressing predisposition in her rebuttal closing, the prosecutor argued for their truth several other crimes referred to by Mr. xxxxxxxx, including the excluded reference to having muled "two kilos" of cocaine (2/1B:87-89) (emphasis added):

What about Mr. xxxxxxxx? . . . [He and Best] talked then about Koons Ford and how a salesman had been subpoenaed and how the police came out to the dealership . . . Remember the next day when Greg xxxxxxxx explained that he was the salesman at Koons Ford? He was the one who had been subpoenaed; and that what had really happened is the buyer came in and it was, in his words, "a punk sale." He said the buyer came in with his mother.

Does it sound like Mr. xxxxxxxx has been involved in a deal where the purchaser brought in a straw?

. . . He said that he was used to gunrunning; that he remembered when cocaine was $50,000 a kilo; that he himself had once moved in two kilos from Costa Rica to people in Peru, that he went right through Customs.

Defense counsel moved for a mistrial (2/1A:32-35, 37), arguing that he had been given no notice that the government intended to argue the supposed prior straw deal for its truth and that "I thoroughly looked into that -- and the problem is that it's untrue. And I defy the government to prove otherwise" (2/1A:33-34). Likewise, "[i]t was simply untrue" that Mr. xxxxxxxx was ever subpoenaed (2/1A:34). Similarly, as to the "gunrunning" and "muling" arguments, "I think they know that they're untrue" (2/1A:34). In the alternative, counsel requested that the jury be instructed to disregard those statements as there was no evidence they actually occurred (2/1A:35). No relief was granted.

B. Standard of Review

Rule 404(b) rulings are reviewed under the two-step analysis set forth in United States v. Washington, 969 F.2d 1073, 1080-81 (D.C. Cir. 1992). Rule 403 rulings are reviewed for grave abuse. Id.

C. The Inadmissible Prior Bad Acts Evidence Was Devastating On the Central Issue of Predisposition.

As explained in United States v. Huddleston, 485 U.S. 681, 689 (1988), the prosecution may not "parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo." Rather, "similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Id. (emphasis added). The evidence is therefore admissible only if the judge makes the finding that the jury could conclude that the act occurred "by a preponderance of the evidence" (id. at 690) -- a finding never made by the court here. Under Huddleston, it was error for the court to admit the various prior bad acts Mr. xxxxxxxx boasted about and to allow the government to argue them for their truth on the predisposition issue where the prosecutors never took the position that they believed the statements to be true. See 11/9:61-62 ("I can't stand here and tell the court whether, in fact, Mr. xxxxxxxx was imprisoned more than once"); 11/9:62 ("I don't know whether these things are true or not"); 11/9:7, 9; 11/16:98 (referring to statements as "boast[ing]" or "bragging"); 11/16:98 (muling claim "may be false. We don't know"); 2/1A:36 ("It's not important whether it's true or not . . . We don't know them not to be true"). The court itself suggested that Mr. xxxxxxxx's statements "might be characterized as hyperbolic mirroring" (11/10A:13). See State v. Elmer, 815 F. Supp. 319, 322 (D. Ariz. 1993) (border patrol agent's "braggadocio" statement to fellow agent that he once "shot the face off a man" at border crossing was inadmissible in his trial for shooting at illegal aliens where "[t]he state concedes that no proof exists that this event ever occurred"), aff'd on other grounds, 21 F.3d 331 (9th Cir. 1994).

Moreover, with the exception of the supposed straw purchase, the disputed acts were not sufficiently "similar" to the charged acts to be probative of predisposition to commit them. While other crimes evidence is admissible in an entrapment case to show that the defendant "had a propensity to commit crimes such as those he is accused of committing," Burkley, 591 F.2d at 922 (emphasis added), prior drug muling and machine gun possession are simply not probative of a propensity to launder money through the sale of cars. See United States v. Blankenship, 775 F.2d 735, 739-740 (6th Cir. 1985) (other crimes evidence admissible to show predisposition "only when the other crimes are of the same nature as those charged;" reversing where defendant's taped statements about prior thefts and burglary schemes not probative of predisposition to deal in firearms); United States v. Bramble, 641 F.2d 681, 682 (9th Cir. 1981) (prior crimes evidence not relevant in entrapment case unless it proves defendant "was engaged in illegal operations in some way similar to those charged in the indictment;" reversing where prior marijuana possession not probative of predisposition to distribute cocaine), cert. denied, 459 U.S. 1072 (1982); United States v. (John) Daniels, 572 F.2d 535, 538 (5th Cir. 1978) (reversing where possession of shotgun "appears to be of no probative value with respect to predisposition to sell narcotics and to be substantially prejudicial").

Despite the court's agreement that any probative value in Mr. xxxxxxxx's reference to his 1986 cocaine distribution conviction was substantially outweighed by the danger of unfair prejudice (11/9:69), the court inexplicably refused to exclude every reference to the conviction except the first, leaving in Mr. xxxxxxxx's statements that "I went down in '86" (GXTwoTR-8-24), "I did some time, you know, I didn't bring nobody down with me, they set me up" (GXTwoTR-8:25), and "I did my time . . . paid my money to my fine, I paid my lawyers" (id.). Evidence that a defendant has a prior criminal record creates "well-nigh inescapable prejudice." United States v. Carter, 482 F.2d 738, 740 (D.C. Cir. 1973). See also United States v. (Gregory) Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985) ("That juries treat prior convictions as highly probative has been confirmed by empirical investigations."). Admission of this evidence over objection violated the "fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds." Id.

Finally, although the court had specifically excluded from evidence Mr. xxxxxxxx's claim that "I muled two in, one time, for my . . . people down in Peru . . . I took it from Costa Rica right through Customs" (11/16:100-01), the prosecutor argued this unsimilar act, which it had never claimed was true, as evidence of Mr. xxxxxxxx's predisposition to launder money. See 2/1A:37 ("He said that . . . he himself had once moved in two kilos from Costa Rica to people in Peru, that he went right through Customs"). Although the court had erroneously admitted part of this discussion (11/16:101-02, 103), the prosecutor's argument was a clear reference to the portion that was excluded. This reference to highly inflammatory facts not in evidence, along with the prosecutor's argument of the other unsubstantiated crimes for their truth to prove predisposition, requires reversal. See United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993) (reversing where prosecutor referred to unproved other crimes in closing). See also Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969).

Individually, and certainly in sum, the government's exploitation of Mr. xxxxxxxx's references to various prior crimes as proof that he was predisposed to launder money was devastating on an issue central to Mr. xxxxxxxx's defense. (4) As to the other defendants, the government sought to prove predisposition based solely on their reactions to Best's offers, rather than on any specific instances of past bad conduct. The verdicts show that the jury gave all the defendants, except Mr. xxxxxxxx, one "bite at the apple." See 5/6:26 (court noting "one bite at the apple may be as good an analysis of what the jury did as anything"). As explained in the Joint Brief at ___, it appears that the jury concluded that the other defendants were not predisposed when Best first approached them, but improperly relied on each defendant's first deal to establish predisposition for any later deals. The government's presentation of qualitatively different (and wholly improper) predisposition evidence against Mr. xxxxxxxx, pre-dating his first deal, would appear to explain why the jury found only Mr. xxxxxxxx was predisposed to launder money before meeting Best. Or the jury might have engaged in a less subtle analysis and simply concluded that a previously convicted criminal who once muled two kilos of cocaine into this country and used to sleep with three machine guns under his bed was a dangerous person who should be sent back to prison regardless of whether he was entrapped to commit the money laundering crimes charged in this case.

III. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN DENYING MR. xxxxxxxx AN "ACCEPTANCE OF RESPONSIBILITY" ADJUSTMENT.

A. The Court's Rejection of the Probation Officer's Acceptance of Responsibility Recommendation

Trial counsel submitted the following statement to Mr. xxxxxxxx's Probation Officer (Presentence Investigation Report ("PSI"), 47):

Mr. xxxxxxxx' defense to the money laundering counts was entrapment. Simply put, he conceded he committed the crimes, but claims he was entrapped. He proceeded to trial for constitutional reasons. He wanted the government to meet its burden of proof against him. He presented no evidence at all and did not pursue any false or misleading positions, he admitted his commission of the offense, but maintained that he was entrapped. Mr. xxxxxxxx realized that what he did was wrong and he is remorseful. He further realized that his conduct contributed to the proliferation of the drug problem in this city.

In addition, Mr. xxxxxxxx spoke personally with the Probation Officer about his acceptance of responsibility, truthfully admitting all of the acts constituting the crimes charged (JA:__). Based on that interview, the Probation Officer reduced Mr. xxxxxxxx's offense level by two points pursuant to U.S.S.G. 3E1.1(a). PSI 57.

The government filed an objection to that recommendation, arguing that Mr. xxxxxxxx had not "conceded that he committed the crimes" and had pursued "false or misleading positions" (JA.__):

[N]owhere before or during the trial did xxxxxxxx concede that he committed money laundering, either through himself or counsel. In fact, his defense counsel vigorously cross-examined government witnesses including attacking witnesses's credibility. In addition, xxxxxxxx pursued a false position in his entrapment defense. The jury rejected this defense, finding xxxxxxxx guilty of every substantive money laundering count with which he was charged, although every other defendant was acquitted on their first money laundering count.

The government took the position that an entrapment defense is, as a matter of law, inconsistent with acceptance of responsibility as defined in 3E1.1 (JA:__):

Defendant xxxxxxxx denied the essential elements of guilt and denied committing the crimes by asserting the entrapment defense.

Entrapment cases in general, and this case in particular, do not present the situation where the defendant admits the crime, but asserts his right to a trial to preserve a legal question (such as the constitutionality of a particular offense). Here the question of entrapment is one of fact for the jury, not an issue of law for the court. A defendant is not entitled to a downward departure for acceptance of responsibility merely because he admitted the criminal acts but went to trial to assert the entrapment defense. [Citing cases for proposition that entrapment defense is "antithesis" of the acceptance of responsibility].

The Probation Officer considered the government's objection, but concluded that "[t]he probation officer supports the defendant's position in this matter," affirming his recommendation of a two-point adjustment. PSI at 25.

In its sentencing memorandum, the government argued (mistakenly) that "Mr. xxxxxxxx has made no admissions whatsoever to the presentence report writer" (JA:__) and, in the alternative, again argued that the entrapment defense is inconsistent with acceptance of responsibility (JA:___).

At the sentencing hearing, the government acknowledged that Mr. xxxxxxxx had in fact admitted to the Probation Officer "'I did it'" and had expressed remorse but contended that his claim of entrapment, by definition, put responsibility for the crimes on the government rather than on Mr. xxxxxxxx (6/21:8-9). The district court entertained a legal response from defense counsel but asked that his "remaining allocution" be held until after the acceptance of responsibility determination was resolved (6/21:12). On that issue, the court apparently determined that it was without legal authority to grant the requested adjustment (6/21:14) (emphasis added):

The probation officer was prepared and is prepared to allow a 2-point reduction for acceptance of responsibility. Considering the totality of the circumstances and essentially for the reasons which are set forth in the government's pleading, I find myself unable to agree with that conclusion.

And while I adopt the findings and conclusions of the presentence report, I do not agree with the 2-point adjustment for acceptance of responsibility as set forth in paragraph 57 of the presentence report . . . .

Only after this legal ruling, after the guideline range of 57 to 71 months was set, did the court solicit allocution directly from Mr. xxxxxxxx (6/21:15). He began with an apology for the "vulgarities" he used on the tapes (6/21:19): "I was very ashamed to have to sit here and endure listening to myself speak like that. But it is one of my shortcomings." Mr. xxxxxxxx then took responsibility for his own alcoholism and drug addiction (having been sober for eight years as of July 7, 1994 (6/21:22)): "I brought that upon myself; no one enrolled me in that" (6/21:19). He explained that from the time "Rob" first approached him, "my gut told me something was funny about it. . . . I felt that I was doing something wrong" but had gone forward because of "my greed" (6/21:21).

I battled with myself day in and day out about how I was right and the government was wrong . . .

I finally surrendered to myself. And it took me almost -- from the time I got handcuffed on January 14, 1993, and probably until mid-way into the trial, and I said to myself, "you know what? I was wrong;" I know I was wrong. I should have never done a deal with that guy. When he first hit me with that million dollar statement that he was a cocaine dealer, I should have thrown him out. .

I should have been willing to get fired from my job and I didn't. And that's because of the greed that the car business and myself had.. But I'm to blame; I brought it upon myself; and I will take the responsibility of whatever happens to me..What it showed me was that I need to get back into my [daily AA and NA] meetings . . . I got away from that somehow working at Infiniti. I started getting very materialistic and less spiritual. And because of that, I got back into not caring about people.

. . . I am very ashamed of myself. And I beat myself up enough for the last year and a half, but I'm very sorry.

I'm very sorry to the government for having to go through with this. I'm ashamed of myself, but I do forgive myself.

6/21:21-24.


The court then sentenced Mr. xxxxxxxx to 57 months imprisonment (6/21:27-28).

B. Standard of Review

Under the Sentencing Guidelines, "purely legal questions are reviewed de novo." United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). See United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995) (applying de novo review to applicability of 3E1.1 to defendant who raised insanity defense); United States v. McLean, 951 F.2d 1300, 1303 (D.C. Cir. 1991) (whether "career offender" can qualify for acceptance of responsibility is "a legal question"), cert. denied, 503 U.S. 1010 (1992).

C. A Claim of Entrapment is Not Legally Inconsistent With "Acceptance of Responsibility."

Application Note 2 to 3E1.1 provides that, "This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse" (emphasis added). A 3E1.1 adjustment is permitted "where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct)." Id. (emphasis added). Here, the court rejected the Probation Officer's recommendation based on "essentially the reasons which are set forth in the government's [sentencing memorandum]" (6/21:14). Because the government subsequently acknowledged that its first reason -- that Mr. xxxxxxxx made no admissions to the Probation Officer -- was factually inaccurate (6/21:8-9), that reason obviously cannot support the court's decision. The second reason -- that entrapment is not the sort of issue one can go to trial to preserve and still qualify for an adjustment under Application Note 2 -- is wrong as a matter of law.

Application Note 2 focuses on whether the defendant has "denied the essential factual elements of guilt." The prosecutor acknowledged in her closing argument that, because Mr. xxxxxxxx's sole defense was entrapment, he was not like the other defendants, who "deny the crimes were committed" (2/1B:50). See id. ("Mr. Grimm did not argue to you that we failed to prove the element[s] of money laundering with respect to Mr. xxxxxxxx"). By asserting the entrapment defense, Mr. xxxxxxxx was "preserv[ing an] issu[e] that do[es] not relate to factual guilt." Application Note 2. His position at trial that he should not be convicted because the criminal conduct had been induced by the government was a "challenge to the applicability of [the money laundering] statute to his conduct," Application Note 2, not a denial that he had laundered money.

The government argued below that "'a claim of entrapment at trial seems to be the antithesis of the acceptance of responsibility.'" JA:___, quoting United States v. Demes, 941 F.2d 220, 222 (3d Cir.), cert. denied, 112 S. Ct. 399 (1991), and citing United States v. Hansen, 964 F.2d 1017, 1021 (10th Cir. 1992) (Application Note 2 exceptions "do not apply" where entrapment claimed; entrapment defense "place[s] the blame . . . upon government inducement").

The better authority holds, however, that "denial of a downward adjustment under section 3E1.1 may not be premised merely upon the presentation of an entrapment defense." United States v. Davis, 36 F.3d 1424, 1435-1436 (9th Cir. 1994), cert. denied, 115 S. Ct. 1147 (1995). See also United States v. Corral-Ibarra, 25 F.3d 430, 439-442 (7th Cir. 1994) ("an entrapment defense, if pleaded in good faith, . . . may possibly qualify" as a situation warranting reduction under Application Note 2); United States v. Fleener, 900 F.2d 914, 917-918 (6th Cir. 1990) (rejecting government's argument that entrapment defense is "inconsistent with" acceptance of responsibility) (cited with a "but see" in government's sentencing memorandum (JA:__)). Indeed, since Hansen, the Tenth Circuit has upheld denial of an acceptance adjustment where the trial court "did acknowledge the entrapment defense does not necessarily bar a 3E1.1 reduction." United States v. Hoenscheidt, 7 F.3d 1528, 1532 (10th Cir. 1993). Misled by the government, the court here made no such acknowledgement.

Even if this Court were to conclude that the district court's ruling was not premised on a misunderstanding of the scope of 3E1.1, it should nevertheless remand for additional consideration of this issue. The district court erred in rejecting the Probation Officer's conclusion that Mr. xxxxxxxx had accepted responsibility for his crimes without ever hearing from Mr. xxxxxxxx himself. See Davis, 36 F.3d at 1424 ("sentencing judge must consider all the evidence bearing on the issue of the defendant's contrition"). The district court should be directed to consider the acceptance adjustment in light of the inculpatory and remorseful statements made by Mr. xxxxxxxx when he was given the opportunity to speak after the court had already decided the acceptance issue against him.

CONCLUSION

For the foregoing reasons, Mr. xxxxxxxx must be granted a new trial. In the alternative, this Court should remand for further consideration of an acceptance of responsibility adjustment.







Respectfully submitted,





A.J. KRAMER

FEDERAL PUBLIC DEFENDER





_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Gregory xxxxxxxx





CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Gregory xxxxxxxx contains 7561 words as measured pursuant to D.C. Circuit Rule 28(d).



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Gregory xxxxxxxx have been served by first-class mail, postage pre-paid, upon: Barbara J. Valliere, Esq., Assistant United States Attorney, 555 Fourth Street, N.W., Washington, D.C., 20001, this 3rd day of November, 1995.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender



1. The nature of the case and course of proceedings below are set forth in the Joint Brief.

2. The "also" refers to other things, immediately preceding this instruction, that were likewise classified as not inducement: "[Law enforcement officials] may properly offer or give to the defendant the money which is involved in the commission of the crime itself. And they may properly initiate the offer of money to the defendant" (JA:__).

3. Willie Gladden explained that he actually received training from Rosenthal about how to lie to customers to establish rapport -- a sales technique called "mirroring" (11/8B:86-87, 105-109, 111):

What [mirroring] does is that you actually repeat what the customer is saying to you. . . . It's like a mimic . . . What he says to you is what you reflect back to him. 11/8B:106.

You know, if you were to come in and say you were a lawyer, and I'd say that I have a brother that's a lawyer, so we can shatter the ice. And I don't have a brother that's a lawyer, that's a lie, but that's what we do as part of our profession . . . .

11/8B:87.

4. This damning predisposition evidence was especially likely to result in conviction given that the court repeatedly thwarted counsel's efforts to put favorable predisposition evidence before the jury. In addition to excluding the "noose" Christmas card (JA:__), see Joint Brief at __, the court also erred in precluding Mr. xxxxxxxx's counsel from cross-examining Best using $15,000 in actual currency (far less than the $50,000 put in front of Mr. xxxxxxxx in Deal 4, for example). The court had allowed the government, over objection, to demonstrate for the jury the operation of a money counter, using $1000 in $5 bills (11/16:108-112). But when Best subsequently denied that Mr. xxxxxxxx's eyes "lit up" when the cash was put in front of him and opined that the use of currency did not make the deals more attractive (11/19:80), the court precluded defense counsel from having Best count out the demonstrative currency as a foundation for questions about the cash and Mr. xxxxxxxx's reaction to it (11/19:80-87; 11/22:3). Upset that some of the currency bundles had spilled to the floor (11/19:85 11/22:3), the court accepted the government's argument that it was "not proper" to use real currency to evoke a "visceral, emotional response" from the jury (11/19:84), ignoring that part of Mr. xxxxxxxx's entrapment defense was that the government's use of so much currency had evoked just such a response in him.