JOE SANTIAGO, PETITIONER V. UNITED STATES OF AMERICA No. 89-7255 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). QUESTION PRESENTED Whether the government's conduct was so outrageous that it violated petitioner's right to due process. 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. 1. Petitioner was a security guard at Jackson High School in Miami. Co-defendants Jesus Sud and Ruben Rivera were Miami police officers. In the summer of 1987, Sud and Rivera became friendly with Stephen Maldonado, a security director at a residential complex. Shortly thereafter, the two officers introduced Maldonado to petitioner, 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 Sud, 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, petitioner, who saw Maldonado every day at work, told Maldonado to call Rivera. Maldonado and Rivera met several days later. Petitioner joined them and initiated a conversation with Rivera about doing "rip-offs" of cocaine dealers. Petitioner mentioned a specific dealer nicknamed "Peewee" as a potential target, and sought Maldonado's help in the proposed rip-offs. Gov't C.A. Br. 6-7. On October 13, 1987, at petitioner's suggestion, Maldonado telephoned Rivera, who wanted to meet to plan the cocaine rip-offs. Three days later, Maldonado met with Sud and Rivera, and discussed the rip-offs with them. During the conversation, Maldonado suggested the "hotel scenario," an alternative developed by Sergeant Serig for use if it appeared that the police officers and petitioner were about to commit a theft. The hotel 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 that scenario, Maldonado, who also worked at a Days Inn Hotel, said that 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. Gov't C.A. Br. 7-9. During a series of conversations on October 18, 24, and 26, the conspirators and Maldonado discussed several rip-off schemes, including a drug rip-off within the hotel scenario described by Maldonado. At one meeting, Sud threatened to kill Maldonado or a member of his family if Maldonado informed on the conspirators. Petitioner and Rivera echoed the same threat, and petitioner searched Maldonado for a body recorder. Gov't C.A. Br. 9-11. On October 26, Sud stated his desire to begin surveillance of a suspected drug courier known as "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. The next day, Maldonado telephoned the conspirators and told them that the suspected drug dealer would be at the Days Inn Hotel three days later. Petitioner was ecstatic at the news, saying that it was about time, that he was ready, and that the group could count on him. After more meetings and conversations, the group, which now included co-defendant Jose Angel Fernandez, agreed to meet on October 30, prior to the planned rip-off, at a restaurant near the hotel. Gov't C.A. Br. 12-14. The meeting took place as planned, and the group discussed their assignments during the theft attempt. Petitioner noted that he had a gun and a bag in which to place the stolen goods. The other conspirators were also armed, and Rivera produced a weapon for Maldonado. Petitioner and Rivera told Maldonado to give them the key to the drug dealer's room, which the two men planned to enter. After the meeting, Maldonado went to the Days Inn. Gov't C.A. Br. 14-15. An undercover agent posing as the drug dealer arrived at the hotel and took a duffel bag containing six kilograms of cocaine to Room 406. Maldonado notified the conspirators and gave petitioner and Rivera a key to Room 406. After the undercover agent left the hotel in his car, petitioner and Rivera went to Room 406. Petitioner unlocked and opened the door, and the two men entered the room. When they emerged approximately one minute later, petitioner was carrying a bag that contained six kilograms of cocaine. Petitioner and the other conspirators were immediately arrested; the police confiscated a handgun from petitioner. 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. /2/ 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 court of appeals rejected petitioner's 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. ARGUMENT Petitioner renews his contention (Pet. 6-12) that the government's conduct was so outrageous that it violated his due process rights. The court of appeals correctly found that contention to be meritless. 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 though 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). /3/ 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. /4/ Specifically, petitioner helped to arrange the October 9, 1987, meeting between Maldonado and Rivera, and he later joined that meeting, where he spoke of robbing cocaine dealers, identified an individual dealer as a potential target, and attempted to recruit Maldonado for the proposed criminal enterprise. When at a later meeting Sud threatened to kill Maldonado or a member of his family if Maldonado informed on the conspirators, petitioner voiced the same threat and searched Maldonado for a body recorder. When Maldonado informed petitioner that the conspirators could carry out the hotel scenario three days later, petitioner responded with great enthusiasm. Petitioner brought a handgun to the last meeting of the conspirators on October 30, 1987, and to the Days Inn later that same day. He asked Maldonado for a key to Room 406, accompanied Rivera to the room, unlocked and opened the door, entered the room, picked up the six kilograms of cocaine, and left the room with them. These circumstances demonstrate without question that petitioner was an "actively predisposed participant" in the charged offenses. Tobias, 662 F.2d at 387. The court of appeals properly concluded that his argument to the contrary was "clearly without merit." Pet. App. 1 n.1. 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, Jesus Sud 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. /2/ Petitioner and his associates conceded that they were predisposed to commit the offenses of which they were convicted. Accordingly, they did not assert that the traditional entrapment defense applied to them. Gov't C.A. Br. 20 n.3. /3/ But see United States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983) (limiting Twigg). /4/ 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.