DONALD ROBINSON, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-542

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Question presented
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-32a) is reported
at 795 F.2d 278.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 30, 1986.
The petition for a writ of certiorari was filed on September 2, 1986,
and is therefore out of time under Rule 20.1 of the Rules of this
Court.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the evidence at trial required that the court instruct the
jury on the entrapment defense.

                               STATEMENT

   After a jury trial in the United States District Court for the
Eastern District of Pennsylvania, petitioner was convicted of
racketeering, in violation of 18 U.S.C. 1962(c) (Count 1),
racketeering conspiracy, in violation of 18 U.S.C. 1962(d) (Count 2),
and two counts of attempting to possess methamphetamine with intent to
distribute it, in violation of 21 U.S.C. 846 (Counts 6 and 21).
Petitioner was sentenced to concurrent terms of five years'
imprisonment on Counts 1 and 2, and a five-year term of probation on
Counts 6 and 21.  /1/

   1. The Pagans Motorcycle Club was a multistate organization that,
from at least 1976 to 1982, manufactured and distributed certain
controlled substances, principally phencyclidine and methamphetamine
(Pet. App. 7a).  Petitioner was the Pagans' national treasurer (Gov't
App. 33a-34a).  /2/ In addition, he served as an "advisor" to local
chapters of the Pagans in the Philadelphia and southern New Jersey
areas (id. at 72a).  The evidence at trial showed that, throughout the
1976-1982 period, petitioner received presents and small quantities of
phencyclidine in exchange for permitting drug distribution to occur
through Pagan club contacts and on Pagan club premises (Pet. 4).

   In the fall of 1977, Richard Lehr, one of the Pagans' phencyclidine
suppliers, asked petitioner for permission to use a middleman in
selling phencyclidine to Pagan members (Gov't App. 309a-310a).  Lehr
indicated that Pagan members had complained about the price and
quality of the drugs he was supplying, and Lehr said he believed using
a single dealer would improve the distribution situation (ibid.).
Petitioner declined to act as the middleman himself, but he allowed
Lehr to make such an arrangement with Michael Grayson, another Pagan
member (id. at 310a-313a).  Thereafter, Lehr provided Grayson with
approximately 9 to 14 pounds of phencyclidine each week for
distribution among the Pagans (id. at 313a-316a).

   In January 1983, one of the Pagans' former methamphetamine
suppliers, James DeGregorio, informed petitioner that he had procured
all of the chemicals necessary to manufacture methamphetamine (Gov't
App. 235a-236a).  DeGregorio asked petitioner to alert his former
Pagan customers that he would soon have methamphetamine for sale (id.
at 236a).  DeGregorio promised to give petitioner one pound of
methamphetamine for assisting him (id. at 268a-269a).  Unbeknownst to
petitioner, DeGregorio was acting as an informant for federal law
enforcement officers at that time (id. at 20a-24a).  /3/

   Several days later, on January 15, 1983, DeGregorio contacted
petitioner again and informed him that the methamphetamine was almost
ready for sale (Gov't App. 236a-237a).  DeGregorio asked if petitioner
had contacted any of DeGregorio's former customers (id. at 238a).
Petitioner replied that he had tried to contact one Pagan member but
had failed (ibid.).  He said that he would continue trying to contact
that member and others (id. at 238a-239a).

   The next day, DeGregorio took 20 pounds of "look-alike"
methamphetamine to a Holiday Inn in Essington, Pennsylvania (Gov't
App. 239a-243a).  From there, DeGregorio telephoned petitioner and
indicated that the methamphetamine was ready for sale (id. at
244a-245a).  Petitioner stated that he had successfully contacted one
Pagan member, Charles McKnight (id. at 245a).  Later that day,
McKnight telephoned DeGregorio and informed him that he had received
DeGregorio's message from petitioner and that he wanted to purchase
methamphetamine (id. at 250a-252a).  A short time later, McKnight and
Michael Grayson came to the hotel (id. at 251a-252a, 260a-261a);  each
purchased a pound of the "look-alike" methamphetamine (id. at 260a,
273a-276a).  Later that evening, they returned and purchased another
two pounds of the substance (id. at 277a-279a).  /4/

   The following evening, DeGregorio met with petitioner (Gov't App.
282a-283a).  At that meeting, DeGregorio gave petitioner a pound of
the "look-alike" methamphetamine as payment for assisting him, and
petitioner accepted it (id. at 290a-291a).  Petitioner subsequently
sold half of the pound of "look-alike" methamphetamine to Kenneth
Weaver, another member of the Pagans (17 Tr. 54).  /5/

   In his defense, petitioner denied that he was a dealer in drugs or
that he had ever conspired to distribute methamphetamine (22 Tr. 191;
23 Tr. 40).  Specifically, he testified that he told DeGregorio
several times that he did not want the pound of methamphetamine
because he "wouldn't know what to do with it" (23 Tr. 38).
Nonetheless, petitioner testified, DeGregorio left the drugs in
petitioner's van (ibid.).  Petitioner further testified that, when he
gave some of the "look-alike" methamphetamine to Kenneth Weaver a few
weeks later, he told Weaver that he "didn't think it was anything" and
that he "knew it was garbage, not what it was supposed to be" (id. at
39-40).

   At the close of his defense, petitioner requested that the court
instruct the jury on the defense of entrapment.  The court refused to
do so, noting that petitioner had not admitted the elements of the
offenses with which he was charged.  Pet. 6.

   2. The court of appeals affirmed (Pet. App. 1a-32a).  It found
petitioner's challenge to the district court's refusal to give an
entrapment instruction "to be without merit and (to) require no
discussion" (id. at 5a & n.2).

                               ARGUMENT

   Petitioner argues (Pet. 6-9) that this Court should grant a writ of
certiorari to resolve a conflict among the circuits concerning whether
a defendant must admit all the elements of a charged offense before he
is entitled to raise the defense of entrapment.  /6/ The evidence
petitioner produced, however, would not entitle him to an entrapment
instruction in any circuit.  Accordingly, this case is not an
appropriate vehicle for addressing the issue petitioner raises.

   The courts of appeals uniformly hold that, before an entrapment
instruction may be given, a defendant must "make some showing of both
inducement (by the government) and lack of predisposition (by the
defendant)" (United States v. Nations, 764 F.2d 1073, 1079 (5th Cir.
1985)).  See also United States v. Busby, 780 F.2d 804, 806 (9th Cir.
1986);  United States v. Luce, 726 F.2d 47, 49 (1st Cir. 1984);
United States v. Rhodes, 713 F.2d 463, 467 (9th Cir.), cert. denied,
464 U.S. 1012 (1983);  United States v. Bagnell, 679 F.2d 826, 835
(11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983).  Thus, unless
there is some evidence of "overreaching inducive conduct on the part
of the government" (United States v. DeVore, 423 F.2d 1069, 1071 (4th
Cir. 1970)), and an "unreadiness" on the defendant's part (United
States v. Annese, 631 F.2d 1041, 1047 (1st Cir. 1980)), no circuit
allows the entrapment defense to be sent to a jury.  See also United
States v. Brooks, 567 F.2d 134, 142 (D.C. Cir. 1977) (Robinson, J.,
dissenting).  In this case, the evidence was insufficient on both
issues.

   There was no evidence at trial that the government coerced or
pressured petitioner to commit the charged offenses.  See United
States v. Luce, 726 F.2d at 49;  United States v. Bagnell, 679 F.2d at
835.  Petitioner testified that DeGregorio solicited his assistance in
the distribution of the "look-alike" methamphetamine.  But
solicitation alone does not establish "inducement" by the government;
there must be some evidence of at least "mild persuasion or coercion"
(ibid.).  Petitioner did not suggest that DeGregorio pressured him to
contact McKnight (see 23 Tr. 35), so there is no basis whatsoever for
his entrapment claim as to the charge of aiding and abetting the
attempted possession of methamphetamine on January 16.  And
petitioner's brief testimony about DeGregorio's conduct in giving him
the pound of methamphetamine on January 18 does not suggest that
DeGregorio coerced or pressured petitioner in any way.  The most
petitioner's testimony suggests is that DeGregorio wanted petitioner
to have the methamphetamine and that petitioner said he did not want
it and would not know what to do with it (23 Tr. 38).  After
DeGregorio had allegedly left the drug in petitioner's van, petitioner
admits he maintained possession of the drug for several weeks, after
which he distributed part of it to Weaver (23 Tr. 38-40).  Thus, even
taking petitioner's testimony as true, the evidence was insufficient
to support petitioner's claim that he was pressured by an agent of the
government to commit the offenses with which he was charged.  /7/

   Nor did the evidence in any way support petitioner's contention
that he was not predisposed to commit the crimes for which he claims
he was entrapped.  See United States v. Nations, 764 F.2d at 1080;
United States v. Rhodes, 713 F.2d at 467.  On the contrary, the record
contains "overwhelming evidence of his predisposition" (ibid.).
Petitioner was a member of the drug distribution enterprise well
before DeGregorio solicited his assistance in the "look-alike"
methamphetamine distribution scheme:  petitioner aided and abetted
Lehr's distribution of phencyclidine in 1977 and, more generally,
allowed the distribution of drugs through club contacts and on club
premises throughout the 1976-1982 period.  Furthermore, the record
shows that DeGregorio had good reason to contact petitioner in 1982
and to offer him a pound of the "look-alike" methamphetamine in
exchange for assisting in its distribution:  petitioner had accepted
presents and small quantities of drugs throughout the 1976-1982 period
in exchange for facilitating the distribution of controlled substances
to Pagan members.  Although petitioner disputed the evidence of his
drug activities in his own testimony, he made a number of damaging
admissions that undermined his claim that he was not predisposed to
possess methamphetamines.  In particular, he admitted that he had used
phencyclidine regularly and that he had used methamphetamine as well
(22 Tr. 192-193;  23 Tr. 78-81).  He also admitted that he had held
supplies of methamphetamine for DeGregorio on other occasions (22 Tr.
193).  In addition, petitioner testified that DeGreogorio and another
drug distributor had regularly given him supplies of phencyclidine,
which petitioner had on occasion distributed to others (id. at 204,
215-218, 220, 222;  23 Tr. 10, 84).  Thus, the evidence in the record
does not remotely support petitioner's contention that he was an
unpredisposed victim of coercive pressure by a government agent.

   Where, as here, the defendant has not met his initial evidentiary
burden, he is not entitled to an instruction on the entrapment
defense.  See, e.g., United States v. Sarmiento, 786 F.2d 665 (5th
Cir. 1986).  Thus, regardless of whether a defendant can properly
assert inconsistent defenses in an entrapment case, petitioner has
failed to establish his entitlement to an entrapment charge.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectuflly submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   JANIS KOCKRITZ

      Attorney

   DECEMBER 1986

   /1/ Petitioner was indicted together with nine co-defendants.  Two
of them pleaded guilty, and the others were all convicted at trial.

   /2/ "Gov't App." refers to the supplemental appendix filed by the
United States in the court of appeals.

   /3/ DeGregorio had been convicted in state court in September 1982
on charges of attempted murder (Gov't App. 21a).  While he was in
prison, federal officials contracted him and obtained his agreement to
act as an informant for them (id. at 20a-22a).  State authorities
temporarily released DeGregorio so that he could work with the federal
officials (id. at 22a-24a).

   /4/ Petitioner's conduct in arranging for the sale of the
"look-alike" methamphetamine to McKnight and Grayson formed the basis
for the charge in Count 6 of the indictment.

   /5/ Petitioner's possession of a pound of the "look-alike"
methamphetamine formed the basis for the charge in Count 21 of the
indictment.

   /6/ The Ninth Circuit has held that a defendant can argue both that
he did not commit the unlawful acts charged against him and that, if
he did, he was entrapped.  See United States v. Demma, 523 F.2d 981
(1975) (en banc).  Other courts of appeals have held that such
inconsistent pleading is impermissible.  See United States v. Smith,
629 F.2d 650 (10th Cir.), cert. denied, 449 U.S. 994 (1980);  United
States v. Shoup, 608 F.2d 950 (3d Cir. 1979).

   /7/ Rather than supporting a defense of entrapment, petitioner's
testimony appears to have been designed to support a very different
defense.  As to the telephone call to McKnight, petitioner testified
that he did not know that DeGregorio was contacting McKnight for
purposes of arranging a drug deal (see 23 Tr. 131).  As to
petitioner's possession of the pound of "look-alike" methamphetamine,
petitioner testified that he did not initially accept the drug.
Instead, he testified that DeGregorio left it for him in his van.
After he discovered that he had the substance, petitioner said, he
doubted that it was methamphetamine, and therefore claimed that he
never had the intent to possess a controlled substance (23 Tr. 39-40).