United States v. J. Wilton Hunt, Sr.

SPROUSE, Before RUSSELL and Circuit Judges, MICHAEL, Jr., and H. JAMES Judge United States District for the West- Virginia, ern District of sitting by designa- tion. RUSSELL,

DONALD Judge: Circuit Appellant Hunt, Sr., J. Wilton a North judge, Carolina state district was convicted following a jury trial of the following of- 1) conspiracy fenses: to conduct the affairs enterprise, judgeship, through of an his pattern of racketeering activity, accepting law, in violation of bribes North Carolina §§ 1962(d) (the 18 U.S.C. and 1963 RICO statute); 2) facilitating making and telephone an interstate call with the intent carry activity, gambling on an unlawful law, in violation of North Carolina § 1952(a). principal ed that he was interested in acquiring His defenses U.S.C. alleged im- $400,000, Club for as below were Roxanne much as by government agents in proper illegal conduct a front for various activities such as process. The defendant violation of due drugs prostitution, protec- needed appeals testify at trial. Hunt now did not Carroll, tion from local authorities. who convictions, affirm. and we government witness, testified at trial as a acquainted told Redden that he was with I. Hunt, judge and that the would be “avail- prosecution arose from an undercov- This protection payments.” able for He claimed corruption in investigation er Columbus Hunt, personal to a close friend of and begun in County, North Carolina judge play pok- mentioned that the liked to Investigation, Bureau of and the Federal er. Redden told Carroll that the assur- acronym The Col- known “Colcor.” protection ances of would have to come mid-1982,cul- investigation cor lasted until personally, from Hunt and asked Carroll to minating pub- in the indictments several arrange meeting. a officials, including Judge lic Hunt. The pressure Redden, After further defendant was first elected to the District “leaning who admitted that he was on Car- Court for the 13th Judicial District of very during part roll hard” this Carolina, comprised North an area of three investigation, finally managed Carroll to Columbus, including counties in and arrange meeting a between Redden and judge presided as a over misdemeanor in Hunt a motel room in Whiteville on judicial cases and traffic offenses. He held meeting, November 1980. Prior to this throughout period office the relevant judge Carroll had told Redden that investigation. Colcor money,” “didn’t seem to care about the and investigation The FBI was first directed money no offer of had been made. Redden August Hunt in At toward 1980. that time present and several other FBI were Joseph Moody, ap- who was scheduled to meeting at the November 20 in undercover pear in charges, Hunt’s court on assault roles, secretly and the conversation was Edwards, Danny informed the FBI that a suppos- recorded. Redden did not make his criminal, local had claimed that he could organized ed crime explicit connection judge. gave Moody The FBI bribe judge, simply told Hunt Edwards, sup- to deliver to who was $300 buying was interested in the Roxanne Club money posed attempted to use the for an house, suggesting illegal for a steak payoff. appeared pur- Hunt never poker games premises. would be run on the Edwards, portedly arranged meeting with previ- There was evidence that Hunt had surveillance, which was under FBI and Ed- ously participated games, in similar as re- evidently pocketed money. wards bribe counted witnesses at trial. Redden Nevertheless, the FBI continued its in- judge possible asked the for “advice” on Hunt, vestigation subsequently and area, problems with law enforcement in the Moody informed the FBI that another indi- Hunt, opposing far from the idea of vidual, Carroll, James had also claimed that illegal games, opera- told Redden judge. agent he could “deliver” the games likely tors of the would not Redden, together Moody, William L. with jail receive time for a first offense. Red- Club, met Carroll at the Roxanne a bar explicit money den made no offer of at this Whiteville, North Carolina which Carroll meeting, explaining pur- afterward that the Redden, operated, on 1980. October meeting “just to feel pose of was each undercover, acting presented to the himself judge exactly other out to see who the was unwitting Leonard, rep- Carroll as Bill feelings his He and what were.” acknowl- syndicate resentative of a or or- criminal judge might ganization edged possibility making interested in financial corrupt. not have been suggest- investments in the area. Redden

J081 20 meeting, the November facing suspension license, after was Soon of his judge it clear to Hunt that Redden the made consented to “handle” it. Carroll paying a month interested for $1500 again On March Drdak met judge’s protection. replied, “That Hunt Hunt, giving judge monthly his agree- good.” reported the sounds Carroll payoff. reported on Hunt his efforts to Redden, meeting and a took ment second Moody’s problems, take care of traffic as- Redden and place December suring Moody’s Drdak ticket would found in Whiteville judge a Carroll as a be treated conviction. Drdak told joint,” the two out- joined and Hunt “beer planned open gold Hunt that he a side a car. Their conversation was re- a silver business Whiteville to serve as again explained corded. Redden to the drug smuggling. front agreed their judge protection need for help required Drdak obtain license for the gambling, expressed business, planned and the telephoning county commission- understanding. gave county attorney Redden then Car- er and a about the matter. cash, day license, an in The next envelope containing Drdak his roll received $1000 subsequently opened and the money Hunt from Carroll. business. accepted and the leaving, he had Before Hunt said that nev- Drdak’s next recorded meeting with money taken it er before and found diffi- Hunt was June on when a $2000 cult, money proposed but then the made, protection payment was and Moody’s “campaign considered a On contribution.” discussed, problems traffic were as aswell gave December Redden the re- Carroll drug smuggling plans. the Hunt was un- maining judge, delivery for the who $500 willing participate directly smug- in the requested money, the and a week later had gling, to talk agreed to a local sheriff confirmed the Hunt that he had received “put and his mind at ease” about Drdak’s payment. operation. judge The admitted having pre- viously attempted buy some smuggled protection accepted a Hunt second $1500 diamonds. January payment from Redden on thereafter, September At a Shortly meeting Redden retired the be Drdak, tween Hunt and which was for both health reasons and was relieved of videotaped, judge recorded and the accept responsibilities, being replaced Colcor his payment. ed his next Drdak, agreed Hunt $1500 agent, another FBI who by Robert speeding to take care of a ticket issued to introduced to Carroll as another mem- was associates, another of Drdak’s undercover organization, of Redden’s Thomas ber Hoferkamp, Brad charge and this inwas Ryan. Drdak met Hunt on “Doc” first subsequently fact reduced. pre Drdak had judge February giving the viously put Hunt asked him in touch protection payment third He $1000. bookmakers, Septem with local and at the organi- made it clear to Hunt that now meeting, gave Hunt ber Drdak a South part zation of which he was a was involved telephone Carolina number for a bookmak drug dealing gambling, in as well as and er, McDuffy. Frank Drdak placed later judge wanted to set low bonds McDuffy, forming several bets with arrested, mak- of his associates who were II basis for Count of the indictment. agreed it ing easier for them to flee. Hunt so. that some- to do He admitted to Drdak meeting Hunt Drdak held their next else had a million one offered him half payment 21. No October was made smug- protect dollars to a local narcotics judge expressed this time. The his concern operation, gling and that he “didn’t know that his name had been linked local ru- offer, “it large what do” about that drug operation mors to a uncovered requested money.” by police County, lot Drdak also Brunswick North Carolina, judge’s using of some “taking assistance in care and that Carroll had been problems” Moody, indiscriminately. traffic an im- his name Hunt for a Mr. main- tained that could of no further use to portant who he operation, member of their personally suspi- allegations under similar Drdak if were Hunt’s criminal asso- county city po- ciations received from cion. during investigation. direct lice On 9, 1981, Drdak had his On November government, examination Drdak telephone Hunt in a call final contact with having learned from Peters confirmed ticket, Hoferkamp’s concerning which was associations, reputed Hunt’s criminal about Thereafter, day. the FBI reduced the next narcotics, sup- alleged involvement in relationship their agents discontinued posed acquisition guns police held defendant, believing they now had custody. original informants for all enough public and that ru- testified, allegations these never nor did concerning beginning to arise mors any showing make of their excuse for plausible afforded a with- unavailability. drawing. concedes in this II. hearsay case that evidence not ordi issue raised The most substantial narily proof be used as admission appellant concerns the into evi- made, where an defense is un allegations dence at trial of certain about recog less otherwise admissible under a Judge Hunt to the FBI made known before hearsay exception. nized It seems that investigation. of its undercover start every circuit to have considered the use of testimony amount- that this contends cases has taken a hearsay, and that its use ed to inadmissible position similar to that conceded right violated his of confrontation under government. See United States v. Web the Sixth Amendment. ster, 346, (5th 649 F.2d 1 347 and n. Cir. 1981)(en Specifically, agent Terry D. strong Peters banc—with a dissent from by Court); direct examination testified on nine members of the McClain, 431, (9th Cir.), he had that informed both v. 531 F.2d 437 Drdak, 835, 102, Redden and before each went un- 429 U.S. 97 S.Ct. dercover, (1976); allegations of three sources of United States Amb First, rose, 742, (6th concerning Cir.1973); Hunt. in late summer of 483 F.2d report Johnston, the FBI a of an inter- received United States v. 426 F.2d Cir.1970); view conducted law enforcement author- United States v. Catan zaro, Virginia, (3d Cir.1969); ities which woman claimed 407 F.2d States, Judge Whiting that a cousin of Hunt had told her v. United 296 F.2d (1st Cir.1961).1 Hunt “taken care of” fire- long had some It has recog been Second, nized, however, charges against him. mem- “appropriate arms that an County searching sheriffs of- inquiry” pre bers Columbus into a defendant’s police department disposition fice and the Whiteville be undertaken where en claimed, associating socially trapment asserted that Hunt was Sorrells v. United criminals, States, 435, 451, reputation 210, 216, with local had a (1932). personally taking guns seized as 77 L.Ed. 413 The introduction of Webster, attempted, according “gross hearsay,” had to an uniden- 649 F.2d at source, searching, purchase weapons. may tified stolen well be but it has been said Third, Danny appropriate, especially told the FBI that to be Edwards where posses- showing such lacks both a Hunt was involved in the sale and County, original unavailability drugs sion of in Columbus and had declarant’s and the bought “particularized guarantees of weapon from Ed- trustworthi M-16 automatic Roberts, only wards. of ness” mandated Ohio v. Peters later told Drdak States, (uncor- (D.C.Cir.1962) Cunningham, United States v. Cf. (6th Cir.1976) (cross-examination prior of defend- evidence of offense inadmissi- roborated claiming entrapment improper ant since entrapment.) held to rebut claimed ble hearsay reports); based on Hansford 56, 66, 100 S.Ct. 65 L.Ed.2d that the FBI had no establish evidence that (1980) in of the defendant’s satisfaction might corrupt before commencing rights under the Confrontation Clause. investigation, and Redden could not testimony Accordingly, had the identify any such evidence.2 Counsel for proof elicited and Drdak been as Peters thereupon informed the asserted, matters in order to show the apparently trying that Redden was court to commit defendant’s discussing the information he had avoid legitimate charged, offenses there could be Peters, received from and counsel for the admissibility. doubt as to willingness expressed defendant to al context of Peters’ actual as to low Redden to answer what he knew.3 however, testimony, great- Drdak’s creates Thus, testimony of Peters and Drdak trial, complexity. er Prior to the defendant objectionable claimed to now indictment on the had moved to dismiss the persistent introduced after efforts of the “outrageous government investi- ground of question govern defense to call into pro- gative conduct” in violation of his due investigating ment’s basis for Hunt at all. being rights, part argument of this cess objected When the defense to Drdak’s testi evidence of had “no mony, district court admitted it on the illegal conduct other than the defendant’s ground “probable cause, it went operatives.” initiated its own Such Likewise, state of mind.”4 the court over pressed appeal also on this a contention is objection ruled a defense to Peters’ testi In grounds for reversal. cross-examina- mony regarding what he Redden, learned from Ed agent prior who testified tion of Drdak, sought question Peters and the defense to wards “it’s a because of what proceeded My point 2. Cross-examination of Redden Mr. Robinson: "Fine. is that he part: relevant wouldn't answer under oath before and so far at, driving today any knowledge Q. that he never had "What I’m isn’t it true that as of him August taking any payoff prior of corruption the F.B.I. had no file of kind of to this case.” Judge Hunt at all?” McCullough: question Mr. "I think the has my knowledge, A. "To no.” gone just payoffs.” a little far afield than Q. "That indicates that there’s no file indicat- is, question puts The Court: "The next if he doing that he is similar activities as of now, you prepared this in are to run with that?” August your knowledge, to isn’t that goes Frankly, Mr. Robinson: “If he with it. right?” it, being point they may candid about at some right.” my knowledge, A. "To try argue any activity predisposi- to criminal is sir, you jury, Q. "I want to name for this one that, saying agree tion. I’m not that I piece paper, tape, one one informant —and prepared punches. I’m to take kind of I give you I can the name to the so don't allegations, important know there’s but what’s is confidentiality its source that reveal —one agent they what did this know when indicated you Judge says when came to Hunt there was specifically to him that there was some indica- being corrupt past. of him in the I evidence predisposition. they tion of go It doesn’t matter if you right to name it now.” want A. “Not that something out and find after the fact.” Judge by name.” "Well, telling you The Court: he’s what other discussing bench conference the cross- 3. At the him; people basically have told that’s what he supra, of Redden recounted n. examination has said.” following colloquy the ensued: McCullough: agent I the Mr. "What think ruling 4. At the time of the district court's on trying saying to avoid he checked with when agent testimony, engaged Drdak’s counsel in a discus- Peters, agent who is the that covered the meaning predisposition, sion on the which county, reports that there were A.T.F. files of upon contending relies the defendant Judge people Hunt had shielded from stolen testimony Drdak’s was admitted to show his property, past file like in cases that were in the charged. predisposition to commit the acts at the time he went back to that were from say arguments it to of counsel Suffice years past, and I have those documents.” court, equated rulings be to the cannot giving every Mr. Robinson: I’m him chance abundantly meaning of which are made the say what he saw." objection subsequent ruling on the clear put McCullough: you Mr. him to "Do want to Peters. trying to avoid the record? I think he's saying that.” had,” hearsay.7 the definition of In it’s within Web they information “[w]hether ster, recognized that the matter.”5 the Fifth Circuit is another true or not circumstances, could, special disingen the defendant appeal On its had been told about prove what good faith on uously that because contends faith, good “as evidence of a defendant government is not relevant part of the motive,” proper in order reasonableness defense, see to an contrary assertions a defend to rebut DeVore, 423 F.2d States v. 347-48, This case F.2d at ant. 649 Cir.1970), denied paradigm applica presents the situation for (1971), which question tion of such a rule. Had the predisposi defendant’s rather on a focuses government’s investiga basis Russell, tion, see United States defense, tion never been raised 36 L.Ed.2d would, course, there have been no prop court could not (1973),the district ground for admission of Peters’ and agents’ testimony erly have admitted hold, however, testimony. Drdak’s We they ground that it went to what on the challenge that where a defendant elects to commencing investigation. knew government’s investiga conduct of an simultaneously that the defense is evident tion, government may introduce rebut sought develop both though tal even it would amount claims, analytically process which are due if it prove were intended to though relying to some extent on distinct asserted, truth of matters for the limited entrap Though facts. same purpose demonstrating that the investi resolve, jury to ment claim was for the gation improper was reasonable and free of nevertheless entitled to was Thus, it motive.8 follows that the district process the due theo develop its rebuttal to admitting court did not err in the chal well, ry once the defense called the lenged testimony. government’s question. conduct into Hav the defendant ing “opened the door” complain testimony not heard to III. position proved adverse to his

which The defendant next contends that no reason to investi had engage evidence of his rulings gate him.6 As the of the district charged the offenses was insufficient demonstrate, this evidence court sustain a conviction as a matter of law. “prove introduced to the truth of the mat claim, find, This we cannot sustained. asserted,” 801(c), ter Fed.R.Evid. but mere ly government’s criticism of the presented to refute Once defendant has investiga by govern decision to launch its undercover some evidence of inducement Hunt, agents, Perl, and therefore did not fall tion of ment see United appear why 5. It does not that the defense ever made truth of matter asserted but to show Coast specific objection allega- investigation). a to introduction of the Guard undertook tions about Hunt that Peters received from law County. indicated, enforcement officials in Columbus 8. Since as we have may prove predisposition, not be used to 147, Rangel, 6. See United v. F.2d defendant would have entitled to a States 534 149 been limit- instruction, denied, 854, (9th Cir.), providing testimony cert. U.S. S.Ct. of 429 97 147, (1976) (rejecting 50 L.Ed.2d 129 claim that was not to be considered for the truth asserted, hearsay improperly prove predispo any admitted matters and did not bear in opened up by way sition where matter defense coun on the defendant’s claim. Al- sel). ternatively, once made aware of the nature of government might the evidence that the intro- duce, 606, might agreed stipula- Scott, the defense to a have 7. See United States v. 678 F.2d 612 (5th Cir.), denied, 972, government, thereby keeping any tion with the cert. S.Ct. 459 U.S. 103 304, potentially prejudicial (1982) (support information from 74 L.Ed.2d existed for 285 jury.. alleged either The record does not show that admission of radio communications conspirators prove course was considered the defense. because not introduced

1085 denied, (4th Cir.1978), 319, 2781, cert. 1316, 307, 2789, 1321 99 S.Ct. 61 L.Ed.2d (1979); Jannotti, 1050, 1130, 99 S.Ct. 59 L.Ed.2d 92 673 439 U.S. 560 F.2d at 598. (1979); DeVore, 423 F.2d 1069, 1071, Predisposition, recognized as on the burden rests over the recent series of decisions, ABSCAM entrapment defense. The come an Su to the state of “refers mind of a defendant preme various Court has offered formula government agents before make sug entrapment, stating tions of nature of gestion crime,” shall commit a may only prevail that such a claim where require “specific prior does not contem deception actually “the Government’s im plation of criminal conduct.” United plants design the criminal in the mind of Williams, States v. 603, (2nd 705 F.2d 618 defendant,” Russell, 436, 411 U.S. at 93 — denied, Cir.), cert. U.S. —, 104 S.Ct. DeVore, 1645, see also at S.Ct. 423 F.2d at 524, 525, (1983). L.Ed.2d 78 708 “It is 1071, or that the criminal conduct must if sufficient the defendant is of a frame of “ creative mind such that once his attention is called product have ‘the been activity’ officials,” law enforcement to the criminal opportunity, his decision to States, v. United 369, Sherman 356 U.S. commit product the crime is the of his own 373, 819, 821, (1958), 78 S.Ct. 2 L.Ed.2d 848 preference product and not the govern Sorrells, 435, 451, quoting 287 U.S. Id. persuasion.” ment Predisposition may (emphasis S.Ct. sup 77 L.Ed. 413 be found ready from a defendant’s re Sherman). plied event, In any it is sponse to the inducement offered. United clear since Russell the essential ele Myers, States v. 823, (2d ment of the is the defense de Cir.1982), denied, cert. predisposition fendant’s lack of to commit (1983). S.Ct. 77 L.Ed.2d 1322 charged. the crime 411 U.S. at Jannotti, As the Third Circuit observed in at extremely it is predisposi difficult to show

Predisposition necessarily is a nebu public tion of a official to accept bribes concept,9 lous generally through and has been held prior direct evidence of involve question jury, conduct, a unless the ment in similar and in such cir plainly evidence is insufficient as a matter necessary cumstances it is to consider the See, e.g., Jannot surrounding conduct; law. illegal situation ti, (3d Cir.), indeed, very acceptance “the of a bribe public may U.S. 73 L.Ed.2d pre official be evidence of a (1982), so,” and cases cited therein. disposition On to do 673 F.2d at may only where, here, review we jury overturn the least jury’s provided as if, viewing strong determination the evidence in with such evidence of the transac light prosecution, most favorable to the recordings videotapes, tions as and no rational trier of fact could willingness have found which the defendant’s or reluc beyond Where, may to exist a reasonable tance be assessed. as in this Virginia, case, doubt. See Jackson the defendant is involved a eontinu- entrapment, money, appeals duty 9. The standard instruction on to emotion or civic here, given ordinary person asks whether the defendant was seduce a firmness into Gershman, "ready willing” compromising position.” to commit crimes such as B. Ab scam, charged opportunity Judiciary Entrap whenever the was afford and the Ethics of Blackmar, ment, (1982). Jury ed. 1 Devitt & Federal Practice Yale L.J. officials, (3d 1977). simply suppose public § Instructions 13.09 at 364 ed. naive to defendants, hardly illuminating gener neatly This is more than the other can be divided between itself, predisposition given pure al the notion of of heart and those with a “criminal” however, willingness appear, one’s nec outlook. As it would to commit a crime would to essarily impossible depend on the level of inducement of to formulate a more coherent defini by govern predisposition with the fered and the circumstances created tion of consistent Su decisions, Seidman, agents. preme Supreme is ment See L. Court’s the whole matter Court, juries, Entrapment, Justice best left to the discretion of constrained and Our Criminal Dilemma, only perhaps Supreme in the use of unreliable character Court Review evidence, II, offers, supra. 118-19. as we in Part "Persistent amounts have done exorbitant conduct, and relationship proposed with the the there ing was noth may of mind even him agents, ing prevent his state to from breaking off rela relationship by later events assessed point, yet tions at that he proceed chose to prior attitude to the initial bearing on his along path corruption. accepting In illegal conduct. We em- opportunity for money, proffered the defendant himself jury required is not phasize that “campaign advanced the facile excuse of a any such evi- infer Furthermore, contribution.” Hunt never dence, to determine what but is entitled any demonstrated desire to withdraw from accorded to relevant weight any if is to be protection scheme until his name had it. evidence before publicly been linked to criminal activities later; readily qualms be conceded that the several months more may visible predisposition is not over evidence of could expected public have been from a here, finding whelming nonetheless while servant of reasonable rectitude who had adequate that it to sustain the defend astray.10 been led The excuse offered Turning to the facts be ant’s convictions. the defense that Hunt feared to withdraw us, appears willing fore it that Hunt was cannot analysis, light withstand of Red his associates in a motel meet Redden and approaching judge. den’s caution in 1980 at Carroll’s room November investigation, Not until Drdak entered the meeting behest. Hunt learned judge already accepted after the had sever illegal be used for the Roxanne Club would payoffs, al did the defendant learn that the gambling, yet willing was to remain at he dealt en individuals with whom were meeting provide and even advice on the gaged range in a of crimi more extensive pro authorities to the attitudes of local activity illegal gambling. nal than Whatev posed activity. jury, present criminal er unwitting middleman Carroll conflicting explanations ed with for ab have believed or feared about the any payoff sence of on November could relevance, any of little in the absence of reasonably parties assume that were government agents evidence that the either “feelpng] explained by each other out” as judge threatened the themselves or told Redden, judge rather than that the never Carroll do so.11 contemplated any corruption. signifi More Our review of the recent series of AB- cantly, payoff once Carroll made Redden’s decisions, SCAM see v. Kel explicit proposal soon after the first meet (D.C.Cir.), ly, 707 F.2d 1460 ing, significant pressure cajoling no was — U.S. —, 78 L.Ed.2d 247 required judge’s to secure the assent. (1983); Williams, 603; Myers, Thus, prior to the crucial 3 meet December 823; Jannotti, reveals opportunity when the criminal was first significant parallels certain in the conduct presented, substantial circumstantial evi involved, .public including officials judge’s predisposition dence of the had al preliminary through presumably contacts ready preliminary accumulated. The dis “safe” middlemen and initial caution as the cussion between Redden and Hunt on De parties out, any 3 could have left felt one another cember no further doubt before judge’s illegality outright arose, in the mind as to the opportunity corruption Only piece According judge's one which the to the friend Thurston 11. disbelieve, Watts, suggested pangs entitled even money the defendant did not return the judge, of conscience. A close friend of accepted on December 3 because Carroll told Watts, immediately Thurston claimed after dealing “organized him that he was crime meeting, judge the December 3 him that he had admitted to figures” money who would not take the back. accepted money, but would Watts did not claim ever to hear Carroll make have to return it. There is no evidence whatso- statement, supposedly such a received his actually ever that the defendant ever tried to information secondhand from the defendant. money, return December and in payoff, making Carroll denied ever such a statement to receiving actually after his first meeting. after the December 3 inquired remaining after $500 due. persistence faults the here In He first present as well. all circumstances pursuing him, in defendant’s behav respect, least one and next all at eges than that of that the hints of occasionally ior here is even less excusable violence agents FBI dropped during defendants: those individuals the ABSCAM the investi legislative posts, which nec typically gation process held constituted due violations. seeking essarily claim, lead to contacts with those As to the hardly former we can elected political judge, favors. A whether criticize the reasonably circumspect in appointed, must be more pursuing concerning judicial available leads light dealings public, corruption, although proved some barren respon judicial ethics and the standards immediately and others did not bear fruit. office, require him of his which sibilities reports The received the FBI created a partisan con a neutral arbiter above be investigation reasonable basis for the against hold that the evidence cerns. We Hunt; we are not faced with an indiscrimi the defendant was sufficient for government fishing expedition. nate Nor requisite predisposition and to re find presented are we with a situation where a ject defense.12 firmly proposed pay defendant refused a off, and was incessantly thereafter hec IV. by government agents tored to reverse his urges appellant also us to find decision; situation, indeed, might such a government’s conduct of the inves that the equally resolved on well tigation outrageous was so as to violate grounds process. as due Hunt’s failure to the un process, a claim distinct from due jump to the bait on November and his entrapment defense. successful While seeming lack interest in money in his Supreme suggested has that such a Court Carroll, preliminary discussions with could proper in circum might be certain defense reasonably negotiat be construed as mere stances, States, Hampton v. see tactics, ing and do not govern render the subsequent “outrageous.” ment’s conduct (Powell, J., concurring judg prong The latter of the defendant’s due (Brennan, J., ment), at 1654 S.Ct. flawed, for, process similarly claim (1976); Russell, dissenting) 411 U.S. at III, part supra, noted there is no evi 431-32, 1642-43; Hamp 93 S.Ct. at but see dence whatever ton, 489-90, at 96 S.Ct. at 1649-50 U.S. agents ever threatened the them J.), yet (opinion Behnquist, it has pressured anyone selves or else to do so. process govern on a allow a due attack well have believed that he was investigation prevail, ment two underworld, dealing with the criminal on this circuits have set aside convictions investiga this in itself did not render the Twigg, basis. United States “outrageous.” tion As the Ninth Circuit (3d Cir.1978); States, Greene v. United rejecting process observed in a similar due Cir.1971). Assuming 454 F.2d 783 defense: process a due in some circumstances de long recognized “We have since might notwithstanding merit fense have government may employ undercover predisposition of the defendant to com tactics to infiltrate criminal ranks and charged, apparent mit the offenses it is may rely paid informants order agents here that the conduct of the locate and arrest criminals.... This be Russell, hardly “outrageous,” so so, ing the informants and undercover preclude at as to reason, permitted, must within a conviction. to assume that will be convinc identities they elements two-pronged to the criminal have to defendant launches investigation. deal with.” government’s assault on the hold, clear, equally interstate to sustain the 12. bet was sufficient and we so 1952(a) § an conviction. evidence of to facilitate Hunt's 1088 McQuin, 1193, 298, (7th Cir.1979), 612 F.2d denied, 303 cert. denied, cert. (9th Cir.), 946, 1345,

1195-96 445 U.S. 100 S.Ct. U.S. 63 L.Ed.2d 780 1607, 1608, (1980). have previously upheld 100 S.Ct. 63 L.Ed.2d We convic (1980). public The FBI in tions of office this ease holders under RICO there had to make their where was no undercover roles convinc evidence of “or connection, see, middleman, Carroll, ganized crime” e.g. unwitting to their United Long, himself, disreputable figure Cir.), 651 F.2d cert. and thus chose denied, 896, 396, present characters, 454 U.S. tough S.Ct. themselves as (1981), dangerous graft and we will not dealings if crossed.13 In an their ambiguous “organized precondition crime” with the both Redden and Drdak onto the RICO statute restraint, now. That a behaved much crime with more never may have by been “manufactured” threatening any presence. in violence properly dealt with under nothing We can find sufficiently “outra doctrine, by and not a chal geous” agents’ in performance of their lenge to the statute. We substantive find criminal roles to warrant reversal on due that the defendant’s RICO conviction must process grounds.14 be sustained.15 Y. VI. Finally, the defendant contends that he prosecuted cannot be under the Corruption public office, in as manifested Corrupt Organi Racketeer Influenced and well, the ABSCAM cases and here as § (RICO) statute, 1961 et zations 18 U.S.C. exposed through must often be unconven seq., because he is “organ not a member of investigative tional techniques,16 and the crime,” ized and was the victim of a crime perilous treads a course “be Although manufactured the FBI. trap tween the unwary for the innocent and Supreme recognized Court has trap that “the unwary criminal,” Sher man, primary purpose cope of RICO is to 356 U.S. at 78 S.Ct. at [organized legiti infiltration of affording between anticipatory crime] opportunity businesses,” mate States v. Turk willing to the wrongdoer fabricating ette, 576, 591, 101 criminality from inherent human frailties. (1981), 69 L.Ed.2d 246 it has declined to Public officials of honesty reasonable limit applicability might RICO its core astray by often be led sufficient and alone, purpose and lower repeated inducements, courts have ex by plays upon or pressly held that the statute RICO does not might character weaknesses that otherwise require proof that the defendant or his have light. never come to The conduct enterprise organized is connected displayed defendant, however, crime. by the trans See, e.g. Aleman, United States v. gresses permissible simple bounds of point relationship, multiple 13. At one in their Carroll bribes be treated as distinct felo suggested possibility burning nies, to Redden the ilispositively have been resolved our insurance, the Roxanne Club for the and Red- Altomare, decisions in United States v. replied organization arrange den that his could (4th Cir.1980), Karas, and United States v. course, that. Of the arson was never carried (4th Cir.1980), Carroll, out. Redden also told after Thurston 449 (1981). 66 L.Ed.2d 800 illegal poker Watts had won games, $300 one of their up that Watts could end with "a fucked up jaw.” Notwithstanding increasingly 16. publicized defense, use of the it has been said that the Gamble, generally 14. See United States v. doctrine, alone, "[e]ntrapment standing (10th Cir.1984) is no graphic example F.2d 853 for a curiosity, legal more than a more investigators of how far use to been have proceed "sting” seeking allowed to academics tenure than to an undercover criminals Seidman, violating process. seeking without acquittals.” supra, the constraints of due L. n. remaining 15. The RICO issues raised defendant, judgeship whether a can constitute “enterprise" purposes, an for RICO and whether naivete, which he had the like of particularly and is never been weakness office, judicial thought deed, for a holder of or in extraordinary guilty, either held to public officials must be evidently of all never would guilty who have been incorruptibility. It of highest standard the officers of the of if law had not unnecessary for us to decide here how incited, inspired, persuaded, and lured may cast its nets government far the attempt him to to commit it. corruption, for little suspected of search 435, 444-45, 210, 213-14, 53 S.Ct. 287 U.S. expose Judge Hunt. required indeed to (1932)(quoting 413 77 L.Ed. Butts v. Unit con- resolved that the defendant’s We are States, 35, (8th Cir.1921) 273 Fed. 38 ed affirmed. viction must be (Sanborn, J.)). raised, When the defense is AFFIRMED. “predisposition” of the defendant to com is, course, key mit the crime element SPROUSE, Judge, dissenting: Circuit Russell, 411 of the case. United States v. analysis The respectfully I dissent. 93 S.Ct. hear- adopted by majority concedes that Sorrells, (1973); L.Ed.2d 366 287 U.S. at incompetent prove to direct- say evidence is at 216. The 53 S.Ct. defendant must defendant, ly predisposition “ ‘ initially present evidence “that under the effectively permits such use then conduct created a Government’s substan admitting hearsay as direct guise of offense would tial risk that the be commit motive, faith, good proof governmental person ready other than one ted a to Moreover, I cannot reasonableness. ’ ” Webster, it.” v. commit United States by the accept the rule announced broad Cir.1981) (en banc) 649 F.2d apparently permits the majority which Dickens, (quoting States v. United hearsay introduce evidence government to (5th Cir.1975) (quoting, F.2d motive, faith, good and reasonable- on the turn, Mosley, v. investigation the de- of its whenever ness (5th Cir.1974)), pro- alleged a of due fendant has violation Perl, (4th Cir.1978), on majority The relies United States cess. (5th Cir.1981)(en Webster, F.2d 346 (1979). After the defendant banc), holding, its but nev- support for burden, this is re meets “special cir- in this case the er identifies beyond a doubt quired prove reasonable creating need for the hear- cumstances” predisposed to com the defendant was that outweighs great prej- say evidence Webster, charged. the crime mit court would effect that the udicial Webster 349; Dickens, 524 F.2d at 444. admitting hearsay in an en- require before I Because believe trapment case. conclusively that Hunt’s trial established here, are circumstances absent special bribes, such took the and that he and re- Hunt’s convictions I reverse would principal him do so. The agents induced case for a new trial. mand the Hunt was focus then was whether jury accept Hunt demon- predisposed to bribes. rationale of the The basic certainly strably good is not a citizen and it re- changed not since was defense has required to hold even lacks the character Hughes in by Chief Justice Sorrells peated judicial minor office to which was v. United States: however, This, weigh on does elected. of the law The first duties of the officers issue. Hunt claims principal It is punish crime. prevent, are to not to by mani- made him a criminal create duty to incite to and not their govern- The character. pulating his weak prosecuting purpose for the sole crime it____ ready to commit the he was ment claims punishing is unconsciona- [I]t merely opportunity. crimes and awaited ble, and to contrary public policy, against Hunt issue resolved the punish a land to established law of the defense, but and defeated his of an offense man for the commission process, the course of this path to its decision was cluttered with the trial court hearsay gross evidence. make certain must the evidence presented product is not a of the same therefore, appeal, principal issue possibly excessive zeal. police Good inves- improperly the district court is whether tigation tips collects hearsay on the issue of and other admitted evidence information accept Hunt’s bribe degrees of all of reliability and from all thereby jury’s decision. We tainted the shades of reliability informants. The gov look to the Federal Rules of Evidence hearsay evidence police reaches erning the admission of evidence records via a chain of informants whose and to Amendment’s confronta the Sixth unavailability testify has not been shown prohibited Hearsay tion clause. evidence is especially suspect must be its use an proof predisposition in the unless it sat of entrapment subject case to close examina- exceptions general isfies one of the the tion. prohibition contained in the Federal Rules trial, At the adduced con Webster, 349-50; of Evidence. 649 F.2d at McClain, 431, siderable direct of 531 F.2d evidence Hunt’s involve (9th Cir.), denied, 435-37 cert. 429 U.S. ment in pay the bribe scheme—he took the 835, 102, (1976); 97 50 L.Ed.2d S.Ct. 101 ments, expressed helping interest in with Catanzaro, F.2d illegal enterprise, protest and never (3d Cir.1969). The sixth amendment’s jury ed—and from this the was entitled to proscriptions can be even stricter. Califor predisposition. infer See United States v. Green, 149, 155-56, nia v. 399 U.S. 90 S.Ct. Jannotti, (3d Cir.), 1930, 1933-34, (1970)(satis 26 L.Ed.2d 489 fying recognized hearsay exception does (1982). Likewise, there was automatically satisfy not Confrontation defense negating predisposition— evidence Clause). reputation Hunt had a honesty, had governing familiar rules The the admis accepted before, never a bribe initially re hearsay sion of evidence applied must be bribes, sisted the and even tried to return carefully in an case because of payment; the first pressured and the FBI heightened susceptibility' their to abuse. an intermediary to have accept Hunt The nature of the defense is trial, bribes. improper filtered of hear predisposition such that the time the say, presented sharply a drawn factual con reached, issue is the defendant has shown jury flict for the to resolve. Our task on government agents oppor created the course, appeal, of weigh is not to the evi tunity for the defendant’s criminal conduct. process by dence but to which point process At this trial determines view, jury weighed my it.1 In it was whether the has crossed into possible not jury to resolve the the realm of “overzealous law enforce objectively issue because evidence on the ment,” States, Sherman v. United question of Hunt’s was irre L.Ed.2d trievably mixed (1958)(Frankfurter, J., with the most dubious sort concurring), by inducing person triple hearsay into the a double and concerning scheme not oth disposed alleged erwise to commit the crime. In corruptibility.2 citizens, jury’s difficulty good 1. Some indication of the from but also from informants this issue was that after two to three hours from the most broken walks of life. From this jury requested deliberation the however, the first instruc- inglorious ragbag, sometimes the dedi- meaning "predisposition". tion on the 3 Jt. police develops cated officer evidence that App. at 1233-34. worthy by judge jury of consideration in the prosecutorial phase. Failing properly devel- Herein, think, part I lies a failure on the op respectable agency police may investigative to view role dump ragbag investigative leads on a prosecutorial proper perspective. role in the jury- investigatory techniques Good criminal from rely time immemorial on information not permitted (3d court The trial con- Cir.1969); Whiting v. States, data investigatory sider raw well United (1st 518-19 Cir.1961). argues, police however, have vital to been initial work but and the ma- agrees jority just been hearsay as well could have corrosive introduced testimony judicial agents three FBI truth-seeking process. ultimate was admissible because it hearsay was not testimony of the offered three prove the truth of the statements agents assert- overshadowed all the evidence. ed merely prove Agent statements hearsay Drdak initiated the evi- been had made and that the FBI dence, testifying on direct examination were aware of them when the undercover over objection defendant’s that he heard operation was extended to induce Hunt to Peters, Agent who heard from local accept bribes. The majority holds that officers, law enforcement Judge “where defendant challenge elects to “had associated with criminal element government’s conduct of an investigation, Whiteville,” there in “was from a involved government may introduce rebuttal evi- narcotics,” standpoint financial and “had dence, though even it would amount to fairly good gun built a collection” from hearsay if it prove were introduced to confiscated firearms. The contin- asserted, truth of matters for the limited during the Agent ued direct examination of purpose of demonstrating that the investi- Peters as related information he gation was reasonable and improper free of Agents gave to prior Drdak and Redden motive.” operation. the undercover He testified majority’s holding The incorporates hearing about two gave a sheriff who him First, propositions. government prop- transcript of an interview with a woman erly introduced this evidence for the jury’s who “was involved with” cousin Hunt of consideration because defense counsel who claimed Hunt had “taken of” care “opened up” this line of inquiry cross- charges against firearms the cousin. He examining agent Redden as to the basis of repeated the criminal association con- investigation. Second, majority weapons fiscated stories testified view, the evidence was relevant and ad- Drdak, citing as his source unnamed Co- missable because claimed that County lumbus and Whiteville law officers. government’s investigation not was insti- Finally, Peters prison testified that a in- good tuted faith and therefore violated named had alleged mate Edwards process his due rights. drug Hunt was involved in transactions agree I cannot “opened purchased and had defense weapon. an automatic up” the of good evidence FBI faith on Agent repeated Redden some these of as cross-examination so allow testimony. statements None of the on direct examination to all relate other transmitting informants the chain of this completely hearsay unreliable information information testified and the in their files. did unavailability. not show their hearsay first came into evidence dur- concedes, as it well government’s direct examination of should, hearsay evidence not be agent Drdak, objections over to its hearsay prove predisposition used to it is unless character. Drdak was asked: exception admitted under a constitutional you What did [Government counsel]: general prohibition to the against use agent learn from Peters judge? about the contained in the Federal Rules of Evidence. Objection (hearsay)] counsel: [Defense Webster, United States v. to____state goes of [The Court]: (5th [T]his (en Cir.1981) banc); 347 & n. 1 United mind. McClain, States v. F.2d 435-37 [Predisposition (9th deals Cir.), [Defense counsel]: prior act, to the first after (1976); 50 L.Ed.2d 101 United first act. Ambrose, (6th States v. F.2d Cir.1973); Catanzaro, during issue trial and never raised Predisposition, counsel]: [Government so, had he done it would have been even honor, it, synony- your I understand procedural error to submit that egregious transpired the events all mous with deciding the jury. issue to the In legal individuals. between claim, any number of the there were merits going to overrule I’m Court]: [The develop rele- ways trial court to jury. Weight for objection. jury’s en- tainting the vant facts without related then Drdak Jt.App. at 482-83. The effect trapment deliberation. discussed, supra. hearsay much require Hunt opinion is to majority’s on cross-exami- one occasion true that on entrapment defense between an choose agent Redden counsel asked defense nation process claim. due a constitutional evidence aware he was whether in some possible that the defense It is prior to the part Hunt’s corruption on up” issue might “open an exceptional case “no.” 1 was investigation and his answer permit “good faith” so as to This, however, legiti-

Jt.App. at 228. of some evidence the introduction pre- on the issue mate cross-examination however, feel, is not I that this in rebuttal. disposition. all that we should case and above such a the broad rule announced not establish Furthermore, Supreme in Rus Court majority. focusing solely on the issue sell, by 433- 411 U.S. at predisposition, defendant’s 1643-45, clear that makes it faith, or reason good motive “agent’s secondary significance, is of

ableness v. Web at all”. United States

if relevant Cir.1981). ster, LINCOLN-MERCURY, INC.; COLONIAL rele police activity may be The nature Munday; F. Thomas F. Charles William attack, United States process a due vant to McCombs, Appellants, and B.J. (5th Cir.), Scott, v. v. (1982); Webster, L.Ed.2d MUSGRAVE; Meyers; C.S. William O. of bad (to assertions rebut defendant’s Inc.; Lincoln-Mercury, Bor Borough motive), on the issue improper or faith Borough, ough Corp. Land and R.B. ques probative its value Appellees. ... “prejudicial effect tionable INC.; LINCOLN-MERCURY, COLONIAL might great likely to be because Munday; Thomas Charles F. F. William predisposition it as evidence consider McCombs, Appellants, and B.J. Webster, F.2d at character.” of bad Catanzaro, 407 351; see United MUSGRAVE; Cir.1969). Meyers; (3d This use of O. C.S. William Inc.; Borough Lincoln-Mercury, op Bor defendant an hearsay also denies the Borough, Corp. ough R.B. Land by cross examination to establish portunity Appellees. might sources information police lack of support an asserted 83-1057, 83-1657. Nos. po by the instigated crime to commit the Appeals, States Court lice. Fourth Circuit. Likewise, agree I cannot Argued Jan. opened the door to a flood 3, 1984. Decided Dec. motion Hunt’s raising process a due claim. FBI’s grounds that for dismissal on the a denial

investigative conduct amounted He motion. process pretrial

of due was a

Case Details

Case Name: United States v. J. Wilton Hunt, Sr.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 28, 1984

Citation: 749 F.2d 1078

Docket Number: 83-5088

Court Abbreviation: 4th Cir.