*1 and HIGGINBOT Before RANDALL *,
HAM, and BUCHMEYER Judges, Circuit Judge.
District
PER CURIAM: rehearing, In its for Chevron petition America, UNITED STATES of should have drawn a urges panel Plaintiff-Appellee, policy, a hull which cov- distinction between regardless of whether ers enumerated losses ownership of arose out of the insured’s Moore, John GARRETT and L.G. vessel, P I which insures policy, and a & Defendants-Appellants. resulting from vessel only against liability No. 82-2147. are now ownership. persuaded We is well taken. point Chevron’s Appeals, States Court of Fifth Circuit. P, for The loss of SANDRA which seeks indemnification Continental Sept. Chevron, resulted from a fire found to from Banc Rehearing En Rehearings negligent have been caused Chevron’s 22,1983. Denied Nov. plat operation production of an offshore was, however, an additional form. Chevron policy
assured on the hull on the SANDRA
P Because that hull issued Continental. loss whether or not it
policy covered fire ownership oper
resulted from Chevron’s P, applicable it is
ation of the SANDRA from recov
here, and Continental prevents principle from under the
ering Chevron from its insured. may
an insurer not recover incor
It that the district court was follows indemnifica awarding
rect Continental $160,000 it had for the
tion from Chevron for the loss of the Painting
paid Offshore for Treating suggestion P.
SANDRA panel petition en banc as a
rehearing panel rehearing
rehearing, petition we withdraw the section except
is denied * Texas, by designation. sitting Judge the Northern District District *3 Wallis, B. Hanby,
Robert Clinard Hous- ton, Tex., for John Garrett. Houston, Ramsey, Tex.,
Mike for L.G. Moore. Hedges,
Daniel K. Atty., U.S. John M. Potter, Gough, James R. Asst. Attys., U.S. Houston, Tex., for plaintiff-appellee. WISDOM, TATE, and GAR- Before WOOD, Judges. Circuit TATE, Judge: Circuit John Garrett and L.G. The defendants jury conviction their appeal Moore 2, 1952(a)(3) (“The 18 U.S.C. §§ under , abetting one Act”)1 aiding Travel part: pertinent (1970), pro- vides in § Act 18 U.S.C. 1. The Travel using causing to be used a dence of government’s another in inducements and testimony in interstate commerce with the in of witnesses that would tend to facility bribery predisposition. tent on a scheme. The show lack of Moore addi- carry and Moore the trial tionally argues found that Garrett offered court’s deter- Houston, mination to agreed hearsay to offer a bribe to admit evidence of a taped conversation concerning reputa- his city Texas councilman for his recommenda tion as who someone would “deal” denied awarding tion and vote in a contract of him federal constitutional confrontation group city’s public insurance for the em rights. and fair trial ployees. In facilitation of this unlawful scheme, found, the jury they caused to be shown, We that on the find evidence used facility interstate commerce when trial judge reversibly making did err in long distance call placed telephone jurisdictional rulings. these and evidentiary Houston, from Texas to a federal undercov We therefore affirm the convictions. Hills, agent California, er on Beverly Background Factual and Procedural *4 December These Travel Act convictions are a result appeal, challenge On the defendants operation of a federal undercover that cen- sufficiency jurisdiction of Travel Act upon suspected illegal tered activities of premised phone on an out-of-state call made promoting labor unions in and contracting agent. They juris- to a federal claim that pension insurance and In benefits. artificially diction was created because the 1979, Joseph pleaded guilty Hauser to fed- requisite supplied by interstate element was charges eral of paying receiving bribes and agent, location of the federal and that business; kickbacks in union insurance in the call did not underlying “facilitate” the return for a reduced sentence and financial state offense. Garrett and Moore also con- support of himself and his family, agreed tend that were they entrapped by the fed- cooperate to with the in inves- agents acts, eral into performing unlawful tigating type this of crime. Hauser and and that government’s conduct was so agents, two-F.B.I. Mike Wacks Larry outrageous as to constitute a violation of Montague, established a fictitious insurance due process. argues the evi- agency known as Fidelity Financial Con- dence displayed adduced trial his abso- sultants, Hills, with an office in Beverly lute lack of predisposition to commit brib- and a cover which California would ery, such that he established entrapment as purport represent the Prudential Insur- a matter of law. Moore contends that he Company, large ance national concern. was unable to make out the defense because plan Their initial was for Hauser to expose the trial court corruption among refused to admit certain evi- labor leaders by bribing
ty” means foreign more than intent to— form graphs (1), more than five and thereafter commerce or uses (b) As used in this section (a) any carry activity; any agement, establishment, (3) (2) (1) Whoever commit distribute the otherwise any ¤ unlawful unlawful on, commerce, of the acts or or $10,000 (2), [*] travels in interstate or any facilitate performs years, activity; activity, promote, manage, crime of violence to further any facility if! proceeds including the or (3), or both. specified imprisoned [*] or or shall be fined not or “unlawful promotion, attempts of carrying in interstate or ifc any mail, establish, unlawful subpara- for not ifc foreign activi- on, man- per- of of a state of interstate commerce in this case was § voter; tion of a for the mendation, vote, The “unlawful tentionally tion as a the laws of the State in which committed or cepts, agrees servant 36.02(a)(1), (3) (1975). of (2) extortion, bribery, (3) (1) any pecuniary (a) the United A any or to confer on official, recipient’s person benefit as consideration for a viola- duty imposed by agrees party public or States. activity” knowingly proscribed commits an offense if he in- official. or other exercise of discre- servant, decision, consideration benefit as another, or arson in violation of accept This statute facilitated offers, party official, law on a opinion, Tex.Penal Code from another: or solicits, confers, provides: the use bribery recom- public ac- or or through union insurance acquire being taped, them to that he did not wish to any illegal participate activity. Fidelity. The government’s essentially uncontra- expand operations decided to The following: dicted evidence shows the (at least in because part outside California that Hauser was a publicity August, Hauser contacted a Tex- and, informer), because of Hauser’s con- who acquaintance, put as him in contact tacts, Grubbs, insurance began arrange deals with Harold a labor official Houston, Texas and Louisiana.2 on the recommendation split Grubbs would commissions on insur- jury place days trial took over ance deals “fifty-fifty.” tape-recorded The defendants were testimony. meeting,3 Grubbs told Hauser about union two Travel Act conspiracy on a count and official, Moore, the defendant L.G. whom counts; deliberations, days after four Grubbs described “someone who would count, convicted on one Travel Act but (On “on the appeal, deal” and was take.” agree was unable to on a verdict on the objects Moore to the use of this tape, GX or other Act count. The conspiracy Travel as highly prejudicial.) case government’s presented during introduced Hauser to Moore Grubbs days testimony, importantly most possibility discuss the of Moore’s obtaining testimony of Hauser and two F.B.I. insurance business for Fidelity. dis- agents, by tapes corroborated of conversa- union many cussed his connections in states alleged conspirators tions with the coverage and indicated that insurance telephone conversations with them. tapes hospital may Texas school and districts be *5 in presented eight The defendants’ case was Moore, Hauser, agent available. and F.B.I. days testimony. Mike Wacks met on where September from the insur- establishing Aside from accepted Moore Hauser and the $2000 ance contract to Prudential at issue had potential po- three discussed business and in been awarded on its merits accord with $600,000 (a tential commissions sum of Municipal the recommendation of the Texas mentioned) that Moore could make. Moore League, repu- Garrett, and numerous character and named the defendant the President defendants, Engineering of Richmond Road and a com- tation witnesses for both Houston, the Port of as a missioner of principally upon defendants’ case relied who could them make help “deal-maker” testimony their own extensive on the stand additional connections for insurance con- they which a lawful presented explana- tracts. tion for their actions. The substance of the is that were ex-
explanation merely Moore introduced Garrett to Hauser and their in ploiting political friendships order October, agents Montague Wacks and a a to earn share of commission for asking for some “inside wires on the insur- (not contract in itself unlawful insurance ance with business Prudential.” Garrett law), under Texas that the money and sub- Jim City called Houston Councilman West- sequently given city official was a moreland at time to ask him about contribution, campaign not a bribe. Gar- obtaining Fidelity for and Prudential upon protestations, rett also relies his initial city employees’ coverage insurance that was open bidding. in the conversations that unknown to him to become for This going initially subsequent meetings agents 2. The defendants were to be indicted 3. All of the of the participants tape-recorded; two of the in the Louisiana with were with the defendants schemes, charges sep- insurance but these were telephone taped also conversations arately brought. dealings The Louisiana were defendants, in accordance with federal trial, although to at the there was not referred procedures. Marinello, testimony to the effect that Vincent primary dealings, actor in the Louisiana present during meetings a few of the agents F.B.I. and Garrett and Moore. talked often to becomes the focus dollars. The defendants contract insurance Montague and Wacks. dealings, although government agents meetings and subsequent disappeared entirely had from (Hauser simultaneous deals other future and prison from his and, part, kept began serving the most because scheme discussed sentence; knew the fact of Hauser’s Moore the jury. his absence to explained but imprisonment, with to meet Council- arranged Garrett Garrett that Hauser was by telling Garrett after the November man Westmoreland sick.) telephoned At a election. November City Council California, in had returned to agents, who Wacks, Garrett, Moore, meeting of the insurance progress order to discuss turned down an offer of Montague, Garrett selection the Council. a fifty that he wanted cash but stated commissions, 11, Moore, Garrett, Wacks agents’ On December percent split of He met at Garrett’s office split Montague again then with Moore. which he would payment to discuss the Houston to discuss commis- again called Westmoreland contract, upcoming meeting City tell- insurance sions and employees’ Houston spend- that he “did not mind Councilman Westmoreland. ing the others Westmoreland, ... we give if it looks like asked how much ing a few dollars they agreed pay suggestion, the works for us.” at Garrett’s have to motivate than at Westmoreland no more $2000 discussions, time of these At meeting. first negotiating City Houston Council the four waited at a hotel evening, for the Janu- That soliciting preparation bids in Westmoreland, Vin- coverage accompanied by of insurance bar ary, expiration Marinello, 25,000 lawyer from New Orleans employees. Without consult- cent city Pru- called Westmore- agents posing independently as who had ing with Hauser on Prudential Insur- land and who had worked dential/Fidelity agents, bid, (See note prepared had itself similar scheme Louisiana. Company ance Montague forget told major companies. supra). four other Garrett did least anything that League (“the paying about Westmoreland Municipal The Texas Montague’s ques- representing evening; response over League”), a commission that, however, tion, West- sought replied cities in Texas that two hundred *6 paid cities understood that he would be bargaining power combine the of the moreland signed. the was Westmoreland in order to favorable insurance cov- once deal obtain Pru- group informed the arrived and erage municipalities, independently for the were, it and, the contract if get reviewed insurance available coin- dential would the for contending companies The out of the five cidentally, adopted plan. Prudential’s contract, third best bid or better. the the the finally signed by City contract Council 26,1979 the League, on December was with Wacks on December Garrett assured contracted with a Texas insurance which the be at approved that the contract would Pru- that in turn contracted with company week; following the meeting City Council (It clear provide coverage. dential to the is however, its vote on postponed the council the nothing had to do with League Coun- City issue for another week. The the Westmoreland, that it efforts to bribe and Municipal favor of the Texas cil voted in it con- independently had selected what on December League/Prudential coverage the lowest coverage sidered the best at 26; for seconded the motion Westmoreland price.) it, the contract and voted for adoption of The against it. two councilmen voted efforts in while primary Garrett and Moore’s agent Moore called day, to ar- next December late November and December were Beverly in Fidelity at the offices would be Wacks range matters so that Prudential tel- Hills, (This is the interstate the new insurance business California. city selected for federal present which the upon call (according ephone that would a commission produce based.) Moore is Act indictment one million Travel bogus agents) of around payment was the contract to be when the other would $5000 Wacks that told come. Moore (although had day voted on that meeting day council at the present
been by Appeals The Issues Raised voted in favor before, at the Council which following by issues are raised contract), of the Prudential appeals: defendants’ $10,000 a couple to commit needed an extra (A) I. Act The in- Travel Jurisdiction: agreed pay Wacks more councilmen. Act, the Travel dictment under 18 U.S.C. conversation, Moore stat- this sum. In the 1) 1952(a)(3) (quoted in footnote should § during room ed that Garrett was dismissed, acquittal or an or- have been call. dered, statute, of this because violation day, left a again Moore called same jurisdiction, may consequently federal returned call. message, and Wacks be on a call so telephone not based him that the contract had Moore then told little nexus with the unlawful interstate activity which did not premium been awarded “facilitate” just $12 within the (of purpose meaning for unlawful agreed which the commission million Act; Further, (B) happenstance Travel ten per- was defendants call to a telephone cent). finds him located at a site another agent called Wacks in California again Moore not for jurisdic- state does furnish basis $10,000 so that asking on December tion or conviction under the Act. off On pay could Westmoreland. Garrett Entrapment (A) Availability II. issues: 5, 1980, January Wacks told Moore that he defense; (B) complains Moore of the $10,000 wanted to when the was be tape of a redacted from which introduction Westmoreland, be- given Councilman overwhelming was inducements of- excised to ensure that company cause the wanted witnesses; fered to Moore 7, Wacks, January On money paid. (C) complains of the exclusion Moore met Montague, Moore and at a Garrett trial some “lack-of-predisposition” court of where and Garrett hotel Houston Moore him; (D) offered Moore con- witnesses given as their share com- $6000 his de- “lack-of-predisposition” tends that missions for the first month. severely by the admis- prejudiced fense was At this Garrett told Wacks that meeting, tapes sion into evidence two conversa- about the he had contacted Westmoreland lat- (the tions between Hauser and Grubbs meeting for the but that Westmore- payoff, which testify), ter called to moreover payment accept
land was too nervous rights since violated his Sixth Amendment agents’ arranged that presence. They as unable cross-examine Grubbs relay a to Westmore- Garrett would code a labor to his characterization of agents’ presence sig- land’s office in the “deal”; (E) con- leader would who ready money nify payoff shows that he was tends that the evidence *7 delivery. a law and the as matter of that entrapped granting erred not his mo- district court Moore, 11, Garrett, Wacks, January On of acquittal. tion for a directed verdict office; and met Garrett’s Montague Outrageous III. conduct: and Garrett left gave Wacks Garrett $5000 that the conduct Both defendants contend message secretary Westmoreland’s a govern- of the degree and of involvement reinforcing in code that the “% inch steel outrageous is so as to violate ment 21, Montague January was in.” called On rights entitle process their due and them Moore; that called the Moore said Garrett dismissal of the indictment. councilman and said that Westmoreland Garrett, Montague “the had steel.” Act Jurisdiction I. Travel 22 to January third met on discuss party business; Moore contend that federal said that West- Garrett and future may Travel Act jurisdiction under the to know moreland but wanted “happy,” was 264 the upon
be out-of-state the predicated solely Municipal League City of Hous- govern- Moore to the phone by only call made involved marginally interstate ton — and, further, Furthermore, agent assert, ment that California commerce. the telephone agent telephone merely call to call was incidental to com- offense, implicate did not “in- present case mission of the all of the ele- tent” to “facilitate” defendants’ “un- ments state crime constituting the of brib- meaning of the ery lawful activities” within were and the crime was “com- call, thus argue plete” Act. The defendants that before the when telephone indictment in this case should have been agreed pay defendants had Westmore- argue dismissed ordered because land for his vote. also that the acquittal They or fed- calls, jurisdiction artificially eral created interstate by was nature of the caused exclu- agents’ use of the California office loca- sively by happenstance the federal location, tion. that the use of They argue agent’s also inter- contributed nothing to marginal- state communications at best scheme have that could not been accom- ly plished call. by involved in facilitation an an intrastate essentially crime, the bribery local and that activity construction urging narrow of the attacked preferably should be under state Travel not encompass Act that this would Act, law and not the Travel which is intend- scheme, “essentially bribery local” the de primarily weapon against ed to be a organ- fendants emphasize “[Ijegislative that histo ized crime. ry limited, of the Act is but does that reveal organized was aimed at crime primarily [it] (A) Interstate Nexus “Facilitation” persons and more specifically, at who reside Requirements in one state while operating managing Rewis 27, 1979, illegal The call activities in another.” of December on which located States, United 808, 811, Travel Act 401 U.S. 91 jurisdic- based S.Ct. Rewis, 1056, 1059, (1971). tion for the which 28 count on the defendants L.Ed.2d 493 convicted, that Supreme occurred under the follow- Court held the Travel Act did ing circumstances, propri- not reach so far as to include the as revealed the taped operation just etors of a local gambling conversations introduced into evidence at trial: Garrett because its had requested Moore call the customers travelled inter- agents to state. The expressed obtain details Court concern that concerning the amount “an premium. expansive of the insurance The Travel would Act alter sensi- Texas, day, same from tive agent relationships, called federal-state could over- Fidelity Wacks at office in extend limited Beverly police resources, federal Hills, California, stating might well situations produce vote on in which ..., the insurance . .. postponed geographic origin contract had been matter of hap- penstance, City $10,000 relatively and that would transform mi- Council nor couple needed to “move” a state offenses into federal felonies.” council- men. at Moore told Wacks that Garrett U.S. S.Ct.
in the room
and needed commitment from
however,
circuit,
this
Subsequently,
later
Wacks.
Court,
affirmed
the Supreme
observed
expansive
the Travel Act’s
language
defendants contend
the inter-
state call did
did not
“crimes
only
‘typically
not “facilitate”
“unlawful
outlaw
those
”
activity” within
associated with the
meaning
Act.
underworld.’
Perrin,
States v.
They argue
purpose
primary
*8
Cir.1978), affirmed,
37,
Act was to
100
highly organized
combat
444 U.S.
S.Ct.
crimi-
Perrin,
311,
nal syndicates
(1979).
criminal
265
activity
performs
unlawful
and thereafter
sufficiently facilitated
call
telephone
state
an act in aid there-
attempts
perform
or
to
jurisdiction.
federal
as to sustain
plan
so
Jones,
909,
v.
642 F.2d
of.” United States
of this
determination
affirming
In
Cir.1981).
(5th
913
the stat-
held that
Supreme Court
court the
Pécora, supra,
Perrin
both
besides
activities
encompassed illegal
ute
Act violation based
a Travel
upheld
courts
organ-
associated
traditionally
those
Perrin
telephone
interstate
call.
single
on a
its concern
crime,
that
explaining
ized
employee
an
conspiracy
to bribe
involved
local nature of
not with the
Rewis was
(who
corporation
of
acted as a
geological
operation,
gambling
intrastate
predicate
informer),
which the cocon-
interstate commerce
the “tenuous
but with
informer
spirators
employed
bribed
50,
Perrin,
at
100 S.Ct.
444 U.S.
element.”
charts from his
exploration
seismic
steal
at 318.
help
up
corporation
and to
set
employer
that, with re
concluded
Court
was
the data. The informer
exploiting
for
“brib
unlawful state
underlying
to an
gard
co-
subsequently
convicted
instructed
“so
1952(b)(2),
18 U.S.C.
ery” activity,
§
geologi-
call an out-of-state
conspirators
is
interstate nexus
requisite
as the
long
maps for
corresponding
to order
cal service
a clear and
reflects
the statute
present,
we need
We stated that
the stolen data.
Congress
part
intent on the
deliberate
that
argument
the defendants’
not consider
in order
the federal-state balance
alter
an
not constitute
obtaining
maps
did
444 U.S.
state law enforcement.”
reinforce
completed
aspect
already
essential
here,
Thus,
bribery
812,
at 1059.
at
91 S.Ct.
“[tjhere
is no re-
bribery agreement,
activity un
unlawful
city
of a
official —the
the use of interstate facili-
that
quirement
of interstate
communication
derlying use
enough
to the scheme: it is
ties be essential
the Travel Act —is
in violation of
facilities
or the use of
the interstate travel
of the statute. See
within the ambit
clearly
easier or facili-
facilities makes
interstate
Pecora,
421
v.
693 F.2d
also United States
580 F.2d at
activity.”
the unlawful
tates
sheriff).
Cir.1982)
of a state
(5th
(bribery
Jones,
Accord,
642
United States
736.
Cir.1981).
913
the nature of “the
analyze
thus must
We
Perrin,
at
nexus”,
444
interstate
U.S.
Pécora,
jurisdiction
Act
Travel
i.e.,
tele-
the interstate
at
S.Ct.
telephone
interstate
call
upon
founded
an
placed
phone call that defendant
defendant,
request
made at the
from the
agent Wacks Cali-
from Texas to federal
with the
(who
cooperating
the sheriff
defendants’
fornia, to consider the
order
proposed
F.B.I.),
discuss details of
call does not sustain
contention
drug
of state
the dismissal
bribery to secure
a violation of
jurisdiction
prove
or
federal
rejected
Perrin and
applied
We
charges.
facilitate,
act, because it did not
the federal
call,
contention
the defendants’
facilitated, un-
incidentally
only
or at most
easier,
bribery
scheme
even if it made
it occurred sub-
lawful
and because
activity,
in-
and incidental” to
was too “fortuitous
state offense
sequent
completed
concluded that
Travel Act. We
voke the
money
the bribe
(even though
bribery
the scheme and
served to “benefit”
the call
call).
telephone
after the
actually paid
ex-
Travel Act no
“we discern in the
incidental occurrenc-
for casual and
ception
the use
punishes
The Travel Act
ones.”
‘happenstance’
es or for
carry
to “facilitate”
interstate facilities
that are
unlawful activities
ing on of
aspect
govern
Aside from
performed,
U.S.C.
“thereafter”
the state
location outside
agent’s
perti
ment
1952(a)
supra),
at note
(quoted
§
call was received
interstate
of when the
activity
unlawful
including the
nently
below), the
will be discussed
(which
him
1952(b)(2). The Act
“bribery”,
U.S.C. §
requesting
case
call in
telephone
travels interstate or
who
anyone
“reaches
incidental
is no more
bribery
to facilitate
funds
facility
interstate
uses an
*9
invoking
fortuitous than the calls
the Trav- which the bribe money
actually
was
paid.
Pécora,
el Act in Perrin and
found to be Moore’s call to
in
Wacks
this case likewise
jurisdiction.
sufficient to sustain
The de-
serves to
jurisdiction
invoke Travel Act
argue
fendants
that the interstate nature of
Garrett,
over his codefendant
who aided
call,
happenstance
a mere
resulting
and abetted in
scheme,
the entire
was
from the location of
government agent,
agents
aware that the
were based in Cali-
special
scheme,
added no
assistance to the
fornia, and was present during Moore’scall.
objects
the same
could have been ac- The evidence further shows that he directed
complished by
intrastate call. This ar-
agents
$10,000;
Moore to call the
for the
gument
implicitly rejected
in Perrin
Perrin,
in
where the defendants instructed
Pécora,
for in those cases the defend-
a participant
out-of-state,
to telephone
“it is
plans
ants’
would have been served equally sufficient that the
caused the
[defendant]
by an intrastate call.
use of interstate facilities.”
ty, because under Texas the crime of isdiction? bribery complete when the defendants agreed pay Westmoreland for his vote. The defendants strenuously contend that Arranging payment bribe, actual jurisdiction contrived, federal because however, undoubtedly made easier the com- the interstate depended element on the fed- scheme, mission of the Perrin, as in just agents’ eral location California to receive where the defendants had already offered the interstate call from Moore. Garrett to bribe the employee, an offense under argue and Moore that the existence of a law, Louisiana but used the interstate call federal crime should not depend upon the exploitation to effect of the stolen data in government’s arbitrary their opin- —and order to pay agreed-upon bribe—a per- ion, inconvenient—out-of-state locale for centage of profits from the scheme. the fictitious insurance agency, and that it We also accept cannot the defendants’ necessary was not or useful to the govern- contention that the call to a government “sting” ment’s operation bribery or to the agent could not “facilitate” the crime. At scheme that be outside the state least by implication, Perrin and Pécora re- on the dates council vote city regard- quire rejection There, of this argument. ing the insurance plan. The defendants the defendants were held properly convict- suggest that it was at best a matter of ed under the Travel attempting Act for to happenstance, “and perhaps, a matter of bribe the sheriff the corporation em- government design”, that the agents were ployee, both of whom were secretly cooper- in California during They this time. urge ating with federal authorities. that this court adopt the standard articulat- ed case, rehearing Second Circuit on Moore’scall to Wacks Archer, States v. 685- (which obtain funds resulted in Wacks (2d subsequently Cir.1973) (emphasis added): giving $10,000) the defendants “when actually benefited plans prosecution the defendants’ federal element in a under arrange payment for the Travel Act solely by Westmoreland in ac- is furnished under- cordance with their cover agreement pay agents, him a stricter standard is applica- vote; for his it thus facilitated the unlawful ble than when the foreign interstate or activity bribery meaning within the activities are those of them- the defendants Act, following and as a consequence of selves.” governmental Jersey solely Because of the nature of in- travelled into New in order volvement, reject- the Second Circuit in Archer make a call to the defendants in New York ed jurisdiction (which returned). establishment of Travel Act the defendants then foreign on the basis of rejected several interstate F.2d at 681. It also the defendants’ phone artificially Vegas response calls. The court discarded as calls to Las that were to a call, government agent created one where plant of misinformation that *10 Pécora, was furnished solely by In both Perrin discussed not undercover above, the similar argu- defendants raised is agents question any and there no of concerning governmental ments whether attempt jurisdiction.” to contrive the interstate improperly supplied agents (emphasis added).5 at 424 in prosecution. nexus the Travel Act Perrin do not expressly Pécora and thus Perrin, the set forth the Archer stan- court the adopt reject or Archer “stricter stan- defendants, and urged by the noted dard testing sufficiency dard” the of an in- for jurisdiction that in Perrin had been estab- involving government terstate nexus of indictment that lished one count the agents. In instances when the interstate specified to a third par- an out-of-state call by telephone nexus is furnished a call to a the ty coconspirators. made one of The do, how- government agent, these decisions considered, however, court also the Travel ever, the to the require court scrutinize jurisdiction depended count in which Act apparent reasons for its ac- government’s phone map the interstate call to upon the agent’s tions and forbid government government informer, the made store purpose movement out-of-state for the sole that it not “condemn the determining could manufacturing jurisdiction. Act of Travel government fact that the informer was in- in volved the interstate element case, In the no evidence at 736. It found crime.” 580 F.2d that agents initially up shows that the set Fideli informer was a “follower” in the scheme in or there ty arranged California be coconspirator and that selected the another when Moore and needed to tele maps. out-of-state source of the This court for phone solely them additional funds for warned, however, that although there was an interstate nex purpose contriving jurisdiction no artificial manufacture of us. had agents established base present, a informer not government could California because Hauser’s connections .. . “at behest of uni- and, there decided to branch subsequently, element laterally supply interstate of a into out-of-state from California Louisiana bribery thereby local scheme and transform and Texas because their activities in Cali into a Act for Travel violation: exam- [it] impaired by publicity fornia were that Hau ple, government’s could not at the di- [he] ser This [go rection to call one informer. merely out state] operation, out-of-state com coconspirators.” preexisting Id. fact bined with the defendant Pécora, sheriff, acting aware of interstate Moore was nature government, message relayed had (fictitious) insurance agents’ business defendant, out-of-state, while she was agents when he himself telephoned arrange call him to the details of the California, is to show that sufficient planned bribery. The court found that solely interstate element was not furnished attempt there no create or manufac- that the by government govern jurisdiction artificially ture federal under attempt jurisdic ment did not to contrive Act, ample the Travel evidence existed Bagnariol, tion. aiso United See States trial support court’s determination Cir.1981) (the 896-99 requested sheriff the defendant to government agent’s residence a state call before he learned that she was out-of- other than that of the defendant was not “[ujnlike state. The court concluded Archer, inter- solely interstate in this case established manufacture an element rejected agent reached Id. at Fi- 5. The Pécora court then the Archer could be there. jurisdiction permitting to be
nally,
rejected
rationale for
the court
as a “casual and inci-
government agent’s
based
call from Par-
on the
govern-
dental occurrence”
call
(see
supra);
contrary to
is
note 4
the Second
agent placed
ment
to the defendants while he
Circuit,
the Travel
this court concluded
pursuing
investiga-
another
“casual,
incidental,
hap-
except
Act did not
tion
Paris.
Id.
682-83.
penstance” interstate contacts.
element,
prior
state
but was a result of a
entrapment
when
is at
issue the focal
operation).
undercover
point
inquiry
is on the predisposi-
tion of the defendant.
See
Because we find that
interstate nexus
*11
Russell,
433,
411
at
U.S.
93 S.Ct. at
artificially
here
was not
created
similarly
Thus,
1643.
a defendant who wishes to
jurisdiction,
invoke federal
and does not
assert an entrapment defense must ini-
the standards of Perrin
infringe
and Pé-
“
tially come forward with evidence
‘that
cora,
jurisdic-
we conclude that Travel Act
the Government’s conduct
tion
created a sub-
exists.
stantial
risk that
the offense would be
Entrapment
II.
Issues
by
committed
a
other
person
than one
”
ready to commit it.’
United States v.
trial,
and now on appeal, the defend-
Dickens,
441,
(5th
524 F.2d
444
Cir.1975)
urged
they
ants
were innocent by rea-
(quoting
v. Mosley,
United States
496
son
government entrapment.
In our en
1012,
(5th
F.2d
1014
Cir.1974)). Once the
opinion
Webster,
banc
United States v.
burden,
defendant has
346,
carried this
649
348-49
Cir.1981),
we sum-
must,
government
if it is to prevail, prove
the principles
marized
relating
de-
entrapment:
beyond
fense of
reasonable doubt that
the de-
fendant was predisposed to commit the
recognized
First
Supreme
Court
charged.
Dickens,
crime
United States v.
States,
435,
v. United
Sorrells
287 U.S.
Notwithstanding Moore, the forceful argu- of Garrett or it acquit must such ments to the it contrary, is clear that defendant of the charged offense.6 By con- jury charge (to parties object The appeal) part: which the do not now on reads defendants, jury rejected Availability A. of the Defense victing the entrapment defense. government The contends that none of shoujd contentions the defendants’ of error relating the issues raised appeal, On because Garrett and Moore be considered are: entrapment incorrectly permitted by district issue, A. As a threshold court to raise before the the defense of that, error was committed contends even if contends entrapment. the defend- respects in the contended cannot, as a mat- that a criminal defendant ants, harmless. The ar- it was law, unless he entrapment ter of assert defense was not gues entrapment committing offense. admits the facts available to the defendants under reply and Moore that their defense *12 therefore the district court presented, and they that lacked the intent to bribe Council- is not inconsistent with to the man Westmoreland submitted defense improperly that, activity ap- if their the defense jury- with the proaching Westmoreland for help of the introduction complains B. Moore contract and mak- subsequently Prudential from which was excised tape of a redacted contribution is indeed crimi- ing campaign offered Moore overwhelming inducements were nonetheless en- nally culpable, they government witnesses. by so trapped doing by government into by agents’ of the exclusion inducements. complains C. “lack-of-predisposi- the trial court of some circuit, general rule is this him. by tion” witnesses offered not may deny that the defendant com mission of the acts on which criminal liabili “lack-of-pre- D. Moore contends that his simultaneously and claim ty predicated is preju- defense was disposition” severely entrapped perform that he was to those of two diced the admission into evidence appears “The rationale for the rule to acts. of conversations between Hauser and tapes which deny very upon be that to acts (the testify), Grubbs latter not called to prosecution predicated is and at moreover violated his Amend- which Sixth entrap to the defense of plead same time to cross-ex- rights ment since he unable ment, the acts charged which assumes that his characterization of amine Grubbs to committed, is too inconsistent.” Unit Moore as a labor leader who would “deal”. Greenfield, 179, v. 554 F.2d 182 ed States that E. Garrett contends the evidence (5th Cir.1977). early The decisions on this entrapped shows that he was as a matter of that for reasons a recognized practical issue law court erred in not and district the sub generally deny could not defendant verdict granting his motion for directed charge entrapment, and raise be stantive cases, proving most a defendant acquittal. cause in law, they defendants assert that were the the mere fact that entrapment provide appears agents victims of as to the offenses what to be a favor- charged Entrapment in the indictment. oc- opportunity entrapment. able is not For ex- originates design curs when the criminal ample, entrapment it is not for a implant officials of the and agent pretend else and to to be someone to person dispo- in the mind of an innocent offer, through directly an informer either or alleged to commit the offense and in- sition decoy, engage in an unlawful or other to they may duce in order that its commission officials are transaction. Law enforcement prosecute. person previous Where a has no artifice, precluded utilizing stealth not from law, purpose or violate the but is intent decoys stratagem, such as the use of persuaded or law enforcement induced agents, apprehend undercover in order crime, officials or their to commit a he activities, pro- persons engaged in criminal entrapment, the law as a is victim of they merely opportunities afford vided that policy matter of forbids his conviction of the of- or facilities for the commission such a case. fenses, ready predisposed or to com- one hand, person already the other where a On mit it. willingness has the readiness and to break 270 per the criminal act in that should be presented not commit that he did case] [than mitted,” id., prove subsequent also 237 F.2d consistently could not 173— act recognized requirement him to commit the decisions have
government induced
defenses; see,
v. United
“where a
consistency
occurred. Sears
denies
Cir.1965);
139,
(5th
143
have to take an incon
States, 343 F.2d
does not
defendant
States,
169,
precluded
237 F.2d
not
from
Henderson v. United
he is
position,
sistent
v.
Cir.1956).
defense,”
also Hamilton
(5th
173
See
United
invoking entrapment as
611,
(5th
States, 221
Cir.
606,
Harrell,
(5th
United
436 F.2d
v.
1955) (defendant permitted
deny charge
Nevertheless,
this court has de
Cir.1970).
noted,
court
entrapment;
and assert
en
generally
“the defense of
termined
however,
entrapment
the defense of
is unavailable unless the defend
trapment
was commit-
that the act
“assumes
upon
prose
the facts
which the
ant admits
ted”).
v. Cross
cution is based.” United States
man,
607,
(5th Cir.1981).
663 F.2d
See
Henderson, however,
In both
Sears
Webster,
346,
v.
649 F.2d
also United States
recognized exceptions
gen-
this court
(en banc) (dicta);
(5th Cir.1981)
351 n. 10
permitted dual defenses
eral situation and
285,
States,
379 F.2d
McCarty
facts,
where,
“proof of
particular
under the
denied,
(5th Cir.), cert.
389 U.S.
286-87
contrary
repugnant
entrapment
not]
[is
(1967); Beatty
271
Cir.1980)
1301,
(5th
(noting
1303 n. 2
his alternative defense that “he had no in-
circuit,
in this
to violate the law because he
“disarray” of decisions
tention
did
“controversy” given
was,
addressing
customary
not
what was
and what
in his
but
case).
of that
We find that
opinion,
the facts
tion made after the council voted to B. Introduction accept plan the Prudential Insurance contends that the trial court Moore propounded by Municipal League. the Texas play him to refusing permit erred in to judge We with the trial that these agree of a jury portion before defenses, on iden alternative both founded him meeting of a between tape-recording facts, inconsist impermissibly tical are not Hauser and informant ent. govern in which the agent F.B.I. Wacks $600,000 pay offered to Moore compel agents after do not ment Two cases Greenfield commissions, use their influence to contrary analysis. us to In United in to adopt Law Brooks, (5th Georgetown son in place v. 611 F.2d Moore’s States president to Moore become Cir.1980), Greenfield, help that citing we stated School Engi Operating Union of of the defendant’s defense of en- of International light union, use of neers, in return for Moore’s firearms it is trapment illegally, to sell to obtain influence political the court consider and business doubtful whether should rulings prejudicially hampered for Prudential. Moore that these insurance contracts re- was able to cross-examine his defense on that issue. inducements, these but he garding all of regard The first contention is with to ten necessary jury for the to argues that it was witnesses, officials, public who were listed version for their directly taped hear testimony they that had give to be called to predisposition. his lack of consideration of dealings period with Moore over a had suggests ruling that the trial court’s political in the and labor fields and years on a erroneously founded conclusion any that had never known him to do that of these inordinate induce- evidence act, improper, illegal or immoral or to at- respect not admissible with to ments was any to commit offense in the nature tempt predisposition. issue of time, during this bribery. By presenta- court disagree. We The trial stated case, eight at least wit- tion of the defense it of the redacted playing disallowed Moore, already had testified that nesses it also contained references portion because had never taken a bribe knowledge, their to a insurance deal in Austin that proposed had an reputation. unblemished de- other individuals and that was implicated nying proffered testimony, the district subject not the of the offense. Be- alia, judge, inter characterized these ten- cause opportunity Moore had the to elicit all dered witnesses as “additional character of the desired information on cross-exami- witnesses” and ruled that he had already nation, prejudiced by he was not the trial ample “allowed character witnesses for the tape court’s determination to exclude kind.” to find case this We are unable itself. abuse of district court’s discretion Moore also urges because the additional, allow under Fed.R.Evid. 404 to permitted another play testimony cumulative of this nature. Ac- part tape, of the same Fed.R.Evid. 106 re cord, Haynes, United v. 554 F.2d States that when one quires party part introduces Cir.1977). recording, of a an adverse writing party may any introduction of other require part Additionally, objects Moore also recording “ought fairness rejection proffer the trial court’s of a be considered with it.” contemporaneously testimony lawyer, Ray, pre of a who was doctrine,” however, “completeness This does pared testify that Moore consulted him not require portions introduction of of a legality accepting about insurance statement that are neither relevant to nor his efforts regarding commissions for explanatory passages. the admitted City argues of Houston contract. Moore Marin, 84-85 this evidence would have shown his *15 (2d Cir.1982). Here, portion the redacted by desire to abide the law and thus would contained irrelevant (excluded matters at proven predisposition have lack of to com part least in due to possible prejudice charged mit the offense. Moore had al by including wrongdoings Moore that were trial, however, ready testified at that he subject trial), not the of the and Moore attorney had consulted with an who had through elicited the relevant information him that it was for him to receive legal told cross-examination, such that “fairness” did commission, the so that the substance of tape. not of the entire require playing testimony was Ray’s proposed before Moreover, the con jury. attorney’s opinion Exclusion of Wit- “Predisposition”
C. receipt of the com propriety cerned nesses Moore, by person missions not licensed to insurance; At the conclusion of the subject defendant sell while the at issue at testimony long legality payments Moore’s at the close of this the trial was the trial, Westmoreland, attorney’s Moore’s coun as to which the the district court denied all, sel additional witnesses tendered on the is if at relevant. marginally, was opinion court did not “predisposition.” sue of Moore contends We conclude that the district excluding Ray’s objection proffered purpose tes- for discretion abuse its showing why government’s witnesses timony. Moore, the relevant approached because Tapes Introduction Grubbs D. their admission —that purpose had Moore government agents approached the introduc Moore contends on Grubbs’ recommendation —could have conversa taped into evidence of two tion proved by testimony to this effect without govern and tions between Harold Grubbs lengthy many embellishment Hauser, Joseph witness is reversible ment prejudicial references to Moore in the tapes contain error because the uncross-examined statements of Grubbs prejudicial hearsay concerning rep Moore’s that Moore was one who would “deal”. These contain Grubbs’ asser tapes utation. Moore, official, a union would Fed.R.Evid. tions that as Hauser obtain likely help be a candidate issue, rule expressly We need on this At many points insurance business. however, error, if it because there was describes Moore as someone tapes, Grubbs place, harmless. In the first the trial court will “deal”. who expressly repeatedly jury cautioned trial, argued At introduction credence to against giving Grubbs’ state- statements about his character was of these over Additionally, govern- ments. Webster, by United States v. prohibited hearsay objection, ment’s the district court Cir.1981) (en banc), in which (5th F.2d 346 Moore to permitted testify length as to hearsay this court held that evidence of representations Grubbs’ to him about reputation generally is inadmissible for the Prudential transaction and about Grubbs’ predis- to show the defendant’s 187 et seq., Hauser,. dealings p. R. rebut an position entrapment and thus de- which clearly developed Moore’s defense urges fense. Moore also that his Sixth thought doing that he he was ille- nothing were vio- rights Amendment confrontation when, gal induced lated because Grubbs unavailable he went to work to earn agents, commis- respect cross-examination with to the al- politi- sions for himself from Prudential and legedly hearsay statements. cal for labor its contributions friends. tapes Before introduction of the contain- even more in favor of Weighing heavily statements, ing objectionable the trial error, the harmlessness of the Moore’s “in- gave cautionary court instruction to the predisposition tent and to commit the acts testify Grubbs was unavailable to established largely by recorded and that his statements were not admissible evidence of his own statements.” character, to show only Moore’s bad but Howell, show Hauser Moore. The why approached Cir.1981) (holding virtually under identical warning during court reiterated this and contentions that the er- circumstances final jury charge. government argues, harmless). ror was The Grubbs-Hauser alia, tapes constituting inter — tapes played day on the ninth of evi- day jury’s proceedings half —were during twenty-seven days dence taken properly admitted for the limited purpose trial. after these Evidence adduced to show why government agents acted in the form of Moore’s con- tapes, primarily meeting did in with Moore. *16 govern- versations with Garrett and the agents, readily Grubbs’ statements about the defendant ment showed that Moore joined Moore in the insurance tapes Grubbs-Hauser immediately hearsay, stage inadmissible both as to his active at of the clearly every scheme and was Webster, record, supra, the entire we predisposition, Considering see and as events. by coconspirator (since declarations a are unable to find that the Grubbs’ refer- approached yet join tapes, jury had not even been to to Moore in the which the ences by doubt that the cautioned the district alleged conspiracy). repeatedly We was truth, for their caused statements were admissible over Moore’s court not to credit 274 any appreciable degree to to
prejudice could determine the existence of predisposi- defense. entrapment Moore’s tion in the engage to transactions that re- sulted in the Travel Act offense. As stated E. as a Matter of Law Entrapment Dickens, v. supra, United States at 445: that, regardless contends Garrett guilt, jury may appropriately determination of he was consider the jury
entrapped
argues
as a matter of law. He
conduct and
defendant’s
statements sub-
government
proof
that the
failed to offer
sequent to his initial contact with the
engage
that
in a
predisposed
Garrett
proof
as well as
agent,
his
bribery-type offense and that his acts were
state of mind before the contact was
than
product
predisposition
of this
rather
made, to determine whether the accused
activity
government agents.
“unwary
should be classified as an
inno-
that he
particular,
argues
initially
Garrett
cent” or
criminal.”
“unwary
an
accept any payment
refused to
from the
Because the
raised sufficient
agents,
government agents
that he told the
place
predisposition
evidence to
the issue of
anything illegal
that he did not wish to do
jury,
objection
before the
and there is no
fraudulent,
or
and that
instruction,
jury
“usurp
we do not
that he make
suggested
the contri
role” to determine
jury’s proper
whether
trial,
bution to Westmoreland. At
Garrett
entrapment
present.
United
v.
States
testified that he sought
political
to use his
Anderton,
Cir.
influence
and that he
only,
told Westmore
1982). The
presented
evidence Garrett
pay-off
political
land
was a
contri
characterizing
his activities as motivated
bution made after the City Council vote on
overwhelming
innocent intent
is not “so
the insurance contract.
‘patently
that it is
clear’ or
‘obvious’
“It is well-settled that
the question of
as a matter
entrapped
of law.”
[he]
raised,
entrapment,
fairly
if
is one for the Lentz, supra,
duction evidence that government agents Outrageous induced them to commit III. Government Conduct Having put offense. forward Moore, Garrett, joined argues entrapment, issue of argues degree that the conduct and of involvement there was predisposition no evidence of government agents in this case is so thus entrapment existed as matter of law. outrageous process guar as to violate due disagree.
We it Although is unclear from antees of the Fifth He as Amendment. taped meetings serts, defense, first of the whether entrapment as in the Hauser, Garrett was offered any cash the crime allegedly committed would not .Wacks or Montague, he discussed a 10% have occurred but the actions of the Moore, commission split originated government agents. Additionally, Garrett calling idea of Councilman Westmore- actions created urges government’s land. Subsequently, outrageous City stated he was risks of harm: that the opposed “spending a few dollars ... purchased policy Houston insurance to motivate the works for on the employees part us” and discussed its based least “deliveries” of govern funds to Westmoreland. efforts of the defendants and the activities, These along with Moore and inferi- agents (risking obtaining Gar- ment their deals,” rett’s discussion of life was prior coverage) “cuts on and that Garrett’s ae government’s constituted endangered evidence from which a because
275
Marcel- participant
him with a Carlos
in a scheme to manufacture an
entangled
tivities
lo,
leader,
was motivated
illegal drug
exclusively
an underworld
who
and
alleged
be
Hauser
an interest
in the
allegedly
by
money.
had
the desire to make
662 F.2d at
Nicoll,
scheme.
government’s
insurance
387.
In
conduct
egregious
not to be
where the
was found
States, 425
Hampton
In
v. United
U.S.
merely
DEA
initiated contact with
de-
1646,
(1976),
484,
company
GARWOOD,
Judge, Specially
Circuit
the defendant
to manu-
drugs,
urged
Concurring:
after he had can-
amphetamines
facture
I
Tate’s excellent
Judge
concur in all of
produce
co-
supplies
his order
celled
except Part
II.A.
opinion for the Court
the case
caine. The court determined
Defense”).
I
(“Availability
thereof
ox
the “outer limits” to which the
presented
concerning
do not reach the difficult issues
go
attempts
could
in its
to fer-
entrap
of the defense of
availability
crimes, but found
prosecute
ret out and
opinion
in Part II.A. of the
ment dealt with
the circumstanc-
totality
that under the
of
issues is not
because resolution of those
es,
was a
active
predisposed,
the defendant
1650,
491, 494,
enterprise
magnitude
solely
of this
formed
necessary to and does not affect the disposi appeal.* this
tion of STEPHENS,
Alpha Otis O’Daniel
Petitioner-Appellant.
v. Bonner, Jr., Athens, Ga., James C. Rich- ZANT, Superintendent, Orleans, La., Walter Shapiro, ard Erwin New Respondent-Appellee. plaintiff-appellant. Boger, Berger, John C. Joel Jack
No. 79-2407. Green- Nabrit, III, Fins, berg, James M. Deborah of Appeals, United States Court Amsterdam, Anthony City, G. New York Fifth Circuit.* Legal Defense and Educational for NAACP Fund, Inc. Sept. 1983. Jr., Hill, B. Atty.
William
Senior Asst.
Ga.,
Gen., Atlanta,
for respondent-appellee.
Before
A.
RONEY
THOMAS
CLARK,
INGRAHAM,
Judges,
Circuit
Judge.
Senior Circuit
PER CURIAM:
Court,
judgment
of this
which
prior
corpus
reversed
denial of habeas
relief
sentence,
state death
has
Georgia
been reversed
the United
Su-
Court. Zant v.
preme
Stephens,-U.S.
-,
(1983).