508 F.2d 146 (10th Cir. 1975), 74-1140, United States v. Spivey

Docket Nº:74-1140.
Citation:508 F.2d 146
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James C. SPIVEY, Defendant-Appellant.
Case Date:January 06, 1975
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 146

508 F.2d 146 (10th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,


James C. SPIVEY, Defendant-Appellant.

No. 74-1140.

United States Court of Appeals, Tenth Circuit

January 6, 1975

Submitted Sept. 12, 1974.

Certiorari Denied April 28, 1975, See

95 S.Ct. 1682.

Page 147

Hugh A. Burns, Denver, Colo. (Pamela A. Ray and Dawson, Nagel, Sherman & Howard, Denver, Colo., on the brief), for defendant-appellant.

Arthur H. Bosworth, Asst. U.S. Atty., Denver, Colo. (James L. Treece, U.S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, [*] District Judge.

LEWIS, Chief Judge.

James C. Spivey was charged in a two-count indictment returned against him and another, with knowingly and intentionally distributing heroin in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Following a jury trial in the United States District Court for the District of Colorado, at which trial his sole defense was entrapment, Spivey was convicted on both counts and was sentenced to concurrent terms of six years' imprisonment on each count. Spivey now appeals from the resultant judgment, contending principally that the evidence established the defense of entrapment as a matter of law and that, in the event such defense was not so established and

Page 148

maintained, the conduct of a government informer was so outrageous as to be violative of the judicially-imposed doctrine requiring fundamental fairness in governmental activity in the detection and prosecution of crime. Some of the facts may be summarized, others require detail.

Leaving aside, for the moment, any consideration of the conduct of the informer, we conclude that the government firmly established its case. Government agents, introduced to defendant by the informer, made two separate buys of heroin from defendant, out of the presence of the informer and after negotiation with defendant. Defendant's present appellate claim must, therefore, be founded upon the informer's actions which preceded the sales, made on August 23 and 29, 1973, for which defendant now stands convicted.

Defendant first met the informer, Redman, in early August, 1973. Defendant had been released from prison in the spring of that year, having served a term for robbery 'to get drugs.' Redman was a paid and professional informer. He received $300 compensation in the case at bar and had participated in his 'profession' in at least one hundred cases during the preceding four years. Redman posed as a dealer in illegal drugs, living in and operating from an apartment in Denver, Colorado.

Soon after meeting Redman defendant moved into Redman's apartment, quit his job on August 18, and thereafter shared Redman's life style and purported 'generosities' in numerous ways. Defendant paid no rent and had free and ready access to quantities of marijuana that he used at will. Redman stated and testified that such marijuana (some seven ounces) was left with him by prospective sellers as samples. Redman also held several pot parties in the apartment with marijuana being furnished to defendant and to some neighbors. Redman actively hosted these parties in order to obtain the trust and confidence of defendant and others and to establish the pretense of being a dealer in drugs. Redman also supplied food to defendant and loaned him some money. Undoubtedly Redman's affirmative actions were successful in obtaining defendant's friendship and trust.

The role of the informer is indeed dirty business, but, as many before us have said, so too is heroin. And in this regard defendant is no innocent. The sources for heroin were defendant's own, and his predisposition to engage in drug activity was in no way forced.

Concentrating on the fact that the informer's possession and distribution of marijuana was unlawful, defendant now argues that Redman's conduct was so outrageous that the subsequent prosecution constitutes a violation of the principles of constitutional due process. Thus, defendant continues, the government should have been precluded from invoking the judicial process and obtaining defendant's conviction, and thus we must find that defendant was entrapped as a matter of law.

The same argument was made in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, in which the government's undercover agent had supplied Russell, the defendant, with a scarce chemical required for the defendant's manufacturing of methamphetamine, a controlled substance. The Court acknowledged generally the existence of such a defense and suggested that a proper case for its application would arise where the government's activity...

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