U.S. v. Benveniste
| Decision Date | 11 November 1977 |
| Docket Number | No. 76-3562,76-3562 |
| Citation | 564 F.2d 335 |
| Parties | 2 Fed. R. Evid. Serv. 793 UNITED STATES of America, Plaintiff-Appellee, v. Robert BENVENISTE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Donald M. Re, Los Angeles, Cal., for defendant-appellant.
J. Stephen Czulecer (argued), Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court For the Central District of California.
Before BARNES and GOODWIN, Circuit Judges, and JAMESON, * District Judge.
Appellant, Robert Benveniste, was convicted in a jury trial on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and four counts of possession of cocaine with intent to distribute and distribution in violation of 21 U.S.C. § 841(a)(1). Appellant claims error in (1) the exclusion of testimony relevant and crucial to his defense of entrapment; (2) admission of hearsay testimony by a Government informant; (3) exclusion of the results of a polygraph examination; and (4) exclusion of exculpatory psychiatric testimony.
We conclude that the exclusion of the polygraph results and psychiatric testimony was within the sound discretion of the trial court, but that the court erred in excluding testimony of a defense investigator with respect to his interview with a third party, while permitting a government informant to testify as to statements allegedly made by the same person.
Appellant's defense of entrapment centers on the statements and conduct of Cheryl E. Wyman, a paid informant for the Drug Enforcement Administration (DEA). Wyman had worked for the DEA as an informant on a fee basis on five or six prior occasions. In March, 1975, she took a taxi driven by Larry Mailloux. She asked Mailloux about acquiring cocaine. They arranged to meet socially the next day. They spent the day at the beach and in the evening they spoke again about cocaine. Wyman told Mailloux she was working for people from Texas in the land development business who wanted to obtain cocaine. Wyman subsequently moved in with Mailloux and continued to ask him about obtaining cocaine.
Some time later Mailloux put Wyman in contact with Rachel Meek. Wyman met Meek at Meek's apartment in the late evening of April 2 and early morning of April 3. Wyman, over defense objection, testified that Meek told her that some people who "do the large quantities" of cocaine would soon arrive. A short time later Howard Tabb and appellant arrived. Wyman testified that Meek introduced the two as "heavy dealers".
According to Wyman, appellant said he had sold cocaine before and offered to sell her some. She testified that he brought out a sample case which contained different grades of cocaine and then he, Tabb and Meek "snorted" some. On cross-examination Wyman admitted that she told appellant that she had friends who were land developers from Texas who wanted to buy cocaine. Appellant, who had a real estate certificate, gave her his business card, which indicated his profession, and, according to Wyman, told her to call when she made contact with her friends.
Wyman delayed in calling appellant. Instead, the next day, after she met with DEA Special Agent Steve Jennings, she called Tabb and introduced him to Jennings. Jennings and Wyman then went to Tabb's apartment and purchased cocaine. Negotiations ensued over a larger deal, but no agreement was reached.
Neither Jennings nor Wyman had ever heard of appellant prior to the meeting in Meek's apartment. Jennings indicated no interest in pursuing him, so Wyman proceeded on her own. She called appellant and told him her friends were still interested in obtaining cocaine. They met to discuss this and other matters. Three days later Wyman introduced appellant to Jennings and another agent, Creason, as her friends from Texas. The agents showed appellant they had the money required to pay the purchase price, and appellant showed them a sample of the cocaine, which they tested and found satisfactory. On the following evening appellant met again with the agents and gave agent Creason a black vinyl case. Creason left to test the substance contained in the case, found it was cocaine, and ordered another agent to arrest appellant. The vinyl case was later found to contain 447.7 grams of 20.7 percent cocaine.
Appellant did not deny that he possessed the cocaine or that he intended to distribute it to Wyman's "friends" from Texas. He claimed, however, that he had no predisposition to traffic in narcotics, that the idea was implanted in him by the informant Wyman, who convinced him that by doing this favor for her land developer friends he would gain their confidence and thereby open the door to work for them as a real estate agent in future land transactions in Southern California. He testified that although he was reluctant initially to engage in this illicit traffic, he was at the time having great difficulties in his chosen vocation because of depressed real estate market conditions. The prospect of doing business with Wyman's friends eventually made him lose his "moral compass".
His version of the events differed substantially from that of Wyman. He testified that on the night he and Tabb met Wyman, it was Tabb who had the sample case and who offered to sell cocaine. According to appellant, Tabb left at one point to obtain more drugs 1 and Wyman engaged him in conversation about her Texas friends who were trying to expand their land development business into Southern California. She told him it was too bad he could not obtain cocaine for them to gain their confidence. Later, after further dealings with Tabb ended, Wyman called appellant to say her Texas people were upset about not getting cocaine and were about to return to Texas. He testified that at that point he began to think about getting the cocaine. He contacted Leonard Grossman who said he could supply it to him and then met Wyman again. At Wyman's urging he met with her land developer friends. He testified that he mostly talked about land development in order to impress them with his knowledge, but they were concerned about cocaine. Eventually he agreed to the transaction in order to obtain their trust.
To support his version of the events, appellant called a number of witnesses who testified that appellant had talked to them about real estate transactions which he was about to engage in with out of state developers. He also presented testimony with respect to his reputation for truth and honesty. 2
The defense also tried in various ways to introduce evidence from Mailloux, Meek, and a psychiatrist, Dr. Seymour Pollack, to corroborate appellants' claim that he had no predisposition to commit the offense charged. A private investigator, LaJeunesse, would have testified that Mailloux told him that Wyman had offered Mailloux money to set up a cocaine deal. Mailloux could not be found at the time of trial. The court refused to permit LaJeunesse to testify as to statements made by Mailloux.
Meek was called to the stand, out of the presence of the jury, to testify on behalf of the defendant. She refused to testify and asserted her right to remain silent under the Fifth Amendment. The court denied appellant's motion to grant her immunity. The defense then made an offer of proof that she had told LaJeunesse that Wyman had offered her $1,000 to set up a cocaine deal, that Wyman had snorted cocaine at her apartment, that it was Tabb who displayed the vials of cocaine, and that appellant took little part in the conversations. The court, likewise, refused to permit LaJeunesse to testify as to statements made by Meek.
The defense offered Dr. Pollack as a psychiatrist who had examined appellant and was familiar with the facts and circumstances surrounding the drug transaction. Dr. Pollack was examined outside the presence of the jury. He testified that he had formed an opinion as to appellant's predisposition and susceptibility to commit the offense charged. His opinion was that appellant was not predisposed to drug dealing prior to meeting Wyman. The court found Dr. Pollack's testimony "confusing" and refused to admit his testimony.
Appellant underwent a polygraph examination and the results indicated that he was truthful when he said he had not sold cocaine before April 7, 1975. At the time of trial, he made a motion to introduce the results of that examination. The court denied the motion.
In United States v. De Betham, 470 F.2d 1367, 1368 (9 Cir. 1972), cert. denied, 412 U.S. 907, 93 S.Ct. 2299, 36 L.Ed.2d 972 (1973), this court indicated that while expert testimony relating to polygraph tests may be admissible, the district courts have wide discretion in refusing to admit the testimony. In United States v. Marshall, 526 F.2d 1349, 1360 (9 Cir. 1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976), we held:
With the polygraph's misleading reputation as a "truth teller," the widespread debate concerning its reliability, the critical requirement of a competent examiner and the judicial problems of self-incrimination and hearsay, a trial court will rarely abuse its discretion by refusing to admit the evidence, even for a limited purpose and under limited conditions. (Citing United States v. Demma, 523 F.2d 981, 987 (9 Cir. 1975) (en banc)).
We find no reversible error in the court's decision to exclude the polygraph results.
Appellant argues that the court's refusal to admit expert testimony concerning his psychological susceptibility to the inducement utilized by the Government and his lack of predisposition to commit a criminal offense was prejudicial error. Although there is some authority that expert testimony on the issue of predisposition may be admitted, United States v. Mosely, 496 F.2d 1012, 1017 (5 Cir. 1974),...
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