U.S. v. Lane
| Decision Date | 30 May 1978 |
| Docket Number | Nos. 76-1717 and 76-1718,s. 76-1717 and 76-1718 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Fred Arthur LANE, III and William Kent Jones, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kenneth A. Senn, Aspen, Colo., for defendant-appellant Lane.
Thomas T. Crumpacker, Aspen, Colo., for defendant-appellant Jones.
Rodney W. Snow, Asst. U. S. Atty. (James L. Treece, U. S. Atty.), Denver, Colo., for plaintiff-appellee.
Before SETH, Chief Judge, and LEWIS, Circuit Judge, and BRIMMER, * District Judge.
Defendants appeal from a judgment of the district court entered on a jury verdict of guilty in a prosecution for distribution of cocaine. 21 U.S.C. § 841(a)(1). On appeal defendants claim numerous errors, some claims being made jointly and some individually. We begin by addressing defendant Lane's claim that the evidence was insufficient to prove his guilt beyond a reasonable doubt.
Viewing the evidence in a light most favorable to the government, as we must, the undercover agent's testimony established that his first discussion with Lane about this transaction was on February 24, 1976. On that date Lane suggested he and defendant Jones had a cocaine deal they thought the agent would be interested in. Lane suggested that the agent discuss the details with Jones and Jones subsequently handled the negotiations on price and amount. Lane's next involvement was on February 26 when Jones told the agent over the phone that he and Lane would deliver the drug in Denver by placing it in a van parked at the Denver Airport. After the agent delivered the purchase money to Jones, the agent was directed to the van and inside found a paper bag containing white powder. Lane appeared at that time and asked the agent if he had found the bag and if it looked alright. Both Lane and Jones were arrested at the scene after the agent performed a chemical test on the powder in the bag which indicated the presence of cocaine.
We believe the above evidence was sufficient to find defendant Lane guilty beyond a reasonable doubt of distributing cocaine. Under the statutory definition, "distribute" means "actual, constructive, or attempted transfer." 21 U.S.C. §§ 802(11), 802(8). The testimony of the government agent established Lane's participation in the transfer of cocaine. The fact that the testimony was largely uncorroborated is not significant in this context because we have previously held that the testimony of an undercover agent alone is sufficient to convict under 21 U.S.C. § 841(a)(1). See United States v. Martin, 10 Cir., 526 F.2d 485, 486.
The second issue requiring our consideration is one raised by both defendants. Error is claimed in comments made by the prosecutor in closing argument. 1 Defendants argue the government attorney attempted to bolster the credibility of his principal witness by giving his personal opinion of the agent's trustworthiness and by associating the testimony with the U. S. Attorney's office. Defendant Jones moved for a mistrial based on the comments but the motion was denied. We believe the district court was correct.
Although we have in the past ordered a new trial on the basis of prosecutorial misconduct, the cases in which it has occurred exhibit substantially more serious misconduct than occurred here. See, e. g., United States v. Ludwig, 10 Cir., 508 F.2d 140. Indeed, from a reading of the record we find the statement which defendants claim is most objectionable (see note 1 supra ) somewhat ambiguous. Under these circumstances, accompanied by the fact that a cautionary instruction was given negativing any improper inference the jury might have drawn, we do not believe reversible error exists.
In a third allegation of error, defendant Jones argues he was prejudiced in his defense by the failure of a government informant to appear and testify. Jones argues the informant would have aided in establishing an entrapment defense. The district court denied a continuance when the informant failed to appear on the grounds that defendant had not shown a reasonable likelihood of establishing entrapment. On a motion for new trial after the verdict the informant did appear but claimed the fifth amendment privilege as to all questions. The district court denied the motion for new trial, again deciding that no evidence of entrapment was alleged and, because the fifth amendment would have been asserted at trial, the failure of the informant to appear had not prejudiced defendant. We think the first ground of denial is sufficient for us to affirm the district court's judgment.
In this court's latest decision on entrapment we made clear that in order for the defense to be valid the criminal activity must have been the "creative activity" of a government agent. United States v. Swets, 10 Cir., 563 F.2d 989. "(T)he fact that a Government agent affords an opportunity for the commission of an offense and otherwise engages in artifice and stratagem does not constitute entrapment." Id. at 990. The only basis for entrapment that defendant Jones asserted as to this transaction was that the informant had introduced him to Agent Knapp, who was posing as a drug dealer. Jones put on no evidence at trial substantiating his claim of entrapment. The district court was clearly correct in denying the motion for a new trial.
Defendant Lane also asserts he was prejudiced in his defense by the destruction of certain investigation notes kept by Agent Knapp. This contention was in no way presented to the trial court and reaches us only through a supplement to appellant's brief. Appellant's burden to show clear error is accordingly a heavy one.
At the time Agent Knapp destroyed the subject notes it was common practice for DEA agents to do so after a formal report had been prepared. Such destruction...
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