585 F.2d 443 (10th Cir. 1978), 77-1345, United States v. Szycher

Docket Nº:77-1345.
Citation:585 F.2d 443
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas S. SZYCHER, Defendant-Appellant.
Case Date:October 16, 1978
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 443

585 F.2d 443 (10th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Douglas S. SZYCHER, Defendant-Appellant.

No. 77-1345.

United States Court of Appeals, Tenth Circuit

October 16, 1978

Page 444

        Stephen M. Duncan, Denver, Colo. (Charles Eugene Grover of Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., on the brief), for defendant-appellant.

        Edward W. Nottingham, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

        Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges.

        HOLLOWAY, Circuit Judge.

        Defendant Szycher was convicted after a jury trial on three counts of an indictment charging that he knowingly and intentionally distributed cocaine, a Schedule II controlled substance, on three occasions in April and May, 1976, in violation of 21 U.S.C. § 841(a)(1). He appeals the convictions and sentence, 1 arguing mainly: (1) that there is no rational basis for the classification of cocaine as a Schedule II narcotic drug, and that consequently he is subjected to the danger of loss of liberty without due process; (2) that the failure to apply the same lesser penalty to cocaine as is applied to other drugs with identical properties, characteristics and effects, and with fewer potential dangers than narcotics, violates the concept of equal justice; (3) that the conduct of the government, acting through Drug Enforcement Agency (DEA) personnel and their paid informer, so violated concepts of fundamental fairness and was so outrageous as to require dismissal of the case under due process principles or as an exercise of supervisory power by the courts; and (4) that the trial court erred in its instruction on entrapment.

        It is convenient to detail the facts later as we discuss these separate appellate contentions.


        First, we consider defendant's challenges to the classification of cocaine as a narcotic drug, as well as to the penalties attached to its distribution. Defendant bases his arguments mainly on expert opinions and scientific evidence relating to the nature of cocaine, contending that both equal protection and due process principles are violated by the application of 21 U.S.C. § 841(a) to cocaine under its classification as a Schedule II controlled substance. See 21 U.S.C. § 812 and 21 C.F.R. § 1308.12(b)(4).

Page 445

        Our court has recently rejected similar arguments. United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.); United States v. Smaldone,484 F.2d 311, 319-20 (10th Cir.), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469. Congress could rationally classify cocaine as a Schedule II controlled substance for regulatory and penalty purposes, regardless of its proper medical classification. United States v. Wheaton, 557 F.2d 275, 277-78 (1st Cir.); United States v. Marshall, 532 F.2d 1279, 1288 (9th Cir.); United States v. Harper, 530 F.2d 828 (9th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80; see also State v. Erickson, 574 P.2d 1, 15-18 (Alaska); Contra Commonwealth v. Miller, 20 Crim.L.Rep. (BNA) 2331 (Roxbury, Mass., Dist.Mun.Ct.). Normally a legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts. United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 27 L.Ed.2d 4.

        We are satisfied that there are sufficient grounds for the classification made for penalty purposes, and reject the challenges to the statutory treatment of cocaine.


        Defendant next argues for reversal on the grounds that the evidence demonstrates outrageous governmental conduct violative of the concept of fundamental fairness and due process. He also maintains that, in any event, the courts should exercise their supervisory powers and bar prosecution in these circumstances to preserve the integrity of federal criminal justice. The defendant says that the trial court erred in overruling two motions presenting these issues.

        This argument for dismissal is, of course, interwoven with the entrapment defense which was asserted at trial, submitted to the jury, and rejected by it. 2 The trial judge treated the due process theory based on the conduct of the Government agents as an issue for the court to decide, 3 and, as noted, denied the motions to dismiss on this ground. While arguing that the trial court erred in its rulings rejecting the defense, the defendant does not claim there was error in the issue being ruled on by the court rather than being submitted to the jury. We feel that the trial judge was correct in deciding this issue himself. The question whether circumstances are demonstrated which would bar prosecution under due process principles is for the court. United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.); United States v. Graves, 556 F.2d 1319, 1322-23 (5th Cir.), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516; United States v. Quinn, 543 F.2d 640, 647-48 (8th Cir.).

        The trial court's first ruling on this issue was an oral denial, without elaboration, of a motion to dismiss made at the conclusion of presentation of evidence. (Supp. I R. 3). Six days after the verdict, defendant made a written motion arguing that the prosecution stemmed from introductions made by an informer of the DEA, that the informer's actions were illegal and so outrageous as to violate due process, and that to prevent such conduct from continuing, dismissal of the case and action by the court against the DEA and its agents were necessary in the exercise of the court's supervisory powers. (V R. 44).

        This motion was denied by a written memorandum opinion and order of the trial court. (Id. at 45-48). In the memorandum the court noted that the defendant admitted participating in the cocaine transactions, but that his defense was that he had been induced to do so by the undercover agents and the paid informer. The court

Page 446

stated that the informer was recruited while in custody in Gunnison, Colorado, on marijuana charges; that he began to infiltrate the Nederland, Colorado, area in the fall of 1975; that he met the defendant in Nederland; and that defendant attended a party given by the informer and the woman with whom he was living. The court stated further that the undercover DEA agents also attended the party, that defendant invited the agents and the informer to the defendant's residence where he offered them the use of a small amount of cocaine, and that the agents clearly and repeatedly expressed their interest in acquiring large amounts of cocaine.

        The court said further that the cocaine involved in the transactions for which defendant was convicted was obtained by defendant from sources other than the paid informer. The court noted testimony by defense witnesses that the informer himself distributed cocaine to other persons, that he attempted to induce these witnesses to use cocaine, and that the informer himself used cocaine in their presence. Most of this testimony related to incidents occurring after the transactions alleged in the indictment. The judge pointed out that the jury was instructed on the issue of entrapment and that there was adequate evidence of predisposition to sustain the Government's burden of proof on this question.

        The trial court's memorandum noted that the challenged conduct of the Government informer included not only the use and distribution of cocaine, established by testimony; but that it was also based on an offer of proof concerning what other witnesses would relate as to the informer's fraudulent solicitation of credit, conversion and theft of property, and failure to pay just debts. The latter testimony, however, was said to have been excluded as irrelevant, immaterial and collateral under Rule 403, F.R.E. 4

        Relying on United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113, and United States v. Spivey, 508 F.2d 146, 149-50 (10th Cir.), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104, the trial court denied the motion to dismiss on the basis of outrageous governmental conduct. The court concluded (V R. 47):

In this case, the questioned conduct had an impact on Mr. Szycher only in providing an introduction of the government's undercover agents as persons ready, willing and able to engage in large volume transactions. Given the defendant's clear predisposition, that is nothing more than providing a favorable opportunity to commit these offenses. If the paid informer is also guilty of illegal acts, the remedy must be something other than the dismissal of these proven charges against this defendant.

        While the memorandum stated that the court had "no authority or jurisdiction" to grant the motion, we do not believe that the trial judge actually rejected the defendant's motion as one which he had no power to entertain. The court's quotation from Spivey, its analysis of the evidence, and its conclusion quoted above show that the defense was entertained but rejected as lacking in merit.

        On appeal, defendant strenuously argues that due process principles require reversal of the trial court's rulings concerning the conduct of the DEA agents and the paid government informer involved in this case. Defendant refers, Inter alia, to the statement in Justice Frankfurter's opinion concurring in the result in Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 825, 2 L.Ed.2d 848, on conduct falling "below standards, to which common feelings respond, for the proper use of governmental power"; to the statement in the Court's opinion in United States v. Russell, 411 U.S. 423, 431-32,...

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