U.S. v. Barron
| Citation | 594 F.2d 1345 |
| Decision Date | 14 May 1979 |
| Docket Number | Nos. 77-1743,77-1744 and 77-1745,s. 77-1743 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Franklin BARRON, Daniel James Frey, and Duane Lee Johnson, Defendants- Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James P. Buchele, U. S. Atty., Topeka, Kan. (Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan., on the brief), for plaintiff-appellee.
Ira R. Kirkendoll, Asst. Federal Public Defender, Topeka, Kan. (Leonard D. Munker, Federal Public Defender, Wichita, Kan., on the brief), for defendants-appellants Barron and Johnson.
Raymond S. Menendez of Menendez & Mettner, Topeka, Kan., submitted on brief for defendant-appellant Frey.
Before SETH, Chief Judge, and BREITENSTEIN and DOYLE, Circuit Judges.
The defendants John Franklin Barron, Daniel James Frey and Duane Lee Johnson were named, together with four others (a total of seven), in an indictment charging various violations of 21 U.S.C. § 841, possessing with intent to distribute methamphetamine, a Schedule II controlled substance. In addition, Johnson was charged with distributing methamphetamine and with conspiring and agreeing to distribute methamphetamine. Similarly, defendant John Franklin Barron was charged with possession, distribution, attempted distribution and conspiracy to distribute methamphetamine. Daniel James Frey was charged in Count II with knowingly and intentionally possessing with intent to distribute methamphetamine and in Count III with knowingly and intentionally distributing a quantity of methamphetamine and in another transaction with knowingly and intentionally possessing with intent to distribute methamphetamine, and in two other counts with knowingly possessing and distributing methamphetamine and with conspiring to distribute the same drug.
The defendants Frederick F. Smith, Christopher Alan Bullard, David E. Browning, Jr. and Richard Lee Reser entered pleas of guilty or nolo contendere at various stages of the proceedings. Frederick Smith has been a government informer for some time prior to the events here described. He entered a plea of guilty to use of a communication facility to distribute methamphetamine and testified as a government witness.
Richard Lee Reser entered a plea of guilty to two counts of distribution of methamphetamine. He also testified as a government witness.
David E. Browning, Jr. entered a plea of nolo contendere to one count of possession of methamphetamine with intent to distribute. Browning, however, did not testify.
Christopher Alan Bullard, at the end of the Government's case, entered a plea of guilty to Counts III and X, distribution of methamphetamine and conspiring to do so. The government reopened and sought and obtained permission from the court to call Bullard as a witness.
From the first, Frederick F. Smith worked with the government and Agent Christy. 1 Smith obtained samples of so-called speed from defendant Barron and turned it over to Agent Christy. This was in January 1977.
Again, on February 1, 1977, Smith communicated with defendant Barron in regard to obtaining drugs and talking price. Smith said that he had a buyer, and Barron said he could obtain various drugs at various prices. This conversation was recorded and is part of the record.
Smith and Agent Christy had discussions in February 1977, with respect to Smith's purchase of drugs. Smith arranged with Barron to buy four ounces of methamphetamine for Agent Christy, who was using the name Harvey Wallace. Barron undertook to obtain the drug from defendant Bullard. As a result, four ounces of methamphetamine were sold and were delivered at Barron's residence in Topeka on February 23, 1977. Christy paid $4,800 in cash. Frey participated in this transaction by delivering the methamphetamine to Barron. Bullard received payment from Barron after Smith and Christy had left Barron's house. Smith testified at length concerning all of this. Smith was shown to have benefited personally from the transaction in terms of money and drugs.
The testimony of Agent Christy described the transactions in question also at length. Two days after the transaction described above, Barron contacted Smith in order to contact Christy. Subsequently, Barron talked to Christy and these conversations were recorded. He offered Christy a pound of methamphetamine for $14,000. There was a discussion of an even larger quantity, five pounds. There was also a discussion of Smith's having been busted. Barron said that he trusted Smith.
There was a meeting described by Christy between him and Agent Sparks on the one hand, and defendants Reser and Barron on the other, in which the latter tried to sell one and one-half pounds of methamphetamine. Subsequently, arrangements were made by Reser and Barron to sell one and one-half pounds of methamphetamine rather than the five pounds that had been discussed.
Prior to the delivery, Barron and Reser insisted on seeing the money, and Christy and Sparks counted out $18,550 in cash. This was done in the agents' motel room. Subsequently, the sale of this one and one-half pounds was completed in a parking lot. At that time Reser and Barron were arrested, and Johnson and Browning, who were watching it, were arrested across the street.
Barron offered to cooperate with Sparks and Christy. Subsequently, Bullard and Frey agreed to purchase drugs, but did not go through with the transaction.
There was testimony from Christy and Sparks and also from three codefendants, Bullard, Frey and Smith. Browning did not testify. There was also testimony from one Steve Jones, chemist, who identified certain of the drugs as methamphetamine.
Barron was convicted on two counts of knowingly and intentionally possessing a Schedule II controlled substance with intent to distribute, with three counts of knowingly and intentionally distributing methamphetamine, with one count of knowingly and intentionally attempting to violate 21 U.S.C. § 841(a)(1), and with one count of willfully and knowingly combining, conspiring and confederating with the other defendants to distribute methamphetamine contrary to 21 U.S.C. § 846.
Johnson was convicted on one count of the knowing and intentional possession of methamphetamine with intent to distribute and with two counts of knowingly and intentionally distributing methamphetamine. He was also found guilty of Willfully and knowingly conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846.
Defendant Frey was convicted on one count of possession with intent to distribute methamphetamine and one count of distribution, both being in violation of 21 U.S.C. § 841(a)(1); with one count of attempting to violate 21 U.S.C. § 841(a)(1); and one count of conspiring in violation of 21 U.S.C. § 846.
The contentions are:
1. Defendant Johnson maintains that the evidence was insufficient to support the jury verdicts of guilty as to him.
2. Defendant Barron contends that the doctrine of entrapment applies to him.
3. All of the defendants maintain that the testimony of Smith and Reser should have been stricken and the court erred in denying the motion to do so.
4. Defendant Frey argues that he is entitled to severance from the other defendants.
5. Frey also maintains that there was insufficient evidence to justify the jury's verdicts as to him.
Richard Lee Reser testified regarding his long acquaintanceship with Johnson and with regard to the conversations that he had with him. Barron contacted Reser at a tavern in Topeka regarding selling some drugs. Barron was seeking to get rid of methamphetamine and asked Reser to help him. Reser called Duane Johnson and told him what Barron had told him. Johnson said that he could get back in touch with him, which Reser did the next night. Meanwhile, Reser had reported back to Barron. Reser testified that on February 23, 1977, he talked to Johnson about obtaining large quantities of methamphetamine and that Johnson did not at that time know whether he could get five pounds.
Reser also testified that he tried to sell Agent Christy a pound and one-half at about that time, and although the Agent wished five pounds, he purchased the amount offered, one and one-half pounds. Johnson gave Reser the sale prices for larger quantities which he wrote down on a memorandum which was introduced in evidence. Later actual physical delivery was made to the agents.
There were two sales on February 26, 1977, one for one-fourth pound and another for one and one-fourth pounds. At the time of the delivery Reser, Barron, Browning and Johnson were all present at the parking lot where the delivery was made.
The evidence then did support the conclusion that Johnson was the one who had possession of the methamphetamine and who arranged the delivery. Our conclusion is that the testimony of the various witnesses, the defendants-turned-witnesses and the agents who observed the scene was sufficient to support the charges with respect to which it is contended by Johnson that the evidence is insufficient.
WHETHER THE DEFENSE OF ENTRAPMENT ASSERTED BY BARRON WAS
The ultimate question is whether there is undisputed evidence which shows conclusively and unmistakably that an innocent person was induced to commit the act complained of by trickery or fraud by a government agent. See United States v. Gurule, 522 F.2d 20, 23 (10th Cir. 1975).
For the appellant Barron to take advantage of the doctrine of entrapment it would have to appear that he was an innocent dupe, whereas the government agent was the moving factor in bringing about the violation of the law by him. However, the evidence does not take this shape. It shows that Barron was very active and was not victimized by the agents. Barron took the initiative for the sale in his dealings with...
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