U.S. v. Brandon

• Citation: 633 F.2d 773
• Decision Date: 22 October 1980
• Docket Number: Nos. 78-3273,78-3366,s. 78-3273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael S. BRANDON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Melanie R. SMITH, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 773

633 F.2d 773

UNITED STATES of America, Plaintiff-Appellee, v. Michael S. BRANDON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Melanie R. SMITH, Defendant-Appellee.

Nos. 78-3273, 78-3366.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 13, 1979.

Decided Oct. 22, 1980.

Rehearing Denied in No. 78-3366 Dec. 18, 1980.

Richard A. Hodge, San Francisco, Cal., for Brandon.

David B. Bukey, Asst. U. S. Atty., Seattle, Wash., for Smith.

Robert E. Prince, Seattle, Wash., on brief; Gordon A. Woodley, Seattle, Wash., for United States.

Appeal from the United States District Court for the Western District of Washington.

Before GOODWIN and KENNEDY, Circuit Judges, and MURRAY, ^* District Judge.

FRANK J. MURRAY, District Judge:

Michael Brandon, defendant/appellant, appeals from his conviction of one count of conspiracy to distribute cocaine (Count I) in violation of 21 U.S.C. § 846, and two substantive counts of possession with intent to distribute cocaine (Counts II and III) in violation of 21 U.S.C. § 841(a)(1). ¹

Melanie Smith, defendant/appellee, was also indicted on the same three counts, and was found guilty only on the conspiracy count. The United States appeals from the allowance of the post-trial motion of acquittal of Melanie Smith on the conspiracy count. Fed.R.Crim.P. 29. ²

I

Appellant Brandon's first claim is that the district court erred when it denied his motion to suppress the evidence of his three telephone conversations and a face-to-face conversation with the Government's informant, Raymond Bracelin. Appellant contended that Bracelin's apparent consent to the Government's monitoring and tape recording of the conversations was not voluntarily given, but was induced by threats and coerced by Government agents. The motion was heard by a magistrate, who received evidence and made written findings of fact. After a de novo evidentiary hearing the district court modified the magistrate's findings and, as modified, adopted them, and denied the motion. At the trial the challenged evidence was admitted in evidence.

The findings of the relevant events leading to Bracelin's consent to cooperate with the Government agents follow. In the evening of March 2, 1978 Bracelin was at his home in Seattle, Washington, and in possession of cocaine. He was with Ben Yarbrough, with whom he had previously become acquainted and who had posed as an international drug dealer. Yarbrough sought to convince Bracelin to sell him the cocaine on hand, but Bracelin refused. In fact Yarbrough was a Drug Enforcement Agent (DEA), but Bracelin had no knowledge of this until about midnight when Yarbrough drew his weapon and arrested him for conspiracy and for possession of narcotics. After a pre-arranged signal given by Yarbrough, six DEA agents beat on the door to Bracelin's home and were admitted by Yarbrough. The newcomers with guns displayed searched through the premises for other persons, and brought Bracelin's wife and two teenage sons to the room where Bracelin was held. In a short space of time Bracelin's wife and sons were instructed to return to their rooms elsewhere in the home.

Bracelin was then informed of his rights by the DEA agents. In the discussion that followed the agents told him that he could face as much as thirty years in prison, and that they were giving him a break by not charging his wife. They also advised him that he had friends who were involved by reason of tape-recorded conversations. However, no threats to charge any of Bracelin's friends were made. The agents told Bracelin he would be prosecuted and probably would be imprisoned unless he cooperated in assisting the agents with the investigation of his California source of cocaine. He was also told by them that if he cooperated, they would make that fact known to the United States Attorney and recommend leniency, and that such recommendation in other cases in the past had carried great weight. Bracelin understood from the agents they could make no firm promises to him. When Bracelin expressed concern that he might lose his real estate license, Yarbrough responded that his involvement in the drug situation need not get back to Bracelin's employer.

Bracelin indicated he was inclined toward cooperation but first wished to talk with his attorney. He was permitted to call the attorney and consult with him, and the next morning, March 3, Bracelin and his attorney met with the United States Attorney and an Assistant United States Attorney. During this meeting Bracelin agreed to cooperate. Upon learning he would be charged only with possession of cocaine, Bracelin identified defendant Brandon as his California source. Thereafter, Bracelin participated in three telephone conversations with Brandon; two on March 3, and the third on March 6. Each conversation was tape recorded by the agents with Bracelin's knowledge and consent. On March 7, Bracelin consented to the use of a transmitter during his conversation with defendant Brandon at a face-to-face meeting in Seattle. The district court found that Bracelin's agreement to cooperate with the DEA agents was free and voluntary and not the result of coercion "expressed or implied".

Unless Bracelin's consent to cooperate was voluntarily given, the conversations between him and Brandon were not admissible in evidence under 18 U.S.C. § 2511(2)(c). ³ It was essentially a question of fact whether under all the circumstances consent was voluntarily given or coerced. The district court's finding of voluntary consent must stand unless it is clearly erroneous. United States v. Ryan, 548 F.2d 782, 788-91 (9th Cir.), cert. denied, sub nom. Zeldin v. United States, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 782 (1976), cert. denied, Ryan v. United States, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). In such circumstances, it is the duty of the appellate court to examine the entire record and make an independent determination of the issue of voluntariness. See Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1 (1976).

The district court's subsidiary findings, based upon the testimony of witnesses whose credibility the magistrate and court had the opportunity to assess, have not been shown to be clearly erroneous. Defendant Brandon's contention that the district court erred is predicated upon the defendant's version of the events leading to Bracelin's decision to cooperate with the agents. However, we find his summary, and the arguments offered to support it, lacking in justification of its contradictions of certain district court findings, ⁴ and its glaring omission of Bracelin's meetings with his own attorney and with a member of the United States Attorney's staff before giving his consent to cooperate with the Government.

The district court's ultimate conclusion that consent was voluntarily given rests upon findings legally sufficient to support the conclusion. United States v. Ryan, supra. We reject the defendant's contention that the agents' promise to bring the fact of Bracelin's cooperation to the attention of the United States Attorney and to recommend leniency, and Bracelin's expectation of it, constituted coercion. Good v. United States, 378 F.2d 934, 936 (9th Cir. 1967); see United States v. Glasgow, 451 F.2d 557, 558 & n.2 (9th Cir. 1971). Nor do we agree that a realistic description of an accused's predicament created by his violation of the criminal law, called to his attention to obtain his cooperation with Government agents, will vitiate his consent. See United States v. Snyder, 428 F.2d 520, 521-22 (9th Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970); Fernandez-Delgado v. United States, 368 F.2d 34, 35-36 (9th Cir. 1966). Bracelin's consent was not given until his meeting with a staff member of the United States Attorney several hours after his arrest, and after consultation with an attorney of his choice. Whatever may have been the impact of the dramatic arrest, and the entrance into his home of the six armed agents around midnight, on Bracelin's subjective state, the district court could properly conclude that Bracelin's consultation with his attorney several hours after the arrest obviously enhanced the voluntariness of the consent. United States v. Glasgow, supra at 558; Jordan v. United States, 421 F.2d 493, 496-97 (9th Cir. 1970). Because of Bracelin's consultation with his attorney the case before us is even stronger for the Government than Ryan. See id. at 794-95 (dissenting opinion). We conclude that the court properly ruled admissible in evidence against Brandon the conversations to which Bracelin was a party.

II

Appellant Brandon next claims that the district court erred when it refused to submit his entrapment defense to the jury. Brandon argues that the evidence at the trial indicated that the criminal design involved in the charges contained in the indictment originated with the Government agents, and therefore that the entrapment issue was a jury question.

There was evidence that during the first discussions between Bracelin and Yarbrough in late 1977 or early 1978, Bracelin was not interested in becoming involved with traffic in cocaine, and tried to dissuade Yarbrough from seeking to obtain cocaine through him. However, Yarbrough persisted, and ultimately talked with Bracelin into starting the venture. Bracelin twice travelled to San Francisco in February 1978 to obtain cocaine for Yarbrough. On both occasions Bracelin saw Brandon. Bracelin had never met Brandon before the first encounter in San Francisco; he was referred to Brandon by a friend in Seattle. On Bracelin's first visit to the San Francisco area Brandon displayed two samples of cocaine for Bracelin to try, and on the second visit Brandon drove Bracelin around the Bay Area looking for cocaine. On both occasions Brandon expressed reluctance to become involved in cocaine transactions. On March 2 Brandon...