U.S. v. Leon

• Decision Date: 02 July 1982
• Docket Number: No. 81-1319,81-1319
• Citation: 679 F.2d 534
• Parties: 10 Fed. R. Evid. Serv. 1455 UNITED STATES of America, Plaintiff-Appellee, v. Ronald D. LEON and Joe Dee Hicks, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 534

679 F.2d 534

10 Fed. R. Evid. Serv. 1455

UNITED STATES of America, Plaintiff-Appellee, v. Ronald D. LEON and Joe Dee Hicks, Defendants-Appellants.

No. 81-1319

Summary Calendar.

United States Court of Appeals Fifth Circuit.

July 2, 1982.

Jay M. Golitz, Dallas, Tex. (Court-appointed), for Leon.

James C. Belt, Jr., Dallas, Tex. (Court-appointed), John Brunetti, Syracuse, N. Y., for Hicks.

John Mitchell Nevins, Asst. U. S. Atty., Dallas, Tex., for United States.

Appeals from the United States District Court for the Northern District of Texas.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Ronald Leon and Joe Hicks appeal from a jury verdict adjudging them guilty of conspiracy to acquire, transport and distribute cocaine, in violation of 21 U.S.C. §§ 846 and 963 ¹ and Leon only of using a telephone to commit a conspiracy, in violation of 21 U.S.C. §§ 843(b). ² Our review of the evidence and the record discloses no error, and we affirm both convictions.

The Texarkana Connection

Joe Hicks was serving a life sentence with little or no chance of parole in the Federal Correctional Institute in Texarkana, Texas (Texarkana) for previous drug and drug-related convictions. ³ There he shared a cell with Erik Russman. In December 1980, Hicks suggested to Russman that the two men, using Mrs. Russman as courier, import cocaine from Bogota, Colombia. Russman listened attentively to the plan and promptly contacted the Drug Enforcement Agency (DEA), believing that it might have some interest in the proposal and calculating that his cooperation might shorten his stint in prison.

Dortha Langley, a Dallas, Texas divorcee who often visited Hicks in prison, also became involved. She was to purchase the cocaine in Bogota and to carry the purchase money. Mrs. Russman, who, unbeknownst to Mrs. Langley, also was assisting the DEA, would actually carry the drugs back to the United States. Mrs. Langley did, in fact, travel once to Bogota to ask Hicks' Colombian connection for a loan to purchase the drugs. The Colombian connection did not pan out, so she turned next to a Dallas man named Cos Bowers. Bowers, an indicted co-conspirator along with Hicks and Leon in this cocaine importing project, advanced $30,000 as a loan and would take a substantial profit from the ultimate sale of the cocaine as "interest".

With the $30,000, Mrs. Langley purchased airline tickets for herself and for Mrs. Russman to fly to Bogota. At the Miami airport, where she was to meet Mrs. Russman, she had the pleasant surprise of a cordial reception from DEA agents, who promptly arrested her and confiscated the money. Mrs. Langley with alacrity decided to cooperate and implicated Hicks.

A long charade ensued, with DEA tape recording all conversations between Mrs. Langley and Hicks. Spinning quite a tale, she made him believe the trip had been a success. Mrs. Langley then received a call from a man who identified himself as Ron Leon. She told him that Mrs. Russman had arrived in New York with the cocaine and would take the next flight to Dallas. Leon declared that he would fly to Dallas the next day to take delivery.

Continuing the charade with Hicks, Mrs. Langley explained how Mrs. Russman had arrived safely in New York with the cocaine and how she would continue on to Dallas. Hicks told her to take delivery and to pay off Mrs. Russman and to give the cocaine to Leon.

On his arrival in Dallas, Leon called Mrs. Langley. She suggested that they meet at a restaurant near the Dallas-Fort Worth Regional Airport (DFW). Leon said he had a photograph and would recognize her. DEA agents gave Mrs. Langley a shopping bag containing five plastic bags filled with white powder that looked like cocaine. She took the bag to the pre-arranged meeting with Leon and handed it over to him. Leaving the restaurant with his contraband doggie bag, Leon was arrested by DEA agents outside.

Hicks, Leon and Bowers were indicted by a grand jury for conspiring to import and distribute cocaine. Hicks was charged only in Count 1, the conspiracy count, but Leon was charged in Counts 2 and 5 for using a telephone to facilitate the conspiracy. Bowers, who pleaded guilty to one count, was not involved in this trial.

The jury found Hicks and Leon guilty on all counts. Hicks received a fifteen-year sentence to add to the life sentence he was serving. Leon received a four-year sentence on each of the three counts, to run concurrently. Both men appeal.

The Tennessee Waltz

On the second day of the three-day trial, counsel for Hicks sought a ten-minute break to locate a witness. The trial court inquired whether the defense had any other witnesses. Following the recess, the court renewed its question. Counsel explained that one witness was flying in from New York but had not yet arrived. The only other witness was the defendant, Hicks. Since the New York witness had not arrived, the court told counsel to put on Hicks. ⁴ Relying on Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), Hicks now argues that the trial court's actions amount to reversible error because they restricted counsel's right to decide whether and when Hicks would take the stand. We do not agree. In Brooks, a Tennessee statute required a defendant to testify first or not at all. The Supreme Court held that the statute violated due process by restricting an accused's defense and by depriving him of "the guiding hand of counsel", 406 U.S. at 612, 92 S.Ct. at 1895, 32 L.Ed.2d at 364, quoting Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Brooks does not control here. The judge was merely trying to keep the trial from stalling in mid-afternoon. The record shows that counsel and Hicks already had discussed the matter, and Hicks had decided to testify. Thus the Court's actions did not influence the decision to testify. Given the substantial latitude a federal judge possesses in conducting a trial, see U. S. v. Bartlett, 633 F.2d 1184, 1188 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 101, 70 L.Ed.2d 91 (1981); Moore v. U. S., 598 F.2d 439, 443 (5th Cir. 1979), we hold that the trial judge did not infringe Hicks' constitutional rights by telling defense counsel to put him on the stand in that order.

Entrapment?

The Court denied Hicks' request for an instruction on the issue of entrapment. Hicks now maintains that this failure constitutes reversible error.

In this Circuit, before the judge must instruct the jury on entrapment, a defendant must show (1) lack of predisposition to commit the crime and (2) some governmental involvement and inducement more than just providing the opportunity or facilities to commit the crime. See U. S. v. Andrew, 666 F.2d 915, 922 (5th Cir. 1982); U. S. v. Webster, 606 F.2d 581, 583 (5th Cir. 1979); U. S. v. Felts, 497 F.2d 80, 81 (5th Cir.), cert. denied, 419 U.S. 1051, 95 S.Ct. 628, 42 L.Ed.2d 646 (1974). Hicks has entirely failed to meet his burden. ⁵ The evidence establishes that Hicks recruited Russman to the scheme; he was abundantly predisposed to commit the crime. Hicks has not shown any governmental inducement. His vague assertions that Russman, working for the DEA, had induced him to cooperate do not suffice, since Russman did not assist DEA until well after Hicks solicited his assistance. Since Hicks failed to show either a lack of predisposition or governmental involvement, the trial court correctly denied the requested entrapment instruction.

Duplicitous Indictment that Repeated Itself Redundantly

Hicks contends that Count 1 of the indictment was duplicitous. The indictment charged a conspiracy to import controlled substances, 21 U.S.C. § 846, and a conspiracy to distribute those substances, 21 U.S.C. § 963. F.R.Crim.P. 12(b) (2) states that objections based on defects in the indictment must be raised prior to trial, or they are waived. See U. S. v. Bradsby, 628 F.2d 901, 905-06 (5th Cir. 1980), citing U. S. v. Busard, 524 F.2d 72, 73 (5th Cir. 1975), cert. denied sub nom. Meyer v. U. S., 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976). Hicks' reference to U. S. v. Murray, 618 F.2d 892 (2d Cir. 1980), is not controlling in the face of binding Fifth Circuit precedent.

It's A Long Way from Texarkana ...

Next, Hicks complains that the trial court erred in not granting an application for writ of habeas corpus ad testificandum to produce two Texarkana inmates to testify in his defense. That decision falls within the realm of the District Court's sound discretion. See Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977); Malinauskas v. U. S., 505 F.2d 649, 655-56 (5th Cir. 1974). Where, as here, the parties entered into a stipulation, which the jury heard, which conveyed the substance of the testimony that at least one of the witnesses would have given, the trial court did not abuse its discretion.

The Next Best Thing to Being There

Leon contests the admission into evidence of tape recordings of telephone conversations between himself and Mrs. Langley. Mrs. Langley received two calls from a man whom she did not know who identified himself as Ron Leon. The first time, he told her he would arrive in Dallas the next day to pick up the cocaine. She received another call from the same person and arranged a meeting to transfer the drugs.

While mere identification by a caller over the telephone does not authenticate the conversation, see U. S. v. Pool, 660 F.2d 547, 560 (5th Cir. 1981) ("A telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X"), quoting U. S. v. Register, 496 F.2d 1072, 1077 (5th Cir. 1974), cert. denied sub nom. Cochran v. U. S., 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 819 (1975), this call was not "out of the blue". Mrs. Langley expected a call from Leon regarding the delivery of the cocaine. The caller gave a description of himself, arranged a meeting place and told Mrs. Langley...