U.S. v. Thomas

• Decision Date: 01 August 1985
• Docket Number: No. 85-1023,85-1023
• Citation: 768 F.2d 611
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory James THOMAS, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 611

768 F.2d 611

UNITED STATES of America, Plaintiff-Appellee, v. Gregory James THOMAS, Defendant-Appellant.

No. 85-1023

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 1, 1985.

Gregory James Thomas, Bedford, Tex., pro se.

Charles Tessmer, Dallas, Tex., for defendant-appellant.

James A. Rolfe, U.S. Atty., J. Michael Worley, Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, TATE and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant, Gregory James Thomas, appeals his conviction of conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. section 846 and distribution of cocaine and aiding and abetting in violation of 21 U.S.C. section 841(a)(1) and 18 U.S.C. section 2. We affirm.

FACTS AND PROCEEDINGS BELOW

Appellant, Thomas, was indicted along with M.D. Gates for conspiracy to distribute and to possess with the intent to distribute cocaine in violation of 21 U.S.C. section 846 (Count One); distribution of cocaine and aiding and abetting in violation of 21 U.S.C. section 841(a)(1) and 18 U.S.C. section 2 (Count Two); and possession with intent to distribute cocaine and aiding and abetting in violation of 21 U.S.C. section 841(a)(1) and 18 U.S.C. section 2 (Count Three). Appellant alone was indicted for use of a communication facility in the distribution of cocaine in violation of 21 U.S.C. section 843(b) (Count Four). Gates pleaded guilty to a superseding information alleging conspiracy to distribute cocaine, and appellant proceeded to trial alone. The government waived Count Three, and the district court dismissed Count Four on the first day of trial. The jury found appellant guilty on both counts One and Two. He was sentenced to serve one year and one day on Count One and two years on Count Two, with three years special parole. The sentence on Count Two was probated for five years and was to run consecutively with the sentence on Count One.

Appellant was convicted on these charges for arranging the sale of two ounces of cocaine for $5,000 by M.D. Gates to a Drug Enforcement Administration (DEA) undercover agent, Ronald Lombardi. Appellant's defense was based on entrapment and lack of criminal intent. At trial, much of the testimony was undisputed. Appellant was employed by American Airlines as a ticket agent. In September 1982, the airline transferred him from Detroit, Michigan to Dallas, Texas. His wife and four daughters remained in Detroit until October of 1983, and appellant flew to Detroit every weekend during that year to be with his family.

Appellant's neighbor in Detroit, Vern Bahneman, had become an informant for the F.B.I. In the summer of 1982, shortly before appellant moved to Dallas, Bahneman introduced appellant to an undercover F.B.I. agent, Steven Butler. Appellant discussed with Butler the possibility of setting up a drug courier operation using his connections with the airline. At a meeting in Dallas on September 25, 1982, appellant introduced Butler and Bahneman to various individuals allegedly involved in the manufacture and distribution of phencyclidine (PCP). At a meeting in January of 1983, appellant discussed the proposed operation to transport controlled substances, and, in fact, delivered a small sample of PCP to Butler.

Based on these conversations and events, Butler informed DEA agents in Dallas about appellant, and, on March 31, 1983, he introduced appellant to undercover agent Ronald J. Lombardi. All subsequent contacts between appellant and Lombardi were initiated by Lombardi. In his meetings with Lombardi, appellant discussed details of the proposed drug courier operation and indicated that he could deliver kilograms of various controlled substances on a monthly basis. Lombardi suggested that he would like to buy a smaller amount in order to test the quality of the product that appellant could deliver. He arranged with appellant to purchase two ounces of cocaine for $5,000 as a sample.

On July 8, 1983, Lombardi twice telephoned appellant to arrange the meeting. These conversations were taped and played for the jury. The meeting took place at 5:00 p.m. at the Hilton Hotel in Arlington, Texas. At that meeting, appellant introduced Lombardi to M.D. Gates. Gates and Lombardi left the Hilton bar to transact the sale and returned about fifteen minutes later. As appellant and Lombardi subsequently exited the bar together, Lombardi placed an unsolicited tip of $100 in appellant's hand. Gates gave the entire $5,000 from the sale to his supplier, an individual named Manuel. Lombardi made no further attempts to contact appellant. Appellant was not arrested for this offense until May 1984.

While not disputing any of the above facts, appellant argued at trial that he lacked the criminal intent to commit the offenses for which he was indicted and that As for the drug transaction of July 8, 1983, for which he was convicted, appellant testified that he thought that if he did not cooperate with Lombardi, it would get back to Bahneman and Butler. Appellant stated that Butler had introduced Lombardi to him as a Mafia business associate who was relocating in the Texas area. Appellant further testified that he was surprised that Gates was actually able to deliver two ounces of cocaine, implying that he never expected the deal to be consummated. He also insisted that he did not know that it was illegal for him to introduce people to each other for the purpose of engaging in a narcotics transaction when he was not personally involved and did not receive any money.

                he was entrapped by Bahneman, Butler, and Lombardi.   See United States v. Henry, 749 F.2d 203, 211 (5th Cir.1984) (en banc) (it is not impermissibly inconsistent for an accused to claim that his admitted acts were without criminal intent, but that nevertheless any act so committed was induced by governmental entrapment).  Appellant testified that Bahneman convinced him that he was a member of a Mafia-style crime organization, and appellant felt that Bahneman was capable of killing him and his family if it appeared that he was not able to carry out illegal activities.  He therefore decided to play along with Bahneman and his associates until he could move his family to Dallas.  Butler, however, testified that appellant had told him that he had been actively involved in the transportation of illegal drugs for two or three years;  that "he was trying to get something up in Dallas," and "he wanted to arrange a meeting between some of his people and myself."
                

DISCUSSION

Sufficiency of Evidence

Appellant asserts that there is insufficient evidence to support his conspiracy conviction, claiming that the government failed to prove beyond a reasonable doubt that an agreement existed between him and Gates to possess with intent to distribute and to distribute cocaine. He timely moved for, and was denied, a judgment of acquittal on this issue. This Circuit has stated the standard of review for sufficiency of evidence:

"It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Thus, "[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

"In a conspiracy case, the government must prove beyond a reasonable doubt that two or more persons agreed to commit a crime and that each conspirator knew of, intended to join and participated in the conspiracy." United States v. Leon, 679 F.2d 534, 540 (5th Cir.1982); United States v. Vergara, 687 F.2d 57, 60 (5th Cir.1982); United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). In this case, there was evidence based upon which the jury could have found that an agreement existed between appellant and Gates to distribute cocaine to Lombardi since appellant admitted that he arranged for Gates to sell the cocaine to Lombardi, and Gates confirmed this fact. The jury was free to disbelieve appellant's assertion that he did not expect Gates to be able to produce the cocaine and that he therefore did not intend for any sale to take place. His assertion that the government was required to adduce specific evidence of particular conversations or contacts with Gates prior to the date of the transaction in order to prove a conspiracy is incorrect.

Appellant's argument that "[a] single sale of narcotics, without more, does not establish a conspiracy," is inappropriate under the facts of this case. The Sixth Circuit has stated that "the single-sale defense applies only in two situations, ...: (1) when the buyer and seller are the only two participants and (2) where the buyer is a minor figure in a complex conspiracy so as to raise questions of whether he knew of the scope of the conspiracy." United States v. Hamilton, 689 F.2d 1262, 1272 (6th Cir.1982), cert. denied sub nom. Wright v. United States, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983). Cases cited for this proposition by appellant involve situations in which it could not be shown that the party appealing had participated in the conspiracy charged. In this case, there is sufficient evidence to show that appellant made an agreement with Gates to distribute cocaine to Lombardi.

Entrapment Instruction

Appellant contends that the trial court, in instructing on the entrapment defense ¹...