U.S. v. Smith, 85-3178

Citation802 F.2d 1119
Decision Date16 October 1986
Docket NumberNo. 85-3178,85-3178
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Daniel J. SMITH, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

John E. Lamp, James R. Shively, Asst. U.S. Atty., Spokane, Wash., for U.S.

Dustin Deissner, Van Camp & Bennion, P.S., Spokane, Wash., for Smith.

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

Before POOLE, NORRIS, and BEEZER, Circuit Judges.

POOLE, Circuit Judge:

Daniel J. Smith appeals from his conviction for possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and unlawful use of a telephone to facilitate a conspiracy, 21 U.S.C. Sec. 843(b). Smith argues that the police lacked probable cause to arrest him, and thus the district court erred in refusing to suppress the evidence seized incident to that arrest. He also contends that the government's conduct in this case constitutes entrapment as a matter of law and was, in fact, so outrageous as to violate his due process rights. Finally, Smith argues that the district court erred in denying his post-trial motions for a verdict of acquittal or, in the alternative, for a new trial because the jury verdicts were inconsistent. We affirm.

FACTS AND PROCEEDINGS

In 1984, Michael Smith, the brother of appellant, approached police officers of the Spokane Police Department and expressed his desire to serve as a confidential informant. The Spokane Police Department referred Michael Smith to the Drug Enforcement Agency (DEA), informing the DEA that Michael Smith could arrange to purchase cocaine from Daniel.

According to Michael, the DEA agents told him that they already had evidence to arrest Daniel for laundering drug money through his Spokane sandwich shop. The agents told Michael that they wanted him to arrange for Daniel to purchase some drugs. Michael agreed to try. At this meeting, Michael also informed the agents that Daniel was having financial difficulties because he owed taxes.

Michael contacted Daniel several times in August telling Daniel that he needed money and that he wanted Daniel to purchase drugs for him so he could resell them. At first, Daniel refused to arrange such a purchase. Finally, in late August, Michael arranged to purchase cocaine from Daniel. That transaction, however, was never finalized because Michael refused to provide his brother with the purchase money in advance.

Later, Michael agreed to front the money, and in October, Daniel finally agreed to sell Michael an ounce of cocaine. On October 19, Michael went to Daniel's home and paid him $2,300.00 in marked money provided Upon leaving, Daniel stopped at a public telephone and placed a short call. After leaving the phone booth, he drove south towards Spokane. While other agents continued to follow Daniel, agent Hector Sanchez went to the public phone and called Michael who was still waiting at Daniel's residence. Michael said he had not received a call from Daniel but that he had just been called by Daniel's wife who told him that Daniel had called her and asked her to inform Michael that he was on his way back to the house.

by the DEA. Under surveillance, Daniel and his wife left their home and drove to a grocery store. Daniel entered the store and emerged a little while later with a bag apparently carrying groceries. He next traveled to a bakery where he left with another grocery bag. He then proceeded to a parking lot of a funeral home where the agents lost surveillance for a couple of minutes. When the agents reestablished his location, he was exiting the parking lot. He then drove to his restaurant where his wife left the car. Thereafter, Daniel drove north and finally turned off the main highway onto an unpaved road which serviced three homes. One of the homes belonged to co-defendant Richard Spies. Daniel remained at this location for approximately one hour and fifteen minutes.

Meanwhile, Daniel had stopped at and entered an apartment building in Spokane where he remained for approximately twenty-five minutes. Upon exiting, he drove to his house where he delivered one ounce of cocaine to his brother. Michael then left the house and met with DEA agents to whom he turned over the cocaine. Daniel was not arrested at this time.

Agent Sanchez thereafter showed Michael a photograph of Richard Spies. Michael told Sanchez that he recognized Spies as the same man he had seen in photographs with Daniel which Daniel had displayed at his home. Michael said that his brother had identified the man as a wealthy cocaine dealer whom his wife had known for years. At the suppression hearing, Michael admitted recognizing Spies from photos at his brother's house, but denied having told Sanchez that Spies was a cocaine dealer.

Sometime in November, Daniel sold his van to Michael for $1,200.00. Michael did not have the cash at the time, but said he would pay Daniel in the future. Michael then suggested a second purchase of cocaine, and a purchase was set up for December 11, 1984. That evening, Michael met his brother at a tavern and once again gave him $2,300.00 in DEA marked money. Daniel left the tavern and headed north out of Spokane in the direction of Spies' home. The highway on which he was traveling later forked, and Daniel proceeded along one road for a short period. He then turned into a parking lot, drove through the lot, and continued north on the other road. After turning off the highway and traveling on different side roads, Daniel stopped his car briefly. He then proceeded to Richard Spies' house, where he remained for approximately one hour.

Shortly after leaving this residence, Daniel stopped at a staged accident scene where agents then arrested him. Upon searching him, agents found a plastic baggie containing one ounce of cocaine and $100 of the marked money.

Smith was indicted on one count of conspiracy to distribute cocaine, one count of distribution of cocaine, one count of possession with intent to distribute cocaine, and two counts of unlawful use of communication facility to facilitate a conspiracy. Richard Spies was also indicted on the conspiracy charge and was charged separately with two counts of distribution of cocaine, as well as separate counts of possession of cocaine, marijuana, and psilocubin.

Smith filed pre-trial motions to dismiss the indictment on the grounds of entrapment and outrageous conduct, and to suppress the evidence seized incident to arrest as well as Smith's confession. A three-day evidentiary hearing was held after which the district court granted the motion to suppress the confession, but denied all other motions.

The case proceeded to trial, and Smith was allowed to argue and present evidence supporting an entrapment defense. The jury also was given an entrapment instruction. The jury returned a verdict finding Smith "not guilty by reason of entrapment" on the conspiracy and distribution counts as well as one of the telephone facilitation counts. The jury found Smith guilty on the other telephone facilitation count as well as the possession count.

Smith moved for a judgment of acquittal or for a new trial claiming that the verdicts were impermissibly inconsistent. The district court denied the motion, and Smith timely appealed.

DISCUSSION
A. Probable Cause to Arrest

Smith argues that the police lacked probable cause to arrest him after he left Spies' home, and therefore, any evidence seized during the arrest must be suppressed. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). He also argues that the arrest was a pretext to search him for cocaine and thus was invalid. The district court denied the motion finding that it was not unreasonable for the agents to wait to arrest Smith until the second cocaine transaction. Although the court did not specifically address the issue of probable cause, a finding of probable cause is implicit in the court's decision to deny the suppression motion.

The test for probable cause is whether "facts and circumstances within the officer's knowledge * * * are sufficient to warrant a prudent person, or one of reasonable caution, [to believe], in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.1986), cert. denied --- U.S. ----, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986) The existence of probable cause is a mixed question of law and fact. Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1629-30, 10 L.Ed.2d 726 (1963); United States v. Alfonso, 759 F.2d 728, 741 (9th Cir.1985). We must accept, unless clearly erroneous, the underlying facts as found by the district court; however, the district court's ultimate conclusion of probable cause is reviewed de novo. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Greene, 783 F.2d at 1367.

We conclude that the agents had probable cause to arrest Smith when he left Richard Spies' house. It is undisputed that Smith had provided cocaine to his brother Michael in October. Upon receiving the money for that purchase, he had been followed by the agents and observed to stop at a grocery store, a bakery, a parking lot, his sandwich shop, an area north of Spokane containing three residential homes, and an apartment building. Of these locations, the parking lot, residential area, and the apartment building were the most suspicious. As to the others, Smith appeared to have a legitimate purpose for stopping. He shopped at the grocery store and the bakery and dropped off his wife at the sandwich shop.

Of the remaining three locations, Smith was observed to place a phone call shortly after he left the residential area. Agents were able to ascertain that...

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