895 F.2d 1415 (6th Cir. 1990), 89-5225, U.S. v. Andrews

• Citation: 895 F.2d 1415
• Docket Number: 89-5225.
• Date: 14 February 1990
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobbie Frank ANDREWS, also known as "Cotton" Andrews, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1415

895 F.2d 1415 (6th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bobbie Frank ANDREWS, also known as "Cotton" Andrews, Defendant-Appellant.

No. 89-5225.

United States Court of Appeals, Sixth Circuit

February 14, 1990

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

E.D.Tenn.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

On Appeal from the United States District Court for the Eastern District of Tennessee, 88-00061, Jarvis, D.J.

Before BOYCE F. MARTIN, Jr. and RYAN, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.

BOYCE F. MARTIN, JR., Circuit Judge.

Bobbie Frank "Cotton" Andrews appeals his cocaine conviction, arguing that his trial was fraught with error and that he was sentenced improperly. We affirm the conviction, but vacate the sentence and remand for resentencing.

Andrews was arrested for selling cocaine to a paid government informant, Larry Layne, while Andrews was a patient in the hospital. Layne had first met Andrews in early 1988. About the same time, Layne had agreed to become an undercover informant for the Federal Bureau of Investigation. On May 20, 1988, Layne purchased approximately one ounce of cocaine from Andrews for $1,750.

At trial, Layne testified that Andrews had told him during the spring of 1988 that he could get 85% pure cocaine for him the following day, but did not. Later, on May 17, 1988, Layne visited Andrews in the hospital in order to purchase cocaine. Layne wore a tape recorder. The defendant indicated that he had found some sources for cocaine, but that the purity was only 50 to 60 percent. On May 20, 1988, Layne had two taped telephone conversations with the defendant. Layne asked if Andrews could get him any cocaine, and Andrews replied that he might be able to get some. On a second visit that day, Andrews told Layne that he would sell him approximately one ounce of cocaine for $1,725. Layne left the hospital, and met with FBI agents, who gave him $1,800. Layne returned to the hospital and purchased the cocaine from Andrews, paying him $1,700 at the time with $25 to be paid later.

As a result of this transaction, Andrews was indicted on September 8, 1988 for three counts of conspiracy to distribute cocaine, distributing cocaine, and using a telephone to facilitate the distribution. After a two day jury trial, Andrews was convicted on all three counts on November 17, 1988. On February 14, 1989, Andrews was given concurrent sentences of 80 months on the distribution counts and 48 months on the telephone count. The district court also sentenced Andrews to pay a special assessment of $150.00.

On appeal, Andrews argues: (1) that the government engaged in outrageous conduct; (2) that the district court erred in refusing to compel a fuller response to his bill of particulars; (3) that the district erred in instructing the jury; and (4) that the district court improperly sentenced him.

I. Outrageous Conduct

Andrews argues that the government, by employing Layne as an undercover agent, entrapped him in a manner so outrageous as to constitute a violation of his due process rights. United States v. Russell, 411 U.S. 423, 431-32 (1973). In Russell, the Supreme Court stated, "we may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction...." Id. Cf. Rochin v. California, 342 U.S. 165 (1962) (conviction reversed on due process grounds where defendant forced to vomit to reveal evidence he had eaten). The government allegedly violated Andrews due process rights under Russell by paying an agent on a contingent fee basis to induce drug sales and by employing an agent who had a reputation as a drug dealer and who had supplied at least one other person with drugs.

If the government conduct was sufficiently outrageous, the law does not preclude barring the conviction gained by entrapment, regardless of any predisposition the defendant may have had. See Hampton v. United States, 425 U.S. 484 (1976). In Hampton, the Supreme Court affirmed the conviction of a defendant whom the government had convinced to sell heroin and to whom the government had supplied the heroin to sell. Although Justice Rehnquist's plurality opinion stated that entrapment could not be based on government misconduct in cases where predisposition existed, id., at 488, a majority of the court disagreed. In his concurrence, Justice Powell, joined by Justice Blackman, agreed with the three dissenters that the Russell defense could be available regardless of predisposition if the government conduct was sufficiently outrageous. Id., at 495 (Powell, J. concurring); Id., at 497, (Brennan, J. dissenting). However, Justice Powell cautioned that a defendant would face a stiff standard to bar a conviction because of government misconduct: "the cases, if any, in which proof of predisposition is not dispositive will be rare." Id., at 495 n. 7.

Russell. United States v. Brown, 635 F.2d 1207 (6th Cir.1980). Under Brown, the scope of permissible government conduct relates to the type of criminal activity under investigation. Id., at 1213. We must also examine the degree of government involvement: whether the government instigates the criminal activity or merely infiltrates a preexisting enterprise and whether the government directs or controls the activities of the criminal enterprise or merely observes its actions. Id. Another factor is the immediacy of the impact of the...