U.S. v. Ford, 90-5028MN

• Decision Date: 15 November 1990
• Docket Number: No. 90-5028MN,90-5028MN
• Citation: 918 F.2d 1343
• Parties: UNITED STATES of America, Appellee, v. William George FORD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1343

918 F.2d 1343

UNITED STATES of America, Appellee, v. William George FORD, Appellant.

No. 90-5028MN.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 15, 1990.

Decided Nov. 15, 1990.

Douglas Peine, for appellant.

Thor Anderson, for appellee.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge.

MAGILL, Circuit Judge.

William Ford appeals his conviction for aiding and abetting the distribution of heroin and for distributing heroin, both in violation of 21 U.S.C. Sec. 841(a)(1), and the resulting sentence imposed. Ford argues on appeal that he was entrapped as a matter of law, that the government's conduct was so outrageous that he should not be prosecuted, and that he was denied effective assistance of counsel. Because Ford was predisposed to commit the offenses for which he was convicted and the government's conduct was not outrageous, we affirm the conviction. We reverse and remand Ford's sentence for a determination of acceptance of responsibility and dismiss his other ineffectiveness of counsel claim because it is premature.

I.

Ford's conviction arose from an undercover police operation that resulted in the indictment and conviction of ten members of a drug distribution ring. Ford became a target of the operation after a confidential informant provided the police with information about Ford's drug involvement. The informant set up a meeting between Eugene Leatherman, a special agent with the Minnesota Bureau of Criminal Apprehension, and Ford on April 25, 1988. At this meeting Leatherman sought to purchase heroin from Ford. Ford told Leatherman that he needed the money before Leatherman would get the heroin. Leatherman gave Ford $800 and Ford left the area. Ford returned a short time later and gave Leatherman a package that contained .7 grams of black tar heroin. Leatherman then told Ford he would like to do future deals with him; Ford agreed and gave Leatherman his phone number.

The next day Leatherman called the phone number Ford had given him and discussed purchasing more drugs. Ford met Leatherman in a convenience store parking lot and agreed to sell the officer 2.92 grams of heroin for $1,950. To assure Leatherman that he would not be cheated, Ford suggested that Leatherman could observe Ford's meeting with his heroin source. After contacting the source, Ford and Leatherman traveled together to an arranged meeting place. Ford entered the source's car, and emerged a short time later. He told Leatherman there had been a mix-up about the quantity of drugs Leatherman wanted, and that the source had to obtain more heroin. After the source returned, Ford again joined him in his car, and instructed Leatherman to follow them. Both cars eventually stopped in a convenience store parking lot. Ford left the source's car and rejoined Leatherman. He then gave Leatherman a plastic bag containing black tar heroin.

After this transaction, Leatherman instructed the confidential informant to tell Ford to contact the officer. Sometime within the next two days, Ford paged Leatherman, leaving a number for Leatherman to call. Leatherman called the number and the two discussed another drug purchase. On April 28, 1988, Ford and Leatherman again met in a convenience store parking lot where Leatherman paid Ford $1,950 and received 2.82 grams of black tar heroin. Ford mentioned that his source for this transaction was his former girlfriend, who also had supplied the heroin to Ford's previous source. Leatherman expressed an interest in meeting Ford's former girlfriend, and suggested that Ford arrange a meeting for the three of them. Ford agreed and also said he wanted to reconcile with his former girlfriend.

On May 5, 1988, Ford again paged Leatherman. During the ensuing conversation, the two discussed another heroin purchase. Ford told Leatherman he would obtain the heroin. This deal was never consummated, however, and neither party ever contacted the other again.

In August 1988, the confidential informant introduced another undercover police officer, Hennepin County Sheriff's Department Deputy Thomas Rainville, to Ford. At their initial meeting, Ford gave Rainville his telephone number. Rainville called Ford on August 11, 1988 and asked Ford to "cover" him on a cocaine deal. Rainville explained that his "buyer" had not paid him in full for the last deal and that he wanted Ford to serve as extra protection in case anything went wrong. Ford agreed to assist Rainville in exchange for $500. On the way to the transaction, which was actually staged by undercover officers, Ford informed Rainville that he had served as protection many times in the past, in particular for his former girlfriend, and that at one time he had been involved in a $50,000 heroin transaction. Rainville then told Ford he wanted to purchase heroin from him, and eventually exchange cocaine for heroin as well. Ford informed Rainville that he could set up a heroin purchase for later that evening. The staged transaction then took place and Rainville paid Ford the $500.

Rainville contacted Ford again on August 18, 1988 and they discussed a heroin purchase. Ford stated he was having problems with his source, but that he had another source who could supply the heroin and would contact Rainville after he had made the necessary arrangements. Ford later paged Rainville and the two arranged the heroin deal. Rainville met with Ford and Ford's sister and they traveled to the site of the deal. Ford mentioned that he was using a new source this time, one that his sister was familiar with, and that she would act as the go-between. Rainville then gave Ford's sister $1,200 and Ford stated that she would have to go and obtain the drugs. Another mix-up concerning drug quantity occurred and Ford and Rainville traveled to another location to wait for the source. While they were waiting, Ford gave Rainville a small quantity of heroin as a sign of good faith. The two discussed future heroin transactions before Ford finally obtained 2 grams of heroin. After giving Rainville the heroin, Ford stated that he wanted his share of the deal. Rainville first gave Ford $50, but after Ford complained, Rainville gave him another $50. Ford also asked Rainville for some of the heroin. Rainville refused, stating that he already had a buyer lined up for that exact quantity. Ford then asked Rainville to return the sample of heroin he had earlier given the officer so he could sell it and make some money. Rainville gave the sample back to Ford. The two continued to discuss future drug deals, and Ford expressed interest in robbing any dealers who Rainville thought would be good targets.

Ford paged Rainville on August 26, 1988, and in the ensuing conversation asked Rainville if he was interested in purchasing heroin. In a subsequent conversation, Ford told Rainville that he knew people who were interested in purchasing cocaine from the officer, and that they wanted a small sample. Rainville stated that he did not have any cocaine just then. Rainville and Ford met later that day and negotiated a heroin purchase: Rainville would pay Ford $3,500 for 7 grams of heroin. Ford told Rainville that his source for this deal was the same as his source for the August 18, 1990 deal, but that he had not included his sister this time. Rainville and Ford parted company, but later Ford again paged Rainville. Ford told Rainville the deal was ready and again asked for a sample of Rainville's cocaine for his connections. They met again, and Ford asked for the $3,500 in advance. Rainville refused, and they eventually agreed that Rainville would first give Ford $1,500 for 3 grams, and then $2,000 for the remaining 4 grams. Rainville also gave Ford a small quantity of cocaine for him to take to his source. Ford asked for a percentage of the deal. Rainville refused. Ford then asked for some heroin. Rainville refused the heroin request, but did give Ford $100.

Two days later, on August 28, 1988, Ford again contacted Rainville. He told the officer that he had friends who wished to purchase 2 kilos of cocaine. Rainville said he was reluctant to partake in such a large transaction without knowing anything about the buyers. The next day Ford called Rainville and told him that the cocaine deal had fallen through.

Ford contacted Rainville another time on August 30, 1988. Ford asked Rainville to give him $100, without specifying a reason for his request. Rainville reluctantly agreed and met with Ford later that day. At the meeting, Ford acted strangely and demanded that Rainville give him some heroin. Rainville refused, and Ford asked for the $100 instead. Rainville agreed to give him the money if Ford would procure an untraceable handgun for the officer. Rainville then gave Ford the money, although Ford never procured a handgun for him.

On September 13, 1988, Ford paged Rainville after the officer had left a message for him. They arranged another heroin purchase for later that day. Rainville met Ford and another woman in the parking lot of a fast-food restaurant and agreed to exchange $1,100 for 2 grams of heroin. Ford informed Rainville that the heroin was under a nearby rock. After Rainville picked up the heroin, he gave Ford the money. The two discussed another heroin deal before parting company. Rainville soon discovered that the quantity of heroin he had obtained was not 2 grams, but 1 gram. He contacted Ford and informed him of the discrepancy. Ford replied that his female companion must have made a mistake. Rainville told Ford that the next time they were involved in a deal, Ford should make up the difference. There were no additional transactions after this date.

Ford was arrested on December 14, 1988 and charged with three counts of aiding and abetting the distribution of heroin and three counts of distributing heroin. At trial the transactions described above were related at length. The undercover officers testified, as did other members of the team...