U.S. v. Hart
| Decision Date | 07 May 1992 |
| Docket Number | Nos. 91-30182,91-30254,s. 91-30182 |
| Citation | 963 F.2d 1278 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Daniel J. HART; Paul G. O'Connell, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. HART, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barry McHugh, Asst. U.S. Atty., Boise, Idaho, for U.S.
Ellison M. Matthews, Boise, Idaho, for Paul G. O'Connell.
Lance D. Churchill, Churchill & Vander Boegh, Boise, Idaho, for Daniel J. Hart.
Appeal from the United States District Court for the District of Idaho.
Before: BROWNING, WRIGHT, and FERNANDEZ, Circuit Judges.
The United States appeals the district court's grant of Paul O'Connell's motion for acquittal and Daniel Hart's motion for acquittal following their jury convictions for conspiracy to distribute cocaine. Hart also made a motion for a new trial. The court granted these motions after the jury acquitted O'Connell of distributing or aiding and abetting the distribution of cocaine. Hart appeals his jury convictions for distributing cocaine on the grounds that he was entrapped and that the government's conduct was outrageous. We reverse the grant of the motions and otherwise affirm.
Hart and O'Connell were charged with distributing or aiding and abetting the distribution of cocaine as well as conspiring together or with known or unknown persons to distribute cocaine. Hart was also charged with two separate counts of distributing cocaine. This prosecution arose from a government sting operation in Sun Valley, Idaho. Wayne Joler, a former resident of Sun Valley, was indicted on charges of drug trafficking and income tax evasion. Joler pled guilty to one count of income tax evasion and agreed to become a government informant. Joler's sentence was suspended so that he could return to Idaho and re-establish his contacts with cocaine suppliers.
Joler had used cocaine with Hart in the past, and upon returning to Idaho he struck up a friendship with Hart. Joler testified that when he raised the subject of buying cocaine, Hart told him that he was "in the business":
Q. Prior to July 12, had you been talking to [Hart] about buying cocaine?
. . . . .
A. I would think so, yes.
Q. How would that come up?
A. Well, [Hart] was working in a restaurant, ... and I was over there one night for a golf thing, and I just kind of, basically, asked him if he was in the business, and he said yes, and can we do anything, and he said yes, we can.
Hart undertook to obtain cocaine for Joler. On July 12, 1989, Joler gave Hart $800 for the purchase of cocaine. Hart left to meet a source he called "Doug" and was followed to the corner of Highway 75 and Greenhorn Road, where he met with an unidentified person in a small silver car. Hart returned to his residence and gave the cocaine to Joler in exchange for an additional $100. On July 24, 1989, Joler purchased cocaine from Hart for $450.
The events of August 24, 1989 implicated O'Connell as well as Hart. Joler sought to purchase a larger amount of cocaine--$2,000 worth--and both Hart and Joler went in search of Hart's source, "Paully." In an attempt to locate Paully, Hart took Joler first to a construction site where Paully was working, then to Paully's residence, and then back to the construction site. Hart eventually found Paully, identified as O'Connell, standing outside the construction site. Hart told O'Connell that they had $1,500 in cash. Hart and O'Connell conversed about golf and the purchase of a tool box; Joler testified that the conversation was about the purchase of cocaine. O'Connell said that he would check and call Hart in twenty minutes. Hart told Joler that O'Connell was going to pick up O'Connell left the construction site after Hart and Joler and briefly visited an art gallery. O'Connell placed a phone call at the same time as Hart received a phone call from his source delaying the transaction until the evening. Joler returned to Hart's residence at 7:00 p.m. that evening with $2,000. O'Connell subsequently drove past Hart's residence and proceeded to meet with the owner of the art gallery. O'Connell then went to Hart's residence, but left when he apparently saw two officers conducting surveillance. After receiving a phone call, Hart informed Joler that his source had "bad vibes" and that Hart needed to use Joler's car to pick up the cocaine. Hart drove to the corner of Highway 75 and Greenhorn Road where he was seen meeting with O'Connell. Hart returned to his residence and gave Joler cocaine which he claimed to have purchased from "Herby."
the cocaine. Joler and Hart then went to a restaurant, where Hart said he saw Paully drive by and that Paully was going to Hart's residence. At this moment O'Connell's car drove by. Hart and Joler returned to Hart's residence
Joler later made unsuccessful attempts to purchase cocaine from Hart. On August 30, 1989, Joler delivered $4,000 to Hart for a cocaine purchase. O'Connell subsequently visited Hart's residence briefly. Joler met with Hart twice more that day but Hart was unable to arrange a purchase and eventually returned Joler's money. The next day Joler had four telephone conversations with Hart but again Hart was unable to arrange a purchase.
O'Connell testified that his conversation with Hart at the construction site was about playing golf and that he went to the art gallery to check on a job. O'Connell and his alibi witnesses said that he was mountain bike riding at the time he was allegedly seen with Hart at the highway intersection.
While the jury was deliberating, the jury asked the judge whether Hart could only be convicted of conspiring with O'Connell or whether Hart could be convicted of conspiring with an unknown person. The judge said "no." The jury subsequently convicted Hart on all counts and convicted O'Connell of conspiracy. However, the jury acquitted O'Connell of distributing or aiding and abetting the distribution of cocaine.
The district court then granted O'Connell's motion for acquittal on the conspiracy count because of O'Connell's acquittal on the distribution count. See Fed.R.Crim.P. 29. The court further ruled that since there was no evidence of an agreement between Hart and any other alleged co-conspirator, Hart had to be acquitted of the conspiracy count as well. The court granted Hart's motion for a new trial on the conspiracy count in the event the motion for acquittal were reversed on appeal. See Fed.R.Crim.P. 33.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291.
We review de novo the legal determination whether a defendant may upset a verdict because it is inconsistent with an acquittal. United States v. Smith, 802 F.2d 1119, 1126 (9th Cir.1986). The district court perceived an inconsistency between the jury's acquittal of O'Connell on Count IV, the charge of distributing or aiding and abetting the distribution of cocaine, and its conviction of him on Count I for conspiring to distribute cocaine. We agree that there could be an inconsistency. The evidence in support of Count IV--O'Connell's meeting with Hart and Joler at the construction site on August 24, his movements that day, his alleged meeting with Hart at the highway intersection that evening, and his meeting with Hart on the morning of August 30--is the same evidence that suggests a conspiracy between Hart and O'Connell to distribute cocaine. We cannot agree with the conclusion that O'Connell must be acquitted.
The specter of inconsistent verdicts has haunted the courts for many years. We sense an injustice when we encounter it, but it is difficult to ascertain who has been subjected to the injustice. Is it the government (all of us) because a defendant has been improperly acquitted of an offense, or is it the defendant (and all of us) because he has been improperly convicted of an offense? We may never know the real facts, but the Supreme Court has given us the legal answer. In Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), the Court said:
Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.... If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold.
After Dunn a number of circuits--including ours--believed that they had found some exceptions to that general rule, but in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) the Supreme Court disagreed, although it did shift the basis of the rule from the principle of res judicata to other principles. In so doing, it recognized the intellectual difficulties that inconsistent verdicts can cause. As it said:
[I]nconsistent verdicts--even verdicts that acquit on a predicate offense while convicting on the compound offense--should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.
Id. 469 U.S. at 65, 105 S.Ct. at 476. Nevertheless, the Court rather clearly felt that the arguments for exceptions to the Dunn rule were "imprudent and unworkable...." Id. 469 U.S. at 66, 105 S.Ct. at 477. It concluded by reflecting upon the intractable character of the problem and stating:
Given this impasse, the factors detailed above--the Government's...
To continue reading
Request your trial
-
U.S. v. Hollingsworth
...an entrapment defense. Jacobson v. United States, supra, --- U.S. at ---- and n. 2, 112 S.Ct. at 1541 and n. 2; United States v. Hart, 963 F.2d 1278, 1283 and n. 1 (9th Cir.1992). Nor did CIAL ever attract a single customer other than Hinch--who also was the only person who responded to the......
-
U.S. v. Davis
...no reasonable jury could have concluded that the defendants were predisposed to commit the charged offenses. See United States v. Hart, 963 F.2d 1278, 1283 (9th Cir.1992). In short, to justify an acquittal based on entrapment as a matter of law, there must be undisputed evidence that Davis ......
-
U.S. v. Davis
...no reasonable jury could have concluded that the defendants were predisposed to commit the charged offenses. See United States v. Hart, 963 F.2d 1278, 1283 (9th Cir.1992). In short, to justify an acquittal based on entrapment as a matter of law, there must be undisputed evidence that Davis ......
-
U.S. v. Lawrence
...violating 18 U.S.C. § 2113(d) was inconsistent with jury's verdict of acquittal on charge of 18 U.S.C. § 924(c)); United States v. Hart, 963 F.2d 1278, 1280 (9th Cir.1992) (review for inconsistency is In light of these authorities, the district court was on shaky footing to even entertain L......