U.S. v. Barnes, 85-2315
| Decision Date | 05 August 1986 |
| Docket Number | No. 85-2315,85-2315 |
| Citation | 798 F.2d 283 |
| Parties | 21 Fed. R. Evid. Serv. 711 UNITED STATES of America, Appellee, v. Maurice G. BARNES, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph A. Colussi, Madison, Ind., for appellant.
Thomas M. Larson, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
Maurice G. Barnes was convicted of distributing cocaine and conspiring to distribute cocaine. On appeal, Barnes argues that: 1) a government agent's misconduct violated his due process rights and should have resulted in a dismissal of the charges against him, 2) he was entrapped as a matter of law, and 3) his sixth amendment right of confrontation was violated when he was denied the opportunity to impeach a government agent's credibility during cross-examination.
We conclude that Barnes' right of confrontation was violated and that the violation does not constitute harmless error. Accordingly, we vacate Barnes' conviction. Because we reject his other contentions, Barnes may be retried if the government continues to seek his conviction.
Barnes sold one-eighth ounce of cocaine to Jim Case, a paid undercover government informant, on June 13, 1985. He also attempted to sell one ounce of cocaine to Case on June 25, 1985. Two separate indictments charged him with distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and with conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846.
Barnes' defense was entrapment. He contends that he is a "pliable, middle-aged alcoholic who knew nothing about cocaine distribution." He sold the cocaine to Case, he asserts, as an act of friendship towards Case only after Case spent over three months developing a close relationship with him and overcoming his reluctance to engage in the drug trade.
Barnes' relationship with Case actually began in December of 1981 at a time when they were both employed in a temporary labor pool. 1 While working together, Case offered Barnes a marijuana cigarette. Barnes accepted. Barnes admits that he later purchased marijuana from Case on several occasions during 1982 and 1983. Case testified that Barnes also purchased amphetamines and cocaine, and that sometimes they reversed roles, and Barnes sold such drugs to Case. 2 Barnes disputes these facts.
Barnes plays down his illegal drug purchases, claiming that he used the marijuana primarily to lessen his dependence on alcohol. He further testified that he purchased his last supply of marijuana from Case in July of 1983 and thereafter, at the urging of his wife, discontinued using marijuana. He had no contact with Case during the remainder of 1983 or during 1984.
In July of 1984, Case began working as a paid informant for the government. He operated under the direct supervision of Carl Hicks, an agent with the Drug Enforcement Administration (DEA). Case's job was to select targets for undercover investigations and then arrange for the targets to sell him illegal drugs. In furtherance of this position, Case decided to contact Barnes.
Case testified that he called Barnes at work and left a message. A week later, Barnes returned Case's call. When Case told Barnes that he needed to purchase some cocaine, Barnes said he could help. Case and Barnes then made arrangements over the telephone for the two cocaine sales involved in this case. The first sale, according to Case, occurred approximately ten days after Case's first call to Barnes.
Barnes' version of the events is radically different. According to Barnes, Case began telephoning him at his office in March of 1985 and at his home during the following month. Initially, Barnes had refused to return Case's calls. In May, Case informed Barnes that his drug supplier had been arrested and that he needed a source of cocaine. Barnes said he could not help. Case, however, continued calling. After some time, the frequency, source, and location of the calls began to cause problems for Barnes. His employer questioned him about the calls because he thought Barnes was doing contracting work "on the side" for Case. His wife also questioned him, because she feared that Barnes was again purchasing marijuana from Case. In early June, Barnes felt he could avoid Case no longer, and finally agreed to locate a source of cocaine for him. He contacted Phil White, a coworker, because he had overheard White talk about drugs. Arrangements for the two sales were then made over the telephone. The first sale, according to Barnes, occurred approximately three and one-half months after Case's first call.
Barnes was arrested before the second sale was completed. 3 Thereafter, the indictments against Barnes were entered.
Prior to trial, Barnes filed a motion to dismiss the indictments. The motion contained the following allegations:
[A] government agent, Carl Hicks of the Drug Enforcement Administration, has made false statements under oath and has made intentional misrepresentations to government and appointed counsel about the existence of exculpatory tape recorded conversations concerning Mr. Barnes. Agent Hicks has also violated court orders, ignored written requests of counsel, and destroyed or lost other recorded conversations. His misconduct has violated the constitutional due process rights of Mr. Barnes and the supervisory powers of the federal courts, and has corrupted the criminal justice system.
The "tape recorded conversations" alluded to in the motion concern telephone calls between Case and Barnes. Case had recorded the calls in furtherance of the DEA's investigation into Barnes.
Initially, the government provided Barnes with a tape of six such conversations. Each of these six conversations had taken place on June 25, 1985--the day of the second cocaine sale. On three separate On September 4, 1985 Hicks revealed a second set of nine taped conversations which had taken place between June 10, 1985 and June 24, 1985 (but not on June 13, 1985--the day of the first cocaine sale). In several of these tapes Hicks' voice was audible in the background.
occasions (a July 2, 1985 preliminary hearing, a July 30, 1985 omnibus hearing, and an August 2, 1985 interview) Hicks told the prosecutor, Robert Larsen, and Barnes' counsel, Joseph Colussi, that no other recorded conversations existed. He also told them that he was not aware of any conversations between Case and Barnes other than those on June 25, 1985.
After Barnes filed his motion to dismiss, Hicks submitted an affidavit admitting that he had previously known about the second set of taped conversations. He claimed that he did not turn them over earlier because he had thought that he had only been asked to turn over tapes of conversations occurring on the days of the two cocaine sales. He also declared that he had not thought that the tapes were needed by Barnes.
After holding an evidentiary hearing on the motion to dismiss, the trial court ruled that, "assuming all evidence has now been made available to defense counsel, the severe sanction of dismissal of [the] indictment is not warranted." Sept. 13, 1985 Order at 3. The court observed that "Hicks" failure to disclose the existence of the * * * [second set of] tapes is suspect, especially in light of the presumed knowledge and experience gathered in thirteen (13) years of work as an FBI Agent." Id. at 2. Nevertheless, the court found that "Hicks may have misunderstood the nature of the Government's requests * * * [and] there is no evidence that Hicks intentionally destroyed, altered or concealed these tape recordings." Id. at 1.
Three days later, the case proceeded to trial. Hicks testified on direct examination about his role in the undercover investigation of Barnes, including his duties with respect to identifying the tapes, and about the second cocaine sale at issue in this case. On cross-examination, Barnes asked him about his pretrial statements denying that he had monitored telephone calls on other days. Barnes then attempted to ask Hicks about his pretrial statements denying that any telephone conversations were taped other than those occurring on June 25, 1985. The government, however, objected on the basis that this matter had been settled by the trial court's ruling on Barnes' motion to dismiss. The court accepted the government's reasoning and sustained the objection despite Barnes' complaint that the questioning was germane to the issue of Hicks' credibility. Barnes made an offer of proof on the matter and the case continued.
After the case came to a close, Barnes filed a motion for a judgment of acquittal. The motion alleged that the evidence established he had been entrapped as a matter of law and that his due process rights had been violated by the government's suppression and destruction of exculpatory evidence, and by its use of perjured testimony. The motion was denied and the jury found Barnes guilty. Barnes was sentenced to two years imprisonment, a three-year special parole term, and probation following his release from custody. He has been at liberty pending the resolution of this appeal. We now deal with the three issues raised by Barnes.
Both the prosecution and the defense asked Hicks to turn over all tapes of conversations between Case and Barnes. These tapes were useful to Barnes' entrapment defense primarily as evidence of the delay between Case's initial contact with Barnes and the first cocaine sale. Barnes also attempted to use the actual content of the tapes to show his inexpertise and lack of knowledge about cocaine sales. It thus appears that Barnes has taken steps to meet the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) requirements: a request by the defense for evidence which is favorable to the defense and which is material. 4 See Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562,...
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