U.S. v. Beal

• Citation: 961 F.2d 1512
• Decision Date: 21 April 1992
• Docket Number: No. 91-4106,91-4106
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Floyd Dewayne BEAL, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1512

961 F.2d 1512

UNITED STATES of America, Plaintiff-Appellant, v. Floyd Dewayne BEAL, Defendant-Appellee.

No. 91-4106.

United States Court of Appeals, Tenth Circuit.

April 21, 1992.

David J. Schwendiman, Asst. U.S. Atty., Salt Lake City, Utah (Paul Warner, U.S. Atty., with him on the brief), for plaintiff-appellant.

Craig S. Cook, Salt Lake City, Utah, for defendant-appellee.

Before MOORE, ALDISERT, ^* and McWILLIAMS, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

The government appeals from an order granting defendant Floyd Dewayne Beal's motion for judgment of acquittal. In a two count indictment, the defendant was charged with participating in two discrete transactions which resulted in the sale of a controlled substance to an undercover police officer. Mr. Beal admitted the nature and substance of the transactions but claimed that his participation was the result of entrapment by a government informant. The entrapment defense was the only issue submitted to the jury, which returned verdicts of not guilty on the first count but guilty on the second.

Ruling upon a subsequent motion for judgment of acquittal, the trial court concluded as a matter of law the two transactions were inseparable, and the defendant was induced to commit the second transaction by the same influence which caused him to commit the first. Resolution of the appeal lies simply in whether, upon the facts of this case, the trial court correctly ruled that the two transactions were part of one course of conduct. We conclude that it did, and we affirm the judgment of acquittal.

Despite differences over the details, the essential facts are not in dispute. Roger Silva, whom the defendant met while the two were imprisoned in 1981, was arrested by Utah police on a charge of distributing cocaine. Realizing he was "facing a 1-to-15-year sentence" and would remain in jail, (R I, 83), Mr. Silva contacted police officials to see whether they would be inclined to make a deal with him. Eventually, Mr. Silva met with Sergeant Carroll Mayes, an undercover Salt Lake City narcotics officer.

Sgt. Mayes explained he was interested in arresting large narcotics and stolen property dealers, and he would work with Mr. Silva to effect those arrests. In exchange for participating in a large scale "sting" operation which eventually snared fourteen persons, Mr. Silva was promised "that I would get all my charges dropped and dismissed completely against me if I wanted to work for them." (R I, 9). While Mr. Silva did not believe he was given a "guarantee" that his charges would be dismissed, it was his "assumption" that the more transactions he arranged, the better the deal he would get from the police. (R I, 82). Sgt. Mayes denied having made any promises to Mr. Silva, (R II, 8), but over the three month course of their relationship, he did give Mr. Silva $1,590 "just to keep him going." (R II, 9).

Sgt. Mayes instructed Mr. Silva to contact people known to Mr. Silva to see whether they were currently engaged in criminal activity. If so, Mr. Silva was to call Sgt. Mayes for further instructions. Sgt. Mayes cautioned, however, Mr. Silva was:

to be very careful in that I didn't want him trying to coerce anyone into selling drugs. I didn't want him excessively pestering people to try to get them to sell drugs, didn't want him to use anything, no threats, no nothing. Either they want to do business, they will do business; and if they don't want to, they won't. And I made it very clear to him that he needed to understand that, and he said that he did.

(R II, 8). With those instructions in mind, Mr. Silva contacted a number of people including defendant Beal.

His first attempts to reach Mr. Beal were unsuccessful. On several occasions, Mr. Silva managed to talk to defendant's mother with whom he left messages, and on others, he left messages on the family's telephone recording machine. ( R II, 151). Mr. Beal, however, tried to avoid Mr. Silva, but after at least seven attempts, id., Mr. Silva was eventually successful in achieving his quest.

Although there is disagreement over who placed the call, contact was made on November 23, 1989. During that conversation, Mr. Silva explained he was interested in obtaining methamphetamine. According to Silva, defendant responded, "he was going to school, going to school and working at that time; but he told me he could get me some, but he didn't have none right there at that time." (R I, 12). Defendant's version of the conversation differs, but both agree that Mr. Beal's reply indicated he had no drugs to sell Mr. Silva. Mr. Silva then responded he would call back to see if Mr. Beal obtained a source of supply.

After several attempts on the next day, at about 3:00 to 4:00 p.m., Mr. Silva reached Mr. Beal. (R I, 14). Mr. Silva stated his "cousin," who was in reality Sgt. Mayes, was coming to town and wanted to buy an "eight ball" of "crank" (.8 oz. methamphetamine). According to Mr. Silva, he called Mr. Beal later that day and arranged to meet at 6:00 p.m.

Sgt. Mayes and Mr. Silva drove to the meeting place at the proper time and picked up Mr. Beal who told Sgt. Mayes to follow another car to a place where the transaction would occur. When they arrived, Sgt. Mayes gave Mr. Beal $250, which the defendant took to the occupants of the other car, returning after a short wait with a packet of substance which later proved to be methamphetamine. Sgt. Mayes testified that as a "commission" for making the transaction, Mr. Beal took a "pinch" of the substance and placed it in a cellophane wrapper. (R II, 19). Defendant testified he did not keep the pinch, but returned it to the man who had supplied the substance. (R II, 119).

Within "four to five hours later," (R I, 25), Mr. Silva and Mr. Beal had another conversation. Mr. Silva testified he could not remember who made the call, (R I, 25), but Mr. Beal testified Mr. Silva called him. (R II, 87). Acting on instructions from Sgt. Mayes that the police wanted to make another buy from Mr. Beal, Mr. Silva told him "Drew" (Sgt. Mayes' undercover name) "wanted to get some more." (R I, 26). When Mr. Beal apparently indicated a willingness to serve, Mr. Silva recalled Sgt. Mayes who told him to set up the transaction. It was arranged that Mr. Silva and Sgt. Mayes would meet Mr. Beal at a convenience store near the latter's home at 11:00 p.m.

When Sgt. Mayes and Mr. Silva arrived, Mr. Beal was waiting. He got in their truck and directed them to a house nearby. Parked at the house was the same vehicle they had met during the course of the first transaction. In the house, Sgt. Mayes was introduced to the occupants, "Bob" and "Karen." After approximately an hour and forty-five minutes, Bob announced he was unable to locate his source; therefore, Mayes, Silva, and defendant agreed to leave with a promise to get in touch on the next day.

As agreed, Mr. Silva called the next day and arranged another meeting at the convenience store at approximately 3:30 p.m. (R II, 23). From there, Sgt. Mayes, Mr. Silva, and Mr. Beal again went to the residence of Bob and Karen. At the house, another transaction was concluded during the course of which Mr. Beal took money from Sgt. Mayes, went outside, and returned with a bag of a substance later identified as methamphetamine.

Mr. Silva, Sgt. Mayes, and Mr. Beal all testified to a different version of what took place in the house. Those differences notwithstanding, both Mayes and Silva agreed that before Sgt. Mayes received the substance, defendant "tested" it by injecting into his arm a solution made from the contents of the bag. (R II, 25). Mr. Beal denied doing so and stated it was Bob who made the injection. (R II, 89). Sgt. Mayes and Mr. Silva then left, concluding the second transaction.

Throughout his testimony, Sgt. Mayes reiterated that at no time did Mr. Beal appear reluctant to deal with him or otherwise indicate Mr. Beal's actions were not the product of his free will. Mr. Silva, however, repeated statements made to him by Mr. Beal that he was not dealing in "dope," and that he was working and going to school. Indeed, Mr. Silva testified that after the second transaction, Mr. Beal stated, "You know, Roger, I'm not selling dope. I done this as a favor to you." (R I, 44). ¹

For his part, Mr. Beal told the jury he arranged both transactions just to get rid of Mr. Silva and his insistent calls. (R II, 81). Indeed, he even aborted a final attempt by Mr. Silva and Sgt. Mayes to make another transaction by taking the money proffered by Sgt. Mayes and running away with it. He apparently thought by doing so he would not be asked again to broker a transaction. (R II, 132). Neither his theft of the money nor his purpose was disputed.

Mr. Beal maintained that his only interest in brokering the two consummated transactions was to make a connection between Mr. Silva and Bob so that Mr. Silva could satisfy his needs from that source and leave Mr. Beal alone. (R II, 81). Sgt. Mayes, however, said at no time when they were in Bob's presence did Mr. Beal make any effort to effect that connection. In contrast, Mr. Silva recognized from their first meeting Mr. Beal attempted to introduce him and "Drew" to Bob because Bob was the source of supply. (R I, 104).

Defendant filed a post-verdict motion for judgment of acquittal contending "the events alleged in Counts I and II were so closely connected that it is totally unreasonable to conclude that the defense of entrapment some how [sic] dissipated." The government responded, as it contends here, that each count of the indictment is a separate charge to be regarded as such by the jury; therefore, it is not unreasonable for the jury to have determined the defendant was not predisposed to commit one transaction but was predisposed to commit the other.

The district court entertained extensive argument on the motion. After considering the arguments of both sides, the court stated:

Well, I was troubled by ...