U.S. v. Campbell
| Citation | 874 F.2d 838 |
| Decision Date | 09 January 1989 |
| Docket Number | No. 87-2013,87-2013 |
| Parties | UNITED STATES of America, Appellee, v. Andrews Bruce CAMPBELL, Defendant, Appellant. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Douglas C. Marshall, by Appointment of the Court, with whom Marshall, Rosen & Marshall, Boston, Mass., was on brief, for defendant, appellant.
Nicholas M. Gess, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and Jonathan R. Chapman, Sp. Asst. U.S. Atty., Portland, Me., were on brief, for the U.S.
Before BOWNES and SELYA, Circuit Judges, and PETTINE, ** Senior District Judge.
The defendant-appellant, Andrews Bruce Campbell, an attorney and member of the Maine Bar, was convicted of conspiracy to possess with intent to distribute marijuana in violation of 18 U.S.C. Sec. 2; 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(D) & 846, and of possession with intent to distribute marijuana in violation of 18 U.S.C. Sec. 2; 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(D). At trial, the defendant admitted to the alleged criminal conduct but asserted the defense of entrapment. He now appeals alleging numerous grounds for reversal. We affirm the convictions.
We recite the facts in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Indorato, 628 F.2d 711, 713 (1st Cir.1980).
On December 17, 1986, Sylvia Lane, a long-time drug user and seller, was stopped for a traffic violation in Gray, Maine. The officer at the scene discovered drugs and called in Special Agent Patrick M. Lehan of the Cumberland County Task Force, which is a joint federal-state drug investigation unit. Agent Lehan arrived and asked Lane if she wished to cooperate and provide the government with the names of her suppliers and of other drug sellers. She declined the offer and was arrested and booked on drug trafficking charges. She was subsequently released on bail.
During this period of release, Lane became concerned over what would happen to her invalid son, of whom she had sole care, if she went to jail as a result of her arrest. Between December 17, 1986 and January 5, 1987, she telephoned Agent Lehan to discuss whether she could get her charges dismissed if she cooperated. Lehan told her that he would discuss it with the district attorney.
At about this same time, Lane's prior drug dealings had placed her in an even more precarious position. She had used the proceeds from various drug sales to pay for her bail and the bail of other incarcerated family members. This money was supposed to have gone to her supplier, Juan Manuel Alfonso, to pay for previous orders of marijuana and cocaine. Since Manuel Alfonso was a renowned and ruthless drug operator, Lane feared physical violence unless she could come up with his money.
Campbell had represented one of Lane's sons in an unrelated criminal case. This son suggested to his mother that Campbell might loan her some money to help pay off her debt to Manuel Alfonso. In early January, 1987, Lane telephoned Campbell from a shopping center in Topsham, Maine, and set up a meeting at a nearby McDonald's restaurant. In response to Lane's request for a loan, Campbell asked her if it would help if he "fronted" 1 her some marijuana. He suggested that he could provide her with a few pounds of marijuana at $1,000 per pound. Lane had not mentioned selling drugs to Campbell before that time, but when he offered the transaction she accepted. Campbell then took Lane to a motel room in a nearby town to meet a man named "Dave." After Campbell had vouched for Lane's credibility, Dave gave her three one-pound bags of marijuana.
Lane immediately sold one of the bags in Lewiston, Maine but left the other two with a friend. Soon these two bags were divided up and used to pay off debts Lane had with people in the area. Lane did not use any of the marijuana to reduce her debt with Manuel Alfonso, and her fear for her personal safety and that of her family increased.
Lane contacted Agent Lehan again, telling him of her predicament and of her dealings with "Dave" and Campbell. Lane agreed to cooperate with the government and to attempt to arrange an undercover deal to buy marijuana from the appellant.
On January 12, 1987, Lane, fitted with a body wire, met Campbell at his office to pay the $1,000 she owed him for the pound of marijuana she had sold. Also in attendance was Donald Lagasse. As part of the sting operation, Lane told Campbell that she had a buyer who wanted to buy ten pounds of marijuana. Since Campbell and Lagasse did not know that Lane had distributed the other two pounds of marijuana, she informed them that the buyer would accept those two pounds along with eight additional pounds to fill his ten-pound order. She also stated that this buyer could handle over one hundred pounds of marijuana if this deal went through smoothly. The two were interested in the deal but Campbell did not want to be physically present at the exchange because, as an attorney, he had too much to lose if he got caught. Lane, however, insisted that he be present and Campbell acquiesced. The exchange was set up for the following day.
As the deal was planned, Lane and her purported buyer, Agent Lehan, would rent a room at a hotel as would Campbell and Lagasse. Lane would be the go-between; she would check the quality of the marijuana, and, if all was satisfactory, she would bring Campbell and Lagasse the money.
On January 13, 1987, the day of the exchange, Lehan picked up Lane and drove her to the hotel where the purported sale was to take place. A number of law enforcement officers staked out the location. After Lane and Lehan had arrived at the hotel, Lane, again fitted with a body wire, went to Campbell's hotel room. Lagasse and Campbell were in the room; they had, as agreed, eight pounds of marijuana. Lane inspected the quality and asked to take one pound back to show her buyer. Lagasse and Campbell agreed. Lane left with the marijuana and showed it to Lehan. He then ordered the arrest of Campbell and Lagasse.
At his trial, Campbell acted as his own attorney and argued that he had been entrapped. He contended that Lane, acting as a government agent, had induced him to engage in criminal activity out of sympathy for her predicament. Absent such compassion, he maintained, he never would have sold marijuana. He also argued that he had been the target of government investigation due to his representation of criminals in a number of high profile cases. The jury was instructed on the entrapment defense and returned a verdict of guilty.
Campbell now appeals alleging the following grounds: (1) the trial judge gave an erroneous instruction regarding reasonable doubt; (2) the judge erred in his entrapment instruction; (3) his sixth amendment rights were transgressed because he did not knowingly and intelligently waive his right to counsel in deciding to proceed pro se, because the court appointed standby counsel over his objection, and because he was not allowed to have counsel of choice, but was forced to have standby counsel whom he distrusted; (4) the district court unfairly prejudiced him by refusing to allow him to submit an alternative transcript of a tape recording to the jury; and (5) the court erred in allowing the government's motion to quash the subpoena of GI--a secret government informant--and this prejudiced defendant's ability to show a pattern of governmental targeting. We deal with each of these contentions in turn.
Appellant's first assignment of error is that the trial judge's explanation of guilt beyond a reasonable doubt failed to instruct the jury correctly on the government's burden of proof. Since defendant did not make a specific objection to the reasonable doubt instruction, we review it only for plain error. See Fed.R.Crim.P. 30; Aurora Figueroa v. Aponte-Roque, 864 F.2d 947, 951 (1st Cir.1989); Kelley v. Schlumberger, 849 F.2d 41, 44 (1st Cir.1988); United States v. Munson, 819 F.2d 337, 345 (1st Cir.1987); United States v. Indorato, 628 F.2d 711, 721 (1st Cir.1980). Although we see some deficiencies in the judge's instructions, we cannot say any of them amount to plain error.
The district judge instructed the jury three times concerning the standard of reasonable doubt. The first instruction came as a precharge to the jury.
As I told you earlier, this is a criminal case in which the defendant is presumed innocent until proven guilty. The indictment which has been brought against the defendant is only an accusation and nothing more, it is not proof of guilt, or anything else. The defendant starts out here with a clean slate and the burden of proof remains on the government until the conclusion of the trial. The defendant is not required to present any testimony or to interpose any proof with respect to innocence, to present any evidence, or to testify himself. Since he has the right to remain silent, the law in the United States prohibits the jury in arriving at its verdict from considering the fact that he may not have testified.
The government is required to prove every essential element of the offenses charged against the defendant beyond a reasonable doubt.
A reasonable doubt is a fair doubt based upon reason and common sense, the kind of doubt that would make a reasonable person hesitate to act. It does not mean proof beyond all doubt, for rarely can anything be proven to an absolute certainty. The essence of the reasonable doubt standard is that the guilt of the accused must be established based upon admissible evidence and the proper inferences drawn therefrom.
In his opening, defendant attempted to define reasonable doubt in terms of proof "to a moral certainty" and a...
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