U.S. v. Cannon

• Decision Date: 10 July 1996
• Docket Number: 95-2233,Nos. 95-1996,95-1997,s. 95-1996
• Citation: 88 F.3d 1495
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephanie CANNON, also known as Stephanie Lynch, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Keith Anthony CANNON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Stephanie CANNON, also known as Stephanie Lynch, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Keith Anthony CANNON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1495

88 F.3d 1495

UNITED STATES of America, Plaintiff-Appellee, v. Stephanie CANNON, also known as Stephanie Lynch,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Keith Anthony CANNON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Stephanie CANNON, also known as Stephanie Lynch, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. Keith Anthony CANNON, Defendant-Appellee.

Nos. 95-1996, 95-1997, 95-2233.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1995.

Decided July 10, 1996.

Gene W. Doeling, Fargo, ND, argued, for Stephanie Cannon

Richard Henderson, Fargo, ND, argued, for Keith Anthony Cannon.

Keith William Reisenauer, Fargo, ND, argued, for appellee.

Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

HANSEN, Circuit Judge.

Stephanie Cannon and Keith Anthony Cannon were convicted of various drug and firearm offenses. They challenge the validity of their convictions, raising a number of issues including entrapment, outrageous government conduct in violation of their due process rights, and prosecutorial misconduct. The United States cross appeals, contending that the district court erroneously sentenced the defendants. We reverse and remand.

I.

Viewing the evidence in the light most favorable to the verdicts, a reasonable jury could have found the following.

Keith Cannon and Stephanie Cannon (collectively, "Defendants"), residents of Minneapolis, Minnesota, sold cocaine base on four occasions to Special Agent Charles Sherbrooke, an undercover officer with the West Central Minnesota Drug Task Force. The first transaction was recorded on audio tape, and the latter three transactions were videotaped.

Defendants met Agent Sherbrooke for the first time in Alexandria, Minnesota, when the parties were introduced by a confidential informant. Defendants sold cocaine base to Agent Sherbrooke and told him they were interested in acquiring firearms. The parties made arrangements to meet again in Alexandria within a week.

As planned, Defendants sold more cocaine base to Sherbrooke less than a week later. When Sherbrooke asked Defendants whether they were still interested in obtaining firearms, Defendants again indicated their interest, this time specifically stating that they wanted two .38 caliber snub nosed revolvers, two derringers, and one .25 caliber automatic pistol. Sherbrooke said he had a supplier who could provide those weapons and offered to get anything else Defendants might want. He explained that the deal would have to take place in North Dakota, however, because there was an arrest warrant out for his supplier in Minnesota. When Sherbrooke kidded Defendants about their reasons for wanting the weapons, Defendants said they were "desperate" because they had had drugs stolen from them in the past.

Two days later, the parties met for a third time in Alexandria, and Sherbrooke again purchased cocaine base from Defendants. The conversation immediately turned to the plans for the next transaction. Stephanie Cannon again told Sherbrooke she was interested in obtaining five handguns, and Sherbrooke replied, as he had at the prior meeting, that his supplier could get her the handguns and anything else she might want. At three points in the conversation, Sherbrooke stated that Defendants would have an assortment of about 15 weapons from which to choose. When Sherbrooke asked how much a couple of "oz's" of cocaine base would cost him, Keith Cannon answered and then noted that the parties could trade guns for drugs. Before parting, the parties agreed to meet in Fargo, North Dakota, the following week.

As scheduled, the fourth and final transaction occurred at a motel in Fargo. Agent Sherbrooke introduced Defendants to Special Agent John Keating of the Bureau of Alcohol, Tobacco, and Firearms, who posed as Sherbrooke's firearm supplier. When everyone was introduced, Sherbrooke served Defendants alcoholic drinks. After some initial small talk, the parties discussed the terms of sale for the cocaine base Defendants had brought. The conversation then turned to the subject of firearms.

Agent Keating had with him 10 firearms in a dufflebag, including three 9 mm semi-automatic pistols, two .25 caliber semi-automatic pistols, two .38 caliber revolvers, one .357 magnum caliber revolver, and two MAC-type machine guns--one a .45 caliber and the other a .380 caliber. Keating removed each weapon from the bag, briefly identifying it and showing it to Defendants. When Keating described the larger of the machine guns as capable of holding 30 rounds, Sherbrooke called it a "neat item." Keating explained that the smaller machine gun could hold 15 rounds.

Defendants proceeded to inspect the various firearms. Keith Cannon expressed his concern that the .25 caliber semi-automatic pistol would not inflict enough damage. Agent Keating disagreed but noted it was not as powerful as the machine guns. When Keating explained again that the larger machine gun could hold 30 rounds, quite a bit of protection for Defendants' drug business, Sherbrooke chimed in that that was a "lot of rock and roll." After some discussion on the various makes of handguns, Defendants selected three of them.

The parties' attention then turned to a discussion on how Sherbrooke had been shorted in an earlier deal with the Defendants. After they resolved that issue, Agent Sherbrooke inquired whether Defendants wanted any of the remaining guns. Keith said no. Keith stated, however, that he wanted to get together with Keating later to purchase an "Uzi or some type of automatic weapon." Stephanie pointed to the machine gun and said, "That's it." Keith explained the dangers the Defendants face on the street and said he needed a powerful gun for protection. He concluded he wanted a machine gun with 50 rounds, because "I get crazy sometimes." Keith told the officers he wanted to purchase such a gun at their next meeting.

Sherbrooke asked Keating whether the machine guns would be available for sale in the future. Keating replied that he expected to sell the guns he had brought to this meeting to another buyer if Defendants did not purchase them. Keith stated he would like to purchase a machine gun at the next meeting, again stressing the need for protecting the business. He stated, "I believe in sprayin' everything that's moving." Both Defendants said that, in the meantime, the handguns would hold them over. Sherbrooke picked up one of the machine guns and began examining its features. Keating noted the gun's rapid rate of fire.

Stephanie then asked whether the Defendants could trade drugs for a machine gun. The agents answered affirmatively, and the parties agreed to barter three ounces of cocaine base for three handguns, the MAC-type .380 caliber machine gun, and $4,600 in United States currency. After the exchange, Defendants carried their newly acquired weapons out of the motel, where law enforcement officers were waiting.

Defendants were arrested and charged in a nine-count indictment, which included counts of distribution of cocaine base and conspiracy to distribute and to possess with intent to distribute, in violation of 21 U.S.C. §§ 841(a) and 846; of knowingly using and carrying firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and of knowingly and unlawfully possessing a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). Keith Cannon was also charged with being a felon knowingly in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). One count was dismissed by the Government before trial.

The case proceeded to trial in the United States District Court for the District of North Dakota. Defendants filed a pretrial motion to dismiss the indictment, contending the officers had violated Defendants' due process rights by artificially creating venue in the District of North Dakota. Defendants alternatively moved for transfer of venue pursuant to Rule 21(a) and (b) of the Federal Rules of Criminal Procedure. The district court denied these motions. Defendants also moved to dismiss the counts relating to receiving and possessing the machine gun on grounds of due process and entrapment as a matter of law. In support of this motion, Defendants referred the court to the video and audio tapes of the drug and firearms transactions, but did not provide the court copies of the tapes. Finding the evidence before him insufficient to support Defendants' claims, the district judge denied Defendants' motion.

At trial, Defendants presented an entrapment defense, but the jury rejected it and returned guilty verdicts on all counts. Defendants raised the defense again in posttrial motions for judgment of acquittal and for a new trial. The district court denied the motions and held that Defendants were not entrapped as a matter of law. At sentencing, however, the court found that the government had engaged in sentencing entrapment and sentencing manipulation with regard to the machine gun charges. Accordingly, the court did not impose the mandatory, consecutive, 30-year sentence for knowingly using and carrying a machine gun during and in relation to a drug trafficking offense, imposing instead the mandatory, consecutive, 5-year sentence for using or carrying a firearm during and in relation to a drug trafficking offense. See 18 U.S.C. § 924(c)(1). Defendant Keith Cannon was sentenced to 216 months in prison (156 + 60) and a five-year term of supervised release, and fined $17,500. Stephanie Cannon was sentenced to 181 months in prison (121 + 60) and a five-year term of supervised release, and fined $17,500. Defendants appeal their convictions and sentences on numerous grounds, and the government cross appeals the sentences.

II.

A. VENUE

The first three drug deals occurred in Minnesota, where Defendants reside, and the fourth transaction took place in North Dakota. Defendants, both of...