U.S. v. Daniels

• Decision Date: 05 May 1978
• Docket Number: No. 77-5251,77-5251
• Parties: 3 Fed. R. Evid. Serv. 580 UNITED STATES of America, Plaintiff-Appellee, v. John Arthur DANIELS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 535

572 F.2d 535

3 Fed. R. Evid. Serv. 580

UNITED STATES of America, Plaintiff-Appellee, v. John Arthur DANIELS, Defendant-Appellant.

No. 77-5251.

United States Court of Appeals, Fifth Circuit.

May 5, 1978.

N. Graves Thomas, Shreveport, La. (Court-appointed), for defendant-appellant.

Edward L. Shaheen, U. S. Atty., D. H. Perkins, Jr., James E. Wilson, Asst. U. S. Attys., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before HILL, RUBIN and VANCE, Circuit Judges.

JAMES C. HILL, Circuit Judge:

John Arthur Daniels, the appellant, was found guilty by a jury of possession of heroin with intent to distribute and of distribution of heroin in contravention of 21 U.S.C. § 841(a)(1). The defendant makes fourteen assignments of error on this appeal, one of which we find necessitates reversing and remanding the case for a new trial.

The parties in the case on appeal agree on most of the underlying facts. The defendant had used heroin with Rickey Campbell, a paid "cooperating individual" (CI) for the Drug Enforcement Administration (DEA), before the heroin purchase involved in this case. On October 19, 1976, Campbell and two DEA undercover agents, John Felts and Bernard Harry, were unsuccessfully attempting to contact a certain narcotics trafficker to make an undercover drug purchase. During this unsuccessful stake-out, Campbell saw the defendant and called for him to come over to the car in which Campbell and the DEA agents were waiting. Campbell told the defendant that he was suffering from withdrawal pains, and he asked the defendant to help him locate some heroin. The defendant subsequently drove with Campbell and the DEA agents to a residence, where the defendant arranged for and consummated the purchase of the heroin involved in this case. The purchase was made with money provided by the DEA agents, and the agents gave the defendant $20 after the heroin purchase. At trial, the defendant attempted to prove that he had been entrapped into buying the heroin. The defendant also attempted to prove that he had never actually or constructively possessed the heroin and that, therefore, he was not guilty of possession with intent to distribute.

We first address the error that necessitates reversal and remand for a new trial. When a defendant raises the defense of entrapment, the primary focus of the trial is on the defendant's predisposition. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Dickens, 524 F.2d 441 (5th Cir. 1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). By raising the defense of entrapment, the defendant opens himself up to a "searching inquiry into his own conduct and predisposition . . .," Sorrells v. United States, 287 U.S. 435, 451, (53 S.Ct. 210, 216, 77 L.Ed. 413) (1932), and the government may introduce evidence that would be otherwise inadmissible. United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). In the case on appeal, the government overstepped even these broad boundaries of admissibility by introducing evidence of an unrelated post-crime act involving the defendant.

Approximately three months after the heroin sale involved in this case, law enforcement officers stopped a car in which the defendant was a passenger. Although the driver was arrested for possession of a sawed-off shotgun, the record does not reflect why the car was stopped. The day after this incident, which was six days before the defendant was indicted in the case on appeal, Special Agent Fred Shanks of the Bureau of Alcohol, Tobacco, and Firearms (ATF) interviewed the defendant. In a signed written statement, the defendant disclosed that he had been a passenger in the car when it was stopped and that he had placed the shotgun under the car seat at the driver's request. The defendant also identified the gun that had been seized from the driver.

Eight days after the defendant's indictment and arrest on the charges involved in this suit, four days after his arraignment, ATF Agent Shanks again interviewed the defendant. Shanks obtained a second signed written statement from the defendant. The statement does not reflect whether any witnesses were present or whether the defendant was advised of his Miranda rights. The defendant was not represented by counsel during this interview, and it is unclear whether his attorney was even apprised that Shanks was going to interview the defendant. This second statement differs in only one significant respect from the first statement. The defendant disclosed that the driver had told him that the purpose for their trip was "to take some dope away from a man." During the defendant's trial on the drug charges, the government attorney was permitted to cross-examine the defendant concerning this statement over defense counsel's objection. The trial court judge determined that the information in the statement was probative of the defendant's predisposition to possess and distribute heroin. The statement itself was not introduced into evidence.

Although admission of this evidence might raise an issue concerning the government's use of the "fruits" of an interview conducted without giving the defendant his Miranda warnings, we pretermit consideration of this issue because our analysis renders such consideration unnecessary. Admission of this evidence to prove predisposition to violate the drug laws was improper for two reasons. The act occurred subsequent to the allegedly entrapped conduct, and gun possession is not probative of a defendant's predisposition to violate the drug laws. The government argues that this court's decisions in United States v. Dickens, 524 F.2d 441 (5th Cir. 1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976), and in United States v. Jenkins, 480 F.2d 1198 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 256, 38 L.Ed.2d 151 (1973), authorize the introduction of this type of evidence to prove predisposition. These decisions do not stand for that proposition.

The defendants in Dickens had been charged with drug violations pursuant to 21 U.S.C. § 841(a)(1) and § 846. The defendants in that case raised the defense of entrapment. This court held that the government could introduce evidence concerning one of the defendant's conduct and statements occurring subsequent to his initial contact with the undercover agent but prior to the completion of the crime. The conduct and statements held to be admissible in that case occurred in furtherance of the very crimes with which the defendant was charged. The defendant in Jenkins had been charged with knowingly and intentionally distributing heroin, and he raised the defense of entrapment. This court held that the government properly introduced the defendant's post-crime statement that he would be willing to get more drugs for the undercover agent. The defendant's statement immediately related to the crime with which he was charged. In the case on appeal, however, the defendant's act, three months subsequent to the incident under investigation, had no connection with the drug charges for which he was standing trial.

The defense of entrapment is intended to protect otherwise innocent persons who have been induced by the government to break the law. To show that at some later date the person who has been innocent before being entrapped participated in a single pursuit of like conduct may have some relevancy, but its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Fed.R.Evid. 403. In addition, the evidence of subsequent participation in a completely unrelated criminal act, possession of the sawed-off shotgun, appears to be of no probative value with respect to predisposition to sell narcotics and to be substantially prejudicial. Therefore, we must reverse the defendant's conviction and remand the case for a new trial.

We are compelled to comment on Agent Shanks' actions although they did not affect our decision. Shanks' first interview with the defendant may have come within the ambit of this court's decision in United States v. Vasquez, 476 F.2d 730 (5th Cir.), cert. denied, 414 U.S. 836, 94 S.Ct. 181, 38 L.Ed.2d 72 (1973). ¹ The defendant's first statement related only to Shanks' gun investigation. Shanks' second interview with the defendant, however, has at least the facial characteristics of distorting the purpose underlying the holding in Vasquez. Although Agent Shanks purportedly took the second statement only as part of his investigation concerning the sawed-off shotgun, the second statement contained only one paragraph about the gun incident. The only new information of substance elicited in the second statement concerned the driver's drug-related purpose for making the trip. This purpose had no relevance to the gun investigation. It related solely to the drug charges against the defendant. The government may not use Vasquez as a tool to extract statements from a defendant that will strengthen the government's case against him. This court cannot, and will not, tolerate such prosecutorial misconduct.

Although the improper admission of evidence concerning the defendant's statements to Shanks constitutes reversible error, sound judicial administration requires that we discuss those assignments of error that may recur in the new trial. Rivers v. United States, 400 F.2d 935, 942 (5th Cir. 1968). To prove predisposition, the Caddo Parish Deputy Sheriff testified concerning three Caddo Parish Sheriff's Department anonymous informant investigative reports. The reports were dated December 12, 1971, August 21, 1972, and June 21, 1976. Although the witness had prepared the 1976 report, other Caddo Parish deputy sheriffs had prepared the 1971 and 1972 reports. The witness testified that the information in the reports was to the effect that...