U.S. v. Diggs, 92-3456

• Decision Date: 04 November 1993
• Docket Number: No. 92-3456,92-3456
• Citation: 8 F.3d 1520
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald DIGGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1520

8 F.3d 1520

UNITED STATES of America, Plaintiff-Appellee, v. Donald DIGGS, Defendant-Appellant.

No. 92-3456.

United States Court of Appeals, Tenth Circuit.

Nov. 4, 1993.

D. Blair Watson (Jackie N. Williams, U.S. Atty., with him on the brief), Asst. U.S. Atty., Wichita, KS, for plaintiff-appellee.

Jordan E. Clay (Stephen E. Robison with him on the brief), of Fleeson, Gooing, Coulson & Kitch, Wichita, KS, for defendant-appellant.

Before SEYMOUR, BARRETT and ANDERSON, Circuit Judges.

BARRETT, Senior Circuit Judge.

Donald Diggs (Diggs) appeals from the district court's judgment sentencing him to seven and one-half (7 1/2) years imprisonment, five years of supervised release, and a $50.00 special assessment, following his conditional plea of guilty to Count I charging him with possession of cocaine base with intent to distribute on or about November 25, 1991, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The plea was conditioned upon Diggs' challenge to the district court's order denying his motion to dismiss Count I for alleged outrageous government conduct in conducting a "reverse sting" drug operation.

On appeal, Diggs argues that (1) the acts of government agents in conducting the "reverse sting" and inducing him to take possession of four ounces of crack cocaine constituted outrageous conduct requiring that the district court dismiss the indictment against him, and (2) the conduct of the government agents and the totality of the circumstances surrounding his arrest and the charges lodged against him required the district court to make a downward departure from the sentencing guidelines pursuant to U.S.S.G. § 5K2.0.

Facts

The facts recited here have been gleaned from the pleadings, the transcript of proceedings on Diggs' Motion to Dismiss which was heard on August 18, 1992, together with the transcript of the sentencing proceeding.

Detective Jerry W. Harper of the Wichita Police Department testified that the police became aware that Diggs had been involved in drug trafficking prior to June 18, 1991. Prior to that date, a postal inspector in Kansas City opened a package containing a coffee maker with a quantity of cocaine installed therein. After removing a portion of the cocaine, the package was restored and permitted to continue its travel to a Wichita, Kansas, residence under surveillance. The package contained an electronic device intended to alert surveillance officers of its whereabouts. This package was removed from a Wichita residence by Diggs and a Wendell Jones during the early morning hours of June 18, 1991. Both entered a vehicle with the package, and police officers stopped the car. Diggs, a prominent Wichita attorney, had pencilled on the package "contents of package possible contraband for police, Donald Diggs" with his Bar number and the date. While no prosecution of Diggs was pursued, the incident attracted considerable media attention and alerted Wichita police to Diggs' possible involvement with drugs. Detective Harper testified that law enforcement officers thereafter learned that Diggs was a drug user.

Sedgwick County Sheriff's Department Detective Robert T. Benton testified that he saw television reports of the June 18, 1991, incident, and later learned that the district attorney had declined prosecution. In November of 1991, Benton was assigned to the Drug Enforcement Administration (DEA) task force in Wichita, Kansas. He testified that one Glen Smith, a government informant, told him that Diggs had a drug habit.

Smith had been previously arrested on May 28, 1991, for a serious drug offense. He had agreed to cooperate with the DEA task force in the hope that he would get a break on his sentence. Smith had a cocaine habit when arrested. Following his arrest, Smith informed the task force that he had sold cocaine to Diggs. He related that on one occasion, Diggs contacted him about buying 2.2 pounds of cocaine and when Smith quoted a price, Diggs stated that he could obtain it cheaper elsewhere. On the date of Smith's arrest, officers doing surveillance on his home observed Smith leave his home and walk a short distance southward where, in front of Diggs' home, he and Diggs conferred. Smith related to Detective Benton that Diggs informed him that police had his (Smith's) home under surveillance and that he (Diggs) had really pulled off one in the postal case.

Detective Benton testified that he decided in early November, 1991, to set up a reverse sting operation out of Smith's house in order to target Diggs, predicated on Smith's statements that Diggs had purchased cocaine from him and Diggs' comments about the postal case. Benton had been involved in narcotics investigation for five years and had set up ten or fifteen reverse stings, i.e., operations wherein the government offers to sell controlled substances to a targeted person or persons, rather than offering to purchase controlled substances from the targeted person or persons. In setting up the reverse sting, Detective Benton had no knowledge that Diggs had ever sold cocaine, but only that Diggs was attempting to acquire large quantities of cocaine. The task force did not have information as to what Diggs did with the cocaine after acquiring it. Benton had been told by Smith, however, that Diggs had a drug habit. Smith had disclosed that Diggs had purchased drugs from him and that Diggs had inquired about the price of a kilogram of cocaine.

Detective Benton determined that among the investigative options, he believed that the best course of action in the Diggs case was to have Smith contact Diggs and offer to sell a quantity of cocaine to him. Benton testified that he considered other options, but because the task force did not know of any cooperating individual (informant) who had purchased cocaine from Diggs, they would be unable to introduce an agent or informant to Diggs for the purpose of buying cocaine. Furthermore, because Diggs was practicing law from his residence, physical surveillance would likely not provide evidence of Diggs' illegal drug activities inasmuch as law officers could not discern Diggs' legal clients from his cocaine clients.

Thereafter, Benton, Detective Terry Parham and Wichita Police Department chemist Bryant made about four ounces of crack cocaine at police headquarters which were later released from police custody to Smith for purposes of the "reverse sting" investigation of Diggs. The street value of the four ounces of crack cocaine was estimated at between $12,000 and $18,000.

For purposes of the "reverse sting" investigation of Diggs, Smith was outfitted with a cassette recorder used during at least three contacts Smith made with Diggs from Smith's house. Further, on two occasions contacts between Smith and Diggs were audio and video recorded. They were not of very good quality.

During their first meeting at Diggs' home, Smith informed Diggs that he had some crack cocaine for sale. Diggs stated that he wanted to buy an ounce of powder cocaine. Smith asked Diggs to come to his house on November 21 to do a drug deal. Diggs did not appear that day so on the evening of November 21, Smith phoned Diggs and asked him to come to his house. Diggs went to Smith's home. Smith showed Diggs the four ounces of crack cocaine and informed him that he had a small quantity of cocaine powder. Smith offered Diggs a price of $3,300 for the four ounces of crack cocaine, explaining that he had no outlet for it. There was considerable discussion about price.

On the evening of November 25, 1992, Smith and Diggs met again at Smith's home. This meeting was videotaped. Diggs had previously weighed the crack cocaine and insisted that the package was ten grams short of four ounces, or nearly one-quarter pound. Smith asked Diggs if he could "move" the crack cocaine. Diggs responded that he could move it quick. Smith then offered Diggs the crack cocaine for $3,100. Diggs responded that he did not have the money, but that he had a contact for sale of the crack cocaine named Huey Brown, a UPS supervisor, who was also known as Hymie Rosenthal. Smith had previously informed the officers that he had "fronted" a small amount of powder cocaine a week or two before with Diggs, and that Diggs still owed him $40.00.

After Smith quoted the price at $3,100, Diggs informed him that he would deliver $1,550 the following day. He also asked Smith to weigh him out an ounce and that he would bring $1,000 right back.

Diggs was arrested as he departed from Smith's house in possession of the crack cocaine. He thereafter informed the police that he intended to sell the crack cocaine to Harold Brown.

Discussion-Disposition

I.

Appellant Diggs argues that the acts of the government agents in conducting the "reverse sting" and inducing him to take possession of the four ounces of crack cocaine on November 25, 1991, constituted outrageous conduct requiring the district court to dismiss the Indictment against him.

We review this issue de novo. United States v. Clonts, 966 F.2d 1366, 1369 (10th Cir.1992); United States v. Giles, 967 F.2d 382, 386 (10th Cir.1992).

With the exception of Jacobson v. United States, --- U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), neither the Supreme Court or this court have ever reversed a conviction on the ground of outrageous governmental conduct. In Jacobson, the Court held that the prosecution, as a matter of law, failed to present evidence in support of the jury verdict that Jacobson was predisposed, independent of the government's acts, to violate the law by receiving child pornography through the mail. The court held that the government agents originated the criminal design, implemented in an innocent person's mind the disposition to commit a criminal act, and then induced the commission of the crime so that the government could prosecute. The court stressed the fact that the defendant was the target of 26 months of repeated government mailings and communications, which...