U.S. v. Fink

• Decision Date: 07 October 1974
• Docket Number: No. 73-3966,73-3966
• Citation: 502 F.2d 1
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. FINK and John A. Geders, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1

502 F.2d 1

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. FINK and John A. Geders, Defendants-Appellants.

No. 73-3966.

United States Court of Appeals, Fifth Circuit.

Oct. 7, 1974, Rehearings Denied Dec. 6, 1974.

Ralph W. Rinehart, Tampa, Fla., for defendants-appellants.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Oscar Blasingame, Anthony J. LaSpada, Asst. U.S. Attys., Tampa, Fla., Harrison T. Slaughter, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Before MOORE, ^* AINSWORTH and RONEY, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal by John Geders and Michael Fink from a judgment of conviction by the United States District Court for the Middle District of Florida, the Hon. Ben Krentzman, Judge, entered pursuant to a jury verdict. Appellants were convicted on all three counts of an indictment charging them with: (a) conspiracy to import approximately one thousand pounds of marijuana into the United States in violation of 21 U.S.C. 952(a) and 18 U.S.C. 371; (b) illegal importation of said marijuana into the United States; and (c) possession of marijuana in violation of 21 U.S.C. 841(a)(1).

The government alleged that appellants Geders and Fink conspired with seven others, Rufus Randolph Surles, Jr., James M. Mahoney, Randy Kilgore, Fred Fink, Steven Patrick, Tom Waddington (now deceased) and David Butler, to smuggle marijuana into this country by air from Columbia, South America, via Inagua, The Bahama Islands. According to the prosecution, the plot germinated in September 1972 when John Geders, Randy Kilgore and Michael Fink concluded that together they possessed the wherewithal to smuggle a large quantity of marijuana into this country. Geders agreed to provide a South American 'contact' or drug supply while Fink promised to find financial backing for the venture. Randy Kilgore assured the others that he would make arrangements with a knowledgable and trustworthy pilot who would be able and willing to fly the cargo of drugs into the United States undetected.

Michael Fink made good on his promise. He introduced James M. Mahoney and Tom Waddington to the scheme, and they agreed to supply the necessary capital. After a few false starts, Randy Kilgore found David Butler, a pilot with access to a Piper Aztec aircraft, who was willing to make the trip to Colombia for a $10,000 fee plus expenses and fifty pounds of marijuana. Additional conspirators also emerged. Rufus Randolph Surles, Jr., agreed to provide a trailer, of the type normally used by vacationers on camping trips, to which the marijuana could be transferred once it was landed. Steven Patrick agreed to drive the camping trailer.

In David Butler the other conspirators found not only an able pilot but also a man who seemed well versed in the lore of the smuggling business. On several occasions Butler alluded to his prior experience in the field. He advised his employers to land the marijuana-laden plane at Lehigh Acres, an abandoned housing development near Tampa, Florida, and made other helpful suggestions with respect to the details of the illegal importation. He suggested reentry into the United States via the Bahama Islands where he claimed to have the customs officials bribed; he suggested that the other conspirators, when meeting the plane at the time and place of unloading, should be equipped with walkie-talkies for communication with the plane and should carry roofing nails to strew in the path of would-be pursuers.

Early Sunday morning, November 26, 1972, David Butler, John Geders and Jim Mahoney boarded Butler's rented plane and took off for Colombia, South America. On the return trip, after stopping at Inagua, the plane landed at the pre-arranged location near Tampa. The marijuana was transferred from the plane to the camper which left the landing site escorted by Randy Kilgore and Michael Fink. The caravan did not get far, however, because federal agents soon closed in. Steven Patrick, the driver of the camping trailer filled with marijuana, was immediately apprehended. Kilgore and Fink eluded immediate capture but were eventually arrested.

It seems that this well orchestrated scheme never really had a chance for success. The authorities had been informed of the group's plans far in advance by the pilot, David Butler. For his help in thwarting the smuggling attempt, the United States Customs Service agreed to permit Butler to retain the fee paid to him by the other conspirators.

The trial of the conspirators began on October 9, 1973. ¹ Prior thereto Randy Kilgore and Steven Patrick pleaded guilty to a single conspiracy count and agreed to testify for the prosecution. Although David Butler was indicted along with the others, the government moved to dismiss the charges against him and the court granted the motion.

As their primary defense at trial, appellants Geders and Fink argued that they had been entrapped by Butler, the government informer. Not only did he assist them in the furtherance of the importation scheme but, according to appellants, Butler induced them to commit the crime and had been paid to do so by the government who hired Butler as a sort of modern day bounty hunter. As a matter of fact, appellant Geders who was traveling in the plane with Butler on the trip from South America, claims that when the plane landed in Inagua before its reentry into the United States he was informed by a native that Butler appeared to be working with the police. After the plane was again in the air, Geders tried to persuade Butler to slow the plane down so that he and Mahoney could dump the marijuana into the sea. Butler ridiculed Geders' apprehensions and refused to permit anyone to unload the contraband until designated rendezvous was made.

The government, on the other hand, insisted that Butler had, at all times, merely assisted a plot which had begun before he entered the picture, and that anything he did which appeared to further the conspiracy was done to gain the confidence of the conspirators, a permissible objective in undercover police work.

The entrapment defense was presented to the jury which, nevertheless, returned a guilty verdict.

On this appeal appellants urge that fourteen separate errors were made in the court below which singly or together compel reversal of the convictions rendered by the jury. Many of the claims raised by the appellants are frivolous and warrant no discussion in this court. Efficiency demands that many of the remaining questions be treated in combination.

I.

Appellants have broadly attacked the district court's handling of the entrapment issue. They argue: that the government should have been prohibited from introducing unflattering evidence with respect to defendant Geders' reputation; that the defense was unfairly barred from either ascertaining the events upon which this reputation was based or introducing rebuttal character testimony after the prosecution had attacked defendant Geders' reputation; and that the government's participation in the smuggling enterprise through its avowed agent, David Butler, was so pervasive and so critical to the consummation of the crime that any prosecution of the appellants is unconscionable.

Throughout the trial appellants placed substantial reliance on an entrapment defense, i.e., on the argument that they were reluctant participants in a criminal scheme engineered by a government agent who, for reasons of financial gain, had employed a 'tremendous sales pitch' to overcome appellants' natural antipathy toward the commission of illegal acts.

The purpose of the entrapment defense is to inhibit the use of pressure tactics by the government which cause the commission of an offense by one who is not ordinarily disposed to commit it. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1939). Naturally, the defense is not readily available to one who has evidenced an inclination to commit the type of offense with which he is charged. The government, therefore, once a defendant indicates his reliance on the entrapment defense, is permitted to tender evidence on the defendant's predisposition to commit the type of crime charged.

In this case the prosecution introduced Charles Hudson, a federal Narcotics Agent, who testified that he had talked to confidential informants and had examined intelligence files in the Hillsborough County, Florida, Sheriff's Office and had thereby ascertained that defendant Geders had a reputation in his community as a drug smuggler and distributor. When the defense asked to see the files on which the witness' testimony was based or to be given reference to the specific events contained therein, it was rebuffed by the court which admonished the defense that it would be contrary to the rules of evidence for the prosecution to admit evidence of the specific acts of defendant Geders which gave rise to his unsavory reputation.

It has long been the rule in this Circuit that 'reputation' or 'character' evidence can be introduced by the government to rebut an entrapment defense. In fact, it has been specifically held that reputation evidence of the sort introduced in this trial is permissible.

We have repeatedly held that once the defense of entrapment is raised the government may introduce hearsay testimony concerning the defendant's predisposition to commit the crime and the reasonableness of the conduct by the government agents. Washington v. United States, 5 Cir., 1960, 275 F.2d 687; Rocha v. United States, 5 Cir., 1968, 401 f.2d 529; Thompson v. United States, 5 Cir., 1968, 403 F.2d 209. Moreover, in the case of Thompson v. United States, supra, this court specifically approved the use of reputation evidence in the form of testimony which the witness gleaned from the reports of a local police department.

United States v. Robinson, 446 F.2d 562, 563-564 (5th Cir. 1971).

Not only was the...