U.S. v. Hansen, 77-5082

• Decision Date: 10 March 1978
• Docket Number: No. 77-5082,77-5082
• Citation: U.S. v. Hansen, 569 F.2d 406 (5th Cir. 1978)
• Parties: 2 Fed. R. Evid. Serv. 1057 UNITED STATES of America, Plaintiff-Appellee, v. David B. HANSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 406

569 F.2d 406

2 Fed. R. Evid. Serv. 1057

UNITED STATES of America, Plaintiff-Appellee, v. David B. HANSEN, Defendant-Appellant.

No. 77-5082.

United States Court of Appeals Fifth Circuit.

March 10, 1978.

Jerome M. Rosenblum, Hollywood, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM and GEE, Circuit Judges, and VAN PELT, ^* District Judge.

GEE, Circuit Judge:

Defendant was convicted on all counts of a three-count indictment charging him with conspiracy to possess marijuana with intent to distribute, importation of marijuana, and possession of marijuana with intent to distribute. As to the importation count, the trial judge entered a judgment of acquittal notwithstanding the verdict. He sentenced defendant to four years imprisonment with a parole term of four years on the conspiracy count and five years imprisonment with a parole term of four years on the possession count. In addition to the sentences, which are to run concurrently, defendant was fined $5,000.

The evidence adduced at trial tended to show that defendant was part of a conspiracy to import more than 1,000 pounds of marijuana from Colombia. In February or March of 1976, Coughlin, one of the conspirators, went to Colombia with Blanco, a government informer who played an active role in the conspiracy, to make arrangements for landing a private plane and picking up the marijuana. Blanco and Coughlin then returned to South Florida to inform Taglione, apparently the leader of the group, of the arrangements they had made. Although Blanco originally agreed to fly the small plane to Colombia for the pickup, he reneged at the request of Drug Enforcement Administration officials. Taglione then approached defendant and asked him to make the flight. Defendant agreed.

Taglione and defendant took off from Boca Raton, Florida, at about 1:30 a. m. on April 11, 1976. The plane was next seen late in the evening of April 11 at an airport in Sebring, Florida. Agents surrounded the plane and found defendant and Taglione lying in the grass some fifty yards away. Next to the two prone figures were two bundles of marijuana. A search of the plane revealed roughly 1,000 pounds of marijuana packaged in a manner identical to that found near defendant and Taglione.

Defendant seeks reversal of the judgment below on several grounds. We find all of defendant's arguments unpersuasive and affirm the trial court's decision.

ENTRAPMENT

Defendant argues that he was entrapped as a matter of law. He bases his argument on United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), which held that a defendant who bought a controlled substance from a government informer and sold it to a government agent could not be convicted. This court has already held that Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), effectively reversed Bueno. See United States v. Benavidez, 558 F.2d 308 (5th Cir. 1977). On facts similar to those in Bueno, the Hampton Court held that defendant had not made out an entrapment defense. Although Justice Rehnquist's lead opinion, which said that extensive police involvement could never be a defense where the defendant was predisposed to commit the offense, did not command the support of a majority, the present case is certainly not the extreme case in which excessive police involvement might be a defense. Here the government informer did not originate the transaction. He was approached by Taglione. He even withdrew from the smuggling operation before the final flight to Colombia was made. Although he did help to finance and plan the operation, his involvement was certainly less than that of the government agents in Hampton.

Although defendant did not raise the issue in his original brief, he claimed at oral argument that he was not predisposed to commit the crime. In United States v. Harrell, 436 F.2d 606 (5th Cir. 1970), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972), we held that before the burden of proof falls on the government to prove predisposition beyond a reasonable doubt there must be evidence that the agent induced the accused to commit the offense. Here defendant never presented any evidence of any kind. The only relevant evidence was to the effect that Taglione was the one who asked Hansen to fly the plane to Colombia. Since defendant has not fairly raised the issue of lack of predisposition, we can hardly find entrapment as a matter of law.

COCONSPIRATORS' STATEMENTS

Defendant contends that the trial court erred in admitting in to evidence extrajudicial statements made by coconspirators out of the presence of the defendant. Under Rule 801(d)(2)(E), Federal Rules of Evidence, and Fifth Circuit case law, such statements, when made in furtherance of the conspiracy, are admissible if the government produces independent evidence that the conspiracy existed and that defendant was a member. See United States v. Apollo, 476 F.2d 156 (5th Cir. 1973). Defendant argues that there was insufficient independent evidence of the conspiracy and his role in it and that it was improper for the trial judge to admit these extrajudicial statements before the government had produced its independent evidence.

In order to pass muster, the independent evidence of the conspiracy must be sufficient to make out a prima facie case against the defendant, i. e., the judge must decide that a reasonable jury could convict on the basis of the independent evidence. United States v. Oliva, 497 F.2d 130 (5th Cir. 1974). The government has met its burden in this case.

The most damning evidence against the defendant concerns the circumstances under which he was arrested. In the predawn hours of April 12, 1976, police found him lying on the ground in his stocking feet with a bundle of marijuana lying within arm's reach. A few yards away lay Taglione, a coconspirator, also bootless, and by Taglione another bundle of marijuana. Defendant was lying about 50 yards from an airplane which contained approximately 1,000 pounds of marijuana wrapped in the same manner as that found next to him. Inside the plane were maps on which defendant's fingerprints were found. Other independent evidence included testimony by government informer Blanco that he had seen Hansen and Taglione at Taglione's girlfriend's house the day before and that he had later seen them get into the plane and take off. Viewing this evidence in the light most favorable to the government, as defendant concedes we must, we feel certain that it is sufficient to support a jury verdict against defendant on the conspiracy count.

In support of his contention that the trial court erred in allowing the government to present its "hearsay" evidence before presenting independent evidence of the conspiracy, defendant cites United States v. Oliva, supra. Defendant relies particularly on one passage in that opinion:

It is a long-standing rule in this Circuit that the government must introduce sufficient independent evidence of the existence of a conspiracy and of defendant's participation therein before the judge may allow declaration of a co-conspirator to go before the jury, United States v. Apollo, 5 Cir., 1973, 476 F.2d 156, 159; Montford v. United States, 5 Cir. 1952, 200 F.2d 759, 760 . . . .

497 F.2d at 132 (emphasis added). While this language might be read to support defendant's contention, it should be obvious from the citation to Apollo that the Oliva panel did not intend to say that Fifth Circuit law requires the trial judge to have the government put on its independent evidence first and then proceed with the "hearsay" evidence if the independent evidence is sufficient. Apollo specifically ruled that a trial judge has discretion over the order of proof and can allow the government to present its "hearsay" evidence first as long as the judge gives a contemporaneous warning to the jury that it should not consider this evidence unless the government presents independent evidence before its rests its case. United States v. Apollo, supra at 163. The trial judge here gave the contemporaneous warning required by Apollo and repeated the independent evidence requirement in his final charge to the jury. ¹

INFORMER'S ADDRESS

During cross-examination, defense counsel asked Blanco where he lived. Before Blanco could respond, the prosecutor objected and the judge called a bench conference. The prosecutor pointed out to the judge that Blanco had been held at gunpoint by Taglione and Coughlin and that he might be in danger if he gave his exact home address. The trial...