U.S. v. Hoyt

• Decision Date: 09 November 1989
• Docket Number: No. 87-1224,87-1224
• Citation: 879 F.2d 505
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian HOYT, aka Brian Doyle, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 505

879 F.2d 505

UNITED STATES of America, Plaintiff-Appellee, v. Brian HOYT, aka Brian Doyle, Defendant-Appellant.

No. 87-1224.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 13, 1988.

Decided March 17, 1989.

As Amended June 15 and Aug. 16, 1989.

As Amended Nov. 9, 1989. ^*

Marvin S. Cahn, Claire Leary, San Francisco, Cal., for defendant-appellant.

Joseph P. Russoniello, U.S. Atty., Samuel Wong, Asst. U.S. Atty., San Jose, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BOOCHEVER and BRUNETTI ^*, Circuit Judges, and STEPHENS ^** District Judge.

STEPHENS, Senior District Court Judge:

On January 22, 1987, Drug Enforcement Agency (DEA) agents arrested appellant Brian Hoyt while Hoyt was in the process of selling five kilograms of cocaine to an undercover agent, Mark Nelson. A one count indictment charged Hoyt with violating 21 U.S.C. Sec. 841(a)(1)--possession with intent to distribute five thousand grams or more of cocaine. On May 13, 1987, a jury found Hoyt guilty. On July 10, 1987, Judge Aguilar sentenced Hoyt to ten years imprisonment, a five year supervised release, and a special penalty assessment of fifty dollars.

At trial, Hoyt attempted to present an entrapment defense. He argued that he had no predisposition to sell cocaine to Nelson but only agreed to do so after being induced to sell the cocaine by his friend Katherine who, unbeknownst to Hoyt, was acting as a DEA informant and agent at the time. Hoyt's only evidence consisted of his own testimony. He put forth innocent explanations for incriminating evidence found at his home and in his safe deposit boxes. He described how Katherine had repeatedly asked him to sell cocaine Judge Aguilar sentenced Hoyt under 21 U.S.C. Sec. 841(b)(1)(A), which on its face requires a minimum sentence of ten years imprisonment for a violation of subsection (a) involving more than 5,000 grams of cocaine. Judge Aguilar denied both Hoyt's pre- and post-trial motions to strike the minimum mandatory ten year sentence, rejecting Hoyt's argument that the statute allowed a judge to impose a fine in lieu of a prison term. In addition to appealing Judge Aguilar's rulings on these issues, Hoyt argues on appeal that the sentencing provisions of section 841 are unconstitutional as violations of equal protection and due process, because they sentence convicted defendants based on the quantity rather than the purity of the cocaine, and as cruel and unusual punishment. Finally, Hoyt argues on appeal that certain provisions of 18 U.S.C. Sec. 3553 unconstitutionally delegate judicial sentencing power to the executive branch.

so that she could use the money to move out of an allegedly uncomfortable situation at her father's house. Neither Hoyt nor the government called Katherine to testify. Judge Aguilar refused Hoyt's request to instruct the jury on entrapment. Judge Aguilar read to the jury an instruction on the role of undercover agents.

Hoyt has timely appealed, and this court has jurisdiction under 28 U.S.C. Sec. 1291. All of Hoyt's claims are rejected and the judgment of the district court is affirmed.

I. FACTS

Hoyt and Katherine first met in 1983, but did not become friends until August of 1986. Hoyt testified that in October or November of 1986, Katherine told Hoyt that she lived with her father but that she was 27 or 28 years old and a virgin and that her father was making sexual advances toward her so she wanted to move out, but needed money in order to do so. Katherine suggested that Hoyt sell cocaine to a friend of hers as a means of raising the necessary money. Hoyt said that he thought of Katherine as a sister and wanted to help her, but rejected her idea of raising money by selling cocaine. According to Hoyt, he offered to lend her money, but she refused out of pride.

On December 3, 1986, Katherine met with DEA agents in their San Francisco office. From that date forward it can be assumed that she became an informer and agent of the DEA. Agents for the DEA instructed Katherine to arrange a meeting between Hoyt and agent Nelson and to tell Hoyt that Nelson was interested in buying cocaine. Hoyt, Katherine, and Nelson met in the Catalyst nightclub in Santa Cruz at 12:30 A.M. on December 19, 1986. Agent Nelson testified that Hoyt initiated a conversation about cocaine by saying that he had 2-3 ounces of cocaine in his possession and asked Nelson if he wanted to play a game of "show and tell," a term the agent took to be an invitation to sell drugs. Nelson declined, but told Hoyt that he would call him after returning from a trip for the Christmas holidays. Hoyt denies that he made these statements and testified that he was intoxicated. Agent Nelson disputed Hoyt's version.

Hoyt traveled to New York for Christmas and New Year's. During that time, Katherine stayed in Hoyt's home as a house sitter. Hoyt claims that Katherine telephoned to him several times inferentially from his home in this period to renew her pleas that he arrange a cocaine sale for her. The DEA instructed Katherine to set up a meeting between Nelson and Hoyt. After a series of phone calls between Hoyt and the agent, the two met on January 16, 1987 at Hoyt's house to negotiate the cocaine sale.

During the meeting, Hoyt produced a half kilogram plastic bag of cocaine for Nelson's inspection. When he opened the bag, he told Nelson to "smell the ether," a reference to a solvent used in cocaine. Hoyt calculated the price of a five kilogram cocaine sale at $140,000 and requested payments of the money in $50 and $100 bills. Hoyt said that his profit would be $10,000. He instructed Nelson to call him when the money arrived, but not to refer to "cocaine" or "money" on the phone. Instead, he suggested, Nelson should talk about "carpets," because Hoyt said he had a rug The drug sale and arrest occurred in Hoyt's home on January 22, 1987. Earlier that day, Miguel Barasota had brought the cocaine to Hoyt's house. When agent Nelson arrived, Hoyt used a flashlight in an unsuccessful attempt to detect the radio transmitter that Nelson had concealed in his clothing. The entire transaction was recorded, and the tape was played for the jury.

business. Hoyt boasted to Nelson that he could sell him pharmaceutical cocaine, a rare type of extremely high grade cocaine, and he also said that he could supply ten kilograms of cocaine on 24 hours notice.

Hoyt brought out five kilograms of cocaine and used a triple beam scale to measure the drug into equal portions in plastic bags. During the weighing, Hoyt carefully set the scale to compensate for the 10.5 gram weight of the plastic bags to ensure an exact one kilo measure of cocaine in each bag. He again told agent Nelson to "smell the ether," and when the agent made a mistake in conducting a "hotbox test," Hoyt instructed him on the proper procedures for testing the purity of the drug by using small particles of "duff" to test the substance's melting point.

During the weighing, Hoyt manifested his familiarity with cocaine and cocaine dealing. He bragged about two prior cocaine sales, one of a kilo to a local resident for $30,000 and another of a kilo to some Canadians for $32,000. He complained of finding rocks and pieces of clothing thrown in as filler in cocaine he had previously purchased, but he referred to the "R series" wrappings and markings as indicating that the package had come straight from Columbia and was a shipment of high quality drugs. Hoyt again claimed that he could deliver a large quantity of drugs (11 kilograms) on short notice if Nelson could ensure swift payment for the five kilograms. Hoyt told Nelson he was nervous about the fact that Nelson's "bagman" (the person with the money) was waiting outside in the neighborhood, because everyone knew everyone else there and Hoyt was afraid the bagman would be detected. Hoyt also told Nelson that he had been "fucking with cocaine" for the past 25 years.

Nelson left the house on the pretext of getting the money. On his signal, waiting agents arrested Hoyt, advised him of his constitutional rights and searched the house. They found incriminating evidence including a tupperware container with an eyedropper, a bottle of alcohol (which Hoyt admitted to using to clean cocaine, but also to clean gemstones for an alleged business he had), a lighter, a spoon and a bottle of acetone which is a solvent used for purifying cocaine. In one part of the house, agents found a police radio scanner and a notebook next to it that contained the frequencies for the local police, the FBI, and the DEA. They found a series of low altitude flying maps of the Caribbean, Columbia, Venezuela, and Florida and several "how to" books on the use of cocaine. Finally, the agents discovered three loaded firearms consisting of two handguns and a shotgun with the stock reduced to a pistol handle for easy concealment.

Agents executed warrants to search Hoyt's safe deposit boxes and found $26,000 in cash, ten grams of cocaine, and 13 more firearms, three of which were loaded.

After his arrest, Hoyt lied to the police on three separate occasions in an attempt to conceal the source of his cocaine supply. On the day of his arrest, Hoyt claimed that he had found the cocaine on the street. Later he changed his story to say that a man named "Ray," whose last name Hoyt could not remember, brought the cocaine to his house. Eventually before trial, Hoyt revealed the true identity of his supplier, but by that time Barasota and his wife had fled.

At trial, Hoyt produced documents to support his contention that he earned his income through various personal businesses and not through cocaine sales. Most of the documents related to the years 1984 and earlier, seven related to 1985, and two related to 1986, one from January 23rd and the other from March 11th, ten months before the cocaine sale.

II. ENTRAPMENT

Hoyt's first issue on appeal is...