U.S. v. Huff, s. 91-1091

• Decision Date: 24 March 1992
• Docket Number: Nos. 91-1091,91-1093 and 91-1187,s. 91-1091
• Citation: 959 F.2d 731
• Parties: 35 Fed. R. Evid. Serv. 414 UNITED STATES of America, Appellee, v. Wayne Morris HUFF, Appellant. UNITED STATES of America, Appellee, v. Henry LOVE, Appellant. UNITED STATES of America, Appellee, v. Willie LOVE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 731

959 F.2d 731

35 Fed. R. Evid. Serv. 414

UNITED STATES of America, Appellee, v. Wayne Morris HUFF, Appellant.

UNITED STATES of America, Appellee, v. Henry LOVE, Appellant.

UNITED STATES of America, Appellee, v. Willie LOVE, Appellant.

Nos. 91-1091, 91-1093 and 91-1187.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 17, 1991.

Decided March 24, 1992.

Michael Seager, St. Paul, Minn., argued, for appellant Wayne Morris Huff.

Michael McNabb, Burnsville, Minn., argued, for appellant Henry Love.

Demetrius Clemons, Minneapolis, Minn., argued for appellant Willie Love.

Nathan P. Petterson, Minneapolis, Minn., argued (Jerome G. Arnold and Nathan P. Petterson, appear on the brief), for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

HEANEY, Senior Circuit Judge.

A grand jury indicted Wayne Morris Huff, Henry Love, and Willie Love on June 20, 1990. Count I of the indictment charged all three defendants with attempting to possess one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count II charged Willie Love with possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); Count III charged Willie Love, a previously convicted felon, with possession of a firearm, in violation of 18 U.S.C. § 922(g); Count IV charged all three defendants with conspiracy to possess one kilogram of cocaine with intent to distribute, in violation of 21 U.S.C. § 846. On September 14, 1990, a jury found Huff, Henry Love, and Willie Love guilty on all counts. All three appeal their convictions. We affirm.

BACKGROUND

In May 1990, Demon Echols became an informer for the Brooklyn Park, Minnesota Police Department. As part of his arrangement with the police, Echols would receive five percent of any money he obtained through "reverse sales" of narcotics. ¹

                1]  On May 23, 1990, Echols and his friend Wayne Huff met Huff's uncle, Willie Love, at Annie's Restaurant in Minneapolis.   Echols told Love that he knew someone who would sell Love one-half kilogram of cocaine for $9,000.   Love gave Echols his pager number and told Echols to call him when the deal could be put together
                

The next day Echols called Love and told him that his source, "Bob," would sell Love a kilogram of cocaine for $20,000. "Bob" was actually Detective Robert Malmquist of the Brooklyn Park Police, posing as a cocaine dealer from St. Cloud, Minnesota. On May 25, Huff and Echols met Malmquist in the parking lot of the Sheraton Hotel in Brooklyn Park and obtained a small sample of the cocaine for testing. When Huff and Echols returned to Annie's Restaurant, Willie Love told them that the cocaine sample was too small to cook in order to test it. During this meeting at the restaurant, Willie Love left the table twice to talk to his brother, Henry Love, who was waiting in another part of the restaurant.

Huff and Echols returned to the hotel parking lot and again met Malmquist, who was with Detective Mike Kaulfuss. After several telephone calls to Willie Love, the parties agreed that the transaction would take place in the parking lot of Henry Love's apartment building in Brooklyn Park. Huff, Echols, Malmquist, and Kaulfuss then drove to the apartment building. After they arrived, Willie and Henry Love appeared outside the entrance to the building. Malmquist handed the one kilogram brick of cocaine to Henry Love, who gave Malmquist a bag containing $20,000. At this time, Huff and Henry Love were arrested. Police officers chased Willie Love into the building and up the stairs into the second floor hallway, where they arrested him. They found a loaded gun lying on the floor at the top of the stairs in the apartment building; they later learned that the gun was registered to Annie Tidwell, Willie Love's wife. Police also arrested Lillie Mae Wesson, who was found hiding in a storage locker on the second floor.

Six police officers then made a "protective sweep" of Henry Love's apartment, and two of the officers remained there while Sgt. Wade Setter obtained a search warrant. The officers then executed the search warrant. Among the items they seized were $4,000 in cash hidden in a wall in the bedroom; a loaded shotgun; a police scanner and six pages of police frequencies; a hospital bill and a repair bill in the name of Henry Love; documents in the name of Willie Love; and a photograph of Willie Love.

DISCUSSION

1. Constitutionality of the Reverse Sting.

All of the appellants contend that the reverse sting tactics used by the police in this case are unconstitutional. The government's involvement in an undercover operation may violate principles of due process if it is "so outrageous and shocking that it exceed[s] the bounds of fundamental fairness." United States v. Johnson, 767 F.2d 1259, 1275 (8th Cir.1985); see also Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). A majority of Justices agreed in Hampton that even where the defendant is predisposed to commit an offense, "outrageous police conduct" could conceivably bar the defendant's conviction based on due process principles. Id. at 492-93, 96 S.Ct. at 1651-52 (Powell, J., concurring); Id. at 499, 96 S.Ct. at 1654 (Brennan, J., dissenting). When the defendant is predisposed to committing the crime, however, a reverse sting will not ordinarily rise to the level of a due process violation. See, e.g., Gunderson v. Schlueter, 904 F.2d 407, 410 (8th Cir.1990) (reverse sting not "outrageous"); Johnson, 767 F.2d at 1275 (same); United States v. Leroux, 738 F.2d 943, 948 (8th Cir.1984) (same); United States v. McCaghren, 666 F.2d 1227, 1230-31 (8th Cir.1981) (same). The relevant facts of this

                case are not substantially different from the other cases in which we have upheld reverse stings.   We find, therefore, that the police conduct in this case was not so outrageous as to deprive appellants of the due process of law
                

2. Selective Prosecution.

Henry Love and Willie Love next argue that by excluding statistics on the race of defendants arrested in reverse stings in Minneapolis, the district court erroneously precluded them from establishing a defense of selective prosecution. The only support that Henry Love and Willie Love offer for their claim of selective prosecution is a newspaper article from the Minneapolis Star Tribune stating that 87 percent of arrests in reverse sting cases in Minneapolis were of African Americans. After the article was published during appellants' trial, Henry Love attempted to elicit similar testimony on racial statistics from a prosecution witness, Paul Stevens of the Minnesota Bureau of Criminal Apprehension. The district court sustained an objection to Stevens's testimony on that issue on grounds of irrelevancy.

The defendant bears the burden of proof on a selective prosecution claim. United States v. Holmes, 794 F.2d 345, 347 (8th Cir.1986). In order to make out a prima facie case of selective prosecution, the defendants must show: (1) that they were singled out for prosecution while others similarly situated were not prosecuted for similar conduct; and (2) that the decision to prosecute was based on an impermissible motive such as race, religion, or an attempt by the defendant to secure other constitutional rights. Id.; see also United States v. Matter, 818 F.2d 653, 655 (8th Cir.1987) (two newspaper articles indicating that appellant's arrest was part of a federal crackdown against motorcycle clubs were not sufficient to establish prima facie case of selective prosecution); United States v. Hintzman, 806 F.2d 840, 846 (8th Cir.1986) (appellant who did not establish prima facie case of selective prosecution could not compel discovery of materials requested in connection with his selective prosecution claim).

Even if Stevens had been permitted to testify regarding racial statistics and his testimony had comported with the newspaper article, Love would not have established a prima facie case of selective prosecution. There is no evidence in the record that "similarly situated" non-African Americans were not being prosecuted for similar conduct. Nor did appellants offer any evidence that the decision to prosecute them was based on their race. Because appellants could not make out a prima facie case of selective prosecution, we cannot say that the district court erred in excluding as irrelevant testimony on racial statistics.

3. Henry Love's Motion for a Mistrial.

On redirect examination by the government, Detective Malmquist testified that Henry Love was in possession of a small quantity of marijuana at the time of his arrest. The district court subsequently instructed the jury to disregard this evidence. Henry Love contends, however, that the district court should have granted his motion for a mistrial because he was unfairly prejudiced by Detective Malmquist's testimony. The decision whether prejudicial testimony has so tainted a trial that a mistrial is required lies within the discretion of the district court. United States v. Muza, 788 F.2d 1309, 1312 (8th Cir.1986). Even if the district court's decision not to declare a mistrial in this case was erroneous, however, any error that might have occurred was harmless. See United States v. Leisure, 844 F.2d 1347, 1363 (8th Cir.1988), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 342 (1988). The jury heard evidence that Henry Love was present during the May 25 meeting between Echols, Huff, and Willie Love, and that Willie twice left the table to speak with Henry; that on one of those occasions, Willie told Henry to "go do what I told you to do and bring your ass right back;" that Henry purchased the cocaine from Malmquist in exchange for $20,000; that he twice told Malmquist that there was "twenty" in the bag that he exchanged for the

                cocaine;  and that he had $1,071 in cash and a pager on his person when he was arrested.   Viewing the record as a whole,

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