U.S. v. Jackson
| Decision Date | 03 August 1976 |
| Docket Number | No. 76-1124,76-1124 |
| Citation | 539 F.2d 1087 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leon JACKSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William R. Coppel, Flint, Mich. (Court-appointed), for defendant-appellant.
Ralph B. Guy, Jr., U. S. Atty., Robert D. Sharp, Asst. U. S. Atty., Detroit, Mich., John Patrick Conley, Flint, Mich., for plaintiff-appellee.
Before WEICK and LIVELY, Circuit Judges; and LAMBROS, * District Judge.
This is an appeal from convictions on three charges of sale and distribution of heroin and cocaine in violation of 21 U.S.C. § 841(a)(1). The transactions were admitted by the defendant, but he contended that the activities of the undercover narcotics agents who were involved in the three transfers constituted entrapment. The case was heard by the court after the defendant waived his right to trial by jury. The defendant argues on appeal, as he did in district court, that entrapment was proven as a matter of law and that he was entitled to a judgment of acquittal.
Shortly after Jackson was released from prison an inmate who had been friendly with him gave Jackson's name to a drug enforcement agent and notified Jackson that the inmate's cousin would contact him about the purchase of narcotics. An undercover agent, Melvin Smith, posing as the cousin of Jackson's prison acquaintance talked with Jackson on the telephone after making several attempts to reach him. The agent asked whether Jackson could supply cocaine and Jackson replied, "It's possible." In this conversation Jackson stated that the narcotics requested by the caller were "in the pocket now." A tape recording of this telephone call was played at the trial.
Several weeks after the first telephone conversation Jackson met agent Smith at a restaurant in Flint, Michigan and delivered small samples of cocaine and heroin to him. Later that day the agent called Jackson and stated that he wanted to buy cocaine and heroin. At the appointed time the drugs were delivered by Leroy Adams rather than Jackson and later in the evening agent Smith called Jackson and said that he wanted to deal with him directly. The tape recording of this telephone call was also played. The recording disclosed that when the agent complained because Adams had insisted on receiving payment prior to delivery of narcotics, Jackson said that this was "the normal way." Several weeks after this recorded conversation agent Smith purchased heroin from Jackson while they were sitting in an automobile in Flint. The deliveries of cocaine and heroin at the restaurant were the bases of counts one and two and the delivery of the heroin in the automobile was the transaction referred to in count three of the indictment.
Melvin Smith testified that during one of his conversations with Jackson the defendant told him that he would take him (the agent) under his wing and show him how to make money in the drug trade. This conversation occurred on the same day that the first transfers of cocaine and heroin were made. The agent testified also that during a later conversation Jackson told him that a former fellow inmate was his "prime source" in California.
Jackson took the stand and testified that shortly after his release from prison he received a letter from a prison acquaintance named Kenneth Smith asking him to cooperate with "Kenneth's cousin," the undercover agent, Melvin Smith. He said that he then began getting calls from Melvin Smith, but did not respond because he was in no position to help Kenneth Smith who needed money. He testified that agent Smith repeatedly talked about the need of Kenneth Smith to obtain some money and that before the last transfer of drugs agent Smith told him that Kenneth Smith had died in prison and that he was trying to raise some money for his funeral. He testified that he sold drugs to agent Smith at a discount to help Kenneth Smith and that he did not profit from the transactions.
Jackson stated that he had not attempted to buy or sell narcotics between the time he was released from prison and the contact by agent Smith, and then testified as follows on direct examination:
Q I take it, then, when you said that you knew of people in the Flint area or elsewhere where narcotics could be obtained, is that right?
A At that time it was, I was having a little static in narcotics. There was a static that was coming out of Saginaw, Michigan, nothing was being able to be obtained, but some people had made certain products available and I remember saying "in the pocket now" or however you want to look at it. I have a pretty good name. I had ability to put my hands on something when I talked to Agent Smith. I must have had that at the time "in the pocket now." I was able to go get it when I wanted it. When certain transactions were made I went and made the initial contact and went back
On cross-examination Jackson did not deny a predisposition to buy and sell drugs, but stated that he just hadn't been out long enough.
The district court made findings of fact, including the following:
The government agent involved here did not implant the criminal design in the mind of the defendant. Defendant was not induced by the government's agent to distribute narcotics, but rather defendant was predisposed to commit the acts above described. This finding is based upon the documentary evidence introduced and testimonial evidence elicited at trial including that of the defendant, as well as all circumstantial evidence and the credibility of the witnesses.
In its conclusions of law the district court held that the defendant had not proved entrapment as a matter of law, that the issue was properly submitted to the court as a finder of fact and that "(t)he government has met its burden by showing beyond a reasonable doubt that the defendant had the predisposition to commit the unlawful acts above mentioned."
Since its decision in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the Supreme Court has consistently held that when the defense of entrapment is asserted, the focus of the inquiry is upon the predisposition of the defendant to commit the act with which he is charged. In Sorrel...
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