U.S. v. Jennings

• Decision Date: 16 September 1991
• Docket Number: 90-3504,Nos. 90-3503,s. 90-3503
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl JENNINGS and John Stepp, Defendants-Appellants. Sixth Circuit
• Court: U.S. Court of Appeals — Sixth Circuit

Page 129

945 F.2d 129

UNITED STATES of America, Plaintiff-Appellee, v. Carl JENNINGS and John Stepp, Defendants-Appellants.

Nos. 90-3503, 90-3504.

United States Court of Appeals,

Sixth Circuit.

Argued Aug. 5, 1991.

Decided Sept. 16, 1991.

Gary L. Spartis (argued and briefed), Office of the U.S. Atty., Columbus, Ohio, for the U.S., plaintiff-appellee.

Barry W. Wilford (argued and briefed), Columbus, Ohio, for Carl Jennings, defendant-appellant.

Dennis C. Belli (argued and briefed), Columbus, Ohio, for John Stepp, defendant-appellant.

Before MARTIN and NELSON, Circuit Judges, and WELLFORD, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

In these two cases, consolidated for appeal, defendants Carl Jennings and John Stepp appeal their jury convictions on charges stemming from the illegal manufacture of methamphetamine, a schedule II controlled substance. On October 12, 1989, a federal grand jury indicted Jennings and Stepp for (1) conspiracy to manufacture over 100 grams of methamphetamine, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute over 100 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); (3) maintaining a place for the purpose of unlawfully manufacturing and using methamphetamine, in violation of 21 U.S.C. § 856(a)(1); and (4) creating a substantial risk of harm to human life while manufacturing a controlled substance, in violation of 21 U.S.C. § 858. Jennings was further charged with distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

After an eight day trial, the jury returned guilty verdicts against Jennings on all charges in the indictment and against Stepp on all charges in the indictment except for the charge of maintaining a place for the purpose of unlawfully manufacturing and using methamphetamine for which he was acquitted. On May 31, 1990, the district court sentenced Jennings to a little under 24 and a half years imprisonment followed by 5 years of supervised release and assessed a $300 fine. The court sentenced Stepp to a little over 19 and a half years of imprisonment followed by 5 years of supervised release and assessed a $150 fine. This appeal ensued.

Both defendants raise a plethora of issues on appeal. First, defendants argue that the district court abused its discretion by denying their motions for substitution of counsel without adequate inquiry into the underlying merits. On the day before the trial was scheduled to begin, both Jennings and Stepp submitted letters to the court in which they indicated their dissatisfaction with their respective counsel. Although the record indicates that the district court addressed each defendant as to the underlying reasons for their dissatisfaction with counsel, defendants argue that the district court interrupted them before they had the opportunity to explain his reasons for requesting substitute counsel.

A review of the record does indicate that the district court did not permit the defendants to explain fully their reasons for dissatisfaction with counsel in open court. Instead, the court instructed each defendant to submit his letter to the clerk and indicated it would consider the letters later. Unfortunately, the record does not reveal if the district court did, in fact, consider the letters or whether the district court ever formally made a ruling as to each defendant's request for new counsel. We cannot begin to determine whether the defendant's dissatisfaction with their appointed counsel was justified because neither defendant's letter was made part of the record.

As this court recently stated in United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990):

It is hornbook law that "[w]hen an indigent defendant makes a timely and good faith motion requesting that appointed counsel be discharged and new counsel appointed, the trial court clearly has a responsibility to determine the reasons for defendant's dissatisfaction with his current counsel." LaFave and Israel, Criminal Procedure, § 11.4 at 36 (1984).

(citations omitted). Based upon the record before us we are unable to determine whether the district court discharged its responsibility of ascertaining the reasons underlying the defendant's dissatisfaction with counsel. We therefore feel that remand is necessary for the purpose of allowing the district court to personally inquire from each defendant his reasons for dissatisfaction with counsel. If the district court finds that their reasons do not constitute "good cause," see, e.g., United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied, 487 U.S. 1211, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Wilson v. Mintzes, 761 F.2d 275 (6th Cir.1985); United States v. Brown, 744 F.2d 905, 908 n. 2 (2d Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984), the court would not be required to conduct a new trial. If, on the other hand, the court finds that the defendants did possess "good cause," each would be entitled to new appointed counsel for re-trial. It would be helpful if the two letters submitted by the defendants could be located and made part of the record.

Defendants next argue that the district court erred in not granting their respective motions for acquittal on the theory that the government's conduct in its investigation was so outrageous as to violate due process. In support of this argument, defendants contend that the government's conduct in this case is identical to that which led to reversal in United States v. Twigg, 588 F.2d 373 (3d Cir.1978). In Twigg, the Third Circuit found the government's conduct so overreaching as to violate the defendant's due process rights. The court concluded that:

[u]sing [the informant], and actively participating with him, the DEA agents deceptively implanted the criminal design in [the defendant's] mind. They set him up, encouraged him, provided the essential supplies and technical expertise, and when he and [the informant] encountered difficulties in consummating the crime, they assisted in finding solutions. This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own affairs.

Id. at 381. A review of the record in this case shows significant factual differences from those found in Twigg. One critical distinction is that evidence adduced at trial indicated that Jennings was involved in the distribution of methamphetamine and had indicated his intent to manufacture it in the Columbus area prior to any government involvement. The government's informant, Robert Green, testified that he had a conversation with Jennings in which Jennings produced approximately a pound of "ice" and told him that he was both selling it and giving it away in order to establish a client base. Jennings further indicated to Green that he had previously manufactured the drug while living in California and intended to do the same in Columbus. It wasn't until after this conversation that Green contacted government officials and agreed to act as an informant. Luanna Dennis also testified that she was first given methamphetamine from Jennings who indicated to her that he brought it with him from California. Dennis also testified that Jennings had indicated to her that he intended to start making the drug and that he would supply her with the drug in return for her helping him distribute it. Unlike the situation in Twigg, this testimony establishes that Jennings was both distributing "crack" in order to establish a client base and attempting to commandeer the necessary chemicals to manufacture the drug prior to any government involvement.

Furthermore, the evidence introduced at trial establishes that it was Jennings, and not the government informant nor any government agent, who possessed the necessary technical information as to how to manufacture the drug. In Twigg, it was the government informant and not the defendant who possessed the necessary technical expertise. Indeed, the evidence established that Jennings had manufactured the drug on a number of occasions and was familiar with both the necessary ingredients and the production process. Undoubtedly, the government aided Jennings in the attainment of his stated goal by providing one of the necessary ingredients which he was experiencing difficulty in obtaining. This fact alone, however, does rise to the level of outrageousness required for reversal. With respect to defendant Stepp, there is simply no evidence to suggest that he was enticed by any government agent to join forces with Jennings.

Along similar lines, defendant Stepp argues that he was entrapped as a matter of law. Both defendants raised the entrapment defense at trial which was rejected by the jury. Stepp argues that this finding should be disregarded because the government failed to introduce any evidence of predisposition on his part. We disagree. Before a jury verdict can be overturned, a reviewing court must conclude that no reasonable juror could have concluded beyond a reasonable doubt that the defendant was predisposed to violate the narcotics laws. United States v. McLernon, 746 F.2d 1098, 1111 (6th Cir.1984). The government elicited testimony from Green which indicated that Stepp was involved with Jennings' illegal drug activity prior to any governmental contact. This testimony alone is sufficient to support a jury finding that Stepp was predisposed to commit the crime charged and thus not entrapped.

Stepp also argues that the government failed to prove the existence of a conspiracy between he and Jennings. This argument deserves little attention as the record contains ample evidence to support a conspiracy conviction under 21 U.S.C. § 846. For example, the record establishes that Stepp helped locate and obtain the necessary chemicals. In...