U.S. v. King

• Decision Date: 04 November 1986
• Docket Number: No. 85-1769,85-1769
• Citation: 803 F.2d 387
• Parties: UNITED STATES of America, Appellee, v. Earl L. KING, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 387

803 F.2d 387

UNITED STATES of America, Appellee, v. Earl L. KING, Jr., Appellant.

No. 85-1769.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1986.

Decided Oct. 10, 1986.

Rehearing Denied Nov. 4, 1986.

Holly McCoy Zimmerman, Kansas City, Mo., for appellant.

Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and HENLEY, Senior Circuit Judge.

PER CURIAM.

Earl L. King was convicted by a Kansas City jury of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1982) and five counts of knowing and intentional distribution of cocaine under 21 U.S.C. Sec. 841(a)(1) (1982). The trial court ¹ sentenced King to two concurrent twelve-year prison terms, five years probation, a $10,000 fine and a $250 assessment. King appeals from the judgment of conviction alleging that the trial court erred in failing to find entrapment as a matter of law, in refusing to suppress the testimony of a paid governmental informant, in failing to sever his trial from that of his codefendants, and by refusing to hold that a cumulation of errors denied him of a fair trial. ² We affirm.

In 1983, King met Matt Bower at the Chouteau Inn, a bar in Kansas City. King was working there part time as a bouncer and Bower, the younger brother of King's good friend, had just begun working there. Over the next several months, Bower observed King engage in a number of drug deals. Bower reported this to a local police officer who referred Bower to Special Agent David C. Cigich of the Drug Enforcement Agency (DEA). Bower informed Cigich that he believed he could purchase drugs from King.

On September 20, 1984, Bower arranged to buy one ounce of cocaine from King on the following day for $2,000. Bower informed Cigich of the transaction and Cigich supplied Bower with a concealed recorder and $2,000 in government funds. Cigich also arranged for police surveillance of the Chouteau Inn, where the deal was to occur. Bower then purchased 16.38 grams of cocaine from King for $2,000 and the two then talked about future drug deals.

On October 18, 1984, Bower made similar arrangements with Cigich and purchased 18.59 grams of cocaine from King for $2,100. On November 1, Bower purchased 74.99 grams of cocaine from King for $7,700. Accompanying King during the transaction was one of King's codefendants, Kenneth Matlock. The entire transaction was observed by the DEA and was taped with a recorder hidden on Bower. On November 6, Bower delivered an ounce of cocaine to a buyer at the Chouteau on behalf of King and returned the buyer's partial payment of $800 to King. King was again accompanied by Matlock. Bower informed Cigich of this transaction on the following day.

On November 8, Bower ran a similar errand for King, this time delivering two ounces of cocaine to a buyer for $3,800. Bower informed Cigich of this early the next morning at which time Cigich obtained a search warrant of the hotel room where Bower had met King. Cigich and other DEA agents arrived at the hotel room just as King and his brother, Jimmy King, were leaving. The officers examined packages in Earl King's possession and found 15.42 grams of cocaine, a sifter, scales, and a semiautomatic weapon, and $2,063 in cash, $400 of which was marked as money supplied by Cigich to Bower for a previous deal. The Kings and Matlock were later arrested and indicted on several drug charges. All three defendants were tried together.

Entrapment

King's first contention is that the trial court erred in denying his motion for judgment of acquittal because the evidence proved entrapment as a matter of law. For King to prevail in his contention that the trial court should have granted his motion, he must show entrapment as a matter of law. United States v. Resnick, 745 F.2d 1179, 1186 (8th Cir.1984). The record, therefore, must clearly indicate that a government agent originated the criminal design, that the agent implanted that criminal design in the mind of an innocent person, and that the innocent person then committed the crime at the government agent's urging. United States v. Randolph, 738 F.2d 244, 245 (8th Cir.1984) (per curiam).

The evil with which the defense of entrapment is concerned is "the manufacturing of a crime by law enforcement officials and their agents." Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963) (emphasis in original). This does not mean, however, that government agents are precluded from using deceit, stealth, and strategy in their attempts to apprehend criminals. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958); United States v. Lard, 734 F.2d 1290, 1293 (8th Cir.1984). A line must be drawn, however, between the use of that deceit against an unwary criminal and an unwary innocent. Sherman, 356 U.S. at 372, 78 S.Ct. at 820. Thus, the principal focus of inquiry is the defendant's predisposition to commit the crime alleged. Resnick, 745 F.2d at 1186. Determining predisposition requires an examination of the defendant's personal background, character, and state of mind, as well as the extent to which the government agent instigated or induced the criminal act. United States v. Dion, 762 F.2d 674, 686-88 (8th Cir.1985) (citing ten factors utilized by various circuits in determining predisposition), reversed on other grounds, --- U.S. ----, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986); Lard, 734 F.2d at 1293.

King alleges that Bower coerced him into selling the drugs by playing on King's sympathies and King's allegiance to Bower's brother. Bower had been involved in an industrial accident causing serious injury to his foot, and King claimed at trial that Bower begged him for some cocaine to help relieve the pain. King also testified that Bower often mentioned Bower's brother and tried to use that friendship as an inducement for King to sell Bower drugs. It is plain, however, that the jury rejected these claims and relied on the government's evidence that King was actually an experienced and sophisticated drug dealer to whom Bower was just another customer. In reviewing the trial court's ruling on the motion for acquittal, this court must view the evidence in the light most favorable to the government. Resnick, 745 F.2d at 1186. So viewing the evidence, we hold that there was sufficient evidence on which the jury could find that no entrapment occurred.

Informant's Testimony

King's second allegation is that the trial court erred in failing to suppress Bower's testimony sua sponte since the evidence showed that Bower was paid for his work as an informant on a contingent fee basis. The evidence showed that Bower was paid a total of $5,000 for his work on this case, but that $3,000 of that amount was paid only after the defendants were arrested. King alleges that this proves Bower was paid not for the work he did, but for the results obtained in the investigation. Thus, according to King, Bower's testimony should have been suppressed under the authority of Williamson v. United States, 311 F.2d 441 (5th Cir.1962). No objection to Bower's testimony was made on this basis at trial.

In Williamson, the Fifth Circuit held that a paid informant's testimony was inadmissible when payment was contingent upon whether the informant's efforts produced admissible evidence and when no justification or explanation as to the reason for the arrangement was offered. Id. at 444. If, however,...