U.S. v. Kummer, 93-1904

• Decision Date: 17 March 1994
• Docket Number: No. 93-1904,93-1904
• Citation: 15 F.3d 1455
• Parties: UNITED STATES of America, Appellee, v. Terry Lee KUMMER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1455

15 F.3d 1455

UNITED STATES of America, Appellee, v. Terry Lee KUMMER, Appellant.

No. 93-1904.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1993.

Decided Feb. 10, 1994.

Rehearing Denied March 17, 1994.

Counsel who presented argument on behalf of the appellant was Jonathan T. Garaas of Fargo, North Dakota.

Counsel who presented argument on behalf of the appellee was Keith M. Reisenauer, Assistant United States Attorney, Fargo, North Dakota.

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.

HEANEY, Senior Circuit Judge.

Terry Lee Kummer was initially convicted by a jury in North Dakota state court of possessing cocaine with intent to deliver. On appeal, the North Dakota Supreme Court overturned his conviction, finding that Kummer had been entrapped as a matter of state law. Kummer was subsequently charged in federal court. After his motions for dismissal and to suppress evidence were denied, Kummer pleaded guilty to violating 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, Kummer preserved various legal issues for appeal, including his arguments that he was entrapped as a matter of law and that his conviction violates the double jeopardy clause of the Fifth Amendment. After a careful review of the record and the relevant, binding precedents, we affirm.

BACKGROUND ¹

During the summer of 1990, law enforcement officers learned from two confidential informants that Kummer had been involved in drug trafficking. The informants had themselves been arrested for drug violations, and they agreed to cooperate with the officers in exchange for a favorable recommendation to the state's attorney's office on their On September 17, 1990, one of the informants, at the direction of Baumann and Weaver, made a taped telephone call from the police department to Kummer and asked him when he would be in the Fargo area to take advantage of a good deal on cocaine. Kummer expressed an interest, but only if the quality was better than it had been in the past. Four days later, the informant made another taped telephone call to Kummer and discussed the price and quantity of cocaine that Kummer might purchase. Kummer decided to purchase three ounces. Baumann and Weaver planned the amount of cocaine to offer to Kummer and set the price at $1,200 per ounce.

prosecutions. Special Agent Daniel Baumann of the State Bureau of Criminal Investigations and Officer Donn Weaver of the Fargo Police Department planned a "reverse sting," ² arranging for an informant to make a sale of drugs to Kummer.

On September 28, the informant made two more taped telephone calls to Kummer to plan a date, time, and place for the sale. The informant and Kummer arranged to meet on the evening of September 30, 1990, at Motel 75 in Fargo.

On September 30, Weaver obtained three ounces of cocaine from the evidence room at the police department. He divided the cocaine into three one-ounce portions and heat-sealed each portion in plastic bags. Later that day, Baumann and the two informants went to one of two rented rooms at Motel 75. Baumann placed a body transmitter on one of the informants and instructed them to tell the front desk personnel to have Kummer, upon his arrival, call before coming to the room. When Kummer called, Baumann gave the three packages of cocaine to the informant who had arranged the transaction, turned on the body transmitter that had been placed on the other informant, and went to the other motel room where officers had set up surveillance equipment. When the officers heard the informants counting the $3,600 Kummer had given them, they went into the hallway and waited for Kummer to leave the room. Upon leaving the room, Kummer was stopped, a pat-down search was conducted, and the three packages of cocaine were retrieved. The money Kummer had given the informants was also retrieved.

Kummer was arrested and taken to the Fargo Police Department where he was charged with possession of a controlled substance with intent to deliver in violation of North Dakota Century Code Secs. 19-03.1-07 and 19-03.1-23. Kummer waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his right to be represented by counsel.

Officers Baumann and Weaver questioned Kummer for quite some time. When Kummer refused to answer their questions, Weaver told him that he was facing ten years in prison and a $10,000 fine. The officers told him that they could "help [him]," "make things easier for [him]," and "put in a good word for [him]." Affidavit of Terry Lee Kummer, at 1 (Nov. 9, 1992). Upon hearing these promises, Kummer told the officers of a "Joe South Dakota" (Joe Stack), ³ one of several individuals who was to receive the cocaine Kummer purchased in the reverse sting. He also told them of the circumstances surrounding the drug sale and the names of additional people who were to receive the cocaine. Baumann and Weaver then asked Kummer to deliver cocaine to Joe Stack at a prearranged place. When Kummer refused to do so, he was brought to jail. The next morning, Baumann again asked Kummer for his cooperation, and again promised to put in a good word for him.

Kummer refused to participate in the sale to Stack.

At trial, Kummer relied on a defense of entrapment on which the jury was properly instructed. The jury, however, rejected the entrapment defense and returned a verdict of guilty. Kummer appealed his conviction. The Supreme Court of North Dakota reversed Kummer's conviction and remanded the case for entry of a judgment of acquittal, finding that Kummer had been entrapped as a matter of state law because of the law enforcement officers' unlawful conduct. See State v. Kummer, 481 N.W.2d 437 (N.D.1992).

Thereafter, the United States Attorney for the District of North Dakota sought and received approval to prosecute Kummer under the Justice Department's "Petite policy" ⁴ relating to successive state-federal prosecutions. Kummer was charged in a four-count indictment with possession of cocaine with intent to deliver, distribution, conspiracy, and aiding and abetting.

DISCUSSION

I. Entrapment

Kummer first argues that he was entrapped as a matter of law. He contends that our court should not countenance illicit conduct by law enforcement officials "by stamping an imprimatur of approval" upon conduct that was condemned by the North Dakota Supreme Court. Appellant's Br. at 9. Kummer would have us reject the federal standard applied in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), in which the Supreme Court upheld the applicability of the "subjective" standard of entrapment, which focuses on an individual's predisposition to commit an offense, and instead adopt North Dakota's per se rule of entrapment, which focuses on the conduct of law enforcement officials (the "objective" approach). We are unable to do so because of prior decisions of the U.S. Supreme Court and this court.

In a case of first impression, the North Dakota Supreme Court held that Kummer was entrapped as a matter of state law because the police had to "create and commit a crime," e.g., use unlawful means to obtain the drugs for sale to Kummer in violation of a state statute which provides that conduct by a public officer is not justified unless "required or authorized by law." State v. Kummer, 481 N.W.2d 437, 443 (N.D.1992); see N.D.C.C. Sec. 12.1-05-02. Because there is "no statutory authority that authorizes a controlled substance confiscated in another drug prosecution to be withdrawn from evidentiary retention, offered for sale, and sold to others," the police, the court reasoned, used unlawful means to induce Kummer to commit the offense with which he was charged. ⁵ Kummer, 481 N.W.2d at 443. In finding entrapment as a matter of law, the court relied on North Dakota's entrapment statute, ⁶ which employs the objective test, "to determine whether police conduct is sufficiently unsavory to justify an entrapment defense." Id. (quoting State v. Pfister, 264 N.W.2d 694, 697 (N.D.1978)).

However appealing North Dakota's objective standard may be for public or other policy reasons, it is neither the standard adopted by the Supreme Court nor the standard guiding decisions involving entrapment law in this circuit. See United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); United States v the evidence must clearly have indicated that a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent.

King, 803 F.2d 387, 390 (8th Cir.1986); United States v. Lard, 734 F.2d 1290, 1293 (8th Cir.1984). In order to demonstrate entrapment as a matter of law under the federal standard,

United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978). The critical question, therefore, is whether the law enforcement officer caused or induced the defendant to commit a crime he or she was not otherwise predisposed, e.g., willing and ready, to commit. United States v. Richard, 872 F.2d 253, 254 (8th Cir.1989). Determining a defendant's predisposition requires examination of the defendant's personal background to see "where he sits on the continuum between the naive first offender and the streetwise habitue." ⁷ Lard, 734 F.2d at 1293 (quoting United States v. Townsend, 555 F.2d 152, 155 n. 3 (7th Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 184 (1977)). It also requires considering the extent to which the government agent instigated or induced the commission of the criminal act. Id.

The district court held that the reverse sting did not, of itself, constitute entrapment as a matter of law, and there is nothing in the record that would suggest otherwise. See United States v. Kummer, No....