U.S. v. Lane

• Citation: 693 F.2d 385
• Decision Date: 26 November 1982
• Docket Number: No. 81-1547,81-1547
• Parties: 12 Fed. R. Evid. Serv. 121 UNITED STATES of America, Plaintiff-Appellee, v. James Earl LANE and Diane Willis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 385

693 F.2d 385

12 Fed. R. Evid. Serv. 121

UNITED STATES of America, Plaintiff-Appellee, v. James Earl LANE and Diane Willis, Defendants-Appellants.

No. 81-1547.

United States Court of Appeals, Fifth Circuit.

Nov. 26, 1982.

Frank D. McCown, Fort Worth, Tex., for Lane.

Robert T. Stites and James W. Collier, Fort Worth, Tex. (Court-Appointed), for Willis.

John W. Sweeney, Jr., Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before THORNBERRY, JOHNSON and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

Defendants, Diane Willis and James Earl Lane, were each convicted on two counts of distribution of heroin. Defendants' convictions resulted from an undercover Drug Enforcement Administration (DEA) operation in which a paid DEA informant arranged to purchase heroin from the defendants in a bar in Fort Worth, Texas. Defendants raise several grounds of error on appeal including an allegation that their convictions should be reversed since the Government informant was paid pursuant to a contingent fee agreement. This Court, concluding that none of the defendants' grounds of error merit reversal, affirms the district court's judgment.

I. The Undercover Operation

In March of 1981, Levy Bradley contacted a narcotics officer with the Fort Worth Police Department and indicated that he was interested in becoming an informant. The Fort Worth police officer met with Bradley, and, thereafter, set up a meeting between Bradley and DEA Special Agent John Lunt. Bradley agreed to become a paid informant for DEA and was to be paid on a case-by-case basis, the amount to be determined after each narcotics transaction. Bradley participated with DEA agents in approximately twenty-two narcotics transactions, including the two transactions that gave rise to the instant proceeding.

On March 25, 1981, Bradley went to The 2500 Club in Fort Worth and told defendant Lane, who Bradley knew as "Redman," that he wanted to buy thirty heroin capsules for $600. Lane informed Bradley that he could supply him with the heroin, and, thereafter, Bradley went to the DEA office in Fort Worth and informed the DEA of the potential narcotics transaction. DEA Agent Howard and Bradley returned to The 2500 Club and told defendant Lane that they had come to pick up the heroin capsules. Defendant Lane did not have the heroin with him but instructed defendant Willis to go and get the capsules. While Willis was obtaining the heroin, Bradley paid defendant Lane with money given him by agent Howard. This payment was observed by agent Howard. When defendant Willis returned with the heroin, defendant Lane told Bradley that agent Howard would have to wait outside because Lane did not know agent Howard. Upon agent Howard's exit, defendant Willis gave defendant Lane the thirty capsules and Lane counted them out to Bradley, who subsequently delivered the thirty capsules to agent Howard. Count 1 was based on the foregoing facts.

On the morning of April 29, 1981, Bradley again went to The 2500 Club and arranged with defendant Lane to purchase thirty capsules of heroin. Later that afternoon, agent Howard and Bradley returned to the club and announced that they were back to get the heroin. Once again, agent Howard observed Bradley pay defendant Lane $600 and Lane instructed defendant Willis to go and obtain the capsules. Agent Lunt, who was on surveillance in a car outside the bar, observed Willis walk to an area between some houses and return a short time later and re-enter the club. After defendant Willis returned, agent Howard was asked to leave and Willis gave the thirty capsules to Lane, who counted them out to Bradley. The thirty capsules were given to agent Howard upon his exit from the club. The April 29th narcotics transaction provided the basis for Count 2.

II. The Contingent Fee Arrangement

Appellants contend that their convictions should be reversed since the Government informant was paid on a contingent fee basis. Initially, appellants argue that the contingent fee agreement violates the standards set forth in this Court's holding in Williamson v. United States, 311 F.2d 441 (5th Cir.1962). Additionally, appellants maintain that DEA's utilization of Bradley as a paid informant violates the doctrine of fundamental fairness. This Court holds that the agreement did not violate Williamson and its progeny and that the DEA's activity did not contravene the doctrine of fundamental fairness.

In Williamson v. United States, this Court reversed a conviction in which the informer assisting the Government was paid a contingent fee to implicate certain targeted defendants. In the instant proceeding, it is uncontested that the paid informant was paid pursuant to a contingent fee. However, there is no indication in the record that Bradley was to implicate government-targeted defendants. To the contrary, the record demonstrates that Bradley randomly implicated narcotics traffickers and was not directed toward certain individuals by the DEA. Williamson's progeny indicates that Williamson requires reversal "only when the specific defendant was picked out for the informer's efforts by a Government agent." United States v. Onori, 535 F.2d 938, 942-43 (5th Cir.1976); United States v. Joseph, 533 F.2d 282, 285-86 (5th Cir.1976); United States v. Oquendo, 505 F.2d 1307, 1310 (5th Cir.1975); and United States v. Durham, 413 F.2d 1003 (5th Cir.), cert. denied, 396 U.S. 839, 90 S.Ct. 100, 24 L.Ed.2d 89 (1969). Consequently, this Court holds that Williamson was not implicated by the contingent fee used in this case.

Appellants maintain that the Government's conduct in this case constitutes a violation of the doctrine of fundamental fairness. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Supreme Court recognized that, in a given case, the Government's conduct may be so outrageous as to violate due process. However, concurring Justices in the Hampton plurality emphasized that, "[p]olice overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar convictions." Id. at 495 n. 7, 96 S.Ct. at 1653 n. 7 (Powell, J., concurring). Moreover, recent decisions by this Court indicate that "government infiltration of criminal activity is a recognized and permissible means of investigation." United States v. Tobias, 662 F.2d 381, 386 (5th Cir.1981).

A review of the cases in which convictions were reversed on the basis of the doctrine of fundamental fairness demonstrates that the DEA's conduct in this case fails to implicate due process protections. For example, in United States v. Gray, 626 F.2d 494 (5th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 616, 66 L.Ed.2d 500 (1980), a contention was made that the Government agents violated the doctrine of fundamental fairness by suggesting a drug smuggling scheme to the defendants, and, upon the defendants' acceptance, furnishing the defendants with repair services, an airstrip, and a crew. This Court held that the agents' activity in that case fell short of violating due process since "[t]he providing of essential services is not misconduct...." Id. at 498. On the other hand, in United States v. Twigg, 588 F.2d 373 (3d Cir.1978), the Third Circuit reversed a defendant's conviction based on the doctrine of fundamental fairness noting that the Government agent suggested the establishment of the drug laboratory, provided the location, equipment, supplies, and knowhow, and then ran the entire operation with only meager assistance from the defendants. The Government's conduct in the instant case does not rise to the level of egregiousness present in Twigg. In fact, the DEA operation appears to be a rather basic undercover operation. The DEA did nothing more than supply a buyer to defendants already predisposed to engage in illegal conduct. The DEA did not supply the drugs, the location, or the individuals necessary to run the defendants' narcotics operation. Therefore, this Court concludes that the DEA agent's conduct did not constitute a breach of the doctrine of fundamental fairness.

III. The Trial Judge's Conduct

Appellant Lane has selected several statements of the trial judge from the trial transcript and alleges that these statements, either separately or cumulatively, constitute reversible error. This Court disagrees.

In reviewing the statements made by the district court, this Court must remain cognizant of the role performed by a federal district court judge. In Quercia v. United States, the following description of the federal trial judge's role was made:

In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purposes of assuring its proper conduct and of determining questions of law. [citations omitted] .... It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the part of it which he thinks important, and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. [citations omitted] ....

Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933).

Additionally, we note at the outset that the district court judge instructed the jury that it should not give any weight to his comments in reaching its verdict. ¹ See United States v. Bartlett, 633 F.2d 1184, 1188 (5th Cir.1981). At the conclusion of the Government's case-in-chief the trial judge stated:

All right. The government rests, which means that the government feels that it has proven its case now beyond a reasonable doubt and introduces no further evidence. As I stated earlier, there is no burden on the defendant to do anything now at this time, on either defendant, unless they desire to...