U.S. v. Nations, 84-1689

• Decision Date: 25 June 1985
• Docket Number: No. 84-1689,84-1689
• Citation: 764 F.2d 1073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee NATIONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1073

764 F.2d 1073

UNITED STATES of America, Plaintiff-Appellee, v. Lee NATIONS, Defendant-Appellant.

No. 84-1689.

United States Court of Appeals Fifth Circuit.

June 25, 1985.

William D. Kane, Fort Worth, Tex. (Court-appointed), for defendant-appellant.

James A. Rolfe, U.S. Atty., James T. Jacks, Dallas, Tex., for plaintiff-appellee.

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

Before TATE and HIGGINBOTHAM, Circuit Judges, and CASSIBRY, ^* District Judge.

TATE, Circuit Judge:

The defendant Lee Nations appeals from the judgment entered upon a jury's verdict of guilty as to each of three counts charging interstate transportation of a stolen motor vehicle, 18 U.S.C. Sec. 2312, and aiding and abetting such transportation, 18 U.S.C. Sec. 2. Nations contends: (1) that he is entitled to reversal and dismissal of the prosecution because the evidence at trial showed "outrageous government conduct" in the investigation of Nations and because an informant was paid on a contingency basis (for "positive results only"); (2) that he is entitled to reversal and entry of judgment of acquittal because the evidence at trial established entrapment as a matter of law; and (3) that he is entitled to reversal and a new trial because the district court erred in denying his request to instruct the jury on the defense of entrapment. We conclude that, although the evidence did not establish either outrageous government conduct or entrapment as a matter of law, the district court erroneously denied Nations' request for an entrapment instruction. Accordingly, we reverse.

I.

Jerry Street, the defendant Nations' former brother-in-law, was an undercover informant for the Federal Bureau of Investigation ("FBI") in the investigation of Nations. The FBI paid Street on a contingency basis, for "positive results only," according to a testifying FBI agent. Street received about $1,500 for his contribution to the Nations investigation. Street testified at trial that he had a substantial criminal history, had been imprisoned, and previously had served as an informant for the FBI.

Nations testified that Street approached him two or three times in October 1982 with a legitimate business proposition. According to Nations, Street requested Nations' assistance in locating damaged automobiles to be purchased, repaired, and re-sold. Street, Nations testified, said that he would be able to get a job with a particular garage if he could arrange this and that the job was important because he had cancer, ¹ a new wife, debts, and no job. Nations further testified that Street knew Nations had a sister who recently had died of cancer and that Nations therefore was particularly moved by the spectre of Street's cancer. (Nations and his wife also testified that, after meeting with Street, Nations contacted a physician in the hope of getting suitable treatment for Street.)

Street admitted that he met with Nations in October but denied that there were as many as three meetings. He also denied that he mentioned cancer or the possibility of a job in a garage (although he admitted mentioning cancer later in the investigation). According to Street, he asked Nations about obtaining stolen cars: "I asked him if he knew anybody that was dealing in hot cars, and he said, why, certainly."

Whatever the nature of the October discussion between Street and Nations, it was undisputed at trial that Street approached the FBI in mid-November. He told FBI agents that Nations was involved in selling stolen automobiles. Street testified at trial that he had two principal reasons for contacting the FBI about his former brother-in-law: (1) a vendetta arising from Street's belief that Nations had stolen some of his jewelry when he was in prison; and (2) resentment over Nations' sale of controlled substances, for which he (Street) had been imprisoned, while Nations was not caught. After the contact by Street, the FBI undertook an investigation.

Street arranged a meeting with Nations. An FBI agent (undercover) and Street met with Nations in Nations' home on the day after Thanksgiving. In an unrecorded conversation, Street introduced the agent as a person wanting to purchase late model luxury automobiles. The agent indicated that he wanted these cars at an inexpensive price.

As a result of the conversation in Nations' home, Nations drove the FBI agent and Street to meet with James Kirk, a person Nations represented to have the ability to acquire late model luxury automobiles. All of these parties, as well as a Kirk employee, met in Nations' automobile, and their conversation was recorded. Nations participated "very little" in the discussion, according to the testimony of the FBI agent involved. Kirk indicated that he would have a 1981 model Cadillac to sell in the near future. The parties briefly discussed stolen rifles, a discussion in which Nations participated. The parties also mentioned possible remuneration to Nations for his efforts in putting the FBI agent in touch with Kirk, but Nations did not raise this issue or press it. ² During the conversation, the parties did not expressly mention stolen automobiles, but the FBI agent involved in the discussions testified that such was the clear meaning of the discussion of late model luxury automobiles at an inexpensive price.

The following day, Nations telephoned the FBI agent. The agent returned the call and recorded the conversation. Nations told the agent to telephone Kirk concerning an automobile. When the agent did so, Kirk and the agent made arrangements (in a recorded conversation) for delivery of an automobile. Although the automobile was not delivered as planned, ultimately a stolen automobile was delivered after several more recorded conversations between the FBI agent and Nations and Kirk.

A second FBI agent thereafter became involved in the investigation. There were more recorded telephone conversations, and Kirk delivered two additional automobiles. In all of these conversations, Nations conveyed messages back and forth between Kirk and the FBI agent and participated in making arrangements for the delivery of Cadillac automobiles. Each of the three delivered Cadillac automobiles gave rise to one count of the three-count indictment charging interstate transportation of stolen automobiles.

In all, the investigation lasted about four months. During that time, the FBI agents paid Nations $100. Nations himself never requested any money. ³ After the sale of the first stolen Cadillac automobile, the agents raised the money question in an unrecorded restaurant conversation. One of the agents present testified about no details of this conversation. The other agent present testified that, upon being asked if he had received any money from Kirk, Nations said he had not but hoped to "work something out" with the undercover agent. According to the agent, Nations accepted $100 and agreed to a fifteen percent commission on future automobile sales and a ten percent commission on proposed heavy equipment sales.

Nations testified that he was a stable fifty-year-old businessman (buying, repairing, and reselling homes and automobiles) and that he never had been involved in criminal activity (contradicting Street's testimony). Several character witnesses corroborated this testimony.

Nations further testified that he became involved with Street because of pity at Street's financial condition and illness (cancer). Nations denied, however, that he ever intended to participate in the sale of stolen automobiles. According to Nations, he initially thought all arrangements were legal (Street's new job) but became suspicious during the first recorded meeting with Kirk and the FBI agent. After consulting with a prominent friend (who corroborated Nations' testimony), Nations, according to his testimony, sought to investigate Kirk and the undercover FBI agent to develop evidence that he could provide to the appropriate authorities.

By its verdict, the jury rejected Nations' testimony concerning his lack of criminal intent. ⁴ Before closing arguments, however, Nations requested the trial court to instruct the jury on the defense of entrapment. Nations submitted a pattern instruction to this effect and argued that there was sufficient evidence to raise the issue. Apparently because Nations denied criminal intent to join the effort to transport stolen automobiles, the district court denied an entrapment instruction. Thus, Nations' counsel did not argue the entrapment defense, and the jury was not instructed to consider it.

II.

Nations urges that he is entitled to reversal and dismissal of prosecution because (1) the government's investigatory conduct, particularly that attributable to Street, was outrageous and (2) Street was paid "for positive results only" in the Nations investigation.

So-called "outrageous government conduct" during a criminal investigation may bar prosecution and require dismissal of an indictment. United States v. Yater, 756 F.2d 1058, 1064-66 (5th Cir.1985). According to Nations, that conduct in this case consisted principally of Street's exploitation of cancer to persuade Nations to assist in the sale of stolen automobiles. Neither this nor any other circumstance of the investigation in this case, however, was improper--and certainly not the "rarest and most outrageous circumstances" necessary to require dismissal of an indictment. United States v. Yater, 756 F.2d 1058, 1065-66 (5th Cir.1985). Moreover, the outrageous government conduct defense generally is available only upon proof of government overinvolvement in the charged crime and proof of the defendant's mere passive connection to the government orchestrated and implemented criminal activity. Id. "[A] defendant cannot avail himself of the defense where he has been an active participant in the criminal activity which gave rise to his arrest." Id. at 1066 (emphasis in original). In the present case, the government...