U.S. v. Nixon
| Decision Date | 02 December 1985 |
| Docket Number | No. 84-3721,84-3721 |
| Citation | 777 F.2d 958 |
| Parties | 19 Fed. R. Evid. Serv. 932 UNITED STATES of America, Plaintiff-Appellee, v. Arthur Thomas NIXON, David L. Snoddy and Donald E. Gilbreth, Defendant- Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert F. Barnard, Asst. Fed. Public Defender, New Orleans, La., for nixon.
Michael S. Fawer, Salvador G. Longoria, New Orleans, La., for Snoddy & Gilbreth.
John P. Volz, U.S. Atty., Peter G. Strasser, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, GARZA, and HILL, Circuit Judges:
Defendants were convicted of various counts involving the attempted purchase, possession, and distribution of over 40,000 pounds of marijuana. They appeal their convictions on several grounds, namely:
(1) that the government's conduct leading to the attempted purchase of marijuana was sufficiently outrageous to warrant dismissal of the indictment as a matter of law;
(2) that the district court erred in admitting certain hearsay testimony relating to defendants' predisposition to criminal conduct;
(3) that the district court's defective jury instruction on the issue of entrapment requires reversal as a matter of law;
(4) that the district court erred in denying defendants pretrial access to the government's confidential informants and certain other records;
(5) that several instances of prosecutorial misconduct invalidated the legality of the proceedings and denied defendants a fair trial, and
(6) that the district court erred in permitting the jury to view an allegedly inaudible audiovisual tape.
For the reasons which follow, we affirm the conviction.
This case began as a reverse sting operation whereby Drug Enforcement Agency ("DEA") agents posed as sellers, rather than as buyers, of a controlled substance. Although the defendant-appellants' version of the facts differs markedly from that of the government, we will set out the facts as objectively as possible.
David Paige (alias David Cohen), a DEA agent posing as a drug dealer, used three confidential informants; James McMillan, Donald Smith, and James Marshall, to garner information about illicit drug dealing activity by the three defendants; Donald Gilbreth, David Snoddy, and Arthur Tommy Nixon. 1 Although the confidential informants ("CIs") apparently thought of themselves as "special federal agents", it seems that these three men were more at home with other criminals than with drug enforcement personnel. Their need for money is what motivated them to help "make cases" for the government. In other respects, the three CIs appeared to be as lawless as any con man or drug dealer.
Defendants Gilbreth and Snoddy were introduced to Donald Smith and James McMillan, two of the CIs, in the late summer of 1983 in Meridian, Mississippi. Without the government's knowledge, Smith and McMillan originally intended to con Gilbreth and Snoddy, but decided that this would be too dangerous. Instead, the CIs led the defendants to DEA agents posing as big-time drug smugglers.
The initial meeting between the defendants and the undercover agents occurred on October 26, 1983, in New Orleans, Louisiana. According to the defendants, the purpose of this meeting was merely to try to sell the agents some real estate in Florida. Instead, the agents offered to sell the defendants a large quantity of marijuana and tried to close a deal. The defendants say they merely listened to the sales pitch but did not show any interest in the deal. The government claims that the defendants were very interested in making a drug deal and that they offered several of their real estate holdings as consideration for the transaction. No final agreement was reached at this time and the men each went their separate ways.
The next meeting between the defendants and the agents took place on November 12, 1983, in Jackson, Mississippi. 2 It is not clear whether this meeting was contemplated at the October 26th meeting in New Orleans or whether it was set up subsequently by either side. In any event, one of the CIs had informed Agent Paige that On November 16, 1983, defendant Snoddy and Agent Paige again discussed the marijuana deal. The defendants were apparently having difficulty obtaining cash with which to buy the 140,000 pounds of marijuana but they remained interested in buying a smaller amount. Paige informed Snoddy that 100,000 pounds of the marijuana had been sold to someone else and that 42,000 pounds remained.
the defendants were interested in making a deal for only 20,000 pounds of marijuana rather than the 140,000 pounds originally offered to them at the October 26th meeting in New Orleans. When defendant Nixon counterproposed a smaller deal, Agent Paige acted surprised and upset. The men happened to be riding in a car at the time, and Paige demanded that the car be stopped in a nearby parking lot. Paige heatedly told defendant Snoddy that he had expected to go through with a deal for 140,000 pounds of marijuana. Now he would be left holding 120,000 pounds of weed, risking exposure to law enforcement officials, and the displeasure of his boss, George. The defendants contend that Paige's temper tantrum, coupled with insinuations of possible violence to the defendants by George and his cohorts, was a central factor in motivating them to negotiate with Paige. Paige, however, contends that his temper tantrum in the parking lot was simply an exhibition consistent with his undercover role as a big-time drug smuggler. Paige testified that any mention of possible violence because of this new development was strictly in regard to violence to himself by George, his boss. The defendants were not threatened or intimidated.
Paige and another agent, posing as a lieutenant of George, met with defendants Snoddy, Gilbreth, and Nixon on November 21, 1983, in Hammond, Louisiana, to further discuss the transaction. Several arrangements were made that day. The down payment for the 42,000 pounds of marijuana was set at $200,000 but the condominiums in Destin, Florida would be part of the deal. The five men flew to Destin, Florida in Snoddy's airplane to inspect the properties.
Defendants Snoddy, Gilbreth, and Nixon had also indicated that they wanted to see the marijuana before buying it. The DEA had recently seized a boatload of Colombian marijuana and the appropriate quantity was placed on a farm outside of Hammond, Louisiana for display to the defendants. After inspecting the weed, defendants Snoddy and Gilbreth signed a document transferring ownership of the condominiums in Destin, Florida to Agent Paige. Defendant Nixon was responsible for sending an eighteen-wheel tractor trailer to pick up the marijuana and transport it to a farm in Corinth, Mississippi for safekeeping. The parties agreed that one of Paige's associates would stay at the farm in Corinth to protect Paige's investment.
On November 27, 1983, defendant Nixon called Paige to inform him that he was only able to obtain $100,000 rather than $200,000 cash to pay for the marijuana. Paige acted disappointed but told Nixon to come to the farm in Hammond, Louisiana, anyway and that possibly something could be worked out. Upon his arrival at Hammond, Louisiana, Nixon told Agents Paige and Ruggerio that two truck drivers and a truck were waiting nearby at the Hammond Holiday Inn to load the marijuana. The number of the room the drivers were in would be etched in the dirt on the truck door. When he was arrested, Nixon was carrying $50,000 cash and the deeds to two farms he owned in Alabama and Tennessee. Agent Ruggerio proceeded to the Holiday Inn where he found the truck described by Nixon. The truck drivers were arrested as they left their hotel room to go to the farm. Defendants Snoddy and Gilbreth, who were not present in Hammond, Louisiana, at the time, were arrested later.
On January 27, 1984, a sixteen-count superseding indictment was returned against defendants Snoddy, Gilbreth, Nixon, Burchard, and Rhodes. The defendants were charged with conspiring to commit an offense against the United States, 18 U.S.C. Sec. 371; traveling in interstate commerce in Defendants filed a pretrial motion to dismiss the indictment on grounds of governmental overreaching. A pretrial hearing on the motion was held but the district judge opted to reserve her ruling until after hearing further evidence during the course of the trial. On the 13th day of trial, after all except the rebuttal evidence was in, the district court ruled against defendants on their motion to dismiss because of government overreaching. The court found that neither the conduct of the government agents nor that of the confidential informants was sufficiently outrageous to have violated defendants' due process rights. The defendants contend that this was error and point to the lawless character of the confidential informants as well as the coercive tactics of the government agents in prodding the defendants into a drug deal that they supposedly wanted no part of. Distasteful as the tactics of the DEA agents may seem, our decision is governed by certain legal standards peculiar to appellate review.
aid of an unlawful enterprise, 18 U.S.C. Sec. 1952; aiding a principal in the commission of an offense, 18 U.S.C. Sec. 2; attempted possession of a controlled substance, 21 U.S.C. Sec. 846; And using a communication facility in the commission of a felony, 21 U.S.C. Sec. 843(b). 3
Among their numerous contentions, the defendants urge two related but distinct defenses. These are based on the concept of entrapment which has been fleshed out in several United States Supreme Court and federal circuit court cases. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36...
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