U.S. v. North

• Decision Date: 05 November 1984
• Docket Number: No. 83-1243,83-1243
• Citation: 746 F.2d 627
• Parties: 17 Fed. R. Evid. Serv. 787 UNITED STATES of America, Plaintiff-Appellee, v. Michael Gibson NORTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 627

746 F.2d 627

17 Fed. R. Evid. Serv. 787

UNITED STATES of America, Plaintiff-Appellee, v. Michael Gibson NORTH, Defendant-Appellant.

No. 83-1243.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 6, 1984.

Decided Nov. 5, 1984.

Dennis Nerney, Kimberly Reiley, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

Diana Samuelson, San Francisco, Cal., for defendant-appellant.

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

Before BROWNING, Chief Judge, DUNIWAY and SNEED, Circuit Judges.

DUNIWAY, Circuit Judge:

North sold a lot of LSD and gave a little cocaine to an undercover agent. At trial, he claimed entrapment. On appeal, he challenged: (1) a supplemental instruction allowing the jury to consider entrapment separately as to each transaction, (2) refusal of his supplier/co-defendant's request for an entrapment instruction, (3) an instruction about undercover agents, (4) erroneous submission to the jury of extrinsic evidence, and (5) prosecutorial bad faith in adding cocaine charges and resisting discovery. We affirm.

I. FACTS.

North may or may not have sold large quantities of LSD to Tony Sesso in 1978 to 1980. Sesso subsequently became a government informant. Under disputed circumstances, North and Sesso renewed their acquaintance in 1982. On about August 28, 1982, North flew from California to Chicago, where Sesso introduced him to undercover agent Robert Fanter, to whom North sold about 4,000 50-microgram doses of LSD. Sesso came to California around September 15. Fanter came to Santa Cruz and bought from North, on September 17, what turned out to be 6,000 doses of LSD for $6,000. There was some discussion of cocaine. On October 15, North sold Fanter about 10,000 doses of LSD for $7,500 and gave him samples of about an ounce of marijuana, a gram of cocaine, and some MDM (an uncontrolled substance). On October 26, North delivered 30,000 doses of LSD to Fanter, and was arrested. The government also arrested North's suspected supplier, one White, and seized from White about 25 grams of cocaine, over a pound of marijuana, and some MDM.

On November 3, a grand jury indicted North and White on three counts of distributing LSD (the September 17, October 15, and October 26 sales), 21 U.S.C. Sec. 841(a)(1), and one count of conspiracy to distribute LSD, 21 U.S.C. Sec. 846. On December 22, the government filed a superceding indictment, adding a count of cocaine distribution against North, a count of cocaine possession with intent to distribute against White, and a count of conspiracy to distribute cocaine against both. After a joint trial, the jury convicted North on all counts except the September 17 LSD sale. The jury did not reach a verdict as to co-defendant White. North appeals.

II. CONTINUING ENTRAPMENT.

North admitted selling the LSD to Fanter, but testified that Sesso had pressured him into making the whole series of deals. The court gave the jury a standard instruction on entrapment, which focussed on the defendant's previous intent or predisposition to violate the law. See United States v. Marcello, 9 Cir., 1984, 731 F.2d 1354, 1356-57.

During its deliberations, the jury asked to rehear the entrapment instruction and specifically whether "entrapment must apply in toto or to each individual count." After discussion with counsel and over North's objection, the court instructed:

One, you may find that defendant North was entrapped in the first instance and therefore all criminal acts following were the subject of the initial entrapment;

Or you may find two, you may find that there was no entrapment and therefore none of the acts are subject to the defense of entrapment.

Three, you may find that there was entrapment as to some of the acts, but no entrapment as to other of the acts.

These are questions of fact for you to determine.

The court also repeated the general entrapment instruction.

North's argument is as follows: If he was not predisposed to sell drugs when Sesso induced him to do so in August and September, then as a matter of law he could not have become predisposed to commit the similar and related offenses in October for which the jury convicted him. His acquittal of the September 17 sale, to which his only defense was entrapment, implies a finding that he was not predisposed then to sell LSD. Therefore, because the offenses were all parts of a single course of dealing, and no evidence showed that North's state of mind or disposition changed--the prosecution having argued at trial that North was predisposed all along--either he was predisposed to make all the sales or he wasn't predisposed as to any. Thus, only the first two options specified by the instruction were valid. The third option offered the jury an improper compromise, which it adopted, to North's prejudice.

The government argues that the issue here involved the "tailoring of instructions," to be reviewed for an abuse of discretion. However, whether disposition can arise and entrapment can cease in the midst of a series of drug sales is clearly a matter of law, which we review de novo. See Matter of McLinn, 9 Cir. (in banc), 1984, 739 F.2d 1395, 1398; United States v. McConney, 9 Cir. (in banc), 1984, 728 F.2d 1195, 1201.

The question of whether a factfinder should or may consider entrapment and predisposition in toto or separately as to each charged offense appears to be one of first impression. North relies primarily on the statement in United States v. Williams, 2 Cir., 1983, 705 F.2d 603, 618, that: "A defendant's predisposition is not to be assessed 'as of that time when he committed the crime.' Normally, predisposition refers to the state of mind of a defendant before government agents make any suggestion that he should commit a crime." Thus, North argues, the crucial fact was his state of mind before Sesso approached him, not before each sale to Fanter. But in Williams the defendant was "ready and willing" to accept the criminal opportunity when it was first presented, and repeated his willingness to commit the crimes throughout the course of events. Id. at 619. Thus, Williams did not consider whether a disposition to commit an offense that did not initially exist could arise later. The court in Williams limited its statement: "normally."

We do not think that, if North was not initially disposed to sell drugs, he could not, as a matter of law, develop such a disposition during the later course of dealing. He might well have found such dealing so profitable and easy that he thereafter willingly continued it, regardless of Sesso's original inducement. Even if the government induced the sale on August 28, for which North was not charged, and the government was unable to prove beyond a reasonable doubt that it did not entrap North in the sale on September 17, for which he was not convicted, it is still possible, as a matter of law, that North could have freely decided, during the month that passed before the October sales, to traffic in drugs. The initial entrapment, assuming it existed, did not immunize North from criminal liability for subsequent transactions that he readily and willingly undertook.

Whether any initial entrapment extended through some or all of the later transactions was a question of fact that the instruction properly left to the jury. The record suggests that the court's instruction, and the jury's verdict, were sound. During the month between the September 17 sale and the October sales, North alleged no contact with Sesso, no alleged threats to North's brother, no events implying that Fanter did more than provide apparently favorable opportunities to break the law in October. The escalating volume of trade also suggests willing participation by North. We find the instruction proper.

III. ENTRAPMENT OF CO-DEFENDANT WHITE.

North argues that the court's rejection of White's entrapment defense was erroneous, and deprived North of "valuable corroborative evidence as to his own defense of entrapment."

Although the theory of secondary or derivative entrapment may have some merit, see Note, Entrapment Through Unsuspecting Middlemen, 95 Harv.L.Rev. 1122, 1128 (1982), we have consistently held that the entrapment defense is available only to defendants who were directly induced by government agents. Even if White could claim entrapment, North would lack standing to assert White's defense. See United States v. Lomas, 9 Cir., 1983, 706 F.2d 886, 891; United States v. Shapiro, 9 Cir., 1982, 669 F.2d 593, 597-98.

IV. UNDERCOVER AGENT INSTRUCTION.

At the government's request and over North's objection, the court instructed the jury about permissible government undercover methods. The instruction reads:

The government has presented testimony of undercover agents involved in its investigation of this case. Indeed, much of the evidence that has been introduced was derived directly or indirectly from the use of these agents.

In drug-related offenses, law enforcement personnel have turned to one of the only practicable means of detection, the infiltration of drug rings and a limited participation in their...