U.S. v. Onori

• Decision Date: 26 July 1976
• Docket Number: No. 75-2577,75-2577
• Citation: 535 F.2d 938
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. Phillip ONORI and Theodore Bukky, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 938

535 F.2d 938

UNITED STATES of America, Plaintiff-Appellee. v. Phillip ONORI and Theodore Bukky, Defendants-Appellants.

No. 75-2577.

United States Court of Appeals Fifth Circuit.

July 26, 1976.

Theodore Klein, Miami, Fla., for Onori.

Peter F. K. Baraban, North Miami, Fla., for Bukky.

Robert W. Rust, U. S. Atty., Peter Koste, Michael P. Sullivan, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before WISDOM ^*, COLEMAN and GEE, Circuit Judges.

GEE, Circuit Judge:

Phillip Onori appeals his conviction on two counts of possession with intent to distribute two grams of cocaine and the distribution of two grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and two counts of the same offenses with respect to one pound of cocaine. He and Theodore Bukky appeal conviction on one count of conspiracy to distribute approximately ten pounds of cocaine.

I. THE FACTS

Patricia Brown was a confidential informant who had known Bukky for several years. In November 1974, she and Bukky discussed whether he would sell or arrange to sell ten pounds of cocaine to her associates, who were actually federal agents. Although the discussions began on November 22, 1974, no cocaine was transferred at that time. Brown testified, however, that Bukky needed money and was anxious to close the deal. On December 5, 1974, Brown was fitted with an electronic surveillance device by federal drug enforcement agents before she met with Bukky, Onori, and Nicole Stegman (a co-defendant who was acquitted by a judgment notwithstanding verdict) at Bukky's apartment. Tape recordings of the ensuing conversation were played to the jury during the trial. ¹ The parties dispute the details of what the tapes actually record, but it is uncontested that the gist of the conversation was an apparent attempt by Bukky, Onori and Brown to arrange a sale of cocaine from Bukky and Onori's contacts to Brown's associates.

Although no agreement was reached at this conversation, the parties agreed to continue negotiations. The deal was finally arranged through a telephone conversation between federal agents and Theodore Brown, a friend of Onori commonly referred to as T-Bo. T-Bo apparently arranged with three cocaine dealers to provide the contraband, and these dealers were arrested at the consummation of the transaction. Bukky, Onori and Stegman, who were together in Bukky's apartment at the time, were arrested soon afterwards.

The defendants were tried jointly. They admitted that the taped conversation took place but offered an elaborate explanation that the incriminating remarks were merely the result of their "playing a role." Bukky testified that Patricia Brown, the former wife of a musician in the California-based rock group named Three Dog Night, had previously promised him an audition with the group. When Brown later suggested the sale of cocaine by Bukky, she indicated that this group was the eventual consumer and that the group would appreciate Bukky's help. Bukky testified that he was afraid that a blunt refusal to cooperate would have cost him his chance for an audition, so he agreed in general with Brown, although he refused to accede to Brown's entreaties to supply her with an ounce "taste" of cocaine.

Onori testified that he became involved when Stegman asked him for advice about this situation. Onori and Bukky allegedly agreed to pretend that they were interested in the transaction only to determine whether Patricia Brown was really a friend of Bukky: i.e., presumably, whether Brown would carry out her promise to get Bukky an audition even if Bukky refused to supply cocaine. The taped conversation therefore was, according to the defendants, a performance in which they, as actors, talked about a drug sale no one actually intended to consummate.

According to the defendants, T-Bo overheard Bukky ask Onori for advice, decided to supply Patricia Brown himself, and proceeded with the transaction contrary to Onori's express instructions. T-Bo and the suppliers, caught red-handed with the cocaine, all pled guilty to various counts of the indictment. The jury chose to disbelieve that the defendants had merely been "playing a role," and the appellants concede that there is sufficient evidence to sustain their convictions. They argue, however, that certain trial errors require reversal. Bukky also argues that he was entrapped "as a matter of law."

II. ENTRAPMENT AS A MATTER OF LAW

Bukky argues that the means used by the government to "make" the case against him violated his constitutional rights. He points to the fact that Patricia Brown was paid on a contingent fee basis for each drug transaction that "went down" i. e., that ended in an arrest. He argues that he was trapped by a device the gambit about an audition with a rock group tailored especially for him, and that the government had no reason to focus any investigation on him.

In Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 724 (1965), we reversed a conviction for possession of illicit liquor because the informer who made the government's case had been promised a specified sum of money for successfully incriminating the indicted defendants. The government contends here that it is not obliged to show special justifications for Patricia Brown's behavior since there was no showing that she was paid on a contingent fee basis. Her testimony shows, however, that she expected to receive compensation after a case "went down." This is clearly a way of describing a contingent fee arrangement, and the government's assertion to the contrary is unconvincing.

Even so, the Williamson rule does not require that we reverse. Williamson has been subsequently limited to require reversal of a conviction only when the specific defendant was picked out for the informer's efforts by a government agent. See, e. g., United States v. Joseph, 533 F.2d 282, 285 (5th Cir. 1976); United States v. Oquendo, 505 F.2d 1307 (5th Cir. 1975); 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); Henley v. United States, 406 F.2d 705, 706 (5th Cir. 1969). Although government agents eventually participated in the case, the record does not show that Brown was directed by government agents to make a case against Bukky. The Williamson "entrapment-as-a-matter-of-law" defense, therefore, does not apply.

III. "OTHER CRIMES" EVIDENCE

Bukky objects to testimony of Patricia Brown that he gave her cocaine on numerous occasions and that he sold her a small amount about two years before the transactions from which the instant convictions arose. ² This objection is apparently based on the ground that such evidence was not within the "intent" exception to the rule of inadmissibility of other-crimes evidence. See, e. g., United States v. Goodwin, 492 F.2d 1141, 1152 (5th Cir. 1974). We hold that there was substantial need for this evidence on the government's part, and the probative value of such evidence outweighed the possible prejudice that the jury would be induced to convict Bukky merely for being a "bad man."

Since the main defense at trial was that Bukky and Onori were merely " acting a role," the defendants clearly put in issue Bukky's intent. Once intent has been made an issue, the government is entitled to bring in evidence of other crimes showing that the defendant previously had such intent. The evidence objected to was, therefore, properly admitted. Compare United States v. Adderly, 529 F.2d 1178, 1181-82 (5th Cir. 1976), with United States v. Arteaga-Limones, 529 F.2d 1183, 1198 (5th Cir. 1976).

IV. PREJUDICIAL COMMENTS BY TRIAL COURT

Onori objects to the following colloquy, which occurred during cross-examination of a government agent:

Q: (by Onori's counsel) To your knowledge, prior to the entry of the agents into the apartment where Mr. Onori was, did he have any advance knowledge that agents were coming to arrest him, to your knowledge?

Mr. Koste: I object.

The Court: I will sustain in the objection. She (the agent) doesn't know what he knew and what he didn't know, and I would assume that, quite obviously, he did not know or he probably wouldn't have been there.

Mr. Moran: I don't know about that, Judge. I would have to object to that. I don't think that is a fair observation.

The Court: He would be down to his lawyer's office if he wasn't some place else. (emphasis added)

Onori moved for a mistrial, and he now contends that the denial of the motion was reversible error on the theory that the comments reflected the court's conclusion that he was guilty as charged. While these comments do not clearly reflect the court's conclusion of guilt, ³ the jury might have understood the trial court as expressing its opinion that Onori was guilty. In view of the great weight that a jury undoubtedly attributes to judicial comments, trial courts should endeavor to avoid comments such as were made in this case.

Although we do not approve of the comments made by the trial court, such comments, even if they suggest that the court believes the defendant to be guilty, are not necessarily reversible error. For example, in United States v. Jackson, 470 F.2d 684, 688-89 (5th Cir. 1972), cert. denied, 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (1973), this court held that there was no reversible error when the trial court said to the jury, "I wish you could find all the defendants guilty, and punish them, and everything else," where the trial judge was not urging the jury to return a guilty verdict but was commenting on the burden that the obligation to sentence represented to the court. The facts in this case do not approach the tenor of those in Jackson. Instead, this case is more analogous to United States v. James, 510 F.2d 546, 550-51 (5th Cir. 1975), cert. denied, 423 U.S. 855, 96 S.Ct....