U.S. v. Resnick

• Decision Date: 11 October 1984
• Docket Number: Nos. 83-2392,83-2405,s. 83-2392
• Citation: 745 F.2d 1179
• Parties: 16 Fed. R. Evid. Serv. 1361 UNITED STATES of America, Appellee, v. David Allen RESNICK, Appellant. UNITED STATES of America, Appellee, v. Mark Dennis JUNO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1179

745 F.2d 1179

16 Fed. R. Evid. Serv. 1361

UNITED STATES of America, Appellee, v. David Allen RESNICK, Appellant.

UNITED STATES of America, Appellee, v. Mark Dennis JUNO, Appellant.

Nos. 83-2392, 83-2405.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1984.

Decided Oct. 11, 1984.

Rehearing Denied in No. 83-2392 Nov. 8, 1984.

Thomas J. Flynn, Andrew J. Mitchell, Minneapolis, Minn., for Resnick.

Paul Engh, Minneapolis, Minn., for Juno.

Thomas B. Heffelfinger, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before McMILLIAN, Circuit Judge, and FAIRCHILD, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

David Allen Resnick was convicted by a jury on two counts, and Mark Dennis Juno on three counts, of unlawful distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2(a) (1982); both were also convicted on one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1982). For reversal, both Juno and Resnick argue that the district court ¹ erred in denying their motions for acquittal at the close of the government's case-in-chief, because there was insufficient evidence to support their convictions. Juno argues that the government failed to prove that he was predisposed to distribute cocaine, an issue in his entrapment defense. Resnick also argues that certain hearsay statements by Juno, which implicated Resnick, should not have been admitted under the coconspirator exception because the government failed to adduce independent evidence of a conspiracy. Juno also contends that his trial counsel was inadequate, that the police misled him into cooperating, and that his sentence was too harsh. We affirm.

On March 2, 1983, Hennepin County Sheriff's Deputy Corey Thompson, while working undercover, met Mark Juno at the apartment of a known drug dealer with whom Thompson had been dealing. Juno was delivering one pound of marijuana and one gram of cocaine for Thompson to purchase. Juno and Thompson discussed a possible purchase of one-quarter ounce of cocaine from Juno by Thompson. They agreed to contact each other the following week.

On March 24, 1983, Thompson, still working undercover, met Juno at the Basin Bar, where Juno worked as a bartender. Juno told Thompson that he had a source who would provide good quality cocaine but who would not deal in quantities of less than one-half ounce. Juno offered to find another party to split the one-half ounce with Thompson. He also told Thompson that he had another source who had less expensive cocaine of a lower quality. After a short wait Juno returned to Thompson and told him that he could not find anyone to split the one-half ounce, but that if Thompson could find money for the full one-half ounce, a sale could be arranged. Thompson told him he did not have enough money and that he would have to arrange to meet at a later date.

On March 29, 1983, Thompson again met Juno at the Basin Bar and discussed purchasing one-quarter ounce of cocaine. Juno told Thompson that his source for good quality cocaine would only sell in one-half ounce quantities and tried unsuccessfully to find someone to split the one-half ounce with Thompson. Thompson then bought one-quarter ounce of lower quality cocaine, which Juno obtained from the other source. When he delivered the cocaine, Juno again told Thompson that he could get better cocaine from his other source.

On April 19, 1983, Juno telephoned Thompson at an undercover telephone number Thompson had given him. He arranged for Thompson to purchase one-half ounce of the better quality cocaine. He told Thompson that the source would bring the cocaine to him, but that Juno would have to be given the money first and would have to go a short distance to meet the source. This conversation was tape recorded and later played for the jury at trial.

That evening Thompson met Juno at the Basin Bar to purchase the one-half ounce of cocaine. They agreed that the purchase price would be $1,400 and went to Thompson's car where Thompson gave that sum to Juno in cash. Juno told Thompson he would be back in twenty or thirty minutes with the cocaine.

While Thompson returned to the bar, surveillance officers saw Juno leave Thompson's car, go directly to his own car, and drive away from the bar. They followed him approximately one mile to the parking lot of a Tom Thumb store, where Juno parked his car and remained inside. Approximately twenty minutes later a 1973 Buick, which a license plate check revealed to be registered to a David A. Resnick, pulled into the parking lot and parked. Its occupant walked over to Juno's car and got in. The two remained in Juno's car approximately five minutes; then the driver of the Buick returned to his car and drove away. Surveillance officers followed the Buick and were able to identify Resnick as the driver and lone occupant. Juno was followed by surveillance officers directly back to the Basin Bar.

Juno and Thompson then went to Juno's car, where Juno gave Thompson approximately one-half ounce of what was later determined to be approximately 77%-pure cocaine. Juno told Thompson that he had been dealing with drugs for at least nine years and that he had been dealing with that source for five years. Juno also said that the one-half ounce was very good quality and that he had used some while he was obtaining the one-half ounce from his source that evening. Juno and Thompson discussed the manner in which Juno sold cocaine; Juno told Thompson that he would have no problem selling the one-half ounce he had just purchased. They agreed to contact each other later.

Once on April 28 and three times on May 2, 1983, Juno telephoned Thompson at the undercover number. He asked Thompson if he wanted any cocaine, stating that his April 19 source had some available and that the source lived south of Brooklyn Park. These conversations were tape recorded and played for the jury.

During the afternoon of May 3, 1983, Juno telephoned Thompson five times. During these conversations, which were recorded and played for the jury at trial, Juno and Thompson arranged for Thompson to purchase two ounces of the better quality cocaine for $5,400. The transaction was arranged for that evening at approximately 9:00 p.m. because the source had a softball game that evening. Juno also stated that his source would call him at the bar that evening when he was ready and that when he got the call, he would have to "run quick." Late that afternoon one of the surveillance officers observed Resnick, wearing a gray sweat suit and a visor cap, leave his St. Louis Park apartment in a 1973 Plymouth with a dark body and a lighter vinyl top.

At approximately 9:05 p.m. Thompson met Juno at the Basin Bar. Juno told him that he would have to have the $5,400 "up front" and that it would take approximately ten to twenty minutes to perform the transaction, which would occur within three blocks of the bar. They went to Thompson's car, where he gave Juno $5,400 of officially recorded funds. Both men returned to the Basin Bar. A few minutes later Thompson entered the bar's men's room and saw Juno, who appeared surprised to see him there. When Thompson stated that he was nervous, Juno responded, "Don't worry. I have done this numerous times." He told Thompson that the transaction would be completed within ten minutes. They left the men's room together and parted company. At 9:23 p.m. Juno met Thompson near the bar entrance and gave him approximately two ounces of cocaine, later determined to have an average purity of 62.9%. Juno told him that his source was no longer at the bar and had gone directly home.

At approximately this same time a surveillance officer saw a Plymouth automobile with a white or cream-colored top and a maroon or bronze-colored body drive out of the Basin Bar parking lot. The officer identified the car in which Resnick was later arrested as being identical in color and appearance to the car he had seen leaving the Basin Bar.

Minutes after he gave Thompson the two ounces of cocaine, Juno was arrested. Approximately eleven grams of 90%-pure cocaine were recovered from his hand at the time of his arrest. Juno subsequently gave a statement in which he identified David Resnick as his source for the cocaine on both April 19 and May 3. This post-arrest statement was not offered by the government at trial as part of its case-in-chief but was referred to in its cross-examination of Juno.

At approximately 9:45 p.m. a surveillance officer observed Resnick returning to his apartment in St. Louis Park in the same Plymouth in which he had earlier been seen leaving. Resnick's apartment is approximately twenty to twenty-five minutes driving time from the area of the Basin Bar. Resnick looked directly at the surveillance officer and, after parking his car, remained in his car for several minutes and appeared to be bending over the front seat area. Resnick was arrested as he got out of the car. The car was seized by the police and a search warrant obtained. Later the same night, the police searched the car and found a softball glove in the back seat and, under the dashboard, the $5,400 of officially recorded funds that Thompson had given to Juno to buy the two ounces of cocaine. The stack of bills was wrapped in the same manner as it had been when Thompson had given it to Juno. After being advised of his rights, Resnick commented to the police: "I suppose they arrested the bartender too." At no time had the police mentioned Juno or his occupation to Resnick.

Juno was charged on three counts of distributing cocaine, based on the March 29, April 19, and May 3 transactions. ² Resnick was charged on two counts for the April 19 and May 3 sales. Both were charged on one count of conspiring to distribute cocaine. The one-half ounce of cocaine purchased on April 19 had an approximate "street value" of $5,000; the two ounces...