U.S. v. Rey

• Decision Date: 09 March 1987
• Docket Number: No. 86-5093,86-5093
• Citation: 811 F.2d 1453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William REY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1453

811 F.2d 1453

UNITED STATES of America, Plaintiff-Appellee, v. William REY, Defendant-Appellant.

No. 86-5093.

United States Court of Appeals,

Eleventh Circuit.

March 9, 1987.

Mark King Leban, William Aaron, Miami, Fla., for defendant-appellant.

Leon B. Kellner, U.S. Atty., Robert Lipman, David Leiwant, Sonia O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before CLARK, EDMONDSON and KEITH ^*, Circuit Judges.

EDMONDSON, Circuit Judge:

Appellant William Rey appeals his conviction for conspiracy to possess cocaine with intent to distribute, actual possession of cocaine with intent to distribute, and use of a telephone to facilitate the commission of the cocaine conspiracy. We affirm the judgment of the district court.

I. The Williamson Issue

Rey contends that an undercover agent of the Drug Enforcement Agency, McCracken, selected him as the target of an investigation. Furthermore, Rey alleges that the DEA asked two informants, Badalich and Kulowitch, to participate in the investigation and, pursuant to a plea arrangement, promised them more lenient treatment with respect to criminal charges pending against them in return for their cooperation. According to Rey, the DEA's use of contingently motivated informants violated his due process rights under the doctrine announced by the former Fifth Circuit in Williamson v. United States, 311 F.2d 441 (5th Cir.1962). ¹

The government disputes Rey's factual allegations, claiming that informant Badalich suggested Rey as an investigatory subject. Moreover, the government denies that its agreement with Badalich was contingent on the investigation of Rey. Therefore, the government contends that its conduct did not violate Rey's due process rights under the Williamson doctrine.

The United States magistrate determined that Williamson is still good law in this circuit and recommended that the case against Rey be dismissed "because of a per se and a fortiori violation of the Williamson rule against contingently motivated informants." The district court rejected this recommendation, ruling that "the issue is one of entrapment and must therefore be decided by a jury."

In Williamson, supra, the government agreed to pay informant Moye an allowance of the ten dollars per diem, plus a two hundred dollar reward if he purchased moonshine whiskey from defendant Williamson leading to Williamson's conviction and a one hundred dollar reward if he made a like purchase from co-defendant Lowrey. 311 F.2d at 442-43; id. at 446 (Cameron, J., dissenting). A divided panel of the former Fifth Circuit reversed Williamson's conviction, holding that the government's conduct was improper.

Judge Rives held that defendants' convictions must be reversed on the issue of entrapment. Id. at 441. Judge Rives stated that:

It may possibly be that the Government investigators had such certain knowledge that Williamson and Lowrey were engaged in illicit liquor dealings that they were justified in contracting with Moye on a contingent fee basis, $200.00 for Williamson and $100.00 for Lowrey, to produce the legally admissible evidence against each of them. It may be also that the investigators carefully instructed Moye on the rules against entrapment and had it clearly understood that Moye would not induce them to commit a crime, but would simply offer them an opportunity for a sale. None of these facts or circumstances were developed in the evidence....

Without some such justification or explanation, we cannot sanction a contingent fee agreement to produce evidence against particular named defendants as to crimes not yet committed. Such an arrangement might tend to a "frame up," or to cause an informer to induce or persuade innocent person to commit crimes which they had no previous intent or purpose to commit....

Moye's deposition standing alone furnishes prima facie evidence of wrongdoing on the part of the Government investigators in employing Moye on a contingent fee basis. Lacking any contradiction, justification or explanation of such a basis of employment, the convictions of the defendants resulting from Moye's services cannot be sustained.

Id. at 444-45 (emphasis added).

In a special concurrence, Judge Brown held that the case did not involve entrapment. Rather, Judge Brown indicated, the government's conduct violated due process: "the means used to 'make' the case are essentially revolting to an ordered society." Id. at 445. Judge Cameron dissented. Id.

To the extent that Williamson held that the government's use of contingently-motivated informers creates an entrapment defense, it is no longer good law. The Supreme Court has subsequently held that the entrapment defense focuses on the subjective predisposition of the defendant to commit a crime, rather than on the conduct of the government. Where a defendant is predisposed to commit a crime, he cannot be entrapped, regardless of how outrageous or overreaching the government's conduct may be. 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 L.Ed.2d 366 (1973).

Indeed, this circuit has held that "Williamson is not an entrapment case at all, since there was little question that the defendants were predisposed to commit the crimes for which they were convicted." United States v. Walker, 720 F.2d 1527, 1529 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984); see also United States v. Richardson, 764 F.2d 1514, 1520 n. 1 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985). Therefore, the district court in the case sub judice erred by treating the Williamson issue as an entrapment defense.

In light of the decisions rendered by this court, whether Williamson has continuing validity in this circuit as a due process doctrine is questionable. Prior to the division of the former Fifth Circuit into the present Fifth and Eleventh Circuits, the former Fifth Circuit never followed Williamson to reverse a conviction. ² Nor has the Eleventh Circuit ever applied Williamson to reverse a conviction. Instead, in more than thirty reported opinions decided subsequent to Williamson involving contingently-motivated informers, the Eleventh Circuit and its predecessor, the former Fifth Circuit, have continually distinguished Williamson and restricted it. ³ It is interesting to note that even Judge Brown, the only judge on the original Williamson panel who treated the government's conduct not as entrapment, but as a due process violation, subsequently joined a per curiam opinion affirming Williamson's conviction after retrial on remand. Williamson v. United States, (Williamson II), 340 F.2d 612 (5th Cir.), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 724 (1965).

In rare cases, use of a contingently motivated informer might, conceivably, be so outrageous as to violate due process. Cf. United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1953); United States v. Tobias, 662 F.2d 381, 385-86 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982). ⁴ But this does not mean that the Williamson doctrine is good law, i.e., that absent justification or explanation, payment of an informer contingent upon obtaining the conviction of a specific person in itself violates due process.

We need not decide, as a general proposition, whether Williamson is actually the law in this circuit. Instead, we look to the concrete facts of this case. Agent McCracken participated as the would-be purchaser in the cocaine "buy" in this case. Where "the [drug] buy was not made by the informer, ... but rather by the agent, ... the problem noted in Williamson ... that a contingent fee arrangement might tend to a 'frameup' by an informer is not present." United States v. Jenkins, 480 F.2d 1198, 1199-1200 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 256, 38 L.Ed.2d 151 (1973); see also, United States v. McClure, 577 F.2d 1021, 1022-23 (5th Cir.1978) (participation of agent in drug buy eliminates possibility that informer fabricated evidence to collect a fee).

Moreover, the government did not call the contingently-motivated informers as witnesses in this case; instead, the informants were called by appellant to testify as part of his entrapment defense. Thus, the potential problem of a contingently-motivated informer being presented by the government as a witness and perjuring his testimony was not present in this case.

In contrast, during Williamson's first trial, the prosecution relied on the informant's testimony as part of the government's case. At the beginning of the government's case in chief, the government introduced the informant's deposition into evidence and read it to the jury. The informant had died prior to Williamson's first trial. Therefore, in Williamson the potential problem of perjury by a contingently motivated government witness was not only present, but aggravated by the fact that the jury heard the informant's testimony read from a cold deposition and was unable to observe the informant's demeanor when assessing his credibility. ⁵

Even assuming that Rey's version of the facts is true, ⁶ the government's use of contingently-motivated informers in this case did not violate due process. Although Rey may find the use of such informers to be unsavory, their use certainly did not rise to the level of a constitutional violation. ⁷

If Williamson remains, in reality, the law of this circuit, it does not apply to the circumstances of this case.

II. The Allen Charge

The jury deliberated for approximately five and a half hours on Friday, November 22, 1985, and resumed its deliberations at 9:30 a.m. on Tuesday, November 26, 1985. At noon on Tuesday, the jury informed...