U.S. v. Richardson

• Decision Date: 12 July 1985
• Docket Number: No. 84-3572,84-3572
• Citation: 764 F.2d 1514
• Parties: 18 Fed. R. Evid. Serv. 1161 UNITED STATES of America, Plaintiff-Appellee, v. Scott RICHARDSON, Rafael Bruno Crespo-Diaz, Reinaldo Crespo-Diaz, Benjamin Wayne Reese, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1514

764 F.2d 1514

18 Fed. R. Evid. Serv. 1161

UNITED STATES of America, Plaintiff-Appellee, v. Scott RICHARDSON, Rafael Bruno Crespo-Diaz, Reinaldo Crespo-Diaz, Benjamin Wayne Reese, Defendants-Appellants.

No. 84-3572.

United States Court of Appeals Eleventh Circuit.

July 12, 1985.

Stuart I. Hyman, Orlando, Fla., for Richardson.

Raymond L. Goodman, Orlando, Fla., for Rafael Bruno Crespo-Diaz.

Robert A. Leventhal, Orlando, Fla., for Reinaldo Crespo-Diaz.

Jay Paul Cohen, Orlando, Fla., for Reese.

Paul J. Moriarty, Asst. U.S. Atty., Orlando, Fla., for U.S.

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

Before FAY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.

JOHNSON, Circuit Judge:

The four appellants in this case were convicted of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. These charges grew out of an undercover investigation conducted by the Drug Enforcement Agency with the help of a confidential informer.

On March 12, 1984, the informer met with appellant Scott Richardson and received a small amount of cocaine for purposes of distribution. Afterwards, the informer approached some agents of the DEA and told them about Richardson, suggesting that the contact might lead to larger sales of drugs. The agents promised to pay the informer's expense money and possibly a larger sum after suspects were convicted but they never mentioned any amounts; the informer had never received more than $1,500 for his cooperation in prior cases.

The informer met again with Richardson later in March and delivered payment for the cocaine previously given to him. The DEA taped their conversation. The informer contacted Richardson again in April and offered to "do a pound" for him. Richardson, while expressing some reservations, said that he would "check around." He then called an acquaintance, Garry Craddock, to ask if he could obtain one pound of cocaine. Craddock in turn contacted Benjamin Reese, a person with whom he had sold cocaine in the past, for the same purpose. Eventually Craddock and Reese met with several other conspirators, including Rafael and Reinaldo Crespo-Diaz, where they all agreed to sell a pound of cocaine for $17,000 of the $22,000 that Richardson would demand from the buyers. During this same time Richardson carried on a series of telephone negotiations with the informer, each taped by the DEA, regarding possible methods of exchanging the drugs and the purchase money while keeping the drugs and money in separate locations at all times. Craddock also negotiated regarding the terms of the exchange.

On April 25, 1983, Richardson and Craddock met the informer and DEA Agent Kevin Behan at a convenience store. Behan remained at the store with the money while the informer went along with Richardson and Craddock to the residence of Reinaldo Crespo-Diaz in order to inspect the cocaine. When they arrived at the house they found Benjamin Reese, Reinaldo Crespo-Diaz, Rafael Crespo-Diaz, and Nancy Machado-Leon inside. Reese directed Rafael Crespo-Diaz to go get the cocaine for inspection and he did so. As the informer weighed the cocaine, he discussed price with Richardson. Once satisfied of the weight of the cocaine, the informer stated that he was ready to go back to the convenience store and retrieve the payment from Behan, who was waiting there. Richardson sent Reese to go with the informer.

Behan arrested Reese at the convenience store while agents surrounded Reinaldo's house. Once Behan had arrived at the house he knocked on the door, identified himself and asked that the occupants open the door. From the rear lawn of the house another agent could see through a window that Rafael and Reinaldo Crespo-Diaz were running down a hallway to enter a bathroom. Seconds later he heard a toilet flush. At this point Behan kicked in the front door of the house and the officers entered and identified themselves. Reinaldo Crespo-Diaz signed a DEA consent-to-search form after an agent explained it to him in Spanish.

While a search of the house was in progress, Richardson stood handcuffed on the front lawn and a search of his person produced two slips of paper containing the phone numbers of Craddock and an undercover DEA office. After Behan had given him his Miranda warnings, he explained the extent of the government's knowledge about Richardson's role in the conspiracy and stated that his car was subject to forfeiture. At several points, Richardson responded with a "yes." Behan concluded by suggesting that he talk to a lawyer about the possibility of cooperating with the government because if he did so he might "make it easy" on himself and possibly get probation.

The grand jury indicted all six persons involved in the transaction. Craddock pleaded guilty and became a cooperating witness for the government. Before trial, all of the defendants requested suppression hearings but the trial court refused to hold any. After trial the jury acquitted Machado-Leon and convicted all the other defendants on both counts. The judge sentenced Richardson and Reese to two concurrent ten-year sentences; Rafael Crespo-Diaz and Reinaldo Crespo-Diaz each received two consecutive ten-year sentences and the judge recommended that they be referred to the Immigration and Naturalization Service for possible deportation following completion of their sentences.

I. Governmental Overreaching

Richardson and Reese claim that the fundamental fairness guarantee of the due process clause bars their convictions because the government used a highly improper relationship with the informer to produce evidence against them. ¹ They allege that both the choice of investigative targets and the promise of payment after testimony at trial contributed to this impropriety.

The Constitution does place limits on the government's use of paid confidential informants. United States v. Garcia, 528 F.2d 580, 586 (5th Cir.), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976); Williamson v. United States, 311 F.2d 441 (5th Cir.1962). Particularly when large fees are given to informers, such arrangements must be treated with suspicion. United States v. Gray, 626 F.2d 494, 499 (5th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 616, 66 L.Ed.2d 500 (1980). Yet the government may, consistent with those constitutional limitations, pay for the services of a confidential informant, even on a case-by-case basis. Financial arrangements with informants normally will not violate the law if the government agents themselves do not select the person against whom the informant will direct his or her efforts and do not make the informant's payment contingent upon the conviction of a particular person. United States v. Walker, 720 F.2d 1527, 1539 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984).

The defendants allege that the government transgressed those limitations in this case. First, they claim that the agents selected them as targets by approving the informer's choice of investigative targets before they discussed the fee for the informer's services. The defendants find this improper because the agents did, in a sense, select who the informer would concentrate upon before making the financial arrangements. Yet the agents' decision is better described as an approval than as a selection. The informer brought up Richardson's name and the agents only gave him permission to pursue the matter. Such forms of approval are nearly inevitable in dealings with a paid informant. Because the agents did not actively select the target of investigation, this informant was given no improper incentives to obtain a conviction against a particular person.

Neither is it critical that the informer anticipated further payment after completion of his testimony. Under United States v. Gray, 626 F.2d 494 (5th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 616, 66 L.Ed.2d 500 (1980), the testimony of an informant paid by contingent fee will not be rejected unless there is evidence that he or she was promised payment contingent upon the conviction of a particular person. In this case there was no evidence of a promise to pay the informant contingent upon the conviction of Richardson or Reese. The informant testified that he hoped to receive as much as 700 dollars but did not know the amount he might actually receive or, for that matter, whether he would be paid anything at all. Cf. United States v. Valle-Ferrer, 739 F.2d 545 (11th Cir.1984) (informant became aware several days before trial of his eligibility for award of $1,000 per convicted defendant); United States v. Masri, 547 F.2d 932, 937 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977) (informant received unexpected payment after trial).

Finally, Richardson and Reese contend that, even if these identical contingent fee arrangements might be acceptable under some circumstances, the unsavory character of this particular informer should have prevented the government from giving him any financial incentive to fabricate incriminating testimony. They each presented evidence of prior drug use and dishonesty on the part of the informant. Nevertheless, the government cannot be expected to depend exclusively upon the virtuous in enforcing the law. So long as a reasonable jury could believe an informant's testimony after hearing relevant impeachment evidence regarding his or her reliability, the government may rely on such testimony. See United States v. Valle-Ferrer, 739 F.2d 545 (11th Cir.1984). The relationship between the government and the paid informant does not invalidate the convictions in this case.

II. Evidence of Crimes Outside Scope of Indictment

Appellants Reese and Richardson objected to the introduction of two pieces of evidence relating to crimes not included within the indictment. The first was testimony by Garry Craddock, the...