U.S. v. Sheldon, 76-1679

• Decision Date: 20 December 1976
• Docket Number: No. 76-1679,76-1679
• Citation: 544 F.2d 213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott SHELDON and Mitchell Paul Solomon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 213

544 F.2d 213

UNITED STATES of America, Plaintiff-Appellee, v. Scott SHELDON and Mitchell Paul Solomon, Defendants-Appellants.

No. 76-1679.

United States Court of Appeals, Fifth Circuit.

Dec. 20, 1976.

Barry L. Garber, Daniel S. Pearson, Miami, Fla., for defendants-appellants.

Robert W. Rust, U. S. Atty., Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, and TUTTLE and TJOFLAT, Circuit Judges.

TUTTLE, Circuit Judge:

Appellants appeal from their conviction on several counts of an indictment charging them with violations of narcotics laws. The indictment charged Solomon on all five counts of possession with intent to distribute, distribution, and with conspiring with Scott Sheldon to commit the substantive offenses. Sheldon was charged in two of the counts, of the conspiracy and the distribution of cocaine.

It is not disputed that through the participation by both Solomon and Sheldon, a sale was completed by another co-defendant Leaman in the apartment of a further co-defendant Brock. Only Solomon and Sheldon appeal in this case and their sole defense was entrapment. Now, on appeal, appellants claim reversible error occurred in three particulars: (1) The trial court, by excessive intervention, both by comment, and by questioning the defendants' witnesses, gave the jury an impression of bias favoring the Government; ² that by a charge with respect to the effect of the admitted importunities by Government agents of the defendants, the trial court in effect directed a verdict against the defendants on the issue of entrapment; and, (3) a further part of the trial court's charge to the jury gave an incorrect statement of the effect to be given to the jury's inability to find guilt beyond a reasonable doubt.

In order better to understand the defense of entrapment, we think it appropriate to quote from an opinion by this Court in United States v. Gomez-Rojas, 507 F.2d 1213 (5 Cir. 1975):

"The United States Supreme Court first recognized and applied the entrapment defense in Sorrells v. United States 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. In Sorrells, Chief Justice Hughes ruled for the Court that as a matter of statutory construction, the entrapment defense prohibits Government officials from instigating a criminal act by persons 'otherwise innocent in order to lure them to its commission and to punish them,' 287 U.S. at 448, 53 S.Ct. at 215, 77 L.Ed. at 413, reasoning that Congress passes criminal statutes to deter crime rather than encourage it. In 1958, in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and again in 1973, in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, 2 the Court reaffirmed the principle set out in Sorrells: that '(e)ntrapment occurs only when the criminal conduct was "the product of the creative activity" of law-enforcement officials.' Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. at 821, 2 L.Ed.2d at 851. Thus, the entrapment defense turns on the intent or predisposition of the defendant to commit the crime. (Emphasis in original).

This Court further said in Gomez-Rojas:

"Once the defendant presents a prima facie case of entrapment indicating that Government conduct created 'a substantial risk that the offense would be committed by a person other than one ready to commit it,' Pierce v. United States, 5th Cir. 1969, 414 F.2d 163, 168, the burden shifts to the Government to prove beyond a reasonable doubt that the accused was predisposed to commit the crime charged against him," citing United States v. Mosley, 5th Cir. 1974, 496 F.2d 1012.

Some background is necessary for understanding the conduct of the trial court which is now alleged as error. Sheldon and Solomon had been friends since childhood. At the time of the sale of the narcotics involved here, they were both 26 years old. They were both employed and neither had a criminal record. The Government introduced no evidence indicating a predisposition to deal in narcotics in any form prior to the events that will be outlined below. Both Sheldon and Solomon, residents of Miami, Florida, had been students at the University of Arizona and while in Tucson, Sheldon had met one Michael Chick, some six years previous to the sale now referred to.

At the end of July in 1975, Sheldon's friend Chick began calling him to tell him that he was coming down from Vero Beach where he lived to stay in Miami. On at least one occasion he told Sheldon he was coming to Miami for the purpose of buying cocaine. Sheldon testified that he told him "do what you want." Chick did come to Miami and presented himself to the Miami Drug Enforcement Administration in early August. DEA Agent Jose Roque who was later to become the active agent to work with Chick, described Chick as a "walk-in informant." Roque verified that Chick had been an informant with the Drug Enforcement Administration in Tucson for several months. In Miami, Chick stayed at the home of Drew and Carol Malamud, friends of the defendants. Both Sheldon and Solomon saw him there, although Sheldon more frequently. Sheldon testified that Chick repeatedly sought to get him to buy him some drugs, both by personal requests and by numerous telephone calls. He testified that Chick asked him about making a sale of cocaine between 20 and 30 times in a period of approximately two weeks and that he had told his friends, the Malamuds and Solomon, that Chick was "driving him up the wall." Solomon testified that Chick tried to persuade him to become involved in the drug deal and asked that he meet with "Joe" and told him of great sums of money to be made. Solomon says he responded that he was not interested. Chick tried on numerous times to call Solomon who failed to answer the telephone. After some two or three weeks of this importuning by Chick, ¹ he dropped out of the picture and Roque began calling the two defendants. Sheldon testified that Roque called him six times seeking an opportunity to meet with him. Roque testified that he called Solomon four times and reached him twice. On the second conversation, Roque obtained an agreement from Solomon to meet him. The meeting was arranged. Solomon, accompanied by Sheldon, went through an elaborate procedure to satisfy themselves that Roque was a genuine purchaser. Then Solomon took Roque to an apartment where a quantity of cocaine was turned over to him. This resulted in the immediate arrest of both men.

I. INTERVENTION BY THE TRIAL JUDGE

In their brief, appellants say that the trial court intervened 130 times during testimony being given by the defendants or their witnesses, whereas the brief states that "the court asked ten innocuous questions of Government witnesses." This is not disputed by the Government. As indicated in United States v. Lanham, 416 F.2d 1140 (5th Cir. 1969), the statistical count of interruptions by the trial court is of some significance in a case such as that now before us. However, it is the nature of the interruptions that appellants here principally complain of. The first challenge relates to the interruption of defense witness Malamud's testimony. Malamud had stated that while Chick was staying at his house he had seen him with a roll of bills of approximately $200 on three occasions and yet he testified that he had taken Chick to a pay phone numerous times and that Chick was always out of money and he remembered it because Chick always borrowed the dime from him to make the call. At this point the court interrupted as follows:

"THE COURT: So he had $600?

THE WITNESS: Right, at various times.

THE COURT: Over a period of two and a half weeks?

THE WITNESS: Three weeks, two and half to three weeks, right.

THE COURT: And every time you saw him he asked you for dimes for telephone calls?

THE WITNESS: Right.

THE COURT: So though he had $600 that you saw

THE WITNESS: I didn't see it in one lump sum.

THE COURT: But you saw it on three different occasions?

THE WITNESS: Right."

The next interruption criticized by appellants, dealing with the same situation, occurred when Mrs. Malamud was on the stand. The following occurred:

"THE COURT: It would have been cheaper to put in a telephone than spend all that gas getting to it, wouldn't it?

THE WITNESS: I have a foreign car, it doesn't use much gas.

THE COURT: What kind of foreign car?

THE WITNESS: An MGB."

Further, the action of the trial court in interrupting defendant Solomon, when he was testifying on his own behalf, to point out that evidence given by him was in conflict with testimony previously given in the development of the Government's case, is, at the very least, an unusual procedure for a trial judge to employ. The Government's witness Roque had testified that Sheldon had made a search of him and had had him take his shirt off to search for a transmitter. Then when Solomon stated in reply to counsel's question why he requested this search, the court interrupted by saying:

"I do not recall any evidence that it was suggested to him. The only evidence I recall and the jury will remember the evidence, it is not my recollection but theirs which control that it was Mr. Sheldon that did the 'take the shirt off' routine or Mr. yes, Mr. Sheldon."

Then, still during Solomon's testimony, his counsel asked him: "You were not able to find a transmitter of any type, were you?" To which Solomon answered: "No sir." Counsel then asked him: "You did not even open the briefcase far enough to find what an agent has testified was in there, did you?" Solomon again answered: "No sir." Thereupon the court said: "As I recall the testimony counsel, the agent who testified, I think Charlie Brown, did not say that this was the witness who requested him to open a briefcase. He said it was Mr. Sheldon and that he opened it and exhibited to Mr. Sheldon, not to this witness."

While it was...