U.S. v. Sivils
| Decision Date | 31 March 1992 |
| Docket Number | Nos. 90-6366,90-6375,90-6376 and 90-6420,s. 90-6366 |
| Citation | 960 F.2d 587 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Henry SIVILS (90-6366); Jerry Stokes (90-6375); William Dillard (90-6376); and Sherrill Jordan (90-6420), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joseph M. Whittle, U.S. Atty., Terry Cushing, Monica Wheatley (argued and briefed), Asst. U.S. Attys., Louisville, Ky., for plaintiff-appellee.
Rickie A. Johnson (argued and briefed), Symsonia, Ky., for defendant-appellant Henry Sivils.
E.W. Rivers (argued and briefed), Paducah, Ky., for defendant-appellant Jerry Stokes.
Carol W. Johnson (argued and briefed), Hopkinsville, Ky., for defendant-appellant William Dillard.
Len W. Ogden, Jr. (argued and briefed), Paducah, Ky., for defendant-appellant Sherrill Jordan.
Before: KENNEDY and JONES, Circuit Judges; and CONTIE, Senior Circuit Judge.
Defendants Henry Sivils, Jerry Lee Stokes, William Dillard, and Sherrill Jordan appeal their jury convictions for conspiracy to possess with intent to distribute cocaine (Sivils, Dillard, and Jordan) and conspiracy to convert government property to own use (Stokes and Dillard). Sivils also appeals from his guilty plea to use of a firearm during a drug offense. For the reasons that follow, we affirm.
During the months of August and September 1989, Christian County (Kentucky) Sheriff William Dillard and his deputy, Sherrill Jordan, participated in two conspiracies to violate federal law. The first conspiracy, in which their associate and former Special Deputy Sheriff Jerry Stokes also participated, resulted in the conversion of $12,000 in United States government funds. The second, in which Dillard and Jordan enlisted the aid of Henry "Bubba" Sivils, culminated in the apparent purchase of one kilogram of cocaine.
George Art Davis arrived in Hopkinsville, Kentucky in April 1989, acting as an undercover cooperating witness for the Federal Bureau of Investigation and the Kentucky State Police. Davis soon opened an electronics repair shop as his "cover" to facilitate his intelligence gathering. The shop was equipped with audio and video surveillance equipment, and on occasion, Davis wore a body recorder to record off-site conversations.
Davis met Stokes first, in June 1989, and Davis made it known that he was interested in being involved in criminal activity. Stokes operated a carnival gambling booth on the outskirts of town. He had a reputation as "a guy that knew everybody and that had a lot of connections." J.A. at 202. Stokes indeed had been a friend of Sheriff Dillard for over a decade, and Stokes boasted openly of his influence with Dillard. Dillard had commissioned Stokes as a Special Deputy and had given him a badge. Stokes was fond of displaying the badge and pretending to place people under arrest.
Stokes introduced Davis to Sheriff Dillard on August 9, 1989. Dillard had been a police officer for over twenty years and a sheriff for seven years. Dillard quickly provided Davis a list of police officers most inclined to arrest persons they suspected of criminal activity. Dillard then professed his admiration for a diamond ring that Davis was wearing, and Dillard took the ring with him at the conclusion of that first meeting. Dillard never paid for the ring. Dillard later asked a jeweler to appraise the ring and was told it was worth $2,000.
On the way to that first meeting, Stokes had told Davis that "whatever Mr. Dillard wants give it to him," promising Davis that they "would make a lot more than anything would cost." Id. at 204. Davis's ring was only the first item of value that Dillard received. Dillard accepted five additional diamonds from Davis at an August 16, 1989 meeting. These diamonds were later added to the ring that Dillard had obtained from Davis, increasing the ring's total value to about $5,000. Dillard also "borrowed" an automobile radar detector displayed in Davis's shop. Dillard did not return the radar detector and later told Davis that someone had stolen the equipment from his car. Dillard asked for, and received, $700 cash, which he used for a trip to Louisiana.
Jordan also pressed Davis for "gifts." Jordan obtained $100 from Davis on September 1, 1989, an amount he never repaid. Jordan later received a $500 payment in return for investigating the supposed theft of Davis's truck. Jordan kept half that money; Dillard helped him spend the rest at a sheriffs' association meeting in Nashville.
The first conspiracy, as charged in count one, began to solidify in the middle of August 1989. On August 16, Davis spoke with Dillard regarding a drug transaction that Davis was considering with a Hopkinsville drug dealer. Dillard vouched that the dealer was "a good guy." Id. at 155. Davis told Stokes of the drug proposal the next day. Stokes suggested that Davis delay any action with the other drug dealer until Dillard, Stokes, and Davis could discuss the deal together. The three then met on August 21, 1989. At that meeting, Stokes claimed he could buy one-half kilogram of cocaine in Memphis, Tennessee for $12,000. Davis obtained the required funds from the FBI soon thereafter, and the deal was under way.
Stokes, Dillard, and Davis gathered in Davis's shop the afternoon of August 28, 1989. Davis gave Stokes the $12,000 Stokes had requested. It had been decided that Stokes would use Davis's truck for the trip to Memphis. Accordingly, Davis drove his truck to Stokes' house in Franklin, Kentucky and left it for Stokes to use. Stokes testified that Davis later asked for the money back. Stokes said he would like to keep $1,000 to use as a down payment for the drugs in Memphis, and Davis agreed. Davis testified, however, that Stokes never gave any money back. In any event, Jordan met Davis at Stokes' house and drove Davis back to Hopkinsville in Jordan's police cruiser.
Stokes and his wife left for Memphis the next morning, August 30, 1989. Stokes interrupted his trip with a stop in Albany, Kentucky. While there, Stokes and some other people removed the trailer hitch from Davis's truck. Stokes later offered to sell the hitch to his friend Dallas Booth in Memphis, Tennessee.
Stokes arrived at Booth's home in Memphis on the afternoon of September 1, 1989. Stokes boasted that he was "pulling a scam" on Davis, id. at 263, and that Stokes had shared or would soon share part of the $12,000 with Dillard. Jordan would later admit that he received $300 for his role in the Memphis scheme.
Stokes continued his swindle on September 2, 1989. In the early morning hours, Stokes phoned Davis to tell him that the drug purchase had been successfully completed. A few hours later, Stokes abandoned Davis's truck in a Memphis car lot and drove away with Booth. Stokes then reported the truck stolen to the police and told Davis that "the stuff's gone." Id. at 208. Stokes returned to Franklin, Kentucky, where Dillard and Jordan picked up Stokes and his wife and drove them back to Hopkinsville.
Despite the alleged "failure" of the Memphis drug deal, Dillard and Jordan began discussions with Davis on September 12, 1989, which would result in the second conspiracy. Davis informed the two that he had a drug source in Bowling Green, Kentucky--who in reality was an undercover Kentucky State Police detective--willing to sell a kilogram of cocaine. Davis requested that Dillard and Jordan provide field drug testing kits for the purpose of evaluating the purity of a sample of the Bowling Green cocaine. Jordan provided these kits on September 18.
Dillard, Jordan, and Davis gathered again in Davis's shop on September 19, 1989 to test the cocaine sample. Pursuant to court authorization, a one-eighth ounce sample of cocaine had been furnished by the Kentucky State Police for this purpose. Dillard and Jordan used the test kits to confirm the cocaine quality. Jordan also tasted the cocaine with his tongue. Jordan then took a small amount of the cocaine away with him.
Because of the good "sample," it was decided that Davis would purchase the cocaine in Bowling Green, sell it in Nashville, and split the profit with Dillard and Jordan. Jordan initially offered to provide protection for Davis on the Bowling Green trip. Jordan, however, later appointed Bubba Sivils to go and guarantee Davis's safety, telling Davis that Sivils was "mine and Bill's [Dillard's] man." Id. at 190. Jordan later admitted to investigators that he expected a $1,000 payoff for his participation in the Bowling Green deal. Davis was to pay Sivils another $1,500 for Sivils' assistance.
The trip to Bowling Green took place on September 21, 1989. Davis met Jordan on a highway outside town, where Jordan introduced Sivils. Jordan assured Davis that Sivils was "packing," and Sivils indeed displayed a revolver during the Bowling Green drug transaction. Davis and Sivils were then joined by an undercover Kentucky State Police detective, whom Davis introduced as "the man who had the money to buy the cocaine." Id. at 216. The three proceeded to the Bowling Green Ramada Inn, the site of the purported drug deal.
They met another undercover agent at the hotel, this one posing as the drug seller. The "seller" produced a one-kilogram package of cocaine. Sivils thrust his knife into the package, withdrew it, and tasted the cocaine from the knife's blade. Sivils confirmed the drug's quality and carried the cocaine to Davis's truck. Davis phoned Dillard upon their return to Hopkinsville, confirming that the deal had gone well and that Davis was on his way to sell the drugs in Nashville.
The next day, September 22, Dillard appeared at a church meeting in Hopkinsville. Ironically, he participated in a panel of law enforcement officials and addressed the topic of drug problems in Christian County.
Meanwhile, that same day, Jordan read a newspaper article that revealed that George Art Davis was an FBI informant in ...
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