U.S. v. Slaughter

• Decision Date: 22 November 1989
• Docket Number: No. 88-1302,88-1302
• Citation: 891 F.2d 691
• Parties: 29 Fed. R. Evid. Serv. 465 UNITED STATES of America, Plaintiff-Appellee, v. Ray Owen SLAUGHTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 691

891 F.2d 691

29 Fed. R. Evid. Serv. 465

UNITED STATES of America, Plaintiff-Appellee, v. Ray Owen SLAUGHTER, Defendant-Appellant.

No. 88-1302.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 12, 1989.

Decided Nov. 22, 1989.

Daniel Markoff, Federal Public Defender, and Randall J. Roske, Chief Asst. Federal Public Defender, Las Vegas, Nev., for defendant-appellant.

William A. Maddox, U.S. Atty., and Anne Kristina Perry, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before WALLACE and NOONAN, Circuit Judges, and ZILLY, District Judge. ^*

ZILLY, District Judge:

Ray Owen Slaughter was convicted on two of three counts of distribution of a controlled substance (cocaine) in violation of 21 U.S.C. § 841(a)(1). Slaughter appeals his convictions alleging outrageous governmental misconduct, the trial court's failure to admit certain out-of-court statements of a witness who was unavailable at the time of trial and challenging the court's failure to give certain jury instructions on entrapment. We have jurisdiction under 28 U.S.C. § 1291. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Slaughter began working as a polygraph examiner in 1973 in the office of the Clark County Public Defender in Las Vegas, Nevada. For several years, Slaughter worked as a contract employee for the county, and also conducted his own business simultaneously. While he worked as a polygraph examiner, Slaughter had occasion to review various polygraphs involving sensitive criminal investigations in the Clark County area. In 1977, another police polygrapher, Charles Lee, had concluded that former Judge Harry E. Claiborne "had told the truth" about allegations that Claiborne, prior to becoming a judge, had retained a private investigator for the purpose of illegally planting an electronic eavesdropping device. The matter was then closed as to Mr. Claiborne. In 1980, after Claiborne had been appointed to the bench, the FBI began investigating the same issue again and Charles Lee was subpoenaed to testify before the grand jury about his 1977 polygraph charts and findings. Lee believed he was "in the middle of a war between the head of the FBI and a federal judge" and complained to Clark County authorities. A decision was made to have every governmental polygraph examiner in Clark County review Lee's 1977 charts and findings on the Claiborne matter. Slaughter was one of four people who reviewed the Claiborne polygraph charts and Slaughter, as well as the other examiner, all agreed with the earlier findings of Lee.

In 1982, Slaughter tested Clark County Sheriff John Moran as a result of remarks Moran made during his campaign for reelection. Moran's opponent had made remarks about Moran's underworld connections with Frank Cullotta which were made public just after Moran had won the Democratic primary election. Sheriff Moran, in an effort to counter these allegations, took and passed a polygraph test administered by Slaughter. The test results were made public. After the release of the results, new allegations were made that Slaughter had improperly passed Cullotta in a prior polygraph examination.

In 1987, Slaughter conducted a polygraph on two Las Vegas police detectives suspected of theft from certain safety deposit boxes at the Western Vault Company in Las Vegas. The two detectives, Edward Schaub and Steve Scholl, were tested by Slaughter regarding thefts occurring at the local vault where drugs and cash, maintained as evidence by the police, had been stored. Slaughter passed both detectives at the time of the polygraph. The government's confidential informant in this case told the FBI that Slaughter admitted in their first meeting that he "had polygraphed some metro police officers who lied." (Ex. "U"; RT G.T. EH 52-53). After Slaughter's arrest in this case, the FBI requested that Schaub and Scholl take additional polygraphs. (RT I EH 201, 246-247).

Commencing in about 1981, Slaughter began using cocaine. Rumors that Slaughter used and distributed cocaine circulated in the Las Vegas law enforcement community for several years. However, because of Slaughter's long time association with the law enforcement community in Las Vegas, it was difficult for any agency to conduct an investigation into these rumors. In 1987 Slaughter was targeted by federal officials for investigation. SSA Togliatti, head of the political corruption squad, is the government agent who began the investigation of Slaughter using informant Belinda Antal.

On April 11, 1987, Belinda Antal moved to Las Vegas with her boyfriend Freddie. Antal's move to Las Vegas was prompted by her participation as an undercover informant for the FBI in a drug and gambling case in Rochester, New York. Antal assisted the FBI in New York in order to help her boyfriend, Freddie, avoid charges of selling cocaine. As a result of Antal's help, Freddie and Antal were relocated at government expense to Las Vegas. Before leaving Rochester, New York, Antal told the FBI that if there was anything that she could ever do for them "they could call upon me." (RTBA EH 17) Immediately upon her arrival in Las Vegas, Antal met with Rochester, New York FBI agents who introduced her to Las Vegas SSA George On approximately April 14, 1987, Antal first called Slaughter. She gave him her name and said she was back in town looking for work. He said he remembered her from Mickey's Appetizers and they arranged to meet later that day at the Prime Rib Restaurant. At the appointed time and place, Antal met Slaughter. He acted as if he knew her, although she did not recognize him. (RT I, 21). Slaughter found Antal to be "a very attractive young lady" who was provocatively dressed. At the time Antal was a six foot tall, 24 year old woman. Slaughter was a 52 year old divorcee.

                Togliatti.  (RT II 60-63).   In a conversation with Togliatti, Antal advised him that she formerly resided in Las Vegas and had frequented a lounge/bar called Mickey's Appetizers.   Togliatti recalled that Slaughter also frequented the same bar and asked Antal if she knew him.  (RT II 60;  RT 1117).   Antal was uncertain, but agreed to give Slaughter a call to see what would happen.   Thus began the events giving rise to the criminal charges here at issue
                

During Antal's first meeting with Slaughter, they were joined by another woman, Robin Kenny. Thereafter, Antal observed Robin and Slaughter pool their money, $50 each, to purchase a gram of cocaine. (RT I 23-25; RT II 73-74, RT III 186). Slaughter left their table in the restaurant, walked into the kitchen area and then returned. Shortly thereafter, a chef named "Ricardo" came to the table and slipped Slaughter a package. (RT I 24). Slaughter gave the package to Robin who then proceeded to the restroom. She returned and handed the package back to Slaughter who then proceeded to the restroom. Slaughter returned to the table and the three then agreed to go to Slaughter's condominium. (RT I 26; RT II 78; RT III 187). At Slaughter's residence, Antal saw Slaughter and Robin use cocaine, but she categorically denied using any cocaine. (RT I 27, RT II 80). In contrast, Slaughter testified that Antal used cocaine, that he was impressed with the large quantity of cocaine she could ingest, and he felt she was obviously no amateur. (RT III 187-88). At trial, Antal admitted using cocaine on eight or nine prior occasions (and maybe two more occasions) but denied being a habitual user. (RT II 82, 137). On cross examination, Antal admitted living with a cocaine vendor (Freddie) who had no other occupation at that time. At trial, Slaughter attempted to introduce Robin Kenny's out-of-court statements to Mr. Herb Barrett, investigator for the Federal Public Defender, that Antal had, indeed, used cocaine on April 14, 1987 when she first met with Slaughter. The trial court refused to permit Barrett's testimony to be heard by the jury.

The next day, Antal called agent SSA Togliatti and reported what had happened. Togliatti told Antal to recontact Slaughter to see if she could buy cocaine from him (RT II 90) and Togliatti assured Antal that she would be paid for her work. (RT II 86). Due to an illness, several days passed before Antal could again contact Slaughter. On April 26, 1987 she called Slaughter at the Public Defender's office. (RT I 31; RT II 91; RT III 191). In a conversation which was tape recorded by the FBI, Antal asked Slaughter if she could "get something" from him to which he responded "no" on eleven separate occasions. (Tape recording, Ex. 4; RT II 91).

On April 28, 1987, Antal again called Slaughter and a meeting was arranged. Later that day, Antal, carrying a tape recorder, met Slaughter at Darci's Bar and Grill. During the conversation Antal brought up the possibility of getting some cocaine at the Prime Rib from "Richard." (TR BT April 28, 1987 22; Ex. 1). Thereafter, they went to a location where Antal obtained $200 in order to buy cocaine from Slaughter. ¹ They then proceeded to the Prime Rib Restaurant where Antal gave Slaughter the $200 in exchange for a gram of cocaine which Slaughter had obtained from "Ricardo." Antal subsequently turned the cocaine over to the FBI.

On April 30, 1987, Antal again met Slaughter at the Prime Rib Restaurant. (Ex. 2; TR BT April 30, 1987 p. 1). Antal brought up the subject of cocaine (Ex. 2) and Slaughter agreed to sell Antal an "eight-ball" ( 1/8 ounce) of cocaine for $250. Slaughter then went into the kitchen and returned. While the two were seated at the restaurant, Slaughter handed Antal a package of cocaine. (Ex. 2; TR BT April 30, 1987, p. 34).

On May 2, 1987, Antal had another conversation with Slaughter and invited him to her hotel suite for a party (Ex. 8). Slaughter refused and they agreed to meet him at the Prime Rib later that day. At the restaurant Antal told Slaughter she wanted to buy more cocaine. Slaughter sold Antal...