U.S. v. Slaughter, 90-10543
| Decision Date | 27 February 1992 |
| Docket Number | No. 90-10543,90-10543 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff, Appellee, v. Ray Owen SLAUGHTER, Defendant, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CANBY and KOZINSKI, Circuit Judges, and CARROLL *, District Judge
Ray Owen Slaughter was convicted of one count of possession of a controlled substance and one count of distribution of a controlled substance, in violation of 21 U.S.C. §§ 844 and 841(a)(1). Slaughter appeals his conviction of distribution alleging that entrapment continued throughout the series of drug transactions in which he was involved and that the trial court improperly refused his requested jury instruction. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. 1
Appellant Slaughter became an investigator/polygraph examiner for the Clark County Public Defender in Nevada in 1974, and at the same time developed a private practice. Following his second divorce in 1981 or 1982, Slaughter became an alcoholic and later a cocaine addict.
In 1987, Supervisory Special Agent Togliatti was head of the White Collar Crime Squad in the Federal Bureau of Investigation's (FBI) Las Vegas office. Togliatti was involved in the relocation of Freddy Pellicone, an individual who was working as an undercover operative for the FBI in New York in order to reduce his charges for distribution of cocaine. Belinda Antal, Pellicone's girlfriend, had also worked for the FBI on Pellicone's behalf. The FBI decided to relocate Antal and Pellicone to Las Vegas in April of 1987 due to concerns for their safety.
Pellicone and Antal contacted the FBI on April 12, 1987, the day after their arrival in Las Vegas. In an interview with Antal that day, Togliatti discovered that Antal had previously frequented an establishment where Slaughter often went. Togliatti personally knew Slaughter and felt he "could be involved in the sale of cocaine", and requested that Antal contact Slaughter. Antal was not offered money at that time. The FBI did not request Pellicone's assistance.
The next day, Antal called Slaughter at his office. She told Slaughter that she had met him before and that she was back in town looking for a job. That evening they met at the Prime Rib Restaurant and Bar. Although Slaughter acknowledged her at the restaurant, he testified later that he did not recognize her. Antal was a tall, young woman, less than half Slaughter's age, whom Slaughter found to be provocatively dressed and "very attractive." They had drinks and discussed a waitress job opening of which Slaughter was aware.
Antal and Slaughter were joined by a woman named Robbin Kenny. After Slaughter and Kenny pooled their money, Slaughter went into the kitchen area of the restaurant. A man, introduced by Slaughter as Richard, came out of the kitchen and passed a package to Slaughter. Kenny first went into the restroom with the package; when she returned, Slaughter also took the package with him to the restroom.
Antal, Slaughter, and Kenny then drove to Slaughter's condominium. According to Slaughter, all three ingested cocaine. Based on the amount of cocaine Antal ingested, Slaughter felt she was "a heavy cocaine user." However, at trial Antal denied using cocaine on this occasion. She did testify that she had used cocaine "socially eight, nine, maybe more" times. Kenny stated in a taped conversation that Antal had used cocaine at this first meeting.
The next day, Antal telephone Togliatti and told him what had occurred. Antal then went to Togliatti's office where they discussed a full-scale investigation and how much money Antal would be paid. Antal testified that "Mr. Togliatti said that there could be no moneys, no money at all until the investigation fully got started." Togliatti testified he would have paid Antal whether or not it led to an investigation.
The first tape-recorded conversation occurred on April 26, 1987, when Antal called Slaughter. Antal made at least five requests that Slaughter obtain cocaine for her. Slaughter refused each request and said "no" nine or ten times.
Antal next telephoned Slaughter at his office on April 28, 1987. Equipped with a body tape recorder, Antal met Slaughter at Darci's Bar and Grill that afternoon, where Antal brought up the possibility of getting some cocaine from Richard. Antal apologized to Slaughter for bringing up the subject of cocaine; Slaughter responded that he did not want to talk about it over the phone. Later, Antal had Slaughter drive her to the Union Plaza where she obtained $200 from an agent to buy two grams of cocaine. They then drove to the Prime Rib, during which time Slaughter discussed the possibility of Antal moving in with him.
When they arrived at the Prime Rib, Antal gave Slaughter the $200. Slaughter purchased the cocaine from someone in the kitchen or office and returned to Antal. After giving her the cocaine, Antal allowed him to kiss her cheek. Their conversation contained provocative and sexually explicit topics.
Antal next called Slaughter on April 30, 1987. They agreed to meet at the Prime Rib; Slaughter asked Antal if this was a "date." At the Prime Rib, Antal told Slaughter she wanted an "eightball," or three and one-half grams of cocaine. Antal gave Slaughter $250, and Slaughter went to the kitchen. After Slaughter returned, Richard came over and handed Slaughter a package, who then handed it to Antal. During the conversation, Antal repeatedly suggested that Slaughter party with her and her girlfriends in her suite. This was a cover story so that Slaughter could be arrested in private. Antal later left the Prime Rib without Slaughter.
On May 1, 1987, Antal called Slaughter and asked him to "pick up something." Slaughter asked her if the only reason she wanted to be around him was for cocaine.
On May 2, Antal called Slaughter again. Slaughter declined another offer to her party but agreed to meet Antal at the Prime Rib that evening. While having drinks that evening, Antal asked Slaughter if she could get some cocaine. Slaughter mentioned that he was already picking up some cocaine for a waitress friend who worked at the Bavarian Chalet. Antal gave Slaughter $250 to purchase another eightball. After a visit to the kitchen, Slaughter handed a package of cocaine to Antal. Antal suggested that they meet later that evening at the Bavarian Chalet.
Later at the Bavarian Chalet, Slaughter told Antal that he delivered the cocaine to the waitress, who gave him some cocaine to make up for the money she was short. The FBI arrested Slaughter as he left the Bavarian Chalet.
Slaughter was charged with three counts of Distribution of a Controlled Substance in violation of 21 U.S.C. § 841(a)(1). The first trial was held between April 11 and April 15, 1988. The jury acquitted Slaughter on Count 1 (the April 28, 1987 transaction) and convicted him on Counts 2 and 3 (the April 30 and May 2, 1987 transactions, respectively).
Slaughter appealed his convictions. This Court reversed the convictions on both counts and remanded for retrial. United States v. Slaughter, 891 F.2d 691 (9th Cir.1989) (hereinafter, "Slaughter I "). This Court held that the trial court abused its discretion by refusing to admit the out-of-court taped statements of Robbin Kenny concerning her observation that Antal used cocaine. Id. at 697-98. This Court also held that the court should have given the jury instruction for continuing entrapment set forth in United States v. North, 746 F.2d 627, 629 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 832 (1985). Id. at 699-70.
The second trial occurred on October 1 to October 5, 1990. After the government rested its case, Slaughter moved for a Judgment of Acquittal, which was denied. The motion was renewed after both sides had rested and was denied by the trial court. The jury returned a verdict of guilty on the lesser-included offense of Count 1 of the Redacted Indictment (the April 30 transaction) for simple possession of a controlled substance, and a guilty verdict on Count 2 of the Redacted Indictment (the May 2 transaction) for distribution. Slaughter renewed his Motion for Judgment of Acquittal only as to Count 2 of the Redacted Indictment; this was denied. Slaughter filed a timely appeal to this Court. He is only appealing the conviction for distribution of a controlled substance.
In the retrial of this case, the trial judge determined that under principles of collateral estoppel, the effect of the acquittal for the April 28, 1987 transaction by the first jury meant that the jury had found that the defendant was entrapped by the government. The jury was instructed that, "as a matter of law, the defendant Ray Owen Slaughter, was entrapped with respect to the distribution of cocaine on April 28, 1987." Slaughter argues that his initial entrapment continued to the subsequent transactions as a matter of law.
Whether the undisputed facts establish entrapment as a matter of law is reviewed de novo as a question of law. United States v. Smith, 802 F.2d 1119, 1125 (9th Cir.1986).
Slaughter attempts to find support in North, in which this Court found that whether the initial entrapment had extended through the later transactions "was a question of fact that the instruction properly left to the jury." North, 746 F.2d at 630. This Court pointed to various factors supporting its conclusion that continuing entrapment was a jury question: the amount of time which had passed since the initial transaction, the lack of contact with the government informant, the lack of alleged threats, and...
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