U.S. v. Smith, s. 89-30309

Decision Date24 January 1991
Docket NumberNos. 89-30309,s. 89-30309
Citation924 F.2d 889
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Brent Eugene SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roberto Osegueya MARTINEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Leroy POPP, Jr., Defendant-Appellant. to 89-30311.
CourtU.S. Court of Appeals — Ninth Circuit

Richard D. Ness, Ronald D. Ness and Associates, Port Orchard, Wash., for defendant-appellant Smith.

Thomas W. Hillier, II, Federal Public Defender, Seattle, Wash., for defendant-appellant Martinez.

Judith M. Mandel, Mandel, Salmon & Stone, Gig Harbor, Wash., for defendant-appellant Popp.

Kenneth G. Bell, Asst. U.S. Atty., Tacoma, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before HUG, NELSON and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

In this consolidated criminal appeal, several codefendants appeal their convictions of various crimes relating to a drug conspiracy. We affirm the conviction, but vacate a part of the sentence.

STATEMENT OF FACTS

On December 1, 1988, two weeks after a cocaine overdose, appellant Richard Leroy Popp, ("Popp"), then eighteen years old, entered Plaza Hall, a twenty-eight-day in-patient drug treatment facility in Tacoma, Washington. Popp remained at Plaza Hall Treatment Center until December 29, 1988. While in in-patient treatment, Popp met Todd Lofto ("Lofto"), a fellow patient, who claimed to be a rock singer. Lofto and Popp became friends and while in treatment together, frequently discussed drugs and the distribution of drugs. According to Popp's testimony at trial, he was not a dealer in cocaine; Popp participated in these discussions and exaggerated his knowledge of drug dealing only in an effort to make Lofto like him.

In late December of 1988, Lofto contacted Drug Enforcement Administration Special Agent Greg Gassett ("Agent Gassett") offering to act as an informant. The DEA told Lofto he might receive payment for his work as an informant, and in early January Lofto was debriefed and signed up.

According to Popp, Lofto asked Popp in January about whether he could arrange cocaine deals; Popp claims he replied that he could not, because he did not know anyone. In January Lofto introduced Popp to Agent Gassett as a person who could arrange large cocaine deliveries, the purpose of the meeting being to arrange a one-kilogram purchase of cocaine. Agent Gassett knew that Popp had been in a drug treatment program with Lofto. According to Popp, Lofto told Popp to pretend that some kind of a deal was going to go through, and Popp agreed to help Agent Gassett purchase some cocaine. According to the Government, the deal broke down because Popp's dealer refused to participate.

Lofto continued asking Popp to try to find a connection for Agent Gassett and himself. Popp claims that Lofto promised him money and a place to live, and that Lofto got angry when Popp tried to back out. Popp also claims that he was reluctant, but continued to talk with Agent Gassett to please Lofto and did attempt to put together a deal. According to the Government, Popp made five separate attempts to arrange the cocaine transaction, the last of which resulted in his arrest.

On March 13, 1989, Brent Smith contacted Agent Gassett at a number Agent Gassett had previously supplied to Popp. In this taped conversation, Smith told Agent Gassett that he and Popp could arrange for the delivery of one kilogram of cocaine from Popp's hairdresser "Todd," later identified as Todd Renstrom ("Renstrom"), whom Popp had spoken with. Popp's name was mentioned throughout the call. Popp claims that he was promised money for helping arrange the deal and was later promised some cocaine.

The following day, March 14, 1989, Agent Gassett spoke with Popp in the morning and again in the afternoon. In these taped conversations, Popp confirmed that the deal could take place and gave Agent Gassett the pager number of "Mike," later identified as defendant Michael Kancianich ("Kancianich"), who was to be Agent Gassett's cocaine source.

That evening, Agent Gassett contacted Kancianich at a second number left on Agent Gassett's pager in reply to his call to the first number. Agent Gassett and Kancianich negotiated the cocaine transaction; Kancianich stated that he wanted Renstrom, not Popp, at the delivery. The delivery was set for 7:30 p.m. in the restaurant/coffee shop of the Executive Inn in Fife, Washington. Popp's name was repeatedly mentioned in these calls. Agent Gassett then contacted Popp, and told him of Kancianich's desire to have Renstrom, not Popp, at the delivery, and to contact Kancianich.

Agent Gassett then contacted Kancianich, and told Kancianich that he had reached Popp, that Popp would call Kancianich, and that Popp would arrange for Renstrom to be present at the delivery. Gassett and Kancianich then further negotiated the price. Popp's name was repeatedly mentioned during this call. Agent Gassett then again contacted Popp after Popp had spoken with Kancianich, and Popp told Agent Gassett that he had spoken with Kancianich and everything was set. Agent Gassett and Popp then discussed testing the cocaine for purity and the price.

On March 15, 1989 Agent Gassett contacted Renstrom. Agent Gassett and Renstrom finalized arrangements for the cocaine purchase that evening: Renstrom was to meet Kancianich at 6:30 p.m. and together they would meet Agent Gassett at the Executive Inn restaurant/bar at 7:30 p.m. Popp's name was mentioned repeatedly during this call.

Agent Gassett arrived at the lounge at the designated time and observed two individuals involved in suspicious activity which he believed to be counter-surveillance. The two were later identified as Carl Kerns ("Kerns") and Thomas Wusterbarth ("Wusterbarth"). Agent Gassett ultimately made contact with Renstrom, who invited him out to the parking lot to a car where the transaction would take place.

Kancianich met Renstrom and Agent Gassett at Renstrom's car. Inside the car, the cocaine was shown to Agent Gassett. There was one kilogram of cocaine. A signal was given, and Kancianich and Renstrom were arrested. At the time of his arrest, Kancianich was armed with a gun. In addition, a loaded handgun was found in the glove compartment of the car.

Kerns and Wusterbarth were also arrested at the scene based upon the observations of Gassett. Following arrest, Kerns admitted to being the source of Kancianich's cocaine. He consented to a search of his house where another kilogram of cocaine and $46,000 were discovered. (Count 9). He agreed to place a phone call to Martinez. The two agreed to meet in a parking lot, presumably where Kerns would give Martinez money for the cocaine. Martinez arrived at the parking lot at the designated time and was arrested. His pager was seized.

After these arrests, Agent Gassett called Smith and Popp, suggesting that they meet him to obtain some of the cocaine he had "received." Upon their arrival, Popp entered the restaurant and was arrested. According to the Government, at the arrest Popp stated that he had assisted Agent Gassett by introducing him to cocaine dealers in an effort to become a "big time drug dealer." Smith was arrested outside in the vehicle that he was driving. Agent Gassett previously had communicated with defendant Smith ("Smith") during a phone call on March 13th, when Agent Gassett returned a call as a result of a telephone page. A tape recording of that phone call of March 13, 1989 was entered into evidence at trial.

On April 14, 1989, the Grand Jury for the Western District of Washington returned a multi-count indictment. The indictment charged Martinez, Popp, Smith and others with drug and gun violations. Four of the charged defendants reached plea agreements before the trial date.

On May 19, 1989 Popp filed a motion for disclosure of the identification and whereabouts of Lofto, the informant. The Government agreed to provide pretrial access, but due to the arrest of Lofto on unrelated charges, this became impossible. Popp's counsel was notified, and counsel interviewed Lofto at his place of confinement.

On July 13, 1989 Popp filed a motion to dismiss the indictment, alleging that the Government violated his right to due process by engaging in outrageous conduct. On July 18, 1989, trial for Martinez, Popp, and Smith began. Popp filed an Application for Writ of Habeas Corpus Ad Testificandum as to Lofto, who was incarcerated in a state institution within the district court's territorial jurisdiction, contending that Lofto was necessary both at the hearing on Popp's motion to dismiss based on Government misconduct and at trial to supply information relevant to his entrapment defense. Following argument the trial court denied Popp's motion to dismiss.

On July 19, 1989 the trial court denied Popp's application for the writ and the prosecution commenced its case. Following the prosecution's case, Popp renewed his motion to dismiss and application for writ of habeas corpus ad testificandum; both were denied. In Popp's trial defense Popp's girlfriend, Tina Campbell, testified that Lofto dominated Popp and that Lofto called Popp almost daily from January through March of 1989. Popp also testified on his own behalf. During the trial Popp requested an entrapment instruction, which the trial judge refused; Popp excepted to the court's failure to instruct the jury on entrapment and excepted to the court's instruction (the Government's Proposed Instruction No. 10) on the use of undercover agents.

On July 25, 1989, the jury returned verdicts of guilty against defendants Martinez, Popp, and Smith on all counts in which they were named.

ANALYSIS
I. SUFFICIENCY OF EVIDENCE SUPPORTING SMITH'S CONVICTIONS.

On July 25, 1989, the jury found Smith guilty of:

Count 1 Conspiracy to Distribute 500 Grams or...

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