U.S. v. Spivey, 74-1140

Decision Date28 April 1975
Docket NumberNo. 74-1140,74-1140
Citation508 F.2d 146
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James C. SPIVEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Hugh A. Burns, Denver, Colo. (Pamela A. Ray and Dawson, Nagel, Sherman & Howard, Denver, Colo., on the brief), for defendant-appellant.

Arthur H. Bosworth, Asst. U.S. Atty., Denver, Colo. (James L. Treece, U.S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, * District Judge.

LEWIS, Chief Judge.

James C. Spivey was charged in a two-count indictment returned against him and another, with knowingly and intentionally distributing heroin in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Following a jury trial in the United States District Court for the District of Colorado, at which trial his sole defense was entrapment, Spivey was convicted on both counts and was sentenced to concurrent terms of six years' imprisonment on each count. Spivey now appeals from the resultant judgment, contending principally that the evidence established the defense of entrapment as a matter of law and that, in the event such defense was not so established and maintained, the conduct of a government informer was so outrageous as to be violative of the judicially-imposed doctrine requiring fundamental fairness in governmental activity in the detection and prosecution of crime. Some of the facts may be summarized, others require detail.

Leaving aside, for the moment, any consideration of the conduct of the informer, we conclude that the government firmly established its case. Government agents, introduced to defendant by the informer, made two separate buys of heroin from defendant, out of the presence of the informer and after negotiation with defendant. Defendant's present appellate claim must, therefore, be founded upon the informer's actions which preceded the sales, made on August 23 and 29, 1973, for which defendant now stands convicted.

Defendant first met the informer, Redman, in early August, 1973. Defendant had been released from prison in the spring of that year, having served a term for robbery 'to get drugs.' Redman was a paid and professional informer. He received $300 compensation in the case at bar and had participated in his 'profession' in at least one hundred cases during the preceding four years. Redman posed as a dealer in illegal drugs, living in and operating from an apartment in Denver, Colorado.

Soon after meeting Redman defendant moved into Redman's apartment, quit his job on August 18, and thereafter shared Redman's life style and purported 'generosities' in numerous ways. Defendant paid no rent and had free and ready access to quantities of marijuana that he used at will. Redman stated and testified that such marijuana (some seven ounces) was left with him by prospective sellers as samples. Redman also held several pot parties in the apartment with marijuana being furnished to defendant and to some neighbors. Redman actively hosted these parties in order to obtain the trust and confidence of defendant and others and to establish the pretense of being a dealer in drugs. Redman also supplied food to defendant and loaned him some money. Undoubtedly Redman's affirmative actions were successful in obtaining defendant's friendship and trust.

The role of the informer is indeed dirty business, but, as many before us have said, so too is heroin. And in this regard defendant is no innocent. The sources for heroin were defendant's own, and his predisposition to engage in drug activity was in no way forced.

Concentrating on the fact that the informer's possession and distribution of marijuana was unlawful, defendant now argues that Redman's conduct was so outrageous that the subsequent prosecution constitutes a violation of the principles of constitutional due process. Thus, defendant continues, the government should have been precluded from invoking the judicial process and obtaining defendant's conviction, and thus we must find that defendant was entrapped as a matter of law.

The same argument was made in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, in which the government's undercover agent had supplied Russell, the defendant, with a scarce chemical required for the defendant's manufacturing of methamphetamine, a controlled substance. The Court acknowledged generally the existence of such a defense and suggested that a proper case for its application would arise where the government's activity constituted a denial of "fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960).' 411 U.S. at 432, 93 S.Ct. at 1643. Significantly, the Court then referred to the peculiar law enforcement tactics necessitated by the nature of drug-related offenses, first noting that infiltration is a permissible means of investigation and then concluding that, because 'an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them', such tactics as culminated in Russell's prosecution did not violate the principles of constitutional due process. 411 U.S. at 432, 93 S.Ct. 1637.

In the instant case, defendant seeks to demonstrate such a violation of constitutional due process, and to distinguish his case from Russell, by characterizing Redman's conduct as itself unlawful. Specifically, defendant asserts that Redman violated both federal and state criminal statutes by possessing and distributing marijuana and that these violations by Redman were essential to his success in 'setting up' the heroin sales made by the defendant. Relying on the truth of these assertions, defendant contends that his constitutional defense must obtain. Although we cannot deny that Redman possessed and distributed marijuana and that such activity is unlawful, we do not agree that defendant's constitutional defense is thereby successfully made out.

The Court in Russell did indeed rely, in part, on the lawful nature of the government agent's activity in order to distinguish that case from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Mapp v. Ohio,367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and others in which official lawlessness became the sine qua non of the exclusionary rule, to which rule Russell referred without avail. 1 Nevertheless, Russell did not establish-- nor does it now require us to formulate-- a fixed rule that would preclude, for due process reasons, the prosecution of the defendant here because the government's informer engaged in unlawful conduct. See 411 U.S. at 431, 93 S.Ct. 1637. We find no occasion to consider whether the test set out in Russell should be completely recast, as defendant's argument would have us do, in terms solely of the lawfulness of the government's informer. Concededly, the nature of that conduct is relevant to the inquiry initiated here by defendant, but we do not believe that a review of the lawfulness of Redman's conduct can by itself answer whether the principles of due process have been violated. 2 Rather, we have considered the entire record before us, and we conclude that the government's conduct was not so outrageous that either the maintenance of the prosecution against the defendant or the resultant conviction violates the constitutional standard, announced in Russell, which requires that the government's conduct be tested against notions of fundamental fairness and the universal sense of justice. 411 U.S. at 432, 93 S.Ct. 1637.

Our discussion is not complete, however, without some comment on one additional aspect of the defendant's constitutional argument. We recognize that, under Russell, a positive test for 'outrageous conduct' is, by itself, reason enough for the reversal of a conviction notwithstanding that the defendant was predisposed, and notwithstanding that a criminal otherwise goes free. It is thus that Russell's constitutional standard protects the 'sense of justice' referred to in Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 96 L.Ed. 183 (Frankfurter, J.), and in Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (Hughes, C.J.). Yet it is clear also that, to be relevant at all, the government's conduct must be postured as connected in some way to the commission of the acts for which the defendant stands convicted. In cases decided since Russell, in which constitutional arguments have been raised similar to that here, this connection has been implicitly acknowledged by reference to the extent to which the government instigated, participated in, or was involved or enmeshed in, the criminal activity itself. 3 Thus, the more immediate the impact of the government's conduct upon the particular defendant, the more vigorously would be applied Russell's test for constitutional impropriety.

It is significant, then, that in its argument here the government has focused on the periods of time during which the defendant was alone with the government agents-- and during which he committed the acts for which he now stands convicted. It was then that he called his sources, negotiated price and quantity, gave directions, acted as intermediary, and offered to arrange future sales of both heroin and other drugs. This was the undisputed testimony of agents Castillo and VanArk. Redman contacted Castillo and introduced him to the defendant; Redman had VanArk contacted by another and spent 'three to five minutes' with him at the apartment. That was all. The defendant was then alone with Castillo for some part of over four hours, with VanArk for over one hour and twenty minutes. Neither Redman nor the agents threatened or coerced the defendant. There was no...

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