U.S. v. Stanley, 84-1542
| Decision Date | 05 July 1985 |
| Docket Number | No. 84-1542,84-1542 |
| Citation | 765 F.2d 1224 |
| Parties | 18 Fed. R. Evid. Serv. 738 UNITED STATES of America, Plaintiff-Appellee, v. Kim Allen STANLEY, John R. Spiczak, Evan N. Leake, Edward Lee Shorr, Russell Greenway, Stanley Dimich, and Clement James DeMatto, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Steven W. Ludwick, Atlanta, Ga., for Spiczak.
Robert H. Citronberg, Atlanta, Ga., for Shorr.
Thomas D. Glenn, Dallas, Tex., for Kim Stanley.
N.C. Deday LaRene, Deborah Paquette, Detroit, Mich., for Greenway and Dimich.
Gary A. Udashen, Dallas, Tex., for Leake and Dematto.
James A. Rolfe, U.S. Atty., Searcy L. Simpson, Jr., Asst. U.S. Atty., Dallas, Tex., for U.S.
Appeals from the United States District Court for the Northern District of Texas.
Before REAVLEY, JOHNSON, and HIGGINBOTHAM, Circuit Judges.
Kim Allen Stanley, Clement DeMatto, Russell Greenway, Stanley Dimich, Edward Shorr, John Spiczak, Evan Leake and Joel Hamm were charged in a twelve-count federal grand jury indictment with conspiracy to possess with intent to distribute marijuana (Count 1), carrying on a continuing criminal enterprise (Count 2), possession with intent to distribute marijuana (Count 3), interstate travel to promote the facilitation of an unlawful activity (Count 4), and using a telephone to facilitate a conspiracy to possess with intent to distribute marijuana (Counts 5-12), in violation of 21 U.S.C. Secs. 841(a)(1), 843(b), 846, 848; 18 U.S.C. Secs. 1952, 2. Defendant Hamm pleaded guilty to a one-count superseding information and received a suspended sentence, a $1,000 fine and was placed on five years' probation. At trial, the district court granted a judgment of acquittal on Count 2 of the indictment which charged Spiczak with engaging in a continuing criminal enterprise. A jury convicted the seven defendants who stood trial on all counts upon which they were charged. 1 Defendants' subsequent motions for judgments of acquittal were denied by the district court. Defendants appeal their convictions, arguing principally that: (1) outrageous conduct by the government violated their right to due process; (2) the district court erred in refusing to give certain of their requested jury instructions and certain other of the district court's jury instructions were inadequate; (3) the indictment was insufficient; and (4) the evidence was insufficient to sustain their convictions. We conclude that the evidence was insufficient to sustain Leake's convictions on all counts. In addition, we hold that the evidence was insufficient to sustain Greenway and Dimich's convictions on Count 4. Accordingly, we reverse Leake's convictions on Counts 1, 3 and 4 and Greenway and Dimich's convictions on Count 4. The district court's judgment is in all other respects affirmed.
In October 1983 Michael Flynn contacted agents of the Dallas, Texas, office of the United States Drug Enforcement Administration (DEA) and informed them that transactions involving large quantities of illegal drugs were being made in the Greenville Avenue area of Dallas. With Flynn's aid as an informant, the DEA initiated a reverse undercover operation (in which DEA agents posed as the sellers of illegal drugs) in order to ferret out illicit drug traffickers. Larry Hahn, the DEA Special Agent in charge of the operation, instructed Flynn to put the word out that a large quantity of marijuana was for sale.
Thereafter, Flynn approached Joel Hamm, a bartender at Gonzo's Restaurant in Dallas, and told Hamm that he had friends who were looking for buyers for 1,000 pounds of marijuana at $200 per pound. Flynn told Hamm that they could make $25,000 each in the deal. Hamm in turn telephoned Clement DeMatto to see if DeMatto would be interested in making a marijuana purchase of that volume. Following Hamm's telephone call, DeMatto, accompanied by his business partner 2 and roommate, Kim Allen Stanley, went to Gonzo's Restaurant to discuss the marijuana purchase with Hamm. At this meeting, DeMatto and Stanley told Hamm that they needed a sample of the marijuana before they would negotiate further. DeMatto and Stanley also told Hamm that they would contact someone they knew in Atlanta and then get back in touch with Hamm. At the conclusion of the meeting, DeMatto told Hamm to arrange a meeting with the sellers and to get a sample of the marijuana for DeMatto. Hamm later contacted Flynn and told Flynn that he had located some prospective buyers and that they wanted to set up a meeting with the sellers.
On December 15, 1983, Flynn, Hamm and Special Agent Hahn, who posed as the marijuana supplier, met at Gonzo's Restaurant. Hamm told Hahn that he knew two people who would be interested in purchasing not 1,000, but 2,000 pounds of marijuana. Hamm referred to one of the prospective customers as "Clem" and stated that Clem was a drug dealer in Dallas. The person referred to by Hamm as "Clem" was later identified as defendant Clement DeMatto.
Hamm and Flynn went to DeMatto's residence on December 17 to further discuss the marijuana purchase. After determining to his satisfaction that Flynn was not a police officer, DEA agent or Federal Bureau of Investigation (FBI) agent, 3 DeMatto indicated that the "bottom line is we need to get a sample." Record Vol. 12 at 565. Toward the end of this meeting, Stanley, who had been sleeping in another room, walked in on the discussion. After being introduced to Flynn, Stanley also indicated that they needed a sample of the marijuana.
On December 19, 1983, Agent Hahn and DeMatto met for the first time at a Bennigan's Restaurant in Dallas. Hamm was also present at this meeting. After asking some preliminary questions of Hahn to determine if Hahn was an undercover government agent, DeMatto stated that he had an associate in Florida who had plenty of money and wanted to purchase the marijuana, but that a sample of the marijuana was needed first. DeMatto also talked of his past experiences involving the purchase and sale of marijuana. At the conclusion of the meeting, DeMatto asked Hahn to arrange another meeting for DeMatto to see a marijuana sample.
A meeting for the exchange of the marijuana sample was arranged for December 22 at a Dallas nightclub. Upon meeting DeMatto at the club, Hahn was introduced to Stanley by DeMatto and the trio sat down together at a table. During the ensuing conversation DeMatto asked Hahn if he had brought the marijuana sample. Hahn answered in the affirmative and asked DeMatto to go outside with him in order for Hahn to make the exchange. Stanley remained in the nightclub. Once outside Hahn removed the marijuana sample from his jacket pocket and gave it to DeMatto. DeMatto examined the sample and said that it appeared to be of good quality. DeMatto then stated that he had called his financier in Florida and that he intended to take the sample to this associate of his.
On January 4, 1984, Hahn, DeMatto and Stanley met at the Dixie House Restaurant. DeMatto stated that he wanted to see the 2,000 pounds of marijuana before his Florida associate traveled to Dallas to make the purchase. Anticipating that DeMatto would want to see the marijuana, Hahn had taken color Polaroid photographs of the baled marijuana. Hahn then showed DeMatto and Stanley the photographs of the 2,000 pounds of marijuana with that day's newspaper held in front of the marijuana. Hahn told DeMatto and Stanley that the price of the marijuana was going up to $300 per pound because he had already sold the 2,000 pounds of Mexican marijuana that he had originally offered for sale, but that he had in a new shipment of Colombian marijuana. Because Colombian marijuana is of a better commercial grade than Mexican marijuana, the price was being raised. DeMatto and Stanley still expressed a willingness to deal, stating that $300 per pound was a reasonable price for good Colombian marijuana. Stanley also inquired into the possibility of purchasing as much as 4,000 pounds of the Colombian marijuana. Hahn agreed to knock $5 to $10 a pound off the price if they made a purchase that large.
The next day, Hahn again met with DeMatto and Stanley at the Dixie House Restaurant. Flynn was also present at this meeting. DeMatto told Hahn that his associate from Florida would be delayed in coming to Dallas because he was closing a marijuana deal in Miami. DeMatto also stated that he and his Florida associate had been transacting drug deals for over fourteen years and that he knew that his associate could provide the money to buy the 2,000 pounds of marijuana.
On January 10, DeMatto telephoned Hahn and informed him that "his [DeMatto's] man" would be arriving in Dallas later that same day. On that date, defendants John Spiczak and Edward Shorr flew from Memphis, Tennessee, to Dallas. Spiczak and Shorr registered in rooms 1724 and 1725, respectively, at the Westin Galleria Hotel.
The following day, January 11, Hahn and DEA Special Agent L.W. Alphin met with DeMatto, who introduced them to his "money man," Spiczak. DeMatto indicated that he and Spiczak wanted to see the marijuana. After Hahn said that only one of them would be allowed to view the marijuana, DeMatto said that Spiczak could go and that he would stay behind. Hahn and Alphin then drove Spiczak to a hangar at the Lancaster, Texas, Airport where Spiczak was permitted to view 50 bales of marijuana. On the return trip to meet with DeMatto, Spiczak told the agents that he already had $225,000 in the Dallas area and that when he got back to his hotel room he would start making some phone calls to get the balance of the money into Dallas. Spiczak also stated that he would get some drivers on the road to transport the marijuana.
On January 12, 1984, Agents Hahn and Alphin again met with DeMatto and Spiczak to further discuss the marijuana purchase. A purchase price of $560,000 for 1,868 pounds of marijuana was agreed upon by Hahn and Spiczak. Spiczak again stated...
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