U.S. v. Thomas

• Decision Date: 09 February 1978
• Docket Number: No. 77-5136,77-5136
• Citation: 567 F.2d 638
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benton Franklin THOMAS and Joseph Thomas Oliveti, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 638

567 F.2d 638

UNITED STATES of America, Plaintiff-Appellee, v. Benton Franklin THOMAS and Joseph Thomas Oliveti Defendants-Appellants.

No. 77-5136.

United States Court of Appeals Fifth Circuit.

Feb. 9, 1978.

Rehearing and Rehearing En Banc Denied March 8, 1978.

Kerry J. Nahoom, Fort Lauderdale, Fla., for Thomas.

P. D. Aiken, Fort Lauderdale, Fla., for Oliveti.

Jack V. Eskenazi, U. S. Atty., Karen L. Atkinson, Asst. U. S. Atty., Jon A. Sale, Asst. U. S. Atty., Chief, Criminal Division, Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before COLEMAN, HILL, and RUBIN, Circuit Judges.

COLEMAN, Circuit Judge.

Along with Jacob Cochran, ¹ Benton Franklin Thomas and Joseph Thomas Oliveti were charged in a one-count indictment with knowingly and intentionally conspiring to import into the United States cocaine and marijuana in violation of 21 U.S.C.A. § 963. After being found guilty in a trial by jury, Thomas was sentenced to one year in prison and three years on special parole while Oliveti was sentenced to six months in prison and three years special parole. They appeal.

The defendants argue that the trial court committed reversible error in that it (1) admitted hearsay statements before a prima facie case of conspiracy was established and the evidence, as a matter of law, was insufficient to prove conspiracy; (2) the federal agents acted in such an outrageous manner as to deny the defendants due process; (3) the trial court erred when it refused to instruct the jury regarding predisposition of the defendants when federal agents acted in an allegedly outrageous manner; (4) the trial court erred in denying a motion for acquittal based on entrapment as a matter of law; (5) the trial court erred in giving a modified "Allen charge" to the jury when it had deliberated less than two hours; (6) the trial court failed to declare a mistrial after the prosecuting attorney made several allegedly prejudicial comments; and (7) the trial court erred when it failed to dismiss the indictment because the prosecuting attorney failed to present the grand jury with exculpatory evidence in her possession.

After reviewing the applicable law, and the evidence in the light most favorable to the government, Glasser v. United States 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we affirm the convictions.

I. FACTS

This conspiracy prosecution was based almost in its entirety upon conversations the defendants had with undercover Drug Enforcement Administration ("DEA") agents. The agents met with Thomas more than fourteen times and with Oliveti twice, but they never purchased, confiscated or saw any narcotics. Other than an agreement that sometime in the future the defendants would import some cocaine no act of illegality was established.

From January through early June, 1976, Thomas met with the DEA agents on several occasions to discuss narcotics transactions. In these meetings, Thomas boasted in rather incredible detail about organizations he belonged to and how he could smuggle drugs into the United States, but these meetings produced no narcotics. At one point, Thomas agreed to deliver several "kilos" of cocaine to the agents for a specified price. He later reneged on the deal, claiming that the boat containing the narcotics had been confiscated by Colombian officials. Throughout the sequence of meetings, Thomas made representations about delivery of cocaine and how he could bring it into the United States when he brought in a shipment of marijuana but no delivery was ever made. During these meetings Thomas repeatedly asked the agents to advance him money so he could make a delivery but the agents never advanced any.

There were several pieces of "tangible" evidence the agents collected during these early meetings with Thomas. He was the manager of a flying service and did have access to aircraft. At one meeting Thomas gave the agents the business card of an alleged Honduran narcotics contact, who was a public official in that country. He also warned the agents to avoid a man named "Kiki", who, he said, was an informer for the DEA. The undercover agents knew that "Kiki" was an informer so they concluded that Thomas had some sophistication in the narcotics trade or he would not have had this information.

In an April, 1976, meeting Thomas told the agents he was going to Honduras to arrange a sale and gave them the name and telephone numbers of his contact there. At trial the government presented no direct evidence that Thomas actually made the trip but it did introduce an airline ticket issued to "B. F. Thomas" for Honduras. The ticket was issued the day before Thomas told the agents of his intended trip and was used by someone two days after the meeting with the agents. However, there was no direct proof that Thomas, the talker, and Thomas, the ticket holder, were in fact one and the same person.

In June, 1976, the DEA agents met with Thomas and alleged co-conspirator Jacob Cochran. At that meeting Thomas and Cochran tried to sell the agents pills which were purported to be amphetamines. The agents took a sample and, after laboratory analysis, discovered that they were antihistamines, common cold tablets. The agents told Thomas of their discovery and cancelled any further deal for the tablets.

In July, 1976, defendant Thomas, defendant Oliveti, and Jacob Cochran twice met with agents to arrange the importation of cocaine. In the presence of the other alleged conspirators, Oliveti stated he knew of the agreement and was capable of obtaining transportation for the shipment. (Tr. 344). Oliveti asked questions about the size of the airfield to be used in Colombia, the availability of fuel, and the time that an airplane would have to remain on the ground.

A final meeting was held in early August with the agents, Thomas, and Cochran. Expense money was requested (but none was given) and a tentative commission for smuggling the cocaine was agreed on. Cochran gave the agents a written breakdown of the costs. After three weeks nothing more had happened, whereupon the defendants-appellants and Cochran were indicted for conspiracy and arrested.

In summary, we look upon this as a most unusual case. There were many meetings and much talk a lot of smoke and no fire. The indictment alleged various overt acts as having taken place in furtherance of the conspiracy, but these consisted solely of the meetings, in which the talk took place. It would appear that in drafting the indictment the prosecutor was proceeding under 18 U.S.C. § 371, which does require an "act to effect the object of the conspiracy". The defendants, however, were not indicted under that statute but, instead, were charged, as the indictment recited, under 21 U.S.C. § 963, ² a section which prescribes no such requirement, see United States v. Palacious, 5 Cir. 1977, 556 F.2d 1359, 1364, n. 9; United States v. Beasley, 5 Cir. 1975, 519 F.2d 233, 247, vacated and remanded on other grounds, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201 (1976) (no overt act was required under the conspiracy to distribute statute, 21 U.S.C. § 846, which is similar to the conspiracy to import narcotics statute used here, 21 U.S.C. § 963); United States v. Bermudez, 2 Cir. 1975, 526 F.2d 89, 94 (no overt act required for conviction under 21 U.S.C. § 846). The trial court instructed the jury that they must find that an overt act had been committed by one of the conspirators. (Tr. 460). We can easily understand why it did so because several Fifth Circuit cases have proceeded under the assumption that 21 U.S.C. § 963 or its sister statute, dealing with conspiracy to distribute, 21 U.S.C. § 846, requires that overt acts be alleged and proved. See United States v. Bright, 5 Cir. 1977, 550 F.2d 240, 241; United States v. Seelig, 5 Cir. 1974, 498 F.2d 109, 112, and United States v. Toombs, 5 Cir. 1974, 497 F.2d 88, 94. In fact, this instruction placed a greater burden on the government than it was required to shoulder and thus inured to the advantage of the defendants rather than their prejudice.

A thorough analysis of the trial record convinces us that there was an abundance of evidence from which a jury could believe beyond a reasonable doubt that the defendants did indeed unlawfully conspire although they may have taken no action to execute the conspiracy, see United States v. Johnson, 5 Cir. 1974, 496 F.2d 1131.

II. POLICE CONDUCT

Next, the defendants argue that an offer by the DEA agents during the course of the conspiracy to supply an airplane and crew at one time and the name of a foreign supplier of cocaine at another was police conduct so outrageous that it violated their Fifth Amendment rights to due process. Further, they contend that this violation would bar their prosecution or, in the alternative, require the trial court to instruct the jury that if they found the police conduct was outrageous it would avoid their predisposition to conspire.

The defendants cite Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), and United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) but we are of the opinion that these cases militate against defendants' position.

In Hampton, the Supreme Court held that a criminal defendant should not be automatically acquitted simply because the narcotics he sold were supplied by a government agent. In Russell, a government agent provided an ingredient necessary to manufacture an illegal drug. The Court held that the agent's participation in the criminal activity was not of such an intolerable degree as to bar prosecution.

A reading of those cases reveals that government agents in both Russell and Hampton actually participated or provided a necessary element of the crime. The Supreme Court held in Russell and Hampton that the government agents' actions did not bar conviction. Here, we have DEA agents who only offered aid but...