U.S. v. Van Slyke, 91-3807

• Decision Date: 17 November 1992
• Docket Number: No. 91-3807,91-3807
• Citation: 976 F.2d 1159
• Parties: UNITED STATES of America, Appellee, v. Paul Mark VAN SLYKE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1159

976 F.2d 1159

UNITED STATES of America, Appellee, v. Paul Mark VAN SLYKE, Appellant.

No. 91-3807.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1992.

Decided Oct. 5, 1992.

Rehearing and Suggestion for Rehearing

En Banc Denied Nov. 17, 1992.

Peter B. Wold, Minneapolis, Minn., argued, for appellant.

Michael W. Ward, Asst. U.S. Atty., Minneapolis, Minn., argued, for appellee.

Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HENLEY, Senior Circuit Judge.

Paul Mark Van Slyke appeals from a judgment of the district court ¹ entered upon a jury verdict finding him guilty of one count of distributing marijuana in violation of 21 U.S.C. § 841(a). We affirm.

James Frye worked as an undercover agent at the Minneapolis, Minnesota post office. His instructions were to associate with drug users and dealers and report his associations back to the postal inspectors. The government's version of the events is as follows. In late December 1989 or early January 1990 Frye met Van Slyke, who worked at the post office, at a nightclub frequented by postal employees. Frye and Van Slyke played pool and drank beer together. They also discussed their drug use. On May 10, 1990 Frye asked Van Slyke if he could obtain cocaine, and Van Slyke responded that he would see what he could do. On the next day Van Slyke sold him one-half gram of cocaine. The alleged transaction, however, was not recorded on audio or video tape.

Frye then asked Van Slyke if he could obtain more cocaine. Van Slyke responded that he probably would have trouble getting more cocaine, but probably could get some marijuana. In June 1990 Van Slyke arranged for Frye to buy a quarter ounce of marijuana on the nightclub's parking lot from a man named "Michael."

Between June and December 1990, Frye had frequent contact with Van Slyke and asked to buy marijuana from Van Slyke a few times. On December 30 Frye told Van Slyke he was looking for some more marijuana and that he had buyers who would pay "high dollar." On December 31 Van Slyke sold Frye approximately twenty-five grams of marijuana. He told Frye it was "good stuff," with no "sticks." When Frye asked if there was "any chance of getting more" if he sold the marijuana, Van Slyke responded that his source had more of the same kind of marijuana, but would have a better quality of marijuana in a few days. Van Slyke, however, informed Frye the sale was short a couple of grams, but that Van Slyke could make each bag a gram lighter.

On Friday, January 25, 1991, Van Slyke agreed to sell Frye more marijuana, but failed to arrive at the designated time and place. Later in the day, the following conversation took place:

Frye: You've ... [messed] up my whole break, sitting in the ... lobby.

Van Slyke: I'm sorry.

Frye: What's going on?

Van Slyke: I missed the guy, too.

Frye: You missed him?

* * * * * *

Frye: So when are you gonna do it. Monday or what?

Van Slyke: Ah, tomorrow.

Frye: Tommorrow, ... I might find something else tonight, because I'll take it Monday if you want to.

Van Slyke: Alright.

Frye: I gotta go look for something else.

Van Slyke: I'll get it ahead of time.

Frye: None of this sitting on the job.

Van Slyke obtained the marijuana and was able to deliver it on Monday, January 28, as agreed. A tape recording of the transaction reveals the following:

Frye: ... Ya got three quarters here?

Van Slyke: No, its a half and a quarter.

Frye: Half and a quarter? Uh, doesn't look too bad. Do these weigh, Paul?

Van Slyke: It should.

Frye: Okay.

Van Slyke: ... went faster than hell though.

Frye: It did huh?

Van Slyke: Two pounds. He's got more coming though.

Frye: Does he? Okay. Well yeah, maybe I'll try to get an ounce you know next time I'll get a full ounce.

Van Slyke: Yeah, or maybe even a quarter pound.

Frye: Yeah, that'd be, sounds good.

Van Slyke: Get a little better deal.

Frye: One

Van Slyke: Make yourself

Frye: Two

Van Slyke: some more money, ya know?

* * * * * *

Frye: Yeah, just don't stand me up like the last time or I'll kill you man.

Van Slyke: Yeah, I got hung up that's all.

Frye: Yeah, all right I just got written up for it you know.

Frye testified that after this transaction Van Slyke repeatedly contacted him about buying more marijuana and on February 19 sold him marijuana.

Van Slyke testified in his defense. He denied selling the cocaine in May 1990. He, however, admitted using marijuana and selling marijuana to Frye on December 31, January 28, and February 19. He testified that Frye had asked him at least once a week to buy marijuana. He explained that he finally agreed to sell marijuana on December 31 as a favor because Frye had bought him beers and "said he really needed something for a party." Van Slyke stated that although he had agreed to sell marijuana to Frye on January 25, he did not show up because he no longer wanted to be involved with Frye. Van Slyke claimed he made the sale on January 28 only after Frye had threatened to kill him because he failed to deliver on January 25. Van Slyke also stated he believed he was supplying marijuana for Frye's personal use and asserted he had not profited from the sales.

Van Slyke was indicted for the May 1990 cocaine sale (Count 1), the December 31 marijuana sale (Count 2), and the January 28 marijuana sale (Count 3). The district court instructed the jury on entrapment. During deliberations, the jury sent several notes to the court, including a note inquiring whether "for Counts 2 and 3 do we need to see entrapment individually or do we need to see entrapment only on Count 2 and will it also cover Count 3"? The court responded by giving a supplemental instruction which informed the jury that it could find Van Slyke was entrapped "in the first instance and therefore all criminal acts following were subject of the initial entrapment," or could find "that there was entrapment as to some of the acts, but no entrapment as to other acts." The instruction was based on United States v. North, 746 F.2d 627, 630 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 832 (1985), in which the Ninth Circuit held that an "initial entrapment, assuming it existed, did not immunize [a defendant] from criminal liability for subsequent transactions that he readily and willingly undertook." See also United States v. Dougherty, 810 F.2d 763, 769 (8th Cir.1987) (" 'no per se rule ... provides that the taint of the first entrapment requires judgments of acquittal as to all subsequent transactions' ") (quoting United States v. Fields, 689 F.2d 122, 125-26 (7th Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 573, 74 L.Ed.2d 935 (1982)); United States v. Wells, 506 F.2d 924, 925-26 (5th Cir.1975) (same).

The jury acquitted Van Slyke of the cocaine charge and of the December 31 marijuana sale, but found him guilty of the January 28 sale. The court sentenced Van Slyke to two years probation.

On appeal Van Slyke argues that the not-guilty verdict on Count 2 was inconsistent with the guilty verdict on Count 3. He reasons that the jury must have found that he was entrapped as to Count 2, and that, as a matter of law, this court should find that he was entrapped as to Count 3. We refuse to do so.

Van Slyke acknowledges that in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the Supreme Court reaffirmed the rule announced in Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), that "[c]onsistency in the verdict is not necessary." In Dunn, the Supreme Court explained that "either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." Id. (quotation omitted). The Court believed that the acquittal might have been the product of leniency. Id.

Van Slyke argues this case should be an exception to Dunn, because the jury notes suggest that the inconsistent verdicts were not a product of lenity but of error. Van Slyke, however, ignores that in Powell the Supreme Court expressly rejected "as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them." 469 U.S. at 66, 105 S.Ct. at 477. The Court explained that "[s]uch an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake." Id. The Court believed that defendants were "afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." Id. at 67, 105 S.Ct. at 477.

Applying the rationale of Powell, this court in United States v. Dougherty, 810 F.2d at 769, rejected an argument made similar to the one here. In Dougherty, a defendant, who had argued entrapment, was acquitted of one count of unlawful purchase of food stamps, but convicted on subsequent counts. This court stated "as long as the evidence was sufficient to support the counts on which the defendant was actually convicted, a jury verdict reflecting compromise or even inconsistency is permissible and legitimate." Id. (quoting United States v. Fields, 689 F.2d at 125-26). Similarly, in United States v. Williams, 923 F.2d 115, 116 (8th Cir.1991), this court held that an acquittal on conspiracy did not preclude a conviction on attempt where entrapment was the sole defense.

Moreover, despite the jury's notes, we are unpersuaded by Van Slyke's contention that the jury's verdict of acquittal on Count 2 was not the product of leniency. "The affirmative defense of entrapment has 'two related elements: government inducement of the crime, and [the defendant's] lack of predisposition ... to engage in the criminal conduct.' " United States v....