U.S. v. Wertz, s. 79-5276

• Citation: 625 F.2d 1128
• Decision Date: 02 July 1980
• Docket Number: Nos. 79-5276,79-5277 and 79-5332,s. 79-5276
• Parties: UNITED STATES of America, Appellee, v. Guy Stephen WERTZ, Appellant. UNITED STATES of America, Appellee, v. George William VAUGHN, Appellant. UNITED STATES of America, Appellee, v. Thomas Jefferson CLYBURN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1128

625 F.2d 1128

UNITED STATES of America, Appellee, v. Guy Stephen WERTZ, Appellant.

UNITED STATES of America, Appellee, v. George William VAUGHN, Appellant.

UNITED STATES of America, Appellee, v. Thomas Jefferson CLYBURN, Appellant.

Nos. 79-5276, 79-5277 and 79-5332.

United States Court of Appeals, Fourth Circuit.

Argued April 9, 1980.

Decided July 2, 1980.

O. W. Bannister, Jr., Greenville, S.C., for appellant in No. 79-5276.

Will T. Dunn, Jr., Greenville, S.C., for appellant in No. 79-5277.

Charles V. Bell and Donald James Sampson, Greenville, S.C., on brief, for appellant in No. 79-5332.

William A. Coates, Asst. U.S. Atty., Greenville, S.C. (Thomas E. Lydon, Jr., U.S. Atty., Greenville, S.C., on brief), for appellee.

Before RUSSELL, WIDENER and PHILLIPS, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

After trial and conviction under a narcotics charge, but prior to sentencing, counsel for the defendants orally moved the district court, for a new trial on the ground that certain testimony should have been suppressed, and alleged that the motion could not have been timely made under provisions of Rule 12(b)(3) because of lack of knowledge that the facts would reveal those matters disclosed at the trial. The motion was denied by the district court and this appeal followed. We affirm.

The facts leading to this prosecution are unusual to say the least. And they are made more so by the scantiness of the record itself. The parties apparently felt a need to have transcribed only that part of the trial record which involved directly the issues on appeal. The testimony of the witness characterized by the defendants as the key figure in the prosecution, Billie Sue Arrowood, was not transcribed, though, the jury arguments, as well as the opening statements of counsel, have been transcribed and included in the record. Neither was the testimony of the informer, assuming he testified (which is not clear) transcribed despite the importance of that testimony on the merits of the prosecution. We are accordingly largely dependent on this incomplete record for the theory of both the prosecution and the defense. It can only be assumed that counsel determined on the basis of the full record at trial that the evidence was sufficient to require the submission of the issue of guilt to the jury and that the sole possible basis for error was the admission of an alleged confession. This challenged admission arose out of a narcotics investigation by agents of the Drug Enforcement Administration centered in the Spartanburg, South Carolina, area. It began with the detailing of a narcotics undercover agent to that area in September 1978.

After he arrived in Spartanburg, the undercover agent, Rousseau, was put in touch with an informer, Rusty. Through Rusty he made contact with the defendants Wertz and Vaughn, whom Rusty identified as individuals he knew to be illegal drug dealers. As a result of this information Rousseau agreed with these two defendants to purchase from them half an ounce of heroin for a price later agreed to be $1,300.00. Rousseau, accompanied by Rusty, drove to a motel on the edge of Spartanburg, where he was to meet the defendants. When the agent arrived at the appointed place the defendants Wertz and Vaughn met him and told him that they would have to go to another spot to make contact with the defendants' sources.

Riding in the agent's car, the party, composed of Rousseau, Rusty, Wertz and Vaughn, began at this time an automobile trip under the direction of Wertz and Vaughn presumably to the home of the source. The trip ended at the mobile home of the defendant Clyburn in Rutherfordton, North Carolina. After some conversation with Clyburn, Wertz and Vaughn said that they had to meet the source without the agent or Rusty. They accordingly departed in Clyburn's car for the purpose of meeting the source and picking up the heroin, leaving the undercover agent and Rusty with Clyburn and his wife. A short time later, Wertz telephoned Rusty at Clyburn's trailer, but talked to the agent, expressing suspicion that the agent was an undercover police officer. Apparently satisfied, for the moment at least, with the agent's answers, the defendants indicated they were returning with the heroin.

When Wertz and Vaughn did return after an interval of about two hours, however, it was obvious that they were not entirely satisfied that the agent was not a police officer. They had noticed the decal on the car the agent was driving, and they interrogated him at some length about how he got the car, and for whom he worked. They proceeded to search him, to examine his personal effects, such as his driver's license, and to check whether he was "wired." They seemed reassured by their search and proceeded to show the agent what they said was a half ounce of heroin, demanding at the same time the agreed price. The agent had Rusty, a long-time addict, examine the product; Rusty confirmed it as heroin. According to Vaughn, Rousseau thereupon gave them the agreed price, though Vaughn "ke(pt) the package (of heroin, as the Government contends, or of milk sugar, as the defendants contend) until (they) got back to South Carolina." ¹

The agent, Rusty, Wertz, and Vaughn returned to Spartanburg with Vaughn driving the agent's car. Wertz and Vaughn expressed some concern that they might be followed and Vaughn traveled a round-about way, using little used roads, on the return. When they reached the motel where they had met initially in Spartanburg, Wertz and Vaughn got out of the agent's car, gave the agent a package purportedly containing the heroin, and drove off in their car with the understanding that they would meet back with the agent and Rusty at Rusty's house. Wertz and Vaughn proceeded to a place called "Williams Grill" and "'laundered" (or converted) the money given them by the agent. ² The agent and Rusty in turn drove to Rusty's house, where the agent, in the presence of Rusty and Rusty's girl friend Billie Sue with whom he was living, made a field test of the contents of the package. As a result of this test he concluded that he had been given not heroin, but milk sugar.

The agent recognized that it was likely he had been "ripped-off." Wertz and Vaughn had his $1,300, and all it appeared that he had was milk sugar. The agent was uncertain how the "rip-off" had been managed. He entertained apparently some question whether Rusty was involved. Because of these suspicions of Rusty, Rousseau first ordered strict surveillance on a round-the-clock basis of Rusty's house, presumably in order to determine whether Vaughn and Wertz visited Rusty's house, and what they did, if either or both did visit Rusty's house. He next visited the local police headquarters, where he verified that the package given him contained only milk sugar. He took Rusty and began a search for Wertz or Vaughn. The agent drove to the neighborhood where Vaughn lived and began to check various spots Vaughn was likely to be seen. While he was in the parking lot of a convenience store in the neighborhood where Vaughn lived, he saw Vaughn drive up in a Cadillac automobile accompanied by a female companion. It was at this point that the sequence of events giving rise to the motion which is the basis of this appeal occurred.

Bitter that he had been mulcted out of $1,300 and no doubt embarrassed by the thought that he would have to report to his superiors how he had been duped by the defendants, Rousseau rushed over to the car where Vaughn was and, using some loud, obscene language, declared he had been "ripped-off." He demanded either the heroin or the return of the $1,300. Vaughn denied any knowledge of a "rip-off." Rousseau, obviously indignant at this disclaimer, renewed his demand, drawing his revolver. Vaughn proceeded to get out of his car, faced Rousseau, and gave him a "shove." The two also began to argue. Vaughn twitted Rousseau about his gun, ominously warning him that if he (Rousseau) harmed him (Vaughn), the former would not be allowed by his friends and relatives in the neighborhood to leave the lot alive. As if to give substance to this warning, a number of friends of Vaughn in the parking lot began to gather about him and Rousseau. Vaughn testified that this group of friends wanted to "roughen him (Rousseau) up," but he indicated he sought to dissuade them. The whole situation became so threatening to Rousseau that, in Vaughn's words, Rousseau "panicked," put up his gun, and started to depart. As Rousseau was departing, Vaughn said he took Rousseau by the shoulders, shook him, and warned him never to do that again. Vaughn then walked with Rousseau toward the latter's car and in a friendly manner told him thereafter to deal directly with him when he wanted drugs and not through Rusty.

It was in the course of this encounter of Rousseau with Vaughn and during the time that Rousseau had his gun directed at Vaughn that the alleged confession was given. In reply to Rousseau's repeated demand for either the heroin or the money, Vaughn, according to his version of the statement, first said in a questioning way, "(t)hat's the case?" and then added, "(y)ou check with your partner, Rusty." Rousseau's story is somewhat different. He testified that Vaughn said, "We left the package at your man's house. It's your man that's ripping you off." It is this specific statement of Vaughn whether taken as voluntarily testified to by Vaughn at trial without objection or as testified to by Rousseau, again without objection that the defendants contend was subject to suppression as a coerced confession had a motion been timely made. ³

After he left the parking lot following his encounter with Vaughn, Rousseau returned with Rusty to the latter's home. Billie Sue was still at the house. Rousseau told Rusty to have her get the package. She did so, saying Wertz had given it to her with instructions that it was for Rusty. On analysis, the contents of the package were...