U.S. v. Yater, 84-3450
| Citation | 756 F.2d 1058 |
| Decision Date | 21 March 1985 |
| Docket Number | No. 84-3450,84-3450 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William Dale YATER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Virginia L. Schleuter, FPD, New Orleans, La., for defendant-appellant.
John P. Volz, U.S. Atty., Peter Strasser, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN, WILLIAMS and GARWOOD, Circuit Judges.
Defendant William Dale Yater appeals his conviction for conspiracy to distribute cocaine in violation of 18 U.S.C. Sec. 371. Defendant entered a conditional plea of guilty to the conspiracy charge, reserving the right to appeal the district court's denial of his Motion to Dismiss on Grounds of Governmental Overreaching and Entrapment. Finding no reversible error, we affirm the conviction.
Appellant Yater's motion to dismiss was heard on the basis of Yater's supporting affidavit, executed May 2, 1984, and the stipulated testimony of a government agent and two confidential informants, which revealed the following.
In August 1983, Yater traveled to Jackson, Mississippi, to take part in a high-stakes poker game. While waiting to play, appellant was introduced by a friend to Donald Smith, James McMillan, and James Marshall. Unknown to Yater, the three men were confidential informants of the Drug Enforcement Administration ("DEA"), employed by that agency to arrange undercover drug sales and to provide information concerning the activities of drug dealers. 1 The informants learned that Yater was being staked in the poker game by David Snoddy, a major drug operator in partnership with one Donald Gilbreath. The high-stakes poker game Yater had been waiting to play in never materialized, however, so he left Jackson the following day, returning to his home state of Georgia. Later that month, the informants reported the information they had received concerning Snoddy's and Gilbreath's drug operation to a special agent of the DEA, David Paige, and decided to try to arrange a drug sale between Paige and the two operators. 2 The informants began to call Yater at Days Lodge in Atlanta at a number he had given them when he was in Jackson. Yater admits that he returned their calls. Over the next four months, the informants called him frequently, 3 asking him to introduce them to Snoddy and Gilbreath so that they could arrange a drug deal. Yater states that he refused to cooperate with them.
In his affidavit, Yater states that the informants subsequently called him at his home in Georgia and asked him to return to Jackson. The informants reportedly said they would stake Yater in a poker game, and that he probably could earn as much as $30,000 playing against gamblers who would be in Jackson to attend a cock fight. Yater states that he agreed to play, and that he traveled to Jackson at his own expense in November 1983. Again, however, no card game developed.
While he was in Jackson, Yater told the informants that he was dying of cancer of the lungs and lymph nodes, and that he had an eighteen-month-old child to support. 4 Yater's affidavit and stipulated testimony present differing accounts of how the informants responded to Yater's statements.
Yater stated that the informants promised him that: if his physical condition deteriorated, he and his child could move to the informants' home, where they would receive food and shelter; the informants would not let him be taken to a cancer home, which he understood as an offer for a house with a nurse until his death; upon his death, the child could live with James McMillan. The informants, however, stated merely that they expressed concern over Yater's condition and told him not to hesitate to call should he need any assistance.
Before Yater departed, their conversations turned to the subject of cocaine. According to Yater's affidavit, the confidential informants told him that he could make between $30,000 and $50,000 per month by trafficking in cocaine. After discussing the matter, Yater agreed to sell them the drug. 5 The informants put Yater in touch with Paige, who was to act as their contact. Over the telephone, Yater and Paige arranged for Yater to deliver approximately 414 grams of cocaine to Paige in Hammond, Louisiana, a city outside New Orleans, on December 1, 1983.
Testimony at previous hearings in the case reflect the following concerning the commission of the offense. Yater and a supplier, Robert Clark Nichols, obtained the cocaine from sources in Atlanta. They acquired a 1983 Eldorado Cadillac and transported the cocaine to Jackson, Mississippi. After spending the night in Jackson, the two men drove through to Hammond, Louisiana, and arrived at the site of the drug sale shortly after 6:30 p.m. on December 21. Paige and officers from the Hammond City Police Department had arrived at the Hammond Square Mall parking lot at 6:00 p.m. to await their arrival. Appellant does not challenge the government's version of the events which took place at the site of the arrest. Paige and a confidential informant approached Yater's vehicle. Appellant got out of the passenger side to meet them, while Nichols remained in the driver's seat with the door closed and the motor running. Yater and Paige talked briefly, and then appellant walked to the passenger side of the vehicle and leaned into the car through the front window. Either Yater or Nichols pressed an automatic trunk release located in the glove compartment of the Cadillac, springing the lock on the trunk. Yater and Paige opened the trunk the rest of the way, and appellant pointed inside to a bag. Paige reached in, opened the bag, and took out a large envelope. Inside the envelope, he found plastic bags which contained 414.6 grams of cocaine. Paige then broke the seal on one of the bags, sniffed the contents, and otherwise examined the supply. Yater told him that the contents were at least 85% pure cocaine, and offered Paige the cocaine for $29,000.
Yater asked where the money was located, and Paige responded that it was in a vehicle on the other side of the parking lot. Yater asked to see the cash, and the two men started to walk in the direction Paige had indicated. At that point, Paige gave a prearranged arrest signal to DEA and Hammond City Police Department officers, who immediately moved in to arrest Yater and Nichols. Appellant was arrested at 6:45 p.m. on charges of possession of cocaine with intent to distribute, and conspiracy to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 846. The contraband was field-tested for cocaine with positive results. Laboratory tests in Dallas later determined that it was 96% pure cocaine.
Appellant admits that he participated in the crime, but argues that his prosecution is barred because he was entrapped. He contends that the government's confidential informants deliberately implanted criminal intent or design in his mind, causing him to commit an offense that he never would have committed in the absence of government inducement. The trial court, in its May 8, 1984 memorandum, held that entrapment is an issue "to be decided by the jury, and is not amenable to pretrial motion." By pleading guilty, the court held, Yater waived the entrapment defense. We sustain the court's ruling, holding that appellant has waived the issue whether he was entrapped.
The entrapment defense focuses on the intent or predisposition of the defendant to commit the crime rather than on the conduct of the government's agents. United States v. Henry, 749 F.2d 203, 208-210 (5th Cir.1984) (en banc); United States v. Webster, 649 F.2d 346, 348-49 (5th Cir.1981) (en banc); United States v. Bower, 575 F.2d 499, 504 (5th Cir.), cert. denied, 439 U.S. 983, 99 S.Ct. 572, 58 L.Ed.2d 654 (1978); United States v. Anderton, 679 F.2d 1199, 1201 (5th Cir.1982). The government's provision of aid, incentive, and opportunity to commit the crime does not amount to entrapment unless it appears that the "defendant has done that which he would never have done were it not for the inducement of Government operatives." Bower, 575 F.2d at 504. 6
The question of entrapment goes to the basic guilt or innocence of the defendant. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), Justice Rehnquist explained that entrapment is based on the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of an offense but who was induced to commit them by the government. 411 U.S. at 435, 93 S.Ct. at 1644. As we stated in Henry:
"The concern [in entrapment cases] is thus that the accused is not guilty,...
To continue reading
Request your trial
-
Nixon v. US, H88-0052(G).
...Thomas Nixon, 777 F.2d 958, 963-964 (5th Cir. 1985); United States v. Nations, 764 F.2d 1073, 1077 (5th Cir.1985); United States v. Yater, 756 F.2d 1058, 1065 (5th Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). However, this theory requires proof of "government ove......
-
Com. v. Nelson
...rarest and most outrageous circumstances.' " United States v. Arteaga, 807 F.2d 424, 426 (5th Cir.1986), quoting United States v. Yater, 756 F.2d 1058, 1066 (5th Cir.1985), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). See also: United States v. Rubio, 834 F.2d 442, 450 ......
-
Com. v. Benchino
...rarest and most outrageous circumstances.' " United States v. Arteaga, 807 F.2d 424, 426 (5th Cir.1986), quoting United States v. Yater, 756 F.2d 1058, 1066 (5th Cir.1985), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). See also: United States v. Rubio, 834 F.2d 442, 450 ......
-
U.S. v. Risken
...is, to "cases in which the government directs the informant to implicate government-pretargeted specific defendants." United States v. Yater, 756 F.2d 1058, 1067 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). It is the government's pre-selection or pre-target......