United States v. Brown, 71-1105.

• Decision Date: 06 March 1972
• Docket Number: No. 71-1105.,71-1105.
• Citation: 453 F.2d 101
• Parties: UNITED STATES of America, Appellee, v. Raymond BROWN and Steven Liley, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 101 (1971)

UNITED STATES of America, Appellee, v. Raymond BROWN and Steven Liley, Appellants.

No. 71-1105.

United States Court of Appeals, Eighth Circuit.

November 30, 1971.

Certiorari Denied March 6, 1972.

COPYRIGHT MATERIAL OMITTED

Douglas W. Thomson (Court appointed), Thomson, Wylde & Nordby, Jack S. Nordby, St. Paul, Minn., for appellants.

Neal Shapiro, Asst. U. S. Atty., Robert G. Renner, U. S. Atty. D. Minn., Minneapolis, Minn., for appellee.

Before MATTHES, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.

Certiorari Denied March 6, 1972. See 92 S.Ct. 1205.

STEPHENSON, Circuit Judge.

Appellant defendants, Raymond Brown and Steven Liley, bring this appeal from their conviction upon verdicts of guilty after trial by jury of the offenses of selling depressant and stimulant drugs in violation of 21 U.S.C. § 331(q) (2), and selling narcotic drugs not being in pursuance of a written order of the purchaser on a form issued for the purpose by the Treasury, in violation of 26 U.S.C. § 4705(a). Defendant Brown was sentenced to imprisonment for twelve years on the narcotic charge and five years on each of three depressant and stimulant drug charges, the sentences to run concurrently. Defendant Liley was imprisoned for twelve years on each of two narcotic charges and five years on one depressant and stimulant drug charge, the sentences to run concurrently.¹ Appellants join in all claims of error with an additional claimed error by defendant Brown in connection with Count IV (a cocaine count) which will be separately discussed.

Entrapment as a matter of law

Appellants' initial complaint is that the evidence as a whole established entrapment as a matter of law. In this connection they urge that the evidence shows that all of the illegal sales charged were arranged by informant Thomas Liley, brother of appellant Steven Liley, who was allegedly retained by the Government on a contingent fee basis, and who was not called as a Government witness, thus unfairly depriving appellants of the right to cross-examine him; they further contend that appellants' testimony shows that the informant induced them to make the sales charged under the pretense that informant would be killed if they failed to do so. We, of course, review the evidence in the light most favorable to the Government in determining whether there was a jury issue on the question of entrapment.

In brief, this case began in early December 1969 when Thomas Liley came to the offices of the Bureau of Narcotics and Dangerous Drugs in Minneapolis and offered to provide information. At that time he showed concern for the involvement of several of his brothers in the narcotic and dangerous drug traffic and he wondered what he could do about it. The services of informant Thomas Liley were thereafter utilized by the Government agents in making the purchases set out in the indictment. Informant posed as the front man for Special Agent Muhlhauser of the Bureau of Narcotics and Dangerous Drugs, who in turn posed as a member of the Mafia under the name of "Fast Eddy." All of the sales charged as offenses in the indictment were made to Agent Muhlhauser.² Informant Liley made the arrangements for the meeting between appellants and Muhlhauser which culminated in the sales. Appellants both testified that they were reluctant participants in the drug transactions; that they were induced to do so by informant Thomas Liley's representations that his life was in danger because of debts owed his boss "Fast Eddy," a Mafia hired killer, and that the only way informant Thomas Liley's life would be spared was if he could arrange for the sale of drugs which ultimately took place. Appellants admitted all of the transactions in question except they denied appellant Brown's participation in the sale of cocaine on July 14, 1970 (Count IV). The defense of entrapment was pursued actively throughout the trial. It began with the vigorous cross-examination of the Government's first witness, Agent Muhlhauser, and was continued in the cross-examination of other agents who testified.

There is substantial evidence which supports the jury's finding that appellants were not entrapped, induced or coerced into committing the offenses charged. Agent Muhlhauser testified that it was made clear to informant that you don't induce anyone to sell drugs; that informant was paid $25 a day for the days he actually worked; that Muhlhauser had information that appellant Brown was dealing in drugs approximately six months before he was contacted by informant Liley and the first sale consummated on December 17, 1969;³ that during his meeting with appellant Brown on that date, Brown offered to sell amphetamines at a price of $25 per hundred; that he, Muhlhauser, protested the price was too high; that Brown said that in quantities of 5,000 or more the price would go down to roughly $15 per hundred; that he ultimately purchased two bottles containing approximately 1000 capsules for $250; that on numerous occasions he had conversations with appellants in which they freely discussed their ability to furnish various types of drugs;⁴ that on one occasion, July 14, 1970, in a conversation with both appellants, appellant Brown stated that he and appellant Liley sold cocaine for Hell's Angels, and that there then ensued a bargaining discussion over prices which ultimately resulted in Agent Muhlhauser agreeing to purchase an ounce of cocaine for $1250 upon the representation it was of good quality.

No useful purpose would be served by setting out all of conversations and occurrences which support the trial court's ruling denying appellants motions for judgment of acquittal on the grounds there was entrapment as a matter of law. It was properly submitted as a jury issue. See, Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); Cf. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The record fails to support appellants' claims that informant was paid on a contingent fee basis or that appellants were as a matter of law coerced into making the sales in question. In this connection appellants' complaint of error and prejudice because the Government failed to call informant Thomas Liley as a witness is devoid of merit. The Government made informant Liley available for interview by appellants' counsel and they were free to call him as a witness if they desired to do so. Clingan v. United States, 400 F.2d 849 (5 Cir. 1968).

Entrapment Instruction

Appellants next complain that the trial court's instruction on entrapment was erroneous.⁵ The thrust of appellant complaint is that the entrapment instruction "fails entirely to advise the jury to consider the misconduct of the entrapping agent * * * the emphasis is almost entirely upon the state of mind, or predisposition of the defendant." We have considered appellants' requested instruction, as well as the one given by the court. We find that the court's instruction properly follows the standards governing the issue of entrapment. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. United States, supra; Rogers v. United States, 367 F.2d 998, 1001-1003 (8 Cir. 1966).

Although not stressed during the trial, appellants additionally complain that the entrapment instruction fails to specifically state that the Government must prove beyond a reasonable doubt that a defendant was not entrapped.

Appellants submitted twelve requested instructions which included an entrapment instruction which contained a specific statement that the Government must prove beyond a reasonable doubt that the defendant was not induced to commit the unlawful conduct charged. Prior to the final submission of instructions to the jury the appellants made general objections as follows:

"* * * MR. THOMSON: Yes, Your Honor. Both defendants would except to those requested instructions submitted to the Court and refused.

We specifically except to the Court\'s charge on the definition of entrapment on the grounds that it does not fairly and adequately state the law of entrapment.

Then thirdly we will except to the Court\'s instruction on the credibility of the defendant as a witness, in the form of a cautionary instruction the jury should look closely at the testimony of defendants on the grounds that they have a special interest in the outcome."

The jury then retired to deliberate. Less than three hours later the jury requested a copy of the indictment, a clarification of the agency issue and a clarification of the entrapment issue. The Court complied by re-reading the agency instruction and the entrapment instruction and giving a copy of the indictment to the jury. After the jury again retired, the Court gave the parties an opportunity to take exception. Appellants then made the following objection:

"* * * We again object and except to the charge on entrapment as given. I believe it is not a correct statement of the law, and a special reference to the example that\'s used in the instruction. Rather than an exception to the entrapment defense, defendant has a predisposition to commit the offense; however, the instruction says that when the Government suspects that he is engaged in narcotics, then the entrapment defense is not available, and to that extent we except to the instruction as given."

Initially it should be noted that appellants did not comply with that part of Rule 30, Federal Rules of Criminal Procedure, which requires that objections to instructions must be made "before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection * * *." The purpose is to reduce the possibility of error.

"A party objecting to a failure of the trial court to give instructions requested must state specifically to what he objects and why. The object of the Rule is to reduce the possibility of error by giving the trial judge an adequate opportunity to

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