United States v. Haley, 71-1183

• Decision Date: 06 March 1972
• Docket Number: 71-1208 to 71-1211.,No. 71-1183,71-1183
• Parties: UNITED STATES of America, Appellee, v. Dale Ray HALEY, Appellant. UNITED STATES of America, Appellee, v. Steven Paul LILEY, Appellant. UNITED STATES of America, Appellee, v. Charles Lee MILLER, Appellant. UNITED STATES of America, Appellee, v. Donald Lee OLENCHAK, Appellant. UNITED STATES of America, Appellee, v. Roger Lee SHEEHAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.2d 391 (1971)

UNITED STATES of America, Appellee, v. Dale Ray HALEY, Appellant.

UNITED STATES of America, Appellee, v. Steven Paul LILEY, Appellant.

UNITED STATES of America, Appellee, v. Charles Lee MILLER, Appellant.

UNITED STATES of America, Appellee, v. Donald Lee OLENCHAK, Appellant.

UNITED STATES of America, Appellee, v. Roger Lee SHEEHAN, Appellant.

Nos. 71-1183, 71-1208 to 71-1211.

United States Court of Appeals, Eighth Circuit.

November 15, 1971.

Certiorari Denied March 6, 1972.

Name of counsel making argument for appellant, Haley (Case Nos. 71-1183 and 71-1192), is Paul E. Watts, Omaha, Neb Name of counsel making argument for appellants, Liley, Miller and Olenchek (Case Nos. 71-1208, 71-1209 and 71-1210), is Douglas W. Thomson, St. Paul, Minn.

Name of counsel making argument for appellant, Sheehan (Case No. 71-1211), is Bruce Hartigan, Minneapolis, Minn.

Name of counsel making argument for appellant, Smith (Case No. 71-1191), is Paul E. Watts, Omaha, Neb.

Peter J. Thompson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before JOHNSEN, GIBSON and LAY, Circuit Judges.

Certiorari Denied March 6, 1972. See 92 S.Ct. 1205, 1206.

PER CURIAM.

Defendants Roger Lee Sheehan, Donald Lee Olenchak and Charles Lee Miller were convicted on six counts of illegally selling narcotic drugs not in pursuance to a written order in violation of 26 U.S.C. § 4705(a). They were also found guilty on five counts of illegally selling narcotics knowing the same to have been illegally imported into the United States in violation of 21 U.S.C. § 174, and together with two other defendants, Steven Paul Liley and Dale Ray Haley, were convicted under 18 U.S.C. § 371 on a separate count of conspiring to sell narcotic drugs. Each defendant has filed an appeal. We affirm the judgments of conviction.

The chronology of events may be briefly stated. In early April 1970 defendant Steven Liley, a member of the Hell's Angels, a motorcycle club in Minneapolis, Minnesota, his brother Thomas, an undercover agent, and two other government informants met with Roger Sheehan, a vice-president of the Minneapolis Hell's Angels, in Minneapolis. The men discussed and negotiated the purchase of one-half pound of heroin coming from Omaha, Nebraska. The Lileys and special agent James McDowell were to drive from Minneapolis to Omaha to purchase the drugs from the Omaha Hell's Angels. At that meeting Steven Liley stated that Sheehan furnished the drugs for the Hell's Angels of Minneapolis, obtaining them from Oakland, California. On April 21, 1970, the evidence shows Steven Liley picked up heroin from defendants Dale Ray Haley and Roger Levell in Omaha. One ounce of this heroin was sold by Steven Liley in an Omaha motel to special agent Jack Walsh who was posing as a bookie. Defendant Liley stated at that time that "his people" were in California picking up more drugs and would drop some off in Omaha. The record shows a few days prior to this conversation, on April 18, 1970, defendant Donald Lee Olenchak had wired $800 to Oakland, California, for defendant Roger Sheehan.

On June 18, 1970, an addict by the name of Daniel DeGuisseppi sold two packets of cocaine to agents at their Minneapolis undercover office for $300. DeGuisseppi stated he had purchased the cocaine earlier that day from defendant Donald Lee Olenchak for some $270. Olenchak later admitted this. DeGuisseppi testified that he had purchased cocaine and heroin from defendants Donald Olenchak, Charles Miller and Steven Liley on numerous other occasions, including one in which he purchased some cocaine from Liley and together they rode over to Sheehan's house to pick it up. In that same month of June, the special employee, Thomas Liley, heard from Miller that Sheehan had set up the Hell's Angels heroin business for Miller and Olenchak and the cocaine business of the Angels went to Steven Liley and one Ray Brown.

Beginning in late June and for a period of several weeks thereafter, negotiations and sales between the defendants and the agents continued at a quickened pace. On June 28, 1970, three defendants met with the agents and special employees and negotiated an initial price of $1,300 an ounce for the heroin which was expected to arrive the next day. The following evening, as planned, Olenchak, Miller and Steve Liley delivered one ounce of heroin to the agents for $1,000. Miller gave agents a note with his name and phone number on it. Olenchak guaranteed the quality of the heroin. On July 6, 1970, Miller and Olenchak sold agents five "spoons" of heroin for $650. Olenchak said his man would leave for the cocaine the next day. On July 7, 1970, Roger Sheen flew to Oakland, California, where his wife wired him $1,000. On the 7th, Olenchak called an agent and told him that the heroin was in and the cocaine would arrive in several days. That evening defendants Olenchak and Miller transferred some five ounces of heroin to agents Mulhauser and Walsh.

The next day Miller went to the Minneapolis airport and met a flight from Omaha carrying defendant Haley. Before returning to Omaha, Haley received a large quantity of money from Miller, some of which was later found to be the government's money from the previous heroin sale. Upon arriving in Omaha Haley was met by Roger Levell. That afternoon Levell and his wife purchased tickets for a flight to Oakland, California, using cash paid by the agents on the previous evening's purchase of heroin. Levell and his wife returned the next day.

In August when the agents confronted defendants about the quality of the drugs that had been supplied, defendants retorted that there had been no complaints in the past and that they guaranteed the quality of the drugs. As if to prove the point, defendant Olenchak left and returned with one-half ounce of uncut heroin which he sold to agent Mulhauser for $1,000. Upon analysis this heroin was found to be 51.4 percent pure. Sheehan then stated his function was to travel to the West Coast, maintain contact with their source of supply for drugs, and return and distribute the drugs to local members and that he would bring back suitcases of drugs at a time.

On September 15, 1970, Miller introduced agent McDowell to defendants Haley and Levell in Omaha; they thereupon sold two ounces of heroin to the agent for $2,200. Defendants Haley and Levell told McDowell that they handled the heroin business in Omaha. On October 14, 1970, agent McDowell and special employee Thomas Liley flew to Omaha where they purchased three ounces of heroin from Haley and Levell for $2,550. All defendants were arrested on October 15, 1970.

The evidence as set forth shows that on the occasions described in the indictment, the government agents, posing as underworld figures, successfully made purchases of cocaine and heroin from the various defendants. All the defendants, except Sheehan, said these sales were the fruit of an entrapment. These defendants claim that Thomas Liley told them that "Fast Eddie," actually an undercover agent, had threatened to kill him unless he could pay back a $6,000 debt or provide the equivalent in dope. Since Thomas Liley was a brother of a Hell's Angels member, they agreed to help by obtaining the drugs. Thereafter, from April 1970 until the defendants' arrest in October 1970, many thousands of dollars worth of drugs exchanged hands.

Defendants bring to the court's attention two judicial viewpoints on the law of entrapment. One position recognized by the majority opinions in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), seeks to protect innocent persons from improper inducements of government agents to do criminal activity. Under this approach if the accused is given the mere opportunity to show his own bent for perpetrating criminal activity, even though inducements are employed, then the entrapment policy has not been violated. The predisposition of the accused to commit crime becomes a fundamental issue of the case. The minority view espoused by Mr. Justice Frankfurter in Sherman v. United States, supra, places little importance on any criminal disposition of an accused. Rather, it seeks to discourage reprehensible governmental conduct.¹

The Court in Sherman refused to accept the Roberts and Frankfurter notions of entrapment. 356 U.S. at 376, 78 S.Ct. 819. See also Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). The Court declined a further dealing with the issue in Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), although Mr. Justice Harlan recognized that it had on past occasions "sharply divided" the Court. Thus, to the extent that the defendants embrace the minority positions of Sherman and Sorrells in asking for a finding of entrapment as a matter of law, they are speaking to the wrong court.

The essence of the government's argument is (1) they did not entrap, since there was no inducement used, or (2) assuming the agents may be said to have used persuasion to get the defendants to commit the crimes, the defendants nevertheless possessed a predisposition to violate the law. Here the inducement was allegedly to pay back "Fast Eddie" for a debt in money or the equivalent of drugs. The government informer, Thomas Liley, denied that he told any of the defendants that his life had been threatened. The undercover agents admitted that they used artifice and stratagem, but they denied that they had threatened or led defendants to believe they threatened the life of Thomas Liley. Under these circumstances the conflicting evidence as to the existence of entrapment was a question for the jury. McWilliams v. United States, 394 F.2d 41 (8 Cir. 1968), cert. denied, 393 U.S. 1044, 89 S.Ct. 643, 21 L.Ed.2d 593 (1969); Taylor v. United States, 390 F.2d 278 (8 Cir. 1968), cert. denied, 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137; Kibby v....