United States v. Haley

• Citation: 452 F.2d 398
• Decision Date: 06 March 1972
• Docket Number: No. 71-1192.,71-1192.
• Parties: UNITED STATES of America, Appellee, v. Dale Ray HALEY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

452 F.2d 398 (1971)

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

No. 71-1192.

United States Court of Appeals, Eighth Circuit.

November 15, 1971.

Certiorari Denied March 6, 1972.

Paul E. Watts, Omaha, Neb., for appellant.

Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.

Before JOHNSEN, GIBSON and LAY, Circuit Judges.

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

LAY, Circuit Judge.

Defendant Dale Ray Haley was convicted in the United States District Court for the Southern District of Iowa on two counts under 26 U.S.C. § 4704(a),¹ dispensing and distributing heroin not in or from the original stamped package; and on two counts under § 4705(a),² selling heroin not pursuant to a written order. He appeals his judgment of conviction.³ He asserts as error: (1) the jury's acquittal of defendant on the counts charged under § 174⁴ removed jurisdiction to prosecute for the illegal sales since the acquittal established that the defendant had no knowledge of the heroin's illegal importation; (2) there was undisputed evidence that defendant was simply a procuring agent for the government; (3) the court's instructions on entrapment were erroneous; (4) the defendant was placed in double jeopardy as to the substantive offenses of this action since they constituted the same overt acts as those charged in an earlier conspiracy conviction in Minnesota; and (5) the prosecutor made unfair comments in his summation to the jury.

I. LACK OF KNOWLEDGE AND EVIDENCE OF ILLEGAL IMPORTATION

Defendant was acquitted of counts charging violation of § 174 for receiving, concealing and facilitating the transportation of heroin. This particular statute supports the permissible inference that heroin in the United States has been illegally imported, and a defendant who possesses it is charged with the knowledge that this is so. This statutory inference has been constitutionally upheld. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). During the course of defendant's trial the government's chemist admitted that the heroin may have been synthetically produced in this country. But see 396 U.S. at 409-410, 90 S.Ct. 642. Defendant's argument is that the verdict of acquittal under § 174 destroys the jurisdictional bases for conviction under §§ 4704(a) and 4705(a).

The acquittal on the two counts under § 174 may well have represented a compromise by the jury. See, United States v. Porter, 441 F.2d 1204 (8 Cir. 1971); Koolish v. United States, 340 F. 2d 513 (8 Cir. 1965), cert. denied 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724. We refuse to speculate as to the basis for the jury verdict. Even assuming for the sake of argument, however, that the jury concluded defendant did not have knowledge of any illegal importation, this contention does not undercut the convictions under §§ 4704(a) and 4705(a). Violation of §§ 4704(a) and 4705(a) does not depend on the illegality of the importation. Cf. 396 U.S. at 420-421, 90 S.Ct. 642. These sections do not rest their jurisdictional bases on congressional regulation over imports, rather the authority to regulate is through Congress' power to "lay and collect taxes." U.S.Const. art. I, § 8; United States v. Doremus, 249 U.S. 86, 39 S. Ct. 214, 63 L.Ed. 493 (1919). In the instant case the defendant was charged with "selling and distributing" the heroin from an unstamped package. The government does not rely upon any assumptions of proof. Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L. Ed.2d 597 (1959); cf. Turner v. United States, supra, 396 U.S. at 421, 90 S.Ct. 642; Yearwood v. United States, 294 F. Supp. 748, 749 (S.D.N.Y.1969). Direct testimony showed that defendant was dispensing and distributing heroin from an unstamped package. Testimony likewise established that defendant sold heroin without a written order. Therefore, even absolute proof that defendant had no knowledge of the illegal importation would not defeat his convictions under §§ 4704(a) and 4705(a).

II. "PROCURING AGENT" DEFENSE

The defendant testified that he obtained the heroin only because he was induced to do so by the government's informer. He related that the informant told him that he would be killed by a person known as "Fast Eddy" if he did not produce some drugs. "Fast Eddy" was shown to be an undercover government agent, too. This testimony concerning the threat was denied by the government. Defendant's claim is that he personally received no money on the exchange. He asserts that he was entitled to a directed verdict of acquittal since the evidence was not contradicted that he was a procuring agent.

The defendant requested an instruction regarding the procuring agent defense based on Lewis v. United States, 119 U.S.App.D.C. 145, 337 F.2d 541 (1964), cert. denied 381 U.S. 920. The court gave the instruction. We find no error in submitting this issue to the jury. See United States v. Shoemaker, 429 F.2d 530 (8 Cir. 1970). There existed substantial proof from which a jury could find that Haley was not simply a procuring agent. The defendant paid a third party for arranging the September 15, 1970, meeting with undercover agent James McDowell in order to make the sale. The defendant gave McDowell a phone number where he could be reached for future purchases. The defendant made a later sale on October 14, 1970, without any intermediary, and the price of that sale was negotiated between the government agent and the defendant.

III. ENTRAPMENT INSTRUCTION

The entrapment instruction given by the court is set out in the margin.⁵ The defendant requested an instruction which also contained the statement that, "Inducement may take different forms, such as persuasion, fraudulent representations, threats or other coercive tactics." Defendant argues that it was error for the court to refuse this request. He further complains that this amplification was necessary for the jury to fully consider the "creative activity" or "corruption" by the government officials in understanding the defense of entrapment. It is urged that the example used by the trial court amounted to a judicial finding of lack of "corruption" or "creative activity" thereby removing the jury as the trier of fact on the key issue. The government did not introduce any evidence of other transactions, his propensities or anything similar to warrant the example, according to defendant. Defendant finally urges that entrapment was established as a matter of law. We find these arguments to be without merit.

The entrapment instruction given is found in Devitt & Blackmar, Federal Jury Practice & Instructions § 13.13 at 290-91 (2d Ed.1970). The essential issue for the jury was whether the defendant was basically an innocent person in whose mind the government implanted some criminal design. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Although possibly its language might have been improved upon, we find no condemning impropriety or prejudice in the charge as given. Defendant's proffered instruction amplifying "inducement" was not essential to an understanding of the instruction. The defendant was at liberty to persuade the jury in oral argument of the corruptive means allegedly forming the government's inducement. The instruction need not adopt the defendant's closing argument. United States v. Long, 449 F.2d 288 (8 Cir. 1971). Whether defendant may be shown to have a predisposition to the crime is a circumstance dependent on all of the surrounding facts to the crime. Where the government denies any form of inducement, direct proof of predisposition is not necessary to rebut the defense of entrapment.⁶ The government's position was that it merely afforded the defendant the opportunity to make a sale. 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; Rowell v. United States, 368 F.2d 957 (8 Cir. 1966), cert. denied 386 U.S. 1009, 87 S.Ct. 1353, 18 L.Ed.2d 438 (1967). Once the jury believed the agents' testimony, the defense of entrapment had to fall. Kibby v. United States, 372 F.2d 598 (8 Cir. 1967), cert. denied 387 U.S. 931, 87 S.Ct. 2055, 18 L. Ed.2d 993; Rush v. United States, 370 F.2d 520 (8 Cir. 1967), cert. denied 387 U.S. 943, 87 S.Ct. 2073, 18 L.Ed.2d 1328; Cross v. United States, 347 F.2d 327 (8 Cir. 1965).

In the case of Henderson v. United States, 261 F.2d 909 (5 Cir. 1958), entrapment was established as a matter of law. The court stressed that it was "patently clear" on the evidence that the defendant was the victim of the government employee's activities. There the defendant was charged with violation of the narcotics laws in supplying drugs to a government employee. The employee had requested that the defendant obtain some narcotics for him and after some hesitancy, she agreed with the justification that he was a good friend of hers and she felt obligated to repay him for past favors. The court noted that the government employee gave defendant instructions on where to find the drugs along with the purchasing money in advance. There was positive, uncontradicted evidence that she made no profit on the transactions.

Here, defendant claims it took him some five or six months to locate the drugs sought by the government, and that he was initially skeptical of the government's reasons for its need for drugs, i. e., the threat of death. He claims he made no money on the two deliveries of heroin to the government agent, although this was disputed. Nevertheless, we see the facts in this case departing markedly from Henderson. The evidence shows Haley already had some drugs on hand when the agents arrived at his home. On a subsequent request he quickly located more drugs; he was not paid in advance for finding the drugs and upon completion of the first transaction, he left his telephone number with the agent in case the agent should want more narcotics in the future. These facts undermined defendant's...