United States v. Hayes

• Decision Date: 04 June 1973
• Docket Number: No. 72-1126.,72-1126.
• Citation: 477 F.2d 868
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry HAYES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

477 F.2d 868 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Larry HAYES, Defendant-Appellant.

No. 72-1126.

United States Court of Appeals, Tenth Circuit.

May 4, 1973.

Rehearing Denied June 4, 1973.

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Robert L. Pitler, Denver, Colo., for defendant-appellant.

Paul D. Cooper, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before BARNES^*, HILL and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Hayes and his co-defendant Hess were found guilty by a jury of unlawful sale and delivery of LSD in violation of 21 U.S.C.A. § 331(q)(2) (1968). Their convictions occurred on a retrial after prior convictions were set aside by this court. 10 Cir., 441 F.2d 542. Hess has not appealed his conviction and we are concerned only with that of Hayes.

The case against Hayes was submitted to the jury on his possible guilt both as a principal and as an aider and abettor under 18 U.S.C.A. § 2. The defense was entrapment. After the verdict against him, Hayes was sentenced under the Federal Youth Corrections Act, 18 U.S. C.A. § 5010(b), and this appeal followed.

Defendant Hayes essentially argues on this appeal that the trial court erred: (1) as a matter of law in not requiring the prosecution to produce as a witness the government's paid informant and participant in the LDS purchase, Mr. Ellerton; (2) in not giving requested instructions that failure to produce Ellerton created a presumption that his testimony would be unfavorable to the prosecution; (3) in not concluding that there was entrapment as a matter of law; (4) in refusing to allow defendant Hayes to testify as to his state of mind in connection with the entrapment defense; and (5) in submitting an instruction on aiding and abetting as a basis of guilt.

First, we consider defendant's proposition that the trial court erred as a matter of law in not requiring the government to produce its paid informant, Mr. Ellerton, at trial. This contention was raised first in a pretrial motion which was argued to the trial court and denied. At the hearing the court indicated to defendant's attorney that it would not require the government to call Ellerton as a witness, but the court stated that the government would have to advise defendant of Ellerton's address so that he could be called as a defense witness, if desired. Defendant's attorney stated that the defense would call him "if the government would do that."

Government counsel then advised the court that they had Ellerton's October, 1969, address but had had no contact with him since that time; that they could not find him for the last trial; that efforts were being made to locate him, which would continue; and that if he were found, defense counsel would be notified. The court accepted this statement by government counsel and entered a subsequent order denying the defense motion for production of Ellerton.

Defendant's motions after trial raised the question again, but were overruled. On appeal defendant says the conviction must be reversed since the government failed to produce Ellerton and made no showing of a reasonable effort to do so. He argues that Ellerton's appearance is crucial as corroboration in a case like this where the defense is entrapment. Reliance is placed primarily on Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir.), and United States v. Clarke, 220 F.Supp. 905 (E.D.Pa.).

Under various circumstances the courts have held the government to a duty to produce an informant or make a showing of a reasonable effort to do so.¹ We are, however, persuaded to agree with the trial court that in this case the government was not obligated to call Ellerton as its own witness. The court accepted as sufficient the undertaking of the prosecution to seek his present location and furnish it to the defense. We feel this was the proper measure of the government's duty in this case. The government is not the guarantor of the appearance of its informant at trial, but is required to accord reasonable cooperation in securing his appearance where a timely request is made and his testimony might substantiate a claim of the defense. United States v. Tuck, 380 F.2d 857, 859 (2d Cir.); see also United States v. Makekau, 429 F.2d 1403 (9th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141.

On this record we find no merit in defendant's request for a reversal on the ground that the government failed to show a reasonable effort to ascertain Ellerton's whereabouts. There was no motion or objection calling for a showing by the government as to such effort following the hearing on the motion to produce Ellerton. Throughout trial no move was made by the defense to raise the issue. The issue was raised in defendant's motion for a new trial but our record shows only the motion and the order overruling it.

In these circumstances we feel that it was not required that there be a showing or hearing on the reasonableness of the government's efforts to locate Ellerton. We conclude that there was no error in the handling of matters relating to the production of Ellerton as a witness or information about him.

Second, we will examine defendant's assertion that the court erred in refusing to give his proposed instructions 10 and 11.² The gist of the instructions was that an unfavorable inference may be drawn where the government fails to produce an available witness who has material testimony.

We are not persuaded by this assertion of error. As stated, our record contains no proof of the availability of Ellerton to testify at trial. The record shows only that at the time of the LSD transaction in 1969 Ellerton was a paid government informant working on a contingency basis and the subsequent representation by the prosecution at the pretrial hearing that they had Ellerton's October, 1969, address but had had no contact with him since that time and that, at the time of this pretrial hearing, his whereabouts were then unknown. Without deciding whether such instructions are necessary, in any event one essential predicate for them—the witness' availability—was not shown. See United States v. Pugh, 141 U.S. App.D.C. 68, 436 F.2d 222, 226; United States v. Makekau, supra; United States v. Peterson, 424 F.2d 1357, 1362 (7th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 266. Thus there was no error in refusing the instruction.

Third, we turn to defendant's argument that he was entitled to a judgment of acquittal because entrapment was shown as a matter of law. He relies considerably on United States v. Bueno, 447 F.2d 903 (5th Cir.) and Liptak v. State, 256 So.2d 548 (Fla.App.).

We are not persuaded that this record demonstrates that the defense was established as a matter of law. Entrapment occurs when the criminal design originates with agents of the government who implant in the mind of an innocent person the disposition to commit the offense. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413; Martinez v. United States, 373 F. 2d 810, 812 (10th Cir.). Where the proof shows that the agents merely afforded the opportunity for commission of the offense, without any creative activity on their part, there is no entrapment. Davidson v. United States, 411 F.2d 75, 77 (10th Cir.).

It is true that there was considerable proof tending to show entrapment, such as defendants' testimony that Ellerton repeatedly pleaded with them to sell him LSD; that he said he needed it to sell to pay bills and care for his pregnant wife; that he said otherwise he feared harm from a "syndicate"; and that neither defendant had sold LSD until the incident with Taketa. Moreover there was no contradiction by the informant Ellerton or otherwise of such testimony as to inducements by Ellerton. See United States v. Bueno, supra, 447 F.2d at 906.

However the defendants' own admissions weakened the entrapment defense. Hayes admitted having given LSD to another person from a few tablets he had been given, but he denied any sale of LSD to anyone. Taketa and Hess testified that there was some price negotiation on the LSD sale. And Hayes admitted he replied to a question from Taketa about getting drugs in the future, saying "yeah, we could possibly do something in the future." Hayes stated he felt very uncomfortable and said this to get Ellerton and Taketa out of the house. Thus the proof cuts both ways and was in conflict on the entrapment defense, as well as on Hayes' degree of involvement.³

As stated, defendant Hayes relies on United States v. Bueno, supra, and Liptak v. State, supra, upholding the defense of entrapment as a matter of law where the defense was supported by uncontradicted proof, respectively, of government involvement by furnishing a drug that was later unlawfully sold by a defendant, and the offer of illicit consideration as well as money by a female informant for an unlawful sale. See also Spencer v. State, 263 So.2d 282 (Fla. App.), cert. denied, 267 So.2d 835 (Fla.). We feel that reliance on the cases is misplaced.

First, our record shows no conduct by government agents of such character. Moreover the Supreme Court has recently rejected reasoning similar to that found in the Bueno and Florida cases. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (decided April 4, 1973), reversing United States v. Russell, 9th Cir., 459 F.2d 671. The Ninth Circuit had sustained an entrapment defense as a matter of law because of conduct of a government agent in supplying a scarce ingredient essential for manufacture of "speed" which the defendant later unlawfully sold. In reversing, the Supreme Court made it clear that the defense could not be sustained as a matter of law for such "overzealous law enforcement," and that the entrapment defense turned on the question of predisposition. "It is only...