United States v. Mahoney
| Decision Date | 14 February 1973 |
| Docket Number | Crim. No. 72-377. |
| Citation | 355 F. Supp. 418 |
| Parties | UNITED STATES of America, Plaintiff, v. Woodrow W. MAHONEY et al., Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
Stephen L. Dunne, Asst. U. S. Atty., Bernard A. Horton, New Orleans, La., for Woodrow W. Mahoney.
Walter G. Monsour, Jr., Baton Rouge, La., for Oliver P. Brannon.
Milton P. Masinter, New Orleans, La., for James T. Caves.
This rather complicated case involves the importation of 118 pounds of marijuana into this country by one Garfield Mortley. This marijuana eventually found its way into the hands of the three defendants in this case, who were charged with possession of narcotics in violation of 21 U.S.C. § 844(a). The case is now before me on the defendants' motion to dismiss on the grounds of entrapment.
The factual circumstances surrounding these charges, as developed by the evidentiary hearing I held, are largely undisputed. Briefly, it appears that Garfield Mortley, a merchant seaman, was a regular and large-scale importer of drugs into this country. His chief buyer and distributor here was one Joseph Reed. Through Reed, the defendants Brannon, Caves and Mahoney met and dealt with Mortley in his illicit traffic. The extent of this relationship is in some dispute. The defendant Caves claims to have met Mortley on only one occasion and then rather casually. The defendant Brannon (Casey) admitted to two meetings with Mortley, and apparently the defendant Mahoney accompanied him on both of these occasions. At one, Casey testified that ten pounds of marijuana was purchased at $125 a pound, and on the other, the defendants (including Mahoney and Caves) were short-changed 15 pounds of marijuana in a transaction which they claim led them to break off their relationship with Mortley and Reed. Mortley, on the other hand, testified that he made three deliveries to the defendants prior to the incident giving rise to this motion. He further claimed that he made arrangements for future deliveries to these defendants and that they told him that they would buy all that he could import. These latter assertions the defendants deny. Mortley also testified, however that Joseph Reed was always his intermediary in these transactions; that Reed would arrange all of his sales and would either meet Mortley's vessel in person when it docked at Gramercy or else arrange for Mortley's transportation up from the port to Reed's residence in Scotlandville, where the deals would be consummated. The defendants would not be waiting at Reed's apartment but would be telephoned after Mortley had arrived with the contraband. While Mortley said that the defendants knew to expect him around June 13, he admits that they did not know the precise time of his arrival and that they could not have reached him in Gramercy, and could not have met him on the occasion giving rise to this litigation had he not initiated contact with them.
Early in the morning of June 13, Mortley arrived in this country with a large shipment of marijuana—about 118 pounds—and was met at the berth of his vessel by Joseph Reed. By this time Customs agents were aware of the activities of the smuggling ring and had staked out Mortley's ship, hoping to intercept him. Reed's car attracted the suspicion of local police officials who attempted to hail the car down. Reed panicked and fled with these officers in pursuit. The automobile was curbed and Mortley and Reed arrested and turned over to Customs officials together with the contraband marijuana.1 At all subsequent times, the contraband was either in the custody or under the control of Customs inspectors, although it was not logged into the Customs warehouse until after the incidents detailed below.
At the time of their arrest, neither Mortley nor Reed was a government agent or informer; but shortly thereafter Mortley offered to "cooperate" with Customs agents' efforts to ensnare Mortley's purported customers. The smuggler-turned-agent supplied the authorities with a telephone number which he states Brannon and Mahoney gave him as a place where they could be reached. The number was in fact that of a girl friend of one of these defendants. An agent (Petty) placed a call to that number, reaching the defendant Brannon. A conversation ensued, the substance of which was as follows. The agent represented himself as a friend of Mortley's who had been given custody of the latest shipment by Mortley because of some trouble the latter had experienced bringing it into the country. Brannon told him that the last time they'd dealt with Mortley they'd been short-changed 15 pounds and that they'd have to get that squared away before they could do business again. Brannon also said that the defendants did not have the cash necessary to purchase the full amount that Mortley had smuggled in. The agent professed to be unaware of the earlier difficulties the defendants had experienced with Mortley and said he wanted no part of all that trouble. The defendant Brannon replied that everything would "be cool" provided that the previous shortage was cleared up, and the agent responded that he would have Mortley call them in the afternoon to try to make the necessary arrangements.
After this call was completed, the government agent who had made it spoke with Mortley. According to Mortley, Agent Petty instructed him to make the call, but did not leave instructions to make the arrangements for the sale to the defendants. This Mortley allegedly did on his own initiative. Although the substance of Mortley's conversation with the defendants is not a matter of record, it appears undisputed that Mortley made the defendants a generous offer in order to induce them to deal with him. He promised to make up the previous 15 pound shortage and to allow them to acquire the entire balance of the shipment for whatever cash they could raise. In other words, the defendants were permitted to purchase this shipment of contraband on credit—an arrangement never before employed.
The testimony of Agents Sibley and Petty—the two Customs officials in charge of this investigation—is substantially similar in this regard. They acknowledge that it was they who decided to "continue the investigation" to embrace these defendants on the basis of information they received from Mortley and that he volunteered to cooperate with them. To this purpose, Mortley was allowed to call the defendants and set up a sale and was permitted to meet them with the narcotics previously seized in order to complete the crime. While in custody and under the control of the agents, Mortley made arrangements to transfer the marijuana to the defendants in New Orleans, at which time they were arrested and eventually charged with possession of the drug.
This case presents a rare instance of a government agent selling rather than buying contraband. This is not a standard practice. The government justifies its conduct by arguing that these goods were in effect consigned to the defendants; and that all that the government did here was to allow Mortley to complete the transaction as it was originally intended to occur before the agents arrested Mortley and Reed and seized the marijuana they were carrying. The government claims that they have shown —through their demonstration of a recurrent pattern of dealings between the defendants, Reed and Mortley—that this contraband was intended to reach Brannon, Caves and Mahoney. The government asserts that this same rationale would be improperly applied were it used to follow this drug shipment through to remote customers, as the amount of crime so generated would be excessive; but here, so the argument goes, nothing more was done than to complete a delivery intended from the outset to occur.
The defendants dispute the government's contention that this marijuana was intended to reach them. They point out that their last transaction with Mortley had resulted in their being short-changed almost $2000 worth of drugs (a fact which is undisputed) and that they did not intend to deal with Mortley and Reed in the future because of this prior bad experience. Thus, the defendants argue, the government's "consignment theory" is defective under the particular facts of this case, irrespective of its validity as a general proposition.
From the evidence presented to me, I find that there is no testimony that anyone but Reed was the conduit through which all of Mortley's contraband passed. Even if Mortley's testimony to the effect that the defendants promised to buy all that he could import is believed,2 nevertheless he identified Reed as the sole domestic distributor of his illicit drugs. The evidence does not suggest, in other words, that the defendants were in fact the sole users of all of Mortley's illicit materials irrespective of their willingness to be; and after the short-changing of the defendants in which he participated, it seems unlikely that they would have been willing to adhere to any earlier pledge they might have made. The recorded conversation between Casey and Agent Petty, portions of which are set out in the margin,3 seems to substantiate this. At the very least, this episode leaves the government's "consignment" theory open to doubt.4
But there is a second component to the defendants' position. They claim that the government's conduct in this case amounted to entrapment—not in the traditional sense but in an emerging, supplemental "government misconduct" sense. Briefly put, they argue that the defendants' criminal activity would have been impossible had it not been for the extensive efforts of the government. Once the agents had arrested Mortley and Reed and seized the marijuana they were transporting, all possibility for criminal conduct in respect of that contraband was terminated. However, the government, acting through its by-then-agent Mortley, created additional criminal...
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