US v. Terry

• Decision Date: 02 October 2000
• Docket Number: No. 00-1079,00-1079
• Citation: 240 F.3d 65
• Parties: (1st Cir. 2001) UNITED STATES of AMERICA, Appellee, v. KENNETH B. TERRY, A/K/A "KENNY POLO," Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 65

240 F.3d 65 (1st Cir. 2001)

UNITED STATES of AMERICA, Appellee, v. KENNETH B. TERRY, A/K/A "KENNY POLO," Defendant, Appellant.

No. 00-1079

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Heard October 2, 2000.

Decided January 10, 2001.

Noah R. Feldman for defendant-appellant.

Michael J. Pelgro, Assistant U.S. Attorney, with whom Donald K. Stern, U.S. Attorney, and Cherie L. Krigsman, Assistant U.S. Attorney, were on brief, for appellee.

Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Kenneth Terry was convicted by a jury on evidence that he was a dealer in crack and powder cocaine. He argued in his defense that he was a former dealer trying to lead a clean life until he was pressured and enticed into the life of crime again by two undercover police informants. His appeal argues that the jury's rejection of his entrapment defense resulted from the trial judge's error in instructing the jury on entrapment. He also argues that his sentence was too severe because the government engaged in manipulation of his sentence by enticing him to deal specifically in crack cocaine, and that the trial judge erred, in any event, in the amount of the drugs attributed to Terry. His last argument is that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), certain matters that the trial judge used to increase his sentence -- that is, the fact of a prior conviction, the amount of drugs involved in the charged offense, and the consideration of another transaction the court considered "relevant conduct" -- were issues which should have been resolved by the jury and not by the judge. We reject these arguments and affirm the conviction and sentence.

I.

We describe the evidence as the jury could have found it. Kenneth Terry and Rafael Perez became acquainted in the early 1990s. Perez was then regularly supplying large quantities of cocaine to a Boston drug dealer named David Dinkins, who converted the powder cocaine into crack cocaine and sold it to customers. Perez regularly saw Terry at the Dinkins apartment, where Terry was a large and steady customer. Terry and Perez both knew Aundra Bennett, another customer. Dinkins, Terry, Perez, and Bennett at least once traveled together to New York City to purchase cocaine there.

Dinkins died in late 1995. In January 1996, Terry and Perez entered into a partnership in which Perez supplied Terry with crack cocaine for sale to Terry's customers. In early 1997, Bennett (now cooperating with federal DEA agents) contacted Terry seeking to purchase drugs. Terry, in response, told Bennett to page Perez, and that he would tell Perez that Bennett would be paging him, so that Perez would respond to the page. In February 1997, Bennett contacted Perez and set up a purchase of 125 grams of powder cocaine, and the sale was made on February 12. In March 1997, Bennett contacted Terry, complaining that Perez had failed to respond to another of his pages; Terry said that he would have Perez call Bennett. Perez later called Bennett and arranged the sale of 250 grams of powder cocaine, made on March 11.

In a chance encounter in late May 1997, Terry quoted Bennett a price of $ 3700 for 125 grams of crack cocaine. When Bennett did not get back to him, Terry called Bennett and offered to lower the price to $ 3200, and in June 1997, Bennett contacted Terry and agreed to purchase 125 grams at that price. On June 12, Terry sold approximately 125 grams of crack cocaine to Bennett. On June 23, 1997, Bennett contacted Terry again, and on June 24, Terry sold Bennett approximately 250 grams of crack cocaine. Again, on July 30, 1997, Terry sold Bennett approximately 250 grams of crack cocaine. During this sale, Terry told Bennett that he was suspicious that there was police surveillance. Bennett had no further contact with Terry for about a year.

In July 1998, at the DEA's request, Bennett contacted both Perez and Terry to discuss a purchase of two and one-half kilograms of crack cocaine. After several discussions negotiating price and logistics, Terry told Bennett that Perez's supplier wanted to confirm that the money was there. Bennett arranged to show Terry the $ 48,000 in cash, but the meeting aborted when Terry told Bennett that he had observed police surveillance. No deal was made.

On July 27, 1998, Perez was arrested on state warrants and Perez offered to cooperate. Under instructions, Perez contacted Terry on July 29 and sought to arrange a sale of two to three kilograms of cocaine. Perez and Terry had several conversations about the purchase and Terry's efforts to find customers. On August 3, Perez told Terry that his supplier wanted to see the money first, and Terry replied that his customers were reluctant to give it to him. In the ensuing negotiations, Perez said that he had been wanting to deal with this supplier for the longest time. He told Terry that Terry had to "get me on" this deal because "this is the deal that I had been waiting for." Perez urged Terry to help him get "out of this mess" created by Perez's drug debts. When Terry was again recalcitrant about showing the money, Perez urged Terry to find a way, saying that "this is the opportunity of my lifetime." Perez also suggested that he might seek out other customers for the cocaine.

On August 4, Terry told Perez that if his customers gave him the money, Terry would have to accompany Perez to the sale. Terry later told Perez that he only wanted to purchase one kilogram of cocaine. Perez agreed, and arrangements were made to meet that evening. That evening, at the agreed meeting point, Terry was arrested with approximately $ 19,000 in cash in his possession.

The final indictment contained seven counts against Terry and/or Perez. Count One charged both Terry and Perez with conspiracy to distribute powder cocaine and crack cocaine in Boston from January 1996 to July 1998, in violation of 21 U.S.C. 846. Counts Two and Three charged Perez with distribution of cocaine in connection with the February 12 and March 11, 1997 sales to Bennett in violation of 21 U.S.C. 841 (a)(1). Counts Four, Five, and Six charged Terry with distribution of crack cocaine for the June 12, June 24, and July 30, 1997 sales to Bennett, in violation of 21 U.S.C. 841(a)(1).¹ Count Seven charged Terry with attempted possession of crack cocaine with intent to distribute in connection with the final August 4, 1998 attempted purchase, again in violation of 21 U.S.C. 841(a)(1).²

At trial, Terry did not challenge the facts charged but instead presented an entrapment defense. Terry argued that Bennett threatened him, leading him to make the 1997 sales, and that Perez made undue appeals to sympathy to induce him to undertake the 1998 attempted purchase. The entrapment defense only responds to Counts Four to Seven, and does not go to the general conspiracy charge in Count One. In closing, Terry's lawyer argued that Bennett and Perez used "excessive pressure, threats, and appeals to sympathy" to induce Terry to commit the crimes charged. At the conclusion of trial, the district court instructed the jury on entrapment, giving a full charge. However, the court later made a correction to the jury verdict form, and then expanded upon the entrapment instructions by use of example, this time omitting reference to "appeals to sympathy." The alleged impact of this correction and expansion provides one of the bases of this appeal. The jury returned its verdict, finding Terry guilty on all counts.

At the sentencing hearing, the district court determined that Terry was responsible for 2.7 kilograms of crack cocaine and 370.9 grams of powder cocaine, and therefore set Terry's offense level at 38. The district court also determined that Terry's prior drug conviction³ put him in criminal history category IV. Together these provided for a Guidelines sentencing range of 324-405 months imprisonment. The court denied Terry's request for downward departure and sentenced Terry to 324 months, the low end of the applicable range.

II.

A. The Jury Instructions

Terry argues that he was entitled to an instruction that entrapment may consist of "an undue appeal to sympathy." Under United States v. Gendron, 18 F.3d 955, 961-62 (1st Cir.) cert. denied, 513 U.S. 1051, 130 L. Ed. 2d 558, 115 S. Ct. 654 (1994), playing upon defendant's sympathy is indeed one of the methods of entrapment this circuit recognizes.

Here, the judge did give exactly that instruction. Initially the court charged the jury that there was no entrapment if the government proved beyond a reasonable doubt that the officers and undercover agents:

did not persuade or talk Mr. Terry in to committing the crime. Simply giving someone an opportunity to commit a crime is not the same as persuading the person to commit a crime, but excessive pressure by the law enforcement people, the undercover informants, or an undue appeal to sympathy, can be improper.

Terry challenges not this charge but rather a problem that arose later.

Terry contends that the jury may have been misled by a sequence of three events which, he says, made it appear the judge told the jury that this earlier instruction was in error. At the end of the instruction the judge told the jurors that he would be back to them, after he talked with counsel, if there were any matters needing clarification or mistakes needing correction, ending his instructions by stating

Now, I may have left something out, I may have explained some aspect of the law improperly, and before we let you retire and call off the alternates the lawyers get a chance to call that to my attention, so I'll see counsel at the side bar.

At the ensuing side bar, Terry's counsel objected to the entrapment instruction as inadequate, and asked that the court more fully describe examples of improper inducement as laid out in Gendron and United States v. Gamache, 156 F.3d 1 (1st Cir. 1998). Counsel stated that under ...