*1 1512 553, Mathis, 752 F.2d decree”); v. Adams America, Sununu, Cir.1985); v. Garrity UNITED STATES (11th 554 Plaintiff-Appellant, Cir.1984); v. (1st Miller 727, 738
752 F.2d Cir.1980); 346, (5th 348 Carson, F.2d 628 v. Educ., F.2d 611 Board v. Northcross BEAL, Dewayne Floyd Defendant- denied, 447 Cir.1979), cert. (6th 624, 637 Appellee. 2999, 3000, 64 L.Ed.2d 911, 100 S.Ct. No. Dela Pennsylvania v. (1980); see 862 Council, Valley Citizens’ ware Appeals, United States 3095, 92 L.Ed.2d 106 S.Ct. Tenth Circuit. citing rights (non-civil (1986) April ap Miller, and Northcross Garrity, court ob Northcross As the proval). to reasonable
served, devoted “Services ... are decrees court’s
monitoring of the essential They are
compensable services. plaintiff's long-term success Northcross, at 637. 611 F.2d
suit.” district argues that the
The State compel with a motion granting
erred discovery attorney’s fees associated The district court’s proceedings.
for these attorney’s pursu fees
Order, awards 37(a)(4), enumerated
ant to Fed.R.Civ.P. counsel that ob or its by the State
acts process. litigation We
structed find the district the record
reviewed supported. We well conclusions
court’s therefore, district court
hold, granting its discretion
not abuse awarding attor compel and
motion to the motion.
ney’s associated fees severe that even has held
Supreme Court a district court are available
sanctions and deter abuse penalize 37 to
under Rule Hock process. National discovery Club, Hockey Metropolitan League v. ey 639, 643,
Inc., 427 U.S. curiam). (1976) (per L.Ed.2d 747 here, Order district court’s affirming Gates our statement reiterate
we (10th Cir. 516, 517 F.2d put come 1985): now time has “[T]he Rule tiger 37].”
teeth [of
AFFIRMED.
Despite details, differences over the essential dispute. facts are not in Roger Silva, whom the defendant met while the two imprisoned were in was arrested by Utah police charge on a of distributing cocaine. Realizing “facing he was a 1-to- 15-year sentence” and would remain in jail, (R I, 83), Mr. Silva contacted police officials to see they whether would be inclined to make a deal with him. Eventually, Mr. Sergeant met with Carroll an Schwendiman, David J. Asst. Atty., City undercover Salt Lake narcotics officer. (Paul City, Warner, Salt Lake Utah Sgt. Mayes explained he was interested Atty., brief), with him on plaintiff- for in arresting large narcotics and stolen appellant. property dealers, and he would work with Cook, Craig Utah, City, S. Lake Salt for Mr. Silva to effect those arrests. In ex- defendant-appellee. change participating in large a scale “sting” operation which eventually snared MOORE, ALDISERT,* Before fourteen persons, Mr. promised Silva' was McWILLIAMS, Judges. Circuit “that get I would all my charges dropped and dismissed completely against me if I MOORE, JOHN P. Judge. Circuit (R wanted to I, 9). work for them.” While Mr. appeals Silva did order not believe given he was granting “guarantee” Floyd Dewayne charges defendant Beal’s his would be dis- missed, acquittal. his “assumption” it was In two indictment, more transactions arranged, defendant was the better charged the deal participating get (R he would police. two discrete' I, 82). transactions which having resulted of a any sale promises Silva, (R II, controlled 8), to an to Mr. po- undercover but over the lice officer. Mr. three Beal admitted the month course of their relationship, nature give $1,590 and substance “just Mr. Silva keep transactions but him (R II, 9). going.” claimed that his participation was the re- entrapment sult of by government infor- Sgt. Mayes instructed Silva to con- Mr.. mant. defense was the tact people known to Mr. Silva to see only issue submitted jury, they were engaged in currently guilty returned verdicts on the first so, activity. criminal If Mr. Silva was to count but on the second. call for further instructions. Sgt. Mayes cautioned, however, Ruling upon motion for was: acquittal, the trial court con- cluded as a matter of law the two very careful in I didn’t want tions inseparable, were and the trying anyone selling to coerce into induced to commit the second transac- I didn’t excessively want him the same influence pestering which caused people try them to him to commit the drugs, first. Resolution sell didn’t any- want him to use whether, lies simply thing, threats, nothing. no no Either case, facts of this correctly business, trial court they they want to do will do ruled that the business; to, two if they were don’t want of one course conduct. We conclude won’t. And I made it very clear to him did, that it affirm the that, we that he needed to understand he said that he did. * Ruggero Aldisert, Circuit, The Honorable Appeals sitting by desig- J. United for the Third Judge States Circuit for the . States nation. supplied had man who mind, it to the returned II, 8). those instructions
(R With (R II, people the substance. number contacted Beal. including later,” five hours “four to Within 25), to reach had *3 attempts Mr. Silva and His first occasions, Mr. he could several Mr. Silva testified On conversation. unsuccessful. I, 25), call, (R moth- to defendant’s talk who made managed to not remember Silva him. messages, called and Mr. Silva he left Beal testified whom but Mr. er with Sgt. family’s from messages II, 87). Acting instructions others, (R he left II, 151). ( R to make an- police wanted recording machine. telephone Silva, Beal, Mr. Mr. told Beal, to avoid Mr. Silva buy tried from other Mr. id., name) attempts, Mr. (Sgt. Mayes’ undercover after at least seven but “Drew” (R I, 26). in achiev- more.” eventually get successful some to Silva was “wanted a will- apparently Mr. Beal indicated ing quest. his When Sgt. serve, Mr. Silva recalled ingness to who disagreement over Although there up him to set Mayes who told on No- call, was made placed contact and Mr. Silva arranged that It was tion. During that conversa- 1989. vember Mr. Beal at a con- meet Sgt. Mayes would he was interested tion, explained home the latter’s store near venience According methamphetamine. obtaining p.m. 11:00 go- “he responded, Silva, defendant to working arrived, school, and Mr. Sgt. Mayes school and Silva ing to to When get got he in their time; waiting. me could He he told but Mr. Beal was right nearby. some, none them to a house he didn’t directed me but truck and 1,12). (R Defendant’s the same vehicle that time.” the house was there at Parked at differs, but the first course met had version conversation house, reply Sgt. Mayes was Mr. Beal’s indicated agree that both transaction. Mr. and occupants, sell Mr. Silva. “Bob” drugs to to the had no introduced he to hour would call back responded approximately After Silva then “Karen.” supply'. minutes, a source of Bob announced forty-five if Mr. Beal obtained see and therefore, source; locate his unable to day, attempts on next several After to Silva, agreed Mayes, and p.m., Mr. Silva 3:00 to 4:00 at about touch promise a to leave 14). Mr. Beal. reached day. next Sgt. “cousin,” reality inwas who stated his day next called coming agreed, to town wanted Mr. Silva As (.8 meeting the con- oz.‘meth- arranged “crank” “eight another buy an ball” p.m. Silva, 3:30 approximately According to Mr. store at amphetamine). venience there, Mayes, Mr. Sgt. arranged (R ll, From day and later that Beal called Mr. the resi- again went Silva, Mr. Beal p.m. at 6:00 to meet house, At and Karen. of Bob dence drove to Sgt. Mayes and Mr. was concluded transaction proper time meeting place at money of which the course Sgt. Mayes to up Mr. Beal who told picked outside, re- Sgt. Mayes, went place where car to follow another later substance bag turned they ar- When would occur. transaction n methamphetamine. as identified $250, rived, gave Mr. Beal all Silva, Sgt. Mayes, and occupants Mr. defendant took which the of what took a different version car, short testified returning after a of the other not- differences Those later house. packet wait with agreed Mayes and Silva withstanding, both methamphetamine. proved to be the sub- Sgt. Mayes received that before a “commission” that as Mayes testified injecting it stance, “tested” transaction, took a making the into his arm solution in a placed it “pinch” of the substance II, 25). (R bag. II, 19). contents (R Defendant wrapper. cellophane Bob who it doing stated was so and pinch, but keep the he did not testified injection. (R II, 89). Sgt. Mayes here, made the that each count of the indictment is a left, concluding and Mr. Silva then the sec- separate charge regarded as such by ond transaction. jury; therefore, it is not unreasonable to have determined the defen- Throughout testimony, Sgt. Mayes his dant was predisposed to commit one reiterated that at no time did Mr. Beal transaction predisposed but was appear reluctant to deal with him or other- the other. wise indicate Mr. Beal’s actions were not Silva, of his free will. Mr. The district court entertained extensive however, repeated statements made to him argument on the motion. After consider- by Mr. Beal that he dealing was not in ing arguments sides, of both *4 “dope,” working and that was stated: Indeed, to school. Mr. Silva testified that Well, I was troubled this when transaction, after the second Mr. Beal stat- jury verdict came back. It does seem ed, know, Roger, “You I’m not selling to me that this is a case in which there dope. (R I, I done you.” this as a favor to strong original was inducement and 44).1 that in fact this defendant was preyed n part, For his jury Beal told the upon by government informant to do arranged both just transactions rid something that was not predisposed to (R II, of Mr. Silva and his insistent calls. do. I think he had his played weakness 81). Indeed, he even aborted a final at- upon, beguiled, he was and it is a matter tempt by Sgt. Mayes Mr. Silva and to make logic recognized that and by taking transaction money held him to entrapped be on the first proffered by Sgt. Mayes running away charge. apparently with it. He thought by doing I think charge that the second came so he again would not be asked to broker a ballpark, the same course of (R II, 132). transaction. Neither his theft conduct as the first product and was the money of the purpose nor his disputed. was of the inducement. only maintained that his inter- Upon conclusion, the basis of this brokering est the two consummated set aside the verdict the second transactions was to make a connection be-
tween Mr. Silva and Bob so that Mr. Silva
It is from
government
that order the
ap-
satisfy
could
his needs from that source
peals.
(R II, 81).
and leave Mr. Beal alone.
The
entrapment
said at no time
defense of
they
when
was first
presence
were in Bob’s
recognized
did Mr. Beal
for federal
make
courts in Sorrells v.
any effort
210,
effect that
In United
287 U.S.
connection..
contrast,
recognized
(1932).
from their
established
however,
That,
is
con-
II.
course of
“the same
charged in Count
showed
evidence
the
ir-
appeal.
Except
Since
defen-
parties.
to the
the
irrelevant
between
duct”
events,
the
guilt of
the
his factual
admitted
in the chain
dant
details
relevant
proved
prosecution
the
describ-
participants
charges, whether
testimony of all three
government
The
an issue.
during
is not
two transac-
its case
the
ing their conduct
oblique
in an
Furthermore,
argument,
that testi-
the
uses
is the same.
tions
power
district court's
in circum-
attack
no variation
mony discloses
maintaining
acquittal,
grant a
Beal had
show
that would
stances
evidence
reweigh the
had to
court
two transac-
the
the
mind between
change of
credibility of
of the
tending
its
testimony
substitute
prosecution’s
The
tions.
begs
is-
argument
the
The
witnesses.
the
predisposition notwith-
defendant’s
to show
essentially
sue.
shown
standing, the
are
facts
regarding both
nature
judg
ruling on the
testimony
Moreover,
of induce-
tions.
held,
aas
the trial
acquittal,
ment
during both
applied by
ment
en
law,
the defendant
matter
fundamentally the same.
is
Despite
counts.
trapped on both
contrary,
to the
argument
government's
dispute that
no real
is
upon weighing
depend
ruling
Al-
of both transactions.
the initiator
upon
or a
evidence
of the
have called
though he stated
contrary,
To the
credibility
transactions,
witnesses.
arrange the
him to
founded
order was
trial court’s
calls himself.
may have
stated
relating events
undisputed evidence
equivocal.
Therefore, his version was
during
period
twenty-four hour
during
Mr. Beal’s demeanor
descriptions of
occurred.
drug transactions
which
given
events
of those
course
Both
same.
Silva were
and Mr.
holding is the
court’s
key to
trial
willing participant,
was a
implied
charge came
second
“the
statement
during
his demeanor
neither indicated
ex-
colloquialism
ballpark.” That
same
two events
proof
differed. As
of dif-
It makes no difference that the sales for
predisposition,
ferent
evidence of
petitioner
which
was convicted occurred
disputed
seizes on the
testimo-
after a series of
They
sales.
were not
ny
injected
that Mr. Beal
during
independent
himself
acts
to the in-
That, however,
the second transaction.
ducement but
of a course of conduct
distinguishable from the testimony he took
which
was the
of the induce-
“pinch” of
the first
ment.
transaction only by degree.
Id. 822. In
present
case, the second transaction was no more a
These circumstances
change
show no
discrete crime than were the separate sales
the attitude of the defendant before the
in Sherman.
first and the second transactions. There is
nothing contained in
government’s
Moreover, the course of conduct in this
proof
provides
a factual distinction
case was completed
period
over a
ap-
between defendant’s manifested state of
proximately twenty-four hours.
In Sher-
mind
Thus,
those transactions.
we man,
the transactions between defendant
ample
there is
support
believe
in the uncon-
informant
over
extended
testimony
troverted
conclude
period. The concentration of Mr. Silva’s
“course of conduct” of the two transactions
efforts
the shortened time span in this
same.
merely
underscores the validity of the
district court’s conclusion that Mr. Beal
Moreover,
evidenced
number of
was “in the
ballpark”
same
and was acting
placed
home,
calls
to the defendant’s
it
under the
influence
induce-
disputed
is not
that Mr. Silva’s attitude
*6
ment.
was,
towards the
least,
per-
sistent. Motivated as he was to make as
Having concluded the trial court
many
possible
contacts as
to save himself
correctly reasoned, under the facts of this
prison
to obtain money
keep
“to
case,
the discrete acts of the defendant
going,”
Mr. Silva was sufficiently en-
were
of
same
the
continuum of events
produce
dowed with motive to
“strong”
the
motivated by
influence,
we do not
by
inducement noted
the trial court. Be-
reach the
presented
other issues
by the
cause the two counts
upon
were founded
parties. Mr. Beal would like us to hold as
conduct,
one continuous course of
it follows
general
occurs,
rule that once entrapment
original
the
that
inducement which “be-
defendant’s
willing acts are
guiled” Mr. Beal carried over to the second
immunized
culpability.
We are not
charge.
States,
Sherman v. United
356 persuaded to
so.
do
We shall follow this
(1958).
78 S.Ct.
In
that
the line ends
government’s
legal
with
con
infor-
clusion that
this case the
mant met the
under the facts of
defendant at a
office
doctor’s
where
two
inducement and not
for
defen
treatment of
dant’s
drug
predisposition provided
persuasion
addiction. After
motive for
informant,
his otherwise
criminal acts.
agreed
to obtain
charge.
cion
that even
entrapment,
tions of this
but
of
arrested
drugs for
agreed, holding:
The Court selling
also the
of
discrete
though
narcotics. The
him,
charged
informant
drug transactions,
nature,
only sharing
After several transac-
charges
contended
defendant the defendant was
only
applied
separate
were founded
defense was
the coer-
to each
the cost
counts
Jacobson v. United
112
413]
L.Ed. cute.”
innocent
mission in
As the
Law enforcement officials
S.Ct.
alleged
[435]
they “implant
Sorrells
Court most
person
[(1932)]....
order that
offense and induce its com-
under any motion determine
shall *7 if the granted be trial should new
for a vacat- is thereafter acquittal America, STATES UNITED grounds reversed, specifying the or ed Plaintiff-Appellee, motion If the determination. for such conditionally, granted new trial is affect does not order thereon GOSNELL, Bobby Defendant- G. If the judgment. finality of the Appellant, condi- been trial has newa is reversed tionally proceed unless shall new appeal, the trial Farms; Rose; C. Wil- Carolyn View Ute or- has otherwise appellate court Snyder; Kruse; son; Wanda Val J. has If such motion been dered. Bank; Savings and State Centennial appellee on conditionally, the Revenue, De- Colorado, Department of denial, and if in that error assert fendants. subse- appeal, is reversed No. accordance be in shall quent proceedings appellate Appeals, court. the order States Tenth Circuit. July eff. (As Feb. amended 99-646 Pub.L. 1966; Nov. April 3607.) 54(a), 100 Stat. § a letter 29(d), Beal sent of Rule
In view neces- pointing out
to the district new for a his motion ruling
sity for