United States v. Richard Scott McLernon Kido Yaqui, Sherri Louise Farrell, Miguel Angel Carranza, and Marco Antonio Valdez-Cota

nothing it is manifest the law left ‘conscience or discretion’ * * * Court. “ * * * should, therefore, be Care reviewing not to re- in the court taken upon ques- ruling below such

verse fact, except in a clear case.

tion the chal- of the issue

affirmative

lenger.”

Stewart, hold that the 278 F.2d at 678. We acted within the

district court bounds its it to strike the

discretion when refused

prospective juror for cause. The record adequate-

demonstrates that the trial court

ly questioned juror during voir dire to impartiality.

assure PART, IN

AFFIRMED IN REVERSED

PART and REMANDED.

Wellford, Judge, opinion Circuit filed concurring part dissenting part. America, UNITED STATES

Plaintiff-Appellee, McLERNON, Yaqui, Kido

Richard Scott Farrell, Angel Miguel

Sherri Louise

Carranza, and Marco Antonio Valdez-

Cota, Defendants-Appellants. 83-3521, 83-3519 to 83-3549

Nos.

and 83-3550. Appeals,

United States Court of Circuit.

Sixth

Argued April 1984. Sept.

Decided Rehearing En Banc

Rehearing and 20,1984. Dec.

Denied

H01 Piñales, argued, Cincinnati, Martin S. Ohio, Margolin, (LC) Ephraim San Francis- co, Cal., defendant-appellant for in No. 83- Christopher argued, K. Barnes Atty., Anthony Nyktas, W. Asst. U.S. Cincinnati, Ohio, Atty., plaintiff-appel- for lee. Summers, Summers, Potts,

William L. White, Kampinski, Cleveland, Ohio, Tittle & defendant-appellant for in No. 83-3520. Giuliani, Cleveland, Ohio, Elmer for de- fendant-appellant in No. 83-3521. Kenner, Encino, Cal., David for defend- ant-appellant in No. 83-3549. H03 Francisco, Cal., Yaqui people ed to Margolin, San who were threaten- Ephraim ing him: defendant-appellant in for No. 83-3550. mean, power I people, these these ain’t WELLFORD, and Circuit Before JONES nickel-dime, they City run Atlantic and CELEBREZZE,

Judges, and Senior Circuit mean, they’re country. all—I all over Judge. (RTT They’re heavy. Tape No. 14:8- 10). JONES, Judge. NATHANIEL R. Circuit April, 1982, In Yaqui Hamlin told over Appellants Marco Antonio Valdez-Cota phone that he if Yaqui would be killed (Valdez), (Car- Miguel Angel Carranza-Baez arrange could not Yaqui a cocaine deal. ranza), Yaqui (Yaqui), Kido Richard Scott carrying testified that he Hamlin observed (McLernon) McLernon and Sherri Louise gun wearing bullet-proof vest. He (Farrell) appeal their Farrell convic- and, began fearing thus, exagger- Hamlin conspir- tions in these consolidated cocaine ated his cocaine connections order to Upon acy cases. careful consideration of pressure. ease the myriad presented by ap- issues their 1982,Yaqui In late major made a cocaine judgment peal, we conclude that negotiating contact while a business deal part, affirmed in district court should be for distributorships. Yaqui met Valdez part part, reversed in and remanded $2,000 and the two sent to Hamlin so he opinion. instructions consistent with this negotiate could come to Phoenix and a deal. 1974, agent In Hamlin of the Charles January 13, 1983, Yaqui On and Hamlin Drug Enforcement Administration traveled proceeded met with Valdez to discuss a Phoenix, Arizona where he befriended Valdez, cocaine through deal. Hamlin told Yaqui. very The two became close friends Yaqui interpreter, as that he had mob con- eventually engaged an Indian “blood nections the East. Hamlin insisted that Ari- brother ritual.” Hamlin left any drug delivery place would have to take phoned zona for Cincinnati. Hamlin then preferred Ange- Cincinnati. Valdez Los Yaqui say drug that he had some con- meeting. les and left the Hamlin returned Yaqui keep eyes tacts and asked “to Cincinnati, angered Yaqui for what open possible drug connections.” Ya- appeared to be another broken deal. however, qui, pursue any did not such con- January, Yaqui Later in Valdez visited at In early again nections. Hamlin Yaqui’s shop. Yaqui told Valdez that he Yaqui explain called to that he in fi- was agreed go feared Hamlin. The two to Chicago syndicate nancial trouble with Cincinnati to talk with Hamlin and his asso- group begged bring him and about a ciates. Valdez called Hamlin and told him drug transaction. Hamlin called his they that intended to make a sale of ten anything to do he Indian “blood brother” if everything kilos on a trial basis and went help. could to they January well could sell 300 kilos. On 25, 1983, Although Yaqui prior experience no had Hamlin next Valdez met and Ya- cocaine, help qui Airport he tried to Hamlin. at the Cincinnati and then intro- Yaqui agents instructed in cocaine transac- duced DEA Hamlin undercover Stuart and continually pressured drug him to at- Palma tions and as dealers. Hamlin informed March, Yaqui Yaqui dangerous informed tain one. that these men were had, desired, as Hamlin Yaqui that he that one of them was a “hit man.” Hamlin contacts, only played cocaine includ- told that he an individual Stuart interme- secured Langley. spoke diary Hamlin to these role and that Valdez controlled the ing Tony Yaqui he had on one occasion traveled to cocaine. stated that not seen contacts cocaine, they formalize a deal. But that try 300 kilos of but knew Phoenix Agent through. replied fell Hamlin then be- were available. Stuart that these deals Yaqui by telling large quantities many him he trans- gan pressure more wanted however, parties, tentatively syndicate debts. Hamlin describ- actions. The about that him of his objections, Valdez had told Valdez kilo sale of cocaine. agreed to a ten lengthy past was of cocaine. agents that the cocaine involvement with told following day, quality. On the superior February phoned the On Valdez 26,1983, the men made a tentative January the cocaine had arrived. Val- agents that delivery plan. garage in suggested rent a dez Phoenix. returned to Yaqui and Valdez They rented two which to make the deal. 28, Agent phoned Ya- January Stuart On Fairfield, After the couri- garages in Ohio. from to remove himself qui. In order arrived, that he ers Stuart told Valdez in the cocaine transac- further involvement gave he wanted to see cocaine before an tion, Yaqui that he faced told Stuart money. agreed. He went him the Valdez investigation and was ad- murder Arizona “Scott,” get his hotel room to the couri- for a attorney to “lie low” by his vised er, McLer- who was later identified as Scott January Hamlin called Ya- while. On men all to the rented non. The traveled deal Yaqui the cocaine qui. stated packages took the out garage. McLernon in- not be on but that he would was still compartment. secret Stuart of a backseat 31, Yaqui January told Stuart On volved. placed tested the cocaine and then Valdez arrange talk to have Stuart would agents arrest. DEA and McLernon under Yaqui resisted directly with Valdez. Carranza, subsequently arrested who had stay in the pressure to constant Stuart’s After his ar- remained his hotel room. deal. rest, agent asked DEA McLernon was Valdez then contacted Valdez. Stuart had girl about the with whom he Powell expressed displeasure with all of travel- country. agreed to driven across the He agreed to meet with ing required, but agents take the to his hotel where back informed agents Palma and Stuart. Valdez Farrell Once the hotel Sherri waited. longer in- agents Yaqui no was room, pad and a agents seized a note February 9, agents volved. On calendar, were admitted into both of which Angeles Los called Valdez Carranza’s voluntarily accompanied Farrell evidence. told Palma that the ten apartment. Valdez ques- offices and was to their through soon as he go kilo deal could as Agent fin- extensively. After Stuart tioned Palma, arrangements. make some could Farrell, placed questioning she was ished Stuart, agreed to make the deal and Valdez day, Yaqui next was under arrest. On the in Cincinnati. agents. in Phoenix federal arrested 12, 1983, February and Palma Stuart On trial, After indictment and Valdez airport. at the Cincinnati Val- met Valdez conspir guilty found of one count agents that the cocaine dez told the would § 846,1 acy under 21 U.S.C. twelve counts compartment in a secret be delivered telephone unlawful use under U.S.C. by a man driven from the west coast car § 843(b),2 counts of interstate travel to two Valdez also named Scott and a woman. activity promote unlawful under 18 U.S.C. large opera- a cocaine stated that he had § trial, possession repeated 19523 and one count of with Palma testified at over tion. subchapter felony any provision under of this § 1. 21 U.S.C. 846 separate chapter. subchapter II of this Each or attempts conspires Any person who or facility sepa- a of a communication shall be any subchapter use defined in this commit offense pur- by imprisonment For punishable or fine or both under this subsection. rate offense subsection, punish- may maximum poses not exceed the the term “communica- which of this offense, prescribed the commission pri- for the facility” any public ment means and all and tion object attempt or con- was the of the of which useful in the instrumentalities used or vate spiracy. writing, signs, signals, pictures, transmission of mail, includes tele- or sounds of all kinds and 843(b) 2. 21 U.S.C. § wire, radio, phone, means of com- and all other any knowingly person for It shall be unlawful munication. intentionally any communication facil- to use or facilitating committing causing ity or or in 1952(a) U.S.C. § 3. 18 any constituting a of act or acts the commission 404(b). Rules of intent to distribute cocaine under U.S.C. Evidence 403 and § that, 841(a)(2).4 guilty was found of contends as Carranza statements by co-conspirator made a conspiracy one of under 21 U.S.C. in the course of a count § 846, conspiracy, count Valdez’s remarks were one of unlawful interstate admiss- § able under Federal Rule of travel under 18 1952 and one Evidence U.S.C. 801(d)(2)(E). possession intent to count of with distrib § 841(a)(1). ute cocaine under 21 U.S.C. Circuit, co-conspirators’ Yaqui guilty of count was found one of govern statements are if admissable § conspiracy under 21 McLer U.S.C. 846. preponderance ment shows of the non found of of guilty one count con (1) (2) conspiracy existed, that § 846, spiracy under count U.S.C. one of against that defendant whom the hear unlawful interstate travel under 18 U.S.C. say is offered was a member of the con § 1952, possession and one count of (3) spiracy, that the statement was made intent to distribute cocaine under 21 U.S.C. during (4) conspiracy, course of the and § 841(a)(1). guilty Farrell was found of that statement was made further conspiracy one count under U.S.C. conspiracy. ance § 846, one count of unlawful interstate Hamilton, (6th Cir.1982), § travel under 18 U.S.C. 1952 and one cert § possession count under U.S.C. 844. parties agree

Judge Rubin sentenced defendants Valdez requirements that the first three were met. years; and Carranza defendants contend, Appellants however, that years, McLernon Farrell to 5 and de Valdez’s statements were not “in further Yaqui years. fendant to 15 conspiracy. They ance of” the admit that Valdez told the he had been I years, the cocaine business he Valdez’s Pre-Arrest Statement large organization, had and that had Appellants initially just large contend the dis- shipment. received a Such state admitting ments, contend, trict erred in pre- appellants court Valdez’s were directed concerning lengthy securing arrest statement larger toward transactions after history large in cocaine accomplished. traffic and his co- trial had deal been We organization. They caine statements, however, assert those find that those were (1) designed gain statements were not made in further- also trust and assur (2) unreliable, ance conspiracy, co-conspirators. of a They provided ance of in (3) hearsay, (4) negotiations were double peaked were inad- centives for inter prior as conclude, therefore, missable bad acts under Federal We est. that the dis- foreign gambling, liquor Whoever travels in interstate or com- on which the Federal excise facility narcotics, any paid, prostitution merce or uses or interstate for- tax has not been or commerce, mail, eign including the with intent offenses in violation of the laws of the State to— are or of committed the United (1) States, extortion, proceeds any (2) bribery, distribute the unlawful or or arson in activity; or violation of the laws of the State in which com- (2) any commit crime violence further mitted or of the United States. (c) any activity; Investigations unlawful or of violations under this sec- establish, (3) promote, manage, involving liquor otherwise tion or narcotics shall be con- on, carry promotion, manage- supervision Secretary or facilitate the ducted under the establishment, on, ment, carrying the Treasurer. activity, unlawful 841(a)(2) 4. 21 U.S.C. § performs attempts perform and thereafter or (1), specified subparagraphs acts in of the Except subchapter, as authorized this it $10,- (2), (3), shall be fined not more than any person knowingly shall be unlawful for or imprisoned years, 000 or for not more than five intentionally— create, or both. distribute, dispense, possess or or this, (b) activity” in As used section "unlawful dispense, with intent to distribute or a counter- (1) any enterprise involving means business feit substance. court did 403. The district finding that Val- See Fed.R.Evid. trict court did not err allowing such made in furtherance not err evidence. dez’s comments were conspiracy. of the also contend that Val

Appellants II should have pre-arrest dez’s comments Sufficiency Support of Evidence to because violated their excluded been and Absence Valdez’s Conviction right to confrontation. Amendment Sixth Entrapment held, however, that evidence This has co-conspirator’s as statement admitted a sufficiency Valdez contests 801(d)(2)(E) does not violate Rule under un- support his convictions for evidence clause. Amendment confrontation Sixth telephone of the in violation of lawful use Marks, v. 585 F.2d 164 United States § 843(b). argues Valdez also 21 U.S.C. Cir.1978). split as to The Circuits are his conviction for such use was 801(d)(2)(E) compliance with Rule whether entrapment. result of the Sixth Amend automatically satisfies § 843(b) Because this Circuit requirements. renders unlawful ment U.S.C. does, however, the admis knowing “any it use of has held that or intentional committing case was facility remarks or in of Valdez’s communication sion causing facilitating commission of not error. or constituting felony____” a any act or acts McLernon Appellants Farrell and deny know Appellants do not that Valdez that Valdez’s statements further contend intentionally telephone; ingly and used hear constituted double concerning them not “facili they contend instead that he did however, 801(d)(2)(E), specifical say. Rule “facilitation,” the felony. prove To tate” co-conspirator’s statements ly exempts “telephone must show that the hearsay requirement rule. from meaning of comes within the common call personal knowledge have that the declarant difficult, easier’ or less facilitate—‘to make in such a waived. statements case is of his if a or aid. It is sufficient or to assist (3d Ammar, See, e.g., U.S. v. telephone to facili defendant’s use of a — Cir.), denied, U.S.-, 104 S.Ct. cert. of con possession tate the or distribution 344, find, there 78 L.Ed.2d We either his own substances facilitates trolled fore, hearsay preclude rules do not that the possession or distribu person’s another pre into evidence of Valdez’s the admission Phillips, 664 F.2d tion.” United States arrest statements. (citation omitted), (5th Cir.1981) 971, 1032 1136, 2965, denied, 457 U.S. prohibition against does the cert. Neither (1982). Appellants con prior 73 L.Ed.2d into bad the admission evidence calls, each of in several of the re tend that admission of Valdez’s preclude acts count, separate either Valdez case. v. which is in this United States marks or stated that (6th Cir.), nothing about cocaine said F.2d Pope, 574 co-conspirators] can do is wait.” 56 “all [the is insufficient (1978), that statement alone this Court held that the While conviction, it must be con support conspiracy itself ... does not “scope of the February in context. In calls on application the co- sidered necessarily limit 11, 14, either informed scope 15 and 16 Valdez exception.” The conspirator broad deal or of progress of the design, plan, relevant of evidence step in the con the next transaction. We conspiracy in the case nature of together, and those calls taken us, pri- clude that rendered Valdez’s before light favorable to the in the most The district viewed admissable. or involvement Strong, States v. conclude, government, discre see United court, was within its (6th Cir.1983), support the determining probative value 702 tion prejudice. jury’s verdict. outweighed of that high alternatively nonmanufactured, Valdez contends that measure of unlaw- his use of the convictions for unlawful tele ful activity. interstate See id. at 686. In through phone entrapment. Corbin, secured the Court recalled that the con- § 843(b)may found, A violation of be how gressional purpose enacting the Travel ever, defendant even when the does not organized Act was to curtail crime activity, initiate the calls. See United States v. rather than or individual isolated involve- (1st Cir.1981). Cordero, 668 F.2d in drug trafficking. ment 662 F.2d at 1072. Valdez relies States v. Arch Although share Corbin’s under- er, Cir.1973), (2d prop for the standing specific pur- Act’s Travel agents osition cannot that federal manufac poses and condemnation of Archer’s “sor- merely by placing ture federal crimes tele governmental overreaching, did” we con- phone suspect calls to individuals. As the particular clude that in this case the non- government states, however, correctly manufactured evidence a “continuous Act, Travel Archer involved the not course” of unlawful conduct was substan- phone. unlawful use of the We find suffi jury tial. The heard evidence which estab- § 843(b) support cient evidence to Valdez’s appellant lished that Valdez had control of conviction and that such was not cocaine, three-hundred kilos of had been through entrapment. obtained twenty years, business for had an organization imported four-hundred Ill month, to six-hundred kilos of cocaine each Travel Act Convictions and had a source South America. Evi- Valdez, Carranza, Appellants presented dence was also that courier's McLernon, and Farrell contend that their McLernon engaged and Farrell had in such engaging convictions for in a business previous deliveries on occasions. The enterprise in violation of Travel Act are conduct, thus, encompassed course of illicit supported by not sufficient evidence. country spanned the entire several § 1952(a),(b) prohibits 18 U.S.C. travel years. light in the Viewed most favorable “any interstate commerce further busi- government, Virgin- see v. Jackson enterprise involving ness ... narcotic.” ia, 307, 319, [a] To enterprise,” establish a “business (1979), the evidence of that government must show “a continuous support course of conduct sufficient to conduct,” just “sporadic course of not or these Travel Act convictions. casual involvement” in the unlawful activi- ty. Davis, United States v. IV Cir.1982). Appellants 202 n. 10 con- tend that their involvement with cocaine Multiple Conspiracy Instruction was not a “continuous course of conduct.” Appellants that the contend district They gain support proposi- some for that failing erred in instruct the court on tion from the Second opin- Circuit’s Archer possible multiple conspira existence ion and from the holding Fourth Circuit’s particularly prejudi cies. This failure was Corbin, in United v. F.2d 1066 contend, Yaqui, they cial to because he (4th Cir.1981). Archer, In the Court found clearly terminated role in the cocaine agents federal law enforcement en- completion. before transaction its gaged overreaching “sordid” when Yaqui’s withdrawal from transaction telephone “manufactured” interstate calls completion, however, its does bribery operation to transform a before local into “[Wjhen necessarily signal separate multiple Act con- Travel offense. federal prosecution spiracies. Warner, element in a under the Travel United States (6th Cir.1982), solely by Act is furnished undercover this Court ...,” 685-86, id. at the Court held stated “essence the crime of conspiracy agreement.” must demonstrate a We stated: 1108 Valencia, In required United 645 F.2d government is not States v. ... (2d denied, Cir.1980), reh’g 1158 en banc among the agreement prove an actual 1981), (2d 37 re Cir. in to establish conspirators order various aff'd after mand, (2d Cir.1982), 677 191 the Sec F.2d Conspiracies to single conspiracy____ a ond Circuit held in- narcotics, normally distribute person brought criminal a into a [i]f of sales and resales volve numerous indirectly being scheme after informed con- drugs until reach the ultimate govern- or statements a of conduct sumers, conspiracies. “chain” are often in- agent ment which could amount of on participants Because the successes ducement, person should be then that dependent level each of distribution is himself of the defense avail able of dis- upon the existence of other levels entrapment may person who just as tribution, conspiracy member of the each directly. receives the inducement in a participating that he is must realize added). (emphasis F.2d at In that 645 1168 if know joint enterprise, even he does not case, Valencia witnessed many participants. the identities of agents “push” into and “coerce” his wife (citations omitted). F.2d at 690 549 that, like selling The Court cocaine. found concluded, Warner Swiderski, F.2d 854 in v. United States single conspiracy not become

that a does (2d Cir.1976), relation- “the close marital merely “multiple conspiracies” because ship” defendants transformed between member did not know of become “each defendant governmental one inducement in further all of the activities involved In into the coercion of the other. absolute 549. conspiracy.” F.2d at ance of situation, finding jury’s that Va- such a a Gravier, 706 v. also United States See commit “propensity lencia’s wife had a — ,.. (6th Cir.), denied, cert. F.2d the offense does not mean ... -, 104 S.Ct. 78 L.Ed.2d U.S. necessarily find that jury would [Valencia] Shermetaro, (1983); United v. F.2d at propensity.” States also had such a Cir.1980). 104, 108(6th pressure governmental The individual 1169-70. Indeed relationship special conspiracy upon are one member before us members marriage may overcome the will such as single enter charged participation with greater degree by to a another member regardless knowledge their prise actual relationship. The Second virtue of that or action in that of each member involved recognized potential insightfully Circuit enterprise. conclude that the district We exploitation special such relation- for the obligation no to instruct judge under the course ships by governmental multiple con possibility on operations. Id. of their covert enforcement spiracies. particularly 1168-69. The Court was operations governmental in which wary of V entrapment de- agents seek avoid the special by coercing one of a fense member Entrapment Indirect relationship incriminate the oth- in order to Appellants Valdez and McLernon 1169. targeted 645 F.2d at er member. in re district court erred contend that the risk, have To several circuits obviate doctrine fusing to on the instruct In entrapment expanded the defense. argues entrapment.” of “indirect Valdez Lee, 694 F.2d 649 States v. United transaction engaged that he this cocaine Cir.), denied, 1086, 103 cert. agent to him Yaqui because communicated (1983),the Eleventh 76 L.Ed.2d 350 McLernon Hamlin’s coercive statements. quoted approval, with but Circuit Valencia conspir participated in the contends that the fact distinguished its case based Carranza, “originated” who acy because he heard from the inducement Valdez, government officials. party made and not private heard from of threats Mers, F.2d at government agents. — (11th Cir.), special relationship Yaqui between and the -, other defendants which would make those (1983), clarified that Circuit its view that a defendants more vulnerable to coercive may entrapment defendant invoke the de pressure upon Yaqui. any Absent such if fense “the initiator of his criminal activi special relationship or third-party agency, ty acting agent govern is as an court, the district under the law in this (citing ment.” 701 F.2d at 1340 United Circuit, compelled to issue an “indi- Noll, 1123, (5th States v. 600 F.2d 1129 entrapment” rect instruction. We conclude Cir.1979); Garcia, United States v. 546 situation, therefore, that in this the district 613, (5th Cir.)), denied, F.2d 615 cert. 430 failing court did not err in to issue that 958, 1608, U.S. 97 S.Ct. 51 L.Ed.2d 810 instruction. VI thus, Entrapment, may occur as the re Entrapment by third-party sult of conduct agents or as Appellants Yaqui and Valdez governmental the result of through action further contend that the district court’s private See, e.g., citizens. United States v. “direct” entrapment instruction was un Russell, 423, 1637, 411 U.S. 93 S.Ct. 36 duly one-sided and prejudicial. In resolv (1973); L.Ed.2d Lopez 366 v. United ing this issue we must consider the jury 427, States, 1381, 373 U.S. 83 S.Ct. 10 charge “in its entirety and not on a sen (1963); 462 L.Ed.2d United States v. Sil by tence sentence basis.” United States v. vestri, (2d Cir.1983); 719 F.2d 577 United Smith, 759, 584 763 Cir.1978), (2d Cir.1982), Myers, States v. 692 F.2d 823 denied, cert. 922, U.S. 2030, 99 S.Ct. 961, 103 S.Ct. (1979) (citing, Cupp v. Naugh (1983); L.Ed.2d United States v. ten, 414 U.S. 94 S.Ct. 38 L.Ed.2d (6th Cir.1966). Thompson, 366 F.2d 167 (1973)). The district court instructed Thompson, this Court held that the follow that: ing is a correct statement of the law: Yaqui defendants [T]he [Valdez] “person where a previous has no intent or assert that entrap- were victims of previous purpose no law, to violate the but charged ment as to the offenses in the persuaded is induced or law enforce Entrapment indictment. complete is a agents ment agents commit a crime or Entrapment defense. occurs when the government, entitled is to the de government’s deception actually implants entrapment.” fense of unlawful design the criminal in the mind of a added) (emphasis at 175-76 (referring to person defendant. ready Where a is instructions); see also United States willing law, to break the the mere fact Ambrose, (6th Cir.1973). government agents provide ap- what adopted we have not While the indirect pears to be a opportunity, favorable or doctrine, entrapment upheld has participate, themselves, in the offense it- entrapment defense where the induce- self, entrapment. is not Unlawful en- by government ment is initiated officials or trapment only can result from the con- private acting agents citizens as their governmental agent, duct of a per- or a upon their or instructions directions. See acting upon son the instructions or di- Thompson, question 366 F.2d at 176. The any rection of law enforcement officer of resolve, therefore, must that we is whether the United States. officials in government this case entered activity stealth, Criminal is such that agency relationship Yaqui into an strategem and agents undercover are to induce defendants McLernon and order necessary weapons in the po- arsenal of committing into these Valdez offenses. lice officers. any to find are unable evidence that the We Yaqui private example, used For government federal as a when the suspects agent person engaged order to incriminate the other de- that a is in Nor is fendants. there evidence of a currency, sale of counterfeit it is not unwary agent trap for the crimi- cent and the entrapment for a offer, nal. and to else pretend to be someone directly through an informer or

either Similarly, at 78 S.Ct. 356 U.S. currency purchase counterfeit decoy Russell, United States v. party. suspected 1637, 1645, from such 36 L.Ed.2d (1973), that, Supreme Court stated “[i]t enforcement Note: The function law deception only the Government’s is when appre- prevention of crime and the is the design actually implants the criminal in the This function does of criminals. hension the defendant that the defense of mind of manufacturing of crime. not include entrapment play.” The district comes into government to The burden present court’s instruction in the case thus doubt the beyond a reasonable establish Supreme language in reiterated the Court’s entrapped. To de- were defendants Russell, and Sorrells. Sherman entrap- there has been termine whether Circuit, moreover, expressly has This the ment a line must be drawn between Supreme language in adopted that Court unwary and the trap the innocent nearly approving jury instructions identical unwary trap for the criminal. See, e.g., in the case at to those issued bar. instruction to be an accurate We find this Norton, 1072, States v. 700 F.2d United conglomeration Supreme of Court and 910, (6th Cir.), denied, 461 U.S. cert. the en- pronouncements on Sixth Circuit 1885, (1983); 103 S.Ct. 76 L.Ed.2d In trapment defense. v. United Sorrells (6th Leja, 563 F.2d 244 United States v. 435, 441, 210, 212, States, 287 53 S.Ct. 1074, Cir.1977), 434 U.S. (1932) Supreme the Court 77 L.Ed. 1263, (1978); United employees or that “officers reaffirmed (6th Eddings, v. 478 F.2d 67 Cir. [may] opportunities afford the Government 1973). Eddings, approved In we the trial for the commission of the of- or facilities hypothetical explain of a to a court’s use fense____ stratagem may Artifice and be entrapment of the de jury the dimensions engaged to catch those in crimi- employed 72 n. 1. fense. 478 F.2d at See also held, however, enterprises.” nal Smith, precise lan 584 F.2d at 763. The prosecution valid be- that an otherwise guage employed by the district court governmental entrapment where comes us, including hypothetical, its case before “implant in the mind an innocent agents Cir has been sanctioned disposition to person the commit al- Supreme We find cuit and Court. leged and induce its commission in offense in manner in the district no error they may prosecute.” 287 U.S. order that jury to the the issues court communicated In at 212-213. Sherman v. 53 S.Ct. that to consider in and standards States, 819, 2 United determining government dis whether (1958), Supreme Court fur- the en proved beyond a reasonable doubt legal parameters of the ther defined Yaqui. trapment of Valdez entrapment defense: Although we find the actual function of law enforcement language in this instructions apprehension of crime and the prevention proper, case to be we still must assess the Manifestly, criminals. that function placing propriety entrap the issue of manufacturing does not include the jury. In cases ment before where the activity crime. Criminal is such that bearing entrap on the issue of strategy necessary weap- stealth and are dispute, entrap ment is in the defense of police ons in the arsenal of the offi- jury. ment must be submitted See cer____ Carroll, (6th United States Cir.1975). entrapment

To determine has Because the issue of Valdez’s whether established, dispute” jury, “in and the entrapment line must be drawn was been instruction, could proper well have trap unwary for the inno- under a between the

lili entrapment, found the of his absence government strates engaged conclude the issue of his entrapment in conduct which “overbears an other- properly jury. was submitted to the person’s wise innocent will thereby induces him to commit a criminal act that We must further determine wheth disposed he was not to commit.” Yaqui’s er the entrapment issue was 539 F.2d at 906 (quoting properly placed jury. If States v. before Ambrose, (6th pertaining Cir.1973)). facts issue are not in real Jones, United States v. dispute, question entrapment may be Cir.1978), Sherman, taken this Court jury. ap from the reiterated with See proval Judge Sherman, U.S. at 78 S.Ct. at 821. In Celebrezze’s language in Supreme that, Hodge and concluded although Court concluded that the evi entrap entrapment usually presents dence of ment improperly placed jury question, such before the may because that evidence es defense be established as a matter entrapment tablished “as a matter of of law law.” where the presents no case, Id. at 78 S.Ct. at 821. In that evidence to meet its proving burden of dis government sought to position overcome the en beyond readiness a reasonable trapment by claiming petition defense doubt. 575 F.2d at 84. Sherman, See also er ‘ready complaisance’ “evinced a to ac 356 U.S. at 78 S.Ct. at 821. cede agents’ to” the requests. narcotics In accordance with Sixth Circuit 375, Id. at 78 S.Ct. at 822. In order to Supreme precedent, therefore, predisposition show a to commit the of we must determine whether “undisput the fenses, government the entered evidence of ed evidence” in this case was sufficient to petitioner's past narcotics convictions. De beyond establish a reasonable doubt that spite such prior evidence of involvement Yaqui defendant was induced to commit narcotics, Supreme

with the Court found disposed criminal acts he was not otherwise unsupported government’s claim that 906; 539 F.2d at Hodge, to commit. See the defendant was predisposed to violate Jones, 575 F.2d at 84. the narcotics laws. The Court discovered In determining whether the evi petitioner “no evidence that himself was in was, law, dence as a matter of insufficient trade,” and declared insufficient to es predisposition, establish we must view predisposition tablish a evidence that the light that evidence in the most favorable to defendant previously had been convicted of prosecution and resolve all reasonable possession sale and of narcotics. Id. inferences therefrom in its favor. Glasser Court, jury’s reversed the States, 60, 457, 315 U.S. 62 S.Ct. finding that the defendant had not been (1942). 86 Viewing L.Ed. 680 the evidence entrapped. entrapment order for an light, uphold we must jury’s case to reach in accordance with verdict unless no juror reasonable could Sherman, government present must beyond conclude a reasonable doubt that some evidence from which a could Yaqui predisposed was to commit the of conclude that predis defendant was fense charged. States, Burks v. United posed to break the law before he received 1, 2141, 437 U.S. 98 S.Ct. 57 1 L.Ed.2d the opportunity by government afforded (1978); Jannotti, United States v. 373, agents. Id. at 78 S.Ct. (3d Cir.), denied, 578 cert. 457 U.S. adopted This Court has Supreme 102 73 L.Ed.2d 1315 Court’s taking standard for the issue of entrapment jury. from a In United States Those Circuits which have ad (6th v. Hodge, Cir.), 539 F.2d 898 cert. degree dressed the kind and of evidence denied, 429 U.S. 97 S.Ct. 51 support sufficient to a predisposition find (1976), clearly stated that: ing have delineated several factors relevant

Entrapment is established as a matter finding. such a United States v. Ka undisputed law if the evidence demon- minski, (7th Cir.1983); Jan- 1112 employment discharge, pursued 597-98; orable United States v. notti, F.2d at 673 Bulk working” deliveryman Cir. for as a “hard

Reynoso-Ulloa, art- Corporation and an industrial 1977), Technical (1978). Predisposi Yaqui Douglas Company. L.Ed.2d for Aircraft ist stated, “by is defini have “YMCA tion, courts his time to the these then volunteered of mind tion, state problems,” ‘the defendant’s working with kids that have before government exposure Army. He initial Boys and the Salvation Club ” (em Kaminski, 703 F.2d at Army agents’ “donat[edj” to the Salvation himself predis either original). “One is phasis gift for he “had a he felt that because coming a crime commit posed 524a). (App. something, helping kids.” before government or one is contact into Yaqui’s This uncontroverted evidence Kaminski, F.2d at 1008. not.” reputation” reveals absolute- “character or determining a defend relevant factors for criminal involvement ly propensity no disposition include: prior ant’s governmental inducement. See prior to reputation of the defend- or the character Kaminski, F.2d at 1008. The record record; prior criminal ant, including any from which a reasonable void of evidence suggestion of the criminal whether Yaqui’s juror could have concluded by the initially made Govern- activity was him to reputation predisposed or character en- ment; the defendant whether conspiracy. illicit narcotics engage in an activity profit; for in the criminal gaged Moreover, conclusively demon- the record reluc- defendant evidenced whether dubiety with no strates offense, overcome commit tance to agent Hamlin initiated the unlawful activi- induce- repeated Government only by (RT 1169:4- ty. In a recorded conversation and the nature persuasion; or ment 10), “gave [Yaqui] instructions Hamlin first persuasion supplied the inducement drug open” possible keep eyes [his] the Government. 531a). time, (App. At connections. (quoting Rey Kaminski, F.2d at 1008 price nothing quality or Yaqui knew 1336); noso-Ulloa, 548 at See also United 531a). He had never (App. of cocaine. 152, Townsend, n. 3 any “kind of transac- with been involved Cir.), U.S. 531a). (App. involving cocaine.” tions 54 L.Ed.2d in- Yaqui become insistence that Hamlin’s factors, considering find ini- those In complete Yaqui’s and cocaine volved with government presented no tially that familiarity in or with of involvement lack reputation of the character tape played and recorded on cocaine were record, including any prior criminal Yaqui, suggestion of the jury. “The before juror could have a reasonable from which initially activity,” “was criminal predisposed to violate 21 he was found that Kaminski, 703 by the Government.” made § Sherman, Supreme In 846. U.S.C. F.2d at prior evidence of a criminal held that Furthermore, initially government insufficient matter of is as a record alone Yaqui to that his involvement suggested predisposition. 356 at establish law profitable. In cocaine would be us, at 822. In the case before many had unsuc- Hamlin on occasions after present evi- government did even cocaine cessfully urged Yaqui to strike a In- Yaqui’s prior criminal record. dence deal, Yaqui informed that he agent The undis- no such evidence exists. deed marketing and distributor- arrange could Yaqui instead that testimony reveals puted prod- and hair-care shampoo his ships for year old American citizen of forty-four is a net- promised distribution Hamlin ucts. origin who has lived Mexican-Indian for advertisements and television works Phoenix, had Arizona since birth. He has area. in the Cincinnati Yaqui’s products neither read and can formal education no indicate that taped conversations English. years Yaqui Several For three nor write generate co- Yaqui to induced agent Corps. in Marine After his hon- served quid pro 523.6a). quo Yaqui as a (App. caine transaction short time.” and only profits agent they business could became per- Hamlin so close 1510:7-12). (RT In provide. determining formed the Indian ritual of becoming profit the inducement whether bears “blood Yaqui brothers.” testified: upon Yaqui’s predisposition, we are mind- We became call what we blood brothers. government, ful the fact that the unlike We swore into ritual face that I criminal, “may offer typical as much as taught him, quite and he knew a lot any potential it wished to defendant.” Ka- it, my about would life be his life. minski, 703 F.2d at 1008. (App. 523.6a). Agent Hamlin Yaqui and If the amount offered is “a substantial frequently called each other “blood broth- offense,” inducement to a first ... Yaqui er.” Hamlin in introduced fact may negate normally inference family by stating: my “Here’s blood ready acquies- drawn from a defendant’s brother; going family; he’s one of the be suggestion cence to a that he commit a him just family.” treat like the Hamlin crime person as even a with no criminal Yaqui in “private” recorded conversa- predisposition may abandon his moral tions often stated that loved each oth- standards when the reward is substan- Yaqui In er. Hamlin told that he had tial. to return to tend dying Cincinnati to to his (citation Kaminski, 703 F.2d omit- hugged mother-in-law. The two each other ted). promised stay in close contact. marketing The distributorship oppor- Cincinnati, After Hamlin returned he tunities offered Hamlin were substan- began telling Yaqui of his involvement with Yaqui’s additional inducements to tial first syndicate, “the ... mob and he was By his status offense. virtue of as a requesting things [Yaqui], from and I—our agent was Hamlin able to of- relationship changed kind of because he Yaqui just fer what he needed for his busi- more, brother, then of a became instead profit inducement, government’s ness. The father, more like like a became dictator to thus, strong negates is factor which me, commitment, so I just it was a didn’t predisposed Yaqui inference that way (App. 527a). know which to turn.” conspire to narcotics violate the laws. Thus, Yaqui responded to Hamlin’s initial important suggestions drug

The most factor in that he strike a deal with determining confusion, reluctance, predisposition the lack of as a awkwardness and “ law, however, dilatory matter of ‘whether the tactics. But Hamlin mounted the engage pressure. Yaqui defendant evidenced reluctance to told Hamlin activity Chicago in criminal was in by syndicate which overcome he was trouble awith ” repeated in group jeopardy. Government inducements.’ Ka and that his life was minski, (quoting phoned 703 F.2d at Reyno Yaqui Hamlin several times and so-Ulloa, 1336). In F.2d at the case him that “blood told unless his brother” us, profit the motive help before was an addi him cocaine would land a deal he by govern implored: tional inducement created would be killed. Hamlin “Blood Yaqui after any possible ment exercised reluctance if way to brother ... there is generate me, Yaqui’s you help you successful cocaine deals. that can will do it .. by Yaqui responded reluctance is evidenced fact that that he would sooner sell continually pressure anything Hamlin increased the his happen business than let Yaqui 529a). in finally acquiesed (App. until his de his blood brother. When he government The mands. nature of the in became convinced that blood brother unique. in by ducement this case is be killed mob if would he did not Arizona, agent negotiate Hamlin deal, Yaqui travelled where a cocaine finally ac- Yaqui. demands, he befriended quiesced Hamlin “was seek in stating, Hamlin’s “I’ll ing friend, immediately [they] anything you, for a so in Carlos, de do the world for veloped good a real relationship very repeated in a no matter what it is.” Hamlin in Yaqui entrapped as fore, find that was we Yaqui’s that conversations taped

several matter of law. a cocaine transaction generate failure his “blood broth- in death to result would the dis alternatively that Yaqui contends inducement, that repeating After er.” instructing jury on trict court erred of business the inducement added Hamlin from of withdrawal his affirmative defense gov- escalating repetitious and The profit. instructed conspiracy. The court case, there- in this inducement ernmental deci with this Circuit’s jury in accordance Yaqui’s nondis- fore, undeniably overcame Battista, 646 F.2d sion in United States conspiracy. the cocaine to enter position (6th Cir.), Yaqui did not travel that The found (1981) drug facilitate the commerce to interstate is on the defendant the burden that transaction, any use communication did not Yaqui does not such withdrawal. establish and did that transaction facility to facilitate Circuit’s well-established quarrel with this pos- facilitate the telephone to not use the proof on the of the burden allocation any narcotics on or distribution session contends rather He issue of withdrawal. Ya- jury only convicted any reasoning occasion. adopt that we should request- conspiracy entering into the qui of Read, F.2d 1225 States v. he Hamlin by Once believed Cir.1981) government ed Hamlin. and shift found, and the safe, Yaqui, the in Yaqui’s be continuous proving burden concedes, from withdrew government not conspiracy. We need volvement conspiracy. in the ap involvement adopt further Read decide whether brief, 49). (Gov’nt. p. however, finding our proach, because law entrapped as a matter of Yaqui was us, find no record On the before § 846 and violating 21 U.S.C. into reputa Yaqui’s character evidence that guilty every on other finding of not jury’s activity, him toward criminal tion inclined any error charge renders cummulative Yaqui initiated the crimi no evidence instruction. the withdrawal readily Yaqui activity, no evidence that nal opportunity presented accepted the VII government agents, and no evidence crime committed this Yaqui would have Testimony Expert strength agent overwhelming absent Yaqui’s en- respect to holding with Our find instead inducement. We Hamlin’s similarly defense obviates trapment unwary and Hamlin induced an agent the district court consider whether need to committing man into crimes innocent excluding particular in his case erred to commit becom predisposed Titchener. testimony of Dr. James expert preying ing his “blood brother” however, Carranza, Appellants Valdez special relation loyalty of that the love erred in the district court contend that also factors considering each of the ship. After testimony. We excluding Dr. Titchener’s predisposition, see may demonstrate as it assignment error must consider that 1008; Kaminski, Reynoso-Ul at 703 F.2d their convictions. pertains to Townsend, 1336; loa, 548 F.2d at Dr. Titchen- judge excluded district we conclude testimony pursuant expert psychiatric er’s from a reason presented no evidence which 12.- Procedure of Criminal to Federal Rule Yaqui that juror could have concluded able provid- Rule 2(b). trial that At the time of the predisposed conspire to to violate was ed: Sherman, at 356 U.S. narcotics laws. See to introduce Kaminski, (b) intends 823; If a defendant at 78 S.Ct. relating a mental testimony 1007; expert F.2d Spain, v. at States bearing upon the issue denied, condition (7th Cir.), ... cert. mental state had the he of whether 50 L.Ed.2d 97 Under charged, case, for the offense required peculiar of this there- circumstances notify attorney may case, for the be in entrapment shall ... invaluable an writing in of government Garrett, such inten- see United States v. 716 F.2d 257 — of copy (5th and file a such notice Cir.1983), tion U.S.-, the clerk. (1984); Rohrer, (9th v. United States give required Failure to notice when under Cir.1983), we conclude that this district may this result the exclusion subdivision court acted within its wide testimony any discretion expert “the witness excluding such evidence in by the on the this case. offered defendant issue 12.2(d). state.” mental Fed.R.Crim.P. Advisory The Committee Notes VIII objective

state that the of this rule is to provide government prepare “time to to District Court Restriction of Appellant’s usually require meet the issue which will Cross-Examination upon expert testimony.” reliance The dis Appellants contend that the district court judge trict found that admission into evi abused its in restricting discretion appellants’ expert testimony dence of with scope of their cross-examinations of govern virtually no advance notice to the govern- witnesses. After the ment “at the spirit” would violate least completed ment direct examination of its 12.2(b). probably the terms of Rule The witness, first judge the district warned the judge has wide discretion to district excuse several against defense counsels “repeti- appellants’ grant timely failure notice of tious judge cross-examination.” The stat- expert’s testimony, their has but also broad ed: testimony. discretion exclude such Gentlemen, just I you, wanted to remind Brown, United States v. F.2d you may select attorney to do the Cir.1977). interrogation, cross-examination. In ad- excluding testimony in that this dition, may each counsel further interro- case, judge district relied the dis gate as to matters concerning his client. Hill, sent in United permit I’ll not repetitious cross-examina- (3d Cir.1981). dissenting opinion simply you tion you because think can do although case reasoned that Rule 12.- it better. 2(b) explicitly apply does not entrap 192a). (App. defense, spirit ment of that rule should judge cover “mental condition” of the proceeded absence The district to restrict predisposition scope central of defense counsels’ cross-exami- reasoning, “repetitious” defense. Persuaded throughout and nation as trial. acting Appellants eighteen within void Sixth Circuit law on cite least instances question, judge the district interrupted excluded which the district court their expert testimony. Dr. Titehener’s court, Rule cross-examinations. for exam- 12.2 been ple, has since amended to include refused to allow Valdez’s counsel to scope expert question within its on testimony agent “any Palma about investi- entrapment gation” performed defense. At the time of trial the United States letter, spirit, now Department of Rule 12.2 Customs or the State in con- militate favor court’s “organization.” district deci nection with Valdez’s expert sion testimony Stating to exclude govern- where no the “United States given tice such testimony trial,” 201a), first (App. was on ment is not on the dis- day Appellants the sixth of trial. judge knew trict questioning denied the line of as trial present before would an irrelevant and cumulative. The court also entrapment and, thus, defense ample repeated had found be cumulative counsels’ opportunity notify government. questions Al to Palma about whether the “sit- though we expert realize that testimony garage “right uation” in the rental concerning predisposition 218a). a (App. judge defendant’s The rip-off.” stated: 379a) (App. by engaging “repeti- you ques- if rules” stop you ask going to

I’m may you If ask it once. cross-examination.” You tious tion twice. answer, you’re entitled get don’t an Although fully we cannot condone it. pursue nature of district court’s admonish 218a).

(App. turn, every at ment of counsel we defense rul substance in each the court’s coun- find defense scrutinized The trial court ings. The has district court wide discretion occa- subsequent on cross-examination sels’ cumulative, harassing irrelevant, to limit trial in a proceeded to insure that sions Pritchett, questioning. States v. counsel Because Valdez’s fashion. focused (6th Cir.1983). F.2d The court propen- about Valdez’s had “asked [Palma however, discretion, may not exercise exaggeration] twice and sity for [had] prevent coun to do so would defense twice,” the dis- when example, it for answered exploring bias, prejudice, from “new sel counsel to ask a judge required trict credibility government witnesses. 226a). in- Unit In a similar (App. question.” Callahan, (6th ed v. to allow stance, judge refused the district Cir.1977). explorations provide the again his Such again and home counsel drive principal vindicating means of an accused’s have government would point that right to adverse any Sixth Amendment confront suspected the criminal involvement Alaska, v. happened to near Valdez witnesses. Davis be individual who (1974). The instruct- court during the transaction. ed counsel: of this Our review record reveals you have has answered and The witness prevent did not de district court You are question repeatedly. asked the adequately fense counsel from cross-exam you want. entitled to the answer See, ining government e.g., witnesses. your to an You’re entitled answer Fife, F.2d 369 United States question. Cir.1976), denied, 430 230a). sev- (App. judge The district also 51 L.Ed.2d Counsel on questioning cumulative ered counsel’s permitted challenge credibility 235a), system (App. judicial the Mexican veracity government and the witnesses of wit- knowledge of release Palma’s court, testimony. The we of their district 238a), “un- (App. Palma’s ness Gonzales find, directed, channeled and but did not undercover truths” told to Valdez an coun prevent, the confrontation defense knowledge capacity, of Hamlin’s Palma’s government sel of witnesses. While we do syndicate connections “untruths” about degree control, not commend this of trial 258a), (App. Yaqui calls (App. Hamlin’s conclude nevertheless that the district 428a), 427a, early (App. Hamlin’s contacts court’s somewhat inordinate restrictions 437a), Angeles (App. Los contacts Valdez’s upon defense counsel’s cross-examinations 849a), (App. “nice” Farrell’s character not an abuse witnesses was 504a), memory of conversation Hamlin’s of discretion. involving techniques with Stuart coercive insuring con- that the cocaine deal be IX 717a), (App. and Ham- summated in Ohio Taped Conversations Exclusion Tony (App. Langley contacts with lin’s Valdez, case, 720a). judge Appellants McLernon and district each Yaqui additionally contend repetitious. district questioning found the excluding for at- court its discretion reprimanded also counsel abused judge agent Ham taped involving conversations tempting demonstrate taped parties during They first that conver position of the lin. contend relative neigh Yaqui’s interrogation between Hamlin of Carranza sations government’s admit headquarters. bor, Tony Langley, should have been accused DEA court rele- they were deliberately “violating because ted into evidence counsel [his] campaign” striking of is in a prove “systematic Langley. vant to a deal with Hamlin coercive law enforcement tech- Hamlin’s never induced or threatened Langley in the 404(b) niques. provides: Rule in alleged manner which he was to have crimes, present induced and wrongs, appel- threatened the Evidence of other or acts their prove capacity to lants. Absent to is not admissible the character reveal a plan scheme, tapes coercive person of a in order to show that he or at issue conformity may, probative in It contain little acted therewith. value. We con- however, clude, pur- therefore, be admissible for other that the district did court motive, poses, proof opportu- excluding such as of in not err the recorded conversa- intent, nity, preparation, plan, knowl- Langley. tion between Hamlin and edge, identity, or absence of mistake Appellants argue also that the dis accident. excluding taped trict court in erred pur district court has broad discretion agent conversation between Hamlin and to deny suant to rule and Rule 403 conversation, Dick Stuart. In that Hamlin admission of such character if its evidence employ asked Stuart what tactics he should prejudice outweighs probative its value. if in cocaine dealers Arizona refuse to trav Perrin, v. United States complete el to to (App. Cincinnati a deal. Cir.1978), aff'd, 444 U.S. 717a). While clearly such evidence is rele agent vant to the issue whether Hamlin Callahan, entrapped appellants bringing into cocaine (6th Cir.1977), this Court found that the in Act, Ohio violation of Travel our denying trial court abused its in discretion transcript review reveals that challenge right the defendant’s with evi ample considered the role practice” present dence “routine played by agents inducing such inter an conduct of adverse witness. The Court taped state travel. The conversation be held that evidence such a routine is agent Stewart, Hamlin tween Lionel prove particular relevant to conduct in con hear, did describes formity therewith. 551 736. F.2d at Fol agent’s bring desire to the cocaine transac lowing comparable reasoning, the tion into Ohio. The Richard Stuart-Hamlin McClure, United States v. thus, tape, merely cumulative of evi (5th Cir.1977), found error in the trial already jury. dence before the The district testimony concerning court’s exclusion of court, acted within its dis wide previous informant’s coercive cretion when it decided to exclude techniques. enforcement The exclusion of taped 403; conversation. See Fed.R.Evid. testimony, that plan which established a or Perrin, 580 F.2d at We 736-37. find 404(b), Rule pursuant scheme under in excluding the district court did not err “right present mined the defendant’s two of Hamlin’s recorded conversations. vigorous defense.” 546 F.2d Had the district court the case X agent before us excluded evidence of Ham Voluntariness Instruction prior lin’s schemes of coercive enforcement compelled authority Appellant we would be Carranza contends 404(b), failing Rule McClure Callahan to find district court erred in to issue a record, however, error. The regard indicates that voluntariness instruction to his judge incriminating post-arrest district and counsel listened to statements tapes engaged argument agents the offered DEA Palma and Stuart. Before admissibility. tapes trial, suppress over their moved do not Carranza those yield any agent post-arrest grounds evidence of Hamlin’s coer on the statements agent speaks cive tactics. The in ominous he made them without benefit of counsel. dangers motion, hearings terms about the on During inherent in the the dis- business, primary testimony narcotics but his trict heard the concern court Carranza, however, ex- struction if the issue of Palma. voluntariness has Stuart and privilege Amendment not placed jury. his Fifth ercised been before United hearings. April testify On (6th Cir.1974), Dye, v. 508 F.2d 1226 States denied the motion to the district court denied, cert. 420 U.S. finding that suppress, (1975); Goss, L.Ed.2d United States v. inculpatory (6th Cir.1973). statements made Dye Carranza’s 484 F.2d 434 In headquarters appear DEA to have at the if held that a defendant makes “an effort completely spontaneous, made as a been get jury evidence before independently observing de- of his result put the voluntariness of the state would Farrell, McLernon and rather fendants issue,” judge the district need not ment any interrogation by response than a provide specific voluntariness instruction. agents. the DEA added). (emphasis F.2d at 1232 This See 508 similarly Court in Goss held that a “chal 71a). (App. dispute does not now Carranza lenge, jury, as to the confes finding, the district court’s based before requires sion’s voluntariness” a voluntari presented hearing, at the that he evidence ness instruction. 484 F.2d at See right waived his to counsel. currently precise before issue Carranza contends instead therefore, placed us, Carranza is whether required presented at trial the dis evidence challenge the jury to before a judge trict to issue voluntariness instruc trial, his confession. At voluntariness of § 3501(a). That pursuant tion to U.S.C. exercise his Fifth decided not to Carranza mandatory provision provides: testify. He privilege not to Amendment judge determines that If the trial headquarters DEA he first testified that at voluntarily made it shall confession was questions about Agent Stuart’s answered in evidence and the trial be admitted history, his method of trans personal his judge permit jury to hear rele- shall Cincinnati, being reason for portation to his on the issue of voluntari- vant evidence Cincinnati, companion, traveling wit his jury give instruct the ness and shall Alejandro Gonzales and involve ness jury weight such confession as the The voluntariness of ment McLernon. with feels it deserves under the circumstanc- not at issue. these statements is es. however, testified, Carranza before added). provision (emphasis This does not during his conversation afford, appellant request, does not a Stuart, agent Palma entered small admissibility. second determination of headquarters: DEA room at (2d Barry, v. 518 F.2d 342 United States Yes, He was he walk in the room. A. Cir.1975). judge trial has After the decided § mad. evidence, however, 3501(a) admit require[s] specific charge Q. mad? “unequivocally a He was on the issue of voluntariness.” Id. at 346. me, Yes, “You’re the he and he told A. provide The district court’s failure to head; chief, you, I’m you’re the specific voluntariness instruction where the to, you’re going to talk.” going question presents genu voluntariness me, Q. you excuse me. He told Excuse plain of fact constitutes error. ine issue you the head and you were Bondurant, States v. chief? (5th Cir.1982); United States v. “You’re the Yes. He told me that. A. (11th Groce, Cir.1982); 682 F.2d 1359 Unit head, head; you’re the you’re the Maher, ed Cir. chief.” 1981); Fera, F.2d 590 United States v. you time he was Q. at the Where were (1st Cir.), telling you this? in a I was seated A. I was seated. desk, and the this small chair with Circuit, court a district right arm cuffed. in- provide specific must voluntariness 313a-314a). (App. THE presented INTERPRETER: Handcuffed. Evidence testimony from Q. right what? Stuart arm before Carranza, which indicates THE INTERPRETER: Handcuffed. the defendant did affirmatively A. it to it. With cuffed stop incriminating in their ac- Q. To the chair? testimony count of his one after of them A. To the chair. torture, had threatened him with had vio- Q. Agent say to What else did Palma lently shook his chair attempted and had you? you Spanish? Did he to in talk strike him. We find that this evidence is Yes, talking Spanish. A. he in was adequate more place than to before the Q. said, everything. Tell he us what jury the issue of the voluntariness of Car- Well, he, A. Stuart like far Mr. ranza’s confession. her, here, away, and I like was seated The issue voluntariness moreover was and and he Palma came told me that— central to Carranza’s defense. His counsel no, going “You’re talk.” say, and he to argued jury: the And the then he shake chair. before Q. you remember Carranza He did what the chair? what said? [D]o A. He chair. my shake He was seated in the DEA’s office. That Q. over, over, Shake? grabbed Mr. Palma came bent know, it, his chair and they A. And I if rattled told him don’t find me about alone, tortura, torture, you you with talk. You know told him about federales Mexico, what the Federalists do in Mexico. in repeat and went on to a bunch Miguel of statements that, A. that Carranza de- What is torture? he agent nied that made to Palma. THE INTERPRETER: He refer the Mexico, say in they Federalist torture. Now, you heard quality Miguel the Q. They torture, okay, Go English, ahead. important Carranza’s but more fear, than the the say, A. And then “If me intimidation and they he find more you you important alone than you alone will talk.” what I submit is the deliberate fabrication And statements then I—well— evidence, gentlemen, ladies and where got THE INTERPRETER: And he is the govern- evidence available afraid. ment, that, submit, I if these statements (App. 669a-671a). you were true you would have before Agent Stuart testified that then Palma now. repeat told Carranza he would him that 787a). (App. placed Because Carranza (Stuart) English everything prisoner genuine voluntariness issue before the Spanish. had told him in Palma instructed jury, required district court was 18 Carranza: § 3501(a) specific U.S.C. to issue a volun- going go I’m and if I anything slow tariness instruction. say incorrect, me, is I please stop and him everything want to be sure that I tell avoid seeks to the im- you just is what told me. § perative by claiming 3501 that Carran- 313a-314a). (App. then argued post-arrest Stuart stated be- za that his statements jury offered, that were not that fore nearer involuntarily offered. during While find Agent saying the time Palma was and attorney ques- Carranza Carranza’s English Miguel what Carranza told Spanish tioned both voluntariness and the stopped him at least twice he ve- admissions, said, correct,” racity of the “Miguel, and he defendant’s making he Miguel I fact denied those looked over state- Carranza require- kind ments hung. head was He could have relaxed § despondent, seemed to 3501. In Barry, be kind he ments of but stat- § did nod his affirmatively. “imperative quali- head ed that 3501’s is not 1120 government urges, cure has he defect. denial that Stat defendant’s by a

fied ... ing that he did not “think inculpatory statements.” [voluntariness] made ever instruction,” specific the district requires a defendant,” Barry “A F.2d at 518 charged jury typical terms that court claim that stated, “may properly court weigh they should the evidence and and that incriminating statements no made credibility Supreme of the might find witnesses. any statements Court, however, has often held that a F.2d at coerced.” he made were reliability charge which addresses the Boles, F.2d 939 347; v. Stevenson 174,13 accuracy testimony does not cover 85 S.Ct. Cir.), 379 U.S. modified, important consider equally but distinct if Carranza Thus even L.Ed.2d Twomey, Lego v. the incul ation voluntariness. that he offered deny the fact did statements, court was 404 U.S. 92 S.Ct. the district patory Denno, (1972); v. specific voluntari Jackson issue a required to still 1774, 12 (1964); Rogers that the dis S.Ct. L.Ed.2d conclude We instruction. ness Richmond, in such an to issue failure trict court’s (1961). Relying upon these error. this case constituted struction cases, that Barry the court stated moreover, find, that the district We repeatedly Supreme Court has em- the beyond a not “harmless was court’s error challenge a to phasized that voluntari- Chapman v. doubt.” reasonable Califor ness raises a consideration at least as L.Ed.2d 17 87 S.Ct. nia, U.S. 386 accuracy: significant reliability as In con Goss, F.2d at 437. (1967); 484 705 “the state the unfairness involved when in this case was sidering the error whether by prove[s] charge ... coercion its harmless, impact of appraise must we against an accused out of his own jury. v. United error on the Kotteakas mouth.” L.Ed. States, 90 (1946); F.2d at 348. In Kot Barry, omitted) (brackets (citations 518 F.2d at 348 that we teakos, Supreme Court stated general original). Barry rejected a . prejudice quick perceive to more charge nearly should be to the one at bar identical departure is defendant “where was re- where a voluntariness instruction specific or a constitutional norm from a quired. astutely That Court concluded 764-65, Congress.” 328 U.S. at adopt government’s command loose were it to § spe 3501 is a 1247-1248.Section 66 S.Ct. at interpretation of the entire statute designed command congressional effectively superfluous, cific “would become norm. reify a constitutional might vindicate case since it be satisfied Cong. & Ad.News 1968 U.S.Code boilerplate charge on credibili- the standard prejudice, perceive quickness our While ty.” Congress, at 347. the court rea- Id. the meticu justified, be soned, would “contemplated specific a reference scrutinize which we gener- lousness where “a to the confession” because Reviewing prejudice. reveals such supplemented by record a charge al is not even exclusive evidence government’s limiting instruction at the time the evidence Goss, admissions, see introduced, apt jurors Carranza’s are all too only disputed circumstantial we find judge binding a conclude that the has made reason for testimony the defendant’s about the confession was determination possible use and his being in Cincinnati voluntary, perhaps more fact and law cocaine with the in connection phone serious, at 347-48. true.” Id. confes disputed Absent transaction. prejudice in al- light In of the inherent little hard presented sion, government to consider Carranza’s con- lowing could conclude be we from which specific in- voluntariness fession without error doubt yond a reasonable govern- paucity of and the struction harmless. Carranza, proof against additional ment’s court’s error that the district conclude charge actually issued general § require- by the failing to abide moreover, court, did not as the by the trial beyond a reason- ments was not harmless favorable” Carranza and whether Car- disposition attorney able doubt. Because our ranza’s opportuni- had sufficient § requires ty claim Carranza’s that he to interview the witness before his trial, departure. a new we need not reach his prompt receive Carranza testified at additional contention that the district court trial traveled to Cincinnati with admitting in form erred in redacted McLer- Gonzales on commercial airline. He stat- post-arrest not, non’s statements. ed that two of them did as Valdez’s

alleged pre-arrest indicated, fly statements private to Cincinnati on a jet pur- XI pose of furthering the cocaine transaction. Departure of Witness Gonzales Gonzales Carranza rather had ar- Additionally, appellant con- Carranza ranged Jersey to leave Cincinnati for New tends indictment should be dis- legitimate on business before altogether missed because the Gonzales, thus, arrested. awas witness departure country facilitated the from this purposes Carranza’s actions and immedi- of one his witnesses in violation of his ately drug before the transaction occurred. rights. Fifth and Sixth Amendments (App. 656-659a). testimony pre- Gonzales’ sumably would have been “both material In United States v. Valenzue and favorable” to Carranza’s defense. la-Bernal, 858, 872, Valenzuela-Bernal, the Supreme Court 3440, 3449, (1982), the Su “[bjecause prompt deportation warned that preme Court “the immigration found that deprives the defendant an opportunity policy adopted Congress justifies the interview the witnesses to determine pre- deportation prompt illegal-alien witness cisely what they possess favorable evidence upon good-faith es the Executive’s determi expected ... the defendant cannot be they possess nation that no favor render description a detailed of their lost able to the prosecu defendant a criminal testimony.” 873, 458 U.S. at at S.Ct. concluding tion.” Before govern that the faith,” “good ment exercised its duties in (1) testimony we must find that the of the must, therefore, We question turn to the witness would not have been “both materi of whether Carranza’s counsel had suffi- defense,” al and the favorable to at id. opportunity cient the interview witness 3449; (2) government at S.Ct. the did departure. record, before his The unfortu- “prompt deportation” not facilitate the of nately, is unclear incomplete and on Gon- witness, 872-73, illegal-alien at id. availability. zales’ The evidence of which 3449-3450; (3) S.Ct. at and the witness’ aware, however, we have been made does prompt deportation deprive did de not suggest although attorney that Carranza’s attorney fendant and opportuni his of “an witness, saw the he was unable to inter- ty to interview the witness determine language view him because logis- precisely what favorable evidence” he problems tical that the did might offer. at Id. 102 S.Ct. at 3449. prompt correct departure. before his The government does not contest fact In inadequacy view the of the record or that it facilitated “assisted” witness’ opportunity on the to interview the witness (G.B. 101). return to p. Mexico. In this and on the “material favorable” nature Circuit, voluntary the facilitation of a de testimony, however, of Gonzales’ we heed parture equivalent government’s to the Supreme Court’s advice and remand for deportation. Armijo- United States v. hearing on these issues. In Valenzuela-

Martinez, Cir.1982). Bernal, the Court stated that some questions may that we must re cases “the criminal defendant advance solve, facts, are whether evidence was additional either consistent with suggest already introduced that witness Gon facts known the court or accom- zales would have been panied by explanation both “material and a reasonable for instruction, however, facts, inconsistency with such a untariness Carranza with

their the court that the testi- entitled to Ac- persuading would still be a new trial. view to witness have mony deported hereby would and remand cordingly, we vacate de- and favorable his material con- proceedings been Carranza’s convictions re- The district court Id. . opinion. fense.” sistent with “expla- appellant’s mand should insure materiality” is “verified oath

nation of XII or either the defendant affirmation of or 603; (citing Fed.R.Evid. attorney.” Id. Jury Failure to Disclose Lists 47.) Fed.R.Crim.P. Appellants contend the district court has heard the court After the district denying inspect their motion to erred evidence, impose the sanction may it names, copy ques- addresses and if is a indictment “there dismissing the grand jurors who tionaires returned testimony likelihood reasonable against the indictments them. district judgment could have affected appellants “only court found at fact.” 458 U.S. trier of Lists from which the entitled Master States, 405 (citing, v. United Giglio drawn, together Grand are with the Jurors 150, 92 31 L.Ed.2d S.Ct. demographic relevant data.” (1972)). making the decision to dismiss In determining dis whether the district court the indictment the erred, begin proposi court trict leeway for fact should afford some § 1867(f) (Supp.1984), tion that 28 U.S.C. necessarily proffers a defendant grants right to “unqualified a defendant an evidence rath- description of the material States, inspect jury lists.” Test v. United itself. Because de- er than the evidence materiality are best terminations of often provides: That section light ad- of all of the evidence made papers trial, may The contents or used judges wish to defer of records duced at presen- until commission or clerk in con- ruling on motions after the process of evidence. nection with the selection tation disclosed, except may ... shall not be as Supreme further Id. The instructed necessary preparation pre- in the be witness “must be that the absence of a sec- sentation motion under ... this in context of entire the the evaluated ____ parties tion in a case shall be 10, 3450 Id. at 874 n. 102 S.Ct. at record.” inspect, reproduce, copy allowed to and 97, v. 427 (citing Agurs, U.S. United States papers such records or all reasonable at 2392, (1976)). 96 S.Ct. 49 during preparation and penden- times the Valenzuela-Bernal, In accordance with cy a of such motion. to court we remand the district Test, Supreme In the the Court vacated questions hearing a on the of for Gonzales’ for defendant’s conviction and remanded testimony material and of and favorable inspection selection records based the opportunity Carranza’s to interview “unqualified” right. upon this “Without government the facilitated witness before concluded, inspection,” the Court departure. the district court Should government deprived party invariably a almost would be un- find that the Carran- po- he opportunity to a favor- able to determine whether has a za an interview witness, tentially jury challenge. the meritorious and material dismissal of able Thus, If, unqualified right inspection a to be after an indictment would warranted. only by plain required finds text hearing, the district court Carranza, statute, by also statutes over- deprive did not so but insuring “grand petit purpose all and then the sanction of dismissal would not be from a fair juries in selected at random appropriate. Because we also find error community.” of the cross-section provide district court’s failure to a vol- (quoting quirement. hearing 95 S.Ct. at 750-751 After on appellant’s Id. § 1861). right inspection to Suppress, ex U.S.C. Motion the district court con- materials pad tends to all selection rele cluded that “the note and brown calen- complete to a determination of wheth are plain vant dar admissible under the view grand petit jury 66a). in fact (App. er a has been doctrine.” The court found “at a random from a fair selected cross-sec that after his arrest McLernon led DEA Id.; community.” agents tion of the Powell and Kusen back the hotel Lawson, 670 F.2d 923 Cir. room staying. where and Farrell were 1982); Hubbard, agents’ entry United States v. 474 Farrell “consented to the into F.Supp. (D.D.C.1979). 65a). certainly (App. room, We can the room.” in the While agent envision a situation which a defendant Powell observed on the bed a calen- names, airplane afforded papers must be access to ad dar with tickets and other dresses, jurors demographics telephone and those on pad stand a note indictment in order top. who returned the to the number “126” on written When right “unqualified” inspec voluntarily agreed vindicate Farrell to accompany jury actually tion and to insure that the Powell and Kusen to DEA headquarters represented spectrum questioning, wide the com seized the cal- See, Walker, munity. e.g., pad. Collins v. 329 endar and the note At the time of (5th Cir.), seizure, F.2d 100 U.S. Farrell was neither under a 189, 13 charge subject S.Ct. L.Ed.2d agents’ nor the of the particular us, however, “probable situation before cause” to believe she had en- unqualified appellant’s conclude that gaged activity. criminal inspection right was satisfied disclo determine, therefore, We must whether sure the Master Lists and the relevant property warrantless seizure of her demographic general data about pool justified “plain under the excep view” specific grand jurors from which the In Coolidge Hampshire, tion. v. New Congress selected. While intended § 1867(f) through to insure that the nation (1971), Supreme explored initially al fair and impartial juries interest re plain view plurality doctrine. In that primacy grand over the ceive interest opinion, the Court stated that order to jury secrecy, States, see Dennis v. United pursuant “plain seize evidence view” 16 L.Ed.2d 973 exception, executing must demon officers (1966), we find that on the narrow facts (1) (2) prior intrusion, strate valid an currently appellants before us received suf discovery, (3) inadvertant that the evi carry ficient information from out “immediately dence of an unlawful act was hold, Congressional intent. We there apparent” Coolidge analysis, to them. The fore, that the district court did not err in adopted completely which has been refusing provide appellants with the Court, see Gray, United States v. names, addresses, demographics (6th Cir.1973), denied, 352 cert. 414 U.S. specific grand jurors who returned the in 1158, 916, (1974); 94 39 L.Ed.2d 110 S.Ct. against them. dictment Truitt, (6th F.2d 1174 United States v. 521 Cir.1975), Supreme was reaffirmed the

XIII Brown, 730, in Court Texas v. 460 U.S. 103 Appel S.Ct. The Plain View Seizure of the Brown not, they do nor successfully, lants could Calendar and Note Pad agents’ the prior contend that intrusion Appellants McLernon and Farrell con- room into hotel was invalid or that their finding tend the district court erred in discovery seized items was adver pad the note and brown calendar tent. seized from their hotel room were admissi- “plain exception us, therefore, pursuant ble to the view” The issue before is wheth- agents’ probable to the er Fourth Amendment’s warrant re- cause believe 1124 they stolen incrimina- pad and were incrim- were and hence note calendar ting. “immediately apparent” to

inating was “plain view” of these ob- added). their (emphasis them F.2d at 355 484 Brown, at 460 U.S. jects. See Truitt, applied “immedi- In we this same Brown, Supreme In ately apparent” the facts of that test to ‘immediately “it that must be stated case, seizing Court found that the officers’ but they police that the items and probable to the cause was “immediate” apparent’ both “plain to them view” “apparent” from their crime —” may evidence of a be observe objects. upholding the the seized In 737, 103 S.Ct. at 1540. The Court 460 U.S. seizure shot- of a sawed-off warrantless police activity in that examined then offi- gun, this Court determined that the probable cause determined that case and reasonably probable cers could derive apparent to the immediate and was both in- cause to believe that the evidence was plain tightly- from his view of officer criminating very from moment placed in party suspiciously balloon knotted object. 521 F.2d at “first discovered” the fingers. Probable the defendant’s between knowledge of the 1176-77. officer’s found, “immediate,” was the Court cause incriminating shotgun in nature of the the direct result of the it was because Truitt, thus, con- was “immediate.” We sensory perception instantaneous officer’s in nature cluded addition that the criminal moreover, cause, object. of the Probable possession “intrinsically” sus- an no “apparent” the officer because was shotgun was from mere picious “apparent” “commonly “innocent item” is in carried the object: observation Brown, tied-off balloons.” uninflated shotgun private in “... a sawed-off (Powell, J. U.S. at S.Ct. at 1545 intrinsically innocent hands is not an ob- concurring). possession a serious ject. The of it is crime, except extraordinary cir- under “immediately test devel- apparent” cumstances.” in oped Brown consistent with (quoting at 1177 v. United Porter in earlier of that test Court’s cultivation Cir.), States, (9th Gray Gray, and Truitt. declared unconstitutional the rifles from seizure of (1964)). In direct contrast L.Ed.2d incrimi- the defendant’s closet because Gray, seizure the seizure Truitt nating nature of the seized evidence was prob in a performed situation which was “apparent” neither “immediate” or “ap cause was both “immediate” able executing officers. This Court concluded intrinsical parent” to the officers from the initially that because the “rifles were not incriminating object ly nature of the found probable cause contraband” officers’ “plain Although Gray view.” “apparent” could not have been from their results, legal Truitt reached different “plain at 355. view” items. 484 F.2d iden they employed standards Yet, incriminating if even the nature of moreover, standard, ap That tical. “apparent,” Gray had been Court rifles Supreme by the in Brown. plied appearance of criminali- concluded Brown, Gray, Our review Truitt found that ty was “immediate.” We led us to conclude the officers time ... at that [did not] Szymkowiak, F.2d 95 any knowledge crimes. have other Cir.1984) that where the at- only had Trooper It was after Brodt excuse the seizure of tempts to warrantless weapons, copied the the seri- seized down exception, “plain under the view” evidence numbers, premis- left al the defendant’s reviewing court wheth- a must “determine es, and then run information taken case, the er, of each under the circumstances through off the rifles the National Crime cause was ‘immediate’ and probable both executing to the officers from ‘apparent’ Center he learned that Information that object of the viewed.” but packet the nature concluded that “the of cocaine agents’ found the Szymkowiak, we that within found the calendar” was not admis- a probable cause to connect seized rifle sible under that doctrine. activity was not “immediate” with criminal concluding, however, In so the Court agents those could not from their because to apply failed the “immediate and appar- sensory perception, instantaneous see Cool- ent” test required by Coolidge, Gray, 2040, of 403 U.S. at at idge, Truitt, Brown, Szymkowiak. and The dis- discovery, the item “at the time” of see apparently trict court instead understood determine Gray, at whether Supreme Court’s Brown decision to possession its was unlawful. Szym- mere “qualified” have “immediately appar- kowiak, Moreover, at 98-99. “by holding police ent” test need found, that criminal nature of only probable have cause to believe the

weapon facially “apparent” was not to the item significance seized has criminal or evi- observing agents from its “intrinsic na- ____” dentiary value Our pre- decisions ” agents at 99. The ture. F.2d. rather dating Brown, post-dating however, and had to view the interior of the rifle itself, and the majority in Brown have not order to determine whether could it be evi- only unequivocally adhered to the “immedi- of a dence crime. test, ately apparent” but have embellished “immediately apparent” test, This as it absolutely that test. We find nothing in developed has been this Court and Supreme Court’s Brown decision to Court, Supreme provides two crucial policies, undermine the principles and safeguards against “plain abuse precedents require which to- us determine exception view” Fourth Amendment agents’ probable whether the cause to be- requirement. requirement warrant pad lieve the note and calendar were evi- probable that cause be both “immediate” of a dence crime was both immediate and “apparent” and obviates the risk “inherent apparent “plain to them their view” a enlarge such situation officers will objects. pad The note and the calen- authorization, specific aby furnished undoubtedly dar themselves were in “plain exigency, equivalent warrant or an into the view.” general rummage of a warrant and seize Yet, probable we find that cause of crimi- Brown, at will.” at See U.S. 103 nality apparent was neither nor immediate 1546, (Stevens, Concurring); S.Ct. at J. plain from their view of the 470-71, Coolidge, 403 at S.Ct. at shotgun items. Unlike the sawed-off 2040-2041. The and “appar- “immediate” Brown, Truitt the knotted balloon test, furthermore, protects ent” individuals pad and calendar in case note this against possibility acting that officers “intrinsically” hardly incriminating. In- authority

without warrant —without the plain deed such items are found in view of of the rule of law—will have time and virtually every desk this country. across scope plausible justification to fabricate not, cannot, We do subscribe to a rule arbitrary an otherwise and extensive of law allows officers of the state search or seizure. See id. merely seize an item as evidence it because us, therefore,

In the “plain case before is in Coolidge, view.” See agent’s we must determine agents’ whether at 91 S.Ct. at 2040. The “im- probable cause to believe sensory perception, seized mediate” see id. at incriminating pad note and calendar were produce probable S.Ct. at must objects was apparent” both “immediate bar, cause crime. In the case plain agents’ to them from produced their view those perceptions “immediate” objects. court, hearing only district after images visual two “intrinsically in- suppress on Truitt, the motion to nocent” items. 521 F.2d at Cf. evidence, 1176-77; Gray, concluded these items were 484 F.2d at 1174. We are “plain doctrine, conclude, therefore, admissible under the view” unable entrapment entrapment” “vicarious as a perception, prob- had agents time of at the pad a note and of no able to believe matter law. We find error with cause Brown, incriminating. calendar were See respect to in the district court’s Valdez (Stevens, at 1546 103 S.Ct. U.S. at entrapment Neither do we instruction. Concurring). J. find error in the court’s failure to district charge conspiracies, multiple on restric- proba- that such We in addition conclude counsel’s cross-examina- tions defense “apparent” offi- ble cause was never witnesses, tion of exclusion of objects. of “plain view” the cers from their testimony, suppressed expert the cocaine Dr. and re- The court Titchener’s district names, addresses, it the calendar because was to the and found inside fusal disclose the officers from their “apparent” not grand demographics specific jurors dates, items seized. The perception of the According- returned the indictments. who notes, tickets also found in- airplane and against judgment the entered Valdez is ly, however, pad, and note side the calendar hereby Affirmed. equally non-apparent must have been however, does, This conclude that Court note seizing pad and the officers. entrapped as appellant Yaqui was a matter incriminating are calendar themselves Yaqui’s on one count of of law. conviction evidence, writings these interior to but conspiracy, for which received a sen- evidentiary significance. items were years imprisonment, tence of fifteen there- cocaine, suppressed writings, These like the fore, is hereby Reversed. “apparent” been could not have agents “plain their view” of the exte- from Furthermore, finds this Court that the Like pad and the calendar. rior the note failing in to issue a district court erred Gray in and Szymkowiak, regard ap in instruction voluntariness therefore, agents in this case did not failing pellant and in to afford Carranza acquire criminality until probable cause hearing on the circumstances Carranza they seized and examined evidence after not witness, departure of Ale surrounding the “immediately apparent” to We them. therefore, jandro Gonzales. We Remand therefore, conclude, con- evidence hearing court for a this cause to the district calendar should have been tained inside the pursuant v. Valenzuela- to United States agents’ suppressed probable because Bernal, “appar- “immediate” nor cause neither (1982), and the instructions “plain their from view” of the ent” them hearing If that does not contained herein. objects. Accordingly, we reverse the dis- in indict result of Carranza’s dismissal sup- motion to trict court’s denial ment, this finds that district Court press these items. in court’s failure to issue voluntariness requires that Carranza be afford struction XIV Accordingly, a new Carranza’s ed trial. Conclusion hereby Reversed are convictions Re Hence, consideration each of after hearing which will result manded for a appeal hereby presented issues or a trial. the indictment new dismissal of part, part, affirm in reverse and remand Finally, the district we conclude proceedings consistent with this further suppress note failing court erred opinion. We, remand pad calendar. This court finds that district against appellants judgments entered admitting pre-arrest did not err in Valdez’s a new exclu- McLernon Farrell for trial statements. We further conclude that suf- items and the con- sive these supports ficient evidence Valdez’s Travel tained therein. § 843(b) his Act as as con- convictions well entered the district Valdez, judgments Moreover, victions. cannot avoid court, therefore, hereby Affirmed are any of defense convictions

H27 1248, (2d Cir.1977)1, and Remanded with F.2d 1253 cert. de part, part Reversed in nied, 973, 1618, U.S. 435 56 opinion. instructions consistent with this (1978): L.Ed.2d 66 WELLFORD, J., concurring in Circuit strategy Defense counsel’s obvious at tri- dissenting part. part and imply al ... was admission all, was not made at and counsel so ar- majority dispo- I concur with the their gued jury. little, to the There was if following sition of the issues: any, jury evidence from a which could I. pre-arrest Valdez’s statements. involuntary. infer that statement was support Sufficiency II. of evidence to We held that in have these circumstances Valdez’s conviction and absence 3501(a) require section ... not does entrapment. jury charged be specifically on volun- III. Travel convictions. Act tariness. Multiple conspiracy IV. instruction. Goss, See United also States v. 484 F.2d entrapment. V. Indirect 434, (6th Cir.1973)(voluntariness 437-38 in Entrapment. VI. required question struction not where issue), Expert testimony. VII. not in Dye, United 508 (6th Cir.1974), F.2d 1232 appellant’s VIII. Restriction of cross-ex- 420 95 43 S.Ct. amination. (1975) (voluntariness instruction unneces taped IX. Exclusion conversations. sary issue where not raised before the departure XI. of witness Gonzales. Groce, jury), United States v. XII. Failure to disclose lists. (11th Cir.1982)(voluntariness 1359 pur disagree majority’s handling I by sued defense—failure instruct not of the issues of the voluntariness instruc- error), plain Mahar, United States v. 645 plain tion and the view seizures. Accord- (9th Cir.1981)(no substantial ingly, I dissent as those two issues. on voluntariness confession— necessary), instruction not United States v. instruction, As for the voluntariness Car- Stevens, (6th Cir.), cert. de principal ranza’s contention at trial nied, 404 U.S. S.Ct. L.Ed.2d that he incriminating never made the state- (no (1971) substantial voluntariness is testify agent ments. He did Palma instruction). sue raised—no need for thinly shook his made chair and certain judge, trial not err in respect did spite veiled threats of abuse torture. instructions his as to statements threats, alleged however, these Carranza by made Carranza. emphatically making denied the incrimina- I majority’s must also dissent from the Further, ting statements. first Carranza opinion DEA by agents seizure allegations raised the his di- threats in pad and note in plain calendar view in the during rect-examination the final week appellants by hotel room shared two was a trial. No such claims were made in Car- by Judge constitutional violation. As noted pretrial suppress ranza’s motion to Jones: such statements. Nor was assertion made “the court found that after his [trial] pre-trial suppression hearing, at agents arrest McLernon led DEA Powell and Palma Stuart testified and Kurew back to room the hotel where and were available cross-examination. staying. Farrell Farrell I conclude that voluntariness in this case agents’ entry to the ‘consented into the genuine was not a material issue. nor 65a). (App. room, room’ While Credibility was real issue it was agent Powell observed on bed a cal- satisfactorily jury. As in airplane submitted pa- endar with tickets and other Lewis, pers telephone the case of States v. on the stand United a note Cir.1975), majority. 1. This was the court that had decid- same earlier case relied (2d Berry, ed United States v. 518 F.2d Moreover, our pad with the number ‘126’ written on observation Cortez, top.” 411, 418, States v. 690, 695, (1981), room at the same Co-defendant Valdez’s regarding “particularized suspicion,” is # a fact known hotel was agents. Appellants equally applicable probable concede that two to the cause Coolidge Newv. prongs of a test set out in requirement: 2022, Hampshire, 403 U.S. 443, 91 S.Ct. 29 process “The does not hard deal with (1971) plain excep for the view certainties, probabilities. but with tion in cases of a warrantless search are Long probabilities before the law of met in this case.2 I would find also in this such, practical peo- was articulated as incriminating probable case that the nature ple formulated certain common-sense pad apparent and the calendar was of the behavior; conclusions human about officers, experienced time to these at the jurors permitted as factfinders are they “probable had cause” to seize do the same —and so are law enforce- necessary, not indi those items. It was as Finally, ment officers. the evidence majority, by cated for the officers then thus collected must be seen and probable to have cause arrest Farrell. weighed library analy- not in terms of Brown, Texas v. plurality in judge The four scholars, by by sis understood but as 1535, 730,103 S.Ct. 75 L.Ed.2d 502 460 U.S. in those versed the field of law en- (1983) clearly indicated that use of the ex forcement.” Cool “immediately in pression apparent,” idge, supra, did not mean the officers at 1543. S.Ct. possessed certainty of near as to “must be certainly “particularized There sus- was nature of the items” involved. seizable DEA picion” part on the of the officers at phrase, “imme 103 S.Ct. 1542. Use of they the time entered the room which had diately apparent” “very was observed to be occupied by McLernon. The officers been likely unhappy since it an choice words objects looking question saw the in without imply unduly high can be taken to that an drawers, clothing, into or suitcases where degree certainty incriminatory as to the privacy apparent. interests are necessary character of for an evidence is analyzes if one the facts of the Even application ‘plain doctrine.” view’ minority and seizure here under the search v. Colorado Ban at 1542. See S.Ct. concurrence rationale of Justice Stevens3 nister, 1, 3-4, 42, 43-44, 449 U.S. 101 S.Ct. Brown, York, Texas v. plain exception in Payton v. New (1980); view 66 L.Ed.2d 573, 100 observed, applies. S.Ct. 63 L.Ed.2d 639 Justice Stevens follow Ross, (1980), and United 456 U.S. Coolidge ing plurality view: L.Ed.2d object may “in An be considered to be probable There DEA cause for the plain if it can seized without view” be officers to seize this evidence their within compromising any privacy. interest sight and ken were admitted when in Payton: into the hotel room. As noted signif- no seizing the item entail .. must plain property seizure of view [t]he privacy, invasion icant additional privacy involves no invasion of and is and at the time of seizure the officer reasonable, assuming presumptively probable must have cause to connect the probable there is cause to associate behavior, (emphasis criminal item with property activity. with criminal added). 445 U.S. at 100 S.Ct. at 1380. 103 S.Ct. at 1546. “par- Supreme Court discussed the not, view, my any signifi- There was Texas v. suspicion” ticularized of officers by Brown: privacy cant additional invasion intrusion; (1) (2) prior and Marshall. 2. There was valid 3. Joined Justices Brennan discovery. an inadvertent valid, objects observed after a should seizure not be dismissed after the intrusion, discovery Valenzuela-Bernal, States v. consentual where purely of these items was inadvertent and (1982) hear- unplanned. The items seized were reason- ing, I would affirm his conviction. I would ably criminal connected with behavior grant not McLernon and Farrell a new trial (travel drugs) and with another de- indicated, for the reasons but would affirm fendant, Valdez, already custody on their convictions. charges. drug hold,

The Brown did plurality as Judge Jones,

intimidated that it must be

immediately apparent police they may

items observe be evidence of a Rather,

crime. observed that Coolidge opinion plurality of another America, UNITED STATES of “point of reference for further dis Plaintiff-Appellee, meaning cussion issue” and of the proper expression, construction of the “immediately apparent.” 103 S.Ct. at 1540. (83-5252); Jewell Dean PICKETT Wil Indeed, some courts have indicated that (83-5253); liam Lawrence Hill Donald Coolidge Brown modified the test. Dis Ray (83-5254); Polsgrove George Ar Brown, cussing recently Ninth Circuit Hardesty (83-5255), nold Defendants- court reconsidered the Cool wrote: “[T]he Appellants. ‘immediately apparent’ idge plurality’s Nos. 83-5252 to 83-5255. language probable substituted cause Issacs, standard.” United States v. Appeals, United States Court of denied, 1365, (9th Cir.1983) cert. Sixth Circuit. — U.S.-, 165, 104 S.Ct. 78 L.Ed.2d 150 Argued 29, Aug. 1984. also, Pajari, See United States v. Decided Oct. 1984. (8th Cir.1983); 715 F.2d McDonald, States v. 723 F.2d 1295 Rehearing 83-5252, in Nos. 83-5253 and — (7th Cir.1983), U.S.-, 83-5255 Denied Nov. (1984); Rehearing Denied in No. 83-5254 Reed, United States v. 7,1984. Dec. (7th Cir.1984). officers, view, The DEA my did have

“probable pad cause to connect” the note

and the calendar items “with criminal be- They occasion,

havior.” did not have seizing items, rummage through these

private personal or effects such as contain-

ers, purses, envelopes. The cocaine

packet ap- hidden inside the calendar was

propriately suppressed; hold, I would how-

ever, pad and calendar and notes properly

thereon were seized under the ra- Brown, supra, Texas v.

tionale of as did

the district court. I

Accordingly, affirm the would district suppress

court’s denial of the motion to If, upon remand,

these items. the district

court finds that Carranza’s indictment

Case Details

Case Name: United States v. Richard Scott McLernon Kido Yaqui, Sherri Louise Farrell, Miguel Angel Carranza, and Marco Antonio Valdez-Cota

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 20, 1984

Citation: 746 F.2d 1098

Docket Number: 19-3006

Court Abbreviation: 6th Cir.