United States of America, Plaintiff-appellee, v. Gurleon Maxi Jackson, Talmadge Alvin Whitley and Nathanphillip Hicks, Defendants-appellants, 700 F.2d 181 (5th Cir. 1983)

This appeal involves a sting operation conducted by agents of the Drug Enforcement Administration (DEA). The operation resulted in jury convictions of the defendants, Jackson, Hicks, and Whitley of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 846 (1976). The jury also convicted Jackson of knowingly and intentionally using a communications facility in furtherance of a conspiracy to possess cocaine with intent to distribute. Each defendant has appealed his conviction.

Facts

Sometime in September 1981, Joyce and David Langley approached a Drug Enforcement Administration (DEA) Agent, C.T. Westmoreland, in south Texas and asked him for a job flying DEA aircraft. Instead of offering a flying job, Westmoreland offered to pay the Langleys for the names of persons involved in cocaine smuggling. Mrs. Langley put Westmoreland in contact with the defendant Gurleon Maxi Jackson. Mrs. Langley received $6,000 for her participation in the operation.

On October 14, 1981, DEA Agent Tony Tamayo, posing as a Mexican official dealing in drugs, met with Jackson in Matamoros, Mexico. At the meeting, Jackson told Tamayo that he was interested in finding someone to supply him with 10 kilograms of cocaine on a monthly basis. The two agreed on a price and place of delivery. On November 24, 1981, Tamayo phoned Jackson at a hospital in Mobile, Alabama and agreed to supply the cocaine by the end of November.

On November 25, 1981, Celestino Oliveira, a Brownsville, Texas police officer connected with the operation, telephoned Jackson as a representative of Tamayo. Jackson and Oliveira discussed the details of the exchange of the cocaine for money. After several more conversations, Oliveira met with Jackson at the Ramada Inn in Brownsville on November 29, 1981. At this meeting, Oliveira devised a plan for the actual execution of the exchange. For security reasons, Jackson and Oliveira decided to meet in a nearby Sambo's restaurant. Jackson would bring the cash to pay for the drugs and Oliveira would bring the drugs. While Oliveira and Jackson waited in the restaurant with the money, their accomplices would return to the Ramada Inn and test the drugs for purity. After Jackson's unnamed accomplice satisfied himself of the cocaine's purity, Oliveira could take the money.

After Oliveira and Jackson agreed on this plan, Nathan Hicks entered the motel room from an adjoining room and gave Oliveira an envelope containing $60,000 in cash. Oliveira counted the money. The three men then went to Sambo's. There, the envelope was placed on an empty chair at the men's table and was covered with a cowboy hat. Oliveira left the restaurant and instructed DEA Agent Thomas Lentini to enter the restaurant after a lapse of thirty minutes and indicate that the cocaine had arrived. Oliveira reentered the restaurant and joined Jackson and Hicks. After thirty or forty minutes Lentini arrived and delivered his message. At that point, Hicks went to a telephone and made a phone call. The content of the phone call was not disclosed at trial. Shortly after the phone call, Talmadge Whitley entered the restaurant, and took a seat at the table. Lentini and Hicks left the restaurant, presumably to pick up and test the cocaine. Both men were arrested outside the restaurant.

After about seven minutes, federal agents entered the restaurant and arrested Jackson, Whitley, and Oliveira. Between the time of Whitley's arrival at the restaurant and the time of the arrest, Whitley apparently did not speak to the other men despite attempts by Oliveira to engage him in conversation. During that time, Whitley did seem very watchful of the comings and goings in the restaurant, constantly turning his head from left to right.¹ 

After his arrest, Hicks indicated that two other individuals were involved in the case and that they might be armed. Agents immediately went to the two rooms in the Ramada Inn where Oliveira, Jackson, and Hicks had met in the earlier meeting. Before entering the rooms, they encountered and arrested two suspects fitting the description given by Hicks.²  The agents entered the room in which Oliveira and Jackson had previously met and saw no contraband. The agents then went through a door, slightly ajar, connecting the first room with the room from which Hicks had come at the earlier meeting. The second room contained several items used in the testing of cocaine³  and a handgun. All the contraband was in plain view. The room was registered in Hick's name.

The jury found all the defendants guilty on all counts charged. The court sentenced Jackson, Hicks, and Whitley to six years, six years, and three years, respectively.

Whitley

Whitley's only contention on appeal is that the evidence presented at trial was insufficient, as a matter of law, to convict him. Whitley argues that the government has failed to prove that he "knew of a conspiracy, joined a conspiracy or did anything in furtherance of a conspiracy". According to Whitley, the government's evidence showed only his presence in Sambo's. Nevertheless, the jury found Whitley guilty of conspiring to possess cocaine with the intent to distribute.

We must, of course, give deference to the findings of the jury. United States v. White, 5 Cir., 569 F.2d 263, 268, cert. denied, 1978, 439 U.S. 848, 99 S. Ct. 148, 58 L. Ed. 2d 149. We must view the evidence presented in the case and the inferences that may be drawn from it in a light most favorable to the government and ask whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt". United States v. Bell, 5 Cir. 1982, 678 F.2d 547, 549. "We will reverse only if a reasonably minded jury must necessarily have entertained a reasonable doubt of a defendant's guilt." United States v. Vergara, 5 Cir. 1982, 687 F.2d 57, 60; see also United States v. Galvan, 5 Cir. 1982, 693 F.2d 417, 419. Nevertheless, we must not hesitate to overturn a jury verdict when it is necessary to "guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt". Estelle v. Williams, 1976, 425 U.S. 501, 503, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126, 130. Juries must not be allowed to convict on mere suspicion and innuendo. United States v. Littrell, 5 Cir. 1978, 574 F.2d 828, 833. The test is whether the jury "could reasonably, logically, and legally infer from the evidence presented that the appellant was guilty beyond a reasonable doubt". United States v. White, 569 F.2d at 266.

In drug conspiracy cases, the government must prove beyond a reasonable doubt that a conspiracy existed, that the accused knew of the conspiracy, and that he knowingly and voluntarily joined it.⁴  United States v. Bright, 5 Cir. 1978, 550 F.2d 240, 242; United States v. White, 569 F.2d at 267. We have previously stressed that we will not lightly infer a defendant's knowledge and acquiescence in a conspiracy. Id. at 267; United States v. Johnson, 5 Cir., 439 F.2d 885, 888, cert. denied, 1971, 404 U.S. 880, 92 S. Ct. 213, 30 L. Ed. 2d 161. The government must show beyond a reasonable doubt that the defendant had the deliberate, knowing, and specific intent to join the conspiracy. United States v. Galvan, 693 F.2d at 419; United States v. DeSimone, 5 Cir. 1981, 660 F.2d 532, 537, cert. denied sub nom. Butler v. United States, 1982, 455 U.S. 1027, 102 S. Ct. 1732, 72 L. Ed. 2d 149. A showing that the defendant merely associated with those participating in a conspiracy is insufficient. United States v. Fitzharris, 5 Cir. 1980, 633 F.2d 416, 423, cert. denied, 1981, 451 U.S. 988, 101 S. Ct. 2325, 68 L. Ed. 2d 847; United States v. Littrell, 574 F.2d at 833; United States v. White, 569 F.2d at 268. Similarly, the government cannot prove a conspiracy by presenting evidence that only places the defendant in "a climate of activity that reeks of something foul". United States v. Galvan, 693 F.2d at 419; United States v. DeSimone, 660 F.2d at 537.

Viewing the evidence in a light most favorable to the government, we have little trouble holding that a conspiracy existed and that Whitley was present while parts of the conspiracy were taking place. Beyond that, the evidence shows no criminal conduct on Whitley's part beyond a reasonable doubt. Although testimony at trial showed that Whitley joined Jackson and Oliveira in the restaurant, there is no evidence indicating that Whitley knew the nature or purpose of the meeting, or even that a large amount of money was present. The government has offered no evidence indicating that Whitley was present during conversations in which the conspiracy was discussed.⁵  At the most, the evidence shows that Whitley associated with others who were involved with a conspiracy. That evidence is legally insufficient for a jury to infer, beyond a reasonable doubt, Whitley's knowing and voluntary participation in a conspiracy to possess cocaine with intent to distribute. His conviction may not rest on mere conjecture and suspicion. United States v. Fitzharris, 633 F.2d at 423; Vick v. United States, 5 Cir. 1954, 216 F.2d 228, 233.

Hicks

On appeal, Hicks argues that the trial court committed several errors that require reversal. First, Hicks contends that the trial court should have found that the government's sting operation constituted entrapment as a matter of law. Failing that, Hicks argues that the court at least should have presented the entrapment issue to the jury. Second, Hicks maintains that the district court's extensive cross-examination of defense witnesses from the bench was unnecessary and resulted in undue prejudice to his case. Hicks's third complaint is that the trial court erred in admitting the drug testing paraphernalia seized in the warrantless search of his motel room. Fourth, Hicks contends that the trial court erred by labeling his wife's testimony regarding his purpose for going to Brownsville as hearsay. Finally, Hicks argues that the district court should have allowed him to present witnesses on his own behalf at the time of sentencing.

The thrust of Hicks's entrapment argument is that the government lured him into the cocaine deal so outrageously that we should find entrapment as a matter of law. To support this contention, Hicks relies on his reputation as a successful businessman with no record of illegal conduct in the past. Because of temporary business setbacks, however, Hicks contends that he was unable to resist the pressure exerted and temptation to which he was exposed. According to Hicks, the government's scheme of trapping unwary businessmen, providing the means for the crime, and then encouraging them to commit the crime requires, at the very least, an instruction on the issue of entrapment. Hicks maintains that, having raised the issue of entrapment, the burden rests on the government to show that he was predisposed to commit the crime.

We have articulated the burden of production on a defendant in two recent opinions.

In this circuit, before the judge must instruct the jury on entrapment, a defendant must show (1) lack of predisposition to commit the crime and (2) some governmental involvement and inducement more than just providing the opportunity of facilities to commit the crime.

United States v. Fischel, 5 Cir. 1982, 686 F.2d 1082, 1085; United States v. Leon, 5 Cir. 1982, 679 F.2d 534, 538 (emphasis in original); see United States v. Anderton, 5 Cir. 1982, 679 F.2d 1199, 1201; United States v. Andrew, 5 Cir. 1982, 666 F.2d 915, 922-23. We need not decide whether the government did more than simply provide an opportunity for crime because Hicks has not shown a lack of predisposition on his part.⁶  The evidence presented at trial, however, points to his predisposition to participate in the scheme to purchase cocaine.

Hicks initially communicated with Jackson about the possibility of making a drug deal.⁷  Hicks travelled from his home in Zebulon, North Carolina to Brownsville, Texas to participate in the cocaine transaction. He then chartered an airplane in the Brownsville area and flew to Houston to pick up the cash to be used in the deal. Hicks was present at the Ramada Inn when Jackson and Oliveira worked out the details of the exchange. This evidence shows that Hicks eagerly took an active role in each step of the exchange process. In light of this evidence, we hold that Hicks failed to make a showing that he was not predisposed to taking part in the conspiracy. Therefore, an instruction on the defense of entrapment was not warranted. Our holding on the need for a jury instruction precludes the need to consider Hicks's claim that he was entrapped as a matter of law.⁸ 

On several occasions during the trial, the court interrupted the questioning of defense and government witnesses to pose questions from the bench. Hicks argues that, since the attorneys were performing competently, the trial judge should not have interfered with their questioning. According to Hicks, such intervention is error unless questions from the bench are needed to clarify a witness's testimony. He contends that not only were the district court's questions unneeded to clarify testimony, the questions prejudiced the jury against his case.⁹ 

A trial court judge has a difficult task. He must insure that evidence is presented to the jury fairly and completely, but he also must be above even the appearance of partiality. Moore v. United States, 5 Cir. 1979, 598 F.2d 439, 442. "It is the judge's duty to maintain an attitude of unswerving impartiality between the government and the accused, and he ought never in any questions he asks go beyond the point of seeing to it in the interests of justice, that the case is fairly tried." United States v. Hoker, 5 Cir. 1973, 483 F.2d 359, 366; see United States v. Daniels, 5 Cir. 1978, 572 F.2d 535, 541; Manchack v. S/S Overseas Progress, 5 Cir. 1975, 524 F.2d 918, 919. But the judge acts as an administrator of the trial, not just a moderator. Id.; Curd v. Todd-Johnson Dry Docks, 5 Cir. 1954, 213 F.2d 864, 866.

[The judge] may elicit further information [from a witness] for the benefit of the jury, and he may comment on the evidence, provided he makes it clear that all matters of fact are committed to the jury's ultimate determination. United States v. Cisneros, 491 F.2d 1068 (5 Cir. 1974), citing Querica v. United States, 289 U.S. 466, 53 S. Ct. 698, 77 L. Ed. 1321 (1933).

United States v. Davis, 5 Cir. 1977, 546 F.2d 617, 622. In short, the trial judge may participate in a trial by questioning a witness so long as he maintains an atmosphere of neutrality. See Moore v. United States, 5 Cir. 1979, 598 F.2d 439, 442.

We hold that the trial judge here conducted the trial in an evenhanded and neutral manner. In every case, the court's questions were designed to fill gaps in a witness's testimony or clear up confusion caused by the witness. The court's invitation to Jackson to explain his plea of not guilty¹⁰  actually worked to the defendant's benefit by allowing Jackson to interject the issue of entrapment into the case. The tenor of the court's questions was inquisitive rather than accusatory. Moreover, the court did not limit its questions to defense witnesses. On several occasions the court interupted the examination of a government witness to ask questions meant to clarify the witness's testimony. See, e.g., Record at 26, 64, 97, 107, 137, 257-58. Finally, the court lessened the potentially prejudicial effect of its questions by instructing the jury that it, not the court, was the sole fact-finder in the case. The court also instructed the jury that none of the court's questions or comments during the trial should be interpreted as an opinion of the court regarding guilt or innocence.¹¹  In light of all these factors, we hold that the trial court did not err in its questioning of witnesses.

At the time Hicks was arrested, he said that two more people were involved in the transaction and that they were armed. One of the arresting agents radioed other agents that at least two more suspects might be found at the Ramada Inn and that the suspects had a gun. The other agents went to the motel room where the drug exchange had been planned. The agents spotted a man and a woman outside the motel room fitting the description given by Hicks and arrested them. Following the arrest, the agents immediately conducted a cursory search of the two rooms involved in the prior meeting. The purpose of the search was to look for others who might have been involved in the cocaine deal. During the search the agents found the drug testing paraphernalia and a pistol in plain view. The trial court admitted the evidence finding that the agents had a right to search the rooms for other members of the conspiracy. Hicks contends that this evidence is the fruit of a warrantless search and should not have been admitted at trial.

In United States v. Sheikh, 5th Cir. 1981, 654 F.2d 1057, cert. denied, 1982, 455 U.S. 991, 102 S. Ct. 1617, 71 L. Ed. 2d 852, we reiterated the rule regarding searches following an arrest of nearby premises:

Arresting officers have a right to conduct a quick and cursory check of the arrestee's lodging immediately subsequent to arrest--even if the arrest is near the door but outside the lodging--where they have reasonable grounds to believe that there are other persons present inside who might present a security risk. See United States v. Diecidue, 603 F.2d 535, 558-59 (5th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 781 (1980) (security search of house); United States v. Bowdach, 561 F.2d 1160, 1168-69 (5th Cir. 1977) (security search of apartment).

United States v. Sheikh, 654 F.2d at 1071. Once the officers are legally inside the lodging, any evidence or contraband that is in plain view is subject to seizure and may be admitted into evidence. Harris v. United States, 1968, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067, 1069.

Hicks does not contend that the evidence in question was hidden from the view of the searching agents. He maintains, however, that after the arrest and restraint of the two suspects, the agents had no reason to enter the motel room without taking the time to get a search warrant. We disagree.

The agents at the motel had observed the suspects leaving the room in which the agents later discovered the evidence. They had no way of knowing that the two suspects were the only remaining people involved in the exchange. Although Hicks had said that the suspects were armed, a pat-down search following the arrest did not reveal a weapon. Thus, the agents had reason to believe that a gun was somewhere in the motel. It is clear to us that the cursory search of the motel rooms resulted from the agent's reasonable belief that an immediate security sweep of the premises was required for their own safety and the safety of others at the motel.

Another argument that Hicks presents on appeal is that the trial court erred by not allowing Hicks's wife to testify about his planned business dealings in Brownsville.¹²  The court ruled that the testimony was inadmissible hearsay. On appeal, Hicks argues that the testimony is not hearsay under Fed.Rule of Evidence 801(c) because it was not offered for the truth of the matter asserted.¹³  Instead, Hicks contends that the testimony was offered as a means of bolstering his entrapment defense by showing his state of mind before he left for Texas. In the alternative, Hicks contends that the testimony shows "prior consistent statements to defend implications of fabrication".

We need not decide whether Hicks's arguments on appeal are valid, because he did not make these arguments to the district court. The only reason given at trial for the admission of the testimony in question was the need to inform the jury of Mrs. Hicks's understanding of Hicks's motive in going to Texas,¹⁴  i.e., the truth of the matter asserted. Hicks did not argue at that time that the hearsay fell within any of the numerous exceptions to the hearsay rule. He has pursued his other arguments for admission of the testimony only at the appellate stage. We have long held that, absent a showing of manifest injustice, a litigant may not raise a theory on appeal that was not presented to the district court. Higginbotham v. Ford Motor Co., 5 Cir. 1976, 540 F.2d 762, 768 n. 10; Capps v. Humble Oil & Refining Co., 5 Cir. 1976, 536 F.2d 80, 81-82; Wolf v. Frank, 5 Cir., 477 F.2d 467, 474-75, cert. denied, 1973, 414 U.S. 975, 94 S. Ct. 287, 38 L. Ed. 2d 218. We see no manifest injustice in this case.E. Allocution

Hicks's final contention on appeal is that the district court erred in not allowing Mrs. Hicks to address the court at sentencing. Hicks argues that the requirement in Fed. R. Crim. P. 32(a) (1) that a defendant be given the opportunity to present information in mitigation of punishment gives him the right to present witnesses in his own behalf. Hicks has cited no cases that have recognized such a right and we are aware of none. Moreover, the broad construction of Rule 32(a) (1) Hicks urges would not further any recognized interests of justice. As pointed out in Moore's Federal Practice, the right of allocution has survived "more for its therapeutic effect on the defendant than its practical effect on the judge's determination". 8A Moore's Federal Practice p 32.05 (1982). The defendant must be given the chance to inform the court of any mitigating circumstances, but we see little advantage to be gained by allowing the defendant to have others testify for him at sentencing. In fact, such a judicial extension of the right of allocution would amount to a trial of the defendant's character following the trial of his guilt. We refuse to allow that extension. The trial court gave Hicks the opportunity to speak, and he spoke on his own behalf. We hold that the trial court adhered to Fed. R. Crim. P. 32(a) (1).¹⁵ 

Jackson

Jackson presents two arguments on appeal. First, he contends that the district court should have instructed the jury on the issue of entrapment. Jackson maintains, as did Hicks, that the evidence of the DEA's conduct in this case was sufficient to require an entrapment instruction. Unlike Hicks, however, Jackson produced some evidence at trial that he was not predisposed to join an illegal conspiracy. According to Jackson, he went to Brownsville only to learn if the parties to the exchange really planned to purchase cocaine. He maintains that, following his discovery of any illegal activity, he would have reported the smuggling operation to the DEA. If Jackson's story is true, he was predisposed to uncover a smuggling ring, not to commit a crime.

Nevertheless, Jackson failed to make the other essential showing that must accompany a request for an entrapment instruction; he has failed to show "some government involvement and inducement more than just providing the opportunity or facilities to commit the crime". United States v. Fischel, 5 Cir. 1982, 686 F.2d 1082, 1085. The important inquiry is whether there is any evidence that the government's conduct created a substantial risk that a person, other than one who is ready to commit it, would commit the offense. United States v. Webster, 5 Cir. 1981, 649 F.2d 346, 349 (en banc); United States v. Hill, 5 Cir. 1980, 626 F.2d 1301, 1303; Pierce v. United States, 5 Cir., 414 F.2d 163, 168, cert. denied, 1969, 396 U.S. 960, 90 S. Ct. 435, 24 L. Ed. 2d 425. To create a substantial risk, however, the government conduct must include an element of persuasion or mild coercion, such as fraudulent misrepresentations, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy, or friendship. United States v. Hill, 626 F.2d at 1304 & n. 4; cf. United States v. Fischel, 5 Cir. 1982, 686 F.2d 1082, 1085.

We see no evidence of improper government inducement in this case. Although Jackson's brief states that Mr. and Mrs. Langley testified that they "encouraged" and "induced" Jackson,¹⁶  a close reading of the record reveals that they did no more than offer him the chance to buy cocaine. That activity alone is insufficient to require an entrapment instruction. See United States v. Hill, 626 F.2d at 1304-06. The trial court did not err in refusing Jackson's request.¹⁷ 

Jackson's second argument is that the trial court's questioning of him when he took the stand overstepped the bounds of judicial discretion. In particular, Jackson assigns error to the questions quoted in footnote 9. We have dealt with the judge's conduct at trial in our discussion of Hicks's contentions on appeal. Our holding applies equally to Jackson. We see no impropriety in the trial court's questioning of Jackson.

Conclusion

We REVERSE Whitley's conviction because of the absence of any evidence that he had specific knowledge of the conspiracy to possess cocaine with intent to distribute. We AFFIRM the convictions of Hicks and Jackson.