Appendix — Fink v. United States (No. 74-820)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 73-3966

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL J. FINK and

JOHN A. GEDERS,

Defendants-Appellants.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING

(December 6, 1974)

Before MOORE, AINSWORTH and RONEY, Circuit

Judges. «

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed on behalf of Michael J. Fink in the above entitled

and numbered cause be and the same is hereby denied.

Js, Leonard P. Moore

USCJ

2nd Cir.

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Michael J. FINK and John Geders,

Defendants-A ppellants.

No. 73-3966

United States Court of Appeals,

Fifth Circuit.

Oct. 7, 1974

Defendants were convicted before the United States

District Court for the Middle District of Florida, Ben

Krentzman, J., of conspiracy to import marijuana, illegal

importation of marijuana and possession of marijuana

and they appealed. The Court of Appeals, Moore, Circuit

Judge, held that testimony of federal narcotics agent

that one defendant had reputation in community as drug

smuggler and distributor was admissible to rebut en-

trapment defense; that refusal to order prosecution

witnesses to submit themselves to defense deposition or

to order them to discuss case with counsel for defense

was within trial court’s discretion; and that directing

defendant not to discuss his testimony with anyone until

after recess did not constitute reversible error absent

showing of harm.

Affirmed.

1. Criminal Law §37(1)

Purpose of entrapment defense is to inhibit the use

by the Government of pressure tactics which cause the

commission of an offense by one who is not ordinarily

disposed to commit it. .

2. Criminal Law 837 (1)

Entrapment defense is not readily available to one

who has evidenced an inclination to commit the type of

offense with which he is charged.

3. Criminal Law §376

Once defendant indicates his reliance on entrap-

ment defense, Government is permitted to tender evi-

dence on defendant’s predisposition to commit the type

of crime charged.

4. Criminal Law §376

“Reputation” or “character” evidence is admissible

to rebut an entrapment defense.

5. Criminal Law §376

In prosecution for conspiracy to import marijuana

and importation and possession of marijuana, testimony

of narcotics agent that one defendant had reputation in

community as drug smuggler and distributor was ad-

missible to rebut entrapment defense. 18 U. S. C. A. § 371;

Comprehensive Drug Abuse Prevention and Control

Act of 1970, 88 401 (a) (1), 1002 (a), 21 U.S. C. A.

8§ 841(a) (1), 952 (a).

6. Witnesses 5274 (1)

Refusal to permit defense to question prosecution

witness, who had testified in rebuttal of defendant's

entrapment defense that defendant had reputation in

community as drug smuggler and distributor, concern-

ing specific events or activities of defendant that gave

rise to his adverse public image was within trial court’s

discretion.

7. Criminal Law §379

Character reputation is established not by what

one knows to be fact concerning another but by what

one has heard in the community about the person in

question.

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8. Criminal Law §380

Evidence of specific acts or conduct is not admis-

sible to prove or disprove the reputation that a defe~.d-

ant holds in his community.

9. Criminal. "Law 8376

isposition to commit crime of type of which the

defendant stands accused may be demonstrated for

purpose of rebutting entrapment defense by evidence

that defendant has reputation of one who has committed

a particular type of illegal act in his community.

10. Criminal Law 8580 (1)

Refusal to grant defendant continuance after pro-

secution witness had testified in rebuttal of entrapment

defense concerning defendant's reputation in commu-

nity as drug smuggler and distributor was within trial

court’s discretion.

11. Criminal Law 5569

Evidence, inter alia, that defendants had taken part

in transferring cargo of marijuana from plane to wait-

ing vehicle sustained determination that defendants

were not entrapped through pilot who had informed

authorities of plan for importing marijuana and that

defendants had not renounced their enterprise of

smuggling marijuana, despite contention that defend-

ants had attempted to persuade pilot to slow down

during flight to permit cargo to be jettisoned. 18

S. C. A. § 371; Comprehensive Drug Abuse Prevention

and Control Act of 1970, §§ 401 (a) (1), 1002(a), 21

U.S. C. A. 58 841(a) (1), 952 (a).

12. Criminal Law 5627.5 (2)

Except for capital cases, question of extent of de-

fense discovery, at least that discovery which requires

judicial assistance, is matter within discretion of trial

court. 18 U.S.C.A. § 3432.

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13. Criminal Law §627.5/2}

In exercising it. discretion with respect to determin-

ing extent of defense discovery, trial court must weigh

variety of factors and must balance need of accused for

depositions requested against possibility that prospec-

tive witnesses might be harassed or intimidated as re-

sult of their submission to the discovery process.

14. Criminal Law §627.5(2)

Refusal to order prosecution witnesses to submit

themselves to defense deposition or to order them to

discuss case with counsel for defense was within trial

court’s discretion in view of clear evidence that defend-

ants were capable of harassment:

15. Criminal Law $6661, | f

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Trial court did not improperly refuse to interfere

with alleged policy of United States Customs Service

prohibiting its agents from discussing facts of pending 5

cases with defense counsel without permission of United 5

States attorney where, when defense counsel reported

to trial court that federal agents had refused to speak

with defense without permission of United States at-

torney, trial court stated that defense counsel had the

right to talk to any witnesses who wanted to talk with

defense counsel and ordered United States attorney to

“just stay away.”

16. Criminal Law §1166.11

Depriving defendant of assistance of counsel during 0

16-hour recess by directing him not to discuss his testi-

mony with anyone during the recess did not constitute

| reversible error absent showing of harm to defendant.

Appeals from the United States District Court for

the Middle District of Florida.

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Before MOORE,* AINSWORTH and RONEY, Cir-

| cuit Judges. :

MOORE, Circuit Judge:

This is an appeal by John Geders and Michael Fink

from a judgment of conviction by the United States

District Court for the Middle District of Florida, the

Hon. Ben Krentzman, Judge, entered pursuant to a jury

verdict. Appellants were convicted on all three counts

of an indictment charging them with: (a) conspiracy

to import approximately one thousand pounds of mari-

juana into the United States in violation of 21 U.S.C.

§ 952(a) and 18 U.S.C. § 371; (b) illegal importation of

said marijuana into the United States; and (c) posses-

sion of marijuana in violation of 21 U.S.C. § 841 (a) (1).

The government alleged that appellants Geders and

Fink conspired with seven others, Rufus’ Randolph

Surles, Jr., James M. Mahoney, Randy Kilgore, Fred

Fink, Steven Patrick, Tom Waddington (now deceased)

end David Butler, to smuggle marijuana into this

country by air from Columbia, South America, via

Inagua, The Bahama Islands. According to the prose-

cution, the plot germinated in September 1972 when

John Geders, Randy Kilgore and Michael Fink concluded

that together they possessed the wherewithal to smug-

gle a large quantity of marijuana into this country.

Geders agreed to provide a South American “contact”

or drug supply while Fink promised to find financial

backing for the venture. Randy Kilgore assured the

others that he would make arrangements with a know-

ledgeable and trustworthy pilot who would be able and

willing to fly the cargo of drugs into the United States

undetected.

* Hon Leonard P. Moore, Senior Circuit Judge for the

Second Circuit, sitting by designation.

PROCES EEL OBL SIDI P IEE DOPE

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Michael Fink made good on his promise. He intro-

duced James M. Mahoney and Tom Waddington to the 4

scheme, and they agreed to supply the necessary capital. k

After a few false starts. Randy Kilgore found. David. E

Butler. a pilot with access to a Piper Aztec aircraft,

who was willing to make the trip to Columbia for a

$10,000 fee plus expenses and fifty pounds of marijuana.

Additional conspirators also emerged. Rufus Randolph

Surles, Jr., agreed to provide a trailer, of the type

normally used by vacationers on camping trips, to

which the marijuana could be transferred once it was

landed. Steven Patrick agreed to drive the camping

trailer.

In David Butler the other conspirators found not

only an able pilot but also a man who seemed well versed

in the lore of the smuggling business. On several oc-

casions Butler alluded to his prior experience in the

field. He advised his employers to land the marijuana-

laden plane at Lehigh Acres, an abandoned housing de-

velopment near Tampa, Florida, and made other helpful

suggestions with respect to the details of the illegal

importation. He suggested reentry into the United States

via the Bahama Islands where he claimed to have the

custom officials bribed; he suggested that the other

conspirators, when meeting the plane at the time and

place of unloading, should be equipped with walkie-

talkies for communication with the plane and should

carry roofing nails to strew in the path of would-be-pur-

suers.

Early Sunday morning, November 26, 1972, David

Butler, John Geders and Jim Mahoney boarded Butler’s

rented plane and took off for Columbia, South America.

On the return trip, after stopping at Inagua, the plane

landed at the pre-arranged location near Tampa. The

marijuana was transferred from the plane to the

camper which left the landing site escorted by Randy

Kilgore and Michael Fink. The caravan did not get far,

however, because federal agents soon closed in. Steven

Patrick, the driver of the camping trailer filled with

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marijuana, was immediately apprehended. Kilgore and

Fink eluded immediate capture but were eventually

arrested.

It seems that this well orchestrated scheme never

really had a chance for success. The authorities had

been informed of the group’s plans far in advance by

the pilot, David Butler. For his help in thwarting the

smuggling attempt, the United States Customs Service

agreed to permit Butler to retain the fee paid to him

by the other conspirators.

The trial of the conspirators began on October 9,

1973.' Prior thereto Randy Kilgore and Steven Patrick

pleaded guilty to a single conspiracy count and agreed

to testify for the prosecution. Although David Butler

was indicted along with the others, the government

moved to dismiss the charges against him and the court

granted the motion.

As their primary defense at trial, appellants Geders

and Fink argued that they had been entrapped by

Butler, the government informer. Not only did he assist

them in the furtherance of the importation scheme but,

according to appellants, Butler induced them to com-

mit the crime and had been paid to do so by the govern-

ment who hired Butler as a sort of modern day bounty

hunter. As a matter of fact, appellant Geders who was

traveling in the plane with Butler on the trip from

South America, claims that when the plane landed in

Inagua before its reentry into the United States he

was informed by a native that Butler appeared to be

working with the police. After the plane was again in

the air, Geders tried to persuade Butler to slow the

plane down so that he and Mahoney could dump the

marijuana into the sea. Butler ridiculed Geders’ appre-

1. Defendant James M. Mahoney was granted a sever-

ance and his case was tried separately.

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hensions and refused to permit anyone to unload the

contraband until designated rendevous was made.

The government, on the other hand, insisted that

Butler had, at all times, merely assisted a plot which

had begun before he entered the picture, and that any-

thing he did which appeared to further the conspiracy

was done to gain the confidence of the conspirators, a

permissible objective in undercover police work.

The entrapment defense was presented to the jury

which, nevertheless, returned a guilty verdict.

On this appeal appellants urge that fourteen sepa-

rate errors were made in the court below which singly

or together compel reversal of the convictions rendered

by the jury. Many of the claims raised by the appellants

are frivolous and warrant no discussion in this court.

Efficiency demands that many of the remaining ques-

tions be treated in combination.

I.

Appellants have broadly attacked the district

court’s handling of the entrapment issue. They argue:

that the government should have been prohibited from

introducing unflattering evidence with respect to de-

fendant Geders’ reputation; that the defense was un-

fairly barred from either ascertaining the events upon

which this reputation was based or introducing rebuttal

character testimony after the prosecution had attacked

defendant Geders’ reputation; and that the govern-

ment’s participation in the smuggling enterprise

through its avowed agent, David Butler, was so per-

vasive and so critical to the consumation of the crime

that any prosecution of the appellants is unconscionable.

Throughout the trial appellants placed substantial

reliance on an entrapment defense, i. e., on the argument

that they were reluctant participants in a criminal

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scheme engineered by a government agent who, for

reasons of financial gain, had employed a tremendous

sales pitch” to overcome appellants’ natural antipathy

toward the commission of illegal acts.

1-31 The purpose of the entrapment defense is to

inhibit the use of pressure tactics by the government

which cause the commission of an offense by one who

is not ordinarily disposed to commit it. See Sherman

v. United States, 356 U.S. 369, 78 S.Ct. 819. 2 L.Ed.2d

848 (1958): Sorrells v. United States, 287 U.S. 435, 53

S.Ct. 210. 77 L.Ed. 413 (1939). Naturally, the defense

is not readily available to one who has evidenced an

inclination to commit the type of offense with which

he is charged. The government, therefore, once a de-

fendant indicates his reliance on the entrapment de-

fense, is permitted to tender evidence on the defendant’s

predisposition to commit the type of crime charged.

In this case the prosecution introduced Charles

Hudson. a federal Narcotics Agent, who testified that

he had talked to confidential informants and had ex-

amined intelligence files in the Hillsborough County,

Florida. Sheriff’s Office and had thereby ascertained

that defendant Geders had a reputation in his commun-

ity as a drug smusgler and distributor. When the de-

fense asked to see the files on which the witness’ testi-

mony was hased or to be given reference to the specific

events contained therein, it was rebuffed by the court

which admonished the defense that it would be contrary

to the rules of evidence for the prosecution to admit

evidence of the specific acts of defendant Geders which

gave rise to his unsavory reputation.

[4] It has long been the rule in this Circuit that

“reputation” or “character” evidence can be introduced

by the government to rebut an entrapment defense. In

fact, it has been specifically held that reputation evi-

dence of the sort introduced in this tria] is permissible.

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We have repeatedly held that once the defense of

entrapment is raised the government may introduce

hearsay testimony concerning the defendant’s past

reputation as bearing upon the defendant’s predis-

position to commit the crime and the reasonable-

ness of the conduct by the government agents.

Washington v. United States, 5 Cir., 1960, 275 F.2d

687; Rocha v. United States, 5 Cir., 1968, 401 F.2d

529; Thompson v. United States, 5 Cir., 1968, 403

F. 2d 209. Moreover, in the case of Thompson v.

United States, supra, this court specifically ap-

proved the use of reputation evidence in the form

of testimony which the witness gleaned from the

reports of a local police department.

United States v. Robinson, 446 F.2d 562, 563-564 (5th

Cir. 1971).

[5-8] Not only was the trial court correct in ad-

mitting Agent Hudson’s testimony, it was also well

within established principles when it refused to permit

the defense to question the witness about the specific

events or activities of defendant Geders that gave rise

to his adverse public image. Character reputation is

established not by what one knows to be fact concern-

ing another, but by what one has heard in the commu-

nity about the person in question. Michelson v. United

States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168

(1948). Thus, evidence of specific acts or conduct is

not admissible to prove or disprove the reputation that

a defendant holds in his community. Stewart v. United

States, 70 App.D.C. 101, 104 F.2d 234 (1939).

Defendant Geders also argues that after the evi-

dence with respect to his reputation was introduced by

the prosecution, he was forbidden from rebutting it, or

at least attenuating its impact, by introducing favor-

able reputation evidence. In fact, all that actually hap-

pened was that the court refused to grant the defend-

ant a continuance, after Agent Hudson testified, so that

he might search for character witnesses of his own.

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Defendant Geders argued that he needed the continu-

ance because Agent Hudson’s testimony was of an un-

expected and surprising nature.

[9] It is well settled that once a defendant indicates

his intention to rely on an entrapment defense, the pro-

secution can be expected to prove, if it can, that the

defendant had a predisposition to commit the type of

crime of which he stands accused. In this Circuit pre-

disposition can be demonstrated by evidence that in his

community the defendant had the reputation of one

who committed a particular type of illegal act. Such

evidence can by no stretch of the imagination be con-

sidered surprising or unexpected.

[10] In view of the prevailing case law, Agent

Hudson’s testimony did not introduce a new issue and

the decision whether or not to grant a continuance to

the defense under the circumstances was well within

the discretion of the trial judge. He did not abuse that

discretion.

Finally appellants argue that, all things considered,

the government’s conduct was so unconscionable that

the prosecution ought to be dismissed. In making this

argument appellants put great emphasis on the testi-

mony of John Geders who stated that on several occa-

sions subsequent to leaving the Bahamas on their re-

turn to this country, he and co-defendant James Ma-

honey attempted to persuade Butler, the police agent

and pilot, to slow down so that they might jettison their

illicit cargo. According to Geders, Butler refused. Thus,

as the defense tells it, the defendants, through Geders

and Mahoney, had renounced their criminal enterprise

and were attempting to disassociate themselves from it.

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the defendants were entrapped by the government

into the commission of the crimes charged. This argu-

ment had already been presented to the jury with great

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force and we see no reason to interfere with the jury’s

valuation of it—something that we could do only if we

found that the jury had acted upon insufficient evi-

dence or improper instructions, Neither ground is

present here. The jury was undoubtedly persuaded by

the uncontested fact that once the plane landed all the

defendants present, including Geders, took part in trans-

ferring the cargo of marijuana to the waiting camper.

This course of action seems completely inconsistent

with defendant Geders’ tale of renunciation and entrap-

ment.

II.

Appellants’ second major contention is that their

defense efforts were hamstrung by the trial court’s

refusal to afford them its assistance in their attempts

to obtain adequate pre-trial discovery. On numerous

occasions the defendants asked the court to order var-

ious prosecution witnesses to submit themselves for

deposition or, at the very least, to order these witnesses

to discuss the facts of the case with the defense attor-

neys. Their pleas were consistently and, according to

appellants, unfairly rebuffed. Appellants argue that the

court’s refusal to compel discovery left them “deaf,

dumb and blind, and totally unable to formulate a pro-

per defense . . .” and constituted a denial of fundamental

fairness.

Appellants concede that there is no provision in

the Federal Rules of Criminal Procedure, nor anywhere

else that specifically directs the trial court to order

prosecution witnesses to give depositions to the defense

or to submit themselves to pre-trial oral interrogation

at the hands of defense counsel. Nevertheless, appellants

argue that such action by the trial court, which is not

inconsistent with those rules, is vital to the mantenance

of procedural fairness as that principle is embodied in

the Federal Constitution.

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The constitutional status of the right of a criminal

defendant to depose witnesses was settled, at least in

this Circuit in United States v. Hancock, 441 F.24 1285,

1286, 1287 (5th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct.

81, 30 L.Ed.2d 63 (1971), where Chief Judge Brown

wrote:

government witnesses and a discovery order for

the purpose of taking their depositions violated his

rights under the Fifth and Sixth Amendments. . .

[With the scope of discovery in criminal prosecu-

tions narrower than it is in civil cases, Campbell v.

Eastland, 5 Cir., 1962, 307 F.2d 478, 487, cert. de-

nied, 371 U.S. 955, 83 S.Ct. 502, 9 L. Ed. 2d 502, and

in the absence of a rule which permits the taking of

depositions of witnesses who will appear at the trial

of a criminal case, we cannot say at this juncture

that such a procedure has yet been elevated to a

constitutional plane even though some states have

seen fit to adopt it.

(Emphasis supplied).

Moreover, appellants’ arguments notwithstanding,

at last one Circuit Court of Appeals has held that Rule

16 (b) of the Federal Rules of Criminal Procedure for-

bids a trial court from ordering those who will serve as

witnesses for the prosecution to submit to defense depo-

sition. See United States v. Conder, 423 F.2d 904, 910

(6th Cir. 1970).

2. 18 U.S.C. S 3432 requires that in capital cases the

defendant be furnished a list of the names and ad-

dresses of the witnesses to be called by the govern-

ment. The special status of pre-trial discovery in

capital cases is discussed in Gregory v. United

States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966).

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[12] The general view, however, is that, with the

exception of capital cases, the question of the extent

of defense discovery, at least that discovery which re-

quires judicial assistance, is a matter within the dis-

cretion of the trial court. United States v. Richter, 488

F.2d 170, 175 (9th Cir. 1973). That discretion is not

easily abused. Denial of a motion to take a deposition

is . . . reviewable on appeal from a judgment of con-

viction but defendant has a heavy burden to show an

abuse of discretion by the trial court, and no defendant

thus far has prevailed on such an appeal.” C. Wright, I

Federal Practice and Procedure § 242 at 482 (1969).

[13] In exercising its discretion the trial court must

weigh a variety of factors. For instance, it must balance

the need of the accused for the depositions requested

against the possibility that prospective witnesses might

be harassed or intimidated as a result of their submis-

sion to the discovery process. United States v. Cole, 449

F. 2d 194, 198 (8th Cir. 1971), cert. denied, 405 U.S. 931,

92 S.Ct. 987, 30 L.Ed.2d 806 (1972).

[14] In this case there was clear evidence that the

defendants were capable of harassment. One of the

conspirators, who at trial testified as a witness for the

prosecution, stated that appellant Geders carried a gun

during the smuggling operation which he intended to

use against David Butler if he sensed that Butler in-

tended a double-cross. Furthermore, that same witness,

Randy Kilgore, expressed his fear that his decision to

testify for the prosecution might mark him or the

members of his family for some act of revenge by the

other conspirators. Under the circumstances we cannot

say that the trial judge abused his discretion when he

refused to order prosecution witnesses to submit them-

selves to defense deposition or to order them to discuss

the case with counsel for the defense.

Finally, appellants claim that reversible error re-

sulted from the court’s refusal to interfere with the

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policy of the United States Customs Service which pro-

hibits its agents from discussing the facts of pending

cases with defense counsel without the permission of

the United States Attorney.

ensued:

Mr. Rinehart: Right. I feel that at this time we

should be able to talk to these witnesses, and

that they should be instructed that they should

talk to us.

The Court: .. . You have got a right to talk to any

witness who wants to talk to you. Lou can

talk to any of them. I will say this you can talk

to anybody, period.

When I say “period,” I mean there is no limitation.

And, Mr. Blasingame, you just stay away.

T. 910-912. (Emphasis supplied).

Appellants’ contentions with respect to pre-trial

discovery have been based, by and large, on some un-

fair characterizations of federal criminal procedure.

Appellants’ Brief, at 8. However, they go too far when

they conclude that this observation compels the taking

of depositions. Appellants are ignoring the provision,

Geders took the stand to testify in his own behalf. After

being examined on direct until 4 55 pm. he was tendered

for cross-examination. The prosecution moved for a

granted the motion and, after the jury had been with-

drawn, it addressed defendant Geders, saying:

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Now, Mr. Geders, will you stand up. I direct you

not to discuss your testimony in this case with

anyone until you are back here tomorrow morning

at 9:30 for the purpose of being cross-examined.

To deprive an accused defendant and his counsel

of the right to consult with each other during an

eighteen hour court recess was most certainly de-

privation of the defendant’s constitutional right to

consult counsel] at all stages of the proceeding. We

can find no justification for imposing a restriction

of silence between accused and counsel during a

trial recess. We reject the Government contention

that defendant and his counsel must prove affirma-

tively the exact prejudice produced by this injunc-

tion in a federal prosecution... . “The right to have

the assistance of counsel is too fundamental and

absolute to allow courts to indulge in nice calcula-

tions as to the amount of prejudice arising from

its denial.”

The United States Court of Appeals for the Second

Circuit has more recently faced an identical fact situa-

tion, however, and it has required the defendant to make

some showing of prejudice before the error of the trial

court in forbidding lawyer/client consultation for some

limited period rises to the status of reversible error.

Leighton’s [the defendant’s] objection to the ruling

of the trial court that he could not consult with his

attorney during the luncheon recess is framed in

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terms of the violation of his right to counsel. .. .

At no time during, before, or after the recess, did

either Leighton or his attorney indicate that they

did in fact have something to discuss which might

have affected Leighton’s testimony or course of

action. Leighton’s attorney did object to the judge’s

ruling, but the objection appears to be an attempt

to sow reversible error into the record, rather than

an effort to indicate to the trial judge that the at-

torney and client had something to discuss.

Leighton’s reliance upon United States v. Venuto,

182 F.2d 519 (3 Cir. 1950), is misplaced. . . . Its

[the ruling forbidding attorney/client communi-

cation] application to the defendant was quite

plainly uncalled for, and we are unable to under-

stand why it was sought or made as to him. We

will not, however, reverse the conviction solely on

this ground when we can discern no actual harm

to the right of effective assistance of counsel, and

are convinced that there was none.

United States v. Leighton, 386 F.2d 822 (2d Cir. 1967).

Because, like the Second Circuit, “we can discern

no actual harm. .. and are convinced that there was

none,” we must reject appellants’ contention that de-

fendant Geder’s deprivation of the assistance of counsel

constitutes reversible error.

We find all other assignments of error raised by

appellants to be without merit. The judgment of the

district court is therefore affirmed.