Appendix — Edenfield v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. )

)NO. 1:90-CR-415

JAMES EDENFIELD and )

JOHN EDENFIELD )

UNITED STATES Or AMERICA )

)NO. 1:90-CR-416

vs. )

)

STEVEN T. FRADY )

ORDER

This matter comes before the court

upon the Magistrate’s Report and Recom-

mendation as to defendant John M. Eden-

field, defendant James Edenfield, and

defendant Steven Frady.

The court adopts, with some addi-

tions, the findings of fact as found in

the Magistrate’s Report and Recommenda-

tion. The Magistrate found that in the

summer of 1989 Tony Watson was a business

la

partner with Allen Adams in a used car

business in Thomaston, Georgia. That

summer the used car business was failing.

Tony Watson had been a lifelong friend of

the defendants John and James Edenfield

who are sons of a prominent businessman

in Thomaston. Watson had used cocaine on

a social basis with both Jim and John on

a number of occasions. Typically John

and Jim Edenfield would merely share

cocaine with him or give him cocaine for

his own use. On the few occasions when

Watson bought cocaine from John and Jim

Edenfield it was understood that he was

paying the same price that either John or

Jim had paid Sox the cocaine.

Sheriff Greathouse and others had

heard "street talk" that the Edenfields

were involved in cocaine. However, all

the information indicated that the Eden-

ye

fields were users of cocaine and would

sometimes distribute cocaine to others in

amounts of a gram or less, purely on a

social basis. No one had information

that the Edenfields were distributing

cocaine for profit or in large amounts.

In spite of the lifelong friendship,

Watson was jealous of the Edenfields’

wealth and he believed the Edenfields

were laughing at his financial plight.

He further resented the fact that John

Edenfield, Sr. was a director of a bank

that was pressuring him. Watson there-

fore decided he would help law enforce-

ment get the Edenfields if he could get

paid a sizeable amount of money. Watson

often remarked that his way out of the

trouble would be Jim and John. He felt

he could take advantage of Jim Edenfield.

3a

Watson proposed to his partner,

Allen Adams, that they approach law

enforcement officials about cooperating

against the Edenfields and the black

crack dealers in Thomaston. Adams was

apprehensive about being involved but

went along at first because he thought

they were going to talk to the officers

about black crack dealers’ drug money

being used to buy cars from their used

car lot. He wanted to know if the used

car lot was being watched by law enforce-

ment officers.

Adams and Watson met with Sheriff

Merrill Greathouse at a trailer on the

river in Useda Codnte apparently owned

by Sheriff Greathouse’ s son, Dan

Greathouse. Watson told Sheriff

Greathouse that he and Adams were willing

to work undercover. Sheriff Greathouse

oat

was receptive but no deal was made. They

agreed to meet again about the proposal.

When Sheriff Greathouse stood for

re-election in 1988, a campaign party on

his behalf was held at John Edenfield,

Sr.’s cabin. In the middle of the party

John Edenfield, Sr. angrily confronted

Sheriff Greathouse because he had recent-

ly learned that Sheriff Greathouse was

investigating a van that had been driven

by Bob Searcy. Searcy was a loyal enm-

ployee of John Edenfield’s Sr. Sheriff

Greathouse admitted that the investiga-

tion proved to be negative. The investi-

gation caused John Edenfield, Sr. to

become a supporter of Mountain Green who

was running against Greathouse for sher-

iff. It was a close race; Greathouse,

however, prevailed in a runoff.

5a

So ail

The next meeting concerning Watson

and Adams working as informers occurred

on August 31, 1989. This meeting, set up

by Allen Adams, occurred at the home of

State Trooper B. C. Standard who was

related by marriage to Adams. Adams

insisted that the meeting be held at

Standard’s house, because he felt more

"secure" there. Sheriff Greathouse, GBI

Agent Charles McMichen, Allen Adams, and

Tony Watson were present, along with B.

C. Standard. The possibility of Watson

and Adams working undercover against

certain black crack dealers, including a

person named "Hoe-Doe.", was discussed.

They also talked about what Watson could

do with the Edenfields and their suppli-

er, Larry Selph, and his source. Watson

wanted significant money up front. He

started at $50,000, reduced the amount to

6a

$20,000, and ultimately came down to

$10,000. No specific amount was prom-

ised. Watson was told that the payment

would depend on what was done. Sheriff

Greathouse and Charles McMichen explained

to Watson that they could not pay him up

front. He would have to prove himself as

an informer and would be paid for what he

produced. Watson was told that the GBI

and the Upson County Sheriff’s Office

would work with him on a 50/50 basis but

that payments would be made only for

results or "COD." No specific agreement

was reached at that time. After this

meeting Adams backed out of the deal and

was no longer involved.

Although no clear understanding was

reached at the August 31, 1989 meeting,

the Sheriff’s office apparently already

considered Watson to be an undercover

Ja

operative and may have begun paying him

small amounts of money. The Upson County

Confidential Informant ledger indicates

that Sheriff Greathouse withdrew $200 in

undercover informant funds on August 31,

1989, for payment to "CI-81", Waton’s

informant number.

On September 7, 1989, Watson, who

apparently had been given a beeper number

by Greathouse, reached Greathouse through

the beeper and told him that he was at

Houston’s Restaurant near Lenox Square in

Atlanta, Georgia. He stated that he was

with John Edenfield and that Edenfield

was about to purchase some cocaine from

a person named Larry Selph. Greathouse

immediately contacted McMichen and it was

agreed that if John Edenfield in fact

purchased cocaine Watson would wear

sunglasses during the return trip to

Thomaston. The officers would be on the

lookout for Watson and John Edenfield,

ostensibly in order to make an arrest if

they observed Watson wearing the sun-

glasses. According to Watson, John

Edenfield did purchase half an ounce of

cocaine and Watson wore the sunglasses on

the return trip. Although Greathouse

felt certain he saw the sunglasses, he

and McMichen did not stop the car, be-

cause Watson had not yet proven himself

reliable. Later Watson was told by

Greathouse that the reason that they did

not make a stop was because they could

not tell whether or not Watson was wear-

ing the sunglasses.

On September 11, 1989, Jim Edenfield

apparently called Watson and told him to

come over and get some cocaine. Watson

met with Greathouse who watched him go in

9a

Jim Edenfield’s house. Watson was

searched before going into the house,

stayed approximately two minutes, and

returned with a small piece of paper

wrapped with tape, marked with an "x."

It contained a gram or less of cocaine.

The Sheriff had clear evidence that Jim

Edenfield had provided Watson with a

small amount of cocaine, but again, no

arrest was made.

On September 16, 1989, Watson called

Greathouse and said that he and Jim

Edenfield had received two "eight balls"

(1/8 of an ounce or 3 1/2 grams each) of

cocaine from Larry Selph in Atlanta. He

said he could ‘buy one of the eight balls

from Jim Edenfield. On September 18,

1989, Watson met with Greathouse and

McMichen and was wired. He was given

$250 to make the buy. Watson made the

10a

purchase, but due to the fact that the

cocaine was weak, Jim had sold him the

eight ball for only $65. This was appar-

ently the same amount Jim had paid for

it. Watson kept the balance of the

money .

There was no further undercover

activity until October 14, 1989, when

Watson called Greathouse and told him

that Jim Edenfield wanted to go to Atlan-

ta to buy some cocaine. Watson himself

had arranged for this purchase. The

cocaine was to be obtained from Steve

Frady at the Varsity. Frady was an old

friend of Watson’s whom he had gotten to

know through the used car business. He

had obtained cocaine from Frady on a

social basis on a number of occasions.

Watson knew that Frady knew people from

whom larger amounts of cocaine could be

lla

obtained. Watson suggested that Frady be

brought in as a source for the cocaine to

be bought by the Edenfields so that he

could better control the transactions.

McMichen called Special Agent James

Tarvin of the GBI to observe the transac-

tion at the Varsity and to take pictures.

Watson later called and said that after

the purchase of the cocaine at the Varsi-

ty, Jim Edenfield was taking all of the

cocaine to his house to weigh it. Watson

was given $250 to make another controlled

buy of an eight ball. Watson was

searched and went to Jim Edeafield’s

house and return with what appeared to be

an eight ball of cocaine. Again, even

though this was the third controlled buy

and the officers had plenty of probable

cause to go ahead and execute a search

12a

warrant at Jim Edenfield’s house, no

action was taken.

On October 21, 1989, a controlled

buy of cocaine was made by Watson from

Jim Edenfield. There had now been sever-

al separate controlled buys and some were

witnessed and photographed.

By this time Watson had been paid

approximately $3600 for his informant

work and to purchase cocaine. Two one

thousand dollar payments, one by the

Sheriff and one by the GBI had been made

on October 5 and 6, 1989, in conformity

with the 50/50 understanding. Apparently

Watson needed the money to pay a loan and

Greathouse and McMichen agreed to pay him

the $2,000 for the work he had already

done at that point. Nevertheless, no

arrests had been made.

13a

Sheriff Greathouse had brought

McMichen into the case because he wanted

some insulation from the charges that the

case against the Edenfields was politi-

cally motivated. Sheriff Greathouse also

testified that the GBI wanted to work a

trafficking case against Frady. To work

a trafficking case they would have to

catch Frady selling an ounce of cocaine.

Frady was not arrested until the investi-

gation was transferred to the United

States Attorney’s office many months

after the November 10, 1989, arrest of

Jim Edenfield.

Greathouse and McMichen were inter-

ested in catching an Edenfield on a

trafficking charge. Sheriff Greathouse

and Agent McMichen wanted a cocaine

trafficking case under 0.C.G.A. § 16-13-

31 against an Edenfield. If they could

l4a

catch an Edenfield in possession of more

than an ounce of cocaine, under 0O.C.G.A.

§ 16-13-31(a) (1) (A), they would be guar-

anteed a minimum term of imprisonment of

ten years and a $100,000 fine, without

the possibility of probation.

Watson contends that the Sheriff

agreed on October 21, 1989, to pay him

$10,000 if he could get Jim Edenfield in

a car alone with over an ounce of co-

caine. Watson testified that the $10,000

was to be paid $4,000 on October 23rd and

$6,000 after the arrest. The Sheriff’s

recollection of this is different. He

admits paying Watson $4,000 on the 23rd

of October, 1989, but denies any promise

to pay another $6,000. Sheriff Great-

house borrowed $3,000 personally from the

West Central Georgia Bank and obtained

15a

another $1,000 from unknown sources to

make up the $4,000 payment to Watson.

Watson testified that he was not

given any training or instructions as to

the law of entrapment. Sheriff Great-

house testified that Watson "was defi-

nitely using alcohol and in all probabil-

ity cocaine" during the period that he

was working as an informant.

On November 10, 1989, Jim Edenfield

called Watson and said he wanted to buy

"14." Watson interpreted this to mean

that Edenfield wanted to buy $1,400 worth

of cocaine, which at that time was ap-

proximately an ounce. Watson immediately

called Sheriff. Greathouse and told him

that Edenfield wanted to buy an ounce.

Watson contacted Frady in Atlanta and

ordered an ounce. On one or two previous

16a

occasions Watson had bought similar

quantities of cocaine from Frady.

When Watson was next contacted by

Jim Edenfield he learned that when Jim

Edenfield said he wanted to buy 14, he

actually meant 14 grams (approximately

1/2 ounce), the amount that Jim Edenfield

had purchased previously on October 14,

1989, not $1,400 worth. Jim Edenfield

did not intend to buy a whole ounce of

cocaine. Watson reported this immediate-

ly to the Sheriff. The Sheriff asked

Watson to meet with him and McMichen

either at the local DOT office or at

McMichen’s cabin.

Watson was instructed ‘to buy the

additional half ounce of cocaine and he

was given $800 by the Sheriff to purchase

the additional half ounce, plus an eight

ball. McMichen testified that he told

17a

Watson to by an extra eight ball or

quarter in order to be sure there would

be enough to make a trafficking case.

McMichen testified that he gave Watson

$500 to buy the additional cocaine and

that the money was serialized so it could

be traced through to Frady. They were

attempting to work a trafficking case on

Frady which would necessitate Frady

selling over an ounce of cocaine. Even

though the money was serialized, the

agents did not arrest Mr. Frady. Mr.

McMichen stated that Frady was not ar-

rested because it would reveal the fact

that Mr. Watson was a confidential infor-

mant.

As part of the plan, an automobile

was to be left for Watson in Griffin.

Watson was to tell Edenfield that he

needed to pick the car up in Griffin on

18a

the way back from Atlanta. Watson would

give all the cocaine to Jim Edenfield to

be later weighed and divided up at Jim

Edenfield’s house. This would mean that

Jim would be in possession of more than

an ounce of cocaine, more than half of

which had been purchased by Watson with

government money, even though Edenfield

only intended to buy a half ounce of

cocaine.

On the way from Thomaston to Atlan-

ta, Watson told Jim Ecenfield that he was

going to buy the other half ounce of

cocaine from Frady. When they got to

Atlanta, Watson and Jim Edenfield parked

in the parking lot at the Varsity. Jim

Edenfield stayed in the car while Watson

left and met with Frady. Watson bought

the one ounce from Frady and asked Frady

to sell him an additional small amount.

19a

This was in accord with the plan to make

sure that the total amount was more than

an ounce. Frady sold him another eighth

of an ounce. The ounce was in one pack-

age and the eighth in another. Before

going back to the car Watson poured the

small package of cocaine into the larger

package. He gave the cocaine to Jim

Edenfield upon returning to the car and

Jim Edenfield put it under the seat.

As planned, Jim Edenfield dropped

Tony Watson off in Griffin, ostensibly to

pick up the car. Jim Edenfield then

drove off by himself with more than an

ounce of cocaine in the car. Watson

confirmed to the officers that Jim Eden-

field now had in his possession more than

an ounce of cocaine. The arrest signal

was given and Jim Edenfield was pulled

over. The cocaine was eventually discov-

20a

ered and Jim Edenfield was charged with

trafficking in cocaine because of his

possession of more than an ounce of

cocaine.

Ton. Watson continued to operate

undercover after the arrest. He met with

Jim Edenfield’s wife and took possession

of certain items which had not been found

during the search of Jim Edenfield’s

house immediately after the arrest.

However, it was feared that Tony Watson’s

role would soon be discovered. Agent

James Tarvin told Watson to get out of

town and Watson complied. Eventually he

moved to South Carolina.

After the arrest none apparently

thought that he was entitled to a balance

of $6,000 and he asked for it. He testi-

fied that Tarvin laughed at him and told

him he had been paid well for what he had

21a

done. He complained to Sheriff Great-

house and Watson testified that Sheriff

Greathouse told him that the GBI had not

done its part. Sheriff Greathouse appar-

ently paid Watson an additional $1,000

following the arrest. This $1,000 was

paid approximately the first part of

December, about the time that Watson left

the State of Georgia. When he asked

Tarvin for more money, Tarvin gave him

$160 and told him he would have to talk

to McMichen and Greathouse for any other

money. Watson testified that he never

bought an ounce of cocaine for the Eden-

fields before this investigation. Watson

was never told that payments to him

depended on a conviction of Jim or John

Edenfield; however, Watson understood

that he would be receiving $10,000 to

22a

"get" an Edenfield in possession of an

ounce or more of cocaine.

Watson was later contacted by Mr.

Ron Barfield, an attorney, who was repre-

senting the Edenfields. Watson was

promised the sum of $25,000 if he could

produce a tape of Agent Jimmy Tarvin

describing the incident of how Jim Eden-

field was "framed." He was paid $17,500

but felt they still owed him $7,500.

The Edenfields and Frady contend

that, when the circumstances of the cases

against them are viewed in their entire-

ty, the governmental conduct amounts to

a deprivation of their due process

rights. They contend that Sheriff Great-

house was acting out of revenge against

the Edenfields because of the disagree-

ment that Greathouse had with John Eden-

field, Sr.

23a

The defendants move this Court to

dismiss the indictments against them

based upon the Fifth Amendment’s guaran-

tee of due process of law. They contend

that the police investigation in this

case either resulted in entrapment as a

matter of law or amounted to a violation

of their substantive due process rights

because of the improper nature of law

enforcement activities which resulted in

the arrests of the defendants.

Based upon the recent Supreme Court

decision in Jacobson v. United States,

___—=«v.B. _,:«112 « 8.CR. 1535 (1992),

the court finds correct the Magistrate’s

determination that the defendants have

failed to make a showing of entrapment.

All the defendants clearly possessed a

predisposition to violate laws prohibit-

ing cocaine use, possession, or sale.

24a

However, law enforcement conduct in

this matter is extremely troublesome.

The Supreme Court has expressed the

possibility that police overinvolvement

in the planning and execution of a crime

may be so outrageous as to violate due

process principles. See United States v.

Tobias, 662 F.2d 381, 385-86 (1981).

Whether government conduct rises to the

level of a due process violation by

offending the prevailing notions of

fairness, justice, and decency expected

in the conduct of an investigation and

prosecution turns on the totality of the

circumstances. Id. at 387.

In Tobias, the Eleventh Circuit

delineated the outer limits to which law

enforcement representatives may go "in

the quest to ferret out and prosecute

crimes." Id. In Tobias, the DEA set up

25a

a chemical supply company and placed an

advertisement in High Times Magazine

offering sales of chemicals and laborato-

ry equipment. Tobias contacted the

supply company requesting and receiving

information about the company. Tobias

then placed an order for various chemi-

cals which were never sent. Soon after

placing his order, Tobias called the

supply company to cancel his order be-

cause he had discovered that he lacked

sufficient knowledge and equipment to

manufacture cocaine. Before he could

cancel his order, a DEA Agent inquired as

to what Tobias was attempting to do and

Tobias admitted that he wanted to make

cocaine. The agent pretended to empa-

thize with Tabias and stated that he also

found cocaine extremely difficult and

expensive to manufacture. Tobias re-

26a

sponded that he was not necessarily

interested in manufacturing cocaine, but

that he just wanted to make some money.

The agent then suggested to Tobias that

he make Phencyclidene (PCP) which is as

easy as "baking a cake." The agent

offered to send Tobias everything he

needed, stating that he, the agent, might

have a market for PCP in Mobile, and

Tobias agreed.

Tobias subsequently called the

supply company thirteen times to discuss

problems in the manufacturing process and

to obtain advice regarding the manufac-

ture of the PCP. Tobias was convicted of

conspiring to manufacture and possess PCP

with intent to distribute and of manufac-

turing and possessing PCP with intent to

distribute.

27a

In rejecting Tobias’ claim that

government involvement in the offenses

for which he was convicted was so outra-

geous as to bar his convictions based

upon due process, the Eleventh Circuit

noted that although the DEA provided the

formula and some of the chemicals for the

manufacture of PCP, the relevant chemi-

cals were not difficult to obtain and

could have been obtained from other

supply houses. The court also pointed

out that the DEA provided no financial

aid for Tobias’s operation. Moreover,

the DEA did not initiate contact with

Tobias, and although the DEA provided

crucial eten-hy-sten advice as to how to

manufacture the PCP, Tobias or his wife

initiated contact with the DEA to obtain

this advice. The court found it impor-

tant that Tobias was not a "predisposed

28a

inactive participant," but instead was

a "predisposed active participant" moti-

vated solely by a desire to make money.

It did not matter to Tobias whether he

manufactured cocaine or PCP or any other

illegal drug. Impliedly, the court found

that he would have sought help to manu-

facture and v ld have manufactured any

illegal drug which would have netted him

a profit, viz., he would have manufac-

tured a controlled substance for sale

even without the help of the DEA.

The Eleventh Circuit made a distinc-

tion between the Tobias case and United

States v. Twigg, 588 F.2d 373 (3d Cir.

1978), wherein the Third Circuit found

the government’s conduct so outrageous as

to violate due process because a govern-

ment agent in that case "suggested the

establishment of a drug laboratory,

29a

provided the place, equipment, supplies

and know-how, and then ran the entire

operation with only meager assistance

from the defendants. Id. at 386. The

Eleventh Circuit recognized that facts

similar to the Twiggs case would indeed

present the Court with government miscon-

duct which violates fundamental fairness

and sufficiently shocks the conscience in

violation of the mandate of the due

process clause of the Fifth Amendment.

This court must determine whether

the facts of thi: case resemble more the

facts in Twiggs or the facts in Tobias.

The court must also be mindful of the

totality of the circumstances looking to

the concrete facts of the case with no

single factor controlling.

30a

I. EDENFIELD CASES

The political and personal consider-

ations surrounding the investigation and

arrest of the Edenfields cannot be ig-

nored by this court. The court believes

that in light of the political background

and the personal animosities involved in

this case, law enforcement conduct must

be carefully perused. While law enforce-

ment should be given great flexibility in

investigating crime, tw maintain justice,

fairness, and decency in the criminal

justice process, law enforcement offi-

cials cannot be allowed to improperly

employ their significant power and re-

sources to settle personal scores.

A. Informant Contingent Fee Agreement

In. United States v. Shearer, 794

F.2d 1545 (llth Cir. 1986), the Eleventh

Circuit recognized the dangers inherent

3la

in the government entering into a contin-

gent fee agreement with a confidential

informant when the government preselects

the individual who is to be the target of

the informant’s investigation. The

record of this matter reveals that John

and Jim Edenfield were prese: ected tar-

gets of Sheriff Greathouse’s investiga-

tion and that Watson was contingently

paid to gather a specific type of evi-

dence to support an arrest.

Although Watson, the informant, came

to law enforcement authorities offering

to work undercover in an investigation of

certain black crack dealers in Upson

County as well aie the Edenfields, it soon

became apparent that the Edenfields were

the focus of the investigaticn by the

Upson County Sheriff’s department and the

GBI. Not only were the Edenfields prese-

32a

lected targets, but the crime for which

they would be arrested was preselected.

The evidence shows that Watson was

to be paid for his undercover work based

upon the information he received about

the Edenfields. Moreover, the evidence

shows that this goal was to get one of

the Edenfields alone in possession of

over an ounce of cocaine, although it was

common knowledge that not only did the

Edenfields use drugs solely on a recre-

ational basis and sold to friends at cost

not for profit, but also that the Eden-

ficids purchased cocaine in relatively

small amounts. Prior to the investiga-

tion Watson had never procured as much as

an ounce in cocaine for the Edenfields.

In addition, Sheriff Greathouse and the

GBI had at least four separate opportuni-

ties to arrest an Edenfield with posses-

33a

sion of cocaine; however, no arrest was

undertaken until they could be assured

that an Edenfield possessed over an ounce

of cocaine.

In addition, although the Magistrate

did not resolve the issue of whether law

enforcement authorities entered into a

contingent fee arrangement with Watson,

the court finds that there is sufficient

evidence in the record to show that they

did.

First, Watson himself believed that

he had an agreement with Sheriff Great-

house which provided that he would be

paid $10,000 to get an Edenfield in

possession of over an ounce of cocaine.

Second, the record reflects irregulari-

ties in the incomplete Upson County

Confidential Informant payment ledger,

and affirmative testimony in the record

34a

reveals that the Upson County Confiden-

tial Informant Receipt book was destroyed

under mysterious circumstances. This

discovery followed upon the heels of

Sheriff Great:house’s suicide. Third,

Sheriff Greathouse took out a loan from

the West Central Georgia Bank, paying

Watson out of these personal funds, in

order to get evidence on the Edenfields,

which loan was not formally noted in the

appropriate Upson County records. This

loan was taken out by the Sheriff al-

though he could have obtained informant

funds from the county commissioners of

Upson County without explanation. The

only logical explanation for the personal

loan transaction is that Sheriff Great-

house wished to avoid leaving a paper

trail evidencing the improper payments to

Watson. When considered together, the

35a

court concludes that Watson was a contin-

gently motivated informant investigating

preselected targets.

B. Government Overinvolvement

While it is unclear whether a con-

tingent fee agreement to produce evidence

against particular named defendants as to

crimes not committed is alone sufficient

to support a finding of egregious law

enforcement misconduct violative of the

due process clause, the court finds that

this contingent fee arrangement in con-

junction with government overinvolvement

in the planning and execution of the

crime committed in this matter is viola-

tive of the due process clause’s prohibi-

tions against deprivation of liberty

without due process of law.

The court in Tobias indicated that

in defining the acceptable parameters of

36a

government involvement in a crime, those

acts done by law enforcement in investi-

gating and intercepting criminal activity

which serve a legitimate investigatory

purpose will not be sanctioned. See 662

F.2d at 387, n.3. Moreover, those acts

which merely provide a defendant with a

pre-exiting interest in committing a

particular crime an opportunity to do so

is not prohibited.

In this case, the record shows that

the government’s informant not only

arranged the drug buy, but also purchased

half of the cocaine with government

money. Moreover, he had complete discre-

tion as to how much cocaine would be

purchased at that buy and how much would

be placed in Edenfield’s possession. The

information was in complete control of

the drug deal.

37a

The esgential link in the chain

which completed the crime charged, was

the mixing together of the drugs to

constitute an amount over one ounce in

weight. Watson mixed these drugs for one

purpose only, and that was to trick the

defendant Edenfield into possessing an

ounce or more of cocaine -- an ounce

which he did not want, did not pay for,

did not consider his, and which he had

never during two months of investigation

shown an inclination to wish to purchase,

possess, or distribute. The mixing of

the drugs by an agent of the government

which made possible Edenfield’s arrest

for trafficking served no legitimate

investigatory purpose. His act was not

necessary to protect his cover. More-

over, all parties involved in this inves-

tigation knew that the Edenfields were

38a

not drug dealers for profit. The inform-

ant’s acts in setting up and completing

the drug deal were not necessary to

determine if John Edenfield was an orga-

nized crime figure, a purchaser for

organized crime, or a small time drug

pusher. Everyone was well aware that the

Edenfields sold only to their friends at

cost or gave drugs to them for free.

The court understands law enforce-

ment’s need to use informants, to work

undercover, to protect an agent’s under-

cover status by allowing him to partici-

pate minimally in drug transactions;

however, it is offensive to principles of

fundamental fairness for law enforcement

agents to commit almost all the acts

constituting a crime and then to charge

an individual with that crime. If one

views the crime charged in this matter as

39a

a chain of events resulting in the pos-

session of an ounce of cocaine, the

defendant was undeniably a "meager assis-

tant" to the informant. The court con-

cludes that the facts of this case are

more like those in Twigg than those in

Tobias.

In this matter law enforcement

agents did not merely provide an Eden-

field with an opportunity to commit the

crime charged. While Jim Edenfield was

predisposed to buy a half ounce of co-

caine for sale to his friends and for his

own recreational use, he never showed any

inclination to traffick in cocaine for

profit. He would not have bought an

ounce of cocaine without the government’s

participation in instigating and funding

the particular crime, creating the rele-

vant amount, and devising a ruse, which

40a

depended upon Edenfield’s trust in and

friendship with the informant, to induce

him to take into his possession over an

ounce of cocaine.

While no one factor is controlling

in this matter, the court finds that

given the political and personal interest

of law enforcement officials involved in

this case, the preselection of the inves-

tigatory target, the government’s enter-

ing into a contingent fee agreement with

an informant to get an Edenfield, and the

overinvolvement of the informant as an

agent of the government in the planning

and execution of the crime charged, a law

enforcement conduct in this case is so

egregious as to offend principles of due

process. The government, whether state

or federal, is supposed to be in the

business of investigating and intercept-

4la

ing crime in order to punish and deter

wrongdoers. The government may not

initiate crimes. A sense of ordered

justice does not allow for law enforce-

ment activity which results in the pre-

selection of a particular individual for

investigation and which results in law

enforcement agents acting to ensure that

a more serious crime is committed by that

targeted individual as a result of the

investigation than would have been com-

mitted without the acts of the govern-

ment.

The court concludes that the case

against John and James Edenfield should

be dismissed.

II. FRADY CASE

As for defendant Steven Frady, the

court finds that pursuant to their inves-

tigation of the Edenfields, law enforce-

42a

ment authorities merely provided Mr.

Frady with the opportunity to commit a

crime. Mr. Frady was not a preselected

target of the investigation pursued by

informant Watson. In fact, it is clear

from the record that law enforcement

authorities had little interest in inves-

tigating or arresting Mr. Frady for

cocaine distribution. It was not until

the federal authorities became interested

in this case that Mr. Frady was arrested

and charged.

Moreover, the government was not

overinvolved in the crime committed by

Mr. Frady. While an agent of the govern-

ment (informant Watson) deiesaved contact

with Mr. Frady in order to procure co-

caine, Mr. Frady was already involved in

selling drugs and was known to sell drugs

for profit. He himself understood all

43a

the acts necessary to obtain and then

sell over an ounce of cocaine to Watson

and the Edenfields. This is not a situa-

tion where Mr. Frady would not have sold

drug without the participation of law

enforcement authorities. Therefore, the

court finds that defendant Frady’s right

to due process has not been violated by

the conduct of law enforcement authori-

ties in this case.

The court also adopts the findings

of fact and conclusions of law found in

the Magistrate’s Report and Recommenda-

tion regarding defendant Frady’s motion

to suppress.

Based on’ the foregoing, the court

adopts the findings of fact, with addi-

tions, and rejects the relevant conclu-

sions of law of the Magistrate’s Report

and Recommendation with respect to John

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and James Edenfield; the court adopts the

findings of fact, with additions, and the

conclusions of law of the Magistrate’s

Report and Recommendation with respect to

Steven Frady. Therefore, James and John

Edenfield’s motion to dismiss is GRANTED

rendering moot their motions to suppress,

and Steven Frady’s motion to dismiss and

motions to suppress are DENIED.

SO ORDERED this 22nd day of May,

1992.

: /s/ Robert L. Vining, Jr.

; ROBERT L. VINING, JR.

United States District Judge

45a

|

UNITED STATES of America,

Plaintiff-Appellant,

Vv.

John M. EDENFIELD, James

C. Edenfield, Defendant-

Appellees

No. 92-8877.

United States Court of Appeals

Eleventh Circuit

July 14, 1993.

Defendants were charged with cocaine

distribution offenses. The United States

District Court for the Northern District

of Georgia, No. 1:90-CR-415, Robert L.

Vining, Jr., J., dismissed indictment,

and government appealed. The Court of

Appeals, Edmondson, Circuit Judge, held

that quvemaanetn acts in investigating

defendants were not outrageous misconduct

in violation of due process clause.

Vacated and remanded.

46a

‘

]

1. Criminal Law i139

Whether facts show government mis-

conduct so outrageous that it bars prose-

cution is question of law which Court of

Appeals reviews de novo, looking at

totality of circumstances.

2. Constitutional Law 257.5

Criminal Law 36.6

Under totality of circumstances,

government acts of entering into contin-

gent fee arrangement with confidential

informant, selection of targets of inves-

tigation, and involvement of informant as

agent of government in planning and

execution of drug crimes with which

defendants were charged were not s0

outrageous as to violate defendants’ due

process rights; defendants used and

distributed cocaine before investigation,

and defendants started each of drug

47a

transactions for which they were indicted

equipped with their own, independently

acquired knowledge, personal contacts,

and hardware. U.S.C.A. Const.Amend.5.

3. Constitutional Law 257

Criminal law 36.6

Government’s refusal to pay confi-

dential informant part of his fee until

he produced useful evidence was not

outrageous conduct which violated defen-

dants’ due process rights; no fee was

contingent upon obtaining conviction.

U.S.C.A. Const.Amend. 5.

4. Criminal law 36.6

Government conduct in selecting

defendants as caxgete of drug investiga-

tion was not impermissible preselection

ef investigatory targets; investigation

began only after defendants’ friend

approach government offering to act as

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informant against persons, including

defendants, whom he knew to be involved

in drugs.

5. Constitutional Law 257.5

Criminal Law 36.6, 37.1

It was irrelevant, for due process

purposes, that there was political enmity

between defendants’ family and sheriff

involved in initiating and pursuing

investigation of defendants ma that

family was prominent in community; for

law enforcement officers to choose to

investigate prominent offenders was not

unusual or evil, and it is outrageous

misconduct, not law enforcement officer’s

possible motives, that bars prosecution

under due process clause. U.S.C.A.

Const.Amend. 5.

49a

6. Constitutional law 257.5

It is showing outrageous misconduct,

not evidence about officer’s possible

motives, that bars prosecution under due

process clause. U.S.C.A. Const.Amend. 5

7. Constitutional law 257.5

Criminal Law 36.6

Informant’s role in planning and

executing drug crimes for which defen-

dants were charged was not outrageous

misconduct in violation of due process

clause, even though informant’s cocaine

purchases in one transaction were de-

signed to support mandatory minimum

trafficking sentence under Georgia law by

ensuring that more than one ounce of

cocaine was involved; theory of "sentence

entrapment" has been rejected, defendants

were long-time users and admitted dis-

tributors, and no minimum quantity of

50a

drugs was element of federal offense of

possessing with intent to distribute with

which defendants were charge. U.S.C.A.

Const.Amend. 5.

Mary Jane Stewart, Asst. U.S. Atty.,

Atlanta, GA, for plaintiff-Appellant.

John R. Martin, Martin Brothers,

Atlanta, GA, for John M. Edenfield and

James C. Edenfield.

Appeal from the United States Dis-

trict Court for the Northern District of

Georgia.

Before EDMONDSON and BLACK, Circuit

Judges, and MELTON’, Senior District

Judge.

EDMONDSON, Circuit Judge:

In this drug distribution case, the

district court dismissed the federal

indictment for "outrageous misconduct" by

“Honorable Howell W. Melton, Senior

U.S. District Judge for the Middle Dis-

trict of Florida, sitting by designation.

5la

state officers who investigated the

charged offenses. We reverse.

I. Background

The important facts are undisputed.

John and James Edenfield ("defendants")

admit that they used cocaine, shared

cocaine with friends, and sold cocaine to

friends at cost.’

The evidence showed that John Eden-

field, Sr., defendants’ father, was a

prominent Thomaston, Georgia businessman.

Defendants’ father was on bad terms with

the Upson County Sheriff, Merrill Great-

house. The elder Edenfield had exchanged

hard words with the Sheriff over Sheriff

Greathouse’ s investigation of an Eden-

field employee and had actively supported

‘Br. of Appellees at 3.

52a

the Sheriff’s opponent in local elec-

tions.

Tony Watson was a friend of the

defendants. Watson’s car business was

failing and he needed money. In 1989,

Watson initiated a meeting with Sheriff

Greathouse and a Georgia Bureau of Inves-

tigation (GBI) agent, Charles McMichen.

Watson proposed that, in exchanged for

$10,000, he would act as a confidential

informant against the Edenfields. Sher-

iff Greathouse and Agent McMichen agreed

to pay Watson an informant fee, but only

for "results" or "COD."

In September and October 1989, state

officers supervised four separate con-

trolled buys of one-eighth ounce amounts

of cocaine by Watson from defendants.

The police obtained physical evidence,

photographs, and tape recordings of those

53a

transactions but made no arrest. The

police paid Watson about $3600 for those

four transactions.

Sheriff Greathouse met with Watson

in late October, 1989. The Sheriff told

Watson that the officers’ goal was for an

Edenfield "to be busted with over an

ounce."? The Sheriff offered that, if

Watson could get one of the Edenfield

boys in a car with more than an ounce of

cocaine, the Sheriff and the GBI would

pay Watson $10,000-$4,000 in advance and

$6,000 afterward. Watson agreed; and the

sheriff paid him the $4,000 advance, part

cf which the sheriff had apparently

personally borrowed from a bank.

"Under Georgia law, a conviction for

distributing more than one ounce of

cocaine mandates a minimum ten-year term

of imprisonment and a $100,000 fine with

no possibility of probation. See 0.C.G.A.

§ 16-13-3l(a).

54a

Oe Eee ee EET T

:

:

t

:

E

£

‘

On November 10, 1989, James Eden-

field called Watson asking for Watson to

arrange for them to buy "14" from an

Atlanta dealer, Frady. Watson thought

Edenfield meant $1,400 worth, or about an

ounce of cocaine. Watson reported this

information to Sheriff Greathouse and

then ordered the ounce from Frady. Later

conversation made clear that Edenfield

had meant 14 grams (about a half-ounce),

and Watson called Greathouse with that

new information. Watson, Sheriff Great-

house, and Special Agent McMichen met to

discuss the transaction. Sheriff Great-

house gave Watson $800 to buy an addi-

tional half-ounce, ostensibly for Watson;

and the GBI agent gave him $500 to buy an

additional one-eighth of an ounce. The

GBI agent testified that the plan was

that the total purchase (Edenfield’s

55a

half-ounce, plus Watson’s half- and

eighth-ounce purchases) would be more

than one ounce, enough fora "trafficking

case."

Watson and James Edenfield went to

Atlanta to meet Frady at a drive-in

restaurant. En route, Watson told Eden-

field twice that Watson intended to buy

a second half-ounce for himself and

showed defendant his money. Watson met

with Frady and bought parcels of cocaine

totalling one and one-eighth ounces,

which Watson put together in one bag and

gave to Edenfield in the car. As

planned, Watson asked Edenfield to drop

Watson off on the way home to pick up a

car. Edenfield dropped Watson off in

Griffin, Georgia. Shortly afterward,

James Edenfield was arrested enroute from

56a

Griffin to Thomaston and later charged

with trafficking cocaine under state law.

Later, a federal grand jury indicted

the Edenfields for four federal drug

offenses. Count one of the indictment

charged that defendants had conspired to

possess with intent to distribute cocaine

in violation of 21 U.S.C. § 846. Three

other counts charged that defendants had

possessed cocaine with intent to distrib-

ute in violation of 21 U.S.C. § 841 and

18 U.S.C. § 2 on three occasions, includ-

ing the November 10 transaction.

Defendants moved the district court

to dismiss the federal indictment, clain-

ing their due process rights were violat-

ed by outrageous government misconduct.

After an evidentiary hearing about the

investigation of the defendants, the

57a

district court granted the motion,

ing:

The government brought this appeal.

While no one factor is con-

trolling in this matter, the

court finds that given the

political and personal inter-

est of law enforcement offi-

cials involved in this case,

the preselection of the inves-

tigatory target, the govern-

ment’s entering into a contin-

gent fee agreement with an

informant to get an Edenfield,

and the overinvolvement of the

informant as an agent of the

government in the planning and

execution of the crime

charged, law enforcement con-

duct in this case is so egre-

gious as to offend principles

of due process.’

II. Discussion

[1] Our cases have recognized

say-

that

"in the rarest and most outrageous cir-

cumstances" government conduct might

violate "‘that fundamental fairness,

37R. Vo. 1-62 at 20.

58a

shocking to the universal sense of jus-

tice mandated by the due process clause

of the Fifth Amendment.’" United States

v. Tobias, 662 F.2d 381, 386-87 (5th Cir.

Unit B. 1981), quoting United States v.

Russell, 411 U.S. 423, 432, 93 S.Ct.

1637, 1643, 36 L.Ed.2d 366 (1973).

Whether facts show misconduct so outra-

geous that it bars prosecution is a

question of law which we review de novo,

looking at the "totality of the circunm-

stances." Tobias, 662 F.2d at 387.

[2] We think no government acts

violated the Edenfields’ due process

rights. The evidence showed that for the

offenses charged the dstibinitaians were

"predisposed active participants." See

id. The evidence shows defendants used

and distributed cocaine before the inves-

tigation in this case. Equipped with

59a

their own, independently acquired knowl-

edge, personal contacts, and hardware,

defendant started each of the drug trans-

actions mentioned in the federal indict-

ment. The government did not instigate

the criminal activity, provide the place,

equipment, supplies, and know-how, and

run the entire operation with only meager

assistance from the defendants." Cf. id.

at 386, citing United States v. Twigg,

588 F.2d 373 (3rd Cir. 1978).

[3] For the district court to view

the government’s fee agreement with

Watson as part of a due process violation

was wrong. Although "in rare cases, use

of a contingently motivated informer

might, conceivably, be so outrageous as

to violate due process," we have rejected

the idea "that absent justification or

explanation, payment of an informer

60a

contingent upon obtaining the conviction

of a specific person in itself violates

due process." United States v. Rey, 811

F.2d 1453, 1456 (llth Cir. 1987). We see

nothing outrageous about the government’ s

refusal to pay Watson part of his fee

until he produced useful evidence. Cf.

United States v.Shearer, 794 F.2d 1545,

1549 (llth Cir. 1986) (fee paid to inform-

er before defendant’s trial was not

contingent on conviction and so violated

no due process rights). No fee was con-

tingent upon obtaining a conviction.

[4] In a similar way, it was error

for the district court to factor "pre-

selection of the investigatory target”

into its ultimate conclusion. This case

is no preselection case: the investiga-

tion began only after Watson approached

the government offering to act as an

6la

informant against persons, including

Edenfields, whom Watson knew to be in-

volved with drugs. Where a potential

informer approaches the government with

names and the government merely

"select[s] who the informer would concen-

trate upon before making the financial

arrangements ... the agents’ decision is

better described as an approval than as

a selection." United States v. Richard-

son, 764 F.2d 1514, 1520 (l1ith Cir.

1985).

{5,6] And it is irrelevant, for due

process purposes, that there was politi-

cal enmity between the Edenfields and

Sheriff Greathouse or that the Edenfields

were prominent in their community. For

law enforcement officers to choose to

investigate prominent offenders is noth-

ing unusual or evil. It is a showing of

62a

outrageous misconduct, not evidence about

an officer’s possible motives, that bars

prosecution under the due process clause.

[7] We also see no outrageous mis-

conduct in Watson’s role in planning and

executing the crimes charged. Although

the evidence showed that Watson’s pur-

chases in the November 10 transaction

were designed to support a mandatory

minimum trafficking sentence under Geor-

gia law, we have expressly rejected the

theory of "sentence entrapment." See,

e.g., United States v. Williams, 954 F.2d

668, 672-73 (llth Cir. 1992) (no defense

that "government manipulated the transac-

tion in order to get the mandatory mini-

mum sentence"). This case is not one

where the government instigated commis-

sion of a distribution offense by mere

users; these defendants were long-time

63a

and admitted distributors. And we point

out that no minimum quantity of drugs is

an element of the charged federal offense

of possessing with intent to distribute

cocaine. Therefore, the presence of an

ounce or more of cocaine in Edenfield’s

automobile is not a critical matter.

Simply put, nothing about the

government’s conduct in this case is

shocking to the “universal sense of

justice" of the due process clause.

Russell, 411 U.S. at 432, 93 S.Ct. at

1643 (emphasis added).

Considering the "totality of the

circumstances" as well as the "parts that

make up the whole," Tobias, 662 F.2d at

387, we conclude that the government’s

conduct in investigating the charged

offenses violates no due process rights

64a

of the appellees. It was error to dismiss

the indictment.‘

III. Conclusion

The order dismissing the indictment

is VACATED and the case is REMANDED for

further proceedings consistent with this

opinion.

‘The misconduct in this case was

conduct of state officers acting apart

from the federal government. Yet it is a

federal prosecution for the violation of

federal law that would be barred. We rely

in no way on the idea of two separate

sovereigns-(1) the State of Georgia and

(2) the United States of America-to allow

this prosecution to proceed. But we do

note that some question exists about when

state officer misconduct would, as a

matter of law, completely bar a federal

prosecution.

65a

IN THE UNITED STATES

COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 92-8877

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Versus

JOHN M. EDENFIELD

JAMES C. EDENFIELD,

Defendant-Appellees.

On Appeal from the United States

District Court for the

Northern District of Georgia

ON PETITI FOR R

SUGGESTION (S): OF I Cc

Before: EDMONDSON and BLACK, Circuit

Judges, and MELTON*, Senior District

Judge.

PER CURIAM:

66a

( ) The Petition(s) for Rehearing are

DENIED and no member of this panel nor

other Judge in regular active service on

the Court having requested that the Court

be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Sugges-

tion(s) of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ 3.L. EDMONDSON

UNITED STATES CIRCUIT JUDGE

*Honorable Howell W. Milton, Senior U.S.

District Judge for the Middle District of

Florida, sitting by designation.

67a