# Appendix — Edenfield v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1687%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 513 U.S. 818 ## Text 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 44a 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 48a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1687%3A2. Public record. Not legal advice.