Appendix — Pardue v. United States

No.

In The

Supreme Court of the United States

October Term, 1992

JACK PARDUE,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

VOLUME 2-—-APPENDIX

JOHN WESLEY HALL, JR.

523 West Third Street

Little Rock, AR 72201

(501) 371-9131

May 17, 1993 Attorney for Petitioner

INDEX TO APPENDIX

United States v. Pardue, 983 F.2d 843

SE SE Es Oo ae er Be A-3

United States v. Pardue, orders denying

rehearing and suggestion for rehearing

en banc (8th Cir., Feb. 16, 1993) ........ A-16

United States v. Pardue, 983 F.2d 835

SO Sie ae ety ek ae A-17

United States v. Pardue, 765 F.Supp. 513

PUN UME OPED 5k ae eae a kk we as A-34

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

UNITED STATES of America, ”

Appellant,

V. . No. 91-2307

JACK PARDUE and .

MICHEL PARDUE, <

Appellees. .

Submitted Dec. 11, 1991.

Decided Jan. 4, 1993.

Rehearing and Rehearing En Banc

Denied Feb. 16, 1993.

[983 F.2d 843]

Before LAY, Chief Judge, WOLLMAN and HANSEN,

Circuit Judges.

PER CURIAM.

Jack Pardue made three motions for judgment of

acquittal pursuant to Federal Rule of Criminal Procedure

29 alleging entrapment as a matter of law and outrageous

government conduct. The trial court denied the first two

motions, made first at the close of the government’s case

in chief and then at the close of all the evidence, but grant-

ed Pardue’s renewed third motion after the jury had found

defendant Jack Pardue guilty of two felonies in a murder-

* The Honorable Donald P. Lay was Chief Judge of the

United States Court of Appeals for the Eighth Circuit at the time

this case was submitted and took senior status on January 7,

1992, before the opinion was filed.

A-3

for-hire scheme. See Fed.R.Crim.P. 29(c). The trial

court, in its third look at the motions, found both entrap-

ment as a matter of law and outrageous government con-

duct, 765 F.Supp. 513. The government appealed the

judgments of acquittal. We reverse and order the verdicts

reinstated and remand the case for entry of judgments of

conviction against Jack Pardue.

[*845] In order for entrapment as a matter of law to

be present, it must clearly appear that it was the govern-

ment agent who originated the criminal design, that the

agent implanted in the mind of an innocent person the

disposition to commit the offense, and that the innocent

person then committed the crime at the government agent’s

urging. United States v. King, 803 F.2d 387, 389-90 (8th

Cir.1986) (per curiam) (citing United States v. Randolph,

738 F.2d 244, 245 (8th Cir.1984) (per curiam)). In re-

viewing the trial court’s ruling on the motion for acquittal,

this court must view the evidence in the light most favor-

able to the government. United States v. Resnick, 745

F.2d 1179, 1186 (8th Cir. 1984).

Based upon a thorough review of the record, we find

there was sufficient evidence for a reasonable jury to

determine that Jack Pardue was not entrapped and that he

was guilty of conspiracy to use interstate commerce facili-

ties in connection with a murder for hire, and erigaging in

or aiding and abetting interstate travel in connection with

murder for hire as charged in Counts | and 3 of the Indict-

ment. Some of that evidence is recited in the companion

case opinion. The evidence concerning Jack Pardue’s

intent and the extent of his involvement in the charged

offenses was without doubt conflicting, and the witnesses

for both the prosecution and the defense were subject to

attacks upon their credibility of some intensity. However,

it was the jury’s function to assess the credibility of each

A-4

ee

of the witnesses, including the defendants (each of whom

testified in his own defense), and to sort out and weigh the

evidence against the court’s instructions.

Contrary to the views expressed in the dissent, we do

not find it so clear that the murder-for-hire scheme termi-

nated when David Pardue pleaded guilty to perjury on July

9. The testimony concerning this matter was in conflict.

There was testimony from Gary Garrett that when

David returned to the prison in mid-July from his state

court perjury guilty plea proceeding in Benton County,

David still was of the mind to have the Harringtons killed.

(JA 142). David testified that he was not so inclined, but

his letter to "Chuck" of August 6 (GX 27) clearly shows

such an intent. ("No more money will be payed [sic] until

the job is done, the money will be payed [sic] to you ...")

Nor are we convinced that it was the government who

"completely resurrected" the conspiracy when it staged the

murders in September. Agent Danzer’s continued involve-

ment was clearly solicited by David’s letter. In addition

there was ample time between "Chuck’s" phone call of

September 16 informing Michel that the murders were

going to occur on the night of September 18/19 for Michel

and/or Jack to call it off, go to the authorities, or warn the

intended victims. Their stated reason for not doing any of

the three was fear for their own lives. The jury was in-

structed on such a coercion defense by the trial court and

rejected it.

The evidence, when viewed in the light most favorable

to the verdict, from which a reasonable jury could convict

the defendant Jack Pardue included the following. Michel

told "Chuck" in the prison parking lot on July 1 that the

remaining $4,500 would come from money his grandfather

had. (JA 186). Michel, having paid "Chuck" $250 on July

1 to murder the Harringtons, told his grandfather Jack

A-5

ew

early on the morning of July 2 of the happenings at the

prison and of Michel’s intention to meet "Chuck" at Gen-

try later that day to give him the second $250. (JA 490).

During that early morning conversation with Michel, Jack

told Michel that there might be a young child in the Har-

rington home. (GX 15). The second $250 came out of

David’s safe located in Jack’s home and Jack knew that

Michel had taken it and for what purpose. (JA 522). After

Michel returned from Gentry on July 2 where he gave

"Chuck" the second $250 and the better photographs of the

Harringtons, and pointed out their residence, Jack and

Michel were talking on the telephone at about 6 p.m. when

"Chuck" called. Jack waited for two or three minutes on

"call waiting" while Michel talked to "Chuck" and then

Jack hung up. (JA 492). Jack called back while "Chuck"

and Michel were still talking about the murder plan, and

Michel put [*846] "Chuck" on hold to talk to Jack. When

Michel came back on the line with "Chuck," he revealed

that he and his grandfather had been again talking that

evening about the presence or absence of a small child in

the Harrington home, certainly a complicating factor in the

murder scheme. Michel further stated that Jack had said

"it’s happening too fast for him" and Michel said it was "a

little too fast for me too." (GX 22). When "Chuck"

expressed a need to see the rest of the cash before the

killings occurred, Michel responded, "We are on the same

ground you are. We didn’t want to send you five and just

be left out in the dark." Michel also informed "Chuck"

that Jack had been subpoenaed for David’s anticipated

perjury trial and that his grandfather was also "going to

have to have an alibi." At "Chuck’s" suggestion that they

meet at Shoney’s at 9 p.m. that night so he could see the

money, Michel said, "Let me call my grandpa" and "I'll

call you back." When Michel called back, he said that his

A-6

:

é

;

4

grandfather was willing to meet with "Chuck" at Shoney’s.

Jack drove to Shoney’s with his wife in a vehicle

separate from Michel’s. While Michel was conversing with

"Chuck," Jack entered the restaurant, surveyed the scene,

and left. (Tr. 349, 356). When "Chuck" and Michel left

Shoney's, Michel went to talk to Jack in Jack’s pickup

truck while "Chuck" waited. When Michel returned, he

told "Chuck," "My grandpa says he don’t want to talk to

you, Chuck, you know, he’s funny about that stuff."

When Chuck responded that it sounded to him like grandpa

was the one calling the shots and that Michel was "kinda

like in the middle," Michel responded "Yeah, between him

and my Dad, and he’s worried that he thinks he should be

out of town." (Ex. 23). When "Chuck" then expressed

some concern about any delay, Michel responded that,

"We don’t mean to put you out, Chuck."

After "Chuck’s" phone call on September 16, Michel

told his grandfather that the "deal’s still on" and that it

was going to happen "in a couple of days or something,

18th or 20th or something like that." (JA 506, JA 508).

When Michel told Jack that the killings had occurred and

that "Chuck" would have photographic proof to show him

at Shoney’s, Jack went with Michel to Shoney’s. This

time, however, Jack did not go inside the restaurant.

On September 23, Jack and Michel met with David at

the penitentiary, described to David how the Harringtons

had been killed, and decided to pay the $4,500 by mailing

it to the Oklahoma post office address. The next day, Jack

drove into Oklahoma and mailed the $4,500 in cash pack-

aged in a pocket New Testament to "Chuck" at the Okla-

homa address he had provided. When Jack was arrested,

a slip of paper with the Harringtons’ address on it (which

bore Michel’s fingerprint) was found in Jack’s wallet.

Surely Jack’s actions in driving across the Arkansas/

A-7

Oklahoma state line and in using the United States mail to

convey the payoff portion of the contract killer’s price

(conduct Jack readily admitted during his own testimony

(JA 518)) met all the factual elements of Count 3 of the

Indictment. The disputed issues in this case were raised by

the defenses of entrapment and coercion, on which the jury

was fully and adequately instructed and which the jury

decided adversely to the defendants. With respect to the

conspiracy count (Count 1), we have already found suffi-

cient evidence exists to support the jury’s finding that the

charged conspiracy existed between David and Michel.

United States v. Jack Pardue and Michel Pardue, 983 F.2d

835, 840 (8th Cir.1993.) Our cases hold that "once the

government has proved the existence of the conspiracy,

however, only slight evidence is needed to connect a par-

ticular defendant to the scheme." United States v. Turner,

975 F.2d 490, 494 (8th Cir.1992) (citing United States v.

Lee, 743 &.2d 1240, 1250 (8th Cir.1984)). See also Unit-

ed States v. Askew, 958 F.2d-806, 810 (8th Cir.1992). As

recited above, more than slight evidence exists in this case

that the jury could reasonably use to conrect Jack to the

conspiracy charged in Count 1. It was for the jury to

decide from the evidence, both direct and circumstantial,

whether Jack’s involvement was criminai in [*847] nature,

or whether he was merely acting as a protective grandfa-

ther.

The tendered defenses of entrapment and coercion

were likewise factual issues for the jury to resolve. Be-

cause the evidence was in conflict, it was for the jury to

decide if Jack did what he did because he was predisposed

to and willingly did so, or whether he did so because he

was entrapped or out of fear for his and his family’s lives.

Where the facts as to entrapment are disputed, the issue

must ordinarily be submitted to the jury. Sorrells v. United

A-8

States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932);

Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct.

883, 886, 99 L.Ed.2d 54 (1988); United States v. Crump,

934 F.2d 947, 956 (8th Cir.1991); United States v. Pfef-

fer, 901 F.2d 654, 656 (8th Cir.1990); United States v.

Leroux, 738 F.2d 943 (8th Cir.1984). Because the evi-

dence in this case pointed to more than one reasonable

conclusion, the district court was in error when it deter-

mined that Jack had been entrapped as a matter of law by

the undercover agent. Having so determined, we need not

address the difficult issue of private citizen middle-man

derivative entrapment raised in this case. See, e.g., Unit-

ed States v. Hodges, 936 F.2d 371 (8th Cir.1991). Here

the jury could have reasonably determined that Jack Par-

due was not entrapped. There was substantial evidence

which showed that the idea to kill the Harringtons and to

use a hired killer to do it originated not with any govern-

ment agent but with Jack Pardue’s son David who was

confined in an Arkansas prison. It was David who enlisted

Michel’s aid in the scheme, and there was sufficient evi-

dence for a jury to conclude that it was Michel and David

(and not Agent Danzer posing as the hitman) who involved

Jack in the plan. The scheme to pay the money by mailing

it to a post office box of "Chuck’s" own choosing was laid

out in David’s August 6 letter to "Chuck." Jack did so

only after a joint’ meeting with Michel and David at the

prison on September 23 when the decision to pay was

taken.

The correct test to apply in the determination of a

motion for judgment of acquittal is: "A motion for judg-

ment of acquittal should only be granted where the evi-

dence, viewed in the light most favorable to the govern-

ment, is such that a reasonably minded jury must have a

reasonable doubt as to the existence of any essential ele-

A-9

ments of the crime charged." United States v. Mundt, 846

F.2d 1157, 1158 (8th Cir. 1988) (citation omitted) (empha-

sis added). In other words, the test is whether "a reason-

able fact finder could have found guilt beyond a reasonable

doubt." United States v. Garrett, 948 F.2d 474, 476 (8th

Cir.1991) (citation omitted). Under this standard, the

district court has "very limited latitude." United States v.

Jewell, 893 F.2d 193, 194 (8th Cir. 1990). In deciding a

motion for judgment of acquittal, the court can neither

weigh the evidence nor assess the credibility of the wit-

nesses. Burks v. United States, 437 U.S. 1, 16, 98 S.Ct.

2141, 2150, 57 L.Ed.2d 1 (1978). The test is the same in

this court as it is in the trial court. Applying that test to

the evidence in this case, we conclude that a reasonable

fact finder could have found Jack Pardue guilty beyond a

reasonable doubt.

We also hold that the district court was in error with

respect to its alternative ground for acquittal, i.e., that the

government had engaged in such outrageous conduct that

under principles of due process it was obligated to acquit

the defendant Jack Pardue. The level of outrageousness

needed to prove a due process violation is "quite high,"

and the government’s conduct must "shock the conscience

of the court." United States v. Jacobson, 916 F.2d 467,

469 (8th Cir.1990), rev'd on other grounds, --- U.S. ----,

112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). The issue is

one of law for the court. United States v. Quinn, 543 F.2d

640 (8th Cir.1976). Our close review of the government’s

conduct in this case convinces us that it does not fall with-

in that narrow band of "the most intolerable government

conduct" for which the defense is reserved. United States

v. Musslyn, 865 F.2d 945, 947 (8th Cir.1989). The gov-

ernment did not manufacture the [*848] crime in this case;

it did not implant the criminal design in any of the Par-

A-10

dues. It was Michel who first told Agent Danzer that

some of the money to pay for the killing would come from

Jack Pardue. The officer was justified in exploring the

extent of Jack’s actual involvement in the murder plot.

We do not find the required level of outrageous miscon-

duct that requires acquittal on due process of law grounds.

Accordingly, we reverse the judgment of acquittal

entered by the district court. We remand the case to the

district court for reinstatement of the jury’s verdicts of

guilty as to Counts 1 and 3 and for entry of judgments of

conviction thereon as to the defendant Jack Pardue, and for

further proceedings.

LAY, Senior Circuit Judge, dissenting.

As to the grandfather, Jack Pardue, the district court

wrote:

The evidence shows that Jack Pardue did not par-

ticipate in any of this plan except to aid his entrapped

grandson in carrying out what had been largely direct-

ed by Gary Danzer. There is also no indication from

the evidence that there was any intent for Jack Pardue

to become involved until Gary Danzer set out to make

him become involved through the various artifices

employed by him described above. In short, if Jack

Pardue had any intent to commit the crimes for which

he was convicted, that intent was also placed in his

mind by the actions of Danzer utilizing Michel. Thus,

the court finds that Jack Pardue was also entrapped as

a matter of law.

There is no evidence that Jack Pardue was part of the

origina! conspiracy agreement, let alone predisposed to

A-11

commit this crime. The essence of conspiracy is the ag-

reement to commit an illegal act, United States v. Ameri-

can Grain & Related Indus., 763 F.2d 312, 315 (8th Cir.

1985), and proof of a tacit understanding is sufficient to

show a common plan. United States v. Hoelscher, 914

F.2d 1527 (8th Cir.1990), cert. denied, Giuffrida v. Unit-

ed States, --- U.S. ----, 111 S.Ct. 971, 112 L.Ed.2d 1057

(1991) and cert. denied, Meriwether v. United States, ---

U.S. ----, 111 S.Ct. 2240, 114 L.Ed.2d 482 (1991).

Here, there was no evidence that Jack Pardue knew about

the conspiracy before Danzer insisted on meeting with him

to see the money. Jack Pardue’s name was mentioned

when Michel Pardue promised that the money would be

paid by his grandfather. However, there was no evidence

at trial that the grandfather even knew of the murder plan

at that time. The grandfather was not present at the initial

meeting with agent Danzer in the prison, at the subsequent

meeting in the prison parking lot, or at any meeting with

Danzer thereafter. Indeed Jack Pardue refused time and

again to meet with Danzer. Thus, no evidence exists which

would support a finding that Jack Pardue tacitly agreed to

the murder scheme. On the other hand, there is no ques-

tion that Danzer on several occasions through his dealings

with Michel Pardue, repeatedly attempted to meet and

criminally involve Michel’s grandfather in the scheme.

Moreover, I find there exists no evidence prior to

September when the bogus murders took place from which

a jury could find beyond a reasonable doubt that Jack

Pardue acted in furtherance of the conspiracy.' The only

' Had Jack been part of the conspiracy agreement, it would

. not have been necessary for the government to show he acted in

furtherance of it because an overt act of a single conspirator

A-12

possible evidence of an overt act before July 9 that can be

considered incriminating is Jack Pardue’s accompanying

Michel Pardue to meet Danzer on July 2. However, Jack

Pardue never entered the restaurant; he remained in the

car. I find this standing alone does not constitute suffi-

cient evidence to convict. Jack Pardue testified that he

accompanied Michel Pardue because of his fear for Mi-

chel’s safety. Although the jury had a right not to believe

this testimony, the possible rejection of it does not prove

that Jack had committed any act in furtherance of [*849]

the conspiracy or had tacitly agreed to become part of the

conspiracy.

It has long been the rule that "where the government's

evidence is equally strong to infer innocence of the crime

charged as it is to infer guilt, the verdict must be one of

not guilty and the court has a duty to direct an acquittal."

See United States v. Kelton, 446 F.2d 669, 671 (8th

Cir.1971). Mere association, as opposed to participation,

is not sufficient to establish guilt of a conspiracy. United

States v. Williams, 341 U.S. 58, 64 n. 4, 71 S.Ct. 595,

599 n. 4, 95 L.Ed. 747 (1951). Indeed throughout the

week prior to July 9, the evidence shows that Jack Pardue

tried to dissuade Michel Pardue from getting involved.

Michel Pardue’s statement to Danzer that his grandfather

wanted to stall until an alibi could be established cannot be

considered an act in furtherance of the conspiracy because

it goes only to what the grandfather may have thought

about the conspiracy, not to anything he overtly did in

knowingly committed in furtherance of the conspiracy is consid-

ered the act of all conspirators. Pinkerton v. United States, 328

U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489

(1946).

A-13

furtherance of it. The evidence shows that Michel Pardue

and Jack Pardue never discussed the substance of what

their alibi would be and that the mere mention by Michel

Pardue to Danzer of them wanting an alibi was purely a

stalling technique used by Michel. No other evidence was

presented at trial that the grandfather acted to further the

conspiracy prior to July 9.

The original conspiracy involving Michel Pardue, to

kill the Harringtons before July 9 so that Mr. Harrington

could not testify at David Pardue’s perjury trial, terminat-

ed on July 9 when David Pardue pled guilty. The conspir-

acy to murder the Harringtons was completely resurrected

by the government nine weeks later when it staged the

murder and demanded the money from Michel Pardue. It

is only then that evidence exists that Jack Pardue "joined"

the conspiracy. The evidence shows that Jack Pardue

ultimately mailed the $4500 to "Chuck Ross" once the

"murders" had taken place because he feared for the safety

of himself, his wife and Michel.’ The entire staging of

the murder, however, was the government’s plan--used not

to induce Michel Pardue, because there was already suffi-

cient conduct to subject him to arrest without the staged

murder--but to induce Jack Pardue to participate in the

scheme.

Under such circumstances, I find that the government

acted improperly by inducing Jack Pardue, albeit with

Michel Pardue as its conduit, into paying the money to

> Jack Pardue testified that he and his wife slept one night

on an air mattress in his field because they feared "Chuck"

would come to the house to hurt them.

A-14

Danzer.’ There exists no evidence that Jack Pardue was

predisposed to enter the conspiracy when he aided Michel

in delivering the payoff in September. As Jacobson v.

United States, --- U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d

174 (1992), makes clear, predisposition is tested at a time

prior to the government’s acts intended to create predispo-

sition. Id. at ---- - ---- n. 2, 112 S.Ct. at 1540-41 n. 2.

The evidence shows that Jack Pardue had refused to meet

Danzer and constantly tried to persuade Michel to do the

same. I would hold that the district court was correct in

finding that Jack Pardue was entrapped as a matter of law.

In Jacobson the Court observed: "‘[T]he government

[may not] pla[y] on the weaknesses of an innocent party

and beguilfe] him into committing crimes which he other-

wise would not have attempted." Jacobson at ----, 112

S.Ct. at 1543 (quoting Sherman v. United States, 356 U.S.

369, 376, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958)).

[*850] There is little doubt the government played on the

> The government urges that Jack Pardue cannot assert en-

trapment as a defense because Jack was induced by Michel

Pardue to make the payment and that Jack cannot claim entrap-

ment when the inducement is by a private individual. See Unit-

ed States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987) ("[T]he

entrapment defense’ is only available to defendants who were

directly induced by government agents”). Here, however, it is

undisputed the government worked through Michel, as a conduit

or unwitting middleman, in instilling fear in him, that Michel’s

life would be in jeopardy unless the grandfather paid the money.

See United States v. Pilarinos, 864 F.2d 253, 256 (2d Cir. 1988)

("A defendant is entitled to a derivative entrapment defense ...

when the government’s inducement was directly communicated

to the person seeking [the] entrapment charge by an unwitting

middleman. ").

A-15

love and affection of a grandfather for his grandson in

getting Jack Pardue to pay money for a bogus murder as

protection for Michel Pardue from threats made by govern-

ment agents.

I would sustain the district court judgment of acquittal.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

UNITED STATES of America, :

Appellant, . No. 91-2290/

V. 2 2307/2388WAF

DAVID PARDUE, et al. .

Appellee. ?

The suggestions for rehearing en banc are denied.

The petitions for rehearing are also denied.

February 16, i993.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

UNITED STATES of America, ’

Appellant, °

V. ° No. 91-2307

JACK PARDUE, ”

Appellee. 7

MICHEL PARDUE, .

*

Appellee-Cross-Appellant.

Submitted Dec. 11, 1991.

Decided Jan. 4, 1993.

Rehearing and Rehearing En Banc

Denied Feb. 16, 1993.

[983 F.2d 835]

Before LAY,’ Chief Judge, WOLLMAN and HANSEN,

Circuit Judges.

LAY, Chief Judge.

This is a conspiracy to murder case, one more tragic

than complex. The government has appealed judgments of

acquittal entered by the district court, vacating the jury’s

guilty verdicts against Michel Pardue and his grandfather,

Jack Pardue, on two counts: (1) conspiracy to use inter-

State commerce facilities in connection with murder for

hire under 18 U.S.C. § 371 (1988), and (2) engaging in or

"The Honorable Donald P. Lay was Chief Judge of the

United States Court of Appeals for the Eighth Circuit at the time

this case was submitted and took senior status on January 7,

1992, before the opinion was filed.

A-17

aiding and abetting interstate travel in connection with

murder for hire under 18 U.S.C. § 1958(a) (1988). The

district court vacated the convictions, finding the conduct

of the government to be outrageous and to constitute en-

trapment as a matter of law. 765 F.Supp. 513 (W.D.Ark.

1991). On this basis, the court entered judgments of

acquittal for Michel Pardue and his grandfather, Jack

Pardue.

[*837] We now vacate the judgment of acquittal of

Michel Pardue with directions to reinstate the guilty ver-

dict against him; in a companion opinion filed this date,

983 F.2d 843, this court also vacates the judgment of

acquittal in favor of Jack Pardue, Michel’s grandfather.

i

In the fall of 1989, David Pardue, while serving a five

year sentence for robbery in an Arkansas state prison,

offered another prison inmate, Gary Garrett, monies to kill

Bob Harrington and Harrington’s wife Janis.’ Harrington

had participated in the robbery and was prepared to testify

against David Pardue at a perjury trial scheduled for July

8, 1990. David Pardue provided Garrett with written

details of the "job" he wanted performed ("I want both of

them picked up. I want her left in Oklahoma somewhere,

just over the border, and him never found"), a handwritten

map showing Harrington's home town and address, and

xeroxed photographs of the Harringtons. Garrett told

David Pardue that he would have a cousin commit the

murders and split the fee with him. Garrett, seeking le-

niency on his own sentence for an unrelated crime, imme-

' Pardue had unsuccessfully solicited two other inmates to

serve as, or to locate, a hit man.

A-18

diately notified the Arkansas State Police and state prose-

cutor. In May of 1990, local authorities interviewed Gar-

rett and notified the FBI of Pardue’s plan.

Sometime shortly before July 1, 1990, the FBI sent

Garrett a letter (GX 7) for David Pardue which purported

to be from Garrett’s cousin, "Chuck Ross," indicating

"Chuck" would "help [Pardue] with that problem of his" if

he was paid $10,000 with one-half up front. David Pardue

asked to meet "Chuck" and asked Garrett to give a picture

of "Chuck" to Pardue’s son Michel. David Pardue noted

that his "folks" would be visiting the upcoming weekend,

and it would be a good time to meet "Chuck."

On July 1, 1990, FBI agent Gary Danzer visited Gar-

rett at the Varner Unit posing as hired killer, "Chuck

Ross." At the same time, Michel Pardue was at the prison

visiting his father. The Pardues were sitting at one table,

Garrett and agent Danzer at another. Danzer testified that

during the course of the visit David Pardue walked over to

Garrett and told him to have his "cousin" go to David

Pardue’s table. Danzer then left Garrett, sat down with

David Pardue and said he had heard Pardue had a prob-

lem. Danzer testified that David Pardue explained that he

wanted a truck driver and his wife killed, wanted her body

to be left just over the Oklahoma border, and wanted his

body to remain undiscovered so that it would appear that

the husband had committed the murder and no suspicion

would be placed on David, his father Jack, or Michel.

David Pardue said the killing had to occur in the next

couple of days and Michel Pardue set a deadline of July 8.

Danzer said his fee was to be $5000, and David apparently

A-19

agreed that $500 would be paid up front.’ After sitting

with the Pardues for about five minutes, Danzer told them

he no longer wanted to discuss matters in the prison and

he would be in the parking lot for a period of time if they

wanted to conclude the deal.

Garrett testified that after Danzer left, David Pardue

told Garrett that he had asked his son whether he had any

second thoughts about meeting "Chuck" in the parking lot.

According to Garrett, Michel Pardue apparently said "no,

none whatsoever," and then told his father he could give

"Chuck" a couple hundred dollars now and the rest of the

$500 after he met him the following week to show

"Chuck" where the Harringtons lived. Michel Pardue,

however, testified he had told his father after Danzer left

that he thought harming the Harringtons was a bad idea.

According to Michel Pardue, David Pardue responded that

Michel was the only one he could count on to help him.

Michel Pardue stated that when he left the [*838] prison

he had no plans to meet up with "Chuck" in the parking

lot.

It is undisputed, however, that Michel Pardue showed

up in the parking lot about twenty minutes later and en-

tered into a discussion with Danzer who had parked within

three or four cars of Michel. At this time, Michel Pardue

gave Danzer $250 and a map of Arkansas on which Michel

wrote the Harringtons’ address (incorrectly) and a phone

number where Michel could be reached. Danzer testified

that Michel Pardue also promised that his grandfather,

> The record does not indicate why the original offer of

$10,000 was cut in half. Nor is there any explanation as to who

suggested that the "up-front" figure be lowered from $5000 to

$500.

A-20

Jack Pardue, would pay the remaining $4500 upon com-

mission of the murders. Danzer said he would contact

Michel Pardue later. Danzer also testified that Michel

Pardue told him he would receive the additional $250 if

Danzer would follow him and drive by the Harringtons’

residence. Michel Pardue, however, testified that he did

not ask Danzer to follow him to Gentry, Arkansas at that

time, explaining that it would make no sense for him to do

so since he had made dinner plans with his girlfriend and

her father for that evening.

Danzer contacted Michel Pardue at 2:00 a.m. the next

morning (July 2) and in a taped conversation’ (GX 13)

told Michel that he needed better pictures of the Harring-

tons and that he wanted Michel to drive him by the Har-

rington residence later that day. He told Michel Pardue he

would call him at 11:00 a.m. because "I need to get this

done and get going." He also requested that Michel Par-

due deliver the remaining $250. In response to Danzer’s

questions regarding Michel Pardue’s ability to obtain the

rest of the cash, Michel assured him that it would not be a

problem, "just as long as, uh, somehow I know that, its,

uh, been taken care of."

As promised, Danzer phoned Michel Pardue at 11:00

a.m. that day (GX 14), and they agreed to meet at a

Speedy Mart in Gentry, Arkansas that afternoon. At the

* Danzer wore a recording device when he met Michel and

David Pardue the day before, but the device malfunctioned.

Consequently, there is no tape recording of his conversation

with David and Michel Pardue inside the prison or with Michel

Pardue in the prison parking lot. Danzer and Michel Pardue

had several subsequent conversations, both on the telephone and

in person, all of which were recorded and played for the jury at

trial.

A-21

Speedy Mart, Michel Pardue told Danzer (GX 15) they

would look at the Harringtons’ home, then pick up the

pictures which Michel had hidden near a tree stump about

five miles away. Michel Pardue expressed concern that

his fingerprints would be on the photographs of the Har-

ringtons. Michel Pardue then drove Danzer by the Har-

rington residence, led him to the photos, and paid him the

remaining $250.

Danzer telephoned Michel Pardue again at 6:00 p.m.

that evening. Danzer repeatedly asked where the rest of

the money was coming from and requested that Michel

Pardue "show" him the $4500 balance before the "killing

took place." Danzer tried in several different ways to get

Michel Pardue to commit that his grandfather would meet

Danzer to show him the money. Danzer specifically

asked, "Where is the money? Does your grandpa have the

money? I mean that’s what I’d gathered from talking to

you." Their conversation was momentarily interrupted

when Michel Pardue spoke to his grandfather briefly

through the use of call-waiting. When Michel Pardue

returned to Danzer, he told Danzer that the "murder

scheme was happening too fast for [his grandfather] and its

a little bit too fast for me, too." He explained that he and

his grandfather had first heard of the murder plan during

visiting hours the previous day.

Still insisting that they meet that evening to view the

money, Danzer said, "if I get somebody up here to, to

help me they they’re gonna want to kill me about the time

I don’t be able to come across with the money, do you

understand what I’m saying?" Michel Pardue agreed to

talk with his grandfather. A few minutes later, Michel

Pardue called Danzer back and agreed that he and his

grandfather (Jack) would meet Danzer at Shoney’s that

evening at 9:30. At the restaurant, Michel Pardue and

A-22

Jack Pardue arrived together in the same vehicle, although

Jack remained in the parking lot in his truck and only

entered [*839] the restaurant briefly to watch Michel’s

table. Michel Pardue told Danzer that both he and his

grandfather wanted to have an alibi when the murder

occurred. Michel Pardue stated clearly that his grandfa-

ther did not want to meet with Danzer. Danzer indicated

that he was ready to do the job that night, but Michel

Pardue replied that his grandpa did not like the idea of

"going tonight, Chuck, because its so, is happened so

fast." Danzer then asked, "Does he wanna go with it or

does he wanna go?" Michel Pardue answered that his

grandfather did want to go with it, but that his grandfather

believed someone should talk to David about it, and that

Jack Pardue should be out of town when the murder took

place. Danzer said, "In other words, you still want’em

whacked, you don’t want’em whacked tonight?" Michel

Pardue responded affirmatively. After Danzer expressed

concern about getting the job done before the perjury trial,

Michel told him that he didn’t "[m]Jean to put you out,

Chuck, ... I am trying to hold up my end of the deal" and

"[iJf my dad wants it done well then I’m going to do ev-

erything possible to see that it gets....". Danzer then told

Michel that if his grandfather "makes up his mind what he

wants done, about the only thing I can tell you is, uh,

you'll have to go: through uh, uh, Gary [Garrett] to get a

hold of me." One week later on July 8, Danzer tele-

phoned Michel Pardue (GX 25) and again attempted to get

the plan moving. Michel Pardue told Danzer he had been

unable to talk to his father and had not learned anything

else regarding the murder. Towards the close of the con-

versation, Michel Pardue asked Danzer to call him back

the next evening.

On July 9, David plead guilty to the perjury charge

A-23

and received an additional seven years imprisonment.

David Pardue told Garrett, his fellow prisoner, to have

"Chuck" quit contacting his family because "Chuck" was

scaring them.

Garrett, however, continued to write letters to local

authorities and prosecutors encouraging them to press the

issue. On July 31, 1990, the FBI obliged him, writing a

letter from "Chuck" to Garrett to be given to David Par-

due. The letter reiterated "Chuck’s" willingness "to do the

job" and requested that Pardue write back. On August 6,

FBI agents received a letter* written by David Pardue and

signed by both Garrett and him which indicated David was

willing to go ahead with the plan, but that "Chuck" would

receive no more money until after the murders.

Nine weeks passed. On September 16 Danzer called

Michel Pardue to inform him that the job would be done

within the next three days. Michel Pardue expressed

surprise over the news because there had been no further

* The letter stated as follows:

The understanding I had was That $500 down and the rest

when the job was done, That the money Would be sent to a

Post Office Box or wherever you Wanted it sent, This is

the way I told My boy. That Way They don’t have to be

any Contact after the job. My Boy Was leary of Bring the

money before the job was done, because this was not in the

agreement, you and I had agreed that the money would be

sent to an P.O. Box of your Choosing, as soon as you

notify one of us the address. No more money will be

payed until the job is done, the money will be payed to you

have Mine and Gary Word on it.

JA 144 (GX 27).

A-24

mention of the murder scheme since July 8 and his father

"never said anything to me about it today [at his prison

visit].". Michel Pardue testified that he believed "Chuck"

was going to call him back before actually committing the

murders, although the tape of the conversation does not

indicate any such agreement. A few days later, on Sep-

tember 20, Danzer called Michel Pardue again (GX 33)

and told him the job was done. Danzer then asked Michel

Pardue to meet him at Shoney’s at 5:00 p.m. in order to

show him evidence of the killings. Michel Pardue reluc-

tantly agreed, saying "Ok, uh, well, "Chuck" I was going

to tell you that I didn’t want to meet with you but I guess

its too late now."

Michel Pardue arrived in the same vehicle with Jack

Pardue. However, only Michel Pardue met with Danzer

in the restaurant. Danzer then showed Michael Pardue

[*840] two very realistic, graphic photographs of the ap-

parent murder victims resembling the Harringtons. One of

the photos, which had been staged by law enforcement

officers with the assistance of Bob Harrington, showed

Harrington with silver duct tape across his mouth and

blood running across his face and out of his ear from what

appears to be a bullet wound immediately behind his right

ear. The other shows a woman lying behind Harrington,

her wrists bound with silver duct tape. Michel Pardue told

Danzer (GX 34) he didn’t like talking about "the deal" at

the restaurant. He asked if there was "any way that they

can get found," to which Danzer replied, "Not right now.

But they’re gonna be missed." Michel Pardue told Danzer

he would receive his money and inquired about the where-

abouts of the photographs he had given Danzer in Gentry,

Arkansas. Michel Pardue expressed concern over the

identity of the woman in the picture, saying, "Boy, I wish

I could see her and ... make sure it’s her."

A-25

A few days later, on September 24, after Michel and

Jack Pardue visited David Pardue at the Varner Unit to tell

him that the deal was done, Michel and Jack sent $4500

cash inside a Bible to the post office box in Oklahoma

which Danzer had designated. Michel Pardue testified that

the money came from his grandfather and from his father’s

wall safe inside his grandfather’s house.

II.

The district court found that the conduct of the gov-

ernment constituted entrapment as a matter of law. In

addition, the court found the role of the government agents

to have constituted conduct "so outrageous that due process

principles would absolutely bar the government from in-

voking judicial processes to obtain a conviction." See

United States v. Russell, 411 U.S. 423, 431, 93 S.Ct.

1637, 1642, 36 L.Ed.2d 366 (1973).

Although the district judge’s concerns are readily

understandable, especially in light of the government’s

post-July 9 conduct, we find that under controlling law we

must disagree. Although judges may express compassion

for youthful individuals who become reluctant pawns of

others wrongfully influencing them into violating our

criminal laws, our human emotions may not dictate legal

norms or deviate from the rule of law.

We are satisfied that under the law there was suffi-

cient evidence for the jury to find that Michel Pardue

voluntarily conspired with his father, David Pardue, to

solicit and hire an individual to commit murder of two

individuals. Needless to say, this was a serious crime. In

this regard, we find that the district court misapplied the

law of entrapment.

The district court found that the government infor-

A-26

mants (Danzer and Garrett) planted the criminal design in

the mind of Michel Pardue. The court found as a matter

of law that Michel Pardue was not predisposed to commit

the crime. We believe that the evidence was sufficient to

allow the jury to pass on these questions and precludes the

court from ruling on these issues as a matter of law.

Entrapment as a matter of law may exist where the

evidence establishes that the government agent originated

the criminal design; that the agent implanted in the mind

of an innocent person the disposition to commit the of-

fense; and that the defendant then committed the criminal

act at the urging of the government. United States v.

Ford, 918 F.2d 1343, 1347 (8th Cir.1990) (citing United

States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978)). The

defense of entrapment focuses on the intent or predisposi-

tion of the defendant to commit the crime in question.

Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct.

1646, 1649, 48 L.Ed.2d 113 (1976); Mathews v. United

States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54

(1988).

In the recent decision of Jacobson v. United States, ---

U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), the

Supreme Court held entrapment existed as a matter of law

because the government had attempted to induce the defen-

dant for over 26 months to buy obscene literature [*841]

through repeated mailing and contacts. However, in dis-

cussing entrapment, the court observed:

Thus, an agent deployed to stop the traffic in illegal

drugs may offer the opportunity to buy or sell drugs,

and, if the offer is accepted, make an arrest on the

spot or later. In such a typical case, or in a more

elaborate "sting" operation involving government-

sponsored fencing where the defendant is simply

A-27

provided with the opportunity to commit a crime, the

entrapment defense is of little use because the ready

commission of the criminal act amply demonstrates

the defendant’s predisposition. See United States v.

Sherman, 200 F.2d 880, 882 (CA2 1952). Had the

agents in this case simply offered petitioner the oppor-

tunity to order child pornography though the mails,

and petitioner--who must be presumed to know the

law--had promptly availed himself of this criminal

opportunity, it is unlikely that his entrapment defense

would have warranted a jury instruction. Mathews v.

United States, 485 U.S. 58, 66, 108 S.Ct. 883, 886,

99 L.Ed.2d 54 (1988).

Jacobson, --- U.S. at ----, 112 S.Ct. at 1541.

Here, the district court overlooked the fact that evi-

dence was presented to the jury that it was Michel

Pardue’s father who created the criminal scheme to hire

someone to kill the Harringtons, not the government

agents. The jury heard evidence that Michel Pardue was

present at the prison throughout the time that David Pardue

told Danzer what he wanted and how he wanted the Har-

ringtons killed. Michel did not leave the scene. True, it

was Danzer who suggested that Michel Pardue deliver the

money to him in the parking lot. However, there was no

evidence of coercion or duress displayed at that time.

Michel Pardue, under the obvious, unfortunate and mis-

guided influence of his father, expressed the desire to do

whatever his father wanted. Immediately after the conver-

sations, Michel Pardue met Danzer in the parking lot and

gave him the down payment (from his own funds) and

plotted with Danzer further conspiratorial acts.

The district court erred in finding entrapment as a

matter of law because the evidence here shows no pro-

A-28

longed effort to induce Michel Pardue to react to the infor-

mant’s suggestion. Michel Pardue willingly handed over

$250 to the government agent without any evidence that at

that point he had been wrongfully persuaded or induced by

the government agent. The government agent, upon the

solicitation of David Pardue, Michel’s father, merely

provided the opportunity for Michel to engage in the

crime; the evidence is clear that Michel "promptly availed

himself of this criminal opportunity." Michel Pardue’s

presence during the discussion of his father’s scheme and

his payment of $250 from his own funds to Danzer shortly

after the meeting, provide substantial evidence sufficient

for a jury to find that Michel Pardue was predisposed to

follow his father’s wishes. The jury had an opportunity to

hear all of the evidence and evaluate the credibility of

Michel Pardue and the government witnesses, and was

properly instructed on the law of entrapment.°

5

The entrapment instruction was as follows:

With regard to entrapment, you are instructed that if the

defendant did not have any previous intent or disposition to

commit the crimes charged, and was induced or persuaded

by law enforcement officers or their agents to commit those

crimes, he was entrapped. On the other hand, if the defen-

dant did have a previous intention or disposition to commit

the crimes charged, then he was not entrapped, even

though law enforcement officers or other agents provided a

favorable opportunity to commit the crimes, or made com-

mitting the crimes easier, or even participated in acts essen-

tial to the crime. The Government has the burden of prov-

ing beyond a reasonable doubt that the defendants were not

entrapped.

A-29

The district court further erred in holding that due

process required acquittal of Michel Pardue based on

Outrageous government conduct. While the defense of

outrageous government conduct has been recognized, see

Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646,

48 L.Ed.2d 113 (1976) (Powell & Blackmun, JJ., concur-

ring; [*842] Brennan, Stewart & Marshall, JJ., dissent-

ing), the defense has been reserved "only for the most

intolerable government conduct," United States v. Muss-

lyn, 865 F.2d 945, 947 (8th Cir. 1989).

Even if the government’s conduct after July 8 could

be said to have been outrageous, due process does not

require Michel Pardue’s acquittal because the evidence

before July 8 established that Michel Pardue was not only

willing to go along with his father’s murder plans, albeit

concocted in part by the government, but had in fact al-

ready violated the law in participating in the initial plan-

ning and payment to have the murder carried out. In

order for a defendant to be convicted of conspiracy, the

government must show that the defendant entered into an

agreement with at least one other person, the objective of

which was unlawful, and that one of those in agreement

committed an overt act in furtherance of the conspiracy.

United States v. Austin, 823 F.2d 257 (8th Cir.i987), cert.

denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864

(1988); see also United States v. Hern, 926 F.2d 764 (8th

Cir.1991). The evidence shows that Michel Pardue had

been present and willingly participated in the initial discus-

sions between his father and Danzer regarding the planned

murder of the Harringtons. Michel Pardue’s payment of

money to Danzer was the requisite overt act. Once this

JA 49.

A-30

occurred, there was sufficient evidence for a jury to con-

vict Michel Pardue of conspiracy to hire for murder.°®

At this point in time (July 8), the government, al-

though it had used "artifice" and "stratagem," had not

committed any outrageous act. The government had mere-

ly used a ruse to see if David Pardue (and Michel) would

further the conspiracy to fruition. Under the law, such a

ruse is permissible. As the court recognized in Jacobson:

Likewise, there can be no dispute that the Government

may use undercover agents to enforce the law. "It is

well settled that the fact that officers or employees of

the Government merely afford opportunities or facili-

ties for the commission of the offense does not defeat

the prosecution. Artifice and stratagem may be em-

ployed to catch those engaged in criminal enterprises."

Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct.

210, 212, 77 L.Ed. 413 (1932); Sherman v. United

States, 356 U.S. [369], at 372, 78 S.Ct. [819], at 820

[2 L.Ed.2d 848 (1958)]; United States v. Russell, 411

U.S. 423, 435-436, 93 S.Ct. 1637, 1644-1645, 36

L.Ed.2d 366 (1973). ~

Jacobson, --- U.S. at ----, 112 S.Ct. at 1540.

We thus find that substantial evidence exists to support

the jury’s verdict that Michel Pardue was not entrapped.

Any conduct by the government subsequent to Michel Par-

due’s first payment of $250 to Danzer, regardless of how

outrageous, cannot alter the fact that a jury could reason-

ably find from the evidence then existing that Michel Par-

° Michel Pardue acted even further by providing Danzer

with better photographs of the Harringtons.

A-31

due had already participated in the conspiracy to commit

murder.

CROSS-APPEAL

Michel Pardue has filed a cross-appeal in the event

that the district court’s judgment was to be vacated. He

asserts that he was prejudiced by reason of the cross-exam-

ination of his father, David Pardue, ‘concerning other

crime conduct under Federal Rule of Evidence 403. Mi-

chel Pardue did not object to the cross-examination at the

time of trial and therefore this evidence, as it pertains to

Michel Pardue, can only be reviewed under the plain error

rule. We find that the evidence relating to the conspiracy

was sufficiently detached and unrelated to the cross-exami-

nation of David Pardue concerning his prior conduct. We |

find no prejudicial error. The judgment vacating Michel

Pardue’s conviction is therefore reversed. The case is

remanded to the district court with directions to enter a

judgment of conviction on the verdict.

[*843] JUDGMENT REVERSED.’

” As author of this opinion, I add the following comment.

This statement is not joined in by the other panel members.

District judges possess under the sentencing guidelines the

right to consider mitigating factors and the role played by an

offender in the offense. See, e g., U.S.S.G. § 3B1.2. Judges

may depart from the sentencing guidelines where factors, such

as a domineering, coercive parent or scheming coercive govern-

ment informants, play the major role in the crime. See U.S.

S.G. § 5K2.12; see, e.g., United States v. Naylor, 735 F.Supp.

928 (D.Minn.1990) (departing downward based on finding that

Naylor had a clean record, was a good student, and was active

A-32

in her community until she became romantically involved with

the co-defendant, a man fifteen years her senior); United States

v. Osseiran, 798 F.Supp. 861 (D.Mass.1992) (departing down-

ward based on its finding of mitigating coercion in "the threat-

ening role of the government’s own well-paid confidential

informant who was a central figure in organizing the narcotics

-transaction"). See also Weinstein, A Federal Judge’s Reflections

on Departures From the Sentencing Guidelines, 5 FSR 6 (1992);

Selya, An Examination of Emerging Departure Jurisprudence

Under the Sentencing Guidelines, 67 Notre Dame L.Rev. |

(1991). The extent of the departure lies within the informed

discretion of the district court and may in an appropriate case

provide for a confinement alternative other than a prison.

A-33

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

UNITED STATES of America,

Plaintiff,

Nos. 90-50012-

01-03

Vv.

DAVID PARDUE, JACK

PARDUE, MICHEL PARDUE,

Defendants.

+ &£ & & EF F

Decided May 13, 1991.

[765 F.Supp. 513]

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Defendants, Jack Pardue (the grandfather), David

Pardue (the son), and Michel Pardue (the grandson), were

indicted in a three-count indictment charging them with

violation of 18 U.S.C. § 1958 and 18 U.S.C. § 371. Spe-

cifically, defendants were charged with use of the mail or

other facilities of interstate commerce or causing others to

use such facilities and to travel in interstate commerce or

to cause others to so travel to commit murder in Arkansas.

In layman’s terms, this is a "murder for hire" case. The

case was tried to a jury from April 1 through April 5,

1991, and, after almost five hours of deliberation, defen-

dants were all convicted. Pending before the court are

separate Rule 29 motions for judgment of acquittal filed by

all defendants.

A-34

[*515] Facts

David Pardue, son of Jack Pardue, and father of Mi-

Chel Pardue, was charged in state court in Benton County

with robbing a Wal-Mart store in April of 1987. It appears

from the evidence that David had a long history of engag-

ing in shoplifting activities with various other individuals

in Arkansas and surrounding states. In April of 1987

David and his confederate, Bob Harrington, were engaged

in this activity when confronted by a woman security

guard employed by Wal-Mart. A chemical known as

"Mace" was sprayed on the guard and the shoplifters fled.

David was later arrested and was tried in December of

1987. After being convicted by the jury of the robbery

charge, he was sentenced to a five-year term of imprison-

ment and was sent to the Varner Unit of Cummins Prison

operated by the Arkansas Department of Correction. At

some subsequent time not shown by the evidence, his

confederate in the robbery, Bob Harrington, came to the

attention of the local prosecutor’s office in Benton County.

For whatever reason, the prosecutor, David Clinger, did

not charge Harrington, but instead, with Harrington’s help,

charged David with committing perjury and causing others

to commit perjury during his December, 1987, trial.

Two of David’s jailmates when he was in the Benton

County jail, Bobby Jones, and Joe Head, both convicted

felons themselves, testified in behalf of the government in

the trial in this court that during David’s incarceration with

them in the Benton County jail he indicated a desire to

have someone kill Harrington. Head testified that David

told him "if I go to jail, he (Harrington) is a dead man."

Jones said that David also offered money to him to kill or

have someone kill "these people." Jones also claimed that

David "thought Clinger should be dead." He said that

A-35

when he was released from jail, David gave him a code

name of "Scanner" and a telephone number that he was to

call, apparently to arrange the murder. He said that the

telephone number belonged to David’s son, Michel, but

when he called the number several months later and used

the code name, the party who answered "hung up."

Apparently soon after arriving at the Varner Unit of

Cummins, David talked to a fellow inmate, David Wayne

Coleman. This conversation with Coleman and the various

conversations with Gary Garrett described below took

place during sessions of the "Substance Abuse Training

Program" (called by the inmates SATP class). It appears

that this program, which, from its name, seems to have

laudable purposes, was in reality an inmate run program

with little supervision which most if not all of the inmates

attended whether they were claimed to have substance

abuse problems or not because it was an opportunity to

meet with the other inmates in a largely unsupervised

atmosphere. At least in respect to this case, it appears that

the inmates utilized this time to discuss and plan other

criminal endeavors.

In any event, according to Coleman’s testimony,

during one of those sessions, or immediately after the

session, David asked Coleman if he knew anyone on the

outside who could "scare someone." Coleman told him

that he did not but that another inmate, Gary Garrett,

professed to have contacts on the outside that could appar-

ently accomplish about anything anyone might want ac-

complished. Coleman suggested that David might discuss

the matter with Garrett.

Garrett and David attended SATP classes together and

"became friends." Accordingly to Garrett’s testimony,

David told him about his problems and that Harrington

was a "backstabber" and that he "wanted him taken care

A-36

of." Garrett said that David wanted someone to kill Har-

rington, his wife, and small daughter and that he would

pay $10,000 for the job, $5,000 to Garrett and $5,000 to

the person he obtained who accomplished it.

Garrett, who might be the most reprehensible charac-

ter ever to testify before this court, obviously immediately

started plotting to ensnare David and members of his

family for no other purpose than to benefit Garrett. He

told David that he could obtain someone on the outside to

kill the persons as David desired and he had [*516] the

unsuspecting David write for him what was introduced as

government’s Exhibit # 1 which said:

I want both of them picked up. I want her left in

Oklahoma somewhere. ‘Just over the border’. And

him never found!

David also gave to Garrett a piece of notebook paper

introduced as government Exhibit # 2 which contained a

hand drawn map of Arkansas showing the location of

Gentry where Harrington lived, and other surrounding

towns, and the address of Bob Harrington which was

shown as 300 S.W. Giles Street, Gentry, Arkansas. He

also obtained from David a rather good photocopy of a

picture of Bob Harrington and a not so good copy of a

picture of Harrington’s wife, introduced as government’s

Exhibit # 3.

Armed with that damaging evidence, Garrett immedi-

ately set out to gain an advantage for himself. In a casual

conversation he asked David the name of the prosecuting

attorney responsible for convicting him, and was given the

name of David Clinger. On April 30, 1990, he mailed a

letter to Clinger (government’s Exhibit # 4) advising him,

among other things, that:

A-37

I have certain information and can get you enough

evidence to convict David Pardue and some family

members of a certain conspiracy charge. I cannot

disclose the nature of the conspiracy in this letter.

But can guarantee you it is a major charge. The

penalty I believe would be probably life. (emphasis in

original).

He went on to say that there was-"little time to stop

this from happening" and that "I’m sure we can come to

some kind of agreement." He then told Clinger in a post-

script that he could “guarantee you'll be pleased when you

hear me out."

Garrett subsequently wrote additional letters to Clinger

or other officials which were date stamped by the receiver

as having been received on June 4, 1990 (government’s

Exhibit # 5), June 6, 1990 (government’s Exhibit # 6),

June 15, 1990 (government’s Exhibit # 8), June 22, 1990

(government’s Exhibit # 9), June 29, 1990 (government’s

Exhibit # 10), and July 11, 1990 (government’s Exhibit #

10a).

In each of the letters it appears that Garrett attempted

to prod the officials to "do something." In the letter

stamped June 4, he said:

I believe I was working in good faith with the people

you sent to talk with me and was under the impression

you would do something for me. Please let me know

what’s going on.

In subsequent letters he told Clinger ur other officials

that he had talked with David and that David intended to

get someone else to do the job if he could not find some-

one for him and that "we do not have much time." And

A-38

"he’s in a big hurry to get this over with."

It appears from the evidence that most of the contacts

that Garrett had with authorities were with either David

Clinger, the prosecuting attorney for Benton County, or

state or local police officers apparently working under the

direction of Clinger. However, at some point shortly prior

to July 1, the Federal Bureau of Investigation became

involved in the case. A letter was written by investigating

officers to Garrett, purportedly from Garrett’s cousin,

"Chuck", advising Garrett that:

I got the stuff you sent me about the deal in Arkansas.

I can help your friend with that problem of his. But

not without 1/2 up front. I no (sic) how these things

go. You know that might be all I get. Let me hear

from you soon. I need some green.

While it is not completely clear from the evidence, it

appears that this letter was written some time shortly

before June 20, 1990, because, in a letter from Garrett to

Clinger postmarked June 20, 1990, Garrett refers to "the

letter your man mailed from Eagleton Ok."

In the June 20, 1990, letter Garrett also told Clinger

that he expected David Pardue to respond to the letter

written by the investigating officer and that it would "be

wrote in his handwriting." Significantly, Garrett also told

Clinger in this letter that:

He is real protective of his son. He don’t want no-

body else but me to meet him. [*517] Uniess they're

with me. I’ve talked myself blue in the face to him

but to no good.

However, Garrett, who was not easily deterred from

A-39

his desire to help the authorities to help himself, reported

to Clinger by letter postmarked June 28, 1990, that he

"might have come up with a way for your man to meet

with the people you want him to meet", and urged Clinger

to contact him either by phone or in person.

FBI Agent, Gary Danzer, from Kentucky, then en-

tered on the scene, posing as hitman, Chuck Ross, Garr-

ett’s cousin. July 1 was a regular visiting day at the Var-

ner Unit and apparently Danzer was to meet Garrett during

regular visiting hours and Garrett had apparently advised

David Pardue that his cousin would be there on that date.

The evidence indicates that visitation was held in a large

room equipped with numerous small tables with four chairs

provided at each table. The table where Garrett met with

Danzer was some distance from the table being used by

David Pardue and his son, Michel. Danzer, after first

contacting Garrett at his table, then went to Pardue’s table.

He told Pardue that he could help him with his problem

and, during his testimony, he said that David Pardue ad-

vised him that he wanted two people killed and he gave

him at least some of the details. After a relatively brief

discussion, Danzer told David Pardue that he did not want

to talk with him there in the prison but that he would wait

in the parking lot while David talked with his son, Michel,

and if they were interested in hiring him to do the killing,

Michel could meet him in the parking lot and advise him

of that. He said that he would wait thirty minutes for

Michel to appear.

Danzer waited in the parking lot at the Varner Unit,

and Michel came out and discussed the matter with him.

During that discussion Danzer was given $250.00. It

appears to the court that the evidence indicates that, from

that moment forward, Danzer played the part of a cold-

blooded killer well (perhaps too well) and that, from that

A-40

point forward, Danzer largely dictated to Michel how the

plan was to be carried out and how and when they were to

meet in accomplishing it. As an example of the convinc-

ing performance that Danzer was capable of, David Par-

due, an experienced criminal, according to Garrett’s testi-

mony told Garrett that Danzer appeared to be a cold-

blooded killer that would do anything for money.

From the time Danzer entered the case he wore a

"wire" to tape record his meetings with the Pardues.

Unfortunately, according to Danzer, the tape recorder did

not work properly during his meeting with David Pardue

and Michel in the visitation room at the prison or on the

parking lot where he met Michel. That is most unfortu-

nate since those discussions and what was said and what

occurred during them goes to the very heart of Michel’s

entrapment and outrageous conduct defense. Be that as it

may, all other contacts between Danzer and Michel were

recorded and the tape recordings were played during the

trial.

It appears to the court, without question, that each and

every contact that Michel had with Danzer during the

course of this matter was planned and instigated by Dan-

zer. The first of these occurred when Danzer called Mi-

chel at his girlfriend’s home in Northwest Arkansas at

2:00 a.m. on July 2. Michel had given his girlfriend’s

number to Danzer when they met in the parking lot at

Cummins. There was no explanation why Danzer called

Michel at 2:00 a.m. rather than some reasonable hour of

the day.

In any event, although Danzer had a reasonably good

photocopy of a photograph of Harrington (government’s

Exhibit # 3) and had his address (presuming that he had

received what other authorities had already’ received),

during the telephone conversation at this early morning

A-41

hour he advised Michel that he needed pictures of the

Harringtons and asked Michel to get them for him. He

told Michel that he would call him at 11:00 a.m. that

morning because, "I’m gonna need to get ahold of you. I

need to get this done, and get going." Whereupon Michel

gave Danzer a beeper number that he could call in an

attempt to contact him. Michel then [*518] showed some

uncertainty about whether Danzer could reach him at

11:00 a.m. and said, "If you don’t get hold of me at noon

tomorrow Chuck, get ahold of me tomorrow the first thing

around six o’clock tomorrow evening or something like

that. Is that all right?" Danzer replied, "Well I want to

get this done if I can unless ya'll are not interested in

doing it." Michel replied that he understood but explained

that he had other things to do the next day and might be

difficult to contact. Danzer concluded the conversation by

saying that he would try to call him, and explained to

Michel that when they met he wanted Michel to take him

by the Harrington property and that he also needed for

Michel to provide him with better photographs of the

Harringtons. Danzer also advised that he expected another

$250.00 when they met again.

At 11:00 a.m. that morning, Danzer called the beeper

number that Michel had left with him, and when Michel

returned the call, they made arrangements to meet at a

Spe-Dee Mart in Gentry. They met in Gentry in mid-

afternoon and, as Danzer had asked Michel to do, he took

him by the Harrington property and pointed out their car

parked in the driveway and the license number on it. A

mere reading of the transcript of the tape recording made

during the meeting shows that Danzer continued to play his

cold-blooded killer role well. As an example, there was

discussion about whether the Harringtons had a child, and

when Michel advised him that he didn’t know but had

A-42

heard his grandfather say something about that possibility,

Danzer said:

You better find out what they want done with that kid

cause I’m not particular, don’t particularly cotton to

having anybody testifying against me ... I don’t want

anybody testifying. If there is somebody in the house

I need to know about it. If I can find them setting

there, I want to get this thing done pretty quick, to-

night probably.

At other times during the conversation he referred to

the killing as "whacking them" and said that he needed the

pictures to "make sure I know I’m going to get the right

people. { don’t want to come over here and whack the

wrong people, you know, then I lose $4,500 and whatever

problems you got you still got, but I don’t want to do it

twice." Toward the end of their meeting, Michel, driving

his automobile, led Danzer to the place near a dirt road

where he had hidden the photographs of the Harringtons.

Danzer pretended that he could not find them and had

Michel come to the old tree stump where they were hidden

to show them to him. They had a discussion and then

Danzer indicated that the pictures were good and "that’s

all I need." He then told Michel he would call him about

6:00 p.m.

At six that evening Danzer called Michel and it is

obvious from the recording of the telephone conversation

that Danzer had decided that he needed to meet with Mi-

chel’s grandfather, Jack Pardue, before the "killing" took ~

place. Danzer told Michel in this conversation that he

wanted to see the $4,000 balance that was owed him,

although he did not expect to be paid until the job was

done. He tried during the conversation, in several differ-

A-43

ent ways, to get Michel to commit that his grandfather

would meet with him to show him the money. Danzer

said more than once during the conversation that he as-

sumed grandpa had the money and tried to lead Michel

into admitting that. For example, Danzer said: "Where is

the money? Does your grandpa have the money? I mean

that’s, that’s what I’d gathered from talking to you."

During the telephone conversation with Danzer, Mi-

chel had a brief conversation, through the use of call

waiting, with his grandfather, and at the close of that

conversation Michel obviously tried to tell Danzer about

his grandfather’s concerns expressed in that conversation

but was interrupted repeatedly by Danzer. Michel finally

was allowed to say: "He’s saying its happening to, he, its

happening too fast for him and its a little bit too fast for

me, too." He goes on to tell Danzer that both he and his

grandfather heard cf the plan to kill the Harringtons for

the first time during the visitation with David the previous

day.

[*519] Danzer was not deterred. He insisted that

Michel Pardue and his grandfather meet with him so he

could view the money. He suggested, more than once,

that they meet that very evening at Shoney’s Restaurant in

Fayetteville. Danzer pointed out to Michel that David had

told him during the prison meeting that the job needed to

be done by July the 8th or 9th because David was expected

to be tried on the perjury charges shortly after that.’

Michel tried to put him off by saying that his father be-

' The evidence showed that, shortly before the trial on the

perjury charges scheduled for July 10, David Pardue pled guilty

to the charges and received an additional prison sentence of

seven years.

A-44

lieved that the trial would not go forward as scheduled

because he intended to dismiss his attorney in that case and

expected a continuance. Danzer insisted that they meet

that evening and said that he needed to make certain that

he was going to get paid, "cause I’m, you know, I may

have to get somebody to give me a little help too and, I,

you know, uh, I just wanta be able to do this, get my

money." Toward the end of the conversation, still insist-

ing that they meet that evening to view the money, Danzer

explained his need to see the money by saying, "If I get

somebody up here to, to help me then they’re gonna want

to kili me about the time I don’t be able to come across

with, do you understand what I’m saying? I got expenses

and responsibilities." He then left a telephone number

with Michel and it was agreed that he would talk with his

grandfather and Michel would call him back.

A few minutes later Michel did so and agreed that he

and his grandfather would meet Danzer at Shoney’s that

evening at 9:30 p.m. but that, "we’re not going to have it

with us, 0.k.?" Danzer, apparently satisfied that he would

finally get to meet and implicate in the plan the grandfa-

ther, replied, "O.k., I'll be down there."

At 9:30 p.m. that evening, Michel met Danzer at

Shoney’s in Fayetteville, but his grandfather did not ap-

pear. Danzer immediately again tells Michel that he has

help coming to kill the Harringtons and that that individual

is already on the way and that he needs to be able to satis-

fy him also. Michel again explains that the first time he

had heard of this plan was when Danzer met with his

father in the prison on the day before and it is obvious

from his end of the conversation that he did not want the

murder to take place, at least not that night. Michel tells

Danzer that both he and his grandfather wanted to have an

alibi when the murder occurred. Danzer makes it obvious

A-45

—

that he still desires to see the grandfather and, one of his

reasons was that he needed to talk to him about the child

that the Harringtons might have. In that respect he says,

"That’s a concern. I want to talk to grandpa about that

too. I don’t know what to do about that. You know, I

don’t really, I don’t much want to do a kid." When Mi-

chel responded that he understood, Danzer said, "If it has

to be done, see that’s another complication, you know, I

don’t know, that’s something I need to talk about too."

Michel explained that his grandfather knew nothing more

about the child and stated rather plainly that his grandfa-

ther did not want to meet him. In response, Danzer said,

"Well that’s his shot, you know, I gotta feel sure of my-

self. Sounds like he’s the man. Sounds like he’s the one

that’s calling the shot to me. Sounds like you’re in the

middle."

"Chuck" tells Michei that, "I got a, got a friend com-

ing, you know, probably here now. Uh, you know, if you

want to go tonight we'll go. It’s that simple." Michel

replied that his grandpa didn’t like the idea of “going

tonight, Chuck, cause its so, its happened so fast." Dan-

zer then asked, "Does he wanna go with it or does he

wanna go?" Michel’s reply was that he did but that he

thought that someone should talk with David about it and

that he felt that he should be out of town when the murder

took place. After much pressing, Danzer finally said, "In

other words you still want’em whacked, you don’t want’-

em whacked tonight?" Michel responds, "Right", and

explains that he understands that Danzer might want to

leave the area. Danzer replies that that was true, and

points out that they said they wanted it [*520] done by the

8th and that he certainly couldn’t guarantee that it would

be if they didn’t go forward with the plan at that time.

Michel responded, "Oh, I understand. We, we don’t mean

A-46

to put you out Chuck, you know what I’m saying?" Mi-

chel later says, "I am trying to hold up my end of the

deal. There’s no breakdown on my part of it. You know

what I am saying. If my dad wants it done well then I’m

going to do everything possible to see that it gets ...".

Danzer replied: If you, uh, change your mind or if he

changes his mind about well makes up his mind, you

know, I don’t think he changed his mind at all, makes up

his mind, if grandpa makes up his mind what he wants

done, about the only thing I can tell you is, uh, uh, you’ll

have to go through uh, uh, Gary to get ahold of me.

The conversation seemed to end on that note, and they

left the Shoney’s premises and proceeded to their respec-

tive vehicles. As they departed Danzer said that Garrett

would know how to contact him. Michel said, "O.k.",

and they said their goodbyes. It appears that car doors can

actually be heard opening or closing but immediately

thereafter, Danzer calls out, "Mike." Pardue responded

and Danzer, who apparently was not willing to allow the

matter to end where it had been left, advised Pardue that

he would call him in about a week. Danzer said that he

had to go to New Jersey to see some people and would

call him when he got back.

As promised, on July 8, Danzer called Michel and

asked if he or his grandfather had talked with David and

whether the grandfather had gotten his alibi set. It is

obvious from the telephone conversation that Danzer was

not able to start the plan moving again, so the conversation

terminated much as the meeting at Shoney’s had by Danzer

telling Michel that he would contact him later.

There were no further contacts between Michel and

Danzer until September 16, 1990, and that conversation,

initiated by Danzer, occurred after Federal Bureau of

Investigation agents through activities described below,

A-47

breathed new life into the plan. In the meantime, Benton

County prosecutor, Clinger, had received, on July 11,

1990, another letter from Garrett asking that he be contact-

ed so that he could learn, "how its going with helping get

me out on early parole and back home with my family."

He said that he had put himself and his family in danger to

help the authorities and obviously expected something for

it. Shortly after July 11 (apparently according to Garrett

on July 14) David told Garrett that he did not want his

people to contact his family any more about anything

because "Chuck" was scaring them. It appears that noth-

ing further occurred until FBI agent, Dick O’Connell, on

July 31, 1990, wrote Garrett a letter received as govern-

ment’s Exhibit # 26. The letter was signed by "Chuck"

and after pleasantries said:

Tell Pardue I was ready to do the job that night. I

made 2 trips up there. I’m not the one who delayed

it. I’m ready to go. But I want to be sure I get paid.

Mike said he didn’t have the money and his granddad

wouldn’t meet with me or show me any money or tell

me he would pay. I know Pardue can’t pay me from

the pen so who’s going to pay and when. Tell Pardue

to write me.

He then gives his address as a post office box in

Poteau, Oklahoma. In a few days, the FBI agents received

a letter purportedly written by David Pardue and signed by

him and Gary Garrett received as government’s Exhibit #

27. The envelope indicated that the letter was postmarked

on August 6. In the letter, "Chuck" was told that the

delay was not David’s fault and that he had not seen the

money because, "my boy was leery of bring the money

before the job was done because this was not in the agree-

A-48

ment." He explains that the deal was that the remainder of

the money would be forwarded to a post office box after

the job was done and after he had been notified that it had

been done. He said, "No more money will be paid until

the job is done. The money will be payed to you. Have

mine and Gary word on it." The letter contains a post-

script signed by Garrett giving his word that, "Pardue is

good for the money. '

[*521] It appears from the evidence that little more

occurred in respect to the plan after the August 6 letter

from David except that Garrett continued to write prosecu-

tor, Ciinger, and state trooper, Bill Baskin, attempting to

keep the matter moving forward, obviously for his benefit.

He wrote letters attempting to accomplish this with post-

marks of August 20 (government’s Exhibit # 28) and two

letters postmarked September 17, one to Clinger (govern-

ment’s Exhibit # 29) and one to Baskin (government’s

Exhibit # 30). The August 20 letter is a good example of

the lengths to which Garrett had gone to attempt to urge

the government to m.ove forward and ensnare the Pardues

and his reasons for doing so, so it is reproduced as Exhibit

"A" to this opinion. In the September 17 letter to Clinger,

he goes a giant step further by claiming that, "He told me

the other day if I get out on some act he wants and expects

me to finish the job for him and then contact his son after

the job is done and pick up the rest of the money."

On September 10, 1990, more than two months after

the last contact that Danzer had with Michel Pardue, Agent

O’Connell and other police officers, along with Bob Har-

rington, staged the murder of Harrington and his wife.

Harrington played his own part and a policewoman played

the part of Mrs. Harrington. Government’s Exhibit # 31

consists of two color pictures of Harrington with silver

duct tape across his mouth and what appears to be blood

A-49

Leitner

running across his face and out of his ear from what ap-

pears to be a bullet wound immediately behind his right

ear. One of the photographs shows what appears to be a

woman lying behind Harrington. Her wrists are bound

with silver duct tape.

On September 16, 1990, Danzer called Michel Pardue

and in a telephone conversation in which he did almost all

of the talking advised Michel, "Real quick. I’ve been in

touch with your Dad. You talked to him?" After Michel

advised that he had seen him that day, Danzer said, "O.k.

Just told you, I got a letter from him. This thing is gonna

go down the 18th, late at night or early in the morning on

the 19th. You and your grandpa better get your alibis

set." Whereupon, Michel Pardue replied, "Wel! he never

said anything to me about it today."

After Michel tells Danzer that he does not want him to

call him at any other number, Danzer closes the conversa-

tion by saying, "All right, I won’t call you anywhere else

and I wanna show you some evidence it’s been done so

you can tell him." He then advises Michel Pardue that he

will call him on the 20th. True to his word, on September

20 Danzer called Michel Pardue and told him, "The deal’s

done. I’m worn out. Uh, I need to get some proof and I

need to, want you to look at and I need to get out of here.

I’l] be down at the Shoney’s at five o’clock tonight. The

same place we met." Michel replied, "O.k. Uh, well,

Chuck I was going to tell you that I didn’t want to meet

with you but I guess its too late now." Danzer then, in

effect, agreed that it was "too late" by saying, "Well, I

gotta show you this proof. I wanna get my money."

Michel Pardue and Gary Danzer met at Shoney’s in

Fayetteville at approximately 5:00 p.m. on September 20.

Danzer immediately, in the court’s view, attempts to draw

Michel out and get him to further incriminate himself and

A-50

his grandfather by immediately asking, "You got your alibi

set?" Michel replied, "Well, I'll just, uh, yeah." Danzer

then asked, "How about your grandpa?" Michel’s reply

was, "I just don’t like talking in here or anywhere else. I

just don’t like talking about it. The whole fucking deal

makes me pretty nervous, you know."

Danzer then again tells Pardue that he and his grand-

‘father had better get their alibis set and draws no response

from Pardue. He then shoves a Peoples Magazine with the

photographs of the staged murder taped in the center to

Michel and says, "You tell your Dad what you saw. If

your grandpa wants any evidence past that, he’ll have to

come look." After further discussion, Michel asks to see

the pictures again, and it appears from his comments that

he was trying to determine whether the photograph of the

woman was in fact that of Harrington’s wife. They then

discuss how [*522] the remainder of the amount owed to

"Chuck" was to be sent to him and it is obvious from the

recording that almost all the suggestions or directions in

this respect came from Danzer. In fact, as in past conver-

sations, Michel was allowed by Danzer to say very little,

and was often interrupted by Danzer when he tried to talk.

In any event, the conversation terminated with Michel

having received rather specific instructions on how the

money was to be sent to "Chuck" to a post office box

across the state line in Oklahoma. Danzer told Michel,

"You get that money in the mail at the latest Monday. I'll

be looking for it Tuesday." As directed, Michel Pardue

and his grandfather, Jack Pardue, gathered $4,500. It

appears that at least half of that amount came from the

grandfather’s funds. They wrapped the money in a pack-

age along with a Bible and mailed it from Westville, Okla-

‘soma, a small town a short distance across the state line.

The label on the box was addressed to "Chuck Ross" at

A-51

3 he

the post office box im Poteau, Oklahoma, where Danzer

had directed Michel to mail the package, and the return

address showed the sender to be "M. Pardue, General

Delivery, Westville, Oklahoma 74965."

Discussion

In almost ten years of doing this job this judge has not

been faced with a case as troubling as this one or one that

has caused this court as much concern, worry, and con-

flicting thoughts and emotions. On the one hand the court

has in its very hands the future of a young twenty-year-old

University of Arkansas student, Michel, ard his 72-year-

old grandfather. On the other side of the coin, the court

must consider and protect the right of the citizenry to be

free from the threat of dastardly criminal acts such as

those planned in this instance.

For the reasons discussed below, the court has a great

deal of concern about whether Michel and his grandfather

really planned any of the matters that took place or wheth-

er they were, instead, pulled along into this criminal act by

the authorities much as someone is caught in a violent

undertow at sea.

The court initially recognizes, as juries are often told,

that emotions cannot play a part in legal proceedings, and

the court has attempted to guard against letting the plight

of Michel unduly affect the court’s decision on the matter

before it, but the court cannot escape the obvious which is

that Michel is now a twenty-one-year-old University of

A-52

Arkansas student,’ and at least as far as the evidence

shows, has no prior criminal record. Unfortunately, it has

become obvious over the years that time served by young

people in the penitentiary almost invariably teaches them

nothing except how to become better criminals.

Also troubling to the court in this case is that, while it

recognizes that law enforcement personnel must be free to

vigorously and, indeed, creatively pursue criminals en-

gaged in criminal activity, they must not be allowed to

make crime or make criminals out of otherwise innocent

citizens. Unlike large metropolitan areas, it is inevitable

that the judges of the Western District of Arkansas will

know and, in fact, become friends of law enforcement

officers, including personnel in the U.S. Attorney’s office,

and this court’s relationship in that respect is no exception.

This judge is well-acquainted with many of the local au-

thorities involved in this matter and, in fact, considers

several of them to be personal friends. The court has no

doubt about the integrity of these individuals and their

good faith in pursuing the objectives pursued in this case,

but, for the reasons discussed below, believes that, in their

zeal to do their job of attempting to maintain law and

order in this society, they stepped over the bounds of what

is permissible and, at least as far as Michel Pardue and

Jack Pardue are concerned, they made criminals out of

them when they might otherwise not have become crimi-

nals.

2 The evidence indicates that Miche! enrolled in the agricul-

ture school at the University of Arkansas in September of 1990

before he was indicted and apparently before he had knowledge

that he might be arrested for the occurrences that resulted in the

indictment.

A-53

[*523] This court and its staff and supporting person-

nel and, indeed, law enforcement officials including staff

members of the U.S. Attorney’s office must never forget

that, even though the court community is closeknit in this

relatively rural area, this court is not and cannot become

part of the prosecutorial arm of the system. Instead, it is a

part of a separate and independent branch of government.

One of its important functions is to stand between the

-"gevernment" and the "governed" to insure that the rights

of the citizens are protected in the adversarial atmosphere

of criminal prosecutions. The system simply cannot allow

the investigatory and prosecutorial part of the system to

cross the line and make crime or criminals, and this court

believes that any doubt in respect to whether that has

occurred should be resolved in favor of the accused. As

Voltaire said almost 250 years ago: "It is better to risk

Saving a guilty person than to condemn an innocent one."

Voltaire, Zadig [1747], Ch. 6. As Sir William Black-

stone’ put it, "It is better that ten guilty persons escape

than one innocent person suffer." W. Blackstone, Com-

mentaries [1765-1769], Introduction.

While this court has little doubt but that Agent Gary

Danzer in his dealings with Michel Pardue stepped far

over the line delineating the border which this court be-

lieves to be proper, and while the court has a great deal of

doubt that Michel Pardue and his grandfather would ever

* Blackstone is, in the law at least, immortal. About him it

was said: "He it was that first gave the law the air of science.

He found it a skeleton, and clothed it with life, color and com-

plexion; he embraced the cold statute, and by his touch it grew

into youth, health, and beauty." B. Yelberton, Lord Avonmore

[1736-1805] On Blackstone.

A-54

have become involved in this dastardly sequence of events

without being dragged into it by Danzer, the court readily

recognizes that there is a much closer question in respect

to whether this court can, under the law, do anything

about it. That is one of the aspects of this case that has

been most troubling to the court. While the court is con-

vinced that Michel Pardue should probably not go to jail

and have his life forevermore ruined by what occurred or

didn’t occur in this case, the court recognizes that the

entrapment issue was submitted to a jury and that the jury,

after considering the evidence and considering proper

instructions, including instructions on his entrapment de-

fense, returned a verdict against all of the defendants. The

court cannot substitute its judgment for that of the jury on

the question of whether the defendants were entrapped.‘

The applicable standard is properly set forth in C. Wright,

Federal Practice & Procedure: Criminal 2d, § 467 at p.

658 (1982), quoting from Curley v. United States, 160

F.2d 229 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct.

1511, 91 L.Ed. 1850 (1947), as follows:

If the evidence is such that reasonable jurymen must

necessarily have such a doubt, the judge must require

acquittal, because no other result is permissible within

the fixed bounds of jury consideration. But if a rea-

sonable mind might fairly have a reasonable doubt or

*As to the outrageous conduct defense, the law appears to be

that a determination of whether the conduct of the government

agents during the investigation was so outrageous as to deprive

the defendants of due process-of law is a question of lfW to be

determined by the court. U.S. v. Simpson, 813 F.2d 1462 (9th

Cir. 1987).

A-55

might fairly not have one, the case is for the jury, and

the decision is for jurors to make....

The true rule, therefore, is that a trial judge, in pass-

ing upon a motion for directed verdict of acquittal, must

determine whether upon the evidence, giving full- pay to

the right of the jury to determine credibility, weigh the

evidence, and draw justifiable inferences of fact, a reason-

able mind might fairly conclude guilt beyond a reasonable

doubt. If he concludes that upon the evidence there must

be such a doubt in a reasonable mind, he must grant the

motion; or, to state it another way, if there is no evidence

upon which a reasonable mind might fairly conclude guilt

beyond a reasonable doubt, the motion must be granted. If

he concludes that either of the two results, a reasonable

doubt or no reasonable [*524] doubt, is fairly possible, he

must let the jury decide the matter.

Thus, this court cannot and does not desire to place

itself above the jury and to disregard the jury verdict

simply because it believes that the verdict was wrong.

However, the system was designed by our ancestors so

that judges, trained in the law, could properly consider

whether reasonable minds could have found facts sufficient

when combined with the law given by the court to find that

the defendants are guilty beyond a reasonable doubt. The

court’s role in this respect given by Rule 29 is particularly

important in this court’s view in a case such as this one

where the jury is asked to apply very technical entrapment

standards. Fed.R.Crim.P. 29. One does not have to be

an exceptionally scholarly lawyer to know that those con-

cepts have given every court in the land, including the

United States Supreme Court, considerable trouble in

attempting to delineate the proper boundaries across which

- zealous law enforcement officers may not cross in pursuing

A-56

citizens believed to have a criminal bent.

Both during the trial and in their motions, each of the

defendants have asked that the court dismiss the matter or

enter a judgment of acquittal because the conduct of the

police officers in this case constituted, as a matter of law,

entrapment, or they were denied due process because of

the outrageous conduct of such officials. In the court’s

view, these defenses, raise exceptionally close questions,

especially when viewed in the context of this court’s role

in ruling on Rule 29 motions.

(a) Entrapment Defense

As has already been indicated, the entrapment defense

in this country has been the subject of much debate and

many conflicting court decisions. This court would not be

able to better describe the defense and the elements of it

chan was done by Judge Floyd R. Gibson, Senior Circuit

Judge, in the case of United States v. Lard, 734 F.2d 1290

(8th Cir. 1984), so the court will take the liberty of quoting

at length from that opinion. Judge Gibson wrote: -

"The entrapment defense is based on the assumption

that Congress did not intend to punish a defendant

who had committed all the elements of a prescribed

offense upon the inducement or instigation of govern-

ment agents." United States v. Russell, 411 U.S. 423,

435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973);

Sherman v. United States, 356 U.S. 369, 372, 78

S.Ct. 819, 820, 2 L.Ed.2d 848 (1958): Sorrells v.

United States, 287 U.S. 435, 441, 452, 53 S.Ct. 210,

212, 216, 77 L.Ed. 413 (1932).

A-57

However, the entrapment defense has no applica-

tion where the government agents merely use stealth,

Strategy, or deception to trap an ‘unwary criminal’ or

merely provide the defendant with an opportunity or

facility to commit the crime. Sherman, 356 U.S. at

372, 78 S.Ct. at 821; Sorrells, 287 U.S. at 441, 53

S.Ct. at 212. Rather, ‘[i]t is only when the Govern-

ment deception actually implants the criminal design

in the mind of the defendant that the defense of en-

trapment comes into play.’ United States v. Russell,

411 U.S. 423, 436, 93 S.Ct. [1637] 1643, 1645 [36

L.Ed.2d 366] (1973); Hampton v. United States, 425

U.S. 484, 489, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113

(1976); Sorrells, 287 U.S. at 442, 53 S.Ct. at 212.

As the court stated in Sherman: ‘Entrapment occurs

only when the criminal conduct was "the product of

the creative activity" of law enforcement officials....

To determine whether entrapment has been estab-

lished, a line must be drawn between the trap for the

unwary innocent and the trap for the unwary crimi-

nal.” Jd., 356 U.S. at 372, 78 S.Ct. at 821, quoting

Sorrells, 287 U.S. at 441, 451, 53 S.Ct. at 212, 216.

Lard, 734 F.2d at 1292-93. See also United States v.

Shaw, 570 F.2d 770 (8th Cir. 1978).

In Lard the court, in applying that standard, in words

particularly appropriate to this case said:

Determining a defendant’s predisposition requires

examination of the defendant’s personal background to

see "where he [*525] sits on the continuum between

the naive first offender and the streetwise habitue.’

United States v. Townsend, 555 F.2d 152, 155 n. 3

(7th Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277,

A-58

54 L.Ed.2d 184 (1977). It also requires considering

the extent to which the government agent has endeav-

ored to instigate, importune, or induce the commission

of the criminal act. J/d.; United States v. Borum, 584

F.2d [424] at 427 [D.C.Cir.1978]; United States v.

Watson, 489 F.2d 504, 511 (3rd Cir.1973).

Lard, 734 F.2d at 1293.

In Lard, after correctly setting forth the applicable

law, the court found that the facts of that particular case

showed that the defendant in that case was entrapped and

that reasonable minds could not conclude otherwise. The

defendants’ conviction was reversed.

In this case, the court has little doubt that reasonable

persons viewing the evidence could conclude that Michel

Pardue and his grandfather, after having once become

involved in this matter at the instigation of, and with the

planning and direction of Gary Danzer, knew what they

were doing and took substantial steps to carry out the plan.

However, that does not answer the question of whether

they were "entrapped" and what occurred is a good exam-

ple of why trial courts, where an entrapment defense is

used, should carefully view the evidence in combination

with the law and determine whether the facts that the jury

had a perfect right to find justify a conviction when the

complex and difficult to understand law of entrapment is

applied to those facts.

As the court said in Lard, in making that determina-

tion this court should determine where Michel Pardue "sits

on the continuum between the naive first offender and the

streetwise habitue." While this court in this closeknit legal

community has heard "rumors" that law enforcement

officials know more about the Pardues’ past than this court

knows, it goes without saying that this court must decide

A-59

these motion on the evidence that it has before it. Often,

law enforcement peoplé have knowledge that the court and

jury do not have because what they know is not admissible

in a court of law often because, under the rules that have

been developed over more than two centuries, it is be-

lieved that it is not reliable enough to be considered in

determining the guilt or innocence of a citizen accused of a

crime.

In respect to Michel Pardue, what this court knows is

that when the events which are the subject matter of the

indictment occurred, he was a twenty-year-old University

of Arkansas student--a mere boy--with no prior criminal

record or criminal activities. He was pitted against Gary

Garrett, a career criminal whose only desire was to please

the authorities and to entrap someone so that he could go

free, and Gary Danzer, an FBI agent for over 21 years,

who had frequently during his career posed as an under-

cover agent and, in fact, a hitman, willing to do anything

for money.

The court recognizes that, as prosecuting attorneys

invariably tell juries during closing arguments, they cannot

be expected to deal with "choirboys" in matters such as

these, and the court does not condemn them for using

people like Garrett when that is necessary. However, the

court believes that the law enforcement officials in this

case should have recognized what they were dealing with

and should not have allowed Garrett to play as significant

a role in the planning of the activities that occurred in this

matter as he appears to have played. One only needs to

read the numerous letters that he wrote prosecuting attor-

ney, Clinger, to see what the court means in this respect.

It was obvious, or should have been obvious, that Garrett

was only interested in doing whatever was necessary to get

the autliorities to help him, and that he was willing to say

A-60

or do anything necessary to accomplish that.

It appears that he very quickly gained the confidence

of David Pardue, also a career criminal, and someone whe

was certainly not above using whomever he could, includ-

ing his son and father, to accomplish his purpose.

In any event, after gaining Pardue’s confidence, Gar-

rett immediately [*526] began to "worm" his way into the

system to utilize it for his benefit. It appears from the

letters that he very early obtained from David Pardue, in

writing, a description of exactly what he wanted done, and

the address of the Harringtons in Gentry written on a map

of Arkansas, showing where Gentry could be located

(government’s Exhibit # 2). Additionally, Garrett obtained

a rather good photocopy of a photograph of Harrington

(government’s Exhibit # 3) and he then began to write

prosecutor Clinger numerous letters attempting to accom-

plish what he wanted accomplished--to be set free. It is

obvious from the series of letters summarized above and

introduced into evidence that Garrett played an important

part in the planning of the activities that the authorities

carried out in respect to this matter.

At some point, he gave the authorities the note, the

address, the map, and the photocopy of the photographs

discussed above. The court believes that that should have

been enough for the authorities to have moved forward in

the investigation of David Pardue, and, in fact to obtain

sufficient evidence to convict him if that had been their

desire. Apparently it was not their desire, or at least it

was not their total desire. Perhaps that was because he

was already in prison.

It also appears that Gary Garrett, the streetwise crimi-

nal, knew, that in order to accomplish what he desired, it

might not be sufficient for him to simply hand the authori-

ties David Pardue. In his first letter to prosecutor, Cling-

A-61

er, postmarked April 30, 1990, he says: "I have certain

information and can get you enough evidence to convict

David Pardue and some family members of a certain con-

spiracy charge." {emphasis supplied). There is no evi-

dence in the record that indicates that, prior to that time,

David Pardue had sought to involve any of his family

members in his plot and the materials collected by Garrett

and turned over to the authorities (government’s Exhibits #

1, # 2, and # 3) do not indicate that they were to be in any

way involved. Then, shortly before the July 1, 1990,

meeting at Cummins Prison between Danzer and David

and Michel Pardue, Garrett, in his letter ti) Clinger post-

marked June 28, 1990, as a result of his burning desire to

help the authorities, advised Clinger that, "I might have

come up with a way for your man to meet with the people

you want him to meet." That letter was received by

Clinger on June 29, and the court finds it significant that

on July 1 Danzer had his meeting in the Varner Unit,

apparently after it had been arranged by Garrett.

It is also obvious from a mere reading of the numer-

ous letters which Garrett wrote that, about every time

there was a lull in the proceedings, he would write a letter

and say something in that letter that was designed to

breathe new life into the investigation and cause the au-

thorities to again move forward in an investigation that

appears to have stalled or at least hesitated.

Then "Chuck Ross", Garrett’s "cousin," and the cold-

blooded hitman, appeared on the scene only two days after

Garrett had advised Clinger that he could arrange for

authorities to "meet with the people you want him to

meet." It is obvious from Gary Danzer’s testimony that he

had a preconceived notion, mission and plan in respect to

those meetings. At the start of his testimony he was asked

by the U.S. Attorney: "What were you to do?" His

A-62

response was: "I was to meet with David Pardue and

Michel Pardue at a prison in Cummins, Arkansas." He

was not to meet with just David Pardue even though ev-

erything that they should have had at that point indicated

that David is the one that wanted the murder done, and

government’s Exhibit’s # 1, # 2, and # 3 presumably in

his possession should have been enough to continue the

endeavor, if that had been his desire, without implicating

Michel Pardue and his grandfather. The authorities obvi-

ously wanted to implicate those individuals at that point

and were not satisfied with a conviction of David Pardue

only who, after all, was already in prison.

What occurred at the meeting between Danzer, David

and Michel gives the court the most concern. It is, in

fact, the evidence {*527] that causes this court to believe

that Michel Pardue was entrapped into doing a series of

criminal acts that he would not have otherwise done and

which he had no intent to do prior to this meeting. It is

this evidence which causes the court to believe and find

that, when the law is properly applied to these facts, rea-

sonable minds could not find otherwise.

Gary Danzer played his role well, so well, that the

court believes that he exceeded the bounds of permissible

police conduct. David Pardue, a career criminal with

considerable experience, believed after the meeting that he

was a cold-blooded killer willing to do anything for mon-

ey. Playing that role to the hilt, according to his testimo-

ny, he told David that he might be able to help him with

his problem and David told him that he wanted two people

killed and, it appears from his testimony that David gave

him a considerable amount of detail in respect to this

endeavor. There is no indication whatsoever that Micheli,

although he was present, was to be in any way involved in

the desired murders. Danzer did not indicate that Michel’s

A-63

name was even mentioned while he was talking with David

about the murders.

In spite of that, and perhaps because of it, Danzer told

David that he did not want to talk about it in the prison

and, in effect, said to David and Michel that he would

leave while they conspired together to kill the Harringtons

and then invited Michel to come out and tell him about the

conspiracy. By his actions, words, and conduct, he, in

effect, said to this twenty-year-old young man: "Michel,

conspire with your dad to kill the Harringtons, then come

out to the parking lot and tell me about it."

There is no indication whatsoever that, prior to that

time, Michel had planned to take any action in respect to it

and, if he had committed any criminal act in merely know-

ing about it, it was certainly not the criminal acts with

which he was charged and later convicted.

In any event, at Danzer’s invitation and direction, it

appears that David and Michel did discuss the murder of

the Harringtons and in the court’s view, because of that

invitation and direction, Michel was recruited to help carry

out the endeavor. Undoubtedly out of blind, misplaced,

and undeserved loyalty to his father, he agreed to become

involved, and did become involved. However, the court

believes that his agreement to become involved was not

only at the invitation and direction of Danzer but before

that time Michel had no criminal design or intent in re-

spect to the matters that transpired. Danzer implanted into

the mind of Michel the criminal intent, and the cases cited

above hold that when that occurs the defendant has been

entrapped and may not be convicted of a crime because of

the acts that subsequently occurred.

As indicated above, Danzer carefully tape recorded all

conversations that he had with Michel Pardue except the

most important one which was the meeting in Cummins.

A-64

He did not tape that conversation, he says, because the

tape recorder did not work properly. All other meetings

between Michel and Danzer were recorded, and anyone

listening to those recordings would have to conclude that,

from that point forward, Michel did no directing and

planning of the endeavor. Instead, all plans and directions

came from Danzer. In fact, as the court has already point-

ed out, during those meetings Danzer would rarely allow

Michel to complete a thought before he was interrupted.

The facts set forth above describing the tape record-

ings and certainly the tape recordings themselves show that

Danzer tried in almost every one of the conversations to

make certain that he had also ensnared Jack Pardue, the

grandfather, into the trap. He repeatedly said things or

asked things that were intended to do that and tried valiant-

ly, to no avail, to get the grandfather to meet with him,

undoubtedly, so that he could cinch the case against Jack.

More than once he said things to Michel about Jack Pardue

such as, "Sounds like he’s the man. Sounds like he’s the

one that’s calling the shots to me. Sounds like you’re in

the middle." (9:30 p.m. meeting at Shoney’s on July 2,

1990).

It is apparent from the recorded conversations that

frequently when it appears [*528] that Michel showed

doubt about the murder plans, Danzer would make state-

ments that were designed to be threatening to this twenty-

year-old boy. When doubts were expressed, "Chuck"

would say things that had to have been intended to strike

fear into the heart of this twenty-year-old boy with whom

he was dealing. He would explain that he had an associate

on his way or already in Arkansas to help him commit the

murders and indicated that this associate would be made if

he wasn’t paid. In the July 2, 1990, phone call after

Michel advised him that both he and his grandfather

A-65

thought it was "happening too fast", Danzer told Michel,

that if his "help" was not paid "they're gonna want to kill

me about the time I don’t be able to come across with" the

money.

In this same vein, at the close of the Shoney's meeting

on July 2, 1990, when the deal, at least for that moment,

had been called off, he, in pe court’s view, designedly

told Michel that he was leaving the area because, "I got

some people up in New Jersey that I want to see." That

Statement could have had no

other intent but to convey to young Michel that he should

be fearful of this criminal hitman.

It is significant that he did not tell Michel that he was

going to North Dakota or Nebraska to see some people or

some other location that had not been in the news in recent

years with mafia type criminal activity and highly publi-

cized organized crime trials.

What transpired during a meeting between Michel

Pardue and Gary Danzer on July 2, 1990, at Shoney’s in

Fayetteville, and the course that this matter took after that

meeting is especially troubling to the court and the court

submits should be troubling to anyone who is concerned

that only guilty people are convicted of crimes. That

meeting was arranged by Danzer for the purpose of meet-

ing "grandpa" ostensibly for the purpose of having Jack

Pardue show him the money so that he would know it was

available. Obviously, this was another attempt by Danzer

to make certain that grandpa was also in his trap. Jack

Pardue did not attend the meeting, and it is obvious from

the tape recording of the meeting that Pardue quickly made

it known that neither he nor his grandfather were comfort-

able with the matter going forward immediately as he was

led to believe Danzer desired it to be. Danzer insisted that

he understood that the killing was to take place by the 8th

A-66

ot July.

Michel first told Danzer that neither he nor his grand-

father were happy with their alibis and were not ready for

the murders to take place. Danzer implored him to go

forward and said things like, "I don’t know how much

better alibi you think you need other than maybe you're

out of town." When Danzer insisted, Michel agreed to

check with his grandfather who was apparently in the

parking lot of the shopping mall area near Shoney’s. He

appeared to have left the meeting and, presumably after

consulting with his grandfather, returned to advise that his

grandfather would not agree to meet with Danzer. It was

then that Michel told Danzer that the matter was moving

too fast for both him and his grandfather and that they did

not want the murders to take place, at least not immedi-

ately, as Danzer seemed to insist. It was near the close of

that meeting that Michel was threatened with the hitman

who Danzer had coming over who might want to kill

Danzer and, inferentially at least, Michel.

Near the end of the conversation, it seemed to be

understood that the murders would not take place in the

near future and it was understood that Danzer would go

wherever he intended to go. He made certain that Michel

understood that he might not be available when they want-

ed him and that they would have to try to get in touch with

him through Gary Garrett. Danzer made it clear that he

might not be able to come when they wanted him. Michel

agreed that that was acceptable and they said their good-

byes and apparently went to their vehicles located in the

Shoney’s parking lot. As they are at or in their separate

vehicles preparing to leave the area, Danzer, apparently

unwilling to allow Michel and his grandfather to wiggle

free from the net, called Michel and advised him that he

would call him in about a week. It was after that state-

A-67

ment was [*529] made that Danzer used the "going to New

Jersey" threat described above.

As promised, Danzer called Michel on July 8 and

tried to breathe new life into the venture. By questions

asked, Danzer obviously tried to encourage Pardue to talk

with his father about the venture and Pardue seemed to

agree that either he or his grandfather would attempt to do

so. Again, however, it is obvious that Michel was not

pushing for the deed to be carried out and things were left

pretty much as they had been at the close of the July 2

meeting.

The court finds what occurred after the July 2 meeting

and the July 8 telephone conversation in respect to Michel

Pardue and his grandfather to be particularly abhorrent.

Anyone engaged in those conversations or listening to the

tape of them must conclude that it is obvious that Michel

and his grandfather were at the very least having second

thoughts about the venture and certainly did not want it to

go forward, at least not then. The evidence shows that

nothing occurred in respect to Michel being involved in the

plan between those dates and September 16, 1990, and

Michel had no input into what occurred then and no appar-

ent knowledge of what was occurring. The authorities,

obviously with knowledge that the matter had stalled,

wrote a letter to Garrett on July 31, 1991 (government’s

Exhibit # 26) in an obvious attempt to breathe new life

into the plan that was at least near death.

From the evidence, it appears that the only thing that

occurred between July 8 and the letter written by the au-

thorities on July 31 which might have prompted that action

by the government is a letter from the government’s paid

or at least rewarded agent, Garrett, received by prosecutor

Clinger va July 11, imploring the government to do what

he apparently believed they had promised to do for him

A-68

and advising them that he had put himself and his family

in danger because of his cooperation.

The July 31, letter written by the authorities was

purportedly from "Chuck" and on August 6, 1991,

"Chuck" received an envelope with a return address for

Gary Garrett (government’s Exhibit # 27) containing a

letter which was purportedly signed by both Garrett and

David Pardue. David Pardue disputed that he had signed

the letter, but that was certainly a question for the jury. In

any event, because of what transpired afterwards, the court

finds that that letter is a significant piece of evidence to be

considered by the court in ruling on these motions, and

because of its importance, the court is attaching a copy of

it as Exhibit "B" to this opinion.

The court believes that it is obvious from a mere

reading of this letter that all that it purports to do is to

reply to the July 31 letter written by the government to

Garrett. It merely sets forth what Pardue (if he wrote it)

claims the deal was and does not, in any manner urge that

the deed immediately be done or that it be done at all. It

merely says that the deal was that "Chuck" would be paid

when the murders were committed.

In spite of that, Gary Garrett wrote three more letters

received August 22, and September 19, in which he makes

claims about how Pardue is bugging him about the mur-

ders not having been committed as agreed and he advises

the authorities that Pardue is insisting that others will be

contacted to commit the murders or that he will expect

Garrett to commit them if "Chuck" does not do so.

Of course the court has no way of knowing what

motivated government agents in doing what occurred

starting on September 16, but it is certainly possible and

perhaps probable that these claims by Garrett caused the

agents to act as they did. They must have believed, if they

A-69

took Garrett's letters at face value, that they must act to

stop the imminent murders of the Harringtons. Garrett's

letters were certainly intended to convey that impression.

The letter that they received, purportedly from David

Pardue, did not convey that same sense of urgency. It

appears that the desire that the murders take place by July

8 or 9 had been prompted by a scheduled trial of David on

the Benton County perjury charges in which Harrington

was [*530] expected to testify. By the time in early Au-

gust when David's letter to "Chuck" was written the ur-

gency of committing the murders, and perhaps some of the

need for them had passed because, on July 10, David Par-

due had pled guilty to the perjury charges and had been

sentenced to an additional seven years in prison.

In any event, for whatever reason, and without any

input from or knowledge of Michel Pardue, he received a

call from "Chuck" out of the clear blue on September 16,

1990, almost two and one-half months after Pardue had

last heard from Danzer when it was made known that

neither Michel or his grandfather were ready for the mur-

ders to take place. This call was made even though the

authorities knew at that point that David Pardue had direct-

ed them, through Garrett, not to contact his family about

anything. Danzer spoke with a sense of urgency and

advised Michel that he had been in contact with Michel’s

father and that "this thing is going to go down the 18th,

late at night, or early in the morning of the 19th. You and

your grandpa better get your alibis set." When he asked

Michel whether he had seen his father, Michel replied that

he had seen him that very day and that his father had said

nothing to him about the murders. He told Michel that

David Pardue was pushing him and that he was going to

do the murders as David insisted. Michel was not given a |

chance to express any of his thoughts or to either accept or

A-70

ee

decline to be involved further. Danzer ended the conver-

sation by simply telling him that he would contact Michel,

probably on the 20th.

Then, at 6:30 a.m. on the 20th Danzer called Michel

and, in a very short conversation, in effect directed that

Michel meet him at Shoney’s that night. Pertinent por-

tions of that tape recorded telephone conversations are set

forth in the "facts" section of this opinion. As indicated,

Michel told "Chuck" that he had not intended to meet with

him, "but I guess its too late now", obviously meaning that

now that the Harringtons had been killed, he had no choice

but to complete the transaction.

They met at Shoney’s that night and that conversation

is also described above. After that meeting, Michel and

his grandfather visited David in the prison and reported to

him what Michel had seen. The remaining portion of the

money owed the "hitman" was then mailed as described

above, and Michel and Jack Pardue were subsequently

indicted, arrested and convicted.

Based on the above facts which are largely uncontro-

verted, the court is convinced that FBI Agent Gary Danzer

and the government’s agent, Gary Garrett, working togeth-

er, by deception and improper conduct implanted the

criminal design and intent in the otherwise innocent mind

of this young man. That occurred at the time of and im-

mediately after the meeting at the Varner Unit and. since

that is true, as a matter of law it makes no difference

whether Michel later willingly or unwillingly assisted the

plan to go forward. It appears that it is probable that,

after Danzer recruited and enlisted him into the plan,

Michel, out of blind, misplaced and undeserved loyalty to

his father, did some things and made some statements that

indicate his guilt. The court believes that it is probable

that it was those matters that caused this lay jury, un-

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trained in the law, to reach the verdict that it did, and

believes that it is expecting too much to expect a lay jury

to recognize that the entrapment defense requires determi-

nation to be made about whether the subsequent activities

of the accused took place because the individual was pre-

disposed to commit the crime or because the idea for the

crime was improperly planted in his mind. The court

finds, as a matter of law, that, when the law is properly

applied to the uncontested facts, Michel Pardue was en-

trapped as that defense is described in the law, and that

reasonable minds could not conclude otherwise.

The evidence shows that Jack Pardue did not partici-

pate in any of this plan except to aid his entrapped grand-

son in carrying out what had been largely directed by Gary

Danzer. There is also no indication from the evidence that

there was [*531] any intent for Jack Pardue to become

involved until Gary Danzer set out to make him become

involved through the various artifices employed by him

described above. In short, if Jack Pardue had any intent to

commit the crimes for which he was convicted, that intent

was also placed in his mind by the actions of Danzer

utilizing Michel. Thus, the court finds that Jack Pardue

was also entrapped as a matter of law.

It is an entirely different story as to David Pardue.

As the court has already indicated, the record reflects that

he, unlike his father and son, was an experienced career

criminal, knowledgeable about the ways of crime. Long

before Gary Danzer appeared on the scene, he had dis-

cussed the possible murder of the Harringtons with at least

four other people, and there is no evidence to support his

contention that he was similarly entrapped.

(b) Outrageous Conduct

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The Lard case also discusses to some extent the de-

fense of outrageous conduct and found that the conduct of

the agents in that case at least bordered on conduct "so

outrageous that due process principles should bar the gov-

ernment from invoking judicial processes to obtain a con-

viction." Lard, supra, citing United States v. Russell, 411

U.S. 423, 431, 93 S.Ct. 1637, 1642, 36 L.Ed.2d 366

(1973).° This possible defense first saw the light of day

in dictum in an opinion written by Justice Rehnquist in

United States v. Russell, 411 U.S. 423, 431, 93 S.Ct.

1637, 1642, 36 L.Ed.2d 366 (1973). The cases cited in

footnote 5 below have placed flesh on the bones of an

outrageous conduct defense suggested by this dictum and

generally hold that the defense may apply where the con-

duct of law enforcement officers is "so grossly shocking

and so outrageous as to violate the universal sense of

justice." United States v. Ryan, 548 F.2d 782, 789 (9th

Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52

L.Ed.2d 356 (1977). Later, in Hampton v. United States,

* For other cases discussing the "outrageous conduct" de-

fense or reversing convictions for similar improper conduct of

government agents, see Hampton v. United States, 425 U.S.

484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v.

Williams, 791 F.2d 1383 (9th Cir.1986); United States v. Bo-

gart, 783 F.2d 1428 (9th Cir.1986), vacated, 790 F.2d 802 (9th

Cir. 1986); United States v. Twigg, 588 F.2d 373 (3rd Cir.

1978); United States v. West, 511 F.2d 1083 (3rd Cir.1975);

Greene v. United States, 454 F.2d 783 (9th Cir.1971); United

States v. Gardner, 658 F.Supp. 1573 (W.D.Pa.1987); United

States v. Batres-Santolino, 521 F.Supp. 744 (N.D.Cal.1981);

United States v. Valdovinois-Valdovinois, 588 F.Supp. 551

(N.D.Cal.1984), rev'd on other grounds, 743 F.2d 1436 (9th

Cir. 1984).

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425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), five

members of the Supreme Court suggested in concurring

and dissenting opinions that convictions resulting from

such outrageous conduct might be vacated by use of the

court’s supervisory powers.

Irrespective of which method is used by the court to

right a wrong caused by such improper conduct on the part

of law enforcement officers, the court is not bound, when

considering a Rule 29 motion, by the same strictures as in

considering an entrapment defense. In deciding to vacate

a conviction on due process grounds or by utilizing the

court’s supervisory powers, the court is deciding a ques-

tion of law which was not and could not have been submit-

ted to the jury.°

This court recognizes that the war on crime which Its

being waged in this country is an important one with high

stakes, but every person concerned with freedom and

justice should recognize that, as in most wars, innocent

persons are sometimes irreparably harmed. The fact is

that no murder took place in this case and the court has a

great deal of doubt that one ever would have even if the

government agents, including Gary Garrett, had not be-

come involved. It is likely, as some of the witnesses

testified, that prisoners usually believe they want to do

harm to [*532] whomever they believe put them there.

° Interestingly, the standard of review may be drastically

different. In footnote 2 of United States v. Simpson, supra at

1465, the court said that the reviewing court should consider the

action of the trial court where the due process defense was uti-

lized de novo, but that action taken by the trial court using its

supervisory powers should be reviewed using the “abuse of dis-

cretion" standard.

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Like small boys trying to be tough, they talk about doing

that. That may be all that occurred in this case, and it

might very well be that it would have gone no further than

that had Gary Garrett not seized upon the opportunity to

attempt to gain his freedom by handing the Pardues to the

authorities on a silver platter. Unquestionably, in this

court’s view, the acts of this paid, rewarded, or at least

expected to be rewarded government agent, in conjunction

with the overzealous activities and conduct of Gary Danzer

described above, was outrageous conduct when considered

as a whole, which deprived Michel Pardue and Jack Par-

due of due process guaranteed to them by our Constitution.

The court believes that anyone who listens to all of the

tape recorded contacts that Danzer had with Michel Pardue

would find themselves compelled to believe that it was

simply not fair and, in fact, outrageous conduct for this

experienced FBI agent, posing as a dangerous killer, to

plan and direct, as he obviously did, the illegal activities

which Michel Pardue found himself caught up in after

becoming involved when he was recruited at the July Ist

Varner Unit visit, and for him to threaten Michel Pardue

when it appeared that he might be wavering or faltering in

moving toward the goal established for him.

The September 16 telephone call and the meeting on

September 20 were planned and carried out by the authori-

ties after Michel had made it clear in the July 2 meeting

that both he and his grandfather were at least having sec-

ond thoughts about the murders and didn’t want them

committed, at least not then, and after Garrett had been

told that "his people" were not to contact Michel or his

grandfather again. In spite of that, the murders were

faked two months after the July 2 meeting and the Septem-

ber 16 telephone call and the September 20 meeting were

arranged for, planned and dictated by Danzer two and one

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half months after he had last had any contact with Michel.

Anyone listening to the tape recordings made by Danzer

on those two occasions would be compelled to recognize

that Danzer made certain that Michel had no chance to

have any voice or input in the plan. Michel was told, in

no uncertain terms, to listen and do as he was told. On

September 16 he was told that the murders would take

place on the 18th or the 19th and that Danzer would call

him so they could meet for Michel to be shown the evi-

dence. Then on the 20th he was shown the pictures and

told to get and mail to "Chuck" at an address in Oklahoma

the balance of the contract price.

Thus, Michel and Jack Pardue were placed in the

position, they must have believed, of either paying the

money for the murders that had already been committed by

Chuck and his help, or face the wrath of this man with

friends in New Jersey who was willing to kill a man and

woman, and perhaps a small child, for $4500 and who

made his living killing people for money. That is not fair.

That is not right. That is outrageous. The court believes

that fairness and justice demands that this wrong be righted

and the court finds that the improper conduct of law en-

forcement officers and their agents deprived Michel and

Jack Pardue of due process of law guaranteed by the Con-

stitution. The court also believes that justice demands that

the court use its inherent supervisory power to remedy this

injustice, and the court will vacate the convictions of

Michel and Jack on that additional ground.

Conclusion

For the reasons set forth above, the court finds that

the motions for judgment of acquittal filed in behalf of

Michel Pardue and Jack Pardue should be granted and that

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a judgment of acquittal should be entered in their favor on

all charges for which they were convicted.

As to David Pardue, there was ample evidence for the

jury to have found as it did in respect to this defendant

who not only clearly set out to solicit the murders of the

Harringtons, but who inexplicably and despicably allowed

his twenty-year-old son and his seventy-two year old father

to become involved in the crime. Whether David Pardue,

without the aid of the government agents, would have ever

been [*533] able to complete the crime that he set in mo-

tion is not important. There is jittle question that he did

and intended to do what the jury found him guilty of doing

so his motion for judgment of acquittal will be denied.

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