# Appendix — Pardue v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 925

## Text

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 carryi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0906%3A2. Public record. Not legal advice.