Appeal from the United States District Court for the District of Idaho. D.C. No. CR-91-000002-S-EJL. D.C. No. CR-91-000002-S-EJL. Edward J. Lodge, District Judge, Presiding.
Before: James R. Browning, Eugene A. Wright, and Ferdinand F. Fernandez, Circuit Judges Opinion by Judge Fernandez.
FERNANDEZ, Circuit Judge:
The United States appeals the district court's grant of Paul O'Connell's motion for acquittal and Daniel Hart's motion for acquittal following their jury convictions for conspiracy to distribute cocaine. Hart also made a motion for a new trial. The court granted these motions after the jury acquitted O'Connell of distributing or aiding and abetting the distribution of cocaine. Hart appeals his jury convictions for distributing cocaine on the grounds that he was entrapped and that the government's conduct was outrageous. We reverse the grant of the motions and otherwise affirm.
Hart and O'Connell were charged with distributing or aiding and abetting the distribution of cocaine as well as conspiring together or with known or unknown persons to distribute cocaine. Hart was also charged with two separate counts of distributing cocaine. This prosecution arose from a government sting operation in Sun Valley, Idaho. Wayne Joler, a former resident of Sun Valley, was indicted on charges of drug trafficking and income tax evasion. Joler pled guilty to one count of income tax evasion and agreed to become a government informant. Joler's sentence was suspended so that he could return to Idaho and re-establish his contacts with cocaine suppliers.
Joler had used cocaine with Hart in the past, and upon returning to Idaho he struck up a friendship with Hart. Joler testified that when he raised the subject of buying cocaine, Hart told him that he was "in the business":
Q. Prior to July 12, had you been talking to [Hart] about buying cocaine?
A. I would think so, yes.
Q. How would that come up?
A. Well, [Hart] was working in a restaurant, . . . and I was over there one night for a golf thing, and I just kind of, basically, asked him if he was in the business, and he said yes, and can we do anything, and he said yes, we can.
Hart undertook to obtain cocaine for Joler. On July 12, 1989, Joler gave Hart $800 for the purchase of cocaine. Hart left to meet a source he called "Doug" and was followed to the corner of Highway 75 and Greenhorn Road, where he met with an unidentified person in a small silver car. Hart returned to his residence and gave the cocaine to Joler in exchange for an additional $100. On July 24, 1989, Joler purchased cocaine from Hart for $450.
The events of August 24, 1989 implicated O'Connell as well as Hart. Joler sought to purchase a larger amount of cocaine - $2,000 worth - and both Hart and Joler went in search of Hart's source, "Paully." In an attempt to locate Paully, Hart took Joler first to a construction site where Paully was working, then to Paully's residence, and then back to the construction site. Hart eventually found Paully, identified as O'Connell, standing outside the construction site. Hart told O'Connell that they had $1,500 in cash. Hart and O'Connell conversed about golf and the purchase of a tool box; Joler testified that the conversation was about the purchase of cocaine. O'Connell said that he would check and call Hart in twenty minutes. Hart told Joler that O'Connell was going to pick up the cocaine. Joler and Hart then went to a restaurant, where Hart said he saw Paully drive by and that Paully was going to Hart's residence. At this moment O'Connell's car drove by. Hart and Joler returned to Hart's residence.
O'Connell left the construction site after Hart and Joler and briefly visited an art gallery. O'Connell placed a phone call at the same time as Hart received a phone call from his source delaying the transaction until the evening. Joler returned to Hart's residence at 7:00 p.m. that evening with $2,000. O'Connell subsequently drove past Hart's residence and proceeded to meet with the owner of the art gallery. O'Connell then went to Hart's residence, but left when he apparently saw two officers conducting surveillance. After receiving a phone call, Hart informed Joler that his source had "bad vibes" and that Hart needed to use Joler's car to pick up the cocaine. Hart drove to the corner of Highway 75 and Greenhorn Road where he was seen meeting with O'Connell. Hart returned to his residence and gave Joler cocaine which he claimed to have purchased from "Herby."
Joler later made unsuccessful attempts to purchase cocaine from Hart. On August 30, 1989, Joler delivered $4,000 to Hart for a cocaine purchase. O'Connell subsequently visited Hart's residence briefly. Joler met with Hart twice more that day but Hart was unable to arrange a purchase and eventually returned Joler's money. The next day Joler had four telephone conversations with Hart but again Hart was unable to arrange a purchase.
O'Connell testified that his conversation with Hart at the construction site was about playing golf and that he went to the art gallery to check on a job. O'Connell and his alibi witnesses said that he was mountain bike riding at the time ...