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United States v. Palmer

filed*fn*: May 12, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FRANCIS C. PALMER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Idaho. D.C. No. CR-90-39-EJL. Edward J. Lodge, District Judge, Presiding.

Before: Pregerson, Trott, and Kleinfeld, Circuit Judges.

MEMORANDUM

Francis C. Palmer appeals his jury conviction on four counts of cocaine distribution, in violation of 21 U.S.C. § 841(a)(1) (1988). Palmer argues the district court abused its discretion in failing to grant a mistrial based on alleged prejudicial remarks made by the prosecutor. Palmer also challenges the district court's decision to admit into evidence cocaine which he alleged differed substantially in physical appearance from the cocaine sent to the Drug Enforcement Agency ("DEA") laboratory for analysis. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 (1988), and we affirm.

I

Steve Mulligan, a former "collector" for a Mafia-type organization, was working with the DEA as a confidential informant. On January 10, 1990, Mulligan contacted the DEA to report that Mike Mallery was selling cocaine in Boise, Idaho. Utilizing money supplied by the DEA, Mulligan arranged to purchase two ounces of cocaine from Mallery. Mulligan met Mallery at a bar in Caldwell, Idaho. Palmer was with Mallery. Palmer left the presence of Mulligan and Mallery to attempt to contact his "source." When Palmer later met Mallery and Mulligan, Palmer advised Mulligan he was unable to locate his drug source. DEA agents surveilled and recorded the meeting.

Mulligan testified that when he met Mallery and Palmer at the home of a mutual friend later the same day, Palmer produced an ounce of cocaine and an ounce of methamphetamine from his pocket. Because Mulligan had already returned the money to the DEA, Mulligan made no drug purchase at that time.

On February 6, 1990, Palmer was attempting to locate Mulligan. He used a telephone number given to him by Mulligan. The number was for a "shop" where Mulligan was supposedly employed. The telephone number was actually for a DEA undercover telephone. Palmer knew the owner of the business where Mulligan was supposedly employed was named "Bob." DEA Special Agent Bob Dunne received the call and introduced himself to Palmer as the person Mulligan had identified as his boss. Palmer informed Agent Dunne he had two ounces of cocaine he would be willing to sell for $2,800. Later that same day, Palmer met with Agent Dunne and delivered two ounces of 85% pure cocaine. This transaction was recorded on audio and video tapes, which were played for the jury.

Palmer called the DEA undercover telephone again on February 14, 1990, and left a message for Agent Dunne. Agent Dunne returned Palmer's telephone call that same day and learned Palmer had another two ounces of cocaine to sell. Shortly after speaking on the telephone, Palmer and Agent Dunne met to conclude the transaction. Palmer delivered two ounces of 84% pure cocaine to Agent Dunne in exchange for $2,400. During this tape recorded conversation, Palmer offered to obtain large quantities of cocaine for Agent Dunne from a source in Las Vegas. Palmer also asked Dunne if he wished to purchase marijuana or methamphetamine.

After the February 14 transaction, the undercover investigation focused primarily on Palmer's methamphetamine manufacturing and distribution activities. However, Agent Dunne still occasionally purchased cocaine from Palmer. On March 26, 1990, Agent Dunne purchased seven ounces of cocaine from Palmer for $8,400. Palmer attempted to sell cocaine to Agent Dunne on March 9, April 4, 5, 12, 13, 24, 30, and May 21 and 31, 1990. Agent Dunne did not accept Palmer's offers on these occasions. On June 6, 1990, Agent Dunne purchased one-half pound of cocaine from Palmer for $9,200. Agent Dunne purchased cocaine from Palmer a total of four times.

The DEA investigation culminated in the June 7, 1990 arrest of Palmer and two coconspirators after the latter took possession of a large quantity of methamphetamine precursor chemicals. Among other charges, Palmer was indicted on four counts of cocaine distribution in violation of 21 U.S.C. § 841(a)(1). The methamphetamine and cocaine cases were tried separately. This appeal only involves Palmer's cocaine distribution.

Palmer did not dispute the four deliveries of cocaine to Agent Dunne. Instead, he argued at trial that he was entrapped into selling the cocaine. Palmer attempted to establish that Mulligan had told him he was a "hit man" for the Mafia. According to Palmer, Mulligan (1) showed him an assault rifle he kept in his vehicle, (2) boasted about kidnapping and injuring people, (3) made threats to "mess up" Mallery, and (4) implicitly threatened harm to Palmer and his two-year-old son if Palmer did not sell drugs to "Bob." Palmer testified he believed Mulligan would harm him and his son if he did not sell drugs to Agent Dunne, therefore he sold the cocaine to Agent Dunne only in an attempt to satisfy Mulligan.

During the trial, Palmer challenged the admission of the cocaine introduced by the government. He argued the government failed to properly and adequately establish the chain of custody. To support his argument, Palmer noted the substance in Exhibit 14 that was sent to the DEA for testing was white, but the substance in Exhibit 14 that was offered into evidence was yellowish-brown. Also, Exhibit 20 had been repacked from seven small bags to one large and one small bag.

During the government's cross-examination of Palmer, the government questioned Palmer about whether he had sold drugs prior to meeting Mulligan. The government asked him specifically about an incident where two law enforcement officers discovered vials of cocaine and methamphetamine on Palmer. Palmer denied the drugs were found on his person, claiming they were found in somebody else's car. Because Palmer implied the state case was dismissed because the drugs were not his or because he was innocent, the prosecutor responded, "Because you were in jail on these charges --" The court immediately told the jury the prosecutor's question was not evidence of anything, but merely required a "yes" or "no" answer from Palmer. To impeach Palmer, Officer Todd Littlefield testified for the prosecution later in the trial that he found the drugs in Palmer's coat pocket.

Palmer made a motion for a mistrial based on the prosecutor's statement. Palmer argued the statement told the jury he was incarcerated at the time of trial and was intentionally designed to prejudice Palmer. The district court denied the motion. Despite the district court's offer and willingness to instruct the jury ...


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