United States v. Cooper

33 M.J. 356, 1991 CMA LEXIS 1320, 1991 WL 195074

Opinions

Opinion

COX, Judge:

Agents of the Criminal Investigation Command (CID) initiated sting operations to clean-up a drug ring purportedly operating within its own headquarters.¹ Towards this end, CID agents engaged the assistance of Rodney Powell, a known cocaine addict, who had previously worked at the headquarters as a driver for the CID commander.² The agents sought information from Powell because of his knowledge of drug use within the facility. Once on-board as a registered source, Powell divulged the names of five persons who he knew had sold drugs at the facility in question while he was there. Appellant’s name was included.

Appellant, a recovering cocaine addict, was enrolled in the Army’s Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) when Powell identified him to CID.³ Powell then contacted appellant, asking if he knew where he (Powell) could get some drugs. Appellant responded negatively, stating he was not “using” drugs and was not “doing anything else.” However, Powell continued calling. He testified that he told appellant, “I had this white boy that had some money and wanted to sell some, and I didn’t know where to get any from, and did he know?” Appellant finally agreed to help Powell.

A meeting was set. On December 2, 1988, appellant led Powell and an undercover CID agent to a crack house. Once at the house, appellant entered and purchased the drugs and gave them to the undercover CID agent. The same sequence of events took place on December 5, 1988.

Appellant pleaded not guilty to the Charge and its two specifications of cocaine distribution, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a, but he did not dispute his role in the distribution of the drugs. Instead, his strategy placed the Government on trial by arguing that he was enticed back to the world of drugs when he was most vulnerable because of his rehabilitation. He raised the defense of entrapment. In addition, appellant asserted that the action taken by Powell and the CID violated Army and CID regulations governing participants in the ADAPCP. Army Regulation (AR) 600-85, Personnel — General: Alcohol and Drug Abuse Prevention and Control Program (21 October 1988, effective 21 November 1988); AR 195-2, Criminal Investigation: Criminal Investigation Activities (30 Oct.1985 Update). However, appellant's position proved futile; the members found him guilty of both specifications of distributing cocaine. The Court of Military Review affirmed the findings and sentence⁴ in a short-form opinion dated November 5, 1990.

Appellant challenges his conviction on two fronts.. First, he claims that he was denied due process of law because government agents solicited his involvement in the crimes while he was in the ADAPCP. Second, he asserts that the Government failed to overcome appellant’s entrapment defense. We decide both questions adversely to appellant.

Due Process

Appellant’s due process claim arises out of language in paragraph 3-7, AR 195-2, which states:

In compliance with the Army’s ADAPCP policy, CID will investigate participants in ADAPCP for controlled substance offenses only if the offense occurred after entry into the program or if the participant had been identified as a suspect or subject prior to the time of entry into the program. Participants in ADAPCP will not be knowingly approached by CID special agents for the purpose of soliciting information about controlled substances distribution unless the participant voluntarily offers to provide such information. (See AR 600-85).

Thus, the sole question we must decide is whether a special agent of the CID knowingly approached appellant and got him involved in this transaction in violation of Army regulations. After consideration of the evidence, the military judge found

[t]hat the CID did not know that the accused was in any sort of rehabilitation program until AFTER he had been targeted as a possible source of the distribution of drugs.

There is ample evidence of record to support the factual findings of the military judge; hence they should not be disturbed on appeal. United States v. Burris, 21 MJ 140 (CMA 1985).

Appellant also frames his due-process argument in terms of equity or fundamental fairness, claiming that the adventure presented by the facts of this case corrupts the underlying purposes of the Army drug rehabilitation program. There are two regulations in question: (1) AR 600-85, Personnel — General: Alcohol and Drug Abuse Prevention and Control Program; and (2) AR 195-2, Criminal Investigation: Criminal Investigation Activities. Both regulations contain language prohibiting government agents ⁵ from “soliciting information” from participants in the ADAPCP. Para. 3-7, AR 195-2; see para. 2-16a, AR 600-85. Both regulations are designed to encourage drug abusers to come forward and seek help for their problems and offer a great deal of protection to the servicemember who avails himself of the opportunity to overcome drug related problems.

If we were convinced that the CID knowingly sought out a member who was in the program for the purpose of setting him up for a subsequent arrest, then clearly we would have to find that a violation of due process occurred. But that is not the case here.

Many factors lead to this conclusion. First, Powell, the informant, and appellant (during the days of their drug addiction) used drugs, and each would often purchase drugs for the other. Moreover, it is quite obvious that the CID was not using appellant’s participation in the drug rehabilitation program to force him to give them information inculpating other drug users. Powell, the informant, was given a free hand to try to catch persons distributing drugs. The record does not support a conclusion that Powell overreached to encourage appellant to do anything that appellant was not already willing to do and had done frequently in the past.

With only a little prompting, appellant agreed to a meeting with Powell and the undercover CID agent; he took the pair to a crack house; he entered the crack house; he negotiated the sale of 11.6 grams of cocaine; he purchased the cocaine along with 18 small ziplock-style plastic bags; and he delivered it to the undercover CID agent. This same sequence of events occurred on December 5,1988, with 13 grams of cocaine and 26 small ziplock bags being purchased and delivered by appellant. Moreover, driving home after the second transaction, appellant mentioned the possibility of receiving compensation for his services.

It is not the purpose of drug rehabilitation programs to provide a safe harbor for those who continue to engage freely and voluntarily in subsequent criminal activity.

Entrapment Defense

Appellant also contends that he was lured into the distribution by the government agents when he had no predisposition to do so otherwise. Under RCM 916(g), Manual for Courts-Martial, United States, 1984, “[i]t is a defense that the criminal design or suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense.”

Once an accused raises the defense of entrapment, the Government bears the burden of proving beyond a reasonable doubt that the accused was predisposed to commit the crime and merely needed the opportunity. The resolution of the issue is then left for the factfinder.⁶ United States v, Vanzandt, 14 MJ 332, 343 (CMA 1982).

Therefore, we must decide whether the Government presented sufficient facts to overcome appellant’s entrapment defense. It clearly did. The CID asked an informant to supply names of persons who might be targeted as drug dealers. The informant gave the CID appellant’s name. The informant called appellant seeking his help in finding drugs for an unknown third party. Although initially appellant indicated his reluctance to get involved, he nevertheless jumped into the adventure with zeal and success.

The defense was submitted to the court members with proper instructions, and the members rejected it. Panel members, during voir dire, were questioned concerning entrapment. Defense counsel’s opening statement prepared and educated the members on entrapment, and he solicited testimony from witnesses pertaining to whether appellant was entrapped. Defense counsel’s closing argument talked of entrapment, and the military judge instructed the members on entrapment. The members were thoroughly versed on the defense of entrapment; from the moment of their selection to the judge’s final instructions, they knew of the defense. Our review of the record reveals nothing that would lead this Court to determine that, as a matter of law, the Government failed to meet its burden of proving beyond a reasonable doubt that appellant was not entrapped.

The decision of the United States Army Court of Military Review is affirmed.

1 . So far as the record reveals, no CID agents were involved in this drug activity.

2 . Powell left the Army months earlier under honorable conditions. However, his drug addiction soon left him unemployed and penniless. As a desperate effort, he submitted enlistment papers to Army recruiters, lying about his drug abuse. In or about November of 1988, authorities arrested Powell for stealing his girlfriend’s television set, which he had pawned to get money for his cocaine dependence. It was at this point that CID learned of Powell’s situation and considered the possibility of getting his assistance in breaking the drug ring.

3 . Appellant's story is a sad commentary on the lure and addictive nature of cocaine, and specifically crack cocaine. Appellant described the addictive lure of the drug as follows:

It — it’s—it’s hard to explain. If you take every Christmas, every Fourth of July, every New Year’s, every orgasm that you’ve ever[ ]had in your entire life and multiply it several thousand times and then cram it into your body in an instant, that was [the] pleasure of cocaine — crack cocaine.

Crack cocaine ruled appellant’s life; his wife left him; sleep was short and far between; and his automatic teller card financed an addiction that depleted his savings account.

This behavior persisted until appellant found himself one morning on the floor of a "crack house" in Washington, D.C. He had smoked an entire paycheck on a crack cocaine binge. At this low point, he turned for help. He sought out the drug-rehabilitation center at Fort Myer, Virginia. There he requested treatment and was accepted into the Army’s Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

The. program lasted 6 months, on an out-patient basis. Appellant attended daily counseling sessions and nightly meetings of Narcotics Anonymous. Family and friends rallied to his assistance: His older brother, an Air Force officer, took 30 days' leave to help appellant overcome his addiction. However, all efforts failed. From the time appellant entered the ADAPCP, he came-up positive on all ten drug tests conducted on him through September 6, 1988.

On September 9, 1988, appellant was transported to the Navy drug-treatment center in Miramar, California, which consisted of 6 weeks of intensive in-house treatment. Finally attaining success, appellant returned home at last able to resist crack cocaine. His treatment continued at home, at Fort Myer, on an out-patient basis. Since appellant’s return from Miramar, all eleven drug tests had been negative.

4 . Appellant was sentenced to a dishonorable discharge and 5 years’ confinement. The sentence was approved by the convening authority on October 11, 1989.

5 . Our use of the term "government agent” is generic for the personnel described by the regulations. Both regulations identify “USACIDC special agents and other investigative personnel, to include sources” as government agents. Para. 2-5b(5), Criminal Investigation Command Regulation 195-15; see para. 2-16a, AR 600-85. For purposes of this opinion, both the CID agent and registered source are government agents.

6 . Where the defense is one of denial of due process, the military judge must make the determination. United States v. Vanzandt, 14 MJ 332, 343 (CMA 1982). However, this does not apply here because there was reasonable suspicion on the part of the government agents prior to the sting operation taking place.