United States v. Cromwell Bost

536 F. App'x 626
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 26, 2013
Docket12-1780
StatusUnpublished
Cited by1 cases

This text of 536 F. App'x 626 (United States v. Cromwell Bost) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cromwell Bost, 536 F. App'x 626 (6th Cir. 2013).

Opinion

OPINION

FREDERICK P. STAMP, JR., Senior District Judge.

A jury convicted defendant-appellant Cromwell Bost (“Bost”) on five separate charges. These charges included three counts of distribution of a controlled substance and one count of possession with intent to distribute a controlled substance, all in violation of 21 U.S.C. § 841(a)(1). The jury also convicted the defendant of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Bost appeals, arguing that: (1) he was entitled to a finding of entrapment as a matter of law; (2) the government and district court unconstitutionally interfered with Bost’s ability to present a defense by denying him access to a confidential informant; and (3) his sentence was substantively unreasonable due to the district court deny *629 ing Bost a downward departure based on his mental health issues. For the reasons stated below, we affirm the defendant’s conviction and sentence.

I. Background

In October 2009, a confidential informant (“informant”) notified Bureau of Alcohol, Tobacco, and Firearms Agent Deon Hogan (“Agent Hogan”) that Bost was in possession of crack cocaine and a firearm. Agent Hogan then created the undercover identity of “J.D. the landscaper” and provided the informant -with a fictitious job application for his landscaping company, which the informant was to give to Bost. Bost filled out the application and returned it to the informant, who then gave it to Agent Hogan. The informant allegedly told Bost that J.D. would hire him for snow removal if Bost would sell him crack cocaine.

In June 2010, Agent Hogan started contacting Bost through the cellular phone number Bost provided on the job application. Agent Hogan sought to purchase drugs from Bost during the communications. The first sale took place on June 3, 2010. This was the only sale where the informant was present. No charges were brought against the defendant based on this sale. Then, on June 9, 2010 and again on June 10, 2010, Bost sold Agent Hogan crack cocaine without the informant present. During the June 10, 2010 purchase, Bost indicated he also had heroin available for purchase.

For the next few months, Bost and Agent Hogan were not in frequent contact. On October 26, 2010, however, Agent Hogan called Bost to purchase a gun, crack cocaine, and heroin. During the phone call, they discussed the price of the drugs and the gun. When Agent Hogan contested the price of the drugs, Bost defended his price by stating that he dealt “more with quality than quantity.” (Call Tr. 10/26/10 *7.) Bost also stated that he could not price himself out of business and that he had been “in business for 7 years.” Id. In further defense of his prices, Bost informed Agent Hogan that Agent Hogan could “cut it and weaken it down” once he bought it to make the two grams of the drug into four grams. Id. at *4. Near the end of the call, when discussing when to meet to make the purchase, Bost told Agent Hogan that Agent Hogan could “come through now” if he wanted to, indicating that Bost had the items ready for purchase. Id. at *9. Agent Hogan, however, told Bost that he was unable to meet with him until another day.

On the day of the purchase, Bost and Agent Hogan spoke on the phone three times. They discussed the price of the drugs and aspects of the gun that Agent Hogan was to purchase from Bost. When the purchase took place, Bost did not have the gun for Agent Hogan to purchase, but he did have the drugs and his own personal gun. Agent Hogan offered to purchase this gun, but. Bost repeatedly refused. During the purchase, Bost explained exactly how to cut and weaken the heroin to make a gram of the drug into two grams. Bost also told Agent Hogan to call him the next day so he could show him the gun they were discussing.

In February 2011, Agent Hogan again contacted Bost to purchase drugs. During the first phone call about the meeting, Bost said that there was a shortage of crack cocaine that could affect the price of the drug. During the next two phone calls setting up the meeting, Bost and Agent Hogan discussed the price and the quantity of the drugs that Agent Hogan was interested in purchasing. On the date of the meeting, the police planned to arrest Bost. After a short foot chase, Bost was eventually arrested. The police found a *630 gun, crack cocaine, and heroin in Bost’s car. After a search of his person, the police located a small digital scale and additional crack cocaine and heroin in Bost’s pockets.

Seven charges were brought against Bost: three counts of distribution of a controlled substance, one count of possession with intent to distribute a controlled substance, one count of being a felon in possession of a firearm, and two counts of possessing a firearm in furtherance of a drug trafficking crime. At trial on these charges, Bost attempted to establish the defense of entrapment. Bost testified that the informant told him that, in exchange for selling crack cocaine to Agent Hogan, Agent Hogan would provide Bost with a snow removal job at the fictitious landscaping business. Bost also testified that he had bought a snow blower in preparation for working in the snow removal business. Bost further stated that he was not selling drugs before he was approached by Agent Hogan, and that he did not sell drugs to anyone other than Agent Hogan.

Bost moved for the production of the informant three separate times during the litigation. Bost first moved for production during a pretrial hearing. The district court denied this motion because it found that Bost had not produced sufficient evidence to show how the informant would assist in Bost’s defense. Bost then moved for the production of the informant after the close of the government’s case and again at the close of his own case. The district court denied both motions. Therefore, the informant was not produced and did not testify at Bost’s trial.

The jury convicted Bost on five of the seven charges. Specifically, the jury convicted him of three counts of distribution of a controlled substance, one count of possession with intent to distribute a controlled substance, and one count of being a felon in possession of a firearm. At sentencing, Bost argued for a downward departure based on mental health issues, which included Bost being diagnosed with paranoid schizophrenia. The district court found that the mental health issues did not rise to the level of supporting such departure from the advisory guidelines. Thus, based on Bost’s criminal history and his conviction, the district court stated that the applicable advisory guideline range was 210 months to 262 months of imprisonment. After considering the sentencing guidelines and factors set out in 18 U.S.C. § 3553(a) as well as other factors in the record, the district court imposed a sentence of 210 months of imprisonment with three years of supervised release to follow. The district court, however, recommended that Bost be initially placed at a facility that could offer mental health screening, evaluation, and training.

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Cite This Page — Counsel Stack

Bluebook (online)
536 F. App'x 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cromwell-bost-ca6-2013.