United States v. Joseph D. Harris A/K/A Sonny Joe Harris (92-1455) Alton Kilbourn (92-1457)

9 F.3d 493, 39 Fed. R. Serv. 1314, 1993 U.S. App. LEXIS 28994, 1993 WL 454231
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 9, 1993
Docket92-1455, 92-1457
StatusPublished
Cited by100 cases

This text of 9 F.3d 493 (United States v. Joseph D. Harris A/K/A Sonny Joe Harris (92-1455) Alton Kilbourn (92-1457)) 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. Joseph D. Harris A/K/A Sonny Joe Harris (92-1455) Alton Kilbourn (92-1457), 9 F.3d 493, 39 Fed. R. Serv. 1314, 1993 U.S. App. LEXIS 28994, 1993 WL 454231 (6th Cir. 1993).

Opinions

RALPH B. GUY, JR., Circuit Judge.

Defendants, Joseph Harris and Alton Kilb-ourn, appeal their convictions for their roles in the attempted purchase of cocaine from undercover federal agents. Defendants raise six issues on appeal: (1) whether the district court erred by failing to conclude that Harris was entrapped as a matter of law; (2) wheth[496]*496er prejudicial error occurred when the district court responded to a note from the jury without notifying counsel; (3) whether the admission of a tape recorded conversation between Harris and a confidential informant was proper; (4) whether the court erred in denying Kilbourn’s motion for severance; (5) whether the court abused its discretion in excluding Kilbourn’s statement offering to take a polygraph test; and (6) whether the evidence was sufficient to support Kilbourn’s conviction. We affirm.

I.

The federal Drug Enforcement Administration (DEA) began an investigation of Joseph Harris in March of 1990 with the assistance of a confidential informant, Larry Awdish. Awdish, a former drug dealer, had been convicted of federal drug charges, and he agreed to cooperate with the government in exchange for consideration at sentencing. Awdish first met Harris in 1987, when Harris began purchasing cocaine from Awdish. Initially, Harris bought small amounts of cocaine from Awdish, but Harris subsequently began purchasing one-half kilogram amounts. This continued until Awdish’s arrest in May 1987.

Awdish and Harris continued to keep in contact with each other. In 1989, Awdish spotted Harris at a local nightclub where Harris worked as a disc jockey, and Harris expressed interest in resuming purchases of cocaine from Awdish. According to Awdish, Harris was unable to finance a large purchase at that time. At trial, Harris claimed that the pair did not discuss cocaine at their September 1989 meeting, and that Harris did not see Awdish again until March of 1990. However, phone records would appear to corroborate Awdish’s story, for a summary of telephone logs from the fall of 1989 revealed that Harris placed five telephone calls to Awdish in a four-day period in early October 1989.

In March of 1990, Awdish again saw Harris. They visited for a few minutes and exchanged phone numbers, but Awdish testi-fled that the meeting with Harris did not result in a discussion of cocaine. Awdish did, however, report his chance encounter with Harris to his DEA ease agent, and it was decided that Awdish should contact Harris to gauge his interest in purchasing cocaine. Awdish placed the call, but Harris responded that he was trying to “go straight with his life” and therefore rejected Awdish’s offer. The conversation then turned to real estate, and Harris, who had become a real estate agent, set up an appointment to show Awdish a condominium for sale.

The next day, Harris phoned Awdish and told him that arrangements had been made for Awdish to view the condominium. In addition, according to Awdish, Harris told him that he might be interested in a cocaine deal. When they met, Awdish and Harris discussed cocaine quantity and prices and arranged for Awdish to meet Ronald Morgan, Harris’ partner from Flint, Michigan,1 at a local restaurant. Harris also told Awdish to quote Morgan a price $1,000 over the purchase price so that Harris could receive an extra $1,000. Harris, Morgan, and Awdish met at a Denny’s restaurant in South-field, Michigan, on March 22,1990, to discuss the purchase of one to four kilograms of cocaine. The buy was to have occurred two days later, but the meeting did not occur. The parties then rescheduled for March 26 at the same Denny’s location.

On that day, Awdish met with co-defendants Morgan and Kilbourn. Harris already had spoken with Awdish and explained that he would not be present at the meeting because he was busy at the real estate office. Once in the restaurant, Morgan introduced Kilbourn to Awdish as his father-in-law. In Kilbourn’s presence, Morgan showed Awdish a device that he claimed could detect whether Awdish was wired with a microphone. Awdish was not wearing a wire, and Morgan then handed Awdish a folder containing a large envelope from Continental Vinyl Window Company with $20,000 wrapped in rubber bands. This represented payment for two kilograms of cocaine. Kilbourn then stated [497]*497that they planned to take the cocaine to Flint and would return with the money to purchase an additional two kilograms of cocaine. Awdish left the table and called DEA Agent Gilbert to tell him that he had received the money.

Within half an hour, DEA Agent Black-wood entered the restaurant and walked to the table. Posing as a drug supplier, Black-wood asked Morgan and Kilboum if they had the money. Kilbourn nodded his approval to Morgan, who then slid the folder to Black-wood. After Blackwood received the money, Morgan returned the folder to Kilboum, and Awdish left to pay the bill. Kilbourn joined Awdish. Blackwood and Morgan then discussed exchanging the money for the cocaine in the parking lot, but Morgan told Black-wood that Kilboum would decide how the deal would occur because he “runs the show.” As they all departed the restaurant, agents arrested the defendants. Morgan attempted to discard the device that monitored wires and microphones, but agents retrieved it. When arrested, Kilbourn had $940 wrapped in the same color rubber bands and in approximately the same denominations as the $20,000 used in the drag buy. Later that day, defendant Harris paged Awdish on his beeper. Awdish returned the call and told Harris that a bust had occurred, and they were all arrested.

A grand jury indicted Harris, Kilbourn, and Morgan and charged each of them with conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841, and attempted possession with intent to distribute cocaine in violation of 21 U.S.C. § 846. Harris also was charged with unlawful use of a communication facility in violation of 21 U.S.C. § 843. A jury found Harris and Kilbourn guilty on all counts. Harris was sentenced to 78 months’ imprisonment with four years’ supervised release. Kilbourn received a 60-month prison sentence and four years’ supervised release.

II.

A. Entrapment

We first consider Harris’ argument that he was entrapped as a matter of law. Harris contends that it was undisputed that he refused Awdish’s offer to sell him cocaine in September 1989, it was undisputed that Harris was in treatment for his addiction, and it was undisputed that Harris informed Awdish in March of 1990 that he had changed his life. Given these allegedly undisputed facts, Harris asserts that he was entrapped unless the government proved his predisposition beyond a reasonable doubt. This the government failed to do, according to Harris. At trial, Harris testified that it was Awdish and not Harris who initiated conversations about cocaine after Harris had rejected Awdish’s original overtures in March of 1990. According to Harris, he reluctantly agreed to purchase cocaine from Awdish only after Awdish threatened Harris and his family and “called in” the debt Harris owed for all of the free cocaine he received from Awdish in 1987.

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Bluebook (online)
9 F.3d 493, 39 Fed. R. Serv. 1314, 1993 U.S. App. LEXIS 28994, 1993 WL 454231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-d-harris-aka-sonny-joe-harris-92-1455-alton-ca6-1993.