United States v. Stacey Gunter and Martin Manuszak

741 F.2d 151, 1984 U.S. App. LEXIS 19537
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 15, 1984
Docket84-1101, 84-1102
StatusPublished
Cited by25 cases

This text of 741 F.2d 151 (United States v. Stacey Gunter and Martin Manuszak) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Stacey Gunter and Martin Manuszak, 741 F.2d 151, 1984 U.S. App. LEXIS 19537 (7th Cir. 1984).

Opinion

PELL, Circuit Judge.

Defendants appeal their convictions for various cocaine trafficking offenses. At trial defendants admitted their involvement in the offenses, but claimed that they had been entrapped by the Government’s confidential informant. The jury rejected this defense, and defendants now claim that there was insufficient proof to prove beyond a reasonable doubt that they were not entrapped. Defendants also claim that the court erred in not reducing their sentences in consideration of misconduct by the chief Drug Enforcement Administration (DEA) agent assigned to the case.

I Facts

During February of 1983 Patrick Gannon began to work as an informant for the DEA. As with many informants, Gannon was not motivated by a fervent desire to combat crime, but rather by a promise that his work would reduce the consequences of his own criminal conduct. In return for setting up purchases from drug dealers Gannon was to receive consideration on charges that he stole a late model Corvette Stingray automobile. Gannon also received $100 for every purchase.

From February 11, 1983, until April 5, 1983, Gannon made an unknown number of phone calls to defendant Manuszak. On April 5 Gannon called Manuszak and agreed to meet at a Shakey’s Pizza to buy cocaine. Shortly thereafter Manuszak and defendant Gunter arrived at Shakey’s Pizza and talked with Gannon. Gannon gave Ma-nuszak $1,200. Manuszak showed Gannon several thousand dollars in cash. The group made arrangements to meet at Gun-ter’s apartment to consummate the transaction. Gannon followed Gunter to her apartment, while Manuszak went to collect the cocaine. Manuszak arrived at Gunter’s apartment with a large quantity of cocaine, half of which he gave to Gannon. Later analysis revealed that Gannon received 12.3 grams of cocaine.

On April 28, 1983 Gannon called Gunter and arranged to buy cocaine directly from her. Gannon and Gunter met at Shakey’s *153 Pizza that evening. Gunter sold Gannon a bag allegedly containing seven grams of cocaine for $600. The bag actually contained 4.5 grams of cocaine.

On June 15 Gannon called Manuszak and arranged to buy nine grams of cocaine for $1,200. Manuszak met Gannon at a nightclub that evening and delivered a bag of cocaine, which proved to contain only four grams of the drug. On June 22 Gannon called Manuszak and arranged to buy 14 grams of cocaine at Manuszak’s house. Gannon in fact received 11.4 grams for $1,000.

The Government attempted to introduce into evidence a tape recording of the conversations between Gannon and defendants. Defendants successfully objected to admission of the tape on the basis of its poor quality. No evidence was introduced as to the nature of the conversations between Gannon and defendants other than the fact that they pertained to drug deals.

Cross-examination of Gannon and the DEA agents involved in the case revealed that defendants had no prior criminal records and that Gannon had no contact with Gunter prior to April 5. Gannon admitted that he initiated contact with the defendants. During cross-examination Gannon also admitted involvement in one drug deal with an acquaintance and admitted that agent Litton, who was in charge of the investigation of defendants, was aware of Gannon’s criminal activity. Defense counsel had learned of this incident fortuitously through proceedings in another case. Agent Litton had failed to disclose the information to the United States Attorney.

II Sufficiency of the Evidence

Defendants assert that they raised the defense of entrapment and that the Government failed to introduce sufficient evidence from which the jury could find beyond a reasonable doubt that defendants were not entrapped. The legal principles behind defendants’ claim are well settled. Entrapment requires proof that the Government induced defendant to commit the crime and that defendant was not predisposed to commit the crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Thoma, 726 F.2d 1191, 1196 (7th Cir. 1984); United States v. Kaminski, 703 F.2d 1004 (7th Cir.1983). To raise the defense a defendant must produce evidence of both the Government’s inducement and his own lack of predisposition. Once a defendant accomplishes this, the burden shifts to the Government to prove beyond a reasonable doubt that the defendant was predisposed or that there was no Government inducement. Thoma, 726 F.2d at 1196. A defendant may raise the defense by showing that the Government’s evidence reveals some inducement and some reluctance on the part of the defendant. There is no requirement that a defendant testify or produce witnesses. Id.

Turning to the facts of this case, we have serious doubts as to whether there was even enough evidence of inducement or defendants’ lack of predisposition to raise the defense of entrapment. The only evidence of entrapment before the first sale was Gannon’s testimony that he made contact with Manuszak several times to set up the drug purchase, and that he paid $1,200 for what turned out to be 12.3 grams of cocaine. We are not impressed by defendants’ argument that Gannon’s admission that he made contact with Manuszak demonstrates either a lack of predisposition or Government inducement. Drug dealers are not known to call potential clients and solicit their business, rather a dealer who expects to stay out of jail is careful about to whom he sells. That Gannon made several calls to arrange the sale is also not extraordinary. Drug deals often take time to arrange. We are similarly unimpressed by defendants’ claim that $1,200 was such a large amount of money to pay for the cocaine that it amounted to undue inducement. This argument ignores that defendants claimed to be providing 14 grams, not 12.3 grams, and that it was only their own dishonesty that reaped them greater profit. Second, there was evidence that cocaine often sold for $100 a gram, so *154 $1,200 for more than 12 grams was not unusual. The mere solicitation by Gannon, and the offer of an opportunity to commit the crime, does not show entrapment. United States v. Townsend, 555 F.2d 152 (7th Cir.1977), cert, denied, 434 U.S. 897; United States v. Perry, 478 F.2d 1276 (7th Cir.1973), cert, denied, 414 U.S. 1005, 94 S.Ct. 363, 38 L.Ed.2d 241. The evidence concerning the later transactions was no more persuasive, and to a large degree it was irrelevant. The principal focus in any claimed entrapment case of necessity must be on the first transaction. If there was predisposition on that occasion, as it appears to us there was here, it is difficult to believe that defendants in making the subsequent sales developed a lack of predisposition, which was overcome by Government solicitation.

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Bluebook (online)
741 F.2d 151, 1984 U.S. App. LEXIS 19537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stacey-gunter-and-martin-manuszak-ca7-1984.